[Title 40 CFR ]
[Code of Federal Regulations (annual edition) - July 1, 2009 Edition]
[From the U.S. Government Printing Office]



[[Page i]]

          

          40


          Parts 100 to 135

                         Revised as of July 1, 2009


          Protection of Environment
          



________________________

          Containing a codification of documents of general 
          applicability and future effect

          As of July 1, 2009
          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)                                                3
  Finding Aids:
      Table of CFR Titles and Chapters........................     589
      Alphabetical List of Agencies Appearing in the CFR......     609
      List of CFR Sections Affected...........................     619

[[Page iv]]





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

                     Cite this Code: CFR
                     To cite the regulations in 
                       this volume use title, 
                       part and section number. 
                       Thus, 40 CFR 104.1 refers 
                       to title 40, part 104, 
                       section 1.

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

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                               EXPLANATION

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

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

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

LEGAL STATUS

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

HOW TO USE THE CODE OF FEDERAL REGULATIONS

    The Code of Federal Regulations is kept up to date by the individual 
issues of the Federal Register. These two publications must be used 
together to determine the latest version of any given rule.
    To determine whether a Code volume has been amended since its 
revision date (in this case, July 1, 2009), consult the ``List of CFR 
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative 
List of Parts Affected,'' which appears in the Reader Aids section of 
the daily Federal Register. These two lists will identify the Federal 
Register page number of the latest amendment of any given rule.

EFFECTIVE AND EXPIRATION DATES

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

OMB CONTROL NUMBERS

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

[[Page vi]]

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

OBSOLETE PROVISIONS

    Provisions that become obsolete before the revision date stated on 
the cover of each volume are not carried. Code users may find the text 
of provisions in effect on a given date in the past by using the 
appropriate numerical list of sections affected. For the period before 
January 1, 2001, consult either the List of CFR Sections Affected, 1949-
1963, 1964-1972, 1973-1985, or 1986-2000, published in eleven separate 
volumes. For the period beginning January 1, 2001, a ``List of CFR 
Sections Affected'' is published at the end of each CFR volume.

INCORPORATION BY REFERENCE

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

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




[[Page vii]]



REPUBLICATION OF MATERIAL

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

INQUIRIES

    For a legal interpretation or explanation of any regulation in this 
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the top of odd-numbered pages.
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or write to the Director, Office of the Federal Register, National 
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ELECTRONIC SERVICES

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CFR Sections Affected), The United States Government Manual, the Federal 
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register. The NARA site also contains links to GPO Access.

    Raymond A. Mosley,
    Director,
    Office of the Federal Register.
    July 1, 2009.







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                               THIS TITLE

    Title 40--Protection of Environment is composed of thirty-two 
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 
of part 52), parts 53-59, part 60 (60.1-end of part 60, sections), 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 of part 63) parts 64-71, parts 
72-80, parts 81-84, part 85-Sec.  86.599-99, part 86 (86.600-1-end of 
part 86), 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, parts 790-999, and part 1000 to end. 
The contents of these volumes represent all current regulations codified 
under this title of the CFR as of July 1, 2009.

    Chapter I--Environmental Protection Agency appears in all thirty-two 
volumes. Regulations issued by the Council on Environmental Quality, 
including an Index to Parts 1500 through 1508, appear in the volume 
containing part 1000 to end. The OMB control numbers for title 40 appear 
in Sec.  9.1 of this chapter.

    For this volume, Michele Bugenhagen was Chief Editor. The Code of 
Federal Regulations publication program is under the direction of 
Michael L. White, assisted by Ann Worley.


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                   TITLE 40--PROTECTION OF ENVIRONMENT




                  (This book contains parts 100 to 135)

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

chapter i--Environmental Protection Agency (Continued)......         104

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         CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)




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


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

                      SUBCHAPTER D--WATER PROGRAMS
Part                                                                Page
100-103         [Reserved]

104             Public hearings on effluent standards for 
                    toxic pollutants........................           5
105             Recognition awards under the Clean Water Act          11
108             Employee protection hearings................          14
109             Criteria for State, local and regional oil 
                    removal contingency plans...............          15
110             Discharge of oil............................          17
112             Oil pollution prevention....................          19
113             Liability limits for small onshore storage 
                    facilities..............................         133
116             Designation of hazardous substances.........         135
117             Determination of reportable quantities for 
                    hazardous substances....................         145
121             State certification of activities requiring 
                    a Federal license or permit.............         153
122             EPA administered permit programs: The 
                    national pollutant discharge elimination 
                    system..................................         158
123             State program requirements..................         273
124             Procedures for decisionmaking...............         301
125             Criteria and standards for the national 
                    pollutant discharge elimination system..         336
129             Toxic pollutant effluent standards..........         407
130             Water quality planning and management.......         417
131             Water quality standards.....................         432
132             Water quality guidance for the Great Lakes 
                    System..................................         515
133             Secondary treatment regulation..............         578
135             Prior notice of citizen suits...............         582

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                       SUBCHAPTER D_WATER PROGRAMS



                        PARTS 100-103 [RESERVED]



PART 104_PUBLIC HEARINGS ON EFFLUENT STANDARDS FOR TOXIC POLLUTANTS--Table of 

Contents




Sec.
104.1 Applicability.
104.2 Definitions.
104.3 Notice of hearing; objection; public comment.
104.4 Statement of basis and purpose.
104.5 Docket and record.
104.6 Designation of Presiding Officer.
104.7 Powers of Presiding Officer.
104.8 Prehearing conferences.
104.9 Admission of evidence.
104.10 Hearing procedures.
104.11 Briefs and findings of fact.
104.12 Certification of record.
104.13 Interlocutory and post-hearing review of rulings of the Presiding 
          Officer; motions.
104.14 Tentative and final decision by the Administrator.
104.15 Promulgation of standards.
104.16 Filing and time.

    Authority: Secs. 501 and 307(a) of the Federal Water Pollution 
Control Act, as amended (33 U.S.C. 1251 et seq., Pub. L. 92-500, 86 
Stat. 816).

    Source: 41 FR 17902, Apr. 29, 1976, unless otherwise noted.



Sec. 104.1  Applicability.

    This part shall be applicable to hearings required by statute to be 
held in connection with the establishment of toxic pollutant effluent 
standards under section 307(a) of the Act.



Sec. 104.2  Definitions.

    As used in this part, the term:
    (a) Act means the Federal Water Pollution Control Act, as amended, 
33 U.S.C. 1251 et seq., Public Law 92-500, 86 Stat. 816.
    (b) Administrator means the Administrator of the Environmental 
Protection Agency, or any employee of the Agency to whom the 
Administrator may by order delegate his authority to carry out his 
functions under section 307(a) of the Act, or any person who shall by 
operation of law be authorized to carry out such functions.
    (c) Agency means the Environmental Protection Agency.
    (d) Hearing Clerk means the Hearing Clerk, U.S. Environmental 
Protection Agency, 401 M Street SW., Washington, DC 20460.
    (e) Party means the Environmental Protection Agency as the proponent 
of an effluent standard or standards, and any person who files an 
objection pursuant to Sec. 104.3 hereof.
    (f) Person means an individual, corporation, partnership, 
association, state, municipality or other political subdivision of a 
state, or any interstate body.
    (g) Effluent standard means any effluent standard or limitation, 
which may include a prohibition of any discharge, established or 
proposed to be established for any toxic pollutant under section 307(a) 
of the Act.
    (h) Presiding Officer means the Chief Administrative Law Judge of 
the Agency or a person designated by the Chief Administrative Law Judge 
or by the Administrator to preside at a hearing under this part, in 
accordance with Sec. 104.6 hereof.



Sec. 104.3  Notice of hearing; objection; public comment.

    (a) Notice of hearing. Whenever the Administrator publishes any 
proposed effluent standard, he shall simultaneously publish a notice of 
a public hearing to be held within thirty days following the date of 
publication of the proposed standard. Any person who has any objection 
to a proposed standard may file with the hearing clerk a concise 
statement of any such objection. No person may participate in the 
hearing on the proposed toxic pollutant effluent standards unless the 
hearing clerk has received within 25 days of the publication of the 
notice of the proposed standards a statement of objection as herein 
described. In exceptional circumstances and for good cause shown the 
Presiding Officer may allow an objection to be filed after the filing 
deadline prescribed in the preceding sentence, which good cause must 
include at a minimum lack of actual notice on the part of the objector 
or any

[[Page 6]]

representative of such objector of the proposed standards despite his 
exercise of due diligence, so long as such later filing will not cause 
undue delay in the proceedings or prejudice to any of the parties.
    (b) Objections. Any objection to a proposed standard which is filed 
pursuant to paragraph (a) of this section shall meet the following 
requirements:
    (1) It shall be filed in triplicate with the hearing clerk within 
the time prescribed in paragraph (a) of this section;
    (2) It shall state concisely and with particularity each portion of 
the proposed standard to which objection is taken; to the greatest 
extent feasible it shall state the basis for such objection;
    (3) To the greatest extent feasible it shall (i) state specifically 
the objector's proposed modification to any such standard proposed by 
the Agency to which objection is taken, (ii) set forth the reasons why 
such modification is sought, and (iii) identify and describe the 
scientific or other basis for such proposed modification, including 
reference to any pertinent scientific data or authority in support 
thereof.

Any objection which fails to comply with the foregoing provisions shall 
not be accepted for filing. The Presiding Officer shall promptly notify 
any person whose objection is not accepted for any of the reasons set 
forth in this section, stating the reasons therefor.
    (c) Data in support of objection or modification. In the event that 
the time prescribed for filing objections pursuant to paragraphs (a) and 
(b) of this section is insufficient to permit an objecting party to 
fully set forth with such objection the basis therefor together with the 
information and data specified in paragraph (b)(3) of this section, he 
may so state at the time of the filing of such objection, and file a 
more complete statement of such basis, information, and data 
(hereinafter referred to as ``supplemental data'') within the time 
prescribed by this paragraph (c). The supplemental data herein described 
shall be filed not later than 40 days following publication of the 
proposed effluent standards.
    (d) Public comment. The notice required under paragraph (a) of this 
section shall also provide for the submission to the Agency of written 
comments on the proposed rulemaking by interested persons not filing 
objections pursuant to this section as hereinabove described, and hence 
not participating in the hearing as parties. The notice shall fix a time 
deadline for the submission of such comments which shall be not later 
than the date set for commencement of the hearing. Such comments shall 
be received in evidence at the commencement of the hearing. The 
Administrator in making any decision based upon the record shall take 
into account the unavailability of cross-examination in determining the 
weight to be accorded such comments.
    (e) Promulgation in absence of objection. If no objection is filed 
pursuant to this section, then the Administrator shall promulgate the 
final standards on the basis of the Agency's statement of basis and 
purpose and any public comments received pursuant to paragraph (d) of 
this section.



Sec. 104.4  Statement of basis and purpose.

    Whenever the Administrator publishes a proposed effluent standard, 
the notice thereof published in the Federal Register shall include a 
statement of the basis and purpose of the standard or a summary thereof. 
This statement shall include:
    (a) The purpose of the proposed standard;
    (b) An explanation of how the proposed standard was derived;
    (c) Scientific and technical data and studies supporting the 
proposed standard or references thereto if the materials are published 
or otherwise readily available; and
    (d) Such other information as may be reasonably required to set 
forth fully the basis of the standard.


Where the notice of the proposed rulemaking summarizes the full 
statement of basis and purpose, or incorporates documents by reference, 
the documents thus summarized or incorporated by reference shall 
thereupon be made available by the Agency for inspection and copying by 
any interested person.



Sec. 104.5  Docket and record.

    Whenever the Administrator publishes a notice of hearing under this 
part, the hearing clerk shall promptly establish a docket for the 
hearing. The

[[Page 7]]

docket shall include all written objections filed by any party, any 
public comments received pursuant to Sec. 104.3(d), a verbatim 
transcript of the hearing, the statement of basis and purpose required 
by Sec. 104.4, and any supporting documents referred to therein, and 
other documents of exhibits that may be received in evidence or marked 
for identification by or at the direction of the Presiding Officer, or 
filed by any party in connection with the hearing. Copies of documents 
in the docket shall be available to any person upon payment to the 
Agency of such charges as the Agency may prescribe to cover the costs of 
duplication. The materials contained in the docket shall constitute the 
record.



Sec. 104.6  Designation of Presiding Officer.

    The Chief Administrative Law Judge of the Agency may preside 
personally at any hearing under this part, or he may designate another 
Administrative Law Judge as Presiding Officer for the hearing. In the 
event of the unavailability of any such Administrative Law Judge, the 
Administrator may designate a Presiding Officer. No person who has any 
personal pecuniary interest in the outcome of a proceeding under this 
part, or who has participated in the development or enforcement of any 
standard or proposed standard at issue in a proceeding hereunder, shall 
serve as Presiding Officer in such proceeding.



Sec. 104.7  Powers of Presiding Officer.

    The Presiding Officer shall have the duty to conduct a fair hearing 
within the time constraints imposed by section 307(a) of the Act. He 
shall take all necessary action to avoid delay and to maintain order. He 
shall have all powers necessary to these ends, including but not limited 
to the power to:
    (a) Rule upon motions and requests;
    (b) Change the time and place of the hearing, and adjourn the 
hearing from time to time or from place to place;
    (c) Examine and cross-examine witnesses;
    (d) Admit or exclude evidence; and
    (e) Require any part or all of the evidence to be submitted in 
writing and by a certain date.



Sec. 104.8  Prehearing conferences.

    Prehearing conferences are encouraged for the purposes of 
simplification of issues, identification and scheduling of evidence and 
witnesses, the establishment of an orderly framework for the 
proceedings, the expediting of the hearing, and such other purposes of a 
similar nature as may be appropriate.
    (a) The Presiding Officer on his own motion may, and at the request 
of any party made within 20 days of the proposal of standards hereunder 
shall, direct all parties to appear at a specified time and place for an 
initial hearing session in the nature of a prehearing conference. 
Matters taken up at the conference may include, without limitation:
    (1) Consideration and simplification of any issues of law or fact;
    (2) Identification, advance submission, marking for identification, 
consideration of any objections to admission, and admission of 
documentary evidence;
    (3) Possible stipulations of fact;
    (4) The identification of each witness expected to be called by each 
party, and the nature and substance of his expected testimony;
    (5) Scheduling of witnesses where practicable, and limitation of the 
number of witnesses where appropriate in order to avoid delay or 
repetition;
    (6) If desirable, the segregation of the hearing into separate 
segments for different provisions of the proposed effluent standards and 
the establishment of separate service lists;
    (7) Encouragement of objecting parties to agree upon and designate 
lead counsel for objectors with common interests so as to avoid 
repetitious questioning of witnesses.
    (b) The Presiding Officer may, following a prehearing conference, 
issue an order setting forth the agreements reached by the parties or 
representatives, the schedule of witnesses, and a statement of issues 
for the hearing. In addition such order may direct the parties to file 
and serve copies of documents or materials, file and serve lists of 
witnesses which may include a short summary of the expected testimony of 
each and, in the case of an expert witness, his curriculum vitae, and 
may contain such other directions as may

[[Page 8]]

be appropriate to facilitate the proceedings.



Sec. 104.9  Admission of evidence.

    (a) Where the Presiding Officer has directed identification of 
witnesses and production of documentation evidence by a certain date, 
the Presiding Officer may exclude any such evidence, or refuse to allow 
any witness to testify, when the witness was not identified or the 
document was not served by the time set by the Presiding Officer. Any 
such direction with respect to a party's case in chief shall not 
preclude the use of such evidence or testimony on rebuttal or response, 
or upon a showing satisfactory to the Presiding Officer that good cause 
existed for failure to serve testimony or a document or identify a 
witness by the time required. The Presiding Officer may require direct 
testimony to be in writing under oath and served by a certain date, and 
may exclude testimony not so served.
    (b) At the first prehearing conference, or at another time before 
the beginning of the taking of oral testimony to be set by the Presiding 
Officer, the statement of basis and purpose, together with any 
publications or reference materials cited therein, except where excluded 
by stipulation, shall be received in evidence.
    (c) The Presiding Officer may exclude evidence which is immaterial, 
irrelevant, unduly repetitious or cumulative, or would involve undue 
delay, or which, if hearsay, is not of the sort upon which responsible 
persons are accustomed to rely.
    (d) If relevant and material evidence is contained in a report or 
document containing immaterial or irrelevant matter, such immaterial or 
irrelevant matter may be excluded.
    (e) Whenever written testimony or a document or object is excluded 
from evidence by the Presiding Officer, it shall at the request of the 
proponent be marked for identification. Where oral testimony is 
permitted by the Presiding Officer, but the Presiding Officer excludes 
particular oral testimony, the party offering such testimony may make a 
brief offer of proof.
    (f) Any relevant and material documentary evidence, including but 
not limited to affidavits, published articles, and official documents, 
regardless of the availability of the affiant or author for cross-
examination, may be admitted in evidence, subject to the provisions of 
paragraphs (a), (c), and (d) of this section. The availability or 
nonavailability of cross-examination shall be considered as affecting 
the weight to be accorded such evidence in any decision based upon the 
record.
    (g) Official notice may be taken by the Presiding Officer or the 
Administrator of any matter which could be judicially noticed in the 
United States District Courts, and of other facts within the specialized 
knowledge and experience of the Agency. Opposing parties shall be given 
adequate opportunity to show the contrary.



Sec. 104.10  Hearing procedures.

    (a) Following the admission in evidence of the materials described 
in Sec. 104.9(b), the Agency shall have the right at the commencement 
of the hearing to supplement that evidence or to introduce additional 
relevant evidence. Thereafter the evidence of each objector shall be 
presented in support of its objection and any proposed modification. The 
Agency staff shall then be given an opportunity to rebut or respond to 
the objectors' presentation, including at its option the introduction of 
evidence which tends to support a standard or standards other than as 
set forth in the Agency's own initially proposed standards. In the event 
that evidence which tends to support such other standard or standards is 
offered and received in evidence, then the objectors may thereafter 
rebut or respond to any such new evidence.
    (b) The burden of proof as to any modification of any standard 
proposed by the Agency shall be upon the party who advocates such 
modification to show that the proposed modification is justified based 
upon a preponderance of the evidence.
    (c) Where necessary in order to prevent undue prolongation of the 
hearing, or to comply with time limitations set forth in the Act, the 
Presiding Officer may limit the number of witnesses who may testify, and 
the scope and extent of cross-examination.

[[Page 9]]

    (d) A verbatim transcript of the hearing shall be maintained and 
shall constitute a part of the record.
    (e) If a party objects to the admission or rejection of any evidence 
or to any other ruling of the Presiding Officer during the hearing, he 
shall state briefly the grounds of such objection. With respect to any 
ruling on evidence, it shall not be necessary for any party to claim an 
exception in order to preserve any right of subsequent review.
    (f) Any party may at any time withdraw his objection to a proposed 
effluent standard.



Sec. 104.11  Briefs and findings of fact.

    At the conclusion of the hearing, the Presiding Officer shall set a 
schedule for the submission by the parties of briefs and proposed 
findings of fact and conclusions. In establishing the aforesaid time 
schedule, the Presiding Officer shall consider the time constraints 
placed upon the parties and the Administrator by the statutory 
deadlines.



Sec. 104.12  Certification of record.

    As soon as possible after the hearing, the Presiding Officer shall 
transmit to the hearing clerk the transcript of the testimony and 
exhibits introduced in the hearing. The Presiding Officer shall attach 
to the original transcript his certificate stating that, to the best of 
his knowledge and belief, the transcript is a true transcript of the 
testimony given at the hearing except in such particulars as he shall 
specify, and that the exhibits transmitted are all the exhibits as 
introduced at the hearing with such exceptions as he shall specify.



Sec. 104.13  Interlocutory and post-hearing review of rulings of the Presiding 

Officer; motions.

    (a) The Presiding Officer may certify a ruling for interlocutory 
review by the Administrator where a party so requests and the Presiding 
Officer concludes that (1) the ruling from which review is sought 
involves an important question as to which there is substantial ground 
for difference of opinion, and (2) either (i) a subsequent reversal of 
his ruling would be likely to result in substantial delay or expense if 
left to the conclusion of the proceedings, or (ii) a ruling on the 
question by the Administrator would be of material assistance in 
expediting the hearing. The certificate shall be in writing and shall 
specify the material relevant to the ruling certified. If the 
Administrator determines that interlocutory review is not warranted, he 
may decline to consider the ruling which has been certified.
    (b) Where the Presiding Officer declines to certify a ruling the 
party who had requested certification may apply to the Administrator for 
interlocutory review, or the Administrator may on his own motion direct 
that any matter be submitted to him for review, subject to the standards 
for review set forth in paragraph (a) of this section. An application 
for review shall be in writing and shall briefly state the grounds 
relied on. If the Administrator takes no action with respect to such 
application for interlocutory review within 15 days of its filing, such 
application shall be deemed to have been denied.
    (c) Unless otherwise ordered by the Presiding Officer or the 
Administrator, the hearing shall continue pending consideration by the 
Administrator of any ruling or request for interlocutory review.
    (d) Unless otherwise ordered by the Presiding Officer or the 
Administrator, briefs in response to any application for interlocutory 
review may be filed by any party within five days of the filing of the 
application for review.
    (e) Failure to request or obtain interlocutory review does not waive 
the rights of any party to complain of a ruling following completion of 
the hearing. Within five days following the close of a hearing under 
this part, any party may apply to the Administrator for post-hearing 
review of any procedural ruling, or any ruling made by the Presiding 
Officer concerning the admission or exclusion of evidence to which 
timely objection was made. Within seven days following the filing of any 
such application any other party may file a brief in response thereto.
    (f) If the Administrator on review under paragraph (e) of this 
section determines that evidence was improperly excluded, he may order 
its admission

[[Page 10]]

without remand for further proceedings, or may remand with such 
instructions as he deems appropriate concerning cross-examination, or 
opportunity for any party to submit further evidence, with respect to 
such evidence as he directs should be admitted. In making his 
determination whether to remand, the Administrator shall consider 
whether the statutory time restraints permit a remand, and whether it 
would be constructive to allow cross-examination or further evidence 
with respect to the newly admitted evidence. If evidence is admitted 
without cross-examination, the Administrator shall consider the lack of 
opportunity for cross-examination in determining the weight to be given 
such evidence.
    (g) Motions shall be brief, in writing, and may be filed at any time 
following the publication of the proposed effluent standards, unless 
otherwise ordered by the Presiding Officer or the Administrator. Unless 
otherwise ordered or provided in these rules, responses to motions may 
be filed within seven days of the actual filing of the motion with the 
hearing clerk.



Sec. 104.14  Tentative and final decision by the Administrator.

    (a) As soon as practicable following the certification of the record 
and the filing by the parties of briefs and proposed findings of fact 
and conclusions under Sec. 104.11, the Administrator, with such staff 
assistance as he deems necessary and appropriate, shall review the 
entire record and prepare and file a tentative decision based thereon. 
The tentative decision shall include findings of fact and conclusions, 
and shall be filed with the hearing clerk who shall at once transmit a 
copy thereof to each party who participated at the hearing, or his 
attorney or other representative.
    (b) Upon filing of the tentative decision, the Administrator may 
allow a reasonable time for the parties to file with him any exceptions 
to the tenative decision, a brief in support of such exceptions 
containing appropriate references to the record, and any proposed 
changes in the tentative decision. Such materials shall, upon 
submission, become part of the record. As soon as practicable after the 
filing thereof the Administrator shall prepare and file a final 
decision, copies of which shall be transmitted to the parties or their 
representatives in the manner prescribed in paragraph (a) of this 
section.
    (c) In the event that the Administrator determines that due and 
timely execution of his functions, including compliance with time 
limitations established by law, imperatively and unavoidably so 
requires, he may omit the preparation and filing of the tentative 
decision and related procedures set forth in paragraph (b) of this 
section, and shall instead prepare and file a final decision, copies of 
which shall be transmitted to the parties or their representatives in 
the manner prescribed in paragraph (a) of this section.
    (d) Any decision rendered by the Administrator pursuant to this 
section shall include a statement of his findings and conclusions, and 
the reasons and basis therefor, and shall indicate the toxic pollutant 
effluent standard or standards which the Administrator is promulgating 
or intends to promulgate based thereon.



Sec. 104.15  Promulgation of standards.

    Upon consideration of the record, at the time of his final decision 
the Administrator shall determine whether the proposed effluent standard 
or standards should be promulgated as proposed, or whether any 
modification thereof is justified based upon a proponderance of the 
evidence adduced at the hearing, regardless of whether or not such 
modification was actually proposed by any objecting party. If he 
determines that a modification is not justified, he shall promulgate the 
standard or standards as proposed. If he determines that a modification 
is justified, he shall promulgate a standard or standards as so 
modified.



Sec. 104.16  Filing and time.

    (a) All documents or papers required or authorized by the foregoing 
provisions of this part including, but not limited to, motions, 
applications for review, and briefs, shall be filed in duplicate with 
the hearing clerk, except as otherwise expressly provided in these 
rules. Any document or paper so required or authorized to be filed with

[[Page 11]]

the hearing clerk, if it is filed during the course of the hearing, 
shall be also filed with the Presiding Officer. A copy of each document 
or paper filed by any party with the Presiding Officer, with the hearing 
clerk, or with the Administrator shall be served upon all other parties, 
except to the extent that the list of parties to be so served may be 
modified by order of the Presiding Officer, and each such document or 
paper shall be accompanied by a certificate of such service.
    (b) A party may be represented in any proceeding under this part by 
an attorney or other authorized representative. When any document or 
paper is required under these rules to be served upon a party such 
service shall be made upon such attorney or other representative.
    (c) Except where these rules or an order of the Presiding Officer 
require receipt of a document by a certain date, any document or paper 
required or authorized to be filed by this part shall be deemed to be 
filed when postmarked, or in the case of papers delivered other than by 
mail, when received by the hearing clerk.
    (d) Sundays and legal holidays shall be included in computing the 
time allowed for the filing of any document or paper, provided, that 
when such time expires on a Sunday or legal holiday, such period shall 
be extended to include the next following business day.



PART 105_RECOGNITION AWARDS UNDER THE CLEAN WATER ACT--Table of Contents




Sec.

                                 General

105.1 Background.
105.2 Definitions.
105.3 Title.

                        Eligibility Requirements

105.4 What are the requirements for the Awards Program?
105.5 Who is eligible to win an award?
105.6 What are the Awards Program categories for which I may be 
          eligible?

                   Application and Nomination Process

105.7 How do I apply for an award?
105.8 When can I apply for an award?
105.9 How can I get nominated for an award?

                           Selection Criteria

105.10 What do I need to be considered for an award?
105.11 Who selects the award winners?
105.12 How is the awards review committee selected?
105.13 How are the awards winners selected?

                           Awards Recognition

105.14 How are award winners notified?
105.15 How are award winners recognized?
105.16 How are award winners publicized?

    Authority: Section 501(a) and (e) of the Clean Water Act (CWA), 33 
U.S.C. 1361(a) and (e).

    Source: 67 FR 6142, Feb. 8, 2002, unless otherwise noted.

                                 General



Sec. 105.1  Background.

    The Environmental Protection Agency's (EPA) Clean Water Act (CWA) 
Recognition Awards Program is authorized by CWA section 501(e). The 
Administrator may provide official recognition to industrial 
organizations and political subdivisions of States which during the 
preceding year demonstrated an outstanding technological achievement or 
an innovative process, method or device in their waste treatment and 
pollution abatement programs. The wastewater management programs can 
generally be characterized as waste treatment and/or pollution abatement 
programs. Individual EPA Regional Administrators (and Regional officials 
they may designate) also may conduct Regional CWA Recognition Awards 
Programs according to and consistent with the provisions of this part.



Sec. 105.2  Definitions.

    Applicant means the person authorized to complete the application on 
behalf of an industrial organization or political subdivision of States.
    Application means a completed questionnaire, nomination form, or 
other documentation submitted to or by the States, EPA Regions or 
headquarters for consideration of a national CWA Recognition Award.
    I means the applicant for an award.
    Industrial organization means any company, corporation, association, 
partnership, firm, university, not-for-profit organization, or 
wastewater

[[Page 12]]

treatment facility, as well as a Federal, State or Tribal government 
wastewater treatment facility, or U.S. military command to the extent 
such government and other organizations operate in an ``industrial'' 
capacity in the treatment of wastes or abatement of pollution.
    Nominee means a candidate recommended by the State or Tribe or EPA 
for consideration for a CWA Recognition Award.
    Political subdivision of State means a municipality, city, town, 
borough, county, parish, district, association, or other public body 
(including an intermunicipal agency of two or more of the foregoing 
entities) created by or pursuant to State law.
    State means any of the 50 States, the District of Columbia, the 
Commonwealth of Puerto Rico, the U.S. Virgin Islands, Guam, American 
Samoa, and the Commonwealth of Northern Mariana Islands.
    State water pollution control agency means the State agency 
designated by the Governing Authority having responsibility for 
enforcing State laws relating to the abatement of water pollution.
    You means the applicant for an award.



Sec. 105.3  Title.

    The awards are known as the National Clean Water Act Recognition 
Awards (hereinafter, the Awards Program).

                        Eligibility Requirements



Sec. 105.4  What are the requirements for the Awards Program?

    (a) EPA will administer the Awards Program, and should establish 
annual guidance as necessary to administer the Awards Program. EPA will 
request from the various offices, and States and Tribes as appropriate, 
nominations for the Awards Program.
    (b) Nominees must be in total compliance with all applicable water 
quality requirements under the CWA in order to be eligible for an award, 
and otherwise have a satisfactory record with respect to environmental 
quality.
    (c) Nominees must provide written documentation as evidence to 
support their outstanding technological achievement or innovative 
process, method or device in their waste treatment and/or pollution 
abatement programs.
    (d) EPA may issue annual guidance memoranda to administer each 
year's awards programs. For information on the availability of 
additional guidance, contact the U.S. Environmental Protection Agency, 
Municipal Assistance Branch, 1200 Pennsylvania Avenue, NW., Mail Code 
4204-M, Washington, DC 20460. You may also visit EPA's Web site at 
www.epa.gov/owm.



Sec. 105.5  Who is eligible to win an award?

    A municipality, city, town, borough, county, parish, district, 
association, government agency, or other public body, (including an 
intermunicipal agency of two or more of the foregoing entities) created 
by or pursuant to State law; a company, corporation, association, 
partnership, firm, university, not-for-profit organization, or 
wastewater treatment facility, as well as a Federal, State or Tribal 
government wastewater treatment facility, or U.S. military command to 
the extent such government and other organizations operate in an 
industrial capacity in the treatment of wastes or abatement of pollution 
may be considered for a recognition award.



Sec. 105.6  What are the Awards Program categories for which I may be 

eligible?

    EPA will publish from time to time, a notice in the Federal Register 
announcing the current Awards Program categories. EPA also may 
subsequently discontinue, combine, or rename categories by notice 
published in the Federal Register.

                   Application and Nomination Process



Sec. 105.7  How do I apply for an award?

    You may contact your local EPA Regional office for information on 
the Awards Program guidance each year, or check the Web site at http://
www.epa.gov/owm/intnet.htm. EPA may use an application or nomination 
process, as appropriate for the program or Region.

[[Page 13]]



Sec. 105.8  When can I apply for an award?

    You can contact your local EPA Regional office for award submission 
deadline information which may vary for the award categories, or check 
the Web site at http://www.epa.gov/owm/intnet.htm.



Sec. 105.9  How can I get nominated for an award?

    You may apply to, or ask your State, Tribe or EPA Region to nominate 
you for an award. Only applications or nominations recommended by EPA 
Regions are considered for the national award. EPA personnel conduct 
compliance evaluations prior to presenting a national award.

                           Selection Criteria



Sec. 105.10  What do I need to be considered for an award?

    Your facility or pollution abatement program must be in total 
compliance with all applicable water quality requirements, and otherwise 
have a satisfactory record with respect to environmental quality. 
Additionally, your facility or pollution abatement program must provide 
written documentation as evidence of an outstanding technological 
achievement or an innovative process, method or device demonstrated in 
the preceding year, which resulted in environmental benefits, cost 
savings and/or public acceptance.



Sec. 105.11  Who selects the award winners?

    After EPA receives the completed application, the application is 
evaluated by a review committee. After the review committee completes 
its evaluation of the programs that have been nominated, they make 
recommendations for the national awards. EPA then analyzes the results 
and selects the award winners.



Sec. 105.12  How is the awards review committee selected?

    EPA review committee members are selected by the EPA and in some 
cases, State or Tribal water pollution control agencies. The number of 
participants in a nominations review process is based on staff 
availability, and may be one person.



Sec. 105.13  How are the award winners selected?

    Nominees and applications are recommended by EPA regions. EPA 
personnel conduct compliance evaluations prior to presenting a national 
award. EPA selects national award winners based on demonstrated evidence 
of outstanding and/or innovative wastewater treatment and pollution 
abatement programs or projects which result in environmental benefits, 
cost savings and/or public acceptance. Based upon results of review 
committee evaluations, the Agency selects first place winners for a 
national award in the appropriate awards categories. A second place 
winner may or may not be selected. EPA may or may not select an award 
winner for every awards program category. Award decisions are not 
subject to administrative review.

                           Awards Recognition



Sec. 105.14  How are award winners notified?

    EPA notifies national award winners by letter.



Sec. 105.15  How are award winners recognized?

    EPA presents national award winners with a certificate or plaque at 
an awards presentation ceremony as recognition for an outstanding 
technological achievement or an innovative process, method or device in 
wastewater treatment and/or pollution abatement programs. The President 
of the United States, the Governor of the State, or Tribal leader of the 
jurisdiction reservation in which the awardee is situated, the Speaker 
of the House of Representatives and the President pro tempore of the 
Senate are notified by the Administrator.



Sec. 105.16  How are award winners publicized?

    EPA announces the annual national recognition award winners through 
notice published in the Federal Register.

[[Page 14]]



PART 108_EMPLOYEE PROTECTION HEARINGS--Table of Contents




Sec.
108.1 Applicability.
108.2 Definitions.
108.3 Request for investigation.
108.4 Investigation by Regional Administrator.
108.5 Procedure.
108.6 Recommendations.
108.7 Hearing before Administrator.

    Authority: Sec. 507(e), Pub. L. 92-500, 86 Stat. 816 (33 U.S.C. 1251 
et seq.).

    Source: 39 FR 15398, May 3, 1974, unless otherwise noted.



Sec. 108.1  Applicability.

    This part shall be applicable to investigations and hearings 
required by section 507(e) of the Federal Water Pollution Control Act, 
as amended, 33 U.S.C. 1251 et seq. (Pub. L. 92-500).



Sec. 108.2  Definitions.

    As used in this part, the term:
    (a) Act means the Federal Water Pollution Control Act, as amended;
    (b) Effluent limitation means any effluent limitation which is 
established as a condition of a permit issued or proposed to be issued 
by a State or by the Environmental Protection Agency pursuant to section 
402 of the Act; any toxic or pretreatment effluent standard established 
under section 307 of the Act; any standard of performance established 
under section 306 of the Act; and any effluent limitation established 
under section 302, section 316, or section 318 of the Act.
    (c) Order means any order issued by the Administrator under section 
309 of the Act; any order issued by a State to secure compliance with a 
permit, or condition thereof, issued under a program approved pursuant 
to section 402 of the Act; or any order issued by a court in an action 
brought pursuant to section 309 or section 505 of the Act.
    (d) Party means an employee filing a request under Sec. 108.3, any 
employee similarly situated, the employer of any such employee, and the 
Regional Administrator or his designee.
    (e) Administrator or Regional Administrator means the Administrator 
or a Regional Administrator of the Environmental Protection Agency.



Sec. 108.3  Request for investigation.

    Any employee who is discharged or laid-off, threatened with 
discharge or lay-off, or otherwise discriminated against by any person 
because of the alleged results of any effluent limitation or order 
issued under the Act, or any representative of such employee, may submit 
a request for an investigation under this part to the Regional 
Administrator of the region in which such discrimination is alleged to 
have occurred.



Sec. 108.4  Investigation by Regional Administrator.

    Upon receipt of any request meeting the requirements of Sec. 108.3, 
the Regional Administrator shall conduct a full investigation of the 
matter, in order to determine whether the request may be related to an 
effluent limitation or order under the Act. Following the investigation, 
the Regional Administrator shall notify the employee requesting the 
investigation (or the employee's representative) and the employer of 
such employee, in writing, of his preliminary findings and conclusions. 
The employee, the representative of such employee, or the employer may 
within fifteen days following receipt of the preliminary findings and 
conclusions of the Regional Administrator request a hearing under this 
part. Upon receipt of such a request, the Regional Administrator, with 
the concurrence of the Chief Administrative Law Judge, shall publish 
notice of a hearing to be held not less than 30 days following the date 
of such publication where he determines that there are factual issues 
concerning the existence of the alleged discrimination or its 
relationship to an effluent limitation or order under the Act. The 
notice shall specify a date before which any party (or representative of 
such party) may submit a request to appear.



Sec. 108.5  Procedure.

    Any hearing held pursuant to this part shall be of record and shall 
be conducted according to the requirements of 5 U.S.C. 554. The 
Administrative Law Judge shall conduct the hearing in an orderly and 
expeditious manner. By agreement of the parties, he may dismiss the 
hearing. The Administrative

[[Page 15]]

Law Judge, on his own motion, or at the request of any party, shall have 
the power to hold prehearing conferences, to issue subpoenas for the 
attendance and testimony of witnesses and the production of relevant 
papers, books, and documents, and he may administer oaths. The Regional 
Administrator, and any party submitting a request pursuant to Sec. 
108.3 or Sec. 108.4, or counsel or other representative of such party 
or the Regional Administrator, may appear and offer evidence at the 
hearing.



Sec. 108.6  Recommendations.

    At the conclusion of any hearing under this part, the Administrative 
Law Judge shall, based on the record, issue tentative findings of fact 
and recommendations concerning the alleged discrimination, and shall 
submit such tentative findings and recommendations to the Administrator. 
The Administrator shall adopt or modify the findings and recommendations 
of the Administrative Law Judge, and shall make copies of such findings 
and recommendations available to the complaining employee, the employer, 
and the public.



Sec. 108.7  Hearing before Administrator.

    At his option, the Administrator may exercise any powers of an 
Administrative Law Judge with respect to hearings under this part.



PART 109_CRITERIA FOR STATE, LOCAL AND REGIONAL OIL REMOVAL CONTINGENCY 

PLANS--Table of Contents




Sec.
109.1 Applicability.
109.2 Definitions.
109.3 Purpose and scope.
109.4 Relationship to Federal response actions.
109.5 Development and implementation criteria for State, local and 
          regional oil removal contingency plans.
109.6 Coordination.

    Authority: Sec. 11(j)(1)(B), 84 Stat. 96, 33 U.S.C. 1161(j)(1)(B).

    Source: 36 FR 22485, Nov. 25, 1971, unless otherwise noted.



Sec. 109.1  Applicability.

    The criteria in this part are provided to assist State, local and 
regional agencies in the development of oil removal contingency plans 
for the inland navigable waters of the United States and all areas other 
than the high seas, coastal and contiguous zone waters, coastal and 
Great Lakes ports and harbors and such other areas as may be agreed upon 
between the Environmental Protection Agency and the Department of 
Transportation in accordance with section 11(j)(1)(B) of the Federal 
Act, Executive Order No. 11548 dated July 20, 1970 (35 FR 11677) and 
Sec. 306.2 of the National Oil and Hazardous Materials Pollution 
Contingency Plan (35 FR 8511).



Sec. 109.2  Definitions.

    As used in these guidelines, the following terms shall have the 
meaning indicated below:
    (a) Oil means oil of any kind or in any form, including, but not 
limited to, petroleum, fuel oil, sludge, oil refuse, and oil mixed with 
wastes other than dredged spoil.
    (b) Discharge includes, but is not limited to, any spilling, 
leaking, pumping, pouring, emitting, emptying, or dumping.
    (c) Remove or removal refers to the removal of the oil from the 
water and shorelines or the taking of such other actions as may be 
necessary to minimize or mitigate damage to the public health or 
welfare, including, but not limited to, fish, shellfish, wildlife, and 
public and private property, shorelines, and beaches.
    (d) Major disaster means any hurricane, tornado, storm, flood, high 
water, wind-driven water, tidal wave, earthquake, drought, fire, or 
other catastrophe in any part of the United States which, in the 
determination of the President, is or threatens to become of sufficient 
severity and magnitude to warrant disaster assistance by the Federal 
Government to supplement the efforts and available resources of States 
and local governments and relief organizations in alleviating the 
damage, loss, hardship, or suffering caused thereby.

[[Page 16]]

    (e) United States means the States, the District of Columbia, the 
Commonwealth of Puerto Rico, the Canal Zone, Guam, American Samoa, the 
Virgin Islands, and the Trust Territory of the Pacific Islands.
    (f) Federal Act means the Federal Water Pollution Control Act, as 
amended, 33 U.S.C. 1151 et seq.



Sec. 109.3  Purpose and scope.

    The guidelines in this part establish minimum criteria for the 
development and implementation of State, local, and regional contingency 
plans by State and local governments in consultation with private 
interests to insure timely, efficient, coordinated and effective action 
to minimize damage resulting from oil discharges. Such plans will be 
directed toward the protection of the public health or welfare of the 
United States, including, but not limited to, fish, shellfish, wildlife, 
and public and private property, shorelines, and beaches. The 
development and implementation of such plans shall be consistent with 
the National Oil and Hazardous Materials Pollution Contingency Plan. 
State, local and regional oil removal contingency plans shall provide 
for the coordination of the total response to an oil discharge so that 
contingency organizations established thereunder can function 
independently, in conjunction with each other, or in conjunction with 
the National and Regional Response Teams established by the National Oil 
and Hazardous Materials Pollution Contingency Plan.



Sec. 109.4  Relationship to Federal response actions.

    The National Oil and Hazardous Materials Pollution Contingency Plan 
provides that the Federal on-scene commander shall investigate all 
reported spills. If such investigation shows that appropriate action is 
being taken by either the discharger or non-Federal entities, the 
Federal on-scene commander shall monitor and provide advice or 
assistance, as required. If appropriate containment or cleanup action is 
not being taken by the discharger or non-Federal entities, the Federal 
on-scene commander will take control of the response activity in 
accordance with section 11(c)(1) of the Federal Act.



Sec. 109.5  Development and implementation criteria for State, local and 

regional oil removal contingency plans.

    Criteria for the development and implementation of State, local and 
regional oil removal contingency plans are:
    (a) Definition of the authorities, responsibilities and duties of 
all persons, organizations or agencies which are to be involved or could 
be involved in planning or directing oil removal operations, with 
particular care to clearly define the authorities, responsibilities and 
duties of State and local governmental agencies to avoid unnecessary 
duplication of contingency planning activities and to minimize the 
potential for conflict and confusion that could be generated in an 
emergency situation as a result of such duplications.
    (b) Establishment of notification procedures for the purpose of 
early detection and timely notification of an oil discharge including:
    (1) The identification of critical water use areas to facilitate the 
reporting of and response to oil discharges.
    (2) A current list of names, telephone numbers and addresses of the 
responsible persons and alternates on call to receive notification of an 
oil discharge as well as the names, telephone numbers and addresses of 
the organizations and agencies to be notified when an oil discharge is 
discovered.
    (3) Provisions for access to a reliable communications system for 
timely notification of an oil discharge and incorporation in the 
communications system of the capability for interconnection with the 
communications systems established under related oil removal contingency 
plans, particularly State and National plans.
    (4) An established, prearranged procedure for requesting assistance 
during a major disaster or when the situation exceeds the response 
capability of the State, local or regional authority.
    (c) Provisions to assure that full resource capability is known and 
can be committed during an oil discharge situation including:

[[Page 17]]

    (1) The identification and inventory of applicable equipment, 
materials and supplies which are available locally and regionally.
    (2) An estimate of the equipment, materials and supplies which would 
be required to remove the maximum oil discharge to be anticipated.
    (3) Development of agreements and arrangements in advance of an oil 
discharge for the acquisition of equipment, materials and supplies to be 
used in responding to such a discharge.
    (d) Provisions for well defined and specific actions to be taken 
after discovery and notification of an oil discharge including:
    (1) Specification of an oil discharge response operating team 
consisting of trained, prepared and available operating personnel.
    (2) Predesignation of a properly qualified oil discharge response 
coordinator who is charged with the responsibility and delegated 
commensurate authority for directing and coordinating response 
operations and who knows how to request assistance from Federal 
authorities operating under existing national and regional contingency 
plans.
    (3) A preplanned location for an oil discharge response operations 
center and a reliable communications system for directing the 
coordinated overall response operations.
    (4) Provisions for varying degrees of response effort depending on 
the severity of the oil discharge.
    (5) Specification of the order of priority in which the various 
water uses are to be protected where more than one water use may be 
adversely affected as a result of an oil discharge and where response 
operations may not be adequate to protect all uses.
    (e) Specific and well defined procedures to facilitate recovery of 
damages and enforcement measures as provided for by State and local 
statutes and ordinances.



Sec. 109.6  Coordination.

    For the purposes of coordination, the contingency plans of State and 
local governments should be developed and implemented in consultation 
with private interests. A copy of any oil removal contingency plan 
developed by State and local governments should be forwarded to the 
Council on Environmental Quality upon request to facilitate the 
coordination of these contingency plans with the National Oil and 
Hazardous Materials Pollution Contingency Plan.



PART 110_DISCHARGE OF OIL--Table of Contents




Sec.
110.1 Definitions.
110.2 Applicability.
110.3 Discharge of oil in such quantities as ``may be harmful'' pursuant 
          to section 311(b)(4) of the Act.
110.4 Dispersants.
110.5 Discharges of oil not determined ``as may be harmful'' pursuant to 
          section 311(b)(3) of the Act.
110.6 Notice.

    Authority: 33 U.S.C. 1321(b)(3) and (b)(4) and 1361(a); E.O. 11735, 
38 FR 21243, 3 CFR Parts 1971-1975 Comp., p. 793.

    Source: 52 FR 10719, Apr. 2, 1987, unless otherwise noted.



Sec. 110.1  Definitions.

    Terms not defined in this section have the same meaning given by the 
Section 311 of the Act. As used in this part, the following terms shall 
have the meaning indicated below:
    Act means the Federal Water Pollution Control Act, as amended, 33 
U.S.C. 1251 et seq., also known as the Clean Water Act;
    Administrator means the Administrator of the Environmental 
Protection Agency (EPA);
    Applicable water quality standards means State water quality 
standards adopted by the State pursuant to section 303 of the Act or 
promulgated by EPA pursuant to that section;
    MARPOL 73/78 means the International Convention for the Prevention 
of Pollution from Ships, 1973, as modified by the Protocol of 1978 
relating thereto, Annex I, which regulates pollution from oil and which 
entered into force on October 2, 1983;
    Navigable waters means the waters of the United States, including 
the territorial seas. The term includes:
    (a) All waters that are currently used, were used in the past, or 
may be susceptible to use in interstate or foreign commerce, including 
all waters

[[Page 18]]

that are subject to the ebb and flow of the tide;
    (b) Interstate waters, including interstate wetlands;
    (c) All other waters such as intrastate lakes, rivers, streams 
(including intermittent streams), mudflats, sandflats, and wetlands, the 
use, degradation, or destruction of which would affect or could affect 
interstate or foreign commerce including any such waters:
    (1) That are or could be used by interstate or foreign travelers for 
recreational or other purposes;
    (2) From which fish or shellfish are or could be taken and sold in 
interstate or foreign commerce;
    (3) That are used or could be used for industrial purposes by 
industries in interstate commerce;
    (d) All impoundments of waters otherwise defined as navigable waters 
under this section;
    (e) Tributaries of waters identified in paragraphs (a) through (d) 
of this section, including adjacent wetlands; and
    (f) Wetlands adjacent to waters identified in paragraphs (a) through 
(e) of this section: Provided, That waste treatment systems (other than 
cooling ponds meeting the criteria of this paragraph) are not waters of 
the United States;


Navigable waters do not include prior converted cropland. 
Notwithstanding the determination of an area's status as prior converted 
cropland by any other federal agency, for the purposes of the Clean 
Water Act, the final authority regarding Clean Water Act jurisdiction 
remains with EPA.
    NPDES means National Pollutant Discharge Elimination System;
    Sheen means an iridescent appearance on the surface of water;
    Sludge means an aggregate of oil or oil and other matter of any kind 
in any form other than dredged spoil having a combined specific gravity 
equivalent to or greater than water;
    United States means the States, the District of Columbia, the 
Commonwealth of Puerto Rico, Guam, American Samoa, the Virgin Islands, 
and the Trust Territory of the Pacific Islands;
    Wetlands means those areas that are inundated or saturated by 
surface or ground water at a frequency or duration sufficient to 
support, and that under normal circumstances do support, a prevalence of 
vegetation typically adapted for life in saturated soil conditions. 
Wetlands generally include playa lakes, swamps, marshes, bogs and 
similar areas such as sloughs, prairie potholes, wet meadows, prairie 
river overflows, mudflats, and natural ponds.

[52 FR 10719, Apr. 2, 1987, as amended at 58 FR 45039, Aug. 25, 1993; 61 
FR 7421, Feb. 28, 1996]



Sec. 110.2  Applicability.

    The regulations of this part apply to the discharge of oil 
prohibited by section 311(b)(3) of the Act.

[61 FR 7421, Feb. 28, 1996]



Sec. 110.3  Discharge of oil in such quantities as ``may be harmful'' pursuant 

to section 311(b)(4) of the Act.

    For purposes of section 311(b)(4) of the Act, discharges of oil in 
such quantities that the Administrator has determined may be harmful to 
the public health or welfare or the environment of the United States 
include discharges of oil that:
    (a) Violate applicable water quality standards; or
    (b) Cause a film or sheen upon or discoloration of the surface of 
the water or adjoining shorelines or cause a sludge or emulsion to be 
deposited beneath the surface of the water or upon adjoining shorelines.

[61 FR 7421, Feb. 28, 1996]



Sec. 110.4  Dispersants.

    Addition of dispersants or emulsifiers to oil to be discharged that 
would circumvent the provisions of this part is prohibited.

[52 FR 10719, Apr. 2, 1987. Redesignated at 61 FR 7421, Feb. 28, 1996]



Sec. 110.5  Discharges of oil not determined ``as may be harmful'' pursuant to 

Section 311(b)(3) of the Act.

    Notwithstanding any other provisions of this part, the Administrator 
has not determined the following discharges of oil ``as may be harmful'' 
for purposes of section 311(b) of the Act:
    (a) Discharges of oil from a properly functioning vessel engine 
(including an

[[Page 19]]

engine on a public vessel) and any discharges of such oil accumulated in 
the bilges of a vessel discharged in compliance with MARPOL 73/78, Annex 
I, as provided in 33 CFR part 151, subpart A;
    (b) Other discharges of oil permitted under MARPOL 73/78, Annex I, 
as provided in 33 CFR part 151, subpart A; and
    (c) Any discharge of oil explicitly permitted by the Administrator 
in connection with research, demonstration projects, or studies relating 
to the prevention, control, or abatement of oil pollution.

[61 FR 7421, Feb. 28, 1996]



Sec. 110.6  Notice.

    Any person in charge of a vessel or of an onshore or offshore 
facility shall, as soon as he or she has knowledge of any discharge of 
oil from such vessel or facility in violation of section 311(b)(3) of 
the Act, immediately notify the National Response Center (NRC) (800-424-
8802; in the Washington, DC metropolitan area, 202-426-2675). If direct 
reporting to the NRC is not practicable, reports may be made to the 
Coast Guard or EPA predesignated On-Scene Coordinator (OSC) for the 
geographic area where the discharge occurs. All such reports shall be 
promptly relayed to the NRC. If it is not possible to notify the NRC or 
the predesignated OCS immediately, reports may be made immediately to 
the nearest Coast Guard unit, provided that the person in charge of the 
vessel or onshore or offshore facility notifies the NRC as soon as 
possible. The reports shall be made in accordance with such procedures 
as the Secretary of Transportation may prescribe. The procedures for 
such notice are set forth in U.S. Coast Guard regulations, 33 CFR part 
153, subpart B and in the National Oil and Hazardous Substances 
Pollution Contingency Plan, 40 CFR part 300, subpart E.

(Approved by the Office of Management and Budget under control number 
2050-0046)

[52 FR 10719, Apr. 2, 1987. Redesignated and amended at 61 FR 7421, Feb. 
28, 1996; 61 FR 14032, Mar. 29, 1996]



PART 112_OIL POLLUTION PREVENTION--Table of Contents




Sec.

 Subpart A_Applicability, Definitions, and General Requirements For All 
                    Facilities and All Types of Oils

112.1 General applicability.
112.2 Definitions.
112.3 Requirement to prepare and implement a Spill Prevention, Control, 
          and Countermeasure Plan.
112.4 Amendment of Spill Prevention, Control, and Countermeasure Plan by 
          Regional Administrator.
112.5 Amendment of Spill Prevention, Control, and Countermeasure Plan by 
          owners or operators.
112.6 Qualified Facility Plan Requirements.
112.7 General requirements for Spill Prevention, Control, and 
          Countermeasure Plans.

Subpart B_Requirements for Petroleum Oils and Non-Petroleum Oils, Except 
 Animal Fats and Oils and Greases, and Fish and Marine Mammal Oils; and 
  Vegetable Oils (Including Oils from Seeds, Nuts, Fruits, and Kernels)

112.8 Spill Prevention, Control, and Countermeasure Plan requirements 
          for onshore facilities (excluding production facilities).
112.9 Spill Prevention, Control, and Countermeasure Plan requirements 
          for onshore oil production facilities.
112.10 Spill Prevention, Control, and Countermeasure Plan requirements 
          for onshore oil drilling and workover facilities.
112.11 Spill Prevention, Control, and Countermeasure Plan requirements 
          for offshore oil drilling, production, or workover facilities.

 Subpart C_Requirements for Animal Fats and Oils and Greases, and Fish 
  and Marine Mammal Oils; and for Vegetable Oils, Including Oils from 
                     Seeds, Nuts, Fruits and Kernels

112.12 Spill Prevention, Control, and Countermeasure Plan requirements.
112.13-112.15 [Reserved]

                     Subpart D_Response Requirements

112.20 Facility response plans.
112.21 Facility response training and drills/exercises.

Appendix A to Part 112--Memorandum of Understanding Between the 
          Secretary

[[Page 20]]

          of Transportation and the Administrator of the Environmental 
          Protection Agency
Appendix B to Part 112--Memorandum of Understanding Among the Secretary 
          of the Interior, Secretary of Transportation, and 
          Administrator of the Environmental Protection Agency
Appendix C to Part 112--Substantial Harm Criteria
Appendix D to Part 112--Determination of a Worst Case Discharge Planning 
          Volume
Appendix E to Part 112--Determination and Evaluation of Required 
          Response Resources for Facility Response Plans
Appendix F to Part 112--Facility-Specific Response Plan
Appendix G to Part 112--Tier I Qualified Facility SPCC Plan

    Authority: 33 U.S.C. 1251 et seq.; 33 U.S.C. 2720; E.O. 12777 
(October 18, 1991), 3 CFR, 1991 Comp., p. 351.

    Source: 38 FR 34165, Dec. 11, 1973, unless otherwise noted.

    Editorial Note: Nomenclature changes to part 112 appear at 65 FR 
40798, June 30, 2000.



 Subpart A_Applicability, Definitions, and General Requirements for All 
                    Facilities and All Types of Oils

    Source: 67 FR 47140, July 17, 2002, unless otherwise noted.



Sec. 112.1  General applicability.

    (a)(1) This part establishes procedures, methods, equipment, and 
other requirements to prevent the discharge of oil from non-
transportation-related onshore and offshore facilities into or upon the 
navigable waters of the United States or adjoining shorelines, or into 
or upon the waters of the contiguous zone, or in connection with 
activities under the Outer Continental Shelf Lands Act or the Deepwater 
Port Act of 1974, or that may affect natural resources belonging to, 
appertaining to, or under the exclusive management authority of the 
United States (including resources under the Magnuson Fishery 
Conservation and Management Act).
    (2) As used in this part, words in the singular also include the 
plural and words in the masculine gender also include the feminine and 
vice versa, as the case may require.
    (b) Except as provided in paragraph (d) of this section, this part 
applies to any owner or operator of a non-transportation-related onshore 
or offshore facility engaged in drilling, producing, gathering, storing, 
processing, refining, transferring, distributing, using, or consuming 
oil and oil products, which due to its location, could reasonably be 
expected to discharge oil in quantities that may be harmful, as 
described in part 110 of this chapter, into or upon the navigable waters 
of the United States or adjoining shorelines, or into or upon the waters 
of the contiguous zone, or in connection with activities under the Outer 
Continental Shelf Lands Act or the Deepwater Port Act of 1974, or that 
may affect natural resources belonging to, appertaining to, or under the 
exclusive management authority of the United States (including resources 
under the Magnuson Fishery Conservation and Management Act) that has oil 
in:
    (1) Any aboveground container;
    (2) Any completely buried tank as defined in Sec. 112.2;
    (3) Any container that is used for standby storage, for seasonal 
storage, or for temporary storage, or not otherwise ``permanently 
closed'' as defined in Sec. 112.2;
    (4) Any ``bunkered tank'' or ``partially buried tank'' as defined in 
Sec. 112.2, or any container in a vault, each of which is considered an 
aboveground storage container for purposes of this part.
    (c) As provided in section 313 of the Clean Water Act (CWA), 
departments, agencies, and instrumentalities of the Federal government 
are subject to this part to the same extent as any person.
    (d) Except as provided in paragraph (f) of this section, this part 
does not apply to:
    (1) The owner or operator of any facility, equipment, or operation 
that is not subject to the jurisdiction of the Environmental Protection 
Agency (EPA) under section 311(j)(1)(C) of the CWA, as follows:
    (i) Any onshore or offshore facility, that due to its location, 
could not reasonably be expected to have a discharge as described in 
paragraph (b) of

[[Page 21]]

this section. This determination must be based solely upon consideration 
of the geographical and location aspects of the facility (such as 
proximity to navigable waters or adjoining shorelines, land contour, 
drainage, etc.) and must exclude consideration of manmade features such 
as dikes, equipment or other structures, which may serve to restrain, 
hinder, contain, or otherwise prevent a discharge as described in 
paragraph (b) of this section.
    (ii) Any equipment, or operation of a vessel or transportation-
related onshore or offshore facility which is subject to the authority 
and control of the U.S. Department of Transportation, as defined in the 
Memorandum of Understanding between the Secretary of Transportation and 
the Administrator of EPA, dated November 24, 1971 (Appendix A of this 
part).
    (iii) Any equipment, or operation of a vessel or onshore or offshore 
facility which is subject to the authority and control of the U.S. 
Department of Transportation or the U.S. Department of the Interior, as 
defined in the Memorandum of Understanding between the Secretary of 
Transportation, the Secretary of the Interior, and the Administrator of 
EPA, dated November 8, 1993 (Appendix B of this part).
    (2) Any facility which, although otherwise subject to the 
jurisdiction of EPA, meets both of the following requirements:
    (i) The completely buried storage capacity of the facility is 42,000 
gallons or less of oil. For purposes of this exemption, the completely 
buried storage capacity of a facility excludes the capacity of a 
completely buried tank, as defined in Sec. 112.2, and connected 
underground piping, underground ancillary equipment, and containment 
systems, that is currently subject to all of the technical requirements 
of part 280 of this chapter or all of the technical requirements of a 
State program approved under part 281 of this chapter. The completely 
buried storage capacity of a facility also excludes the capacity of a 
container that is ``permanently closed,'' as defined in Sec. 112.2.
    (ii) The aggregate aboveground storage capacity of the facility is 
1,320 gallons or less of oil. For the purposes of this exemption, only 
containers with a capacity of 55 gallons or greater are counted. The 
aggregate aboveground storage capacity of a facility excludes the 
capacity of a container that is ``permanently closed,'' and the capacity 
of a ``motive power container'' as defined in Sec. 112.2.
    (3) Any offshore oil drilling, production, or workover facility that 
is subject to the notices and regulations of the Minerals Management 
Service, as specified in the Memorandum of Understanding between the 
Secretary of Transportation, the Secretary of the Interior, and the 
Administrator of EPA, dated November 8, 1993 (Appendix B of this part).
    (4) Any completely buried storage tank, as defined in Sec. 112.2, 
and connected underground piping, underground ancillary equipment, and 
containment systems, at any facility, that is subject to all of the 
technical requirements of part 280 of this chapter or a State program 
approved under part 281 of this chapter, except that such a tank must be 
marked on the facility diagram as provided in Sec. 112.7(a)(3), if the 
facility is otherwise subject to this part.
    (5) Any container with a storage capacity of less than 55 gallons of 
oil.
    (6) Any facility or part thereof used exclusively for wastewater 
treatment and not used to satisfy any requirement of this part. The 
production, recovery, or recycling of oil is not wastewater treatment 
for purposes of this paragraph.
    (7) Any ``motive power container,'' as defined in Sec. 112.2. The 
transfer of fuel or other oil into a motive power container at an 
otherwise regulated facility is not eligible for this exemption.
    (e) This part establishes requirements for the preparation and 
implementation of Spill Prevention, Control, and Countermeasure (SPCC) 
Plans. SPCC Plans are designed to complement existing laws, regulations, 
rules, standards, policies, and procedures pertaining to safety 
standards, fire prevention, and pollution prevention rules. The purpose 
of an SPCC Plan is to form a comprehensive Federal/State spill 
prevention program that minimizes the potential for discharges. The SPCC 
Plan must address all relevant spill prevention, control,

[[Page 22]]

and countermeasures necessary at the specific facility. Compliance with 
this part does not in any way relieve the owner or operator of an 
onshore or an offshore facility from compliance with other Federal, 
State, or local laws.
    (f) Notwithstanding paragraph (d) of this section, the Regional 
Administrator may require that the owner or operator of any facility 
subject to the jurisdiction of EPA under section 311(j) of the CWA 
prepare and implement an SPCC Plan, or any applicable part, to carry out 
the purposes of the CWA.
    (1) Following a preliminary determination, the Regional 
Administrator must provide a written notice to the owner or operator 
stating the reasons why he must prepare an SPCC Plan, or applicable 
part. The Regional Administrator must send such notice to the owner or 
operator by certified mail or by personal delivery. If the owner or 
operator is a corporation, the Regional Administrator must also mail a 
copy of such notice to the registered agent, if any and if known, of the 
corporation in the State where the facility is located.
    (2) Within 30 days of receipt of such written notice, the owner or 
operator may provide information and data and may consult with the 
Agency about the need to prepare an SPCC Plan, or applicable part.
    (3) Within 30 days following the time under paragraph (b)(2) of this 
section within which the owner or operator may provide information and 
data and consult with the Agency about the need to prepare an SPCC Plan, 
or applicable part, the Regional Administrator must make a final 
determination regarding whether the owner or operator is required to 
prepare and implement an SPCC Plan, or applicable part. The Regional 
Administrator must send the final determination to the owner or operator 
by certified mail or by personal delivery. If the owner or operator is a 
corporation, the Regional Administrator must also mail a copy of the 
final determination to the registered agent, if any and if known, of the 
corporation in the State where the facility is located.
    (4) If the Regional Administrator makes a final determination that 
an SPCC Plan, or applicable part, is necessary, the owner or operator 
must prepare the Plan, or applicable part, within six months of that 
final determination and implement the Plan, or applicable part, as soon 
as possible, but not later than one year after the Regional 
Administrator has made a final determination.
    (5) The owner or operator may appeal a final determination made by 
the Regional Administrator requiring preparation and implementation of 
an SPCC Plan, or applicable part, under this paragraph. The owner or 
operator must make the appeal to the Administrator of EPA within 30 days 
of receipt of the final determination under paragraph (b)(3) of this 
section from the Regional Administrator requiring preparation and/or 
implementation of an SPCC Plan, or applicable part. The owner or 
operator must send a complete copy of the appeal to the Regional 
Administrator at the time he makes the appeal to the Administrator. The 
appeal must contain a clear and concise statement of the issues and 
points of fact in the case. In the appeal, the owner or operator may 
also provide additional information. The additional information may be 
from any person. The Administrator may request additional information 
from the owner or operator. The Administrator must render a decision 
within 60 days of receiving the appeal or additional information 
submitted by the owner or operator and must serve the owner or operator 
with the decision made in the appeal in the manner described in 
paragraph (f)(1) of this section.

[67 FR 47140, July 17, 2002, as amended at 71 FR 77290, Dec. 26, 2006]

    Effective Date Note: At 74 FR 74300, Dec. 5, 2008, Sec. 112.1 was 
amended by revising paragraphs (d)(2)(i), (d)(2)(ii) and (d)(4) and 
adding paragraphs (d)(8) through (d)(12), effective Feb. 3, 2009. At 74 
FR 5900, Feb. 3, 2009, these amendments were delayed. At 74 FR 14736, 
Apr. 1, 2009, these amendments were further delayed to January 14, 2010. 
For the convenience of the user, the added and revised text is set forth 
as follows:



Sec. 112.1  General applicability.

                                * * * * *

    (d) * * *
    (2) * * *
    (i) The completely buried storage capacity of the facility is 42,000 
U.S. gallons or less of

[[Page 23]]

oil. For purposes of this exemption, the completely buried storage 
capacity of a facility excludes the capacity of a completely buried 
tank, as defined in Sec. 112.2, and connected underground piping, 
underground ancillary equipment, and containment systems, that is 
currently subject to all of the technical requirements of part 280 of 
this chapter or all of the technical requirements of a State program 
approved under part 281 of this chapter, or the capacity of any 
underground oil storage tanks deferred under 40 CFR part 280 that supply 
emergency diesel generators at a nuclear power generation facility 
licensed by the Nuclear Regulatory Commission and subject to any Nuclear 
Regulatory Commission provision regarding design and quality criteria, 
not limited to 10 CFR part 50. The completely buried storage capacity of 
a facility also excludes the capacity of a container that is 
``permanently closed,'' as defined in Sec. 112.2 and the capacity of 
intra-facility gathering lines subject to the regulatory requirements of 
49 CFR part 192 or 195.
    (ii) The aggregate aboveground storage capacity of the facility is 
1,320 U.S. gallons or less of oil. For the purposes of this exemption, 
only containers with a capacity of 55 U.S. gallons or greater are 
counted. The aggregate aboveground storage capacity of a facility 
excludes:
    (A) The capacity of a container that is ``permanently closed'' as 
defined in Sec. 112.2;
    (B) The capacity of a ``motive power container'' as defined in Sec. 
112.2;
    (C) The capacity of hot-mix asphalt or any hot-mix asphalt 
container;
    (D) The capacity of a container for heating oil used solely at a 
single-family residence;
    (E) The capacity of pesticide application equipment and related mix 
containers.
    (F) The capacity of a produced water container, as defined in Sec. 
112.2, and any associated piping or appurtenances downstream of the 
container, that meets the requirements at Sec. 112.9(c)(6)(i).

                                * * * * *

    (4) Any completely buried storage tank, as defined in Sec. 112.2, 
and connected underground piping, underground ancillary equipment, and 
containment systems, at any facility, that is subject to all of the 
technical requirements of part 280 of this chapter or a State program 
approved under part 281 of this chapter, or any underground oil storage 
tanks including below-grade vaulted tanks, deferred under 40 CFR part 
280, as originally promulgated, that supply emergency diesel generators 
at a nuclear power generation facility licensed by the Nuclear 
Regulatory Commission, except that such a tank may qualify for the 
exemption if it is subject to any Nuclear Regulatory Commission 
provision regarding design and quality criteria, not limited to 10 CFR 
part 50. Such emergency generator tanks must be marked on the facility 
diagram as provided in Sec. 112.7(a)(3), if the facility is otherwise 
subject to this part.

                                * * * * *

    (8) Hot-mix asphalt, or any hot-mix asphalt container.
    (9) Any container for heating oil used solely at a single-family 
residence.
    (10) Any pesticide application equipment or related mix containers.
    (11) Intra-facility gathering lines subject to the regulatory 
requirements of 49 CFR part 192 or 195, except that such a line's 
location must be identified and marked as ``exempt'' on the facility 
diagram as provided in Sec. 112.7(a)(3), if the facility is otherwise 
subject to this part.
    (12) A produced water container, as defined in Sec. 112.2 and any 
associated piping or appurtenances downstream of the container, that 
meets the requirements at Sec. 112.9(c)(6)(i), except that such a 
tank's location must be identified and marked as ``exempt'' on the 
facility diagram as provided in Sec. 112.7(a)(3), if the facility is 
otherwise subject to this part.

                                * * * * *



Sec. 112.2  Definitions.

    For the purposes of this part:
    Adverse weather means weather conditions that make it difficult for 
response equipment and personnel to clean up or remove spilled oil, and 
that must be considered when identifying response systems and equipment 
in a response plan for the applicable operating environment. Factors to 
consider include significant wave height as specified in Appendix E to 
this part (as appropriate), ice conditions, temperatures, weather-
related visibility, and currents within the area in which the systems or 
equipment is intended to function.
    Alteration means any work on a container involving cutting, burning, 
welding, or heating operations that changes the physical dimensions or 
configuration of the container.
    Animal fat means a non-petroleum oil, fat, or grease of animal, 
fish, or marine mammal origin.
    Breakout tank means a container used to relieve surges in an oil 
pipeline system or to receive and store oil transported by a pipeline 
for reinjection and continued transportation by pipeline.

[[Page 24]]

    Bulk storage container means any container used to store oil. These 
containers are used for purposes including, but not limited to, the 
storage of oil prior to use, while being used, or prior to further 
distribution in commerce. Oil-filled electrical, operating, or 
manufacturing equipment is not a bulk storage container.
    Bunkered tank means a container constructed or placed in the ground 
by cutting the earth and re-covering the container in a manner that 
breaks the surrounding natural grade, or that lies above grade, and is 
covered with earth, sand, gravel, asphalt, or other material. A bunkered 
tank is considered an aboveground storage container for purposes of this 
part.
    Completely buried tank means any container completely below grade 
and covered with earth, sand, gravel, asphalt, or other material. 
Containers in vaults, bunkered tanks, or partially buried tanks are 
considered aboveground storage containers for purposes of this part.
    Complex means a facility possessing a combination of transportation-
related and non-transportation-related components that is subject to the 
jurisdiction of more than one Federal agency under section 311(j) of the 
CWA.
    Contiguous zone means the zone established by the United States 
under Article 24 of the Convention of the Territorial Sea and Contiguous 
Zone, that is contiguous to the territorial sea and that extends nine 
miles seaward from the outer limit of the territorial area.
    Contract or other approved means means:
    (1) A written contractual agreement with an oil spill removal 
organization that identifies and ensures the availability of the 
necessary personnel and equipment within appropriate response times; 
and/or
    (2) A written certification by the owner or operator that the 
necessary personnel and equipment resources, owned or operated by the 
facility owner or operator, are available to respond to a discharge 
within appropriate response times; and/or
    (3) Active membership in a local or regional oil spill removal 
organization that has identified and ensures adequate access through 
such membership to necessary personnel and equipment to respond to a 
discharge within appropriate response times in the specified geographic 
area; and/or
    (4) Any other specific arrangement approved by the Regional 
Administrator upon request of the owner or operator.
    Discharge includes, but is not limited to, any spilling, leaking, 
pumping, pouring, emitting, emptying, or dumping of oil, but excludes 
discharges in compliance with a permit under section 402 of the CWA; 
discharges resulting from circumstances identified, reviewed, and made a 
part of the public record with respect to a permit issued or modified 
under section 402 of the CWA, and subject to a condition in such permit; 
or continuous or anticipated intermittent discharges from a point 
source, identified in a permit or permit application under section 402 
of the CWA, that are caused by events occurring within the scope of 
relevant operating or treatment systems. For purposes of this part, the 
term discharge shall not include any discharge of oil that is authorized 
by a permit issued under section 13 of the River and Harbor Act of 1899 
(33 U.S.C. 407).
    Facility means any mobile or fixed, onshore or offshore building, 
structure, installation, equipment, pipe, or pipeline (other than a 
vessel or a public vessel) used in oil well drilling operations, oil 
production, oil refining, oil storage, oil gathering, oil processing, 
oil transfer, oil distribution, and waste treatment, or in which oil is 
used, as described in Appendix A to this part. The boundaries of a 
facility depend on several site-specific factors, including, but not 
limited to, the ownership or operation of buildings, structures, and 
equipment on the same site and the types of activity at the site.
    Farm means a facility on a tract of land devoted to the production 
of crops or raising of animals, including fish, which produced and sold, 
or normally would have produced and sold, $1,000 or more of agricultural 
products during a year.
    Fish and wildlife and sensitive environments means areas that may be 
identified by their legal designation or by evaluations of Area 
Committees (for planning) or members of the Federal

[[Page 25]]

On-Scene Coordinator's spill response structure (during responses). 
These areas may include wetlands, National and State parks, critical 
habitats for endangered or threatened species, wilderness and natural 
resource areas, marine sanctuaries and estuarine reserves, conservation 
areas, preserves, wildlife areas, wildlife refuges, wild and scenic 
rivers, recreational areas, national forests, Federal and State lands 
that are research national areas, heritage program areas, land trust 
areas, and historical and archaeological sites and parks. These areas 
may also include unique habitats such as aquaculture sites and 
agricultural surface water intakes, bird nesting areas, critical 
biological resource areas, designated migratory routes, and designated 
seasonal habitats.
    Injury means a measurable adverse change, either long- or short-
term, in the chemical or physical quality or the viability of a natural 
resource resulting either directly or indirectly from exposure to a 
discharge, or exposure to a product of reactions resulting from a 
discharge.
    Maximum extent practicable means within the limitations used to 
determine oil spill planning resources and response times for on-water 
recovery, shoreline protection, and cleanup for worst case discharges 
from onshore non-transportation-related facilities in adverse weather. 
It includes the planned capability to respond to a worst case discharge 
in adverse weather, as contained in a response plan that meets the 
requirements in Sec. 112.20 or in a specific plan approved by the 
Regional Administrator.
    Mobile refueler means a bulk storage container onboard a vehicle or 
towed, that is designed or used solely to store and transport fuel for 
transfer into or from an aircraft, motor vehicle, locomotive, vessel, 
ground service equipment, or other oil storage container.
    Motive power container means any onboard bulk storage container used 
primarily to power the movement of a motor vehicle, or ancillary onboard 
oil-filled operational equipment. An onboard bulk storage container 
which is used to store or transfer oil for further distribution is not a 
motive power container. The definition of motive power container does 
not include oil drilling or workover equipment, including rigs.
    Navigable waters of the United States means ``navigable waters'' as 
defined in section 502(7) of the FWPCA, and includes:
    (1) All navigable waters of the United States, as defined in 
judicial decisions prior to passage of the 1972 Amendments to the FWPCA 
(Pub. L. 92-500), and tributaries of such waters;
    (2) Interstate waters;
    (3) Intrastate lakes, rivers, and streams which are utilized by 
interstate travelers for recreational or other purposes; and
    (4) Intrastate lakes, rivers, and streams from which fish or 
shellfish are taken and sold in interstate commerce.
    Non-petroleum oil means oil of any kind that is not petroleum-based, 
including but not limited to: Fats, oils, and greases of animal, fish, 
or marine mammal origin; and vegetable oils, including oils from seeds, 
nuts, fruits, and kernels.
    Offshore facility means any facility of any kind (other than a 
vessel or public vessel) located in, on, or under any of the navigable 
waters of the United States, and any facility of any kind that is 
subject to the jurisdiction of the United States and is located in, on, 
or under any other waters.
    Oil means oil of any kind or in any form, including, but not limited 
to: fats, oils, or greases of animal, fish, or marine mammal origin; 
vegetable oils, including oils from seeds, nuts, fruits, or kernels; 
and, other oils and greases, including petroleum, fuel oil, sludge, 
synthetic oils, mineral oils, oil refuse, or oil mixed with wastes other 
than dredged spoil.
    Oil-filled operational equipment means equipment that includes an 
oil storage container (or multiple containers) in which the oil is 
present solely to support the function of the apparatus or the device. 
Oil-filled operational equipment is not considered a bulk storage 
container, and does not include oil-filled manufacturing equipment 
(flow-through process). Examples of oil-filled operational equipment 
include, but are not limited to, hydraulic systems, lubricating systems 
(e.g., those for pumps, compressors and other rotating

[[Page 26]]

equipment, including pumpjack lubrication systems), gear boxes, 
machining coolant systems, heat transfer systems, transformers, circuit 
breakers, electrical switches, and other systems containing oil solely 
to enable the operation of the device.
    Oil Spill Removal Organization means an entity that provides oil 
spill response resources, and includes any for-profit or not-for-profit 
contractor, cooperative, or in-house response resources that have been 
established in a geographic area to provide required response resources.
    Onshore facility means any facility of any kind located in, on, or 
under any land within the United States, other than submerged lands.
    Owner or operator means any person owning or operating an onshore 
facility or an offshore facility, and in the case of any abandoned 
offshore facility, the person who owned or operated or maintained the 
facility immediately prior to such abandonment.
    Partially buried tank means a storage container that is partially 
inserted or constructed in the ground, but not entirely below grade, and 
not completely covered with earth, sand, gravel, asphalt, or other 
material. A partially buried tank is considered an aboveground storage 
container for purposes of this part.
    Permanently closed means any container or facility for which:
    (1) All liquid and sludge has been removed from each container and 
connecting line; and
    (2) All connecting lines and piping have been disconnected from the 
container and blanked off, all valves (except for ventilation valves) 
have been closed and locked, and conspicuous signs have been posted on 
each container stating that it is a permanently closed container and 
noting the date of closure.
    Person includes an individual, firm, corporation, association, or 
partnership.
    Petroleum oil means petroleum in any form, including but not limited 
to crude oil, fuel oil, mineral oil, sludge, oil refuse, and refined 
products.
    Production facility means all structures (including but not limited 
to wells, platforms, or storage facilities), piping (including but not 
limited to flowlines or gathering lines), or equipment (including but 
not limited to workover equipment, separation equipment, or auxiliary 
non-transportation-related equipment) used in the production, 
extraction, recovery, lifting, stabilization, separation or treating of 
oil, or associated storage or measurement, and located in a single 
geographical oil or gas field operated by a single operator.
    Regional Administrator means the Regional Administrator of the 
Environmental Protection Agency, in and for the Region in which the 
facility is located.
    Repair means any work necessary to maintain or restore a container 
to a condition suitable for safe operation, other than that necessary 
for ordinary, day-to-day maintenance to maintain the functional 
integrity of the container and that does not weaken the container.
    Spill Prevention, Control, and Countermeasure Plan; SPCC Plan, or 
Plan means the document required by Sec. 112.3 that details the 
equipment, workforce, procedures, and steps to prevent, control, and 
provide adequate countermeasures to a discharge.
    Storage capacity of a container means the shell capacity of the 
container.
    Transportation-related and non-transportation-related, as applied to 
an onshore or offshore facility, are defined in the Memorandum of 
Understanding between the Secretary of Transportation and the 
Administrator of the Environmental Protection Agency, dated November 24, 
1971, (appendix A of this part).
    United States means the States, the District of Columbia, the 
Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana 
Islands, Guam, American Samoa, the U.S. Virgin Islands, and the Pacific 
Island Governments.
    Vegetable oil means a non-petroleum oil or fat of vegetable origin, 
including but not limited to oils and fats derived from plant seeds, 
nuts, fruits, and kernels.
    Vessel means every description of watercraft or other artificial 
contrivance used, or capable of being used, as

[[Page 27]]

a means of transportation on water, other than a public vessel.
    Wetlands means those areas that are inundated or saturated by 
surface or groundwater at a frequency or duration sufficient to support, 
and that under normal circumstances do support, a prevalence of 
vegetation typically adapted for life in saturated soil conditions. 
Wetlands generally include playa lakes, swamps, marshes, bogs, and 
similar areas such as sloughs, prairie potholes, wet meadows, prairie 
river overflows, mudflats, and natural ponds.
    Worst case discharge for an onshore non-transportation-related 
facility means the largest foreseeable discharge in adverse weather 
conditions as determined using the worksheets in Appendix D to this 
part.

[67 FR 47140, July 17, 2002, as amended at 71 FR 77290, Dec. 26, 2006; 
73 FR 71943, Nov. 26, 2008]

    Effective Date Note: At 74 FR 74300, Dec. 5, 2008, Sec. 112.2 was 
amended by revising the definitions for ``Facility'' ``Production 
facility'', and adding definitions for ``Loading/unloading rack'' and 
``Produced water container'' in alphabetical order, effective Feb. 3, 
2009. At 74 FR 5900, Feb. 3, 2009, these amendments were delayed. At 74 
FR 14736, Apr. 1, 2009, these amendments were further delayed to January 
14, 2010. For the convenience of the user, the added and revised text is 
set forth as follows:



Sec. 112.2  Definitions.

                                * * * * *

    Facility means any mobile or fixed, onshore or offshore building, 
property, parcel, lease, structure, installation, equipment, pipe, or 
pipeline (other than a vessel or a public vessel) used in oil well 
drilling operations, oil production, oil refining, oil storage, oil 
gathering, oil processing, oil transfer, oil distribution, and oil waste 
treatment, or in which oil is used, as described in Appendix A to this 
part. The boundaries of a facility depend on several site-specific 
factors, including but not limited to, the ownership or operation of 
buildings, structures, and equipment on the same site and types of 
activity at the site. Contiguous or non-contiguous buildings, 
properties, parcels, leases, structures, installations, pipes, or 
pipelines under the ownership or operation of the same person may be 
considered separate facilities. Only this definition governs whether a 
facility is subject to this part.

                                * * * * *

    Loading/unloading rack means a fixed structure (such as a platform, 
gangway) necessary for loading or unloading a tank truck or tank car, 
which is located at a facility subject to the requirements of this part. 
A loading/unloading rack includes a loading or unloading arm, and may 
include any combination of the following: piping assemblages, valves, 
pumps, shut-off devices, overfill sensors, or personnel safety devices.

                                * * * * *

    Produced water container means a storage container at an oil 
production facility used to store the produced water after initial oil/
water separation, and prior to reinjection, beneficial reuse, discharge, 
or transfer for disposal.
    Production facility means all structures (including but not limited 
to wells, platforms, or storage facilities), piping (including but not 
limited to flowlines or intra-facility gathering lines), or equipment 
(including but not limited to workover equipment, separation equipment, 
or auxiliary non-transportation-related equipment) used in the 
production, extraction, recovery, lifting, stabilization, separation or 
treating of oil (including condensate), or associated storage or 
measurement, and is located in an oil or gas field, at a facility. This 
definition governs whether such structures, piping, or equipment are 
subject to a specific section of this part.

                                * * * * *



Sec. 112.3  Requirement to prepare and implement a Spill Prevention, Control, 

and Countermeasure Plan.

    The owner or operator of an onshore or offshore facility subject to 
this section must prepare a Spill Prevention, Control, and 
Countermeasure Plan (hereafter ``SPCC Plan'' or ``Plan),'' in writing, 
and in accordance with Sec. 112.7, and any other applicable section of 
this part.
    (a)(1) If your onshore or offshore facility was in operation on or 
before August 16, 2002, you must maintain your Plan, but must amend it, 
if necessary to ensure compliance with this part, and implement the Plan 
no later than November 10, 2010. If your onshore or offshore facility 
becomes operational after August 16, 2002, through November 10, 2010, 
and could reasonably be expected to have a discharge as described in 
Sec. 112.1(b), you must prepare and implement a Plan on or before 
November 10, 2010.

[[Page 28]]

    (2) If your farm as defined in Sec. 112.2 was in operation on or 
before August 16, 2002, you must maintain your Plan, but must amend it, 
if necessary to ensure compliance with this part, and implement the Plan 
no later than November 10, 2010. If your farm becomes operational after 
August 16, 2002, through November 10, 2010, and could reasonably be 
expected to have a discharge as described in Sec. 112.1(b), you must 
prepare and implement a Plan on or before November 10, 2010.
    (b)(1) If you are the owner or operator of an onshore or offshore 
facility that becomes operational after November 10, 2010, and could 
reasonably be expected to have a discharge as described in Sec. 
112.1(b), you must prepare and implement a Plan before you begin 
operations.
    (2) If you are the owner or operator of a farm as defined in Sec. 
112.2 that becomes operational after November 10, 2010, and could 
reasonably be expected to have a discharge as described in Sec. 
112.1(b), you must prepare and implement a Plan before you begin 
operations.
    (c) If you are the owner or operator of an onshore or offshore 
mobile facility, such as an onshore drilling or workover rig, barge 
mounted offshore drilling or workover rig, or portable fueling facility, 
you must prepare, implement, and maintain a facility Plan as required by 
this section. You must maintain your Plan, but must amend and implement 
it, if necessary to ensure compliance with this part, on or before 
November 10, 2010. If your onshore or offshore mobile facility becomes 
operational after November 10, 2010, and could reasonably be expected to 
have a discharge as described in Sec. 112.1(b), you must prepare and 
implement a Plan before you begin operations. This provision does not 
require that you prepare a new Plan each time you move the facility to a 
new site. The Plan may be a general Plan. When you move the mobile or 
portable facility, you must locate and install it using the discharge 
prevention practices outlined in the Plan for the facility. The Plan is 
applicable only while the facility is in a fixed (non-transportation) 
operating mode.
    (d) Except as provided in Sec. 112.6, a licensed Professional 
Engineer must review and certify a Plan for it to be effective to 
satisfy the requirements of this part.
    (1) By means of this certification the Professional Engineer 
attests:
    (i) That he is familiar with the requirements of this part ;
    (ii) That he or his agent has visited and examined the facility;
    (iii) That the Plan has been prepared in accordance with good 
engineering practice, including consideration of applicable industry 
standards, and with the requirements of this part;
    (iv) That procedures for required inspections and testing have been 
established; and
    (v) That the Plan is adequate for the facility.
    (2) Such certification shall in no way relieve the owner or operator 
of a facility of his duty to prepare and fully implement such Plan in 
accordance with the requirements of this part.
    (e) If you are the owner or operator of a facility for which a Plan 
is required under this section, you must:
    (1) Maintain a complete copy of the Plan at the facility if the 
facility is normally attended at least four hours per day, or at the 
nearest field office if the facility is not so attended, and
    (2) Have the Plan available to the Regional Administrator for on-
site review during normal working hours.
    (f) Extension of time. (1) The Regional Administrator may authorize 
an extension of time for the preparation and full implementation of a 
Plan, or any amendment thereto, beyond the time permitted for the 
preparation, implementation, or amendment of a Plan under this part, 
when he finds that the owner or operator of a facility subject to this 
section, cannot fully comply with the requirements as a result of either 
nonavailability of qualified personnel, or delays in construction or 
equipment delivery beyond the control and without the fault of such 
owner or operator or his agents or employees.
    (2) If you are an owner or operator seeking an extension of time 
under paragraph (f)(1) of this section, you may submit a written 
extension request to the Regional Administrator. Your request must 
include:

[[Page 29]]

    (i) A full explanation of the cause for any such delay and the 
specific aspects of the Plan affected by the delay;
    (ii) A full discussion of actions being taken or contemplated to 
minimize or mitigate such delay; and
    (iii) A proposed time schedule for the implementation of any 
corrective actions being taken or contemplated, including interim dates 
for completion of tests or studies, installation and operation of any 
necessary equipment, or other preventive measures. In addition you may 
present additional oral or written statements in support of your 
extension request.
    (3) The submission of a written extension request under paragraph 
(f)(2) of this section does not relieve you of your obligation to comply 
with the requirements of this part. The Regional Administrator may 
request a copy of your Plan to evaluate the extension request. When the 
Regional Administrator authorizes an extension of time for particular 
equipment or other specific aspects of the Plan, such extension does not 
affect your obligation to comply with the requirements related to other 
equipment or other specific aspects of the Plan for which the Regional 
Administrator has not expressly authorized an extension.
    (g) Qualified Facilities. The owner or operator of a qualified 
facility as defined in this subparagraph may self-certify his or her 
facility's Plan, as provided in Sec. 112.6. A qualified facility is one 
that:
    (1) Has an aggregate aboveground storage capacity of 10,000 gallons 
or less; and
    (2) Has had no single discharge as described in Sec. 112.1(b) 
exceeding 1,000 U.S. gallons or no two discharges as described in Sec. 
112.1(b) each exceeding 42 U.S. gallons within any twelve month period 
in the three years prior to the SPCC Plan self-certification date, or 
since becoming subject to this part if the facility has been in 
operation for less than three years (other than discharges as described 
in Sec. 112.1(b) that are the result of natural disasters, acts of war, 
or terrorism).

[67 FR 47140, July 17, 2002, as amended at 68 FR 1351, Jan. 9, 2003; 68 
FR 18894, Apr. 17, 2003; 69 FR 48798, Aug. 11, 2004; 71 FR 8466, Feb. 
17, 2006; 71 FR 77290, Dec. 26, 2006; 72 FR 27447, May 16, 2007; 74 FR 
29141, June 19, 2009]

    Effective Date Note: At 74 FR 74301, Dec. 5, 2008, Sec. 112.3 was 
amended by revising the introductory text, revising paragraphs (b)(1) 
and (g), and adding paragraphs (b)(3), (d)(1)(vi) and (d)(1)(vii), 
effective Feb. 3, 2009. At 74 FR 5900, Feb. 3, 2009, these amendments 
were delayed. At 74 FR 14736, Apr. 1, 2009, these amendments were 
further delayed to January 14, 2010. For the convenience of the user, 
the added and revised text is set forth as follows:



Sec. 112.3  Requirement to prepare and implement a Spill Prevention, 

Control, and Countermeasure Plan.

    The owner or operator or an onshore or offshore facility subject to 
this section must prepare in writing and implement a Spill Prevention 
Control and Countermeasure Plan (hereafter ``SPCC Plan'' or ``Plan''),'' 
in accordance with Sec. 112.7 and any other applicable section of this 
part.

                                * * * * *

    (b)(1) If you are the owner or operator of an onshore or offshore 
facility (excluding oil production facilities) that becomes operational 
after July 1, 2009, and could reasonably be expected to have a discharge 
as described in Sec. 112.1(b), you must prepare and implement a Plan 
before you begin operations.

                                * * * * *

    (3) If you are the owner or operator of an oil production facility 
that becomes operational after July 1, 2009, and could reasonably be 
expected to have a discharge as described in Sec. 112.1(b), you must 
prepare and implement a Plan within six months after you begin 
operations.

                                * * * * *

    (d) * * *
    (vi) That, if applicable, all exempted produced water containers and 
any associated piping and appurtenances downstream of the container, 
including flowlines and other appurtenances associated with injection or 
discharge, meet the criteria described in Sec. 112.9(c)(6)(i) and are 
identified in the Plan; and appropriate produced water characteristics 
in the container and any associated piping and appurtenances downstream 
of the

[[Page 30]]

container, procedures, or maintenance required to meet the standards of 
Part 110 required for the produced water container are identified in the 
Plan.
    (vii) That, if applicable, for a produced water container subject to 
Sec. 112.9(c)(6)(ii), any procedure to minimize the amount of free-
phase oil is designed to reduce the accumulation of free-phase oil and 
the procedures and frequency for required inspections, maintenance and 
testing have been established and are described in the Plan.

                                * * * * *

    (g) Qualified Facilities. The owner or operator of a qualified 
facility as defined in this subparagraph may self-certify his facility's 
Plan, as provided in Sec. 112.6. A qualified facility is one that meets 
the following Tier I or Tier II qualified facility criteria:
    (1) A Tier I qualified facility meets the qualification criteria in 
paragraph (g)(2) of this section and has no individual aboveground oil 
storage container with a capacity greater than 5,000 U.S. gallons.
    (2) A Tier II qualified facility is one that has had no single 
discharge as described in Sec. 112.1(b) exceeding 1,000 U.S. gallons or 
no two discharges as described in Sec. 112.1(b) each exceeding 42 U.S. 
gallons within any twelve month period in the three years prior to the 
SPCC Plan self-certification date, or since becoming subject to this 
part if the facility has been in operation for less than three years 
(other than discharges as described in Sec. 112.1(b) that are the 
result of natural disasters, acts of war, or terrorism), and either:
    (i) Has an aggregate aboveground oil storage capacity of 10,000 U.S. 
gallons or less; or
    (ii) Is an onshore oil production facility with:
    (A) No more than two producing wells per single tank battery, each 
of which produce ten barrels or less of crude oil per well per day, if 
the facility has an injection well; or
    (B) No more than four producing wells per single tank battery, each 
of which produce ten barrels or less of crude oil per well per day, and 
with no injection wells at the facility.



Sec. 112.4  Amendment of Spill Prevention, Control, and Countermeasure Plan by 

Regional Administrator.

    If you are the owner or operator of a facility subject to this part, 
you must:
    (a) Notwithstanding compliance with Sec. 112.3, whenever your 
facility has discharged more than 1,000 U.S. gallons of oil in a single 
discharge as described in Sec. 112.1(b), or discharged more than 42 
U.S. gallons of oil in each of two discharges as described in Sec. 
112.1(b), occurring within any twelve month period, submit the following 
information to the Regional Administrator within 60 days from the time 
the facility becomes subject to this section:
    (1) Name of the facility;
    (2) Your name;
    (3) Location of the facility;
    (4) Maximum storage or handling capacity of the facility and normal 
daily throughput;
    (5) Corrective action and countermeasures you have taken, including 
a description of equipment repairs and replacements;
    (6) An adequate description of the facility, including maps, flow 
diagrams, and topographical maps, as necessary;
    (7) The cause of such discharge as described in Sec. 112.1(b), 
including a failure analysis of the system or subsystem in which the 
failure occurred;
    (8) Additional preventive measures you have taken or contemplated to 
minimize the possibility of recurrence; and
    (9) Such other information as the Regional Administrator may 
reasonably require pertinent to the Plan or discharge.
    (b) Take no action under this section until it applies to your 
facility. This section does not apply until the expiration of the time 
permitted for the initial preparation and implementation of the Plan 
under Sec. 112.3, but not including any amendments to the Plan.
    (c) Send to the appropriate agency or agencies in charge of oil 
pollution control activities in the State in which the facility is 
located a complete copy of all information you provided to the Regional 
Administrator under paragraph (a) of this section. Upon receipt of the 
information such State agency or agencies may conduct a review and make 
recommendations to the Regional Administrator as to further procedures, 
methods, equipment, and other requirements necessary to prevent and to 
contain discharges from your facility.
    (d) Amend your Plan, if after review by the Regional Administrator 
of the information you submit under paragraph (a) of this section, or 
submission of information to EPA by the State agency under paragraph (c) 
of this section, or after on-site review of your Plan, the Regional 
Administrator requires that you do so. The Regional

[[Page 31]]

Administrator may require you to amend your Plan if he finds that it 
does not meet the requirements of this part or that amendment is 
necessary to prevent and contain discharges from your facility.
    (e) Act in accordance with this paragraph when the Regional 
Administrator proposes by certified mail or by personal delivery that 
you amend your SPCC Plan. If the owner or operator is a corporation, he 
must also notify by mail the registered agent of such corporation, if 
any and if known, in the State in which the facility is located. The 
Regional Administrator must specify the terms of such proposed 
amendment. Within 30 days from receipt of such notice, you may submit 
written information, views, and arguments on the proposed amendment. 
After considering all relevant material presented, the Regional 
Administrator must either notify you of any amendment required or 
rescind the notice. You must amend your Plan as required within 30 days 
after such notice, unless the Regional Administrator, for good cause, 
specifies another effective date. You must implement the amended Plan as 
soon as possible, but not later than six months after you amend your 
Plan, unless the Regional Administrator specifies another date.
    (f) If you appeal a decision made by the Regional Administrator 
requiring an amendment to an SPCC Plan, send the appeal to the EPA 
Administrator in writing within 30 days of receipt of the notice from 
the Regional Administrator requiring the amendment under paragraph (e) 
of this section. You must send a complete copy of the appeal to the 
Regional Administrator at the time you make the appeal. The appeal must 
contain a clear and concise statement of the issues and points of fact 
in the case. It may also contain additional information from you, or 
from any other person. The EPA Administrator may request additional 
information from you, or from any other person. The EPA Administrator 
must render a decision within 60 days of receiving the appeal and must 
notify you of his decision.



Sec. 112.5  Amendment of Spill Prevention, Control, and Countermeasure Plan by 

owners or operators.

    If you are the owner or operator of a facility subject to this part, 
you must:
    (a) Amend the SPCC Plan for your facility in accordance with the 
general requirements in Sec. 112.7, and with any specific section of 
this part applicable to your facility, when there is a change in the 
facility design, construction, operation, or maintenance that materially 
affects its potential for a discharge as described in Sec. 112.1(b). 
Examples of changes that may require amendment of the Plan include, but 
are not limited to: commissioning or decommissioning containers; 
replacement, reconstruction, or movement of containers; reconstruction, 
replacement, or installation of piping systems; construction or 
demolition that might alter secondary containment structures; changes of 
product or service; or revision of standard operation or maintenance 
procedures at a facility. An amendment made under this section must be 
prepared within six months, and implemented as soon as possible, but not 
later than six months following preparation of the amendment.
    (b) Notwithstanding compliance with paragraph (a) of this section, 
complete a review and evaluation of the SPCC Plan at least once every 
five years from the date your facility becomes subject to this part; or, 
if your facility was in operation on or before August 16, 2002, five 
years from the date your last review was required under this part. As a 
result of this review and evaluation, you must amend your SPCC Plan 
within six months of the review to include more effective prevention and 
control technology if the technology has been field-proven at the time 
of the review and will significantly reduce the likelihood of a 
discharge as described in Sec. 112.1(b) from the facility. You must 
implement any amendment as soon as possible, but not later than six 
months following preparation of any amendment. You must document your 
completion of the review and evaluation, and must sign a statement as to 
whether you will amend the Plan, either at the beginning or end of the 
Plan or in a log or an appendix to the Plan. The following

[[Page 32]]

words will suffice, ``I have completed review and evaluation of the SPCC 
Plan for (name of facility) on (date), and will (will not) amend the 
Plan as a result.''
    (c) Except as provided in Sec. 112.6, have a Professional Engineer 
certify any technical amendments to your Plan in accordance with Sec. 
112.3(d).

[67 FR 47140, July 17, 2002, as amended at 71 FR 77291, Dec. 26, 2006]

    Effective Date Note: At 74 FR 74301, Dec. 5, 2008, Sec. 112.5 was 
amended by redesignating paragraphs (b) and (c) as paragraphs (d) and 
(e), revising newly redesignated paragraph (d) and adding new paragraphs 
(b) and (c), effective Feb. 3, 2009. At 74 FR 5900, Feb. 3, 2009, these 
amendments were delayed. At 74 FR 14736, Apr. 1, 2009, these amendments 
were further delayed to January 14, 2010. For the convenience of the 
user, the added and revised text is set forth as follows:



Sec. 112.5  Amendment of Spill Prevention, Control, and Countermeasure 

Plan by owners or operators.

                                * * * * *

    (b) For onshore oil production facilities with produced water 
containers exempted pursuant to the requirements at Sec. 
112.9(c)(6)(i), on an annual basis, the owner or operator must verify 
that the produced water characteristics in the container and any 
associated piping and appurtenances downstream of the container, 
procedures, or maintenance required to meet the standards of Part 110 
that formed the basis for the PE certification described in that section 
are maintained. If an owner or operator fails to maintain the produced 
water characteristics in the container, or in the associated downstream 
piping and appurtenances; procedures; or maintenance required to meet 
the standards of 40 CFR part 110 that formed the basis for the PE's 
certification, then the produced water container and any associated 
piping and appurtenances downstream are ineligible for this exemption, 
and you must, within six months, comply with all provisions under this 
part applicable to the container and amend your Plan. A technical 
amendment made under this section must be prepared within three months 
and implemented as soon as possible, but not later than three months 
following the preparation of the amendment.
    (c) The owner or operator of an onshore oil production facility with 
produced water containers exempted according to the requirements at 
Sec. 112.9(c)(6)(i), must maintain the verifications in accordance with 
Sec. 112.7(e). You must document your verification and sign a statement 
that the produced water characteristics in the container and any 
associated piping and appurtenances downstream from the container, 
procedures, or maintenance required to meet the standards of Part 110 
are maintained in accordance with the PE certification. The following 
words will suffice, ``I verify that the produced water characteristics 
in the container and any associated piping and appurtenances downstream 
of the container, procedures, or maintenance required to meet the 
standards of 40 CFR part 110 that formed the basis for the PE's 
certification are maintained.''
    (d) Notwithstanding compliance with paragraphs (a) and (c) of this 
section, complete a review and evaluation of the SPCC Plan at least once 
every five years from the date your facility becomes subject to this 
part; or, if your facility was in operation on or before August 16, 
2002, five years from the date your last review was required under this 
part. As a result of this review and evaluation, you must amend your 
SPCC Plan within six months of the review to include more effective 
prevention and control technology if the technology has been field-
proven at the time of the review and will significantly reduce the 
likelihood of a discharge as described in Sec. 112.1(b) from the 
facility. You must implement any amendment as soon as possible, but not 
later than six months following preparation of any amendment. You must 
document your completion of the review and evaluation, and must sign a 
statement as to whether you will amend the Plan, either at the beginning 
or end of the Plan or in a log or an appendix to the Plan. The following 
words will suffice, ``I have completed review and evaluation of the SPCC 
Plan for (name of facility) on (date), and will (will not) amend the 
Plan as a result.''

                                * * * * *



Sec. 112.6  Qualified Facility Plan Requirements.

    (a) Preparation and Self-certification of Plan. If you are the owner 
or operator of a facility that meets the qualified facility 
qualification criteria in Sec. 112.3(g), you may choose to self-certify 
your Plan. You must certify in the Plan that:
    (1) You are familiar with the requirements of this part;
    (2) You have visited and examined the facility;
    (3) The Plan has been prepared in accordance with accepted and sound 
industry practices and standards, and with the requirements of this 
part;
    (4) Procedures for required inspections and testing have been 
established;

[[Page 33]]

    (5) The Plan is being fully implemented;
    (6) The facility meets the qualification criteria set forth under 
Sec. 112.3(g);
    (7) The Plan does not deviate from any requirement of this part as 
allowed by Sec. Sec. 112.7(a)(2) and 112.7(d), except as provided in 
paragraph (c) of this section; and
    (8) The Plan and individual(s) responsible for implementing the Plan 
have the full approval of management and the facility owner or operator 
has committed the necessary resources to fully implement the Plan.
    (b) Self-certification of Technical Amendments. If you self-certify 
your Plan pursuant to paragraph (a) of this section, you must certify 
any technical amendments to your Plan in accordance with paragraph (a) 
of this section when there is a change in the facility design, 
construction, operation, or maintenance that affects its potential for a 
discharge as described in Sec. 112.1(b) except:
    (1) If a Professional Engineer certified a portion of your Plan in 
accordance with paragraph (d) of this section, and the technical 
amendment affects this portion of the Plan, you must have the amended 
provisions of your Plan certified by a Professional Engineer in 
accordance with Sec. 112.6(d)(2).
    (2) If the change is such that the facility no longer meets the 
qualifying criteria in Sec. 112.3(g) because it exceeds 10,000 gallons 
in aggregate aboveground storage capacity, you must prepare a Plan in 
accordance with the general Plan requirements in Sec. 112.7 and the 
applicable requirements in subparts B and C, including having the Plan 
certified by a Professional Engineer as required under Sec. 112.3(d).
    (c) Applicable Requirements. Except as provided in this 
subparagraph, your self-certified SPCC Plan must comply with Sec. 112.7 
and the applicable requirements in subparts B and C of this part:
    (1) Environmental Equivalence. Your Plan may not include alternate 
methods which provide environmental equivalence pursuant to Sec. 
112.7(a)(2), unless each alternate method has been reviewed and 
certified in writing by a Professional Engineer, as provided in 
paragraph (d) of this section.
    (2) Impracticability. Your Plan may not include any determinations 
that secondary containment is impracticable and provisions in lieu of 
secondary containment pursuant to Sec. 112.7(d), unless each such 
determination and alternative provision has been reviewed and certified 
in writing by a Professional Engineer, as provided in paragraph (d) of 
this section.
    (3) Security (excluding oil production facilities). You must either:
    (i) Comply with the requirements under Sec. 112.7(g); or
    (ii) Describe in your Plan how you secure and control access to the 
oil handling, processing and storage areas; secure master flow and drain 
valves; prevent unauthorized access to starter controls on oil pumps; 
secure out-of-service and loading/unloading connections of oil 
pipelines; address the appropriateness of security lighting to both 
prevent acts of vandalism and assist in the discovery of oil discharges.
    (4) Bulk Storage Container Inspections. You must either:
    (i) Comply with the requirements under Sec. 112.8(c)(6) or Sec. 
112.12(c)(6), as applicable; or
    (ii) Test/inspect each aboveground container for integrity on a 
regular schedule and whenever material repairs are made. You must 
determine, in accordance with industry standards, the appropriate 
qualifications for personnel performing tests and inspections, the 
frequency and type of testing and inspections which take into account 
container size, configuration, and design (such as containers that are: 
shop built, skid-mounted, elevated, equipped with a liner, double 
walled, or partially buried). Examples of these integrity tests include, 
but are not limited to: visual inspection, hydrostatic testing, 
radiographic testing, ultrasonic testing, acoustic emissions testing, or 
other systems of non-destructive testing. You must keep comparison 
records and you must also inspect the container's supports and 
foundations. In addition, you must frequently inspect the outside of the 
container for signs of deterioration, discharges, or accumulation of oil 
inside diked areas. Records of inspections and tests kept under usual 
and customary business

[[Page 34]]

practices satisfy the recordkeeping requirements of this paragraph.
    (d) Professional Engineer Certification of Portions of a Qualified 
Facility's Self-certified Plan. As described in paragraph (c) of this 
section, the facility owner or operator may not self-certify alternative 
measures allowed under Sec. 112.7(a)(2) or (d), that are included in 
the facility's Plan. Such measures must be reviewed and certified, in 
writing, by a licensed Professional Engineer as follows:
    (1) For each alternative measure allowed under Sec. 112.7(a)(2), 
the Plan must be accompanied by a written statement by a Professional 
Engineer that states the reason for nonconformance and describes the 
alternative method and how it provides equivalent environmental 
protection in accordance with Sec. 112.7(a)(2). For each determination 
of impracticability of secondary containment pursuant to Sec. 112.7(d), 
the Plan must clearly explain why secondary containment measures are not 
practicable at this facility and provide the alternative measures 
required in Sec. 112.7(d) in lieu of secondary containment.
    (2) By certifying each measure allowed under Sec. 112.7(a)(2) and 
(d), the Professional Engineer attests:
    (i) That he is familiar with the requirements of this part;
    (ii) That he or his agent has visited and examined the facility; and
    (iii) That the alternative method of environmental equivalence in 
accordance with Sec. 112.7(a)(2) or the determination of 
impracticability and alternative measures in accordance with Sec. 
112.7(d) is consistent with good engineering practice, including 
consideration of applicable industry standards, and with the 
requirements of this part.
    (3) The review and certification by the Professional Engineer under 
this paragraph is limited to the alternative method which achieves 
equivalent environmental protection pursuant to Sec. 112.7(a)(2) or to 
the impracticability determination and measures in lieu of secondary 
containment pursuant to Sec. 112.7(d).

[71 FR 77291, Dec. 26, 2006]

    Effective Date Note: At 74 FR 74302, Dec. 5, 2008, Sec. 112.6 was 
revised, effective Feb. 3, 2009. At 74 FR 5900, Feb. 3, 2009, these 
amendments were delayed. At 74 FR 14736, Apr. 1, 2009, these amendments 
were further delayed to January 14, 2010. For the convenience of the 
user, the revised text is set forth as follows:



Sec. 112.6  Qualified Facilities Plan Requirements.

    Qualified facilities meeting the Tier I applicability criteria in 
Sec. 112.3(g)(1) are subject to the requirements in paragraph (a) of 
this section. Qualified facilities meeting the Tier II applicability 
criteria in Sec. 112.3(g)(2) are subject to the requirements in 
paragraph (b) of this section.
    (a) Tier I Qualified Facilities.
    (1) Preparation and Self-Certification of the Plan. If you are an 
owner or operator of a facility that meets the Tier I qualified facility 
criteria in Sec. 112.3(g)(1), you must either: comply with the 
requirements of paragraph (a)(3) of this section; or prepare and 
implement a Plan meeting requirements of paragraph (b) of this section; 
or prepare and implement a Plan meeting the general Plan requirements in 
Sec. 112.7 and applicable requirements in subparts B and C, including 
having the Plan certified by a Professional Engineer as required under 
Sec. 112.3(d). If you do not follow the Appendix G template, you must 
prepare an equivalent Plan that meets all of the applicable requirements 
listed in this part, and you must supplement it with a section cross-
referencing the location of requirements listed in this part and the 
equivalent requirements in the other prevention plan. To complete the 
template in Appendix G, you must certify that:
    (i) You are familiar with the applicable requirements of 40 CFR part 
112;
    (ii) You have visited and examined the facility;
    (iii) You prepared the Plan in accordance with accepted and sound 
industry practices and standards;
    (iv) You have established procedures for required inspections and 
testing in accordance with industry inspection and testing standards or 
recommended practices;
    (v) You will fully implement the Plan;
    (vi) The facility meets the qualification criteria in Sec. 
112.3(g)(1);
    (vii) The Plan does not deviate from any requirement of this part as 
allowed by Sec. 112.7(a)(2) and 112.7(d) or include an exemption/
measures pursuant to Sec. 112.9(c)(6) for produced water containers and 
any associated piping and appurtenances downstream from the container; 
and
    (viii) The Plan and individual(s) responsible for implementing this 
Plan have the approval of management, and the facility owner or operator 
has committed the necessary resources to fully implement this Plan.
    (2) Technical Amendments. You must certify any technical amendments 
to your Plan in

[[Page 35]]

accordance with paragraph (a)(1) of this section when there is a change 
in the facility design, construction, operation, or maintenance that 
affects its potential for a discharge as described in Sec. 112.1(b). If 
the facility change results in the facility no longer meeting the Tier I 
qualifying criteria in Sec. 112.3(g)(1) because an individual oil 
storage container capacity exceeds 5,000 U.S. gallons or the facility 
capacity exceeds 10,000 U.S. gallons in aggregate aboveground storage 
capacity, within six months following preparation of the amendment, you 
must either:
    (i) Prepare and implement a Plan in accordance with Sec. 112.6(b) 
if you meet the Tier II qualified facility criteria in Sec. 
112.3(g)(2); or
    (ii) Prepare and implement a Plan in accordance with the general 
Plan requirements in Sec. 112.7, and applicable requirements in 
subparts B and C, including having the Plan certified by a Professional 
Engineer as required under Sec. 112.3(d).
    (3) Plan Template and Applicable Requirements. Prepare and implement 
an SPCC Plan that meets the following requirements under Sec. 112.7 and 
in subparts B and C of this part: introductory paragraph of Sec. Sec. 
112.7, 112.7(a)(3)(i), 112.7(a)(3)(iv), 112.7(a)(3)(vi), 112.7(a)(4), 
112.7(a)(5), 112.7(c), 112.7(e), 112.7(f), 112.7(g), 112.7(k), 
112.8(b)(1), 112.8(b)(2), 112.8(c)(1), 112.8(c)(3), 112.8(c)(4), 
112.8(c)(5), 112.8(c)(6), 112.8(c)(10), 112.8(d)(4), 112.9(b), 
112.9(c)(1), 112.9(c)(2), 112.9(c)(3), 112.9(c)(4), 112.9(c)(5), 
112.9(d)(1), 112.9(d)(3), 112.9(d)(4), 112.10(b), 112.10(c), 112.10(d), 
112.12(b)(1), 112.12(b)(2), 112.12(c)(1), 112.12(c)(3), 112.12(c)(4), 
112.12(c)(5), 112.12(c)(6), 112.12(c)(10), and 112.12(d)(4). The 
template in Appendix G to this part has been developed to meet the 
requirements of 40 CFR part 112 and, when completed and signed by the 
owner or operator, may be used as the SPCC Plan. Additionally, you must 
meet the following requirements:
    (i) Failure analysis, in lieu of the requirements in Sec. 112.7(b). 
Where experience indicates a reasonable potential for equipment failure 
(such as loading or unloading equipment, tank overflow, rupture, or 
leakage, or any other equipment known to be a source of discharge), 
include in your Plan a prediction of the direction and total quantity of 
oil which could be discharged from the facility as a result of each type 
of major equipment failure.
    (ii) Bulk storage container secondary containment, in lieu of the 
requirements in Sec. Sec. 112.8(c)(2) and (c)(11) and 112.12(c)(2) and 
(c)(11). Construct all bulk storage container installations (except 
mobile refuelers and other non-transportation-related tank trucks), 
including mobile or portable oil storage containers, so that you provide 
a secondary means of containment for the entire capacity of the largest 
single container plus additional capacity to contain precipitation. 
Dikes, containment curbs, and pits are commonly employed for this 
purpose. You may also use an alternative system consisting of a drainage 
trench enclosure that must be arranged so that any discharge will 
terminate and be safely confined in a catchment basin or holding pond. 
Position or locate mobile or portable oil storage containers to prevent 
a discharge as described in Sec. 112.1(b).
    (iii) Overfill prevention, in lieu of the requirements in Sec. Sec. 
112.8(c)(8) and 112.12(c)(8). Ensure that each container is provided 
with a system or documented procedure to prevent overfills of the 
container, describe the system or procedure in the SPCC Plan and 
regularly test to ensure proper operation or efficacy.
    (b) Tier II Qualified Facilities.
    (1) Preparation and Self-Certification of Plan. If you are the owner 
or operator of a facility that meets the Tier II qualified facility 
criteria in Sec. 112.3(g)(2), you may choose to self-certify your Plan. 
You must certify in the Plan that:
    (i) You are familiar with the requirements of this part;
    (ii) You have visited and examined the facility;
    (iii) The Plan has been prepared in accordance with accepted and 
sound industry practices and standards, and with the requirements of 
this part;
    (iv) Procedures for required inspections and testing have been 
established;
    (v) You will fully implement the Plan;
    (vi) The facility meets the qualification criteria set forth under 
Sec. 112.3(g)(2);
    (vii) The Plan does not deviate from any requirement of this part as 
allowed by Sec. 112.7(a)(2) and 112.7(d), or include an exemption/
measures pursuant to Sec. 112.9(c)(6) for produced water containers and 
any associated piping and appurtenances downstream from the container, 
except as provided in paragraph (b)(3) of this section; and
    (viii) The Plan and individual(s) responsible for implementing the 
Plan have the full approval of management and the facility owner or 
operator has committed the necessary resources to fully implement the 
Plan.
    (2) Technical Amendments. If you self-certify your Plan pursuant to 
paragraph (b)(1) of this section, you must certify any technical 
amendments to your Plan in accordance with paragraph (b)(1) of this 
section when there is a change in the facility design, construction, 
operation, or maintenance that affects its potential for a discharge as 
described in Sec. 112.1(b), except:
    (i) If a Professional Engineer certified a portion of your Plan in 
accordance with paragraph (b)(4) of this section, and the technical 
amendment affects this portion of the Plan, you must have the amended 
provisions of your Plan certified by a Professional Engineer in 
accordance with paragraph (b)(4)(ii) of this section.

[[Page 36]]

    (ii) If the change is such that the facility no longer meets the 
Tier II qualifying criteria in Sec. 112.3(g)(2) because it exceeds 
10,000 U.S. gallons in aggregate aboveground storage capacity you must, 
within six months following the change, prepare and implement a Plan in 
accordance with the general Plan requirements in Sec. 112.7 and the 
applicable requirements in subparts B and C of this part, including 
having the Plan certified by a Professional Engineer as required under 
Sec. 112.3(d).
    (3) Applicable Requirements. Except as provided in this paragraph, 
your self-certified SPCC Plan must comply with Sec. 112.7 and the 
applicable requirements in subparts B and C of this part:
    (i) Environmental Equivalence. Your Plan may not include alternate 
methods which provide environmental equivalence pursuant to Sec. 
112.7(a)(2), unless each alternate method has been reviewed and 
certified in writing by a Professional Engineer, as provided in 
paragraph (b)(4) of this section.
    (ii) Impracticability. Your Plan may not include any determinations 
that secondary containment is impracticable and provisions in lieu of 
secondary containment pursuant to Sec. 112.7(d), unless each such 
determination and alternate measure has been reviewed and certified in 
writing by a Professional Engineer, as provided in paragraph (b)(4) of 
this section.
    (iii) Produced Water Containers. Your Plan may not include any 
produced water container exemptions or alternative procedures for 
skimming in lieu of sized secondary containment pursuant to Sec. 
112.9(c)(6), unless they have been reviewed and certified in writing by 
a Professional Engineer, as provided in paragraph (b)(4) of this 
section.
    (4) Professional Engineer Certification of Portions of a Qualified 
Facility's Self-Certified Plan.
    (i) As described in paragraph (b)(3) of this section, the facility 
owner or operator may not self-certify alternative measures allowed 
under Sec. 112.7(a)(2) or (d), that are included in the facility's 
Plan. Such measures must be reviewed and certified, in writing, by a 
licensed Professional Engineer. For each alternative measure allowed 
under Sec. 112.7(a)(2), the Plan must be accompanied by a written 
statement by a Professional Engineer that states the reason for 
nonconformance and describes the alternative method and how it provides 
equivalent environmental protection in accordance with Sec. 
112.7(a)(2). For each determination of impracticability of secondary 
containment pursuant to Sec. 112.7(d), the Plan must clearly explain 
why secondary containment measures are not practicable at this facility 
and provide the alternative measures required in Sec. 112.7(d) in lieu 
of secondary containment. By certifying each measure allowed under Sec. 
112.7(a)(2) and (d), the Professional Engineer attests:
    (A) That he is familiar with the requirements of this part;
    (B) That he or his agent has visited and examined the facility; and
    (C) That the alternative method of environmental equivalence in 
accordance with Sec. 112.7(a)(2) or the determination of 
impracticability and alternative measures in accordance with Sec. 
112.7(d) is consistent with good engineering practice, including 
consideration of applicable industry standards, and with the 
requirements of this part.
    (ii) As described in paragraph (b)(3) of this section, the facility 
owner or operator may not self-certify measures as described in Sec. 
112.9(c)(6) for produced water containers and any associated piping and 
appurtenances downstream from the container. Such measures must be 
reviewed and certified, in writing, by a licensed Professional Engineer, 
in accordance with Sec. 112.3(d)(1)(vi) or (vii), as applicable.
    (iii) The review and certification by the Professional Engineer 
under this paragraph is limited to the alternative method which achieves 
equivalent environmental protection pursuant to Sec. 112.7(a)(2); to 
the impracticability determination and measures in lieu of secondary 
containment pursuant to Sec. 112.7(d); or the measures pursuant to 
Sec. 112.9(c)(6) for produced water containers and any associated 
piping and appurtenances downstream from the container.



Sec. 112.7  General requirements for Spill Prevention, Control, and 

Countermeasure Plans.

    If you are the owner or operator of a facility subject to this part 
you must prepare a Plan in accordance with good engineering practices. 
The Plan must have the full approval of management at a level of 
authority to commit the necessary resources to fully implement the Plan. 
You must prepare the Plan in writing. If you do not follow the sequence 
specified in this section for the Plan, you must prepare an equivalent 
Plan acceptable to the Regional Administrator that meets all of the 
applicable requirements listed in this part, and you must supplement it 
with a section cross-referencing the location of requirements listed in 
this part and the equivalent requirements in the other prevention plan. 
If the Plan calls for additional facilities or procedures, methods, or 
equipment not yet fully operational, you must discuss these items in 
separate paragraphs, and must

[[Page 37]]

explain separately the details of installation and operational start-up. 
As detailed elsewhere in this section, you must also:
    (a)(1) Include a discussion of your facility's conformance with the 
requirements listed in this part.
    (2) Comply with all applicable requirements listed in this part. 
Except as provided in Sec. 112.6, your Plan may deviate from the 
requirements in paragraphs (g), (h)(2) and (3), and (i) of this section 
and the requirements in subparts B and C of this part, except the 
secondary containment requirements in paragraphs (c) and (h)(1) of this 
section, and Sec. Sec. 112.8(c)(2), 112.8(c)(11), 112.9(c)(2), 
112.10(c), 112.12(c)(2), and 112.12(c)(11), where applicable to a 
specific facility, if you provide equivalent environmental protection by 
some other means of spill prevention, control, or countermeasure. Where 
your Plan does not conform to the applicable requirements in paragraphs 
(g), (h)(2) and (3), and (i) of this section, or the requirements of 
subparts B and C of this part, except the secondary containment 
requirements in paragraph (c) and (h)(1) of this section, and Sec. Sec. 
112.8(c)(2), 112.8(c)(11), 112.9(c)(2), 112.10(c), 112.12(c)(2), and 
112.12(c)(11), you must state the reasons for nonconformance in your 
Plan and describe in detail alternate methods and how you will achieve 
equivalent environmental protection. If the Regional Administrator 
determines that the measures described in your Plan do not provide 
equivalent environmental protection, he may require that you amend your 
Plan, following the procedures in Sec. 112.4(d) and (e).
    (3) Describe in your Plan the physical layout of the facility and 
include a facility diagram, which must mark the location and contents of 
each container. The facility diagram must include completely buried 
tanks that are otherwise exempted from the requirements of this part 
under Sec. 112.1(d)(4). The facility diagram must also include all 
transfer stations and connecting pipes. You must also address in your 
Plan:
    (i) The type of oil in each container and its storage capacity;
    (ii) Discharge prevention measures including procedures for routine 
handling of products (loading, unloading, and facility transfers, etc.);
    (iii) Discharge or drainage controls such as secondary containment 
around containers and other structures, equipment, and procedures for 
the control of a discharge;
    (iv) Countermeasures for discharge discovery, response, and cleanup 
(both the facility's capability and those that might be required of a 
contractor);
    (v) Methods of disposal of recovered materials in accordance with 
applicable legal requirements; and
    (vi) Contact list and phone numbers for the facility response 
coordinator, National Response Center, cleanup contractors with whom you 
have an agreement for response, and all appropriate Federal, State, and 
local agencies who must be contacted in case of a discharge as described 
in Sec. 112.1(b).
    (4) Unless you have submitted a response plan under Sec. 112.20, 
provide information and procedures in your Plan to enable a person 
reporting a discharge as described in Sec. 112.1(b) to relate 
information on the exact address or location and phone number of the 
facility; the date and time of the discharge, the type of material 
discharged; estimates of the total quantity discharged; estimates of the 
quantity discharged as described in Sec. 112.1(b); the source of the 
discharge; a description of all affected media; the cause of the 
discharge; any damages or injuries caused by the discharge; actions 
being used to stop, remove, and mitigate the effects of the discharge; 
whether an evacuation may be needed; and, the names of individuals and/
or organizations who have also been contacted.
    (5) Unless you have submitted a response plan under Sec. 112.20, 
organize portions of the Plan describing procedures you will use when a 
discharge occurs in a way that will make them readily usable in an 
emergency, and include appropriate supporting material as appendices.
    (b) Where experience indicates a reasonable potential for equipment 
failure (such as loading or unloading equipment, tank overflow, rupture, 
or leakage, or any other equipment known to be a source of a discharge), 
include in your Plan a prediction of the direction,

[[Page 38]]

rate of flow, and total quantity of oil which could be discharged from 
the facility as a result of each type of major equipment failure.
    (c) Provide appropriate containment and/or diversionary structures 
or equipment to prevent a discharge as described in Sec. 112.1(b), 
except as provided in paragraph (k) of this section for qualified oil-
filled operational equipment. The entire containment system, including 
walls and floor, must be capable of containing oil and must be 
constructed so that any discharge from a primary containment system, 
such as a tank or pipe, will not escape the containment system before 
cleanup occurs. At a minimum, you must use one of the following 
prevention systems or its equivalent:
    (1) For onshore facilities:
    (i) Dikes, berms, or retaining walls sufficiently impervious to 
contain oil;
    (ii) Curbing;
    (iii) Culverting, gutters, or other drainage systems;
    (iv) Weirs, booms, or other barriers;
    (v) Spill diversion ponds;
    (vi) Retention ponds; or
    (vii) Sorbent materials.
    (2) For offshore facilities:
    (i) Curbing or drip pans; or
    (ii) Sumps and collection systems.
    (d) Provided your Plan is certified by a licensed Professional 
Engineer under Sec. 112.3(d), or, in the case of a qualified facility 
that meets the criteria in Sec. 112.3(g), the relevant sections of your 
Plan are certified by a licensed Professional Engineer under Sec. 
112.6(d), if you determine that the installation of any of the 
structures or pieces of equipment listed in paragraphs (c) and (h)(1) of 
this section, and Sec. Sec. 112.8(c)(2), 112.8(c)(11), 112.9(c)(2), 
112.10(c), 112.12(c)(2), and 112.12(c)(11) to prevent a discharge as 
described in Sec. 112.1(b) from any onshore or offshore facility is not 
practicable, you must clearly explain in your Plan why such measures are 
not practicable; for bulk storage containers, conduct both periodic 
integrity testing of the containers and periodic integrity and leak 
testing of the valves and piping; and, unless you have submitted a 
response plan under Sec. 112.20, provide in your Plan the following:
    (1) An oil spill contingency plan following the provisions of part 
109 of this chapter.
    (2) A written commitment of manpower, equipment, and materials 
required to expeditiously control and remove any quantity of oil 
discharged that may be harmful.
    (e) Inspections, tests, and records. Conduct inspections and tests 
required by this part in accordance with written procedures that you or 
the certifying engineer develop for the facility. You must keep these 
written procedures and a record of the inspections and tests, signed by 
the appropriate supervisor or inspector, with the SPCC Plan for a period 
of three years. Records of inspections and tests kept under usual and 
customary business practices will suffice for purposes of this 
paragraph.
    (f) Personnel, training, and discharge prevention procedures. (1) At 
a minimum, train your oil-handling personnel in the operation and 
maintenance of equipment to prevent discharges; discharge procedure 
protocols; applicable pollution control laws, rules, and regulations; 
general facility operations; and, the contents of the facility SPCC 
Plan.
    (2) Designate a person at each applicable facility who is 
accountable for discharge prevention and who reports to facility 
management.
    (3) Schedule and conduct discharge prevention briefings for your 
oil-handling personnel at least once a year to assure adequate 
understanding of the SPCC Plan for that facility. Such briefings must 
highlight and describe known discharges as described in Sec. 112.1(b) 
or failures, malfunctioning components, and any recently developed 
precautionary measures.
    (g) Security (excluding oil production facilities). (1) Fully fence 
each facility handling, processing, or storing oil, and lock and/or 
guard entrance gates when the facility is not in production or is 
unattended.
    (2) Ensure that the master flow and drain valves and any other 
valves permitting direct outward flow of the container's contents to the 
surface have adequate security measures so that they remain in the 
closed position when in non-operating or non-standby status.

[[Page 39]]

    (3) Lock the starter control on each oil pump in the ``off'' 
position and locate it at a site accessible only to authorized personnel 
when the pump is in a non-operating or non-standby status.
    (4) Securely cap or blank-flange the loading/unloading connections 
of oil pipelines or facility piping when not in service or when in 
standby service for an extended time. This security practice also 
applies to piping that is emptied of liquid content either by draining 
or by inert gas pressure.
    (5) Provide facility lighting commensurate with the type and 
location of the facility that will assist in the:
    (i) Discovery of discharges occurring during hours of darkness, both 
by operating personnel, if present, and by non-operating personnel (the 
general public, local police, etc.); and
    (ii) Prevention of discharges occurring through acts of vandalism.
    (h) Facility tank car and tank truck loading/unloading rack 
(excluding offshore facilities). (1) Where loading/unloading area 
drainage does not flow into a catchment basin or treatment facility 
designed to handle discharges, use a quick drainage system for tank car 
or tank truck loading and unloading areas. You must design any 
containment system to hold at least the maximum capacity of any single 
compartment of a tank car or tank truck loaded or unloaded at the 
facility.
    (2) Provide an interlocked warning light or physical barrier system, 
warning signs, wheel chocks, or vehicle break interlock system in 
loading/unloading areas to prevent vehicles from departing before 
complete disconnection of flexible or fixed oil transfer lines.
    (3) Prior to filling and departure of any tank car or tank truck, 
closely inspect for discharges the lowermost drain and all outlets of 
such vehicles, and if necessary, ensure that they are tightened, 
adjusted, or replaced to prevent liquid discharge while in transit.
    (i) If a field-constructed aboveground container undergoes a repair, 
alteration, reconstruction, or a change in service that might affect the 
risk of a discharge or failure due to brittle fracture or other 
catastrophe, or has discharged oil or failed due to brittle fracture 
failure or other catastrophe, evaluate the container for risk of 
discharge or failure due to brittle fracture or other catastrophe, and 
as necessary, take appropriate action.
    (j) In addition to the minimal prevention standards listed under 
this section, include in your Plan a complete discussion of conformance 
with the applicable requirements and other effective discharge 
prevention and containment procedures listed in this part or any 
applicable more stringent State rules, regulations, and guidelines.
    (k) Qualified Oil-filled Operational Equipment. The owner or 
operator of a facility with oil-filled operational equipment that meets 
the qualification criteria in paragraph (k)(1) of this sub-section may 
choose to implement for this qualified oil-filled operational equipment 
the alternate requirements as described in paragraph (k)(2) of this sub-
section in lieu of general secondary containment required in paragraph 
(c) of this section.
    (1) Qualification Criteria--Reportable Discharge History: The owner 
or operator of a facility that has had no single discharge as described 
in Sec. 112.1(b) from any oil-filled operational equipment exceeding 
1,000 U.S. gallons or no two discharges as described in Sec. 112.1(b) 
from any oil-filled operational equipment each exceeding 42 U.S. gallons 
within any twelve month period in the three years prior to the SPCC Plan 
certification date, or since becoming subject to this part if the 
facility has been in operation for less than three years (other than oil 
discharges as described in Sec. 112.1(b) that are the result of natural 
disasters, acts of war or terrorism); and
    (2) Alternative Requirements to General Secondary Containment. If 
secondary containment is not provided for qualified oil-filled 
operational equipment pursuant to paragraph (c) of this section, the 
owner or operator of a facility with qualified oil-filled operational 
equipment must:
    (i) Establish and document the facility procedures for inspections 
or a monitoring program to detect equipment failure and/or a discharge; 
and
    (ii) Unless you have submitted a response plan under Sec. 112.20, 
provide in your Plan the following:

[[Page 40]]

    (A) An oil spill contingency plan following the provisions of part 
109 of this chapter.
    (B) A written commitment of manpower, equipment, and materials 
required to expeditiously control and remove any quantity of oil 
discharged that may be harmful.

[67 FR 47140, July 17, 2002, as amended at 71 FR 77292, Dec. 26, 2006]

    Effective Date Note: At 74 FR 74303, Dec. 5, 2008, Sec. 112.7 was 
amended by revising the first sentence in paragraph (a)(2), paragraphs 
(a)(3) introductory text and (a)(3)(i), (c) introductory text, (c)(1), 
(g), the heading to paragraph (h), and paragraphs (h)(1) and (h)(2), 
effective Feb. 3, 2009. At 74 FR 5900, Feb. 3, 2009, these amendments 
were delayed. At 74 FR 14736, Apr. 1, 2009, these amendments were 
further delayed to January 14, 2010. For the convenience of the user, 
the revised text is set forth as follows:



Sec. 112.7  General requirements for Spill Prevention, Control, and 

Countermeasure Plans.

                                * * * * *

    (a) * * *
    (2) Comply with all applicable requirements listed in this part. 
Except as provided in Sec. 112.6, your Plan may deviate from the 
requirements in paragraphs (g), (h)(2) and (3), and (i) of this section 
and the requirements in subparts B and C of this part, except the 
secondary containment requirements in paragraphs (c) and (h)(1) of this 
section, and Sec. Sec. 112.8(c)(2), 112.8(c)(11), 112.9(c)(2), 
112.9(d)(3), 112.10(c), 112.12(c)(2), and 112.12(c)(11), where 
applicable to a specific facility, if you provide equivalent 
environmental protection by some other means of spill prevention, 
control, or countermeasure. * * *

                                * * * * *

    (3) Describe in your Plan the physical layout of the facility and 
include a facility diagram, which must mark the location and contents of 
each fixed oil storage container and the storage area where mobile or 
portable containers are located. The facility diagram must identify the 
location of and mark as ``exempt'' underground tanks that are otherwise 
exempted from the requirements of this part under Sec. 112.1(d)(4), and 
produced water containers and any associated piping and appurtenances 
downstream from the container, that are otherwise exempted from the 
requirements of this part under Sec. 112.1(d)(12). The facility diagram 
must also include all transfer stations and connecting pipes, including 
intra-facility gathering lines that are otherwise exempted from the 
requirements of this part under Sec. 112.1(d)(11). You must also 
address in your Plan:
    (i) The type of oil in each fixed container and its storage 
capacity. For mobile or portable containers, either provide the type of 
oil and storage capacity for each container or provide an estimate of 
the potential number of mobile or portable containers, the types of oil, 
and anticipated storage capacities;

                                * * * * *

    (c) Provide appropriate containment and/or diversionary structures 
or equipment to prevent a discharge as described in Sec. 112.1(b), 
except as provided in paragraph (k) of this section for qualified oil-
filled operational equipment, and except as provided in Sec. 
112.9(d)(3) for flowlines and intra-facility gathering lines at an oil 
production facility. The entire containment system, including walls and 
floor, must be capable of containing oil and must be constructed so that 
any discharge from a primary containment system, such as a tank, will 
not escape the containment system before cleanup occurs. In determining 
the method, design, and capacity for secondary containment, you need 
only to address the typical failure mode, and the most likely quantity 
of oil that would be discharged. Secondary containment may be either 
active or passive in design. At a minimum, you must use one of the 
following prevention systems or its equivalent:
    (1) For onshore facilities:
    (i) Dikes, berms, or retaining walls sufficiently impervious to 
contain oil;
    (ii) Curbing or drip pans;
    (iii) Sumps and collection systems;
    (iv) Culverting, gutters, or other drainage systems;
    (v) Weirs, booms, or other barriers;
    (vi) Spill diversion ponds;
    (vii) Retention ponds; or
    (viii) Sorbent materials.

                                * * * * *

    (g) Security (excluding oil production facilities). Describe in your 
Plan how you secure and control access to the oil handling, processing 
and storage areas; secure master flow and drain valves; prevent 
unauthorized access to starter controls on oil pumps; secure out-of-
service and loading/unloading connections of oil pipelines; and address 
the appropriateness of security lighting to both prevent acts of 
vandalism and assist in the discovery of oil discharges.
    (h) Facility tank car and tank truck loading/unloading rack 
(excluding offshore facilities, farms, and oil production facilities).
    (1) Where loading/unloading rack drainage does not flow into a 
catchment basin or treatment facility designed to handle discharges, use 
a quick drainage system for tank car or tank truck loading/unloading

[[Page 41]]

racks. You must design any containment system to hold at least the 
maximum capacity of any single compartment of a tank car or tank truck 
loaded or unloaded at the facility.
    (2) Provide an interlocked warning light or physical barrier system, 
warning signs, wheel chocks or vehicle brake interlock system in the 
area adjacent to a loading/unloading rack, to prevent vehicles from 
departing before complete disconnection of flexible or fixed oil 
transfer lines.

                                * * * * *



Subpart B_Requirements for Petroleum Oils and Non-Petroleum Oils, Except 

 Animal Fats and Oils and Greases, and Fish and Marine Mammal Oils; and 

  Vegetable Oils (Including Oils from Seeds, Nuts, Fruits, and Kernels)

    Source: 67 FR 47146, July 17, 2002, unless otherwise noted.



Sec. 112.8  Spill Prevention, Control, and Countermeasure Plan requirements 

for onshore facilities (excluding production facilities).

    If you are the owner or operator of an onshore facility (excluding a 
production facility), you must:
    (a) Meet the general requirements for the Plan listed under Sec. 
112.7, and the specific discharge prevention and containment procedures 
listed in this section.
    (b) Facility drainage. (1) Restrain drainage from diked storage 
areas by valves to prevent a discharge into the drainage system or 
facility effluent treatment system, except where facility systems are 
designed to control such discharge. You may empty diked areas by pumps 
or ejectors; however, you must manually activate these pumps or ejectors 
and must inspect the condition of the accumulation before starting, to 
ensure no oil will be discharged.
    (2) Use valves of manual, open-and-closed design, for the drainage 
of diked areas. You may not use flapper-type drain valves to drain diked 
areas. If your facility drainage drains directly into a watercourse and 
not into an on-site wastewater treatment plant, you must inspect and may 
drain uncontaminated retained stormwater, as provided in paragraphs 
(c)(3)(ii), (iii), and (iv) of this section.
    (3) Design facility drainage systems from undiked areas with a 
potential for a discharge (such as where piping is located outside 
containment walls or where tank truck discharges may occur outside the 
loading area) to flow into ponds, lagoons, or catchment basins designed 
to retain oil or return it to the facility. You must not locate 
catchment basins in areas subject to periodic flooding.
    (4) If facility drainage is not engineered as in paragraph (b)(3) of 
this section, equip the final discharge of all ditches inside the 
facility with a diversion system that would, in the event of an 
uncontrolled discharge, retain oil in the facility.
    (5) Where drainage waters are treated in more than one treatment 
unit and such treatment is continuous, and pump transfer is needed, 
provide two ``lift'' pumps and permanently install at least one of the 
pumps. Whatever techniques you use, you must engineer facility drainage 
systems to prevent a discharge as described in Sec. 112.1(b) in case 
there is an equipment failure or human error at the facility.
    (c) Bulk storage containers. (1) Not use a container for the storage 
of oil unless its material and construction are compatible with the 
material stored and conditions of storage such as pressure and 
temperature.
    (2) Construct all bulk storage tank installations (except mobile 
refuelers) so that you provide a secondary means of containment for the 
entire capacity of the largest single container and sufficient freeboard 
to contain precipitation. You must ensure that diked areas are 
sufficiently impervious to contain discharged oil. Dikes, containment 
curbs, and pits are commonly employed for this purpose. You may also use 
an alternative system consisting of a drainage trench enclosure that 
must be arranged so that any discharge will terminate and be safely 
confined in a facility catchment basin or holding pond.
    (3) Not allow drainage of uncontaminated rainwater from the

[[Page 42]]

diked area into a storm drain or discharge of an effluent into an open 
watercourse, lake, or pond, bypassing the facility treatment system 
unless you:
    (i) Normally keep the bypass valve sealed closed.
    (ii) Inspect the retained rainwater to ensure that its presence will 
not cause a discharge as described in Sec. 112.1(b).
    (iii) Open the bypass valve and reseal it following drainage under 
responsible supervision; and
    (iv) Keep adequate records of such events, for example, any records 
required under permits issued in accordance with Sec. Sec. 122.41(j)(2) 
and 122.41(m)(3) of this chapter.
    (4) Protect any completely buried metallic storage tank installed on 
or after January 10, 1974 from corrosion by coatings or cathodic 
protection compatible with local soil conditions. You must regularly 
leak test such completely buried metallic storage tanks.
    (5) Not use partially buried or bunkered metallic tanks for the 
storage of oil, unless you protect the buried section of the tank from 
corrosion. You must protect partially buried and bunkered tanks from 
corrosion by coatings or cathodic protection compatible with local soil 
conditions.
    (6) Test each aboveground container for integrity on a regular 
schedule, and whenever you make material repairs. The frequency of and 
type of testing must take into account container size and design (such 
as floating roof, skid-mounted, elevated, or partially buried). You must 
combine visual inspection with another testing technique such as 
hydrostatic testing, radiographic testing, ultrasonic testing, acoustic 
emissions testing, or another system of non-destructive shell testing. 
You must keep comparison records and you must also inspect the 
container's supports and foundations. In addition, you must frequently 
inspect the outside of the container for signs of deterioration, 
discharges, or accumulation of oil inside diked areas. Records of 
inspections and tests kept under usual and customary business practices 
will suffice for purposes of this paragraph.
    (7) Control leakage through defective internal heating coils by 
monitoring the steam return and exhaust lines for contamination from 
internal heating coils that discharge into an open watercourse, or pass 
the steam return or exhaust lines through a settling tank, skimmer, or 
other separation or retention system.
    (8) Engineer or update each container installation in accordance 
with good engineering practice to avoid discharges. You must provide at 
least one of the following devices:
    (i) High liquid level alarms with an audible or visual signal at a 
constantly attended operation or surveillance station. In smaller 
facilities an audible air vent may suffice.
    (ii) High liquid level pump cutoff devices set to stop flow at a 
predetermined container content level.
    (iii) Direct audible or code signal communication between the 
container gauger and the pumping station.
    (iv) A fast response system for determining the liquid level of each 
bulk storage container such as digital computers, telepulse, or direct 
vision gauges. If you use this alternative, a person must be present to 
monitor gauges and the overall filling of bulk storage containers.
    (v) You must regularly test liquid level sensing devices to ensure 
proper operation.
    (9) Observe effluent treatment facilities frequently enough to 
detect possible system upsets that could cause a discharge as described 
in Sec. 112.1(b).
    (10) Promptly correct visible discharges which result in a loss of 
oil from the container, including but not limited to seams, gaskets, 
piping, pumps, valves, rivets, and bolts. You must promptly remove any 
accumulations of oil in diked areas.
    (11) Position or locate mobile or portable oil storage containers to 
prevent a discharge as described in Sec. 112.1(b). Except for mobile 
refuelers, you must furnish a secondary means of containment, such as a 
dike or catchment basin, sufficient to contain the capacity of the 
largest single compartment or container with sufficient freeboard to 
contain precipitation.
    (d) Facility transfer operations, pumping, and facility process. (1) 
Provide buried piping that is installed or replaced on or after August 
16, 2002, with a protective wrapping and coating. You

[[Page 43]]

must also cathodically protect such buried piping installations or 
otherwise satisfy the corrosion protection standards for piping in part 
280 of this chapter or a State program approved under part 281 of this 
chapter. If a section of buried line is exposed for any reason, you must 
carefully inspect it for deterioration. If you find corrosion damage, 
you must undertake additional examination and corrective action as 
indicated by the magnitude of the damage.
    (2) Cap or blank-flange the terminal connection at the transfer 
point and mark it as to origin when piping is not in service or is in 
standby service for an extended time.
    (3) Properly design pipe supports to minimize abrasion and corrosion 
and allow for expansion and contraction.
    (4) Regularly inspect all aboveground valves, piping, and 
appurtenances. During the inspection you must assess the general 
condition of items, such as flange joints, expansion joints, valve 
glands and bodies, catch pans, pipeline supports, locking of valves, and 
metal surfaces. You must also conduct integrity and leak testing of 
buried piping at the time of installation, modification, construction, 
relocation, or replacement.
    (5) Warn all vehicles entering the facility to be sure that no 
vehicle will endanger aboveground piping or other oil transfer 
operations.

[67 FR 47146, July 17, 2002, as amended at 71 FR 77293, Dec. 26, 2006]

    Effective Date Note: At 74 FR 74304, Dec. 5, 2008, Sec. 112.8 was 
amended by revising the first sentence in paragraph (c)(2) and 
paragraphs (c)(6) and (c)(11), effective Feb. 3, 2009. At 74 FR 5900, 
Feb. 3, 2009, these amendments were delayed. At 74 FR 14736, Apr. 1, 
2009, these amendments were further delayed to January 14, 2010. For the 
convenience of the user, the revised text is set forth as follows:



Sec. 112.8  Spill Prevention, Control, and Countermeasure Plan 

requirements for onshore facilities (excluding production facilities).

                                * * * * *

    (c) * * *
    (2) Construct all bulk storage tank installations (except mobile 
refuelers and other non-transportation-related tank trucks) so that you 
provide a secondary means of containment for the entire capacity of the 
largest single container and sufficient freeboard to contain 
precipitation.* * *

                                * * * * *

    (6) Test or inspect each aboveground container for integrity on a 
regular schedule and whenever you make material repairs. You must 
determine, in accordance with industry standards, the appropriate 
qualifications for personnel performing tests and inspections, the 
frequency and type of testing and inspections, which take into account 
container size, configuration, and design (such as containers that are: 
shop-built, field-erected, skid-mounted, elevated, equipped with a 
liner, double-walled, or partially buried). Examples of these integrity 
tests include, but are not limited to: visual inspection, hydrostatic 
testing, radiographic testing, ultrasonic testing, acoustic emissions 
testing, or other systems of non-destructive testing. You must keep 
comparison records and you must also inspect the container's supports 
and foundations. In addition, you must frequently inspect the outside of 
the container for signs of deterioration, discharges, or accumulation of 
oil inside diked areas. Records of inspections and tests kept under 
usual and customary business practices satisfy the recordkeeping 
requirements of this paragraph.

                                * * * * *

    (11) Position or locate mobile or portable oil storage containers to 
prevent a discharge as described in Sec. 112.1(b). Except for mobile 
refuelers and other non-transportation-related tank trucks, you must 
furnish a secondary means of containment, such as a dike or catchment 
basin, sufficient to contain the capacity of the largest single 
compartment or container with sufficient freeboard to contain 
precipitation.

                                * * * * *



Sec. 112.9  Spill Prevention, Control, and Countermeasure Plan requirements 

for onshore oil production facilities.

    If you are the owner or operator of an onshore production facility, 
you must:
    (a) Meet the general requirements for the Plan listed under Sec. 
112.7, and the specific discharge prevention and containment procedures 
listed under this section.
    (b) Oil production facility drainage. (1) At tank batteries and 
separation and treating areas where there is a reasonable possibility of 
a discharge as described in Sec. 112.1(b), close and seal at all times 
drains of dikes or drains of

[[Page 44]]

equivalent measures required under Sec. 112.7(c)(1), except when 
draining uncontaminated rainwater. Prior to drainage, you must inspect 
the diked area and take action as provided in Sec. 112.8(c)(3)(ii), 
(iii), and (iv). You must remove accumulated oil on the rainwater and 
return it to storage or dispose of it in accordance with legally 
approved methods.
    (2) Inspect at regularly scheduled intervals field drainage systems 
(such as drainage ditches or road ditches), and oil traps, sumps, or 
skimmers, for an accumulation of oil that may have resulted from any 
small discharge. You must promptly remove any accumulations of oil.
    (c) Oil production facility bulk storage containers. (1) Not use a 
container for the storage of oil unless its material and construction 
are compatible with the material stored and the conditions of storage.
    (2) Provide all tank battery, separation, and treating facility 
installations with a secondary means of containment for the entire 
capacity of the largest single container and sufficient freeboard to 
contain precipitation. You must safely confine drainage from undiked 
areas in a catchment basin or holding pond.
    (3) Periodically and upon a regular schedule visually inspect each 
container of oil for deterioration and maintenance needs, including the 
foundation and support of each container that is on or above the surface 
of the ground.
    (4) Engineer or update new and old tank battery installations in 
accordance with good engineering practice to prevent discharges. You 
must provide at least one of the following:
    (i) Container capacity adequate to assure that a container will not 
overfill if a pumper/gauger is delayed in making regularly scheduled 
rounds.
    (ii) Overflow equalizing lines between containers so that a full 
container can overflow to an adjacent container.
    (iii) Vacuum protection adequate to prevent container collapse 
during a pipeline run or other transfer of oil from the container.
    (iv) High level sensors to generate and transmit an alarm signal to 
the computer where the facility is subject to a computer production 
control system.
    (d) Facility transfer operations, oil production facility. (1) 
Periodically and upon a regular schedule inspect all aboveground valves 
and piping associated with transfer operations for the general condition 
of flange joints, valve glands and bodies, drip pans, pipe supports, 
pumping well polish rod stuffing boxes, bleeder and gauge valves, and 
other such items.
    (2) Inspect saltwater (oil field brine) disposal facilities often, 
particularly following a sudden change in atmospheric temperature, to 
detect possible system upsets capable of causing a discharge.
    (3) Have a program of flowline maintenance to prevent discharges 
from each flowline.

    Effective Date Note: At 74 FR 74304, Dec. 5, 2008, Sec. 112.9 was 
amended by revising the section heading, the introductory text, 
paragraphs (c)(2), (c)(3), and (d)(3), and adding paragraphs (c)(5), 
(c)(6), and (d)(4), effective Feb. 3, 2009. At 74 FR 5900, Feb. 3, 2009, 
these amendments were delayed. At 74 FR 14736, Apr. 1, 2009, these 
amendments were further delayed to January 14, 2010. For the convenience 
of the user, the added and revised text is set forth as follows:



Sec. 112.9  Spill Prevention, Control, and Countermeasure Plan 

Requirements for onshore oil production facilities (excluding drilling and 

workover facilities).

    If you are the owner or operator of an onshore oil production 
facility (excluding a drilling or workover facility), you must:

                                * * * * *

    (c) * * *
    (2) Except as described in paragraph (c)(5) of this section for 
flow-through process vessels and paragraph (c)(6) of this section for 
produced water containers and any associated piping and appurtenances 
downstream from the container, construct all tank battery, separation, 
and treating facility installations, so that you provide a secondary 
means of containment for the entire capacity of the largest single 
container and sufficient freeboard to contain precipitation. You must 
safely confine drainage from undiked areas in a catchment basin or 
holding pond.
    (3) Except as described in paragraph (c)(5) of this section for 
flow-through process vessels and paragraph (c)(6) of this section for 
produced water containers and any associated piping and appurtenances 
downstream from the container, periodically and upon a

[[Page 45]]

regular schedule visually inspect each container of oil for 
deterioration and maintenance needs, including the foundation and 
support of each container that is on or above the surface of the ground.

                                * * * * *

    (5) Flow-through process vessels. The owner or operator of a 
facility with flow-through process vessels may choose to implement the 
alternate requirements as described below in lieu of sized secondary 
containment required in paragraphs (c)(2) and (c)(3) of this section.
    (i) Periodically and on a regular schedule visually inspect and/or 
test flow-through process vessels and associated components (such as 
dump valves) for leaks, corrosion, or other conditions that could lead 
to a discharge as described in Sec. 112.1(b).
    (ii) Take corrective action or make repairs to flow-through process 
vessels and any associated components as indicated by regularly 
scheduled visual inspections, tests, or evidence of an oil discharge.
    (iii) Promptly remove or initiate actions to stabilize and remediate 
any accumulations of oil discharges associated with flow-through process 
vessels.
    (iv) If your facility discharges more than 1,000 U.S. gallons of oil 
in a single discharge as described in Sec. 112.1(b), or discharges more 
than 42 U.S. gallons of oil in each of two discharges as described in 
Sec. 112.1(b) within any twelve month period, from flow-through process 
vessels (excluding discharges that are the result of natural disasters, 
acts of war, or terrorism) then you must, within six months from the 
time the facility becomes subject to this paragraph, ensure that all 
flow-through process vessels subject to this subpart comply with Sec. 
112.9(c)(2) and (c)(3).
    (6) Produced water containers.
    (i) A produced water container, and any associated piping and 
appurtenances downstream from the container, are exempt from the 
requirements of this part if a Professional Engineer certifies in 
accordance with Sec. 112.3(d)(1)(vi) that no discharge from the 
produced water container, including a complete loss of the capacity of 
the container, could cause a discharge in quantities that may be 
harmful, as described in part 110 of this chapter. This determination 
for the container must be made in accordance with Sec. 112.1(d)(1)(i).
    (A) The SPCC Plan must include a description of the produced water 
characteristics in the container, procedures, or maintenance required to 
meet the standards of Part 110 and the owner or operator's annual 
verifications prepared in accordance with Sec. 112.5.
    (B) If an exempt produced water container as described in paragraph 
(c)(6)(i) of this section experiences a discharge as described in Sec. 
112.1(b), then such container, piping, and appurtenances are ineligible 
for this exemption and you must comply with all provisions under this 
part applicable to the container, including Sec. 112.9(c)(2) and (c)(3) 
within six months of the date of the discharge.
    (ii) For each container not exempted as described in paragraph 
(c)(6)(i) of this section, comply with Sec. 112.9(c)(1) and (c)(4); and 
Sec. 112.9(c)(2) and (c)(3), or:
    (A) Implement, on a regular schedule, a procedure for each produced 
water container that is designed to separate the free-phase oil that 
accumulates on the surface of the produced water. Include in the Plan a 
description of the procedures, frequency, amount of free-phase oil 
expected to be maintained inside the container, and a Professional 
Engineer certification in accordance with Sec. 112.3(d)(1)(vii). 
Maintain records of such events in accordance with Sec. 112.7(e). 
Records kept under usual and customary business practices will suffice 
for purposes of this paragraph. If this procedure is not implemented as 
described in the Plan or no records are maintained, then you must comply 
with Sec. 112.9(c)(2) and (c)(3).
    (B) On a regular schedule, visually inspect and/or test the produced 
water container and associated piping for leaks, corrosion, or other 
conditions that could lead to a discharge as described in Sec. 112.1(b) 
in accordance with good engineering practice.
    (C) Take corrective action or make repairs to the produced water 
container and any associated piping as indicated by regularly scheduled 
visual inspections, tests, or evidence of an oil discharge.
    (D) Promptly remove or initiate actions to stabilize and remediate 
any accumulations of oil discharges associated with the produced water 
container.
    (E) If your facility discharges more than 1,000 U.S. gallons of oil 
in a single discharge as described in Sec. 112.1(b), or discharges more 
than 42 U.S. gallons of oil in each of two discharges as described in 
Sec. 112.1(b) within any twelve month period from a produced water 
container subject to this subpart (excluding discharges that are the 
result of natural disasters, acts of war, or terrorism) then you must, 
within six months from the time the facility becomes subject to this 
paragraph, ensure that all produced water containers subject to this 
subpart comply with Sec. 112.9(c)(2) and (c)(3).
    (d) * * *
    (3) For flowlines and intra-facility gathering lines that are not 
provided with secondary containment in accordance with Sec. 112.7(c), 
unless you have submitted a response plan under Sec. 112.20, provide in 
your Plan the following:
    (i) An oil spill contingency plan following the provisions of part 
109 of this chapter.

[[Page 46]]

    (ii) A written commitment of manpower, equipment, and materials 
required to expeditiously control and remove any quantity of oil 
discharged that might be harmful.
    (4) Prepare and implement a written program of flowline/intra-
facility gathering line maintenance. The maintenance program must 
address your procedures to:
    (i) Ensure that flowlines and intra-facility gathering lines and 
associated valves and equipment are compatible with the type of 
production fluids, their potential corrosivity, volume, and pressure, 
and other conditions expected in the operational environment.
    (ii) Visually inspect and/or test flowlines and intra-facility 
gathering lines and associated appurtenances on a periodic and regular 
schedule for leaks, oil discharges, corrosion, or other conditions that 
could lead to a discharge as described in Sec. 112.1(b). For flowlines 
and intra-facility gathering lines that are not provided with secondary 
containment in accordance with Sec. 112.7(c), the frequency and type of 
testing must allow for the implementation of a contingency plan as 
described under part 109 of this chapter.
    (iii) Take corrective action or make repairs to any flowlines and 
intra-facility gathering lines and associated appurtenances as indicated 
by regularly scheduled visual inspections, tests, or evidence of a 
discharge.
    (iv) Promptly remove or initiate actions to stabilize and remediate 
any accumulations of oil discharges associated with flowlines, intra-
facility gathering lines, and associated appurtenances.



Sec. 112.10  Spill Prevention, Control, and Countermeasure Plan requirements 

for onshore oil drilling and workover facilities.

    If you are the owner or operator of an onshore oil drilling and 
workover facility, you must:
    (a) Meet the general requirements listed under Sec. 112.7, and also 
meet the specific discharge prevention and containment procedures listed 
under this section.
    (b) Position or locate mobile drilling or workover equipment so as 
to prevent a discharge as described in Sec. 112.1(b).
    (c) Provide catchment basins or diversion structures to intercept 
and contain discharges of fuel, crude oil, or oily drilling fluids.
    (d) Install a blowout prevention (BOP) assembly and well control 
system before drilling below any casing string or during workover 
operations. The BOP assembly and well control system must be capable of 
controlling any well-head pressure that may be encountered while that 
BOP assembly and well control system are on the well.



Sec. 112.11  Spill Prevention, Control, and Countermeasure Plan requirements 

for offshore oil drilling, production, or workover facilities.

    If you are the owner or operator of an offshore oil drilling, 
production, or workover facility, you must:
    (a) Meet the general requirements listed under Sec. 112.7, and also 
meet the specific discharge prevention and containment procedures listed 
under this section.
    (b) Use oil drainage collection equipment to prevent and control 
small oil discharges around pumps, glands, valves, flanges, expansion 
joints, hoses, drain lines, separators, treaters, tanks, and associated 
equipment. You must control and direct facility drains toward a central 
collection sump to prevent the facility from having a discharge as 
described in Sec. 112.1(b). Where drains and sumps are not practicable, 
you must remove oil contained in collection equipment as often as 
necessary to prevent overflow.
    (c) For facilities employing a sump system, provide adequately sized 
sump and drains and make available a spare pump to remove liquid from 
the sump and assure that oil does not escape. You must employ a 
regularly scheduled preventive maintenance inspection and testing 
program to assure reliable operation of the liquid removal system and 
pump start-up device. Redundant automatic sump pumps and control devices 
may be required on some installations.
    (d) At facilities with areas where separators and treaters are 
equipped with dump valves which predominantly fail in the closed 
position and where pollution risk is high, specially equip the facility 
to prevent the discharge of oil. You must prevent the discharge of oil 
by:
    (1) Extending the flare line to a diked area if the separator is 
near shore;
    (2) Equipping the separator with a high liquid level sensor that 
will automatically shut in wells producing to the separator; or

[[Page 47]]

    (3) Installing parallel redundant dump valves.
    (e) Equip atmospheric storage or surge containers with high liquid 
level sensing devices that activate an alarm or control the flow, or 
otherwise prevent discharges.
    (f) Equip pressure containers with high and low pressure sensing 
devices that activate an alarm or control the flow.
    (g) Equip containers with suitable corrosion protection.
    (h) Prepare and maintain at the facility a written procedure within 
the Plan for inspecting and testing pollution prevention equipment and 
systems.
    (i) Conduct testing and inspection of the pollution prevention 
equipment and systems at the facility on a scheduled periodic basis, 
commensurate with the complexity, conditions, and circumstances of the 
facility and any other appropriate regulations. You must use simulated 
discharges for testing and inspecting human and equipment pollution 
control and countermeasure systems.
    (j) Describe in detailed records surface and subsurface well shut-in 
valves and devices in use at the facility for each well sufficiently to 
determine their method of activation or control, such as pressure 
differential, change in fluid or flow conditions, combination of 
pressure and flow, manual or remote control mechanisms.
    (k) Install a BOP assembly and well control system during workover 
operations and before drilling below any casing string. The BOP assembly 
and well control system must be capable of controlling any well-head 
pressure that may be encountered while the BOP assembly and well control 
system are on the well.
    (l) Equip all manifolds (headers) with check valves on individual 
flowlines.
    (m) Equip the flowline with a high pressure sensing device and shut-
in valve at the wellhead if the shut-in well pressure is greater than 
the working pressure of the flowline and manifold valves up to and 
including the header valves. Alternatively you may provide a pressure 
relief system for flowlines.
    (n) Protect all piping appurtenant to the facility from corrosion, 
such as with protective coatings or cathodic protection.
    (o) Adequately protect sub-marine piping appurtenant to the facility 
against environmental stresses and other activities such as fishing 
operations.
    (p) Maintain sub-marine piping appurtenant to the facility in good 
operating condition at all times. You must periodically and according to 
a schedule inspect or test such piping for failures. You must document 
and keep a record of such inspections or tests at the facility.



 Subpart C_Requirements for Animal Fats and Oils and Greases, and Fish 

  and Marine Mammal Oils; and for Vegetable Oils, including Oils from 

                    Seeds, Nuts, Fruits, and Kernels.

    Source: 67 FR 57149, July 17, 2002, unless otherwise noted.



Sec. 112.12  Spill Prevention, Control, and Countermeasure Plan requirements.

    If you are the owner or operator of an onshore facility (excluding a 
production facility), you must:
    (a) Meet the general requirements for the Plan listed under Sec. 
112.7, and the specific discharge prevention and containment procedures 
listed in this section.
    (b) Facility drainage. (1) Restrain drainage from diked storage 
areas by valves to prevent a discharge into the drainage system or 
facility effluent treatment system, except where facility systems are 
designed to control such discharge. You may empty diked areas by pumps 
or ejectors; however, you must manually activate these pumps or ejectors 
and must inspect the condition of the accumulation before starting, to 
ensure no oil will be discharged.
    (2) Use valves of manual, open-and-closed design, for the drainage 
of diked areas. You may not use flapper-type drain valves to drain diked 
areas. If your facility drainage drains directly into a watercourse and 
not into an on-site wastewater treatment plant, you

[[Page 48]]

must inspect and may drain uncontaminated retained stormwater, subject 
to the requirements of paragraphs (c)(3)(ii), (iii), and (iv) of this 
section.
    (3) Design facility drainage systems from undiked areas with a 
potential for a discharge (such as where piping is located outside 
containment walls or where tank truck discharges may occur outside the 
loading area) to flow into ponds, lagoons, or catchment basins designed 
to retain oil or return it to the facility. You must not locate 
catchment basins in areas subject to periodic flooding.
    (4) If facility drainage is not engineered as in paragraph (b)(3) of 
this section, equip the final discharge of all ditches inside the 
facility with a diversion system that would, in the event of an 
uncontrolled discharge, retain oil in the facility.
    (5) Where drainage waters are treated in more than one treatment 
unit and such treatment is continuous, and pump transfer is needed, 
provide two ``lift'' pumps and permanently install at least one of the 
pumps. Whatever techniques you use, you must engineer facility drainage 
systems to prevent a discharge as described in Sec. 112.1(b) in case 
there is an equipment failure or human error at the facility.
    (c) Bulk storage containers. (1) Not use a container for the storage 
of oil unless its material and construction are compatible with the 
material stored and conditions of storage such as pressure and 
temperature.
    (2) Construct all bulk storage tank installations (except mobile 
refuelers) so that you provide a secondary means of containment for the 
entire capacity of the largest single container and sufficient freeboard 
to contain precipitation. You must ensure that diked areas are 
sufficiently impervious to contain discharged oil. Dikes, containment 
curbs, and pits are commonly employed for this purpose. You may also use 
an alternative system consisting of a drainage trench enclosure that 
must be arranged so that any discharge will terminate and be safely 
confined in a facility catchment basin or holding pond.
    (3) Not allow drainage of uncontaminated rainwater from the diked 
area into a storm drain or discharge of an effluent into an open 
watercourse, lake, or pond, bypassing the facility treatment system 
unless you:
    (i) Normally keep the bypass valve sealed closed.
    (ii) Inspect the retained rainwater to ensure that its presence will 
not cause a discharge as described in Sec. 112.1(b).
    (iii) Open the bypass valve and reseal it following drainage under 
responsible supervision; and
    (iv) Keep adequate records of such events, for example, any records 
required under permits issued in accordance with Sec. Sec. 122.41(j)(2) 
and 122.41(m)(3) of this chapter.
    (4) Protect any completely buried metallic storage tank installed on 
or after January 10, 1974 from corrosion by coatings or cathodic 
protection compatible with local soil conditions. You must regularly 
leak test such completely buried metallic storage tanks.
    (5) Not use partially buried or bunkered metallic tanks for the 
storage of oil, unless you protect the buried section of the tank from 
corrosion. You must protect partially buried and bunkered tanks from 
corrosion by coatings or cathodic protection compatible with local soil 
conditions.
    (6) Test each aboveground container for integrity on a regular 
schedule, and whenever you make material repairs. The frequency of and 
type of testing must take into account container size and design (such 
as floating roof, skid-mounted, elevated, or partially buried). You must 
combine visual inspection with another testing technique such as 
hydrostatic testing, radiographic testing, ultrasonic testing, acoustic 
emissions testing, or another system of non-destructive shell testing. 
You must keep comparison records and you must also inspect the 
container's supports and foundations. In addition, you must frequently 
inspect the outside of the container for signs of deterioration, 
discharges, or accumulation of oil inside diked areas. Records of 
inspections and tests kept under usual and customary business practices 
will suffice for purposes of this paragraph.
    (7) Control leakage through defective internal heating coils by 
monitoring the steam return and exhaust lines for

[[Page 49]]

contamination from internal heating coils that discharge into an open 
watercourse, or pass the steam return or exhaust lines through a 
settling tank, skimmer, or other separation or retention system.
    (8) Engineer or update each container installation in accordance 
with good engineering practice to avoid discharges. You must provide at 
least one of the following devices:
    (i) High liquid level alarms with an audible or visual signal at a 
constantly attended operation or surveillance station. In smaller 
facilities an audible air vent may suffice.
    (ii) High liquid level pump cutoff devices set to stop flow at a 
predetermined container content level.
    (iii) Direct audible or code signal communication between the 
container gauger and the pumping station.
    (iv) A fast response system for determining the liquid level of each 
bulk storage container such as digital computers, telepulse, or direct 
vision gauges. If you use this alternative, a person must be present to 
monitor gauges and the overall filling of bulk storage containers.
    (v) You must regularly test liquid level sensing devices to ensure 
proper operation.
    (9) Observe effluent treatment facilities frequently enough to 
detect possible system upsets that could cause a discharge as described 
in Sec. 112.1(b).
    (10) Promptly correct visible discharges which result in a loss of 
oil from the container, including but not limited to seams, gaskets, 
piping, pumps, valves, rivets, and bolts. You must promptly remove any 
accumulations of oil in diked areas.
    (11) Position or locate mobile or portable oil storage containers to 
prevent a discharge as described in Sec. 112.1(b). Except for mobile 
refuelers, you must furnish a secondary means of containment, such as a 
dike or catchment basin, sufficient to contain the capacity of the 
largest single compartment or container with sufficient freeboard to 
contain precipitation.
    (d) Facility transfer operations, pumping, and facility process. (1) 
Provide buried piping that is installed or replaced on or after August 
16, 2002, with a protective wrapping and coating. You must also 
cathodically protect such buried piping installations or otherwise 
satisfy the corrosion protection standards for piping in part 280 of 
this chapter or a State program approved under part 281 of this chapter. 
If a section of buried line is exposed for any reason, you must 
carefully inspect it for deterioration. If you find corrosion damage, 
you must undertake additional examination and corrective action as 
indicated by the magnitude of the damage.
    (2) Cap or blank-flange the terminal connection at the transfer 
point and mark it as to origin when piping is not in service or is in 
standby service for an extended time.
    (3) Properly design pipe supports to minimize abrasion and corrosion 
and allow for expansion and contraction.
    (4) Regularly inspect all aboveground valves, piping, and 
appurtenances. During the inspection you must assess the general 
condition of items, such as flange joints, expansion joints, valve 
glands and bodies, catch pans, pipeline supports, locking of valves, and 
metal surfaces. You must also conduct integrity and leak testing of 
buried piping at the time of installation, modification, construction, 
relocation, or replacement.
    (5) Warn all vehicles entering the facility to be sure that no 
vehicle will endanger aboveground piping or other oil transfer 
operations.

[67 FR 57149, July 17, 2002, as amended at 71 FR 77293, Dec. 26, 2006]

    Effective Date Note: At 73 FR 74305, Dec. 5, 2008, Sec. 112.12 was 
amended by revising the introductory text, the first sentence of (c)(2), 
and paragraphs (c)(6), and (11), effective Feb. 3, 2009. At 74 FR 5900, 
Feb. 3, 2009, these amendments were delayed. At 74 FR 14736, Apr. 1, 
2009, these amendments were further delayed to January 14, 2010. For the 
convenience of the user, the revised text is set forth below.



Sec. 112.12  Spill Prevention, Control, and Countermeasure Plan 

Requirements.

    If you are the owner or operator of an onshore facility, you must:

                                * * * * *

    (c) * * *
    (2) Construct all bulk storage tank installations (except mobile 
refuelers and other non-transportation-related tank trucks) so

[[Page 50]]

that you provide a secondary means of containment for the entire 
capacity of the largest single container and sufficient freeboard to 
contain precipitation. * * *

                                * * * * *

    (6) Bulk storage container inspections.
    (i) Except for containers that meet the criteria provided in 
paragraph (c)(6)(ii) of this section, test or inspect each aboveground 
container for integrity on a regular schedule and whenever you make 
material repairs. You must determine, in accordance with industry 
standards, the appropriate qualifications for personnel performing tests 
and inspections, the frequency and type of testing and inspections, 
which take into account container size, configuration, and design (such 
as containers that are: shop-built, field-erected, skid-mounted, 
elevated, equipped with a liner, double-walled, or partially buried). 
Examples of these integrity tests include, but are not limited to: 
Visual inspection, hydrostatic testing, radiographic testing, ultrasonic 
testing, acoustic emissions testing, or other systems of non-destructive 
testing. You must keep comparison records and you must also inspect the 
container's supports and foundations. In addition, you must frequently 
inspect the outside of the container for signs of deterioration, 
discharges, or accumulation of oil inside diked areas. Records of 
inspections and tests kept under usual and customary business practices 
satisfy the recordkeeping requirements of this paragraph.
    (ii) For bulk storage containers that are subject to 21 CFR part 
110, are elevated, constructed of austenitic stainless steel, have no 
external insulation, and are shop-fabricated, conduct formal visual 
inspection on a regular schedule. In addition, you must frequently 
inspect the outside of the container for signs of deterioration, 
discharges, or accumulation of oil inside diked areas. You must 
determine and document in the Plan the appropriate qualifications for 
personnel performing tests and inspections. Records of inspections and 
tests kept under usual and customary business practices satisfy the 
recordkeeping requirements of this paragraph (c)(6).

                                * * * * *

    (11) Position or locate mobile or portable oil storage containers to 
prevent a discharge as described in Sec. 112.1(b). Except for mobile 
refuelers and other non-transportation-related tank trucks, you must 
furnish a secondary means of containment, such as a dike or catchment 
basin, sufficient to contain the capacity of the largest single 
compartment or container with sufficient freeboard to contain 
precipitation.

                                * * * * *



Sec. Sec. 112.13-112.15  [Reserved]



                     Subpart D_Response Requirements



Sec. 112.20  Facility response plans.

    (a) The owner or operator of any non-transportation-related onshore 
facility that, because of its location, could reasonably be expected to 
cause substantial harm to the environment by discharging oil into or on 
the navigable waters or adjoining shorelines shall prepare and submit a 
facility response plan to the Regional Administrator, according to the 
following provisions:
    (1) For the owner or operator of a facility in operation on or 
before February 18, 1993 who is required to prepare and submit a 
response plan under 33 U.S.C. 1321(j)(5), the Oil Pollution Act of 1990 
(Pub. L. 101-380, 33 U.S.C. 2701 et seq.) requires the submission of a 
response plan that satisfies the requirements of 33 U.S.C. 1321(j)(5) no 
later than February 18, 1993.
    (i) The owner or operator of an existing facility that was in 
operation on or before February 18, 1993 who submitted a response plan 
by February 18, 1993 shall revise the response plan to satisfy the 
requirements of this section and resubmit the response plan or updated 
portions of the response plan to the Regional Administrator by February 
18, 1995.
    (ii) The owner or operator of an existing facility in operation on 
or before February 18, 1993 who failed to submit a response plan by 
February 18, 1993 shall prepare and submit a response plan that 
satisfies the requirements of this section to the Regional Administrator 
before August 30, 1994.
    (2) The owner or operator of a facility in operation on or after 
August 30, 1994 that satisfies the criteria in paragraph (f)(1) of this 
section or that is notified by the Regional Administrator pursuant to 
paragraph (b) of this section shall prepare and submit a facility 
response plan that satisfies the requirements of this section to the 
Regional Administrator.

[[Page 51]]

    (i) For a facility that commenced operations after February 18, 1993 
but prior to August 30, 1994, and is required to prepare and submit a 
response plan based on the criteria in paragraph (f)(1) of this section, 
the owner or operator shall submit the response plan or updated portions 
of the response plan, along with a completed version of the response 
plan cover sheet contained in appendix F to this part, to the Regional 
Administrator prior to August 30, 1994.
    (ii) For a newly constructed facility that commences operation after 
August 30, 1994, and is required to prepare and submit a response plan 
based on the criteria in paragraph (f)(1) of this section, the owner or 
operator shall submit the response plan, along with a completed version 
of the response plan cover sheet contained in Appendix F to this part, 
to the Regional Administrator prior to the start of operations 
(adjustments to the response plan to reflect changes that occur at the 
facility during the start-up phase of operations must be submitted to 
the Regional Administrator after an operational trial period of 60 
days).
    (iii) For a facility required to prepare and submit a response plan 
after August 30, 1994, as a result of a planned change in design, 
construction, operation, or maintenance that renders the facility 
subject to the criteria in paragraph (f)(1) of this section, the owner 
or operator shall submit the response plan, along with a completed 
version of the response plan cover sheet contained in Appendix F to this 
part, to the Regional Administrator before the portion of the facility 
undergoing change commences operations (adjustments to the response plan 
to reflect changes that occur at the facility during the start-up phase 
of operations must be submitted to the Regional Administrator after an 
operational trial period of 60 days).
    (iv) For a facility required to prepare and submit a response plan 
after August 30, 1994, as a result of an unplanned event or change in 
facility characteristics that renders the facility subject to the 
criteria in paragraph (f)(1) of this section, the owner or operator 
shall submit the response plan, along with a completed version of the 
response plan cover sheet contained in Appendix F to this part, to the 
Regional Administrator within six months of the unplanned event or 
change.
    (3) In the event the owner or operator of a facility that is 
required to prepare and submit a response plan uses an alternative 
formula that is comparable to one contained in Appendix C to this part 
to evaluate the criterion in paragraph (f)(1)(ii)(B) or (f)(1)(ii)(C) of 
this section, the owner or operator shall attach documentation to the 
response plan cover sheet contained in Appendix F to this part that 
demonstrates the reliability and analytical soundness of the alternative 
formula.
    (4) Preparation and submission of response plans--Animal fat and 
vegetable oil facilities. The owner or operator of any non-
transportation-related facility that handles, stores, or transports 
animal fats and vegetable oils must prepare and submit a facility 
response plan as follows:
    (i) Facilities with approved plans. The owner or operator of a 
facility with a facility response plan that has been approved under 
paragraph (c) of this section by July 31, 2000 need not prepare or 
submit a revised plan except as otherwise required by paragraphs (b), 
(c), or (d) of this section.
    (ii) Facilities with plans that have been submitted to the Regional 
Administrator. Except for facilities with approved plans as provided in 
paragraph (a)(4)(i) of this section, the owner or operator of a facility 
that has submitted a response plan to the Regional Administrator prior 
to July 31, 2000 must review the plan to determine if it meets or 
exceeds the applicable provisions of this part. An owner or operator 
need not prepare or submit a new plan if the existing plan meets or 
exceeds the applicable provisions of this part. If the plan does not 
meet or exceed the applicable provisions of this part, the owner or 
operator must prepare and submit a new plan by September 28, 2000.
    (iii) Newly regulated facilities. The owner or operator of a newly 
constructed facility that commences operation after July 31, 2000 must 
prepare and submit a plan to the Regional Administrator in accordance 
with paragraph (a)(2)(ii) of this section. The plan

[[Page 52]]

must meet or exceed the applicable provisions of this part. The owner or 
operator of an existing facility that must prepare and submit a plan 
after July 31, 2000 as a result of a planned or unplanned change in 
facility characteristics that causes the facility to become regulated 
under paragraph (f)(1) of this section, must prepare and submit a plan 
to the Regional Administrator in accordance with paragraph (a)(2)(iii) 
or (iv) of this section, as appropriate. The plan must meet or exceed 
the applicable provisions of this part.
    (iv) Facilities amending existing plans. The owner or operator of a 
facility submitting an amended plan in accordance with paragraph (d) of 
this section after July 31, 2000, including plans that had been 
previously approved, must also review the plan to determine if it meets 
or exceeds the applicable provisions of this part. If the plan does not 
meet or exceed the applicable provisions of this part, the owner or 
operator must revise and resubmit revised portions of an amended plan to 
the Regional Administrator in accordance with paragraph (d) of this 
section, as appropriate. The plan must meet or exceed the applicable 
provisions of this part.
    (b)(1) The Regional Administrator may at any time require the owner 
or operator of any non-transportation-related onshore facility to 
prepare and submit a facility response plan under this section after 
considering the factors in paragraph (f)(2) of this section. If such a 
determination is made, the Regional Administrator shall notify the 
facility owner or operator in writing and shall provide a basis for the 
determination. If the Regional Administrator notifies the owner or 
operator in writing of the requirement to prepare and submit a response 
plan under this section, the owner or operator of the facility shall 
submit the response plan to the Regional Administrator within six months 
of receipt of such written notification.
    (2) The Regional Administrator shall review plans submitted by such 
facilities to determine whether the facility could, because of its 
location, reasonably be expected to cause significant and substantial 
harm to the environment by discharging oil into or on the navigable 
waters or adjoining shorelines.
    (c) The Regional Administrator shall determine whether a facility 
could, because of its location, reasonably be expected to cause 
significant and substantial harm to the environment by discharging oil 
into or on the navigable waters or adjoining shorelines, based on the 
factors in paragraph (f)(3) of this section. If such a determination is 
made, the Regional Administrator shall notify the owner or operator of 
the facility in writing and:
    (1) Promptly review the facility response plan;
    (2) Require amendments to any response plan that does not meet the 
requirements of this section;
    (3) Approve any response plan that meets the requirements of this 
section; and
    (4) Review each response plan periodically thereafter on a schedule 
established by the Regional Administrator provided that the period 
between plan reviews does not exceed five years.
    (d)(1) The owner or operator of a facility for which a response plan 
is required under this part shall revise and resubmit revised portions 
of the response plan within 60 days of each facility change that 
materially may affect the response to a worst case discharge, including:
    (i) A change in the facility's configuration that materially alters 
the information included in the response plan;
    (ii) A change in the type of oil handled, stored, or transferred 
that materially alters the required response resources;
    (iii) A material change in capabilities of the oil spill removal 
organization(s) that provide equipment and personnel to respond to 
discharges of oil described in paragraph (h)(5) of this section;
    (iv) A material change in the facility's spill prevention and 
response equipment or emergency response procedures; and
    (v) Any other changes that materially affect the implementation of 
the response plan.
    (2) Except as provided in paragraph (d)(1) of this section, 
amendments to personnel and telephone number lists included in the 
response plan and a

[[Page 53]]

change in the oil spill removal organization(s) that does not result in 
a material change in support capabilities do not require approval by the 
Regional Administrator. Facility owners or operators shall provide a 
copy of such changes to the Regional Administrator as the revisions 
occur.
    (3) The owner or operator of a facility that submits changes to a 
response plan as provided in paragraph (d)(1) or (d)(2) of this section 
shall provide the EPA-issued facility identification number (where one 
has been assigned) with the changes.
    (4) The Regional Administrator shall review for approval changes to 
a response plan submitted pursuant to paragraph (d)(1) of this section 
for a facility determined pursuant to paragraph (f)(3) of this section 
to have the potential to cause significant and substantial harm to the 
environment.
    (e) If the owner or operator of a facility determines pursuant to 
paragraph (a)(2) of this section that the facility could not, because of 
its location, reasonably be expected to cause substantial harm to the 
environment by discharging oil into or on the navigable waters or 
adjoining shorelines, the owner or operator shall complete and maintain 
at the facility the certification form contained in Appendix C to this 
part and, in the event an alternative formula that is comparable to one 
contained in Appendix C to this part is used to evaluate the criterion 
in paragraph (f)(1)(ii)(B) or (f)(1)(ii)(C) of this section, the owner 
or operator shall attach documentation to the certification form that 
demonstrates the reliability and analytical soundness of the comparable 
formula and shall notify the Regional Administrator in writing that an 
alternative formula was used.
    (f)(1) A facility could, because of its location, reasonably be 
expected to cause substantial harm to the environment by discharging oil 
into or on the navigable waters or adjoining shorelines pursuant to 
paragraph (a)(2) of this section, if it meets any of the following 
criteria applied in accordance with the flowchart contained in 
Attachment C-I to Appendix C to this part:
    (i) The facility transfers oil over water to or from vessels and has 
a total oil storage capacity greater than or equal to 42,000 gallons; or
    (ii) The facility's total oil storage capacity is greater than or 
equal to 1 million gallons, and one of the following is true:
    (A) The facility does not have secondary containment for each 
aboveground storage area sufficiently large to contain the capacity of 
the largest aboveground oil storage tank within each storage area plus 
sufficient freeboard to allow for precipitation;
    (B) The facility is located at a distance (as calculated using the 
appropriate formula in Appendix C to this part or a comparable formula) 
such that a discharge from the facility could cause injury to fish and 
wildlife and sensitive environments. For further description of fish and 
wildlife and sensitive environments, see Appendices I, II, and III of 
the ``Guidance for Facility and Vessel Response Plans: Fish and Wildlife 
and Sensitive Environments'' (see Appendix E to this part, section 13, 
for availability) and the applicable Area Contingency Plan prepared 
pursuant to section 311(j)(4) of the Clean Water Act;
    (C) The facility is located at a distance (as calculated using the 
appropriate formula in Appendix C to this part or a comparable formula) 
such that a discharge from the facility would shut down a public 
drinking water intake; or
    (D) The facility has had a reportable oil discharge in an amount 
greater than or equal to 10,000 gallons within the last 5 years.
    (2)(i) To determine whether a facility could, because of its 
location, reasonably be expected to cause substantial harm to the 
environment by discharging oil into or on the navigable waters or 
adjoining shorelines pursuant to paragraph (b) of this section, the 
Regional Administrator shall consider the following:
    (A) Type of transfer operation;
    (B) Oil storage capacity;
    (C) Lack of secondary containment;
    (D) Proximity to fish and wildlife and sensitive environments and 
other areas determined by the Regional Administrator to possess 
ecological value;

[[Page 54]]

    (E) Proximity to drinking water intakes;
    (F) Spill history; and
    (G) Other site-specific characteristics and environmental factors 
that the Regional Administrator determines to be relevant to protecting 
the environment from harm by discharges of oil into or on navigable 
waters or adjoining shorelines.
    (ii) Any person, including a member of the public or any 
representative from a Federal, State, or local agency who believes that 
a facility subject to this section could, because of its location, 
reasonably be expected to cause substantial harm to the environment by 
discharging oil into or on the navigable waters or adjoining shorelines 
may petition the Regional Administrator to determine whether the 
facility meets the criteria in paragraph (f)(2)(i) of this section. Such 
petition shall include a discussion of how the factors in paragraph 
(f)(2)(i) of this section apply to the facility in question. The RA 
shall consider such petitions and respond in an appropriate amount of 
time.
    (3) To determine whether a facility could, because of its location, 
reasonably be expected to cause significant and substantial harm to the 
environment by discharging oil into or on the navigable waters or 
adjoining shorelines, the Regional Administrator may consider the 
factors in paragraph (f)(2) of this section as well as the following:
    (i) Frequency of past discharges;
    (ii) Proximity to navigable waters;
    (iii) Age of oil storage tanks; and
    (iv) Other facility-specific and Region-specific information, 
including local impacts on public health.
    (g)(1) All facility response plans shall be consistent with the 
requirements of the National Oil and Hazardous Substance Pollution 
Contingency Plan (40 CFR part 300) and applicable Area Contingency Plans 
prepared pursuant to section 311(j)(4) of the Clean Water Act. The 
facility response plan should be coordinated with the local emergency 
response plan developed by the local emergency planning committee under 
section 303 of Title III of the Superfund Amendments and Reauthorization 
Act of 1986 (42 U.S.C. 11001 et seq.). Upon request, the owner or 
operator should provide a copy of the facility response plan to the 
local emergency planning committee or State emergency response 
commission.
    (2) The owner or operator shall review relevant portions of the 
National Oil and Hazardous Substances Pollution Contingency Plan and 
applicable Area Contingency Plan annually and, if necessary, revise the 
facility response plan to ensure consistency with these plans.
    (3) The owner or operator shall review and update the facility 
response plan periodically to reflect changes at the facility.
    (h) A response plan shall follow the format of the model facility-
specific response plan included in Appendix F to this part, unless you 
have prepared an equivalent response plan acceptable to the Regional 
Administrator to meet State or other Federal requirements. A response 
plan that does not follow the specified format in Appendix F to this 
part shall have an emergency response action plan as specified in 
paragraphs (h)(1) of this section and be supplemented with a cross-
reference section to identify the location of the elements listed in 
paragraphs (h)(2) through (h)(10) of this section. To meet the 
requirements of this part, a response plan shall address the following 
elements, as further described in Appendix F to this part:
    (1) Emergency response action plan. The response plan shall include 
an emergency response action plan in the format specified in paragraphs 
(h)(1)(i) through (viii) of this section that is maintained in the front 
of the response plan, or as a separate document accompanying the 
response plan, and that includes the following information:
    (i) The identity and telephone number of a qualified individual 
having full authority, including contracting authority, to implement 
removal actions;
    (ii) The identity of individuals or organizations to be contacted in 
the event of a discharge so that immediate communications between the 
qualified individual identified in paragraph (h)(1) of this section and 
the appropriate Federal officials and the persons providing response 
personnel and equipment can be ensured;

[[Page 55]]

    (iii) A description of information to pass to response personnel in 
the event of a reportable discharge;
    (iv) A description of the facility's response equipment and its 
location;
    (v) A description of response personnel capabilities, including the 
duties of persons at the facility during a response action and their 
response times and qualifications;
    (vi) Plans for evacuation of the facility and a reference to 
community evacuation plans, as appropriate;
    (vii) A description of immediate measures to secure the source of 
the discharge, and to provide adequate containment and drainage of 
discharged oil; and
    (viii) A diagram of the facility.
    (2) Facility information. The response plan shall identify and 
discuss the location and type of the facility, the identity and tenure 
of the present owner and operator, and the identity of the qualified 
individual identified in paragraph (h)(1) of this section.
    (3) Information about emergency response. The response plan shall 
include:
    (i) The identity of private personnel and equipment necessary to 
remove to the maximum extent practicable a worst case discharge and 
other discharges of oil described in paragraph (h)(5) of this section, 
and to mitigate or prevent a substantial threat of a worst case 
discharge (To identify response resources to meet the facility response 
plan requirements of this section, owners or operators shall follow 
Appendix E to this part or, where not appropriate, shall clearly 
demonstrate in the response plan why use of Appendix E of this part is 
not appropriate at the facility and make comparable arrangements for 
response resources);
    (ii) Evidence of contracts or other approved means for ensuring the 
availability of such personnel and equipment;
    (iii) The identity and the telephone number of individuals or 
organizations to be contacted in the event of a discharge so that 
immediate communications between the qualified individual identified in 
paragraph (h)(1) of this section and the appropriate Federal official 
and the persons providing response personnel and equipment can be 
ensured;
    (iv) A description of information to pass to response personnel in 
the event of a reportable discharge;
    (v) A description of response personnel capabilities, including the 
duties of persons at the facility during a response action and their 
response times and qualifications;
    (vi) A description of the facility's response equipment, the 
location of the equipment, and equipment testing;
    (vii) Plans for evacuation of the facility and a reference to 
community evacuation plans, as appropriate;
    (viii) A diagram of evacuation routes; and
    (ix) A description of the duties of the qualified individual 
identified in paragraph (h)(1) of this section, that include:
    (A) Activate internal alarms and hazard communication systems to 
notify all facility personnel;
    (B) Notify all response personnel, as needed;
    (C) Identify the character, exact source, amount, and extent of the 
release, as well as the other items needed for notification;
    (D) Notify and provide necessary information to the appropriate 
Federal, State, and local authorities with designated response roles, 
including the National Response Center, State Emergency Response 
Commission, and Local Emergency Planning Committee;
    (E) Assess the interaction of the discharged substance with water 
and/or other substances stored at the facility and notify response 
personnel at the scene of that assessment;
    (F) Assess the possible hazards to human health and the environment 
due to the release. This assessment must consider both the direct and 
indirect effects of the release (i.e., the effects of any toxic, 
irritating, or asphyxiating gases that may be generated, or the effects 
of any hazardous surface water runoffs from water or chemical agents 
used to control fire and heat-induced explosion);
    (G) Assess and implement prompt removal actions to contain and 
remove the substance released;
    (H) Coordinate rescue and response actions as previously arranged 
with all response personnel;

[[Page 56]]

    (I) Use authority to immediately access company funding to initiate 
cleanup activities; and
    (J) Direct cleanup activities until properly relieved of this 
responsibility.
    (4) Hazard evaluation. The response plan shall discuss the 
facility's known or reasonably identifiable history of discharges 
reportable under 40 CFR part 110 for the entire life of the facility and 
shall identify areas within the facility where discharges could occur 
and what the potential effects of the discharges would be on the 
affected environment. To assess the range of areas potentially affected, 
owners or operators shall, where appropriate, consider the distance 
calculated in paragraph (f)(1)(ii) of this section to determine whether 
a facility could, because of its location, reasonably be expected to 
cause substantial harm to the environment by discharging oil into or on 
the navigable waters or adjoining shorelines.
    (5) Response planning levels. The response plan shall include 
discussion of specific planning scenarios for:
    (i) A worst case discharge, as calculated using the appropriate 
worksheet in Appendix D to this part. In cases where the Regional 
Administrator determines that the worst case discharge volume calculated 
by the facility is not appropriate, the Regional Administrator may 
specify the worst case discharge amount to be used for response planning 
at the facility. For complexes, the worst case planning quantity shall 
be the larger of the amounts calculated for each component of the 
facility;
    (ii) A discharge of 2,100 gallons or less, provided that this amount 
is less than the worst case discharge amount. For complexes, this 
planning quantity shall be the larger of the amounts calculated for each 
component of the facility; and
    (iii) A discharge greater than 2,100 gallons and less than or equal 
to 36,000 gallons or 10 percent of the capacity of the largest tank at 
the facility, whichever is less, provided that this amount is less than 
the worst case discharge amount. For complexes, this planning quantity 
shall be the larger of the amounts calculated for each component of the 
facility.
    (6) Discharge detection systems. The response plan shall describe 
the procedures and equipment used to detect discharges.
    (7) Plan implementation. The response plan shall describe:
    (i) Response actions to be carried out by facility personnel or 
contracted personnel under the response plan to ensure the safety of the 
facility and to mitigate or prevent discharges described in paragraph 
(h)(5) of this section or the substantial threat of such discharges;
    (ii) A description of the equipment to be used for each scenario;
    (iii) Plans to dispose of contaminated cleanup materials; and
    (iv) Measures to provide adequate containment and drainage of 
discharged oil.
    (8) Self-inspection, drills/exercises, and response training. The 
response plan shall include:
    (i) A checklist and record of inspections for tanks, secondary 
containment, and response equipment;
    (ii) A description of the drill/exercise program to be carried out 
under the response plan as described in Sec. 112.21;
    (iii) A description of the training program to be carried out under 
the response plan as described in Sec. 112.21; and
    (iv) Logs of discharge prevention meetings, training sessions, and 
drills/exercises. These logs may be maintained as an annex to the 
response plan.
    (9) Diagrams. The response plan shall include site plan and drainage 
plan diagrams.
    (10) Security systems. The response plan shall include a description 
of facility security systems.
    (11) Response plan cover sheet. The response plan shall include a 
completed response plan cover sheet provided in Section 2.0 of Appendix 
F to this part.
    (i)(1) In the event the owner or operator of a facility does not 
agree with the Regional Administrator's determination that the facility 
could, because of its location, reasonably be expected to cause 
substantial harm or significant and substantial harm to the environment 
by discharging oil into or on the navigable waters or adjoining 
shorelines, or that amendments to the facility response plan are 
necessary

[[Page 57]]

prior to approval, such as changes to the worst case discharge planning 
volume, the owner or operator may submit a request for reconsideration 
to the Regional Administrator and provide additional information and 
data in writing to support the request. The request and accompanying 
information must be submitted to the Regional Administrator within 60 
days of receipt of notice of the Regional Administrator's original 
decision. The Regional Administrator shall consider the request and 
render a decision as rapidly as practicable.
    (2) In the event the owner or operator of a facility believes a 
change in the facility's classification status is warranted because of 
an unplanned event or change in the facility's characteristics (i.e., 
substantial harm or significant and substantial harm), the owner or 
operator may submit a request for reconsideration to the Regional 
Administrator and provide additional information and data in writing to 
support the request. The Regional Administrator shall consider the 
request and render a decision as rapidly as practicable.
    (3) After a request for reconsideration under paragraph (i)(1) or 
(i)(2) of this section has been denied by the Regional Administrator, an 
owner or operator may appeal a determination made by the Regional 
Administrator. The appeal shall be made to the EPA Administrator and 
shall be made in writing within 60 days of receipt of the decision from 
the Regional Administrator that the request for reconsideration was 
denied. A complete copy of the appeal must be sent to the Regional 
Administrator at the time the appeal is made. The appeal shall contain a 
clear and concise statement of the issues and points of fact in the 
case. It also may contain additional information from the owner or 
operator, or from any other person. The EPA Administrator may request 
additional information from the owner or operator, or from any other 
person. The EPA Administrator shall render a decision as rapidly as 
practicable and shall notify the owner or operator of the decision.

[59 FR 34098, July 1, 1994, as amended at 65 FR 40798, June 30, 2000; 66 
FR 34560, June 29, 2001; 67 FR 47151, July 17, 2002]



Sec. 112.21  Facility response training and drills/exercises.

    (a) The owner or operator of any facility required to prepare a 
facility response plan under Sec. 112.20 shall develop and implement a 
facility response training program and a drill/exercise program that 
satisfy the requirements of this section. The owner or operator shall 
describe the programs in the response plan as provided in Sec. 
112.20(h)(8).
    (b) The facility owner or operator shall develop a facility response 
training program to train those personnel involved in oil spill response 
activities. It is recommended that the training program be based on the 
USCG's Training Elements for Oil Spill Response, as applicable to 
facility operations. An alternative program can also be acceptable 
subject to approval by the Regional Administrator.
    (1) The owner or operator shall be responsible for the proper 
instruction of facility personnel in the procedures to respond to 
discharges of oil and in applicable oil spill response laws, rules, and 
regulations.
    (2) Training shall be functional in nature according to job tasks 
for both supervisory and non-supervisory operational personnel.
    (3) Trainers shall develop specific lesson plans on subject areas 
relevant to facility personnel involved in oil spill response and 
cleanup.
    (c) The facility owner or operator shall develop a program of 
facility response drills/exercises, including evaluation procedures. A 
program that follows the National Preparedness for Response Exercise 
Program (PREP) (see Appendix E to this part, section 13, for 
availability) will be deemed satisfactory for purposes of this section. 
An alternative program can also be acceptable subject to approval by the 
Regional Administrator.

[59 FR 34101, July 1, 1994, as amended at 65 FR 40798, June 30, 2000]

[[Page 58]]



  Sec. Appendix A to Part 112--Memorandum of Understanding Between the 

 Secretary of Transportation and the Administrator of the Environmental 

                            Protection Agency

                         section ii--definitions

    The Environmental Protection Agency and the Department of 
Transportation agree that for the purposes of Executive Order 11548, the 
term:
    (1) Non-transportation-related onshore and offshore facilities 
means:
    (A) Fixed onshore and offshore oil well drilling facilities 
including all equipment and appurtenances related thereto used in 
drilling operations for exploratory or development wells, but excluding 
any terminal facility, unit or process integrally associated with the 
handling or transferring of oil in bulk to or from a vessel.
    (B) Mobile onshore and offshore oil well drilling platforms, barges, 
trucks, or other mobile facilities including all equipment and 
appurtenances related thereto when such mobile facilities are fixed in 
position for the purpose of drilling operations for exploratory or 
development wells, but excluding any terminal facility, unit or process 
integrally associated with the handling or transferring of oil in bulk 
to or from a vessel.
    (C) Fixed onshore and offshore oil production structures, platforms, 
derricks, and rigs including all equipment and appurtenances related 
thereto, as well as completed wells and the wellhead separators, oil 
separators, and storage facilities used in the production of oil, but 
excluding any terminal facility, unit or process integrally associated 
with the handling or transferring of oil in bulk to or from a vessel.
    (D) Mobile onshore and offshore oil production facilities including 
all equipment and appurtenances related thereto as well as completed 
wells and wellhead equipment, piping from wellheads to oil separators, 
oil separators, and storage facilities used in the production of oil 
when such mobile facilities are fixed in position for the purpose of oil 
production operations, but excluding any terminal facility, unit or 
process integrally associated with the handling or transferring of oil 
in bulk to or from a vessel.
    (E) Oil refining facilities including all equipment and 
appurtenances related thereto as well as in-plant processing units, 
storage units, piping, drainage systems and waste treatment units used 
in the refining of oil, but excluding any terminal facility, unit or 
process integrally associated with the handling or transferring of oil 
in bulk to or from a vessel.
    (F) Oil storage facilities including all equipment and appurtenances 
related thereto as well as fixed bulk plant storage, terminal oil 
storage facilities, consumer storage, pumps and drainage systems used in 
the storage of oil, but excluding inline or breakout storage tanks 
needed for the continuous operation of a pipeline system and any 
terminal facility, unit or process integrally associated with the 
handling or transferring of oil in bulk to or from a vessel.
    (G) Industrial, commercial, agricultural or public facilities which 
use and store oil, but excluding any terminal facility, unit or process 
integrally associated with the handling or transferring of oil in bulk 
to or from a vessel.
    (H) Waste treatment facilities including in-plant pipelines, 
effluent discharge lines, and storage tanks, but excluding waste 
treatment facilities located on vessels and terminal storage tanks and 
appurtenances for the reception of oily ballast water or tank washings 
from vessels and associated systems used for off-loading vessels.
    (I) Loading racks, transfer hoses, loading arms and other equipment 
which are appurtenant to a nontransportation-related facility or 
terminal facility and which are used to transfer oil in bulk to or from 
highway vehicles or railroad cars.
    (J) Highway vehicles and railroad cars which are used for the 
transport of oil exclusively within the confines of a nontransportation-
related facility and which are not intended to transport oil in 
interstate or intrastate commerce.
    (K) Pipeline systems which are used for the transport of oil 
exclusively within the confines of a nontransportation-related facility 
or terminal facility and which are not intended to transport oil in 
interstate or intrastate commerce, but excluding pipeline systems used 
to transfer oil in bulk to or from a vessel.
    (2) Transportation-related onshore and offshore facilities means:
    (A) Onshore and offshore terminal facilities including transfer 
hoses, loading arms and other equipment and appurtenances used for the 
purpose of handling or transferring oil in bulk to or from a vessel as 
well as storage tanks and appurtenances for the reception of oily 
ballast water or tank washings from vessels, but excluding terminal 
waste treatment facilities and terminal oil storage facilities.
    (B) Transfer hoses, loading arms and other equipment appurtenant to 
a non-transportation-related facility which is used to transfer oil in 
bulk to or from a vessel.
    (C) Interstate and intrastate onshore and offshore pipeline systems 
including pumps and appurtenances related thereto as well as in-line or 
breakout storage tanks needed for the continuous operation of a pipeline 
system, and pipelines from onshore and offshore oil production 
facilities, but excluding onshore and offshore piping from wellheads to 
oil separators and pipelines which are used for the transport of oil 
exclusively within

[[Page 59]]

the confines of a nontransportation-related facility or terminal 
facility and which are not intended to transport oil in interstate or 
intrastate commerce or to transfer oil in bulk to or from a vessel.
    (D) Highway vehicles and railroad cars which are used for the 
transport of oil in interstate or intrastate commerce and the equipment 
and appurtenances related thereto, and equipment used for the fueling of 
locomotive units, as well as the rights-of-way on which they operate. 
Excluded are highway vehicles and railroad cars and motive power used 
exclusively within the confines of a nontransportation-related facility 
or terminal facility and which are not intended for use in interstate or 
intrastate commerce.



   Sec. Appendix B to Part 112--Memorandum of Understanding Among the 

      Secretary of the Interior, Secretary of Transportation, and 

          Administrator of the Environmental Protection Agency

                                 Purpose

    This Memorandum of Understanding (MOU) establishes the 
jurisdictional responsibilities for offshore facilities, including 
pipelines, pursuant to section 311 (j)(1)(c), (j)(5), and (j)(6)(A) of 
the Clean Water Act (CWA), as amended by the Oil Pollution Act of 1990 
(Public Law 101-380). The Secretary of the Department of the Interior 
(DOI), Secretary of the Department of Transportation (DOT), and 
Administrator of the Environmental Protection Agency (EPA) agree to the 
division of responsibilities set forth below for spill prevention and 
control, response planning, and equipment inspection activities pursuant 
to those provisions.

                               Background

    Executive Order (E.O.) 12777 (56 FR 54757) delegates to DOI, DOT, 
and EPA various responsibilities identified in section 311(j) of the 
CWA. Sections 2(b)(3), 2(d)(3), and 2(e)(3) of E.O. 12777 assigned to 
DOI spill prevention and control, contingency planning, and equipment 
inspection activities associated with offshore facilities. Section 
311(a)(11) defines the term ``offshore facility'' to include facilities 
of any kind located in, on, or under navigable waters of the United 
States. By using this definition, the traditional DOI role of regulating 
facilities on the Outer Continental Shelf is expanded by E.O. 12777 to 
include inland lakes, rivers, streams, and any other inland waters.

                            Responsibilities

    Pursuant to section 2(i) of E.O. 12777, DOI redelegates, and EPA and 
DOT agree to assume, the functions vested in DOI by sections 2(b)(3), 
2(d)(3), and 2(e)(3) of E.O. 12777 as set forth below. For purposes of 
this MOU, the term ``coast line'' shall be defined as in the Submerged 
Lands Act (43 U.S.C. 1301(c)) to mean ``the line of ordinary low water 
along that portion of the coast which is in direct contact with the open 
sea and the line marking the seaward limit of inland waters.''
    1. To EPA, DOI redelegates responsibility for non-transportation-
related offshore facilities located landward of the coast line.
    2. To DOT, DOI redelegates responsibility for transportation-related 
facilities, including pipelines, located landward of the coast line. The 
DOT retains jurisdiction for deepwater ports and their associated 
seaward pipelines, as delegated by E.O. 12777.
    3. The DOI retains jurisdiction over facilities, including 
pipelines, located seaward of the coast line, except for deepwater ports 
and associated seaward pipelines delegated by E.O. 12777 to DOT.

                             Effective Date

    This MOU is effective on the date of the final execution by the 
indicated signatories.

                               Limitations

    1. The DOI, DOT, and EPA may agree in writing to exceptions to this 
MOU on a facility-specific basis. Affected parties will receive 
notification of the exceptions.
    2. Nothing in this MOU is intended to replace, supersede, or modify 
any existing agreements between or among DOI, DOT, or EPA.

                      Modification and Termination

    Any party to this agreement may propose modifications by submitting 
them in writing to the heads of the other agency/department. No 
modification may be adopted except with the consent of all parties. All 
parties shall indicate their consent to or disagreement with any 
proposed modification within 60 days of receipt. Upon the request of any 
party, representatives of all parties shall meet for the purpose of 
considering exceptions or modifications to this agreement. This MOU may 
be terminated only with the mutual consent of all parties.

    Dated: November 8, 1993.
Bruce Babbitt,
    Secretary of the Interior.
    Dated: December 14, 1993.
Federico Pe[ntilde]a,
    Secretary of Transportation.
    Dated: February 3, 1994.
Carol M. Browner,
    Administrator, Environmental Protection Agency.

[59 FR 34102, July 1, 1994]

[[Page 60]]



         Sec. Appendix C to Part 112--Substantial Harm Criteria

                            1.0 Introduction

    The flowchart provided in Attachment C-I to this appendix shows the 
decision tree with the criteria to identify whether a facility ``could 
reasonably be expected to cause substantial harm to the environment by 
discharging into or on the navigable waters or adjoining shorelines.'' 
In addition, the Regional Administrator has the discretion to identify 
facilities that must prepare and submit facility-specific response plans 
to EPA.

                             1.1 Definitions

    1.1.1 Great Lakes means Lakes Superior, Michigan, Huron, Erie, and 
Ontario, their connecting and tributary waters, the Saint Lawrence River 
as far as Saint Regis, and adjacent port areas.
    1.1.2 Higher Volume Port Areas include
    (1) Boston, MA;
    (2) New York, NY;
    (3) Delaware Bay and River to Philadelphia, PA;
    (4) St. Croix, VI;
    (5) Pascagoula, MS;
    (6) Mississippi River from Southwest Pass, LA to Baton Rouge, LA;
    (7) Louisiana Offshore Oil Port (LOOP), LA;
    (8) Lake Charles, LA;
    (9) Sabine-Neches River, TX;
    (10) Galveston Bay and Houston Ship Channel, TX;
    (11) Corpus Christi, TX;
    (12) Los Angeles/Long Beach Harbor, CA;
    (13) San Francisco Bay, San Pablo Bay, Carquinez Strait, and Suisun 
Bay to Antioch, CA;
    (14) Straits of Juan de Fuca from Port Angeles, WA to and including 
Puget Sound, WA;
    (15) Prince William Sound, AK; and
    (16) Others as specified by the Regional Administrator for any EPA 
Region.
    1.1.3 Inland Area means the area shoreward of the boundary lines 
defined in 46 CFR part 7, except in the Gulf of Mexico. In the Gulf of 
Mexico, it means the area shoreward of the lines of demarcation (COLREG 
lines as defined in 33 CFR 80.740-80.850). The inland area does not 
include the Great Lakes.
    1.1.4 Rivers and Canals means a body of water confined within the 
inland area, including the Intracoastal Waterways and other waterways 
artificially created for navigating that have project depths of 12 feet 
or less.

2.0 Description of Screening Criteria for the Substantial Harm Flowchart

    A facility that has the potential to cause substantial harm to the 
environment in the event of a discharge must prepare and submit a 
facility-specific response plan to EPA in accordance with Appendix F to 
this part. A description of the screening criteria for the substantial 
harm flowchart is provided below:
    2.1 Non-Transportation-Related Facilities With a Total Oil Storage 
Capacity Greater Than or Equal to 42,000 Gallons Where Operations 
Include Over-Water Transfers of Oil. A non-transportation-related 
facility with a total oil storage capacity greater than or equal to 
42,000 gallons that transfers oil over water to or from vessels must 
submit a response plan to EPA. Daily oil transfer operations at these 
types of facilities occur between barges and vessels and onshore bulk 
storage tanks over open water. These facilities are located adjacent to 
navigable water.
    2.2 Lack of Adequate Secondary Containment at Facilities With a 
Total Oil Storage Capacity Greater Than or Equal to 1 Million Gallons. 
Any facility with a total oil storage capacity greater than or equal to 
1 million gallons without secondary containment sufficiently large to 
contain the capacity of the largest aboveground oil storage tank within 
each area plus sufficient freeboard to allow for precipitation must 
submit a response plan to EPA. Secondary containment structures that 
meet the standard of good engineering practice for the purposes of this 
part include berms, dikes, retaining walls, curbing, culverts, gutters, 
or other drainage systems.
    2.3 Proximity to Fish and Wildlife and Sensitive Environments at 
Facilities With a Total Oil Storage Capacity Greater Than or Equal to 1 
Million Gallons. A facility with a total oil storage capacity greater 
than or equal to 1 million gallons must submit its response plan if it 
is located at a distance such that a discharge from the facility could 
cause injury (as defined at 40 CFR 112.2) to fish and wildlife and 
sensitive environments. For further description of fish and wildlife and 
sensitive environments, see Appendices I, II, and III to DOC/NOAA's 
``Guidance for Facility and Vessel Response Plans: Fish and Wildlife and 
Sensitive Environments'' (see Appendix E to this part, section 13, for 
availability) and the applicable Area Contingency Plan. Facility owners 
or operators must determine the distance at which an oil discharge could 
cause injury to fish and wildlife and sensitive environments using the 
appropriate formula presented in Attachment C-III to this appendix or a 
comparable formula.
    2.4 Proximity to Public Drinking Water Intakes at Facilities with a 
Total Oil Storage Capacity Greater than or Equal to 1 Million Gallons A 
facility with a total oil storage capacity greater than or equal to 1 
million gallons must submit its response plan if it is located at a 
distance such that a discharge from the facility would shut down a 
public drinking water intake, which is analogous to a public water 
system as described at 40 CFR 143.2(c).

[[Page 61]]

The distance at which an oil discharge from an SPCC-regulated facility 
would shut down a public drinking water intake shall be calculated using 
the appropriate formula presented in Attachment C-III to this appendix 
or a comparable formula.
    2.5 Facilities That Have Experienced Reportable Oil Discharges in an 
Amount Greater Than or Equal to 10,000 Gallons Within the Past 5 Years 
and That Have a Total Oil Storage Capacity Greater Than or Equal to 1 
Million Gallons. A facility's oil spill history within the past 5 years 
shall be considered in the evaluation for substantial harm. Any facility 
with a total oil storage capacity greater than or equal to 1 million 
gallons that has experienced a reportable oil discharge in an amount 
greater than or equal to 10,000 gallons within the past 5 years must 
submit a response plan to EPA.

   3.0 Certification for Facilities That Do Not Pose Substantial Harm

    If the facility does not meet the substantial harm criteria listed 
in Attachment C-I to this appendix, the owner or operator shall complete 
and maintain at the facility the certification form contained in 
Attachment C-II to this appendix. In the event an alternative formula 
that is comparable to the one in this appendix is used to evaluate the 
substantial harm criteria, the owner or operator shall attach 
documentation to the certification form that demonstrates the 
reliability and analytical soundness of the comparable formula and shall 
notify the Regional Administrator in writing that an alternative formula 
was used.

                             4.0 References

    Chow, V.T. 1959. Open Channel Hydraulics. McGraw Hill.
    USCG IFR (58 FR 7353, February 5, 1993). This document is available 
through EPA's rulemaking docket as noted in Appendix E to this part, 
section 13.

[[Page 62]]

                        Attachments to Appendix C
[GRAPHIC] [TIFF OMITTED] TR30JN00.061


[[Page 63]]



 Attachment C-II--Certification of the Applicability of the Substantial 
                              Harm Criteria

Facility Name:__________________________________________________________
Facility Address:_______________________________________________________
    1. Does the facility transfer oil over water to or from vessels and 
does the facility have a total oil storage capacity greater than or 
equal to 42,000 gallons?
    Yes ------ No ------
    2. Does the facility have a total oil storage capacity greater than 
or equal to 1 million gallons and does the facility lack secondary 
containment that is sufficiently large to contain the capacity of the 
largest aboveground oil storage tank plus sufficient freeboard to allow 
for precipitation within any aboveground oil storage tank area?
    Yes ------ No ------
    3. Does the facility have a total oil storage capacity greater than 
or equal to 1 million gallons and is the facility located at a distance 
(as calculated using the appropriate formula in Attachment C-III to this 
appendix or a comparable formula \1\) such that a discharge from the 
facility could cause injury to fish and wildlife and sensitive 
environments? For further description of fish and wildlife and sensitive 
environments, see Appendices I, II, and III to DOC/NOAA's ``Guidance for 
Facility and Vessel Response Plans: Fish and Wildlife and Sensitive 
Environments'' (see Appendix E to this part, section 13, for 
availability) and the applicable Area Contingency Plan.
    Yes ------ No ------
    4. Does the facility have a total oil storage capacity greater than 
or equal to 1 million gallons and is the facility located at a distance 
(as calculated using the appropriate formula in Attachment C-III to this 
appendix or a comparable formula \1\) such that a discharge from the 
facility would shut down a public drinking water intake \2\ ?
---------------------------------------------------------------------------

    \1\ If a comparable formula is used, documentation of the 
reliability and analytical soundness of the comparable formula must be 
attached to this form.
    \2\ For the purposes of 40 CFR part 112, public drinking water 
intakes are analogous to public water systems as described at 40 CFR 
143.2(c).
---------------------------------------------------------------------------

    Yes ------ No ------
    5. Does the facility have a total oil storage capacity greater than 
or equal to 1 million gallons and has the facility experienced a 
reportable oil discharge in an amount greater than or equal to 10,000 
gallons within the last 5 years?
    Yes ------ No ------

                              Certification

    I certify under penalty of law that I have personally examined and 
am familiar with the information submitted in this document, and that 
based on my inquiry of those individuals responsible for obtaining this 
information, I believe that the submitted information is true, accurate, 
and complete.
________________________________________________________________________
Signature

________________________________________________________________________
Name (please type or print)

________________________________________________________________________
Title

________________________________________________________________________
Date

         Attachment C-III--Calculation of the Planning Distance

                            1.0 Introduction

    1.1 The facility owner or operator must evaluate whether the 
facility is located at a distance such that a discharge from the 
facility could cause injury to fish and wildlife and sensitive 
environments or disrupt operations at a public drinking water intake. To 
quantify that distance, EPA considered oil transport mechanisms over 
land and on still, tidal influence, and moving navigable waters. EPA has 
determined that the primary concern for calculation of a planning 
distance is the transport of oil in navigable waters during adverse 
weather conditions. Therefore, two formulas have been developed to 
determine distances for planning purposes from the point of discharge at 
the facility to the potential site of impact on moving and still waters, 
respectively. The formula for oil transport on moving navigable water is 
based on the velocity of the water body and the time interval for 
arrival of response resources. The still water formula accounts for the 
spread of discharged oil over the surface of the water. The method to 
determine oil transport on tidal influence areas is based on the type of 
oil discharged and the distance down current during ebb tide and up 
current during flood tide to the point of maximum tidal influence.
    1.2 EPA's formulas were designed to be simple to use. However, 
facility owners or operators may calculate planning distances using more 
sophisticated formulas, which take into account broader scientific or 
engineering principles, or local conditions. Such comparable formulas 
may result in different planning distances than EPA's formulas. In the 
event that an alternative formula that is comparable to one contained in 
this appendix is used to evaluate the criterion in 40 CFR 
112.20(f)(1)(ii)(B) or (f)(1)(ii)(C), the owner or operator shall attach 
documentation to the response plan cover sheet contained in Appendix F 
to this part that demonstrates the reliability and analytical soundness 
of the alternative formula and shall notify the Regional Administrator 
in

[[Page 64]]

writing that an alternative formula was used. \1\
---------------------------------------------------------------------------

    \1\ For persistent oils or non-persistent oils, a worst case 
trajectory model (i.e., an alternative formula) may be substituted for 
the distance formulas described in still, moving, and tidal waters, 
subject to Regional Administrator's review of the model. An example of 
an alternative formula that is comparable to the one contained in this 
appendix would be a worst case trajectory calculation based on credible 
adverse winds, currents, and/or river stages, over a range of seasons, 
weather conditions, and river stages. Based on historical information or 
a spill trajectory model, the Agency may require that additional fish 
and wildlife and sensitive environments or public drinking water intakes 
also be protected.
---------------------------------------------------------------------------

    1.3 A regulated facility may meet the criteria for the potential to 
cause substantial harm to the environment without having to perform a 
planning distance calculation. For facilities that meet the substantial 
harm criteria because of inadequate secondary containment or oil spill 
history, as listed in the flowchart in Attachment C-I to this appendix, 
calculation of the planning distance is unnecessary. For facilities that 
do not meet the substantial harm criteria for secondary containment or 
oil spill history as listed in the flowchart, calculation of a planning 
distance for proximity to fish and wildlife and sensitive environments 
and public drinking water intakes is required, unless it is clear 
without performing the calculation (e.g., the facility is located in a 
wetland) that these areas would be impacted.
    1.4 A facility owner or operator who must perform a planning 
distance calculation on navigable water is only required to do so for 
the type of navigable water conditions (i.e., moving water, still water, 
or tidal- influenced water) applicable to the facility. If a facility 
owner or operator determines that more than one type of navigable water 
condition applies, then the facility owner or operator is required to 
perform a planning distance calculation for each navigable water type to 
determine the greatest single distance that oil may be transported. As a 
result, the final planning distance for oil transport on water shall be 
the greatest individual distance rather than a summation of each 
calculated planning distance.
    1.5 The planning distance formula for transport on moving waterways 
contains three variables: the velocity of the navigable water (v), the 
response time interval (t), and a conversion factor (c). The velocity, 
v, is determined by using the Chezy-Manning equation, which, in this 
case, models the flood flow rate of water in open channels. The Chezy-
Manning equation contains three variables which must be determined by 
facility owners or operators. Manning's Roughness Coefficient (for flood 
flow rates), n, can be determined from Table 1 of this attachment. The 
hydraulic radius, r, can be estimated using the average mid-channel 
depth from charts provided by the sources listed in Table 2 of this 
attachment. The average slope of the river, s, can be determined using 
topographic maps that can be ordered from the U.S. Geological Survey, as 
listed in Table 2 of this attachment.
    1.6 Table 3 of this attachment contains specified time intervals for 
estimating the arrival of response resources at the scene of a 
discharge. Assuming no prior planning, response resources should be able 
to arrive at the discharge site within 12 hours of the discovery of any 
oil discharge in Higher Volume Port Areas and within 24 hours in Great 
Lakes and all other river, canal, inland, and nearshore areas. The 
specified time intervals in Table 3 of Appendix C are to be used only to 
aid in the identification of whether a facility could cause substantial 
harm to the environment. Once it is determined that a plan must be 
developed for the facility, the owner or operator shall reference 
Appendix E to this part to determine appropriate resource levels and 
response times. The specified time intervals of this appendix include a 
3-hour time period for deployment of boom and other response equipment. 
The Regional Administrator may identify additional areas as appropriate.

              2.0 Oil Transport on Moving Navigable Waters

    2.1 The facility owner or operator must use the following formula or 
a comparable formula as described in Sec. 112.20(a)(3) to calculate the 
planning distance for oil transport on moving navigable water:

d=vxtxc; where
d: the distance downstream from a facility within which fish and 
wildlife and sensitive environments could be injured or a public 
drinking water intake would be shut down in the event of an oil 
discharge (in miles);
v: the velocity of the river/navigable water of concern (in ft/sec) as 
determined by Chezy-Manning's equation (see below and Tables 1 and 2 of 
this attachment);
t: the time interval specified in Table 3 based upon the type of water 
body and location (in hours); and
c: constant conversion factor 0.68 sec[omega] mile/hr[omega] ft (3600 
sec/hr / 5280 ft/mile).
    2.2 Chezy-Manning's equation is used to determine velocity:
v=1.5/nxr\2/3\xs\1/2\; where
v=the velocity of the river of concern (in ft/sec);
n=Manning's Roughness Coefficient from Table 1 of this attachment;
r=the hydraulic radius; the hydraulic radius can be approximated for 
parabolic channels by multiplying the average mid-channel depth of the 
river (in feet) by 0.667

[[Page 65]]

(sources for obtaining the mid-channel depth are listed in Table 2 of 
this attachment); and
s=the average slope of the river (unitless) obtained from U.S. 
Geological Survey topographic maps at the address listed in Table 2 of 
this attachment.

      Table 1--Manning's Roughness Coefficient for Natural Streams
 [Note: Coefficients are presented for high flow rates at or near flood
                                 stage.]
------------------------------------------------------------------------
                                                              Roughness
                     Stream description                      coefficient
                                                                 (n)
------------------------------------------------------------------------
             Minor Streams (Top Width <100 ft.)
Clean:
  Straight.................................................        0.03
  Winding..................................................        0.04
Sluggish (Weedy, deep pools):
  No trees or brush........................................        0.06
  Trees and/or brush.......................................        0.10
        Major Streams (Top Width 100 ft.)
Regular section:
  (No boulders/brush)......................................       0.035
Irregular section:
  (Brush)..................................................        0.05
------------------------------------------------------------------------

       Table 2--Sources of r and s for the Chezy-Manning Equation

All of the charts and related publications for navigational waters may 
be ordered from:
Distribution Branch
(N/CG33)
National Ocean Service
Riverdale, Maryland 20737-1199
Phone: (301) 436-6990
There will be a charge for materials ordered and a VISA or Mastercard 
will be accepted.
The mid-channel depth to be used in the calculation of the hydraulic 
radius (r) can be obtained directly from the following sources:
Charts of Canadian Coastal and Great Lakes Waters:
Canadian Hydrographic Service
Department of Fisheries and Oceans Institute
P.O. Box 8080
1675 Russell Road
Ottawa, Ontario KIG 3H6
Canada
Phone: (613) 998-4931
Charts and Maps of Lower Mississippi River
(Gulf of Mexico to Ohio River and St. Francis, White, Big Sunflower, 
Atchafalaya, and other rivers):
U.S. Army Corps of Engineers
Vicksburg District
P.O. Box 60
Vicksburg, Mississippi 39180
Phone: (601) 634-5000
Charts of Upper Mississippi River and Illinois Waterway to Lake 
Michigan:
U.S. Army Corps of Engineers
Rock Island District
P.O. Box 2004
Rock Island, Illinois 61204
Phone: (309) 794-5552
Charts of Missouri River:
U.S. Army Corps of Engineers
Omaha District
6014 U.S. Post Office and Courthouse
Omaha, Nebraska 68102
Phone: (402) 221-3900
Charts of Ohio River:
U.S. Army Corps of Engineers
Ohio River Division
P.O. Box 1159
Cincinnati, Ohio 45201
Phone: (513) 684-3002
Charts of Tennessee Valley Authority Reservoirs, Tennessee River and 
Tributaries:
Tennessee Valley Authority
Maps and Engineering Section
416 Union Avenue
Knoxville, Tennessee 37902
Phone: (615) 632-2921
Charts of Black Warrior River, Alabama River, Tombigbee River, 
Apalachicola River and Pearl River:
U.S. Army Corps of Engineers
Mobile District
P.O. Box 2288
Mobile, Alabama 36628-0001
Phone: (205) 690-2511
The average slope of the river (s) may be obtained from topographic 
maps:
U.S. Geological Survey
Map Distribution
Federal Center
Bldg. 41
Box 25286
Denver, Colorado 80225
Additional information can be obtained from the following sources:
1. The State's Department of Natural Resources (DNR) or the State's Aids 
to Navigation office;
2. A knowledgeable local marina operator; or
3. A knowledgeable local water authority (e.g., State water commission)

    2.3 The average slope of the river (s) can be determined from the 
topographic maps using the following steps:
    (1) Locate the facility on the map.
    (2) Find the Normal Pool Elevation at the point of discharge from 
the facility into the water (A).
    (3) Find the Normal Pool Elevation of the public drinking water 
intake or fish and wildlife and sensitive environment located downstream 
(B) (Note: The owner or operator should use a minimum of 20 miles 
downstream as a cutoff to obtain the average slope if the location of a 
specific public drinking water intake or fish and wildlife and sensitive 
environment is unknown).
    (4) If the Normal Pool Elevation is not available, the elevation 
contours can be used to find the slope. Determine elevation of the water 
at the point of discharge from the facility (A). Determine the elevation 
of the

[[Page 66]]

water at the appropriate distance downstream (B). The formula presented 
below can be used to calculate the slope.
    (5) Determine the distance (in miles) between the facility and the 
public drinking water intake or fish and wildlife and sensitive 
environments (C).
    (6) Use the following formula to find the slope, which will be a 
unitless value: Average Slope=[(A-B) (ft)/C (miles)] x [1 mile/5280 
feet]
    2.4 If it is not feasible to determine the slope and mid-channel 
depth by the Chezy-Manning equation, then the river velocity can be 
approximated on- site. A specific length, such as 100 feet, can be 
marked off along the shoreline. A float can be dropped into the stream 
above the mark, and the time required for the float to travel the 
distance can be used to determine the velocity in feet per second. 
However, this method will not yield an average velocity for the length 
of the stream, but a velocity only for the specific location of 
measurement. In addition, the flow rate will vary depending on weather 
conditions such as wind and rainfall. It is recommended that facility 
owners or operators repeat the measurement under a variety of conditions 
to obtain the most accurate estimate of the surface water velocity under 
adverse weather conditions.
    2.5 The planning distance calculations for moving and still 
navigable waters are based on worst case discharges of persistent oils. 
Persistent oils are of concern because they can remain in the water for 
significant periods of time and can potentially exist in large 
quantities downstream. Owners or operators of facilities that store 
persistent as well as non-persistent oils may use a comparable formula. 
The volume of oil discharged is not included as part of the planning 
distance calculation for moving navigable waters. Facilities that will 
meet this substantial harm criterion are those with facility capacities 
greater than or equal to 1 million gallons. It is assumed that these 
facilities are capable of having an oil discharge of sufficient quantity 
to cause injury to fish and wildlife and sensitive environments or shut 
down a public drinking water intake. While owners or operators of 
transfer facilities that store greater than or equal to 42,000 gallons 
are not required to use a planning distance formula for purposes of the 
substantial harm criteria, they should use a planning distance 
calculation in the development of facility-specific response plans.

                    Table 3--Specified Time Intervals
------------------------------------------------------------------------
                                              Substantial harm planning
              Operating areas                        time (hrs)
------------------------------------------------------------------------
Higher volume port area...................  12 hour arrival+3 hour
                                             deployment=15 hours.
Great Lakes...............................  24 hour arrival+3 hour
                                             deployment=27 hours.
All other rivers and canals, inland, and    24 hour arrival+3 hour
 nearshore areas.                            deployment=27 hours.
------------------------------------------------------------------------

    2.6 Example of the Planning Distance Calculation for Oil Transport 
on Moving Navigable Waters. The following example provides a sample 
calculation using the planning distance formula for a facility 
discharging oil into the Monongahela River:
    (1) Solve for v by evaluating n, r, and s for the Chezy-Manning 
equation:
    Find the roughness coefficient, n, on Table 1 of this attachment for 
a regular section of a major stream with a top width greater than 100 
feet. The top width of the river can be found from the topographic map.

n=0.035.
Find slope, s, where A=727 feet, B=710 feet, and C=25 miles.

Solving:
s=[(727 ft-1710 ft)/25 miles]x[1 mile/5280 feet]=1.3x10-4
    The average mid-channel depth is found by averaging the mid-channel 
depth for each mile along the length of the river between the facility 
and the public drinking water intake or the fish or wildlife or 
sensitive environment (or 20 miles downstream if applicable). This value 
is multiplied by 0.667 to obtain the hydraulic radius. The mid-channel 
depth is found by obtaining values for r and s from the sources shown in 
Table 2 for the Monongahela River.

Solving:
r=0.667x20 feet=13.33 feet
Solve for v using:
v=1.5/nxr2/3xs1/2:
v=[1.5/0.035]x(13.33)2/3x(1.3x10-4)1/2
v=2.73 feet/second

    (2) Find t from Table 3 of this attachment. The Monongahela River's 
resource response time is 27 hours.
    (3) Solve for planning distance, d:

d=vxtxc
d=(2.73 ft/sec)x(27 hours)x(0.68 sec[omega] mile/hr[omega] ft)
d=50 miles

Therefore, 50 miles downstream is the appropriate planning distance for 
this facility.

                    3.0 Oil Transport on Still Water

    3.1 For bodies of water including lakes or ponds that do not have a 
measurable velocity, the spreading of the oil over the surface must be 
considered. Owners or operators of facilities located next to still 
water bodies may use a comparable means of calculating

[[Page 67]]

the planning distance. If a comparable formula is used, documentation of 
the reliability and analytical soundness of the comparable calculation 
must be attached to the response plan cover sheet.
    3.2 Example of the Planning Distance Calculation for Oil Transport 
on Still Water. To assist those facilities which could potentially 
discharge into a still body of water, the following analysis was 
performed to provide an example of the type of formula that may be used 
to calculate the planning distance. For this example, a worst case 
discharge of 2,000,000 gallons is used.
    (1) The surface area in square feet covered by an oil discharge on 
still water, A1, can be determined by the following formula, \2\ where V 
is the volume of the discharge in gallons and C is a constant conversion 
factor:
---------------------------------------------------------------------------

    \2\ Huang, J.C. and Monastero, F.C., 1982. Review of the State-of-
the-Art of Oil Pollution Models. Final report submitted to the American 
Petroleum Institute by Raytheon Ocean Systems, Co., East Providence, 
Rhode Island.
---------------------------------------------------------------------------

A1=10\5\xV\3/4\xC
C=0.1643
A1=10\5\x(2,000,000 gallons)\3/4\x(0.1643)
A1=8.74x10\8\ ft\2\
    (2) The spreading formula is based on the theoretical condition that 
the oil will spread uniformly in all directions forming a circle. In 
reality, the outfall of the discharge will direct the oil to the surface 
of the water where it intersects the shoreline. Although the oil will 
not spread uniformly in all directions, it is assumed that the discharge 
will spread from the shoreline into a semi-circle (this assumption does 
not account for winds or wave action).
    (3) The area of a circle=[dagger] r\2\
    (4) To account for the assumption that oil will spread in a semi-
circular shape, the area of a circle is divided by 2 and is designated 
as A2.

A2=([dagger] r\2\)/2
Solving for the radius, r, using the relationship 
A1=A2: 8.74x10\8\ ft\2\=([dagger]\2\)/2
Therefore, r=23,586 ft
r=23,586 ft/5,280 ft/mile=4.5 miles
Assuming a 20 knot wind under storm conditions:
1 knot=1.15 miles/hour
20 knotsx1.15 miles/hour/knot=23 miles/hr
Assuming that the oil slick moves at 3 percent of the wind's speed: \3\
---------------------------------------------------------------------------

    \3\ Oil Spill Prevention & Control. National Spill Control School, 
Corpus Christi State University, Thirteenth Edition, May 1990.
---------------------------------------------------------------------------

23 miles/hourx0.03=0.69 miles/hour

    (5) To estimate the distance that the oil will travel, use the times 
required for response resources to arrive at different geographic 
locations as shown in Table 3 of this attachment.

For example:
For Higher Volume Port Areas: 15 hrsx0.69 miles/hr=10.4 miles
For Great Lakes and all other areas: 27 hrsx0.69 miles/hr=18.6 miles

    (6) The total distance that the oil will travel from the point of 
discharge, including the distance due to spreading, is calculated as 
follows:

Higher Volume Port Areas: d=10.4+4.5 miles or approximately 15 miles
Great Lakes and all other areas: d=18.6+4.5 miles or approximately 23 
miles

               4.0 Oil Transport on Tidal-Influence Areas

    4.1 The planning distance method for tidal influence navigable water 
is based on worst case discharges of persistent and non-persistent oils. 
Persistent oils are of primary concern because they can potentially 
cause harm over a greater distance. For persistent oils discharged into 
tidal waters, the planning distance is 15 miles from the facility down 
current during ebb tide and to the point of maximum tidal influence or 
15 miles, whichever is less, during flood tide.
    4.2 For non-persistent oils discharged into tidal waters, the 
planning distance is 5 miles from the facility down current during ebb 
tide and to the point of maximum tidal influence or 5 miles, whichever 
is less, during flood tide.
    4.3 Example of Determining the Planning Distance for Two Types of 
Navigable Water Conditions. Below is an example of how to determine the 
proper planning distance when a facility could impact two types of 
navigable water conditions: moving water and tidal water.
    (1) Facility X stores persistent oil and is located downstream from 
locks along a slow moving river which is affected by tides. The river 
velocity, v, is determined to be 0.5 feet/second from the Chezy-Manning 
equation used to calculate oil transport on moving navigable waters. The 
specified time interval, t, obtained from Table 3 of this attachment for 
river areas is 27 hours. Therefore, solving for the planning distance, 
d:

d=vxtxc
d=(0.5 ft/sec)x(27 hours)x(0.68 secmile/hrft)
d=9.18 miles.

    (2) However, the planning distance for maximum tidal influence down 
current during ebb tide is 15 miles, which is greater than the 
calculated 9.18 miles. Therefore, 15 miles downstream is the appropriate 
planning distance for this facility.

                       5.0 Oil Transport Over Land

    5.1 Facility owners or operators must evaluate the potential for oil 
to be transported over land to navigable waters of the United States. 
The owner or operator must evaluate the likelihood that portions of a 
worst case discharge would reach navigable

[[Page 68]]

waters via open channel flow or from sheet flow across the land, or be 
prevented from reaching navigable waters when trapped in natural or man-
made depressions excluding secondary containment structures.
    5.2 As discharged oil travels over land, it may enter a storm drain 
or open concrete channel intended for drainage. It is assumed that once 
oil reaches such an inlet, it will flow into the receiving navigable 
water. During a storm event, it is highly probable that the oil will 
either flow into the drainage structures or follow the natural contours 
of the land and flow into the navigable water. Expected minimum and 
maximum velocities are provided as examples of open concrete channel and 
pipe flow. The ranges listed below reflect minimum and maximum 
velocities used as design criteria. \4\ The calculation below 
demonstrates that the time required for oil to travel through a storm 
drain or open concrete channel to navigable water is negligible and can 
be considered instantaneous. The velocities are:
---------------------------------------------------------------------------

    \4\ The design velocities were obtained from Howard County, Maryland 
Department of Public Works' Storm Drainage Design Manual.
---------------------------------------------------------------------------

For open concrete channels:
maximum velocity=25 feet per second
minimum velocity=3 feet per second
For storm drains:
maximum velocity=25 feet per second
minimum velocity=2 feet per second

    5.3 Assuming a length of 0.5 mile from the point of discharge 
through an open concrete channel or concrete storm drain to a navigable 
water, the travel times (distance/velocity) are:

1.8 minutes at a velocity of 25 feet per second
14.7 minutes at a velocity of 3 feet per second
22.0 minutes for at a velocity of 2 feet per second

    5.4 The distances that shall be considered to determine the planning 
distance are illustrated in Figure C-I of this attachment. The relevant 
distances can be described as follows:

D1=Distance from the nearest opportunity for discharge, X1, 
to a storm drain or an open concrete channel leading to navigable water.
D2=Distance through the storm drain or open concrete channel to 
navigable water.
D3=Distance downstream from the outfall within which fish and wildlife 
and sensitive environments could be injured or a public drinking water 
intake would be shut down as determined by the planning distance 
formula.
D4=Distance from the nearest opportunity for discharge, X2, 
to fish and wildlife and sensitive environments not bordering navigable 
water.

    5.5 A facility owner or operator whose nearest opportunity for 
discharge is located within 0.5 mile of a navigable water must complete 
the planning distance calculation (D3) for the type of navigable water 
near the facility or use a comparable formula.
    5.6 A facility that is located at a distance greater than 0.5 mile 
from a navigable water must also calculate a planning distance (D3) if 
it is in close proximity (i.e., D1 is less than 0.5 mile and other 
factors are conducive to oil travel over land) to storm drains that flow 
to navigable waters. Factors to be considered in assessing oil transport 
over land to storm drains shall include the topography of the 
surrounding area, drainage patterns, man-made barriers (excluding 
secondary containment structures), and soil distribution and porosity. 
Storm drains or concrete drainage channels that are located in close 
proximity to the facility can provide a direct pathway to navigable 
waters, regardless of the length of the drainage pipe. If D1 is less 
than or equal to 0.5 mile, a discharge from the facility could pose 
substantial harm because the time to travel the distance from the storm 
drain to the navigable water (D2) is virtually instantaneous.
    5.7 A facility's proximity to fish and wildlife and sensitive 
environments not bordering a navigable water, as depicted as D4 in 
Figure C-I of this attachment, must also be considered, regardless of 
the distance from the facility to navigable waters. Factors to be 
considered in assessing oil transport over land to fish and wildlife and 
sensitive environments should include the topography of the surrounding 
area, drainage patterns, man-made barriers (excluding secondary 
containment structures), and soil distribution and porosity.
    5.8 If a facility is not found to pose substantial harm to fish and 
wildlife and sensitive environments not bordering navigable waters via 
oil transport on land, then supporting documentation should be 
maintained at the facility. However, such documentation should be 
submitted with the response plan if a facility is found to pose 
substantial harm.

[[Page 69]]

[GRAPHIC] [TIFF OMITTED] TC01MR92.010


[59 FR 34102, July 1, 1994, as amended at 65 FR 40798, June 30, 2000; 67 
FR 47152, July 17, 2002]

[[Page 70]]



  Sec. Appendix D to Part 112--Determination of a Worst Case Discharge 
                             Planning Volume

                            1.0 Instructions

    1.1 An owner or operator is required to complete this worksheet if 
the facility meets the criteria, as presented in Appendix C to this 
part, or it is determined by the RA that the facility could cause 
substantial harm to the environment. The calculation of a worst case 
discharge planning volume is used for emergency planning purposes, and 
is required in 40 CFR 112.20 for facility owners or operators who must 
prepare a response plan. When planning for the amount of resources and 
equipment necessary to respond to the worst case discharge planning 
volume, adverse weather conditions must be taken into consideration. An 
owner or operator is required to determine the facility's worst case 
discharge planning volume from either part A of this appendix for an 
onshore storage facility, or part B of this appendix for an onshore 
production facility. The worksheet considers the provision of adequate 
secondary containment at a facility.
    1.2 For onshore storage facilities and production facilities, 
permanently manifolded oil storage tanks are defined as tanks that are 
designed, installed, and/or operated in such a manner that the multiple 
tanks function as one storage unit (i.e., multiple tank volumes are 
equalized). In a worst case discharge scenario, a single failure could 
cause the discharge of the contents of more than one tank. The owner or 
operator must provide evidence in the response plan that tanks with 
common piping or piping systems are not operated as one unit. If such 
evidence is provided and is acceptable to the RA, the worst case 
discharge planning volume would be based on the capacity of the largest 
oil storage tank within a common secondary containment area or the 
largest oil storage tank within a single secondary containment area, 
whichever is greater. For permanently manifolded tanks that function as 
one oil storage unit, the worst case discharge planning volume would be 
based on the combined oil storage capacity of all manifolded tanks or 
the capacity of the largest single oil storage tank within a secondary 
containment area, whichever is greater. For purposes of this rule, 
permanently manifolded tanks that are separated by internal divisions 
for each tank are considered to be single tanks and individual 
manifolded tank volumes are not combined.
    1.3 For production facilities, the presence of exploratory wells, 
production wells, and oil storage tanks must be considered in the 
calculation. Part B of this appendix takes these additional factors into 
consideration and provides steps for their inclusion in the total worst 
case discharge planning volume. Onshore oil production facilities may 
include all wells, flowlines, separation equipment, storage facilities, 
gathering lines, and auxiliary non-transportation-related equipment and 
facilities in a single geographical oil or gas field operated by a 
single operator. Although a potential worst case discharge planning 
volume is calculated within each section of the worksheet, the final 
worst case amount depends on the risk parameter that results in the 
greatest volume.
    1.4 Marine transportation-related transfer facilities that contain 
fixed aboveground onshore structures used for bulk oil storage are 
jointly regulated by EPA and the U.S. Coast Guard (USCG), and are termed 
``complexes.'' Because the USCG also requires response plans from 
transportation-related facilities to address a worst case discharge of 
oil, a separate calculation for the worst case discharge planning volume 
for USCG-related facilities is included in the USCG IFR (see Appendix E 
to this part, section 13, for availability). All complexes that are 
jointly regulated by EPA and the USCG must compare both calculations for 
worst case discharge planning volume derived by using the EPA and USCG 
methodologies and plan for whichever volume is greater.

  PART A: WORST CASE DISCHARGE PLANNING VOLUME CALCULATION FOR ONSHORE 
                         STORAGE FACILITIES \1\
---------------------------------------------------------------------------

    \1\ ``Storage facilities'' represent all facilities subject to this 
part, excluding oil production facilities.
---------------------------------------------------------------------------

    Part A of this worksheet is to be completed by the owner or operator 
of an SPCC-regulated facility (excluding oil production facilities) if 
the facility meets the criteria as presented in Appendix C to this part, 
or if it is determined by the RA that the facility could cause 
substantial harm to the environment. If you are the owner or operator of 
a production facility, please proceed to part B of this worksheet.

                       A.1 SINGLE-TANK FACILITIES

    For facilities containing only one aboveground oil storage tank, the 
worst case discharge planning volume equals the capacity of the oil 
storage tank. If adequate secondary containment (sufficiently large to 
contain the capacity of the aboveground oil storage tank plus sufficient 
freeboard to allow for precipitation) exists for the oil storage tank, 
multiply the capacity of the tank by 0.8.
    (1) FINAL WORST CASE VOLUME: -------- GAL
    (2) Do not proceed further.

[[Page 71]]

           A.2 SECONDARY CONTAINMENT--MULTIPLE-TANK FACILITIES

    Are all aboveground oil storage tanks or groups of aboveground oil 
storage tanks at the facility without adequate secondary containment? 
\2\
---------------------------------------------------------------------------

    \2\ Secondary containment is described in 40 CFR part 112, subparts 
A through C. Acceptable methods and structures for containment are also 
given in 40 CFR 112.7(c)(1).
---------------------------------------------------------------------------

-------- (Y/N)

    A.2.1 If the answer is yes, the final worst case discharge planning 
volume equals the total aboveground oil storage capacity at the 
facility.
    (1) FINAL WORST CASE VOLUME: -------- GAL
    (2) Do not proceed further.
    A.2.2 If the answer is no, calculate the total aboveground oil 
storage capacity of tanks without adequate secondary containment. If all 
aboveground oil storage tanks or groups of aboveground oil storage tanks 
at the facility have adequate secondary containment, ENTER ``0'' (zero).

-------- GAL

    A.2.3 Calculate the capacity of the largest single aboveground oil 
storage tank within an adequate secondary containment area or the 
combined capacity of a group of aboveground oil storage tanks 
permanently manifolded together, whichever is greater, PLUS THE VOLUME 
FROM QUESTION A.2.2.
    FINAL WORST CASE VOLUME: \3\ -------- GAL
---------------------------------------------------------------------------

    \3\ All complexes that are jointly regulated by EPA and the USCG 
must also calculate the worst case discharge planning volume for the 
transportation-related portions of the facility and plan for whichever 
volume is greater.
---------------------------------------------------------------------------

  PART B: WORST CASE DISCHARGE PLANNING VOLUME CALCULATION FOR ONSHORE 
                          PRODUCTION FACILITIES

    Part B of this worksheet is to be completed by the owner or operator 
of an SPCC-regulated oil production facility if the facility meets the 
criteria presented in Appendix C to this part, or if it is determined by 
the RA that the facility could cause substantial harm. A production 
facility consists of all wells (producing and exploratory) and related 
equipment in a single geographical oil or gas field operated by a single 
operator.

                       B.1 SINGLE-TANK FACILITIES

    B.1.1 For facilities containing only one aboveground oil storage 
tank, the worst case discharge planning volume equals the capacity of 
the aboveground oil storage tank plus the production volume of the well 
with the highest output at the facility. If adequate secondary 
containment (sufficiently large to contain the capacity of the 
aboveground oil storage tank plus sufficient freeboard to allow for 
precipitation) exists for the storage tank, multiply the capacity of the 
tank by 0.8.
    B.1.2 For facilities with production wells producing by pumping, if 
the rate of the well with the highest output is known and the number of 
days the facility is unattended can be predicted, then the production 
volume is equal to the pumping rate of the well multiplied by the 
greatest number of days the facility is unattended.
    B.1.3 If the pumping rate of the well with the highest output is 
estimated or the maximum number of days the facility is unattended is 
estimated, then the production volume is determined from the pumping 
rate of the well multiplied by 1.5 times the greatest number of days 
that the facility has been or is expected to be unattended.
    B.1.4 Attachment D-1 to this appendix provides methods for 
calculating the production volume for exploratory wells and production 
wells producing under pressure.
    (1) FINAL WORST CASE VOLUME: -------- GAL
    (2) Do not proceed further.

           B.2 SECONDARY CONTAINMENT--MULTIPLE-TANK FACILITIES

    Are all aboveground oil storage tanks or groups of aboveground oil 
storage tanks at the facility without adequate secondary containment?

------ (Y/N)

    B.2.1 If the answer is yes, the final worst case volume equals the 
total aboveground oil storage capacity without adequate secondary 
containment plus the production volume of the well with the highest 
output at the facility.
    (1) For facilities with production wells producing by pumping, if 
the rate of the well with the highest output is known and the number of 
days the facility is unattended can be predicted, then the production 
volume is equal to the pumping rate of the well multiplied by the 
greatest number of days the facility is unattended.
    (2) If the pumping rate of the well with the highest output is 
estimated or the maximum number of days the facility is unattended is 
estimated, then the production volume is determined from the pumping 
rate of the well multiplied by 1.5 times the greatest number of days 
that the facility has been or is expected to be unattended.
    (3) Attachment D-1 to this appendix provides methods for calculating 
the production volumes for exploratory wells and production wells 
producing under pressure.
    (A) FINAL WORST CASE VOLUME: -------- GAL
    (B) Do not proceed further.

[[Page 72]]

    B.2.2 If the answer is no, calculate the total aboveground oil 
storage capacity of tanks without adequate secondary containment. If all 
aboveground oil storage tanks or groups of aboveground oil storage tanks 
at the facility have adequate secondary containment, ENTER ``0'' (zero).

-------- GAL

    B.2.3 Calculate the capacity of the largest single aboveground oil 
storage tank within an adequate secondary containment area or the 
combined capacity of a group of aboveground oil storage tanks 
permanently manifolded together, whichever is greater, plus the 
production volume of the well with the highest output, PLUS THE VOLUME 
FROM QUESTION B.2.2. Attachment D-1 provides methods for calculating the 
production volumes for exploratory wells and production wells producing 
under pressure.
    (1) FINAL WORST CASE VOLUME: \4\ -------- GAL
---------------------------------------------------------------------------

    \4\ All complexes that are jointly regulated by EPA and the USCG 
must also calculate the worst case discharge planning volume for the 
transportation-related portions of the facility and plan for whichever 
volume is greater.
---------------------------------------------------------------------------

    (2) Do not proceed further.

                        Attachments to Appendix D

 Attachment D-I--Methods To Calculate Production Volumes for Production 
 Facilities With Exploratory Wells or Production Wells Producing Under 
                                Pressure

                            1.0 Introduction

    The owner or operator of a production facility with exploratory 
wells or production wells producing under pressure shall compare the 
well rate of the highest output well (rate of well), in barrels per day, 
to the ability of response equipment and personnel to recover the volume 
of oil that could be discharged (rate of recovery), in barrels per day. 
The result of this comparison will determine the method used to 
calculate the production volume for the production facility. This 
production volume is to be used to calculate the worst case discharge 
planning volume in part B of this appendix.

                       2.0 Description of Methods

    2.1 Method A
    If the well rate would overwhelm the response efforts (i.e., rate of 
well/rate of recovery =1), then the production volume would 
be the 30-day forecasted well rate for a well 10,000 feet deep or less, 
or the 45-day forecasted well rate for a well deeper than 10,000 feet.
    (1) For wells 10,000 feet deep or less:
Production volume=30 days x rate of well.
    (2) For wells deeper than 10,000 feet:
Production volume=45 days x rate of well.
    2.2 Method B
    2.2.1 If the rate of recovery would be greater than the well rate 
(i.e., rate of well/rate of recovery <1), then the production volume 
would equal the sum of two terms:

Production volume=discharge volume1 + discharge 
volume2
    2.2.2 The first term represents the volume of the oil discharged 
from the well between the time of the blowout and the time the response 
resources are on scene and recovering oil (discharge 
volume1).

Discharge volume1=(days unattended+days to respond) x (rate 
of well)

    2.2.3 The second term represents the volume of oil discharged from 
the well after the response resources begin operating until the 
discharge is stopped, adjusted for the recovery rate of the response 
resources (discharge volume2).
    (1) For wells 10,000 feet deep or less:
Discharge volume2=[30 days-(days unattended + days to 
respond)] x (rate of well) x (rate of well/rate of recovery)
    (2) For wells deeper than 10,000 feet:
Discharge volume2=[45 days-(days unattended + days to 
respond)] x (rate of well) x (rate of well/rate of recovery)

                               3.0 Example

    3.1 A facility consists of two production wells producing under 
pressure, which are both less than 10,000 feet deep. The well rate of 
well A is 5 barrels per day, and the well rate of well B is 10 barrels 
per day. The facility is unattended for a maximum of 7 days. The 
facility operator estimates that it will take 2 days to have response 
equipment and personnel on scene and responding to a blowout, and that 
the projected rate of recovery will be 20 barrels per day.
    (1) First, the facility operator determines that the highest output 
well is well B. The facility operator calculates the ratio of the rate 
of well to the rate of recovery:

10 barrels per day/20 barrels per day=0.5 Because the ratio is less than 
one, the facility operator will use Method B to calculate the production 
volume.

    (2) The first term of the equation is:

Discharge volume1=(7 days + 2 days) x (10 barrels per day)=90 
barrels

    (3) The second term of the equation is:

Discharge volume2=[30 days--(7 days + 2 days)] x (10 barrels 
per day) x (0.5)=105 barrels

    (4) Therefore, the production volume is:

Production volume=90 barrels + 105 barrels=195 barrels


[[Page 73]]


    3.2 If the recovery rate was 5 barrels per day, the ratio of rate of 
well to rate of recovery would be 2, so the facility operator would use 
Method A. The production volume would have been:

30 days x 10 barrels per day=300 barrels

[59 FR 34110, July 1, 1994; 59 FR 49006, Sept. 26, 1994, as amended at 
65 FR 40800, June 30, 2000; 67 FR 47152, July 17, 2002]



 Sec. Appendix E to Part 112--Determination and Evaluation of Required 
             Response Resources for Facility Response Plans

                       1.0 Purpose and Definitions

    1.1 The purpose of this appendix is to describe the procedures to 
identify response resources to meet the requirements of Sec. 112.20. To 
identify response resources to meet the facility response plan 
requirements of 40 CFR 112.20(h), owners or operators shall follow this 
appendix or, where not appropriate, shall clearly demonstrate in the 
response plan why use of this appendix is not appropriate at the 
facility and make comparable arrangements for response resources.
    1.2 Definitions.
    1.2.1 Animal fat means a non-petroleum oil, fat, or grease of 
animal, fish, or marine mammal origin. Animal fats are further 
classified based on specific gravity as follows:
    (1) Group A--specific gravity less than 0.8.
    (2) Group B--specific gravity equal to or greater than 0.8 and less 
than 1.0.
    (3) Group C--specific gravity equal to or greater than 1.0.
    1.2.2 Nearshore is an operating area defined as extending seaward 12 
miles from the boundary lines defined in 46 CFR part 7, except in the 
Gulf of Mexico. In the Gulf of Mexico, it means the area extending 12 
miles from the line of demarcation (COLREG lines) defined in 49 CFR 
80.740 and 80.850.
    1.2.3 Non-persistent oils or Group 1 oils include:
    (1) A petroleum-based oil that, at the time of shipment, consists of 
hydrocarbon fractions:
    (A) At least 50 percent of which by volume, distill at a temperature 
of 340 degrees C (645 degrees F); and
    (B) At least 95 percent of which by volume, distill at a temperature 
of 370 degrees C (700 degrees F); and
    (2) A non-petroleum oil, other than an animal fat or vegetable oil, 
with a specific gravity less than 0.8.
    1.2.4 Non-petroleum oil means oil of any kind that is not petroleum-
based, including but not limited to: fats, oils, and greases of animal, 
fish, or marine mammal origin; and vegetable oils, including oils from 
seeds, nuts, fruits, and kernels.
    1.2.5 Ocean means the nearshore area.
    1.2.6 Operating area means Rivers and Canals, Inland, Nearshore, and 
Great Lakes geographic location(s) in which a facility is handling, 
storing, or transporting oil.
    1.2.7 Operating environment means Rivers and Canals, Inland, Great 
Lakes, or Ocean. These terms are used to define the conditions in which 
response equipment is designed to function.
    1.2.8 Persistent oils include:
    (1) A petroleum-based oil that does not meet the distillation 
criteria for a non-persistent oil. Persistent oils are further 
classified based on specific gravity as follows:
    (A) Group 2--specific gravity less than 0.85;
    (B) Group 3--specific gravity equal to or greater than 0.85 and less 
than 0.95;
    (C) Group 4--specific gravity equal to or greater than 0.95 and less 
than 1.0; or
    (D) Group 5--specific gravity equal to or greater than 1.0.
    (2) A non-petroleum oil, other than an animal fat or vegetable oil, 
with a specific gravity of 0.8 or greater. These oils are further 
classified based on specific gravity as follows:
    (A) Group 2--specific gravity equal to or greater than 0.8 and less 
than 0.85;
    (B) Group 3--specific gravity equal to or greater than 0.85 and less 
than 0.95;
    (C) Group 4--specific gravity equal to or greater than 0.95 and less 
than 1.0; or
    (D) Group 5--specific gravity equal to or greater than 1.0.
    1.2.9 Vegetable oil means a non-petroleum oil or fat of vegetable 
origin, including but not limited to oils and fats derived from plant 
seeds, nuts, fruits, and kernels. Vegetable oils are further classified 
based on specific gravity as follows:
    (1) Group A--specific gravity less than 0.8.
    (2) Group B--specific gravity equal to or greater than 0.8 and less 
than 1.0.
    (3) Group C--specific gravity equal to or greater than 1.0.
    1.2.10 Other definitions are included in Sec. 112.2, section 1.1 of 
Appendix C, and section 3.0 of Appendix F.

                 2.0 Equipment Operability and Readiness

    2.1 All equipment identified in a response plan must be designed to 
operate in the conditions expected in the facility's geographic area 
(i.e., operating environment). These conditions vary widely based on 
location and season. Therefore, it is difficult to identify a single 
stockpile of response equipment that will function effectively in each 
geographic location (i.e., operating area).
    2.2 Facilities handling, storing, or transporting oil in more than 
one operating environment as indicated in Table 1 of this appendix must 
identify equipment capable of successfully functioning in each operating 
environment.

[[Page 74]]

    2.3 When identifying equipment for the response plan (based on the 
use of this appendix), a facility owner or operator must consider the 
inherent limitations of the operability of equipment components and 
response systems. The criteria in Table 1 of this appendix shall be used 
to evaluate the operability in a given environment. These criteria 
reflect the general conditions in certain operating environments.
    2.3.1 The Regional Administrator may require documentation that the 
boom identified in a facility response plan meets the criteria in Table 
1 of this appendix. Absent acceptable documentation, the Regional 
Administrator may require that the boom be tested to demonstrate that it 
meets the criteria in Table 1 of this appendix. Testing must be in 
accordance with ASTM F 715, ASTM F 989, or other tests approved by EPA 
as deemed appropriate (see Appendix E to this part, section 13, for 
general availability of documents).
    2.4 Table 1 of this appendix lists criteria for oil recovery devices 
and boom. All other equipment necessary to sustain or support response 
operations in an operating environment must be designed to function in 
the same conditions. For example, boats that deploy or support skimmers 
or boom must be capable of being safely operated in the significant wave 
heights listed for the applicable operating environment.
    2.5 A facility owner or operator shall refer to the applicable Area 
Contingency Plan (ACP), where available, to determine if ice, debris, 
and weather-related visibility are significant factors to evaluate the 
operability of equipment. The ACP may also identify the average 
temperature ranges expected in the facility's operating area. All 
equipment identified in a response plan must be designed to operate 
within those conditions or ranges.
    2.6 This appendix provides information on response resource 
mobilization and response times. The distance of the facility from the 
storage location of the response resources must be used to determine 
whether the resources can arrive on-scene within the stated time. A 
facility owner or operator shall include the time for notification, 
mobilization, and travel of resources identified to meet the medium and 
Tier 1 worst case discharge requirements identified in sections 4.3 and 
9.3 of this appendix (for medium discharges) and section 5.3 of this 
appendix (for worst case discharges). The facility owner or operator 
must plan for notification and mobilization of Tier 2 and 3 response 
resources as necessary to meet the requirements for arrival on-scene in 
accordance with section 5.3 of this appendix. An on-water speed of 5 
knots and a land speed of 35 miles per hour is assumed, unless the 
facility owner or operator can demonstrate otherwise.
    2.7 In identifying equipment, the facility owner or operator shall 
list the storage location, quantity, and manufacturer's make and model. 
For oil recovery devices, the effective daily recovery capacity, as 
determined using section 6 of this appendix, must be included. For boom, 
the overall boom height (draft and freeboard) shall be included. A 
facility owner or operator is responsible for ensuring that the 
identified boom has compatible connectors.

   3.0 Determining Response Resources Required for Small Discharges--
    Petroleum Oils and Non-Petroleum Oils Other Than Animal Fats and 
                             Vegetable Oils

    3.1 A facility owner or operator shall identify sufficient response 
resources available, by contract or other approved means as described in 
Sec. 112.2, to respond to a small discharge. A small discharge is 
defined as any discharge volume less than or equal to 2,100 gallons, but 
not to exceed the calculated worst case discharge. The equipment must be 
designed to function in the operating environment at the point of 
expected use.
    3.2 Complexes that are regulated by EPA and the United States Coast 
Guard (USCG) must also consider planning quantities for the 
transportation-related transfer portion of the facility.
    3.2.1 Petroleum oils. The USCG planning level that corresponds to 
EPA's ``small discharge'' is termed ``the average most probable 
discharge.'' A USCG rule found at 33 CFR 154.1020 defines ``the average 
most probable discharge'' as the lesser of 50 barrels (2,100 gallons) or 
1 percent of the volume of the worst case discharge. Owners or operators 
of complexes that handle, store, or transport petroleum oils must 
compare oil discharge volumes for a small discharge and an average most 
probable discharge, and plan for whichever quantity is greater.
    3.2.2 Non-petroleum oils other than animal fats and vegetable oils. 
Owners or operators of complexes that handle, store, or transport non-
petroleum oils other than animal fats and vegetable oils must plan for 
oil discharge volumes for a small discharge. There is no USCG planning 
level that directly corresponds to EPA's ``small discharge.'' However, 
the USCG (at 33 CFR 154.545) has requirements to identify equipment to 
contain oil resulting from an operational discharge.
    3.3 The response resources shall, as appropriate, include:
    3.3.1 One thousand feet of containment boom (or, for complexes with 
marine transfer components, 1,000 feet of containment boom or two times 
the length of the largest vessel that regularly conducts oil transfers 
to or from the facility, whichever is greater), and a means of deploying 
it within 1 hour of the discovery of a discharge;
    3.3.2 Oil recovery devices with an effective daily recovery capacity 
equal to the amount of oil discharged in a small discharge or greater 
which is available at the

[[Page 75]]

facility within 2 hours of the detection of an oil discharge; and
    3.3.3 Oil storage capacity for recovered oily material indicated in 
section 12.2 of this appendix.

   4.0 Determining Response Resources Required for Medium Discharges--
    Petroleum Oils and Non-Petroleum Oils Other Than Animal Fats and 
                             Vegetable Oils

    4.1 A facility owner or operator shall identify sufficient response 
resources available, by contract or other approved means as described in 
Sec. 112.2, to respond to a medium discharge of oil for that facility. 
This will require response resources capable of containing and 
collecting up to 36,000 gallons of oil or 10 percent of the worst case 
discharge, whichever is less. All equipment identified must be designed 
to operate in the applicable operating environment specified in Table 1 
of this appendix.
    4.2 Complexes that are regulated by EPA and the USCG must also 
consider planning quantities for the transportation-related transfer 
portion of the facility.
    4.2.1 Petroleum oils. The USCG planning level that corresponds to 
EPA's ``medium discharge'' is termed ``the maximum most probable 
discharge.'' The USCG rule found at 33 CFR part 154 defines ``the 
maximum most probable discharge'' as a discharge of 1,200 barrels 
(50,400 gallons) or 10 percent of the worst case discharge, whichever is 
less. Owners or operators of complexes that handle, store, or transport 
petroleum oils must compare calculated discharge volumes for a medium 
discharge and a maximum most probable discharge, and plan for whichever 
quantity is greater.
    4.2.2 Non-petroleum oils other than animal fats and vegetable oils. 
Owners or operators of complexes that handle, store, or transport non-
petroleum oils other than animal fats and vegetable oils must plan for 
oil discharge volumes for a medium discharge. For non-petroleum oils, 
there is no USCG planning level that directly corresponds to EPA's 
``medium discharge.''
    4.3 Oil recovery devices identified to meet the applicable medium 
discharge volume planning criteria must be located such that they are 
capable of arriving on-scene within 6 hours in higher volume port areas 
and the Great Lakes and within 12 hours in all other areas. Higher 
volume port areas and Great Lakes areas are defined in section 1.1 of 
Appendix C to this part.
    4.4 Because rapid control, containment, and removal of oil are 
critical to reduce discharge impact, the owner or operator must 
determine response resources using an effective daily recovery capacity 
for oil recovery devices equal to 50 percent of the planning volume 
applicable for the facility as determined in section 4.1 of this 
appendix. The effective daily recovery capacity for oil recovery devices 
identified in the plan must be determined using the criteria in section 
6 of this appendix.
    4.5 In addition to oil recovery capacity, the plan shall, as 
appropriate, identify sufficient quantity of containment boom available, 
by contract or other approved means as described in Sec. 112.2, to 
arrive within the required response times for oil collection and 
containment and for protection of fish and wildlife and sensitive 
environments. For further description of fish and wildlife and sensitive 
environments, see Appendices I, II, and III to DOC/NOAA's ``Guidance for 
Facility and Vessel Response Plans: Fish and Wildlife and Sensitive 
Environments'' (see Appendix E to this part, section 13, for 
availability) and the applicable ACP. Although 40 CFR part 112 does not 
set required quantities of boom for oil collection and containment, the 
response plan shall identify and ensure, by contract or other approved 
means as described in Sec. 112.2, the availability of the quantity of 
boom identified in the plan for this purpose.
    4.6 The plan must indicate the availability of temporary storage 
capacity to meet section 12.2 of this appendix. If available storage 
capacity is insufficient to meet this level, then the effective daily 
recovery capacity must be derated (downgraded) to the limits of the 
available storage capacity.
    4.7 The following is an example of a medium discharge volume 
planning calculation for equipment identification in a higher volume 
port area: The facility's largest aboveground storage tank volume is 
840,000 gallons. Ten percent of this capacity is 84,000 gallons. Because 
10 percent of the facility's largest tank, or 84,000 gallons, is greater 
than 36,000 gallons, 36,000 gallons is used as the planning volume. The 
effective daily recovery capacity is 50 percent of the planning volume, 
or 18,000 gallons per day. The ability of oil recovery devices to meet 
this capacity must be calculated using the procedures in section 6 of 
this appendix. Temporary storage capacity available on-scene must equal 
twice the daily recovery capacity as indicated in section 12.2 of this 
appendix, or 36,000 gallons per day. This is the information the 
facility owner or operator must use to identify and ensure the 
availability of the required response resources, by contract or other 
approved means as described in Sec. 112.2. The facility owner shall 
also identify how much boom is available for use.

