5 

SUBCHAPTER D—WATER PROGRAMS 

PARTS 100–103 [RESERVED] 

PART 104—PUBLIC HEARINGS ON 

EFFLUENT STANDARDS FOR TOXIC 

POLLUTANTS 

Sec. 

104.1 Applicability. 

104.2 Definitions. 

104.3 Notice of hearing; objection; public 

comment. 

104.4 Statement of basis and purpose. 

104.5 Docket and record. 

104.6 Designation of Presiding Officer. 

104.7 Powers of Presiding Officer. 

104.8 Prehearing conferences. 

104.9 Admission of evidence. 

104.10 Hearing procedures. 

104.11 Briefs and findings of fact. 

104.12 Certification of record. 

104.13 Interlocutory and post-hearing review of rulings of the Presiding Officer; 

motions. 

104.14 Tentative and final decision by the 

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. 

§ 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. 

§ 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 §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 

§104.6 hereof. 

§ 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 


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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. 

§ 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. 

§ 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 


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docket shall include all written objections filed by any party, any public 

comments received pursuant to 

§104.3(d), a verbatim transcript of the 

hearing, the statement of basis and 

purpose required by §104.4, and any 

supporting documents referred to 

therein, and other documents of exhibits that may be received in evidence or 

marked for 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. 

§ 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. 

§ 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. 

§ 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 


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be appropriate to facilitate the proceedings. 

§ 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. 

§ 104.10 Hearing procedures. 

(a) Following the admission in evidence of the materials described in 

§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. 


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Environmental Protection Agency § 104.13 

(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. 

§ 104.11 Briefs and findings of fact. 

At the conclusion of the hearing, the 

Presiding Officer shall set a schedule 

for the submission by the parties of 

briefs and proposed findings of fact and 

conclusions. In establishing the aforesaid time schedule, the Presiding Officer shall consider the time constraints 

placed upon the parties and the Administrator by the statutory deadlines. 

§ 104.12 Certification of record. 

As soon as possible after the hearing, 

the 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. 

§ 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 


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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. 

§ 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 §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. 

§ 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. 

§ 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 


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Environmental Protection Agency § 105.2 

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 

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

§ 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. 

§ 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-forprofit organization, or wastewater 


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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. 

§ 105.3 Title. 

The awards are known as the National Clean Water Act Recognition 

Awards (hereinafter, the Awards Program). 

ELIGIBILITY REQUIREMENTS

§ 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. 

§ 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. 

§ 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

§ 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. 


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§ 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. 

§ 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

§ 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. 

§ 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. 

§ 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. 

§ 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

§ 105.14 How are award winners notified? 

EPA notifies national award winners 

by letter. 

§ 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. 

§ 105.16 How are award winners publicized? 

EPA announces the annual national 

recognition award winners through notice published in the FEDERAL REGISTER. 


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Pt. 108 40 CFR Ch. I (7–1–15 Edition) 

PART 108—EMPLOYEE PROTECTION 

HEARINGS 

Sec. 

108.1 Applicability. 

108.2 Definitions. 

108.3 Request for investigation. 

108.4 Investigation by Regional Administrator. 

108.5 Procedure. 

108.6 Recommendations. 

108.7 Hearing before Administrator. 

AUTHORITY: Sec. 507(e), Pub. L. 92–500, 86 

Stat. 816 (33 U.S.C. 1251 et seq.). 

SOURCE: 39 FR 15398, May 3, 1974, unless 

otherwise noted. 

§ 108.1 Applicability. 

This part shall be applicable to investigations and hearings required by section 507(e) of the Federal Water Pollution Control Act, as amended, 33 U.S.C. 

1251 et seq. (Pub. L. 92–500). 

§ 108.2 Definitions. 

As used in this part, the term: 

(a) Act means the Federal Water Pollution 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 §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. 

§ 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. 

§ 108.4 Investigation by Regional Administrator. 

Upon receipt of any request meeting 

the requirements of §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. 

§ 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 


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Environmental Protection Agency § 109.2 

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 §108.3 or §108.4, or counsel 

or other representative of such party 

or the Regional Administrator, may 

appear and offer evidence at the hearing. 

§ 108.6 Recommendations. 

At the conclusion of any hearing 

under this part, the Administrative 

Law Judge shall, based on the record, 

issue tentative findings of fact and 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. 

§ 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 

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. 

§ 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 

§306.2 of the National Oil and Hazardous Materials Pollution Contingency Plan (35 FR 8511). 

§ 109.2 Definitions. 

As used in these guidelines, the following terms shall have the meaning 

indicated below: 

(a) Oil means oil of any kind or in 

any form, including, but not limited to, 

petroleum, fuel oil, sludge, oil refuse, 

and oil mixed with wastes other than 

dredged spoil. 

(b) Discharge includes, but is not limited to, any spilling, leaking, pumping, 

pouring, emitting, emptying, or dumping. 

(c) Remove or removal refers to the removal of the oil from the water and 

shorelines or the taking of such other 

actions as may be necessary to 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. 


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§ 109.3 40 CFR Ch. I (7–1–15 Edition) 

(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. 

§ 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. 

§ 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 nonFederal 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. 

§ 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: 


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Environmental Protection Agency § 110.1 

(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. 

§ 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 

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. 

EFFECTIVE DATE NOTE: At 80 FR 37106, June 

29, 2015, the authority citation to part 110 

was revised, effective Aug. 28, 2015. For the 

convenience of the user, the revised text is 

set forth as follows: 

AUTHORITY: 33 U.S.C. 1251 et seq., 33 U.S.C. 

1321(b)(3) and (b)(4) and 1361(a); E.O. 11735, 38 

FR 21243, 3 CFR parts 1971–1975 Comp., p. 793. 

SOURCE: 52 FR 10719, Apr. 2, 1987, unless 

otherwise noted. 

§ 110.1 Definitions. 

Terms not defined in this section 

have the same meaning given by the 

Section 311 of the Act. As used in this 

part, the following terms shall have 

the meaning indicated below: 

Act means the Federal Water Pollution Control Act, as amended, 33 U.S.C. 

1251 et seq., also known as the Clean 

Water Act; 

Administrator means the Administrator of the Environmental Protection 

Agency (EPA); 

Applicable water quality standards 

means State water quality standards 

adopted by the State 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; 


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§ 110.1, Nt. 40 CFR Ch. I (7–1–15 Edition) 

Navigable waters means the waters of 

the United States, including the territorial seas. The term includes: 

(a) All waters that are currently 

used, were used in the past, or may be 

susceptible to use in interstate or foreign commerce, including all waters 

that are subject to the ebb and flow of 

the tide; 

(b) Interstate waters, including interstate wetlands; 

(c) All other waters such as intrastate lakes, rivers, streams (including 

intermittent streams), mudflats, 

sandflats, and wetlands, the use, degradation, or destruction of which would 

affect or could affect interstate or foreign commerce including any such 

waters: 

(1) That are or could be used by interstate or foreign travelers for recreational or other purposes; 

(2) From which fish or shellfish are or 

could be taken and sold in interstate or 

foreign commerce; 

(3) That are used or could be used for 

industrial purposes by industries in 

interstate commerce; 

(d) All impoundments of waters otherwise defined as navigable waters 

under this section; 

(e) Tributaries of waters identified in 

paragraphs (a) through (d) of this section, including adjacent wetlands; and 

(f) Wetlands adjacent to waters identified in paragraphs (a) through (e) of 

this section: Provided, That waste 

treatment systems (other than cooling 

ponds meeting the criteria of this paragraph) are not waters of the United 

States; 

Navigable waters do not include prior 

converted cropland. Notwithstanding 

the determination of an area’s status 

as prior converted cropland by any 

other federal agency, for the purposes 

of the Clean Water Act, the final authority regarding Clean Water Act jurisdiction remains with EPA. 

NPDES means National Pollutant 

Discharge Elimination System; 

Sheen means an iridescent appearance on the surface of water; 

Sludge means an aggregate of oil or 

oil and other matter of any kind in any 

form other than dredged spoil having a 

combined specific gravity equivalent to 

or greater than water; 

United States means the States, the 

District of Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa, the Virgin Islands, and the 

Trust Territory of the Pacific Islands; 

Wetlands means those areas that are 

inundated or saturated by surface or 

ground water at a frequency or duration sufficient to support, and that 

under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil 

conditions. Wetlands generally include 

playa lakes, swamps, marshes, bogs 

and similar areas such as sloughs, prairie potholes, wet meadows, prairie 

river overflows, mudflats, and natural 

ponds. 

[52 FR 10719, Apr. 2, 1987, as amended at 58 

FR 45039, Aug. 25, 1993; 61 FR 7421, Feb. 28, 

1996] 

EFFECTIVE DATE NOTE: At 80 FR 37106, June 

29, 2015, §110.1 was amended by removing the 

definition of ‘‘wetlands’’ and revising the 

definition of ‘‘navigable waters’’, effective 

Aug. 28, 2015. For the convenience of the 

user, the revised text is set forth as follows: 

§ 110.1 Definitions. 

* * * * * 

Navigable waters means waters of the 

United States, including the territorial seas. 

(1) For purposes of the Clean Water Act, 33 

U.S.C. 1251 et seq. and its implementing regulations, subject to the exclusions in paragraph (2) of this section, the term ‘‘waters of 

the United States’’ means: 

(i) 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; 

(ii) All interstate waters, including interstate wetlands; 

(iii) The territorial seas; 

(iv) All impoundments of waters otherwise 

identified as waters of the United States 

under this section; 

(v) All tributaries, as defined in paragraph 

(3)(iii) of this definition, of waters identified 

in paragraphs (1)(i) through (iii) of this definition; 

(vi) All waters adjacent to a water identified in paragraphs (1)(i) through (v) of this 

definition, including wetlands, ponds, lakes, 

oxbows, impoundments, and similar waters; 

(vii) All waters in paragraphs (1)(vii)(A) 

through (E) of this definition where they are 

determined, on a case-specific basis, to have 

a significant nexus to a water identified in 


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Environmental Protection Agency § 110.1, Nt. 

paragraphs (1)(i) through (iii) of this definition. The waters identified in each of paragraphs (1)(vii)(A) through (E) of this definition are similarly situated and shall be combined, for purposes of a significant nexus 

analysis, in the watershed that drains to the 

nearest water identified in paragraphs (1)(i) 

through (iii) of this definition. Waters identified in this paragraph shall not be combined with waters identified in paragraph 

(1)(vi) of this definition when performing a 

significant nexus analysis. If waters identified in this paragraph are also an adjacent 

water under paragraph (1)(vi), they are an 

adjacent water and no case-specific significant nexus analysis is required. 

(A) Prairie potholes. Prairie potholes are a 

complex of glacially formed wetlands, usually occurring in depressions that lack permanent natural outlets, located in the upper 

Midwest. 

(B) Carolina bays and Delmarva bays. Carolina bays and Delmarva bays are ponded, 

depressional wetlands that occur along the 

Atlantic coastal plain. 

(C) Pocosins. Pocosins are evergreen shrub 

and tree dominated wetlands found predominantly along the Central Atlantic coastal 

plain. 

(D) Western vernal pools. Western vernal 

pools are seasonal wetlands located in parts 

of California and associated with topographic depression, soils with poor drainage, 

mild, wet winters and hot, dry summers. 

(E) Texas coastal prairie wetlands. Texas 

coastal prairie wetlands are freshwater wetlands that occur as a mosaic of depressions, 

ridges, intermound flats, and mima mound 

wetlands located along the Texas Gulf Coast. 

(viii) All waters located within the 100-year 

floodplain of a water identified in paragraphs 

(1)(i) through (iii) of this definition and all 

waters located within 4,000 feet of the high 

tide line or ordinary high water mark of a 

water identified in paragraphs (1)(i) through 

(v) of this definition where they are determined on a case-specific basis to have a significant nexus to a water identified in paragraphs (1)(i) through (iii) of this definition. 

For waters determined to have a significant 

nexus, the entire water is a water of the 

United States if a portion is located within 

the 100-year floodplain of a water identified 

in paragraphs (1)(i) through (iii) of this definition or within 4,000 feet of the high tide 

line or ordinary high water mark. Waters 

identified in this paragraph shall not be combined with waters identified in paragraph 

(1)(vi) of this definition when performing a 

significant nexus analysis. If waters identified in this paragraph are also an adjacent 

water under paragraph (1)(vi), they are an 

adjacent water and no case-specific significant nexus analysis is required. 

(2) The following are not ‘‘waters of the 

United States’’ even where they otherwise 

meet the terms of paragraphs (1)(iv) through 

(viii) of this section. 

(i) Waste treatment systems (other than 

cooling ponds meeting the criteria of this 

paragraph) are not waters of the United 

States. 

(ii) 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. 

(iii) The following ditches: 

(A) Ditches with ephemeral flow that are 

not a relocated tributary or excavated in a 

tributary. 

(B) Ditches with intermittent flow that are 

not a relocated tributary, excavated in a 

tributary, or drain wetlands. 

(C) Ditches that do not flow, either directly or through another water, into a 

water identified in paragraphs (1)(i) through 

(iii) of this definition. 

(iv) The following features: 

(A) Artificially irrigated areas that would 

revert to dry land should application of 

water to that area cease; 

(B) Artificial, constructed lakes and ponds 

created in dry land such as farm and stock 

watering ponds, irrigation ponds, settling basins, fields flooded for rice growing, log 

cleaning ponds, or cooling ponds; 

(C) Artificial reflecting pools or swimming 

pools created in dry land; 

(D) Small ornamental waters created in 

dry land; 

(E) Water-filled depressions created in dry 

land incidental to mining or construction activity, including pits excavated for obtaining 

fill, sand, or gravel that fill with water; 

(F) Erosional features, including gullies, 

rills, and other ephemeral features that do 

not meet the definition of tributary, nonwetland swales, and lawfully constructed 

grassed waterways; and 

(G) Puddles. 

(v) Groundwater, including groundwater 

drained through subsurface drainage systems. 

(vi) Stormwater control features constructed to convey, treat, or store 

stormwater that are created in dry land. 

(vii) Wastewater recycling structures constructed in dry land; detention and retention 

basins built for wastewater recycling; 

groundwater recharge basins; percolation 

ponds built for wastewater recycling; and 

water distributary structures built for 

wastewater recycling. 

(3) In this definition, the following terms 

apply: 

(i) Adjacent. The term adjacent means bordering, contiguous, or neighboring a water 

identified in paragraphs (1)(i) through (v) of 

this definition, including waters separated 

by constructed dikes or barriers, natural 


Lhorne on DSK5TPTVN1PROD with CFR
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§ 110.1, Nt. 40 CFR Ch. I (7–1–15 Edition) 

river berms, beach dunes, and the like. For 

purposes of adjacency, an open water such as 

a pond or lake includes any wetlands within 

or abutting its ordinary high water mark. 

Adjacency is not limited to waters located 

laterally to a water identified in paragraphs 

(1)(1) through (v) of this definition. Adjacent 

waters also include all waters that connect 

segments of a water identified in paragraphs 

(1)(i) through (v) or are located at the head 

of a water identified in paragraphs (1)(i) 

through (v) of this definition and are bordering, contiguous, or neighboring such 

water. Waters being used for established normal farming, ranching, and silviculture activities (33 U.S.C. 1344(f)) are not adjacent. 

(ii) Neighboring. The term neighboring 

means: 

(A) All waters located within 100 feet of the 

ordinary high water mark of a water identified in paragraphs (1)(i) through (v) of this 

definition. The entire water is neighboring if 

a portion is located within 100 feet of the ordinary high water mark; 

(B) All waters located within the 100-year 

floodplain of a water identified in paragraphs 

(1)(i) through (v) of this definition and not 

more than 1,500 feet from the ordinary high 

water mark of such water. The entire water 

is neighboring if a portion is located within 

1,500 feet of the ordinary high water mark 

and within the 100-year floodplain; 

(C) All waters located within 1,500 feet of 

the high tide line of a water identified in 

paragraphs (1)(i) or (iii) of this definition, 

and all waters within 1,500 feet of the ordinary high water mark of the Great Lakes. 

The entire water is neighboring if a portion 

is located within 1,500 feet of the high tide 

line or within 1,500 feet of the ordinary high 

water mark of the Great Lakes. 

(iii) Tributary and tributaries. The terms 

tributary and tributaries each mean a water 

that contributes flow, either directly or 

through another water (including an impoundment identified in paragraph (1)(iv) of 

this section), to a water identified in paragraphs (1)(i) through (iii) of this definition 

that is characterized by the presence of the 

physical indicators of a bed and banks and 

an ordinary high water mark. These physical 

indicators demonstrate there is volume, frequency, and duration of flow sufficient to 

create a bed and banks and an ordinary high 

water mark, and thus to qualify as a tributary. A tributary can be a natural, man-altered, or man-made water and includes 

waters such as rivers, streams, canals, and 

ditches not excluded under paragraph (2) of 

this definition. A water that otherwise qualifies as a tributary under this definition does 

not lose its status as a tributary if, for any 

length, there are one or more constructed 

breaks (such as bridges, culverts, pipes, or 

dams), or one or more natural breaks (such 

as wetlands along the run of a stream, debris 

piles, boulder fields, or a stream that flows 

underground) so long as a bed and banks and 

an ordinary high water mark can be identified upstream of the break. A water that otherwise qualifies as a tributary under this definition does not lose its status as a tributary 

if it contributes flow through a water of the 

United States that does not meet the definition of tributary or through a non-jurisdictional water to a water identified in paragraphs (1)(i) through (iii) of this definition. 

(iv) Wetlands. The term 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. 

(v) Significant nexus. The term significant 

nexus means that a water, including wetlands, either alone or in combination with 

other similarly situated waters in the region, significantly affects the chemical, 

physical, or biological integrity of a water 

identified in paragraphs (1)(i) through (iii) of 

this definition. The term ‘‘in the region’’ 

means the watershed that drains to the nearest water identified in paragraphs (1)(i) 

through (iii) of this definition. For an effect 

to be significant, it must be more than speculative or insubstantial. Waters are similarly situated when they function alike and 

are sufficiently close to function together in 

affecting downstream waters. For purposes 

of determining whether or not a water has a 

significant nexus, the water’s effect on downstream (1)(i) through (iii) waters shall be assessed by evaluating the aquatic functions 

identified in paragraphs (3)(v)(A) through (I) 

of this definition. A water has a significant 

nexus when any single function or combination of functions performed by the water, 

alone or together with similarly situated 

waters in the region, contributes significantly to the chemical, physical, or biological integrity of the nearest water identified 

in paragraphs (1)(i) through (iii) of this definition. Functions relevant to the significant 

nexus evaluation are the following: 

(A) Sediment trapping, 

(B) Nutrient recycling, 

(C) Pollutant trapping, transformation, filtering, and transport, 

(D) Retention and attenuation of flood 

waters, 

(E) Runoff storage, 

(F) Contribution of flow, 

(G) Export of organic matter, 

(H) Export of food resources, and 

(I) Provision of life cycle dependent aquatic habitat (such as foraging, feeding, nesting, 

breeding, spawning, or use as a nursery area) 

for species located in a water identified in 

paragraphs (1)(i) through (iii) of this definition. 


Lhorne on DSK5TPTVN1PROD with CFR
21 

Environmental Protection Agency § 110.6 

(vi) Ordinary high water mark. The term ordinary high water mark means that line on 

the shore established by the fluctuations of 

water and indicated by physical characteristics such as a clear, natural line impressed 

on the bank, shelving, changes in the character of soil, destruction of terrestrial vegetation, the presence of litter and debris, or 

other appropriate means that consider the 

characteristics of the surrounding areas. 

(vii) High tide line. The term high tide line 

means the line of intersection of the land 

with the water’s surface at the maximum 

height reached by a rising tide. The high tide 

line may be determined, in the absence of actual data, by a line of oil or scum along 

shore objects, a more or less continuous deposit of fine shell or debris on the foreshore 

or berm, other physical markings or characteristics, vegetation lines, tidal gages, or 

other suitable means that delineate the general height reached by a rising tide. The line 

encompasses spring high tides and other high 

tides that occur with periodic frequency but 

does not include storm surges in which there 

is a departure from the normal or predicted 

reach of the tide due to the piling up of 

water against a coast by strong winds such 

as those accompanying a hurricane or other 

intense storm. 

* * * * * 

§ 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] 

§ 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] 

§ 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] 

§ 110.5 Discharges of oil not determined ‘‘as may be harmful’’ pursuant to Section 311(b)(3) of the Act. 

Notwithstanding any other provisions of this part, the Administrator 

has not determined the following discharges of oil ‘‘as may be harmful’’ for 

purposes of section 311(b) of the Act: 

(a) Discharges of oil from a properly 

functioning vessel engine (including an 

engine on a public vessel) and any discharges of such oil accumulated in the 

bilges of a vessel discharged in compliance with MARPOL 73/78, Annex I, as 

provided in 33 CFR part 151, subpart A; 

(b) Other discharges of oil permitted 

under MARPOL 73/78, Annex I, as provided in 33 CFR part 151, subpart A; and 

(c) Any discharge of oil explicitly 

permitted by the Administrator in connection with research, demonstration 

projects, or studies relating to the prevention, control, or abatement of oil 

pollution. 

[61 FR 7421, Feb. 28, 1996] 

§ 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 


Lhorne on DSK5TPTVN1PROD with CFR
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Pt. 112 40 CFR Ch. I (7–1–15 Edition) 

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 

Subpart A—Applicability, Definitions, and 

General Requirements For All Facilities 

and All Types of Oils 

Sec. 

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 (excluding 

drilling and workover 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

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. 

EFFECTIVE DATE NOTE: At 80 FR 37108, June 

29, 2015, the authority citation to part 112 

was revised, effective Aug. 28, 2015. For the 

convenience of the user, the revised text is 

set forth as follows: 

AUTHORITY: 33 U.S.C. 1251 et seq. 

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. 


Lhorne on DSK5TPTVN1PROD with CFR
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Environmental Protection Agency § 112.1 

§ 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 §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 §112.2; 

(4) Any ‘‘bunkered tank’’ or ‘‘partially buried tank’’ as defined in §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 

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: 


Lhorne on DSK5TPTVN1PROD with CFR
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§ 112.1 40 CFR Ch. I (7–1–15 Edition) 

(i) The completely buried storage capacity of the facility is 42,000 U.S. 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 §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, including, but 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 

§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 

§112.2; 

(B) The capacity of a ‘‘motive power 

container’’ as defined in §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 any milk and 

milk product container and associated 

piping and appurtenances. 

(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 §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, provided 

that such a tank is subject to any Nuclear Regulatory Commission provision 

regarding design and quality criteria, 

including, but not limited to, 10 CFR 

part 50. Such emergency generator 

tanks must be marked on the facility 

diagram as provided in §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 §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. 

(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 §112.7(a)(3), if 

the facility is otherwise subject to this 

part. 


Lhorne on DSK5TPTVN1PROD with CFR
25 

Environmental Protection Agency § 112.1 

(12) Any milk and milk product container and associated piping and appurtenances. 

(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, 

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 


Lhorne on DSK5TPTVN1PROD with CFR
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§ 112.2 40 CFR Ch. I (7–1–15 Edition) 

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; 73 FR 74300, Dec. 5, 

2008; 74 FR 58809, Nov. 13, 2009; 76 FR 21660, 

Apr. 18, 2011] 

§ 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. 

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 


Lhorne on DSK5TPTVN1PROD with CFR
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Environmental Protection Agency § 112.2 

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, 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. 

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 

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. 

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. 

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 §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 oilfilled 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 


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§ 112.2 40 CFR Ch. I (7–1–15 Edition) 

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 oilfilled manufacturing equipment (flowthrough 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 

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 forprofit 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. 

Produced water container means a 

storage container at an oil production 

facility used to store the produced 


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29 

Environmental Protection Agency § 112.2, Nt. 

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 nontransportation-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. 

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 §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 

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; 73 FR 74300, Dec. 5, 2008] 

EFFECTIVE DATE NOTE: At 80 FR 37108, June 

29, 2015, §112.2 was amended by removing the 

definition of ‘‘wetlands’’ and revising the 

definition of ‘‘Navigable waters’’, effective 

Aug. 28, 2015. For the convenience of the 

user, the revised text is set forth as follows: 

§ 112.2 Definitions. 

* * * * * 

Navigable waters means waters of the 

United States, including the territorial seas. 

(1) For purposes of the Clean Water Act, 33 

U.S.C. 1251 et seq. and its implementing regulations, subject to the exclusions in paragraph (2) of this definition, the term ‘‘waters 

of the United States’’ means: 

(i) 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; 

(ii) All interstate waters, including interstate wetlands; 

(iii) The territorial seas; 

(iv) All impoundments of waters otherwise 

identified as waters of the United States 

under this section; 


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§ 112.2, Nt. 40 CFR Ch. I (7–1–15 Edition) 

(v) All tributaries, as defined in paragraph 

(3)(iii) of this definition, of waters identified 

in paragraphs (1)(i) through (iii) of this definition; 

(vi) All waters adjacent to a water identified in paragraphs (1)(i) through (v) of this 

definition, including wetlands, ponds, lakes, 

oxbows, impoundments, and similar waters; 

(vii) All waters in paragraphs (1)(vii)(A) 

through (E) of this definition where they are 

determined, on a case-specific basis, to have 

a significant nexus to a water identified in 

paragraphs (1)(i) through (iii) of this definition. The waters identified in each of paragraphs (1)(vii)(A) through (E) of this definition are similarly situated and shall be combined, for purposes of a significant nexus 

analysis, in the watershed that drains to the 

nearest water identified in paragraphs (1)(i) 

through (iii) of this definition. Waters identified in this paragraph shall not be combined with waters identified in paragraph 

(1)(vi) of this section when performing a significant nexus analysis. If waters identified 

in this paragraph are also an adjacent water 

under paragraph (1)(vi), they are an adjacent 

water and no case-specific significant nexus 

analysis is required. 

(A) Prairie potholes. Prairie potholes are a 

complex of glacially formed wetlands, usually occurring in depressions that lack permanent natural outlets, located in the upper 

Midwest. 

(B) Carolina bays and Delmarva bays. 

Carolina bays and Delmarva bays are ponded, depressional wetlands that occur along 

the Atlantic coastal plain. 

(C) Pocosins. Pocosins are evergreen shrub 

and tree dominated wetlands found predominantly along the Central Atlantic coastal 

plain. 

(D) Western vernal pools. Western vernal 

pools are seasonal wetlands located in parts 

of California and associated with topographic depression, soils with poor drainage, 

mild, wet winters and hot, dry summers. 

(E) Texas coastal prairie wetlands. Texas 

coastal prairie wetlands are freshwater wetlands that occur as a mosaic of depressions, 

ridges, intermound flats, and mima mound 

wetlands located along the Texas Gulf Coast. 

(viii) All waters located within the 100-year 

floodplain of a water identified in paragraphs 

(1)(i) through (iii) of this definition and all 

waters located within 4,000 feet of the high 

tide line or ordinary high water mark of a 

water identified in paragraphs (1)(i) through 

(v) of this definition where they are determined on a case-specific basis to have a significant nexus to a water identified in paragraphs (1)(i) through (iii) of this definition. 

For waters determined to have a significant 

nexus, the entire water is a water of the 

United States if a portion is located within 

the 100-year floodplain of a water identified 

in paragraphs (1)(i) through (iii) of this definition or within 4,000 feet of the high tide 

line or ordinary high water mark. Waters 

identified in this paragraph shall not be combined with waters identified in paragraph 

(1)(vi) of this definition when performing a 

significant nexus analysis. If waters identified in this paragraph are also an adjacent 

water under paragraph (1)(vi), they are an 

adjacent water and no case-specific significant nexus analysis is required. 

(2) The following are not ‘‘waters of the 

United States’’ even where they otherwise 

meet the terms of paragraphs (1)(iv) through 

(viii) of this definition. 

(i) The following ditches: 

(A) Ditches with ephemeral flow that are 

not a relocated tributary or excavated in a 

tributary. 

(B) Ditches with intermittent flow that are 

not a relocated tributary, excavated in a 

tributary, or drain wetlands. 

(C) Ditches that do not flow, either directly or through another water, into a 

water identified in paragraphs (1)(i) through 

(iii) of this definition. 

(ii) The following features: 

(A) Artificially irrigated areas that would 

revert to dry land should application of 

water to that area cease; 

(B) Artificial, constructed lakes and ponds 

created in dry land such as farm and stock 

watering ponds, irrigation ponds, settling basins, fields flooded for rice growing, log 

cleaning ponds, or cooling ponds; 

(C) Artificial reflecting pools or swimming 

pools created in dry land; 

(D) Small ornamental waters created in 

dry land; 

(E) Water-filled depressions created in dry 

land incidental to mining or construction activity, including pits excavated for obtaining 

fill, sand, or gravel that fill with water; 

(F) Erosional features, including gullies, 

rills, and other ephemeral features that do 

not meet the definition of tributary, nonwetland swales, and lawfully constructed 

grassed waterways; and 

(G) Puddles. 

(iii) Groundwater, including groundwater 

drained through subsurface drainage systems. 

(iv) Stormwater control features constructed to convey, treat, or store 

stormwater that are created in dry land. 

(v) Wastewater recycling structures constructed in dry land; detention and retention 

basins built for wastewater recycling; 

groundwater recharge basins; percolation 

ponds built for wastewater recycling; and 

water distributary structures built for 

wastewater recycling. 

(3) In this definition, the following terms 

apply: 

(i) Adjacent. The term adjacent means bordering, contiguous, or neighboring a water 

identified in paragraphs (1)(i) through (v) of 

this definition, including waters separated 

by constructed dikes or barriers, natural 


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Environmental Protection Agency § 112.2, Nt. 

river berms, beach dunes, and the like. For 

purposes of adjacency, an open water such as 

a pond or lake includes any wetlands within 

or abutting its ordinary high water mark. 

Adjacency is not limited to waters located 

laterally to a water identified in paragraphs 

(1)(i) through (v) of this definition. Adjacent 

waters also include all waters that connect 

segments of a water identified in paragraphs 

(1)(i) through (v) or are located at the head 

of a water identified in paragraphs (1)(i) 

through (v) of this definition and are bordering, contiguous, or neighboring such 

water. Waters being used for established normal farming, ranching, and silviculture activities (33 U.S.C. 1344(f)) are not adjacent. 

(ii) Neighboring. The term neighboring 

means: 

(A) All waters located within 100 feet of the 

ordinary high water mark of a water identified in paragraphs (1)(i) through (v) of this 

definition. The entire water is neighboring if 

a portion is located within 100 feet of the ordinary high water mark; 

(B) All waters located within the 100-year 

floodplain of a water identified in paragraphs 

(1)(i) through (v) of this definition and not 

more than 1,500 feet from the ordinary high 

water mark of such water. The entire water 

is neighboring if a portion is located within 

1,500 feet of the ordinary high water mark 

and within the 100-year floodplain; 

(C) All waters located within 1,500 feet of 

the high tide line of a water identified in 

paragraphs (1)(i) or (1)(iii) of this definition, 

and all waters within 1,500 feet of the ordinary high water mark of the Great Lakes. 

The entire water is neighboring if a portion 

is located within 1,500 feet of the high tide 

line or within 1,500 feet of the ordinary high 

water mark of the Great Lakes. 

(iii) Tributary and tributaries. The terms 

tributary and tributaries each mean a water 

that contributes flow, either directly or 

through another water (including an impoundment identified in paragraph (1)(iv) of 

this definition), to a water identified in paragraphs (1)(i) through (iii) of this definition 

that is characterized by the presence of the 

physical indicators of a bed and banks and 

an ordinary high water mark. These physical 

indicators demonstrate there is volume, frequency, and duration of flow sufficient to 

create a bed and banks and an ordinary high 

water mark, and thus to qualify as a tributary. A tributary can be a natural, man-altered, or man-made water and includes 

waters such as rivers, streams, canals, and 

ditches not excluded under paragraph (2) of 

this definition. A water that otherwise qualifies as a tributary under this definition does 

not lose its status as a tributary if, for any 

length, there are one or more constructed 

breaks (such as bridges, culverts, pipes, or 

dams), or one or more natural breaks (such 

as wetlands along the run of a stream, debris 

piles, boulder fields, or a stream that flows 

underground) so long as a bed and banks and 

an ordinary high water mark can be identified upstream of the break. A water that otherwise qualifies as a tributary under this definition does not lose its status as a tributary 

if it contributes flow through a water of the 

United States that does not meet the definition of tributary or through a non-jurisdictional water to a water identified in paragraphs (1)(i) through (iii) of this definition. 

(iv) Wetlands. The term 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. 

(v) Significant nexus. The term significant 

nexus means that a water, including wetlands, either alone or in combination with 

other similarly situated waters in the region, significantly affects the chemical, 

physical, or biological integrity of a water 

identified in paragraphs (1)(i) through (iii) of 

this definition. The term ‘‘in the region’’ 

means the watershed that drains to the nearest water identified in paragraphs (1)(i) 

through (iii) of this definition. For an effect 

to be significant, it must be more than speculative or insubstantial. Waters are similarly situated when they function alike and 

are sufficiently close to function together in 

affecting downstream waters. For purposes 

of determining whether or not a water has a 

significant nexus, the water’s effect on downstream (1)(i) through (iii) waters shall be assessed by evaluating the aquatic functions 

identified in paragraphs (3)(v)(A) through (I) 

of this definition. A water has a significant 

nexus when any single function or combination of functions performed by the water, 

alone or together with similarly situated 

waters in the region, contributes significantly to the chemical, physical, or biological integrity of the nearest water identified 

in paragraphs (1)(i) through (iii) of this section. Functions relevant to the significant 

nexus evaluation are the following: 

(A) Sediment trapping, 

(B) Nutrient recycling, 

(C) Pollutant trapping, transformation, filtering, and transport, 

(D) Retention and attenuation of flood 

waters, 

(E) Runoff storage, 

(F) Contribution of flow, 

(G) Export of organic matter, 

(H) Export of food resources, and 

(I) Provision of life cycle dependent aquatic habitat (such as foraging, feeding, nesting, 

breeding, spawning, or use as a nursery area) 

for species located in a water identified in 

paragraphs (1)(i) through (iii) of this definition. 


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32 

§ 112.3 40 CFR Ch. I (7–1–15 Edition) 

(vi) Ordinary high water mark. The term ordinary high water mark means that line on 

the shore established by the fluctuations of 

water and indicated by physical characteristics such as a clear, natural line impressed 

on the bank, shelving, changes in the character of soil, destruction of terrestrial vegetation, the presence of litter and debris, or 

other appropriate means that consider the 

characteristics of the surrounding areas. 

(vii) High tide line. The term high tide line 

means the line of intersection of the land 

with the water’s surface at the maximum 

height reached by a rising tide. The high tide 

line may be determined, in the absence of actual data, by a line of oil or scum along 

shore objects, a more or less continuous deposit of fine shell or debris on the foreshore 

or berm, other physical markings or characteristics, vegetation lines, tidal gages, or 

other suitable means that delineate the general height reached by a rising tide. The line 

encompasses spring high tides and other high 

tides that occur with periodic frequency but 

does not include storm surges in which there 

is a departure from the normal or predicted 

reach of the tide due to the piling up of 

water against a coast by strong winds such 

as those accompanying a hurricane or other 

intense storm. 

* * * * * 

§ 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 

§112.7 and any other applicable section 

of this part. 

(a)(1) Except as otherwise provided in 

this section, if your facility, or mobile 

or portable 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 

amended Plan no later than November 

10, 2011. If such a facility becomes operational after August 16, 2002, through 

November 10, 2011, and could reasonably be expected to have a discharge as 

described in §112.1(b), you must prepare 

and implement a Plan on or before November 10, 2011. If such a facility (excluding oil production facilities) becomes operational after November 10, 

2011, and could reasonably be expected 

to have a discharge as described in 

§112.1(b), you must prepare and implement a Plan before you begin operations. You are not required to prepare 

a new Plan each time you move a mobile or portable facility to a new site; 

the Plan may be general. 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 mobile or portable facility is in a fixed 

(non-transportation) operating mode. 

(2) If your drilling, production or 

workover facility, including a mobile 

or portable facility, is offshore or has 

an offshore component; or your onshore facility is required to have and 

submit a Facility Response Plan pursuant to 40 CFR 112.20(a), and 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 amended Plan no later than 

November 10, 2010. If such a facility becomes operational after August 16, 

2002, through November 10, 2010, and 

could reasonably be expected to have a 

discharge as described in §112.1(b), you 

must prepare and implement a Plan on 

or before November 10, 2010. If such a 

facility (excluding oil production facilities) becomes operational after November 10, 2010, and could reasonably 

be expected to have a discharge as described in §112.1(b), you must prepare 

and implement a Plan before you begin 

operations. You are not required to 

prepare a new Plan each time you 

move a mobile or portable facility to a 

new site; the Plan may be general. 

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 mobile or portable facility is in a 

fixed (non-transportation) operating 

mode. 

(3) If your farm, as defined in §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 amended Plan on or before 

May 10, 2013. If your farm becomes 

operational after August 16, 2002, 


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Environmental Protection Agency § 112.3 

through May 10, 2013, and could reasonably be expected to have a discharge as 

described in §112.1(b), you must prepare 

and implement a Plan on or before May 

10, 2013. If your farm becomes operational after May 10, 2013, and could 

reasonably be expected to have a discharge as described in §112.1(b), you 

must prepare and implement a Plan before you begin operations. 

(b) If your oil production facility as 

described in paragraph (a)(1) of this 

section becomes operational after November 10, 2011, or as described in paragraph (a)(2) of this section becomes 

operational after November 10, 2010, 

and could reasonably be expected to 

have a discharge as described in 

§112.1(b), you must prepare and implement a Plan within six months after 

you begin operations. 

(c) [Reserved] 

(d) Except as provided in §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. 

(vi) That, if applicable, for a produced water container subject to 

§112.9(c)(6), 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. 

(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: 

(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 


Lhorne on DSK5TPTVN1PROD with CFR
34 

§ 112.4 40 CFR Ch. I (7–1–15 Edition) 

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 selfcertify his facility’s Plan, as provided 

in §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 §112.1(b) exceeding 1,000 U.S. 

gallons or no two discharges as described in §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 §112.1(b) that 

are the result of natural disasters, acts 

of war, or terrorism), and has an aggregate aboveground oil storage capacity 

of 10,000 U.S. gallons or less. 

[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; 73 FR 74301, Dec. 5, 2008, 

74 FR 29141, June 19, 2009; 74 FR 58809, Nov. 

13, 2009; 75 FR 63102, Oct. 14, 2010; 76 FR 21660, 

Apr. 18, 2011; 76 FR 64248, Oct. 18, 2011; 76 FR 

72124, Nov. 22, 2011] 

§ 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 

§112.3, whenever your facility has discharged more than 1,000 U.S. gallons of 

oil in a single discharge as described in 

§112.1(b), or discharged more than 42 

U.S. gallons of oil in each of two discharges as described in §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 §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 §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 


Lhorne on DSK5TPTVN1PROD with CFR
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Environmental Protection Agency § 112.5 

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. 

§ 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 §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 §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 §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 


Lhorne on DSK5TPTVN1PROD with CFR
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§ 112.6 40 CFR Ch. I (7–1–15 Edition) 

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 §112.6, have 

a Professional Engineer certify any 

technical amendments to your Plan in 

accordance with §112.3(d). 

[67 FR 47140, July 17, 2002, as amended at 71 

FR 77291, Dec. 26, 2006; 73 FR 74301, Dec. 5, 

2008; 74 FR 58809, Nov. 13, 2009] 

§ 112.6 Qualified Facilities Plan Requirements. 

Qualified facilities meeting the Tier I 

applicability criteria in §112.3(g)(1) are 

subject to the requirements in paragraph (a) of this section. Qualified facilities meeting the Tier II applicability criteria in §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 §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 §112.7 and applicable 

requirements in subparts B and C, including having the Plan certified by a 

Professional Engineer as required 

under §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 §112.3(g)(1); 

(vii) The Plan does not deviate from 

any requirement of this part as allowed 

by §112.7(a)(2) and 112.7(d) or include 

measures pursuant to §112.9(c)(6) for 

produced water containers and any associated piping; 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 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 §112.1(b). If the 

facility change results in the facility 

no longer meeting the Tier I qualifying 

criteria in §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 §112.6(b) if you meet 

the Tier II qualified facility criteria in 

§112.3(g)(2); or 

(ii) Prepare and implement a Plan in 

accordance with the general Plan requirements in §112.7, and applicable requirements in subparts B and C, including having the Plan certified by a Professional Engineer as required under 

§112.3(d). 

(3) Plan Template and Applicable Requirements. Prepare and implement an 

SPCC Plan that meets the following requirements under §112.7 and in subparts B and C of this part: introductory 

paragraph of §§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), 


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37 

Environmental Protection Agency § 112.6 

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 §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 §§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 nontransportation-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 §112.1(b). 

(iii) Overfill prevention, in lieu of the 

requirements in §§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 §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 

§112.3(g)(2); 

(vii) The Plan does not deviate from 

any requirement of this part as allowed 

by §112.7(a)(2) and 112.7(d) or include 

measures pursuant to §112.9(c)(6) for 

produced water containers and any associated piping, 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 selfcertify 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 §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. 

(ii) If the change is such that the facility no longer meets the Tier II qualifying criteria in §112.3(g)(2) because it 

exceeds 10,000 U.S. gallons in aggregate 

aboveground storage capacity you 


Lhorne on DSK5TPTVN1PROD with CFR
38 

§ 112.7 40 CFR Ch. I (7–1–15 Edition) 

must, within six months following the 

change, prepare and implement a Plan 

in accordance with the general Plan requirements in §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 §112.3(d). 

(3) Applicable Requirements. Except as 

provided in this paragraph, your selfcertified SPCC Plan must comply with 

§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 §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 

§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 alternative 

procedures for skimming produced 

water containers in lieu of sized secondary containment pursuant to 

§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 SelfCertified Plan. 

(i) As described in paragraph (b)(3) of 

this section, the facility owner or operator may not self-certify alternative 

measures allowed under §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 

§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 

§112.7(a)(2). For each determination of 

impracticability of secondary containment pursuant to §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 

§112.7(d) in lieu of secondary containment. By certifying each measure allowed under §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 §112.7(a)(2) or the determination of impracticability and alternative measures in accordance with 

§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 §112.9(c)(6) for produced 

water containers and any associated 

piping. Such measures must be reviewed and certified, in writing, by a licensed Professional Engineer, in accordance with §112.3(d)(1)(vi). 

(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 

§112.7(a)(2); to the impracticability determination and measures in lieu of 

secondary containment pursuant to 

§112.7(d); or the measures pursuant to 

§112.9(c)(6) for produced water containers and any associated piping and 

appurtenances downstream from the 

container. 

[73 FR 74302, Dec. 5, 2008, as amended at 74 

FR 58810, Nov. 13, 2009] 

§ 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 


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39 

Environmental Protection Agency § 112.7 

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 

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 §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 §§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. 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 §§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 

§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 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 §112.1(d)(4). 

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 §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; 

(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 §112.1(b). 

(4) Unless you have submitted a response plan under §112.20, provide information and procedures in your Plan 

to enable a person reporting a discharge as described in §112.1(b) to relate information on the exact address 


Lhorne on DSK5TPTVN1PROD with CFR
40 

§ 112.7 40 CFR Ch. I (7–1–15 Edition) 

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 

§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 §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, 

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 §112.1(b), except as provided in paragraph (k) of this section 

for qualified oil-filled operational 

equipment, and except as provided in 

§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. 

(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 

§112.3(d), or, in the case of a qualified 

facility that meets the criteria in 

§112.3(g), the relevant sections of your 

Plan are certified by a licensed Professional Engineer under §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 §§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 §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 

§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 


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41 

Environmental Protection Agency § 112.7 

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 

§112.1(b) or failures, malfunctioning 

components, and any recently developed precautionary measures. 

(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-ofservice 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). 

(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 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. 

(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 subsection 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 §112.1(b) from 

any oil-filled operational equipment 

exceeding 1,000 U.S. gallons or no two 

discharges as described in §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 


Lhorne on DSK5TPTVN1PROD with CFR
42 

§ 112.8 40 CFR Ch. I (7–1–15 Edition) 

in §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 §112.20, provide in 

your Plan the following: 

(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; 73 FR 74303, Dec. 5, 

2008; 74 FR 58810, Nov. 13, 2009] 

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. 

§ 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 §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-andclosed 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 onsite 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 §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 

and other non-transportation-related 


Lhorne on DSK5TPTVN1PROD with CFR
43 

Environmental Protection Agency § 112.8 

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. 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 §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 §§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 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, skidmounted, 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. 

(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. 


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§ 112.9 40 CFR Ch. I (7–1–15 Edition) 

(9) Observe effluent treatment facilities frequently enough to detect possible system upsets that could cause a 

discharge as described in §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 §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. 

(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 47146, July 17, 2002, as amended at 71 

FR 77293, Dec. 26, 2006; 73 FR 74304, Dec. 5, 

2008] 

§ 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: 

(a) Meet the general requirements for 

the Plan listed under §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 §112.1(b), close and seal at all 

times drains of dikes or drains of 

equivalent measures required under 

§112.7(c)(1), except when draining 

uncontaminated rainwater. Prior to 

drainage, you must inspect the diked 

area and take action as provided in 

§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) 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 


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45 

Environmental Protection Agency § 112.9 

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 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. 

(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 §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 §112.1(b), or 

discharges more than 42 U.S. gallons of 

oil in each of two discharges as described in §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 §112.9(c)(2) and (c)(3). 

(6) Produced water containers. For 

each produced water container, comply 

with §112.9(c)(1) and (c)(4); and 

§112.9(c)(2) and (c)(3), or comply with 

the provisions of the following paragraphs (c)(6)(i) through (v): 

(i) 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 freephase oil expected to be maintained inside the container, and a Professional 

Engineer certification in accordance 

with §112.3(d)(1)(vi). Maintain records 

of such events in accordance with 

§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 §112.9(c)(2) and (c)(3). 

(ii) 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 §112.1(b) in accordance with 

good engineering practice. 


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46 

§ 112.10 40 CFR Ch. I (7–1–15 Edition) 

(iii) 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. 

(iv) Promptly remove or initiate actions to stabilize and remediate any accumulations of oil discharges associated with the produced water container. 

(v) If your facility discharges more 

than 1,000 U.S. gallons of oil in a single 

discharge as described in §112.1(b), or 

discharges more than 42 U.S. gallons of 

oil in each of two discharges as described in §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 

§112.9(c)(2) and (c)(3). 

(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) For flowlines and intra-facility 

gathering lines that are not provided 

with secondary containment in accordance with §112.7(c), unless you have 

submitted a response plan under 

§112.20, provide in your Plan the following: 

(i) An oil spill contingency plan following the provisions of part 109 of this 

chapter. 

(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 §112.1(b). For 

flowlines and intra-facility gathering 

lines that are not provided with secondary containment in accordance 

with §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. 

[73 FR, 74304, Dec. 5, 2008, as amended at 74 

FR 58810, Nov. 13, 2009] 

§ 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 §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 

§112.1(b). 

(c) Provide catchment basins or diversion structures to intercept and 


Lhorne on DSK5TPTVN1PROD with CFR
47 

Environmental Protection Agency § 112.11 

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. 

§ 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 §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 §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 

(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 


Lhorne on DSK5TPTVN1PROD with CFR
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§ 112.12 40 CFR Ch. I (7–1–15 Edition) 

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. 

§ 112.12 Spill Prevention, Control, and 

Countermeasure Plan requirements. 