5.0 Determining Response Resources Required for the Worst Case Discharge 
                    to the Maximum Extent Practicable

    5.1 A facility owner or operator shall identify and ensure the 
availability of, by

[[Page 76]]

contract or other approved means as described in Sec. 112.2, sufficient 
response resources to respond to the worst case discharge of oil to the 
maximum extent practicable. Sections 7 and 10 of this appendix describe 
the method to determine the necessary response resources. Worksheets are 
provided as Attachments E-1 and E-2 at the end of this appendix to 
simplify the procedures involved in calculating the planning volume for 
response resources for the worst case discharge.
    5.1 A facility owner or operator shall identify and ensure the 
availability of, by contract or other approved means as described in 
Sec. 112.2, sufficient response resources to respond to the worst case 
discharge of oil to the maximum extent practicable. Sections 7 and 10 of 
this appendix describe the method to determine the necessary response 
resources. Worksheets are provided as Attachments E-1 and E-2 at the end 
of this appendix to simplify the procedures involved in calculating the 
planning volume for response resources for the worst case discharge.
    5.2 Complexes that are regulated by EPA and the USCG must also 
consider planning for the worst case discharge at the transportation-
related portion of the facility. The USCG requires that transportation-
related facility owners or operators use a different calculation for the 
worst case discharge in the revisions to 33 CFR part 154. Owners or 
operators of complex facilities that are regulated by EPA and the USCG 
must compare both calculations of worst case discharge derived by EPA 
and the USCG and plan for whichever volume is greater.
    5.3 Oil discharge response resources identified in the response plan 
and available, by contract or other approved means as described in Sec. 
112.2, to meet the applicable worst case discharge planning volume must 
be located such that they are capable of arriving at the scene of a 
discharge within the times specified for the applicable response tier 
listed as follows

----------------------------------------------------------------------------------------------------------------
                                                                           Tier 1  (in  Tier 2  (in  Tier 3  (in
                                                                              hours)       hours)       hours)
----------------------------------------------------------------------------------------------------------------
Higher volume port areas.................................................            6           30           54
Great Lakes..............................................................           12           36           60
All other river and canal, inland, and nearshore areas...................           12           36           60
----------------------------------------------------------------------------------------------------------------

    The three levels of response tiers apply to the amount of time in 
which facility owners or operators must plan for response resources to 
arrive at the scene of a discharge to respond to the worst case 
discharge planning volume. For example, at a worst case discharge in an 
inland area, the first tier of response resources (i.e., that amount of 
on-water and shoreline cleanup capacity necessary to respond to the 
fraction of the worst case discharge as indicated through the series of 
steps described in sections 7.2 and 7.3 or sections 10.2 and 10.3 of 
this appendix) would arrive at the scene of the discharge within 12 
hours; the second tier of response resources would arrive within 36 
hours; and the third tier of response resources would arrive within 60 
hours.
    5.4 The effective daily recovery capacity for oil recovery devices 
identified in the response plan must be determined using the criteria in 
section 6 of this appendix. A facility owner or operator shall identify 
the storage locations of all response resources used for each tier. The 
owner or operator of a facility whose required daily recovery capacity 
exceeds the applicable contracting caps in Table 5 of this appendix 
shall, as appropriate, identify sources of additional equipment, their 
location, and the arrangements made to obtain this equipment during a 
response. The owner or operator of a facility whose calculated planning 
volume exceeds the applicable contracting caps in Table 5 of this 
appendix shall, as appropriate, identify sources of additional equipment 
equal to twice the cap listed in Tier 3 or the amount necessary to reach 
the calculated planning volume, whichever is lower. The resources 
identified above the cap shall be capable of arriving on-scene not later 
than the Tier 3 response times in section 5.3 of this appendix. No 
contract is required. While general listings of available response 
equipment may be used to identify additional sources (i.e., ``public'' 
resources vs. ``private'' resources), the response plan shall identify 
the specific sources, locations, and quantities of equipment that a 
facility owner or operator has considered in his or her planning. When 
listing USCG-classified oil spill removal organization(s) that have 
sufficient removal capacity to recover the volume above the response 
capacity cap for the specific facility, as specified in Table 5 of this 
appendix, it is not necessary to list specific quantities of equipment.
    5.5 A facility owner or operator shall identify the availability of 
temporary storage capacity to meet section 12.2 of this appendix. If 
available storage capacity is insufficient, then the effective daily 
recovery capacity must be derated (downgraded) to the limits of the 
available storage capacity.
    5.6 When selecting response resources necessary to meet the response 
plan requirements, the facility owner or operator shall, as appropriate, 
ensure that a portion of

[[Page 77]]

those resources is capable of being used in close-to-shore response 
activities in shallow water. For any EPA-regulated facility that is 
required to plan for response in shallow water, at least 20 percent of 
the on-water response equipment identified for the applicable operating 
area shall, as appropriate, be capable of operating in water of 6 feet 
or less depth.
    5.7 In addition to oil spill recovery devices, a facility owner or 
operator shall identify sufficient quantities of boom that are 
available, by contract or other approved means as described in Sec. 
112.2, to arrive on-scene within the specified response times for oil 
containment and collection. The specific quantity of boom required for 
collection and containment will depend on the facility-specific 
information and response strategies employed. A facility owner or 
operator shall, as appropriate, also identify sufficient quantities of 
oil containment boom to protect fish and wildlife and sensitive 
environments. For further description of fish and wildlife and sensitive 
environments, see Appendices I, II, and III to DOC/NOAA's ``Guidance for 
Facility and Vessel Response Plans: Fish and Wildlife and Sensitive 
Environments'' (see Appendix E to this part, section 13, for 
availability), and the applicable ACP. Refer to this guidance document 
for the number of days and geographic areas (i.e., operating 
environments) specified in Table 2 and Table 6 of this appendix.
    5.8 A facility owner or operator shall also identify, by contract or 
other approved means as described in Sec. 112.2, the availability of an 
oil spill removal organization(s) (as described in Sec. 112.2) capable 
of responding to a shoreline cleanup operation involving the calculated 
volume of oil and emulsified oil that might impact the affected 
shoreline. The volume of oil that shall, as appropriate, be planned for 
is calculated through the application of factors contained in Tables 2, 
3, 6, and 7 of this appendix. The volume calculated from these tables is 
intended to assist the facility owner or operator to identify an oil 
spill removal organization with sufficient resources and expertise.

   6.0 Determining Effective Daily Recovery Capacity for Oil Recovery 
                                 Devices

    6.1 Oil recovery devices identified by a facility owner or operator 
must be identified by the manufacturer, model, and effective daily 
recovery capacity. These capacities must be used to determine whether 
there is sufficient capacity to meet the applicable planning criteria 
for a small discharge, a medium discharge, and a worst case discharge to 
the maximum extent practicable.
    6.2 To determine the effective daily recovery capacity of oil 
recovery devices, the formula listed in section 6.2.1 of this appendix 
shall be used. This formula considers potential limitations due to 
available daylight, weather, sea state, and percentage of emulsified oil 
in the recovered material. The RA may assign a lower efficiency factor 
to equipment listed in a response plan if it is determined that such a 
reduction is warranted.
    6.2.1 The following formula shall be used to calculate the effective 
daily recovery capacity:

R = T x 24 hours x E

where:

R--Effective daily recovery capacity;
T--Throughput rate in barrels per hour (nameplate capacity); and
E--20 percent efficiency factor (or lower factor as determined by the 
Regional Administrator).

    6.2.2 For those devices in which the pump limits the throughput of 
liquid, throughput rate shall be calculated using the pump capacity.
    6.2.3 For belt or moptype devices, the throughput rate shall be 
calculated using the speed of the belt or mop through the device, 
assumed thickness of oil adhering to or collected by the device, and 
surface area of the belt or mop. For purposes of this calculation, the 
assumed thickness of oil will be \1/4\ inch.
    6.2.4 Facility owners or operators that include oil recovery devices 
whose throughput is not measurable using a pump capacity or belt/mop 
speed may provide information to support an alternative method of 
calculation. This information must be submitted following the procedures 
in section 6.3.2 of this appendix.
    6.3 As an alternative to section 6.2 of this appendix, a facility 
owner or operator may submit adequate evidence that a different 
effective daily recovery capacity should be applied for a specific oil 
recovery device. Adequate evidence is actual verified performance data 
in discharge conditions or tests using American Society of Testing and 
Materials (ASTM) Standard F 631-99, F 808-83 (1999), or an equivalent 
test approved by EPA as deemed appropriate (see Appendix E to this part, 
section 13, for general availability of documents).
    6.3.1 The following formula must be used to calculate the effective 
daily recovery capacity under this alternative:

R = D x U

where:
R--Effective daily recovery capacity;
D--Average Oil Recovery Rate in barrels per hour (Item 26 in F 808-83; 
Item 13.2.16 in F 631-99; or actual performance data); and
U--Hours per day that equipment can operate under discharge conditions. 
Ten hours per day must be used unless a facility owner or operator can 
demonstrate that the recovery operation can be sustained for longer 
periods.

[[Page 78]]

    6.3.2 A facility owner or operator submitting a response plan shall 
provide data that supports the effective daily recovery capacities for 
the oil recovery devices listed. The following is an example of these 
calculations:
    (1) A weir skimmer identified in a response plan has a 
manufacturer's rated throughput at the pump of 267 gallons per minute 
(gpm).

267 gpm=381 barrels per hour (bph)
R=381 bphx24 hr/dayx0.2=1,829 barrels per day

    (2) After testing using ASTM procedures, the skimmer's oil recovery 
rate is determined to be 220 gpm. The facility owner or operator 
identifies sufficient resources available to support operations for 12 
hours per day.

220 gpm=314 bph
R=314 bphx12 hr/day=3,768 barrels per day

    (3) The facility owner or operator will be able to use the higher 
capacity if sufficient temporary oil storage capacity is available. 
Determination of alternative efficiency factors under section 6.2 of 
this appendix or the acceptability of an alternative effective daily 
recovery capacity under section 6.3 of this appendix will be made by the 
Regional Administrator as deemed appropriate.

 7.0 Calculating Planning Volumes for a Worst Case Discharge--Petroleum 
  Oils and Non-Petroleum Oils Other Than Animal Fats and Vegetable Oils

    7.1 A facility owner or operator shall plan for a response to the 
facility's worst case discharge. The planning for on-water oil recovery 
must take into account a loss of some oil to the environment due to 
evaporative and natural dissipation, potential increases in volume due 
to emulsification, and the potential for deposition of oil on the 
shoreline. The procedures for non-petroleum oils other than animal fats 
and vegetable oils are discussed in section 7.7 of this appendix.
    7.2 The following procedures must be used by a facility owner or 
operator in determining the required on-water oil recovery capacity:
    7.2.1 The following must be determined: the worst case discharge 
volume of oil in the facility; the appropriate group(s) for the types of 
oil handled, stored, or transported at the facility [persistent (Groups 
2, 3, 4, 5) or non-persistent (Group 1)]; and the facility's specific 
operating area. See sections 1.2.3 and 1.2.8 of this appendix for the 
definitions of non-persistent and persistent oils, respectively. 
Facilities that handle, store, or transport oil from different oil 
groups must calculate each group separately, unless the oil group 
constitutes 10 percent or less by volume of the facility's total oil 
storage capacity. This information is to be used with Table 2 of this 
appendix to determine the percentages of the total volume to be used for 
removal capacity planning. Table 2 of this appendix divides the volume 
into three categories: oil lost to the environment; oil deposited on the 
shoreline; and oil available for on-water recovery.
    7.2.2 The on-water oil recovery volume shall, as appropriate, be 
adjusted using the appropriate emulsification factor found in Table 3 of 
this appendix. Facilities that handle, store, or transport oil from 
different petroleum groups must compare the on-water recovery volume for 
each oil group (unless the oil group constitutes 10 percent or less by 
volume of the facility's total storage capacity) and use the calculation 
that results in the largest on-water oil recovery volume to plan for the 
amount of response resources for a worst case discharge.
    7.2.3 The adjusted volume is multiplied by the on-water oil recovery 
resource mobilization factor found in Table 4 of this appendix from the 
appropriate operating area and response tier to determine the total on-
water oil recovery capacity in barrels per day that must be identified 
or contracted to arrive on-scene within the applicable time for each 
response tier. Three tiers are specified. For higher volume port areas, 
the contracted tiers of resources must be located such that they are 
capable of arriving on-scene within 6 hours for Tier 1, 30 hours for 
Tier 2, and 54 hours for Tier 3 of the discovery of an oil discharge. 
For all other rivers and canals, inland, nearshore areas, and the Great 
Lakes, these tiers are 12, 36, and 60 hours.
    7.2.4 The resulting on-water oil recovery capacity in barrels per 
day for each tier is used to identify response resources necessary to 
sustain operations in the applicable operating area. The equipment shall 
be capable of sustaining operations for the time period specified in 
Table 2 of this appendix. The facility owner or operator shall identify 
and ensure the availability, by contract or other approved means as 
described in Sec. 112.2, of sufficient oil spill recovery devices to 
provide the effective daily oil recovery capacity required. If the 
required capacity exceeds the applicable cap specified in Table 5 of 
this appendix, then a facility owner or operator shall ensure, by 
contract or other approved means as described in Sec. 112.2, only for 
the quantity of resources required to meet the cap, but shall identify 
sources of additional resources as indicated in section 5.4 of this 
appendix. The owner or operator of a facility whose planning volume 
exceeded the cap in 1993 must make arrangements to identify and ensure 
the availability, by contract or other approved means as described in 
Sec. 112.2, for additional capacity to be under contract by 1998 or 
2003, as appropriate. For a facility that handles multiple groups of 
oil, the required effective daily recovery capacity for each oil group 
is calculated before applying the cap. The oil group calculation 
resulting in the largest on-water recovery volume

[[Page 79]]

must be used to plan for the amount of response resources for a worst 
case discharge, unless the oil group comprises 10 percent or less by 
volume of the facility's total oil storage capacity.
    7.3 The procedures discussed in sections 7.3.1-7.3.3 of this 
appendix must be used to calculate the planning volume for identifying 
shoreline cleanup capacity (for Group 1 through Group 4 oils).
    7.3.1 The following must be determined: the worst case discharge 
volume of oil for the facility; the appropriate group(s) for the types 
of oil handled, stored, or transported at the facility [persistent 
(Groups 2, 3, or 4) or non-persistent (Group 1)]; and the geographic 
area(s) in which the facility operates (i.e., operating areas). For a 
facility handling, storing, or transporting oil from different groups, 
each group must be calculated separately. Using this information, Table 
2 of this appendix must be used to determine the percentages of the 
total volume to be used for shoreline cleanup resource planning.
    7.3.2 The shoreline cleanup planning volume must be adjusted to 
reflect an emulsification factor using the same procedure as described 
in section 7.2.2 of this appendix.
    7.3.3 The resulting volume shall be used to identify an oil spill 
removal organization with the appropriate shoreline cleanup capability.
    7.4 A response plan must identify response resources with fire 
fighting capability. The owner or operator of a facility that handles, 
stores, or transports Group 1 through Group 4 oils that does not have 
adequate fire fighting resources located at the facility or that cannot 
rely on sufficient local fire fighting resources must identify adequate 
fire fighting resources. The facility owner or operator shall ensure, by 
contract or other approved means as described in Sec. 112.2, the 
availability of these resources. The response plan must also identify an 
individual located at the facility to work with the fire department for 
Group 1 through Group 4 oil fires. This individual shall also verify 
that sufficient well-trained fire fighting resources are available 
within a reasonable response time to a worst case scenario. The 
individual may be the qualified individual identified in the response 
plan or another appropriate individual located at the facility.
    7.5 The following is an example of the procedure described above in 
sections 7.2 and 7.3 of this appendix: A facility with a 270,000 barrel 
(11.3 million gallons) capacity for 6 oil (specific gravity 
0.96) is located in a higher volume port area. The facility is on a 
peninsula and has docks on both the ocean and bay sides. The facility 
has four aboveground oil storage tanks with a combined total capacity of 
80,000 barrels (3.36 million gallons) and no secondary containment. The 
remaining facility tanks are inside secondary containment structures. 
The largest aboveground oil storage tank (90,000 barrels or 3.78 million 
gallons) has its own secondary containment. Two 50,000 barrel (2.1 
million gallon) tanks (that are not connected by a manifold) are within 
a common secondary containment tank area, which is capable of holding 
100,000 barrels (4.2 million gallons) plus sufficient freeboard.
    7.5.1 The worst case discharge for the facility is calculated by 
adding the capacity of all aboveground oil storage tanks without 
secondary containment (80,000 barrels) plus the capacity of the largest 
aboveground oil storage tank inside secondary containment. The resulting 
worst case discharge volume is 170,000 barrels or 7.14 million gallons.
    7.5.2 Because the requirements for Tiers 1, 2, and 3 for inland and 
nearshore exceed the caps identified in Table 5 of this appendix, the 
facility owner will contract for a response to 10,000 barrels per day 
(bpd) for Tier 1, 20,000 bpd for Tier 2, and 40,000 bpd for Tier 3. 
Resources for the remaining 7,850 bpd for Tier 1, 9,750 bpd for Tier 2, 
and 7,600 bpd for Tier 3 shall be identified but need not be contracted 
for in advance. The facility owner or operator shall, as appropriate, 
also identify or contract for quantities of boom identified in their 
response plan for the protection of fish and wildlife and sensitive 
environments within the area potentially impacted by a worst case 
discharge from the facility. For further description of fish and 
wildlife and sensitive environments, see Appendices I, II, and III to 
DOC/NOAA's ``Guidance for Facility and Vessel Response Plans: Fish and 
Wildlife and Sensitive Environments,'' (see Appendix E to this part, 
section 13, for availability) and the applicable ACP. Attachment C-III 
to Appendix C provides a method for calculating a planning distance to 
fish and wildlife and sensitive environments and public drinking water 
intakes that may be impacted in the event of a worst case discharge.
    7.6 The procedures discussed in sections 7.6.1-7.6.3 of this 
appendix must be used to determine appropriate response resources for 
facilities with Group 5 oils.
    7.6.1 The owner or operator of a facility that handles, stores, or 
transports Group 5 oils shall, as appropriate, identify the response 
resources available by contract or other approved means, as described in 
Sec. 112.2. The equipment identified in a response plan shall, as 
appropriate, include:
    (1) Sonar, sampling equipment, or other methods for locating the oil 
on the bottom or suspended in the water column;
    (2) Containment boom, sorbent boom, silt curtains, or other methods 
for containing the oil that may remain floating on the surface or to 
reduce spreading on the bottom;
    (3) Dredges, pumps, or other equipment necessary to recover oil from 
the bottom and shoreline;

[[Page 80]]

    (4) Equipment necessary to assess the impact of such discharges; and
    (5) Other appropriate equipment necessary to respond to a discharge 
involving the type of oil handled, stored,, or transported.
    7.6.2 Response resources identified in a response plan for a 
facility that handles, stores, or transports Group 5 oils under section 
7.6.1 of this appendix shall be capable of being deployed (on site) 
within 24 hours of discovery of a discharge to the area where the 
facility is operating.
    7.6.3 A response plan must identify response resources with fire 
fighting capability. The owner or operator of a facility that handles, 
stores, or transports Group 5 oils that does not have adequate fire 
fighting resources located at the facility or that cannot rely on 
sufficient local fire fighting resources must identify adequate fire 
fighting resources. The facility owner or operator shall ensure, by 
contract or other approved means as described in Sec. 112.2, the 
availability of these resources. The response plan shall also identify 
an individual located at the facility to work with the fire department 
for Group 5 oil fires. This individual shall also verify that sufficient 
well-trained fire fighting resources are available within a reasonable 
response time to respond to a worst case discharge. The individual may 
be the qualified individual identified in the response plan or another 
appropriate individual located at the facility.
    7.7 Non-petroleum oils other than animal fats and vegetable oils. 
The procedures described in sections 7.7.1 through 7.7.5 of this 
appendix must be used to determine appropriate response plan development 
and evaluation criteria for facilities that handle, store, or transport 
non-petroleum oils other than animal fats and vegetable oils. Refer to 
section 11 of this appendix for information on the limitations on the 
use of chemical agents for inland and nearshore areas.
    7.7.1 An owner or operator of a facility that handles, stores, or 
transports non-petroleum oils other than animal fats and vegetable oils 
must provide information in his or her plan that identifies:
    (1) Procedures and strategies for responding to a worst case 
discharge to the maximum extent practicable; and
    (2) Sources of the equipment and supplies necessary to locate, 
recover, and mitigate such a discharge.
    7.7.2 An owner or operator of a facility that handles, stores, or 
transports non-petroleum oils other than animal fats and vegetable oils 
must ensure that any equipment identified in a response plan is capable 
of operating in the conditions expected in the geographic area(s) (i.e., 
operating environments) in which the facility operates using the 
criteria in Table 1 of this appendix. When evaluating the operability of 
equipment, the facility owner or operator must consider limitations that 
are identified in the appropriate ACPs, including:
    (1) Ice conditions;
    (2) Debris;
    (3) Temperature ranges; and
    (4) Weather-related visibility.
    7.7.3 The owner or operator of a facility that handles, stores, or 
transports non-petroleum oils other than animal fats and vegetable oils 
must identify the response resources that are available by contract or 
other approved means, as described in Sec. 112.2. The equipment 
described in the response plan shall, as appropriate, include:
    (1) Containment boom, sorbent boom, or other methods for containing 
oil floating on the surface or to protect shorelines from impact;
    (2) Oil recovery devices appropriate for the type of non-petroleum 
oil carried; and
    (3) Other appropriate equipment necessary to respond to a discharge 
involving the type of oil carried.
    7.7.4 Response resources identified in a response plan according to 
section 7.7.3 of this appendix must be capable of commencing an 
effective on-scene response within the applicable tier response times in 
section 5.3 of this appendix.
    7.7.5 A response plan must identify response resources with fire 
fighting capability. The owner or operator of a facility that handles, 
stores, or transports non-petroleum oils other than animal fats and 
vegetable oils that does not have adequate fire fighting resources 
located at the facility or that cannot rely on sufficient local fire 
fighting resources must identify adequate fire fighting resources. The 
owner or operator shall ensure, by contract or other approved means as 
described in Sec. 112.2, the availability of these resources. The 
response plan must also identify an individual located at the facility 
to work with the fire department for fires of these oils. This 
individual shall also verify that sufficient well-trained fire fighting 
resources are available within a reasonable response time to a worst 
case scenario. The individual may be the qualified individual identified 
in the response plan or another appropriate individual located at the 
facility.

8.0 Determining Response Resources Required for Small Discharges--Animal 
                         Fats and Vegetable Oils

    8.1 A facility owner or operator shall identify sufficient response 
resources available, by contract or other approved means as described in 
Sec. 112.2, to respond to a small discharge of animal fats or vegetable 
oils. A small discharge is defined as any discharge volume less than or 
equal to 2,100 gallons, but not to exceed the calculated worst case 
discharge. The equipment must be designed to function in the operating 
environment at the point of expected use.

[[Page 81]]

    8.2 Complexes that are regulated by EPA and the USCG must also 
consider planning quantities for the marine transportation-related 
portion of the facility.
    8.2.1 The USCG planning level that corresponds to EPA's ``small 
discharge'' is termed ``the average most probable discharge.'' A USCG 
rule found at 33 CFR 154.1020 defines ``the average most probable 
discharge'' as the lesser of 50 barrels (2,100 gallons) or 1 percent of 
the volume of the worst case discharge. Owners or operators of complexes 
that handle, store, or transport animal fats and vegetable oils must 
compare oil discharge volumes for a small discharge and an average most 
probable discharge, and plan for whichever quantity is greater.
    8.3 The response resources shall, as appropriate, include:
    8.3.1 One thousand feet of containment boom (or, for complexes with 
marine transfer components, 1,000 feet of containment boom or two times 
the length of the largest vessel that regularly conducts oil transfers 
to or from the facility, whichever is greater), and a means of deploying 
it within 1 hour of the discovery of a discharge;
    8.3.2 Oil recovery devices with an effective daily recovery capacity 
equal to the amount of oil discharged in a small discharge or greater 
which is available at the facility within 2 hours of the detection of a 
discharge; and
    8.3.3 Oil storage capacity for recovered oily material indicated in 
section 12.2 of this appendix.

   9.0 Determining Response Resources Required for Medium Discharges--
                     Animal Fats and Vegetable Oils

    9.1 A facility owner or operator shall identify sufficient response 
resources available, by contract or other approved means as described in 
Sec. 112.2, to respond to a medium discharge of animal fats or 
vegetable oils for that facility. This will require response resources 
capable of containing and collecting up to 36,000 gallons of oil or 10 
percent of the worst case discharge, whichever is less. All equipment 
identified must be designed to operate in the applicable operating 
environment specified in Table 1 of this appendix.
    9.2 Complexes that are regulated by EPA and the USCG must also 
consider planning quantities for the transportation-related transfer 
portion of the facility. Owners or operators of complexes that handle, 
store, or transport animal fats or vegetable oils must plan for oil 
discharge volumes for a medium discharge. For non-petroleum oils, there 
is no USCG planning level that directly corresponds to EPA's ``medium 
discharge.'' Although the USCG does not have planning requirements for 
medium discharges, they do have requirements (at 33 CFR 154.545) to 
identify equipment to contain oil resulting from an operational 
discharge.
    9.3 Oil recovery devices identified to meet the applicable medium 
discharge volume planning criteria must be located such that they are 
capable of arriving on-scene within 6 hours in higher volume port areas 
and the Great Lakes and within 12 hours in all other areas. Higher 
volume port areas and Great Lakes areas are defined in section 1.1 of 
Appendix C to this part.
    9.4 Because rapid control, containment, and removal of oil are 
critical to reduce discharge impact, the owner or operator must 
determine response resources using an effective daily recovery capacity 
for oil recovery devices equal to 50 percent of the planning volume 
applicable for the facility as determined in section 9.1 of this 
appendix. The effective daily recovery capacity for oil recovery devices 
identified in the plan must be determined using the criteria in section 
6 of this appendix.
    9.5 In addition to oil recovery capacity, the plan shall, as 
appropriate, identify sufficient quantity of containment boom available, 
by contract or other approved means as described in Sec. 112.2, to 
arrive within the required response times for oil collection and 
containment and for protection of fish and wildlife and sensitive 
environments. For further description of fish and wildlife and sensitive 
environments, see Appendices I, II, and III to DOC/NOAA's ``Guidance for 
Facility and Vessel Response Plans: Fish and Wildlife and Sensitive 
Environments'' (59 FR 14713-22, March 29, 1994) and the applicable ACP. 
Although 40 CFR part 112 does not set required quantities of boom for 
oil collection and containment, the response plan shall identify and 
ensure, by contract or other approved means as described in Sec. 112.2, 
the availability of the quantity of boom identified in the plan for this 
purpose.
    9.6 The plan must indicate the availability of temporary storage 
capacity to meet section 12.2 of this appendix. If available storage 
capacity is insufficient to meet this level, then the effective daily 
recovery capacity must be derated (downgraded) to the limits of the 
available storage capacity.
    9.7 The following is an example of a medium discharge volume 
planning calculation for equipment identification in a higher volume 
port area:
    The facility's largest aboveground storage tank volume is 840,000 
gallons. Ten percent of this capacity is 84,000 gallons. Because 10 
percent of the facility's largest tank, or 84,000 gallons, is greater 
than 36,000 gallons, 36,000 gallons is used as the planning volume. The 
effective daily recovery capacity is 50 percent of the planning volume, 
or 18,000 gallons per day. The ability of oil recovery devices to meet 
this capacity must be calculated using the procedures in section 6 of 
this appendix. Temporary storage capacity available on-scene must equal 
twice the

[[Page 82]]

daily recovery capacity as indicated in section 12.2 of this appendix, 
or 36,000 gallons per day. This is the information the facility owner or 
operator must use to identify and ensure the availability of the 
required response resources, by contract or other approved means as 
described in Sec. 112.2. The facility owner shall also identify how 
much boom is available for use.

  10.0 Calculating Planning Volumes for a Worst Case Discharge--Animal 
                        Fats and Vegetable Oils.

    10.1 A facility owner or operator shall plan for a response to the 
facility's worst case discharge. The planning for on-water oil recovery 
must take into account a loss of some oil to the environment due to 
physical, chemical, and biological processes, potential increases in 
volume due to emulsification, and the potential for deposition of oil on 
the shoreline or on sediments. The response planning procedures for 
animal fats and vegetable oils are discussed in section 10.7 of this 
appendix. You may use alternate response planning procedures for animal 
fats and vegetable oils if those procedures result in environmental 
protection equivalent to that provided by the procedures in section 10.7 
of this appendix.
    10.2 The following procedures must be used by a facility owner or 
operator in determining the required on-water oil recovery capacity:
    10.2.1 The following must be determined: the worst case discharge 
volume of oil in the facility; the appropriate group(s) for the types of 
oil handled, stored, or transported at the facility (Groups A, B, C); 
and the facility's specific operating area. See sections 1.2.1 and 1.2.9 
of this appendix for the definitions of animal fats and vegetable oils 
and groups thereof. Facilities that handle, store, or transport oil from 
different oil groups must calculate each group separately, unless the 
oil group constitutes 10 percent or less by volume of the facility's 
total oil storage capacity. This information is to be used with Table 6 
of this appendix to determine the percentages of the total volume to be 
used for removal capacity planning. Table 6 of this appendix divides the 
volume into three categories: oil lost to the environment; oil deposited 
on the shoreline; and oil available for on-water recovery.
    10.2.2 The on-water oil recovery volume shall, as appropriate, be 
adjusted using the appropriate emulsification factor found in Table 7 of 
this appendix. Facilities that handle, store, or transport oil from 
different groups must compare the on-water recovery volume for each oil 
group (unless the oil group constitutes 10 percent or less by volume of 
the facility's total storage capacity) and use the calculation that 
results in the largest on-water oil recovery volume to plan for the 
amount of response resources for a worst case discharge.
    10.2.3 The adjusted volume is multiplied by the on-water oil 
recovery resource mobilization factor found in Table 4 of this appendix 
from the appropriate operating area and response tier to determine the 
total on-water oil recovery capacity in barrels per day that must be 
identified or contracted to arrive on-scene within the applicable time 
for each response tier. Three tiers are specified. For higher volume 
port areas, the contracted tiers of resources must be located such that 
they are capable of arriving on-scene within 6 hours for Tier 1, 30 
hours for Tier 2, and 54 hours for Tier 3 of the discovery of a 
discharge. For all other rivers and canals, inland, nearshore areas, and 
the Great Lakes, these tiers are 12, 36, and 60 hours.
    10.2.4 The resulting on-water oil recovery capacity in barrels per 
day for each tier is used to identify response resources necessary to 
sustain operations in the applicable operating area. The equipment shall 
be capable of sustaining operations for the time period specified in 
Table 6 of this appendix. The facility owner or operator shall identify 
and ensure, by contract or other approved means as described in Sec. 
112.2, the availability of sufficient oil spill recovery devices to 
provide the effective daily oil recovery capacity required. If the 
required capacity exceeds the applicable cap specified in Table 5 of 
this appendix, then a facility owner or operator shall ensure, by 
contract or other approved means as described in Sec. 112.2, only for 
the quantity of resources required to meet the cap, but shall identify 
sources of additional resources as indicated in section 5.4 of this 
appendix. The owner or operator of a facility whose planning volume 
exceeded the cap in 1998 must make arrangements to identify and ensure, 
by contract or other approved means as described in Sec. 112.2, the 
availability of additional capacity to be under contract by 2003, as 
appropriate. For a facility that handles multiple groups of oil, the 
required effective daily recovery capacity for each oil group is 
calculated before applying the cap. The oil group calculation resulting 
in the largest on-water recovery volume must be used to plan for the 
amount of response resources for a worst case discharge, unless the oil 
group comprises 10 percent or less by volume of the facility's oil 
storage capacity.
    10.3 The procedures discussed in sections 10.3.1 through 10.3.3 of 
this appendix must be used to calculate the planning volume for 
identifying shoreline cleanup capacity (for Groups A and B oils).
    10.3.1 The following must be determined: the worst case discharge 
volume of oil for the facility; the appropriate group(s) for the types 
of oil handled, stored, or transported at the facility (Groups A or B); 
and the geographic area(s) in which the facility operates

[[Page 83]]

(i.e., operating areas). For a facility handling, storing, or 
transporting oil from different groups, each group must be calculated 
separately. Using this information, Table 6 of this appendix must be 
used to determine the percentages of the total volume to be used for 
shoreline cleanup resource planning.
    10.3.2 The shoreline cleanup planning volume must be adjusted to 
reflect an emulsification factor using the same procedure as described 
in section 10.2.2 of this appendix.
    10.3.3 The resulting volume shall be used to identify an oil spill 
removal organization with the appropriate shoreline cleanup capability.
    10.4 A response plan must identify response resources with fire 
fighting capability appropriate for the risk of fire and explosion at 
the facility from the discharge or threat of discharge of oil. The owner 
or operator of a facility that handles, stores, or transports Group A or 
B oils that does not have adequate fire fighting resources located at 
the facility or that cannot rely on sufficient local fire fighting 
resources must identify adequate fire fighting resources. The facility 
owner or operator shall ensure, by contract or other approved means as 
described in Sec. 112.2, the availability of these resources. The 
response plan must also identify an individual to work with the fire 
department for Group A or B oil fires. This individual shall also verify 
that sufficient well-trained fire fighting resources are available 
within a reasonable response time to a worst case scenario. The 
individual may be the qualified individual identified in the response 
plan or another appropriate individual located at the facility.
    10.5 The following is an example of the procedure described in 
sections 10.2 and 10.3 of this appendix. A facility with a 37.04 million 
gallon (881,904 barrel) capacity of several types of vegetable oils is 
located in the Inland Operating Area. The vegetable oil with the highest 
specific gravity stored at the facility is soybean oil (specific gravity 
0.922, Group B vegetable oil). The facility has ten aboveground oil 
storage tanks with a combined total capacity of 18 million gallons 
(428,571 barrels) and without secondary containment. The remaining 
facility tanks are inside secondary containment structures. The largest 
aboveground oil storage tank (3 million gallons or 71,428 barrels) has 
its own secondary containment. Two 2.1 million gallon (50,000 barrel) 
tanks (that are not connected by a manifold) are within a common 
secondary containment tank area, which is capable of holding 4.2 million 
gallons (100,000 barrels) plus sufficient freeboard.
    10.5.1 The worst case discharge for the facility is calculated by 
adding the capacity of all aboveground vegetable oil storage tanks 
without secondary containment (18.0 million gallons) plus the capacity 
of the largest aboveground storage tank inside secondary containment 
(3.0 million gallons). The resulting worst case discharge is 21 million 
gallons or 500,000 barrels.
    10.5.2 With a specific worst case discharge identified, the planning 
volume for on-water recovery can be identified as follows:

Worst case discharge: 21 million gallons (500,000 barrels) of Group B 
vegetable oil
Operating Area: Inland
Planned percent recovered floating vegetable oil (from Table 6, column 
Nearshore/Inland/Great Lakes): Inland, Group B is 20%
Emulsion factor (from Table 7): 2.0
Planning volumes for on-water recovery: 21,000,000 gallons x 0.2 x 2.0 = 
8,400,000 gallons or 200,000 barrels.
Determine required resources for on-water recovery for each of the three 
tiers using mobilization factors (from Table 4, column Inland/Nearshore/
Great Lakes)

------------------------------------------------------------------------
           Inland Operating Area             Tier 1    Tier 2    Tier 3
------------------------------------------------------------------------
Mobilization factor by which you multiply        .15       .25       .40
 planning volume..........................
Estimated Daily Recovery Capacity (bbls)..    30,000    50,000    80,000
------------------------------------------------------------------------

    10.5.3 Because the requirements for On-Water Recovery Resources for 
Tiers 1, 2, and 3 for Inland Operating Area exceed the caps identified 
in Table 5 of this appendix, the facility owner will contract for a 
response of 12,500 barrels per day (bpd) for Tier 1, 25,000 bpd for Tier 
2, and 50,000 bpd for Tier 3. Resources for the remaining 17,500 bpd for 
Tier 1, 25,000 bpd for Tier 2, and 30,000 bpd for Tier 3 shall be 
identified but need not be contracted for in advance.
    10.5.4 With the specific worst case discharge identified, the 
planning volume of onshore recovery can be identified as follows:

Worst case discharge: 21 million gallons (500,000 barrels) of Group B 
vegetable oil
Operating Area: Inland
Planned percent recovered floating vegetable oil from onshore (from 
Table 6, column Nearshore/Inland/Great Lakes): Inland, Group B is 65%
Emulsion factor (from Table 7): 2.0
Planning volumes for shoreline recovery:
21,000,000 gallons x 0.65 x 2.0 = 27,300,000 gallons or 650,000 barrels

    10.5.5 The facility owner or operator shall, as appropriate, also 
identify or contract for quantities of boom identified in the response 
plan for the protection of fish and wildlife

[[Page 84]]

and sensitive environments within the area potentially impacted by a 
worst case discharge from the facility. For further description of fish 
and wildlife and sensitive environments, see Appendices I, II, and III 
to DOC/NOAA's ``Guidance for Facility and Vessel Response Plans: Fish 
and Wildlife and Sensitive Environments,'' (see Appendix E to this part, 
section 13, for availability) and the applicable ACP. Attachment C-III 
to Appendix C provides a method for calculating a planning distance to 
fish and wildlife and sensitive environments and public drinking water 
intakes that may be adversely affected in the event of a worst case 
discharge.
    10.6 The procedures discussed in sections 10.6.1 through 10.6.3 of 
this appendix must be used to determine appropriate response resources 
for facilities with Group C oils.
    10.6.1 The owner or operator of a facility that handles, stores, or 
transports Group C oils shall, as appropriate, identify the response 
resources available by contract or other approved means, as described in 
Sec. 112.2. The equipment identified in a response plan shall, as 
appropriate, include:
    (1) Sonar, sampling equipment, or other methods for locating the oil 
on the bottom or suspended in the water column;
    (2) Containment boom, sorbent boom, silt curtains, or other methods 
for containing the oil that may remain floating on the surface or to 
reduce spreading on the bottom;
    (3) Dredges, pumps, or other equipment necessary to recover oil from 
the bottom and shoreline;
    (4) Equipment necessary to assess the impact of such discharges; and
    (5) Other appropriate equipment necessary to respond to a discharge 
involving the type of oil handled, stored, or transported.
    10.6.2 Response resources identified in a response plan for a 
facility that handles, stores, or transports Group C oils under section 
10.6.1 of this appendix shall be capable of being deployed on scene 
within 24 hours of discovery of a discharge.
    10.6.3 A response plan must identify response resources with fire 
fighting capability. The owner or operator of a facility that handles, 
stores, or transports Group C oils that does not have adequate fire 
fighting resources located at the facility or that cannot rely on 
sufficient local fire fighting resources must identify adequate fire 
fighting resources. The owner or operator shall ensure, by contract or 
other approved means as described in Sec. 112.2, the availability of 
these resources. The response plan shall also identify an individual 
located at the facility to work with the fire department for Group C oil 
fires. This individual shall also verify that sufficient well-trained 
fire fighting resources are available within a reasonable response time 
to respond to a worst case discharge. The individual may be the 
qualified individual identified in the response plan or another 
appropriate individual located at the facility.
    10.7 The procedures described in sections 10.7.1 through 10.7.5 of 
this appendix must be used to determine appropriate response plan 
development and evaluation criteria for facilities that handle, store, 
or transport animal fats and vegetable oils. Refer to section 11 of this 
appendix for information on the limitations on the use of chemical 
agents for inland and nearshore areas.
    10.7.1 An owner or operator of a facility that handles, stores, or 
transports animal fats and vegetable oils must provide information in 
the response plan that identifies:
    (1) Procedures and strategies for responding to a worst case 
discharge of animal fats and vegetable oils to the maximum extent 
practicable; and
    (2) Sources of the equipment and supplies necessary to locate, 
recover, and mitigate such a discharge.
    10.7.2 An owner or operator of a facility that handles, stores, or 
transports animal fats and vegetable oils must ensure that any equipment 
identified in a response plan is capable of operating in the geographic 
area(s) (i.e., operating environments) in which the facility operates 
using the criteria in Table 1 of this appendix. When evaluating the 
operability of equipment, the facility owner or operator must consider 
limitations that are identified in the appropriate ACPs, including:
    (1) Ice conditions;
    (2) Debris;
    (3) Temperature ranges; and
    (4) Weather-related visibility.
    10.7.3. The owner or operator of a facility that handles, stores, or 
transports animal fats and vegetable oils must identify the response 
resources that are available by contract or other approved means, as 
described in Sec. 112.2. The equipment described in the response plan 
shall, as appropriate, include:
    (1) Containment boom, sorbent boom, or other methods for containing 
oil floating on the surface or to protect shorelines from impact;
    (2) Oil recovery devices appropriate for the type of animal fat or 
vegetable oil carried; and
    (3) Other appropriate equipment necessary to respond to a discharge 
involving the type of oil carried.
    10.7.4 Response resources identified in a response plan according to 
section 10.7.3 of this appendix must be capable of commencing an 
effective on-scene response within the applicable tier response times in 
section 5.3 of this appendix.
    10.7.5 A response plan must identify response resources with fire 
fighting capability. The owner or operator of a facility that handles, 
stores, or transports animal fats and vegetable oils that does not have 
adequate fire fighting resources located at

[[Page 85]]

the facility or that cannot rely on sufficient local fire fighting 
resources must identify adequate fire fighting resources. The owner or 
operator shall ensure, by contract or other approved means as described 
in Sec. 112.2, the availability of these resources. The response plan 
shall also identify an individual located at the facility to work with 
the fire department for animal fat and vegetable oil fires. This 
individual shall also verify that sufficient well-trained fire fighting 
resources are available within a reasonable response time to respond to 
a worst case discharge. The individual may be the qualified individual 
identified in the response plan or another appropriate individual 
located at the facility.

    11.0 Determining the Availability of Alternative Response Methods

    11.1 For chemical agents to be identified in a response plan, they 
must be on the NCP Product Schedule that is maintained by EPA. (Some 
States have a list of approved dispersants for use within State waters. 
Not all of these State-approved dispersants are listed on the NCP 
Product Schedule.)
    11.2 Identification of chemical agents in the plan does not imply 
that their use will be authorized. Actual authorization will be governed 
by the provisions of the NCP and the applicable ACP.

   12.0 Additional Equipment Necessary to Sustain Response Operations

    12.1 A facility owner or operator shall identify sufficient response 
resources available, by contract or other approved means as described in 
Sec. 112.2, to respond to a medium discharge of animal fats or 
vegetables oils for that facility. This will require response resources 
capable of containing and collecting up to 36,000 gallons of oil or 10 
percent of the worst case discharge, whichever is less. All equipment 
identified must be designed to operate in the applicable operating 
environment specified in Table 1 of this appendix.
    12.2 A facility owner or operator shall evaluate the availability of 
adequate temporary storage capacity to sustain the effective daily 
recovery capacities from equipment identified in the plan. Because of 
the inefficiencies of oil spill recovery devices, response plans must 
identify daily storage capacity equivalent to twice the effective daily 
recovery capacity required on-scene. This temporary storage capacity may 
be reduced if a facility owner or operator can demonstrate by waste 
stream analysis that the efficiencies of the oil recovery devices, 
ability to decant waste, or the availability of alternative temporary 
storage or disposal locations will reduce the overall volume of oily 
material storage.
    12.3 A facility owner or operator shall ensure that response 
planning includes the capability to arrange for disposal of recovered 
oil products. Specific disposal procedures will be addressed in the 
applicable ACP.

                    13.0 References and Availability

    13.1 All materials listed in this section are part of EPA's 
rulemaking docket and are located in the Superfund Docket, 1235 
Jefferson Davis Highway, Crystal Gateway 1, Arlington, Virginia 22202, 
Suite 105 (Docket Numbers SPCC-2P, SPCC-3P, and SPCC-9P). The docket is 
available for inspection between 9 a.m. and 4 p.m., Monday through 
Friday, excluding Federal holidays.
    Appointments to review the docket can be made by calling 703-603-
9232. Docket hours are subject to change. As provided in 40 CFR part 2, 
a reasonable fee may be charged for copying services.
    13.2 The docket will mail copies of materials to requestors who are 
outside the Washington, DC metropolitan area. Materials may be available 
from other sources, as noted in this section. As provided in 40 CFR part 
2, a reasonable fee may be charged for copying services. The RCRA/
Superfund Hotline at 800-424-9346 may also provide additional 
information on where to obtain documents. To contact the RCRA/Superfund 
Hotline in the Washington, DC metropolitan area, dial 703-412-9810. The 
Telecommunications Device for the Deaf (TDD) Hotline number is 800-553-
7672, or, in the Washington, DC metropolitan area, 703-412-3323.

                             13.3 Documents

    (1) National Preparedness for Response Exercise Program (PREP). The 
PREP draft guidelines are available from United States Coast Guard 
Headquarters (G-MEP-4), 2100 Second Street, SW., Washington, DC 20593. 
(See 58 FR 53990-91, October 19, 1993, Notice of Availability of PREP 
Guidelines).
    (2) ``Guidance for Facility and Vessel Response Plans: Fish and 
Wildlife and Sensitive Environments (published in the Federal Register 
by DOC/NOAA at 59 FR 14713-22, March 29, 1994.). The guidance is 
available in the Superfund Docket (see sections 13.1 and 13.2 of this 
appendix).
    (3) ASTM Standards. ASTM F 715, ASTM F 989, ASTM F 631-99, ASTM F 
808-83 (1999). The ASTM standards are available from the American 
Society for Testing and Materials, 100 Barr Harbor Drive, West 
Conshohocken, PA 19428-2959.
    (4) Response Plans for Marine Transportation-Related Facilities, 
Interim Final Rule. Published by USCG, DOT at 58 FR 7330-76, February 5, 
1993.

[[Page 86]]



       Table 1 to Appendix E--Response Resource Operating Criteria
------------------------------------------------------------------------
                          Oil Recovery Devices
-------------------------------------------------------------------------
                                    Significant wave height
      Operating environment                   \1\             Sea state
------------------------------------------------------------------------
Rivers and Canals................  <= 1 foot...............            1
Inland...........................  <= 3 feet...............            2
Great Lakes......................  <= 4 feet...............          2-3
Ocean............................  <= 6 feet...............          3-4
------------------------------------------------------------------------


----------------------------------------------------------------------------------------------------------------
                                                      Boom
-----------------------------------------------------------------------------------------------------------------
                                                                         Use
           Boom property           -----------------------------------------------------------------------------
                                     Rivers and canals        Inland           Great Lakes           Ocean
----------------------------------------------------------------------------------------------------------------
Significant Wave Height \1\.......  <= 1..............  <= 3..............  <= 4.............  <= 6
Sea State.........................  1.................  2.................  2-3..............  3-4
Boom height--inches (draft plus     6-18..............  18-42.............  18-42............  =42
 freeboard).
Reserve Buoyancy to Weight Ratio..  2:1...............  2:1...............  2:1..............  3:1 to 4:1
Total Tensile Strength--pounds....  4,500.............  15,000-20,000.....  15,000-20,000....  =20,00
                                                                                                0
Skirt Fabric Tensile Strength--     200...............  300...............  300..............  500
 pounds.
Skirt Fabric Tear Strength--pounds  100...............  100...............  100..............  125
----------------------------------------------------------------------------------------------------------------
\1\ Oil recovery devices and boom shall be at least capable of operating in wave heights up to and including the
  values listed in Table 1 for each operating environment.


                    Table 2 to Appendix E--Removal Capacity Planning Table for Petroleum Oils
----------------------------------------------------------------------------------------------------------------
          Spill location                      Rivers and canals                 Nearshore/Inland/Great Lakes
----------------------------------------------------------------------------------------------------------------
  Sustainability of on-water oil                    3 days                                 4 days
             recovery              -----------------------------------------------------------------------------
-----------------------------------                Percent                                Percent
                                      Percent     recovered   Percent oil    Percent     recovered   Percent oil
           Oil group \1\              natural      floating     onshore      natural      floating     onshore
                                    dissipation      oil                   dissipation      oil
----------------------------------------------------------------------------------------------------------------
1--Non-persistent oils............           80           10           10           80           20           10
2--Light crudes...................           40           15           45           50           50           30
3--Medium crudes and fuels........           20           15           65           30           50           50
4--Heavy crudes and fuels.........            5           20           75           10           50          70
----------------------------------------------------------------------------------------------------------------
\1\ The response resource considerations for non-petroleum oils other than animal fats and vegetable oils are
  outlined in section 7.7 of this appendix.
Note: Group 5 oils are defined in section 1.2.8 of this appendix; the response resource considerations are
  outlined in section 7.6 of this appendix.


 Table 3 to Appendix E--Emulsification Factors for Petroleum Oil Groups
                                   \1\
Non-Persistent Oil:
  Group 1......................................................      1.0
Persistent Oil:
  Group 2......................................................      1.8
  Group 3......................................................      2.0
  Group 4......................................................      1.4
Group 5 oils are defined in section 1.2.7 of this appendix; the
 response resource considerations are outlined in section 7.6
 of this appendix.
------------------------------------------------------------------------
\1\ See sections 1.2.2 and 1.2.7 of this appendix for group designations
  for non-persistent and persistent oils, respectively.


                   Table 4 to Appendix E--On-Water Oil Recovery Resource Mobilization Factors
----------------------------------------------------------------------------------------------------------------
                         Operating area                               Tier 1          Tier 2          Tier 3
----------------------------------------------------------------------------------------------------------------
Rivers and Canals...............................................            0.30            0.40            0.60
Inland/Nearshore Great Lakes....................................            0.15            0.25           0.40
----------------------------------------------------------------------------------------------------------------
Note: These mobilization factors are for total resources mobilized, not incremental response resources.


                        Table 5 to Appendix E--Response Capability Caps by Operating Area
----------------------------------------------------------------------------------------------------------------
                                                                      Tier 1          Tier 2          Tier 3
----------------------------------------------------------------------------------------------------------------
February 18, 1993:
    All except Rivers & Canals, Great Lakes.....................    10K bbls/day    20K bbls/day   40K bbls/day.

[[Page 87]]

 
    Great Lakes.................................................     5K bbls/day    10K bbls/day   20K bbls/day.
    Rivers & Canals.............................................   1.5K bbls/day   3.0K bbls/day  6.0K bbls/day.
February 18, 1998:
    All except Rivers & Canals, Great Lakes.....................  12.5K bbls/day    25K bbls/day   50K bbls/day.
    Great Lakes.................................................  6.35K bbls/day  12.3K bbls/day   25K bbls/day.
    Rivers & Canals.............................................    1.875K bbls/  3.75K bbls/day  7.5K bbls/day.
                                                                             day
February 18, 2003:
    All except Rivers & Canals, Great Lakes.....................             TBD             TBD            TBD.
    Great Lakes.................................................             TBD             TBD            TBD.
    Rivers & Canals.............................................             TBD             TBD            TBD.
----------------------------------------------------------------------------------------------------------------
Note: The caps show cumulative overall effective daily recovery capacity, not incremental increases.
TBD=To Be Determined.


            Table 6 to Appendix E--Removal Capacity Planning Table for Animal Fats and Vegetable Oils
----------------------------------------------------------------------------------------------------------------
          Spill location                      Rivers and canals                 Nearshore/Inland/Great Lakes
----------------------------------------------------------------------------------------------------------------
  Sustainability of on-water oil                    3 days                                 4 days
             recovery              -----------------------------------------------------------------------------
-----------------------------------                Percent      Percent                   Percent      Percent
                                      Percent     recovered    recovered     Percent     recovered    recovered
           Oil group \1\              natural      floating     oil from     natural      floating     oil from
                                        loss         oil        onshore        loss         oil        onshore
----------------------------------------------------------------------------------------------------------------
Group A...........................           40           15           45           50           20           30
Group B...........................           20           15           65           30           20          50
----------------------------------------------------------------------------------------------------------------
\1\ Substances with a specific gravity greater than 1.0 generally sink below the surface of the water. Response
  resource considerations are outlined in section 10.6 of this appendix. The owner or operator of the facility
  is responsible for determining appropriate response resources for Group C oils including locating oil on the
  bottom or suspended in the water column; containment boom or other appropriate methods for containing oil that
  may remain floating on the surface; and dredges, pumps, or other equipment to recover animal fats or vegetable
  oils from the bottom and shoreline.
Note: Group C oils are defined in sections 1.2.1 and 1.2.9 of this appendix; the response resource procedures
  are discussed in section 10.6 of this appendix.


    Table 7 to Appendix E--Emulsification Factors for Animal Fats and
                             Vegetable Oils
Oil Group \1\:
  Group A......................................................      1.0
  Group B......................................................      2.0
------------------------------------------------------------------------
\1\ Substances with a specific gravity greater than 1.0 generally sink
  below the surface of the water. Response resource considerations are
  outlined in section 10.6 of this appendix. The owner or operator of
  the facility is responsible for determining appropriate response
  resources for Group C oils including locating oil on the bottom or
  suspended in the water column; containment boom or other appropriate
  methods for containing oil that may remain floating on the surface;
  and dredges, pumps, or other equipment to recover animal fats or
  vegetable oils from the bottom and shoreline.
Note: Group C oils are defined in sections 1.2.1 and 1.2.9 of this
  appendix; the response resource procedures are discussed in section
  10.6 of this appendix.


[[Page 88]]

                        Attachments to Appendix E
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[GRAPHIC] [TIFF OMITTED] TR30JN00.063


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[GRAPHIC] [TIFF OMITTED] TR30JN00.064


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[GRAPHIC] [TIFF OMITTED] TR30JN00.065


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[GRAPHIC] [TIFF OMITTED] TR30JN00.067


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[GRAPHIC] [TIFF OMITTED] TR30JN00.068

[GRAPHIC] [TIFF OMITTED] TR30JN00.069


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[GRAPHIC] [TIFF OMITTED] TR30JN00.070


[59 FR 34111, July 1, 1994; 59 FR 49006, Sept. 26, 1994, as amended at 
65 FR 40806, 40807, June 30, 2000; 65 FR 47325, Aug. 2, 2000; 66 FR 
47325, Aug. 2, 2000; 66 FR 35460, 35461, June 29, 2001]



      Sec. Appendix F to Part 112--Facility-Specific Response Plan

                            Table of Contents

1.0 Model Facility-Specific Response Plan
1.1 Emergency Response Action Plan
1.2 Facility Information
1.3 Emergency Response Information
    1.3.1 Notification
    1.3.2 Response Equipment List
    1.3.3 Response Equipment Testing/Deployment
    1.3.4 Personnel
    1.3.5 Evacuation Plans
    1.3.6 Qualified Individual's Duties
1.4 Hazard Evaluation
    1.4.1 Hazard Identification
    1.4.2 Vulnerability Analysis
    1.4.3 Analysis of the Potential for an Oil Spill
    1.4.4 Facility Reportable Oil Spill History
1.5 Discharge Scenarios
    1.5.1 Small and Medium Discharges
    1.5.2 Worst Case Discharge
1.6 Discharge Detection Systems
    1.6.1 Discharge Detection By Personnel
    1.6.2 Automated Discharge Detection

[[Page 96]]

1.7 Plan Implementation
    1.7.1 Response Resources for Small, Medium, and Worst Case Spills
    1.7.2 Disposal Plans
    1.7.3 Containment and Drainage Planning
1.8 Self-Inspection, Drills/Exercises, and Response Training
    1.8.1 Facility Self-Inspection
    1.8.1.1 Tank Inspection
    1.8.1.2 Response Equipment Inspection
    1.8.1.3 Secondary Containment Inspection
    1.8.2 Facility Drills/Exercises
    1.8.2.1 Qualified Individual Notification Drill Logs
    1.8.2.2 Spill Management Team Tabletop Exercise Logs
    1.8.3 Response Training
    1.8.3.1 Personnel Response Training Logs
    1.8.3.2 Discharge Prevention Meeting Logs
1.9 Diagrams
1.10 Security
2.0 Response Plan Cover Sheet
3.0 Acronyms
4.0 References

                1.0 Model Facility-Specific Response Plan

    (A) Owners or operators of facilities regulated under this part 
which pose a threat of substantial harm to the environment by 
discharging oil into or on navigable waters or adjoining shorelines are 
required to prepare and submit facility-specific response plans to EPA 
in accordance with the provisions in this appendix. This appendix 
further describes the required elements in Sec. 112.20(h).
    (B) Response plans must be sent to the appropriate EPA Regional 
office. Figure F-1 of this Appendix lists each EPA Regional office and 
the address where owners or operators must submit their response plans. 
Those facilities deemed by the Regional Administrator (RA) to pose a 
threat of significant and substantial harm to the environment will have 
their plans reviewed and approved by EPA. In certain cases, information 
required in the model response plan is similar to information currently 
maintained in the facility's Spill Prevention, Control, and 
Countermeasures (SPCC) Plan as required by 40 CFR 112.3. In these cases, 
owners or operators may reproduce the information and include a 
photocopy in the response plan.
    (C) A complex may develop a single response plan with a set of core 
elements for all regulating agencies and separate sections for the non-
transportation-related and transportation-related components, as 
described in Sec. 112.20(h). Owners or operators of large facilities 
that handle, store, or transport oil at more than one geographically 
distinct location (e.g., oil storage areas at opposite ends of a single, 
continuous parcel of property) shall, as appropriate, develop separate 
sections of the response plan for each storage area.

[[Page 97]]

[GRAPHIC] [TIFF OMITTED] TC01MR92.015

                   1.1 Emergency Response Action Plan

    Several sections of the response plan shall be co-located for easy 
access by response personnel during an actual emergency or oil 
discharge. This collection of sections shall be called the Emergency 
Response Action Plan. The Agency intends that the Action Plan contain 
only as much information as is necessary to combat the discharge and be 
arranged so response actions are not delayed. The Action Plan may be 
arranged in a number of ways. For example, the sections of the Emergency 
Response Action Plan may be photocopies or condensed versions of the

[[Page 98]]

forms included in the associated sections of the response plan. Each 
Emergency Response Action Plan section may be tabbed for quick 
reference. The Action Plan shall be maintained in the front of the same 
binder that contains the complete response plan or it shall be contained 
in a separate binder. In the latter case, both binders shall be kept 
together so that the entire plan can be accessed by the qualified 
individual and appropriate spill response personnel. The Emergency 
Response Action Plan shall be made up of the following sections:

1. Qualified Individual Information (Section 1.2) partial
2. Emergency Notification Phone List (Section 1.3.1) partial
3. Spill Response Notification Form (Section 1.3.1) partial
4. Response Equipment List and Location (Section 1.3.2) complete
5. Response Equipment Testing and Deployment (Section 1.3.3) complete
6. Facility Response Team (Section 1.3.4) partial
7. Evacuation Plan (Section 1.3.5) condensed
8. Immediate Actions (Section 1.7.1) complete
9. Facility Diagram (Section 1.9) complete

                        1.2 Facility Information

    The facility information form is designed to provide an overview of 
the site and a description of past activities at the facility. Much of 
the information required by this section may be obtained from the 
facility's existing SPCC Plan.
    1.2.1 Facility name and location: Enter facility name and street 
address. Enter the address of corporate headquarters only if corporate 
headquarters are physically located at the facility. Include city, 
county, state, zip code, and phone number.
    1.2.2 Latitude and Longitude: Enter the latitude and longitude of 
the facility. Include degrees, minutes, and seconds of the main entrance 
of the facility.
    1.2.3 Wellhead Protection Area: Indicate if the facility is located 
in or drains into a wellhead protection area as defined by the Safe 
Drinking Water Act of 1986 (SDWA). \1\ The response plan requirements in 
the Wellhead Protection Program are outlined by the State or Territory 
in which the facility resides.
---------------------------------------------------------------------------

    \1\ A wellhead protection area is defined as the surface and 
subsurface area surrounding a water well or wellfield, supplying a 
public water system, through which contaminants are reasonably likely to 
move toward and reach such water well or wellfield. For further 
information regarding State and territory protection programs, facility 
owners or operators may contact the SDWA Hotline at 1-800-426-4791.
---------------------------------------------------------------------------

    1.2.4 Owner/operator: Write the name of the company or person 
operating the facility and the name of the person or company that owns 
the facility, if the two are different. List the address of the owner, 
if the two are different.
    1.2.5 Qualified Individual: Write the name of the qualified 
individual for the entire facility. If more than one person is listed, 
each individual indicated in this section shall have full authority to 
implement the facility response plan. For each individual, list: name, 
position, home and work addresses (street addresses, not P.O. boxes), 
emergency phone number, and specific response training experience.
    1.2.6 Date of Oil Storage Start-up: Enter the year which the present 
facility first started storing oil.
    1.2.7 Current Operation: Briefly describe the facility's operations 
and include the North American Industrial Classification System (NAICS) 
code.
    1.2.8 Dates and Type of Substantial Expansion: Include information 
on expansions that have occurred at the facility. Examples of such 
expansions include, but are not limited to: Throughput expansion, 
addition of a product line, change of a product line, and installation 
of additional oil storage capacity. The data provided shall include all 
facility historical information and detail the expansion of the 
facility. An example of substantial expansion is any material alteration 
of the facility which causes the owner or operator of the facility to 
re-evaluate and increase the response equipment necessary to adequately 
respond to a worst case discharge from the facility.
Date of Last Update: ------

                        Facility Information Form

Facility Name:__________________________________________________________
 Location (Street Address):_____________________________________________
    City: ------ State: ------ Zip: ------
    County: ------ Phone Number: ( ) ------
    Latitude: ------ Degrees ------ Minutes ------ Seconds
    Longitude: ------ Degrees ------ Minutes ------ Seconds
Wellhead Protection Area:_______________________________________________
Owner:__________________________________________________________________
 Owner Location (Street Address):_______________________________________

     (if different from Facility Address)
    City: ------ State:------ Zip: ------
    County: ------ Phone Number: ( ) ------
Operator (if not Owner):________________________________________________
Qualified Individual(s): (attach additional sheets if more than one)
 Name:__________________________________________________________________
 Position:______________________________________________________________
 Work Address:__________________________________________________________
 Home Address:__________________________________________________________
 Emergency Phone Number: ( )____________________________________________

[[Page 99]]

Date of Oil Storage Start-up:___________________________________________
Current Operations:_____________________________________________________
________________________________________________________________________
________________________________________________________________________
Date(s) and Type(s) of Substantial Expansion(s):________________________
________________________________________________________________________
(Attach additional sheets if necessary)

                   1.3 Emergency Response Information

    (A) The information provided in this section shall describe what 
will be needed in an actual emergency involving the discharge of oil or 
a combination of hazardous substances and oil discharge. The Emergency 
Response Information section of the plan must include the following 
components:
    (1) The information provided in the Emergency Notification Phone 
List in section 1.3.1 identifies and prioritizes the names and phone 
numbers of the organizations and personnel that need to be notified 
immediately in the event of an emergency. This section shall include all 
the appropriate phone numbers for the facility. These numbers must be 
verified each time the plan is updated. The contact list must be 
accessible to all facility employees to ensure that, in case of a 
discharge, any employee on site could immediately notify the appropriate 
parties.
    (2) The Spill Response Notification Form in section 1.3.1 creates a 
checklist of information that shall be provided to the National Response 
Center (NRC) and other response personnel. All information on this 
checklist must be known at the time of notification, or be in the 
process of being collected. This notification form is based on a similar 
form used by the NRC. Note: Do not delay spill notification to collect 
the information on the list.
    (3) Section 1.3.2 provides a description of the facility's list of 
emergency response equipment and location of the response equipment. 
When appropriate, the amount of oil that emergency response equipment 
can handle and any limitations (e.g., launching sites) must be 
described.
    (4) Section 1.3.3 provides information regarding response equipment 
tests and deployment drills. Response equipment deployment exercises 
shall be conducted to ensure that response equipment is operational and 
the personnel who would operate the equipment in a spill response are 
capable of deploying and operating it. Only a representative sample of 
each type of response equipment needs to be deployed and operated, as 
long as the remainder is properly maintained. If appropriate, testing of 
response equipment may be conducted while it is being deployed. 
Facilities without facility-owned response equipment must ensure that 
the oil spill removal organization that is identified in the response 
plan to provide this response equipment certifies that the deployment 
exercises have been met. Refer to the National Preparedness for Response 
Exercise Program (PREP) Guidelines (see Appendix E to this part, section 
13, for availability), which satisfy Oil Pollution Act (OPA) response 
exercise requirements.
    (5) Section 1.3.4 lists the facility response personnel, including 
those employed by the facility and those under contract to the facility 
for response activities, the amount of time needed for personnel to 
respond, their responsibility in the case of an emergency, and their 
level of response training. Three different forms are included in this 
section. The Emergency Response Personnel List shall be composed of all 
personnel employed by the facility whose duties involve responding to 
emergencies, including oil discharges, even when they are not physically 
present at the site. An example of this type of person would be the 
Building Engineer-in-Charge or Plant Fire Chief. The second form is a 
list of the Emergency Response Contractors (both primary and secondary) 
retained by the facility. Any changes in contractor status must be 
reflected in updates to the response plan. Evidence of contracts with 
response contractors shall be included in this section so that the 
availability of resources can be verified. The last form is the Facility 
Response Team List, which shall be composed of both emergency response 
personnel (referenced by job title/position) and emergency response 
contractors, included in one of the two lists described above, that will 
respond immediately upon discovery of an oil discharge or other 
emergency (i.e., the first people to respond). These are to be persons 
normally on the facility premises or primary response contractors. 
Examples of these personnel would be the Facility Hazardous Materials 
(HAZMAT) Spill Team 1, Facility Fire Engine Company 1, Production 
Supervisor, or Transfer Supervisor. Company personnel must be able to 
respond immediately and adequately if contractor support is not 
available.
    (6) Section 1.3.5 lists factors that must, as appropriate, be 
considered when preparing an evacuation plan.
    (7) Section 1.3.6 references the responsibilities of the qualified 
individual for the facility in the event of an emergency.
    (B) The information provided in the emergency response section will 
aid in the assessment of the facility's ability to respond to a worst 
case discharge and will identify additional assistance that may be 
needed. In addition, the facility owner or operator may want to produce 
a wallet-size card containing a checklist of the immediate response and 
notification steps to be taken in the event of an oil discharge.

                           1.3.1 Notification

Date of Last Update:____________________________________________________

[[Page 100]]

            Emergency Notification Phone List Whom To Notify

Reporter's Name:________________________________________________________
Date:___________________________________________________________________
Facility Name:__________________________________________________________
Owner Name:_____________________________________________________________
Facility Identification Number:_________________________________________
Date and Time of Each NRC Notification:_________________________________

------------------------------------------------------------------------
                     Organization                          Phone No.
------------------------------------------------------------------------
1. National Response Center (NRC):                        1-800-424-8802
                                                      ------------------
 
2. Qualified Individual:
                                                      ------------------
 
  Evening Phone:
                                                      ------------------
 
3. Company Response Team:
                                                      ------------------
 
  Evening Phone:
                                                      ------------------
 
4. Federal On-Scene Coordinator (OSC) and/or Regional
 Response Center (RRC):
                                                      ------------------
 
  Evening Phone(s):
                                                      ------------------
 
  Pager Number(s):
                                                      ------------------
 
5. Local Response Team (Fire Dept./Cooperatives):
                                                      ------------------
 
6. Fire Marshall:
                                                      ------------------
 
  Evening Phone:
                                                      ------------------
 
7. State Emergency Response Commission (SERC):
                                                      ------------------
 
  Evening Phone:
                                                      ------------------
 
8. State Police:
                                                      ------------------
 
9. Local Emergency Planning Committee (LEPC):
                                                      ------------------
 
10. Local Water Supply System:
                                                      ------------------
 
  Evening Phone:
                                                      ------------------
 
11. Weather Report:
                                                      ------------------
 
12. Local Television/Radio Station for Evacuation
 Notification:
                                                      ------------------
 
13. Hospitals:
                                                      ------------------
------------------------------------------------------------------------


                    Spill Response Notification Form

Reporter's Last Name:___________________________________________________
First:__________________________________________________________________
M.I.:___________________________________________________________________
Position:_______________________________________________________________
Phone Numbers:

    Day ( ) -
    Evening ( ) -

Company:________________________________________________________________

Organization Type:______________________________________________________

Address:________________________________________________________________

________________________________________________________________________

City:___________________________________________________________________

State:__________________________________________________________________

Zip:____________________________________________________________________
Were Materials Discharged? ------ (Y/N) Confidential? ------ (Y/N)
Meeting Federal Obligations to Report? ------ (Y/N) Date Called: ------
Calling for Responsible Party? ------ (Y/N) Time Called: ------

                          Incident Description

Source and/or Cause of Incident:________________________________________

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

Date of Incident:_______________________________________________________
Time of Incident: ------ AM/PM

Incident Address/Location:______________________________________________

________________________________________________________________________
Nearest City:---------------- State: ------ County: -------- Zip: ------
--
Distance from City: ------ Units of Measure: ------ Direction from City: 
------
Section: -------- Township: -------- Range: -------- Borough: --------
Container Type: ------ Tank Oil Storage Capacity: -------- Units of 
Measure: ------
Facility Oil Storage Capacity: -------- Units of Measure: ------
Facility Latitude: ------ Degrees ------ Minutes ------ Seconds
Facility Longitude: ------ Degrees ------ Minutes ------ Seconds

                                Material

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                      Material Discharged
             CHRIS Code                Discharged quantity       Unit of measure            in water               Quantity           Unit of measure
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
--------------------------------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 101]]

                             Response Action

Actions Taken to Correct, Control or Mitigate Incident:

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

                                 Impact

Number of Injuries: ------ Number of Deaths: ------
Were there Evacuations? ------ (Y/N) Number Evacuated: ------
Was there any Damage? ------ (Y/N)
Damage in Dollars (approximate):________________________________________

Medium Affected:________________________________________________________

Description:____________________________________________________________

More Information about Medium:__________________________________________

________________________________________________________________________

________________________________________________________________________

                         Additional Information

Any information about the incident not recorded elsewhere in the report:

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

                          Caller Notifications

EPA? ------ (Y/N) USCG? ------ (Y/N) State? ------ (Y/N)
Other? ------ (Y/N) Describe: ------------

                      1.3.2 Response Equipment List

    Date of Last Update:------

                    Facility Response Equipment List

1. Skimmers/Pumps--Operational Status:__________________________________
 Type, Model, and Year:_________________________________________________
________________________________________________________________________
 Type Model Year
 Number:________________________________________________________________
 Capacity: -------- gal./min.
 Daily Effective Recovery Rate:_________________________________________
 Storage Location(s):___________________________________________________
 Date Fuel Last Changed:________________________________________________
2. Boom--Operational Status:____________________________________________
 Type, Model, and Year:_________________________________________________
 Type Model Year
 Number:________________________________________________________________
    Size (length): -------- ft.
    Containment Area: -------- sq. ft.
 Storage Location:______________________________________________________
    3. Chemicals Stored (Dispersants listed on EPA's NCP Product 
Schedule)

----------------------------------------------------------------------------------------------------------------
                                                                               Date      Treatment     Storage
                            Type                                 Amount     purchased     capacity     location
----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------

    Were appropriate procedures used to receive approval for use of 
dispersants in accordance with the NCP (40 CFR 300.910) and the Area 
Contingency Plan (ACP), where applicable?------ (Y/N).
    Name and State of On-Scene Coordinator (OSC) authorizing use: ------ 
.
    Date Authorized: ------ .
    4. Dispersant Dispensing Equipment--Operational Status: ------ .

------------------------------------------------------------------------
                                                               Response
          Type and year              Capacity     Storage        time
                                                  location    (minutes)
------------------------------------------------------------------------
 
------------------------------------------------------------------------
 
------------------------------------------------------------------------
 
------------------------------------------------------------------------
 
------------------------------------------------------------------------

5. Sorbents--Operational Status:________________________________________
 Type and Year Purchased:_______________________________________________
 Amount:________________________________________________________________
 Absorption Capacity (gal.):____________________________________________
 Storage Location(s):___________________________________________________
6. Hand Tools--Operational Status:______________________________________

------------------------------------------------------------------------
     Type and year               Quantity            Storage  location
------------------------------------------------------------------------
 
------------------------------------------------------------------------
 
------------------------------------------------------------------------

[[Page 102]]

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

    7. Communication Equipment (include operating frequency and channel 
and/or cellular phone numbers)--Operational Status: ------

------------------------------------------------------------------------
                                                     Storage location/
     Type and year               Quantity                 number
------------------------------------------------------------------------
 
------------------------------------------------------------------------
 
------------------------------------------------------------------------

    8. Fire Fighting and Personnel Protective Equipment--Operational 
Status: ------

------------------------------------------------------------------------
     Type and year               Quantity            Storage  location
------------------------------------------------------------------------
 
------------------------------------------------------------------------
 
------------------------------------------------------------------------
 
------------------------------------------------------------------------
 
------------------------------------------------------------------------

    9. Other (e.g., Heavy Equipment, Boats and Motors)--Operational 
Status: ------

------------------------------------------------------------------------
     Type and year               Quantity            Storage  location
------------------------------------------------------------------------
 
------------------------------------------------------------------------
 
------------------------------------------------------------------------
 
------------------------------------------------------------------------
 
------------------------------------------------------------------------

               1.3.3 Response Equipment Testing/Deployment

    Date of Last Update:--------

           Response Equipment Testing and Deployment Drill Log

Last Inspection or Response Equipment Test Date:________________________
Inspection Frequency:___________________________________________________
Last Deployment Drill Date:_____________________________________________
Deployment Frequency:___________________________________________________
Oil Spill Removal Organization Certification (if applicable):___________

                             1.3.4 Personnel

    Date of Last Update:--------

                                                              Emergency Response Personnel
                                                                    Company Personnel
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                      Responsibility during response
           Name                      Phone \1\                 Response time                      action                   Response training type/date
--------------------------------------------------------------------------------------------------------------------------------------------------------
1.
--------------------------------------------------------------------------------------------------------------------------------------------------------
2.
--------------------------------------------------------------------------------------------------------------------------------------------------------
3.
--------------------------------------------------------------------------------------------------------------------------------------------------------
4.
--------------------------------------------------------------------------------------------------------------------------------------------------------
5.
--------------------------------------------------------------------------------------------------------------------------------------------------------
6.
--------------------------------------------------------------------------------------------------------------------------------------------------------
7.
--------------------------------------------------------------------------------------------------------------------------------------------------------
8.
--------------------------------------------------------------------------------------------------------------------------------------------------------
9.
--------------------------------------------------------------------------------------------------------------------------------------------------------
10.
--------------------------------------------------------------------------------------------------------------------------------------------------------
11.
--------------------------------------------------------------------------------------------------------------------------------------------------------
12.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Phone number to be used when person is not on-site.


                                         Emergency Response Contractors
                                          Date of Last Update: --------
----------------------------------------------------------------------------------------------------------------
      Contractor               Phone              Response time              Contract responsibility \1\
----------------------------------------------------------------------------------------------------------------
1.
----------------------------------------------------------------------------------------------------------------
 
                                                                    --------------------------------------------
 
                                                                    --------------------------------------------

[[Page 103]]

 
2.
----------------------------------------------------------------------------------------------------------------
 
                                                                    --------------------------------------------
 
                                                                    --------------------------------------------
3.
----------------------------------------------------------------------------------------------------------------
 
                                                                    --------------------------------------------
 
                                                                    --------------------------------------------
4.
----------------------------------------------------------------------------------------------------------------
 
                                                                    --------------------------------------------
 
                                                                    --------------------------------------------
 
----------------------------------------------------------------------------------------------------------------
 \1\ Include evidence of contracts/agreements with response contractors to ensure the availability of personnel
  and response equipment.


                                             Facility Response Team
                                          Date of Last Update:--------
----------------------------------------------------------------------------------------------------------------
                                                                                  Phone or pager number (day/
              Team member                      Response time (minutes)                     evening)
----------------------------------------------------------------------------------------------------------------
Qualified Individual:
                                         ...................................   /
----------------------------------------------------------------------------------------------------------------
                                         ...................................   /
----------------------------------------------------------------------------------------------------------------
                                         ...................................   /
----------------------------------------------------------------------------------------------------------------
                                         ...................................   /
----------------------------------------------------------------------------------------------------------------
                                         ...................................   /
----------------------------------------------------------------------------------------------------------------
                                         ...................................   /
----------------------------------------------------------------------------------------------------------------
                                         ...................................   /
----------------------------------------------------------------------------------------------------------------
                                         ...................................   /
----------------------------------------------------------------------------------------------------------------
                                         ...................................   /
----------------------------------------------------------------------------------------------------------------
                                         ...................................   /
----------------------------------------------------------------------------------------------------------------
                                         ...................................   /
----------------------------------------------------------------------------------------------------------------
                                         ...................................   /
----------------------------------------------------------------------------------------------------------------
                                         ...................................   /
----------------------------------------------------------------------------------------------------------------
                                         ...................................   /
----------------------------------------------------------------------------------------------------------------
                                         ...................................   /
----------------------------------------------------------------------------------------------------------------
                                         ...................................   /
----------------------------------------------------------------------------------------------------------------
                                         ...................................   /
----------------------------------------------------------------------------------------------------------------
                                         ...................................   /
----------------------------------------------------------------------------------------------------------------
Note: If the facility uses contracted help in an emergency response situation, the owner or operator must
  provide the contractors' names and review the contractors' capacities to provide adequate personnel and
  response equipment.


[[Page 104]]

                         1.3.5 Evacuation Plans

    1.3.5.1 Based on the analysis of the facility, as discussed 
elsewhere in the plan, a facility-wide evacuation plan shall be 
developed. In addition, plans to evacuate parts of the facility that are 
at a high risk of exposure in the event of a discharge or other release 
must be developed. Evacuation routes must be shown on a diagram of the 
facility (see section 1.9 of this appendix). When developing evacuation 
plans, consideration must be given to the following factors, as 
appropriate:
    (1) Location of stored materials;
    (2) Hazard imposed by discharged material;
    (3) Discharge flow direction;
    (4) Prevailing wind direction and speed;
    (5) Water currents, tides, or wave conditions (if applicable);
    (6) Arrival route of emergency response personnel and response 
equipment;
    (7) Evacuation routes;
    (8) Alternative routes of evacuation;
    (9) Transportation of injured personnel to nearest emergency medical 
facility;
    (10) Location of alarm/notification systems;
    (11) The need for a centralized check-in area for evacuation 
validation (roll call);
    (12) Selection of a mitigation command center; and
    (13) Location of shelter at the facility as an alternative to 
evacuation.
    1.3.5.2 One resource that may be helpful to owners or operators in 
preparing this section of the response plan is The Handbook of Chemical 
Hazard Analysis Procedures by the Federal Emergency Management Agency 
(FEMA), Department of Transportation (DOT), and EPA. The Handbook of 
Chemical Hazard Analysis Procedures is available from: FEMA , 
Publication Office, 500 C. Street, S.W., Washington, DC 20472, (202) 
646-3484.
    1.3.5.3 As specified in Sec. 112.20(h)(1)(vi), the facility owner 
or operator must reference existing community evacuation plans, as 
appropriate.

                   1.3.6 Qualified Individual's Duties

    The duties of the designated qualified individual are specified in 
Sec. 112.20(h)(3)(ix). The qualified individual's duties must be 
described and be consistent with the minimum requirements in Sec. 
112.20(h)(3)(ix). In addition, the qualified individual must be 
identified with the Facility Information in section 1.2 of the response 
plan.

                          1.4 Hazard Evaluation

    This section requires the facility owner or operator to examine the 
facility's operations closely and to predict where discharges could 
occur. Hazard evaluation is a widely used industry practice that allows 
facility owners or operators to develop a complete understanding of 
potential hazards and the response actions necessary to address these 
hazards. The Handbook of Chemical Hazard Analysis Procedures, prepared 
by the EPA, DOT, and the FEMA and the Hazardous Materials Emergency 
Planning Guide (NRT-1), prepared by the National Response Team are good 
references for conducting a hazard analysis. Hazard identification and 
evaluation will assist facility owners or operators in planning for 
potential discharges, thereby reducing the severity of discharge impacts 
that may occur in the future. The evaluation also may help the operator 
identify and correct potential sources of discharges. In addition, 
special hazards to workers and emergency response personnel's health and 
safety shall be evaluated, as well as the facility's oil spill history.

                       1.4.1 Hazard Identification

    The Tank and Surface Impoundment (SI) forms, or their equivalent, 
that are part of this section must be completed according to the 
directions below. (``Surface Impoundment'' means a facility or part of a 
facility which is a natural topographic depression, man-made excavation, 
or diked area formed primarily of earthen materials (although it may be 
lined with man-made materials), which is designed to hold an 
accumulation of liquid wastes or wastes containing free liquids, and 
which is not an injection well or a seepage facility.) Similar 
worksheets, or their equivalent, must be developed for any other type of 
storage containers.
    (1) List each tank at the facility with a separate and distinct 
identifier. Begin aboveground tank identifiers with an ``A'' and 
belowground tank identifiers with a ``B'', or submit multiple sheets 
with the aboveground tanks and belowground tanks on separate sheets.
    (2) Use gallons for the maximum capacity of a tank; and use square 
feet for the area.
    (3) Using the appropriate identifiers and the following 
instructions, fill in the appropriate forms:
    (a) Tank or SI number--Using the aforementioned identifiers (A or B) 
or multiple reporting sheets, identify each tank or SI at the facility 
that stores oil or hazardous materials.
    (b) Substance Stored--For each tank or SI identified, record the 
material that is stored therein. If the tank or SI is used to store more 
than one material, list all of the stored materials.
    (c) Quantity Stored--For each material stored in each tank or SI, 
report the average volume of material stored on any given day.
    (d) Tank Type or Surface Area/Year--For each tank, report the type 
of tank (e.g., floating top), and the year the tank was originally 
installed. If the tank has been refabricated, the year that the latest 
refabrication was completed must be recorded in parentheses next to the 
year installed. For

[[Page 105]]

each SI, record the surface area of the impoundment and the year it went 
into service.
    (e) Maximum Capacity--Record the operational maximum capacity for 
each tank and SI. If the maximum capacity varies with the season, record 
the upper and lower limits.
    (f) Failure/Cause--Record the cause and date of any tank or SI 
failure which has resulted in a loss of tank or SI contents.
    (4) Using the numbers from the tank and SI forms, label a schematic 
drawing of the facility. This drawing shall be identical to any 
schematic drawings included in the SPCC Plan.
    (5) Using knowledge of the facility and its operations, describe the 
following in writing:
    (a) The loading and unloading of transportation vehicles that risk 
the discharge of oil or release of hazardous substances during transport 
processes. These operations may include loading and unloading of trucks, 
railroad cars, or vessels. Estimate the volume of material involved in 
transfer operations, if the exact volume cannot be determined.
    (b) Day-to-day operations that may present a risk of discharging oil 
or releasing a hazardous substance. These activities include scheduled 
venting, piping repair or replacement, valve maintenance, transfer of 
tank contents from one tank to another, etc. (not including 
transportation-related activities). Estimate the volume of material 
involved in these operations, if the exact volume cannot be determined.
    (c) The secondary containment volume associated with each tank and/
or transfer point at the facility. The numbering scheme developed on the 
tables, or an equivalent system, must be used to identify each 
containment area. Capacities must be listed for each individual unit 
(tanks, slumps, drainage traps, and ponds), as well as the facility 
total.
    (d) Normal daily throughput for the facility and any effect on 
potential discharge volumes that a negative or positive change in that 
throughput may cause.

                                                             Hazard Identification Tanks \1\
                                                              Date of Last Update: --------
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                      Substance Stored (Oil
              Tank No.                    and Hazardous          Quantity Stored         Tank Type/Year        Maximum Capacity        Failure/Cause
                                           Substance)               (gallons)                                     (gallons)
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
--------------------------------------------------------------------------------------------------------------------------------------------------------
 \1\ Tank = any container that stores oil.
Attach as many sheets as necessary.


                                                    Hazard Identification Surface Impoundments (SIs)
                                                              Date of Last Update: --------
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                 Quantity Stored                               Maximum Capacity
               SI No.                   Substance Stored            (gallons)          Surface Area/Year          (gallons)            Failure/Cause
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
--------------------------------------------------------------------------------------------------------------------------------------------------------

[[Page 106]]

 
 
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
--------------------------------------------------------------------------------------------------------------------------------------------------------
 Attach as many sheets as necessary.

                      1.4.2 Vulnerability Analysis

    The vulnerability analysis shall address the potential effects 
(i.e., to human health, property, or the environment) of an oil 
discharge. Attachment C-III to Appendix C to this part provides a method 
that owners or operators shall use to determine appropriate distances 
from the facility to fish and wildlife and sensitive environments. 
Owners or operators can use a comparable formula that is considered 
acceptable by the RA. If a comparable formula is used, documentation of 
the reliability and analytical soundness of the formula must be attached 
to the response plan cover sheet. This analysis must be prepared for 
each facility and, as appropriate, must discuss the vulnerability of:
    (1) Water intakes (drinking, cooling, or other);
    (2) Schools;
    (3) Medical facilities;
    (4) Residential areas;
    (5) Businesses;
    (6) Wetlands or other sensitive environments; \2\
---------------------------------------------------------------------------

    \2\ Refer to the DOC/NOAA ``Guidance for Facility and Vessel 
Response Plans: Fish and Wildlife and Sensitive Environments'' (See 
appendix E to this part, section 13, for availability).
---------------------------------------------------------------------------

    (7) Fish and wildlife;
    (8) Lakes and streams;
    (9) Endangered flora and fauna;
    (10) Recreational areas;
    (11) Transportation routes (air, land, and water);
    (12) Utilities; and
    (13) Other areas of economic importance (e.g., beaches, marinas) 
including terrestrially sensitive environments, aquatic environments, 
and unique habitats.

          1.4.3 Analysis of the Potential for an Oil Discharge

    Each owner or operator shall analyze the probability of a discharge 
occurring at the facility. This analysis shall incorporate factors such 
as oil discharge history, horizontal range of a potential discharge, and 
vulnerability to natural disaster, and shall, as appropriate, 
incorporate other factors such as tank age. This analysis will provide 
information for developing discharge scenarios for a worst case 
discharge and small and medium discharges and aid in the development of 
techniques to reduce the size and frequency of discharges. The owner or 
operator may need to research the age of the tanks the oil discharge 
history at the facility.

               1.4.4 Facility Reportable Oil Spill History

    Briefly describe the facility's reportable oil spill \3\ history for 
the entire life of the facility to the extent that such information is 
reasonably identifiable, including:
---------------------------------------------------------------------------

    \3\ As described in 40 CFR part 110, reportable oil spills are those 
that: (a) violate applicable water quality standards, or (b) cause a 
film or sheen upon or discoloration of the surface of the water or 
adjoining shorelines or cause a sludge or emulsion to be deposited 
beneath the surface of the water or upon adjoining shorelines.
---------------------------------------------------------------------------

    (1) Date of discharge(s);
    (2) List of discharge causes;
    (3) Material(s) discharged;
    (4) Amount discharged in gallons;
    (5) Amount of discharge that reached navigable waters, if 
applicable;
    (6) Effectiveness and capacity of secondary containment;
    (7) Clean-up actions taken;
    (8) Steps taken to reduce possibility of recurrence;
    (9) Total oil storage capacity of the tank(s) or impoundment(s) from 
which the material discharged;
    (10) Enforcement actions;
    (11) Effectiveness of monitoring equipment; and
    (12) Description(s) of how each oil discharge was detected.


[[Page 107]]


The information solicited in this section may be similar to requirements 
in 40 CFR 112.4(a). Any duplicate information required by Sec. 112.4(a) 
may be photocopied and inserted.

                         1.5 Discharge Scenarios

    In this section, the owner or operator is required to provide a 
description of the facility's worst case discharge, as well as a small 
and medium discharge, as appropriate. A multi-level planning approach 
has been chosen because the response actions to a discharge (i.e., 
necessary response equipment, products, and personnel) are dependent on 
the magnitude of the discharge. Planning for lesser discharges is 
necessary because the nature of the response may be qualitatively 
different depending on the quantity of the discharge. The facility owner 
or operator shall discuss the potential direction of the discharge 
pathway.

                    1.5.1 Small and Medium Discharges

    1.5.1.1 To address multi-level planning requirements, the owner or 
operator must consider types of facility-specific discharge scenarios 
that may contribute to a small or medium discharge. The scenarios shall 
account for all the operations that take place at the facility, 
including but not limited to:
    (1) Loading and unloading of surface transportation;
    (2) Facility maintenance;
    (3) Facility piping;
    (4) Pumping stations and sumps;
    (5) Oil storage tanks;
    (6) Vehicle refueling; and
    (7) Age and condition of facility and components.
    1.5.1.2 The scenarios shall also consider factors that affect the 
response efforts required by the facility. These include but are not 
limited to:
    (1) Size of the discharge;
    (2) Proximity to downgradient wells, waterways, and drinking water 
intakes;
    (3) Proximity to fish and wildlife and sensitive environments;
    (4) Likelihood that the discharge will travel offsite (i.e., 
topography, drainage);
    (5) Location of the material discharged (i.e., on a concrete pad or 
directly on the soil);
    (6) Material discharged;
    (7) Weather or aquatic conditions (i.e., river flow);
    (8) Available remediation equipment;
    (9) Probability of a chain reaction of failures; and
    (10) Direction of discharge pathway.

                       1.5.2 Worst Case Discharge

    1.5.2.1 In this section, the owner or operator must identify the 
worst case discharge volume at the facility. Worksheets for production 
and non-production facility owners or operators to use when calculating 
worst case discharge are presented in Appendix D to this part. When 
planning for the worst case discharge response, all of the 
aforementioned factors listed in the small and medium discharge section 
of the response plan shall be addressed.
    1.5.2.2 For onshore storage facilities and production facilities, 
permanently manifolded oil storage tanks are defined as tanks that are 
designed, installed, and/or operated in such a manner that the multiple 
tanks function as one storage unit (i.e., multiple tank volumes are 
equalized). In this section of the response plan, owners or operators 
must provide evidence that oil storage tanks with common piping or 
piping systems are not operated as one unit. If such evidence is 
provided and is acceptable to the RA, the worst case discharge volume 
shall be based on the combined oil storage capacity of all manifold 
tanks or the oil storage capacity of the largest single oil storage tank 
within the secondary containment area, whichever is greater. For 
permanently manifolded oil storage tanks that function as one storage 
unit, the worst case discharge shall be based on the combined oil 
storage capacity of all manifolded tanks or the oil storage capacity of 
the largest single tank within a secondary containment area, whichever 
is greater. For purposes of the worst case discharge calculation, 
permanently manifolded oil storage tanks that are separated by internal 
divisions for each tank are considered to be single tanks and individual 
manifolded tank volumes are not combined.

                     1.6 Discharge Detection Systems

    In this section, the facility owner or operator shall provide a 
detailed description of the procedures and equipment used to detect 
discharges. A section on discharge detection by personnel and a 
discussion of automated discharge detection, if applicable, shall be 
included for both regular operations and after hours operations. In 
addition, the facility owner or operator shall discuss how the 
reliability of any automated system will be checked and how frequently 
the system will be inspected.

                 1.6.1 Discharge Detection by Personnel

    In this section, facility owners or operators shall describe the 
procedures and personnel that will detect any discharge of oil or 
release of a hazardous substance. A thorough discussion of facility 
inspections must be included. In addition, a description of initial 
response actions shall be addressed. This section shall reference 
section 1.3.1 of the response plan for emergency response information.

[[Page 108]]

                   1.6.2 Automated Discharge Detection

    In this section, facility owners or operators must describe any 
automated discharge detection equipment that the facility has in place. 
This section shall include a discussion of overfill alarms, secondary 
containment sensors, etc. A discussion of the plans to verify an 
automated alarm and the actions to be taken once verified must also be 
included.

                         1.7 Plan Implementation

    In this section, facility owners or operators must explain in detail 
how to implement the facility's emergency response plan by describing 
response actions to be carried out under the plan to ensure the safety 
of the facility and to mitigate or prevent discharges described in 
section 1.5 of the response plan. This section shall include the 
identification of response resources for small, medium, and worst case 
discharges; disposal plans; and containment and drainage planning. A 
list of those personnel who would be involved in the cleanup shall be 
identified. Procedures that the facility will use, where appropriate or 
necessary, to update their plan after an oil discharge event and the 
time frame to update the plan must be described.

 1.7.1 Response Resources for Small, Medium, and Worst Case Discharages

    1.7.1.1 Once the discharge scenarios have been identified in section 
1.5 of the response plan, the facility owner or operator shall identify 
and describe implementation of the response actions. The facility owner 
or operator shall demonstrate accessibility to the proper response 
personnel and equipment to effectively respond to all of the identified 
discharge scenarios. The determination and demonstration of adequate 
response capability are presented in Appendix E to this part. In 
addition, steps to expedite the cleanup of oil discharges must be 
discussed. At a minimum, the following items must be addressed:
    (1) Emergency plans for spill response;
    (2) Additional response training;
    (3) Additional contracted help;
    (4) Access to additional response equipment/experts; and
    (5) Ability to implement the plan including response training and 
practice drills.
    1.7.1.2A recommended form detailing immediate actions follows.

                  Oil Spill Response--Immediate Actions
------------------------------------------------------------------------
 
1. Stop the product flow..................  Act quickly to secure pumps,
                                             close valves, etc.
2. Warn personnel.........................  Enforce safety and security
                                             measures.
3. Shut off ignition sources..............  Motors, electrical circuits,
                                             open flames, etc.
4. Initiate containment...................  Around the tank and/or in
                                             the water with oil boom.
5. Notify NRC.............................  1-800-424-8802
6. Notify OSC
7. Notify, as appropriate
------------------------------------------------------------------------
Source: FOSS, Oil Spill Response--Emergency Procedures, Revised December
  3, 1992.

                          1.7.2 Disposal Plans

    1.7.2.1 Facility owners or operators must describe how and where the 
facility intends to recover, reuse, decontaminate, or dispose of 
materials after a discharge has taken place. The appropriate permits 
required to transport or dispose of recovered materials according to 
local, State, and Federal requirements must be addressed. Materials that 
must be accounted for in the disposal plan, as appropriate, include:
    (1) Recovered product;
    (2) Contaminated soil;
    (3) Contaminated equipment and materials, including drums, tank 
parts, valves, and shovels;
    (4) Personnel protective equipment;
    (5) Decontamination solutions;
    (6) Adsorbents; and
    (7) Spent chemicals.
    1.7.2.2 These plans must be prepared in accordance with Federal 
(e.g., the Resource Conservation and Recovery Act [RCRA]), State, and 
local regulations, where applicable. A copy of the disposal plans from 
the facility's SPCC Plan may be inserted with this section, including 
any diagrams in those plans.

------------------------------------------------------------------------
                                     Disposal                RCRA permit/
             Material                facility     Location     manifest
------------------------------------------------------------------------
1.
------------------------------------------------------------------------
2.
------------------------------------------------------------------------
3.
------------------------------------------------------------------------
4.
------------------------------------------------------------------------

                 1.7.3 Containment and Drainage Planning

    A proper plan to contain and control a discharge through drainage 
may limit the threat of harm to human health and the environment. This 
section shall describe how to contain and control a discharge through 
drainage, including:

[[Page 109]]

    (1) The available volume of containment (use the information 
presented in section 1.4.1 of the response plan);
    (2) The route of drainage from oil storage and transfer areas;
    (3) The construction materials used in drainage troughs;
    (4) The type and number of valves and separators used in the 
drainage system;
    (5) Sump pump capacities;
    (6) The containment capacity of weirs and booms that might be used 
and their location (see section 1.3.2 of this appendix); and
    (7) Other cleanup materials.
    In addition, a facility owner or operator must meet the inspection 
and monitoring requirements for drainage contained in 40 CFR part 112, 
subparts A through C. A copy of the containment and drainage plans that 
are required in 40 CFR part 112, subparts A through C may be inserted in 
this section, including any diagrams in those plans.
    Note: The general permit for stormwater drainage may contain 
additional requirements.

      1.8 Self-Inspection, Drills/Exercises, and Response Training

    The owner or operator must develop programs for facility response 
training and for drills/exercises according to the requirements of 40 
CFR 112.21. Logs must be kept for facility drills/exercises, personnel 
response training, and spill prevention meetings. Much of the 
recordkeeping information required by this section is also contained in 
the SPCC Plan required by 40 CFR 112.3. These logs may be included in 
the facility response plan or kept as an annex to the facility response 
plan.

                     1.8.1 Facility Self-Inspection

    Under 40 CFR 112.7(e), you must include the written procedures and 
records of inspections for each facility in the SPCC Plan. You must 
include the inspection records for each container, secondary 
containment, and item of response equipment at the facility. You must 
cross-reference the records of inspections of each container and 
secondary containment required by 40 CFR 112.7(e) in the facility 
response plan. The inspection record of response equipment is a new 
requirement in this plan. Facility self-inspection requires two-steps: 
(1) a checklist of things to inspect; and (2) a method of recording the 
actual inspection and its findings. You must note the date of each 
inspection. You must keep facility response plan records for five years. 
You must keep SPCC records for three years.

                        1.8.1.1. Tank Inspection

    The tank inspection checklist presented below has been included as 
guidance during inspections and monitoring. Similar requirements exist 
in 40 CFR part 112, subparts A through C. Duplicate information from the 
SPCC Plan may be photocopied and inserted in this section. The 
inspection checklist consists of the following items:

                        Tank Inspection Checklist

1. Check tanks for leaks, specifically looking for:
    A. drip marks;
    B. discoloration of tanks;
    C. puddles containing spilled or leaked material;
    D. corrosion;
    E. cracks; and
    F. localized dead vegetation.
2. Check foundation for:
    A. cracks;
    B. discoloration;
    C. puddles containing spilled or leaked material;
    D. settling;
    E. gaps between tank and foundation; and
    F. damage caused by vegetation roots.
3. Check piping for:
    A. droplets of stored material;
    B. discoloration;
    C. corrosion;
    D. bowing of pipe between supports;
    E. evidence of stored material seepage from valves or seals; and
    F. localized dead vegetation.

                                     Tank/Surface Impoundment Inspection Log
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              Inspector                  Tank or SI              Date                   Comments
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                  1.8.1.2 Response Equipment Inspection

    Using the Emergency Response Equipment List provided in section 
1.3.2 of the response plan, describe each type of response equipment, 
checking for the following:

                      Response Equipment Checklist

    1. Inventory (item and quantity);
    2. Storage location;
    3. Accessibility (time to access and respond);
    4. Operational status/condition;
    5. Actual use/testing (last test date and frequency of testing); and
    6. Shelf life (present age, expected replacement date).

Please note any discrepancies between this list and the available 
response equipment.

                                        Response Equipment Inspection Log
                             [Use section 1.3.2 of the response plan as a checklist]
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              Inspector                               Date                                Comments
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                1.8.1.3 Secondary Containment Inspection

    Inspect the secondary containment (as described in sections 1.4.1 
and 1.7.2 of the response plan), checking the following:

                     Secondary Containment Checklist

1. Dike or berm system.
    A. Level of precipitation in dike/available capacity;
    B. Operational status of drainage valves;
    C. Dike or berm permeability;
    D. Debris;
    E. Erosion;
    F. Permeability of the earthen floor of diked area; and
    G. Location/status of pipes, inlets, drainage beneath tanks, etc.
2. Secondary containment
    A. Cracks;
    B. Discoloration;
    C. Presence of spilled or leaked material (standing liquid);
    D. Corrosion; and
    E. Valve conditions.
3. Retention and drainage ponds
    A. Erosion;
    B. Available capacity;
    C. Presence of spilled or leaked material;
    D. Debris; and
    E. Stressed vegetation.

The tank inspection checklist presented below has been included as 
guidance during inspections and monitoring. Similar requirements exist 
in 40 CFR part 112, subparts A through C. Similar requirements exist in 
40 CFR 112.7(e). Duplicate information from the SPCC Plan may be 
photocopied and inserted in this section.

                     1.8.2 Facility Drills/Exercises

    (A) CWA section 311(j)(5), as amended by OPA, requires the response 
plan to contain a description of facility drills/exercises. According to 
40 CFR 112.21(c), the facility owner or operator shall develop a program 
of facility response drills/exercises, including evaluation procedures. 
Following the PREP guidelines (see Appendix E to this part, section 13, 
for availability) would satisfy a facility's requirements for drills/
exercises under this part. Alternately, under Sec. 112.21(c), a 
facility owner or operator may develop a program that is not based on 
the PREP guidelines. Such a program is subject to approval by the 
Regional Administrator based on the description of the program provided 
in the response plan.
    (B) The PREP Guidelines specify that the facility conduct internal 
and external drills/exercises. The internal exercises include: qualified 
individual notification drills, spill management team tabletop 
exercises, equipment deployment exercises, and unannounced exercises. 
External exercises include Area Exercises. Credit for an Area or 
Facility-specific Exercise will be given to the facility for an actual 
response to a discharge in the area if the plan was utilized for 
response to the discharge and the objectives of the Exercise were met 
and were properly evaluated, documented, and self-certified.
    (C) Section 112.20(h)(8)(ii) requires the facility owner or operator 
to provide a description of the drill/exercise program to be carried out 
under the response plan. Qualified Individual Notification Drill and 
Spill Management Team Tabletop Drill logs shall be provided in sections 
1.8.2.1 and 1.8.2.2, respectively. These logs may be included in the 
facility response plan or kept as an annex to the facility response 
plan. See section 1.3.3 of this appendix for Equipment Deployment Drill 
Logs.

[[Page 112]]

          1.8.2.1 Qualified Individual Notification Drill Logs

               Qualified Individual Notification Drill Log

Date:___________________________________________________________________
Company:________________________________________________________________
Qualified Individual(s):________________________________________________
Emergency Scenario:_____________________________________________________
________________________________________________________________________
________________________________________________________________________
Evaluation:_____________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
Changes to be Implemented:______________________________________________
________________________________________________________________________
________________________________________________________________________
Time Table for Implementation:__________________________________________
________________________________________________________________________

          1.8.2.2 Spill Management Team Tabletop Exercise Logs

               Spill Management Team Tabletop Exercise Log

Date:___________________________________________________________________
Company:________________________________________________________________
Qualified Individual(s):________________________________________________
Emergency Scenario:_____________________________________________________
________________________________________________________________________
________________________________________________________________________
Evaluation:_____________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
Changes to be Implemented:______________________________________________
________________________________________________________________________
________________________________________________________________________
Time Table for Implementation:__________________________________________

                         1.8.3 Response Training

    Section 112.21(a) requires facility owners or operators to develop 
programs for facility response training. Facility owners or operators 
are required by Sec. 112.20(h)(8)(iii) to provide a description of the 
response training program to be carried out under the response plan. A 
facility's training program can be based on the USCG's Training Elements 
for Oil Spill Response, to the extent applicable to facility operations, 
or another response training program acceptable to the RA. The training 
elements are available from the USCG Office of Response (G-MOR) at (202) 
267-0518 or fax (202) 267-4085. Personnel response training logs and 
discharge prevention meeting logs shall be included in sections 1.8.3.1 
and 1.8.3.2 of the response plan respectively. These logs may be 
included in the facility response plan or kept as an annex to the 
facility response plan.

                1.8.3.1 Personnel Response Training Logs

                     Personnel Response Training Log
------------------------------------------------------------------------
                               Response training/   Prevention training/
            Name               date and number of    date and number of
                                      hours                 hours
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               1.8.3.2 Discharge Prevention Meetings Logs

                    Discharge Prevention Meeting Log

Date:___________________________________________________________________

Attendees:______________________________________________________________

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________


[[Page 113]]

________________________________________________________________________

------------------------------------------------------------------------
  Subject/issue identified       Required action     Implementation date
------------------------------------------------------------------------
 
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                              1.9 Diagrams

    The facility-specific response plan shall include the following 
diagrams. Additional diagrams that would aid in the development of 
response plan sections may also be included.

(1) The Site Plan Diagram shall, as appropriate, include and identify:
    (A) the entire facility to scale;
    (B) above and below ground bulk oil storage tanks;
    (C) the contents and capacities of bulk oil storage tanks;
    (D) the contents and capacity of drum oil storage areas;
    (E) the contents and capacities of surface impoundments;
    (F) process buildings;
    (G) transfer areas;
    (H) secondary containment systems (location and capacity);
    (I) structures where hazardous materials are stored or handled, 
including materials stored and capacity of storage;
    (J) location of communication and emergency response equipment;
    (K) location of electrical equipment which contains oil; and
    (L) for complexes only, the interface(s) (i.e., valve or component) 
between the portion of the facility regulated by EPA and the portion(s) 
regulated by other Agencies. In most cases, this interface is defined as 
the last valve inside secondary containment before piping leaves the 
secondary containment area to connect to the transportation-related 
portion of the facility (i.e., the structure used or intended to be used 
to transfer oil to or from a vessel or pipeline). In the absence of 
secondary containment, this interface is the valve manifold adjacent to 
the tank nearest the transfer structure as described above. The 
interface may be defined differently at a specific facility if agreed to 
by the RA and the appropriate Federal official.
(2) The Site Drainage Plan Diagram shall, as appropriate, include:
    (A) major sanitary and storm sewers, manholes, and drains;
    (B) weirs and shut-off valves;
    (C) surface water receiving streams;
    (D) fire fighting water sources;
    (E) other utilities;
    (F) response personnel ingress and egress;
    (G) response equipment transportation routes; and
    (H) direction of discharge flow from discharge points.
(3) The Site Evacuation Plan Diagram shall, as appropriate, include:
    (A) site plan diagram with evacuation route(s); and
    (B) location of evacuation regrouping areas.

                              1.10 Security

    According to 40 CFR 112.7(g) facilities are required to maintain a 
certain level of security, as appropriate. In this section, a 
description of the facility security shall be provided and include, as 
appropriate:

(1) emergency cut-off locations (automatic or manual valves);
(2) enclosures (e.g., fencing, etc.);
(3) guards and their duties, day and night;
(4) lighting;
(5) valve and pump locks; and
(6) pipeline connection caps.

The SPCC Plan contains similar information. Duplicate information may be 
photocopied and inserted in this section.

                      2.0 Response Plan Cover Sheet

    A three-page form has been developed to be completed and submitted 
to the RA by owners or operators who are required to prepare and submit 
a facility-specific response plan. The cover sheet (Attachment F-1) must 
accompany the response plan to provide the Agency with basic information 
concerning the facility. This section will describe the Response Plan 
Cover Sheet and provide instructions for its completion.

                         2.1 General Information

    Owner/Operator of Facility: Enter the name of the owner of the 
facility (if the owner is the operator). Enter the operator of the 
facility if otherwise. If the owner/operator of

[[Page 114]]

the facility is a corporation, enter the name of the facility's 
principal corporate executive. Enter as much of the name as will fit in 
each section.
    (1) Facility Name: Enter the proper name of the facility.
    (2) Facility Address: Enter the street address, city, State, and zip 
code.
    (3) Facility Phone Number: Enter the phone number of the facility.
    (4) Latitude and Longitude: Enter the facility latitude and 
longitude in degrees, minutes, and seconds.
    (5) Dun and Bradstreet Number: Enter the facility's Dun and 
Bradstreet number if available (this information may be obtained from 
public library resources).
    (6) North American Industrial Classification System (NAICS) Code: 
Enter the facility's NAICS code as determined by the Office of 
Management and Budget (this information may be obtained from public 
library resources.)
    (7) Largest Oil Storage Tank Capacity: Enter the capacity in GALLONS 
of the largest aboveground oil storage tank at the facility.
    (8) Maximum Oil Storage Capacity: Enter the total maximum capacity 
in GALLONS of all aboveground oil storage tanks at the facility.
    (9) Number of Oil Storage Tanks: Enter the number of all aboveground 
oil storage tanks at the facility.
    (10) Worst Case Discharge Amount: Using information from the 
worksheets in Appendix D, enter the amount of the worst case discharge 
in GALLONS.
    (11) Facility Distance to Navigable Waters: Mark the appropriate 
line for the nearest distance between an opportunity for discharge 
(i.e., oil storage tank, piping, or flowline) and a navigable water.

             2.2 Applicability of Substantial Harm Criteria

    Using the flowchart provided in Attachment C-I to Appendix C to this 
part, mark the appropriate answer to each question. Explanations of 
referenced terms can be found in Appendix C to this part. If a 
comparable formula to the ones described in Attachment C-III to Appendix 
C to this part is used to calculate the planning distance, documentation 
of the reliability and analytical soundness of the formula must be 
attached to the response plan cover sheet.

                            2.3 Certification

    Complete this block after all other questions have been answered.

                              3.0 Acronyms

ACP: Area Contingency Plan
ASTM: American Society of Testing Materials
bbls: Barrels
bpd: Barrels per Day
bph: Barrels per Hour
CHRIS: Chemical Hazards Response Information System
CWA: Clean Water Act
DOI: Department of Interior
DOC: Department of Commerce
DOT: Department of Transportation
EPA: Environmental Protection Agency
FEMA: Federal Emergency Management Agency
FR: Federal Register
gal: Gallons
gpm: Gallons per Minute
HAZMAT: Hazardous Materials
LEPC: Local Emergency Planning Committee
MMS: Minerals Management Service (part of DOI)
NAICS: North American Industrial Classification System
NCP: National Oil and Hazardous Substances Pollution Contingency Plan
NOAA: National Oceanic and Atmospheric Administration (part of DOC)
NRC: National Response Center
NRT: National Response Team
OPA: Oil Pollution Act of 1990
OSC: On-Scene Coordinator
PREP: National Preparedness for Response Exercise Program
RA: Regional Administrator
RCRA: Resource Conservation and Recovery Act
RRC: Regional Response Centers
RRT: Regional Response Team
RSPA: Research and Special Programs Administration
SARA: Superfund Amendments and Reauthorization Act
SERC: State Emergency Response Commission
SDWA: Safe Drinking Water Act of 1986
SI: Surface Impoundment
SPCC: Spill Prevention, Control, and Countermeasures
USCG: United States Coast Guard

                             4.0 References

    CONCAWE. 1982. Methodologies for Hazard Analysis and Risk Assessment 
in the Petroleum Refining and Storage Industry. Prepared by CONCAWE's 
Risk Assessment Ad-hoc Group.
    U.S. Department of Housing and Urban Development. 1987. Siting of 
HUD-Assisted Projects Near Hazardous Facilities: Acceptable Separation 
Distances from Explosive and Flammable Hazards. Prepared by the Office 
of Environment and Energy, Environmental Planning Division, Department 
of Housing and Urban Development. Washington, DC.
    U.S. DOT, FEMA and U.S. EPA. Handbook of Chemical Hazard Analysis 
Procedures.
    U.S. DOT, FEMA and U.S. EPA. Technical Guidance for Hazards 
Analysis: Emergency

[[Page 115]]

Planning for Extremely Hazardous Substances.
    The National Response Team. 1987. Hazardous Materials Emergency 
Planning Guide. Washington, DC.
    The National Response Team. 1990. Oil Spill Contingency Planning, 
National Status: A Report to the President. Washington, DC. U.S. 
Government Printing Office.
    Offshore Inspection and Enforcement Division. 1988. Minerals 
Management Service, Offshore Inspection Program: National Potential 
Incident of Noncompliance (PINC) List. Reston, VA.

                        Attachments to Appendix F

                Attachment F-1--Response Plan Cover Sheet

    This cover sheet will provide EPA with basic information concerning 
the facility. It must accompany a submitted facility response plan. 
Explanations and detailed instructions can be found in Appendix F. 
Please type or write legibly in blue or black ink. Public reporting 
burden for the collection of this information is estimated to vary from 
1 hour to 270 hours per response in the first year, with an average of 5 
hours per response. This estimate includes time for reviewing 
instructions, searching existing data sources, gathering the data 
needed, and completing and reviewing the collection of information. Send 
comments regarding the burden estimate of this information, including 
suggestions for reducing this burden to: Chief, Information Policy 
Branch, Mail Code: PM-2822, U.S. Environmental Protection Agency, Ariel 
Rios Building, 1200 Pennsylvania Avenue, NW., Washington, DC 20460; and 
to the Office of Information and Regulatory Affairs, Office of 
Management and Budget, Washington D.C. 20503.

                           General Information

Owner/Operator of Facility:_____________________________________________

Facility Name:__________________________________________________________

Facility Address (street address or route):_____________________________

City, State, and U.S. Zip Code:_________________________________________

Facility Phone No.:_____________________________________________________

Latitude (Degrees: North):

________________________________________________________________________
degrees, minutes, seconds

Dun & Bradstreet Number: \1\____________________________________________
---------------------------------------------------------------------------

    \1\ These numbers may be obtained from public library resources.

---------------------------------------------------------------------------
Largest Aboveground Oil Storage Tank Capacity (Gallons):________________

Number of Aboveground Oil Storage Tanks:

________________________________________________________________________



Longitude (Degrees: West):

________________________________________________________________________
degrees, minutes, seconds

North American Industrial Classification System (NAICS) Code: \1\_______

Maximum Oil Storage Capacity (Gallons):_________________________________

Worst Case Oil Discharge Amount (Gallons):______________________________

________________________________________________________________________

Facility Distance to Navigable Water. Mark the appropriate line.________
0-\1/4\ mile ---- \1/4\-\1/2\ mile ---- \1/2\-1 mile ---- 1 
          mile ----

               Applicability of Substantial Harm Criteria

    Does the facility transfer oil over-water \2\ to or from vessels and 
does the facility have a total oil storage capacity greater than or 
equal to 42,000 gallons?
---------------------------------------------------------------------------

    \2\ Explanations of the above-referenced terms can be found in 
Appendix C to this part. If a comparable formula to the ones contained 
in Attachment C-III is used to establish the appropriate distance to 
fish and wildlife and sensitive environments or public drinking water 
intakes, documentation of the reliability and analytical soundness of 
the formula must be attached to this form.
---------------------------------------------------------------------------

Yes_____________________________________________________________________

No______________________________________________________________________

    Does the facility have a total oil storage capacity greater than or 
equal to 1 million gallons and, within any storage area, does the 
facility lack secondary containment \2\ that is sufficiently large to 
contain the capacity of the largest aboveground oil storage tank plus 
sufficient freeboard to allow for precipitation?

Yes_____________________________________________________________________

No______________________________________________________________________

    Does the facility have a total oil storage capacity greater than or 
equal to 1 million gallons and is the facility located at a distance \2\ 
(as calculated using the appropriate formula in Appendix C or a 
comparable formula) such that a discharge from the facility could cause 
injury to fish and wildlife and sensitive environments? \3\
---------------------------------------------------------------------------

    \3\ For further description of fish and wildlife and sensitive 
environments, see Appendices I, II, and III to DOC/NOAA's ``Guidance for 
Facility and Vessel Response Plans: Fish and Wildlife and Sensitive 
Environments'' (see Appendix E to this part, section 13, for 
availability) and the applicable ACP.

---------------------------------------------------------------------------
Yes_____________________________________________________________________

No______________________________________________________________________

Does the facility have a total oil storage capacity greater than or 
equal to 1 million gallons and is the facility located at a distance \2\ 
(as calculated using the appropriate

[[Page 116]]

formula in Appendix C or a comparable formula) such that a discharge 
from the facility would shut down a public drinking water intake? \2\___

Yes_____________________________________________________________________

No______________________________________________________________________

    Does the facility have a total oil storage capacity greater than or 
equal to 1 million gallons and has the facility experienced a reportable 
oil spill \2\ in an amount greater than or equal to 10,000 gallons 
within the last 5 years?

Yes_____________________________________________________________________

No______________________________________________________________________

                              Certification

    I certify under penalty of law that I have personally examined and 
am familiar with the information submitted in this document, and that 
based on my inquiry of those individuals responsible for obtaining 
information, I believe that the submitted information is true, accurate, 
and complete.

Signature:______________________________________________________________

Name (Please type or print):____________________________________________

Title:__________________________________________________________________

Date:___________________________________________________________________

[59 FR 34122, July 1, 1994; 59 FR 49006, Sept. 26, 1994, as amended at 
65 FR 40816, June 30, 2000; 65 FR 43840, July 14, 2000; 66 FR 34561, 
June 29, 2001; 67 FR 47152, July 17, 2002]



    Sec. Appendix G to Part 112--Tier I Qualified Facility SPCC Plan

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[74 FR 74306, Dec. 5, 2008]

    Effective Date Note: At 74 FR 74306, Dec. 5, 2008, appendix G was 
added, effective Feb. 3, 2009. At 74 FR 5900, Feb. 3, 2009, this 
amendment was delayed. At 74 FR 14736, Apr. 1, 2009, this amendment was 
further delayed to January 14, 2010.



PART 113_LIABILITY LIMITS FOR SMALL ONSHORE STORAGE FACILITIES--Table of 

Contents




                    Subpart A_Oil Storage Facilities

Sec.
113.1 Purpose.
113.2 Applicability.
113.3 Definitions.
113.4 Size classes and associated liability limits for fixed onshore oil 
          storage facilities, 1,000 barrels or less capacity.
113.5 Exclusions.
113.6 Effect on other laws.

    Authority: Sec. 311(f)(2), 86 Stat. 867 (33 U.S.C. 1251 (1972)).

    Source: 38 FR 25440, Sept. 13, 1973, unless otherwise noted.



                    Subpart A_Oil Storage Facilities



Sec. 113.1  Purpose.

    This subpart establishes size classifications and associated 
liability limits for small onshore oil storage facilities with fixed 
capacity of 1,000 barrels or less.

[[Page 134]]



Sec. 113.2  Applicability.

    This subpart applies to all onshore oil storage facilities with 
fixed capacity of 1,000 barrels or less. When a discharge to the waters 
of the United States occurs from such facilities and when removal of 
said discharge is performed by the United States Government pursuant to 
the provisions of subsection 311(c)(1) of the Act, the liability of the 
owner or operator and the facility will be limited to the amounts 
specified in Sec. 113.4.



Sec. 113.3  Definitions.

    As used in this subpart, the following terms shall have the meanings 
indicated below:
    (a) Aboveground storage facility means a tank or other container, 
the bottom of which is on a plane not more than 6 inches below the 
surrounding surface.
    (b) Act means the Federal Water Pollution Control Act, as amended, 
33 U.S.C. 1151, et seq.
    (c) Barrel means 42 United States gallons at 60 degrees Fahrenheit.
    (d) Belowground storage facility means a tank or other container 
located other than as defined as ``Aboveground''.
    (e) Discharge includes, but is not limited to any spilling, leaking, 
pumping, pouring, emitting, emptying or dumping.
    (f) Onshore Oil Storage Facility means any facility (excluding motor 
vehicles and rolling stock) of any kind located in, on, or under, any 
land within the United States, other than submerged land.
    (g) On-Scene Coordinator is the single Federal representative 
designated pursuant to the National Oil and Hazardous Substances 
Pollution Contingency Plan and identified in approved Regional Oil and 
Hazardous Substances Pollution Contingency Plans.
    (h) Oil means oil of any kind or in any form, including but not 
limited to, petroleum, fuel oil, sludge, oil refuse, and oil mixed with 
wastes other than dredged spoil.
    (i) Remove or removal means the removal of the oil from the water 
and shorelines or the taking of such other actions as the Federal On-
Scene Coordinator may determine to be necessary to minimize or mitigate 
damage to the public health or welfare, including but not limited to, 
fish, shellfish, wildlife, and public and private property, shorelines, 
and beaches.

Additionally, the terms not otherwise defined herein shall have the 
meanings assigned them by section 311(a) of the Act.



Sec. 113.4  Size classes and associated liability limits for fixed onshore oil 

storage facilities, 1,000 barrels or less capacity.

    Unless the United States can show that oil was discharged as a 
result of willful negligence or willful misconduct within the privity 
and knowledge of the owner or operator, the following limits of 
liability are established for fixed onshore facilities in the classes 
specified:
    (a) Aboveground storage.

------------------------------------------------------------------------
                                                                 Limit
             Size class                  Capacity (barrels)    (dollars)
------------------------------------------------------------------------
I...................................  Up to 10...............      4,000
II..................................  11 to 170..............     60,000
III.................................  171 to 500.............    150,000
IV..................................  501 to 1,000...........    200,000
------------------------------------------------------------------------

    (b) Belowground storage.

------------------------------------------------------------------------
                                                                 Limit
             Size class                  Capacity (barrels)    (dollars)
------------------------------------------------------------------------
I...................................  Up to 10...............      5,200
II..................................  11 to 170..............     78,000
III.................................  171 to 500.............    195,000
IV..................................  501 to 1,000...........    260,000
------------------------------------------------------------------------



Sec. 113.5  Exclusions.

    This subpart does not apply to:
    (a) Those facilities whose average daily oil throughout is more than 
their fixed oil storage capacity.
    (b) Vehicles and rolling stock.



Sec. 113.6  Effect on other laws.

    Nothing herein shall be construed to limit the liability of any 
facility under State or local law or under any Federal law other than 
section 311 of the Act, nor shall the liability of any facility for any 
charges or damages under State or local law reduce its liability to the 
Federal Government under section 311 of the Act, as limited by this 
subpart.

[[Page 135]]



PART 116_DESIGNATION OF HAZARDOUS SUBSTANCES--Table of Contents




Sec.
116.1 Applicability.
116.2 Abbreviations.
116.3 Definitions.
116.4 Designation of hazardous substances.

    Authority: Secs. 311(b)(2)(A) and 501(a), Federal Water Pollution 
Control Act (33 U.S.C. 1251 et seq.).



Sec. 116.1  Applicability.

    This regulation designates hazardous substances under section 
311(b)(2)(A) of the Federal Water Pollution Control Act (the Act). The 
regulation applies to discharges of substances designated in Table 
116.4.

[43 FR 10474, Mar. 13, 1978]



Sec. 116.2  Abbreviations.

ppm=parts per million
mg=milligram(s)
kg=kilogram(s)
mg/l=milligrams(s) per liter= (approx.) ppm
mg/kg=milligram(s) per kilogram= (approx.) ppm

[43 FR 10474, Mar. 13, 1978]



Sec. 116.3  Definitions.

    As used in this part, all terms shall have the meaning defined in 
the Act and as given below:
    The Act means the Federal Water Pollution Control Act, as amended by 
the Federal Water Pollution Control Act Amendments of 1972 (Pub. L. 92-
500), and as further amended by the Clean Water Act of 1977 (Pub. L. 95-
217), 33 U.S.C. 1251 et seq.; and as further amended by the Clean Water 
Act Amendments of 1978 (Pub. L. 95-676);
    Animals means appropriately sensitive animals which carry out 
respiration by means of a lung structure permitting gaseous exchange 
between air and the circulatory system;
    Aquatic animals means appropriately sensitive wholly aquatic animals 
which carry out respiration by means of a gill structure permitting 
gaseous exchange between the water and the circulatory system;
    Aquatic flora means plant life associated with the aquatic eco-
system including, but not limited to, algae and higher plants;
    Contiguous zone means the entire zone established or to be 
established by the United States under article 24 of the Convention of 
the Territorial Sea and the Contiguous Zone;
    Discharge includes, but is not limited to, any spilling, leaking, 
pumping, pouring, emitting, emptying or dumping, but excludes (A) 
discharges in compliance with a permit under section 402 of this Act, 
(B) discharges resulting from circumstances identified and reviewed and 
made a part of the public record with respect to a permit issued or 
modified under section 402 of this Act, and subject to a condition in 
such permit, and (C) continuous or anticipated intermittent discharges 
from a point source, identified in a permit or permit application under 
section 402 of this Act, which are caused by events occurring within the 
scope of relevant operating or treatment systems;
    LC50 means that concentration of material which is lethal to one-
half of the test population of aquatic animals upon continuous exposure 
for 96 hours or less.
    Mixture means any combination of two or more elements and/or 
compounds in solid, liquid, or gaseous form except where such substances 
have undergone a chemical reaction so as to become inseparable by 
physical means.
    Navigable waters is defined in section 502(7) of the Act to mean 
``waters of the United States, including the territorial seas,'' and 
includes, but is not limited to:
    (1) All waters which are presently used, or were used in the past, 
or may be susceptible to use as a means to transport interstate or 
foreign commerce, including all waters which are subject to the ebb and 
flow of the tide, and including adjacent wetlands; the term wetlands as 
used in this regulation shall include those areas that are inundated or 
saturated by surface or ground water at a frequency and duration 
sufficient to support, and that under normal circumstances do support, a 
prevelance of vegetation typically adapted for life in saturated soil 
conditions. Wetlands generally include swamps, marshes, bogs and similar 
areas; the term adjacent means bordering, contiguous or neighboring;

[[Page 136]]

    (2) Tributaries of navigable waters of the United States, including 
adjacent wetlands;
    (3) Interstate waters, including wetlands; and
    (4) All other waters of the United States such as intrastate lakes, 
rivers, streams, mudflats, sandflats and wetlands, the use, degradation 
or destruction of which affect interstate commerce including, but not 
limited to:
    (i) Intrastate lakes, rivers, streams, and wetlands which are 
utilized by interstate travelers for recreational or other purposes; and
    (ii) Intrastate lakes, rivers, streams, and wetlands from which fish 
or shellfish are or could be taken and sold in interstate commerce; and
    (iii) Intrastate lakes, rivers, streams, and wetlands which are 
utilized for industrial purposes by industries in interstate commerce.


Navigable waters do not include prior converted cropland. 
Notwithstanding the determination of an area's status as prior converted 
cropland by any other federal agency, for the purposes of the Clean 
Water Act, the final authority regarding Clean Water Act jurisdiction 
remains with EPA.
    Offshore facility means any facility of any kind located in, on, or 
under, any of the navigable waters of the United States, and any 
facility of any kind which is subject to the jurisdiction of the United 
States and is located in, on, or under any other waters, other than a 
vessel or a public vessel;
    Onshore facility means any facility (including, but not limited to, 
motor vehicles and rolling stock) of any kind located in, on, or under, 
any land within the United States other than submerged land;
    Otherwise subject to the jurisdiction of the United States means 
subject to the jurisdiction of the United States by virtue of United 
States citizenship, United States vessel documentation or numbering, or 
as provided for by international agreement to which the United States is 
a party.
    A discharge in connection with activities under the Outer 
Continental Shelf Lands Act or the Deepwater Port Act of 1974, or which 
may affect natural resources belonging to, appertaining to, or under the 
exclusive management authority of the United States (including resources 
under the Fishery Conservation and Management Act of 1976), means: (1) A 
discharge into any waters beyond the contiguous zone from any vessel or 
onshore or offshore facility, which vessel or facility is subject to or 
is engaged in activities under the Outer Continental Shelf Lands Act or 
the Deepwater Port Act of 1974, and (2) any discharge into any waters 
beyond the contiguous zone which contain, cover, or support any natural 
resource belonging to, appertaining to, or under the exclusive 
management authority of the United States (including resources under the 
Fishery Conservation and Management Act of 1976).
    Public vessel means a vessel owned or bareboat-chartered and 
operated by the United States, or a State or political subdivision 
thereof, or by a foreign nation, except when such vessel is engaged in 
commerce.
    Territorial seas means the belt of the seas measured from the line 
of ordinary low water along that portion of the coast which is in direct 
contact with the open sea and the line marking the seaward limit of 
inland waters, and extending seaward a distance of 3 miles.
    Vessel means every description of watercraft or other artificial 
contrivance used, or capable of being used, as a means of transportation 
on water other than a public vessel;

[43 FR 10474, Mar. 13, 1978; 43 FR 27533, June 26, 1978, as amended at 
44 FR 10266, Feb. 16, 1979; 58 FR 45039, Aug. 25, 1993]



Sec. 116.4  Designation of hazardous substances.

    The elements and compounds appearing in Tables 116.4 A and B are 
designated as hazardous substances in accordance with section 
311(b)(2)(A) of the Act. This designation includes any isomers and 
hydrates, as well as any solutions and mixtures containing these 
substances. Synonyms and Chemical Abstract System (CAS) numbers have 
been added for convenience of the user only. In case of any disparity 
the common names shall be considered the designated substance.

[[Page 137]]



                                   Table 116.4A--List of Hazardous Substances
----------------------------------------------------------------------------------------------------------------
            Common name                CAS No.             Synonyms                   Isomers           CAS No.
----------------------------------------------------------------------------------------------------------------
Acetaldehyde.......................       75070  Ethanal, ethyl aldehyde,
                                                  acetic aldehyde.
Acetic acid........................       64197  Glacial acetic acid,
                                                  vinegar acid.
Acetic anhydride...................      108247  Acetic oxide, acetyl oxide.
Acetone cyanohydrin................       75865  2-methyllactonitrile, alpha-
                                                  hydroxyisobutyronitrile.
Acetyl bromide.....................      506967
Acetyl chloride....................       79367
Acrolein...........................      107028  2-propenal, acrylic
                                                  aldehyde, acrylaldehyde,
                                                  acraldehyde.
Acrylonitrile......................      107131  Cyanoethylene, Fumigrain,
                                                  Ventox, propeneitrile,
                                                  vinyl cyanide.
Adipic acid........................      124049  Hexanedioic acid...........
Aldrin.............................      309002  Octalene, HHDN.............
Allyl alcohol......................      107186  2-propen-1-ol, 1-propenol-
                                                  3, vinyl carbinol.
Allyl chloride.....................      107051  3-chloropropene, 3-
                                                  chloropropylene,
                                                  Chlorallylene.
Aluminum sulfate...................    10043013  Alum.......................
Ammonia............................     7664417
Ammonium acetate...................      631618  Acetic acid ammonium, salt.
Ammonium benzoate..................     1863634
Ammonium bicarbonate...............     1066337  Acid ammonium carbonate,
                                                  ammonium hydrogen
                                                  carbonate.
Ammonium bichromate................     7789095
Ammonium bifluoride................     1341497  Acid ammonium fluoride,
                                                  ammonium hydrogen fluoride.
Ammonium bisulfite.................    10192300
Ammonium carbamate.................     1111780  Ammonium aminoformate......
Ammonium carbonate.................      506876
Ammonium chloride..................    12125029  Ammonium muriate, sal
                                                  ammoniac, salmiac, Amchlor.
Ammonium chromate..................     7788989
Ammonium citrate dibasic...........     3012655  Diammonium citrate, citric
                                                  acid diammonium salt.
Ammonium fluoborate................    13826830  Ammonium fluoroborate,
                                                  ammonium borofluoride.
Ammonium fluoride..................    12125018  Neutral ammonium fluoride..
Ammonium hydroxide.................     1336216
Ammonium oxalate...................     6009707
                                        5972736
                                       14258492
Ammonium silicofluoride............    16919190  Ammonium fluosilicate......
Ammonium sulfamate.................     7773060  Ammate, AMS, ammonium
                                                  amidosulfate.
Ammonium sulfide...................    12135761
Ammonium sulfite...................    10196040
                                       10192300
Ammonium tartrate..................     3164292  Tartaric acid ammonium salt
                                       14307438
Ammonium thiocyanate...............     1762954  Ammonium rhodanide,
                                                  ammonium sulfocyanate,
                                                  ammonium sulfocyanide.
Amly acetate.......................      628637  Amylacetic ester...........  iso-..................      123922
                                                 Pear oil...................  sec-..................      626380
                                                 Banana oil.................  tert-.................      625161
Aniline............................       62533  Aniline oil, phenylamine,
                                                  aminobenzene, aminophen,
                                                  kyanol.
Antimony pentachloride.............     7647189
Antimony potassium tartrate........    28300745  Tartar emetic, tartrated
                                                  antimony, tartarized
                                                  antimony, potassium
                                                  antimonyltartrate.
Antimony tribromide................     7789619
Antimony trichloride...............    10025919  Butter of antimony.........
Antimony trifluoride...............     7783564  Antimony fluoride..........
Antimony trioxide..................     1309644  Diantimony trioxide,
                                                  flowers of antimony.
Arsenic disulfide..................     1303328  Red arsenic sulfide........
Arsenic pentoxide..................     1303282  Arsenic acid anhydride,
                                                  arsenic oxide.
Arsenic trichloride................     7784341  Arsenic chloride, arsenious
                                                  chloride, arsenous
                                                  chloride, butter of
                                                  arsenic.
Arsenic trioxide...................     1327533  Arsenious acid, arsenious
                                                  oxide, white arsenic.
Arsenic trisulfide.................     1303339  Arsenious sulfide, yellow
                                                  arsenic sulfide.
Barium cyanide.....................      542621
Benzene............................       71432  Cyclohexatriene, benzol....
Benzoic acid.......................       65850  Benzenecarboxylic acid,
                                                  phenylformic acid,
                                                  dracylic acid.
Benzonitrile.......................      100470  Phenyl cyanide,
                                                  cyanobenzene.

[[Page 138]]

 
Benzoyl chloride...................       98884  Benzenecarbonyl chloride...
Benzyl chloride....................      100447
Beryllium chloride.................     7787475
Beryllium fluoride.................     7787497
Beryllium nitrate..................     7787555
                                       13597994
Butyl acetate......................      123864  Acetic acid butyl ester....  iso-..................      110190
                                                                              sec-..................      105464
                                                                              tert-.................      540885
Butylamine.........................      109739  1-aminobutane..............  iso-..................       78819
                                                                              sec-..................      513495
                                                                              sec-..................    13952846
                                                                              tert-.................       75649
n/butyl phthalate..................       84742  1.2-benzenedicarboxylic
                                                  acid, dibutyl ester,
                                                  dibutyl phthalate.
Butyric acid.......................      107926  Butanoic acid, ethylacetic   iso-..................       79312
                                                  acid.
Cadmium acetate....................      543908
Cadmium bromide....................     7789426
Cadmium chloride...................    10108642
Calcium arsenate...................     7778441  Tricalcium orthoarsenate...
Calcium arsenite...................    52740166
Calcium carbide....................       75207  Carbide, acetylenogen......
Calcium chromate...................    13765190  Calcium chrome yellow,
                                                  geblin, yellow ultramarine.
Calcium cyanide....................      592018
Calcium dodecylbenzenesulfonate....    26264062
Calcium hypochlorite...............     7778543
Captan.............................      133062  Orthocide-406, SR-406,
                                                  Vancide-89.
Carbaryl...........................       63252  Sevin......................
Carbofuran.........................     1563662  Furadan....................
Carbon disulfide...................       75150  Carbon bisulfide,
                                                  dithiocarbonic anhydride.
Carbon tetrachloride...............       56235  Tetrachloromethane
                                                  Perchloromethane.
Chlordane..........................       57749  Toxichlor, chlordan........
Chlorine...........................       75003
Chlorobenzene......................      108907  Monochlorobenzene, benzene
                                                  chloride.
Chloroform.........................       67663  Trichloromethane...........
Chlorpyrifos.......................     2921882  Dursban....................
Chlorosulfonic acid................     7790945  Sulfuric chlorohydrin......
Chromic acetate....................     1066304
Chromic acid.......................    11115745  Chromic anhydride, chromium
                                                  trioxide.
Chromic sulfate....................    10101538
Chromous chloride..................    10049055
Cobaltous bromide..................     7789437  Cobalt bromide.............
Coabaltous formate.................      544183  Cobalt formate.............
Cobaltous sulfamate................    14017415  Cobalt sulfamate...........
Coumaphos..........................       56724  Co-Ral.....................
Cresol.............................     1319773  Cresylic acid..............  m-....................      108394
                                                 Hydroxytoluene.............  o-....................       95487
                                                                              p-....................      106445
Crotonaldehyde.....................     4170303  2-butenal propylene
                                                  aldelhyde.
Cupric acetate.....................      142712  Copper acetate, crystalized
                                                  verdigris.
Cupric acetoarsenite...............    12002038  Copper acetoarsenite,
                                                  copper acetate arsenite,
                                                  Paris green.
Cupric chloride....................     7447394  Copper chloride............
Cupric nitrate.....................     3251238  Copper nitrate.............
Cupric oxalate.....................     5893663  Copper oxalate.............
Cupric sulfate.....................     7758987  Copper sulfate.............
Cupric sulfate, ammoniated.........    10380297  Ammoniated copper sulfate..
Cupric tartrate....................      815827  Copper tartrate............
Cyanogen chloride..................      506774
Cyclohexane........................      110827  Hexahydrobenzene,
                                                  hexamethylene,
                                                  hexanaphthene.
2,4-D acid.........................       94757  2,4-dichlorophenoxyacetic
                                                  acid.
2,4-D ester........................       94111  2,4-dichlorophenoxyacetic
                                                  acid ester.
                                          94791
                                          94804
                                        1320189
                                        1928387
                                        1928616
                                        1929733
                                        2971382
                                       25168267

[[Page 139]]

 
                                       53467111
DDT................................       50293  p,p'-DDT...................
Diazinon...........................      333415  Dipofene, Diazitol,
                                                  Basudin, Spectracide.
Dicamba............................     1918009  2-methoxy-3,6-
                                                  dichlorobenzoic acid.
Dichlobenil........................     1194656  2,6-dichlorobenzonitrile,
                                                  2,6-DBN.
Dichlone...........................      117806  Phygon,
                                                  dichloronaphthoquinone.
Dichlorobenzene....................    25321226  Di-chloricide..............  Ortho.................       95501
                                                 Paramoth (Para)............  Para..................      106467
Dichloropropane....................    26638197  Propylene dichloride.......  1,1...................       78999
                                                                              1,2...................       78875
                                                                              1,3...................      142289
Dichloropropene....................    26952238  ...........................  1,3...................      542756
                                                                              2,3...................       78886
Dichloropropene-dichloropropane         8003198  D-D mixture Vidden D.......
 (mixture).
2,2-Dichloropropionic acid.........       75990  Dalapon....................
Dichlorvos.........................       62737  2,2-dichlorovinyl dimethyl
                                                  phosphate, Vapona.
Dicofol............................      115322  Di(p-chlorophenyl)-
                                                  trichloromethylcarbinol,
                                                  DTMC, dicofol.
Dieldrin...........................       60571  Alvit......................
Diethylamine.......................      109897
Dimethylamine......................      124403
Dinitrobenzene (mixed).............    25154545  Dinitrobenzol..............  m-....................       99650
                                                                              o-....................      528290
                                                                              p-....................      100254
Dinitrophenol......................       51285  Aldifen....................  (2,5-)................      329715
                                                                              (2,4-)................
                                                                              (2,6-)................      573568
Dinitrotoluene.....................    25321146  DNT........................  2,4...................      121142
                                                                              2,6...................      606202
                                                                              3,4...................      610399
Diquat.............................       85007  Aquacide...................
                                        2764729  Dextrone, Reglone, Diquat
                                                  dibromide.
Disulfoton.........................      298044  Di-syston..................
Diuron.............................      330541  DCMU, DMU..................
Dodecylbenzenesulfonic acid........    27176870
Endosulfan.........................      115297  Thiodan....................
Endrin.............................       72208  Mendrin, Compound 269......
Epichlorohydrin....................      106898  -chloropropylene oxide.....
Ethion.............................      563122  Nialate, ethyl methylene,
                                                  phosphorodithioate.
Ethylbenzene.......................      100414  Phenylethane...............
Ethylenediamine....................      107153  1,2-diaminoethane..........
Ethylenediamine-tetraacetic acid          60004  Edetic acid, Havidote,
 (EDTA).                                          (ethylenedinitrilo)-
                                                  tetraacetic acid.
Ethylene dibromide.................      106934  1,2-dibromoethane acetylene
                                                  dibromide sym-
                                                  dibromoethylene.
Ethylene dichloride................      107062  1,2-dichloroethane sym-
                                                  bichloroethane.
Ferric ammonium citrate............     1185575  Ammonium ferric citrate....
Ferric ammonium oxalate............     2944674  Ammonium ferric oxalate....
                                       55488874
Ferric chloride....................     7705080  Flores martis, iron
                                                  trichloride.
Ferric fluoride....................     7783508
Ferric nitrate.....................    10421484  Iron nitrate...............
Ferric sulfate.....................    10028225  Ferric persulfate, ferric
                                                  sesquisulfate, ferric
                                                  tersulfate.
Ferrous ammonium sulfate...........    10045893  Mohr's salt, iron ammonium
                                                  sulfate.
Ferrous chloride...................     7758943  Iron chloride, iron
                                                  dichloride, iron
                                                  protochloride.
Ferrous sulfate....................     7720787  Green vitriol..............
                                        7782630  Iron vitriol, iron sulfate,
                                                  iron protosulfate.
Formaldehyde.......................       50000  Methyl aldehyde, methanal,
                                                  formalin.
Formic acid........................       64186  Methanoic acid.............
Fumaric acid.......................      110178  Trans-butenedioic acid,
                                                  trans-1,2-
                                                  ethylenedicarboxylic acid,
                                                  boletic acid, allomaleic
                                                  acid.
Furfural...........................       98011  2-furaldehyde, pyromucic
                                                  aldehyde.
Guthion............................       86500  Gusathion, azinphos-methyl.
Heptachlor.........................       76448  Velsicol-104, Drinox,
                                                  Heptagran.
Hexachlorocyclopentadiene..........       77474  Perchlorocyclopentadiene...
Hydrochloric acid..................     7647010  Hydrogen chloride, muriatic
                                                  acid.
Hydrofluoric acid..................     7664393  Fluohydric acid............
Hydrogen cyanide...................       74908  Hydrocyanic acid...........
Hydrogen sulfide...................     7783064  Hydrosulfuric acid sulfur
                                                  hydride.

[[Page 140]]

 
Isoprene...........................       78795  2-methyl-1,3-butadiene.....
Isopropanolamine                       42504461
 dodecylbenzenesulfonate.
Kepone.............................      143500  Chlordecone
                                                  1,1a,3,3a,4,5,5,5a,5b,6-
                                                  decachlorooctahydro-1,3,4-
                                                  metheno-2H-
                                                  cyclobuta(cd)pentalen-2-
                                                  one.
Lead acetate.......................      301042  Sugar of lead..............
Lead arsenate......................     7784409
                                        7645252
                                       10102484
Lead chloride......................     7758954
Lead fluoborate....................    13814965  Lead fluoroborate..........
Lead fluoride......................     7783462  Lead difluoride, plumbous
                                                  fluoride.
Lead iodide........................    10101630
Lead nitrate.......................    10099748
Lead stearate......................     7428480  Stearic acid lead salt.....
                                        1072351
                                       52652592
Lead sulfate.......................     7446142
Lead sulfide.......................     1314870  Galena.....................
Lead thiocyanate...................      592870  Lead sulfocyanate..........
Lindane............................       58899  Gamma-BHC, gamma-benzene
                                                  hexachloride.
Lithium chromate...................    14307358
Malathion..........................      121755  Phospothion................
Maleic acid........................      110167  Cis-butenedioic acid, cis-
                                                  1,2-ethylenedicarboxylic
                                                  acid, toxilic acid.
Maleic anhydride...................      108316  2,5-furandione, cis-
                                                  butenedioic anhydride,
                                                  toxilic anhydride.
Mercaptodimethur...................      203657  Mesurol....................
Mercuric cyanide...................      592041  Mercury cyanide............
Mercuric nitrate...................    10045940  Mercury nitrate, mercury
                                                  pernitrate.
Mercuric sulfate...................     7783359  Mercury sulfate, mercury
                                                  persulfate.
Mercuric thiocyanate...............      592858  Mercury thiocyanate,
                                                  mercuric sulfocyanate,
                                                  mercuric sulfocyanide.
Mercurous nitrate..................     7782867
                                       10415755  Mercury protonitrate.......
Methoxychlor.......................       72435  DMDT, methoxy-DDT..........
Methyl mercaptan...................       74931  Methanethiol,
                                                  mercaptomethane, methyl
                                                  sulfhydrate, thiomethyl
                                                  alcohol.
Methyl methacrylate................       80626  Methacrylic acid methyl
                                                  ester, methyl-2-methyl-2-
                                                  propenoate.
Methyl parathion...................      298000  Nitrox-80..................
Mevinphos..........................     7786347  Phosdrin...................
Mexacarbate........................      315184  Zectran....................
Monoethylamine.....................       75047  Ethylamine, aminoethane....
Monomethylamine....................       74895  Methylamine, aminomethane..
Naled..............................      300765  Dibrom.....................
Naphthalene........................       91203  White tar, tar camphor,
                                                  naphthalin.
Naphthenic acid....................     1338245  Cyclohexanecarboxylic acid,
                                                  hexahydrobenzoic acid.
Nickel ammonium sulfate............    15699180  Ammonium nickel sulfate....
Nickel chloride....................    37211055  Nickelous chloride.........
                                        7718549
Nickel hydroxide...................    12054487  Nickelous hydroxide........
Nickel nitrate.....................    14216752
Nickel sulfate.....................     7786814  Nickelous sulfate..........
Nitric acid........................     7697372  Aqua fortis................
Nitrobenzene.......................       98953  Nitrobenzol, oil of mirbane
Nitrogen dioxide...................    10102440  Nitrogen tetraoxide........
Nitrophenol (mixed)................    25154556  Mononitrophenol............  m-....................      554847
                                                                              o-....................       88755
                                                                              p-....................      100027
Nitrotoluene.......................     1321126  ...........................  Ortho.................       88722
                                                                              Meta..................       99081
                                                                              Para..................       99990
Paraformaldehyde...................    30525894  Paraform, Formagene,
                                                  Triformol, polymerized
                                                  formaldehyde,
                                                  polyoxymethylene.
Parathion..........................       56382  DNTP, Niran................
Pentachlorophenol..................       87865  PCP, Penta.................
Phenol.............................      108952  Carbolic acid, phenyl
                                                  hydroxide, hydroxybenzene,
                                                  oxybenzene.
Phosgene...........................       75445  Diphosgene, carbonyl
                                                  chloride, chloroformyl
                                                  chloride.

[[Page 141]]

 
Phosphoric acid....................     7664382  Orthophosphoric acid.......
Phosphorus.........................     7723140  Black phosphorus, red
                                                  phosphorus, white
                                                  phosphorus, yellow
                                                  phosphorus.
Phosphorus oxychloride.............    10025873  Phosphoryl chloride,
                                                  phosphorus chloride.
Phosphorus pentasulfide............     1314803  Phosphoric sulfide,
                                                  thiophosphoric anhydride,
                                                  phosphorus persulfide.
Phosphorus trichloride.............     7719122  Phosphorous chloride.......
Polychorinated biphenyls...........     1336363  PCB, Aroclor,
                                                  polychlorinated diphenyls.
Potassium arsenate.................     7784410
Potassium arsenite.................    10124502  Potassium metaarsenite.....
Potassium bichromate...............     7778509  Potassium dichromate.......
Potassium chromate.................     7789006
Potassium cyanide..................      151508
Potassium hydroxide................     1310583  Potassium hydrate, caustic
                                                  potash, potassa.
Potassium permanganate.............     7722647  Chameleon mineral..........
Propargite.........................     2312358  Omite......................
Propionic acid.....................       79094  Propanoic acid,
                                                  methylacetic acid,
                                                  ethylformic acid.
Propionic anhydride................      123626  Propanoic anhydride,
                                                  methylacetic anhydride.
Propylene oxide....................       75569  Propene oxide..............
Pyrethrins.........................      121299  Pyrethrin I................
                                         121211  Pyrethrin II...............
Quinoline..........................       91225  1-benzazine,
                                                  benzo(b)pyridine,
                                                  leuocoline, chinoleine,
                                                  leucol.
Resorcinol.........................      108463  Resorcin, 1,3-benzenediol,
                                                  meta-dihydroxybenzene.
Selenium oxide.....................     7446084  Selenium dioxide...........
Silver nitrate.....................     7761888  Nitric acid silver (1+)
                                                  salt lunar caustic.
Sodium.............................     7440235  Natrium....................
Sodium arsenate....................     7631892  Disodium arsenate..........
Sodium arsenite....................     7784465  Sodium metaarsenite........
Sodium bichromate..................    10588019  Sodium dichromate..........
Sodium bifluoride..................     1333831
Sodium bisulfite...................     7631905  Sodium acid sulfite, sodium
                                                  hydrogen sulfite.
Sodium chromate....................     7775113
Sodium cyanide.....................      143339
Sodium dodecylbenzene-sulfonate....    25155300
Sodium fluoride....................     7681494  Villiaumite................
Sodium hydrosulfide................    16721805  Sodium hydrogen sulfide....
Sodium hydroxide...................     1310732  Caustic soda, soda lye,
                                                  sodium hydrate.
Sodium hypochlorite................     7681529  Bleach.....................
                                       10022705
Sodium methylate...................      124414  Sodium methoxide...........
Sodium nitrite.....................     7632000
Sodium phosphate, dibasic..........     7558794
                                       10039324
                                       10140655
Sodium phosphate, tribasic.........     7785844
                                        7601549
                                       10101890
                                       10361894
                                        7758294
                                       10124568
Sodium selenite....................    10102188
                                        7782823
Strontium chromate.................     7789062
Strychnine.........................       57249
Styrene............................      100425  Vinylbenzene,
                                                  phenylethylene, styrol,
                                                  styrolene, cinnamene,
                                                  cinnamol.
Sulfuric acid......................     7664939  Oil of vitriol, oleum......
Sulfur monochloride................    12771083  Sulfur chloride............
2,4,5-T acid.......................       93765  2,4,5-
                                                  trichlorophenoxyacetic
                                                  acid.
2,4,5-T amines.....................     6369966  Acetic acid (2,4,5-
                                                  trichlorophenoxy)-compound
                                                  with N,N-
                                                  dimethylmethanamine (1:1).
                                        6369977  Acetic acid (2,4,5-
                                                  trichlorophenoxy)-compound
                                                  with N-methylmethanamine
                                                  (1:1).
                                        1319728  Acetic acid (2,4,5-
                                                  trichlorophenoxy)-compound
                                                  with 1-amino-2-propanol
                                                  (1:1).
                                        3813147  Acetic acid (2,4,5-
                                                  trichlorophenoxy)-compound
                                                  with 2,2'2''-nitrilotris
                                                  [ethanol] (1:1).
2,4,5-T esters.....................     2545597  2,4,5-
                                                  trichlorophenoxyacetic
                                                  esters.
                                          93798

[[Page 142]]

 
                                       61792072
                                        1928478
                                       25168154
2,4,5-T salts......................    13560991  Acetic acid (2,4,5-
                                                  trichlorophenoxy)-sodium
                                                  salt.
TDE................................       72548  DDD........................
2,4,5-TP acid......................       93721  Propanoic acid 2-(2,4,5-
                                                  trichlorophenoxy).
2,4,5-TP esters....................    32534955  Propanoic acid, 2-(2,4,5-
                                                  trichlorophenoxy)-,
                                                  isooctyl ester.
Tetraethyl lead....................       78002  Lead tetraethyl, TEL.......
Tetraethyl pyrophosphate...........      107493  TEPP.......................
Thallium sulfate...................    10031591
                                        7446186
Toluene............................      108883  Toluol, methylbenzene,
                                                  phenylmethane, Methacide.
Toxaphene..........................     8001352  Camphechlor................
Trichlorfon........................       52686  Dipterex...................
                                                 Dylox......................
Trichlorethylene...................       79016  Ethylene trichloride.......
Trichlorophenol....................    25167822  Collunosol, Dowicide 2 or    (2,3,4-)..............    15950660
                                                  2S, Omal, Phenachlor.       (2,3,5-)..............      933788
                                                                              (2,3,6-)..............      933755
                                                                              (2,4,5-)..............       95954
                                                                              (2,4,6-)..............       88062
                                                                              (3,4,5-)..............      609198
Triethanolamine                        27323417
 dodecylbenzenesulfonate.
Triethylamine......................      121448
Trimethylamine.....................       75503  TMA........................
Uranyl acetate.....................      541093
Uranyl nitrate.....................    10102064
                                       36478769
Vanadium pentoxide.................     1314621  Vanadic anhydride, vanadic
                                                  acid anhydride.
Vanadyl sulfate....................    27774136  Vanadic sulfate, vanadium
                                                  sulfate.
Vinyl acetate......................      108054  Acetic acid ethylene ether.
Vinylidene chloride................       75354  1,1-dichlorethylene........
                                                 1,1-dichloroethene.........
Xylene (mixed).....................     1330207  Dimethylbenzene............  m-....................      108383
                                                 Xylol......................  o-....................       95476
                                                                              p-....................      106423
Xylenol............................     1300716  Dimethylphenol,
                                                  hydroxydimethylbenzene.
Zinc acetate.......................      557346
Zinc ammonium chloride.............    14639975
                                       14639986
                                       52628258
Zinc borate........................     1332076
Zinc bromide.......................     7699458
Zinc carbonate.....................     3486359
Zinc chloride......................     7646857  Butter of zinc.............
Zinc cyanide.......................      557211
Zinc fluoride......................     7783495
Zinc formate.......................      557415
Zinc hydrosulfite..................     7779864
Zinc nitrate.......................     7779886
Zinc phenolsulfonate...............      127822  Zinc sulfocarbolate........
Zinc phosphide.....................     1314847
Zinc silicofluoride................    16871719  Zinc fluosilicate..........
Zinc sulfate.......................     7733020  White vitriol, zinc
                                                  vitriol, white copperas.
Zirconium nitrate..................    13746899
Zirconium potassium fluoride.......    16923958
Zirconium sulfate..................    14644612  Disulfatozirconic acid.....
Zirconium tetrachloride............    10026116  ...........................  ......................  ..........
----------------------------------------------------------------------------------------------------------------


        Table 116.4B--List of Hazardous Substances by CAS Number
------------------------------------------------------------------------
               CAS No.                            Common name
------------------------------------------------------------------------
50000...............................  Formaldehyde
50293...............................  DDT
51285...............................  2,4-Dinitrophenol
52686...............................  Trichlorfon

[[Page 143]]

 
56382...............................  Parathion
56724...............................  Coumaphos
57249...............................  Strychnine
57749...............................  Chlordane
58899...............................  Lindane
60004...............................  Ethylenediaminetetraacetic
                                       acid (EDTA)
60571...............................  Dieldrin
62533...............................  Aniline
62737...............................  Dichlorvos
63252...............................  Carbaryl
64186...............................  Formic acid
64197...............................  Acetic acid
65850...............................  Benzoic acid
67663...............................  Chloroform
71432...............................  Benzene
72208...............................  Endrin
72435...............................  Methoxychlor
72548...............................  TDE
74895...............................  Monomethylamine
74908...............................  Hydrogen cyanide
74931...............................  Methyl mercaptan
75047...............................  Monoethylamine
75070...............................  Acetaldehyde
75150...............................  Carbon disulfide
75207...............................  Calcium carbide
75445...............................  Phosgene
75503...............................  Trimethylamine
75649...............................  tert-Butylamine
75865...............................  Acetone cyanohydrin
75990...............................  2,2-Dichloropropionic acid
76448...............................  Heptachlor
78002...............................  Tetraethyl lead
78795...............................  Isoprene
78819...............................  iso-Butylamine
79094...............................  Propionic acid
79312...............................  iso-Butyric acid
79367...............................  Acetyl chloride
80626...............................  Methyl methacrylate
85007...............................  Diquat
86500...............................  Guthion
87865...............................  Pentachlorophenol
88755...............................  o-Nitrophenol
91203...............................  Naphthalene
91225...............................  Quinoline
93765...............................  2,4,5-T acid
93798...............................  2,4,5-T ester
94111...............................  2,4-D ester
94757...............................  2,4-D acid
94791...............................  2,4-D ester
94804...............................  2,4-D Butyl ester
95476...............................  o-Xylene
95487...............................  o-Cresol
98011...............................  Furfural
98884...............................  Benzoyl chloride
98953...............................  Nitrobenzene
99650...............................  m-Dinitrobenzene
100027..............................  p-Nitrophenol
100254..............................  p-Dinitrobenzene
100414..............................  Ethylbenzene
100425..............................  Styrene
100447..............................  Benzyl chloride
100470..............................  Benzonitrile
105464..............................  sec-Butyl acetate
106423..............................  p-Xylene
106445..............................  p-Cresol
107028..............................  Acrolein
107051..............................  Allyl chloride
107131..............................  Acrylonitrile
107153..............................  Ethylenediamine
107186..............................  Allyl alcohol
107493..............................  Tetraethyl pyrophosphate
107926..............................  n-Butyric acid
108054..............................  Vinyl acetate
108247..............................  Acetic anhydride
108316..............................  Maleic anhydride
108383..............................  m-Xylene
108394..............................  m-Cresol
108463..............................  Resorcinol
108883..............................  Toluene
108907..............................  Chlorobenzene
108952..............................  Phenol
109739..............................  n-Butylamine
109897..............................  Diethylamine
110167..............................  Maleic acid
110178..............................  Fumaric acid
110190..............................  iso-Butyl acetate
110827..............................  Cyclohexane
115297..............................  Endosulfan
115322..............................  Dicofol
117806..............................  Dichlone
121211..............................  Pyrethrin
121299..............................  Pyrethrin
121448..............................  Triethylamine
121755..............................  Malathion
123626..............................  Propionic anhydride
123864..............................  n-Butyl acetate
123922..............................  iso-Amyl acetate
124403..............................  Dimethylamine
124414..............................  Sodium methylate
127822..............................  Zinc phenolsulfonate
133062..............................  Captan
142712..............................  Cupric acetate
143339..............................  Sodium cyanide
151508..............................  Potassium cyanide
298000..............................  Methyl parathion
298044..............................  Disulfoton
300765..............................  Naled
301042..............................  Lead acetate
309002..............................  Aldrin
315184..............................  Mexacarbate
329715..............................  2,5-Dinitrophenol
330541..............................  Diuron
333415..............................  Diazinon
506774..............................  Cyanogen chloride
506876..............................  Ammonium carbonate
506967..............................  Acetyl bromide
513495..............................  sec-Butylamine
528290..............................  o-Dinitrobenzene
540885..............................  tert-Butyl acetate
541093..............................  Uranyl acetate
542621..............................  Barium cyanide
543908..............................  Cadmium acetate
544183..............................  Cobaltous formate
554847..............................  m-Nitrophenol
557211..............................  Zinc cyanide
557346..............................  Zinc acetate
557415..............................  Zinc formate
563122..............................  Ethion
573568..............................  2,6-Dinitrophenol
592018..............................  Calcium cyanide
592041..............................  Mercuric cyanide
592858..............................  Mercuric thiocyanate
592870..............................  Lead thiocyanate
625161..............................  tert-Amyl acetate
626380..............................  sec-Amyl acetate
628637..............................  n-Amyl acetate
631618..............................  Ammonium acetate
815827..............................  Cupric tartrate
1066304.............................  Chromic acetate
1066337.............................  Ammonium bicarbonate
1072351.............................  Lead stearate

[[Page 144]]

 
1111780.............................  Ammonium carbamate
1185575.............................  Ferric ammonium citrate
1194656.............................  Dichlobenil
1300716.............................  Xylenol
1303282.............................  Arsenic pentoxide
1303328.............................  Arsenic disulfide
1303339.............................  Arsenic trisulfide
1309644.............................  Antimony trioxide
1310583.............................  Potassium hydroxide
1310732.............................  Sodium hydroxide
1314621.............................  Vanadium pentoxide
1314803.............................  Phosphorus pentasulfide
1314847.............................  Zinc phosphide
1314870.............................  Lead sulfide
1319773.............................  Cresol (mixed)
1320189.............................  2,4-D ester
1327533.............................  Arsenic trioxide
1330207.............................  Xylene
1332076.............................  Zinc borate
1333831.............................  Sodium bifluoride
1336216.............................  Ammonium hydroxide
1336363.............................  Polychlorinated biphenyls
1338245.............................  Naphthenic acid
1341497.............................  Ammonium bifluoride
1762954.............................  Ammonium thiocyanate
1863634.............................  Ammonium benzoate
1918009.............................  Dicamba
1928387.............................  2,4-D esters
1928478.............................  2,4,5-T ester
1928616.............................  2,4-D ester
1929733.............................  2,4-D ester
2545597.............................  2,4,5-T ester
2764729.............................  Diquat
2921882.............................  Chlorpyrifos
2944674.............................  Ferric ammonium oxalate
2971382.............................  2,4-D ester
3012655.............................  Ammonium citrate, dibasic
3164292.............................  Ammonium tartrate
3251238.............................  Cupric nitrate
3486359.............................  Zinc carbonate
5893663.............................  Cupric oxalate
5972736.............................  Ammonium oxalate
6009707.............................  Ammonium oxalate
6369966.............................  2,4,5-T ester
7428480.............................  Lead stearate
7440235.............................  Sodium
7446084.............................  Selenium oxide
7446142.............................  Lead sulfate
7447394.............................  Cupric chloride
7558794.............................  Sodium phosphate, dibasic
7601549.............................  Sodium phosphate, tribasic
7631892.............................  Sodium arsenate
7631905.............................  Sodium bisulfite
7632000.............................  Sodium nitrite
7645252.............................  Lead arsenate
7646857.............................  Zinc chloride
7647010.............................  Hydrochloric acid
7647189.............................  Antimony pentachloride
7664382.............................  Phosphoric acid
7664393.............................  Hydrofluoric acid
7664417.............................  Ammonia
7664939.............................  Sulfuric acid
7681494.............................  Sodium fluoride
7681529.............................  Sodium hypochlorite
7697372.............................  Nitric acid
7699458.............................  Zinc bromide
7705080.............................  Ferric chloride
7718549.............................  Nickel chloride
7719122.............................  Phosphorus trichloride
7720787.............................  Ferrous sulfate
7722647.............................  Potassium permanganate
7723140.............................  Phosphorus
7733020.............................  Zinc sulfate
7758294.............................  Sodium phosphate, tribasic
7758943.............................  Ferrous chloride
7758954.............................  Lead chloride
7758987.............................  Cupric sulfate
7773060.............................  Ammonium sulfamate
7775113.............................  Sodium chromate
7778441.............................  Calcium arsenate
7778509.............................  Potassium bichromate
7778543.............................  Calcium hypochlorite
7779864.............................  Zinc hydrosulfite
7779886.............................  Zinc nitrate
7782505.............................  Chlorine
7782630.............................  Ferrous sulfate
7782823.............................  Sodium selenite
7782867.............................  Mercurous nitrate
7783359.............................  Mercuric sulfate
7783462.............................  Lead fluoride
7783495.............................  Zinc fluoride
7783508.............................  Ferric fluoride
7783564.............................  Antimony trifluoride
7784341.............................  Arsenic trichloride
7784409.............................  Lead arsenate
7784410.............................  Potassium arsenate
7784465.............................  Sodium arsenite
7785844.............................  Sodium phosphate, tribasic
7786347.............................  Mevinphos
7786814.............................  Nickel sulfate
7787475.............................  Beryllium chloride
7787497.............................  Beryllium fluoride
7787555.............................  Beryllium nitrate
7788989.............................  Ammonium chromate
7789006.............................  Potassium chromate
7789062.............................  Strontium chromate
7789095.............................  Ammonium bichromate
7789426.............................  Cadmium bromide
7789437.............................  Cobaltous bromide
7789619.............................  Antimony tribromide
7790945.............................  Chlorosulfonic acid
8001352.............................  Toxaphene
10022705............................  Sodium hypochlorite
10025873............................  Phosphorus oxychloride
10025919............................  Antimony trichloride
10026116............................  Zirconium tetrachloride
10028225............................  Ferric sulfate
10028247............................  Sodium phosphate, dibasic
10039324............................  Sodium phosphate, dibasic
10043013............................  Aluminum sulfate
10045893............................  Ferrous ammonium sulfate
10045940............................  Mercuric nitrate
10049055............................  Chromous chloride
10099748............................  Lead nitrate
10101538............................  Chromic sulfate
10101630............................  Lead iodide
10101890............................  Sodium phosphate, tribasic
10102064............................  Uranyl nitrate
10102188............................  Sodium selenite
10102440............................  Nitrogen dioxide
10102484............................  Lead arsenate
10108642............................  Cadmium chloride
10124502............................  Potassium arsenite
10124568............................  Sodium phosphate, tribasic
10140655............................  Sodium phosphate, dibasic
10192300............................  Ammonium bisulfite
10196040............................  Ammonium sulfite
10361894............................  Sodium phosphate, tribasic
10380297............................  Cupric sulfate, ammoniated
10415755............................  Mercurous nitrate
10421484............................  Ferric nitrate
10588019............................  Sodium bichromate

[[Page 145]]

 
11115745............................  Chromic acid
12002038............................  Cupric acetoarsenite
12054487............................  Nickel hydroxide
12125018............................  Ammonium fluoride
12125029............................  Ammonium chloride
12135761............................  Ammonium sulfide
12771083............................  Sulfur chloride
13597994............................  Beryllium nitrate
13746899............................  Zirconium nitrate
13765190............................  Calcium chromate
13814965............................  Lead fluoborate
13826830............................  Ammonium fluoborate
13952846............................  sec-Butylamine
14017415............................  Cobaltous sulfamate
14216752............................  Nickel nitrate
14258492............................  Ammonium oxalate
14307358............................  Lithium chromate
14307438............................  Ammonium tartrate
14639975............................  Zinc ammonium chloride
14639986............................  Zinc ammonium chloride
14644612............................  Zirconium sulfate
15699180............................  Nickel ammonium sulfate
16721805............................  Sodium hydrosulfide
16871719............................  Zinc silicofluoride
16919190............................  Ammonium silicofluoride
16923958............................  Zirconium potassium fluoride
25154545............................  Dinitrobenzene
25154556............................  Nitrophenol
25155300............................  Sodium dodecylbenzenesulfonate
25167822............................  Trichlorophenol
25168154............................  2,4,5-T ester
25168267............................  2,4-D ester
26264062............................  Calcium dodecylbenzenesulfonate
27176870............................  Dodecylbenzenesulfonic acid
27323417............................  Triethanolamine
                                       dodecylbenzenesulfonate
27774136............................  Vanadyl sulfate
28300745............................  Antimony potassium tartrate
30525894............................  Paraformaldehyde
36478769............................  Uranyl nitrate
37211055............................  Nickel chloride
42504461............................  Dodecylbenzenesulfonate
                                       isopropanolamine
52628258............................  Zinc ammonium chloride
52740166............................  Calcium arsenite
53467111............................  2,4-D ester
55488874............................  Ferric ammonium oxalate
61792072............................  2,4,5-T ester
------------------------------------------------------------------------


[43 FR 10474, Mar. 13, 1978; 43 FR 27533, June 26, 1978, as amended at 
44 FR 10268, Feb. 16, 1979; 44 FR 65400, Nov. 13, 1979; 44 FR 66602, 
Nov. 20, 1979; 54 FR 33482, Aug. 14, 1989]



PART 117_DETERMINATION OF REPORTABLE QUANTITIES FOR HAZARDOUS SUBSTANCES--

Table of Contents




                      Subpart A_General Provisions

Sec.
117.1 Definitions.
117.2 Abbreviations.
117.3 Determination of reportable quantities.

                         Subpart B_Applicability

117.11 General applicability.
117.12 Applicability to discharges from facilities with NPDES permits.
117.13 Applicability to discharges from publicly owned treatment works 
          and their users.
117.14 Demonstration projects.

         Subpart C_Notice of Discharge of a Reportable Quantity

117.21 Notice.
117.23 Liabilities for removal.

    Authority: Secs. 311 and 501(a), Federal Water Pollution Control Act 
(33 U.S.C. 1251 et seq.), (``the Act'') and Executive Order 11735, 
superseded by Executive Order 12777, 56 FR 54757.

    Source: 44 FR 50776, Aug. 29, 1979, unless otherwise noted.



                      Subpart A_General Provisions



Sec. 117.1  Definitions.

    As used in this part, all terms shall have the meanings stated in 40 
CFR part 116.
    (a) Reportable quantities means quantities that may be harmful as 
set forth in Sec. 117.3, the discharge of which is a violation of 
section 311(b)(3) and requires notice as set forth in Sec. 117.21.
    (b) Administrator means the Administrator of the Environmental 
Protection Agency (``EPA'').
    (c) Mobile source means any vehicle, rolling stock, or other means 
of transportation which contains or carries a reportable quantity of a 
hazardous substance.
    (d) Public record means the NPDES permit application or the NPDES 
permit itself and the materials comprising the administrative record for 
the permit decision specified in Sec. 124.18 of this chapter.
    (e) National Pretreatment Standard or Pretreatment Standard means 
any regulation containing pollutant discharge limits promulgated by the 
EPA in accordance with section 307 (b) and (c) of the Act, which applies 
to industrial users of a publicly owned treatment works. It further 
means any State or local pretreatment requirement applicable to a 
discharge and which is incorporated into a permit issued to a publicly 
owned treatment works under section 402 of the Act.

[[Page 146]]

    (f) Publicly Owned Treatment Works or POTW means a treatment works 
as defined by section 212 of the Act, which is owned by a State or 
municipality (as defined by section 502(4) of the Act). This definition 
includes any sewers that convey wastewater to such a treatment works, 
but does not include pipes, sewers or other conveyances not connected to 
a facility providing treatment. The term also means the municipality as 
defined in section 502(4) of the Act, which has jurisdiction over the 
indirect discharges to and the discharges from such a treatment works.
    (g) Remove or removal refers to removal of the oil or hazardous 
substances from the water and shoreline or the taking of such other 
actions as may be necessary to minimize or mitigate damage to the public 
health or welfare, including, but not limited to, fish, shellfish, 
wildlife, and public and private property, shorelines, and beaches.
    (h) Contiguous zone means the entire zone established by the United 
States under Article 24 of the Convention on the Territorial Sea and 
Contiguous Zone.
    (i) Navigable waters means ``waters of the United States, including 
the territorial seas.'' This term includes:
    (1) All waters which are currently used, were used in the past, or 
may be susceptible to use in interstate or foreign commerce, including 
all waters which are subject to the ebb and flow of the tide;
    (2) Interstate waters, including interstate wetlands;
    (3) All other waters such as intrastate lakes, rivers, streams, 
(including intermittent streams), mudflats, sandflats, and wetlands, the 
use, degradation or destruction of which would affect or could affect 
interstate or foreign commerce including any such waters:
    (i) Which are or could be used by interstate or foreign travelers 
for recreational or other purposes;
    (ii) From which fish or shellfish are or could be taken and sold in 
interstate or foreign commerce;
    (iii) Which are used or could be used for industrial purposes by 
industries in interstate commerce;
    (4) All impoundments of waters otherwise defined as navigable waters 
under this paragraph;
    (5) Tributaries of waters identified in paragraphs (i) (1) through 
(4) of this section, including adjacent wetlands; and
    (6) Wetlands adjacent to waters identified in paragraphs (i) (1) 
through (5) of this section (``Wetlands'' means those areas that are 
inundated or saturated by surface or ground water at a frequency and 
duration sufficient to support, and that under normal circumstances do 
support, a prevalence of vegetation typically adapted for life in 
saturated soil conditions. Wetlands generally included playa lakes, 
swamps, marshes, bogs, and similar areas such as sloughs, prairie 
potholes, wet meadows, prairie river overflows, mudflats, and natural 
ponds): Provided, That waste treatment systems (other than cooling ponds 
meeting the criteria of this paragraph) are not waters of the United 
States.


Navigable waters do not include prior converted cropland. 
Notwithstanding the determination of an area's status as prior converted 
cropland by any other federal agency, for the purposes of the Clean 
Water Act, the final authority regarding Clean Water Act jurisdiction 
remains with EPA.
    (j) Process waste water means any water which, during manufacturing 
or processing, comes into direct contact with or results from the 
production or use of any raw material, intermediate product, finished 
product, byproduct, or waste product.

[44 FR 50776, Aug. 29, 1979, as amended at 58 FR 45039, Aug. 25, 1993; 
65 FR 30904, May 15, 2000]



Sec. 117.2  Abbreviations.

    NPDES equals National Pollutant Discharge Elimination System. RQ 
equals reportable quantity.



Sec. 117.3  Determination of reportable quantities.

    Each substance in Table 117.3 that is listed in Table 302.4, 40 CFR 
part 302, is assigned the reportable quantity listed in Table 302.4 for 
that substance.

[[Page 147]]

 Table 117.3--Reportable Quantities of Hazardous Substances Designated 
             Pursuant to Section 311 of the Clean Water Act

    Note: The first number under the column headed ``RQ'' is the 
reportable quantity in pounds. The number in parentheses is the metric 
equivalent in kilograms. For convenience, the table contains a column 
headed ``Category'' which lists the code letters ``X'', ``A'', ``B'', 
``C'', and ``D'' associated with reportable quantities of 1, 10, 100, 
1000, and 5000 pounds, respectively.

  Table 117.3--Reportable Quantities of Hazardous Substances Designated
             Pursuant to Section 311 of the Clean Water Act
------------------------------------------------------------------------
                                                         RQ in pounds
            Material                   Category           (kilograms)
------------------------------------------------------------------------
Acetaldehyde....................  C.................  1,000 (454)
Acetic acid.....................  D.................  5,000 (2,270)
Acetic anhydride................  D.................  5,000 (2,270)
Acetone cyanohydrin.............  A.................  10 (4.54)
Acetyl bromide..................  D.................  5,000 (2,270)
Acetyl chloride.................  D.................  5,000 (2,270)
Acrolein........................  X.................  1 (0.454)
Acrylonitrile...................  B.................  100 (45.4)
Adipic acid.....................  D.................  5,000 (2,270)
Aldrin..........................  X.................  1 (0.454)
Allyl alcohol...................  B.................  100 (45.4)
Allyl chloride..................  C.................  1,000 (454)
Aluminum sulfate................  D.................  5,000 (2,270)
Ammonia.........................  B.................  100 (45.4)
Ammonium acetate................  D.................  5,000 (2,270)
Ammonium benzoate...............  D.................  5,000 (2,270)
Ammonium bicarbonate............  D.................  5,000 (2,270)
Ammonium bichromate.............  A.................  10 (4.54)
Ammonium bifluoride.............  B.................  100 (45.4)
Ammonium bisulfite..............  D.................  5,000 (2,270)
Ammonium carbamate..............  D.................  5,000 (2,270)
Ammonium carbonate..............  D.................  5,000 (2,270)
Ammonium chloride...............  D.................  5,000 (2,270)
Ammonium chromate...............  A.................  10 (4.54)
Ammonium citrate dibasic........  D.................  5,000 (2,270)
Ammonium fluoborate.............  D.................  5,000 (2,270)
Ammonium fluoride...............  B.................  100 (45.4)
Ammonium hydroxide..............  C.................  1,000 (454)
Ammonium oxalate................  D.................  5,000 (2,270)
Ammonium silicofluoride.........  C.................  1,000 (454)
Ammonium sulfamate..............  D.................  5,000 (2,270)
Ammonium sulfide................  B.................  100 (45.4)
Ammonium sulfite................  D.................  5,000 (2,270)
Ammonium tartrate...............  D.................  5,000 (2,270)
Ammonium thiocyanate............  D.................  5,000 (2,270)
Amyl acetate....................  D.................  5,000 (2,270)
Aniline.........................  D.................  5,000 (2,270)
Antimony pentachloride..........  C.................  1,000 (454)
Antimony potassium tartrate.....  B.................  100 (45.4)
Antimony tribromide.............  C.................  1,000 (454)
Antimony trichloride............  C.................  1,000 (454)
Antimony trifluoride............  C.................  1,000 (454)
Antimony trioxide...............  C.................  1,000 (454)
Arsenic disulfide...............  X.................  1 (0.454)
Arsenic pentoxide...............  X.................  1 (0.454)
Arsenic trichloride.............  X.................  1 (0.454)
Arsenic trioxide................  X.................  1 (0.454)
Arsenic trisulfide..............  X.................  1 (0.454)
Barium cyanide..................  A.................  10 (4.54)
Benzene.........................  A.................  10 (4.54)
Benzoic acid....................  D.................  5,000 (2,270)
Benzonitrile....................  D.................  5,000 (2,270)
Benzoyl chloride................  C.................  1,000 (454)
Benzyl chloride.................  B.................  100 (45.4)
Beryllium chloride..............  X.................  1 (0.454)
Beryllium fluoride..............  X.................  1 (0.454)
Beryllium nitrate...............  X.................  1 (0.454)
Butyl acetate...................  D.................  5,000 (2,270)
Butylamine......................  C.................  1,000 (454)
n-Butyl phthalate...............  A.................  10 (4.54)
Butyric acid....................  D.................  5,000 (2,270)
Cadmium acetate.................  A.................  10 (4.54)

[[Page 148]]

 
Cadmium bromide.................  A.................  10 (4.54)
Cadmium chloride................  A.................  10 (4.54)
Calcium arsenate................  X.................  1 (0.454)
Calcium arsenite................  X.................  1 (0.454)
Calcium carbide.................  A.................  10 (4.54)
Calcium chromate................  A.................  10 (4.54)
Calcium cyanide.................  A.................  10 (4.54)
Calcium dodecylbenzenesulfonate.  C.................  1,000 (454)
Calcium hypochlorite............  A.................  10 (4.54)
Captan..........................  A.................  10 (4.54)
Carbaryl........................  B.................  100 (45.4)
Carbofuran......................  A.................  10 (4.54)
Carbon disulfide................  B.................  100 (45.4)
Carbon tetrachloride............  A.................  10 (4.54)
Chlordane.......................  X.................  1 (0.454)
Chlorine........................  A.................  10 (4.54)
Chlorobenzene...................  B.................  100 (45.4)
Chloroform......................  A.................  10 (4.54)
Chlorosulfonic acid.............  C.................  1,000 (454)
Chlorpyrifos....................  X.................  1 (0.454)
Chromic acetate.................  C.................  1,000 (454)
Chromic acid....................  A.................  10 (4.54)
Chromic sulfate.................  C.................  1,000 (454)
Chromous chloride...............  C.................  1,000 (454)
Cobaltous bromide...............  C.................  1,000 (454)
Cobaltous formate...............  C.................  1,000 (454)
Cobaltous sulfamate.............  C.................  1,000 (454)
Coumaphos.......................  A.................  10 (4.54)
Cresol..........................  B.................  100 (45.4)
Crotonaldehyde..................  B.................  100 (45.4)
Cupric acetate..................  B.................  100 (45.4)
Cupric acetoarsenite............  X.................  1 (0.454)
Cupric chloride.................  A.................  10 (4.54)
Cupric nitrate..................  B.................  100 (45.4)
Cupric oxalate..................  B.................  100 (45.4)
Cupric sulfate..................  A.................  10 (4.54)
Cupric sulfate, ammoniated......  B.................  100 (45.4)
Cupric tartrate.................  B.................  100 (45.4)
Cyanogen chloride...............  A.................  10 (4.54)
Cyclohexane.....................  C.................  1,000 (454)
2,4-D Acid......................  B.................  100 (45.4)
2,4-D Esters....................  B.................  100 (45.4)
DDT.............................  X.................  1 (0.454)
Diazinon........................  X.................  1 (0.454)
Dicamba.........................  C.................  1,000 (454)
Dichlobenil.....................  B.................  100 (45.4)
Dichlone........................  X.................  1 (0.454)
Dichlorobenzene.................  B.................  100 (45.4)
Dichloropropane.................  C.................  1,000 (454)
Dichloropropene.................  B.................  100 (45.4)
Dichloropropene-Dichloropropane   B.................  100 (45.4)
 (mixture).
2,2-Dichloropropionic acid......  D.................  5,000 (2,270)
Dichlorvos......................  A.................  10 (4.54)
Dicofol.........................  A.................  10 (4.54)
Dieldrin........................  X.................  1 (0.454)
Diethylamine....................  B.................  100 (45.4)
Dimethylamine...................  C.................  1,000 (454)
Dinitrobenzene (mixed)..........  B.................  100 (45.4)
Dinitrophenol...................  A.................  10 (45.4)
Dinitrotoluene..................  A.................  10 (4.54)
Diquat..........................  C.................  1,000 (454)
Disulfoton......................  X.................  1 (0.454)
Diuron..........................  B.................  100 (45.4)
Dodecylbenzenesulfonic acid.....  C.................  1,000 (454)
Endosulfan......................  X.................  1 (0.454)
Endrin..........................  X.................  1 (0.454)
Epichlorohydrin.................  B.................  100 (45.4)
Ethion..........................  A.................  10 (4.54)
Ethylbenzene....................  C.................  1,000 (454)
Ethylenediamine.................  D.................  5,000 (2,270)
Ethylenediamine-tetraacetic acid  D.................  5,000 (2,270)
 (EDTA).

[[Page 149]]

 
Ethylene dibromide..............  X.................  1 (0.454)
Ethylene dichloride.............  B.................  100 (45.4)
Ferric ammonium citrate.........  C.................  1,000 (454)
Ferric ammonium oxalate.........  C.................  1,000 (454)
Ferric chloride.................  C.................  1,000 (454)
Ferric fluoride.................  B.................  100 (45.4)
Ferric nitrate..................  C.................  1,000 (454)
Ferric sulfate..................  C.................  1,000 (454)
Ferrous ammonium sulfate........  C.................  1,000 (454)
Ferrous chloride................  B.................  100 (45.4)
Ferrous sulfate.................  C.................  1,000 (454)
Formaldehyde....................  B.................  100 (45.4)
Formic acid.....................  D.................  5,000 (2,270)
Fumaric acid....................  D.................  5,000 (2,270)
Furfural........................  D.................  5,000 (2,270)
Guthion.........................  X.................  1 (0.454)
Heptachlor......................  X.................  1 (0.454)
Hexachlorocyclopentadiene.......  A.................  10 (4.54)
Hydrochloric acid...............  D.................  5,000 (2,270)
Hydrofluoric acid...............  B.................  100 (45.4)
Hydrogen cyanide................  A.................  10 (4.54)
Hydrogen sulfide................  B.................  100 (45.4)
Isoprene........................  B.................  100 (45.4)
Isopropanolamine                  C.................  1,000 (454)
 dodecylbenzenesulfonate.
Kepone..........................  X.................  1 (0.454)
Lead acetate....................  A.................  10 (4.54)
Lead arsenate...................  X.................  1 (0.454)
Lead chloride...................  A.................  10 (4.54)
Lead fluoborate.................  A.................  10 (4.54)
Lead fluoride...................  A.................  10 (4.54)
Lead iodide.....................  A.................  10 (4.54)
Lead nitrate....................  A.................  10 (4.54)
Lead stearate...................  A.................  10 (4.54)
Lead sulfate....................  A.................  10 (4.54)
Lead sulfide....................  A.................  10 (4.54)
Lead thiocyanate................  A.................  10 (4.54)
Lindane.........................  X.................  1 (0.454)
Lithium chromate................  A.................  10 (4.54)
Malathion.......................  B.................  100 (45.4)
Maleic acid.....................  D.................  5,000 (2,270)
Maleic anhydride................  D.................  5,000 (2,270)
Mercaptodimethur................  A.................  10 (4.54)
Mercuric cyanide................  X.................  1 (0.454)
Mercuric nitrate................  A.................  10 (4.54)
Mercuric sulfate................  A.................  10 (4.54)
Mercuric thiocyanate............  A.................  10 (4.54)
Mercurous nitrate...............  A.................  10 (4.54)
Methoxychlor....................  X.................  1 (0.454)
Methyl mercaptan................  B.................  100 (45.4)
Methyl methacrylate.............  C.................  1,000 (454)
Methyl parathion................  B.................  100 (45.4)
Mevinphos.......................  A.................  10 (4.54)
Mexacarbate.....................  C.................  1,000 (454)
Monoethylamine..................  B.................  100 (45.4)
Monomethylamine.................  B.................  100 (45.4)
Naled...........................  A.................  10 (4.54)
Naphthalene.....................  B.................  100 (45.4)
Naphthenic acid.................  B.................  100 (45.4)
Nickel ammonium sulfate.........  B.................  100 (45.4)
Nickel chloride.................  B.................  100 (45.4)
Nickel hydroxide................  A.................  10 (4.54)
Nickel nitrate..................  B.................  100 (45.4)
Nickel sulfate..................  B.................  100 (45.4)
Nitric acid.....................  C.................  1,000 (454)
Nitrobenzene....................  C.................  1,000 (454)
Nitrogen dioxide................  A.................  10 (4.54)
Nitrophenol (mixed).............  B.................  100 (45.4)
Nitrotoluene....................  C.................  1,000 (454)
Paraformaldehyde................  C.................  1,000 (454)
Parathion.......................  A.................  10 (4.54)
Pentachlorophenol...............  A.................  10 (4.54)

[[Page 150]]

 
Phenol..........................  C.................  1,000 (454)
Phosgene........................  A.................  10 (4.54)
Phosphoric acid.................  D.................  5,000 (2,270)
Phosphorus......................  X.................  1 (0.454)
Phosphorus oxychloride..........  C.................  1,000 (454)
Phosphorus pentasulfide.........  B.................  100 (45.4)
Phosphorus trichloride..........  C.................  1,000 (454)
Polychlorinated biphenyls.......  X.................  1 (0.454)
Potassium arsenate..............  X.................  1 (0.454)
Potassium arsenite..............  X.................  1 (0.454)
Potassium bichromate............  A.................  10 (4.54)
Potassium chromate..............  A.................  10 (4.54)
Potassium cyanide...............  A.................  10 (4.54)
Potassium hydroxide.............  C.................  1,000 (454)
Potassium permanganate..........  B.................  100 (45.4)
Propargite......................  A.................  10 (4.54)
Propionic acid..................  D.................  5,000 (2,270)
Propionic anhydride.............  D.................  5,000 (2,270)
Propylene oxide.................  B.................  100 (45.4)
Pyrethrins......................  X.................  1 (0.454)
Quinoline.......................  D.................  5,000 (2,270)
Resorcinol......................  D.................  5,000 (2,270)
Selenium oxide..................  A.................  10 (4.54)
Silver nitrate..................  X.................  1 (0.454)
Sodium..........................  A.................  10 (4.54)
Sodium arsenate.................  X.................  1 (0.454)
Sodium arsenite.................  X.................  1 (0.454)
Sodium bichromate...............  A.................  10 (4.54)
Sodium bifluoride...............  B.................  100 (45.4)
Sodium bisulfite................  D.................  5,000 (2,270)
Sodium chromate.................  A.................  10 (4.54)
Sodium cyanide..................  A.................  10 (4.54)
Sodium dodecylbenzenesulfonate..  C.................  1,000 (454)
Sodium fluoride.................  C.................  1,000 (454)
Sodium hydrosulfide.............  D.................  5,000 (2,270)
Sodium hydroxide................  C.................  1,000 (454)
Sodium hypochlorite.............  B.................  100 (45.4)
Sodium methylate................  C.................  1,000 (454)
Sodium nitrite..................  B.................  100 (45.4)
Sodium phosphate, dibasic.......  D.................  5,000 (2,270)
Sodium phosphate, tribasic......  D.................  5,000 (2,270)
Sodium selenite.................  B.................  100 (45.4)
Strontium chromate..............  A.................  10 (4.54)
Strychnine......................  A.................  10 (4.54)
Styrene.........................  C.................  1,000 (454)
Sulfuric acid...................  C.................  1,000 (454)
Sulfur monochloride.............  C.................  1,000 (454)
2,4,5-T acid....................  C.................  1,000 (454)
2,4,5-T amines..................  D.................  5,000 (2,270)
2,4,5-T esters..................  C.................  1,000 (454)
2,4,5-T salts...................  C.................  1,000 (454)
TDE.............................  X.................  1 (0.454)
2,4,5-TP acid...................  B.................  100 (45.4)
2,4,5-TP acid esters............  B.................  100 (45.4)
Tetraethyl lead.................  A.................  10 (4.54)
Tetraethyl pyrophosphate........  A.................  10 (4.54)
Thallium sulfate................  B.................  100 (45.4)
Toluene.........................  C.................  1,000 (454)
Toxaphene.......................  X.................  1 (0.454)
Trichlorfon.....................  B.................  100 (45.4)
Trichloroethylene...............  B.................  100 (45.4)
Trichlorophenol.................  A.................  10 (4.54)
Triethanolamine                   C.................  1,000 (454)
 dodecylbenzenesulfonate.
Triethylamine...................  D.................  5,000 (2,270)
Trimethylamine..................  B.................  100 (45.4)
Uranyl acetate..................  B.................  100 (45.4)
Uranyl nitrate..................  B.................  100 (45.4)
Vanadium pentoxide..............  C.................  1,000 (454)
Vanadyl sulfate.................  C.................  1,000 (454)
Vinyl acetate...................  D.................  5,000 (2,270)
Vinylidene chloride.............  B.................  100 (45.4)

[[Page 151]]

 
Xylene (mixed)..................  B.................  100 (45.4)
Xylenol.........................  C.................  1,000 (454)
Zinc acetate....................  C.................  1,000 (454)
Zinc ammonium chloride..........  C.................  1,000 (454)
Zinc borate.....................  C.................  1,000 (454)
Zinc bromide....................  C.................  1,000 (454)
Zinc carbonate..................  C.................  1,000 (454)
Zinc chloride...................  C.................  1,000 (454)
Zinc cyanide....................  A.................  10 (4.54)
Zinc fluoride...................  C.................  1,000 (454)
Zinc formate....................  C.................  1,000 (454)
Zinc hydrosulfite...............  C.................  1,000 (454)
Zinc nitrate....................  C.................  1,000 (454)
Zinc phenolsulfonate............  D.................  5,000 (2,270)
Zinc phosphide..................  B.................  100 (45.4)
Zinc silicofluoride.............  D.................  5,000 (2,270)
Zinc sulfate....................  C.................  1,000 (454)
Zirconium nitrate...............  D.................  5,000 (2,270)
Zirconium potassium fluoride....  C.................  1,000 (454)
Zirconium sulfate...............  D.................  5,000 (2,270)
Zirconium tetrachloride.........  D.................  5,000 (2,270)
------------------------------------------------------------------------


[50 FR 13513, Apr. 4, 1985, as amended at 51 FR 34547, Sept. 29, 1986; 
54 FR 33482, Aug. 14, 1989; 58 FR 35327, June 30, 1993; 60 FR 30937, 
June 12, 1995]



                         Subpart B_Applicability



Sec. 117.11  General applicability.

    This regulation sets forth a determination of the reportable 
quantity for each substance designated as hazardous in 40 CFR part 116. 
The regulation applies to quantities of designated substances equal to 
or greater than the reportable quantities, when discharged into or upon 
the navigable waters of the United States, adjoining shorelines, into or 
upon the contiguous zone, or beyond the contiguous zone as provided in 
section 311(b)(3) of the Act, except to the extent that the owner or 
operator can show such that discharges are made:
    (a) In compliance with a permit issued under the Marine Protection, 
Research and Sanctuaries Act of 1972 (33 U.S.C. 1401 et seq.);
    (b) In compliance with approved water treatment plant operations as 
specified by local or State regulations pertaining to safe drinking 
water;
    (c) Pursuant to the label directions for application of a pesticide 
product registered under section 3 or section 24 of the Federal 
Insecticide, Fungicide, and Rodenticide Act (FIFRA), as amended (7 
U.S.C. 136 et seq.), or pursuant to the terms and conditions of an 
experimental use permit issued under section 5 of FIFRA, or pursuant to 
an exemption granted under section 18 of FIFRA;
    (d) In compliance with the regulations issued under section 3004 or 
with permit conditions issued pursuant to section 3005 of the Resource 
Conservation and Recovery Act (90 Stat. 2795; 42 U.S.C. 6901);
    (e) In compliance with instructions of the On-Scene Coordinator 
pursuant to 40 CFR part 1510 (the National Oil and Hazardous Substances 
Pollution Plan) or 33 CFR 153.10(e) (Pollution by Oil and Hazardous 
Substances) or in accordance with applicable removal regulations as 
required by section 311(j)(1)(A);
    (f) In compliance with a permit issued under Sec. 165.7 of Title 14 
of the State of California Administrative Code;
    (g) From a properly functioning inert gas system when used to 
provide inert gas to the cargo tanks of a vessel;
    (h) From a permitted source and are excluded by Sec. 117.12 of this 
regulation;
    (i) To a POTW and are specifically excluded or reserved in Sec. 
117.13; or
    (j) In compliance with a permit issued under section 404(a) of the 
Clean Water Act or when the discharges are

[[Page 152]]

exempt from such requirements by section 404(f) or 404(r) of the Act (33 
U.S.C. 1344(a), (f), (r)).



Sec. 117.12  Applicability to discharges from facilities with NPDES permits.

    (a) This regulation does not apply to:
    (1) Discharges in compliance with a permit under section 402 of this 
Act;
    (2) Discharges resulting from circumstances identified, reviewed and 
made a part of the public record with respect to a permit issued or 
modified under section 402 of this Act, and subject to a condition in 
such permit;
    (3) Continuous or anticipated intermittent discharges from a point 
source, identified in a permit or permit application under section 402 
of this Act, which are caused by events occurring within the scope of 
the relevant operating or treatment systems; or
    (b) A discharge is ``in compliance with a permit issued under 
section 402 of this Act'' if the permit contains an effluent limitation 
specifically applicable to the substance discharged or an effluent 
limitation applicable to another waste parameter which has been 
specifically identified in the permit as intended to limit such 
substance, and the discharge is in compliance with the effluent 
limitation.
    (c) A discharge results ``from circumstances identified, reviewed 
and made a part of the public record with respect to a permit issued or 
modified under section 402 of the Act, and subject to a condition in 
such permit,'' whether or not the discharge is in compliance with the 
permit, where:
    (1) The permit application, the permit, or another portion of the 
public record contains documents that specifically identify:
    (i) The substance and the amount of the substance; and
    (ii) The origin and source of the substance; and
    (iii) The treatment which is to be provided for the discharge either 
by:
    (A) An on-site treatment system separate from any treatment system 
treating the permittee's normal discharge; or
    (B) A treatment system designed to treat the permittee's normal 
discharge and which is additionally capable of treating the identified 
amount of the identified substance; or
    (C) Any combination of the above; and
    (2) The permit contains a requirement that the substance and amounts 
of the substance, as identified in Sec. 117.12(c)(1)(i) and Sec. 
117.12(c)(1)(ii) be treated pursuant to Sec. 117.12(c)(1)(iii) in the 
event of an on-site release; and
    (3) The treatment to be provided is in place.
    (d) A discharge is a ``continuous or anticipated intermittent 
discharge from a point source, identified in a permit or permit 
application under section 402 of this Act, and caused by events 
occurring within the scope of the relevant operating or treatment 
systems,'' whether or not the discharge is in compliance with the 
permit, if:
    (1) The hazardous substance is discharged from a point source for 
which a valid permit exists or for which a permit application has been 
submitted; and
    (2) The discharge of the hazardous substance results from:
    (i) The contamination of noncontact cooling water or storm water, 
provided that such cooling water or storm water is not contaminated by 
an on-site spill of a hazardous substance; or
    (ii) A continuous or anticipated intermittent discharge of process 
waste water, and the discharge originates within the manufacturing or 
treatment systems; or
    (iii) An upset or failure of a treatment system or of a process 
producing a continuous or anticipated intermittent discharge where the 
upset or failure results from a control problem, an operator error, a 
system failure or malfunction, an equipment or system startup or 
shutdown, an equipment wash, or a production schedule change, provided 
that such upset or failure is not caused by an on-site spill of a 
hazardous substance.

[44 FR 50776, Aug. 29, 1979, as amended at 44 FR 58910, Oct. 12, 1979]



Sec. 117.13  Applicability to discharges from publicly owned treatment works 

and their users.

    (a) [Reserved]
    (b) These regulations apply to all discharges of reportable 
quantities to a

[[Page 153]]

POTW, where the discharge originates from a mobile source, except where 
such source has contracted with, or otherwise received written 
permission from the owners or operators of the POTW to discharge that 
quantity, and the mobile source can show that prior to accepting the 
substance from an industrial discharger, the substance had been treated 
to comply with any effluent limitation under sections 301, 302 or 306 or 
pretreatment standard under section 307 applicable to that facility.



Sec. 117.14  Demonstration projects.

    Notwithstanding any other provision of this part, the Administrator 
of the Environmental Protection Agency may, on a case-by-case basis, 
allow the discharge of designated hazardous substances in connection 
with research or demonstration projects relating to the prevention, 
control, or abatement of hazardous substance pollution. The 
Administrator will allow such a discharge only where he determines that 
the expected environmental benefit from such a discharge will outweigh 
the potential hazard associated with the discharge.



         Subpart C_Notice of Discharge of a Reportable Quantity



Sec. 117.21  Notice.

    Any person in charge of a vessel or an onshore or an offshore 
facility shall, as soon as he has knowledge of any discharge of a 
designated hazardous substance from such vessel or facility in 
quantities equal to or exceeding in any 24-hour period the reportable 
quantity determined by this part, immediately notify the appropriate 
agency of the United States Government of such discharge. Notice shall 
be given in accordance with such procedures as the Secretary of 
Transportation has set forth in 33 CFR 153.203. This provision applies 
to all discharges not specifically excluded or reserved by another 
section of these regulations.



Sec. 117.23  Liabilities for removal.

    In any case where a substance designated as hazardous in 40 CFR part 
116 is discharged from any vessel or onshore or offshore facility in a 
quantity equal to or exceeding the reportable quantity determined by 
this part, the owner, operator or person in charge will be liable, 
pursuant to section 311 (f) and (g) of the Act, to the United States 
Government for the actual costs incurred in the removal of such 
substance, subject only to the defenses and monetary limitations 
enumerated in section 311 (f) and (g) of the Act.

The Administrator may act to mitigate the damage to the public health or 
welfare caused by a discharge and the cost of such mitigation shall be 
considered a cost incurred under section 311(c) for the removal of that 
substance by the United States Government.



PART 121_STATE CERTIFICATION OF ACTIVITIES REQUIRING A FEDERAL LICENSE OR 

PERMIT--Table of Contents




                            Subpart A_General

Sec.
121.1 Definitions.
121.2 Contents of certification.
121.3 Contents of application.

            Subpart B_Determination of Effect on Other States

121.11 Copies of documents.
121.12 Supplemental information.
121.13 Review by Regional Administrator and notification.
121.14 Forwarding to affected State.
121.15 Hearings on objection of affected State.
121.16 Waiver.

              Subpart C_Certification by the Administrator

121.21 When Administrator certifies.
121.22 Applications.
121.23 Notice and hearing.
121.24 Certification.
121.25 Adoption of new water quality standards.
121.26 Inspection of facility or activity before operation.
121.27 Notification to licensing or permitting agency.
121.28 Termination of suspension.

                         Subpart D_Consultations

121.30 Review and advice.

    Authority: Sec. 21 (b) and (c), 84 Stat. 91 (33 U.S.C. 1171(b) 
(1970)); Reorganization Plan No. 3 of 1970.

    Source: 36 FR 22487, Nov. 25, 1971, unless otherwise noted. 
Redesignated at 37 FR 21441,

[[Page 154]]

Oct. 11, 1972, and further redesignated at 44 FR 32899, June 7, 1979.



                            Subpart A_General



Sec. 121.1  Definitions.

    As used in this part, the following terms shall have the meanings 
indicated below:
    (a) License or permit means any license or permit granted by an 
agency of the Federal Government to conduct any activity which may 
result in any discharge into the navigable waters of the United States.
    (b) Licensing or permitting agency means any agency of the Federal 
Government to which application is made for a license or permit.
    (c) Administrator means the Administrator, Environmental Protection 
Agency.
    (d) Regional Administrator means the Regional designee appointed by 
the Administrator, Environmental Protection Agency.
    (e) Certifying agency means the person or agency designated by the 
Governor of a State, by statute, or by other governmental act, to 
certify compliance with applicable water quality standards. If an 
interstate agency has sole authority to so certify for the area within 
its jurisdiction, such interstate agency shall be the certifying agency. 
Where a State agency and an interstate agency have concurrent authority 
to certify, the State agency shall be the certifying agency. Where water 
quality standards have been promulgated by the Administrator pursuant to 
section 10(c)(2) of the Act, or where no State or interstate agency has 
authority to certify, the Administrator shall be the certifying agency.
    (f) Act means the Federal Water Pollution Control Act, 33 U.S.C. 
1151 et seq.
    (g) Water quality standards means standards established pursuant to 
section 10(c) of the Act, and State-adopted water quality standards for 
navigable waters which are not interstate waters.



Sec. 121.2  Contents of certification.

    (a) A certification made by a certifying agency shall include the 
following:
    (1) The name and address of the applicant;
    (2) A statement that the certifying agency has either (i) examined 
the application made by the applicant to the licensing or permitting 
agency (specifically identifying the number or code affixed to such 
application) and bases its certification upon an evaluation of the 
information contained in such application which is relevant to water 
quality considerations, or (ii) examined other information furnished by 
the applicant sufficient to permit the certifying agency to make the 
statement described in paragraph (a)(3) of this section;
    (3) A statement that there is a reasonable assurance that the 
activity will be conducted in a manner which will not violate applicable 
water quality standards;
    (4) A statement of any conditions which the certifying agency deems 
necessary or desirable with respect to the discharge of the activity; 
and
    (5) Such other information as the certifying agency may determine to 
be appropriate.
    (b) The certifying agency may modify the certification in such 
manner as may be agreed upon by the certifying agency, the licensing or 
permitting agency, and the Regional Administrator.



Sec. 121.3  Contents of application.

    A licensing or permitting agency shall require an applicant for a 
license or permit to include in the form of application such information 
relating to water quality considerations as may be agreed upon by the 
licensing or permitting agency and the Administrator.



            Subpart B_Determination of Effect on Other States



Sec. 121.11  Copies of documents.

    (a) Upon receipt from an applicant of an application for a license 
or permit without an accompanying certification, the licensing or 
permitting agency shall either: (1) Forward one copy of the application 
to the appropriate certifying agency and two copies to the Regional 
Administrator, or (2) forward three copies of the application to the 
Regional Administrator, pursuant to an agreement between the licensing 
or permitting agency and the

[[Page 155]]

Administrator that the Regional Administrator will transmit a copy of 
the application to the appropriate certifying agency. Upon subsequent 
receipt from an applicant of a certification, the licensing or 
permitting agency shall forward a copy of such certification to the 
Regional Administrator, unless such certification shall have been made 
by the Regional Administrator pursuant to Sec. 121.24.
    (b) Upon receipt from an applicant of an application for a license 
or permit with an accompanying certification, the licensing or 
permitting agency shall forward two copies of the application and 
certification to the Regional Administrator.
    (c) Only those portions of the application which relate to water 
quality considerations shall be forwarded to the Regional Administrator.



Sec. 121.12  Supplemental information.

    If the documents forwarded to the Regional Administrator by the 
licensing or permitting agency pursuant to Sec. 121.11 do not contain 
sufficient information for the Regional Administrator to make the 
determination provided for in Sec. 121.13, the Regional Administrator 
may request, and the licensing or permitting agency shall obtain from 
the applicant and forward to the Regional Administrator, any 
supplemental information as may be required to make such determination.



Sec. 121.13  Review by Regional Administrator and notification.

    The Regional Administrator shall review the application, 
certification, and any supplemental information provided in accordance 
with Sec. Sec. 121.11 and 121.12 and if the Regional Administrator 
determines there is reason to believe that a discharge may affect the 
quality of the waters of any State or States other than the State in 
which the discharge originates, the Regional Administrator shall, no 
later than 30 days of the date of receipt of the application and 
certification from the licensing or permitting agency as provided in 
Sec. 121.11, so notify each affected State, the licensing or permitting 
agency, and the applicant.



Sec. 121.14  Forwarding to affected State.

    The Regional Administrator shall forward to each affected State a 
copy of the material provided in accordance with Sec. 121.11.



Sec. 121.15  Hearings on objection of affected State.

    When a licensing or permitting agency holds a public hearing on the 
objection of an affected State, notice of such objection, including the 
grounds for such objection, shall be forwarded to the Regional 
Administrator by the licensing or permitting agency no later than 30 
days prior to such hearing. The Regional Administrator shall at such 
hearing submit his evaluation with respect to such objection and his 
recommendations as to whether and under what conditions the license or 
permit should be issued.



Sec. 121.16  Waiver.

    The certification requirement with respect to an application for a 
license or permit shall be waived upon:
    (a) Written notification from the State or interstate agency 
concerned that it expressly waives its authority to act on a request for 
certification; or
    (b) Written notification from the licensing or permitting agency to 
the Regional Administrator of the failure of the State or interstate 
agency concerned to act on such request for certification within a 
reasonable period of time after receipt of such request, as determined 
by the licensing or permitting agency (which period shall generally be 
considered to be 6 months, but in any event shall not exceed 1 year).

In the event of a waiver hereunder, the Regional Administrator shall 
consider such waiver as a substitute for a certification, and as 
appropriate, shall conduct the review, provide the notices, and perform 
the other functions identified in Sec. Sec. 121.13, 121.14, and 121.15. 
The notices required by Sec. 121.13 shall be provided not later than 30 
days after the date of receipt by the Regional Administrator of either 
notification referred to herein.

[[Page 156]]



              Subpart C_Certification by the Administrator



Sec. 121.21  When Administrator certifies.

    Certification by the Administrator that the discharge resulting from 
an activity requiring a license or permit will not violate applicable 
water quality standards will be required where:
    (a) Standards have been promulgated, in whole or in part, by the 
Administrator pursuant to section 10(c)(2) of the Act: Provided, 
however, That the Administrator will certify compliance only with 
respect to those water quality standards promulgated by him; or
    (b) Water quality standards have been established, but no State or 
interstate agency has authority to give such a certification.



Sec. 121.22  Applications.

    An applicant for certification from the Administrator shall submit 
to the Regional Administrator a complete description of the discharge 
involved in the activity for which certification is sought, with a 
request for certification signed by the applicant. Such description 
shall include the following:
    (a) The name and address of the applicant;
    (b) A description of the facility or activity, and of any discharge 
into navigable waters which may result from the conduct of any activity 
including, but not limited to, the construction or operation of the 
facility, including the biological, chemical, thermal, and other 
characteristics of the discharge, and the location or locations at which 
such discharge may enter navigable waters;
    (c) A description of the function and operation of equipment or 
facilities to treat wastes or other effluents which may be discharged, 
including specification of the degree of treatment expected to be 
attained;
    (d) The date or dates on which the activity will begin and end, if 
known, and the date or dates on which the discharge will take place;
    (e) A description of the methods and means being used or proposed to 
monitor the quality and characteristics of the discharge and the 
operation of equipment or facilities employed in the treatment or 
control of wastes or other effluents.



Sec. 121.23  Notice and hearing.

    The Regional Administrator will provide public notice of each 
request for certification by mailing to State, County, and municipal 
authorities, heads of State agencies responsible for water quality 
improvement, and other parties known to be interested in the matter, 
including adjacent property owners and conservation organizations, or 
may provide such notice in a newspaper of general circulation in the 
area in which the activity is proposed to be conducted if the Regional 
Administrator deems mailed notice to be impracticable. Interested 
parties shall be provided an opportunity to comment on such request in 
such manner as the Regional Administrator deems appropriate. All 
interested and affected parties will be given reasonable opportunity to 
present evidence and testimony at a public hearing on the question 
whether to grant or deny certification if the Regional Administrator 
determines that such a hearing is necessary or appropriate.



Sec. 121.24  Certification.

    If, after considering the complete description, the record of a 
hearing, if any, held pursuant to Sec. 121.23, and such other 
information and data as the Regional Administrator deems relevant, the 
Regional Administrator determines that there is reasonable assurance 
that the proposed activity will not result in a violation of applicable 
water quality standards, he shall so certify. If the Regional 
Administrator determines that no water quality standards are applicable 
to the waters which might be affected by the proposed activity, he shall 
so notify the applicant and the licensing or permitting agency in 
writing and shall provide the licensing or permitting agency with 
advice, suggestions, and recommendations with respect to conditions to 
be incorporated in any license or permit to achieve compliance with the 
purpose of this Act. In such case, no certification shall be required.

[[Page 157]]



Sec. 121.25  Adoption of new water quality standards.

    (a) In any case where:
    (1) A license or permit was issued without certification due to the 
absence of applicable water quality standards; and
    (2) Water quality standards applicable to the waters into which the 
licensed or permitted activity may discharge are subsequently 
established; and
    (3) The Administrator is the certifying agency because:
    (i) No State or interstate agency has authority to certify; or
    (ii) Such new standards were promulgated by the Administrator 
pursuant to section 10(c)(2) of the Act; and
    (4) The Regional Administrator determines that such uncertified 
activity is violating water quality standards;

Then the Regional Administrator shall notify the licensee or permittee 
of such violation, including his recommendations as to actions necessary 
for compliance. If the licensee or permittee fails within 6 months of 
the date of such notice to take action which in the opinion of the 
Regional Administrator will result in compliance with applicable water 
quality standards, the Regional Administrator shall notify the licensing 
or permitting agency that the licensee or permittee has failed, after 
reasonable notice, to comply with such standards and that suspension of 
the applicable license or permit is required by section 21(b)(9)(B) of 
the Act.
    (b) Where a license or permit is suspended pursuant to paragraph (a) 
of this section, and where the licensee or permittee subsequently takes 
action which in the Regional Administrator's opinion will result in 
compliance with applicable water quality standards, the Regional 
Administrator shall then notify the licensing or permitting agency that 
there is reasonable assurance that the licensed or permitted activity 
will comply with applicable water quality standards.



Sec. 121.26  Inspection of facility or activity before operation.

    Where any facility or activity has received certification pursuant 
to Sec. 121.24 in connection with the issuance of a license or permit 
for construction, and where such facility or activity is not required to 
obtain an operating license or permit, the Regional Administrator or his 
representative, prior to the initial operation of such facility or 
activity, shall be afforded the opportunity to inspect such facility or 
activity for the purpose of determining if the manner in which such 
facility or activity will be operated or conducted will violate 
applicable water quality standards.



Sec. 121.27  Notification to licensing or permitting agency.

    If the Regional Administrator, after an inspection pursuant to Sec. 
121.26, determines that operation of the proposed facility or activity 
will violate applicable water quality standards, he shall so notify the 
applicant and the licensing or permitting agency, including his 
recommendations as to remedial measures necessary to bring the operation 
of the proposed facility into compliance with such standards.



Sec. 121.28  Termination of suspension.

    Where a licensing or permitting agency, following a public hearing, 
suspends a license or permit after receiving the Regional 
Administrator's notice and recommendation pursuant to Sec. 121.27, the 
applicant may submit evidence to the Regional Administrator that the 
facility or activity or the operation or conduct thereof has been 
modified so as not to violate water quality standards. If the Regional 
Administrator determines that water quality standards will not be 
violated, he shall so notify the licensing or permitting agency.



                         Subpart D_Consultations



Sec. 121.30  Review and advice.

    The Regional Administrator may, and upon request shall, provide 
licensing and permitting agencies with determinations, definitions and 
interpretations with respect to the meaning and content of water quality 
standards where they have been federally approved under section 10 of 
the Act, and findings with respect to the application of all applicable 
water quality standards in particular cases and in specific 
circumstances relative to an activity

[[Page 158]]

for which a license or permit is sought. The Regional Administrator may, 
and upon request shall, also advise licensing and permitting agencies as 
to the status of compliance by dischargers with the conditions and 
requirements of applicable water quality standards. In cases where an 
activity for which a license or permit is sought will affect water 
quality, but for which there are no applicable water quality standards, 
the Regional Administrator may advise licensing or permitting agencies 
with respect to conditions of such license or permit to achieve 
compliance with the purpose of the Act.



PART 122_EPA ADMINISTERED PERMIT PROGRAMS: THE NATIONAL POLLUTANT DISCHARGE 

ELIMINATION SYSTEM--Table of Contents




         Subpart A_Definitions and General Program Requirements

Sec.
122.1 Purpose and scope.
122.2 Definitions.
122.3 Exclusions.
122.4 Prohibitions (applicable to State NPDES Programs, see Sec. 
          123.25).
122.5 Effect of a permit.
122.6 Continuation of expiring permits.
122.7 Confidentiality of information.

   Subpart B_Permit Application and Special NPDES Program Requirements

122.21 Application for a permit (applicable to State programs, see Sec. 
          123.25).
122.22 Signatories to permit applications and reports (applicable to 
          State programs, see Sec. 123.25).
122.23 Concentrated animal feeding operations (applicable to State NPDES 
          programs, see Sec. 123.25).
122.24 Concentrated aquatic animal production facilities (applicable to 
          State NPDES programs, see Sec. 123.25).
122.25 Aquaculture projects (applicable to State NPDES programs, see 
          Sec. 123.25).
122.26 Storm water discharges (applicable to State NPDES programs, see 
          Sec. 123.25).
122.27 Silvicultural activities (applicable to State NPDES programs, see 
          Sec. 123.25).
122.28 General permits (applicable to State NPDES programs, see Sec. 
          123.25).
122.29 New sources and new dischargers.
122.30 What are the objectives of the storm water regulations for small 
          MS4s?
122.31 As a Tribe, what is my role under the NPDES storm water program?
122.32 As an operator of a small MS4, am I regulated under the NPDES 
          storm water program?
122.33 If I am an operator of a regulated small MS4, how do I apply for 
          an NPDES permit and when do I have to apply?
122.34 As an operator of a regulated small MS4, what will my NPDES MS4 
          storm water permit require?
122.35 As an operator of a regulated small MS4, may I share the 
          responsibility to implement the minimum control measures with 
          other entities?
122.36 As an operator of a regulated small MS4, what happens if I don't 
          comply with the application or permit requirements in 
          Sec. Sec. 122.33 through 122.35?
122.37 Will the small MS4 storm water program regulations at Sec. Sec. 
          122.32 through 122.36 and Sec. 123.35 of this chapter change 
          in the future?

                       Subpart C_Permit Conditions

122.41 Conditions applicable to all permits (applicable to State 
          programs, see Sec. 123.25).
122.42 Additional conditions applicable to specified categories of NPDES 
          permits (applicable to State NPDES programs, see Sec. 
          123.25).
122.43 Establishing permit conditions (applicable to State programs, see 
          Sec. 123.25).
122.44 Establishing limitations, standards and other permit conditions 
          (applicable to State NPDES programs, see Sec. 123.25).
122.45 Calculating NPDES permit conditions (applicable to State NPDES 
          programs, see Sec. 123.25).
122.46 Duration of permits (applicable to State programs, see Sec. 
          123.25).
122.47 Schedules of compliance.
122.48 Requirements for recording and reporting of monitoring results 
          (applicable to State programs, see Sec. 123.25).
122.49 Considerations under Federal law.
122.50 Disposal of pollutants into wells, into publicly owned treatment 
          works or by land application (applicable to State NPDES 
          programs, see Sec. 123.25).

    Subpart D_Transfer, Modification, Revocation and Reissuance, and 
                         Termination of Permits

122.61 Transfer of permits (applicable to State programs, see Sec. 
          123.25).
122.62 Modification or revocation and reissuance of permits (applicable 
          to State programs, see Sec. 123.25).
122.63 Minor modifications of permits.
122.64 Termination of permits (applicable to State programs, see Sec. 
          123.25).

Appendix A to Part 122--NPDES Primary Industry Categories
Appendix B to Part 122 [Reserved]

[[Page 159]]

Appendix C to Part 122--Criteria for Determining a Concentrated Aquatic 
          Animal Production Facility (Sec. 122.24)
Appendix D to Part 122--NPDES Permit Application Testing Requirements 
          (Sec. 122.21)
Appendix E to Part 122--Rainfall Zones of the United States
Appendix F to Part 122--Incorporated Places With Populations Greater 
          Than 250,000 According to the 1990 Decennial Census by the 
          Bureau of the Census
Appendix G to Part 122--Incorporated Places With Populations Greater 
          Than 100,000 But Less Than 250,000 According to the 1990 
          Decennial Census by the Bureau of the Census
Appendix H to Part 122--Counties with Unincorporated Urbanized Areas 
          With a Population of 250,000 or More According to the 1990 
          Decennial Census by the Bureau of the Census
Appendix I to Part 122--Counties With Unincorporated Urbanized Areas 
          Greater Than 100,000, But Less Than 250,000 According to the 
          1990 Decennial Census by the Bureau of the Census
Appendix J to Part 122--NPDES Permit Testing Requirements for Publicly 
          Owned Treatment Works (Sec. 122.21(j))

    Authority: The Clean Water Act, 33 U.S.C. 1251 et seq.

    Source: 48 FR 14153, Apr. 1, 1983, unless otherwise noted.



         Subpart A_Definitions and General Program Requirements



Sec. 122.1  Purpose and scope.

    (a) Coverage. (1) The regulatory provisions contained in this part 
and parts 123, and 124 of this chapter implement the National Pollutant 
Discharge Elimination System (NPDES) Program under sections 318, 402, 
and 405 of the Clean Water Act (CWA) (Public Law 92-500, as amended, 33 
U.S.C. 1251 et seq.)
    (2) These provisions cover basic EPA permitting requirements (this 
part 122), what a State must do to obtain approval to operate its 
program in lieu of a Federal program and minimum requirements for 
administering the approved State program (part 123 of this chapter), and 
procedures for EPA processing of permit applications and appeals (part 
124 of this chapter).
    (3) These provisions also establish the requirements for public 
participation in EPA and State permit issuance and enforcement and 
related variance proceedings, and in the approval of State NPDES 
programs. These provisions carry out the purposes of the public 
participation requirements of part 25 of this chapter, and supersede the 
requirements of that part as they apply to actions covered under this 
part and parts 123, and 124 of this chapter.
    (4) Regulatory provisions in Parts 125, 129, 133, 136 of this 
chapter and 40 CFR subchapter N and subchapter O of this chapter also 
implement the NPDES permit program.
    (5) Certain requirements set forth in parts 122 and 124 of this 
chapter are made applicable to approved State programs by reference in 
part 123 of this chapter. These references are set forth in Sec. 123.25 
of this chapter. If a section or paragraph of part 122 or 124 of this 
chapter is applicable to States, through reference in Sec. 123.25 of 
this chapter, that fact is signaled by the following words at the end of 
the section or paragraph heading: (Applicable to State programs, see 
Sec. 123.25 of this chapter). If these words are absent, the section 
(or paragraph) applies only to EPA administered permits. Nothing in this 
part and parts 123, or 124 of this chapter precludes more stringent 
State regulation of any activity covered by the regulations in 40 CFR 
parts 122, 123, and 124, whether or not under an approved State program.
    (b) Scope of the NPDES permit requirement. (1) The NPDES program 
requires permits for the discharge of ``pollutants'' from any ``point 
source'' into ``waters of the United States.'' The terms ``pollutant'', 
``point source'' and ``waters of the United States'' are defined at 
Sec. 122.2.
    (2) The permit program established under this part also applies to 
owners or operators of any treatment works treating domestic sewage, 
whether or not the treatment works is otherwise required to obtain an 
NPDES permit, unless all requirements implementing section 405(d) of the 
CWA applicable to the treatment works treating domestic sewage are 
included in a permit issued under the appropriate provisions of subtitle 
C of the Solid Waste Disposal Act, Part C of the Safe Drinking Water 
Act, the Marine Protection, Research, and Sanctuaries Act of 1972, or 
the Clean Air Act, or under State permit

[[Page 160]]

programs approved by the Administrator as adequate to assure compliance 
with section 405 of the CWA.
    (3) The Regional Administrator may designate any person subject to 
the standards for sewage sludge use and disposal as a ``treatment works 
treating domestic sewage'' as defined in Sec. 122.2, where the Regional 
Administrator finds that a permit is necessary to protect public health 
and the environment from the adverse effects of sewage sludge or to 
ensure compliance with the technical standards for sludge use and 
disposal developed under CWA section 405(d). Any person designated as a 
``treatment works treating domestic sewage'' shall submit an application 
for a permit under Sec. 122.21 within 180 days of being notified by the 
Regional Administrator that a permit is required. The Regional 
Administrator's decision to designate a person as a ``treatment works 
treating domestic sewage'' under this paragraph shall be stated in the 
fact sheet or statement of basis for the permit.

    [Note to Sec. 122.1: Information concerning the NPDES program and 
its regulations can be obtained by contacting the Water Permits 
Division(4203), Office of Wastewater Management, U.S.E.P.A., Ariel Rios 
Building, 1200 Pennsylvania Avenue, NW., Washington, DC 20460 at (202) 
260-9545 and by visiting the homepage at http://www.epa.gov/owm/]

[65 FR 30904, May 15, 2000, as amended at 72 FR 11211, Mar. 12, 2007]



Sec. 122.2  Definitions.

    The following definitions apply to parts 122, 123, and 124. Terms 
not defined in this section have the meaning given by CWA. When a 
defined term appears in a definition, the defined term is sometimes 
placed in quotation marks as an aid to readers.
    Administrator means the Administrator of the United States 
Environmental Protection Agency, or an authorized representative.
    Animal feeding operation is defined at Sec. 122.23.
    Applicable standards and limitations means all State, interstate, 
and federal standards and limitations to which a ``discharge,'' a 
``sewage sludge use or disposal practice,'' or a related activity is 
subject under the CWA, including ``effluent limitations,'' water quality 
standards, standards of performance, toxic effluent standards or 
prohibitions, ``best management practices,'' pretreatment standards, and 
``standards for sewage sludge use or disposal'' under sections 301, 302, 
303, 304, 306, 307, 308, 403 and 405 of CWA.
    Application means the EPA standard national forms for applying for a 
permit, including any additions, revisions or modifications to the 
forms; or forms approved by EPA for use in ``approved States,'' 
including any approved modifications or revisions.
    Approved program or approved State means a State or interstate 
program which has been approved or authorized by EPA under part 123.
    Aquaculture project is defined at Sec. 122.25.
    Average monthly discharge limitation means the highest allowable 
average of ``daily discharges'' over a calendar month, calculated as the 
sum of all ``daily discharges'' measured during a calendar month divided 
by the number of ``daily discharges'' measured during that month.
    Average weekly discharge limitation means the highest allowable 
average of ``daily discharges'' over a calendar week, calculated as the 
sum of all ``daily discharges'' measured during a calendar week divided 
by the number of ``daily discharges'' measured during that week.
    Best management practices (``BMPs'') means schedules of activities, 
prohibitions of practices, maintenance procedures, and other management 
practices to prevent or reduce the pollution of ``waters of the United 
States.'' BMPs also include treatment requirements, operating 
procedures, and practices to control plant site runoff, spillage or 
leaks, sludge or waste disposal, or drainage from raw material storage.
    BMPs means ``best management practices.''
    Class I sludge management facility means any POTW identified under 
40 CFR 403.8(a) as being required to have an approved pretreatment 
program (including such POTWs located in a State that has elected to 
assume local program responsibilities pursuant to 40 CFR 403.10(e)) and 
any other treatment

[[Page 161]]

works treating domestic sewage classified as a Class I sludge management 
facility by the Regional Administrator, or, in the case of approved 
State programs, the Regional Administrator in conjunction with the State 
Director, because of the potential for its sludge use or disposal 
practices to adversely affect public health and the environment.
    Bypass is defined at Sec. 122.41(m).
    Concentrated animal feeding operation is defined at Sec. 122.23.
    Concentrated aquatic animal feeding operation is defined at Sec. 
122.24.
    Contiguous zone means the entire zone established by the United 
States under Article 24 of the Convention on the Territorial Sea and the 
Contiguous Zone.
    Continuous discharge means a ``discharge'' which occurs without 
interruption throughout the operating hours of the facility, except for 
infrequent shutdowns for maintenance, process changes, or other similar 
activities.
    CWA means the Clean Water Act (formerly referred to as the Federal 
Water Pollution Control Act or Federal Water Pollution Control Act 
Amendments of 1972) Public Law 92-500, as amended by Public Law 95-217, 
Public Law 95-576, Public Law 96-483 and Public Law 97-117, 33 U.S.C. 
1251 et seq.
    CWA and regulations means the Clean Water Act (CWA) and applicable 
regulations promulgated thereunder. In the case of an approved State 
program, it includes State program requirements.
    Daily discharge means the ``discharge of a pollutant'' measured 
during a calendar day or any 24-hour period that reasonably represents 
the calendar day for purposes of sampling. For pollutants with 
limitations expressed in units of mass, the ``daily discharge'' is 
calculated as the total mass of the pollutant discharged over the day. 
For pollutants with limitations expressed in other units of measurement, 
the ``daily discharge'' is calculated as the average measurement of the 
pollutant over the day.
    Direct discharge means the ``discharge of a pollutant.''
    Director means the Regional Administrator or the State Director, as 
the context requires, or an authorized representative. When there is no 
``approved State program,'' and there is an EPA administered program, 
``Director'' means the Regional Administrator. When there is an approved 
State program, ``Director'' normally means the State Director. In some 
circumstances, however, EPA retains the authority to take certain 
actions even when there is an approved State program. (For example, when 
EPA has issued an NPDES permit prior to the approval of a State program, 
EPA may retain jurisdiction over that permit after program approval, see 
Sec. 123.1.) In such cases, the term ``Director'' means the Regional 
Administrator and not the State Director.
    Discharge when used without qualification means the ``discharge of a 
pollutant.''
    Discharge of a pollutant means:
    (a) Any addition of any ``pollutant'' or combination of pollutants 
to ``waters of the United States'' from any ``point source,'' or
    (b) Any addition of any pollutant or combination of pollutants to 
the waters of the ``contiguous zone'' or the ocean from any point source 
other than a vessel or other floating craft which is being used as a 
means of transportation.

This definition includes additions of pollutants into waters of the 
United States from: surface runoff which is collected or channelled by 
man; discharges through pipes, sewers, or other conveyances owned by a 
State, municipality, or other person which do not lead to a treatment 
works; and discharges through pipes, sewers, or other conveyances, 
leading into privately owned treatment works. This term does not include 
an addition of pollutants by any ``indirect discharger.''
    Discharge Monitoring Report (``DMR'') means the EPA uniform national 
form, including any subsequent additions, revisions, or modifications 
for the reporting of self-monitoring results by permittees. DMRs must be 
used by ``approved States'' as well as by EPA. EPA will supply DMRs to 
any approved State upon request. The EPA national forms may be modified 
to substitute the State Agency name, address, logo, and other similar 
information, as appropriate, in place of EPA's.

[[Page 162]]

    DMR means ``Discharge Monitoring Report.''
    Draft permit means a document prepared under Sec. 124.6 indicating 
the Director's tentative decision to issue or deny, modify, revoke and 
reissue, terminate, or reissue a ``permit.'' A notice of intent to 
terminate a permit, and a notice of intent to deny a permit, as 
discussed in Sec. 124.5, are types of ``draft permits.'' A denial of a 
request for modification, revocation and reissuance, or termination, as 
discussed in Sec. 124.5, is not a ``draft permit.'' A ``proposed 
permit'' is not a ``draft permit.''
    Effluent limitation means any restriction imposed by the Director on 
quantities, discharge rates, and concentrations of ``pollutants'' which 
are ``discharged'' from ``point sources'' into ``waters of the United 
States,'' the waters of the ``contiguous zone,'' or the ocean.
    Effluent limitations guidelines means a regulation published by the 
Administrator under section 304(b) of CWA to adopt or revise ``effluent 
limitations.''
    Environmental Protection Agency (``EPA'') means the United States 
Environmental Protection Agency.
    EPA means the United States ``Environmental Protection Agency.''
    Facility or activity means any NPDES ``point source'' or any other 
facility or activity (including land or appurtenances thereto) that is 
subject to regulation under the NPDES program.
    Federal Indian reservation means all land within the limits of any 
Indian reservation under the jurisdiction of the United States 
Government, notwithstanding the issuance of any patent, and including 
rights-of-way running through the reservation.
    General permit means an NPDES ``permit'' issued under Sec. 122.28 
authorizing a category of discharges under the CWA within a geographical 
area.
    Hazardous substance means any substance designated under 40 CFR part 
116 pursuant to section 311 of CWA.
    Indian 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 through the 
reservation;
    (2) All dependent Indian communities with the borders of the United 
States whether within the originally or subsequently acquired territory 
thereof, and whether within or without the limits of a 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 means any Indian Tribe, band, group, or community 
recognized by the Secretary of the Interior and exercising governmental 
authority over a Federal Indian reservation.
    Indirect discharger means a nondomestic discharger introducing 
``pollutants'' to a ``publicly owned treatment works.''
    Individual control strategy is defined at 40 CFR 123.46(c).
    Interstate agency means an agency of two or more States established 
by or under an agreement or compact approved by the Congress, or any 
other agency of two or more States having substantial powers or duties 
pertaining to the control of pollution as determined and approved by the 
Administrator under the CWA and regulations.
    Major facility means any NPDES ``facility or activity'' classified 
as such by the Regional Administrator, or, in the case of ``approved 
State programs,'' the Regional Administrator in conjunction with the 
State Director.
    Maximum daily discharge limitation means the highest allowable 
``daily discharge.''
    Municipality means a city, town, borough, county, parish, district, 
association, or other public body created by or under State law and 
having jurisdiction over disposal of sewage, industrial wastes, or other 
wastes, or an Indian tribe or an authorized Indian tribal organization, 
or a designated and approved management agency under section 208 of CWA.
    Municipal separate storm sewer system is defined at Sec. 122.26 
(b)(4) and (b)(7).
    National Pollutant Discharge Elimination System (NPDES) means the 
national program for issuing, modifying, revoking and reissuing, 
terminating, monitoring and enforcing permits, and imposing and 
enforcing pretreatment requirements, under sections 307, 402,

[[Page 163]]

318, and 405 of CWA. The term includes an ``approved program.''
    New discharger means any building, structure, facility, or 
installation:
    (a) From which there is or may be a ``discharge of pollutants;''
    (b) That did not commence the ``discharge of pollutants'' at a 
particular ``site'' prior to August 13, 1979;
    (c) Which is not a ``new source;'' and
    (d) Which has never received a finally effective NDPES permit for 
discharges at that ``site.''

This definition includes an ``indirect discharger'' which commences 
discharging into ``waters of the United States'' after August 13, 1979. 
It also includes any existing mobile point source (other than an 
offshore or coastal oil and gas exploratory drilling rig or a coastal 
oil and gas developmental drilling rig) such as a seafood processing 
rig, seafood processing vessel, or aggregate plant, that begins 
discharging at a ``site'' for which it does not have a permit; and any 
offshore or coastal mobile oil and gas exploratory drilling rig or 
coastal mobile oil and gas developmental drilling rig that commences the 
discharge of pollutants after August 13, 1979, at a ``site'' under EPA's 
permitting jurisdiction for which it is not covered by an individual or 
general permit and which is located in an area determined by the 
Regional Administrator in the issuance of a final permit to be an area 
or biological concern. In determining whether an area is an area of 
biological concern, the Regional Administrator shall consider the 
factors specified in 40 CFR 125.122(a) (1) through (10).

An offshore or coastal mobile exploratory drilling rig or coastal mobile 
developmental drilling rig will be considered a ``new discharger'' only 
for the duration of its discharge in an area of biological concern.
    New source means any building, structure, facility, or installation 
from which there is or may be a ``discharge of pollutants,'' the 
construction of which commenced:
    (a) After promulgation of standards of performance under section 306 
of CWA which are applicable to such source, or
    (b) After proposal of standards of performance in accordance with 
section 306 of CWA which are applicable to such source, but only if the 
standards are promulgated in accordance with section 306 within 120 days 
of their proposal.
    NPDES means ``National Pollutant Discharge Elimination System.''
    Owner or operator means the owner or operator of any ``facility or 
activity'' subject to regulation under the NPDES program.
    Permit means an authorization, license, or equivalent control 
document issued by EPA or an ``approved State'' to implement the 
requirements of this part and parts 123 and 124. ``Permit'' includes an 
NPDES ``general permit'' (Sec. 122.28). Permit does not include any 
permit which has not yet been the subject of final agency action, such 
as a ``draft permit'' or a ``proposed permit.''
    Person means an individual, association, partnership, corporation, 
municipality, State or Federal agency, or an agent or employee thereof.
    Point source means any discernible, confined, and discrete 
conveyance, including but not limited to, any pipe, ditch, channel, 
tunnel, conduit, well, discrete fissure, container, rolling stock, 
concentrated animal feeding operation, landfill leachate collection 
system, vessel or other floating craft from which pollutants are or may 
be discharged. This term does not include return flows from irrigated 
agriculture or agricultural storm water runoff. (See Sec. 122.3).
    Pollutant means dredged spoil, solid waste, incinerator residue, 
filter backwash, sewage, garbage, sewage sludge, munitions, chemical 
wastes, biological materials, radioactive materials (except those 
regulated under the Atomic Energy Act of 1954, as amended (42 U.S.C. 
2011 et seq.)), heat, wrecked or discarded equipment, rock, sand, cellar 
dirt and industrial, municipal, and agricultural waste discharged into 
water. It does not mean:
    (a) Sewage from vessels; or
    (b) Water, gas, or other material which is injected into a well to 
facilitate production of oil or gas, or water derived in association 
with oil and gas production and disposed of in a well, if the well used 
either to facilitate production or for disposal purposes is approved by 
authority of the State in

[[Page 164]]

which the well is located, and if the State determines that the 
injection or disposal will not result in the degradation of ground or 
surface water resources.
    Note: Radioactive materials covered by the Atomic Energy Act are 
those encompassed in its definition of source, byproduct, or special 
nuclear materials. Examples of materials not covered include radium and 
accelerator-produced isotopes. See Train v. Colorado Public Interest 
Research Group, Inc., 426 U.S. 1 (1976).
    POTW is defined at Sec. 403.3 of this chapter.
    Primary industry category means any industry category listed in the 
NRDC settlement agreement (Natural Resources Defense Council et al. v. 
Train, 8 E.R.C. 2120 (D.D.C. 1976), modified 12 E.R.C. 1833 (D.D.C. 
1979)); also listed in appendix A of part 122.
    Privately owned treatment works means any device or system which is 
(a) used to treat wastes from any facility whose operator is not the 
operator of the treatment works and (b) not a ``POTW.''
    Process wastewater means any water which, during manufacturing or 
processing, comes into direct contact with or results from the 
production or use of any raw material, intermediate product, finished 
product, byproduct, or waste product.
    Proposed permit means a State NPDES ``permit'' prepared after the 
close of the public comment period (and, when applicable, any public 
hearing and administrative appeals) which is sent to EPA for review 
before final issuance by the State. A ``proposed permit'' is not a 
``draft permit.''
    Publicly owned treatment works is defined at 40 CFR 403.3.
    Recommencing discharger means a source which recommences discharge 
after terminating operations.
    Regional Administrator means the Regional Administrator of the 
appropriate Regional Office of the Environmental Protection Agency or 
the authorized representative of the Regional Administrator.
    Schedule of compliance means a schedule of remedial measures 
included in a ``permit'', including an enforceable sequence of interim 
requirements (for example, actions, operations, or milestone events) 
leading to compliance with the CWA and regulations.
    Secondary industry category means any industry category which is not 
a ``primary industry category.''
    Secretary means the Secretary of the Army, acting through the Chief 
of Engineers.
    Septage means the liquid and solid material pumped from a septic 
tank, cesspool, or similar domestic sewage treatment system, or a 
holding tank when the system is cleaned or maintained.
    Sewage from vessels means human body wastes and the wastes from 
toilets and other receptacles intended to receive or retain body wastes 
that are discharged from vessels and regulated under section 312 of CWA, 
except that with respect to commercial vessels on the Great Lakes this 
term includes graywater. For the purposes of this definition, 
``graywater'' means galley, bath, and shower water.
    Sewage Sludge means any solid, semi-solid, or liquid residue removed 
during the treatment of municipal waste water or domestic sewage. Sewage 
sludge includes, but is not limited to, solids removed during primary, 
secondary, or advanced waste water treatment, scum, septage, portable 
toilet pumpings, type III marine sanitation device pumpings (33 CFR part 
159), and sewage sludge products. Sewage sludge does not include grit or 
screenings, or ash generated during the incineration of sewage sludge.
    Sewage sludge use or disposal practice means the collection, 
storage, treatment, transportation, processing, monitoring, use, or 
disposal of sewage sludge.
    Silvicultural point source is defined at Sec. 122.27.
    Site means the land or water area where any ``facility or activity'' 
is physically located or conducted, including adjacent land used in 
connection with the facility or activity.
    Sludge-only facility means any ``treatment works treating domestic 
sewage'' whose methods of sewage sludge use or disposal are subject to 
regulations promulgated pursuant to section 405(d) of the CWA and is 
required to obtain a permit under Sec. 122.1(b)(2).

[[Page 165]]

    Standards for sewage sludge use or disposal means the regulations 
promulgated pursuant to section 405(d) of the CWA which govern minimum 
requirements for sludge quality, management practices, and monitoring 
and reporting applicable to sewage sludge or the use or disposal of 
sewage sludge by any person.
    State means any of the 50 States, the District of Columbia, Guam, 
the Commonwealth of Puerto Rico, the Virgin Islands, American Samoa, the 
Commonwealth of the Northern Mariana Islands, the Trust Territory of the 
Pacific Islands, or an Indian Tribe as defined in these regulations 
which meets the requirements of Sec. 123.31 of this chapter.
    State Director means the chief administrative officer of any State 
or interstate agency operating an ``approved program,'' or the delegated 
representative of the State Director. If responsibility is divided among 
two or more State or interstate agencies, ``State Director'' means the 
chief administrative officer of the State or interstate agency 
authorized to perform the particular procedure or function to which 
reference is made.
    State/EPA Agreement means an agreement between the Regional 
Administrator and the State which coordinates EPA and State activities, 
responsibilities and programs including those under the CWA programs.
    Storm water is defined at Sec. 122.26(b)(13).
    Storm water discharge associated with industrial activity is defined 
at Sec. 122.26(b)(14).
    Total dissolved solids means the total dissolved (filterable) solids 
as determined by use of the method specified in 40 CFR part 136.
    Toxic pollutant means any pollutant listed as toxic under section 
307(a)(1) or, in the case of ``sludge use or disposal practices,'' any 
pollutant identified in regulations implementing section 405(d) of the 
CWA.
    Treatment works treating domestic sewage means a POTW or any other 
sewage sludge or waste water treatment devices or systems, regardless of 
ownership (including federal facilities), used in the storage, 
treatment, recycling, and reclamation of municipal or domestic sewage, 
including land dedicated for the disposal of sewage sludge. This 
definition does not include septic tanks or similar devices. For 
purposes of this definition, ``domestic sewage'' includes waste and 
waste water from humans or household operations that are discharged to 
or otherwise enter a treatment works. In States where there is no 
approved State sludge management program under section 405(f) of the 
CWA, the Regional Administrator may designate any person subject to the 
standards for sewage sludge use and disposal in 40 CFR part 503 as a 
``treatment works treating domestic sewage,'' where he or she finds that 
there is a potential for adverse effects on public health and the 
environment from poor sludge quality or poor sludge handling, use or 
disposal practices, or where he or she finds that such designation is 
necessary to ensure that such person is in compliance with 40 CFR part 
503.
    TWTDS means ``treatment works treating domestic sewage.''
    Upset is defined at Sec. 122.41(n).
    Variance means any mechanism or provision under section 301 or 316 
of CWA or under 40 CFR part 125, or in the applicable ``effluent 
limitations guidelines'' which allows modification to or waiver of the 
generally applicable effluent limitation requirements or time deadlines 
of CWA. This includes provisions which allow the establishment of 
alternative limitations based on fundamentally different factors or on 
sections 301(c), 301(g), 301(h), 301(i), or 316(a) of CWA.
    Waters of the United States or waters of the U.S. means:
    (a) All waters which are currently used, were used in the past, or 
may be susceptible to use in interstate or foreign commerce, including 
all waters which are subject to the ebb and flow of the tide;
    (b) All interstate waters, including interstate ``wetlands;''
    (c) All other waters such as intrastate lakes, rivers, streams 
(including intermittent streams), mudflats, sandflats, ``wetlands,'' 
sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds 
the use, degradation, or destruction of which would affect or

[[Page 166]]

could affect interstate or foreign commerce including any such waters:
    (1) Which are or could be used by interstate or foreign travelers 
for recreational or other purposes;
    (2) From which fish or shellfish are or could be taken and sold in 
interstate or foreign commerce; or
    (3) Which are used or could be used for industrial purposes by 
industries in interstate commerce;
    (d) All impoundments of waters otherwise defined as waters of the 
United States under this definition;
    (e) Tributaries of waters identified in paragraphs (a) through (d) 
of this definition;
    (f) The territorial sea; and
    (g) ``Wetlands'' adjacent to waters (other than waters that are 
themselves wetlands) identified in paragraphs (a) through (f) of this 
definition.

Waste treatment systems, including treatment ponds or lagoons designed 
to meet the requirements of CWA (other than cooling ponds as defined in 
40 CFR 423.11(m) which also meet the criteria of this definition) are 
not waters of the United States. This exclusion applies only to manmade 
bodies of water which neither were originally created in waters of the 
United States (such as disposal area in wetlands) nor resulted from the 
impoundment of waters of the United States. [See Note 1 of this 
section.] Waters of the United States do not include prior converted 
cropland. Notwithstanding the determination of an area's status as prior 
converted cropland by any other federal agency, for the purposes of the 
Clean Water Act, the final authority regarding Clean Water Act 
jurisdiction remains with EPA.
    Wetlands means those areas that are inundated or saturated by 
surface or groundwater at a frequency and duration sufficient to 
support, and that under normal circumstances do support, a prevalence of 
vegetation typically adapted for life in saturated soil conditions. 
Wetlands generally include swamps, marshes, bogs, and similar areas.
    Whole effluent toxicity means the aggregate toxic effect of an 
effluent measured directly by a toxicity test.
    Note: At 45 FR 48620, July 21, 1980, the Environmental Protection 
Agency suspended until further notice in Sec. 122.2, the last sentence, 
beginning ``This exclusion applies . . .'' in the definition of ``Waters 
of the United States.'' This revision continues that suspension. \1\
---------------------------------------------------------------------------

    \1\ Editorial Note: The words ``This revision'' refer to the 
document published at 48 FR 14153, Apr. 1, 1983.

(Clean Water Act (33 U.S.C. 1251 et seq.), Safe Drinking Water Act (42 
U.S.C. 300f et seq.), Clean Air Act (42 U.S.C. 7401 et seq.), Resource 
---------------------------------------------------------------------------
Conservation and Recovery Act (42 U.S.C. 6901 et seq.))

[48 FR 14153, Apr. 1, 1983, as amended at 48 FR 39619, Sept. 1, 1983; 50 
FR 6940, 6941, Feb. 19, 1985; 54 FR 254, Jan. 4, 1989; 54 FR 18781, May 
2, 1989; 54 FR 23895, June 2, 1989; 58 FR 45039, Aug. 25, 1993; 58 FR 
67980, Dec. 22, 1993; 64 FR 42462, Aug. 4, 1999; 65 FR 30905, May 15, 
2000]



Sec. 122.3  Exclusions.

    The following discharges do not require NPDES permits:
    (a) Any discharge of sewage from vessels, effluent from properly 
functioning marine engines, laundry, shower, and galley sink wastes, or 
any other discharge incidental to the normal operation of a vessel. This 
exclusion does not apply to rubbish, trash, garbage, or other such 
materials discharged overboard; nor to other discharges when the vessel 
is operating in a capacity other than as a means of transportation such 
as when used as an energy or mining facility, a storage facility or a 
seafood processing facility, or when secured to a storage facility or a 
seafood processing facility, or when secured to the bed of the ocean, 
contiguous zone or waters of the United States for the purpose of 
mineral or oil exploration or development.
    (b) Discharges of dredged or fill material into waters of the United 
States which are regulated under section 404 of CWA.
    (c) The introduction of sewage, industrial wastes or other 
pollutants into publicly owned treatment works by indirect dischargers. 
Plans or agreements to switch to this method of disposal in the future 
do not relieve dischargers of the obligation to have and comply with 
permits until all discharges of pollutants to waters of the United 
States are eliminated. (See also Sec. 122.47(b)). This

[[Page 167]]

exclusion does not apply to the introduction of pollutants to privately 
owned treatment works or to other discharges through pipes, sewers, or 
other conveyances owned by a State, municipality, or other party not 
leading to treatment works.
    (d) Any discharge in compliance with the instructions of an On-Scene 
Coordinator pursuant to 40 CFR part 300 (The National Oil and Hazardous 
Substances Pollution Contingency Plan) or 33 CFR 153.10(e) (Pollution by 
Oil and Hazardous Substances).
    (e) Any introduction of pollutants from non point-source 
agricultural and silvicultural activities, including storm water runoff 
from orchards, cultivated crops, pastures, range lands, and forest 
lands, but not discharges from concentrated animal feeding operations as 
defined in Sec. 122.23, discharges from concentrated aquatic animal 
production facilities as defined in Sec. 122.24, discharges to 
aquaculture projects as defined in Sec. 122.25, and discharges from 
silvicultural point sources as defined in Sec. 122.27.
    (f) Return flows from irrigated agriculture.
    (g) Discharges into a privately owned treatment works, except as the 
Director may otherwise require under Sec. 122.44(m).
    (h) The application of pesticides consistent with all relevant 
requirements under FIFRA (i.e., those relevant to protecting water 
quality), in the following two circumstances:
    (1) The application of pesticides directly to waters of the United 
States in order to control pests. Examples of such applications include 
applications to control mosquito larvae, aquatic weeds, or other pests 
that are present in waters of the United States.
    (2) The application of pesticides to control pests that are present 
over waters of the United States, including near such waters, where a 
portion of the pesticides will unavoidably be deposited to waters of the 
United States in order to target the pests effectively; for example, 
when insecticides are aerially applied to a forest canopy where waters 
of the United States may be present below the canopy or when pesticides 
are applied over or near water for control of adult mosquitoes or other 
pests.
    (i) Discharges from a water transfer. Water transfer means an 
activity that conveys or connects waters of the United States without 
subjecting the transferred water to intervening industrial, municipal, 
or commercial use. This exclusion does not apply to pollutants 
introduced by the water transfer activity itself to the water being 
transferred.

[48 FR 14153, Apr. 1, 1983, as amended at 54 FR 254, 258, Jan. 4, 1989; 
71 FR 68492, Nov. 27, 2006; 73 FR 33708, June 13, 2008]



Sec. 122.4  Prohibitions (applicable to State NPDES programs, see Sec. 

123.25).

    No permit may be issued:
    (a) When the conditions of the permit do not provide for compliance 
with the applicable requirements of CWA, or regulations promulgated 
under CWA;
    (b) When the applicant is required to obtain a State or other 
appropriate certification under section 401 of CWA and Sec. 124.53 and 
that certification has not been obtained or waived;
    (c) By the State Director where the Regional Administrator has 
objected to issuance of the permit under Sec. 123.44;
    (d) When the imposition of conditions cannot ensure compliance with 
the applicable water quality requirements of all affected States;
    (e) When, in the judgment of the Secretary, anchorage and navigation 
in or on any of the waters of the United States would be substantially 
impaired by the discharge;
    (f) For the discharge of any radiological, chemical, or biological 
warfare agent or high-level radioactive waste;
    (g) For any discharge inconsistent with a plan or plan amendment 
approved under section 208(b) of CWA;
    (h) For any discharge to the territorial sea, the waters of the 
contiguous zone, or the oceans in the following circumstances:
    (1) Before the promulgation of guidelines under section 403(c) of 
CWA (for determining degradation of the waters of the territorial seas, 
the contiguous zone, and the oceans) unless the Director determines 
permit issuance to be in the public interest; or

[[Page 168]]

    (2) After promulgation of guidelines under section 403(c) of CWA, 
when insufficient information exists to make a reasonable judgment 
whether the discharge complies with them.
    (i) To a new source or a new discharger, if the discharge from its 
construction or operation will cause or contribute to the violation of 
water quality standards. The owner or operator of a new source or new 
discharger proposing to discharge into a water segment which does not 
meet applicable water quality standards or is not expected to meet those 
standards even after the application of the effluent limitations 
required by sections 301(b)(1)(A) and 301(b)(1)(B) of CWA, and for which 
the State or interstate agency has performed a pollutants load 
allocation for the pollutant to be discharged, must demonstrate, before 
the close of the public comment period, that:
    (1) There are sufficient remaining pollutant load allocations to 
allow for the discharge; and
    (2) The existing dischargers into that segment are subject to 
compliance schedules designed to bring the segment into compliance with 
applicable water quality standards. The Director may waive the 
submission of information by the new source or new discharger required 
by paragraph (i) of this section if the Director determines that the 
Director already has adequate information to evaluate the request. An 
explanation of the development of limitations to meet the criteria of 
this paragraph (i)(2) is to be included in the fact sheet to the permit 
under Sec. 124.56(b)(1) of this chapter.

[48 FR 14153, Apr. 1, 1983, as amended at 50 FR 6940, Feb. 19, 1985; 65 
FR 30905, May 15, 2000]



Sec. 122.5  Effect of a permit.

    (a) Applicable to State programs, see Sec. 123.25. (1) Except for 
any toxic effluent standards and prohibitions imposed under section 307 
of the CWA and ``standards for sewage sludge use or disposal'' under 
405(d) of the CWA, compliance with a permit during its term constitutes 
compliance, for purposes of enforcement, with sections 301, 302, 306, 
307, 318, 403, and 405 (a)-(b) of CWA. However, a permit may be 
modified, revoked and reissued, or terminated during its term for cause 
as set forth in Sec. Sec. 122.62 and 122.64.
    (2) Compliance with a permit condition which implements a particular 
``standard for sewage sludge use or disposal'' shall be an affirmative 
defense in any enforcement action brought for a violation of that 
``standard for sewage sludge use or disposal'' pursuant to sections 
405(e) and 309 of the CWA.
    (b) Applicable to State programs, See Sec. 123.25. The issuance of 
a permit does not convey any property rights of any sort, or any 
exclusive privilege.
    (c) The issuance of a permit does not authorize any injury to 
persons or property or invasion of other private rights, or any 
infringement of State or local law or regulations.

[48 FR 14153, Apr. 1, 1983, as amended at 54 FR 18782, May 2, 1989]



Sec. 122.6  Continuation of expiring permits.

    (a) EPA permits. When EPA is the permit-issuing authority, the 
conditions of an expired permit continue in force under 5 U.S.C. 558(c) 
until the effective date of a new permit (see Sec. 124.15) if:
    (1) The permittee has submitted a timely application under Sec. 
122.21 which is a complete (under Sec. 122.21(e)) application for a new 
permit; and
    (2) The Regional Administrator, through no fault of the permittee 
does not issue a new permit with an effective date under Sec. 124.15 on 
or before the expiration date of the previous permit (for example, when 
issuance is impracticable due to time or resource constraints).
    (b) Effect. Permits continued under this section remain fully 
effective and enforceable.
    (c) Enforcement. When the permittee is not in compliance with the 
conditions of the expiring or expired permit the Regional Administrator 
may choose to do any or all of the following:
    (1) Initiate enforcement action based upon the permit which has been 
continued;
    (2) Issue a notice of intent to deny the new permit under Sec. 
124.6. If the permit is denied, the owner or operator would then be 
required to cease the activities authorized by the continued

[[Page 169]]

permit or be subject to enforcement action for operating without a 
permit;
    (3) Issue a new permit under part 124 with appropriate conditions; 
or
    (4) Take other actions authorized by these regulations.
    (d) State continuation. (1) An EPA-issued permit does not continue 
in force beyond its expiration date under Federal law if at that time a 
State is the permitting authority. States authorized to administer the 
NPDES program may continue either EPA or State-issued permits until the 
effective date of the new permits, if State law allows. Otherwise, the 
facility or activity is operating without a permit from the time of 
expiration of the old permit to the effective date of the State-issued 
new permit.

[48 FR 14153, Apr. 1, 1983, as amended at 50 FR 6940, Feb. 19, 1985]



Sec. 122.7  Confidentiality of information.

    (a) In accordance with 40 CFR part 2, any information submitted to 
EPA pursuant to these regulations may be claimed as confidential by the 
submitter. Any such claim must be asserted at the time of submission in 
the manner prescribed on the application form or instructions or, in the 
case of other submissions, by stamping the words ``confidential business 
information'' on each page containing such information. If no claim is 
made at the time of submission, EPA may make the information available 
to the public without further notice. If a claim is asserted, the 
information will be treated in accordance with the procedures in 40 CFR 
part 2 (Public Information).
    (b) Applicable to State programs, see Sec. 123.25. Claims of 
confidentiality for the following information will be denied:
    (1) The name and address of any permit applicant or permittee;
    (2) Permit applications, permits, and effluent data.
    (c) Applicable to State programs, see Sec. 123.25. Information 
required by NPDES application forms provided by the Director under Sec. 
122.21 may not be claimed confidential. This includes information 
submitted on the forms themselves and any attachments used to supply 
information required by the forms.



   Subpart B_Permit Application and Special NPDES Program Requirements



Sec. 122.21  Application for a permit (applicable to State programs, see Sec. 

123.25).

    (a) Duty to apply. (1) Any person who discharges or proposes to 
discharge pollutants or who owns or operates a ``sludge-only facility'' 
whose sewage sludge use or disposal practice is regulated by part 503 of 
this chapter, and who does not have an effective permit, except persons 
covered by general permits under Sec. 122.28, excluded under Sec. 
122.3, or a user of a privately owned treatment works unless the 
Director requires otherwise under Sec. 122.44(m), must submit a 
complete application to the Director in accordance with this section and 
part 124 of this chapter. The requirements for concentrated animal 
feeding operations are described in Sec. 122.23(d).
    (2) Application Forms: (i) All applicants for EPA-issued permits 
must submit applications on EPA permit application forms. More than one 
application form may be required from a facility depending on the number 
and types of discharges or outfalls found there. Application forms may 
be obtained by contacting the EPA water resource center at (202) 260-
7786 or Water Resource Center, U.S. EPA, Mail Code 4100, 1200 
Pennsylvania Ave., NW., Washington, DC 20460 or at the EPA Internet site 
www.epa.gov/owm/npdes.htm. Applications for EPA-issued permits must be 
submitted as follows:
    (A) All applicants, other than POTWs and TWTDS, must submit Form 1.
    (B) Applicants for new and existing POTWs must submit the 
information contained in paragraph (j) of this section using Form 2A or 
other form provided by the director.
    (C) Applicants for concentrated animal feeding operations or aquatic 
animal production facilities must submit Form 2B.
    (D) Applicants for existing industrial facilities (including 
manufacturing facilities, commercial facilities, mining activities, and 
silvicultural activities), must submit Form 2C.

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    (E) Applicants for new industrial facilities that discharge process 
wastewater must submit Form 2D.
    (F) Applicants for new and existing industrial facilities that 
discharge only nonprocess wastewater must submit Form 2E.
    (G) Applicants for new and existing facilities whose discharge is 
composed entirely of storm water associated with industrial activity 
must submit Form 2F, unless exempted by Sec. 122.26(c)(1)(ii). If the 
discharge is composed of storm water and non-storm water, the applicant 
must also submit, Forms 2C, 2D, and/or 2E, as appropriate (in addition 
to Form 2F).
    (H) Applicants for new and existing TWTDS, subject to paragraph 
(c)(2)(i) of this section must submit the application information 
required by paragraph (q) of this section, using Form 2S or other form 
provided by the director.
    (ii) The application information required by paragraph (a)(2)(i) of 
this section may be electronically submitted if such method of submittal 
is approved by EPA or the Director.
    (iii) Applicants can obtain copies of these forms by contacting the 
Water Management Divisions (or equivalent division which contains the 
NPDES permitting function) of the EPA Regional Offices. The Regional 
Offices' addresses can be found at Sec. 1.7 of this chapter.
    (iv) Applicants for State-issued permits must use State forms which 
must require at a minimum the information listed in the appropriate 
paragraphs of this section.
    (b) Who applies? When a facility or activity is owned by one person 
but is operated by another person, it is the operator's duty to obtain a 
permit.
    (c) Time to apply. (1) Any person proposing a new discharge, shall 
submit an application at least 180 days before the date on which the 
discharge is to commence, unless permission for a later date has been 
granted by the Director. Facilities proposing a new discharge of storm 
water associated with industrial activity shall submit an application 
180 days before that facility commences industrial activity which may 
result in a discharge of storm water associated with that industrial 
activity. Facilities described under Sec. 122.26(b)(14)(x) or 
(b)(15)(i) shall submit applications at least 90 days before the date on 
which construction is to commence. Different submittal dates may be 
required under the terms of applicable general permits. Persons 
proposing a new discharge are encouraged to submit their applications 
well in advance of the 90 or 180 day requirements to avoid delay. See 
also paragraph (k) of this section and Sec. 122.26(c)(1)(i)(G) and 
(c)(1)(ii).
    (2) Permits under section 405(f) of CWA. All TWTDS whose sewage 
sludge use or disposal practices are regulated by part 503 of this 
chapter must submit permit applications according to the applicable 
schedule in paragraphs (c)(2)(i) or (ii) of this section.
    (i) A TWTDS with a currently effective NPDES permit must submit a 
permit application at the time of its next NPDES permit renewal 
application. Such information must be submitted in accordance with 
paragraph (d) of this section.
    (ii) Any other TWTDS not addressed under paragraph (c)(2)(i) of this 
section must submit the information listed in paragraphs (c)(2)(ii)(A) 
through (E) of this section to the Director within 1 year after 
publication of a standard applicable to its sewage sludge use or 
disposal practice(s), using Form 2S or another form provided by the 
Director. The Director will determine when such TWTDS must submit a full 
permit application.
    (A) The TWTDS's name, mailing address, location, and status as 
federal, State, private, public or other entity;
    (B) The applicant's name, address, telephone number, and ownership 
status;
    (C) A description of the sewage sludge use or disposal practices. 
Unless the sewage sludge meets the requirements of paragraph (q)(8)(iv) 
of this section, the description must include the name and address of 
any facility where sewage sludge is sent for treatment or disposal, and 
the location of any land application sites;
    (D) Annual amount of sewage sludge generated, treated, used or 
disposed (estimated dry weight basis); and
    (E) The most recent data the TWTDS may have on the quality of the 
sewage sludge.

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    (iii) Notwithstanding paragraphs (c)(2)(i) or (ii) of this section, 
the Director may require permit applications from any TWTDS at any time 
if the Director determines that a permit is necessary to protect public 
health and the environment from any potential adverse effects that may 
occur from toxic pollutants in sewage sludge.
    (iv) Any TWTDS that commences operations after promulgation of an 
applicable ``standard for sewage sludge use or disposal'' must submit an 
application to the Director at least 180 days prior to the date proposed 
for commencing operations.
    (d) Duty to reapply. (1) Any POTW with a currently effective permit 
shall submit a new application at least 180 days before the expiration 
date of the existing permit, unless permission for a later date has been 
granted by the Director. (The Director shall not grant permission for 
applications to be submitted later than the expiration date of the 
existing permit.)
    (2) All other permittees with currently effective permits shall 
submit a new application 180 days before the existing permit expires, 
except that:
    (i) The Regional Administrator may grant permission to submit an 
application later than the deadline for submission otherwise applicable, 
but no later than the permit expiration date; and
    (3) [Reserved]
    (e) Completeness. (1) The Director shall not issue a permit before 
receiving a complete application for a permit except for NPDES general 
permits. An application for a permit is complete when the Director 
receives an application form and any supplemental information which are 
completed to his or her satisfaction. The completeness of any 
application for a permit shall be judged independently of the status of 
any other permit application or permit for the same facility or 
activity. For EPA administered NPDES programs, an application which is 
reviewed under Sec. 124.3 of this chapter is complete when the Director 
receives either a complete application or the information listed in a 
notice of deficiency.
    (2) A permit application shall not be considered complete if a 
permitting authority has waived application requirements under 
paragraphs (j) or (q) of this section and EPA has disapproved the waiver 
application. If a waiver request has been submitted to EPA more than 210 
days prior to permit expiration and EPA has not disapproved the waiver 
application 181 days prior to permit expiration, the permit application 
lacking the information subject to the waiver application shall be 
considered complete.
    (f) Information requirements. All applicants for NPDES permits, 
other than POTWs and other TWTDS, must provide the following information 
to the Director, using the application form provided by the Director. 
Additional information required of applicants is set forth in paragraphs 
(g) through (k) of this section.
    (1) The activities conducted by the applicant which require it to 
obtain an NPDES permit.
    (2) Name, mailing address, and location of the facility for which 
the application is submitted.
    (3) Up to four SIC codes which best reflect the principal products 
or services provided by the facility.
    (4) The operator's name, address, telephone number, ownership 
status, and status as Federal, State, private, public, or other entity.
    (5) Whether the facility is located on Indian lands.
    (6) A listing of all permits or construction approvals received or 
applied for under any of the following programs:
    (i) Hazardous Waste Management program under RCRA.
    (ii) UIC program under SDWA.
    (iii) NPDES program under CWA.
    (iv) Prevention of Significant Deterioration (PSD) program under the 
Clean Air Act.
    (v) Nonattainment program under the Clean Air Act.
    (vi) National Emission Standards for Hazardous Pollutants (NESHAPS) 
preconstruction approval under the Clean Air Act.
    (vii) Ocean dumping permits under the Marine Protection Research and 
Sanctuaries Act.
    (viii) Dredge or fill permits under section 404 of CWA.
    (ix) Other relevant environmental permits, including State permits.