If you are the owner or operator of an 

onshore facility, you must: 

(a) Meet the general requirements for 

the Plan listed under §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-andclosed 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 onsite wastewater treatment plant, you 

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 §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 

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. 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 


Lhorne on DSK5TPTVN1PROD with CFR
49 

Environmental Protection Agency § 112.12 

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 §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 §§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) 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). 

(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. 


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§§ 112.13–112.15 40 CFR Ch. I (7–1–15 Edition) 

(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 §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 §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. 

(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; 73 FR 74305, Dec. 5, 

2008] 

§§ 112.13–112.15 [Reserved] 

Subpart D—Response 

Requirements 

§ 112.20 Facility response plans. 

(a) The owner or operator of any nontransportation-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 


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Environmental Protection Agency § 112.20 

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. 

(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 


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§ 112.20 40 CFR Ch. I (7–1–15 Edition) 

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 

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) 


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Environmental Protection Agency § 112.20 

that provide equipment and personnel 

to respond to discharges of oil described in paragraph (h)(5) of this section; 

(iv) A material change in the facility’s spill prevention and response 

equipment or emergency response procedures; and 

(v) Any other changes that materially affect the implementation of the 

response plan. 

(2) Except as provided in paragraph 

(d)(1) of this section, amendments to 

personnel and telephone number lists 

included in the response plan and a 

change in the oil spill removal organization(s) that does not result in a material change in support capabilities do 

not require approval by the Regional 

Administrator. Facility owners or operators shall provide a copy of such 

changes to the Regional Administrator 

as the revisions occur. 

(3) The owner or operator of a facility 

that submits changes to a response 

plan as provided in paragraph (d)(1) or 

(d)(2) of this section shall provide the 

EPA-issued facility identification number (where one has been assigned) with 

the changes. 

(4) The Regional Administrator shall 

review for approval changes to a response plan submitted pursuant to 

paragraph (d)(1) of this section for a facility determined pursuant to paragraph (f)(3) of this section to have the 

potential to cause significant and substantial harm to the environment. 

(e) If the owner or operator of a facility determines pursuant to paragraph 

(a)(2) of this section that the facility 

could not, because of its location, reasonably be expected to cause substantial harm to the environment by discharging oil into or on the navigable 

waters or adjoining shorelines, the 

owner or operator shall complete and 

maintain at the facility the certification form contained in appendix C to 

this part and, in the event an alternative formula that is comparable to 

one contained in appendix C to this 

part is used to evaluate the criterion in 

paragraph (f)(1)(ii)(B) or (f)(1)(ii)(C) of 

this section, the owner or operator 

shall attach documentation to the certification form that demonstrates the 

reliability and analytical soundness of 

the comparable formula and shall notify the Regional Administrator in 

writing that an alternative formula 

was used. 

(f)(1) A facility could, because of its 

location, reasonably be expected to 

cause substantial harm to the environment by discharging oil into or on the 

navigable waters or adjoining shorelines pursuant to paragraph (a)(2) of 

this section, if it meets any of the following criteria applied in accordance 

with the flowchart contained in attachment C-I to appendix C to this part: 

(i) The facility transfers oil over 

water to or from vessels and has a total 

oil storage capacity greater than or 

equal to 42,000 gallons; or 

(ii) The facility’s total oil storage capacity is greater than or equal to 1 million gallons, and one of the following is 

true: 

(A) The facility does not have secondary containment for each aboveground storage area sufficiently large 

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 


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§ 112.20 40 CFR Ch. I (7–1–15 Edition) 

harm to the environment by discharging oil into or on the navigable 

waters or adjoining shorelines pursuant to paragraph (b) of this section, the 

Regional Administrator shall consider 

the following: 

(A) Type of transfer operation; 

(B) Oil storage capacity; 

(C) Lack of secondary containment; 

(D) Proximity to fish and wildlife and 

sensitive environments and other areas 

determined by the Regional Administrator to possess ecological value; 

(E) Proximity to drinking water intakes; 

(F) Spill history; and 

(G) Other site-specific characteristics 

and environmental factors that the Regional Administrator determines to be 

relevant to protecting the environment 

from harm by discharges of oil into or 

on navigable waters or adjoining shorelines. 

(ii) Any person, including a member 

of the public or any representative 

from a Federal, State, or local agency 

who believes that a facility subject to 

this section could, because of its location, reasonably be expected to cause 

substantial harm to the environment 

by discharging oil into or on the navigable waters or adjoining shorelines 

may petition the Regional Administrator to determine whether the facility meets the criteria in paragraph 

(f)(2)(i) of this section. Such petition 

shall include a discussion of how the 

factors in paragraph (f)(2)(i) of this section apply to the facility in question. 

The RA shall consider such petitions 

and respond in an appropriate amount 

of time. 

(3) To determine whether a facility 

could, because of its location, reasonably be expected to cause significant 

and substantial harm to the environment by discharging oil into or on the 

navigable waters or adjoining shorelines, the Regional Administrator may 

consider the factors in paragraph (f)(2) 

of this section as well as the following: 

(i) Frequency of past 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: 


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Environmental Protection Agency § 112.20 

(i) The identity and telephone number of a qualified individual having full 

authority, including contracting authority, to implement removal actions; 

(ii) The identity of individuals or organizations to be contacted in the 

event of a discharge so that immediate 

communications between the qualified 

individual identified in paragraph (h)(1) 

of this section and the appropriate Federal officials and the persons providing 

response personnel and equipment can 

be ensured; 

(iii) A description of information to 

pass to response personnel in the event 

of a reportable 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 


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§ 112.20 40 CFR Ch. I (7–1–15 Edition) 

effects of the release (i.e., the effects of 

any toxic, irritating, or asphyxiating 

gases that may be generated, or the effects of any hazardous surface water 

runoffs from water or chemical agents 

used to control fire and heat-induced 

explosion); 

(G) Assess and implement prompt removal actions to contain and remove 

the substance released; 

(H) Coordinate rescue and response 

actions as previously arranged with all 

response personnel; 

(I) Use authority to immediately access company funding to initiate cleanup activities; and 

(J) Direct cleanup activities until 

properly relieved of this responsibility. 

(4) Hazard evaluation. The response 

plan shall discuss the facility’s known 

or reasonably identifiable history of 

discharges reportable under 40 CFR 

part 110 for the entire life of the facility and shall identify areas within the 

facility where discharges could occur 

and what the potential effects of the 

discharges would be on the affected environment. To assess the range of areas 

potentially affected, owners or operators shall, where appropriate, consider 

the distance calculated in paragraph 

(f)(1)(ii) of this section to determine 

whether a facility could, because of its 

location, reasonably be expected to 

cause substantial harm to the environment by discharging oil into or on the 

navigable waters or adjoining shorelines. 

(5) Response planning levels. The response plan shall include discussion of 

specific planning scenarios for: 

(i) A worst case discharge, as calculated using the appropriate worksheet in appendix D to this part. In 

cases where the Regional Administrator determines that the worst case 

discharge volume calculated by the facility is not appropriate, the Regional 

Administrator may specify the worst 

case discharge amount to be used for 

response planning at the facility. For 

complexes, the worst case planning 

quantity shall be the larger of the 

amounts calculated for each component of the facility; 

(ii) A discharge of 2,100 gallons or 

less, provided that this amount is less 

than the worst case discharge amount. 

For complexes, this planning quantity 

shall be the larger of the amounts calculated for each component of the facility; and 

(iii) A discharge greater than 2,100 

gallons and less than or equal to 36,000 

gallons or 10 percent of the capacity of 

the largest tank at the facility, whichever is less, provided that this amount 

is less than the worst case discharge 

amount. For complexes, this planning 

quantity shall be the larger of the 

amounts calculated for each component of the facility. 

(6) Discharge detection systems. The response plan shall describe the procedures and equipment used to detect discharges. 

(7) Plan implementation. The response 

plan shall describe: 

(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 §112.21; 

(iii) A description of the training program to be carried out under the response plan as described in §112.21; and 

(iv) Logs of discharge prevention 

meetings, training sessions, and drills/ 

exercises. These logs may be maintained as an annex to the response 

plan. 

(9) Diagrams. The response plan shall 

include site plan and drainage plan diagrams. 

(10) Security systems. The response 

plan shall include a description of facility security systems. 

(11) Response plan cover sheet. The response plan shall include a completed 


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Environmental Protection Agency § 112.21 

response plan cover sheet provided in 

section 2.0 of appendix F to this part. 

(i)(1) In the event the owner or operator of a facility does not agree with 

the Regional Administrator’s determination that the facility could, because of its location, reasonably be expected to cause substantial harm or 

significant and substantial harm to the 

environment by discharging oil into or 

on the navigable waters or adjoining 

shorelines, or that amendments to the 

facility response plan are necessary 

prior to approval, such as changes to 

the worst case discharge planning volume, the owner or operator may submit a request for reconsideration to 

the Regional Administrator and provide additional information and data in 

writing to support the request. The request and accompanying information 

must be submitted to the Regional Administrator within 60 days of receipt of 

notice of the Regional Administrator’s 

original decision. The Regional Administrator shall consider the request and 

render a decision as rapidly as practicable. 

(2) In the event the owner or operator 

of a facility believes a change in the facility’s classification status is warranted because of an unplanned event 

or change in the facility’s characteristics (i.e., substantial harm or significant and substantial harm), the owner 

or operator may submit a request for 

reconsideration to the Regional Administrator and provide additional information and data in writing to support the request. The Regional Administrator shall consider the request and 

render a decision as rapidly as practicable. 

(3) After a request for reconsideration under paragraph (i)(1) or (i)(2) of 

this section has been denied by the Regional Administrator, an owner or operator may appeal a determination 

made by the Regional Administrator. 

The appeal shall be made to the EPA 

Administrator and shall be made in 

writing within 60 days of receipt of the 

decision from the Regional Administrator that the request for reconsideration was denied. A complete copy of 

the appeal must be sent to the Regional Administrator at the time the 

appeal is made. The appeal shall contain a clear and concise statement of 

the issues and points of fact in the 

case. It also may contain additional information from the owner or operator, 

or from any other person. The EPA Administrator may request additional information from the owner or operator, 

or from any other person. The EPA Administrator shall render a decision as 

rapidly as practicable and shall notify 

the owner or operator of the decision. 

[59 FR 34098, July 1, 1994, as amended at 65 

FR 40798, June 30, 2000; 66 FR 34560, June 29, 

2001; 67 FR 47151, July 17, 2002] 

§ 112.21 Facility response training and 

drills/exercises. 

(a) The owner or operator of any facility required to prepare a facility response plan under §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 §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 


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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] 

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. 


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Environmental Protection Agency Pt. 112, App. B 

(C) Interstate and intrastate onshore and 

offshore pipeline systems including pumps 

and appurtenances related thereto as well as 

in-line or breakout storage tanks needed for 

the continuous operation of a pipeline system, and pipelines from onshore and offshore 

oil production facilities, but excluding onshore and offshore piping from wellheads to 

oil separators and pipelines which are used 

for the transport of oil exclusively within 

the confines of a nontransportation-related 

facility or terminal facility and which are 

not intended to transport oil in interstate or 

intrastate commerce or to transfer oil in 

bulk to or from a vessel. 

(D) Highway vehicles and railroad cars 

which are used for the transport of oil in 

interstate or intrastate commerce and the 

equipment and appurtenances related thereto, and equipment used for the fueling of locomotive units, as well as the rights-of-way 

on which they operate. Excluded are highway vehicles and railroad cars and motive 

power used exclusively within the confines of 

a nontransportation-related facility or terminal facility and which are not intended for 

use in interstate or intrastate commerce. 

APPENDIX B TO PART 112—MEMORANDUM

OF UNDERSTANDING AMONG THE SECRETARY OF THE INTERIOR, SECRETARY OF TRANSPORTATION, AND

ADMINISTRATOR OF THE ENVIRONMENTAL PROTECTION AGENCY

PURPOSE

This Memorandum of Understanding 

(MOU) establishes the jurisdictional responsibilities for offshore facilities, including 

pipelines, pursuant to section 311 (j)(1)(c), 

(j)(5), and (j)(6)(A) of the Clean Water Act 

(CWA), as amended by the Oil Pollution Act 

of 1990 (Public Law 101–380). The Secretary of 

the Department of the Interior (DOI), Secretary of the Department of Transportation 

(DOT), and Administrator of the Environmental Protection Agency (EPA) agree to 

the division of responsibilities set forth 

below for spill prevention and control, response planning, and equipment inspection 

activities pursuant to those provisions. 

BACKGROUND

Executive Order (E.O.) 12777 (56 FR 54757) 

delegates to DOI, DOT, and EPA various responsibilities identified in section 311(j) of 

the CWA. Sections 2(b)(3), 2(d)(3), and 2(e)(3) 

of E.O. 12777 assigned to DOI spill prevention 

and control, contingency planning, and 

equipment inspection activities associated 

with offshore facilities. Section 311(a)(11) defines the term ‘‘offshore facility’’ to include 

facilities of any kind located in, on, or under 

navigable waters of the United States. By 

using this definition, the traditional DOI 

role of regulating facilities on the Outer 

Continental Shelf is expanded by E.O. 12777 

to include inland lakes, rivers, streams, and 

any other inland waters. 

RESPONSIBILITIES

Pursuant to section 2(i) of E.O. 12777, DOI 

redelegates, and EPA and DOT agree to assume, the functions vested in DOI by sections 2(b)(3), 2(d)(3), and 2(e)(3) of E.O. 12777 

as set forth below. For purposes of this MOU, 

the term ‘‘coast line’’ shall be defined as in 

the Submerged Lands Act (43 U.S.C. 1301(c)) 

to mean ‘‘the line of ordinary low water 

along that portion of the coast which is in 

direct contact with the open sea and the line 

marking the seaward limit of inland 

waters.’’ 

1. To EPA, DOI redelegates responsibility 

for non-transportation-related offshore facilities located landward of the coast line. 

2. To DOT, DOI redelegates responsibility 

for transportation-related facilities, including pipelines, located landward of the coast 

line. The DOT retains jurisdiction for deepwater ports and their associated seaward 

pipelines, as delegated by E.O. 12777. 

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 Pen ̃ a, 

Secretary of Transportation. 


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Pt. 112, App. C 40 CFR Ch. I (7–1–15 Edition) 

Dated: February 3, 1994. 

Carol M. Browner, 

Administrator, Environmental Protection 

Agency. 

[59 FR 34102, July 1, 1994] 

APPENDIX C TO PART 112—SUBSTANTIAL

HARM CRITERIA

1.0 INTRODUCTION

The flowchart provided in Attachment C–I 

to this appendix shows the decision tree with 

the criteria to identify whether a facility 

‘‘could reasonably be expected to cause substantial harm to the environment by discharging into or on the navigable waters or 

adjoining shorelines.’’ In addition, the Regional Administrator has the discretion to 

identify facilities that must prepare and submit facility-specific response plans to EPA. 

1.1 Definitions 

1.1.1 Great Lakes means Lakes Superior, 

Michigan, Huron, Erie, and Ontario, their 

connecting and tributary waters, the Saint 

Lawrence River as far as Saint Regis, and 

adjacent port areas. 

1.1.2 Higher Volume Port Areas include 

(1) Boston, MA; 

(2) New York, NY; 

(3) Delaware Bay and River to Philadelphia, PA; 

(4) St. Croix, VI; 

(5) Pascagoula, MS; 

(6) Mississippi River from Southwest Pass, 

LA to Baton Rouge, LA; 

(7) Louisiana Offshore Oil Port (LOOP), 

LA; 

(8) Lake Charles, LA; 

(9) Sabine-Neches River, TX; 

(10) Galveston Bay and Houston Ship Channel, TX; 

(11) Corpus Christi, TX; 

(12) Los Angeles/Long Beach Harbor, CA; 

(13) San Francisco Bay, San Pablo Bay, 

Carquinez Strait, and Suisun Bay to Antioch, CA; 

(14) Straits of Juan de Fuca from Port Angeles, WA to and including Puget Sound, 

WA; 

(15) Prince William Sound, AK; and 

(16) Others as specified by the Regional Administrator for any EPA Region. 

1.1.3 Inland Area means the area shoreward of the boundary lines defined in 46 CFR 

part 7, except in the Gulf of Mexico. In the 

Gulf of Mexico, it means the area shoreward 

of the lines of demarcation (COLREG lines as 

defined in 33 CFR 80.740–80.850). The inland 

area does not include the Great Lakes. 

1.1.4 Rivers and Canals means a body of 

water confined within the inland area, including the Intracoastal Waterways and 

other waterways artificially created for 

navigating that have project depths of 12 feet 

or less. 

2.0 DESCRIPTION OF SCREENING CRITERIA FOR

THE SUBSTANTIAL HARM FLOWCHART

A facility that has the potential to cause 

substantial harm to the environment in the 

event of a discharge must prepare and submit a facility-specific response plan to EPA 

in accordance with appendix F to this part. 

A description of the screening criteria for 

the substantial harm flowchart is provided 

below: 

2.1 Non-Transportation-Related Facilities 

With a Total Oil Storage Capacity Greater Than 

or Equal to 42,000 Gallons Where Operations Include Over-Water Transfers of Oil. A nontransportation-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. 


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Environmental Protection Agency Pt. 112, App. C 

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). 

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. 


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ATTACHMENTS TO APPENDIX C 


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Environmental Protection Agency Pt. 112, App. C 

1 If a comparable formula is used, documentation of the reliability and analytical 

soundness of the comparable formula must 

be attached to this form. 2For 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). 

ATTACHMENT C-II—CERTIFICATION OF THE APPLICABILITY OF THE SUBSTANTIAL HARM CRITERIA

Facility Name: lllllllllllllll

Facility Address: llllllllllllll

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 lll No lll

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 lll No lll

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 lll No lll

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

Yes lll No lll

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 lll No lll

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. 

llllllllllllllllllllllll

Signature 

llllllllllllllllllllllll

Name (please type or print) 

llllllllllllllllllllllll

Title 

llllllllllllllllllllllll

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 


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1For 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. 

writing that an alternative formula was 

used. 1

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 §112.20(a)(3) to calculate the planning distance for oil transport 

on moving navigable water: 

d=v×t×c; where 

d: the distance downstream from a facility 

within which fish and wildlife and sensitive environments could be injured or a 

public drinking water intake would be 

shut down in the event of an oil discharge (in miles); 

v: the velocity of the river/navigable water of 

concern (in ft/sec) as determined by 

Chezy-Manning’s equation (see below and 

Tables 1 and 2 of this attachment); 

t: the time interval specified in Table 3 based 

upon the type of water body and location 

(in hours); and 

c: constant conversion factor 0.68 secw mile/ 

hrw ft (3600 sec/hr ÷ 5280 ft/mile). 

2.2 Chezy-Manning’s equation is used to determine velocity: 

v=1.5/n×r2⁄3×s1⁄2; 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 midVerDate Sep<11>2014 10:27 Sep 02, 2015 Jkt 235172 PO 00000 Frm 00074 Fmt 8010 Sfmt 8002 Y:\SGML\235172.XXX 235172

Lhorne on DSK5TPTVN1PROD with CFR
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channel depth of the river (in feet) by 

0.667 (sources for obtaining the mid-channel depth are listed in Table 2 of this attachment); and 

s=the average slope of the river (unitless) obtained from U.S. Geological Survey topographic maps at the address listed in 

Table 2 of this attachment. 

TABLE 1—MANNING’S ROUGHNESS COEFFICIENT

FOR NATURAL STREAMS

[NOTE: Coefficients are presented for high flow rates at or 

near flood stage.] 

Stream description 

Roughness 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 CHEZYMANNING 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 


Lhorne on DSK5TPTVN1PROD with CFR
66 

Pt. 112, App. C 40 CFR Ch. I (7–1–15 Edition) 

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)] × [1 mile/5280 

feet] 

2.4 If it is not feasible to determine the 

slope and mid-channel depth by the ChezyManning 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

Operating 

areas Substantial harm planning time (hrs) 

Higher volume 

port area.

12 hour arrival+3 hour deployment=15 

hours. 

Great Lakes ... 24 hour arrival+3 hour deployment=27 

hours. 

TABLE 3—SPECIFIED TIME INTERVALS— 

Continued 

Operating 

areas Substantial harm planning time (hrs) 

All other rivers 

and canals, 

inland, and 

nearshore 

areas.

24 hour arrival+3 hour 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] × [1 mile/5280 

feet] = 1.3 × 10¥4

The average mid-channel depth is found by 

averaging the mid-channel depth for each 

mile along the length of the river between 

the facility and the public drinking water intake or the fish or wildlife or sensitive environment (or 20 miles downstream if applicable). This value is multiplied by 0.667 to obtain the hydraulic radius. The mid-channel 

depth is found by obtaining values for r and 

s from the sources shown in Table 2 for the 

Monongahela River. 

Solving: 

r = 0.667 × 20 feet = 13.33 feet 

Solve for v using: 

v = 1.5/n × r2⁄3 × s1⁄2: 

v = [1.5/0.035] × (13.33)2⁄3 × (1.3 × 10¥4)1⁄2

v = 2.73 feet/second 

(2) Find t from Table 3 of this attachment. 

The Monongahela River’s resource response 

time is 27 hours. 

(3) Solve for planning distance, d: 

d = v × t × c 

d = (2.73 ft/sec) × (27 hours) × (0.68 secw mile/ 

hrw 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 


Lhorne on DSK5TPTVN1PROD with CFR
67 

Environmental Protection Agency Pt. 112, App. C 

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. 3 Oil Spill Prevention & Control. National 

Spill Control School, Corpus Christi State 

University, Thirteenth Edition, May 1990. 

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: 

A1 = 105×V3⁄4×C 

C=0.1643 

A1 = 105×(2,000,000 gallons)3⁄4×(0.1643) 

A1 = 8.74×108 ft2

(2) The spreading formula is based on the 

theoretical condition that the oil will spread 

uniformly in all directions forming a circle. 

In reality, the outfall of the discharge will 

direct the oil to the surface of the water 

where it intersects the shoreline. Although 

the oil will not spread uniformly in all directions, it is assumed that the discharge will 

spread from the shoreline into a semi-circle 

(this assumption does not account for winds 

or wave action). 

(3) The area of a circle=† r2

(4) To account for the assumption that oil 

will spread in a semi-circular shape, the area 

of a circle is divided by 2 and is designated as 

A2. 

A2 = († r2)/2 

Solving for the radius, r, using the relationship A1 = A2: 8.74×108 ft2 = (†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 knots×1.15 miles/hour/knot=23 miles/hr 

Assuming that the oil slick moves at 3 percent of the wind’s speed: 3

23 miles/hour×0.03=0.69 miles/hour 

(5) To estimate the distance that the oil 

will travel, use the times required for response resources to arrive at different geographic locations as shown in Table 3 of this 

attachment. 

For example: 

For Higher Volume Port Areas: 15 hrs×0.69 

miles/hr=10.4 miles 

For Great Lakes and all other areas: 27 

hrs×0.69 miles/hr=18.6 miles 

(6) The total distance that the oil will 

travel from the point of discharge, including 

the distance due to spreading, is calculated 

as follows: 

Higher Volume Port Areas: d=10.4+4.5 miles 

or approximately 15 miles 

Great Lakes and all other areas: d=18.6+4.5 

miles or approximately 23 miles 

4.0 Oil Transport on Tidal-Influence Areas 

4.1 The planning distance method for 

tidal influence navigable water is based on 

worst case discharges of persistent and nonpersistent oils. Persistent oils are of primary 

concern because they can potentially cause 

harm over a greater distance. For persistent 

oils discharged into tidal waters, the planning distance is 15 miles from the facility 

down current during ebb tide and to the 

point of maximum tidal influence or 15 

miles, whichever is less, during flood tide. 

4.2 For non-persistent oils discharged into 

tidal waters, the planning distance is 5 miles 

from the facility down current during ebb 

tide and to the point of maximum tidal influence or 5 miles, whichever is less, during 

flood tide. 

4.3 Example of Determining the Planning 

Distance for Two Types of Navigable Water 

Conditions. Below is an example of how to determine the proper planning distance when a 

facility could impact two types of navigable 

water conditions: moving water and tidal 

water. 

(1) Facility X stores persistent oil and is 

located downstream from locks along a slow 

moving river which is affected by tides. The 

river velocity, v, is determined to be 0.5 feet/ 

second from the Chezy-Manning equation 

used to calculate oil transport on moving 

navigable waters. The specified time interval, t, obtained from Table 3 of this attachment for river areas is 27 hours. Therefore, 

solving for the planning distance, d: 

d=v×t×c 

d=(0.5 ft/sec)×(27 hours)×(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 


Lhorne on DSK5TPTVN1PROD with CFR
68 

Pt. 112, App. C 40 CFR Ch. I (7–1–15 Edition) 

4The design velocities were obtained from 

Howard County, Maryland Department of 

Public Works’ Storm Drainage Design Manual. 

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: 

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. 


Lhorne on DSK5TPTVN1PROD with CFR
69 

Environmental Protection Agency Pt. 112, App. C 

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


Lhorne on DSK5TPTVN1PROD with CFREC01MR92.010</GPH>
70 

Pt. 112, App. D 40 CFR Ch. I (7–1–15 Edition) 

1 ‘‘Storage facilities’’ represent all facilities subject to this part, excluding oil production facilities. 

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

Part A of this worksheet is to be completed by the owner or operator of an SPCCregulated 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: 

llll GAL 

(2) Do not proceed further. 


Lhorne on DSK5TPTVN1PROD with CFR
71 

Environmental Protection Agency Pt. 112, App. D 

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). 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. 

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

llll (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: 

llll 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). 

llll 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 llll 

GAL 

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: 

llll 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? 

lll (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: 

llll GAL 

(B) Do not proceed further. 


Lhorne on DSK5TPTVN1PROD with CFR
72 

Pt. 112, App. D 40 CFR Ch. I (7–1–15 Edition) 

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. 

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). 

llll 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

llll GAL 

(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 × rate of well. 

(2) For wells deeper than 10,000 feet: 

Production volume=45 days × 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) × (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)] × (rate of well) 

× (rate of well/rate of recovery) 

(2) For wells deeper than 10,000 feet: 

Discharge volume2 = [45 days¥(days unattended + days to respond)] × (rate of well) 

× (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) × (10 

barrels per day)=90 barrels 

(3) The second term of the equation is: 

Discharge volume2 = [30 days—(7 days + 2 

days)] × (10 barrels per day) × (0.5)=105 

barrels 

(4) Therefore, the production volume is: 

Production volume=90 barrels + 105 

barrels=195 barrels 


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Environmental Protection Agency Pt. 112, App. E 

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 × 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] 

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 §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 

§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. 


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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 §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 


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Environmental Protection Agency Pt. 112, App. E 

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 §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 §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 §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 §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 


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Pt. 112, App. E 40 CFR Ch. I (7–1–15 Edition) 

contract or other approved means as described in §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 §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 hours) 

Tier 2 

(in hours) 

Tier 3 

(in 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 onwater 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 

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 §112.2, to arrive onVerDate Sep<11>2014 10:27 Sep 02, 2015 Jkt 235172 PO 00000 Frm 00086 Fmt 8010 Sfmt 8002 Y:\SGML\235172.XXX 235172

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Environmental Protection Agency Pt. 112, App. E 

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 §112.2, the availability 

of an oil spill removal organization(s) (as described in §112.2) capable of responding to a 

shoreline cleanup operation involving the 

calculated volume of oil and emulsified oil 

that might impact the affected 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 × 24 hours × 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 × 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. 

6.3.2 A facility owner or operator submitting a response plan shall provide data that 

supports the effective daily recovery capacities for the oil recovery devices listed. The 

following is an example of these calculations: 

(1) A weir skimmer identified in a response 

plan has a manufacturer’s rated throughput 

at the pump of 267 gallons per minute (gpm). 

267 gpm=381 barrels per hour (bph) 

R=381 bph×24 hr/day×0.2=1,829 barrels per day 


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Pt. 112, App. E 40 CFR Ch. I (7–1–15 Edition) 

(2) After testing using ASTM procedures, 

the skimmer’s oil recovery rate is determined to be 220 gpm. The facility owner or 

operator identifies sufficient resources available to support operations for 12 hours per 

day. 

220 gpm=314 bph 

R=314 bph×12 hr/day=3,768 barrels per day 

(3) The facility owner or operator will be 

able to use the higher capacity if sufficient 

temporary oil storage capacity is available. 

Determination of alternative efficiency factors under section 6.2 of this appendix or the 

acceptability of an alternative effective 

daily recovery capacity under section 6.3 of 

this appendix will be made by the Regional 

Administrator as deemed appropriate. 

7.0 Calculating Planning Volumes for a Worst 

Case Discharge—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 §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 §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 §112.2, 

for additional capacity to be under contract 

by 1998 or 2003, as appropriate. For a facility 

that handles multiple groups of oil, the required effective daily recovery capacity for 

each oil group is calculated before applying 

the cap. The oil group calculation resulting 

in the largest on-water recovery volume 

must be used to plan for the amount of response resources for a worst case discharge, 

unless the oil group comprises 10 percent or 

less by volume of the facility’s total oil storage capacity. 

7.3 The procedures discussed in sections 

7.3.1–7.3.3 of this appendix must be used to 

calculate the planning volume for identifying shoreline cleanup capacity (for Group 1 

through Group 4 oils). 

7.3.1 The following must be determined: 

the worst case discharge volume of oil for 


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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 

§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 §112.2. 

The equipment identified in a response plan 

shall, as appropriate, include: 

(1) Sonar, sampling equipment, or other 

methods for locating the oil on the bottom 

or suspended in the water column; 

(2) Containment boom, sorbent boom, silt 

curtains, or other methods for containing 

the oil that may remain floating on the surface or to reduce spreading on the bottom; 

(3) Dredges, pumps, or other equipment 

necessary to recover oil from the bottom and 

shoreline; 

(4) Equipment necessary to assess the impact of such discharges; and 

(5) Other appropriate equipment necessary 

to respond to a discharge involving the type 

of oil handled, stored,, or transported. 

7.6.2 Response resources identified in a response plan for a facility that handles, 

stores, or transports Group 5 oils under section 7.6.1 of this appendix shall be capable of 

being deployed (on site) within 24 hours of 

discovery of a discharge to the area where 

the facility is operating. 


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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 §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 §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 §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 §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. 

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 


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Environmental Protection Agency Pt. 112, App. E 

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 §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 §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 §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 

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 §112.2. The facility owner shall also identify how much 

boom is available for use. 


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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 §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 §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 §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 

(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. 


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Environmental Protection Agency Pt. 112, App. E 

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 

§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 × 0.2 × 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 planning volume ............................................................ .15 .25 .40 

Estimated Daily Recovery Capacity (bbls) ...................................................................................... 30,000 50,000 80,000 

10.5.3 Because the requirements for OnWater 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 × 0.65 × 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 

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 


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Pt. 112, App. E 40 CFR Ch. I (7–1–15 Edition) 

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 §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 §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 §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 

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 §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. 


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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 §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. 

TABLE 1 TO APPENDIX E—RESPONSE RESOURCE OPERATING CRITERIA

Oil Recovery Devices 

Operating environment Significant wave 

height 1 Sea state 

Rivers and Canals ................................................................................................................. ≤1 foot ....................... 1 

Inland ..................................................................................................................................... ≤3 feet ....................... 2 


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TABLE 1 TO APPENDIX E—RESPONSE RESOURCE OPERATING CRITERIA—Continued 

Oil Recovery Devices 

Operating environment Significant wave 

height 1 Sea state 

Great Lakes ........................................................................................................................... ≤4 feet ....................... 2–3 

Ocean .................................................................................................................................... ≤6 feet ....................... 3–4 

Boom 

Boom property 

Use 

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 freeboard) ................................... 6–18 ............ 18–42 .......... 18–42 .......... ≥42 

Reserve Buoyancy to Weight Ratio ................................................ 2:1 ............... 2:1 ............... 2:1 ............... 3:1 to 4:1 

Total Tensile Strength—pounds ..................................................... 4,500 ........... 15,000– 

20,000.

15,000– 

20,000.

≥20,000 

Skirt Fabric Tensile Strength—pounds ........................................... 200 .............. 300 .............. 300 .............. 500 

Skirt Fabric Tear Strength—pounds ............................................... 100 .............. 100 .............. 100 .............. 125 

1Oil 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 recovery 3 days 4 days 

Oil group 1

Percent natural dissipa- tion Percent recovered 

floating oil 

Percent oil 

onshore 

Percent natural dissipa- tion Percent recovered 

floating oil 

Percent oil 

onshore 

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 

1The 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. 

1See 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. 

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. 


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TABLE 5 TO APPENDIX E—RESPONSE CAPABILITY CAPS BY OPERATING AREA—Continued 

Tier 1 Tier 2 Tier 3 

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/ 

day 

3.75K bbls/day 7.5K bbls/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 recovery 3 days 4 days 

Oil group 1 Percent natural loss 

Percent recovered 

floating oil 

Percent recovered oil 

from onshore 

Percent natural loss 

Percent recovered 

floating oil 

Percent recovered oil 

from onshore 

Group A ................................................. 40 15 45 50 20 30 

Group B ................................................. 20 15 65 30 20 50 

1Substances 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 appro- priate 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 

1Substances 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. 


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ATTACHMENTS TO APPENDIX E 


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Environmental Protection Agency Pt. 112, App. E 


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Pt. 112, App. E 40 CFR Ch. I (7–1–15 Edition) 


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Environmental Protection Agency Pt. 112, App. E 


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Pt. 112, App. E 40 CFR Ch. I (7–1–15 Edition) 


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Environmental Protection Agency Pt. 112, App. E 


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Pt. 112, App. E 40 CFR Ch. I (7–1–15 Edition) 


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Environmental Protection Agency Pt. 112, App. F 

[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 34560, June 29, 2001] 

APPENDIX F TO PART 112—FACILITYSPECIFIC 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 


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Pt. 112, App. F 40 CFR Ch. I (7–1–15 Edition) 

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 §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 §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. 


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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 


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Pt. 112, App. F 40 CFR Ch. I (7–1–15 Edition) 

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. 

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. 

1.2.4 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: lll 

FACILITY INFORMATION FORM

Facility Name: lllllllllllllll

Location (Street Address): llllllll

City: lll State: lll Zip: lll 

County: lll Phone Number: ( ) lll 

Latitude: lll Degrees lll Minutes 

lll Seconds 

Longitude: lll Degrees lll Minutes 

lll Seconds 

Wellhead Protection Area: lllllllll

Owner: lllllllllllllllllll

Owner Location (Street Address): llll

(if different from Facility Address) 

City: lll State:lll Zip: lll 

County: lll Phone Number: ( ) lll 

Operator (if not Owner): llllllllll

Qualified Individual(s): (attach additional 

sheets if more than one) 

Name: lllllllllllllllllll

Position: lllllllllllllllll

Work Address: lllllllllllllll

Home Address: llllllllllllll

Emergency Phone Number: ( ) llll


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Environmental Protection Agency Pt. 112, App. F 

Date of Oil Storage Start-up: llllllll

Current Operations: lllllllllllll

llllllllllllllllllllllll

llllllllllllllllllllllll

Date(s) and Type(s) of Substantial Expansion(s): llllllllllllllllll

llllllllllllllllllllllll

(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 facilityowned 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: llllllllllll


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EMERGENCY NOTIFICATION PHONE LIST WHOM

TO NOTIFY

Reporter’s Name: llllllllllllll

Date: llllllllllllllllllll

Facility Name: lllllllllllllll

Owner Name: llllllllllllllll

Facility Identification Number: llllll

Date and Time of Each NRC Notification: l

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: lllllllllll

First: llllllllllllllllllll

M.I.: lllllllllllllllllllll

Position: llllllllllllllllll

Phone Numbers: 

Day ( ) – 

Evening ( ) – 

Company: llllllllllllllllll

Organization Type: lllllllllllll

Address: lllllllllllllllllll

llllllllllllllllllllllll

City: lllllllllllllllllllll

State: llllllllllllllllllll

Zip: lllllllllllllllllllll

Were Materials Discharged? lll (Y/N) Confidential? lll (Y/N) 

Meeting Federal Obligations to Report? 

lll (Y/N) Date Called: lll 

Calling for Responsible Party? lll (Y/N) 

Time Called: lll 

Incident Description 

Source and/or Cause of Incident: llllll

llllllllllllllllllllllll

llllllllllllllllllllllll

llllllllllllllllllllllll

llllllllllllllllllllllll

Date of Incident: llllllllllllll

Time of Incident: lll AM/PM 

Incident Address/Location: lllllllll

llllllllllllllllllllllll

Nearest City:llllllll State: lll 

County: llll Zip: llll 

Distance from City: lll Units of Measure: 

lll Direction from City: lll 

Section: llll Township: llll Range: 

llll Borough: llll 

Container Type: lll Tank Oil Storage Capacity: llll Units of Measure: lll 

Facility Oil Storage Capacity: llll Units 

of Measure: lll 

Facility Latitude: lll Degrees lll Minutes lll Seconds 

Facility Longitude: lll Degrees lll 

Minutes lll Seconds 

Material 

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


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Environmental Protection Agency Pt. 112, App. F 

Response Action 

Actions Taken to Correct, Control or Mitigate Incident: 

llllllllllllllllllllllll

llllllllllllllllllllllll

llllllllllllllllllllllll

llllllllllllllllllllllll

Impact 

Number of Injuries: lll Number of Deaths: 

lll 

Were there Evacuations? lll (Y/N) Number Evacuated: lll 

Was there any Damage? lll (Y/N) 

Damage in Dollars (approximate): lllll

Medium Affected: llllllllllllll

Description: lllllllllllllllll

More Information about Medium: lllll

llllllllllllllllllllllll

llllllllllllllllllllllll

Additional Information 

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

llllllllllllllllllllllll

llllllllllllllllllllllll

llllllllllllllllllllllll

Caller Notifications 

EPA? lll (Y/N) USCG? lll (Y/N) State? 

lll (Y/N) 

Other? lll (Y/N) Describe: llllll 

1.3.2 Response Equipment List 

Date of Last Update:lll 

FACILITY RESPONSE EQUIPMENT LIST

1. Skimmers/Pumps—Operational Status: l

Type, Model, and Year: llllllllll

llllllllllllllllllllll

Type Model Year 

Number: llllllllllllllllll

Capacity: llll gal./min. 

Daily Effective Recovery Rate: llllll

Storage Location(s): lllllllllll

Date Fuel Last Changed: lllllllll

2. Boom—Operational Status: llllllll

Type, Model, and Year: llllllllll

Type Model Year 

Number: llllllllllllllllll

Size (length): llll ft. 

Containment Area: llll sq. ft. 

Storage Location: lllllllllllll

3. Chemicals Stored (Dispersants listed on 

EPA’s NCP Product Schedule) 

Type Amount Date purchased 

Treatment 

capacity 

Storage 

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?lll (Y/N). 

Name and State of On-Scene Coordinator 

(OSC) authorizing use: lll . 

Date Authorized: lll . 

4. Dispersant Dispensing Equipment—Operational Status: lll . 

Type and year Capacity Storage 

location 

Response 

time 

(minutes) 

5. Sorbents—Operational Status: llllll

Type and Year Purchased: llllllll

Amount: llllllllllllllllll

Absorption Capacity (gal.): llllllll

Storage Location(s): lllllllllll

6. Hand Tools—Operational Status: lllll

Type and year Quantity Storage 

location 


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Pt. 112, App. F 40 CFR Ch. I (7–1–15 Edition) 

Type and year Quantity Storage 

location 

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

lll 

Type and year Quantity Storage location/ 

number 

8. Fire Fighting and Personnel Protective 

Equipment—Operational Status: lll 

Type and year Quantity Storage 

location 

9. Other (e.g., Heavy Equipment, Boats and 

Motors)—Operational Status: lll 

Type and year Quantity Storage 

location 

1.3.3 Response Equipment Testing/Deployment 

Date of Last Update:llll 

Response Equipment Testing and 

Deployment Drill Log 

Last Inspection or Response Equipment Test 

Date: lllllllllllllllllll

Inspection Frequency: lllllllllll

Last Deployment Drill Date: llllllll

Deployment Frequency: llllllllll

Oil Spill Removal Organization Certification 

(if applicable): lllllllllllllll

1.3.4 Personnel 

Date of Last Update:llll 

EMERGENCY RESPONSE PERSONNEL

Company Personnel 

Name Phone 1 Response time Responsibility during response action Response training type/date 

1. 

2. 

3. 

4. 

5. 

6. 

7. 

8. 

9. 

10. 

11. 

12. 

1Phone number to be used when person is not on-site. 

EMERGENCY RESPONSE CONTRACTORS

Date of Last Update: llll 

Contractor Phone Response time Contract responsibility 1

1. 


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Environmental Protection Agency Pt. 112, App. F 

EMERGENCY RESPONSE CONTRACTORS—Continued 

Date of Last Update: llll 

Contractor Phone Response time Contract responsibility 1

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:llll 

Team member Response time (minutes) Phone or pager number (day/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. 


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Pt. 112, App. F 40 CFR Ch. I (7–1–15 Edition) 

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 §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 §112.20(h)(3)(ix). The 

qualified individual’s duties must be described and be consistent with the minimum 

requirements in §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 


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Environmental Protection Agency Pt. 112, App. F 

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: llll 

Tank No. 

Substance Stored 

(Oil and Hazardous 

Substance) 

Quantity Stored 

(gallons) Tank Type/Year Maximum Capacity (gallons) Failure/Cause 

1Tank = any container that stores oil. 

Attach as many sheets as necessary. 

HAZARD IDENTIFICATION SURFACE IMPOUNDMENTS (SIS) 

Date of Last Update: llll 

SI No. Substance Stored Quantity Stored 

(gallons) Surface Area/Year Maximum Capacity (gallons) Failure/Cause 


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Pt. 112, App. F 40 CFR Ch. I (7–1–15 Edition) 

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). 

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. 

HAZARD IDENTIFICATION SURFACE IMPOUNDMENTS (SIS)—Continued 

Date of Last Update: llll 

SI No. Substance Stored Quantity Stored 

(gallons) Surface Area/Year Maximum Capacity (gallons) Failure/Cause 

Attach as many sheets as necessary. 

1.4.2 Vulnerability Analysis 

The vulnerability analysis shall address 

the potential 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

(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: 

(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. 


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Environmental Protection Agency Pt. 112, App. F 

The information solicited in this section 

may be similar to requirements in 40 CFR 

112.4(a). Any duplicate information required 

by §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. 


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Pt. 112, App. F 40 CFR Ch. I (7–1–15 Edition) 

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. 

OIL SPILL RESPONSE—IMMEDIATE ACTIONS— 

Continued 

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. 

Material Disposal facility Location RCRA permit/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: 


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Environmental Protection Agency Pt. 112, App. F 

(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

Inspector Tank or SI# Date Comments 


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Pt. 112, App. F 40 CFR Ch. I (7–1–15 Edition) 

TANK/SURFACE IMPOUNDMENT INSPECTION LOG—Continued 

Inspector Tank or SI# Date Comments 

1.8.1.2 Response Equipment Inspection 

Using the Emergency Response Equipment 

List provided in section 1.3.2 of the response 

plan, describe each type of response equipment, checking for the following: 

Response Equipment Checklist 

1. Inventory (item and quantity); 

2. Storage location; 

3. Accessibility (time to access and respond); 

4. Operational status/condition; 

5. Actual use/testing (last test date and frequency of testing); and 

6. Shelf life (present age, expected replacement date). 

Please note any discrepancies between this 

list and the available response equipment. 

RESPONSE EQUIPMENT INSPECTION LOG

[Use section 1.3.2 of the response plan as a checklist] 

Inspector Date Comments 


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Environmental Protection Agency Pt. 112, App. F 

RESPONSE EQUIPMENT INSPECTION LOG—Continued 

[Use section 1.3.2 of the response plan as a checklist] 

Inspector Date Comments 

1.8.1.3 Secondary Containment Inspection 

Inspect the secondary containment (as described in 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 §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. 


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1.8.2.1 Qualified Individual Notification Drill 

Logs 

Qualified Individual Notification Drill Log 

Date: llllllllllllllllllll

Company: llllllllllllllllll

Qualified Individual(s): lllllllllll

Emergency Scenario: llllllllllll

llllllllllllllllllllllll

llllllllllllllllllllllll

Evaluation: lllllllllllllllll

llllllllllllllllllllllll

llllllllllllllllllllllll

llllllllllllllllllllllll

Changes to be Implemented: llllllll

llllllllllllllllllllllll

llllllllllllllllllllllll

Time Table for Implementation: llllll

llllllllllllllllllllllll

1.8.2.2 Spill Management Team Tabletop 

Exercise Logs 

Spill Management Team Tabletop Exercise 

Log 

Date: llllllllllllllllllll

Company: llllllllllllllllll

Qualified Individual(s): lllllllllll

Emergency Scenario: llllllllllll

llllllllllllllllllllllll

llllllllllllllllllllllll

Evaluation: lllllllllllllllll

llllllllllllllllllllllll

llllllllllllllllllllllll

llllllllllllllllllllllll

Changes to be Implemented: llllllll

llllllllllllllllllllllll

llllllllllllllllllllllll

Time Table for Implementation: llllll

1.8.3 Response Training 

Section 112.21(a) requires facility owners or 

operators to develop programs for facility response training. Facility owners or operators 

are required by §112.20(h)(8)(iii) to provide a 

description of the response training program 

to be carried out under the response plan. A 

facility’s 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

Name Response training/date and number of hours 

Prevention training/date and number of hours 

1.8.3.2 Discharge Prevention Meetings Logs 

DISCHARGE PREVENTION MEETING LOG

Date: llllllllllllllllllll

Attendees: llllllllllllllllll

llllllllllllllllllllllll

llllllllllllllllllllllll

llllllllllllllllllllllll

llllllllllllllllllllllll

llllllllllllllllllllllll

llllllllllllllllllllllll

llllllllllllllllllllllll

llllllllllllllllllllllll


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Subject/issue identified Required action Implementation date 

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 


Lhorne on DSK5TPTVN1PROD with CFR
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Pt. 112, App. F 40 CFR Ch. I (7–1–15 Edition) 

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 Adhoc 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 


Lhorne on DSK5TPTVN1PROD with CFR
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Environmental Protection Agency Pt. 112, App. F 

1These numbers may be obtained from public library resources. 

2Explanations 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. 3For 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. 

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: lllllllll

Facility Name: lllllllllllllll

Facility Address (street address or route): l

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

Facility Phone No.: lllllllllllll

Latitude (Degrees: North): lllllllll

degrees, minutes, seconds llllllllll

Dun & Bradstreet Number: 1 llllllll

Largest Aboveground Oil Storage Tank Capacity (Gallons): lllllllllllll

Number of Aboveground Oil Storage Tanks: 

llllllllllllllllllllllll

Longitude (Degrees: West): 

llllllllllllllllllllllll

degrees, minutes, seconds llllllllll

North American Industrial Classification 

System (NAICS) Code: 1 llllllllll

Maximum Oil Storage Capacity (Gallons): l

Worst Case Oil Discharge Amount (Gallons): 

Facility Distance to Navigable Water. Mark 

the appropriate line. lllllllllll

0–1⁄4 mile ll 1⁄4–1⁄2 mile ll 1⁄2–1 mile ll >1 

mile ll 

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? 