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    (7) A topographic map (or other map if a topographic map is 
unavailable) extending one mile beyond the property boundaries of the 
source, depicting the facility and each of its intake and discharge 
structures; each of its hazardous waste treatment, storage, or disposal 
facilities; each well where fluids from the facility are injected 
underground; and those wells, springs, other surface water bodies, and 
drinking water wells listed in public records or otherwise known to the 
applicant in the map area.
    (8) A brief description of the nature of the business.
    (g) Application requirements for existing manufacturing, commercial, 
mining, and silvicultural dischargers. Existing manufacturing, 
commercial mining, and silvicultural dischargers applying for NPDES 
permits, except for those facilities subject to the requirements of 
Sec. 122.21(h), shall provide the following information to the 
Director, using application forms provided by the Director.
    (1) Outfall location. The latitude and longitude to the nearest 15 
seconds and the name of the receiving water.
    (2) Line drawing. A line drawing of the water flow through the 
facility with a water balance, showing operations contributing 
wastewater to the effluent and treatment units. Similar processes, 
operations, or production areas may be indicated as a single unit, 
labeled to correspond to the more detailed identification under 
paragraph (g)(3) of this section. The water balance must show 
approximate average flows at intake and discharge points and between 
units, including treatment units. If a water balance cannot be 
determined (for example, for certain mining activities), the applicant 
may provide instead a pictorial description of the nature and amount of 
any sources of water and any collection and treatment measures.
    (3) Average flows and treatment. A narrative identification of each 
type of process, operation, or production area which contributes 
wastewater to the effluent for each outfall, including process 
wastewater, cooling water, and stormwater runoff; the average flow which 
each process contributes; and a description of the treatment the 
wastewater receives, including the ultimate disposal of any solid or 
fluid wastes other than by discharge. Processes, operations, or 
production areas may be described in general terms (for example, ``dye-
making reactor'', ``distillation tower''). For a privately owned 
treatment works, this information shall include the identity of each 
user of the treatment works. The average flow of point sources composed 
of storm water may be estimated. The basis for the rainfall event and 
the method of estimation must be indicated.
    (4) Intermittent flows. If any of the discharges described in 
paragraph (g)(3) of this section are intermittent or seasonal, a 
description of the frequency, duration and flow rate of each discharge 
occurrence (except for stormwater runoff, spillage or leaks).
    (5) Maximum production. If an effluent guideline promulgated under 
section 304 of CWA applies to the applicant and is expressed in terms of 
production (or other measure of operation), a reasonable measure of the 
applicant's actual production reported in the units used in the 
applicable effluent guideline. The reported measure must reflect the 
actual production of the facility as required by Sec. 122.45(b)(2).
    (6) Improvements. If the applicant is subject to any present 
requirements or compliance schedules for construction, upgrading or 
operation of waste treatment equipment, an identification of the 
abatement requirement, a description of the abatement project, and a 
listing of the required and projected final compliance dates.
    (7) Effluent characteristics. (i) Information on the discharge of 
pollutants specified in this paragraph (g)(7) (except information on 
storm water discharges which is to be provided as specified in Sec. 
122.26). When ``quantitative data'' for a pollutant are required, the 
applicant must collect a sample of effluent and analyze it for the 
pollutant in accordance with analytical methods approved under Part 136 
of this chapter unless use of another method is required for the 
pollutant under 40 CFR subchapters N or O. When no analytical method is 
approved under Part 136 or required under subchapters N or O, the 
applicant may use any suitable method

[[Page 173]]

but must provide a description of the method. When an applicant has two 
or more outfalls with substantially identical effluents, the Director 
may allow the applicant to test only one outfall and report that 
quantitative data as applying to the substantially identical outfall. 
The requirements in paragraphs (g)(7)(vi) and (vii) of this section 
state that an applicant must provide quantitative data for certain 
pollutants known or believed to be present do not apply to pollutants 
present in a discharge solely as the result of their presence in intake 
water; however, an applicant must report such pollutants as present. 
When paragraph (g)(7) of this section requires analysis of pH, 
temperature, cyanide, total phenols, residual chlorine, oil and grease, 
fecal coliform (including E. coli), and Enterococci (previously known as 
fecal streptococcus at Sec. 122.26 (d)(2)(iii)(A)(3)), or volatile 
organics, grab samples must be collected for those pollutants. For all 
other pollutants, a 24-hour composite sample, using a minimum of four 
(4) grab samples, must be used unless specified otherwise at 40 CFR Part 
136. However, a minimum of one grab sample may be taken for effluents 
from holding ponds or other impoundments with a retention period greater 
than 24 hours. In addition, for discharges other than storm water 
discharges, the Director may waive composite sampling for any outfall 
for which the applicant demonstrates that the use of an automatic 
sampler is infeasible and that the minimum of four (4) grab samples will 
be a representative sample of the effluent being discharged. Results of 
analyses of individual grab samples for any parameter may be averaged to 
obtain the daily average. Grab samples that are not required to be 
analyzed immediately (see Table II at 40 CFR 136.3 (e)) may be 
composited in the laboratory, provided that container, preservation, and 
holding time requirements are met (see Table II at 40 CFR 136.3 (e)) and 
that sample integrity is not compromised by compositing.
    (ii) Storm water discharges. For storm water discharges, all samples 
shall be collected from the discharge resulting from a storm event that 
is greater than 0.1 inch and at least 72 hours from the previously 
measurable (greater than 0.1 inch rainfall) storm event. Where feasible, 
the variance in the duration of the event and the total rainfall of the 
event should not exceed 50 percent from the average or median rainfall 
event in that area. For all applicants, a flow-weighted composite shall 
be taken for either the entire discharge or for the first three hours of 
the discharge. The flow-weighted composite sample for a storm water 
discharge may be taken with a continuous sampler or as a combination of 
a minimum of three sample aliquots taken in each hour of discharge for 
the entire discharge or for the first three hours of the discharge, with 
each aliquot being separated by a minimum period of fifteen minutes 
(applicants submitting permit applications for storm water discharges 
under Sec. 122.26(d) may collect flow-weighted composite samples using 
different protocols with respect to the time duration between the 
collection of sample aliquots, subject to the approval of the Director). 
However, a minimum of one grab sample may be taken for storm water 
discharges from holding ponds or other impoundments with a retention 
period greater than 24 hours. For a flow-weighted composite sample, only 
one analysis of the composite of aliquots is required. For storm water 
discharge samples taken from discharges associated with industrial 
activities, quantitative data must be reported for the grab sample taken 
during the first thirty minutes (or as soon thereafter as practicable) 
of the discharge for all pollutants specified in Sec. 122.26(c)(1). For 
all storm water permit applicants taking flow-weighted composites, 
quantitative data must be reported for all pollutants specified in Sec. 
122.26 except pH, temperature, cyanide, total phenols, residual 
chlorine, oil and grease, fecal coliform, and fecal streptococcus. The 
Director may allow or establish appropriate site-specific sampling 
procedures or requirements, including sampling locations, the season in 
which the sampling takes place, the minimum duration between the 
previous measurable storm event and the storm event sampled, the minimum 
or maximum level of precipitation required for an appropriate storm 
event, the form of precipitation sampled

[[Page 174]]

(snow melt or rain fall), protocols for collecting samples under part 
136 of this chapter, and additional time for submitting data on a case-
by-case basis. An applicant is expected to ``know or have reason to 
believe'' that a pollutant is present in an effluent based on an 
evaluation of the expected use, production, or storage of the pollutant, 
or on any previous analyses for the pollutant. (For example, any 
pesticide manufactured by a facility may be expected to be present in 
contaminated storm water runoff from the facility.)
    (iii) Reporting requirements. Every applicant must report 
quantitative data for every outfall for the following pollutants:

    Biochemical Oxygen Demand (BOD5)
    Chemical Oxygen Demand
    Total Organic Carbon
    Total Suspended Solids
    Ammonia (as N)
    Temperature (both winter and summer)
    pH

    (iv) The Director may waive the reporting requirements for 
individual point sources or for a particular industry category for one 
or more of the pollutants listed in paragraph (g)(7)(iii) of this 
section if the applicant has demonstrated that such a waiver is 
appropriate because information adequate to support issuance of a permit 
can be obtained with less stringent requirements.
    (v) Each applicant with processes in one or more primary industry 
category (see appendix A of this part) contributing to a discharge must 
report quantitative data for the following pollutants in each outfall 
containing process wastewater:
    (A) The organic toxic pollutants in the fractions designated in 
table I of appendix D of this part for the applicant's industrial 
category or categories unless the applicant qualifies as a small 
business under paragraph (g)(8) of this section. Table II of appendix D 
of this part lists the organic toxic pollutants in each fraction. The 
fractions result from the sample preparation required by the analytical 
procedure which uses gas chromatography/mass spectrometry. A 
determination that an applicant falls within a particular industrial 
category for the purposes of selecting fractions for testing is not 
conclusive as to the applicant's inclusion in that category for any 
other purposes. See Notes 2, 3, and 4 of this section.
    (B) The pollutants listed in table III of appendix D of this part 
(the toxic metals, cyanide, and total phenols).
    (vi)(A) Each applicant must indicate whether it knows or has reason 
to believe that any of the pollutants in table IV of appendix D of this 
part (certain conventional and nonconventional pollutants) is discharged 
from each outfall. If an applicable effluent limitations guideline 
either directly limits the pollutant or, by its express terms, 
indirectly limits the pollutant through limitations on an indicator, the 
applicant must report quantitative data. For every pollutant discharged 
which is not so limited in an effluent limitations guideline, the 
applicant must either report quantitative data or briefly describe the 
reasons the pollutant is expected to be discharged.
    (B) Each applicant must indicate whether it knows or has reason to 
believe that any of the pollutants listed in table II or table III of 
appendix D of this part (the toxic pollutants and total phenols) for 
which quantitative data are not otherwise required under paragraph 
(g)(7)(v) of this section are discharged from each outfall. For every 
pollutant expected to be discharged in concentrations of 10 ppb or 
greater the applicant must report quantitative data. For acrolein, 
acrylonitrile, 2,4 dinitrophenol, and 2-methyl-4, 6 dinitrophenol, where 
any of these four pollutants are expected to be discharged in 
concentrations of 100 ppb or greater the applicant must report 
quantitative data. For every pollutant expected to be discharged in 
concentrations less than 10 ppb, or in the case of acrolein, 
acrylonitrile, 2,4 dinitrophenol, and 2-methyl-4, 6 dinitrophenol, in 
concentrations less than 100 ppb, the applicant must either submit 
quantitative data or briefly describe the reasons the pollutant is 
expected to be discharged. An applicant qualifying as a small business 
under paragraph (g)(8) of this section is not required to analyze for 
pollutants listed in table II of appendix D of this part (the organic 
toxic pollutants).

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    (vii) Each applicant must indicate whether it knows or has reason to 
believe that any of the pollutants in table V of appendix D of this part 
(certain hazardous substances and asbestos) are discharged from each 
outfall. For every pollutant expected to be discharged, the applicant 
must briefly describe the reasons the pollutant is expected to be 
discharged, and report any quantitative data it has for any pollutant.
    (viii) Each applicant must report qualitative data, generated using 
a screening procedure not calibrated with analytical standards, for 
2,3,7,8-tetrachlorodibenzo-p-dioxin (TCDD) if it:
    (A) Uses or manufactures 2,4,5-trichlorophenoxy acetic acid (2,4,5,-
T); 2-(2,4,5-trichlorophenoxy) propanoic acid (Silvex, 2,4,5,-TP); 2-
(2,4,5-trichlorophenoxy) ethyl, 2,2-dichloropropionate (Erbon); O,O-
dimethyl O-(2,4,5-trichlorophenyl) phosphorothioate (Ronnel); 2,4,5-
trichlorophenol (TCP); or hexachlorophene (HCP); or
    (B) Knows or has reason to believe that TCDD is or may be present in 
an effluent.
    (8) Small business exemption. An application which qualifies as a 
small business under one of the following criteria is exempt from the 
requirements in paragraph (g)(7)(v)(A) or (g)(7)(vi)(A) of this section 
to submit quantitative data for the pollutants listed in table II of 
appendix D of this part (the organic toxic pollutants):
    (i) For coal mines, a probable total annual production of less than 
100,000 tons per year.
    (ii) For all other applicants, gross total annual sales averaging 
less than $100,000 per year (in second quarter 1980 dollars).
    (9) Used or manufactured toxics. A listing of any toxic pollutant 
which the applicant currently uses or manufactures as an intermediate or 
final product or byproduct. The Director may waive or modify this 
requirement for any applicant if the applicant demonstrates that it 
would be unduly burdensome to identify each toxic pollutant and the 
Director has adequate information to issue the permit.
    (10) [Reserved]
    (11) Biological toxicity tests. An identification of any biological 
toxicity tests which the applicant knows or has reason to believe have 
been made within the last 3 years on any of the applicant's discharges 
or on a receiving water in relation to a discharge.
    (12) Contract analyses. If a contract laboratory or consulting firm 
performed any of the analyses required by paragraph (g)(7) of this 
section, the identity of each laboratory or firm and the analyses 
performed.
    (13) Additional information. In addition to the information reported 
on the application form, applicants shall provide to the Director, at 
his or her request, such other information as the Director may 
reasonably require to assess the discharges of the facility and to 
determine whether to issue an NPDES permit. The additional information 
may include additional quantitative data and bioassays to assess the 
relative toxicity of discharges to aquatic life and requirements to 
determine the cause of the toxicity.
    (h) Application requirements for manufacturing, commercial, mining 
and silvicultural facilities which discharge only non-process 
wastewater. Except for stormwater discharges, all manufacturing, 
commercial, mining and silvicultural dischargers applying for NPDES 
permits which discharge only non-process wastewater not regulated by an 
effluent limitations guideline or new source performance standard shall 
provide the following information to the Director, using application 
forms provided by the Director:
    (1) Outfall location. Outfall number, latitude and longitude to the 
nearest 15 seconds, and the name of the receiving water.
    (2) Discharge date (for new dischargers). Date of expected 
commencement of discharge.
    (3) Type of waste. An identification of the general type of waste 
discharged, or expected to be discharged upon commencement of 
operations, including sanitary wastes, restaurant or cafeteria wastes, 
or noncontact cooling water. An identification of cooling water 
additives (if any) that are used or expected to be used upon 
commencement of operations, along with their

[[Page 176]]

composition if existing composition is available.
    (4) Effluent characteristics. (i) Quantitative data for the 
pollutants or parameters listed below, unless testing is waived by the 
Director. The quantitative data may be data collected over the past 365 
days, if they remain representative of current operations, and must 
include maximum daily value, average daily value, and number of 
measurements taken. The applicant must collect and analyze samples in 
accordance with 40 CFR Part 136. When analysis of pH, temperature, 
residual chlorine, oil and grease, or fecal coliform (including E. 
coli), and Enterococci (previously known as fecal streptococcus) and 
volatile organics is required in paragraphs (h)(4)(i)(A) through (K) of 
this section, grab samples must be collected for those pollutants. For 
all other pollutants, a 24-hour composite sample, using a minimum of 
four (4) grab samples, must be used unless specified otherwise at 40 CFR 
Part 136. For a composite sample, only one analysis of the composite of 
aliquots is required. New dischargers must include estimates for the 
pollutants or parameters listed below instead of actual sampling data, 
along with the source of each estimate. All levels must be reported or 
estimated as concentration and as total mass, except for flow, pH, and 
temperature.
    (A) Biochemical Oxygen Demand (BOD5).
    (B) Total Suspended Solids (TSS).
    (C) Fecal Coliform (if believed present or if sanitary waste is or 
will be discharged).
    (D) Total Residual Chlorine (if chlorine is used).
    (E) Oil and Grease.
    (F) Chemical Oxygen Demand (COD) (if non-contact cooling water is or 
will be discharged).
    (G) Total Organic Carbon (TOC) (if non-contact cooling water is or 
will be discharged).
    (H) Ammonia (as N).
    (I) Discharge Flow.
    (J) pH.
    (K) Temperature (Winter and Summer).
    (ii) The Director may waive the testing and reporting requirements 
for any of the pollutants or flow listed in paragraph (h)(4)(i) of this 
section if the applicant submits a request for such a waiver before or 
with his application which demonstrates that information adequate to 
support issuance of a permit can be obtained through less stringent 
requirements.
    (iii) If the applicant is a new discharger, he must complete and 
submit Item IV of Form 2e (see Sec. 122.21(h)(4)) by providing 
quantitative data in accordance with that section no later than two 
years after commencement of discharge. However, the applicant need not 
complete those portions of Item IV requiring tests which he has already 
performed and reported under the discharge monitoring requirements of 
his NPDES permit.
    (iv) The requirements of parts i and iii of this section that an 
applicant must provide quantitative data or estimates of certain 
pollutants do not apply to pollutants present in a discharge solely as a 
result of their presence in intake water. However, an applicant must 
report such pollutants as present. Net credit may be provided for the 
presence of pollutants in intake water if the requirements of Sec. 
122.45(g) are met.
    (5) Flow. A description of the frequency of flow and duration of any 
seasonal or intermittent discharge (except for stormwater runoff, leaks, 
or spills).
    (6) Treatment system. A brief description of any system used or to 
be used.
    (7) Optional information. Any additional information the applicant 
wishes to be considered, such as influent data for the purpose of 
obtaining ``net'' credits pursuant to Sec. 122.45(g).
    (8) Certification. Signature of certifying official under Sec. 
122.22.
    (i) Application requirements for new and existing concentrated 
animal feeding operations and aquatic animal production facilities. New 
and existing concentrated animal feeding operations (defined in Sec. 
122.23) and concentrated aquatic animal production facilities (defined 
in Sec. 122.24) shall provide the following information to the 
Director, using the application form provided by the Director:
    (1) For concentrated animal feeding operations:
    (i) The name of the owner or operator;

[[Page 177]]

    (ii) The facility location and mailing addresses;
    (iii) Latitude and longitude of the production area (entrance to 
production area);
    (iv) A topographic map of the geographic area in which the CAFO is 
located showing the specific location of the production area, in lieu of 
the requirements of paragraph (f)(7) of this section;
    (v) Specific information about the number and type of animals, 
whether in open confinement or housed under roof (beef cattle, broilers, 
layers, swine weighing 55 pounds or more, swine weighing less than 55 
pounds, mature dairy cows, dairy heifers, veal calves, sheep and lambs, 
horses, ducks, turkeys, other);
    (vi) The type of containment and storage (anaerobic lagoon, roofed 
storage shed, storage ponds, underfloor pits, above ground storage 
tanks, below ground storage tanks, concrete pad, impervious soil pad, 
other) and total capacity for manure, litter, and process wastewater 
storage(tons/gallons);
    (vii) The total number of acres under control of the applicant 
available for land application of manure, litter, or process wastewater;
    (viii) Estimated amounts of manure, litter, and process wastewater 
generated per year (tons/gallons);
    (ix) Estimated amounts of manure, litter and process wastewater 
transferred to other persons per year (tons/gallons); and
    (x) A nutrient management plan that at a minimum satisfies the 
requirements specified in Sec. 122.42(e), including, for all CAFOs 
subject to 40 CFR part 412, subpart C or subpart D, the requirements of 
40 CFR 412.4(c), as applicable.
    (2) For concentrated aquatic animal production facilities:
    (i) The maximum daily and average monthly flow from each outfall.
    (ii) The number of ponds, raceways, and similar structures.
    (iii) The name of the receiving water and the source of intake 
water.
    (iv) For each species of aquatic animals, the total yearly and 
maximum harvestable weight.
    (v) The calendar month of maximum feeding and the total mass of food 
fed during that month.
    (j) Application requirements for new and existing POTWs. Unless 
otherwise indicated, all POTWs and other dischargers designated by the 
Director must provide, at a minimum, the information in this paragraph 
to the Director, using Form 2A or another application form provided by 
the Director. Permit applicants must submit all information available at 
the time of permit application. The information may be provided by 
referencing information previously submitted to the Director. The 
Director may waive any requirement of this paragraph if he or she has 
access to substantially identical information. The Director may also 
waive any requirement of this paragraph that is not of material concern 
for a specific permit, if approved by the Regional Administrator. The 
waiver request to the Regional Administrator must include the State's 
justification for the waiver. A Regional Administrator's disapproval of 
a State's proposed waiver does not constitute final Agency action, but 
does provide notice to the State and permit applicant(s) that EPA may 
object to any State-issued permit issued in the absence of the required 
information.
    (1) Basic application information. All applicants must provide the 
following information:
    (i) Facility information. Name, mailing address, and location of the 
facility for which the application is submitted;
    (ii) Applicant information. Name, mailing address, and telephone 
number of the applicant, and indication as to whether the applicant is 
the facility's owner, operator, or both;
    (iii) Existing environmental permits. Identification of all 
environmental permits or construction approvals received or applied for 
(including dates) under any of the following programs:
    (A) Hazardous Waste Management program under the Resource 
Conservation and Recovery Act (RCRA), Subpart C;
    (B) Underground Injection Control program under the Safe Drinking 
Water Act (SDWA);
    (C) NPDES program under Clean Water Act (CWA);

[[Page 178]]

    (D) Prevention of Significant Deterioration (PSD) program under the 
Clean Air Act;
    (E) Nonattainment program under the Clean Air Act;
    (F) National Emission Standards for Hazardous Air Pollutants 
(NESHAPS) preconstruction approval under the Clean Air Act;
    (G) Ocean dumping permits under the Marine Protection Research and 
Sanctuaries Act;
    (H) Dredge or fill permits under section 404 of the CWA; and
    (I) Other relevant environmental permits, including State permits;
    (iv) Population. The name and population of each municipal entity 
served by the facility, including unincorporated connector districts. 
Indicate whether each municipal entity owns or maintains the collection 
system and whether the collection system is separate sanitary or 
combined storm and sanitary, if known;
    (v) Indian country. Information concerning whether the facility is 
located in Indian country and whether the facility discharges to a 
receiving stream that flows through Indian country;
    (vi) Flow rate. The facility's design flow rate (the wastewater flow 
rate the plant was built to handle), annual average daily flow rate, and 
maximum daily flow rate for each of the previous 3 years;
    (vii) Collection system. Identification of type(s) of collection 
system(s) used by the treatment works (i.e., separate sanitary sewers or 
combined storm and sanitary sewers) and an estimate of the percent of 
sewer line that each type comprises; and
    (viii) Outfalls and other discharge or disposal methods. The 
following information for outfalls to waters of the United States and 
other discharge or disposal methods:
    (A) For effluent discharges to waters of the United States, the 
total number and types of outfalls (e.g, treated effluent, combined 
sewer overflows, bypasses, constructed emergency overflows);
    (B) For wastewater discharged to surface impoundments:
    (1) The location of each surface impoundment;
    (2) The average daily volume discharged to each surface impoundment; 
and
    (3) Whether the discharge is continuous or intermittent;
    (C) For wastewater applied to the land:
    (1) The location of each land application site;
    (2) The size of each land application site, in acres;
    (3) The average daily volume applied to each land application site, 
in gallons per day; and
    (4) Whether land application is continuous or intermittent;
    (D) For effluent sent to another facility for treatment prior to 
discharge:
    (1) The means by which the effluent is transported;
    (2) The name, mailing address, contact person, and phone number of 
the organization transporting the discharge, if the transport is 
provided by a party other than the applicant;
    (3) The name, mailing address, contact person, phone number, and 
NPDES permit number (if any) of the receiving facility; and
    (4) The average daily flow rate from this facility into the 
receiving facility, in millions of gallons per day; and
    (E) For wastewater disposed of in a manner not included in 
paragraphs (j)(1)(viii)(A) through (D) of this section (e.g., 
underground percolation, underground injection):
    (1) A description of the disposal method, including the location and 
size of each disposal site, if applicable;
    (2) The annual average daily volume disposed of by this method, in 
gallons per day; and
    (3) Whether disposal through this method is continuous or 
intermittent;
    (2) Additional Information. All applicants with a design flow 
greater than or equal to 0.1 mgd must provide the following information:
    (i) Inflow and infiltration. The current average daily volume of 
inflow and infiltration, in gallons per day, and steps the facility is 
taking to minimize inflow and infiltration;
    (ii) Topographic map. A topographic map (or other map if a 
topographic map is unavailable) extending at least one mile beyond 
property boundaries of

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the treatment plant, including all unit processes, and showing:
    (A) Treatment plant area and unit processes;
    (B) The major pipes or other structures through which wastewater 
enters the treatment plant and the pipes or other structures through 
which treated wastewater is discharged from the treatment plant. Include 
outfalls from bypass piping, if applicable;
    (C) Each well where fluids from the treatment plant are injected 
underground;
    (D) Wells, springs, and other surface water bodies listed in public 
records or otherwise known to the applicant within \1/4\ mile of the 
treatment works' property boundaries;
    (E) Sewage sludge management facilities (including on-site 
treatment, storage, and disposal sites); and
    (F) Location at which waste classified as hazardous under RCRA 
enters the treatment plant by truck, rail, or dedicated pipe;
    (iii) Process flow diagram or schematic. (A) A diagram showing the 
processes of the treatment plant, including all bypass piping and all 
backup power sources or redundancy in the system. This includes a water 
balance showing all treatment units, including disinfection, and showing 
daily average flow rates at influent and discharge points, and 
approximate daily flow rates between treatment units; and
    (B) A narrative description of the diagram; and
    (iv) Scheduled improvements, schedules of implementation. The 
following information regarding scheduled improvements:
    (A) The outfall number of each outfall affected;
    (B) A narrative description of each required improvement;
    (C) Scheduled or actual dates of completion for the following:
    (1) Commencement of construction;
    (2) Completion of construction;
    (3) Commencement of discharge; and
    (4) Attainment of operational level;
    (D) A description of permits and clearances concerning other Federal 
and/or State requirements;
    (3) Information on effluent discharges. Each applicant must provide 
the following information for each outfall, including bypass points, 
through which effluent is discharged, as applicable:
    (i) Description of outfall. The following information about each 
outfall:
    (A) Outfall number;
    (B) State, county, and city or town in which outfall is located;
    (C) Latitude and longitude, to the nearest second;
    (D) Distance from shore and depth below surface;
    (E) Average daily flow rate, in million gallons per day;
    (F) The following information for each outfall with a seasonal or 
periodic discharge:
    (1) Number of times per year the discharge occurs;
    (2) Duration of each discharge;
    (3) Flow of each discharge; and
    (4) Months in which discharge occurs; and
    (G) Whether the outfall is equipped with a diffuser and the type 
(e.g., high-rate) of diffuser used;
    (ii) Description of receiving waters. The following information (if 
known) for each outfall through which effluent is discharged to waters 
of the United States:
    (A) Name of receiving water;
    (B) Name of watershed/river/stream system and United States Soil 
Conservation Service 14-digit watershed code;
    (C) Name of State Management/River Basin and United States 
Geological Survey 8-digit hydrologic cataloging unit code; and
    (D) Critical flow of receiving stream and total hardness of 
receiving stream at critical low flow (if applicable);
    (iii) Description of treatment. The following information describing 
the treatment provided for discharges from each outfall to waters of the 
United States:
    (A) The highest level of treatment (e.g., primary, equivalent to 
secondary, secondary, advanced, other) that is provided for the 
discharge for each outfall and:
    (1) Design biochemical oxygen demand (BOD5 or 
CBOD5) removal (percent);
    (2) Design suspended solids (SS) removal (percent); and, where 
applicable,
    (3) Design phosphorus (P) removal (percent);

[[Page 180]]

    (4) Design nitrogen (N) removal (percent); and
    (5) Any other removals that an advanced treatment system is designed 
to achieve.
    (B) A description of the type of disinfection used, and whether the 
treatment plant dechlorinates (if disinfection is accomplished through 
chlorination);
    (4) Effluent monitoring for specific parameters. (i) As provided in 
paragraphs (j)(4)(ii) through (x) of this section, all applicants must 
submit to the Director effluent monitoring information for samples taken 
from each outfall through which effluent is discharged to waters of the 
United States, except for CSOs. The Director may allow applicants to 
submit sampling data for only one outfall on a case-by-case basis, where 
the applicant has two or more outfalls with substantially identical 
effluent. The Director may also allow applicants to composite samples 
from one or more outfalls that discharge into the same mixing zone;
    (ii) All applicants must sample and analyze for the pollutants 
listed in Appendix J, Table 1A of this part;
    (iii) All applicants with a design flow greater than or equal to 0.1 
mgd must sample and analyze for the pollutants listed in Appendix J, 
Table 1 of this part. Facilities that do not use chlorine for 
disinfection, do not use chlorine elsewhere in the treatment process, 
and have no reasonable potential to discharge chlorine in their effluent 
may delete chlorine from Table 1;
    (iv) The following applicants must sample and analyze for the 
pollutants listed in Appendix J, Table 2 of this part, and for any other 
pollutants for which the State or EPA have established water quality 
standards applicable to the receiving waters:
    (A) All POTWs with a design flow rate equal to or greater than one 
million gallons per day;
    (B) All POTWs with approved pretreatment programs or POTWs required 
to develop a pretreatment program;
    (C) Other POTWs, as required by the Director;
    (v) The Director should require sampling for additional pollutants, 
as appropriate, on a case-by-case basis;
    (vi) Applicants must provide data from a minimum of three samples 
taken within four and one-half years prior to the date of the permit 
application. Samples must be representative of the seasonal variation in 
the discharge from each outfall. Existing data may be used, if 
available, in lieu of sampling done solely for the purpose of this 
application. The Director should require additional samples, as 
appropriate, on a case-by-case basis.
    (vii) All existing data for pollutants specified in paragraphs 
(j)(4)(ii) through (v) of this section that is collected within four and 
one-half years of the application must be included in the pollutant data 
summary submitted by the applicant. If, however, the applicant samples 
for a specific pollutant on a monthly or more frequent basis, it is only 
necessary, for such pollutant, to summarize all data collected within 
one year of the application.
    (viii) Applicants must collect samples of effluent and analyze such 
samples for pollutants in accordance with analytical methods approved 
under 40 CFR Part 136 unless an alternative is specified in the existing 
NPDES permit. When analysis of pH, temperature, cyanide, total phenols, 
residual chlorine, oil and grease, fecal coliform (including E. coli), 
or volatile organics is required in paragraphs (j)(4)(ii) through (iv) 
of this section, grab samples must be collected for those pollutants. 
For all other pollutants, 24-hour composite samples must be used. For a 
composite sample, only one analysis of the composite of aliquots is 
required.
    (ix) The effluent monitoring data provided must include at least the 
following information for each parameter:
    (A) Maximum daily discharge, expressed as concentration or mass, 
based upon actual sample values;
    (B) Average daily discharge for all samples, expressed as 
concentration or mass, and the number of samples used to obtain this 
value;
    (C) The analytical method used; and
    (D) The threshold level (i.e., method detection limit, minimum 
level, or other designated method endpoints) for the analytical method 
used.
    (x) Unless otherwise required by the Director, metals must be 
reported as total recoverable.

[[Page 181]]

    (5) Effluent monitoring for whole effluent toxicity. (i) All 
applicants must provide an identification of any whole effluent toxicity 
tests conducted during the four and one-half years prior to the date of 
the application on any of the applicant's discharges or on any receiving 
water near the discharge.
    (ii) As provided in paragraphs (j)(5)(iii)-(ix) of this section, the 
following applicants must submit to the Director the results of valid 
whole effluent toxicity tests for acute or chronic toxicity for samples 
taken from each outfall through which effluent is discharged to surface 
waters, except for combined sewer overflows:
    (A) All POTWs with design flow rates greater than or equal to one 
million gallons per day;
    (B) All POTWs with approved pretreatment programs or POTWs required 
to develop a pretreatment program;
    (C) Other POTWs, as required by the Director, based on consideration 
of the following factors:
    (1) The variability of the pollutants or pollutant parameters in the 
POTW effluent (based on chemical-specific information, the type of 
treatment plant, and types of industrial contributors);
    (2) The ratio of effluent flow to receiving stream flow;
    (3) Existing controls on point or non-point sources, including total 
maximum daily load calculations for the receiving stream segment and the 
relative contribution of the POTW;
    (4) Receiving stream characteristics, including possible or known 
water quality impairment, and whether the POTW discharges to a coastal 
water, one of the Great Lakes, or a water designated as an outstanding 
natural resource water; or
    (5) Other considerations (including, but not limited to, the history 
of toxic impacts and compliance problems at the POTW) that the Director 
determines could cause or contribute to adverse water quality impacts.
    (iii) Where the POTW has two or more outfalls with substantially 
identical effluent discharging to the same receiving stream segment, the 
Director may allow applicants to submit whole effluent toxicity data for 
only one outfall on a case-by-case basis. The Director may also allow 
applicants to composite samples from one or more outfalls that discharge 
into the same mixing zone.
    (iv) Each applicant required to perform whole effluent toxicity 
testing pursuant to paragraph (j)(5)(ii) of this section must provide:
    (A) Results of a minimum of four quarterly tests for a year, from 
the year preceding the permit application; or
    (B) Results from four tests performed at least annually in the four 
and one half year period prior to the application, provided the results 
show no appreciable toxicity using a safety factor determined by the 
permitting authority.
    (v) Applicants must conduct tests with multiple species (no less 
than two species; e.g., fish, invertebrate, plant), and test for acute 
or chronic toxicity, depending on the range of receiving water dilution. 
EPA recommends that applicants conduct acute or chronic testing based on 
the following dilutions:
    (A) Acute toxicity testing if the dilution of the effluent is 
greater than 1000:1 at the edge of the mixing zone;
    (B) Acute or chronic toxicity testing if the dilution of the 
effluent is between 100:1 and 1000:1 at the edge of the mixing zone. 
Acute testing may be more appropriate at the higher end of this range 
(1000:1), and chronic testing may be more appropriate at the lower end 
of this range (100:1); and
    (C) Chronic testing if the dilution of the effluent is less than 
100:1 at the edge of the mixing zone.
    (vi) Each applicant required to perform whole effluent toxicity 
testing pursuant to paragraph (j)(5)(ii) of this section must provide 
the number of chronic or acute whole effluent toxicity tests that have 
been conducted since the last permit reissuance.
    (vii) Applicants must provide the results using the form provided by 
the Director, or test summaries if available and comprehensive, for each 
whole effluent toxicity test conducted pursuant to paragraph (j)(5)(ii) 
of this section for which such information has not been reported 
previously to the Director.

[[Page 182]]

    (viii) Whole effluent toxicity testing conducted pursuant to 
paragraph (j)(5)(ii) of this section must be conducted using methods 
approved under 40 CFR part 136. West coast facilities in Washington, 
Oregon, California, Alaska, Hawaii, and the Pacific Territories are 
exempted from 40 CFR part 136 chronic methods and must use alternative 
guidance as directed by the permitting authority.
    (ix) For whole effluent toxicity data submitted to the Director 
within four and one-half years prior to the date of the application, 
applicants must provide the dates on which the data were submitted and a 
summary of the results.
    (x) Each POTW required to perform whole effluent toxicity testing 
pursuant to paragraph (j)(5)(ii) of this section must provide any 
information on the cause of toxicity and written details of any toxicity 
reduction evaluation conducted, if any whole effluent toxicity test 
conducted within the past four and one-half years revealed toxicity.
    (6) Industrial discharges. Applicants must submit the following 
information about industrial discharges to the POTW:
    (i) Number of significant industrial users (SIUs) and categorical 
industrial users (CIUs) discharging to the POTW; and
    (ii) POTWs with one or more SIUs shall provide the following 
information for each SIU, as defined at 40 CFR 403.3(v), that discharges 
to the POTW:
    (A) Name and mailing address;
    (B) Description of all industrial processes that affect or 
contribute to the SIU's discharge;
    (C) Principal products and raw materials of the SIU that affect or 
contribute to the SIU's discharge;
    (D) Average daily volume of wastewater discharged, indicating the 
amount attributable to process flow and non-process flow;
    (E) Whether the SIU is subject to local limits;
    (F) Whether the SIU is subject to categorical standards, and if so, 
under which category(ies) and subcategory(ies); and
    (G) Whether any problems at the POTW (e.g., upsets, pass through, 
interference) have been attributed to the SIU in the past four and one-
half years.
    (iii) The information required in paragraphs (j)(6)(i) and (ii) of 
this section may be waived by the Director for POTWs with pretreatment 
programs if the applicant has submitted either of the following that 
contain information substantially identical to that required in 
paragraphs (j)(6)(i) and (ii) of this section.
    (A) An annual report submitted within one year of the application; 
or
    (B) A pretreatment program;
    (7) Discharges from hazardous waste generators and from waste 
cleanup or remediation sites. POTWs receiving Resource Conservation and 
Recovery Act (RCRA), Comprehensive Environmental Response, Compensation, 
and Liability Act (CERCLA), or RCRA Corrective Action wastes or wastes 
generated at another type of cleanup or remediation site must provide 
the following information:
    (i) If the POTW receives, or has been notified that it will receive, 
by truck, rail, or dedicated pipe any wastes that are regulated as RCRA 
hazardous wastes pursuant to 40 CFR part 261, the applicant must report 
the following:
    (A) The method by which the waste is received (i.e., whether by 
truck, rail, or dedicated pipe); and
    (B) The hazardous waste number and amount received annually of each 
hazardous waste;
    (ii) If the POTW receives, or has been notified that it will 
receive, wastewaters that originate from remedial activities, including 
those undertaken pursuant to CERCLA and sections 3004(u) or 3008(h) of 
RCRA, the applicant must report the following:
    (A) The identity and description of the site(s) or facility(ies) at 
which the wastewater originates;
    (B) The identities of the wastewater's hazardous constituents, as 
listed in Appendix VIII of part 261 of this chapter; if known; and
    (C) The extent of treatment, if any, the wastewater receives or will 
receive before entering the POTW;
    (iii) Applicants are exempt from the requirements of paragraph 
(j)(7)(ii) of this section if they receive no more than fifteen 
kilograms per month of hazardous wastes, unless the wastes are

[[Page 183]]

acute hazardous wastes as specified in 40 CFR 261.30(d) and 261.33(e).
    (8) Combined sewer overflows. Each applicant with combined sewer 
systems must provide the following information:
    (i) Combined sewer system information. The following information 
regarding the combined sewer system:
    (A) System map. A map indicating the location of the following:
    (1) All CSO discharge points;
    (2) Sensitive use areas potentially affected by CSOs (e.g., beaches, 
drinking water supplies, shellfish beds, sensitive aquatic ecosystems, 
and outstanding national resource waters); and
    (3) Waters supporting threatened and endangered species potentially 
affected by CSOs; and
    (B) System diagram. A diagram of the combined sewer collection 
system that includes the following information:
    (1) The location of major sewer trunk lines, both combined and 
separate sanitary;
    (2) The locations of points where separate sanitary sewers feed into 
the combined sewer system;
    (3) In-line and off-line storage structures;
    (4) The locations of flow-regulating devices; and
    (5) The locations of pump stations;
    (ii) Information on CSO outfalls. The following information for each 
CSO discharge point covered by the permit application:
    (A) Description of outfall. The following information on each 
outfall:
    (1) Outfall number;
    (2) State, county, and city or town in which outfall is located;
    (3) Latitude and longitude, to the nearest second; and
    (4) Distance from shore and depth below surface;
    (5) Whether the applicant monitored any of the following in the past 
year for this CSO:
    (i) Rainfall;
    (ii) CSO flow volume;
    (iii) CSO pollutant concentrations;
    (iv) Receiving water quality;
    (v) CSO frequency; and
    (6) The number of storm events monitored in the past year;
    (B) CSO events. The following information about CSO overflows from 
each outfall:
    (1) The number of events in the past year;
    (2) The average duration per event, if available;
    (3) The average volume per CSO event, if available; and
    (4) The minimum rainfall that caused a CSO event, if available, in 
the last year;
    (C) Description of receiving waters. The following information about 
receiving waters:
    (1) Name of receiving water;
    (2) Name of watershed/stream system and the United States Soil 
Conservation Service watershed (14-digit) code (if known); and
    (3) Name of State Management/River Basin and the United States 
Geological Survey hydrologic cataloging unit (8-digit) code (if known); 
and
    (D) CSO operations. A description of any known water quality impacts 
on the receiving water caused by the CSO (e.g., permanent or 
intermittent beach closings, permanent or intermittent shellfish bed 
closings, fish kills, fish advisories, other recreational loss, or 
exceedance of any applicable State water quality standard);
    (9) Contractors. All applicants must provide the name, mailing 
address, telephone number, and responsibilities of all contractors 
responsible for any operational or maintenance aspects of the facility; 
and
    (10) Signature. All applications must be signed by a certifying 
official in compliance with Sec. 122.22.
    (k) Application requirements for new sources and new discharges. New 
manufacturing, commercial, mining and silvicultural dischargers applying 
for NPDES permits (except for new discharges of facilities subject to 
the requirements of paragraph (h) of this section or new discharges of 
storm water associated with industrial activity which are subject to the 
requirements of Sec. 122.26(c)(1) and this section (except as provided 
by Sec. 122.26(c)(1)(ii)) shall provide the following information to 
the Director, using the application forms provided by the Director:
    (1) Expected outfall location. The latitude and longitude to the 
nearest 15

[[Page 184]]

seconds and the name of the receiving water.
    (2) Discharge dates. The expected date of commencement of discharge.
    (3) Flows, sources of pollution, and treatment technologies--(i) 
Expected treatment of wastewater. Description of the treatment that the 
wastewater will receive, along with all operations contributing 
wastewater to the effluent, average flow contributed by each operation, 
and the ultimate disposal of any solid or liquid wastes not discharged.
    (ii) Line drawing. A line drawing of the water flow through the 
facility with a water balance as described in Sec. 122.21(g)(2).
    (iii) Intermittent flows. If any of the expected discharges will be 
intermittent or seasonal, a description of the frequency, duration and 
maximum daily flow rate of each discharge occurrence (except for 
stormwater runoff, spillage, or leaks).
    (4) Production. If a new source performance standard promulgated 
under section 306 of CWA or an effluent limitation guideline applies to 
the applicant and is expressed in terms of production (or other measure 
of operation), a reasonable measure of the applicant's expected actual 
production reported in the units used in the applicable effluent 
guideline or new source performance standard as required by Sec. 
122.45(b)(2) for each of the first three years. Alternative estimates 
may also be submitted if production is likely to vary.
    (5) Effluent characteristics. The requirements in paragraphs 
(h)(4)(i), (ii), and (iii) of this section that an applicant must 
provide estimates of certain pollutants expected to be present do not 
apply to pollutants present in a discharge solely as a result of their 
presence in intake water; however, an applicant must report such 
pollutants as present. Net credits may be provided for the presence of 
pollutants in intake water if the requirements of Sec. 122.45(g) are 
met. All levels (except for discharge flow, temperature, and pH) must be 
estimated as concentration and as total mass.
    (i) Each applicant must report estimated daily maximum, daily 
average, and source of information for each outfall for the following 
pollutants or parameters. The Director may waive the reporting 
requirements for any of these pollutants and parameters if the applicant 
submits a request for such a waiver before or with his application which 
demonstrates that information adequate to support issuance of the permit 
can be obtained through less stringent reporting requirements.
    (A) Biochemical Oxygen Demand (BOD).
    (B) Chemical Oxygen Demand (COD).
    (C) Total Organic Carbon (TOC).
    (D) Total Suspended Solids (TSS).
    (E) Flow.
    (F) Ammonia (as N).
    (G) Temperature (winter and summer).
    (H) pH.
    (ii) Each applicant must report estimated daily maximum, daily 
average, and source of information for each outfall for the following 
pollutants, if the applicant knows or has reason to believe they will be 
present or if they are limited by an effluent limitation guideline or 
new source performance standard either directly or indirectly through 
limitations on an indicator pollutant: all pollutants in table IV of 
appendix D of part 122 (certain conventional and nonconventional 
pollutants).
    (iii) Each applicant must report estimated daily maximum, daily 
average and source of information for the following pollutants if he 
knows or has reason to believe that they will be present in the 
discharges from any outfall:
    (A) The pollutants listed in table III of appendix D (the toxic 
metals, in the discharge from any outfall: Total cyanide, and total 
phenols);
    (B) The organic toxic pollutants in table II of appendix D (except 
bis (chloromethyl) ether, dichlorofluoromethane and 
trichlorofluoromethane). This requirement is waived for applicants with 
expected gross sales of less than $100,000 per year for the next three 
years, and for coal mines with expected average production of less than 
100,000 tons of coal per year.
    (iv) The applicant is required to report that 2,3,7,8 
Tetrachlorodibenzo-P-Dioxin (TCDD) may be discharged if he

[[Page 185]]

uses or manufactures one of the following compounds, or if he knows or 
has reason to believe that TCDD will or may be present in an effluent:
    (A) 2,4,5-trichlorophenoxy acetic acid (2,4,5-T) (CAS 93-
76-5);
    (B) 2-(2,4,5-trichlorophenoxy) propanoic acid (Silvex, 2,4,5-TP) 
(CAS 93-72-1);
    (C) 2-(2,4,5-trichlorophenoxy) ethyl 2,2-dichloropropionate (Erbon) 
(CAS 136-25-4);
    (D) 0,0-dimethyl 0-(2,4,5-trichlorophenyl) phosphorothioate (Ronnel) 
(CAS 299-84-3);
    (E) 2,4,5-trichlorophenol (TCP) (CAS 95-95-4); or
    (F) Hexachlorophene (HCP) (CAS 70-30-4);
    (v) Each applicant must report any pollutants listed in table V of 
appendix D (certain hazardous substances) if he believes they will be 
present in any outfall (no quantitative estimates are required unless 
they are already available).
    (vi) No later than two years after the commencement of discharge 
from the proposed facility, the applicant is required to complete and 
submit Items V and VI of NPDES application Form 2c (see Sec. 
122.21(g)). However, the applicant need not complete those portions of 
Item V requiring tests which he has already performed and reported under 
the discharge monitoring requirements of his NPDES permit.
    (6) Engineering Report. Each applicant must report the existence of 
any technical evaluation concerning his wastewater treatment, along with 
the name and location of similar plants of which he has knowledge.
    (7) Other information. Any optional information the permittee wishes 
to have considered.
    (8) Certification. Signature of certifying official under Sec. 
122.22.
    (l) Special provisions for applications from new sources. (1) The 
owner or operator of any facility which may be a new source (as defined 
in Sec. 122.2 ) and which is located in a State without an approved 
NPDES program must comply with the provisions of this paragraph (l)(1).
    (2)(i) Before beginning any on-site construction as defined in Sec. 
122.29, the owner or operator of any facility which may be a new source 
must submit information to the Regional Administrator so that he or she 
can determine if the facility is a new source. The Regional 
Administrator may request any additional information needed to determine 
whether the facility is a new source.
    (ii) The Regional Administrator shall make an initial determination 
whether the facility is a new source within 30 days of receiving all 
necessary information under paragraph (l)(2)(i) of this section.
    (3) The Regional Administrator shall issue a public notice in 
accordance with Sec. 124.10 of this chapter of the new source 
determination under paragraph (l)(2) of this section. If the Regional 
Administrator has determined that the facility is a new source, the 
notice shall state that the applicant must comply with the environmental 
review requirements of 40 CFR 6.600 through 6.607.
    (4) Any interested party may challenge the Regional Administrator's 
initial new source determination by requesting review of the 
determination under Sec. 124.19 of this chapter within 30 days of the 
public notice of the initial determination. If all interested parties 
agree, the Environmental Appeals Board may defer review until after a 
final permit decision is made, and consolidate review of the 
determination with any review of the permit decision.
    (m) Variance requests by non-POTWs. A discharger which is not a 
publicly owned treatment works (POTW) may request a variance from 
otherwise applicable effluent limitations under any of the following 
statutory or regulatory provisions within the times specified in this 
paragraph:
    (1) Fundamentally different factors. (i) A request for a variance 
based on the presence of ``fundamentally different factors'' from those 
on which the effluent limitations guideline was based shall be filed as 
follows:
    (A) For a request from best practicable control technology currently 
available (BPT), by the close of the public comment period under Sec. 
124.10.
    (B) For a request from best available technology economically 
achievable

[[Page 186]]

(BAT) and/or best conventional pollutant control technology (BCT), by no 
later than:
    (1) July 3, 1989, for a request based on an effluent limitation 
guideline promulgated before February 4, 1987, to the extent July 3, 
1989 is not later than that provided under previously promulgated 
regulations; or
    (2) 180 days after the date on which an effluent limitation 
guideline is published in the Federal Register for a request based on an 
effluent limitation guideline promulgated on or after February 4, 1987.
    (ii) The request shall explain how the requirements of the 
applicable regulatory and/or statutory criteria have been met.
    (2) Non-conventional pollutants. A request for a variance from the 
BAT requirements for CWA section 301(b)(2)(F) pollutants (commonly 
called ``non-conventional'' pollutants) pursuant to section 301(c) of 
CWA because of the economic capability of the owner or operator, or 
pursuant to section 301(g) of the CWA (provided however that a Sec. 
301(g) variance may only be requested for ammonia; chlorine; color; 
iron; total phenols (4AAP) (when determined by the Administrator to be a 
pollutant covered by section 301(b)(2)(F)) and any other pollutant which 
the Administrator lists under section 301(g)(4) of the CWA) must be made 
as follows:
    (i) For those requests for a variance from an effluent limitation 
based upon an effluent limitation guideline by:
    (A) Submitting an initial request to the Regional Administrator, as 
well as to the State Director if applicable, stating the name of the 
discharger, the permit number, the outfall number(s), the applicable 
effluent guideline, and whether the discharger is requesting a section 
301(c) or section 301(g) modification or both. This request must have 
been filed not later than:
    (1) September 25, 1978, for a pollutant which is controlled by a BAT 
effluent limitation guideline promulgated before December 27, 1977; or
    (2) 270 days after promulgation of an applicable effluent limitation 
guideline for guidelines promulgated after December 27, 1977; and
    (B) Submitting a completed request no later than the close of the 
public comment period under Sec. 124.10 demonstrating that the 
requirements of Sec. 124.13 and the applicable requirements of part 125 
have been met. Notwithstanding this provision, the complete application 
for a request under section 301(g) shall be filed 180 days before EPA 
must make a decision (unless the Regional Division Director establishes 
a shorter or longer period).
    (ii) For those requests for a variance from effluent limitations not 
based on effluent limitation guidelines, the request need only comply 
with paragraph (m)(2)(i)(B) of this section and need not be preceded by 
an initial request under paragraph (m)(2)(i)(A) of this section.
    (3)-(4) [Reserved]
    (5) Water quality related effluent limitations. A modification under 
section 302(b)(2) of requirements under section 302(a) for achieving 
water quality related effluent limitations may be requested no later 
than the close of the public comment period under Sec. 124.10 on the 
permit from which the modification is sought.
    (6) Thermal discharges. A variance under CWA section 316(a) for the 
thermal component of any discharge must be filed with a timely 
application for a permit under this section, except that if thermal 
effluent limitations are established under CWA section 402(a)(1) or are 
based on water quality standards the request for a variance may be filed 
by the close of the public comment period under Sec. 124.10. A copy of 
the request as required under 40 CFR part 125, subpart H, shall be sent 
simultaneously to the appropriate State or interstate certifying agency 
as required under 40 CFR part 125. (See Sec. 124.65 for special 
procedures for section 316(a) thermal variances.)
    (n) Variance requests by POTWs. A discharger which is a publicly 
owned treatment works (POTW) may request a variance from otherwise 
applicable effluent limitations under any of the following statutory 
provisions as specified in this paragraph:
    (1) Discharges into marine waters. A request for a modification 
under CWA section 301(h) of requirements of CWA section 301(b)(1)(B) for 
discharges into marine waters must be filed in accordance with the 
requirements of 40 CFR part 125, subpart G.

[[Page 187]]

    (2) [Reserved]
    (3) Water quality based effluent limitation. A modification under 
CWA section 302(b)(2) of the requirements under section 302(a) for 
achieving water quality based effluent limitations shall be requested no 
later than the close of the public comment period under Sec. 124.10 on 
the permit from which the modification is sought.
    (o) Expedited variance procedures and time extensions. (1) 
Notwithstanding the time requirements in paragraphs (m) and (n) of this 
section, the Director may notify a permit applicant before a draft 
permit is issued under Sec. 124.6 that the draft permit will likely 
contain limitations which are eligible for variances. In the notice the 
Director may require the applicant as a condition of consideration of 
any potential variance request to submit a request explaining how the 
requirements of part 125 applicable to the variance have been met and 
may require its submission within a specified reasonable time after 
receipt of the notice. The notice may be sent before the permit 
application has been submitted. The draft or final permit may contain 
the alternative limitations which may become effective upon final grant 
of the variance.
    (2) A discharger who cannot file a timely complete request required 
under paragraph (m)(2)(i)(B) or (m)(2)(ii) of this section may request 
an extension. The extension may be granted or denied at the discretion 
of the Director. Extensions shall be no more than 6 months in duration.
    (p) Recordkeeping. Except for information required by paragraph 
(d)(3)(ii) of this section, which shall be retained for a period of at 
least five years from the date the application is signed (or longer as 
required by 40 CFR part 503), applicants shall keep records of all data 
used to complete permit applications and any supplemental information 
submitted under this section for a period of at least 3 years from the 
date the application is signed.
    (q) Sewage sludge management. All TWTDS subject to paragraph 
(c)(2)(i) of this section must provide the information in this paragraph 
to the Director, using Form 2S or another application form approved by 
the Director. New applicants must submit all information available at 
the time of permit application. The information may be provided by 
referencing information previously submitted to the Director. The 
Director may waive any requirement of this paragraph if he or she has 
access to substantially identical information. The Director may also 
waive any requirement of this paragraph that is not of material concern 
for a specific permit, if approved by the Regional Administrator. The 
waiver request to the Regional Administrator must include the State's 
justification for the waiver. A Regional Administrator's disapproval of 
a State's proposed waiver does not constitute final Agency action, but 
does provide notice to the State and permit applicant(s) that EPA may 
object to any State-issued permit issued in the absence of the required 
information.
    (1) Facility information. All applicants must submit the following 
information:
    (i) The name, mailing address, and location of the TWTDS for which 
the application is submitted;
    (ii) Whether the facility is a Class I Sludge Management Facility;
    (iii) The design flow rate (in million gallons per day);
    (iv) The total population served; and
    (v) The TWTDS's status as Federal, State, private, public, or other 
entity;
    (2) Applicant information. All applicants must submit the following 
information:
    (i) The name, mailing address, and telephone number of the 
applicant; and
    (ii) Indication whether the applicant is the owner, operator, or 
both;
    (3) Permit information. All applicants must submit the facility's 
NPDES permit number, if applicable, and a listing of all other Federal, 
State, and local permits or construction approvals received or applied 
for under any of the following programs:
    (i) Hazardous Waste Management program under the Resource 
Conservation and Recovery Act (RCRA);
    (ii) UIC program under the Safe Drinking Water Act (SDWA);
    (iii) NPDES program under the Clean Water Act (CWA);

[[Page 188]]

    (iv) Prevention of Significant Deterioration (PSD) program under the 
Clean Air Act;
    (v) Nonattainment program under the Clean Air Act;
    (vi) National Emission Standards for Hazardous Air Pollutants 
(NESHAPS) preconstruction approval under the Clean Air Act;
    (vii) Dredge or fill permits under section 404 of CWA;
    (viii) Other relevant environmental permits, including State or 
local permits;
    (4) Indian country. All applicants must identify any generation, 
treatment, storage, land application, or disposal of sewage sludge that 
occurs in Indian country;
    (5) Topographic map. All applicants must submit a topographic map 
(or other map if a topographic map is unavailable) extending one mile 
beyond property boundaries of the facility and showing the following 
information:
    (i) All sewage sludge management facilities, including on-site 
treatment, storage, and disposal sites; and
    (ii) Wells, springs, and other surface water bodies that are within 
\1/4\ mile of the property boundaries and listed in public records or 
otherwise known to the applicant;
    (6) Sewage sludge handling. All applicants must submit a line 
drawing and/or a narrative description that identifies all sewage sludge 
management practices employed during the term of the permit, including 
all units used for collecting, dewatering, storing, or treating sewage 
sludge, the destination(s) of all liquids and solids leaving each such 
unit, and all processes used for pathogen reduction and vector 
attraction reduction;
    (7) Sewage sludge quality. The applicant must submit sewage sludge 
monitoring data for the pollutants for which limits in sewage sludge 
have been established in 40 CFR part 503 for the applicant's use or 
disposal practices on the date of permit application.
    (i) The Director may require sampling for additional pollutants, as 
appropriate, on a case-by-case basis;
    (ii) Applicants must provide data from a minimum of three samples 
taken within four and one-half years prior to the date of the permit 
application. Samples must be representative of the sewage sludge and 
should be taken at least one month apart. Existing data may be used in 
lieu of sampling done solely for the purpose of this application;
    (iii) Applicants must collect and analyze samples in accordance with 
analytical methods approved under SW-846 unless an alternative has been 
specified in an existing sewage sludge permit;
    (iv) The monitoring data provided must include at least the 
following information for each parameter:
    (A) Average monthly concentration for all samples (mg/kg dry 
weight), based upon actual sample values;
    (B) The analytical method used; and
    (C) The method detection level.
    (8) Preparation of sewage sludge. If the applicant is a ``person who 
prepares'' sewage sludge, as defined at 40 CFR 503.9(r), the applicant 
must provide the following information:
    (i) If the applicant's facility generates sewage sludge, the total 
dry metric tons per 365-day period generated at the facility;
    (ii) If the applicant's facility receives sewage sludge from another 
facility, the following information for each facility from which sewage 
sludge is received:
    (A) The name, mailing address, and location of the other facility;
    (B) The total dry metric tons per 365-day period received from the 
other facility; and
    (C) A description of any treatment processes occurring at the other 
facility, including blending activities and treatment to reduce 
pathogens or vector attraction characteristics;
    (iii) If the applicant's facility changes the quality of sewage 
sludge through blending, treatment, or other activities, the following 
information:
    (A) Whether the Class A pathogen reduction requirements in 40 CFR 
503.32(a) or the Class B pathogen reduction requirements in 40 CFR 
503.32(b) are met, and a description of any treatment processes used to 
reduce pathogens in sewage sludge;
    (B) Whether any of the vector attraction reduction options of 40 CFR 
503.33(b)(1) through (b)(8) are met, and

[[Page 189]]

a description of any treatment processes used to reduce vector 
attraction properties in sewage sludge; and
    (C) A description of any other blending, treatment, or other 
activities that change the quality of sewage sludge;
    (iv) If sewage sludge from the applicant's facility meets the 
ceiling concentrations in 40 CFR 503.13(b)(1), the pollutant 
concentrations in Sec. 503.13(b)(3), the Class A pathogen requirements 
in Sec. 503.32(a), and one of the vector attraction reduction 
requirements in Sec. 503.33(b)(1) through (b)(8), and if the sewage 
sludge is applied to the land, the applicant must provide the total dry 
metric tons per 365-day period of sewage sludge subject to this 
paragraph that is applied to the land;
    (v) If sewage sludge from the applicant's facility is sold or given 
away in a bag or other container for application to the land, and the 
sewage sludge is not subject to paragraph (q)(8)(iv) of this section, 
the applicant must provide the following information:
    (A) The total dry metric tons per 365-day period of sewage sludge 
subject to this paragraph that is sold or given away in a bag or other 
container for application to the land; and
    (B) A copy of all labels or notices that accompany the sewage sludge 
being sold or given away;
    (vi) If sewage sludge from the applicant's facility is provided to 
another ``person who prepares,'' as defined at 40 CFR 503.9(r), and the 
sewage sludge is not subject to paragraph (q)(8)(iv) of this section, 
the applicant must provide the following information for each facility 
receiving the sewage sludge:
    (A) The name and mailing address of the receiving facility;
    (B) The total dry metric tons per 365-day period of sewage sludge 
subject to this paragraph that the applicant provides to the receiving 
facility;
    (C) A description of any treatment processes occurring at the 
receiving facility, including blending activities and treatment to 
reduce pathogens or vector attraction characteristic;
    (D) A copy of the notice and necessary information that the 
applicant is required to provide the receiving facility under 40 CFR 
503.12(g); and
    (E) If the receiving facility places sewage sludge in bags or 
containers for sale or give-away to application to the land, a copy of 
any labels or notices that accompany the sewage sludge;
    (9) Land application of bulk sewage sludge. If sewage sludge from 
the applicant's facility is applied to the land in bulk form, and is not 
subject to paragraphs (q)(8)(iv), (v), or (vi) of this section, the 
applicant must provide the following information:
    (i) The total dry metric tons per 365-day period of sewage sludge 
subject to this paragraph that is applied to the land;
    (ii) If any land application sites are located in States other than 
the State where the sewage sludge is prepared, a description of how the 
applicant will notify the permitting authority for the State(s) where 
the land application sites are located;
    (iii) The following information for each land application site that 
has been identified at the time of permit application:
    (A) The name (if any), and location for the land application site;
    (B) The site's latitude and longitude to the nearest second, and 
method of determination;
    (C) A topographic map (or other map if a topographic map is 
unavailable) that shows the site's location;
    (D) The name, mailing address, and telephone number of the site 
owner, if different from the applicant;
    (E) The name, mailing address, and telephone number of the person 
who applies sewage sludge to the site, if different from the applicant;
    (F) Whether the site is agricultural land, forest, a public contact 
site, or a reclamation site, as such site types are defined under 40 CFR 
503.11;
    (G) The type of vegetation grown on the site, if known, and the 
nitrogen requirement for this vegetation;
    (H) Whether either of the vector attraction reduction options of 40 
CFR 503.33(b)(9) or (b)(10) is met at the site, and a description of any 
procedures employed at the time of use to reduce vector attraction 
properties in sewage sludge; and
    (I) Other information that describes how the site will be managed, 
as specified by the permitting authority.
    (iv) The following information for each land application site that 
has

[[Page 190]]

been identified at the time of permit application, if the applicant 
intends to apply bulk sewage sludge subject to the cumulative pollutant 
loading rates in 40 CFR 503.13(b)(2) to the site:
    (A) Whether the applicant has contacted the permitting authority in 
the State where the bulk sewage sludge subject to Sec. 503.13(b)(2) 
will be applied, to ascertain whether bulk sewage sludge subject to 
Sec. 503.13(b)(2) has been applied to the site on or since July 20, 
1993, and if so, the name of the permitting authority and the name and 
phone number of a contact person at the permitting authority;
    (B) Identification of facilities other than the applicant's facility 
that have sent, or are sending, sewage sludge subject to the cumulative 
pollutant loading rates in Sec. 503.13(b)(2) to the site since July 20, 
1993, if, based on the inquiry in paragraph (q)(iv)(A), bulk sewage 
sludge subject to cumulative pollutant loading rates in Sec. 
503.13(b)(2) has been applied to the site since July 20, 1993;
    (v) If not all land application sites have been identified at the 
time of permit application, the applicant must submit a land application 
plan that, at a minimum:
    (A) Describes the geographical area covered by the plan;
    (B) Identifies the site selection criteria;
    (C) Describes how the site(s) will be managed;
    (D) Provides for advance notice to the permit authority of specific 
land application sites and reasonable time for the permit authority to 
object prior to land application of the sewage sludge; and
    (E) Provides for advance public notice of land application sites in 
the manner prescribed by State and local law. When State or local law 
does not require advance public notice, it must be provided in a manner 
reasonably calculated to apprize the general public of the planned land 
application.
    (10) Surface disposal. If sewage sludge from the applicant's 
facility is placed on a surface disposal site, the applicant must 
provide the following information:
    (i) The total dry metric tons of sewage sludge from the applicant's 
facility that is placed on surface disposal sites per 365-day period;
    (ii) The following information for each surface disposal site 
receiving sewage sludge from the applicant's facility that the applicant 
does not own or operate:
    (A) The site name or number, contact person, mailing address, and 
telephone number for the surface disposal site; and
    (B) The total dry metric tons from the applicant's facility per 365-
day period placed on the surface disposal site;
    (iii) The following information for each active sewage sludge unit 
at each surface disposal site that the applicant owns or operates:
    (A) The name or number and the location of the active sewage sludge 
unit;
    (B) The unit's latitude and longitude to the nearest second, and 
method of determination;
    (C) If not already provided, a topographic map (or other map if a 
topographic map is unavailable) that shows the unit's location;
    (D) The total dry metric tons placed on the active sewage sludge 
unit per 365-day period;
    (E) The total dry metric tons placed on the active sewage sludge 
unit over the life of the unit;
    (F) A description of any liner for the active sewage sludge unit, 
including whether it has a maximum permeability of 1 x 10-7 
cm/sec;
    (G) A description of any leachate collection system for the active 
sewage sludge unit, including the method used for leachate disposal, and 
any Federal, State, and local permit number(s) for leachate disposal;
    (H) If the active sewage sludge unit is less than 150 meters from 
the property line of the surface disposal site, the actual distance from 
the unit boundary to the site property line;
    (I) The remaining capacity (dry metric tons) for the active sewage 
sludge unit;
    (J) The date on which the active sewage sludge unit is expected to 
close, if such a date has been identified;
    (K) The following information for any other facility that sends 
sewage sludge to the active sewage sludge unit:

[[Page 191]]

    (1) The name, contact person, and mailing address of the facility; 
and
    (2) Available information regarding the quality of the sewage sludge 
received from the facility, including any treatment at the facility to 
reduce pathogens or vector attraction characteristics;
    (L) Whether any of the vector attraction reduction options of 40 CFR 
503.33(b)(9) through (b)(11) is met at the active sewage sludge unit, 
and a description of any procedures employed at the time of disposal to 
reduce vector attraction properties in sewage sludge;
    (M) The following information, as applicable to any ground-water 
monitoring occurring at the active sewage sludge unit:
    (1) A description of any ground-water monitoring occurring at the 
active sewage sludge unit;
    (2) Any available ground-water monitoring data, with a description 
of the well locations and approximate depth to ground water;
    (3) A copy of any ground-water monitoring plan that has been 
prepared for the active sewage sludge unit;
    (4) A copy of any certification that has been obtained from a 
qualified ground-water scientist that the aquifer has not been 
contaminated; and
    (N) If site-specific pollutant limits are being sought for the 
sewage sludge placed on this active sewage sludge unit, information to 
support such a request;
    (11) Incineration. If sewage sludge from the applicant's facility is 
fired in a sewage sludge incinerator, the applicant must provide the 
following information:
    (i) The total dry metric tons of sewage sludge from the applicant's 
facility that is fired in sewage sludge incinerators per 365-day period;
    (ii) The following information for each sewage sludge incinerator 
firing the applicant's sewage sludge that the applicant does not own or 
operate:
    (A) The name and/or number, contact person, mailing address, and 
telephone number of the sewage sludge incinerator; and
    (B) The total dry metric tons from the applicant's facility per 365-
day period fired in the sewage sludge incinerator;
    (iii) The following information for each sewage sludge incinerator 
that the applicant owns or operates:
    (A) The name and/or number and the location of the sewage sludge 
incinerator;
    (B) The incinerator's latitude and longitude to the nearest second, 
and method of determination;
    (C) The total dry metric tons per 365-day period fired in the sewage 
sludge incinerator;
    (D) Information, test data, and documentation of ongoing operating 
parameters indicating that compliance with the National Emission 
Standard for Beryllium in 40 CFR part 61 will be achieved;
    (E) Information, test data, and documentation of ongoing operating 
parameters indicating that compliance with the National Emission 
Standard for Mercury in 40 CFR part 61 will be achieved;
    (F) The dispersion factor for the sewage sludge incinerator, as well 
as modeling results and supporting documentation;
    (G) The control efficiency for parameters regulated in 40 CFR 
503.43, as well as performance test results and supporting 
documentation;
    (H) Information used to calculate the risk specific concentration 
(RSC) for chromium, including the results of incinerator stack tests for 
hexavalent and total chromium concentrations, if the applicant is 
requesting a chromium limit based on a site-specific RSC value;
    (I) Whether the applicant monitors total hydrocarbons (THC) or 
Carbon Monoxide (CO) in the exit gas for the sewage sludge incinerator;
    (J) The type of sewage sludge incinerator;
    (K) The maximum performance test combustion temperature, as obtained 
during the performance test of the sewage sludge incinerator to 
determine pollutant control efficiencies;
    (L) The following information on the sewage sludge feed rate used 
during the performance test:
    (1) Sewage sludge feed rate in dry metric tons per day;
    (2) Identification of whether the feed rate submitted is average use 
or maximum design; and

[[Page 192]]

    (3) A description of how the feed rate was calculated;
    (M) The incinerator stack height in meters for each stack, including 
identification of whether actual or creditable stack height was used;
    (N) The operating parameters for the sewage sludge incinerator air 
pollution control device(s), as obtained during the performance test of 
the sewage sludge incinerator to determine pollutant control 
efficiencies;
    (O) Identification of the monitoring equipment in place, including 
(but not limited to) equipment to monitor the following:
    (1) Total hydrocarbons or Carbon Monoxide;
    (2) Percent oxygen;
    (3) Percent moisture; and
    (4) Combustion temperature; and
    (P) A list of all air pollution control equipment used with this 
sewage sludge incinerator;
    (12) Disposal in a municipal solid waste landfill. If sewage sludge 
from the applicant's facility is sent to a municipal solid waste 
landfill (MSWLF), the applicant must provide the following information 
for each MSWLF to which sewage sludge is sent:
    (i) The name, contact person, mailing address, location, and all 
applicable permit numbers of the MSWLF;
    (ii) The total dry metric tons per 365-day period sent from this 
facility to the MSWLF;
    (iii) A determination of whether the sewage sludge meets applicable 
requirements for disposal of sewage sludge in a MSWLF, including the 
results of the paint filter liquids test and any additional requirements 
that apply on a site-specific basis; and
    (iv) Information, if known, indicating whether the MSWLF complies 
with criteria set forth in 40 CFR part 258;
    (13) Contractors. All applicants must provide the name, mailing 
address, telephone number, and responsibilities of all contractors 
responsible for any operational or maintenance aspects of the facility 
related to sewage sludge generation, treatment, use, or disposal;
    (14) Other information. At the request of the permitting authority, 
the applicant must provide any other information necessary to determine 
the appropriate standards for permitting under 40 CFR part 503, and must 
provide any other information necessary to assess the sewage sludge use 
and disposal practices, determine whether to issue a permit, or identify 
appropriate permit requirements; and
    (15) Signature. All applications must be signed by a certifying 
official in compliance with Sec. 122.22.

    [Note 1: At 46 FR 2046, Jan. 8, 1981, the Environmental Protection 
Agency suspended until further notice Sec. 122.21(g)(7)(v)(A) and the 
corresponding portions of Item V-C of the NPDES application Form 2C as 
they apply to coal mines. This suspension continues in effect.]
    [Note 2: At 46 FR 22585, Apr. 20, 1981, the Environmental Protection 
Agency suspended until further notice Sec. 122.21(g)(7)(v)(A) and the 
corresponding portions of Item V-C of the NPDES application Form 2C as 
they apply to:
    a. Testing and reporting for all four organic fractions in the 
Greige Mills Subcategory of the Textile Mills industry (subpart C--Low 
water use processing of 40 CFR part 410), and testing and reporting for 
the pesticide fraction in all other subcategories of this industrial 
category.
    b. Testing and reporting for the volatile, base/neutral and 
pesticide fractions in the Base and Precious Metals Subcategory of the 
Ore Mining and Dressing industry (subpart B of 40 CFR part 440), and 
testing and reporting for all four fractions in all other subcategories 
of this industrial category.
    c. Testing and reporting for all four GC/MS fractions in the 
Porcelain Enameling industry.

This revision continues that suspension.] \1\

    [Note 3: At 46 FR 35090, July 1, 1981, the Environmental Protection 
Agency suspended until further notice Sec. 122.21(g)(7)(v)(A) and the 
corresponding portions of Item V-C of the NPDES application Form 2C as 
they apply to:
    a. Testing and reporting for the pesticide fraction in the Tall Oil 
Rosin Subcategory (subpart D) and Rosin-Based Derivatives Subcategory 
(subpart F) of the Gum and Wood Chemicals industry (40 CFR part 454), 
and testing and reporting for the pesticide and base-neutral fractions 
in all other subcategories of this industrial category.
    b. Testing and reporting for the pesticide fraction in the Leather 
Tanning and Finishing, Paint and Ink Formulation, and Photographic 
Supplies industrial categories.
    c. Testing and reporting for the acid, base/neutral and pesticide 
fractions in the Petroleum Refining industrial category.
    d. Testing and reporting for the pesticide fraction in the 
Papergrade Sulfite subcategories (subparts J and U) of the Pulp and 
Paper industry (40 CFR part 430); testing and

[[Page 193]]

reporting for the base/neutral and pesticide fractions in the following 
subcategories: Deink (subpart Q), Dissolving Kraft (subpart F), and 
Paperboard from Waste Paper (subpart E); testing and reporting for the 
volatile, base/neutral and pesticide fractions in the following 
subcategories: BCT Bleached Kraft (subpart H), Semi-Chemical (subparts B 
and C), and Nonintegrated-Fine Papers (subpart R); and testing and 
reporting for the acid, base/neutral, and pesticide fractions in the 
following subcategories: Fine Bleached Kraft (subpart I), Dissolving 
Sulfite Pulp (subpart K), Groundwood-Fine Papers (subpart O), Market 
Bleached Kraft (subpart G), Tissue from Wastepaper (subpart T), and 
Nonintegrated-Tissue Papers (subpart S).
    e. Testing and reporting for the base/neutral fraction in the Once-
Through Cooling Water, Fly Ash and Bottom Ash Transport Water process 
wastestreams of the Steam Electric Power Plant industrial category.

This revision continues that suspension.] \1\
---------------------------------------------------------------------------

    \1\ Editorial Note: The words ``This revision'' refer to the 
document published at 48 FR 14153, Apr. 1, 1983.
---------------------------------------------------------------------------

    (r) Application requirements for facilities with cooling water 
intake structures--(1)(i) New facilities with new or modified cooling 
water intake structures. New facilities (other than offshore oil and gas 
extraction facilities) with cooling water intake structures as defined 
in part 125, subpart I, of this chapter must submit to the Director for 
review the information required under paragraphs (r)(2) (except 
(r)(2)(iv)), (3), and (4) of this section and Sec. 125.86 of this 
chapter as part of their application. New offshore oil and gas 
extraction facilities with cooling water intake structures as defined in 
part 125, subpart N, of this chapter that are fixed facilities must 
submit to the Director for review the information required under 
paragraphs (r)(2) (except (r)(2)(iv)), (3), and (4) of this section and 
Sec. 125.136 of this chapter as part of their application. New offshore 
oil and gas extraction facilities that are not fixed facilities must 
submit to the Director for review only the information required under 
paragraphs (r)(2)(iv), (r)(3) (except (r)(3)(ii)), and Sec. 125.136 of 
this chapter as part of their application. Requests for alternative 
requirements under Sec. 125.85 or Sec. 125.135 of this chapter must be 
submitted with your permit application.
    (ii) Phase II existing facilities. Phase II existing facilities as 
defined in part 125, subpart J, of this chapter must submit to the 
Director for review the information required under paragraphs (r)(2), 
(3), and (5) of this section and all applicable provisions of Sec. 
125.95 of this chapter as part of their application except for the 
Proposal for Information Collection which must be provided in accordance 
with Sec. 125.95(b)(1).
    (2) Source water physical data. These include:
    (i) A narrative description and scaled drawings showing the physical 
configuration of all source water bodies used by your facility, 
including areal dimensions, depths, salinity and temperature regimes, 
and other documentation that supports your determination of the water 
body type where each cooling water intake structure is located;
    (ii) Identification and characterization of the source waterbody's 
hydrological and geomorphological features, as well as the methods you 
used to conduct any physical studies to determine your intake's area of 
influence within the waterbody and the results of such studies;
    (iii) Locational maps; and
    (iv) For new offshore oil and gas facilities that are not fixed 
facilities, a narrative description and/or locational maps providing 
information on predicted locations within the waterbody during the 
permit term in sufficient detail for the Director to determine the 
appropriateness of additional impingement requirements under Sec. 
125.134(b)(4).
    (3) Cooling water intake structure data. These include:
    (i) A narrative description of the configuration of each of your 
cooling water intake structures and where it is located in the water 
body and in the water column;
    (ii) Latitude and longitude in degrees, minutes, and seconds for 
each of your cooling water intake structures;
    (iii) A narrative description of the operation of each of your 
cooling water intake structures, including design intake flows, daily 
hours of operation, number of days of the year in operation and seasonal 
changes, if applicable;
    (iv) A flow distribution and water balance diagram that includes all 
sources of water to the facility, recirculating flows, and discharges; 
and
    (v) Engineering drawings of the cooling water intake structure.

[[Page 194]]

    (4) Source water baseline biological characterization data. This 
information is required to characterize the biological community in the 
vicinity of the cooling water intake structure and to characterize the 
operation of the cooling water intake structures. The Director may also 
use this information in subsequent permit renewal proceedings to 
determine if your Design and Construction Technology Plan as required in 
Sec. 125.86(b)(4) or Sec. 125.136(b)(3) of this chapter should be 
revised. This supporting information must include existing data (if they 
are available). However, you may supplement the data using newly 
conducted field studies if you choose to do so. The information you 
submit must include:
    (i) A list of the data in paragraphs (r)(4)(ii) through (vi) of this 
section that are not available and efforts made to identify sources of 
the data;
    (ii) A list of species (or relevant taxa) for all life stages and 
their relative abundance in the vicinity of the cooling water intake 
structure;
    (iii) Identification of the species and life stages that would be 
most susceptible to impingement and entrainment. Species evaluated 
should include the forage base as well as those most important in terms 
of significance to commercial and recreational fisheries;
    (iv) Identification and evaluation of the primary period of 
reproduction, larval recruitment, and period of peak abundance for 
relevant taxa;
    (v) Data representative of the seasonal and daily activities (e.g., 
feeding and water column migration) of biological organisms in the 
vicinity of the cooling water intake structure;
    (vi) Identification of all threatened, endangered, and other 
protected species that might be susceptible to impingement and 
entrainment at your cooling water intake structures;
    (vii) Documentation of any public participation or consultation with 
Federal or State agencies undertaken in development of the plan; and
    (viii) If you supplement the information requested in paragraph 
(r)(4)(i) of this section with data collected using field studies, 
supporting documentation for the Source Water Baseline Biological 
Characterization must include a description of all methods and quality 
assurance procedures for sampling, and data analysis including a 
description of the study area; taxonomic identification of sampled and 
evaluated biological assemblages (including all life stages of fish and 
shellfish); and sampling and data analysis methods. The sampling and/or 
data analysis methods you use must be appropriate for a quantitative 
survey and based on consideration of methods used in other biological 
studies performed within the same source water body. The study area 
should include, at a minimum, the area of influence of the cooling water 
intake structure.
    (5) Cooling water system data. Phase II existing facilities as 
defined in part 125, subpart J of this chapter must provide the 
following information for each cooling water intake structure they use:
    (i) A narrative description of the operation of the cooling water 
system, its relationship to cooling water intake structures, the 
proportion of the design intake flow that is used in the system, the 
number of days of the year the cooling water system is in operation and 
seasonal changes in the operation of the system, if applicable; and
    (ii) Design and engineering calculations prepared by a qualified 
professional and supporting data to support the description required by 
paragraph (r)(5)(i) of this section.

[48 FR 14153, Apr. 1, 1983]

    Editorial Note: For Federal Register citations affecting Sec. 
122.21, see the List of CFR Sections Affected, which appears in the 
Finding Aids section of the printed volume and on GPO Access.

    Effective Date Note: At 72 FR 37109, July 9, 2007, Sec. 
122.21(r)(1)(ii) and (r)(5) were suspended.



Sec. 122.22  Signatories to permit applications and reports (applicable to 

State programs, see Sec. 123.25).

    (a) Applications. All permit applications shall be signed as 
follows:
    (1) For a corporation. By a responsible corporate officer. For the 
purpose of this section, a responsible corporate officer means: (i) A 
president, secretary, treasurer, or vice-president of the corporation in 
charge of a principal business function, or any other person who perfoms 
similar policy- or decision-

[[Page 195]]

making functions for the corporation, or (ii) the manager of one or more 
manufacturing, production, or operating facilities, provided, the 
manager is authorized to make management decisions which govern the 
operation of the regulated facility including having the explicit or 
implicit duty of making major capital investment recommendations, and 
initiating and directing other comprehensive measures to assure long 
term environmental compliance with environmental laws and regulations; 
the manager can ensure that the necessary systems are established or 
actions taken to gather complete and accurate information for permit 
application requirements; and where authority to sign documents has been 
assigned or delegated to the manager in accordance with corporate 
procedures.
    Note: EPA does not require specific assignments or delegations of 
authority to responsible corporate officers identified in Sec. 
122.22(a)(1)(i). The Agency will presume that these responsible 
corporate officers have the requisite authority to sign permit 
applications unless the corporation has notified the Director to the 
contrary. Corporate procedures governing authority to sign permit 
applications may provide for assignment or delegation to applicable 
corporate positions under Sec. 122.22(a)(1)(ii) rather than to specific 
individuals.
    (2) For a partnership or sole proprietorship. By a general partner 
or the proprietor, respectively; or
    (3) For a municipality, State, Federal, or other public agency. By 
either a principal executive officer or ranking elected official. For 
purposes of this section, a principal executive officer of a Federal 
agency includes: (i) The chief executive officer of the agency, or (ii) 
a senior executive officer having responsibility for the overall 
operations of a principal geographic unit of the agency (e.g., Regional 
Administrators of EPA).
    (b) All reports required by permits, and other information requested 
by the Director shall be signed by a person described in paragraph (a) 
of this section, or by a duly authorized representative of that person. 
A person is a duly authorized representative only if:
    (1) The authorization is made in writing by a person described in 
paragraph (a) of this section;
    (2) The authorization specifies either an individual or a position 
having responsibility for the overall operation of the regulated 
facility or activity such as the position of plant manager, operator of 
a well or a well field, superintendent, position of equivalent 
responsibility, or an individual or position having overall 
responsibility for environmental matters for the company, (A duly 
authorized representative may thus be either a named individual or any 
individual occupying a named position.) and,
    (3) The written authorization is submitted to the Director.
    (c) Changes to authorization. If an authorization under paragraph 
(b) of this section is no longer accurate because a different individual 
or position has responsibility for the overall operation of the 
facility, a new authorization satisfying the requirements of paragraph 
(b) of this section must be submitted to the Director prior to or 
together with any reports, information, or applications to be signed by 
an authorized representative.
    (d) Certification. Any person signing a document under paragraph (a) 
or (b) of this section shall make the following certification:

    I certify under penalty of law that this document and all 
attachments were prepared under my direction or supervision in 
accordance with a system designed to assure that qualified personnel 
properly gather and evaluate the information submitted. Based on my 
inquiry of the person or persons who manage the system, or those persons 
directly responsible for gathering the information, the information 
submitted is, to the best of my knowledge and belief, true, accurate, 
and complete. I am aware that there are significant penalties for 
submitting false information, including the possibility of fine and 
imprisonment for knowing violations.

(Clean Water Act (33 U.S.C. 1251 et seq.), Safe Drinking Water Act (42 
U.S.C. 300f et seq.), Clean Air Act (42 U.S.C. 7401 et seq.), Resource 
Conservation and Recovery Act (42 U.S.C. 6901 et seq.))

[48 FR 14153, Apr. 1, 1983, as amended at 48 FR 39619, Sept. 1, 1983; 49 
FR 38047, Sept. 29, 1984; 50 FR 6941, Feb. 19, 1985; 55 FR 48063, Nov. 
16, 1990; 65 FR 30907, May 15, 2000]



Sec. 122.23  Concentrated animal feeding operations (applicable to State NPDES 

programs, see Sec. 123.25).

    (a) Scope. Concentrated animal feeding operations (CAFOs), as 
defined in

[[Page 196]]

paragraph (b) of this section or designated in accordance with paragraph 
(c) of this section, are point sources, subject to NPDES permitting 
requirements as provided in this section. Once an animal feeding 
operation is defined as a CAFO for at least one type of animal, the 
NPDES requirements for CAFOs apply with respect to all animals in 
confinement at the operation and all manure, litter, and process 
wastewater generated by those animals or the production of those 
animals, regardless of the type of animal.
    (b) Definitions applicable to this section:
    (1) Animal feeding operation (``AFO'') means a lot or facility 
(other than an aquatic animal production facility) where the following 
conditions are met:
    (i) Animals (other than aquatic animals) have been, are, or will be 
stabled or confined and fed or maintained for a total of 45 days or more 
in any 12-month period, and
    (ii) Crops, vegetation, forage growth, or post-harvest residues are 
not sustained in the normal growing season over any portion of the lot 
or facility.
    (2) Concentrated animal feeding operation (``CAFO'') means an AFO 
that is defined as a Large CAFO or as a Medium CAFO by the terms of this 
paragraph, or that is designated as a CAFO in accordance with paragraph 
(c) of this section. Two or more AFOs under common ownership are 
considered to be a single AFO for the purposes of determining the number 
of animals at an operation, if they adjoin each other or if they use a 
common area or system for the disposal of wastes.
    (3) The term land application area means land under the control of 
an AFO owner or operator, whether it is owned, rented, or leased, to 
which manure, litter or process wastewater from the production area is 
or may be applied.
    (4) Large concentrated animal feeding operation (``Large CAFO''). An 
AFO is defined as a Large CAFO if it stables or confines as many as or 
more than the numbers of animals specified in any of the following 
categories:
    (i) 700 mature dairy cows, whether milked or dry;
    (ii) 1,000 veal calves;
    (iii) 1,000 cattle other than mature dairy cows or veal calves. 
Cattle includes but is not limited to heifers, steers, bulls and cow/
calf pairs;
    (iv) 2,500 swine each weighing 55 pounds or more;
    (v) 10,000 swine each weighing less than 55 pounds;
    (vi) 500 horses;
    (vii) 10,000 sheep or lambs;
    (viii) 55,000 turkeys;
    (ix) 30,000 laying hens or broilers, if the AFO uses a liquid manure 
handling system;
    (x) 125,000 chickens (other than laying hens), if the AFO uses other 
than a liquid manure handling system;
    (xi) 82,000 laying hens, if the AFO uses other than a liquid manure 
handling system;
    (xii) 30,000 ducks (if the AFO uses other than a liquid manure 
handling system); or
    (xiii) 5,000 ducks (if the AFO uses a liquid manure handling 
system).
    (5) The term manure is defined to include manure, bedding, compost 
and raw materials or other materials commingled with manure or set aside 
for disposal.
    (6) Medium concentrated animal feeding operation (``Medium CAFO''). 
The term Medium CAFO includes any AFO with the type and number of 
animals that fall within any of the ranges listed in paragraph (b)(6)(i) 
of this section and which has been defined or designated as a CAFO. An 
AFO is defined as a Medium CAFO if:
    (i) The type and number of animals that it stables or confines falls 
within any of the following ranges:
    (A) 200 to 699 mature dairy cows, whether milked or dry;
    (B) 300 to 999 veal calves;
    (C) 300 to 999 cattle other than mature dairy cows or veal calves. 
Cattle includes but is not limited to heifers, steers, bulls and cow/
calf pairs;
    (D) 750 to 2,499 swine each weighing 55 pounds or more;
    (E) 3,000 to 9,999 swine each weighing less than 55 pounds;
    (F) 150 to 499 horses;
    (G) 3,000 to 9,999 sheep or lambs;
    (H) 16,500 to 54,999 turkeys;
    (I) 9,000 to 29,999 laying hens or broilers, if the AFO uses a 
liquid manure handling system;

[[Page 197]]

    (J) 37,500 to 124,999 chickens (other than laying hens), if the AFO 
uses other than a liquid manure handling system;
    (K) 25,000 to 81,999 laying hens, if the AFO uses other than a 
liquid manure handling system;
    (L) 10,000 to 29,999 ducks (if the AFO uses other than a liquid 
manure handling system); or
    (M) 1,500 to 4,999 ducks (if the AFO uses a liquid manure handling 
system); and
    (ii) Either one of the following conditions are met:
    (A) Pollutants are discharged into waters of the United States 
through a man-made ditch, flushing system, or other similar man-made 
device; or
    (B) Pollutants are discharged directly into waters of the United 
States which originate outside of and pass over, across, or through the 
facility or otherwise come into direct contact with the animals confined 
in the operation.
    (7) Process wastewater means water directly or indirectly used in 
the operation of the AFO for any or all of the following: spillage or 
overflow from animal or poultry watering systems; washing, cleaning, or 
flushing pens, barns, manure pits, or other AFO facilities; direct 
contact swimming, washing, or spray cooling of animals; or dust control. 
Process wastewater also includes any water which comes into contact with 
any raw materials, products, or byproducts including manure, litter, 
feed, milk, eggs or bedding.
    (8) Production area means that part of an AFO that includes the 
animal confinement area, the manure storage area, the raw materials 
storage area, and the waste containment areas. The animal confinement 
area includes but is not limited to open lots, housed lots, feedlots, 
confinement houses, stall barns, free stall barns, milkrooms, milking 
centers, cowyards, barnyards, medication pens, walkers, animal walkways, 
and stables. The manure storage area includes but is not limited to 
lagoons, runoff ponds, storage sheds, stockpiles, under house or pit 
storages, liquid impoundments, static piles, and composting piles. The 
raw materials storage area includes but is not limited to feed silos, 
silage bunkers, and bedding materials. The waste containment area 
includes but is not limited to settling basins, and areas within berms 
and diversions which separate uncontaminated storm water. Also included 
in the definition of production area is any egg washing or egg 
processing facility, and any area used in the storage, handling, 
treatment, or disposal of mortalities.
    (9) Small concentrated animal feeding operation (``Small CAFO''). An 
AFO that is designated as a CAFO and is not a Medium CAFO.
    (c) How may an AFO be designated as a CAFO? The appropriate 
authority (i.e., State Director or Regional Administrator, or both, as 
specified in paragraph (c)(1) of this section) may designate any AFO as 
a CAFO upon determining that it is a significant contributor of 
pollutants to waters of the United States.
    (1) Who may designate?--(i) Approved States. In States that are 
approved or authorized by EPA under Part 123, CAFO designations may be 
made by the State Director. The Regional Administrator may also 
designate CAFOs in approved States, but only where the Regional 
Administrator has determined that one or more pollutants in the AFO's 
discharge contributes to an impairment in a downstream or adjacent State 
or Indian country water that is impaired for that pollutant.
    (ii) States with no approved program. The Regional Administrator may 
designate CAFOs in States that do not have an approved program and in 
Indian country where no entity has expressly demonstrated authority and 
has been expressly authorized by EPA to implement the NPDES program.
    (2) In making this designation, the State Director or the Regional 
Administrator shall consider the following factors:
    (i) The size of the AFO and the amount of wastes reaching waters of 
the United States;
    (ii) The location of the AFO relative to waters of the United 
States;
    (iii) The means of conveyance of animal wastes and process waste 
waters into waters of the United States;

[[Page 198]]

    (iv) The slope, vegetation, rainfall, and other factors affecting 
the likelihood or frequency of discharge of animal wastes manure and 
process waste waters into waters of the United States; and
    (v) Other relevant factors.
    (3) No AFO shall be designated under this paragraph unless the State 
Director or the Regional Administrator has conducted an on-site 
inspection of the operation and determined that the operation should and 
could be regulated under the permit program. In addition, no AFO with 
numbers of animals below those established in paragraph (b)(6) of this 
section may be designated as a CAFO unless:
    (i) Pollutants are discharged into waters of the United States 
through a manmade ditch, flushing system, or other similar manmade 
device; or
    (ii) Pollutants are discharged directly into waters of the United 
States which originate outside of the facility and pass over, across, or 
through the facility or otherwise come into direct contact with the 
animals confined in the operation.
    (d) Who must seek coverage under an NPDES permit?--(1) Permit 
requirement. The owner or operator of a CAFO must seek coverage under an 
NPDES permit if the CAFO discharges or proposes to discharge. A CAFO 
proposes to discharge if it is designed, constructed, operated, or 
maintained such that a discharge will occur. Specifically, the CAFO 
owner or operator must either apply for an individual NPDES permit or 
submit a notice of intent for coverage under an NPDES general permit. If 
the Director has not made a general permit available to the CAFO, the 
CAFO owner or operator must submit an application for an individual 
permit to the Director.
    (2) Information to submit with permit application or notice of 
intent. An application for an individual permit must include the 
information specified in Sec. 122.21. A notice of intent for a general 
permit must include the information specified in Sec. Sec. 122.21 and 
122.28.
    (3) Information to submit with permit application. A permit 
application for an individual permit must include the information 
specified in Sec. 122.21. A notice of intent for a general permit must 
include the information specified in Sec. Sec. 122.21 and 122.28.
    (e) Land application discharges from a CAFO are subject to NPDES 
requirements. The discharge of manure, litter or process wastewater to 
waters of the United States from a CAFO as a result of the application 
of that manure, litter or process wastewater by the CAFO to land areas 
under its control is a discharge from that CAFO subject to NPDES permit 
requirements, except where it is an agricultural storm water discharge 
as provided in 33 U.S.C. 1362(14). For purposes of this paragraph, where 
the manure, litter or process wastewater has been applied in accordance 
with site specific nutrient management practices that ensure appropriate 
agricultural utilization of the nutrients in the manure, litter or 
process wastewater, as specified in Sec. 122.42(e)(1)(vi)-(ix), a 
precipitation-related discharge of manure, litter or process wastewater 
from land areas under the control of a CAFO is an agricultural 
stormwater discharge.
    (1) For unpermitted Large CAFOs, a precipitation-related discharge 
of manure, litter, or process wastewater from land areas under the 
control of a CAFO shall be considered an agricultural stormwater 
discharge only where the manure, litter, or process wastewater has been 
land applied in accordance with site-specific nutrient management 
practices that ensure appropriate agricultural utilization of the 
nutrients in the manure, litter, or process wastewater, as specified in 
Sec. 122.42(e)(1)(vi) through (ix).
    (2) Unpermitted Large CAFOs must maintain documentation specified in 
Sec. 122.42(e)(1)(ix) either on site or at a nearby office, or 
otherwise make such documentation readily available to the Director or 
Regional Administrator upon request.
    (f) When must the owner or operator of a CAFO seek coverage under an 
NPDES permit? Any CAFO that is required to seek permit coverage under 
paragraph (d)(1) of this section must seek coverage when the CAFO 
proposes to discharge, unless a later deadline is specified below.
    (1) Operations defined as CAFOs prior to April 14, 2003. For 
operations defined as CAFOs under regulations that were

[[Page 199]]

in effect prior to April 14, 2003, the owner or operator must have or 
seek to obtain coverage under an NPDES permit as of April 14, 2003, and 
comply with all applicable NPDES requirements, including the duty to 
maintain permit coverage in accordance with paragraph (g) of this 
section.
    (2) Operations defined as CAFOs as of April 14, 2003, that were not 
defined as CAFOs prior to that date. For all operations defined as CAFOs 
as of April 14, 2003, that were not defined as CAFOs prior to that date, 
the owner or operator of the CAFO must seek to obtain coverage under an 
NPDES permit by February 27, 2009.
    (3) Operations that become defined as CAFOs after April 14, 2003, 
but which are not new sources. For a newly constructed CAFO and for an 
AFO that makes changes to its operations that result in its becoming 
defined as a CAFO for the first time after April 14, 2003, but is not a 
new source, the owner or operator must seek to obtain coverage under an 
NPDES permit, as follows:
    (i) For newly constructed operations not subject to effluent 
limitations guidelines, 180 days prior to the time CAFO commences 
operation;
    (ii) For other operations (e.g., resulting from an increase in the 
number of animals), as soon as possible, but no later than 90 days after 
becoming defined as a CAFO; or
    (iii) If an operational change that makes the operation a CAFO would 
not have made it a CAFO prior to April 14, 2003, the operation has until 
February 27, 2009, or 90 days after becoming defined as a CAFO, 
whichever is later.
    (4) New sources. The owner or operator of a new source must seek to 
obtain coverage under a permit at least 180 days prior to the time that 
the CAFO commences operation.
    (5) Operations that are designated as CAFOs. For operations 
designated as a CAFO in accordance with paragraph (c) of this section, 
the owner or operator must seek to obtain coverage under a permit no 
later than 90 days after receiving notice of the designation.
    (g) Duty to maintain permit coverage. No later than 180 days before 
the expiration of the permit, or as provided by the Director, any 
permitted CAFO must submit an application to renew its permit, in 
accordance with Sec. 122.21(d), unless the CAFO will not discharge or 
propose to discharge upon expiration of the permit.
    (h) Procedures for CAFOs seeking coverage under a general permit. 
(1) CAFO owners or operators must submit a notice of intent when seeking 
authorization to discharge under a general permit in accordance with 
Sec. 122.28(b). The Director must review notices of intent submitted by 
CAFO owners or operators to ensure that the notice of intent includes 
the information required by Sec. 122.21(i)(1), including a nutrient 
management plan that meets the requirements of Sec. 122.42(e) and 
applicable effluent limitations and standards, including those specified 
in 40 CFR part 412. When additional information is necessary to complete 
the notice of intent or clarify, modify, or supplement previously 
submitted material, the Director may request such information from the 
owner or operator. If the Director makes a preliminary determination 
that the notice of intent meets the requirements of Sec. Sec. 
122.21(i)(1) and 122.42(e), the Director must notify the public of the 
Director's proposal to grant coverage under the permit to the CAFO and 
make available for public review and comment the notice of intent 
submitted by the CAFO, including the CAFO's nutrient management plan, 
and the draft terms of the nutrient management plan to be incorporated 
into the permit. The process for submitting public comments and hearing 
requests, and the hearing process if a request for a hearing is granted, 
must follow the procedures applicable to draft permits set forth in 40 
CFR 124.11 through 124.13. The Director may establish, either by 
regulation or in the general permit, an appropriate period of time for 
the public to comment and request a hearing that differs from the time 
period specified in 40 CFR 124.10. The Director must respond to 
significant comments received during the comment period, as provided in 
40 CFR 124.17, and, if necessary, require the CAFO owner or operator to 
revise the nutrient management plan in order to be granted permit 
coverage. When the Director authorizes coverage for the

[[Page 200]]

CAFO owner or operator under the general permit, the terms of the 
nutrient management plan shall become incorporated as terms and 
conditions of the permit for the CAFO. The Director shall notify the 
CAFO owner or operator and inform the public that coverage has been 
authorized and of the terms of the nutrient management plan incorporated 
as terms and conditions of the permit applicable to the CAFO.
    (2) For EPA-issued permits only. The Regional Administrator shall 
notify each person who has submitted written comments on the proposal to 
grant coverage and the draft terms of the nutrient management plan or 
requested notice of the final permit decision. Such notification shall 
include notice that coverage has been authorized and of the terms of the 
nutrient management plan incorporated as terms and conditions of the 
permit applicable to the CAFO.
    (3) Nothing in this paragraph (h) shall affect the authority of the 
Director to require an individual permit under Sec. 122.28(b)(3).
    (i) No discharge certification option. (1) The owner or operator of 
a CAFO that meets the eligibility criteria in paragraph (i)(2) of this 
section may certify to the Director that the CAFO does not discharge or 
propose to discharge. A CAFO owner or operator who certifies that the 
CAFO does not discharge or propose to discharge is not required to seek 
coverage under an NPDES permit pursuant to paragraph (d)(1) of this 
section, provided that the CAFO is designed, constructed, operated, and 
maintained in accordance with the requirements of paragraphs (i)(2) and 
(3) of this section, and subject to the limitations in paragraph (i)(4) 
of this section.
    (2) Eligibility criteria. In order to certify that a CAFO does not 
discharge or propose to discharge, the owner or operator of a CAFO must 
document, based on an objective assessment of the conditions at the 
CAFO, that the CAFO is designed, constructed, operated, and maintained 
in a manner such that the CAFO will not discharge, as follows:
    (i) The CAFO's production area is designed, constructed, operated, 
and maintained so as not to discharge. The CAFO must maintain 
documentation that demonstrates that:
    (A) Any open manure storage structures are designed, constructed, 
operated, and maintained to achieve no discharge based on a technical 
evaluation in accordance with the elements of the technical evaluation 
set forth in 40 CFR 412.46(a)(1)(i) through (viii);
    (B) Any part of the CAFO's production area that is not addressed by 
paragraph (i)(2)(i)(A) of this section is designed, constructed, 
operated, and maintained such that there will be no discharge of manure, 
litter, or process wastewater; and
    (C) The CAFO implements the additional measures set forth in 40 CFR 
412.37(a) and (b);
    (ii) The CAFO has developed and is implementing an up-to-date 
nutrient management plan to ensure no discharge from the CAFO, including 
from all land application areas under the control of the CAFO, that 
addresses, at a minimum, the following:
    (A) The elements of Sec. 122.42(e)(1)(i) through (ix) and 40 CFR 
412.37(c); and
    (B) All site-specific operation and maintenance practices necessary 
to ensure no discharge, including any practices or conditions 
established by a technical evaluation pursuant to paragraph (i)(2)(i)(A) 
of this section; and
    (iii) The CAFO must maintain documentation required by this 
paragraph either on site or at a nearby office, or otherwise make such 
documentation readily available to the Director or Regional 
Administrator upon request.
    (3) Submission to the Director. In order to certify that a CAFO does 
not discharge or propose to discharge, the CAFO owner or operator must 
complete and submit to the Director, by certified mail or equivalent 
method of documentation, a certification that includes, at a minimum, 
the following information:
    (i) The legal name, address and phone number of the CAFO owner or 
operator (see Sec. 122.21(b));
    (ii) The CAFO name and address, the county name and the latitude and 
longitude where the CAFO is located;
    (iii) A statement that describes the basis for the CAFO's 
certification that it satisfies the eligibility requirements

[[Page 201]]

identified in paragraph (i)(2) of this section; and
    (iv) The following certification statement: ``I certify under 
penalty of law that I am the owner or operator of a concentrated animal 
feeding operation (CAFO), identified as [Name of CAFO], and that said 
CAFO meets the requirements of 40 CFR 122.23(i). I have read and 
understand the eligibility requirements of 40 CFR 122.23(i)(2) for 
certifying that a CAFO does not discharge or propose to discharge and 
further certify that this CAFO satisfies the eligibility requirements. 
As part of this certification, I am including the information required 
by 40 CFR 122.23(i)(3). I also understand the conditions set forth in 40 
CFR 122.23(i)(4), (5) and (6) regarding loss and withdrawal of 
certification. I certify under penalty of law that this document and all 
other documents required for this certification were prepared under my 
direction or supervision and that qualified personnel properly gathered 
and evaluated the information submitted. Based upon my inquiry of the 
person or persons directly involved in gathering and evaluating the 
information, the information submitted is to the best of my knowledge 
and belief true, accurate and complete. I am aware there are significant 
penalties for submitting false information, including the possibility of 
fine and imprisonment for knowing violations.''; and
    (v) The certification must be signed in accordance with the 
signatory requirements of 40 CFR 122.22.
    (4) Term of certification. A certification that meets the 
requirements of paragraphs (i)(2) and (i)(3) of this section shall 
become effective on the date it is submitted, unless the Director 
establishes an effective date of up to 30 days after the date of 
submission. Certification will remain in effect for five years or until 
the certification is no longer valid or is withdrawn, whichever occurs 
first. A certification is no longer valid when a discharge has occurred 
or when the CAFO ceases to meet the eligibility criteria in paragraph 
(i)(2) of this section.
    (5) Withdrawal of certification. (i) At any time, a CAFO may 
withdraw its certification by notifying the Director by certified mail 
or equivalent method of documentation. A certification is withdrawn on 
the date the notification is submitted to the Director. The CAFO does 
not need to specify any reason for the withdrawal in its notification to 
the Director.
    (ii) If a certification becomes invalid in accordance with paragraph 
(i)(4) of this section, the CAFO must withdraw its certification within 
three days of the date on which the CAFO becomes aware that the 
certification is invalid. Once a CAFO's certification is no longer 
valid, the CAFO is subject to the requirement in paragraph (d)(1) of 
this section to seek permit coverage if it discharges or proposes to 
discharge.
    (6) Recertification. A previously certified CAFO that does not 
discharge or propose to discharge may recertify in accordance with 
paragraph (i) of this section, except that where the CAFO has 
discharged, the CAFO may only recertify if the following additional 
conditions are met:
    (i) The CAFO had a valid certification at the time of the discharge;
    (ii) The owner or operator satisfies the eligibility criteria of 
paragraph (i)(2) of this section, including any necessary modifications 
to the CAFO's design, construction, operation, and/or maintenance to 
permanently address the cause of the discharge and ensure that no 
discharge from this cause occurs in the future;
    (iii) The CAFO has not previously recertified after a discharge from 
the same cause;
    (iv) The owner or operator submits to the Director for review the 
following documentation: a description of the discharge, including the 
date, time, cause, duration, and approximate volume of the discharge, 
and a detailed explanation of the steps taken by the CAFO to permanently 
address the cause of the discharge in addition to submitting a 
certification in accordance with paragraph (i)(3) of this section; and
    (v) Notwithstanding paragraph (i)(4) of this section, a 
recertification that meets the requirements of paragraphs (i)(6)(iii) 
and (i)(6)(iv) of this section shall only become effective 30 days from 
the date of submission of the recertification documentation.

[[Page 202]]

    (j) Effect of certification. (1) An unpermitted CAFO certified in 
accordance with paragraph (i) of this section is presumed not to propose 
to discharge. If such a CAFO does discharge, it is not in violation of 
the requirement that CAFOs that propose to discharge seek permit 
coverage pursuant to paragraphs (d)(1) and (f) of this section, with 
respect to that discharge. In all instances, the discharge of a 
pollutant without a permit is a violation of the Clean Water Act section 
301(a) prohibition against unauthorized discharges from point sources.
    (2) In any enforcement proceeding for failure to seek permit 
coverage under paragraphs (d)(1) or (f) of this section that is related 
to a discharge from an unpermitted CAFO, the burden is on the CAFO to 
establish that it did not propose to discharge prior to the discharge 
when the CAFO either did not submit certification documentation as 
provided in paragraph (i)(3) or (i)(6)(iv) of this section within at 
least five years prior to the discharge, or withdrew its certification 
in accordance with paragraph (i)(5) of this section. Design, 
construction, operation, and maintenance in accordance with the criteria 
of paragraph (i)(2) of this section satisfies this burden.

[68 FR 7265, Feb. 12, 2003, as amended at 71 FR 6984, Feb. 10, 2006; 72 
FR 40250, July 24, 2007; 73 FR 70480, Nov. 20, 2008]



Sec. 122.24  Concentrated aquatic animal production facilities (applicable to 

State NPDES programs, see Sec. 123.25).

    (a) Permit requirement. Concentrated aquatic animal production 
facilities, as defined in this section, are point sources subject to the 
NPDES permit program.
    (b) Definition. Concentrated aquatic animal production facility 
means a hatchery, fish farm, or other facility which meets the criteria 
in appendix C of this part, or which the Director designates under 
paragraph (c) of this section.
    (c) Case-by-case designation of concentrated aquatic animal 
production facilities. (1) The Director may designate any warm or cold 
water aquatic animal production facility as a concentrated aquatic 
animal production facility upon determining that it is a significant 
contributor of pollution to waters of the United States. In making this 
designation the Director shall consider the following factors:
    (i) The location and quality of the receiving waters of the United 
States;
    (ii) The holding, feeding, and production capacities of the 
facility;
    (iii) The quantity and nature of the pollutants reaching waters of 
the United States; and
    (iv) Other relevant factors.
    (2) A permit application shall not be required from a concentrated 
aquatic animal production facility designated under this paragraph until 
the Director has conducted on-site inspection of the facility and has 
determined that the facility should and could be regulated under the 
permit program.

[48 FR 14153, Apr. 1, 1983, as amended at 65 FR 30907, May 15, 2000]



Sec. 122.25  Aquaculture projects (applicable to State NPDES programs, see 

Sec. 123.25).

    (a) Permit requirement. Discharges into aquaculture projects, as 
defined in this section, are subject to the NPDES permit program through 
section 318 of CWA, and in accordance with 40 CFR part 125, subpart B.
    (b) Definitions. (1) Aquaculture project means a defined managed 
water area which uses discharges of pollutants into that designated area 
for the maintenance or production of harvestable freshwater, estuarine, 
or marine plants or animals.
    (2) Designated project area means the portions of the waters of the 
United States within which the permittee or permit applicant plans to 
confine the cultivated species, using a method or plan or operation 
(including, but not limited to, physical confinement) which, on the 
basis of reliable scientific evidence, is expected to ensure that 
specific individual organisms comprising an aquaculture crop will enjoy 
increased growth attributable to the discharge of pollutants, and be 
harvested within a defined geographic area.

[[Page 203]]



Sec. 122.26  Storm water discharges (applicable to State NPDES programs, see 

Sec. 123.25).

    (a) Permit requirement. (1) Prior to October 1, 1994, discharges 
composed entirely of storm water shall not be required to obtain a NPDES 
permit except:
    (i) A discharge with respect to which a permit has been issued prior 
to February 4, 1987;
    (ii) A discharge associated with industrial activity (see Sec. 
122.26(a)(4));
    (iii) A discharge from a large municipal separate storm sewer 
system;
    (iv) A discharge from a medium municipal separate storm sewer 
system;
    (v) A discharge which the Director, or in States with approved NPDES 
programs, either the Director or the EPA Regional Administrator, 
determines to contribute to a violation of a water quality standard or 
is a significant contributor of pollutants to waters of the United 
States. This designation may include a discharge from any conveyance or 
system of conveyances used for collecting and conveying storm water 
runoff or a system of discharges from municipal separate storm sewers, 
except for those discharges from conveyances which do not require a 
permit under paragraph (a)(2) of this section or agricultural storm 
water runoff which is exempted from the definition of point source at 
Sec. 122.2.

The Director may designate discharges from municipal separate storm 
sewers on a system-wide or jurisdiction-wide basis. In making this 
determination the Director may consider the following factors:
    (A) The location of the discharge with respect to waters of the 
United States as defined at 40 CFR 122.2.
    (B) The size of the discharge;
    (C) The quantity and nature of the pollutants discharged to waters 
of the United States; and
    (D) Other relevant factors.
    (2) The Director may not require a permit for discharges of storm 
water runoff from the following:
    (i) Mining operations composed entirely of flows which are from 
conveyances or systems of conveyances (including but not limited to 
pipes, conduits, ditches, and channels) used for collecting and 
conveying precipitation runoff and which are not contaminated by contact 
with or that have not come into contact with, any overburden, raw 
material, intermediate products, finished product, byproduct, or waste 
products located on the site of such operations, except in accordance 
with paragraph (c)(1)(iv) of this section.
    (ii) All field activities or operations associated with oil and gas 
exploration, production, processing, or treatment operations or 
transmission facilities, including activities necessary to prepare a 
site for drilling and for the movement and placement of drilling 
equipment, whether or not such field activities or operations may be 
considered to be construction activities, except in accordance with 
paragraph (c)(1)(iii) of this section. Discharges of sediment from 
construction activities associated with oil and gas exploration, 
production, processing, or treatment operations or transmission 
facilities are not subject to the provisions of paragraph (c)(1)(iii)(C) 
of this section.

    Note to paragraph (a)(2)(ii): EPA encourages operators of oil and 
gas field activities or operations to implement and maintain Best 
Management Practices (BMPs) to minimize discharges of pollutants, 
including sediment, in storm water both during and after construction 
activities to help ensure protection of surface water quality during 
storm events. Appropriate controls would be those suitable to the site 
conditions and consistent with generally accepted engineering design 
criteria and manufacturer specifications. Selection of BMPs could also 
be affected by seasonal or climate conditions.

    (3) Large and medium municipal separate storm sewer systems. (i) 
Permits must be obtained for all discharges from large and medium 
municipal separate storm sewer systems.
    (ii) The Director may either issue one system-wide permit covering 
all discharges from municipal separate storm sewers within a large or 
medium municipal storm sewer system or issue distinct permits for 
appropriate categories of discharges within a large or medium municipal 
separate storm sewer system including, but not limited to: all 
discharges owned or operated by the same municipality; located within 
the same jurisdiction; all discharges within a system that discharge to 
the same watershed; discharges

[[Page 204]]

within a system that are similar in nature; or for individual discharges 
from municipal separate storm sewers within the system.
    (iii) The operator of a discharge from a municipal separate storm 
sewer which is part of a large or medium municipal separate storm sewer 
system must either:
    (A) Participate in a permit application (to be a permittee or a co-
permittee) with one or more other operators of discharges from the large 
or medium municipal storm sewer system which covers all, or a portion of 
all, discharges from the municipal separate storm sewer system;
    (B) Submit a distinct permit application which only covers 
discharges from the municipal separate storm sewers for which the 
operator is responsible; or
    (C) A regional authority may be responsible for submitting a permit 
application under the following guidelines:
    (1) The regional authority together with co-applicants shall have 
authority over a storm water management program that is in existence, or 
shall be in existence at the time part 1 of the application is due;
    (2) The permit applicant or co-applicants shall establish their 
ability to make a timely submission of part 1 and part 2 of the 
municipal application;
    (3) Each of the operators of municipal separate storm sewers within 
the systems described in paragraphs (b)(4) (i), (ii), and (iii) or 
(b)(7) (i), (ii), and (iii) of this section, that are under the purview 
of the designated regional authority, shall comply with the application 
requirements of paragraph (d) of this section.
    (iv) One permit application may be submitted for all or a portion of 
all municipal separate storm sewers within adjacent or interconnected 
large or medium municipal separate storm sewer systems. The Director may 
issue one system-wide permit covering all, or a portion of all municipal 
separate storm sewers in adjacent or interconnected large or medium 
municipal separate storm sewer systems.
    (v) Permits for all or a portion of all discharges from large or 
medium municipal separate storm sewer systems that are issued on a 
system-wide, jurisdiction-wide, watershed or other basis may specify 
different conditions relating to different discharges covered by the 
permit, including different management programs for different drainage 
areas which contribute storm water to the system.
    (vi) Co-permittees need only comply with permit conditions relating 
to discharges from the municipal separate storm sewers for which they 
are operators.
    (4) Discharges through large and medium municipal separate storm 
sewer systems. In addition to meeting the requirements of paragraph (c) 
of this section, an operator of a storm water discharge associated with 
industrial activity which discharges through a large or medium municipal 
separate storm sewer system shall submit, to the operator of the 
municipal separate storm sewer system receiving the discharge no later 
than May 15, 1991, or 180 days prior to commencing such discharge: the 
name of the facility; a contact person and phone number; the location of 
the discharge; a description, including Standard Industrial 
Classification, which best reflects the principal products or services 
provided by each facility; and any existing NPDES permit number.
    (5) Other municipal separate storm sewers. The Director may issue 
permits for municipal separate storm sewers that are designated under 
paragraph (a)(1)(v) of this section on a system-wide basis, 
jurisdiction-wide basis, watershed basis or other appropriate basis, or 
may issue permits for individual discharges.
    (6) Non-municipal separate storm sewers. For storm water discharges 
associated with industrial activity from point sources which discharge 
through a non-municipal or non-publicly owned separate storm sewer 
system, the Director, in his discretion, may issue: a single NPDES 
permit, with each discharger a co-permittee to a permit issued to the 
operator of the portion of the system that discharges into waters of the 
United States; or, individual permits to each discharger of storm water 
associated with industrial activity through the non-municipal conveyance 
system.

[[Page 205]]

    (i) All storm water discharges associated with industrial activity 
that discharge through a storm water discharge system that is not a 
municipal separate storm sewer must be covered by an individual permit, 
or a permit issued to the operator of the portion of the system that 
discharges to waters of the United States, with each discharger to the 
non-municipal conveyance a co-permittee to that permit.
    (ii) Where there is more than one operator of a single system of 
such conveyances, all operators of storm water discharges associated 
with industrial activity must submit applications.
    (iii) Any permit covering more than one operator shall identify the 
effluent limitations, or other permit conditions, if any, that apply to 
each operator.
    (7) Combined sewer systems. Conveyances that discharge storm water 
runoff combined with municipal sewage are point sources that must obtain 
NPDES permits in accordance with the procedures of Sec. 122.21 and are 
not subject to the provisions of this section.
    (8) Whether a discharge from a municipal separate storm sewer is or 
is not subject to regulation under this section shall have no bearing on 
whether the owner or operator of the discharge is eligible for funding 
under title II, title III or title VI of the Clean Water Act. See 40 CFR 
part 35, subpart I, appendix A(b)H.2.j.
    (9)(i) On and after October 1, 1994, for discharges composed 
entirely of storm water, that are not required by paragraph (a)(1) of 
this section to obtain a permit, operators shall be required to obtain a 
NPDES permit only if:
    (A) The discharge is from a small MS4 required to be regulated 
pursuant to Sec. 122.32;
    (B) The discharge is a storm water discharge associated with small 
construction activity pursuant to paragraph (b)(15) of this section;
    (C) The Director, or in States with approved NPDES programs either 
the Director or the EPA Regional Administrator, determines that storm 
water controls are needed for the discharge based on wasteload 
allocations that are part of ``total maximum daily loads'' (TMDLs) that 
address the pollutant(s) of concern; or
    (D) The Director, or in States with approved NPDES programs either 
the Director or the EPA Regional Administrator, determines that the 
discharge, or category of discharges within a geographic area, 
contributes to a violation of a water quality standard or is a 
significant contributor of pollutants to waters of the United States.
    (ii) Operators of small MS4s designated pursuant to paragraphs 
(a)(9)(i)(A), (a)(9)(i)(C), and (a)(9)(i)(D) of this section shall seek 
coverage under an NPDES permit in accordance with Sec. Sec. 122.33 
through 122.35. Operators of non-municipal sources designated pursuant 
to paragraphs (a)(9)(i)(B), (a)(9)(i)(C), and (a)(9)(i)(D) of this 
section shall seek coverage under an NPDES permit in accordance with 
paragraph (c)(1) of this section.
    (iii) Operators of storm water discharges designated pursuant to 
paragraphs (a)(9)(i)(C) and (a)(9)(i)(D) of this section shall apply to 
the Director for a permit within 180 days of receipt of notice, unless 
permission for a later date is granted by the Director (see Sec. 
124.52(c) of this chapter).
    (b) Definitions. (1) Co-permittee means a permittee to a NPDES 
permit that is only responsible for permit conditions relating to the 
discharge for which it is operator.
    (2) Illicit discharge means any discharge to a municipal separate 
storm sewer that is not composed entirely of storm water except 
discharges pursuant to a NPDES permit (other than the NPDES permit for 
discharges from the municipal separate storm sewer) and discharges 
resulting from fire fighting activities.
    (3) Incorporated place means the District of Columbia, or a city, 
town, township, or village that is incorporated under the laws of the 
State in which it is located.
    (4) Large municipal separate storm sewer system means all municipal 
separate storm sewers that are either:
    (i) Located in an incorporated place with a population of 250,000 or 
more as determined by the 1990 Decennial Census by the Bureau of the 
Census (Appendix F of this part); or
    (ii) Located in the counties listed in appendix H, except municipal 
separate

[[Page 206]]

storm sewers that are located in the incorporated places, townships or 
towns within such counties; or
    (iii) Owned or operated by a municipality other than those described 
in paragraph (b)(4) (i) or (ii) of this section and that are designated 
by the Director as part of the large or medium municipal separate storm 
sewer system due to the interrelationship between the discharges of the 
designated storm sewer and the discharges from municipal separate storm 
sewers described under paragraph (b)(4) (i) or (ii) of this section. In 
making this determination the Director may consider the following 
factors:
    (A) Physical interconnections between the municipal separate storm 
sewers;
    (B) The location of discharges from the designated municipal 
separate storm sewer relative to discharges from municipal separate 
storm sewers described in paragraph (b)(4)(i) of this section;
    (C) The quantity and nature of pollutants discharged to waters of 
the United States;
    (D) The nature of the receiving waters; and
    (E) Other relevant factors; or
    (iv) The Director may, upon petition, designate as a large municipal 
separate storm sewer system, municipal separate storm sewers located 
within the boundaries of a region defined by a storm water management 
regional authority based on a jurisdictional, watershed, or other 
appropriate basis that includes one or more of the systems described in 
paragraph (b)(4) (i), (ii), (iii) of this section.
    (5) Major municipal separate storm sewer outfall (or ``major 
outfall'') means a municipal separate storm sewer outfall that 
discharges from a single pipe with an inside diameter of 36 inches or 
more or its equivalent (discharge from a single conveyance other than 
circular pipe which is associated with a drainage area of more than 50 
acres); or for municipal separate storm sewers that receive storm water 
from lands zoned for industrial activity (based on comprehensive zoning 
plans or the equivalent), an outfall that discharges from a single pipe 
with an inside diameter of 12 inches or more or from its equivalent 
(discharge from other than a circular pipe associated with a drainage 
area of 2 acres or more).
    (6) Major outfall means a major municipal separate storm sewer 
outfall.
    (7) Medium municipal separate storm sewer system means all municipal 
separate storm sewers that are either:
    (i) Located in an incorporated place with a population of 100,000 or 
more but less than 250,000, as determined by the 1990 Decennial Census 
by the Bureau of the Census (Appendix G of this part); or
    (ii) Located in the counties listed in appendix I, except municipal 
separate storm sewers that are located in the incorporated places, 
townships or towns within such counties; or
    (iii) Owned or operated by a municipality other than those described 
in paragraph (b)(7) (i) or (ii) of this section and that are designated 
by the Director as part of the large or medium municipal separate storm 
sewer system due to the interrelationship between the discharges of the 
designated storm sewer and the discharges from municipal separate storm 
sewers described under paragraph (b)(7) (i) or (ii) of this section. In 
making this determination the Director may consider the following 
factors:
    (A) Physical interconnections between the municipal separate storm 
sewers;
    (B) The location of discharges from the designated municipal 
separate storm sewer relative to discharges from municipal separate 
storm sewers described in paragraph (b)(7)(i) of this section;
    (C) The quantity and nature of pollutants discharged to waters of 
the United States;
    (D) The nature of the receiving waters; or
    (E) Other relevant factors; or
    (iv) The Director may, upon petition, designate as a medium 
municipal separate storm sewer system, municipal separate storm sewers 
located within the boundaries of a region defined by a storm water 
management regional authority based on a jurisdictional, watershed, or 
other appropriate basis that includes one or more of the systems 
described in paragraphs (b)(7) (i), (ii), (iii) of this section.

[[Page 207]]

    (8) Municipal separate storm sewer means a conveyance or system of 
conveyances (including roads with drainage systems, municipal streets, 
catch basins, curbs, gutters, ditches, man-made channels, or storm 
drains):
    (i) Owned or operated by a State, city, town, borough, county, 
parish, district, association, or other public body (created by or 
pursuant to State law) having jurisdiction over disposal of sewage, 
industrial wastes, storm water, or other wastes, including special 
districts under State law such as a sewer district, flood control 
district or drainage district, or similar entity, or an Indian tribe or 
an authorized Indian tribal organization, or a designated and approved 
management agency under section 208 of the CWA that discharges to waters 
of the United States;
    (ii) Designed or used for collecting or conveying storm water;
    (iii) Which is not a combined sewer; and
    (iv) Which is not part of a Publicly Owned Treatment Works (POTW) as 
defined at 40 CFR 122.2.
    (9) Outfall means a point source as defined by 40 CFR 122.2 at the 
point where a municipal separate storm sewer discharges to waters of the 
United States and does not include open conveyances connecting two 
municipal separate storm sewers, or pipes, tunnels or other conveyances 
which connect segments of the same stream or other waters of the United 
States and are used to convey waters of the United States.
    (10) Overburden means any material of any nature, consolidated or 
unconsolidated, that overlies a mineral deposit, excluding topsoil or 
similar naturally-occurring surface materials that are not disturbed by 
mining operations.
    (11) Runoff coefficient means the fraction of total rainfall that 
will appear at a conveyance as runoff.
    (12) Significant materials includes, but is not limited to: raw 
materials; fuels; materials such as solvents, detergents, and plastic 
pellets; finished materials such as metallic products; raw materials 
used in food processing or production; hazardous substances designated 
under section 101(14) of CERCLA; any chemical the facility is required 
to report pursuant to section 313 of title III of SARA; fertilizers; 
pesticides; and waste products such as ashes, slag and sludge that have 
the potential to be released with storm water discharges.
    (13) Storm water means storm water runoff, snow melt runoff, and 
surface runoff and drainage.
    (14) Storm water discharge associated with industrial activity means 
the discharge from any conveyance that is used for collecting and 
conveying storm water and that is directly related to manufacturing, 
processing or raw materials storage areas at an industrial plant. The 
term does not include discharges from facilities or activities excluded 
from the NPDES program under this part 122. For the categories of 
industries identified in this section, the term includes, but is not 
limited to, storm water discharges from industrial plant yards; 
immediate access roads and rail lines used or traveled by carriers of 
raw materials, manufactured products, waste material, or by-products 
used or created by the facility; material handling sites; refuse sites; 
sites used for the application or disposal of process waste waters (as 
defined at part 401 of this chapter); sites used for the storage and 
maintenance of material handling equipment; sites used for residual 
treatment, storage, or disposal; shipping and receiving areas; 
manufacturing buildings; storage areas (including tank farms) for raw 
materials, and intermediate and final products; and areas where 
industrial activity has taken place in the past and significant 
materials remain and are exposed to storm water. For the purposes of 
this paragraph, material handling activities include storage, loading 
and unloading, transportation, or conveyance of any raw material, 
intermediate product, final product, by-product or waste product. The 
term excludes areas located on plant lands separate from the plant's 
industrial activities, such as office buildings and accompanying parking 
lots as long as the drainage from the excluded areas is not mixed with 
storm water drained from the above described areas. Industrial 
facilities (including industrial facilities that are federally, State, 
or municipally owned or operated that meet the description of the 
facilities listed in paragraphs (b)(14)(i) through (xi) of this

[[Page 208]]

section) include those facilities designated under the provisions of 
paragraph (a)(1)(v) of this section. The following categories of 
facilities are considered to be engaging in ``industrial activity'' for 
purposes of paragraph (b)(14):
    (i) Facilities subject to storm water effluent limitations 
guidelines, new source performance standards, or toxic pollutant 
effluent standards under 40 CFR subchapter N (except facilities with 
toxic pollutant effluent standards which are exempted under category 
(xi) in paragraph (b)(14) of this section);
    (ii) Facilities classified as Standard Industrial Classifications 24 
(except 2434), 26 (except 265 and 267), 28 (except 283), 29, 31l, 32 
(except 323), 33, 344l, 373;
    (iii) Facilities classified as Standard Industrial Classifications 
10 through 14 (mineral industry) including active or inactive mining 
operations (except for areas of coal mining operations no longer meeting 
the definition of a reclamation area under 40 CFR 434.11(1) because the 
performance bond issued to the facility by the appropriate SMCRA 
authority has been released, or except for areas of non-coal mining 
operations which have been released from applicable State or Federal 
reclamation requirements after December 17, 1990) and oil and gas 
exploration, production, processing, or treatment operations, or 
transmission facilities that discharge storm water contaminated by 
contact with or that has come into contact with, any overburden, raw 
material, intermediate products, finished products, byproducts or waste 
products located on the site of such operations; (inactive mining 
operations are mining sites that are not being actively mined, but which 
have an identifiable owner/operator; inactive mining sites do not 
include sites where mining claims are being maintained prior to 
disturbances associated with the extraction, beneficiation, or 
processing of mined materials, nor sites where minimal activities are 
undertaken for the sole purpose of maintaining a mining claim);
    (iv) Hazardous waste treatment, storage, or disposal facilities, 
including those that are operating under interim status or a permit 
under subtitle C of RCRA;
    (v) Landfills, land application sites, and open dumps that receive 
or have received any industrial wastes (waste that is received from any 
of the facilities described under this subsection) including those that 
are subject to regulation under subtitle D of RCRA;
    (vi) Facilities involved in the recycling of materials, including 
metal scrapyards, battery reclaimers, salvage yards, and automobile 
junkyards, including but limited to those classified as Standard 
Industrial Classification 5015 and 5093;
    (vii) Steam electric power generating facilities, including coal 
handling sites;
    (viii) Transportation facilities classified as Standard Industrial 
Classifications 40, 41, 42 (except 4221-25), 43, 44, 45, and 5171 which 
have vehicle maintenance shops, equipment cleaning operations, or 
airport deicing operations. Only those portions of the facility that are 
either involved in vehicle maintenance (including vehicle 
rehabilitation, mechanical repairs, painting, fueling, and lubrication), 
equipment cleaning operations, airport deicing operations, or which are 
otherwise identified under paragraphs (b)(14) (i)-(vii) or (ix)-(xi) of 
this section are associated with industrial activity;
    (ix) Treatment works treating domestic sewage or any other sewage 
sludge or wastewater treatment device or system, used in the storage 
treatment, recycling, and reclamation of municipal or domestic sewage, 
including land dedicated to the disposal of sewage sludge that are 
located within the confines of the facility, with a design flow of 1.0 
mgd or more, or required to have an approved pretreatment program under 
40 CFR part 403. Not included are farm lands, domestic gardens or lands 
used for sludge management where sludge is beneficially reused and which 
are not physically located in the confines of the facility, or areas 
that are in compliance with section 405 of the CWA;
    (x) Construction activity including clearing, grading and 
excavation, except operations that result in the disturbance of less 
than five acres of total land area. Construction activity also includes 
the disturbance of less than five acres of total land area that is a

[[Page 209]]

part of a larger common plan of development or sale if the larger common 
plan will ultimately disturb five acres or more;
    (xi) Facilities under Standard Industrial Classifications 20, 21, 
22, 23, 2434, 25, 265, 267, 27, 283, 285, 30, 31 (except 311), 323, 34 
(except 3441), 35, 36, 37 (except 373), 38, 39, and 4221-25;
    (15) Storm water discharge associated with small construction 
activity means the discharge of storm water from:
    (i) Construction activities including clearing, grading, and 
excavating that result in land disturbance of equal to or greater than 
one acre and less than five acres. Small construction activity also 
includes the disturbance of less than one acre of total land area that 
is part of a larger common plan of development or sale if the larger 
common plan will ultimately disturb equal to or greater than one and 
less than five acres. Small construction activity does not include 
routine maintenance that is performed to maintain the original line and 
grade, hydraulic capacity, or original purpose of the facility. The 
Director may waive the otherwise applicable requirements in a general 
permit for a storm water discharge from construction activities that 
disturb less than five acres where:
    (A) The value of the rainfall erosivity factor (``R'' in the Revised 
Universal Soil Loss Equation) is less than five during the period of 
construction activity. The rainfall erosivity factor is determined in 
accordance with Chapter 2 of Agriculture Handbook Number 703, Predicting 
Soil Erosion by Water: A Guide to Conservation Planning With the Revised 
Universal Soil Loss Equation (RUSLE), pages 21-64, dated January 1997. 
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. Copies 
may be obtained from EPA's Water Resource Center, Mail Code RC4100, 401 
M St. SW, Washington, DC 20460. A copy is also available for inspection 
at the U.S. EPA Water Docket , 401 M Street SW, Washington, DC 20460, or 
at the 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. An operator must certify to 
the Director that the construction activity will take place during a 
period when the value of the rainfall erosivity factor is less than 
five; or
    (B) Storm water controls are not needed based on a ``total maximum 
daily load'' (TMDL) approved or established by EPA that addresses the 
pollutant(s) of concern or, for non-impaired waters that do not require 
TMDLs, an equivalent analysis that determines allocations for small 
construction sites for the pollutant(s) of concern or that determines 
that such allocations are not needed to protect water quality based on 
consideration of existing in-stream concentrations, expected growth in 
pollutant contributions from all sources, and a margin of safety. For 
the purpose of this paragraph, the pollutant(s) of concern include 
sediment or a parameter that addresses sediment (such as total suspended 
solids, turbidity or siltation) and any other pollutant that has been 
identified as a cause of impairment of any water body that will receive 
a discharge from the construction activity. The operator must certify to 
the Director that the construction activity will take place, and storm 
water discharges will occur, within the drainage area addressed by the 
TMDL or equivalent analysis.
    (ii) Any other construction activity designated by the Director, or 
in States with approved NPDES programs either the Director or the EPA 
Regional Administrator, based on the potential for contribution to a 
violation of a water quality standard or for significant contribution of 
pollutants to waters of the United States.

 Exhibit 1 to Sec.  122.26(b)(15)--Summary of Coverage of ``Storm Water
Discharges Associated with Small Construction Activity'' Under the NPDES
                           Storm Water Program
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Automatic Designation:          Construction
 Required Nationwide Coverage.  activities that result in a land
                                disturbance of equal to or greater than
                                one acre and less than five acres.

[[Page 210]]

 
                                Construction
                                activities disturbing less than one acre
                                if part of a larger common plan of
                                development or sale with a planned
                                disturbance of equal to or greater than
                                one acre and less than five acres. (see
                                Sec.  122.26(b)(15)(i).)
Potential Designation:          Construction
 Optional Evaluation and        activities that result in a land
 Designation by the NPDES       disturbance of less than one acre based
 Permitting Authority or EPA    on the potential for contribution to a
 Regional Administrator.        violation of a water quality standard or
                                for significant contribution of
                                pollutants. (see Sec.
                                122.26(b)(15)(ii).)
Potential Waiver: Waiver from  Any automatically designated construction
 Requirements as Determined     activity where the operator certifies:
 by the NPDES Permitting        (1) A rainfall erosivity factor of less
 Authority..                    than five, or (2) That the activity will
                                occur within an area where controls are
                                not needed based on a TMDL or, for non-
                                impaired waters that do not require a
                                TMDL, an equivalent analysis for the
                                pollutant(s) of concern. (see Sec.
                                122.26(b)(15)(i).)
------------------------------------------------------------------------

    (16) Small municipal separate storm sewer system means all separate 
storm sewers that are:
    (i) Owned or operated by the United States, a State, city, town, 
borough, county, parish, district, association, or other public body 
(created by or pursuant to State law) having jurisdiction over disposal 
of sewage, industrial wastes, storm water, or other wastes, including 
special districts under State law such as a sewer district, flood 
control district or drainage district, or similar entity, or an Indian 
tribe or an authorized Indian tribal organization, or a designated and 
approved management agency under section 208 of the CWA that discharges 
to waters of the United States.
    (ii) Not defined as ``large'' or ``medium'' municipal separate storm 
sewer systems pursuant to paragraphs (b)(4) and (b)(7) of this section, 
or designated under paragraph (a)(1)(v) of this section.
    (iii) This term includes systems similar to separate storm sewer 
systems in municipalities, such as systems at military bases, large 
hospital or prison complexes, and highways and other thoroughfares. The 
term does not include separate storm sewers in very discrete areas, such 
as individual buildings.
    (17) Small MS4 means a small municipal separate storm sewer system.
    (18) Municipal separate storm sewer system means all separate storm 
sewers that are defined as ``large'' or ``medium'' or ``small'' 
municipal separate storm sewer systems pursuant to paragraphs (b)(4), 
(b)(7), and (b)(16) of this section, or designated under paragraph 
(a)(1)(v) of this section.
    (19) MS4 means a municipal separate storm sewer system.
    (20) Uncontrolled sanitary landfill means a landill or open dump, 
whether in operation or closed, that does not meet the requirements for 
runon or runoff controls established pursuant to subtitle D of the Solid 
Waste Disposal Act.
    (c) Application requirements for storm water discharges associated 
with industrial activity and storm water discharges associated with 
small construction activity--(1) Individual application. Dischargers of 
storm water associated with industrial activity and with small 
construction activity are required to apply for an individual permit or 
seek coverage under a promulgated storm water general permit. Facilities 
that are required to obtain an individual permit or any dischage of 
storm water which the Director is evaluating for designation (see Sec. 
124.52(c) of this chapter) under paragraph (a)(1)(v) of this section and 
is not a municipal storm sewer, shall submit an NPDES application in 
accordance with the requirements of Sec. 122.21 as modified and 
supplemented by the provisions of this paragraph.
    (i) Except as provided in Sec. 122.26(c)(1) (ii)-(iv), the operator 
of a storm water discharge associated with industrial activity subject 
to this section shall provide:

[[Page 211]]

    (A) A site map showing topography (or indicating the outline of 
drainage areas served by the outfall(s) covered in the application if a 
topographic map is unavailable) of the facility including: each of its 
drainage and discharge structures; the drainage area of each storm water 
outfall; paved areas and buildings within the drainage area of each 
storm water outfall, each past or present area used for outdoor storage 
or disposal of significant materials, each existing structural control 
measure to reduce pollutants in storm water runoff, materials loading 
and access areas, areas where pesticides, herbicides, soil conditioners 
and fertilizers are applied, each of its hazardous waste treatment, 
storage or disposal facilities (including each area not required to have 
a RCRA permit which is used for accumulating hazardous waste under 40 
CFR 262.34); each well where fluids from the facility are injected 
underground; springs, and other surface water bodies which receive storm 
water discharges from the facility;
    (B) An estimate of the area of impervious surfaces (including paved 
areas and building roofs) and the total area drained by each outfall 
(within a mile radius of the facility) and a narrative description of 
the following: Significant materials that in the three years prior to 
the submittal of this application have been treated, stored or disposed 
in a manner to allow exposure to storm water; method of treatment, 
storage or disposal of such materials; materials management practices 
employed, in the three years prior to the submittal of this application, 
to minimize contact by these materials with storm water runoff; 
materials loading and access areas; the location, manner and frequency 
in which pesticides, herbicides, soil conditioners and fertilizers are 
applied; the location and a description of existing structural and non-
structural control measures to reduce pollutants in storm water runoff; 
and a description of the treatment the storm water receives, including 
the ultimate disposal of any solid or fluid wastes other than by 
discharge;
    (C) A certification that all outfalls that should contain storm 
water discharges associated with industrial activity have been tested or 
evaluated for the presence of non-storm water discharges which are not 
covered by a NPDES permit; tests for such non-storm water discharges may 
include smoke tests, fluorometric dye tests, analysis of accurate 
schematics, as well as other appropriate tests. The certification shall 
include a description of the method used, the date of any testing, and 
the on-site drainage points that were directly observed during a test;
    (D) Existing information regarding significant leaks or spills of 
toxic or hazardous pollutants at the facility that have taken place 
within the three years prior to the submittal of this application;
    (E) Quantitative data based on samples collected during storm events 
and collected in accordance with Sec. 122.21 of this part from all 
outfalls containing a storm water discharge associated with industrial 
activity for the following parameters:
    (1) Any pollutant limited in an effluent guideline to which the 
facility is subject;
    (2) Any pollutant listed in the facility's NPDES permit for its 
process wastewater (if the facility is operating under an existing NPDES 
permit);
    (3) Oil and grease, pH, BOD5, COD, TSS, total phosphorus, total 
Kjeldahl nitrogen, and nitrate plus nitrite nitrogen;
    (4) Any information on the discharge required under Sec. 
122.21(g)(7)(vi) and (vii);
    (5) Flow measurements or estimates of the flow rate, and the total 
amount of discharge for the storm event(s) sampled, and the method of 
flow measurement or estimation; and
    (6) The date and duration (in hours) of the storm event(s) sampled, 
rainfall measurements or estimates of the storm event (in inches) which 
generated the sampled runoff and the duration between the storm event 
sampled and the end of the previous measurable (greater than 0.1 inch 
rainfall) storm event (in hours);
    (F) Operators of a discharge which is composed entirely of storm 
water are exempt from the requirements of Sec. 122.21 (g)(2), (g)(3), 
(g)(4), (g)(5), (g)(7)(iii), (g)(7)(iv), (g)(7)(v), and (g)(7)(viii); 
and

[[Page 212]]

    (G) Operators of new sources or new discharges (as defined in Sec. 
122.2 of this part) which are composed in part or entirely of storm 
water must include estimates for the pollutants or parameters listed in 
paragraph (c)(1)(i)(E) of this section instead of actual sampling data, 
along with the source of each estimate. Operators of new sources or new 
discharges composed in part or entirely of storm water must provide 
quantitative data for the parameters listed in paragraph (c)(1)(i)(E) of 
this section within two years after commencement of discharge, unless 
such data has already been reported under the monitoring requirements of 
the NPDES permit for the discharge. Operators of a new source or new 
discharge which is composed entirely of storm water are exempt from the 
requirements of Sec. 122.21 (k)(3)(ii), (k)(3)(iii), and (k)(5).
    (ii) An operator of an existing or new storm water discharge that is 
associated with industrial activity solely under paragraph (b)(14)(x) of 
this section or is associated with small construction activity solely 
under paragraph (b)(15) of this section, is exempt from the requirements 
of Sec. 122.21(g) and paragraph (c)(1)(i) of this section. Such 
operator shall provide a narrative description of:
    (A) The location (including a map) and the nature of the 
construction activity;
    (B) The total area of the site and the area of the site that is 
expected to undergo excavation during the life of the permit;
    (C) Proposed measures, including best management practices, to 
control pollutants in storm water discharges during construction, 
including a brief description of applicable State and local erosion and 
sediment control requirements;
    (D) Proposed measures to control pollutants in storm water 
discharges that will occur after construction operations have been 
completed, including a brief description of applicable State or local 
erosion and sediment control requirements;
    (E) An estimate of the runoff coefficient of the site and the 
increase in impervious area after the construction addressed in the 
permit application is completed, the nature of fill material and 
existing data describing the soil or the quality of the discharge; and
    (F) The name of the receiving water.
    (iii) The operator of an existing or new discharge composed entirely 
of storm water from an oil or gas exploration, production, processing, 
or treatment operation, or transmission facility is not required to 
submit a permit application in accordance with paragraph (c)(1)(i) of 
this section, unless the facility:
    (A) Has had a discharge of storm water resulting in the discharge of 
a reportable quantity for which notification is or was required pursuant 
to 40 CFR 117.21 or 40 CFR 302.6 at anytime since November 16, 1987; or
    (B) Has had a discharge of storm water resulting in the discharge of 
a reportable quantity for which notification is or was required pursuant 
to 40 CFR 110.6 at any time since November 16, 1987; or
    (C) Contributes to a violation of a water quality standard.
    (iv) The operator of an existing or new discharge composed entirely 
of storm water from a mining operation is not required to submit a 
permit application unless the discharge has come into contact with, any 
overburden, raw material, intermediate products, finished product, 
byproduct or waste products located on the site of such operations.
    (v) Applicants shall provide such other information the Director may 
reasonably require under Sec. 122.21(g)(13) of this part to determine 
whether to issue a permit and may require any facility subject to 
paragraph (c)(1)(ii) of this section to comply with paragraph (c)(1)(i) 
of this section.
    (2) [Reserved]
    (d) Application requirements for large and medium municipal separate 
storm sewer discharges. The operator of a discharge from a large or 
medium municipal separate storm sewer or a municipal separate storm 
sewer that is designated by the Director under paragraph (a)(1)(v) of 
this section, may submit a jurisdiction-wide or system-wide permit 
application. Where more than one public entity owns or operates a 
municipal separate storm sewer within a geographic area (including 
adjacent

[[Page 213]]

or interconnected municipal separate storm sewer systems), such 
operators may be a coapplicant to the same application. Permit 
applications for discharges from large and medium municipal storm sewers 
or municipal storm sewers designated under paragraph (a)(1)(v) of this 
section shall include;
    (1) Part 1. Part 1 of the application shall consist of;
    (i) General information. The applicants' name, address, telephone 
number of contact person, ownership status and status as a State or 
local government entity.
    (ii) Legal authority. A description of existing legal authority to 
control discharges to the municipal separate storm sewer system. When 
existing legal authority is not sufficient to meet the criteria provided 
in paragraph (d)(2)(i) of this section, the description shall list 
additional authorities as will be necessary to meet the criteria and 
shall include a schedule and commitment to seek such additional 
authority that will be needed to meet the criteria.
    (iii) Source identification. (A) A description of the historic use 
of ordinances, guidance or other controls which limited the discharge of 
non-storm water discharges to any Publicly Owned Treatment Works serving 
the same area as the municipal separate storm sewer system.
    (B) A USGS 7.5 minute topographic map (or equivalent topographic map 
with a scale between 1:10,000 and 1:24,000 if cost effective) extending 
one mile beyond the service boundaries of the municipal storm sewer 
system covered by the permit application. The following information 
shall be provided:
    (1) The location of known municipal storm sewer system outfalls 
discharging to waters of the United States;
    (2) A description of the land use activities (e.g. divisions 
indicating undeveloped, residential, commercial, agricultural and 
industrial uses) accompanied with estimates of population densities and 
projected growth for a ten year period within the drainage area served 
by the separate storm sewer. For each land use type, an estimate of an 
average runoff coefficient shall be provided;
    (3) The location and a description of the activities of the facility 
of each currently operating or closed municipal landfill or other 
treatment, storage or disposal facility for municipal waste;
    (4) The location and the permit number of any known discharge to the 
municipal storm sewer that has been issued a NPDES permit;
    (5) The location of major structural controls for storm water 
discharge (retention basins, detention basins, major infiltration 
devices, etc.); and
    (6) The identification of publicly owned parks, recreational areas, 
and other open lands.
    (iv) Discharge characterization. (A) Monthly mean rain and snow fall 
estimates (or summary of weather bureau data) and the monthly average 
number of storm events.
    (B) Existing quantitative data describing the volume and quality of 
discharges from the municipal storm sewer, including a description of 
the outfalls sampled, sampling procedures and analytical methods used.
    (C) A list of water bodies that receive discharges from the 
municipal separate storm sewer system, including downstream segments, 
lakes and estuaries, where pollutants from the system discharges may 
accumulate and cause water degradation and a brief description of known 
water quality impacts. At a minimum, the description of impacts shall 
include a description of whether the water bodies receiving such 
discharges have been:
    (1) Assessed and reported in section 305(b) reports submitted by the 
State, the basis for the assessment (evaluated or monitored), a summary 
of designated use support and attainment of Clean Water Act (CWA) goals 
(fishable and swimmable waters), and causes of nonsupport of designated 
uses;
    (2) Listed under section 304(l)(1)(A)(i), section 304(l)(1)(A)(ii), 
or section 304(l)(1)(B) of the CWA that is not expected to meet water 
quality standards or water quality goals;
    (3) Listed in State Nonpoint Source Assessments required by section 
319(a) of the CWA that, without additional action to control nonpoint 
sources of pollution, cannot reasonably be expected to attain or 
maintain water

[[Page 214]]

quality standards due to storm sewers, construction, highway maintenance 
and runoff from municipal landfills and municipal sludge adding 
significant pollution (or contributing to a violation of water quality 
standards);
    (4) Identified and classified according to eutrophic condition of 
publicly owned lakes listed in State reports required under section 
314(a) of the CWA (include the following: A description of those 
publicly owned lakes for which uses are known to be impaired; a 
description of procedures, processes and methods to control the 
discharge of pollutants from municipal separate storm sewers into such 
lakes; and a description of methods and procedures to restore the 
quality of such lakes);
    (5) Areas of concern of the Great Lakes identified by the 
International Joint Commission;
    (6) Designated estuaries under the National Estuary Program under 
section 320 of the CWA;
    (7) Recognized by the applicant as highly valued or sensitive 
waters;
    (8) Defined by the State or U.S. Fish and Wildlife Services's 
National Wetlands Inventory as wetlands; and
    (9) Found to have pollutants in bottom sediments, fish tissue or 
biosurvey data.
    (D) Field screening. Results of a field screening analysis for 
illicit connections and illegal dumping for either selected field 
screening points or major outfalls covered in the permit application. At 
a minimum, a screening analysis shall include a narrative description, 
for either each field screening point or major outfall, of visual 
observations made during dry weather periods. If any flow is observed, 
two grab samples shall be collected during a 24 hour period with a 
minimum period of four hours between samples. For all such samples, a 
narrative description of the color, odor, turbidity, the presence of an 
oil sheen or surface scum as well as any other relevant observations 
regarding the potential presence of non-storm water discharges or 
illegal dumping shall be provided. In addition, a narrative description 
of the results of a field analysis using suitable methods to estimate 
pH, total chlorine, total copper, total phenol, and detergents (or 
surfactants) shall be provided along with a description of the flow 
rate. Where the field analysis does not involve analytical methods 
approved under 40 CFR part 136, the applicant shall provide a 
description of the method used including the name of the manufacturer of 
the test method along with the range and accuracy of the test. Field 
screening points shall be either major outfalls or other outfall points 
(or any other point of access such as manholes) randomly located 
throughout the storm sewer system by placing a grid over a drainage 
system map and identifying those cells of the grid which contain a 
segment of the storm sewer system or major outfall. The field screening 
points shall be established using the following guidelines and criteria:
    (1) A grid system consisting of perpendicular north-south and east-
west lines spaced \1/4\ mile apart shall be overlayed on a map of the 
municipal storm sewer system, creating a series of cells;
    (2) All cells that contain a segment of the storm sewer system shall 
be identified; one field screening point shall be selected in each cell; 
major outfalls may be used as field screening points;
    (3) Field screening points should be located downstream of any 
sources of suspected illegal or illicit activity;
    (4) Field screening points shall be located to the degree 
practicable at the farthest manhole or other accessible location 
downstream in the system, within each cell; however, safety of personnel 
and accessibility of the location should be considered in making this 
determination;
    (5) Hydrological conditions; total drainage area of the site; 
population density of the site; traffic density; age of the structures 
or buildings in the area; history of the area; and land use types;
    (6) For medium municipal separate storm sewer systems, no more than 
250 cells need to have identified field screening points; in large 
municipal separate storm sewer systems, no more than 500 cells need to 
have identified field screening points; cells established by the grid 
that contain no storm sewer segments will be eliminated from 
consideration; if fewer than 250 cells in medium municipal sewers are 
created,

[[Page 215]]

and fewer than 500 in large systems are created by the overlay on the 
municipal sewer map, then all those cells which contain a segment of the 
sewer system shall be subject to field screening (unless access to the 
separate storm sewer system is impossible); and
    (7) Large or medium municipal separate storm sewer systems which are 
unable to utilize the procedures described in paragraphs (d)(1)(iv)(D) 
(1) through (6) of this section, because a sufficiently detailed map of 
the separate storm sewer systems is unavailable, shall field screen no 
more than 500 or 250 major outfalls respectively (or all major outfalls 
in the system, if less); in such circumstances, the applicant shall 
establish a grid system consisting of north-south and east-west lines 
spaced \1/4\ mile apart as an overlay to the boundaries of the municipal 
storm sewer system, thereby creating a series of cells; the applicant 
will then select major outfalls in as many cells as possible until at 
least 500 major outfalls (large municipalities) or 250 major outfalls 
(medium municipalities) are selected; a field screening analysis shall 
be undertaken at these major outfalls.
    (E) Characterization plan. Information and a proposed program to 
meet the requirements of paragraph (d)(2)(iii) of this section. Such 
description shall include: the location of outfalls or field screening 
points appropriate for representative data collection under paragraph 
(d)(2)(iii)(A) of this section, a description of why the outfall or 
field screening point is representative, the seasons during which 
sampling is intended, a description of the sampling equipment. The 
proposed location of outfalls or field screening points for such 
sampling should reflect water quality concerns (see paragraph 
(d)(1)(iv)(C) of this section) to the extent practicable.
    (v) Management programs. (A) A description of the existing 
management programs to control pollutants from the municipal separate 
storm sewer system. The description shall provide information on 
existing structural and source controls, including operation and 
maintenance measures for structural controls, that are currently being 
implemented. Such controls may include, but are not limited to: 
Procedures to control pollution resulting from construction activities; 
floodplain management controls; wetland protection measures; best 
management practices for new subdivisions; and emergency spill response 
programs. The description may address controls established under State 
law as well as local requirements.
    (B) A description of the existing program to identify illicit 
connections to the municipal storm sewer system. The description should 
include inspection procedures and methods for detecting and preventing 
illicit discharges, and describe areas where this program has been 
implemented.
    (vi) Fiscal resources. (A) A description of the financial resources 
currently available to the municipality to complete part 2 of the permit 
application. A description of the municipality's budget for existing 
storm water programs, including an overview of the municipality's 
financial resources and budget, including overall indebtedness and 
assets, and sources of funds for storm water programs.
    (2) Part 2. Part 2 of the application shall consist of:
    (i) Adequate legal authority. A demonstration that the applicant can 
operate pursuant to legal authority established by statute, ordinance or 
series of contracts which authorizes or enables the applicant at a 
minimum to:
    (A) Control through ordinance, permit, contract, order or similar 
means, the contribution of pollutants to the municipal storm sewer by 
storm water discharges associated with industrial activity and the 
quality of storm water discharged from sites of industrial activity;
    (B) Prohibit through ordinance, order or similar means, illicit 
discharges to the municipal separate storm sewer;
    (C) Control through ordinance, order or similar means the discharge 
to a municipal separate storm sewer of spills, dumping or disposal of 
materials other than storm water;
    (D) Control through interagency agreements among coapplicants the 
contribution of pollutants from one portion of the municipal system to 
another portion of the municipal system;

[[Page 216]]

    (E) Require compliance with conditions in ordinances, permits, 
contracts or orders; and
    (F) Carry out all inspection, surveillance and monitoring procedures 
necessary to determine compliance and noncompliance with permit 
conditions including the prohibition on illicit discharges to the 
municipal separate storm sewer.
    (ii) Source identification. The location of any major outfall that 
discharges to waters of the United States that was not reported under 
paragraph (d)(1)(iii)(B)(1) of this section. Provide an inventory, 
organized by watershed of the name and address, and a description (such 
as SIC codes) which best reflects the principal products or services 
provided by each facility which may discharge, to the municipal separate 
storm sewer, storm water associated with industrial activity;
    (iii) Characterization data. When ``quantitative data'' for a 
pollutant are required under paragraph (d)(2)(iii)(A)(3) of this 
section, the applicant must collect a sample of effluent in accordance 
with 40 CFR 122.21(g)(7) and analyze it for the pollutant in accordance 
with analytical methods approved under part 136 of this chapter. When no 
analytical method is approved the applicant may use any suitable method 
but must provide a description of the method. The applicant must provide 
information characterizing the quality and quantity of discharges 
covered in the permit application, including:
    (A) Quantitative data from representative outfalls designated by the 
Director (based on information received in part 1 of the application, 
the Director shall designate between five and ten outfalls or field 
screening points as representative of the commercial, residential and 
industrial land use activities of the drainage area contributing to the 
system or, where there are less than five outfalls covered in the 
application, the Director shall designate all outfalls) developed as 
follows:
    (1) For each outfall or field screening point designated under this 
subparagraph, samples shall be collected of storm water discharges from 
three storm events occurring at least one month apart in accordance with 
the requirements at Sec. 122.21(g)(7) (the Director may allow 
exemptions to sampling three storm events when climatic conditions 
create good cause for such exemptions);
    (2) A narrative description shall be provided of the date and 
duration of the storm event(s) sampled, rainfall estimates of the storm 
event which generated the sampled discharge and the duration between the 
storm event sampled and the end of the previous measurable (greater than 
0.1 inch rainfall) storm event;
    (3) For samples collected and described under paragraphs (d)(2)(iii) 
(A)(1) and (A)(2) of this section, quantitative data shall be provided 
for: the organic pollutants listed in Table II; the pollutants listed in 
Table III (toxic metals, cyanide, and total phenols) of appendix D of 40 
CFR part 122, and for the following pollutants:

Total suspended solids (TSS)
Total dissolved solids (TDS)
COD
BOD5
Oil and grease
Fecal coliform
Fecal streptococcus
pH
Total Kjeldahl nitrogen
Nitrate plus nitrite
Dissolved phosphorus
Total ammonia plus organic nitrogen
Total phosphorus

    (4) Additional limited quantitative data required by the Director 
for determining permit conditions (the Director may require that 
quantitative data shall be provided for additional parameters, and may 
establish sampling conditions such as the location, season of sample 
collection, form of precipitation (snow melt, rainfall) and other 
parameters necessary to insure representativeness);
    (B) Estimates of the annual pollutant load of the cumulative 
discharges to waters of the United States from all identified municipal 
outfalls and the event mean concentration of the cumulative discharges 
to waters of the United States from all identified municipal outfalls 
during a storm event (as described under Sec. 122.21(c)(7)) for 
BOD5, COD, TSS, dissolved solids, total nitrogen, total 
ammonia plus organic nitrogen, total phosphorus, dissolved phosphorus, 
cadmium, copper, lead,

[[Page 217]]

and zinc. Estimates shall be accompanied by a description of the 
procedures for estimating constituent loads and concentrations, 
including any modelling, data analysis, and calculation methods;
    (C) A proposed schedule to provide estimates for each major outfall 
identified in either paragraph (d)(2)(ii) or (d)(1)(iii)(B)(1) of this 
section of the seasonal pollutant load and of the event mean 
concentration of a representative storm for any constituent detected in 
any sample required under paragraph (d)(2)(iii)(A) of this section; and
    (D) A proposed monitoring program for representative data collection 
for the term of the permit that describes the location of outfalls or 
field screening points to be sampled (or the location of instream 
stations), why the location is representative, the frequency of 
sampling, parameters to be sampled, and a description of sampling 
equipment.
    (iv) Proposed management program. A proposed management program 
covers the duration of the permit. It shall include a comprehensive 
planning process which involves public participation and where necessary 
intergovernmental coordination, to reduce the discharge of pollutants to 
the maximum extent practicable using management practices, control 
techniques and system, design and engineering methods, and such other 
provisions which are appropriate. The program shall also include a 
description of staff and equipment available to implement the program. 
Separate proposed programs may be submitted by each coapplicant. 
Proposed programs may impose controls on a systemwide basis, a watershed 
basis, a jurisdiction basis, or on individual outfalls. Proposed 
programs will be considered by the Director when developing permit 
conditions to reduce pollutants in discharges to the maximum extent 
practicable. Proposed management programs shall describe priorities for 
implementing controls. Such programs shall be based on:
    (A) A description of structural and source control measures to 
reduce pollutants from runoff from commercial and residential areas that 
are discharged from the municipal storm sewer system that are to be 
implemented during the life of the permit, accompanied with an estimate 
of the expected reduction of pollutant loads and a proposed schedule for 
implementing such controls. At a minimum, the description shall include:
    (1) A description of maintenance activities and a maintenance 
schedule for structural controls to reduce pollutants (including 
floatables) in discharges from municipal separate storm sewers;
    (2) A description of planning procedures including a comprehensive 
master plan to develop, implement and enforce controls to reduce the 
discharge of pollutants from municipal separate storm sewers which 
receive discharges from areas of new development and significant 
redevelopment. Such plan shall address controls to reduce pollutants in 
discharges from municipal separate storm sewers after construction is 
completed. (Controls to reduce pollutants in discharges from municipal 
separate storm sewers containing construction site runoff are addressed 
in paragraph (d)(2)(iv)(D) of this section;
    (3) A description of practices for operating and maintaining public 
streets, roads and highways and procedures for reducing the impact on 
receiving waters of discharges from municipal storm sewer systems, 
including pollutants discharged as a result of deicing activities;
    (4) A description of procedures to assure that flood management 
projects assess the impacts on the water quality of receiving water 
bodies and that existing structural flood control devices have been 
evaluated to determine if retrofitting the device to provide additional 
pollutant removal from storm water is feasible;
    (5) A description of a program to monitor pollutants in runoff from 
operating or closed municipal landfills or other treatment, storage or 
disposal facilities for municipal waste, which shall identify priorities 
and procedures for inspections and establishing and implementing control 
measures for such discharges (this program can be coordinated with the 
program developed under paragraph (d)(2)(iv)(C) of this section); and

[[Page 218]]

    (6) A description of a program to reduce to the maximum extent 
practicable, pollutants in discharges from municipal separate storm 
sewers associated with the application of pesticides, herbicides and 
fertilizer which will include, as appropriate, controls such as 
educational activities, permits, certifications and other measures for 
commercial applicators and distributors, and controls for application in 
public right-of-ways and at municipal facilities.
    (B) A description of a program, including a schedule, to detect and 
remove (or require the discharger to the municipal separate storm sewer 
to obtain a separate NPDES permit for) illicit discharges and improper 
disposal into the storm sewer. The proposed program shall include:
    (1) A description of a program, including inspections, to implement 
and enforce an ordinance, orders or similar means to prevent illicit 
discharges to the municipal separate storm sewer system; this program 
description shall address all types of illicit discharges, however the 
following category of non-storm water discharges or flows shall be 
addressed where such discharges are identified by the municipality as 
sources of pollutants to waters of the United States: water line 
flushing, landscape irrigation, diverted stream flows, rising ground 
waters, uncontaminated ground water infiltration (as defined at 40 CFR 
35.2005(20)) to separate storm sewers, uncontaminated pumped ground 
water, discharges from potable water sources, foundation drains, air 
conditioning condensation, irrigation water, springs, water from crawl 
space pumps, footing drains, lawn watering, individual residential car 
washing, flows from riparian habitats and wetlands, dechlorinated 
swimming pool discharges, and street wash water (program descriptions 
shall address discharges or flows from fire fighting only where such 
discharges or flows are identified as significant sources of pollutants 
to waters of the United States);
    (2) A description of procedures to conduct on-going field screening 
activities during the life of the permit, including areas or locations 
that will be evaluated by such field screens;
    (3) A description of procedures to be followed to investigate 
portions of the separate storm sewer system that, based on the results 
of the field screen, or other appropriate information, indicate a 
reasonable potential of containing illicit discharges or other sources 
of non-storm water (such procedures may include: sampling procedures for 
constituents such as fecal coliform, fecal streptococcus, surfactants 
(MBAS), residual chlorine, fluorides and potassium; testing with 
fluorometric dyes; or conducting in storm sewer inspections where safety 
and other considerations allow. Such description shall include the 
location of storm sewers that have been identified for such evaluation);
    (4) A description of procedures to prevent, contain, and respond to 
spills that may discharge into the municipal separate storm sewer;
    (5) A description of a program to promote, publicize, and facilitate 
public reporting of the presence of illicit discharges or water quality 
impacts associated with discharges from municipal separate storm sewers;
    (6) A description of educational activities, public information 
activities, and other appropriate activities to facilitate the proper 
management and disposal of used oil and toxic materials; and
    (7) A description of controls to limit infiltration of seepage from 
municipal sanitary sewers to municipal separate storm sewer systems 
where necessary;
    (C) A description of a program to monitor and control pollutants in 
storm water discharges to municipal systems from municipal landfills, 
hazardous waste treatment, disposal and recovery facilities, industrial 
facilities that are subject to section 313 of title III of the Superfund 
Amendments and Reauthorization Act of 1986 (SARA), and industrial 
facilities that the municipal permit applicant determines are 
contributing a substantial pollutant loading to the municipal storm 
sewer system. The program shall:
    (1) Identify priorities and procedures for inspections and 
establishing and implementing control measures for such discharges;
    (2) Describe a monitoring program for storm water discharges 
associated

[[Page 219]]

with the industrial facilities identified in paragraph (d)(2)(iv)(C) of 
this section, to be implemented during the term of the permit, including 
the submission of quantitative data on the following constituents: any 
pollutants limited in effluent guidelines subcategories, where 
applicable; any pollutant listed in an existing NPDES permit for a 
facility; oil and grease, COD, pH, BOD5, TSS, total 
phosphorus, total Kjeldahl nitrogen, nitrate plus nitrite nitrogen, and 
any information on discharges required under Sec. 122.21(g)(7) (vi) and 
(vii).
    (D) A description of a program to implement and maintain structural 
and non-structural best management practices to reduce pollutants in 
storm water runoff from construction sites to the municipal storm sewer 
system, which shall include:
    (1) A description of procedures for site planning which incorporate 
consideration of potential water quality impacts;
    (2) A description of requirements for nonstructural and structural 
best management practices;
    (3) A description of procedures for identifying priorities for 
inspecting sites and enforcing control measures which consider the 
nature of the construction activity, topography, and the characteristics 
of soils and receiving water quality; and
    (4) A description of appropriate educational and training measures 
for construction site operators.
    (v) Assessment of controls. Estimated reductions in loadings of 
pollutants from discharges of municipal storm sewer constituents from 
municipal storm sewer systems expected as the result of the municipal 
storm water quality management program. The assessment shall also 
identify known impacts of storm water controls on ground water.
    (vi) Fiscal analysis. For each fiscal year to be covered by the 
permit, a fiscal analysis of the necessary capital and operation and 
maintenance expenditures necessary to accomplish the activities of the 
programs under paragraphs (d)(2) (iii) and (iv) of this section. Such 
analysis shall include a description of the source of funds that are 
proposed to meet the necessary expenditures, including legal 
restrictions on the use of such funds.
    (vii) Where more than one legal entity submits an application, the 
application shall contain a description of the roles and 
responsibilities of each legal entity and procedures to ensure effective 
coordination.
    (viii) Where requirements under paragraph (d)(1)(iv)(E), (d)(2)(ii), 
(d)(2)(iii)(B) and (d)(2)(iv) of this section are not practicable or are 
not applicable, the Director may exclude any operator of a discharge 
from a municipal separate storm sewer which is designated under 
paragraph (a)(1)(v), (b)(4)(ii) or (b)(7)(ii) of this section from such 
requirements. The Director shall not exclude the operator of a discharge 
from a municipal separate storm sewer identified in appendix F, G, H or 
I of part 122, from any of the permit application requirements under 
this paragraph except where authorized under this section.
    (e) Application deadlines. Any operator of a point source required 
to obtain a permit under this section that does not have an effective 
NPDES permit authorizing discharges from its storm water outfalls shall 
submit an application in accordance with the following deadlines:
    (1) Storm water discharges associated with industrial activity. (i) 
Except as provided in paragraph (e)(1)(ii) of this section, for any 
storm water discharge associated with industrial activity identified in 
paragraphs (b)(14)(i) through (xi) of this section, that is not part of 
a group application as described in paragraph (c)(2) of this section or 
that is not authorized by a storm water general permit, a permit 
application made pursuant to paragraph (c) of this section must be 
submitted to the Director by October 1, 1992;
    (ii) For any storm water discharge associated with industrial 
activity from a facility that is owned or operated by a municipality 
with a population of less than 100,000 that is not authorized by a 
general or individual permit, other than an airport, powerplant, or 
uncontrolled sanitary landfill, the permit application must be submitted 
to the Director by March 10, 2003.

[[Page 220]]

    (2) For any group application submitted in accordance with paragraph 
(c)(2) of this section:
    (i) Part 1. (A) Except as provided in paragraph (e)(2)(i)(B) of this 
section, part 1 of the application shall be submitted to the Director, 
Office of Wastewater Enforcement and Compliance by September 30, 1991;
    (B) Any municipality with a population of less than 250,000 shall 
not be required to submit a part 1 application before May 18, 1992.
    (C) For any storm water discharge associated with industrial 
activity from a facility that is owned or operated by a municipality 
with a population of less than 100,000 other than an airport, 
powerplant, or uncontrolled sanitary landfill, permit applications 
requirements are reserved.
    (ii) Based on information in the part 1 application, the Director 
will approve or deny the members in the group application within 60 days 
after receiving part 1 of the group application.
    (iii) Part 2. (A) Except as provided in paragraph (e)(2)(iii)(B) of 
this section, part 2 of the application shall be submittted to the 
Director, Office of Wastewater Enforcement and Compliance by October 1, 
1992;
    (B) Any municipality with a population of less than 250,000 shall 
not be required to submit a part 1 application before May 17, 1993.
    (C) For any storm water discharge associated with industrial 
activity from a facility that is owned or operated by a municipality 
with a population of less than 100,000 other than an airport, 
powerplant, or uncontrolled sanitary landfill, permit applications 
requirements are reserved.
    (iv) Rejected facilities. (A) Except as provided in paragraph 
(e)(2)(iv)(B) of this section, facilities that are rejected as members 
of the group shall submit an individual application (or obtain coverage 
under an applicable general permit) no later than 12 months after the 
date of receipt of the notice of rejection or October 1, 1992, whichever 
comes first.
    (B) Facilities that are owned or operated by a municipality and that 
are rejected as members of part 1 group application shall submit an 
individual application no later than 180 days after the date of receipt 
of the notice of rejection or October 1, 1992, whichever is later.
    (v) A facility listed under paragraph (b)(14) (i)-(xi) of this 
section may add on to a group application submitted in accordance with 
paragraph (e)(2)(i) of this section at the discretion of the Office of 
Water Enforcement and Permits, and only upon a showing of good cause by 
the facility and the group applicant; the request for the addition of 
the facility shall be made no later than February 18, 1992; the addition 
of the facility shall not cause the percentage of the facilities that 
are required to submit quantitative data to be less than 10%, unless 
there are over 100 facilities in the group that are submitting 
quantitative data; approval to become part of group application must be 
obtained from the group or the trade association representing the 
individual facilities.
    (3) For any discharge from a large municipal separate storm sewer 
system;
    (i) Part 1 of the application shall be submitted to the Director by 
November 18, 1991;
    (ii) Based on information received in the part 1 application the 
Director will approve or deny a sampling plan under paragraph 
(d)(1)(iv)(E) of this section within 90 days after receiving the part 1 
application;
    (iii) Part 2 of the application shall be submitted to the Director 
by November 16, 1992.
    (4) For any discharge from a medium municipal separate storm sewer 
system;
    (i) Part 1 of the application shall be submitted to the Director by 
May 18, 1992.
    (ii) Based on information received in the part 1 application the 
Director will approve or deny a sampling plan under paragraph 
(d)(1)(iv)(E) of this section within 90 days after receiving the part 1 
application.
    (iii) Part 2 of the application shall be submitted to the Director 
by May 17, 1993.
    (5) A permit application shall be submitted to the Director within 
180 days of notice, unless permission for a later date is granted by the 
Director (see Sec. 124.52(c) of this chapter), for:

[[Page 221]]

    (i) A storm water discharge that the Director, or in States with 
approved NPDES programs, either the Director or the EPA Regional 
Administrator, determines that the discharge contributes to a violation 
of a water quality standard or is a significant contributor of 
pollutants to waters of the United States (see paragraphs (a)(1)(v) and 
(b)(15)(ii) of this section);
    (ii) A storm water discharge subject to paragraph (c)(1)(v) of this 
section.
    (6) Facilities with existing NPDES permits for storm water 
discharges associated with industrial activity shall maintain existing 
permits. Facilities with permits for storm water discharges associated 
with industrial activity which expire on or after May 18, 1992 shall 
submit a new application in accordance with the requirements of 40 CFR 
122.21 and 40 CFR 122.26(c) (Form 1, Form 2F, and other applicable 
Forms) 180 days before the expiration of such permits.
    (7) The Director shall issue or deny permits for discharges composed 
entirely of storm water under this section in accordance with the 
following schedule:
    (i)(A) Except as provided in paragraph (e)(7)(i)(B) of this section, 
the Director shall issue or deny permits for storm water discharges 
associated with industrial activity no later than October 1, 1993, or, 
for new sources or existing sources which fail to submit a complete 
permit application by October 1, 1992, one year after receipt of a 
complete permit application;
    (B) For any municipality with a population of less than 250,000 
which submits a timely Part I group application under paragraph 
(e)(2)(i)(B) of this section, the Director shall issue or deny permits 
for storm water discharges associated with industrial activity no later 
than May 17, 1994, or, for any such municipality which fails to submit a 
complete Part II group permit application by May 17, 1993, one year 
after receipt of a complete permit application;
    (ii) The Director shall issue or deny permits for large municipal 
separate storm sewer systems no later than November 16, 1993, or, for 
new sources or existing sources which fail to submit a complete permit 
application by November 16, 1992, one year after receipt of a complete 
permit application;
    (iii) The Director shall issue or deny permits for medium municipal 
separate storm sewer systems no later than May 17, 1994, or, for new 
sources or existing sources which fail to submit a complete permit 
application by May 17, 1993, one year after receipt of a complete permit 
application.
    (8) For any storm water discharge associated with small construction 
activities identified in paragraph (b)(15)(i) of this section, see Sec. 
122.21(c)(1). Discharges from these sources require permit authorization 
by March 10, 2003, unless designated for coverage before then.
    (9) For any discharge from a regulated small MS4, the permit 
application made under Sec. 122.33 must be submitted to the Director 
by:
    (i) March 10, 2003 if designated under Sec. 122.32(a)(1) unless 
your MS4 serves a jurisdiction with a population under 10,000 and the 
NPDES permitting authority has established a phasing schedule under 
Sec. 123.35(d)(3) (see Sec. 122.33(c)(1)); or
    (ii) Within 180 days of notice, unless the NPDES permitting 
authority grants a later date, if designated under Sec. 122.32(a)(2) 
(see Sec. 122.33(c)(2)).
    (f) Petitions. (1) Any operator of a municipal separate storm sewer 
system may petition the Director to require a separate NPDES permit (or 
a permit issued under an approved NPDES State program) for any discharge 
into the municipal separate storm sewer system.
    (2) Any person may petition the Director to require a NPDES permit 
for a discharge which is composed entirely of storm water which 
contributes to a violation of a water quality standard or is a 
significant contributor of pollutants to waters of the United States.
    (3) The owner or operator of a municipal separate storm sewer system 
may petition the Director to reduce the Census estimates of the 
population served by such separate system to account for storm water 
discharged to combined sewers as defined by 40 CFR 35.2005(b)(11) that 
is treated in a publicly owned treatment works. In municipalities in 
which combined sewers are operated, the Census estimates of

[[Page 222]]

population may be reduced proportional to the fraction, based on 
estimated lengths, of the length of combined sewers over the sum of the 
length of combined sewers and municipal separate storm sewers where an 
applicant has submitted the NPDES permit number associated with each 
discharge point and a map indicating areas served by combined sewers and 
the location of any combined sewer overflow discharge point.
    (4) Any person may petition the Director for the designation of a 
large, medium, or small municipal separate storm sewer system as defined 
by paragraph (b)(4)(iv), (b)(7)(iv), or (b)(16) of this section.
    (5) The Director shall make a final determination on any petition 
received under this section within 90 days after receiving the petition 
with the exception of petitions to designate a small MS4 in which case 
the Director shall make a final determination on the petition within 180 
days after its receipt.
    (g) Conditional exclusion for ``no exposure'' of industrial 
activities and materials to storm water. Discharges composed entirely of 
storm water are not storm water discharges associated with industrial 
activity if there is ``no exposure'' of industrial materials and 
activities to rain, snow, snowmelt and/or runoff, and the discharger 
satisfies the conditions in paragraphs (g)(1) through (g)(4) of this 
section. ``No exposure'' means that all industrial materials and 
activities are protected by a storm resistant shelter to prevent 
exposure to rain, snow, snowmelt, and/or runoff. Industrial materials or 
activities include, but are not limited to, material handling equipment 
or activities, industrial machinery, raw materials, intermediate 
products, by-products, final products, or waste products. Material 
handling activities include the storage, loading and unloading, 
transportation, or conveyance of any raw material, intermediate product, 
final product or waste product.
    (1) Qualification. To qualify for this exclusion, the operator of 
the discharge must:
    (i) Provide a storm resistant shelter to protect industrial 
materials and activities from exposure to rain, snow, snow melt, and 
runoff;
    (ii) Complete and sign (according to Sec. 122.22) a certification 
that there are no discharges of storm water contaminated by exposure to 
industrial materials and activities from the entire facility, except as 
provided in paragraph (g)(2) of this section;
    (iii) Submit the signed certification to the NPDES permitting 
authority once every five years;
    (iv) Allow the Director to inspect the facility to determine 
compliance with the ``no exposure'' conditions;
    (v) Allow the Director to make any ``no exposure'' inspection 
reports available to the public upon request; and
    (vi) For facilities that discharge through an MS4, upon request, 
submit a copy of the certification of ``no exposure'' to the MS4 
operator, as well as allow inspection and public reporting by the MS4 
operator.
    (2) Industrial materials and activities not requiring storm 
resistant shelter. To qualify for this exclusion, storm resistant 
shelter is not required for:
    (i) Drums, barrels, tanks, and similar containers that are tightly 
sealed, provided those containers are not deteriorated and do not leak 
(``Sealed'' means banded or otherwise secured and without operational 
taps or valves);
    (ii) Adequately maintained vehicles used in material handling; and
    (iii) Final products, other than products that would be mobilized in 
storm water discharge (e.g., rock salt).
    (3) Limitations. (i) Storm water discharges from construction 
activities identified in paragraphs (b)(14)(x) and (b)(15) are not 
eligible for this conditional exclusion.
    (ii) This conditional exclusion from the requirement for an NPDES 
permit is available on a facility-wide basis only, not for individual 
outfalls. If a facility has some discharges of storm water that would 
otherwise be ``no exposure'' discharges, individual permit requirements 
should be adjusted accordingly.
    (iii) If circumstances change and industrial materials or activities 
become exposed to rain, snow, snow melt, and/or runoff, the conditions 
for this exclusion no longer apply. In such cases, the discharge becomes 
subject to enforcement for un-permitted discharge. Any conditionally 
exempt discharger who

[[Page 223]]

anticipates changes in circumstances should apply for and obtain permit 
authorization prior to the change of circumstances.
    (iv) Notwithstanding the provisions of this paragraph, the NPDES 
permitting authority retains the authority to require permit 
authorization (and deny this exclusion) upon making a determination that 
the discharge causes, has a reasonable potential to cause, or 
contributes to an instream excursion above an applicable water quality 
standard, including designated uses.
    (4) Certification. The no exposure certification must require the 
submission of the following information, at a minimum, to aid the NPDES 
permitting authority in determining if the facility qualifies for the no 
exposure exclusion:
    (i) The legal name, address and phone number of the discharger (see 
Sec. 122.21(b));
    (ii) The facility name and address, the county name and the latitude 
and longitude where the facility is located;
    (iii) The certification must indicate that none of the following 
materials or activities are, or will be in the foreseeable future, 
exposed to precipitation:
    (A) Using, storing or cleaning industrial machinery or equipment, 
and areas where residuals from using, storing or cleaning industrial 
machinery or equipment remain and are exposed to storm water;
    (B) Materials or residuals on the ground or in storm water inlets 
from spills/leaks;
    (C) Materials or products from past industrial activity;
    (D) Material handling equipment (except adequately maintained 
vehicles);
    (E) Materials or products during loading/unloading or transporting 
activities;
    (F) Materials or products stored outdoors (except final products 
intended for outside use, e.g., new cars, where exposure to storm water 
does not result in the discharge of pollutants);
    (G) Materials contained in open, deteriorated or leaking storage 
drums, barrels, tanks, and similar containers;
    (H) Materials or products handled/stored on roads or railways owned 
or maintained by the discharger;
    (I) Waste material (except waste in covered, non-leaking containers, 
e.g., dumpsters);
    (J) Application or disposal of process wastewater (unless otherwise 
permitted); and
    (K) Particulate matter or visible deposits of residuals from roof 
stacks/vents not otherwise regulated, i.e., under an air quality control 
permit, and evident in the storm water outflow;
    (iv) All ``no exposure'' certifications must include the following 
certification statement, and be signed in accordance with the signatory 
requirements of Sec. 122.22: ``I certify under penalty of law that I 
have read and understand the eligibility requirements for claiming a 
condition of ``no exposure'' and obtaining an exclusion from NPDES storm 
water permitting; and that there are no discharges of storm water 
contaminated by exposure to industrial activities or materials from the 
industrial facility identified in this document (except as allowed under 
paragraph (g)(2)) of this section. I understand that I am obligated to 
submit a no exposure certification form once every five years to the 
NPDES permitting authority and, if requested, to the operator of the 
local MS4 into which this facility discharges (where applicable). I 
understand that I must allow the NPDES permitting authority, or MS4 
operator where the discharge is into the local MS4, to perform 
inspections to confirm the condition of no exposure and to make such 
inspection reports publicly available upon request. I understand that I 
must obtain coverage under an NPDES permit prior to any point source 
discharge of storm water from the facility. I certify under penalty of 
law that this document and all attachments were prepared under my 
direction or supervision in accordance with a system designed to assure 
that qualified personnel properly gathered and evaluated the information 
submitted. Based upon my inquiry of the person or persons who manage the 
system, or those persons directly involved in gathering the information, 
the information submitted is to the best of my knowledge and belief 
true, accurate and complete. I am aware there are significant penalties 
for submitting false

[[Page 224]]

information, including the possibility of fine and imprisonment for 
knowing violations.''

[55 FR 48063, Nov. 16, 1990]

    Editorial Note: For Federal Register citations affecting Sec. 
122.26, see the List of CFR Sections Affected, which appears in the 
Finding Aids section of the printed volume and on GPO Access.



Sec. 122.27  Silvicultural activities (applicable to State NPDES programs, see 

Sec. 123.25).

    (a) Permit requirement. Silvicultural point sources, as defined in 
this section, as point sources subject to the NPDES permit program.
    (b) Definitions. (1) Silvicultural point source means any 
discernible, confined and discrete conveyance related to rock crushing, 
gravel washing, log sorting, or log storage facilities which are 
operated in connection with silvicultural activities and from which 
pollutants are discharged into waters of the United States. The term 
does not include non-point source silvicultural activities such as 
nursery operations, site preparation, reforestation and subsequent 
cultural treatment, thinning, prescribed burning, pest and fire control, 
harvesting operations, surface drainage, or road construction and 
maintenance from which there is natural runoff. However, some of these 
activities (such as stream crossing for roads) may involve point source 
discharges of dredged or fill material which may require a CWA section 
404 permit (See 33 CFR 209.120 and part 233).
    (2) Rock crushing and gravel washing facilities means facilities 
which process crushed and broken stone, gravel, and riprap (See 40 CFR 
part 436, subpart B, including the effluent limitations guidelines).
    (3) Log sorting and log storage facilities means facilities whose 
discharges result from the holding of unprocessed wood, for example, 
logs or roundwood with bark or after removal of bark held in self-
contained bodies of water (mill ponds or log ponds) or stored on land 
where water is applied intentionally on the logs (wet decking). (See 40 
CFR part 429, subpart I, including the effluent limitations guidelines).



Sec. 122.28  General permits (applicable to State NPDES programs, see Sec. 

123.25).

    (a) Coverage. The Director may issue a general permit in accordance 
with the following:
    (1) Area. The general permit shall be written to cover one or more 
categories or subcategories of discharges or sludge use or disposal 
practices or facilities described in the permit under paragraph 
(a)(2)(ii) of this section, except those covered by individual permits, 
within a geographic area. The area should correspond to existing 
geographic or political boundaries such as:
    (i) Designated planning areas under sections 208 and 303 of CWA;
    (ii) Sewer districts or sewer authorities;
    (iii) City, county, or State political boundaries;
    (iv) State highway systems;
    (v) Standard metropolitan statistical areas as defined by the Office 
of Management and Budget;
    (vi) Urbanized areas as designated by the Bureau of the Census 
according to criteria in 30 FR 15202 (May 1, 1974); or
    (vii) Any other appropriate division or combination of boundaries.
    (2) Sources. The general permit may be written to regulate one or 
more categories or subcategories of discharges or sludge use or disposal 
practices or facilities, within the area described in paragraph (a)(1) 
of this section, where the sources within a covered subcategory of 
discharges are either:
    (i) Storm water point sources; or (ii) One or more categories or 
subcategories of point sources other than storm water point sources, or 
one or more categories or subcategories of ``treatment works treating 
domestic sewage'', if the sources or ``treatment works treating domestic 
sewage'' within each category or subcategory all:
    (A) Involve the same or substantially similar types of operations;
    (B) Discharge the same types of wastes or engage in the same types 
of sludge use or disposal practices;
    (C) Require the same effluent limitations, operating conditions, or 
standards for sewage sludge use or disposal;
    (D) Require the same or similar monitoring; and (E) In the opinion 
of the

[[Page 225]]

Director, are more appropriately controlled under a general permit than 
under individual permits.
    (3)Water quality-based limits. Where sources within a specific 
category or subcategory of dischargers are subject to water quality-
based limits imposed pursuant to Sec. 122.44, the sources in that 
specific category or subcategory shall be subject to the same water 
quality-based effluent limitations.
    (4) Other requirements. (i) The general permit must clearly identify 
the applicable conditions for each category or subcategory of 
dischargers or treatment works treating domestic sewage covered by the 
permit.
    (ii) The general permit may exclude specified sources or areas from 
coverage.
    (b) Administration--(1) In general. General permits may be issued, 
modified, revoked and reissued, or terminated in accordance with 
applicable requirements of part 124 of this chapter or corresponding 
State regulations. Special procedures for issuance are found at Sec. 
123.44 of this chapter for States.
    (2) Authorization to discharge, or authorization to engage in sludge 
use and disposal practices. (i) Except as provided in paragraphs 
(b)(2)(v) and (b)(2)(vi) of this section, dischargers (or treatment 
works treating domestic sewage) seeking coverage under a general permit 
shall submit to the Director a written notice of intent to be covered by 
the general permit. A discharger (or treatment works treating domestic 
sewage) who fails to submit a notice of intent in accordance with the 
terms of the permit is not authorized to discharge, (or in the case of 
sludge disposal permit, to engage in a sludge use or disposal practice), 
under the terms of the general permit unless the general permit, in 
accordance with paragraph (b)(2)(v) of this section, contains a 
provision that a notice of intent is not required or the Director 
notifies a discharger (or treatment works treating domestic sewage) that 
it is covered by a general permit in accordance with paragraph 
(b)(2)(vi) of this section. A complete and timely, notice of intent 
(NOI), to be covered in accordance with general permit requirements, 
fulfills the requirements for permit applications for purposes of 
Sec. Sec. 122.6, 122.21 and 122.26.
    (ii) The contents of the notice of intent shall be specified in the 
general permit and shall require the submission of information necessary 
for adequate program implementation, including at a minimum, the legal 
name and address of the owner or operator, the facility name and 
address, type of facility or discharges, and the receiving stream(s). 
General permits for storm water discharges associated with industrial 
activity from inactive mining, inactive oil and gas operations, or 
inactive landfills occurring on Federal lands where an operator cannot 
be identified may contain alternative notice of intent requirements. All 
notices of intent shall be signed in accordance with Sec. 122.22. 
Notices of intent for coverage under a general permit for concentrated 
animal feeding operations must include the information specified in 
Sec. 122.21(i)(1), including a topographic map.
    (iii) General permits shall specify the deadlines for submitting 
notices of intent to be covered and the date(s) when a discharger is 
authorized to discharge under the permit;
    (iv) General permits shall specify whether a discharger (or 
treatment works treating domestic sewage) that has submitted a complete 
and timely notice of intent to be covered in accordance with the general 
permit and that is eligible for coverage under the permit, is authorized 
to discharge, (or in the case of a sludge disposal permit, to engage in 
a sludge use or disposal practice), in accordance with the permit either 
upon receipt of the notice of intent by the Director, after a waiting 
period specified in the general permit, on a date specified in the 
general permit, or upon receipt of notification of inclusion by the 
Director. Coverage may be terminated or revoked in accordance with 
paragraph (b)(3) of this section.
    (v) Discharges other than discharges from publicly owned treatment 
works, combined sewer overflows, municipal separate storm sewer systems, 
primary industrial facilities, and storm water discharges associated 
with industrial activity, may, at the discretion of the Director, be 
authorized to discharge

[[Page 226]]

under a general permit without submitting a notice of intent where the 
Director finds that a notice of intent requirement would be 
inappropriate. In making such a finding, the Director shall consider: 
the type of discharge; the expected nature of the discharge; the 
potential for toxic and conventional pollutants in the discharges; the 
expected volume of the discharges; other means of identifying discharges 
covered by the permit; and the estimated number of discharges to be 
covered by the permit. The Director shall provide in the public notice 
of the general permit the reasons for not requiring a notice of intent.
    (vi) The Director may notify a discharger (or treatment works 
treating domestic sewage) that it is covered by a general permit, even 
if the discharger (or treatment works treating domestic sewage) has not 
submitted a notice of intent to be covered. A discharger (or treatment 
works treating domestic sewage) so notified may request an individual 
permit under paragraph (b)(3)(iii) of this section.
    (vii) A CAFO owner or operator may be authorized to discharge under 
a general permit only in accordance with the process described in Sec. 
122.23(h).
    (3) Requiring an individual permit. (i) The Director may require any 
discharger authorized by a general permit to apply for and obtain an 
individual NPDES permit. Any interested person may petition the Director 
to take action under this paragraph. Cases where an individual NPDES 
permit may be required include the following:
    (A) The discharger or ``treatment works treating domestic sewage'' 
is not in compliance with the conditions of the general NPDES permit;
    (B) A change has occurred in the availability of demonstrated 
technology or practices for the control or abatement of pollutants 
applicable to the point source or treatment works treating domestic 
sewage;
    (C) Effluent limitation guidelines are promulgated for point sources 
covered by the general NPDES permit;
    (D) A Water Quality Management plan containing requirements 
applicable to such point sources is approved;
    (E) Circumstances have changed since the time of the request to be 
covered so that the discharger is no longer appropriately controlled 
under the general permit, or either a temporary or permanent reduction 
or elimination of the authorized discharge is necessary;
    (F) Standards for sewage sludge use or disposal have been 
promulgated for the sludge use and disposal practice covered by the 
general NPDES permit; or
    (G) The discharge(s) is a significant contributor of pollutants. In 
making this determination, the Director may consider the following 
factors:
    (1) The location of the discharge with respect to waters of the 
United States;
    (2) The size of the discharge;
    (3) The quantity and nature of the pollutants discharged to waters 
of the United States; and
    (4) Other relevant factors;
    (ii) For EPA issued general permits only, the Regional Administrator 
may require any owner or operator authorized by a general permit to 
apply for an individual NPDES permit as provided in paragraph (b)(3)(i) 
of this section, only if the owner or operator has been notified in 
writing that a permit application is required. This notice shall include 
a brief statement of the reasons for this decision, an application form, 
a statement setting a time for the owner or operator to file the 
application, and a statement that on the effective date of the 
individual NPDES permit the general permit as it applies to the 
individual permittee shall automatically terminate. The Director may 
grant additional time upon request of the applicant.
    (iii) Any owner or operator authorized by a general permit may 
request to be excluded from the coverage of the general permit by 
applying for an individual permit. The owner or operator shall submit an 
application under Sec. 122.21, with reasons supporting the request, to 
the Director no later than 90 days after the publication by EPA of the 
general permit in the Federal Register or the publication by a State in 
accordance with applicable State law. The request shall be processed 
under part 124 or applicable State procedures. The request shall be 
granted by issuing of any individual permit if

[[Page 227]]

the reasons cited by the owner or operator are adequate to support the 
request.
    (iv) When an individual NPDES permit is issued to an owner or 
operator otherwise subject to a general NPDES permit, the applicability 
of the general permit to the individual NPDES permittee is automatically 
terminated on the effective date of the individual permit.
    (v) A source excluded from a general permit solely because it 
already has an individual permit may request that the individual permit 
be revoked, and that it be covered by the general permit. Upon 
revocation of the individual permit, the general permit shall apply to 
the source.
    (c) Offshore oil and gas facilities (Not applicable to State 
programs). (1) The Regional Administrator shall, except as provided 
below, issue general permits covering discharges from offshore oil and 
gas exploration and production facilities within the Region's 
jurisdiction. Where the offshore area includes areas, such as areas of 
biological concern, for which separate permit conditions are required, 
the Regional Administrator may issue separate general permits, 
individual permits, or both. The reason for separate general permits or 
individual permits shall be set forth in the appropriate fact sheets or 
statements of basis. Any statement of basis or fact sheet for a draft 
permit shall include the Regional Administrator's tentative 
determination as to whether the permit applies to ``new sources,'' ``new 
dischargers,'' or existing sources and the reasons for this 
determination, and the Regional Administrator's proposals as to areas of 
biological concern subject either to separate individual or general 
permits. For Federally leased lands, the general permit area should 
generally be no less extensive than the lease sale area defined by the 
Department of the Interior.
    (2) Any interested person, including any prospective permittee, may 
petition the Regional Administrator to issue a general permit. Unless 
the Regional Administrator determines under paragraph (c)(1) of this 
section that no general permit is appropriate, he shall promptly provide 
a project decision schedule covering the issuance of the general permit 
or permits for any lease sale area for which the Department of the 
Interior has published a draft environmental impact statement. The 
project decision schedule shall meet the requirements of Sec. 124.3(g), 
and shall include a schedule providing for the issuance of the final 
general permit or permits not later than the date of the final notice of 
sale projected by the Department of the Interior or six months after the 
date of the request, whichever is later. The Regional Administrator may, 
at his discretion, issue a project decision schedule for offshore oil 
and gas facilities in the territorial seas.
    (3) Nothing in this paragraph (c) shall affect the authority of the 
Regional Administrator to require an individual permit under Sec. 
122.28(b)(3)(i) (A) through (G).

(Clean Water Act (33 U.S.C. 1251 et seq.), Safe Drinking Water Act (42 
U.S.C. 300f et seq.), Clean Air Act (42 U.S.C. 7401 et seq.), Resource 
Conservation and Recovery Act (42 U.S.C. 6901 et seq.))

[48 FR 14153, Apr. 1, 1983, as amended at 48 FR 39619, Sept. 1, 1983; 49 
FR 38048, Sept. 26, 1984; 50 FR 6940, Feb. 19, 1985; 54 FR 18782, May 2, 
1989; 55 FR 48072, Nov. 16, 1990; 57 FR 11412 and 11413, Apr. 2, 1992; 
64 FR 68841, Dec. 8, 1999; 65 FR 30908, May 15, 2000; 68 FR 7268, Feb. 
12, 2003; 73 FR 70483, Nov. 20, 2008]



Sec. 122.29  New sources and new dischargers.

    (a) Definitions. (1) New source and new discharger are defined in 
Sec. 122.2. [See Note 2.]
    (2) Source means any building, structure, facility, or installation 
from which there is or may be a discharge of pollutants.
    (3) Existing source means any source which is not a new source or a 
new discharger.
    (4) Site is defined in Sec. 122.2;
    (5) Facilities or equipment means buildings, structures, process or 
production equipment or machinery which form a permanent part of the new 
source and which will be used in its operation, if these facilities or 
equipment are of such value as to represent a substantial commitment to 
construct. It excludes facilities or equipment used in connection with 
feasibility, engineering, and design studies regarding the source or 
water pollution treatment for the source.

[[Page 228]]

    (b) Criteria for new source determination. (1) Except as otherwise 
provided in an applicable new source performance standard, a source is a 
``new source'' if it meets the definition of ``new source'' in Sec. 
122.2, and
    (i) It is constructed at a site at which no other source is located; 
or
    (ii) It totally replaces the process or production equipment that 
causes the discharge of pollutants at an existing source; or
    (iii) Its processes are substantially independent of an existing 
source at the same site. In determining whether these processes are 
substantially independent, the Director shall consider such factors as 
the extent to which the new facility is integrated with the existing 
plant; and the extent to which the new facility is engaged in the same 
general type of activity as the existing source.
    (2) A source meeting the requirements of paragraphs (b)(1) (i), 
(ii), or (iii) of this section is a new source only if a new source 
performance standard is independently applicable to it. If there is no 
such independently applicable standard, the source is a new discharger. 
See Sec. 122.2.
    (3) Construction on a site at which an existing source is located 
results in a modification subject to Sec. 122.62 rather than a new 
source (or a new discharger) if the construction does not create a new 
building, structure, facility, or installation meeting the criteria of 
paragraph (b)(1) (ii) or (iii) of this section but otherwise alters, 
replaces, or adds to existing process or production equipment.
    (4) Construction of a new source as defined under Sec. 122.2 has 
commenced if the owner or operator has:
    (i) Begun, or caused to begin as part of a continuous on-site 
construction program:
    (A) Any placement, assembly, or installation of facilities or 
equipment; or
    (B) Significant site preparation work including clearing, excavation 
or removal of existing buildings, structures, or facilities which is 
necessary for the placement, assembly, or installation of new source 
facilities or equipment; or
    (ii) Entered into a binding contractual obligation for the purchase 
of facilities or equipment which are intended to be used in its 
operation with a reasonable time. Options to purchase or contracts which 
can be terminated or modified without substantial loss, and contracts 
for feasibility engineering, and design studies do not constitute a 
contractual obligation under the paragraph.
    (c) Requirement for an environmental impact statement. (1) The 
issuance of an NPDES permit to new source:
    (i) By EPA may be a major Federal action significantly affecting the 
quality of the human environment within the meaning of the National 
Environmental Policy Act of 1969 (NEPA), 33 U.S.C. 4321 et seq. and is 
subject to the environmental review provisions of NEPA as set out in 40 
CFR part 6, subpart F. EPA will determine whether an Environmental 
Impact Statement (EIS) is required under Sec. 122.21(l) (special 
provisions for applications from new sources) and 40 CFR part 6, subpart 
F;
    (ii) By an NPDES approved State is not a Federal action and 
therefore does not require EPA to conduct an environmental review.
    (2) An EIS prepared under this paragraph shall include a 
recommendation either to issue or deny the permit.
    (i) If the recommendation is to deny the permit, the final EIS shall 
contain the reasons for the recommendation and list those measures, if 
any, which the applicant could take to cause the recommendation to be 
changed;
    (ii) If the recommendation is to issue the permit, the final EIS 
shall recommend the actions, if any, which the permittee should take to 
prevent or minimize any adverse environmental impacts;
    (3) The Regional Administrator, to the extent allowed by law, shall 
issue, condition (other than imposing effluent limitations), or deny the 
new source NPDES permit following a complete evaluation of any 
significant beneficial and adverse impacts of the proposed action and a 
review of the recommendations contained in the EIS or finding of no 
significant impact.
    (d) Effect of compliance with new source performance standards. (The 
provisions of this paragraph do not apply to existing sources which 
modify their pollution control facilities or construct

[[Page 229]]

new pollution control facilities and achieve performance standards, but 
which are neither new sources or new dischargers or otherwise do not 
meet the requirements of this paragraph.)
    (1) Except as provided in paragraph (d)(2) of this section, any new 
discharger, the construction of which commenced after October 18, 1972, 
or new source which meets the applicable promulgated new source 
performance standards before the commencement of discharge, may not be 
subject to any more stringent new source performance standards or to any 
more stringent technology-based standards under section 301(b)(2) of CWA 
for the soonest ending of the following periods:
    (i) Ten years from the date that construction is completed;
    (ii) Ten years from the date the source begins to discharge process 
or other nonconstruction related wastewater; or
    (iii) The period of depreciation or amortization of the facility for 
the purposes of section 167 or 169 (or both) of the Internal Revenue 
Code of 1954.
    (2) The protection from more stringent standards of performance 
afforded by paragraph (d)(1) of this section does not apply to:
    (i) Additional or more stringent permit conditions which are not 
technology based; for example, conditions based on water quality 
standards, or toxic effluent standards or prohibitions under section 
307(a) of CWA; or
    (ii) Additional permit conditions in accordance with Sec. 125.3 
controlling toxic pollutants or hazardous substances which are not 
controlled by new source performance standards. This includes permit 
conditions controlling pollutants other than those identified as toxic 
pollutants or hazardous substances when control of these pollutants has 
been specifically identified as the method to control the toxic 
pollutants or hazardous substances.
    (3) When an NPDES permit issued to a source with a ``protection 
period'' under paragraph (d)(1) of this section will expire on or after 
the expiration of the protection period, that permit shall require the 
owner or operator of the source to comply with the requirements of 
section 301 and any other then applicable requirements of CWA 
immediately upon the expiration of the protection period. No additional 
period for achieving compliance with these requirements may be allowed 
except when necessary to achieve compliance with requirements 
promulgated less than 3 years before the expiration of the protection 
period.
    (4) The owner or operator of a new source, a new discharger which 
commenced discharge after August 13, 1979, or a recommencing discharger 
shall install and have in operating condition, and shall ``start-up'' 
all pollution control equipment required to meet the conditions of its 
permits before beginning to discharge. Within the shortest feasible time 
(not to exceed 90 days), the owner or operator must meet all permit 
conditions. The requirements of this paragraph do not apply if the owner 
or operator is issued a permit containing a compliance schedule under 
Sec. 122.47(a)(2).
    (5) After the effective date of new source performance standards, it 
shall be unlawful for any owner or operator of any new source to operate 
the source in violation of those standards applicable to the source.

[48 FR 14153, Apr. 1, 1983, as amended at 49 FR 38048, Sept. 26, 1984; 
50 FR 4514, Jan. 31, 1985; 50 FR 6941, Feb. 19, 1985; 65 FR 30908, May 
15, 2000]



Sec. 122.30  What are the objectives of the storm water regulations for small 

MS4s?

    (a) Sections 122.30 through 122.37 are written in a ``readable 
regulation'' format that includes both rule requirements and EPA 
guidance that is not legally binding. EPA has clearly distinguished its 
recommended guidance from the rule requirements by putting the guidance 
in a separate paragraph headed by the word ``guidance''.
    (b) Under the statutory mandate in section 402(p)(6) of the Clean 
Water Act, the purpose of this portion of the storm water program is to 
designate additional sources that need to be regulated to protect water 
quality and to establish a comprehensive storm water program to regulate 
these sources. (Because the storm water program is part of the National 
Pollutant Discharge

[[Page 230]]

Elimination System (NPDES) Program, you should also refer to Sec. 122.1 
which addresses the broader purpose of the NPDES program.)
    (c) Storm water runoff continues to harm the nation's waters. Runoff 
from lands modified by human activities can harm surface water resources 
in several ways including by changing natural hydrologic patterns and by 
elevating pollutant concentrations and loadings. Storm water runoff may 
contain or mobilize high levels of contaminants, such as sediment, 
suspended solids, nutrients, heavy metals, pathogens, toxins, oxygen-
demanding substances, and floatables.
    (d) EPA strongly encourages partnerships and the watershed approach 
as the management framework for efficiently, effectively, and 
consistently protecting and restoring aquatic ecosystems and protecting 
public health.

[64 FR 68842, Dec. 8, 1999]



Sec. 122.31  As a Tribe, what is my role under the NPDES storm water program?

    As a Tribe you may:
    (a) Be authorized to operate the NPDES program including the storm 
water program, after EPA determines that you are eligible for treatment 
in the same manner as a State under Sec. Sec. 123.31 through 123.34 of 
this chapter. (If you do not have an authorized NPDES program, EPA 
implements the program for discharges on your reservation as well as 
other Indian country, generally.);
    (b) Be classified as an owner of a regulated small MS4, as defined 
in Sec. 122.32. (Designation of your Tribe as an owner of a small MS4 
for purposes of this part is an approach that is consistent with EPA's 
1984 Indian Policy of operating on a government-to-government basis with 
EPA looking to Tribes as the lead governmental authorities to address 
environmental issues on their reservations as appropriate. If you 
operate a separate storm sewer system that meets the definition of a 
regulated small MS4, you are subject to the requirements under 
Sec. Sec. 122.33 through 122.35. If you are not designated as a 
regulated small MS4, you may ask EPA to designate you as such for the 
purposes of this part.); or
    (c) Be a discharger of storm water associated with industrial 
activity or small construction activity under Sec. Sec. 122.26(b)(14) 
or (b)(15), in which case you must meet the applicable requirements. 
Within Indian country, the NPDES permitting authority is generally EPA, 
unless you are authorized to administer the NPDES program.

[64 FR 68842, Dec. 8, 1999]



Sec. 122.32  As an operator of a small MS4, am I regulated under the NPDES 

storm water program?

    (a) Unless you qualify for a waiver under paragraph (c) of this 
section, you are regulated if you operate a small MS4, including but not 
limited to systems operated by federal, State, Tribal, and local 
governments, including State departments of transportation; and:
    (1) Your small MS4 is located in an urbanized area as determined by 
the latest Decennial Census by the Bureau of the Census. (If your small 
MS4 is not located entirely within an urbanized area, only the portion 
that is within the urbanized area is regulated); or
    (2) You are designated by the NPDES permitting authority, including 
where the designation is pursuant to Sec. Sec. 123.35(b)(3) and (b)(4) 
of this chapter, or is based upon a petition under Sec. 122.26(f).
    (b) You may be the subject of a petition to the NPDES permitting 
authority to require an NPDES permit for your discharge of storm water. 
If the NPDES permitting authority determines that you need a permit, you 
are required to comply with Sec. Sec. 122.33 through 122.35.
    (c) The NPDES permitting authority may waive the requirements 
otherwise applicable to you if you meet the criteria of paragraph (d) or 
(e) of this section. If you receive a waiver under this section, you may 
subsequently be required to seek coverage under an NPDES permit in 
accordance with Sec. 122.33(a) if circumstances change. (See also Sec. 
123.35(b) of this chapter.)
    (d) The NPDES permitting authority may waive permit coverage if your 
MS4 serves a population of less than 1,000 within the urbanized area and 
you meet the following criteria:
    (1) Your system is not contributing substantially to the pollutant 
loadings

[[Page 231]]

of a physically interconnected MS4 that is regulated by the NPDES storm 
water program (see Sec. 123.35(b)(4) of this chapter); and
    (2) If you discharge any pollutant(s) that have been identified as a 
cause of impairment of any water body to which you discharge, storm 
water controls are not needed based on wasteload allocations that are 
part of an EPA approved or established ``total maximum daily load'' 
(TMDL) that addresses the pollutant(s) of concern.
    (e) The NPDES permitting authority may waive permit coverage if your 
MS4 serves a population under 10,000 and you meet the following 
criteria:
    (1) The permitting authority has evaluated all waters of the U.S., 
including small streams, tributaries, lakes, and ponds, that receive a 
discharge from your MS4;
    (2) For all such waters, the permitting authority has determined 
that storm water controls are not needed based on wasteload allocations 
that are part of an EPA approved or established TMDL that addresses the 
pollutant(s) of concern or, if a TMDL has not been developed or 
approved, an equivalent analysis that determines sources and allocations 
for the pollutant(s) of concern;
    (3) For the purpose of this paragraph (e), the pollutant(s) of 
concern include biochemical oxygen demand (BOD), sediment or a parameter 
that addresses sediment (such as total suspended solids, turbidity or 
siltation), pathogens, oil and grease, and any pollutant that has been 
identified as a cause of impairment of any water body that will receive 
a discharge from your MS4; and
    (4) The permitting authority has determined that future discharges 
from your MS4 do not have the potential to result in exceedances of 
water quality standards, including impairment of designated uses, or 
other significant water quality impacts, including habitat and 
biological impacts.

[64 FR 68842, Dec. 8, 1999]



Sec. 122.33  If I am an operator of a regulated small MS4, how do I apply for 

an NPDES permit and when do I have to apply?

    (a) If you operate a regulated small MS4 under Sec. 122.32, you 
must seek coverage under a NPDES permit issued by your NPDES permitting 
authority. If you are located in an NPDES authorized State, Tribe, or 
Territory, then that State, Tribe, or Territory is your NPDES permitting 
authority. Otherwise, your NPDES permitting authority is the EPA 
Regional Office.
    (b) You must seek authorization to discharge under a general or 
individual NPDES permit, as follows:
    (1) If your NPDES permitting authority has issued a general permit 
applicable to your discharge and you are seeking coverage under the 
general permit, you must submit a Notice of Intent (NOI) that includes 
the information on your best management practices and measurable goals 
required by Sec. 122.34(d). You may file your own NOI, or you and other 
municipalities or governmental entities may jointly submit an NOI. If 
you want to share responsibilities for meeting the minimum measures with 
other municipalities or governmental entities, you must submit an NOI 
that describes which minimum measures you will implement and identify 
the entities that will implement the other minimum measures within the 
area served by your MS4. The general permit will explain any other steps 
necessary to obtain permit authorization.
    (2)(i) If you are seeking authorization to discharge under an 
individual permit and wish to implement a program under Sec. 122.34, 
you must submit an application to your NPDES permitting authority that 
includes the information required under Sec. Sec. 122.21(f) and 
122.34(d), an estimate of square mileage served by your small MS4, and 
any additional information that your NPDES permitting authority 
requests. A storm sewer map that satisfies the requirement of Sec. 
122.34(b)(3)(i) will satisfy the map requirement in Sec. 122.21(f)(7).
    (ii) If you are seeking authorization to discharge under an 
individual permit and wish to implement a program that is different from 
the program under Sec. 122.34, you will need to comply with the permit 
application requirements of Sec. 122.26(d). You must submit both Parts 
of the application requirements in Sec. Sec. 122.26(d)(1) and (2) by 
March 10, 2003. You do not need to submit the information required by 
Sec. Sec. 122.26(d)(1)(ii) and (d)(2) regarding

[[Page 232]]

your legal authority, unless you intend for the permit writer to take 
such information into account when developing your other permit 
conditions.
    (iii) If allowed by your NPDES permitting authority, you and another 
regulated entity may jointly apply under either paragraph (b)(2)(i) or 
(b)(2)(ii) of this section to be co-permittees under an individual 
permit.
    (3) If your small MS4 is in the same urbanized area as a medium or 
large MS4 with an NPDES storm water permit and that other MS4 is willing 
to have you participate in its storm water program, you and the other 
MS4 may jointly seek a modification of the other MS4 permit to include 
you as a limited co-permittee. As a limited co-permittee, you will be 
responsible for compliance with the permit's conditions applicable to 
your jurisdiction. If you choose this option you will need to comply 
with the permit application requirements of Sec. 122.26, rather than 
the requirements of Sec. 122.34. You do not need to comply with the 
specific application requirements of Sec. 122.26(d)(1)(iii) and (iv) 
and (d)(2)(iii) (discharge characterization). You may satisfy the 
requirements in Sec. 122.26 (d)(1)(v) and (d)(2)(iv) (identification of 
a management program) by referring to the other MS4's storm water 
management program.
    (4) Guidance: In referencing an MS4's storm water management 
program, you should briefly describe how the existing plan will address 
discharges from your small MS4 or would need to be supplemented in order 
to adequately address your discharges. You should also explain your role 
in coordinating storm water pollutant control activities in your MS4, 
and detail the resources available to you to accomplish the plan.
    (c) If you operate a regulated small MS4:
    (1) Designated under Sec. 122.32(a)(1), you must apply for coverage 
under an NPDES permit, or apply for a modification of an existing NPDES 
permit under paragraph (b)(3) of this section by March 10, 2003, unless 
your MS4 serves a jurisdiction with a population under 10,000 and the 
NPDES permitting authority has established a phasing schedule under 
Sec. 123.35(d)(3) of this chapter.
    (2) Designated under Sec. 122.32(a)(2), you must apply for coverage 
under an NPDES permit, or apply for a modification of an existing NPDES 
permit under paragraph (b)(3) of this section, within 180 days of 
notice, unless the NPDES permitting authority grants a later date.

[64 FR 68843, Dec. 8, 1999]



Sec. 122.34  As an operator of a regulated small MS4, what will my NPDES MS4 

storm water permit require?

    (a) Your NPDES MS4 permit will require at a minimum that you 
develop, implement, and enforce a storm water management program 
designed to reduce the discharge of pollutants from your MS4 to the 
maximum extent practicable (MEP), to protect water quality, and to 
satisfy the appropriate water quality requirements of the Clean Water 
Act. Your storm water management program must include the minimum 
control measures described in paragraph (b) of this section unless you 
apply for a permit under Sec. 122.26(d). For purposes of this section, 
narrative effluent limitations requiring implementation of best 
management practices (BMPs) are generally the most appropriate form of 
effluent limitations when designed to satisfy technology requirements 
(including reductions of pollutants to the maximum extent practicable) 
and to protect water quality. Implementation of best management 
practices consistent with the provisions of the storm water management 
program required pursuant to this section and the provisions of the 
permit required pursuant to Sec. 122.33 constitutes compliance with the 
standard of reducing pollutants to the ``maximum extent practicable.'' 
Your NPDES permitting authority will specify a time period of up to 5 
years from the date of permit issuance for you to develop and implement 
your program.
    (b) Minimum control measures--(1) Public education and outreach on 
storm water impacts. (i) You must implement a public education program 
to distribute educational materials to the community or conduct 
equivalent outreach activities about the impacts of storm

[[Page 233]]

water discharges on water bodies and the steps that the public can take 
to reduce pollutants in storm water runoff.
    (ii) Guidance: You may use storm water educational materials 
provided by your State, Tribe, EPA, environmental, public interest or 
trade organizations, or other MS4s. The public education program should 
inform individuals and households about the steps they can take to 
reduce storm water pollution, such as ensuring proper septic system 
maintenance, ensuring the proper use and disposal of landscape and 
garden chemicals including fertilizers and pesticides, protecting and 
restoring riparian vegetation, and properly disposing of used motor oil 
or household hazardous wastes. EPA recommends that the program inform 
individuals and groups how to become involved in local stream and beach 
restoration activities as well as activities that are coordinated by 
youth service and conservation corps or other citizen groups. EPA 
recommends that the public education program be tailored, using a mix of 
locally appropriate strategies, to target specific audiences and 
communities. Examples of strategies include distributing brochures or 
fact sheets, sponsoring speaking engagements before community groups, 
providing public service announcements, implementing educational 
programs targeted at school age children, and conducting community-based 
projects such as storm drain stenciling, and watershed and beach 
cleanups. In addition, EPA recommends that some of the materials or 
outreach programs be directed toward targeted groups of commercial, 
industrial, and institutional entities likely to have significant storm 
water impacts. For example, providing information to restaurants on the 
impact of grease clogging storm drains and to garages on the impact of 
oil discharges. You are encouraged to tailor your outreach program to 
address the viewpoints and concerns of all communities, particularly 
minority and disadvantaged communities, as well as any special concerns 
relating to children.
    (2) Public involvement/participation. (i) You must, at a minimum, 
comply with State, Tribal and local public notice requirements when 
implementing a public involvement/ participation program.
    (ii) Guidance: EPA recommends that the public be included in 
developing, implementing, and reviewing your storm water management 
program and that the public participation process should make efforts to 
reach out and engage all economic and ethnic groups. Opportunities for 
members of the public to participate in program development and 
implementation include serving as citizen representatives on a local 
storm water management panel, attending public hearings, working as 
citizen volunteers to educate other individuals about the program, 
assisting in program coordination with other pre-existing programs, or 
participating in volunteer monitoring efforts. (Citizens should obtain 
approval where necessary for lawful access to monitoring sites.)
    (3) Illicit discharge detection and elimination. (i) You must 
develop, implement and enforce a program to detect and eliminate illicit 
discharges (as defined at Sec. 122.26(b)(2)) into your small MS4.
    (ii) You must:
    (A) Develop, if not already completed, a storm sewer system map, 
showing the location of all outfalls and the names and location of all 
waters of the United States that receive discharges from those outfalls;
    (B) To the extent allowable under State, Tribal or local law, 
effectively prohibit, through ordinance, or other regulatory mechanism, 
non-storm water discharges into your storm sewer system and implement 
appropriate enforcement procedures and actions;
    (C) Develop and implement a plan to detect and address non-storm 
water discharges, including illegal dumping, to your system; and
    (D) Inform public employees, businesses, and the general public of 
hazards associated with illegal discharges and improper disposal of 
waste.
    (iii) You need address the following categories of non-storm water 
discharges or flows (i.e., illicit discharges) only if you identify them 
as significant contributors of pollutants to your small MS4: water line 
flushing, landscape irrigation, diverted stream flows,

[[Page 234]]

rising ground waters, uncontaminated ground water infiltration (as 
defined at 40 CFR 35.2005(20)), uncontaminated pumped ground water, 
discharges from potable water sources, foundation drains, air 
conditioning condensation, irrigation water, springs, water from crawl 
space pumps, footing drains, lawn watering, individual residential car 
washing, flows from riparian habitats and wetlands, dechlorinated 
swimming pool discharges, and street wash water (discharges or flows 
from fire fighting activities are excluded from the effective 
prohibition against non-storm water and need only be addressed where 
they are identified as significant sources of pollutants to waters of 
the United States).
    (iv) Guidance: EPA recommends that the plan to detect and address 
illicit discharges include the following four components: procedures for 
locating priority areas likely to have illicit discharges; procedures 
for tracing the source of an illicit discharge; procedures for removing 
the source of the discharge; and procedures for program evaluation and 
assessment. EPA recommends visually screening outfalls during dry 
weather and conducting field tests of selected pollutants as part of the 
procedures for locating priority areas. Illicit discharge education 
actions may include storm drain stenciling, a program to promote, 
publicize, and facilitate public reporting of illicit connections or 
discharges, and distribution of outreach materials.
    (4) Construction site storm water runoff control. (i) You must 
develop, implement, and enforce a program to reduce pollutants in any 
storm water runoff to your small MS4 from construction activities that 
result in a land disturbance of greater than or equal to one acre. 
Reduction of storm water discharges from construction activity 
disturbing less than one acre must be included in your program if that 
construction activity is part of a larger common plan of development or 
sale that would disturb one acre or more. If the NPDES permitting 
authority waives requirements for storm water discharges associated with 
small construction activity in accordance with Sec. 122.26(b)(15)(i), 
you are not required to develop, implement, and/or enforce a program to 
reduce pollutant discharges from such sites.
    (ii) Your program must include the development and implementation 
of, at a minimum:
    (A) An ordinance or other regulatory mechanism to require erosion 
and sediment controls, as well as sanctions to ensure compliance, to the 
extent allowable under State, Tribal, or local law;
    (B) Requirements for construction site operators to implement 
appropriate erosion and sediment control best management practices;
    (C) Requirements for construction site operators to control waste 
such as discarded building materials, concrete truck washout, chemicals, 
litter, and sanitary waste at the construction site that may cause 
adverse impacts to water quality;
    (D) Procedures for site plan review which incorporate consideration 
of potential water quality impacts;
    (E) Procedures for receipt and consideration of information 
submitted by the public, and
    (F) Procedures for site inspection and enforcement of control 
measures.
    (iii) Guidance: Examples of sanctions to ensure compliance include 
non-monetary penalties, fines, bonding requirements and/or permit 
denials for non-compliance. EPA recommends that procedures for site plan 
review include the review of individual pre-construction site plans to 
ensure consistency with local sediment and erosion control requirements. 
Procedures for site inspections and enforcement of control measures 
could include steps to identify priority sites for inspection and 
enforcement based on the nature of the construction activity, 
topography, and the characteristics of soils and receiving water 
quality. You are encouraged to provide appropriate educational and 
training measures for construction site operators. You may wish to 
require a storm water pollution prevention plan for construction sites 
within your jurisdiction that discharge into your system. See Sec. 
122.44(s) (NPDES permitting authorities' option to incorporate 
qualifying State, Tribal and local erosion and sediment control programs 
into NPDES permits for storm water discharges from construction sites).

[[Page 235]]

Also see Sec. 122.35(b) (The NPDES permitting authority may recognize 
that another government entity, including the permitting authority, may 
be responsible for implementing one or more of the minimum measures on 
your behalf.)
    (5) Post-construction storm water management in new development and 
redevelopment. (i) You must develop, implement, and enforce a program to 
address storm water runoff from new development and redevelopment 
projects that disturb greater than or equal to one acre, including 
projects less than one acre that are part of a larger common plan of 
development or sale, that discharge into your small MS4. Your program 
must ensure that controls are in place that would prevent or minimize 
water quality impacts.
    (ii) You must:
    (A) Develop and implement strategies which include a combination of 
structural and/or non-structural best management practices (BMPs) 
appropriate for your community;
    (B) Use an ordinance or other regulatory mechanism to address post-
construction runoff from new development and redevelopment projects to 
the extent allowable under State, Tribal or local law; and
    (C) Ensure adequate long-term operation and maintenance of BMPs.
    (iii) Guidance: If water quality impacts are considered from the 
beginning stages of a project, new development and potentially 
redevelopment provide more opportunities for water quality protection. 
EPA recommends that the BMPs chosen: be appropriate for the local 
community; minimize water quality impacts; and attempt to maintain pre-
development runoff conditions. In choosing appropriate BMPs, EPA 
encourages you to participate in locally-based watershed planning 
efforts which attempt to involve a diverse group of stakeholders 
including interested citizens. When developing a program that is 
consistent with this measure's intent, EPA recommends that you adopt a 
planning process that identifies the municipality's program goals (e.g., 
minimize water quality impacts resulting from post-construction runoff 
from new development and redevelopment), implementation strategies 
(e.g., adopt a combination of structural and/or non-structural BMPs), 
operation and maintenance policies and procedures, and enforcement 
procedures. In developing your program, you should consider assessing 
existing ordinances, policies, programs and studies that address storm 
water runoff quality. In addition to assessing these existing documents 
and programs, you should provide opportunities to the public to 
participate in the development of the program. Non-structural BMPs are 
preventative actions that involve management and source controls such 
as: policies and ordinances that provide requirements and standards to 
direct growth to identified areas, protect sensitive areas such as 
wetlands and riparian areas, maintain and/or increase open space 
(including a dedicated funding source for open space acquisition), 
provide buffers along sensitive water bodies, minimize impervious 
surfaces, and minimize disturbance of soils and vegetation; policies or 
ordinances that encourage infill development in higher density urban 
areas, and areas with existing infrastructure; education programs for 
developers and the public about project designs that minimize water 
quality impacts; and measures such as minimization of percent impervious 
area after development and minimization of directly connected impervious 
areas. Structural BMPs include: storage practices such as wet ponds and 
extended-detention outlet structures; filtration practices such as 
grassed swales, sand filters and filter strips; and infiltration 
practices such as infiltration basins and infiltration trenches. EPA 
recommends that you ensure the appropriate implementation of the 
structural BMPs by considering some or all of the following: pre-
construction review of BMP designs; inspections during construction to 
verify BMPs are built as designed; post-construction inspection and 
maintenance of BMPs; and penalty provisions for the noncompliance with 
design, construction or operation and maintenance. Storm water 
technologies are constantly being improved, and EPA recommends that your 
requirements be responsive to these changes, developments or 
improvements in control technologies.

[[Page 236]]

    (6) Pollution prevention/good housekeeping for municipal operations. 
(i) You must develop and implement an operation and maintenance program 
that includes a training component and has the ultimate goal of 
preventing or reducing pollutant runoff from municipal operations. Using 
training materials that are available from EPA, your State, Tribe, or 
other organizations, your program must include employee training to 
prevent and reduce storm water pollution from activities such as park 
and open space maintenance, fleet and building maintenance, new 
construction and land disturbances, and storm water system maintenance.
    (ii) Guidance: EPA recommends that, at a minimum, you consider the 
following in developing your program: maintenance activities, 
maintenance schedules, and long-term inspection procedures for 
structural and non-structural storm water controls to reduce floatables 
and other pollutants discharged from your separate storm sewers; 
controls for reducing or eliminating the discharge of pollutants from 
streets, roads, highways, municipal parking lots, maintenance and 
storage yards, fleet or maintenance shops with outdoor storage areas, 
salt/sand storage locations and snow disposal areas operated by you, and 
waste transfer stations; procedures for properly disposing of waste 
removed from the separate storm sewers and areas listed above (such as 
dredge spoil, accumulated sediments, floatables, and other debris); and 
ways to ensure that new flood management projects assess the impacts on 
water quality and examine existing projects for incorporating additional 
water quality protection devices or practices. Operation and maintenance 
should be an integral component of all storm water management programs. 
This measure is intended to improve the efficiency of these programs and 
require new programs where necessary. Properly developed and implemented 
operation and maintenance programs reduce the risk of water quality 
problems.
    (c) If an existing qualifying local program requires you to 
implement one or more of the minimum control measures of paragraph (b) 
of this section, the NPDES permitting authority may include conditions 
in your NPDES permit that direct you to follow that qualifying program's 
requirements rather than the requirements of paragraph (b) of this 
section. A qualifying local program is a local, State or Tribal 
municipal storm water management program that imposes, at a minimum, the 
relevant requirements of paragraph (b) of this section.
    (d)(1) In your permit application (either a notice of intent for 
coverage under a general permit or an individual permit application), 
you must identify and submit to your NPDES permitting authority the 
following information:
    (i) The best management practices (BMPs) that you or another entity 
will implement for each of the storm water minimum control measures at 
paragraphs (b)(1) through (b)(6) of this section;
    (ii) The measurable goals for each of the BMPs including, as 
appropriate, the months and years in which you will undertake required 
actions, including interim milestones and the frequency of the action; 
and
    (iii) The person or persons responsible for implementing or 
coordinating your storm water management program.
    (2) If you obtain coverage under a general permit, you are not 
required to meet any measurable goal(s) identified in your notice of 
intent in order to demonstrate compliance with the minimum control 
measures in paragraphs (b)(3) through (b)(6) of this section unless, 
prior to submitting your NOI, EPA or your State or Tribe has provided or 
issued a menu of BMPs that addresses each such minimum measure. Even if 
no regulatory authority issues the menu of BMPs, however, you still must 
comply with other requirements of the general permit, including good 
faith implementation of BMPs designed to comply with the minimum 
measures.
    (3) Guidance: Either EPA or your State or Tribal permitting 
authority will provide a menu of BMPs. You may choose BMPs from the menu 
or select others that satisfy the minimum control measures.
    (e)(1) You must comply with any more stringent effluent limitations 
in

[[Page 237]]

your permit, including permit requirements that modify, or are in 
addition to, the minimum control measures based on an approved total 
maximum daily load (TMDL) or equivalent analysis. The permitting 
authority may include such more stringent limitations based on a TMDL or 
equivalent analysis that determines such limitations are needed to 
protect water quality.
    (2) Guidance: EPA strongly recommends that until the evaluation of 
the storm water program in Sec. 122.37, no additional requirements 
beyond the minimum control measures be imposed on regulated small MS4s 
without the agreement of the operator of the affected small MS4, except 
where an approved TMDL or equivalent analysis provides adequate 
information to develop more specific measures to protect water quality.
    (f) You must comply with other applicable NPDES permit requirements, 
standards and conditions established in the individual or general 
permit, developed consistent with the provisions of Sec. Sec. 122.41 
through 122.49, as appropriate.
    (g) Evaluation and assessment--(1) Evaluation. You must evaluate 
program compliance, the appropriateness of your identified best 
management practices, and progress towards achieving your identified 
measurable goals.

    Note to paragraph (g)(1): The NPDES permitting authority may 
determine monitoring requirements for you in accordance with State/
Tribal monitoring plans appropriate to your watershed. Participation in 
a group monitoring program is encouraged.

    (2) Recordkeeping. You must keep records required by the NPDES 
permit for at least 3 years. You must submit your records to the NPDES 
permitting authority only when specifically asked to do so. You must 
make your records, including a description of your storm water 
management program, available to the public at reasonable times during 
regular business hours (see Sec. 122.7 for confidentiality provision). 
(You may assess a reasonable charge for copying. You may require a 
member of the public to provide advance notice.)
    (3) Reporting. Unless you are relying on another entity to satisfy 
your NPDES permit obligations under Sec. 122.35(a), you must submit 
annual reports to the NPDES permitting authority for your first permit 
term. For subsequent permit terms, you must submit reports in year two 
and four unless the NPDES permitting authority requires more frequent 
reports. Your report must include:
    (i) The status of compliance with permit conditions, an assessment 
of the appropriateness of your identified best management practices and 
progress towards achieving your identified measurable goals for each of 
the minimum control measures;
    (ii) Results of information collected and analyzed, including 
monitoring data, if any, during the reporting period;
    (iii) A summary of the storm water activities you plan to undertake 
during the next reporting cycle;
    (iv) A change in any identified best management practices or 
measurable goals for any of the minimum control measures; and
    (v) Notice that you are relying on another governmental entity to 
satisfy some of your permit obligations (if applicable).

[64 FR 68843, Dec. 8, 1999]



Sec. 122.35  As an operator of a regulated small MS4, may I share the 

responsibility to implement the minimum control measures with other entities?

    (a) You may rely on another entity to satisfy your NPDES permit 
obligations to implement a minimum control measure if:
    (1) The other entity, in fact, implements the control measure;
    (2) The particular control measure, or component thereof, is at 
least as stringent as the corresponding NPDES permit requirement; and
    (3) The other entity agrees to implement the control measure on your 
behalf. In the reports you must submit under Sec. 122.34(g)(3), you 
must also specify that you rely on another entity to satisfy some of 
your permit obligations. If you are relying on another governmental 
entity regulated under section 122 to satisfy all of your permit 
obligations, including your obligation to file periodic reports required 
by Sec. 122.34(g)(3), you must note that fact in your NOI, but you are 
not required to file the periodic reports. You remain

[[Page 238]]

responsible for compliance with your permit obligations if the other 
entity fails to implement the control measure (or component thereof). 
Therefore, EPA encourages you to enter into a legally binding agreement 
with that entity if you want to minimize any uncertainty about 
compliance with your permit.
    (b) In some cases, the NPDES permitting authority may recognize, 
either in your individual NPDES permit or in an NPDES general permit, 
that another governmental entity is responsible under an NPDES permit 
for implementing one or more of the minimum control measures for your 
small MS4 or that the permitting authority itself is responsible. Where 
the permitting authority does so, you are not required to include such 
minimum control measure(s) in your storm water management program. (For 
example, if a State or Tribe is subject to an NPDES permit that requires 
it to administer a program to control construction site runoff at the 
State or Tribal level and that program satisfies all of the requirements 
of Sec. 122.34(b)(4), you could avoid responsibility for the 
construction measure, but would be responsible for the remaining minimum 
control measures.) Your permit may be reopened and modified to include 
the requirement to implement a minimum control measure if the entity 
fails to implement it.

[64 FR 68846, Dec. 8, 1999]



Sec. 122.36  As an operator of a regulated small MS4, what happens if I don't 

comply with the application or permit requirements in Sec. Sec. 122.33 through 

122.35?

    NPDES permits are federally enforceable. Violators may be subject to 
the enforcement actions and penalties described in Clean Water Act 
sections 309 (b), (c), and (g) and 505, or under applicable State, 
Tribal, or local law. Compliance with a permit issued pursuant to 
section 402 of the Clean Water Act is deemed compliance, for purposes of 
sections 309 and 505, with sections 301, 302, 306, 307, and 403, except 
any standard imposed under section 307 for toxic pollutants injurious to 
human health. If you are covered as a co-permittee under an individual 
permit or under a general permit by means of a joint Notice of Intent 
you remain subject to the enforcement actions and penalties for the 
failure to comply with the terms of the permit in your jurisdiction 
except as set forth in Sec. 122.35(b).

[64 FR 68847, Dec. 8, 1999]



Sec. 122.37  Will the small MS4 storm water program regulations at Sec. Sec. 

122.32 through 122.36 and Sec. 123.35 of this chapter change in the future?

    EPA will evaluate the small MS4 regulations at Sec. Sec. 122.32 
through 122.36 and Sec. 123.35 of this chapter after December 10, 2012 
and make any necessary revisions. (EPA intends to conduct an enhanced 
research effort and compile a comprehensive evaluation of the NPDES MS4 
storm water program. EPA will re-evaluate the regulations based on data 
from the NPDES MS4 storm water program, from research on receiving water 
impacts from storm water, and the effectiveness of best management 
practices (BMPs), as well as other relevant information sources.)

[64 FR 68847, Dec. 8, 1999]



                       Subpart C_Permit Conditions



Sec. 122.41  Conditions applicable to all permits (applicable to State 

programs, see Sec. 123.25).

    The following conditions apply to all NPDES permits. Additional 
conditions applicable to NPDES permits are in Sec. 122.42. All 
conditions applicable to NPDES permits shall be incorporated into the 
permits either expressly or by reference. If incorporated by reference, 
a specific citation to these regulations (or the corresponding approved 
State regulations) must be given in the permit.
    (a) Duty to comply. The permittee must comply with all conditions of 
this permit. Any permit noncompliance constitutes a violation of the 
Clean Water Act and is grounds for enforcement action; for permit 
termination, revocation and reissuance, or modification; or denial of a 
permit renewal application.
    (1) The permittee shall comply with effluent standards or 
prohibitions established under section 307(a) of the Clean Water Act for 
toxic pollutants

[[Page 239]]

and with standards for sewage sludge use or disposal established under 
section 405(d) of the CWA within the time provided in the regulations 
that establish these standards or prohibitions or standards for sewage 
sludge use or disposal, even if the permit has not yet been modified to 
incorporate the requirement.
    (2) The Clean Water Act provides that any person who violates 
section 301, 302, 306, 307, 308, 318 or 405 of the Act, or any permit 
condition or limitation implementing any such sections in a permit 
issued under section 402, or any requirement imposed in a pretreatment 
program approved under sections 402(a)(3) or 402(b)(8) of the Act, is 
subject to a civil penalty not to exceed $25,000 per day for each 
violation. The Clean Water Act provides that any person who negligently 
violates sections 301, 302, 306, 307, 308, 318, or 405 of the Act, or 
any condition or limitation implementing any of such sections in a 
permit issued under section 402 of the Act, or any requirement imposed 
in a pretreatment program approved under section 402(a)(3) or 402(b)(8) 
of the Act, is subject to criminal penalties of $2,500 to $25,000 per 
day of violation, or imprisonment of not more than 1 year, or both. In 
the case of a second or subsequent conviction for a negligent violation, 
a person shall be subject to criminal penalties of not more than $50,000 
per day of violation, or by imprisonment of not more than 2 years, or 
both. Any person who knowingly violates such sections, or such 
conditions or limitations is subject to criminal penalties of $5,000 to 
$50,000 per day of violation, or imprisonment for not more than 3 years, 
or both. In the case of a second or subsequent conviction for a knowing 
violation, a person shall be subject to criminal penalties of not more 
than $100,000 per day of violation, or imprisonment of not more than 6 
years, or both. Any person who knowingly violates section 301, 302, 303, 
306, 307, 308, 318 or 405 of the Act, or any permit condition or 
limitation implementing any of such sections in a permit issued under 
section 402 of the Act, and who knows at that time that he thereby 
places another person in imminent danger of death or serious bodily 
injury, shall, upon conviction, be subject to a fine of not more than 
$250,000 or imprisonment of not more than 15 years, or both. In the case 
of a second or subsequent conviction for a knowing endangerment 
violation, a person shall be subject to a fine of not more than $500,000 
or by imprisonment of not more than 30 years, or both. An organization, 
as defined in section 309(c)(3)(B)(iii) of the CWA, shall, upon 
conviction of violating the imminent danger provision, be subject to a 
fine of not more than $1,000,000 and can be fined up to $2,000,000 for 
second or subsequent convictions.
    (3) Any person may be assessed an administrative penalty by the 
Administrator for violating section 301, 302, 306, 307, 308, 318 or 405 
of this Act, or any permit condition or limitation implementing any of 
such sections in a permit issued under section 402 of this Act. 
Administrative penalties for Class I violations are not to exceed 
$10,000 per violation, with the maximum amount of any Class I penalty 
assessed not to exceed $25,000. Penalties for Class II violations are 
not to exceed $10,000 per day for each day during which the violation 
continues, with the maximum amount of any Class II penalty not to exceed 
$125,000.
    (b) Duty to reapply. If the permittee wishes to continue an activity 
regulated by this permit after the expiration date of this permit, the 
permittee must apply for and obtain a new permit.
    (c) Need to halt or reduce activity not a defense. It shall not be a 
defense for a permittee in an enforcement action that it would have been 
necessary to halt or reduce the permitted activity in order to maintain 
compliance with the conditions of this permit.
    (d) Duty to mitigate. The permittee shall take all reasonable steps 
to minimize or prevent any discharge or sludge use or disposal in 
violation of this permit which has a reasonable likelihood of adversely 
affecting human health or the environment.
    (e) Proper operation and maintenance. The permittee shall at all 
times properly operate and maintain all facilities and systems of 
treatment and control (and related appurtenances) which are installed or 
used by the permittee to achieve compliance with the conditions

[[Page 240]]

of this permit. Proper operation and maintenance also includes adequate 
laboratory controls and appropriate quality assurance procedures. This 
provision requires the operation of back-up or auxiliary facilities or 
similar systems which are installed by a permittee only when the 
operation is necessary to achieve compliance with the conditions of the 
permit.
    (f) Permit actions. This permit may be modified, revoked and 
reissued, or terminated for cause. The filing of a request by the 
permittee for a permit modification, revocation and reissuance, or 
termination, or a notification of planned changes or anticipated 
noncompliance does not stay any permit condition.
    (g) Property rights. This permit does not convey any property rights 
of any sort, or any exclusive privilege.
    (h) Duty to provide information. The permittee shall furnish to the 
Director, within a reasonable time, any information which the Director 
may request to determine whether cause exists for modifying, revoking 
and reissuing, or terminating this permit or to determine compliance 
with this permit. The permittee shall also furnish to the Director upon 
request, copies of records required to be kept by this permit.
    (i) Inspection and entry. The permittee shall allow the Director, or 
an authorized representative (including an authorized contractor acting 
as a representative of the Administrator), upon presentation of 
credentials and other documents as may be required by law, to:
    (1) Enter upon the permittee's premises where a regulated facility 
or activity is located or conducted, or where records must be kept under 
the conditions of this permit;
    (2) Have access to and copy, at reasonable times, any records that 
must be kept under the conditions of this permit;
    (3) Inspect at reasonable times any facilities, equipment (including 
monitoring and control equipment), practices, or operations regulated or 
required under this permit; and
    (4) Sample or monitor at reasonable times, for the purposes of 
assuring permit compliance or as otherwise authorized by the Clean Water 
Act, any substances or parameters at any location.
    (j) Monitoring and records. (1) Samples and measurements taken for 
the purpose of monitoring shall be representative of the monitored 
activity.
    (2) Except for records of monitoring information required by this 
permit related to the permittee's sewage sludge use and disposal 
activities, which shall be retained for a period of at least five years 
(or longer as required by 40 CFR part 503), the permittee shall retain 
records of all monitoring information, including all calibration and 
maintenance records and all original strip chart recordings for 
continuous monitoring instrumentation, copies of all reports required by 
this permit, and records of all data used to complete the application 
for this permit, for a period of at least 3 years from the date of the 
sample, measurement, report or application. This period may be extended 
by request of the Director at any time.
    (3) Records of monitoring information shall include:
    (i) The date, exact place, and time of sampling or measurements;
    (ii) The individual(s) who performed the sampling or measurements;
    (iii) The date(s) analyses were performed;
    (iv) The individual(s) who performed the analyses;
    (v) The analytical techniques or methods used; and
    (vi) The results of such analyses.
    (4) Monitoring must be conducted according to test procedures 
approved under 40 CFR Part 136 unless another method is required under 
40 CFR subchapters N or O.
    (5) The Clean Water Act provides that any person who falsifies, 
tampers with, or knowingly renders inaccurate any monitoring device or 
method required to be maintained under this permit shall, upon 
conviction, be punished by a fine of not more than $10,000, or by 
imprisonment for not more than 2 years, or both. If a conviction of a 
person is for a violation committed after a first conviction of such 
person under this paragraph, punishment is a fine of not more than 
$20,000 per day of violation, or by imprisonment of not more than 4 
years, or both.

[[Page 241]]

    (k) Signatory requirement. (1) All applications, reports, or 
information submitted to the Director shall be signed and certified. 
(See Sec. 122.22)
    (2) The CWA provides that any person who knowingly makes any false 
statement, representation, or certification in any record or other 
document submitted or required to be maintained under this permit, 
including monitoring reports or reports of compliance or non-compliance 
shall, upon conviction, be punished by a fine of not more than $10,000 
per violation, or by imprisonment for not more than 6 months per 
violation, or by both.
    (l) Reporting requirements--(1) Planned changes. The permittee shall 
give notice to the Director as soon as possible of any planned physical 
alterations or additions to the permitted facility. Notice is required 
only when:
    (i) The alteration or addition to a permitted facility may meet one 
of the criteria for determining whether a facility is a new source in 
Sec. 122.29(b); or
    (ii) The alteration or addition could significantly change the 
nature or increase the quantity of pollutants discharged. This 
notification applies to pollutants which are subject neither to effluent 
limitations in the permit, nor to notification requirements under Sec. 
122.42(a)(1).
    (iii) The alteration or addition results in a significant change in 
the permittee's sludge use or disposal practices, and such alteration, 
addition, or change may justify the application of permit conditions 
that are different from or absent in the existing permit, including 
notification of additional use or disposal sites not reported during the 
permit application process or not reported pursuant to an approved land 
application plan;
    (2) Anticipated noncompliance. The permittee shall give advance 
notice to the Director of any planned changes in the permitted facility 
or activity which may result in noncompliance with permit requirements.
    (3) Transfers. This permit is not transferable to any person except 
after notice to the Director. The Director may require modification or 
revocation and reissuance of the permit to change the name of the 
permittee and incorporate such other requirements as may be necessary 
under the Clean Water Act. (See Sec. 122.61; in some cases, 
modification or revocation and reissuance is mandatory.)
    (4) Monitoring reports. Monitoring results shall be reported at the 
intervals specified elsewhere in this permit.
    (i) Monitoring results must be reported on a Discharge Monitoring 
Report (DMR) or forms provided or specified by the Director for 
reporting results of monitoring of sludge use or disposal practices.
    (ii) If the permittee monitors any pollutant more frequently than 
required by the permit using test procedures approved under 40 CFR Part 
136, or another method required for an industry-specific waste stream 
under 40 CFR subchapters N or O, the results of such monitoring shall be 
included in the calculation and reporting of the data submitted in the 
DMR or sludge reporting form specified by the Director.
    (iii) Calculations for all limitations which require averaging of 
measurements shall utilize an arithmetic mean unless otherwise specified 
by the Director in the permit.
    (5) Compliance schedules. Reports of compliance or noncompliance 
with, or any progress reports on, interim and final requirements 
contained in any compliance schedule of this permit shall be submitted 
no later than 14 days following each schedule date.
    (6) Twenty-four hour reporting. (i) The permittee shall report any 
noncompliance which may endanger health or the environment. Any 
information shall be provided orally within 24 hours from the time the 
permittee becomes aware of the circumstances. A written submission shall 
also be provided within 5 days of the time the permittee becomes aware 
of the circumstances. The written submission shall contain a description 
of the noncompliance and its cause; the period of noncompliance, 
including exact dates and times, and if the noncompliance has not been 
corrected, the anticipated time it is expected to continue; and steps 
taken or planned to reduce, eliminate, and prevent reoccurrence of the 
noncompliance.

[[Page 242]]

    (ii) The following shall be included as information which must be 
reported within 24 hours under this paragraph.
    (A) Any unanticipated bypass which exceeds any effluent limitation 
in the permit. (See Sec. 122.41(g).
    (B) Any upset which exceeds any effluent limitation in the permit.
    (C) Violation of a maximum daily discharge limitation for any of the 
pollutants listed by the Director in the permit to be reported within 24 
hours. (See Sec. 122.44(g).)
    (iii) The Director may waive the written report on a case-by-case 
basis for reports under paragraph (l)(6)(ii) of this section if the oral 
report has been received within 24 hours.
    (7) Other noncompliance. The permittee shall report all instances of 
noncompliance not reported under paragraphs (l) (4), (5), and (6) of 
this section, at the time monitoring reports are submitted. The reports 
shall contain the information listed in paragraph (l)(6) of this 
section.
    (8) Other information. Where the permittee becomes aware that it 
failed to submit any relevant facts in a permit application, or 
submitted incorrect information in a permit application or in any report 
to the Director, it shall promptly submit such facts or information.
    (m) Bypass--(1) Definitions. (i) Bypass means the intentional 
diversion of waste streams from any portion of a treatment facility.
    (ii) Severe property damage means substantial physical damage to 
property, damage to the treatment facilities which causes them to become 
inoperable, or substantial and permanent loss of natural resources which 
can reasonably be expected to occur in the absence of a bypass. Severe 
property damage does not mean economic loss caused by delays in 
production.
    (2) Bypass not exceeding limitations. The permittee may allow any 
bypass to occur which does not cause effluent limitations to be 
exceeded, but only if it also is for essential maintenance to assure 
efficient operation. These bypasses are not subject to the provisions of 
paragraphs (m)(3) and (m)(4) of this section.
    (3) Notice--(i) Anticipated bypass. If the permittee knows in 
advance of the need for a bypass, it shall submit prior notice, if 
possible at least ten days before the date of the bypass.
    (ii) Unanticipated bypass. The permittee shall submit notice of an 
unanticipated bypass as required in paragraph (l)(6) of this section 
(24-hour notice).
    (4) Prohibition of bypass. (i) Bypass is prohibited, and the 
Director may take enforcement action against a permittee for bypass, 
unless:
    (A) Bypass was unavoidable to prevent loss of life, personal injury, 
or severe property damage;
    (B) There were no feasible alternatives to the bypass, such as the 
use of auxiliary treatment facilities, retention of untreated wastes, or 
maintenance during normal periods of equipment downtime. This condition 
is not satisfied if adequate back-up equipment should have been 
installed in the exercise of reasonable engineering judgment to prevent 
a bypass which occurred during normal periods of equipment downtime or 
preventive maintenance; and
    (C) The permittee submitted notices as required under paragraph 
(m)(3) of this section.
    (ii) The Director may approve an anticipated bypass, after 
considering its adverse effects, if the Director determines that it will 
meet the three conditions listed above in paragraph (m)(4)(i) of this 
section.
    (n) Upset--(1) Definition. Upset means an exceptional incident in 
which there is unintentional and temporary noncompliance with technology 
based permit effluent limitations because of factors beyond the 
reasonable control of the permittee. An upset does not include 
noncompliance to the extent caused by operational error, improperly 
designed treatment facilities, inadequate treatment facilities, lack of 
preventive maintenance, or careless or improper operation.
    (2) Effect of an upset. An upset constitutes an affirmative defense 
to an action brought for noncompliance with such technology based permit 
effluent limitations if the requirements of paragraph (n)(3) of this 
section are met. No determination made during administrative review of 
claims that noncompliance was caused by upset, and

[[Page 243]]

before an action for noncompliance, is final administrative action 
subject to judicial review.
    (3) Conditions necessary for a demonstration of upset. A permittee 
who wishes to establish the affirmative defense of upset shall 
demonstrate, through properly signed, contemporaneous operating logs, or 
other relevant evidence that:
    (i) An upset occurred and that the permittee can identify the 
cause(s) of the upset;
    (ii) The permitted facility was at the time being properly operated; 
and
    (iii) The permittee submitted notice of the upset as required in 
paragraph (1)(6)(ii)(B) of this section (24 hour notice).
    (iv) The permittee complied with any remedial measures required 
under paragraph (d) of this section.
    (4) Burden of proof. In any enforcement proceeding the permittee 
seeking to establish the occurrence of an upset has the burden of proof.

(Clean Water Act (33 U.S.C. 1251 et seq.), Safe Drinking Water Act (42 
U.S.C. 300f et seq.), Clean Air Act (42 U.S.C. 7401 et seq.), Resource 
Conservation and Recovery Act (42 U.S.C. 6901 et seq.))

[48 FR 14153, Apr. 1, 1983, as amended at 48 FR 39620, Sept. 1, 1983; 49 
FR 38049, Sept. 26, 1984; 50 FR 4514, Jan. 31, 1985; 50 FR 6940, Feb. 
19, 1985; 54 FR 255, Jan. 4, 1989; 54 FR 18783, May 2, 1989; 65 FR 
30908, May 15, 2000; 72 FR 11211, Mar. 12, 2007]



Sec. 122.42  Additional conditions applicable to specified categories of NPDES 

permits (applicable to State NPDES programs, see Sec. 123.25).

    The following conditions, in addition to those set forth in Sec. 
122.41, apply to all NPDES permits within the categories specified 
below:
    (a) Existing manufacturing, commercial, mining, and silvicultural 
dischargers. In addition to the reporting requirements under Sec. 
122.41(1), all existing manufacturing, commercial, mining, and 
silvicultural dischargers must notify the Director as soon as they know 
or have reason to believe:
    (1) That any activity has occurred or will occur which would result 
in the discharge, on a routine or frequent basis, of any toxic pollutant 
which is not limited in the permit, if that discharge will exceed the 
highest of the following ``notification levels'':
    (i) One hundred micrograms per liter (100 [micro]g/l);
    (ii) Two hundred micrograms per liter (200 [micro]g/l) for acrolein 
and acrylonitrile; five hundred micrograms per liter (500 [micro]g/l) 
for 2,4-dinitrophenol and for 2-methyl-4,6-dinitrophenol; and one 
milligram per liter (1 mg/l) for antimony;
    (iii) Five (5) times the maximum concentration value reported for 
that pollutant in the permit application in accordance with Sec. 
122.21(g)(7); or
    (iv) The level established by the Director in accordance with Sec. 
122.44(f).
    (2) That any activity has occurred or will occur which would result 
in any discharge, on a non-routine or infrequent basis, of a toxic 
pollutant which is not limited in the permit, if that discharge will 
exceed the highest of the following ``notification levels'':
    (i) Five hundred micrograms per liter (500 [micro]g/l);
    (ii) One milligram per liter (1 mg/l) for antimony;
    (iii) Ten (10) times the maximum concentration value reported for 
that pollutant in the permit application in accordance with Sec. 
122.21(g)(7).
    (iv) The level established by the Director in accordance with Sec. 
122.44(f).
    (b) Publicly owned treatment works. All POTWs must provide adequate 
notice to the Director of the following:
    (1) Any new introduction of pollutants into the POTW from an 
indirect discharger which would be subject to section 301 or 306 of CWA 
if it were directly discharging those pollutants; and
    (2) Any substantial change in the volume or character of pollutants 
being introduced into that POTW by a source introducing pollutants into 
the POTW at the time of issuance of the permit.
    (3) For purposes of this paragraph, adequate notice shall include 
information on (i) the quality and quantity of effluent introduced into 
the POTW, and (ii) any anticipated impact of the change on the quantity 
or quality of effluent to be discharged from the POTW.
    (c) Municipal separate storm sewer systems. The operator of a large 
or medium municipal separate storm sewer

[[Page 244]]

system or a municipal separate storm sewer that has been designated by 
the Director under Sec. 122.26(a)(1)(v) of this part must submit an 
annual report by the anniversary of the date of the issuance of the 
permit for such system. The report shall include:
    (1) The status of implementing the components of the storm water 
management program that are established as permit conditions;
    (2) Proposed changes to the storm water management programs that are 
established as permit condition. Such proposed changes shall be 
consistent with Sec. 122.26(d)(2)(iii) of this part; and
    (3) Revisions, if necessary, to the assessment of controls and the 
fiscal analysis reported in the permit application under Sec. 
122.26(d)(2)(iv) and (d)(2)(v) of this part;
    (4) A summary of data, including monitoring data, that is 
accumulated throughout the reporting year;
    (5) Annual expenditures and budget for year following each annual 
report;
    (6) A summary describing the number and nature of enforcement 
actions, inspections, and public education programs;
    (7) Identification of water quality improvements or degradation;
    (d) Storm water discharges. The initial permits for discharges 
composed entirely of storm water issued pursuant to Sec. 122.26(e)(7) 
of this part shall require compliance with the conditions of the permit 
as expeditiously as practicable, but in no event later than three years 
after the date of issuance of the permit.
    (e) Concentrated animal feeding operations (CAFOs). Any permit 
issued to a CAFO must include the requirements in paragraphs (e)(1) 
through (e)(6) of this section.
    (1) Requirement to implement a nutrient management plan. Any permit 
issued to a CAFO must include a requirement to implement a nutrient 
management plan that, at a minimum, contains best management practices 
necessary to meet the requirements of this paragraph and applicable 
effluent limitations and standards, including those specified in 40 CFR 
part 412. The nutrient management plan must, to the extent applicable:
    (i) Ensure adequate storage of manure, litter, and process 
wastewater, including procedures to ensure proper operation and 
maintenance of the storage facilities;
    (ii) Ensure proper management of mortalities (i.e., dead animals) to 
ensure that they are not disposed of in a liquid manure, storm water, or 
process wastewater storage or treatment system that is not specifically 
designed to treat animal mortalities;
    (iii) Ensure that clean water is diverted, as appropriate, from the 
production area;
    (iv) Prevent direct contact of confined animals with waters of the 
United States;
    (v) Ensure that chemicals and other contaminants handled on-site are 
not disposed of in any manure, litter, process wastewater, or storm 
water storage or treatment system unless specifically designed to treat 
such chemicals and other contaminants;
    (vi) Identify appropriate site specific conservation practices to be 
implemented, including as appropriate buffers or equivalent practices, 
to control runoff of pollutants to waters of the United States;
    (vii) Identify protocols for appropriate testing of manure, litter, 
process wastewater, and soil;
    (viii) Establish protocols to land apply manure, litter or process 
wastewater in accordance with site specific nutrient management 
practices that ensure appropriate agricultural utilization of the 
nutrients in the manure, litter or process wastewater; and
    (ix) Identify specific records that will be maintained to document 
the implementation and management of the minimum elements described in 
paragraphs (e)(1)(i) through (e)(1)(viii) of this section.
    (2) Recordkeeping requirements. (i) The permittee must create, 
maintain for five years, and make available to the Director, upon 
request, the following records:
    (A) All applicable records identified pursuant paragraph (e)(1)(ix) 
of this section;
    (B) In addition, all CAFOs subject to 40 CFR part 412 must comply 
with

[[Page 245]]

record keeping requirements as specified in Sec. 412.37(b) and (c) and 
Sec. 412.47(b) and (c).
    (ii) A copy of the CAFO's site-specific nutrient management plan 
must be maintained on site and made available to the Director upon 
request.
    (3) Requirements relating to transfer of manure or process 
wastewater to other persons. Prior to transferring manure, litter or 
process wastewater to other persons, Large CAFOs must provide the 
recipient of the manure, litter or process wastewater with the most 
current nutrient analysis. The analysis provided must be consistent with 
the requirements of 40 CFR part 412. Large CAFOs must retain for five 
years records of the date, recipient name and address, and approximate 
amount of manure, litter or process wastewater transferred to another 
person.
    (4) Annual reporting requirements for CAFOs. The permittee must 
submit an annual report to the Director. The annual report must include:
    (i) The number and type of animals, whether in open confinement or 
housed under roof (beef cattle, broilers, layers, swine weighing 55 
pounds or more, swine weighing less than 55 pounds, mature dairy cows, 
dairy heifers, veal calves, sheep and lambs, horses, ducks, turkeys, 
other);
    (ii) Estimated amount of total manure, litter and process wastewater 
generated by the CAFO in the previous 12 months (tons/gallons);
    (iii) Estimated amount of total manure, litter and process 
wastewater transferred to other person by the CAFO in the previous 12 
months (tons/gallons);
    (iv) Total number of acres for land application covered by the 
nutrient management plan developed in accordance with paragraph (e)(1) 
of this section;
    (v) Total number of acres under control of the CAFO that were used 
for land application of manure, litter and process wastewater in the 
previous 12 months;
    (vi) Summary of all manure, litter and process wastewater discharges 
from the production area that have occurred in the previous 12 months, 
including date, time, and approximate volume; and
    (vii) A statement indicating whether the current version of the 
CAFO's nutrient management plan was developed or approved by a certified 
nutrient management planner; and
    (viii) The actual crop(s) planted and actual yield(s) for each 
field, the actual nitrogen and phosphorus content of the manure, litter, 
and process wastewater, the results of calculations conducted in 
accordance with paragraphs (e)(5)(i)(B) and (e)(5)(ii)(D) of this 
section, and the amount of manure, litter, and process wastewater 
applied to each field during the previous 12 months; and, for any CAFO 
that implements a nutrient management plan that addresses rates of 
application in accordance with paragraph (e)(5)(ii) of this section, the 
results of any soil testing for nitrogen and phosphorus taken during the 
preceding 12 months, the data used in calculations conducted in 
accordance with paragraph (e)(5)(ii)(D) of this section, and the amount 
of any supplemental fertilizer applied during the previous 12 months.
    (5) Terms of the nutrient management plan. Any permit issued to a 
CAFO must require compliance with the terms of the CAFO's site-specific 
nutrient management plan. The terms of the nutrient management plan are 
the information, protocols, best management practices, and other 
conditions in the nutrient management plan determined by the Director to 
be necessary to meet the requirements of paragraph (e)(1) of this 
section. The terms of the nutrient management plan, with respect to 
protocols for land application of manure, litter, or process wastewater 
required by paragraph (e)(1)(viii) of this section and, as applicable, 
40 CFR 412.4(c), must include the fields available for land application; 
field-specific rates of application properly developed, as specified in 
paragraphs (e)(5)(i) through (ii) of this section, to ensure appropriate 
agricultural utilization of the nutrients in the manure, litter, or 
process wastewater; and any timing limitations identified in the 
nutrient management plan concerning land application on the fields 
available for land application. The terms must address rates of 
application using one of the following two approaches, unless

[[Page 246]]

the Director specifies that only one of these approaches may be used:
    (i) Linear approach. An approach that expresses rates of application 
as pounds of nitrogen and phosphorus, according to the following 
specifications:
    (A) The terms include maximum application rates from manure, litter, 
and process wastewater for each year of permit coverage, for each crop 
identified in the nutrient management plan, in chemical forms determined 
to be acceptable to the Director, in pounds per acre, per year, for each 
field to be used for land application, and certain factors necessary to 
determine such rates. At a minimum, the factors that are terms must 
include: The outcome of the field-specific assessment of the potential 
for nitrogen and phosphorus transport from each field; the crops to be 
planted in each field or any other uses of a field such as pasture or 
fallow fields; the realistic yield goal for each crop or use identified 
for each field; the nitrogen and phosphorus recommendations from sources 
specified by the Director for each crop or use identified for each 
field; credits for all nitrogen in the field that will be plant 
available; consideration of multi-year phosphorus application; and 
accounting for all other additions of plant available nitrogen and 
phosphorus to the field. In addition, the terms include the form and 
source of manure, litter, and process wastewater to be land-applied; the 
timing and method of land application; and the methodology by which the 
nutrient management plan accounts for the amount of nitrogen and 
phosphorus in the manure, litter, and process wastewater to be applied.
    (B) Large CAFOs that use this approach must calculate the maximum 
amount of manure, litter, and process wastewater to be land applied at 
least once each year using the results of the most recent representative 
manure, litter, and process wastewater tests for nitrogen and phosphorus 
taken within 12 months of the date of land application; or
    (ii) Narrative rate approach. An approach that expresses rates of 
application as a narrative rate of application that results in the 
amount, in tons or gallons, of manure, litter, and process wastewater to 
be land applied, according to the following specifications:
    (A) The terms include maximum amounts of nitrogen and phosphorus 
derived from all sources of nutrients, for each crop identified in the 
nutrient management plan, in chemical forms determined to be acceptable 
to the Director, in pounds per acre, for each field, and certain factors 
necessary to determine such amounts. At a minimum, the factors that are 
terms must include: the outcome of the field-specific assessment of the 
potential for nitrogen and phosphorus transport from each field; the 
crops to be planted in each field or any other uses such as pasture or 
fallow fields (including alternative crops identified in accordance with 
paragraph (e)(5)(ii)(B) of this section); the realistic yield goal for 
each crop or use identified for each field; and the nitrogen and 
phosphorus recommendations from sources specified by the Director for 
each crop or use identified for each field. In addition, the terms 
include the methodology by which the nutrient management plan accounts 
for the following factors when calculating the amounts of manure, 
litter, and process wastewater to be land applied: Results of soil tests 
conducted in accordance with protocols identified in the nutrient 
management plan, as required by paragraph (e)(1)(vii) of this section; 
credits for all nitrogen in the field that will be plant available; the 
amount of nitrogen and phosphorus in the manure, litter, and process 
wastewater to be applied; consideration of multi-year phosphorus 
application; accounting for all other additions of plant available 
nitrogen and phosphorus to the field; the form and source of manure, 
litter, and process wastewater; the timing and method of land 
application; and volatilization of nitrogen and mineralization of 
organic nitrogen.
    (B) The terms of the nutrient management plan include alternative 
crops identified in the CAFO's nutrient management plan that are not in 
the planned crop rotation. Where a CAFO includes alternative crops in 
its nutrient management plan, the crops must be listed by field, in 
addition to the crops identified in the planned crop rotation for that 
field, and the nutrient

[[Page 247]]

management plan must include realistic crop yield goals and the nitrogen 
and phosphorus recommendations from sources specified by the Director 
for each crop. Maximum amounts of nitrogen and phosphorus from all 
sources of nutrients and the amounts of manure, litter, and process 
wastewater to be applied must be determined in accordance with the 
methodology described in paragraph (e)(5)(ii)(A) of this section.
    (C) For CAFOs using this approach, the following projections must be 
included in the nutrient management plan submitted to the Director, but 
are not terms of the nutrient management plan: The CAFO's planned crop 
rotations for each field for the period of permit coverage; the 
projected amount of manure, litter, or process wastewater to be applied; 
projected credits for all nitrogen in the field that will be plant 
available; consideration of multi-year phosphorus application; 
accounting for all other additions of plant available nitrogen and 
phosphorus to the field; and the predicted form, source, and method of 
application of manure, litter, and process wastewater for each crop. 
Timing of application for each field, insofar as it concerns the 
calculation of rates of application, is not a term of the nutrient 
management plan.
    (D) CAFOs that use this approach must calculate maximum amounts of 
manure, litter, and process wastewater to be land applied at least once 
each year using the methodology required in paragraph (e)(5)(ii)(A) of 
this section before land applying manure, litter, and process wastewater 
and must rely on the following data:
    (1) A field-specific determination of soil levels of nitrogen and 
phosphorus, including, for nitrogen, a concurrent determination of 
nitrogen that will be plant available consistent with the methodology 
required by paragraph (e)(5)(ii)(A) of this section, and for phosphorus, 
the results of the most recent soil test conducted in accordance with 
soil testing requirements approved by the Director; and
    (2) The results of most recent representative manure, litter, and 
process wastewater tests for nitrogen and phosphorus taken within 12 
months of the date of land application, in order to determine the amount 
of nitrogen and phosphorus in the manure, litter, and process wastewater 
to be applied.
    (6) Changes to a nutrient management plan. Any permit issued to a 
CAFO must require the following procedures to apply when a CAFO owner or 
operator makes changes to the CAFO's nutrient management plan previously 
submitted to the Director:
    (i) The CAFO owner or operator must provide the Director with the 
most current version of the CAFO's nutrient management plan and identify 
changes from the previous version, except that the results of 
calculations made in accordance with the requirements of paragraphs 
(e)(5)(i)(B) and (e)(5)(ii)(D) of this section are not subject to the 
requirements of paragraph (e)(6) of this section.
    (ii) The Director must review the revised nutrient management plan 
to ensure that it meets the requirements of this section and applicable 
effluent limitations and standards, including those specified in 40 CFR 
part 412, and must determine whether the changes to the nutrient 
management plan necessitate revision to the terms of the nutrient 
management plan incorporated into the permit issued to the CAFO. If 
revision to the terms of the nutrient management plan is not necessary, 
the Director must notify the CAFO owner or operator and upon such 
notification the CAFO may implement the revised nutrient management 
plan. If revision to the terms of the nutrient management plan is 
necessary, the Director must determine whether such changes are 
substantial changes as described in paragraph (e)(6)(iii) of this 
section.
    (A) If the Director determines that the changes to the terms of the 
nutrient management plan are not substantial, the Director must make the 
revised nutrient management plan publicly available and include it in 
the permit record, revise the terms of the nutrient management plan 
incorporated into the permit, and notify the owner or operator and 
inform the public of any changes to the terms of the nutrient management 
plan that are incorporated into the permit.

[[Page 248]]

    (B) If the Director determines that the changes to the terms of the 
nutrient management plan are substantial, the Director must notify the 
public and make the proposed changes and the information submitted by 
the CAFO owner or operator available for public review and comment. The 
process for public comments, hearing requests, and the hearing process 
if a hearing is held must follow the procedures applicable to draft 
permits set forth in 40 CFR 124.11 through 124.13. The Director may 
establish, either by regulation or in the CAFO's permit, an appropriate 
period of time for the public to comment and request a hearing on the 
proposed changes that differs from the time period specified in 40 CFR 
124.10. The Director must respond to all significant comments received 
during the comment period as provided in 40 CFR 124.17, and require the 
CAFO owner or operator to further revise the nutrient management plan if 
necessary, in order to approve the revision to the terms of the nutrient 
management plan incorporated into the CAFO's permit. Once the Director 
incorporates the revised terms of the nutrient management plan into the 
permit, the Director must notify the owner or operator and inform the 
public of the final decision concerning revisions to the terms and 
conditions of the permit.
    (iii) Substantial changes to the terms of a nutrient management plan 
incorporated as terms and conditions of a permit include, but are not 
limited to:
    (A) Addition of new land application areas not previously included 
in the CAFO's nutrient management plan. Except that if the land 
application area that is being added to the nutrient management plan is 
covered by terms of a nutrient management plan incorporated into an 
existing NPDES permit in accordance with the requirements of paragraph 
(e)(5) of this section, and the CAFO owner or operator applies manure, 
litter, or process wastewater on the newly added land application area 
in accordance with the existing field-specific permit terms applicable 
to the newly added land application area, such addition of new land 
would be a change to the new CAFO owner or operator's nutrient 
management plan but not a substantial change for purposes of this 
section;
    (B) Any changes to the field-specific maximum annual rates for land 
application, as set forth in paragraphs (e)(5)(i) of this section, and 
to the maximum amounts of nitrogen and phosphorus derived from all 
sources for each crop, as set forth in paragraph (e)(5)(ii) of this 
section;
    (C) Addition of any crop or other uses not included in the terms of 
the CAFO's nutrient management plan and corresponding field-specific 
rates of application expressed in accordance with paragraph (e)(5) of 
this section; and
    (D) Changes to site-specific components of the CAFO's nutrient 
management plan, where such changes are likely to increase the risk of 
nitrogen and phosphorus transport to waters of the U.S.
    (iv) For EPA-issued permits only. Upon incorporation of the revised 
terms of the nutrient management plan into the permit, 40 CFR 124.19 
specifies procedures for appeal of the permit decision. In addition to 
the procedures specified at 40 CFR 124.19, a person must have submitted 
comments or participated in the public hearing in order to appeal the 
permit decision.

[48 FR 14153, Apr. 1, 1983, as amended at 49 FR 38049, Sept. 26, 1984; 
50 FR 4514, Jan. 31, 1985; 55 FR 48073, Nov. 16, 1990; 57 FR 60448, Dec. 
18, 1992; 68 FR 7268, Feb. 12, 2003; 71 FR 6984, Feb. 10, 2006; 72 FR 
40250, July 24, 2007; 73 FR 70483, Nov. 20, 2008]



Sec. 122.43  Establishing permit conditions (applicable to State programs, see 

Sec. 123.25).

    (a) In addition to conditions required in all permits (Sec. Sec. 
122.41 and 122.42), the Director shall establish conditions, as required 
on a case-by-case basis, to provide for and assure compliance with all 
applicable requirements of CWA and regulations. These shall include 
conditions under Sec. Sec. 122.46 (duration of permits), 122.47(a) 
(schedules of compliance), 122.48 (monitoring), and for EPA permits only 
122.47(b) (alternates schedule of compliance) and 122.49 (considerations 
under Federal law).
    (b)(1) For a State issued permit, an applicable requirement is a 
State statutory or regulatory requirement which

[[Page 249]]

takes effect prior to final administrative disposition of a permit. For 
a permit issued by EPA, an applicable requirement is a statutory or 
regulatory requirement (including any interim final regulation) which 
takes effect prior to the issuance of the permit. Section 124.14 
(reopening of comment period) provides a means for reopening EPA permit 
proceedings at the discretion of the Director where new requirements 
become effective during the permitting process and are of sufficient 
magnitude to make additional proceedings desirable. For State and EPA 
administered programs, an applicable requirement is also any requirement 
which takes effect prior to the modification or revocation and 
reissuance of a permit, to the extent allowed in Sec. 122.62.
    (2) New or reissued permits, and to the extent allowed under Sec. 
122.62 modified or revoked and reissued permits, shall incorporate each 
of the applicable requirements referenced in Sec. Sec. 122.44 and 
122.45.
    (c) Incorporation. All permit conditions shall be incorporated 
either expressly or by reference. If incorporated by reference, a 
specific citation to the applicable regulations or requirements must be 
given in the permit.

[48 FR 14153, Apr. 1, 1983, as amended at 65 FR 30908, May 15, 2000]



Sec. 122.44  Establishing limitations, standards, and other permit conditions 

(applicable to State NPDES programs, see Sec. 123.25).

    In addition to the conditions established under Sec. 122.43(a), 
each NPDES permit shall include conditions meeting the following 
requirements when applicable.
    (a)(1) Technology-based effluent limitations and standards based on: 
effluent limitations and standards promulgated under section 301 of the 
CWA, or new source performance standards promulgated under section 306 
of CWA, on case-by-case effluent limitations determined under section 
402(a)(1) of CWA, or a combination of the three, in accordance with 
Sec. 125.3 of this chapter. For new sources or new dischargers, these 
technology based limitations and standards are subject to the provisions 
of Sec. 122.29(d) (protection period).
    (2) Monitoring waivers for certain guideline-listed pollutants. (i) 
The Director may authorize a discharger subject to technology-based 
effluent limitations guidelines and standards in an NPDES permit to 
forego sampling of a pollutant found at 40 CFR Subchapter N of this 
chapter if the discharger has demonstrated through sampling and other 
technical factors that the pollutant is not present in the discharge or 
is present only at background levels from intake water and without any 
increase in the pollutant due to activities of the discharger.
    (ii) This waiver is good only for the term of the permit and is not 
available during the term of the first permit issued to a discharger.
    (iii) Any request for this waiver must be submitted when applying 
for a reissued permit or modification of a reissued permit. The request 
must demonstrate through sampling or other technical information, 
including information generated during an earlier permit term that the 
pollutant is not present in the discharge or is present only at 
background levels from intake water and without any increase in the 
pollutant due to activities of the discharger.
    (iv) Any grant of the monitoring waiver must be included in the 
permit as an express permit condition and the reasons supporting the 
grant must be documented in the permit's fact sheet or statement of 
basis.
    (v) This provision does not supersede certification processes and 
requirements already established in existing effluent limitations 
guidelines and standards.
    (b)(1) Other effluent limitations and standards under sections 301, 
302, 303, 307, 318 and 405 of CWA. If any applicable toxic effluent 
standard or prohibition (including any schedule of compliance specified 
in such effluent standard or prohibition) is promulgated under section 
307(a) of CWA for a toxic pollutant and that standard or prohibition is 
more stringent than any limitation on the pollutant in the permit, the 
Director shall institute proceedings under these regulations to modify 
or revoke and reissue the permit to conform to the toxic effluent 
standard or prohibition. See also Sec. 122.41(a).

[[Page 250]]

    (2) Standards for sewage sludge use or disposal under section 405(d) 
of the CWA unless those standards have been included in a permit issued 
under the appropriate provisions of subtitle C of the Solid Waste 
Disposal Act, Part C of Safe Drinking Water Act, the Marine Protection, 
Research, and Sanctuaries Act of 1972, or the Clean Air Act, or under 
State permit programs approved by the Administrator. When there are no 
applicable standards for sewage sludge use or disposal, the permit may 
include requirements developed on a case-by-case basis to protect public 
health and the environment from any adverse effects which may occur from 
toxic pollutants in sewage sludge. If any applicable standard for sewage 
sludge use or disposal is promulgated under section 405(d) of the CWA 
and that standard is more stringent than any limitation on the pollutant 
or practice in the permit, the Director may initiate proceedings under 
these regulations to modify or revoke and reissue the permit to conform 
to the standard for sewage sludge use or disposal.
    (3) Requirements applicable to cooling water intake structures under 
section 316(b) of the CWA, in accordance with part 125, subparts I, J, 
and N of this chapter.
    (c) Reopener clause: For any permit issued to a treatment works 
treating domestic sewage (including ``sludge-only facilities''), the 
Director shall include a reopener clause to incorporate any applicable 
standard for sewage sludge use or disposal promulgated under section 
405(d) of the CWA. The Director may promptly modify or revoke and 
reissue any permit containing the reopener clause required by this 
paragraph if the standard for sewage sludge use or disposal is more 
stringent than any requirements for sludge use or disposal in the 
permit, or controls a pollutant or practice not limited in the permit.
    (d) Water quality standards and State requirements: any requirements 
in addition to or more stringent than promulgated effluent limitations 
guidelines or standards under sections 301, 304, 306, 307, 318 and 405 
of CWA necessary to:
    (1) Achieve water quality standards established under section 303 of 
the CWA, including State narrative criteria for water quality.
    (i) Limitations must control all pollutants or pollutant parameters 
(either conventional, nonconventional, or toxic pollutants) which the 
Director determines are or may be discharged at a level which will 
cause, have the reasonable potential to cause, or contribute to an 
excursion above any State water quality standard, including State 
narrative criteria for water quality.
    (ii) When determining whether a discharge causes, has the reasonable 
potential to cause, or contributes to an in-stream excursion above a 
narrative or numeric criteria within a State water quality standard, the 
permitting authority shall use procedures which account for existing 
controls on point and nonpoint sources of pollution, the variability of 
the pollutant or pollutant parameter in the effluent, the sensitivity of 
the species to toxicity testing (when evaluating whole effluent 
toxicity), and where appropriate, the dilution of the effluent in the 
receiving water.
    (iii) When the permitting authority determines, using the procedures 
in paragraph (d)(1)(ii) of this section, that a discharge causes, has 
the reasonable potential to cause, or contributes to an in-stream 
excursion above the allowable ambient concentration of a State numeric 
criteria within a State water quality standard for an individual 
pollutant, the permit must contain effluent limits for that pollutant.
    (iv) When the permitting authority determines, using the procedures 
in paragraph (d)(1)(ii) of this section, that a discharge causes, has 
the reasonable potential to cause, or contributes to an in-stream 
excursion above the numeric criterion for whole effluent toxicity, the 
permit must contain effluent limits for whole effluent toxicity.
    (v) Except as provided in this subparagraph, when the permitting 
authority determines, using the procedures in paragraph (d)(1)(ii) of 
this section, toxicity testing data, or other information, that a 
discharge causes, has the reasonable potential to cause, or contributes 
to an in-stream excursion above a narrative criterion within an

[[Page 251]]

applicable State water quality standard, the permit must contain 
effluent limits for whole effluent toxicity. Limits on whole effluent 
toxicity are not necessary where the permitting authority demonstrates 
in the fact sheet or statement of basis of the NPDES permit, using the 
procedures in paragraph (d)(1)(ii) of this section, that chemical-
specific limits for the effluent are sufficient to attain and maintain 
applicable numeric and narrative State water quality standards.
    (vi) Where a State has not established a water quality criterion for 
a specific chemical pollutant that is present in an effluent at a 
concentration that causes, has the reasonable potential to cause, or 
contributes to an excursion above a narrative criterion within an 
applicable State water quality standard, the permitting authority must 
establish effluent limits using one or more of the following options:
    (A) Establish effluent limits using a calculated numeric water 
quality criterion for the pollutant which the permitting authority 
demonstrates will attain and maintain applicable narrative water quality 
criteria and will fully protect the designated use. Such a criterion may 
be derived using a proposed State criterion, or an explicit State policy 
or regulation interpreting its narrative water quality criterion, 
supplemented with other relevant information which may include: EPA's 
Water Quality Standards Handbook, October 1983, risk assessment data, 
exposure data, information about the pollutant from the Food and Drug 
Administration, and current EPA criteria documents; or
    (B) Establish effluent limits on a case-by-case basis, using EPA's 
water quality criteria, published under section 304(a) of the CWA, 
supplemented where necessary by other relevant information; or
    (C) Establish effluent limitations on an indicator parameter for the 
pollutant of concern, provided:
    (1) The permit identifies which pollutants are intended to be 
controlled by the use of the effluent limitation;
    (2) The fact sheet required by Sec. 124.56 sets forth the basis for 
the limit, including a finding that compliance with the effluent limit 
on the indicator parameter will result in controls on the pollutant of 
concern which are sufficient to attain and maintain applicable water 
quality standards;
    (3) The permit requires all effluent and ambient monitoring 
necessary to show that during the term of the permit the limit on the 
indicator parameter continues to attain and maintain applicable water 
quality standards; and
    (4) The permit contains a reopener clause allowing the permitting 
authority to modify or revoke and reissue the permit if the limits on 
the indicator parameter no longer attain and maintain applicable water 
quality standards.
    (vii) When developing water quality-based effluent limits under this 
paragraph the permitting authority shall ensure that:
    (A) The level of water quality to be achieved by limits on point 
sources established under this paragraph is derived from, and complies 
with all applicable water quality standards; and
    (B) Effluent limits developed to protect a narrative water quality 
criterion, a numeric water quality criterion, or both, are consistent 
with the assumptions and requirements of any available wasteload 
allocation for the discharge prepared by the State and approved by EPA 
pursuant to 40 CFR 130.7.
    (2) Attain or maintain a specified water quality through water 
quality related effluent limits established under section 302 of CWA;
    (3) Conform to the conditions to a State certification under section 
401 of the CWA that meets the requirements of Sec. 124.53 when EPA is 
the permitting authority. If a State certification is stayed by a court 
of competent jurisdiction or an appropriate State board or agency, EPA 
shall notify the State that the Agency will deem certification waived 
unless a finally effective State certification is received within sixty 
days from the date of the notice. If the State does not forward a 
finally effective certification within the sixty day period, EPA shall 
include conditions in the permit that may be necessary to meet EPA's 
obligation under section 301(b)(1)(C) of the CWA;
    (4) Conform to applicable water quality requirements under section 
401(a)(2)

[[Page 252]]

of CWA when the discharge affects a State other than the certifying 
State;
    (5) Incorporate any more stringent limitations, treatment standards, 
or schedule of compliance requirements established under Federal or 
State law or regulations in accordance with section 301(b)(1)(C) of CWA;
    (6) Ensure consistency with the requirements of a Water Quality 
Management plan approved by EPA under section 208(b) of CWA;
    (7) Incorporate section 403(c) criteria under part 125, subpart M, 
for ocean discharges;
    (8) Incorporate alternative effluent limitations or standards where 
warranted by ``fundamentally different factors,'' under 40 CFR part 125, 
subpart D;
    (9) Incorporate any other appropriate requirements, conditions, or 
limitations (other than effluent limitations) into a new source permit 
to the extent allowed by the National Environmental Policy Act, 42 
U.S.C. 4321 et seq. and section 511 of the CWA, when EPA is the permit 
issuing authority. (See Sec. 122.29(c)).
    (e) Technology-based controls for toxic pollutants. Limitations 
established under paragraphs (a), (b), or (d) of this section, to 
control pollutants meeting the criteria listed in paragraph (e)(1) of 
this section. Limitations will be established in accordance with 
paragraph (e)(2) of this section. An explanation of the development of 
these limitations shall be included in the fact sheet under Sec. 
124.56(b)(1)(i).
    (1) Limitations must control all toxic pollutants which the Director 
determines (based on information reported in a permit application under 
Sec. 122.21(g)(7) or in a notification under Sec. 122.42(a)(1) or on 
other information) are or may be discharged at a level greater than the 
level which can be achieved by the technology-based treatment 
requirements appropriate to the permittee under Sec. 125.3(c) of this 
chapter; or
    (2) The requirement that the limitations control the pollutants 
meeting the criteria of paragraph (e)(1) of this section will be 
satisfied by:
    (i) Limitations on those pollutants; or
    (ii) Limitations on other pollutants which, in the judgment of the 
Director, will provide treatment of the pollutants under paragraph 
(e)(1) of this section to the levels required by Sec. 125.3(c).
    (f) Notification level. A ``notification level'' which exceeds the 
notification level of Sec. 122.42(a)(1)(i), (ii) or (iii), upon a 
petition from the permittee or on the Director's initiative. This new 
notification level may not exceed the level which can be achieved by the 
technology-based treatment requirements appropriate to the permittee 
under Sec. 125.3(c)
    (g) Twenty-four hour reporting. Pollutants for which the permittee 
must report violations of maximum daily discharge limitations under 
Sec. 122.41(1)(6)(ii)(C) (24-hour reporting) shall be listed in the 
permit. This list shall include any toxic pollutant or hazardous 
substance, or any pollutant specifically identified as the method to 
control a toxic pollutant or hazardous substance.
    (h) Durations for permits, as set forth in Sec. 122.46.
    (i) Monitoring requirements. In addition to Sec. 122.48, the 
following monitoring requirements:
    (1) To assure compliance with permit limitations, requirements to 
monitor:
    (i) The mass (or other measurement specified in the permit) for each 
pollutant limited in the permit;
    (ii) The volume of effluent discharged from each outfall;
    (iii) Other measurements as appropriate including pollutants in 
internal waste streams under Sec. 122.45(i); pollutants in intake water 
for net limitations under Sec. 122.45(f); frequency, rate of discharge, 
etc., for noncontinuous discharges under Sec. 122.45(e); pollutants 
subject to notification requirements under Sec. 122.42(a); and 
pollutants in sewage sludge or other monitoring as specified in 40 CFR 
part 503; or as determined to be necessary on a case-by-case basis 
pursuant to section 405(d)(4) of the CWA.
    (iv) According to test procedures approved under 40 CFR Part 136 for 
the analyses of pollutants or another method is required under 40 CFR 
subchapters N or O. In the case of pollutants for which there are no 
approved

[[Page 253]]

methods under 40 CFR Part 136 or otherwise required under 40 CFR 
subchapters N or O, monitoring must be conducted according to a test 
procedure specified in the permit for such pollutants.
    (2) Except as provided in paragraphs (i)(4) and (i)(5) of this 
section, requirements to report monitoring results shall be established 
on a case-by-case basis with a frequency dependent on the nature and 
effect of the discharge, but in no case less than once a year. For 
sewage sludge use or disposal practices, requirements to monitor and 
report results shall be established on a case-by-case basis with a 
frequency dependent on the nature and effect of the sewage sludge use or 
disposal practice; minimally this shall be as specified in 40 CFR part 
503 (where applicable), but in no case less than once a year.
    (3) Requirements to report monitoring results for storm water 
discharges associated with industrial activity which are subject to an 
effluent limitation guideline shall be established on a case-by-case 
basis with a frequency dependent on the nature and effect of the 
discharge, but in no case less than once a year.
    (4) Requirements to report monitoring results for storm water 
discharges associated with industrial activity (other than those 
addressed in paragraph (i)(3) of this section) shall be established on a 
case-by-case basis with a frequency dependent on the nature and effect 
of the discharge. At a minimum, a permit for such a discharge must 
require:
    (i) The discharger to conduct an annual inspection of the facility 
site to identify areas contributing to a storm water discharge 
associated with industrial activity and evaluate whether measures to 
reduce pollutant loadings identified in a storm water pollution 
prevention plan are adequate and properly implemented in accordance with 
the terms of the permit or whether additional control measures are 
needed;
    (ii) The discharger to maintain for a period of three years a record 
summarizing the results of the inspection and a certification that the 
facility is in compliance with the plan and the permit, and identifying 
any incidents of non-compliance;
    (iii) Such report and certification be signed in accordance with 
Sec. 122.22; and
    (iv) Permits for storm water discharges associated with industrial 
activity from inactive mining operations may, where annual inspections 
are impracticable, require certification once every three years by a 
Registered Professional Engineer that the facility is in compliance with 
the permit, or alternative requirements.
    (5) Permits which do not require the submittal of monitoring result 
reports at least annually shall require that the permittee report all 
instances of noncompliance not reported under Sec. 122.41(l) (1), (4), 
(5), and (6) at least annually.
    (j) Pretreatment program for POTWs. Requirements for POTWs to:
    (1) Identify, in terms of character and volume of pollutants, any 
Significant Industrial Users discharging into the POTW subject to 
Pretreatment Standards under section 307(b) of CWA and 40 CFR part 403.
    (2)(i) Submit a local program when required by and in accordance 
with 40 CFR part 403 to assure compliance with pretreatment standards to 
the extent applicable under section 307(b). The local program shall be 
incorporated into the permit as described in 40 CFR part 403. The 
program must require all indirect dischargers to the POTW to comply with 
the reporting requirements of 40 CFR part 403.
    (ii) Provide a written technical evaluation of the need to revise 
local limits under 40 CFR 403.5(c)(1), following permit issuance or 
reissuance.
    (3) For POTWs which are ``sludge-only facilities,'' a requirement to 
develop a pretreatment program under 40 CFR part 403 when the Director 
determines that a pretreatment program is necessary to assure compliance 
with Section 405(d) of the CWA.
    (k) Best management practices (BMPs) to control or abate the 
discharge of pollutants when:
    (1) Authorized under section 304(e) of the CWA for the control of 
toxic pollutants and hazardous substances from ancillary industrial 
activities;
    (2) Authorized under section 402(p) of the CWA for the control of 
storm water discharges;

[[Page 254]]

    (3) Numeric effluent limitations are infeasible; or
    (4) The practices are reasonably necessary to achieve effluent 
limitations and standards or to carry out the purposes and intent of the 
CWA.
    Note to paragraph (k)(4): Additional technical information on BMPs 
and the elements of BMPs is contained in the following documents: 
Guidance Manual for Developing Best Management Practices (BMPs), October 
1993, EPA No. 833/B-93-004, NTIS No. PB 94-178324, ERIC No. W498); Storm 
Water Management for Construction Activities: Developing Pollution 
Prevention Plans and Best Management Practices, September 1992, EPA No. 
832/R-92-005, NTIS No. PB 92-235951, ERIC No. N482); Storm Water 
Management for Construction Activities, Developing Pollution Prevention 
Plans and Best Management Practices: Summary Guidance, EPA No. 833/R-92-
001, NTIS No. PB 93-223550; ERIC No. W139; Storm Water Management for 
Industrial Activities, Developing Pollution Prevention Plans and Best 
Management Practices, September 1992; EPA 832/R-92-006, NTIS No. PB 92-
235969, ERIC No. N477; Storm Water Management for Industrial Activities, 
Developing Pollution Prevention Plans and Best Management Practices: 
Summary Guidance, EPA 833/R-92-002, NTIS No. PB 94-133782; ERIC No. 
W492. Copies of those documents (or directions on how to obtain them) 
can be obtained by contacting either the Office of Water Resource Center 
(using the EPA document number as a reference) at (202) 260-7786; or the 
Educational Resources Information Center (ERIC) (using the ERIC number 
as a reference) at (800) 276-0462. Updates of these documents or 
additional BMP documents may also be available. A list of EPA BMP 
guidance documents is available on the OWM Home Page at http://
www.epa.gov/owm. In addition, States may have BMP guidance documents.
    These EPA guidance documents are listed here only for informational 
purposes; they are not binding and EPA does not intend that these 
guidance documents have any mandatory, regulatory effect by virtue of 
their listing in this note.
    (l) Reissued permits. (1) Except as provided in paragraph (l)(2) of 
this section when a permit is renewed or reissued, interim effluent 
limitations, standards or conditions must be at least as stringent as 
the final effluent limitations, standards, or conditions in the previous 
permit (unless the circumstances on which the previous permit was based 
have materially and substantially changed since the time the permit was 
issued and would constitute cause for permit modification or revocation 
and reissuance under Sec. 122.62.)
    (2) In the case of effluent limitations established on the basis of 
Section 402(a)(1)(B) of the CWA, a permit may not be renewed, reissued, 
or modified on the basis of effluent guidelines promulgated under 
section 304(b) subsequent to the original issuance of such permit, to 
contain effluent limitations which are less stringent than the 
comparable effluent limitations in the previous permit.
    (i) Exceptions--A permit with respect to which paragraph (l)(2) of 
this section applies may be renewed, reissued, or modified to contain a 
less stringent effluent limitation applicable to a pollutant, if--
    (A) Material and substantial alterations or additions to the 
permitted facility occurred after permit issuance which justify the 
application of a less stringent effluent limitation;
    (B)(1) Information is available which was not available at the time 
of permit issuance (other than revised regulations, guidance, or test 
methods) and which would have justified the application of a less 
stringent effluent limitation at the time of permit issuance; or
    (2) The Administrator determines that technical mistakes or mistaken 
interpretations of law were made in issuing the permit under section 
402(a)(1)(b);
    (C) A less stringent effluent limitation is necessary because of 
events over which the permittee has no control and for which there is no 
reasonably available remedy;
    (D) The permittee has received a permit modification under section 
301(c), 301(g), 301(h), 301(i), 301(k), 301(n), or 316(a); or
    (E) The permittee has installed the treatment facilities required to 
meet the effluent limitations in the previous permit and has properly 
operated and maintained the facilities but has nevertheless been unable 
to achieve the previous effluent limitations, in which case the 
limitations in the reviewed, reissued, or modified permit may reflect 
the level of pollutant control actually achieved (but shall not be less 
stringent than required by effluent

[[Page 255]]

guidelines in effect at the time of permit renewal, reissuance, or 
modification).
    (ii) Limitations. In no event may a permit with respect to which 
paragraph (l)(2) of this section applies be renewed, reissued, or 
modified to contain an effluent limitation which is less stringent than 
required by effluent guidelines in effect at the time the permit is 
renewed, reissued, or modified. In no event may such a permit to 
discharge into waters be renewed, issued, or modified to contain a less 
stringent effluent limitation if the implementation of such limitation 
would result in a violation of a water quality standard under section 
303 applicable to such waters.
    (m) Privately owned treatment works. For a privately owned treatment 
works, any conditions expressly applicable to any user, as a limited co-
permittee, that may be necessary in the permit issued to the treatment 
works to ensure compliance with applicable requirements under this part. 
Alternatively, the Director may issue separate permits to the treatment 
works and to its users, or may require a separate permit application 
from any user. The Director's decision to issue a permit with no 
conditions applicable to any user, to impose conditions on one or more 
users, to issue separate permits, or to require separate applications, 
and the basis for that decision, shall be stated in the fact sheet for 
the draft permit for the treatment works.
    (n) Grants. Any conditions imposed in grants made by the 
Administrator to POTWs under sections 201 and 204 of CWA which are 
reasonably necessary for the achievement of effluent limitations under 
section 301 of CWA.
    (o) Sewage sludge. Requirements under section 405 of CWA governing 
the disposal of sewage sludge from publicly owned treatment works or any 
other treatment works treating domestic sewage for any use for which 
regulations have been established, in accordance with any applicable 
regulations.
    (p) Coast Guard. When a permit is issued to a facility that may 
operate at certain times as a means of transportation over water, a 
condition that the discharge shall comply with any applicable 
regulations promulgated by the Secretary of the department in which the 
Coast Guard is operating, that establish specifications for safe 
transportation, handling, carriage, and storage of pollutants.
    (q) Navigation. Any conditions that the Secretary of the Army 
considers necessary to ensure that navigation and anchorage will not be 
substantially impaired, in accordance with Sec. 124.59 of this chapter.
    (r) Great Lakes. When a permit is issued to a facility that 
discharges into the Great Lakes System (as defined in 40 CFR 132.2), 
conditions promulgated by the State, Tribe, or EPA pursuant to 40 CFR 
part 132.
    (s) Qualifying State, Tribal, or local programs. (1) For storm water 
discharges associated with small construction activity identified in 
Sec. 122.26(b)(15), the Director may include permit conditions that 
incorporate qualifying State, Tribal, or local erosion and sediment 
control program requirements by reference. Where a qualifying State, 
Tribal, or local program does not include one or more of the elements in 
this paragraph (s)(1), then the Director must include those elements as 
conditions in the permit. A qualifying State, Tribal, or local erosion 
and sediment control program is one that includes:
    (i) Requirements for construction site operators to implement 
appropriate erosion and sediment control best management practices;
    (ii) Requirements for construction site operators to control waste 
such as discarded building materials, concrete truck washout, chemicals, 
litter, and sanitary waste at the construction site that may cause 
adverse impacts to water quality;
    (iii) Requirements for construction site operators to develop and 
implement a storm water pollution prevention plan. (A storm water 
pollution prevention plan includes site descriptions, descriptions of 
appropriate control measures, copies of approved State, Tribal or local 
requirements, maintenance procedures, inspection procedures, and 
identification of non-storm water discharges); and

[[Page 256]]

    (iv) Requirements to submit a site plan for review that incorporates 
consideration of potential water quality impacts.
    (2) For storm water discharges from construction activity identified 
in Sec. 122.26(b)(14)(x), the Director may include permit conditions 
that incorporate qualifying State, Tribal, or local erosion and sediment 
control program requirements by reference. A qualifying State, Tribal or 
local erosion and sediment control program is one that includes the 
elements listed in paragraph (s)(1) of this section and any additional 
requirements necessary to achieve the applicable technology-based 
standards of ``best available technology'' and ``best conventional 
technology'' based on the best professional judgment of the permit 
writer.

[48 FR 14153, Apr. 1, 1983, as amended at 49 FR 31842, Aug. 8, 1984; 49 
FR 38049, Sept. 26, 1984; 50 FR 6940, Feb. 19, 1985; 50 FR 7912, Feb. 
27, 1985; 54 FR 256, Jan. 4, 1989; 54 FR 18783, May 2, 1989; 54 FR 
23895, June 2, 1989; 57 FR 11413, Apr. 2, 1992; 57 FR 33049, July 24, 
1992; 60 FR 15386, Mar. 23, 1995; 64 FR 42469, Aug. 4, 1999; 64 FR 
68847, Dec. 8, 1999; 65 FR 30908, May 15, 2000; 66 FR 65337, Dec. 18, 
2001; 69 FR 41682, July 9, 2004; 70 FR 60191, Oct. 14, 2005; 71 FR 
35040, June 16, 2006; 72 FR 11212, Mar. 12, 2007]



Sec. 122.45  Calculating NPDES permit conditions (applicable to State NPDES 

programs, see Sec. 123.25).

    (a) Outfalls and discharge points. All permit effluent limitations, 
standards and prohibitions shall be established for each outfall or 
discharge point of the permitted facility, except as otherwise provided 
under Sec. 122.44(k) (BMPs where limitations are infeasible) and 
paragraph (i) of this section (limitations on internal waste streams).
    (b) Production-based limitations. (1) In the case of POTWs, permit 
effluent limitations, standards, or prohibitions shall be calculated 
based on design flow.
    (2)(i) Except in the case of POTWs or as provided in paragraph 
(b)(2)(ii) of this section, calculation of any permit limitations, 
standards, or prohibitions which are based on production (or other 
measure of operation) shall be based not upon the designed production 
capacity but rather upon a reasonable measure of actual production of 
the facility. For new sources or new dischargers, actual production 
shall be estimated using projected production. The time period of the 
measure of production shall correspond to the time period of the 
calculated permit limitations; for example, monthly production shall be 
used to calculate average monthly discharge limitations.
    (ii)(A)(1) The Director may include a condition establishing 
alternate permit limitations, standards, or prohibitions based upon 
anticipated increased (not to exceed maximum production capability) or 
decreased production levels.
    (2) For the automotive manufacturing industry only, the Regional 
Administrator shall, and the State Director may establish a condition 
under paragraph (b)(2)(ii)(A)(1) of this section if the applicant 
satisfactorily demonstrates to the Director at the time the application 
is submitted that its actual production, as indicated in paragraph 
(b)(2)(i) of this section, is substantially below maximum production 
capability and that there is a reasonable potential for an increase 
above actual production during the duration of the permit.
    (B) If the Director establishes permit conditions under paragraph 
(b)(2)(ii)(A) of this section:
    (1) The permit shall require the permittee to notify the Director at 
least two business days prior to a month in which the permittee expects 
to operate at a level higher than the lowest production level identified 
in the permit. The notice shall specify the anticipated level and the 
period during which the permittee expects to operate at the alternate 
level. If the notice covers more than one month, the notice shall 
specify the reasons for the anticipated production level increase. New 
notice of discharge at alternate levels is required to cover a period or 
production level not covered by prior notice or, if during two 
consecutive months otherwise covered by a notice, the production level 
at the permitted facility does not in fact meet the higher level 
designated in the notice.
    (2) The permittee shall comply with the limitations, standards, or 
prohibitions that correspond to the lowest level of production specified 
in the permit, unless the permittee has notified

[[Page 257]]

the Director under paragraph (b)(2)(ii)(B)(1) of this section, in which 
case the permittee shall comply with the lower of the actual level of 
production during each month or the level specified in the notice.
    (3) The permittee shall submit with the DMR the level of production 
that actually occurred during each month and the limitations, standards, 
or prohibitions applicable to that level of production.
    (c) Metals. All permit effluent limitations, standards, or 
prohibitions for a metal shall be expressed in terms of ``total 
recoverable metal'' as defined in 40 CFR part 136 unless:
    (1) An applicable effluent standard or limitation has been 
promulgated under the CWA and specifies the limitation for the metal in 
the dissolved or valent or total form; or
    (2) In establishing permit limitations on a case-by-case basis under 
Sec. 125.3, it is necessary to express the limitation on the metal in 
the dissolved or valent or total form to carry out the provisions of the 
CWA; or
    (3) All approved analytical methods for the metal inherently measure 
only its dissolved form (e.g., hexavalent chromium).
    (d) Continuous discharges. For continuous discharges all permit 
effluent limitations, standards, and prohibitions, including those 
necessary to achieve water quality standards, shall unless impracticable 
be stated as:
    (1) Maximum daily and average monthly discharge limitations for all 
dischargers other than publicly owned treatment works; and
    (2) Average weekly and average monthly discharge limitations for 
POTWs.
    (e) Non-continuous discharges. Discharges which are not continuous, 
as defined in Sec. 122.2, shall be particularly described and limited, 
considering the following factors, as appropriate:
    (1) Frequency (for example, a batch discharge shall not occur more 
than once every 3 weeks);
    (2) Total mass (for example, not to exceed 100 kilograms of zinc and 
200 kilograms of chromium per batch discharge);
    (3) Maximum rate of discharge of pollutants during the discharge 
(for example, not to exceed 2 kilograms of zinc per minute); and
    (4) Prohibition or limitation of specified pollutants by mass, 
concentration, or other appropriate measure (for example, shall not 
contain at any time more than 0.1 mg/1 zinc or more than 250 grams (\1/
4\ kilogram) of zinc in any discharge).
    (f) Mass limitations. (1) All pollutants limited in permits shall 
have limitations, standards or prohibitions expressed in terms of mass 
except:
    (i) For pH, temperature, radiation, or other pollutants which cannot 
appropriately be expressed by mass;
    (ii) When applicable standards and limitations are expressed in 
terms of other units of measurement; or
    (iii) If in establishing permit limitations on a case-by-case basis 
under Sec. 125.3, limitations expressed in terms of mass are infeasible 
because the mass of the pollutant discharged cannot be related to a 
measure of operation (for example, discharges of TSS from certain mining 
operations), and permit conditions ensure that dilution will not be used 
as a substitute for treatment.
    (2) Pollutants limited in terms of mass additionally may be limited 
in terms of other units of measurement, and the permit shall require the 
permittee to comply with both limitations.
    (g) Pollutants in intake water. (1) Upon request of the discharger, 
technology-based effluent limitations or standards shall be adjusted to 
reflect credit for pollutants in the discharger's intake water if:
    (i) The applicable effluent limitations and standards contained in 
40 CFR subchapter N specifically provide that they shall be applied on a 
net basis; or
    (ii) The discharger demonstrates that the control system it proposes 
or uses to meet applicable technology-based limitations and standards 
would, if properly installed and operated, meet the limitations and 
standards in the absence of pollutants in the intake waters.
    (2) Credit for generic pollutants such as biochemical oxygen demand 
(BOD) or total suspended solids (TSS) should not be granted unless the 
permittee demonstrates that the constituents of

[[Page 258]]

the generic measure in the effluent are substantially similar to the 
constituents of the generic measure in the intake water or unless 
appropriate additional limits are placed on process water pollutants 
either at the outfall or elsewhere.
    (3) Credit shall be granted only to the extent necessary to meet the 
applicable limitation or standard, up to a maximum value equal to the 
influent value. Additional monitoring may be necessary to determine 
eligibility for credits and compliance with permit limits.
    (4) Credit shall be granted only if the discharger demonstrates that 
the intake water is drawn from the same body of water into which the 
discharge is made. The Director may waive this requirement if he finds 
that no environmental degradation will result.
    (5) This section does not apply to the discharge of raw water 
clarifier sludge generated from the treatment of intake water.
    (h) Internal waste streams. (1) When permit effluent limitations or 
standards imposed at the point of discharge are impractical or 
infeasible, effluent limitations or standards for discharges of 
pollutants may be imposed on internal waste streams before mixing with 
other waste streams or cooling water streams. In those instances, the 
monitoring required by Sec. 122.48 shall also be applied to the 
internal waste streams.
    (2) Limits on internal waste streams will be imposed only when the 
fact sheet under Sec. 124.56 sets forth the exceptional circumstances 
which make such limitations necessary, such as when the final discharge 
point is inaccessible (for example, under 10 meters of water), the 
wastes at the point of discharge are so diluted as to make monitoring 
impracticable, or the interferences among pollutants at the point of 
discharge would make detection or analysis impracticable.
    (i) Disposal of pollutants into wells, into POTWs or by land 
application. Permit limitations and standards shall be calculated as 
provided in Sec. 122.50.

[48 FR 14153, Apr. 1, 1983, as amended at 49 FR 38049, Sept. 26, 1984; 
50 FR 4514, Jan. 31, 1985; 54 FR 258, Jan. 4, 1989; 54 FR 18784, May 2, 
1989; 65 FR 30909, May 15, 2000]



Sec. 122.46  Duration of permits (applicable to State programs, see Sec. 

123.25).

    (a) NPDES permits shall be effective for a fixed term not to exceed 
5 years.
    (b) Except as provided in Sec. 122.6, the term of a permit shall 
not be extended by modification beyond the maximum duration specified in 
this section.
    (c) The Director may issue any permit for a duration that is less 
than the full allowable term under this section.
    (d) A permit may be issued to expire on or after the statutory 
deadline set forth in section 301(b)(2) (A), (C), and (E), if the permit 
includes effluent limitations to meet the requirements of section 
301(b)(2) (A), (C), (D), (E) and (F), whether or not applicable effluent 
limitations guidelines have been promulgated or approved.
    (e) A determination that a particular discharger falls within a 
given industrial category for purposes of setting a permit expiration 
date under paragraph (d) of this section is not conclusive as to the 
discharger's inclusion in that industrial category for any other 
purposes, and does not prejudice any rights to challenge or change that 
inclusion at the time that a permit based on that determination is 
formulated.

[48 FR 14153, Apr. 1, 1983, as amended at 49 FR 31842, Aug. 8, 1984; 50 
FR 6940, Feb. 19, 1985; 60 FR 33931, June 29, 1995]



Sec. 122.47  Schedules of compliance.

    (a) General (applicable to State programs, see Sec. 123.25). The 
permit may, when appropriate, specify a schedule of compliance leading 
to compliance with CWA and regulations.
    (1) Time for compliance. Any schedules of compliance under this 
section shall require compliance as soon as possible, but not later than 
the applicable statutory deadline under the CWA.
    (2) The first NPDES permit issued to a new source or a new 
discharger shall contain a schedule of compliance only when necessary to 
allow a reasonable opportunity to attain compliance with requirements 
issued or revised after commencement of construction but less than three 
years before commencement of the relevant discharge. For recommencing 
dischargers, a schedule of compliance shall be available only when 
necessary to allow a reasonable opportunity to attain compliance with

[[Page 259]]

requirements issued or revised less than three years before 
recommencement of discharge.
    (3) Interim dates. Except as provided in paragraph (b)(1)(ii) of 
this section, if a permit establishes a schedule of compliance which 
exceeds 1 year from the date of permit issuance, the schedule shall set 
forth interim requirements and the dates for their achievement.
    (i) The time between interim dates shall not exceed 1 year, except 
that in the case of a schedule for compliance with standards for sewage 
sludge use and disposal, the time between interim dates shall not exceed 
six months.
    (ii) If the time necessary for completion of any interim requirement 
(such as the construction of a control facility) is more than 1 year and 
is not readily divisible into stages for completion, the permit shall 
specify interim dates for the submission of reports of progress toward 
completion of the interim requirements and indicate a projected 
completion date.
    Note: Examples of interim requirements include: (a) Submit a 
complete Step 1 construction grant (for POTWs); (b) let a contract for 
construction of required facilities; (c) commence construction of 
required facilities; (d) complete construction of required facilities.
    (4) Reporting. The permit shall be written to require that no later 
than 14 days following each interim date and the final date of 
compliance, the permittee shall notify the Director in writing of its 
compliance or noncompliance with the interim or final requirements, or 
submit progress reports if paragraph (a)(3)(ii) is applicable.
    (b) Alternative schedules of compliance. An NPDES permit applicant 
or permittee may cease conducting regulated activities (by terminating 
of direct discharge for NPDES sources) rather than continuing to operate 
and meet permit requirements as follows:
    (1) If the permittee decides to cease conducting regulated 
activities at a given time within the term of a permit which has already 
been issued:
    (i) The permit may be modified to contain a new or additional 
schedule leading to timely cessation of activities; or
    (ii) The permittee shall cease conducting permitted activities 
before non-compliance with any interim or final compliance schedule 
requirement already specified in the permit.
    (2) If the decision to cease conducting regulated activities is made 
before issuance of a permit whose term will include the termination 
date, the permit shall contain a schedule leading to termination which 
will ensure timely compliance with applicable requirements no later than 
the statutory deadline.
    (3) If the permittee is undecided whether to cease conducting 
regulated activities, the Director may issue or modify a permit to 
contain two schedules as follows:
    (i) Both schedules shall contain an identical interim deadline 
requiring a final decision on whether to cease conducting regulated 
activities no later than a date which ensures sufficient time to comply 
with applicable requirements in a timely manner if the decision is to 
continue conducting regulated activities;
    (ii) One schedule shall lead to timely compliance with applicable 
requirements, no later than the statutory deadline;
    (iii) The second schedule shall lead to cessation of regulated 
activities by a date which will ensure timely compliance with applicable 
requirements no later than the statutory deadline.
    (iv) Each permit containing two schedules shall include a 
requirement that after the permittee has made a final decision under 
paragraph (b)(3)(i) of this section it shall follow the schedule leading 
to compliance if the decision is to continue conducting regulated 
activities, and follow the schedule leading to termination if the 
decision is to cease conducting regulated activities.
    (4) The applicant's or permittee's decision to cease conducting 
regulated activities shall be evidenced by a firm public commitment 
satisfactory to the Director, such as a resolution of the board of 
directors of a corporation.

[48 FR 14153, Apr. 1, 1983, as amended at 49 FR 38050, Sept. 26, 1984; 
50 FR 6940, Feb. 19, 1985; 54 FR 18784, May 2, 1989; 65 FR 30909, May 
15, 2000]

[[Page 260]]



Sec. 122.48  Requirements for recording and reporting of monitoring results 

(applicable to State programs, see Sec. 123.25).

    All permits shall specify:
    (a) Requirements concerning the proper use, maintenance, and 
installation, when appropriate, of monitoring equipment or methods 
(including biological monitoring methods when appropriate);
    (b) Required monitoring including type, intervals, and frequency 
sufficient to yield data which are representative of the monitored 
activity including, when appropriate, continuous monitoring;
    (c) Applicable reporting requirements based upon the impact of the 
regulated activity and as specified in Sec. 122.44. Reporting shall be 
no less frequent than specified in the above regulation.

[48 FR 14153, Apr. 1, 1983; 50 FR 6940, Feb. 19, 1985]



Sec. 122.49  Considerations under Federal law.

    The following is a list of Federal laws that may apply to the 
issuance of permits under these rules. When any of these laws is 
applicable, its procedures must be followed. When the applicable law 
requires consideration or adoption of particular permit conditions or 
requires the denial of a permit, those requirements also must be 
followed.
    (a) The Wild and Scenic Rivers Act, 16 U.S.C. 1273 et seq. section 7 
of the Act prohibits the Regional Administrator from assisting by 
license or otherwise the construction of any water resources project 
that would have a direct, adverse effect on the values for which a 
national wild and scenic river was established.
    (b) The National Historic Preservation Act of 1966, 16 U.S.C. 470 et 
seq. section 106 of the Act and implementing regulations (36 CFR part 
800) require the Regional Administrator, before issuing a license, to 
adopt measures when feasible to mitigate potential adverse effects of 
the licensed activity and properties listed or eligible for listing in 
the National Register of Historic Places. The Act's requirements are to 
be implemented in cooperation with State Historic Preservation Officers 
and upon notice to, and when appropriate, in consultation with the 
Advisory Council on Historic Preservation.
    (c) The Endangered Species Act, 16 U.S.C. 1531 et seq. section 7 of 
the Act and implementing regulations (50 CFR part 402) require the 
Regional Administrator to ensure, in consultation with the Secretary of 
the Interior or Commerce, that any action authorized by EPA is not 
likely to jeopardize the continued existence of any endangered or 
threatened species or adversely affect its critical habitat.
    (d) The Coastal Zone Management Act, 16 U.S.C. 1451 et seq. section 
307(c) of the Act and implementing regulations (15 CFR part 930) 
prohibit EPA from issuing a permit for an activity affecting land or 
water use in the coastal zone until the applicant certifies that the 
proposed activity complies with the State Coastal Zone Management 
program, and the State or its designated agency concurs with the 
certification (or the Secretary of Commerce overrides the State's 
nonconcurrence).
    (e) The Fish and Wildlife Coordination Act, 16 U.S.C. 661 et seq., 
requires that the Regional Administrator, before issuing a permit 
proposing or authorizing the impoundment (with certain exemptions), 
diversion, or other control or modification of any body of water, 
consult with the appropriate State agency exercising jurisdiction over 
wildlife resources to conserve those resources.
    (f) Executive orders. [Reserved]
    (g) The National Environmental Policy Act, 42 U.S.C. 4321 et seq., 
may require preparation of an Environmental Impact Statement and 
consideration of EIS-related permit conditions (other than effluent 
limitations) as provided in Sec. 122.29(c).

(Clean Water Act (33 U.S.C. 1251 et seq.), Safe Drinking Water Act (42 
U.S.C. 300f et seq.), Clean Air Act (42 U.S.C. 7401 et seq.), Resource 
Conservation and Recovery Act (42 U.S.C. 6901 et seq.))

[48 FR 14153, Apr. 1, 1983, as amended at 48 FR 39620, Sept. 1, 1983; 49 
FR 38050, Sept. 26, 1984]

[[Page 261]]



Sec. 122.50  Disposal of pollutants into wells, into publicly owned treatment 

works or by land application (applicable to State NPDES programs, see Sec. 

123.25).

    (a) When part of a discharger's process wastewater is not being 
discharged into waters of the United States or contiguous zone because 
it is disposed into a well, into a POTW, or by land application thereby 
reducing the flow or level of pollutants being discharged into waters of 
the United States, applicable effluent standards and limitations for the 
discharge in an NPDES permit shall be adjusted to reflect the reduced 
raw waste resulting from such disposal. Effluent limitations and 
standards in the permit shall be calculated by one of the following 
methods:
    (1) If none of the waste from a particular process is discharged 
into waters of the United States, and effluent limitations guidelines 
provide separate allocation for wastes from that process, all 
allocations for the process shall be eliminated from calculation of 
permit effluent limitations or standards.
    (2) In all cases other than those described in paragraph (a)(1) of 
this section, effluent limitations shall be adjusted by multiplying the 
effluent limitation derived by applying effluent limitation guidelines 
to the total waste stream by the amount of wastewater flow to be treated 
and discharged into waters of the United States, and dividing the result 
by the total wastewater flow. Effluent limitations and standards so 
calculated may be further adjusted under part 125, subpart D to make 
them more or less stringent if discharges to wells, publicly owned 
treatment works, or by land application change the character or 
treatability of the pollutants being discharged to receiving waters. 
This method may be algebraically expressed as:
[GRAPHIC] [TIFF OMITTED] TR23MR95.119

where P is the permit effluent limitation, E is the limitation derived 
by applying effluent guidelines to the total wastestream, N is the 
wastewater flow to be treated and discharged to waters of the United 
States, and T is the total wastewater flow.

    (b) Paragraph (a) of this section does not apply to the extent that 
promulgated effluent limitations guidelines:
    (1) Control concentrations of pollutants discharged but not mass; or
    (2) Specify a different specific technique for adjusting effluent 
limitations to account for well injection, land application, or disposal 
into POTWs.
    (c) Paragraph (a) of this section does not alter a discharger's 
obligation to meet any more stringent requirements established under 
Sec. Sec. 122.41, 122.42, 122.43, and 122.44.

[48 FR 14153, Apr. 1, 1983, as amended at 49 FR 38050, Sept. 26, 1984]



    Subpart D_Transfer, Modification, Revocation and Reissuance, and 
                         Termination of Permits



Sec. 122.61  Transfer of permits (applicable to State programs, see Sec. 

123.25).

    (a) Transfers by modification. Except as provided in paragraph (b) 
of this section, a permit may be transferred by the permittee to a new 
owner or operator only if the permit has been modified or revoked and 
reissued (under Sec. 122.62(b)(2)), or a minor modification made (under 
Sec. 122.63(d)), to identify the new permittee and incorporate such 
other requirements as may be necessary under CWA.
    (b) Automatic transfers. As an alternative to transfers under 
paragraph (a) of this section, any NPDES permit may be automatically 
transferred to a new permittee if:
    (1) The current permittee notifies the Director at least 30 days in 
advance of the proposed transfer date in paragraph (b)(2) of this 
section;
    (2) The notice includes a written agreement between the existing and 
new permittees containing a specific date for transfer of permit 
responsibility, coverage, and liability between them; and
    (3) The Director does not notify the existing permittee and the 
proposed new permittee of his or her intent to modify or revoke and 
reissue the permit. A modification under this subparagraph may also be a 
minor modification under Sec. 122.63. If this notice is not received, 
the transfer is effective on the date specified in the agreement

[[Page 262]]

mentioned in paragraph (b)(2) of this section.



Sec. 122.62  Modification or revocation and reissuance of permits (applicable 

to State programs, see Sec. 123.25).

    When the Director receives any information (for example, inspects 
the facility, receives information submitted by the permittee as 
required in the permit (see Sec. 122.41), receives a request for 
modification or revocation and reissuance under Sec. 124.5, or conducts 
a review of the permit file) he or she may determine whether or not one 
or more of the causes listed in paragraphs (a) and (b) of this section 
for modification or revocation and reissuance or both exist. If cause 
exists, the Director may modify or revoke and reissue the permit 
accordingly, subject to the limitations of Sec. 124.5(c), and may 
request an updated application if necessary. When a permit is modified, 
only the conditions subject to modification are reopened. If a permit is 
revoked and reissued, the entire permit is reopened and subject to 
revision and the permit is reissued for a new term. See Sec. 
124.5(c)(2). If cause does not exist under this section or Sec. 122.63, 
the Director shall not modify or revoke and reissue the permit. If a 
permit modification satisfies the criteria in Sec. 122.63 for ``minor 
modifications'' the permit may be modified without a draft permit or 
public review. Otherwise, a draft permit must be prepared and other 
procedures in part 124 (or procedures of an approved State program) 
followed.
    (a) Causes for modification. The following are causes for 
modification but not revocation and reissuance of permits except when 
the permittee requests or agrees.
    (1) Alterations. There are material and substantial alterations or 
additions to the permitted facility or activity (including a change or 
changes in the permittee's sludge use or disposal practice) which 
occurred after permit issuance which justify the application of permit 
conditions that are different or absent in the existing permit.

    Note: Certain reconstruction activities may cause the new source 
provisions of Sec. 122.29 to be applicable.

    (2) Information. The Director has received new information. Permits 
may be modified during their terms for this cause only if the 
information was not available at the time of permit issuance (other than 
revised regulations, guidance, or test methods) and would have justified 
the application of different permit conditions at the time of issuance. 
For NPDES general permits (Sec. 122.28) this cause includes any 
information indicating that cumulative effects on the environment are 
unacceptable. For new source or new discharger NPDES permits Sec. Sec. 
122.21, 122.29), this cause shall include any significant information 
derived from effluent testing required under Sec. 122.21(k)(5)(vi) or 
Sec. 122.21(h)(4)(iii) after issuance of the permit.
    (3) New regulations. The standards or regulations on which the 
permit was based have been changed by promulgation of amended standards 
or regulations or by judicial decision after the permit was issued. 
Permits may be modified during their terms for this cause only as 
follows:
    (i) For promulgation of amended standards or regulations, when:
    (A) The permit condition requested to be modified was based on a 
promulgated effluent limitation guideline, EPA approved or promulgated 
water quality standards, or the Secondary Treatment Regulations under 
part 133; and
    (B) EPA has revised, withdrawn, or modified that portion of the 
regulation or effluent limitation guideline on which the permit 
condition was based, or has approved a State action with regard to a 
water quality standard on which the permit condition was based; and
    (C) A permittee requests modification in accordance with Sec. 124.5 
within ninety (90) days after Federal Register notice of the action on 
which the request is based.
    (ii) For judicial decisions, a court of competent jurisdiction has 
remanded and stayed EPA promulgated regulations or effluent limitation 
guidelines, if the remand and stay concern that portion of the 
regulations or guidelines on which the permit condition was based and a 
request is filed by the permittee in accordance with Sec. 124.5 within 
ninety (90) days of judicial remand.

[[Page 263]]

    (iii) For changes based upon modified State certifications of NPDES 
permits, see Sec. 124.55(b).
    (4) Compliance schedules. The Director determines good cause exists 
for modification of a compliance schedule, such as an act of God, 
strike, flood, or materials shortage or other events over which the 
permittee has little or no control and for which there is no reasonably 
available remedy. However, in no case may an NPDES compliance schedule 
be modified to extend beyond an applicable CWA statutory deadline. See 
also Sec. 122.63(c) (minor modifications) and paragraph (a)(14) of this 
section (NPDES innovative technology).
    (5) When the permittee has filed a request for a variance under CWA 
section 301(c), 301(g), 301(h), 301(i), 301(k), or 316(a) or for 
``fundamentally different factors'' within the time specified in Sec. 
122.21 or Sec. 125.27(a).
    (6) 307(a) toxics. When required to incorporate an applicable 307(a) 
toxic effluent standard or prohibition (see Sec. 122.44(b)).
    (7) Reopener. When required by the ``reopener'' conditions in a 
permit, which are established in the permit under Sec. 122.44(b) (for 
CWA toxic effluent limitations and Standards for sewage sludge use or 
disposal, see also Sec. 122.44(c)) or 40 CFR 403.18(e) (Pretreatment 
program).
    (8)(i) Net limits. Upon request of a permittee who qualifies for 
effluent limitations on a net basis under Sec. 122.45(g).
    (ii) When a discharger is no longer eligible for net limitations, as 
provided in Sec. 122.45(g)(1)(ii).
    (9) Pretreatment. As necessary under 40 CFR 403.8(e) (compliance 
schedule for development of pretreatment program).
    (10) Failure to notify. Upon failure of an approved State to notify, 
as required by section 402(b)(3), another State whose waters may be 
affected by a discharge from the approved State.
    (11) Non-limited pollutants. When the level of discharge of any 
pollutant which is not limited in the permit exceeds the level which can 
be achieved by the technology-based treatment requirements appropriate 
to the permittee under Sec. 125.3(c).
    (12) Notification levels. To establish a ``notification level'' as 
provided in Sec. 122.44(f).
    (13) Compliance schedules. To modify a schedule of compliance to 
reflect the time lost during construction of an innovative or 
alternative facility, in the case of a POTW which has received a grant 
under section 202(a)(3) of CWA for 100% of the costs to modify or 
replace facilities constructed with a grant for innovative and 
alternative wastewater technology under section 202(a)(2). In no case 
shall the compliance schedule be modified to extend beyond an applicable 
CWA statutory deadline for compliance.
    (14) For a small MS4, to include an effluent limitation requiring 
implementation of a minimum control measure or measures as specified in 
Sec. 122.34(b) when:
    (i) The permit does not include such measure(s) based upon the 
determination that another entity was responsible for implementation of 
the requirement(s); and
    (ii) The other entity fails to implement measure(s) that satisfy the 
requirement(s).
    (15) To correct technical mistakes, such as errors in calculation, 
or mistaken interpretations of law made in determining permit 
conditions.
    (16) When the discharger has installed the treatment technology 
considered by the permit writer in setting effluent limitations imposed 
under section 402(a)(1) of the CWA and has properly operated and 
maintained the facilities but nevertheless has been unable to achieve 
those effluent limitations. In this case, the limitations in the 
modified permit may reflect the level of pollutant control actually 
achieved (but shall not be less stringent than required by a 
subsequently promulgated effluent limitations guideline).
    (17) Nutrient Management Plans. The incorporation of the terms of a 
CAFO's nutrient management plan into the terms and conditions of a 
general permit when a CAFO obtains coverage under a general permit in 
accordance with Sec. Sec. 122.23(h) and 122.28 is not a cause for 
modification pursuant to the requirements of this section.

[[Page 264]]

    (18) Land application plans. When required by a permit condition to 
incorporate a land application plan for beneficial reuse of sewage 
sludge, to revise an existing land application plan, or to add a land 
application plan.
    (b) Causes for modification or revocation and reissuance. The 
following are causes to modify or, alternatively, revoke and reissue a 
permit:
    (1) Cause exists for termination under Sec. 122.64, and the 
Director determines that modification or revocation and reissuance is 
appropriate.
    (2) The Director has received notification (as required in the 
permit, see Sec. 122.41(l)(3)) of a proposed transfer of the permit. A 
permit also may be modified to reflect a transfer after the effective 
date of an automatic transfer (Sec. 122.61(b)) but will not be revoked 
and reissued after the effective date of the transfer except upon the 
request of the new permittee.

[48 FR 14153, Apr. 1, 1983, as amended at 49 FR 25981, June 25, 1984; 49 
FR 37009, Sept. 29, 1984; 49 FR 38050, Sept. 26, 1984; 50 FR 4514, Jan. 
31, 1985; 51 FR 20431, June 4, 1986; 51 FR 26993, July 28, 1986; 54 FR 
256, 258, Jan. 4, 1989; 54 FR 18784, May 2, 1989; 60 FR 33931, June 29, 
1995; 64 FR 68847, Dec. 8, 1999; 65 FR 30909, May 15, 2000; 70 FR 60191, 
Oct. 14, 2005; 73 FR 70485, Nov. 20, 2008]



Sec. 122.63  Minor modifications of permits.

    Upon the consent of the permittee, the Director may modify a permit 
to make the corrections or allowances for changes in the permitted 
activity listed in this section, without following the procedures of 
part 124. Any permit modification not processed as a minor modification 
under this section must be made for cause and with part 124 draft permit 
and public notice as required in Sec. 122.62. Minor modifications may 
only:
    (a) Correct typographical errors;
    (b) Require more frequent monitoring or reporting by the permittee;
    (c) Change an interim compliance date in a schedule of compliance, 
provided the new date is not more than 120 days after the date specified 
in the existing permit and does not interfere with attainment of the 
final compliance date requirement; or
    (d) Allow for a change in ownership or operational control of a 
facility where the Director determines that no other change in the 
permit is necessary, provided that a written agreement containing a 
specific date for transfer of permit responsibility, coverage, and 
liability between the current and new permittees has been submitted to 
the Director.
    (e)(1) Change the construction schedule for a discharger which is a 
new source. No such change shall affect a discharger's obligation to 
have all pollution control equipment installed and in operation prior to 
discharge under Sec. 122.29.
    (2) Delete a point source outfall when the discharge from that 
outfall is terminated and does not result in discharge of pollutants 
from other outfalls except in accordance with permit limits.
    (f) [Reserved]
    (g) Incorporate conditions of a POTW pretreatment program that has 
been approved in accordance with the procedures in 40 CFR 403.11 (or a 
modification thereto that has been approved in accordance with the 
procedures in 40 CFR 403.18) as enforceable conditions of the POTW's 
permits.
    (h) Incorporate changes to the terms of a CAFO's nutrient management 
plan that have been revised in accordance with the requirements of Sec. 
122.42(e)(6).

[48 FR 14153, Apr. 1, 1983, as amended at 49 FR 38051, Sept. 26, 1984; 
51 FR 20431, June 4, 1986; 53 FR 40616, Oct. 17, 1988; 60 FR 33931, June 
29, 1995; 73 FR 70485, Nov. 20, 2008]



Sec. 122.64  Termination of permits (applicable to State programs, see Sec. 

123.25).

    (a) The following are causes for terminating a permit during its 
term, or for denying a permit renewal application:
    (1) Noncompliance by the permittee with any condition of the permit;
    (2) The permittee's failure in the application or during the permit 
issuance process to disclose fully all relevant facts, or the 
permittee's misrepresentation of any relevant facts at any time;
    (3) A determination that the permitted activity endangers human 
health or the environment and can only be regulated to acceptable levels 
by permit modification or termination; or

[[Page 265]]

    (4) A change in any condition that requires either a temporary or 
permanent reduction or elimination of any discharge or sludge use or 
disposal practice controlled by the permit (for example, plant closure 
or termination of discharge by connection to a POTW).
    (b) The Director shall follow the applicable procedures in part 124 
or part 22 of this chapter, as appropriate (or State procedures 
equivalent to part 124) in terminating any NPDES permit under this 
section, except that if the entire discharge is permanently terminated 
by elimination of the flow or by connection to a POTW (but not by land 
application or disposal into a well), the Director may terminate the 
permit by notice to the permittee. Termination by notice shall be 
effective 30 days after notice is sent, unless the permittee objects 
within that time. If the permittee objects during that period, the 
Director shall follow part 124 of this chapter or applicable State 
procedures for termination. Expedited permit termination procedures are 
not available to permittees that are subject to pending State and/or 
Federal enforcement actions including citizen suits brought under State 
or Federal law. If requesting expedited permit termination procedures, a 
permittee must certify that it is not subject to any pending State or 
Federal enforcement actions including citizen suits brought under State 
or Federal law. State-authorized NPDES programs are not required to use 
part 22 of this chapter procedures for NPDES permit terminations.

[48 FR 14153, Apr. 1, 1983; 50 FR 6940, Feb. 19, 1985, as amended at 54 
FR 18784, May 2, 1989; 65 FR 30909, May 15, 2000]



     Sec. Appendix A to Part 122--NPDES Primary Industry Categories

    Any permit issued after June 30, 1981 to dischargers in the 
following categories shall include effluent limitations and a compliance 
schedule to meet the requirements of section 301(b)(2)(A), (C), (D), (E) 
and (F) of CWA, whether or not applicable effluent limitations 
guidelines have been promulgated. See Sec. Sec. 122.44 and 122.46.

                            Industry Category

Adhesives and sealants
Aluminum forming
Auto and other laundries
Battery manufacturing
Coal mining
Coil coating
Copper forming
Electrical and electronic components
Electroplating
Explosives manufacturing
Foundries
Gum and wood chemicals
Inorganic chemicals manufacturing
Iron and steel manufacturing
Leather tanning and finishing
Mechanical products manufacturing
Nonferrous metals manufacturing
Ore mining
Organic chemicals manufacturing
Paint and ink formulation
Pesticides
Petroleum refining
Pharmaceutical preparations
Photographic equipment and supplies
Plastics processing
Plastic and synthetic materials manufacturing
Porcelain enameling
Printing and publishing
Pulp and paper mills
Rubber processing
Soap and detergent manufacturing
Steam electric power plants
Textile mills
Timber products processing



                 Sec. Appendix B to Part 122 [Reserved]



  Sec. Appendix C to Part 122--Criteria for Determining a Concentrated 
            Aquatic Animal Production Facility (Sec. 122.24)

    A hatchery, fish farm, or other facility is a concentrated aquatic 
animal production facility for purposes of Sec. 122.24 if it contains, 
grows, or holds aquatic animals in either of the following categories:
    (a) Cold water fish species or other cold water aquatic animals in 
ponds, raceways, or other similar structures which discharge at least 30 
days per year but does not include:
    (1) Facilities which produce less than 9,090 harvest weight 
kilograms (approximately 20,000 pounds) of aquatic animals per year; and
    (2) Facilities which feed less than 2,272 kilograms (approximately 
5,000 pounds) of food during the calendar month of maximum feeding.
    (b) Warm water fish species or other warm water aquatic animals in 
ponds, raceways, or other similar structures which discharge at least 30 
days per year, but does not include:
    (1) Closed ponds which discharge only during periods of excess 
runoff; or
    (2) Facilities which produce less than 45,454 harvest weight 
kilograms (approximately 100,000 pounds) of aquatic animals per year.

[[Page 266]]

    ``Cold water aquatic animals'' include, but are not limited to, the 
Salmonidae family of fish; e.g., trout and salmon.
    ``Warm water aquatic animals'' include, but are not limited to, the 
Ameiuride, Centrarchidae and Cyprinidae families of fish; e.g., 
respectively, catfish, sunfish and minnows.



     Sec. Appendix D to Part 122--NPDES Permit Application Testing 
                       Requirements (Sec. 122.21)

Table I--Testing Requirements for Organic Toxic Pollutants by Industrial
                    Category for Existing Dischargers
------------------------------------------------------------------------
                                             GC/MS Fraction \1\
                                  --------------------------------------
       Industrial category                             Base/
                                   Volatile    Acid   neutral  Pesticide
------------------------------------------------------------------------
Adhesives and Sealants...........       \2\      \2\      \2\
Aluminum Forming.................       \2\      \2\      \2\
Auto and Other Laundries.........       \2\      \2\      \2\       \2\
Battery Manufacturing............       \2\  .......      \2\
Coal Mining......................       \2\      \2\      \2\       \2\
Coil Coating.....................       \2\      \2\      \2\
Copper Forming...................       \2\      \2\      \2\
Electric and Electronic                 \2\      \2\      \2\       \2\
 Components......................
Electroplating...................       \2\      \2\      \2\
Explosives Manufacturing.........  ........      \2\      \2\
Foundries........................       \2\      \2\      \2\
Gum and Wood Chemicals...........       \2\      \2\      \2\       \2\
Inorganic Chemicals Manufacturing       \2\      \2\      \2\
Iron and Steel Manufacturing.....       \2\      \2\      \2\
Leather Tanning and Finishing....       \2\      \2\      \2\       \2\
Mechanical Products Manufacturing       \2\      \2\      \2\
Nonferrous Metals Manufacturing..       \2\      \2\      \2\       \2\
Ore Mining.......................       \2\      \2\      \2\       \2\
Organic Chemicals Manufacturing..       \2\      \2\      \2\       \2\
Paint and Ink Formulation........       \2\      \2\      \2\       \2\
Pesticides.......................       \2\      \2\      \2\       \2\
Petroleum Refining...............       \2\      \2\      \2\       \2\
Pharmaceutical Preparations......       \2\      \2\      \2\
Photographic Equipment and              \2\      \2\      \2\       \2\
 Supplies........................
Plastic and Synthetic Materials         \2\      \2\      \2\       \2\
 Manufacturing...................
Plastic Processing...............       \2\  .......  .......
Porcelain Enameling..............       \2\  .......      \2\       \2\
Printing and Publishing..........       \2\      \2\      \2\       \2\
Pulp and Paper Mills.............       \2\      \2\      \2\       \2\
Rubber Processing................       \2\      \2\      \2\
Soap and Detergent Manufacturing.       \2\      \2\      \2\
Steam Electric Power Plants......       \2\      \2\      \2\
Textile Mills....................       \2\      \2\      \2\       \2\
Timber Products Processing.......       \2\      \2\      \2\      \2\
------------------------------------------------------------------------
\1\ The toxic pollutants in each fraction are listed in Table II.
\2\ Testing required.

Table II--Organic Toxic Pollutants in Each of Four Fractions in Analysis 
             by Gas Chromatography/Mass Spectroscopy (GS/MS)

                                Volatiles

 1V acrolein
 2V acrylonitrile
 3V benzene
 5V bromoform
 6V carbon tetrachloride
 7V chlorobenzene
 8V chlorodibromomethane
 9V chloroethane
10V 2-chloroethylvinyl ether
11V chloroform
12V dichlorobromomethane
14V 1,1-dichloroethane
15V 1,2-dichloroethane
16V 1,1-dichloroethylene
17V 1,2-dichloropropane
18V 1,3-dichloropropylene
19V ethylbenzene
20V methyl bromide
21V methyl chloride
22V methylene chloride
23V 1,1,2,2-tetrachloroethane
24V tetrachloroethylene
25V toluene
26V 1,2-trans-dichloroethylene
27V 1,1,1-trichloroethane
28V 1,1,2-trichloroethane
29V trichloroethylene
31V vinyl chloride

                             Acid Compounds

 1A 2-chlorophenol
 2A 2,4-dichlorophenol
 3A 2,4-dimethylphenol
 4A 4,6-dinitro-o-cresol
 5A 2,4-dinitrophenol
 6A 2-nitrophenol
 7A 4-nitrophenol
 8A p-chloro-m-cresol
 9A pentachlorophenol
10A phenol
11A 2,4,6-trichlorophenol

                              Base/Neutral

 1B acenaphthene
 2B acenaphthylene
 3B anthracene

[[Page 267]]

 4B benzidine
 5B benzo(a)anthracene
 6B benzo(a)pyrene
 7B 3,4-benzofluoranthene
 8B benzo(ghi)perylene
 9B benzo(k)fluoranthene
10B bis(2-chloroethoxy)methane
11B bis(2-chloroethyl)ether
12B bis(2-chloroisopropyl)ether
13B bis (2-ethylhexyl)phthalate
14B 4-bromophenyl phenyl ether
15B butylbenzyl phthalate
16B 2-chloronaphthalene
17B 4-chlorophenyl phenyl ether
18B chrysene
19B dibenzo(a,h)anthracene
20B 1,2-dichlorobenzene
21B 1,3-dichlorobenzene
22B 1,4-dichlorobenzene
23B 3,3'-dichlorobenzidine
24B diethyl phthalate
25B dimethyl phthalate
26B di-n-butyl phthalate
27B 2,4-dinitrotoluene
28B 2,6-dinitrotoluene
29B di-n-octyl phthalate
30B 1,2-diphenylhydrazine (as azobenzene)
31B fluroranthene
32B fluorene
33B hexachlorobenzene
34B hexachlorobutadiene
35B hexachlorocyclopentadiene
36B hexachloroethane
37B indeno(1,2,3-cd)pyrene
38B isophorone
39B napthalene
40B nitrobenzene
41B N-nitrosodimethylamine
42B N-nitrosodi-n-propylamine
43B N-nitrosodiphenylamine
44B phenanthrene
45B pyrene
46B 1,2,4-trichlorobenzene

                               Pesticides

 1P aldrin
 2P alpha-BHC
 3P beta-BHC
 4P gamma-BHC
 5P delta-BHC
 6P chlordane
 7P 4,4'-DDT
 8P 4,4'-DDE
 9P 4,4'-DDD
10P dieldrin
11P alpha-endosulfan
12P beta-endosulfan
13P endosulfan sulfate
14P endrin
15P endrin aldehyde
16P heptachlor
17P heptachlor epoxide
18P PCB-1242
19P PCB-1254
20P PCB-1221
21P PCB-1232
22P PCB-1248
23P PCB-1260
24P PCB-1016
25P toxaphene

Table III--Other Toxic Pollutants (Metals and Cyanide) and Total Phenols

Antimony, Total
Arsenic, Total
Beryllium, Total
Cadmium, Total
Chromium, Total
Copper, Total
Lead, Total
Mercury, Total
Nickel, Total
Selenium, Total
Silver, Total
Thallium, Total
Zinc, Total
Cyanide, Total
Phenols, Total

  Table IV--Conventional and Nonconventional Pollutants Required To Be 
        Tested by Existing Dischargers if Expected to be Present

Bromide
Chlorine, Total Residual
Color
Fecal Coliform
Fluoride
Nitrate-Nitrite
Nitrogen, Total Organic
Oil and Grease
Phosphorus, Total
Radioactivity
Sulfate
Sulfide
Sulfite
Surfactants
Aluminum, Total
Barium, Total
Boron, Total
Cobalt, Total
Iron, Total
Magnesium, Total
Molybdenum, Total
Manganese, Total
Tin, Total
Titanium, Total

   Table V--Toxic Pollutants and Hazardous Substances Required To Be 
      Identified by Existing Dischargers if Expected To Be Present

                            Toxic Pollutants

Asbestos

                          Hazardous Substances

Acetaldehyde
Allyl alcohol
Allyl chloride
Amyl acetate
Aniline
Benzonitrile

[[Page 268]]

Benzyl chloride
Butyl acetate
Butylamine
Captan
Carbaryl
Carbofuran
Carbon disulfide
Chlorpyrifos
Coumaphos
Cresol
Crotonaldehyde
Cyclohexane
2,4-D (2,4-Dichlorophenoxy acetic acid)
Diazinon
Dicamba
Dichlobenil
Dichlone
2,2-Dichloropropionic acid
Dichlorvos
Diethyl amine
Dimethyl amine
Dintrobenzene
Diquat
Disulfoton
Diuron
Epichlorohydrin
Ethion
Ethylene diamine
Ethylene dibromide
Formaldehyde
Furfural
Guthion
Isoprene
Isopropanolamine Dodecylbenzenesulfonate
Kelthane
Kepone
Malathion
Mercaptodimethur
Methoxychlor
Methyl mercaptan
Methyl methacrylate
Methyl parathion
Mevinphos
Mexacarbate
Monoethyl amine
Monomethyl amine
Naled
Napthenic acid
Nitrotoluene
Parathion
Phenolsulfanate
Phosgene
Propargite
Propylene oxide
Pyrethrins
Quinoline
Resorcinol
Strontium
Strychnine
Styrene
2,4,5-T (2,4,5-Trichlorophenoxy acetic acid)
TDE (Tetrachlorodiphenylethane)
2,4,5-TP [2-(2,4,5-Trichlorophenoxy) propanoic acid]
Trichlorofan
Triethanolamine dodecylbenzenesulfonate
Triethylamine
Trimethylamine
Uranium
Vanadium
Vinyl acetate
Xylene
Xylenol
Zirconium

    [Note 1: The Environmental Protection Agency has suspended the 
requirements of Sec. 122.21(g)(7)(ii)(A) and Table I of Appendix D as 
they apply to certain industrial categories. The suspensions are as 
follows:
    a. At 46 FR 2046, Jan. 8, 1981, the Environmental Protection Agency 
suspended until further notice Sec. 122.21(g)(7)(ii)(A) as it applies 
to coal mines.
    b. At 46 FR 22585, Apr. 20, 1981, the Environmental Protection 
Agency suspended until further notice Sec. 122.21(g)(7)(ii)(A) and the 
corresponding portions of Item V-C of the NPDES application Form 2c as 
they apply to:
    1. Testing and reporting for all four organic fractions in the 
Greige Mills Subcategory of the Textile Mills industry (Subpart C--Low 
water use processing of 40 CFR part 410), and testing and reporting for 
the pesticide fraction in all other subcategories of this industrial 
category.
    2. Testing and reporting for the volatile, base/neutral and 
pesticide fractions in the Base and Precious Metals Subcategory of the 
Ore Mining and Dressing industry (subpart B of 40 CFR part 440), and 
testing and reporting for all four fractions in all other subcategories 
of this industrial category.
    3. Testing and reporting for all four GC/MS fractions in the 
Porcelain Enameling industry.
    c. At 46 FR 35090, July 1, 1981, the Environmental Protection Agency 
suspended until further notice Sec. 122.21(g)(7)(ii)(A) and the 
corresponding portions of Item V-C of the NPDES application Form 2c as 
they apply to:
    1. Testing and reporting for the pesticide fraction in the Tall Oil 
Rosin Subcategory (subpart D) and Rosin-Based Derivatives Subcategory 
(subpart F) of the Gum and Wood Chemicals industry (40 CFR part 454), 
and testing and reporting for the pesticide and base/netural fractions 
in all other subcategories of this industrial category.
    2. Testing and reporting for the pesticide fraction in the Leather 
Tanning and Finishing, Paint and Ink Formulation, and Photographic 
Supplies industrial categories.
    3. Testing and reporting for the acid, base/neutral and pesticide 
fractions in the Petroleum Refining industrial category.
    4. Testing and reporting for the pesticide fraction in the 
Papergrade Sulfite subcategories (subparts J and U) of the Pulp and 
Paper industry (40 CFR part 430); testing and reporting for the base/
neutral and pesticide fractions in the following subcategories: Deink 
(subpart Q), Dissolving Kraft (subpart

[[Page 269]]

F), and Paperboard from Waste Paper (subpart E); testing and reporting 
for the volatile, base/neutral and pesticide fractions in the following 
subcategories: BCT Bleached Kraft (subpart H), Semi-Chemical (subparts B 
and C), and Nonintegrated-Fine Papers (subpart R); and testing and 
reporting for the acid, base/neutral, and pesticide fractions in the 
following subcategories: Fine Bleached Kraft (subpart I), Dissolving 
Sulfite Pulp (subpart K), Groundwood-Fine Papers (subpart O), Market 
Bleached Kraft (subpart G), Tissue from Wastepaper (subpart T), and 
Nonintegrated-Tissue Papers (subpart S).
    5. Testing and reporting for the base/neutral fraction in the Once-
Through Cooling Water, Fly Ash and Bottom Ash Transport Water process 
wastestreams of the Steam Electric Power Plant industrial category.

This revision continues these suspensions.]*
---------------------------------------------------------------------------

    * Editorial Note: The words ``This revision'' refer to the document 
published at 48 FR 14153, Apr. 1, 1983.
---------------------------------------------------------------------------

    For the duration of the suspensions, therefore, Table I effectively 
reads:

 Table I--Testing Requirements for Organic Toxic Pollutants by Industry
                                Category
------------------------------------------------------------------------
                                             GC/MS fraction \2\
         Industry category         -------------------------------------
                                    Volatile   Acid   Neutral  Pesticide
------------------------------------------------------------------------
Adhesives and sealants............    (\1\)    (\1\)    (\1\)
Aluminum forming..................    (\1\)    (\1\)    (\1\)
Auto and other laundries..........    (\1\)    (\1\)    (\1\)     (\1\)
Battery manufacturing.............    (\1\)   ......    (\1\)
Coal mining.......................  ........  ......  .......
Coil coating......................    (\1\)    (\1\)    (\1\)
Copper forming....................    (\1\)    (\1\)    (\1\)
Electric and electronic compounds.    (\1\)    (\1\)    (\1\)     (\1\)
Electroplating....................    (\1\)    (\1\)    (\1\)
Explosives manufacturing..........  ........   (\1\)    (\1\)
Foundries.........................    (\1\)    (\1\)    (\1\)
Gum and wood (all subparts except     (\1\)    (\1\)  .......
 D and F).........................
Subpart D--tall oil rosin.........    (\1\)    (\1\)    (\1\)
Subpart F--rosin-based derivatives    (\1\)    (\1\)    (\1\)
Inorganic chemicals manufacturing.    (\1\)    (\1\)    (\1\)
Iron and steel manufacturing......    (\1\)    (\1\)    (\1\)
Leather tanning and finishing.....    (\1\)    (\1\)    (\1\)
Mechanical products manufacturing.    (\1\)    (\1\)    (\1\)
Nonferrous metals manufacturing...    (\1\)    (\1\)    (\1\)     (\1\)
Ore mining (applies to the base     ........   (\1\)
 and precious metals/Subpart B)...
Organic chemicals manufacturing...    (\1\)    (\1\)    (\1\)     (\1\)
Paint and ink formulation.........    (\1\)    (\1\)    (\1\)
Pesticides........................    (\1\)    (\1\)    (\1\)     (\1\)
Petroleum refining................    (\1\)
Pharmaceutical preparations.......    (\1\)    (\1\)    (\1\)
Photographic equipment and            (\1\)    (\1\)    (\1\)
 supplies.........................
Plastic and synthetic materials       (\1\)    (\1\)    (\1\)     (\1\)
 manufacturing....................
Plastic processing................    (\1\)
Porcelain enameling...............
Printing and publishing...........    (\1\)    (\1\)    (\1\)     (\1\)
Pulp and paperboard mills--see
 footnote \3\.....................
Rubber processing.................    (\1\)    (\1\)    (\1\)
Soap and detergent manufacturing..    (\1\)    (\1\)    (\1\)
Steam electric power plants.......    (\1\)    (\1\)
Textile mills (Subpart C--Greige      (\1\)    (\1\)    (\1\)
 Mills are exempt from this table)
Timber products processing........    (\1\)    (\1\)    (\1\)    (\1\)
------------------------------------------------------------------------
\1\ Testing required.
\2\ The pollutants in each fraction are listed in Item V-C.
\3\ Pulp and Paperboard Mills:


------------------------------------------------------------------------
                                               GS/MS fractions
                                    ------------------------------------
                   Subpart \3\                        Base/
                                       VOA    Acid   neutral  Pesticides
------------------------------------------------------------------------
              A....................     \2\   (\1\)      \2\     (\1\)
              B....................     \2\   (\1\)      \2\       \2\
              C....................     \2\   (\1\)      \2\       \2\
              D....................     \2\   (\1\)      \2\       \2\
              E....................   (\1\)   (\1\)      \2\     (\1\)
              F....................   (\1\)   (\1\)      \2\       \2\
              G....................   (\1\)   (\1\)      \2\       \2\
              H....................   (\1\)   (\1\)      \2\       \2\
              I....................   (\1\)   (\1\)      \2\       \2\
              J....................   (\1\)   (\1\)    (\1\)       \2\
              K....................   (\1\)   (\1\)      \2\       \2\
              L....................   (\1\)   (\1\)      \2\       \2\
              M....................   (\1\)   (\1\)      \2\       \2\
              N....................   (\1\)   (\1\)      \2\       \2\
              O....................   (\1\)   (\1\)      \2\       \2\
              P....................   (\1\)   (\1\)      \2\       \2\
              Q....................   (\1\)   (\1\)      \2\     (\1\)
              R....................     \2\   (\1\)      \2\       \2\
              S....................   (\1\)   (\1\)      \2\     (\1\)
              T....................   (\1\)   (\1\)      \2\     (\1\)
              U....................   (\1\)   (\1\)    (\1\)      \2\
------------------------------------------------------------------------
\1\ Must test.
\2\ Do not test unless ``reason to believe'' it is discharged.
\3\ Subparts are defined in 40 CFR Part 430.


[48 FR 14153, Apr. 1, 1983, as amended at 49 FR 38050, Sept. 26, 1984; 
50 FR 6940, Feb. 19, 1985]

[[Page 270]]



    Sec. Appendix E to Part 122--Rainfall Zones of the United States

[GRAPHIC] [TIFF OMITTED] TC01MR92.016

    Not Shown: Alaska (Zone 7); Hawaii (Zone 7); Northern Mariana 
Islands (Zone 7); Guam (Zone 7); American Samoa (Zone 7); Trust 
Territory of the Pacific Islands (Zone 7); Puerto Rico (Zone 3) Virgin 
Islands (Zone 3).
    Source: Methodology for Analysis of Detention Basins for Control of 
Urban Runoff Quality, prepared for U.S. Environmental Protection Agency, 
Office of Water, Nonpoint Source Division, Washington, DC, 1986.

[55 FR 48073, Nov. 16, 1990]



   Sec. Appendix F to Part 122--Incorporated Places With Populations 

   Greater Than 250,000 According to the 1990 Decennial Census by the 

                          Bureau of the Census

------------------------------------------------------------------------
                   State                         Incorporated Place
------------------------------------------------------------------------
Alabama...................................  Birmingham.
Arizona...................................  Phoenix.
                                            Tucson.
California................................  Long Beach.
                                            Los Angeles.
                                            Oakland.
                                            Sacramento.
                                            San Diego.
                                            San Francisco.
                                            San Jose.
Colorado..................................  Denver.
District of Columbia......................
Florida...................................  Jacksonville.
                                            Miami.
                                            Tampa.
Georgia...................................  Atlanta.
Illinois..................................  Chicago.
Indiana...................................  Indianapolis.
Kansas....................................  Wichita.
Kentucky..................................  Louisville.
Louisiana.................................  New Orleans.
Maryland..................................  Baltimore.
Massachusetts.............................  Boston.
Michigan..................................  Detroit.
Minnesota.................................  Minneapolis.
                                            St. Paul.
Missouri..................................  Kansas City.
                                            St. Louis.
Nebraska..................................  Omaha.
New Jersey................................  Newark.
New Mexico................................  Albuquerque.
New York..................................  Buffalo.
                                            Bronx Borough.
                                            Brooklyn Borough.
                                            Manhattan Borough.
                                            Queens Borough.
                                            Staten Island Borough.
North Carolina............................  Charlotte.
Ohio......................................  Cincinnati.
                                            Cleveland.
                                            Columbus.
                                            Toledo.
Oklahoma..................................  Oklahoma City.
                                            Tulsa.
Oregon....................................  Portland.
Pennsylvania..............................  Philadelphia.
                                            Pittsburgh.
Tennessee.................................  Memphis.
                                            Nashville/Davidson.
Texas.....................................  Austin.
                                            Dallas.
                                            El Paso.
                                            Fort Worth.

[[Page 271]]

 
                                            Houston.
                                            San Antonio.
Virginia..................................  Norfolk.
                                            Virginia Beach.
Washington................................  Seattle.
Wisconsin.................................  Milwaukee.
------------------------------------------------------------------------


[64 FR 68847, Dec. 8, 1999, as amended at 67 FR 47152, July 17, 2002]



   Sec. Appendix G to Part 122--Incorporated Places With Populations 

    Greater Than 100,000 But Less Than 250,000 According to the 1990 

              Decennial Census by the Bureau of the Census

------------------------------------------------------------------------
                   State                         Incorporated place
------------------------------------------------------------------------
Alabama...................................  Huntsville.
                                            Mobile.
                                            Montgomery.
Alaska....................................  Anchorage.
Arizona...................................  Mesa.
                                            Tempe.
Arkansas..................................  Little Rock.
California................................  Anaheim.
                                            Bakersfield.
                                            Berkeley.
                                            Chula Vista.
                                            Concord.
                                            El Monte.
                                            Escondido.
                                            Fremont.
                                            Fresno.
                                            Fullerton.
                                            Garden Grove.
                                            Glendale.
                                            Hayward.
                                            Huntington Beach.
                                            Inglewood.
                                            Irvine.
                                            Modesto.
                                            Moreno Valley.
                                            Oceanside.
                                            Ontario.
                                            Orange.
Colorado..................................  Aurora.
                                            Colorado Springs.
                                            Lakewood.
                                            Pueblo.
Connecticut...............................  Bridgeport.
                                            Hartford.
                                            New Haven.
                                            Stamford.
                                            Waterbury.
Florida...................................  Fort Lauderdale.
                                            Hialeah.
                                            Hollywood.
                                            Orlando.
                                            St. Petersburg.
                                            Tallahassee.
Georgia...................................  Columbus.
                                            Macon.
                                            Savannah.
Idaho.....................................  Boise City.
Illinois..................................  Peoria.
                                            Rockford.
Indiana...................................  Evansville.
                                            Fort Wayne.
                                            Gary.
                                            South Bend.
Iowa......................................  Cedar Rapids.
                                            Davenport.
                                            Des Moines.
Kansas....................................  Kansas City.
                                            Topeka.
Kentucky..................................  Lexington-Fayette.
Louisiana.................................  Baton Rouge.
                                            Shreveport.
Massachusetts.............................  Springfield.
                                            Worcester.
Michigan..................................  Ann Arbor.
                                            Flint.
                                            Grand Rapids.
                                            Lansing.
                                            Livonia.
                                            Sterling Heights.
                                            Warren.
Mississippi...............................  Jackson.
Missouri..................................  Independence.
                                            Springfield.
Nebraska..................................  Lincoln.
Nevada....................................  Las Vegas.
                                            Reno.
New Jersey................................  Elizabeth.
                                            Jersey City.
                                            Paterson.
New York..................................  Albany.
                                            Rochester.
                                            Syracuse.
                                            Yonkers.
North Carolina............................  Durham.
                                            Greensboro.
                                            Raleigh.
                                            Winston-Salem.
Ohio......................................  Akron.
                                            Dayton.
                                            Youngstown.
Oregon....................................  Eugene.
Pennsylvania..............................  Allentown.
                                            Erie.
Rhode Island..............................  Providence.
South Carolina............................  Columbia.
Tennessee.................................  Chattanooga.
                                            Knoxville.
Texas.....................................  Abilene.
                                            Amarillo.
                                            Arlington.
                                            Beaumont.
                                            Corpus Christi.
                                            Garland.
                                            Irving.
                                            Laredo.
                                            Lubbock.
                                            Mesquite.
                                            Pasadena.
                                            Plano.
                                            Waco.
Utah......................................  Salt Lake City.
Virginia..................................  Alexandria.
                                            Chesapeake.
                                            Hampton.
                                            Newport News.
                                            Portsmouth.
                                            Richmond.
                                            Roanoke.
Washington................................  Spokane.
                                            Tacoma.
Wisconsin.................................  Madison.
------------------------------------------------------------------------


[64 FR 68848, Dec. 8, 1999]

[[Page 272]]



  Sec. Appendix H to Part 122--Counties With Unincorporated Urbanized 

    Areas With a Population of 250,000 or More According to the 1990 

              Decennial Census by the Bureau of the Census

------------------------------------------------------------------------
                                                          Unincorporated
               State                       County            urbanized
                                                            population
------------------------------------------------------------------------
California........................  Los Angeles.........        886,780
                                    Sacramento..........        594,889
                                    San Diego...........        250,414
Delaware..........................  New Castle..........        296,996
Florida...........................  Dade................      1,014,504
Georgia...........................  DeKalb..............        448,686
Hawaii............................  Honolulu \1\........        114,506
Maryland..........................  Anne Arundel........        344,654
                                    Baltimore...........        627,593
                                    Montgomery..........        599,028
                                    Prince George's.....        494,369
Texas.............................  Harris..............        729,206
Utah..............................  Salt Lake...........        270,989
Virginia..........................  Fairfax.............        760,730
Washington........................  King................        520,468
------------------------------------------------------------------------
\1\ County was previously listed in this appendix; however, population
  dropped to below 250,000 in the 1990 Census.


[64 FR 68848, Dec. 8, 1999]



  Sec. Appendix I to Part 122--Counties With Unincorporated Urbanized 

Areas Greater Than 100,000, But Less Than 250,000 According to the 1990 

              Decennial Census by the Bureau of the Census

------------------------------------------------------------------------
                                                          Unincorporated
               State                       County            urbanized
                                                            population
------------------------------------------------------------------------
Alabama...........................  Jefferson...........         78,608
Arizona...........................  Pima................        162,202
California........................  Alameda.............        115,082
                                    Contra Costa........        131,082
                                    Kern................        128,503
                                    Orange..............        223,081
                                    Riverside...........        166,509
                                    San Bernardino......        162,202
Colorado..........................  Arapahoe............        103,248
Florida...........................  Broward.............        142,329
                                    Escambia............        167,463
                                    Hillsborough........        398,593
                                    Lee.................        102,337
                                    Manatee.............        123,828
                                    Orange..............        378,611
                                    Palm Beach..........        360,553
                                    Pasco...............        148,907
                                    Pinellas............        255,772
                                    Polk................        121,528
                                    Sarasota............        172,600
                                    Seminole............        127,873
Georgia...........................  Clayton.............        133,237
                                    Cobb................        322,595
                                    Fulton..............        127,776
                                    Gwinnett............        237,305
                                    Richmond............        126,476
Kentucky..........................  Jefferson...........        239,430
Louisiana.........................  East Baton Rouge....        102,539
                                    Parish..............        331,307
                                    Jefferson Parish....
Maryland..........................  Howard..............        157,972
North Carolina....................  Cumberland..........        146,827
Nevada............................  Clark...............        327,618
Oregon............................  Multnomah \1\.......         52,923
                                    Washington..........        116,687
South Carolina....................  Greenville..........        147,464
                                    Richland............        130,589
Virginia..........................  Arlington...........        170,936
                                    Chesterfield........        174,488
                                    Henrico.............        201,367
                                    Prince William......        157,131
Washington........................  Pierce..............        258,530
                                    Snohomish...........        157,218
------------------------------------------------------------------------
\1\ County was previously listed in this appendix; however, population
  dropped to below 100,000 in the 1990 Census.


[64 FR 68849, Dec. 8, 1999]



   Sec. Appendix J to Part 122--NPDES Permit Testing Requirements for 
            Publicly Owned Treatment Works (Sec. 122.21(j))

               Table 1A--Effluent Parameters for All POTWS

Biochemical oxygen demand (BOD-5 or CBOD-5)
Fecal coliform
Design Flow Rate
pH
Temperature
Total suspended solids

   Table 1--Effluent Parameters for All POTWS With a Flow Equal to or 
                          Greater Than 0.1 MGD

Ammonia (as N)
Chlorine (total residual, TRC)
Dissolved oxygen
Nitrate/Nitrite
Kjeldahl nitrogen
Oil and grease
Phosphorus
Total dissolved solids

             Table 2--Effluent Parameters for Selected POTWS

Hardness
Metals (total recoverable), cyanide and total phenols
Antimony
Arsenic
Beryllium
Cadmium
Chromium
Copper
Lead
Mercury
Nickel
Selenium
Silver
Thallium

[[Page 273]]

Zinc
Cyanide
Total phenolic compounds
Volatile organic compounds
Acrolein
Acrylonitrile
Benzene
Bromoform
Carbon tetrachloride
Chlorobenzene
Chlorodibromomethane
Chloroethane
2-chloroethylvinyl ether
Chloroform
Dichlorobromomethane
1,1-dichloroethane
1,2-dichloroethane
Trans-1,2-dichloroethylene
1,1-dichloroethylene
1,2-dichloropropane
1,3-dichloropropylene
Ethylbenzene
Methyl bromide
Methyl chloride
Methylene chloride
1,1,2,2-tetrachloroethane
Tetrachloroethylene
Toluene
1,1,1-trichloroethane
1,1,2-trichloroethane
Trichloroethylene
Vinyl chloride
Acid-extractable compounds
P-chloro-m-creso
2-chlorophenol
2,4-dichlorophenol
2,4-dimethylphenol
4,6-dinitro-o-cresol
2,4-dinitrophenol
2-nitrophenol
4-nitrophenol
Pentachlorophenol
Phenol
2,4,6-trichlorophenol
Base-neutral compounds
Acenaphthene
Acenaphthylene
Anthracene
Benzidine
Benzo(a)anthracene
Benzo(a)pyrene
3,4 benzofluoranthene
Benzo(ghi)perylene
Benzo(k)fluoranthene
Bis (2-chloroethoxy) methane
Bis (2-chloroethyl) ether
Bis (2-chloroisopropyl) ether
Bis (2-ethylhexyl) phthalate
4-bromophenyl phenyl ether
Butyl benzyl phthalate
2-chloronaphthalene
4-chlorophenyl phenyl ether
Chrysene
Di-n-butyl phthalate
Di-n-octyl phthalate
Dibenzo(a,h)anthracene
1,2-dichlorobenzene
1,3-dichlorobenzene
1,4-dichlorobenzene
3,3-dichlorobenzidine
Diethyl phthalate
Dimethyl phthalate
2,4-dinitrotoluene
2,6-dinitrotoluene
1,2-diphenylhydrazine
Fluoranthene
Fluorene
Hexachlorobenzene
Hexachlorobutadiene
Hexachlorocyclo-pentadiene
Hexachloroethane
Indeno(1,2,3-cd)pyrene
Isophorone
Naphthalene
Nitrobenzene
N-nitrosodi-n-propylamine
N-nitrosodimethylamine
N-nitrosodiphenylamine
Phenanthrene
Pyrene
1,2,4,-trichlorobenzene

[65 FR 42469, Aug. 4, 2000]



PART 123_STATE PROGRAM REQUIREMENTS--Table of Contents




                            Subpart A_General

Sec.
123.1 Purpose and scope.
123.2 Definitions.
123.3 Coordination with other programs.

                   Subpart B_State Program Submissions

123.21 Elements of a program submission.
123.22 Program description.
123.23 Attorney General's statement.
123.24 Memorandum of Agreement with the Regional Administrator.
123.25 Requirements for permitting.
123.26 Requirements for compliance evaluation programs.
123.27 Requirements for enforcement authority.
123.28 Control of disposal of pollutants into wells.
123.29 Prohibition.
123.30 Judicial review of approval or denial of permits.
123.31 Requirements for eligibility of Indian Tribes.
123.32 Request by an Indian Tribe for a determination of eligibility.
123.33 Procedures for processing an Indian Tribe's application.
123.34 Provisions for Tribal criminal enforcement authority.
123.35 As the NPDES Permitting Authority for regulated small MS4s, what 
          is my role?

[[Page 274]]

123.36 Establishment of technical standards for concentrated animal 
          feeding operations.

           Subpart C_Transfer of Information and Permit Review

123.41 Sharing of information.
123.42 Receipt and use of Federal information.
123.43 Transmission of information to EPA.
123.44 EPA review of and objections to State permits.
123.45 Noncompliance and program reporting by the Director.
123.46 Individual control strategies.

          Subpart D_Program Approval, Revision, and Withdrawal

123.61 Approval process.
123.62 Procedures for revision of State programs.
123.63 Criteria for withdrawal of State programs.
123.64 Procedures for withdrawal of State programs.

    Authority: Clean Water Act, 33 U.S.C. 1251 et seq.

    Source: 48 FR 14178, Apr. 1, 1983, unless otherwise noted.



                            Subpart A_General



Sec. 123.1  Purpose and scope.

    (a) This part specifies the procedures EPA will follow in approving, 
revising, and withdrawing State programs and the requirements State 
programs must meet to be approved by the Administrator under sections 
318, 402, and 405(a) (National Pollutant Discharge Elimination System--
NPDES) of the CWA. This part also specifies the procedures EPA will 
follow in approving, revising, and withdrawing State programs under 
section 405(f) (sludge management programs) of the CWA. The requirements 
that a State sewage sludge management program must meet for approval by 
the Administrator under section 405(f) are set out at 40 CFR part 501.
    (b) These regulations are promulgated under the authority of 
sections 304(i), 101(e), 405, and 518(e) of the CWA, and implement the 
requirements of those sections.
    (c) The Administrator will approve State programs which conform to 
the applicable requirements of this part. A State NPDES program will not 
be approved by the Administrator under section 402 of CWA unless it has 
authority to control the discharges specified in sections 318 and 405(a) 
of CWA. Permit programs under sections 318 and 405(a) will not be 
approved independent of a section 402 program.
    (d)(1) Upon approval of a State program, the Administrator shall 
suspend the issuance of Federal permits for those activities subject to 
the approved State program. After program approval EPA shall retain 
jurisdiction over any permits (including general permits) which it has 
issued unless arrangements have been made with the State in the 
Memorandum of Agreement for the State to assume responsibility for these 
permits. Retention of jurisdiction shall include the processing of any 
permit appeals, modification requests, or variance requests; the conduct 
of inspections, and the receipt and review of self-monitoring reports. 
If any permit appeal, modification request or variance request is not 
finally resolved when the federally issued permit expires, EPA may, with 
the consent of the State, retain jurisdiction until the matter is 
resolved.
    (2) The procedures outlined in the preceding paragraph (d)(1) of 
this section for suspension of permitting authority and transfer of 
existing permits will also apply when EPA approves an Indian Tribe's 
application to operate a State program and a State was the authorized 
permitting authority under Sec. 123.23(b) for activities within the 
scope of the newly approved program. The authorized State will retain 
jurisdiction over its existing permits as described in paragraph (d)(1) 
of this section absent a different arrangement stated in the Memorandum 
of Agreement executed between EPA and the Tribe.
    (e) Upon submission of a complete program, EPA will conduct a public 
hearing, if interest is shown, and determine whether to approve or 
disapprove the program taking into consideration the requirements of 
this part, the CWA and any comments received.
    (f) Any State program approved by the Administrator shall at all 
times be conducted in accordance with the requirements of this part.

[[Page 275]]

    (g)(1) Except as may be authorized pursuant to paragraph (g)(2) of 
this section or excluded by Sec. 122.3, the State program must prohibit 
all point source discharges of pollutants, all discharges into 
aquaculture projects, and all disposal of sewage sludge which results in 
any pollutant from such sludge entering into any waters of the United 
States within the State's jurisdiction except as authorized by a permit 
in effect under the State program or under section 402 of CWA. NPDES 
authority may be shared by two or more State agencies but each agency 
must have Statewide jurisdiction over a class of activities or 
discharges. When more than one agency is responsible for issuing 
permits, each agency must make a submission meeting the requirements of 
Sec. 123.21 before EPA will begin formal review.
    (2) A State may seek approval of a partial or phased program in 
accordance with section 402(n) of the CWA.
    (h) In many cases, States (other than Indian Tribes) will lack 
authority to regulate activities on Indian lands. This lack of authority 
does not impair that State's ability to obtain full program approval in 
accordance with this part, i.e., inability of a State to regulate 
activities on Indian lands does not constitute a partial program. EPA 
will administer the program on Indian lands if a State (or Indian Tribe) 
does not seek or have authority to regulate activities on Indian lands.
    Note: States are advised to contact the United States Department of 
the Interior, Bureau of Indian Affairs, concerning authority over Indian 
lands.
    (i) Nothing in this part precludes a State from:
    (1) Adopting or enforcing requirements which are more stringent or 
more extensive than those required under this part;
    (2) Operating a program with a greater scope of coverage than that 
required under this part. If an approved State program has greater scope 
of coverage than required by Federal law the additional coverage is not 
part of the Federally approved program.
    Note: For example, if a State requires permits for discharges into 
publicly owned treatment works, these permits are not NPDES permits.

[48 FR 14178, Apr. 1, 1983, as amended at 54 FR 256, Jan. 4, 1989; 54 FR 
18784, May 2, 1989; 58 FR 67981, Dec. 22, 1993; 59 FR 64343, Dec. 14, 
1994; 63 FR 45122, Aug. 24, 1998]



Sec. 123.2  Definitions.

    The definitions in part 122 apply to all subparts of this part.

[63 FR 45122, Aug. 24, 1998]



Sec. 123.3  Coordination with other programs.

    Issuance of State permits under this part may be coordinated with 
issuance of RCRA, UIC, NPDES, and 404 permits whether they are 
controlled by the State, EPA, or the Corps of Engineers. See Sec. 
124.4.



                   Subpart B_State Program Submissions



Sec. 123.21  Elements of a program submission.

    (a) Any State that seeks to administer a program under this part 
shall submit to the Administrator at least three copies of a program 
submission. The submission shall contain the following:
    (1) A letter from the Governor of the State (or in the case of an 
Indian Tribe in accordance with Sec. 123.33(b), the Tribal authority 
exercising powers substantially similar to those of a State Governor) 
requesting program approval;
    (2) A complete program description, as required by Sec. 123.22, 
describing how the State intends to carry out its responsibilities under 
this part;
    (3) An Attorney General's statement as required by Sec. 123.23;
    (4) A Memorandum of Agreement with the Regional Administrator as 
required by Sec. 123.24;
    (5) Copies of all applicable State statutes and regulations, 
including those governing State administrative procedures;
    (b)(1) Within 30 days of receipt by EPA of a State program 
submission, EPA will notify the State whether its submission is 
complete. If EPA finds that a State's submission is complete, the 
statutory review period (i.e., the period of time allotted for formal 
EPA review of a proposed State program

[[Page 276]]

under CWA) shall be deemed to have begun on the date of receipt of the 
State's submission. If EPA finds that a State's submission is 
incomplete, the statutory review period shall not begin until all the 
necessary information is received by EPA.
    (2) In the case of an Indian Tribe eligible under Sec. 123.33(b), 
EPA shall take into consideration the contents of the Tribe's request 
submitted under Sec. 123.32, in determining if the program submission 
required by Sec. 123.21(a) is complete.
    (c) If the State's submission is materially changed during the 
statutory review period, the statutory review period shall begin again 
upon receipt of the revised submission.
    (d) The State and EPA may extend the statutory review period by 
agreement.

[48 FR 14178, Apr. 1, 1983; 50 FR 6941, Feb. 19, 1985, as amended at 58 
FR 67981, Dec. 22, 1993; 59 FR 64343, Dec. 14, 1994]



Sec. 123.22  Program description.

    Any State that seeks to administer a program under this part shall 
submit a description of the program it proposes to administer in lieu of 
the Federal program under State law or under an interstate compact. The 
program description shall include:
    (a) A description in narrative form of the scope, structure, 
coverage and processes of the State program.
    (b) A description (including organization charts) of the 
organization and structure of the State agency or agencies which will 
have responsibility for administering the program, including the 
information listed below. If more than one agency is responsible for 
administration of a program, each agency must have statewide 
jurisdiction over a class of activities. The responsibilities of each 
agency must be delineated, their procedures for coordination set forth, 
and an agency may be designated as a ``lead agency'' to facilitate 
communications between EPA and the State agencies having program 
responsibility. If the State proposes to administer a program of greater 
scope of coverage than is required by Federal law, the information 
provided under this paragraph shall indicate the resources dedicated to 
administering the Federally required portion of the program.
    (1) A description of the State agency staff who will carry out the 
State program, including the number, occupations, and general duties of 
the employees. The State need not submit complete job descriptions for 
every employee carrying out the State program.
    (2) An itemization of the estimated costs of establishing and 
administering the program for the first two years after approval, 
including cost of the personnel listed in paragraph (b)(1) of this 
section, cost of administrative support, and cost of technical support.
    (3) An itemization of the sources and amounts of funding, including 
an estimate of Federal grant money, available to the State Director for 
the first two years after approval to meet the costs listed in paragraph 
(b)(2) of this section, identifying any restrictions or limitations upon 
this funding.
    (c) A description of applicable State procedures, including 
permitting procedures and any State administrative or judicial review 
procedures;
    (d) Copies of the permit form(s), application form(s), and reporting 
form(s) the State intends to employ in its program. Forms used by States 
need not be identical to the forms used by EPA but should require the 
same basic information, except that State NPDES programs are required to 
use standard Discharge Monitoring Reports (DMR). The State need not 
provide copies of uniform national forms it intends to use but should 
note its intention to use such forms.
    Note: States are encouraged to use uniform national forms 
established by the Administrator. If uniform national forms are used, 
they may be modified to include the State Agency's name, address, logo, 
and other similar information, as appropriate, in place of EPA's.
    (e) A complete description of the State's compliance tracking and 
enforcement program.
    (f) In the case of Indian Tribes eligible under Sec. 123.33(b), if 
a State has been authorized by EPA to issue permits on the Federal 
Indian reservation in accordance with Sec. 123.23(b), a description of 
how responsibility for pending permit applications, existing permits, 
and supporting files will be transferred from the State to the eligible 
Indian

[[Page 277]]

Tribe. To the maximum extent practicable, this should include a 
Memorandum of Agreement negotiated between the State and the Indian 
Tribe addressing the arrangements for such transfer.

[48 FR 14178, Apr. 1, 1983; 50 FR 6941, Feb. 19, 1985, as amended at 54 
FR 18784, May 2, 1989; 58 FR 67981, Dec. 22, 1993; 59 FR 64343, Dec. 14, 
1994; 63 FR 45122, Aug. 24, 1998]



Sec. 123.23  Attorney General's statement.

    (a) Any State that seeks to administer a program under this part 
shall submit a statement from the State Attorney General (or the 
attorney for those State or interstate agencies which have independent 
legal counsel) that the laws of the State, or an interstate compact, 
provide adequate authority to carry out the program described under 
Sec. 123.22 and to meet the requirements of this part. This statement 
shall include citations to the specific statutes, administrative 
regulations, and, where appropriate, judicial decisions which 
demonstrate adequate authority. State statutes and regulations cited by 
the State Attorney General or independent legal counsel shall be in the 
form of lawfully adopted State statutes and regulations at the time the 
statement is signed and shall be fully effective by the time the program 
is approved. To qualify as ``independent legal counsel'' the attorney 
signing the statement required by this section must have full authority 
to independently represent the State agency in court on all matters 
pertaining to the State program.
    Note: EPA will supply States with an Attorney General's statement 
format on request.
    (b) If a State (which is not an Indian Tribe) seeks authority over 
activities on Indian lands, the statement shall contain an appropriate 
analysis of the State's authority.
    (c) The Attorney General's statement shall certify that the State 
has adequate legal authority to issue and enforce general permits if the 
State seeks to implement the general permit program under Sec. 122.28.

[48 FR 14178, Apr. 1, 1983, as amended at 58 FR 67981, Dec. 22, 1993]



Sec. 123.24  Memorandum of Agreement with the Regional Administrator.

    (a) Any State that seeks to administer a program under this part 
shall submit a Memorandum of Agreement. The Memorandum of Agreement 
shall be executed by the State Director and the Regional Administrator 
and shall become effective when approved by the Administrator. In 
addition to meeting the requirements of paragraph (b) of this section, 
the Memorandum of Agreement may include other terms, conditions, or 
agreements consistent with this part and relevant to the administration 
and enforcement of the State's regulatory program. The Administrator 
shall not approve any Memorandum of Agreement which contains provisions 
which restrict EPA's statutory oversight responsibility.
    (b) The Memorandum of Agreement shall include the following:
    (1)(i) Provisions for the prompt transfer from EPA to the State of 
pending permit applications and any other information relevant to 
program operation not already in the possession of the State Director 
(e.g., support files for permit issuance, compliance reports, etc.). If 
existing permits are transferred from EPA to the State for 
administration, the Memorandum of Agreement shall contain provisions 
specifying a procedure for transferring the administration of these 
permits. If a State lacks the authority to directly administer permits 
issued by the Federal government, a procedure may be established to 
transfer responsibility for these permits.
    Note: For example, EPA and the State and the permittee could agree 
that the State would issue a permit(s) identical to the outstanding 
Federal permit which would simultaneously be terminated.
    (ii) Where a State has been authorized by EPA to issue permits in 
accordance with Sec. 123.23(b) on the Federal Indian reservation of the 
Indian Tribe seeking program approval, provisions describing how the 
transfer of pending permit applications, permits, and any other 
information relevant to the program operation not already in the 
possession of the Indian Tribe (support files for permit issuance, 
compliance reports, etc.) will be accomplished.

[[Page 278]]

    (2) Provisions specifying classes and categories of permit 
applications, draft permits, and proposed permits that the State will 
send to the Regional Administrator for review, comment and, where 
applicable, objection.
    (3) Provisions specifying the frequency and content of reports, 
documents and other information which the State is required to submit to 
EPA. The State shall allow EPA to routinely review State records, 
reports, and files relevant to the administration and enforcement of the 
approved program. State reports may be combined with grant reports where 
appropriate. These procedures shall implement the requirements of Sec. 
123.43.
    (4) Provisions on the State's compliance monitoring and enforcement 
program, including:
    (i) Provisions for coordination of compliance monitoring activities 
by the State and by EPA. These may specify the basis on which the 
Regional Administrator will select facilities or activities within the 
State for EPA inspection. The Regional Administrator will normally 
notify the State at least 7 days before any such inspection; and
    (ii) Procedures to assure coordination of enforcement activities.
    (5) When appropriate, provisions for joint processing of permits by 
the State and EPA for facilities or activities which require permits 
from both EPA and the State under different programs. (See Sec. 124.4.)
    Note: To promote efficiency and to avoid duplication and 
inconsistency, States are encouraged to enter into joint processing 
agreements with EPA for permit issuance. Likewise, States are encouraged 
(but not required) to consider steps to coordinate or consolidate their 
own permit programs and activities.
    (6) Provisions for modification of the Memorandum of Agreement in 
accordance with this part.
    (c) The Memorandum of Agreement, the annual program grant and the 
State/EPA Agreement should be consistent. If the State/EPA Agreement 
indicates that a change is needed in the Memorandum of Agreement, the 
Memorandum of Agreement may be amended through the procedures set forth 
in this part. The State/EPA Agreement may not override the Memorandum of 
Agreement.
    Note: Detailed program priorities and specific arrangements for EPA 
support of the State program will change and are therefore more 
appropriately negotiated in the context of annual agreements rather than 
in the MOA. However, it may still be appropriate to specify in the MOA 
the basis for such detailed agreements, e.g., a provision in the MOA 
specifying that EPA will select facilities in the State for inspection 
annually as part of the State/EPA agreement.
    (d) The Memorandum of Agreement shall also specify the extent to 
which EPA will waive its right to review, object to, or comment upon 
State-issued permits under section 402(d)(3), (e) or (f) of CWA. While 
the Regional Administrator and the State may agree to waive EPA review 
of certain ``classes or categories'' of permits, no waiver of review may 
be granted for the following classes or categories:
    (1) Discharges into the territorial sea;
    (2) Discharges which may affect the waters of a State other than the 
one in which the discharge originates;
    (3) Discharges proposed to be regulated by general permits (see 
Sec. 122.28);
    (4) Discharges from publicly owned treatment works with a daily 
average discharge exceeding 1 million gallons per day;
    (5) Discharges of uncontaminated cooling water with a daily average 
discharge exceeding 500 million gallons per day;
    (6) Discharges from any major discharger or from any discharger 
within any of the 21 industrial categories listed in appendix A to part 
122;
    (7) Discharges from other sources with a daily average discharge 
exceeding 0.5 (one-half) million gallons per day, except that EPA review 
of permits for discharges of non-process wastewater may be waived 
regardless of flow.
    (e) Whenever a waiver is granted under paragraph (d) of this 
section, the Memorandum of Agreement shall contain:
    (1) A statement that the Regional Administrator retains the right to 
terminate the waiver as to future permit actions, in whole or in part, 
at any time by sending the State Director written notice of termination; 
and

[[Page 279]]

    (2) A statement that the State shall supply EPA with copies of final 
permits.

[48 FR 14178, Apr. 1, 1983; 50 FR 6941, Feb. 19, 1985, as amended at 54 
FR 18784, May 2, 1989; 58 FR 67981, Dec. 22, 1993; 63 FR 45122, Aug. 24, 
1998]



Sec. 123.25  Requirements for permitting.

    (a) All State Programs under this part must have legal authority to 
implement each of the following provisions and must be administered in 
conformance with each, except that States are not precluded from 
omitting or modifying any provisions to impose more stringent 
requirements:
    (1) Sec. 122.4--(Prohibitions):
    (2) Sec. 122.5(a) and (b)--(Effect of permit);
    (3) Sec. 122.7(b) and (c)--(Confidential information);
    (4) Sec. 122.21 (a)-(b), (c)(2), (e)-(k), (m)-(p), (q), and (r)--
(Application for a permit);
    (5) Sec. 122.22--(Signatories);
    (6) Sec. 122.23--(Concentrated animal feeding operations);
    (7) Sec. 122.24--(Concentrated aquatic animal production 
facilities);
    (8) Sec. 122.25--(Aquaculture projects);
    (9) Sec. 122.26--(Storm water discharges);
    (10) Sec. 122.27--(Silviculture);
    (11) Sec. 122.28--(General permits), Provided that States which do 
not seek to implement the general permit program under Sec. 122.28 need 
not do so.
    (12) Section 122.41 (a)(1) and (b) through (n)--(Applicable permit 
conditions) (Indian Tribes can satisfy enforcement authority 
requirements under Sec. 123.34);
    (13) Sec. 122.42--(Conditions applicable to specified categories of 
permits);
    (14) Sec. 122.43--(Establishing permit conditions);
    (15) Sec. 122.44--(Establishing NPDES permit conditions);
    (16) Sec. 122.45--(Calculating permit conditions);
    (17) Sec. 122.46--(Duration);
    (18) Sec. 122.47(a)--(Schedules of compliance);
    (19) Sec. 122.48--(Monitoring requirements);
    (20) Sec. 122.50--(Disposal into wells);
    (21) Sec. 122.61--(Permit transfer);
    (22) Sec. 122.62--(Permit modification);
    (23) Sec. 122.64--(Permit termination);
    (24) Sec. 124.3(a)--(Application for a permit);
    (25) Sec. 124.5 (a), (c), (d), and (f)--(Modification of permits);
    (26) Sec. 124.6 (a), (c), (d), and (e)--(Draft permit);
    (27) Sec. 124.8--(Fact sheets);
    (28) Sec. 124.10 (a)(1)(ii), (a)(1)(iii), (a)(1)(v), (b), (c), (d), 
and (e)--(Public notice);
    (29) Sec. 124.11--(Public comments and requests for hearings);
    (30) Sec. 124.12(a)--(Public hearings); and
    (31) Sec. 124.17 (a) and (c)--(Response to comments);
    (32) Sec. 124.56--(Fact sheets);
    (33) Sec. 124.57(a)--(Public notice);
    (34) Sec. 124.59--(Comments from government agencies);
    (35) Sec. 124.62--(Decision on variances);
    (36) Subparts A, B, D, H, I, J, and N of part 125 of this chapter;
    (37) 40 CFR parts 129, 133, and subchapter N;
    (38) For a Great Lakes State or Tribe (as defined in 40 CFR 132.2), 
40 CFR part 132 (NPDES permitting implementation procedures only);
    (39) Sec. 122.30 (What are the objectives of the storm water 
regulations for small MS4s?);
    (40) Sec. 122.31 (For Indian Tribes only) (As a Tribe, what is my 
role under the NPDES storm water program?);
    (41) Sec. 122.32 (As an operator of a small MS4, am I regulated 
under the NPDES storm water program?);
    (42) Sec. 122.33 (If I am an operator of a regulated small MS4, how 
do I apply for an NPDES permit? When do I have to apply?);
    (43) Sec. 122.34 (As an operator of a regulated small MS4, what 
will my NPDES MS4 storm water permit require?);
    (44) Sec. 122.35 (As an operator of a regulated small MS4, may I 
share the responsibility to implement the minimum control measures with 
other entities?);
    (45) Sec. 122.36 (As an operator of a regulated small MS4, what 
happens if I don't comply with the application or permit requirements in 
Sec. Sec. 122.33 through 122.35?); and
    (46) For states that wish to receive electronic documents, 40 CFR 
Part 3--(Electronic reporting).
    Note: Except for paragraph (a)(46) of this section, states need not 
implement provisions identical to the above listed provisions.

[[Page 280]]

Implemented provisions must, however, establish requirements at least as 
stringent as the corresponding listed provisions. While States may 
impose more stringent requirements, they may not make one requirement 
more lenient as a tradeoff for making another requirement more 
stringent; for example, by requiring that public hearings be held prior 
to issuing any permit while reducing the amount of advance notice of 
such a hearing.
    State programs may, if they have adequate legal authority, implement 
any of the provisions of parts 122 and 124. See, for example, Sec. 
122.5(d) (continuation of permits) and Sec. 124.4 (consolidation of 
permit processing).
    For example, a State may impose more stringent requirements in an 
NPDES program by omitting the upset provision of Sec. 122.41 or by 
requiring more prompt notice of an upset.
    (b) State NPDES programs shall have an approved continuing planning 
process under 40 CFR 130.5 and shall assure that the approved planning 
process is at all times consistent with the CWA.
    (c) State NPDES programs shall ensure that any board or body which 
approves all or portions of permits shall not include as a member any 
person who receives, or has during the previous 2 years received, a 
significant portion of income directly or indirectly from permit holders 
or applicants for a permit.
    (1) For the purposes of this paragraph:
    (i) Board or body includes any individual, including the Director, 
who has or shares authority to approve all or portions of permits either 
in the first instance, as modified or reissued, or on appeal.
    (ii) Significant portion of income means 10 percent or more of gross 
personal income for a calendar year, except that it means 50 percent or 
more of gross personal income for a calendar year if the recipient is 
over 60 years of age and is receiving that portion under retirement, 
pension, or similar arrangement.
    (iii) Permit holders or applicants for a permit does not include any 
department or agency of a State government, such as a Department of 
Parks or a Department of Fish and Wildlife.
    (iv) Income includes retirement benefits, consultant fees, and stock 
dividends.
    (2) For the purposes of paragraph (c) of this section, income is not 
received ``directly or indirectly from permit holders or applicants for 
a permit'' when it is derived from mutual fund payments, or from other 
diversified investments for which the recipient does not know the 
identity of the primary sources of income.

[48 FR 14178, Apr. 1, 1983]

    Editorial Note: For Federal Register citations affecting Sec. 
123.25, see the List of CFR Sections Affected, which appears in the 
Finding Aids section of the printed volume and on GPO Access.



Sec. 123.26  Requirements for compliance evaluation programs.

    (a) State programs shall have procedures for receipt, evaluation, 
retention and investigation for possible enforcement of all notices and 
reports required of permittees and other regulated persons (and for 
investigation for possible enforcement of failure to submit these 
notices and reports).
    (b) State programs shall have inspection and surveillance procedures 
to determine, independent of information supplied by regulated persons, 
compliance or noncompliance with applicable program requirements. The 
State shall maintain:
    (1) A program which is capable of making comprehensive surveys of 
all facilities and activities subject to the State Director's authority 
to identify persons subject to regulation who have failed to comply with 
permit application or other program requirements. Any compilation, index 
or inventory of such facilities and activities shall be made available 
to the Regional Administrator upon request;
    (2) A program for periodic inspections of the facilities and 
activities subject to regulation. These inspections shall be conducted 
in a manner designed to:
    (i) Determine compliance or noncompliance with issued permit 
conditions and other program requirements;
    (ii) Verify the accuracy of information submitted by permittees and 
other regulated persons in reporting forms and other forms supplying 
monitoring data; and
    (iii) Verify the adequacy of sampling, monitoring, and other methods 
used by permittees and other regulated persons to develop that 
information;
    (3) A program for investigating information obtained regarding 
violations

[[Page 281]]

of applicable program and permit requirements; and
    (4) Procedures for receiving and ensuring proper consideration of 
information submitted by the Public about violations. Public effort in 
reporting violations shall be encouraged, and the State Director shall 
make available information on reporting procedures.
    (c) The State Director and State officers engaged in compliance 
evaluation shall have authority to enter any site or premises subject to 
regulation or in which records relevant to program operation are kept in 
order to copy any records, inspect, monitor or otherwise investigate 
compliance with the State program including compliance with permit 
conditions and other program requirements. States whose law requires a 
search warrant before entry conform with this requirement.
    (d) Investigatory inspections shall be conducted, samples shall be 
taken and other information shall be gathered in a manner (e.g., using 
proper ``chain of custody'' procedures) that will produce evidence 
admissible in an enforcement proceeding or in court.
    (e) State NPDES compliance evaluation programs shall have procedures 
and ability for:
    (1) Maintaining a comprehensive inventory of all sources covered by 
NPDES permits and a schedule of reports required to be submitted by 
permittees to the State agency;
    (2) Initial screening (i.e., pre-enforcement evaluation) of all 
permit or grant-related compliance information to identify violations 
and to establish priorities for further substantive technical 
evaluation;
    (3) When warranted, conducting a substantive technical evaluation 
following the initial screening of all permit or grant-related 
compliance information to determine the appropriate agency response;
    (4) Maintaining a management information system which supports the 
compliance evaluation activities of this part; and
    (5) Inspecting the facilities of all major dischargers at least 
annually.

[48 FR 14178, Apr. 1, 1983, as amended at 54 FR 18785, May 2, 1989; 63 
FR 45122, Aug. 24, 1998]



Sec. 123.27  Requirements for enforcement authority.

    (a) Any State agency administering a program shall have available 
the following remedies for violations of State program requirements:
    (1) To restrain immediately and effectively any person by order or 
by suit in State court from engaging in any unauthorized activity which 
is endangering or causing damage to public health or the environment;
    Note: This paragraph (a)(1) requires that States have a mechanism 
(e.g., an administrative cease and desist order or the ability to seek a 
temporary restraining order) to stop any unauthorized activity 
endangering public health or the environment.
    (2) To sue in courts of competent jurisdiction to enjoin any 
threatened or continuing violation of any program requirement, including 
permit conditions, without the necessity of a prior revocation of the 
permit;
    (3) To assess or sue to recover in court civil penalties and to seek 
criminal remedies, including fines, as follows:
    (i) Civil penalties shall be recoverable for the violation of any 
NPDES permit condition; any NPDES filing requirement; any duty to allow 
or carry out inspection, entry or monitoring activities; or, any 
regulation or orders issued by the State Director. These penalties shall 
be assessable in at least the amount of $5,000 a day for each violation.
    (ii) Criminal fines shall be recoverable against any person who 
willfully or negligently violates any applicable standards or 
limitations; any NPDES permit condition; or any NPDES filing 
requirement. These fines shall be assessable in at least the amount of 
$10,000 a day for each violation.
    Note: States which provide the criminal remedies based on ``criminal 
negligence,'' ``gross negligence'' or strict liability satisfy the 
requirement of paragraph (a)(3)(ii) of this section.
    (iii) Criminal fines shall be recoverable against any person who 
knowingly makes any false statement, representation or certification in 
any NPDES form, in any notice or report required by an NPDES permit, or 
who knowingly renders inaccurate any monitoring device or method 
required to be maintained by the Director. These

[[Page 282]]

fines shall be recoverable in at least the amount of $5,000 for each 
instance of violation.
    Note: In many States the State Director will be represented in State 
courts by the State Attorney General or other appropriate legal officer. 
Although the State Director need not appear in court actions he or she 
should have power to request that any of the above actions be brought.
    (b)(1) The maximum civil penalty or criminal fine (as provided in 
paragraph (a)(3) of this section) shall be assessable for each instance 
of violation and, if the violation is continuous, shall be assessable up 
to the maximum amount for each day of violation.
    (2) The burden of proof and degree of knowledge or intent required 
under State law for establishing violations under paragraph (a)(3) of 
this section, shall be no greater than the burden of proof or degree of 
knowledge or intent EPA must provide when it brings an action under the 
appropriate Act;
    Note: For example, this requirement is not met if State law includes 
mental state as an element of proof for civil violations.
    (c) A civil penalty assessed, sought, or agreed upon by the State 
Director under paragraph (a)(3) of this section shall be appropriate to 
the violation.
    Note: To the extent that State judgments or settlements provide 
penalties in amounts which EPA believes to be substantially inadequate 
in comparison to the amounts which EPA would require under similar 
facts, EPA, when authorized by the applicable statute, may commence 
separate actions for penalties.
    Procedures for assessment by the State of the cost of 
investigations, inspections, or monitoring surveys which lead to the 
establishment of violations;
    In addition to the requirements of this paragraph, the State may 
have other enforcement remedies. The following enforcement options, 
while not mandatory, are highly recommended:
    Procedures which enable the State to assess or to sue any persons 
responsible for unauthorized activities for any expenses incurred by the 
State in removing, correcting, or terminating any adverse effects upon 
human health and the environment resulting from the unauthorized 
activity, whether or not accidental;
    Procedures which enable the State to sue for compensation for any 
loss or destruction of wildlife, fish or aquatic life, or their habitat, 
and for any other damages caused by unauthorized activity, either to the 
State or to any residents of the State who are directly aggrieved by the 
unauthorized activity, or both; and
    Procedures for the administrative assessment of penalties by the 
Director.
    (d) Any State administering a program shall provide for public 
participation in the State enforcement process by providing either:
    (1) Authority which allows intervention as of right in any civil or 
administrative action to obtain remedies specified in paragraphs (a)(1), 
(2) or (3) of this section by any citizen having an interest which is or 
may be adversely affected; or
    (2) Assurance that the State agency or enforcement authority will:
    (i) Investigate and provide written responses to all citizen 
complaints submitted pursuant to the procedures specified in Sec. 
123.26(b)(4);
    (ii) Not oppose intervention by any citizen when permissive 
intervention may be authorized by statute, rule, or regulation; and
    (iii) Publish notice of and provide at least 30 days for public 
comment on any proposed settlement of a State enforcement action.
    (e) Indian Tribes that cannot satisfy the criminal enforcement 
authority requirements of this section may still receive program 
approval if they meet the requirement for enforcement authority 
established under Sec. 123.34.

(Clean Water Act (33 U.S.C. 1251 et seq.), Safe Drinking Water Act (42 
U.S.C. 300f et seq.), Clean Air Act (42 U.S.C. 7401 et seq.), Resource 
Conservation and Recovery Act (42 U.S.C. 6901 et seq.))

[48 FR 14178, Apr. 1, 1983, as amended at 48 FR 39620, Sept. 1, 1983; 50 
FR 6941, Feb. 19, 1985; 54 FR 258, Jan. 4, 1989; 58 FR 67981, Dec. 22, 
1993]



Sec. 123.28  Control of disposal of pollutants into wells.

    State law must provide authority to issue permits to control the 
disposal of pollutants into wells. Such authority shall enable the State 
to protect the public health and welfare and to prevent the pollution of 
ground and surface waters by prohibiting well discharges or by issuing 
permits for such discharges with appropriate permit terms and 
conditions. A program approved under section 1422 of SDWA satisfies the 
requirements of this section.

[[Page 283]]

    Note: States which are authorized to administer the NPDES permit 
program under section 402 of CWA are encouraged to rely on existing 
statutory authority, to the extent possible, in developing a State UIC 
program under section 1422 of SDWA. Section 402(b)(1)(D) of CWA requires 
that NPDES States have the authority ``to issue permits which * * * 
control the disposal of pollutants into wells.'' In many instances, 
therefore, NPDES States will have existing statutory authority to 
regulate well disposal which satisfies the requirements of the UIC 
program. Note, however, that CWA excludes certain types of well 
injections from the definition of ``pollutant.'' If the State's 
statutory authority contains a similar exclusion it may need to be 
modified to qualify for UIC program approval.



Sec. 123.29  Prohibition.

    State permit programs shall provide that no permit shall be issued 
when the Regional Administrator has objected in writing under Sec. 
123.44.



Sec. 123.30  Judicial review of approval or denial of permits.

    All States that administer or seek to administer a program under 
this part shall provide an opportunity for judicial review in State 
Court of the final approval or denial of permits by the State that is 
sufficient to provide for, encourage, and assist public participation in 
the permitting process. A State will meet this standard if State law 
allows an opportunity for judicial review that is the same as that 
available to obtain judicial review in federal court of a federally-
issued NPDES permit (see Sec. 509 of the Clean Water Act). A State will 
not meet this standard if it narrowly restricts the class of persons who 
may challenge the approval or denial of permits (for example, if only 
the permittee can obtain judicial review, if persons must demonstrate 
injury to a pecuniary interest in order to obtain judicial review, or if 
persons must have a property interest in close proximity to a discharge 
or surface waters in order to obtain judicial review.) This requirement 
does not apply to Indian Tribes.

[61 FR 20980, May 8, 1996]



Sec. 123.31  Requirements for eligibility of Indian Tribes.

    (a) Consistent with section 518(e) of the CWA, 33 U.S.C. 1377(e), 
the Regional Administrator will treat an Indian Tribe as eligible to 
apply for NPDES program authority if it meets the following criteria:
    (1) The Indian Tribe is recognized by the Secretary of the Interior.
    (2) The Indian Tribe has a governing body carrying out substantial 
governmental duties and powers.
    (3) The functions to be exercised by the Indian Tribe pertain to the 
management and protection of water resources which are held by an Indian 
Tribe, held by the United States in trust for the Indians, held by a 
member of an Indian Tribe if such property interest is subject to a 
trust restriction on alienation, or otherwise within the borders of an 
Indian reservation.
    (4) The Indian Tribe is reasonably expected to be capable, in the 
Regional Administrator's judgment, of carrying out the functions to be 
exercised, in a manner consistent with the terms and purposes of the Act 
and applicable regulations, of an effective NPDES permit program.
    (b) An Indian Tribe which the Regional Administrator determines 
meets the criteria described in paragraph (a) of this section must also 
satisfy the State program requirements described in this part for 
assumption of the State program.

[58 FR 67981, Dec. 22, 1993, as amended at 59 FR 64343, Dec. 14, 1994]



Sec. 123.32  Request by an Indian Tribe for a determination of eligibility.

    An Indian Tribe may apply to the Regional Administrator for a 
determination that it qualifies pursuant to section 518 of the Act for 
purposes of seeking NPDES permit program approval. The application shall 
be concise and describe how the Indian Tribe will meet each of the 
requirements of Sec. 123.31. The application shall include the 
following information:
    (a) A statement that the Tribe is recognized by the Secretary of the 
Interior;
    (b) A descriptive statement demonstrating that the Tribal governing 
body is currently carrying out substantial governmental duties and 
powers over a defined area. This statement should:

[[Page 284]]

    (1) Describe the form of the Tribal government;
    (2) Describe the types of governmental functions currently performed 
by the Tribal governing body, such as, but not limited to, the exercise 
of police powers affecting (or relating to) the health, safety, and 
welfare of the affected population; taxation; and the exercise of the 
power of eminent domain; and
    (3) Identify the source of the Tribal government's authority to 
carry out the governmental functions currently being performed.
    (c) A map or legal description of the area over which the Indian 
Tribe asserts authority under section 518(e)(2) of the Act; a statement 
by the Tribal Attorney General (or equivalent official authorized to 
represent the Tribe in all legal matters in court pertaining to the 
program for which it seeks approval) which describes the basis for the 
Tribe's assertion (including the nature or subject matter of the 
asserted regulatory authority); copies of those documents such as Tribal 
constitutions, by-laws, charters, executive orders, codes, ordinances, 
and/or resolutions which support the Tribe believes are relevant to its 
assertion under section 518(e)(2) of the Act; and a description of the 
location of the surface waters for which the Tribe proposes to establish 
an NPDES permit program.
    (d) A narrative statement describing the capability of the Indian 
Tribe to administer an effective, environmentally sound NPDES permit 
program. The statement should include:
    (1) A description of the Indian Tribe's previous management 
experience which may include the administration of programs and service 
authorized by the Indian Self-Determination and Education Assistance Act 
(25 U.S.C. 450 et seq.), the Indian Mineral Development Act (25 U.S.C. 
2101 et seq.), or the Indian Sanitation Facility Construction Activity 
Act (42 U.S.C. 2004a);
    (2) A list of existing environmental or public health programs 
administered by the Tribal governing body, and a copy of related Tribal 
laws, regulations, and policies;
    (3) A description of the entity (or entities) which exercise the 
executive, legislative, and judicial functions of the Tribal government;
    (4) A description of the existing, or proposed, agency of the Indian 
Tribe which will assume primary responsibility for establishing and 
administering an NPDES permit program (including a description of the 
relationship between the existing or proposed agency and its regulated 
entities);
    (5) A description of the technical and administrative abilities of 
the staff to administer and manage an effective, environmentally sound 
NPDES permit program or a plan which proposes how the Tribe will acquire 
additional administrative and technical expertise. The plan must address 
how the Tribe will obtain the funds to acquire the administrative and 
technical expertise.
    (e) The Regional Administrator may, at his or her discretion, 
request further documentation necessary to support a Tribe's 
eligibility.
    (f) If the Administrator or his or her delegatee has previously 
determined that a Tribe has met the prerequisites that make it eligible 
to assume a role similar to that of a state as provided by statute under 
the Safe Drinking Water Act, the Clean Water Act, or the Clean Air Act, 
then that Tribe need provide only that information unique to the NPDES 
program which is requested by the Regional Administrator.

[58 FR 67982, Dec. 22, 1993, as amended at 59 FR 64343, Dec. 14, 1994]



Sec. 123.33  Procedures for processing an Indian Tribe's application.

    (a) The Regional Administrator shall process an application of an 
Indian Tribe submitted pursuant to Sec. 123.32 in a timely manner. He 
shall promptly notify the Indian Tribe of receipt of the application.
    (b) The Regional Administrator shall follow the procedures described 
in 40 CFR part 123, subpart D in processing a Tribe's request to assume 
the NPDES program.

[58 FR 67982, Dec. 22, 1993, as amended at 59 FR 64343, Dec. 14, 1994]

[[Page 285]]



Sec. 123.34  Provisions for Tribal criminal enforcement authority.

    To the extent that an Indian Tribe is precluded from asserting 
criminal enforcement authority as required under Sec. 123.27, the 
Federal Government will exercise primary criminal enforcement 
responsibility. The Tribe, with the EPA Region, shall develop a 
procedure by which the Tribal agency will refer potential criminal 
violations to the Regional Administrator, as agreed to by the parties, 
in an appropriate and timely manner. This procedure shall encompass all 
circumstances in which the Tribe is incapable of exercising the 
enforcement requirements of Sec. 123.27. This agreement shall be 
incorporated into a joint or separate Memorandum of Agreement with the 
EPA Region, as appropriate.

[58 FR 67983, Dec. 22, 1993]



Sec. 123.35  As the NPDES Permitting Authority for regulated small MS4s, what 

is my role?

    (a) You must comply with the requirements for all NPDES permitting 
authorities under Parts 122, 123, 124, and 125 of this chapter. (This 
section is meant only to supplement those requirements and discuss 
specific issues related to the small MS4 storm water program.)
    (b) You must develop a process, as well as criteria, to designate 
small MS4s other than those described in Sec. 122.32(a)(1) of this 
chapter, as regulated small MS4s to be covered under the NPDES storm 
water discharge control program. This process must include the authority 
to designate a small MS4 waived under paragraph (d) of this section if 
circumstances change. EPA may make designations under this section if a 
State or Tribe fails to comply with the requirements listed in this 
paragraph. In making designations of small MS4s, you must:
    (1)(i) Develop criteria to evaluate whether a storm water discharge 
results in or has the potential to result in exceedances of water 
quality standards, including impairment of designated uses, or other 
significant water quality impacts, including habitat and biological 
impacts.
    (ii) Guidance: For determining other significant water quality 
impacts, EPA recommends a balanced consideration of the following 
designation criteria on a watershed or other local basis: discharge to 
sensitive waters, high growth or growth potential, high population 
density, contiguity to an urbanized area, significant contributor of 
pollutants to waters of the United States, and ineffective protection of 
water quality by other programs;
    (2) Apply such criteria, at a minimum, to any small MS4 located 
outside of an urbanized area serving a jurisdiction with a population 
density of at least 1,000 people per square mile and a population of at 
least 10,000;
    (3) Designate any small MS4 that meets your criteria by December 9, 
2002. You may wait until December 8, 2004 to apply the designation 
criteria on a watershed basis if you have developed a comprehensive 
watershed plan. You may apply these criteria to make additional 
designations at any time, as appropriate; and
    (4) Designate any small MS4 that contributes substantially to the 
pollutant loadings of a physically interconnected municipal separate 
storm sewer that is regulated by the NPDES storm water program.
    (c) You must make a final determination within 180 days from receipt 
of a petition under Sec. 122.26(f) of this chapter (or analogous State 
or Tribal law). If you do not do so within that time period, EPA may 
make a determination on the petition.
    (d) You must issue permits consistent with Sec. Sec. 122.32 through 
122.35 of this chapter to all regulated small MS4s. You may waive or 
phase in the requirements otherwise applicable to regulated small MS4s, 
as defined in Sec. 122.32(a)(1) of this chapter, under the following 
circumstances:
    (1) You may waive permit coverage for each small MS4s in 
jurisdictions with a population under 1,000 within the urbanized area 
where all of the following criteria have been met:
    (i) Its discharges are not contributing substantially to the 
pollutant loadings of a physically interconnected regulated MS4 (see 
paragraph (b)(4) of this section); and
    (ii) If the small MS4 discharges any pollutant(s) that have been 
identified as a cause of impairment of any water

[[Page 286]]

body to which it discharges, storm water controls are not needed based 
on wasteload allocations that are part of an EPA approved or established 
``total maximum daily load'' (TMDL) that address the pollutant(s) of 
concern.
    (2) You may waive permit coverage for each small MS4 in 
jurisdictions with a population under 10,000 where all of the following 
criteria have been met:
    (i) You have evaluated all waters of the U.S., including small 
streams, tributaries, lakes, and ponds, that receive a discharge from 
the MS4 eligible for such a waiver.
    (ii) For all such waters, you have determined that storm water 
controls are not needed based on wasteload allocations that are part of 
an EPA approved or established TMDL that addresses the pollutant(s) of 
concern or, if a TMDL has not been developed or approved, an equivalent 
analysis that determines sources and allocations for the pollutant(s) of 
concern.
    (iii) For the purpose of paragraph (d)(2)(ii) of this section, the 
pollutant(s) of concern include biochemical oxygen demand (BOD), 
sediment or a parameter that addresses sediment (such as total suspended 
solids, turbidity or siltation), pathogens, oil and grease, and any 
pollutant that has been identified as a cause of impairment of any water 
body that will receive a discharge from the MS4.
    (iv) You have determined that current and future discharges from the 
MS4 do not have the potential to result in exceedances of water quality 
standards, including impairment of designated uses, or other significant 
water quality impacts, including habitat and biological impacts.
    (v) Guidance: To help determine other significant water quality 
impacts, EPA recommends a balanced consideration of the following 
criteria on a watershed or other local basis: discharge to sensitive 
waters, high growth or growth potential, high population or commercial 
density, significant contributor of pollutants to waters of the United 
States, and ineffective protection of water quality by other programs.
    (3) You may phase in permit coverage for small MS4s serving 
jurisdictions with a population under 10,000 on a schedule consistent 
with a State watershed permitting approach. Under this approach, you 
must develop and implement a schedule to phase in permit coverage for 
approximately 20 percent annually of all small MS4s that qualify for 
such phased-in coverage. Under this option, all regulated small MS4s are 
required to have coverage under an NPDES permit by no later than March 
8, 2007. Your schedule for phasing in permit coverage for small MS4s 
must be approved by the Regional Administrator no later than December 
10, 2001.
    (4) If you choose to phase in permit coverage for small MS4s in 
jurisdictions with a population under 10,000, in accordance with 
paragraph (d)(3) of this section, you may also provide waivers in 
accordance with paragraphs (d)(1) and (d)(2) of this section pursuant to 
your approved schedule.
    (5) If you do not have an approved schedule for phasing in permit 
coverage, you must make a determination whether to issue an NPDES permit 
or allow a waiver in accordance with paragraph (d)(1) or (d)(2) of this 
section, for each eligible MS4 by December 9, 2002.
    (6) You must periodically review any waivers granted in accordance 
with paragraph (d)(2) of this section to determine whether any of the 
information required for granting the waiver has changed. At a minimum, 
you must conduct such a review once every five years. In addition, you 
must consider any petition to review any waiver when the petitioner 
provides evidence that the information required for granting the waiver 
has substantially changed.
    (e) You must specify a time period of up to 5 years from the date of 
permit issuance for operators of regulated small MS4s to fully develop 
and implement their storm water program.
    (f) You must include the requirements in Sec. Sec. 122.33 through 
122.35 of this chapter in any permit issued for regulated small MS4s or 
develop permit limits based on a permit application submitted by a 
regulated small MS4. (You may include conditions in a regulated small 
MS4 NPDES permit that direct the MS4 to follow an existing qualifying 
local program's requirements, as a way of complying with

[[Page 287]]

some or all of the requirements in Sec. 122.34(b) of this chapter. See 
Sec. 122.34(c) of this chapter. Qualifying local, State or Tribal 
program requirements must impose, at a minimum, the relevant 
requirements of Sec. 122.34(b) of this chapter.)
    (g) If you issue a general permit to authorize storm water 
discharges from small MS4s, you must make available a menu of BMPs to 
assist regulated small MS4s in the design and implementation of 
municipal storm water management programs to implement the minimum 
measures specified in Sec. 122.34(b) of this chapter. EPA plans to 
develop a menu of BMPs that will apply in each State or Tribe that has 
not developed its own menu. Regardless of whether a menu of BMPs has 
been developed by EPA, EPA encourages State and Tribal permitting 
authorities to develop a menu of BMPs that is appropriate for local 
conditions. EPA also intends to provide guidance on developing BMPs and 
measurable goals and modify, update, and supplement such guidance based 
on the assessments of the NPDES MS4 storm water program and research to 
be conducted over the next thirteen years.
    (h)(1) You must incorporate any additional measures necessary to 
ensure effective implementation of your State or Tribal storm water 
program for regulated small MS4s.
    (2) Guidance: EPA recommends consideration of the following:
    (i) You are encouraged to use a general permit for regulated small 
MS4s;
    (ii) To the extent that your State or Tribe administers a dedicated 
funding source, you should play an active role in providing financial 
assistance to operators of regulated small MS4s;
    (iii) You should support local programs by providing technical and 
programmatic assistance, conducting research projects, performing 
watershed monitoring, and providing adequate legal authority at the 
local level;
    (iv) You are encouraged to coordinate and utilize the data collected 
under several programs including water quality management programs, TMDL 
programs, and water quality monitoring programs;
    (v) Where appropriate, you may recognize existing responsibilities 
among governmental entities for the control measures in an NPDES small 
MS4 permit (see Sec. 122.35(b) of this chapter); and
    (vi) You are encouraged to provide a brief (e.g., two page) 
reporting format to facilitate compiling and analyzing data from 
submitted reports under Sec. 122.34(g)(3) of this chapter. EPA intends 
to develop a model form for this purpose.

[64 FR 68850, Dec. 8, 1999]



Sec. 123.36  Establishment of technical standards for concentrated animal 

feeding operations.

    If the State has not already established technical standards for 
nutrient management that are consistent with 40 CFR 412.4(c)(2), the 
Director shall establish such standards by the date specified in Sec. 
123.62(e).

[68 FR 7269, Feb. 12, 2003]



           Subpart C_Transfer of Information and Permit Review



Sec. 123.41  Sharing of information.

    (a) Any information obtained or used in the administration of a 
State program shall be available to EPA upon request without 
restriction. If the information has been submitted to the State under a 
claim of confidentiality, the State must submit that claim to EPA when 
providing information under this section. Any information obtained from 
a State and subject to a claim of confidentiality will be treated in 
accordance with the regulations in 40 CFR part 2. If EPA obtains from a 
State information that is not claimed to be confidential, EPA may make 
that information available to the public without further notice.
    (b) EPA shall furnish to States with approved programs the 
information in its files not submitted under a claim of confidentiality 
which the State needs to implement its approved program. EPA shall 
furnish to States with approved programs information submitted to EPA 
under a claim of confidentiality, which the State needs to implement its 
approved program, subject to the conditions in 40 CFR part 2.

[[Page 288]]



Sec. 123.42  Receipt and use of Federal information.

    Upon approving a State permit program, EPA will send to the State 
agency administering the permit program any relevant information which 
was collected by EPA. The Memorandum of Agreement under Sec. 123.24 
(or, in the case of a sewage sludge management program, Sec. 501.14 of 
this chapter) will provide for the following, in such manner as the 
State Director and the Regional Administrator agree:
    (a) Prompt transmission to the State Director from the Regional 
Administrator of copies of any pending permit applications or any other 
relevant information collected before the approval of the State permit 
program and not already in the possession of the State Director. When 
existing permits are transferred to the State Director (e.g., for 
purposes of compliance monitoring, enforcement or reissuance), relevant 
information includes support files for permit issuance, compliance 
reports and records of enforcement actions.
    (b) Procedures to ensure that the State Director will not issue a 
permit on the basis of any application received from the Regional 
Administrator which the Regional Administrator identifies as incomplete 
or otherwise deficient until the State Director receives information 
sufficient to correct the deficiency.

[48 FR 14178, Apr. 1, 1983, as amended at 63 FR 45122, Aug. 24, 1998]



Sec. 123.43  Transmission of information to EPA.

    (a) Each State agency administering a permit program shall transmit 
to the Regional Administrator copies of permit program forms and any 
other relevant information to the extent and in the manner agreed to by 
the State Director and Regional Administrator in the Memorandum of 
Agreement and not inconsistent with this part. Proposed permits shall be 
prepared by State agencies unless agreement to the contrary has been 
reached under Sec. 123.44(j). The Memorandum of Agreement shall provide 
for the following:
    (1) Prompt transmission to the Regional Administrator of a copy of 
all complete permit applications received by the State Director, except 
those for which permit review has been waived under Sec. 123.24(d). The 
State shall supply EPA with copies of permit applications for which 
permit review has been waived whenever requested by EPA;
    (2) Prompt transmission to the Regional Administrator of notice of 
every action taken by the State agency related to the consideration of 
any permit application or general permit, including a copy of each 
proposed or draft permit and any conditions, requirements, or documents 
which are related to the proposed or draft permit or which affect the 
authorization of the proposed permit, except those for which permit 
review has been waived under Sec. 123.24(d). The State shall supply EPA 
with copies of notices for which permit review has been waived whenever 
requested by EPA; and
    (3) Transmission to the Regional Administrator of a copy of every 
issued permit following issuance, along with any and all conditions, 
requirements, or documents which are related to or affect the 
authorization of the permit.
    (b) If the State intends to waive any of the permit application 
requirements of Sec. 122.21(j) or (q) of this chapter for a specific 
applicant, the Director must submit a written request to the Regional 
Administrator no less than 210 days prior to permit expiration. This 
request must include the State's justification for granting the waiver.
    (c) The State program shall provide for transmission by the State 
Director to EPA of:
    (1) Notices from publicly owned treatment works under Sec. 
122.42(b) and 40 CFR part 403, upon request of the Regional 
Administrator;
    (2) A copy of any significant comments presented in writing pursuant 
to the public notice of a draft permit and a summary of any significant 
comments presented at any hearing on any draft permit, except those 
comments regarding permits for which permit review has been waived under 
Sec. 123.24(d) and for which EPA has not otherwise requested receipt, 
if:
    (i) The Regional Administrator requests this information; or
    (ii) The proposed permit contains requirements significantly 
different from those contained in the tentative determination and draft 
permit; or

[[Page 289]]

    (iii) Significant comments objecting to the tentative determination 
and draft permit have been presented at the hearing or in writing 
pursuant to the public notice.
    (d) Any State permit program shall keep such records and submit to 
the Administrator such information as the Administrator may reasonably 
require to ascertain whether the State program complies with the 
requirements of CWA or of this part.

[48 FR 14178, Apr. 1, 1983, as amended at 60 FR 33931, June 29, 1995; 64 
FR 42470, Aug. 4, 1999]



Sec. 123.44  EPA review of and objections to State permits.

    (a)(1) The Memorandum of Agreement shall provide a period of time 
(up to 90 days from receipt of proposed permits) to which the Regional 
Administrator may make general comments upon, objections to, or 
recommendations with respect to proposed permits. EPA reserves the right 
to take 90 days to supply specific grounds for objection, 
notwithstanding any shorter period specified in the Memorandum of 
Agreement, when a general objection is filed within the review period 
specified in the Memorandum of Agreement. The Regional Administrator 
shall send a copy of any comment, objection or recommendation to the 
permit applicant.
    (2) In the case of general permits, EPA shall have 90 days from the 
date of receipt of the proposed general permit to comment upon, object 
to or make recommendations with respect to the proposed general permit, 
and is not bound by any shorter time limits set by the Memorandum of 
Agreement for general comments, objections or recommendations.
    (b)(1) Within the period of time provided under the Memorandum of 
Agreement for making general comments upon, objections to or 
recommendations with respect to proposed permits, the Regional 
Administrator shall notify the State Director of any objection to 
issuance of a proposed permit (except as provided in paragraph (a)(2) of 
this section for proposed general permits). This notification shall set 
forth in writing the general nature of the objection.
    (2) Within 90 days following receipt of a proposed permit to which 
he or she has objected under paragraph (b)(1) of this section, or in the 
case of general permits within 90 days after receipt of the proposed 
general permit, the Regional Administrator shall set forth in writing 
and transmit to the State Director:
    (i) A statement of the reasons for the objection (including the 
section of CWA or regulations that support the objection), and
    (ii) The actions that must be taken by the State Director to 
eliminate the objection (including the effluent limitations and 
conditions which the permit would include if it were issued by the 
Regional Administrator.)
    Note: Paragraphs (a) and (b) of this section, in effect, modify any 
existing agreement between EPA and the State which provides less than 90 
days for EPA to supply the specific grounds for an objection. However, 
when an agreement provides for an EPA review period of less than 90 
days, EPA must file a general objection, in accordance with paragraph 
(b)(1) of this section within the time specified in the agreement. This 
general objection must be followed by a specific objection within the 
90-day period. This modification to MOA's allows EPA to provide detailed 
information concerning acceptable permit conditions, as required by 
section 402(d) of CWA. To avoid possible confusion, MOA's should be 
changed to reflect this arrangement.
    (c) The Regional Administrator's objection to the issuance of a 
proposed permit must be based upon one or more of the following grounds:
    (1) The permit fails to apply, or to ensure compliance with, any 
applicable requirement of this part;
    Note: For example, the Regional Administrator may object to a permit 
not requiring the achievement of required effluent limitations by 
applicable statutory deadlines.
    (2) In the case of a proposed permit for which notification to the 
Administrator is required under section 402(b)(5) of CWA, the written 
recommendations of an affected State have not been accepted by the 
permitting State and the Regional Administrator finds the reasons for 
rejecting the recommendations are inadequate;

[[Page 290]]

    (3) The procedures followed in connection with formulation of the 
proposed permit failed in a material respect to comply with procedures 
required by CWA or by regulations thereunder or by the Memorandum of 
Agreement;
    (4) Any finding made by the State Director in connection with the 
proposed permit misinterprets CWA or any guidelines or regulations under 
CWA, or misapplies them to the facts;
    (5) Any provisions of the proposed permit relating to the 
maintenance of records, reporting, monitoring, sampling, or the 
provision of any other information by the permittee are inadequate, in 
the judgment of the Regional Administrator, to assure compliance with 
permit conditions, including effluent standards and limitations or 
standards for sewage sludge use and disposal required by CWA, by the 
guidelines and regulations issued under CWA, or by the proposed permit;
    (6) In the case of any proposed permit with respect to which 
applicable effluent standards and limitations or standards for sewage 
sludge use and disposal under sections 301, 302, 306, 307, 318, 403, and 
405 of CWA have not yet been promulgated by the Agency, the proposed 
permit, in the judgment of the Regional Administrator, fails to carry 
out the provisions of CWA or of any regulations issued under CWA; the 
provisions of this paragraph apply to determinations made pursuant to 
Sec. 125.3(c)(2) in the absence of applicable guidelines, to best 
management practices under section 304(e) of CWA, which must be 
incorporated into permits as requirements under section 301, 306, 307, 
318, 403 or 405, and to sewage sludge use and disposal requirements 
developed on a case-by-case basis pursuant to section 405(d) of CWA, as 
the case may be;
    (7) Issuance of the proposed permit would in any other respect be 
outside the requirements of CWA, or regulations issued under CWA.
    (8) The effluent limits of a permit fail to satisfy the requirements 
of 40 CFR 122.44(d).
    (9) For a permit issued by a Great Lakes State or Tribe (as defined 
in 40 CFR 132.2), the permit does not satisfy the conditions promulgated 
by the State, Tribe, or EPA pursuant to 40 CFR part 132.
    (d) Prior to notifying the State Director of an objection based upon 
any of the grounds set forth in paragraph (c) of this section, the 
Regional Administrator:
    (1) Will consider all data transmitted pursuant to Sec. 123.43 (or, 
in the case of a sewage sludge management program, Sec. 501.21 of this 
chapter);
    (2) May, if the information provided is inadequate to determine 
whether the proposed permit meets the guidelines and requirements of 
CWA, request the State Director to transmit to the Regional 
Administrator the complete record of the permit proceedings before the 
State, or any portions of the record that the Regional Administrator 
determines are necessary for review. If this request is made within 30 
days of receipt of the State submittal under Sec. 123.43 (or, in the 
case of a sewage sludge management program, Sec. 501.21 of this 
chapter), it will constitute an interim objection to the issuance of the 
permit, and the full period of time specified in the Memorandum of 
Agreement for the Regional Administrator's review will recommence when 
the Regional Administrator has received such record or portions of the 
record; and
    (3) May, in his or her discretion, and to the extent feasible within 
the period of time available under the Memorandum of Agreement, afford 
to interested persons an opportunity to comment on the basis for the 
objection;
    (e) Within 90 days of receipt by the State Director of an objection 
by the Regional Administrator, the State or interstate agency or any 
interested person may request that a public hearing be held by the 
Regional Administrator on the objection. A public hearing in accordance 
with the procedures of Sec. 124.12 (c) and (d) of this chapter (or, in 
the case of a sewage sludge management program, Sec. 501.15(d)(7) of 
this chapter) will be held, and public notice provided in accordance 
with Sec. 124.10 of this chapter, (or, in the case of a sewage sludge 
management program, Sec. 501.15(d)(5) of this chapter), whenever 
requested by the State or the interstate agency which proposed the 
permit or if warranted by significant public interest based on requests 
received.

[[Page 291]]

    (f) A public hearing held under paragraph (e) of this section shall 
be conducted by the Regional Administrator, and, at the Regional 
Administrator's discretion, with the assistance of an EPA panel 
designated by the Regional Administrator, in an orderly and expeditious 
manner.
    (g) Following the public hearing, the Regional Administrator shall 
reaffirm the original objection, modify the terms of the objection, or 
withdraw the objection, and shall notify the State of this decision.
    (h)(1) If no public hearing is held under paragraph (e) of this 
section and the State does not resubmit a permit revised to meet the 
Regional Administrator's objection within 90 days of receipt of the 
objection, the Regional Administrator may issue the permit in accordance 
with parts 121, 122 and 124 of this chapter and any other guidelines and 
requirements of CWA.
    (2) If a public hearing is held under paragraph (e) of this section, 
the Regional Administrator does not withdraw the objection, and the 
State does not resubmit a permit revised to meet the Regional 
Administrator's objection or modified objection within 30 days of the 
date of the Regional Administrator's notification under paragraph (g) of 
this section, the Regional Administrator may issue the permit in 
accordance with parts 121, 122 and 124 of this chapter and any other 
guidelines and requirements of CWA.
    (3) Exclusive authority to issue the permit passes to EPA when the 
times set out in this paragraph expire.
    (i) [Reserved]
    (j) The Regional Administrator may agree, in the Memorandum of 
Agreement under Sec. 123.24 (or, in the case of a sewage sludge 
management program, Sec. 501.14 of this chapter), to review draft 
permits rather than proposed permits. In such a case, a proposed permit 
need not be prepared by the State and transmitted to the Regional 
Administrator for review in accordance with this section unless the 
State proposes to issue a permit which differs from the draft permit 
reviewed by the Regional Administrator, the Regional Administrator has 
objected to the draft permit, or there is significant public comment.

[48 FR 14178, Apr. 1, 1983, as amended at 54 FR 18785, May 2, 1989; 54 
FR 23896, June 2, 1989; 60 FR 15386, Mar. 23, 1995; 63 FR 45122, Aug. 
24, 1998; 65 FR 30910, May 15, 2000]



Sec. 123.45  Noncompliance and program reporting by the Director.

    The Director shall prepare quarterly, semi-annual, and annual 
reports as detailed below. When the State is the permit-issuing 
authority, the State Director shall submit all reports required under 
this section to the Regional Administrator, and the EPA Region in turn 
shall submit the State reports to EPA Headquarters. When EPA is the 
permit-issuing authority, the Regional Administrator shall submit all 
reports required under this section to EPA Headquarters.
    (a) Quarterly reports. The Director shall submit quarterly narrative 
reports for major permittees as follows:
    (1) Format. The report shall use the following format:
    (i) Provide a separate list of major NPDES permittees which shall be 
subcategorized as non-POTWs, POTWs, and Federal permittees.
    (ii) Alphabetize each list by permittee name. When two or more 
permittees have the same name, the permittee with the lowest permit 
number shall be entered first.
    (iii) For each permittee on the list, include the following 
information in the following order:
    (A) The name, location, and permit number.
    (B) A brief description and date of each instance of noncompliance 
for which paragraph (a)(2) of this section requires reporting. Each 
listing shall indicate each specific provision of paragraph (a)(2) 
(e.g., (ii)(A) thru (iii)(G)) which describes the reason for reporting 
the violation on the quarterly report.
    (C) The date(s), and a brief description of the action(s) taken by 
the Director to ensure compliance.
    (D) The status of the instance(s) of noncompliance and the date 
noncompliance was resolved.
    (E) Any details which tend to explain or mitigate the instance(s) of 
noncompliance.

[[Page 292]]

    (2) Instances of noncompliance by major dischargers to be reported--
(i) General. Instances of noncompliance, as defined in paragraphs 
(a)(2)(ii) and (iii) of this section, by major dischargers shall be 
reported in successive reports until the noncompliance is reported as 
resolved (i.e., the permittee is no longer violating the permit 
conditions reported as noncompliance in the QNCR). Once an instance of 
noncompliance is reported as resolved in the QNCR, it need not appear in 
subsequent reports.
    (A) All reported violations must be listed on the QNCR for the 
reporting period when the violation occurred, even if the violation is 
resolved during that reporting period.
    (B) All permittees under current enforcement orders (i.e., 
administrative and judicial orders and consent decrees) for previous 
instances of noncompliance must be listed in the QNCR until the orders 
have been satisfied in full and the permittee is in compliance with 
permit conditions. If the permittee is in compliance with the 
enforcement order, but has not achieved full compliance with permit 
conditions, the compliance status shall be reported as ``resolved 
pending,'' but the permittee will continue to be listed on the QNCR.
    (ii) Category I noncompliance. The following instances of 
noncompliance by major dischargers are Category I noncompliance:
    (A) Violations of conditions in enforcement orders except compliance 
schedules and reports.
    (B) Violations of compliance schedule milestones for starting 
construction, completing construction, and attaining final compliance by 
90 days or more from the date of the milestone specified in an 
enforcement order or a permit.
    (C) Violations of permit effluent limits that exceed the Appendix A 
``Criteria for Noncompliance Reporting in the NPDES Program''.
    (D) Failure to provide a compliance schedule report for final 
compliance or a monitoring report. This applies when the permittee has 
failed to submit a final compliance schedule progress report, 
pretreatment report, or a Discharge Monitoring Report within 30 days 
from the due date specified in an enforcement order or a permit.
    (iii) Category II noncompliance. Category II noncompliance includes 
violations of permit conditions which the Agency believes to be of 
substantial concern and may not meet the Category I criteria. The 
following are instances of noncompliance which must be reported as 
Category II noncompliance unless the same violation meets the criteria 
for Category I noncompliance:
    (A) (1) Violation of a permit limit;
    (2) An unauthorized bypass;
    (3) An unpermitted discharge; or
    (4) A pass-through of pollutants which causes or has the potential 
to cause a water quality problem (e.g., fish kills, oil sheens) or 
health problems (e.g., beach closings, fishing bans, or other 
restrictions of beneficial uses).
    (B) Failure of an approved POTW to implement its approved 
pretreatment program adequately including failure to enforce industrial 
pretreatment requirements on industrial users as required in the 
approved program.
    (C) Violations of any compliance schedule milestones (except those 
milestones listed in paragraph (a)(2)(ii)(B) of this section) by 90 days 
or more from the date specified in an enforcement order or a permit.
    (D) Failure of the permittee to provide reports (other than those 
reports listed in paragraph (a)(2)(ii)(D) of this section) within 30 
days from the due date specified in an enforcement order or a permit.
    (E) Instances when the required reports provided by the permittee 
are so deficient or incomplete as to cause misunderstanding by the 
Director and thus impede the review of the status of compliance.
    (F) Violations of narrative requirements (e.g., requirements to 
develop Spill Prevention Control and Countermeasure Plans and 
requirements to implement Best Management Practices), which are of 
substantial concern to the regulatory agency.
    (G) Any other violation or group of permit violations which the 
Director or Regional Administrator considers to be of substantial 
concern.
    (b) Semi-annual statistical summary report. Summary information 
shall be

[[Page 293]]

provided twice a year on the number of major permittees with two or more 
violations of the same monthly average permit limitation in a six month 
period, including those otherwise reported under paragraph (a) of this 
section. This report shall be submitted at the same time, according to 
the Federal fiscal year calendar, as the first and third quarter QNCRs.
    (c) Annual reports for NPDES--(1) Annual noncompliance report. 
Statistical reports shall be submitted by the Director on nonmajor NPDES 
permittees indicating the total number reviewed, the number of 
noncomplying nonmajor permittees, the number of enforcement actions, and 
number of permit modifications extending compliance deadlines. The 
statistical information shall be organized to follow the types of 
noncompliance listed in paragraph (a) of this section.
    (2) A separate list of nonmajor discharges which are one or more 
years behind in construction phases of the compliance schedule shall 
also be submitted in alphabetical order by name and permit number.
    (d) Schedule--(1) For all quarterly reports. On the last working day 
of May, August, November, and February, the State Director shall submit 
to the Regional Administrator information concerning noncompliance with 
NPDES permit requirements by major dischargers in the State in acordance 
with the following schedule. The Regional Administrator shall prepare 
and submit information for EPA-issued permits to EPA Headquarters in 
accordance with the same schedule:

   Quarters covered by reports on noncompliance by major dischargers:
                    [Date for completion of reports]
  January, February, and March............  \1\ May 31
  April, May, and June....................  \1\ August 31
  July, August, and September.............  \1\ November 30
  October, November, and December.........  \1\ February 28
 
\1\ Reports must be made available to the public for inspection and
  copying on this date.

    (2) For all annual reports. The period for annual reports shall be 
for the calendar year ending December 31, with reports completed and 
available to the public no more than 60 days later.

Appendix A to Sec. 123.45--Criteria for Noncompliance Reporting in the 
                              NPDES Program

    This appendix describes the criteria for reporting violations of 
NPDES permit effluent limits in the quarterly noncompliance report 
(QNCR) as specified under Sec. 123.45(a)(2)(ii)(c). Any violation of an 
NPDES permit is a violation of the Clean Water Act (CWA) for which the 
permittee is liable. An agency's decision as to what enforcement action, 
if any, should be taken in such cases, will be based on an analysis of 
facts and legal requirements.

                  Violations of Permit Effluent Limits

    Cases in which violations of permit effluent limits must be reported 
depend upon the magnitude and/or frequency of the violation. Effluent 
violations should be evaluated on a parameter-by-parameter and outfall-
by-outfall basis. The criteria for reporting effluent violations are as 
follows:

 a. Reporting Criteria for Violations of Monthly Average Permit Limits--
                         Magnitude and Frequency

    Violations of monthly average effluent limits which exceed or equal 
the product of the Technical Review Criteria (TRC) times the effluent 
limit, and occur two months in a six month period must be reported. TRCs 
are for two groups of pollutants.

Group I Pollutants--TRC=1.4
Group II Pollutants--TRC=1.2

 b. Reporting Criteria for Chronic Violations of Monthly Average Limits

    Chronic violations must be reported in the QNCR if the monthly 
average permit limits are exceeded any four months in a six-month 
period. These criteria apply to all Group I and Group II pollutants.

                       Group I Pollutants--TRC=1.4

                              Oxygen Demand

Biochemical Oxygen Demand
Chemical Oxygen Demand
Total Oxygen Demands
Total Organic Carbon
Other

                                 Solids

Total Suspended Solids (Residues)
Total Dissolved Solids (Residues)
Other

                                Nutrients

Inorganic Phosphorus Compounds
Inorganic Nitrogen Compounds
Other

                           Detergents and Oils

MBAS

[[Page 294]]

NTA
Oil and Grease
Other detergents or algicides

                                Minerals

Calcium
Chloride
Fluoride
Magnesium
Sodium
Potassium
Sulfur
Sulfate
Total Alkalinity
Total Hardness
Other Minerals

                                 Metals

Aluminum
Cobalt
Iron
Vanadium

                      Group II Pollutants--TRC=1.2

                           Metals (all forms)

Other metals not specifically listed under Group I

                                Inorganic

Cyanide
Total Residual Chlorine

                                Organics

    All organics are Group II except those specifically listed under 
Group I.

(Approved by the Office of Management and Budget under control number 
2040-0082)

[48 FR 14178, Apr. 1, 1983, as amended at 50 FR 34653, Aug. 26, 1985; 54 
FR 18785, May 2, 1989; 63 FR 45123, Aug. 24, 1998]



Sec. 123.46  Individual control strategies.

    (a) Not later than February 4, 1989, each State shall submit to the 
Regional Administrator for review, approval, and implementation an 
individual control strategy for each point source identified by the 
State pursuant to section 304(l)(1)(C) of the Act which discharges to a 
water identified by the State pursuant to section 304(l)(1)(B) which 
will produce a reduction in the discharge of toxic pollutants from the 
point sources identified under section 304(l)(1)(C) through the 
establishment of effluent limitations under section 402 of the CWA and 
water quality standards under section 303(c)(2)(B) of the CWA, which 
reduction is sufficient, in combination with existing controls on point 
and nonpoint sources of pollution, to achieve the applicable water 
quality standard as soon as possible, but not later than three years 
after the date of establishment of such strategy.
    (b) The Administrator shall approve or disapprove the control 
strategies submitted by any State pursuant to paragraph (a) of this 
section, not later than June 4, 1989. If a State fails to submit control 
strategies in accordance with paragraph (a) of this section or the 
Administrator does not approve the control strategies submitted by such 
State in accordance with paragraph (a), then, not later than June 4, 
1990, the Administrator in cooperation with such State and after notice 
and opportunity for public comment, shall implement the requirements of 
CWA section 304(l)(1) in such State. In the implementation of such 
requirements, the Administrator shall, at a minimum, consider for 
listing under CWA section 304(l)(1) any navigable waters for which any 
person submits a petition to the Administrator for listing not later 
than October 1, 1989.
    (c) For the purposes of this section the term individual control 
strategy, as set forth in section 304(l) of the CWA, means a final NPDES 
permit with supporting documentation showing that effluent limits are 
consistent with an approved wasteload allocation, or other documentation 
which shows that applicable water quality standards will be met not 
later than three years after the individual control strategy is 
established. Where a State is unable to issue a final permit on or 
before February 4, 1989, an individual control strategy may be a draft 
permit with an attached schedule (provided the State meets the schedule 
for issuing the final permit) indicating that the permit will be issued 
on or before February 4, 1990. If a point source is subject to section 
304(l)(1)(C) of the CWA and is also subject to an on-site response 
action under sections 104 or 106 of the Comprehensive Environmental 
Response, Compensation, and Liability Act of 1980 (CERCLA), (42 U.S.C. 
9601 et seq.), an individual control strategy may be the decision 
document (which incorporates the applicable or relevant and appropriate 
requirements under the CWA) prepared under sections 104 or 106 of CERCLA 
to address the release or

[[Page 295]]

threatened release of hazardous substances to the environment.
    (d) A petition submitted pursuant to section 304(l)(3) of the CWA 
must be submitted to the appropriate Regional Administrator. Petitions 
must identify a waterbody in sufficient detail so that EPA is able to 
determine the location and boundaries of the waterbody. The petition 
must also identify the list or lists for which the waterbody qualifies, 
and the petition must explain why the waterbody satisfies the criteria 
for listing under CWA section 304(l) and 40 CFR 130.10(d)(6).
    (e) If the Regional Administrator disapproves one or more individual 
control strategies, or if a State fails to provide adequate public 
notice and an opportunity to comment on the ICSs, then, not later than 
June 4, 1989, the Regional Administrator shall give a notice of approval 
or disapproval of the individual control strategies submitted by each 
State pursuant to this section as follows:
    (1) The notice of approval or disapproval given under this paragraph 
shall include the following:
    (i) The name and address of the EPA office that reviews the State's 
submittals.
    (ii) A brief description of the section 304(l) process.
    (iii) A list of ICSs disapproved under this section and a finding 
that the ICSs will not meet all applicable review criteria under this 
section and section 304(l) of the CWA.
    (iv) If the Regional Administrator determines that a State did not 
provide adequate public notice and an opportunity to comment on the 
waters, point sources, or ICSs prepared pursuant to section 304(l), or 
if the Regional Administrator chooses to exercise his or her discretion, 
a list of the ICSs approved under this section, and a finding that the 
ICSs satisfy all applicable review criteria.
    (v) The location where interested persons may examine EPA's records 
of approval and disapproval.
    (vi) The name, address, and telephone number of the person at the 
Regional Office from whom interested persons may obtain more 
information.
    (vii) Notice that written petitions or comments are due within 120 
days.
    (2) The Regional Administrator shall provide the notice of approval 
or disapproval given under this paragraph to the appropriate State 
Director. The Regional Administrator shall publish a notice of 
availability, in a daily or weekly newspaper with State-wide circulation 
or in the Federal Register, for the notice of approval or disapproval. 
The Regional Administrator shall also provide written notice to each 
discharger identified under section 304(l)(1)(C), that EPA has listed 
the discharger under section 304(l)(1)(C).
    (3) As soon as practicable but not later than June 4, 1990, the 
Regional Offices shall issue a response to petitions or comments 
received under section 304(l). The response to comments shall be given 
in the same manner as the notice described in paragraph (e) of this 
section except for the following changes:
    (i) The lists of ICSs reflecting any changes made pursuant to 
comments or petitions received.
    (ii) A brief description of the subsequent steps in the section 
304(l) process.
    (f) EPA shall review, and approve or disapprove, the individual 
control strategies prepared under section 304(l) of the CWA, using the 
applicable criteria set forth in section 304(l) of the CWA, and in 40 
CFR part 122, including Sec. 122.44(d). At any time after the Regional 
Administrator disapproves an ICS (or conditionally aproves a draft 
permit as an ICS), the Regional Office may submit a written notification 
to the State that the Regional Office intends to issue the ICS. Upon 
mailing the notification, and notwithstanding any other regulation, 
exclusive authority to issue the permit passes to EPA.

[54 FR 256, Jan. 4, 1989, as amended at 54 FR 23896, June 2, 1989; 57 FR 
33049, July 24, 1992]



          Subpart D_Program Approval, Revision, and Withdrawal



Sec. 123.61  Approval process.

    (a) After determining that a State program submission is complete, 
EPA shall publish notice of the State's application in the Federal 
Register,

[[Page 296]]

and in enough of the largest newspapers in the State to attract 
statewide attention, and shall mail notice to persons known to be 
interested in such matters, including all persons on appropriate State 
and EPA mailing lists and all permit holders and applicants within the 
State. The notice shall:
    (1) Provide a comment period of not less than 45 days during which 
interested members of the public may express their views on the State 
program;
    (2) Provide for a public hearing within the State to be held no less 
than 30 days after notice is published in the Federal Register;
    (3) Indicate the cost of obtaining a copy of the State's submission;
    (4) Indicate where and when the State's submission may be reviewed 
by the public;
    (5) Indicate whom an interested member of the public should contact 
with any questions; and
    (6) Briefly outline the fundamental aspects of the State's proposed 
program, and the process for EPA review and decision.
    (b) Within 90 days of the receipt of a complete program submission 
under Sec. 123.21 the Administrator shall approve or disapprove the 
program based on the requirements of this part and of CWA and taking 
into consideration all comments received. A responsiveness summary shall 
be prepared by the Regional Office which identifies the public 
participation activities conducted, describes the matters presented to 
the public, summarizes significant comments received and explains the 
Agency's response to these comments.
    (c) If the Administrator approves the State's program he or she 
shall notify the State and publish notice in the Federal Register. The 
Regional Administrator shall suspend the issuance of permits by EPA as 
of the date of program approval.
    (d) If the Administrator disapproves the State program he or she 
shall notify the State of the reasons for disapproval and of any 
revisions or modifications to the State program which are necessary to 
obtain approval.

[48 FR 14178, Apr. 1, 1983; 50 FR 6941, Feb. 19, 1985]



Sec. 123.62  Procedures for revision of State programs.

    (a) Either EPA or the approved State may initiate program revision. 
Program revision may be necessary when the controlling Federal or State 
statutory or regulatory authority is modified or supplemented. The State 
shall keep EPA fully informed of any proposed modifications to its basic 
statutory or regulatory authority, its forms, procedures, or priorities. 
Grounds for program revision include cases where a State's existing 
approved program includes authority to issue NPDES permits for 
activities on a Federal Indian reservation and an Indian Tribe has 
subsequently been approved for assumption of the NPDES program under 40 
CFR part 123 extending to those lands.
    (b) Revision of a State program shall be accomplished as follows:
    (1) The State shall submit a modified program description, Attorney 
General's statement, Memorandum of Agreement, or such other documents as 
EPA determines to be necessary under the circumstances.
    (2) Whenever EPA determines that the proposed program revision is 
substantial, EPA shall issue public notice and provide an opportunity to 
comment for a period of at least 30 days. The public notice shall be 
mailed to interested persons and shall be published in the Federal 
Register and in enough of the largest newspapers in the State to provide 
Statewide coverage. The public notice shall summarize the proposed 
revisions and provide for the opportunity to request a public hearing. 
Such a hearing will be held if there is significant public interest 
based on requests received.
    (3) The Administrator will approve or disapprove program revisions 
based on the requirements of this part (or, in the case of a sewage 
sludge management program, 40 CFR part 501) and of the CWA.
    (4) A program revision shall become effective upon the approval of 
the Administrator. Notice of approval of any substantial revision shall 
be published in the Federal Register. Notice of approval of non-
substantial program revisions may be given by a letter from the

[[Page 297]]

Administrator to the State Governor or his designee.
    (c) States with approved programs must notify EPA whenever they 
propose to transfer all or part of any program from the approved State 
agency to any other State agency, and must identify any new division of 
responsibilities among the agencies involved. The new agency is not 
authorized to administer the program until approved by the Administrator 
under paragraph (b) of this section. Organizational charts required 
under Sec. 123.22(b) (or, in the case of a sewage sludge management 
program, Sec. 501.12(b) of this chapter) must be revised and 
resubmitted.
    (d) Whenever the Administrator has reason to believe that 
circumstances have changed with respect to a State program, he may 
request, and the State shall provide, a supplemental Attorney General's 
statement, program description, or such other documents or information 
as are necessary.
    (e) State NPDES programs only. All new programs must comply with 
these regulations immediately upon approval. Any approved State section 
402 permit program which requires revision to conform to this part shall 
be so revised within one year of the date of promulgation of these 
regulations, unless a State must amend or enact a statute in order to 
make the required revision in which case such revision shall take place 
within 2 years, except that revision of State programs to implement the 
requirements of 40 CFR part 403 (pretreatment) shall be accomplished as 
provided in 40 CFR 403.10. In addition, approved States shall submit, 
within 6 months, copies of their permit forms for EPA review and 
approval. Approved States shall also assure that permit applicants, 
other than POTWs, submit, as part of their application, the information 
required under Sec. Sec. 124.4(d) and 122.21 (g) or (h), as 
appropriate.
    (f) Revision of a State program by a Great Lakes State or Tribe (as 
defined in 40 CFR 132.2) to conform to section 118 of the CWA and 40 CFR 
part 132 shall be accomplished pursuant to 40 CFR part 132.

[48 FR 14178, Apr. 1, 1983, as amended at 49 FR 31842, Aug. 8, 1984; 50 
FR 6941, Feb. 19, 1985; 53 FR 33007, Sept. 6, 1988; 58 FR 67983, Dec. 
22, 1993; 60 FR 15386, Mar. 23, 1995; 63 FR 45123, Aug. 24, 1998]



Sec. 123.63  Criteria for withdrawal of State programs.

    (a) In the case of a sewage sludge management program, references in 
this section to ``this part'' will be deemed to refer to 40 CFR part 
501. The Administrator may withdraw program approval when a State 
program no longer complies with the requirements of this part, and the 
State fails to take corrective action. Such circumstances include the 
following:
    (1) Where the State's legal authority no longer meets the 
requirements of this part, including:
    (i) Failure of the State to promulgate or enact new authorities when 
necessary; or
    (ii) Action by a State legislature or court striking down or 
limiting State authorities.
    (2) Where the operation of the State program fails to comply with 
the requirements of this part, including:
    (i) Failure to exercise control over activities required to be 
regulated under this part, including failure to issue permits;
    (ii) Repeated issuance of permits which do not conform to the 
requirements of this part; or
    (iii) Failure to comply with the public participation requirements 
of this part.
    (3) Where the State's enforcement program fails to comply with the 
requirements of this part, including:
    (i) Failure to act on violations of permits or other program 
requirements;
    (ii) Failure to seek adequate enforcement penalties or to collect 
administrative fines when imposed; or
    (iii) Failure to inspect and monitor activities subject to 
regulation.
    (4) Where the State program fails to comply with the terms of the 
Memorandum of Agreement required under Sec. 123.24 (or, in the case of 
a sewage sludge management program, Sec. 501.14 of this chapter).

[[Page 298]]

    (5) Where the State fails to develop an adequate regulatory program 
for developing water quality-based effluent limits in NPDES permits.
    (6) Where a Great Lakes State or Tribe (as defined in 40 CFR 132.2) 
fails to adequately incorporate the NPDES permitting implementation 
procedures promulgated by the State, Tribe, or EPA pursuant to 40 CFR 
part 132 into individual permits.
    (b) [Reserved]

[48 FR 14178, Apr. 1, 1983; 50 FR 6941, Feb. 19, 1985, as amended at 54 
FR 23897, June 2, 1989; 60 FR 15386, Mar. 23, 1995; 63 FR 45123, Aug. 
24, 1998]



Sec. 123.64  Procedures for withdrawal of State programs.

    (a) A State with a program approved under this part (or, in the case 
of a sewage sludge management program, 40 CFR part 501) may voluntarily 
transfer program responsibilities required by Federal law to EPA by 
taking the following actions, or in such other manner as may be agreed 
upon with the Administrator.
    (1) The State shall give the Administrator 180 days notice of the 
proposed transfer and shall submit a plan for the orderly transfer of 
all relevant program information not in the possession of EPA (such as 
permits, permit files, compliance files, reports, permit applications) 
which are necessary for EPA to administer the program.
    (2) Within 60 days of receiving the notice and transfer plan, the 
Administrator shall evaluate the State's transfer plan and shall 
identify any additional information needed by the Federal government for 
program administration and/or identify any other deficiencies in the 
plan.
    (3) At least 30 days before the transfer is to occur the 
Administrator shall publish notice of the transfer in the Federal 
Register and in enough of the largest newspapers in the State to provide 
Statewide coverage, and shall mail notice to all permit holders, permit 
applicants, other regulated persons and other interested persons on 
appropriate EPA and State mailing lists.
    (b) The following procedures apply when the Administrator orders the 
commencement of proceedings to determine whether to withdraw approval of 
a State program.
    (1) Order. The Administrator may order the commencement of 
withdrawal proceedings on his or her own initiative or in response to a 
petition from an interested person alleging failure of the State to 
comply with the requirements of this part as set forth in Sec. 123.63 
(or, in the case of a sewage sludge management program, Sec. 501.33 of 
this chapter). The Administrator will respond in writing to any petition 
to commence withdrawal proceedings. He may conduct an informal 
investigation of the allegations in the petition to determine whether 
cause exists to commence proceedings under this paragraph. The 
Administrator's order commencing proceedings under this paragraph will 
fix a time and place for the commencement of the hearing and will 
specify the allegations against the State which are to be considered at 
the hearing. Within 30 days the State must admit or deny these 
allegations in a written answer. The party seeking withdrawal of the 
State's program will have the burden of coming forward with the evidence 
in a hearing under this paragraph.
    (2) Definitions. For purposes of this paragraph the definitions of 
``Act,'' ``Administrative Law Judge,'' ``Hearing Clerk,'' and 
``Presiding Officer'' in 40 CFR 22.03 apply in addition to the 
following:
    (i) Party means the petitioner, the State, the Agency, and any other 
person whose request to participate as a party is granted.
    (ii) Person means the Agency, the State and any individual or 
organization having an interest in the subject matter of the proceeding.
    (iii) Petitioner means any person whose petition for commencement of 
withdrawal proceedings has been granted by the Administrator.
    (3) Procedures. (i) The following provisions of 40 CFR part 22 
(Consolidated Rules of Practice) are applicable to proceedings under 
this paragraph:
    (A) Sec. 22.02--(use of number/gender);
    (B) Sec. 22.04(c)--(authorities of Presiding Officer);
    (C) Sec. 22.06--(filing/service of rulings and orders);

[[Page 299]]

    (D) Sec. 22.09--(examination of filed documents);
    (E) Sec. 22.19(a), (b) and (c)--(prehearing conference);
    (F) Sec. 22.22--(evidence);
    (G) Sec. 22.23--(objections/offers of proof);
    (H) Sec. 22.25--(filing the transcript); and
    (I) Sec. 22.26--(findings/conclusions).
    (ii) The following provisions are also applicable:
    (A) Computation and extension of time--(1) Computation. In computing 
any period of time prescribed or allowed in these rules of practice, 
except as otherwise provided, the day of the event from which the 
designated period begins to run shall not be included. Saturdays, 
Sundays, and Federal legal holidays shall be included. When a stated 
time expires on a Saturday, Sunday, or legal holiday, the stated time 
period shall be extended to include the next business day.
    (2) Extensions of time. The Administrator, Regional Administrator, 
or Presiding Officer, as appropriate, may grant an extension of time for 
the filing of any pleading, document, or motion (i) upon timely motion 
of a party to the proceeding, for good cause shown, and after 
consideration of prejudice to other parties, or (ii) upon his own 
motion. Such a motion by a party may only be made after notice to all 
other parties, unless the movant can show good cause why serving notice 
is impracticable. The motion shall be filed in advance of the date on 
which the pleading, document or motion is due to be filed, unless the 
failure of a party to make timely motion for extension of time was the 
result of excusable neglect.
    (3) The time for commencement of the hearing shall not be extended 
beyond the date set in the Administrator's order without approval of the 
Administrator.
    (B) Ex parte discussion of proceedings. At no time after the 
issuance of the order commencing proceedings shall the Administrator, 
the Regional Administrator, the Regional Judicial Officer, the Presiding 
Officer, or any other person who is likely to advise these officials in 
the decision on the case, discuss ex parte the merits of the proceeding 
with any interested person outside the Agency, with any Agency staff 
member who performs a prosecutorial or investigative function in such 
proceeding or a factually related proceeding, or with any representative 
of such person. Any ex parte memorandum or other communication addressed 
to the Administrator, the Regional Administrator, the Regional Judicial 
Officer, or the Presiding Officer during the pendency of the proceeding 
and relating to the merits thereof, by or on behalf of any party, shall 
be regarded as argument made in the proceeding and shall be served upon 
all other parties. The other parties shall be given an opportunity to 
reply to such memorandum or communication.
    (C) Intervention--(1) Motion. A motion for leave to intervene in any 
proceeding conducted under these rules of practice must set forth the 
grounds for the proposed intervention, the position and interest of the 
movant and the likely impact that intervention will have on the 
expeditious progress of the proceeding. Any person already a party to 
the proceeding may file an answer to a motion to intervene, making 
specific reference to the factors set forth in the foregoing sentence 
and paragraph (b)(3)(ii)(C)(3) of this section, within ten (10) days 
after service of the motion for leave to intervene.
    (2) However, motions to intervene must be filed within 15 days from 
the date the notice of the Administrator's order is first published.
    (3) Disposition. Leave to intervene may be granted only if the 
movant demonstrates that (i) his presence in the proceeding would not 
unduly prolong or otherwise prejudice that adjudication of the rights of 
the original parties; (ii) the movant will be adversely affected by a 
final order; and (iii) the interests of the movant are not 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

[[Page 300]]

order setting the time for filing such brief. An amicus curiae is 
eligible to participate in any briefing after his motion is granted, and 
shall be served with all briefs, reply briefs, motions, and orders 
relating to issues to be briefed.
    (D) Motions--(1) General. All motions, except those made orally on 
the record during a hearing, shall (i) be in writing; (ii) state the 
grounds therefor with particularity; (iii) set forth the relief or order 
sought; and (iv) be accompanied by any affidavit, certificate, other 
evidence, or legal memorandum relied upon. Such motions shall be served 
as provided by paragraph (b)(4) of this section.
    (2) Response to motions. A party's response to any written motion 
must be filed within ten (10) days after service of such motion, unless 
additional time is allowed for such response. The response shall be 
accompanied by any affidavit, certificate, other evidence, or legal 
memorandum relied upon. If no response is filed within the designated 
period, the parties may be deemed to have waived any objection to the 
granting of the motion. The Presiding Officer, Regional Administrator, 
or Administrator, as appropriate, may set a shorter time for response, 
or make such other orders concerning the disposition of motions as they 
deem appropriate.
    (3) Decision. The Administrator shall rule on all motions filed or 
made after service of the recommended decision upon the parties. The 
Presiding Officer shall rule on all other motions. Oral argument on 
motions will be permitted where the Presiding Officer, Regional 
Administrator, or the Administrator considers it necessary or desirable.
    (4) Record of proceedings. (i) The hearing shall be either 
stenographically reported verbatim or tape recorded, and thereupon 
transcribed by an official reporter designated by the Presiding Officer;
    (ii) All orders issued by the Presiding Officer, transcripts of 
testimony, written statements of position, stipulations, exhibits, 
motions, briefs, and other written material of any kind submitted in the 
hearing shall be a part of the record and shall be available for 
inspection or copying in the Office of the Hearing Clerk, upon payment 
of costs. Inquiries may be made at the Office of the Administrative Law 
Judges, Hearing Clerk, 1200 Pennsylvania Ave., NW., Washington, DC 
20460;
    (iii) Upon notice to all parties the Presiding Officer may authorize 
corrections to the transcript which involves matters of substance;
    (iv) An original and two (2) copies of all written submissions to 
the hearing shall be filed with the Hearing Clerk;
    (v) A copy of each submission shall be served by the person making 
the submission upon the Presiding Officer and each party of record. 
Service under this paragraph shall take place by mail or personal 
delivery;
    (vi) Every submission shall be accompanied by an acknowledgement of 
service by the person served or proof of service in the form of a 
statement of the date, time, and manner of service and the names of the 
persons served, certified by the person who made service, and;
    (vii) The Hearing Clerk shall maintain and furnish to any person 
upon request, a list containing the name, service address, and telephone 
number of all parties and their attorneys or duly authorized 
representatives.
    (5) Participation by a person not a party. A person who is not a 
party may, in the discretion of the Presiding Officer, be permitted to 
make a limited appearance by making oral or written statement of his/her 
position on the issues within such limits and on such conditions as may 
be fixed by the Presiding Officer, but he/she may not otherwise 
participate in the proceeding.
    (6) Rights of parties. (i) All parties to the proceeding may:
    (A) Appear by counsel or other representative in all hearing and 
pre-hearing proceedings;
    (B) Agree to stipulations of facts which shall be made a part of the 
record.
    (7) Recommended decision. (i) Within 30 days after the filing of 
proposed findings and conclusions, and reply briefs, the Presiding 
Officer shall evaluate the record before him/her, the proposed findings 
and conclusions and any briefs filed by the parties and shall prepare a 
recommended decision, and shall certify the entire record, including the

[[Page 301]]

recommended decision, to the Administrator.
    (ii) Copies of the recommended decision shall be served upon all 
parties.
    (iii) Within 20 days after the certification and filing of the 
record and recommended decision, all parties may file with the 
Administrator exceptions to the recommended decision and a supporting 
brief.
    (8) Decision by Administrator. (i) Within 60 days after the 
certification of the record and filing of the Presiding Officer's 
recommeded decision, the Administrator shall review the record before 
him and issue his own decision.
    (ii) If the Administrator concludes that the State has administered 
the program in conformity with the appropriate Act and regulations his 
decision shall constitute ``final agency action'' within the meaning of 
5 U.S.C. 704.
    (iii) If the Administrator concludes that the State has not 
administered the program in conformity with the appropriate Act and 
regulations he shall list the deficiencies in the program and provide 
the State a reasonable time, not to exceed 90 days, to take such 
appropriate corrective action as the Administrator determines necessary.
    (iv) Within the time prescribed by the Administrator the State shall 
take such appropriate corrective action as required by the Administrator 
and shall file with the Administrator and all parties a statement 
certified by the State Director that such appropriate corrective action 
has been taken.
    (v) The Administrator may require a further showing in addition to 
the certified statement that corrective action has been taken.
    (vi) If the State fails to take such appropriate corrective action 
and file a certified statement thereof within the time prescribed by the 
Administrator, the Administrator shall issue a supplementary order 
withdrawing approval of the State program. If the State takes such 
appropriate corrective action, the Administrator shall issue a 
supplementary order stating that approval of authority is not withdrawn.
    (vii) The Administrator's supplementary order shall constitute final 
Agency action within the meaning of 5 U.S.C. 704.
    (viii) Withdrawal of authorization under this section and the 
appropriate Act does not relieve any person from complying with the 
requirements of State law, nor does it affect the validity of actions by 
the State prior to withdrawal.

[48 FR 14178, Apr. 1, 1983; 50 FR 6941, Feb. 19, 1985, as amended at 57 
FR 5335, Feb. 13, 1992; 63 FR 45123, Aug. 24, 1998]



PART 124_PROCEDURES FOR DECISIONMAKING--Table of Contents




                 Subpart A_General Program Requirements

Sec.
124.1 Purpose and scope.
124.2 Definitions.
124.3 Application for a permit.
124.4 Consolidation of permit processing.
124.5 Modification, revocation and reissuance, or termination of 
          permits.
124.6 Draft permits.
124.7 Statement of basis.
124.8 Fact sheet.
124.9 Administrative record for draft permits when EPA is the permitting 
          authority.
124.10 Public notice of permit actions and public comment period.
124.11 Public comments and requests for public hearings.
124.12 Public hearings.
124.13 Obligation to raise issues and provide information during the 
          public comment period.
124.14 Reopening of the public comment period.
124.15 Issuance and effective date of permit.
124.16 Stays of contested permit conditions.
124.17 Response to comments.
124.18 Administrative record for final permit when EPA is the permitting 
          authority.
124.19 Appeal of RCRA, UIC, NPDES, and PSD Permits.
124.20 Computation of time.
124.21 Effective date of part 124.

        Subpart B_Specific Procedures Applicable to RCRA Permits

124.31 Pre-application public meeting and notice.
124.32 Public notice requirements at the application stage.
124.33 Information repository.

         Subpart C_Specific Procedures Applicable to PSD Permits

124.41 Definitions applicable to PSD permits.

[[Page 302]]

124.42 Additional procedures for PSD permits affecting Class I areas.

        Subpart D_Specific Procedures Applicable to NPDES Permits

124.51 Purpose and scope.
124.52 Permits required on a case-by-case basis.
124.53 State certification.
124.54 Special provisions for State certification and concurrence on 
          applications for section 301(h) variances.
124.55 Effect of State certification.
124.56 Fact sheets.
124.57 Public notice.
124.58 [Reserved]
124.59 Conditions requested by the Corps of Engineers and other 
          government agencies.
124.60 Issuance and effective date and stays of NPDES permits.
124.61 Final environmental impact statement.
124.62 Decision on variances.
124.63 Procedures for variances when EPA is the permitting authority.
124.64 Appeals of variances.
124.65 [Reserved]
124.66 Special procedures for decisions on thermal variances under 
          section 316(a).

Subparts E--F [Reserved]

            Subpart G_Procedures for RCRA Standardized Permit

             General Information About Standardized Permits

124.200 What is a RCRA standardized permit?
124.201 Who is eligible for a standardized permit?

                   Applying for a Standardized Permit

124.202 How do I as a facility owner or operator apply for a 
          standardized permit?
124.203 How may I switch from my individual RCRA permit to a 
          standardized permit?

                      Issuing a Standardized Permit

124.204 What must I do as the Director of the regulatory agency to 
          prepare a draft standardized permit?
124.205 What must I do as the Director of the regulatory agency to 
          prepare a final standardized permit?
124.206 In what situations may I require a facility owner or operator to 
          apply for an individual permit?

 Opportunities for Public Involvement in the Standardized Permit Process

124.207 What are the requirements for public notices?
124.208 What are the opportunities for public comments and hearings on 
          draft permit decisions?
124.209 What are the requirements for responding to comments?
124.210 May I, as an interested party in the permit process, appeal a 
          final standardized permit?

                    Maintaining a Standardized Permit

124.211 What types of changes may I make to my standardized permit?
124.212 What procedures must I follow to make routine changes?
124.213 What procedures must I follow to make routine changes with prior 
          approval?
124.214 What procedures must I follow to make significant changes?

    Authority: Resource Conservation and Recovery Act, 42 U.S.C. 6901 et 
seq.; Safe Drinking Water Act, 42 U.S.C. 300f et seq.; Clean Water Act, 
33 U.S.C. 1251 et seq.; Clean Air Act, 42 U.S.C. 7401 et seq.

    Source: 48 FR 14264, Apr. 1, 1983, unless otherwise noted.



                 Subpart A_General Program Requirements



Sec. 124.1  Purpose and scope.

    (a) This part contains EPA procedures for issuing, modifying, 
revoking and reissuing, or terminating all RCRA, UIC, PSD and NPDES 
``permits'' (including ``sludge-only'' permits issued pursuant to Sec. 
122.1(b)(2) of this chapter. The latter kinds of permits are governed by 
part 270. RCRA interim status and UIC authorization by rule are not 
``permits'' and are covered by specific provisions in parts 144, subpart 
C, and 270. This part also does not apply to permits issued, modified, 
revoked and reissued or terminated by the Corps of Engineers. Those 
procedures are specified in 33 CFR parts 320-327. The procedures of this 
part also apply to denial of a permit for the active life of a RCRA 
hazardous waste management facility or unit under Sec. 270.29.
    (b) Part 124 is organized into five subparts. Subpart A contains 
general procedural requirements applicable to all permit programs 
covered by these provisions. Subparts B through D and Subpart G 
supplement these general provisions with requirements that apply to

[[Page 303]]

only one or more of the programs. Subpart A describes the steps EPA will 
follow in receiving permit applications, preparing draft permits, 
issuing public notice, inviting public comment and holding public 
hearings on draft permits. Subpart A also covers assembling an 
administrative record, responding to comments, issuing a final permit 
decision, and allowing for administrative appeal of the final permit 
decisions. Subpart B contains public participation requirements 
applicable to all RCRA hazardous waste management facilities. Subpart C 
contains definitions and specific procedural requirements for PSD 
permits. Subpart D contains specific procedural requirements for NPDES 
permits. Subpart G contains specific procedural requirements for RCRA 
standardized permits, which, in some instances, change how the General 
Program Requirements of subpart A apply in the context of the RCRA 
standardized permit.
    (c) Part 124 offers an opportunity for public hearings (see Sec. 
124.12).
    (d) This part is designed to allow permits for a given facility 
under two or more of the listed programs to be processed separately or 
together at the choice of the Regional Administrator. This allows EPA to 
combine the processing of permits only when appropriate, and not 
necessarily in all cases. The Regional Administrator may consolidate 
permit processing when the permit applications are submitted, when draft 
permits are prepared, or when final permit decisions are issued. This 
part also allows consolidated permits to be subject to a single public 
hearing under Sec. 124.12. Permit applicants may recommend whether or 
not their applications should be consolidated in any given case.
    (e) Certain procedural requirements set forth in part 124 must be 
adopted by States in order to gain EPA approval to operate RCRA, UIC, 
NPDES, and 404 permit programs. These requirements are listed in 
Sec. Sec. 123.25 (NPDES), 145.11 (UIC), 233,26 (404), and 271.14 (RCRA) 
and signaled by the following words at the end of the appropriate part 
124 section or paragraph heading: (applicable to State programs see 
Sec. Sec. 123.25 (NPDES), 145.11 (UIC), 233.26 (404), and 271.14 
(RCRA)). Part 124 does not apply to PSD permits issued by an approved 
State.
    (f) To coordinate decisionmaking when different permits will be 
issued by EPA and approved State programs, this part allows applications 
to be jointly processed, joint comment periods and hearings to be held, 
and final permits to be issued on a cooperative basis whenever EPA and a 
State agree to take such steps in general or in individual cases. These 
joint processing agreements may be provided in the Memorandum of 
Agreement developed under Sec. Sec. 123.24 (NPDES), 145.24 (UIC), 
233.24 (404), and 271.8 (RCRA).

[48 FR 14264, Apr. 1, 1983, as amended at 54 FR 9607, Mar. 7, 1989; 54 
FR 18785, May 2, 1989; 65 FR 30910, May 15, 2000; 70 FR 53448, Sept. 8, 
2005]



Sec. 124.2  Definitions.

    (a) In addition to the definitions given in Sec. Sec. 122.2 and 
123.2 (NPDES), 501.2 (sludge management), 144.3 and 145.2 (UIC), 233.3 
(404), and 270.2 and 271.2 (RCRA), the definitions below apply to this 
part, except for PSD permits which are governed by the definitions in 
Sec. 124.41. Terms not defined in this section have the meaning given 
by the appropriate Act.
    Administrator means the Administrator of the U.S. Environmental 
Protection Agency, or an authorized representative.
    Application means the EPA standard national forms for applying for a 
permit, including any additions, revisions or modifications to the 
forms; or forms approved by EPA for use in ``approved States,'' 
including any approved modifications or revisions. For RCRA, application 
also includes the information required by the Director under Sec. Sec. 
270.14 through 270.29 [contents of Part B of the RCRA application].
    Appropriate Act and regulations means the Clean Water Act (CWA); the 
Solid Waste Disposal Act, as amended by the Resource Conservation 
Recovery Act (RCRA); or Safe Drinking Water Act (SDWA), whichever is 
applicable; and applicable regulations promulgated under those statutes. 
In the case of an ``approved State program'' appropriate Act and 
regulations includes program requirements.

[[Page 304]]

    CWA means the Clean Water Act (formerly referred to as the Federal 
Water Pollution Control Act of Federal Pollution Control Act Amendments 
of 1972) Public Law 92-500, as amended by Public Law 95-217 and Public 
Law 95-576; 33 U.S.C. 1251 et seq.
    Director means the Regional Administrator, the State director or the 
Tribal director as the context requires, or an authorized 
representative. When there is no approved State or Tribal program, and 
there is an EPA administered program, Director means the Regional 
Administrator. When there is an approved State or Tribal program, 
``Director'' normally means the State or Tribal director. In some 
circumstances, however, EPA retains the authority to take certain 
actions even when there is an approved State or Tribal program. (For 
example, when EPA has issued an NPDES permit prior to the approval of a 
State program, EPA may retain jurisdiction over that permit after 
program approval; see Sec. 123.1) In such cases, the term ``Director'' 
means the Regional Administrator and not the State or Tribal director.
    Draft permit means a document prepared under Sec. 124.6 indicating 
the Director's tentative decision to issue or deny, modify, revoke and 
reissue, terminate, or reissue a ``permit.'' A notice of intent to 
terminate a permit and a notice of intent to deny a permit as discussed 
in Sec. 124.5, are types of ``draft permits.'' A denial of a request 
for modification, revocation and reissuance or termination, as discussed 
in Sec. 124.5, is not a ``draft permit.'' A ``proposal permit'' is not 
a ``draft permit.''
    Environmental Appeals Board shall mean the Board within the Agency 
described in Sec. 1.25(e) of this title. The Administrator delegates 
authority to the Environmental Appeals Board to issue final decisions in 
RCRA, PSD, UIC, or NPDES permit appeals filed under this subpart, 
including informal appeals of denials of requests for modification, 
revocation and reissuance, or termination of permits under Section 
124.5(b). An appeal directed to the Administrator, rather than to the 
Environmental Appeals Board, will not be considered. This delegation 
does not preclude the Environmental Appeals Board from referring an 
appeal or a motion under this subpart to the Administrator when the 
Environmental Appeals Board, in its discretion, deems it appropriate to 
do so. When an appeal or motion is referred to the Administrator by the 
Environmental Appeals Board, all parties shall be so notified and the 
rules in this subpart referring to the Environmental Appeals Board shall 
be interpreted as referring to the Administrator.
    EPA (``EPA'') means the United States ``Environmental Protection 
Agency.''
    Facility or activity means any ``HWM facility,'' UIC ``injection 
well,'' NPDES ``point source'' or ``treatment works treating domestic 
sewage'' or State 404 dredge or fill activity, or any other facility or 
activity (including land or appurtenances thereto) that is subject to 
regulation under the RCRA, UIC, NPDES, or 404 programs.
    Federal Indian reservation (in the case of NPDES) means all land 
within the limits of any Indian reservation under the jurisdiction of 
the United States Government, notwithstanding the issuance of any 
patent, and including rights-of-way running through the reservation.
    General permit (NPDES and 404) means an NPDES or 404 ``permit'' 
authorizing a category of discharges or activities under the CWA within 
a geographical area. For NPDES, a general permit means a permit issued 
under Sec. 122.28. For 404, a general permit means a permit issued 
under Sec. 233.37.
    Indian Tribe means (in the case of UIC) any Indian Tribe having a 
federally recognized governing body carrying out substantial 
governmental duties and powers over a defined area. For the NPDES 
program, the term ``Indian Tribe'' means any Indian Tribe, band, group, 
or community recognized by the Secretary of the Interior and exercising 
governmental authority over a Federal Indian reservation.
    Interstate agency means an agency of two or more States established 
by or under an agreement or compact approved by the Congress, or any 
other agency of two or more States having substantial powers or duties 
pertaining

[[Page 305]]

to the control of pollution as determined and approved by the 
Administrator under the ``appropriate Act and regulations.''
    Major facility means any RCRA, UIC, NPDES, or 404 ``facility or 
activity'' classified as such by the Regional Administrator, or, in the 
case of ``approved State programs,'' the Regional Administrator in 
conjunction with the State Director.
    Owner or operator means owner or operator of any ``facility or 
activity'' subject to regulation under the RCRA, UIC, NPDES, or 404 
programs.
    Permit means an authorization, license or equivalent control 
document issued by EPA or an ``approved State'' to implement the 
requirements of this part and parts 122, 123, 144, 145, 233, 270, and 
271 of this chapter. ``Permit'' includes RCRA ``permit by rule'' (Sec. 
270.60), RCRA standardized permit (Sec. 270.67), UIC area permit (Sec. 
144.33), NPDES or 404 ``general permit'' (Sec. Sec. 270.61, 144.34, and 
233.38). Permit does not include RCRA interim status (Sec. 270.70), UIC 
authorization by rule (Sec. 144.21), or any permit which has not yet 
been the subject of final agency action, such as a ``draft permit'' or a 
``proposed permit.''
    Person means an individual, association, partnership, corporation, 
municipality, State, Federal, or Tribal agency, or an agency or employee 
thereof.
    RCRA means the Solid Waste Disposal Act as amended by the Resource 
Conservation and Recovery Act of 1976 (Pub. L. 94-580, as amended by 
Pub. L. 95-609, 42 U.S.C. 6901 et seq).
    Regional Administrator means the Regional Administrator of the 
appropriate Regional Office of the Environmental Protection Agency or 
the authorized representative of the Regional Administrator.
    Schedule of compliance means a schedule of remedial measures 
included in a ``permit,'' including an enforceable sequence of interim 
requirements (for example, actions, operations, or milestone events) 
leading to compliance with the ``appropriate Act and regulations.''
    SDWA means the Safe Drinking Water Act (Pub. L. 95-523, as amended 
by Pub. L. 95-1900; 42 U.S.C. 300f et seq).
    Section 404 program or State 404 program or 404 means an ``approved 
State program'' to regulate the ``discharge of dredged material'' and 
the ``discharge of fill material'' under section 404 of the Clean Water 
Act in ``State regulated waters.''
    Site means the land or water area where any ``facility or activity'' 
is physically located or conducted, including adjacent land used in 
connection with the facility or activity.
    Standardized permit means a RCRA permit authorizing management of 
hazardous waste issued under subpart G of this part and part 270, 
subpart J. The standardized permit may have two parts: A uniform portion 
issued in all cases and a supplemental portion issued at the Director's 
discretion.
    State means one of the States of the United States, the District of 
Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, 
American Samoa, the Trust Territory of the Pacific Islands (except in 
the case of RCRA), the Commonwealth of the Northern Mariana Islands, or 
an Indian Tribe that meets the statutory criteria which authorize EPA to 
treat the Tribe in a manner similar to that in which it treats a State 
(except in the case of RCRA).
    State Director means the chief administrative officer of any State, 
interstate, or Tribal agency operating an approved program, or the 
delegated representative of the State director. If the responsibility is 
divided among two or more States, interstate, or Tribal agencies, 
``State Director'' means the chief administrative officer of the State, 
interstate, or Tribal agency authorized to perform the particular 
procedure or function to which reference is made.
    State Director means the chief administrative officer of any State 
or interstate agency operating an ``approved program,'' or the delegated 
representative of the state Director. If responsibility is divided among 
two or more State or interstate agencies, ``State Director'' means the 
chief administrative officer of the State or interstate agency 
authorized to perform the particular procedure or function to which 
reference is made.

[[Page 306]]

    UIC means the Underground Injection Control program under Part C of 
the Safe Drinking Water Act, including an ``approved program.''
    (b) For the purposes of part 124, the term Director means the State 
Director or Regional Administrator and is used when the accompanying 
provision is required of EPA-administered programs and of State programs 
under Sec. Sec. 123.25 (NPDES), 145.11 (UIC), 233.26 (404), and 271.14 
(RCRA). The term Regional Administrator is used when the accompanying 
provision applies exclusively to EPA-issued permits and is not 
applicable to State programs under these sections. While States are not 
required to implement these latter provisions, they are not precluded 
from doing so, notwithstanding use of the term ``Regional 
Administrator.''

[48 FR 14264, Apr. 1, 1983; 48 FR 30115, June 30, 1983, as amended at 49 
FR 25981, June 25, 1984; 53 FR 37410, Sept. 26, 1988; 54 FR 18785, May 
2, 1989; 57 FR 5335, Feb. 13, 1992; 57 FR 60129, Dec. 18, 1992; 58 FR 
67983, Dec. 22, 1993; 59 FR 64343, Dec. 14, 1994; 65 FR 30910, May 15, 
2000; 70 FR 53449, Sept. 8, 2005]



Sec. 124.3  Application for a permit.

    (a) Applicable to State programs, see Sec. Sec. 123.25 (NPDES), 
145.11 (UIC), 233.26 (404), and 271.14 (RCRA). (1) Any person who 
requires a permit under the RCRA, UIC, NPDES, or PSD programs shall 
complete, sign, and submit to the Director an application for each 
permit required under Sec. Sec. 270.1 (RCRA), 144.1 (UIC), 40 CFR 52.21 
(PSD), and 122.1 (NPDES). Applications are not required for RCRA permits 
by rule (Sec. 270.60), underground injections authorized by rules 
(Sec. Sec. 144.21 through 144.26), NPDES general permits (Sec. 122.28) 
and 404 general permits (Sec. 233.37).
    (2) The Director shall not begin the processing of a permit until 
the applicant has fully complied with the application requirements for 
that permit. See Sec. Sec. 270.10, 270.13 (RCRA), 144.31 (UIC), 40 CFR 
52.21 (PSD), and 122.21 (NPDES).
    (3) Permit applications (except for PSD permits) must comply with 
the signature and certification requirements of Sec. Sec. 122.22 
(NPDES), 144.32 (UIC), 233.6 (404), and 270.11 (RCRA).
    (b) [Reserved]
    (c) The Regional Administrator shall review for completeness every 
application for an EPA-issued permit. Each application for an EPA-issued 
permit submitted by a new HWM facility, a new UIC injection well, a 
major PSD stationary source or major PSD modification, or an NPDES new 
source or NPDES new discharger should be reviewed for completeness by 
the Regional Administrator within 30 days of its receipt. Each 
application for an EPA-issued permit submitted by an existing HWM 
facility (both Parts A and B of the application), existing injection 
well or existing NPDES source or sludge-only facility should be reviewed 
for completeness within 60 days of receipt. Upon completing the review, 
the Regional Administrator shall notify the applicant in writing whether 
the application is complete. If the application is incomplete, the 
Regional Administrator shall list the information necessary to make the 
application complete. When the application is for an existing HWM 
facility, an existing UIC injection well or an existing NPDES source or 
``sludge-only facility'' the Regional Administrator shall specify in the 
notice of deficiency a date for submitting the necessary information. 
The Regional Administrator shall notify the applicant that the 
application is complete upon receiving this information. After the 
application is completed, the Regional Administrator may request 
additional information from an applicant but only when necessary to 
clarify, modify, or supplement previously submitted material. Requests 
for such additional information will not render an application 
incomplete.
    (d) If an applicant fails or refuses to correct deficiencies in the 
application, the permit may be denied and appropriate enforcement 
actions may be taken under the applicable statutory provision including 
RCRA section 3008, SDWA sections 1423 and 1424, CAA section 167, and CWA 
sections 308, 309, 402(h), and 402(k).
    (e) If the Regional Administrator decides that a site visit is 
necessary for any reason in conjunction with the processing of an 
application, he or she shall notify the applicant and a date shall be 
scheduled.
    (f) The effective date of an application is the date on which the 
Regional

[[Page 307]]

Administrator notifies the applicant that the application is complete as 
provided in paragraph (c) of this section.
    (g) For each application from a major new HWM facility, major new 
UIC injection well, major NPDES new source, major NPDES new discharger, 
or a permit to be issued under provisions of Sec. 122.28(c), the 
Regional Administrator shall, no later than the effective date of the 
application, prepare and mail to the applicant a project decision 
schedule. (This paragraph does not apply to PSD permits.) The schedule 
shall specify target dates by which the Regional Administrator intends 
to:
    (1) Prepare a draft permit;
    (2) Give public notice;
    (3) Complete the public comment period, including any public 
hearing; and
    (4) Issue a final permit.

(Clean Water Act (33 U.S.C. 1251 et seq.), Safe Drinking Water Act (42 
U.S.C. 300f et seq.), Clean Air Act (42 U.S.C. 7401 et seq.), Resource 
Conservation and Recovery Act (42 U.S.C. 6901 et seq.))

[48 FR 14264, Apr. 1, 1983, as amended at 48 FR 39620, Sept. 1, 1983; 54 
FR 18785, May 2, 1989; 65 FR 30910, May 15, 2000]



Sec. 124.4  Consolidation of permit processing.

    (a)(1) Whenever a facility or activity requires a permit under more 
than one statute covered by these regulations, processing of two or more 
applications for those permits may be consolidated. The first step in 
consolidation is to prepare each draft permit at the same time.
    (2) Whenever draft permits are prepared at the same time, the 
statements of basis (required under Sec. 124.7 for EPA-issued permits 
only) or fact sheets (Sec. 124.8), administrative records (required 
under Sec. 124.9 for EPA-issued permits only), public comment periods 
(Sec. 124.10), and any public hearings (Sec. 124.12) on those permits 
should also be consolidated. The final permits may be issued together. 
They need not be issued together if in the judgment of the Regional 
Administrator or State Director(s), joint processing would result in 
unreasonable delay in the issuance of one or more permits.
    (b) Whenever an existing facility or activity requires additional 
permits under one or more of the statutes covered by these regulations, 
the permitting authority may coordinate the expiration date(s) of the 
new permit(s) with the expiration date(s) of the existing permit(s) so 
that all permits expire simultaneously. Processing of the subsequent 
applications for renewal permits may then be consolidated.
    (c) Processing of permit applications under paragraph (a) or (b) of 
this section may be consolidated as follows:
    (1) The Director may consolidate permit processing at his or her 
discretion whenever a facility or activity requires all permits either 
from EPA or from an approved State.
    (2) The Regional Administrator and the State Director(s) may agree 
to consolidate draft permits whenever a facility or activity requires 
permits from both EPA and an approved State.
    (3) Permit applicants may recommend whether or not the processing of 
their applications should be consolidated.
    (d) [Reserved]
    (e) Except with the written consent of the permit applicant, the 
Regional Administrator shall not consolidate processing a PSD permit 
with any other permit under paragraph (a) or (b) of this section when to 
do so would delay issuance of the PSD permit more than one year from the 
effective date of the application under Sec. 124.3(f).

[48 FR 14264, Apr. 1, 1983, as amended at 65 FR 30910, May 15, 2000]



Sec. 124.5  Modification, revocation and reissuance, or termination of 

permits.

    (a) (Applicable to State programs, see Sec. Sec. 123.25 (NPDES), 
145.11 (UIC), 233.26 (404), and 271.14 (RCRA).) Permits (other than PSD 
permits) may be modified, revoked and reissued, or terminated either at 
the request of any interested person (including the permittee) or upon 
the Director's initiative. However, permits may only be modified, 
revoked and reissued, or terminated for the reasons specified in Sec. 
122.62 or Sec. 122.64 (NPDES), 144.39 or 144.40 (UIC), 233.14 or 233.15 
(404), and 270.41 or 270.43 (RCRA). All requests shall be in writing and 
shall contain facts or reasons supporting the request.
    (b) If the Director decides the request is not justified, he or she 
shall send the

[[Page 308]]

requester a brief written response giving a reason for the decision. 
Denials of requests for modification, revocation and reissuance, or 
termination are not subject to public notice, comment, or hearings. 
Denials by the Regional Administrator may be informally appealed to the 
Environmental Appeals Board by a letter briefly setting forth the 
relevant facts. The Environmental Appeals Board may direct the Regional 
Administrator to begin modification, revocation and reissuance, or 
termination proceedings under paragraph (c) of this section. The appeal 
shall be considered denied if the Environmental Appeals Board takes no 
action on the letter within 60 days after receiving it. This informal 
appeal is, under 5 U.S.C. 704, a prerequisite to seeking judicial review 
of EPA action in denying a request for modification, revocation and 
reissuance, or termination.
    (c) (Applicable to State programs, see 40 CFR 123.25 (NPDES), 145.11 
(UIC), 233.26 (404), and 271.14 (RCRA)). (1) If the Director tentatively 
decides to modify or revoke and reissue a permit under 40 CFR 122.62 
(NPDES), 144.39 (UIC), 233.14 (404), or 270.41 (other than Sec. 
270.41(b)(3)) or Sec. 270.42(c) (RCRA), he or she shall prepare a draft 
permit under Sec. 124.6 incorporating the proposed changes. The 
Director may request additional information and, in the case of a 
modified permit, may require the submission of an updated application. 
In the case of revoked and reissued permits, other than under 40 CFR 
270.41(b)(3), the Director shall require the submission of a new 
application. In the case of revoked and reissued permits under 40 CFR 
270.41(b)(3), the Director and the permittee shall comply with the 
appropriate requirements in 40 CFR part 124, subpart G for RCRA 
standardized permits.
    (2) In a permit modification under this section, only those 
conditions to be modified shall be reopened when a new draft permit is 
prepared. All other aspects of the existing permit shall remain in 
effect for the duration of the unmodified permit. When a permit is 
revoked and reissued under this section, the entire permit is reopened 
just as if the permit had expired and was being reissued. During any 
revocation and reissuance proceeding the permittee shall comply with all 
conditions of the existing permit until a new final permit is reissued.
    (3) ``Minor modifications'' as defined in Sec. Sec. 122.63 (NPDES), 
144.41 (UIC), and 233.16 (404), and ``Classes 1 and 2 modifications'' as 
defined in Sec. 270.42 (a) and (b) (RCRA) are not subject to the 
requirements of this section.
    (d) (Applicable to State programs, see Sec. Sec. 123.25 (NPDES) of 
this chapter, 145.11 (UIC) of this chapter, and 271.14 (RCRA) of this 
chapter.) (1) If the Director tentatively decides to terminate: A permit 
under Sec. 144.40 (UIC) of this chapter, a permit under Sec. Sec. 
122.64(a) (NPDES) of this chapter or 270.43 (RCRA) of this chapter (for 
EPA-issued NPDES permits, only at the request of the permittee), or a 
permit under Sec. 122.64(b) (NPDES) of this chapter where the permittee 
objects, he or she shall issue a notice of intent to terminate. A notice 
of intent to terminate is a type of draft permit which follows the same 
procedures as any draft permit prepared under Sec. 124.6 of this 
chapter.
    (2) For EPA-issued NPDES or RCRA permits, if the Director 
tentatively decides to terminate a permit under Sec. 122.64(a) (NPDES) 
of this chapter, other than at the request of the permittee, or decides 
to conduct a hearing under section 3008 of RCRA in connection with the 
termination of a RCRA permit, he or she shall prepare a complaint under 
40 CFR 22.13 and 22.44 of this chapter. Such termination of NPDES and 
RCRA permits shall be subject to the procedures of part 22 of this 
chapter.
    (3) In the case of EPA-issued permits, a notice of intent to 
terminate or a complaint shall not be issued if the Regional 
Administrator and the permittee agree to termination in the course of 
transferring permit responsibility to an approved State under Sec. Sec. 
123.24(b)(1) (NPDES) of this chapter, 145.25(b)(1) (UIC) of this 
chapter, 271.8(b)(6) (RCRA) of this chapter, or 501.14(b)(1) (sludge) of 
this chapter. In addition, termination of an NPDES permit for cause 
pursuant to Sec. 122.64 of this chapter may be accomplished by 
providing written notice to the permittee, unless the permittee objects.

[[Page 309]]

    (e) When EPA is the permitting authority, all draft permits 
(including notices of intent to terminate) prepared under this section 
shall be based on the administrative record as defined in Sec. 124.9.
    (f) (Applicable to State programs, see Sec. 233.26 (404).) Any 
request by the permittee for modification to an existing 404 permit 
(other than a request for a minor modification as defined in Sec. 
233.16 (404)) shall be treated as a permit application and shall be 
processed in accordance with all requirements of Sec. 124.3.
    (g)(1) (Reserved for PSD Modification Provisions).
    (2) PSD permits may be terminated only by rescission under Sec. 
52.21(w) or by automatic expiration under Sec. 52.21(r). Applications 
for rescission shall be precessed under Sec. 52.21(w) and are not 
subject to this part.

[48 FR 14264, Apr. 1, 1983, as amended at 53 FR 37934, Sept. 28, 1988; 
54 FR 18785, May 2, 1989; 57 FR 60129, Dec. 18, 1992; 65 FR 30910, May 
15, 2000; 70 FR 53449, Sept. 8, 2005]



Sec. 124.6  Draft permits.

    (a) (Applicable to State programs, see Sec. Sec. 123.25 (NPDES), 
145.11 (UIC), 233.26 (404), and 271.14 (RCRA).) Once an application is 
complete, the Director shall tentatively decide whether to prepare a 
draft permit (except in the case of State section 404 permits for which 
no draft permit is required under Sec. 233.39) or to deny the 
application.
    (b) If the Director tentatively decides to deny the permit 
application, he or she shall issue a notice of intent to deny. A notice 
of intent to deny the permit application is a type of draft permit which 
follows the same procedures as any draft permit prepared under this 
section. See Sec. 124.6(e). If the Director's final decision (Sec. 
124.15) is that the tentative decision to deny the permit application 
was incorrect, he or she shall withdraw the notice of intent to deny and 
proceed to prepare a draft permit under paragraph (d) of this section.
    (c) (Applicable to State programs, see Sec. Sec. 123.25 (NPDES) and 
233.26 (404).) If the Director tentatively decides to issue an NPDES or 
404 general permit, he or she shall prepare a draft general permit under 
paragraph (d) of this section.
    (d) (Applicable to State programs, see Sec. Sec. 123.25 (NPDES), 
145.11 (UIC), 233.26 (404), and 271.14 (RCRA).) If the Director decides 
to prepare a draft permit, he or she shall prepare a draft permit that 
contains the following information:
    (1) All conditions under Sec. Sec. 122.41 and 122.43 (NPDES), 
144.51 and 144.42 (UIC, 233.7 and 233.8 (404, or 270.30 and 270.32 
(RCRA) (except for PSD permits)));
    (2) All compliance schedules under Sec. Sec. 122.47 (NPDES), 144.53 
(UIC), 233.10 (404), or 270.33 (RCRA) (except for PSD permits);
    (3) All monitoring requirements under Sec. Sec. 122.48 (NPDES), 
144.54 (UIC), 233.11 (404), or 270.31 (RCRA) (except for PSD permits); 
and
    (4) For:
    (i) RCRA permits, standards for treatment, storage, and/or disposal 
and other permit conditions under Sec. 270.30;
    (ii) UIC permits, permit conditions under Sec. 144.52;
    (iii) PSD permits, permit conditions under 40 CFR Sec. 52.21;
    (iv) 404 permits, permit conditions under Sec. Sec. 233.7 and 
233.8;
    (v) NPDES permits, effluent limitations, standards, prohibitions, 
standards for sewage sludge use or disposal, and conditions under 
Sec. Sec. 122.41, 122.42, and 122.44, including when applicable any 
conditions certified by a State agency under Sec. 124.55, and all 
variances that are to be included under Sec. 124.63.
    (e) (Applicable to State programs, see Sec. Sec. 123.25 (NPDES), 
145.11 (UIC), 233.26 (404), and 271.14 (RCRA).) All draft permits 
prepared by EPA under this section shall be accompanied by a statement 
of basis (Sec. 124.7) or fact sheet (Sec. 124.8), and shall be based 
on the administrative record (Sec. 124.9), publicly noticed (Sec. 
124.10) and made available for public comment (Sec. 124.11). The 
Regional Administrator shall give notice of opportunity for a public 
hearing (Sec. 124.12), issue a final decision (Sec. 124.15) and 
respond to comments (Sec. 124.17). For RCRA, UIC or PSD permits, an 
appeal may be taken under Sec. 124.19 and, for NPDES permits, an appeal 
may be taken under Sec. 124.74. Draft permits prepared by a State shall 
be accompanied by a fact sheet if required under Sec. 124.8.

[48 FR 14264, Apr. 1, 1983, as amended at 54 FR 18785, May 2, 1989; 65 
FR 30910, May 15, 2000]

[[Page 310]]



Sec. 124.7  Statement of basis.

    EPA shall prepare a statement of basis for every draft permit for 
which a fact sheet under Sec. 124.8 is not prepared. The statement of 
basis shall briefly describe the derivation of the conditions of the 
draft permit and the reasons for them or, in the case of notices of 
intent to deny or terminate, reasons supporting the tentative decision. 
The statement of basis shall be sent to the applicant and, on request, 
to any other person.



Sec. 124.8  Fact sheet.

    (Applicable to State programs, see Sec. Sec. 123.25 (NPDES), 145.11 
(UIC), 233.26 (404), and 271.14 (RCRA).)
    (a) A fact sheet shall be prepared for every draft permit for a 
major HWM, UIC, 404, or NPDES facility or activity, for every Class I 
sludge management facility, for every 404 and NPDES general permit 
(Sec. Sec. 237.37 and 122.28), for every NPDES draft permit that 
incorporates a variance or requires an explanation under Sec. 
124.56(b), for every draft permit that includes a sewage sludge land 
application plan under 40 CFR 501.15(a)(2)(ix), and for every draft 
permit which the Director finds is the subject of wide-spread public 
interest or raises major issues. The fact sheet shall briefly set forth 
the principal facts and the significant factual, legal, methodological 
and policy questions considered in preparing the draft permit. The 
Director shall send this fact sheet to the applicant and, on request, to 
any other person.
    (b) The fact sheet shall include, when applicable:
    (1) A brief description of the type of facility or activity which is 
the subject of the draft permit;
    (2) The type and quantity of wastes, fluids, or pollutants which are 
proposed to be or are being treated, stored, disposed of, injected, 
emitted, or discharged.
    (3) For a PSD permit, the degree of increment consumption expected 
to result from operation of the facility or activity.
    (4) A brief summary of the basis for the draft permit conditions 
including references to applicable statutory or regulatory provisions 
and appropriate supporting references to the administrative record 
required by Sec. 124.9 (for EPA-issued permits);
    (5) Reasons why any requested variances or alternatives to required 
standards do or do not appear justified;
    (6) A description of the procedures for reaching a final decision on 
the draft permit including:
    (i) The beginning and ending dates of the comment period under Sec. 
124.10 and the address where comments will be received;
    (ii) Procedures for requesting a hearing and the nature of that 
hearing; and
    (iii) Any other procedures by which the public may participate in 
the final decision.
    (7) Name and telephone number of a person to contact for additional 
information.
    (8) For NPDES permits, provisions satisfying the requirements of 
Sec. 124.56.
    (9) Justification for waiver of any application requirements under 
Sec. 122.21(j) or (q) of this chapter.

[48 FR 14264, Apr. 1, 1983, as amended at 54 FR 18786, May 2, 1989; 64 
FR 42470, Aug. 4, 1999]



Sec. 124.9  Administrative record for draft permits when EPA is the permitting 

authority.

    (a) The provisions of a draft permit prepared by EPA under Sec. 
124.6 shall be based on the administrative record defined in this 
section.
    (b) For preparing a draft permit under Sec. 124.6, the record shall 
consist of:
    (1) The application, if required, and any supporting data furnished 
by the applicant;
    (2) The draft permit or notice of intent to deny the application or 
to terminate the permit;
    (3) The statement of basis (Sec. 124.7) or fact sheet (Sec. 
124.8);
    (4) All documents cited in the statement of basis or fact sheet; and
    (5) Other documents contained in the supporting file for the draft 
permit.
    (6) For NPDES new source draft permits only, any environmental 
assessment, environmental impact statement (EIS), finding of no 
significant impact, or environmental information document and any 
supplement to an EIS that may have been prepared. NPDES permits other 
than permits to new

[[Page 311]]

sources as well as all RCRA, UIC and PSD permits are not subject to the 
environmental impact statement provisions of section 102(2)(C) of the 
National Environmental Policy Act, 42 U.S.C. 4321.
    (c) Material readily available at the issuing Regional Office or 
published material that is generally available, and that is included in 
the administrative record under paragraphs (b) and (c) of this section, 
need not be physically included with the rest of the record as long as 
it is specifically referred to in the statement of basis or the fact 
sheet.
    (d) This section applies to all draft permits when public notice was 
given after the effective date of these regulations.



Sec. 124.10  Public notice of permit actions and public comment period.

    (a) Scope. (1) The Director shall give public notice that the 
following actions have occurred:
    (i) A permit application has been tentatively denied under Sec. 
124.6(b);
    (ii) (Applicable to State programs, see Sec. Sec. 123.25 (NPDES), 
145.11 (UIC), 233.26 (404), and 271.14 (RCRA).) A draft permit has been 
prepared under Sec. 124.6(d);
    (iii) (Applicable to State programs, see Sec. Sec. 123.25 (NPDES), 
145.11 (UIC), 233.26 (404) and 271.14 (RCRA)).) A hearing has been 
scheduled under Sec. 124.12;
    (iv) An appeal has been granted under Sec. 124.19(c);
    (v) (Applicable to State programs, see Sec. 233.26 (404).) A State 
section 404 application has been received in cases when no draft permit 
will be prepared (see Sec. 233.39); or
    (vi) An NPDES new source determination has been made under Sec. 
122.29.
    (2) No public notice is required when a request for permit 
modification, revocation and reissuance, or termination is denied under 
Sec. 124.5(b). Written notice of that denial shall be given to the 
requester and to the permittee.
    (3) Public notices may describe more than one permit or permit 
actions.
    (b) Timing (applicable to State programs, see Sec. Sec. 123.25 
(NPDES), 145.11 (UIC), 233.26 (404, and 271.14 (RCRA)). (1) Public 
notice of the preparation of a draft permit (including a notice of 
intent to deny a permit application) required under paragraph (a) of 
this section shall allow at least 30 days for public comment. For RCRA 
permits only, public notice shall allow at least 45 days for public 
comment. For EPA-issued permits, if the Regional Administrator 
determines under 40 CFR part 6, subpart F that an Environmental Impact 
Statement (EIS) shall be prepared for an NPDES new source, public notice 
of the draft permit shall not be given until after a draft EIS is 
issued.
    (2) Public notice of a public hearing shall be given at least 30 
days before the hearing. (Public notice of the hearing may be given at 
the same time as public notice of the draft permit and the two notices 
may be combined.)
    (c) Methods (applicable to State programs, see Sec. Sec. 123.25 
(NPDES), 145.11 (UIC), 233.26 (404), and 271.14 (RCRA)). Public notice 
of activities described in paragraph (a)(1) of this section shall be 
given by the following methods:
    (1) By mailing a copy of a notice to the following persons (any 
person otherwise entitled to receive notice under this paragraph may 
waive his or her rights to receive notice for any classes and categories 
of permits);
    (i) The applicant (except for NPDES and 404 general permits when 
there is no applicant);
    (ii) Any other agency which the Director knows has issued or is 
required to issue a RCRA, UIC, PSD (or other permit under the Clean Air 
Act), NPDES, 404, sludge management permit, or ocean dumping permit 
under the Marine Research Protection and Sanctuaries Act for the same 
facility or activity (including EPA when the draft permit is prepared by 
the State);
    (iii) Federal and State agencies with jurisdiction over fish, 
shellfish, and wildlife resources and over coastal zone management 
plans, the Advisory Council on Historic Preservation, State Historic 
Preservation Officers, including any affected States (Indian Tribes). 
(For purposes of this paragraph, and in the context of the Underground 
Injection Control Program only, the term State includes Indian Tribes 
treated as States.)
    (iv) For NPDES and 404 permits only, any State agency responsible 
for plan development under CWA section 208(b)(2), 208(b)(4) or 303(e) 
and the U.S.

[[Page 312]]

Army Corps of Engineers, the U.S. Fish and Wildlife Service and the 
National Marine Fisheries Service;
    (v) For NPDES permits only, any user identified in the permit 
application of a privately owned treatment works;
    (vi) For 404 permits only, any reasonably ascertainable owner of 
property adjacent to the regulated facility or activity and the Regional 
Director of the Federal Aviation Administration if the discharge 
involves the construction of structures which may affect aircraft 
operations or for purposes associated with seaplane operations;
    (vii) For PSD permits only, affected State and local air pollution 
control agencies, the chief executives of the city and county where the 
major stationary source or major modification would be located, any 
comprehensive regional land use planning agency and any State, Federal 
Land Manager, or Indian Governing Body whose lands may be affected by 
emissions from the regulated activity;
    (viii) For Class I injection well UIC permits only, state and local 
oil and gas regulatory agencies and state agencies regulating mineral 
exploration and recovery;
    (ix) Persons on a mailing list developed by:
    (A) Including those who request in writing to be on the list;
    (B) Soliciting persons for ``area lists'' from participants in past 
permit proceedings in that area; and
    (C) Notifying the public of the opportunity to be put on the mailing 
list through periodic publication in the public press and in such 
publications as Regional and State funded newsletters, environmental 
bulletins, or State law journals. (The Director may update the mailing 
list from time to time by requesting written indication of continued 
interest from those listed. The Director may delete from the list the 
name of any person who fails to respond to such a request.)
    (x)(A) To any unit of local government having jurisdiction over the 
area where the facility is proposed to be located; and (B) to each State 
agency having any authority under State law with respect to the 
construction or operation of such facility.
    (2)(i) For major permits, NPDES and 404 general permits, and permits 
that include sewage sludge land application plans under 40 CFR 
501.15(a)(2)(ix), publication of a notice in a daily or weekly newspaper 
within the area affected by the facility or activity; and for EPA-issued 
NPDES general permits, in the Federal Register;

    Note: The Director is encouraged to provide as much notice as 
possible of the NPDES or Section 404 draft general permit to the 
facilities or activities to be covered by the general permit.

    (ii) For all RCRA permits, publication of a notice in a daily or 
weekly major local newspaper of general circulation and broadcast over 
local radio stations.
    (3) When the program is being administered by an approved State, in 
a manner constituting legal notice to the public under State law; and
    (4) Any other method reasonably calculated to give actual notice of 
the action in question to the persons potentially affected by it, 
including press releases or any other forum or medium to elicit public 
participation.
    (d) Contents (applicable to State programs, see Sec. Sec. 123.25 
(NPDES), 145.11 (UIC), 233.26 (404), and 271.14 (RCRA))--(1) All public 
notices. All public notices issued under this part shall contain the 
following minimum information:
    (i) Name and address of the office processing the permit action for 
which notice is being given;
    (ii) Name and address of the permittee or permit applicant and, if 
different, of the facility or activity regulated by the permit, except 
in the case of NPDES and 404 draft general permits under Sec. Sec. 
122.28 and 233.37;
    (iii) A brief description of the business conducted at the facility 
or activity described in the permit application or the draft permit, for 
NPDES or 404 general permits when there is no application.
    (iv) Name, address and telephone number of a person from whom 
interested persons may obtain further information, including copies of 
the draft permit or draft general permit, as the case may be, statement 
of basis or fact sheet, and the application; and
    (v) A brief description of the comment procedures required by 
Sec. Sec. 124.11

[[Page 313]]

and 124.12 and the time and place of any hearing that will be held, 
including a statement of procedures to request a hearing (unless a 
hearing has already been scheduled) and other procedures by which the 
public may participate in the final permit decision.
    (vi) For EPA-issued permits, the location of the administrative 
record required by Sec. 124.9, the times at which the record will be 
open for public inspection, and a statement that all data submitted by 
the applicant is available as part of the administrative record.
    (vii) For NPDES permits only (including those for ``sludge-only 
facilities''), a general description of the location of each existing or 
proposed discharge point and the name of the receiving water and the 
sludge use and disposal practice(s) and the location of each sludge 
treatment works treating domestic sewage and use or disposal sites known 
at the time of permit application. For EPA-issued NPDES permits only, if 
the discharge is from a new source, a statement as to whether an 
environmental impact statement will be or has been prepared.
    (viii) For 404 permits only,
    (A) The purpose of the proposed activity (including, in the case of 
fill material, activities intended to be conducted on the fill), a 
description of the type, composition, and quantity of materials to be 
discharged and means of conveyance; and any proposed conditions and 
limitations on the discharge;
    (B) The name and water quality standards classification, if 
applicable, of the receiving waters into which the discharge is 
proposed, and a general description of the site of each proposed 
discharge and the portions of the site and the discharges which are 
within State regulated waters;
    (C) A description of the anticipated environmental effects of 
activities conducted under the permit;
    (D) References to applicable statutory or regulatory authority; and
    (E) Any other available information which may assist the public in 
evaluating the likely impact of the proposed activity upon the integrity 
of the receiving water.
    (ix) Requirements applicable to cooling water intake structures 
under section 316(b) of the CWA, in accordance with part 125, subparts I 
, J, and N of this chapter.
    (x) Any additional information considered necessary or proper.
    (2) Public notices for hearings. In addition to the general public 
notice described in paragraph (d)(1) of this section, the public notice 
of a hearing under Sec. 124.12 shall contain the following information:
    (i) Reference to the date of previous public notices relating to the 
permit;
    (ii) Date, time, and place of the hearing;
    (iii) A brief description of the nature and purpose of the hearing, 
including the applicable rules and procedures; and
    (iv) For 404 permits only, a summary of major issues raised to date 
during the public comment period.
    (e) (Applicable to State programs, see Sec. Sec. 123.25 (NPDES), 
145.11 (UIC), 233.26 (404), and 271.14 (RCRA).) In addition to the 
general public notice described in paragraph (d)(1) of this section, all 
persons identified in paragraphs (c)(1) (i), (ii), (iii), and (iv) of 
this section shall be mailed a copy of the fact sheet or statement of 
basis (for EPA-issued permits), the permit application (if any) and the 
draft permit (if any).

[48 FR 14264, Apr. 1, 1983; 48 FR 30115, June 30, 1983, as amended at 53 
FR 28147, July 26, 1988; 53 FR 37410, Sept. 26, 1988; 54 FR 258, Jan. 4, 
1989; 54 FR 18786, May 2, 1989; 65 FR 30911, May 15, 2000; 66 FR 65338, 
Dec. 18, 2001; 69 FR 41683, July 9, 2004; 71 FR 35040, June 16, 2006]



Sec. 124.11  Public comments and requests for public hearings.

    (Applicable to State programs, see Sec. Sec. 123.25 (NPDES), 145.11 
(UIC), 233.26 (404), and 271.14 (RCRA).) During the public comment 
period provided under Sec. 124.10, any interested person may submit 
written comments on the draft permit or the permit application for 404 
permits when no draft permit is required (see Sec. 233.39) and may 
request a public hearing, if no hearing has already been scheduled. A 
request for a public hearing shall be in writing and shall state the 
nature of the issues proposed to be raised in the hearing. All comments 
shall be considered in making the final decision and shall be answered 
as provided in Sec. 124.17.

[[Page 314]]



Sec. 124.12  Public hearings.

    (a) (Applicable to State programs, see Sec. Sec. 123.25 (NPDES), 
145.11 (UIC), 233.26 (404), and 271.14 (RCRA).) (1) The Director shall 
hold a public hearing whenever he or she finds, on the basis of 
requests, a significant degree of public interest in a draft permit(s);
    (2) The Director may also hold a public hearing at his or her 
discretion, whenever, for instance, such a hearing might clarify one or 
more issues involved in the permit decision;
    (3) For RCRA permits only, (i) the Director shall hold a public 
hearing whenever he or she receives written notice of opposition to a 
draft permit and a request for a hearing within 45 days of public notice 
under Sec. 124.10(b)(1); (ii) whenever possible the Director shall 
schedule a hearing under this section at a location convenient to the 
nearest population center to the proposed facility;
    (4) Public notice of the hearing shall be given as specified in 
Sec. 124.10.
    (b) Whenever a public hearing will be held and EPA is the permitting 
authority, the Regional Administrator shall designate a Presiding 
Officer for the hearing who shall be responsible for its scheduling and 
orderly conduct.
    (c) Any person may submit oral or written statements and data 
concerning the draft permit. Reasonable limits may be set upon the time 
allowed for oral statements, and the submission of statements in writing 
may be required. The public comment period under Sec. 124.10 shall 
automatically be extended to the close of any public hearing under this 
section. The hearing officer may also extend the comment period by so 
stating at the hearing.
    (d) A tape recording or written transcript of the hearing shall be 
made available to the public.

[48 FR 14264, Apr. 1, 1983, as amended at 49 FR 17718, Apr. 24, 1984; 50 
FR 6941, Feb. 19, 1985; 54 FR 258, Jan. 4, 1989; 65 FR 30911, May 15, 
2000]



Sec. 124.13  Obligation to raise issues and provide information during the 

public comment period.

    All persons, including applicants, who believe any condition of a 
draft permit is inappropriate or that the Director's tentative decision 
to deny an application, terminate a permit, or prepare a draft permit is 
inappropriate, must raise all reasonably ascertainable issues and submit 
all reasonably available arguments supporting their position by the 
close of the public comment period (including any public hearing) under 
Sec. 124.10. Any supporting materials which are submitted shall be 
included in full and may not be incorporated by reference, unless they 
are already part of the administrative record in the same proceeding, or 
consist of State or Federal statutes and regulations, EPA documents of 
general applicability, or other generally available reference materials. 
Commenters shall make supporting materials not already included in the 
administrative record available to EPA as directed by the Regional 
Administrator. (A comment period longer than 30 days may be necessary to 
give commenters a reasonable opportunity to comply with the requirements 
of this section. Additional time shall be granted under Sec. 124.10 to 
the extent that a commenter who requests additional time demonstrates 
the need for such time.)

[49 FR 38051, Sept. 26, 1984]



Sec. 124.14  Reopening of the public comment period.

    (a)(1) The Regional Administrator may order the public comment 
period reopened if the procedures of this paragraph could expedite the 
decisionmaking process. When the public comment period is reopened under 
this paragraph, all persons, including applicants, who believe any 
condition of a draft permit is inappropriate or that the Regional 
Administrator's tentative decision to deny an application, terminate a 
permit, or prepare a draft permit is inappropriate, must submit all 
reasonably available factual grounds supporting their position, 
including all supporting material, by a date, not less than sixty days 
after public notice under paragraph (a)(2) of this section, set by the 
Regional Administrator. Thereafter, any person may file a written 
response to the material filed by any other person, by a date, not less 
than twenty days after the date set for filing of the material, set by 
the Regional Administrator.

[[Page 315]]

    (2) Public notice of any comment period under this paragraph shall 
identify the issues to which the requirements of Sec. 124.14(a) shall 
apply.
    (3) On his own motion or on the request of any person, the Regional 
Administrator may direct that the requirements of paragraph (a)(1) of 
this section shall apply during the initial comment period where it 
reasonably appears that issuance of the permit will be contested and 
that applying the requirements of paragraph (a)(1) of this section will 
substantially expedite the decisionmaking process. The notice of the 
draft permit shall state whenever this has been done.
    (4) A comment period of longer than 60 days will often be necessary 
in complicated proceedings to give commenters a reasonable opportunity 
to comply with the requirements of this section. Commenters may request 
longer comment periods and they shall be granted under Sec. 124.10 to 
the extent they appear necessary.
    (b) If any data information or arguments submitted during the public 
comment period, including information or arguments required under Sec. 
124.13, appear to raise substantial new questions concerning a permit, 
the Regional Administrator may take one or more of the following 
actions:
    (1) Prepare a new draft permit, appropriately modified, under Sec. 
124.6;
    (2) Prepare a revised statement of basis under Sec. 124.7, a fact 
sheet or revised fact sheet under Sec. 124.8 and reopen the comment 
period under Sec. 124.14; or
    (3) Reopen or extend the comment period under Sec. 124.10 to give 
interested persons an opportunity to comment on the information or 
arguments submitted.
    (c) Comments filed during the reopened comment period shall be 
limited to the substantial new questions that caused its reopening. The 
public notice under Sec. 124.10 shall define the scope of the 
reopening.
    (d) [Reserved]
    (e) Public notice of any of the above actions shall be issued under 
Sec. 124.10.

[48 FR 14264, Apr. 1, 1983, as amended at 49 FR 38051, Sept. 26, 1984; 
65 FR 30911, May 15, 2000]



Sec. 124.15  Issuance and effective date of permit.

    (a) After the close of the public comment period under Sec. 124.10 
on a draft permit, the Regional Administrator shall issue a final permit 
decision (or a decision to deny a permit for the active life of a RCRA 
hazardous waste management facility or unit under Sec. 270.29). The 
Regional Administrator shall notify the applicant and each person who 
has submitted written comments or requested notice of the final permit 
decision. This notice shall include reference to the procedures for 
appealing a decision on a RCRA, UIC, PSD, or NPDES permit under Sec. 
124.19 of this part. For the purposes of this section, a final permit 
decision means a final decision to issue, deny, modify, revoke and 
reissue, or terminate a permit.
    (b) A final permit decision (or a decision to deny a permit for the 
active life of a RCRA hazardous waste management facility or unit under 
Sec. 270.29) shall become effective 30 days after the service of notice 
of the decision unless:
    (1) A later effective date is specified in the decision; or
    (2) Review is requested on the permit under Sec. 124.19.
    (3) No comments requested a change in the draft permit, in which 
case the permit shall become effective immediately upon issuance.

[48 FR 14264, Apr. 1, 1983, as amended at 54 FR 9607, Mar. 7, 1989; 65 
FR 30911, May 15, 2000]



Sec. 124.16  Stays of contested permit conditions.

    (a) Stays. (1) If a request for review of a RCRA, UIC, or NPDES 
permit under Sec. 124.19 of this part is filed, the effect of the 
contested permit conditions shall be stayed and shall not be subject to 
judicial review pending final agency action. Uncontested permit 
conditions shall be stayed only until the date specified in paragraph 
(a)(2)(i) of this section. (No stay of a PSD permit is available under 
this section.) If the permit involves a new facility or new injection 
well, new source, new discharger or a recommencing discharger, the 
applicant shall be without a permit for the proposed new facility, 
injection well, source or discharger pending final agency action. See 
also Sec. 124.60.

[[Page 316]]

    (2)(i) Uncontested conditions which are not severable from those 
contested shall be stayed together with the contested conditions. The 
Regional Administrator shall identify the stayed provisions of permits 
for existing facilities, injection wells, and sources. All other 
provisions of the permit for the existing facility, injection well, or 
source become fully effective and enforceable 30 days after the date of 
the notification required in paragraph (a)(2)(ii) of this section.
    (ii) The Regional Administrator shall, as soon as possible after 
receiving notification from the EAB of the filing of a petition for 
review, notify the EAB, the applicant, and all other interested parties 
of the uncontested (and severable) conditions of the final permit that 
will become fully effective enforceable obligations of the permit as of 
the date specified in paragraph (a)(2)(i) of this section . For NPDES 
permits only, the notice shall comply with the requirements of Sec. 
124.60(b).
    (b) Stays based on cross effects. (1) A stay may be granted based on 
the grounds that an appeal to the Administrator under Sec. 124.19 of 
one permit may result in changes to another EPA-issued permit only when 
each of the permits involved has been appealed to the Administrator and 
he or she has accepted each appeal.
    (2) No stay of an EPA-issued RCRA, UIC, or NPDES permit shall be 
granted based on the staying of any State-issued permit except at the 
discretion of the Regional Administrator and only upon written request 
from the State Director.
    (c) Any facility or activity holding an existing permit must:
    (1) Comply with the conditions of that permit during any 
modification or revocation and reissuance proceeding under Sec. 124.5; 
and
    (2) To the extent conditions of any new permit are stayed under this 
section, comply with the conditions of the existing permit which 
correspond to the stayed conditions, unless compliance with the existing 
conditions would be technologically incompatible with compliance with 
other conditions of the new permit which have not been stayed.

[48 FR 14264, Apr. 1, 1983, as amended at 65 FR 30911, May 15, 2000]



Sec. 124.17  Response to comments.

    (a) (Applicable to State programs, see Sec. Sec. 123.25 (NPDES), 
145.11 (UIC), 233.26 (404), and 271.14 (RCRA).) At the time that any 
final permit decision is issued under Sec. 124.15, the Director shall 
issue a response to comments. States are only required to issue a 
response to comments when a final permit is issued. This response shall:
    (1) Specify which provisions, if any, of the draft permit have been 
changed in the final permit decision, and the reasons for the change; 
and
    (2) Briefly describe and respond to all significant comments on the 
draft permit or the permit application (for section 404 permits only) 
raised during the public comment period, or during any hearing.
    (b) For EPA-issued permits, any documents cited in the response to 
comments shall be included in the administrative record for the final 
permit decision as defined in Sec. 124.18. If new points are raised or 
new material supplied during the public comment period, EPA may document 
its response to those matters by adding new materials to the 
administrative record.
    (c) (Applicable to State programs, see Sec. Sec. 123.25 (NPDES), 
145.11 (UIC), 233.26 (404), and 271.14 (RCRA).) The response to comments 
shall be available to the public.



Sec. 124.18  Administrative record for final permit when EPA is the permitting 

authority.

    (a) The Regional Administrator shall base final permit decisions 
under Sec. 124.15 on the administrative record defined in this section.
    (b) The administrative record for any final permit shall consist of 
the administrative record for the draft permit and:
    (1) All comments received during the public comment period provided 
under Sec. 124.10 (including any extension or reopening under Sec. 
124.14);
    (2) The tape or transcript of any hearing(s) held under Sec. 
124.12;

[[Page 317]]

    (3) Any written materials submitted at such a hearing;
    (4) The response to comments required by Sec. 124.17 and any new 
material placed in the record under that section;
    (5) For NPDES new source permits only, final environmental impact 
statement and any supplement to the final EIS;
    (6) Other documents contained in the supporting file for the permit; 
and
    (7) The final permit.
    (c) The additional documents required under paragraph (b) of this 
section should be added to the record as soon as possible after their 
receipt or publication by the Agency. The record shall be complete on 
the date the final permit is issued.
    (d) This section applies to all final RCRA, UIC, PSD, and NPDES 
permits when the draft permit was subject to the administrative record 
requirements of Sec. 124.9 and to all NPDES permits when the draft 
permit was included in a public notice after October 12, 1979.
    (e) Material readily available at the issuing Regional Office, or 
published materials which are generally available and which are included 
in the administrative record under the standards of this section or of 
Sec. 124.17 (``Response to comments''), need not be physically included 
in the same file as the rest of the record as long as it is specifically 
referred to in the statement of basis or fact sheet or in the response 
to comments.



Sec. 124.19  Appeal of RCRA, UIC, NPDES, and PSD Permits.

    (a) Within 30 days after a RCRA, UIC, NPDES, or PSD final permit 
decision (or a decision under 270.29 of this chapter to deny a permit 
for the active life of a RCRA hazardous waste management facility or 
unit) has been issued under Sec. 124.15 of this part, any person who 
filed comments on that draft permit or participated in the public 
hearing may petition the Environmental Appeals Board to review any 
condition of the permit decision. Persons affected by an NPDES general 
permit may not file a petition under this section or otherwise challenge 
the conditions of the general permit in further Agency proceedings. They 
may, instead, either challenge the general permit in court, or apply for 
an individual NPDES permit under Sec. 122.21 as authorized in Sec. 
122.28 and then petition the Board for review as provided by this 
section. As provided in Sec. 122.28(b)(3), any interested person may 
also petition the Director to require an individual NPDES permit for any 
discharger eligible for authorization to discharge under an NPDES 
general permit. Any person who failed to file comments or failed to 
participate in the public hearing on the draft permit may petition for 
administrative review only to the extent of the changes from the draft 
to the final permit decision. The 30-day period within which a person 
may request review under this section begins with the service of notice 
of the Regional Administrator's action unless a later date is specified 
in that notice. The petition shall include a statement of the reasons 
supporting that review, including a demonstration that any issues being 
raised were raised during the public comment period (including any 
public hearing) to the extent required by these regulations and when 
appropriate, a showing that the condition in question is based on:
    (1) A finding of fact or conclusion of law which is clearly 
erroneous, or
    (2) An exercise of discretion or an important policy consideration 
which the Environmental Appeals Board should, in its discretion, review.
    (b) The Environmental Appeals Board may also decide on its own 
initiative to review any condition of any RCRA, UIC, NPDES, or PSD 
permit decision issued under this part for which review is available 
under paragraph (a) of this section. The Environmental Appeals Board 
must act under this paragraph within 30 days of the service date of 
notice of the Regional Administrator's action.
    (c) Within a reasonable time following the filing of the petition 
for review, the Environmental Appeals Board shall issue an order 
granting or denying the petition for review. To the extent review is 
denied, the conditions of the final permit decision become final agency 
action. Public notice of any grant of review by the Environmental 
Appeals Board under paragraph (a) or (b) of this section shall be given

[[Page 318]]

as provided in Sec. 124.10. Public notice shall set forth a briefing 
schedule for the appeal and shall state that any interested person may 
file an amicus brief. Notice of denial of review shall be sent only to 
the person(s) requesting review.
    (d) The Regional Administrator, at any time prior to the rendering 
of a decision under paragraph (c) of this section to grant or deny 
review of a permit decision, may, upon notification to the Board and any 
interested parties, withdraw the permit and prepare a new draft permit 
under Sec. 124.6 addressing the portions so withdrawn. The new draft 
permit shall proceed through the same process of public comment and 
opportunity for a public hearing as would apply to any other draft 
permit subject to this part. Any portions of the permit which are not 
withdrawn and which are not stayed under Sec. 124.16(a) continue to 
apply.
    (e) A petition to the Environmental Appeals Board under paragraph 
(a) of this section is, under 5 U.S.C. 704, a prerequisite to the 
seeking of judicial review of the final agency action.
    (f)(1) For purposes of judicial review under the appropriate Act, 
final agency action occurs when a final RCRA, UIC, NPDES, or PSD permit 
decision is issued by EPA and agency review procedures under this 
section are exhausted. A final permit decision shall be issued by the 
Regional Administrator:
    (i) When the Environmental Appeals Board issues notice to the 
parties that review has been denied;
    (ii) When the Environmental Appeals Board issues a decision on the 
merits of the appeal and the decision does not include a remand of the 
proceedings; or
    (iii) Upon the completion of remand proceedings if the proceedings 
are remanded, unless the Environmental Appeals Board's remand order 
specifically provides that appeal of the remand decision will be 
required to exhaust administrative remedies.
    (2) Notice of any final agency action regarding a PSD permit shall 
promptly be published in the Federal Register.
    (g) Motions to reconsider a final order shall be filed within ten 
(10) days after service of the final order. Every such motion must set 
forth the matters claimed to have been erroneously decided and the 
nature of the alleged errors. Motions for reconsideration under this 
provision shall be directed to, and decided by, the Environmental 
Appeals Board. Motions for reconsideration directed to the 
administrator, rather than to the Environmental Appeals Board, will not 
be considered, except in cases that the Environmental Appeals Board has 
referred to the Administrator pursuant to Sec. 124.2 and in which the 
Administrator has issued the final order. A motion for reconsideration 
shall not stay the effective date of the final order unless specifically 
so ordered by the Environmental Appeals Board.

[48 FR 14264, Apr. 1, 1983, as amended at 54 FR 9607, Mar. 7, 1989; 57 
FR 5335, Feb. 13, 1992; 65 FR 30911, May 15, 2000]



Sec. 124.20  Computation of time.

    (a) Any time period scheduled to begin on the occurrence of an act 
or event shall begin on the day after the act or event.
    (b) Any time period scheduled to begin before the occurrence of an 
act or event shall be computed so that the period ends on the day before 
the act or event.
    (c) If the final day of any time period falls on a weekend or legal 
holiday, the time period shall be extended to the next working day.
    (d) Whenever a party or interested person has the right or is 
required to act within a prescribed period after the service of notice 
or other paper upon him or her by mail, 3 days shall be added to the 
prescribed time.



Sec. 124.21  Effective date of part 124.

    (a) Part 124 of this chapter became effective for all permits except 
for RCRA permits on July 18, 1980. Part 124 of this chapter became 
effective for RCRA permits on November 19, 1980.
    (b) EPA eliminated the previous requirement for NPDES permits to 
undergo an evidentiary hearing after permit issuance, and modified the 
procedures for termination of NPDES and RCRA permits, on June 14, 2000.
    (c)(1) For any NPDES permit decision for which a request for 
evidentiary hearing was granted on or prior to

[[Page 319]]

June 13, 2000, the hearing and any subsequent proceedings (including any 
appeal to the Environmental Appeals Board) shall proceed pursuant to the 
procedures of this part as in effect on June 13, 2000.
    (2) For any NPDES permit decision for which a request for 
evidentiary hearing was denied on or prior to June 13, 2000, but for 
which the Board has not yet completed proceedings under Sec. 124.91, 
the appeal, and any hearing or other proceedings on remand if the Board 
so orders, shall proceed pursuant to the procedures of this part as in 
effect on June 13, 2000.
    (3) For any NPDES permit decision for which a request for 
evidentiary hearing was filed on or prior to June 13, 2000 but was 
neither granted nor denied prior to that date, the Regional 
Administrator shall, no later than July 14, 2000, notify the requester 
that the request for evidentiary hearing is being returned without 
prejudice. Notwithstanding the time limit in Sec. 124.19(a), the 
requester may file an appeal with the Board, in accordance with the 
other requirements of Sec. 124.19(a), no later than August 13, 2000.
    (4) A party to a proceeding otherwise subject to paragraph (c) (1) 
or (2) of this section may, no later than June 14, 2000, request that 
the evidentiary hearing process be suspended. The Regional Administrator 
shall inquire of all other parties whether they desire the evidentiary 
hearing to continue. If no party desires the hearing to continue, the 
Regional Administrator shall return the request for evidentiary hearing 
in the manner specified in paragraph (c)(3) of this section.
    (d) For any proceeding to terminate an NPDES or RCRA permit 
commenced on or prior to June 13, 2000, the Regional Administrator shall 
follow the procedures of Sec. 124.5(d) as in effect on June 13, 2000, 
and any formal hearing shall follow the procedures of subpart E of this 
part as in effect on the same date.

[65 FR 30911, May 15, 2000]



        Subpart B_Specific Procedures Applicable to RCRA Permits

    Source: 60 FR 63431, Dec. 11, 1995, unless otherwise noted.



Sec. 124.31  Pre-application public meeting and notice.