Yes lllllllllllllllllllll

No llllllllllllllllllllll

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 lllllllllllllllllllll

No llllllllllllllllllllll

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

Yes lllllllllllllllllllll

No llllllllllllllllllllll

Does the facility have a total oil storage capacity greater than or equal to 1 million 

gallons and is the facility located at a distance 2 (as calculated using the appropriate 

formula in appendix C or a comparable formula) such that a discharge from the facility would shut down a public drinking 

water intake? 2 llllllllllllll

Yes lllllllllllllllllllll


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No llllllllllllllllllllll

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 lllllllllllllllllllll

No llllllllllllllllllllll

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: llllllllllllllllll

Name (Please type or print): llllllll

Title: llllllllllllllllllll

Date: llllllllllllllllllll

[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] 

APPENDIX G TO PART 112—TIER I 

QUALIFIED FACILITY SPCC PLAN


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Pt. 113 40 CFR Ch. I (7–1–15 Edition) 

[74 FR 58811, Nov. 13, 2009] 

PART 113—LIABILITY LIMITS FOR 

SMALL ONSHORE STORAGE FACILITIES 

Subpart A—Oil Storage Facilities 

Sec. 

113.1 Purpose. 

113.2 Applicability. 

113.3 Definitions. 

113.4 Size classes and associated liability 

limits for fixed onshore oil storage facilities, 1,000 barrels or less capacity. 

113.5 Exclusions. 

113.6 Effect on other laws. 

AUTHORITY: Sec. 311(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 

§ 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. 

§ 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 


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Environmental Protection Agency Pt. 116 

of the owner or operator and the facility will be limited to the amounts specified in §113.4. 

§ 113.3 Definitions. 

As used in this subpart, the following 

terms shall have the meanings indicated below: 

(a) Aboveground storage facility 

means a tank or other container, the 

bottom of which is on a plane not more 

than 6 inches below the 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. 

§ 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. 

Size class Capacity (barrels) 

Limit 

(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. 

Size class Capacity (barrels) 

Limit 

(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 

§ 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. 

§ 113.6 Effect on other laws. 

Nothing herein shall be construed to 

limit the liability of any facility under 

State or local law or under any Federal 

law other than section 311 of the Act, 

nor shall the liability of any facility 

for any charges or damages under 

State or local law reduce its liability 

to the Federal Government under section 311 of the Act, as limited by this 

subpart. 

PART 116—DESIGNATION OF 

HAZARDOUS SUBSTANCES 

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.). 


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§ 116.1 40 CFR Ch. I (7–1–15 Edition) 

EFFECTIVE DATE NOTE: At 80 FR 37110, June 

29, 2015, the authority citation to part 116 

was revised, effective Aug. 28, 2015. For the 

convenience of the user, the revised text is 

set forth as follows: 

AUTHORITY: 33 U.S.C. 1251 et seq. 

§ 116.1 Applicability. 

This regulation designates hazardous 

substances under section 311(b)(2)(A) of 

the Federal Water Pollution Control 

Act (the Act). The regulation applies to 

discharges of substances designated in 

Table 116.4. 

[43 FR 10474, Mar. 13, 1978] 

§ 116.2 Abbreviations. 

ppm=parts per million 

mg=milligram(s) 

kg=kilogram(s) 

mg/l=milligrams(s) per liter= (approx.) ppm 

mg/kg=milligram(s) per kilogram= (approx.) 

ppm 

[43 FR 10474, Mar. 13, 1978] 

§ 116.3 Definitions. 

As used in this part, all terms shall 

have the meaning defined in the Act 

and as given below: 

The Act means the Federal Water 

Pollution Control Act, as amended by 

the Federal Water Pollution Control 

Act Amendments of 1972 (Pub. L. 92– 

500), and as further amended by the 

Clean Water Act of 1977 (Pub. L. 95– 

217), 33 U.S.C. 1251 et seq.; and as further amended by the Clean Water Act 

Amendments of 1978 (Pub. L. 95–676); 

Animals means appropriately sensitive animals which carry out respiration by means of a lung structure permitting gaseous exchange between air 

and the circulatory system; 

Aquatic animals means appropriately 

sensitive wholly aquatic animals which 

carry out respiration by means of a gill 

structure permitting gaseous 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; 

(2) Tributaries of navigable waters of 

the United States, including adjacent 

wetlands; 

(3) Interstate waters, including wetlands; and 


Lhorne on DSK5TPTVN1PROD with CFR
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Environmental Protection Agency § 116.3, Nt. 

(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] 

EFFECTIVE DATE NOTE: At 80 FR 37110, June 

29, 2015, §116.3 was amended by revising the 

definition of ‘‘Navigable waters’’, effective 

Aug. 28, 2015. For the convenience of the 

user, the revised text is set forth as follows: 

§ 116.3 Definitions. 

* * * * * 

Navigable waters is defined in section 502(7) 

of the Act to mean ‘‘waters of the United 

States, including the territorial seas.’’ 

(1) For purposes of the Clean Water Act, 33 

U.S.C. 1251 et seq. and its implementing regulations, subject to the exclusions in paragraph (2) of this definition, the term ‘‘waters 

of the United States’’ means: 

(i) 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; 

(ii) All interstate waters, including interstate wetlands; 

(iii) The territorial seas; 


Lhorne on DSK5TPTVN1PROD with CFR
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§ 116.3, Nt. 40 CFR Ch. I (7–1–15 Edition) 

(iv) All impoundments of waters otherwise 

identified as waters of the United States 

under this section; 

(v) All tributaries, as defined in paragraph 

(3)(iii) of this definition, of waters identified 

in paragraphs (1)(i) through (iii) of this definition; 

(vi) All waters adjacent to a water identified in paragraphs (1)(i) through (v) of this 

definition, including wetlands, ponds, lakes, 

oxbows, impoundments, and similar waters; 

(vii) All waters in paragraphs (1)(vii)(A) 

through (E) of this definition where they are 

determined, on a case-specific basis, to have 

a significant nexus to a water identified in 

paragraphs (1)(i) through (iii) of this definition. The waters identified in each of paragraphs (1)(vii)(A) through (E) of this definition are similarly situated and shall be combined, for purposes of a significant nexus 

analysis, in the watershed that drains to the 

nearest water identified in paragraphs (1)(i) 

through (iii) of this definition. Waters identified in this paragraph shall not be combined with waters identified in paragraph 

(1)(vi) of this definition when performing a 

significant nexus analysis. If waters identified in this paragraph are also an adjacent 

water under paragraph (1)(vi), they are an 

adjacent water and no case-specific significant nexus analysis is required. 

(A) Prairie potholes. Prairie potholes are a 

complex of glacially formed wetlands, usually occurring in depressions that lack permanent natural outlets, located in the upper 

Midwest. 

(B) Carolina bays and Delmarva bays. Carolina bays and Delmarva bays are ponded, 

depressional wetlands that occur along the 

Atlantic coastal plain. 

(C) Pocosins. Pocosins are evergreen shrub 

and tree dominated wetlands found predominantly along the Central Atlantic coastal 

plain. 

(D) Western vernal pools. Western vernal 

pools are seasonal wetlands located in parts 

of California and associated with topographic depression, soils with poor drainage, 

mild, wet winters and hot, dry summers. 

(E) Texas coastal prairie wetlands. Texas 

coastal prairie wetlands are freshwater wetlands that occur as a mosaic of depressions, 

ridges, intermound flats, and mima mound 

wetlands located along the Texas Gulf Coast. 

(viii) All waters located within the 100-year 

floodplain of a water identified in paragraphs 

(1)(i) through (iii) of this definition and all 

waters located within 4,000 feet of the high 

tide line or ordinary high water mark of a 

water identified in paragraphs (1)(i) through 

(v) of this definition where they are determined on a case-specific basis to have a significant nexus to a water identified in paragraphs (1)(i) through (iii) of this definition. 

For waters determined to have a significant 

nexus, the entire water is a water of the 

United States if a portion is located within 

the 100-year floodplain of a water identified 

in paragraphs (1)(i) through (iii) of this definition or within 4,000 feet of the high tide 

line or ordinary high water mark. Waters 

identified in this paragraph shall not be combined with waters identified in paragraph 

(1)(vi) of this definition when performing a 

significant nexus analysis. If waters identified in this paragraph are also an adjacent 

water under paragraph (1)(vi), they are an 

adjacent water and no case-specific significant nexus analysis is required. 

(2) The following are not ‘‘waters of the 

United States’’ even where they otherwise 

meet the terms of paragraphs (1)(iv) through 

(viii) of this definition. 

(i) 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. 

(ii) The following ditches: 

(A) Ditches with ephemeral flow that are 

not a relocated tributary or excavated in a 

tributary. 

(B) Ditches with intermittent flow that are 

not a relocated tributary, excavated in a 

tributary, or drain wetlands. 

(C) Ditches that do not flow, either directly or through another water, into a 

water identified in paragraphs (1)(i) through 

(iii) of this definition. 

(iii) The following features: 

(A) Artificially irrigated areas that would 

revert to dry land should application of 

water to that area cease; 

(B) Artificial, constructed lakes and ponds 

created in dry land such as farm and stock 

watering ponds, irrigation ponds, settling basins, fields flooded for rice growing, log 

cleaning ponds, or cooling ponds; 

(C) Artificial reflecting pools or swimming 

pools created in dry land; 

(D) Small ornamental waters created in 

dry land; 

(E) Water-filled depressions created in dry 

land incidental to mining or construction activity, including pits excavated for obtaining 

fill, sand, or gravel that fill with water; 

(F) Erosional features, including gullies, 

rills, and other ephemeral features that do 

not meet the definition of tributary, nonwetland swales, and lawfully constructed 

grassed waterways; and 

(G) Puddles. 

(iv) Groundwater, including groundwater 

drained through subsurface drainage systems. 

(v) Stormwater control features constructed to convey, treat, or store 

stormwater that are created in dry land. 

(vi) Wastewater recycling structures constructed in dry land; detention and retention 

basins built for wastewater recycling; 

groundwater recharge basins; percolation 


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Environmental Protection Agency § 116.3, Nt. 

ponds built for wastewater recycling; and 

water distributary structures built for 

wastewater recycling. 

(3) In this definition, the following terms 

apply: 

(i) Adjacent. The term adjacent means bordering, contiguous, or neighboring a water 

identified in paragraphs (1)(i) through (v) of 

this definition, including waters separated 

by constructed dikes or barriers, natural 

river berms, beach dunes, and the like. For 

purposes of adjacency, an open water such as 

a pond or lake includes any wetlands within 

or abutting its ordinary high water mark. 

Adjacency is not limited to waters located 

laterally to a water identified in paragraphs 

(1)(i) through (v) of this definition. Adjacent 

waters also include all waters that connect 

segments of a water identified in paragraphs 

(1)(i) through (v) or are located at the head 

of a water identified in paragraphs (1)(i) 

through (v) of this definition and are bordering, contiguous, or neighboring such 

water. Waters being used for established normal farming, ranching, and silviculture activities (33 U.S.C. 1344(f)) are not adjacent. 

(ii) Neighboring. The term neighboring 

means: 

(A) All waters located within 100 feet of the 

ordinary high water mark of a water identified in paragraphs (1)(i) through (v) of this 

definition. The entire water is neighboring if 

a portion is located within 100 feet of the ordinary high water mark; 

(B) All waters located within the 100-year 

floodplain of a water identified in paragraphs 

(1)(i) through (v) of this definition and not 

more than 1,500 feet from the ordinary high 

water mark of such water. The entire water 

is neighboring if a portion is located within 

1,500 feet of the ordinary high water mark 

and within the 100-year floodplain; 

(C) All waters located within 1,500 feet of 

the high tide line of a water identified in 

paragraphs (1)(i) or (1)(iii) of this definition, 

and all waters within 1,500 feet of the ordinary high water mark of the Great Lakes. 

The entire water is neighboring if a portion 

is located within 1,500 feet of the high tide 

line or within 1,500 feet of the ordinary high 

water mark of the Great Lakes. 

(iii) Tributary and tributaries. The terms 

tributary and tributaries each mean a water 

that contributes flow, either directly or 

through another water (including an impoundment identified in paragraph (1)(iv) of 

this definition), to a water identified in paragraphs (1)(i) through (iii) of this definition 

that is characterized by the presence of the 

physical indicators of a bed and banks and 

an ordinary high water mark. These physical 

indicators demonstrate there is volume, frequency, and duration of flow sufficient to 

create a bed and banks and an ordinary high 

water mark, and thus to qualify as a tributary. A tributary can be a natural, man-altered, or man-made water and includes 

waters such as rivers, streams, canals, and 

ditches not excluded under paragraph (2) of 

this definition. A water that otherwise qualifies as a tributary under this definition does 

not lose its status as a tributary if, for any 

length, there are one or more constructed 

breaks (such as bridges, culverts, pipes, or 

dams), or one or more natural breaks (such 

as wetlands along the run of a stream, debris 

piles, boulder fields, or a stream that flows 

underground) so long as a bed and banks and 

an ordinary high water mark can be identified upstream of the break. A water that otherwise qualifies as a tributary under this definition does not lose its status as a tributary 

if it contributes flow through a water of the 

United States that does not meet the definition of tributary or through a non-jurisdictional water to a water identified in paragraphs (1)(i) through (iii) of this definition. 

(iv) Wetlands. The term 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. 

(v) Significant nexus. The term significant 

nexus means that a water, including wetlands, either alone or in combination with 

other similarly situated waters in the region, significantly affects the chemical, 

physical, or biological integrity of a water 

identified in paragraphs (1)(i) through (iii) of 

this definition. The term ‘‘in the region’’ 

means the watershed that drains to the nearest water identified in paragraphs (1)(i) 

through (iii) of this definition. For an effect 

to be significant, it must be more than speculative or insubstantial. Waters are similarly situated when they function alike and 

are sufficiently close to function together in 

affecting downstream waters. For purposes 

of determining whether or not a water has a 

significant nexus, the water’s effect on downstream (1)(i) through (iii) waters shall be assessed by evaluating the aquatic functions 

identified in paragraphs (3)(v)(A) through (I) 

of this definition. A water has a significant 

nexus when any single function or combination of functions performed by the water, 

alone or together with similarly situated 

waters in the region, contributes significantly to the chemical, physical, or biological integrity of the nearest water identified 

in paragraphs (1)(i) through (iii) of this definition. Functions relevant to the significant 

nexus evaluation are the following: 

(A) Sediment trapping, 

(B) Nutrient recycling, 

(C) Pollutant trapping, transformation, filtering, and transport, 

(D) Retention and attenuation of flood 

waters, 

(E) Runoff storage, 


Lhorne on DSK5TPTVN1PROD with CFR
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§ 116.4 40 CFR Ch. I (7–1–15 Edition) 

(F) Contribution of flow, 

(G) Export of organic matter, 

(H) Export of food resources, and 

(I) Provision of life cycle dependent aquatic habitat (such as foraging, feeding, nesting, 

breeding, spawning, or use as a nursery area) 

for species located in a water identified in 

paragraphs (1)(i) through (iii) of this section. 

(vi) Ordinary high water mark. The term ordinary high water mark means that line on 

the shore established by the fluctuations of 

water and indicated by physical characteristics such as a clear, natural line impressed 

on the bank, shelving, changes in the character of soil, destruction of terrestrial vegetation, the presence of litter and debris, or 

other appropriate means that consider the 

characteristics of the surrounding areas. 

(vii) High tide line. The term high tide line 

means the line of intersection of the land 

with the water’s surface at the maximum 

height reached by a rising tide. The high tide 

line may be determined, in the absence of actual data, by a line of oil or scum along 

shore objects, a more or less continuous deposit of fine shell or debris on the foreshore 

or berm, other physical markings or characteristics, vegetation lines, tidal gages, or 

other suitable means that delineate the general height reached by a rising tide. The line 

encompasses spring high tides and other high 

tides that occur with periodic frequency but 

does not include storm surges in which there 

is a departure from the normal or predicted 

reach of the tide due to the piling up of 

water against a coast by strong winds such 

as those accompanying a hurricane or other 

intense storm. 

§ 116.4 Designation of hazardous substances. 

The elements and compounds appearing in Tables 116.4 A and B are designated as hazardous substances in accordance with section 311(b)(2)(A) of 

the Act. This designation includes any 

isomers and hydrates, as well as any 

solutions and mixtures containing 

these substances. Synonyms and Chemical Abstract System (CAS) numbers 

have been added for convenience of the 

user only. In case of any disparity the 

common names shall be considered the 

designated substance. 

TABLE 116.4A—LIST OF HAZARDOUS SUBSTANCES

Common name CAS No. Synonyms Isomers CAS No. 

Acetaldehyde .................................. 75070 Ethanal, ethyl aldehyde, acetic aldehyde.

Acetic acid ....................................... 64197 Glacial acetic acid, vinegar acid.

Acetic anhydride ............................. 108247 Acetic oxide, acetyl oxide.

Acetone cyanohydrin ...................... 75865 2-methyllactonitrile, alphahydroxyisobutyronitrile.

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 


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Environmental Protection Agency § 116.4 

TABLE 116.4A—LIST OF HAZARDOUS SUBSTANCES—Continued 

Common name CAS No. Synonyms Isomers CAS No. 

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.

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 acid ......................... iso- ............... 79312 

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 


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§ 116.4 40 CFR Ch. I (7–1–15 Edition) 

TABLE 116.4A—LIST OF HAZARDOUS SUBSTANCES—Continued 

Common name CAS No. Synonyms Isomers CAS No. 

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 

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 

(mixture).

8003198 D-D mixture Vidden D.

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.


Lhorne on DSK5TPTVN1PROD with CFR
147 

Environmental Protection Agency § 116.4 

TABLE 116.4A—LIST OF HAZARDOUS SUBSTANCES—Continued 

Common name CAS No. Synonyms Isomers CAS No. 

Ethion .............................................. 563122 Nialate, ethyl methylene, phosphorodithioate.

Ethylbenzene .................................. 100414 Phenylethane.

Ethylenediamine .............................. 107153 1,2-diaminoethane.

Ethylenediamine-tetraacetic acid 

(EDTA).

60004 Edetic acid, Havidote, (ethylenedinitrilo)- 

tetraacetic acid.

Ethylene dibromide ......................... 106934 1,2-dibromoethane acetylene dibromide symdibromoethylene.

Ethylene dichloride .......................... 107062 1,2-dichloroethane sym-bichloroethane.

Ferric ammonium citrate ................. 1185575 Ammonium ferric citrate.

Ferric ammonium oxalate ............... 2944674 Ammonium ferric oxalate.

55488874 

Ferric chloride ................................. 7705080 Flores martis, iron trichloride.

Ferric fluoride .................................. 7783508 

Ferric nitrate .................................... 10421484 Iron nitrate.

Ferric sulfate ................................... 10028225 Ferric persulfate, ferric sesquisulfate, ferric 

tersulfate.

Ferrous ammonium sulfate ............. 10045893 Mohr’s salt, iron ammonium sulfate.

Ferrous chloride .............................. 7758943 Iron chloride, iron dichloride, iron protochloride.

Ferrous sulfate ................................ 7720787 Green vitriol.

7782630 Iron vitriol, iron sulfate, iron protosulfate.

Formaldehyde ................................. 50000 Methyl aldehyde, methanal, formalin.

Formic acid ..................................... 64186 Methanoic acid.

Fumaric acid ................................... 110178 Trans-butenedioic acid, trans-1,2- 

ethylenedicarboxylic acid, boletic acid, 

allomaleic acid.

Furfural ............................................ 98011 2-furaldehyde, pyromucic aldehyde.

Guthion ............................................ 86500 Gusathion, azinphos-methyl.

Heptachlor ....................................... 76448 Velsicol-104, Drinox, Heptagran.

Hexachlorocyclopentadiene ............ 77474 Perchlorocyclopentadiene.

Hydrochloric acid ............................ 7647010 Hydrogen chloride, muriatic acid.

Hydrofluoric acid ............................. 7664393 Fluohydric acid.

Hydrogen cyanide ........................... 74908 Hydrocyanic acid.

Hydrogen sulfide ............................. 7783064 Hydrosulfuric acid sulfur hydride.

Isoprene .......................................... 78795 2-methyl-1,3-butadiene.

Isopropanolamine 

dodecylbenzenesulfonate.

42504461 

Kepone ............................................ 143500 Chlordecone 1,1a,3,3a,4,5,5,5a,5b,6- 

decachlorooctahydro-1,3,4-metheno-2Hcyclobuta(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.


Lhorne on DSK5TPTVN1PROD with CFR
148 

§ 116.4 40 CFR Ch. I (7–1–15 Edition) 

TABLE 116.4A—LIST OF HAZARDOUS SUBSTANCES—Continued 

Common name CAS No. Synonyms Isomers CAS No. 

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.

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, metadihydroxybenzene.

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.


Lhorne on DSK5TPTVN1PROD with CFR
149 

Environmental Protection Agency § 116.4 

TABLE 116.4A—LIST OF HAZARDOUS SUBSTANCES—Continued 

Common name CAS No. Synonyms Isomers CAS No. 

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 ............ 7601549 

10101890 

10361894 

Sodium selenite .............................. 10102188 

7782823 

Strontium chromate ......................... 7789062 

Strychnine ....................................... 57249 

Styrene ............................................ 100425 Vinylbenzene, phenylethylene, styrol, 

styrolene, cinnamene, cinnamol.

Sulfuric acid .................................... 7664939 Oil of vitriol, oleum.

Sulfur monochloride ........................ 12771083 Sulfur chloride.

2,4,5-T acid ..................................... 93765 2,4,5-trichlorophenoxyacetic acid.

2,4,5-T amines ................................ 6369966 Acetic acid (2,4,5-trichlorophenoxy)-compound 

with N,N-dimethylmethanamine (1:1).

6369977 Acetic acid (2,4,5-trichlorophenoxy)-compound 

with N-methylmethanamine (1:1).

1319728 Acetic acid (2,4,5-trichlorophenoxy)-compound 

with 1-amino-2-propanol (1:1).

3813147 Acetic acid (2,4,5-trichlorophenoxy)-compound 

with 2,2’2’’-nitrilotris [ethanol] (1:1).

2,4,5-T esters .................................. 2545597 2,4,5-trichlorophenoxyacetic esters.

93798 

61792072 

1928478 

25168154 

2,4,5–T salts ................................... 13560991 Acetic acid (2,4,5–trichlorophenoxy)-sodium 

salt.

TDE ................................................. 72548 DDD.

2,4,5–TP acid .................................. 93721 Propanoic acid 2–(2,4,5–trichlorophenoxy).

2,4,5–TP esters ............................... 32534955 Propanoic acid, 2–(2,4,5–trichlorophenoxy)-, 

isooctyl ester.

Tetraethyl lead ................................ 78002 Lead tetraethyl, TEL.

Tetraethyl pyrophosphate ............... 107493 TEPP.

Thallium sulfate ............................... 10031591 

7446186 

Toluene ........................................... 108883 Toluol, methylbenzene, phenylmethane, 

Methacide.

Toxaphene ...................................... 8001352 Camphechlor.

Trichlorfon ....................................... 52686 Dipterex .............................................................

Dylox.

Trichlorethylene ............................... 79016 Ethylene trichloride.

Trichlorophenol ............................... 25167822 Collunosol, Dowicide 2 or 2S, Omal, 

Phenachlor.

(2,3,4-) ..........

(2,3,5-) ..........

(2,3,6-) ..........

(2,4,5-) ..........

(2,4,6-) ..........

(3,4,5-) ..........

15950660 

933788 

933755 

95954 

88062 

609198 

Triethanolamine 

dodecylbenzenesulfonate.

27323417 

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.


Lhorne on DSK5TPTVN1PROD with CFR
150 

§ 116.4 40 CFR Ch. I (7–1–15 Edition) 

TABLE 116.4A—LIST OF HAZARDOUS SUBSTANCES—Continued 

Common name CAS No. Synonyms Isomers CAS No. 