    (a) Applicability. The requirements of this section shall apply to 
all RCRA part B applications seeking initial permits for hazardous waste 
management units over which EPA has permit issuance authority. The 
requirements of this section shall also apply to RCRA part B 
applications seeking renewal of permits for such units, where the 
renewal application is proposing a significant change in facility 
operations. For the purposes of this section, a ``significant change'' 
is any change that would qualify as a class 3 permit modification under 
40 CFR 270.42. For the purposes of this section only, ``hazardous waste 
management units over which EPA has permit issuance authority'' refers 
to hazardous waste management units for which the State where the units 
are located has not been authorized to issue RCRA permits pursuant to 40 
CFR part 271. The requirements of this section shall also apply to 
hazardous waste management facilities for which facility owners or 
operators are seeking coverage under a RCRA standardized permit (see 40 
part 270, subpart J), including renewal of a standardized permit for 
such units, where the renewal is proposing a significant change in 
facility operations, as defined at Sec. 124.211(c). The requirements of 
this section do not apply to permit modifications under 40 CFR 270.42 or 
to applications that are submitted for the sole purpose of conducting 
post-closure activities or post-closure activities and corrective action 
at a facility.
    (b) Prior to the submission of a part B RCRA permit application for 
a facility, or to the submission of a written Notice of Intent to be 
covered by a RCRA standardized permit (see 40 CFR part 270, subpart J), 
the applicant must hold at least one meeting with the public in order to 
solicit questions from the community and inform the community of 
proposed hazardous waste management activities. The applicant shall

[[Page 320]]

post a sign-in sheet or otherwise provide a voluntary opportunity for 
attendees to provide their names and addresses.
    (c) The applicant shall submit a summary of the meeting, along with 
the list of attendees and their addresses developed under paragraph (b) 
of this section, and copies of any written comments or materials 
submitted at the meeting, to the permitting agency as a part of the part 
B application, in accordance with 40 CFR 270.14(b), or with the written 
Notice of Intent to be covered by a RCRA standardized permit (see 40 CFR 
part 270, subpart J).
    (d) The applicant must provide public notice of the pre-application 
meeting at least 30 days prior to the meeting. The applicant must 
maintain, and provide to the permitting agency upon request, 
documentation of the notice.
    (1) The applicant shall provide public notice in all of the 
following forms:
    (i) A newspaper advertisement. The applicant shall publish a notice, 
fulfilling the requirements in paragraph (d)(2) of this section, in a 
newspaper of general circulation in the county or equivalent 
jurisdiction that hosts the proposed location of the facility. In 
addition, the Director shall instruct the applicant to publish the 
notice in newspapers of general circulation in adjacent counties or 
equivalent jurisdictions, where the Director determines that such 
publication is necessary to inform the affected public. The notice must 
be published as a display advertisement.
    (ii) A visible and accessible sign. The applicant shall post a 
notice on a clearly marked sign at or near the facility, fulfilling the 
requirements in paragraph (d)(2) of this section. If the applicant 
places the sign on the facility property, then the sign must be large 
enough to be readable from the nearest point where the public would pass 
by the site.
    (iii) A broadcast media announcement. The applicant shall broadcast 
a notice, fulfilling the requirements in paragraph (d)(2) of this 
section, at least once on at least one local radio station or television 
station. The applicant may employ another medium with prior approval of 
the Director.
    (iv) A notice to the permitting agency. The applicant shall send a 
copy of the newspaper notice to the permitting agency and to the 
appropriate units of State and local government, in accordance with 
Sec. 124.10(c)(1)(x).
    (2) The notices required under paragraph (d)(1) of this section must 
include:
    (i) The date, time, and location of the meeting;
    (ii) A brief description of the purpose of the meeting;
    (iii) A brief description of the facility and proposed operations, 
including the address or a map (e.g., a sketched or copied street map) 
of the facility location;
    (iv) A statement encouraging people to contact the facility at least 
72 hours before the meeting if they need special access to participate 
in the meeting; and
    (v) The name, address, and telephone number of a contact person for 
the applicant.

[60 FR 63431, Dec. 11, 1995, as amended at 70 FR 53449, Sept. 8, 2005]



Sec. 124.32  Public notice requirements at the application stage.

    (a) Applicability. The requirements of this section shall apply to 
all RCRA part B applications seeking initial permits for hazardous waste 
management units over which EPA has permit issuance authority. The 
requirements of this section shall also apply to RCRA part B 
applications seeking renewal of permits for such units under 40 CFR 
270.51. For the purposes of this section only, ``hazardous waste 
management units over which EPA has permit issuance authority'' refers 
to hazardous waste management units for which the State where the units 
are located has not been authorized to issue RCRA permits pursuant to 40 
CFR part 271. The requirements of this section do not apply to hazardous 
waste units for which facility owners or operators are seeking coverage 
under a RCRA standardized permit (see 40 CFR part 270, subpart J)). The 
requirements of this section also do not apply to permit modifications 
under 40 CFR 270.42 or permit applications submitted for the sole 
purpose of conducting post-closure activities or post-closure activities 
and corrective action at a facility.

[[Page 321]]

    (b) Notification at application submittal.
    (1) The Director shall provide public notice as set forth in Sec. 
124.10(c)(1)(ix), and notice to appropriate units of State and local 
government as set forth in Sec. 124.10(c)(1)(x), that a part B permit 
application has been submitted to the Agency and is available for 
review.
    (2) The notice shall be published within a reasonable period of time 
after the application is received by the Director. The notice must 
include:
    (i) The name and telephone number of the applicant's contact person;
    (ii) The name and telephone number of the permitting agency's 
contact office, and a mailing address to which information, opinions, 
and inquiries may be directed throughout the permit review process;
    (iii) An address to which people can write in order to be put on the 
facility mailing list;
    (iv) The location where copies of the permit application and any 
supporting documents can be viewed and copied;
    (v) A brief description of the facility and proposed operations, 
including the address or a map (e.g., a sketched or copied street map) 
of the facility location on the front page of the notice; and
    (vi) The date that the application was submitted.
    (c) Concurrent with the notice required under Sec. 124.32(b) of 
this subpart, the Director must place the permit application and any 
supporting documents in a location accessible to the public in the 
vicinity of the facility or at the permitting agency's office.

[60 FR 63431, Dec. 11, 1995, as amended at 70 FR 53449, Sept. 8, 2005]



Sec. 124.33  Information repository.

    (a) Applicability. The requirements of this section apply to all 
applications seeking RCRA permits for hazardous waste management units 
over which EPA has permit issuance authority. For the purposes of this 
section only, ``hazardous waste management units over which EPA has 
permit issuance authority'' refers to hazardous waste management units 
for which the State where the units are located has not been authorized 
to issue RCRA permits pursuant to 40 CFR part 271.
    (b) The Director may assess the need, on a case-by-case basis, for 
an information repository. When assessing the need for an information 
repository, the Director shall consider a variety of factors, including: 
the level of public interest; the type of facility; the presence of an 
existing repository; and the proximity to the nearest copy of the 
administrative record. If the Director determines, at any time after 
submittal of a permit application, that there is a need for a 
repository, then the Director shall notify the facility that it must 
establish and maintain an information repository. (See 40 CFR 270.30(m) 
for similar provisions relating to the information repository during the 
life of a permit).
    (c) The information repository shall contain all documents, reports, 
data, and information deemed necessary by the Director to fulfill the 
purposes for which the repository is established. The Director shall 
have the discretion to limit the contents of the repository.
    (d) The information repository shall be located and maintained at a 
site chosen by the facility. If the Director finds the site unsuitable 
for the purposes and persons for which it was established, due to 
problems with the location, hours of availability, access, or other 
relevant considerations, then the Director shall specify a more 
appropriate site.
    (e) The Director shall specify requirements for informing the public 
about the information repository. At a minimum, the Director shall 
require the facility to provide a written notice about the information 
repository to all individuals on the facility mailing list.
    (f) The facility owner/operator shall be responsible for maintaining 
and updating the repository with appropriate information throughout a 
time period specified by the Director. The Director may close the 
repository at his or her discretion, based on the factors in paragraph 
(b) of this section.

[[Page 322]]



         Subpart C_Specific Procedures Applicable to PSD Permits



Sec. 124.41  Definitions applicable to PSD permits.

    Whenever PSD permits are processed under this part, the following 
terms shall have the following meanings:
    Administrator, EPA, and Regional Administrator shall have the 
meanings set forth in Sec. 124.2, except when EPA has delegated 
authority to administer those regulations to another agency under the 
applicable subsection of 40 CFR 52.21, the term EPA shall mean the 
delegate agency and the term Regional Administrator shall mean the chief 
administrative officer of the delegate agency.
    Application means an application for a PSD permit.
    Appropriate Act and Regulations means the Clean Air Act and 
applicable regulations promulgated under it.
    Approved program means a State implementation plan providing for 
issuance of PSD permits which has been approved by EPA under the Clean 
Air Act and 40 CFR part 51. An approved State is one administering an 
approved program. State Director as used in Sec. 124.4 means the 
person(s) responsible for issuing PSD permits under an approved program, 
or that person's delegated representative.
    Construction has the meaning given in 40 CFR 52.21.
    Director means the Regional Administrator.
    Draft permit shall have the meaning set forth in Sec. 124.2.
    Facility or activity means a major PSD stationary source or major 
PSD modification.
    Federal Land Manager has the meaning given in 40 CFR 52.21.
    Indian Governing Body has the meaning given in 40 CFR 52.21.
    Major PSD modification means a major modification as defined in 40 
CFR 52.21.
    Major PSD stationary source means a major stationary source as 
defined in 40 CFR 52.21(b)(1).
    Owner or operator means the owner or operator of any facility or 
activity subject to regulation under 40 CFR 52.21 or by an approved 
State.
    Permit or PSD permit means a permit issued under 40 CFR 52.21 or by 
an approved State.
    Person includes an individual, corporation, partnership, 
association, State, municipality, political subdivision of a State, and 
any agency, department, or instrumentality of the United States and any 
officer, agent or employee thereof.
    Regulated activity or activity subject to regulation means a major 
PSD stationary source or major PSD modification.
    Site means the land or water area upon which a major PSD stationary 
source or major PSD modification is physically located or conducted, 
including but not limited to adjacent land used for utility systems; as 
repair, storage, shipping or processing areas; or otherwise in 
connection with the major PSD stationary source or major PSD 
modification.
    State means a State, the District of Columbia, the Commonwealth of 
Puerto Rico, the Virgin Islands, Guam, and American Samoa and includes 
the Commonwealth of the Northern Mariana Islands.



Sec. 124.42  Additional procedures for PSD permits affecting Class I areas.

    (a) The Regional Administrator shall provide notice of any permit 
application for a proposed major PSD stationary source or major PSD 
modification the emissions from which would affect a Class I area to the 
Federal Land Manager, and the Federal official charged with direct 
responsibility for management of any lands within such area. The 
Regional Administrator shall provide such notice promptly after 
receiving the application.
    (b) Any demonstration which the Federal Land Manager wishes to 
present under 40 CFR 52.21(q)(3), and any variances sought by an owner 
or operator under Sec. 52.21(q)(4) shall be submitted in writing, 
together with any necessary supporting analysis, by the end of the 
public comment period under Sec. 124.10 or Sec. 124.118. (40 CFR 
52.21(q)(3) provides for denial of a PSD permit to a facility or 
activity when the Federal Land Manager demonstrates that its emissions 
would adversely affect a Class I area even though the applicable 
increments

[[Page 323]]

would not be exceeded. 40 CFR 52.21(q)(4) conversely authorizes EPA, 
with the concurrence of the Federal Land Manager and State responsible, 
to grant certain variances from the otherwise applicable emission 
limitations to a facility or activity whose emissions would affect a 
Class I area.)
    (c) Variances authorized by 40 CFR 52.21 (q)(5) through (q)(7) shall 
be handled as specified in those paragraphs and shall not be subject to 
this part. Upon receiving appropriate documentation of a variance 
properly granted under any of these provisions, the Regional 
Administrator shall enter the variance in the administrative record. Any 
decisions later made in proceedings under this part concerning that 
permit shall be consistent with the conditions of that variance.



        Subpart D_Specific Procedures Applicable to NPDES Permits



Sec. 124.51  Purpose and scope.

    (a) This subpart sets forth additional requirements and procedures 
for decisionmaking for the NPDES program.
    (b) Decisions on NPDES variance requests ordinarily will be made 
during the permit issuance process. Variances and other changes in 
permit conditions ordinarily will be decided through the same notice-
and-comment and hearing procedures as the basic permit.
    (c) As stated in 40 CFR 131.4, an Indian Tribe that meets the 
statutory criteria which authorize EPA to treat the Tribe in a manner 
similar to that in which it treats a State for purposes of the Water 
Quality Standards program is likewise qualified for such treatment for 
purposes of State certification of water quality standards pursuant to 
section 401(a)(1) of the Act and subpart D of this part.

[48 FR 14264, Apr. 1, 1983, as amended at 58 FR 67983, Dec. 22, 1993; 59 
FR 64343, Dec. 14, 1994]



Sec. 124.52  Permits required on a case-by-case basis.

    (a) Various sections of part 122, subpart B allow the Director to 
determine, on a case-by-case basis, that certain concentrated animal 
feeding operations (Sec. 122.23), concentrated aquatic animal 
production facilities (Sec. l22.24), storm water discharges (Sec. 
122.26), and certain other facilities covered by general permits (Sec. 
122.28) that do not generally require an individual permit may be 
required to obtain an individual permit because of their contributions 
to water pollution.
    (b) Whenever the Regional Administrator decides that an individual 
permit is required under this section, except as provided in paragraph 
(c) of this section, the Regional Administrator shall notify the 
discharger in writing of that decision and the reasons for it, and shall 
send an application form with the notice. The discharger must apply for 
a permit under Sec. 122.21 within 60 days of notice, unless permission 
for a later date is granted by the Regional Administrator. The question 
whether the designation was proper will remain open for consideration 
during the public comment period under Sec. 124.11 and in any 
subsequent hearing.
    (c) Prior to a case-by-case determination that an individual permit 
is required for a storm water discharge under this section (see Sec. 
122.26(a)(1)(v), (c)(1)(v), and (a)(9)(iii) of this chapter), the 
Regional Administrator may require the discharger to submit a permit 
application or other information regarding the discharge under section 
308 of the CWA. In requiring such information, the Regional 
Administrator shall notify the discharger in writing and shall send an 
application form with the notice. The discharger must apply for a permit 
within 180 days of notice, unless permission for a later date is granted 
by the Regional Administrator. The question whether the initial 
designation was proper will remain open for consideration during the 
public comment period under Sec. 124.11 and in any subsequent hearing.

[55 FR 48075, Nov. 16, 1990, as amended at 60 FR 17957, Apr. 7, 1995; 60 
FR 19464, Apr. 18, 1995; 60 FR 40235, Aug. 7, 1995; 64 FR 68851, Dec. 8, 
1999; 65 FR 30912, May 15, 2000]



Sec. 124.53  State certification.

    (a) Under CWA section 401(a)(1), EPA may not issue a permit until a 
certification is granted or waived in accordance with that section by 
the State in which the discharge originates or will originate.

[[Page 324]]

    (b) Applications received without a State certification shall be 
forwarded by the Regional Administrator to the certifying State agency 
with a request that certification be granted or denied.
    (c) If State certification has not been received by the time the 
draft permit is prepared, the Regional Administrator shall send the 
certifying State agency:
    (1) A copy of a draft permit;
    (2) A statement that EPA cannot issue or deny the permit until the 
certifying State agency has granted or denied certification under Sec. 
124.55, or waived its right to certify; and
    (3) A statement that the State will be deemed to have waived its 
right to certify unless that right is exercised within a specified 
reasonable time not to exceed 60 days from the date the draft permit is 
mailed to the certifying State agency unless the Regional Administrator 
finds that unusual circumstances require a longer time.
    (d) State certification shall be granted or denied within the 
reasonable time specified under paragraph (c)(3) of this section. The 
State shall send a notice of its action, including a copy of any 
certification, to the applicant and the Regional Administrator.
    (e) State certification shall be in writing and shall include:
    (1) Conditions which are necessary to assure compliance with the 
applicable provisions of CWA sections 208(e), 301, 302, 303, 306, and 
307 and with appropriate requirements of State law;
    (2) When the State certifies a draft permit instead of a permit 
application, any conditions more stringent than those in the draft 
permit which the State finds necessary to meet the requirements listed 
in paragraph (e)(1) of this section. For each more stringent condition, 
the certifying State agency shall cite the CWA or State law references 
upon which that condition is based. Failure to provide such a citation 
waives the right to certify with respect to that condition; and
    (3) A statement of the extent to which each condition of the draft 
permit can be made less stringent without violating the requirements of 
State law, including water quality standards. Failure to provide this 
statement for any condition waives the right to certify or object to any 
less stringent condition which may be established during the EPA permit 
issuance process.



Sec. 124.54  Special provisions for State certification and concurrence on 

applications for section 301(h) variances.

    (a) When an application for a permit incorporating a variance 
request under CWA section 301(h) is submitted to a State, the 
appropriate State official shall either:
    (1) Deny the request for the CWA section 301(h) variance (and so 
notify the applicant and EPA) and, if the State is an approved NPDES 
State and the permit is due for reissuance, process the permit 
application under normal procedures; or
    (2) Forward a certification meeting the requirements of Sec. 124.53 
to the Regional Administrator.
    (b) When EPA issues a tentative decision on the request for a 
variance under CWA section 301(h), and no certification has been 
received under paragraph (a) of this section, the Regional Administrator 
shall forward the tentative decision to the State in accordance with 
Sec. 124.53(b) specifying a reasonable time for State certification and 
concurrence. If the State fails to deny or grant certification and 
concurrence under paragraph (a) of this section within such reasonable 
time, certification shall be waived and the State shall be deemed to 
have concurred in the issuance of a CWA section 301(h) variance.
    (c) Any certification provided by a State under paragraph (a)(2) of 
this section shall constitute the State's concurrence (as required by 
section 301(h)) in the issuance of the permit incorporating a section 
301(h) variance subject to any conditions specified therein by the 
State. CWA section 301(h) certification and concurrence under this 
section will not be forwarded to the State by EPA for recertification 
after the permit issuance process; States must specify any conditions 
required by State law, including water quality standards, in the initial 
certification.

[[Page 325]]



Sec. 124.55  Effect of State certification.

    (a) When certification is required under CWA section 401(a)(1) no 
final permit shall be issued:
    (1) If certification is denied, or
    (2) Unless the final permit incorporates the requirements specified 
in the certification under Sec. 124.53(e).
    (b) If there is a change in the State law or regulation upon which a 
certification is based, or if a court of competent jurisdiction or 
appropriate State board or agency stays, vacates, or remands a 
certification, a State which has issued a certification under Sec. 
124.53 may issue a modified certification or notice of waiver and 
forward it to EPA. If the modified certification is received before 
final agency action on the permit, the permit shall be consistent with 
the more stringent conditions which are based upon State law identified 
in such certification. If the certification or notice of waiver is 
received after final agency action on the permit, the Regional 
Administrator may modify the permit on request of the permittee only to 
the extent necessary to delete any conditions based on a condition in a 
certification invalidated by a court of competent jurisdiction or by an 
appropriate State board or agency.
    (c) A State may not condition or deny a certification on the grounds 
that State law allows a less stringent permit condition. The Regional 
Administrator shall disregard any such certification conditions, and 
shall consider those conditions or denials as waivers of certification.
    (d) A condition in a draft permit may be changed during agency 
review in any manner consistent with a certification meeting the 
requirements of Sec. 124.53(e). No such changes shall require EPA to 
submit the permit to the State for recertification.
    (e) Review and appeals of limitations and conditions attributable to 
State certification shall be made through the applicable procedures of 
the State and may not be made through the procedures in this part.
    (f) Nothing in this section shall affect EPA's obligation to comply 
with Sec. 122.47. See CWA section 301(b)(1)(C).

[48 FR 14264, Apr. 1, 1983, as amended at 65 FR 30912, May 15, 2000]



Sec. 124.56  Fact sheets.

    (Applicable to State programs, see Sec. 123.25 (NPDES).) In 
addition to meeting the requirements of Sec. 124.8, NPDES fact sheets 
shall contain the following:
    (a) Any calculations or other necessary explanation of the 
derivation of specific effluent limitations and conditions or standards 
for sewage sludge use or disposal, including a citation to the 
applicable effluent limitation guideline, performance standard, or 
standard for sewage sludge use or disposal as required by Sec. 122.44 
and reasons why they are applicable or an explanation of how the 
alternate effluent limitations were developed.
    (b)(1) When the draft permit contains any of the following 
conditions, an explanation of the reasons that such conditions are 
applicable:
    (i) Limitations to control toxic pollutants under Sec. 122.44(e) of 
this chapter;
    (ii) Limitations on internal waste streams under Sec. 122.45(i) of 
this chapter;
    (iii) Limitations on indicator pollutants under Sec. 125.3(g) of 
this chapter;
    (iv) Limitations set on a case-by-case basis under Sec. 125.3 
(c)(2) or (c)(3) of this chapter, or pursuant to Section 405(d)(4) of 
the CWA;
    (v) Limitations to meet the criteria for permit issuance under Sec. 
122.4(i) of this chapter, or
    (vi) Waivers from monitoring requirements granted under Sec. 
122.44(a) of this chapter.
    (2) For every permit to be issued to a treatment works owned by a 
person other than a State or municipality, an explanation of the 
Director's decision on regulation of users under Sec. 122.44(m).
    (c) When appropriate, a sketch or detailed description of the 
location of the discharge or regulated activity described in the 
application; and
    (d) For EPA-issued NPDES permits, the requirements of any State 
certification under Sec. 124.53.
    (e) For permits that include a sewage sludge land application plan 
under 40 CFR 501.15(a)(2)(ix), a brief description of how each of the 
required elements of

[[Page 326]]

the land application plan are addressed in the permit.

[48 FR 14264, Apr. 1, 1983, as amended at 49 FR 38051, Sept. 26, 1984; 
54 FR 18786, May 2, 1989; 65 FR 30912, May 15, 2000]



Sec. 124.57  Public notice.

    (a) Section 316(a) requests (applicable to State programs, see Sec. 
123.25). In addition to the information required under Sec. 
124.10(d)(1), public notice of an NPDES draft permit for a discharge 
where a CWA section 316(a) request has been filed under Sec. 122.21(l) 
shall include:
    (1) A statement that the thermal component of the discharge is 
subject to effluent limitations under CWA section 301 or 306 and a brief 
description, including a quantitative statement, of the thermal effluent 
limitations proposed under section 301 or 306;
    (2) A statement that a section 316(a) request has been filed and 
that alternative less stringent effluent limitations may be imposed on 
the thermal component of the discharge under section 316(a) and a brief 
description, including a quantitative statement, of the alternative 
effluent limitations, if any, included in the request; and
    (3) If the applicant has filed an early screening request under 
Sec. 125.72 for a section 316(a) variance, a statement that the 
applicant has submitted such a plan.
    (b) [Reserved]

[48 FR 14264, Apr. 1, 1983; 50 FR 6941, Feb. 19, 1985, as amended at 65 
FR 30912, May 15, 2000]



Sec. 124.58  [Reserved]



Sec. 124.59  Conditions requested by the Corps of Engineers and other 

government agencies.

    (Applicable to State programs, see Sec. 123.25 (NPDES).)
    (a) If during the comment period for an NPDES draft permit, the 
District Engineer advises the Director in writing that anchorage and 
navigation of any of the waters of the United States would be 
substantially impaired by the granting of a permit, the permit shall be 
denied and the applicant so notified. If the District Engineer advised 
the Director that imposing specified conditions upon the permit is 
necessary to avoid any substantial impairment of anchorage or 
navigation, then the Director shall include the specified conditions in 
the permit. Review or appeal of denial of a permit or of conditions 
specified by the District Engineer shall be made through the applicable 
procedures of the Corps of Engineers, and may not be made through the 
procedures provided in this part. If the conditions are stayed by a 
court of competent jurisdiction or by applicable procedures of the Corps 
of Engineers, those conditions shall be considered stayed in the NPDES 
permit for the duration of that stay.
    (b) If during the comment period the U.S. Fish and Wildlife Service, 
the National Marine Fisheries Service, or any other State or Federal 
agency with jurisdiction over fish, wildlife, or public health advises 
the Director in writing that the imposition of specified conditions upon 
the permit is necessary to avoid substantial impairment of fish, 
shellfish, or wildlife resources, the Director may include the specified 
conditions in the permit to the extent they are determined necessary to 
carry out the provisions of Sec. 122.49 and of the CWA.
    (c) In appropriate cases the Director may consult with one or more 
of the agencies referred to in this section before issuing a draft 
permit and may reflect their views in the statement of basis, the fact 
sheet, or the draft permit.

[48 FR 14264, Apr. 1, 1983, as amended at 54 FR 258, Jan. 4, 1989]



Sec. 124.60  Issuance and effective date and stays of NPDES permits.

    In addition to the requirements of Sec. Sec. 124.15, 124.16, and 
124.19, the following provisions apply to NPDES permits:
    (a) Notwithstanding the provisions of Sec. 124.16(a)(1), if, for 
any offshore or coastal mobile exploratory drilling rig or coastal 
mobile developmental drilling rig which has never received a final 
effective permit to discharge at a ``site,'' but which is not a ``new 
discharger'' or a ``new source,'' the Regional Administrator finds that 
compliance with certain permit conditions may be necessary to avoid 
irreparable environmental harm during the administrative review, he or 
she may specify in the statement of basis or fact sheet

[[Page 327]]

that those conditions, even if contested, shall remain enforceable 
obligations of the discharger during administrative review.
    (b)(1) As provided in Sec. 124.16(a), if an appeal of an initial 
permit decision is filed under Sec. 124.19, the force and effect of the 
contested conditions of the final permit shall be stayed until final 
agency action under Sec. 124.19(f). The Regional Administrator shall 
notify, in accordance with Sec. 124.16(a)(2)(ii), the discharger and 
all interested parties of the uncontested conditions of the final permit 
that are enforceable obligations of the discharger.
    (2) When effluent limitations are contested, but the underlying 
control technology is not, the notice shall identify the installation of 
the technology in accordance with the permit compliance schedules (if 
uncontested) as an uncontested, enforceable obligation of the permit.
    (3) When a combination of technologies is contested, but a portion 
of the combination is not contested, that portion shall be identified as 
uncontested if compatible with the combination of technologies proposed 
by the requester.
    (4) Uncontested conditions, if inseverable from a contested 
condition, shall be considered contested.
    (5) Uncontested conditions shall become enforceable 30 days after 
the date of notice under paragraph (b)(1) of this section.
    (6) Uncontested conditions shall include:
    (i) Preliminary design and engineering studies or other requirements 
necessary to achieve the final permit conditions which do not entail 
substantial expenditures;
    (ii) Permit conditions which will have to be met regardless of the 
outcome of the appeal under Sec. 124.19;
    (iii) When the discharger proposed a less stringent level of 
treatment than that contained in the final permit, any permit conditions 
appropriate to meet the levels proposed by the discharger, if the 
measures required to attain that less stringent level of treatment are 
consistent with the measures required to attain the limits proposed by 
any other party; and
    (iv) Construction activities, such as segregation of waste streams 
or installation of equipment, which would partially meet the final 
permit conditions and could also be used to achieve the discharger's 
proposed alternative conditions.
    (c) In addition to the requirements of Sec. 124.16(c)(2), when an 
appeal is filed under Sec. 124.19 on an application for a renewal of an 
existing permit and upon written request from the applicant, the 
Regional Administrator may delete requirements from the existing permit 
which unnecessarily duplicate uncontested provisions of the new permit.

[65 FR 30912, May 15, 2000]



Sec. 124.61  Final environmental impact statement.

    No final NPDES permit for a new source shall be issued until at 
least 30 days after the date of issuance of a final environmental impact 
statement if one is required under 40 CFR 6.805.



Sec. 124.62  Decision on variances.

    (Applicable to State programs, see Sec. 123.25 (NPDES).)
    (a) The Director may grant or deny requests for the following 
variances (subject to EPA objection under Sec. 123.44 for State 
permits):
    (1) Extensions under CWA section 301(i) based on delay in completion 
of a publicly owned treatment works;
    (2) After consultation with the Regional Administrator, extensions 
under CWA section 301(k) based on the use of innovative technology; or
    (3) Variances under CWA section 316(a) for thermal pollution.
    (b) The State Director may deny, or forward to the Regional 
Administrator with a written concurrence, or submit to EPA without 
recommendation a completed request for:
    (1) A variance based on the economic capability of the applicant 
under CWA section 301(c); or
    (2) A variance based on water quality related effluent limitations 
under CWA section 302(b)(2).
    (c) The Regional Administrator may deny, forward, or submit to the 
EPA Office Director for Water Enforcement and Permits with a 
recommendation for approval, a request for a variance

[[Page 328]]

listed in paragraph (b) of this section that is forwarded by the State 
Director, or that is submitted to the Regional Administrator by the 
requester where EPA is the permitting authority.
    (d) The EPA Office Director for Water Enforcement and Permits may 
approve or deny any variance request submitted under paragraph (c) of 
this section. If the Office Director approves the variance, the Director 
may prepare a draft permit incorporating the variance. Any public notice 
of a draft permit for which a variance or modification has been approved 
or denied shall identify the applicable procedures for appealing that 
decision under Sec. 124.64.
    (e) The State Director may deny or forward to the Administrator (or 
his delegate) with a written concurrence a completed request for:
    (1) A variance based on the presence of ``fundamentally different 
factors'' from those on which an effluent limitations guideline was 
based;
    (2) A variance based upon certain water quality factors under CWA 
section 301(g).
    (f) The Administrator (or his delegate) may grant or deny a request 
for a variance listed in paragraph (e) of this section that is forwarded 
by the State Director, or that is submitted to EPA by the requester 
where EPA is the permitting authority. If the Administrator (or his 
delegate) approves the variance, the State Director or Regional 
Administrator may prepare a draft permit incorporating the variance. Any 
public notice of a draft permit for which a variance or modification has 
been approved or denied shall identify the applicable procedures for 
appealing that decision under Sec. 124.64.

[48 FR 14264, Apr. 1, 1983; 50 FR 6941, Feb. 19, 1985, as amended at 51 
FR 16030, Apr. 30, 1986; 54 FR 256, 258, Jan. 4, 1989]



Sec. 124.63  Procedures for variances when EPA is the permitting authority.

    (a) In States where EPA is the permit issuing authority and a 
request for a variance is filed as required by Sec. 122.21, the request 
shall be processed as follows:
    (1)(i) If, at the time, that a request for a variance based on the 
presence of fundamentally different factors or on section 301(g) of the 
CWA is submitted, the Regional Administrator has received an application 
under Sec. 124.3 for issuance or renewal of that permit, but has not 
yet prepared a draft permit under Sec. 124.6 covering the discharge in 
question, the Administrator (or his delegate) shall give notice of a 
tentative decision on the request at the time the notice of the draft 
permit is prepared as specified in Sec. 124.10, unless this would 
significantly delay the processing of the permit. In that case the 
processing of the variance request may be separated from the permit in 
accordance with paragraph (a)(3) of this section, and the processing of 
the permit shall proceed without delay.
    (ii) If, at the time, that a request for a variance under sections 
301(c) or 302(b)(2) of the CWA is submitted, the Regional Administrator 
has received an application under Sec. 124.3 for issuance or renewal of 
that permit, but has not yet prepared a draft permit under Sec. 124.6 
covering the discharge in question, the Regional Administrator, after 
obtaining any necessary concurrence of the EPA Deputy Assistant 
Administrator for Water Enforcement under Sec. 124.62, shall give 
notice of a tentative decision on the request at the time the notice of 
the draft permit is prepared as specified in Sec. 124.10, unless this 
would significantly delay the processing of the permit. In that case the 
processing of the variance request may be separated from the permit in 
accordance with paragraph (a)(3) of this section, and the processing of 
the permit shall proceed without delay.
    (2) If, at the time that a request for a variance is filed the 
Regional Administrator has given notice under Sec. 124.10 of a draft 
permit covering the discharge in question, but that permit has not yet 
become final, administrative proceedings concerning that permit may be 
stayed and the Regional Administrator shall prepare a new draft permit 
including a tentative decision on the request, and the fact sheet 
required by Sec. 124.8. However, if this will significantly delay the 
processing of the existing draft permit or the Regional Administrator, 
for other reasons, considers combining the variance request and the 
existing draft permit

[[Page 329]]

inadvisable, the request may be separated from the permit in accordance 
with paragraph (a)(3) of this section, and the administrative 
disposition of the existing draft permit shall proceed without delay.
    (3) If the permit has become final and no application under Sec. 
124.3 concerning it is pending or if the variance request has been 
separated from a draft permit as described in paragraphs (a) (1) and (2) 
of this section, the Regional Administrator may prepare a new draft 
permit and give notice of it under Sec. 124.10. This draft permit shall 
be accompanied by the fact sheet required by Sec. 124.8 except that the 
only matters considered shall relate to the requested variance.

[48 FR 14264, Apr. 1, 1983, as amended at 51 FR 16030, Apr. 30, 1986]



Sec. 124.64  Appeals of variances.

    (a) When a State issues a permit on which EPA has made a variance 
decision, separate appeals of the State permit and of the EPA variance 
decision are possible. If the owner or operator is challenging the same 
issues in both proceedings, the Regional Administrator will decide, in 
consultation with State officials, which case will be heard first.
    (b) Variance decisions made by EPA may be appealed under the 
provisions of Sec. 124.19.
    (c) Stays for section 301(g) variances. If an appeal is filed under 
Sec. 124.19 of a variance requested under CWA section 301(g), any 
otherwise applicable standards and limitations under CWA section 301 
shall not be stayed unless:
    (1) In the judgment of the Regional Administrator, the stay or the 
variance sought will not result in the discharge of pollutants in 
quantities which may reasonably be anticipated to pose an unacceptable 
risk to human health or the environment because of bioaccumulation, 
persistency in the environment, acute toxicity, chronic toxicity, or 
synergistic propensities; and
    (2) In the judgment of the Regional Administrator, there is a 
substantial likelihood that the discharger will succeed on the merits of 
its appeal; and
    (3) The discharger files a bond or other appropriate security which 
is required by the Regional Administrator to assure timely compliance 
with the requirements from which a variance is sought in the event that 
the appeal is unsuccessful.
    (d) Stays for variances other than section 301(g) variances are 
governed by Sec. Sec. 124.16 and 124.60.

[48 FR 14264, Apr. 1, 1983, as amended at 65 FR 30912, May 15, 2000]



Sec. 124.65  [Reserved]



Sec. 124.66  Special procedures for decisions on thermal variances under 

section 316(a).

    (a) The only issues connected with issuance of a particular permit 
on which EPA will make a final Agency decision before the final permit 
is issued under Sec. Sec. 124.15 and 124.60 are whether alternative 
effluent limitations would be justified under CWA section 316(a) and 
whether cooling water intake structures will use the best available 
technology under section 316(b). Permit applicants who wish an early 
decision on these issues should request it and furnish supporting 
reasons at the time their permit applications are filed under Sec. 
122.21. The Regional Administrator will then decide whether or not to 
make an early decision. If it is granted, both the early decision on CWA 
section 316 (a) or (b) issues and the grant of the balance of the permit 
shall be considered permit issuance under these regulations, and shall 
be subject to the same requirements of public notice and comment and the 
same opportunity for an appeal under Sec. 124.19.
    (b) If the Regional Administrator, on review of the administrative 
record, determines that the information necessary to decide whether or 
not the CWA section 316(a) issue is not likely to be available in time 
for a decision on permit issuance, the Regional Administrator may issue 
a permit under Sec. 124.15 for a term up to 5 years. This permit shall 
require achievement of the effluent limitations initially proposed for 
the thermal component of the discharge no later than the date otherwise 
required by law. However, the permit shall also afford the permittee an 
opportunity to file a demonstration under CWA section 316(a) after 
conducting such studies as are required

[[Page 330]]

under 40 CFR part 125, subpart H. A new discharger may not exceed the 
thermal effluent limitation which is initially proposed unless and until 
its CWA section 316(a) variance request is finally approved.
    (c) Any proceeding held under paragraph (a) of this section shall be 
publicly noticed as required by Sec. 124.10 and shall be conducted at a 
time allowing the permittee to take necessary measures to meet the final 
compliance date in the event its request for modification of thermal 
limits is denied.
    (d) Whenever the Regional Administrator defers the decision under 
CWA section 316(a), any decision under section 316(b) may be deferred.

[48 FR 14264, Apr. 1, 1983, as amended at 65 FR 30912, May 15, 2000]

Subparts E--F [Reserved]



            Subpart G_Procedures for RCRA Standardized Permit

    Source: 70 FR 53449, Sept. 8, 2005, unless otherwise noted.

             General Information About Standardized Permits



Sec. 124.200  What is a RCRA standardized permit?

    The standardized permit is a special form of RCRA permit, that may 
consist of two parts: A uniform portion that the Director issues in all 
cases, and a supplemental portion that the Director issues at his or her 
discretion. We formally define the term ``Standardized permit'' in Sec. 
124.2.
    (a) What comprises the uniform portion? The uniform portion of a 
standardized permit consists of terms and conditions, relevant to the 
unit(s) you are operating at your facility, that EPA has promulgated in 
40 CFR part 267 (Standards for Owners and Operators of Hazardous Waste 
Facilities Operating under a Standardized Permit). If you intend to 
operate under the standardized permit, you must comply with these 
nationally applicable terms and conditions.
    (b) What comprises the supplemental portion? The supplemental 
portion of a standardized permit consists of site-specific terms and 
conditions, beyond those of the uniform portion, that the Director may 
impose on your particular facility, as necessary to protect human health 
and the environment. If the Director issues you a supplemental portion, 
you must comply with the site-specific terms and conditions it imposes.
    (1) When required under Sec. 267.101, provisions to implement 
corrective action will be included in the supplemental portion.
    (2) Unless otherwise specified, these supplemental permit terms and 
conditions apply to your facility in addition to the terms and 
conditions of the uniform portion of the standardized permit and not in 
place of any of those terms and conditions.



Sec. 124.201  Who is eligible for a standardized permit?

    (a) You may be eligible for a standardized permit if:
    (1) You generate hazardous waste and then store or non-thermally 
treat the hazardous waste on-site in containers, tanks, or containment 
buildings; or
    (2) You receive hazardous waste generated off-site by a generator 
under the same ownership as the receiving facility, and then you store 
or non-thermally treat the hazardous waste in containers, tanks, or 
containment buildings.
    (3) In either case, the Director will inform you of your eligibility 
when a decision is made on your permit.
    (b) [Reserved]

                   Applying for a Standardized Permit



Sec. 124.202  How do I as a facility owner or operator apply for a 

standardized permit?

    (a) You must follow the requirements in this subpart as well as 
those in Sec. 124.31, 40 CFR 270.10, and 40 CFR part 270, subpart J.
    (b) You must submit to the Director a written Notice of Intent to 
operate under the standardized permit. You must also include the 
information and certifications required under 40 CFR part 270, subpart 
J.

[[Page 331]]



Sec. 124.203  How may I switch from my individual RCRA permit to a 

standardized permit?

    Where all units in the RCRA permit are eligible for the standardized 
permit, you may request that your individual permit be revoked and 
reissued as a standardized permit, in accordance with Sec. 124.5. Where 
only some of the units in the RCRA permit are eligible for the 
standardized permit, you may request that your individual permit be 
modified to no longer include those units and issue a standardized 
permit for those units in accordance with Sec. 124.204.

                      Issuing a Standardized Permit



Sec. 124.204  What must I do as the Director of the regulatory agency to 

prepare a draft standardized permit?

    (a) You must review the Notice of Intent and supporting information 
submitted by the facility owner or operator.
    (b) You must determine whether the facility is or is not eligible to 
operate under the standardized permit.
    (1) If the facility is eligible for the standardized permit, you 
must propose terms and conditions, if any, to include in a supplemental 
portion. If you determine that these terms and conditions are necessary 
to protect human health and the environment and cannot be imposed, you 
must tentatively deny coverage under the standardized permit.
    (2) If the facility is not eligible for the standardized permit, you 
must tentatively deny coverage under the standardized permit. Cause for 
ineligibility may include, but is not limited to, the following:
    (i) Failure of owner or operator to submit all the information 
required under Sec. 270.275.
    (ii) Information submitted that is required under Sec. 270.275 is 
determined to be inadequate.
    (iii) Facility does not meet the eligibility requirements 
(activities are outside the scope of the standardized permit).
    (iv) Demonstrated history of significant non-compliance with 
applicable requirements.
    (v) Permit conditions cannot ensure protection of human health and 
the environment.
    (c) You must prepare your draft permit decision within 120 days 
after receiving the Notice of Intent and supporting documents from a 
facility owner or operator. Your tentative determination under this 
section to deny or grant coverage under the standardized permit, 
including any proposed site-specific conditions in a supplemental 
portion, constitutes a draft permit decision. You are allowed a one time 
extension of 30 days to prepare the draft permit decision. When the use 
of the 30-day extension is anticipated, you should inform the permit 
applicant during the initial 120-day review period. Reasons for an 
extension may include, but is not limited to, needing to complete review 
of submissions with the Notice of Intent (e.g., closure plans, waste 
analysis plans, for facilities seeking to manage hazardous waste 
generated off-site).
    (d) Many requirements in subpart A of this part apply to processing 
the standardized permit application and preparing your draft permit 
decision. For example, your draft permit decision must be accompanied by 
a statement of basis or fact sheet and must be based on the 
administrative record. In preparing your draft permit decision, the 
following provisions of subpart A of this part apply (subject to the 
following modifications):
    (1) Section 124.1 Purpose and Scope. All paragraphs.
    (2) Section 124.2 Definitions. All paragraphs.
    (3) Section 124.3 Application for a permit. All paragraphs, except 
paragraphs (c), (d), (f), and (g) of this section apply.
    (4) Section 124.4 Consolidation of permit processing. All paragraphs 
apply; however, in the context of the RCRA standardized permit, the 
reference to the public comment period is Sec. 124.208 instead of Sec. 
124.10.
    (5) Section 124.5 Modification, revocation and re-issuance, or 
termination of permits. Not applicable.
    (6) Section 124.6 Draft permits. This section does not apply to the 
RCRA standardized permit; procedures in this subpart apply instead.

[[Page 332]]

    (7) Section 124.7 Statement of basis. The entire section applies.
    (8) Section 124.8 Fact sheet. All paragraphs apply; however, in the 
context of the RCRA standardized permit, the reference to the public 
comment period is Sec. 124.208 instead of Sec. 124.10.
    (9) Section 124.9 Administrative record for draft permits when EPA 
is the permitting authority. All paragraphs apply; however, in the 
context of the RCRA standardized permit, the reference to draft permits 
is Sec. 24.204(c) instead of Sec. 124.6.
    (10) Section 124.10 Public notice of permit actions and public 
comment period. Only Sec. Sec. 124.10(c)(1)(ix) and (c)(1)(x)(A) apply 
to the RCRA standardized permit. Most of Sec. 124.10 does not apply to 
the RCRA standardized permit; Sec. Sec. 124.207, 124.208, and 124.209 
apply instead.



Sec. 124.205  What must I do as the Director of the regulatory agency to 

prepare a final standardized permit?

    As Director of the regulatory agency, you must consider all comments 
received during the public comment period (see Sec. 124.208) in making 
your final permit decision. In addition, many requirements in subpart A 
of this part apply to the public comment period, public hearings, and 
preparation of your final permit decision. In preparing a final permit 
decision, the following provisions of subpart A of this part apply 
(subject to the following modifications):
    (a) Section 124.1 Purpose and Scope. All paragraphs.
    (b) Section 124.2 Definitions. All paragraphs.
    (c) Section 124.11 Public comments and requests for public hearings. 
This section does not apply to the RCRA standardized permit; the 
procedures in Sec. 124.208 apply instead.
    (d) Section 124.12 Public hearings. Paragraphs (b), (c), and (d) 
apply.
    (e) Section 124.13 Obligation to raise issues and provide 
information during the public comment period. The entire section 
applies; however, in the context of the RCRA standardized permit, the 
reference to the public comment period is Sec. 124.208 instead of Sec. 
124.10.
    (f) Section124.14 Reopening of the public comment period. All 
paragraphs apply; however, in the context of the RCRA standardized 
permit, use the following reference: in Sec. 124.14(b)(1) use reference 
to Sec. 124.204 instead of Sec. 124.6; in Sec. 124.14(b)(3) use 
reference to Sec. 124.208 instead of Sec. 124.10; in Sec. 124.14(c) 
use reference to Sec. 124.207 instead of Sec. 124.10.
    (g) Section 124.15 Issuance and effective date of permit. All 
paragraphs apply, however, in the context of the RCRA standardized 
permit, the reference to the public comment period is Sec. 124.208 
instead of Sec. 124.10.
    (h) Section 124.16 Stays of contested permit conditions. All 
paragraphs apply.
    (i) Section 124.17 Response to comments. This section does not apply 
to the RCRA standardized permit; procedures in Sec. 124.209 apply 
instead.
    (j) Section 124.18 Administrative record for final permit when EPA 
is the permitting authority. All paragraphs apply, however, use 
reference to Sec. 124.209 instead of Sec. 124.17.
    (k) Seciton124.19 Appeal of RCRA, UIC, NPDES, and PSD permits. All 
paragraphs apply.
    (l) Section 124.20 Computation of time. All paragraphs apply.



Sec. 124.206  In what situations may I require a facility owner or operator to 

apply for an individual permit?

    (a) Cases where you may determine that a facility is not eligible 
for the standardized permit include, but are not limited to, the 
following:
    (1) The facility does not meet the criteria in Sec. 124.201.
    (2) The facility has a demonstrated history of significant non-
compliance with regulations or permit conditions.
    (3) The facility has a demonstrated history of submitting incomplete 
or deficient permit application information.
    (4) The facility has submitted an incomplete or inadequate materials 
with the Notice of Intent.
    (b) If you determine that a facility is not eligible for the 
standardized permit, you must inform the facility owner or operator that 
they must apply for an individual permit.
    (c) You may require any facility that has a standardized permit to 
apply for and obtain an individual RCRA permit. Any interested person 
may petition

[[Page 333]]

you to take action under this paragraph. Cases where you may require an 
individual RCRA permit include, but are not limited to, the following:
    (1) The facility is not in compliance with the terms and conditions 
of the standardized RCRA permit.
    (2) Circumstances have changed since the time the facility owner or 
operator applied for the standardized permit, so that the facility's 
hazardous waste management practices are no longer appropriately 
controlled under the standardized permit.
    (d) You may require any facility authorized by a standardized permit 
to apply for an individual RCRA permit only if you have notified the 
facility owner or operator in writing that an individual permit 
application is required. You must include in this notice a brief 
statement of the reasons for your decision, a statement setting a 
deadline for the owner or operator to file the application, and a 
statement that, on the effective date of the individual RCRA permit, the 
facility's standardized permit automatically terminates. You may grant 
additional time upon request from the facility owner or operator.
    (e) When you issue an individual RCRA permit to an owner or operator 
otherwise subject to a standardized RCRA permit, the standardized permit 
for their facility will automatically cease to apply on the effective 
date of the individual permit.

 Opportunities for Public Involvement in the Standardized Permit Process



Sec. 124.207  What are the requirements for public notices?

    (a) You, as the Director, must provide public notice of your draft 
permit decision and must provide an opportunity for the public to submit 
comments and request a hearing on that decision. You must provide the 
public notice to:
    (1) The applicant;
    (2) Any other agency which you know has issued or is required to 
issue a RCRA permit for the same facility or activity (including EPA 
when the draft permit is prepared by the State);
    (3) Federal and State agencies with jurisdiction over fish, 
shellfish, and wildlife resources and over coastal zone management 
plans, the Advisory Council on Historic Preservation, State Historic 
Preservation Officers, including any affected States;
    (4) To everyone on the facility mailing list developed according to 
the requirements in Sec. 124.10(c)(1)(ix); and
    (5) To any units of local government having jurisdiction over the 
area where the facility is proposed to be located and to each State 
agency having any authority under State law with respect to the 
construction or operation of the facility.
    (b) You must issue the public notice according to the following 
methods:
    (1) Publication in a daily or weekly major local newspaper of 
general circulation and broadcast over local radio stations;
    (2) When the program is being administered by an approved State, in 
a manner constituting legal notice to the public under State law; and
    (3) Any other method reasonably calculated to give actual notice of 
the draft permit decision to the persons potentially affected by it, 
including press releases or any other forum or medium to elicit public 
participation.
    (c) You must include the following information in the public notice:
    (1) The name and telephone number of the contact person at the 
facility.
    (2) The name and telephone number of your contact office, and a 
mailing address to which people may direct comments, information, 
opinions, or inquiries.
    (3) An address to which people may write to be put on the facility 
mailing list.
    (4) The location where people may view and make copies of the draft 
standardized permit and the Notice of Intent and supporting documents.
    (5) A brief description of the facility and proposed operations, 
including the address or a map (for example, a sketched or copied street 
map) of the facility location on the front page of the notice.
    (6) The date that the facility owner or operator submitted the 
Notice of Intent and supporting documents.

[[Page 334]]

    (d) At the same time that you issue the public notice under this 
section, you must place the draft standardized permit (including both 
the uniform portion and the supplemental portion, if any), the Notice of 
Intent and supporting documents, and the statement of basis or fact 
sheet in a location accessible to the public in the vicinity of the 
facility or at your office.



Sec. 124.208  What are the opportunities for public comments and hearings on 

draft permit decisions?

    (a) The public notice that you issue under Sec. 124.207 must allow 
at least 45 days for people to submit written comments on your draft 
permit decision. This time is referred to as the public comment period. 
You must automatically extend the public comment period to the close of 
any public hearing under this section. The hearing officer may also 
extend the comment period by so stating at the hearing.
    (b) During the public comment period, any interested person may 
submit written comments on the draft permit and may request a public 
hearing. If someone wants to request a public hearing, they must submit 
their request in writing to you. Their request must state the nature of 
the issues they propose to raise during the hearing.
    (c) You must hold a public hearing whenever you receive a written 
notice of opposition to a standardized permit and a request for a 
hearing within the public comment period under paragraph (a) of this 
section. You may also hold a public hearing at your discretion, 
whenever, for instance, such a hearing might clarify one or more issues 
involved in the permit decision.
    (d) Whenever possible, you must schedule a hearing under this 
section at a location convenient to the nearest population center to the 
facility. You must give public notice of the hearing at least 30 days 
before the date set for the hearing. (You may give the public notice of 
the hearing at the same time you provide public notice of the draft 
permit, and you may combine the two notices.)
    (e) You must give public notice of the hearing according to the 
methods in Sec. 124.207(a) and (b). The hearing must be conducted 
according to the procedures in Sec. 124.12(b), (c), and (d).
    (f) In their written comments and during the public hearing, if 
held, interested parties may provide comments on the draft permit 
decision. These comments may include, but are not limited to, the 
facility's eligibility for the standardized permit, the tentative 
supplemental conditions you proposed, and the need for additional 
supplemental conditions.



Sec. 124.209  What are the requirements for responding to comments?

    (a) At the time you issue a final standardized permit, you must also 
respond to comments received during the public comment period on the 
draft permit. Your response must:
    (1) Specify which additional conditions (i.e., those in the 
supplemental portion), if any, you changed in the final permit, and the 
reasons for the change.
    (2) Briefly describe and respond to all significant comments on the 
facility's ability to meet the general requirements (i.e., those terms 
and conditions in the uniform portion) and on any additional conditions 
necessary to protect human health and the environment raised during the 
public comment period or during the hearing.
    (3) Make the comments and responses accessible to the public.
    (b) You may request additional information from the facility owner 
or operator or inspect the facility if you need additional information 
to adequately respond to significant comments or to make decisions about 
conditions you may need to add to the supplemental portion of the 
standardized permit.
    (c) If you are the Director of an EPA permitting agency, you must 
include in the administrative record for your final permit decision any 
documents cited in the response to comments. If new points are raised or 
new material supplied during the public comment period, you may document 
your response to those matters by adding new materials to the 
administrative record.

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Sec. 124.210  May I, as an interested party in the permit process, appeal a 

final standardized permit?

    You may petition for administrative review of the Director's final 
permit decision, including his or her decision that the facility is 
eligible for the standardized permit, according to the procedures of 
Sec. 124.19. However, the terms and conditions of the uniform portion 
of the standardized permit are not subject to administrative review 
under this provision.

                    Maintaining a Standardized Permit



Sec. 124.211  What types of changes may I make to my standardized permit?

    You may make both routine changes, routine changes with prior Agency 
approval, and significant changes. For the purposes of this section:
    (a) ``Routine changes'' are any changes to the standardized permit 
that qualify as a class 1 permit modification (without prior Agency 
approval) under 40 CFR 270.42, Appendix I, and
    (b) ``Routine changes with prior Agency approval'' are for those 
changes to the standardized permit that would qualify as a class 1 
modification with prior agency approval, or a class 2 permit 
modification under 40 CFR 270.42, Appendix I; and
    (c) ``Significant changes'' are any changes to the standardized 
permit that:
    (1) Qualify as a class 3 permit modification under 40 CFR 270.42, 
Appendix I;
    (2) Are not explicitly identified in 40 CFR 270.42, Appendix I; or
    (3) Amend any terms or conditions in the supplemental portion of 
your standardized permit.



Sec. 124.212  What procedures must I follow to make routine changes?

    (a) You can make routine changes to the standardized permit without 
obtaining approval from the Director. However, you must first determine 
whether the routine change you will make amends the information you 
submitted under 40 CFR 270.275 with your Notice of Intent to operate 
under the standardized permit.
    (b) If the routine changes you make amend the information you 
submitted under 40 CFR 270.275 with your Notice of Intent to operate 
under the standardized permit, then before you make the routine changes 
you must:
    (1) Submit to the Director the revised information pursuant to 40 
CFR 270.275(a); and
    (2) Provide notice of the changes to the facility mailing list and 
to state and local governments in accordance with the procedures in 
Sec. 124.10(c)(1)(ix) and (x).



Sec. 124.213  What procedures must I follow to make routine changes with prior 

approval?

    (a) Routine changes to the standardized permit with prior Agency 
approval may only be made with the prior written approval of the 
Director.
    (b) You must also follow the procedures in Sec. 124.212(b)(1)-(2).



Sec. 124.214  What procedures must I follow to make significant changes?

    (a) You must first provide notice of and conduct a public meeting.
    (1) Public Meeting. You must hold a meeting with the public to 
solicit questions from the community and inform the community of your 
proposed modifications to your hazardous waste management activities. 
You must post a sign-in sheet or otherwise provide a voluntary 
opportunity for people attending the meeting to provide their names and 
addresses.
    (2) Public Notice. At least 30 days before you plan to hold the 
meeting, you must issue a public notice in accordance with the 
requirements of Sec. 124.31(d).
    (b) After holding the public meeting, you must submit a modification 
request to the Director that:
    (1) Describes the exact change(s) you want and whether they are 
changes to information you provided under 40 CFR 270.275 or to terms and 
conditions in the supplemental portion of your standardized permit;
    (2) Explain why the modification is needed; and
    (3) Includes a summary of the public meeting under paragraph (a) of 
this section, along with the list of

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attendees and their addresses and copies of any written comments or 
materials they submitted at the meeting.
    (c) Once the Director receives your modification request, he or she 
must make a tentative determination within 120 days to approve or 
disapprove your request. You are allowed a one time extension of 30 days 
to prepare the draft permit decision. When the use of the 30-day 
extension is anticipated, you should inform the permit applicant during 
the initial 120-day review period.
    (d) After the Director makes this tentative determination, the 
procedures in Sec. 124.205 and Sec. Sec. 124.207 through 124.210 for 
processing an initial request for coverage under the standardized permit 
apply to making the final determination on the modification request.



PART 125_CRITERIA AND STANDARDS FOR THE NATIONAL POLLUTANT DISCHARGE 

ELIMINATION SYSTEM--Table of Contents




Subpart A_Criteria and Standards for Imposing Technology-Based Treatment 
          Requirements Under Sections 301(b) and 402 of the Act

Sec.
125.1 Purpose and scope.
125.2 Definitions.
125.3 Technology-based treatment requirements in permits.

   Subpart B_Criteria for Issuance of Permits to Aquaculture Projects

125.10 Purpose and scope.
125.11 Criteria.

Subpart C [Reserved]

Subpart D_Criteria and Standards for Determining Fundamentally Different 
  Factors Under Sections 301(b)(1)(A), 301(b)(2) (A) and (E) of the Act

125.30 Purpose and scope.
125.31 Criteria.
125.32 Method of application.

Subpart E--Criteria for Granting Economic Variances From Best Available 
Technology Economically Achievable Under Section 301(c) of the Act 
[Reserved]

Subpart F--Criteria for Granting Water Quality Related Variances Under 
Section 301(g) of the Act [Reserved]

 Subpart G_Criteria for Modifying the Secondary Treatment Requirements 
               Under Section 301(h) of the Clean Water Act

125.56 Scope and purpose.
125.57 Law governing issuance of a section 301(h) modified permit.
125.58 Definitions.
125.59 General.
125.60 Primary or equivalent treatment requirements.
125.61 Existence of and compliance with applicable water quality 
          standards.
125.62 Attainment or maintenance of water quality which assures 
          protection of public water supplies; assures the protection 
          and propagation of a balanced, indigenous population of 
          shellfish, fish, and wildlife; and allows recreational 
          activities.
125.63 Establishment of a monitoring program.
125.64 Effect of the discharge on other point and nonpoint sources.
125.65 Urban area pretreatment program.
125.66 Toxics control program.
125.67 Increase in effluent volume or amount of pollutants discharged.
125.68 Special conditions for section 301(h) modified permits.

Appendix to Subpart G--Applicant Questionnaire for Modification of 
          Secondary Treatment Requirements

  Subpart H_Criteria for Determining Alternative Effluent Limitations 
                     Under Section 316(a) of the Act

125.70 Purpose and scope.
125.71 Definitions.
125.72 Early screening of applications for section 316(a) variances.
125.73 Criteria and standards for the determination of alternative 
          effluent limitations under section 316(a).

Subpart I_Requirements Applicable to Cooling Water Intake Structures for 
             New Facilities Under Section 316(b) of the Act

125.80 What are the purpose and scope of this subpart?
125.81 Who is subject to this subpart?
125.82 When must I comply with this subpart?
125.83 What special definitions apply to this subpart?
125.84 As an owner or operator of a new facility, what must I do to 
          comply with this subpart?
125.85 May alternative requirements be authorized?

[[Page 337]]

125.86 As an owner or operator of a new facility, what must I collect 
          and submit when I apply for my new or reissued NPDES permit?
125.87 As an owner or operator of a new facility, must I perform 
          monitoring?
125.88 As an owner or operator of a new facility, must I keep records 
          and report?
125.89 As the Director, what must I do to comply with the requirements 
          of this subpart?

Subpart J_Requirements Applicable to Cooling Water Intake Structures for 
      Phase II Existing Facilities Under Section 316(b) of the Act

125.90 What are the purpose and scope of this subpart?
125.91 What is a ``Phase II existing facility''?
125.92 [Reserved]
125.93 What special definitions apply to this subpart?
125.94 How will requirements reflecting best technology available for 
          minimizing adverse environmental impact be established for my 
          Phase II existing facility?
125.95 As an owner or operator of a Phase II existing facility, what 
          must I collect and submit when I apply for my reissued NPDES 
          permit?
125.96 As an owner or operator of a Phase II existing facility, what 
          monitoring must I perform?
125.97 As an owner or operator of a Phase II existing facility, what 
          records must I keep and what information must I report?
125.98 As the Director, what must I do to comply with the requirements 
          of this subpart?
125.99 What are approved design and construction technologies?

Subpart K [Reserved]

Subpart L--Criteria and Standards for Imposing Conditions for the Disposal 
of Sewage Sludge Under Section 405 of the Act [Reserved]

                   Subpart M_Ocean Discharge Criteria

125.120 Scope and purpose.
125.121 Definitions.
125.122 Determination of unreasonable degradation of the marine 
          environment.
125.123 Permit requirements.
125.124 Information required to be submitted by applicant.

Subpart N_Requirements Applicable to Cooling Water Intake Structures for 
 New Offshore Oil and Gas Extraction Facilities Under Section 316(b) of 
                                 the Act

125.130 What are the purpose and scope of this subpart?
125.131 Who is subject to this subpart?
125.132 When must I comply with this subpart?
125.133 What special definitions apply to this subpart?
125.134 As an owner or operator of a new offshore oil and gas extraction 
          facility, what must I do to comply with this subpart?
125.135 May alternative requirements be authorized?
125.136 As an owner or operator of a new offshore oil and gas extraction 
          facility, what must I collect and submit when I apply for my 
          new or reissued NPDES permit?
125.137 As an owner or operator of a new offshore oil and gas extraction 
          facility, must I perform monitoring?
125.138 As an owner or operator of a new offshore oil and gas extraction 
          facility, must I keep records and report?
125.139 As the Director, what must I do to comply with the requirements 
          of this subpart?

    Authority: The Clean Water Act, 33 U.S.C. 1251 et seq., unless 
otherwise noted.

    Source: 44 FR 32948, June 7, 1979, unless otherwise noted.



Subpart A_Criteria and Standards for Imposing Technology-Based Treatment 
          Requirements Under Sections 301(b) and 402 of the Act



Sec. 125.1  Purpose and scope.

    This subpart establishes criteria and standards for the imposition 
of technology-based treatment requirements in permits under section 
301(b) of the Act, including the application of EPA promulgated effluent 
limitations and case-by-case determinations of effluent limitations 
under section 402(a)(1) of the Act.



Sec. 125.2  Definitions.

    For the purposes of this part, any reference to the Act shall mean 
the Clean

[[Page 338]]

Water Act of 1977 (CWA). Unless otherwise noted, the definitions in 
parts 122, 123 and 124 apply to this part.

[45 FR 33512, May 19, 1980]



Sec. 125.3  Technology-based treatment requirements in permits.

    (a) General. Technology-based treatment requirements under section 
301(b) of the Act represent the minimum level of control that must be 
imposed in a permit issued under section 402 of the Act. (See Sec. Sec. 
122.41, 122.42 and 122.44 for a discussion of additional or more 
stringent effluent limitations and conditions.) Permits shall contain 
the following technology-based treatment requirements in accordance with 
the following statutory deadlines;
    (1) For POTW's, effluent limitations based upon:
    (i) Secondary treatment--from date of permit issuance; and
    (ii) The best practicable waste treatment technology--not later than 
July 1, 1983; and
    (2) For dischargers other than POTWs except as provided in Sec. 
122.29(d), effluent limitations requiring:
    (i) The best practicable control technology currently available 
(BPT)--
    (A) For effluent limitations promulgated under Section 304(b) after 
January 1, 1982 and requiring a level of control substantially greater 
or based on fundamentally different control technology than under 
permits for an industrial category issued before such date, compliance 
as expeditiously as practicable but in no case later than three years 
after the date such limitations are promulgated under section 304(b) and 
in no case later than March 31, 1989;
    (B) For effluent limitations established on a case-by-case basis 
based on Best Professional Judgment (BPJ) under Section 402(a)(1)(B) of 
the Act in a permit issued after February 4, 1987, compliance as 
expeditiously as practicable but in no case later than three years after 
the date such limitations are established and in no case later than 
March 31, 1989;
    (C) For all other BPT effluent limitations compliance is required 
from the date of permit issuance.
    (ii) For conventional pollutants, the best conventional pollutant 
control technology (BCT)--
    (A) For effluent limitations promulgated under section 304(b), as 
expeditiously as practicable but in no case later than three years after 
the date such limitations are promulgated under section 304(b), and in 
no case later than March 31, 1989.
    (B) For effluent limitations established on a case-by-case (BPJ) 
basis under section 402(a)(1)(B) of the Act in a permit issued after 
February 4, 1987, compliance as expeditiously as practicable but in no 
case later than three years after the date such limitations are 
established and in no case later than March 31, 1989;
    (iii) For all toxic pollutants referred to in Committee Print No. 
95-30, House Committee on Public Works and Transportation, the best 
available technology economically achievable (BAT)--
    (A) For effluent limitations established under section 304(b), as 
expeditiously as practicable but in no case later than three years after 
the date such limitations are promulgated under section 304(b), and in 
no case later than March 31, 1989.
    (B) For permits issued on a case-by-case (BPJ) basis under section 
402(a)(1)(B) of the Act after February 4, 1987 establishing BAT effluent 
limitations, compliance is required as expeditiously as practicable but 
in no case later than three years after the date such limitations are 
promulgated under section 304(b), and in no case later than March 31, 
1989.
    (iv) For all toxic pollutants other than those listed in Committee 
Print No. 95-30, effluent limitations based on BAT--
    (A) For effluent limitations promulgated under section 304(b) 
compliance is required as expeditiously as practicable, but in no case 
later than three years after the date such limitations are promulgated 
under section 304(b) and in no case later than March 31, 1989.
    (B) For permits issued on a case-by-case (BPJ) basis under Section 
402(a)(1)(B) of the Act after February 4,

[[Page 339]]

1987 establishing BAT effluent limitations, compliance is required as 
expeditiously as practicable but in no case later than 3 years after the 
date such limitations are established and in no case later than March 
31, 1989.
    (v) For all pollutants which are neither toxic nor conventional 
pollutants, effluent limitations based on BAT--
    (A) For effluent limitations promulgated under section 304(b), 
compliance is required as expeditiously as practicable but in no case 
later than 3 years after the date such limitations are established and 
in no case later than March 31, 1989.
    (B) For permits issued on a case-by-case (BPJ) basis under section 
402(a)(1)(B) of the Act after February 4, 1987 establishing BAT effluent 
limitations compliance is required as expeditiously as practicable but 
in no case later than three years after the date such limitations are 
established and in no case later than March 31, 1989.
    (b) Statutory variances and extensions. (1) The following variances 
from technology-based treatment requirements are authorized by the Act 
and may be applied for under Sec. 122.21;
    (i) For POTW's, a section 301(h) marine discharge variance from 
secondary treatment (subpart G);
    (ii) For dischargers other than POTW's;
    (A) A section 301(c) economic variance from BAT (subpart E);
    (B) A section 301(g) water quality related variance from BAT 
(subpart F); and
    (C) A section 316(a) thermal variance from BPT, BCT and BAT (subpart 
H).
    (2) The following extensions of deadlines for compliance with 
technology-based treatment requirements are authorized by the Act and 
may be applied for under Sec. 124.53:
    (i) For POTW's a section 301(i) extension of the secondary treatment 
deadline (subpart J);
    (ii) For dischargers other than POTW's:
    (A) A section 301(i) extension of the BPT deadline (subpart J); and
    (B) A section 301(k) extension of the BAT deadline (subpart C).
    (c) Methods of imposing technology-based treatment requirements in 
permits. Technology-based treatment requirements may be imposed through 
one of the following three methods:
    (1) Application of EPA-promulgated effluent limitations developed 
under section 304 of the Act to dischargers by category or subcategory. 
These effluent limitations are not applicable to the extent that they 
have been remanded or withdrawn. However, in the case of a court remand, 
determinations underlying effluent limitations shall be binding in 
permit issuance proceedings where those determinations are not required 
to be reexamined by a court remanding the regulations. In addition, 
dischargers may seek fundamentally different factors variances from 
these effluent limitations under Sec. 122.21 and subpart D of this 
part.
    (2) On a case-by-case basis under section 402(a)(1) of the Act, to 
the extent that EPA-promulgated effluent limitations are inapplicable. 
The permit writer shall apply the appropriate factors listed in Sec. 
125.3(d) and shall consider:
    (i) The appropriate technology for the category or class of point 
sources of which the applicant is a member, based upon all available 
information; and
    (ii) Any unique factors relating to the applicant.

[Comment: These factors must be considered in all cases, regardless of 
whether the permit is being issued by EPA or an approved State.]

    (3) Through a combination of the methods in paragraphs (d) (1) and 
(2) of this section. Where promulgated effluent limitations guidelines 
only apply to certain aspects of the discharger's operation, or to 
certain pollutants, other aspects or activities are subject to 
regulation on a case-by-case basis in order to carry out the provisions 
of the Act.
    (4) Limitations developed under paragraph (d)(2) of this section may 
be expressed, where appropriate, in terms of toxicity (e.g., ``the 
LC50 for fat head minnow of the effluent from outfall 001 
shall be greater than 25%''). Provided, That is shown that the limits 
reflect the appropriate requirements (for example, technology-based or 
water-quality-based standards) of the Act.
    (d) In setting case-by-case limitations pursuant to Sec. 125.3(c), 
the permit

[[Page 340]]

writer must consider the following factors:
    (1) For BPT requirements: (i) The total cost of application of 
technology in relation to the effluent reduction benefits to be achieved 
from such application;
    (ii) The age of equipment and facilities involved;
    (iii) The process employed;
    (iv) The engineering aspects of the application of various types of 
control techniques;
    (v) Process changes; and
    (vi) Non-water quality environmental impact (including energy 
requirements).
    (2) For BCT requirements: (i) The reasonableness of the relationship 
between the costs of attaining a reduction in effluent and the effluent 
reduction benefits derived;
    (ii) The comparison of the cost and level of reduction of such 
pollutants from the discharge from publicly owned treatment works to the 
cost and level of reduction of such pollutants from a class or category 
of industrial sources;
    (iii) The age of equipment and facilities involved;
    (iv) The process employed;
    (v) The engineering aspects of the application of various types of 
control techniques;
    (vi) Process changes; and
    (vii) Non-water quality environmental impact (including energy 
requirements).
    (3) For BAT requirements: (i) The age of equipment and facilities 
involved;
    (ii) The process employed;
    (iii) The engineering aspects of the application of various types of 
control techniques;
    (iv) Process changes;
    (v) The cost of achieving such effluent reduction; and
    (vi) Non-water quality environmental impact (including energy 
requirements).
    (e) Technology-based treatment requirements are applied prior to or 
at the point of discharge.
    (f) Technology-based treatment requirements cannot be satisfied 
through the use of ``non-treatment'' techniques such as flow 
augmentation and in-stream mechanical aerators. However, these 
techniques may be considered as a method of achieving water quality 
standards on a case-by-case basis when:
    (1) The technology-based treatment requirements applicable to the 
discharge are not sufficient to achieve the standards;
    (2) The discharger agrees to waive any opportunity to request a 
variance under section 301 (c), (g) or (h) of the Act; and
    (3) The discharger demonstrates that such a technique is the 
preferred environmental and economic method to achieve the standards 
after consideration of alternatives such as advanced waste treatment, 
recycle and reuse, land disposal, changes in operating methods, and 
other available methods.
    (g) Technology-based effluent limitations shall be established under 
this subpart for solids, sludges, filter backwash, and other pollutants 
removed in the course of treatment or control of wastewaters in the same 
manner as for other pollutants.
    (h)(1) The Director may set a permit limit for a conventional 
pollutant at a level more stringent than the best conventional pollution 
control technology (BCT), or a limit for a nonconventional pollutant 
which shall not be subject to modification under section 301 (c) or (g) 
of the Act where:
    (i) Effluent limitations guidelines specify the pollutant as an 
indicator for a toxic pollutant, or
    (ii)(A) The limitation reflects BAT-level control of discharges of 
one or more toxic pollutants which are present in the waste stream, and 
a specific BAT limitation upon the toxic pollutant(s) is not feasible 
for economic or technical reasons;
    (B) The permit identifies which toxic pollutants are intended to be 
controlled by use of the limitation; and
    (C) The fact sheet required by Sec. 124.56 sets forth the basis for 
the limitation, including a finding that compliance with the limitation 
will result in BAT-level control of the toxic pollutant discharges 
identified in paragraph (h)(1)(ii)(B) of this section, and a finding 
that it would be economically or technically infeasible to directly 
limit the toxic pollutant(s).

[[Page 341]]

    (2) The Director may set a permit limit for a conventional pollutant 
at a level more stringent than BCT when:
    (i) Effluent limitations guidelines specify the pollutant as an 
indicator for a hazardous substance, or
    (ii)(A) The limitation reflects BAT-level control of discharges (or 
an appropriate level determined under section 301(c) or (g) of the Act) 
of one or more hazardous substance(s) which are present in the waste 
stream, and a specific BAT (or other appropriate) limitation upon the 
hazardous substance(s) is not feasible for economic or technical 
reasons;
    (B) The permit identifies which hazardous substances are intended to 
be controlled by use of the limitation; and
    (C) The fact sheet required by Sec. 124.56 sets forth the basis for 
the limitation, including a finding that compliance with the limitations 
will result in BAT-level (or other appropriate level) control of the 
hazardous substances discharges identified in paragraph (h)(2)(ii)(B) of 
this section, and a finding that it would be economically or technically 
infeasible to directly limit the hazardous substance(s).
    (iii) Hazardous substances which are also toxic pollutants are 
subject to paragraph (h)(1) of this section.
    (3) The Director may not set a more stringent limit under the 
preceding paragraphs if the method of treatment required to comply with 
the limit differs from that which would be required if the toxic 
pollutant(s) or hazardous substance(s) controlled by the limit were 
limited directly.
    (4) Toxic pollutants identified under paragraph (h)(1) of this 
section remain subject to the requirements of Sec. 122.42(a)(1) 
(notification of increased discharges of toxic pollutants above levels 
reported in the application form).

(Clean Water Act, Safe Drinking Water Act, Clean Air Act, Resource 
Conservation and Recovery Act: 42 U.S.C. 6905, 6912, 6925, 6927, 6974)

[44 FR 32948, June 7, 1979, as amended at 45 FR 33512, May 19, 1980; 48 
FR 14293, Apr. 1, 1983; 49 FR 38052, Sept. 26, 1984; 50 FR 6941, Feb. 
19, 1985; 54 FR 257, Jan. 4, 1989]



   Subpart B_Criteria for Issuance of Permits to Aquaculture Projects



Sec. 125.10  Purpose and scope.

    (a) These regulations establish guidelines under sections 318 and 
402 of the Act for approval of any discharge of pollutants associated 
with an aquaculture project.
    (b) The regulations authorize, on a selective basis, controlled 
discharges which would otherwise be unlawful under the Act in order to 
determine the feasibility of using pollutants to grow aquatic organisms 
which can be harvested and used beneficially. EPA policy is to encourage 
such projects, while at the same time protecting other beneficial uses 
of the waters.
    (c) Permits issued for discharges into aquaculture projects under 
this subpart are NPDES permits and are subject to the applicable 
requirements of parts 122, 123 and 124. Any permit shall include such 
conditions (including monitoring and reporting requirements) as are 
necessary to comply with those parts. Technology-based effluent 
limitations need not be applied to discharges into the approved project 
except with respect to toxic pollutants.



Sec. 125.11  Criteria.

    (a) No NPDES permit shall be issued to an aquaculture project 
unless:
    (1) The Director determines that the aquaculture project:
    (i) Is intended by the project operator to produce a crop which has 
significant direct or indirect commercial value (or is intended to be 
operated for research into possible production of such a crop); and
    (ii) Does not occupy a designated project area which is larger than 
can be economically operated for the crop under cultivation or than is 
necessary for research purposes.
    (2) The applicant has demonstrated, to the satisfaction of the 
Director, that the use of the pollutant to be discharged to the 
aquaculture project will result in an increased harvest of organisms 
under culture over what would naturally occur in the area;
    (3) The applicant has demonstrated, to the satisfaction of the 
Director, that if the species to be cultivated in the aquaculture 
project is not indigenous

[[Page 342]]

to the immediate geographical area, there will be minimal adverse 
effects on the flora and fauna indigenous to the area, and the total 
commercial value of the introduced species is at least equal to that of 
the displaced or affected indigenous flora and fauna;
    (4) The Director determines that the crop will not have a 
significant potential for human health hazards resulting from its 
consumption;
    (5) The Director determines that migration of pollutants from the 
designated project area to water outside of the aquaculture project will 
not cause or contribute to a violation of water quality standards or a 
violation of the applicable standards and limitations applicable to the 
supplier of the pollutant that would govern if the aquaculture project 
were itself a point source. The approval of an aquaculture project shall 
not result in the enlargement of a pre-existing mixing zone area beyond 
what had been designated by the State for the original discharge.
    (b) No permit shall be issued for any aquaculture project in 
conflict with a plan or an amendment to a plan approved under section 
208(b) of the Act.
    (c) No permit shall be issued for any aquaculture project located in 
the territorial sea, the waters of the contiguous zone, or the oceans, 
except in conformity with guidelines issued under section 403(c) of the 
Act.
    (d) Designated project areas shall not include a portion of a body 
of water large enough to expose a substantial portion of the indigenous 
biota to the conditions within the designated project area. For example, 
the designated project area shall not include the entire width of a 
watercourse, since all organisms indigenous to that watercourse might be 
subjected to discharges of pollutants that would, except for the 
provisions of section 318 of the Act, violate section 301 of the Act.
    (e) Any modifications caused by the construction or creation of a 
reef, barrier or containment structure shall not unduly alter the tidal 
regimen of an estuary or interfere with migrations of unconfined aquatic 
species.

[Comment: Any modifications described in this paragraph which result in 
the discharge of dredged or fill material into navigable waters may be 
subject to the permit requirements of section 404 of the Act.]

    (f) Any pollutants not required by or beneficial to the aquaculture 
crop shall not exceed applicable standards and limitations when entering 
the designated project area.

Subpart C [Reserved]



Subpart D_Criteria and Standards for Determining Fundamentally Different 
  Factors Under Sections 301(b)(1)(A), 301(b)(2) (A) and (E) of the Act



Sec. 125.30  Purpose and scope.

    (a) This subpart establishes the criteria and standards to be used 
in determining whether effluent limitations alternative to those 
required by promulgated EPA effluent limitations guidelines under 
sections 301 and 304 of the Act (hereinafter referred to as ``national 
limits'') should be imposed on a discharger because factors relating to 
the discharger's facilities, equipment, processes or other factors 
related to the discharger are fundamentally different from the factors 
considered by EPA in development of the national limits. This subpart 
applies to all national limitations promulgated under sections 301 and 
304 of the Act, except for the BPT limits contained in 40 CFR 423.12 
(steam electric generating point source category).
    (b) In establishing national limits, EPA takes into account all the 
information it can collect, develop and solicit regarding the factors 
listed in sections 304(b) and 304(g) of the Act. In some cases, however, 
data which could affect these national limits as they apply to a 
particular discharge may not be available or may not be considered 
during their development. As a result, it may be necessary on a case-by-
case basis to adjust the national limits, and make them either more or 
less stringent as they apply to certain dischargers within an industrial 
category or subcategory. This will only be done if data specific to that 
discharger indicates it presents factors fundamentally different from 
those considered by EPA in developing the limit at issue. Any

[[Page 343]]

interested person believing that factors relating to a discharger's 
facilities, equipment, processes or other facilities related to the 
discharger are fundamentally different from the factors considered 
during development of the national limits may request a fundamentally 
different factors variance under Sec. 122.21(l)(1). In addition, such a 
variance may be proposed by the Director in the draft permit.

(Secs. 301, 304, 306, 307, 308, and 501 of the Clean Water Act (the 
Federal Water Pollution Control Act Amendments of 1972, Pub. L. 92-500 
as amended by the Clean Water Act of 1977, Pub. L. 95-217 (the ``Act''); 
Clean Water Act, Safe Drinking Water Act, Clean Air Act, Resource 
Conservation and Recovery Act: 42 U.S.C. 6905, 6912, 6925, 6927, 6974)

[44 FR 32948, June 7, 1979, as amended at 45 FR 33512, May 19, 1980; 46 
FR 9460, Jan. 28, 1981; 47 FR 52309, Nov. 19, 1982; 48 FR 14293, Apr. 1, 
1983]



Sec. 125.31  Criteria.

    (a) A request for the establishment of effluent limitations under 
this subpart (fundamentally different factors variance) shall be 
approved only if:
    (1) There is an applicable national limit which is applied in the 
permit and specifically controls the pollutant for which alternative 
effluent limitations or standards have been requested; and
    (2) Factors relating to the discharge controlled by the permit are 
fundamentally different from those considered by EPA in establishing the 
national limits; and
    (3) The request for alternative effluent limitations or standards is 
made in accordance with the procedural requirements of part 124.
    (b) A request for the establishment of effluent limitations less 
stringent than those required by national limits guidelines shall be 
approved only if:
    (1) The alternative effluent limitation or standard requested is no 
less stringent than justified by the fundamental difference; and
    (2) The alternative effluent limitation or standard will ensure 
compliance with sections 208(e) and 301(b)(1)(C) of the Act; and
    (3) Compliance with the national limits (either by using the 
technologies upon which the national limits are based or by other 
control alternatives) would result in:
    (i) A removal cost wholly out of proportion to the removal cost 
considered during development of the national limits; or
    (ii) A non-water quality environmental impact (including energy 
requirements) fundamentally more adverse than the impact considered 
during development of the national limits.
    (c) A request for alternative limits more stringent than required by 
national limits shall be approved only if:
    (1) The alternative effluent limitation or standard requested is no 
more stringent than justified by the fundamental difference; and
    (2) Compliance with the alternative effluent limitation or standard 
would not result in:
    (i) A removal cost wholly out of proportion to the removal cost 
considered during development of the national limits; or
    (ii) A non-water quality environmental impact (including energy 
requirements) fundamentally more adverse than the impact considered 
during development of the national limits.
    (d) Factors which may be considered fundamentally different are:
    (1) The nature or quality of pollutants contained in the raw waste 
load of the applicant's process wastewater;

[Comment: (1) In determining whether factors concerning the discharger 
are fundamentally different, EPA will consider, where relevant, the 
applicable development document for the national limits, associated 
technical and economic data collected for use in developing each 
respective national limit, records of legal proceedings, and written and 
printed documentation including records of communication, etc., relevant 
to the development of respective national limits which are kept on 
public file by EPA.
    (2) Waste stream(s) associated with a discharger's process 
wastewater which were not considered in the development of the national 
limits will not ordinarily be treated as fundamentally different under 
paragraph (a) of this section. Instead, national limits should be 
applied to the other streams, and the unique stream(s) should be subject 
to limitations based on section 402(a)(1) of the Act. See Sec. 
125.2(c)(2).]

    (2) The volume of the discharger's process wastewater and effluent 
discharged;

[[Page 344]]

    (3) Non-water quality environmental impact of control and treatment 
of the discharger's raw waste load;
    (4) Energy requirements of the application of control and treatment 
technology;
    (5) Age, size, land availability, and configuration as they relate 
to the discharger's equipment or facilities; processes employed; process 
changes; and engineering aspects of the application of control 
technology;
    (6) Cost of compliance with required control technololgy.
    (e) A variance request or portion of such a request under this 
section shall not be granted on any of the following grounds:
    (1) The infeasibility of installing the required waste treatment 
equipment within the time the Act allows.

[Comment: Under this section a variance request may be approved if it is 
based on factors which relate to the discharger's ability ultimately to 
achieve national limits but not if it is based on factors which merely 
affect the discharger's ability to meet the statutory deadlines of 
sections 301 and 307 of the Act such as labor difficulties, construction 
schedules, or unavailability of equipment.]

    (2) The assertion that the national limits cannot be achieved with 
the appropriate waste treatment facilities installed, if such assertion 
is not based on factor(s) listed in paragraph (d) of this section;

[Comment: Review of the Administrator's action in promulgating national 
limits is available only through the judicial review procedures set 
forth in section 509(b) of the Act.]

    (3) The discharger's ability to pay for the required waste 
treatment; or
    (4) The impact of a discharge on local receiving water quality.
    (f) Nothing in this section shall be construed to impair the right 
of any State or locality under section 510 of the Act to impose more 
stringent limitations than those required by Federal law.



Sec. 125.32  Method of application.

    (a) A written request for a variance under this subpart D shall be 
submitted in duplicate to the Director in accordance with Sec. Sec. 
122.21(m)(1) and 124.3 of this chapter.
    (b) The burden is on the person requesting the variance to explain 
that:
    (1) Factor(s) listed in Sec. 125.31(b) regarding the discharger's 
facility are fundamentally different from the factors EPA considered in 
establishing the national limits. The requester should refer to all 
relevant material and information, such as the published guideline 
regulations development document, all associated technical and economic 
data collected for use in developing each national limit, all records of 
legal proceedings, and all written and printed documentation including 
records of communication, etc., relevant to the regulations which are 
kept on public file by the EPA;
    (2) The alternative limitations requested are justified by the 
fundamental difference alleged in paragraph (b)(1) of this section; and
    (3) The appropriate requirements of Sec. 125.31 have been met.

[44 FR 32948, June 7, 1979, as amended at 65 FR 30913, May 15, 2000]

Subpart E--Criteria for Granting Economic Variances From Best Available 
Technology Economically Achievable Under Section 301(c) of the Act 
[Reserved]

Subpart F--Criteria for Granting Water Quality Related Variances Under 
Section 301(g) of the Act [Reserved]



 Subpart G_Criteria for Modifying the Secondary Treatment Requirements 
               Under Section 301(h) of the Clean Water Act

    Authority: Clean Water Act, as amended by the Clean Water Act of 
1977, 33 U.S.C. 1251 et seq., unless otherwise noted.

    Source: 59 FR 40658, Aug. 9, 1994, unless otherwise noted.



Sec. 125.56  Scope and purpose.

    This subpart establishes the criteria to be applied by EPA in acting 
on section 301(h) requests for modifications

[[Page 345]]

to the secondary treatment requirements. It also establishes special 
permit conditions which must be included in any permit incorporating a 
section 301(h) modification of the secondary treatment requirements 
(``section 301(h) modified permit'').



Sec. 125.57  Law governing issuance of a section 301(h) modified permit.

    (a) Section 301(h) of the Clean Water Act provides that:

    Administrator, with the concurrence of the State, may issue a permit 
under section 402 which modifies the requirements of paragraph (b)(1)(B) 
of this section with respect to the discharge of any pollutant from a 
publicly owned treatment works into marine waters, if the applicant 
demonstrates to the satisfaction of the Administrator that--
    (1) There is an applicable water quality standard specific to the 
pollutant for which the modification is requested, which has been 
identified under section 304(a)(6) of this Act;
    (2) The discharge of pollutants in accordance with such modified 
requirements will not interfere, alone or in combination with pollutants 
from other sources, with the attainment or maintenance of that water 
quality which assures protection of public water supplies and protection 
and propagation of a balanced indigenous population of shellfish, fish, 
and wildlife, and allows recreational activities, in and on the water;
    (3) The applicant has established a system for monitoring the impact 
of such discharge on a representative sample of aquatic biota, to the 
extent practicable, and the scope of such monitoring is limited to 
include only those scientific investigations which are necessary to 
study the effects of the proposed discharge;
    (4) Such modified requirements will not result in any additional 
requirements on any other point or nonpoint source;
    (5) All applicable pretreatment requirements for sources introducing 
waste into such treatment works will be enforced;
    (6) In the case of any treatment works serving a population of 
50,000 or more, with respect to any toxic pollutant introduced into such 
works by an industrial discharger for which pollutant there is no 
applicable pretreatment requirement in effect, sources introducing waste 
into such works are in compliance with all applicable pretreatment 
requirements, the applicant will enforce such requirements, and the 
applicant has in effect a pretreatment program which, in combination 
with the treatment of discharges from such works, removes the same 
amount of such pollutant as would be removed if such works were to apply 
secondary treatment to discharges and if such works had no pretreatment 
program with respect to such pollutant;
    (7) To the extent practicable, the applicant has established a 
schedule of activities designed to eliminate the entrance of toxic 
pollutants from nonindustrial sources into such treatment works;
    (8) There will be no new or substantially increased discharges from 
the point source of the pollutant to which the modification applies 
above that volume of discharge specified in the permit;
    (9) The applicant at the time such modification becomes effective 
will be discharging effluent which has received at least primary or 
equivalent treatment and which meets the criteria established under 
section 304(a)(1) of this Act after initial mixing in the waters 
surrounding or adjacent to the point at which such effluent is 
discharged.
    For the purposes of this section, the phrase ``the discharge of any 
pollutant into marine waters'' refers to a discharge into deep waters of 
the territorial sea or the waters of the contiguous zone, or into saline 
estuarine waters where there is strong tidal movement and other 
hydrological and geological characteristics which the Administrator 
determines necessary to allow compliance with paragraph (2) of this 
section, and section 101(a)(2) of this Act. For the purposes of 
paragraph (9), ``primary or equivalent treatment'' means treatment by 
screening, sedimentation, and skimming adequate to remove at least 30 
percent of the biological oxygen demanding material and of the suspended 
solids in the treatment works influent, and disinfection, where 
appropriate. A municipality which applies secondary treatment shall be 
eligible to receive a permit pursuant to this subsection which modifies 
the requirements of paragraph (b)(1)(B) of this section with respect to 
the discharge of any pollutant from any treatment works owned by such 
municipality into marine waters. No permit issued under this subsection 
shall authorize the discharge of sewage sludge into marine waters. In 
order for a permit to be issued under this subsection for the discharge 
of a pollutant into marine waters, such marine waters must exhibit 
characteristics assuring that water providing dilution does not contain 
significant amounts of previously discharged effluent from such 
treatment works. No permit issued under this subsection shall authorize 
the discharge of any pollutant into saline estuarine waters which at the 
time of application do not support a balanced indigenous population of 
shellfish, fish, and wildlife, or allow recreation in and on the waters 
or which exhibit ambient water quality below applicable water quality 
standards adopted for the protection of public water supplies, 
shellfish, fish, and wildlife or recreational activities or such other 
standards necessary to assure

[[Page 346]]

support and protection of such uses. The prohibition contained in the 
preceding sentence shall apply without regard to the presence or absence 
of a causal relationship between such characteristics and the 
applicant's current or proposed discharge. Notwithstanding any other 
provisions of this subsection, no permit may be issued under this 
subsection for discharge of a pollutant into the New York Bight Apex 
consisting of the ocean waters of the Atlantic Ocean westward of 73 
degrees 30 minutes west longitude and northward of 40 degrees 10 minutes 
north latitude.

    (b) Section 301(j)(1) of the Clean Water Act provides that:

    Any application filed under this section for a modification of the 
provisions of--
    (A) subsection (b)(1)(B) under subsection (h) of this section shall 
be filed not later than the 365th day which begins after the date of 
enactment of the Municipal Wastewater Treatment Construction Grant 
Amendments of 1981, except that a publicly owned treatment works which 
prior to December 31, 1982, had a contractual arrangement to use a 
portion of the capacity of an ocean outfall operated by another publicly 
owned treatment works which has applied for or received modification 
under subsection (h) may apply for a modification of subsection (h) in 
its own right not later than 30 days after the date of the enactment of 
the Water Quality Act of 1987.

    (c) Section 22(e) of the Municipal Wastewater Treatment Construction 
Grant Amendments of 1981, Public Law 97-117, provides that:

    The amendments made by this section shall take effect on the date of 
enactment of this Act except that no applicant, other than the city of 
Avalon, California, who applies after the date of enactment of this Act 
for a permit pursuant to subsection (h) of section 301 of the Federal 
Water Pollution Control Act which modifies the requirements of 
subsection (b)(1)(B) of section 301 of such Act shall receive such 
permit during the one-year period which begins on the date of enactment 
of this Act.

    (d) Section 303(b)(2) of the Water Quality Act, Public Law 100-4, 
provides that:

    Section 301(h)(3) shall only apply to modifications and renewals of 
modifications which are tentatively or finally approved after the date 
of the enactment of this Act.

    (e) Section 303(g) of the Water Quality Act provides that:

    The amendments made to sections 301(h) and (h)(2), as well as 
provisions of (h)(6) and (h)(9), shall not apply to an application for a 
permit under section 301(h) of the Federal Water Pollution Control Act 
which has been tentatively or finally approved by the Administrator 
before the date of the enactment of this Act; except that such 
amendments shall apply to all renewals of such permits after such date 
of enactment.



Sec. 125.58  Definitions.

    For the purpose of this subpart:
    (a) Administrator means the EPA Administrator or a person designated 
by the EPA Administrator.
    (b) Altered discharge means any discharge other than a current 
discharge or improved discharge, as defined in this regulation.
    (c) Applicant means an applicant for a new or renewed section 301(h) 
modified permit. Large applicants have populations contributing to their 
POTWs equal to or more than 50,000 people or average dry weather flows 
of 5.0 million gallons per day (mgd) or more; small applicants have 
contributing populations of less than 50,000 people and average dry 
weather flows of less than 5.0 mgd. For the purposes of this definition 
the contributing population and flows shall be based on projections for 
the end of the five-year permit term. Average dry weather flows shall be 
the average daily total discharge flows for the maximum month of the dry 
weather season.
    (d) Application means a final application previously submitted in 
accordance with the June 15, 1979, section 301(h) regulations (44 FR 
34784); an application submitted between December 29, 1981, and December 
29, 1982; or a section 301(h) renewal application submitted in 
accordance with these regulations. It does not include a preliminary 
application submitted in accordance with the June 15, 1979, section 
301(h) regulations.
    (e) Application questionnaire means EPA's ``Applicant Questionnaire 
for Modification of Secondary Treatment Requirements,'' published as an 
appendix to this subpart.
    (f) Balanced indigenous population means an ecological community 
which:
    (1) Exhibits characteristics similar to those of nearby, healthy 
communities existing under comparable but unpolluted environmental 
conditions; or

[[Page 347]]

    (2) May reasonably be expected to become re-established in the 
polluted water body segment from adjacent waters if sources of pollution 
were removed.
    (g) Categorical pretreatment standard means a standard promulgated 
by EPA under 40 CFR Chapter I, Subchapter N.
    (h) Current discharge means the volume, composition, and location of 
an applicant's discharge at the time of permit application.
    (i) Improved discharge means the volume, composition, and location 
of an applicant's discharge following:
    (1) Construction of planned outfall improvements, including, without 
limitation, outfall relocation, outfall repair, or diffuser 
modification; or
    (2) Construction of planned treatment system improvements to 
treatment levels or discharge characteristics; or
    (3) Implementation of a planned program to improve operation and 
maintenance of an existing treatment system or to eliminate or control 
the introduction of pollutants into the applicant's treatment works.
    (j) Industrial discharger or industrial source means any source of 
nondomestic pollutants regulated under section 307(b) or (c) of the 
Clean Water Act which discharges into a POTW.
    (k) Modified discharge means the volume, composition, and location 
of the discharge proposed by the applicant for which a modification 
under section 301(h) of the Act is requested. A modified discharge may 
be a current discharge, improved discharge, or altered discharge.
    (l) New York Bight Apex means the ocean waters of the Atlantic Ocean 
westward of 73 degrees 30 minutes west longitude and northward of 40 
degrees 10 minutes north latitude.
    (m) Nonindustrial source means any source of pollutants which is not 
an industrial source.
    (n) Ocean waters means those coastal waters landward of the baseline 
of the territorial seas, the deep waters of the territorial seas, or the 
waters of the contiguous zone. The term ``ocean waters'' excludes saline 
estuarine waters.
    (o) Permittee means an NPDES permittee with an effective section 
301(h) modified permit.
    (p) Pesticides means demeton, guthion, malathion, mirex, 
methoxychlor, and parathion.
    (q) Pretreatment means the reduction of the amount of pollutants, 
the elimination of pollutants, or the alteration of the nature of 
pollutant properties in wastewater prior to or in lieu of discharging or 
otherwise introducing such pollutants into a POTW. The reduction or 
alteration may be obtained by physical, chemical, or biological 
processes, process changes, or by other means, except as prohibited by 
40 CFR part 403.
    (r) Primary or equivalent treatment for the purposes of this subpart 
means treatment by screening, sedimentation, and skimming adequate to 
remove at least 30 percent of the biochemical oxygen demanding material 
and of the suspended solids in the treatment works influent, and 
disinfection, where appropriate.
    (s) Public water supplies means water distributed from a public 
water system.
    (t) Public water system means a system for the provision to the 
public of piped water for human consumption, if such system has at least 
fifteen (15) service connections or regularly serves at least twenty-
five (25) individuals. This term includes: (1) Any collection, 
treatment, storage, and distribution facilities under the control of the 
operator of the system and used primarily in connection with the system, 
and (2) Any collection or pretreatment storage facilities not under the 
control of the operator of the system which are used primarily in 
connection with the system.
    (u) Publicly owned treatment works or POTW means a treatment works, 
as defined in section 212(2) of the Act, which is owned by a State, 
municipality, or intermunicipal or interstate agency.
    (v) Saline estuarine waters means those semi-enclosed coastal waters 
which have a free connection to the territorial sea, undergo net seaward 
exchange with ocean waters, and have salinities comparable to those of 
the ocean. Generally, these waters are near the mouth of estuaries and 
have cross-sectional annual mean salinities greater than twenty-five 
(25) parts per thousand.

[[Page 348]]

    (w) Secondary removal equivalency means that the amount of a toxic 
pollutant removed by the combination of the applicant's own treatment of 
its influent and pretreatment by its industrial users is equal to or 
greater than the amount of the toxic pollutant that would be removed if 
the applicant were to apply secondary treatment to its discharge where 
the discharge has not undergone pretreatment by the applicant's 
industrial users.
    (x) Secondary treatment means the term as defined in 40 CFR part 
133.
    (y) Shellfish, fish, and wildlife means any biological population or 
community that might be adversely affected by the applicant's modified 
discharge.
    (z) Stressed waters means those ocean waters for which an applicant 
can demonstrate to the satisfaction of the Administrator, that the 
absence of a balanced indigenous population is caused solely by human 
perturbations other than the applicant's modified discharge.
    (aa) Toxic pollutants means those substances listed in 40 CFR 
401.15.
    (bb) Water quality criteria means scientific data and guidance 
developed and periodically updated by EPA under section 304(a)(1) of the 
Clean Water Act, which are applicable to marine waters.
    (cc) Water quality standards means applicable water quality 
standards which have been approved, left in effect, or promulgated under 
section 303 of the Clean Water Act.
    (dd) Zone of initial dilution (ZID) means the region of initial 
mixing surrounding or adjacent to the end of the outfall pipe or 
diffuser ports, provided that the ZID may not be larger than allowed by 
mixing zone restrictions in applicable water quality standards.



Sec. 125.59  General.

    (a) Basis for application. An application under this subpart shall 
be based on a current, improved, or altered discharge into ocean waters 
or saline estuarine waters.
    (b) Prohibitions. No section 301(h) modified permit shall be issued:
    (1) Where such issuance would not assure compliance with all 
applicable requirements of this subpart and part 122;
    (2) For the discharge of sewage sludge;
    (3) Where such issuance would conflict with applicable provisions of 
State, local, or other Federal laws or Executive Orders. This includes 
compliance with the Coastal Zone Management Act of 1972, as amended, 16 
U.S.C. 1451 et seq.; the Endangered Species Act of 1973, as amended, 16 
U.S.C. 1531 et seq.; and Title III of the Marine Protection, Research 
and Sanctuaries Act, as amended, 16 U.S.C. 1431 et seq.;
    (4) Where the discharge of any pollutant enters into saline 
estuarine waters which at the time of application do not support a 
balanced indigenous population of shellfish, fish, and wildlife, or 
allow recreation in and on the waters or which exhibit ambient water 
quality below applicable water quality standards adopted for the 
protection of public water supplies, shellfish, fish, and wildlife or 
recreational activities or such other standards necessary to assure 
support and protection of such uses. The prohibition contained in the 
preceding sentence shall apply without regard to the presence or absence 
of a causal relationship between such characteristics and the 
applicant's current or proposed discharge; or
    (5) Where the discharge of any pollutant is into the New York Bight 
Apex.
    (c) Applications. Each applicant for a modified permit under this 
subpart shall submit an application to EPA signed in compliance with 40 
CFR part 122, subpart B, which shall contain:
    (1) A signed, completed NPDES Application Standard form A, parts I, 
II, III;
    (2) A completed Application Questionnaire;
    (3) The certification in accordance with 40 CFR 122.22(d);
    (4) In addition to the requirements of Sec. 125.59(c) (1) through 
(3), applicants for permit renewal shall support continuation of the 
modification by supplying to EPA the results of studies and monitoring 
performed in accordance with Sec. 125.63 during the life of the permit. 
Upon a demonstration meeting the statutory criteria and requirements of 
this subpart, the permit may be renewed under the applicable procedures 
of 40 CFR part 124.

[[Page 349]]

    (d) Revisions to applications. (1) POTWs which submitted 
applications in accordance with the June 15, 1979, regulations (44 FR 
34784) may revise their applications one time following a tentative 
decision to propose changes to treatment levels and/or outfall and 
diffuser location and design in accordance with Sec. 125.59(f)(2)(i); 
and
    (2) Other applicants may revise their applications one time 
following a tentative decision to propose changes to treatment levels 
and/or outfall and diffuser location and design in accordance with Sec. 
125.59(f)(2)(i). Revisions by such applicants which propose downgrading 
treatment levels and/or outfall and diffuser location and design must be 
justified on the basis of substantial changes in circumstances beyond 
the applicant's control since the time of application submission.
    (3) Applicants authorized or requested to submit additional 
information under Sec. 125.59(g) may submit a revised application in 
accordance with Sec. 125.59(f)(2)(ii) where such additional information 
supports changes in proposed treatment levels and/or outfall location 
and diffuser design. The opportunity for such revision shall be in 
addition to the one-time revision allowed under Sec. 125.59(d) (1) and 
(2).
    (4) POTWs which revise their applications must:
    (i) Modify their NPDES form and Application Questionnaire as needed 
to ensure that the information filed with their application is correct 
and complete;
    (ii) Provide additional analysis and data as needed to demonstrate 
compliance with this subpart;
    (iii) Obtain new State determinations under Sec. Sec. 125.61(b)(2) 
and 125.64(b); and
    (iv) Provide the certification described in paragraph (c)(3) of this 
section.
    (5) Applications for permit renewal may not be revised.
    (e) Submittal of additional information to demonstrate compliance 
with Sec. Sec. 125.60 and 125.65. (1) On or before the deadline 
established in paragraph (f)(3) of this section, applicants shall submit 
a letter of intent to demonstrate compliance with Sec. Sec. 125.60 and 
125.65. The letter of intent is subject to approval by the Administrator 
based on the requirements of this paragraph and paragraph (f)(3) of this 
section. The letter of intent shall consist of the following:
    (i) For compliance with Sec. 125.60: (A) A description of the 
proposed treatment system which upgrades treatment to satisfy the 
requirements of Sec. 125.60.
    (B) A project plan, including a schedule for data collection and for 
achieving compliance with Sec. 125.60. The project plan shall include 
dates for design and construction of necessary facilities, submittal of 
influent/effluent data, and submittal of any other information necessary 
to demonstrate compliance with Sec. 125.60. The Administrator will 
review the project plan and may require revisions prior to authorizing 
submission of the additional information.
    (ii) For compliance with Sec. 125.65: (A) A determination of what 
approach will be used to achieve compliance with Sec. 125.65.
    (B) A project plan for achieving compliance. The project plan shall 
include any necessary data collection activities, submittal of 
additional information, and/or development of appropriate pretreatment 
limits to demonstrate compliance with Sec. 125.65. The Administrator 
will review the project plan and may require revisions prior to 
submission of the additional information.
    (iii) POTWs which submit additional information must:
    (A) Modify their NPDES form and Application Questionnaire as needed 
to ensure that the information filed with their application is correct 
and complete;
    (B) Obtain new State determinations under Sec. Sec. 125.61(b)(2) 
and 125.64(b); and
    (C) Provide the certification described in paragraph (c)(3) of this 
section.
    (2) The information required under this paragraph must be submitted 
in accordance with the schedules in Sec. 125.59(f)(3)(ii). If the 
applicant does not meet these schedules for compliance, EPA may deny the 
application on that basis.
    (f) Deadlines and distribution--(1) Applications.(i) The application 
for an original 301(h) permit for POTWs which directly discharges 
effluent into saline

[[Page 350]]

waters shall be submitted to the appropriate EPA Regional Administrator 
no later than December 29, 1982.
    (ii) The application for renewal of a 301(h) modified permit shall 
be submitted no less than 180 days prior to the expiration of the 
existing permit, unless permission for a later date has been granted by 
the Administrator. (The Administrator shall not grant permission for 
applications to be submitted later than the expiration date of the 
existing permit.)
    (iii) A copy of the application shall be provided to the State and 
interstate agency(s) authorized to provide certification/concurrence 
under Sec. Sec. 124.53 through 124.55 on or before the date the 
application is submitted to EPA.
    (2) Revisions to Applications. (i) Applicants desiring to revise 
their applications under Sec. 125.59 (d)(1) or (d)(2) must:
    (A) Submit to the appropriate Regional Administrator a letter of 
intent to revise their application either within 45 days of the date of 
EPA's tentative decision on their original application or within 45 days 
of November 26, 1982, whichever is later. Following receipt by EPA of a 
letter of intent, further EPA proceedings on the tentative decision 
under 40 CFR part 124 will be stayed.
    (B) Submit the revised application as described for new applications 
in Sec. 125.59(f)(1) either within one year of the date of EPA's 
tentative decision on their original application or within one year of 
November 26, 1982, if a tentative decision has already been made, 
whichever is later.
    (ii) Applicants desiring to revise their applications under Sec. 
125.59(d)(3) must submit the revised application as described for new 
applications in Sec. 125.59(f)(1) concurrent with submission of the 
additional information under Sec. 125.59(g).
    (3) Deadline for additional information to demonstrate compliance 
with Sec. Sec. 125.60 and 125.65.
    (i) A letter of intent required under Sec. 125.59(e)(1) must be 
submitted by the following dates: for permittees with 301(h) 
modifications or for applicants to which a tentative or final decision 
has been issued, November 7, 1994; for all others, within 90 days after 
the Administrator issues a tentative decision on an application. 
Following receipt by EPA of a letter of intent containing the 
information required in Sec. 125.59(e)(1), further EPA proceedings on 
the tentative decision under 40 CFR part 124 will be stayed.
    (ii) The project plan submitted under Sec. 125.59(e)(1) shall 
ensure that the applicant meets all the requirements of Sec. Sec. 
125.60 and 125.65 by the following deadlines:
    (A) By August 9, 1996 for applicants that are not grandfathered 
under Sec. 125.59(j).
    (B) At the time of permit renewal or by August 9, 1996, whichever is 
later, for applicants that are grandfathered under Sec. 125.59(j).
    (4) State determination deadline. State determinations, as required 
by Sec. Sec. 125.61(b)(2) and 125.64(b) shall be filed by the applicant 
with the appropriate Regional Administrator no later than 90 days after 
submission of the revision to the application or additional information 
to EPA. Extensions to this deadline may be provided by EPA upon request. 
However, EPA will not begin review of the revision to the application or 
additional information until a favorable State determination is received 
by EPA. Failure to provide the State determination within the timeframe 
required by this paragraph (f)(4) is a basis for denial of the 
application.
    (g)(1) The Administrator may authorize or request an applicant to 
submit additional information by a specified date not to exceed one year 
from the date of authorization or request.
    (2) Applicants seeking authorization to submit additional 
information on current/modified discharge characteristics, water 
quality, biological conditions or oceanographic characteristics must:
    (i) Demonstrate that they made a diligent effort to provide such 
information with their application and were unable to do so, and
    (ii) Submit a plan of study, including a schedule, for data 
collection and submittal of the additional information. EPA will review 
the plan of study and may require revisions prior to authorizing 
submission of the additional information.
    (h) Tentative decisions on section 301(h) modifications. The 
Administrator shall

[[Page 351]]

grant a tentative approval or a tentative denial of a section 301(h) 
modified permit application. To qualify for a tentative approval, the 
applicant shall demonstrate to the satisfaction of the Administrator 
that it is using good faith means to come into compliance with all the 
requirements of this subpart and that it will meet all such requirements 
based on a schedule approved by the Administrator. For compliance with 
Sec. Sec. 125.60 and 125.65, such schedule shall be in accordance with 
Sec. 125.59(f)(3)(ii).
    (i) Decisions on section 301(h) modifications. (1) The decision to 
grant or deny a section 301(h) modification shall be made by the 
Administrator and shall be based on the applicant's demonstration that 
it has met all the requirements of Sec. Sec. 125.59 through 125.68.
    (2) No section 301(h) modified permit shall be issued until the 
appropriate State certification/concurrence is granted or waived 
pursuant to Sec. 124.54 or if the State denies certification/ 
concurrence pursuant to Sec. 124.54.
    (3) In the case of a modification issued to an applicant in a State 
administering an approved permit program under 40 CFR part 123, the 
State Director may:
    (i) Revoke an existing permit as of the effective date of the EPA 
issued section 301(h) modified permit; and
    (ii) Cosign the section 301(h) modified permit if the Director has 
indicated an intent to do so in the written concurrence.
    (4) Any section 301(h) modified permit shall:
    (i) Be issued in accordance with the procedures set forth in 40 CFR 
part 124, except that, because section 301(h) permits may be issued only 
by EPA, the terms ``Administrator or a person designated by the 
Administrator'' shall be substituted for the term ``Director'' as 
appropriate; and
    (ii) Contain all applicable terms and conditions set forth in 40 CFR 
part 122 and Sec. 125.68.
    (5) Appeals of section 301(h) determinations shall be governed by 
the procedures in 40 CFR part 124.
    (j) Grandfathering provision. Applicants that received tentative or 
final approval for a section 301(h) modified permit prior to February 4, 
1987, are not subject to Sec. 125.60, the water quality criteria 
provisions of Sec. 125.62(a)(1), or Sec. 125.65 until the time of 
permit renewal. In addition, if permit renewal will occur prior to 
August 9, 1996, applicants may have additional time to come into 
compliance with Sec. Sec. 125.60 and 125.65, as determined appropriate 
by EPA on a case-by-case basis. Such additional time, however, shall not 
extend beyond August 9, 1996. This paragraph does not apply to any 
application that was initially tentatively approved, but as to which EPA 
withdrew its tentative approval or issued a tentative denial prior to 
February 4, 1987.



Sec. 125.60  Primary or equivalent treatment requirements.

    (a) The applicant shall demonstrate that, at the time its 
modification becomes effective, it will be discharging effluent that has 
received at least primary or equivalent treatment.
    (b) The applicant shall perform monitoring to ensure, based on the 
monthly average results of the monitoring, that the effluent it 
discharges has received primary or equivalent treatment.
    (c)(1) An applicant may request that the demonstration of compliance 
with the requirement under paragraph (b) of this section to provide 30 
percent removal of BOD be allowed on an averaging basis different from 
monthly (e.g., quarterly), subject to the demonstrations provided in 
paragraphs (c)(1)(i), (ii) and (iii) of this section. The Administrator 
may approve such requests if the applicant demonstrates to the 
Administrator's satisfaction that:
    (i) The applicant's POTW is adequately designed and well operated;
    (ii) The applicant will be able to meet all requirements under 
section 301(h) of the CWA and these subpart G regulations with the 
averaging basis selected; and
    (iii) The applicant cannot achieve 30 percent removal on a monthly 
average basis because of circumstances beyond the applicant's control. 
Circumstances beyond the applicant's control may include seasonally 
dilute influent BOD concentrations due to relatively high (although 
nonexcessive) inflow and infiltration; relatively high soluble to 
insoluble BOD ratios on a fluctuating

[[Page 352]]

basis; or cold climates resulting in cold influent. Circumstances beyond 
the applicant's control shall not include less concentrated wastewater 
due to excessive inflow and infiltration (I&I). The determination of 
whether the less concentrated wastewater is the result of excessive I&I 
will be based on the definition of excessive I&I in 40 CFR 
35.2005(b)(16) plus the additional criterion that inflow is nonexcessive 
if the total flow to the POTW (i.e., wastewater plus inflow plus 
infiltration) is less than 275 gallons per capita per day.
    (2) In no event shall averaging on a less frequent basis than 
annually be allowed.

[59 FR 40658, Aug. 9, 1994, as amended at 61 FR 45833, Aug. 29, 1996]



Sec. 125.61  Existence of and compliance with applicable water quality 

standards.

    (a) There must exist a water quality standard or standards 
applicable to the pollutant(s) for which a section 301(h) modified 
permit is requested, including:
    (1) Water quality standards for biochemical oxygen demand or 
dissolved oxygen;
    (2) Water quality standards for suspended solids, turbidity, light 
transmission, light scattering, or maintenance of the euphotic zone; and
    (3) Water quality standards for pH.
    (b) The applicant must: (1) Demonstrate that the modified discharge 
will comply with the above water quality standard(s); and
    (2) Provide a determination signed by the State or interstate 
agency(s) authorized to provide certification under Sec. Sec. 124.53 
and 124.54 that the proposed modified discharge will comply with 
applicable provisions of State law including water quality standards. 
This determination shall include a discussion of the basis for the 
conclusion reached.



Sec. 125.62  Attainment or maintenance of water quality which assures 

protection of public water supplies; assures the protection and propagation of 

a balanced indigenous population of shellfish, fish, and wildlife; and 

allows recreational activities.

    (a) Physical characteristics of discharge. (1) At the time the 
301(h) modification becomes effective, the applicant's outfall and 
diffuser must be located and designed to provide adequate initial 
dilution, dispersion, and transport of wastewater such that the 
discharge does not exceed at and beyond the zone of initial dilution:
    (i) All applicable water quality standards; and
    (ii) All applicable EPA water quality criteria for pollutants for 
which there is no applicable EPA-approved water quality standard that 
directly corresponds to the EPA water quality criterion for the 
pollutant.
    (iii) For purposes of paragraph (a)(1)(ii) of this section, a State 
water quality standard ``directly corresponds'' to an EPA water quality 
criterion only if:
    (A) The State water quality standard addresses the same pollutant as 
the EPA water quality criterion and
    (B) The State water quality standard specifies a numeric criterion 
for that pollutant or State objective methodology for deriving such a 
numeric criterion.
    (iv) The evaluation of compliance with paragraphs (a)(1) (i) and 
(ii) of this section shall be based upon conditions reflecting periods 
of maximum stratification and during other periods when discharge 
characteristics, water quality, biological seasons, or oceanographic 
conditions indicate more critical situations may exist.
    (2) The evaluation under paragraph (a)(1)(ii) of this section as to 
compliance with applicable section 304(a)(1) water quality criteria 
shall be based on the following:
    (i) For aquatic life criteria: The pollutant concentrations that 
must not be exceeded are the numeric ambient values, if any, specified 
in the EPA section 304(a)(1) water quality criteria documents as the 
concentrations at which acute and chronic toxicity to aquatic life 
occurs or that are otherwise identified as the criteria to protect 
aquatic life.
    (ii) For human health criteria for carcinogens: (A) For a known or 
suspected carcinogen, the Administrator shall determine the pollutant 
concentration that shall not be exceeded. To make this determination, 
the Administrator

[[Page 353]]

shall first determine a level of risk associated with the pollutant that 
is acceptable for purposes of this section. The Administrator shall then 
use the information in the section 304(a)(1) water quality criterion 
document, supplemented by all other relevant information, to determine 
the specific pollutant concentration that corresponds to the identified 
risk level.
    (B) For purposes of paragraph (a)(2)(ii)(A) of this section, an 
acceptable risk level will be a single level that has been consistently 
used, as determined by the Administrator, as the basis of the State's 
EPA-approved water quality standards for carcinogenic pollutants. 
Alternatively, the Administrator may consider a State's recommendation 
to use a risk level that has been otherwise adopted or formally proposed 
by the State. The State recommendation must demonstrate, to the 
satisfaction of the Administrator, that the recommended level is 
sufficiently protective of human health in light of the exposure and 
uncertainty factors associated with the estimate of the actual risk 
posed by the applicant's discharge. The State must include with its 
demonstration a showing that the risk level selected is based on the 
best information available and that the State has held a public hearing 
to review the selection of the risk level, in accordance with provisions 
of State law and public participation requirements of 40 CFR part 25. If 
the Administrator neither determines that there is a consistently used 
single risk level nor accepts a risk level recommended by the State, 
then the Administrator shall otherwise determine an acceptable risk 
level based on all relevant information.
    (iii) For human health criteria for noncarcinogens: For 
noncarcinogenic pollutants, the pollutant concentrations that must not 
be exceeded are the numeric ambient values, if any, specified in the EPA 
section 304(a)(1) water quality criteria documents as protective against 
the potential toxicity of the contaminant through ingestion of 
contaminated aquatic organisms.
    (3) The requirements of paragraphs (a)(1) and (a)(2) of this section 
apply in addition to, and do not waive or substitute for, the 
requirements of Sec. 125.61.
    (b) Impact of discharge on public water supplies. (1) The 
applicant's modified discharge must allow for the attainment or 
maintenance of water quality which assures protection of public water 
supplies.
    (2) The applicant's modified discharge must not:
    (i) Prevent a planned or existing public water supply from being 
used, or from continuing to be used, as a public water supply; or
    (ii) Have the effect of requiring treatment over and above that 
which would be necessary in the absence of such discharge in order to 
comply with local and EPA drinking water standards.
    (c) Biological impact of discharge. (1) The applicant's modified 
discharge must allow for the attainment or maintenance of water quality 
which assures protection and propagation of a balanced indigenous 
population of shellfish, fish, and wildlife.
    (2) A balanced indigenous population of shellfish, fish, and 
wildlife must exist:
    (i) Immediately beyond the zone of initial dilution of the 
applicant's modified discharge; and
    (ii) In all other areas beyond the zone of initial dilution where 
marine life is actually or potentially affected by the applicant's 
modified discharge.
    (3) Conditions within the zone of initial dilution must not 
contribute to extreme adverse biological impacts, including, but not 
limited to, the destruction of distinctive habitats of limited 
distribution, the presence of disease epicenter, or the stimulation of 
phytoplankton blooms which have adverse effects beyond the zone of 
initial dilution.
    (4) In addition, for modified discharges into saline estuarine 
water:
    (i) Benthic populations within the zone of initial dilution must not 
differ substantially from the balanced indigenous populations which 
exist immediately beyond the boundary of the zone of initial dilution;
    (ii) The discharge must not interfere with estuarine migratory 
pathways within the zone of initial dilution; and
    (iii) The discharge must not result in the accumulation of toxic 
pollutants or pesticides at levels which exert adverse

[[Page 354]]

effects on the biota within the zone of initial dilution.
    (d) Impact of discharge on recreational activities. (1) The 
applicant's modified discharge must allow for the attainment or 
maintenance of water quality which allows for recreational activities 
beyond the zone of initial dilution, including, without limitation, 
swimming, diving, boating, fishing, and picnicking, and sports 
activities along shorelines and beaches.
    (2) There must be no Federal, State, or local restrictions on 
recreational activities within the vicinity of the applicant's modified 
outfall unless such restrictions are routinely imposed around sewage 
outfalls. This exception shall not apply where the restriction would be 
lifted or modified, in whole or in part, if the applicant were 
discharging a secondary treatment effluent.
    (e) Additional requirements for applications based on improved or 
altered discharges. An application for a section 301(h) modified permit 
on the basis of an improved or altered discharge must include:
    (1) A demonstration that such improvements or alterations have been 
thoroughly planned and studied and can be completed or implemented 
expeditiously;
    (2) Detailed analyses projecting changes in average and maximum 
monthly flow rates and composition of the applicant's discharge which 
are expected to result from proposed improvements or alterations;
    (3) The assessments required by paragraphs (a) through (d) of this 
section based on its current discharge; and
    (4) A detailed analysis of how the applicant's planned improvements 
or alterations will comply with the requirements of paragraphs (a) 
through (d) of this section.
    (f) Stressed waters. An applicant must demonstrate compliance with 
paragraphs (a) through (e) of this section not only on the basis of the 
applicant's own modified discharge, but also taking into account the 
applicant's modified discharge in combination with pollutants from other 
sources. However, if an applicant which discharges into ocean waters 
believes that its failure to meet the requirements of paragraphs (a) 
through (e) of this section is entirely attributable to conditions 
resulting from human perturbations other than its modified discharge 
(including, without limitation, other municipal or industrial 
discharges, nonpoint source runoff, and the applicant's previous 
discharges), the applicant need not demonstrate compliance with those 
requirements if it demonstrates, to the satisfaction of the 
Administrator, that its modified discharge does not or will not:
    (1) Contribute to, increase, or perpetuate such stressed conditions;
    (2) Contribute to further degradation of the biota or water quality 
if the level of human perturbation from other sources increases; and
    (3) Retard the recovery of the biota or water quality if the level 
of human perturbation from other sources decreases.



Sec. 125.63  Establishment of a monitoring program.

    (a) General requirements. (1) The applicant must:
    (i) Have a monitoring program that is:
    (A) Designed to provide data to evaluate the impact of the modified 
discharge on the marine biota, demonstrate compliance with applicable 
water quality standards or water quality criteria, as applicable, and 
measure toxic substances in the discharge, and
    (B) Limited to include only those scientific investigations 
necessary to study the effects of the proposed discharge;
    (ii) Describe the sampling techniques, schedules and locations 
(including appropriate control sites), analytical techniques, quality 
control and verification procedures to be used in the monitoring 
program;
    (iii) Demonstrate that it has the resources necessary to implement 
the program upon issuance of the modified permit and to carry it out for 
the life of the modified permit; and
    (iv) Determine the frequency and extent of the monitoring program 
taking into consideration the applicant's rate of discharge, quantities 
of toxic pollutants discharged, and potentially significant impacts on 
receiving water

[[Page 355]]

quality, marine biota, and designated water uses.
    (2) The Administrator may require revision of the proposed 
monitoring program before issuing a modified permit and during the term 
of any modified permit.
    (b) Biological monitoring program. The biological monitoring program 
for both small and large applicants shall provide data adequate to 
evaluate the impact of the modified discharge on the marine biota.
    (1) Biological monitoring shall include to the extent practicable:
    (i) Periodic surveys of the biological communities and populations 
which are most likely affected by the discharge to enable comparisons 
with baseline conditions described in the application and verified by 
sampling at the control stations/reference sites during the periodic 
surveys;
    (ii) Periodic determinations of the accumulation of toxic pollutants 
and pesticides in organisms and examination of adverse effects, such as 
disease, growth abnormalities, physiological stress, or death;
    (iii) Sampling of sediments in areas of solids deposition in the 
vicinity of the ZID, in other areas of expected impact, and at 
appropriate reference sites to support the water quality and biological 
surveys and to measure the accumulation of toxic pollutants and 
pesticides; and
    (iv) Where the discharge would affect commercial or recreational 
fisheries, periodic assessments of the conditions and productivity of 
fisheries.
    (2) Small applicants are not subject to the requirements of 
paragraph (b)(1) (ii) through (iv) of this section if they discharge at 
depths greater than 10 meters and can demonstrate through a suspended 
solids deposition analysis that there will be negligible seabed 
accumulation in the vicinity of the modified discharge.
    (3) For applicants seeking a section 301(h) modified permit based 
on:
    (i) A current discharge, biological monitoring shall be designed to 
demonstrate ongoing compliance with the requirements of Sec. 125.62(c);
    (ii) An improved discharge or altered discharge other than outfall 
relocation, biological monitoring shall provide baseline data on the 
current impact of the discharge and data which demonstrate, upon 
completion of improvements or alterations, that the requirements of 
Sec. 125.62(c) are met; or
    (iii) An improved or altered discharge involving outfall relocation, 
the biological monitoring shall:
    (A) Include the current discharge site until such discharge ceases; 
and
    (B) Provide baseline data at the relocation site to demonstrate the 
impact of the discharge and to provide the basis for demonstrating that 
requirements of Sec. 125.62(c) will be met.
    (c) Water quality monitoring program. The water quality monitoring 
program shall to the extent practicable:
    (1) Provide adequate data for evaluating compliance with water 
quality standards or water quality criteria, as applicable under Sec. 
125.62(a)(1);
    (2) Measure the presence of toxic pollutants which have been 
identified or reasonably may be expected to be present in the discharge.
    (d) Effluent monitoring program. (1) In addition to the requirements 
of 40 CFR part 122, to the extent practicable, monitoring of the POTW 
effluent shall provide quantitative and qualitative data which measure 
toxic substances and pesticides in the effluent and the effectiveness of 
the toxic control program.
    (2) The permit shall require the collection of data on a frequency 
specified in the permit to provide adequate data for evaluating 
compliance with the percent removal efficiency requirements under Sec. 
125.60.



Sec. 125.64  Effect of the discharge on other point and nonpoint sources.

    (a) No modified discharge may result in any additional pollution 
control requirements on any other point or nonpoint source.
    (b) The applicant shall obtain a determination from the State or 
interstate agency(s) having authority to establish wasteload allocations 
indicating whether the applicant's discharge will result in an 
additional treatment pollution control, or other requirement on any 
other point or nonpoint sources. The State determination shall include a 
discussion of the basis for its conclusion.

[[Page 356]]



Sec. 125.65  Urban area pretreatment program.

    (a) Scope and applicability. (1) The requirements of this section 
apply to each POTW serving a population of 50,000 or more that has one 
or more toxic pollutants introduced into the POTW by one or more 
industrial dischargers and that seeks a section 301(h) modification.
    (2) The requirements of this section apply in addition to any 
applicable requirements of 40 CFR part 403, and do not waive or 
substitute for the part 403 requirements in any way.
    (b) Toxic pollutant control. (1) As to each toxic pollutant 
introduced by an industrial discharger, each POTW subject to the 
requirements of this section shall demonstrate that it either:
    (i) Has an applicable pretreatment requirement in effect in 
accordance with paragraph (c) of this section; or
    (ii) Has in effect a program that achieves secondary removal 
equivalency in accordance with paragraph (d) of this section.
    (2) Each applicant shall demonstrate that industrial sources 
introducing waste into the applicant's treatment works are in compliance 
with all applicable pretreatment requirements, including numerical 
standards set by local limits, and that it will enforce those 
requirements.
    (c) Applicable pretreatment requirement. (1) An applicable 
pretreatment requirement under paragraph (b)(1)(i) of this section with 
respect to a toxic pollutant shall consist of the following:
    (i) As to a toxic pollutant introduced into the applicant's 
treatment works by an industrial discharger for which there is no 
applicable categorical pretreatment standard for the toxic pollutant, a 
local limit or limits on the toxic pollutant as necessary to satisfy the 
requirements of 40 CFR part 403; and
    (ii) As to a toxic pollutant introduced into the applicant's 
treatment works by an industrial discharger that is subject to a 
categorical pretreatment standard for the toxic pollutant, the 
categorical standard and a local limit or limits as necessary to satisfy 
the requirements of 40 CFR part 403;
    (iii) As to a toxic pollutant introduced into the applicant's 
treatment works by an industrial discharger for which there is no 
applicable categorical pretreatment standard for the toxic pollutant, 
and the 40 CFR part 403 analysis on the toxic pollutant shows that no 
local limit is necessary, the applicant shall demonstrate to EPA on an 
annual basis during the term of the permit through continued monitoring 
and appropriate technical review that a local limit is not necessary, 
and, where appropriate, require industrial management practices plans 
and other pollution prevention activities to reduce or control the 
discharge of each such pollutant by industrial dischargers to the POTW. 
If such monitoring and technical review of data indicate that a local 
limit is needed, the POTW shall establish and implement a local limit.
    (2) Any local limits developed to meet the requirements of 
paragraphs (b)(1)(i) and (c)(1) of this section shall be:
    (i) Consistent with all applicable requirements of 40 CFR part 403 
and
    (ii) Subject to approval by the Administrator as part of the 301(h) 
application review. The Administrator may require such local limits to 
be revised as necessary to meet the requirements of this section or 40 
CFR part 403.
    (d) Secondary removal equivalency. An applicant shall demonstrate 
that it achieves secondary removal equivalency through the use of a 
secondary treatment pilot (demonstration) plant at the applicant's 
facility which provides an empirical determination of the amount of a 
toxic pollutant removed by the application of secondary treatment to the 
applicant's influent where the applicant's influent has not been 
pretreated. Alternatively, an applicant may make this determination 
using influent that has received industrial pretreatment, 
notwithstanding the definition of secondary removal equivalency in Sec. 
125.58(w). The NPDES permit shall include effluent limits based on the 
data from the secondary equivalency demonstration when those limits are 
more stringent than effluent limits based on State water quality 
standards or water quality criteria, if applicable, or are otherwise 
required to assure that all applicable environmental protection criteria 
are met.

[[Page 357]]

Once such effluent limits are established in the NPDES permit, the POTW 
may either establish local limits or perform additional treatment at the 
POTW or a combination of the two to achieve the permit limit.



Sec. 125.66  Toxics control program.

    (a) Chemical analysis. (1) The applicant shall submit at the time of 
application a chemical analysis of its current discharge for all toxic 
pollutants and pesticides as defined in Sec. 125.58(aa) and (p). The 
analysis shall be performed on two 24-hour composite samples (one dry 
weather and one wet weather). Applicants may supplement or substitute 
chemical analyses if composition of the supplemental or substitute 
samples typifies that which occurs during dry and wet weather 
conditions.
    (2) Unless required by the State, this requirement shall not apply 
to any small section 301(h) applicant which certifies that there are no 
known or suspected sources of toxic pollutants or pesticides and 
documents the certification with an industrial user survey as described 
by 40 CFR 403.8(f)(2).
    (b) Identification of sources. The applicant shall submit at the 
time of application an analysis of the known or suspected sources of 
toxic pollutants or pesticides identified in Sec. 125.66(a). The 
applicant shall to the extent practicable categorize the sources 
according to industrial and nonindustrial types.
    (c) Industrial pretreatment requirements. (1) An applicant that has 
known or suspected industrial sources of toxic pollutants shall have an 
approved pretreatment program in accordance with 40 CFR part 403.
    (2) This requirement shall not apply to any applicant which has no 
known or suspected industrial sources of toxic pollutants or pesticides 
and so certifies to the Administrator.
    (3) The pretreatment program submitted by the applicant under this 
section shall be subject to revision as required by the Administrator 
prior to issuing or renewing any section 301(h) modified permit and 
during the term of any such permit.
    (4) Implementation of all existing pretreatment requirements and 
authorities must be maintained through the period of development of any 
additional pretreatment requirements that may be necessary to comply 
with the requirements of this subpart.
    (d) Nonindustrial source control program. (1) The applicant shall 
submit a proposed public education program designed to minimize the 
entrance of nonindustrial toxic pollutants and pesticides into its 
POTW(s) which shall be implemented no later than 18 months after 
issuance of a 301(h) modified permit.
    (2) The applicant shall also develop and implement additional 
nonindustrial source control programs on the earliest possible schedule. 
This requirement shall not apply to a small applicant which certifies 
that there are no known or suspected water quality, sediment 
accumulation, or biological problems related to toxic pollutants or 
pesticides in its discharge.
    (3) The applicant's nonindustrial source control programs under 
paragraph (d)(2) of this section shall include the following schedules 
which are to be implemented no later than 18 months after issuance of a 
section 301(h) modified permit:
    (i) A schedule of activities for identifying nonindustrial sources 
of toxic pollutants and pesticides; and
    (ii) A schedule for the development and implementation of control 
programs, to the extent practicable, for nonindustrial sources of toxic 
pollutants and pesticides.
    (4) Each proposed nonindustrial source control program and/or 
schedule submitted by the applicant under this section shall be subject 
to revision as determined by the Administrator prior to issuing or 
renewing any section 301(h) modified permit and during the term of any 
such permit.



Sec. 125.67  Increase in effluent volume or amount of pollutants discharged.

    (a) No modified discharge may result in any new or substantially 
increased discharges of the pollutant to which the modification applies 
above the discharge specified in the section 301(h) modified permit.
    (b) Where pollutant discharges are attributable in part to combined 
sewer overflows, the applicant shall minimize

[[Page 358]]

existing overflows and prevent increases in the amount of pollutants 
discharged.
    (c) The applicant shall provide projections of effluent volume and 
mass loadings for any pollutants to which the modification applies in 5-
year increments for the design life of its facility.



Sec. 125.68  Special conditions for section 301(h) modified permits.

    Each section 301(h) modified permit issued shall contain, in 
addition to all applicable terms and conditions required by 40 CFR part 
122, the following:
    (a) Effluent limitations and mass loadings which will assure 
compliance with the requirements of this subpart;
    (b) A schedule or schedules of compliance for:
    (1) Pretreatment program development required by Sec. 125.66(c);
    (2) Nonindustrial toxics control program required by Sec. 
125.66(d); and
    (3) Control of combined sewer overflows required by Sec. 125.67.
    (c) Monitoring program requirements that include:
    (1) Biomonitoring requirements of Sec. 125.63(b);
    (2) Water quality requirements of Sec. 125.63(c);
    (3) Effluent monitoring requirements of Sec. Sec. 125.60(b), 
125.62(c) and (d), and 125.63(d).
    (d) Reporting requirements that include the results of the 
monitoring programs required by paragraph (c) of this section at such 
frequency as prescribed in the approved monitoring program.



  Sec. Appendix to Subpart G of Part 125--Applicant Questionnaire for 
            Modification of Secondary Treatment Requirements

    OMB Control Number 2040-0088 Expires on 2/28/96 Public reporting 
burden for this collection of information is estimated to average 1,295 
- 19,552 hours per response, for small and large applicants, 
respectively. The reporting burden includes time for reviewing 
instructions, gathering data, including monitoring and toxics control 
activities, and completing and reviewing the questionnaire. Send 
comments regarding the burden estimate or any other aspect of this 
collection, including suggestions for reducing the burden, to Chief, 
Information Policy Branch, U.S. Environmental Protection Agency, 1200 
Pennsylvania Ave., NW. (2136), Washington, DC 20460 and Office of 
Management and Budget, Office of Information and Regulatory Affairs, 
Attn: Desk Officer for EPA, Washington, DC 20503.

                             I. Introduction

    1. This questionnaire is to be submitted by both small and large 
applicants for modification of secondary treatment requirements under 
section 301(h) of the Clean Water Act (CWA). A small applicant is 
defined as a POTW that has a contributing population to its wastewater 
treatment facility of less than 50,000 and a projected average dry 
weather flow of less than 5.0 million gallons per day (mgd, 0.22 cubic 
meters/sec) [40 CFR 125.58(c)]. A large applicant is defined as a POTW 
that has a population contributing to its wastewater treatment facility 
of at least 50,000 or a projected average dry weather flow of its 
discharge of at least 5.0 million gallons per day (mgd, 0.22 cubic 
meters/sec) [40 CFR 125.58(c)]. The questionnaire is in two sections, a 
general information and basic requirements section (part II) and a 
technical evaluation section (part III). Satisfactory completion by 
small and large dischargers of the appropriate questions of this 
questionnaire is necessary to enable EPA to determine whether the 
applicant's modified discharge meets the criteria of section 301(h) and 
EPA regulations (40 CFR part 125, subpart G).
    2. Most small applicants should be able to complete the 
questionnaire using available information. However, small POTWs with low 
initial dilution discharging into shallow waters or waters with poor 
dispersion and transport characteristics, discharging near distinctive 
and susceptible biological habitats, or discharging substantial 
quantities of toxics should anticipate the need to collect additional 
information and/or conduct additional analyses to demonstrate compliance 
with section 301(h) criteria. If there are questions in this regard, 
applicants should contact the appropriate EPA Regional Office for 
guidance.
    3. Guidance for responding to this questionnaire is provided by the 
newly amended section 301(h) technical support document. Where available 
information is incomplete and the applicant needs to collect additional 
data during the period it is preparing the application or a letter of 
intent, EPA encourages the applicant to consult with EPA prior to data 
collection and submission. Such consultation, particularly if the 
applicant provides a project plan, will help ensure that the proper data 
are gathered in the most efficient matter.
    4. The notation (L) means large applicants must respond to the 
question, and (S) means small applicants must respond.

[[Page 359]]

           II. General Information and Basic Data Requirements

                     A. Treatment System Description

    1. (L,S) On which of the following are you basing your application: 
a current discharge, improved discharge, or altered discharge, as 
defined in 40 CFR 125.58? [40 CFR 125.59(a)]
    2. (L,S) Description of the Treatment/Outfall System [40 CFR 
125.62(a) and 125.62(e)]
    a. Provide detailed descriptions and diagrams of the treatment 
system and outfall configuration which you propose to satisfy the 
requirements of section 301(h) and 40 CFR part 125, subpart G. What is 
the total discharge design flow upon which this application is based?
    b. Provide a map showing the geographic location of proposed 
outfall(s) (i.e., discharge). What is the latitude and longitude of the 
proposed outfall(s)?
    c. For a modification based on an improved or altered discharge, 
provide a description and diagram of your current treatment system and 
outfall configuration. Include the current outfall's latitude and 
longitude, if different from the proposed outfall.
    3. (L,S) Primary or equivalent treatment requirements [40 CFR 
125.60]
    a. Provide data to demonstrate that your effluent meets at least 
primary or equivalent treatment requirements as defined in 40 CFR 
125.58(r) [40 CFR 125.60]
    b. If your effluent does not meet the primary or equivalent 
treatment requirements, when do you plan to meet them? Provide a 
detailed schedule, including design, construction, start-up and full 
operation, with your application. This requirement must be met by the 
effective date of the new section 301(h) modified permit.
    4. (L,S) Effluent Limitations and Characteristics [40 CFR 125.61(b) 
and 125.62(e)(2)]
    a. Identify the final effluent limitations for five-day biochemical 
oxygen demand (BOD5), suspended solids, and pH upon which 
your application for a modification is based:

--BOD5 ------ mg/L
--Suspended solids ------ mg/L
--pH ------ (range)

    b. Provide data on the following effluent characteristics for your 
current discharge as well as for the modified discharge if different 
from the current discharge:

Flow (m\3\/sec):
--minimum
--average dry weather
--average wet weather
--maximum
--annual average

    BOD5 (mg/L) for the following plant flows:

--minimum
--average dry weather
--average wet weather
--maximum
--annual average

    Suspended solids (mg/L) for the following plant flows:

--minimum
--average dry weather
--average wet weather
--maximum
--annual average

    Toxic pollutants and pesticides (ug/L):

--list each toxic pollutant and pesticide
--list each 304(a)(1) criteria and toxic pollutant and pesticide

    pH:
--minimum
--maximum
    Dissolved oxygen (mg/L, prior to chlorination) for the following 
plant flows:

--minimum
--average dry weather
--average wet weather
--maximum
--annual average

    Immediate dissolved oxygen demand (mg/L).
    5. (L,S) Effluent Volume and Mass Emissions [40 CFR 125.62(e)(2) and 
125.67]
    a. Provide detailed analyses showing projections of effluent volume 
(annual average, m\3\/sec) and mass loadings (mt/yr) of BOD5 
and suspended solids for the design life of your treatment facility in 
five-year increments. If the application is based upon an improved or 
altered discharge, the projections must be provided with and without the 
proposed improvements or alterations.
    b. Provide projections for the end of your five-year permit term for 
1) the treatment facility contributing population and 2) the average 
daily total discharge flow for the maximum month of the dry weather 
season.
    6. (L,S) Average Daily Industrial Flow (m\3\/sec). Provide or 
estimate the average daily industrial inflow to your treatment facility 
for the same time increments as in question II.A.5 above. [40 CFR 
125.66]
    7. (L,S) Combined Sewer Overflows [40 CFR 125.67(b)]
    a. Does (will) your treatment and collection system include combined 
sewer overflows?
    b. If yes, provide a description of your plan for minimizing 
combined sewer overflows to the receiving water.
    8. (L,S) Outfall/Diffuser Design. Provide the following data for 
your current discharge as well as for the modified discharge, if 
different from the current discharge: [40 CFR 125.62(a)(1)]

--Diameter and length of the outfall(s) (meters)
--Diameter and length of the diffuser(s) (meters)
--Angle(s) of port orientation(s) from horizontal (degrees)
--Port diameter(s) (meters)

[[Page 360]]

--Orifice contraction coefficient(s), if known
--Vertical distance from mean lower low water (or mean low water) 
surface and outfall port(s) centerline (meters)
--Number of ports
--Port spacing (meters)
--Design flow rate for each port, if multiple ports are used (m\3\/sec)

                     B. Receiving Water Description

    1. (L,S) Are you applying for a modification based on a discharge to 
the ocean [40 CFR 125.58(n)] or to a saline estuary [40 CFR 125.58(v)]? 
[40 CFR 125.59(a)].
    2. (L,S) Is your current discharge or modified discharge to stressed 
waters as defined in 40 CFR 125.58(z)? If yes, what are the pollution 
sources contributing to the stress? [40 CFR 125.59(b)(4) and 125.62(f)].
    3. (L,S) Provide a description and data on the seasonal circulation 
patterns in the vicinity of your current and modified discharge(s). [40 
CFR 125.62(a)].
    4. (L) Oceanographic conditions in the vicinity of the current and 
proposed modified discharge(s). Provide data on the following: [40 CFR 
125.62(a)].

--Lowest ten percentile current speed (m/sec)
--Predominant current speed (m/sec) and direction (true) during the four 
seasons
--Period(s) of maximum stratification (months)
--Period(s) of natural upwelling events (duration and frequency, months)
--Density profiles during period(s) of maximum stratification

    5. (L,S) Do the receiving waters for your discharge contain 
significant amounts of effluent previously discharged from the treatment 
works for which you are applying for a section 301(h) modified permit? 
[40 CFR 125.57(a)(9)]
    6. Ambient water quality conditions during the period(s) of maximum 
stratification: at the zone of initial dilution (ZID) boundary, at other 
areas of potential impact, and at control stations. [40 CFR 125.62(a)]
    a. (L) Provide profiles (with depth) on the following for the 
current discharge location and for the modified discharge location, if 
different from the current discharge:

--BOD5 (mg/L)
--Dissolved oxygen (mg/L)
--Suspended solids (mg/L)
--pH
--Temperature ( [deg]C)
--Salinity (ppt)
--Transparency (turbidity, percent light transmittance)
--Other significant variables (e.g., nutrients, 304(a)(1) criteria and 
toxic pollutants and pesticides, fecal coliform bacteria)

    b. (S) Provide available data on the following in the vicinity of 
the current discharge location and for the modified discharge location, 
if different from the current discharge: [40 CFR 125.61(b)(1)]

--Dissolved oxygen (mg/L)
--Suspended solids (mg/L)
--pH
--Temperature ( [deg]C)
--Salinity (ppt)
--Transparency (turbidity, percent light transmittance)
--Other significant variables (e.g., nutrients, 304(a)(1) criteria and 
toxic pollutants and pesticides, fecal coliform bacteria)
    c. (L,S)Are there other periods when receiving water quality 
conditions may be more critical than the period(s) of maximum 
stratification? If so, describe these and other critical periods and 
data requested in 6.a. for the other critical period(s). [40 CFR 
125.62(a)(1)].
    7. (L) Provide data on steady state sediment dissolved oxygen demand 
and dissolved oxygen demand due to resuspension of sediments in the 
vicinity of your current and modified discharge(s) (mg/L/day).

                        C. Biological Conditions

    1. (L) Provide a detailed description of representative biological 
communities (e.g., plankton, macrobenthos, demersal fish, etc.) in the 
vicinity of your current and modified discharge(s): within the ZID, at 
the ZID boundary, at other areas of potential discharge-related impact, 
and at reference (control) sites. Community characteristics to be 
described shall include (but not be limited to) species composition; 
abundance; dominance and diversity; spatial/temporal distribution; 
growth and reproduction; disease frequency; trophic structure and 
productivity patterns; presence of opportunistic species; 
bioaccumulation of toxic materials; and the occurrence of mass 
mortalities.
    2. (L,S)a. Are distinctive habitats of limited distribution (such as 
kelp beds or coral reefs) located in areas potentially affected by the 
modified discharge? [40 CFR 125.62(c)]
    b. If yes, provide information on type, extent, and location of 
habitats.
    3. (L,S)a. Are commercial or recreational fisheries located in areas 
potentially affected by the discharge? [40 CFR 125.62 (c) and (d)]
    b. If yes, provide information on types, location, and value of 
fisheries.

       D. State and Federal Laws [40 CFR 125.61 and 125.62(a)(1)]

    1. (L,S) Are there water quality standards applicable to the 
following pollutants for which a modification is requested:

--Biochemical oxygen demand or dissolved oxygen?
--Suspended solids, turbidity, light transmission, light scattering, or 
maintenance of the euphotic zone?
--pH of the receiving water?


[[Page 361]]


    2. (L,S) If yes, what is the water use classification for your 
discharge area? What are the applicable standards for your discharge 
area for each of the parameters for which a modification is requested? 
Provide a copy of all applicable water quality standards or a citation 
to where they can be found.
    3. (L,S) Will the modified discharge: [40 CFR 125.59(b)(3)].

--Be consistent with applicable State coastal zone management program(s) 
approved under the Coastal Zone Management Act as amended, 16 U.S.C. 
1451 et seq.? [See 16 U.S.C. 1456(c)(3)(A)]
--Be located in a marine sanctuary designated under Title III of the 
Marine Protection, Research, and Sanctuaries Act (MPRSA) as amended, 16 
U.S.C. 1431 et seq., or in an estuarine sanctuary designated under the 
Coastal Zone Management Act as amended, 16 U.S.C. 1461? If located in a 
marine sanctuary designated under Title III of the MPRSA, attach a copy 
of any certification or permit required under regulations governing such 
marine sanctuary. [See 16 U.S.C. 1432(f)(2)]
--Be consistent with the Endangered Species Act as amended, 16 U.S.C. 
1531 et seq.? Provide the names of any threatened or endangered species 
that inhabit or obtain nutrients from waters that may be affected by the 
modified discharge. Identify any critical habitat that may be affected 
by the modified discharge and evaluate whether the modified discharge 
will affect threatened or endangered species or modify a critical 
habitat. [See 16 U.S.C. 1536(a)(2)].

    4. (L,S) Are you aware of any State or Federal laws or regulations 
(other than the Clean Water Act or the three statutes identified in item 
3 above) or an Executive Order which is applicable to your discharge? If 
yes, provide sufficient information to demonstrate that your modified 
discharge will comply with such law(s), regulation(s), or order(s). [40 
CFR 125.59 (b)(3)].

                        III. Technical Evaluation

       A. Physical Characteristics of Discharge [40 CFR 125.62(a)]

    1. (L,S) What is the critical initial dilution for your current and 
modified discharge(s) during (1) the period(s) of maximum 
stratification? and (2) any other critical period(s) of discharge 
volume/composition, water quality, biological seasons, or oceanographic 
conditions?
    2. (L,S) What are the dimensions of the zone of initial dilution for 
your modified discharge(s)?
    3. (L) What are the effects of ambient currents and stratification 
on dispersion and transport of the discharge plume/wastefield?
    4. (S) Will there be significant sedimentation of suspended solids 
in the vicinity of the modified discharge?
    5. (L) Sedimentation of suspended solids
    a. What fraction of the modified discharge's suspended solids will 
accumulate within the vicinity of the modified discharge?
    b. What are the calculated area(s) and rate(s) of sediment 
accumulation within the vicinity of the modified discharge(s) (g/m\2\/
yr)?
    c. What is the fate of settleable solids transported beyond the 
calculated sediment accumulation area?

  B. Compliance with Applicable Water Quality Standards and CWA Sec. 
    304(a)(1) water quality criteria [40 CFR 125.61(b) and 125.62(a)]

    1. (L,S) What is the concentration of dissolved oxygen immediately 
following initial dilution for the period(s) of maximum stratification 
and any other critical period(s) of discharge volume/composition, water 
quality, biological seasons, or oceanographic conditions?
    2. (L,S) What is the farfield dissolved oxygen depression and 
resulting concentration due to BOD exertion of the wastefield during the 
period(s) of maximum stratification and any other critical period(s)?
    3. (L) What are the dissolved oxygen depressions and resulting 
concentrations near the bottom due to steady sediment demand and 
resuspension of sediments?
    4. (L,S) What is the increase in receiving water suspended solids 
concentration immediately following initial dilution of the modified 
discharge(s)?
    5. (L) What is the change in receiving water pH immediately 
following initial dilution of the modified discharge(s)?
    6. (L,S) Does (will) the modified discharge comply with applicable 
water quality standards for:

--Dissolved oxygen?
--Suspended solids or surrogate standards?
--pH?

    7. (L,S) Provide data to demonstrate that all applicable State water 
quality standards, and all applicable water quality criteria established 
under Section 304(a)(1) of the Clean Water Act for which there are no 
directly corresponding numerical applicable water quality standards 
approved by EPA, are met at and beyond the boundary of the ZID under 
critical environmental and treatment plant conditions in the waters 
surrounding or adjacent to the point at which your effluent is 
discharged. [40 CFR 125.62(a)(1)]
    8. (L,S) Provide the determination required by 40 CFR 125.61(b)(2) 
for compliance with all applicable provisions of State law, including 
water quality standards or, if the determination has not yet been 
received, a copy of a

[[Page 362]]

letter to the appropriate agency(s) requesting the required 
determination.

          C. Impact on Public Water Supplies [40 CFR 125.62(b)]

    1. (L,S) Is there a planned or existing public water supply 
(desalinization facility) intake in the vicinity of the current or 
modified discharge?
    2. (L,S) If yes:
    a. What is the location of the intake(s) (latitude and longitude)?
    b. Will the modified discharge(s) prevent the use of intake(s) for 
public water supply?
    c. Will the modified discharge(s) cause increased treatment 
requirements for public water supply(s) to meet local, State, and EPA 
drinking water standards?

          D. Biological Impact of Discharge [40 CFR 125.62(c)]

    1. (L,S) Does (will) a balanced indigenous population of shellfish, 
fish, and wildlife exist:

--Immediately beyond the ZID of the current and modified discharge(s)?
--In all other areas beyond the ZID where marine life is actually or 
potentially affected by the current and modified discharge(s)?

    2. (L,S) Have distinctive habitats of limited distribution been 
impacted adversely by the current discharge and will such habitats be 
impacted adversely by the modified discharge?
    3. (L,S) Have commercial or recreational fisheries been impacted 
adversely by the current discharge (e.g., warnings, restrictions, 
closures, or mass mortalities) or will they be impacted adversely by the 
modified discharge?
    4. (L,S*) Does the current or modified discharge cause the following 
within or beyond the ZID: [40 CFR 125.62(c)(3)]

--Mass mortality of fishes or invertebrates due to oxygen depletion, 
high concentrations of toxics, or other conditions?
--An increased incidence of disease in marine organisms?
--An abnormal body burden of any toxic material in marine organisms?
--Any other extreme, adverse biological impacts?

    5. (L,S) For discharges into saline estuarine waters: [40 CFR 125.62 
(c)(4)]

--Does or will the current or modified discharge cause substantial 
differences in the benthic population within the ZID and beyond the ZID?
--Does or will the current or modified discharge interfere with 
migratory pathways within the ZID?
--Does or will the current or modified discharge result in 
bioaccumulation of toxic pollutants or pesticides at levels which exert 
adverse effects on the biota within the ZID?

    No section (h) modified permit shall be issued where the discharge 
enters into stressed saline estuarine waters as stated in 40 CFR 
125.59(b)(4).
    6. (L,S) For improved discharges, will the proposed improved 
discharge(s) comply with the requirements of 40 CFR 125.62(a) through 
125.62(d)? [40 CFR 125.62(e)]
    7. (L,S) For altered discharge(s), will the altered discharge(s) 
comply with the requirements of 40 CFR 125.62(a) through 125.62(d)? [40 
CFR 125.62(e)]
    8. (L,S) If your current discharge is to stressed ocean waters, does 
or will your current or modified discharge: [40 CFR 125.62(f)]

--Contribute to, increase, or perpetuate such stressed condition?
--Contribute to further degradation of the biota or water quality if the 
level of human perturbation from other sources increases?
--Retard the recovery of the biota or water quality if human 
perturbation from other sources decreases?

  E. Impacts of Discharge on Recreational Activities [40 CFR 125.62(d)]

    1. (L,S) Describe the existing or potential recreational activities 
likely to be affected by the modified discharge(s) beyond the zone of 
initial dilution.
    2. (L,S) What are the existing and potential impacts of the modified 
discharge(s) on recreational activities? Your answer should include, but 
not be limited to, a discussion of fecal coliform bacteria.
    3. (L,S) Are there any Federal, State, or local restrictions on 
recreational activities in the vicinity of the modified discharge(s)? If 
yes, describe the restrictions and provide citations to available 
references.
    4. (L,S) If recreational restrictions exist, would such restrictions 
be lifted or modified if you were discharging a secondary treatment 
effluent?

        F. Establishment of a Monitoring Program [40 CFR 125.63]

    1. (L,S) Describe the biological, water quality, and effluent 
monitoring programs which you propose to meet the criteria of 40 CFR 
125.63. Only those scientific investigations that are necessary to study 
the effects of the proposed discharge should be included in the scope of 
the 301(h) monitoring program [40 CFR 125.63(a)(1)(i)(B)].
    2. (L,S) Describe the sampling techniques, schedules, and locations, 
analytical techniques, quality control and verification procedures to be 
used.
    3. (L,S) Describe the personnel and financial resources available to 
implement the monitoring programs upon issuance of a

[[Page 363]]

modified permit and to carry it out for the life of the modified permit.

   G. Effect of Discharge on Other Point and Nonpoint Sources [40 CFR 
                                 125.64]

    1. (L,S) Does (will) your modified discharge(s) cause additional 
treatment or control requirements for any other point or nonpoint 
pollution source(s)?
    2. (L,S) Provide the determination required by 40 CFR 125.64(b) or, 
if the determination has not yet been received, a copy of a letter to 
the appropriate agency(s) requesting the required determination.

 H. Toxics Control Program and Urban Area Pretreatment Program [40 CFR 
                           125.65 and 125.66]

    1. a. (L,S) Do you have any known or suspected industrial sources of 
toxic pollutants or pesticides?
    b. (L,S) If no, provide the certification required by 40 CFR 
125.66(a)(2) for small dischargers, and required by 40 CFR 125.66(c)(2) 
for large dischargers.
    c. (L,S*) Provide the results of wet and dry weather effluent 
analyses for toxic pollutants and pesticides as required by 40 CFR 
125.66(a)(1). (* to the extent practicable)
    d. (L,S*) Provide an analysis of known or suspected industrial 
sources of toxic pollutants and pesticides identified in (1)(c) above as 
required by 40 CFR 125.66(b). (* to the extent practicable)
    2. (S)a. Are there any known or suspected water quality, sediment 
accumulation, or biological problems related to toxic pollutants or 
pesticides from your modified discharge(s)?
    (S)b. If no, provide the certification required by 40 CFR 
125.66(d)(2) together with available supporting data.
    (S)c. If yes, provide a schedule for development and implementation 
of nonindustrial toxics control programs to meet the requirements of 40 
CFR 126.66(d)(3).
    (L)d. Provide a schedule for development and implementation of a 
nonindustrial toxics control program to meet the requirements of 40 CFR 
125.66(d)(3).
    3. (L,S) Describe the public education program you propose to 
minimize the entrance of nonindustrial toxic pollutants and pesticides 
into your treatment system. [40 CFR 125.66(d)(1)]
    4. (L,S) Do you have an approved industrial pretreatment program?
    a. If yes, provide the date of EPA approval.
    b. If no, and if required by 40 CFR part 403 to have an industrial 
pretreatment program, provide a proposed schedule for development and 
implementation of your industrial pretreatment program to meet the 
requirements of 40 CFR part 403.
    5. Urban area pretreatment requirement [40 CFR 125.65] Dischargers 
serving a population of 50,000 or more must respond.
    a. Provide data on all toxic pollutants introduced into the 
treatment works from industrial sources (categorical and 
noncategorical).
    b. Note whether applicable pretreatment requirements are in effect 
for each toxic pollutant. Are the industrial sources introducing such 
toxic pollutants in compliance with all of their pretreatment 
requirements? Are these pretreatment requirements being enforced? [40 
CFR 125.65(b)(2)]
    c. If applicable pretreatment requirements do not exist for each 
toxic pollutant in the POTW effluent introduced by industrial sources,

--provide a description and a schedule for your development and 
implementation of applicable pretreatment requirements [40 CFR 
125.65(c)], or
--describe how you propose to demonstrate secondary removal equivalency 
for each of those toxic pollutants, including a schedule for compliance, 
by using a secondary treatment pilot plant. [40 CFR 125.65(d)]



  Subpart H_Criteria for Determining Alternative Effluent Limitations 
                     Under Section 316(a) of the Act



Sec. 125.70  Purpose and scope.

    Section 316(a) of the Act provides that:

    ``With respect to any point source otherwise subject to the 
provisions of section 301 or section 306 of this Act, whenever the owner 
or operator of any such source, after opportunity for public hearing, 
can demonstrate to the satisfaction of the Administrator (or, if 
appropriate, the State) that any effluent limitation proposed for the 
control of the thermal component of any discharge from such source will 
require effluent limitations more stringent than necessary to assure the 
projection [sic] and propagation of a balanced, indigenous population of 
shellfish, fish and wildlife in and on the body of water into which the 
discharge is to be made, the Administrator (or, if appropriate, the 
State) may impose an effluent limitation under such sections on such 
plant, with respect to the thermal component of such discharge (taking 
into account the interaction of such thermal component with other 
pollutants), that will assure the protection and propagation of a 
balanced indigenous population of shellfish, fish and wildlife in and on 
that body of water.''


[[Page 364]]



This subpart describes the factors, criteria and standards for the 
establishment of alternative thermal effluent limitations under section 
316(a) of the Act in permits issued under section 402(a) of the Act.



Sec. 125.71  Definitions.

    For the purpose of this subpart:
    (a) Alternative effluent limitations means all effluent limitations 
or standards of performance for the control of the thermal component of 
any discharge which are established under section 316(a) and this 
subpart.
    (b) Representative important species means species which are 
representative, in terms of their biological needs, of a balanced, 
indigenous community of shellfish, fish and wildlife in the body of 
water into which a discharge of heat is made.
    (c) The term balanced, indigenous community is synonymous with the 
term balanced, indigenous population in the Act and means a biotic 
community typically characterized by diversity, the capacity to sustain 
itself through cyclic seasonal changes, presence of necessary food chain 
species and by a lack of domination by pollution tolerant species. Such 
a community may include historically non-native species introduced in 
connection with a program of wildlife management and species whose 
presence or abundance results from substantial, irreversible 
environmental modifications. Normally, however, such a community will 
not include species whose presence or abundance is attributable to the 
introduction of pollutants that will be eliminated by compliance by all 
sources with section 301(b)(2) of the Act; and may not include species 
whose presence or abundance is attributable to alternative effluent 
limitations imposed pursuant to section 316(a).



Sec. 125.72  Early screening of applications for section 316(a) variances.

    (a) Any initial application for a section 316(a) variance shall 
include the following early screening information:
    (1) A description of the alternative effluent limitation requested;
    (2) A general description of the method by which the discharger 
proposes to demonstrate that the otherwise applicable thermal discharge 
effluent limitations are more stringent than necessary;
    (3) A general description of the type of data, studies, experiments 
and other information which the discharger intends to submit for the 
demonstration; and
    (4) Such data and information as may be available to assist the 
Director in selecting the appropriate representative important species.
    (b) After submitting the early screening information under paragraph 
(a) of this section, the discharger shall consult with the Director at 
the earliest practicable time (but not later than 30 days after the 
application is filed) to discuss the discharger's early screening 
information. Within 60 days after the application is filed, the 
discharger shall submit for the Director's approval a detailed plan of 
study which the discharger will undertake to support its section 316(a) 
demonstration. The discharger shall specify the nature and extent of the 
following type of information to be included in the plan of study: 
Biological, hydrographical and meteorological data; physical monitoring 
data; engineering or diffusion models; laboratory studies; 
representative important species; and other relevant information. In 
selecting representative important species, special consideration shall 
be given to species mentioned in applicable water quality standards. 
After the discharger submits its detailed plan of study, the Director 
shall either approve the plan or specify any necessary revisions to the 
plan. The discharger shall provide any additional information or studies 
which the Director subsequently determines necessary to support the 
demonstration, including such studies or inspections as may be necessary 
to select representative important species. The discharger may provide 
any additional information or studies which the discharger feels are 
appropriate to support the demonstration.
    (c) Any application for the renewal of a section 316(a) variance 
shall include only such information described in paragraphs (a) and (b) 
of this section as the Director requests within 60 days after receipt of 
the permit application.

[[Page 365]]

    (d) The Director shall promptly notify the Secretary of Commerce and 
the Secretary of the Interior, and any affected State of the filing of 
the request and shall consider any timely recommendations they submit.
    (e) In making the demonstration the discharger shall consider any 
information or guidance published by EPA to assist in making such 
demonstrations.
    (f) If an applicant desires a ruling on a section 316(a) application 
before the ruling on any other necessary permit terms and conditions, 
(as provided by Sec. 124.65), it shall so request upon filing its 
application under paragraph (a) of this section. This request shall be 
granted or denied at the discretion of the Director.

    Note: At the expiration of the permit, any discharger holding a 
section 316(a) variance should be prepared to support the continuation 
of the variance with studies based on the discharger's actual operation 
experience.

[44 FR 32948, June 7, 1979, as amended at 45 FR 33513, May 19, 1980; 65 
FR 30913, May 15, 2000]



Sec. 125.73  Criteria and standards for the determination of alternative 

effluent limitations under section 316(a).

    (a) Thermal discharge effluent limitations or standards established 
in permits may be less stringent than those required by applicable 
standards and limitations if the discharger demonstrates to the 
satisfaction of the director that such effluent limitations are more 
stringent than necessary to assure the protection and propagation of a 
balanced, indigenous community of shellfish, fish and wildlife in and on 
the body of water into which the discharge is made. This demonstration 
must show that the alternative effluent limitation desired by the 
discharger, considering the cumulative impact of its thermal discharge 
together with all other significant impacts on the species affected, 
will assure the protection and propagation of a balanced indigenous 
community of shellfish, fish and wildlife in and on the body of water 
into which the discharge is to be made.
    (b) In determining whether or not the protection and propagation of 
the affected species will be assured, the Director may consider any 
information contained or referenced in any applicable thermal water 
quality criteria and thermal water quality information published by the 
Administrator under section 304(a) of the Act, or any other information 
he deems relevant.
    (c) (1) Existing dischargers may base their demonstration upon the 
absence of prior appreciable harm in lieu of predictive studies. Any 
such demonstrations shall show:
    (i) That no appreciable harm has resulted from the normal component 
of the discharge (taking into account the interaction of such thermal 
component with other pollutants and the additive effect of other thermal 
sources to a balanced, indigenous community of shellfish, fish and 
wildlife in and on the body of water into which the discharge has been 
made; or
    (ii) That despite the occurrence of such previous harm, the desired 
alternative effluent limitations (or appropriate modifications thereof) 
will nevertheless assure the protection and propagation of a balanced, 
indigenous community of shellfish, fish and wildlife in and on the body 
of water into which the discharge is made.
    (2) In determining whether or not prior appreciable harm has 
occurred, the Director shall consider the length of time in which the 
applicant has been discharging and the nature of the discharge.



Subpart I_Requirements Applicable to Cooling Water Intake Structures for 
             New Facilities Under Section 316(b) of the Act

    Source: 66 FR 65338, Dec. 18, 2001, unless otherwise noted.



Sec. 125.80  What are the purpose and scope of this subpart?

    (a) This subpart establishes requirements that apply to the 
location, design, construction, and capacity of cooling water intake 
structures at new facilities. The purpose of these requirements is to 
establish the best technology available for minimizing adverse 
environmental impact associated with the use of cooling water intake

[[Page 366]]

structures. These requirements are implemented through National 
Pollutant Discharge Elimination System (NPDES) permits issued under 
section 402 of the Clean Water Act (CWA).
    (b) This subpart implements section 316(b) of the CWA for new 
facilities. Section 316(b) of the CWA provides that any standard 
established pursuant to sections 301 or 306 of the CWA and applicable to 
a point source shall require that the location, design, construction, 
and capacity of cooling water intake structures reflect the best 
technology available for minimizing adverse environmental impact.
    (c) New facilities that do not meet the threshold requirements 
regarding amount of water withdrawn or percentage of water withdrawn for 
cooling water purposes in Sec. 125.81(a) must meet requirements 
determined on a case-by-case, best professional judgement (BPJ) basis.
    (d) Nothing in this subpart shall be construed to preclude or deny 
the right of any State or political subdivision of a State or any 
interstate agency under section 510 of the CWA to adopt or enforce any 
requirement with respect to control or abatement of pollution that is 
more stringent than those required by Federal law.



Sec. 125.81  Who is subject to this subpart?

    (a) This subpart applies to a new facility if it:
    (1) Is a point source that uses or proposes to use a cooling water 
intake structure;
    (2) Has at least one cooling water intake structure that uses at 
least 25 percent of the water it withdraws for cooling purposes as 
specified in paragraph (c) of this section; and
    (3) Has a design intake flow greater than two (2) million gallons 
per day (MGD).
    (b) Use of a cooling water intake structure includes obtaining 
cooling water by any sort of contract or arrangement with an independent 
supplier (or multiple suppliers) of cooling water if the supplier or 
suppliers withdraw(s) water from waters of the United States. Use of 
cooling water does not include obtaining cooling water from a public 
water system or the use of treated effluent that otherwise would be 
discharged to a water of the U.S. This provision is intended to prevent 
circumvention of these requirements by creating arrangements to receive 
cooling water from an entity that is not itself a point source.
    (c) The threshold requirement that at least 25 percent of water 
withdrawn be used for cooling purposes must be measured on an average 
monthly basis. A new facility meets the 25 percent cooling water 
threshold if, based on the new facility's design, any monthly average 
over a year for the percentage of cooling water withdrawn is expected to 
equal or exceed 25 percent of the total water withdrawn.
    (d) This subpart does not apply to facilities that employ cooling 
water intake structures in the offshore and coastal subcategories of the 
oil and gas extraction point source category as defined under 40 CFR 
435.10 and 40 CFR 435.40.



Sec. 125.82  When must I comply with this subpart?

    You must comply with this subpart when an NPDES permit containing 
requirements consistent with this subpart is issued to you.



Sec. 125.83  What special definitions apply to this subpart?

    The following special definitions apply to this subpart:
    Annual mean flow means the average of daily flows over a calendar 
year. Historical data (up to 10 years) must be used where available.
    Closed-cycle recirculating system means a system designed, using 
minimized makeup and blowdown flows, to withdraw water from a natural or 
other water source to support contact and/or noncontact cooling uses 
within a facility. The water is usually sent to a cooling canal or 
channel, lake, pond, or tower to allow waste heat to be dissipated to 
the atmosphere and then is returned to the system. (Some facilities 
divert the waste heat to other process operations.) New source water 
(make-up water) is added to the system to replenish losses that have 
occurred due to blowdown, drift, and evaporation.

[[Page 367]]

    Cooling water means water used for contact or noncontact cooling, 
including water used for equipment cooling, evaporative cooling tower 
makeup, and dilution of effluent heat content. The intended use of the 
cooling water is to absorb waste heat rejected from the process or 
processes used, or from auxiliary operations on the facility's premises. 
Cooling water that is used in a manufacturing process either before or 
after it is used for cooling is considered process water for the 
purposes of calculating the percentage of a new facility's intake flow 
that is used for cooling purposes in Sec. 125.81(c).
    Cooling water intake structure means the total physical structure 
and any associated constructed waterways used to withdraw cooling water 
from waters of the U.S. The cooling water intake structure extends from 
the point at which water is withdrawn from the surface water source up 
to, and including, the intake pumps.
    Design intake flow means the value assigned (during the facility's 
design) to the total volume of water withdrawn from a source water body 
over a specific time period.
    Design intake velocity means the value assigned (during the design 
of a cooling water intake structure) to the average speed at which 
intake water passes through the open area of the intake screen (or other 
device) against which organisms might be impinged or through which they 
might be entrained.
    Entrainment means the incorporation of all life stages of fish and 
shellfish with intake water flow entering and passing through a cooling 
water intake structure and into a cooling water system.
    Estuary means a semi-enclosed body of water that has a free 
connection with open seas and within which the seawater is measurably 
diluted with fresh water derived from land drainage. The salinity of an 
estuary exceeds 0.5 parts per thousand (by mass) but is typically less 
than 30 parts per thousand (by mass).
    Existing facility means any facility that is not a new facility.
    Freshwater river or stream means a lotic (free-flowing) system that 
does not receive significant inflows of water from oceans or bays due to 
tidal action. For the purposes of this rule, a flow-through reservoir 
with a retention time of 7 days or less will be considered a freshwater 
river or stream.
    Hydraulic zone of influence means that portion of the source 
waterbody hydraulically affected by the cooling water intake structure 
withdrawal of water.
    Impingement means the entrapment of all life stages of fish and 
shellfish on the outer part of an intake structure or against a 
screening device during periods of intake water withdrawal.
    Lake or reservoir means any inland body of open water with some 
minimum surface area free of rooted vegetation and with an average 
hydraulic retention time of more than 7 days. Lakes or reservoirs might 
be natural water bodies or impounded streams, usually fresh, surrounded 
by land or by land and a man-made retainer (e.g., a dam). Lakes or 
reservoirs might be fed by rivers, streams, springs, and/or local 
precipitation. Flow-through reservoirs with an average hydraulic 
retention time of 7 days or less should be considered a freshwater river 
or stream.
    Maximize means to increase to the greatest amount, extent, or degree 
reasonably possible.
    Minimize means to reduce to the smallest amount, extent, or degree 
reasonably possible.
    Natural thermal stratification means the naturally-occurring 
division of a waterbody into horizontal layers of differing densities as 
a result of variations in temperature at different depths.
    New facility means any building, structure, facility, or 
installation that meets the definition of a ``new source'' or ``new 
discharger'' in 40 CFR 122.2 and 122.29(b)(1), (2), and (4) and is a 
greenfield or stand-alone facility; commences construction after January 
17, 2002; and uses either a newly constructed cooling water intake 
structure, or an existing cooling water intake structure whose design 
capacity is increased to accommodate the intake of additional cooling 
water. New facilities include only ``greenfield'' and ``stand-alone'' 
facilities. A greenfield facility is a facility that is constructed

[[Page 368]]

at a site at which no other source is located, or that totally replaces 
the process or production equipment at an existing facility (see 40 CFR 
122.29(b)(1)(i) and (ii)). A stand-alone facility is a new, separate 
facility that is constructed on property where an existing facility is 
located and whose processes are substantially independent of the 
existing facility at the same site (see 40 CFR 122.29(b)(1)(iii)). New 
facility does not include new units that are added to a facility for 
purposes of the same general industrial operation (for example, a new 
peaking unit at an electrical generating station).
    (1) Examples of ``new facilities'' include, but are not limited to: 
the following scenarios:
    (i) A new facility is constructed on a site that has never been used 
for industrial or commercial activity. It has a new cooling water intake 
structure for its own use.
    (ii) A facility is demolished and another facility is constructed in 
its place. The newly-constructed facility uses the original facility's 
cooling water intake structure, but modifies it to increase the design 
capacity to accommodate the intake of additional cooling water.
    (iii) A facility is constructed on the same property as an existing 
facility, but is a separate and independent industrial operation. The 
cooling water intake structure used by the original facility is modified 
by constructing a new intake bay for the use of the newly constructed 
facility or is otherwise modified to increase the intake capacity for 
the new facility.
    (2) Examples of facilities that would not be considered a ``new 
facility'' include, but are not limited to, the following scenarios:
    (i) A facility in commercial or industrial operation is modified and 
either continues to use its original cooling water intake structure or 
uses a new or modified cooling water intake structure.
    (ii) A facility has an existing intake structure. Another facility 
(a separate and independent industrial operation), is constructed on the 
same property and connects to the facility's cooling water intake 
structure behind the intake pumps, and the design capacity of the 
cooling water intake structure has not been increased. This facility 
would not be considered a ``new facility'' even if routine maintenance 
or repairs that do not increase the design capacity were performed on 
the intake structure.
    Ocean means marine open coastal waters with a salinity greater than 
or equal to 30 parts per thousand (by mass).
    Source water means the water body (waters of the U.S.) from which 
the cooling water is withdrawn.
    Thermocline means the middle layer of a thermally stratified lake or 
reservoir. In this layer, there is a rapid decrease in temperatures.
    Tidal excursion means the horizontal distance along the estuary or 
tidal river that a particle moves during one tidal cycle of ebb and 
flow.
    Tidal river means the most seaward reach of a river or stream where 
the salinity is typically less than or equal to 0.5 parts per thousand 
(by mass) at a time of annual low flow and whose surface elevation 
responds to the effects of coastal lunar tides.

[66 FR 65338, Dec. 18, 2001, as amended at 68 FR 36754, June 19, 2003]



Sec. 125.84  As an owner or operator of a new facility, what must I do to 

comply with this subpart?

    (a)(1) The owner or operator of a new facility must comply with 
either:
    (i) Track I in paragraph (b) or (c) of this section; or
    (ii) Track II in paragraph (d) of this section.
    (2) In addition to meeting the requirements in paragraph (b), (c), 
or (d) of this section, the owner or operator of a new facility may be 
required to comply with paragraph (e) of this section.
    (b) Track I requirements for new facilities that withdraw equal to 
or greater than 10 MGD. You must comply with all of the following 
requirements:
    (1) You must reduce your intake flow, at a minimum, to a level 
commensurate with that which can be attained by a closed-cycle 
recirculating cooling water system;
    (2) You must design and construct each cooling water intake 
structure at

[[Page 369]]

your facility to a maximum through-screen design intake velocity of 0.5 
ft/s;
    (3) You must design and construct your cooling water intake 
structure such that the total design intake flow from all cooling water 
intake structures at your facility meets the following requirements:
    (i) For cooling water intake structures located in a freshwater 
river or stream, the total design intake flow must be no greater than 
five (5) percent of the source water annual mean flow;
    (ii) For cooling water intake structures located in a lake or 
reservoir, the total design intake flow must not disrupt the natural 
thermal stratification or turnover pattern (where present) of the source 
water except in cases where the disruption is determined to be 
beneficial to the management of fisheries for fish and shellfish by any 
fishery management agency(ies);
    (iii) For cooling water intake structures located in an estuary or 
tidal river, the total design intake flow over one tidal cycle of ebb 
and flow must be no greater than one (1) percent of the volume of the 
water column within the area centered about the opening of the intake 
with a diameter defined by the distance of one tidal excursion at the 
mean low water level;
    (4) You must select and implement design and construction 
technologies or operational measures for minimizing impingement 
mortality of fish and shellfish if:
    (i) There are threatened or endangered or otherwise protected 
federal, state, or tribal species, or critical habitat for these 
species, within the hydraulic zone of influence of the cooling water 
intake structure; or
    (ii) Based on information submitted by any fishery management 
agency(ies) or other relevant information, there are migratory and/or 
sport or commercial species of impingement concern to the Director that 
pass through the hydraulic zone of influence of the cooling water intake 
structure; or
    (iii) It is determined by the Director, based on information 
submitted by any fishery management agency(ies) or other relevant 
information, that the proposed facility, after meeting the technology-
based performance requirements in paragraphs (b)(1), (2), and (3) of 
this section, would still contribute unacceptable stress to the 
protected species, critical habitat of those species, or species of 
concern;
    (5) You must select and implement design and construction 
technologies or operational measures for minimizing entrainment of 
entrainable life stages of fish and shellfish if:
    (i) There are threatened or endangered or otherwise protected 
federal, state, or tribal species, or critical habitat for these 
species, within the hydraulic zone of influence of the cooling water 
intake structure; or
    (ii) Based on information submitted by any fishery management 
agency(ies) or other relevant information, there are or would be 
undesirable cumulative stressors affecting entrainable life stages of 
species of concern to the Director and the Director determines that the 
proposed facility, after meeting the technology-based performance 
requirements in paragraphs (b)(1), (2), and (3) of this section, would 
still contribute unacceptable stress to the protected species , critical 
habitat of those species, or these species of concern;
    (6) You must submit the application information required in 40 CFR 
122.21(r) and Sec. 125.86(b);
    (7) You must implement the monitoring requirements specified in 
Sec. 125.87;
    (8) You must implement the record-keeping requirements specified in 
Sec. 125.88.
    (c) Track I requirements for new facilities that withdraw equal to 
or greater than 2 MGD and less than 10 MGD and that choose not to comply 
with paragraph (b) of this section. You must comply with all the 
following requirements:
    (1) You must design and construct each cooling water intake 
structure at your facility to a maximum through-screen design intake 
velocity of 0.5 ft/s;
    (2) You must design and construct your cooling water intake 
structure such that the total design intake flow from all cooling water 
intake structures at your facility meets the following requirements:
    (i) For cooling water intake structures located in a freshwater 
river or stream, the total design intake flow

[[Page 370]]

must be no greater than five (5) percent of the source water annual mean 
flow;
    (ii) For cooling water intake structures located in a lake or 
reservoir, the total design intake flow must not disrupt the natural 
thermal stratification or turnover pattern (where present) of the source 
water except in cases where the disruption is determined to be 
beneficial to the management of fisheries for fish and shellfish by any 
fishery management agency(ies);
    (iii) For cooling water intake structures located in an estuary or 
tidal river, the total design intake flow over one tidal cycle of ebb 
and flow must be no greater than one (1) percent of the volume of the 
water column within the area centered about the opening of the intake 
with a diameter defined by the distance of one tidal excursion at the 
mean low water level;
    (3) You must select and implement design and construction 
technologies or operational measures for minimizing impingement 
mortality of fish and shellfish if:
    (i) There are threatened or endangered or otherwise protected 
federal, state, or tribal species, or critical habitat for these 
species, within the hydraulic zone of influence of the cooling water 
intake structure; or
    (ii) Based on information submitted by any fishery management 
agency(ies) or other relevant information, there are migratory and/or 
sport or commercial species of impingement concern to the Director that 
pass through the hydraulic zone of influence of the cooling water intake 
structure; or
    (iii) It is determined by the Director, based on information 
submitted by any fishery management agency(ies) or other relevant 
information, that the proposed facility, after meeting the technology-
based performance requirements in paragraphs (c)(1) and (2) of this 
section, would still contribute unacceptable stress to the protected 
species, critical habitat of those species, or species of concern;
    (4) You must select and implement design and construction 
technologies or operational measures for minimizing entrainment of 
entrainable life stages of fish and shellfish;
    (5) You must submit the application information required in 40 CFR 
122.21(r) and Sec. 125.86(b)(2), (3), and (4);
    (6) You must implement the monitoring requirements specified in 
Sec. 125.87;
    (7) You must implement the recordkeeping requirements specified in 
Sec. 125.88.
    (d) Track II. The owner or operator of a new facility that chooses 
to comply under Track II must comply with the following requirements:
    (1) You must demonstrate to the Director that the technologies 
employed will reduce the level of adverse environmental impact from your 
cooling water intake structures to a comparable level to that which you 
would achieve were you to implement the requirements of paragraphs 
(b)(1) and (2) of this section. This demonstration must include a 
showing that the impacts to fish and shellfish, including important 
forage and predator species, within the watershed will be comparable to 
those which would result if you were to implement the requirements of 
paragraphs (b)(1) and (2) of this section. This showing may include 
consideration of impacts other than impingement mortality and 
entrainment, including measures that will result in increases in fish 
and shellfish, but it must demonstrate comparable performance for 
species that the Director identifies as species of concern. In 
identifying such species, the Director may consider information provided 
by any fishery management agency(ies) along with data and information 
from other sources.
    (2) You must design and construct your cooling water intake 
structure such that the total design intake flow from all cooling water 
intake structures at your facility meet the following requirements:
    (i) For cooling water intake structures located in a freshwater 
river or stream, the total design intake flow must be no greater than 
five (5) percent of the source water annual mean flow;
    (ii) For cooling water intake structures located in a lake or 
reservoir, the total design intake flow must not disrupt the natural 
thermal stratification or turnover pattern (where present) of the source 
water except in cases where

[[Page 371]]

the disruption is determined to be beneficial to the management of 
fisheries for fish and shellfish by any fishery management agency(ies);
    (iii) For cooling water intake structures located in an estuary or 
tidal river, the total design intake flow over one tidal cycle of ebb 
and flow must be no greater than one (1) percent of the volume of the 
water column within the area centered about the opening of the intake 
with a diameter defined by the distance of one tidal excursion at the 
mean low water level.
    (3) You must submit the application information required in 40 CFR 
122.21(r) and Sec. 125.86(c).
    (4) You must implement the monitoring requirements specified in 
Sec. 125.87.
    (5) You must implement the record-keeping requirements specified in 
Sec. 125.88.
    (e) You must comply with any more stringent requirements relating to 
the location, design, construction, and capacity of a cooling water 
intake structure or monitoring requirements at a new facility that the 
Director deems are reasonably necessary to comply with any provision of 
state law, including compliance with applicable state water quality 
standards (including designated uses, criteria, and antidegradation 
requirements).

[66 FR 65338, Dec. 18, 2001, as amended at 68 FR 36754, June 19, 2003]



Sec. 125.85  May alternative requirements be authorized?

    (a) Any interested person may request that alternative requirements 
less stringent than those specified in Sec. 125.84(a) through (e) be 
imposed in the permit. The Director may establish alternative 
requirements less stringent than the requirements of Sec. 125.84(a) 
through (e) only if:
    (1) There is an applicable requirement under Sec. 125.84(a) through 
(e);
    (2) The Director determines that data specific to the facility 
indicate that compliance with the requirement at issue would result in 
compliance costs wholly out of proportion to the costs EPA considered in 
establishing the requirement at issue or would result in significant 
adverse impacts on local air quality, significant adverse impacts on 
local water resources other than impingement or entrainment, or 
significant adverse impacts on local energy markets;
    (3) The alternative requirement requested is no less stringent than 
justified by the wholly out of proportion cost or the significant 
adverse impacts on local air quality, significant adverse impacts on 
local water resources other than impingement or entrainment, or 
significant adverse impacts on local energy markets; and
    (4) The alternative requirement will ensure compliance with other 
applicable provisions of the Clean Water Act and any applicable 
requirement of state law.
    (b) The burden is on the person requesting the alternative 
requirement to demonstrate that alternative requirements should be 
authorized.

[66 FR 65338, Dec. 18, 2001, as amended at 68 FR 36755, June 19, 2003]



Sec. 125.86  As an owner or operator of a new facility, what must I collect 

and submit when I apply for my new or reissued NPDES permit?

    (a)(1) As an owner or operator of a new facility, you must submit to 
the Director a statement that you intend to comply with either:
    (i) The Track I requirements for new facilities that withdraw equal 
to or greater than 10 MGD in Sec. 125.84(b);
    (ii) The Track I requirements for new facilities that withdraw equal 
to or greater than 2 MGD and less than 10 MGD in Sec. 125.84(c);
    (iii) The requirements for Track II in Sec. 125.84 (d).
    (2) You must also submit the application information required by 40 
CFR 122.21(r) and the information required in either paragraph (b) of 
this section for Track I or paragraph (c) of this section for Track II 
when you apply for a new or reissued NPDES permit in accordance with 40 
CFR 122.21.
    (b) Track I application requirements. To demonstrate compliance with 
Track I requirements in Sec. 125.84(b) or (c), you must collect and 
submit to the Director the information in paragraphs (b)(1) through (4) 
of this section.
    (1) Flow reduction information. If you must comply with the flow 
reduction requirements in Sec. 125.84(b)(1), you must

[[Page 372]]

submit the following information to the Director to demonstrate that you 
have reduced your flow to a level commensurate with that which can be 
attained by a closed-cycle recirculating cooling water system:
    (i) A narrative description of your system that has been designed to 
reduce your intake flow to a level commensurate with that which can be 
attained by a closed-cycle recirculating cooling water system and any 
engineering calculations, including documentation demonstrating that 
your make-up and blowdown flows have been minimized; and
    (ii) If the flow reduction requirement is met entirely, or in part, 
by reusing or recycling water withdrawn for cooling purposes in 
subsequent industrial processes, you must provide documentation that the 
amount of cooling water that is not reused or recycled has been 
minimized.
    (2) Velocity information. You must submit the following information 
to the Director to demonstrate that you are complying with the 
requirement to meet a maximum through-screen design intake velocity of 
no more than 0.5 ft/s at each cooling water intake structure as required 
in Sec. 125.84(b)(2) and (c)(1):
    (i) A narrative description of the design, structure, equipment, and 
operation used to meet the velocity requirement; and
    (ii) Design calculations showing that the velocity requirement will 
be met at minimum ambient source water surface elevations (based on best 
professional judgement using available hydrological data) and maximum 
head loss across the screens or other device.
    (3) Source waterbody flow information. You must submit to the 
Director the following information to demonstrate that your cooling 
water intake structure meets the flow requirements in Sec. 125.84(b)(3) 
and (c)(2):
    (i) If your cooling water intake structure is located in a 
freshwater river or stream, you must provide the annual mean flow and 
any supporting documentation and engineering calculations to show that 
your cooling water intake structure meets the flow requirements;
    (ii) If your cooling water intake structure is located in an estuary 
or tidal river, you must provide the mean low water tidal excursion 
distance and any supporting documentation and engineering calculations 
to show that your cooling water intake structure facility meets the flow 
requirements; and
    (iii) If your cooling water intake structure is located in a lake or 
reservoir, you must provide a narrative description of the water body 
thermal stratification, and any supporting documentation and engineering 
calculations to show that the natural thermal stratification and 
turnover pattern will not be disrupted by the total design intake flow. 
In cases where the disruption is determined to be beneficial to the 
management of fisheries for fish and shellfish you must provide 
supporting documentation and include a written concurrence from any 
fisheries management agency(ies) with responsibility for fisheries 
potentially affected by your cooling water intake structure(s).
    (4) Design and Construction Technology Plan. To comply with Sec. 
125.84(b)(4) and (5), or (c)(3) and (c)(4), you must submit to the 
Director the following information in a Design and Construction 
Technology Plan:
    (i) Information to demonstrate whether or not you meet the criteria 
in Sec. 125.84(b)(4) and (b)(5), or (c)(3) and (c)(4);
    (ii) Delineation of the hydraulic zone of influence for your cooling 
water intake structure;
    (iii) New facilities required to install design and construction 
technologies and/or operational measures must develop a plan explaining 
the technologies and measures you have selected based on information 
collected for the Source Water Biological Baseline Characterization 
required by 40 CFR 122.21(r)(3). (Examples of appropriate technologies 
include, but are not limited to, wedgewire screens, fine mesh screens, 
fish handling and return systems, barrier nets, aquatic filter barrier 
systems, etc. Examples of appropriate operational measures include, but 
are not limited to, seasonal shutdowns or reductions in flow, continuous 
operations of screens, etc.) The

[[Page 373]]

plan must contain the following information:
    (A) A narrative description of the design and operation of the 
design and construction technologies, including fish-handling and return 
systems, that you will use to maximize the survival of those species 
expected to be most susceptible to impingement. Provide species-specific 
information that demonstrates the efficacy of the technology;
    (B) A narrative description of the design and operation of the 
design and construction technologies that you will use to minimize 
entrainment of those species expected to be the most susceptible to 
entrainment. Provide species-specific information that demonstrates the 
efficacy of the technology; and
    (C) Design calculations, drawings, and estimates to support the 
descriptions provided in paragraphs (b)(4)(iii)(A) and (B) of this 
section.
    (c) Application requirements for Track II. If you have chosen to 
comply with the requirements of Track II in Sec. 125.84(d) you must 
collect and submit the following information:
    (1) Source waterbody flow information. You must submit to the 
Director the following information to demonstrate that your cooling 
water intake structure meets the source water body requirements in Sec. 
125.84(d)(2):
    (i) If your cooling water intake structure is located in a 
freshwater river or stream, you must provide the annual mean flow and 
any supporting documentation and engineering calculations to show that 
your cooling water intake structure meets the flow requirements;
    (ii) If your cooling water intake structure is located in an estuary 
or tidal river, you must provide the mean low water tidal excursion 
distance and any supporting documentation and engineering calculations 
to show that your cooling water intake structure facility meets the flow 
requirements; and
    (iii) If your cooling water intake structure is located in a lake or 
reservoir, you must provide a narrative description of the water body 
thermal stratification, and any supporting documentation and engineering 
calculations to show that the natural thermal stratification and thermal 
or turnover pattern will not be disrupted by the total design intake 
flow. In cases where the disruption is determined to be beneficial to 
the management of fisheries for fish and shellfish you must provide 
supporting documentation and include a written concurrence from any 
fisheries management agency(ies) with responsibility for fisheries 
potentially affected by your cooling water intake structure(s).
    (2) Track II Comprehensive Demonstration Study. You must perform and 
submit the results of a Comprehensive Demonstration Study (Study). This 
information is required to characterize the source water baseline in the 
vicinity of the cooling water intake structure(s), characterize 
operation of the cooling water intake(s), and to confirm that the 
technology(ies) proposed and/or implemented at your cooling water intake 
structure reduce the impacts to fish and shellfish to levels comparable 
to those you would achieve were you to implement the requirements in 
Sec. 125.84(b)(1)and (2) of Track I. To meet the ``comparable level'' 
requirement, you must demonstrate that:
    (i) You have reduced both impingement mortality and entrainment of 
all life stages of fish and shellfish to 90 percent or greater of the 
reduction that would be achieved through Sec. 125.84(b)(1) and (2); or
    (ii) If your demonstration includes consideration of impacts other 
than impingement mortality and entrainment, that the measures taken will 
maintain the fish and shellfish in the waterbody at a substantially 
similar level to that which would be achieved through Sec. 125.84(b)(1) 
and (2); and
    (iii) You must develop and submit a plan to the Director containing 
a proposal for how information will be collected to support the study. 
The plan must include:
    (A) A description of the proposed and/or implemented technology(ies) 
to be evaluated in the Study;
    (B) A list and description of any historical studies characterizing 
the physical and biological conditions in the vicinity of the proposed 
or actual intakes and their relevancy to the proposed Study. If you 
propose to rely on existing source water body data, it must be no more 
than 5 years old, you must

[[Page 374]]

demonstrate that the existing data are sufficient to develop a 
scientifically valid estimate of potential impingement and entrainment 
impacts, and provide documentation showing that the data were collected 
using appropriate quality assurance/quality control procedures;
    (C) Any public participation or consultation with Federal or State 
agencies undertaken in developing the plan; and
    (D) A sampling plan for data that will be collected using actual 
field studies in the source water body. The sampling plan must document 
all methods and quality assurance procedures for sampling, and data 
analysis. The sampling and data analysis methods you propose must be 
appropriate for a quantitative survey and based on consideration of 
methods used in other studies performed in the source water body. The 
sampling plan must include a description of the study area (including 
the area of influence of the cooling water intake structure and at least 
100 meters beyond); taxonomic identification of the sampled or evaluated 
biological assemblages (including all life stages of fish and 
shellfish); and sampling and data analysis methods; and
    (iv) You must submit documentation of the results of the Study to 
the Director. Documentation of the results of the Study must include:
    (A) Source Water Biological Study. The Source Water Biological Study 
must include:
    (1) A taxonomic identification and characterization of aquatic 
biological resources including: a summary of historical and contemporary 
aquatic biological resources; determination and description of the 
target populations of concern (those species of fish and shellfish and 
all life stages that are most susceptible to impingement and 
entrainment); and a description of the abundance and temporal/spatial 
characterization of the target populations based on the collection of 
multiple years of data to capture the seasonal and daily activities 
(e.g., spawning, feeding and water column migration) of all life stages 
of fish and shellfish found in the vicinity of the cooling water intake 
structure;
    (2) An identification of all threatened or endangered species that 
might be susceptible to impingement and entrainment by the proposed 
cooling water intake structure(s); and
    (3) A description of additional chemical, water quality, and other 
anthropogenic stresses on the source waterbody.
    (B) Evaluation of potential cooling water intake structure effects. 
This evaluation will include:
    (1) Calculations of the reduction in impingement mortality and 
entrainment of all life stages of fish and shellfish that would need to 
be achieved by the technologies you have selected to implement to meet 
requirements under Track II. To do this, you must determine the 
reduction in impingement mortality and entrainment that would be 
achieved by implementing the requirements of Sec. 125.84(b)(1) and (2) 
of Track I at your site.
    (2) An engineering estimate of efficacy for the proposed and/or 
implemented technologies used to minimize impingement mortality and 
entrainment of all life stages of fish and shellfish and maximize 
survival of impinged life stages of fish and shellfish. You must 
demonstrate that the technologies reduce impingement mortality and 
entrainment of all life stages of fish and shellfish to a comparable 
level to that which you would achieve were you to implement the 
requirements in Sec. 125.84(b)(1) and (2) of Track I. The efficacy 
projection must include a site-specific evaluation of technology(ies) 
suitability for reducing impingement mortality and entrainment based on 
the results of the Source Water Biological Study in paragraph 
(c)(2)(iv)(A) of this section. Efficacy estimates may be determined 
based on case studies that have been conducted in the vicinity of the 
cooling water intake structure and/or site-specific technology prototype 
studies.
    (C) Evaluation of proposed restoration measures. If you propose to 
use restoration measures to maintain the fish and shellfish as allowed 
in Sec. 125.84(d)(1)(i), you must provide the following information to 
the Director:

[[Page 375]]

    (1) Information and data to show that you have coordinated with the 
appropriate fishery management agency(ies); and
    (2) A plan that provides a list of the measures you plan to 
implement and how you will demonstrate and continue to ensure that your 
restoration measures will maintain the fish and shellfish in the 
waterbody to a substantially similar level to that which would be 
achieved through Sec. 125.84(b)(1) and (2).
    (D) Verification monitoring plan. You must include in the Study the 
following:
    (1) A plan to conduct, at a minimum, two years of monitoring to 
verify the full-scale performance of the proposed or implemented 
technologies, operational measures. The verification study must begin at 
the start of operations of the cooling water intake structure and 
continue for a sufficient period of time to demonstrate that the 
facility is reducing the level of impingement and entrainment to the 
level documented in paragraph (c)(2)(iv)(B) of this section. The plan 
must describe the frequency of monitoring and the parameters to be 
monitored. The Director will use the verification monitoring to confirm 
that you are meeting the level of impingement mortality and entrainment 
reduction required in Sec. 125.84(d), and that the operation of the 
technology has been optimized.
    (2) A plan to conduct monitoring to verify that the restoration 
measures will maintain the fish and shellfish in the waterbody to a 
substantially similar level as that which would be achieved through 
Sec. 125.84(b)(1) and (2).



Sec. 125.87  As an owner or operator of a new facility, must I perform 

monitoring?

    As an owner or operator of a new facility, you will be required to 
perform monitoring to demonstrate your compliance with the requirements 
specified in Sec. 125.84.
    (a) Biological monitoring. You must monitor both impingement and 
entrainment of the commercial, recreational, and forage base fish and 
shellfish species identified in either the Source Water Baseline 
Biological Characterization data required by 40 CFR 122.21(r)(3) or the 
Comprehensive Demonstration Study required by Sec. 125.86(c)(2), 
depending on whether you chose to comply with Track I or Track II. The 
monitoring methods used must be consistent with those used for the 
Source Water Baseline Biological Characterization data required in 40 
CFR 122.21(r)(3) or the Comprehensive Demonstration Study required by 
Sec. 125.86(c)(2). You must follow the monitoring frequencies 
identified below for at least two (2) years after the initial permit 
issuance. After that time, the Director may approve a request for less 
frequent sampling in the remaining years of the permit term and when the 
permit is reissued, if supporting data show that less frequent 
monitoring would still allow for the detection of any seasonal and daily 
variations in the species and numbers of individuals that are impinged 
or entrained.
    (1) Impingement sampling. You must collect samples to monitor 
impingement rates (simple enumeration) for each species over a 24-hour 
period and no less than once per month when the cooling water intake 
structure is in operation.
    (2) Entrainment sampling. You must collect samples to monitor 
entrainment rates (simple enumeration) for each species over a 24-hour 
period and no less than biweekly during the primary period of 
reproduction, larval recruitment, and peak abundance identified during 
the Source Water Baseline Biological Characterization required by 40 CFR 
122.21(r)(3) or the Comprehensive Demonstration Study required in Sec. 
125.86(c)(2). You must collect samples only when the cooling water 
intake structure is in operation.
    (b) Velocity monitoring. If your facility uses surface intake screen 
systems, you must monitor head loss across the screens and correlate the 
measured value with the design intake velocity. The head loss across the 
intake screen must be measured at the minimum ambient source water 
surface elevation (best professional judgment based on available 
hydrological data). The maximum head loss across the screen for each 
cooling water intake structure must be used to determine compliance with 
the velocity requirement in

[[Page 376]]

Sec. 125.84(b)(2) or (c)(1). If your facility uses devices other than 
surface intake screens, you must monitor velocity at the point of entry 
through the device. You must monitor head loss or velocity during 
initial facility startup, and thereafter, at the frequency specified in 
your NPDES permit, but no less than once per quarter.
    (c) Visual or remote inspections. You must either conduct visual 
inspections or employ remote monitoring devices during the period the 
cooling water intake structure is in operation. You must conduct visual 
inspections at least weekly to ensure that any design and construction 
technologies required in Sec. 125.84(b)(4) and (5), or (c)(3) and (4) 
are maintained and operated to ensure that they will continue to 
function as designed. Alternatively, you must inspect via remote 
monitoring devices to ensure that the impingement and entrainment 
technologies are functioning as designed.



Sec. 125.88  As an owner or operator of a new facility, must I keep records 

and report?

    As an owner or operator of a new facility you are required to keep 
records and report information and data to the Director as follows:
    (a) You must keep records of all the data used to complete the 
permit application and show compliance with the requirements, any 
supplemental information developed under Sec. 125.86, and any 
compliance monitoring data submitted under Sec. 125.87, for a period of 
at least three (3) years from the date of permit issuance. The Director 
may require that these records be kept for a longer period.
    (b) You must provide the following to the Director in a yearly 
status report:
    (1) Biological monitoring records for each cooling water intake 
structure as required by Sec. 125.87(a);
    (2) Velocity and head loss monitoring records for each cooling water 
intake structure as required by Sec. 125.87(b); and
    (3) Records of visual or remote inspections as required in Sec. 
125.87(c).



Sec. 125.89  As the Director, what must I do to comply with the requirements 

of this subpart?

    (a) Permit application. As the Director, you must review materials 
submitted by the applicant under 40 CFR 122.21(r)(3) and Sec. 125.86 at 
the time of the initial permit application and before each permit 
renewal or reissuance.
    (1) After receiving the initial permit application from the owner or 
operator of a new facility, the Director must determine applicable 
standards in Sec. 125.84 to apply to the new facility. In addition, the 
Director must review materials to determine compliance with the 
applicable standards.
    (2) For each subsequent permit renewal, the Director must review the 
application materials and monitoring data to determine whether 
requirements, or additional requirements, for design and construction 
technologies or operational measures should be included in the permit.
    (3) For Track II facilities, the Director may review the information 
collection proposal plan required by Sec. 125.86(c)(2)(iii). The 
facility may initiate sampling and data collection activities prior to 
receiving comment from the Director.
    (b) Permitting requirements. Section 316(b) requirements are 
implemented for a facility through an NPDES permit. As the Director, you 
must determine, based on the information submitted by the new facility 
in its permit application, the appropriate requirements and conditions 
to include in the permit based on the track (Track I or Track II) the 
new facility has chosen to comply with. The following requirements must 
be included in each permit:
    (1) Cooling water intake structure requirements. At a minimum, the 
permit conditions must include the performance standards that implement 
the requirements of Sec. 125.84(b)(1), (2), (3), (4) and (5); Sec. 
125.84(c)(1), (2), (3) and (4); or Sec. 125.84(d)(1) and (2). In 
determining compliance with proportional flow requirement in Sec. Sec. 
125.84(b)(3)(ii); (c)(2)(ii); and (d)(2)(ii), the director must consider 
anthropogenic factors (those not considered ``natural'') unrelated to 
the new facility's cooling water intake structure that can influence the 
occurrence and location of a thermocline.

[[Page 377]]

These include source water inflows, other water withdrawals, managed 
water uses, wastewater discharges, and flow/level management practices 
(e.g., some reservoirs release water from below the surface, close to 
the deepest areas).
    (i) For a facility that chooses Track I, you must review the Design 
and Construction Technology Plan required in Sec. 125.86(b)(4) to 
evaluate the suitability and feasibility of the technology proposed to 
minimize impingement mortality and entrainment of all life stages of 
fish and shellfish. In the first permit issued, you must put a condition 
requiring the facility to reduce impingement mortality and entrainment 
commensurate with the implementation of the technologies in the permit. 
Under subsequent permits, the Director must review the performance of 
the technologies implemented and require additional or different design 
and construction technologies, if needed to minimize impingement 
mortality and entrainment of all life stages of fish and shellfish. In 
addition, you must consider whether more stringent conditions are 
reasonably necessary in accordance with Sec. 125.84(e).
    (ii) For a facility that chooses Track II, you must review the 
information submitted with the Comprehensive Demonstration Study 
information required in Sec. 125.86(c)(2), evaluate the suitability of 
the proposed design and construction technologies and operational 
measures to determine whether they will reduce both impingement 
mortality and entrainment of all life stages of fish and shellfish to 90 
percent or greater of the reduction that could be achieved through Track 
I. If you determine that restoration measures are appropriate at the new 
facility for consideration of impacts other than impingement mortality 
and entrainment, you must review the Evaluation of Proposed Restoration 
Measures and evaluate whether the proposed measures will maintain the 
fish and shellfish in the waterbody at a substantially similar level to 
that which would be achieved through Sec. 125.84(b)(1) and (2). In 
addition, you must review the Verification Monitoring Plan in Sec. 
125.86(c)(2)(iv)(D) and require that the proposed monitoring begin at 
the start of operations of the cooling water intake structure and 
continue for a sufficient period of time to demonstrate that the 
technologies, operational measures and restoration measures meet the 
requirements in Sec. 125.84(d)(1). Under subsequent permits, the 
Director must review the performance of the additional and /or different 
technologies or measures used and determine that they reduce the level 
of adverse environmental impact from the cooling water intake structures 
to a comparable level that the facility would achieve were it to 
implement the requirements of Sec. 125.84(b)(1) and (2).
    (2) Monitoring conditions. At a minimum, the permit must require the 
permittee to perform the monitoring required in Sec. 125.87. You may 
modify the monitoring program when the permit is reissued and during the 
term of the permit based on changes in physical or biological conditions 
in the vicinity of the cooling water intake structure. The Director may 
require continued monitoring based on the results of the Verification 
Monitoring Plan in Sec. 125.86(c)(2)(iv)(D).
    (3) Record keeping and reporting. At a minimum, the permit must 
require the permittee to report and keep records as required by Sec. 
125.88.

[66 FR 65338, Dec. 18, 2001]



Subpart J_Requirements Applicable to Cooling Water Intake Structures for 
      Phase II Existing Facilities Under Section 316(b) of the Act

    Source: 69 FR 41683, July 9, 2004, unless otherwise noted.



Sec. 125.90  What are the purpose and scope of this subpart?

    (a) This subpart establishes requirements that apply to the 
location, design, construction, and capacity of cooling water intake 
structures at existing facilities that are subject to this subpart 
(i.e., Phase II existing facilities). The purpose of these requirements 
is to establish the best technology available for minimizing adverse 
environmental impact associated with the use of cooling water intake

[[Page 378]]

structures. These requirements are implemented through National 
Pollutant Discharge Elimination System (NPDES) permits issued under 
section 402 of the Clean Water Act (CWA).
    (b) Existing facilities that are not subject to requirements under 
this or another subpart of this part must meet requirements under 
section 316(b) of the CWA determined by the Director on a case-by-case, 
best professional judgment (BPJ) basis.
    (c) Alternative regulatory requirements. Notwithstanding any other 
provision of this subpart, if a State demonstrates to the Administrator 
that it has adopted alternative regulatory requirements in its NPDES 
program that will result in environmental performance within a watershed 
that is comparable to the reductions of impingement mortality and 
entrainment that would otherwise be achieved under Sec. 125.94, the 
Administrator must approve such alternative regulatory requirements.
    (d) Nothing in this subpart shall be construed to preclude or deny 
the right of any State or political subdivision of a State or any 
interstate agency under section 510 of the CWA to adopt or enforce any 
requirement with respect to control or abatement of pollution that is 
not less stringent than those required by Federal law.

    Effective Date Note: At 72 FR 37109, July 9, 2007, Sec. 125.90(a), 
(c), and (d) were suspended.



Sec. 125.91  What is a ``Phase II Existing Facility''?

    (a) An existing facility, as defined in Sec. 125.93, is a Phase II 
existing facility subject to this subpart if it meets each of the 
following criteria:
    (1) It is a point source.
    (2) It uses or proposes to use cooling water intake structures with 
a total design intake flow of 50 million gallons per day (MGD) or more 
to withdraw cooling water from waters of the United States;
    (3) As its primary activity, the facility both generates and 
transmits electric power, or generates electric power but sells it to 
another entity for transmission; and
    (4) It uses at least 25 percent of water withdrawn exclusively for 
cooling purposes, measured on an average annual basis.
    (b) In the case of a Phase II existing facility that is co-located 
with a manufacturing facility, only that portion of the combined cooling 
water intake flow that is used by the Phase II facility to generate 
electricity for sale to another entity will be considered for purposes 
of determining whether the 50 MGD and 25 percent criteria in paragraphs 
(a)(2) and (4) of this section have been exceeded.
    (c) Use of a cooling water intake structure includes obtaining 
cooling water by any sort of contract or arrangement with one or more 
independent suppliers of cooling water if the supplier withdraws water 
from waters of the United States but is not itself a Phase II existing 
facility, except as provided in paragraph (d) of this section. This 
provision is intended to prevent circumvention of these requirements by 
creating arrangements to receive cooling water from an entity that is 
not itself a Phase II existing facility.
    (d) Notwithstanding paragraph (c) of this section, obtaining cooling 
water from a public water system or using treated effluent as cooling 
water does not constitute use of a cooling water intake structure for 
purposes of this subpart.

    Effective Date Note: At 72 FR 37109, July 9, 2007, Sec. 125.91 was 
suspended.



Sec. 125.92  [Reserved]



Sec. 125.93  What special definitions apply to this subpart?

    In addition to the definitions provided in Sec. 122.3 of this 
chapter, the following special definitions apply to this subpart:
    Adaptive management method is a type of project management method 
where a facility chooses an approach to meeting the project goal, 
monitors the effectiveness of that approach, and then based on 
monitoring and any other relevant information, makes any adjustments 
necessary to ensure continued progress toward the project's goal. This 
cycle of activity is repeated as necessary to reach the project's goal.
    Annual mean flow means the average of daily flows over a calendar 
year.
    All life stages means eggs, larvae, juveniles, and adults.

[[Page 379]]

    Calculation baseline means an estimate of impingement mortality and 
entrainment that would occur at your site assuming that: the cooling 
water system has been designed as a once-through system; the opening of 
the cooling water intake structure is located at, and the face of the 
standard \3/8\-inch mesh traveling screen is oriented parallel to, the 
shoreline near the surface of the source waterbody; and the baseline 
practices, procedures, and structural configuration are those that your 
facility would maintain in the absence of any structural or operational 
controls, including flow or velocity reductions, implemented in whole or 
in part for the purposes of reducing impingement mortality and 
entrainment. You may also choose to use the current level of impingement 
mortality and entrainment as the calculation baseline. The calculation 
baseline may be estimated using: historical impingement mortality and 
entrainment data from your facility or from another facility with 
comparable design, operational, and environmental conditions; current 
biological data collected in the waterbody in the vicinity of your 
cooling water intake structure; or current impingement mortality and 
entrainment data collected at your facility. You may request that the 
calculation baseline be modified to be based on a location of the 
opening of the cooling water intake structure at a depth other than at 
or near the surface if you can demonstrate to the Director that the 
other depth would correspond to a higher baseline level of impingement 
mortality and/or entrainment.
    Capacity utilization rate means the ratio between the average annual 
net generation of power by the facility (in MWh) and the total net 
capability of the facility to generate power (in MW) multiplied by the 
number of hours during a year. In cases where a facility has more than 
one intake structure, and each intake structure provides cooling water 
exclusively to one or more generating units, the capacity utilization 
rate may be calculated separately for each intake structure, based on 
the capacity utilization of the units it services. Applicable 
requirements under this subpart would then be determined separately for 
each intake structure. The average annual net generation should be 
measured over a five year period (if available) of representative 
operating conditions, unless the facility makes a binding commitment to 
maintain capacity utilization below 15 percent for the life of the 
permit, in which case the rate may be based on this commitment. For 
purposes of this subpart, the capacity utilization rate applies to only 
that portion of the facility that generates electricity for transmission 
or sale using a thermal cycle employing the steam water system as the 
thermodynamic medium.
    Closed-cycle recirculating system means a system designed, using 
minimized make-up and blowdown flows, to withdraw water from a natural 
or other water source to support contact and/or noncontact cooling uses 
within a facility. The water is usually sent to a cooling canal or 
channel, lake, pond, or tower to allow waste heat to be dissipated to 
the atmosphere and then is returned to the system. (Some facilities 
divert the waste heat to other process operations.) New source water 
(make-up water) is added to the system to replenish losses that have 
occurred due to blowdown, drift, and evaporation.
    Cooling water means water used for contact or noncontact cooling, 
including water used for equipment cooling, evaporative cooling tower 
makeup, and dilution of effluent heat content. The intended use of the 
cooling water is to absorb waste heat rejected from the process or 
processes used, or from auxiliary operations on the facility's premises. 
Cooling water that is used in a manufacturing process either before or 
after it is used for cooling is considered process water for the 
purposes of calculating the percentage of a facility's intake flow that 
is used for cooling purposes in Sec. 125.91(a)(4).
    Cooling water intake structure means the total physical structure 
and any associated constructed waterways used to withdraw cooling water 
from waters of the U.S. The cooling water intake structure extends from 
the point at which water is withdrawn from the surface water source up 
to, and including, the intake pumps.
    Design and construction technology means any physical configuration 
of

[[Page 380]]

the cooling water intake structure, or a technology that is placed in 
the water body in front of the cooling water intake structure, to reduce 
impingement mortality and/or entrainment. Design and construction 
technologies include, but are not limited to, location of the intake 
structure, intake screen systems, passive intake systems, fish diversion 
and/or avoidance systems, and fish handling and return systems. 
Restoration measures are not design and construction technologies for 
purposes of this definition.
    Design intake flow means the value assigned (during the cooling 
water intake structure design) to the total volume of water withdrawn 
from a source waterbody over a specific time period.
    Design intake velocity means the value assigned (during the design 
of a cooling water intake structure) to the average speed at which 
intake water passes through the open area of the intake screen (or other 
device) against which organisms might be impinged or through which they 
might be entrained.
    Diel means daily and refers to variation in organism abundance and 
density over a 24-hour period due to the influence of water movement, 
physical or chemical changes, and changes in light intensity.
    Entrainment means the incorporation of any life stages of fish and 
shellfish with intake water flow entering and passing through a cooling 
water intake structure and into a cooling water system.
    Estuary means a semi-enclosed body of water that has a free 
connection with open seas and within which the seawater is measurably 
diluted with fresh water derived from land drainage. The salinity of an 
estuary exceeds 0.5 parts per thousand (by mass) but is typically less 
than 30 parts per thousand (by mass).
    Existing facility means any facility that commenced construction as 
described in 40 CFR 122.29(b)(4) on or before January 17, 2002 or July 
17, 2006 for an offshore oil and gas extraction facility); and any 
modification of, or any addition of a unit at such a facility that does 
not meet the definition of a new facility at Sec. 125.83.
    Freshwater river or stream means a lotic (free-flowing) system that 
does not receive significant inflows of water from oceans or bays due to 
tidal action. For the purposes of this rule, a flow-through reservoir 
with a retention time of 7 days or less will be considered a freshwater 
river or stream.
    Impingement means the entrapment of any life stages of fish and 
shellfish on the outer part of an intake structure or against a 
screening device during periods of intake water withdrawal.
    Lake or reservoir means any inland body of open water with some 
minimum surface area free of rooted vegetation and with an average 
hydraulic retention time of more than 7 days. Lakes or reservoirs might 
be natural water bodies or impounded streams, usually fresh, surrounded 
by land or by land and a man-made retainer (e.g., a dam). Lakes or 
reservoirs might be fed by rivers, streams, springs, and/or local 
precipitation.
    Moribund means dying; close to death.
    Natural thermal stratification means the naturally occurring and/or 
existing division of a waterbody into horizontal layers of differing 
densities as a result of variations in temperature at different depths.
    Ocean means marine open coastal waters with a salinity greater than 
or equal to 30 parts per thousand (by mass).
    Once-through cooling water system means a system designed to 
withdraw water from a natural or other water source, use it at the 
facility to support contact and/or noncontact cooling uses, and then 
discharge it to a waterbody without recirculation. Once-through cooling 
systems sometimes employ canals/channels, ponds, or non-recirculating 
cooling towers to dissipate waste heat from the water before it is 
discharged.
    Operational measure means a modification to any operation at a 
facility that serves to minimize impact to fish and shellfish from the 
cooling water intake structure. Examples of operational measures 
include, but are not limited to: reductions in cooling water intake flow 
through the use of variable

[[Page 381]]

speed pumps and seasonal flow reductions or shutdowns; and more frequent 
rotation of traveling screens.
    Phase II existing facility means any existing facility that meets 
the criteria specified in Sec. 125.91.
    Source water means the waters of the U.S. from which the cooling 
water is withdrawn.
    Supplier means an entity, other than the regulated facility, that 
owns and operates its own cooling water intake structure and directly 
withdraws water from waters of the United States. The supplier sells the 
cooling water to other facilities for their use, but may also use a 
portion of the water itself. An entity that provides potable water to 
residential populations (e.g., public water system) is not a supplier 
for purposes of this subpart.
    Thermocline means the middle layer of a thermally stratified lake or 
a reservoir. In this layer, there is a rapid change in temperatures 
between the top and bottom of the layer.
    Tidal river means the most seaward reach of a river or stream where 
the salinity is typically less than or equal to 0.5 parts per thousand 
(by mass) at a time of annual low flow and whose surface elevation 
responds to the effects of coastal lunar tides.

[44 FR 32948, June 7, 1979, as amended at 71 FR 35040, June 16, 2006]

    Effective Date Note: At 72 FR 37109, July 9, 2007, Sec. 125.93 was 
suspended.



Sec. 125.94  How will requirements reflecting best technology available for 

minimizing adverse environmental impact be established for my Phase II 

existing facility?

    (a) Compliance alternatives. You must select and implement one of 
the following five alternatives for establishing best technology 
available for minimizing adverse environmental impact at your facility:
    (1)(i)You may demonstrate to the Director that you have reduced, or 
will reduce, your flow commensurate with a closed-cycle recirculating 
system. In this case, you are deemed to have met the applicable 
performance standards and will not be required to demonstrate further 
that your facility meets the impingement mortality and entrainment 
performance standards specified in paragraph (b) of this section. In 
addition, you are not subject to the requirements in Sec. Sec. 125.95, 
125.96, 125.97, or 125.98. However, you may still be subject to any more 
stringent requirements established under paragraph (e) of this section; 
or
    (ii) You may demonstrate to the Director that you have reduced, or 
will reduce, your maximum through-screen design intake velocity to 0.5 
ft/s or less. In this case, you are deemed to have met the impingement 
mortality performance standards and will not be required to demonstrate 
further that your facility meets the performance standards for 
impingement mortality specified in paragraph (b) of this section and you 
are not subject to the requirements in Sec. Sec. 125.95, 125.96, 
125.97, or 125.98 as they apply to impingement mortality. However, you 
are still subject to any applicable requirements for entrainment 
reduction and may still be subject to any more stringent requirements 
established under paragraph (e) of this section.
    (2) You may demonstrate to the Director that your existing design 
and construction technologies, operational measures, and/or restoration 
measures meet the performance standards specified in paragraph (b) of 
this section and/or the restoration requirements in paragraph (c) of 
this section.
    (3) You may demonstrate to the Director that you have selected, and 
will install and properly operate and maintain, design and construction 
technologies, operational measures, and/or restoration measures that 
will, in combination with any existing design and construction 
technologies, operational measures, and/or restoration measures, meet 
the performance standards specified in paragraph (b) of this section 
and/or the restoration requirements in paragraph (c) of this section;
    (4) You may demonstrate to the Director that you have installed, or 
will install, and properly operate and maintain an approved design and 
construction technology in accordance with Sec. 125.99(a) or (b); or
    (5) You may demonstrate to the Director that you have selected, 
installed, and are properly operating and maintaining, or will install 
and properly operate and maintain design and

[[Page 382]]

construction technologies, operational measures, and/or restoration 
measures that the Director has determined to be the best technology 
available to minimize adverse environmental impact for your facility in 
accordance with paragraphs (a)(5)(i) or (ii) of this section.
    (i) If the Director determines that data specific to your facility 
demonstrate that the costs of compliance under alternatives in 
paragraphs (a)(2) through (4) of this section would be significantly 
greater than the costs considered by the Administrator for a facility 
like yours in establishing the applicable performance standards in 
paragraph (b) of this section, the Director must make a site-specific 
determination of the best technology available for minimizing adverse 
environmental impact. This determination must be based on reliable, 
scientifically valid cost and performance data submitted by you and any 
other information that the Director deems appropriate. The Director must 
establish site-specific alternative requirements based on new and/or 
existing design and construction technologies, operational measures, 
and/or restoration measures that achieve an efficacy that is, in the 
judgment of the Director, as close as practicable to the applicable 
performance standards in paragraph (b) of this section, without 
resulting in costs that are significantly greater than the costs 
considered by the Administrator for a facility like yours in 
establishing the applicable performance standards. The Director's site-
specific determination may conclude that design and construction 
technologies, operational measures, and/or restoration measures in 
addition to those already in place are not justified because of the 
significantly greater costs. To calculate the costs considered by the 
Administrator for a facility like yours in establishing the applicable 
performance standards you must:
    (A) Determine which technology the Administrator modeled as the most 
appropriate compliance technology for your facility;
    (B) Using the Administrator's costing equations, calculate the 
annualized capital and net operation and maintenance (O&M) costs for a 
facility with your design intake flow using this technology;
    (C) Determine the annualized net revenue loss associated with net 
construction downtime that the Administrator modeled for your facility 
to install this technology;
    (D) Determine the annualized pilot study costs that the 
Administrator modeled for your facility to test and optimize this 
technology;
    (E) Sum the cost items in paragraphs (a)(5)(i)(B), (C), and (D) of 
this section; and
    (F) Determine if the performance standards that form the basis of 
these estimates (i.e., impingement mortality reduction only or 
impingement mortality and entrainment reduction) are applicable to your 
facility, and if necessary, adjust the estimates to correspond to the 
applicable performance standards.
    (ii) If the Director determines that data specific to your facility 
demonstrate that the costs of compliance under alternatives in 
paragraphs (a)(2) through (4) of this section would be significantly 
greater than the benefits of complying with the applicable performance 
standards at your facility, the Director must make a site-specific 
determination of best technology available for minimizing adverse 
environmental impact. This determination must be based on reliable, 
scientifically valid cost and performance data submitted by you and any 
other information the Director deems appropriate. The Director must 
establish site-specific alternative requirements based on new and/or 
existing design and construction technologies, operational measures, 
and/or restoration measures that achieve an efficacy that, in the 
judgment of the Director, is as close as practicable to the applicable 
performance standards in paragraph (b) of this section without resulting 
in costs that are significantly greater than the benefits at your 
facility. The Director's site-specific determination may conclude that 
design and construction technologies, operational measures, and/or 
restoration measures in addition to those already in place are not 
justified because the costs would be significantly greater than the 
benefits at your facility.

[[Page 383]]

    (b) National performance standards.--(1) Impingement mortality 
performance standards. If you choose compliance alternatives in 
paragraphs (a)(2), (a)(3), or (a)(4) of this section, you must reduce 
impingement mortality for all life stages of fish and shellfish by 80 to 
95 percent from the calculation baseline.
    (2) Entrainment performance standards. If you choose compliance 
alternatives in paragraphs (a)(1)(ii), (a)(2), (a)(3), or (a)(4) of this 
section, you must also reduce entrainment of all life stages of fish and 
shellfish by 60 to 90 percent from the calculation baseline if:
    (i) Your facility has a capacity utilization rate of 15 percent or 
greater, and
    (ii)(A) Your facility uses cooling water withdrawn from a tidal 
river, estuary, ocean, or one of the Great Lakes; or
    (B) Your facility uses cooling water withdrawn from a freshwater 
river or stream and the design intake flow of your cooling water intake 
structures is greater than five percent of the mean annual flow.
    (3) Additional performance standards for facilities withdrawing from 
a lake (other than one of the Great Lakes) or a reservoir. If your 
facility withdraws cooling water from a lake (other than one of the 
Great Lakes) or a reservoir and you propose to increase the design 
intake flow of cooling water intake structures it uses, your increased 
design intake flow must not disrupt the natural thermal stratification 
or turnover pattern (where present) of the source water, except in cases 
where the disruption does not adversely affect the management of 
fisheries. In determining whether any such disruption does not adversely 
affect the management of fisheries, you must consult with Federal, 
State, or Tribal fish and wildlife management agencies).
    (4) Use of performance standards for site-specific determinations of 
best technology available. The performance standards in paragraphs 
(b)(1) through (3) of this section must also be used for determining 
eligibility for site-specific determinations of best technology 
available for minimizing adverse environmental impact and establishing 
site specific requirements that achieve an efficacy as close as 
practicable to the applicable performance standards without resulting in 
costs that are significantly greater than those considered by the 
Administrator for a facility like yours in establishing the performance 
standards or costs that are significantly greater than the benefits at 
your facility, pursuant to Sec. 125.94(a)(5).
    (c) Requirements for restoration measures. With the approval of the 
Director, you may implement and adaptively manage restoration measures 
that produce and result in increases of fish and shellfish in your 
facility's watershed in place of or as a supplement to installing design 
and control technologies and/or adopting operational measures that 
reduce impingement mortality and entrainment. You must demonstrate to 
the Director that:
    (1) You have evaluated the use of design and construction 
technologies and operational measures for your facility and determined 
that the use of restoration measures is appropriate because meeting the 
applicable performance standards or site-specific requirements through 
the use of design and construction technologies and/or operational 
measures alone is less feasible, less cost-effective, or less 
environmentally desirable than meeting the standards or requirements in 
whole or in part through the use of restoration measures; and
    (2) The restoration measures you will implement, alone or in 
combination with design and construction technologies and/or operational 
measures, will produce ecological benefits (fish and shellfish), 
including maintenance or protection of community structure and function 
in your facility's waterbody or watershed, at a level that is 
substantially similar to the level you would achieve by meeting the 
applicable performance standards under paragraph (b) of this section, or 
that satisfies alternative site-specific requirements established 
pursuant to paragraph (a)(5) of this section.
    (d)(1) Compliance using a technology installation and operation plan 
or restoration plan. If you choose one of the compliance alternatives in 
paragraphs (a)(2), (3), (4), or (5) of this section, you may request 
that compliance with the requirements of Sec. 125.94(b) during the 
first permit containing requirements

[[Page 384]]

consistent with this subpart be determined based on whether you have 
complied with the construction, operational, maintenance, monitoring, 
and adaptive management requirements of a Technology Installation and 
Operation Plan developed in accordance with Sec. 125.95(b)(4)(ii) (for 
any design and construction technologies and/or operational measures) 
and/or a Restoration Plan developed in accordance with Sec. 
125.95(b)(5) (for any restoration measures). The Technology Installation 
and Operation Plan must be designed to meet applicable performance 
standards in paragraph (b) of this section or alternative site-specific 
requirements developed pursuant to paragraph (a)(5) of this section. The 
Restoration Plan must be designed to achieve compliance with the 
applicable requirements in paragraph (c) of this section.
    (2) During subsequent permit terms, if you selected and installed 
design and construction technologies and/or operational measures and 
have been in compliance with the construction, operational, maintenance, 
monitoring, and adaptive management requirements of your Technology 
Installation and Operation Plan during the preceding permit term, you 
may request that compliance with the requirements of Sec. 125.94 during 
the following permit term be determined based on whether you remain in 
compliance with your Technology Installation and Operation Plan, revised 
in accordance with your adaptive management plan in Sec. 
125.95(b)(4)(ii)(C) if applicable performance standards are not being 
met. Each request and approval of a Technology Installation and 
Operation Plan shall be limited to one permit term.
    (3) During subsequent permit terms, if you selected and installed 
restoration measures and have been in compliance with the construction, 
operational, maintenance, monitoring, and adaptive management 
requirements in your Restoration Plan during the preceding permit term, 
you may request that compliance with the requirements of this section 
during the following permit term be determined based on whether you 
remain in compliance with your Restoration Plan, revised in accordance 
with your adaptive management plan in Sec. 125.95(b)(5)(v) if 
applicable performance standards are not being met. Each request and 
approval of a Restoration Plan shall be limited to one permit term.
    (e) More stringent standards. The Director may establish more 
stringent requirements as best technology available for minimizing 
adverse environmental impact if the Director determines that your 
compliance with the applicable requirements of this section would not 
meet the requirements of applicable State and Tribal law, or other 
Federal law.
    (f) Nuclear facilities. If you demonstrate to the Director based on 
consultation with the Nuclear Regulatory Commission that compliance with 
this subpart would result in a conflict with a safety requirement 
established by the Commission, the Director must make a site-specific 
determination of best technology available for minimizing adverse 
environmental impact that would not result in a conflict with the 
Nuclear Regulatory Commission's safety requirement.

    Effective Date Note: At 72 FR 37109, July 9, 2007, Sec. 125.94 was 
suspended.



Sec. 125.95  As an owner or operator of a Phase II existing facility, what 

must I collect and submit when I apply for my reissued NPDES permit?

    (a)(1) You must submit to the Director the Proposal for Information 
Collection required in paragraph (b)(1) of this section prior to the 
start of information collection activities;
    (2) You must submit to the Director the information required in 40 
CFR 122.21(r)(2), (r)(3) and (r)(5) and any applicable portions of the 
Comprehensive Demonstration Study (Study), except for the Proposal for 
Information Collection required by paragraph (b)(1) of this section; and
    (i) You must submit your NPDES permit application in accordance with 
the time frames specified in 40 CFR 122.21(d)(2).
    (ii) If your existing permit expires before July 9, 2008, you may 
request that the Director establish a schedule for you to submit the 
information required by this section as expeditiously as practicable, 
but not later than January 7, 2008. Between the time your existing 
permit expires and the time an

[[Page 385]]

NPDES permit containing requirements consistent with this subpart is 
issued to your facility, the best technology available to minimize 
adverse environmental impact will continue to be determined based on the 
Director's best professional judgment.
    (3) In subsequent permit terms, the Director may approve a request 
to reduce the information required to be submitted in your permit 
application on the cooling water intake structure(s) and the source 
waterbody, if conditions at your facility and in the waterbody remain 
substantially unchanged since your previous application. You must submit 
your request for reduced cooling water intake structure and waterbody 
application information to the Director at least one year prior to the 
expiration of the permit. Your request must identify each required 
information item in Sec. 122.21(r) and this section that you determine 
has not substantially changed since the previous permit application and 
the basis for your determination.
    (b) Comprehensive Demonstration Study. The purpose of the 
Comprehensive Demonstration Study (The Study) is to characterize 
impingement mortality and entrainment, to describe the operation of your 
cooling water intake structures, and to confirm that the technologies, 
operational measures, and/or restoration measures you have selected and 
installed, or will install, at your facility meet the applicable 
requirements of Sec. 125.94. All facilities except those that have met 
the applicable requirements in accordance with Sec. Sec. 
125.94(a)(1)(i), 125.94(a)(1)(ii), and 125.94(a)(4) must submit all 
applicable portions of the Comprehensive Demonstration Study to the 
Director in accordance with paragraph (a) of this section. Facilities 
that meet the requirements in Sec. 125.94(a)(1)(i) by reducing their 
flow commensurate with a closed-cycle, recirculating system are not 
required to submit a Comprehensive Demonstration Study. Facilities that 
meet the requirements in Sec. 125.94(a)(1)(ii) by reducing their design 
intake velocity to 0.5 ft/sec or less are required to submit a Study 
only for the entrainment requirements, if applicable. Facilities that 
meet the requirements in Sec. 125.94(a)(4) and have installed and 
properly operate and maintain an approved design and construction 
technology (in accordance with Sec. 125.99) are required to submit only 
the Technology Installation and Operation Plan in paragraph (b)(4) of 
this section and the Verification Monitoring Plan in paragraph (b)(7) of 
this section. Facilities that are required to meet only impingement 
mortality performance standards in Sec. 125.94(b)(1) are required to 
submit only a Study for the impingement mortality reduction 
requirements. The Comprehensive Demonstration Study must include:
    (1) Proposal For Information Collection. You must submit to the 
Director for review and comment a description of the information you 
will use to support your Study. The Proposal for Information must be 
submitted prior to the start of information collection activities, but 
you may initiate such activities prior to receiving comment from the 
Director. The proposal must include:
    (i) A description of the proposed and/or implemented technologies, 
operational measures, and/or restoration measures to be evaluated in the 
Study;
    (ii) A list and description of any historical studies characterizing 
impingement mortality and entrainment and/or the physical and biological 
conditions in the vicinity of the cooling water intake structures and 
their relevance to this proposed Study. If you propose to use existing 
data, you must demonstrate the extent to which the data are 
representative of current conditions and that the data were collected 
using appropriate quality assurance/quality control procedures;
    (iii) A summary of any past or ongoing consultations with 
appropriate Federal, State, and Tribal fish and wildlife agencies that 
are relevant to this Study and a copy of written comments received as a 
result of such consultations; and
    (iv) A sampling plan for any new field studies you propose to 
conduct in order to ensure that you have sufficient data to develop a 
scientifically valid estimate of impingement mortality and entrainment 
at your site. The sampling plan must document all methods and quality 
assurance/quality control procedures for sampling and data analysis.

[[Page 386]]

The sampling and data analysis methods you propose must be appropriate 
for a quantitative survey and include consideration of the methods used 
in other studies performed in the source waterbody. The sampling plan 
must include a description of the study area (including the area of 
influence of the cooling water intake structure(s)), and provide a 
taxonomic identification of the sampled or evaluated biological 
assemblages (including all life stages of fish and shellfish).
    (2) Source waterbody flow information. You must submit to the 
Director the following source waterbody flow information:
    (i) If your cooling water intake structure is located in a 
freshwater river or stream, you must provide the annual mean flow of the 
waterbody and any supporting documentation and engineering calculations 
to support your analysis of whether your design intake flow is greater 
than five percent of the mean annual flow of the river or stream for 
purposes of determining applicable performance standards under paragraph 
(b) of this section. Representative historical data (from a period of 
time up to 10 years, if available) must be used; and
    (ii) If your cooling water intake structure is located in a lake 
(other than one of the Great Lakes) or a reservoir and you propose to 
increase its design intake flow, you must provide a description of the 
thermal stratification in the waterbody, and any supporting 
documentation and engineering calculations to show that the total design 
intake flow after the increase will not disrupt the natural thermal 
stratification and turnover pattern in a way that adversely impacts 
fisheries, including the results of any consultations with Federal, 
State, or Tribal fish and wildlife management agencies.
    (3) Impingement Mortality and/or Entrainment Characterization Study. 
You must submit to the Director an Impingement Mortality and/or 
Entrainment Characterization Study whose purpose is to provide 
information to support the development of a calculation baseline for 
evaluating impingement mortality and entrainment and to characterize 
current impingement mortality and entrainment. The Impingement Mortality 
and/or Entrainment Characterization Study must include the following, in 
sufficient detail to support development of the other elements of the 
Comprehensive Demonstration Study:
    (i) Taxonomic identifications of all life stages of fish, shellfish, 
and any species protected under Federal, State, or Tribal Law (including 
threatened or endangered species) that are in the vicinity of the 
cooling water intake structure(s) and are susceptible to impingement and 
entrainment;
    (ii) A characterization of all life stages of fish, shellfish, and 
any species protected under Federal, State, or Tribal Law (including 
threatened or endangered species) identified pursuant to paragraph 
(b)(3)(i) of this section, including a description of the abundance and 
temporal and spatial characteristics in the vicinity of the cooling 
water intake structure(s), based on sufficient data to characterize 
annual, seasonal, and diel variations in impingement mortality and 
entrainment (e.g., related to climate and weather differences, spawning, 
feeding and water column migration). These may include historical data 
that are representative of the current operation of your facility and of 
biological conditions at the site;
    (iii) Documentation of the current impingement mortality and 
entrainment of all life stages of fish, shellfish, and any species 
protected under Federal, State, or Tribal Law (including threatened or 
endangered species) identified pursuant to paragraph (b)(3)(i) of this 
section and an estimate of impingement mortality and entrainment to be 
used as the calculation baseline. The documentation may include 
historical data that are representative of the current operation of your 
facility and of biological conditions at the site. Impingement mortality 
and entrainment samples to support the calculations required in 
paragraphs (b)(4)(i)(C) and (b)(5)(iii) of this section must be 
collected during periods of representative operational flows for the 
cooling water intake structure and the flows associated with the samples 
must be documented;

[[Page 387]]

    (4) Technology and compliance assessment information--(i) Design and 
Construction Technology Plan. If you choose to use design and 
construction technologies and/or operational measures, in whole or in 
part to meet the requirements of Sec. 125.94(a)(2) or (3), you must 
submit a Design and Construction Technology Plan to the Director for 
review and approval. In the plan, you must provide the capacity 
utilization rate for your facility (or for individual intake structures 
where applicable, in accordance with Sec. 125.93) and provide 
supporting data (including the average annual net generation of the 
facility (in MWh) measured over a five year period (if available) of 
representative operating conditions and the total net capacity of the 
facility (in MW)) and underlying calculations. The plan must explain the 
technologies and/or operational measures you have in place and/or have 
selected to meet the requirements in Sec. 125.94. (Examples of 
potentially appropriate technologies may include, but are not limited 
to, wedgewire screens, fine mesh screens, fish handling and return 
systems, barrier nets, aquatic filter barrier systems, vertical and/or 
lateral relocation of the cooling water intake structure, and 
enlargement of the cooling water intake structure opening to reduce 
velocity. Examples of potentially appropriate operational measures may 
include, but are not limited to, seasonal shutdowns, reductions in flow, 
and continuous or more frequent rotation of traveling screens.) The plan 
must contain the following information:
    (A) A narrative description of the design and operation of all 
design and construction technologies and/or operational measures 
(existing and proposed), including fish handling and return systems, 
that you have in place or will use to meet the requirements to reduce 
impingement mortality of those species expected to be most susceptible 
to impingement, and information that demonstrates the efficacy of the 
technologies and/or operational measures for those species;
    (B) A narrative description of the design and operation of all 
design and construction technologies and/or operational measures 
(existing and proposed) that you have in place or will use to meet the 
requirements to reduce entrainment of those species expected to be the 
most susceptible to entrainment, if applicable, and information that 
demonstrates the efficacy of the technologies and/or operational 
measures for those species;
    (C) Calculations of the reduction in impingement mortality and 
entrainment of all life stages of fish and shellfish that would be 
achieved by the technologies and/or operational measures you have 
selected based on the Impingement Mortality and/or Entrainment 
Characterization Study in paragraph (b)(3) of this section. In 
determining compliance with any requirements to reduce impingement 
mortality or entrainment, you must assess the total reduction in 
impingement mortality and entrainment against the calculation baseline 
determined in accordance with paragraph (b)(3) of this section. 
Reductions in impingement mortality and entrainment from this 
calculation baseline as a result of any design and construction 
technologies and/or operational measures already implemented at your 
facility should be added to the reductions expected to be achieved by 
any additional design and/or construction technologies and operational 
measures that will be implemented, and any increases in fish and 
shellfish within the waterbody attributable to your restoration 
measures. Facilities that recirculate a portion of their flow, but do 
not reduce flow sufficiently to satisfy the compliance option in Sec. 
125.94(a)(1)(i) may take into account the reduction in impingement 
mortality and entrainment associated with the reduction in flow when 
determining the net reduction associated with existing design and 
construction technologies and/or operational measures. This estimate 
must include a site-specific evaluation of the suitability of the 
technologies and/or operational measures based on the species that are 
found at the site, and may be determined based on representative studies 
(i.e., studies that have been conducted at a similar facility's cooling 
water intake structures located in the same waterbody type with similar 
biological characteristics) and/or site-specific technology prototype or 
pilot studies; and

[[Page 388]]

    (D) Design and engineering calculations, drawings, and estimates 
prepared by a qualified professional to support the descriptions 
required by paragraphs (b)(4)(i)(A) and (B) of this section.
    (ii) Technology Installation and Operation Plan. If you choose the 
compliance alternative in Sec. 125.94(a)(2), (3), (4), or (5) and use 
design and construction technologies and/or operational measures in 
whole or in part to comply with the applicable requirements of Sec. 
125.94, you must submit the following information with your application 
for review and approval by the Director:
    (A) A schedule for the installation and maintenance of any new 
design and construction technologies. Any downtime of generating units 
to accommodate installation and/or maintenance of these technologies 
should be scheduled to coincide with otherwise necessary downtime (e.g., 
for repair, overhaul, or routine maintenance of the generating units) to 
the extent practicable. Where additional downtime is required, you may 
coordinate scheduling of this downtime with the North American Electric 
Reliability Council and/or other generators in your area to ensure that 
impacts to reliability and supply are minimized;
    (B) List of operational and other parameters to be monitored, and 
the location and frequency that you will monitor them;
    (C) List of activities you will undertake to ensure to the degree 
practicable the efficacy of installed design and construction 
technologies and operational measures, and your schedule for 
implementing them;
    (D) A schedule and methodology for assessing the efficacy of any 
installed design and construction technologies and operational measures 
in meeting applicable performance standards or site-specific 
requirements, including an adaptive management plan for revising design 
and construction technologies, operational measures, operation and 
maintenance requirements, and/or monitoring requirements if your 
assessment indicates that applicable performance standards or site-
specific requirements are not being met; and
    (E) If you choose the compliance alternative in Sec. 125.94(a)(4), 
documentation that the appropriate site conditions in Sec. 125.99(a) or 
(b) exist at your facility.
    (5) Restoration Plan. If you propose to use restoration measures, in 
whole or in part, to meet the applicable requirements in Sec. 125.94, 
you must submit the following information with your application for 
review and approval by the Director. You must address species of concern 
identified in consultation with Federal, State, and Tribal fish and 
wildlife management agencies with responsibility for fisheries and 
wildlife potentially affected by your cooling water intake structure(s).
    (i) A demonstration to the Director that you have evaluated the use 
of design and construction technologies and/or operational measures for 
your facility and an explanation of how you determined that restoration 
would be more feasible, cost-effective, or environmentally desirable;
    (ii) A narrative description of the design and operation of all 
restoration measures (existing and proposed) that you have in place or 
will use to produce fish and shellfish;
    (iii) Quantification of the ecological benefits of the proposed 
restoration measures. You must use information from the Impingement 
Mortality and/or Entrainment Characterization Study required in 
paragraph (b)(3) of this section, and any other available and 
appropriate information, to estimate the reduction in fish and shellfish 
impingement mortality and/or entrainment that would be necessary for 
your facility to comply with Sec. 125.94(c)(2). You must then calculate 
the production of fish and shellfish that you will achieve with the 
restoration measures you will or have already installed. You must 
include a discussion of the nature and magnitude of uncertainty 
associated with the performance of these restoration measures. You must 
also include a discussion of the time frame within which these 
ecological benefits are expected to accrue;
    (iv) Design calculations, drawings, and estimates to document that 
your proposed restoration measures in combination with design and 
construction technologies and/or operational measures, or alone, will 
meet the requirements of Sec. 125.94(c)(2). If the restoration

[[Page 389]]

measures address the same fish and shellfish species identified in the 
Impingement Mortality and/or Entrainment Characterization Study (in-kind 
restoration), you must demonstrate that the restoration measures will 
produce a level of these fish and shellfish substantially similar to 
that which would result from meeting applicable performance standards in 
Sec. 125.94(b), or that they will satisfy site-specific requirements 
established pursuant to Sec. 125.94(a)(5). If the restoration measures 
address fish and shellfish species different from those identified in 
the Impingement Mortality and/or Entrainment Characterization Study 
(out-of-kind restoration), you must demonstrate that the restoration 
measures produce ecological benefits substantially similar to or greater 
than those that would be realized through in-kind restoration. Such a 
demonstration should be based on a watershed approach to restoration 
planning and consider applicable multi-agency watershed restoration 
plans, site-specific peer-reviewed ecological studies, and/or 
consultation with appropriate Federal, State, and Tribal fish and 
wildlife management agencies.
    (v) A plan utilizing an adaptive management method for implementing, 
maintaining, and demonstrating the efficacy of the restoration measures 
you have selected and for determining the extent to which the 
restoration measures, or the restoration measures in combination with 
design and construction technologies and operational measures, have met 
the applicable requirements of Sec. 125.94(c)(2). The plan must 
include:
    (A) A monitoring plan that includes a list of the restoration 
parameters that will be monitored, the frequency at which you will 
monitor them, and success criteria for each parameter;
    (B) A list of activities you will undertake to ensure the efficacy 
of the restoration measures, a description of the linkages between these 
activities and the items in paragraph (b)(5)(v)(A) of this section, and 
an implementation schedule; and
    (C) A process for revising the Restoration Plan as new information, 
including monitoring data, becomes available, if the applicable 
requirements under Sec. 125.94(c)(2) are not being met.
    (vi) A summary of any past or ongoing consultation with appropriate 
Federal, State, and Tribal fish and wildlife management agencies on your 
use of restoration measures including a copy of any written comments 
received as a result of such consultations;
    (vii) If requested by the Director, a peer review of the items you 
submit for the Restoration Plan. You must choose the peer reviewers in 
consultation with the Director who may consult with EPA and Federal, 
State, and Tribal fish and wildlife management agencies with 
responsibility for fish and wildlife potentially affected by your 
cooling water intake structure(s). Peer reviewers must have appropriate 
qualifications (e.g., in the fields of geology, engineering, and/or 
biology, etc.) depending upon the materials to be reviewed; and
    (viii) A description of the information to be included in a bi-
annual status report to the Director.
    (6) Information to support site-specific determination of best 
technology available for minimizing adverse environmental impact. If you 
have requested a site-specific determination of best technology 
available for minimizing adverse environmental impact pursuant to Sec. 
125.94(a)(5)(i) because of costs significantly greater than those 
considered by the Administrator for a facility like yours in 
establishing the applicable performance standards of Sec. 125.94(b), 
you are required to provide to the Director the information specified in 
paragraphs (b)(6)(i) and (b)(6)(iii) of this section. If you have 
requested a site-specific determination of best technology available for 
minimizing adverse environmental impact pursuant to Sec. 
125.94(a)(5)(ii) because of costs significantly greater than the 
benefits of meeting the applicable performance standards of Sec. 
125.94(b) at your facility, you must provide the information specified 
in paragraphs (b)(6)(i), (b)(6)(ii), and (b)(6)(iii) of this section:
    (i) Comprehensive Cost Evaluation Study. You must perform and submit 
the results of a Comprehensive Cost Evaluation Study, that includes:

[[Page 390]]

    (A) Engineering cost estimates in sufficient detail to document the 
costs of implementing design and construction technologies, operational 
measures, and/or restoration measures at your facility that would be 
needed to meet the applicable performance standards of Sec. 125.94(b);
    (B) A demonstration that the costs documented in paragraph 
(b)(6)(i)(A) of this section significantly exceed either those 
considered by the Administrator for a facility like yours in 
establishing the applicable performance standards or the benefits of 
meeting the applicable performance standards at your facility; and
    (C) Engineering cost estimates in sufficient detail to document the 
costs of implementing the design and construction technologies, 
operational measures, and/or restoration measures in your Site-Specific 
Technology Plan developed in accordance with paragraph (b)(6)(iii) of 
this section.
    (ii) Benefits Valuation Study. If you are seeking a site-specific 
determination of best technology available for minimizing adverse 
environmental impact because of costs significantly greater than the 
benefits of meeting the applicable performance standards of Sec. 
125.94(b) at your facility, you must use a comprehensive methodology to 
fully value the impacts of impingement mortality and entrainment at your 
site and the benefits achievable by meeting the applicable performance 
standards. In addition to the valuation estimates, the benefit study 
must include the following:
    (A) A description of the methodology(ies) used to value commercial, 
recreational, and ecological benefits (including any non-use benefits, 
if applicable);
    (B) Documentation of the basis for any assumptions and quantitative 
estimates. If you plan to use an entrainment survival rate other than 
zero, you must submit a determination of entrainment survival at your 
facility based on a study approved by the Director;
    (C) An analysis of the effects of significant sources of uncertainty 
on the results of the study; and
    (D) If requested by the Director, a peer review of the items you 
submit in the Benefits Valuation Study. You must choose the peer 
reviewers in consultation with the Director who may consult with EPA and 
Federal, State, and Tribal fish and wildlife management agencies with 
responsibility for fish and wildlife potentially affected by your 
cooling water intake structure. Peer reviewers must have appropriate 
qualifications depending upon the materials to be reviewed.
    (E) A narrative description of any non-monetized benefits that would 
be realized at your site if you were to meet the applicable performance 
standards and a qualitative assessment of their magnitude and 
significance.
    (iii) Site-Specific Technology Plan. Based on the results of the 
Comprehensive Cost Evaluation Study required by paragraph (b)(6)(i) of 
this section, and the Benefits Valuation Study required by paragraph 
(b)(6)(ii) of this section, if applicable, you must submit a Site-
Specific Technology Plan to the Director for review and approval. The 
plan must contain the following information:
    (A) A narrative description of the design and operation of all 
existing and proposed design and construction technologies, operational 
measures, and/or restoration measures that you have selected in 
accordance with Sec. 125.94(a)(5);
    (B) An engineering estimate of the efficacy of the proposed and/or 
implemented design and construction technologies or operational 
measures, and/or restoration measures. This estimate must include a 
site-specific evaluation of the suitability of the technologies or 
operational measures for reducing impingement mortality and/or 
entrainment (as applicable) of all life stages of fish and shellfish 
based on representative studies (e.g., studies that have been conducted 
at cooling water intake structures located in the same waterbody type 
with similar biological characteristics) and, if applicable, site-
specific technology prototype or pilot studies. If restoration measures 
will be used, you must provide a Restoration Plan that includes the 
elements described in paragraph (b)(5) of this section.
    (C) A demonstration that the proposed and/or implemented design and 
construction technologies, operational

[[Page 391]]

measures, and/or restoration measures achieve an efficacy that is as 
close as practicable to the applicable performance standards of Sec. 
125.94(b) without resulting in costs significantly greater than either 
the costs considered by the Administrator for a facility like yours in 
establishing the applicable performance standards, or as appropriate, 
the benefits of complying with the applicable performance standards at 
your facility;
    (D) Design and engineering calculations, drawings, and estimates 
prepared by a qualified professional to support the elements of the 
Plan.
    (7) Verification Monitoring Plan. If you comply using compliance 
alternatives in Sec. 125.94(a)(2), (3), (4), or (5) using design and 
construction technologies and/or operational measures, you must submit a 
plan to conduct, at a minimum, two years of monitoring to verify the 
full-scale performance of the proposed or already implemented 
technologies and/or operational measures. The verification study must 
begin once the design and construction technologies and/or operational 
measures are installed and continue for a period of time that is 
sufficient to demonstrate to the Director whether the facility is 
meeting the applicable performance standards in Sec. 125.94(b) or site-
specific requirements developed pursuant to Sec. 125.94(a)(5). The plan 
must provide the following:
    (i) Description of the frequency and duration of monitoring, the 
parameters to be monitored, and the basis for determining the parameters 
and the frequency and duration for monitoring. The parameters selected 
and duration and frequency of monitoring must be consistent with any 
methodology for assessing success in meeting applicable performance 
standards in your Technology Installation and Operation Plan as required 
by paragraph (b)(4)(ii) of this section.
    (ii) A proposal on how naturally moribund fish and shellfish that 
enter the cooling water intake structure would be identified and taken 
into account in assessing success in meeting the performance standards 
in Sec. 125.94(b).
    (iii) A description of the information to be included in a bi-annual 
status report to the Director.

[69 FR 41683, July 9, 2004, as amended at 69 FR 47210, Aug. 4, 2004]

    Effective Date Note: At 72 FR 37109, July 9, 2007, Sec. 125.95 was 
suspended.



Sec. 125.96  As an owner or operator of a Phase II existing facility, what 

monitoring must I perform?

    As an owner or operator of a Phase II existing facility, you must 
perform monitoring, as applicable, in accordance with the Technology 
Installation and Operation Plan required by Sec. 125.95(b)(4)(ii), the 
Restoration Plan required by Sec. 125.95(b)(5), the Verification 
Monitoring Plan required by Sec. 125.95(b)(7), and any additional 
monitoring specified by the Director to demonstrate compliance with the 
applicable requirements of Sec. 125.94.

    Effective Date Note: At 72 FR 37109, July 9, 2007, Sec. 125.96 was 
suspended.



Sec. 125.97  As an owner or operator of a Phase II existing facility, what 

records must I keep and what information must I report?

    As an owner or operator of a Phase II existing facility you are 
required to keep records and report information and data to the Director 
as follows:
    (a) You must keep records of all the data used to complete the 
permit application and show compliance with the requirements of Sec. 
125.94, any supplemental information developed under Sec. 125.95, and 
any compliance monitoring data submitted under Sec. 125.96, for a 
period of at least three (3) years from date of permit issuance. The 
Director may require that these records be kept for a longer period.
    (b) You must submit a status report to the Director for review every 
two years that includes appropriate monitoring data and other 
information as specified by the Director in accordance with Sec. 
125.98(b)(5).

    Effective Date Note: At 72 FR 37109, July 9, 2007, Sec. 125.97 was 
suspended.

[[Page 392]]



Sec. 125.98  As the Director, what must I do to comply with the requirements 

of this subpart?

    (a) Permit application. As the Director, you must review materials 
submitted by the applicant under 40 CFR 122.21(r) and Sec. 125.95 
before each permit renewal or reissuance.
    (1) You must review and comment on the Proposal for Information 
Collection submitted by the facility in accordance with Sec. 
125.95(a)(1). You are encouraged to provide comments expeditiously so 
that the permit applicant can make responsive modifications to its 
information gathering activities. If a facility submits a request in 
accordance with Sec. 125.95(a)(2)(ii) for an alternate schedule for 
submitting the information required in Sec. 125.95, you must approve a 
schedule that is as expeditious as practicable, but does not extend 
beyond January 7, 2008. If a facility submits a request in accordance 
with Sec. 125.95(a)(3) to reduce the information about their cooling 
water intake structures and the source waterbody required to be 
submitted in their permit application (other than with the first permit 
application after September 7, 2004), you must approve the request 
within 60 days if conditions at the facility and in the waterbody remain 
substantially unchanged since the previous application.
    (2) After receiving the permit application from the owner or 
operator of a Phase II existing facility, you must determine which of 
the requirements specified in Sec. 125.94 apply to the facility. In 
addition, you must review materials to determine compliance with the 
applicable requirements.
    (3) At each permit renewal, you must review the application 
materials and monitoring data to determine whether new or revised 
requirements for design and construction technologies, operational 
measures, or restoration measures should be included in the permit to 
meet the applicable performance standards in Sec. 125.94(b) or 
alternative site-specific requirements established pursuant to Sec. 
125.94(a)(5).
    (b) Permitting requirements. Section 316(b) requirements are 
implemented for a facility through an NPDES permit. As the Director, you 
must consider the information submitted by the Phase II existing 
facility in its permit application, and determine the appropriate 
requirements and conditions to include in the permit based on the 
compliance alternatives in Sec. 125.94(a). The following requirements 
must be included in each permit:
    (1) Cooling water intake structure requirements. The permit 
conditions must include the requirements that implement the applicable 
provisions of Sec. 125.94. You must evaluate the performance of the 
design and construction technologies, operational measures, and/or 
restoration measures proposed and implemented by the facility and 
require additional or different design and construction technologies, 
operational measure, and/or restoration measures, and/or improved 
operation and maintenance of existing technologies and measures, if 
needed to meet the applicable performance standards, restoration 
requirements, or alternative site-specific requirements. In determining 
compliance with the performance standards for facilities proposing to 
increase withdrawals of cooling water from a lake (other than a Great 
Lake) or a reservoir in Sec. 125.94(b)(3), you must consider 
anthropogenic factors (those not considered ``natural'') unrelated to 
the Phase II existing facility's cooling water intake structures that 
can influence the occurrence and location of a thermocline. These 
include source water inflows, other water withdrawals, managed water 
uses, wastewater discharges, and flow/level management practices (e.g., 
some reservoirs release water from deeper bottom layers). As the 
Director, you must coordinate with appropriate Federal, State, or Tribal 
fish and wildlife management agencies to determine if any disruption of 
the natural thermal stratification resulting from the proposed increased 
withdrawal of cooling water does not adversely affect the management of 
fisheries. Specifically:
    (i) You must review and approve the Design and Construction 
Technology Plan required in Sec. 125.95(b)(4) to evaluate the 
suitability and feasibility of the design and construction technology 
and/or operational measures proposed to meet the performance standards 
in Sec. 125.94(b) or site-specific requirements developed pursuant to 
Sec. 125.94(a)(5).

[[Page 393]]

    (ii) If the facility proposes restoration measures in accordance 
with Sec. 125.94(c), you must review and approve the Restoration Plan 
required under Sec. 125.95(b)(5) to determine whether the proposed 
measures, alone or in combination with design and construction 
technologies and/or operational measures, will meet the requirements 
under Sec. 125.94(c).
    (iii) In each reissued permit, you must include a condition in the 
permit requiring the facility to reduce impingement mortality and 
entrainment (or to increase fish production, if applicable) commensurate 
with the efficacy at the facility of the installed design and 
construction technologies, operational measures, and/or restoration 
measures.
    (iv) If the facility implements design and construction technologies 
and/or operational measures and requests that compliance with the 
requirements in Sec. 125.94 be measured for the first permit term (or 
subsequent permit terms, if applicable) employing the Technology 
Installation and Operation Plan in accordance with Sec. 
125.95(b)(4)(ii), you must review the Technology Installation and 
Operation Plan to ensure it meets the requirements of Sec. 
125.95(b)(4)(ii). If the Technology Installation and Operation Plan 
meets the requirements of Sec. 125.95(b)(4)(ii), you must approve the 
Technology Installation and Operation Plan and require the facility to 
meet the terms of the plan including any revision to the plan that may 
be necessary if applicable performance standards or alternative site-
specific requirements are not being met. If the facility implements 
restoration measures and requests that compliance with the requirements 
in Sec. 125.94 be measured for the first permit term (or subsequent 
permit terms, if applicable) employing a Restoration Plan in accordance 
with Sec. 125.95(b)(5), you must review the Restoration Plan to ensure 
it meets the requirements of Sec. 125.95(b)(5). If the Restoration Plan 
meets the requirements of Sec. 125.95(b)(5), you must approve the plan 
and require the facility to meet the terms of the plan including any 
revision to the plan that may be necessary if applicable performance 
standards or site-specific requirements are not being met. In 
determining whether to approve a Technology Installation and Operation 
Plan or Restoration Plan, you must evaluate whether the design and 
construction technologies, operational measures, and/or restoration 
measures the facility has installed, or proposes to install, can 
reasonably be expected to meet the applicable performance standards in 
Sec. 125.94(b), restoration requirements in Sec. 125.94(c)(2), and/or 
alternative site-specific requirements established pursuant to Sec. 
125.94(a)(5), and whether the Technology Installation and Operation Plan 
and/or Restoration Plan complies with the applicable requirements of 
Sec. 125.95(b). In reviewing the Technology Installation and Operation 
Plan, you must approve any reasonable scheduling provisions that are 
designed to ensure that impacts to energy reliability and supply are 
minimized, in accordance with Sec. 125.95(b)(4)(ii)(A). If the facility 
does not request that compliance with the requirements in Sec. 125.94 
be measured employing a Technology Installation and Operation Plan and/
or Restoration Plan, or the facility has not been in compliance with the 
terms of its current Technology Installation and Operation Plan and/or 
Restoration Plan during the preceding permit term, you must require the 
facility to comply with the applicable performance standards in Sec. 
125.94(b), restoration requirement in Sec. 125.94(c)(2), and/or 
alternative site-specific requirements developed pursuant to Sec. 
125.94(a)(5). In considering a permit application, you must review the 
performance of the design and construction technologies, operational 
measures, and/or restoration measures implemented and require additional 
or different design and construction technologies, operational measures, 
and/or restoration measures, and/or improved operation and maintenance 
of existing technologies and measures, if needed to meet the applicable 
performance standards, restoration requirements, and/or alternative 
site-specific requirements.
    (v) You must review and approve the proposed Verification Monitoring 
Plan submitted under Sec. 125.95(b)(7) (for design and construction 
technologies) and/or monitoring provisions of the Restoration Plan 
submitted under

[[Page 394]]

Sec. 125.95(b)(5)(v) and require that the monitoring continue for a 
sufficient period of time to demonstrate whether the design and 
construction technology, operational measures, and/or restoration 
measures meet the applicable performance standards in Sec. 125.94(b), 
restoration requirements in 125.94(c)(2) and/or site-specific 
requirements established pursuant to Sec. 125.94(a)(5).
    (vi) If a facility requests requirements based on a site-specific 
determination of best technology available for minimizing adverse 
environmental impact, you must review the application materials 
submitted under Sec. 125.95(b)(6) and any other information you may 
have, including quantitative and qualitative benefits, that would be 
relevant to a determination of whether alternative requirements are 
appropriate for the facility. If a facility submits a study to support 
entrainment survival at the facility, you must review and approve the 
results of that study. If you determine that alternative requirements 
are appropriate, you must make a site-specific determination of best 
technology available for minimizing adverse environmental impact in 
accordance with Sec. 125.94(a)(5). You, as the Director, may request 
revisions to the information submitted by the facility in accordance 
with Sec. 125.95(b)(6) if it does not provide an adequate basis for you 
to make this determination. Any alternative site-specific requirements 
established based on new and/or existing design and construction 
technologies, operational measures, and/or restoration measures, must 
achieve an efficacy that is, in your judgement, as close as practicable 
to the applicable performance standards of Sec. 125.94(b) without 
resulting in costs that are significantly greater than the costs 
considered by the Administrator for a like facility in establishing the 
applicable performance standards in Sec. 125.94(b), determined in 
accordance with Sec. 125.94(a)(5)(i)(A) through (F), or the benefits of 
complying with the applicable performance standards at the facility; and
    (vii) You must review the proposed methods for assessing success in 
meeting applicable performance standards and/or restoration requirements 
submitted by the facility under Sec. 125.95(b)(4)(ii)(D) and/or 
(b)(5)(v)(A), evaluate those and other available methods, and specify 
how assessment of success in meeting the performance standards and/or 
restoration requirements must be determined including the averaging 
period for determining the percent reduction in impingement mortality 
and entrainment and/or the production of fish and shellfish. Compliance 
for facilities who request that compliance be measured employing a 
Technology Installation and Operation Plan and/or Restoration Plan must 
be determined in accordance with Sec. 125.98(b)(1)(iv).
    (2) Monitoring conditions. You must require the facility to perform 
monitoring in accordance with the Technology Installation and Operation 
Plan in Sec. 125.95(b)(4)(ii), the Restoration Plan required by Sec. 
125.95(b)(5), if applicable, and the Verification Monitoring Plan 
required by Sec. 125.95(b)(7). In determining any additional applicable 
monitoring requirements in accordance with Sec. 125.96, you must 
consider the monitoring facility's Verification Monitoring, Technology 
Installation and Operation, and/or Restoration Plans, as appropriate. 
You may modify the monitoring program based on changes in physical or 
biological conditions in the vicinity of the cooling water intake 
structure.
    (3) Recordkeeping and reporting. At a minimum, the permit must 
require the facility to report and keep records specified in Sec. 
125.97.
    (4) Design and construction technology approval--(i) For a facility 
that chooses to demonstrate that it has installed and properly operate 
and maintain a design and construction technology approved in accordance 
with Sec. 125.99, the Director must review and approve the information 
submitted in the Technology Installation and Operation Plan in Sec. 
125.95(b)(4)(ii) and determine if it meets the criteria in Sec. 125.99.
    (ii) If a person requests approval of a technology under Sec. 
125.99(b), the Director must review and approve the information 
submitted and determine its suitability for widespread use at facilities 
with similar site conditions in its jurisdiction with minimal study. As 
the Director, you must evaluate the

[[Page 395]]

adequacy of the technology when installed in accordance with the 
required design criteria and site conditions to consistently meet the 
performance standards in Sec. 125.94. You, as the Director, may only 
approve a technology following public notice and consideration of 
comment regarding such approval.
    (5) Bi-annual status report. You must specify monitoring data and 
other information to be included in a status report every two years. The 
other information may include operation and maintenance records, 
summaries of adaptive management activities, or any other information 
that is relevant to determining compliance with the terms of the 
facility's Technology Operation and Installation Plan and/or Restoration 
Plan.

    Effective Date Note: At 72 FR 37109, July 9, 2007, Sec. 125.98 was 
suspended.



Sec. 125.99  What are approved design and construction technologies?