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 

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 

TABLE 116.4B—LIST OF HAZARDOUS

SUBSTANCES BY CAS NUMBER—Continued 

CAS No. Common name 

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 


Lhorne on DSK5TPTVN1PROD with CFR
151 

Environmental Protection Agency § 116.4 

TABLE 116.4B—LIST OF HAZARDOUS

SUBSTANCES BY CAS NUMBER—Continued 

CAS No. Common name 

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 

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 

TABLE 116.4B—LIST OF HAZARDOUS

SUBSTANCES BY CAS NUMBER—Continued 

CAS No. Common name 

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 

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 


Lhorne on DSK5TPTVN1PROD with CFR
152 

Pt. 117 40 CFR Ch. I (7–1–15 Edition) 

TABLE 116.4B—LIST OF HAZARDOUS

SUBSTANCES BY CAS NUMBER—Continued 

CAS No. Common name 

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 

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 

10140655 ............. Sodium phosphate, dibasic 

10192300 ............. Ammonium bisulfite 

10196040 ............. Ammonium sulfite 

10361894 ............. Sodium phosphate, tribasic 

10380297 ............. Cupric sulfate, ammoniated 

10415755 ............. Mercurous nitrate 

10421484 ............. Ferric nitrate 

10588019 ............. Sodium bichromate 

11115745 ............. Chromic acid 

12002038 ............. Cupric acetoarsenite 

12054487 ............. Nickel hydroxide 

12125018 ............. Ammonium fluoride 

12125029 ............. Ammonium chloride 

12135761 ............. Ammonium sulfide 

12771083 ............. Sulfur chloride 

13597994 ............. Beryllium nitrate 

13746899 ............. Zirconium nitrate 

13765190 ............. Calcium chromate 

13814965 ............. Lead fluoborate 

13826830 ............. Ammonium fluoborate 

13952846 ............. sec-Butylamine 

14017415 ............. Cobaltous sulfamate 

14216752 ............. Nickel nitrate 

14258492 ............. Ammonium oxalate 

TABLE 116.4B—LIST OF HAZARDOUS

SUBSTANCES BY CAS NUMBER—Continued 

CAS No. Common name 

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; 76 FR 

55584, Sept. 8, 2011] 

PART 117—DETERMINATION OF REPORTABLE QUANTITIES FOR HAZARDOUS SUBSTANCES 

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. 


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Environmental Protection Agency § 117.1 

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. 

EFFECTIVE DATE NOTE: At 80 FR 37112, June 

29, 2015, the authority citation to part 117 

was revised, effective Aug. 28, 2015. For the 

convenience of the user, revised text is set 

forth as follows: 

AUTHORITY: 33 U.S.C. 1251 et seq. and Executive Order 11735, superseded by Executive 

Order 12777, 56 FR 54757. 

SOURCE: 44 FR 50776, Aug. 29, 1979, unless 

otherwise noted. 

Subpart A—General Provisions 

§ 117.1 Definitions. 

As used in this part, all terms shall 

have the meanings stated in 40 CFR 

part 116. 

(a) Reportable quantities means quantities that may be harmful as set forth 

in §117.3, the discharge of which is a 

violation of section 311(b)(3) and requires notice as set forth in §117.21. 

(b) Administrator means the Administrator of the Environmental Protection 

Agency (‘‘EPA’’). 

(c) Mobile source means any vehicle, 

rolling stock, or other means of transportation which 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 §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. 

(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 


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§ 117.1, Nt. 40 CFR Ch. I (7–1–15 Edition) 

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] 

EFFECTIVE DATE NOTE: At 80 FR 37112, June 

29, 2015, §117.1 was amended by revising paragraph (i), effective Aug. 28, 2015. For the convenience of the user, the revised text is set 

forth as follows: 

§ 117.1 Definitions. 

* * * * * 

(i) Navigable waters is defined in section 

502(7) of the Act to mean ‘‘waters of the 

United States, including the territorial 

seas.’’ 

(1) For purposes of the Clean Water Act, 33 

U.S.C. 1251 et seq. and its implementing regulations, subject to the exclusions in paragraph (i)(2) of this section, the term ‘‘waters 

of the United States’’ means: 

(i) 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; 

(ii) All interstate waters, including interstate wetlands; 

(iii) The territorial seas; 

(iv) All impoundments of waters otherwise 

identified as waters of the United States 

under this section; 

(v) All tributaries, as defined in paragraph 

(i)(3)(iii) of this section, of waters identified 

in paragraphs (i)(1)(i) through (iii) of this 

section; 

(vi) All waters adjacent to a water identified in paragraphs (i)(1)(i) through (v) of this 

section, including wetlands, ponds, lakes, 

oxbows, impoundments, and similar waters; 

(vii) All waters in paragraphs (i)(1)(vii)(A) 

through (E) of this section where they are 

determined, on a case-specific basis, to have 

a significant nexus to a water identified in 

paragraphs (i)(1)(i) through (iii) of this section. The waters identified in each of paragraphs (i)(1)(vii)(A) through (E) of this section are similarly situated and shall be combined, for purposes of a significant nexus 

analysis, in the watershed that drains to the 

nearest water identified in paragraphs 

(i)(1)(i) through (iii) of this section. Waters 

identified in this paragraph shall not be combined with waters identified in paragraph 

(i)(1)(vi) of this section when performing a 

significant nexus analysis. If waters identified in this paragraph are also an adjacent 

water under paragraph (i)(1)(vi), they are an 

adjacent water and no case-specific significant nexus analysis is required. 

(A) Prairie potholes. Prairie potholes are a 

complex of glacially formed wetlands, usually occurring in depressions that lack permanent natural outlets, located in the upper 

Midwest. 

(B) Carolina bays and Delmarva bays. Carolina bays and Delmarva bays are ponded, 

depressional wetlands that occur along the 

Atlantic coastal plain. 

(C) Pocosins. Pocosins are evergreen shrub 

and tree dominated wetlands found predominantly along the Central Atlantic coastal 

plain. 

(D) Western vernal pools. Western vernal 

pools are seasonal wetlands located in parts 

of California and associated with topographic depression, soils with poor drainage, 

mild, wet winters and hot, dry summers. 

(E) Texas coastal prairie wetlands. Texas 

coastal prairie wetlands are freshwater wetlands that occur as a mosaic of depressions, 

ridges, intermound flats, and mima mound 

wetlands located along the Texas Gulf Coast. 

(viii) All waters located within the 100-year 

floodplain of a water identified in (i)(1)(i) 

through (iii) of this section and all waters located within 4,000 feet of the high tide line or 

ordinary high water mark of a water identified in paragraphs (i)(1)(i) through (v) of this 

section where they are determined on a casespecific basis to have a significant nexus to 


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Environmental Protection Agency § 117.1, Nt. 

a water identified in paragraphs (i)(1)(i) 

through (iii) of this section. For waters determined to have a significant nexus, the entire water is a water of the United States if 

a portion is located within the 100-year 

floodplain of a water identified in paragraphs 

(i)(1)(i) through (iii) of this section or within 

4,000 feet of the high tide line or ordinary 

high water mark. Waters identified in this 

paragraph shall not be combined with waters 

identified in paragraph (i)(1)(vi) of this section when performing a significant nexus 

analysis. If waters identified in this paragraph are also an adjacent water under paragraph (i)(1)(vi), they are an adjacent water 

and no case-specific significant nexus analysis is required. 

(2) The following are not ‘‘waters of the 

United States’’ even where they otherwise 

meet the terms of paragraphs (i)(1)(iv) 

through (viii) of this section. 

(i) Waste treatment systems, (other than 

cooling ponds meeting the criteria of this 

paragraph) are not waters of the United 

States. 

(ii) 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. 

(iii) The following ditches: 

(A) Ditches with ephemeral flow that are 

not a relocated tributary or excavated in a 

tributary. 

(B) Ditches with intermittent flow that are 

not a relocated tributary, excavated in a 

tributary, or drain wetlands. 

(C) Ditches that do not flow, either directly or through another water, into a 

water identified in paragraphs (i)(1)(i) 

through (iii) of this section. 

(iv) The following features: 

(A) Artificially irrigated areas that would 

revert to dry land should application of 

water to that area cease; 

(B) Artificial, constructed lakes and ponds 

created in dry land such as farm and stock 

watering ponds, irrigation ponds, settling basins, fields flooded for rice growing, log 

cleaning ponds, or cooling ponds; 

(C) Artificial reflecting pools or swimming 

pools created in dry land; 

(D) Small ornamental waters created in 

dry land; 

(E) Water-filled depressions created in dry 

land incidental to mining or construction activity, including pits excavated for obtaining 

fill, sand, or gravel that fill with water; 

(F) Erosional features, including gullies, 

rills, and other ephemeral features that do 

not meet the definition of tributary, nonwetland swales, and lawfully constructed 

grassed waterways; and 

(G) Puddles. 

(v) Groundwater, including groundwater 

drained through subsurface drainage systems. 

(vi) Stormwater control features constructed to convey, treat, or store 

stormwater that are created in dry land. 

(vii) Wastewater recycling structures constructed in dry land; detention and retention 

basins built for wastewater recycling; 

groundwater recharge basins; percolation 

ponds built for wastewater recycling; and 

water distributary structures built for 

wastewater recycling. 

(3) In this paragraph, the following terms 

apply: 

(i) Adjacent. The term adjacent means bordering, contiguous, or neighboring a water 

identified in paragraphs (i)(1)(i) through (v) 

of this section, including waters separated 

by constructed dikes or barriers, natural 

river berms, beach dunes, and the like. For 

purposes of adjacency, an open water such as 

a pond or lake includes any wetlands within 

or abutting its ordinary high water mark. 

Adjacency is not limited to waters located 

laterally to a water identified in paragraphs 

(i)(1)(i) through (v) of this section. Adjacent 

waters also include all waters that connect 

segments of a water identified in paragraphs 

(i)(1)(i) through (v) or are located at the head 

of a water identified in paragraphs (i)(1)(i) 

through (v) of this section and are bordering, 

contiguous, or neighboring such water. 

Waters being used for established normal 

farming, ranching, and silviculture activities 

(33 U.S.C. 1344(f)) are not adjacent. 

(ii) Neighboring. The term neighboring 

means: 

(A) All waters located within 100 feet of the 

ordinary high water mark of a water identified in paragraphs (i)(1)(i) through (v) of this 

section. The entire water is neighboring if a 

portion is located within 100 feet of the ordinary high water mark; 

(B) All waters located within the 100-year 

floodplain of a water identified in paragraphs 

(i)(1)(i) through (v) of this section and not 

more than 1,500 feet from the ordinary high 

water mark of such water. The entire water 

is neighboring if a portion is located within 

1,500 feet of the ordinary high water mark 

and within the 100-year floodplain; 

(C) All waters located within 1,500 feet of 

the high tide line of a water identified in 

paragraphs (i)(1)(i) or (iii) of this section, 

and all waters within 1,500 feet of the ordinary high water mark of the Great Lakes. 

The entire water is neighboring if a portion 

is located within 1,500 feet of the high tide 

line or within 1,500 feet of the ordinary high 

water mark of the Great Lakes. 

(iii) Tributary and tributaries. The terms 

tributary and tributaries each mean a water 

that contributes flow, either directly or 

through another water (including an impoundment identified in paragraph (i)(1)(iv) 


Lhorne on DSK5TPTVN1PROD with CFR
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§ 117.2 40 CFR Ch. I (7–1–15 Edition) 

of this section), to a water identified in paragraphs (i)(1)(i) through (iii) of this section 

that is characterized by the presence of the 

physical indicators of a bed and banks and 

an ordinary high water mark. These physical 

indicators demonstrate there is volume, frequency, and duration of flow sufficient to 

create a bed and banks and an ordinary high 

water mark, and thus to qualify as a tributary. A tributary can be a natural, man-altered, or man-made water and includes 

waters such as rivers, streams, canals, and 

ditches not excluded under paragraph (i)(2) 

of this section. A water that otherwise qualifies as a tributary under this definition does 

not lose its status as a tributary if, for any 

length, there are one or more constructed 

breaks (such as bridges, culverts, pipes, or 

dams), or one or more natural breaks (such 

as wetlands along the run of a stream, debris 

piles, boulder fields, or a stream that flows 

underground) so long as a bed and banks and 

an ordinary high water mark can be identified upstream of the break. A water that otherwise qualifies as a tributary under this definition does not lose its status as a tributary 

if it contributes flow through a water of the 

United States that does not meet the definition of tributary or through a non-jurisdictional water to a water identified in paragraphs (i)(1)(i) through (iii) of this section. 

(iv) Wetlands. The term 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. 

(v) Significant nexus. The term significant 

nexus means that a water, including wetlands, either alone or in combination with 

other similarly situated waters in the region, significantly affects the chemical, 

physical, or biological integrity of a water 

identified in paragraphs (i)(1)(i) through (iii) 

of this section. The term ‘‘in the region’’ 

means the watershed that drains to the nearest water identified in paragraphs (i)(1)(i) 

through (iii) of this section. For an effect to 

be significant, it must be more than speculative or insubstantial. Waters are similarly 

situated when they function alike and are 

sufficiently close to function together in affecting downstream waters. For purposes of 

determining whether or not a water has a 

significant nexus, the water’s effect on downstream (i)(1)(i) through (iii) waters shall be 

assessed by evaluating the aquatic functions 

identified in paragraphs (i)(3)(v)(A) through 

(I) of this section. A water has a significant 

nexus when any single function or combination of functions performed by the water, 

alone or together with similarly situated 

waters in the region, contributes significantly to the chemical, physical, or biological integrity of the nearest water identified 

in paragraphs (i)(1)(i) through (iii) of this 

section. Functions relevant to the significant nexus evaluation are the following: 

(A) Sediment trapping, 

(B) Nutrient recycling, 

(C) Pollutant trapping, transformation, filtering, and transport, 

(D) Retention and attenuation of flood 

waters, 

(E) Runoff storage, 

(F) Contribution of flow, 

(G) Export of organic matter, 

(H) Export of food resources, and 

(I) Provision of life cycle dependent aquatic habitat (such as foraging, feeding, nesting, 

breeding, spawning, or use as a nursery area) 

for species located in a water identified in 

paragraphs (i)(1)(i) through (iii) of this section. 

(vi) Ordinary high water mark. The term ordinary high water mark means that line on 

the shore established by the fluctuations of 

water and indicated by physical characteristics such as a clear, natural line impressed 

on the bank, shelving, changes in the character of soil, destruction of terrestrial vegetation, the presence of litter and debris, or 

other appropriate means that consider the 

characteristics of the surrounding areas. 

(vii) High tide line. The term high tide line 

means the line of intersection of the land 

with the water’s surface at the maximum 

height reached by a rising tide. The high tide 

line may be determined, in the absence of actual data, by a line of oil or scum along 

shore objects, a more or less continuous deposit of fine shell or debris on the foreshore 

or berm, other physical markings or characteristics, vegetation lines, tidal gages, or 

other suitable means that delineate the general height reached by a rising tide. The line 

encompasses spring high tides and other high 

tides that occur with periodic frequency but 

does not include storm surges in which there 

is a departure from the normal or predicted 

reach of the tide due to the piling up of 

water against a coast by strong winds such 

as those accompanying a hurricane or other 

intense storm. 

§ 117.2 Abbreviations. 

NPDES equals National Pollutant 

Discharge Elimination System. RQ 

equals reportable quantity. 

§ 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. 


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Environmental Protection Agency § 117.3 

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

Material Category RQ in pounds (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) 


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§ 117.3 40 CFR Ch. I (7–1–15 Edition) 

TABLE 117.3—REPORTABLE QUANTITIES OF HAZARDOUS SUBSTANCES DESIGNATED PURSUANT TO

SECTION 311 OF THE CLEAN WATER ACT—Continued 

Material Category RQ in pounds (kilograms) 

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 (mixture) ............................................................. B .................... 100 (45.4) 

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 (EDTA) ................................................................. D .................... 5,000 (2,270) 


Lhorne on DSK5TPTVN1PROD with CFR
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Environmental Protection Agency § 117.3 

TABLE 117.3—REPORTABLE QUANTITIES OF HAZARDOUS SUBSTANCES DESIGNATED PURSUANT TO

SECTION 311 OF THE CLEAN WATER ACT—Continued 

Material Category RQ in pounds (kilograms) 

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 dodecylbenzenesulfonate ............................................................ C .................... 1,000 (454) 

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) 


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§ 117.3 40 CFR Ch. I (7–1–15 Edition) 

TABLE 117.3—REPORTABLE QUANTITIES OF HAZARDOUS SUBSTANCES DESIGNATED PURSUANT TO

SECTION 311 OF THE CLEAN WATER ACT—Continued 

Material Category RQ in pounds (kilograms) 

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 dodecylbenzenesulfonate ............................................................... C .................... 1,000 (454) 

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) 


Lhorne on DSK5TPTVN1PROD with CFR
161 

Environmental Protection Agency § 117.11 

TABLE 117.3—REPORTABLE QUANTITIES OF HAZARDOUS SUBSTANCES DESIGNATED PURSUANT TO

SECTION 311 OF THE CLEAN WATER ACT—Continued 

Material Category RQ in pounds (kilograms) 

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 

§ 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 §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 §117.12 of this regulation; 

(i) To a POTW and are specifically 

excluded or reserved in §117.13; or 

(j) In compliance with a permit 

issued under section 404(a) of the Clean 

Water Act or when the discharges are 


Lhorne on DSK5TPTVN1PROD with CFR
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§ 117.12 40 CFR Ch. I (7–1–15 Edition) 

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

1344(a), (f), (r)). 

§ 117.12 Applicability to discharges 

from facilities with NPDES permits. 

(a) This regulation does not apply to: 

(1) Discharges in compliance with a 

permit under section 402 of this Act; 

(2) Discharges resulting from circumstances identified, reviewed and 

made a part of the public record with 

respect to a permit issued or modified 

under section 402 of this Act, and subject to a condition in such permit; 

(3) Continuous or anticipated intermittent 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 

§117.12(c)(1)(i) and §117.12(c)(1)(ii) be 

treated pursuant to §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] 

§ 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 


Lhorne on DSK5TPTVN1PROD with CFR
163 

Environmental Protection Agency Pt. 121 

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. 

§ 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 

§ 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. 

§ 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 

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, 


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§ 121.1 40 CFR Ch. I (7–1–15 Edition) 

Oct. 11, 1972, and further redesignated at 44 

FR 32899, June 7, 1979. 

Subpart A—General 

§ 121.1 Definitions. 

As used in this part, the following 

terms shall have the meanings indicated below: 

(a) License or permit means any license or 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. 

§ 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. 

§ 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 

§ 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 


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Environmental Protection Agency § 121.16 

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 §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. 

§ 121.12 Supplemental information. 

If the documents forwarded to the 

Regional Administrator by the licensing or permitting agency pursuant to 

§121.11 do not contain sufficient information for the Regional Administrator 

to make the determination provided 

for in §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. 

§ 121.13 Review by Regional Administrator and notification. 

The Regional Administrator shall review the application, certification, and 

any supplemental information provided 

in accordance with §§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 §121.11, so 

notify each affected State, the licensing or permitting agency, and the applicant. 

§ 121.14 Forwarding to affected State. 

The Regional Administrator shall 

forward to each affected State a copy 

of the material provided in accordance 

with §121.11. 

§ 121.15 Hearings on objection of 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. 

§ 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 §§121.13, 121.14, and 121.15. 

The notices required by §121.13 shall be 

provided not later than 30 days after 

the date of receipt by the Regional Administrator of either notification referred to herein. 


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§ 121.21 40 CFR Ch. I (7–1–15 Edition) 

Subpart C—Certification by the 

Administrator 

§ 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. 

§ 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. 

§ 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. 

§ 121.24 Certification. 

If, after considering the complete description, the record of a hearing, if 

any, held pursuant to §121.23, and such 

other information and data as the Regional Administrator deems relevant, 

the Regional Administrator determines 

that there is reasonable assurance that 

the proposed activity will not result in 

a violation of applicable water quality 

standards, he shall so certify. If the 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. 


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Environmental Protection Agency § 121.30 

§ 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. 

§ 121.26 Inspection of facility or activity before operation. 

Where any facility or activity has received certification pursuant to §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. 

§ 121.27 Notification to licensing or 

permitting agency. 

If the Regional Administrator, after 

an inspection pursuant to §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. 

§ 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 

§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 

§ 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 


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Pt. 122 40 CFR Ch. I (7–1–15 Edition) 

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 

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 §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 §123.25). 

122.22 Signatories to permit applications 

and reports (applicable to State programs, see §123.25). 

122.23 Concentrated animal feeding operations (applicable to State NPDES programs, see §123.25). 

122.24 Concentrated aquatic animal production facilities (applicable to State 

NPDES programs, see §123.25). 

122.25 Aquaculture projects (applicable to 

State NPDES programs, see §123.25). 

122.26 Storm water discharges (applicable to 

State NPDES programs, see §123.25). 

122.27 Silvicultural activities (applicable to 

State NPDES programs, see §123.25). 

122.28 General permits (applicable to State 

NPDES programs, see §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 §§122.33 through 122.35? 

122.37 Will the small MS4 storm water program regulations at §§122.32 through 

122.36 and §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 

§123.25). 

122.42 Additional conditions applicable to 

specified categories of NPDES permits 

(applicable to State NPDES programs, 

see §123.25). 

122.43 Establishing permit conditions (applicable to State programs, see §123.25). 

122.44 Establishing limitations, standards 

and other permit conditions (applicable 

to State NPDES programs, see §123.25). 

122.45 Calculating NPDES permit conditions (applicable to State NPDES programs, see §123.25). 

122.46 Duration of permits (applicable to 

State programs, see §123.25). 

122.47 Schedules of compliance. 

122.48 Requirements for recording and reporting of monitoring results (applicable 

to State programs, see §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 §123.25). 

Subpart D—Transfer, Modification, Revocation and Reissuance, and Termination 

of Permits 

122.61 Transfer of permits (applicable to 

State programs, see §123.25). 

122.62 Modification or revocation and 

reissuance of permits (applicable to 

State programs, see §123.25). 

122.63 Minor modifications of permits. 

122.64 Termination of permits (applicable to 

State programs, see §123.25). 

APPENDIX A TO PART 122—NPDES PRIMARY

INDUSTRY CATEGORIES

APPENDIX B TO PART 122 [RESERVED] 


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Environmental Protection Agency § 122.1 

APPENDIX C TO PART 122—CRITERIA FOR DETERMINING A CONCENTRATED AQUATIC ANIMAL PRODUCTION FACILITY (§122.24) 

APPENDIX D TO PART 122—NPDES PERMIT

APPLICATION TESTING REQUIREMENTS

(§122.21) 

APPENDIX E TO PART 122—RAINFALL ZONES OF

THE UNITED STATES

APPENDIX F TO PART 122—INCORPORATED

PLACES WITH POPULATIONS GREATER

THAN 250,000 ACCORDING TO 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 (§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 

§ 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 §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 §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 §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 §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 


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§ 122.2 40 CFR Ch. I (7–1–15 Edition) 

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 

§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 §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 §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] 

§ 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 

§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 

§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 


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Environmental Protection Agency § 122.2 

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 §122.41(m). 

Concentrated animal feeding operation 

is defined at §122.23. 

Concentrated aquatic animal feeding 

operation is defined at §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 §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. 


Lhorne on DSK5TPTVN1PROD with CFR
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§ 122.2 40 CFR Ch. I (7–1–15 Edition) 

DMR means ‘‘Discharge Monitoring 

Report.’’ 

Draft permit means a document prepared under §124.6 indicating the Director’s tentative decision to issue or 

deny, modify, revoke and reissue, 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 §124.5, are types of ‘‘draft 

permits.’’ A denial of a request for 

modification, revocation and 

reissuance, or termination, as discussed in §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 §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 §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, 


Lhorne on DSK5TPTVN1PROD with CFR
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Environmental Protection Agency § 122.2 

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’’ 

(§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 §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 


Lhorne on DSK5TPTVN1PROD with CFR
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§ 122.2 40 CFR Ch. I (7–1–15 Edition) 

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 §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, semisolid, 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 

§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 

§122.1(b)(2). 


Lhorne on DSK5TPTVN1PROD with CFR
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Environmental Protection Agency § 122.2 

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 §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 

§122.26(b)(13). 

Storm water discharge associated with 

industrial activity is defined at 

§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 §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 


Lhorne on DSK5TPTVN1PROD with CFR
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§ 122.2, Nt. 40 CFR Ch. I (7–1–15 Edition) 

1EDITORIAL NOTE: The words ‘‘This revision’’ refer to the document published at 48 

FR 14153, Apr. 1, 1983. 

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 §122.2, the last sentence, beginning ‘‘This exclusion applies 

. . .’’ in the definition of ‘‘Waters of the 

United States.’’ This revision continues that 

suspension. 1

(Clean Water Act (33 U.S.C. 1251 et seq.), Safe 

Drinking Water Act (42 U.S.C. 300f et seq.), 

Clean Air Act (42 U.S.C. 7401 et seq.), Resource Conservation and 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 

45038, Aug. 25, 1993; 58 FR 67980, Dec. 22, 1993; 

64 FR 42462, Aug. 4, 1999; 65 FR 30905, May 15, 

2000] 

EFFECTIVE DATE NOTE: At 80 FR 37114, June 

29, 2015, §122.2 was amended by lifting the 

suspension of the last sentence of the definition of ‘‘Waters of the United States’’ published July 21, 1980 (45 FR 48620), removing 

the definition of ‘‘wetlands’’ and revising the 

definition of ‘‘Waters of the United States’’ 

and suspending the last sentence of the definition of ‘‘Waters of the United States’’ published July 21, 1980 (45 FR 48620), effective 

Aug. 28, 2015. For the convenience of the 

user, the revised text is set forth as follows: 

§ 122.2 Definitions. 

* * * * * 

Waters of the United States or waters of the 

U.S. means: 

(1) For purposes of the Clean Water Act, 33 

U.S.C. 1251 et seq. and its implementing regulations, subject to the exclusions in paragraph (2) of this definition, the term ‘‘waters 

of the United States’’ means: 

(i) 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; 

(ii) All interstate waters, including interstate wetlands; 

(iii) The territorial seas; 

(iv) All impoundments of waters otherwise 

identified as waters of the United States 

under this section; 

(v) All tributaries, as defined in paragraph 

(3)(iii) of this section, of waters identified in 

paragraphs (1)(i) through (iii) of this section; 

(vi) All waters adjacent to a water identified in paragraphs (1)(i) through (v) of this 

definition, including wetlands, ponds, lakes, 

oxbows, impoundments, and similar waters; 

(vii) All waters in paragraphs (1)(vii)(A) 

through (E) of this definition where they are 


Lhorne on DSK5TPTVN1PROD with CFR
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Environmental Protection Agency § 122.2, Nt. 

determined, on a case-specific basis, to have 

a significant nexus to a water identified in 

paragraphs (1)(i) through (iii) of this definition. The waters identified in each of paragraphs (1)(vii)(A) through (E) of this definition are similarly situated and shall be combined, for purposes of a significant nexus 

analysis, in the watershed that drains to the 

nearest water identified in paragraphs (1)(i) 

through (iii) of this definition. Waters identified in this paragraph shall not be combined with waters identified in paragraph 

(1)(vi) of this definition when performing a 

significant nexus analysis. If waters identified in this paragraph are also an adjacent 

water under paragraph (1)(vi), they are an 

adjacent water and no case-specific significant nexus analysis is required. 

(A) Prairie potholes. Prairie potholes are a 

complex of glacially formed wetlands, usually occurring in depressions that lack permanent natural outlets, located in the upper 

Midwest. 

(B) Carolina bays and Delmarva bays. Carolina bays and Delmarva bays are ponded, 

depressional wetlands that occur along the 

Atlantic coastal plain. 

(C) Pocosins. Pocosins are evergreen shrub 

and tree dominated wetlands found predominantly along the Central Atlantic coastal 

plain. 

(D) Western vernal pools. Western vernal 

pools are seasonal wetlands located in parts 

of California and associated with topographic depression, soils with poor drainage, 

mild, wet winters and hot, dry summers. 

(E) Texas coastal prairie wetlands. Texas 

coastal prairie wetlands are freshwater wetlands that occur as a mosaic of depressions, 

ridges, intermound flats, and mima mound 

wetlands located along the Texas Gulf Coast. 

(viii) All waters located within the 100-year 

floodplain of a water identified in paragraphs 

(1)(i) through (iii) of this definition and all 

waters located within 4,000 feet of the high 

tide line or ordinary high water mark of a 

water identified in paragraphs (1)(i) through 

(v) of this definition where they are determined on a case-specific basis to have a significant nexus to a water identified in paragraphs (1)(i) through (v) of this definition. 

For waters determined to have a significant 

nexus, the entire water is a water of the 

United States if a portion is located within 

the 100-year floodplain of a water identified 

in (1)(i) through (iii) of this definition or 

within 4,000 feet of the high tide line or ordinary high water mark. Waters identified in 

this paragraph shall not be combined with 

waters identified in paragraph (1)(vi) of this 

definition when performing a significant 

nexus analysis. If waters identified in this 

paragraph are also an adjacent water under 

paragraph (1)(vi), they are an adjacent water 

and no case-specific significant nexus analysis is required. 

(2) The following are not ‘‘waters of the 

United States’’ even where they otherwise 

meet the terms of paragraphs (1)(iv) through 

(viii) of this definition. 

(i) Waste treatment systems, including 

treatment ponds or lagoons designed to meet 

the requirements of the Clean Water Act. 

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.] 

(ii) 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. 

(iii) The following ditches: 

(A) Ditches with ephemeral flow that are 

not a relocated tributary or excavated in a 

tributary. 

(B) Ditches with intermittent flow that are 

not a relocated tributary, excavated in a 

tributary, or drain wetlands. 

(C) Ditches that do not flow, either directly or through another water, into a 

water identified in paragraphs (1)(i) through 

(iii) of this definition. 

(iv) The following features: 

(A) Artificially irrigated areas that would 

revert to dry land should application of 

water to that area cease; 

(B) Artificial, constructed lakes and ponds 

created in dry land such as farm and stock 

watering ponds, irrigation ponds, settling basins, fields flooded for rice growing, log 

cleaning ponds, or cooling ponds; 

(C) Artificial reflecting pools or swimming 

pools created in dry land; 

(D) Small ornamental waters created in 

dry land; 

(E) Water-filled depressions created in dry 

land incidental to mining or construction activity, including pits excavated for obtaining 

fill, sand, or gravel that fill with water; 

(F) Erosional features, including gullies, 

rills, and other ephemeral features that do 

not meet the definition of tributary, nonwetland swales, and lawfully constructed 

grassed waterways; and 

(G) Puddles. 

(v) Groundwater, including groundwater 

drained through subsurface drainage systems. 

(vi) Stormwater control features constructed to convey, treat, or store 

stormwater that are created in dry land. 

(vii) Wastewater recycling structures constructed in dry land; detention and retention 

basins built for wastewater recycling; 

groundwater recharge basins; percolation 

ponds built for wastewater recycling; and 

water distributary structures built for 

wastewater recycling. 


Lhorne on DSK5TPTVN1PROD with CFR
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§ 122.2, Nt. 40 CFR Ch. I (7–1–15 Edition) 

(3) In this definition, the following terms 

apply: 

(i) Adjacent. The term adjacent means bordering, contiguous, or neighboring a water 

identified in paragraphs (1)(i) through (v) of 

this definition, including waters separated 

by constructed dikes or barriers, natural 

river berms, beach dunes, and the like. For 

purposes of adjacency, an open water such as 

a pond or lake includes any wetlands within 

or abutting its ordinary high water mark. 

Adjacency is not limited to waters located 

laterally to a water identified in paragraphs 

(1)(i) through (v) of this definition. Adjacent 

waters also include all waters that connect 

segments of a water identified in paragraphs 

(1)(i) through (v) or are located at the head 

of a water identified in paragraphs (1)(i) 

through (v) of this definition and are bordering, contiguous, or neighboring such 

water. Waters being used for established normal farming, ranching, and silviculture activities (33 U.S.C. 1344(f)) are not adjacent. 

(ii) Neighboring. The term neighboring 

means: 

(A) All waters located within 100 feet of the 

ordinary high water mark of a water identified in paragraphs (1)(i) through (v) of this 

definition. The entire water is neighboring if 

a portion is located within 100 feet of the ordinary high water mark; 

(B) All waters located within the 100-year 

floodplain of a water identified in paragraphs 

(1)(i) through (v) of this definition and not 

more than 1,500 feet from the ordinary high 

water mark of such water. The entire water 

is neighboring if a portion is located within 

1,500 feet of the ordinary high water mark 

and within the 100-year floodplain; 

(C) All waters located within 1,500 feet of 

the high tide line of a water identified in 

paragraphs (1)(i) or (iii) of this definition, 

and all waters within 1,500 feet of the ordinary high water mark of the Great Lakes. 

The entire water is neighboring if a portion 

is located within 1,500 feet of the high tide 

line or within 1,500 feet of the ordinary high 

water mark of the Great Lakes. 

(iii) Tributary and tributaries. The terms 

tributary and tributaries each mean a water 

that contributes flow, either directly or 

through another water (including an impoundment identified in paragraph (1)(iv) of 

this definition), to a water identified in paragraphs (1)(i) through (iii) of this definition 

that is characterized by the presence of the 

physical indicators of a bed and banks and 

an ordinary high water mark. These physical 

indicators demonstrate there is volume, frequency, and duration of flow sufficient to 

create a bed and banks and an ordinary high 

water mark, and thus to qualify as a tributary. A tributary can be a natural, man-altered, or man-made water and includes 

waters such as rivers, streams, canals, and 

ditches not excluded under paragraph (2) of 

this definition. A water that otherwise qualifies as a tributary under this definition does 

not lose its status as a tributary if, for any 

length, there are one or more constructed 

breaks (such as bridges, culverts, pipes, or 

dams), or one or more natural breaks (such 

as wetlands along the run of a stream, debris 

piles, boulder fields, or a stream that flows 

underground) so long as a bed and banks and 

an ordinary high water mark can be identified upstream of the break. A water that otherwise qualifies as a tributary under this definition does not lose its status as a tributary 

if it contributes flow through a water of the 

United States that does not meet the definition of tributary or through a non-jurisdictional water to a water identified in paragraphs (1)(i) through (iii) of this definition. 

(iv) Wetlands. The term 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. 

(v) Significant nexus. The term significant 

nexus means that a water, including wetlands, either alone or in combination with 

other similarly situated waters in the region, significantly affects the chemical, 

physical, or biological integrity of a water 

identified in paragraphs (1)(i) through (iii) of 

this definition. The term ‘‘in the region’’ 

means the watershed that drains to the nearest water identified in paragraphs (1)(i) 

through (iii) of this definition. For an effect 

to be significant, it must be more than speculative or insubstantial. Waters are similarly situated when they function alike and 

are sufficiently close to function together in 

affecting downstream waters. For purposes 

of determining whether or not a water has a 

significant nexus, the water’s effect on downstream (1)(i) through (iii) waters shall be assessed by evaluating the aquatic functions 

identified in paragraphs (3)(v)(A) through (I) 

of this definition. A water has a significant 

nexus when any single function or combination of functions performed by the water, 

alone or together with similarly situated 

waters in the region, contributes significantly to the chemical, physical, or biological integrity of the nearest water identified 

in paragraphs (1)(i) through (iii) of this definition. Functions relevant to the significant 

nexus evaluation are the following: 

(A) Sediment trapping, 

(B) Nutrient recycling, 

(C) Pollutant trapping, transformation, filtering, and transport, 

(D) Retention and attenuation of flood 

waters, 

(E) Runoff storage, 

(F) Contribution of flow, 

(G) Export of organic matter, 

(H) Export of food resources, and 


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Environmental Protection Agency § 122.3 

(I) Provision of life cycle dependent aquatic habitat (such as foraging, feeding, nesting, 

breeding, spawning, or use as a nursery area) 

for species located in a water identified in 

paragraphs (1)(i) through (iii) of this definition. 

(vi) Ordinary high water mark. The term ordinary high water mark means that line on 

the shore established by the fluctuations of 

water and indicated by physical characteristics such as a clear, natural line impressed 

on the bank, shelving, changes in the character of soil, destruction of terrestrial vegetation, the presence of litter and debris, or 

other appropriate means that consider the 

characteristics of the surrounding areas. 

(vii) High tide line. The term high tide line 

means the line of intersection of the land 

with the water’s surface at the maximum 

height reached by a rising tide. The high tide 

line may be determined, in the absence of actual data, by a line of oil or scum along 

shore objects, a more or less continuous deposit of fine shell or debris on the foreshore 

or berm, other physical markings or characteristics, vegetation lines, tidal gages, or 

other suitable means that delineate the general height reached by a rising tide. The line 

encompasses spring high tides and other high 

tides that occur with periodic frequency but 

does not include storm surges in which there 

is a departure from the normal or predicted 

reach of the tide due to the piling up of 

water against a coast by strong winds such 

as those accompanying a hurricane or other 

intense storm. 

* * * * * 

§ 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 §122.47(b)). This 

exclusion does not apply to the introduction of pollutants to privately 

owned treatment works or to other discharges through pipes, sewers, or other 

conveyances owned by a State, municipality, or other party not leading to 

treatment works. 

(d) Any discharge in compliance with 

the instructions of an On-Scene Coordinator pursuant to 40 CFR part 300 (The 

National Oil and Hazardous Substances 

Pollution Contingency Plan) or 33 CFR 

153.10(e) (Pollution by Oil and Hazardous Substances). 

(e) Any introduction of pollutants 

from non point-source agricultural and 

silvicultural activities, including 

storm water runoff from orchards, cultivated crops, pastures, range lands, 

and forest lands, but not discharges 

from concentrated animal feeding operations as defined in §122.23, discharges 

from concentrated aquatic animal production facilities as defined in §122.24, 

discharges to aquaculture projects as 

defined in §122.25, and discharges from 

silvicultural point sources as defined in 

§122.27. 

(f) Return flows from irrigated agriculture. 

(g) Discharges into a privately owned 

treatment works, except as the Director may otherwise require under 

§122.44(m). 

(h) [Reserved] 

(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 


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§ 122.4 40 CFR Ch. I (7–1–15 Edition) 

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; 78 FR 38594, 

June 27, 2013] 

§ 122.4 Prohibitions (applicable to 

State NPDES programs, see 

§ 123.25). 

No permit may be issued: 

(a) When the conditions of the permit 

do not provide for compliance with the 

applicable 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 §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 §123.44; 

(d) When the imposition of conditions 

cannot ensure compliance with the applicable water quality requirements of 

all affected States; 

(e) When, in the judgment of the Secretary, anchorage and navigation in or 

on any of the waters of the United 

States would be substantially impaired 

by the discharge; 

(f) For the discharge of any radiological, chemical, or biological warfare 

agent or high-level radioactive waste; 

(g) For any discharge inconsistent 

with a plan or plan amendment approved under section 208(b) of CWA; 

(h) For any discharge to the territorial sea, the waters of the contiguous 

zone, or the oceans in the following circumstances: 

(1) Before the promulgation of guidelines under section 403(c) of CWA (for 

determining degradation of the waters 

of the territorial seas, the contiguous 

zone, and the oceans) unless the Director determines permit issuance to be in 

the public interest; or 

(2) After promulgation of guidelines 

under section 403(c) of CWA, when insufficient information exists to make a 

reasonable judgment whether the discharge complies with them. 

(i) To a new source or a new discharger, if the discharge from its construction or operation will cause or 

contribute to the violation of water 

quality standards. The owner or operator of a new source or new discharger 

proposing to discharge into a water 

segment which does not meet applicable water quality standards or is not 

expected to meet those standards even 

after the application of the effluent 

limitations required by sections 

301(b)(1)(A) and 301(b)(1)(B) of CWA, and 

for which the State or interstate agency has performed a pollutants load allocation for the pollutant to be discharged, must demonstrate, before the 

close of the public comment period, 

that: 

(1) There are sufficient remaining 

pollutant load allocations to allow for 

the discharge; and 

(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 

§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] 

§ 122.5 Effect of a permit. 

(a) Applicable to State programs, see 

§123.25. (1) Except for any toxic effluent standards and prohibitions imposed 

under section 307 of the CWA and 

‘‘standards for sewage sludge use or 

disposal’’ under 405(d) of the CWA, 

compliance with a permit during its 

term constitutes 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 §§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 


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Environmental Protection Agency § 122.7 

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 

§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] 

§ 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 §124.15) if: 

(1) The permittee has submitted a 

timely application under §122.21 which 

is a complete (under §122.21(e)) application for a new permit; and 

(2) The Regional Administrator, 

through no fault of the permittee does 

not issue a new permit with an effective date under §124.15 on or before the 

expiration date of the previous permit 

(for 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 §124.6. If the permit is denied, the owner or operator 

would then be required to cease the activities authorized by the continued 

permit or be subject to enforcement action for operating without a permit; 

(3) Issue a new permit under part 124 

with appropriate conditions; or 

(4) Take other actions authorized by 

these regulations. 

(d) State continuation. (1) An EPAissued 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] 

§ 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 

§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 

§123.25. Information required by 

NPDES application forms provided by 

the Director under §122.21 may not be 

claimed confidential. This includes information submitted on the forms 

themselves and any attachments used 

to supply information required by the 

forms. 


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§ 122.21 40 CFR Ch. I (7–1–15 Edition) 

Subpart B—Permit Application 

and Special NPDES Program 

Requirements 

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

§ 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 §122.28, excluded under 

§122.3, or a user of a privately owned 

treatment works unless the Director 

requires otherwise under §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 

§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. 

(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 §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 §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 §122.26(b)(14)(x) or 


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Environmental Protection Agency § 122.21 

(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 §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. 

(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 

§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 


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§ 122.21 40 CFR Ch. I (7–1–15 Edition) 

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. 

(3) Except as specified in 

122.21(e)(3)(ii), a permit application 

shall not be considered complete unless 

all required quantitative data are collected in accordance with sufficiently 

sensitive analytical methods approved 

under 40 CFR part 136 or required under 

40 CFR chapter I, subchapter N or O. 

(i) For the purposes of this requirement, a method approved under 40 CFR 

part 136 or required under 40 CFR chapter I, subchapter N or O is ‘‘sufficiently 

sensitive’’ when: 

(A) The method minimum level (ML) 

is at or below the level of the applicable water quality criterion for the 

measured pollutant or pollutant parameter; or 

(B) The method ML is above the applicable water quality criterion, but 

the amount of the pollutant or pollutant parameter in a facility’s discharge 

is high enough that the method detects 

and quantifies the level of the pollutant or pollutant parameter in the discharge; or 

(C) The method has the lowest ML of 

the analytical methods approved under 

40 CFR part 136 or required under 40 

CFR chapter I, subchapter N or O for 

the measured pollutant or pollutant 

parameter. 

NOTE TO PARAGRAPH (e)(3)(i): Consistent 

with 40 CFR part 136, applicants have the option of providing matrix or sample specific 

minimum levels rather than the published 

levels. Further, where an applicant can demonstrate that, despite a good faith effort to 

use a method that would otherwise meet the 

definition of ‘‘sufficiently sensitive’’, the analytical results are not consistent with the 

QA/QC specifications for that method, then 

the Director may determine that the method 

is not performing adequately and the applicant should select a different method from 

the remaining EPA-approved methods that is 

sufficiently sensitive consistent with 40 CFR 

122.21(e)(3)(i). Where no other EPA-approved 

methods exist, the applicant should select a 

method consistent with 40 CFR 

122.21(e)(3)(ii). 

(ii) When there is no analytical method that has been approved under 40 

CFR part 136, required under 40 CFR 

chapter I, subchapter N or O, and is not 

otherwise required by the Director, the 

applicant may use any suitable method 

but shall provide a description of the 

method. When selecting a suitable 

method, other factors such as a method’s precision, accuracy, or resolution, 

may be considered when assessing the 

performance of the method. 

(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. 


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Environmental Protection Agency § 122.21 

(ix) Other relevant environmental 

permits, including State permits. 

(7) A topographic map (or other map 

if a topographic map is unavailable) extending one mile beyond the property 

boundaries of the source, depicting the 

facility and each of its intake and discharge structures; each of its hazardous waste treatment, storage, or 

disposal facilities; each well where 

fluids from the facility are injected underground; and those wells, springs, 

other surface water bodies, and drinking water wells listed in public records 

or otherwise known to the applicant in 

the map area. 

(8) A brief description of the nature 

of the business. 

(g) Application requirements for existing 

manufacturing, commercial, mining, and 

silvicultural dischargers. Existing manufacturing, commercial mining, and silvicultural dischargers applying for 

NPDES permits, except for those facilities subject to the requirements of 

§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 §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 §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 


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required under subchapters N or O, the 

applicant may use any suitable method 

but must provide a description of the 

method. When an applicant has two or 

more outfalls with substantially identical effluents, the Director may allow 

the applicant to test only one outfall 

and report that 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 §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 §122.26(d) may collect flowweighted 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 

§122.26(c)(1). For all storm water permit applicants taking flow-weighted 

composites, quantitative data must be 

reported for all pollutants specified in 

§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 


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or maximum level of precipitation required for an appropriate storm event, 

the form of precipitation sampled 

(snow melt or rain fall), protocols for 

collecting samples under 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 


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required to analyze for pollutants listed in table II of appendix D of this part 

(the organic toxic pollutants). 

(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 


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or expected to be used upon commencement of operations, along with their 

composition if existing composition is 

available. 

(4) Effluent characteristics. (i) Quantitative data for the pollutants or parameters listed below, unless testing is 

waived by the Director. The quantitative data may be data collected 

over the past 365 days, if they remain 

representative of current operations, 

and must include maximum daily 

value, average daily value, and number 

of measurements taken. The applicant 

must collect and analyze samples in accordance with 40 CFR Part 136. 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 §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 §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 §122.45(g). 

(8) Certification. Signature of certifying official under §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 §122.23) and concentrated 

aquatic animal production facilities 

(defined in §122.24) shall provide the 

following information to the Director, 

using the application form provided by 

the Director: 


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(1) For concentrated animal feeding 

operations: 

(i) The name of the owner or operator; 

(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 §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; 


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Environmental Protection Agency § 122.21 

(B) Underground Injection Control 

program under the Safe Drinking 

Water Act (SDWA); 

(C) NPDES program under Clean 

Water Act (CWA); 

(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; 


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(ii) Topographic map. A topographic 

map (or other map if a topographic 

map is unavailable) extending at least 

one mile beyond property boundaries of 

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., highrate) 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: 


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Environmental Protection Agency § 122.21 

(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); 

(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 


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§ 122.21 40 CFR Ch. I (7–1–15 Edition) 

(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. 

(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 nonpoint 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 


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Environmental Protection Agency § 122.21 

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. 

(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 


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§ 122.21 40 CFR Ch. I (7–1–15 Edition) 

(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 

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 §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 §122.26(c)(1) and this section (except 


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Environmental Protection Agency § 122.21 

as provided by §122.26(c)(1)(ii)) shall 

provide the following information to 

the Director, using the application 

forms provided by the Director: 

(1) Expected outfall location. The latitude and longitude to the nearest 15 

seconds and the name of the receiving 

water. 

(2) Discharge dates. The expected date 

of commencement of discharge. 

(3) Flows, sources of pollution, and 

treatment technologies—(i) Expected 

treatment of wastewater. Description of 

the treatment that the wastewater will 

receive, along with all operations contributing wastewater to the effluent, 

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 

§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 

§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 §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 


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§ 122.21 40 CFR Ch. I (7–1–15 Edition) 

production of less than 100,000 tons of 

coal per year. 