    (a) The following technologies constitute approved design and 
construction technologies for purposes of Sec. 125.94(a)(4):
    (1) Submerged cylindrical wedge-wire screen technology, if you meet 
the following conditions:
    (i) Your cooling water intake structure is located in a freshwater 
river or stream;
    (ii) Your cooling water intake structure is situated such that 
sufficient ambient counter currents exist to promote cleaning of the 
screen face;
    (iii)Your maximum through-screen design intake velocity is 0.5 ft/s 
or less;
    (iv) The slot size is appropriate for the size of eggs, larvae, and 
juveniles of all fish and shellfish to be protected at the site; and
    (v) Your entire main condenser cooling water flow is directed 
through the technology. Small flows totaling less than 2 MGD for 
auxiliary plant cooling uses are excluded from this provision.
    (2) A technology that has been approved in accordance with the 
process described in paragraph (b) of this section.
    (b) You or any other interested person may submit a request to the 
Director that a technology be approved in accordance with the compliance 
alternative in Sec. 125.94(a)(4) after providing the public with notice 
and an opportunity to comment on the request for approval of the 
technology. If the Director approves the technology, it may be used by 
all facilities with similar site conditions under the Director's 
jurisdiction. Requests for approval of a technology must be submitted to 
the Director and include the following information:
    (1) A detailed description of the technology;
    (2) A list of design criteria for the technology and site 
characteristics and conditions that each facility must have in order to 
ensure that the technology can consistently meet the appropriate 
impingement mortality and entrainment performance standards in Sec. 
125.94(b); and
    (3) Information and data sufficient to demonstrate that facilities 
under the jurisdiction of the Director can meet the applicable 
impingement mortality and entrainment performance standards in Sec. 
125.94(b) if the applicable design criteria and site characteristics and 
conditions are present at the facility.

    Effective Date Note: At 72 FR 37109, July 9, 2007, Sec. 125.99 was 
suspended.

Subpart K [Reserved]

Subpart L--Criteria and Standards for Imposing Conditions for the Disposal 
of Sewage Sludge Under Section 405 of the Act [Reserved]



                   Subpart M_Ocean Discharge Criteria

    Source: 45 FR 65953, Oct. 3, 1980, unless otherwise noted.



Sec. 125.120  Scope and purpose.

    This subpart establishes guidelines for issuance of National 
Pollutant Discharge Elimination System (NPDES) permits for the discharge 
of pollutants from a point source into the territorial seas, the 
contiguous zone, and the oceans.

[[Page 396]]



Sec. 125.121  Definitions.

    (a) Irreparable harm means significant undesirable effects occurring 
after the date of permit issuance which will not be reversed after 
cessation or modification of the discharge.
    (b) Marine environment means that territorial seas, the contiguous 
zone and the oceans.
    (c) Mixing zone means the zone extending from the sea's surface to 
seabed and extending laterally to a distance of 100 meters in all 
directions from the discharge point(s) or to the boundary of the zone of 
initial dilution as calculated by a plume model approved by the 
director, whichever is greater, unless the director determines that the 
more restrictive mixing zone or another definition of the mixing zone is 
more appropriate for a specific discharge.
    (d) No reasonable alternatives means:
    (1) No land-based disposal sites, discharge point(s) within internal 
waters, or approved ocean dumping sites within a reasonable distance of 
the site of the proposed discharge the use of which would not cause 
unwarranted economic impacts on the discharger, or, notwithstanding the 
availability of such sites,
    (2) On-site disposal is environmentally preferable to other 
alternative means of disposal after consideration of:
    (i) The relative environmental harm of disposal on-site, in disposal 
sites located on land, from discharge point(s) within internal waters, 
or in approved ocean dumping sites, and
    (ii) The risk to the environment and human safety posed by the 
transportation of the pollutants.
    (e) Unreasonable degradation of the marine environment means: (1) 
Significant adverse changes in ecosystem diversity, productivity and 
stability of the biological community within the area of discharge and 
surrounding biological communities,
    (2) Threat to human health through direct exposure to pollutants or 
through consumption of exposed aquatic organisms, or
    (3) Loss of esthetic, recreational, scientific or economic values 
which is unreasonable in relation to the benefit derived from the 
discharge.



Sec. 125.122  Determination of unreasonable degradation of the marine 

environment.

    (a) The director shall determine whether a discharge will cause 
unreasonable degradation of the marine environment based on 
consideration of:
    (1) The quantities, composition and potential for bioaccumulation or 
persistence of the pollutants to be discharged;
    (2) The potential transport of such pollutants by biological, 
physical or chemical processes;
    (3) The composition and vulnerability of the biological communities 
which may be exposed to such pollutants, including the presence of 
unique species or communities of species, the presence of species 
identified as endangered or threatened pursuant to the Endangered 
Species Act, or the presence of those species critical to the structure 
or function of the ecosystem, such as those important for the food 
chain;
    (4) The importance of the receiving water area to the surrounding 
biological community, including the presence of spawning sites, nursery/
forage areas, migratory pathways, or areas necessary for other functions 
or critical stages in the life cycle of an organism.
    (5) The existence of special aquatic sites including, but not 
limited to marine sanctuaries and refuges, parks, national and historic 
monuments, national seashores, wilderness areas and coral reefs;
    (6) The potential impacts on human health through direct and 
indirect pathways;
    (7) Existing or potential recreational and commercial fishing, 
including finfishing and shellfishing;
    (8) Any applicable requirements of an approved Coastal Zone 
Management plan;
    (9) Such other factors relating to the effects of the discharge as 
may be appropriate;
    (10) Marine water quality criteria developed pursuant to section 
304(a)(1).
    (b) Discharges in compliance with section 301(g), 301(h), or 316(a) 
variance requirements or State water quality standards shall be presumed 
not to cause unreasonable degradation of the marine environment, for any 
specific

[[Page 397]]

pollutants or conditions specified in the variance or the standard.



Sec. 125.123  Permit requirements.

    (a) If the director on the basis of available information including 
that supplied by the applicant pursuant to Sec. 125.124 determines 
prior to permit issuance that the discharge will not cause unreasonable 
degradation of the marine environment after application of any necessary 
conditions specified in Sec. 125.123(d), he may issue an NPDES permit 
containing such conditions.
    (b) If the director, on the basis of available information including 
that supplied by the applicant pursuant to Sec. 125.124 determines 
prior to permit issuance that the discharge will cause unreasonable 
degradation of the marine environment after application of all possible 
permit conditions specified in Sec. 125.123(d), he may not issue an 
NPDES permit which authorizes the discharge of pollutants.
    (c) If the director has insufficient information to determine prior 
to permit issuance that there will be no unreasonable degradation of the 
marine environment pursuant to Sec. 125.122, there shall be no 
discharge of pollutants into the marine environment unless the director 
on the basis of available information, including that supplied by the 
applicant pursuant to Sec. 125.124 determines that:
    (1) Such discharge will not cause irreparable harm to the marine 
environment during the period in which monitoring is undertaken, and
    (2) There are no reasonable alternatives to the on-site disposal of 
these materials, and
    (3) The discharge will be in compliance with all permit conditions 
established pursuant to paragraph (d) of this section.
    (d) All permits which authorize the discharge of pollutants pursuant 
to paragraph (c) of this section shall:
    (1) Require that a discharge of pollutants will: (i) Following 
dilution as measured at the boundary of the mixing zone not exceed the 
limiting permissible concentration for the liquid and suspended 
particulate phases of the waste material as described in Sec. 227.27(a) 
(2) and (3), Sec. 227.27(b), and Sec. 227.27(c) of the Ocean Dumping 
Criteria; and (ii) not exceed the limiting permissible concentration for 
the solid phase of the waste material or cause an accumulation of toxic 
materials in the human food chain as described in Sec. 227.27 (b) and 
(d) of the Ocean Dumping Criteria;
    (2) Specify a monitoring program, which is sufficient to assess the 
impact of the discharge on water, sediment, and biological quality 
including, where appropriate, analysis of the bioaccumulative and/or 
persistent impact on aquatic life of the discharge;
    (3) Contain any other conditions, such as performance of liquid or 
suspended particulate phase bioaccumulation tests, seasonal restrictions 
on discharge, process modifications, dispersion of pollutants, or 
schedule of compliance for existing discharges, which are determined to 
be necessary because of local environmental conditions, and
    (4) Contain the following clause: In addition to any other grounds 
specified herein, this permit shall be modified or revoked at any time 
if, on the basis of any new data, the director determines that continued 
discharges may cause unreasonable degradation of the marine environment.



Sec. 125.124  Information required to be submitted by applicant.

    The applicant is responsible for providing information which the 
director may request to make the determination required by this subpart. 
The director may require the following information as well as any other 
pertinent information:
    (a) An analysis of the chemical constituents of any discharge;
    (b) Appropriate bioassays necessary to determine the limiting 
permissible concentrations for the discharge;
    (c) An analysis of initial dilution;
    (d) Available process modifications which will reduce the quantities 
of pollutants which will be discharged;
    (e) Analysis of the location where pollutants are sought to be 
discharged, including the biological community and the physical 
description of the discharge facility;
    (f) Evaluation of available alternatives to the discharge of the 
pollutants including an evaluation of the possibility of land-based 
disposal or

[[Page 398]]

disposal in an approved ocean dumping site.



Subpart N_Requirements Applicable to Cooling Water Intake Structures for 

 New Offshore Oil and Gas Extraction Facilities Under Section 316(b) of 

                                 the Act

    Source: 71 FR 35040, June 16, 2006, unless otherwise noted.



Sec. 125.130  What are the purpose and scope of this subpart?

    (a) This subpart establishes requirements that apply to the 
location, design, construction, and capacity of cooling water intake 
structures at new offshore oil and gas extraction facilities. The 
purpose of these requirements is to establish the best technology 
available for minimizing adverse environmental impact associated with 
the use of cooling water intake structures at these facilities. These 
requirements are implemented through National Pollutant Discharge 
Elimination System (NPDES) permits issued under section 402 of the Clean 
Water Act (CWA).
    (b) This subpart implements section 316(b) of the CWA for new 
offshore oil and gas extraction facilities. Section 316(b) of the CWA 
provides that any standard established pursuant to sections 301 or 306 
of the CWA and applicable to a point source shall require that the 
location, design, construction, and capacity of cooling water intake 
structures reflect the best technology available for minimizing adverse 
environmental impact.
    (c) New offshore oil and gas extraction facilities that do not meet 
the threshold requirements regarding amount of water withdrawn or 
percentage of water withdrawn for cooling water purposes in Sec. 
125.131(a) must meet requirements determined by the Director on a case-
by-case, best professional judgement (BPJ) basis.
    (d) Nothing in this subpart shall be construed to preclude or deny 
the right of any State or political subdivision of a State or any 
interstate agency under section 510 of the CWA to adopt or enforce any 
requirement with respect to control or abatement of pollution that is 
more stringent than those required by Federal law.



Sec. 125.131  Who is subject to this subpart?

    (a) This subpart applies to a new offshore oil and gas extraction 
facility if it meets all of the following criteria:
    (1) It is a point source that uses or proposes to use a cooling 
water intake structure;
    (2) It has at least one cooling water intake structure that uses at 
least 25 percent of the water it withdraws for cooling purposes as 
specified in paragraph (c) of this section; and
    (3) It has a design intake flow greater than two (2) million gallons 
per day (MGD).
    (b) Use of a cooling water intake structure includes obtaining 
cooling water by any sort of contract or arrangement with an independent 
supplier (or multiple suppliers) of cooling water if the supplier or 
suppliers withdraw(s) water from waters of the United States. Use of 
cooling water does not include obtaining cooling water from a public 
water system or the use of treated effluent that otherwise would be 
discharged to a water of the U.S.
    (c) The threshold requirement that at least 25 percent of water 
withdrawn be used for cooling purposes must be measured on an average 
monthly basis. A new offshore oil and gas extraction facility meets the 
25 percent cooling water threshold if, based on the new facility's 
design, any monthly average over a year for the percentage of cooling 
water withdrawn is expected to equal or exceed 25 percent of the total 
water withdrawn.
    (d) Neither this subpart nor Subpart I of this part applies to 
seafood processing vessels or offshore liquefied natural gas import 
terminals that are new facilities as defined in 40 CFR 125.83. Seafood 
processing vessels and offshore liquefied natural gas import terminals 
must meet requirements established by the Director on a case-by-case, 
best professional judgment (BPJ) basis.

[[Page 399]]



Sec. 125.132  When must I comply with this subpart?

    You must comply with this subpart when an NPDES permit containing 
requirements consistent with this subpart is issued to you.



Sec. 125.133  What special definitions apply to this subpart?

    In addition to the definitions set forth at 40 CFR 125.83, the 
following special definitions apply to this subpart:
    Cooling water means water used for contact or noncontact cooling, 
including water used for equipment cooling, evaporative cooling tower 
makeup, and dilution of effluent heat content. The intended use of the 
cooling water is to absorb waste heat rejected from the process or 
processes used, or from auxiliary operations on the facility's premises. 
Cooling water that is used in another industrial process either before 
or after it is used for cooling is considered process water rather than 
cooling water for the purposes of calculating the percentage of a new 
offshore oil and gas extraction facility's intake flow that is used for 
cooling purposes in Sec. 125.131(c).
    Fixed facility means a bottom founded offshore oil and gas 
extraction facility permanently attached to the seabed or subsoil of the 
outer continental shelf (e.g., platforms, guyed towers, articulated 
gravity platforms) or a buoyant facility securely and substantially 
moored so that it cannot be moved without a special effort (e.g., 
tension leg platforms, permanently moored semi-submersibles) and which 
is not intended to be moved during the production life of the well. This 
definition does not include mobile offshore drilling units (MODUs) 
(e.g., drill ships, temporarily moored semi-submersibles, jack-ups, 
submersibles, tender-assisted rigs, and drill barges).
    Minimum ambient source water surface elevation means the mean low 
tidal water level for estuaries or oceans. The mean low tidal water 
level is the average height of the low water over at least 19 years.
    New offshore oil and gas extraction facility means any building, 
structure, facility, or installation that: meets the definition of a 
``new facility'' at 40 CFR 125.83; and is regulated by the Offshore or 
Coastal Subcategories of the Oil and Gas Extraction Point Source 
Category Effluent Guidelines in 40 CFR 435.10 or 40 CFR 435.40; but only 
if it commences construction after July 17, 2006.
    Offshore liquefied natural gas (LNG) import terminal means any 
facility located in waters defined in 40 CFR 435.10 or 40 CFR 435.40 
that liquefies, re-gasifies, transfers, or stores liquefied natural gas.
    Sea chest means the underwater compartment or cavity within the 
facility or vessel hull or pontoon through which sea water is drawn in 
(for cooling and other purposes) or discharged.
    Seafood processing vessel means any offshore or nearshore, floating, 
mobile, facility engaged in the processing of fresh, frozen, canned, 
smoked, salted or pickled seafood, seafood paste, mince, or meal.



Sec. 125.134  As an owner or operator of a new offshore oil and gas extraction 

facility, what must I do to comply with this subpart?

    (a)(1) The owner or operator of a new offshore oil and gas 
extraction facility must comply with:
    (i) Track I in paragraph (b) or Track II in paragraph (c) of this 
section, if it is a fixed facility; or
    (ii) Track I in paragraph (b) of this section, if it is not a fixed 
facility.
    (2) In addition to meeting the requirements in paragraph (b) or (c) 
of this section, the owner or operator of a new offshore oil and gas 
extraction facility may be required to comply with paragraph (d) of this 
section.
    (b) Track I requirements for new offshore oil and gas extraction 
facilities. (1)(i) New offshore oil and gas extraction facilities that 
do not employ sea chests as cooling water intake structures and are 
fixed facilities must comply with all of the requirements in paragraphs 
(b)(2) through (8) of this section.
    (ii) New offshore oil and gas extraction facilities that employ sea 
chests as cooling water intake structures and are fixed facilities must 
comply with the requirements in paragraphs (b)(2), (3), (4), (6), (7), 
and (8) of this section.

[[Page 400]]

    (iii) New offshore oil and gas extraction facilities that are not 
fixed facilities must comply with the requirements in paragraphs (b)(2), 
(4), (6), (7), and (8) of this section.
    (2) You must design and construct each cooling water intake 
structure at your facility to a maximum through-screen design intake 
velocity of 0.5 ft/s;
    (3) For cooling water intake structures located in an estuary or 
tidal river, the total design intake flow over one tidal cycle of ebb 
and flow must be no greater than one (1) percent of the volume of the 
water column within the area centered about the opening of the intake 
with a diameter defined by the distance of one tidal excursion at the 
mean low water level;
    (4) You must select and implement design and construction 
technologies or operational measures for minimizing impingement 
mortality of fish and shellfish if the Director determines that:
    (i) There are threatened or endangered or otherwise protected 
federal, state, or tribal species, or critical habitat for these 
species, within the hydraulic zone of influence of the cooling water 
intake structure; or
    (ii) Based on information submitted by any fishery management 
agency(ies) or other relevant information, there are migratory and/or 
sport or commercial species of impingement concern to the Director that 
pass through the hydraulic zone of influence of the cooling water intake 
structure; or
    (iii) Based on information submitted by any fishery management 
agency(ies) or other relevant information, that the proposed facility, 
after meeting the technology-based performance requirements in 
paragraphs (b)(2) and (5) of this section, would still contribute 
unacceptable stress to the protected species, critical habitat of those 
species, or species of concern;
    (5) You must select and implement design and construction 
technologies or operational measures for minimizing entrainment of 
entrainable life stages of fish and shellfish;
    (6) You must submit the applicable application information required 
in 40 CFR 122.21(r) and Sec. 125.136(b). If you are a fixed facility 
you must submit the information required in 40 CFR 122.21(r)(2) (except 
(r)(2)(iv)), (3), and (4) and Sec. 125.136(b) of this subpart as part 
of your application. If you are a not a fixed facility, you must only 
submit the information required in 40 CFR 122.21(r)(2)(iv), (r)(3) 
(except (r)(3)(ii)) and Sec. 125.136(b) as part of your application.
    (7) You must implement the monitoring requirements specified in 
Sec. 125.137; and
    (8) You must implement the recordkeeping requirements specified in 
Sec. 125.138.
    (c) Track II requirements for new offshore oil and gas extraction 
facilities. The owner or operator of a new offshore oil and gas 
extraction facility that is a fixed facility and chooses to comply under 
Track II must comply with the following requirements:
    (1) You must demonstrate to the Director that the technologies 
employed will reduce the level of adverse environmental impact from your 
cooling water intake structures to a comparable level to that which you 
would achieve were you to implement the applicable requirements of 
paragraph (b)(2) and, if your facility is a fixed facility without a sea 
chest, also paragraph (b)(5) of this section. This demonstration must 
include a showing that the impacts to fish and shellfish, including 
important forage and predator species, will be comparable to those which 
would result if you were to implement the requirements of paragraph 
(b)(2) and, if your facility is a fixed facility without a sea chest, 
also paragraph (b)(5) of this section. In identifying such species, the 
Director may consider information provided by any fishery management 
agency(ies) along with data and information from other sources;
    (2) For cooling water intake structures located in an estuary or 
tidal river, the total design intake flow over one tidal cycle of ebb 
and flow must be no greater than one (1) percent of the volume of the 
water column within the area centered about the opening of the intake 
with a diameter defined by the distance of one tidal excursion at the 
mean low water level;
    (3) You must submit the applicable information required in 40 CFR

[[Page 401]]

122.21(r)(2) (except (r)(2)(iv)), (3) and (4) and Sec. 125.136(c);
    (4) You must implement the monitoring requirements specified in 
Sec. 125.137;
    (5) You must implement the record-keeping requirements specified in 
Sec. 125.138.
    (d) You must comply with any more stringent requirements relating to 
the location, design, construction, and capacity of a cooling water 
intake structure or monitoring requirements at a new offshore oil and 
gas extraction facility that the Director deems are reasonably necessary 
to comply with any provision of federal or state law, including 
compliance with applicable state water quality standards (including 
designated uses, criteria, and antidegradation requirements).



Sec. 125.135  May alternative requirements be authorized?

    (a) Any interested person may request that alternative requirements 
less stringent than those specified in Sec. 125.134(a) through (d) be 
imposed in the permit. The Director may establish alternative 
requirements less stringent than the requirements of Sec. 125.134(a) 
through (d) only if:
    (1) There is an applicable requirement under Sec. 125.134(a) 
through (d);
    (2) The Director determines that data specific to the facility 
indicate that compliance with the requirement at issue would result in 
compliance costs wholly out of proportion to the costs EPA considered in 
establishing the requirement at issue or would result in significant 
adverse impacts on local water resources other than impingement or 
entrainment, or significant adverse impacts on energy markets;
    (3) The alternative requirement requested is no less stringent than 
justified by the wholly out of proportion cost or the significant 
adverse impacts on local water resources other than impingement or 
entrainment, or significant adverse impacts on energy markets; and
    (4) The alternative requirement will ensure compliance with other 
applicable provisions of the Clean Water Act and any applicable 
requirement of federal or state law.
    (b) The burden is on the person requesting the alternative 
requirement to demonstrate that alternative requirements should be 
authorized.



Sec. 125.136  As an owner or operator of a new offshore oil and gas extraction 

facility, what must I collect and submit when I apply for my new or reissued 

NPDES permit?

    (a)(1) As an owner or operator of a new offshore oil and gas 
extraction facility, you must submit to the Director a statement that 
you intend to comply with either:
    (i) The Track I requirements for new offshore oil and gas extraction 
facilities in Sec. 125.134(b); or
    (ii) If you are a fixed facility, you may choose to comply with the 
Track II requirements in Sec. 125.134(c).
    (2) You must also submit the application information required by 40 
CFR 122.21(r) and the information required in either paragraph (b) of 
this section for Track I or, if you are a fixed facility that chooses to 
comply under Track II, paragraph (c) of this section when you apply for 
a new or reissued NPDES permit in accordance with 40 CFR 122.21.
    (b) Track I application requirements. To demonstrate compliance with 
Track I requirements in Sec. 125.134(b), you must collect and submit to 
the Director the information in paragraphs (b)(1) through (3) of this 
section.
    (1) Velocity information. You must submit the following information 
to the Director to demonstrate that you are complying with the 
requirement to meet a maximum through-screen design intake velocity of 
no more than 0.5 ft/s at each cooling water intake structure as required 
in Sec. 125.134(b)(2):
    (i) A narrative description of the design, structure, equipment, and 
operation used to meet the velocity requirement; and
    (ii) Design calculations showing that the velocity requirement will 
be met at minimum ambient source water surface elevations (based on best 
professional judgment using available hydrological data) and maximum 
head loss across the screens or other device.
    (2) Source waterbody flow information. If you are a fixed facility 
and your

[[Page 402]]

cooling water intake structure is located in an estuary or tidal river, 
you must provide the mean low water tidal excursion distance and any 
supporting documentation and engineering calculations to show that your 
cooling water intake structure facility meets the flow requirements in 
Sec. 125.134(b)(3).
    (3) Design and Construction Technology Plan. To comply with Sec. 
125.134(b)(4) and/or (5), if applicable, you must submit to the Director 
the following information in a Design and Construction Technology Plan:
    (i) If the Director determines that additional impingement 
requirements should be included in your permit:
    (A) Information to demonstrate whether or not you meet the criteria 
in Sec. 125.134(b)(4);
    (B) Delineation of the hydraulic zone of influence for your cooling 
water intake structure;
    (ii) New offshore oil and gas extraction facilities required to 
install design and construction technologies and/or operational measures 
must develop a plan explaining the technologies and measures you have 
selected. (Examples of appropriate technologies include, but are not 
limited to, increased opening to cooling water intake structure to 
decrease design intake velocity, wedgewire screens, fixed screens, 
velocity caps, location of cooling water intake opening in waterbody, 
etc. Examples of appropriate operational measures include, but are not 
limited to, seasonal shutdowns or reductions in flow, continuous 
operations of screens, etc.) The plan must contain the following 
information, if applicable:
    (A) A narrative description of the design and operation of the 
design and construction technologies, including fish-handling and return 
systems, that you will use to maximize the survival of those species 
expected to be most susceptible to impingement. Provide species-specific 
information that demonstrates the efficacy of the technology;
    (B) To demonstrate compliance with Sec. 125.134(b)(5), if 
applicable, a narrative description of the design and operation of the 
design and construction technologies that you will use to minimize 
entrainment of those species expected to be the most susceptible to 
entrainment. Provide species-specific information that demonstrates the 
efficacy of the technology; and
    (C) Design calculations, drawings, and estimates to support the 
descriptions provided in paragraphs (b)(3)(ii)(A) and (B) of this 
section.
    (c) Application requirements for Track II. If you are a fixed 
facility and have chosen to comply with the requirements of Track II in 
Sec. 125.134(c) you must collect and submit the following information:
    (1) Source waterbody flow information. If your cooling water intake 
structure is located in an estuary or tidal river, you must provide the 
mean low water tidal excursion distance and any supporting documentation 
and engineering calculations to show that your cooling water intake 
structure facility meets the flow requirements in Sec. 125.134(c)(2);
    (2) Track II Comprehensive Demonstration Study. You must perform and 
submit the results of a Comprehensive Demonstration Study (Study). This 
information is required to characterize the source water baseline in the 
vicinity of the cooling water intake structure(s), characterize 
operation of the cooling water intake(s), and to confirm that the 
technology(ies) proposed and/or implemented at your cooling water intake 
structure reduce the impacts to fish and shellfish to levels comparable 
to those you would achieve were you to implement the applicable 
requirements in Sec. 125.134(b).
    (i) To meet the ``comparable level'' requirement, you must 
demonstrate that:
    (A) You have reduced impingement mortality of all life stages of 
fish and shellfish to 90 percent or greater of the reduction that would 
be achieved through the applicable requirements in Sec. 125.134(b)(2); 
and
    (B) If you are a facility without sea chests, you have minimized 
entrainment of entrainable life stages of fish and shellfish to 90 
percent or greater of the reduction that would have been achieved 
through the applicable requirements in Sec. 125.134(b)(5);
    (ii) You must develop and submit a plan to the Director containing a 
proposal for how information will be collected to support the study. The 
plan must include:

[[Page 403]]

    (A) A description of the proposed and/or implemented technology(ies) 
to be evaluated in the Study;
    (B) A list and description of any historical studies characterizing 
the physical and biological conditions in the vicinity of the proposed 
or actual intakes and their relevancy to the proposed Study. If you 
propose to rely on existing source water body data, it must be no more 
than 5 years old, you must demonstrate that the existing data are 
sufficient to develop a scientifically valid estimate of potential 
impingement mortality and (if applicable) entrainment impacts, and 
provide documentation showing that the data were collected using 
appropriate quality assurance/quality control procedures;
    (C) Any public participation or consultation with Federal or State 
agencies undertaken in developing the plan; and
    (D) A sampling plan for data that will be collected using actual 
field studies in the source water body. The sampling plan must document 
all methods and quality assurance procedures for sampling and data 
analysis. The sampling and data analysis methods you propose must be 
appropriate for a quantitative survey and based on consideration of 
methods used in other studies performed in the source water body. The 
sampling plan must include a description of the study area (including 
the area of influence of the cooling water intake structure and at least 
100 meters beyond); taxonomic identification of the sampled or evaluated 
biological assemblages (including all life stages of fish and 
shellfish); and sampling and data analysis methods; and
    (iii) You must submit documentation of the results of the Study to 
the Director. Documentation of the results of the Study must include:
    (A) Source Water Biological Study. The Source Water Biological Study 
must include:
    (1) A taxonomic identification and characterization of aquatic 
biological resources including: A summary of historical and contemporary 
aquatic biological resources; determination and description of the 
target populations of concern (those species of fish and shellfish and 
all life stages that are most susceptible to impingement and 
entrainment); and a description of the abundance and temporal/spatial 
characterization of the target populations based on the collection of 
multiple years of data to capture the seasonal and daily activities 
(e.g., spawning, feeding and water column migration) of all life stages 
of fish and shellfish found in the vicinity of the cooling water intake 
structure;
    (2) An identification of all threatened or endangered species that 
might be susceptible to impingement and entrainment by the proposed 
cooling water intake structure(s); and
    (3) A description of additional chemical, water quality, and other 
anthropogenic stresses on the source waterbody.
    (B) Evaluation of potential cooling water intake structure effects. 
This evaluation must include:
    (1) Calculations of the reduction in impingement mortality and, (if 
applicable), entrainment of all life stages of fish and shellfish that 
would need to be achieved by the technologies you have selected to 
implement to meet requirements under Track II. To do this, you must 
determine the reduction in impingement mortality and entrainment that 
would be achieved by implementing the requirements of Sec. 
125.134(b)(2) and, for facilities without sea chests, Sec. 
125.134(b)(5) of Track I at your site.
    (2) An engineering estimate of efficacy for the proposed and/or 
implemented technologies used to minimize impingement mortality and (if 
applicable) entrainment of all life stages of fish and shellfish and 
maximize survival of impinged life stages of fish and shellfish. You 
must demonstrate that the technologies reduce impingement mortality and 
(if applicable) entrainment of all life stages of fish and shellfish to 
a comparable level to that which you would achieve were you to implement 
the requirements in Sec. 125.134(b)(2) and, for facilities without sea 
chests, Sec. 125.134(b)(5) of Track I. The efficacy projection must 
include a site-specific evaluation of technology(ies) suitability for 
reducing impingement mortality and (if applicable) entrainment based on 
the results of the Source Water Biological Study in paragraph

[[Page 404]]

(c)(2)(iii)(A) of this section. Efficacy estimates may be determined 
based on case studies that have been conducted in the vicinity of the 
cooling water intake structure and/or site-specific technology prototype 
studies.
    (C) Verification monitoring plan. You must include in the Study a 
plan to conduct, at a minimum, two years of monitoring to verify the 
full-scale performance of the proposed or implemented technologies and/
or operational measures. The verification study must begin at the start 
of operations of the cooling water intake structure and continue for a 
sufficient period of time to demonstrate that the facility is reducing 
the level of impingement mortality and (if applicable) entrainment to 
the level documented in paragraph (c)(2)(iii)(B) of this section. The 
plan must describe the frequency of monitoring and the parameters to be 
monitored. The Director will use the verification monitoring to confirm 
that you are meeting the level of impingement mortality and entrainment 
reduction required in Sec. 125.134(c), and that the operation of the 
technology has been optimized.



Sec. 125.137  As an owner or operator of a new offshore oil and gas extraction 

facility, must I perform monitoring?

    As an owner or operator of a new offshore oil and gas extraction 
facility, you will be required to perform monitoring to demonstrate your 
compliance with the requirements specified in Sec. 125.134 or 
alternative requirements under Sec. 125.135.
    (a) Biological monitoring. (1)(i) Fixed facilities without sea 
chests that choose to comply with the Track I requirements in Sec. 
125.134(b)(1)(i) must monitor for entrainment. These facilities are not 
required to monitor for impingement, unless the Director determines that 
the information would be necessary to evaluate the need for or 
compliance with additional requirements in accordance with Sec. 
125.134(b)(4) or more stringent requirements in accordance with Sec. 
125.134(d).
    (ii) Fixed facilities with sea chests that choose to comply with 
Track I requirements are not required to perform biological monitoring 
unless the Director determines that the information would be necessary 
to evaluate the need for or compliance with additional requirements in 
accordance with Sec. 125.134(b)(4) or more stringent requirements in 
accordance with Sec. 125.134(d).
    (iii) Facilities that are not fixed facilities are not required to 
perform biological monitoring unless the Director determines that the 
information would be necessary to evaluate the need for or compliance 
with additional requirements in accordance with Sec. 125.134(b)(4) or 
more stringent requirements in accordance with Sec. 125.134(d).
    (iv) Fixed facilities with sea chests that choose to comply with 
Track II requirements in accordance with Sec. 125.134(c), must monitor 
for impingement only. Fixed facilities without sea chests that choose to 
comply with Track II requirements, must monitor for both impingement and 
entrainment.
    (2) Monitoring must characterize the impingement rates and (if 
applicable) entrainment rates) of commercial, recreational, and forage 
base fish and shellfish species identified in the Source Water Baseline 
Biological Characterization data required by 40 CFR 122.21(r)(4), 
identified in the Comprehensive Demonstration Study required by Sec. 
125.136(c)(2), or as specified by the Director.
    (3) The monitoring methods used must be consistent with those used 
for the Source Water Baseline Biological Characterization data required 
in 40 CFR 122.21(r)(4), those used by the Comprehensive Demonstration 
Study required by Sec. 125.136(c)(2), or as specified by the Director. 
You must follow the monitoring frequencies identified below for at least 
two (2) years after the initial permit issuance. After that time, the 
Director may approve a request for less frequent sampling in the 
remaining years of the permit term and when the permit is reissued, if 
supporting data show that less frequent monitoring would still allow for 
the detection of any seasonal variations in the species and numbers of 
individuals that are impinged or entrained.
    (4) Impingement sampling. You must collect samples to monitor 
impingement rates (simple enumeration) for each species over a 24-hour 
period and no less than once per month when the

[[Page 405]]

cooling water intake structure is in operation.
    (5) Entrainment sampling. If your facility is subject to the 
requirements of Sec. 125.134(b)(1)(i), or if your facility is subject 
to Sec. 125.134(c) and is a fixed facility without a sea chest, you 
must collect samples to monitor entrainment rates (simple enumeration) 
for each species over a 24-hour period and no less than biweekly during 
the primary period of reproduction, larval recruitment, and peak 
abundance identified during the Source Water Baseline Biological 
Characterization required by 40 CFR 122.21(r)(4) or the Comprehensive 
Demonstration Study required in Sec. 125.136(c)(2). You must collect 
samples only when the cooling water intake structure is in operation.
    (b) Velocity monitoring. If your facility uses a surface intake 
screen systems, you must monitor head loss across the screens and 
correlate the measured value with the design intake velocity. The head 
loss across the intake screen must be measured at the minimum ambient 
source water surface elevation (best professional judgment based on 
available hydrological data). The maximum head loss across the screen 
for each cooling water intake structure must be used to determine 
compliance with the velocity requirement in Sec. 125.134(b)(2). If your 
facility uses devices other than surface intake screens, you must 
monitor velocity at the point of entry through the device. You must 
monitor head loss or velocity during initial facility startup, and 
thereafter, at the frequency specified in your NPDES permit, but no less 
than once per quarter.
    (c) Visual or remote inspections. You must either conduct visual 
inspections or employ remote monitoring devices during the period the 
cooling water intake structure is in operation. You must conduct visual 
inspections at least weekly to ensure that any design and construction 
technologies required in Sec. 125.134(b)(4), (b)(5), (c), and/or (d) 
are maintained and operated to ensure that they will continue to 
function as designed. Alternatively, you must inspect via remote 
monitoring devices to ensure that the impingement and entrainment 
technologies are functioning as designed.



Sec. 125.138  As an owner or operator of a new offshore oil and gas extraction 

facility, must I keep records and report?

    As an owner or operator of a new offshore oil and gas extraction 
facility you are required to keep records and report information and 
data to the Director as follows:
    (a) You must keep records of all the data used to complete the 
permit application and show compliance with the requirements, any 
supplemental information developed under Sec. 125.136, and any 
compliance monitoring data submitted under Sec. 125.137, for a period 
of at least three (3) years from the date of permit issuance. The 
Director may require that these records be kept for a longer period.
    (b) You must provide the following to the Director in a yearly 
status report:
    (1) For fixed facilities, biological monitoring records for each 
cooling water intake structure as required by Sec. 125.137(a);
    (2) Velocity and head loss monitoring records for each cooling water 
intake structure as required by Sec. 125.137(b); and
    (3) Records of visual or remote inspections as required in Sec. 
125.137(c).



Sec. 125.139  As the Director, what must I do to comply with the requirements 

of this subpart?

    (a) Permit application. As the Director, you must review materials 
submitted by the applicant under 40 CFR 122.21(r), Sec. 125.135, and 
Sec. 125.136 at the time of the initial permit application and before 
each permit renewal or reissuance.
    (1) After receiving the initial permit application from the owner or 
operator of a new offshore oil and gas extraction facility, the Director 
must determine applicable standards in Sec. 125.134 or Sec. 125.135 to 
apply to the new offshore oil and gas extraction facility. In addition, 
the Director must review materials to determine compliance with the 
applicable standards.
    (2) For each subsequent permit renewal, the Director must review the 
application materials and monitoring data to determine whether 
requirements, or additional requirements, for design and construction 
technologies

[[Page 406]]

or operational measures should be included in the permit.
    (3) For Track II facilities, the Director may review the information 
collection proposal plan required by Sec. 125.136(c)(2)(ii). The 
facility may initiate sampling and data collection activities prior to 
receiving comment from the Director.
    (b) Permitting requirements. Section 316(b) requirements are 
implemented for a facility through an NPDES permit. As the Director, you 
must determine, based on the information submitted by the new offshore 
oil and gas extraction facility in its permit application, the 
appropriate requirements and conditions to include in the permit based 
on the track (Track I or Track II), or alternative requirements in 
accordance with Sec. 125.135, the new offshore oil and gas extraction 
facility has chosen to comply with. The following requirements must be 
included in each permit:
    (1) Cooling water intake structure requirements. At a minimum, the 
permit conditions must include the performance standards that implement 
the applicable requirements of Sec. 125.134(b)(2), (3), (4) and (5); 
Sec. 125.134(c)(1) and (2); or Sec. 125.135.
    (i) For a facility that chooses Track I, you must review the Design 
and Construction Technology Plan required in Sec. 125.136(b)(3) to 
evaluate the suitability and feasibility of the technology proposed to 
minimize impingement mortality and (if applicable) entrainment of all 
life stages of fish and shellfish. In the first permit issued, you must 
include a condition requiring the facility to reduce impingement 
mortality and/or entrainment commensurate with the implementation of the 
technologies in the permit. Under subsequent permits, the Director must 
review the performance of the technologies implemented and require 
additional or different design and construction technologies, if needed 
to minimize impingement mortality and/or entrainment of all life stages 
of fish and shellfish. In addition, you must consider whether more 
stringent conditions are reasonably necessary in accordance with Sec. 
125.134(d).
    (ii) For a fixed facility that chooses Track II, you must review the 
information submitted with the Comprehensive Demonstration Study 
information required in Sec. 125.136(c)(2), evaluate the suitability of 
the proposed design and construction technology and/or operational 
measures to determine whether they will reduce both impingement 
mortality and/or entrainment of all life stages of fish and shellfish to 
90 percent or greater of the reduction that could be achieved through 
Track I. In addition, you must review the Verification Monitoring Plan 
in Sec. 125.136(c)(2)(iii)(C) and require that the proposed monitoring 
begin at the start of operations of the cooling water intake structure 
and continue for a sufficient period of time to demonstrate that the 
technologies and operational measures meet the requirements in Sec. 
125.134(c)(1). Under subsequent permits, the Director must review the 
performance of the additional and /or different technologies or measures 
used and determine that they reduce the level of adverse environmental 
impact from the cooling water intake structures to a comparable level 
that the facility would achieve were it to implement the requirements of 
Sec. 125.134(b)(2) and, if applicable, Sec. 125.134(b)(5).
    (iii) If a facility requests alternative requirements in accordance 
with Sec. 125.135, you must determine if data specific to the facility 
meet the requirements in Sec. 125.135(a) and include in the permit 
requirements that are no less stringent than justified by the wholly out 
of proportion cost or the significant adverse impacts on local water 
resources other than impingement or entrainment, or significant adverse 
impacts on energy markets.
    (2) Monitoring conditions. At a minimum, the permit must require the 
permittee to perform the monitoring required in Sec. 125.137. You may 
modify the monitoring program when the permit is reissued and during the 
term of the permit based on changes in physical or biological conditions 
in the vicinity of the cooling water intake structure. The Director may 
require continued monitoring based on the results of monitoring done 
pursuant to the Verification Monitoring Plan in Sec. 
125.136(c)(2)(iii)(C).
    (3) Record keeping and reporting. At a minimum, the permit must 
require the

[[Page 407]]

permittee to report and keep records as required by Sec. 125.138.



PART 129_TOXIC POLLUTANT EFFLUENT STANDARDS--Table of Contents




      Subpart A_Toxic Pollutant Effluent Standards and Prohibitions

Sec.
129.1 Scope and purpose.
129.2 Definitions.
129.3 Abbreviations.
129.4 Toxic pollutants.
129.5 Compliance.
129.6 Adjustment of effluent standard for presence of toxic pollutant in 
          the intake water.
129.7 Requirement and procedure for establishing a more stringent 
          effluent limitation.
129.8 Compliance date.
129.9-129.99 [Reserved]
129.100 Aldrin/dieldrin.
129.101 DDT, DDD and DDE.
129.102 Endrin.
129.103 Toxaphene.
129.104 Benzidine.
129.105 Polychlorinated biphenyls (PCBs).

    Authority: Secs. 307, 308, 501, Federal Water Pollution Control Act 
Amendments of 1972 (Pub. L. 92-500, 86 Stat. 816, (33 U.S.C. 1251 et 
seq.)).

    Source: 42 FR 2613, Jan. 12, 1977, unless otherwise noted.



      Subpart A_Toxic Pollutant Effluent Standards and Prohibitions



Sec. 129.1  Scope and purpose.

    (a) The provisions of this subpart apply to owners or operators of 
specified facilities discharging into navigable waters.
    (b) The effluent standards or prohibitions for toxic pollutants 
established in this subpart shall be applicable to the sources and 
pollutants hereinafter set forth, and may be incorporated in any NPDES 
permit, modification or renewal thereof, in accordance with the 
provisions of this subpart.
    (c) The provisions of 40 CFR parts 124 and 125 shall apply to any 
NPDES permit proceedings for any point source discharge containing any 
toxic pollutant for which a standard or prohibition is established under 
this part.



Sec. 129.2  Definitions.

    All terms not defined herein shall have the meaning given them in 
the Act or in 40 CFR part 124 or 125. As used in this part, the term:
    (a) Act means the Federal Water Pollution Control Act, as amended 
(Pub. L. 92-500, 86 Stat. 816 et seq., 33 U.S.C. 1251 et seq.). Specific 
references to sections within the Act will be according to Pub. L. 92-
500 notation.
    (b) Administrator means the Administrator of the Environmental 
Protection Agency or any employee of the Agency to whom the 
Administrator may by order delegate the authority to carry out his 
functions under section 307(a) of the Act, or any person who shall by 
operation of law be authorized to carry out such functions.
    (c) Effluent standard means, for purposes of section 307, the 
equivalent of effluent limitation as that term is defined in section 
502(11) of the Act with the exception that it does not include a 
schedule of compliance.
    (d) Prohibited means that the constituent shall be absent in any 
discharge subject to these standards, as determined by any analytical 
method.
    (e) Permit means a permit for the discharge of pollutants into 
navigable waters under the National Pollutant Discharge Elimination 
System established by section 402 of the Act and implemented in 
regulations in 40 CFR parts 124 and 125.
    (f) Working day means the hours during a calendar day in which a 
facility discharges effluents subject to this part.
    (g) Ambient water criterion means that concentration of a toxic 
pollutant in a navigable water that, based upon available data, will not 
result in adverse impact on important aquatic life, or on consumers of 
such aquatic life, after exposure of that aquatic life for periods of 
time exceeding 96 hours and continuing at least through one reproductive 
cycle; and will not result in a significant risk of adverse health 
effects in a large human population based on available information such 
as mammalian laboratory toxicity data, epidemiological studies of human 
occupational exposures, or human exposure data, or any other relevant 
data.

[[Page 408]]

    (h) New source means any source discharging a toxic pollutant, the 
construction of which is commenced after proposal of an effluent 
standard or prohibition applicable to such source if such effluent 
standard or prohibition is thereafter promulgated in accordance with 
section 307.
    (i) Existing source means any source which is not a new source as 
defined above.
    (j) Source means any building, structure, facility, or installation 
from which there is or may be the discharge of toxic pollutants 
designated as such by the Administration under section 307(a)(1) of the 
Act.
    (k) Owner or operator means any person who owns, leases, operates, 
controls, or supervises a source as defined above.
    (l) Construction means any placement, assembly, or installation of 
facilities or equipment (including contractual obligations to purchase 
such facilities or equipment) at the premises where such equipment will 
be used, including preparation work at such premises.
    (m) Manufacturer means any establishment engaged in the mechanical 
or chemical transformation of materials or substances into new products 
including but not limited to the blending of materials such as 
pesticidal products, resins, or liquors.
    (n) Process wastes means any designated toxic pollutant, whether in 
wastewater or otherwise present, which is inherent to or unavoidably 
resulting from any manufacturing process, including that which comes 
into direct contact with or results from the production or use of any 
raw material, intermediate product, finished product, by-product or 
waste product and is discharged into the navigable waters.
    (o) Air emissions means the release or discharge of a toxic 
pollutant by an owner or operator into the ambient air either (1) by 
means of a stack or (2) as a fugitive dust, mist or vapor as a result 
inherent to the manufacturing or formulating process.
    (p) Fugitive dust, mist or vapor means dust, mist or vapor 
containing a toxic pollutant regulated under this part which is emitted 
from any source other than through a stack.
    (q) Stack means any chimney, flue, conduit, or duct arranged to 
conduct emissions to the ambient air.
    (r) Ten year 24-hour rainfall event means the maximum precipitation 
event with a probable recurrence interval of once in 10 years as defined 
by the National Weather Service in Technical Paper No. 40, Rainfall 
Frequency Atlas of the United States, May 1961, and subsequent 
amendments or equivalent regional or State rainfall probability 
information developed therefrom.
    (s) State Director means the chief administrative officer of a State 
or interstate water pollution control agency operating an approved HPDES 
permit program. In the event responsibility for water pollution control 
and enforcement is divided among two or more State or interstate 
agencies, the term State Director means the administrative officer 
authorized to perform the particular procedure to which reference is 
made.



Sec. 129.3  Abbreviations.

    The abbreviations used in this part represent the following terms:

lb=pound (or pounds)
g=gram
[micro]g/l=micrograms per liter (1 one-millionth gram/liter)
kg=kilogram(s)
kkg=1000 kilogram(s)



Sec. 129.4  Toxic pollutants.

    The following are the pollutants subject to regulation under the 
provisions of this subpart:
    (a) Aldrin/Dieldrin--Aldrin means the compound aldrin as identified 
by the chemical name, 1,2,3,4,10,10-hexachloro-1,4,4a,5,8,8a-hexahydro-
1,4 -endo-5,8-exo-dimethanonaphthalene; ``Dieldrin'' means the compound 
the dieldrin as identified by the chemical name 1,2,3,4,10,10-
hexachloro-6,7-epoxy-1,4,4a,5,6,7,8,8a-octahydro-1,4-endo-5,8-exo-
dimethanonaphthalene.
    (b) DDT--DDT means the compounds DDT, DDD, and DDE as identified by 
the chemical names:(DDT)-1,1,1-trichloro-2,2-bis(p-chlorophenyl) ethane 
and someo,p'-isomers; (DDD) or (TDE)-1,1-dichloro-2,2-bis(p-
chlorophenyl) ethane and some o,p'-isomers; (DDE)-1,1-dichloro-2,2-
bis(p-chlorophenyl) ethylene.

[[Page 409]]

    (c) Endrin--Endrin means the compound endrin as identified by the 
chemical name 1,2,3,4,10,10-hexachloro-6,7-epoxy-1,4,4a,5,6,7,8,8a-
octahydro-1,4-endo-5,8-endodimethanonaphthalene.
    (d) Toxaphene--Toxaphene means a material consisting of technical 
grade chlorinated camphene having the approximate formula of 
C10 H10 Cl8 and normally containing 67-
69 percent chlorine by weight.
    (e) Benzidine--Benzidine means the compound benzidine and its salts 
as identified by the chemical name 4,4'-diaminobiphenyl.
    (f) Polychlorinated Biphenyls (PCBs) polychlorinated biphenyls 
(PCBs) means a mixture of compounds composed of the biphenyl molecule 
which has been chlorinated to varying degrees.

[42 FR 2613, Jan. 12, 1977, as amended at 42 FR 2620, Jan. 12, 1977; 42 
FR 6555, Feb. 2, 1977]



Sec. 129.5  Compliance.

    (a)(1) Within 60 days from the date of promulgation of any toxic 
pollutant effluent standard or prohibition each owner or operator with a 
discharge subject to that standard or prohibition must notify the 
Regional Administrator (or State Director, if appropriate) of such 
discharge. Such notification shall include such information and follow 
such procedures as the Regional Administrator (or State Director, if 
appropriate) may require.
    (2) Any owner or operator who does not have a discharge subject to 
any toxic pollutant effluent standard at the time of such promulgation 
but who thereafter commences or intends to commence any activity which 
would result in such a discharge shall first notify the Regional 
Administrator (or State Director, if appropriate) in the manner herein 
provided at least 60 days prior to any such discharge.
    (b) Upon receipt of any application for issuance or reissuance of a 
permit or for a modification of an existing permit for a discharge 
subject to a toxic pollutant effluent standard or prohibition the 
permitting authority shall proceed thereon in accordance with 40 CFR 
part 124 or 125, whichever is applicable.
    (c)(1) Every permit which contains limitations based upon a toxic 
pollutant effluent standard or prohibition under this part is subject to 
revision following the completion of any proceeding revising such toxic 
pollutant effluent standard or prohibition regardless of the duration 
specified on the permit.
    (2) For purposes of this section, all toxic pollutants for which 
standards are set under this part are deemed to be injurious to human 
health within the meaning of section 402(k) of the Act unless otherwise 
specified in the standard established for any particular pollutant.
    (d)(1) Upon the compliance date for any section 307(a) toxic 
pollutant effluent standard or prohibition, each owner or operator of a 
discharge subject to such standard or prohibition shall comply with such 
monitoring, sampling, recording, and reporting conditions as the 
Regional Administrator (or State Director, if appropriate) may require 
for that discharge. Notice of such conditions shall be provided in 
writing to the owner or operator.
    (2) In addition to any conditions required pursuant to paragraph 
(d)(1) of this section and to the extent not required in conditions 
contained in NPDES permits, within 60 days following the close of each 
calendar year each owner or operator of a discharge subject to any toxic 
standard or prohibition shall report to the Regional Administrator (or 
State Director, if appropriate) concerning the compliance of such 
discharges. Such report shall include, as a minimum, information 
concerning (i) relevant identification of the discharger such as name, 
location of facility, discharge points, receiving waters, and the 
industrial process or operation emitting the toxic pollutant; (ii) 
relevant conditions (pursuant to paragraph (d)(1) of this section or to 
an NPDES permit) as to flow, section 307(a) toxic pollutant 
concentrations, and section 307(a) toxic pollutant mass emission rate; 
(iii) compliance by the discharger with such conditions.
    (3) When samples collected for analysis are composited, such samples 
shall be composited in proportion to the flow at time of collection and 
preserved in compliance with requirements of the Regional Administrator 
(or State Director, if appropriate), but shall include at least five 
samples, collected at

[[Page 410]]

approximately equal intervals throughout the working day.
    (e)(1) Nothing in these regulations shall preclude a Regional 
Administrator from requiring in any permit a more stringent effluent 
limitation or standard pursuant to section 301(b)(1)(C) of the Act and 
implemented in 40 CFR 125.11 and other related provisions of 40 CFR part 
125.
    (2) Nothing in these regulations shall preclude the Director of a 
State Water Pollution Control Agency or interstate agency operating a 
National Pollutant Discharge Elimination System Program which has been 
approved by the Administrator pursuant to section 402 of the Act from 
requiring in any permit a more stringent effluent limitation or standard 
pursuant to section 301(b)(1)(C) of the Act and implemented in 40 CFR 
124.42 and other related provisions of 40 CFR part 124.
    (f) Any owner or operator of a facility which discharges a toxic 
pollutant to the navigable waters and to a publicly owned treatment 
system shall limit the summation of the mass emissions from both 
discharges to the less restrictive standard, either the direct discharge 
standard or the pretreatment standard; but in no case will this 
paragraph allow a discharge to the navigable waters greater than the 
toxic pollutant effluent standard established for a direct discharge to 
the navigable waters.
    (g) In any permit hearing or other administrative proceeding 
relating to the implementation or enforcement of these standards, or any 
modification thereof, or in any judicial proceeding other than a 
petition for review of these standards pursuant to section 509(b)(1)(C) 
of the Act, the parties thereto may not contest the validity of any 
national standards established in this part, or the ambient water 
criterion established herein for any toxic pollutant.



Sec. 129.6  Adjustment of effluent standard for presence of toxic pollutant in 

the intake water.

    (a) Upon the request of the owner or operator of a facility 
discharging a pollutant subject to a toxic pollutant effluent standard 
or prohibition, the Regional Administrator (or State Director, if 
appropriate) shall give credit, and shall adjust the effluent 
standard(s) in such permit to reflect credit for the toxic pollutant(s) 
in the owner's or operator's water supply if (1) the source of the 
owner's or operator's water supply is the same body of water into which 
the discharge is made and if (2) it is demonstrated to the Regional 
Administrator (or State Director, if appropriate) that the toxic 
pollutant(s) present in the owner's or operator's intake water will not 
be removed by any wastewater treatment systems whose design capacity and 
operation were such as to reduce toxic pollutants to the levels required 
by the applicable toxic pollutant effluent standards in the absence of 
the toxic pollutant in the intake water.
    (b) Effluent limitations established pursuant to this section shall 
be calculated on the basis of the amount of section 307(a) toxic 
pollutant(s) present in the water after any water supply treatment steps 
have been performed by or for the owner or operator.
    (c) Any permit which includes toxic pollutant effluent limitations 
established pursuant to this section shall also contain conditions 
requiring the permittee to conduct additional monitoring in the manner 
and locations determined by the Regional Administrator (or State 
Director, if appropriate) for those toxic pollutants for which the toxic 
pollutant effluent standards have been adjusted.



Sec. 129.7  Requirement and procedure for establishing a more stringent 

effluent limitation.

    (a) In exceptional cases: (1) Where the Regional Administrator (or 
State Director, if appropriate) determines that the ambient water 
criterion established in these standards is not being met or will not be 
met in the receiving water as a result of one or more discharges at 
levels allowed by these standards, and
    (2) Where he further determines that this is resulting in or may 
cause or contribute to significant adverse effects on aquatic or other 
organisms usually or potentially present, or on human health, he may 
issue to an owner or operator a permit or a permit

[[Page 411]]

modification containing a toxic pollutant effluent limitation at a more 
stringent level than that required by the standard set forth in these 
regulations. Any such action shall be taken pursuant to the procedural 
provisions of 40 CFR parts 124 and 125, as appropriate. In any 
proceeding in connection with such action the burden of proof and of 
going forward with evidence with regard to such more stringent effluent 
limitation shall be upon the Regional Administrator (or State Director, 
if appropriate) as the proponent of such more stringent effluent 
limitation.
    (3) Evidence in such proceeding shall include at a minimum: An 
analysis using data and other information to demonstrate receiving water 
concentrations of the specified toxic pollutant, projections of the 
anticipated effects of the proposed modification on such receiving water 
concentrations, and the hydrologic and hydrographic characteristics of 
the receiving waters including the occurrence of dispersion of the 
effluent. Detailed specifications for presenting relevant information by 
any interested party may be prescribed in guidance documents published 
from time to time, whose availability will be announced in the Federal 
Register.
    (b) Any effluent limitation in an NPDES permit which a State 
proposes to issue which is more stringent than the toxic pollutant 
effluent standards promulgated by the Administrator is subject to review 
by the Administrator under section 402(d) of the Act. The Administrator 
may approve or disapprove such limitation(s) or specify another 
limitation(s) upon review of any record of any proceedings held in 
connection with the permit issuance or modification and any other 
evidence available to him. If he takes no action within ninety days of 
his receipt of the notification of the action of the permit issuing 
authority and any record thereof, the action of the State permit issuing 
authority shall be deemed to be approved.



Sec. 129.8  Compliance date.

    (a) The effluent standards or prohibitions set forth herein shall be 
complied with not later than one year after promulgation unless an 
earlier date is established by the Administrator for an industrial 
subcategory in the promulgation of the standards or prohibitions.
    (b) Toxic pollutant effluent standards or prohibitions set forth 
herein shall become enforceable under sections 307(d) and 309 of the Act 
on the date established in paragraph (a) of this section regardless of 
proceedings in connection with the issuance of any NPDES permit or 
application therefor, or modification or renewal thereof.



Sec. Sec. 129.9-129.99  [Reserved]



Sec. 129.100  Aldrin/dieldrin.

    (a) Specialized definitions. (1) Aldrin/Dieldrin manufacturer means 
a manufacturer, excluding any source which is exclusively an aldrin/
dieldrin formulator, who produces, prepares or processes technical 
aldrin or dieldrin or who uses aldrin or dieldrin as a material in the 
production, preparation or processing of another synthetic organic 
substance.
    (2) Aldrin/Dieldrin formulator means a person who produces, prepares 
or processes a formulated product comprising a mixture of either aldrin 
or dieldrin and inert materials or other diluents, into a product 
intended for application in any use registered under the Federal 
Insecticide, Fungicide and Rodenticide Act, as amended (7 U.S.C. 135, et 
seq.).
    (3) The ambient water criterion for aldrin/dieldrin in navigable 
waters is 0.003 [micro]g/l.
    (b) Aldrin/dieldrin manufacturer--(1) Applicability. (i) These 
standards or prohibitions apply to:
    (A) All discharges of process wastes; and
    (B) All discharges from the manufacturing areas, loading and 
unloading areas, storage areas and other areas which are subject to 
direct contamination by aldrin/dieldrin as a result of the manufacturing 
process, including but not limited to:
    (1) Stormwater and other runoff except as hereinafter provided in 
paragraph (b)(1)(ii) of this section; and
    (2) Water used for routine cleanup or cleanup of spills.
    (ii) These standards do not apply to stormwater runoff or other 
discharges from areas subject to contamination solely by fallout from 
air emissions of aldrin/dieldrin; or to stormwater runoff

[[Page 412]]

that exceeds that from the ten year 24-hour rainfall event.
    (2) Analytical method acceptable. Environmental Protection Agency 
method specified in 40 CFR part 136, except that a 1-liter sample size 
is required to increase the analytical sensitivity.
    (3) Effluent standard--(i) Existing sources. Aldrin or dieldrin is 
prohibited in any discharge from any aldrin/dieldrin manufacturer.
    (ii) New Sources. Aldrin or dieldrin is prohibited in any discharge 
from any aldrin/dieldrin manufacturer.
    (c) Aldrin/dieldrin formulator--(1) Applicability. (i) These 
standards or prohibitions apply to:
    (A) All discharges of process wastes; and
    (B) All discharges from the formulating areas, loading and unloading 
areas, storage areas and other areas which are subject to direct 
contamination by aldrin/dieldrin as a result of the formulating process, 
including but not limited to:
    (1) Stormwater and other runoff except as hereinafter provided in 
paragraph (c)(1)(ii) of this section; and
    (2) Water used for routine cleanup or cleanup of spills.
    (ii) These standards do not apply to stormwater runoff or other 
discharges from areas subject to contamination solely by fallout from 
air emissions of aldrin/dieldrin; or to stormwater runoff that exceeds 
that from the ten year 24-hour rainfall event.
    (2) Analytical method acceptable. Environmental Protection Agency 
method specified in 40 CFR part 136, except that a 1-liter sample size 
is required to increase the analytical sensitivity.
    (3) Effluent standard--(i) Existing sources. Aldrin or dieldrin is 
prohibited in any discharge from any aldrin/dieldrin formulator.
    (ii) New sources. Aldrin or dieldrin is prohibited in any discharge 
from any aldrin/dieldrin formulator.



Sec. 129.101  DDT, DDD and DDE.

    (a) Specialized definitions. (1) DDT Manufacturer means a 
manufacturer, excluding any source which is exclusively a DDT 
formulator, who produces, prepares or processes technical DDT, or who 
uses DDT as a material in the production, preparation or processing of 
another synthetic organic substance.
    (2) DDT formulator means a person who produces, prepares or 
processes a formulated product comprising a mixture of DDT and inert 
materials or other diluents into a product intended for application in 
any use registered under the Federal Insecticide, Fungicide and 
Rodenticide Act, as amended (7 U.S.C. 135, et seq.).
    (3) The ambient water criterion for DDT in navigable waters is 0.001 
[micro]g/l.
    (b) DDT manufacturer--(1) Applicability. (i) These standards or 
prohibitions apply to:
    (A) All discharges of process wastes; and
    (B) All discharges from the manufacturing areas, loading and 
unloading areas, storage areas and other areas which are subject to 
direct contamination by DDT as a result of the manufacturing process, 
including but not limited to:
    (1) Stormwater and other runoff except as hereinafter provided in 
paragraph (b)(1)(ii) of this section; and
    (2) Water used for routine cleanup or cleanup of spills.
    (ii) These standards do not apply to stormwater runoff or other 
discharges from areas subject to contamination solely by fallout from 
air emissions of DDT; or to stormwater runoff that exceeds that from the 
ten year 24-hour rainfall event.
    (2) Analytical method acceptable. Environmental Protection Agency 
method specified in 40 CFR part 136, except that a 1-liter sample size 
is required to increase the analytical sensitivity.
    (3) Effluent standard--(i) Existing sources. DDT is prohibited in 
any discharge from any DDT manufacturer.
    (ii) New sources. DDT is prohibited in any discharge from any DDT 
manufacturer.
    (c) DDT formulator--(1) Applicability. (i) These standards or 
prohibitions apply to:
    (A) All discharges of process wastes; and
    (B) All discharges from the formulating areas, loading and unloading 
areas, storage areas and other areas

[[Page 413]]

which are subject to direct contamination by DDT as a result of the 
formulating process, including but not limited to:
    (1) Stormwater and other runoff except as hereinafter provided in 
paragraph (c)(1)(ii) of this section; and
    (2) Water used for routine cleanup or cleanup of spills.
    (ii) These standards do not apply to stormwater runoff or other 
discharges from areas subject to contamination solely by fallout from 
air emissions of DDT; or to stormwater runoff that exceeds that from the 
ten year 24-hour rainfall event.
    (2) Analytical method acceptable. Environmental Protection Agency 
method specified in 40 CFR part 136, except that a 1-liter sample size 
is required to increase the analytical sensitivity.
    (3) Effluent standard--(i) Existing sources. DDT is prohibited in 
any discharge from any DDT formulator.
    (ii) New Sources. DDT is prohibited in any discharge from any DDT 
formulator.



Sec. 129.102  Endrin.

    (a) Specialized definitions. (1) Endrin Manufacturer means a 
manufacturer, excluding any source which is exclusively an endrin 
formulator, who produces, prepares or processes technical endrin or who 
uses endrin as a material in the production, preparation or processing 
of another synthetic organic substance.
    (2) Endrin Formulator means a person who produces, prepares or 
processes a formulated product comprising a mixture of endrin and inert 
materials or other diluents into a product intended for application in 
any use registered under the Federal Insecticide, Fungicide and 
Rodenticide Act, as amended (7 U.S.C. 135 et seq.).
    (3) The ambient water criterion for endrin in navigable waters is 
0.004 [micro]g/l.
    (b) Endrin manufacturer--(1) Applicability. (i) These standards or 
prohibitions apply to:
    (A) All discharges of process wastes; and
    (B) All discharges from the manufacturing areas, loading and 
unloading areas, storage areas and other areas which are subject to 
direct contamination by endrin as a result of the manufacturing process, 
including but not limited to:
    (1) Stormwater and other runoff except as hereinafter provided in 
paragraph (b)(1)(ii) of this section; and
    (2) Water used for routine cleanup or cleanup of spills.
    (ii) These standards do not apply to stormwater runoff or other 
discharges from areas subject to contamination solely by fallout from 
air emissions of endrin; or to stormwater runoff that exceeds that from 
the ten year 24-hour rainfall event.
    (2) Analytical method acceptable--Environmental Protection Agency 
method specified in 40 CFR part 136.
    (3) Effluent standard--(i) Existing sources. Discharges from an 
endrin manufacturer shall not contain endrin concentrations exceeding an 
average per working day of 1.5 [micro]g/l calculated over any calendar 
month; and shall not exceed a monthly average daily loading of 0.0006 
kg/kkg of endrin produced; and shall not exceed 7.5 [micro]g/l in a 
sample(s) representing any working day.
    (ii) New sources. Discharges from an endrin manufacturer shall not 
contain endrin concentrations exceeding an average per working day of 
0.1 [micro]g/l calculated over any calendar month; and shall not exceed 
a monthly average daily loading of 0.00004 kg/kkg of endrin produced; 
and shall not exceed 0.5 [micro]g/l in a sample(s) representing any 
working day.
    (iii) Mass emission standard during shutdown of production. In 
computing the allowable monthly average daily loading figure required 
under the preceding paragraphs (b)(3) (i) and (ii) of this section, for 
any calendar month for which there is no endrin being manufactured at 
any plant or facility which normally contributes to the discharge which 
is subject to these standards, the applicable production value shall be 
deemed to be the average monthly production level for the most recent 
preceding 360 days of actual operation of the plant or facility.
    (c) Endrin formulator--(1) Applicability. (i) These standards or 
prohibitions apply to:
    (A) All discharges of process wastes; and
    (B) All discharges from the formulating areas, loading and unloading

[[Page 414]]

areas, storage areas and other areas which are subject to direct 
contamination by endrin as a result of the formulating process, 
including but not limited to: (1) Stormwater and other runoff except as 
hereinafter provided in paragraph (c)(1)(ii) of this section; and (2) 
water used for routine cleanup or cleanup of spills.
    (ii) These standards do not apply to stormwater runoff or other 
discharges from areas subject to contamination solely by fallout from 
air emissions of endrin; or to storm-water runoff that exceeds that from 
the ten year 24-hour rainfall event.
    (2) Analytical method acceptable--Environmental Protection Agency 
method specified in 40 CFR part 136, except that a 1-liter sample size 
is required to increase the analytical sensitivity.
    (3) Effluent standard--(i) Existing sources. Endrin is prohibited in 
any discharge from any endrin formulator.
    (ii) New sources--Endrin is prohibited in any discharge from any 
endrin formulator.
    (d) The standards set forth in this section shall apply to the total 
combined weight or concentration of endrin, excluding any associated 
element or compound.



Sec. 129.103  Toxaphene.

    (a) Specialized definitions. (1) Toxaphene manufacturer means a 
manufacturer, excluding any source which is exclusively a toxaphene 
formulator, who produces, prepares or processes toxaphene or who uses 
toxaphene as a material in the production, preparation or processing of 
another synthetic organic substance.
    (2) Toxaphene formulator means a person who produces, prepares or 
processes a formulated product comprising a mixture of toxaphene and 
inert materials or other diluents into a product intended for 
application in any use registered under the Federal Insecticide, 
Fungicide and Rodenticide Act, as amended (7 U.S.C. 135, et seq.).
    (3) The ambient water criterion for toxaphene in navigable waters is 
0.005 [micro]g/l.
    (b) Toxaphene manufacturer--(1) Applicability. (i) These standards 
or prohibitions apply to:
    (A) All discharges of process wastes; and
    (B) All discharges from the manufacturing areas, loading and 
unloading areas, storage areas and other areas which are subject to 
direct contamination by toxaphene as a result of the manufacturing 
process, including but not limited to: (1) Stormwater and other runoff 
except as hereinafter provided in paragraph (b)(1)(ii) of this section; 
and (2) water used for routine cleanup or cleanup of spills.
    (ii) These standards do not apply to stormwater runoff or other 
discharges from areas subject to contamination solely by fallout from 
air emissions of toxaphene; or to stormwater runoff that exceeds that 
from the ten year 24-hour rainfall event.
    (2) Analytical method acceptable--Environmental Protection Agency 
method specified in 40 CFR part 136.
    (3) Effluent standard--(i) Existing sources. Discharges from a 
toxaphene manufacturer shall not contain toxaphene concentrations 
exceeding an average per working day of 1.5 [micro]g/l calculated over 
any calendar month; and shall not exceed a monthly average daily loading 
of 0.00003 kg/kkg of toxaphene produced, and shall not exceed 7.5 
[micro]g/l in a sample(s) representing any working day.
    (ii) New sources. Discharges from a toxaphene manufacturer shall not 
contain toxaphene concentrations exceeding an average per working day of 
0.1 [micro]g/l calculated over any calendar month; and shall not exceed 
a monthly average daily loading of 0.000002 kg/kkg of toxaphene 
produced, and shall not exceed 0.5 [micro]/l in a sample(s) representing 
any working day.
    (iii) Mass emission during shutdown of production. In computing the 
allowable monthly average daily loading figure required under the 
preceding paragraphs (b)(3)(i) and (ii) of this section, for any 
calendar month for which there is no toxaphene being manufactured at any 
plant or facility which normally contributes to the discharge which is 
subject to these standards, the applicable production value shall be 
deemed to be the average monthly production level for the most recent 
preceding 360 days of actual operation of the plant or facility.

[[Page 415]]

    (c) Toxaphene formulator--(1) Applicability. (i) These standards or 
prohibitions apply to:
    (A) All discharges of process wastes; and
    (B) All discharges from the formulating areas, loading and unloading 
areas, storage areas and other areas which are subject to direct 
contamination by toxaphene as a result of the formulating process, 
including but not limited to: (1) Stormwater and other runoff except as 
hereinafter provided in paragraph (c)(1)(ii) of this section; and (2) 
water used for routine cleanup or cleanup of spills.
    (ii) These standards do not apply to stormwater runoff or other 
discharges from areas subject to contamination solely by fallout from 
air emissions of toxaphene; or to stormwater runoff that exceeds that 
from the ten year 24-hour rainfall event.
    (2) Analytical method acceptable--Environmental Protection Agency 
method specified in 40 CFR part 136, except that a 1-liter sample size 
is required to increase the analytical sensitivity.
    (3) Effluent standards--(i) Existing sources. Toxaphene is 
prohibited in any discharge from any toxaphene formulator.
    (ii) New sources. Toxaphene is prohibited in any discharge from any 
toxaphene formulator.
    (d) The standards set forth in this section shall apply to the total 
combined weight or concentration of toxaphene, excluding any associated 
element or compound.



Sec. 129.104  Benzidine.

    (a) Specialized definitions. (1) Benzidine Manufacturer means a 
manufacturer who produces benzidine or who produces benzidine as an 
intermediate product in the manufacture of dyes commonly used for 
textile, leather and paper dyeing.
    (2) Benzidine-Based Dye Applicator means an owner or operator who 
uses benzidine-based dyes in the dyeing of textiles, leather or paper.
    (3) The ambient water criterion for benzidine in navigable waters is 
0.1 [micro]g/l.
    (b) Benzidine manufacturer--(1) Applicability. (i) These standards 
apply to:
    (A) All discharges into the navigable waters of process wastes, and
    (B) All discharges into the navigable waters of wastes containing 
benzidine from the manufacturing areas, loading and unloading areas, 
storage areas, and other areas subject to direct contamination by 
benzidine or benzidine-containing product as a result of the 
manufacturing process, including but not limited to:
    (1) Stormwater and other runoff except as hereinafter provided in 
paragraph (b)(1)(ii) of this section, and
    (2) Water used for routine cleanup or cleanup of spills.
    (ii) These standards do not apply to stormwater runoff or other 
discharges from areas subject to contamination solely by fallout from 
air emissions of benzidine; or to stormwater runoff that exceeds that 
from the ten year 24-hour rainfall event.
    (2) Analytical method acceptable--Environmental Protection Agency 
method specified in 40 CFR part 136.
    (3) Effluent standards--(i) Existing sources. Discharges from a 
benzidine manufacturer shall not contain benzidine concentrations 
exceeding an average per working day of 10 [micro]g/l calculated over 
any calendar month, and shall not exceed a monthly average daily loading 
of 0.130 kg/kkg of benzidine produced, and shall not exceed 50 [micro]g/
l in a sample(s) representing any working day.
    (ii) New sources. Discharges from a benzidine manufacturer shall not 
contain benzidine concentrations exceeding an average per working day of 
10 [micro]g/l calculated over any calendar month, and shall not exceed a 
monthly average daily loading of 0.130 kg/kkg of benzidine produced, and 
shall not exceed 50 [micro]g/l in a sample(s) representing any working 
day.
    (4) The standards set forth in this paragraph (b) shall apply to the 
total combined weight or concentration of benzidine, excluding any 
associated element or compound.
    (c) Benzidine-based dye applicators--(1) Applicability. (i) These 
standards apply to:
    (A) All discharges into the navigable waters of process wastes, and
    (B) All discharges into the navigable waters of wastes containing 
benzidine

[[Page 416]]

from the manufacturing areas, loading and unloading areas, storage 
areas, and other areas subject to direct contamination by benzidine or 
benzidine-containing product as a result of the manufacturing process, 
including but not limited to:
    (1) Stormwater and other runoff except as hereinafter provided in 
paragraph (c)(1)(ii) of this section, and
    (2) Water used for routine cleanup or cleanup of spills.
    (ii) These standards do not apply to stormwater runoff or other 
discharges from areas subject to contamination solely by fallout from 
air emissions of benzidine; or to stormwater that exceeds that from the 
ten year 24-hour rainfall event.
    (2) Analytical method acceptable. (i) Environmental Protection 
Agency method specified in 40 CFR part 136; or
    (ii) Mass balance monitoring approach which requires the calculation 
of the benzidine concentration by dividing the total benzidine contained 
in dyes used during a working day (as certified in writing by the 
manufacturer) by the total quantity of water discharged during the 
working day.

[Comment: The Regional Administrator (or State Director, if appropriate) 
shall rely entirely upon the method specified in 40 CFR part 136 in 
analyses performed by him for enforcement purposes.]

    (3) Effluent standards--(i) Existing sources. Discharges from 
benzidine-based dye applicators shall not contain benzidine 
concentrations exceeding an average per working day of 10 [micro]g/l 
calculated over any calendar month; and shall not exceed 25 [micro]g/l 
in a sample(s) or calculation(s) representing any working day.
    (ii) New sources. Discharges from benzidine-based dye applicators 
shall not contain benzidine concentrations exceeding an average per 
working day of 10 [micro]g/l calculated over any calendar month; and 
shall not exceed 25 [micro]g/l in a sample(s) or calculation(s) 
representing any working day.
    (4) The standards set forth in this paragraph (c) shall apply to the 
total combined concentrations of benzidine, excluding any associated 
element or compound.

[42 FR 2620, Jan. 12, 1977]



Sec. 129.105  Polychlorinated biphenyls (PCBs).

    (a) Specialized definitions. (1) PCB Manufacturer means a 
manufacturer who produces polychlorinated biphenyls.
    (2) Electrical capacitor manufacturer means a manufacturer who 
produces or assembles electrical capacitors in which PCB or PCB-
containing compounds are part of the dielectric.
    (3) Electrical transformer manufacturer means a manufacturer who 
produces or assembles electrical transformers in which PCB or PCB-
containing compounds are part of the dielectric.
    (4) The ambient water criterion for PCBs in navigable waters is 
0.001 [micro]g/l.
    (b) PCB manufacturer--(1) Applicability. (i) These standards or 
prohibitions apply to:
    (A) All discharges of process wastes;
    (B) All discharges from the manufacturing or incinerator areas, 
loading and unloading areas, storage areas, and other areas which are 
subject to direct contamination by PCBs as a result of the manufacturing 
process, including but not limited to:
    (1) Stormwater and other runoff except as hereinafter provided in 
paragraph (b)(1)(ii) of this section; and
    (2) Water used for routine cleanup or cleanup of spills.
    (ii) These standards do not apply to stormwater runoff or other 
discharges from areas subject to contamination solely by fallout from 
air emissions of PCBs; or to stormwater runoff that exceeds that from 
the ten-year 24-hour rainfall event.
    (2) Analytical Method Acceptable--Environmental Protection Agency 
method specified in 40 CFR part 136 except that a 1-liter sample size is 
required to increase analytical sensitivity.
    (3) Effluent standards--(i) Existing sources. PCBs are prohibited in 
any discharge from any PCB manufacturer;
    (ii) New sources. PCBs are prohibited in any discharge from any PCB 
manufacturer.
    (c) Electrical capacitor manufacturer--(1) Applicability. (i) These 
standards or prohibitions apply to:
    (A) All discharges of process wastes; and

[[Page 417]]

    (B) All discharges from the manufacturing or incineration areas, 
loading and unloading areas, storage areas and other areas which are 
subject to direct contamination by PCBs as a result of the manufacturing 
process, including but not limited to:
    (1) Stormwater and other runoff except as hereinafter provided in 
paragraph (c)(1)(ii) of this section; and
    (2) Water used for routine cleanup or cleanup of spills.
    (ii) These standards do not apply to stormwater runoff or other 
discharges from areas subject to contamination solely by fallout from 
air emissions of PCBs; or to stormwater runoff that exceeds that from 
the ten-year 24-hour rainfall event.
    (2) Analytical method acceptable. Environmental Protection Agency 
method specified in 40 CFR part 136, except that a 1-liter sample size 
is required to increase analytical sensitivity.
    (3) Effluent standards--(i) Existing sources. PCBs are prohibited in 
any discharge from any electrical capacitor manufacturer;
    (ii) New sources. PCBs are prohibited in any discharge from any 
electrical capacitor manufacturer.
    (d) Electrical transformer manufacturer--(1) Applicability. (i) 
These standards or prohibitions apply to:
    (A) All discharges of process wastes; and
    (B) All discharges from the manufacturing or incineration areas, 
loading and unloading areas, storage areas, and other areas which are 
subject to direct contamination by PCBs as a result of the manufacturing 
process, including but not limited to:
    (1) Stormwater and other runoff except as hereinafter provided in 
paragraph (d)(1)(ii) of this section; and
    (2) Water used for routine cleanup or cleanup of spills.
    (ii) These standards do not apply to stormwater runoff or other 
discharges from areas subject to contamination solely by fallout from 
air emissions of PCBs; or to stormwater runoff that exceeds that from 
the ten-year 24-hour rainfall event.
    (2) Analytical method acceptable. Environmental Protection Agency 
method specified in 40 CFR part 136, except that a 1-liter sample size 
is required to increase analytical sensitivity.
    (3) Effluent standards--(i) Existing sources. PCBs are prohibited in 
any discharge from any electrical transformer manufacturer;
    (ii) New sources. PCBs are prohibited in any discharge from any 
electrical transformer manufacturer.
    (e) Adjustment of effluent standard for presence of PCBs in intake 
water. Whenever a facility which is subject to these standards has PCBs 
in its effluent which result from the presence of PCBs in its intake 
waters, the owner may apply to the Regional Administrator (or State 
Director, if appropriate), for a credit pursuant to the provisions of 
Sec. 129.6, where the source of the water supply is the same body of 
water into which the discharge is made. The requirement of paragraph (1) 
of Sec. 129.6(a), relating to the source of the water supply, shall be 
waived, and such facility shall be eligible to apply for a credit under 
Sec. 129.6, upon a showing by the owner or operator of such facility to 
the Regional Administrator (or State Director, if appropriate) that the 
concentration of PCBs in the intake water supply of such facility does 
not exceed the concentration of PCBs in the receiving water body to 
which the plant discharges its effluent.

[42 FR 6555, Feb. 2, 1977]



PART 130_WATER QUALITY PLANNING AND MANAGEMENT--Table of Contents




Sec.
130.0 Program summary and purpose.
130.1 Applicability.
130.2 Definitions.
130.3 Water quality standards.
130.4 Water quality monitoring.
130.5 Continuing planning process.
130.6 Water quality management plans.
130.7 Total maximum daily loads (TMDL) and individual water quality-
          based effluent limitations.
130.8 Water quality report.
130.9 Designation and de-designation.
130.10 State submittals to EPA.
130.11 Program management.
130.12 Coordination with other programs.
130.15 Processing application for Indian tribes.

    Authority: 33 U.S.C. 1251 et seq.

    Source: 50 FR 1779, Jan. 11, 1985, unless otherwise noted.

[[Page 418]]



Sec. 130.0  Program summary and purpose.

    (a) This subpart establishes policies and program requirements for 
water quality planning, management and implementation under sections 
106, 205(j), non-construction management 205(g), 208, 303 and 305 of the 
Clean Water Act. The Water Quality Management (WQM) process described in 
the Act and in this regulation provides the authority for a consistent 
national approach for maintaining, improving and protecting water 
quality while allowing States to implement the most effective individual 
programs. The process is implemented jointly by EPA, the States, 
interstate agencies, and areawide, local and regional planning 
organizations. This regulation explains the requirements of the Act, 
describes the relationships between the several components of the WQM 
process and outlines the roles of the major participants in the process. 
The components of the WQM process are discussed below.
    (b) Water quality standards (WQS) are the State's goals for 
individual water bodies and provide the legal basis for control 
decisions under the Act. Water quality monitoring activities provide the 
chemical, physical and biological data needed to determine the present 
quality of a State's waters and to identify the sources of pollutants in 
those waters. The primary assessment of the quality of a State's water 
is contained in its biennial Report to Congress required by section 
305(b) of the Act.
    (c) This report and other assessments of water quality are used in 
the State's WQM plans to identify priority water quality problems. These 
plans also contain the results of the State's analyses and management 
decisions which are necessary to control specific sources of pollution. 
The plans recommend control measures and designated management agencies 
(DMAs) to attain the goals established in the State's water quality 
standards.
    (d) These control measures are implemented by issuing permits, 
building publicly-owned treatment works (POTWs), instituting best 
management practices for nonpoint sources of pollution and other means. 
After control measures are in place, the State evaluates the extent of 
the resulting improvements in water quality, conducts additional data 
gathering and planning to determine needed modifications in control 
measures and again institutes control measures.
    (e) This process is a dynamic one, in which requirements and 
emphases vary over time. At present, States have completed WQM plans 
which are generally comprehensive in geographic and programmatic scope. 
Technology based controls are being implemented for most point sources 
of pollution. However, WQS have not been attained in many water bodies 
and are threatened in others.
    (f) Present continuing planning requirements serve to identify these 
critical water bodies, develop plans for achieving higher levels of 
abatement and specify additional control measures. Consequently, this 
regulation reflects a programmatic emphasis on concentrating planning 
and abatement activities on priority water quality issues and geographic 
areas. EPA will focus its grant funds on activities designed to address 
these priorities. Annual work programs negotiated between EPA and State 
and interstate agencies will reflect this emphasis.



Sec. 130.1  Applicability.

    (a) This subpart applies to all State, eligible Indian Tribe, 
interstate, areawide and regional and local CWA water quality planning 
and management activities undertaken on or after February 11, 1985 
including all updates and continuing certifications for approved Water 
Quality Management (WQM) plans developed under sections 208 and 303 of 
the Act.
    (b) Planning and management activities undertaken prior to February 
11, 1985 are governed by the requirements of the regulations in effect 
at the time of the last grant award.

[50 FR 1779, Jan. 11, 1985, as amended at 54 FR 14359, Apr. 11, 1989; 59 
FR 13817, Mar. 23, 1994]



Sec. 130.2  Definitions.

    (a) The Act. The Clean Water Act, as amended, 33 U.S.C. 1251 et seq.
    (b) Indian Tribe. Any Indian Tribe, band, group, or community 
recognized

[[Page 419]]

by the Secretary of the Interior and exercising governmental authority 
over a Federal Indian reservation.
    (c) Pollution. The man-made or man-induced alteration of the 
chemical, physical, biological, and radiological integrity of water.
    (d) Water quality standards (WQS). Provisions of State or Federal 
law which consist of a designated use or uses for the waters of the 
United States and water quality criteria for such waters based upon such 
uses. Water quality standards are to protect the public health or 
welfare, enhance the quality of water and serve the purposes of the Act.
    (e) Load or loading. An amount of matter or thermal energy that is 
introduced into a receiving water; to introduce matter or thermal energy 
into a receiving water. Loading may be either man-caused (pollutant 
loading) or natural (natural background loading).
    (f) Loading capacity. The greatest amount of loading that a water 
can receive without violating water quality standards.
    (g) Load allocation (LA). The portion of a receiving water's loading 
capacity that is attributed either to one of its existing or future 
nonpoint sources of pollution or to natural background sources. Load 
allocations are best estimates of the loading, which may range from 
reasonably accurate estimates to gross allotments, depending on the 
availability of data and appropriate techniques for predicting the 
loading. Wherever possible, natural and nonpoint source loads should be 
distinguished.
    (h) Wasteload allocation (WLA). The portion of a receiving water's 
loading capacity that is allocated to one of its existing or future 
point sources of pollution. WLAs constitute a type of water quality-
based effluent limitation.
    (i) Total maximum daily load (TMDL). The sum of the individual WLAs 
for point sources and LAs for nonpoint sources and natural background. 
If a receiving water has only one point source discharger, the TMDL is 
the sum of that point source WLA plus the LAs for any nonpoint sources 
of pollution and natural background sources, tributaries, or adjacent 
segments. TMDLs can be expressed in terms of either mass per time, 
toxicity, or other appropriate measure. If Best Management Practices 
(BMPs) or other nonpoint source pollution controls make more stringent 
load allocations practicable, then wasteload allocations can be made 
less stringent. Thus, the TMDL process provides for nonpoint source 
control tradeoffs.
    (j) Water quality limited segment. Any segment where it is known 
that water quality does not meet applicable water quality standards, 
and/or is not expected to meet applicable water quality standards, even 
after the application of the technology-based effluent limitations 
required by sections 301(b) and 306 of the Act.
    (k) Water quality management (WQM) plan. A State or areawide waste 
treatment management plan developed and updated in accordance with the 
provisions of sections 205(j), 208 and 303 of the Act and this 
regulation.
    (l) Areawide agency. An agency designated under section 208 of the 
Act, which has responsibilities for WQM planning within a specified area 
of a State.
    (m) Best Management Practice (BMP). Methods, measures or practices 
selected by an agency to meet its nonpoint source control needs. BMPs 
include but are not limited to structural and nonstructural controls and 
operation and maintenance procedures. BMPs can be applied before, during 
and after pollution-producing activities to reduce or eliminate the 
introduction of pollutants into receiving waters.
    (n) Designated management agency (DMA). An agency identified by a 
WQM plan and designated by the Governor to implement specific control 
recommendations.

[50 FR 1779, Jan. 11, 1985, as amended at 54 FR 14359, Apr. 11, 1989]



Sec. 130.3  Water quality standards.

    A water quality standard (WQS) defines the water quality goals of a 
water body, or portion thereof, by designating the use or uses to be 
made of the water and by setting criteria necessary to protect the uses. 
States and EPA adopt WQS to protect public health or welfare, enhance 
the quality of water and serve the purposes of the

[[Page 420]]

Clean Water Act (CWA). Serve the purposes of Act (as defined in sections 
101(a)(2) and 303(c) of the Act) means that WQS should, wherever 
attainable, provide water quality for the protection and propagation of 
fish, shellfish and wildlife and for recreation in and on the water and 
take into consideration their use and value for public water supplies, 
propagation of fish, shellfish, wildlife, recreation in and on the 
water, and agricultural, industrial and other purposes including 
navigation.

Such standards serve the dual purposes of establishing the water quality 
goals for a specific water body and serving as the regulatory basis for 
establishment of water quality-based treatment controls and strategies 
beyond the technology-based level of treatment required by sections 
301(b) and 306 of the Act. States shall review and revise WQS in 
accordance with applicable regulations and, as appropriate, update their 
Water Quality Management (WQM) plans to reflect such revisions. Specific 
WQS requirements are found in 40 CFR part 131.



Sec. 130.4  Water quality monitoring.

    (a) In accordance with section 106(e)(1), States must establish 
appropriate monitoring methods and procedures (including biological 
monitoring) necessary to compile and analyze data on the quality of 
waters of the United States and, to the extent practicable, ground-
waters. This requirement need not be met by Indian Tribes. However, any 
monitoring and/or analysis activities undertaken by a Tribe must be 
performed in accordance with EPA's quality assurance/quality control 
guidance.
    (b) The State's water monitoring program shall include collection 
and analysis of physical, chemical and biological data and quality 
assurance and control programs to assure scientifically valid data. The 
uses of these data include determining abatement and control priorities; 
developing and reviewing water quality standards, total maximum daily 
loads, wasteload allocations and load allocations; assessing compliance 
with National Pollutant Discharge Elimination System (NPDES) permits by 
dischargers; reporting information to the public through the section 
305(b) report and reviewing site-specific monitoring efforts.

[50 FR 1779, Jan. 11, 1985, as amended at 54 FR 14359, Apr. 11, 1989]



Sec. 130.5  Continuing planning process.

    (a) General. Each State shall establish and maintain a continuing 
planning process (CPP) as described under section 303(e)(3)(A)-(H) of 
the Act. Each State is responsible for managing its water quality 
program to implement the processes specified in the continuing planning 
process. EPA is responsible for periodically reviewing the adequacy of 
the State's CPP.
    (b) Content. The State may determine the format of its CPP as long 
as the mininum requirements of the CWA and this regulation are met. The 
following processes must be described in each State CPP, and the State 
may include other processes at its discretion.
    (1) The process for developing effluent limitations and schedules of 
compliance at least as stringent as those required by sections 301(b) 
(1) and (2), 306 and 307, and at least stringent as any requirements 
contained in applicable water quality standards in effect under 
authority of section 303 of the Act.
    (2) The process for incorporating elements of any applicable 
areawide waste treatment plans under section 208, and applicable basin 
plans under section 209 of the Act.
    (3) The process for developing total maximum daily loads (TMDLs) and 
individual water quality based effluent limitations for pollutants in 
accordance with section 303(d) of the Act and Sec. 130.7(a) of this 
regulation.
    (4) The process for updating and maintaining Water Quality 
Management (WQM) plans, including schedules for revision.
    (5) The process for assuring adequate authority for 
intergovernmental cooperation in the implementation of the State WQM 
program.
    (6) The process for establishing and assuring adequate 
implementation of new or revised water quality standards, including 
schedules of compliance, under section 303(c) of the Act.

[[Page 421]]

    (7) The process for assuring adequate controls over the disposition 
of all residual waste from any water treatment processing.
    (8) The process for developing an inventory and ranking, in order of 
priority of needs for construction of waste treatment works required to 
meet the applicable requirements of sections 301 and 302 of the Act.
    (9) The process for determining the priority of permit issuance.
    (c) Regional Administrator review. The Regional Administrator shall 
review approved State CPPs from time to time to ensure that the planning 
processes are consistent with the Act and this regulation. The Regional 
Administrator shall not approve any permit program under Title IV of the 
Act for any State which does not have an approved continuing planning 
process.



Sec. 130.6  Water quality management plans.

    (a) Water quality management (WQM) plans. WQM plans consist of 
initial plans produced in accordance with sections 208 and 303(e) of the 
Act and certified and approved updates to those plans. Continuing water 
quality planning shall be based upon WQM plans and water quality 
problems identified in the latest 305(b) reports. State water quality 
planning should focus annually on priority issues and geographic areas 
and on the development of water quality controls leading to 
implementation measures. Water quality planning directed at the removal 
of conditions placed on previously certified and approved WQM plans 
should focus on removal of conditions which will lead to control 
decisions.
    (b) Use of WQM plans. WQM plans are used to direct implementation. 
WQM plans draw upon the water quality assessments to identify priority 
point and nonpoint water quality problems, consider alternative 
solutions and recommend control measures, including the financial and 
institutional measures necessary for implementing recommended solutions. 
State annual work programs shall be based upon the priority issues 
identified in the State WQM plan.
    (c) WQM plan elements. Sections 205(j), 208 and 303 of the Act 
specify water quality planning requirements. The following plan elements 
shall be included in the WQM plan or referenced as part of the WQM plan 
if contained in separate documents when they are needed to address water 
quality problems.
    (1) Total maximum daily loads. TMDLs in accordance with sections 
303(d) and (e)(3)(C) of the Act and Sec. 130.7 of this part.
    (2) Effluent limitations. Effluent limitations including water 
quality based effluent limitations and schedules of compliance in 
accordance with section 303(e)(3)(A) of the Act and Sec. 130.5 of this 
part.
    (3) Municipal and industrial waste treatment. Identification of 
anticipated municipal and industrial waste treatment works, including 
facilities for treatment of stormwater-induced combined sewer overflows; 
programs to provide necessary financial arrangements for such works; 
establishment of construction priorities and schedules for initiation 
and completion of such treatment works including an identification of 
open space and recreation opportunities from improved water quality in 
accordance with section 208(b)(2) (A) and (B) of the Act.
    (4) Nonpoint source management and control. (i) The plan shall 
describe the regulatory and non-regulatory programs, activities and Best 
Management Practices (BMPs) which the agency has selected as the means 
to control nonpoint source pollution where necessary to protect or 
achieve approved water uses. Economic, institutional, and technical 
factors shall be considered in a continuing process of identifying 
control needs and evaluating and modifying the BMPs as necessary to 
achieve water quality goals.
    (ii) Regulatory programs shall be identified where they are 
determined to be necessary by the State to attain or maintain an 
approved water use or where non-regulatory approaches are inappropriate 
in accomplishing that objective.
    (iii) BMPs shall be identified for the nonpoint sources identified 
in section 208(b)(2)(F)-(K) of the Act and other nonpoint sources as 
follows:
    (A) Residual waste. Identification of a process to control the 
disposition of all residual waste in the area which could

[[Page 422]]

affect water quality in accordance with section 208(b)(2)(J) of the Act.
    (B) Land disposal. Identification of a process to control the 
disposal of pollutants on land or in subsurface excavations to protect 
ground and surface water quality in accordance with section 208(b)(2)(K) 
of the Act.
    (C) Agricultural and silvicultural. Identification of procedures to 
control agricultural and silvicultural sources of pollution in 
accordance with section 208(b)(2)(F) of the Act.
    (D) Mines. Identification of procedures to control mine-related 
sources of pollution in accordance with section 208(b)(2)(G) of the Act.
    (E) Construction. Identification of procedures to control 
construction related sources of pollution in accordance with section 
208(b)(2)(H) of the Act.
    (F) Saltwater intrusion. Identification of procedures to control 
saltwater intrusion in accordance with section 208(b)(2)(I) of the Act.
    (G) Urban stormwater. Identification of BMPs for urban stormwater 
control to achieve water quality goals and fiscal analysis of the 
necessary capital and operations and maintenance expenditures in 
accordance with section 208(b)(2)(A) of the Act.
    (iv) The nonpoint source plan elements outlined in Sec. 130.6(c) 
(4)(iii)(A)(G) of this regulation shall be the basis of water quality 
activities implemented through agreements or memoranda of understanding 
between EPA and other departments, agencies or instrumentalities of the 
United States in accordance with section 304(k) of the Act.
    (5) Management agencies. Identification of agencies necessary to 
carry out the plan and provision for adequate authority for 
intergovernmental cooperation in accordance with sections 208(b)(2)(D) 
and 303(e)(3)(E) of the Act. Management agencies must demonstrate the 
legal, institutional, managerial and financial capability and specific 
activities necessary to carry out their responsibilities in accordance 
with section 208(c)(2)(A) through (I) of the Act.
    (6) Implementation measures. Identification of implementation 
measures necessary to carry out the plan, including financing, the time 
needed to carry out the plan, and the economic, social and environmental 
impact of carrying out the plan in accordance with section 208(b)(2)(E).
    (7) Dredge or fill program. Identification and development of 
programs for the control of dredge or fill material in accordance with 
section 208(b)(4)(B) of the Act.
    (8) Basin plans. Identification of any relationship to applicable 
basin plans developed under section 209 of the Act.
    (9) Ground water. Identification and development of programs for 
control of ground-water pollution including the provisions of section 
208(b)(2)(K) of the Act. States are not required to develop ground-water 
WQM plan elements beyond the requirements of section 208(b)(2)(K) of the 
Act, but may develop a ground-water plan element if they determine it is 
necessary to address a ground-water quality problem. If a State chooses 
to develop a ground-water plan element, it should describe the 
essentials of a State program and should include, but is not limited to:
    (i) Overall goals, policies and legislative authorities for 
protection of ground-water.
    (ii) Monitoring and resource assessment programs in accordance with 
section 106(e)(1) of the Act.
    (iii) Programs to control sources of contamination of ground-water 
including Federal programs delegated to the State and additional 
programs authorized in State statutes.
    (iv) Procedures for coordination of ground-water protection programs 
among State agencies and with local and Federal agencies.
    (v) Procedures for program management and administration including 
provision of program financing, training and technical assistance, 
public participation, and emergency management.
    (d) Indian Tribes. An Indian Tribe is eligible for the purposes of 
this rule and the Clean Water Act assistance programs under 40 CFR part 
35, subparts A and H if:
    (1) The Indian Tribe has a governing body carrying out substantial 
governmental duties and powers;

[[Page 423]]

    (2) The functions to be exercised by the Indian Tribe pertain to the 
management and protection of water resources which are held by an Indian 
Tribe, held by the United States in trust for Indians, held by a member 
of an Indian Tribe if such property interest is subject to a trust 
restriction on alienation, or otherwise within the borders of an Indian 
reservation; and
    (3) The Indian Tribe is reasonably expected to be capable, in the 
Regional Administrator's judgment, of carrying out the functions to be 
exercised in a manner consistent with the terms and purposes of the 
Clean Water Act and applicable regulations.
    (e) Update and certification. State and/or areawide agency WQM plans 
shall be updated as needed to reflect changing water quality conditions, 
results of implementation actions, new requirements or to remove 
conditions in prior conditional or partial plan approvals. Regional 
Administrators may require that State WQM plans be updated as needed. 
State Continuing Planning Processes (CPPs) shall specify the process and 
schedule used to revise WQM plans. The State shall ensure that State and 
areawide WQM plans together include all necessary plan elements and that 
such plans are consistent with one another. The Governor or the 
Governor's designee shall certify by letter to the Regional 
Administrator for EPA approval that WQM plan updates are consistent with 
all other parts of the plan. The certification may be contained in the 
annual State work program.
    (f) Consistency. Construction grant and permit decisions must be 
made in accordance with certified and approved WQM plans as described in 
Sec. Sec. 130.12(a) and 130.12(b).

[50 FR 1779, Jan. 11, 1985, as amended at 54 FR 14360, Apr. 11, 1989; 59 
FR 13818, Mar. 23, 1994]



Sec. 130.7  Total maximum daily loads (TMDL) and individual water quality-

based effluent limitations.

    (a) General. The process for identifying water quality limited 
segments still requiring wasteload allocations, load allocations and 
total maximum daily loads (WLAs/LAs and TMDLs), setting priorities for 
developing these loads; establishing these loads for segments 
identified, including water quality monitoring, modeling, data analysis, 
calculation methods, and list of pollutants to be regulated; submitting 
the State's list of segments identified, priority ranking, and loads 
established (WLAs/LAs/TMDLs) to EPA for approval; incorporating the 
approved loads into the State's WQM plans and NPDES permits; and 
involving the public, affected dischargers, designated areawide 
agencies, and local governments in this process shall be clearly 
described in the State Continuing Planning Process (CPP).
    (b) Identification and priority setting for water quality-limited 
segments still requiring TMDLs.
    (1) Each State shall identify those water quality-limited segments 
still requiring TMDLs within its boundaries for which:
    (i) Technology-based effluent limitations required by sections 
301(b), 306, 307, or other sections of the Act;
    (ii) More stringent effluent limitations (including prohibitions) 
required by either State or local authority preserved by section 510 of 
the Act, or Federal authority (law, regulation, or treaty); and
    (iii) Other pollution control requirements (e.g., best management 
practices) required by local, State, or Federal authority are not 
stringent enough to implement any water quality standards (WQS) 
applicable to such waters.
    (2) Each State shall also identify on the same list developed under 
paragraph (b)(1) of this section those water quality-limited segments 
still requiring TMDLs or parts thereof within its boundaries for which 
controls on thermal discharges under section 301 or State or local 
requirements are not stringent enough to assure protection and 
propagation of a balanced indigenous population of shellfish, fish and 
wildlife.
    (3) For the purposes of listing waters under Sec. 130.7(b), the 
term ``water quality standard applicable to such waters'' and 
``applicable water quality standards'' refer to those water quality 
standards established under section 303 of the Act, including numeric 
criteria,

[[Page 424]]

narrative criteria, waterbody uses, and antidegradation requirements.
    (4) The list required under Sec. Sec. 130.7(b)(1) and 130.7(b)(2) 
of this section shall include a priority ranking for all listed water 
quality-limited segments still requiring TMDLs, taking into account the 
severity of the pollution and the uses to be made of such waters and 
shall identify the pollutants causing or expected to cause violations of 
the applicable water quality standards. The priority ranking shall 
specifically include the identification of waters targeted for TMDL 
development in the next two years.
    (5) Each State shall assemble and evaluate all existing and readily 
available water quality-related data and information to develop the list 
required by Sec. Sec. 130.7(b)(1) and 130.7(b)(2). At a minimum ``all 
existing and readily available water quality-related data and 
information'' includes but is not limited to all of the existing and 
readily available data and information about the following categories of 
waters:
    (i) Waters identified by the State in its most recent section 305(b) 
report as ``partially meeting'' or ``not meeting'' designated uses or as 
``threatened'';
    (ii) Waters for which dilution calculations or predictive models 
indicate nonattainment of applicable water quality standards;
    (iii) Waters for which water quality problems have been reported by 
local, state, or federal agencies; members of the public; or academic 
institutions. These organizations and groups should be actively 
solicited for research they may be conducting or reporting. For example, 
university researchers, the United States Department of Agriculture, the 
National Oceanic and Atmospheric Administration, the United States 
Geological Survey, and the United States Fish and Wildlife Service are 
good sources of field data; and
    (iv) Waters identified by the State as impaired or threatened in a 
nonpoint assessment submitted to EPA under section 319 of the CWA or in 
any updates of the assessment.
    (6) Each State shall provide documentation to the Regional 
Administrator to support the State's determination to list or not to 
list its waters as required by Sec. Sec. 130.7(b)(1) and 130.7(b)(2). 
This documentation shall be submitted to the Regional Administrator 
together with the list required by Sec. Sec. 130.7(b)(1) and 
130.7(b)(2) and shall include at a minimum:
    (i) A description of the methodology used to develop the list; and
    (ii) A description of the data and information used to identify 
waters, including a description of the data and information used by the 
State as required by Sec. 130.7(b)(5); and
    (iii) A rationale for any decision to not use any existing and 
readily available data and information for any one of the categories of 
waters as described in Sec. 130.7(b)(5); and
    (iv) Any other reasonable information requested by the Regional 
Administrator. Upon request by the Regional Administrator, each State 
must demonstrate good cause for not including a water or waters on the 
list. Good cause includes, but is not limited to, more recent or 
accurate data; more sophisticated water quality modeling; flaws in the 
original analysis that led to the water being listed in the categories 
in Sec. 130.7(b)(5); or changes in conditions, e.g., new control 
equipment, or elimination of discharges.
    (c) Development of TMDLs and individual water quality based effluent 
limitations.
    (1) Each State shall establish TMDLs for the water quality limited 
segments identified in paragraph (b)(1) of this section, and in 
accordance with the priority ranking. For pollutants other than heat, 
TMDLs shall be established at levels necessary to attain and maintain 
the applicable narrative and numerical WQS with seasonal variations and 
a margin of safety which takes into account any lack of knowledge 
concerning the relationship between effluent limitations and water 
quality. Determinations of TMDLs shall take into account critical 
conditions for stream flow, loading, and water quality parameters.
    (i) TMDLs may be established using a pollutant-by-pollutant or 
biomonitoring approach. In many cases both techniques may be needed. 
Site-specific information should be used wherever possible.

[[Page 425]]

    (ii) TMDLs shall be established for all pollutants preventing or 
expected to prevent attainment of water quality standards as identified 
pursuant to paragraph (b)(1) of this section. Calculations to establish 
TMDLs shall be subject to public review as defined in the State CPP.
    (2) Each State shall estimate for the water quality limited segments 
still requiring TMDLs identified in paragraph (b)(2) of this section, 
the total maximum daily thermal load which cannot be exceeded in order 
to assure protection and propagation of a balanced, indigenous 
population of shellfish, fish and wildlife. Such estimates shall take 
into account the normal water temperatures, flow rates, seasonal 
variations, existing sources of heat input, and the dissipative capacity 
of the identified waters or parts thereof. Such estimates shall include 
a calculation of the maximum heat input that can be made into each such 
part and shall include a margin of safety which takes into account any 
lack of knowledge concerning the development of thermal water quality 
criteria for protection and propagation of a balanced, indigenous 
population of shellfish, fish and wildlife in the identified waters or 
parts thereof.
    (d) Submission and EPA approval. (1) Each State shall submit 
biennially to the Regional Administrator beginning in 1992 the list of 
waters, pollutants causing impairment, and the priority ranking 
including waters targeted for TMDL development within the next two years 
as required under paragraph (b) of this section. For the 1992 biennial 
submission, these lists are due no later than October 22, 1992. 
Thereafter, each State shall submit to EPA lists required under 
paragraph (b) of this section on April 1 of every even-numbered year. 
For the year 2000 submission, a State must submit a list required under 
paragraph (b) of this section only if a court order or consent decree, 
or commitment in a settlement agreement dated prior to January 1, 2000, 
expressly requires EPA to take action related to that State's year 2000 
list. For the year 2002 submission, a State must submit a list required 
under paragraph (b) of this section by October 1, 2002, unless a court 
order, consent decree or commitment in a settlement agreement expressly 
requires EPA to take an action related to that State's 2002 list prior 
to October 1, 2002, in which case, the State must submit a list by April 
1, 2002. The list of waters may be submitted as part of the State's 
biennial water quality report required by Sec. 130.8 of this part and 
section 305(b) of the CWA or submitted under separate cover. All WLAs/
LAs and TMDLs established under paragraph (c) for water quality limited 
segments shall continue to be submitted to EPA for review and approval. 
Schedules for submission of TMDLs shall be determined by the Regional 
Administrator and the State.
    (2) The Regional Administrator shall either approve or disapprove 
such listing and loadings not later than 30 days after the date of 
submission. The Regional Administrator shall approve a list developed 
under Sec. 130.7(b) that is submitted after the effective date of this 
rule only if it meets the requirements of Sec. 130.7(b). If the 
Regional Administrator approves such listing and loadings, the State 
shall incorporate them into its current WQM plan. If the Regional 
Administrator disapproves such listing and loadings, he shall, not later 
than 30 days after the date of such disapproval, identify such waters in 
such State and establish such loads for such waters as determined 
necessary to implement applicable WQS. The Regional Administrator shall 
promptly issue a public notice seeking comment on such listing and 
loadings. After considering public comment and making any revisions he 
deems appropriate, the Regional Administrator shall transmit the listing 
and loads to the State, which shall incorporate them into its current 
WQM plan.
    (e) For the specific purpose of developing information and as 
resources allow, each State shall identify all segments within its 
boundaries which it has not identified under paragraph (b) of this 
section and estimate for such waters the TMDLs with seasonal variations 
and margins of safety, for those pollutants which the Regional 
Administrator identifies under section 304(a)(2) as suitable for such 
calculation and for thermal discharges, at a level that would assure 
protection and

[[Page 426]]

propagation of a balanced indigenous population of fish, shellfish and 
wildlife. However, there is no requirement for such loads to be 
submitted to EPA for approval, and establishing TMDLs for those waters 
identified in paragraph (b) of this section shall be given higher 
priority.

[50 FR 1779, Jan. 11, 1985, as amended at 57 FR 33049, July 24, 1992; 65 
FR 17170, Mar. 31, 2000; 66 FR 53048, Oct. 18, 2001]



Sec. 130.8  Water quality report.

    (a) Each State shall prepare and submit biennially to the Regional 
Administrator a water quality report in accordance with section 305(b) 
of the Act. The water quality report serves as the primary assessment of 
State water quality. Based upon the water quality data and problems 
identified in the 305(b) report, States develop water quality management 
(WQM) plan elements to help direct all subsequent control activities. 
Water quality problems identified in the 305(b) report should be 
analyzed through water quality management planning leading to the 
development of alternative controls and procedures for problems 
identified in the latest 305(b) report. States may also use the 305(b) 
report to describe ground-water quality and to guide development of 
ground-water plans and programs. Water quality problems identified in 
the 305(b) report should be emphasized and reflected in the State's WQM 
plan and annual work program under sections 106 and 205(j) of the Clean 
Water Act.
    (b) Each such report shall include but is not limited to the 
following:
    (1) A description of the water quality of all waters of the United 
States and the extent to which the quality of waters provides for the 
protection and propagation of a balanced population of shellfish, fish, 
and wildlife and allows recreational activities in and on the water.
    (2) An estimate of the extent to which CWA control programs have 
improved water quality or will improve water quality for the purposes of 
paragraph (b)(1) of this section, and recommendations for future actions 
necessary and identifications of waters needing action.
    (3) An estimate of the environmental, economic and social costs and 
benefits needed to achieve the objectives of the CWA and an estimate of 
the date of such achievement.
    (4) A description of the nature and extent of nonpoint source 
pollution and recommendations of programs needed to control each 
category of nonpoint sources, including an estimate of implementation 
costs.
    (5) An assessment of the water quality of all publicly owned lakes, 
including the status and trends of such water quality as specified in 
section 314(a)(1) of the Clean Water Act.
    (c) States may include a description of the nature and extent of 
ground-water pollution and recommendations of State plans or programs 
needed to maintain or improve ground-water quality.
    (d) In the years in which it is prepared the biennial section 305(b) 
report satisfies the requirement for the annual water quality report 
under section 205(j). In years when the 305(b) report is not required, 
the State may satisfy the annual section 205(j) report requirement by 
certifying that the most recently submitted section 305(b) report is 
current or by supplying an update of the sections of the most recently 
submitted section 305(b) report which require updating.

[50 FR 1779, Jan.11, 1985, as amended at 57 FR 33050, July 24, 1992]



Sec. 130.9  Designation and de-designation.

    (a) Designation. Areawide planning agencies may be designated by the 
Governor in accordance with section 208(a) (2) and (3) of the Act or may 
self-designate in accordance with section 208(a)(4) of the Act. Such 
designations shall subject to EPA approval in accordance with section 
208(a)(7) of the Act.
    (b) De-designation. The Governor may modify or withdraw the planning 
designation of a designated planning agency other than an Indian tribal 
organization self-designated Sec. 130.6(c)(2) if:
    (1) The areawide agency requests such cancellation; or
    (2) The areawide agency fails to meet its planning requirements as 
specified

[[Page 427]]

in grant agreements, contracts or memoranda of understanding; or
    (3) The areawide agency no longer has the resources or the 
commitment to continue water quality planning activities within the 
designated boundaries.
    (c) Impact of de-designation. Once an areawide planning agency's 
designation has been withdrawn the State agency shall assume direct 
responsibility for continued water quality planning and oversight of 
implementation within the area.
    (d) Designated management agencies (DMA). In accordance with section 
208(c)(1) of the Act, management agencies shall be designated by the 
Governor in consultation with the designated planning agency. EPA shall 
approve such designations unless the DMA lacks the legal, financial and 
managerial authority required under section 208(c)(2) of the Act. 
Designated management agencies shall carry out responsibilities 
specified in Water Quality Management (WQM) plans. Areawide planning 
agencies shall monitor DMA activities in their area and recommend 
necessary plan changes during the WQM plan update. Where there is no 
designated areawide planning agency, States shall monitor DMA activities 
and make any necessary changes during the WQM plan update.



Sec. 130.10  State submittals to EPA.

    (a) The following must be submitted regularly by the States to EPA:
    (1) The section 305(b) report, in FY 84 and every two years 
thereafter, and the annual section 205(j) certification or update of the 
305(b) water quality report; (Approved by OMB under the control number 
2040-0071)
    (2) The annual State work program(s) under sections 106 and 205(j) 
of the Act; and (Approved by OMB under the control number 2010-0004)
    (3) Revisions or additions to water quality standards (WQS) 
(303(c)). (Approved by OMB under 2040-0049)
    (b) The Act also requires that each State initially submit to EPA 
and revise as necessary the following:
    (1) Continuing planning process (CPP) (303(e));
    (2) Identification of water quality-limited waters still requiring 
TMDLs (section 303(d)), pollutants, and the priority ranking including 
waters targeted for TMDL development within the next two years as 
required under Sec. 130.7(b) in accordance with the schedule set for in 
Sec. 130.7(d)(1).

(Approved by the Office of Management and Budget under control number 
2040-0071)
    (3) Total maximum daily loads (TMDLs) (303(d)); and
    (4) Water quality management (WQM) plan and certified and approved 
WQM plan updates (208, 303(e)). (Paragraph (b)(1), (4) approved by OMB 
under the control number 2010-0004).
    (c) The form and content of required State submittals to EPA may be 
tailored to reflect the organization and needs of the State, as long as 
the requirements and purposes of the Act, this part and, where 
applicable, 40 CFR parts 29, 30, 33 and 35, subparts A and J are met. 
The need for revision and schedule of submittals shall be agreed to 
annually with EPA as the States annual work program is developed.
    (d) Not later than February 4, 1989, each State shall submit to EPA 
for review, approval, and implementation--
    (1) A list of those waters within the State which after the 
application of effluent limitations required under section 301(b)(2) of 
the CWA cannot reasonably be anticipated to attain or maintain (i) water 
quality standards for such waters reviewed, revised, or adopted in 
accordance with section 303(c)(2)(B) of the CWA, due to toxic 
pollutants, or (ii) that water quality which shall assure protection of 
public health, public water supplies, agricultural and industrial uses, 
and the protection and propagation of a balanced population of 
shellfish, fish and wildlife, and allow recreational activities in and 
on the water;
    (2) A list of all navigable waters in such State for which the State 
does not expect the applicable standard under section 303 of the CWA 
will be achieved after the requirements of sections 301(b), 306, and 
307(b) are met, due entirely or substantially to discharges from point 
sources of any toxic pollutants listed pursuant to section 307(a);
    (3) For each segment of navigable waters included on such lists, a 
determination of the specific point source discharging any such toxic 
pollutant

[[Page 428]]

which is believed to be preventing or impairing such water quality and 
the amount of each such toxic pollutant discharged by each such source.

(Approved by the Office of Management and Budget under control number 
2040-0152)
    (4) For the purposes of listing waters under Sec. 130.10(d)(2), 
applicable standard means a numeric criterion for a priority pollutant 
promulgated as part of a state water quality standard. Where a state 
numeric criterion for a priority pollutant is not promulgated as part of 
a state water quality standard, for the purposes of listing waters 
``applicable standard'' means the state narrative water quality 
criterion to control a priority pollutant (e.g., no toxics in toxic 
amounts) interpreted on a chemical-by-chemical basis by applying a 
proposed state cirterion, an explicit state policy or regulation, or an 
EPA national water quality criterion, supplemented with other relevant 
information.
    (5) If a water meets either of the two conditions listed below the 
water must be listed under Sec. 130.10(d)(2) on the grounds that the 
applicable standard is not achieved or expected to be achieved due 
entirely or substantially to discharges from point sources.
    (i) Existing or additional water quality-based limits on one or more 
point sources would result in the achievement of an applicable water 
quality standard for a toxic pollutant; or
    (ii) The discharge of a toxic pollutant from one or more point 
sources, regardless of any nonpoint source contribution of the same 
pollutant, is sufficient to cause or is expected to cause an excursion 
above the applicable water quality standard for the toxic pollutant.
    (6) Each state shall assemble and evaluate all existing and readily 
available water quality-related data and information and each state 
shall develop the lists required by paragraphs (d)(1), (2), and (3) of 
this section based upon this data and information. At a minimum, all 
existing and readily available water quality-related data and 
information includes, but is not limited to, all of the existing and 
readily available data about the following categories of waters in the 
state:
    (i) Waters where fishing or shellfish bans and/or advisories are 
currently in effect or are anticipated.
    (ii) Waters where there have been repeated fishkills or where 
abnormalities (cancers, lesions, tumors, etc.) have been observed in 
fish or other aquatic life during the last ten years.
    (iii) Waters where there are restrictions on water sports or 
recreational contact.
    (iv) Waters identified by the state in its most recent state section 
305(b) report as either ``partially achieving'' or ``not achieving'' 
designated uses.
    (v) Waters identified by the states under section 303(d) of the CWA 
as waters needing water quality-based controls.
    (vi) Waters identified by the state as priority waterbodies. (State 
Water Quality Management plans often include priority waterbody lists 
which are those waters that most need water pollution control decisions 
to achieve water quality standards or goals.)
    (vii) Waters where ambient data indicate potential or actual 
exceedances of water quality criteria due to toxic pollutants from an 
industry classified as a primary industry in appendix A of 40 CFR part 
122.
    (viii) Waters for which effluent toxicity test results indicate 
possible or actual exceedances of state water quality standards, 
including narrative ``free from'' water quality criteria or EPA water 
quality criteria where state criteria are not available.
    (ix) Waters with primary industrial major dischargers where dilution 
analyses indicate exceedances of state narrative or numeric water 
quality criteria (or EPA water quality criteria where state standards 
are not available) for toxic pollutants, ammonia, or chlorine. These 
dilution analyses must be based on estimates of discharge levels derived 
from effluent guidelines development documents, NPDES permits or permit 
application data (e.g., Form 2C), Discharge Monitoring Reports (DMRs), 
or other available information.
    (x) Waters with POTW dischargers requiring local pretreatment 
programs where dilution analyses indicate exceedances of state water 
quality criteria (or EPA water quality criteria

[[Page 429]]

where state water quality criteria are not available) for toxic 
pollutants, ammonia, or chlorine. These dilution analyses must be based 
upon data from NPDES permits or permit applications (e.g., Form 2C), 
Discharge Monitoring Reports (DMRs), or other available information.
    (xi) Waters with facilities not included in the previous two 
categories such as major POTWs, and industrial minor dischargers where 
dilution analyses indicate exceedances of numeric or narrative state 
water quality criteria (or EPA water quality criteria where state water 
quality criteria are not available) for toxic pollutants, ammonia, or 
chlorine. These dilution analyses must be based upon estimates of 
discharge levels derived from effluent guideline development documents, 
NPDES permits or permit application data, Discharge Monitoring Reports 
(DMRs), or other available information.
    (xii) Waters classified for uses that will not support the 
``fishable/swimmable'' goals of the Clean Water Act.
    (xiii) Waters where ambient toxicity or adverse water quality 
conditions have been reported by local, state, EPA or other Federal 
Agencies, the private sector, public interest groups, or universities. 
These organizations and groups should be actively solicited for research 
they may be conducting or reporting. For example, university 
researchers, the United States Department of Agriculture, the National 
Oceanic and Atmospheric Administration, the United States Geological 
Survey, and the United States Fish and Wildlife Service are good sources 
of field data and research.
    (xiv) Waters identified by the state as impaired in its most recent 
Clean Lake Assessments conducted under section 314 of the Clean Water 
Act.
    (xv) Waters identified as impaired by nonpoint sources in the 
America's Clean Water: The States' Nonpoint Source Assessments 1985 
(Association of State and Interstate Water Pollution Control 
Administrators (ASIWPCA)) or waters identified as impaired or threatened 
in a nonpoint source assessment submitted by the state to EPA under 
section 319 of the Clean Water Act.
    (xvi) Surface waters impaired by pollutants from hazardous waste 
sites on the National Priority List prepared under section 105(8)(A) of 
CERCLA.
    (7) Each state shall provide documentation to the Regional 
Administrator to support the state's determination to list or not to 
list waters as required by paragraphs (d)(1), (d)(2) and (d)(3) of this 
section. This documentation shall be submitted to the Regional 
Administrator together with the lists required by paragraphs (d)(1), 
(d)(2), and (d)(3) of this section and shall include as a minimum:
    (i) A description of the methodology used to develop each list;
    (ii) A description of the data and information used to identify 
waters and sources including a description of the data and information 
used by the state as required by paragraph (d)(6) of this section;
    (iii) A rationale for any decision not to use any one of the 
categories of existing and readily available data required by paragraph 
(d)(6) of this section; and
    (iv) Any other information requested by the Regional Administrator 
that is reasonable or necessary to determine the adequacy of a state's 
lists. Upon request by the Regional Administrator, each state must 
demonstrate good cause for not including a water or waters on one or 
more lists. Good cause includes, but is not limited to, more recent or 
accurate data; more accurate water quality modeling; flaws in the 
original analysis that led to the water being identified in a category 
in Sec. 130.10(d)(6); or changes in conditions, e.g., new control 
equipment, or elimination of discharges.
    (8) The Regional Administrator shall approve or disapprove each list 
required by paragraphs (d)(1), (d)(2), and (d)(3) of this section no 
later than June 4, 1989. The Regional Administrator shall approve each 
list required under paragraphs (d)(1), (d)(2), and (d)(3) of this 
section only if it meets the regulatory requirements for listing under 
paragraphs (d)(1), (d)(2), and (d)(3) of this section and if the state 
has met all the requirements of paragraphs (d)(6) and (d)(7) of this 
section.
    (9) If a state fails to submit lists in accordance with paragraph 
(d) of this

[[Page 430]]

section or the Regional Administrator does not approve the lists 
submitted by such state in accordance with this paragraph, then not 
later than June 4, 1990, the Regional Administrator, in cooperation with 
such state, shall implement the requirements of CWA section 304(l) (1) 
and (2) in such state.
    (10) If the Regional Administrator disapproves a state's decision 
with respect to one or more of the waters required under paragraph (d) 
(1), (2), or (3) of this section, or one or more of the individual 
control strategies required pursuant to section 304(l)(1)(D), then not 
later than June 4, 1989, the Regional Administrator shall distribute the 
notice of approval or disapproval given under this paragraph to the 
appropriate state Director. The Regional Administrator shall also 
publish a notice of availability, in a daily or weekly newspaper with 
state-wide circulation or in the Federal Register, for the notice of 
approval or disapproval. The Regional Administrator shall also provide 
written notice to each discharger identified under section 304(l)(1)(C), 
that EPA has listed the discharger under section 304(l)(1)(C). The 
notice of approval and disapproval shall include the following:
    (i) The name and address of the EPA office that reviews the state's 
submittals.
    (ii) A brief description of the section 304(l) process.
    (iii) A list of waters, point sources and pollutants disapproved 
under this paragraph.
    (iv) If the Regional Administrator determines that a state did not 
provide adequate public notice and an opportunity to comment on the 
lists prepared under this section, or if the Regional Administrator 
chooses to exercise his or her discretion, a list of waters, point 
sources, or pollutants approved under this paragraph.
    (v) The name, address, and telephone number of the person at the 
Regional Office from whom interested persons may obtain more 
information.
    (vi) Notice that written petitions or comments are due within 120 
days.
    (11) As soon as practicable, but not later than June 4, 1990, the 
Regional Office shall issue a response to petitions or comments received 
under paragraph (d)(10) of this section. Notice shall be given in the 
same manner as notice described in paragraph (d)(10) of this section, 
except for the following changes to the notice of approvals and 
disapprovals:
    (i) The lists of waters, point sources and pollutants must reflect 
any changes made pursuant to comments or petitions received.
    (ii) A brief description of the subsequent steps in the section 
304(l) process shall be included.

[50 FR 1779, Jan. 11, 1985, as amended at 54 FR 258, Jan. 4, 1989; 54 FR 
23897, June 2, 1989; 57 FR 33050, July 24, 1992]



Sec. 130.11  Program management.

    (a) State agencies may apply for grants under sections 106, 205(j) 
and 205(g) to carry out water quality planning and management 
activities. Interstate agencies may apply for grants under section 106 
to carry out water quality planning and management activities. Local or 
regional planning organizations may request 106 and 205(j) funds from a 
State for planning and management activities. Grant administrative 
requirements for these funds appear in 40 CFR parts 25, 29, 30, 33 and 
35, subparts A and J.
    (b) Grants under section 106 may be used to fund a wide range of 
activities, including but not limited to assessments of water quality, 
revision of water quality standards (WQS), development of alternative 
approaches to control pollution, implementation and enforcement of 
control measures and development or implementation of ground water 
programs. Grants under section 205(j) may be used to fund water quality 
management (WQM) planning activities but may not be used to fund 
implementation of control measures (see part 35, subpart A). Section 
205(g) funds are used primarily to manage the wastewater treatment works 
construction grants program pursuant to the provisions of 40 CFR part 
35, subpart J. A State may also use part of the 205(g) funds to 
administer approved permit programs under sections 402 and 404, to 
administer a statewide waste treatment management program under section 
208(b)(4)

[[Page 431]]

and to manage waste treatment construction grants for small communities.
    (c) Grant work programs for water quality planning and management 
shall describe geographic and functional priorities for use of grant 
funds in a manner which will facilitate EPA review of the grant 
application and subsequent evaluation of work accomplished with the 
grant funds. A State's 305(b) Report, WQM plan and other water quality 
assessments shall identify the State's priority water quality problems 
and areas. The WQM plan shall contain an analysis of alternative control 
measures and recommendations to control specific problems. Work programs 
shall specify the activities to be carried out during the period of the 
grant; the cost of specific activities; the outputs, for example, 
permits issued, intensive surveys, wasteload allocations, to be produced 
by each activity; and where applicable, schedules indicating when 
activities are to be completed.
    (d) State work programs under sections 106, 205(j) and 205(g) shall 
be coordinated in a manner which indicates the funding from these grants 
dedicated to major functions, such as permitting, enforcement, 
monitoring, planning and standards, nonpoint source implementation, 
management of construction grants, operation and maintenance of 
treatment works, ground-water, emergency response and program 
management. States shall also describe how the activities funded by 
these grants are used in a coordinated manner to address the priority 
water quality problems identified in the State's water quality 
assessment under section 305(b).
    (e) EPA, States, areawide agencies, interstate agencies, local and 
Regional governments, and designated management agencies (DMAs) are 
joint participants in the water pollution control program. States may 
enter into contractual arrangements or intergovernmental agreements with 
other agencies concerning the performance of water quality planning and 
management tasks. Such arrangements shall reflect the capabilities of 
the respective agencies and shall efficiently utilize available funds 
and funding eligibilities to meet Federal requirements commensurate with 
State and local priorities. State work programs under section 205(j) 
shall be developed jointly with local, Regional and other comprehensive 
planning organizations.



Sec. 130.12  Coordination with other programs.

    (a) Relationship to the National Pollutant Discharge Elimination 
System (NPDES) program. In accordance with section 208(e) of the Act, no 
NPDES permit may be issued which is in conflict with an approved Water 
Quality Management (WQM) plan. Where a State has assumed responsibility 
for the administration of the permit program under section 402, it shall 
assure consistency with the WQM plan.
    (b) Relationship to the municipal construction grants program. In 
accordance with sections 205(j), 216 and 303(e)(3)(H) of the Act, each 
State shall develop a system for setting priorities for funding 
construction of municipal wastewater treatment facilities under section 
201 of the Act. The State, or the agency to which the State has 
delegated WQM planning functions, shall review each facility plan in its 
area for consistency with the approved WQM plan. Under section 208(d) of 
the Act, after a waste treatment management agency has been designated 
and a WQM plan approved, section 201 construction grant funds may be 
awarded only to those agencies for construction of treatment works in 
conformity with the approved WQM plan.
    (c) Relationship to Federal activities--Each department, agency or 
instrumentality of the executive, legislative and judicial branches of 
the Federal Government having jurisdiction over any property or facility 
or engaged in any activity resulting, or which may result, in the 
discharge or runoff of pollutants shall comply with all Federal, State, 
interstate and local requirements, administrative authority, and process 
and sanctions respecting the control and abatement of water pollution in 
the same manner and extent as any non-governmental entity in accordance 
with section 313 of the CWA.

[[Page 432]]



Sec. 130.15  Processing application for Indian tribes.

    The Regional Administrator shall process an application of an Indian 
Tribe submitted under Sec. 130.6(d) in a timely manner. He shall 
promptly notify the Indian Tribe of receipt of the application.

[54 FR 14360, Apr. 11, 1989, as amended at 59 FR 13818, Mar. 23, 1994]



PART 131_WATER QUALITY STANDARDS--Table of Contents




                      Subpart A_General Provisions

Sec.
131.1 Scope.
131.2 Purpose.
131.3 Definitions.
131.4 State authority.
131.5 EPA authority.
131.6 Minimum requirements for water quality standards submission.
131.7 Dispute resolution mechanism.
131.8 Requirements for Indian Tribes to administer a water quality 
          standards program.

           Subpart B_Establishment of Water Quality Standards

131.10 Designation of uses.
131.11 Criteria.
131.12 Antidegradation policy.
131.13 General policies.

 Subpart C_Procedures for Review and Revision of Water Quality Standards

131.20 State review and revision of water quality standards.
131.21 EPA review and approval of water quality standards.
131.22 EPA promulgation of water quality standards.

         Subpart D_Federally Promulgated Water Quality Standards

131.31 Arizona.
131.32 Pennsylvania.
131.33 Idaho.
131.34 Kansas.
131.35 Colville Confederated Tribes Indian Reservation.
131.36 Toxics criteria for those states not complying with Clean Water 
          Act section 303(c)(2)(B).
131.37 California.
131.38 Establishment of numeric criteria for priority toxic pollutants 
          for the State of California.
131.40 Puerto Rico.
131.41 Bacteriological criteria for those states not complying with 
          Clean Water Act section 303(i)(1)(A).
131.42 Antidegradation implementation methods for the Commonwealth of 
          Puerto Rico.

    Authority: 33 U.S.C. 1251 et seq.

    Source: 48 FR 51405, Nov. 8, 1983, unless otherwise noted.



                      Subpart A_General Provisions



Sec. 131.1  Scope.

    This part describes the requirements and procedures for developing, 
reviewing, revising, and approving water quality standards by the States 
as authorized by section 303(c) of the Clean Water Act. Additional 
specific procedures for developing, reviewing, revising, and approving 
water quality standards for Great Lakes States or Great Lakes Tribes (as 
defined in 40 CFR 132.2) to conform to section 118 of the Clean Water 
Act and 40 CFR part 132, are provided in 40 CFR part 132.

[60 FR 15386, Mar. 23, 1995]



Sec. 131.2  Purpose.

    A water quality standard defines the water quality goals of a water 
body, or portion thereof, by designating the use or uses to be made of 
the water and by setting criteria necessary to protect the uses. States 
adopt water quality standards to protect public health or welfare, 
enhance the quality of water and serve the purposes of the Clean Water 
Act (the Act). ``Serve the purposes of the Act'' (as defined in sections 
101(a)(2) and 303(c) of the Act) means that water quality standards 
should, wherever attainable, provide water quality for the protection 
and propagation of fish, shellfish and wildlife and for recreation in 
and on the water and take into consideration their use and value of 
public water supplies, propagation of fish, shellfish, and wildlife, 
recreation in and on the water, and agricultural, industrial, and other 
purposes including navigation.

Such standards serve the dual purposes of establishing the water quality 
goals for a specific water body and serve as the regulatory basis for 
the establishment of water-quality-based treatment controls and 
strategies beyond the

[[Page 433]]

technology-based levels of treatment required by sections 301(b) and 306 
of the Act.



Sec. 131.3  Definitions.

    (a) The Act means the Clean Water Act (Pub. L. 92-500, as amended 
(33 U.S.C. 1251 et seq.)).
    (b) Criteria are elements of State water quality standards, 
expressed as constituent concentrations, levels, or narrative 
statements, representing a quality of water that supports a particular 
use. When criteria are met, water quality will generally protect the 
designated use.
    (c) Section 304(a) criteria are developed by EPA under authority of 
section 304(a) of the Act based on the latest scientific information on 
the relationship that the effect of a constituent concentration has on 
particular aquatic species and/or human health. This information is 
issued periodically to the States as guidance for use in developing 
criteria.
    (d) Toxic pollutants are those pollutants listed by the 
Administrator under section 307(a) of the Act.
    (e) Existing uses are those uses actually attained in the water body 
on or after November 28, 1975, whether or not they are included in the 
water quality standards.
    (f) Designated uses are those uses specified in water quality 
standards for each water body or segment whether or not they are being 
attained.
    (g) Use attainability analysis is a structured scientific assessment 
of the factors affecting the attainment of the use which may include 
physical, chemical, biological, and economic factors as described in 
Sec. 131.10(g).
    (h) Water quality limited segment means any segment where it is 
known that water quality does not meet applicable water quality 
standards, and/or is not expected to meet applicable water quality 
standards, even after the application of the technology-bases effluent 
limitations required by sections 301(b) and 306 of the Act.
    (i) Water quality standards are provisions of State or Federal law 
which consist of a designated use or uses for the waters of the United 
States and water quality criteria for such waters based upon such uses. 
Water quality standards are to protect the public health or welfare, 
enhance the quality of water and serve the purposes of the Act.
    (j) States include: The 50 States, the District of Columbia, Guam, 
the Commonwealth of Puerto Rico, Virgin Islands, American Samoa, the 
Trust Territory of the Pacific Islands, the Commonwealth of the Northern 
Mariana Islands, and Indian Tribes that EPA determines to be eligible 
for purposes of water quality standards program.
    (k) Federal Indian Reservation, Indian Reservation, or Reservation 
means all land within the limits of any Indian reservation under the 
jurisdiction of the United States Government, notwithstanding the 
issuance of any patent, and including rights-of-way running through the 
reservation.''
    (l) Indian Tribe or Tribe means any Indian Tribe, band, group, or 
community recognized by the Secretary of the Interior and exercising 
governmental authority over a Federal Indian reservation.

[48 FR 51405, Nov. 8, 1983, as amended at 56 FR 64893, Dec. 12, 1991; 59 
FR 64344, Dec. 14, 1994]



Sec. 131.4  State authority.

    (a) States (as defined in Sec. 131.3) are responsible for 
reviewing, establishing, and revising water quality standards. As 
recognized by section 510 of the Clean Water Act, States may develop 
water quality standards more stringent than required by this regulation. 
Consistent with section 101(g) and 518(a) of the Clean Water Act, water 
quality standards shall not be construed to supersede or abrogate rights 
to quantities of water.
    (b) States (as defined in Sec. 131.3) may issue certifications 
pursuant to the requirements of Clean Water Act section 401. Revisions 
adopted by States shall be applicable for use in issuing State 
certifications consistent with the provisions of Sec. 131.21(c).
    (c) Where EPA determines that a Tribe is eligible to the same extent 
as a State for purposes of water quality standards, the Tribe likewise 
is eligible

[[Page 434]]

to the same extent as a State for purposes of certifications conducted 
under Clean Water Act section 401.

[56 FR 64893, Dec. 12, 1991, as amended at 59 FR 64344, Dec. 14, 1994]



Sec. 131.5  EPA authority.

    (a) Under section 303(c) of the Act, EPA is to review and to approve 
or disapprove State-adopted water quality standards. The review involves 
a determination of:
    (1) Whether the State has adopted water uses which are consistent 
with the requirements of the Clean Water Act;
    (2) Whether the State has adopted criteria that protect the 
designated water uses;
    (3) Whether the State has followed its legal procedures for revising 
or adopting standards;
    (4) Whether the State standards which do not include the uses 
specified in section 101(a)(2) of the Act are based upon appropriate 
technical and scientific data and analyses, and
    (5) Whether the State submission meets the requirements included in 
Sec. 131.6 of this part and, for Great Lakes States or Great Lakes 
Tribes (as defined in 40 CFR 132.2) to conform to section 118 of the 
Act, the requirements of 40 CFR part 132.
    (b) If EPA determines that the State's or Tribe's water quality 
standards are consistent with the factors listed in paragraphs (a)(1) 
through (a)(5) of this section, EPA approves the standards. EPA must 
disapprove the State's or Tribe's water quality standards and promulgate 
Federal standards under section 303(c)(4), and for Great Lakes States or 
Great Lakes Tribes under section 118(c)(2)(C) of the Act, if State or 
Tribal adopted standards are not consistent with the factors listed in 
paragraphs (a)(1) through (a)(5) of this section. EPA may also 
promulgate a new or revised standard when necessary to meet the 
requirements of the Act.
    (c) Section 401 of the Clean Water Act authorizes EPA to issue 
certifications pursuant to the requirements of section 401 in any case 
where a State or interstate agency has no authority for issuing such 
certifications.

[48 FR 51405, Nov. 8, 1983, as amended at 56 FR 64894, Dec. 12, 1991; 60 
FR 15387, Mar. 23, 1995]



Sec. 131.6  Minimum requirements for water quality standards submission.

    The following elements must be included in each State's water 
quality standards submitted to EPA for review:
    (a) Use designations consistent with the provisions of sections 
101(a)(2) and 303(c)(2) of the Act.
    (b) Methods used and analyses conducted to support water quality 
standards revisions.
    (c) Water quality criteria sufficient to protect the designated 
uses.
    (d) An antidegradation policy consistent with Sec. 131.12.
    (e) Certification by the State Attorney General or other appropriate 
legal authority within the State that the water quality standards were 
duly adopted pursuant to State law.
    (f) General information which will aid the Agency in determining the 
adequacy of the scientific basis of the standards which do not include 
the uses specified in section 101(a)(2) of the Act as well as 
information on general policies applicable to State standards which may 
affect their application and implementation.



Sec. 131.7  Dispute resolution mechanism.

    (a) Where disputes between States and Indian Tribes arise as a 
result of differing water quality standards on common bodies of water, 
the lead EPA Regional Administrator, as determined based upon OMB 
circular A-105, shall be responsible for acting in accordance with the 
provisions of this section.
    (b) The Regional Administrator shall attempt to resolve such 
disputes where:
    (1) The difference in water quality standards results in 
unreasonable consequences;
    (2) The dispute is between a State (as defined in Sec. 131.3(j) but 
exclusive of all Indian Tribes) and a Tribe which EPA has determined is 
eligible to the same extent as a State for purposes of water quality 
standards;

[[Page 435]]

    (3) A reasonable effort to resolve the dispute without EPA 
involvement has been made;
    (4) The requested relief is consistent with the provisions of the 
Clean Water Act and other relevant law;
    (5) The differing State and Tribal water quality standards have been 
adopted pursuant to State and Tribal law and approved by EPA; and
    (6) A valid written request has been submitted by either the Tribe 
or the State.
    (c) Either a State or a Tribe may request EPA to resolve any dispute 
which satisfies the criteria of paragraph (b) of this section. Written 
requests for EPA involvement should be submitted to the lead Regional 
Administrator and must include:
    (1) A concise statement of the unreasonable consequences that are 
alleged to have arisen because of differing water quality standards;
    (2) A concise description of the actions which have been taken to 
resolve the dispute without EPA involvement;
    (3) A concise indication of the water quality standards provision 
which has resulted in the alleged unreasonable consequences;
    (4) Factual data to support the alleged unreasonable consequences; 
and
    (5) A statement of the relief sought from the alleged unreasonable 
consequences.
    (d) Where, in the Regional Administrator's judgment, EPA involvement 
is appropriate based on the factors of paragraph (b) of this section, 
the Regional Administrator shall, within 30 days, notify the parties in 
writing that he/she is initiating an EPA dispute resolution action and 
solicit their written response. The Regional Administrator shall also 
make reasonable efforts to ensure that other interested individuals or 
groups have notice of this action. Such efforts shall include but not be 
limited to the following:
    (1) Written notice to responsible Tribal and State Agencies, and 
other affected Federal agencies,
    (2) Notice to the specific individual or entity that is alleging 
that an unreasonable consequence is resulting from differing standards 
having been adopted on a common body of water,
    (3) Public notice in local newspapers, radio, and television, as 
appropriate,
    (4) Publication in trade journal newsletters, and
    (5) Other means as appropriate.
    (e) If in accordance with applicable State and Tribal law an Indian 
Tribe and State have entered into an agreement that resolves the dispute 
or establishes a mechanism for resolving a dispute, EPA shall defer to 
this agreement where it is consistent with the Clean Water Act and where 
it has been approved by EPA.
    (f) EPA dispute resolution actions shall be consistent with one or a 
combination of the following options:
    (1) Mediation. The Regional Administrator may appoint a mediator to 
mediate the dispute. Mediators shall be EPA employees, employees from 
other Federal agencies, or other individuals with appropriate 
qualifications.
    (i) Where the State and Tribe agree to participate in the dispute 
resolution process, mediation with the intent to establish Tribal-State 
agreements, consistent with Clean Water Act section 518(d), shall 
normally be pursued as a first effort.
    (ii) Mediators shall act as neutral facilitators whose function is 
to encourage communication and negotiation between all parties to the 
dispute.
    (iii) Mediators may establish advisory panels, to consist in part of 
representatives from the affected parties, to study the problem and 
recommend an appropriate solution.
    (iv) The procedure and schedule for mediation of individual disputes 
shall be determined by the mediator in consultation with the parties.
    (v) If formal public hearings are held in connection with the 
actions taken under this paragraph, Agency requirements at 40 CFR 25.5 
shall be followed.
    (2) Arbitration. Where the parties to the dispute agree to 
participate in the dispute resolution process, the Regional 
Administrator may appoint an arbitrator or arbitration panel to 
arbitrate the dispute. Arbitrators and panel members shall be EPA 
employees, employees from other Federal agencies, or other individuals 
with appropriate qualifications. The Regional

[[Page 436]]

administrator shall select as arbitrators and arbitration panel members 
individuals who are agreeable to all parties, are knowledgeable 
concerning the requirements of the water quality standards program, have 
a basic understanding of the political and economic interests of Tribes 
and States involved, and are expected to fulfill the duties fairly and 
impartially.
    (i) The arbitrator or arbitration panel shall conduct one or more 
private or public meetings with the parties and actively solicit 
information pertaining to the effects of differing water quality permit 
requirements on upstream and downstream dischargers, comparative risks 
to public health and the environment, economic impacts, present and 
historical water uses, the quality of the waters subject to such 
standards, and other factors relevant to the dispute, such as whether 
proposed water quality criteria are more stringent than necessary to 
support designated uses, more stringent than natural background water 
quality or whether designated uses are reasonable given natural 
background water quality.
    (ii) Following consideration of relevant factors as defined in 
paragraph (f)(2)(i) of this section, the arbitrator or arbitration panel 
shall have the authority and responsibility to provide all parties and 
the Regional Administrator with a written recommendation for resolution 
of the dispute. Arbitration panel recommendations shall, in general, be 
reached by majority vote. However, where the parties agree to binding 
arbitration, or where required by the Regional Administrator, 
recommendations of such arbitration panels may be unanimous decisions. 
Where binding or non-binding arbitration panels cannot reach a unanimous 
recommendation after a reasonable period of time, the Regional 
Administrator may direct the panel to issue a non-binding decision by 
majority vote.
    (iii) The arbitrator or arbitration panel members may consult with 
EPA's Office of General Counsel on legal issues, but otherwise shall 
have no ex parte communications pertaining to the dispute. Federal 
employees who are arbitrators or arbitration panel members shall be 
neutral and shall not be predisposed for or against the position of any 
disputing party based on any Federal Trust responsibilities which their 
employers may have with respect to the Tribe. In addition, arbitrators 
or arbitration panel members who are Federal employees shall act 
independently from the normal hierarchy within their agency.
    (iv) The parties are not obligated to abide by the arbitrator's or 
arbitration panel's recommendation unless they voluntarily entered into 
a binding agreement to do so.
    (v) If a party to the dispute believes that the arbitrator or 
arbitration panel has recommended an action contrary to or inconsistent 
with the Clean Water Act, the party may appeal the arbitrator's 
recommendation to the Regional Administrator. The request for appeal 
must be in writing and must include a description of the statutory basis 
for altering the arbitrator's recommendation.
    (vi) The procedure and schedule for arbitration of individual 
disputes shall be determined by the arbitrator or arbitration panel in 
consultation with parties.
    (vii) If formal public hearings are held in connection with the 
actions taken under this paragraph, Agency requirements at 40 CFR 25.5 
shall be followed.
    (3) Dispute resolution default procedure. Where one or more parties 
(as defined in paragraph (g) of this section) refuse to participate in 
either the mediation or arbitration dispute resolution processes, the 
Regional Administrator may appoint a single official or panel to review 
available information pertaining to the dispute and to issue a written 
recommendation for resolving the dispute. Review officials shall be EPA 
employees, employees from other Federal agencies, or other individuals 
with appropriate qualifications. Review panels shall include appropriate 
members to be selected by the Regional Administrator in consultation 
with the participating parties. Recommendations of such review officials 
or panels shall, to the extent possible given the lack of participation 
by one or more parties, be reached in a manner identical to that for 
arbitration of

[[Page 437]]

disputes specified in paragraphs (f)(2)(i) through (f)(2)(vii) of this 
section.
    (g) Definitions. For the purposes of this section:
    (1) Dispute Resolution Mechanism means the EPA mechanism established 
pursuant to the requirements of Clean Water Act section 518(e) for 
resolving unreasonable consequences that arise as a result of differing 
water quality standards that may be set by States and Indian Tribes 
located on common bodies of water.
    (2) Parties to a State-Tribal dispute include the State and the 
Tribe and may, at the discretion of the Regional Administrator, include 
an NPDES permittee, citizen, citizen group, or other affected entity.

[56 FR 64894, Dec. 12, 1991, as amended at 59 FR 64344, Dec. 14, 1994]



Sec. 131.8  Requirements for Indian Tribes to administer a water quality 

standards program.

    (a) The Regional Administrator, as determined based on OMB Circular 
A-105, may accept and approve a tribal application for purposes of 
administering a water quality standards program if the Tribe meets the 
following criteria:
    (1) The Indian Tribe is recognized by the Secretary of the Interior 
and meets the definitions in Sec. 131.3 (k) and (l),
    (2) The Indian Tribe has a governing body carrying out substantial 
governmental duties and powers,
    (3) The water quality standards program to be administered by the 
Indian Tribe pertains to the management and protection of water 
resources which are within the borders of the Indian reservation and 
held by the Indian Tribe, within the borders of the Indian reservation 
and held by the United States in trust for Indians, within the borders 
of the Indian reservation and held by a member of the Indian Tribe if 
such property interest is subject to a trust restriction on alienation, 
or otherwise within the borders of the Indian reservation, and
    (4) The Indian Tribe is reasonably expected to be capable, in the 
Regional Administrator's judgment, of carrying out the functions of an 
effective water quality standards program in a manner consistent with 
the terms and purposes of the Act and applicable regulations.
    (b) Requests by Indian Tribes for administration of a water quality 
standards program should be submitted to the lead EPA Regional 
Administrator. The application shall include the following information:
    (1) A statement that the Tribe is recognized by the Secretary of the 
Interior.
    (2) A descriptive statement demonstrating that the Tribal governing 
body is currently carrying out substantial governmental duties and 
powers over a defined area. The statement should:
    (i) Describe the form of the Tribal government;
    (ii) Describe the types of governmental functions currently 
performed by the Tribal governing body such as, but not limited to, the 
exercise of police powers affecting (or relating to) the health, safety, 
and welfare of the affected population, taxation, and the exercise of 
the power of eminent domain; and
    (iii) Identify the source of the Tribal government's authority to 
carry out the governmental functions currently being performed.
    (3) A descriptive statement of the Indian Tribe's authority to 
regulate water quality. The statement should include:
    (i) A map or legal description of the area over which the Indian 
Tribe asserts authority to regulate surface water quality;
    (ii) A statement by the Tribe's legal counsel (or equivalent 
official) which describes the basis for the Tribes assertion of 
authority and which may include a copy of documents such as Tribal 
constitutions, by-laws, charters, executive orders, codes, ordinances, 
and/or resolutions which support the Tribe's assertion of authority; and
    (iii) An identification of the surface waters for which the Tribe 
proposes to establish water quality standards.
    (4) A narrative statement describing the capability of the Indian 
Tribe to administer an effective water quality standards program. The 
narrative statement should include:
    (i) A description of the Indian Tribe's previous management 
experience

[[Page 438]]

which may include the administration of programs and services authorized 
by the Indian Self-Determination and Education Assistance Act (25 U.S.C. 
450 et seq.), the Indian Mineral Development Act (25 U.S.C. 2101 et 
seq.), or the Indian Sanitation Facility Construction Activity Act (42 
U.S.C. 2004a);
    (ii) A list of existing environmental or public health programs 
administered by the Tribal governing body and copies of related Tribal 
laws, policies, and regulations;
    (iii) A description of the entity (or entities) which exercise the 
executive, legislative, and judicial functions of the Tribal government;
    (iv) A description of the existing, or proposed, agency of the 
Indian Tribe which will assume primary responsibility for establishing, 
reviewing, implementing and revising water quality standards;
    (v) A description of the technical and administrative capabilities 
of the staff to administer and manage an effective water quality 
standards program or a plan which proposes how the Tribe will acquire 
additional administrative and technical expertise. The plan must address 
how the Tribe will obtain the funds to acquire the administrative and 
technical expertise.
    (5) Additional documentation required by the Regional Administrator 
which, in the judgment of the Regional Administrator, is necessary to 
support a Tribal application.
    (6) Where the Tribe has previously qualified for eligibility or 
``treatment as a state'' under a Clean Water Act or Safe Drinking Water 
Act program, the Tribe need only provide the required information which 
has not been submitted in a previous application.
    (c) Procedure for processing an Indian Tribe's application.
    (1) The Regional Administrator shall process an application of an 
Indian Tribe submitted pursuant to Sec. 131.8(b) in a timely manner. He 
shall promptly notify the Indian Tribe of receipt of the application.
    (2) Within 30 days after receipt of the Indian Tribe's application 
the Regional Administrator shall provide appropriate notice. Notice 
shall:
    (i) Include information on the substance and basis of the Tribe's 
assertion of authority to regulate the quality of reservation waters; 
and
    (ii) Be provided to all appropriate governmental entities.
    (3) The Regional Administrator shall provide 30 days for comments to 
be submitted on the Tribal application. Comments shall be limited to the 
Tribe's assertion of authority.
    (4) If a Tribe's asserted authority is subject to a competing or 
conflicting claim, the Regional Administrator, after due consideration, 
and in consideration of other comments received, shall determine whether 
the Tribe has adequately demonstrated that it meets the requirements of 
Sec. 131.8(a)(3).
    (5) Where the Regional Administrator determines that a Tribe meets 
the requirements of this section, he shall promptly provide written 
notification to the Indian Tribe that the Tribe is authorized to 
administer the Water Quality Standards program.

[56 FR 64895, Dec. 12, 1991, as amended at 59 FR 64344, Dec. 14, 1994]



           Subpart B_Establishment of Water Quality Standards



Sec. 131.10  Designation of uses.

    (a) Each State must specify appropriate water uses to be achieved 
and protected. The classification of the waters of the State must take 
into consideration the use and value of water for public water supplies, 
protection and propagation of fish, shellfish and wildlife, recreation 
in and on the water, agricultural, industrial, and other purposes 
including navigation. In no case shall a State adopt waste transport or 
waste assimilation as a designated use for any waters of the United 
States.
    (b) In designating uses of a water body and the appropriate criteria 
for those uses, the State shall take into consideration the water 
quality standards of downstream waters and shall ensure that its water 
quality standards provide for the attainment and maintenance of the 
water quality standards of downstream waters.
    (c) States may adopt sub-categories of a use and set the appropriate 
criteria to reflect varying needs of such sub-categories of uses, for 
instance, to

[[Page 439]]

differentiate between cold water and warm water fisheries.
    (d) At a minimum, uses are deemed attainable if they can be achieved 
by the imposition of effluent limits required under sections 301(b) and 
306 of the Act and cost-effective and reasonable best management 
practices for nonpoint source control.
    (e) Prior to adding or removing any use, or establishing sub-
categories of a use, the State shall provide notice and an opportunity 
for a public hearing under Sec. 131.20(b) of this regulation.
    (f) States may adopt seasonal uses as an alternative to 
reclassifying a water body or segment thereof to uses requiring less 
stringent water quality criteria. If seasonal uses are adopted, water 
quality criteria should be adjusted to reflect the seasonal uses, 
however, such criteria shall not preclude the attainment and maintenance 
of a more protective use in another season.
    (g) States may remove a designated use which is not an existing use, 
as defined in Sec. 131.3, or establish sub-categories of a use if the 
State can demonstrate that attaining the designated use is not feasible 
because:
    (1) Naturally occurring pollutant concentrations prevent the 
attainment of the use; or
    (2) Natural, ephemeral, intermittent or low flow conditions or water 
levels prevent the attainment of the use, unless these conditions may be 
compensated for by the discharge of sufficient volume of effluent 
discharges without violating State water conservation requirements to 
enable uses to be met; or
    (3) Human caused conditions or sources of pollution prevent the 
attainment of the use and cannot be remedied or would cause more 
environmental damage to correct than to leave in place; or
    (4) Dams, diversions or other types of hydrologic modifications 
preclude the attainment of the use, and it is not feasible to restore 
the water body to its original condition or to operate such modification 
in a way that would result in the attainment of the use; or
    (5) Physical conditions related to the natural features of the water 
body, such as the lack of a proper substrate, cover, flow, depth, pools, 
riffles, and the like, unrelated to water quality, preclude attainment 
of aquatic life protection uses; or
    (6) Controls more stringent than those required by sections 301(b) 
and 306 of the Act would result in substantial and widespread economic 
and social impact.
    (h) States may not remove designated uses if:
    (1) They are existing uses, as defined in Sec. 131.3, unless a use 
requiring more stringent criteria is added; or
    (2) Such uses will be attained by implementing effluent limits 
required under sections 301(b) and 306 of the Act and by implementing 
cost-effective and reasonable best management practices for nonpoint 
source control.
    (i) Where existing water quality standards specify designated uses 
less than those which are presently being attained, the State shall 
revise its standards to reflect the uses actually being attained.
    (j) A State must conduct a use attainability analysis as described 
in Sec. 131.3(g) whenever:
    (1) The State designates or has designated uses that do not include 
the uses specified in section 101(a)(2) of the Act, or
    (2) The State wishes to remove a designated use that is specified in 
section 101(a)(2) of the Act or to adopt subcategories of uses specified 
in section 101(a)(2) of the Act which require less stringent criteria.
    (k) A State is not required to conduct a use attainability analysis 
under this regulation whenever designating uses which include those 
specified in section 101(a)(2) of the Act.



Sec. 131.11  Criteria.

    (a) Inclusion of pollutants: (1) States must adopt those water 
quality criteria that protect the designated use. Such criteria must be 
based on sound scientific rationale and must contain sufficient 
parameters or constituents to protect the designated use. For waters 
with multiple use designations, the criteria shall support the most 
sensitive use.
    (2) Toxic pollutants. States must review water quality data and 
information on discharges to identify specific

[[Page 440]]

water bodies where toxic pollutants may be adversely affecting water 
quality or the attainment of the designated water use or where the 
levels of toxic pollutants are at a level to warrant concern and must 
adopt criteria for such toxic pollutants applicable to the water body 
sufficient to protect the designated use. Where a State adopts narrative 
criteria for toxic pollutants to protect designated uses, the State must 
provide information identifying the method by which the State intends to 
regulate point source discharges of toxic pollutants on water quality 
limited segments based on such narrative criteria. Such information may 
be included as part of the standards or may be included in documents 
generated by the State in response to the Water Quality Planning and 
Management Regulations (40 CFR part 35).
    (b) Form of criteria: In establishing criteria, States should:
    (1) Establish numerical values based on:
    (i) 304(a) Guidance; or
    (ii) 304(a) Guidance modified to reflect site-specific conditions; 
or
    (iii) Other scientifically defensible methods;
    (2) Establish narrative criteria or criteria based upon 
biomonitoring methods where numerical criteria cannot be established or 
to supplement numerical criteria.



Sec. 131.12  Antidegradation policy.

    (a) The State shall develop and adopt a statewide antidegradation 
policy and identify the methods for implementing such policy pursuant to 
this subpart. The antidegradation policy and implementation methods 
shall, at a minimum, be consistent with the following:
    (1) Existing instream water uses and the level of water quality 
necessary to protect the existing uses shall be maintained and 
protected.
    (2) Where the quality of the waters exceed levels necessary to 
support propagation of fish, shellfish, and wildlife and recreation in 
and on the water, that quality shall be maintained and protected unless 
the State finds, after full satisfaction of the intergovernmental 
coordination and public participation provisions of the State's 
continuing planning process, that allowing lower water quality is 
necessary to accommodate important economic or social development in the 
area in which the waters are located. In allowing such degradation or 
lower water quality, the State shall assure water quality adequate to 
protect existing uses fully. Further, the State shall assure that there 
shall be achieved the highest statutory and regulatory requirements for 
all new and existing point sources and all cost-effective and reasonable 
best management practices for nonpoint source control.
    (3) Where high quality waters constitute an outstanding National 
resource, such as waters of National and State parks and wildlife 
refuges and waters of exceptional recreational or ecological 
significance, that water quality shall be maintained and protected.
    (4) In those cases where potential water quality impairment 
associated with a thermal discharge is involved, the antidegradation 
policy and implementing method shall be consistent with section 316 of 
the Act.



Sec. 131.13  General policies.

    States may, at their discretion, include in their State standards, 
policies generally affecting their application and implementation, such 
as mixing zones, low flows and variances. Such policies are subject to 
EPA review and approval.



 Subpart C_Procedures for Review and Revision of Water Quality Standards



Sec. 131.20  State review and revision of water quality standards.

    (a) State review. The State shall from time to time, but at least 
once every three years, hold public hearings for the purpose of 
reviewing applicable water quality standards and, as appropriate, 
modifying and adopting standards. Any water body segment with water 
quality standards that do not include the uses specified in section 
101(a)(2) of the Act shall be re-examined every three years to determine 
if any new information has become available. If such new information 
indicates that the uses specified in section

[[Page 441]]

101(a)(2) of the Act are attainable, the State shall revise its 
standards accordingly. Procedures States establish for identifying and 
reviewing water bodies for review should be incorporated into their 
Continuing Planning Process.
    (b) Public participation. The State shall hold a public hearing for 
the purpose of reviewing water quality standards, in accordance with 
provisions of State law, EPA's water quality management regulation (40 
CFR 130.3(b)(6)) and public participation regulation (40 CFR part 25). 
The proposed water quality standards revision and supporting analyses 
shall be made available to the public prior to the hearing.
    (c) Submittal to EPA. The State shall submit the results of the 
review, any supporting analysis for the use attainability analysis, the 
methodologies used for site-specific criteria development, any general 
policies applicable to water quality standards and any revisions of the 
standards to the Regional Administrator for review and approval, within 
30 days of the final State action to adopt and certify the revised 
standard, or if no revisions are made as a result of the review, within 
30 days of the completion of the review.



Sec. 131.21  EPA review and approval of water quality standards.

    (a) After the State submits its officially adopted revisions, the 
Regional Administrator shall either:
    (1) Notify the State within 60 days that the revisions are approved, 
or
    (2) Notify the State within 90 days that the revisions are 
disapproved. Such notification of disapproval shall specify the changes 
needed to assure compliance with the requirements of the Act and this 
regulation, and shall explain why the State standard is not in 
compliance with such requirements. Any new or revised State standard 
must be accompanied by some type of supporting analysis.
    (b) The Regional Administrator's approval or disapproval of a State 
water quality standard shall be based on the requirements of the Act as 
described in Sec. Sec. 131.5 and 131.6, and, with respect to Great 
Lakes States or Tribes (as defined in 40 CFR 132.2), 40 CFR part 132.
    (c) How do I determine which water quality standards are applicable 
for purposes of the Act? You may determine which water quality standards 
are applicable water quality standards for purposes of the Act from the 
following table:

----------------------------------------------------------------------------------------------------------------
                 If--                           Then--             Unless or until--         In which case--
----------------------------------------------------------------------------------------------------------------
(1) A State or authorized Tribe has    . . . the State or       . . . EPA has            . . . the EPA-
 adopted a water quality standard       Tribe's water quality    promulgated a more       promulgated water
 that is effective under State or       standard is the          stringent water          quality standard is
 Tribal law and has been submitted to   applicable water         quality standard for     the applicable water
 EPA before May 30, 2000 . ..           quality standard for     the State or Tribe       quality standard for
                                        purposes of the Act .    that is in effect . ..   purposes of the Act
                                        ..                                                until EPA withdraws
                                                                                          the Federal water
                                                                                          quality standard.
----------------------------------------------------------------------------------------------------------------
(2) A State or authorized Tribe        . . . once EPA approves   . . . EPA has           . . . the EPA
 adopts a water quality standard that   that water quality       promulgated a more       promulgated water
 goes into effect under State or        standard, it becomes     stringent water          quality standard is
 Tribal law on or after May 30, 2000    the applicable water     quality standard for     the applicable water
 . ..                                   quality standard for     the State or Tribe       quality standard for
                                        purposes of the Act .    that is in effect . ..   purposes of the Act
                                        ..                                                until EPA withdraws
                                                                                          the Federal water
                                                                                          quality standard.
----------------------------------------------------------------------------------------------------------------

    (d) When do I use the applicable water quality standards identified 
in paragraph (c) above? Applicable water quality standards for purposes 
of the Act are the minimum standards which must be used when the CWA and 
regulations implementing the CWA refer to water quality standards, for 
example, in identifying impaired waters and calculating TMDLs under 
section 303(d), developing NPDES permit limitations under section 
301(b)(1)(C), evaluating proposed discharges of dredged or fill material 
under section 404, and in issuing certifications under section 401 of 
the Act.
    (e) For how long does an applicable water quality standard for 
purposes of the Act remain the applicable water quality standard for 
purposes of the Act? A State

[[Page 442]]

or authorized Tribe's applicable water quality standard for purposes of 
the Act remains the applicable standard until EPA approves a change, 
deletion, or addition to that water quality standard, or until EPA 
promulgates a more stringent water quality standard.
    (f) How can I find out what the applicable standards are for 
purposes of the Act? In each Regional office, EPA maintains a docket 
system for the States and authorized Tribes in that Region, available to 
the public, identifying the applicable water quality standards for 
purposes of the Act.

[48 FR 51405, Nov. 8, 1983, as amended at 60 FR 15387, Mar. 23, 1995; 65 
FR 24653, Apr. 27, 2000]



Sec. 131.22  EPA promulgation of water quality standards.

    (a) If the State does not adopt the changes specified by the 
Regional Administrator within 90 days after notification of the Regional 
Administrator's disapproval, the Administrator shall promptly propose 
and promulgate such standard.
    (b) The Administrator may also propose and promulgate a regulation, 
applicable to one or more States, setting forth a new or revised 
standard upon determining such a standard is necessary to meet the 
requirements of the Act.
    (c) In promulgating water quality standards, the Administrator is 
subject to the same policies, procedures, analyses, and public 
participation requirements established for States in these regulations.



         Subpart D_Federally Promulgated Water Quality Standards



Sec. 131.31  Arizona.

    (a) [Reserved]
    (b) The following waters have, in addition to the uses designated by 
the State, the designated use of fish consumption as defined in R18-11-
101 (which is available from the Arizona Department of Environmental 
Quality, Water Quality Division, 3033 North Central Ave., Phoenix, AZ 
85012):

COLORADO MAIN STEM RIVER BASIN:
    Hualapai Wash
MIDDLE GILA RIVER BASIN:
    Agua Fria River (Camelback Road to Avondale WWTP)
    Galena Gulch
    Gila River (Felix Road to the Salt River)
    Queen Creek (Headwaters to the Superior WWTP)
    Queen Creek (Below Potts Canyon)
SAN PEDRO RIVER BASIN:
    Copper Creek
SANTA CRUZ RIVER BASIN:
    Agua Caliente Wash
    Nogales Wash
    Sonoita Creek (Above the town of Patagonia)
    Tanque Verde Creek
    Tinaja Wash
    Davidson Canyon
UPPER GILA RIVER BASIN
    Chase Creek

    (c) To implement the requirements of R18-11-108.A.5 with respect to 
effects of mercury on wildlife, EPA (or the State with the approval of 
EPA) shall implement a monitoring program to assess attainment of the 
water quality standard.

(Sec. 303, Federal Water Pollution Control Act, as amended, 33 U.S.C. 
1313, 86 Stat. 816 et seq., Pub. L. 92-500; Clean Water Act, Pub. L. 92-
500, as amended; 33 U.S.C. 1251 et seq.)

[41 FR 25000, June 22, 1976; 41 FR 48737, Nov. 5, 1976. Redesignated and 
amended at 42 FR 56740, Oct. 28, 1977. Further redesignated and amended 
at 48 FR 51408, Nov. 8, 1983; 61 FR 20693, May 7, 1996; 68 FR 62744, 
Nov. 6, 2003]



Sec. 131.32  Pennsylvania.

    (a) Antidegradation policy. This antidegradation policy shall be 
applicable to all waters of the United States within the Commonwealth of 
Pennsylvania, including wetlands.
    (1) Existing in-stream uses and the level of water quality necessary 
to protect the existing uses shall be maintained and protected.
    (2) Where the quality of the waters exceeds levels necessary to 
support propagation of fish, shellfish, and wildlife and recreation in 
and on the water, that quality shall be maintained and protected unless 
the Commonwealth finds, after full satisfaction of the inter-
governmental coordination and public participation provisions of the 
Commonwealth's continuing planning process, that allowing lower water

[[Page 443]]

quality is necessary to accommodate important economic or social 
development in the area in which the waters are located. In allowing 
such degradation or lower water quality, the Commonwealth shall assure 
water quality adequate to protect existing uses fully. Further, the 
Commonwealth shall assure that there shall be achieved the highest 
statutory and regulatory requirements for all new and existing point 
sources and all cost-effective and reasonable best management practices 
for nonpoint sources.
    (3) Where high quality waters are identified as constituting an 
outstanding National resource, such as waters of National and State 
parks and wildlife refuges and water of exceptional recreational and 
ecological significance, that water quality shall be maintained and 
protected.
    (b) [Reserved]

[61 FR 64822, Dec. 9, 1996]



Sec. 131.33  Idaho.

    (a) Temperature criteria for bull trout. (1) Except for those 
streams or portions of streams located in Indian country, or as may be 
modified by the Regional Administrator, EPA Region X, pursuant to 
paragraph (a)(3) of this section, a temperature criterion of 10 [deg]C, 
expressed as an average of daily maximum temperatures over a seven-day 
period, applies to the waterbodies identified in paragraph (a)(2) of 
this section during the months of June, July, August and September.
    (2) The following waters are protected for bull trout spawning and 
rearing:
    (i) BOISE-MORE BASIN: Devils Creek, East Fork Sheep Creek, Sheep 
Creek.
    (ii) BROWNLEE RESERVOIR BASIN: Crooked River, Indian Creek.
    (iii) CLEARWATER BASIN: Big Canyon Creek, Cougar Creek, Feather 
Creek, Laguna Creek, Lolo Creek, Orofino Creek, Talapus Creek, West Fork 
Potlatch River.
    (iv) COEUR D'ALENE LAKE BASIN: Cougar Creek, Fernan Creek, Kid 
Creek, Mica Creek, South Fork Mica Creek, Squaw Creek, Turner Creek.
    (v) HELLS CANYON BASIN: Dry Creek, East Fork Sheep Creek, Getta 
Creek, Granite Creek, Kurry Creek, Little Granite Creek, Sheep Creek.
    (vi) LEMHI BASIN: Adams Creek, Alder Creek, Basin Creek, Bear Valley 
Creek, Big Eightmile Creek, Big Springs Creek, Big Timber Creek, Bray 
Creek, Bull Creek, Cabin Creek, Canyon Creek, Carol Creek, Chamberlain 
Creek, Clear Creek, Climb Creek, Cooper Creek, Dairy Creek, Deer Creek, 
Deer Park Creek, East Fork Hayden Creek, Eighteenmile Creek, Falls 
Creek, Ferry Creek, Ford Creek, Geertson Creek, Grove Creek, Hawley 
Creek, Hayden Creek, Kadletz Creek, Kenney Creek, Kirtley Creek, Lake 
Creek, Lee Creek, Lemhi River (above Big Eightmile Creek), Little 
Eightmile Creek, Little Mill Creek, Little Timber Creek, Middle Fork 
Little Timber Creek, Milk Creek, Mill Creek, Mogg Creek, North Fork 
Kirtley Creek, North Fork Little Timber Creek, Paradise Creek, Patterson 
Creek, Payne Creek, Poison Creek, Prospect Creek, Rocky Creek, Short 
Creek, Squaw Creek, Squirrel Creek, Tobias Creek, Trail Creek, West Fork 
Hayden Creek, Wright Creek.
    (vii) LITTLE LOST BASIN: Badger Creek, Barney Creek, Bear Canyon, 
Bear Creek, Bell Mountain Creek, Big Creek, Bird Canyon, Black Creek, 
Buck Canyon, Bull Creek, Cedar Run Creek, Chicken Creek, Coal Creek, 
Corral Creek, Deep Creek, Dry Creek, Dry Creek Canal, Firbox Creek, 
Garfield Creek, Hawley Canyon, Hawley Creek, Horse Creek, Horse Lake 
Creek, Iron Creek, Jackson Creek, Little Lost River (above Badger 
Creek), Mahogany Creek, Main Fork Sawmill Creek, Massacre Creek, Meadow 
Creek, Mill Creek, Moffett Creek, Moonshine Creek, Quigley Creek, Red 
Rock Creek, Sands Creek, Sawmill Creek, Slide Creek, Smithie Fork, Squaw 
Creek, Summerhouse Canyon, Summit Creek, Timber Creek, Warm Creek, Wet 
Creek, Williams Creek.
    (viii) LITTLE SALMON BASIN: Bascum Canyon, Boulder Creek, Brown 
Creek, Campbell Ditch, Castle Creek, Copper Creek, Granite Fork Lake 
Fork Rapid River, Hard Creek, Hazard Creek, Lake Fork Rapid River, 
Little Salmon River (above Hazard Creek), Paradise Creek, Pony Creek, 
Rapid

[[Page 444]]

River, Squirrel Creek, Trail Creek, West Fork Rapid River.
    (ix) LOCHSA BASIN: Apgar Creek, Badger Creek, Bald Mountain Creek, 
Beaver Creek, Big Flat Creek, Big Stew Creek, Boulder Creek, Brushy 
Fork, Cabin Creek, Castle Creek, Chain Creek, Cliff Creek, Coolwater 
Creek, Cooperation Creek, Crab Creek, Crooked Fork Lochsa River, Dan 
Creek, Deadman Creek, Doe Creek, Dutch Creek, Eagle Creek, East Fork 
Papoose Creek, East Fork Split Creek, East Fork Squaw Creek, Eel Creek, 
Fern Creek, Fire Creek, Fish Creek, Fish Lake Creek, Fox Creek, Gass 
Creek, Gold Creek, Ham Creek, Handy Creek, Hard Creek, Haskell Creek, 
Heather Creek, Hellgate Creek, Holly Creek, Hopeful Creek, Hungery 
Creek, Indian Grave Creek, Jay Creek, Kerr Creek, Kube Creek, Lochsa 
River, Lone Knob Creek, Lottie Creek, Macaroni Creek, Maud Creek, Middle 
Fork Clearwater River, No-see-um Creek, North Fork Spruce Creek, North 
Fork Storm Creek, Nut Creek, Otter Slide Creek, Pack Creek, Papoose 
Creek, Parachute Creek, Pass Creek, Pedro Creek, Pell Creek, Pete King 
Creek, Placer Creek, Polar Creek, Postoffice Creek, Queen Creek, Robin 
Creek, Rock Creek, Rye Patch Creek, Sardine Creek, Shoot Creek, Shotgun 
Creek, Skookum Creek, Snowshoe Creek, South Fork Spruce Creek, South 
Fork Storm Creek, Split Creek, Sponge Creek, Spring Creek, Spruce Creek, 
Squaw Creek, Storm Creek, Tick Creek, Tomcat Creek, Tumble Creek, Twin 
Creek, Wag Creek, Walde Creek, Walton Creek, Warm Springs Creek, Weir 
Creek, Wendover Creek, West Fork Boulder Creek, West Fork Papoose Creek, 
West Fork Squaw Creek, West Fork Wendover Creek, White Sands Creek, 
Willow Creek.
    (x) LOWER CLARK FORK BASIN: Cascade Creek, East Fork, East Fork 
Creek, East Forkast Fork Creek, Gold Creek, Johnson Creek, Lightning 
Creek, Mosquito Creek, Porcupine Creek, Rattle Creek, Spring Creek, Twin 
Creek, Wellington Creek.
    (xi) LOWER KOOTENAI BASIN: Ball Creek, Boundary Creek, Brush Creek, 
Cabin Creek, Caribou Creek, Cascade Creek, Cooks Creek, Cow Creek, 
Curley Creek, Deep Creek, Grass Creek, Jim Creek, Lime Creek, Long 
Canyon Creek, Mack Creek, Mission Creek, Myrtle Creek, Peak Creek, Snow 
Creek, Trout Creek.
    (xii) LOWER MIDDLE FORK SALMON BASIN: Acorn Creek, Alpine Creek, 
Anvil Creek, Arrastra Creek, Bar Creek, Beagle Creek, Beaver Creek, 
Belvidere Creek, Big Creek, Birdseye Creek, Boulder Creek, Brush Creek, 
Buck Creek, Bull Creek, Cabin Creek, Camas Creek, Canyon Creek, Castle 
Creek, Clark Creek, Coin Creek, Corner Creek, Coxey Creek, Crooked 
Creek, Doe Creek, Duck Creek, East Fork Holy Terror Creek, Fawn Creek, 
Flume Creek, Fly Creek, Forge Creek, Furnace Creek, Garden Creek, 
Government Creek, Grouse Creek, Hammer Creek, Hand Creek, Holy Terror 
Creek, J Fell Creek, Jacobs Ladder Creek, Lewis Creek, Liberty Creek, 
Lick Creek, Lime Creek, Little Jacket Creek, Little Marble Creek, Little 
White Goat Creek, Little Woodtick Creek, Logan Creek, Lookout Creek, 
Loon Creek, Martindale Creek, Meadow Creek, Middle Fork Smith Creek, 
Monumental Creek, Moore Creek, Mulligan Creek, North Fork Smith Creek, 
Norton Creek, Placer Creek, Pole Creek, Rams Creek, Range Creek, Routson 
Creek, Rush Creek, Sawlog Creek, Sheep Creek, Sheldon Creek, Shellrock 
Creek, Ship Island Creek, Shovel Creek, Silver Creek, Smith Creek, 
Snowslide Creek, Soldier Creek, South Fork Camas Creek, South Fork 
Chamberlain Creek, South Fork Holy Terror Creek, South Fork Norton 
Creek, South Fork Rush Creek, South Fork Sheep Creek, Spider Creek, 
Spletts Creek, Telephone Creek, Trail Creek, Two Point Creek, West Fork 
Beaver Creek, West Fork Camas Creek, West Fork Monumental Creek, West 
Fork Rush Creek, White Goat Creek, Wilson Creek.
    (xiii) LOWER NORTH FORK CLEARWATER BASIN: Adair Creek, Badger Creek, 
Bathtub Creek, Beaver Creek, Black Creek, Brush Creek, Buck Creek, Butte 
Creek, Canyon Creek, Caribou Creek, Crimper Creek, Dip Creek, Dog Creek, 
Elmer Creek, Falls Creek, Fern Creek, Goat Creek, Isabella Creek, John 
Creek, Jug Creek, Jungle Creek, Lightning Creek, Little Lost Lake Creek, 
Little North Fork Clearwater River, Lost Lake Creek, Lund Creek,

[[Page 445]]

Montana Creek, Mowitch Creek, Papoose Creek, Pitchfork Creek, Rocky Run, 
Rutledge Creek, Spotted Louis Creek, Triple Creek, Twin Creek, West Fork 
Montana Creek, Willow Creek.
    (xiv) LOWER SALMON BASIN: Bear Gulch, Berg Creek, East Fork John Day 
Creek, Elkhorn Creek, Fiddle Creek, French Creek, Hurley Creek, John Day 
Creek, Kelly Creek, Klip Creek, Lake Creek, Little Slate Creek, Little 
Van Buren Creek, No Business Creek, North Creek, North Fork Slate Creek, 
North Fork White Bird Creek, Partridge Creek, Slate Creek, Slide Creek, 
South Fork John Day Creek, South Fork White Bird Creek, Warm Springs 
Creek.
    (xv) LOWER SELWAY BASIN: Anderson Creek, Bailey Creek, Browns Spring 
Creek, Buck Lake Creek, Butte Creek, Butter Creek, Cabin Creek, Cedar 
Creek, Chain Creek, Chute Creek, Dent Creek, Disgrace Creek, Double 
Creek, East Fork Meadow Creek, East Fork Moose Creek, Elbow Creek, 
Fivemile Creek, Fourmile Creek, Gate Creek, Gedney Creek, Goddard Creek, 
Horse Creek, Indian Hill Creek, Little Boulder Creek, Little Schwar 
Creek, Matteson Creek, Meadow Creek, Monument Creek, Moose Creek, Moss 
Creek, Newsome Creek, North Fork Moose Creek, Rhoda Creek, Saddle Creek, 
Schwar Creek, Shake Creek, Spook Creek, Spur Creek, Tamarack Creek, West 
Fork Anderson Creek, West Fork Gedney Creek, West Moose Creek, Wounded 
Doe Creek.
    (xvi) MIDDLE FORK CLEARWATER BASIN: Baldy Creek, Big Cedar Creek, 
Browns Spring Creek, Clear Creek, Middle Fork Clear Creek, Pine Knob 
Creek, South Fork Clear Creek.
    (xvii) MIDDLE FORK PAYETTE BASIN: Bull Creek, Middle Fork Payette 
River (above Fool Creek), Oxtail Creek, Silver Creek, Sixteen-to-one 
Creek.
    (xviii) MIDDLE SALMON-CHAMBERLAIN BASIN: Arrow Creek, Bargamin 
Creek, Bat Creek, Bay Creek, Bear Creek, Bend Creek, Big Elkhorn Creek, 
Big Harrington Creek, Big Mallard Creek, Big Squaw Creek, Bleak Creek, 
Bronco Creek, Broomtail Creek, Brown Creek, Cayuse Creek, Center Creek, 
Chamberlain Creek, Cliff Creek, Colt Creek, Corn Creek, Crooked Creek, 
Deer Creek, Dennis Creek, Disappointment Creek, Dismal Creek, Dog Creek, 
East Fork Fall Creek, East Fork Horse Creek, East Fork Noble Creek, Fall 
Creek, Filly Creek, Fish Creek, Flossie Creek, Game Creek, Gap Creek, 
Ginger Creek, Green Creek, Grouse Creek, Guard Creek, Hamilton Creek, 
Horse Creek, Hot Springs Creek, Hotzel Creek, Hungry Creek, Iodine 
Creek, Jack Creek, Jersey Creek, Kitchen Creek, Lake Creek, Little Horse 
Creek, Little Lodgepole Creek, Little Mallard Creek, Lodgepole Creek, 
Mayflower Creek, McCalla Creek, Meadow Creek, Moose Creek, Moose Jaw 
Creek, Mule Creek, Mustang Creek, No Name Creek, Owl Creek, Poet Creek, 
Pole Creek, Porcupine Creek, Prospector Creek, Pup Creek, Queen Creek, 
Rainey Creek, Ranch Creek, Rattlesnake Creek, Red Top Creek, Reynolds 
Creek, Rim Creek, Ring Creek, Rock Creek, Root Creek, Runaway Creek, 
Sabe Creek, Saddle Creek, Salt Creek, Schissler Creek, Sheep Creek, 
Short Creek, Shovel Creek, Skull Creek, Slaughter Creek, Slide Creek, 
South Fork Cottonwood Creek, South Fork Chamberlain Creek, South Fork 
Kitchen Creek, South Fork Salmon River, Spread Creek, Spring Creek, 
Starvation Creek, Steamboat Creek, Steep Creek, Stud Creek, Warren 
Creek, Webfoot Creek, West Fork Chamberlain Creek, West Fork Rattlesnake 
Creek, West Horse Creek, Whimstick Creek, Wind River, Woods Fork Horse 
Creek.
    (xix) MIDDLE SALMON-PANTHER BASIN: Allen Creek, Arnett Creek, Beaver 
Creek, Big Deer Creek, Blackbird Creek, Boulder Creek, Cabin Creek, Camp 
Creek, Carmen Creek, Clear Creek, Colson Creek, Copper Creek, Corral 
Creek, Cougar Creek, Cow Creek, Deadhorse Creek, Deep Creek, East 
Boulder Creek, Elkhorn Creek, Fawn Creek, Fourth Of July Creek, Freeman 
Creek, Homet Creek, Hughes Creek, Hull Creek, Indian Creek, Iron Creek, 
Jackass Creek, Jefferson Creek, Jesse Creek, Lake Creek, Little Deep 
Creek, Little Hat Creek, Little Sheep Creek, McConn Creek, McKim Creek, 
Mink Creek, Moccasin Creek, Moose Creek, Moyer Creek, Musgrove Creek, 
Napias Creek, North Fork Hughes Creek, North Fork Iron

[[Page 446]]

Creek, North Fork Salmon River, North Fork Williams Creek, Opal Creek, 
Otter Creek, Owl Creek, Panther Creek, Park Creek, Phelan Creek, Pine 
Creek, Pony Creek, Porphyry Creek, Pruvan Creek, Rabbit Creek, Rancherio 
Creek, Rapps Creek, Salt Creek, Salzer Creek, Saw Pit Creek, Sharkey 
Creek, Sheep Creek, South Fork Cabin Creek, South Fork Iron Creek, South 
Fork Moyer Creek, South Fork Phelan Creek, South Fork Sheep Creek, South 
Fork Williams Creek, Spring Creek, Squaw Creek, Trail Creek, Twelvemile 
Creek, Twin Creek, Weasel Creek, West Fork Blackbird Creek, West Fork 
Iron Creek, Williams Creek, Woodtick Creek.
    (xx) MOYIE BASIN: Brass Creek, Bussard Creek, Copper Creek, Deer 
Creek, Faro Creek, Keno Creek, Kreist Creek, Line Creek, McDougal Creek, 
Mill Creek, Moyie River (above Skin Creek), Placer Creek, Rutledge 
Creek, Skin Creek, Spruce Creek, West Branch Deer Creek.
    (xxi) NORTH AND MIDDLE FORK BOISE BASIN: Abby Creek, Arrastra Creek, 
Bald Mountain Creek, Ballentyne Creek, Banner Creek, Bayhouse Creek, 
Bear Creek, Bear River, Big Gulch, Big Silver Creek, Billy Creek, 
Blackwarrior Creek, Bow Creek, Browns Creek, Buck Creek, Cabin Creek, 
Cahhah Creek, Camp Gulch, China Fork, Coma Creek, Corbus Creek, Cow 
Creek, Crooked River, Cub Creek, Decker Creek, Dutch Creek, Dutch Frank 
Creek, East Fork Roaring River, East Fork Swanholm Creek, East Fork Yuba 
River, Flint Creek, Flytrip Creek, Gotch Creek, Graham Creek, Granite 
Creek, Grays Creek, Greylock Creek, Grouse Creek, Hot Creek, Hungarian 
Creek, Joe Daley Creek, Johnson Creek, Kid Creek, King Creek, La Mayne 
Creek, Leggit Creek, Lightening Creek, Little Queens River, Little 
Silver Creek, Louise Creek, Lynx Creek, Mattingly Creek, McKay Creek, 
McLeod Creek, McPhearson Creek, Middle Fork Boise River (above Roaring 
River), Middle Fork Corbus Creek, Middle Fork Roaring River, Mill Creek, 
Misfire Creek, Montezuma Creek, North Fork Boise River (above Bear 
River), Phifer Creek, Pikes Fork, Quartz Gulch, Queens River, Rabbit 
Creek, Right Creek, Roaring River, Robin Creek, Rock Creek, Rockey 
Creek, Sawmill Creek, Scenic Creek, Scotch Creek, Scott Creek, Shorip 
Creek, Smith Creek, Snow Creek, Snowslide Creek, South Fork Corbus 
Creek, South Fork Cub Creek, Spout Creek, Steamboat Creek, Steel Creek, 
Steppe Creek, Swanholm Creek, Timpa Creek, Trail Creek, Trapper Creek, 
Tripod Creek, West Fork Creek, West Warrior Creek, Willow Creek, Yuba 
River.
    (xxii) NORTH FORK PAYETTE BASIN: Gold Fork River, North Fork Gold 
Fork River, Pearsol Creek.
    (xxiii) AHSIMEROI BASIN: Baby Creek, Bear Creek, Big Creek, Big 
Gulch, Burnt Creek, Christian Gulch, Dead Cat Canyon, Ditch Creek, 
Donkey Creek, Doublespring Creek, Dry Canyon, Dry Gulch, East Fork Burnt 
Creek, East Fork Morgan Creek, East Fork Pahsimeroi River, East Fork 
Patterson Creek, Elkhorn Creek, Falls Creek, Goldberg Creek, Hillside 
Creek, Inyo Creek, Long Creek, Mahogany Creek, Mill Creek, Morgan Creek, 
Morse Creek, Mulkey Gulch, North Fork Big Creek, North Fork Morgan 
Creek, Pahsimeroi River (above Big Creek), Patterson Creek, Rock Spring 
Canyon, Short Creek, Snowslide Creek, South Fork Big Creek, Spring 
Gulch, Squaw Creek, Stinking Creek, Tater Creek, West Fork Burnt Creek, 
West Fork North Fork Big Creek.
    (xxiv) PAYETTE BASIN: Squaw Creek, Third Fork Squaw Creek.
    (xxv) PEND OREILLE LAKE BASIN: Branch North Gold Creek, Cheer Creek, 
Chloride Gulch, Dry Gulch, Dyree Creek, Flume Creek, Gold Creek, Granite 
Creek, Grouse Creek, Kick Bush Gulch, North Fork Grouse Creek, North 
Gold Creek, Plank Creek, Rapid Lightning Creek, South Fork Grouse Creek, 
Strong Creek, Thor Creek, Trestle Creek, West Branch Pack River, West 
Gold Creek, Wylie Creek, Zuni Creek.
    (xxvi) PRIEST BASIN: Abandon Creek, Athol Creek, Bath Creek, Bear 
Creek, Bench Creek, Blacktail Creek, Bog Creek, Boulder Creek, Bugle 
Creek, Canyon Creek, Caribou Creek, Cedar Creek, Chicopee Creek, Deadman 
Creek, East Fork Trapper Creek, East River, Fedar Creek, Floss Creek, 
Gold Creek, Granite Creek, Horton Creek, Hughes Fork, Indian Creek, 
Jackson

[[Page 447]]

Creek, Jost Creek, Kalispell Creek, Kent Creek, Keokee Creek, Lime 
Creek, Lion Creek, Lost Creek, Lucky Creek, Malcom Creek, Middle Fork 
East River, Muskegon Creek, North Fork Granite Creek, North Fork Indian 
Creek, Packer Creek, Rock Creek, Ruby Creek, South Fork Granite Creek, 
South Fork Indian Creek, South Fork Lion Creek, Squaw Creek, Tango 
Creek, Tarlac Creek, The Thorofare, Trapper Creek, Two Mouth Creek, 
Uleda Creek, Priest R. (above Priest Lake), Zero Creek.
    (xxvii) SOUTH FORK BOISE BASIN: Badger Creek, Bear Creek, Bear 
Gulch, Big Smoky Creek, Big Water Gulch, Boardman Creek, Burnt Log 
Creek, Cayuse Creek, Corral Creek, Cow Creek, Edna Creek, Elk Creek, 
Emma Creek, Feather River, Fern Gulch, Grape Creek, Gunsight Creek, 
Haypress Creek, Heather Creek, Helen Creek, Johnson Creek, Lincoln 
Creek, Little Cayuse Creek, Little Rattlesnake Creek, Little Skeleton 
Creek, Little Smoky Creek, Loggy Creek, Mule Creek, North Fork Ross 
Fork, Pinto Creek, Rattlesnake Creek, Ross Fork, Russel Gulch, Salt 
Creek, Shake Creek, Skeleton Creek, Slater Creek, Smokey Dome Canyon, 
South Fork Ross Fork, Three Forks Creek, Tipton Creek, Vienna Creek, 
Weeks Gulch, West Fork Big Smoky Creek, West Fork Salt Creek, West Fork 
Skeleton Creek, Willow Creek.
    (xxviii) SOUTH FORK CLEARWATER BASIN: American River, Baker Gulch, 
Baldy Creek, Bear Creek, Beaver Creek, Big Canyon Creek, Big Elk Creek, 
Blanco Creek, Boundary Creek, Box Sing Creek, Boyer Creek, Cartwright 
Creek, Cole Creek, Crooked River, Dawson Creek, Deer Creek, Ditch Creek, 
East Fork American River, East Fork Crooked River, Elk Creek, Fivemile 
Creek, Flint Creek, Fourmile Creek, Fox Creek, French Gulch, Galena 
Creek, Gospel Creek, Hagen Creek, Hays Creek, Johns Creek, Jungle Creek, 
Kirks Fork American River, Little Elk Creek, Little Moose Creek, Little 
Siegel Creek, Loon Creek, Mackey Creek, Meadow Creek, Melton Creek, 
Middle Fork Red River, Mill Creek, Monroe Creek, Moores Creek, Moores 
Lake Creek, Moose Butte Creek, Morgan Creek, Mule Creek, Newsome Creek, 
Nuggett Creek, Otterson Creek, Pat Brennan Creek, Pilot Creek, Quartz 
Creek, Queen Creek, Rabbit Creek, Rainbow Gulch, Red River, Relief 
Creek, Ryan Creek, Sally Ann Creek, Sawmill Creek, Schooner Creek, 
Schwartz Creek, Sharmon Creek, Siegel Creek, Silver Creek, Sixmile 
Creek, Sixtysix Creek, Snoose Creek, Sourdough Creek, South Fork Red 
River, Square Mountain Creek, Swale Creek, Swift Creek, Taylor Creek, 
Tenmile Creek, Trail Creek, Trapper Creek, Trout Creek, Twentymile 
Creek, Twin Lakes Creek, Umatilla Creek, West Fork Big Elk Creek, West 
Fork Crooked River, West Fork Gospel Creek, West Fork Newsome Creek, 
West Fork Red River, West Fork Twentymile Creek, Whiskey Creek, Whitaker 
Creek, Williams Creek.
    (xxix) SOUTH FORK PAYETTE BASIN: Archie Creek, Ash Creek, Baron 
Creek, Basin Creek, Bear Creek, Beaver Creek, Big Spruce Creek, Bitter 
Creek, Blacks Creek, Blue Jay Creek, Burn Creek, Bush Creek, Camp Creek, 
Canyon Creek, Casner Creek, Cat Creek, Chapman Creek, Charters Creek, 
Clear Creek, Coski Creek, Cup Creek, Dead Man Creek, Deadwood River, 
Deer Creek, East Fork Deadwood Creek, East Fork Warm Springs Creek, Eby 
Creek, Elkhorn Creek, Emma Creek, Fall Creek, Fence Creek, Fern Creek, 
Fivemile Creek, Fox Creek, Garney Creek, Gates Creek, Goat Creek, 
Grandjem Creek, Grouse Creek, Habit Creek, Helende Creek, Horse Creek, 
Huckleberry Creek, Jackson Creek, Kettle Creek, Kirkham Creek, Lake 
Creek, Lick Creek, Little Tenmile Creek, Logging Gulch, Long Creek, 
MacDonald Creek, Meadow Creek, Middle Fork Warm Springs Creek, Miller 
Creek, Monument Creek, Moulding Creek, Ninemile Creek, No Man Creek, No 
Name Creek, North Fork Baron Creek, North Fork Canyon Creek, North Fork 
Deer Creek, North Fork Whitehawk Creek, O'Keefe Creek, Packsaddle Creek, 
Park Creek, Pass Creek, Pinchot Creek, Pine Creek, Pitchfork Creek, Pole 
Creek, Richards Creek, Road Fork Rock Creek, Rock Creek, Rough Creek, 
Scott Creek, Silver Creek, Sixmile Creek, Smith Creek, Smokey Creek, 
South Fork Beaver

[[Page 448]]

Creek, South Fork Canyon Creek, South Fork Clear Creek, South Fork 
Payette River (above Rock Creek), South Fork Scott Creek, South Fork 
Warm Spring Creek, Spring Creek, Steep Creek, Stratton Creek, Topnotch 
Creek, Trail Creek, Wapiti Creek, Warm Spring Creek, Warm Springs Creek, 
Whangdoodle Creek, Whitehawk Creek, Wild Buck Creek, Wills Gulch, Wilson 
Creek, Wolf Creek.
    (xxx) SOUTH FORK SALMON BASIN: Alez Creek, Back Creek, Bear Creek, 
Bishop Creek, Blackmare Creek, Blue Lake Creek, Buck Creek, Buckhorn Bar 
Creek, Buckhorn Creek, Burgdorf Creek, Burntlog Creek, Cabin Creek, Calf 
Creek, Camp Creek, Cane Creek, Caton Creek, Cinnabar Creek, Cliff Creek, 
Cly Creek, Cougar Creek, Cow Creek, Cox Creek, Curtis Creek, Deep Creek, 
Dollar Creek, Dutch Creek, East Fork South Fork Salmon River, East Fork 
Zena Creek, Elk Creek, Enos Creek, Falls Creek, Fernan Creek, Fiddle 
Creek, Fitsum Creek, Flat Creek, Fourmile Creek, Goat Creek, Grimmet 
Creek, Grouse Creek, Halfway Creek, Hanson Creek, Hays Creek, Holdover 
Creek, Hum Creek, Indian Creek, Jeanette Creek, Johnson Creek, Josephine 
Creek, Jungle Creek, Knee Creek, Krassel Creek, Lake Creek, Landmark 
Creek, Lick Creek, Little Buckhorn Creek, Little Indian Creek, Lodgepole 
Creek, Loon Creek, Maverick Creek, Meadow Creek, Middle Fork Elk Creek, 
Missouri Creek, Moose Creek, Mormon Creek, Nasty Creek, Nethker Creek, 
Nick Creek, No Mans Creek, North Fork Bear Creek, North Fork Buckhorn 
Creek, North Fork Camp Creek, North Fork Dollar Creek, North Fork Fitsum 
Creek, North Fork Lake Fork, North Fork Lick Creek, North Fork Riordan 
Creek, North Fork Six-bit Creek, Oompaul Creek, Paradise Creek, Park 
Creek, Peanut Creek, Pepper Creek, Phoebe Creek, Piah Creek, Pid Creek, 
Pilot Creek, Pony Creek, Porcupine Creek, Porphyry Creek, Prince Creek, 
Profile Creek, Quartz Creek, Reeves Creek, Rice Creek, Riordan Creek, 
Roaring Creek, Ruby Creek, Rustican Creek, Ryan Creek, Salt Creek, Sand 
Creek, Secesh River, Sheep Creek, Silver Creek, Sister Creek, Six-Bit 
Creek, South Fork Bear Creek, South Fork Blackmare Creek, South Fork 
Buckhorn Creek, South Fork Cougar Creek, South Fork Elk Creek, South 
Fork Fitsum Creek, South Fork Fourmile Creek, South Fork Salmon River, 
South Fork Threemile Creek, Split Creek, Steep Creek, Sugar Creek, 
Summit Creek, Tamarack Creek, Teepee Creek, Threemile Creek, Trail 
Creek, Trapper Creek, Trout Creek, Tsum Creek, Two-bit Creek, Tyndall 
Creek, Vein Creek, Victor Creek, Wardenhoff Creek, Warm Lake Creek, Warm 
Spring Creek, West Fork Buckhorn Creek, West Fork Elk Creek, West Fork 
Enos Creek, West Fork Zena Creek, Whangdoodle Creek, Willow Basket 
Creek, Willow Creek, Zena Creek.
    (xxxi) ST. JOE R. BASIN: Bad Bear Creek, Bean Creek, Bear Creek, 
Beaver Creek, Bedrock Creek, Berge Creek, Bird Creek, Blue Grouse Creek, 
Boulder Creek, Broadaxe Creek, Bruin Creek, California Creek, Cherry 
Creek, Clear Creek, Color Creek, Copper Creek, Dolly Creek, Dump Creek, 
Eagle Creek, East Fork Bluff Creek, East Fork Gold Creek, Emerald Creek, 
Fishhook Creek, Float Creek, Fly Creek, Fuzzy Creek, Gold Creek, Heller 
Creek, Indian Creek, Kelley Creek, Malin Creek, Marble Creek, Medicine 
Creek, Mica Creek, Mill Creek, Mosquito Creek, North Fork Bean Creek, 
North Fork Saint Joe River, North Fork Simmons Creek, Nugget Creek, 
Packsaddle Creek, Periwinkle Creek, Prospector Creek, Quartz Creek, Red 
Cross Creek, Red Ives Creek, Ruby Creek, Saint Joe River (above Siwash 
Creek), Setzer Creek, Sherlock Creek, Simmons Creek, Siwash Creek, 
Skookum Creek, Thomas Creek, Thorn Creek, Three Lakes Creek, Timber 
Creek, Tinear Creek, Trout Creek, Tumbledown Creek, Wahoo Creek, Washout 
Creek, Wilson Creek, Yankee Bar Creek.
    (xxxii) UPPER COEUR D'ALENE BASIN: Brown Creek, Falls Creek, Graham 
Creek.
    (xxxiii) UPPER KOOTENAI BASIN: Halverson Cr, North Callahan Creek, 
South Callahan Creek, West Fork Keeler Creek
    (xxxiv) UPPER MIDDLE FORK SALMON BASIN: Asher Creek, Automatic 
Creek, Ayers Creek, Baldwin Creek, Banner Creek, Bear Creek, Bear Valley 
Creek, Bearskin Creek, Beaver

[[Page 449]]

Creek, Bernard Creek, Big Chief Creek, Big Cottonwood Creek, Birch 
Creek, Blue Lake Creek, Blue Moon Creek, Boundary Creek, Bridge Creek, 
Browning Creek, Buck Creek, Burn Creek, Cabin Creek, Cache Creek, Camp 
Creek, Canyon Creek, Cap Creek, Cape Horn Creek, Casner Creek, Castle 
Fork, Casto Creek, Cat Creek, Chokebore Creek, Chuck Creek, Cliff Creek, 
Cold Creek, Collie Creek, Colt Creek, Cook Creek, Corley Creek, Cornish 
Creek, Cottonwood Creek, Cougar Creek, Crystal Creek, Cub Creek, Cultus 
Creek, Dagger Creek, Deer Creek, Deer Horn Creek, Doe Creek, Dry Creek, 
Duffield Creek, Dynamite Creek, Eagle Creek, East Fork Elk Creek, East 
Fork Indian Creek, East Fork Mayfield Creek, Elk Creek, Elkhorn Creek, 
Endoah Creek, Fall Creek, Fawn Creek, Feltham Creek, Fir Creek, Flat 
Creek, Float Creek, Foresight Creek, Forty-five Creek, Forty-four Creek, 
Fox Creek, Full Moon Creek, Fuse Creek, Grays Creek, Grenade Creek, 
Grouse Creek, Gun Creek, Half Moon Creek, Hogback Creek, Honeymoon 
Creek, Hot Creek, Ibex Creek, Indian Creek, Jose Creek, Kelly Creek, 
Kerr Creek, Knapp Creek, Kwiskwis Creek, Lime Creek, Lincoln Creek, 
Little Beaver Creek, Little Cottonwood Creek, Little East Fork Elk 
Creek, Little Indian Creek, Little Loon Creek, Little Pistol Creek, Lola 
Creek, Loon Creek, Lucinda Creek, Lucky Creek, Luger Creek, Mace Creek, 
Mack Creek, Marble Creek, Marlin Creek, Marsh Creek, Mayfield Creek, 
McHoney Creek, McKee Creek, Merino Creek, Middle Fork Elkhorn Creek, 
Middle Fork Indian Creek, Middle Fork Salmon River (above Soldier 
Creek), Mine Creek, Mink Creek, Moonshine Creek, Mowitch Creek, Muskeg 
Creek, Mystery Creek, Nelson Creek, New Creek, No Name Creek, North Fork 
Elk Creek, North Fork Elkhorn Creek, North Fork Sheep Creek, North Fork 
Sulphur Creek, Papoose Creek, Parker Creek, Patrol Creek, Phillips 
Creek, Pierson Creek, Pinyon Creek, Pioneer Creek, Pistol Creek, Placer 
Creek, Poker Creek, Pole Creek, Popgun Creek, Porter Creek, Prospect 
Creek, Rabbit Creek, Rams Horn Creek, Range Creek, Rapid River, Rat 
Creek, Remington Creek, Rock Creek, Rush Creek, Sack Creek, Safety 
Creek, Salt Creek, Savage Creek, Scratch Creek, Seafoam Creek, Shady 
Creek, Shake Creek, Sheep Creek, Sheep Trail Creek, Shell Creek, 
Shrapnel Creek, Siah Creek, Silver Creek, Slide Creek, Snowshoe Creek, 
Soldier Creek, South Fork Cottonwood Creek, South Fork Sheep Creek, 
Spike Creek, Springfield Creek, Squaw Creek, Sulphur Creek, Sunnyside 
Creek, Swamp Creek, Tennessee Creek, Thatcher Creek, Thicket Creek, 
Thirty-two Creek, Tomahawk Creek, Trail Creek, Trapper Creek, Trigger 
Creek, Twenty-two Creek, Vader Creek, Vanity Creek, Velvet Creek, Walker 
Creek, Wampum Creek, Warm Spring Creek, West Fork Elk Creek, West Fork 
Little Loon Creek, West Fork Mayfield Creek, White Creek, Wickiup Creek, 
Winchester Creek, Winnemucca Creek, Wyoming Creek.
    (xxxv) UPPER NORTH FORK CLEARWATER BASIN: Adams Creek, Avalanche 
Creek, Bacon Creek, Ball Creek, Barn Creek, Barnard Creek, Barren Creek, 
Bear Creek, Beaver Dam Creek, Bedrock Creek, Bill Creek, Bostonian 
Creek, Boundary Creek, Burn Creek, Butter Creek, Camp George Creek, 
Canyon Creek, Cayuse Creek, Chamberlain Creek, Clayton Creek, Cliff 
Creek, Coffee Creek, Cold Springs Creek, Collins Creek, Colt Creek, Cool 
Creek, Copper Creek, Corral Creek, Cougar Creek, Craig Creek, Crater 
Creek, Cub Creek, Davis Creek, Deadwood Creek, Deer Creek, Dill Creek, 
Drift Creek, Elizabeth Creek, Fall Creek, Fire Creek, Fix Creek, Flame 
Creek, Fly Creek, Fourth of July Creek, Fro Creek, Frog Creek, Frost 
Creek, Gilfillian Creek, Goose Creek, Grass Creek, Gravey Creek, Grizzly 
Creek, Hanson Creek, Heather Creek, Henry Creek, Hidden Creek, Howard 
Creek, Independence Creek, Jam Creek, Japanese Creek, Johnagan Creek, 
Johnny Creek, Junction Creek, Kelly Creek, Kid Lake Creek, Kodiak Creek, 
Lake Creek, Laundry Creek, Lightning Creek, Little Moose Creek, Little 
Weitas Creek, Liz Creek, Long Creek, Marten Creek, Meadow Creek, Middle 
Creek, Middle North Fork Kelly Creek, Mill Creek, Mire Creek, Monroe 
Creek, Moose Creek, Negro Creek, Nettle Creek, Niagra Gulch, North Fork 
Clearwater River (Fourth of July Creek), Nub Creek, Osier Creek, Perry

[[Page 450]]

Creek, Pete Ott Creek, Placer Creek, Polar Creek, Post Creek, Potato 
Creek, Quartz Creek, Rapid Creek, Rawhide Creek, Roaring Creek, Rock 
Creek, Rocky Ridge Creek, Ruby Creek, Saddle Creek, Salix Creek, Scurry 
Creek, Seat Creek, Short Creek, Shot Creek, Siam Creek, Silver Creek, 
Skull Creek, Slide Creek, Smith Creek, Snow Creek, South Fork Kelly 
Creek, Spud Creek, Spy Creek, Stolen Creek, Stove Creek, Sugar Creek, 
Swamp Creek, Tinear Creek, Tinkle Creek, Toboggan Creek, Trail Creek, 
Vanderbilt Gulch, Wall Creek, Weitas Creek, Williams Creek, Windy Creek, 
Wolf Creek, Young Creek.
    (xxxvi) UPPER SALMON BASIN: Alder Creek, Alpine Creek, Alta Creek, 
Alturas Lake Creek, Anderson Creek, Aspen Creek, Basin Creek, Bayhorse 
Creek, Bear Creek, Beaver Creek, Big Boulder Creek, Block Creek, Blowfly 
Creek, Blue Creek, Boundary Creek, Bowery Creek, Broken Ridge Creek, 
Bruno Creek, Buckskin Creek, Cabin Creek, Camp Creek, Cash Creek, 
Challis Creek, Chamberlain Creek, Champion Creek, Cherry Creek, Cinnabar 
Creek, Cleveland Creek, Coal Creek, Crooked Creek, Darling Creek, 
Deadwood Creek, Decker Creek, Deer Creek, Dry Creek, Duffy Creek, East 
Basin Creek, East Fork Salmon River, East Fork Valley Creek, East Pass 
Creek, Eddy Creek, Eightmile Creek, Elevenmile Creek, Elk Creek, Ellis 
Creek, Estes Creek, First Creek, Fisher Creek, Fishhook Creek, Fivemile 
Creek, Fourth of July Creek, Frenchman Creek, Garden Creek, Germania 
Creek, Goat Creek, Gold Creek, Gooseberry Creek, Greylock Creek, Hay 
Creek, Hell Roaring Creek, Herd Creek, Huckleberry Creek, Iron Creek, 
Job Creek, Jordan Creek, Juliette Creek, Kelly Creek, Kinnikinic Creek, 
Lick Creek, Lightning Creek, Little Basin Creek, Little Beaver Creek, 
Little Boulder Creek, Little West Fork Morgan Creek, Lodgepole Creek, 
Lone Pine Creek, Lost Creek, MacRae Creek, Martin Creek, McKay Creek, 
Meadow Creek, Mill Creek, Morgan Creek, Muley Creek, Ninemile Creek, 
Noho Creek, Pack Creek, Park Creek, Pat Hughes Creek, Pig Creek, Pole 
Creek, Pork Creek, Prospect Creek, Rainbow Creek, Redfish Lake Creek, 
Road Creek, Rough Creek, Sage Creek, Sagebrush Creek, Salmon River 
(Redfish Lake Creek), Sawmill Creek, Second Creek, Sevenmile Creek, 
Sheep Creek, Short Creek, Sixmile Creek, Slate Creek, Smiley Creek, 
South Fork East Fork Salmon River, Squaw Creek, Stanley Creek, Stephens 
Creek, Summit Creek, Sunday Creek, Swimm Creek, Taylor Creek, Tenmile 
Creek, Tennel Creek, Thompson Creek, Three Cabins Creek, Trail Creek, 
Trap Creek, Trealor Creek, Twelvemile Creek, Twin Creek, Valley Creek, 
Van Horn Creek, Vat Creek, Warm Spring Creek, Warm Springs Creek, 
Washington Creek, West Beaver Creek, West Fork Creek, West Fork East 
Fork Salmon River, West Fork Herd Creek, West Fork Morgan Creek, West 
Fork Yankee Fork, West Pass Creek, Wickiup Creek, Williams Creek, Willow 
Creek, Yankee Fork.
    (xxxvii) UPPER SELWAY BASIN: Basin Creek, Bear Creek, Burn Creek, 
Camp Creek, Canyon Creek, Cliff Creek, Comb Creek, Cooper Creek, Cub 
Creek, Deep Creek, Eagle Creek, Elk Creek, Fall Creek, Fox Creek, Goat 
Creek, Gold Pan Creek, Granite Creek, Grass Gulch, Haystack Creek, Hells 
Half Acre Creek, Indian Creek, Kim Creek, Lake Creek, Langdon Gulch, 
Little Clearwater River, Lodge Creek, Lunch Creek, Mist Creek, Paloma 
Creek, Paradise Creek, Peach Creek, Pettibone Creek, Running Creek, 
Saddle Gulch, Schofield Creek, Selway River (above Pettibone Creek), 
South Fork Running Creek, South Fork Saddle Gulch, South Fork Surprise 
Creek, Spruce Creek, Squaw Creek, Stripe Creek, Surprise Creek, Set 
Creek, Tepee Creek, Thirteen Creek, Three Lakes Creek, Triple Creek, 
Wahoo Creek, White Cap Creek, Wilkerson Creek, Witter Creek.
    (xxxviii) WEISER BASIN: Anderson Creek, Bull Corral Creek, Dewey 
Creek, East Fork Weiser River, Little Weiser River, above Anderson 
Creek, Sheep Creek, Wolf Creek.
    (3) Procedures for site specific modification of listed waterbodies 
or temperature criteria for bull trout.
    (i) The Regional Administrator may, in his discretion, determine 
that the temperature criteria in paragraph (a)(1) of this section shall 
not apply to a specific waterbody or portion thereof

[[Page 451]]

listed in paragraph (a)(2) of this section. Any such determination shall 
be made consistent with Sec. 131.11 and shall be based on a finding 
that bull trout spawning and rearing is not an existing use in such 
waterbody or portion thereof.
    (ii) The Regional Administrator may, in his discretion, raise the 
temperature criteria in paragraph (a)(1) of this section as they pertain 
to a specific waterbody or portion thereof listed in paragraph (a)(2) of 
this section. Any such determination shall be made consistent with Sec. 
131.11, and shall be based on a finding that bull trout would be fully 
supported at the higher temperature criteria.
    (iii) For any determination made under paragraphs (a)(3)(i) or 
(a)(3)(ii) of this section, the Regional Administrator shall, prior to 
making such a determination, provide for public notice of and comment on 
a proposed determination. For any such proposed determination, the 
Regional Administrator shall prepare and make available to the public a 
technical support document addressing each waterbody or portion thereof 
that would be deleted or modified and the justification for each 
proposed determination. This document shall be made available to the 
public not later than the date of public notice.
    (iv) The Regional Administrator shall maintain and make available to 
the public an updated list of determinations made pursuant to paragraphs 
(a)(3)(i) and (a)(3)(ii) of this section as well as the technical 
support documents for each determination.
    (v) Nothing in this paragraph (a)(3) shall limit the Administrator's 
authority to modify the temperature criteria in paragraph (a)(1) of this 
section or the list of waterbodies in paragraph (a)(2) of this section 
through rulemaking.
    (b) [Reserved]
    (c) Excluded waters. Lakes, ponds, pools, streams, and springs 
outside public lands but located wholly and entirely upon a person's 
land are not protected specifically or generally for any beneficial use, 
unless such waters are designated in Idaho 16.01.02.110. through 160., 
or, although not so designated, are waters of the United States as 
defined at 40 CFR 122.2.

[62 FR 41183, July 31, 1997, as amended at 67 FR 11248, Mar. 13, 2002; 
73 FR 65739, Nov. 5, 2008]



Sec. 131.34  Kansas.

    (a) In addition to the State-adopted use designations, the following 
water body segment in Kansas is designated for an expected aquatic life 
use:

----------------------------------------------------------------------------------------------------------------
                                                       Segment
          Stream segment name               HUC8                         Designated use
----------------------------------------------------------------------------------------------------------------
                                                 Basin: Missouri
                                          Subbasin: Independence-Sugar
----------------------------------------------------------------------------------------------------------------
Whiskey Creek.........................     10240011          235  Expected Aquatic Life.
----------------------------------------------------------------------------------------------------------------

    (b) In addition to the State-adopted use designations, the following 
water body segments and lakes in Kansas are designated for recreation 
uses as specified in the following table:

----------------------------------------------------------------------------------------------------------------
                                                       Segment
          Stream segment name               HUC8                         Designated use
----------------------------------------------------------------------------------------------------------------
                                                 Basin: Cimarron
 
                                         Subbasin: Upper Cimarron-Bluff
----------------------------------------------------------------------------------------------------------------
Big Sandy Creek.......................     11040008            6  Primary Contact Recreation
Gyp Creek.............................     11040008           25  Secondary Contact Recreation
Indian Creek..........................     11040008           14  Secondary Contact Recreation
Kiger Creek...........................     11040008            8  Secondary Contact Recreation
Stink Creek...........................     11040008           17  Secondary Contact Recreation
Two Mile Creek........................     11040008           15  Secondary Contact Recreation
----------------------------------------------------------------------------------------------------------------
                                      Subbasin: Lower Cimarron-Eagle Chief
----------------------------------------------------------------------------------------------------------------
Anderson Creek........................     11050001           39  Primary Contact Recreation
----------------------------------------------------------------------------------------------------------------

[[Page 452]]

 
                                         Basin: Kansas/Lower Republican
 
                                           Subbasin: Middle Republican
----------------------------------------------------------------------------------------------------------------
Antelope Creek........................     10250016           66  Secondary Contact Recreation
Ash Creek.............................     10250016           65  Secondary Contact Recreation
Bean Creek............................     10250016           76  Secondary Contact Recreation
Cora Creek............................     10250016           51  Secondary Contact Recreation
Crow Creek (Crystal Creek)............     10250016           52  Secondary Contact Recreation
Korb Creek............................     10250016           72  Primary Contact Recreation
Long Branch...........................     10250016           68  Secondary Contact Recreation
Lost Creek............................     10250016           53  Primary Contact Recreation
Louisa Creek..........................     10250016           61  Secondary Contact Recreation
Norway Creek..........................     10250016           73  Secondary Contact Recreation
Oak Creek.............................     10250016           75  Secondary Contact Recreation
Rebecca Creek.........................     10250016           39  Secondary Contact Recreation
Spring Creek..........................     10250016           71  Secondary Contact Recreation
Spring Creek..........................     10250016           78  Secondary Contact Recreation
Taylor Creek..........................     10250016           74  Secondary Contact Recreation
Walnut Creek..........................     10250016           40  Primary Contact Recreation
Walnut Creek..........................     10250016           46  Secondary Contact Recreation
White Rock Creek, North Branch........     10250016           60  Secondary Contact Recreation
Wolf Creek............................     10250016           67  Secondary Contact Recreation
----------------------------------------------------------------------------------------------------------------
                                           Subbasin: Lower Republican
----------------------------------------------------------------------------------------------------------------
Cool Creek............................     10250017           50  Secondary Contact Recreation
Elm Creek, West Branch................     10250017           59  Secondary Contact Recreation
Gar Creek.............................     10250017           12  Primary Contact Recreation
Mud Creek.............................     10250017           63  Secondary Contact Recreation
Turkey Creek..........................     10250017           51  Secondary Contact Recreation
----------------------------------------------------------------------------------------------------------------
                                             Subbasin: Upper Kansas
----------------------------------------------------------------------------------------------------------------
Dry Creek.............................     10270101           19  Primary Contact Recreation
Humbolt Creek.........................     10270101           10  Primary Contact Recreation
Kitten Creek..........................     10270101           14  Primary Contact Recreation
Little Arkansas Creek.................     10270101           13  Primary Contact Recreation
Little Kitten Creek...................     10270101           16  Primary Contact Recreation
Mulberry Creek........................     10270101           20  Secondary Contact Recreation
----------------------------------------------------------------------------------------------------------------
                                             Subbasin: Middle Kansas
----------------------------------------------------------------------------------------------------------------
Adams Creek...........................     10270102           53  Secondary Contact Recreation
Bartlett Creek........................     10270102           55  Secondary Contact Recreation
Big Elm Creek.........................     10270102           90  Secondary Contact Recreation
Blackjack Creek.......................     10270102           64  Secondary Contact Recreation
Blacksmith Creek......................     10270102          102  Secondary Contact Recreation
Bourbonais Creek......................     10270102           63  Primary Contact Recreation
Brush Creek...........................     10270102           57  Primary Contact Recreation
Coal Creek............................     10270102           46  Secondary Contact Recreation
Coryell Creek.........................     10270102           94  Secondary Contact Recreation
Cow Creek.............................     10270102           45  Secondary Contact Recreation
Crow Creek............................     10270102           86  Primary Contact Recreation
Darnells Creek........................     10270102           51  Secondary Contact Recreation
Dog Creek.............................     10270102           78  Secondary Contact Recreation
Doyle Creek...........................     10270102           69  Primary Contact Recreation
Dry Creek.............................     10270102           79  Primary Contact Recreation
Dutch Creek...........................     10270102           92  Secondary Contact Recreation
Elm Creek.............................     10270102           98  Primary Contact Recreation
Elm Creek.............................     10270102          103  Secondary Contact Recreation
Elm Slough............................     10270102           58  Secondary Contact Recreation
Emmons Creek..........................     10270102           66  Secondary Contact Recreation
French Creek..........................     10270102           19  Primary Contact Recreation
Gilson Creek..........................     10270102           47  Secondary Contact Recreation
Hendricks Creek.......................     10270102           73  Primary Contact Recreation
Hise Creek............................     10270102           43  Secondary Contact Recreation
Indian Creek..........................     10270102           20  Secondary Contact Recreation
James Creek...........................     10270102           87  Secondary Contact Recreation
Jim Creek.............................     10270102           52  Secondary Contact Recreation
Johnson Creek.........................     10270102           84  Secondary Contact Recreation
Kuenzli Creek.........................     10270102           82  Secondary Contact Recreation
Little Cross Creek....................     10270102           61  Secondary Contact Recreation
Little Muddy Creek....................     10270102           99  Primary Contact Recreation
Loire Creek...........................     10270102           80  Primary Contact Recreation

[[Page 453]]

 
Lost Creek............................     10270102           60  Secondary Contact Recreation
Messhoss Creek........................     10270102           96  Primary Contact Recreation
Mud Creek.............................     10270102           44  Secondary Contact Recreation
Mud Creek.............................     10270102           56  Secondary Contact Recreation
Muddy Creek, West Fork................     10270102           93  Secondary Contact Recreation
Mulberry Creek........................     10270102           42  Secondary Contact Recreation
Mulberry Creek........................     10270102           77  Secondary Contact Recreation
Nehring Creek.........................     10270102           81  Primary Contact Recreation
Paw Paw Creek.........................     10270102           75  Secondary Contact Recreation
Pleasant Hill Run Creek...............     10270102           23  Primary Contact Recreation
Pomeroy Creek.........................     10270102           59  Secondary Contact Recreation
Post Creek............................     10270102          101  Secondary Contact Recreation
Pretty Creek..........................     10270102           74  Secondary Contact Recreation
Rock Creek............................     10270102           21  Primary Contact Recreation
Rock Creek, East Fork.................     10270102           22  Secondary Contact Recreation
Ross Creek............................     10270102           35  Secondary Contact Recreation
Salt Creek............................     10270102           88  Secondary Contact Recreation
Sand Creek............................     10270102           65  Secondary Contact Recreation
Shunganunga Creek, South Branch.......     10270102          106  Primary Contact Recreation
Snake Creek...........................     10270102           95  Secondary Contact Recreation
Snokomo Creek.........................     10270102           85  Secondary Contact Recreation
Spring Creek..........................     10270102           48  Secondary Contact Recreation
Spring Creek..........................     10270102           54  Primary Contact Recreation
Spring Creek..........................     10270102           76  Secondary Contact Recreation
Spring Creek..........................     10270102          105  Secondary Contact Recreation
Sullivan Creek........................     10270102           89  Primary Contact Recreation
Tecumseh Creek........................     10270102          107  Secondary Contact Recreation
Turkey Creek..........................     10270102           71  Primary Contact Recreation
Unnamed Stream........................     10270102            8  Secondary Contact Recreation
Vassar Creek..........................     10270102          100  Secondary Contact Recreation
Vermillion Creek......................     10270102           15  Primary Contact Recreation
Walnut Creek..........................     10270102           91  Secondary Contact Recreation
Wells Creek...........................     10270102           68  Secondary Contact Recreation
Whetstone Creek.......................     10270102          104  Secondary Contact Recreation
Wilson Creek..........................     10270102           50  Primary Contact Recreation
Wolf Creek............................     10270102           49  Primary Contact Recreation
----------------------------------------------------------------------------------------------------------------
                                               Subbasin: Delaware
----------------------------------------------------------------------------------------------------------------
Banner Creek..........................     10270103           45  Secondary Contact Recreation
Barnes Creek..........................     10270103           39  Secondary Contact Recreation
Bills Creek...........................     10270103           47  Secondary Contact Recreation
Brush Creek...........................     10270103           44  Secondary Contact Recreation
Brush Creek...........................     10270103           54  Primary Contact Recreation
Burr Oak Branch.......................     10270103            8  Primary Contact Recreation
Catamount Creek.......................     10270103           49  Primary Contact Recreation
Cedar Creek, North....................     10270103           46  Primary Contact Recreation
Claywell Creek........................     10270103           56  Primary Contact Recreation
Clear Creek...........................     10270103           19  Primary Contact Recreation
Coal Creek............................     10270103           50  Primary Contact Recreation
Grasshopper Creek.....................     10270103           18  Primary Contact Recreation
Grasshopper Creek.....................     10270103           20  Primary Contact Recreation
Gregg Creek...........................     10270103           24  Primary Contact Recreation
Honey Creek...........................     10270103           55  Secondary Contact Recreation
Little Grasshopper Creek..............     10270103           16  Secondary Contact Recreation
Little Wild Horse Creek...............     10270103           57  Primary Contact Recreation
Mission Creek.........................     10270103           40  Primary Contact Recreation
Nebo Creek............................     10270103           48  Secondary Contact Recreation
Negro Creek...........................     10270103           43  Secondary Contact Recreation
Otter Creek...........................     10270103           41  Secondary Contact Recreation
Plum Creek............................     10270103           36  Secondary Contact Recreation
Rock Creek............................     10270103           34  Primary Contact Recreation
Rock Creek............................     10270103           53  Primary Contact Recreation
Spring Creek..........................     10270103           42  Primary Contact Recreation
Squaw Creek...........................     10270103           38  Secondary Contact Recreation
Straight Creek........................     10270103           28  Secondary Contact Recreation
Tick Creek............................     10270103           52  Primary Contact Recreation
Unnamed Stream........................     10270103           31  Secondary Contact Recreation
Walnut Creek..........................     10270103           51  Primary Contact Recreation
Wolfley Creek.........................     10270103           27  Secondary Contact Recreation
----------------------------------------------------------------------------------------------------------------
                                             Subbasin: Lower Kansas
----------------------------------------------------------------------------------------------------------------
Baldwin Creek.........................     10270104           69  Secondary Contact Recreation

[[Page 454]]

 
Brush Creek...........................     10270104           49  Secondary Contact Recreation
Brush Creek, West.....................     10270104           46  Secondary Contact Recreation
Buttermilk Creek......................     10270104           44  Secondary Contact Recreation
Camp Creek............................     10270104           41  Secondary Contact Recreation
Camp Creek............................     10270104           74  Secondary Contact Recreation
Captain Creek.........................     10270104           72  Primary Contact Recreation
Chicken Creek.........................     10270104           79  Secondary Contact Recreation
Clear Creek...........................     10270104          383  Primary Contact Recreation
Cow Creek.............................     10270104           58  Secondary Contact Recreation
Crooked Creek.........................     10270104           10  Primary Contact Recreation
Crooked Creek.........................     10270104           12  Primary Contact Recreation
Dawson Creek..........................     10270104           45  Secondary Contact Recreation
Elk Creek.............................     10270104           68  Primary Contact Recreation
Full Creek............................     10270104           52  Primary Contact Recreation
Hanson Creek..........................     10270104          437  Secondary Contact Recreation
Hog Creek.............................     10270104           54  Secondary Contact Recreation
Howard Creek..........................     10270104           43  Secondary Contact Recreation
Hulls Branch..........................     10270104           42  Secondary Contact Recreation
Indian Creek..........................     10270104           48  Secondary Contact Recreation
Jarbalo Creek.........................     10270104           51  Secondary Contact Recreation
Kent Creek............................     10270104           73  Secondary Contact Recreation
Kill Creek............................     10270104           37  Primary Contact Recreation
Little Cedar Creek....................     10270104           76  Primary Contact Recreation
Little Mill Creek.....................     10270104           78  Primary Contact Recreation
Little Turkey Creek...................     10270104           62  Primary Contact Recreation
Little Wakarusa Creek.................     10270104           71  Primary Contact Recreation
Mission Creek, East...................     10270104           61  Secondary Contact Recreation
Ninemile Creek........................     10270104           15  Secondary Contact Recreation
Ninemile Creek........................     10270104           17  Primary Contact Recreation
Oakley Creek..........................     10270104           56  Secondary Contact Recreation
Plum Creek............................     10270104           50  Secondary Contact Recreation
Prairie Creek.........................     10270104           47  Secondary Contact Recreation
Rock Creek............................     10270104           35  Primary Contact Recreation
Scatter Creek.........................     10270104           13  Secondary Contact Recreation
Spoon Creek...........................     10270104           75  Secondary Contact Recreation
Stone Horse Creek.....................     10270104           57  Secondary Contact Recreation
Stranger Creek........................     10270104            7  Primary Contact Recreation
Stranger Creek........................     10270104            8  Primary Contact Recreation
Stranger Creek........................     10270104            9  Primary Contact Recreation
Tonganoxie Creek......................     10270104           14  Primary Contact Recreation
Tooley Creek..........................     10270104          379  Secondary Contact Recreation
Turkey Creek..........................     10270104           77  Primary Contact Recreation
Unnamed Stream........................     10270104           11  Primary Contact Recreation
Unnamed Stream........................     10270104           16  Secondary Contact Recreation
Wakarusa River, Middle Branch.........     10270104           64  Secondary Contact Recreation
Wakarusa River, South Branch..........     10270104           63  Primary Contact Recreation
Washington Creek......................     10270104           36  Primary Contact Recreation
Yankee Tank Creek.....................     10270104           70  Primary Contact Recreation
----------------------------------------------------------------------------------------------------------------
                                            Subbasin: Lower Big Blue
----------------------------------------------------------------------------------------------------------------
Ackerman Creek........................     10270205           49  Secondary Contact Recreation
Black Vermillion River, Clear Fork....     10270205            9  Primary Contact Recreation
Black Vermillion River, North Fork....     10270205           15  Secondary Contact Recreation
Black Vermillion River, South Fork....     10270205           12  Secondary Contact Recreation
Bluff Creek...........................     10270205          573  Primary Contact Recreation
Bommer Creek..........................     10270205           40  Secondary Contact Recreation
Busksnort Creek.......................     10270205          566  Secondary Contact Recreation
Carter Creek..........................     10270205           59  Secondary Contact Recreation
Cedar Creek...........................     10270205           56  Secondary Contact Recreation
Corndodger Creek......................     10270205           52  Primary Contact Recreation
De Shazer Creek.......................     10270205           55  Secondary Contact Recreation
Deadman Creek.........................     10270205           60  Secondary Contact Recreation
Deer Creek............................     10270205           36  Secondary Contact Recreation
Dog Walk Creek........................     10270205           53  Secondary Contact Recreation
Dutch Creek...........................     10270205           44  Primary Contact Recreation
Elm Creek.............................     10270205           46  Secondary Contact Recreation
Elm Creek, North......................     10270205           41  Secondary Contact Recreation
Fancy Creek, North Fork...............     10270205           61  Secondary Contact Recreation
Fancy Creek, West.....................     10270205           29  Primary Contact Recreation
Game Fork.............................     10270205           54  Secondary Contact Recreation
Hop Creek.............................     10270205           43  Secondary Contact Recreation
Indian Creek..........................     10270205           37  Secondary Contact Recreation
Jim Creek.............................     10270205           57  Secondary Contact Recreation

[[Page 455]]

 
Johnson Fork..........................     10270205           51  Secondary Contact Recreation
Kearney Branch........................     10270205           58  Secondary Contact Recreation
Lily Creek............................     10270205           39  Secondary Contact Recreation
Little Indian Creek...................     10270205           35  Secondary Contact Recreation
Little Timber Creek...................     10270205           48  Primary Contact Recreation
Meadow Creek..........................     10270205           34  Secondary Contact Recreation
Mission Creek.........................     10270205           22  Primary Contact Recreation
Murdock Creek.........................     10270205           42  Secondary Contact Recreation
Otter Creek...........................     10270205           67  Secondary Contact Recreation
Otter Creek, North....................     10270205           62  Primary Contact Recreation
Perkins Creek.........................     10270205           47  Secondary Contact Recreation
Phiel Creek...........................     10270205           68  Primary Contact Recreation
Raemer Creek..........................     10270205           33  Primary Contact Recreation
Robidoux Creek........................     10270205           16  Primary Contact Recreation
Schell Creek..........................     10270205           45  Primary Contact Recreation
School Branch.........................     10270205           63  Secondary Contact Recreation
Scotch Creek..........................     10270205           38  Secondary Contact Recreation
Spring Creek..........................     10270205           19  Primary Contact Recreation
Spring Creek..........................     10270205           65  Primary Contact Recreation
Timber Creek..........................     10270205           64  Primary Contact Recreation
Weyer Creek...........................     10270205           50  Secondary Contact Recreation
----------------------------------------------------------------------------------------------------------------
                                           Subbasin: Upper Little Blue
----------------------------------------------------------------------------------------------------------------
Dry Creek.............................     10270206           41  Secondary Contact Recreation
----------------------------------------------------------------------------------------------------------------
                                           Subbasin: Lower Little Blue
----------------------------------------------------------------------------------------------------------------
Ash Creek.............................     10270207           36  Secondary Contact Recreation
Beaver Creek..........................     10270207           38  Secondary Contact Recreation
Bolling Creek.........................     10270207           42  Secondary Contact Recreation
Bowman Creek..........................     10270207           21  Secondary Contact Recreation
Buffalo Creek.........................     10270207           32  Secondary Contact Recreation
Camp Creek............................     10270207           35  Secondary Contact Recreation
Camp Creek............................     10270207           44  Primary Contact Recreation
Cedar Creek...........................     10270207           40  Secondary Contact Recreation
Cherry Creek..........................     10270207           25  Secondary Contact Recreation
Coon Creek............................     10270207           23  Primary Contact Recreation
Fawn Creek............................     10270207           45  Secondary Contact Recreation
Gray Branch...........................     10270207           27  Secondary Contact Recreation
Humphrey Branch.......................     10270207           24  Secondary Contact Recreation
Iowa Creek............................     10270207           34  Secondary Contact Recreation
Jones Creek...........................     10270207           29  Secondary Contact Recreation
Joy Creek.............................     10270207           13  Secondary Contact Recreation
Lane Branch...........................     10270207           39  Secondary Contact Recreation
Malone Creek..........................     10270207           37  Secondary Contact Recreation
Melvin Creek..........................     10270207           33  Secondary Contact Recreation
Mercer Creek..........................     10270207           43  Primary Contact Recreation
Mill Creek, South Fork................     10270207           31  Secondary Contact Recreation
Myer Creek............................     10270207           26  Secondary Contact Recreation
Riddle Creek..........................     10270207           17  Secondary Contact Recreation
Rose Creek............................     10270207           12  Secondary Contact Recreation
Salt Creek............................     10270207           19  Primary Contact Recreation
School Creek..........................     10270207           49  Primary Contact Recreation
Silver Creek..........................     10270207           28  Primary Contact Recreation
Spring Creek..........................     10270207           15  Secondary Contact Recreation
Spring Creek..........................     10270207           30  Secondary Contact Recreation
Walnut Creek..........................     10270207           41  Primary Contact Recreation
----------------------------------------------------------------------------------------------------------------
                                              Basin: Lower Arkansas
 
                                              Subbasin: Rattlesnake
----------------------------------------------------------------------------------------------------------------
Spring Creek..........................     11030009            7  Secondary Contact Recreation
----------------------------------------------------------------------------------------------------------------
                                               Subbasin: Gar-Peace
----------------------------------------------------------------------------------------------------------------
Gar Creek.............................     11030010            8  Primary Contact Recreation
----------------------------------------------------------------------------------------------------------------
                                                  Subbasin: Cow
----------------------------------------------------------------------------------------------------------------
Blood Creek...........................     11030011           15  Secondary Contact Recreation
Deception Creek.......................     11030011           13  Secondary Contact Recreation
Dry Creek.............................     11030011           22  Primary Contact Recreation
Jarvis Creek..........................     11030011           19  Primary Contact Recreation

[[Page 456]]

 
Little Cheyenne Creek.................     11030011            7  Primary Contact Recreation
Little Cow Creek......................     11030011            2  Primary Contact Recreation
Lost Creek............................     11030011           17  Secondary Contact Recreation
Owl Creek.............................     11030011           18  Primary Contact Recreation
Plum Creek............................     11030011            4  Secondary Contact Recreation
Salt Creek............................     11030011           21  Primary Contact Recreation
Spring Creek..........................     11030011           20  Secondary Contact Recreation
----------------------------------------------------------------------------------------------------------------
                                            Subbasin: Little Arkansas
----------------------------------------------------------------------------------------------------------------
Beaver Creek..........................     11030012           26  Primary Contact Recreation
Bull Creek............................     11030012           24  Primary Contact Recreation
Dry Creek.............................     11030012           22  Secondary Contact Recreation
Dry Turkey Creek......................     11030012           13  Primary Contact Recreation
Emma Creek............................     11030012            6  Primary Contact Recreation
Emma Creek............................     11030012            7  Primary Contact Recreation
Emma Creek, West......................     11030012            8  Primary Contact Recreation
Gooseberry Creek......................     11030012           17  Primary Contact Recreation
Horse Creek...........................     11030012           19  Primary Contact Recreation
Jester Creek..........................     11030012            2  Primary Contact Recreation
Jester Creek, East Fork...............     11030012           18  Primary Contact Recreation
Kisiwa Creek..........................     11030012           15  Secondary Contact Recreation
Lone Tree Creek.......................     11030012           20  Secondary Contact Recreation
Mud Creek.............................     11030012           16  Primary Contact Recreation
Running Turkey Creek..................     11030012           25  Secondary Contact Recreation
Salt Creek............................     11030012           21  Primary Contact Recreation
Sun Creek.............................     11030012           11  Primary Contact Recreation
Turkey Creek..........................     11030012           12  Secondary Contact Recreation
----------------------------------------------------------------------------------------------------------------
                                        Subbasin: Middle Arkansas--Slate
----------------------------------------------------------------------------------------------------------------
Antelope Creek........................     11030013           25  Primary Contact Recreation
Badger Creek..........................     11030013           31  Primary Contact Recreation
Beaver Creek..........................     11030013           29  Primary Contact Recreation
Beaver Creek..........................     11030013           33  Primary Contact Recreation
Big Slough............................     11030013           11  Primary Contact Recreation
Big Slough, South Fork................     11030013           35  Primary Contact Recreation
Bitter Creek..........................     11030013           28  Primary Contact Recreation
Dry Creek.............................     11030013           15  Primary Contact Recreation
Dry Creek.............................     11030013           16  Primary Contact Recreation
Gypsum Creek..........................     11030013            5  Primary Contact Recreation
Hargis Creek..........................     11030013           24  Primary Contact Recreation
Lost Creek............................     11030013           23  Primary Contact Recreation
Negro Creek...........................     11030013           20  Primary Contact Recreation
Oak Creek.............................     11030013           26  Secondary Contact Recreation
Salt Creek............................     11030013           22  Primary Contact Recreation
Spring Creek..........................     11030013           19  Primary Contact Recreation
Spring Creek..........................     11030013           21  Primary Contact Recreation
Spring Creek..........................     11030013           27  Primary Contact Recreation
Spring Creek..........................     11030013           34  Primary Contact Recreation
Spring Creek..........................     11030013           37  Primary Contact Recreation
Winser Creek..........................     11030013           32  Primary Contact Recreation
----------------------------------------------------------------------------------------------------------------
                                         Subbasin: North Fork Ninnescah
----------------------------------------------------------------------------------------------------------------
Crow Creek............................     11030014           11  Primary Contact Recreation
Dooleyville Creek.....................     11030014            8  Primary Contact Recreation
Goose Creek...........................     11030014           10  Primary Contact Recreation
Ninnescah River, North Fork...........     11030014            1  Primary Contact Recreation
Ninnescah River, North Fork...........     11030014            5  Primary Contact Recreation
Ninnescah River, North Fork...........     11030014            6  Primary Contact Recreation
Red Rock Creek........................     11030014           12  Primary Contact Recreation
Rock Creek............................     11030014           13  Primary Contact Recreation
Silver Creek..........................     11030014            7  Primary Contact Recreation
Spring Creek..........................     11030014           14  Primary Contact Recreation
Wolf Creek............................     11030014            9  Primary Contact Recreation
----------------------------------------------------------------------------------------------------------------
                                         Subbasin: South Fork Ninnescah
----------------------------------------------------------------------------------------------------------------
Coon Creek............................     11030015            9  Primary Contact Recreation
Coon Creek............................     11030015           17  Primary Contact Recreation
Hunter Creek..........................     11030015           14  Primary Contact Recreation
Mead Creek............................     11030015           10  Primary Contact Recreation
Mod Creek.............................     11030015           19  Primary Contact Recreation
Natrona Creek.........................     11030015          K38  Primary Contact Recreation

[[Page 457]]

 
Negro Creek...........................     11030015           13  Primary Contact Recreation
Nester Creek..........................     11030015           15  Primary Contact Recreation
Ninnescah River, West Branch South         11030015            5  Primary Contact Recreation
 Fork.
Painter Creek.........................     11030015            7  Primary Contact Recreation
Pat Creek.............................     11030015           11  Primary Contact Recreation
Petyt Creek...........................     11030015           12  Primary Contact Recreation
Sand Creek............................     11030015           18  Primary Contact Recreation
Spring Creek..........................     11030015            8  Primary Contact Recreation
Wild Run Creek........................     11030015           16  Primary Contact Recreation
----------------------------------------------------------------------------------------------------------------
                                               Subbasin: Ninnescah
----------------------------------------------------------------------------------------------------------------
Afton Creek...........................     11030016            5  Primary Contact Recreation
Clearwater Creek......................     11030016            4  Primary Contact Recreation
Clearwater Creek......................     11030016            7  Primary Contact Recreation
Dry Creek.............................     11030016           16  Primary Contact Recreation
Elm Creek.............................     11030016           10  Primary Contact Recreation
Garvey Creek..........................     11030016           11  Primary Contact Recreation
Sand Creek............................     11030016           14  Primary Contact Recreation
Silver Creek..........................     11030016           12  Primary Contact Recreation
Spring Creek..........................     11030016            2  Primary Contact Recreation
Spring Creek..........................     11030016           15  Primary Contact Recreation
Turtle Creek..........................     11030016           13  Primary Contact Recreation
----------------------------------------------------------------------------------------------------------------
                                               Subbasin: Kaw Lake
----------------------------------------------------------------------------------------------------------------
Blue Branch...........................     11060001           30  Primary Contact Recreation
Bullington Creek......................     11060001           28  Primary Contact Recreation
Cedar Creek...........................     11060001           32  Primary Contact Recreation
Chilocco Creek........................     11060001           19  Primary Contact Recreation
Crabb Creek...........................     11060001           29  Primary Contact Recreation
Ferguson Creek........................     11060001           38  Primary Contact Recreation
Franklin Creek........................     11060001           35  Primary Contact Recreation
Gardners Branch.......................     11060001           39  Primary Contact Recreation
Goose Creek...........................     11060001           34  Primary Contact Recreation
Myers Creek...........................     11060001           24  Primary Contact Recreation
Otter Creek...........................     11060001           20  Primary Contact Recreation
Pebble Creek..........................     11060001           26  Primary Contact Recreation
Plum Creek............................     11060001           33  Primary Contact Recreation
Riley Creek...........................     11060001           37  Primary Contact Recreation
School Creek..........................     11060001           31  Primary Contact Recreation
Shellrock Creek.......................     11060001           22  Primary Contact Recreation
Silver Creek..........................     11060001           17  Primary Contact Recreation
Snake Creek...........................     11060001           25  Primary Contact Recreation
Spring Creek..........................     11060001           21  Primary Contact Recreation
Turkey Creek..........................     11060001           27  Primary Contact Recreation
Wagoner Creek.........................     11060001           36  Primary Contact Recreation
----------------------------------------------------------------------------------------------------------------
                                       Subbasin: Upper Salt Fork Arkansas
----------------------------------------------------------------------------------------------------------------
Ash Creek.............................     11060002           20  Primary Contact Recreation
Big Sandy Creek.......................     11060002            5  Primary Contact Recreation
Cave Creek............................     11060002           28  Primary Contact Recreation
Deadman Creek.........................     11060002           22  Primary Contact Recreation
Dog Creek.............................     11060002           29  Primary Contact Recreation
Hackberry Creek.......................     11060002           23  Primary Contact Recreation
Indian Creek..........................     11060002            9  Primary Contact Recreation
Inman Creek...........................     11060002           21  Primary Contact Recreation
Mustang Creek.........................     11060002           31  Primary Contact Recreation
Nescatunga Creek, East Branch.........     11060002           27  Primary Contact Recreation
Red Creek.............................     11060002           16  Primary Contact Recreation
Spring Creek..........................     11060002           24  Primary Contact Recreation
Wildcat Creek.........................     11060002           12  Primary Contact Recreation
Yellowstone Creek.....................     11060002           17  Primary Contact Recreation
----------------------------------------------------------------------------------------------------------------
                                            Subbasin: Medicine Lodge
----------------------------------------------------------------------------------------------------------------
Amber Creek...........................     11060003           12  Primary Contact Recreation
Antelope Creek........................     11060003           22  Primary Contact Recreation
Bear Creek............................     11060003           13  Secondary Contact Recreation
Bitter Creek..........................     11060003           18  Secondary Contact Recreation
Cedar Creek...........................     11060003           20  Primary Contact Recreation
Cottonwood Creek......................     11060003           16  Primary Contact Recreation
Crooked Creek.........................     11060003           11  Primary Contact Recreation
Litle Mule Creek......................     11060003            9  Primary Contact Recreation

[[Page 458]]

 
Dry Creek.............................     11060003           21  Secondary Contact Recreation
Elm Creek, East Branch South..........     11060003           10  Primary Contact Recreation
Elm Creek, North Branch...............     11060003            4  Primary Contact Recreation
Elm Creek, South Branch...............     11060003            5  Primary Contact Recreation
Little Bear Creek.....................     11060003           19  Primary Contact Recreation
Medicine Lodge River, North Branch....     11060003           24  Secondary Contact Recreation
Mulberry Creek........................     11060003           14  Primary Contact Recreation
Otter Creek...........................     11060003           25  Secondary Contact Recreation
Puckett Creek.........................     11060003           15  Primary Contact Recreation
Sand Creek............................     11060003           17  Primary Contact Recreation
Soldier Creek.........................     11060003           27  Secondary Contact Recreation
Stink Creek...........................     11060003           28  Primary Contact Recreation
Turkey Creek..........................     11060003            7  Primary Contact Recreation
Wilson Slough.........................     11060003           23  Primary Contact Recreation
----------------------------------------------------------------------------------------------------------------
                                       Subbasin: Lower Salt Fork Arkansas
----------------------------------------------------------------------------------------------------------------
Camp Creek............................     11060004           68  Primary Contact Recreation
Cooper Creek..........................     11060004           71  Primary Contact Recreation
Crooked Creek.........................     11060004           24  Primary Contact Recreation
Little Sandy Creek....................     11060004           39  Primary Contact Recreation
Little Sandy Creek, East Branch.......     11060004           65  Primary Contact Recreation
Osage Creek...........................     11060004           17  Primary Contact Recreation
Plum Creek............................     11060004           70  Primary Contact Recreation
Pond Creek............................     11060004           18  Primary Contact Recreation
Rush Creek............................     11060004           69  Primary Contact Recreation
Salty Creek...........................     11060004           40  Primary Contact Recreation
Sandy Creek...........................     11060004           37  Primary Contact Recreation
Sandy Creek, West.....................     11060004           56  Primary Contact Recreation
Spring Creek..........................     11060004           66  Primary Contact Recreation
Unnamed Stream........................     11060004           25  Primary Contact Recreation
----------------------------------------------------------------------------------------------------------------
                                               Subbasin: Chikaskia
----------------------------------------------------------------------------------------------------------------
Allen Creek...........................     11060005           40  Primary Contact Recreation
Baehr Creek...........................     11060005           22  Primary Contact Recreation
Beaver Creek..........................     11060005           28  Primary Contact Recreation
Beaver Creek..........................     11060005           46  Primary Contact Recreation
Big Spring Creek......................     11060005           34  Primary Contact Recreation
Bitter Creek..........................     11060005            4  Primary Contact Recreation
Bitter Creek, East....................     11060005           16  Primary Contact Recreation
Blue Stem Creek.......................     11060005           48  Primary Contact Recreation
Chicken Creek.........................     11060005           36  Primary Contact Recreation
Copper Creek..........................     11060005           42  Primary Contact Recreation
Dry Creek.............................     11060005           17  Primary Contact Recreation
Duck Creek............................     11060005           32  Primary Contact Recreation
Fall Creek............................     11060005           14  Primary Contact Recreation
Fall Creek, East Branch...............     11060005           27  Primary Contact Recreation
Goose Creek...........................     11060005           38  Primary Contact Recreation
Kemp Creek............................     11060005           49  Primary Contact Recreation
Long Creek............................     11060005          529  Primary Contact Recreation
Meridian Creek........................     11060005           20  Primary Contact Recreation
Prairie Creek.........................     11060005          512  Primary Contact Recreation
Prairie Creek, East...................     11060005          516  Primary Contact Recreation
Prairie Creek, West...................     11060005          527  Primary Contact Recreation
Red Creek.............................     11060005           43  Primary Contact Recreation
Rock Creek............................     11060005           23  Primary Contact Recreation
Rodgers Branch........................     11060005           26  Primary Contact Recreation
Rose Bud Creek........................     11060005           44  Primary Contact Recreation
Rush Creek............................     11060005           45  Primary Contact Recreation
Sand Creek............................     11060005           11  Primary Contact Recreation
Sand Creek, East......................     11060005           12  Primary Contact Recreation
Sandy Creek...........................     11060005           30  Primary Contact Recreation
Shoo Fly Creek, East..................     11060005           19  Secondary Contact Recreation
Shore Creek...........................     11060005           35  Primary Contact Recreation
Silver Creek..........................     11060005           29  Primary Contact Recreation
Skunk Creek...........................     11060005           39  Primary Contact Recreation
Spring Branch.........................     11060005           21  Primary Contact Recreation
Wild Horse Creek......................     11060005           41  Primary Contact Recreation
Wildcat Creek.........................     11060005           24  Primary Contact Recreation
----------------------------------------------------------------------------------------------------------------
                                            Basin: Marais Des Cygnes
 
                                        Subbasin: Upper Marais Des Cygnes
----------------------------------------------------------------------------------------------------------------
Appanoose Creek.......................     10290101           16  Primary Contact Recreation

[[Page 459]]

 
Appanoose Creek, East.................     10290101           89  Primary Contact Recreation
Batch Creek...........................     10290101           86  Primary Contact Recreation
Blue Creek............................     10290101           81  Primary Contact Recreation
Bradshaw Creek........................     10290101           75  Primary Contact Recreation
Cedar Creek...........................     10290101           66  Primary Contact Recreation
Cherry Creek..........................     10290101           74  Primary Contact Recreation
Chicken Creek.........................     10290101           70  Primary Contact Recreation
Chicken Creek.........................     10290101           93  Primary Contact Recreation
Coal Creek............................     10290101           48  Primary Contact Recreation
Dry Creek.............................     10290101           57  Primary Contact Recreation
Dry Creek.............................     10290101           95  Primary Contact Recreation
Duck Creek............................     10290101           41  Primary Contact Recreation
Eightmile Creek.......................     10290101           13  Primary Contact Recreation
Frog Creek............................     10290101           42  Primary Contact Recreation
Hard Fish Creek.......................     10290101           47  Primary Contact Recreation
Hickory Creek.........................     10290101            8  Primary Contact Recreation
Hill Creek............................     10290101           71  Primary Contact Recreation
Iantha Creek..........................     10290101           62  Primary Contact Recreation
Jersey Creek..........................     10290101           76  Primary Contact Recreation
Kenoma Creek..........................     10290101           64  Primary Contact Recreation
Little Rock Creek.....................     10290101           73  Primary Contact Recreation
Long Creek............................     10290101          K36  Primary Contact Recreation
Locust Creek..........................     10290101           69  Primary Contact Recreation
Middle Creek..........................     10290101           50  Primary Contact Recreation
Mosquito Creek........................     10290101           52  Primary Contact Recreation
Mud Creek.............................     10290101           49  Primary Contact Recreation
Mud Creek.............................     10290101           78  Primary Contact Recreation
Mud Creek.............................     10290101           91  Primary Contact Recreation
Mute Creek............................     10290101           92  Primary Contact Recreation
Ottawa Creek..........................     10290101          K25  Primary Contact Recreation
Plum Creek............................     10290101            2  Primary Contact Recreation
Plum Creek............................     10290101           79  Primary Contact Recreation
Popcorn Creek.........................     10290101           87  Primary Contact Recreation
Pottawatomie Creek, North Fork........     10290101           65  Primary Contact Recreation
Pottawatomie Creek, South Fork........     10290101           67  Primary Contact Recreation
Rock Creek............................     10290101           43  Primary Contact Recreation
Rock Creek............................     10290101           97  Primary Contact Recreation
Sac Branch, South Fork................     10290101           54  Secondary Contact Recreation
Sac Creek.............................     10290101           60  Primary Contact Recreation
Salt Creek............................     10290101           29  Primary Contact Recreation
Sand Creek............................     10290101           82  Primary Contact Recreation
Smith Creek...........................     10290101           77  Primary Contact Recreation
Spring Creek..........................     10290101           84  Primary Contact Recreation
Switzler Creek........................     10290101           80  Primary Contact Recreation
Tauy Creek............................     10290101           11  Primary Contact Recreation
Tauy Creek, West Fork.................     10290101          K26  Primary Contact Recreation
Tequa Creek...........................     10290101           44  Primary Contact Recreation
Tequa Creek, East Branch..............     10290101           46  Primary Contact Recreation
Tequa Creek, South Branch.............     10290101           45  Primary Contact Recreation
Thomas Creek..........................     10290101           72  Secondary Contact Recreation
Turkey Creek..........................     10290101            4  Primary Contact Recreation
Turkey Creek..........................     10290101            6  Primary Contact Recreation
Unnamed Stream........................     10290101            5  Primary Contact Recreation
Walnut Creek..........................     10290101           90  Primary Contact Recreation
West Fork Eight Mile Creek............     10290101           88  Primary Contact Recreation
Willow Creek..........................     10290101           94  Primary Contact Recreation
Wilson Creek..........................     10290101           83  Primary Contact Recreation
Wolf Creek............................     10290101           96  Primary Contact Recreation
----------------------------------------------------------------------------------------------------------------
                                        Subbasin: Lower Marais Des Cygnes
----------------------------------------------------------------------------------------------------------------
Buck Creek............................     10290102           44  Primary Contact Recreation
Bull Creek............................     10290102           26  Secondary Contact Recreation
Davis Creek...........................     10290102           38  Primary Contact Recreation
Dorsey Creek..........................     10290102           22  Primary Contact Recreation
Elm Branch............................     10290102           48  Primary Contact Recreation
Elm Branch............................     10290102           53  Primary Contact Recreation
Elm Creek.............................     10290102           40  Primary Contact Recreation
Hushpuckney Creek.....................     10290102           37  Primary Contact Recreation
Jake Branch...........................     10290102           54  Secondary Contact Recreation
Jordan Branch.........................     10290102           36  Primary Contact Recreation
Little Bull Creek.....................     10290102           51  Primary Contact Recreation
Little Sugar Creek....................     10290102           33  Primary Contact Recreation
Little Sugar Creek, North Fork........     10290102           43  Primary Contact Recreation

[[Page 460]]

 
Martin Creek..........................     10290102           26  Primary Contact Recreation
Middle Creek..........................     10290102           13  Primary Contact Recreation
Middle Creek..........................     10290102           30  Primary Contact Recreation
Mound Creek...........................     10290102           35  Primary Contact Recreation
Richland Creek........................     10290102           41  Primary Contact Recreation
Rock Creek............................     10290102           27  Primary Contact Recreation
Smith Branch..........................     10290102           47  Primary Contact Recreation
Spring Creek..........................     10290102           50  Primary Contact Recreation
Sugar Creek...........................     10290102           42  Primary Contact Recreation
Turkey Creek..........................     10290102           45  Primary Contact Recreation
Walnut Creek..........................     10290102           14  Primary Contact Recreation
Walnut Creek..........................     10290102           34  Primary Contact Recreation
Walnut Creek..........................     10290102           52  Primary Contact Recreation
Wea Creek, North......................     10290102           21  Primary Contact Recreation
Wea Creek, South......................     10290102           18  Primary Contact Recreation
Wea Creek, South......................     10290102           19  Primary Contact Recreation
Wea Creek, South......................     10290102           20  Primary Contact Recreation
----------------------------------------------------------------------------------------------------------------
                                             Subbasin: Little Osage
----------------------------------------------------------------------------------------------------------------
Clever Creek..........................     10290103            7  Primary Contact Recreation
Elk Creek.............................     10290103           11  Primary Contact Recreation
Fish Creek............................     10290103            8  Primary Contact Recreation
Indian Creek..........................     10290103           12  Primary Contact Recreation
Irish Creek...........................     10290103            9  Primary Contact Recreation
Laberdie Creek, East..................     10290103           13  Primary Contact Recreation
Limestone Creek.......................     10290103            5  Primary Contact Recreation
Lost Creek............................     10290103           10  Primary Contact Recreation
Reagan Branch.........................     10290103            6  Primary Contact Recreation
----------------------------------------------------------------------------------------------------------------
                                               Subbasin: Marmaton
----------------------------------------------------------------------------------------------------------------
Buck Run..............................     10290104           46  Primary Contact Recreation
Bunion Creek..........................     10290104           39  Primary Contact Recreation
Cedar Creek...........................     10290104           41  Primary Contact Recreation
Drywood Creek, Moores Branch..........     10290104           17  Primary Contact Recreation
Drywood Creek, West Fork..............     10290104           19  Primary Contact Recreation
Elm Creek.............................     10290104           15  Secondary Contact Recreation
Hinton Creek..........................     10290104           38  Primary Contact Recreation
Lath Branch...........................     10290104           42  Primary Contact Recreation
Little Mill Creek.....................     10290104           34  Primary Contact Recreation
Mill Creek............................     10290104            6  Primary Contact Recreation
Owl Creek.............................     10290104           45  Primary Contact Recreation
Paint Creek...........................     10290104           13  Primary Contact Recreation
Paint Creek...........................     10290104           14  Primary Contact Recreation
Prong Creek...........................     10290104           44  Secondary Contact Recreation
Robinson Branch.......................     10290104           40  Primary Contact Recreation
Shiloh Creek..........................     10290104           36  Primary Contact Recreation
Sweet Branch..........................     10290104           30  Primary Contact Recreation
Tennyson Creek........................     10290104           31  Primary Contact Recreation
Turkey Creek..........................     10290104           33  Primary Contact Recreation
Walnut Creek..........................     10290104           32  Primary Contact Recreation
Walnut Creek..........................     10290104           47  Primary Contact Recreation
Wolfpen Creek.........................     10290104           37  Primary Contact Recreation
Wolverine Creek.......................     10290104           35  Primary Contact Recreation
----------------------------------------------------------------------------------------------------------------
                                              Subbasin: South Grand
----------------------------------------------------------------------------------------------------------------
Harless Creek.........................     10290108           67  Primary Contact Recreation
Poney Creek...........................     10290108           48  Primary Contact Recreation
----------------------------------------------------------------------------------------------------------------
                                                 Basin: Missouri
 
                                              Subbasin: Tarkio-Wolf
----------------------------------------------------------------------------------------------------------------
Cold Ryan Branch......................     10240005           70  Primary Contact Recreation
Coon Creek............................     10240005           71  Primary Contact Recreation
Halling Creek.........................     10240005           68  Primary Contact Recreation
Mill Creek............................     10240005           52  Primary Contact Recreation
Rittenhouse Branch....................     10240005           69  Primary Contact Recreation
Spring Creek..........................     10240005           65  Primary Contact Recreation
Striker Branch........................     10240005           72  Primary Contact Recreation
Wolf River, Middle Fork...............     10240005           67  Primary Contact Recreation
Wolf River, North Fork................     10240005           66  Primary Contact Recreation
Wolf River, South Fork................     10240005           57  Primary Contact Recreation

[[Page 461]]

 
Unnamed Stream........................     10240005           55  Primary Contact Recreation
----------------------------------------------------------------------------------------------------------------
                                         Subbasin: South Fork Big Nemaha
----------------------------------------------------------------------------------------------------------------
Burger Creek..........................     10240007           24  Secondary Contact Recreation
Deer Creek............................     10240007           18  Primary Contact Recreation
Fisher Creek..........................     10240007           28  Primary Contact Recreation
Illinois Creek........................     10240007           30  Primary Contact Recreation
Rattlesnake Creek.....................     10240007           27  Primary Contact Recreation
Rock Creek............................     10240007           20  Primary Contact Recreation
Tennessee Creek.......................     10240007           29  Primary Contact Recreation
Turkey Creek..........................     10240007            4  Primary Contact Recreation
Turkey Creek..........................     10240007            5  Primary Contact Recreation
Wildcat Creek.........................     10240007           23  Primary Contact Recreation
Wildcat Creek.........................     10240007           22  Primary Contact Recreation
Wolf Pen Creek........................     10240007           25  Primary Contact Recreation
----------------------------------------------------------------------------------------------------------------
                                              Subbasin: Big Nemaha
----------------------------------------------------------------------------------------------------------------
Noharts Creek.........................     10240008           42  Primary Contact Recreation
Pedee Creek...........................     10240008           41  Primary Contact Recreation
Pony Creek............................     10240008           38  Primary Contact Recreation
Roys Creek............................     10240008           40  Primary Contact Recreation
----------------------------------------------------------------------------------------------------------------
                                          Subbasin: Independence--Sugar
----------------------------------------------------------------------------------------------------------------
Brush Creek...........................     10240011           26  Primary Contact Recreation
Deer Creek............................     10240011           32  Primary Contact Recreation
Fivemile Creek........................     10240011           35  Primary Contact Recreation
Independence Creek, North Branch......     10240011           29  Primary Contact Recreation
Jordan Creek..........................     10240011           30  Primary Contact Recreation
Owl Creek.............................     10240011           33  Primary Contact Recreation
Rock Creek............................     10240011           21  Primary Contact Recreation
Salt Creek............................     10240011           34  Primary Contact Recreation
Smith Creek...........................     10240011           28  Primary Contact Recreation
Three Mile Creek......................     10240011           36  Primary Contact Recreation
Walnut Creek..........................     10240011           23  Primary Contact Recreation
Walnut Creek..........................     10240011           25  Primary Contact Recreation
White Clay Creek......................     10240011           31  Primary Contact Recreation
White Clay Creek......................     10240011         9031  Primary Contact Recreation
Whiskey Creek.........................     10240011          235  Primary Contact Recreation
Whiskey Creek.........................     10240011         9235  Primary Contact Recreation
----------------------------------------------------------------------------------------------------------------
                                        Subbasin: Lower Missouri--Crooked
----------------------------------------------------------------------------------------------------------------
Brush Creek...........................     10300101           54  Primary Contact Recreation
Camp Branch...........................     10300101           56  Primary Contact Recreation
Coffee Creek..........................     10300101           57  Primary Contact Recreation
Dyke Branch...........................     10300101           55  Primary Contact Recreation
Indian Creek..........................     10300101           32  Primary Contact Recreation
Negro Creek...........................     10300101           58  Primary Contact Recreation
Tomahawk Creek........................     10300101           53  Primary Contact Recreation
----------------------------------------------------------------------------------------------------------------
                                                  Basin: Neosho
 
                                           Subbasin: Neosho Headwaters
----------------------------------------------------------------------------------------------------------------
Allen Creek...........................     11070201            5  Primary Contact Recreation
Badger Creek..........................     11070201           45  Primary Contact Recreation
Big John Creek........................     11070201           37  Primary Contact Recreation
Bluff Creek...........................     11070201            8  Primary Contact Recreation
Crooked Creek.........................     11070201           35  Primary Contact Recreation
Dows Creek............................     11070201            3  Primary Contact Recreation
Dows Creek............................     11070201            4  Primary Contact Recreation
Eagle Creek...........................     11070201           25  Primary Contact Recreation
Eagle Creek, South....................     11070201           47  Primary Contact Recreation
East Creek............................     11070201           39  Primary Contact Recreation
Elm Creek.............................     11070201           36  Primary Contact Recreation
Fourmile Creek........................     11070201           24  Primary Contact Recreation
Fourmile Creek........................     11070201           48  Primary Contact Recreation
Haun Creek............................     11070201           29  Primary Contact Recreation
Horse Creek...........................     11070201           33  Primary Contact Recreation
Kahola Creek..........................     11070201           43  Primary Contact Recreation
Lairds Creek..........................     11070201           30  Primary Contact Recreation
Lanos Creek...........................     11070201           21  Primary Contact Recreation

[[Page 462]]

 
Lebo Creek............................     11070201           51  Primary Contact Recreation
Munkers Creek, East Branch............     11070201           31  Primary Contact Recreation
Munkers Creek, Middle Branch..........     11070201           32  Primary Contact Recreation
Neosho River, East Fork...............     11070201           18  Primary Contact Recreation
Neosho River, West Fork...............     11070201           28  Primary Contact Recreation
Parkers Creek.........................     11070201           27  Primary Contact Recreation
Plum Creek............................     11070201           50  Primary Contact Recreation
Plumb Creek...........................     11070201           49  Primary Contact Recreation
Rock Creek............................     11070201            7  Primary Contact Recreation
Rock Creek............................     11070201            9  Primary Contact Recreation
Rock Creek, East Branch...............     11070201           34  Primary Contact Recreation
Spring Creek..........................     11070201           40  Primary Contact Recreation
Stillman Creek........................     11070201           44  Primary Contact Recreation
Taylor Creek..........................     11070201           46  Primary Contact Recreation
Walker Branch.........................     11070201           42  Primary Contact Recreation
Wolf Creek............................     11070201           41  Primary Contact Recreation
Wrights Creek.........................     11070201           38  Primary Contact Recreation
----------------------------------------------------------------------------------------------------------------
                                           Subbasin: Upper Cottonwood
----------------------------------------------------------------------------------------------------------------
Antelope Creek........................     11070202           19  Primary Contact Recreation
Bills Creek...........................     11070202           30  Primary Contact Recreation
Bruno Creek...........................     11070202           27  Primary Contact Recreation
Catlin Creek..........................     11070202           20  Primary Contact Recreation
Clear Creek...........................     11070202            5  Primary Contact Recreation
Clear Creek, East Branch..............     11070202           24  Primary Contact Recreation
Coon Creek............................     11070202           32  Primary Contact Recreation
Cottonwood River, South...............     11070202           17  Primary Contact Recreation
Cottonwood River, South...............     11070202           18  Primary Contact Recreation
Doyle Creek...........................     11070202           21  Primary Contact Recreation
French Creek..........................     11070202           16  Primary Contact Recreation
Mud Creek.............................     11070202            6  Primary Contact Recreation
Perry Creek...........................     11070202           23  Primary Contact Recreation
Spring Branch.........................     11070202           26  Primary Contact Recreation
Spring Creek..........................     11070202           28  Primary Contact Recreation
Spring Creek..........................     11070202           29  Primary Contact Recreation
Stony Brook...........................     11070202           25  Primary Contact Recreation
Turkey Creek..........................     11070202           31  Primary Contact Recreation
----------------------------------------------------------------------------------------------------------------
                                           Subbasin: Lower Cottonwood
----------------------------------------------------------------------------------------------------------------
Beaver Creek..........................     11070203           29  Primary Contact Recreation
Bloody Creek..........................     11070203           40  Primary Contact Recreation
Buck Creek............................     11070203           39  Primary Contact Recreation
Buckeye Creek.........................     11070203           44  Primary Contact Recreation
Bull Creek............................     11070203           26  Primary Contact Recreation
Camp Creek............................     11070203           14  Primary Contact Recreation
Coal Creek............................     11070203           43  Primary Contact Recreation
Collett Creek.........................     11070203           21  Primary Contact Recreation
Corn Creek............................     11070203           47  Primary Contact Recreation
Coyne Branch..........................     11070203           33  Primary Contact Recreation
Crocker Creek.........................     11070203           46  Primary Contact Recreation
Dodds Creek...........................     11070203           15  Primary Contact Recreation
Fox Creek.............................     11070203           19  Primary Contact Recreation
French Creek..........................     11070203           32  Primary Contact Recreation
Gannon Creek..........................     11070203           24  Primary Contact Recreation
Gould Creek...........................     11070203           36  Primary Contact Recreation
Holmes Creek..........................     11070203           35  Primary Contact Recreation
Jacob Creek...........................     11070203           28  Primary Contact Recreation
Kirk Creek............................     11070203           48  Primary Contact Recreation
Little Cedar Creek....................     11070203           11  Primary Contact Recreation
Little Cedar Creek....................     11070203           45  Primary Contact Recreation
Middle Creek..........................     11070203            5  Primary Contact Recreation
Mile-and-a-half Creek.................     11070203           13  Secondary Contact Recreation
Moon Creek............................     11070203           31  Primary Contact Recreation
Mulvane Creek.........................     11070203           22  Primary Contact Recreation
Peyton Creek..........................     11070203           25  Primary Contact Recreation
Phenis Creek..........................     11070203           30  Primary Contact Recreation
Pickett Creek.........................     11070203           18  Primary Contact Recreation
Prather Creek.........................     11070203           23  Primary Contact Recreation
Rock Creek............................     11070203           37  Primary Contact Recreation
Schaffer Creek........................     11070203           17  Primary Contact Recreation
School Creek..........................     11070203           16  Primary Contact Recreation
Sharpes Creek.........................     11070203           38  Primary Contact Recreation

[[Page 463]]

 
Silver Creek..........................     11070203           34  Primary Contact Recreation
Spring Creek..........................     11070203           41  Primary Contact Recreation
Stout Run.............................     11070203           27  Primary Contact Recreation
Stribby Creek.........................     11070203           20  Primary Contact Recreation
----------------------------------------------------------------------------------------------------------------
                                             Subbasin: Upper Neosho
----------------------------------------------------------------------------------------------------------------
Badger Creek..........................     11070204           42  Primary Contact Recreation
Big Creek, North......................     11070204           16  Primary Contact Recreation
Big Creek, South......................     11070204           17  Primary Contact Recreation
Bloody Run............................     11070204           25  Primary Contact Recreation
Carlyle Creek.........................     11070204           47  Primary Contact Recreation
Charles Branch........................     11070204           27  Primary Contact Recreation
Cherry Creek..........................     11070204           20  Primary Contact Recreation
Coal Creek............................     11070204            4  Primary Contact Recreation
Cottonwood Creek......................     11070204           48  Primary Contact Recreation
Crooked Creek.........................     11070204           44  Primary Contact Recreation
Draw Creek............................     11070204           34  Primary Contact Recreation
Goose Creek...........................     11070204           29  Primary Contact Recreation
Long Creek............................     11070204           12  Primary Contact Recreation
Martin Creek..........................     11070204           49  Primary Contact Recreation
Mud Creek.............................     11070204           26  Primary Contact Recreation
Mud Creek.............................     11070204           31  Primary Contact Recreation
Onion Creek...........................     11070204           24  Primary Contact Recreation
Owl Creek.............................     11070204           19  Primary Contact Recreation
Owl Creek.............................     11070204           21  Primary Contact Recreation
Plum Creek............................     11070204           22  Primary Contact Recreation
Rock Creek............................     11070204            7  Primary Contact Recreation
Rock Creek............................     11070204           23  Primary Contact Recreation
Rock Creek............................     11070204           15  Primary Contact Recreation
School Creek..........................     11070204           38  Primary Contact Recreation
Scott Creek...........................     11070204           40  Primary Contact Recreation
Slack Creek...........................     11070204           30  Primary Contact Recreation
Spring Creek..........................     11070204           46  Primary Contact Recreation
Sutton Creek..........................     11070204           35  Primary Contact Recreation
Turkey Branch.........................     11070204           28  Primary Contact Recreation
Turkey Creek..........................     11070204           18  Primary Contact Recreation
Turkey Creek..........................     11070204           32  Primary Contact Recreation
Twiss Creek...........................     11070204           45  Primary Contact Recreation
Varvel Creek..........................     11070204           43  Primary Contact Recreation
Village Creek.........................     11070204           33  Primary Contact Recreation
Wolf Creek............................     11070204           37  Primary Contact Recreation
----------------------------------------------------------------------------------------------------------------
                                             Subbasin: Middle Neosho
----------------------------------------------------------------------------------------------------------------
Bachelor Creek........................     11070205           40  Primary Contact Recreation
Canville Creek........................     11070205           16  Primary Contact Recreation
Center Creek..........................     11070205           25  Primary Contact Recreation
Cherry Creek..........................     11070205            4  Primary Contact Recreation
Deer Creek............................     11070205           27  Primary Contact Recreation
Denny Branch..........................     11070205           31  Primary Contact Recreation
Elk Creek.............................     11070205           19  Primary Contact Recreation
Elm Creek.............................     11070205           43  Primary Contact Recreation
Flat Rock Creek.......................     11070205           12  Primary Contact Recreation
Flat Rock Creek.......................     11070205           14  Primary Contact Recreation
Fourmile Creek........................     11070205           49  Primary Contact Recreation
Grindstone Creek......................     11070205           42  Primary Contact Recreation
Hickory Creek.........................     11070205           10  Primary Contact Recreation
Lake Creek............................     11070205           24  Primary Contact Recreation
Lightning Creek.......................     11070205            6  Primary Contact Recreation
Lightning Creek.......................     11070205            8  Primary Contact Recreation
Limestone Creek.......................     11070205            7  Primary Contact Recreation
Little Cherry Creek...................     11070205           32  Primary Contact Recreation
Little Elk Creek......................     11070205           47  Primary Contact Recreation
Little Fly Creek......................     11070205           26  Secondary Contact Recreation
Little Labette Creek..................     11070205           23  Primary Contact Recreation
Little Walnut Creek...................     11070205           46  Primary Contact Recreation
Litup Creek...........................     11070205           36  Primary Contact Recreation
Mulberry Creek........................     11070205           35  Primary Contact Recreation
Murphy Creek..........................     11070205           41  Primary Contact Recreation
Ogeese Creek..........................     11070205           38  Primary Contact Recreation
Pecan Creek...........................     11070205           45  Primary Contact Recreation
Plum Creek............................     11070205           34  Primary Contact Recreation
Rock Creek............................     11070205           48  Primary Contact Recreation

[[Page 464]]

 
Spring Creek..........................     11070205           30  Primary Contact Recreation
Stink Branch..........................     11070205           37  Primary Contact Recreation
Thunderbolt Creek.....................     11070205           44  Primary Contact Recreation
Tolen Creek...........................     11070205           39  Primary Contact Recreation
Town Creek............................     11070205           28  Primary Contact Recreation
Turkey Creek..........................     11070205           29  Primary Contact Recreation
Walnut Creek..........................     11070205           13  Primary Contact Recreation
Wolf Creek............................     11070205           33  Primary Contact Recreation
----------------------------------------------------------------------------------------------------------------
                                         Subbasin: Lake O' the Cherokees
----------------------------------------------------------------------------------------------------------------
Fourmile Creek........................     11070206           18  Primary Contact Recreation
Tar Creek.............................     11070206           19  Primary Contact Recreation
----------------------------------------------------------------------------------------------------------------
                                                Subbasin: Spring
----------------------------------------------------------------------------------------------------------------
Little Shawnee Creek..................     11070207           22  Primary Contact Recreation
Long Branch...........................     11070207           21  Primary Contact Recreation
Shawnee Creek.........................     11070207           17  Primary Contact Recreation
Taylor Branch.........................     11070207           25  Primary Contact Recreation
Willow Creek..........................     11070207           20  Primary Contact Recreation
----------------------------------------------------------------------------------------------------------------
                                            Basin: Smoky Hill/Saline
 
                                           Subbasin: Middle Smoky Hill
----------------------------------------------------------------------------------------------------------------
Ash Creek.............................     10260006           37  Primary Contact Recreation
Big Timber Creek......................     10260006           24  Primary Contact Recreation
Big Timber Creek......................     10260006           25  Primary Contact Recreation
Big Timber Creek......................     10260006           27  Primary Contact Recreation
Blood Creek...........................     10260006           35  Secondary Contact Recreation
Buck Creek............................     10260006           29  Primary Contact Recreation
Buffalo Creek.........................     10260006            6  Primary Contact Recreation
Clear Creek...........................     10260006           42  Primary Contact Recreation
Coal Creek............................     10260006           34  Primary Contact Recreation
Cow Creek.............................     10260006           38  Primary Contact Recreation
Eagle Creek...........................     10260006           30  Primary Contact Recreation
Fossil Creek..........................     10260006           13  Primary Contact Recreation
Goose Creek...........................     10260006           39  Primary Contact Recreation
Landon Creek..........................     10260006           31  Primary Contact Recreation
Loss Creek............................     10260006           44  Primary Contact Recreation
Mud Creek.............................     10260006           47  Primary Contact Recreation
Oxide Creek...........................     10260006           45  Primary Contact Recreation
Sellens Creek.........................     10260006           32  Primary Contact Recreation
Shelter Creek.........................     10260006           43  Primary Contact Recreation
Skunk Creek...........................     10260006           48  Primary Contact Recreation
Spring Creek..........................     10260006           41  Primary Contact Recreation
Timber Creek..........................     10260006           26  Primary Contact Recreation
Turkey Creek..........................     10260006           46  Primary Contact Recreation
Unnamed Stream........................     10260006           20  Primary Contact Recreation
Unnamed Stream........................     10260006           23  Primary Contact Recreation
Unnamed Stream........................     10260006           28  Primary Contact Recreation
Wilson Creek..........................     10260006           40  Primary Contact Recreation
Wolf Creek............................     10260006           36  Primary Contact Recreation
----------------------------------------------------------------------------------------------------------------
                                           Subbasin: Lower Smoky Hill
----------------------------------------------------------------------------------------------------------------
Basket Creek..........................     10260008           40  Primary Contact Recreation
Battle Creek..........................     10260008           23  Primary Contact Recreation
Carry Creek...........................     10260008           32  Primary Contact Recreation
Carry Creek...........................     10260008           35  Primary Contact Recreation
Chapman Creek, West...................     10260008            5  Primary Contact Recreation
Dry Creek.............................     10260008           36  Primary Contact Recreation
Dry Creek, East.......................     10260008           43  Primary Contact Recreation
Hobbs Creek...........................     10260008           48  Primary Contact Recreation
Holland Creek.........................     10260008           25  Primary Contact Recreation
Holland Creek, East...................     10260008           27  Primary Contact Recreation
Holland Creek, West...................     10260008           26  Primary Contact Recreation
Kentucky Creek........................     10260008           17  Secondary Contact Recreation
Kentucky Creek, West..................     10260008           54  Primary Contact Recreation
Lone Tree Creek.......................     10260008           41  Primary Contact Recreation
Lyon Creek, West Branch...............     10260008           34  Primary Contact Recreation
Mcallister Creek......................     10260008           49  Primary Contact Recreation
Middle Branch.........................     10260008           58  Primary Contact Recreation
Mud Creek.............................     10260008            8  Primary Contact Recreation

[[Page 465]]

 
Otter Creek...........................     10260008           42  Primary Contact Recreation
Paint Creek...........................     10260008           52  Secondary Contact Recreation
Pewee Creek...........................     10260008           56  Primary Contact Recreation
Sand Creek............................     10260008           46  Primary Contact Recreation
Sharps Creek..........................     10260008           16  Secondary Contact Recreation
Spring Creek..........................     10260008           45  Primary Contact Recreation
Stag Creek............................     10260008           19  Primary Contact Recreation
Turkey Creek..........................     10260008           28  Primary Contact Recreation
Turkey Creek..........................     10260008           30  Primary Contact Recreation
Turkey Creek, East....................     10260008           50  Primary Contact Recreation
Turkey Creek, West Branch.............     10260008           29  Primary Contact Recreation
Unnamed Stream........................     10260008           K3  Primary Contact Recreation
Unnamed Stream........................     10260008           K4  Primary Contact Recreation
Unnamed Stream........................     10260008          K24  Primary Contact Recreation
Wiley Creek...........................     10260008           47  Primary Contact Recreation
----------------------------------------------------------------------------------------------------------------
                                             Subbasin: Upper Saline
----------------------------------------------------------------------------------------------------------------
Cedar Creek...........................     10260009           30  Secondary Contact Recreation
Chalk Creek...........................     10260009           26  Primary Contact Recreation
Coyote Creek..........................     10260009           23  Primary Contact Recreation
Eagle Creek...........................     10260009            6  Primary Contact Recreation
Happy Creek...........................     10260009           25  Primary Contact Recreation
Paradise Creek........................     10260009            5  Primary Contact Recreation
Salt Creek............................     10260009           20  Primary Contact Recreation
Spring Creek, East....................     10260009           10  Primary Contact Recreation
Sweetwater Creek......................     10260009           29  Primary Contact Recreation
Trego Creek...........................     10260009           19  Primary Contact Recreation
Unnamed Stream........................     10260009           13  Primary Contact Recreation
Wild Horse Creek......................     10260009           27  Primary Contact Recreation
----------------------------------------------------------------------------------------------------------------
                                             Subbasin: Lower Saline
----------------------------------------------------------------------------------------------------------------
Bacon Creek...........................     10260010            7  Primary Contact Recreation
Blue Stem Creek.......................     10260010           33  Primary Contact Recreation
Coon Creek............................     10260010           31  Primary Contact Recreation
Dry Creek.............................     10260010           29  Secondary Contact Recreation
Eff Creek.............................     10260010           23  Primary Contact Recreation
Elkhorn Creek.........................     10260010           17  Primary Contact Recreation
Elkhorn Creek, West...................     10260010           38  Primary Contact Recreation
Fourmile Creek........................     10260010           30  Primary Contact Recreation
Lost Creek............................     10260010           34  Secondary Contact Recreation
Owl Creek.............................     10260010           18  Primary Contact Recreation
Owl Creek.............................     10260010           39  Primary Contact Recreation
Ralston Creek.........................     10260010           28  Primary Contact Recreation
Shaw Creek............................     10260010           41  Primary Contact Recreation
Spillman Creek........................     10260010            6  Primary Contact Recreation
Spillman Creek, North Branch..........     10260010            8  Primary Contact Recreation
Spring Creek..........................     10260010           16  Primary Contact Recreation
Spring Creek..........................     10260010           19  Primary Contact Recreation
Spring Creek..........................     10260010           20  Primary Contact Recreation
Spring Creek..........................     10260010           24  Primary Contact Recreation
Spring Creek..........................     10260010           26  Primary Contact Recreation
Spring Creek..........................     10260010           27  Primary Contact Recreation
Table Rock Creek......................     10260010           40  Primary Contact Recreation
Trail Creek...........................     10260010           32  Secondary Contact Recreation
Twelvemile Creek......................     10260010           36  Primary Contact Recreation
Twin Creek, West......................     10260010           37  Secondary Contact Recreation
West Spring Creek.....................     10260010           25  Primary Contact Recreation
Wolf Creek............................     10260010           10  Primary Contact Recreation
Wolf Creek, East Fork.................     10260010           11  Primary Contact Recreation
Wolf Creek, West Fork.................     10260010           12  Primary Contact Recreation
Yauger Creek..........................     10260010           35  Primary Contact Recreation
----------------------------------------------------------------------------------------------------------------
                                                 Basin: Solomon
 
                                       Subbasin: Upper North Fork Solomon
----------------------------------------------------------------------------------------------------------------
Ash Creek.............................     10260011           24  Primary Contact Recreation
Beaver Creek..........................     10260011           23  Primary Contact Recreation
Big Timber Creek......................     10260011            8  Primary Contact Recreation
Bow Creek.............................     10260011           15  Primary Contact Recreation
Cactus Creek..........................     10260011           28  Primary Contact Recreation
Crooked Creek.........................     10260011            6  Primary Contact Recreation
Elk Creek.............................     10260011           12  Primary Contact Recreation

[[Page 466]]

 
Elk Creek, East.......................     10260011           25  Primary Contact Recreation
Game Creek............................     10260011           10  Primary Contact Recreation
Game Creek............................     10260011           27  Primary Contact Recreation
Lost Creek............................     10260011           20  Primary Contact Recreation
Sand Creek............................     10260011           26  Primary Contact Recreation
Scull Creek...........................     10260011           21  Primary Contact Recreation
Spring Creek..........................     10260011           19  Primary Contact Recreation
Wolf Creek............................     10260011           22  Primary Contact Recreation
----------------------------------------------------------------------------------------------------------------
                                       Subbasin: Lower North Fork Solomon
----------------------------------------------------------------------------------------------------------------
Beaver Creek..........................     10260012           10  Primary Contact Recreation
Beaver Creek, East Branch.............     10260012           11  Primary Contact Recreation
Beaver Creek, Middle..................     10260012           12  Primary Contact Recreation
Beaver Creek, Middle..................     10260012           13  Primary Contact Recreation
Beaver Creek, West....................     10260012           14  Secondary Contact Recreation
Big Creek.............................     10260012           26  Primary Contact Recreation
Boughton Creek........................     10260012           34  Primary Contact Recreation
Buck Creek............................     10260012           43  Secondary Contact Recreation
Cedar Creek...........................     10260012           16  Primary Contact Recreation
Cedar Creek...........................     10260012           18  Primary Contact Recreation
Cedar Creek, East.....................     10260012           17  Primary Contact Recreation
Cedar Creek, East Middle..............     10260012           37  Primary Contact Recreation
Cedar Creek, Middle...................     10260012           19  Secondary Contact Recreation
Deer Creek............................     10260012           23  Primary Contact Recreation
Deer Creek............................     10260012           25  Primary Contact Recreation
Deer Creek............................     10260012           27  Primary Contact Recreation
Deer Creek............................     10260012           29  Primary Contact Recreation
Deer Creek............................     10260012           31  Primary Contact Recreation
Dry Creek.............................     10260012           42  Primary Contact Recreation
Glen Rock Creek.......................     10260012           41  Primary Contact Recreation
Lawrence Creek........................     10260012           44  Primary Contact Recreation
Lindley Creek.........................     10260012           45  Primary Contact Recreation
Little Oak Creek......................     10260012            3  Primary Contact Recreation
Medicine Creek........................     10260012           33  Primary Contact Recreation
Oak Creek.............................     10260012            2  Primary Contact Recreation
Oak Creek.............................     10260012            4  Primary Contact Recreation
Oak Creek, East.......................     10260012           40  Primary Contact Recreation
Oak Creek, West.......................     10260012           39  Secondary Contact Recreation
Plotner Creek.........................     10260012           30  Primary Contact Recreation
Plum Creek............................     10260012           20  Primary Contact Recreation
Spring Creek..........................     10260012            8  Secondary Contact Recreation
Spring Creek..........................     10260012           28  Secondary Contact Recreation
Starvation Creek......................     10260012           38  Primary Contact Recreation
Turner Creek..........................     10260012           24  Primary Contact Recreation
----------------------------------------------------------------------------------------------------------------
                                       Subbasin: Upper South Fork Solomon
----------------------------------------------------------------------------------------------------------------
Spring Creek..........................     10260013            5  Primary Contact Recreation
----------------------------------------------------------------------------------------------------------------
                                       Subbasin: Lower South Fork Solomon
----------------------------------------------------------------------------------------------------------------
Ash Creek.............................     10260014           22  Primary Contact Recreation
Boxelder Creek........................     10260014           14  Primary Contact Recreation
Carr Creek............................     10260014           21  Primary Contact Recreation
Covert Creek..........................     10260014           19  Primary Contact Recreation
Crooked Creek.........................     10260014           27  Primary Contact Recreation
Dibble Creek..........................     10260014           23  Primary Contact Recreation
Elm Creek.............................     10260014           15  Primary Contact Recreation
Jim Creek.............................     10260014           25  Primary Contact Recreation
Kill Creek............................     10260014           18  Primary Contact Recreation
Kill Creek, East......................     10260014           28  Primary Contact Recreation
Lost Creek............................     10260014           13  Primary Contact Recreation
Lucky Creek...........................     10260014           26  Primary Contact Recreation
Medicine Creek........................     10260014           16  Primary Contact Recreation
Medicine Creek........................     10260014           17  Primary Contact Recreation
Robbers Roost Creek...................     10260014           24  Primary Contact Recreation
Twin Creek............................     10260014           20  Primary Contact Recreation
Twin Creek, East......................     10260014           29  Primary Contact Recreation
----------------------------------------------------------------------------------------------------------------
                                             Subbasin: Solomon River
----------------------------------------------------------------------------------------------------------------
Cow Creek.............................     10260015           28  Primary Contact Recreation
Fifth Creek...........................     10260015           45  Secondary Contact Recreation
Granite Creek.........................     10260015           24  Secondary Contact Recreation

[[Page 467]]

 
Leban Creek...........................     10260015           41  Secondary Contact Recreation
Mill Creek............................     10260015           38  Secondary Contact Recreation
Mulberry Creek........................     10260015           36  Secondary Contact Recreation
Pipe Creek............................     10260015            9  Primary Contact Recreation
Walnut Creek..........................     10260015           26  Secondary Contact Recreation
----------------------------------------------------------------------------------------------------------------
                                              Basin: Upper Arkansas
 
                                                Subbasin: Buckner
----------------------------------------------------------------------------------------------------------------
Buckner Creek, South Fork.............     11030006            6  Primary Contact Recreation
Duck Creek............................     11030006            8  Secondary Contact Recreation
Elm Creek.............................     11030006            5  Primary Contact Recreation
Saw Log Creek.........................     11030006            3  Primary Contact Recreation
Saw Log Creek.........................     11030006            4  Secondary Contact Recreation
----------------------------------------------------------------------------------------------------------------
                                          Subbasin: Lower Walnut Creek
----------------------------------------------------------------------------------------------------------------
Alexander Dry Creek...................     11030008            7  Secondary Contact Recreation
Bazine Creek..........................     11030008            9  Secondary Contact Recreation
Boot Creek............................     11030008           15  Secondary Contact Recreation
Dry Creek.............................     11030008           14  Secondary Contact Recreation
Dry Walnut Creek......................     11030008           13  Secondary Contact Recreation
Otter Creek...........................     11030008           12  Primary Contact Recreation
Sand Creek............................     11030008            3  Secondary Contact Recreation
Sandy Creek...........................     11030008           11  Secondary Contact Recreation
Walnut Creek..........................     11030008            1  Primary Contact Recreation
Walnut Creek..........................     11030008            2  Primary Contact Recreation
Walnut Creek..........................     11030008            4  Primary Contact Recreation
----------------------------------------------------------------------------------------------------------------
                                             Basin: Upper Republican
 
                                         Subbasin: South Fork Republican
----------------------------------------------------------------------------------------------------------------
Big Timber Creek......................     10250003           61  Secondary Contact Recreation
----------------------------------------------------------------------------------------------------------------
                                                Subbasin: Beaver
----------------------------------------------------------------------------------------------------------------
Beaver Creek..........................     10250014            2  Secondary Contact Recreation
----------------------------------------------------------------------------------------------------------------
                                                Basin: Verdigris
 
                                            Subbasin: Upper Verdigris
----------------------------------------------------------------------------------------------------------------
Bachelor Creek........................     11070101           21  Primary Contact Recreation
Bernard Creek.........................     11070101           24  Secondary Contact Recreation
Big Cedar Creek.......................     11070101           39  Primary Contact Recreation
Brazil Creek..........................     11070101           31  Primary Contact Recreation
Buffalo Creek.........................     11070101            2  Primary Contact Recreation
Buffalo Creek, West...................     11070101           34  Primary Contact Recreation
Cedar Creek...........................     11070101           32  Primary Contact Recreation
Chetopa Creek.........................     11070101           22  Primary Contact Recreation
Crooked Creek.........................     11070101           38  Primary Contact Recreation
Dry Creek.............................     11070101           27  Primary Contact Recreation
Elder Branch..........................     11070101           37  Primary Contact Recreation
Fancy Creek...........................     11070101           28  Primary Contact Recreation
Greenhall Creek.......................     11070101           26  Primary Contact Recreation
Holderman Creek.......................     11070101           47  Primary Contact Recreation
Homer Creek...........................     11070101           20  Primary Contact Recreation
Kelly Branch..........................     11070101           42  Primary Contact Recreation
Kuntz Branch..........................     11070101           29  Primary Contact Recreation
Little Sandy Creek....................     11070101           33  Primary Contact Recreation
Long Creek............................     11070101           45  Primary Contact Recreation
Miller Creek..........................     11070101           30  Primary Contact Recreation
Moon Branch...........................     11070101           43  Primary Contact Recreation
Onion Creek...........................     11070101           23  Primary Contact Recreation
Rock Creek............................     11070101           14  Primary Contact Recreation
Ross Branch...........................     11070101           35  Primary Contact Recreation
Sandy Creek...........................     11070101            4  Primary Contact Recreation
Shaw Creek............................     11070101           40  Primary Contact Recreation
Slate Creek...........................     11070101           25  Primary Contact Recreation
Snake Creek...........................     11070101           36  Primary Contact Recreation
Tate Branch Creek.....................     11070101           44  Primary Contact Recreation
Van Horn Creek........................     11070101           46  Primary Contact Recreation
Verdigris River, Bernard Branch.......     11070101           16  Primary Contact Recreation
Verdigris River, North Branch.........     11070101           13  Primary Contact Recreation
Verdigris River, North Branch.........     11070101           15  Primary Contact Recreation

[[Page 468]]

 
Walnut Creek..........................     11070101           19  Primary Contact Recreation
West Creek............................     11070101           17  Primary Contact Recreation
Wolf Creek............................     11070101           41  Primary Contact Recreation
----------------------------------------------------------------------------------------------------------------
                                                 Subbasin: Fall
----------------------------------------------------------------------------------------------------------------
Battle Creek..........................     11070102           18  Primary Contact Recreation
Burnt Creek...........................     11070102           24  Primary Contact Recreation
Clear Creek...........................     11070102           37  Primary Contact Recreation
Coon Creek............................     11070102           25  Primary Contact Recreation
Coon Creek............................     11070102           36  Primary Contact Recreation
Crain Creek...........................     11070102           32  Primary Contact Recreation
Honey Creek...........................     11070102           26  Primary Contact Recreation
Indian Creek..........................     11070102           15  Primary Contact Recreation
Ivanpah Creek.........................     11070102           19  Primary Contact Recreation
Kitty Creek...........................     11070102           27  Primary Contact Recreation
Little Indian Creek...................     11070102           34  Primary Contact Recreation
Little Salt Creek.....................     11070102           35  Primary Contact Recreation
Oleson Creek..........................     11070102           21  Primary Contact Recreation
Otis Creek............................     11070102           20  Primary Contact Recreation
Plum Creek............................     11070102           30  Primary Contact Recreation
Rainbow Creek, East...................     11070102           17  Primary Contact Recreation
Salt Creek............................     11070102           14  Primary Contact Recreation
Salt Creek............................     11070102           38  Primary Contact Recreation
Silver Creek..........................     11070102           33  Primary Contact Recreation
Snake Creek...........................     11070102           31  Primary Contact Recreation
Spring Creek..........................     11070102           12  Primary Contact Recreation
Swing Creek...........................     11070102          989  Primary Contact Recreation
Tadpole Creek.........................     11070102           29  Primary Contact Recreation
Watson Branch.........................     11070102           23  Primary Contact Recreation
----------------------------------------------------------------------------------------------------------------
                                           Subbasin: Middle Verdigris
----------------------------------------------------------------------------------------------------------------
Big Creek.............................     11070103           21  Primary Contact Recreation
Biscuit Creek.........................     11070103           53  Primary Contact Recreation
Bluff Run.............................     11070103           54  Primary Contact Recreation
Choteau Creek.........................     11070103           63  Primary Contact Recreation
Claymore Creek........................     11070103           50  Primary Contact Recreation
Deadman Creek.........................     11070103           57  Primary Contact Recreation
Deer Creek............................     11070103           51  Primary Contact Recreation
Drum Creek............................     11070103           34  Primary Contact Recreation
Dry Creek.............................     11070103           37  Primary Contact Recreation
Fawn Creek............................     11070103           56  Primary Contact Recreation
Mud Creek.............................     11070103           59  Primary Contact Recreation
Onion Creek...........................     11070103           39  Primary Contact Recreation
Potato Creek..........................     11070103           31  Primary Contact Recreation
Prior Creek...........................     11070103           62  Primary Contact Recreation
Pumpkin Creek.........................     11070103           28  Primary Contact Recreation
Richland Creek........................     11070103           49  Primary Contact Recreation
Rock Creek............................     11070103           58  Primary Contact Recreation
Rock Creek............................     11070103           61  Primary Contact Recreation
Snow Creek............................     11070103           25  Primary Contact Recreation
Spring Creek..........................     11070103           55  Primary Contact Recreation
Sycamore Creek........................     11070103           52  Primary Contact Recreation
Wildcat Creek.........................     11070103           60  Primary Contact Recreation
----------------------------------------------------------------------------------------------------------------
                                                  Subbasin: Elk
----------------------------------------------------------------------------------------------------------------
Bachelor Creek........................     11070104           25  Primary Contact Recreation
Bloody Run............................     11070104           26  Primary Contact Recreation
Bull Creek............................     11070104           33  Primary Contact Recreation
Card Creek............................     11070104           19  Primary Contact Recreation
Chetopa Creek.........................     11070104           18  Primary Contact Recreation
Clear Creek...........................     11070104           30  Primary Contact Recreation
Clear Creek...........................     11070104           32  Primary Contact Recreation
Coffey Branch.........................     11070104           20  Primary Contact Recreation
Duck Creek............................     11070104            3  Primary Contact Recreation
Elk River, Mound Branch...............     11070104           15  Primary Contact Recreation
Elk River, South Branch...............     11070104           38  Primary Contact Recreation
Elk River, Rowe Branch................     11070104           39  Primary Contact Recreation
Elm Branch............................     11070104           23  Primary Contact Recreation
Hickory Creek.........................     11070104           28  Primary Contact Recreation
Hitchen Creek.........................     11070104            7  Primary Contact Recreation
Hitchen Creek, East...................     11070104           35  Primary Contact Recreation

[[Page 469]]

 
Little Duck Creek.....................     11070104           24  Primary Contact Recreation
Little Hitchen Creek..................     11070104           37  Primary Contact Recreation
Painterhood Creek.....................     11070104            5  Primary Contact Recreation
Painterhood Creek, East...............     11070104           36  Primary Contact Recreation
Pan Creek.............................     11070104           27  Primary Contact Recreation
Pawpaw Creek..........................     11070104           11  Primary Contact Recreation
Racket Creek..........................     11070104           21  Primary Contact Recreation
Rock Creek............................     11070104           13  Primary Contact Recreation
Salt Creek............................     11070104           17  Primary Contact Recreation
Salt Creek, South.....................     11070104           29  Primary Contact Recreation
Skull Creek...........................     11070104           31  Primary Contact Recreation
Snake Creek...........................     11070104           34  Primary Contact Recreation
Sycamore Creek........................     11070104           22  Primary Contact Recreation
Wildcat Creek.........................     11070104           16  Primary Contact Recreation
----------------------------------------------------------------------------------------------------------------
                                                 Subbasin: Caney
----------------------------------------------------------------------------------------------------------------
Bachelor Creek........................     11070106           47  Primary Contact Recreation
Bee Creek.............................     11070106            9  Primary Contact Recreation
California Creek......................     11070106           48  Primary Contact Recreation
Caney Creek...........................     11070106           12  Primary Contact Recreation
Caney River, East Fork................     11070106           52  Primary Contact Recreation
Caney Creek, North....................     11070106           11  Primary Contact Recreation
Cedar Creek...........................     11070106           30  Primary Contact Recreation
Cedar Creek...........................     11070106           32  Primary Contact Recreation
Cheyenne Creek........................     11070106           40  Primary Contact Recreation
Coon Creek............................     11070106           36  Primary Contact Recreation
Corum Creek...........................     11070106           51  Primary Contact Recreation
Cotton Creek..........................     11070106           38  Primary Contact Recreation
Cotton Creek, North Fork..............     11070106           37  Primary Contact Recreation
Dry Creek.............................     11070106           29  Primary Contact Recreation
Fly Creek.............................     11070106           46  Primary Contact Recreation
Illinois Creek........................     11070106           39  Primary Contact Recreation
Jim Creek.............................     11070106           49  Primary Contact Recreation
Lake Creek............................     11070106           34  Primary Contact Recreation
Otter Creek...........................     11070106           33  Primary Contact Recreation
Pool Creek............................     11070106           43  Primary Contact Recreation
Possum Trot Creek.....................     11070106           74  Primary Contact Recreation
Rock Creek............................     11070106           28  Primary Contact Recreation
Spring Creek..........................     11070106           44  Primary Contact Recreation
Spring Creek..........................     11070106           53  Primary Contact Recreation
Squaw Creek...........................     11070106           42  Primary Contact Recreation
Sycamore Creek........................     11070106           31  Primary Contact Recreation
Turkey Creek..........................     11070106           45  Primary Contact Recreation
Union Creek...........................     11070106           41  Primary Contact Recreation
Wolf Creek............................     11070106           35  Primary Contact Recreation
Wolf Creek............................     11070106           50  Primary Contact Recreation
----------------------------------------------------------------------------------------------------------------
                                                  Basin: Walnut
 
                                          Subbasin: Upper Walnut River
----------------------------------------------------------------------------------------------------------------
Badger Creek..........................     11030017           36  Primary Contact Recreation
Bemis Creek...........................     11030017            8  Primary Contact Recreation
Cole Creek............................     11030017           15  Primary Contact Recreation
Constant Creek........................     11030017           41  Primary Contact Recreation
Dry Creek.............................     11030017           27  Primary Contact Recreation
Dry Creek.............................     11030017           32  Primary Contact Recreation
Durechen Creek........................     11030017           12  Primary Contact Recreation
Elm Creek.............................     11030017           43  Primary Contact Recreation
Fourmile Creek........................     11030017           20  Primary Contact Recreation
Gilmore Branch........................     11030017           39  Primary Contact Recreation
Gypsum Creek..........................     11030017           30  Primary Contact Recreation
Henry Creek...........................     11030017           33  Primary Contact Recreation
Lower Branch..........................     11030017           42  Primary Contact Recreation
Prairie Creek.........................     11030017           35  Primary Contact Recreation
Rock Creek............................     11030017           37  Primary Contact Recreation
Sand Creek............................     11030017           29  Primary Contact Recreation
Satchel Creek.........................     11030017           10  Primary Contact Recreation
School Branch.........................     11030017           45  Primary Contact Recreation
Sutton Creek..........................     11030017           40  Primary Contact Recreation
Walnut Creek..........................     11030017           44  Primary Contact Recreation
Whitewater Creek......................     11030017           34  Primary Contact Recreation
Whitewater Creek, East Branch.........     11030017           31  Primary Contact Recreation
Whitewater River, East Branch.........     11030017           22  Primary Contact Recreation

[[Page 470]]

 
Whitewater River, West Branch.........     11030017           24  Primary Contact Recreation
Whitewater River, West Branch.........     11030017           25  Primary Contact Recreation
Wildcat Creek.........................     11030017           26  Primary Contact Recreation
Wildcat Creek, West...................     11030017           28  Primary Contact Recreation
----------------------------------------------------------------------------------------------------------------
                                          Subbasin: Lower Walnut River
----------------------------------------------------------------------------------------------------------------
Black Crook Creek.....................     11030018           18  Primary Contact Recreation
Cedar Creek...........................     11030018           19  Secondary Contact Recreation
Chigger Creek.........................     11030018           21  Primary Contact Recreation
Crooked Creek.........................     11030018           31  Primary Contact Recreation
Durham Creek..........................     11030018           23  Primary Contact Recreation
Dutch Creek...........................     11030018            2  Primary Contact Recreation
Dutch Creek...........................     11030018            4  Primary Contact Recreation
Eightmile Creek.......................     11030018           30  Primary Contact Recreation
Foos Creek............................     11030018           26  Primary Contact Recreation
Hickory Creek.........................     11030018           12  Primary Contact Recreation
Honey Creek...........................     11030018           33  Primary Contact Recreation
Little Dutch Creek....................     11030018           27  Primary Contact Recreation
Lower Dutch Creek.....................     11030018           20  Primary Contact Recreation
Plum Creek............................     11030018           36  Primary Contact Recreation
Polecat Creek.........................     11030018           17  Primary Contact Recreation
Posey Creek...........................     11030018           37  Primary Contact Recreation
Richland Creek........................     11030018           25  Primary Contact Recreation
Rock Creek, North Branch..............     11030018           35  Primary Contact Recreation
Sanford Creek.........................     11030018           29  Primary Contact Recreation
Spring Branch.........................     11030018           32  Primary Contact Recreation
Stalter Branch........................     11030018           24  Primary Contact Recreation
Stewart Creek.........................     11030018           28  Primary Contact Recreation
Swisher Branch........................     11030018           22  Primary Contact Recreation
----------------------------------------------------------------------------------------------------------------
    Total = 1186
----------------------------------------------------------------------------------------------------------------


----------------------------------------------------------------------------------------------------------------
              Lake name                            County                           Designated use
----------------------------------------------------------------------------------------------------------------
                                                 Basin: Cimarron
 
                                     Subbasin: Upper Cimarron (HUC 11040002)
----------------------------------------------------------------------------------------------------------------
Moss Lake East.......................  MORTON.......................  Primary Contact Recreation
Moss Lake West.......................  MORTON.......................  Primary Contact Recreation
----------------------------------------------------------------------------------------------------------------
                                  Subbasin: North Fork Cimarron (HUC 11040006)
----------------------------------------------------------------------------------------------------------------
Russell Lake.........................  STEVENS......................  Primary Contact Recreation
----------------------------------------------------------------------------------------------------------------
                                  Subbasin: Upper Cimarron-Bluff (HUC 11040008)
----------------------------------------------------------------------------------------------------------------
Clark State Fishing Lake.............  CLARK........................  Primary Contact Recreation
Saint Jacob's Well...................  CLARK........................  Primary Contact Recreation
----------------------------------------------------------------------------------------------------------------
                                         Basin: Kansas/Lower Republican
 
                                   Subbasin: Middle Republican (HUC 10250016)
----------------------------------------------------------------------------------------------------------------
Lake Jewell..........................  JEWELL.......................  Primary Contact Recreation
----------------------------------------------------------------------------------------------------------------
                                    Subbasin: Lower Republican (HUC 10250017)
----------------------------------------------------------------------------------------------------------------
Belleville City Lake.................  REPUBLIC.....................  Primary Contact Recreation
Wakefield Lake.......................  CLAY.........................  Primary Contact Recreation
----------------------------------------------------------------------------------------------------------------
                                     Subbasin: Middle Kansas (HUC 10270102)
----------------------------------------------------------------------------------------------------------------
Alma City Reservoir..................  WABAUNSEE....................  Primary Contact Recreation
Cedar Crest Pond.....................  SHAWNEE......................  Primary Contact Recreation
Central Park Lake....................  SHAWNEE......................  Primary Contact Recreation
Gage Park Lake.......................  SHAWNEE......................  Primary Contact Recreation
Jeffrey Energy Center Lakes..........  POTTAWATOMIE.................  Primary Contact Recreation
----------------------------------------------------------------------------------------------------------------
                                        Subbasin: Delaware (HUC 10270103)
----------------------------------------------------------------------------------------------------------------
Atchison County Park Lake............  ATCHISON.....................  Primary Contact Recreation
Little Lake..........................  BROWN........................  Primary Contact Recreation
----------------------------------------------------------------------------------------------------------------

[[Page 471]]

 
                                      Subbasin: Lower Kansas (HUC 10270104)
----------------------------------------------------------------------------------------------------------------
Douglas County State Lake............  DOUGLAS......................  Primary Contact Recreation
Lenexa Lake..........................  JOHNSON......................  Primary Contact Recreation
Mahaffie Farmstead Pond..............  JOHNSON......................  Primary Contact Recreation
Pierson Park Lake....................  WYANDOTTE....................  Primary Contact Recreation
Waterworks Lakes.....................  JOHNSON......................  Primary Contact Recreation
----------------------------------------------------------------------------------------------------------------
                                     Subbasin: Lower Big Blue (HUC 10270205)
----------------------------------------------------------------------------------------------------------------
Lake Idlewild........................  MARSHALL.....................  Primary Contact Recreation
----------------------------------------------------------------------------------------------------------------
                                   Subbasin: Lower Little Blue (HUC 10270207)
----------------------------------------------------------------------------------------------------------------
Washington County State Fishing Lake.  WASHINGTON...................  Primary Contact Recreation
----------------------------------------------------------------------------------------------------------------
                                              Basin: Lower Arkansas
 
                                      Subbasin: Rattlesnake (HUC 11030009)
----------------------------------------------------------------------------------------------------------------
Kiowa County State Fishing Lake......  KIOWA........................  Primary Contact Recreation
----------------------------------------------------------------------------------------------------------------
                                          Subbasin: Cow (HUC 11030011)
----------------------------------------------------------------------------------------------------------------
Barton Lake..........................  BARTON.......................  Primary Contact Recreation
Sterling City Lake...................  RICE.........................  Primary Contact Recreation
----------------------------------------------------------------------------------------------------------------
                                    Subbasin: Little Arkansas (HUC 11030012)
----------------------------------------------------------------------------------------------------------------
Dillon Park Lakes 1.........  RENO.........................  Primary Contact Recreation
Dillon Park Lake 2..........  RENO.........................  Primary Contact Recreation
Newton City Park Lake................  HARVEY.......................  Primary Contact Recreation
----------------------------------------------------------------------------------------------------------------
                                 Subbasin: Middle Arkansas-Slate (HUC 11030013)
----------------------------------------------------------------------------------------------------------------
Belaire Lake.........................  SEDGWICK.....................  Primary Contact Recreation
Buffalo Park Lake....................  SEDGWICK.....................  Primary Contact Recreation
Emery Park...........................  SEDGWICK.....................  Primary Contact Recreation
Harrison Park Lake...................  SEDGWICK.....................  Primary Contact Recreation
Riggs Park Lake......................  SEDGWICK.....................  Primary Contact Recreation
----------------------------------------------------------------------------------------------------------------
                                  Subbasin: South Fork Ninnescah (HUC 11030015)
----------------------------------------------------------------------------------------------------------------
Lemon Park Lake......................  PRATT........................  Primary Contact Recreation
----------------------------------------------------------------------------------------------------------------
                                     Subbasin: Medicine Lodge (HUC 11060003)
----------------------------------------------------------------------------------------------------------------
Barber County State Fishing Lake.....  BARBER.......................  Primary Contact Recreation
----------------------------------------------------------------------------------------------------------------
                                Subbasin: Lower Salt Fork Arkansas (HUC 11060004)
----------------------------------------------------------------------------------------------------------------
Hargis Lake..........................  BARBER.......................  Primary Contact Recreation
----------------------------------------------------------------------------------------------------------------
                                            Basin: Marais Des Cygnes
 
                                Subbasin: Upper Marais Des Cygnes (HUC 10290101)
----------------------------------------------------------------------------------------------------------------
Allen City Lake......................  LYON.........................  Primary Contact Recreation
Cedar Creek Lake.....................  ANDERSON.....................  Primary Contact Recreation
Crystal Lake.........................  ANDERSON.....................  Primary Contact Recreation
Lyon County State Fishing Lake.......  LYON.........................  Primary Contact Recreation
Osage City Reservoir.................  OSAGE........................  Primary Contact Recreation
Waterworks Impoundment...............  ANDERSON.....................  Primary Contact Recreation
----------------------------------------------------------------------------------------------------------------
                                Subbasin: Lower Marais Des Cygnes (HUC 10290102)
----------------------------------------------------------------------------------------------------------------
Edgerton City Lake...................  JOHNSON......................  Primary Contact Recreation
Edgerton South Lake..................  JOHNSON......................  Primary Contact Recreation
Lake LaCygne.........................  LINN.........................  Primary Contact Recreation
Louisburg State Fishing Lake.........  MIAMI........................  Primary Contact Recreation
Miami County State Fishing Lake......  MIAMI........................  Primary Contact Recreation
Paola City Lake......................  MIAMI........................  Primary Contact Recreation
Pleasanton Lake 1...........  LINN.........................  Primary Contact Recreation
Pleasanton Lake 2...........  LINN.........................  Primary Contact Recreation
Spring Hill City Lake................  JOHNSON......................  Primary Contact Recreation
----------------------------------------------------------------------------------------------------------------

[[Page 472]]

 
                                        Subbasin: Marmaton (HUC 10290104)
----------------------------------------------------------------------------------------------------------------
Gunn Park Lake, East.................  BOURBON......................  Primary Contact Recreation
Gunn Park Lake, West.................  BOURBON......................  Primary Contact Recreation
Rock Creek Lake......................  BOURBON......................  Primary Contact Recreation
----------------------------------------------------------------------------------------------------------------
                                                 Basin: Missouri
 
                                 Subbasin: South Fork Big Nemaha (HUC 10240007)
----------------------------------------------------------------------------------------------------------------
Pony Creek Lake......................  NEMAHA.......................  Primary Contact Recreation
Sabetha City Lake....................  NEMAHA.......................  Primary Contact Recreation
----------------------------------------------------------------------------------------------------------------
                                   Subbasin: Independence-Sugar (HUC 10240011)
----------------------------------------------------------------------------------------------------------------
Atchison City Lakes..................  ATCHISON.....................  Primary Contact Recreation
Big Eleven Lake......................  WYANDOTTE....................  Primary Contact Recreation
Doniphan Fair Association Lake.......  DONIPHAN.....................  Primary Contact Recreation
Jerrys Lake..........................  LEAVENWORTH..................  Primary Contact Recreation
Lansing City Lake....................  LEAVENWORTH..................  Primary Contact Recreation
South Park Lake......................  LEAVENWORTH..................  Primary Contact Recreation
----------------------------------------------------------------------------------------------------------------
                                 Subbasin: Lower Missouri-Crooked (HUC 10300101)
----------------------------------------------------------------------------------------------------------------
Prairie View Park....................  JOHNSON......................  Primary Contact Recreation
South Park Lake......................  JOHNSON......................  Primary Contact Recreation
Stanley Rural Water District Lake      JOHNSON......................  Primary Contact Recreation
 2.
Stohl Park Lake......................  JOHNSON......................  Primary Contact Recreation
----------------------------------------------------------------------------------------------------------------
                                                  Basin: Neosho
 
                                    Subbasin: Lower Cottonwood (HUC 11070203)
----------------------------------------------------------------------------------------------------------------
Peter Pan Pond.......................  LYON.........................  Primary Contact Recreation
----------------------------------------------------------------------------------------------------------------
                                      Subbasin: Upper Neosho (HUC 11070204)
----------------------------------------------------------------------------------------------------------------
Chanute City (Santa Fe) Lake.........  NEOSHO.......................  Primary Contact Recreation
Leonard's Lake.......................  WOODSON......................  Primary Contact Recreation
----------------------------------------------------------------------------------------------------------------
                                     Subbasin: Middle Neosho (HUC 11070205)
----------------------------------------------------------------------------------------------------------------
Altamont City Lake 1........  LABETTE......................  Primary Contact Recreation
Bartlett City Lake...................  LABETTE......................  Primary Contact Recreation
Harmon Wildlife Area Lakes...........  LABETTE......................  Primary Contact Recreation
Mined Land Wildlife Area Lakes.......  CHEROKEE.....................  Primary Contact Recreation
Timber Lake..........................  NEOSHO.......................  Primary Contact Recreation
----------------------------------------------------------------------------------------------------------------
                                         Subbasin: Spring (HUC 11070207)
----------------------------------------------------------------------------------------------------------------
Empire Lake..........................  CHEROKEE.....................  Primary Contact Recreation
Frontenac City Park..................  CRAWFORD.....................  Primary Contact Recreation
Mined Land Wildlife Area Lakes.......  CRAWFORD.....................  Primary Contact Recreation
Pittsburg College Lake...............  CRAWFORD.....................  Primary Contact Recreation
Playters Lake........................  CRAWFORD.....................  Primary Contact Recreation
----------------------------------------------------------------------------------------------------------------
                                            Basin: Smoky Hill/Saline
                                    Subbasin: Lower Smoky Hill (HUC 10260008)
----------------------------------------------------------------------------------------------------------------
Herington City Park Lake.............  DICKINSON....................  Primary Contact Recreation
Herington Reservoir..................  DICKINSON....................  Primary Contact Recreation
----------------------------------------------------------------------------------------------------------------
                                                 Basin: Solomon
 
                                Subbasin: Lower North Fork Solomon (HUC 10260012)
----------------------------------------------------------------------------------------------------------------
Francis Wachs Wildlife Area Lakes....  SMITH........................  Primary Contact Recreation
----------------------------------------------------------------------------------------------------------------
                                     Subbasin: Solomon River (HUC 10260015)
----------------------------------------------------------------------------------------------------------------
Jewell County State Fishing Lake.....  JEWELL.......................  Primary Contact Recreation
Ottawa County State Fishing Lake.....  OTTAWA.......................  Primary Contact Recreation
----------------------------------------------------------------------------------------------------------------
                                              Basin: Upper Arkansas
 
                             Subbasin: Middle Arkansas-Lake McKinney (HUC 11030001)
----------------------------------------------------------------------------------------------------------------
Lake McKinney........................  KEARNY.......................  Primary Contact Recreation
----------------------------------------------------------------------------------------------------------------

[[Page 473]]

 
                                  Subbasin: Arkansas-Dodge City (HUC 11030003)
----------------------------------------------------------------------------------------------------------------
Lake Charles.........................  FORD.........................  Primary Contact Recreation
----------------------------------------------------------------------------------------------------------------
                                         Subbasin: Pawnee (HUC 11030005)
----------------------------------------------------------------------------------------------------------------
Concannon State Fishing Lake.........  FINNEY.......................  Primary Contact Recreation
Finney County Game Refuge Lakes......  FINNEY.......................  Primary Contact Recreation
----------------------------------------------------------------------------------------------------------------
                                        Subbasin: Buckner (HUC 11030006)
----------------------------------------------------------------------------------------------------------------
Ford County Lake.....................  FORD.........................  Primary Contact Recreation
Hain State Fishing Lake..............  FORD.........................  Primary Contact Recreation
----------------------------------------------------------------------------------------------------------------
                                   Subbasin: Upper Walnut Creek (HUC 11030007)
----------------------------------------------------------------------------------------------------------------
Goodman State Fishing Lake...........  NESS.........................  Primary Contact Recreation
----------------------------------------------------------------------------------------------------------------
                                   Subbasin: Lower Walnut Creek (HUC 11030008)
----------------------------------------------------------------------------------------------------------------
Memorial Park Lake...................  BARTON.......................  Primary Contact Recreation
Stone Lake...........................  BARTON.......................  Primary Contact Recreation
----------------------------------------------------------------------------------------------------------------
                                                Basin: Verdigris
 
                                    Subbasin: Upper Verdigris (HUC 11070101)
----------------------------------------------------------------------------------------------------------------
Quarry Lake..........................  WILSON.......................  Primary Contact Recreation
Thayer New City Lake.................  NEOSHO.......................  Primary Contact Recreation
----------------------------------------------------------------------------------------------------------------
                                    Subbasin: Middle Verdigris (HUC 11070103)
----------------------------------------------------------------------------------------------------------------
La Claire Lake.......................  MONTGOMERY...................  Primary Contact Recreation
Pfister Park Lakes...................  MONTGOMERY...................  Primary Contact Recreation
----------------------------------------------------------------------------------------------------------------
                                         Subbasin: Caney (HUC 11070106)
----------------------------------------------------------------------------------------------------------------
Caney City Lake......................  CHAUTAUQUA...................  Primary Contact Recreation
----------------------------------------------------------------------------------------------------------------
                                                  Basin: Walnut
 
                                   Subbasin: Lower Walnut River (HUC 11030018)
----------------------------------------------------------------------------------------------------------------
Butler County State Fishing Lake.....  BUTLER.......................  Primary Contact Recreation
Winfield Park Lagoon.................  COWLEY.......................  Primary Contact Recreation
----------------------------------------------------------------------------------------------------------------
    Total = 100
----------------------------------------------------------------------------------------------------------------

    (c) Water quality standard variances. (1) The Regional 
Administrator, EPA Region 7, is authorized to grant variances from the 
water quality standards in paragraphs (a) and (b) of this section where 
the requirements of this paragraph (c) are met. A water quality standard 
variance applies only to the permittee requesting the variance and only 
to the pollutant or pollutants specified in the variance; the underlying 
water quality standard otherwise remains in effect.
    (2) A water quality standard variance shall not be granted if:
    (i) Standards will be attained by implementing effluent limitations 
required under sections 301(b) and 306 of the CWA and by the permittee 
implementing reasonable best management practices for nonpoint source 
control; or
    (ii) The variance would likely jeopardize the continued existence of 
any threatened or endangered species listed under section 4 of the 
Endangered Species Act or result in the destruction or adverse 
modification of such species' critical habitat.
    (3) Subject to paragraph (c)(2) of this section, a water quality 
standards variance may be granted if the applicant demonstrates to EPA 
that attaining the water quality standard is not feasible because:
    (i) Naturally occurring pollutant concentrations prevent the 
attainment of the use; or
    (ii) Natural, ephemeral, intermittent or low flow conditions or 
water levels

[[Page 474]]

prevent the attainment of the use, unless these conditions may be 
compensated for by the discharge of sufficient volume of effluent 
discharges without violating State water conservation requirements to 
enable uses to be met; or
    (iii) Human caused conditions or sources of pollution prevent the 
attainment of the use and cannot be remedied or would cause more 
environmental damage to correct than to leave in place; or
    (iv) Dams, diversions or other types of hydrologic modifications 
preclude the attainment of the use, and it is not feasible to restore 
the water body to its original condition or to operate such modification 
in a way which would result in the attainment of the use; or
    (v) Physical conditions related to the natural features of the water 
body, such as the lack of a proper substrate, cover, flow, depth, pools, 
riffles, and the like unrelated to water quality, preclude attainment of 
aquatic life protection uses; or
    (vi) Controls more stringent than those required by sections 301(b) 
and 306 of the CWA would result in substantial and widespread economic 
and social impact.
    (4) Procedures. An applicant for a water quality standards variance 
shall submit a request to the Regional Administrator of EPA Region 7. 
The application shall include all relevant information showing that the 
requirements for a variance have been satisfied. The burden is on the 
applicant to demonstrate to EPA's satisfaction that the designated use 
is unattainable for one of the reasons specified in paragraph (c)(3) of 
this section. If the Regional Administrator preliminarily determines 
that grounds exist for granting a variance, he shall provide public 
notice of the proposed variance and provide an opportunity for public 
comment. Any activities required as a condition of the Regional 
Administrator's granting of a variance shall be included as conditions 
of the NPDES permit for the applicant. These terms and conditions shall 
be incorporated into the applicant's NPDES permit through the permit 
reissuance process or through a modification of the permit pursuant to 
the applicable permit modification provisions of Kansas' NPDES program
    (5) A variance may not exceed 3 years or the term of the NPDES 
permit, whichever is less. A variance may be renewed if the applicant 
reapplies and demonstrates that the use in question is still not 
attainable. Renewal of the variance may be denied if the applicant did 
not comply with the conditions of the original variance, or otherwise 
does not meet the requirements of this section.

[68 FR 40442, July 7, 2003]



Sec. 131.35  Colville Confederated Tribes Indian Reservation.

    The water quality standards applicable to the waters within the 
Colville Indian Reservation, located in the State of Washington.
    (a) Background. (1) It is the purpose of these Federal water quality 
standards to prescribe minimum water quality requirements for the 
surface waters located within the exterior boundaries of the Colville 
Indian Reservation to ensure compliance with section 303(c) of the Clean 
Water Act.
    (2) The Colville Confederated Tribes have a primary interest in the 
protection, control, conservation, and utilization of the water 
resources of the Colville Indian Reservation. Water quality standards 
have been enacted into tribal law by the Colville Business Council of 
the Confederated Tribes of the Colville Reservation, as the Colville 
Water Quality Standards Act, CTC Title 33 (Resolution No. 1984-526 
(August 6, 1984) as amended by Resolution No. 1985-20 (January 18, 
1985)).
    (b) Territory covered. The provisions of these water quality 
standards shall apply to all surface waters within the exterior 
boundaries of the Colville Indian Reservation.
    (c) Applicability, Administration and Amendment. (1) The water 
quality standards in this section shall be used by the Regional 
Administrator for establishing any water quality based National 
Pollutant Discharge Elimination System Permit (NPDES) for point sources 
on the Colville Confederated Tribes Reservation.
    (2) In conjunction with the issuance of section 402 or section 404 
permits,

[[Page 475]]

the Regional Administrator may designate mixing zones in the waters of 
the United States on the reservation on a case-by-case basis. The size 
of such mixing zones and the in-zone water quality in such mixing zones 
shall be consistent with the applicable procedures and guidelines in 
EPA's Water Quality Standards Handbook and the Technical Support 
Document for Water Quality Based Toxics Control.
    (3) Amendments to the section at the request of the Tribe shall 
proceed in the following manner.
    (i) The requested amendment shall first be duly approved by the 
Confederated Tribes of the Colville Reservation (and so certified by the 
Tribes Legal Counsel) and submitted to the Regional Administrator.
    (ii) The requested amendment shall be reviewed by EPA (and by the 
State of Washington, if the action would affect a boundary water).
    (iii) If deemed in compliance with the Clean Water Act, EPA will 
propose and promulgate an appropriate change to this section.
    (4) Amendment of this section at EPA's initiative will follow 
consultation with the Tribe and other appropriate entities. Such 
amendments will then follow normal EPA rulemaking procedures.
    (5) All other applicable provisions of this part 131 shall apply on 
the Colville Confederated Tribes Reservation. Special attention should 
be paid to Sec. Sec. 131.6, 131.10, 131.11 and 131.20 for any amendment 
to these standards to be initiated by the Tribe.
    (6) All numeric criteria contained in this section apply at all in-
stream flow rates greater than or equal to the flow rate calculated as 
the minimum 7-consecutive day average flow with a recurrence frequency 
of once in ten years (7Q10); narrative criteria (Sec. 131.35(e)(3)) 
apply regardless of flow. The 7Q10 low flow shall be calculated using 
methods recommended by the U.S. Geological Survey.
    (d) Definitions. (1) Acute toxicity means a deleterious response 
(e.g., mortality, disorientation, immobilization) to a stimulus observed 
in 96 hours or less.
    (2) Background conditions means the biological, chemical, and 
physical conditions of a water body, upstream from the point or non-
point source discharge under consideration. Background sampling location 
in an enforcement action will be upstream from the point of discharge, 
but not upstream from other inflows. If several discharges to any water 
body exist, and an enforcement action is being taken for possible 
violations to the standards, background sampling will be undertaken 
immediately upstream from each discharge.
    (3) Ceremonial and Religious water use means activities involving 
traditional Native American spiritual practices which involve, among 
other things, primary (direct) contact with water.
    (4) Chronic toxicity means the lowest concentration of a constituent 
causing observable effects (i.e., considering lethality, growth, reduced 
reproduction, etc.) over a relatively long period of time, usually a 28-
day test period for small fish test species.
    (5) Council or Tribal Council means the Colville Business Council of 
the Colville Confederated Tribes.
    (6) Geometric mean means the nth root of a product of n factors.
    (7) Mean retention time means the time obtained by dividing a 
reservoir's mean annual minimum total storage by the non-zero 30-day, 
ten-year low-flow from the reservoir.
    (8) Mixing zone or dilution zone means a limited area or volume of 
water where initial dilution of a discharge takes place; and where 
numeric water quality criteria can be exceeded but acutely toxic 
conditions are prevented from occurring.
    (9) pH means the negative logarithm of the hydrogen ion 
concentration.
    (10) Primary contact recreation means activities where a person 
would have direct contact with water to the point of complete 
submergence, including but not limited to skin diving, swimming, and 
water skiing.
    (11) Regional Administrator means the Administrator of EPA's Region 
X.
    (12) Reservation means all land within the limits of the Colville 
Indian Reservation, established on July 2, 1872 by Executive Order, 
presently containing 1,389,000 acres more or less, and under the 
jurisdiction of the United States

[[Page 476]]

government, notwithstanding the issuance of any patent, and including 
rights-of-way running through the reservation.
    (13) Secondary contact recreation means activities where a person's 
water contact would be limited to the extent that bacterial infections 
of eyes, ears, respiratory, or digestive systems or urogenital areas 
would normally be avoided (such as wading or fishing).
    (14) Surface water means all water above the surface of the ground 
within the exterior boundaries of the Colville Indian Reservation 
including but not limited to lakes, ponds, reservoirs, artificial 
impoundments, streams, rivers, springs, seeps and wetlands.
    (15) Temperature means water temperature expressed in Centigrade 
degrees (C).
    (16) Total dissolved solids (TDS) means the total filterable residue 
that passes through a standard glass fiber filter disk and remains after 
evaporation and drying to a constant weight at 180 degrees C. it is 
considered to be a measure of the dissolved salt content of the water.
    (17) Toxicity means acute and/or chronic toxicity.
    (18) Tribe or Tribes means the Colville Confederated Tribes.
    (19) Turbidity means the clarity of water expressed as nephelometric 
turbidity units (NTU) and measured with a calibrated turbidimeter.
    (20) Wildlife habitat means the waters and surrounding land areas of 
the Reservation used by fish, other aquatic life and wildlife at any 
stage of their life history or activity.
    (e) General considerations. The following general guidelines shall 
apply to the water quality standards and classifications set forth in 
the use designation Sections.
    (1) Classification boundaries. At the boundary between waters of 
different classifications, the water quality standards for the higher 
classification shall prevail.
    (2) Antidegradation policy. This antidegradation policy shall be 
applicable to all surface waters of the Reservation.
    (i) Existing in-stream water uses and the level of water quality 
necessary to protect the existing uses shall be maintained and 
protected.
    (ii) Where the quality of the waters exceeds levels necessary to 
support propagation of fish, shellfish, and wildlife and recreation in 
and on the water, that quality shall be maintained and protected unless 
the Regional Administrator finds, after full satisfaction of the inter-
governmental coordination and public participation provisions of the 
Tribes' continuing planning process, that allowing lower water quality 
is necessary to accommodate important economic or social development in 
the area in which the waters are located. In allowing such degradation 
or lower water quality, the Regional Administrator shall assure water 
quality adequate to protect existing uses fully. Further, the Regional 
Administrator shall assure that there shall be achieved the highest 
statutory and regulatory requirements for all new and existing point 
sources and all cost-effective and reasonable best management practices 
for nonpoint source control.
    (iii) Where high quality waters are identified as constituting an 
outstanding national or reservation resource, such as waters within 
areas designated as unique water quality management areas and waters 
otherwise of exceptional recreational or ecological significance, and 
are designated as special resource waters, that water quality shall be 
maintained and protected.
    (iv) In those cases where potential water quality impairment 
associated with a thermal discharge is involved, this antidegradation 
policy's implementing method shall be consistent with section 316 of the 
Clean Water Act.
    (3) Aesthetic qualities. All waters within the Reservation, 
including those within mixing zones, shall be free from substances, 
attributable to wastewater discharges or other pollutant sources, that:
    (i) Settle to form objectionable deposits;
    (ii) Float as debris, scum, oil, or other matter forming nuisances;
    (iii) Produce objectionable color, odor, taste, or turbidity;

[[Page 477]]

    (iv) Cause injury to, are toxic to, or produce adverse physiological 
responses in humans, animals, or plants; or
    (v) produce undesirable or nuisance aquatic life.
    (4) Analytical methods. (i) The analytical testing methods used to 
measure or otherwise evaluate compliance with water quality standards 
shall to the extent practicable, be in accordance with the ``Guidelines 
Establishing Test Procedures for the Analysis of Pollutants'' (40 CFR 
part 136). When a testing method is not available for a particular 
substance, the most recent edition of ``Standard Methods for the 
Examination of Water and Wastewater'' (published by the American Public 
Health Association, American Water Works Association, and the Water 
Pollution Control Federation) and other or superseding methods published 
and/or approved by EPA shall be used.
    (f) General water use and criteria classes. The following criteria 
shall apply to the various classes of surface waters on the Colville 
Indian Reservation:
    (1) Class I (Extraordinary)--(i) Designated uses. The designated 
uses include, but are not limited to, the following:
    (A) Water supply (domestic, industrial, agricultural).
    (B) Stock watering.
    (C) Fish and shellfish: Salmonid migration, rearing, spawning, and 
harvesting; other fish migration, rearing, spawning, and harvesting.
    (D) Wildlife habitat.
    (E) Ceremonial and religious water use.
    (F) Recreation (primary contact recreation, sport fishing, boating 
and aesthetic enjoyment).
    (G) Commerce and navigation.
    (ii) Water quality criteria. (A) Bacteriological Criteria. The 
geometric mean of the enterococci bacteria densities in samples taken 
over a 30 day period shall not exceed 8 per 100 milliliters, nor shall 
any single sample exceed an enterococci density of 35 per 100 
milliliters. These limits are calculated as the geometric mean of the 
collected samples approximately equally spaced over a thirty day period.
    (B) Dissolved oxygen--The dissolved oxygen shall exceed 9.5 mg/l.
    (C) Total dissolved gas--concentrations shall not exceed 110 percent 
of the saturation value for gases at the existing atmospheric and 
hydrostatic pressures at any point of sample collection.
    (D) Temperature--shall not exceed 16.0 degrees C due to human 
activities. Temperature increases shall not, at any time, exceed t=23/
(T+5).
    (1) When natural conditions exceed 16.0 degrees C, no temperature 
increase will be allowed which will raise the receiving water by greater 
than 0.3 degrees C.
    (2) For purposes hereof, ``t'' represents the permissive temperature 
change across the dilution zone; and ``T'' represents the highest 
existing temperature in this water classification outside of any 
dilution zone.
    (3) Provided that temperature increase resulting from nonpoint 
source activities shall not exceed 2.8 degrees C, and the maximum water 
temperature shall not exceed 10.3 degrees C.
    (E) pH shall be within the range of 6.5 to 8.5 with a human-caused 
variation of less than 0.2 units.
    (F) Turbidity shall not exceed 5 NTU over background turbidity when 
the background turbidity is 50 NTU or less, or have more than a 10 
percent increase in turbidity when the background turbidity is more than 
50 NTU.
    (G) Toxic, radioactive, nonconventional, or deleterious material 
concentrations shall be less than those of public health significance, 
or which may cause acute or chronic toxic conditions to the aquatic 
biota, or which may adversely affect designated water uses.
    (2) Class II (Excellent)--(i) Designated uses. The designated uses 
include but are not limited to, the following:
    (A) Water supply (domestic, industrial, agricultural).
    (B) Stock watering.
    (C) Fish and shellfish: Salmonid migration, rearing, spawning, and 
harvesting; other fish migration, rearing, spawning, and harvesting; 
crayfish rearing, spawning, and harvesting.
    (D) Wildlife habitat.
    (E) Ceremonial and religious water use.

[[Page 478]]

    (F) Recreation (primary contact recreation, sport fishing, boating 
and aesthetic enjoyment).
    (G) Commerce and navigation.
    (ii) Water quality criteria. (A) Bacteriological Criteria--The 
geometric mean of the enterococci bacteria densities in samples taken 
over a 30 day period shall not exceed 16/100 ml, nor shall any single 
sample exceed an enterococci density of 75 per 100 milliliters. These 
limits are calculated as the geometric mean of the collected samples 
approximately equally spaced over a thirty day period.
    (B) Dissolved oxygen--The dissolved oxygen shall exceed 8.0 mg/l.
    (C) Total dissolved gas--concentrations shall not exceed 110 percent 
of the saturation value for gases at the existing atmospheric and 
hydrostatic pressures at any point of sample collection.
    (D) Temperature-shall not exceed 18.0 degrees C due to human 
activities. Temperature increases shall not, at any time, exceed t=28/
(T+7).
    (1) When natural conditions exceed 18 degrees C no temperature 
increase will be allowed which will raise the receiving water 
temperature by greater than 0.3 degrees C.
    (2) For purposes hereof, ``t'' represents the permissive temperature 
change across the dilution zone; and ``T'' represents the highest 
existing temperature in this water classification outside of any 
dilution zone.
    (3) Provided that temperature increase resulting from non-point 
source activities shall not exceed 2.8 degrees C, and the maximum water 
temperature shall not exceed 18.3 degrees C.
    (E) pH shall be within the range of 6.5 to 8.5 with a human-caused 
variation of less than 0.5 units.
    (F) Turbidity shall not exceed 5 NTU over background turbidity when 
the background turbidity is 50 NTU or less, or have more than a 10 
percent increase in turbidity when the background turbidity is more than 
50 NTU.
    (G) Toxic, radioactive, nonconventional, or deleterious material 
concentrations shall be less than those of public health significance, 
or which may cause acute or chronic toxic conditions to the aquatic 
biota, or which may adversely affect designated water uses.
    (3) Class III (Good)--(i) Designated uses. The designated uses 
include but are not limited to, the following:
    (A) Water supply (industrial, agricultural).
    (B) Stock watering.
    (C) Fish and shellfish: Salmonid migration, rearing, spawning, and 
harvesting; other fish migration, rearing, spawning, and harvesting; 
crayfish rearing, spawning, and harvesting.
    (D) Wildlife habitat.
    (E) Recreation (secondary contact recreation, sport fishing, boating 
and aesthetic enjoyment).
    (F) Commerce and navigation.
    (ii) Water quality criteria. (A) Bacteriological Criteria--The 
geometric mean of the enterococci bacteria densities in samples taken 
over a 30 day period shall not exceed 33/100 ml, nor shall any single 
sample exceed an enterococci density of 150 per 100 milliliters. These 
limits are calculated as the geometric mean of the collected samples 
approximately equally spaced over a thirty day period.
    (B) Dissolved oxygen.

------------------------------------------------------------------------
                                                        Early
                                                         life     Other
                                                        stages     life
                                                        \1,2\     stages
------------------------------------------------------------------------
7 day mean..........................................  9.5 (6.5)   \3\ NA
1 day minimum \4\...................................  8.0 (5.0)      6.5
------------------------------------------------------------------------
\1\ These are water column concentrations recommended to achieve the
  required intergravel dissolved oxygen concentrations shown in
  parentheses. The 3 mg/L differential is discussed in the dissolved
  oxygen criteria document (EPA 440/5-86-003, April 1986). For species
  that have early life stages exposed directly to the water column, the
  figures in parentheses apply.
\2\ Includes all embryonic and larval stages and all juvenile forms to
  30-days following hatching.
\3\ NA (not applicable)
\4\ All minima should be considered as instantaneous concentrations to
  be achieved at all times.

    (C) Total dissolved gas concentrations shall not exceed 110 percent 
of the saturation value for gases at the existing atmospheric and 
hydrostatic pressures at any point of sample collection.
    (D) Temperature shall not exceed 21.0 degrees C due to human 
activities. Temperature increases shall not, at any time, exceed t=34/
(T+9).
    (1) When natural conditions exceed 21.0 degrees C no temperature 
increase will be allowed which will raise the receiving water 
temperature by greater than 0.3 degrees C.

[[Page 479]]

    (2) For purposes hereof, ``t'' represents the permissive temperature 
change across the dilution zone; and ``T'' represents the highest 
existing temperature in this water classification outside of any 
dilution zone.
    (3) Provided that temperature increase resulting from nonpoint 
source activities shall not exceed 2.8 degrees C, and the maximum water 
temperature shall not exceed 21.3 degrees C.
    (E) pH shall be within the range of 6.5 to 8.5 with a human-caused 
variation of less than 0.5 units.
    (F) Turbidity shall not exceed 10 NTU over background turbidity when 
the background turbidity is 50 NTU or less, or have more than a 20 
percent increase in turbidity when the background turbidity is more than 
50 NTU.
    (G) Toxic, radioactive, nonconventional, or deleterious material 
concentrations shall be less than those of public health significance, 
or which may cause acute or chronic toxic conditions to the aquatic 
biota, or which may adversely affect designated water uses.
    (4) Class IV (Fair)--(i) Designated uses. The designated uses 
include but are not limited to, the following:
    (A) Water supply (industrial).
    (B) Stock watering.
    (C) Fish (salmonid and other fish migration).
    (D) Recreation (secondary contact recreation, sport fishing, boating 
and aesthetic enjoyment).
    (E) Commerce and navigation.
    (ii) Water quality criteria. (A) Dissolved oxygen.

------------------------------------------------------------------------
                                                     During
                                                   periods of    During
                                                    salmonid   all other
                                                   and other      time
                                                      fish      periods
                                                   migration
------------------------------------------------------------------------
30 day mean.....................................          6.5        5.5
7 day mean......................................       \1\ NA     \1\ NA
7 day mean minimum..............................          5.0        4.0
1 day minimum \2\...............................          4.0        3.0
------------------------------------------------------------------------
\1\ NA (not applicable).
\2\ All minima should be considered as instantaneous concentrations to
  be achieved at all times.

    (B) Total dissolved gas--concentrations shall not exceed 110 percent 
of the saturation value for gases at the existing atmospheric and 
hydrostatic pressures at any point of sample collection.
    (C) Temperature shall not exceed 22.0 degrees C due to human 
activities. Temperature increases shall not, at any time, exceed t=20/
(T+2).
    (1) When natural conditions exceed 22.0 degrees C, no temperature 
increase will be allowed which will raise the receiving water 
temperature by greater than 0.3 degrees C.
    (2) For purposes hereof, ``t'' represents the permissive temperature 
change across the dilution zone; and ``T'' represents the highest 
existing temperature in this water classification outside of any 
dilution zone.
    (D) pH shall be within the range of 6.5 to 9.0 with a human-caused 
variation of less than 0.5 units.
    (E) Turbidity shall not exceed 10 NTU over background turbidity when 
the background turbidity is 50 NTU or less, or have more than a 20 
percent increase in turbidity when the background turbidity is more than 
50 NTU.
    (F) Toxic, radioactive, nonconventional, or deleterious material 
concentrations shall be less than those of public health significance, 
or which may cause acute or chronic toxic conditions to the aquatic 
biota, or which may adversely affect designated water uses.
    (5) Lake Class--(i) Designated uses. The designated uses include but 
are not limited to, the following:
    (A) Water supply (domestic, industrial, agricultural).
    (B) Stock watering.
    (C) Fish and shellfish: Salmonid migration, rearing, spawning, and 
harvesting; other fish migration, rearing, spawning, and harvesting; 
crayfish rearing, spawning, and harvesting.
    (D) Wildlife habitat.
    (E) Ceremonial and religious water use.
    (F) Recreation (primary contact recreation, sport fishing, boating 
and aesthetic enjoyment).
    (G) Commerce and navigation.
    (ii) Water quality criteria. (A) Bacteriological Criteria. The 
geometric mean of the enterococci bacteria densities in samples taken 
over a 30 day period shall not exceed 33/100 ml, nor shall any single 
sample exceed an enterococci density of 150 per 100 milliliters. These 
limits are calculated as the geometric mean of the collected

[[Page 480]]

samples approximately equally spaced over a thirty day period.
    (B) Dissolved oxygen--no measurable decrease from natural 
conditions.
    (C) Total dissolved gas concentrations shall not exceed 110 percent 
of the saturation value for gases at the existing atmospheric and 
hydrostatic pressures at any point of sample collection.
    (D) Temperature--no measurable change from natural conditions.
    (E) pH--no measurable change from natural conditions.
    (F) Turbidity shall not exceed 5 NTU over natural conditions.
    (G) Toxic, radioactive, nonconventional, or deleterious material 
concentrations shall be less than those which may affect public health, 
the natural aquatic environment, or the desirability of the water for 
any use.
    (6) Special Resource Water Class (SRW)--(i) General characteristics. 
These are fresh or saline waters which comprise a special and unique 
resource to the Reservation. Water quality of this class will be varied 
and unique as determined by the Regional Administrator in cooperation 
with the Tribes.
    (ii) Designated uses. The designated uses include, but are not 
limited to, the following:
    (A) Wildlife habitat.
    (B) Natural foodchain maintenance.
    (iii) Water quality criteria.
    (A) Enterococci bacteria densities shall not exceed natural 
conditions.
    (B) Dissolved oxygen--shall not show any measurable decrease from 
natural conditions.
    (C) Total dissolved gas shall not vary from natural conditions.
    (D) Temperature--shall not show any measurable change from natural 
conditions.
    (E) pH shall not show any measurable change from natural conditions.
    (F) Settleable solids shall not show any change from natural 
conditions.
    (G) Turbidity shall not exceed 5 NTU over natural conditions.
    (H) Toxic, radioactive, or deleterious material concentrations shall 
not exceed those found under natural conditions.
    (g) General classifications. General classifications applying to 
various surface waterbodies not specifically classified under Sec. 
131.35(h) are as follows:
    (1) All surface waters that are tributaries to Class I waters are 
classified Class I, unless otherwise classified.
    (2) Except for those specifically classified otherwise, all lakes 
with existing average concentrations less than 2000 mg/L TDS and their 
feeder streams on the Colville Indian Reservation are classified as Lake 
Class and Class I, respectively.
    (3) All lakes on the Colville Indian Reservation with existing 
average concentrations of TDS equal to or exceeding 2000 mg/L and their 
feeder streams are classified as Lake Class and Class I respectively 
unless specifically classified otherwise.
    (4) All reservoirs with a mean detention time of greater than 15 
days are classified Lake Class.
    (5) All reservoirs with a mean detention time of 15 days or less are 
classified the same as the river section in which they are located.
    (6) All reservoirs established on pre-existing lakes are classified 
as Lake Class.
    (7) All wetlands are assigned to the Special Resource Water Class.
    (8) All other waters not specifically assigned to a classification 
of the reservation are classified as Class II.
    (h) Specific classifications. Specific classifications for surface 
waters of the Colville Indian Reservation are as follows:

(1) Streams:
    Alice Creek...........................  Class III
    Anderson Creek........................  Class III
    Armstrong Creek.......................  Class III
    Barnaby Creek.........................  Class II
    Bear Creek............................  Class III
    Beaver Dam Creek......................  Class II
    Bridge Creek..........................  Class II
    Brush Creek...........................  Class III
    Buckhorn Creek........................  Class III
    Cache Creek...........................  Class III
    Canteen Creek.........................  Class I
    Capoose Creek.........................  Class III
    Cobbs Creek...........................  Class III
    Columbia River from Chief Joseph Dam
     to Wells Dam.
    Columbia River from northern
     Reservation boundary to Grand Coulee
     Dam (Roosevelt Lake).
    Columbia River from Grand Coulee Dam
     to Chief Joseph Dam.
    Cook Creek............................  Class I
    Cooper Creek..........................  Class III
    Cornstalk Creek.......................  Class III
    Cougar Creek..........................  Class I

[[Page 481]]

 
    Coyote Creek..........................  Class II
    Deerhorn Creek........................  Class III
    Dick Creek............................  Class III
    Dry Creek.............................  Class I
    Empire Creek..........................  Class III
    Faye Creek............................  Class I
    Forty Mile Creek......................  Class III
    Gibson Creek..........................  Class I
    Gold Creek............................  Class II
    Granite Creek.........................  Class II
    Grizzly Creek.........................  Class III
    Haley Creek...........................  Class III
    Hall Creek............................  Class II
    Hall Creek, West Fork.................  Class I
    Iron Creek............................  Class III
    Jack Creek............................  Class III
    Jerred Creek..........................  Class I
    Joe Moses Creek.......................  Class III
    John Tom Creek........................  Class III
    Jones Creek...........................  Class I
    Kartar Creek..........................  Class III
    Kincaid Creek.........................  Class III
    King Creek............................  Class III
    Klondyke Creek........................  Class I
    Lime Creek............................  Class III
    Little Jim Creek......................  Class III
    Little Nespelem.......................  Class II
    Louie Creek...........................  Class III
    Lynx Creek............................  Class II
    Manila Creek..........................  Class III
    McAllister Creek......................  Class III
    Meadow Creek..........................  Class III
    Mill Creek............................  Class II
    Mission Creek.........................  Class III
    Nespelem River........................  Class II
    Nez Perce Creek.......................  Class III
    Nine Mile Creek.......................  Class II
    Nineteen Mile Creek...................  Class III
    No Name Creek.........................  Class II
    North Nanamkin Creek..................  Class III
    North Star Creek......................  Class III
    Okanogan River from Reservation north   Class II
     boundary to Columbia River.
    Olds Creek............................  Class I
    Omak Creek............................  Class II
    Onion Creek...........................  Class II
    Parmenter Creek.......................  Class III
    Peel Creek............................  Class III
    Peter Dan Creek.......................  Class III
    Rock Creek............................  Class I
    San Poil River........................  Class I
    Sanpoil, River West Fork..............  Class II
    Seventeen Mile Creek..................  Class III
    Silver Creek..........................  Class III
    Sitdown Creek.........................  Class III
    Six Mile Creek........................  Class III
    South Nanamkin Creek..................  Class III
    Spring Creek..........................  Class III
    Stapaloop Creek.......................  Class III
    Stepstone Creek.......................  Class III
    Stranger Creek........................  Class II
    Strawberry Creek......................  Class III
    Swimptkin Creek.......................  Class III
    Three Forks Creek.....................  Class I
    Three Mile Creek......................  Class III
    Thirteen Mile Creek...................  Class II
    Thirty Mile Creek.....................  Class II
    Trail Creek...........................  Class III
    Twentyfive Mile Creek.................  Class III
    Twentyone Mile Creek..................  Class III
    Twentythree Mile Creek................  Class III
    Wannacot Creek........................  Class III
    Wells Creek...........................  Class I
    Whitelaw Creek........................  Class III
    Wilmont Creek.........................  Class II
(2) Lakes:
    Apex Lake.............................  LC
    Big Goose Lake........................  LC
    Bourgeau Lake.........................  LC
    Buffalo Lake..........................  LC
    Cody Lake.............................  LC
    Crawfish Lakes........................  LC
    Camille Lake..........................  LC
    Elbow Lake............................  LC
    Fish Lake.............................  LC
    Gold Lake.............................  LC
    Great Western Lake....................  LC
    Johnson Lake..........................  LC
    LaFleur Lake..........................  LC
    Little Goose Lake.....................  LC
    Little Owhi Lake......................  LC
    McGinnis Lake.........................  LC
    Nicholas Lake.........................  LC
    Omak Lake.............................  SRW
    Owhi Lake.............................  SRW
    Penley Lake...........................  SRW
    Rebecca Lake..........................  LC
    Round Lake............................  LC
    Simpson Lake..........................  LC
    Soap Lake.............................  LC
    Sugar Lake............................  LC
    Summit Lake...........................  LC
    Twin Lakes............................  SRW
 


[54 FR 28625, July 6, 1989]



Sec. 131.36  Toxics criteria for those states not complying with Clean Water 

Act section 303(c)(2)(B).

    (a) Scope. This section is not a general promulgation of the section 
304(a) criteria for priority toxic pollutants but is restricted to 
specific pollutants in specific States.
    (b)(1) EPA's Section 304(a) criteria for Priority Toxic Pollutants.

[[Page 482]]



--------------------------------------------------------------------------------------------------------------------------------------------------------
                         A                                    B  Freshwater                     C  Saltwater             D  Human Health  (10-6 risk for
-----------------------------------------------------------------------------------------------------------------------   carcinogens)  For consumption
                                                                                                                                       of:
                                                       Criterion        Criterion        Criterion        Criterion    ---------------------------------
                                                     Maximum  Conc.     Continuous     Maximum  Conc.     Continuous        Water &
       () Compound           CAS Number    \d\  ([micro]g/     Conc. \d\     \d\  ([micro]g/     Conc. \d\        Organisms     Organisms  Only
                                                        L)  (B1)       ([micro]g/L)       L)  (C1)       ([micro]g/L)     ([micro]g/L)     ([micro]g/L)
                                                                           (B2)                              (C2)             (D1)             (D2)
--------------------------------------------------------------------------------------------------------------------------------------------------------
 1 Antimony......................          7440360  ...............  ...............  ...............  ...............             14 a           4300 a
 2 Arsenic.......................          7440382            360 m            190 m             69 m             36 m        0.018 abc         0.14 abc
 3 Beryllium.....................          7440417  ...............  ...............  ...............  ...............                n                n
 4 Cadmium.......................          7440439            3.7 e            1.0 e             42 m            9.3 m                n                n
 5a Chromium (III)...............         16065831            550 e            180 e  ...............  ...............                n                n
 b Chromium (VI).................         18540299             15 m             10 m           1100 m             50 m                n                n
 6 Copper........................          7440508             17 e             11 e            2.4 m            2.4 m
 7 Lead..........................          7439921             65 e            2.5 e            210 m            8.1 m                n                n
 8 Mercury.......................          7439976            2.1 m         0.012 ip            1.8 m         0.025 ip             0.14             0.15
 9 Nickel........................          7440020           1400 e            160 e             74 m            8.2 m            610 a           4600 a
 10 Selenium.....................          7782492             20 p              5 p            290 m             71 m                n                n
 11 Silver.......................          7440224            3.4 e  ...............            1.9 m
 12 Thallium.....................          7440280  ...............  ...............  ...............  ...............            1.7 a            6.3 a
 13 Zinc.........................          7440666            110 e            100 e             90 m             81 m
 14 Cyanide......................            57125               22              5.2                1                1            700 a        220000 aj
 15 Asbestos.....................          1332214  ...............  ...............  ...............  ...............        7,000,000
                                                                                                                             fibers/L k
 16 2,3,7,8-TCDD (Dioxin)........          1746016  ...............  ...............  ...............  ...............    0.000000013 c    0.000000014 c
 17 Acrolein.....................           107028  ...............  ...............  ...............  ...............              320              780
 18 Acrylonitrile................           107131  ...............  ...............  ...............  ...............         0.059 ac          0.66 ac
 19 Benzene......................            71432  ...............  ...............  ...............  ...............           1.2 ac            71 ac
 20 Bromoform....................            75252  ...............  ...............  ...............  ...............           4.3 ac           360 ac
 21 Carbon Tetrachloride.........            56235  ...............  ...............  ...............  ...............          0.25 ac           4.4 ac
 22 Chlorobenzene................           108907  ...............  ...............  ...............  ...............            680 a         21000 aj
 23 Chlorodibromomethane.........           124481  ...............  ...............  ...............  ...............          0.41 ac            34 ac
 24 Chloroethane.................            75003
 25 2-Chloroethylvinyl Ether.....           110758
 26 Chloroform...................            67663  ...............  ...............  ...............  ...............           5.7 ac           470 ac
 27 Dichlorobromomethane.........            75274  ...............  ...............  ...............  ...............          0.27 ac            22 ac
 28 1,1-Dichloroethane...........            75343
 29 1,2-Dichloroethane...........           107062  ...............  ...............  ...............  ...............          0.38 ac            99 ac
 30 1,1-Dichloroethylene.........            75354  ...............  ...............  ...............  ...............         0.057 ac           3.2 ac
 31 1,2-Dichloropropane..........            78875
 32 1,3-Dichloropropylene........           542756  ...............  ...............  ...............  ...............             10 a           1700 a
 33 Ethylbenzene.................           100414  ...............  ...............  ...............  ...............           3100 a          29000 a
 34 Methyl Bromide...............            74839  ...............  ...............  ...............  ...............             48 a           4000 a
 35 Methyl Chloride..............            74873  ...............  ...............  ...............  ...............                n                n
 36 Methylene Chloride...........            75092  ...............  ...............  ...............  ...............           4.7 ac          1600 ac
 37 1,1,2,2-Tetrachloroethane....            79345  ...............  ...............  ...............  ...............          0.17 ac            11 ac
 38 Tetrachloroethylene..........           127184  ...............  ...............  ...............  ...............            0.8 c           8.85 c
 39 Toluene......................           108883  ...............  ...............  ...............  ...............           6800 a         200000 a

[[Page 483]]

 
 40 1,2-Trans-Dichloroethylene...           156605
 41 1,1,1-Trichloroethane........            71556  ...............  ...............  ...............  ...............                n                n
 42 1,1,2-Trichloroethane........            79005  ...............  ...............  ...............  ...............          0.60 ac            42 ac
 43 Trichloroethylene............            79016  ...............  ...............  ...............  ...............            2.7 c             81 c
 44 Vinyl Chloride...............            75014  ...............  ...............  ...............  ...............              2 c            525 c
 45 2-Chlorophenol...............            95578
 46 2,4-Dichlorophenol...........           120832  ...............  ...............  ...............  ...............             93 a           790 aj
 47 2,4-Dimethylphenol...........           105679
 48 2-Methyl-4,6-Dinitrophenol...           534521  ...............  ...............  ...............  ...............             13.4              765
 49 2,4-Dinitrophenol............            51285  ...............  ...............  ...............  ...............             70 a          14000 a
 50 2-Nitrophenol................            88755
 51 4-Nitrophenol................           100027
 52 3-Methyl-4-Chlorophenol......            59507
 53 Pentachlorophenol............            87865             20 f             13 f               13              7.9          0.28 ac          8.2 acj
 54 Phenol.......................           108952  ...............  ...............  ...............  ...............          21000 a       4600000 aj
 55 2,4,6-Trichlorophenol........            88062  ...............  ...............  ...............  ...............           2.1 ac           6.5 ac
 56 Acenaphthene.................            83329
 57 Acenaphthylene...............           208968
 58 Anthracene...................           120127  ...............  ...............  ...............  ...............           9600 a         110000 a
 59 Benzidine....................            92875  ...............  ...............  ...............  ...............       0.00012 ac       0.00054 ac
 60 Benzo(a)Anthracene...........            56553  ...............  ...............  ...............  ...............         0.0028 c          0.031 c
 61 Benzo(a)Pyrene...............            50328  ...............  ...............  ...............  ...............         0.0028 c          0.031 c
 62 Benzo(b)Fluoranthene.........           205992  ...............  ...............  ...............  ...............         0.0028 c          0.031 c
 63 Benzo(ghi)Perylene...........           191242
 64 Benzo(k)Fluoranthene.........           207089  ...............  ...............  ...............  ...............         0.0028 c          0.031 c
 65 Bis(2-Chloroethoxy)Methane...           111911
 66 Bis(2-Chloroethyl)Ether......           111444  ...............  ...............  ...............  ...............         0.031 ac           1.4 ac
 67 Bis(2-Chloroisopropyl)Ether..           108601  ...............  ...............  ...............  ...............           1400 a         170000 a
 68 Bis(2-Ethylhexyl)Phthalate...           117817  ...............  ...............  ...............  ...............           1.8 ac           5.9 ac
 69 4-Bromophenyl Phenyl Ether...           101553
 70 Butylbenzyl Phthalate........            85687
 71 2-Chloronaphthalene..........            91587
 72 4-Chlorophenyl Phenyl Ether..          7005723
 73 Chrysene.....................           218019  ...............  ...............  ...............  ...............         0.0028 c          0.031 c
 74 Dibenzo(ah)Anthracene........            53703  ...............  ...............  ...............  ...............         0.0028 c          0.031 c
 75 1,2-Dichlorobenzene..........            95501  ...............  ...............  ...............  ...............           2700 a          17000 a
 76 1,3-Dichlorobenzene..........           541731  ...............  ...............  ...............  ...............              400             2600
 77 1,4-Dichlorobenzene..........           106467  ...............  ...............  ...............  ...............              400             2600
 78 3,3'-Dichlorobenzidine.......            91941  ...............  ...............  ...............  ...............          0.04 ac         0.077 ac
 79 Diethyl Phthalate............            84662  ...............  ...............  ...............  ...............          23000 a         120000 a
 80 Dimethyl Phthalate...........           131113  ...............  ...............  ...............  ...............           313000          2900000
 81 Di-n-Butyl Phthalate.........            84742  ...............  ...............  ...............  ...............           2700 a          12000 a
 82 2,4-Dinitrotoluene...........           121142  ...............  ...............  ...............  ...............           0.11 c            9.1 c
 83 2,6-Dinitrotoluene...........           606202
 84 Di-n-Octyl Phthalate.........           117840
 85 1,2-Diphenylhydrazine........           122667  ...............  ...............  ...............  ...............         0.040 ac          0.54 ac
 86 Fluoranthene.................           206440  ...............  ...............  ...............  ...............            300 a            370 a
 87 Fluorene.....................            86737  ...............  ...............  ...............  ...............           1300 a          14000 a
 88 Hexachlorobenzene............           118741  ...............  ...............  ...............  ...............       0.00075 ac       0.00077 ac
 89 Hexachlorobutadiene..........            87683  ...............  ...............  ...............  ...............          0.44 ac            50 ac

[[Page 484]]

 
 90 Hexachlorocyclopentadiene....            77474  ...............  ...............  ...............  ...............            240 a         17000 aj
 91 Hexachloroethane.............            67721  ...............  ...............  ...............  ...............           1.9 ac           8.9 ac
 92 Indeno(1,2,3-cd)Pyrene.......           193395  ...............  ...............  ...............  ...............         0.0028 c          0.031 c
 93 Isophorone...................            78591  ...............  ...............  ...............  ...............           8.4 ac           600 ac
 94 Naphthalene..................            91203
 95 Nitrobenzene.................            98953  ...............  ...............  ...............  ...............             17 a          1900 aj
 96 N-Nitrosodimethylamine.......            62759  ...............  ...............  ...............  ...............       0.00069 ac           8.1 ac
 97 N-Nitrosodi-n-Propylamine....           621647
 98 N-Nitrosodiphenylamine.......            86306  ...............  ...............  ...............  ...............           5.0 ac            16 ac
 99 Phenanthrene.................            85018
100 Pyrene.......................           129000  ...............  ...............  ...............  ...............            960 a          11000 a
101 1,2,4-Trichlorobenzene.......           120821
102 Aldrin.......................           309002              3 g  ...............            1.3 g  ...............       0.00013 ac       0.00014 ac
103 alpha-BHC....................           319846  ...............  ...............  ...............  ...............        0.0039 ac         0.013 ac
104 beta-BHC.....................           319857  ...............  ...............  ...............  ...............         0.014 ac         0.046 ac
105 gamma-BHC....................            58899              2 g           0.08 g           0.16 g  ...............          0.019 c          0.063 c
106 delta-BHC....................           319868
107 Chlordane....................            57749            2.4 g         0.0043 g           0.09 g          0.004 g       0.00057 ac       0.00059 ac
108 4,4'-DDT.....................            50293            1.1 g          0.001 g           0.13 g          0.001 g       0.00059 ac       0.00059 ac
109 4,4'-DDE.....................            72559  ...............  ...............  ...............  ...............       0.00059 ac       0.00059 ac
110 4,4'-DDD.....................            72548  ...............  ...............  ...............  ...............       0.00083 ac       0.00084 ac
111 Dieldrin.....................            60571            2.5 g         0.0019 g           0.71 g         0.0019 g       0.00014 ac       0.00014 ac
112 alpha-Endosulfan.............           959988           0.22 g          0.056 g          0.034 g         0.0087 g           0.93 a            2.0 a
113 beta-Endosulfan..............         33213659           0.22 g          0.056 g          0.034 g         0.0087 g           0.93 a            2.0 a
114 Endosulfan Sulfate...........          1031078  ...............  ...............  ...............  ...............           0.93 a            2.0 a
115 Endrin.......................            72208           0.18 g         0.0023 g          0.037 g         0.0023 g           0.76 a          0.81 aj
116 Endrin Aldehyde..............          7421934  ...............  ...............  ...............  ...............           0.76 a          0.81 aj
117 Heptachlor...................            76448           0.52 g         0.0038 g          0.053 g         0.0036 g       0.00021 ac       0.00021 ac
118 Heptachlor Epoxide...........          1024573           0.52 g         0.0038 g          0.053 g         0.0036 g       0.00010 ac       0.00011 ac
119 PCB-1242.....................         53469219  ...............          0.014 g  ...............           0.03 g
120 PCB-1254.....................         11097691  ...............          0.014 g  ...............           0.03 g
121 PCB-1221.....................         11104282  ...............          0.014 g  ...............           0.03 g
122 PCB-1232.....................         11141165  ...............          0.014 g  ...............           0.03 g
123 PCB-1248.....................         12672296  ...............          0.014 g  ...............           0.03 g
124 PCB-1260.....................         11096825  ...............          0.014 g  ...............           0.03 g
125a PCB-1016....................         12674112  ...............          0.014 g  ...............           0.03 g
125b Polychlorinated biphenyls     ...............  ...............  ...............  ...............  ...............        0.00017 q        0.00017 q
 (PCBs)..........................
126 Toxaphene....................          8001352             0.73           0.0002             0.21           0.0002       0.00073 ac       0.00075 ac
    Total Number of Criteria (h)   ...............               24               29               23               27               85               84
     =...........................
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 485]]

                                Footnotes

    a. Criteria revised to reflect current agency q1* or RfD, 
as contained in the Integrated Risk Information System (IRIS). The fish 
tissue bioconcentration factor (BCF) from the 1980 criteria documents 
was retained in all cases.
    b. The criteria refers to the inorganic form only.
    c. Criteria in the matrix based on carcinogenicity (10-6 
risk). For a risk level of 10-5, move the decimal point in 
the matrix value one place to the right.
    d. Criteria Maximum Concentration (CMC) = the highest concentration 
of a pollutant to which aquatic life can be exposed for a short period 
of time (1-hour average) without deleterious effects. Criteria 
Continuous Concentration (CCC) = the highest concentration of a 
pollutant to which aquatic life can be exposed for an extended period of 
time (4 days) without deleterious effects. [micro]g/L = micrograms per 
liter.
    e. Freshwater aquatic life criteria for these metals are expressed 
as a function of total hardness (mg/L as CaCO3), the 
pollutant's water effect ratio (WER) as defined in Sec. 131.36(c) and 
multiplied by an appropriate dissolved conversion factor as defined in 
Sec. 131.36(b)(2). For comparative purposes, the values displayed in 
this matrix are shown as dissolved metal and correspond to a total 
hardness of 100 mg/L and a water effect ratio of 1.0.
    f. Freshwater aquatic life criteria for pentachlorophenol are 
expressed as a function of pH, and are calculated as follows. Values 
displayed above in the matrix correspond to a pH of 7.8.

 CMC = exp(1.005(pH)-4.830)
 CCC = exp(1.005(pH)-5.290)

    g. Aquatic life criteria for these compounds were issued in 1980 
utilizing the 1980 Guidelines for criteria development. The acute values 
shown are final acute values (FAV) which by the 1980 Guidelines are 
instantaneous values as contrasted with a CMC which is a one-hour 
average.
    h. These totals simply sum the criteria in each column. For aquatic 
life, there are 31 priority toxic pollutants with some type of 
freshwater or saltwater, acute or chronic criteria. For human health, 
there are 85 priority toxic pollutants with either ``water + fish'' or 
``fish only'' criteria. Note that these totals count chromium as one 
pollutant even though EPA has developed criteria based on two valence 
states. In the matrix, EPA has assigned numbers 5a and 5b to the 
criteria for chromium to reflect the fact that the list of 126 priority 
toxic pollutants includes only a single listing for chromium.
    i. If the CCC for total mercury exceeds 0.012 [micro]g/l more than 
once in a 3-year period in the ambient water, the edible portion of 
aquatic species of concern must be analyzed to determine whether the 
concentration of methyl mercury exceeds the FDA action level (1.0 mg/
kg). If the FDA action level is exceeded, the State must notify the 
appropriate EPA Regional Administrator, initiate a revision of its 
mercury criterion in its water quality standards so as to protect 
designated uses, and take other appropriate action such as issuance of a 
fish consumption advisory for the affected area.
    j. No criteria for protection of human health from consumption of 
aquatic organisms (excluding water) was presented in the 1980 criteria 
document or in the 1986 Quality Criteria for Water. Nevertheless, 
sufficient information was presented in the 1980 document to allow a 
calculation of a criterion, even though the results of such a 
calculation were not shown in the document.
    k. The criterion for asbestos is the MCL (56 FR 3526, January 30, 
1991).
    l. [Reserved: This letter not used as a footnote.]
    m. Criteria for these metals are expressed as a function of the 
water effect ratio, WER, as defined in 40 CFR 131.36(c).

 CMC = column B1 or C1 value x WER
 CCC = column B2 or C2 value x WER

    n. EPA is not promulgating human health criteria for this 
contaminant. However, permit authorities should address this contaminant 
in NPDES permit actions using the State's existing narrative criteria 
for toxics.
    o. [Reserved: This letter not used as a footnote.]
    p. Criterion expressed as total recoverable.
    q. This criterion applies to total PCBs (e.g., the sum of all 
congener or isomer or homolog or Aroclor analyses).

                              General Notes

    1. This chart lists all of EPA's priority toxic pollutants whether 
or not criteria recommendations are available. Blank spaces indicate the 
absence of criteria recommendations. Because of variations in chemical 
nomenclature systems, this listing of toxic pollutants does not 
duplicate the listing in Appendix A of 40 CFR Part 423. EPA has added 
the Chemical Abstracts Service (CAS) registry numbers, which provide a 
unique identification for each chemical.
    2. The following chemicals have organoleptic based criteria 
recommendations that are not included on this chart (for reasons which 
are discussed in the preamble): copper, zinc, chlorobenzene, 2-
chlorophenol, 2,4-dichlorophenol, acenaphthene, 2,4-dimethylphenol, 3-
methyl-4-chlorophenol, hexachlorocyclopentadiene, pentachlorophenol, 
phenol.
    3. For purposes of this rulemaking, freshwater criteria and 
saltwater criteria apply as specified in 40 CFR 131.36(c).

    Note to paragraph (b)(1): On April 14, 1995, the Environmental 
Protection Agency

[[Page 486]]

issued a stay of certain criteria in paragraph (b)(1) of this section as 
follows: the criteria in columns B and C for arsenic, cadmium, chromium 
(VI), copper, lead, nickel, silver, and zinc; the criteria in B1 and C1 
for mercury; the criteria in column B for chromium (III); and the 
criteria in column C for selenium. The stay remains in effect until 
further notice.

    (2) Factors for Calculating Hardness-Dependent, Freshwater Metals 
Criteria

CMC=WER exp { mA[ln(hardness)]+bA{time}  x Acute 
Conversion Factor
CCC=WER exp { mC[ln(hardness)]+bC{time}  x Chronic 
Conversion Factor
Final CMC and CCC values should be rounded to two significant figures.

----------------------------------------------------------------------------------------------------------------
                                                                                          Freshwater conversion
                                                                                                 factors
               Metal                     mA           bA           mC           bC     -------------------------
                                                                                           Acute       Chronic
----------------------------------------------------------------------------------------------------------------
Cadmium...........................        1.128       -3.828       0.7852       -3.490    \a\ 0.944    \a\ 0.909
Chromium (III)....................       0.8190        3.688       0.8190        1.561        0.316        0.860
Copper............................       0.9422       -1.464       0.8545       -1.465        0.960        0.960
Lead..............................        1.273       -1.460        1.273       -4.705    \a\ 0.791    \a\ 0.791
Nickel............................       0.8460       3.3612       0.8460       1.1645        0.998        0.997
Silver............................         1.72        -6.52      \b\ N/A      \b\ N/A         0.85      \b\ N/A
Zinc..............................       0.8473       0.8604       0.8473       0.7614        0.978       0.986
----------------------------------------------------------------------------------------------------------------
Note to table: The term ``exp'' represents the base e exponential function.
Footnotes to table:
\a\ The freshwater conversion factors (CF) for cadmium and lead are hardness-dependent and can be calculated for
  any hardness [see limitations in Sec.  131.36(c)(4)] using the following equations:
 
 Cadmium
Acute: CF=1.136672--[(ln hardness)(0.041838)]
Chronic: CF=1.101672--[(ln hardness)(0.041838)]
Lead (Acute and Chronic): CF = 1.46203--[(ln hardness)(0.145712)]
 
 \b\ No chronic criteria are available for silver.

    (c) Applicability. (1) The criteria in paragraph (b) of this section 
apply to the States' designated uses cited in paragraph (d) of this 
section and supersede any criteria adopted by the State, except when 
State regulations contain criteria which are more stringent for a 
particular use in which case the State's criteria will continue to 
apply.
    (2) The criteria established in this section are subject to the 
State's general rules of applicability in the same way and to the same 
extent as are the other numeric toxics criteria when applied to the same 
use classifications including mixing zones, and low flow values below 
which numeric standards can be exceeded in flowing fresh waters.
    (i) For all waters with mixing zone regulations or implementation 
procedures, the criteria apply at the appropriate locations within or at 
the boundary of the mixing zones; otherwise the criteria apply 
throughout the waterbody including at the end of any discharge pipe, 
canal or other discharge point.
    (ii) A State shall not use a low flow value below which numeric 
standards can be exceeded that is less stringent than the following for 
waters suitable for the establishment of low flow return frequencies 
(i.e., streams and rivers):

                              Aquatic Life
Acute criteria (CMC)                 1 Q 10 or 1 B 3
Chronic criteria (CCC)               7 Q 10 or 4 B 3
                              Human Health
Non-carcinogens                      30 Q 5
Carcinogens                          Harmonic mean flow
 

Where:

CMC--criteria maximum concentration--the water quality criteria to 
protect against acute effects in aquatic life and is the highest 
instream concentration of a priority toxic pollutant consisting of a 
one-hour average not to be exceeded more than once every three years on 
the average;
CCC--criteria continuous concentration--the water quality criteria to 
protect against chronic effects in aquatic life is the highest instream 
concentration of a priority toxic pollutant consisting of a 4-day 
average not to be exceeded more than once every three years on the 
average;
1 Q 10 is the lowest one day flow with an average recurrence frequency 
of once in 10 years determined hydrologically;
1 B 3 is biologically based and indicates an allowable exceedence of 
once every 3 years. It is determined by EPA's computerized method (DFLOW 
model);
7 Q 10 is the lowest average 7 consecutive day low flow with an average 
recurrence frequency of once in 10 years determined hydrologically;
4 B 3 is biologically based and indicates an allowable exceedence for 4 
consecutive days once every 3 years. It is determined by EPA's 
computerized method (DFLOW model);
30 Q 5 is the lowest average 30 consecutive day low flow with an average 
recurrence frequency of once in 5 years determined hydrologically; and 
the harmonic mean

[[Page 487]]

flow is a long term mean flow value calculated by dividing the number of 
daily flows analyzed by the sum of the reciprocals of those daily flows.

    (iii) If a State does not have such a low flow value for numeric 
standards compliance, then none shall apply and the criteria included in 
paragraph (d) of this section herein apply at all flows.
    (3) The aquatic life criteria in the matrix in paragraph (b) of this 
section apply as follows:
    (i) For waters in which the salinity is equal to or less than 1 part 
per thousand 95% or more of the time, the applicable criteria are the 
freshwater criteria in Column B;
    (ii) For waters in which the salinity is equal to or greater than 10 
parts per thousand 95% or more of the time, the applicable criteria are 
the saltwater criteria in Column C; and
    (iii) For waters in which the salinity is between 1 and 10 parts per 
thousand as defined in paragraphs (c)(3) (i) and (ii) of this section, 
the applicable criteria are the more stringent of the freshwater or 
saltwater criteria. However, the Regional Administrator may approve the 
use of the alternative freshwater or saltwater criteria if 
scientifically defensible information and data demonstrate that on a 
site-specific basis the biology of the waterbody is dominated by 
freshwater aquatic life and that freshwater criteria are more 
appropriate; or conversely, the biology of the waterbody is dominated by 
saltwater aquatic life and that saltwater criteria are more appropriate.
    (4) Application of metals criteria. (i) For purposes of calculating 
freshwater aquatic life criteria for metals from the equations in 
paragraph (b)(2) of this section, the minimum hardness allowed for use 
in those equations shall not be less than 25 mg/l, as calcium carbonate, 
even if the actual ambient hardness is less than 25 mg/l as calcium 
carbonate. The maximum hardness value for use in those equations shall 
not exceed 400 mg/l as calcium carbonate, even if the actual ambient 
hardness is greater than 400 mg/l as calcium carbonate. The same 
provisions apply for calculating the metals criteria for the comparisons 
provided for in paragraph (c)(3)(iii) of this section.
    (ii) The hardness values used shall be consistent with the design 
discharge conditions established in paragraph (c)(2) of this section for 
flows and mixing zones.
    (iii) Except where otherwise noted, the criteria for metals 
(compounds 2, 4- 11, and 13, in 
paragraph (b) of this section) are expressed as dissolved metal. For 
purposes of calculating aquatic life criteria for metals from the 
equations in footnote m. in the criteria matrix in paragraph (b)(1) of 
this section and the equations in paragraphs (b)(2) of this section, the 
water-effect ratio is computed as a specific pollutant's acute or 
chronic toxicity values measured in water from the site covered by the 
standard, divided by the respective acute or chronic toxicity value in 
laboratory dilution water.
    (d) Criteria for Specific Jurisdictions--(1) Rhode Island, EPA 
Region 1. (i) All waters assigned to the following use classifications 
in the Water Quality Regulations for Water Pollution Control adopted 
under Chapters 46-12, 42-17.1, and 42-35 of the General Laws of Rhode 
Island are subject to the criteria in paragraph (d)(1)(ii) of this 
section, without exception:

              6.21 Freshwater                      6.22 Saltwater:
 Class A..................................    Class SA
 Class B..................................    Class SB
 Class C..................................    Class SC
 

    (ii) The following criteria from the matrix in paragraph (b)(1) of 
this section apply to the use classifications identified in paragraph 
(d)(1)(i) of this section:

------------------------------------------------------------------------
            Use classification                   Applicable criteria
------------------------------------------------------------------------
Class A...................................  These classifications are
Class B waters where water supply use is     assigned the criteria in
 designated.                                 Column D1--2, 68
Class B waters where water supply use is    Each of these
 not designated.                             classifications is assigned
Class C;..................................   the criteria in: Column D2--
Class SA;.................................   2, 68
Class SB;.................................
Class SC..................................
------------------------------------------------------------------------

    (iii) The human health criteria shall be applied at the 
10-5 risk level, consistent with the State policy. To 
determine appropriate value for carcinogens, see footnote c in the 
criteria matrix in paragraph (b)(1) of this section.

[[Page 488]]

    (2) Vermont, EPA Region 1. (i) All waters assigned to the following 
use classifications in the Vermont Water Quality Standards adopted under 
the authority of the Vermont Water Pollution Control Act (10 V.S.A., 
Chapter 47) are subject to the criteria in paragraph (d)(2)(ii) of this 
section, without exception:

Class A
Class B
Class C

    (ii) The following criteria from the matrix in paragraph (b)(1) of 
this section apply to the use classifications identified in paragraph 
(d)(2)(i) of this section:

------------------------------------------------------------------------
           Use classification                  Applicable criteria
------------------------------------------------------------------------
1. Classes A1, A2, B1, B2, B3..........  These classification are
                                          assigned the criterion in:
                                         Column B2--105.
------------------------------------------------------------------------

    (iii) The human health criteria shall be applied at the State-
proposed 10-6 risk level.
    (3) New Jersey, EPA Region 2. (i) All waters assigned to the 
following use classifications in the New Jersey Administrative Code 
(N.J.A.C.) 7:9-4.1 et seq., Surface Water Quality Standards, are subject 
to the criteria in paragraph (d)(3)(ii) of this section, without 
exception.

N.J.A.C. 7:9-4.12(b): Class PL
N.J.A.C. 7:9-4.12(c): Class FW2
N.J.A.C. 7:9-4.12(d): Class SE1
N.J.A.C. 7:9-4.12(e): Class SE2
N.J.A.C. 7:9-4.12(f): Class SE3
N.J.A.C. 7:9-4.12(g): Class SC
N.J.A.C. 7:9-4.13(a): Delaware River Zones 1C, 1D, and 1E
N.J.A.C. 7:9-4.13(b): Delaware River Zone 2
N.J.A.C. 7:9-4.13(c): Delaware River Zone 3
N.J.A.C. 7:9-4.13(d): Delaware River Zone 4
N.J.A.C. 7:9-4.13(e): Delaware River Zone 5
N.J.A.C. 7:9-4.13(f): Delaware River Zone 6

    (ii) The following criteria from the matrix in paragraph (b)(1) of 
this section apply to the use classifications identified in paragraph 
(d)(3)(i) of this section:

------------------------------------------------------------------------
           Use classification                  Applicable criteria
------------------------------------------------------------------------
1. Freshwater Pinelands, FW2...........  These classifications are each
                                          assigned the criteria in:
                                         i. Column B1--2, 4,
                                          5a, 5b, 6-11, 13.
                                         ii. Column B2--2, 4,
                                          5a, 5b, 6-10, 13.
                                         iii. Column D1--125b
                                          at a 10-6 risk level.
                                         iv. Column D2--125b at
                                          a 10-6 risk level.
                                         v. Column D2--23, 30,
                                          37, 42, 87, 89, 93 and 105 at
                                          a 10-5 risk level.
2. PL (Saline Water Pinelands), SE1,     These classifications are each
 SE2, SE3, SC, Delaware Bay Zone 6.       assigned the criteria in:
                                         i. Column C1--2, 4,
                                          5b, 6-11, 13.
                                         ii. Column C2--2, 4,
                                          5b, 6-10, 13.
                                         iii. Column D1--125b
                                          at a 10-6 risk level.
                                         iv. Column D2--125b at
                                          a 10-6 risk level.
                                         v. Column D2--23, 30,
                                          37, 42, 87, 89, 93 and 105 at
                                          a 10-5 risk level.
3. Delaware River Zones 1C, 1D, 1E, 2,   i. Column B1--none.
 3, 4, and 5.
                                         ii. Column B2--none.
                                         iii. Column D1--none.
                                         iv. Column D2--none.
4. Delaware River Zones 3, 4, and 5....  These classifications are each
                                          assigned the criteria in:
                                         i. Column C1--none.
                                         ii. Column C2--none.
                                         iii. Column D2--none.
------------------------------------------------------------------------

    (iii) The human health criteria shall be applied at the State-
proposed 10-6 risk level for EPA rated Class A, 
B1, and B2 carcinogens; EPA rated Class C 
carcinogens shall be applied at 10-5 risk level. To determine 
appropriate value for carcinogens, see footnote c. in the matrix in 
paragraph (b)(1) of this section.
    (4) Puerto Rico, EPA Region 2. (i) All waters assigned to the 
following use classifications in the Puerto Rico

[[Page 489]]

Water Quality Standards (promulgated by Resolution Number R-83-5-2) are 
subject to the criteria in paragraph (d)(4)(ii) of this section, without 
exception.

Article 2.2.2--Class SB
Article 2.2.3--Class SC
Article 2.2.4--Class SD

    (ii) The following criteria from the matrix in paragraph (b)(1) of 
this section apply to the use classifications identified in paragraph 
(d)(4)(i) of this section:

------------------------------------------------------------------------
           Use classification                  Applicable criteria
------------------------------------------------------------------------
Class SD...............................  Column B1-- 118.
                                         Column B2--s 8, 105,
                                          115, 118, 119, 120, 121, 122,
                                          123,124, 125a, 125b.
                                         Column D1--s 12, 16,
                                          27, 60, 61, 62, 64, 73, 74,
                                          92, 93, 103, 104, 114, 116,
                                          118, 119, 120, 121, 122, 123,
                                          124, 125a, 125b.
Class SB, Class SC.....................  Column C1--s 5b, 112,
                                          113, 118.
                                         Column C2--s 5b, 8,
                                          112, 113, 118, 119, 120, 121,
                                          122, 123, 124, 125a, 125b.
                                         Column D2--s 12, 16,
                                          27, 60, 61, 62, 64, 73, 74,
                                          87, 92, 93, 103, 104, 114,
                                          116, 118, 119, 120, 121, 122,
                                          123, 124, 125a, 125b.
------------------------------------------------------------------------

    (iii) The human health criteria shall be applied at the State-
proposed 10-5 risk level. To determine appropriate value for 
carcinogens, see footnote c, in the criteria matrix in paragraph (b)(1) 
of this section.
    (5) District of Columbia, EPA Region 3. (i) All waters assigned to 
the following use classifications in chapter 11 Title 21 DCMR, Water 
Quality Standards of the District of Columbia are subject to the 
criteria in paragraph (d)(5)(ii) of this section, without exception:

1101.2 Class C waters

    (ii) The following criteria from the matrix in paragraph (b)(1) of 
this section apply to the use classification identified in paragraph 
(d)(5)(i) of this section:

------------------------------------------------------------------------
           Use classification                  Applicable criteria
------------------------------------------------------------------------
1. Class C.............................  This classification is assigned
                                          the additional criteria in:
                                         Column B2; 10, 118,
                                          126.
------------------------------------------------------------------------

    (iii) The human health criteria shall be applied at the State-
adopted 10-6 risk level.
    (6) Florida, EPA Region 4. (i) All waters assigned to the following 
use classifications in Chapter 17-301 of the Florida Administrative Code 
(i.e., identified in Section 17-302.600) are subject to the criteria in 
paragraph (d)(6)(ii) of this section, without exception:

Class I
Class II
Class III

    (ii) The following criteria from the matrix paragraph (b)(1) of this 
section apply to the use classifications identified in paragraph 
(d)(6)(i) of this section:

------------------------------------------------------------------------
           Use classification                  Applicable criteria
------------------------------------------------------------------------
Class I................................  This classification is assigned
                                          the criteria in:
                                           Column D1--16
Class II...............................  This classification is assigned
Class III (marine).....................   the criteria in:
                                           Column D2--16
Class III (freshwater).................  This classification is assigned
                                          the criteria in:
                                         Column D2--16
------------------------------------------------------------------------


[[Page 490]]

    (iii) The human health criteria shall be applied at the State-
adopted 10-6 risk level.
    (7)-(8) [Reserved]
    (9) Kansas, EPA Region 7. (i) All waters assigned to the following 
use classification in the Kansas Department of Health and Environment 
regulations, K.A.R. 28-16-28b through K.A.R. 28-16-28f, are subject to 
the criteria in paragraph (d)(9)(ii) of this section, without exception.

Section (2)(A)--Special Aquatic Life Use Waters
Section (2)(B)--Expected Aquatic Life Use Waters
Section (2)(C)--Restricted Aquatic Life Use Waters
Section (3)--Domestic Water Supply.
Section (4)--Food Procurement Use.

    (ii) The following criteria from the matrix in paragraph (b)(1) of 
this section apply to the use classifications identified in paragraph 
(d)(9)(i) of this section:

------------------------------------------------------------------------
           Use classification                  Applicable criteria
------------------------------------------------------------------------
1. Sections (2)(A), (2)(B), (2)(C), (4)  These classifications are each
                                          assigned criteria as follows:
                                         i. Column B1, 2.
                                         ii. Column D2, 12, 21,
                                          29, 39, 46, 68, 79, 81, 86,
                                          93, 104, 114, 118.
2. Section (3).........................  This classification is assigned
                                          all criteria in:
                                         Column D1, all except 1, 9, 12, 14, 15, 17, 22,
                                          33, 36, 39, 44, 75, 77, 79,
                                          90, 112, 113, and 115.
------------------------------------------------------------------------

    (iii) The human health criteria shall be applied at the State-
adopted 10-6 risk level.
    (10) California, EPA Region 9. (i) All waters assigned any aquatic 
life or human health use classifications in the Water Quality Control 
Plans for the various Basins of the State (``Basin Plans''), as amended, 
adopted by the California State Water Resources Control Board 
(``SWRCB''), except for ocean waters covered by the Water Quality 
Control Plan for Ocean Waters of California (``Ocean Plan'') adopted by 
the SWRCB with resolution Number 90-27 on March 22, 1990, are subject to 
the criteria in paragraph (d)(10)(ii) of this section, without 
exception. These criteria amend the portions of the existing State 
standards contained in the Basin Plans. More particularly these criteria 
amend water quality criteria contained in the Basin Plan Chapters 
specifying water quality objectives (the State equivalent of federal 
water quality criteria) for the toxic pollutants identified in paragraph 
(d)(10)(ii) of this section. Although the State has adopted several use 
designations for each of these waters, for purposes of this action, the 
specific standards to be applied in paragraph (d)(10)(ii) of this 
section are based on the presence in all waters of some aquatic life 
designation and the presence or absence of the MUN use designation 
(Municipal and domestic supply). (See Basin Plans for more detailed use 
definitions.)
    (ii) The following criteria from the matrix in paragraph (b)(1) of 
this section apply to the water and use classifications defined in 
paragraph (d)(10)(i) of this section and identified below:

 
                                                           Applicable
             Water and use classification                   criteria
 
Waters of the State defined as bays or estuaries       These waters are
 except the Sacramento-San Joaquin Delta and San        assigned the
 Francisco Bay                                          criteria in:
                                                          Column B1--
                                                           pollutants 5a
                                                           and 14
                                                          Column B2--
                                                           pollutants 5a
                                                           and 14
                                                          Column C1--
                                                           pollutant 14
                                                          Column C2--
                                                           pollutant 14
                                                          Column D2--
                                                           pollutants 1,
                                                           12, 17, 18,
                                                           21, 22, 29,
                                                           30, 32, 33,
                                                           37, 38, 42-
                                                           44, 46, 48,
                                                           49, 54, 59,
                                                           66, 67, 68,
                                                           78-82, 85,
                                                           89, 90, 91,
                                                           93, 95, 96,
                                                           98

[[Page 491]]

 
Waters of the Sacramento--San Joaquin Delta and        These waters are
 waters of the State defined as inland (i.e., all       assigned the
 surface waters of the State not bays or estuaries or   criteria in:
 ocean) that include a MUN use designation             Column B1--
                                                        pollutants 5a
                                                        and 14
                                                       Column B2--
                                                        pollutants 5a
                                                        and 14
                                                       Column D1--
                                                        pollutants 1,
                                                        12, 15, 17, 18,
                                                        21, 22, 29, 30,
                                                        32, 33, 37, 38,
                                                        42-48, 49, 59,
                                                        66, 67, 68, 78-
                                                        82, 85, 89, 90,
                                                        91, 93, 95, 96,
                                                        98
Waters of the State defined as inland without an MUN   These waters are
 use designation                                        assigned the
                                                        criteria in:
                                                          Column B1--
                                                           pollutants 5a
                                                           and 14
                                                          Column B2--
                                                           pollutants 5a
                                                           and 14
                                                          Column D2--
                                                           pollutants 1,
                                                           12, 17, 18,
                                                           21, 22, 29,
                                                           30, 32, 33,
                                                           37, 38, 42-
                                                           44, 46, 48,
                                                           49, 54, 59,
                                                           66, 67, 68,
                                                           78-82, 85,
                                                           89, 90, 91,
                                                           93, 95, 96,
                                                           98
Waters of the San Joaquin River from the mouth of the  In addition to
 Merced River to Vernalis                               the criteria
                                                        assigned to
                                                        these waters
                                                        elsewhere in
                                                        this rule, these
                                                        waters are
                                                        assigned the
                                                        criteria in:
                                                          Column B2--
                                                           pollutant 10
Waters of Salt Slough, Mud Slough (north) and the San  In addition to
 Joaquin River, Sack Dam to the mouth of the Merced     the criteria
 River                                                  assigned to
                                                        these waters
                                                        elsewhere in
                                                        this rule, these
                                                        waters are
                                                        assigned the
                                                        criteria in:
                                                          Column B1--
                                                           pollutant 10
                                                          Column B2--
                                                           pollutant 10
Waters of San Francisco Bay upstream to and including  These waters are
 Suisun Bay and the Sacramento-San Joaquin Delta        assigned the
                                                        criteria in:
                                                          Column B1--
                                                           pollutants
                                                           5a, 10* and
                                                           14
                                                          Column B2--
                                                           pollutants
                                                           5a, 10* and
                                                           14
                                                          Column C1--
                                                           pollutant 14
                                                          Column C2--
                                                           pollutant 14
                                                          Column D2--
                                                           pollutants 1,
                                                           12, 17, 18,
                                                           21, 22, 29,
                                                           30, 32, 33,
                                                           37, 38, 42-
                                                           44, 46, 48,
                                                           49, 54, 59,
                                                           66, 67, 68,
                                                           78-82, 85,
                                                           89, 90, 91,
                                                           93, 95, 96,
                                                           98
All inland waters of the United States or enclosed     These waters are
 bays and estuaries that are waters of the United       assigned the
 States that include an MUN use designation and that    criteria for
 the State has either excluded or partially excluded    pollutants for
 from coverage under its Water Quality Control Plan     which the State
 for Inland Surface Waters of California, Tables 1      does not apply
 and 2, or its Water Quality Control Plan for           Table 1 or 2
 Enclosed Bays and Estuaries of California, Tables 1    standards. These
 and 2, or has deferred applicability of those          criteria are:
 tables. (Category (a), (b), and (c) waters described  Column B1--all
 on page 6 of Water Quality Control Plan for Inland     pollutants
 Surface Waters of California or page 6 of its Water   Column B2--all
 Quality Control Plan for Enclosed Bays and Estuaries   pollutants
 of California.)                                       Column D1--all
                                                        pollutants
                                                        except 2

[[Page 492]]

 
All inland waters of the United States that do not     These waters are
 include an MUN use designation and that the State      assigned the
 has either excluded or partially excluded from         criteria for
 coverage under its Water Quality Control Plan for      pollutants for
 Inland Surface Waters of California, Tables 1 and 2,   which the State
 or has deferred applicability of these tables.         does not apply
 (Category (a), (b), and (c) waters described on page   Table 1 or 2
 6 of Water Quality Control Plan for Inland Surface     standards. These
 Waters of California.)                                 criteria are:
                                                       Column B1--all
                                                        pollutants
                                                       Column B2--all
                                                        pollutants
                                                       Column D2--all
                                                        pollutants
                                                        except 2
All enclosed bays and estuaries that are waters of     These waters are
 the United States that do not include an MUN           assigned the
 designation and that the State has either excluded     criteria for
 or partially excluded from coverage under its Water    pollutants for
 Quality Control Plan for Inland Surface Waters of      which the State
 California, Tables 1 and 2, or its Water Quality       does not apply
 Control Plan for Enclosed Bays and Estuaries of        Table 1 or 2
 California, Tables 1 and 2, or has deferred            standards. These
 applicability of those tables. (Category (a), (b),     criteria are:
 and (c) waters described on page 6 of Water Quality   Column B1--all
 Control Plan for Inland Surface Waters of California   pollutants
 or page 6 of its Water Quality Control Plan for       Column B2--all
 Enclosed Bays and Estuaries of California.)            pollutants
                                                       Column C1--all
                                                        pollutants
                                                       Column C2--all
                                                        pollutants
                                                       Column D2--all
                                                        pollutants
                                                        except 2
 
*The fresh water selenium criteria are included for the San Francisco
  Bay estuary because high levels of bioaccumulation of selenium in the
  estuary indicate that the salt water criteria are underprotective for
  San Francisco Bay.

    (iii) The human health criteria shall be applied at the State-
adopted 10-6 risk level.
    (11) Nevada, EPA Region 9. (i) All waters assigned the use 
classifications in Chapter 445 of the Nevada Administrative Code (NAC), 
Nevada Water Pollution Control Regulations, which are referred to in 
paragraph (d)(11)(ii) of this section, are subject to the criteria in 
paragraph (d)(11)(ii) of this section, without exception. These criteria 
amend the existing State standards contained in the Nevada Water 
Pollution Control Regulations. More particularly, these criteria amend 
or supplement the table of numeric standards in NAC 445.1339 for the 
toxic pollutants identified in paragraph (d)(11)(ii) of this section.
    (ii) The following criteria from matrix in paragraph (b)(1) of this 
section apply to the waters defined in paragraph (d)(11)(i) of this 
section and identified below:

 
    Water and use classification             Applicable criteria
 
Waters that the State has included   These waters are assigned the
 in NAC 445.1339 where Municipal or   criteria in:
 domestic supply is a designated     Column B1--pollutant 118
 use                                 Column B2--pollutant 118
                                     Column D1--pollutants 15,
                                      16, 18, 19, 20, 21, 23, 26, 27,
                                      29, 30, 34, 37, 38, 42, 43, 55, 58-
                                      62, 64, 66, 73, 74, 78, 82, 85, 87-
                                      89, 91, 92, 96, 98, 100, 103, 104,
                                      105, 114, 116, 117, 118
Waters that the State has included   These waters are assigned the
 in NAC 445.1339 where Municipal or   criteria in:
 domestic supply is not a            Column B1--pollutant 118
 designated use                      Column B2--pollutant 118
                                     Column D2--all pollutants except
                                      2.
 

    (iii) The human health criteria shall be applied at the 
10-5 risk level, consistent with State policy. To determine 
appropriate value for carcinogens, see footnote c in the criteria matrix 
in paragraph (b)(1) of this section.
    (12) Alaska, EPA Region 10. (i) All waters assigned to the following 
use classifications in the Alaska Administrative Code (AAC), Chapter 18 
(i.e., identified in 18 AAC 70.020) are subject to the criteria in 
paragraph (d)(12)(ii) of this section, without exception:


[[Page 493]]


70.020.(1) (A) Fresh Water
70.020.(1) (A) Water Supply
    (i) Drinking, culinary, and food processing,
    (iii) Aquaculture;
70.020.(1) (B) Water Recreation
    (i) Contact recreation,
    (ii) Secondary recreation;
70.020.(1) (C) Growth and propagation of fish, shellfish, other aquatic 
          life, and wildlife
70.020.(2) (A) Marine Water
70.020.(2) (A) Water Supply
    (i) Aquaculture,
70.020.(2) (B) Water Recreation
    (i) contact recreation,
    (ii) secondary recreation;
70.020.(2) (C) Growth and propagation of fish, shellfish, other aquatic 
          life, and wildlife;
70.020.(2) (D) Harvesting for consumption of raw mollusks or other raw 
          aquatic life.

    (ii) The following criteria from the matrix in paragraph (b)(1) of 
this section apply to the use classifications identified in paragraph 
(d)(12)(i) of this section:

------------------------------------------------------------------------
           Use classification                  Applicable criteria
------------------------------------------------------------------------
(1)(A)(i)..............................  Column D1--s 16, 18-
                                          21, 23, 26, 27, 29, 30, 32,
                                          37, 38, 42-44, 53, 55, 59-62,
                                          64, 66, 68, 73, 74, 78, 82,
                                          85, 88, 89, 91-93, 96, 98, 102-
                                          105, 107-111, 117-126.
(1)(A)(iii)............................  Column D2--s 14, 16,
                                          18-21, 22, 23, 26, 27, 29, 30,
                                          32, 37, 38, 42-44, 46, 53, 54,
                                          55, 59-62, 64, 66, 68, 73, 74,
                                          78, 82, 85, 88-93, 95, 96, 98,
                                          102-105, 107-111, 115-126.
(1)(B)(i), (1)(B)(ii), (1)(C)..........  Column D2--s 14, 16,
                                          18-21, 22, 23, 26, 27, 29, 30,
                                          32, 37, 38, 42-44, 46, 53, 54,
                                          55, 59-62, 64, 66, 68, 73, 74,
                                          78, 82, 85, 88-93, 95, 96, 98,
                                          102-105, 107-111, 115-126.
(2)(A)(i), (2)(B)(i), and (2)(B)ii,      Column D2--s 14, 16,
 (2)(C), (2)(D).                          18-21, 22, 23, 26, 27, 29, 30,
                                          32, 37, 38, 42-44, 46, 53, 54,
                                          55, 59-62, 64, 66, 68, 73, 74,
                                          78, 82, 85, 88-93, 95, 96, 98,
                                          102-105, 107-111, 115-126.
------------------------------------------------------------------------

    (iii) The human health criteria shall be applied at the State-
proposed risk level of 10-5. To determine appropriate value 
for carcinogens, see footnote c in the criteria matrix in paragraph 
(b)(1) of this section.
    (13) [Reserved]
    (14) Washington, EPA Region 10. (i) All waters assigned to the 
following use classifications in the Washington Administrative Code 
(WAC), Chapter 173-201 (i.e., identified in WAC 173-201-045) are subject 
to the criteria in paragraph (d)(14)(ii) of this section, without 
exception:

173-201-045
    Fish and Shellfish
    Fish
    Water Supply (domestic)
    Recreation

    (ii) The following criteria from the matrix in paragraph (b)(1) of 
this section apply to the use classifications identified in paragraph 
(d)(14)(i) of this section:

------------------------------------------------------------------------
           Use classification                  Applicable criteria
------------------------------------------------------------------------
Fish and Shellfish; Fish...............  These classifications are
                                          assigned the criteria in:
                                          Column D2--all.
Water Supply (domestic)................  These classifications are
                                          assigned the criteria in:
                                          Column D1--all.
Recreation.............................  This classification is assigned
                                          the criteria in: Column D2--
                                          Marine waters and freshwaters
                                          not protected for domestic
                                          water supply.
------------------------------------------------------------------------

    (iii) The human health criteria shall be applied at the State 
proposed risk level of 10-6.

[57 FR 60910, Dec. 22, 1992]

    Editorial Note: For Federal Register citations affecting Sec. 
131.36, see the List of CFR Sections Affected, which appears in the 
Finding Aids section of the printed volume and on GPO Access.



Sec. 131.37  California.

    (a) Additional criteria. The following criteria are applicable to 
waters specified in the Water Quality Control Plan for Salinity for the 
San Francisco Bay/Sacramento-San Joaquin Delta Estuary, adopted by the 
California State Water Resources Control Board in State Board Resolution 
No. 91-34 on May 1, 1991:

[[Page 494]]

    (1) Estuarine habitat criteria. (i) General rule. (A) Salinity 
(measured at the surface) shall not exceed 2640 micromhos/centimeter 
specific conductance at 25 [deg]C (measured as a 14-day moving average) 
at the Confluence of the Sacramento and San Joaquin Rivers throughout 
the period each year from February 1 through June 30, and shall not 
exceed 2640 micromhos/centimeter specific conductance at 25 [deg]C 
(measured as a 14-day moving average) at the specific locations noted in 
Table 1 near Roe Island and Chipps Island for the number of days each 
month in the February 1 to June 30 period computed by reference to the 
following formula:

Number of days required in Month X = Total number of days in Monthx* (1 
    - 1/(1+e\K\)

where

K = A + (B*natural logarithm of the previous month's 8-River Index);
A and B are determined by reference to Table 1 for the Roe Island and 
Chipps Island locations;
x is the calendar month in the February 1 to June 30 period;
and e is the base of the natural (or Napierian) logarithm.


Where the number of days computed in this equation in paragraph 
(a)(1)(i)(A) of this section shall be rounded to the nearest whole 
number of days. When the previous month's 8-River Index is less than 
500,000 acre-feet, the number of days required for the current month 
shall be zero.

   Table 1. Constants applicable to each of the monthly equations to determine monthly requirements described.
----------------------------------------------------------------------------------------------------------------
                                                           Chipps Island             Roe Island (if triggered)
                     Month X                     ---------------------------------------------------------------
                                                         A               B               A               B
----------------------------------------------------------------------------------------------------------------
Feb.............................................            -\1\            -\1\          -14.36          +2.068
Mar.............................................         -105.16         +15.943          -20.79          +2.741
Apr.............................................          -47.17          +6.441          -28.73          +3.783
May.............................................          -94.93         +13.662          -54.22          +6.571
June............................................          -81.00          +9.961         -92.584        +10.699
----------------------------------------------------------------------------------------------------------------
\1\ Coefficients for A and B are not provided at Chipps Island for February, because the 2640 micromhos/cm
  specific conductance criteria must be maintained at Chipps Island throughout February under all historical 8-
  River Index values for January.

    (B) The Roe Island criteria apply at the salinity measuring station 
maintained by the U.S. Bureau of Reclamation at Port Chicago (km 64). 
The Chipps Island criteria apply at the Mallard Slough Monitoring Site, 
Station D-10 (RKI RSAC-075) maintained by the California Department of 
Water Resources. The Confluence criteria apply at the Collinsville 
Continuous Monitoring Station C-2 (RKI RSAC-081) maintained by the 
California Department of Water Resources.
    (ii) Exception. The criteria at Roe Island shall be required for any 
given month only if the 14-day moving average salinity at Roe Island 
falls below 2640 micromhos/centimeter specific conductance on any of the 
last 14 days of the previous month.
    (2) Fish migration criteria--(i) General rule--(A) Sacramento River. 
Measured Fish Migration criteria values for the Sacramento River shall 
be at least the following:

At temperatures less than below 61 [deg]F: SRFMC = 1.35
At temperatures between 61 [deg]F and 72 [deg]F: SRFMC = 6.96-.092 * 
    Fahrenheit temperature
At temperatures greater than 72 [deg]F: SRFMC = 0.34


where SRFMC is the Sacramento River Fish Migration criteria value. 
Temperature shall be the water temperature at release of tagged salmon 
smolts into the Sacramento River at Miller Park.
    (B) San Joaquin River. Measured Fish Migration criteria values on 
the San Joaquin River shall be at least the following:

For years in which the SJVIndex is 2.5: SJFMC = (-0.012) + 
    0.184*SJVIndex
In other years: SJFMC = 0.205 + 0.0975*SJVIndex


[[Page 495]]



where SJFMC is the San Joaquin River Fish Migration criteria value, and 
SJVIndex is the San Joaquin Valley Index in million acre feet (MAF)
    (ii) Computing fish migration criteria values for Sacramento River. 
In order to assess fish migration criteria values for the Sacramento 
River, tagged fall-run salmon smolts will be released into the 
Sacramento River at Miller Park and captured at Chipps Island, or 
alternatively released at Miller Park and Port Chicago and recovered 
from the ocean fishery, using the methodology described in this 
paragraph (a)(2)(ii). An alternative methodology for computing fish 
migration criteria values can be used so long as the revised methodology 
is calibrated with the methodology described in this paragraph 
(a)(2)(ii) so as to maintain the validity of the relative index values. 
Sufficient releases shall be made each year to provide a statistically 
reliable verification of compliance with the criteria. These criteria 
will be considered attained when the sum of the differences between the 
measured experimental value and the stated criteria value (i.e., 
measured value minus stated value) for each experimental release 
conducted over a three year period (the current year and the previous 
two years) shall be greater than or equal to zero. Fish for release are 
to be tagged at the hatchery with coded-wire tags, and fin clipped. 
Approximately 50,000 to 100,000 fish of smolt size (size greater than 75 
mm) are released for each survival index estimate, depending on expected 
mortality. As a control for the ocean recovery survival index, one or 
two groups per season are released at Benecia or Pt. Chicago. From each 
upstream release of tagged fish, fish are to be caught over a period of 
one to two weeks at Chipps Island. Daylight sampling at Chipps Island 
with a 9.1 by 7.9 m, 3.2 mm cod end, midwater trawl is begun 2 to 3 days 
after release. When the first fish is caught, full-time trawling 7 days 
a week should begin. Each day's trawling consists of ten 20 minute tows 
generally made against the current, and distributed equally across the 
channel.
    (A) The Chipps Island smolt survival index is calculated as:

SSI=R/MT(0.007692)

where

R=number of recaptures of tagged fish
M=number of marked (tagged) fish released
T=proportion of time sampled vs total time tagged fish were passing the 
site (i.e. time between first and last tagged fish recovery)


Where the value 0.007692 is the proportion of the channel width fished 
by the trawl, and is calculated as trawl width/channel width.
    (B) Recoveries of tagged fish from the ocean salmon fishery two to 
four years after release are also used to calculate a survival index for 
each release. Smolt survival indices from ocean recoveries are 
calculated as:

OSI=R1/M1/R2/M2

where

R1=number of tagged adults recovered from the upstream 
release
M1=number released upstream
R2=number of tagged adults recovered from the Port Chicago 
release
M2=number released at Port Chicago

    (1) The number of tagged adults recovered from the ocean fishery is 
provided by the Pacific States Marine Fisheries Commission, which 
maintains a port sampling program.
    (2) [Reserved]
    (iii) Computing fish migration criteria values for San Joaquin 
River. In order to assess annual fish migration criteria values for the 
San Joaquin River, tagged salmon smolts will be released into the San 
Joaquin River at Mossdale and captured at Chipps Island, or 
alternatively released at Mossdale and Port Chicago and recovered from 
the ocean fishery, using the methodology described in paragraph 
(a)(2)(iii). An alternative methodology for computing fish migration 
criteria values can be used so long as the revised methodology is 
calibrated with the methodology described below so as to maintain the 
validity of the relative index values. Sufficient releases shall be made 
each year to provide a statistically reliable estimate of the SJFMC for 
the year. These criteria will be considered attained when the sum of the 
differences between the measured experimental value and the stated 
criteria value (i.e., measured value minus stated value) for each 
experimental release conducted over a three year period (the current 
year and the previous

[[Page 496]]

two years) shall be greater than or equal to zero.
    (A) Fish for release are to be tagged at the hatchery with coded-
wire tags, and fin clipped. Approximately 50,000 to 100,000 fish of 
smolt size (size greater than 75 mm) are released for each survival 
index estimate, depending on expected mortality. As a control for the 
ocean recovery survival index, one or two groups per season are released 
at Benicia or Pt. Chicago. From each upstream release of tagged fish, 
fish are to be caught over a period of one to two weeks at Chipps 
Island. Daylight sampling at Chipps Island with a 9.1 by 7.9 m, 3.2 mm 
cod end, midwater trawl is begun 2 to 3 days after release. When the 
first fish is caught, full-time trawling 7 days a week should begin. 
Each day's trawling consists of ten 20 minute tows generally made 
against the current, and distributed equally across the channel.
    (B) The Chipps Island smolt survival index is calculated as:

SSI=R/MT(0.007692)

where

R=number of recaptures of tagged fish
M=number of marked (tagged) fish released
T=proportion of time sampled vs total time tagged fish were passing the 
site (i.e. time between first and last tagged fish recovery)

Where the value 0.007692 is the proportion of the channel width fished 
by the trawl, and is calculated as trawl width/channel width.
    (C) Recoveries of tagged fish from the ocean salmon fishery two to 
four years after release are also used to calculate a survival index for 
each release. Smolt survival indices from ocean recoveries are 
calculated as:

OSI=R1/M1 / R2/M2

where

R1=number of tagged adults recovered from the upstream 
release
M1=number released upstream
R2=number of tagged adults recovered from the Port Chicago 
release
M2=number released at Port Chicago

    (1) The number of tagged adults recovered from the ocean fishery is 
provided by the Pacific States Marine Fisheries Commission, which 
maintains a port sampling program.
    (2) [Reserved]
    (3) Suisun marsh criteria. (i) Water quality conditions sufficient 
to support a natural gradient in species composition and wildlife 
habitat characteristic of a brackish marsh throughout all elevations of 
the tidal marshes bordering Suisun Bay shall be maintained. Water 
quality conditions shall be maintained so that none of the following 
occurs: Loss of diversity; conversion of brackish marsh to salt marsh; 
for animals, decreased population abundance of those species vulnerable 
to increased mortality and loss of habitat from increased water 
salinity; or for plants, significant reduction in stature or percent 
cover from increased water or soil salinity or other water quality 
parameters.
    (ii) [Reserved]
    (b) Revised criteria. The following criteria are applicable to state 
waters specified in Table 1-1, at Section (C)(3) (``Striped Bass--
Salinity : 3. Prisoners Point--Spawning) of the Water Quality Control 
Plan for Salinity for the San Francisco Bay--Sacramento/San Joaquin 
Delta Estuary, adopted by the California State Water Resources Control 
Board in State Board Resolution No. 91-34 on May 1, 1991:

[[Page 497]]



--------------------------------------------------------------------------------------------------------------------------------------------------------
                              Sampling site Nos (I--                                                      San Joaquin
          Location                    A/RKI)            Parameter       Description       Index type     Valley Index        Dates            Values
--------------------------------------------------------------------------------------------------------------------------------------------------------
San Joaquin River at Jersey   D15/RSAN018,           Specific.......  14-day running   Not Applicable.  2.5  April 1 to May   0.44 micro-
 Point, San Andreas Landing,  C4/RSAN032,            Conductance....   average of                        MAF             31.              mhos.
 Prisoners Point, Buckley     D29/RSAN038,           @ 25 [deg]C....   mean daily for
 Cove, Rough and Ready        P8/RSAN056,                              the period not
 Island, Brandt Bridge,       -/RSAN062,                               more than
 Mossdale, and Vernalis.      C6/RSAN073,                              value shown,
                              C7/RSAN087,                              in mmhos.
                              C10/RSAN112
San Joaquin River at Jersey   D15/RSAN018,           Specific         14-day running   Not Applicable.  <=2.5 MAF       April 1 to May   0.44 micro-
 Point, San Andreas Landing   C4/RSAN032,             Conductance.     average of                                        31.              mhos.
 and Prisoners Point.         D29/RSAN038                              mean daily for
                                                                       the period not
                                                                       more than
                                                                       value shown,
                                                                       in mmhos.
--------------------------------------------------------------------------------------------------------------------------------------------------------

    (c) Definitions. Terms used in paragraphs (a) and (b) of this 
section, shall be defined as follows:
    (1) Water year. A water year is the twelve calendar months beginning 
October 1.
    (2) 8-River Index. The flow determinations are made and are 
published by the California Department of Water Resources in Bulletin 
120. The 8-River Index shall be computed as the sum of flows at the 
following stations:
    (i) Sacramento River at Band Bridge, near Red Bluff;
    (ii) Feather River, total inflow to Oroville Reservoir;
    (iii) Yuba River at Smartville;
    (iv) American River, total inflow to Folsom Reservoir;
    (v) Stanislaus River, total inflow to New Melones Reservoir;
    (vi) Tuolumne River, total inflow to Don Pedro Reservoir;
    (vii) Merced River, total inflow to Exchequer Reservoir; and
    (viii) San Joaquin River, total inflow to Millerton Lake.
    (3) San Joaquin Valley Index. (i) The San Joaquin Valley Index is 
computed according to the following formula:

ISJ=0.6X+0.2Y and 0.2Z

where

ISJ=San Joaquin Valley Index
X=Current year's April-July San Joaquin Valley unimpaired runoff
Y=Current year's October-March San Joaquin Valley unimpaired runoff
Z=Previous year's index in MAF, not to exceed 0.9 MAF

    (ii) Measuring San Joaquin Valley unimpaired runoff. San Joaquin 
Valley unimpaired runoff for the current water year is a forecast of the 
sum of the following locations: Stanislaus River, total flow to New 
Melones Reservoir; Tuolumne River, total inflow to Don Pedro Reservoir; 
Merced River, total flow to Exchequer Reservoir; San Joaquin River, 
total inflow to Millerton Lake.
    (4) Salinity. Salinity is the total concentration of dissolved ions 
in water. It shall be measured by specific conductance in accordance 
with the procedures set forth in 40 CFR 136.3, Table 1B, Parameter 64.

[60 FR 4707, Jan. 24, 1995]

[[Page 498]]



Sec. 131.38  Establishment of numeric criteria for priority toxic pollutants 

for the State of California.

    (a) Scope. This section promulgates criteria for priority toxic 
pollutants in the State of California for inland surface waters and 
enclosed bays and estuaries. This section also contains a compliance 
schedule provision.
    (b)(1) Criteria for Priority Toxic Pollutants in the State of 
California as described in the following table:
[GRAPHIC] [TIFF OMITTED] TR18MY00.007


[[Page 499]]


[GRAPHIC] [TIFF OMITTED] TR18MY00.008


[[Page 500]]


[GRAPHIC] [TIFF OMITTED] TR18MY00.009


[[Page 501]]


[GRAPHIC] [TIFF OMITTED] TR18MY00.010

                 Footnotes to table in paragraph (b)(1):

    a. Criteria revised to reflect the Agency q1* or RfD, as contained 
in the Integrated Risk Information System (IRIS) as of October 1, 1996. 
The fish tissue bioconcentration factor (BCF) from the 1980 documents 
was retained in each case.
    b. Criteria apply to California waters except for those waters 
subject to objectives in Tables III-2A and III-2B of the San Francisco 
Regional Water Quality Control Board's (SFRWQCB) 1986 Basin Plan that 
were adopted by the SFRWQCB and the State Water Resources Control Board, 
approved by EPA, and which continue to apply. For copper and nickel, 
criteria apply to California waters except for waters south of Dumbarton 
Bridge in San Francisco Bay that are subject to the objectives in the 
SFRWQCB's Basin Plan as amended by SFRWQCB Resolution R2-2002-0061, 
dated May 22, 2002, and approved by the State Water Resources Control 
Board. EPA approved the aquatic life site-specific objectives on January 
21, 2003. The copper and nickel aquatic life site-specific objectives 
contained in the amended Basin Plan apply instead.
    c. Criteria are based on carcinogenicity of 10 (-6) risk.
    d. Criteria Maximum Concentration (CMC) equals the highest 
concentration of a pollutant to which aquatic life can be exposed for a 
short period of time without deleterious effects. Criteria Continuous 
Concentration (CCC) equals the highest concentration of a pollutant to 
which aquatic life can be exposed for an extended period of time (4 
days) without deleterious effects. ug/L equals micrograms per liter.
    e. Freshwater aquatic life criteria for metals are expressed as a 
function of total hardness (mg/L) in the water body. The equations are 
provided in matrix at paragraph (b)(2) of this section. Values displayed 
above in the matrix correspond to a total hardness of 100 mg/l.
    f. Freshwater aquatic life criteria for pentachlorophenol are 
expressed as a function of pH, and are calculated as follows:

[[Page 502]]

Values displayed above in the matrix correspond to a pH of 7.8. CMC = 
exp(1.005(pH)-4.869). CCC = exp(1.005(pH)-5.134).
    g. This criterion is based on 304(a) aquatic life criterion issued 
in 1980, and was issued in one of the following documents: Aldrin/
Dieldrin (EPA 440/5-80-019), Chlordane (EPA 440/5-80-027), DDT (EPA 440/
5-80-038), Endosulfan (EPA 440/5-80-046), Endrin (EPA 440/5-80-047), 
Heptachlor (440/5-80-052), Hexachlorocyclohexane (EPA 440/5-80-054), 
Silver (EPA 440/5-80-071). The Minimum Data Requirements and derivation 
procedures were different in the 1980 Guidelines than in the 1985 
Guidelines. For example, a ``CMC'' derived using the 1980 Guidelines was 
derived to be used as an instantaneous maximum. If assessment is to be 
done using an averaging period, the values given should be divided by 2 
to obtain a value that is more comparable to a CMC derived using the 
1985 Guidelines.
    h. These totals simply sum the criteria in each column. For aquatic 
life, there are 23 priority toxic pollutants with some type of 
freshwater or saltwater, acute or chronic criteria. For human health, 
there are 92 priority toxic pollutants with either ``water + organism'' 
or ``organism only'' criteria. Note that these totals count chromium as 
one pollutant even though EPA has developed criteria based on two 
valence states. In the matrix, EPA has assigned numbers 5a and 5b to the 
criteria for chromium to reflect the fact that the list of 126 priority 
pollutants includes only a single listing for chromium.
    i. Criteria for these metals are expressed as a function of the 
water-effect ratio, WER, as defined in paragraph (c) of this section. 
CMC = column B1 or C1 valuexWER; CCC = column B2 or C2 valuexWER.
    j. No criterion for protection of human health from consumption of 
aquatic organisms (excluding water) was presented in the 1980 criteria 
document or in the 1986 Quality Criteria for Water. Nevertheless, 
sufficient information was presented in the 1980 document to allow a 
calculation of a criterion, even though the results of such a 
calculation were not shown in the document.
    k. The CWA 304(a) criterion for asbestos is the MCL.
    l. [Reserved]
    m. These freshwater and saltwater criteria for metals are expressed 
in terms of the dissolved fraction of the metal in the water column. 
Criterion values were calculated by using EPA's Clean Water Act 304(a) 
guidance values (described in the total recoverable fraction) and then 
applying the conversion factors in Sec. 131.36(b)(1) and (2).
    n. EPA is not promulgating human health criteria for these 
contaminants. However, permit authorities should address these 
contaminants in NPDES permit actions using the State's existing 
narrative criteria for toxics.
    o. These criteria were promulgated for specific waters in California 
in the National Toxics Rule (``NTR''), at Sec. 131.36. The specific 
waters to which the NTR criteria apply include: Waters of the State 
defined as bays or estuaries and waters of the State defined as inland, 
i.e., all surface waters of the State not ocean waters. These waters 
specifically include the San Francisco Bay upstream to and including 
Suisun Bay and the Sacramento-San Joaquin Delta. This section does not 
apply instead of the NTR for this criterion.
    p. A criterion of 20 ug/l was promulgated for specific waters in 
California in the NTR and was promulgated in the total recoverable form. 
The specific waters to which the NTR criterion applies include: Waters 
of the San Francisco Bay upstream to and including Suisun Bay and the 
Sacramento-San Joaquin Delta; and waters of Salt Slough, Mud Slough 
(north) and the San Joaquin River, Sack Dam to the mouth of the Merced 
River. This section does not apply instead of the NTR for this 
criterion. The State of California adopted and EPA approved a site 
specific criterion for the San Joaquin River, mouth of Merced to 
Vernalis; therefore, this section does not apply to these waters.
    q. This criterion is expressed in the total recoverable form. This 
criterion was promulgated for specific waters in California in the NTR 
and was promulgated in the total recoverable form. The specific waters 
to which the NTR criterion applies include: Waters of the San Francisco 
Bay upstream to and including Suisun Bay and the Sacramento-San Joaquin 
Delta; and waters of Salt Slough, Mud Slough (north) and the San Joaquin 
River, Sack Dam to Vernalis. This criterion does not apply instead of 
the NTR for these waters. This criterion applies to additional waters of 
the United States in the State of California pursuant to 40 CFR 
131.38(c). The State of California adopted and EPA approved a site-
specific criterion for the Grassland Water District, San Luis National 
Wildlife Refuge, and the Los Banos State Wildlife Refuge; therefore, 
this criterion does not apply to these waters.
    r. These criteria were promulgated for specific waters in California 
in the NTR. The specific waters to which the NTR criteria apply include: 
Waters of the State defined as bays or estuaries including the San 
Francisco Bay upstream to and including Suisun Bay and the Sacramento-
San Joaquin Delta. This section does not apply instead of the NTR for 
these criteria.
    s. These criteria were promulgated for specific waters in California 
in the NTR. The specific waters to which the NTR criteria apply include: 
Waters of the Sacramento-San Joaquin Delta and waters of the State 
defined as inland ( i.e., all surface waters of the State not bays or 
estuaries or ocean) that include a MUN use designation. This section

[[Page 503]]

does not apply instead of the NTR for these criteria.
    t. These criteria were promulgated for specific waters in California 
in the NTR. The specific waters to which the NTR criteria apply include: 
Waters of the State defined as bays and estuaries including San 
Francisco Bay upstream to and including Suisun Bay and the Sacramento-
San Joaquin Delta; and waters of the State defined as inland (i.e., all 
surface waters of the State not bays or estuaries or ocean) without a 
MUN use designation. This section does not apply instead of the NTR for 
these criteria.
    u. PCBs are a class of chemicals which include aroclors 1242, 1254, 
1221, 1232, 1248, 1260, and 1016, CAS numbers 53469219, 11097691, 
11104282, 11141165, 12672296, 11096825, and 12674112, respectively. The 
aquatic life criteria apply to the sum of this set of seven aroclors.
    v. This criterion applies to total PCBs, e.g., the sum of all 
congener or isomer or homolog or aroclor analyses.
    w. This criterion has been recalculated pursuant to the 1995 
Updates: Water Quality Criteria Documents for the Protection of Aquatic 
Life in Ambient Water, Office of Water, EPA-820-B-96-001, September 
1996. See also Great Lakes Water Quality Initiative Criteria Documents 
for the Protection of Aquatic Life in Ambient Water, Office of Water, 
EPA-80-B-95-004, March 1995.
    x. The State of California has adopted and EPA has approved site 
specific criteria for the Sacramento River (and tributaries) above 
Hamilton City; therefore, these criteria do not apply to these waters.

               General Notes to Table in Paragraph (b)(1)

    1. The table in this paragraph (b)(1) lists all of EPA's priority 
toxic pollutants whether or not criteria guidance are available. Blank 
spaces indicate the absence of national section 304(a) criteria 
guidance. Because of variations in chemical nomenclature systems, this 
listing of toxic pollutants does not duplicate the listing in Appendix A 
to 40 CFR Part 423-126 Priority Pollutants. EPA has added the Chemical 
Abstracts Service (CAS) registry numbers, which provide a unique 
identification for each chemical.
    2. The following chemicals have organoleptic-based criteria 
recommendations that are not included on this chart: zinc, 3-methyl-4-
chlorophenol.
    3. Freshwater and saltwater aquatic life criteria apply as specified 
in paragraph (c)(3) of this section.

    (2) Factors for Calculating Metals Criteria. Final CMC and CCC 
values should be rounded to two significant figures.

 (i) CMC = WER x (Acute Conversion Factor) x (exp{mA[1n 
    (hardness)]+bA{time} )
 (ii) CCC = WER x (Chronic Conversion Factor) x 
    (exp{mC[ln(hardness)]+bC{time} )
 (iii) Table 1 to paragraph (b)(2) of this section:

----------------------------------------------------------------------------------------------------------------
                      Metal                             mA              bA              mC              bC
----------------------------------------------------------------------------------------------------------------
Cadmium.........................................          1.128          -3.6867          0.7852         -2.715
Copper..........................................          0.9422         -1.700           0.8545         -1.702
Chromium (III)..................................          0.8190          3.688           0.8190          1.561
Lead............................................          1.273          -1.460           1.273          -4.705
Nickel..........................................          0.8460          2.255           0.8460          0.0584
Silver..........................................          1.72           -6.52
Zinc............................................          0.8473          0.884           0.8473          0.884
----------------------------------------------------------------------------------------------------------------
Note to Table 1: The term ``exp'' represents the base e exponential function.

    (iv) Table 2 to paragraph (b)(2) of this section:

----------------------------------------------------------------------------------------------------------------
                                                    Conversion        CF for                        CF \a\ for
                                                 factor (CF) for    freshwater        CF for         saltwater
                     Metal                          freshwater        chronic        saltwater        chronic
                                                  acute criteria     criteria     acute criteria     criteria
----------------------------------------------------------------------------------------------------------------
Antimony.......................................       (\d\)            (\d\)           (\d\)           (\d\)
Arsenic........................................           1.000            1.000           1.000           1.000
Beryllium......................................       (\d\)            (\d\)           (\d\)           (\d\)
Cadmium........................................       \b\ 0.944        \b\ 0.909           0.994           0.994
Chromium (III).................................           0.316            0.860       (\d\)           (\d\)
Chromium (VI)..................................           0.982            0.962           0.993           0.993
Copper.........................................           0.960            0.960           0.83            0.83
Lead...........................................       \b\ 0.791        \b\ 0.791           0.951           0.951
Mercury........................................  ...............  ..............  ..............  ..............
Nickel.........................................           0.998            0.997           0.990           0.990
Selenium.......................................  ...............       (\c\)               0.998           0.998

[[Page 504]]

 
Silver.........................................           0.85         (\d\)               0.85        (\d\)
Thallium.......................................       (\d\)            (\d\)           (\d\)           (\d\)
Zinc...........................................           0.978            0.986           0.946           0.946 
----------------------------------------------------------------------------------------------------------------
Footnotes to Table 2 of Paragraph (b)(2):
\a\ Conversion Factors for chronic marine criteria are not currently available. Conversion Factors for acute
  marine criteria have been used for both acute and chronic marine criteria.
\b\ Conversion Factors for these pollutants in freshwater are hardness dependent. CFs are based on a hardness of
  100 mg/l as calcium carbonate (CaCO3). Other hardness can be used; CFs should be recalculated using the
  equations in table 3 to paragraph (b)(2) of this section.
\c\ Bioaccumulative compound and inappropriate to adjust to percent dissolved.
\d\ EPA has not published an aquatic life criterion value.

    Note to Table 2 of Paragraph (b)(2): The term ``Conversion Factor'' 
represents the recommended conversion factor for converting a metal 
criterion expressed as the total recoverable fraction in the water 
column to a criterion expressed as the dissolved fraction in the water 
column. See ``Office of Water Policy and Technical Guidance on 
Interpretation and Implementation of Aquatic Life Metals Criteria'', 
October 1, 1993, by Martha G. Prothro, Acting Assistant Administrator 
for Water available from Water Resource Center, USEPA, Mailcode RC4100, 
M Street SW, Washington, DC 20460 and the note to Sec. 131.36(b)(1).
    (v) Table 3 to paragraph (b)(2) of this section:

------------------------------------------------------------------------
                                      Acute                Chronic
------------------------------------------------------------------------
Cadmium.....................  CF=1.136672--[(ln     CF = 1.101672--[(ln
                               {hardness{time} )     {hardness{time} )(0
                               (0.041838)].          .041838)]
Lead........................  CF=1.46203--[(ln      CF = 1.46203--[(ln
                               {hardness{time} )(0   {hardness{time} )(0
                               .145712)].            .145712)]
------------------------------------------------------------------------

    (c) Applicability. (1) The criteria in paragraph (b) of this section 
apply to the State's designated uses cited in paragraph (d) of this 
section and apply concurrently with any criteria adopted by the State, 
except when State regulations contain criteria which are more stringent 
for a particular parameter and use, or except as provided in footnotes 
p, q, and x to the table in paragraph (b)(1) of this section.
    (2) The criteria established in this section are subject to the 
State's general rules of applicability in the same way and to the same 
extent as are other Federally-adopted and State-adopted numeric toxics 
criteria when applied to the same use classifications including mixing 
zones, and low flow values below which numeric standards can be exceeded 
in flowing fresh waters.
    (i) For all waters with mixing zone regulations or implementation 
procedures, the criteria apply at the appropriate locations within or at 
the boundary of the mixing zones; otherwise the criteria apply 
throughout the water body including at the point of discharge into the 
water body.
    (ii) The State shall not use a low flow value below which numeric 
standards can be exceeded that is less stringent than the flows in Table 
4 to paragraph (c)(2) of this section for streams and rivers.
    (iii) Table 4 to paragraph (c)(2) of this section:

------------------------------------------------------------------------
                 Criteria                            Design flow
------------------------------------------------------------------------
Aquatic Life Acute Criteria (CMC).........  1 Q 10 or 1 B 3
Aquatic Life Chronic Criteria (CCC).......  7 Q 10 or 4 B 3
Human Health Criteria.....................  Harmonic Mean Flow
------------------------------------------------------------------------

    Note to table 4 of paragraph (c)(2): 1. CMC (Criteria Maximum 
Concentration) is the water quality criteria to protect against acute 
effects in aquatic life and is the highest instream concentration of a 
priority toxic pollutant consisting of a short-term average not to be 
exceeded more than once every three years on the average.
    2. CCC (Continuous Criteria Concentration) is the water quality 
criteria to protect against chronic effects in aquatic life and is the 
highest in stream concentration of a priority toxic pollutant consisting 
of a 4-day average not to be exceeded more than once every three years 
on the average.
    3. 1 Q 10 is the lowest one day flow with an average recurrence 
frequency of once in 10 years determined hydrologically.

[[Page 505]]

    4. 1 B 3 is biologically based and indicates an allowable exceedence 
of once every 3 years. It is determined by EPA's computerized method 
(DFLOW model).
    5. 7 Q 10 is the lowest average 7 consecutive day low flow with an 
average recurrence frequency of once in 10 years determined 
hydrologically.
    6. 4 B 3 is biologically based and indicates an allowable exceedence 
for 4 consecutive days once every 3 years. It is determined by EPA's 
computerized method (DFLOW model).

    (iv) If the State does not have such a low flow value below which 
numeric standards do not apply, then the criteria included in paragraph 
(d) of this section apply at all flows.
    (v) If the CMC short-term averaging period, the CCC four-day 
averaging period, or once in three-year frequency is inappropriate for a 
criterion or the site to which a criterion applies, the State may apply 
to EPA for approval of an alternative averaging period, frequency, and 
related design flow. The State must submit to EPA the bases for any 
alternative averaging period, frequency, and related design flow. Before 
approving any change, EPA will publish for public comment, a document 
proposing the change.
    (3) The freshwater and saltwater aquatic life criteria in the matrix 
in paragraph (b)(1) of this section apply as follows:
    (i) For waters in which the salinity is equal to or less than 1 part 
per thousand 95% or more of the time, the applicable criteria are the 
freshwater criteria in Column B;
    (ii) For waters in which the salinity is equal to or greater than 10 
parts per thousand 95% or more of the time, the applicable criteria are 
the saltwater criteria in Column C except for selenium in the San 
Francisco Bay estuary where the applicable criteria are the freshwater 
criteria in Column B (refer to footnotes p and q to the table in 
paragraph (b)(1) of this section); and
    (iii) For waters in which the salinity is between 1 and 10 parts per 
thousand as defined in paragraphs (c)(3)(i) and (ii) of this section, 
the applicable criteria are the more stringent of the freshwater or 
saltwater criteria. However, the Regional Administrator may approve the 
use of the alternative freshwater or saltwater criteria if 
scientifically defensible information and data demonstrate that on a 
site-specific basis the biology of the water body is dominated by 
freshwater aquatic life and that freshwater criteria are more 
appropriate; or conversely, the biology of the water body is dominated 
by saltwater aquatic life and that saltwater criteria are more 
appropriate. Before approving any change, EPA will publish for public 
comment a document proposing the change.
    (4) Application of metals criteria. (i) For purposes of calculating 
freshwater aquatic life criteria for metals from the equations in 
paragraph (b)(2) of this section, for waters with a hardness of 400 mg/l 
or less as calcium carbonate, the actual ambient hardness of the surface 
water shall be used in those equations. For waters with a hardness of 
over 400 mg/l as calcium carbonate, a hardness of 400 mg/l as calcium 
carbonate shall be used with a default Water-Effect Ratio (WER) of 1, or 
the actual hardness of the ambient surface water shall be used with a 
WER. The same provisions apply for calculating the metals criteria for 
the comparisons provided for in paragraph (c)(3)(iii) of this section.
    (ii) The hardness values used shall be consistent with the design 
discharge conditions established in paragraph (c)(2) of this section for 
design flows and mixing zones.
    (iii) The criteria for metals (compounds 1--13 in 
the table in paragraph (b)(1) of this section) are expressed as 
dissolved except where otherwise noted. For purposes of calculating 
aquatic life criteria for metals from the equations in footnote i to the 
table in paragraph (b)(1) of this section and the equations in paragraph 
(b)(2) of this section, the water effect ratio is generally computed as 
a specific pollutant's acute or chronic toxicity value measured in water 
from the site covered by the standard, divided by the respective acute 
or chronic toxicity value in laboratory dilution water. To use a water 
effect ratio other than the default of 1, the WER must be determined as 
set forth in Interim Guidance on Determination and Use of Water Effect 
Ratios, U.S. EPA Office of Water,

[[Page 506]]

EPA-823-B-94-001, February 1994, or alternatively, other scientifically 
defensible methods adopted by the State as part of its water quality 
standards program and approved by EPA. For calculation of criteria using 
site-specific values for both the hardness and the water effect ratio, 
the hardness used in the equations in paragraph (b)(2) of this section 
must be determined as required in paragraph (c)(4)(ii) of this section. 
Water hardness must be calculated from the measured calcium and 
magnesium ions present, and the ratio of calcium to magnesium should be 
approximately the same in standard laboratory toxicity testing water as 
in the site water.
    (d)(1) Except as specified in paragraph (d)(3) of this section, all 
waters assigned any aquatic life or human health use classifications in 
the Water Quality Control Plans for the various Basins of the State 
(``Basin Plans'') adopted by the California State Water Resources 
Control Board (``SWRCB''), except for ocean waters covered by the Water 
Quality Control Plan for Ocean Waters of California (``Ocean Plan'') 
adopted by the SWRCB with resolution Number 90-27 on March 22, 1990, are 
subject to the criteria in paragraph (d)(2) of this section, without 
exception. These criteria apply to waters identified in the Basin Plans. 
More particularly, these criteria apply to waters identified in the 
Basin Plan chapters designating beneficial uses for waters within the 
region. Although the State has adopted several use designations for each 
of these waters, for purposes of this action, the specific standards to 
be applied in paragraph (d)(2) of this section are based on the presence 
in all waters of some aquatic life designation and the presence or 
absence of the MUN use designation (municipal and domestic supply). (See 
Basin Plans for more detailed use definitions.)
    (2) The criteria from the table in paragraph (b)(1) of this section 
apply to the water and use classifications defined in paragraph (d)(1) 
of this section as follows:

------------------------------------------------------------------------
      Water and use classification             Applicable criteria
------------------------------------------------------------------------
(i) All inland waters of the United      (A) Columns B1 and B2--all
 States or enclosed bays and estuaries    pollutants
 that are waters of the United States    (B) Columns C1 and C2--all
 that include a MUN use designation.      pollutants
                                         (C) Column D1--all pollutants
------------------------------------------------------------------------
(ii) All inland waters of the United     (A) Columns B1 and B2--all
 States or enclosed bays and estuaries    pollutants
 that are waters of the United States    (B) Columns C1 and C2--all
 that do not include a MUN use            pollutants
 designation.                            (C) Column D2--all pollutants
------------------------------------------------------------------------

    (3) Nothing in this section is intended to apply instead of specific 
criteria, including specific criteria for the San Francisco Bay estuary, 
promulgated for California in the National Toxics Rule at Sec. 131.36.
    (4) The human health criteria shall be applied at the State-adopted 
10 (-6) risk level.
    (5) Nothing in this section applies to waters located in Indian 
Country.
    (e) Schedules of compliance. (1) It is presumed that new and 
existing point source dischargers will promptly comply with any new or 
more restrictive water quality-based effluent limitations (``WQBELs'') 
based on the water quality criteria set forth in this section.
    (2) When a permit issued on or after May 18, 2000 to a new 
discharger contains a WQBEL based on water quality criteria set forth in 
paragraph (b) of this section, the permittee shall comply with such 
WQBEL upon the commencement of the discharge. A new discharger is 
defined as any building, structure, facility, or installation from

[[Page 507]]

which there is or may be a ``discharge of pollutants'' (as defined in 40 
CFR 122.2) to the State of California's inland surface waters or 
enclosed bays and estuaries, the construction of which commences after 
May 18, 2000.
    (3) Where an existing discharger reasonably believes that it will be 
infeasible to promptly comply with a new or more restrictive WQBEL based 
on the water quality criteria set forth in this section, the discharger 
may request approval from the permit issuing authority for a schedule of 
compliance.
    (4) A compliance schedule shall require compliance with WQBELs based 
on water quality criteria set forth in paragraph (b) of this section as 
soon as possible, taking into account the dischargers' technical ability 
to achieve compliance with such WQBEL.
    (5) If the schedule of compliance exceeds one year from the date of 
permit issuance, reissuance or modification, the schedule shall set 
forth interim requirements and dates for their achievement. The dates of 
completion between each requirement may not exceed one year. If the time 
necessary for completion of any requirement is more than one year and is 
not readily divisible into stages for completion, the permit shall 
require, at a minimum, specified dates for annual submission of progress 
reports on the status of interim requirements.
    (6) In no event shall the permit issuing authority approve a 
schedule of compliance for a point source discharge which exceeds five 
years from the date of permit issuance, reissuance, or modification, 
whichever is sooner. Where shorter schedules of compliance are 
prescribed or schedules of compliance are prohibited by law, those 
provisions shall govern.
    (7) If a schedule of compliance exceeds the term of a permit, 
interim permit limits effective during the permit shall be included in 
the permit and addressed in the permit's fact sheet or statement of 
basis. The administrative record for the permit shall reflect final 
permit limits and final compliance dates. Final compliance dates for 
final permit limits, which do not occur during the term of the permit, 
must occur within five years from the date of issuance, reissuance or 
modification of the permit which initiates the compliance schedule. 
Where shorter schedules of compliance are prescribed or schedules of 
compliance are prohibited by law, those provisions shall govern.
    (8) The provisions in this paragraph (e), Schedules of compliance, 
shall expire on May 18, 2005.

[65 FR 31711, May 18, 2000, as amended at 66 FR 9961, Feb. 13, 2001; 68 
FR 62747, Nov. 6, 2003]

    Editorial Note: At 66 FR 9961, Feb. 13, 2001, Sec. 131.38 was 
amended in the table to paragraph (b)(1) under the column heading for 
``B Freshwater'' by revising the column headings for ``Criterion Maximum 
Concentration'' and ``Criterion Continuous Concentration''; under the 
column heading for ``C Saltwater'' by revising the column headings for 
``Criterion Maximum Concentration'' and ``Criterion Continuous 
Concentration''; and by revising entries ``23.'' and ``67.'', effective 
Feb. 13, 2001. However, this is a photographed table and the amendments 
could not be incorporated into the text. For the convenience of the 
user, the amended text is set forth as follows:



Sec. 131.38  Establishment of Numeric Criteria for priority toxic 
          pollutants for the State of California.

                                * * * * *

    (b)(1) * * *

[[Page 508]]



--------------------------------------------------------------------------------------------------------------------------------------------------------
                                     A                                            B  Freshwater             C  Saltwater         D  Human health (10-6)
-------------------------------------------------------------------------------------------------------------------------------   risk for carcinogens)
                                                                                                                                   For consumption of:
                                                                             Criterion    Criterion    Criterion    Criterion  -------------------------
                                                               CAS  number    maximum     continous     maximum     continious    Water &     Organisms
                       Compound                                       conc.        conc.        conc.        conc.      organisms       only
                                                                             ([micro]g/   ([micro]g/   ([micro]g/   ([micro]g/   ([micro]g/   ([micro]g/
                                                                             L) \d\  B1   L) \d\  B2   L) \d\  C1   L) \d\  C2     L)  D1       L)  D2
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
23. Chlorodibromomethane.....................................       124481  ...........  ...........  ...........  ...........   \a,c\ 0.41    \a,c\ 34
                                                                     * * * * * * *
67. Bis(2-Chloroisopropyl)Ether..............................       108601  ...........  ...........  ...........  ...........    \a\ 1,400        \a,t\
                                                                                                                                                170,000
                                                                     * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Footnotes to table in Paragraph (b)(1):
* * * * * * *
\a\ Criteria revised to reflect the Agency q1* or RfD, as contained in the Integrated Risk Information System (IRIS) as of October 1, 1996. The fish
  tissue bioconcentration factor (BCF) from the 1980 documents was retained in each case.
\c\ Criteria are based on carcinogenicity of 10-6 risk.
\d\ Criteria Maximum Concentration (CMC) equals the highest concentration of a pollutant to which aquatic life can be exposed for a short period of time
  without deleterious effects. Criteria Continuous Concentration (CCC) equals the highest concentration of a pollutant to which aquatic life can be
  exposed for an extended period of time (4 days) without deleterious effects. [micro]g/L equals micrograms per liter.
* * * * * * *
\t\ These criteria were promulgated for specific waters in California in the NTR. The specific waters to which the NTR criteria apply include: Waters of
  the State defined as bays and estuaries including San Francisco Bay upstream to and including Suisun Bay and the Sacramento-San Joaquin Delta; and
  waters of the State defined as inland (i.e., all surface waters of the State not bays or estuaries or ocean) without a MUN use designation. This
  section does not apply instead of the NTR for these criteria.


[[Page 509]]

                                * * * * *



Sec. 131.40  Puerto Rico

    (a) Use designations for marine waters. In addition to the 
Commonwealth's adopted use designations, the following waterbodies in 
Puerto Rico have the beneficial use designated in this paragraph (a) 
within the bays specified below, and within the Commonwealth's 
territorial seas, as defined in section 502(8) of the Clean Water Act, 
and 33 CFR 2.05-5, except such waters classified by the Commonwealth as 
SB.

----------------------------------------------------------------------------------------------------------------
          Waterbody segment                      From                      To                 Designated use
----------------------------------------------------------------------------------------------------------------
Coastal Waters.......................  500m offshore..........  3 miles offshore.......  Primary Contact
                                                                                          Recreation.
Guayanilla & Tallaboa Bays...........  Cayo Parguera..........  Punta Verraco..........  Primary Contact
                                                                                          Recreation.
Mayaguez Bay.........................  Punta Guanajibo........  Punta Algarrobo........  Primary Contact
                                                                                          Recreation.
Ponce Port...........................  Punta Carenero.........  Punta Cuchara..........  Primary Contact
                                                                                          Recreation.
San Juan Port........................  mouth of R[iacute]o      Punta El Morro.........  Primary Contact
                                        Bayam[oacute]n.                                   Recreation.
Yabucoa Port.........................  Punta Icacos...........  Punta Yeguas...........  Primary Contact
                                                                                          Recreation.
----------------------------------------------------------------------------------------------------------------

    (b) Criteria that apply to Puerto Rico's marine waters. In addition 
to all other Commonwealth criteria, the following criteria for bacteria 
apply to the waterbodies in paragraph (a) of this section:
    Bacteria: The fecal coliform geometric mean of a series of 
representative samples (at least five samples) of the waters taken 
sequentially shall not exceed 200 colonies/100 ml, and not more than 20 
percent of the samples shall exceed 400 colonies/100 ml. The enterococci 
density in terms of geometric mean of at least five representative 
samples taken sequentially shall not exceed 35/100 ml. No single sample 
should exceed the upper confidence limit of 75% using 0.7 as the log 
standard deviation until sufficient site data exist to establish a site-
specific log standard deviation.
    (c) Water quality standard variances. (1) The Regional 
Administrator, EPA Region 2, is authorized to grant variances from the 
water quality standards in paragraphs (a) and (b) of this section where 
the requirements of this paragraph (c) are met. A water quality standard 
variance applies only to the permittee requesting the variance and only 
to the pollutant or pollutants specified in the variance; the underlying 
water quality standard otherwise remains in effect.
    (2) A water quality standard variance shall not be granted if:
    (i) Standards will be attained by implementing effluent limitations 
required under sections 301(b) and 306 of the CWA and by the permittee 
implementing reasonable best management practices for nonpoint source 
control; or
    (ii) The variance would likely jeopardize the continued existence of 
any threatened or endangered species listed under section 4 of the 
Endangered Species Act or result in the destruction or adverse 
modification of such species' critical habitat.
    (3) A water quality standards variance may be granted if the 
applicant demonstrates to EPA that attaining the water quality standard 
is not feasible because:
    (i) Naturally occurring pollutant concentrations prevent the 
attainment of the use;
    (ii) Natural, ephemeral, intermittent or low flow conditions or 
water levels prevent the attainment of the use, unless these conditions 
may be compensated for by the discharge of sufficient volume of effluent 
discharges without violating Commonwealth water conservation 
requirements to enable uses to be met;
    (iii) Human caused conditions or sources of pollution prevent the 
attainment of the use and cannot be remedied or would cause more 
environmental damage to correct than to leave in place;
    (iv) Dams, diversions or other types of hydrologic modifications 
preclude the attainment of the use, and it is not feasible to restore 
the waterbody to its original condition or to operate such modification 
in a way which would result in the attainment of the use;
    (v) Physical conditions related to the natural features of the 
waterbody, such as the lack of a proper substrate, cover, flow, depth, 
pools, riffles, and the like

[[Page 510]]

unrelated to water quality, preclude attainment of aquatic life 
protection uses; or
    (vi) Controls more stringent than those required by sections 301(b) 
and 306 of the CWA would result in substantial and widespread economic 
and social impact.
    (4) Procedures. An applicant for a water quality standards variance 
shall submit a request to the Regional Administrator of EPA Region 2. 
The application shall include all relevant information showing that the 
requirements for a variance have been met. The applicant must 
demonstrate that the designated use is unattainable for one of the 
reasons specified in paragraph (c)(3) of this section. If the Regional 
Administrator preliminarily determines that grounds exist for granting a 
variance, he/she shall provide public notice of the proposed variance 
and provide an opportunity for public comment. Any activities required 
as a condition of the Regional Administrator's granting of a variance 
shall be included as conditions of the NPDES permit for the applicant. 
These terms and conditions shall be incorporated into the applicant's 
NPDES permit through the permit reissuance process or through a 
modification of the permit pursuant to the applicable permit 
modification provisions of Puerto Rico's NPDES program.
    (5) A variance may not exceed five years or the term of the NPDES 
permit, whichever is less. A variance may be renewed if the applicant 
reapplies and demonstrates that the use in question is still not 
attainable. Renewal of the variance may be denied if the applicant did 
not comply with the conditions of the original variance, or otherwise 
does not meet the requirements of this section.

[69 FR 3524, Jan. 26, 2004]



Sec. 131.41  Bacteriological criteria for those states not complying with 

Clean Water Act section 303(i)(1)(A).

    (a) Scope. This section is a promulgation of the Clean Water Act 
section 304(a) criteria for bacteria for coastal recreation waters in 
specific States. It is not a general promulgation of the Clean Water Act 
section 304(a) criteria for bacteria. This section also contains a 
compliance schedule provision.
    (b) Definitions. (1) Coastal Recreation Waters are the Great Lakes 
and marine coastal waters (including coastal estuaries) that are 
designated under section 303(c) of the Clean Water Act for use for 
swimming, bathing, surfing, or similar water contact activities. Coastal 
recreation waters do not include inland waters or waters upstream from 
the mouth of a river or stream having an unimpaired natural connection 
with the open sea.
    (2) Designated bathing beach waters are those coastal recreation 
waters that, during the recreation season, are heavily-used (based upon 
an evaluation of use within the State) and may have: a lifeguard, 
bathhouse facilities, or public parking for beach access. States may 
include any other waters in this category even if the waters do not meet 
these criteria.
    (3) Moderate use coastal recreation waters are those coastal 
recreation waters that are not designated bathing beach waters but 
typically, during the recreation season, are used by at least half of 
the number of people as at typical designated bathing beach waters 
within the State. States may also include light use or infrequent use 
coastal recreation waters in this category.
    (4) Light use coastal recreation waters are those coastal recreation 
waters that are not designated bathing beach waters but typically, 
during the recreation season, are used by less than half of the number 
of people as at typical designated bathing beach waters within the 
State, but are more than infrequently used. States may also include 
infrequent use coastal recreation waters in this category.
    (5) Infrequent use coastal recreation waters are those coastal 
recreation waters that are rarely or occasionally used.
    (6) New pathogen discharger for the purposes of this section means 
any building, structure, facility, or installation from which there is 
or may be a discharge of pathogens, the construction of which commenced 
on or after December 16, 2004. It does not include relocation of 
existing combined sewer overflow outfalls.

[[Page 511]]

    (7) Existing pathogen discharger for the purposes of this section 
means any discharger that is not a new pathogen discharger.
    (c) EPA's section 304(a) ambient water quality criteria for 
bacteria. (1) Freshwaters:

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                C  Single sample maximum  (per 100 ml)
                                                                             ---------------------------------------------------------------------------
                                                                                                                      C3  Light use      C4  Infrequent
              A  Indicator \d\                       B  Geometric mean          C1  Designated    C2  Moderate use       coastal          use coastal
                                                                                bathing beach    costal recreation  recreation waters  recreation waters
                                                                               (75% confidence      waters  (82%      (90% confidence    (95% confidence
                                                                                    level)       confidence level)        level)             level)
--------------------------------------------------------------------------------------------------------------------------------------------------------
E. coli \e\.................................  126/100 mil \a\...............            \b\ 235            \b\ 298            \b\ 409            \b\ 575
Enterococci \e\.............................  33/100 ml \c\.................             \b\ 61             \b\ 78            \b\ 107           \b\ 151
--------------------------------------------------------------------------------------------------------------------------------------------------------
Footnotes to table in paragraph (c)(1):
a. This value is for use with analytical methods 1103.1, 1603, or 1604 or any equivalent method that measures viable bacteria.
b. Calculated using the following: single sample maximum = geometric mean * 10[and](confidence level factor * log standard deviation), where the
  confidence level factor is: 75%: 0.68; 82%: 0.94; 90%: 1.28; 95%: 1.65. The log standard deviation from EPA's epidemiological studies is 0.4.
c. This value is for use with analytical methods 1106.1 or 1600 or any equivalent method that measures viable bacteria.
d. The State may determine which of these indicators applies to its freshwater coastal recreation waters. Until a State makes that determination, E.
  coli will be the applicable indicator.
e. These values apply to E. coli or enterococci regardless of origin unless a sanitary survey shows that sources of the indicator bacteria are non-human
  and an epidemiological study shows that the indicator densities are not indicative of a human health risk.

    (2) Marine waters:

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                              C  Single sample maximum  (per 100 ml)
                                                                         -------------------------------------------------------------------------------
                                                                            C1  Designated     C2  Moderate use      C3  Light use    C4  Infrequent use
               A  Indicator                       B  Geometric mean          bathing beach    coastal recreation  coastal recreation  coastal recreation
                                                                            (75% confidence      waters  (82%        waters  (90%        waters  (95%
                                                                                level)         confidence level)   confidence level)   confidence level)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Enterococci \c\...........................  35/100 ml \a\...............            \b\ 104             \b\ 158             \b\ 276            \b\ 501
--------------------------------------------------------------------------------------------------------------------------------------------------------
Footnotes to table in paragraph (c)(2):
a. This value is for use with analytical methods 1106.1 or 1600 or any equivalent method that measures viable bacteria.
b. Calculated using the following: single sample maximum = geometric mean * 10[and](confidence level factor * log standard deviation), where the
  confidence level factor is: 75%: 0.68; 82%: 0.94; 90%: 1.28; 95%: 1.65. The log standard deviation from EPA's epidemiological studies is 0.7.
c. These values apply to enterococci regardless of origin unless a sanitary survey shows that sources of the indicator bacteria are non-human and an
  epidemiological study shows that the indicator densities are not indicative of a human health risk.

    (3) As an alternative to the single sample maximum in paragraph 
(c)(1) or (c)(2) of this section, States may use a site-specific log 
standard deviation to calculate a single sample maximum for individual 
coastal recreation waters, but must use at least 30 samples from a 
single recreation season to do so.
    (d) Applicability. (1) The criteria in paragraph (c) of this section 
apply to the coastal recreation waters of the States identified in 
paragraph (e) of this section and apply concurrently with any ambient 
recreational water criteria adopted by the State, except for those 
coastal recreation waters where State regulations determined by EPA to 
meet the requirements of Clean Water Act section 303(i) apply, in which 
case the State's criteria for those coastal recreation waters will apply 
and not the criteria in paragraph (c) of this section.
    (2) The criteria established in this section are subject to the 
State's general rules of applicability in the same way and to the same 
extent as are other Federally-adopted and State-adopted numeric criteria 
when applied to the same use classifications.
    (e) Applicability to specific jurisdictions. (1) The criteria in 
paragraph (c)(1) of this section apply to fresh coastal recreation 
waters of the following States: Illinois, Minnesota, New York, Ohio, 
Pennsylvania, Wisconsin.

[[Page 512]]

    (2) The criteria in paragraph (c)(2) of this section apply to marine 
coastal recreation waters of the following States: Alaska, California 
(except for coastal recreation waters within the jurisdiction of 
Regional Board 4), Florida, Georgia, Hawaii (except for coastal 
recreation waters within 300 meters of the shoreline), Louisiana, Maine 
(except for SA waters and SB and SC waters with human sources of fecal 
contamination), Maryland, Massachusetts, Mississippi, New York, North 
Carolina, Oregon, Puerto Rico (except for waters classified by Puerto 
Rico as intensely used for primary contact recreation and for those 
waters included in Sec. 131.40), Rhode Island, United States Virgin 
Islands.
    (f) Schedules of compliance. (1) This paragraph (f) applies to any 
State that does not have a regulation in effect for Clean Water Act 
purposes that authorizes compliance schedules for National Pollutant 
Discharge Elimination System permit limitations needed to meet the 
criteria in paragraph (c) of this section. All dischargers shall 
promptly comply with any new or more restrictive water quality-based 
effluent limitations based on the water quality criteria set forth in 
this section.
    (2) When a permit issued on or after December 16, 2004, to a new 
pathogen discharger as defined in paragraph (b) of this section contains 
water quality-based effluent limitations based on water quality criteria 
set forth in paragraph (c) of this section, the permittee shall comply 
with such water quality-based effluent limitations upon the commencement 
of the discharge.
    (3) Where an existing pathogen discharger reasonably believes that 
it will be infeasible to comply immediately with a new or more 
restrictive water quality-based effluent limitations based on the water 
quality criteria set forth in paragraph (c) of this section, the 
discharger may request approval from the permit issuing authority for a 
schedule of compliance.
    (4) A compliance schedule for an existing pathogen discharger shall 
require compliance with water quality-based effluent limitations based 
on water quality criteria set forth in paragraph (c) of this section as 
soon as possible, taking into account the discharger's ability to 
achieve compliance with such water quality-based effluent limitations.
    (5) If the schedule of compliance for an existing pathogen 
discharger exceeds one year from the date of permit issuance, reissuance 
or modification, the schedule shall set forth interim requirements and 
dates for their achievement. The period between dates of completion for 
each requirement may not exceed one year.
    If the time necessary for completion of any requirement is more than 
one year and the requirement is not readily divisible into stages for 
completion, the permit shall require, at a minimum, specified dates for 
annual submission of progress reports on the status of interim 
requirements.
    (6) In no event shall the permit issuing authority approve a 
schedule of compliance for an existing pathogen discharge which exceeds 
five years from the date of permit issuance, reissuance, or 
modification, whichever is sooner.
    (7) If a schedule of compliance exceeds the term of a permit, 
interim permit limits effective during the permit shall be included in 
the permit and addressed in the permit's fact sheet or statement of 
basis. The administrative record for the permit shall reflect final 
permit limits and final compliance dates. Final compliance dates for 
final permit limits, which do not occur during the term of the permit, 
must occur within five years from the date of issuance, reissuance or 
modification of the permit which initiates the compliance schedule.

[69 FR 67242, Nov. 16, 2004]



Sec. 131.42  Antidegradation Implementation Methods for the Commonwealth of 

Puerto Rico.

    (a) General Policy Statement. (1) All point sources of pollution are 
subject to an antidegradation review.
    (2) An antidegradation review shall be initiated as part of the 
Section 401--``Water Quality Certification Process'' of the Clean Water 
Act.
    (3) The 401 Certification Process shall follow the procedures 
established by the February 2, 1989 Resolution R-89-2-2 of the Governing 
Board of the Puerto

[[Page 513]]

Rico Environmental Quality Board (EQB).
    (4) The following are not subject to an antidegradation review due 
to the fact that they are nondischarge systems and are managed by 
specific applicable Puerto Rico regulations:
    (i) All nonpoint sources of pollutants.
    (ii) Underground Storage Tanks.
    (iii) Underground Injection Facilities.
    (5) The protection of water quality shall include the maintenance, 
migration, protection, and propagation of desirable species, including 
threatened and endangered species identified in the local and federal 
regulations.
    (b) Definitions. (1) All the definitions included in Article 1 of 
the Puerto Rico Water Quality Standards Regulation (PRWQSR), as amended, 
are applicable to this procedure.
    (2) High Quality Waters:
    (i) Are waters whose quality is better than the mandatory minimum 
level to support the CWA Section 101(a)(2) goals of propagation of fish, 
shellfish, wildlife and recreation in and on the waters. High Quality 
Waters are to be identified by EQB on a parameter-by-parameter basis.
    (ii) [Reserved]
    (3) Outstanding National Resources Waters (ONRWs):
    (i) Are waters classified as SA or SE in the PRWQSR, as amended, or 
any other water designated by Resolution of the Governing Board of EQB. 
ONRWs are waters that are recreationally or ecologically important, 
unique or sensitive.
    (ii) [Reserved]
    (c) Antidegradation Review Procedure. (1) The antidegradation review 
will commence with the submission of the CWA Section 401 water quality 
certification request. EQB uses a parameter-by-parameter approach for 
the implementation of the anti-degradation policy and will review each 
parameter separately as it evaluates the request for certification. The 
401 certification/antidegradation review shall comply with Article 
4(B)(3) of the Puerto Rico Environmental Public Policy Act (Law No. 416 
of September 22, 2004, as amended (12 LPRA 8001 et seq.)). Compliance 
with Article 4(B)(3) shall be conducted in accordance with the 
Reglamento de la Junta de Calidad Ambiental para el Proceso de 
Presentaci[oacute]n, Evaluaci[oacute]n y Tr[aacute]mite de Documentos 
Ambientales (EQB's Environmental Documents Regulation). As part of the 
evaluation of the Environmental Document an alternatives analysis shall 
be conducted (12 LPRA 8001(a)(5), EQB's Environmental Documents 
Regulation, e.g., Rules 211E and 253C), and a public participation 
period and a public hearing shall be provided (12 LPRA 8001(a), EQB's 
Environmental Documents Regulation, Rule 254).
    (2) In conducting an antidegradation review, EQB will sequentially 
apply the following steps:
    (i) Determine which level of antidegradation applies
    (A) Tier 1--Protection of Existing and Designated Uses.
    (B) Tier 2--Protection of High Quality Waters.
    (C) Tier 3--Protection of ONRWs.
    (ii) [Reserved]
    (3) Review existing water quality data and other information 
submitted by the applicant. The applicant shall provide EQB with the 
information regarding the discharge, as required by the PRWQSR 
including, but not limited to the following:
    (i) A description of the nature of the pollutants to be discharged.
    (ii) Treatment technologies applied to the pollutants to be 
discharged.
    (iii) Nature of the applicant's business.
    (iv) Daily maximum and average flow to be discharged.
    (v) Effluent characterization.
    (vi) Effluent limitations requested to be applied to the discharge 
according to Section 6.11 of the PRWQSR.
    (vii) Location of the point of discharge.
    (viii) Receiving waterbody name.
    (ix) Water quality data of the receiving waterbody.
    (x) Receiving waterbody minimum flow (7Q2 and 7Q10) for stream 
waters.
    (xi) Location of water intakes within the waterbody.
    (xii) In the event that the proposed discharge will result in the 
lowering of water quality, data and information demonstrating that the 
discharge is necessary to accommodate important economic or social 
development in the

[[Page 514]]

area where the receiving waters are located.
    (4) Determine if additional information or assessment is necessary 
to make the decision.
    (5) Prepare an intent to issue or deny the 401 water quality 
certificate and publish a notice in a newspaper of wide circulation in 
Puerto Rico informing the public of EQB's preliminary decision and 
granting a public participation period of at least thirty (30) days.
    (6) Address the comments received from the interested parties and 
consider such comments as part of the decision making process.
    (7) Make the final determination to issue or deny the requested 401 
certification. Such decision is subject to the reconsideration procedure 
established in Law 170 of August 12, 1988, Ley de Procedimiento 
Administrativo Uniforme del Estado Libre Asociado de Puerto Rico (3 LPRA 
2165).
    (d) Implementation Procedures. (1) Activities Regulated by NPDES 
Permits
    (i) Tier 1--Protection of Existing and Designated Uses:
    (A) Tier 1 waters are:
    (1) Those waters of Puerto Rico (except Tier 2 or Tier 3 waters) 
identified as impaired and that have been included on the list required 
by Section 303(d) of the CWA; and
    (2) Those waters of Puerto Rico (except Tier 2 and Tier 3 waters) 
for which attainment of applicable water quality standards has been or 
is expected to be, achieved through implementation of effluent 
limitations more stringent than technology-based controls (Best 
Practicable Technology, Best Available Technology and Secondary 
Treatment).
    (B) To implement Tier 1 antidegradation, EQB shall determine if a 
discharge would lower the water quality to the extent that it would no 
longer be sufficient to protect and maintain the existing and designated 
uses of that waterbody.
    (C) When a waterbody has been affected by a parameter of concern 
causing it to be included on the 303(d) List, then EQB will not allow an 
increase of the concentration of the parameter of concern or pollutants 
affecting the parameter of concern in the waterbody. This no increase 
will be achieved by meeting the applicable water quality standards at 
the end of the pipe. Until such time that a Total Maximum Daily Load 
(TMDL) is developed for the parameter of concern for the waterbody, no 
discharge will be allowed to cause or contribute to further degradation 
of the waterbody.
    (D) When the assimilative capacity of a waterbody is not sufficient 
to ensure maintenance of the water quality standard for a parameter of 
concern with an additional load to the waterbody, EQB will not allow an 
increase of the concentration of the parameter of concern or pollutants 
affecting the parameter of concern in the waterbody. This no increase 
will be achieved by meeting the applicable water quality standards at 
the end of the pipe. Until such time that a TMDL is developed for the 
parameter of concern for the waterbody, no discharge will be allowed to 
cause or contribute to further degradation of the waterbody.
    (ii) Tier 2--Protection of High Quality Waters:
    (A) To verify that a waterbody is a high quality water for a 
parameter of concern which initiates a Tier 2 antidegradation review, 
EQB shall evaluate and determine:
    (1) The existing water quality of the waterbody;
    (2) The projected water quality of the waterbody pursuant to the 
procedures established in the applicable provisions of Articles 5 and 10 
of the PRWQSR including but not limited to, Sections 5.2, 5.3, 5.4, 
10.2, 10.3, 10.4, 10.5, and 10.6;
    (3) That the existing and designated uses of the waterbody will be 
fully maintained and protected in the event of a lowering of water 
quality.
    In multiple discharge situations, the effects of all discharges 
shall be evaluated through a waste load allocation analysis in 
accordance with the applicable provisions of Article 10 of the PRWQSR or 
the applicable provisions of Article 5 regarding mixing zones.
    (B) In order to allow the lowering of water quality in high quality 
waters, the applicant must show and justify the necessity for such 
lowering of water quality through compliance with the requirements of 
Section 6.11 of the PRWQSR. EQB will not allow the entire assimilative 
capacity of a

[[Page 515]]

waterbody for a parameter of concern to be allocated to a discharger, if 
the necessity of the requested effluent limitation for the parameter of 
concern is not demonstrated to the full satisfaction of EQB.
    (iii) Tier 3--Protection of ONRWs:
    (A) EQB may designate a water as Class SA or SE (ONRWs) through a 
Resolution (PRWQSR Sections 2.1.1 and 2.2.1). Additionally, any 
interested party may nominate a specific water to be classified as an 
ONRW and the Governing Board of EQB will make the final determination. 
Classifying a water as an ONRW may result in the water being named in 
either Section 2.1.1 or 2.2.2 of the PRWQSR, which would require an 
amendment of the PRWQSR. The process for amending the PRWQSR, including 
public participation, is set forth in Section 8.6 of said regulation.
    (B) The existing characteristics of Class SA and SE waters shall not 
be altered, except by natural causes, in order to preserve the existing 
natural phenomena.
    (1) No point source discharge will be allowed in ONRWs.
    (2) [Reserved]
    (2) Activities Regulated by CWA Section 404 or Rivers and Harbors 
Action Section 10 Permits (Discharge of Dredged or Fill Material)
    (i) EQB will only allow the discharge of dredged or fill material 
into a wetland if it can be demonstrated that such discharge will not 
have an unacceptable adverse impact either individually or in 
combination with other activities affecting the wetland of concern. The 
impacts to the water quality or the aquatic or other life in the wetland 
due to the discharge of dredged or fill material should be avoided, 
minimized and mitigated.
    (ii) The discharge of dredged or fill material shall not be 
certified if there is a practicable alternative to the proposed 
discharge which would have less adverse impact on the recipient 
ecosystem, so long as the alternative does not have other more 
significant adverse environmental consequences. Activities which are not 
water dependent are presumed to have practicable alternatives, unless 
the applicant clearly demonstrates otherwise. No discharge of dredged 
and fill material shall be certified unless appropriate and practicable 
steps have been taken which minimize potential adverse impacts of the 
discharge on the recipient ecosystem. The discharge of dredged or fill 
material to ONRWs, however, shall be governed by paragraph (d)(1)(iii) 
of this section.

[72 FR 70524, Dec. 12, 2007]



PART 132_WATER QUALITY GUIDANCE FOR THE GREAT LAKES SYSTEM--Table of Contents




Sec.
132.1 Scope, purpose, and availability of documents.
132.2 Definitions.
132.3 Adoption of criteria.
132.4 State adoption and application of methodologies, policies and 
          procedures.
132.5 Procedures for adoption and EPA review.
132.6 Application of part 132 requirements in Great Lakes States and 
          Tribes.

Tables to Part 132
Appendix A to Part 132--Great Lakes Water Quality Initiative 
          Methodologies for Development of Aquatic Life Criteria and 
          Values
Appendix B to Part 132--Great Lakes Water Quality Initiative
Appendix C to Part 132--Great Lakes Water Quality Initiative 
          Methodologies for Development of Human Health Criteria and 
          Values
Appendix D to Part 132--Great Lakes Water Quality Initiative Methodology 
          for the Development of Wildlife Criteria
Appendix E to Part 132--Great Lakes Water Quality Initiative 
          Antidegradation Policy
Appendix F to Part 132--Great Lakes Water Quality Initiative 
          Implementation Procedures

    Authority: 33 U.S.C. 1251 et seq.

    Source: 60 FR 15387, Mar. 23, 1995, unless otherwise noted.



Sec. 132.1  Scope, purpose, and availability of documents.

    (a) This part constitutes the Water Quality Guidance for the Great 
Lakes System (Guidance) required by section 118(c)(2) of the Clean Water 
Act (33 U.S.C. 1251 et seq.) as amended by the Great Lakes Critical 
Programs Act of 1990 (Pub. L. 101-596, 104 Stat. 3000 et

[[Page 516]]

seq.). The Guidance in this part identifies minimum water quality 
standards, antidegradation policies, and implementation procedures for 
the Great Lakes System to protect human health, aquatic life, and 
wildlife.
    (b) The U.S. Environmental Protection Agency, Great Lakes States, 
and Great Lakes Tribes will use the Guidance in this part to evaluate 
the water quality programs of the States and Tribes to assure that they 
are protective of water quality. State and Tribal programs do not need 
to be identical to the Guidance in this part, but must contain 
provisions that are consistent with (as protective as) the Guidance in 
this part. The scientific, policy and legal basis for EPA's development 
of each section of the final Guidance in this part is set forth in the 
preamble, Supplementary Information Document, Technical Support 
Documents, and other supporting documents in the public docket. EPA will 
follow the guidance set out in these documents in reviewing the State 
and Tribal water quality programs in the Great Lakes for consistency 
with this part.
    (c) The Great Lakes States and Tribes must adopt provisions 
consistent with the Guidance in this part applicable to waters in the 
Great Lakes System or be subject to EPA promulgation of its terms 
pursuant to this part.
    (d) EPA understands that the science of risk assessment is rapidly 
improving. Therefore, to ensure that the scientific basis for the 
methodologies in appendices A through D are always current and peer 
reviewed, EPA will review the methodologies and revise them, as 
appropriate, every 3 years.
    (e) Certain documents referenced in the appendixes to this part with 
a designation of NTIS and/or ERIC are available for a fee upon request 
to the National Technical Information Center (NTIS), U.S. Department of 
Commerce, 5285 Port Royal Road, Springfield, VA 22161. Alternatively, 
copies may be obtained for a fee upon request to the Educational 
Resources Information Center/Clearinghouse for Science, Mathematics, and 
Environmental Education (ERIC/CSMEE), 1200 Chambers Road, Room 310, 
Columbus, Ohio 43212. When ordering, please include the NTIS or ERIC/
CSMEE accession number.



Sec. 132.2  Definitions.

    The following definitions apply in this part. Terms not defined in 
this section have the meaning given by the Clean Water Act and EPA 
implementing regulations.
    Acute-chronic ratio (ACR) is a standard measure of the acute 
toxicity of a material divided by an appropriate measure of the chronic 
toxicity of the same material under comparable conditions.
    Acute toxicity is concurrent and delayed adverse effect(s) that 
results from an acute exposure and occurs within any short observation 
period which begins when the exposure begins, may extend beyond the 
exposure period, and usually does not constitute a substantial portion 
of the life span of the organism.
    Adverse effect is any deleterious effect to organisms due to 
exposure to a substance. This includes effects which are or may become 
debilitating, harmful or toxic to the normal functions of the organism, 
but does not include non-harmful effects such as tissue discoloration 
alone or the induction of enzymes involved in the metabolism of the 
substance.
    Bioaccumulation is the net accumulation of a substance by an 
organism as a result of uptake from all environmental sources.
    Bioaccumulation factor (BAF) is the ratio (in L/kg) of a substance's 
concentration in tissue of an aquatic organism to its concentration in 
the ambient water, in situations where both the organism and its food 
are exposed and the ratio does not change substantially over time.
    Bioaccumulative chemical of concern (BCC) is any chemical that has 
the potential to cause adverse effects which, upon entering the surface 
waters, by itself or as its toxic transformation product, accumulates in 
aquatic organisms by a human health bioaccumulation factor greater than 
1000, after considering metabolism and other physicochemical properties 
that might enhance or inhibit bioaccumulation, in accordance with the 
methodology in appendix B of this part. Chemicals with half-lives of 
less than eight weeks in the water column, sediment, and biota

[[Page 517]]

are not BCCs. The minimum BAF information needed to define an organic 
chemical as a BCC is either a field-measured BAF or a BAF derived using 
the BSAF methodology. The minimum BAF information needed to define an 
inorganic chemical, including an organometal, as a BCC is either a 
field-measured BAF or a laboratory-measured BCF. BCCs include, but are 
not limited to, the pollutants identified as BCCs in section A of Table 
6 of this part.
    Bioconcentration is the net accumulation of a substance by an 
aquatic organism as a result of uptake directly from the ambient water 
through gill membranes or other external body surfaces.
    Bioconcentration factor (BCF) is the ratio (in L/kg) of a 
substance's concentration in tissue of an aquatic organism to its 
concentration in the ambient water, in situations where the organism is 
exposed through the water only and the ratio does not change 
substantially over time.
    Biota-sediment accumulation factor (BSAF) is the ratio (in kg of 
organic carbon/kg of lipid) of a substance's lipid-normalized 
concentration in tissue of an aquatic organism to its organic carbon-
normalized concentration in surface sediment, in situations where the 
ratio does not change substantially over time, both the organism and its 
food are exposed, and the surface sediment is representative of average 
surface sediment in the vicinity of the organism.
    Carcinogen is a substance which causes an increased incidence of 
benign or malignant neoplasms, or substantially decreases the time to 
develop neoplasms, in animals or humans. The classification of 
carcinogens is discussed in section II.A of appendix C to part 132.
    Chronic toxicity is concurrent and delayed adverse effect(s) that 
occurs only as a result of a chronic exposure.
    Connecting channels of the Great Lakes are the Saint Mary's River, 
Saint Clair River, Detroit River, Niagara River, and Saint Lawrence 
River to the Canadian Border.
    Criterion continuous concentration (CCC) is an estimate of the 
highest concentration of a material in the water column to which an 
aquatic community can be exposed indefinitely without resulting in an 
unacceptable effect.
    Criterion maximum concentration (CMC) is an estimate of the highest 
concentration of a material in the water column to which an aquatic 
community can be exposed briefly without resulting in an unacceptable 
effect.
    EC50 is a statistically or graphically estimated concentration that 
is expected to cause one or more specified effects in 50 percent of a 
group of organisms under specified conditions.
    Endangered or threatened species are those species that are listed 
as endangered or threatened under section 4 of the Endangered Species 
Act.
    Existing Great Lakes discharger is any building, structure, 
facility, or installation from which there is or may be a ``discharge of 
pollutants'' (as defined in 40 CFR 122.2) to the Great Lakes System, 
that is not a new Great Lakes discharger.
    Federal Indian reservation, Indian reservation, or reservation means 
all land within the limits of any Indian reservation under the 
jurisdiction of the United States Government, notwithstanding the 
issuance of any patent, and including rights-of-way running through the 
reservation.
    Final acute value (FAV) is (a) a calculated estimate of the 
concentration of a test material such that 95 percent of the genera 
(with which acceptable acute toxicity tests have been conducted on the 
material) have higher GMAVs, or (b) the SMAV of an important and/or 
critical species, if the SMAV is lower than the calculated estimate.
    Final chronic value (FCV) is (a) a calculated estimate of the 
concentration of a test material such that 95 percent of the genera 
(with which acceptable chronic toxicity tests have been conducted on the 
material) have higher GMCVs, (b) the quotient of an FAV divided by an 
appropriate acute-chronic ratio, or (c) the SMCV of an important and/or 
critical species, if the SMCV is lower than the calculated estimate or 
the quotient, whichever is applicable.
    Final plant value (FPV) is the lowest plant value that was obtained 
with an important aquatic plant species in an acceptable toxicity test 
for which the

[[Page 518]]

concentrations of the test material were measured and the adverse effect 
was biologically important.
    Genus mean acute value (GMAV) is the geometric mean of the SMAVs for 
the genus.
    Genus mean chronic value (GMCV) is the geometric mean of the SMCVs 
for the genus.
    Great Lakes means Lake Ontario, Lake Erie, Lake Huron (including 
Lake St. Clair), Lake Michigan, and Lake Superior; and the connecting 
channels (Saint Mary's River, Saint Clair River, Detroit River, Niagara 
River, and Saint Lawrence River to the Canadian Border).
    Great Lakes States and Great Lakes Tribes, or Great Lakes States and 
Tribes means the States of Illinois, Indiana, Michigan, Minnesota, New 
York, Ohio, Pennsylvania, and Wisconsin, and any Indian Tribe as defined 
in this part which is located in whole or in part within the drainage 
basin of the Great Lakes, and for which EPA has approved water quality 
standards under section 303 of the Clean Water Act or which EPA has 
authorized to administer an NPDES program under section 402 of the Clean 
Water Act.
    Great Lakes System means all the streams, rivers, lakes and other 
bodies of water within the drainage basin of the Great Lakes within the 
United States.
    Human cancer criterion (HCC) is a Human Cancer Value (HCV) for a 
pollutant that meets the minimum data requirements for Tier I specified 
in appendix C of this part.
    Human cancer value (HCV) is the maximum ambient water concentration 
of a substance at which a lifetime of exposure from either: drinking the 
water, consuming fish from the water, and water-related recreation 
activities; or consuming fish from the water, and water-related 
recreation activities, will represent a plausible upper-bound risk of 
contracting cancer of one in 100,000 using the exposure assumptions 
specified in the Methodologies for the Development of Human Health 
Criteria and Values in appendix C of this part.
    Human noncancer criterion (HNC) is a Human Noncancer Value (HNV) for 
a pollutant that meets the minimum data requirements for Tier I 
specified in appendix C of this part.
    Human noncancer value (HNV) is the maximum ambient water 
concentration of a substance at which adverse noncancer effects are not 
likely to occur in the human population from lifetime exposure via 
either: drinking the water, consuming fish from the water, and water-
related recreation activities; or consuming fish from the water, and 
water-related recreation activities using the Methodologies for the 
Development of Human Health Criteria and Values in appendix C of this 
part.
    Indian Tribe or Tribe means any Indian Tribe, band, group, or 
community recognized by the Secretary of the Interior and exercising 
governmental authority over a Federal Indian reservation.
    LC50 is a statistically or graphically estimated concentration that 
is expected to be lethal to 50 percent of a group of organisms under 
specified conditions.
    Load allocation (LA) is the portion of a receiving water's loading 
capacity that is attributed either to one of its existing or future 
nonpoint sources or to natural background sources, as more fully defined 
at 40 CFR 130.2(g). Nonpoint sources include: in-place contaminants, 
direct wet and dry deposition, groundwater inflow, and overland runoff.
    Loading capacity is the greatest amount of loading that a water can 
receive without violating water quality standards.
    Lowest observed adverse effect level (LOAEL) is the lowest tested 
dose or concentration of a substance which resulted in an observed 
adverse effect in exposed test organisms when all higher doses or 
concentrations resulted in the same or more severe effects.
    Method detection level is the minimum concentration of an analyte 
(substance) that can be measured and reported with a 99 percent 
confidence that the analyte concentration is greater than zero as 
determined by the procedure set forth in appendix B of 40 CFR part 136.
    Minimum Level (ML) is the concentration at which the entire 
analytical system must give a recognizable signal and acceptable 
calibration point. The

[[Page 519]]

ML is the concentration in a sample that is equivalent to the 
concentration of the lowest calibration standard analyzed by a specific 
analytical procedure, assuming that all the method-specified sample 
weights, volumes and processing steps have been followed.
    New Great Lakes discharger is any building, structure, facility, or 
installation from which there is or may be a ``discharge of pollutants'' 
(as defined in 40 CFR 122.2) to the Great Lakes System, the construction 
of which commenced after March 23, 1997.
    No observed adverse effect level (NOAEL) is the highest tested dose 
or concentration of a substance which resulted in no observed adverse 
effect in exposed test organisms where higher doses or concentrations 
resulted in an adverse effect.
    No observed effect concentration (NOEC) is the highest concentration 
of toxicant to which organisms are exposed in a full life-cycle or 
partial life-cycle (short-term) test, that causes no observable adverse 
effects on the test organisms (i.e., the highest concentration of 
toxicant in which the values for the observed responses are not 
statistically significantly different from the controls).
    Open waters of the Great Lakes (OWGLs) means all of the waters 
within Lake Erie, Lake Huron (including Lake St. Clair), Lake Michigan, 
Lake Ontario, and Lake Superior lakeward from a line drawn across the 
mouth of tributaries to the Lakes, including all waters enclosed by 
constructed breakwaters, but not including the connecting channels.
    Quantification level is a measurement of the concentration of a 
contaminant obtained by using a specified laboratory procedure 
calibrated at a specified concentration above the method detection 
level. It is considered the lowest concentration at which a particular 
contaminant can be quantitatively measured using a specified laboratory 
procedure for monitoring of the contaminant.
    Quantitative structure activity relationship (QSAR) or structure 
activity relationship (SAR) is a mathematical relationship between a 
property (activity) of a chemical and a number of descriptors of the 
chemical. These descriptors are chemical or physical characteristics 
obtained experimentally or predicted from the structure of the chemical.
    Risk associated dose (RAD) is a dose of a known or presumed 
carcinogenic substance in (mg/kg)/day which, over a lifetime of 
exposure, is estimated to be associated with a plausible upper bound 
incremental cancer risk equal to one in 100,000.
    Species mean acute value (SMAV) is the geometric mean of the results 
of all acceptable flow-through acute toxicity tests (for which the 
concentrations of the test material were measured) with the most 
sensitive tested life stage of the species. For a species for which no 
such result is available for the most sensitive tested life stage, the 
SMAV is the geometric mean of the results of all acceptable acute 
toxicity tests with the most sensitive tested life stage.
    Species mean chronic value (SMCV) is the geometric mean of the 
results of all acceptable life-cycle and partial life-cycle toxicity 
tests with the species; for a species of fish for which no such result 
is available, the SMCV is the geometric mean of all acceptable early 
life-stage tests.
    Stream design flow is the stream flow that represents critical 
conditions, upstream from the source, for protection of aquatic life, 
human health, or wildlife.
    Threshold effect is an effect of a substance for which there is a 
theoretical or empirically established dose or concentration below which 
the effect does not occur.
    Tier I criteria are numeric values derived by use of the Tier I 
methodologies in appendixes A, C and D of this part, the methodology in 
appendix B of this part, and the procedures in appendix F of this part, 
that either have been adopted as numeric criteria into a water quality 
standard or are used to implement narrative water quality criteria.
    Tier II values are numeric values derived by use of the Tier II 
methodologies in appendixes A and C of this part, the methodology in 
appendix B of this part, and the procedures in appendix F of this part, 
that are used to implement narrative water quality criteria.

[[Page 520]]

    Total maximum daily load (TMDL) is the sum of the individual 
wasteload allocations for point sources and load allocations for 
nonpoint sources and natural background, as more fully defined at 40 CFR 
130.2(i). A TMDL sets and allocates the maximum amount of a pollutant 
that may be introduced into a water body and still assure attainment and 
maintenance of water quality standards.
    Tributaries of the Great Lakes System means all waters of the Great 
Lakes System that are not open waters of the Great Lakes, or connecting 
channels.
    Uncertainty factor (UF) is one of several numeric factors used in 
operationally deriving criteria from experimental data to account for 
the quality or quantity of the available data.
    Uptake is acquisition of a substance from the environment by an 
organism as a result of any active or passive process.
    Wasteload allocation (WLA) is the portion of a receiving water's 
loading capacity that is allocated to one of its existing or future 
point sources of pollution, as more fully defined at 40 CFR 130.2(h). In 
the absence of a TMDL approved by EPA pursuant to 40 CFR 130.7 or an 
assessment and remediation plan developed and approved in accordance 
with procedure 3.A of appendix F of this part, a WLA is the allocation 
for an individual point source, that ensures that the level of water 
quality to be achieved by the point source is derived from and complies 
with all applicable water quality standards.
    Wet weather point source means any discernible, confined and 
discrete conveyance from which pollutants are, or may be, discharged as 
the result of a wet weather event. Discharges from wet weather point 
sources shall include only: discharges of storm water from a municipal 
separate storm sewer as defined at 40 CFR 122.26(b)(8); storm water 
discharge associated with industrial activity as defined at 40 CFR 
122.26(b)(14); discharges of storm water and sanitary wastewaters 
(domestic, commercial, and industrial) from a combined sewer overflow; 
or any other stormwater discharge for which a permit is required under 
section 402(p) of the Clean Water Act. A storm water discharge 
associated with industrial activity which is mixed with process 
wastewater shall not be considered a wet weather point source.



Sec. 132.3  Adoption of criteria.

    The Great Lakes States and Tribes shall adopt numeric water quality 
criteria for the purposes of section 303(c) of the Clean Water Act 
applicable to waters of the Great Lakes System in accordance with Sec. 
132.4(d) that are consistent with:
    (a) The acute water quality criteria for protection of aquatic life 
in Table 1 of this part, or a site-specific modification thereof in 
accordance with procedure 1 of appendix F of this part;
    (b) The chronic water quality criteria for protection of aquatic 
life in Table 2 of this part, or a site-specific modification thereof in 
accordance with procedure 1 of appendix F of this part;
    (c) The water quality criteria for protection of human health in 
Table 3 of this part, or a site-specific modification thereof in 
accordance with procedure 1 of appendix F of this part; and
    (d) The water quality criteria for protection of wildlife in Table 4 
of this part, or a site-specific modification thereof in accordance with 
procedure 1 of appendix F of this part.



Sec. 132.4  State adoption and application of methodologies, policies and 

procedures.

    (a) The Great Lakes States and Tribes shall adopt requirements 
applicable to waters of the Great Lakes System for the purposes of 
sections 118, 301, 303, and 402 of the Clean Water Act that are 
consistent with:
    (1) The definitions in Sec. 132.2;
    (2) The Methodologies for Development of Aquatic Life Criteria and 
Values in appendix A of this part;
    (3) The Methodology for Development of Bioaccumulation Factors in 
appendix B of this part;
    (4) The Methodologies for Development of Human Health Criteria and 
Values in appendix C of this part;
    (5) The Methodology for Development of Wildlife Criteria in appendix 
D of this part;
    (6) The Antidegradation Policy in appendix E of this part; and
    (7) The Implementation Procedures in appendix F of this part.

[[Page 521]]

    (b) Except as provided in paragraphs (g), (h), and (i) of this 
section, the Great Lakes States and Tribes shall use methodologies 
consistent with the methodologies designated as Tier I methodologies in 
appendixes A, C, and D of this part, the methodology in appendix B of 
this part, and the procedures in appendix F of this part when adopting 
or revising numeric water quality criteria for the purposes of section 
303(c) of the Clean Water Act for the Great Lakes System.
    (c) Except as provided in paragraphs (g), (h), and (i) of this 
section, the Great Lakes States and Tribes shall use methodologies and 
procedures consistent with the methodologies designated as Tier I 
methodologies in appendixes A, C, and D of this part, the Tier II 
methodologies in appendixes A and C of this part, the methodology in 
appendix B of this part, and the procedures in appendix F of this part 
to develop numeric criteria and values when implementing narrative water 
quality criteria adopted for purposes of section 303(c) of the Clean 
Water Act.
    (d) The water quality criteria and values adopted or developed 
pursuant to paragraphs (a) through (c) of this section shall apply as 
follows:
    (1) The acute water quality criteria and values for the protection 
of aquatic life, or site-specific modifications thereof, shall apply to 
all waters of the Great Lakes System.
    (2) The chronic water quality criteria and values for the protection 
of aquatic life, or site-specific modifications thereof, shall apply to 
all waters of the Great Lakes System.
    (3) The water quality criteria and values for protection of human 
health, or site-specific modifications thereof, shall apply as follows:
    (i) Criteria and values derived as HCV-Drinking and HNV-Drinking 
shall apply to the Open Waters of the Great Lakes, all connecting 
channels of the Great Lakes, and all other waters of the Great Lakes 
System that have been designated as public water supplies by any State 
or Tribe in accordance with 40 CFR 131.10.
    (ii) Criteria and values derived as HCV-Nondrinking and HNV-
Nondrinking shall apply to all waters of the Great Lakes System other 
than those in paragraph (d)(3)(i) of this section.
    (4) Criteria for protection of wildlife, or site-specific 
modifications thereof, shall apply to all waters of the Great Lakes 
System.
    (e) The Great Lakes States and Tribes shall apply implementation 
procedures consistent with the procedures in appendix F of this part for 
all applicable purposes under the Clean Water Act, including developing 
total maximum daily loads for the purposes of section 303(d) and water 
quality-based effluent limits for the purposes of section 402, in 
establishing controls on the discharge of any pollutant to the Great 
Lakes System by any point source with the following exceptions:
    (1) The Great Lakes States and Tribes are not required to apply 
these implementation procedures in establishing controls on the 
discharge of any pollutant by a wet weather point source. Any adopted 
implementation procedures shall conform with all applicable Federal, 
State and Tribal requirements.
    (2) The Great Lakes States and Tribes may, but are not required to, 
apply procedures consistent with procedures 1, 2, 3, 4, 5, 7, 8, and 9 
of appendix F of this part in establishing controls on the discharge of 
any pollutant set forth in Table 5 of this part. Any procedures applied 
in lieu of these implementation procedures shall conform with all 
applicable Federal, State, and Tribal requirements.
    (f) The Great Lakes States and Tribes shall apply an antidegradation 
policy consistent with the policy in appendix E for all applicable 
purposes under the Clean Water Act, including 40 CFR 131.12.
    (g) For pollutants listed in Table 5 of this part, the Great Lakes 
States and Tribes shall:
    (1) Apply any methodologies and procedures acceptable under 40 CFR 
part 131 when developing water quality criteria or implementing 
narrative criteria; and
    (2) Apply the implementation procedures in appendix F of this part 
or alternative procedures consistent with all applicable Federal, State, 
and Tribal laws.

[[Page 522]]

    (h) For any pollutant other than those in Table 5 of this part for 
which the State or Tribe demonstrates that a methodology or procedure in 
this part is not scientifically defensible, the Great Lakes States and 
Tribes shall:
    (1) Apply an alternative methodology or procedure acceptable under 
40 CFR part 131 when developing water quality criteria; or
    (2) Apply an alternative implementation procedure that is consistent 
with all applicable Federal, State, and Tribal laws.
    (i) Nothing in this part shall prohibit the Great Lakes States and 
Tribes from adopting numeric water quality criteria, narrative criteria, 
or water quality values that are more stringent than criteria or values 
specified in Sec. 132.3 or that would be derived from application of 
the methodologies set forth in appendixes A, B, C, and D of this part, 
or to adopt antidegradation standards and implementation procedures more 
stringent than those set forth in appendixes E and F of this part.



Sec. 132.5  Procedures for adoption and EPA review.

    (a) Except as provided in paragraph (c) of this section, the Great 
Lakes States and Tribes shall adopt and submit for EPA review and 
approval the criteria, methodologies, policies, and procedures developed 
pursuant to this part no later than September 23, 1996. With respect to 
procedure 3.C of appendix F of this part, each Great Lakes State and 
Tribe shall make its submission to EPA no later than May 13, 2002.
    (b) The following elements must be included in each submission to 
EPA for review:
    (1) The criteria, methodologies, policies, and procedures developed 
pursuant to this part;
    (2) Certification by the Attorney General or other appropriate legal 
authority pursuant to 40 CFR 123.62 and 40 CFR 131.6(e) as appropriate;
    (3) All other information required for submission of National 
Pollutant Discharge Elimination System (NPDES) program modifications 
under 40 CFR 123.62; and
    (4) General information which will aid EPA in determining whether 
the criteria, methodologies, policies and procedures are consistent with 
the requirements of the Clean Water Act and this part, as well as 
information on general policies which may affect their application and 
implementation.
    (c) The Regional Administrator may extend the deadline for the 
submission required in paragraph (a) of this section if the Regional 
Administrator believes that the submission will be consistent with the 
requirements of this part and can be reviewed and approved pursuant to 
this section no later than March 23, 1997, or, for procedure 3.C of 
appendix F of this part, no later than November 13, 2002.
    (d) If a Great Lakes State or Tribe makes no submission pursuant to 
this part to EPA for review, the requirements of this part shall apply 
to discharges to waters of the Great Lakes System located within the 
State or Federal Indian reservation upon EPA's publication of a final 
rule indicating the effective date of the part 132 requirements in the 
identified jurisdictions.
    (e) If a Great Lakes State or Tribe submits criteria, methodologies, 
policies, and procedures pursuant to this part to EPA for review that 
contain substantial modifications of the State or Tribal NPDES program, 
EPA shall issue public notice and provide a minimum of 30 days for 
public comment on such modifications. The public notice shall conform 
with the requirements of 40 CFR 123.62.
    (f) After review of State or Tribal submissions under this section, 
and following the public comment period in subparagraph (e) of this 
section, if any, EPA shall either:
    (1) Publish notice of approval of the submission in the Federal 
Register within 90 days of such submission; or
    (2) Notify the State or Tribe within 90 days of such submission that 
EPA has determined that all or part of the submission is inconsistent 
with the requirements of the Clean Water Act or this part and identify 
any necessary changes to obtain EPA approval. If the State or Tribe 
fails to adopt such changes within 90 days after the notification, EPA 
shall publish a notice in the Federal Register identifying the approved 
and disapproved elements of

[[Page 523]]

the submission and a final rule in the Federal Register identifying the 
provisions of part 132 that shall apply to discharges within the State 
or Federal Indian reservation.
    (g) EPA's approval or disapproval of a State or Tribal submission 
shall be based on the requirements of this part and of the Clean Water 
Act. EPA's determination whether the criteria, methodologies, policies, 
and procedures in a State or Tribal submission are consistent with the 
requirements of this part will be based on whether:
    (1) For pollutants listed in Tables 1, 2, 3, and 4 of this part. The 
Great Lakes State or Tribe has adopted numeric water quality criteria as 
protective as each of the numeric criteria in Tables 1, 2, 3, and 4 of 
this part, taking into account any site-specific criteria modifications 
in accordance with procedure 1 of appendix F of this part;
    (2) For pollutants other than those listed in Tables 1, 2, 3, 4, and 
5 of this part. The Great Lakes State or Tribe demonstrates that either:
    (i) It has adopted numeric criteria in its water quality standards 
that were derived, or are as protective as or more protective than could 
be derived, using the methodologies in appendixes A, B, C, and D of this 
part, and the site-specific criteria modification procedures in 
accordance with procedure 1 of appendix F of this part; or
    (ii) It has adopted a procedure by which water quality-based 
effluent limits and total maximum daily loads are developed using the 
more protective of:
    (A) Numeric criteria adopted by the State into State water quality 
standards and approved by EPA prior to March 23, 1997; or
    (B) Water quality criteria and values derived pursuant to Sec. 
132.4(c); and
    (3) For methodologies, policies, and procedures. The Great Lakes 
State or Tribe has adopted methodologies, policies, and procedures as 
protective as the corresponding methodology, policy, or procedure in 
Sec. 132.4. The Great Lakes State or Tribe may adopt provisions that 
are more protective than those contained in this part. Adoption of a 
more protective element in one provision may be used to offset a less 
protective element in the same provision as long as the adopted 
provision is as protective as the corresponding provision in this part; 
adoption of a more protective element in one provision, however, is not 
justification for adoption of a less protective element in another 
provision of this part.
    (h) A submission by a Great Lakes State or Tribe will need to 
include any provisions that EPA determines, based on EPA's authorities 
under the Clean Water Act and the results of consultation under section 
7 of the Endangered Species Act, are necessary to ensure that water 
quality is not likely to jeopardize the continued existence of any 
endangered or threatened species listed under section 4 of the 
Endangered Species Act or result in the destruction or adverse 
modification of such species' critical habitat.
    (i) EPA's approval of the elements of a State's or Tribe's 
submission will constitute approval under section 118 of the Clean Water 
Act, approval of the submitted water quality standards pursuant to 
section 303 of the Clean Water Act, and approval of the submitted 
modifications to the State's or Tribe's NPDES program pursuant to 
section 402 of the Clean Water Act.

[60 FR 15387, Mar. 23, 1995, as amended at 65 FR 67650, Nov. 13, 2000]



Sec. 132.6  Application of part 132 requirements in Great Lakes States and 

Tribes.

    (a) Effective September 5, 2000, the requirements of Paragraph C.1 
of Procedure 2 in Appendix F of this Part and the requirements of 
paragraph F.2 of Procedure 5 in Appendix F of this Part shall apply to 
discharges within the Great Lakes System in the State of Indiana.
    (b) Effective September 5, 2000, the requirements of Procedure 3 in 
Appendix F of this Part shall apply for purposes of developing total 
maximum daily loads in the Great Lakes System in the State of Illinois.
    (c) Effective September 5, 2000, the requirements of Paragraphs C.1 
and D of Procedure 6 in Appendix F of this Part shall apply to 
discharges within the Great Lakes System in the States of Indiana, 
Michigan and Ohio.
    (d) Effective November 6, 2000, Sec. 132.4(d)(2) shall apply to 
waters designated as ``Class D'' under section

[[Page 524]]

701.9 of Title 6 of the New York State Codes, Rules and Regulations 
within the Great Lakes System in the State of New York. For purposes of 
this paragraph, chronic water quality criteria and values for the 
protection of aquatic life adopted or developed pursuant to Sec. 
132.4(a) through (c) are the criteria and values adopted or developed by 
New York State Department of Environmental Conservation (see section 
703.5 of Title 6 of the New York State Codes, Rules and Regulations) and 
approved by EPA under section 303(c) of the Clean Water Act.
    (e) Effective November 6, 2000, the criteria for mercury contained 
in Table 4 of this part shall apply to waters within the Great Lakes 
System in the State of New York.
    (f) Effective December 6, 2000, the acute and chronic aquatic life 
criteria for copper and nickel in Tables 1 and 2 of this part and the 
chronic aquatic life criterion for endrin in Table 2 of this part shall 
apply to the waters of the Great Lakes System in the State of Wisconsin.
    (g) Effective February 5, 2001, the chronic aquatic life criterion 
for selenium in Table 2 of this part shall apply to the waters of the 
Great Lakes System in the State of Wisconsin.
    (h) Effective December 6, 2000, the requirements of procedure 3 in 
appendix F of this part shall apply for purposes of developing total 
maximum daily loads in the Great Lakes System in the State of Wisconsin.
    (i) Effective December 6, 2000, the requirements of paragraphs D and 
E of procedure 5 in appendix F of this part shall apply to discharges 
within the Great Lakes System in the State of Wisconsin.
    (j) Effective December 6, 2000, the requirements of paragraph D of 
procedure 6 in appendix F of this part shall apply to discharges within 
the Great Lakes System in the State of Wisconsin.

[65 FR 47874, Aug. 4, 2000, as amended at 65 FR 59737, Oct. 6, 2000; 65 
FR 66511, Nov. 6, 2000]



                         Sec. Tables to Part 132

Table 1--Acute Water Quality Criteria for Protection of Aquatic Life in 
                              Ambient Water

    EPA recommends that metals criteria be expressed as dissolved 
concentrations (see appendix A, I.A.4 for more information regarding 
metals criteria).
    (a)

------------------------------------------------------------------------
                                                      CMC     Conversion
                    Chemical                      ([micro]g/    factor
                                                      L)         (CF)
------------------------------------------------------------------------
Arsenic (III)...................................   \a,b\          1.000
                                                     339.8
Chromium (VI)...................................   \a,b\          0.982
                                                      16.02
Cyanide.........................................  \c\ 22            n/a
Dieldrin........................................   \d\ 0.24         n/a
Endrin..........................................   \d\ 0.086        n/a
Lindane.........................................   \d\ 0.95         n/a
Mercury (II)....................................   \a,b\           0.85
                                                       1.694
Parathion.......................................   \d\ 0.065        n/a
------------------------------------------------------------------------
\a\ CMC=CMC\tr\.
\b\ CMC\d\=(CMC\tr\) CF. The CMC\d\ shall be rounded to two significant
  digits.
\c\ CMC should be considered free cyanide as CN.
\d\ CMC=CMC\t\.
 
Notes:
The term ``n/a'' means not applicable.
CMC is Criterion Maximum Concentration.
CMC\tr\ is the CMC expressed as total recoverable.
CMC\d\ is the CMC expressed as a dissolved concentration.
CMC\t\ is the CMC expressed as a total concentration.

    (b)

------------------------------------------------------------------------
                                                              Conversion
               Chemical                     mA         bA       factor
                                                                 (CF)
------------------------------------------------------------------------
Cadmium \a,b\.........................     1.128     -3.6867       0.85
Chromium (III) \a,b\..................     0.819     +3.7256      0.316
Copper \a,b\..........................     0.9422    -1.700       0.960
Nickel \a,b\..........................     0.846     +2.255       0.998
Pentachlorophenol \c\.................     1.005     -4.869         n/a
Zinc \a,b\............................     0.8473    +0.884       0.978
------------------------------------------------------------------------
\a\ CMC\tr\=exp {mA [ln (hardness)]+bA{time} .
\b\ CMC\d\=(CMC\tr\) CF. The CMC\d\ shall be rounded to two significant
  digits.
\c\ CMC\t\=exp mA [pH]+bA{time} . The CMC\t\ shall be rounded
  to two significant digits.
 
Notes:
The term ``exp'' represents the base e exponential function.
The term ``n/a'' means not applicable.
CMC is Criterion Maximum Concentration.
CMC\tr\ is the CMC expressed as total recoverable.
CMC\d\ is the CMC expressed as a dissolved concentration.
CMC\t\ is the CMC expressed as a total concentration.


[60 FR 15387, Mar. 23, 1995, as amended at 65 FR 35286, June 2, 2000]

 Table 2--Chronic Water Quality Criteria for Protection of Aquatic Life 
                            in Ambient Water

    EPA recommends that metals criteria be expressed as dissolved 
concentrations (see appendix A, I.A.4 for more information regarding 
metals criteria).
    (a)

[[Page 525]]



------------------------------------------------------------------------
                                                     CCC      Conversion
                    Chemical                      ([micro]g/    factor
                                                      L)         (CF)
------------------------------------------------------------------------
Arsenic (III)..................................  \a,b\ 147.9      1.000
Chromium (VI)..................................  \a,b\ 10.98      0.962
Cyanide........................................   \c\ 5.2           n/a
Dieldrin.......................................   \d\ 0.056         n/a
Endrin.........................................   \d\ 0.036         n/a
Mercury (II)...................................   \a,b\            0.85
                                                      0.9081
Parathion......................................   \d\ 0.013         n/a
Selenium.......................................  \a,b\ 5          0.922
------------------------------------------------------------------------
\a\ CCC=CCC\tr\.
\b\ CCC\d\=(CCC\tr\) CF. The CCC\d\ shall be rounded to two significant
  digits.
\c\ CCC should be considered free cyanide as CN.
\d\ CCC=CCC\t\.
 
Notes:
The term ``n/a'' means not applicable.
CCC is Criterion Continuous Concentration.
CCC\tr\ is the CCC expressed as total recoverable.
CCC\d\ is the CCC expressed as a dissolved concentration.
CCC\t\ is the CCC expressed as a total concentration.

    (b)

------------------------------------------------------------------------
                                                              Conversion
                 Chemical                      mc       bc      factor
                                                                 (CF)
------------------------------------------------------------------------
Cadmium \a,b\.............................   0.7852  -2.715       0.850
Chromium (III) \a,b\......................   0.819   +0.6848      0.860
Copper \a,b\..............................   0.8545  -1.702       0.960
Nickel \a,b\..............................   0.846   +0.0584      0.997
Pentachlorophenol \c\.....................   1.005   -5.134         n/a
Zinc \a,b\................................   0.8473  +0.884       0.986
------------------------------------------------------------------------
\a\ CCC\tr\=exp {mc[ln (hardness)]+bc{time} .
\b\ CCCd=(CCC\tr\) (CF). The CCC\d\ shall be rounded to two significant
  digits.
\c\ CMC\t\=exp {mA[pH]+bA{time} . The CMC\t\ shall be rounded to two
  significant digits.
 
Notes:
The term ``exp'' represents the base e exponential function.
The term ``n/a'' means not applicable.
CCC is Criterion Continuous Concentration.
CCC\tr\ is the CCC expressed as total recoverable.
CCC\d\ is the CCC expressed as a dissolved concentration.
CCC\t\ is the CCC expressed as a total concentration.


                         Table 3--Water Quality Criteria for Protection of Human Health
----------------------------------------------------------------------------------------------------------------
                                                                       HNV ([micro]g/L)       HCV ([micro]g/L)
                             Chemical                              ---------------------------------------------
                                                                    Drinking  Nondrinking  Drinking  Nondrinking
----------------------------------------------------------------------------------------------------------------
Benzene...........................................................     1.9E1      5.1E2       1.2E1      3.1E2
Chlordane.........................................................    1.4E-3     1.4E-3      2.5E-4     2.5E-4
Chlorobenzene.....................................................     4.7E2      3.2E3
Cyanides..........................................................     6.0E2      4.8E4
DDT...............................................................    2.0E-3     2.0E-3      1.5E-4     1.5E-4
Dieldrin..........................................................    4.1E-4     4.1E-4      6.5E-6     6.5E-6
2,4-Dimethylphenol................................................     4.5E2      8.7E3
2,4-Dinitrophenol.................................................     5.5E1      2.8E3
Hexachlorobenzene.................................................    4.6E-2     4.6E-2      4.5E-4     4.5E-4
Hexachloroethane..................................................       6.0        7.6         5.3        6.7
Lindane...........................................................    4.7E-1     5.0E-1
Mercury \1\.......................................................    1.8E-3     1.8E-3
Methylene chloride................................................     1.6E3      9.0E4       4.7E1      2.6E3
2,3,7,8-TCDD......................................................    6.7E-8     6.7E-8      8.6E-9     8.6E-9
Toluene...........................................................     5.6E3      5.1E4
Toxaphene.........................................................                           6.8E-5     6.8E-5
Trichloroethylene.................................................                            2.9E1      3.7E2
----------------------------------------------------------------------------------------------------------------
\1\ Includes methylmercury.


[60 FR 15387, Mar. 23, 1995, as amended at 62 FR 11731, Mar. 12, 1997; 
62 FR 52924, Oct. 9, 1997]

       Table 4--Water Quality Criteria for Protection of Wildlife
------------------------------------------------------------------------
                  Chemical                      Criteria ([micro]g/L)
------------------------------------------------------------------------
DDT and metabolites........................  1.1E-5
Mercury (including methylmercury)..........  1.3E-3
PCBs (class)...............................  1.2E-4
2,3,7,8-TCDD...............................  3.1E-9
------------------------------------------------------------------------


[60 FR 15387, Mar. 23, 1995, as amended at 62 FR 11731, Mar. 12, 1997]

 Table 5--Pollutants Subject to Federal, State, and Tribal Requirements

    Alkalinity
    Ammonia
    Bacteria
    Biochemical oxygen demand (BOD)
    Chlorine
    Color
    Dissolved oxygen
    Dissolved solids
    pH
    Phosphorus
    Salinity
    Temperature
    Total and suspended solids
    Turbidity

 Table 6--Pollutants of Initial Focus in the Great Lakes Water Quality 
                               Initiative

    A. Pollutants that are bioaccumulative chemicals of concern (BCCs):
    Chlordane
    4,4'-DDD; p,p'-DDD; 4,4'-TDE; p,p'-TDE
    4,4'-DDE; p,p'-DDE
    4,4'-DDT; p,p'-DDT
    Dieldrin
    Hexachlorobenzene
    Hexachlorobutadiene; hexachloro-1, 3-butadiene
    Hexachlorocyclohexanes; BHCs
    alpha-Hexachlorocyclohexane; alpha-BHC
    beta-Hexachlorocyclohexane; beta-BHC
    delta-Hexachlorocyclohexane; delta-BHC
    Lindane; gamma-hexachlorocyclohexane; gamma-BHC
    Mercury
    Mirex
    Octachlorostyrene
    PCBs; polychlorinated biphenyls
    Pentachlorobenzene
    Photomirex
    2,3,7,8-TCDD; dioxin
    1,2,3,4-Tetrachlorobenzene
    1,2,4,5-Tetrachlorobenzene Toxaphene
    B. Pollutants that are not bioaccumulative chemicals of concern:
    Acenaphthene
    Acenaphthylene
    Acrolein; 2-propenal

[[Page 526]]

    Acrylonitrile
    Aldrin
    Aluminum
    Anthracene
    Antimony
    Arsenic
    Asbestos
    1,2-Benzanthracene; benz[a]anthracene
    Benzene
    Benzidine
    Benzo[a]pyrene; 3,4-benzopyrene
    3,4-Benzofluoranthene; benzo[b]fluoranthene
    11,12-Benzofluoranthene; benzo[k]fluoranthene
    1,12-Benzoperylene; benzo[ghi]perylene
    Beryllium
    Bis(2-chloroethoxy) methane
    Bis(2-chloroethyl) ether
    Bis(2-chloroisopropyl) ether
    Bromoform; tribomomethane
    4-Bromophenyl phenyl ether
    Butyl benzyl phthalate
    Cadmium
    Carbon tetrachloride; tetrachloromethane
    Chlorobenzene
    p-Chloro-m-cresol; 4-chloro-3-methylphenol
    Chlorodibromomethane
    Chlorethane
    2-Chloroethyl vinyl ether
    Chloroform; trichloromethane
    2-Chloronaphthalene
    2-Chlorophenol
    4-Chlorophenyl phenyl ether
    Chlorpyrifos
    Chromium
    Chrysene
    Copper
    Cyanide
    2,4-D; 2,4-Dichlorophenoxyacetic acid
    DEHP; di(2-ethylhexyl) phthalate
    Diazinon
    1,2:5,6-Dibenzanthracene; dibenz[a,h]anthracene
    Dibutyl phthalate; di-n-butyl phthalate
    1,2-Dichlorobenzene
    1,3-Dichlorobenzene
    1,4-Dichlorobenzene
    3,3'-Dichlorobenzidine
    Dichlorobromomethane; bromodichloromethane
    1,1-Dichloroethane
    1,2-Dichloroethane
    1,1-Dichloroethylene; vinylidene chloride
    1,2-trans-Dichloroethylene
    2,4-Dichlorophenol
    1,2-Dichloropropane
    1,3-Dichloropropene; 1,3-dichloropropylene
    Diethyl phthalate
    2,4-Dimethylphenol; 2,4-xylenol
    Dimethyl phthalate
    4,6-Dinitro-o-cresol; 2-methyl-4,6-dinitrophenol
    2,4-Dinitrophenol
    2,4-Dinitrotoluene
    2,6-Dinitrotoluene
    Dioctyl phthalate; di-n-octyl phthalate
    1,2-Diphenylhydrazine
    Endosulfan; thiodan
    alpha-Endosulfan
    beta-Endosulfan
    Endosulfan sulfate
    Endrin
    Endrin aldehyde
    Ethylbenzene
    Fluoranthene
    Fluorene; 9H-fluorene
    Fluoride
    Guthion
    Heptachlor
    Heptachlor epoxide
    Hexachlorocyclopentadiene
    Hexachloroethane
    Indeno[1,2,3-cd]pyrene; 2,3-o-phenylene pyrene
    Isophorone
    Lead
    Malathion
    Methoxychlor
    Methyl bromide; bromomethane
    Methyl chloride; chloromethane
    Methylene chloride; dichloromethane
    Napthalene
    Nickel
    Nitrobenzene
    2-Nitrophenol
    4-Nitrophenol
    N-Nitrosodimethylamine
    N-Nitrosodiphenylamine
    N-Nitrosodipropylamine; N-nitrosodi-n-propylamine
    Parathion
    Pentachlorophenol
    Phenanthrene
    Phenol
    Iron
    Pyrene
    Selenium
    Silver
    1,1,2,2-Tetrachloroethane
    Tetrachloroethylene
    Thallium
    Toluene; methylbenzene
    1,2,4-Trichlorobenzene
    1,1,1-Trichloroethane
    1,1,2-Trichloroethane
    Trichloroethylene; trichloroethene
    2,4,6-Trichlorophenol
    Vinyl chloride; chloroethylene; chloroethene
    Zinc



   Sec. Appendix A to Part 132--Great Lakes Water Quality Initiative 

    Methodologies for Development of Aquatic Life Criteria and Values

         Methodology for Deriving Aquatic Life Criteria: Tier I

    Great Lakes States and Tribes shall adopt provisions consistent with 
(as protective as) this appendix.

[[Page 527]]

                             I. Definitions

    A. Material of Concern. When defining the material of concern the 
following should be considered:
    1. Each separate chemical that does not ionize substantially in most 
natural bodies of water should usually be considered a separate 
material, except possibly for structurally similar organic compounds 
that only exist in large quantities as commercial mixtures of the 
various compounds and apparently have similar biological, chemical, 
physical, and toxicological properties.
    2. For chemicals that ionize substantially in most natural bodies of 
water (e.g., some phenols and organic acids, some salts of phenols and 
organic acids, and most inorganic salts and coordination complexes of 
metals and metalloid), all forms that would be in chemical equilibrium 
should usually be considered one material. Each different oxidation 
state of a metal and each different non-ionizable covalently bonded 
organometallic compound should usually be considered a separate 
material.
    3. The definition of the material of concern should include an 
operational analytical component. Identification of a material simply as 
``sodium,'' for example, implies ``total sodium,'' but leaves room for 
doubt. If ``total'' is meant, it must be explicitly stated. Even 
``total'' has different operational definitions, some of which do not 
necessarily measure ``all that is there'' in all samples. Thus, it is 
also necessary to reference or describe the analytical method that is 
intended. The selection of the operational analytical component should 
take into account the analytical and environmental chemistry of the 
material and various practical considerations, such as labor and 
equipment requirements, and whether the method would require measurement 
in the field or would allow measurement after samples are transported to 
a laboratory.
    a. The primary requirements of the operational analytical component 
are that it be appropriate for use on samples of receiving water, that 
it be compatible with the available toxicity and bioaccumulation data 
without making extrapolations that are too hypothetical, and that it 
rarely result in underprotection or overprotection of aquatic organisms 
and their uses. Toxicity is the property of a material, or combination 
of materials, to adversely affect organisms.
    b. Because an ideal analytical measurement will rarely be available, 
an appropriate compromise measurement will usually have to be used. This 
compromise measurement must fit with the general approach that if an 
ambient concentration is lower than the criterion, unacceptable effects 
will probably not occur, i.e., the compromise measure must not err on 
the side of underprotection when measurements are made on a surface 
water. What is an appropriate measurement in one situation might not be 
appropriate for another. For example, because the chemical and physical 
properties of an effluent are usually quite different from those of the 
receiving water, an analytical method that is appropriate for analyzing 
an effluent might not be appropriate for expressing a criterion, and 
vice versa. A criterion should be based on an appropriate analytical 
measurement, but the criterion is not rendered useless if an ideal 
measurement either is not available or is not feasible.
    Note: The analytical chemistry of the material might have to be 
taken into account when defining the material or when judging the 
acceptability of some toxicity tests, but a criterion must not be based 
on the sensitivity of an analytical method. When aquatic organisms are 
more sensitive than routine analytical methods, the proper solution is 
to develop better analytical methods.
    4. It is now the policy of EPA that the use of dissolved metal to 
set and measure compliance with water quality standards is the 
recommended approach, because dissolved metal more closely approximates 
the bioavailable fraction of metal in the water column that does total 
recoverable metal. One reason is that a primary mechanism for water 
column toxicity is adsorption at the gill surface which requires metals 
to be in the dissolved form. Reasons for the consideration of total 
recoverable metals criteria include risk management considerations not 
covered by evaluation of water column toxicity. A risk manager may 
consider sediments and food chain effects and may decide to take a 
conservative approach for metals, considering that metals are very 
persistent chemicals. This approach could include the use of total 
recoverable metal in water quality standards. A range of different risk 
management decisions can be justified. EPA recommends that State water 
quality standards be based on dissolved metal. EPA will also approve a 
State risk management decision to adopt standards based on total 
recoverable metal, if those standards are otherwise approvable under 
this program.
    B. Acute Toxicity. Concurrent and delayed adverse effect(s) that 
results from an acute exposure and occurs within any short observation 
period which begins when the exposure begins, may extend beyond the 
exposure period, and usually does not constitute a substantial portion 
of the life span of the organism. (Concurrent toxicity is an adverse 
effect to an organism that results from, and occurs during, its exposure 
to one or more test materials.) Exposure constitutes contact with a 
chemical or physical agent. Acute exposure, however, is exposure of an 
organism for any short period which usually does not constitute a 
substantial portion of its life span.

[[Page 528]]

    C. Chronic Toxicity. Concurrent and delayed adverse effect(s) that 
occurs only as a result of a chronic exposure. Chronic exposure is 
exposure of an organism for any long period or for a substantial portion 
of its life span.

                         II. Collection of Data

    A. Collect all data available on the material concerning toxicity to 
aquatic animals and plants.
    B. All data that are used should be available in typed, dated, and 
signed hard copy (e.g., publication, manuscript, letter, memorandum, 
etc.) with enough supporting information to indicate that acceptable 
test procedures were used and that the results are reliable. In some 
cases, it might be appropriate to obtain written information from the 
investigator, if possible. Information that is not available for 
distribution shall not be used.
    C. Questionable data, whether published or unpublished, must not be 
used. For example, data must be rejected if they are from tests that did 
not contain a control treatment, tests in which too many organisms in 
the control treatment died or showed signs of stress or disease, and 
tests in which distilled or deionized water was used as the dilution 
water without the addition of appropriate salts.
    D. Data on technical grade materials may be used if appropriate, but 
data on formulated mixtures and emulsifiable concentrates of the 
material must not be used.
    E. For some highly volatile, hydrolyzable, or degradable materials, 
it might be appropriate to use only results of flow-through tests in 
which the concentrations of test material in test solutions were 
measured using acceptable analytical methods. A flow-through test is a 
test with aquatic organisms in which test solutions flow into constant-
volume test chambers either intermittently (e.g., every few minutes) or 
continuously, with the excess flowing out.
    F. Data must be rejected if obtained using:
    1. Brine shrimp, because they usually only occur naturally in water 
with salinity greater than 35 g/kg.
    2. Species that do not have reproducing wild populations in North 
America.
    3. Organisms that were previously exposed to substantial 
concentrations of the test material or other contaminants.
    4. Saltwater species except for use in deriving acute-chronic 
ratios. An ACR is a standard measure of the acute toxicity of a material 
divided by an appropriate measure of the chronic toxicity of the same 
material under comparable conditions.
    G. Questionable data, data on formulated mixtures and emulsifiable 
concentrates, and data obtained with species non-resident to North 
America or previously exposed organisms may be used to provide auxiliary 
information but must not be used in the derivation of criteria.

                           III. Required Data

    A. Certain data should be available to help ensure that each of the 
major kinds of possible adverse effects receives adequate consideration. 
An adverse effect is a change in an organism that is harmful to the 
organism. Exposure means contact with a chemical or physical agent. 
Results of acute and chronic toxicity tests with representative species 
of aquatic animals are necessary so that data available for tested 
species can be considered a useful indication of the sensitivities of 
appropriate untested species. Fewer data concerning toxicity to aquatic 
plants are usually available because procedures for conducting tests 
with plants and interpreting the results of such tests are not as well 
developed.
    B. To derive a Great Lakes Tier I criterion for aquatic organisms 
and their uses, the following must be available:
    1. Results of acceptable acute (or chronic) tests (see section IV or 
VI of this appendix) with at least one species of freshwater animal in 
at least eight different families such that all of the following are 
included:
    a. The family Salmonidae in the class Osteichthyes;
    b. One other family (preferably a commercially or recreationally 
important, warmwater species) in the class Osteichthyes (e.g., bluegill, 
channel catfish);
    c. A third family in the phylum Chordata (e.g., fish, amphibian);
    d. A planktonic crustacean (e.g., a cladoceran, copepod);
    e. A benthic crustacean (e.g., ostracod, isopod, amphipod, 
crayfish);
    f. An insect (e.g., mayfly, dragonfly, damselfly, stonefly, 
caddisfly, mosquito, midge);
    g. A family in a phylum other than Arthropoda or Chordata (e.g., 
Rotifera, Annelida, Mollusca);
    h. A family in any order of insect or any phylum not already 
represented.
    2. Acute-chronic ratios (see section VI of this appendix) with at 
least one species of aquatic animal in at least three different families 
provided that of the three species:
    a. At least one is a fish;
    b. At least one is an invertebrate; and
    c. At least one species is an acutely sensitive freshwater species 
(the other two may be saltwater species).
    3. Results of at least one acceptable test with a freshwater algae 
or vascular plant is desirable but not required for criterion derivation 
(see section VIII of this appendix). If plants are among the aquatic 
organisms most sensitive to the material, results of a test with a plant 
in another phylum (division) should also be available.

[[Page 529]]

    C. If all required data are available, a numerical criterion can 
usually be derived except in special cases. For example, derivation of a 
chronic criterion might not be possible if the available ACRs vary by 
more than a factor of ten with no apparent pattern. Also, if a criterion 
is to be related to a water quality characteristic (see sections V and 
VII of this appendix), more data will be required.
    D. Confidence in a criterion usually increases as the amount of 
available pertinent information increases. Thus, additional data are 
usually desirable.

                          IV. Final Acute Value

    A. Appropriate measures of the acute (short-term) toxicity of the 
material to a variety of species of aquatic animals are used to 
calculate the Final Acute Value (FAV). The calculated Final Acute Value 
is a calculated estimate of the concentration of a test material such 
that 95 percent of the genera (with which acceptable acute toxicity 
tests have been conducted on the material) have higher Genus Mean Acute 
Values (GMAVs). An acute test is a comparative study in which organisms, 
that are subjected to different treatments, are observed for a short 
period usually not constituting a substantial portion of their life 
span. However, in some cases, the Species Mean Acute Value (SMAV) of a 
commercially or recreationally important species of the Great Lakes 
System is lower than the calculated FAV, then the SMAV replaces the 
calculated FAV in order to provide protection for that important 
species.
    B. Acute toxicity tests shall be conducted using acceptable 
procedures. For good examples of acceptable procedures see American 
Society for Testing and Materials (ASTM) Standard E 729, Guide for 
Conducting Acute Toxicity Tests with Fishes, Macroinvertebrates, and 
Amphibians.
    C. Except for results with saltwater annelids and mysids, results of 
acute tests during which the test organisms were fed should not be used, 
unless data indicate that the food did not affect the toxicity of the 
test material. (Note: If the minimum acute-chronic ratio data 
requirements (as described in section III.B.2 of this appendix) are not 
met with freshwater data alone, saltwater data may be used.)
    D. Results of acute tests conducted in unusual dilution water, e.g., 
dilution water in which total organic carbon or particulate matter 
exceeded five mg/L, should not be used, unless a relationship is 
developed between acute toxicity and organic carbon or particulate 
matter, or unless data show that organic carbon or particulate matter, 
etc., do not affect toxicity.
    E. Acute values must be based upon endpoints which reflect the total 
severe adverse impact of the test material on the organisms used in the 
test. Therefore, only the following kinds of data on acute toxicity to 
aquatic animals shall be used:
    1. Tests with daphnids and other cladocerans must be started with 
organisms less than 24 hours old and tests with midges must be started 
with second or third instar larvae. It is preferred that the results 
should be the 48-hour EC50 based on the total percentage of organisms 
killed and immobilized. If such an EC50 is not available for a test, the 
48-hour LC50 should be used in place of the desired 48-hour EC50. An 
EC50 or LC50 of longer than 48 hours can be used as long as the animals 
were not fed and the control animals were acceptable at the end of the 
test. An EC50 is a statistically or graphically estimated concentration 
that is expected to cause one or more specified effects in 50% of a 
group of organisms under specified conditions. An LC50 is a 
statistically or graphically estimated concentration that is expected to 
be lethal to 50% of a group of organisms under specified conditions.
    2. It is preferred that the results of a test with embryos and 
larvae of barnacles, bivalve molluscs (clams, mussels, oysters and 
scallops), sea urchins, lobsters, crabs, shrimp and abalones be the 96-
hour EC50 based on the percentage of organisms with incompletely 
developed shells plus the percentage of organisms killed. If such an 
EC50 is not available from a test, of the values that are available from 
the test, the lowest of the following should be used in place of the 
desired 96-hour EC50: 48- to 96-hour EC50s based on percentage of 
organisms with incompletely developed shells plus percentage of 
organisms killed, 48- to 96-hour EC50s based upon percentage of 
organisms with incompletely developed shells, and 48-hour to 96-hour 
LC50s. (Note: If the minimum acute-chronic ratio data requirements (as 
described in section III.B.2 of this appendix) are not met with 
freshwater data alone, saltwater data may be used.)
    3. It is preferred that the result of tests with all other aquatic 
animal species and older life stages of barnacles, bivalve molluscs 
(clams, mussels, oysters and scallops), sea urchins, lobsters, crabs, 
shrimp and abalones be the 96-hour EC50 based on percentage of organisms 
exhibiting loss of equilibrium plus percentage of organisms immobilized 
plus percentage of organisms killed. If such an EC50 is not available 
from a test, of the values that are available from a test the lower of 
the following should be used in place of the desired 96-hour EC50: the 
96-hour EC50 based on percentage of organisms exhibiting loss of 
equilibrium plus percentage of organisms immobilized and the 96-hour 
LC50.
    4. Tests whose results take into account the number of young 
produced, such as most tests with protozoans, are not considered

[[Page 530]]

acute tests, even if the duration was 96 hours or less.
    5. If the tests were conducted properly, acute values reported as 
``greater than'' values and those which are above the solubility of the 
test material should be used, because rejection of such acute values 
would bias the Final Acute Value by eliminating acute values for 
resistant species.
    F. If the acute toxicity of the material to aquatic animals has been 
shown to be related to a water quality characteristic such as hardness 
or particulate matter for freshwater animals, refer to section V of this 
appendix.
    G. The agreement of the data within and between species must be 
considered. Acute values that appear to be questionable in comparison 
with other acute and chronic data for the same species and for other 
species in the same genus must not be used. For example, if the acute 
values available for a species or genus differ by more than a factor of 
10, rejection of some or all of the values would be appropriate, absent 
countervailing circumstances.
    H. If the available data indicate that one or more life stages are 
at least a factor of two more resistant than one or more other life 
stages of the same species, the data for the more resistant life stages 
must not be used in the calculation of the SMAV because a species cannot 
be considered protected from acute toxicity if all of the life stages 
are not protected.
    I. For each species for which at least one acute value is available, 
the SMAV shall be calculated as the geometric mean of the results of all 
acceptable flow-through acute toxicity tests in which the concentrations 
of test material were measured with the most sensitive tested life stage 
of the species. For a species for which no such result is available, the 
SMAV shall be calculated as the geometric mean of all acceptable acute 
toxicity tests with the most sensitive tested life stage, i.e., results 
of flow-through tests in which the concentrations were not measured and 
results of static and renewal tests based on initial concentrations 
(nominal concentrations are acceptable for most test materials if 
measured concentrations are not available) of test material. A renewal 
test is a test with aquatic organisms in which either the test solution 
in a test chamber is removed and replaced at least once during the test 
or the test organisms are transferred into a new test solution of the 
same composition at least once during the test. A static test is a test 
with aquatic organisms in which the solution and organisms that are in a 
test chamber at the beginning of the test remain in the chamber until 
the end of the test, except for removal of dead test organisms.

    Note 1: Data reported by original investigators must not be rounded 
off. Results of all intermediate calculations must not be rounded off to 
fewer than four significant digits.
    Note 2: The geometric mean of N numbers is the Nth root of the 
product of the N numbers. Alternatively, the geometric mean can be 
calculated by adding the logarithms of the N numbers, dividing the sum 
by N, and taking the antilog of the quotient. The geometric mean of two 
numbers is the square root of the product of the two numbers, and the 
geometric mean of one number is that number. Either natural (base e) or 
common (base 10) logarithms can be used to calculate geometric means as 
long as they are used consistently within each set of data, i.e., the 
antilog used must match the logarithms used.
    Note 3: Geometric means, rather than arithmetic means, are used here 
because the distributions of sensitivities of individual organisms in 
toxicity tests on most materials and the distributions of sensitivities 
of species within a genus are more likely to be lognormal than normal. 
Similarly, geometric means are used for ACRs because quotients are 
likely to be closer to lognormal than normal distributions. In addition, 
division of the geometric mean of a set of numerators by the geometric 
mean of the set of denominators will result in the geometric mean of the 
set of corresponding quotients.

    J. For each genus for which one or more SMAVs are available, the 
GMAV shall be calculated as the geometric mean of the SMAVs available 
for the genus.
    K. Order the GMAVs from high to low.
    L. Assign ranks, R, to the GMAVs from ``1'' for the lowest to ``N'' 
for the highest. If two or more GMAVs are identical, assign them 
successive ranks.
    M. Calculate the cumulative probability, P, for each GMAV as R/
(N+1).
    N. Select the four GMAVs which have cumulative probabilities closest 
to 0.05 (if there are fewer than 59 GMAVs, these will always be the four 
lowest GMAVs).
    O. Using the four selected GMAVs, and Ps, calculate

[[Page 531]]

[GRAPHIC] [TIFF OMITTED] TR23MR95.104

    Note: Natural logarithms (logarithms to base e, denoted as ln) are 
used herein merely because they are easier to use on some hand 
calculators and computers than common (base 10) logarithms. Consistent 
use of either will produce the same result.
    P. If for a commercially or recreationally important species of the 
Great Lakes System the geometric mean of the acute values from flow-
through tests in which the concentrations of test material were measured 
is lower than the calculated Final Acute Value (FAV), then that 
geometric mean must be used as the FAV instead of the calculated FAV.
    Q. See section VI of this appendix.

                         V. Final Acute Equation

    A. When enough data are available to show that acute toxicity to two 
or more species is similarly related to a water quality characteristic, 
the relationship shall be taken into account as described in sections 
V.B through V.G of this appendix or using analysis of covariance. The 
two methods are equivalent and produce identical results. The manual 
method described below provides an understanding of this application of 
covariance analysis, but computerized versions of covariance analysis 
are much more convenient for analyzing large data sets. If two or more 
factors affect toxicity, multiple regression analysis shall be used.
    B. For each species for which comparable acute toxicity values are 
available at two or more different values of the water quality 
characteristic, perform a least squares regression of the acute toxicity 
values on the corresponding values of the water quality characteristic 
to obtain the slope and its 95 percent confidence limits for each 
species.
    Note: Because the best documented relationship is that between 
hardness and acute toxicity of metals in fresh water and a log-log 
relationship fits these data, geometric means and natural logarithms of 
both toxicity and water quality are used in the rest of this section. 
For relationships based on other water quality characteristics, such as 
Ph, temperature, no transformation or a different transformation might 
fit the data better, and appropriate changes will be necessary 
throughout this section.
    C. Decide whether the data for each species are relevant, taking 
into account the range and number of the tested values of the water 
quality characteristic and the degree of agreement within and between 
species. For example, a slope based on six data points might be of 
limited value if it is based only on data for a very narrow range of 
values of the water quality characteristic. A slope based on only two 
data points, however, might be useful if it is consistent with other 
information and if the two points cover a broad enough range of the 
water quality characteristic. In addition, acute values that appear to 
be questionable in comparison with other acute and chronic data 
available for the same species and for other species in the same genus 
should not be used. For example, if after adjustment for the water 
quality characteristic, the acute values available for a species or 
genus differ by more than a factor of 10, rejection of some or all of 
the values would be appropriate, absent countervailing justification. If 
useful slopes are not available for at least one fish and one 
invertebrate or if the available slopes are too dissimilar or if too few 
data are available to adequately define the relationship between acute 
toxicity and the

[[Page 532]]

water quality characteristic, return to section IV.G of this appendix, 
using the results of tests conducted under conditions and in waters 
similar to those commonly used for toxicity tests with the species.
    D. For each species, calculate the geometric mean of the available 
acute values and then divide each of the acute values for the species by 
the geometric mean for the species. This normalizes the acute values so 
that the geometric mean of the normalized values for each species 
individually and for any combination of species is 1.0.
    E. Similarly normalize the values of the water quality 
characteristic for each species individually using the same procedure as 
above.
    F. Individually for each species perform a least squares regression 
of the normalized acute values of the water quality characteristic. The 
resulting slopes and 95 percent confidence limits will be identical to 
those obtained in section V.B. of this appendix. If, however, the data 
are actually plotted, the line of best fit for each individual species 
will go through the point 1,1 in the center of the graph.
    G. Treat all of the normalized data as if they were all for the same 
species and perform a least squares regression of all of the normalized 
acute values on the corresponding normalized values of the water quality 
characteristic to obtain the pooled acute slope, V, and its 95 percent 
confidence limits. If all of the normalized data are actually plotted, 
the line of best fit will go through the point 1,1 in the center of the 
graph.
    H. For each species calculate the geometric mean, W, of the acute 
toxicity values and the geometric mean, X, of the values of the water 
quality characteristic. (These were calculated in sections V.D and V.E 
of this appendix).
    I. For each species, calculate the logarithm, Y, of the SMAV at a 
selected value, Z, of the water quality characteristic using the 
equation:

Y=ln W-V(ln X-ln Z)

    J. For each species calculate the SMAV at X using the equation:

SMAV=e\Y\
    Note: Alternatively, the SMAVs at Z can be obtained by skipping step 
H above, using the equations in steps I and J to adjust each acute value 
individually to Z, and then calculating the geometric mean of the 
adjusted values for each species individually. This alternative 
procedure allows an examination of the range of the adjusted acute 
values for each species.
    K. Obtain the FAV at Z by using the procedure described in sections 
IV.J through IV.O of this appendix.
    L. If, for a commercially or recreationally important species of the 
Great Lakes System the geometric mean of the acute values at Z from 
flow-through tests in which the concentrations of the test material were 
measured is lower than the FAV at Z, then the geometric mean must be 
used as the FAV instead of the FAV.
    M. The Final Acute Equation is written as:

FAV=e\(V[ln(waterqualitycharacteristic)]=A-V[lnZ])\,

    where:
V=pooled acute slope, and A=ln(FAV at Z).

    Because V, A, and Z are known, the FAV can be calculated for any 
selected value of the water quality characteristic.

                         VI. Final Chronic Value

    A. Depending on the data that are available concerning chronic 
toxicity to aquatic animals, the Final Chronic Value (FCV) can be 
calculated in the same manner as the FAV or by dividing the FAV by the 
Final Acute-Chronic Ratio (FACR). In some cases, it might not be 
possible to calculate a FCV. The FCV is (a) a calculated estimate of the 
concentration of a test material such that 95 percent of the genera 
(with which acceptable chronic toxicity tests have been conducted on the 
material) have higher GMCVs, or (b) the quotient of an FAV divided by an 
appropriate ACR, or (c) the SMCV of an important and/or critical 
species, if the SMCV is lower than the calculated estimate or the 
quotient, whichever is applicable.
    Note: As the name implies, the ACR is a way of relating acute and 
chronic toxicities.
    B. Chronic values shall be based on results of flow-through (except 
renewal is acceptable for daphnids) chronic tests in which the 
concentrations of test material in the test solutions were properly 
measured at appropriate times during the test. A chronic test is a 
comparative study in which organisms, that are subjected to different 
treatments, are observed for a long period or a substantial portion of 
their life span.
    C. Results of chronic tests in which survival, growth, or 
reproduction in the control treatment was unacceptably low shall not be 
used. The limits of acceptability will depend on the species.
    D. Results of chronic tests conducted in unusual dilution water, 
e.g., dilution water in which total organic carbon or particulate matter 
exceeded five mg/L, should not be

[[Page 533]]

used, unless a relationship is developed between chronic toxicity and 
organic carbon or particulate matter, or unless data show that organic 
carbon, particulate matter, etc., do not affect toxicity.
    E. Chronic values must be based on endpoints and lengths of exposure 
appropriate to the species. Therefore, only results of the following 
kinds of chronic toxicity tests shall be used:
    1. Life-cycle toxicity tests consisting of exposures of each of two 
or more groups of individuals of a species to a different concentration 
of the test material throughout a life cycle. To ensure that all life 
stages and life processes are exposed, tests with fish should begin with 
embryos or newly hatched young less than 48 hours old, continue through 
maturation and reproduction, and should end not less than 24 days (90 
days for salmonids) after the hatching of the next generation. Tests 
with daphnids should begin with young less than 24 hours old and last 
for not less than 21 days, and for ceriodaphnids not less than seven 
days. For good examples of acceptable procedures see American Society 
for Testing and Materials (ASTM) Standard E 1193 Guide for conducting 
renewal life-cycle toxicity tests with Daphnia magna and ASTM Standard E 
1295 Guide for conducting three-brood, renewal toxicity tests with 
Ceriodaphnia dubia. Tests with mysids should begin with young less than 
24 hours old and continue until seven days past the median time of first 
brood release in the controls. For fish, data should be obtained and 
analyzed on survival and growth of adults and young, maturation of males 
and females, eggs spawned per female, embryo viability (salmonids only), 
and hatchability. For daphnids, data should be obtained and analyzed on 
survival and young per female. For mysids, data should be obtained and 
analyzed on survival, growth, and young per female.
    2. Partial life-cycle toxicity tests consist of exposures of each of 
two more groups of individuals of a species of fish to a different 
concentration of the test material through most portions of a life 
cycle. Partial life-cycle tests are allowed with fish species that 
require more than a year to reach sexual maturity, so that all major 
life stages can be exposed to the test material in less than 15 months. 
A life-cycle test is a comparative study in which organisms, that are 
subjected to different treatments, are observed at least from a life 
stage in one generation to the same life-stage in the next generation. 
Exposure to the test material should begin with immature juveniles at 
least two months prior to active gonad development, continue through 
maturation and reproduction, and end not less than 24 days (90 days for 
salmonids) after the hatching of the next generation. Data should be 
obtained and analyzed on survival and growth of adults and young, 
maturation of males and females, eggs spawned per female, embryo 
viability (salmonids only), and hatchability.
    3. Early life-stage toxicity tests consisting of 28- to 32-day (60 
days post hatch for salmonids) exposures of the early life stages of a 
species of fish from shortly after fertilization through embryonic, 
larval, and early juvenile development. Data should be obtained and 
analyzed on survival and growth.
    Note: Results of an early life-stage test are used as predictions of 
results of life-cycle and partial life-cycle tests with the same 
species. Therefore, when results of a life-cycle or partial life-cycle 
test are available, results of an early life-stage test with the same 
species should not be used. Also, results of early life-stage tests in 
which the incidence of mortalities or abnormalities increased 
substantially near the end of the test shall not be used because the 
results of such tests are possibly not good predictions of comparable 
life-cycle or partial life-cycle tests.
    F. A chronic value may be obtained by calculating the geometric mean 
of the lower and upper chronic limits from a chronic test or by 
analyzing chronic data using regression analysis.
    1. A lower chronic limit is the highest tested concentration:
    a. In an acceptable chronic test;
    b. Which did not cause an unacceptable amount of adverse effect on 
any of the specified biological measurements; and
    c. Below which no tested concentration caused an unacceptable 
effect.
    2. An upper chronic limit is the lowest tested concentration:
    a. In an acceptable chronic test;
    b. Which did cause an unacceptable amount of adverse effect on one 
or more of the specified biological measurements; and,
    c. Above which all tested concentrations also caused such an effect.
    Note: Because various authors have used a variety of terms and 
definitions to interpret and report results of chronic tests, reported 
results should be reviewed carefully. The amount of effect that is 
considered unacceptable is often based on a statistical hypothesis test, 
but might also be defined in terms of a specified percent reduction from 
the controls. A small percent reduction (e.g., three percent) might be 
considered acceptable even if it is statistically significantly 
different from the control, whereas a large percent reduction (e.g., 30 
percent) might be considered unacceptable even if it is not 
statistically significant.
    G. If the chronic toxicity of the material to aquatic animals has 
been shown to be related to a water quality characteristic such as 
hardness or particulate matter for freshwater animals, refer to section 
VII of this appendix.

[[Page 534]]

    H. If chronic values are available for species in eight families as 
described in section III.B.1 of this appendix, a SMCV shall be 
calculated for each species for which at least one chronic value is 
available by calculating the geometric mean of the results of all 
acceptable life-cycle and partial life-cycle toxicity tests with the 
species; for a species of fish for which no such result is available, 
the SMCV is the geometric mean of all acceptable early life-stage tests. 
Appropriate GMCVs shall also be calculated. A GMCV is the geometric mean 
of the SMCVs for the genus. The FCV shall be obtained using the 
procedure described in sections IV.J through IV.O of this appendix, 
substituting SMCV and GMCV for SMAV and GMAV respectively. See section 
VI.M of this appendix.
    Note: Section VI.I through VI.L are for use when chronic values are 
not available for species in eight taxonomic families as described in 
section III.B.1 of this appendix.
    I. For each chronic value for which at least one corresponding 
appropriate acute value is available, calculate an ACR, using for the 
numerator the geometric mean of the results of all acceptable flow-
through (except static is acceptable for daphnids and midges) acute 
tests in the same dilution water in which the concentrations are 
measured. For fish, the acute test(s) should be conducted with 
juveniles. The acute test(s) should be part of the same study as the 
chronic test. If acute tests were not conducted as part of the same 
study, but were conducted as part of a different study in the same 
laboratory and dilution water, then they may be used. If no such acute 
tests are available, results of acute tests conducted in the same 
dilution water in a different laboratory may be used. If no such acute 
tests are available, an ACR shall not be calculated.
    J. For each species, calculate the SMACR as the geometric mean of 
all ACRs available for that species. If the minimum ACR data 
requirements (as described in section III.B.2 of this appendix) are not 
met with freshwater data alone, saltwater data may be used along with 
the freshwater data.
    K. For some materials, the ACR seems to be the same for all species, 
but for other materials the ratio seems to increase or decrease as the 
SMAV increases. Thus the FACR can be obtained in three ways, depending 
on the data available:
    1. If the species mean ACR seems to increase or decrease as the 
SMAVs increase, the FACR shall be calculated as the geometric mean of 
the ACRs for species whose SMAVs are close to the FAV.
    2. If no major trend is apparent and the ACRs for all species are 
within a factor of ten, the FACR shall be calculated as the geometric 
mean of all of the SMACRs.
    3. If the most appropriate SMACRs are less than 2.0, and especially 
if they are less than 1.0, acclimation has probably occurred during the 
chronic test. In this situation, because continuous exposure and 
acclimation cannot be assured to provide adequate protection in field 
situations, the FACR should be assumed to be two, so that the FCV is 
equal to the Criterion Maximum Concentration (CMC). (See section X.B of 
this appendix.)
    If the available SMACRs do not fit one of these cases, a FACR may 
not be obtained and a Tier I FCV probably cannot be calculated.
    L. Calculate the FCV by dividing the FAV by the FACR.
    FCV=FAV/FACR
If there is a Final Acute Equation rather than a FAV, see also section V 
of this appendix.
    M. If the SMCV of a commercially or recreationally important species 
of the Great Lakes System is lower than the calculated FCV, then that 
SMCV must be used as the FCV instead of the calculated FCV.
    N. See section VIII of this appendix.

                       VII. Final Chronic Equation

    A. A Final Chronic Equation can be derived in two ways. The 
procedure described in section VII.A of this appendix will result in the 
chronic slope being the same as the acute slope. The procedure described 
in sections VII.B through N of this appendix will usually result in the 
chronic slope being different from the acute slope.
    1. If ACRs are available for enough species at enough values of the 
water quality characteristic to indicate that the ACR appears to be the 
same for all species and appears to be independent of the water quality 
characteristic, calculate the FACR as the geometric mean of the 
available SMACRs.
    2. Calculate the FCV at the selected value Z of the water quality 
characteristic by dividing the FAV at Z (see section V.M of this 
appendix) by the FACR.
    3. Use V=pooled acute slope (see section V.M of this appendix), and
    L=pooled chronic slope.
    4. See section VII.M of this appendix.
    B. When enough data are available to show that chronic toxicity to 
at least one species is related to a water quality characteristic, the 
relationship should be taken into account as described in sections C 
through G below or using analysis of covariance. The two methods are 
equivalent and produce identical results. The manual method described 
below provides an understanding of this application of covariance 
analysis, but computerized versions of covariance analysis are much more 
convenient for analyzing large data sets. If two or more factors affect 
toxicity, multiple regression analysis shall be used.
    C. For each species for which comparable chronic toxicity values are 
available at two or more different values of the water quality

[[Page 535]]

characteristic, perform a least squares regression of the chronic 
toxicity values on the corresponding values of the water quality 
characteristic to obtain the slope and its 95 percent confidence limits 
for each species.
    Note: Because the best documented relationship is that between 
hardness and acute toxicity of metals in fresh water and a log-log 
relationship fits these data, geometric means and natural logarithms of 
both toxicity and water quality are used in the rest of this section. 
For relationships based on other water quality characteristics, such as 
Ph, temperature, no transformation or a different transformation might 
fit the data better, and appropriate changes will be necessary 
throughout this section. It is probably preferable, but not necessary, 
to use the same transformation that was used with the acute values in 
section V of this appendix.
    D. Decide whether the data for each species are relevant, taking 
into account the range and number of the tested values of the water 
quality characteristic and the degree of agreement within and between 
species. For example, a slope based on six data points might be of 
limited value if it is based only on data for a very narrow range of 
values of the water quality characteristic. A slope based on only two 
data points, however, might be more useful if it is consistent with 
other information and if the two points cover a broad range of the water 
quality characteristic. In addition, chronic values that appear to be 
questionable in comparison with other acute and chronic data available 
for the same species and for other species in the same genus in most 
cases should not be used. For example, if after adjustment for the water 
quality characteristic, the chronic values available for a species or 
genus differ by more than a factor of 10, rejection of some or all of 
the values is, in most cases, absent countervailing circumstances, 
appropriate. If a useful chronic slope is not available for at least one 
species or if the available slopes are too dissimilar or if too few data 
are available to adequately define the relationship between chronic 
toxicity and the water quality characteristic, it might be appropriate 
to assume that the chronic slope is the same as the acute slope, which 
is equivalent to assuming that the ACR is independent of the water 
quality characteristic. Alternatively, return to section VI.H of this 
appendix, using the results of tests conducted under conditions and in 
waters similar to those commonly used for toxicity tests with the 
species.
    E. Individually for each species, calculate the geometric mean of 
the available chronic values and then divide each chronic value for a 
species by the mean for the species. This normalizes the chronic values 
so that the geometric mean of the normalized values for each species 
individually, and for any combination of species, is 1.0.
    F. Similarly, normalize the values of the water quality 
characteristic for each species individually.
    G. Individually for each species, perform a least squares regression 
of the normalized chronic toxicity values on the corresponding 
normalized values of the water quality characteristic. The resulting 
slopes and the 95 percent confidence limits will be identical to those 
obtained in section VII.B of this appendix. Now, however, if the data 
are actually plotted, the line of best fit for each individual species 
will go through the point 1,1 in the center of the graph.
    H. Treat all of the normalized data as if they were all the same 
species and perform a least squares regression of all of the normalized 
chronic values on the corresponding normalized values of the water 
quality characteristic to obtain the pooled chronic slope, L, and its 95 
percent confidence limits.
    If all normalized data are actually plotted, the line of best fit 
will go through the point 1,1 in the center of the graph.
    I. For each species, calculate the geometric mean, M, of the 
toxicity values and the geometric mean, P, of the values of the water 
quality characteristic. (These are calculated in sections VII.E and F of 
this appendix.)
    J. For each species, calculate the logarithm, Q, of the SMCV at a 
selected value, Z, of the water quality characteristic using the 
equation:

Q=ln M--L(ln P-ln Z)
    Note: Although it is not necessary, it is recommended that the same 
value of the water quality characteristic be used here as was used in 
section V of this appendix.
    K. For each species, calculate a SMCV at Z using the equation:

SMCV=e\Q\
    Note: Alternatively, the SMCV at Z can be obtained by skipping 
section VII.J of this appendix, using the equations in sections VII.J 
and K of this appendix to adjust each chronic value individually to Z, 
and then calculating the geometric means of the adjusted values for each 
species individually. This alternative procedure allows an examination 
of the range of the adjusted chronic values for each species.
    L. Obtain the FCV at Z by using the procedure described in sections 
IV.J through O of this appendix.
    M. If the SMCV at Z of a commercially or recreationally important 
species of the Great Lakes System is lower than the calculated FCV at Z, 
then that SMCV shall be used as the FCV at Z instead of the calculated 
FCV.
    N. The Final Chronic Equation is written as:

FCV=e(L&[ln(waterqualitycharacteristic)]=lnS-L[lnZ])

Where:

L=pooled chronic slope and S = FCV at Z.


[[Page 536]]


    Because L, S, and Z are known, the FCV can be calculated for any 
selected value of the water quality characteristic.

                         VIII. Final Plant Value

    A. A Final Plant Value (FPV) is the lowest plant value that was 
obtained with an important aquatic plant species in an acceptable 
toxicity test for which the concentrations of the test material were 
measured and the adverse effect was biologically important. Appropriate 
measures of the toxicity of the material to aquatic plants are used to 
compare the relative sensitivities of aquatic plants and animals. 
Although procedures for conducting and interpreting the results of 
toxicity tests with plants are not well-developed, results of tests with 
plants usually indicate that criteria which adequately protect aquatic 
animals and their uses will, in most cases, also protect aquatic plants 
and their uses.
    B. A plant value is the result of a 96-hour test conducted with an 
alga or a chronic test conducted with an aquatic vascular plant.
    Note: A test of the toxicity of a metal to a plant shall not be used 
if the medium contained an excessive amount of a complexing agent, such 
as EDTA, that might affect the toxicity of the metal. Concentrations of 
EDTA above 200 [micro]g/L should be considered excessive.
    C. The FPV shall be obtained by selecting the lowest result from a 
test with an important aquatic plant species in which the concentrations 
of test material are measured and the endpoint is biologically 
important.

                             IX. Other Data

    Pertinent information that could not be used in earlier sections 
might be available concerning adverse effects on aquatic organisms. The 
most important of these are data on cumulative and delayed toxicity, 
reduction in survival, growth, or reproduction, or any other adverse 
effect that has been shown to be biologically important. Delayed 
toxicity is an adverse effect to an organism that results from, and 
occurs after the end of, its exposure to one or more test materials. 
Especially important are data for species for which no other data are 
available. Data from behavioral, biochemical, physiological, microcosm, 
and field studies might also be available. Data might be available from 
tests conducted in unusual dilution water (see sections IV.D and VI.D of 
this appendix), from chronic tests in which the concentrations were not 
measured (see section VI.B of this appendix), from tests with previously 
exposed organisms (see section II.F.3 of this appendix), and from tests 
on formulated mixtures or emulsifiable concentrates (see section II.D of 
this appendix). Such data might affect a criterion if the data were 
obtained with an important species, the test concentrations were 
measured, and the endpoint was biologically important.

                              X. Criterion

    A. A criterion consists of two concentrations: the CMC and the 
Criterion Continuous Concentration (CCC).
    B. The CMC is equal to one-half the FAV. The CMC is an estimate of 
the highest concentration of a material in the water column to which an 
aquatic community can be exposed briefly without resulting in an 
unacceptable effect.
    C. The CCC is equal to the lowest of the FCV or the FPV (if 
available) unless other data (see section IX of this appendix) show that 
a lower value should be used. The CCC is an estimate of the highest 
concentration of a material in the water column to which an aquatic 
community can be exposed indefinitely without resulting in an 
unacceptable effect. If toxicity is related to a water quality 
characteristic, the CCC is obtained from the Final Chronic Equation or 
FPV (if available) that results in the lowest concentrations in the 
usual range of the water quality characteristic, unless other data (see 
section IX) show that a lower value should be used.
    D. Round both the CMC and the CCC to two significant digits.
    E. The criterion is stated as:
    The procedures described in the Tier I methodology indicate that, 
except possibly where a commercially or recreationally important species 
is very sensitive, aquatic organisms should not be affected unacceptably 
if the four-day average concentration of (1) does not exceed (2) 
[micro]g/L more than once every three years on the average and if the 
one-hour average concentration does not exceed (3) [micro]g/L more than 
once every three years on the average.
Where:

(1) = insert name of material
(2) = insert the CCC
(3) = insert the CMC

    If the CMC averaging period of one hour or the CCC averaging period 
of four days is inappropriate for the pollutant, or if the once-in-
three-year allowable excursion frequency is inappropriate for the 
pollutant or for the sites to which a criterion is applied, then the 
State may specify alternative averaging periods or frequencies. The 
choice of an alternative averaging period or frequency shall be 
justified by a scientifically defensible analysis demonstrating that the 
alternative values will protect the aquatic life uses of the water. 
Appropriate laboratory data and/or well-designed field biological 
surveys shall be submitted to EPA as justification for differing 
averaging periods and/or frequencies of exceedance.

[[Page 537]]

                            XI. Final Review

    A. The derivation of the criterion should be carefully reviewed by 
rechecking each step of the Guidance in this part. Items that should be 
especially checked are:
    1. If unpublished data are used, are they well documented?
    2. Are all required data available?
    3. Is the range of acute values for any species greater than a 
factor of 10?
    4. Is the range of SMAVs for any genus greater than a factor of 10?
    5. Is there more than a factor of 10 difference between the four 
lowest GMAVs?
    6. Are any of the lowest GMAVs questionable?
    7. Is the FAV reasonable in comparison with the SMAVs and GMAVs?
    8. For any commercially or recreationally important species of the 
Great Lakes System, is the geometric mean of the acute values from flow-
through tests in which the concentrations of test material were measured 
lower than the FAV?
    9. Are any of the chronic values used questionable?
    10. Are any chronic values available for acutely sensitive species?
    11. Is the range of acute-chronic ratios greater than a factor of 
10?
    12. Is the FCV reasonable in comparison with the available acute and 
chronic data?
    13. Is the measured or predicted chronic value for any commercially 
or recreationally important species of the Great Lakes System below the 
FCV?
    14. Are any of the other data important?
    15. Do any data look like they might be outliers?
    16. Are there any deviations from the Guidance in this part? Are 
they acceptable?
    B. On the basis of all available pertinent laboratory and field 
information, determine if the criterion is consistent with sound 
scientific evidence. If it is not, another criterion, either higher or 
lower, shall be derived consistent with the Guidance in this part.

          Methodology for Deriving Aquatic Life Values: Tier II

                       XII. Secondary Acute Value

    If all eight minimum data requirements for calculating an FAV using 
Tier I are not met, a Secondary Acute Value (SAV) for the waters of the 
Great Lakes System shall be calculated for a chemical as follows:
    To calculate a SAV, the lowest GMAV in the database is divided by 
the Secondary Acute Factor (SAF) (Table A-1 of this appendix) 
corresponding to the number of satisfied minimum data requirements 
listed in the Tier I methodology (section III.B.1 of this appendix). 
(Requirements for definitions, data collection and data review, 
contained in sections I, II, and IV shall be applied to calculation of a 
SAV.) If all eight minimum data requirements are satisfied, a Tier I 
criterion calculation may be possible. In order to calculate a SAV, the 
database must contain, at a minimum, a genus mean acute value (GMAV) for 
one of the following three genera in the family Daphnidae--Ceriodaphnia 
sp., Daphnia sp., or Simocephalus sp.
    If appropriate, the SAV shall be made a function of a water quality 
characteristic in a manner similar to that described in Tier I.

                   XIII. Secondary Acute-Chronic Ratio

    If three or more experimentally determined ACRs, meeting the data 
collection and review requirements of Section VI of this appendix, are 
available for the chemical, determine the FACR using the procedure 
described in Section VI. If fewer than three acceptable experimentally 
determined ACRs are available, use enough assumed ACRs of 18 so that the 
total number of ACRs equals three. Calculate the Secondary Acute-Chronic 
Ratio (SACR) as the geometric mean of the three ACRs. Thus, if no 
experimentally determined ACRs are available, the SACR is 18.

                      XIV. Secondary Chronic Value

    Calculate the Secondary Chronic Value (SCV) using one of the 
following:
[GRAPHIC] [TIFF OMITTED] TR23MR95.099

    If appropriate, the SCV will be made a function of a water quality 
characteristic in a manner similar to that described in Tier I.

          XV. Commercially or Recreationally Important Species

    If for a commercially or recreationally important species of the 
Great Lakes System the geometric mean of the acute values or chronic 
values from flow-through tests in which the concentrations of the test 
materials were measured is lower than the calculated SAV or SCV, then 
that geometric mean must be used as the SAV or SCV instead of the 
calculated SAV or SCV.

[[Page 538]]

                           XVI. Tier II Value

    A. A Tier II value shall consist of two concentrations: the 
Secondary Maximum Concentration (SMC) and the Secondary Continuous 
Concentration (SCC).
    B. The SMC is equal to one-half of the SAV.
    C. The SCC is equal to the lowest of the SCV or the Final Plant 
Value, if available, unless other data (see section IX of this appendix) 
show that a lower value should be used.
    If toxicity is related to a water quality characteristic, the SCC is 
obtained from the Secondary Chronic Equation or FPV, if available, that 
results in the lowest concentrations in the usual range of the water 
quality characteristic, unless other data (See section IX of this 
appendix) show that a lower value should be used.
    D. Round both the SMC and the SCC to two significant digits.
    E. The Tier II value is stated as:
    The procedures described in the Tier II methodology indicate that, 
except possibly where a locally important species is very sensitive, 
aquatic organisms should not be affected unacceptably if the four-day 
average concentration of (1) does not exceed (2) [micro]g/L more than 
once every three years on the average and if the one-hour average 
concentration does not exceed (3) [micro]g/L more than once every three 
years on the average.

Where:

(1) = insert name of material
(2) = insert the SCC
(3) = insert the SMC

    As discussed above, States and Tribes have the discretion to specify 
alternative averaging periods or frequencies (see section X.E. of this 
appendix).

                     XVII. Appropriate Modifications

    On the basis of all available pertinent laboratory and field 
information, determine if the Tier II value is consistent with sound 
scientific evidence. If it is not, another value, either higher or 
lower, shall be derived consistent with the Guidance in this part.

                   Table A-1--Secondary Acute Factors
------------------------------------------------------------------------
                                                              Adjustment
        Number of minimum data requirements satisfied           factor
------------------------------------------------------------------------
1...........................................................        21.9
2...........................................................        13.0
3...........................................................         8.0
4...........................................................         7.0
5...........................................................         6.1
6...........................................................         5.2
7...........................................................         4.3
------------------------------------------------------------------------



    Sec. Appendix B to Part 132--Great Lakes Water Quality Initiative

            Methodology for Deriving Bioaccumulation Factors

    Great Lakes States and Tribes shall adopt provisions consistent with 
(as protective as) this appendix.

                             I. Introduction

    A. The purpose of this methodology is to describe procedures for 
deriving bioaccumulation factors (BAFs) to be used in the calculation of 
Great Lakes Water Quality Guidance (Guidance) human health Tier I 
criteria and Tier II values and wildlife Tier I criteria. A subset of 
the human health BAFs are also used to identify the chemicals that are 
considered bioaccumulative chemicals of concern (BCCs).
    B. Bioaccumulation reflects uptake of a substance by aquatic 
organisms exposed to the substance through all routes (i.e., ambient 
water and food), as would occur in nature. Bioconcentration reflects 
uptake of a substance by aquatic organisms exposed to the substance only 
through the ambient water. Both BAFs and bioconcentration factors (BCFs) 
are proportionality constants that describe the relationship between the 
concentration of a substance in aquatic organisms and its concentration 
in the ambient water. For the Guidance in this part, BAFs, rather than 
BCFs, are used to calculate Tier I criteria for human health and 
wildlife and Tier II values for human health because they better account 
for the total exposure of aquatic organisms to chemicals.
    C. For organic chemicals, baseline BAFs can be derived using four 
methods. Measured baseline BAFs are derived from field-measured BAFs; 
predicted baseline BAFs are derived using biota-sediment accumulation 
factors (BSAFs) or are derived by multiplying a laboratory-measured or 
predicted BCF by a food-chain multiplier (FCM). The lipid content of the 
aquatic organisms is used to account for partitioning of organic 
chemicals within organisms so that data from different tissues and 
species can be integrated. In addition, the baseline BAF is based on the 
concentration of freely dissolved organic chemicals in the ambient water 
to facilitate extrapolation from one water to another.
    D. For inorganic chemicals, baseline BAFs can be derived using two 
of the four methods. Baseline BAFs are derived using either field-
measured BAFs or by multiplying laboratory-measured BCFs by a FCM. For 
inorganic chemicals, BAFs are assumed to equal BCFs (i.e., the FCM is 
1.0), unless chemical-specific biomagnification data support using a FCM 
other than 1.0.
    E. Because both humans and wildlife consume fish from both trophic 
levels 3 and 4,

[[Page 539]]

two baseline BAFs are needed to calculate either a human health 
criterion or value or a wildlife criterion for a chemical. When 
appropriate, ingestion through consumption of invertebrates, plants, 
mammals, and birds in the diet of wildlife species to be protected may 
be taken into account.

                             II. Definitions

    Baseline BAF. For organic chemicals, a BAF that is based on the 
concentration of freely dissolved chemical in the ambient water and 
takes into account the partitioning of the chemical within the organism; 
for inorganic chemicals, a BAF that is based on the wet weight of the 
tissue.
    Baseline BCF. For organic chemicals, a BCF that is based on the 
concentration of freely dissolved chemical in the ambient water and 
takes into account the partitioning of the chemical within the organism; 
for inorganic chemicals, a BCF that is based on the wet weight of the 
tissue.
    Bioaccumulation. The net accumulation of a substance by an organism 
as a result of uptake from all environmental sources.
    Bioaccumulation factor (BAF). The ratio (in L/kg) of a substance's 
concentration in tissue of an aquatic organism to its concentration in 
the ambient water, in situations where both the organism and its food 
are exposed to and the ratio does not change substantially over time.
    Bioconcentration. The net accumulation of a substance by an aquatic 
organism as a result of uptake directly from the ambient water through 
gill membranes or other external body surfaces.
    Bioconcentration factor (BCF). The ratio (in L/kg) of a substance's 
concentration in tissue of an aquatic organism to its concentration in 
the ambient water, in situations where the organism is exposed through 
the water only and the ratio does not change substantially over time.
    Biota-sediment accumulation factor (BSAF). The ratio (in kg of 
organic carbon/kg of lipid) of a substance's lipid-normalized 
concentration in tissue of an aquatic organism to its organic carbon-
normalized concentration in surface sediment, in situations where the 
ratio does not change substantially over time, both the organism and its 
food are exposed, and the surface sediment is representative of average 
surface sediment in the vicinity of the organism.
    Depuration. The loss of a substance from an organism as a result of 
any active or passive process.
    Food-chain multiplier (FCM). The ratio of a BAF to an appropriate 
BCF.
    Octanol-water partition coefficient (KOW). The ration of 
the concentration of a substance in the n-octanol phase to its 
concentration in the aqueous phase in an equilibrated two-phase octanol-
water system. For log KOW, the log of the octanol-water 
partition coefficient is a base 10 logarithm.
    Uptake. Acquisition of a substance from the environment by an 
organism as a result of any active or passive process.

                    III. Review and Selection of Data

    A. Data Sources. Measured BAFs, BSAFs and BCFs are assembled from 
available sources including the following:
    1. EPA Ambient Water Quality Criteria documents issued after January 
1, 1980.
    2. Published scientific literature.
    3. Reports issued by EPA or other reliable sources.
    4. Unpublished data.
    One useful source of references is the Aquatic Toxicity Information 
Retrieval (AQUIRE) database.
    B. Field-Measured BAFs. The following procedural and quality 
assurance requirements shall be met for field-measured BAFs:
    1. The field studies used shall be limited to those conducted in the 
Great Lakes System with fish at or near the top of the aquatic food 
chain (i.e., in trophic levels 3 and/or 4).
    2. The trophic level of the fish species shall be determined.
    3. The site of the field study should not be so unique that the BAF 
cannot be extrapolated to other locations where the criteria and values 
will apply.
    4. For organic chemicals, the percent lipid shall be either measured 
or reliably estimated for the tissue used in the determination of the 
BAF.
    5. The concentration of the chemical in the water shall be measured 
in a way that can be related to particulate organic carbon (POC) and/or 
dissolved organic carbon (DOC) and should be relatively constant during 
the steady-state time period.
    6. For organic chemicals with log KOW greater than four, 
the concentrations of POC and DOC in the ambient water shall be either 
measured or reliably estimated.
    7. For inorganic and organic chemicals, BAFs shall be used only if 
they are expressed on a wet weight basis; BAFs reported on a dry weight 
basis cannot be converted to wet weight unless a conversion factor is 
measured or reliably estimated for the tissue used in the determination 
of the BAF.
    C. Field-Measured BSAFs. The following procedural and quality 
assurance requirements shall be met for field-measured BSAFs:
    1. The field studies used shall be limited to those conducted in the 
Great Lakes System with fish at or near the top of the aquatic food 
chain (i.e., in trophic levels 3 and/or 4).
    2. Samples of surface sediments (0-1 cm is ideal) shall be from 
locations in which there is net deposition of fine sediment and is 
representative of average surface sediment in the vicinity of the 
organism.

[[Page 540]]

    3. The KOW s used shall be acceptable quality as 
described in section III.F below.
    4. The site of the field study should not be so unique that the 
resulting BAF cannot be extrapolated to other locations where the 
criteria and values will apply.
    5. The tropic level of the fish species shall be determined.
    6. The percent lipid shall be either measured or reliably estimated 
for the tissue used in the determination of the BAF.
    D. Laboratory-Measured BCFs. The following procedural and quality 
assurance requirements shall be met for laboratory-measured BCFs:
    1. The test organism shall not be diseased, unhealthy, or adversely 
affected by the concentration of the chemical.
    2. The total concentration of the chemical in the water shall be 
measured and should be relatively constant during the steady-state time 
period.
    3. The organisms shall be exposed to the chemical using a flow-
through or renewal procedure.
    4. For organic chemicals, the percent lipid shall be either measured 
or reliably estimated for the tissue used in the determination of the 
BCF.
    5. For organic chemicals with log KOW greater than four, 
the concentrations of POC and DOC in the test solution shall be either 
measured or reliably estimated.
    6. Laboratory-measured BCFs should be determined using fish species, 
but BCFs determined with molluscs and other invertebrates may be used 
with caution. For example, because invertebrates metabolize some 
chemicals less efficiently than vertebrates, a baseline BCF determined 
for such a chemical using invertebrates is expected to be higher than a 
comparable baseline BCF determined using fish.
    7. If laboratory-measured BCFs increase or decrease as the 
concentration of the chemical increases in the test solutions in a 
bioconcentration test, the BCF measured at the lowest test concentration 
that is above concentrations existing in the control water shall be used 
(i.e., a BCF should be calculated from a control treatment). The 
concentrations of an inorganic chemical in a bioconcentration test 
should be greater than normal background levels and greater than levels 
required for normal nutrition of the test species if the chemical is a 
micronutrient, but below levels that adversely affect the species. 
Bioaccummulation of an inorganic chemical might be overestimated if 
concentrations are at or below normal background levels due to, for 
example, nutritional requirements of the test organisms.
    8. For inorganic and organic chemicals, BCFs shall be used only if 
they are expressed on a wet weight basis. BCFs reported on a dry weight 
basis cannot be converted to wet weight unless a conversion factor is 
measured or reliably estimated for the tissue used in the determination 
of the BAF.
    9. BCFs for organic chemicals may be based on measurement or 
radioactivity only when the BCF is intended to include metabolites or 
when there is confidence that there is no interference due to 
metabolites.
    10. The calculation of the BCF must appropriately address growth 
dilution.
    11. Other aspects of the methodology used should be similar to those 
described by ASTM (1990).
    E. Predicted BCFs. The following procedural and quality assurance 
requirements shall be met for predicted BCFs:
    1. The KOW used shall be of acceptable quality as 
described in section III.F below.
    2. The predicted baseline BCF shall be calculated using the 
equation: predicted baseline BCF = KOW
    where:
    KOW = octanol-water partition coefficient.
    F. Octanol-Water Partition Coefficient (KOW). 1. The 
value of KOW used for an organic chemical shall be determined 
by giving priority to the experimental and computational techniques used 
as follows:
    Log KOW < 4:

------------------------------------------------------------------------
                 Priority                             Technique
------------------------------------------------------------------------
1.........................................  Slow-stir.
1.........................................  Generator-column.
1.........................................  Shake-flask.
2.........................................  Reverse-phase liquid
                                             chromatography on C18
                                             chromatography packing with
                                             extrapolation to zero
                                             percent solvent.
3.........................................  Reverse-phase liquid
                                             chromatography on C18
                                             chromatography packing
                                             without extrapolation to
                                             zero percent solvent.
4.........................................  Calculated by the CLOGP
                                             program.
------------------------------------------------------------------------

    Log KOW  4:

------------------------------------------------------------------------
             Priority                             Technique
------------------------------------------------------------------------
1.................................  Slow Stir.
1.................................  Generator-column.
2.................................  Reverse-phase liquid chromatography
                                     on C18 chromatography packing with
                                     extrapolation to zero percent
                                     solvent.
3.................................  Reverse-phase liquid chromatography
                                     on C18 chromatography packing
                                     without extrapolation to zero
                                     percent solvent.
4.................................  Shake-flask.
5.................................  Calculated by the CLOGP program.
------------------------------------------------------------------------

    2. The CLOGP program is a computer program available from Pomona 
College. A value of KOW that seems to be different from the 
others should be considered an outlier and not used. The value of 
KOW used for an organic chemical shall be the geometric mean 
of the available KOW s with highest priority or can be 
calculated from the arithmetic mean of the available log KOW 
with the

[[Page 541]]

highest priority. Because it is an intermediate value in the derivation 
of a BAF, the value used for the KOW of a chemical should not 
be rounded to fewer than three significant digits and a value for log 
KOW should not be rounded to fewer than three significant 
digits after the decimal point.
    G. This methodology provides overall guidance for the derivation of 
BAFs, but it cannot cover all the decisions that must be made in the 
review and selection of acceptable data. Professional judgment is 
required throughout the process. A degree of uncertainty is associated 
with the determination of any BAF, BSAF, BCF or KOW. The 
amount of uncertainty in a baseline BAF depends on both the quality of 
data available and the method used to derive the BAF.
    H. Hereinafter in this methodology, the terms BAF, BSAF, BCF and 
KOW refer to ones that are consistent with the procedural and 
quality assurance requirements given above.

               IV. Four Methods for Deriving Baseline BAFs

    Baseline BAFs shall be derived using the following four methods, 
which are listed from most preferred to least preferred:
    A. A measured baseline BAF for an organic or inorganic chemical 
derived from a field study of acceptable quality.
    B. A predicted baseline BAF for an organic chemical derived using 
field-measured BSAFs of acceptable quality.
    C. A predicted baseline BAF for an organic or inorganic chemical 
derived from a BCF measured in a laboratory study of acceptable quality 
and a FCM.
    D. A predicted baseline BAF for an organic chemical derived from a 
KOW of acceptable quality and a FCM.
    For comparative purposes, baseline BAFs should be derived for each 
chemical by as many of the four methods as available data allow.

          V. Calculation of Baseline BAFs for Organic Chemicals

    A. Lipid Normalization. 1. It is assumed that BAFs and BCFs for 
organic chemicals can be extrapolated on the basis of percent lipid from 
one tissue to another and from one aquatic species to another in most 
cases.
    2. Because BAFs and BCFs for organic chemicals are related to the 
percent lipid, it does not make any difference whether the tissue sample 
is whole body or edible portion, but both the BAF (or BCF) and the 
percent lipid must be determined for the same tissue. The percent lipid 
of the tissue should be measured during the BAF or BCF study, but in 
some cases it can be reliably estimated from measurements on tissue from 
other organisms. If percent lipid is not reported for the test organisms 
in the original study, it may be obtained from the author; or, in the 
case of a laboratory study, lipid data for the same or a comparable 
laboratory population of test organisms that were used in the original 
study may be used.
    3. The lipid-normalized concentration, Cl, of a chemical 
in tissue is defined using the following equation:
[GRAPHIC] [TIFF OMITTED] TR23MR95.100

Where:

CB=concentration of the organic chemical in the tissue of 
aquatic biota (either whole organism or specified tissue) ([micro]g/g).
fl=fraction of the tissue that is lipid.

    B. Bioavailability. By definition, baseline BAFs and BCFs for 
organic chemicals, whether measured or predicted are based on the 
concentration of the chemical that is freely dissolved in the ambient 
water in order to account for bioavailability. For the purposes of this 
Guidance in this part, the relationship between the total concentration 
of the chemical in the water (i.e., that which is freely dissolved plus 
that which is sorbed to particulate organic carbon or to dissolved 
organic carbon) to the freely dissolved concentration of the chemical in 
the ambient water shall be calculated using the following equation:
[GRAPHIC] [TIFF OMITTED] TR23MR95.101

Where:

C\fd\w=freely dissolved concentration of the organic chemical 
in the ambient water;
C\t\w=total concentration of the organic chemical in the 
ambient water;
ffd=fraction of the total chemical in the ambient water that 
is freely dissolved.

    The fraction of the total chemical in the ambient water that is 
freely dissolved, ffd, shall be calculated using the 
following equation:
[GRAPHIC] [TIFF OMITTED] TR23MR95.102

Where:

DOC=concentration of dissolved organic carbon, kg of dissolved organic 
carbon/L of water.
KOW=octanol-water partition coefficient of the chemical.
POC=concentration of particulate organic carbon, kg of particulate 
organic carbon/L of water.

    C. Food-Chain Multiplier. In the absence of a field-measured BAF or 
a predicted BAF derived from a BSAF, a FCM shall be used to

[[Page 542]]

calculate the baseline BAF for trophic levels 3 and 4 from a laboratory-
measured or predicted BCF. For an organic chemical, the FCM used shall 
be derived from Table B-1 using the chemical's log KOW and 
linear interpolation. A FCM greater than 1.0 applies to most organic 
chemicals with a log KOW of four or more. The trophic level 
used shall take into account the age or size of the fish species 
consumed by the human, avian or mammalian predator because, for some 
species of fish, the young are in trophic level 3 whereas the adults are 
in trophic level 4.
    D. Calculation of a Baseline BAF from a Field-Measured BAF. A 
baseline BAF shall be calculated from a field-measured BAF of acceptable 
quality using the following equation:
[GRAPHIC] [TIFF OMITTED] TR23MR95.103

Where:

BAF\t\T=BAF based on total concentration in tissue and water.
fl=fraction of the tissue that is lipid.
ffd=fraction of the total chemical that is freely dissolved 
in the ambient water.

The trophic level to which the baseline BAF applies is the same as the 
trophic level of the organisms used in the determination of the field-
measured BAF. For each trophic level, a species mean measured baseline 
BAF shall be calculated as the geometric mean if more than one measured 
baseline BAF is available for a given species. For each trophic level, 
the geometric mean of the species mean measured baseline BAFs shall be 
calculated. If a baseline BAF based on a measured BAF is available for 
either trophic level 3 or 4, but not both, a measured baseline BAF for 
the other trophic level shall be calculated using the ratio of the FCMs 
that are obtained by linear interpolation from Table B-1 for the 
chemical.
    E. Calculation of a Baseline BAF from a Field-Measured BSAF. 1. A 
baseline BAF for organic chemical ``i'' shall be calculated from a 
field-measured BSAF of acceptable quality using the following equation:
[GRAPHIC] [TIFF OMITTED] TR23MR95.105

Where:

(BSAF)i=BSAF for chemical ``i''.
(BSAF)r=BSAF for the reference chemical ``r''.
(KOW)i=octanol-water partition coefficient for 
chemical ``i''.
(KOW)r=octanol-water partition coefficient for the 
reference chemical ``r''.

    2. A BSAF shall be calculated using the following equation:
    [GRAPHIC] [TIFF OMITTED] TR23MR95.106
    
Where:

Ct=the lipid-normalized concentration of the chemical in 
tissue.
CSOC=the organic carbon-normalized concentration of the 
chemical in sediment.
    3. The organic carbon-normalized concentration of a chemical in 
sediment, CSOC, shall be calculated using the following 
equation:
[GRAPHIC] [TIFF OMITTED] TR23MR95.107

Where:
CS=concentration of chemical in sediment ([micro]g/g 
sediment).
fOC=fraction of the sediment that is organic carbon.

    4. Predicting BAFs from BSAFs requires data from a steady-state (or 
near steady-state) condition between sediment and ambient water for both 
a reference chemical ``r'' with a field-measured BAFl fd and 
other chemicals ``n=i'' for which BSAFs are to be determined.
    5. The trophic level to which the baseline BAF applies is the same 
as the trophic level of the organisms used in the determination of the 
BSAF. For each trophic level, a species mean baseline BAF shall be 
calculated

[[Page 543]]

as the geometric mean if more than one baseline BAF is predicted from 
BSAFs for a given species. For each trophic level, the geometric mean of 
the species mean baseline BAFs derived using BSAFs shall be calculated.
    6. If a baseline BAF based on a measured BSAF is available for 
either trophic level 3 or 4, but not both, a baseline BAF for the other 
trophic level shall be calculated using the ratio of the FCMs that are 
obtained by linear interpolation from Table B-1 for the chemical.
    F. Calculation of a Baseline BAF from a Laboratory-Measured BCF. A 
baseline BAF for trophic level 3 and a baseline BAF for trophic level 4 
shall be calculated from a laboratory-measured BCF of acceptable quality 
and a FCM using the following equation:
[GRAPHIC] [TIFF OMITTED] TR23MR95.108

Where:

BCF\t\T=BCF based on total concentration in tissue and water.
fl=fraction of the tissue that is lipid.
ffd=fraction of the total chemical in the test water that is 
freely dissolved.
FCM=the food-chain multiplier obtained from Table B-1 by linear 
interpolation for trophic level 3 or 4, as necessary.

For each trophic level, a species mean baseline BAF shall be calculated 
as the geometric mean if more than one baseline BAF is predicted from 
laboratory-measured BCFs for a given species. For each trophic level, 
the geometric mean of the species mean baseline BAFs based on 
laboratory-measured BCFs shall be calculated.
    G. Calculation of a Baseline BAF from an Octanol-Water Partition 
Coefficient. A baseline BAF for trophic level 3 and a baseline BAF for 
trophic level 4 shall be calculated from a KOW of acceptable 
quality and a FCM using the following equation:
    Baseline BAF=(FCM) (predicted baseline BCF)=(FCM) (KOW)

Where:

FCM=the food-chain multiplier obtained from Table B-1 by linear 
interpolation for trophic level 3 or 4, as necessary.
KOW=octanol-water partition coefficient.

        VI. Human Health and Wildlife BAFs for Organic Chemicals

    A. To calculate human health and wildlife BAFs for an organic 
chemical, the KOW of the chemical shall be used with a POC 
concentration of 0.00000004 kg/L and a DOC concentration of 0.000002 kg/
L to yield the fraction freely dissolved:
[GRAPHIC] [TIFF OMITTED] TR23MR95.109

    B. The human health BAFs for an organic chemical shall be calculated 
using the following equations:
    For trophic level 3:

[[Page 544]]

[GRAPHIC] [TIFF OMITTED] TR23MR95.110

    For trophic level 4:
    [GRAPHIC] [TIFF OMITTED] TR23MR95.111
    
Where:
    0.0182 and 0.0310 are the standardized fraction lipid values for 
trophic levels 3 and 4, respectively, that are used to derive human 
health criteria and values for the GLI.
    C. The wildlife BAFs for an organic chemical shall be calculated 
using the following equations:
    For trophic level 3:
    [GRAPHIC] [TIFF OMITTED] TR23MR95.112
    
    For trophic level 4:
    [GRAPHIC] [TIFF OMITTED] TR23MR95.113
    
Where:
    0.0646 and 0.1031 are the standardized fraction lipid values for 
trophic levels 3 and 4, respectively, that are used to derive wildlife 
criteria for the GLI.

       VII. Human Health and Wildlife BAFs for Inorganic Chemicals

    A. For inorganic chemicals, the baseline BAFs for trophic levels 3 
and 4 are both assumed to equal the BCF determined for the chemical with 
fish, i.e., the FCM is assumed to be 1 for both trophic levels 3 and 4. 
However, a FCM greater than 1 might be applicable to some metals, such 
as mercury, if, for example, an organometallic form of the metal 
biomagnifies.
    B. BAFs for Human Health Criteria and Values.
    1. Measured BAFs and BCFs used to determine human health BAFs for 
inorganic chemicals shall be based on edible tissue (e.g., muscle) of 
freshwater fish unless it is demonstrated that whole-body BAFs or BCFs 
are similar to edible-tissue BAFs or BCFs. BCFs and BAFs based on 
measurements of aquatic plants and invertebrates should not be used in 
the derivation of human health criteria and values.
    2. If one or more field-measured baseline BAFs for an inorganic 
chemical are available from studies conducted in the Great Lakes System 
with the muscle of fish:
    a. For each trophic level, a species mean measured baseline BAF 
shall be calculated as the geometric mean if more than one measured BAF 
is available for a given species; and
    b. For each trophic level, the geometric mean of the species mean 
measured baseline BAFs shall be used as the human health BAF for that 
chemical.
    3. If an acceptable measured baseline BAF is not available for an 
inorganic chemical and one or more acceptable edible-portion laboratory-
measured BCFs are available for the chemical, a predicted baseline BAF 
shall be calculated by multiplying the geometric mean of the BCFs times 
a FCM. The FCM will be 1.0 unless chemical-specific biomagnification 
data support using a multiplier other than 1.0. The predicted baseline 
BAF shall be used as the human health BAF for that chemical.
    C. BAFs for Wildlife Criteria.
    1. Measured BAFs and BCFs used to determine wildlife BAFs for 
inorganic chemicals shall be based on whole-body freshwater fish and 
invertebrate data unless it is demonstrated that edible-tissue BAFs or 
BCFs are similar to whole-body BAFs or BCFs.
    2. If one or more field-measured baseline BAFs for an inorganic 
chemical are available from studies conducted in the Great Lakes

[[Page 545]]

System with whole body of fish or invertebrates:
    a. For each trophic level, a species mean measured baseline BAF 
shall be calculated as the geometric mean if more than one measured BAF 
is available for a given species.
    b. For each trophic level, the geometric mean of the species mean 
measured baseline BAFs shall be used as the wildlife BAF for that 
chemical.
    3. If an acceptable measured baseline BAF is not available for an 
inorganic chemical and one or more acceptable whole-body laboratory-
measured BCFs are available for the chemical, a predicted baseline BAF 
shall be calculated by multiplying the geometric mean of the BCFs times 
a FCM. The FCM will be 1.0 unless chemical-specific biomagnification 
data support using a multiplier other than 1.0. The predicted baseline 
BAF shall be used as the wildlife BAF for that chemical.

                           VIII. Final Review

    For both organic and inorganic chemicals, human health and wildlife 
BAFs for both trophic levels shall be reviewed for consistency with all 
available data concerning the bioaccumulation, bioconcentration, and 
metabolism of the chemical. For example, information concerning octanol-
water partitioning, molecular size, or other physicochemical properties 
that might enhance or inhibit bioaccumulation should be considered for 
organic chemicals. BAFs derived in accordance with this methodology 
should be modified if changes are justified by available data.

                          IX. Literature Cited

    ASTM. 1990. Standard Practice for Conducting Bioconcentration Tests 
with Fishes and Saltwater Bivalve Molluscs. Standard E 1022. American 
Society for Testing and Materials, Philadelphia, PA.

      Table B-1--Food-Chain Multipliers for Trophic Levels 2, 3 & 4
------------------------------------------------------------------------
                                     Trophic    Trophic \1\    Trophic
             Log KOW                 level 2      level 3      level 4
------------------------------------------------------------------------
2.0..............................        1.000        1.005        1.000
2.5..............................        1.000        1.010        1.002
3.0..............................        1.000        1.028        1.007
3.1..............................        1.000        1.034        1.007
3.2..............................        1.000        1.042        1.009
3.3..............................        1.000        1.053        1.012
3.4..............................        1.000        1.067        1.014
3.5..............................        1.000        1.083        1.019
3.6..............................        1.000        1.103        1.023
3.7..............................        1.000        1.128        1.033
3.8..............................        1.000        1.161        1.042
3.9..............................        1.000        1.202        1.054
4.0..............................        1.000        1.253        1.072
4.1..............................        1.000        1.315        1.096
4.2..............................        1.000        1.380        1.130
4.3..............................        1.000        1.491        1.178
4.4..............................        1.000        1.614        1.242
4.5..............................        1.000        1.766        1.334
4.6..............................        1.000        1.950        1.459
4.7..............................        1.000        2.175        1.633
4.8..............................        1.000        2.452        1.871
4.9..............................        1.000        2.780        2.193
5.0..............................        1.000        3.181        2.612
5.1..............................        1.000        3.643        3.162
5.2..............................        1.000        4.188        3.873
5.3..............................        1.000        4.803        4.742
5.4..............................        1.000        5.502        5.821
5.5..............................        1.000        6.266        7.079
5.6..............................        1.000        7.096        8.551
5.7..............................        1.000        7.962       10.209
5.8..............................        1.000        8.841       12.050
5.9..............................        1.000        9.716       13.964
6.0..............................        1.000       10.556       15.996
6.1..............................        1.000       11.337       17.783
6.2..............................        1.000       12.064       19.907
6.3..............................        1.000       12.691       21.677
6.4..............................        1.000       13.228       23.281
6.5..............................        1.000       13.662       24.604
6.6..............................        1.000       13.980       25.645
6.7..............................        1.000       14.223       26.363
6.8..............................        1.000       14.355       26.669
6.9..............................        1.000       14.388       26.669
7.0..............................        1.000       14.305       26.242
7.1..............................        1.000       14.142       25.468
7.2..............................        1.000       13.852       24.322
7.3..............................        1.000       13.474       22.856
7.4..............................        1.000       12.987       21.038
7.5..............................        1.000       12.517       18.967
7.6..............................        1.000       11.708       16.749
7.7..............................        1.000       10.914       14.388
7.8..............................        1.000       10.069       12.050
7.9..............................        1.000        9.162        9.840
8.0..............................        1.000        8.222        7.798
8.1..............................        1.000        7.278        6.012
8.2..............................        1.000        6.361        4.519
8.3..............................        1.000        5.489        3.311
8.4..............................        1.000        4.683        2.371
8.5..............................        1.000        3.949        1.663
8.6..............................        1.000        3.296        1.146
8.7..............................        1.000        2.732        0.778
8.8..............................        1.000        2.246        0.521
8.9..............................        1.000        1.837        0.345
9.0..............................        1.000        1.493        0.226
------------------------------------------------------------------------
\1\ The FCMs for trophic level 3 are the geometric mean of the FCMs for
  sculpin and alewife.



   Sec. Appendix C to Part 132--Great Lakes Water Quality Initiative 

    Methodologies for Development of Human Health Criteria and Values

    Great Lakes States and Tribes shall adopt provisions consistent with 
(as protective as) this appendix.

                             I. Introduction

    Great Lakes States and Tribes shall adopt provisions consistent with 
this appendix C to ensure protection of human health.

[[Page 546]]

    A. Goal. The goal of the human health criteria for the Great Lakes 
System is the protection of humans from unacceptable exposure to 
toxicants via consumption of contaminated fish and drinking water and 
from ingesting water as a result of participation in water-oriented 
recreational activities.
    B. Definitions.
    Acceptable daily exposure (ADE). An estimate of the maximum daily 
dose of a substance which is not expected to result in adverse noncancer 
effects to the general human population, including sensitive subgroups.
    Adverse effect. Any deleterious effect to organisms due to exposure 
to a substance. This includes effects which are or may become 
debilitating, harmful or toxic to the normal functions of the organism, 
but does not include non-harmful effects such as tissue discoloration 
alone or the induction of enzymes involved in the metabolism of the 
substance.
    Carcinogen. A substance which causes an increased incidence of 
benign or malignant neoplasms, or substantially decreases the time to 
develop neoplasms, in animals or humans. The classification of 
carcinogens is discussed in section II.A of appendix C to part 132.
    Human cancer criterion (HCC). A Human Cancer Value (HCV) for a 
pollutant that meets the minimum data requirements for Tier I specified 
in appendix C.
    Human cancer value (HCV). The maximum ambient water concentration of 
a substance at which a lifetime of exposure from either: drinking the 
water, consuming fish from the water, and water-related recreation 
activities; or consuming fish from the water, and water-related 
recreation activities, will represent a plausible upper-bound risk of 
contracting cancer of one in 100,000 using the exposure assumptions 
specified in the Methodologies for the Development of Human Health 
Criteria and Values in appendix C of this part.
    Human noncancer criterion (HNC). A Human Noncancer Value (HNV) for a 
pollutant that meets the minimum data requirements for Tier I specified 
in appendix C of this part.
    Human noncancer value (HNV). The maximum ambient water concentration 
of a substance at which adverse noncancer effects are not likely to 
occur in the human population from lifetime exposure via either: 
drinking the water, consuming fish from the water, and water-related 
recreation activities; or consuming fish from the water, and water-
related recreation activities using the Methodologies for the 
Development of Human Health criteria and Values in appendix C of this 
part.
    Linearized multi-stage model. A conservative mathematical model for 
cancer risk assessment. This model fits linear dose-response curves to 
low doses. It is consistent with a no-threshold model of carcinogenesis, 
i.e., exposure to even a very small amount of the substance is assumed 
to produce a finite increased risk of cancer.
    Lowest observed adverse effect level (LOAEL). The lowest tested dose 
or concentration of a substance which resulted in an observed adverse 
effect in exposed test organisms when all higher doses or concentrations 
resulted in the same or more severe effects.
    No observed adverse effect level (NOAEL). The highest tested dose or 
concentration of a substance which resulted in no observed adverse 
effect in exposed test organisms where higher doses or concentrations 
resulted in an adverse effect.
    Quantitative structure activity relationship (OSAR) or structure 
activity relationship (SAR). A mathematical relationship between a 
property (activity) of a chemical and a number of descriptors of the 
chemical. These descriptors are chemical or physical characteristics 
obtained experimentally or predicted from the structure of the chemical.
    Relative source contribution (RSC). The factor (percentage) used in 
calculating an HNV or HNC to account for all sources of exposure to a 
contaminant. The RSC reflects the percent of total exposure which can be 
attributed to surface water through water intake and fish consumption.
    Risk associated dose (RAD). A dose of a known or presumed 
carcinogenic substance in (mg/kg/day) which, over a lifetime of 
exposure, is estimated to be associated with a plausible upper bound 
incremental cancer risk equal to one in 100,000.
    Slope factor. Also known as q1*, slope factor is the 
incremental rate of cancer development calculated through use of a 
linearized multistage model or other appropriate model. It is expressed 
in (mg/kg/day) of exposure to the chemical in question.
    Threshold effect. An effect of a substance for which there is a 
theoretical or empirically established dose or concentration below which 
the effect does not occur.
    Uncertainty factor (UF). One of several numeric factors used in 
operationally deriving criteria from experimental data to account for 
the quality or quantity of the available data.
    C. Level of Protection. The criteria developed shall provide a level 
of protection likely to be without appreciable risk of carcinogenic and/
or noncarcinogenic effects. Criteria are a function of the level of 
designated risk or no adverse effect estimation, selection of data and 
exposure assumptions. Ambient criteria for single carcinogens shall not 
be set at a level representing a lifetime upper-bound incremental risk 
greater than one in 100,000 of developing cancer using the hazard 
assessment techniques and exposure assumptions described herein. 
Criteria affording protection from noncarcinogenic effects shall be 
established at levels that, taking into account uncertainties, are 
considered likely to be without an appreciable risk

[[Page 547]]

of adverse human health effects (i.e., acute, subchronic and chronic 
toxicity including reproductive and developmental effects) during a 
lifetime of exposure, using the risk assessment techniques and exposure 
assumptions described herein.
    D. Two-tiered Classification. Chemical concentration levels in 
surface water protective of human health shall be derived based on 
either a Tier I or Tier II classification. The two Tiers are primarily 
distinguished by the amount of toxicity data available for deriving the 
concentration levels and the quantity and quality of data on 
bioaccumulation.

                      II. Minimum Data Requirements

    The best available toxicity data on the adverse health effects of a 
chemical and the best data on bioaccumulation factors shall be used when 
developing human health Tier I criteria or Tier II values. The best 
available toxicity data shall include data from well-conducted 
epidemiologic and/or animal studies which provide, in the case of 
carcinogens, an adequate weight of evidence of potential human 
carcinogenicity and, in the case of noncarcinogens, a dose-response 
relationship involving critical effects biologically relevant to humans. 
Such information should be obtained from the EPA Integrated Risk 
Information System (IRIS) database, the scientific literature, and other 
informational databases, studies and/or reports containing adverse 
health effects data of adequate quality for use in this procedure. 
Strong consideration shall be given to the most currently available 
guidance provided by IRIS in deriving criteria or values, supplemented 
with any recent data not incorporated into IRIS. When deviations from 
IRIS are anticipated or considered necessary, it is strongly recommended 
that such actions be communicated to the EPA Reference Dose (RfD) and/or 
the Cancer Risk Assessment Verification Endeavor (CRAVE) workgroup 
immediately. The best available bioaccumulation data shall include data 
from field studies and well-conducted laboratory studies.
    A. Carcinogens. Tier I criteria and Tier II values shall be derived 
using the methodologies described in section III.A of this appendix when 
there is adequate evidence of potential human carcinogenic effects for a 
chemical. It is strongly recommended that the EPA classification system 
for chemical carcinogens, which is described in the 1986 EPA Guidelines 
for Carcinogenic Risk Assessment (U.S. EPA, 1986), or future 
modifications thereto, be used in determining whether adequate evidence 
of potential carcinogenic effects exists. Carcinogens are classified, 
depending on the weight of evidence, as either human carcinogens, 
probable human carcinogens, or possible human carcinogens. The human 
evidence is considered inadequate and therefore the chemical cannot be 
classified as a human carcinogen, if one of two conditions exists: (a) 
there are few pertinent data, or (b) the available studies, while 
showing evidence of association, do not exclude chance, bias, or 
confounding and therefore a casual interpretation is not credible. The 
animal evidence is considered inadequate, and therefore the chemical 
cannot be classified as a probable or possible human carcinogen, when, 
because of major qualitative or quantitative limitations, the evidence 
cannot be interpreted as showing either the presence or absence of a 
carcinogenic effect.
    Chemicals are described as ``human carcinogens'' when there is 
sufficient evidence from epidemiological studies to support a causal 
association between exposure to the chemicals and cancer. Chemicals 
described as ``probable human carcinogens'' include chemicals for which 
the weight of evidence of human carcinogenicity based on epidemiological 
studies is limited. Limited human evidence is that which indicates that 
a causal interpretation is credible, but that alternative explanations, 
such as chance, bias, or confounding, cannot adequately be excluded. 
Probable human carcinogens are also agents for which there is sufficient 
evidence from animal studies and for which there is inadequate evidence 
or no data from epidemiologic studies. Sufficient animal evidence is 
data which indicates that there is an increased incidence of malignant 
tumors or combined malignant and benign tumors: (a) in multiple species 
or strains; (b) in multiple experiments (e.g., with different routes of 
administration or using different dose levels); or (c) to an unusual 
degree in a single experiment with regard to high incidence, unusual 
site or type of tumor, or early age at onset. Additional evidence may be 
provided by data on dose-response effects, as well as information from 
short-term tests (such as mutagenicity/genotoxicity tests which help 
determine whether the chemical interacts directly with DNA) or on 
chemical structure, metabolism or mode of action.
    ``Possible human carcinogens'' are chemicals with limited evidence 
of carcinogenicity in animals in the absence of human data. Limited 
animal evidence is defined as data which suggests a carcinogenic effect 
but are limited because: (a) The studies involve a single species, 
strain, or experiment and do not meet criteria for sufficient evidence 
(see preceding paragraph); or (b) the experiments are restricted by 
inadequate dosage levels, inadequate duration of exposure to the agent, 
inadequate period of follow-up, poor survival, too few animals, or 
inadequate reporting; or (c) the studies indicate an increase in the 
incidence of benign tumors only. More specifically, this group can 
include a wide variety of evidence, e.g., (a) a malignant tumor response 
in a single well-

[[Page 548]]

conducted experiment that does not meet conditions for sufficient 
evidence, (b) tumor response of marginal statistical significance in 
studies having inadequate design or reporting, (c) benign but not 
malignant tumors with an agent showing no response in a variety of 
short-term tests for mutagenicity, and (d) response of marginal 
statistical significance in a tissue known to have a high or variable 
background rate.
    1. Tier I: Weight of evidence of potential human carcinogenic 
effects sufficient to derive a Tier I HCC shall generally include human 
carcinogens, probable human carcinogens and can include, on a case-by-
case basis, possible human carcinogens if studies have been well-
conducted albeit based on limited evidence, when compared to studies 
used in classifying human and probable human carcinogens. The decision 
to use data on a possible human carcinogen for deriving Tier I criteria 
shall be a case-by-case determination. In determining whether to derive 
a Tier I HCC, additional evidence that shall be considered includes but 
is not limited to available information on mode of action, such as 
mutagenicity/genotoxicity (determinations of whether the chemical 
interacts directly with DNA), structure activity, and metabolism.
    2. Tier II: Weight of evidence of possible human carcinogenic 
effects sufficient to derive a Tier II human cancer value shall include 
those possible human carcinogens for which there are at a minimum, data 
sufficient for quantitative risk assessment, but for which data are 
inadequate for Tier I criterion development due to a tumor response of 
marginal statistical significance or inability to derive a strong dose-
response relationship. In determining whether to derive Tier II human 
cancer values, additional evidence that shall be considered includes but 
is not limited to available information on mode of action such as 
mutagenicity/genotoxicity (determinations of whether the chemical 
interacts directly with DNA), structure activity and metabolism. As with 
the use of data on possible human carcinogens in developing Tier I 
criteria, the decision to use data on possible human carcinogens to 
derive Tier II values shall be made on a case-by-case basis.
    B. Noncarcinogens. All available toxicity data shall be evaluated 
considering the full range of possible health effects of a chemical, 
i.e., acute/subacute, chronic/subchronic and reproductive/developmental 
effects, in order to best describe the dose-response relationship of the 
chemical, and to calculate human noncancer criteria and values which 
will protect against the most sensitive endpoint(s) of toxicity. 
Although it is desirable to have an extensive database which considers a 
wide range of possible adverse effects, this type of data exists for a 
very limited number of chemicals. For many others, there is a range in 
quality and quantity of data available. To assure minimum reliability of 
criteria and values, it is necessary to establish a minimum database 
with which to develop Tier I criteria or Tier II values. The following 
represent the minimum data sets necessary for this procedure.
    1. Tier I: The minimum data set sufficient to derive a Tier I human 
HNC shall include at least one well-conducted epidemiologic study or 
animal study. A well-conducted epidemiologic study for a Tier I HNC must 
quantify exposure level(s) and demonstrate positive association between 
exposure to a chemical and adverse effect(s) in humans. A well-conducted 
study in animals must demonstrate a dose response relationship involving 
one or more critical effect(s) biologically relevant to humans. (For 
example, study results from an animal whose pharmacokinetics and 
toxicokinetics match those of a human would be considered most 
biologically relevant.) Ideally, the duration of a study should span 
multiple generations of exposed test species or at least a major portion 
of the lifespan of one generation. This type of data is currently very 
limited. By the use of uncertainty adjustments, shorter term studies 
(such as 90-day subchronic studies) with evaluation of more limited 
effect(s) may be used to extrapolate to longer exposures or to account 
for a variety of adverse effects. For Tier I criteria developed pursuant 
to this procedure, such a limited study must be conducted for at least 
90 days in rodents or 10 percent of the lifespan of other appropriate 
test species and demonstrate a no observable adverse effect level 
(NOAEL). Chronic studies of one year or longer in rodents or 50 percent 
of the lifespan or greater in other appropriate test species that 
demonstrate a lowest observable adverse effect level (LOAEL) may be 
sufficient for use in Tier I criterion derivation if the effects 
observed at the LOAEL were relatively mild and reversible as compared to 
effects at higher doses. This does not preclude the use of a LOAEL from 
a study (of chronic duration) with only one or two doses if the effects 
observed appear minimal when compared to effect levels observed at 
higher doses in other studies.
    2. Tier II: When the minimum data for deriving Tier I criteria are 
not available to meet the Tier I data requirements, a more limited 
database may be considered for deriving Tier II values. As with Tier I 
criteria, all available data shall be considered and ideally should 
address a range of adverse health effects with exposure over a 
substantial portion of the lifespan (or multiple generations) of the 
test species. When such data are lacking it may be necessary to rely on 
less extensive data in order to establish a Tier II value. With the use 
of appropriate uncertainty factors to account for a less extensive 
database, the minimum data sufficient

[[Page 549]]

to derive a Tier II value shall include a NOAEL from at least one well-
conducted short-term repeated dose study. This study shall be of at 
least 28 days duration, in animals demonstrating a dose-response, and 
involving effects biologically relevant to humans. Data from studies of 
longer duration (greater than 28 days) and LOAELs from such studies 
(greater than 28 days) may be more appropriate in some cases for 
derivation of Tier II values. Use of a LOAEL should be based on 
consideration of the following information: severity of effect, quality 
of the study and duration of the study.
    C. Bioaccumulation factors (BAFs).
    1. Tier I for Carcinogens and Noncarcinogens: To be considered a 
Tier I cancer or noncancer human health criterion, along with satisfying 
the minimum toxicity data requirements of sections II.A.1 and II.B.1 of 
this appendix, a chemical must have the following minimum 
bioaccumulation data. For all organic chemicals either: (a) a field-
measured BAF; (b) a BAF derived using the BSAF methodology; or (c) a 
chemical with a BAF less than 125 regardless of how the BAF was derived. 
For all inorganic chemicals, including organometals such as mercury, 
either: (a) a field-measured BAF or (b) a laboratory-measured BCF.
    2. Tier II for Carcinogens and Noncarcinogens: A chemical is 
considered a Tier II cancer or noncancer human health value if it does 
not meet either the minimum toxicity data requirements of sections 
II.A.1 and II.B.1 of this appendix or the minimum bioaccumulation data 
requirements of section II.C.1 of this appendix.

  III. Principles for Development of Tier I Criteria or Tier II Values

    The fundamental components of the procedure to calculate Tier I 
criteria or Tier II values are the same. However, certain of the aspects 
of the procedure designed to account for short-duration studies or other 
limitations in data are more likely to be relevant in deriving Tier II 
values than Tier I criteria.
    A. Carcinogens.
    1. A non-threshold mechanism of carcinogenesis shall be assumed 
unless biological data adequately demonstrate the existence of a 
threshold on a chemical-specific basis.
    2. All appropriate human epidemiologic data and animal cancer 
bioassay data shall be considered. Data specific to an environmentally 
appropriate route of exposure shall be used. Oral exposure should be 
used preferentially over dermal and inhalation since, in most cases, the 
exposure routes of greatest concern are fish consumption and drinking 
water/incidental ingestion. The risk associated dose shall be set at a 
level corresponding to an incremental cancer risk of one in 100,000. If 
acceptable human epidemiologic data are available for a chemical, it 
shall be used to derive the risk associated dose. If acceptable human 
epidemiologic data are not available, the risk associated dose shall be 
derived from available animal bioassay data. Data from a species that is 
considered most biologically relevant to humans (i.e., responds most 
like humans) is preferred where all other considerations regarding 
quality of data are equal. In the absence of data to distinguish the 
most relevant species, data from the most sensitive species tested, 
i.e., the species showing a carcinogenic effect at the lowest 
administered dose, shall generally be used.
    3. When animal bioassay data are used and a non-threshold mechanism 
of carcinogenicity is assumed, the data are fitted to a linearized 
multistage computer model (e.g., Global '86 or equivalent model). Global 
'86 is the linearized multistage model, derived by Howe, Crump and Van 
Landingham (1986), which EPA uses to determine cancer potencies. The 
upper-bound 95 percent confidence limit on risk (or, the lower 95 
percent confidence limit on dose) at the one in 100,000 risk level shall 
be used to calculate a risk associated dose (RAD). Other models, 
including modifications or variations of the linear multistage model 
which are more appropriate to the available data may be used where 
scientifically justified.
    4. If the duration of the study is significantly less than the 
natural lifespan of the test animal, the slope may be adjusted on a 
case-by-case basis to compensate for latent tumors which were not 
expressed (e.g., U.S. EPA, 1980) In the absence of alternative 
approaches which compensate for study durations significantly less than 
lifetime, the permitting authority may use the process described in the 
1980 National Guidelines (see 45 FR 79352).
    5. A species scaling factor shall be used to account for differences 
between test species and humans. It shall be assumed that milligrams per 
surface area per day is an equivalent dose between species (U.S. EPA, 
1986). All doses presented in mg/kg bodyweight will be converted to an 
equivalent surface area dose by raising the mg/kg dose to the 2/3 power. 
However, if adequate pharmacokinetic and metabolism studies are 
available, these data may be factored into the adjustment for species 
differences on a case-by-case basis.
    6. Additional data selection and adjustment decisions must also be 
made in the process of quantifying risk. Consideration must be given to 
tumor selection for modeling, e.g., pooling estimates for multiple tumor 
types and identifying and combining benign and malignant tumors. All 
doses shall be adjusted to give an average daily dose over the study 
duration. Adjustments in the rate of tumor response must be made for

[[Page 550]]

early mortality in test species. The goodness-of-fit of the model to the 
data must also be assessed.
    7. When a linear, non-threshold dose response relationship is 
assumed, the RAD shall be calculated using the following equation:
[GRAPHIC] [TIFF OMITTED] TR23MR95.114

Where:

RAD=risk associated dose in milligrams of toxicant per kilogram body 
weight per day (mg/kg/day).
0.00001 (1x10-5)=incremental risk of developing cancer equal 
to one in 100,000.
q1*=slope factor (mg/kg/day)-1.
    8. If human epidemiologic data and/or other biological data (animal) 
indicate that a chemical causes cancer via a threshold mechanism, the 
risk associated dose may, on a case-by-case basis, be calculated using a 
method which assumes a threshold mechanism is operative.
    B. Noncarcinogens.
    1. Noncarcinogens shall generally be assumed to have a threshold 
dose or concentration below which no adverse effects should be observed. 
Therefore, the Tier I criterion or Tier II value is the maximum water 
concentration of a substance at or below which a lifetime exposure from 
drinking the water, consuming fish caught in the water, and ingesting 
water as a result of participating in water-related recreation 
activities is likely to be without appreciable risk of deleterious 
effects.
    For some noncarcinogens, there may not be a threshold dose below 
which no adverse effects should be observed. Chemicals acting as 
genotoxic teratogens and germline mutagens are thought to possibly 
produce reproductive and/or developmental effects via a genetically 
linked mechanism which may have no threshold. Other chemicals also may 
not demonstrate a threshold. Criteria for these types of chemicals will 
be established on a case-by-case basis using appropriate assumptions 
reflecting the likelihood that no threshold exists.
    2. All appropriate human and animal toxicologic data shall be 
reviewed and evaluated. To the maximum extent possible, data most 
specific to the environmentally relevant route of exposure shall be 
used. Oral exposure data should be used preferentially over dermal and 
inhalation since, in most cases, the exposure routes of greatest concern 
are fish consumption and drinking water/incidental ingestion. When 
acceptable human data are not available (e.g., well-conducted 
epidemiologic studies), animal data from species most biologically 
relevant to humans shall be used. In the absence of data to distinguish 
the most relevant species, data from the most sensitive animal species 
tested, i.e., the species showing a toxic effect at the lowest 
administered dose (given a relevant route of exposure), should generally 
be used.
    3. Minimum data requirements are specified in section II.B of this 
appendix. The experimental exposure level representing the highest level 
tested at which no adverse effects were demonstrated (NOAEL) from 
studies satisfying the provisions of section II.B of this appendix shall 
be used for criteria calculations. In the absence of a NOAEL, the LOAEL 
from studies satisfying the provisions of section II.B of this appendix 
may be used if it is based on relatively mild and reversible effects.
    4. Uncertainty factors shall be used to account for the 
uncertainties in predicting acceptable dose levels for the general human 
population based upon experimental animal data or limited human data.
    a. An uncertainty factor of 10 shall generally be used when 
extrapolating from valid experimental results from studies on prolonged 
exposure to average healthy humans. This 10-fold factor is used to 
protect sensitive members of the human population.
    b. An uncertainty factor of 100 shall generally be used when 
extrapolating from valid results of long-term studies on experimental 
animals when results of studies of human exposure are not available or 
are inadequate. In comparison to a, above, this represents an additional 
10-fold uncertainty factor in extrapolating data from the average animal 
to the average human.
    c. An uncertainty factor of up to 1000 shall generally be used when 
extrapolating from animal studies for which the exposure duration is 
less than chronic, but greater than subchronic (e.g., 90 days or more in 
length), or when other significant deficiencies in study quality are 
present, and when useful long-term human data are not available. In 
comparison to b, above, this represents an additional UF of up to 10-
fold for less than chronic, but greater than subchronic, studies.
    d. An UF of up to 3000 shall generally be used when extrapolating 
from animal studies for which the exposure duration is less than 
subchronic (e.g., 28 days). In comparison to b above, this represents an 
additional UF of up to 30-fold for less than subchronic studies (e.g., 
28-day). The level of additional uncertainty applied for less than 
chronic exposures depends on the duration of the study used relative to 
the lifetime of the experimental animal.
    e. An additional UF of between one and ten may be used when deriving 
a criterion from a LOAEL. This UF accounts for the lack of an 
identifiable NOAEL. The level of additional uncertainty applied may 
depend upon the severity and the incidence of the observed adverse 
effect.

[[Page 551]]

    f. An additional UF of between one and ten may be applied when there 
are limited effects data or incomplete sub-acute or chronic toxicity 
data (e.g., reproductive/developmental data). The level of quality and 
quantity of the experimental data available as well as structure-
activity relationships may be used to determine the factor selected.
    g. When deriving an UF in developing a Tier I criterion or Tier II 
value, the total uncertainty, as calculated following the guidance of 
sections 4.a through f, cited above, shall not exceed 10,000 for Tier I 
criteria and 30,000 for Tier II values.
    5. All study results shall be converted, as necessary, to the 
standard unit for acceptable daily exposure of milligrams of toxicant 
per kilogram of body weight per day (mg/kg/day). Doses shall be adjusted 
for continuous exposure (i.e., seven days/week, 24 hours/day, etc.).
    C. Criteria and Value Derivation.
    1. Standard Exposure Assumptions. The following represent the 
standard exposure assumptions used to calculate Tier I criteria and Tier 
II values for carcinogens and noncarcinogens. Higher levels of exposure 
may be assumed by States and Tribes pursuant to Clean Water Act (CWA) 
section 510, or where appropriate in deriving site-specific criteria 
pursuant to procedure 1 in appendix F to part 132.
    BW = body weight of an average human (BW = 70kg).
    WCd = per capita water consumption (both drinking and 
incidental exposure) for surface waters classified as public water 
supplies = two liters/day.
     --or--
    WCr = per capita incidental daily water ingestion for 
surface waters not used as human drinking water sources = 0.01 liters/
day.
    FC = per capita daily consumption of regionally caught freshwater 
fish = 0.015kg/day (0.0036 kg/day for trophic level 3 and 0.0114 kg/day 
for trophic level 4).
    BAF = bioaccumulation factor for trophic level 3 and trophic level 
4, as derived using the BAF methodology in appendix B to part 132.
    2. Carcinogens. The Tier I human cancer criteria or Tier II values 
shall be calculated as follows:
[GRAPHIC] [TIFF OMITTED] TR23MR95.115

Where:

HCV=Human Cancer Value in milligrams per liter (mg/L).
RAD=Risk associated dose in milligrams toxicant per kilogram body weight 
per day (mg/kg/day) that is associated with a lifetime incremental 
cancer risk equal to one in 100,000.
BW=weight of an average human (BW=70 kg).
WCd=per capita water consumption (both drinking and 
incidental exposure) for surface waters classified as public water 
supplies=two liters/day.
 or
WCr=per capita incidental daily water ingestion for surface 
waters not used as human drinking water sources=0.01 liters/day.
FCTL3=mean consumption of trophic level 3 of regionally 
caught freshwater fish=0.0036 kg/day.
FCTL4=mean consumption of trophic level 4 of regionally 
caught freshwater fish=0.0114 kg/day.
BAF\HH\TL3=bioaccumulation factor for trophic level 3 fish, 
as derived using the BAF methodology in appendix B to part 132.
BAF\HH\TL4=bioaccumulation factor for trophic level 4 fish, 
as derived using the BAF methodology in appendix B to part 132.

    3. Noncarcinogens. The Tier I human noncancer criteria or Tier II 
values shall be calculated as follows:
[GRAPHIC] [TIFF OMITTED] TR23MR95.116

Where:

HNV=Human noncancer value in milligrams per liter (mg/L).
ADE=Acceptable daily exposure in milligrams toxicant per kilogram body 
weight per day (mg/kg/day).

[[Page 552]]

RSC=Relative source contribution factor of 0.8. An RSC derived from 
actual exposure data may be developed using the methodology outlined by 
the 1980 National Guidelines (see 45 FR 79354).
BW=weight of an average human (BW=70 kg).
WCd=per capita water consumption (both drinking and 
incidental exposure) for surface waters classified as public water 
supplies=two liters/day.
 or
WCr=per capita incidental daily water ingestion for surface 
waters not used as human drinking water sources=0.01 liters/day.
FCTL3=mean consumption of trophic level 3 fish by regional 
sport fishers of regionally caught freshwater fish=0.0036 kg/day.
FCTL4=mean consumption of trophic level 4 fish by regional 
sport fishers of regionally caught freshwater fish=0.0114 kg/day.
BAF\HH\TL3=human health bioaccumulation factor for edible 
portion of trophic level 3 fish, as derived using the BAF methodology in 
appendix B to part 132.
BAF\HH\TL4=human health bioaccumulation factor for edible 
portion of trophic level 4 fish, as derived using the BAF methodology in 
appendix B to part 132.

                             IV. References

    A. Howe, R.B., K.S. Crump and C. Van Landingham. 1986. Computer 
Program to Extrapolate Quantitative Animal Toxicity Data to Low Doses. 
Prepared for EPA under subcontract 2-251U-2745 to Research 
Triangle Institute.
    B. U.S. Environmental Protection Agency. 1980. Water Quality 
Criteria Availability, Appendix C Guidelines and Methodology Used in the 
Preparation of Health Effects Assessment Chapters of the Consent Decree 
Water Quality Criteria Documents. Available from U.S. Environmental 
Protection Agency, Office of Water Resource Center (WH-550A), 1200 
Pennsylvania Ave., NW., Washington, DC 20460.
    C. U.S. Environmental Protection Agency. 1986. Guidelines for 
Carcinogen Risk Assessment. Available from U.S. Environmental Protection 
Agency, Office of Water Resource Center (WH-550A), 1200 Pennsylvania 
Ave., NW., Washington, DC 20460.



   Sec. Appendix D to Part 132--Great Lakes Water Quality Initiative 
          Methodology for the Development of Wildlife Criteria

    Great Lakes States and Tribes shall adopt provisions consistent with 
(as protective as) this appendix.

                             I. Introduction

    A. A Great Lakes Water Quality Wildlife Criterion (GLWC) is the 
concentration of a substance which is likely to, if not exceeded, 
protect avian and mammalian wildlife populations inhabiting the Great 
Lakes basin from adverse effects resulting from the ingestion of water 
and aquatic prey taken from surface waters of the Great Lakes System. 
These criteria are based on existing toxicological studies of the 
substance of concern and quantitative information about the exposure of 
wildlife species to the substance (i.e., food and water consumption 
rates). Since toxicological and exposure data for individual wildlife 
species are limited, a GLWC is derived using a methodology similar to 
that used to derive noncancer human health criteria (Barnes and Dourson, 
1988; NAS, 1977; NAS, 1980; U.S. EPA, 1980). Separate avian and 
mammalian values are developed using taxonomic class-specific toxicity 
data and exposure data for five representative Great Lakes basin 
wildlife species. The wildlife species selected are representative of 
avian and mammalian species resident in the Great Lakes basin which are 
likely to experience the highest exposures to bioaccumulative 
contaminants through the aquatic food web; they are the bald eagle, 
herring gull, belted kingfisher, mink, and river otter.
    B. This appendix establishes a methodology which is required when 
developing Tier I wildlife criteria for bioaccumulative chemicals of 
concern (BCCs). The use of the equation provided in the methodology is 
encouraged, but not required, for the development of Tier I criteria or 
Tier II values for pollutants other than those identified in Table 6-A 
for which Tier I criteria or Tier II values are determined to be 
necessary for the protection of wildlife in the Great Lakes basin. A 
discussion of the methodology for deriving Tier II values can be found 
in the Great Lakes Water Quality Initiative Technical Support Document 
for Wildlife Criteria (Wildlife TSD).
    C. In the event that this methodology is used to develop criteria 
for pollutants other than BCCs, or in the event that the Tier II 
methodology described in the Wildlife TSD is used to derive Tier II 
values, the methodology for deriving bioaccumulation factors under 
appendix B to part 132 must be used in either derivation. For chemicals 
which do not biomagnify to the extent of BCCs, it may be appropriate to 
select different representative species which are better examples of 
species with the highest exposures for the given chemical. The equation 
presented in this methodology, however, is still encouraged. In 
addition, procedure 1 of appendix F of this part describes the 
procedures for calculating site-specific wildlife criteria.
    D. The term ``wildlife value'' (WV) is used to denote the value for 
each representative species which results from using the equation 
presented below, the value obtained from averaging species values within 
a class, or any value derived from application of the site-specific 
procedure provided in procedure

[[Page 553]]

1 of appendix F of this part. The WVs calculated for the representative 
species are used to calculate taxonomic class-specific WVs. The WV is 
the concentration of a substance which, if not exceeded, should better 
protect the taxon in question.
    E. ``Tier I wildlife criterion,'' or ``Tier I criterion'' is used to 
denote the number derived from data meeting the Tier I minimum database 
requirements, and which will be protective of the two classes of 
wildlife. It is synonymous with the term ``GLWC,'' and the two are used 
interchangeably.

         II. Calculation of Wildlife Values for Tier I Criteria

    Table 4 of Part 132 and Table D-1 of this appendix contain criteria 
calculated by EPA using the methodology provided below.
    A. Equation for Avian and Mammalian Wildlife Values. Tier I wildlife 
values for the pollutants designated BCCs pursuant to part 132 are to be 
calculated using the equation presented below.
[GRAPHIC] [TIFF OMITTED] TR23MR95.117

Where:

WV=Wildlife Value in milligrams of substance per liter (mg/L).
TD=Test Dose (TD) in milligrams of substance per kilograms per day (mg/
kg-d) for the test species. This shall be either a NOAEL or a LOAEL.
UFA=Uncertainty Factor (UF) for extrapolating toxicity data 
across species (unitless). A species-specific UF shall be selected and 
applied to each representative species, consistent with the equation.
UFS=UF for extrapolating from subchronic to chronic exposures 
(unitless).
UFL=UF for LOAEL to NOAEL extrapolations (unitless).
Wt=Average weight in kilograms (kg) for the representative species.
W=Average daily volume of water consumed in liters per day (L/d) by the 
representative species.
FTLi=Average daily amount of food consumed from trophic level 
i in kilograms per day (kg/d) by the representative species.
BAF\WL\TLi=Bioaccumulation factor (BAF) for wildlife food in 
trophic level i in liters per kilogram (L/kg), developed using the BAF 
methodology in appendix B to part 132, Methodology for Development of 
Bioaccumulation Factors. For consumption of piscivorous birds by other 
birds (e.g., herring gull by eagles), the BAF is derived by multiplying 
the trophic level 3 BAF for fish by a biomagnification factor to account 
for the biomagnification from fish to the consumed birds.
    B. Identification of Representative Species for Protection. For 
bioaccumulative chemicals, piscivorous species are identified as the 
focus of concern for wildlife criteria development in the Great Lakes. 
An analysis of known or estimated exposure components for avian and 
mammalian wildlife species is presented in the Wildlife TSD. This 
analysis identifies three avian species (eagle, kingfisher and herring 
gull) and two mammalian species (mink and otter) as representative 
species for protection. The TD obtained from toxicity data for each 
taxonomic class is used to calculate WVs for each of the five 
representative species.
    C. Calculation of Avian and Mammalian Wildlife Values and GLWC 
Derivation. The avian WV is the geometric mean of the WVs calculated for 
the three representative avian species. The mammalian WV is the 
geometric mean of the WVs calculated for the two representative 
mammalian species. The lower of the mammalian and avian WVs must be 
selected as the GLWC.

    III. Parameters of the Effect Component of the Wildlife Criteria 
                               Methodology

    A. Definitions. The following definitions provide additional 
specificity and guidance in the evaluation of toxicity data and the 
application of this methodology.
    Acceptable endpoints. For the purpose of wildlife criteria 
derivation, acceptable subchronic and chronic endpoints are those which 
affect reproductive or developmental success, organismal viability or 
growth, or any other endpoint which is, or is directly related to, 
parameters that influence population dynamics.
    Chronic effect. An adverse effect that is measured by assessing an 
acceptable endpoint, and results from continual exposure over several 
generations, or at least over a significant part of the test species' 
projected life span or life stage.
    Lowest-observed-adverse-effect-level (LOAEL). The lowest tested dose 
or concentration of a substance which resulted in an observed adverse 
effect in exposed test organisms when all higher doses or concentrations 
resulted in the same or more severe effects.
    No-observed-adverse-effect-level (NOAEL). The highest tested dose or 
concentration of a substance which resulted in no observed adverse 
effect in exposed test organisms where higher doses or concentrations 
resulted in an adverse effect.
    Subchronic effect. An adverse effect, measured by assessing an 
acceptable endpoint, resulting from continual exposure for a period of 
time less than that deemed necessary for a chronic test.
    B. Minimum Toxicity Database for Tier I Criteria Development. A TD 
value is required for

[[Page 554]]

criterion calculation. To derive a Tier I criterion for wildlife, the 
data set shall provide enough data to generate a subchronic or chronic 
dose-response curve for any given substance for both mammalian and avian 
species. In reviewing the toxicity data available which meet the minimum 
data requirements for each taxonomic class, the following order of 
preference shall be applied to select the appropriate TD to be used for 
calculation of individual WVs. Data from peer-reviewed field studies of 
wildlife species take precedence over other types of studies, where such 
studies are of adequate quality. An acceptable field study must be of 
subchronic or chronic duration, provide a defensible, chemical-specific 
dose-response curve in which cause and effect are clearly established, 
and assess acceptable endpoints as defined in this document. When 
acceptable wildlife field studies are not available, or determined to be 
of inadequate quality, the needed toxicity information may come from 
peer-reviewed laboratory studies. When laboratory studies are used, 
preference shall be given to laboratory studies with wildlife species 
over traditional laboratory animals to reduce uncertainties in making 
interspecies extrapolations. All available laboratory data and field 
studies shall be reviewed to corroborate the final GLWC, to assess the 
reasonableness of the toxicity value used, and to assess the 
appropriateness of any UFs which are applied. When evaluating the 
studies from which a test dose is derived in general, the following 
requirements must be met:
    1. The mammalian data must come from at least one well-conducted 
study of 90 days or greater designed to observe subchronic or chronic 
effects as defined in this document.
    2. The avian data must come from at least one well-conducted study 
of 70 days or greater designed to observe subchronic or chronic effects 
as defined in this document.
    3. In reviewing the studies from which a TD is derived for use in 
calculating a WV, studies involving exposure routes other than oral may 
be considered only when an equivalent oral daily dose can be estimated 
and technically justified because the criteria calculations are based on 
an oral route of exposure.
    4. In assessing the studies which meet the minimum data 
requirements, preference should be given to studies which assess effects 
on developmental or reproductive endpoints because, in general, these 
are more important endpoints in ensuring that a population's 
productivity is maintained. The Wildlife TSD provides additional 
discussion on the selection of an appropriate toxicity study.
    C. Selection of TD Data. In selecting data to be used in the 
derivation of WVs, the evaluation of acceptable endpoints, as defined in 
Section III.A of this appendix, will be the primary selection criterion. 
All data not part of the selected subset may be used to assess the 
reasonableness of the toxicity value and the appropriateness of the Ufs 
which are applied.
    1. If more than one TD value is available within a taxonomic class, 
based on different endpoints of toxicity, that TD, which is likely to 
reflect best potential impacts to wildlife populations through resultant 
changes in mortality or fecundity rates, shall be used for the 
calculation of WVs.
    2. If more than one TD is available within a taxonomic class, based 
on the same endpoint of toxicity, the TD from the most sensitive species 
shall be used.
    3. If more than one TD based on the same endpoint of toxicity is 
available for a given species, the TD for that species shall be 
calculated using the geometric mean of those TDs.
    D. Exposure Assumptions in the Determination of the TD. 1. In those 
cases in which a TD is available in units other than milligrams of 
substance per kilograms per day (mg/kg/d), the following procedures 
shall be used to convert the TD to the appropriate units prior to 
calculating a WV.
    2. If the TD is given in milligrams of toxicant per liter of water 
consumed by the test animals (mg/L), the TD shall be multiplied by the 
daily average volume of water consumed by the test animals in liters per 
day (L/d) and divided by the average weight of the test animals in 
kilograms (kg).
    3. If the TD is given in milligrams of toxicant per kilogram of food 
consumed by the test animals (mg/kg), the TD shall be multiplied by the 
average amount of food in kilograms consumed daily by the test animals 
(kg/d) and divided by the average weight of the test animals in 
kilograms (kg).
    E. Drinking and Feeding Rates. 1. When drinking and feeding rates 
and body weight are needed to express the TD in milligrams of substance 
per kilograms per day (mg/kg/d), they are obtained from the study from 
which the TD was derived. If not already determined, body weight, and 
drinking and feeding rates are to be converted to a wet weight basis.
    2. If the study does not provide the needed values, the values shall 
be determined from appropriate scientific literature. For studies done 
with domestic laboratory animals, either the Registry of Toxic Effects 
of Chemical Substances (National Institute for Occupational Safety and 
Health, the latest edition, Cincinnati, OH), or Recommendations for and 
Documentation of Biological Values for Use in Risk Assessment (U.S. EPA, 
1988) should be consulted. When these references do not contain exposure 
information for the species used in a given study, either the allometric 
equations from Calder and Braun (1983) and Nagy (1987), which are 
presented below, or the exposure estimation methods

[[Page 555]]

presented in Chapter 4 of the Wildlife Exposure Factors Handbook (U.S. 
EPA, 1993), should be applied to approximate the needed feeding or 
drinking rates. Additional discussion and recommendations are provided 
in the Wildlife TSD. The choice of the methods described above is at the 
discretion of the State or Tribe.
    3. For mammalian species, the general allometric equations are:

    a. F = 0.0687 x (Wt)\0.82\

Where:

F = Feeding rate of mammalian species in kilograms per day (kg/d) dry 
weight.
Wt = Average weight in kilograms (kg) of the test animals.

    b. W = 0.099 x (Wt)\0.90\

Where:

W = Drinking rate of mammalian species in liters per day (L/d).
Wt = Average weight in kilograms (kg) of the test animals.

    4. For avian species, the general allometric equations are:

    a. F = 0.0582 (Wt)\0.65\

Where:

F = Feeding rate of avian species in kilograms per day (kg/d) dry 
weight.
Wt = Average weight in kilograms (kg) of the test animals.

    b. W = 0.059 x (Wt)\0.67\

Where:

W = Drinking rate of avian species in liters per day (L/d).
Wt = Average weight in kilograms (kg) of the test animals.

    F. LOAEL to NOAEL Extrapolations (UFL). In those cases in 
which a NOAEL is unavailable as the TD and a LOAEL is available, the 
LOAEL may be used to estimate the NOAEL. If used, the LOAEL shall be 
divided by an UF to estimate a NOAEL for use in deriving WVs. The value 
of the UF shall not be less than one and should not exceed 10, depending 
on the dose-response curve and any other available data, and is 
represented by UFL in the equation expressed in Section II.A 
of this appendix. Guidance for selecting an appropriate UFL, 
based on a review of available wildlife toxicity data, is available in 
the Wildlife TSD.
    G. Subchronic to Chronic Extrapolations (USS). In 
instances where only subchronic data are available, the TD may be 
derived from subchronic data. In such cases, the TD shall be divided by 
an UF to extrapolate from subchronic to chronic levels. The value of the 
UF shall not be less than one and should not exceed 10, and is 
represented by UFS in the equation expressed in Section II.A 
of this appendix. This factor is to be used when assessing highly 
bioaccumulative substances where toxicokinetic considerations suggest 
that a bioassay of limited length underestimates chronic effects. 
Guidance for selecting an appropriate UFS, based on a review 
of available wildlife toxicity data, is available in the Wildlife TSD.
    H. Interspecies Extrapolations (UFA). 1. The selection of 
the UFA shall be based on the available toxicological data 
and on available data concerning the physicochemical, toxicokinetic, and 
toxicodynamic properties of the substance in question and the amount and 
quality of available data. This value is an UF that is intended to 
account for differences in toxicological sensitivity among species. 
Guidance for selecting an appropriate UFA, based on a review 
of available wildlife toxicity data, is available in the Wildlife TSD. 
Additional discussion of an interspecies UF located in appendix A to the 
Great Lakes Water Quality Initiative Technical Support Document for 
Human Health Criteria may be useful in determining the appropriate value 
for UFA.
    2. For the derivation of Tier I criteria, a UFA shall not 
be less than one and should not exceed 100, and shall be applied to each 
of the five representative species, based on existing data and best 
professional judgment. The value of UFA may differ for each 
of the representative species.
    3. For Tier I wildlife criteria, the UFA shall be used 
only for extrapolating toxicity data across species within a taxonomic 
class, except as provided below. The Tier I UFA is not 
intended for interclass extrapolations because of the poorly defined 
comparative toxicokinetic and toxicodynamic parameters between mammals 
and birds. However, an interclass extrapolation employing a 
UFA may be used for a given chemical if it can be supported 
by a validated biologically-based dose-response model or by an analysis 
of interclass toxicological data, considering acceptable endpoints, for 
a chemical analog that acts under the same mode of toxic action.

   IV. Parameters of the Exposure Component of the Wildlife Criteria 
                               Methodology

    A. Drinking and Feeding Rates of Representative Species. The body 
weights (Wt), feeding rates (FTli), drinking rates (W), and 
trophic level dietary composition (as food ingestion rate and percent in 
diet) for each of the five representative species are presented in Table 
D-2 of this appendix. Guidance on incorporating the non-aquatic portion 
of the bald eagle and mink diets in the criteria calculations is 
available in the Wildlife TSD.
    B. BAFs. The Methodology for Development of Bioaccumulation Factors 
is presented in appendix B to part 132. Trophic level 3 and 4 BAFs are 
used to derive Wvs because these are the trophic levels at which the 
representative species feed.

[[Page 556]]

                              V. References

    A. Barnes, D.G. and M. Dourson. 1988. Reference Dose (RfD): 
Description and Use in Health Risk Assessments. Regul. Toxicol. 
Pharmacol. 8:471-486.
    B. Calder III, W.A. and E.J. Braun. 1983. Scaling of Osmotic 
Regulation in Mammals and Birds. American Journal of Physiology. 
244:601-606.
    C. Nagy, K.A. 1987. Field Metabolic Rate and Food Requirement 
Scaling in Mammals and Birds. Ecological Monographs. 57(2):111-128.
    D. National Academy of Sciences. 1977. Chemical Contaminants: Safety 
and Risk Assessment, in Drinking Water and Health, Volume 1. National 
Academy Press.
    E. National Academy of Sciences. 1980. Problems of Risk Estimation, 
in Drinking Water and Health, Volume 3. National Academy Press.
    F. National Institute for Occupational Safety and Health. Latest 
edition. Registry of Toxic Effects of Chemical Substances. Division of 
Standards Development and Technology Transfer. (Available only on 
microfiche or as an electronic database.)
    G. U.S. EPA. 1980. Appendix C. Guidelines and Methodology Used in 
the Preparation of Health Effect Assessment Chapters of the Consent 
Decree Water Criteria Documents, pp. 79347-79357 in Water Quality 
Criteria Documents; Availability. Available from U.S. Environmental 
Protection Agency, Office of Water Resource Center (WH-550A), 1200 
Pennsylvania Ave., NW, Washington, DC 20460.
    H. U.S. EPA. 1988. Recommendations for, and documentation of, 
biological values for use in risk assessment. NTIS-PB88-179874.
    I. U.S. EPA. 1993. Wildlife Exposure Factors Handbook, Volumes I and 
II. EPA/600/R-93/187a and b.

                    Tables to Appendix D to Part 132

             Table D-1--Tier I Great Lakes Wildlife Criteria
------------------------------------------------------------------------
                  Substance                     Criterion ([micro]g/L)
------------------------------------------------------------------------
DDT & Metabolites...........................  1.1E-5
Mercury.....................................  1.3E-3
PCBs (total)................................  7.4E-5
2,3,7,8-TCDD................................  3.1E-9
------------------------------------------------------------------------


          Table D-2--Exposure Parameters for the Five Representative Species Identified for Protection
----------------------------------------------------------------------------------------------------------------
                                                      Water
                                       Adult body   ingestion    Food ingestion rate of   Trophic level of prey
           Species (units)               weight      rate (L/     prey in each trophic      (percent of diet)
                                          (kg)         day)          level (kg/day)
----------------------------------------------------------------------------------------------------------------
Mink.................................        0.80        0.081  TL3: 0.159; Other:       TL3: 90; Other: 10.
                                                                 0.0177.
Otter................................        7.4         0.600  TL3: 0.977; TL4: 0.244.  TL3: 80; TL4: 20.
Kingfisher...........................        0.15        0.017  TL3: 0.0672............  TL3: 100.
Herring gull.........................        1.1         0.063  TL3: 0.192; TL4: 0.0480  Fish: 90--TL3: 80; TL4:
                                                                                          20.
                                       ..........  ...........  Other: 0.0267..........  Other: 10.
Bald eagle...........................        4.6         0.160  TL3: 0.371; TL4: 0.0929  Fish: 92--TL3: 80; TL4:
                                                                                          20.
                                       ..........  ...........  PB: 00283; Other:        Birds: 8--PB: 70; non-
                                                                 0.0121.                  aquatic: 30.
----------------------------------------------------------------------------------------------------------------
Note: TL3=trophic level three fish; TL4=trophic level four fish; PB=piscivorous birds; Other=non-aquatic birds
  and mammals.



   Sec. Appendix E to Part 132--Great Lakes Water Quality Initiative 
                         Antidegradation Policy

    Great Lakes States and Tribes shall adopt provisions consistent with 
(as protective as) appendix E to part 132.
    The State or Tribe shall adopt an antidegradation standard 
applicable to all waters of the Great Lakes System and identify the 
methods for implementing such a standard. Consistent with 40 CFR 131.12, 
an acceptable antidegradation standard and implementation procedure are 
required elements of a State's or Tribe's water quality standards 
program. Consistent with 40 CFR 131.6, a complete water quality 
standards submission needs to include both an antidegradation standard 
and antidegradation implementation procedures. At a minimum, States and 
Tribes shall adopt provisions in their antidegradation standard and 
implementation methods consistent with sections I, II, III and IV of 
this appendix, applicable to pollutants identified as bioaccumulative 
chemicals of concern (BCCs).

                       I. Antidegradation Standard

    This antidegradation standard shall be applicable to any action or 
activity by any source, point or nonpoint, of pollutants that is 
anticipated to result in an increased loading of BCCs to surface waters 
of the Great Lakes System and for which independent regulatory authority 
exists requiring compliance with water quality standards. Pursuant to 
this standard:
    A. Existing instream water uses, as defined pursuant to 40 CFR 131, 
and the level of

[[Page 557]]

water quality necessary to protect existing uses shall be maintained and 
protected. Where designated uses of the waterbody are impaired, there 
shall be no lowering of the water quality with respect to the pollutant 
or pollutants which are causing the impairment;
    B. Where, for any parameter, the quality of the waters exceed levels 
necessary to support the propagation of fish, shellfish, and wildlife 
and recreation in and on the waters, that water shall be considered high 
quality for that parameter consistent with the definition of high 
quality water found at section II.A of this appendix and that quality 
shall be maintained and protected unless the State or Tribe finds, after 
full satisfaction of intergovernmental coordination and public 
participation provisions of the State's or Tribe's continuing planning 
process, that allowing lower water quality is necessary to accommodate 
important economic or social development in the area in which the waters 
are located. In allowing such degradation, the State or Tribe shall 
assure water quality adequate to protect existing uses fully. Further, 
the State or Tribe shall assure that there shall be achieved the highest 
statutory and regulatory requirements for all new and existing point 
sources and all cost-effective and reasonable best management practices 
for nonpoint source control. The State or Tribe shall utilize the 
Antidegradation Implementation Procedures adopted pursuant to the 
requirements of this regulation in determining if any lowering of water 
quality will be allowed;
    C. Where high quality waters constitute an outstanding national 
resource, such as waters of national and State parks and wildlife 
refuges and waters of exceptional recreational or ecological 
significance, that water quality shall be maintained and protected; and
    D. In those cases where the potential lowering of water quality is 
associated with a thermal discharge, the decision to allow such 
degradation shall be consistent with section 316 of the Clean Water Act 
(CWA).

              II. Antidegradation Implementation Procedures

    A. Definitions.
    Control Document. Any authorization issued by a State, Tribal or 
Federal agency to any source of pollutants to waters under its 
jurisdiction that specifies conditions under which the source is allowed 
to operate.
    High quality waters. High quality waters are water bodies in which, 
on a parameter by parameter basis, the quality of the waters exceeds 
levels necessary to support propagation of fish, shellfish, and wildlife 
and recreation in and on the water.
    Lake Superior Basin--Outstanding International Resource Waters. 
Those waters designated as such by a Tribe or State consistent with the 
September 1991 Bi-National Program to Restore and Protect the Lake 
Superior Basin. The purpose of such designations shall be to ensure that 
any new or increased discharges of Lake Superior bioaccumulative 
substances of immediate concern are subject to best technology in 
process and treatment requirements.
    Lake Superior Basin--Outstanding National Resource Waters. Those 
waters designated as such by a Tribe or State consistent with the 
September 1991 Bi-National Program to Restore and Protect the Lake 
Superior Basin. The purpose of such designations shall be to prohibit 
new or increased discharges of Lake Superior bioaccumulative substances 
of immediate concern from point sources in these areas.
    Lake Superior bioaccumulative substances of immediate concern. A 
list of substances identified in the September 1991 Bi-National Program 
to Restore and Protect the Lake Superior Basin. They include: 2, 3, 7, 
8-TCDD; octachlorostyrene; hexachlorobenzene; chlordane; DDT, DDE, and 
other metabolites; toxaphene; PCBs; and mercury. Other chemicals may be 
added to the list following States' or Tribes' assessments of 
environmental effects and impacts and after public review and comment.
    Outstanding National Resource Waters. Those waters designated as 
such by a Tribe or State. The State or Tribal designation shall describe 
the quality of such waters to serve as the benchmark of the water 
quality that shall be maintained and protected. Waters that may be 
considered for designation as Outstanding National Resource Waters 
include, but are not limited to, water bodies that are recognized as:
    Important because of protection through official action, such as 
Federal or State law, Presidential or secretarial action, international 
treaty, or interstate compact;
    Having exceptional recreational significance;
    Having exceptional ecological significance;
    Having other special environmental, recreational, or ecological 
attributes; or waters whose designation as Outstanding National Resource 
Waters is reasonably necessary for the protection of other waters so 
designated.
    Significant Lowering of Water Quality. A significant lowering of 
water quality occurs when there is a new or increased loading of any BCC 
from any regulated existing or new facility, either point source or 
nonpoint source for which there is a control document or reviewable 
action, as a result of any activity including, but not limited to:
    (1) Construction of a new regulated facility or modification of an 
existing regulated facility such that a new or modified control document 
is required;
    (2) Modification of an existing regulated facility operating under a 
current control

[[Page 558]]

document such that the production capacity of the facility is increased;
    (3) Addition of a new source of untreated or pretreated effluent 
containing or expected to contain any BCC to an existing wastewater 
treatment works, whether public or private;
    (4) A request for an increased limit in an applicable control 
document;
    (5) Other deliberate activities that, based on the information 
available, could be reasonably expected to result in an increased 
loading of any BCC to any waters of the Great Lakes System.
    b. Notwithstanding the above, changes in loadings of any BCC within 
the existing capacity and processes, and that are covered by the 
existing applicable control document, are not subject to an 
antidegradation review. These changes include, but are not limited to:
    (1) Normal operational variability;
    (2) Changes in intake water pollutants;
    (3) Increasing the production hours of the facility, (e.g., adding a 
second shift); or
    (4) Increasing the rate of production.
    C. Also, excluded from an antidegradation review are new effluent 
limits based on improved monitoring data or new water quality criteria 
or values that are not a result of changes in pollutant loading.
    B. For all waters, the Director shall ensure that the level of water 
quality necessary to protect existing uses is maintained. In order to 
achieve this requirement, and consistent with 40 CFR 131.10, water 
quality standards use designations must include all existing uses. 
Controls shall be established as necessary on point and nonpoint sources 
of pollutants to ensure that the criteria applicable to the designated 
use are achieved in the water and that any designated use of a 
downstream water is protected. Where water quality does not support the 
designated uses of a waterbody or ambient pollutant concentrations 
exceed water quality criteria applicable to that waterbody, the Director 
shall not allow a lowering of water quality for the pollutant or 
pollutants preventing the attainment of such uses or exceeding such 
criteria.
    C. For Outstanding National Resource Waters:
    1. The Director shall ensure, through the application of appropriate 
controls on pollutant sources, that water quality is maintained and 
protected.
    2. Exception. A short-term, temporary (i.e., weeks or months) 
lowering of water quality may be permitted by the Director.
    D. For high quality waters, the Director shall ensure that no action 
resulting in a lowering of water quality occurs unless an 
antidegradation demonstration has been completed pursuant to section III 
of this appendix and the information thus provided is determined by the 
Director pursuant to section IV of this appendix to adequately support 
the lowering of water quality.
    1. The Director shall establish conditions in the control document 
applicable to the regulated facility that prohibit the regulated 
facility from undertaking any deliberate action, such that there would 
be an increase in the rate of mass loading of any BCC, unless an 
antidegradation demonstration is provided to the Director and approved 
pursuant to section IV of this appendix prior to commencement of the 
action. Imposition of limits due to improved monitoring data or new 
water quality criteria or values, or changes in loadings of any BCC 
within the existing capacity and processes, and that are covered by the 
existing applicable control document, are not subject to an 
antidegradation review.
    2. For BCCs known or believed to be present in a discharge, from a 
point or nonpoint source, a monitoring requirement shall be included in 
the control document. The control document shall also include a 
provision requiring the source to notify the Director or any increased 
loadings. Upon notification, the Director shall require actions as 
necessary to reduce or eliminate the increased loading.
    3. Fact Sheets prepared pursuant to 40 CFR 124.8 and 124.56 shall 
reflect any conditions developed under sections II.D.1 or II.D.2 of this 
appendix and included in a permit.
    E. Special Provisions for Lake Superior. The following conditions 
apply in addition to those specified in section II.B through II.C of 
this appendix for waters of Lake Superior so designated.
    1. A State or Tribe may designate certain specified areas of the 
Lake Superior Basin as Lake Superior Basin--Outstanding National 
Resource Waters for the purpose of prohibiting the new or increased 
discharge of Lake Superior bioaccumulative substances of immediate 
concern from point sources in these areas.
    2. States and Tribes may designate all waters of the Lake Superior 
Basin as Outstanding International Resource Waters for the purpose of 
restricting the increased discharge of Lake Superior bioaccumulative 
substances of immediate concern from point sources consistent with the 
requirements of sections III.C and IV.B of this appendix.
    F. Exemptions. Except as the Director may determine on a case-by-
case basis that the application of these procedures is required to 
adequately protect water quality, or as the affected waterbody is an 
Outstanding National Resource Water as defined in section II.A of this 
appendix, the procedures in this part do not apply to:
    1. Short-term, temporary (i.e., weeks or months) lowering of water 
quality;
    2. Bypasses that are not prohibited at 40 CFR 122.41(m); and
    3. Response actions pursuant to the Comprehensive Environmental 
Response, Compensation and Liability Act (CERCLA), as amended, or 
similar Federal, State or Tribal

[[Page 559]]

authorities, undertaken to alleviate a release into the environment of 
hazardous substances, pollutants or contaminants which may pose an 
imminent and substantial danger to public health or welfare.

                   III. Antidegradation Demonstration

    Any entity seeking to lower water quality in a high quality water or 
create a new or increased discharge of Lake Superior bioaccumulative 
substances of immediate concern in a Lake Superior Outstanding 
International Resource Water must first, as required by sections II.D or 
II.E.2 of this appendix, submit an antidegradation demonstration for 
consideration by the Director. States and Tribes should tailor the level 
of detail and documentation in antidegradation reviews, to the specific 
circumstances encountered. The antidegradation demonstration shall 
include the following:
    A. Pollution Prevention Alternatives Analysis. Identify any cost-
effective pollution prevention alternatives and techniques that are 
available to the entity, that would eliminate or significantly reduce 
the extent to which the increased loading results in a lowering of water 
quality.
    B. Alternative or Enhanced Treatment Analysis. Identify alternative 
or enhanced treatment techniques that are available to the entity that 
would eliminate the lowering of water quality and their costs relative 
to the cost of treatment necessary to achieve applicable effluent 
limitations.
    C. Lake Superior. If the States or Tribes designate the waters of 
Lake Superior as Outstanding International Resource Waters pursuant to 
section II.E.2 of this appendix, then any entity proposing a new or 
increased discharge of any Lake Superior bioaccumulative substance of 
immediate concern to the Lake Superior Basin shall identify the best 
technology in process and treatment to eliminate or reduce the extent of 
the lowering of water quality. In this case, the requirements in section 
III.B of this appendix do not apply.
    D. Important Social or Economic Development Analysis. Identify the 
social or economic development and the benefits to the area in which the 
waters are located that will be foregone if the lowering of water 
quality is not allowed.
    E. Special Provision for Remedial Actions. Entities proposing 
remedial actions pursuant to the CERCLA, as amended, corrective actions 
pursuant to the Resource Conservation and Recovery Act, as amended, or 
similar actions pursuant to other Federal or State environmental 
statutes may submit information to the Director that demonstrates that 
the action utilizes the most cost effective pollution prevention and 
treatment techniques available, and minimizes the necessary lowering of 
water quality, in lieu of the information required by sections III.B 
through III.D of this appendix.

                      IV. Antidegradation Decision

    A. Once the Director determines that the information provided by the 
entity proposing to increase loadings is administratively complete, the 
Director shall use that information to determine whether or not the 
lowering of water quality is necessary, and, if it is necessary, whether 
or not the lowering of water quality will support important social and 
economic development in the area. If the proposed lowering of water 
quality is either not necessary, or will not support important social 
and economic development, the Director shall deny the request to lower 
water quality. If the lowering of water quality is necessary, and will 
support important social and economic development, the Director may 
allow all or part of the proposed lowering to occur as necessary to 
accommodate the important social and economic development. In no event 
may the decision reached under this section allow water quality to be 
lowered below the minimum level required to fully support existing and 
designated uses. The decision of the Director shall be subject to the 
public participation requirements of 40 CFR 25.
    B. If States designate the waters of Lake Superior as Outstanding 
International Resource Waters pursuant to section II.E.2 of this 
appendix, any entity requesting to lower water quality in the Lake 
Superior Basin as a result of the new or increased discharge of any Lake 
Superior bioaccumulative substance of immediate concern shall be 
required to install and utilize the best technology in process and 
treatment as identified by the Director.



   Sec. Appendix F to Part 132--Great Lakes Water Quality Initiative 
                        Implementation Procedures

     Procedure 1: Site-specific Modifications to Criteria and Values

    Great Lakes States and Tribes shall adopt provisions consistent with 
(as protective as) this procedure.
    A. Requirements for Site-specific Modifications to Criteria and 
Values. Criteria and values may be modified on a site-specific basis to 
reflect local environmental conditions as restricted by the following 
provisions. Any such modifications must be protective of designated uses 
and aquatic life, wildlife or human health and be submitted to EPA for 
approval. In addition, any site-specific modifications that result in 
less stringent criteria must be based on a sound scientific rationale 
and shall not be likely to jeopardize the continued existence of 
endangered or threatened species listed or proposed under section 4 of 
the Endangered Species Act (ESA) or result

[[Page 560]]

in the destruction or adverse modification of such species' critical 
habitat. More stringent modifications shall be developed to protect 
endangered or threatened species listed or proposed under section 4 of 
the ESA, where such modifications are necessary to ensure that water 
quality is not likely to jeopardize the continued existence of such 
species or result in the destruction or adverse modification of such 
species' critical habitat. More stringent modifications may also be 
developed to protect candidate (C1) species being considered by the U.S. 
Fish and Wildlife Service (FWS) for listing under section 4 of the ESA, 
where such modifications are necessary to protect such species.
    1. Aquatic Life.
    a. Aquatic life criteria or values may be modified on a site-
specific basis to provide an additional level of protection, pursuant to 
authority reserved to the States and Tribes under Clean Water Act (CWA) 
section 510.
    Guidance on developing site-specific criteria in these instances is 
provided in Chapter 3 of the U.S. EPA Water Quality Standards Handbook, 
Second Edition--Revised (1994).
    b. Less stringent site-specific modifications to chronic or acute 
aquatic life criteria or values may be developed when:
    i. The local water quality characteristics such as Ph, hardness, 
temperature, color, etc., alter the biological availability or toxicity 
of a pollutant; or
    ii. The sensitivity of the aquatic organisms species that ``occur at 
the site'' differs from the species actually tested in developing the 
criteria. The phrase ``occur at the site'' includes the species, genera, 
families, orders, classes, and phyla that: are usually present at the 
site; are present at the site only seasonally due to migration; are 
present intermittently because they periodically return to or extend 
their ranges into the site; were present at the site in the past, are 
not currently present at the site due to degraded conditions, and are 
expected to return to the site when conditions improve; are present in 
nearby bodies of water, are not currently present at the site due to 
degraded conditions, and are expected to be present at the site when 
conditions improve. The taxa that ``occur at the site'' cannot be 
determined merely by sampling downstream and/or upstream of the site at 
one point in time. ``Occur at the site'' does not include taxa that were 
once present at the site but cannot exist at the site now due to 
permanent physical alteration of the habitat at the site resulting, for 
example, from dams, etc.
    c. Less stringent modifications also may be developed to acute and 
chronic aquatic life criteria or values to reflect local physical and 
hydrological conditions.
    Guidance on developing site-specific criteria is provided in Chapter 
3 of the U.S. EPA Water Quality Standards Handbook, Second Edition--
Revised (1994).
    d. Any modifications to protect threatened or endangered aquatic 
species required by procedure 1.A of this appendix may be accomplished 
using either of the two following procedures:
    i. If the Species Mean Acute Value (SMAV) for a listed or proposed 
species, or for a surrogate of such species, is lower than the 
calculated Final Acute Value (FAV), such lower SMAV may be used instead 
of the calculated FAV in developing site-specific modified criteria; or,
    ii. The site-specific criteria may be calculated using the 
recalculation procedure for site-specific modifications described in 
Chapter 3 of the U.S. EPA Water Quality Standards Handbook, Second 
Edition--Revised (1994).
    2. Wildlife.
    a. Wildlife water quality criteria may be modified on a site-
specific basis to provide an additional level of protection, pursuant to 
authority reserved to the States and Tribes under CWA section 510.
    b. Less stringent site-specific modifications to wildlife water 
quality criteria may be developed when a site-specific bioaccumulation 
factor (BAF) is derived which is lower than the system-wide BAF derived 
under appendix B of this part. The modification must consider both the 
mobility of prey organisms and wildlife populations in defining the site 
for which criteria are developed. In addition, there must be a showing 
that:
    i. Any increased uptake of the toxicant by prey species utilizing 
the site will not cause adverse effects in wildlife populations; and
    ii. Wildlife populations utilizing the site or downstream waters 
will continue to be fully protected.
    c. Any modification to protect endangered or threatened wildlife 
species required by procedure 1.A of this appendix must consider both 
the mobility of prey organisms and wildlife populations in defining the 
site for which criteria are developed, and may be accomplished by using 
the following recommended method.
    i. The methodology presented in appendix D to part 132 is used, 
substituting appropriate species-specific toxicological, 
epidemiological, or exposure information, including changes to the BAF;
    ii. An interspecies uncertainty factor of 1 should be used where 
epidemiological data are available for the species in question. If 
necessary, species-specific exposure parameters can be derived as 
presented in Appendix D of this part;
    iii. An intraspecies uncertainty factor (to account for protection 
of individuals within a wildlife population) should be applied in the 
denominator of the effect part of the wildlife equation in appendix D of 
this part

[[Page 561]]

in a manner consistent with the other uncertainty factors described in 
appendix D of this part; and
    iv. The resulting wildlife value for the species in question should 
be compared to the two class-specific wildlife values which were 
previously calculated, and the lowest of the three shall be selected as 
the site-specific modification.
    Note: Further discussion on the use of this methodology may be found 
in the Great Lakes Water Quality Initiative Technical Support Document 
for Wildlife Criteria.
    3. BAFs.
    a. BAFs may be modified on a site-specific basis to larger values, 
pursuant to the authority reserved to the States and Tribes under CWA 
section 510, where reliable data show that local bioaccumulation is 
greater than the system-wide value.
    b. BAFs may be modified on a site-specific basis to lower values, 
where scientifically defensible, if:
    i. The fraction of the total chemical that is freely dissolved in 
the ambient water is different than that used to derive the system-wide 
BAFs (i.e., the concentrations of particulate organic carbon and the 
dissolved organic carbon are different than those used to derive the 
system-wide BAFs);
    ii. Input parameters of the Gobas model, such as the structure of 
the aquatic food web and the disequilibrium constant, are different at 
the site than those used to derive the system-wide BAFs;
    iii. The percent lipid of aquatic organisms that are consumed and 
occur at the site is different than that used to derive the system-wide 
BAFs; or
    iv. Site-specific field-measured BAFs or biota-sediment accumulation 
factor (BSAFs) are determined.
    If site-specific BAFs are derived, they shall be derived using the 
methodology in appendix B of this part.
    c. Any more stringent modifications to protect threatened or 
endangered species required by procedure 1.A of this appendix shall be 
derived using procedures set forth in the methodology in appendix B of 
this part.
    4. Human Health.
    a. Human health criteria or values may be modified on a site-
specific basis to provide an additional level of protection, pursuant to 
authority reserved to the States and Tribes under CWA section 510. Human 
health criteria or values shall be modified on a site-specific basis to 
provide additional protection appropriate for highly exposed 
subpopulations.
    b. Less stringent site-specific modifications to human health 
criteria or values may be developed when:
    i. local fish consumption rates are lower than the rate used in 
deriving human health criteria or values under appendix C of this part; 
and/or
    ii. a site-specific BAF is derived which is lower than that used in 
deriving human health criteria or values under appendix C of this part.
    B. Notification Requirements. When a State proposes a site-specific 
modification to a criterion or value as allowed in section 4.A above, 
the State should notify the other Great Lakes States of such a proposal 
and, for less stringent criteria, supply appropriate justification.
    C. References.
    U.S. EPA. 1984. Water Quality Standards Handbook--Revised. Chapter 3 
and Appendices. U.S. Environmental Protection Agency, Office of Water 
Resource Center (RC-4100), 1200 Pennsylvania Ave., NW., Washington, DC 
20960.

  Procedure 2: Variances from Water Quality Standards for Point Sources

    The Great Lakes States or Tribes may adopt water quality standards 
(WQS) variance procedures and may grant WQS variances for point sources 
pursuant to such procedures. Variance procedures shall be consistent 
with (as protective as) the provisions in this procedure.
    A. Applicability. A State or Tribe may grant a variance to a WQS 
which is the basis of a water quality-based effluent limitation included 
in a National Pollutant Discharge Elimination System (NPDES) permit. A 
WQS variance applies only to the permittee requesting the variance and 
only to the pollutant or pollutants specified in the variance. A 
variance does not affect, or require the State or Tribe to modify, the 
corresponding water quality standard for the waterbody as a whole.
    1. This provision shall not apply to new Great Lakes dischargers or 
recommencing dischargers.
    2. A variance to a water quality standard shall not be granted that 
would likely jeopardize the continued existence of any endangered or 
threatened species listed under Section 4 of the Endangered Species Act 
(ESA) or result in the destruction or adverse modification of such 
species' critical habitat.
    3. A WQS variance shall not be granted if standards will be attained 
by implementing effluent limits required under sections 301(b) and 306 
of the Clean Water Act (CWA) and by the permittee implementing cost-
effective and reasonable best management practices for nonpoint source 
control.
    B. Maximum Timeframe for Variances. A WQS variance shall not exceed 
five years or the term of the NPDES permit, whichever is less. A State 
or Tribe shall review, and modify as necessary, WQS variances as part of 
each water quality standards review pursuant to section 303(c) of the 
CWA.
    C. Conditions to Grant a Variance. A variance may be granted if:

[[Page 562]]

    1. The permittee demonstrates to the State or Tribe that attaining 
the WQS is not feasible because:
    a. Naturally occurring pollutant concentrations prevent the 
attainment of the WQS;
    b. Natural, ephemeral, intermittent or low flow conditions or water 
levels prevent the attainment of the WQS, unless these conditions may be 
compensated for by the discharge of sufficient volume of effluent to 
enable WQS to be met without violating State or Tribal water 
conservation requirements;
    c. Human-caused conditions or sources of pollution prevent the 
attainment of the WQS and cannot be remedied, or would cause more 
environmental damage to correct than to leave in place;
    d. Dams, diversions or other types of hydrologic modifications 
preclude the attainment of the WQS, and it is not feasible to restore 
the waterbody to its original condition or to operate such modification 
in a way that would result in the attainment of the WQS;
    e. Physical conditions related to the natural features of the 
waterbody, such as the lack of a proper substrate cover, flow, depth, 
pools, riffles, and the like, unrelated to chemical water quality, 
preclude attainment of WQS; or
    f. Controls more stringent than those required by sections 301(b) 
and 306 of the CWA would result in substantial and widespread economic 
and social impact.
    2. In addition to the requirements of C.1, above, the permittee 
shall also:
    a. Show that the variance requested conforms to the requirements of 
the State's or Tribe's antidegradation procedures; and
    b. Characterize the extent of any increased risk to human health and 
the environment associated with granting the variance compared with 
compliance with WQS absent the variance, such that the State or Tribe is 
able to conclude that any such increased risk is consistent with the 
protection of the public health, safety and welfare.
    D. Submittal of Variance Application. The permittee shall submit an 
application for a variance to the regulatory authority issuing the 
permit. The application shall include:
    1. All relevant information demonstrating that attaining the WQS is 
not feasible based on one or more of the conditions in section C.1 of 
this procedure; and,
    2. All relevant information demonstrating compliance with the 
conditions in section C.2 of this procedure.
    E. Public Notice of Preliminary Decision. Upon receipt of a complete 
application for a variance, and upon making a preliminary decision 
regarding the variance, the State or Tribe shall public notice the 
request and preliminary decision for public comment pursuant to the 
regulatory authority's Administrative Procedures Act and shall notify 
the other Great Lakes States and Tribes of the preliminary decision. 
This public notice requirement may be satisfied by including the 
supporting information for the variance and the preliminary decision in 
the public notice of a draft NPDES permit.
    F. Final Decision on Variance Request. The State or Tribe shall 
issue a final decision on the variance request within 90 days of the 
expiration of the public comment period required in section E of this 
procedure. If all or part of the variance is approved by the State or 
Tribe, the decision shall include all permit conditions needed to 
implement those parts of the variance so approved. Such permit 
conditions shall, at a minimum, require:
    1. Compliance with an initial effluent limitation which, at the time 
the variance is granted, represents the level currently achievable by 
the permittee, and which is no less stringent than that achieved under 
the previous permit;
    2. That reasonable progress be made toward attaining the water 
quality standards for the waterbody as a whole through appropriate 
conditions;
    3. When the duration of a variance is shorter than the duration of a 
permit, compliance with an effluent limitation sufficient to meet the 
underlying water quality standard, upon the expiration of said variance; 
and
    4. A provision that allows the permitting authority to reopen and 
modify the permit based on any State or Tribal triennial water quality 
standards revisions to the variance.
    The State shall deny a variance request if the permittee fails to 
make the demonstrations required under section C of this procedure.
    G. Incorporating Variance into Permit. The State or Tribe shall 
establish and incorporate into the permittee's NPDES permit all 
conditions needed to implement the variance as determined in section F 
of this procedure.
    H. Renewal of Variance. A variance may be renewed, subject to the 
requirements of sections A through G of this procedure. As part of any 
renewal application, the permittee shall again demonstrate that 
attaining WQS is not feasible based on the requirements of section C of 
this procedure. The permittee's application shall also contain 
information concerning its compliance with the conditions incorporated 
into its permit as part of the original variance pursuant to sections F 
and G of this procedure. Renewal of a variance may be denied if the 
permittee did not comply with the conditions of the original variance.
    I. EPA Approval. All variances and supporting information shall be 
submitted by the State or Tribe to the appropriate EPA regional office 
and shall include:
    1. Relevant permittee applications pursuant to section D of this 
procedure;

[[Page 563]]

    2. Public comments and records of any public hearings pursuant to 
section E of this procedure;
    3. The final decision pursuant to section F of this procedure; and,
    4. NPDES permits issued pursuant to section G of this procedure.
    5. Items required by sections I.1 through I.3. of this procedure 
shall be submitted by the State within 30 days of the date of the final 
variance decision. The item required by section I.4 of this procedure 
shall be submitted in accordance with the State or Tribe Memorandum of 
Agreement with the Regional Administrator pursuant to 40 CFR 123.24.
    6. EPA shall review the State or Tribe submittal for compliance with 
the CWA pursuant to 40 CFR 123.44, and 40 CFR 131.21.
    J. State WQS Revisions. All variances shall be appended to the State 
or Tribe WQS rules.

Procedure 3: Total Maximum Daily Loads, Wasteload Allocations for Point 
Sources, Load Allocations for Nonpoint Sources, Wasteload Allocations in 
    the Absence of a TMDL, and Preliminary Wasteload Allocations for 
Purposes of Determining the Need for Water Quality Based Effluent Limits

    The Great Lakes States and Tribes shall adopt provisions consistent 
with (as protective as) this procedure 3 for the purpose of developing 
Total Maximum Daily Loads (TMDLs), Wasteload Allocations (WLAs) in the 
Absence of TMDLs, and Preliminary Wasteload Allocations for Purposes of 
Determining the Need for Water Quality Based Effluent Limits (WQBELs), 
except as specifically provided.
    A. Where a State or Tribe develops an assessment and remediation 
plan that the State or Tribe certifies meets the requirements of 
sections B through F of this procedure and public participation 
requirements applicable to TMDLs, and that has been approved by EPA as 
meeting those requirements under 40 CFR 130.6, the assessment and 
remediation plan may be used in lieu of a TMDL for purposes of appendix 
F to part 132. Assessment and remediation plans under this procedure may 
include, but are not limited to, Lakewide Management Plans, Remedial 
Action Plans, and State Water Quality Management Plans. Also, any part 
of an assessment and remediation plan that also satisfies one or more 
requirements under Clean Water Act (CWA) section 303(d) or implementing 
regulations may be incorporated by reference into a TMDL as appropriate. 
Assessment and remediation plans under this section should be tailored 
to the level of detail and magnitude for the watershed and pollutant 
being assessed.
    B. General Conditions of Application. Except as provided in Sec. 
132.4, the following are conditions applicable to establishing TMDLs for 
all pollutants and pollutant parameters in the Great Lakes System, with 
the exception of whole effluent toxicity, unless otherwise provided in 
procedure 6 of appendix F. Where specified, these conditions also apply 
to wasteload allocations (WLAs) calculated in the absence of TMDLs and 
to preliminary WLAs for purposes of determining the needs for WQBELs 
under procedure 5 of appendix F.
    1. TMDLs Required. TMDLs shall, at a minimum, be established in 
accordance with the listing and priority setting process established in 
section 303(d) of the CWA and at 40 CFR 130.7. Where water quality 
standards cannot be attained immediately, TMDLs must reflect reasonable 
assurances that water quality standards will be attained in a reasonable 
period of time. Some TMDLs may be based on attaining water quality 
standards over a period of time, with specific controls on individual 
sources being implemented in stages. Determining the reasonable period 
of time in which water quality standards will be met is a case-specific 
determination considering a number of factors including, but not limited 
to: receiving water characteristics; persistence, behavior and ubiquity 
of pollutants of concern; type of remediation activities necessary; 
available regulatory and non-regulatory controls; and individual State 
or Tribal requirements for attainment of water quality standards.
    2. Attainment of Water Quality Standards. A TMDL must ensure 
attainment of applicable water quality standards, including all numeric 
and narrative criteria, Tier I criteria, and Tier II values for each 
pollutant or pollutants for which a TMDL is established.
    3. TMDL Allocations.
    a. TMDLs shall include WLAs for point sources and load allocations 
(LAs) for nonpoint sources, including natural background, such that the 
sum of these allocations is not greater than the loading capacity of the 
water for the pollutant(s) addressed by the TMDL, minus the sum of a 
specified margin of safety (MOS) and any capacity reserved for future 
growth.
    b. Nonpoint source LAs shall be based on:
    i. Existing pollutant loadings if changes in loadings are not 
reasonably anticipated to occur;
    ii. Increases in pollutant loadings that are reasonably anticipated 
to occur;
    iii. Anticipated decreases in pollutant loadings if such decreased 
loadings are technically feasible and are reasonably anticipated to 
occur within a reasonable time period as a result of implementation of 
best management practices or other load reduction measures. In 
determining whether anticipated decreases in pollutant loadings are 
technically feasible and can reasonably be expected to occur within a 
reasonable period of time, technical and institutional factors shall be 
considered. These decisions are case-

[[Page 564]]

specific and should reflect the particular TMDL under consideration.
    c. WLAs. The portion of the loading capacity not assigned to 
nonpoint sources including background, or to an MOS, or reserved for 
future growth is allocated to point sources. Upon reissuance, NPDES 
permits for these point sources must include effluent limitations 
consistent with WLAs in EPA-approved or EPA-established TMDLs.
    d. Monitoring. For LAs established on the basis of subsection b.iii 
above, monitoring data shall be collected and analyzed in order to 
validate the TMDL's assumptions, to varify anticipated load reductions, 
to evaluate the effectiveness of controls being used to implement the 
TMDL, and to revise the WLAs and LAs as necessary to ensure that water 
quality standards will be achieved within the time-period established in 
the TMDL.
    4. WLA Values. If separate EPA-approved or EPA-established TMDLs are 
prepared for different segments of the same watershed, and the separate 
TMDLs each include WLAs for the same pollutant for one or more of the 
same point sources, then WQBELs for that pollutant for the point 
source(s) shall be consistent with the most stringent of those WLAs in 
order to ensure attainment of all applicable water quality standards.
    5. Margin of Safety (MOS). Each TMDL shall include a MOS sufficient 
to account for technical uncertainties in establishing the TMDL and 
shall describe the manner in which the MOS is determined and 
incorporated into the TMDL. The MOS may be provided by leaving a portion 
of the loading capacity unallocated or by using conservative modeling 
assumptions to establish WLAs and LAs. If a portion of the loading 
capacity is left unallocated to provide a MOS, the amount left 
unallocated shall be described. If conservative modeling assumptions are 
relied on to provide a MOS, the specific assumptions providing the MOS 
shall be identified.
    6. More Stringent Requirements. States and Tribes may exercise 
authority reserved to them under section 510 of the CWA to develop more 
stringent TMDLs (including WLAs and LAs) than are required herein, 
provided that all LAs in such TMDLs reflect actual nonpoint source loads 
or those loads that can reasonably be expected to occur within a 
reasonable time-period as a result of implementing nonpoint source 
controls.
    7. Accumulation in Sediments. TMDLs shall reflect, where appropriate 
and where sufficient data are available, contributions to the water 
column from sediments inside and outside of any applicable mixing zones. 
TMDLs shall be sufficiently stringent so as to prevent accumulation of 
the pollutant of concern in sediments to levels injurious to designated 
or existing uses, human health, wildlife and aquatic life.
    8. Wet Weather Events. Notwithstanding the exception provided for 
the establishment of controls on wet weather point sources in Sec. 
132.4(e)(1), TMDLs shall reflect, where appropriate and where sufficient 
data are available, discharges resulting from wet weather events. This 
procedure does not provide specific procedures for considering 
discharges resulting from wet weather events. However, some of the 
provisions of procedure 3 may be deemed appropriate for considering wet 
weather events on a case-by-case basis.
    9. Background Concentration of Pollutants. The representative 
background concentration of pollutants shall be established in 
accordance with this subsection to develop TMDLs, WLAs calculated in the 
absence of a TMDL, or preliminary WLAs for purposes of determining the 
need for WQBELs under procedure 5 of appendix F. Background loadings may 
be accounted for in a TMDL through an allocation to a single 
``background'' category or through individual allocations to the various 
background sources.
    a. Definition of Background. ``Background'' represents all loadings 
that: (1) flow from upstream waters into the specified watershed, 
waterbody or waterbody segment for which a TMDL, WLA in the absence of a 
TMDL or preliminary WLA for the purpose of determining the need for a 
WQBEL is being developed; (2) enter the specified watershed, waterbody 
or waterbody segment through atmospheric deposition or sediment release 
or resuspension; or (3) occur within the watershed, waterbody or 
waterbody segment as a result of chemical reactions.
    b. Data considerations. When determining what available data are 
acceptable for use in calculating background, the State or Tribe should 
use best professional judgment, including consideration of the sampling 
location and the reliability of the data through comparison to reported 
analytical detection levels and quantification levels. When data in more 
than one of the data sets or categories described in section B.9.c.i 
through B.9.c.iii below exist, best professional judgment should be used 
to select the one data set that most accurately reflects or estimates 
background concentrations. Pollutant degradation and transport 
information may be considered when utilizing pollutant loading data.
    c. Calculation requirements. Except as provided below, the 
representative background concentration for a pollutant in the specified 
watershed, waterbody or waterbody segment shall be established on a 
case-by-case basis as the geometric mean of:
    i. Acceptable available water column data; or
    ii. Water column concentrations estimated through use of acceptable 
available caged or resident fish tissue data; or

[[Page 565]]

    iii. Water column concentrations estimated through use of acceptable 
available or projected pollutant loading data.
    d. Detection considerations.
    i. Commonly accepted statistical techniques shall be used to 
evaluate data sets consisting of values both above and below the 
detection level.
    ii. When all of the acceptable available data in a data set or 
category, such as water column, caged or resident fish tissue or 
pollutant loading data, are below the level of detection for a 
pollutant, then all the data for that pollutant in that data set shall 
be assumed to be zero.
    10. Effluent Flow. If WLAs are expressed as concentrations of 
pollutants, the TMDL shall also indicate the point source effluent flows 
assumed in the analyses. Mass loading limitations established in NPDES 
permits must be consistent with both the WLA and assumed effluent flows 
used in establishing the TMDL.
    11. Reserved Allocations. TMDLs may include reserved allocations of 
loading capacity to accommodate future growth and additional sources. 
Where such reserved allocations are not included in a TMDL, any 
increased loadings of the pollutant for which the TMDL was developed 
that are due to a new or expanded discharge shall not be allowed unless 
the TMDL is revised in accordance with these proceudres to include an 
allocation for the new or expanded discharge.
    C. Mixing Zones for Bioaccumulative Chemicals of Concern (BCCs). The 
following requirements shall be applied in establishing TMDLs, WLAs in 
the absence of TMDLs, and preliminary WLAs for purposes of determining 
the need for WQBELs under procedure 5 of appendix F, for BCCs:
    1. There shall be no mixing zones available for new discharges of 
BCCs to the Great Lakes System. WLAs established through TMDLs, WLAs in 
the absence of TMDLs, and preliminary WLAs for purposes of determining 
the need for WQBELs for new discharges of BCCs shall be set no higher 
than the most stringent applicable water quality criteria or values for 
the BCCs in question. This prohibition takes effect for a Great Lakes 
State or Tribe on the date EPA approves the State's or Tribe's 
submission of such prohibition or publishes a notice under 40 CFR 
132.5(f) identifying that prohibition as applying to discharges within 
the State or Federal Tribal reservation.
    2. For purposes of section C of procedure 3 of appendix F, new 
discharges are defined as: (1) A ``discharge of pollutants'' (as defined 
in 40 CFR 122.2) to the Great Lakes System from a building, structure, 
facility, or installation, the construction of which commences after the 
date the prohibition in section C.1 takes effect in that State or Tribe; 
(2) a new discharge from an existing Great Lakes discharger that 
commences after the date the prohibition in section C.1 takes effect in 
that State or Tribe; or (3) an expanded discharge from an existing Great 
Lakes discharger that commences after the date the prohibition in 
section C.1 takes effect in that State or Tribe, except for those 
expanded discharges resulting from changes in loadings of any BCC within 
the existing capacity and processes (e.g., normal operational 
variability, changes in intake water pollutants, increasing the 
production hours of the facility or adding additional shifts, or 
increasing the rate of production), and that are covered by the existing 
applicable control document. Not included within the definition of ``new 
discharge'' are new or expanded discharges of BCCs from a publicly owned 
treatment works (POTW as defined at 40 CFR 122.2) when such discharges 
are necessary to prevent a public health threat to the community (e.g., 
a situation where a community with failing septic systems is connected 
to a POTW to avert a potential public health threat from these failing 
systems). These and all other discharges of BCCs are defined as existing 
discharges.
    3. Up until November 15, 2010, mixing zones for BCCs may be allowed 
for existing discharges to the Great Lakes System pursuant to the 
procedures specified in sections D and E of this procedure.
    4. Except as provided in sections C.5 and C.6 of this procedure, 
permits issued on or after this provision takes effect in a Great Lakes 
State or Tribe shall not authorize mixing zones for existing discharges 
of BCCs to the Great Lakes System after November 15, 2010. After 
November 15, 2010, WLAs established through TMDLs, WLAs established in 
the absence of TMDLs, and preliminary WLAs for purposes of determining 
the need for WQBELs under procedure 5 of appendix F for existing 
discharges of BCCs to the Great Lakes System shall be equal to the most 
stringent applicable water quality criteria or values for the BCCs in 
question.
    5. Exception for Water Conservation. Great Lakes States and Tribes 
may grant mixing zones for any existing discharge of BCCs to the Great 
Lakes System beyond the date specified in section C.4 of this procedure 
where it can be demonstrated, on a case-by-case basis, that failure to 
grant a mixing zone would preclude water conservation measures that 
would lead to overall load reductions in BCCs, even though higher 
concentrations of BCCs occur in the effluent. Such mixing zones must 
also be consistent with sections D and E of this procedure.
    6. Exception for Technical and Economic Considerations. Great Lakes 
States and Tribes may grant mixing zones beyond the date specified in 
section C.4 of this procedure for any existing discharge of a BCC to the 
Great Lakes System upon the request of a discharger, subject to sections 
C.6.a through C.6.c below.

[[Page 566]]

    a. The State or Tribe must determine that:
    i. The discharger is in compliance with and will continue to 
implement, for the BCC in question, all applicable requirements of Clean 
Water Act sections 118, 301, 302, 303, 304, 306, 307, 401, and 402, 
including existing National Pollutant Discharge Elimination System 
(NPDES) water-quality based effluent limitations; and
    ii. The discharger has reduced and will continue to reduce the 
loading of the BCC for which a mixing zone is requested to the maximum 
extent possible, such that any additional controls or pollution 
prevention measures to reduce or ultimately eliminate the BCC discharge 
would result in unreasonable economic effects on the discharger or the 
affected community because the controls or measures are not feasible or 
cost-effective.
    b. Any mixing zone established pursuant to this section shall:
    i. Not result in any less stringent limitations than those existing 
prior to November 13, 2000;
    ii. Be no larger than necessary to account for the technical 
constraints and economic effects identified pursuant to paragraph 
C.6.a.ii above;
    iii. Meet all applicable acute and chronic aquatic life, wildlife 
and human health criteria and values within and at the edge of the 
mixing zone or be consistent with the applicable TMDL or assessment and 
remediation plan authorized under procedure 3.A.
    iv. Be accompanied, as appropriate, by a permit condition requiring 
the discharger to implement an ambient monitoring plan to ensure 
compliance with water quality standards and consistency with any 
applicable TMDL or such other strategy consistent with Section A of this 
procedure, including the evaluation of alternative means for reducing 
the BCC from other sources in the watershed; and
    v. Be limited to one permit term unless the permitting authority 
makes a new determination in accordance with this section for each 
successive permit application in which a mixing zone for the BCC is 
sought.
    c. For each draft NPDES permit that would allow a mixing zone for 
one or more BCCs after November 15, 2010, the fact sheet or statement of 
basis for the draft permit that is required to be made available through 
public notice under 40 CFR 124.6(e) shall:
    i. Specify the mixing provisions used in calculating the permit 
limits; and
    ii. Identify each BCC for which a mixing zone is proposed.
    7. Any mixing zone authorized under sections C.3, C.5 or C.6 must be 
consistent with sections D and E of this procedure, as applicable.
    D. Deriving TMDLs, WLAs, and LAs for Point and Nonpoint Sources: 
WLAs in the Absence of a TMDL; and Preliminary WLAs for Purposes of 
Determining the Need for WQBELs for OWGL. This section addresses 
conditions for deriving TMDLs for Open Waters of the Great Lakes (OWGL), 
inland lakes and other waters of the Great Lakes System with no 
appreciable flow relative to their volumes. State and Tribal procedures 
to derive TMDLs under this section must be consistent with (as 
protective as) the general conditions in section B of this procedure, 
CWA section 303(d), existing regulations (40 CFR 130.7), section C of 
this procedure, and sections D.1. through D.4 below. State and Tribal 
procedures to derive WLAs calculated in the absence of a TMDL and 
preliminary WLAs for purposes of determining the need for WQBELs under 
procedure 5 of appendix F must be consistent with sections B.9, C.1, C3 
through C.6, and D. 1 through D.4 of this procedure.
    1. Individual point source WLAs and preliminary WLAs for purposes of 
determining the need for WQBELs under procedure 5 of appendix F shall 
assume no greater dilution than one part effluent to 10 parts receiving 
water for implementation of numeric and narrative chronic criteria and 
values (including, but not limited to human cancer criteria, human 
cancer values, human noncancer values, human noncancer criteria, 
wildlife criteria, and chronic aquatic life criteria and values) unless 
an alternative mixing zone is demonstrated as appropriate in a mixing 
zone demonstration conducted pursuant to section F of this procedure. In 
no case shall a mixing zone be granted that exceeds the area where 
discharge-induced mixing occurs.
    2. Appropriate mixing zone assumptions to be used in calculating 
load allocations for nonpoint sources shall be determined, consistent 
with applicable State or Tribal requirements, on a case-by-case basis.
    3. WLAs and preliminary WLAs based on acute aquatic life criteria or 
values shall not exceed the Final Acute Value (FAV), unless a mixing 
zone demonstration is conducted and approved pursuant to section F of 
this procedure. If mixing zones from two or more proximate sources 
interact or overlap, the combined effect must be evaluated to ensure 
that applicable criteria and values will be met in the area where acute 
mixing zones overlap.
    4. In no case shall a mixing zone be granted that would likely 
jeopardize the continued existence of any endangered or threatened 
species listed under section 4 of the ESA or result in the destruction 
or adverse modification of such species' critical habitat.
    E. Deriving TMDLs, WLAs, and LAs for Point and Nonpoint Sources; 
WLAs in the Absence of a TMDL; and Preliminary WLAs for the Purposes of 
Determining the Need for WQBELs for Great Lakes Systems Tributaries and 
Connecting Channels. This section describes conditions for deriving 
TMDLs for tributaries

[[Page 567]]

and connecting channels of the Great Lakes System that exhibit 
appreciable flows relative to their volumes. State and Tribal procedures 
to derive TMDLs must be consistent with the general conditions listed in 
section B of this procedure, section C of this procedure, existing TMDL 
regulations (40 CFR 130.7) and specific conditions E.1 through E.5. 
State and Tribal procedures to derive WLAs calculated in the absence of 
a TMDL, and preliminary WLAs for purposes of determining reasonable 
potential under procedure 5 of this appendix for discharges to 
tributaries and connecting channels must be consistent with sections 
B.9, C.1, C.3 through C.6, and E.1 through E.5 of this procedure.
    1. Stream Design. These design flows must be used unless data exist 
to demonstrate that an alternative stream design flow is appropriate for 
stream-specific and pollutant-specific conditions. For purposes of 
calculating a TMDL, WLAs in the absence of a TMDL, or preliminary WLAs 
for the purposes of determining reasonable potential under procedure 5 
of this appendix, using a steady-state model, the stream design flows 
shall be:
    a. The 7-day, 10-year stream design flow (7Q10), or the 4-day, 3-
year biologically-based stream design flow for chronic aquatic life 
criteria or values;
    b. The 1-day, 10-year stream design flow (1Q10), for acute aquatic 
life criteria or values;
    c. The harmonic mean flow for human health criteria or values;
    d. The 90-day, 10-year flow (90Q10) for wildlife criteria.
    e. TMDLs, WLAs in the absence of TMDLs, and preliminary WLAs for the 
purpose of determining the need for WQBELs calculated using dynamic 
modelling do not need to incorporate the stream design flows specified 
in sections E.1.a through E.1.d of this procedure.
    2. Loading Capacity. The loading capacity is the greatest amount of 
loading that a water can receive without violating water quality 
standards. The loading capacity is initially calculated at the farthest 
downstream location in the watershed drainage basin. The maximum 
allowable loading consistent with the attainment of each applicable 
numeric criterion or value for a given pollutant is determined by 
multiplying the applicable criterion or value by the flow at the 
farthest downstream location in the tributary basin at the design flow 
condition described above. This loading is then compared to the loadings 
at sites within the basin to assure that applicable numeric criteria or 
values for a given pollutant are not exceeded at all applicable sites. 
The lowest load is then selected as the loading capacity.
    3. Polluant Degradation. TMDLs, WLAs in the absence of a TMDL and 
preliminary WLAs for purposes of determining the need for WQBELs under 
procedure 5 of appendix F shall be based on the assumption that a 
pollutant does not degrade. However, the regulatory authority may take 
into account degradation of the pollutant if each of the following 
conditions are met.
    a. Scientifically valid field studies or other relevant information 
demonstrate that degradation of the pollutant is expected to occur under 
the full range of environmental conditions expected to be encountered;
    b. Scientifically valid field studies or other relevant information 
address other factors that affect the level of pollutants in the water 
column including, but not limited to, resuspension of sediments, 
chemical speciation, and biological and chemical transformation.
    4. Acute Aquatic Life Criteria and Values. WLAs and LAs established 
in a TMDL, WLAs in the absence of a TMDL, and preliminary WLAs for the 
purpose of determining the need for WQBELs based on acute aquatic life 
criteria or values shall not exceed the FAV, unless a mixing zone 
demonstration is completed and approved pursuant to section F of this 
procedure. If mixing zones from two or more proximate sources interact 
or overlap, the combined effect must be evaluated to ensure that 
applicable criteria and values will be met in the area where any 
applicable acute mixing zones overlap. This acute WLA review shall 
include, but not be limited to, consideration of:
    a. The expected dilution under all effluent flow and concentration 
conditions at stream design flow;
    b. Maintenance of a zone of passage for aquatic organisms; and
    c. Protection of critical aquatic habitat.
    In no case shall a permitting authority grant a mixing zone that 
would likely jeopardize the continued existence of any endangered or 
threatened species listed under section 4 of the ESA or result in the 
destruction or adverse modification of such species' critical habitat.
    5. Chronic Mixing Zones. WLAs and LAs established in a TMDL, WLAs in 
the absence of a TMDL, and preliminary WLAs for the purposes of 
determining the need for WQBELs for protection of aquatic life, wildlife 
and human health from chronic effects shall be calculated using a 
dilution fraction no greater than 25 percent of the stream design flow 
unless a mixing zone demonstration pursuant to section F of this 
procedure is conducted and approved. A demonstration for a larger mixing 
zone may be provided, if approved and implemented in accordance with 
section F of this procedure. In no case shall a permitting authority 
grant a mixing zone that would likely jeopardize the continued existence 
of any endangered or threatened species listed under section 4 of the 
ESA or result in the destruction or adverse modification of such 
species' critical habitat.

[[Page 568]]

    F. Mixing Zone Demonstration Requirements.
    1. For purposes of establishing a mixing zone other than as 
specified in sections D and E above, a mixing zone demonstration must:
    a. Describe the amount of dilution occurring at the boundaries of 
the proposed mixing zone and the size, shape, and location of the area 
of mixing, including the manner in which diffusion and dispersion occur;
    b. For sources discharging to the open waters of the Great Lakes 
(OWGLs), define the location at which discharge-induced mixing ceases;
    c. Document the substrate character and geomorphology within the 
mixing zone;
    d. Show that the mixing zone does not interfere with or block 
passage of fish or aquatic life;
    e. Show that the mixing zone will be allowed only to the extent that 
the level of the pollutant permitted in the waterbody would not likely 
jeopardize the continued existence of any endangered or threatened 
species listed under section 4 of the ESA or result in the destruction 
or adverse modification of such species' critical habitat;
    f. Show that the mixing zone does not extend to drinking water 
intakes;
    g. Show that the mixing zone would not otherwise interfere with the 
designated or existing uses of the receiving water or downstream waters;
    h. Document background water quality concentrations;
    i. Show that the mixing zone does not promote undesirable aquatic 
life or result in a dominance of nuisance species; and
    j. Provide that by allowing additional mixing/dilution:
    i. Substances will not settle to form objectionable deposits;
    ii. Floating debris, oil, scum, and other matter in concentrations 
that form nuisances will not be produced; and
    iii. Objectionable color, odor, taste or turbidity will not be 
produced.
    2. In addition, the mixing zone demonstration shall address the 
following factors:
    a. Whether or not adjacent mixing zones overlap;
    b. Whether organisms would be attracted to the area of mixing as a 
result of the effluent character; and
    c. Whether the habitat supports endemic or naturally occurring 
species.
    3. The mixing zone demonstration must be submitted to EPA for 
approval. Following approval of a mixing zone demonstration consistent 
with sections F.1 and F.2, adjustment to the dilution ratio specified in 
section D.1 of this procedure shall be limited to the dilution available 
in the area where discharger-induced mixing occurs.
    4. The mixing zone demonstration shall be based on the assumption 
that a pollutant does not degrade within the proposed mixing zone, 
unless:
    a. Scientifically valid field studies or other relevant information 
demonstrate that degradation of the pollutant is expected to occur under 
the full range of environmental conditions expected to be encountered; 
and
    b. Scientifically valid field studies or other relevant information 
address other factors that affect the level of pollutants in the water 
column including, but not limited to, resuspension of sediments, 
chemical speciation, and biological and chemical transformation.

                         Procedure 4: Additivity

    The Great Lakes States and Tribes shall adopt additivity provisions 
consistent with (as protective as) this procedure.
    A. The Great Lakes States and Tribes shall adopt provisions to 
protect human health from the potential adverse additive effects from 
both the noncarcinogenic and carcinogenic components of chemical 
mixtures in effluents. For the chlorinated dibenzo-p-dioxins (CDDs) and 
chlorinated dibenzofurans (CDFs) listed in Table 1, potential adverse 
additive effects in effluents shall be accounted for in accordance with 
section B of this procedure.
    B. Toxicity Equivalency Factors (TEFs)/Bioaccumulation Equivalency 
Factors (BEFs).
    1. The TEFs in Table 1 and BEFs in Table 2 shall be used when 
calculating a 2,3,7,8-TCDD toxicity equivalence concentration in 
effluent to be used when implementing both human health noncancer and 
cancer criteria. The chemical concentration of each CDDs and CDFs in 
effluent shall be converted to a 2,3,7,8-TCDD toxicity equivalence 
concentration in effluent by (a) multiplying the chemical concentration 
of each CDDs and CDFs in the effluent by the appropriate TEF in Table 1 
below, (b) multiplying each product from step (a) by the BEF for each 
CDDs and CDFs in Table 2 below, and (c) adding all final products from 
step (b). The equation for calculating the 2,3,7,8-TCDD toxicity 
equivalence concentration in effluent is:
[GRAPHIC] [TIFF OMITTED] TR23MR95.118

where:

(TEC)tcdd=2,3,7,8-TCDD toxicity equivalence concentration in 
effluent
(C)x=concentration of total chemical x in effluent
(TEF)x=TCDD toxicity equivalency factor for x
(BEF)x=TCDD bioaccumulation equivalency factor for x

    2. The 2,3,7,8-TCDD toxicity equivalence concentration in effluent 
shall be used when developing waste load allocations under procedure 3, 
preliminary waste load allocations

[[Page 569]]

for purposes of determining reasonable potential under procedure 5, and 
for purposes of establishing effluent quality limits under procedure 5.

         Table 1--Toxicity Equivalency Factors for CDDs and CDFs
------------------------------------------------------------------------
                          Congener                               TEF
------------------------------------------------------------------------
2,3,7,8-TCDD...............................................        1.0
1,2,3,7,8-PeCDD............................................        0.5
1,2,3,4,7,8-HxCDD..........................................        0.1
1,2,3,6,7,8-HxCDD..........................................        0.1
1,2,3,7,8,9-HxCDD..........................................        0.1
1,2,3,4,6,7,8-HpCDD........................................        0.01
OCDD.......................................................        0.001
2,3,7,8-TCDF...............................................        0.1
1,2,3,7,8-PeCDF............................................        0.05
2,3,4,7,8-PeCDF............................................        0.5
1,2,3,4,7,8-HxCDF..........................................        0.1
1,2,3,6,7,8-HxCDF..........................................        0.1
2,3,4,6,7,8-HxCDF..........................................        0.1
1,2,3,7,8,9-HxCDF..........................................        0.1
1,2,3,4,6,7,8-HpCDF........................................        0.01
1,2,3,4,7,8,9-HpCDF........................................        0.01
OCDF.......................................................        0.001
------------------------------------------------------------------------


     Table 2--Bioaccumulation Equivalency Factors for CDDs and CDFs
------------------------------------------------------------------------
                          Congener                               BEF
------------------------------------------------------------------------
2,3,7,8-TCDD...............................................        1.0
1,2,3,7,8-PeCDD............................................        0.9
1,2,3,4,7,8-HxCDD..........................................        0.3
1,2,3,6,7,8-HxCDD..........................................        0.1
1,2,3,7,8,9-HxCDD..........................................        0.1
1,2,3,4,6,7,8-HpCDD........................................        0.05
OCDD.......................................................        0.01
2,3,7,8-TCDF...............................................        0.8
1,2,3,7,8-PeCDF............................................        0.2
2,3,4,7,8-PeCDF............................................        1.6
1,2,3,4,7,8-HxCDF..........................................        0.08
1,2,3,6,7,8-HxCDF..........................................        0.2
2,3,4,6,7,8-HxCDF..........................................        0.7
1,2,3,7,8,9-HxCDF..........................................        0.6
1,2,3,4,6,7,8-HpCDF........................................        0.01
1,2,3,4,7,8,9-HpCDF........................................        0.4
OCDF.......................................................        0.02
------------------------------------------------------------------------

   Procedure 5: Reasonable Potential To Exceed Water Quality Standards

    Great Lakes States and Tribes shall adopt provisions consistent with 
(as protective as) this procedure. If a permitting authority determines 
that a pollutant is or may be discharged into the Great Lakes System at 
a level which will cause, have the reasonable potential to cause, or 
contribute to an excursion above any Tier I criterion or Tier II value, 
the permitting authority shall incorporate a water quality-based 
effluent limitation (WQBEL) in an NPDES permit for the discharge of that 
pollutant. When facility-specific effluent monitoring data are 
available, the permitting authority shall make this determination by 
developing preliminary effluent limitations (PEL) and comparing those 
effluent limitations to the projected effluent quality (PEQ) of the 
discharge in accordance with the following procedures. In all cases, the 
permitting authority shall use any valid, relevant, representative 
information that indicates a reasonable potential to exceed any Tier I 
criterion or Tier II value.
    A. Developing Preliminary Effluent Limitations on the Discharge of a 
Pollutant From a Point Source.
    1. The permitting authority shall develop preliminary wasteload 
allocations (WLAs) for the discharge of the pollutant from the point 
source to protect human health, wildlife, acute aquatic life, and 
chronic aquatic life, based upon any existing Tier I criteria. Where 
there is no Tier I criterion nor sufficient data to calculate a Tier I 
criterion, the permitting authority shall calculate a Tier II value for 
such pollutant for the protection of human health, and aquatic life and 
the preliminary WLAs shall be based upon such values. Where there is 
insufficient data to calculate a Tier II value, the permitting authority 
shall apply the procedure set forth in section C of this procedure to 
determine whether data must be generated to calculate a Tier II value.
    2. The following provisions in procedure 3 of appendix F shall be 
used as the basis for determining preliminary WLAs in accordance with 
section 1 of this procedure: procedure 3.B.9, Background Concentrations 
of Pollutants; procedure 3.C, Mixing Zones for Bioaccumulative Chemicals 
of Concern (BCCs), procedures 3.C.1, and 3.C.3 through 3.C.6; procedure 
3.D, Deriving TMDLs for Discharges to Lakes (when the receiving water is 
an open water of the Great Lakes (OWGL), an inland lake or other water 
of the Great Lakes System with no appreciable flow relative to its 
volume); procedure 3.E, Deriving TMDLs, WLAs and Preliminary WLAs, and 
load allocations (LAs) for Discharges to Great Lakes System Tributaries 
(when the receiving water is a tributary or connecting channel of the 
Great Lakes that exhibits appreciable flow relative to its volume); and 
procedure 3.F, Mixing Zone Demonstration Requirements.
    3. The permitting authority shall develop PELs consistent with the 
preliminary WLAs developed pursuant to sections A.1 and A.2 of this 
procedure, and in accordance with existing State or Tribal procedures 
for converting WLAs into WQBELs. At a minimum:
    a. The PELs based upon criteria and values for the protection of 
human health and wildlife shall be expressed as monthly limitations;
    b. The PELs based upon criteria and values for the protection of 
aquatic life from chronic effects shall be expressed as either monthly 
limitations or weekly limitations; and
    c. The PELs based upon the criteria and values for the protection of 
aquatic life from

[[Page 570]]

acute effects shall be expressed as daily limitations.
    B. Determining Reasonable Potential Using Effluent Pollutant 
Concentration Data.
    If representative, facility-specific effluent monitoring data 
samples are available for a pollutant discharged from a point source to 
the waters of the Great Lakes System, the permitting authority shall 
apply the following procedures:
    1. The permitting authority shall specify the PEQ as the 95 percent 
confidence level of the 95th percentile based on a log-normal 
distribution of the effluent concentration; or the maximum observed 
effluent concentration, whichever is greater. In calculating the PEQ, 
the permitting authority shall identify the number of effluent samples 
and the coefficient of variation of the effluent data, obtain the 
appropriate multiplying factor from Table 1 of procedure 6 of appendix 
F, and multiply the maximum effluent concentration by that factor. The 
coefficient of variation of the effluent data shall be calculated as the 
ratio of the standard deviation of the effluent data divided by the 
arithmetic average of the effluent data, except that where there are 
fewer than ten effluent concentration data points the coefficient of 
variation shall be specified as 0.6. If the PEQ exceeds any of the PELs 
developed in accordance with section A.3 of this procedure, the 
permitting authority shall establish a WQBEL in a NPDES permit for such 
pollutant.
    2. In lieu of following the procedures under section B.1 of this 
procedure, the permitting authority may apply procedures consistent with 
the following:
    a. The permitting authority shall specify the PEQ as the 95th 
percentile of the distribution of the projected population of daily 
values of the facility-specific effluent monitoring data projected using 
a scientifically defensible statistical method that accounts for and 
captures the long-term daily variability of the effluent quality, 
accounts for limitations associated with sparse data sets and, unless 
otherwise shown by the effluent data set, assumes a lognormal 
distribution of the facility-specific effluent data. If the PEQ exceeds 
the PEL based on the criteria and values for the protection of aquatic 
life from acute effects developed in accordance with section A.3 of this 
procedure, the permitting authority shall establish a WQBEL in an NPDES 
permit for such pollutant;
    b. The permitting authority shall calculate the PEQ as the 95th 
percentile of the distribution of the projected population of monthly 
averages of the facility-specific effluent monitoring data using a 
scientifically defensible statistical method that accounts for and 
captures the long-term variability of the monthly average effluent 
quality, accounts for limitations associated with sparse data sets and, 
unless otherwise shown by the effluent data set, assumes a lognormal 
distribution of the facility-specific effluent data. If the PEQ exceeds 
the PEL based on criteria and values for the protection of aquatic life 
from chronic effects, human health or wildlife developed in accordance 
with section A.3 of this procedure, the permitting authority shall 
establish a WQBEL in an NPDES permit for such pollutant; and
    c. The permitting authority shall calculate the PEQ as the 95th 
percentile of the distribution of the projected population of weekly 
averages of the facility-specific effluent monitoring data using a 
scientifically defensible statistical method that accounts for and 
captures the long-term variability of the weekly average effluent 
quality, accounts for limitations associated with sparse data sets and, 
unless otherwise shown by the effluent data set, assumes a lognormal 
distribution of the facility-specific effluent data. If the PEQ exceeds 
the PEL based on criteria and values to protect aquatic life from 
chronic effects developed in accordance with section A.3 of this 
procedure, the permitting authority shall establish a WQBEL in an NPDES 
permit for such pollutant.
    C. Developing Necessary Data to Calculate Tier II Values Where Such 
Data Does Not Currently Exist.
    1. Except as provided in sections C.2, C.4, or D of this procedure, 
for each pollutant listed in Table 6 of part 132 that a permittee 
reports as known or believed to be present in its effluent, and for 
which pollutant data sufficient to calculate Tier II values for non-
cancer human health, acute aquatic life and chronic aquatic life do not 
exist, the permitting authority shall take the following actions:
    a. The permitting authority shall use all available, relevant 
information, including Quantitative Structure Activity Relationship 
information and other relevant toxicity information, to estimate ambient 
screening values for such pollutant which will protect humans from 
health effects other than cancer, and aquatic life from acute and 
chronic effects.
    b. Using the procedures specified in sections A.1 and A.2 of this 
procedure, the permitting authority shall develop preliminary WLAs for 
the discharge of the pollutant from the point source to protect human 
health, acute aquatic life, and chronic aquatic life, based upon the 
estimated ambient screening values.
    c. The permitting authority shall develop PELs in accordance with 
section A.3 of this procedure, which are consistent with the preliminary 
WLAs developed in accordance with section C.1.b of this procedure.
    d. The permitting authority shall compare the PEQ developed 
according to the procedures set forth in section B of this procedure to 
the PELs developed in accordance with

[[Page 571]]

section C.1.c of this procedure. If the PEQ exceeds any of the PELs, the 
permitting authority shall generate or require the permittee to generate 
the data necessary to derive Tier II values for noncancer human health, 
acute aquatic life and chronic aquatic life.
    e. The data generated in accordance with section C.1.d of this 
procedure shall be used in calculating Tier II values as required under 
section A.1 of this procedure. The calculated Tier II value shall be 
used in calculating the preliminary WLA and PEL under section A of this 
procedure, for purposes of determining whether a WQBEL must be included 
in the permit. If the permitting authority finds that the PEQ exceeds 
the calculated PEL, a WQBEL for the pollutant or a permit limit on an 
indicator parameter consistent with 40 CFR 122.44(d)(1)(vi)(C) must be 
included in the permit.
    2. With the exception of bioaccumulative chemicals of concern 
(BCCs), a permitting authority is not required to apply the procedures 
set forth in section C.1 of this procedure or include WQBELs to protect 
aquatic life for any pollutant listed in Table 6 of part 132 discharged 
by an existing point source into the Great Lakes System, if:
    a. There is insufficient data to calculate a Tier I criterion or 
Tier II value for aquatic life for such pollutant;
    b. The permittee has demonstrated through a biological assessment 
that there are no acute or chronic effects on aquatic life in the 
receiving water; and
    c. The permittee has demonstrated in accordance with procedure 6 of 
this appendix that the whole effluent does not exhibit acute or chronic 
toxicity.
    3. Nothing in sections C.1 or C.2 of this procedure shall preclude 
or deny the right of a permitting authority to:
    a. Determine, in the absence of the data necessary to derive a Tier 
II value, that the discharge of the pollutant will cause, have the 
reasonable potential to cause, or contribute to an excursion above a 
narrative criterion for water quality; and
    b. Incorporate a WQBEL for the pollutant into an NPDES permit.
    4. If the permitting authority develops a WQBEL consistent with 
section C.3 of this procedure, and the permitting authority demonstrates 
that the WQBEL developed under section C.3 of this procedure is at least 
as stringent as a WQBEL that would have been based upon the Tier II 
value or values for that pollutant, the permitting authority shall not 
be obligated to generate or require the permittee to generate the data 
necessary to derive a Tier II value or values for that pollutant.
    D. Consideration of Intake Pollutants in Determining Reasonable 
Potential.
    1. General.
    a. Any procedures adopted by a State or Tribe for considering intake 
pollutants in water quality-based permitting shall be consistent with 
this section and section E.
    b. The determinations under this section and section E shall be made 
on a pollutant-by-pollutant, outfall-by-outfall, basis.
    c. This section and section E apply only in the absence of a TMDL 
applicable to the discharge prepared by the State or Tribe and approved 
by EPA, or prepared by EPA pursuant to 40 CFR 130.7(d), or in the 
absence of an assessment and remediation plan submitted and approved in 
accordance with procedure 3.A. of appendix F. This section and section E 
do not alter the permitting authority's obligation under 40 CFR 
122.44(d)(vii)(B) to develop effluent limitations consistent with the 
assumptions and requirements of any available WLA for the discharge, 
which is part of a TMDL prepared by the State or Tribe and approved by 
EPA pursuant to 40 CFR 130.7, or prepared by EPA pursuant to 40 CFR 
130.7(d).
    2. Definition of Same Body of Water.
    a. This definition applies to this section and section E of this 
procedure.
    b. An intake pollutant is considered to be from the same body of 
water as the discharge if the permitting authority finds that the intake 
pollutant would have reached the vicinity of the outfall point in the 
receiving water within a reasonable period had it not been removed by 
the permittee. This finding may be deemed established if:
    i. The background concentration of the pollutant in the receiving 
water (excluding any amount of the pollutant in the facility's 
discharge) is similar to that in the intake water;
    ii. There is a direct hydrological connection between the intake and 
discharge points; and
    iii. Water quality characteristics (e.g., temperature, Ph, hardness) 
are similar in the intake and receiving waters.
    c. The permitting authority may also consider other site-specific 
factors relevant to the transport and fate of the pollutant to make the 
finding in a particular case that a pollutant would or would not have 
reached the vicinity of the outfall point in the receiving water within 
a reasonable period had it not been removed by the permittee.
    d. An intake pollutant from groundwater may be considered to be from 
the same body of water if the permitting authority determines that the 
pollutant would have reached the vicinity of the outfall point in the 
receiving water within a reasonable period had it not been removed by 
the permittee, except that such a pollutant is not from the same body of 
water if the groundwater contains the pollutant partially or entirely 
due to human activity, such as industrial, commercial, or municipal 
operations, disposed actions, or treatment processes.

[[Page 572]]

    e. An intake pollutant is the amount of a pollutant that is present 
in waters of the United States (including groundwater as provided in 
section D.2.d of this procedure) at the time it is withdrawn from such 
waters by the discharger or other facility (e.g., public water supply) 
supplying the discharger with intake water.
    3. Reasonable Potential Determination.
    a. The permitting authority may use the procedure described in this 
section of procedure 5 in lieu of procedures 5.A through C provided the 
conditions specified below are met.
    b. The permitting authority may determine that there is no 
reasonable potential for the discharge of an identified intake pollutant 
or pollutant parameter to cause or contribute to an excursion above a 
narrative or numeric water quality criterion within an applicable water 
quality standard where a discharger demonstrates to the satisfaction of 
the permitting authority (based upon information provided in the permit 
application or other information deemed necessary by the permitting 
authority) that:
    i. The facility withdraws 100 percent of the intake water containing 
the pollutant from the same body of water into which the discharge is 
made;
    ii. The facility does not contribute any additional mass of the 
identified intake pollutant to its wastewater;
    iii. The facility does not alter the identified intake pollutant 
chemically or physically in a manner that would cause adverse water 
quality impacts to occur that would not occur if the pollutants were 
left in-stream;
    iv. The facility does not increase the identified intake pollutant 
concentration, as defined by the permitting authority, at the edge of 
the mixing zone, or at the point of discharge if a mixing zone is not 
allowed, as compared to the pollutant concentration in the intake water, 
unless the increased concentration does not cause or contribute to an 
excursion above an applicable water quality standard; and
    v. The timing and location of the discharge would not cause adverse 
water quality impacts to occur that would not occur if the identified 
intake pollutant were left in-stream.
    c. Upon a finding under section D.3.b of this procedure that a 
pollutant in the discharge does not cause, have the reasonable potential 
to cause, or contribute to an excursion above an applicable water 
quality standard, the permitting authority is not required to include a 
WQBEL for the identified intake pollutant in the facility's permit, 
provided:
    i. The NPDES permit fact sheet or statement of basis includes a 
specific determination that there is no reasonable potential for the 
discharge of an identified intake pollutant to cause or contribute to an 
excursion above an applicable narrative or numeric water quality 
criterion and references appropriate supporting documentation included 
in the administrative record;
    ii. The permit requires all influent, effluent, and ambient 
monitoring necessary to demonstrate that the conditions in section D.3.b 
of this procedure are maintained during the permit term; and
    iii. The permit contains a reopener clause authorizing modification 
or revocation and reissuance of the permit if new information indicates 
changes in the conditions in section D.3.b of this procedure.
    d. Absent a finding under section D.3.b of this procedure that a 
pollutant in the discharge does not cause, have the reasonable potential 
to cause, or contribute to an excursion above an applicable water 
quality standard, the permitting authority shall use the procedures 
under sections 5.A through C of this procedure to determine whether a 
discharge causes, has the reasonable potential to cause, or contribute 
to an excursion above an applicable narrative or numeric water quality 
criterion.
    E. Consideration of Intake Pollutants in Establishing WQBELs.
    1. General. This section applies only when the concentration of the 
pollutant of concern upstream of the discharge (as determined using the 
provisions in procedure 3.B.9 of appendix F) exceeds the most stringent 
applicable water quality criterion for that pollutant.
    2. The requirements of sections D.1-D.2 of this procedure shall also 
apply to this section.
    3. Intake Pollutants from the Same Body of Water.
    a. In cases where a facility meets the conditions in sections 
D.3.b.i and D.3.b.iii through D.3.b.v of this procedure, the permitting 
authority may establish effluent limitations allowing the facility to 
discharge a mass and concentration of the pollutant that are no greater 
than the mass and concentration of the pollutant identified in the 
facility's intake water (``no net addition limitations''). The permit 
shall specify how compliance with mass and concentration limitations 
shall be assessed. No permit may authorize ``no net addition 
limitations'' which are effective after March 23, 2007. After that date, 
WQBELs shall be established in accordance with procedure 5.F.2 of 
appendix F.
    b. Where proper operation and maintenance of a facility's treatment 
system results in removal of a pollutant, the permitting authority may 
establish limitations that reflect the lower mass and/or concentration 
of the pollutant achieved by such treatment, taking into account the 
feasibility of establishing such limits.

[[Page 573]]

    c. For pollutants contained in intake water provided by a water 
system, the concentration of the intake pollutant shall be determined at 
the point where the raw water supply is removed from the same body of 
water, except that it shall be the point where the water enters the 
water supplier's distribution system where the water treatment system 
removes any of the identified pollutants from the raw water supply. Mass 
shall be determined by multiplying the concentration of the pollutant 
determined in accordance with this paragraph by the volume of the 
facility's intake flow received from the water system.
    4. Intake Pollutants from a Different Body of Water. Where the 
pollutant in a facility's discharge originates from a water of the 
United States that is not the same body of water as the receiving water 
(as determined in accordance with section D.2 of this procedure), WQBELs 
shall be established based upon the most stringent applicable water 
quality criterion for that pollutant.
    5. Multiple Sources of Intake Pollutants. Where a facility 
discharges intake pollutants that originate in part from the same body 
of water, and in part from a different body of water, the permitting 
authority may apply the procedures of sections E.3 and E.4 of this 
procedure to derive an effluent limitation reflecting the flow-weighted 
average of each source of the pollutant, provided that adequate 
monitoring to determine compliance can be established and is included in 
the permit.
    F. Other Applicable Conditions.
    1. In addition to the above procedures, effluent limitations shall 
be established to comply with all other applicable State, Tribal and 
Federal laws and regulations, including technology-based requirements 
and antidegradation policies.
    2. Once the permitting authority has determined in accordance with 
this procedure that a WQBEL must be included in an NPDES permit, the 
permitting authority shall:
    a. Rely upon the WLA established for the point source either as part 
of any TMDL prepared under procedure 3 of this appendix and approved by 
EPA pursuant to 40 CFR 130.7, or as part of an assessment and 
remediation plan developed and approved in accordance with procedure 3.A 
of this appendix, or, in the absence of such TMDL or plan, calculate 
WLAs for the protection of acute and chronic aquatic life, wildlife and 
human health consistent with the provisions referenced in section A.1 of 
this procedure for developing preliminary wasteload allocations, and
    b. Develop effluent limitations consistent with these WLAs in 
accordance with existing State or Tribal procedures for converting WLAs 
into WQBELs.
    3. When determining whether WQBELs are necessary, information from 
chemical-specific, whole effluent toxicity and biological assessments 
shall be considered independently.
    4. If the geometric mean of a pollutant in fish tissue samples 
collected from a waterbody exceeds the tissue basis of a Tier I 
criterion or Tier II value, after consideration of the variability of 
the pollutant's bioconcentration and bioaccumulation in fish, each 
facility that discharges detectable levels of such pollutant to that 
water has the reasonable potential to cause or contribute to an 
excursion above a Tier I criteria or a Tier II value and the permitting 
authority shall establish a WQBEL for such pollutant in the NPDES permit 
for such facility.

            Procedure 6: Whole Effluent Toxicity Requirements

    The Great Lakes States and Tribes shall adopt provisions consistent 
with (as protective as) procedure 6 of appendix F of part 132.
    The following definitions apply to this part:
    Acute toxic unit (TUa). 100/LC50 where the 
LC50 is expressed as a percent effluent in the test medium of 
an acute whole effluent toxicity (WET) test that is statistically or 
graphically estimated to be lethal to 50 percent of the test organisms.
    Chronic toxic unit (TUc). 100/NOEC or 100/
IC25, where the NOEC and IC25 are expressed as a 
percent effluent in the test medium.
    Inhibition concentration 25 (IC25). The toxicant 
concentration that would cause a 25 percent reduction in a non-quantal 
biological measurement for the test population. For example, the 
IC25 is the concentration of toxicant that would cause a 25 
percent reduction in mean young per female or in growth for the test 
population.
    No observed effect concentration (NOEC). The highest concentration 
of toxicant to which organisms are exposed in a full life-cycle or 
partial life-cycle (short-term) test, that causes no observable adverse 
effects on the test organisms (i.e., the highest concentration of 
toxicant in which the values for the observed responses are not 
statistically significantly different from the controls).
    A. Whole Effluent Toxicity Requirements. The Great Lakes States and 
Tribes shall adopt whole effluent toxicity provisions consistent with 
the following:
    1. A numeric acute WET criterion of 0.3 acute toxic units 
(TUa) measured pursuant to test methods in 40 CFR part 136, 
or a numeric interpretation of a narrative criterion establishing that 
0.3 TUa measured pursuant to test methods in 40 CFR part 136 
is necessary to protect aquatic life from acute effects of WET. At the 
discretion of the permitting authority, the foregoing requirement shall 
not apply in an acute mixing zone that is sized in accordance with EPA-
approved State and Tribal methods.

[[Page 574]]

    2. A numeric chronic WET criterion of one chronic toxicity unit 
(TUc) measured pursuant to test methods in 40 CFR part 136, 
or a numeric interpretation of a narrative criterion establishing that 
one TUc measured pursuant to test methods in 40 CFR part 136 
is necessary to protect aquatic life from the chronic effects of WET. At 
the discretion of the permitting authority, the foregoing requirements 
shall not apply within a chronic mixing zone consistent with: (a) 
procedures 3.D.1 and 3.D.4, for discharges to the open of the Great 
Lakes (OWGL), inland lakes and other waters of the Great Lakes System 
with no appreciable flow relative to their volume, or (b) procedure 
3.E.5 for discharges to tributaries and connecting channels of the Great 
Lakes System.
    B. WET Test Methods. All WET tests performed to implement or 
ascertain compliance with this procedure shall be performed in 
accordance with methods established in 40 CFR part 136.
    C. Permit Conditions.
    1. Where a permitting authority determines pursuant to section D of 
this procedure that the WET of an effluent is or may be discharged at a 
level that will cause, have the reasonable potential to cause, or 
contribute to an excursion above any numeric WET criterion or narrative 
criterion within a State's or Tribe's water quality standards, the 
permitting authority:
    a. Shall (except as provided in section C.1.e of this procedure) 
establish a water quality-based effluent limitation (WQBEL) or WQBELs 
for WET consistent with section C.1.b of this procedure;
    b. Shall calculate WQBELs pursuant to section C.1.a. of this 
procedure to ensure attainment of the State's or Tribe's chronic WET 
criteria under receiving water flow conditions described in procedures 
3.E.1.a (or where applicable, with procedure 3.E.1.e) for Great Lakes 
System tributaries and connecting channels, and with mixing zones no 
larger than allowed pursuant to section A.2. of this procedure. Shall 
calculate WQBELs to ensure attainment of the State's or Tribe's acute 
WET criteria under receiving water flow conditions described in 
procedure 3.E.1.b (or where applicable, with procedure 3.E.1.e) for 
Great Lakes System tributaries and connecting channels, with an 
allowance for mixing zones no greater than specified pursuant to section 
A.1 of this procedure.
    c. May specify in the NPDES permit the conditions under which a 
permittee would be required to perform a toxicity reduction evaluation.
    d. May allow with respect to any WQBEL established pursuant to 
section C.1.a of this procedure an appropriate schedule of compliance 
consistent with procedure 9 of appendix F; and
    e. May decide on a case-by-case basis that a WQBEL for WET is not 
necessary if the State's or Tribe's water quality standards do not 
contain a numeric criterion for WET, and the permitting authority 
demonstrates in accordance with 40 CFR 122.44(d)(1)(v) that chemical-
specific effluent limits are sufficient to ensure compliance with 
applicable criteria.
    2. Where a permitting authority lacks sufficient information to 
determine pursuant to section D of this procedure whether the WET of an 
effluent is or may be discharged at levels that will cause, have the 
reasonable potential to cause, or contribute to an excursion above any 
numeric WET criterion or narrative criterion within a State's or Tribe's 
water quality standards, then the permitting authority should consider 
including in the NPDES permit appropriate conditions to require 
generation of additional data and to control toxicity if found, such as:
    a. WET testing requirements to generate the data needed to 
adequately characterize the toxicity of the effluent to aquatic life;
    b. Language requiring a permit reopener clause to establish WET 
limits if any toxicity testing data required pursuant to section C.2.a 
of this procedure indicate that the WET of an effluent is or may be 
discharged at levels that will cause, have the reasonable potential to 
cause, or contribute to an excursion above any numeric WET criterion or 
narrative criterion within a State's or Tribe's water quality standards.
    3. Where sufficient data are available for a permitting authority to 
determine pursuant to section D of this procedure that the WET of an 
effluent neither is nor may be discharged at a level that will cause, 
have the reasonable potential to cause, or contribute to an excursion 
above any numeric WET criterion or narrative criterion within a State's 
or Tribe's water quality standards, the permitting authority may include 
conditions and limitations described in section C.2 of this procedure at 
its discretion.
    D. Reasonable Potential Determinations. The permitting authority 
shall take into account the factors described in 40 CFR 122.44(d)(1)(ii) 
and, where representative facility-specific WET effluent data are 
available, apply the following requirements in determining whether the 
WET of an effluent is or may be discharged at a level that will cause, 
have the reasonable potential to cause, or contribute to an excursion 
above any numeric WET criterion or narrative criterion within a State's 
or Tribe's water quality standards.
    1. The permitting authority shall characterize the toxicity of the 
discharge by:
    a. Either averaging or using the maximum of acute toxicity values 
collected within the same day for each species to represent one daily 
value. The maximum of all daily values for the most sensitive species 
tested is used for reasonable potential determinations;

[[Page 575]]

    b. Either averaging or using the maximum of chronic toxicity values 
collected within the same calendar month for each species to represent 
one monthly value. The maximum of such values, for the most sensitive 
species tested, is used for reasonable potential determinations:
    c. Estimating the toxicity values for the missing endpoint using a 
default acute-chronic ratio (ACR) of 10, when data exist for either 
acute WET or chronic WET, but not for both endpoints.
    2. The WET of an effluent is or may be discharged at a level that 
will cause, have the reasonable potential to cause, or contribute to an 
excursion above any numeric acute WET criterion or numeric 
interpretation of a narrative criterion within a State's or Tribe's 
water quality standards, when effluent-specific information demonstrates 
that:

(TUa effluent) (B) (effluent flow/(Qad+effluent 
flow))AC

Where TUa effluent is the maximum measured acute toxicity of 
100 percent effluent determined pursuant to section D.1.a. of this 
procedure, B is the multiplying factor taken from Table F6-1 of this 
procedure to convert the highest measured effluent toxicity value to the 
estimated 95th percentile toxicity value for the discharge, effluent 
flow is the same effluent flow used to calculate the preliminary 
wasteload allocations (WLAs) for individual pollutants to meet the acute 
criteria and values for those pollutants, AC is the numeric acute WET 
criterion or numeric interpretation of a narrative criterion established 
pursuant to section A.1 of this procedure and expressed in 
TUa, and Qad is the amount of the receiving water available 
for dilution calculated using: (i) the specified design flow(s) for 
tributaries and connecting channels in section C.1.b of this procedure, 
or where appropriate procedure 3.E.1.e of appendix F, and using EPA-
approved State and Tribal procedures for establishing acute mixing zones 
in tributaries and connecting channels, or (ii) the EPA-approved State 
and Tribal procedures for establishing acute mixing zones in OWGLs. 
Where there are less than 10 individual WET tests, the multiplying 
factor taken from Table F6-1 of this procedure shall be based on a 
coefficient of variation (CV) or 0.6. Where there are 10 or more 
individual WET tests, the multiplying factor taken from Table F6-1 shall 
be based on a CV calculated as the standard deviation of the acute 
toxicity values found in the WET tests divided by the arithmetic mean of 
those toxicity values.
    3. The WET of an effluent is or may be discharged at a level that 
will cause, have the reasonable potential to cause, or contribute to an 
excursion above any numeric chronic WET criterion or numeric 
interpretation of a narrative criterion within a State's or Tribe's 
water quality standards, when effluent-specific information demonstrates 
that:

(TUc effluent) (B) (effluent flow/Qad+effluent 
flow))CC

Where TUc effluent is the maximum measured chronic toxicity 
value of 100 percent effluent determined in accordance with section 
D.1.b. of this procedure, B is the multiplying factor taken from Table 
F6-1 of this procedure, effluent flow is the same effluent flow used to 
calculate the preliminary WLAs for individual pollutants to meet the 
chronic criteria and values for those pollutants, CC is the numeric 
chronic WET criterion or numeric interpretation of a narrative criterion 
established pursuant to section A.2 of this procedure and expressed in 
TUc, and Qad
is the amount of the receiving water available for dilution calculated 
using: (i) the design flow(s) for tributaries and connecting channels 
specified in procedure 3.E.1.a of appendix F, and where appropriate 
procedure 3.E.1.e of appendix F, and in accordance with the provisions 
of procedure 3.E.5 for chronic mixing zones, or (ii) procedures 3.D.1 
and 3.D.4 for discharges to the OWGLs. Where there are less than 10 
individual WET tests, the multiplying factor taken from Table F6-1 of 
this procedure shall be based on a CV of 0.6. Where there are 10 more 
individual WET tests, the multiplying factor taken from Table F6-1 of 
this procedure shall be based on a CV calculated as the standard 
deviation of the WET tests divided by the arithmetic mean of the WET 
tests.

                                              Table F6-1--Reasonable Potential Multiplying Factors: 95% Confidence Level and 95% Probability Basis
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                               Coefficient of variation
                  Number of Samples                  -------------------------------------------------------------------------------------------------------------------------------------------
                                                       0.1    0.2    0.3    0.4    0.5    0.6    0.7    0.8    0.9    1.0    1.1    1.2    1.3    1.4    1.5    1.6    1.7    1.8    1.9    2.0
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
1...................................................    1.4    1.9    2.6    3.6    4.7    6.2    8.0   10.1   12.6   15.5   18.7   22.3   26.4   30.8   35.6   40.7   46.2   52.1   58.4   64.9
2...................................................    1.3    1.6    2.0    2.5    3.1    3.8    4.6    5.4    6.4    7.4    8.5    9.7   10.9   12.2   13.6   15.0   16.4   17.9   19.5   21.1
3...................................................    1.2    1.5    1.8    2.1    2.5    3.0    3.5    4.0    4.6    5.2    5.8    6.5    7.2    7.9    8.6    9.3   10.0   10.8   11.5   12.3
4...................................................    1.2    1.4    1.7    1.9    2.2    2.6    2.9    3.3    3.7    4.2    4.6    5.0    5.5    6.0    6.4    6.9    7.4    7.8    8.3    8.8
5...................................................    1.2    1.4    1.6    1.8    2.1    2.3    2.6    2.9    3.2    3.6    3.9    4.2    4.5    4.9    5.2    5.6    5.9    6.2    6.6    6.9
6...................................................    1.1    1.3    1.5    1.7    1.9    2.1    2.4    2.6    2.9    3.1    3.4    3.7    3.9    4.2    4.5    4.7    5.0    5.2    5.5    5.7
7...................................................    1.1    1.3    1.4    1.6    1.8    2.0    2.2    2.4    2.6    2.8    3.1    3.3    3.5    3.7    3.9    4.1    4.3    4.5    4.7    4.9
8...................................................    1.1    1.3    1.4    1.6    1.7    1.9    2.1    2.3    2.4    2.6    2.8    3.0    3.2    3.3    3.5    3.7    3.9    4.0    4.2    4.3
9...................................................    1.1    1.2    1.4    1.5    1.7    1.8    2.0    2.1    2.3    2.4    2.6    2.8    2.9    3.1    3.2    3.4    3.5    3.6    3.8    3.9
10..................................................    1.1    1.2    1.3    1.5    1.6    1.7    1.9    2.0    2.2    2.3    2.4    2.6    2.7    2.8    3.0    3.1    3.2    3.3    3.4    3.6

[[Page 576]]

 
11..................................................    1.1    1.2    1.3    1.4    1.6    1.7    1.8    1.9    2.1    2.2    2.3    2.4    2.5    2.7    2.8    2.9    3.0    3.1    3.2    3.3
12..................................................    1.1    1.2    1.3    1.4    1.5    1.6    1.7    1.9    2.0    2.1    2.2    2.3    2.4    2.5    2.6    2.7    2.8    2.9    3.0    3.0
13..................................................    1.1    1.2    1.3    1.4    1.5    1.6    1.7    1.8    1.9    2.0    2.1    2.2    2.3    2.4    2.5    2.5    2.6    2.7    2.8    2.9
14..................................................    1.1    1.2    1.3    1.4    1.4    1.5    1.6    1.7    1.8    1.9    2.0    2.1    2.2    2.3    2.3    2.4    2.5    2.6    2.6    2.7
15..................................................    1.1    1.2    1.2    1.3    1.4    1.5    1.6    1.7    1.8    1.8    1.9    2.0    2.1    2.2    2.2    2.3    2.4    2.4    2.5    2.5
16..................................................    1.1    1.1    1.2    1.3    1.4    1.5    1.6    1.6    1.7    1.8    1.9    1.9    2.0    2.1    2.1    2.2    2.3    2.3    2.4    2.4
17..................................................    1.1    1.1    1.2    1.3    1.4    1.4    1.5    1.6    1.7    1.7    1.8    1.9    1.9    2.0    2.0    2.1    2.2    2.2    2.3    2.3
18..................................................    1.1    1.1    1.2    1.3    1.3    1.4    1.5    1.6    1.6    1.7    1.7    1.8    1.9    1.9    2.0    2.0    2.1    2.1    2.2    2.2
19..................................................    1.1    1.1    1.2    1.3    1.3    1.4    1.5    1.5    1.6    1.6    1.7    1.8    1.8    1.9    1.9    2.0    2.0    2.0    2.1    2.1
20..................................................    1.1    1.1    1.2    1.2    1.3    1.4    1.4    1.5    1.5    1.6    1.6    1.7    1.7    1.8    1.8    1.9    1.9    2.0    2.0    2.0
30..................................................    1.0    1.1    1.1    1.1    1.2    1.2    1.2    1.3    1.3    1.3    1.3    1.4    1.4    1.4    1.4    1.5    1.5    1.5    1.5    1.5
40..................................................    1.0    1.0    1.1    1.1    1.1    1.1    1.1    1.1    1.2    1.2    1.2    1.2    1.2    1.2    1.2    1.2    1.2    1.2    1.3    1.3
50..................................................    1.0    1.0    1.0    1.0    1.0    1.0    1.0    1.1    1.1    1.1    1.1    1.1    1.1    1.1    1.1    1.1    1.1    1.1    1.1    1.1
60..................................................    1.0    1.0    1.0    1.0    1.0    1.0    1.0    1.0    1.0    1.0    1.0    1.0    1.0    1.0    1.0    1.0    1.0    1.0    1.0    1.0
70..................................................    1.0    1.0    1.0    1.0    1.0    0.9    0.9    0.9    0.9    0.9    0.9    0.9    0.9    0.9    0.9    0.9    0.9    0.9    0.9    0.9
80..................................................    1.0    1.0    1.0    0.9    0.9    0.9    0.9    0.9    0.9    0.9    0.9    0.9    0.9    0.9    0.8    0.8    0.8    0.8    0.8    0.8
90..................................................    1.0    1.0    0.9    0.9    0.9    0.9    0.9    0.9    0.9    0.8    0.8    0.8    0.8    0.8    0.8    0.8    0.8    0.8    0.8    0.8
100.................................................    1.0    1.0    0.9    0.9    0.9    0.9    0.9    0.8    0.8    0.8    0.8    0.8    0.8    0.8    0.8    0.8    0.8    0.7    0.7    0.7
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

                       Procedure 7: Loading Limits

    The Great Lakes States and Tribes shall adopt provisions consistent 
with (as protective as) this procedure.
    Whenever a water quality-based effluent limitation (WQBEL) is 
developed, the WQBEL shall be expressed as both a concentration value 
and a corresponding mass loading rate.
    A. Both mass and concentration limits shall be based on the same 
permit averaging periods such as daily, weekly, or monthly averages, or 
in other appropriate permit averaging periods.
    B. The mass loading rates shall be calculated using effluent flow 
rates that are consistent with those used in establishing the WQBELs 
expressed in concentration.

    Procedure 8: Water Quality-based Effluent Limitations Below the 
                          Quantification Level

    The Great Lakes States and Tribes shall adopt provisions consistent 
with (as protective as) this procedure.
    When a water quality-based effluent limitation (WQBEL) for a 
pollutant is calculated to be less than the quantification level:
    A. Permit Limits. The permitting authority shall designate as the 
limit in the NPDES permit the WQBEL exactly as calculated.
    B. Analytical Method and Quantification Level.
    1. The permitting authority shall specify in the permit the most 
sensitive, applicable, analytical method, specified in or approved under 
40 CFR part 136, or other appropriate method if one is not available 
under 40 CFR part 136, to be used to monitor for the presence and amount 
in an effluent of the pollutant for which the WQBEL is established; and 
shall specify in accordance with section B.2 of this procedure, the 
quantification level that can be achieved by use of the specified 
analytical method.
    2. The quantification level shall be the minimum level (ML) 
specified in or approved under 40 CFR part 136 for the method for that 
pollutant. If no such ML exists, or if the method is not specified or 
approved under 40 CFR part 136, the quantification level shall be the 
lowest quantifiable level practicable. The permitting authority may 
specify a higher quantification level if the permittee demonstrates that 
a higher quantification level is appropriate because of effluent-
specific matrix interference.
    3. The permit shall state that, for the purpose of compliance 
assessment, the analytical method specified in the permit shall be used 
to monitor the amount of pollutant in an effluent down to the 
quantification level, provided that the analyst has complied with the 
specified quality assurance/quality control procedures in the relevant 
method.
    4. The permitting authority shall use applicable State and Tribal 
procedures to average and account for monitoring data. The permitting 
authority may specify in the permit the value to be used to interpret 
sample values below the quantification level.
    C. Special Conditions. The permit shall contain a reopener clause 
authorizing modification or revocation and reissuance of the permit if 
new information generated as a result of special conditions included in 
the permit indicates that presence of the pollutant in the discharge at 
levels above the WQBEL. Special conditions that may be included in the 
permit include, but are not limited to, fish tissue sampling, whole 
effluent toxicity (WET) tests, limits and/or monitoring requirements on 
internal waste streams, and

[[Page 577]]

monitoring for surrogate parameters. Data generated as a result of 
special conditions can be used to reopen the permit to establish more 
stringent effluent limits or conditions, if necessary.
    D. Pollutant Minimization Program. The permitting authority shall 
include a condition in the permit requiring the permittee to develop and 
conduct a pollutant minimization program for each pollutant with a WQBEL 
below the quantification level. The goal of the pollutant minimization 
program shall be to maintain the effluent at or below the WQBEL. In 
addition, States and Tribes may consider cost-effectiveness when 
evaluating the requirements of a PMP. The pollutant minimization program 
shall include, but is not limited to, the following:
    1. An annual review and semi-annual monitoring of potential sources 
of the pollutant, which may include fish tissue monitoring and other 
bio-uptake sampling;
    2. Quarterly monitoring for the pollutant in the influent to the 
wastewater treatment system;
    3. Submittal of a control strategy designed to proceed toward the 
goal of maintaining the effluent below the WQBEL;
    4. Implementation of appropriate, cost-effective control measures 
consistent with the control strategy; and
    5. An annual status report that shall be sent to the permitting 
authority including:
    a. All minimization program monitoring results for the previous 
year;
    b. A list of potential sources of the pollutant; and
    c. A summary of all action undertaken pursuant to the control 
strategy.
    6. Any information generated as a result of procedure 8.D can be 
used to support a request for subsequent permit modifications, including 
revisions to (e.g., more or less frequent monitoring), or removal of the 
requirements of procedure 8.D, consistent with 40 CFR 122.44, 122.62 and 
122.63.

                    Procedure 9: Compliance Schedules

    The Great Lakes States and Tribes shall adopt provisions consistent 
with (as protective as) procedure 9 of appendix F of part 132.
    A. Limitations for New Great Lakes Dischargers. When a permit issued 
on or after March 23, 1997 to a new Great Lakes discharger (defined in 
Part 132.2) contains a water quality-based effluent limitation (WQBEL), 
the permittee shall comply with such a limitation upon the commencement 
of the discharge.
    B. Limitations for Existing Great Lakes Dischargers.
    1. Any existing permit that is reissued or modified on or after 
March 23, 1997 to contain a new or more restrictive WQBEL may allow a 
reasonable period of time, up to five years from the date of permit 
issuance or modification, for the permittee to comply with that limit, 
provided that the Tier I criterion or whole effluent toxicity (WET) 
criterion was adopted (or, in the case of a narrative criterion, Tier II 
value, or Tier I criterion derived pursuant to the methodology in 
appendix A of part 132, was newly derived) after July 1, 1977.
    2. When the compliance schedule established under paragraph 1 goes 
beyond the term of the permit, an interim permit limit effective upon 
the expiration date shall be included in the permit and addressed in the 
permit's fact sheet or statement of basis. The administrative record for 
the permit shall reflect the final limit and its compliance date.
    3. If a permit establishes a schedule of compliance under paragraph 
1 which exceeds one year from the date of permit issuance or 
modification, the schedule shall set forth interim requirements and 
dates for their achievement. The time between such interim dates may not 
exceed one year. If the time necessary for completion of any interim 
requirement is more than one year and is not readily divisible into 
stages for completion, the permit shall require, at a minimum, specified 
dates for annual submission of progress reports on the status of any 
interim requirements.
    C. Delayed Effectiveness of Tier II Limitations for Existing Great 
Lakes Discharges.
    1. Whenever a limit (calculated in accordance with Procedure 3) 
based upon a Tier II value is included in a reissued or modified permit 
for an existing Great Lakes discharger, the permit may provide a 
reasonable period of time, up to two years, in which to provide 
additional studies necessary to develop a Tier I criterion or to modify 
the Tier II value. In such cases, the permit shall require compliance 
with the Tier II limitation within a reasonable period of time, no later 
than five years after permit issuance or modification, and contain a 
reopener clause.
    2. The reopener clause shall authorize permit modifications if 
specified studies have been completed by the permittee or provided by a 
third-party during the time allowed to conduct the specified studies, 
and the permittee or a third-party demonstrates, through such studies, 
that a revised limit is appropriate. Such a revised limit shall be 
incorporated through a permit modification and a reasonable time period, 
up to five years, shall be allowed for compliance. If incorporated prior 
to the compliance date of the original Tier II limitation, any such 
revised limit shall not be considered less-stringent for purposes of the 
anti-backsliding provisions of section 402(o) of the Clean Water Act.
    3. If the specified studies have been completed and do not 
demonstrate that a revised limit is appropriate, the permitting 
authority may provide a reasonable additional period of time, not to 
exceed five years with

[[Page 578]]

which to achieve compliance with the original effluent limitation.
    4. Where a permit is modified to include new or more stringent 
limitations, on a date within five years of the permit expiration date, 
such compliance schedules may extend beyond the term of a permit 
consistent with section B.2 of this procedure.
    5. If future studies (other than those conducted under paragraphs 1, 
2, or 3 above) result in a Tier II value being changed to a less 
stringent Tier II value or Tier I criterion, after the effective date of 
a Tier II-based limit, the existing Tier II-based limit may be revised 
to be less stringent if:
    (a) It complies with sections 402(o) (2) and (3) of the CWA; or,
    (b) In non-attainment waters, where the existing Tier II limit was 
based on procedure 3, the cumulative effect of revised effluent 
limitation based on procedure 3 of this appendix will assure compliance 
with water quality standards; or,
    (c) In attained waters, the revised effluent limitation complies 
with the State or Tribes' antidegradation policy and procedures.

[60 FR 15387, Mar. 23, 1995, as amended at 63 FR 20110, Apr. 23, 1998; 
65 FR 67650, Nov. 13, 2000]



PART 133_SECONDARY TREATMENT REGULATION--Table of Contents




Sec.
133.100 Purpose.
133.101 Definitions.
133.102 Secondary treatment.
133.103 Special considerations.
133.104 Sampling and test procedures.
133.105 Treatment equivalent to secondary treatment.

    Authority: Secs. 301(b)(1)(B), 304(d)(1), 304(d)(4), 308, and 501 of 
the Federal Water Pollution Control Act as amended by the Federal Water 
Pollution Control Act Amendments of 1972, the Clean Water Act of 1977, 
and the Municipal Wastewater Treatment Construction Grant Amendments of 
1981; 33 U.S.C. 1311(b)(1)(B), 1314(d) (1) and (4), 1318, and 1361; 86 
Stat. 816, Pub. L. 92-500; 91 Stat. 1567, Pub. L. 95-217; 95 Stat. 1623, 
Pub. L. 97-117.

    Source: 49 FR 37006, Sept. 20, 1984, unless otherwise noted.



Sec. 133.100  Purpose.

    This part provides information on the level of effluent quality 
attainable through the application of secondary or equivalent treatment.



Sec. 133.101  Definitions.

    Terms used in this part are defined as follows:
    (a) 7-day average. The arithmetic mean of pollutant parameter values 
for samples collected in a period of 7 consecutive days.
    (b) 30-day average. The arithmetic mean of pollutant parameter 
values of samples collected in a period of 30 consecutive days.
    (c) Act. The Clean Water Act (33 U.S.C. 1251 et seq., as amended).
    (d) BOD. The five day measure of the pollutant parameter biochemical 
oxygen demand (BOD).
    (e) CBOD5. The five day measure of the pollutant 
parameter carbonaceous biochemical oxygen demand (CBOD5).
    (f) Effluent concentrations consistently achievable through proper 
operation and maintenance. (1) For a given pollutant parameter, the 95th 
percentile value for the 30-day average effluent quality achieved by a 
treatment works in a period of at least two years, excluding values 
attributable to upsets, bypasses, operational errors, or other unusual 
conditions, and (2) a 7-day average value equal to 1.5 times the value 
derived under paragraph (f)(1) of this section.
    (g) Facilities eligible for treatment equivalent to secondary 
treatment. Treatment works shall be eligible for consideration for 
effluent limitations described for treatment equivalent to secondary 
treatment (Sec. 133.105), if:
    (1) The BOD5 and SS effluent concentrations consistently 
achievable through proper operation and maintenance (Sec. 133.101(f)) 
of the treatment works exceed the minimum level of the effluent quality 
set forth in Sec. Sec. 133.102(a) and 133.102(b),
    (2) A trickling filter or waste stabilization pond is used as the 
principal process, and
    (3) The treatment works provide significant biological treatment of 
municipal wastewater.
    (h) mg/l. Milligrams per liter.
    (i) NPDES. National Pollutant Discharge Elimination System.
    (j) Percent removal. A percentage expression of the removal 
efficiency across a treatment plant for a given pollutant parameter, as 
determined from the 30-day average values of the

[[Page 579]]

raw wastewater influent pollutant concentrations to the facility and the 
30-day average values of the effluent pollutant concentrations for a 
given time period.
    (k) Significant biological treatment. The use of an aerobic or 
anaerobic biological treatment process in a treatment works to 
consistently achieve a 30-day average of a least 65 percent removal of 
BOD5.
    (l) SS. The pollutant parameter total suspended solids.
    (m) Significantly more stringent limitation means BOD5 
and SS limitations necessary to meet the percent removal requirements of 
at least 5 mg/l more stringent than the otherwise applicable 
concentration-based limitations (e.g., less than 25 mg/l in the case of 
the secondary treatment limits for BOD5 and SS), or the 
percent removal limitations in Sec. Sec. 133.102 and 133.105, if such 
limits would, by themselves, force significant construction or other 
significant capital expenditure.
    (n) State Director means the chief administrative officer of any 
State or interstate agency operating an ``approved program,'' or the 
delegated representative of the State Director.

[49 FR 37006, Sept. 20, 1984; 49 FR 40405, Oct. 16, 1984, as amended at 
50 FR 23387, June 3, 1985]



Sec. 133.102  Secondary treatment.

    The following paragraphs describe the minimum level of effluent 
quality attainable by secondary treatment in terms of the parameters--
BOD5, SS and pH. All requirements for each parameter shall be 
achieved except as provided for in Sec. Sec. 133.103 and 133.105.
    (a) BOD5.
    (1) The 30-day average shall not exceed 30 mg/l.
    (2) The 7-day average shall not exceed 45 mg/l.
    (3) The 30-day average percent removal shall not be less than 85 
percent.
    (4) At the option of the NPDES permitting authority, in lieu of the 
parameter BOD5 and the levels of the effluent quality 
specified in paragraphs (a)(1), (a)(2) and (a)(3), the parameter 
CBOD5 may be substituted with the following levels of the 
CBOD5 effluent quality provided:
    (i) The 30-day average shall not exceed 25 mg/l.
    (ii) The 7-day average shall not exceed 40 mg/l.
    (iii) The 30-day average percent removal shall not be less than 85 
percent.
    (b) SS. (1) The 30-day average shall not exceed 30 mg/l.
    (2) The 7-day average shall not exceed 45 mg/l.
    (3) The 30-day average percent removal shall not be less than 85 
percent.
    (c) pH. The effluent values for pH shall be maintained within the 
limits of 6.0 to 9.0 unless the publicly owned treatment works 
demonstrates that: (1) Inorganic chemicals are not added to the waste 
stream as part of the treatment process; and (2) contributions from 
industrial sources do not cause the pH of the effluent to be less than 
6.0 or greater than 9.0.

[49 FR 37006, Sept. 20, 1984; 49 FR 40405, Oct. 16, 1984]



Sec. 133.103  Special considerations.

    (a) Combined sewers.  Treatment works subject to this part may not 
be capable of meeting the percentage removal requirements established 
under Sec. Sec. 133.102(a)(3) and 133.102(b)(3), or Sec. Sec. 
133.105(a)(3) and 133.105(b)(3) during wet weather where the treatment 
works receive flows from combined sewers (i.e., sewers which are 
designed to transport both storm water and sanitary sewage). For such 
treatment works, the decision must be made on a case-by-case basis as to 
whether any attainable percentage removal level can be defined, and if 
so, what the level should be.
    (b) Industrial wastes.  For certain industrial categories, the 
discharge to navigable waters of BOD5 and SS permitted under 
sections 301(b)(1)(A)(i), (b)(2)(E) or 306 of the Act may be less 
stringent than the values given in Sec. Sec. 133.102(a)(1), 
133.102(a)(4)(i), 133.102(b)(1), 133.105(a)(1), 133.105(b)(1) and 
133.105(e)(1)(i). In cases when wastes would be introduced from such an 
industrial category into a publicly owned treatment works, the values 
for BOD5 and SS in Sec. Sec. 133.102(a)(1), 
133.102(a)(4)(i), 133.102(b)(1), 133.105(a)(1), 133.105(b)(1), and 
133.105(e)(1)(i) may be adjusted upwards provided that: (1) The 
permitted

[[Page 580]]

discharge of such pollutants, attributable to the industrial category, 
would not be greater than that which would be permitted under sections 
301(b)(1)(A)(i), 301(b)(2)(E) or 306 of the Act if such industrial 
category were to discharge directly into the navigable waters, and (2) 
the flow or loading of such pollutants introduced by the industrial 
category exceeds 10 percent of the design flow or loading of the 
publicly owned treatment works. When such an adjustment is made, the 
values for BOD5 or SS in Sec. Sec. 133.102(a)(2), 
133.102(a)(4)(ii), Sec. 133.102(b)(2), 133.105(a)(2), 133.105(b)(2), 
and 133.105(e)(1)(ii) should be adjusted proportionately.
    (c) Waste stabilization ponds. The Regional Administrator, or, if 
appropriate, State Director subject to EPA approval, is authorized to 
adjust the minimum levels of effluent quality set forth in Sec. 133.105 
(b)(1), (b)(2), and (b)(3) for treatment works subject to this part, to 
conform to the SS concentrations achievable with waste stabilization 
ponds, provided that: (1) Waste stablization ponds are the principal 
process used for secondary treatment; and (2) operation and maintenance 
data indicate that the SS values specified in Sec. 133.105 (b)(1), 
(b)(2), and (b)(3) cannot be achieved. The term ``SS concentrations 
achievable with waste stabilization ponds'' means a SS value, determined 
by the Regional Administrator, or, if appropriate, State Director 
subject to EPA approval, which is equal to the effluent concentration 
achieved 90 percent of the time within a State or appropriate contiguous 
geographical area by waste stabilization ponds that are achieving the 
levels of effluent quality for BOD5 specified in Sec. 
133.105(a)(1). [cf. 43 FR 55279].
    (d) Less concentrated influent wastewater for separate sewers. The 
Regional Administrator or, if appropriate, State Director is authorized 
to substitute either a lower percent removal requirement or a mass 
loading limit for the percent removal requirements set forth in 
Sec. Sec. 133.102(a)(3), 133.102(a)(4)(iii), 133.102(b)(3), 
102.105(a)(3), 133.105(b)(3) and 133.105(e)(1)(iii) provided that the 
permittee satisfactorily demonstrates that: (1) The treatment works is 
consistently meeting, or will consistently meet, its permit effluent 
concentration limits but its percent removal requirements cannot be met 
due to less concentrated influent wastewater, (2) to meet the percent 
removal requirements, the treatment works would have to achieve 
significantly more stringent limitations than would otherwise be 
required by the concentration-based standards, and (3) the less 
concentrated influent wastewater is not the result of excessive I/I. The 
determination of whether the less concentrated wastewater is the result 
of excessive I/I will use the definition of excessive I/I in 40 CFR 
35.2005(b)(16) plus the additional criterion that inflow is nonexcessive 
if the total flow to the POTW (i.e., wastewater plus inflow plus 
infiltration) is less than 275 gallons per capita per day.
    (e) Less concentrated influent wastewater for combined sewers during 
dry weather. The Regional Administrator or, if appropriate, the State 
Director is authorized to substitute either a lower percent removal 
requirement or a mass loading limit for the percent removal requirements 
set forth in Sec. Sec. 133.102(a)(3), 133.102(a)(4)(iii), 
133.102(b)(3), 133.105(a)(3), 133.105(b)(3) and 133.105(e)(1)(iii) 
provided that the permittee satisfactorily demonstrates that: (1) The 
treatment works is consistently meeting, or will consistently meet, its 
permit effluent concentration limits, but the percent removal 
requirements cannot be met due to less concentrated influent wastewater; 
(2) to meet the percent removal requirements, the treatment works would 
have to achieve significantly more stringent effluent concentrations 
than would otherwise be required by the concentration-based standards; 
and (3) the less concentrated influent wastewater does not result from 
either excessive infiltration or clear water industrial discharges 
during dry weather periods. The determination of whether the less 
concentrated wastewater results from excessive infiltration is discussed 
in 40 CFR 35.2005(b)(28), plus the additional criterion that either 40 
gallons per capita per day (gpcd) or 1500 gallons per inch diameter per 
mile of sewer (gpdim) may be used as the threshold value for that 
portion of the

[[Page 581]]

dry weather base flow attributed to infiltration. If the less 
concentrated influent wastewater is the result of clear water industrial 
discharges, then the treatment works must control such discharges 
pursuant to 40 CFR part 403.

[49 FR 37006, Sept. 20, 1984, as amended at 50 FR 23387, June 3, 1985; 
50 FR 36880, Sept. 10, 1985; 54 FR 4228, Jan. 27, 1989]



Sec. 133.104  Sampling and test procedures.

    (a) Sampling and test procedures for pollutants listed in this part 
shall be in accordance with guidelines promulgated by the Administrator 
in 40 CFR part 136.
    (b) Chemical oxygen demand (COD) or total organic carbon (TOC) may 
be substituted for BOD5 when a long-term BOD:COD or BOD:TOC 
correlation has been demonstrated.



Sec. 133.105  Treatment equivalent to secondary treatment.

    This section describes the minimum level of effluent quality 
attainable by facilities eligible for treatment equivalent to secondary 
treatment (Sec. 133.101(g)) in terms of the parameters--
BOD5, SS and pH. All requirements for the specified 
parameters in paragraphs (a), (b) and (c) of this section shall be 
achieved except as provided for in Sec. 133.103, or paragraphs (d), (e) 
or (f) of this section.
    (a) BOD5. (1) The 30-day average shall not exceed 45 mg/
l.
    (2) The 7-day average shall not exceed 65 mg/l.
    (3) The 30-day average percent removal shall not be less than 65 
percent.
    (b) SS. Except where SS values have been adjusted in accordance with 
Sec. 133.103(c):
    (1) The 30-day average shall not exceed 45 mg/l.
    (2) The 7-day average shall not exceed 65 mg/l.
    (3) The 30-day average percent removal shall not be less than 65 
percent.
    (c) pH. The requirements of Sec. 133.102(c) shall be met.
    (d) Alternative State requirements. Except as limited by paragraph 
(f) of this section, and after notice and opportunity for public 
comment, the Regional Administrator, or, if appropriate, State Director 
subject to EPA approval, is authorized to adjust the minimum levels of 
effluent quality set forth in paragraphs (a)(1), (a)(2), (b)(1) and 
(b)(2) of this section for trickling filter facilities and in paragraphs 
(a)(1) and (a)(2) of this section for waste stabilization pond 
facilities, to conform to the BOD5 and SS effluent 
concentrations consistently achievable through proper operation and 
maintenance (Sec. 133.101(f)) by the median (50th percentile) facility 
in a representative sample of facilities within a State or appropriate 
contiguous geographical area that meet the definition of facilities 
eligible for treatment equivalent to secondary treatment (Sec. 
133.101(g)).

(The information collection requirements contained in this rule have 
been approved by OMB and assigned control number 2040-0051.)

    (e) CBOD5 limitations:
    (1) Where data are available to establish CBOD5 
limitations for a treatment works subject to this section, the NPDES 
permitting authority may substitute the parameter CBOD5 for 
the parameter BOD5 In Sec. Sec. 133.105(a)(1), 133.105(a)(2) 
and 133.105(a)(3), on a case-by-case basis provided that the levels of 
CBOD5 effluent quality are not less stringent than the 
following:
    (i) The 30-day average shall not exceed 40 mg/l.
    (ii) The 7-days average shall not exceed 60 mg/l.
    (iii) The 30-day average percent removal shall not be less than 65 
percent.
    (2) Where data are available, the parameter CBOD5 may be 
used for effluent quality limitations established under paragraph (d) of 
this section. Where concurrent BOD effluent data are available, they 
must be submitted with the CBOD data as a part of the approval process 
outlined in paragraph (d) of this section.
    (f) Permit adjustments. Any permit adjustment made pursuant to this 
part may not be any less stringent than the limitations required 
pursuant to Sec. 133.105(a)-(e). Furthermore, permitting authorities 
shall require more stringent limitations when adjusting permits if: (1) 
For existing facilities the permitting authority determines that the 30-
day average and 7-day average BOD5 and SS effluent values 
that

[[Page 582]]

could be achievable through proper operation and maintenance of the 
treatment works, based on an analysis of the past performance of the 
treatment works, would enable the treatment works to achieve more 
stringent limitations, or
    (2) For new facilities, the permitting authority determines that the 
30-day average and 7-day average BOD5 and SS effluent values 
that could be achievable through proper operation and maintenance of the 
treatment works, considering the design capability of the treatment 
process and geographical and climatic conditions, would enable the 
treatment works to achieve more stringent limitations.

[49 FR 37006, Sept. 20, 1984; 49 FR 40405, Oct. 16, 1984]



PART 135_PRIOR NOTICE OF CITIZEN SUITS--Table of Contents




            Subpart A_Prior Notice Under the Clean Water Act

Sec.
135.1 Purpose.
135.2 Service of notice.
135.3 Contents of notice.
135.4 Service of complaint.
135.5 Service of proposed consent judgment.

        Subpart B_Prior Notice Under the Safe Drinking Water Act

135.10 Purpose.
135.11 Service of notice.
135.12 Contents of notice.
135.13 Timing of notice.

    Authority: Subpart A, issued under Sec. 505, Clean Water Act, as 
amended 1987; Sec. 504, Pub. L. 100-4; 101 Stat. 7 (33 U.S.C. 1365). 
Subpart B, issued under Sec. 1449, Safe Drinking Water Act (42 U.S.C. 
300j-8).

    Source: 38 FR 15040, June 7, 1973, unless otherwise noted.



            Subpart A_Prior Notice Under the Clean Water Act



Sec. 135.1  Purpose.

    (a) Section 505(a)(1) of the Clean Water Act (hereinafter the Act) 
authorizes any person or persons having an interest which is or may be 
adversely affected to commence a civil action on his own behalf to 
enforce the Act or to enforce certain requirements promulgated pursuant 
to the Act. In addition, section 505(c)(3) of the Act provides that, for 
purposes of protecting the interests of the United States, whenever a 
citizen enforcement action is brought under section 505(a)(1) of the Act 
in a court of the United States, the Plaintiff shall serve a copy of the 
complaint on the Attorney General and the Administrator. Section 
505(c)(3) also provides that no consent judgment shall be entered in any 
citizen action in which the United States is not a party prior to 45 
days following the receipt of a copy of the proposed consent judgment by 
the Attorney General and the Administrator.
    (b) The purpose of this subpart is to prescribe procedures governing 
the giving of notice required by section 505(b) of the Act as a 
prerequisite to the commencing of such actions, and governing the 
service of complaints and proposed consent judgments as required by 
section 505(c)(3) of the Act.

[56 FR 11515, Mar. 19, 1991]



Sec. 135.2  Service of notice.

    (a) Notice of intent to file suit pursuant to section 505(a)(1) of 
the Act shall be served upon an alleged violator of an effluent standard 
or limitation under the Act, or an order issued by the Administrator or 
a State with respect to such a standard or limitation, in the following 
manner:
    (1) If the alleged violator is an individual or corporation, service 
of notice shall be accomplished by certified mail addressed to, or by 
personal service upon, the owner or managing agent of the building, 
plant, installation, vessel, facility, or activity alleged to be in 
violation. A copy of the notice shall be mailed to the Administrator of 
the Environmental Protection Agency, the Regional Administrator of the 
Environmental Protection Agency for the region in which such violation 
is alleged to have occurred, and the chief administrative officer of the 
water pollution control agency for the State in which the violation is 
alleged to have occurred. If the alleged violator is a corporation, a 
copy of such notice also shall be mailed to the registered agent, if 
any, of such corporation in the State in which such violation is alleged 
to have occurred.

[[Page 583]]

    (2) If the alleged violator is a State or local agency, service of 
notice shall be accomplished by certified mail addressed to, or by 
personal service upon, the head of such agency. A copy of such notice 
shall be mailed to the chief administrative officer of the water 
pollution control agency for the State in which the violation is alleged 
to have occurred, the Administrator of the Environmental Protection 
Agency, and the Regional Administrator of the Environmental Protection 
Agency for the region in which such violation is alleged to have 
occurred.
    (3) If the alleged violator is a Federal agency, service of notice 
shall be accomplished by certified mail addressed to, or by personal 
service upon, the head of such agency. A copy of such notice shall be 
mailed to the Administrator of the Environmental Protection Agency, the 
Regional Administrator of the Environmental Protection Agency for the 
region in which such violation is alleged to have occurred, the Attorney 
General of the United States, and the Chief administrative officer of 
the water pollution control agency for the State in which the violation 
is alleged to have occurred.
    (b) Service of notice of intent to file suit pursuant to section 
505(a)(2) of the Act shall be accomplished by certified mail addressed 
to, or by personal service upon, the Administrator, Environmental 
Protection Agency, Washington, DC 20460. A copy of such notice shall be 
mailed to the Attorney General of the United States.
    (c) Notice given in accordance with the provisions of this subpart 
shall be deemed to have been served on the postmark date if mailed, or 
on the date of receipt if served personally.



Sec. 135.3  Contents of notice.

    (a) Violation of standard, limitation or order. Notice regarding an 
alleged violation of an effluent standard or limitation or of an order 
with respect thereto, shall include sufficient information to permit the 
recipient to identify the specific standard, limitation, or order 
alleged to have been violated, the activity alleged to constitute a 
violation, the person or persons responsible for the alleged violation, 
the location of the alleged violation, the date or dates of such 
violation, and the full name, address, and telephone number of the 
person giving notice.
    (b) Failure to act. Notice regarding an alleged failure of the 
Administrator to perform any act or duty under the Act which is not 
discretionary with the Administrator shall identify the provision of the 
Act which requires such act or creates such duty, shall describe with 
reasonable specificity the action taken or not taken by the 
Administrator which is alleged to constitute a failure to perform such 
act or duty, and shall state the full name, address and telephone number 
of the person giving the notice.
    (c) Identification of counsel. The notice shall state the name, 
address, and telephone number of the legal counsel, if any, representing 
the person giving the notice.



Sec. 135.4  Service of complaint.

    (a) A citizen plaintiff shall mail a copy of a complaint filed 
against an alleged violator under section 505(a)(1) of the Act to the 
Administrator of the Environmental Protection Agency, the Regional 
Administrator of the EPA Region in which the violations are alleged to 
have occurred, and the Attorney General of the United States.
    (b) The copy so served shall be of a filed, date-stamped complaint, 
or shall be a conformed copy of the filed complaint which indicates the 
assigned civil action number, accompanied by a signed statement by the 
plaintiff or his attorney as to when the complaint was filed.
    (c) A citizen plaintiff shall mail a copy of the complaint on the 
same date on which the plaintiff files the complaint with the court, or 
as expeditiously thereafter as practicable.
    (d) If the alleged violator is a Federal agency, a citizen plaintiff 
must serve the complaint on the United States in accordance with 
relevant Federal law and court rules affecting service on defendants, in 
addition to complying with the service requirements of this subpart.

[56 FR 11515, Mar. 19, 1991]

[[Page 584]]



Sec. 135.5  Service of proposed consent judgment.

    (a) The citizen plaintiff in a citizen enforcement suit filed 
against an alleged violator under section 505(a)(1) of the Act shall 
serve a copy of a proposed consent judgment, signed by all parties to 
the lawsuit, upon the Administrator, Environmental Protection Agency, 
Washington, DC 20460, and the Attorney General, Department of Justice, 
Citizen Suit Coordinator, Room 2615, Washington, DC 20530. The plaintiff 
shall serve the Administrator and the Attorney General by personal 
service or by certified mail (return receipt requested.) The plaintiff 
shall also mail a copy of a proposed consent judgment at the same time 
to the Regional Administrator of the EPA Region in which the violations 
were alleged to have occurred.
    (b) When the parties in an action in which the United States is not 
a party file or lodge a proposed consent judgment with the court, the 
plaintiff shall notify the court of the statutory requirement that the 
consent judgment shall not be entered prior to 45 days following receipt 
by both the Administrator and the Attorney General of a copy of the 
consent judgment.
    (1) If the plaintiff knows the dates upon which the Administrator 
and the Attorney General received copies of the proposed consent 
judgment, the plaintiff shall so notify the court.
    (2) If the plaintiff does not know the date upon which the 
Administrator and Attorney General received copies of the proposed 
consent judgment, the plaintiff shall so notify the court, but upon 
receiving such information regarding the dates of service of the 
proposed consent judgment upon the Administrator and Attorney General, 
the plaintiff shall so notify the court of the dates of service.

[56 FR 11515, Mar. 19, 1991]



        Subpart B_Prior Notice Under the Safe Drinking Water Act

    Source: 54 FR 20771, May 12, 1989, unless otherwise noted.



Sec. 135.10  Purpose.

    Section 1449 of the Safe Drinking Water Act (the Act) authorizes any 
person to commence a civil action to enforce the Act against an alleged 
violator of any requirements prescribed by or under the Act, or against 
the Administrator for failure to perform any duty which is not 
discretionary under the Act. No citizen suit may be commenced prior to 
sixty days after giving notice of the alleged violation to the 
Administrator, any alleged violator, and to the State. The purpose of 
this subpart is to prescribe procedures for giving the notice required 
by section 1449(b).



Sec. 135.11  Service of notice.

    (a) Notice of intent to file suit pursuant to section 1449(a)(1) of 
the Act shall be served in the following manner upon an alleged violator 
of any requirement prescribed by or under the Act:
    (1) If the alleged violator is an individual or corporation, service 
of notice shall be accomplished by certified mail, return receipt 
requested, addressed to, or by personal service upon, such individual or 
corporation. If a public water system or underground injection well is 
alleged to be in violation, service shall be upon the owner or operator. 
A copy of the notice shall be sent by certified mail, return receipt 
requested, to the Administrator of the Environmental Protection Agency, 
the Regional Administrator of the Environmental Protection Agency for 
the region in which such violation is alleged to have occurred, the 
chief administrative officer of the responsible state agency (if any), 
and the Attorney General for the State in which the violation is alleged 
to have occurred. If the alleged violator is a corporation, a copy of 
the notice shall also be sent by certified mail, return receipt 
requested, to the registered agent (if any) of the corporation in the 
State in which the violation is alleged to have occurred.
    (2) If the alleged violator is a State or local agency, service of 
notice shall be accomplished by certified mail, return receipt 
requested, addressed to, or by personal service upon, the head of such 
agency. A copy of the notice shall

[[Page 585]]

be sent by certified mail, return receipt requested, to the 
Administrator of the Environmental Protection Agency, the Regional 
Administrator of the Environmental Protection Agency for the region in 
which the violation is alleged to have occurred, the chief 
administrative officer of the responsible state agency (if any), and the 
Attorney General for the State in which the violation is alleged to have 
occurred.
    (3) If the alleged violator is a Federal agency, service of notice 
shall be accomplished by certified mail, return receipt requested, 
addressed to, or by personal service upon, the head of the Federal 
agency. A copy of the notice shall be sent by certified mail, return 
receipt requested, to the Administrator of the Environmental Protection 
Agency, the Regional Administrator of the Environmental Protection 
Agency for the region in which the violation is alleged to have 
occurred, the Attorney General of the United States, the chief 
administrative officer of the responsible state agency (if any), and the 
Attorney General for the State in which the violation is alleged to have 
occurred.
    (b) Service of notice of intent to file suit pursuant to section 
1449(a)(2) of the Act shall be accomplished by certified mail, return 
receipt requested, addressed to, or by personal service upon, the 
Administrator of the Environmental Protection Agency, Washington, DC 
20460. A copy of the notice shall be sent by certified mail to the 
Attorney General of the United States.
    (c) Notice given in accordance with the provisions of this subpart 
shall be deemed to have been given on the date of receipt of service, if 
served personally. If service was accomplished by mail, the date of 
receipt will be considered to be the date noted on the return receipt 
card.



Sec. 135.12  Contents of notice.

    (a) Violation of standard or requirement. Notice regarding an 
alleged violation of any requirement prescribed by or under the Act 
shall include sufficient information to permit the recipient to identify 
the specific requirement alleged to have been violated, the activity 
alleged to constitute a violation, the person or persons responsible for 
the alleged violation, the location of the alleged violation, the date 
or dates of the alleged violation, and the full name, address, and 
telephone number of the person giving notice.
    (b) Failure to act. Notice regarding an alleged failure of the 
Administrator to perform any act or duty under the Act which is not 
discretionary with the Administrator shall identify the provision of the 
Act which requires the act or creates the duty, and shall describe with 
reasonable specificity the action taken or not taken by the 
Administrator which is alleged to constitute a failure to perform such 
act or duty, and shall state the full name, address, and telephone 
number of the person giving notice.
    (c) Identification of counsel. All notices shall include the name, 
address, and telephone number of the legal counsel, if any, representing 
the person giving notice.



Sec. 135.13  Timing of notice.

    No action may be commenced under section 1449(a)(1) or (a)(2) until 
the plaintiff has given each of the appropriate parties sixty days 
notice of intent to file such an action. Actions concerning injection 
wells disposing of hazardous waste which allege jurisdiction solely 
under section 7002(c) of the Resource Conservation and Recovery Act may 
proceed immediately after notice to the appropriate parties.


[[Page 587]]



                              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.

  Table of CFR Titles and Chapters
  Alphabetical List of Agencies Appearing in the CFR
  List of CFR Sections Affected

[[Page 589]]



                    Table of CFR Titles and Chapters




                      (Revised as of July 1, 2009)

                      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)
      XIII  Department of Commerce (Parts 1300--1399)
       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)
      XXXI  Institute of Museum and Library Services (Parts 3100--
                3199)
     XXXII  National Endowment for the Arts (Parts 3200--3299)
    XXXIII  National Endowment for the Humanities (Parts 3300--
                3399)

[[Page 590]]

      XXXV  Export-Import Bank of the United States (Parts 3500--
                3599)
    XXXVII  Peace Corps (Parts 3700--3799)

                        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)

[[Page 591]]

     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)
       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)

                         Title 7--Agriculture

            Subtitle A--Office of the Secretary of Agriculture 
                (Parts 0--26)
            Subtitle B--Regulations of the Department of 
                Agriculture

[[Page 592]]

         I  Agricultural Marketing Service (Standards, 
                Inspections, Marketing Practices), Department of 
                Agriculture (Parts 27--209)
        II  Food and Nutrition Service, Department of Agriculture 
                (Parts 210--299)
       III  Animal and Plant Health Inspection Service, Department 
                of Agriculture (Parts 300--399)
        IV  Federal Crop Insurance Corporation, Department of 
                Agriculture (Parts 400--499)
         V  Agricultural Research Service, Department of 
                Agriculture (Parts 500--599)
        VI  Natural Resources Conservation Service, Department of 
                Agriculture (Parts 600--699)
       VII  Farm Service Agency, Department of Agriculture (Parts 
                700--799)
      VIII  Grain Inspection, Packers and Stockyards 
                Administration (Federal Grain Inspection Service), 
                Department of Agriculture (Parts 800--899)
        IX  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Fruits, Vegetables, Nuts), Department 
                of Agriculture (Parts 900--999)
         X  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Milk), Department of Agriculture 
                (Parts 1000--1199)
        XI  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Miscellaneous Commodities), Department 
                of Agriculture (Parts 1200--1299)
       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)

[[Page 593]]

    XXXIII  Office of Transportation, Department of Agriculture 
                (Parts 3300--3399)
     XXXIV  Cooperative State Research, Education, and Extension 
                Service, Department of Agriculture (Parts 3400--
                3499)
      XXXV  Rural Housing Service, Department of Agriculture 
                (Parts 3500--3599)
     XXXVI  National Agricultural Statistics Service, Department 
                of Agriculture (Parts 3600--3699)
    XXXVII  Economic Research Service, Department of Agriculture 
                (Parts 3700--3799)
   XXXVIII  World Agricultural Outlook Board, Department of 
                Agriculture (Parts 3800--3899)
       XLI  [Reserved]
      XLII  Rural Business-Cooperative Service and Rural Utilities 
                Service, Department of Agriculture (Parts 4200--
                4299)
         L  Rural Business-Cooperative Service, Rurual Housing 
                Service, and Rural Utilities Service, Department 
                of Agriculture (Parts 5000--5099)

                    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)

[[Page 594]]

                      Title 11--Federal Elections

         I  Federal Election Commission (Parts 1--9099)
        II  Election Assistance Commission (Parts9400--9499)

                      Title 12--Banks and Banking

         I  Comptroller of the Currency, Department of the 
                Treasury (Parts 1--199)
        II  Federal Reserve System (Parts 200--299)
       III  Federal Deposit Insurance Corporation (Parts 300--399)
        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)
       XII  Federal Housing Finance Agency (Parts 1200--1299)
       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 (Parts 400--499)
         V  Emergency Oil and Gas Guaranteed Loan Board (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)

[[Page 595]]

                 Title 15--Commerce and Foreign Trade

            Subtitle A--Office of the Secretary of Commerce (Parts 
                0--29)
            Subtitle B--Regulations Relating to Commerce and 
                Foreign Trade
         I  Bureau of the Census, Department of Commerce (Parts 
                30--199)
        II  National Institute of Standards and Technology, 
                Department of Commerce (Parts 200--299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)
        IV  Foreign-Trade Zones Board, Department of Commerce 
                (Parts 400--499)
       VII  Bureau of 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)

[[Page 596]]

      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)
       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)

[[Page 597]]

         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)
       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)

[[Page 598]]

      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)
         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)

[[Page 599]]

       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)
      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)

[[Page 600]]

       VII  Office of Surface Mining Reclamation and Enforcement, 
                Department of the Interior (Parts 700--999)

                 Title 31--Money and Finance: Treasury

            Subtitle A--Office of the Secretary of the Treasury 
                (Parts 0--50)
            Subtitle B--Regulations Relating to Money and Finance
         I  Monetary Offices, Department of the Treasury (Parts 
                51--199)
        II  Fiscal Service, Department of the Treasury (Parts 
                200--399)
        IV  Secret Service, Department of the Treasury (Parts 
                400--499)
         V  Office of Foreign Assets Control, Department of the 
                Treasury (Parts 500--599)
        VI  Bureau of Engraving and Printing, Department of the 
                Treasury (Parts 600--699)
       VII  Federal Law Enforcement Training Center, Department of 
                the Treasury (Parts 700--799)
      VIII  Office of International Investment, Department of the 
                Treasury (Parts 800--899)
        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)

[[Page 601]]

        IV  Saint Lawrence Seaway Development Corporation, 
                Department of Transportation (Parts 400--499)

                          Title 34--Education

            Subtitle A--Office of the Secretary, Department of 
                Education (Parts 1--99)
            Subtitle B--Regulations of the Offices of the 
                Department of Education
         I  Office for Civil Rights, Department of Education 
                (Parts 100--199)
        II  Office of Elementary and Secondary Education, 
                Department of Education (Parts 200--299)
       III  Office of Special Education and Rehabilitative 
                Services, Department of Education (Parts 300--399)
        IV  Office of Vocational and Adult Education, Department 
                of Education (Parts 400--499)
         V  Office of Bilingual Education and Minority Languages 
                Affairs, Department of Education (Parts 500--599)
        VI  Office of Postsecondary Education, Department of 
                Education (Parts 600--699)
       VII  Office of Educational Research and 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)

[[Page 602]]

             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)
        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)

[[Page 603]]

       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)
            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)

[[Page 604]]

                       Title 45--Public Welfare

            Subtitle A--Department of Health and Human Services 
                (Parts 1--199)
            Subtitle B--Regulations Relating to Public Welfare
        II  Office of Family Assistance (Assistance Programs), 
                Administration for Children and Families, 
                Department of Health and Human Services (Parts 
                200--299)
       III  Office of Child Support Enforcement (Child Support 
                Enforcement Program), Administration for Children 
                and Families, Department of Health and Human 
                Services (Parts 300--399)
        IV  Office of Refugee Resettlement, Administration for 
                Children and Families, Department of Health and 
                Human Services (Parts 400--499)
         V  Foreign Claims Settlement Commission of the United 
                States, Department of Justice (Parts 500--599)
        VI  National Science Foundation (Parts 600--699)
       VII  Commission on Civil Rights (Parts 700--799)
      VIII  Office of Personnel Management (Parts 800--899) 
                [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)

[[Page 605]]

        II  Office of Science and Technology Policy and National 
                Security Council (Parts 200--299)
       III  National Telecommunications and Information 
                Administration, Department of Commerce (Parts 
                300--399)

           Title 48--Federal Acquisition Regulations System

         1  Federal Acquisition Regulation (Parts 1--99)
         2  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]

[[Page 606]]

        54  Defense Logistics Agency, Department of Defense (Parts 
                5400--5499)
        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)

[[Page 607]]

         V  Marine Mammal Commission (Parts 500--599)
        VI  Fishery Conservation and Management, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 600--699)

                      CFR Index and Finding Aids

            Subject/Agency Index
            List of Agency Prepared Indexes
            Parallel Tables of Statutory Authorities and Rules
            List of CFR Titles, Chapters, Subchapters, and Parts
            Alphabetical List of Agencies Appearing in the CFR

[[Page 609]]





           Alphabetical List of Agencies Appearing in the CFR




                      (Revised as of July 1, 2009)

                                                  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, L
  Rural Development Administration                7, XLII
  Rural Housing Service                           7, XVIII, XXXV, L
  Rural Telephone Bank                            7, XVI
  Rural Utilities Service                         7, XVII, XVIII, XLII, L
  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 610]]

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 611]]

  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
  Human Resources Management and Labor Relations  5, XCIX
       Systems
  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
Election Assistance Commission                    11, II
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

[[Page 612]]

  National Drug Control Policy, Office of         21, III
  National Security Council                       32, XXI; 47, 2
  Presidential Documents                          3
  Science and Technology Policy, Office of        32, XXIV; 47, II
  Trade Representative, Office of the United      15, XX
       States
Export-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 Agency                    12, XII
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

[[Page 613]]

General Services Administration                   5, LVII; 41, 105
  Contract Appeals, Board of                      48, 61
  Federal Acquisition Regulation                  48, 5
  Federal Management Regulation                   41, 102
  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
  Human Resources Management and Labor Relations  5, XCVII
       Systems
  Immigration and Customs Enforcement Bureau      19, IV
  Immigration and Naturalization                  8, I
  Transportation Security Administration          49, XII
HOPE for Homeowners Program, Board of Directors   24, XXIV
     of
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

[[Page 614]]

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
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 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
Investment Security, Office of                    31, VIII
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

[[Page 615]]

  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
  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
Museum and Library Services, Institute of         2, XXXI
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

[[Page 616]]

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
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
  Human Resources Management and Labor Relations  5, XCIX
       Systems, Department of Defense
  Human Resources Management and Labor Relations  5, XCVII
       Systems, Department of Homeland Security
  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
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, L
Rural Development Administration                  7, XLII
Rural Housing Service                             7, XVIII, XXXV, L
Rural Telephone Bank                              7, XVI
Rural Utilities Service                           7, XVII, XVIII, XLII, L
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
[[Page 617]]

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
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
  Investment Security, 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

[[Page 618]]

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 619]]



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,'' published in 10 separate volumes.

                                  2001

40 CFR
                                                                   66 FR
                                                                    Page
Chapter I
Chapter Nomenclature change........................................34375
    Technical corrections..........................................34376
112.20 (a)(4)(iii) amended.........................................34560
112 Appendices E and F amended.....................................34561
122.21 (r) added...................................................65337
122.44 Regulation at 65 FR 43661 eff. 4-30-03......................53048
    (b)(3) added...................................................65337
123.25 (a)(36) revised.............................................65338
123.44 Regulation at 65 FR 43661 eff. 4-30-03......................53048
124.7 Regulation at 65 FR 43661 eff. 4-30-03.......................53048
124.8 Regulation at 65 FR eff. 4-30-03.............................53048
124.10 (d)(1)(ix) redesignated as (d)(1)(x); new (d)(1)(ix) added 
                                                                   65358
125.80--125.89 (Subpart I) Heading removed; new heading and 
        sections added.............................................65338
130.0--130.7 (Subpart A) Regulation at 65 FR 43662 eff. 4-30-03....53048
130.1 Regulation at 65 FR 43662 eff. 4-30-03.......................53048
130.2 Regulation at 65 FR 43662 eff. 4-30-03.......................53048
130.3 Regulation at 65 FR 43662 eff. 4-30-03.......................53048
130.4 Regulation at 65 FR 43662 eff. 4-30-03.......................53048
130.5 Regulation at 65 FR 43662 eff. 4-30-03.......................53048
130.6 Regulation at 65 FR 43662 eff. 4-30-03.......................53048
130.7 (d)(1) amended; Regulation at 65 FR 43663 eff. 4-30-03.......53048
130.8 Regulation at 65 FR 43662 eff. 4-30-03.......................53048
130.9 Regulation at 65 FR 43662 eff. 4-30-03.......................53048
130.10--130.11 (Subpart B) Regulation at 65 FR 43662 eff. 4-30-03 
                                                                   53048
130.10 Regulation at 65 FR 43662 and 43663 eff. 4-30-03............53048
130.11 Regulation at 65 FR 43662 and 43664 eff. 4-30-03............53048
130.12 Regulation at 65 FR 43662 eff. 4-30-03......................53048
130.15 Regulation at 65 FR 43662 eff. 4-30-03......................53048
130.20--130.37 (Subpart C) Regulation at 65 FR 43664 eff. 4-30-03 
                                                                   53048
130.50--130.51 (Subpart D) Regulation at 65 FR 43662 and 43670 
        eff. 4-30-03...............................................53048
130.50 Regulation at 65 FR 43662 and 43670 eff. 4-30-03............53048
130.51 Regulation at 65 FR 43662 eff. 4-30-03......................53048
130.60--130.64 (Subpart E) Regulation at 65 FR 43662 eff. 4-30-03 
                                                                   53048
130.60 Regulation at 65 FR 43662 eff. 4-30-03......................53048
130.61 Regulation at 65 FR 43662 and 43670 eff. 4-30-03............53048

[[Page 620]]

130.62 Regulation at 65 FR 43662 eff. 4-30-03......................53048
130.63 Regulation at 65 FR 43662 eff. 4-30-03......................53048
130.64 Regulation at 65 FR 43662 and 43670 eff. 4-30-03............53048
131.38 (b)(1) table amended; (b)(2)(ii) revised.....................9961

                                  2002

40 CFR
                                                                   67 FR
                                                                    Page
Chapter I
105 Added...........................................................6142
112.1--112.7 (Subpart A) Subpart designation added; revised........47140
112.8--112.11 (Subpart B) Added....................................47146
112.12--112.15 (Subpart C) Added...................................47149
112.20--112.21 (Subpart D) Subpart designation and heading added 
                                                                   47151
112.20 (h) amended.................................................47151
112 Appendices C, D and F amended..................................47152
122.26 (c)(1)(i)(E)(4) correctly revised; (c)(2) correctly 
        removed; CFR correction.....................................4675
    (c)(1) introductory text and (i)(E)(4) correctly revised; 
(c)(2) correctly removed; (d)(2)(iii) introductory text corrected; 
CFR correction.....................................................42501
124.15 (a) corrected; CFR correction...............................30811
124.56 (b)(1)(vi) correctly revised; CFR correction................30811
125.83 Amended.....................................................78954
125.84 (b)(4)(ii), (iii), (5)(ii), (c)(3)(ii), (iii), and (d)(1) 
        revised....................................................78954
125.85 (a)(2) and (3) revised......................................78955
125.89 (b)(2) revised..............................................78955
131.33 (b) revised.................................................11248
131.36 (d)(7) removed..............................................68041
    (d)(2)(ii) table, (3)(ii) table, (5)(ii) table and (9)(ii) 
table revised......................................................71846

                                  2003

40 CFR
                                                                   68 FR
                                                                    Page
Chapter I
112.3 (a) and (b) revised; interim..................................1351
    (a) and (b) revised............................................18894
112 Appendix F corrected; CFR correction............................4385
122.21 (a)(1) amended; (i)(1) revised...............................7265
122.23 Revised......................................................7265
122.26 (e)(8) revised..............................................11329
122.28 (b)(2)(ii) amended...........................................7268
122.42 (e) added....................................................7268
122.44 Regulation at 65 FR 43661 withdrawn.........................13614
122 Appendix B removed..............................................7269
123.36 Added........................................................7269
123.44 Regulation at 65 FR 43661 withdrawn.........................13614
124.7 Regulation at 65 FR 43661 withdrawn..........................13614
124.8 Regulation at 65 FR 43661 withdrawn..........................13614
125.83 Regulation at 67 FR 78954 withdrawn.........................14164
    Amended; eff. 7-21-03..........................................36754
125.84 Regulation at 67 FR 78954 withdrawn.........................14164
    (b)(4)(ii), (iii), (5)(ii), (c)(3)(ii), (iii) and (d)(1) 
revised; eff. 7-21-03..............................................36754
125.85 Regulation at 67 FR 78955 withdrawn.........................14164
    (a)(2) and (3) revised; eff. 7-21-03...........................36755
125.89 Regulation at 67 FR 78955 withdrawn.........................14164
130.0--130.7 (Subpart A) Regulation at 65 FR 43662 withdrawn.......13614
130.1 Regulation at 65 FR 43662 withdrawn..........................13614
130.2 Regulation at 65 FR 43662 withdrawn..........................13614
130.4 Regulation at 65 FR 43662 withdrawn..........................13614
130.5 Regulation at 65 FR 43662 withdrawn..........................13614
130.6 Regulation at 65 FR 43662 withdrawn..........................13614
130.7 Regulation at 65 FR 43663 withdrawn..........................13614
130.8 Regulation at 65 FR 43662 withdrawn..........................13614
130.9 Regulation at 65 FR 43662 withdrawn..........................13614
130.10--130.11 (Subpart B) Regulation at 65 FR 43662 withdrawn.....13614

[[Page 621]]

130.10 Regulation at 65 FR 43662 and 43663 withdrawn...............13614
130.11 Regulation at 65 FR 43662 and 43664 withdrawn...............13614
130.12 Regulation at 65 FR 43662 withdrawn.........................13614
130.15 Regulation at 65 FR 43662 withdrawn.........................13614
130.20--130.37 (Subpart C) Regulation at 65 FR 43664 withdrawn.....13614
130.50--130.51 (Subpart D) Regulation at 65 FR 43662 withdrawn.....13614
130.50 Regulation at 65 FR 43662 and 43670 withdrawn...............13614
130.51 Regulation at 65 FR 43662 and 43670 withdrawn...............13614
130.60--130.64 (Subpart E) Regulation at 65 FR 43662 withdrawn.....13614
130.60 Regulation at 65 FR 43662 withdrawn.........................13614
130.61 Regulation at 65 FR 43662 and 43670 withdrawn...............13614
130.62 Regulation at 65 FR 43662 withdrawn.........................13614
130.63 Regulation at 65 FR 43662 withdrawn.........................13614
130.64 Regulation at 65 FR 43662 and 43670 withdrawn...............13614
131.1 (a) removed..................................................62744
131.34 Added.......................................................40442
131.38 (b)(1) amended..............................................62747

                                  2004

40 CFR
                                                                   69 FR
                                                                    Page
Title 40 Nomenclature change.......................................18803
Chapter I
112 Meeting........................................................12804
112.3 (a), (b) and (c) revised.....................................48798
122.21 (r)(1) revised; (r)(5) added................................41682
122.44 (b)(3) revised..............................................41682
123.25 (a)(4) and (36) revised.....................................41682
124.10 (d)(1)(ix) revised..........................................41683
125.90--125.99 (Subpart J) Added...................................41683
125.95 (a)(2)(ii) corrected........................................47210
131.36 (d)(4)(ii) table and (12)(ii) table revised; (d)(8) removed
                                                                   63082
131.40 Added........................................................3524
131.41 Added.......................................................67242

                                  2005

40 CFR
                                                                   70 FR
                                                                    Page
Chapter I
122.21 (j)(6)(ii) introductory text revised........................60191
122.26 (e)(8) revised..............................................11563
122.44 (j)(1) amended..............................................60191
122.62 (a)(7) revised..............................................60191
123.25 (a)(44) and (45) revised; (a)(46) added; (a) Note amended 
                                                                   59888
124.1 (b) revised..................................................53448
124.2 (a) amended..................................................53449
124.5 (c)(1) revised...............................................53449
124.31 (a), (b) and (c) revised....................................53449
124.32 (a) revised.................................................53449
124.200--124.214 (Subpart G) Added.................................53449

                                  2006

40 CFR
                                                                   71 FR
                                                                    Page
Chapter I
112.1 (d)(2)(ii) revised; (d)(7) added.............................77290
112.2 Amended......................................................77290
112.3 (a), (b) and (c) revised......................................8466
    (a) and (b) redesignated as (a)(1) and (b)(1); (a)(2), (b)(2) 
and (g) added; (d) introductory text revised.......................77290
112.5 (c) revised..................................................77291
112.6 Added........................................................77291
112.7 (a)(2), (c) introductory text and (d) introductory text 
        revised; (k) added.........................................77292
112.8 (c)(2) and (11) revised......................................77293
112.12 Heading, (c)(2) and (11) revised............................77293
112.13 Removed.....................................................77293
112.14 Removed.....................................................77293
112.15 Removed.....................................................77293
122 Regulation at 71 FR 68483 eff. date corrected to 1-26-07.......69622
122.3 (h) added....................................................68492
122.21 (i)(1)(x) revised............................................6983
    (r)(1)(i) and (4) introductory text revised; (r)(2)(ii) and 
(iii) amended; (r)(2)(iv) added; eff. 7-17-06......................35039
122.23 (g)(1) and (3)(iii) revised..................................6984
122.26 (a)(2) and (e)(8) revised...................................33639
122.42 (e)(1) introductory text amended.............................6984
122.44 (b)(3) revised; eff. 7-17-06................................35040
123.25 (a)(36) revised; eff. 7-17-06...............................35040

[[Page 622]]

124.10 (d)(1)(ix) revised; eff. 7-17-06............................35040
125.93 Amended; eff. 7-17-06.......................................35040
125.130--125.139 (Subpart N) Added; eff. 7-17-06...................35040

                                  2007

40 CFR
                                                                   72 FR
                                                                    Page
Chapter I
112.3 (a)(1), (b)(1) and (c) revised...............................27447
122.1 (a)(4) revised...............................................11211
122.21 (g)(7)(i), (h)(4)(i) introductory text and (j)(4)(viii) 
        revised....................................................11211
122.21 (r)(1)(ii) and (5) suspended................................37109
    (i)(1)(x) amended..............................................40250
122.23 (g)(1), (2) and (3)(iii) revised............................40250
122.41 (j)(4) and (l)(4)(ii) revised...............................11211
122.42 (e)(1) amended..............................................40250
122.44 (i)(1)(iv) revised..........................................11212
125.90 (a), (c) and (d) suspended..................................37109
125.91 Suspended...................................................37109
125.92 Suspended...................................................37109
125.93 Suspended...................................................37109
125.94 Suspended...................................................37109
125.95 Suspended...................................................37109
125.96 Suspended...................................................37109
125.97 Suspended...................................................37109
125.98 Suspended...................................................37109
125.99 Suspended...................................................37109
131.36 (d)(14)(ii) table revised...................................37115
131.42 Added.......................................................70524

                                  2008

40 CFR
                                                                   73 FR
                                                                    Page
Chapter I
112 Technical correction...........................................75346
112.1 (d)(2)(i), (ii) and (4) revised; (d)(8) through (12) added 
                                                                   74300
112.2 Amended...............................................71943, 74300
112.3 Introductory text, (b)(1) and (g) revised; (b)(3), 
        (d)(1)(vi) and (vii) added.................................74301
112.5 (b) and (c) redesignated as (d) and (e); new (b) and (c) 
        added; new (d) revised.....................................74301
112.6 Revised......................................................74302
112.7 (a)(2) amended; (a)(3) introductory text, (i), (c) 
        introductory text, (1), (g), (h) heading, (1) and (2) 
        revised....................................................74303
112.8 (c)(2) amended; (c)(6) and (11) revised......................74304
112.9 Heading, introductory text, (c)(2), (3) and (d)(3) revised; 
        (c)(5), (6) and (d)(4) added...............................74304
112.12 Introductory text, (c)(6) and (11) revised; (c)(2) amended 
                                                                   74305
112 Appendix G added...............................................74306
122.3 (i) added; eff. 8-12-08......................................33708
122.21 (a)(1) amended; (i)(1)(x) revised...........................70480
122.23 (a), (d)(1), (2), (f), (g) and (h) revised; (e)(1), (2), 
        (i) and (j) added..........................................70480
122.28 (b)(2)(vii) added...........................................70483
122.42 (e) introductory text and (1) introductory text revised; 
        (e)(4)(vii) amended; (e)(4)(viii), (5) and (6) added.......70483
122.62 (a)(17) added...............................................70485
122.63 (h) added...................................................70485
130 Policy statement...............................................52928
131.32 Removed.....................................................53143
    Regulation at 73 FR 53143 withdrawn............................67397
131.33 (b) and (d) removed.........................................48305
    Regulation at 73 FR 48305 withdrawn; (b) and (d) removed.......65739

                                  2009

    (Regulations published from January 1, 2009 through July 1, 2009)

40 CFR
                                                                   74 FR
                                                                    Page
Chapter I
112.1 Regulation at 73 FR 74300 eff. date delayed...................5900
    Regulation at 73 FR 74300 eff. date delayed to 1-14-10.........14736
112.2 Regulation at 73 FR 74300 eff. date delayed...................5900
    Regulation at 73 FR 74300 eff. date delayed to 1-14-10.........14736
112.3 Regulation at 73 FR 74301 eff. date delayed...................5900
    Regulation at 73 FR 74301 eff. date delayed to 1-14-10.........14736
    (a)(1), (2), (b)(1), (2) and (c) revised.......................29141

[[Page 623]]

112.5 Regulation at 73 FR 74301 eff. date delayed...................5900
    Regulation at 73 FR 74301 eff. date delayed to 1-14-10.........14736
112.6 Regulation at 73 FR 74302 eff. date delayed...................5900
    Regulation at 73 FR 74302 eff. date delayed to 1-14-10.........14736
112.7 Regulation at 73 FR 74303 eff. date delayed...................5900
    Regulation at 73 FR 74303 eff. date delayed to 1-14-10.........14736
112.8 Regulation at 73 FR 74304 eff. date delayed...................5900
    Regulation at 73 FR 74304 eff. date delayed to 1-14-10.........14736
112.9 Regulation at 73 FR 74304 eff. date delayed...................5900
    Regulation at 73 FR 74304 eff. date delayed to 1-14-10.........14736
112.12 Regulation at 73 FR 74305 eff. date delayed..................5900
    Regulation at 73 FR 74305 eff. date delayed to 1-14-10.........14736
112 Regulation at 73 FR 74306 eff. date delayed.....................5900
    Regulation at 73 FR 74306 eff. date delayed to 1-14-10.........14736


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