(iv) The applicant is required to report that 2,3,7,8 Tetrachlorodibenzo-PDioxin (TCDD) may be discharged if he 

uses or manufactures one of the following compounds, or if he knows or 

has reason to believe that TCDD will or 

may be present in an effluent: 

(A) 2,4,5-trichlorophenoxy acetic acid 

(2,4,5-T) (CAS #93–76–5); 

(B) 2-(2,4,5-trichlorophenoxy) propanoic acid (Silvex, 2,4,5-TP) (CAS #93– 

72–1); 

(C) 2-(2,4,5-trichlorophenoxy) ethyl 

2,2-dichloropropionate (Erbon) (CAS 

#136–25–4); 

(D) 0,0-dimethyl 0-(2,4,5- 

trichlorophenyl) phosphorothioate 

(Ronnel) (CAS #299–84–3); 

(E) 2,4,5-trichlorophenol (TCP) (CAS 

#95–95–4); or 

(F) Hexachlorophene (HCP) (CAS #70– 

30–4); 

(v) Each applicant must report any 

pollutants listed in table V of appendix 

D (certain hazardous substances) if he 

believes they will be present in any 

outfall (no quantitative estimates are 

required unless they are already available). 

(vi) No later than two years after the 

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 §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 §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 §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 §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 §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 §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 


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Environmental Protection Agency § 122.21 

available (BPT), by the close of the 

public comment period under §124.10. 

(B) For a request from best available 

technology economically achievable 

(BAT) and/or best 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 

§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 §124.10 demonstrating that the requirements of 

§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 §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 §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 

§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 


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§ 122.21 40 CFR Ch. I (7–1–15 Edition) 

section 301(b)(1)(B) for discharges into 

marine waters must be filed in accordance with the requirements of 40 CFR 

part 125, subpart G. 

(2) [Reserved] 

(3) Water quality based effluent limitation. A modification under CWA section 

302(b)(2) of the requirements under section 302(a) for achieving water quality 

based effluent limitations shall be requested no later than the close of the 

public comment period under §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 §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); 


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Environmental Protection Agency § 122.21 

(iii) NPDES program under the Clean 

Water Act (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 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 


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§ 122.21 40 CFR Ch. I (7–1–15 Edition) 

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 

§503.13(b)(3), the Class A pathogen requirements in §503.32(a), and one of the 

vector attraction reduction requirements in §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 


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Environmental Protection Agency § 122.21 

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 §503.13(b)(2) will be applied, 

to ascertain whether bulk sewage 

sludge subject to §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 §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 §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 × 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: 


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§ 122.21 40 CFR Ch. I (7–1–15 Edition) 

(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 


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Environmental Protection Agency § 122.21 

(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 §122.22. 

[Note 1: At 46 FR 2046, Jan. 8, 1981, the Environmental Protection Agency suspended 

until further notice §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 §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 §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 


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§ 122.21 40 CFR Ch. I (7–1–15 Edition) 

1EDITORIAL NOTE: The words ‘‘This revision’’ refer to the document published at 48 

FR 14153, Apr. 1, 1983. 

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

(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) (except (r)(4)(ix), (x), (xi), and (xii)) of this 

section and §125.86 of this chapter as 

part of the permit 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) (except (r)(4)(ix), (x), (xi), and (xii)) of this 

section and §125.136 of this chapter as 

part of their permit application. 

(ii) Existing facilities. (A) All existing 

facilities. The owner or operator of an 

existing facility defined at 40 CFR 

125.92(k) must submit to the Director 

for review the information required 

under paragraphs (r)(2) and (3) of this 

section and applicable provisions of 

paragraphs (r)(4), (5), (6), (7), and (8) of 

this section. 

(B) Existing facilities greater than 125 

mgd AIF. In addition, the owner or operator of an existing facility that withdraws greater than 125 mgd actual intake flow (AIF), as defined at 40 CFR 

125.92 (a), of water for cooling purposes 

must also submit to the Director for 

review the information required under 

paragraphs (r)(9), (10), (11), (12), and (13) 

of this section. If the owner or operator 

of an existing facility intends to comply with the BTA (best technology 

available) standards for entrainment 

using a closed-cycle recirculating system as defined at 40 CFR 125.92(c), the 

Director may reduce or waive some or 

all of the information required under 

paragraphs (r)(9) through (13) of this 

section. 

(C) Additional information. The owner 

or operator of an existing facility must 

also submit such additional information as the Director determines is necessary pursuant to 40 CFR 125.98(i). 

(D) New units at existing facilities. The 

owner or operator of a new unit at an 

existing facility, as defined at 40 CFR 

125.92(u), must submit or update any 

information previously provided to the 

Director by submitting the information required under paragraphs (r)(2), 

(3), (5), (8), and (14) of this section and 

applicable provisions of paragraphs 

(r)(4), (6), and (7) of this section. Requests for and approvals of alternative 

requirements sought under 40 CFR 

125.94(e)(2) or 125.98(b)(7) must be submitted with the permit application. 

(E) New units at existing facilities not 

previously subject to Part 125. The owner 

or operator of a new unit as defined at 

40 CFR 125.92(u) at an existing facility 

not previously subject to part 125 of 

this chapter that increases the total 

capacity of the existing facility to 

more than 2 mgd DIF must submit the 

information required under paragraphs 

(r)(2), (3), (5), and (8) of this section and 

applicable provisions of paragraphs 

(r)(4), (6), and (7) of this section at the 

time of the permit application for the 

new unit. Requests for alternative requirements under 40 CFR 125.94(e)(2) or 

125.98(b)(7) must be submitted with the 

permit application. If the total capacity of the facility will increase to more 

than 125 mgd AIF, the owner or operator must also submit the information 

required in paragraphs (r)(9) through 

(13) of this section. If the owner or operator of an existing facility intends to 


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Environmental Protection Agency § 122.21 

comply with the BTA (best technology 

available) standards for entrainment 

using a closed-cycle recirculating system as defined at 40 CFR 125.92(c), the 

Director may reduce or waive some or 

all of the information required under 

paragraphs (r)(9) through (13) of this 

section. 

(F) If the owner or operator of an existing facility plans to retire the facility before the current permit expires, 

then the requirements of paragraphs 

(r)(1)(ii)(A), (B), (C), (D), and (E) of this 

section do not apply. 

(G) If the owner or operator of an existing facility plans to retire the facility after the current permit expires but 

within one permit cycle, then the Director may waive the requirements of 

paragraphs (r)(7), (9), (10), (11), (12), and 

(13) of this section pending a signed 

certification statement from the owner 

or operator of the facility specifying 

the last operating date of the facility. 

(H) All facilities. The owner or operator of any existing facility or new 

unit at any existing facility must also 

submit with its permit application all 

information received as a result of any 

communication with a Field Office of 

the Fish and Wildlife Service and/or 

Regional Office of the National Marine 

Fisheries Service. 

(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 §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. 

(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 §125.86(b)(4) or §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; 


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(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. 

(ix) In the case of the owner or operator of an existing facility or new unit 

at an existing facility, the Source Water 

Baseline Biological Characterization Data 

is the information in paragraphs 

(r)(4)(i) through (xii) of this section. 

(x) For the owner or operator of an 

existing facility, identification of protective measures and stabilization activities that have been implemented, 

and a description of how these measures and activities affected the baseline water condition in the vicinity of 

the intake. 

(xi) For the owner or operator of an 

existing facility, a list of fragile species, as defined at 40 CFR 125.92(m), at 

the facility. The applicant need only 

identify those species not already identified as fragile at 40 CFR 125.92(m). 

New units at an existing facility are 

not required to resubmit this information if the cooling water withdrawals 

for the operation of the new unit are 

from an existing intake. 

(xii) For the owner or operator of an 

existing facility that has obtained incidental take exemption or authorization 

for its cooling water intake structure(s) from the U.S. Fish and Wildlife 

Service or the National Marine Fisheries Service, any information submitted in order to obtain that exemption or authorization may be used to 

satisfy the permit application information requirement of paragraph 40 CFR 

125.95(f) if included in the application. 

(5) Cooling Water System Data. The 

owner or operator of an existing facility must submit the following information for each cooling water intake 

structure used or intended to be used: 

(i) A narrative description of the operation of the cooling water system 

and 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; the 

proportion of design intake flow for 

contact cooling, non-contact cooling, 

and process uses; a distribution of 

water reuse to include cooling water 

reused as process water, process water 

reused for cooling, and the use of gray 

water for cooling; a description of reductions in total water withdrawals including cooling water intake flow reductions already achieved through 

minimized process water withdrawals; 

a description of any cooling water that 

is used in a manufacturing process either before or after it is used for cooling, including other recycled process 

water flows; the proportion of the 

source waterbody withdrawn (on a 

monthly basis); 

(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; and 

(iii) Description of existing impingement and entrainment technologies or 

operational measures and a summary 


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of their performance, including but not 

limited to reductions in impingement 

mortality and entrainment due to intake location and reductions in total 

water withdrawals and usage. 

(6) Chosen Method(s) of Compliance 

with Impingement Mortality Standard. 

The owner or operator of the facility 

must identify the chosen compliance 

method for the entire facility; alternatively, the applicant must identify 

the chosen compliance method for each 

cooling water intake structure at its 

facility. The applicant must identify 

any intake structure for which a BTA 

determination for Impingement Mortality under 40 CFR 125.94 (c)(11) or (12) 

is requested. In addition, the owner or 

operator that chooses to comply via 40 

CFR 125.94 (c)(5) or (6) must also submit an impingement technology performance optimization study as described 

below: 

(i) If the applicant chooses to comply 

with 40 CFR 125.94(c)(5), subject to the 

flexibility for timing provided in 40 

CFR 125.95(a)(2), the impingement technology performance optimization study 

must include two years of biological 

data collection measuring the reduction in impingement mortality 

achieved by the modified traveling 

screens as defined at 40 CFR 125.92(s) 

and demonstrating that the operation 

has been optimized to minimize impingement mortality. A complete description of the modified traveling 

screens and associated equipment must 

be included, including, for example, 

type of mesh, mesh slot size, pressure 

sprays and fish return mechanisms. A 

description of any biological data collection and data collection approach 

used in measuring impingement mortality must be included: 

(A) Collecting data no less frequently 

than monthly. The Director may establish more frequent data collection; 

(B) Biological data collection representative of the impingement and the 

impingement mortality at the intakes 

subject to this provision; 

(C) A taxonomic identification to the 

lowest taxon possible of all organisms 

collected; 

(D) The method in which naturally 

moribund organisms are identified and 

taken into account; 

(E) The method in which mortality 

due to holding times is taken into account; 

(F) If the facility entraps fish or 

shellfish, a count of entrapment, as defined at 40 CFR 125.92(j), as impingement mortality; and 

(G) The percent impingement mortality reflecting optimized operation of 

the modified traveling screen and all 

supporting calculations. 

(ii) If the applicant chooses to comply with 40 CFR 125.94(c)(6), the impingement technology performance optimization study must include biological 

data measuring the reduction in impingement mortality achieved by operation of the system of technologies, 

operational measures and best management practices, and demonstrating 

that operation of the system has been 

optimized to minimize impingement 

mortality. This system of technologies, 

operational measures and best management practices may include flow reductions, seasonal operation, unit closure, 

credit for intake location, and behavioral deterrent systems. The applicant 

must document how each system element contributes to the system’s performance. The applicant must include 

a minimum of two years of biological 

data measuring the reduction in impingement mortality achieved by the 

system. The applicant must also include a description of any sampling or 

data collection approach used in measuring the rate of impingement, impingement mortality, or flow reductions. 

(A) Rate of Impingement. If the demonstration relies in part on a credit for 

reductions in the rate of impingement 

in the system, the applicant must provide an estimate of those reductions to 

be used as credit towards reducing impingement mortality, and any relevant 

supporting documentation, including 

previously collected biological data, 

performance reviews, and previously 

conducted performance studies not already submitted to the Director. The 

submission of studies more than 10 

years old must include an explanation 

of why the data are still relevant and 

representative of conditions at the facility and explain how the data should 

be interpreted using the definitions of 

impingement and entrapment at 40 


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CFR 125.92(n) and (j), respectively. The 

estimated reductions in rate of impingement must be based on a comparison of the system to a once-through 

cooling system with a traveling screen 

whose point of withdrawal from the 

surface water source is located at the 

shoreline of the source waterbody. For 

impoundments that are waters of the 

United States in whole or in part, the 

facility’s rate of impingement must be 

measured at a location within the cooling water intake system that the Director deems appropriate. In addition, 

the applicant must include two years 

of biological data collection demonstrating the rate of impingement resulting from the system. For this demonstration, the applicant must collect 

data no less frequently than monthly. 

The Director may establish more frequent data collection. 

(B) Impingement Mortality. If the demonstration relies in part on a credit for 

reductions in impingement mortality 

already obtained at the facility, the applicant must include two years of biological data collection demonstrating 

the level of impingement mortality the 

system is capable of achieving. The applicant must submit any relevant supporting documentation, including previously collected biological data, performance reviews, and previously conducted performance studies not already 

submitted to the Director. The applicant must provide a description of any 

sampling or data collection approach 

used in measuring impingement mortality. In addition, for this demonstration the applicant must: 

(1) Collect data no less frequently 

than monthly. The Director may establish more frequent data collection; 

(2) Conduct biological data collection 

that is representative of the impingement and the impingement mortality 

at an intake subject to this provision. 

In addition, the applicant must describe how the location of the cooling 

water intake structure in the 

waterbody and the water column are 

accounted for in the points of data collection; 

(3) Include a taxonomic identification to the lowest taxon possible of all 

organisms to be collected; 

(4) Describe the method in which naturally moribund organisms are identified and taken into account; 

(5) Describe the method in which 

mortality due to holding times is 

taken into account; and 

(6) If the facility entraps fish or 

shellfish, a count of the entrapment, as 

defined at 40 CFR 125.92(j), as impingement mortality. 

(C) Flow reduction. If the demonstration relies in part on flow reduction to 

reduce impingement, the applicant 

must include two years of intake flows, 

measured daily, as part of the demonstration, and describe the extent to 

which flow reductions are seasonal or 

intermittent. The applicant must document how the flow reduction results in 

reduced impingement. In addition, the 

applicant must describe how the reduction in impingement has reduced impingement mortality. 

(D) Total system performance. The applicant must document the percent impingement mortality reflecting optimized operation of the total system of 

technologies, operational measures, 

and best management practices and all 

supporting calculations. The total system performance is the combination of 

the impingement mortality performance reflected in paragraphs 

(r)(6)(ii)(A), (B), and (C) of this section. 

(7) Entrainment Performance Studies. 

The owner or operator of an existing 

facility must submit any previously 

conducted studies or studies obtained 

from other facilities addressing technology efficacy, through-facility entrainment survival, and other entrainment studies. Any such submittals 

must include a description of each 

study, together with underlying data, 

and a summary of any conclusions or 

results. Any studies conducted at other 

locations must include an explanation 

as to why the data from other locations are relevant and representative of 

conditions at your facility. In the case 

of studies more than 10 years old, the 

applicant must explain why the data 

are still relevant and representative of 

conditions at the facility and explain 

how the data should be interpreted 

using the definition of entrainment at 

40 CFR 125.92(h). 

(8) Operational Status. The owner or 

operator of an existing facility must 


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Environmental Protection Agency § 122.21 

submit a description of the operational 

status of each generating, production, 

or process unit that uses cooling water, 

including but not limited to: 

(i) For power production or steam 

generation, descriptions of individual 

unit operating status including age of 

each unit, capacity utilization rate (or 

equivalent) for the previous 5 years, including any extended or unusual outages that significantly affect current 

data for flow, impingement, entrainment, or other factors, including identification of any operating unit with a 

capacity utilization rate of less than 8 

percent averaged over a 24-month block 

contiguous period, and any major upgrades completed within the last 15 

years, including but not limited to 

boiler replacement, condenser replacement, turbine replacement, or changes 

to fuel type; 

(ii) Descriptions of completed, approved, or scheduled uprates and Nuclear Regulatory Commission relicensing status of each unit at nuclear 

facilities; 

(iii) For process units at your facility 

that use cooling water other than for 

power production or steam generation, 

if you intend to use reductions in flow 

or changes in operations to meet the 

requirements of 40 CFR 125.94(c), descriptions of individual production 

processes and product lines, operating 

status including age of each line, seasonal operation, including any extended or unusual outages that significantly affect current data for flow, impingement, entrainment, or other factors, any major upgrades completed 

within the last 15 years, and plans or 

schedules for decommissioning or replacement of process units or production processes and product lines; 

(iv) For all manufacturing facilities, 

descriptions of current and future production schedules; and 

(v) Descriptions of plans or schedules 

for any new units planned within the 

next 5 years. 

(9) Entrainment Characterization 

Study. The owner or operator of an existing facility that withdraws greater 

than 125 mgd AIF, where the withdrawal of cooling water is measured at 

a location within the cooling water intake structure that the Director deems 

appropriate, must develop for submission to the Director an Entrainment 

Characterization Study that includes a 

minimum of two years of entrainment 

data collection. The Entrainment 

Characterization Study must include 

the following components: 

(i) Entrainment Data Collection Method. The study should identify and document the data collection period and 

frequency. The study should identify 

and document organisms collected to 

the lowest taxon possible of all life 

stages of fish and shellfish that are in 

the vicinity of the cooling water intake 

structure(s) and are susceptible to entrainment, including any organisms 

identified by the Director, and any species protected under Federal, State, or 

Tribal law, including threatened or endangered species with a habitat range 

that includes waters in the vicinity of 

the cooling water intake structure. Biological data collection must be representative of the entrainment at the 

intakes subject to this provision. The 

owner or operator of the facility must 

identify and document how the location of the cooling water intake structure in the waterbody and the water 

column are accounted for by the data 

collection locations; 

(ii) Biological Entrainment Characterization. Characterization of all life 

stages of fish, shellfish, and any species 

protected under Federal, State, or 

Tribal law (including threatened or endangered species), including a description of their abundance and their 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 entrainment, including 

but not limited to variations related to 

climate and weather differences, 

spawning, feeding, and water column 

migration. This characterization may 

include historical data that are representative of the current operation of 

the facility and of biological conditions 

at the site. Identification of all life 

stages of fish and shellfish must include identification of any surrogate 

species used, and identification of data 

representing both motile and nonmotile life-stages of organisms; 

(iii) Analysis and Supporting Documentation. Documentation of the current entrainment of all life stages of 


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fish, shellfish, and any species protected under Federal, State, or Tribal 

law (including threatened or endangered species). The documentation may 

include historical data that are representative of the current operation of 

the facility and of biological conditions 

at the site. Entrainment data to support the facility’s calculations must be 

collected during periods of representative operational flows for the cooling 

water intake structure, and the flows 

associated with the data collection 

must be documented. The method used 

to determine latent mortality along 

with data for specific organism mortality or survival that is applied to 

other life-stages or species must be 

identified. The owner or operator of the 

facility must identify and document all 

assumptions and calculations used to 

determine the total entrainment for 

that facility together with all methods 

and quality assurance/quality control 

procedures for data collection and data 

analysis. The proposed data collection 

and data analysis methods must be appropriate for a quantitative survey. 

(10) Comprehensive Technical Feasibility and Cost Evaluation Study. The 

owner or operator of an existing facility that withdraws greater than 125 

mgd AIF must develop for submission 

to the Director an engineering study of 

the technical feasibility and incremental costs of candidate entrainment 

control technologies. In addition, the 

study must include the following: 

(i) Technical feasibility. An evaluation 

of the technical feasibility of closedcycle recirculating systems as defined 

at 40 CFR 125.92(c), fine mesh screens 

with a mesh size of 2 millimeters or 

smaller, and water reuse or alternate 

sources of cooling water. In addition, 

this study must include: 

(A) A description of all technologies 

and operational measures considered 

(including alternative designs of 

closed-cycle recirculating systems such 

as natural draft cooling towers, mechanical draft cooling towers, hybrid 

designs, and compact or multi-cell arrangements); 

(B) A discussion of land availability, 

including an evaluation of adjacent 

land and acres potentially available 

due to generating unit retirements, 

production unit retirements, other 

buildings and equipment retirements, 

and potential for repurposing of areas 

devoted to ponds, coal piles, rail yards, 

transmission yards, and parking lots; 

(C) A discussion of available sources 

of process water, grey water, waste 

water, reclaimed water, or other 

waters of appropriate quantity and 

quality for use as some or all of the 

cooling water needs of the facility; and 

(D) Documentation of factors other 

than cost that may make a candidate 

technology impractical or infeasible 

for further evaluation. 

(ii) Other entrainment control technologies. An evaluation of additional 

technologies for reducing entrainment 

may be required by the Director. 

(iii) Cost evaluations. The study must 

include engineering cost estimates of 

all technologies considered in paragraphs (r)(10)(i) and (ii) of this section. 

Facility costs must also be adjusted to 

estimate social costs. All costs must be 

presented as the net present value 

(NPV) and the corresponding annual 

value. Costs must be clearly labeled as 

compliance costs or social costs. The 

applicant must separately discuss facility level compliance costs and social 

costs, and provide documentation as 

follows: 

(A) Compliance costs are calculated 

as after-tax, while social costs are calculated as pre-tax. Compliance costs 

include the facility’s administrative 

costs, including costs of permit application, while the social cost adjustment includes the Director’s administrative costs. Any outages, downtime, 

or other impacts to facility net revenue, are included in compliance costs, 

while only that portion of lost net revenue that does not accrue to other producers can be included in social costs. 

Social costs must also be discounted 

using social discount rates of 3 percent 

and 7 percent. Assumptions regarding 

depreciation schedules, tax rates, interest rates, discount rates and related 

assumptions must be identified; 

(B) Costs and explanation of any additional facility modifications necessary to support construction and operation of technologies considered in 

paragraphs (r)(10)(i) and (ii) of this section, including but not limited to relocation of existing buildings or equipment, reinforcement or upgrading of 


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existing equipment, and additional 

construction and operating permits. 

Assumptions regarding depreciation 

schedules, interest rates, discount 

rates, useful life of the technology considered, and any related assumptions 

must be identified; and 

(C) Costs and explanation for addressing any non-water quality environmental and other impacts identified in 

paragraph (r)(12) of this section. The 

cost evaluation must include a discussion of all reasonable attempts to mitigate each of these impacts. 

(11) Benefits Valuation Study. The 

owner or operator of an existing facility that withdraws greater than 125 

mgd AIF must develop for submission 

to the Director an evaluation of the 

benefits of the candidate entrainment 

reduction technologies and operational 

measures evaluated in paragraph (r)(10) 

of this section including using the Entrainment Characterization Study 

completed in paragraph (r)(9) of this 

section. Each category of benefits must 

be described narratively, and when possible, benefits should be quantified in 

physical or biological units and monetized using appropriate economic valuation methods. The benefits valuation 

study must include, but is not limited 

to, the following elements: 

(i) Incremental changes in the numbers of individual fish and shellfish lost 

due to impingement mortality and entrainment as defined in 40 CFR 125.92, 

for all life stages of each exposed species; 

(ii) Description of basis for any estimates of changes in the stock sizes or 

harvest levels of commercial and recreational fish or shellfish species or 

forage fish species; 

(iii) Description of basis for any monetized values assigned to changes in 

the stock size or harvest levels of commercial and recreational fish or shellfish species, forage fish, and to any 

other ecosystem or non use benefits; 

(iv) A discussion of mitigation efforts 

completed prior to October 14, 2014 including how long they have been in effect and how effective they have been; 

(v) Discussion, with quantification 

and monetization, where possible, of 

any other benefits expected to accrue 

to the environment and local communities, including but not limited to improvements for mammals, birds, and 

other organisms and aquatic habitats; 

(vi) Discussion, with quantification 

and monetization, where possible, of 

any benefits expected to result from 

any reductions in thermal discharges 

from entrainment technologies. 

(12) Non-water Quality Environmental 

and Other Impacts Study. The owner or 

operator of an existing facility that 

withdraws greater than 125 mgd AIF 

must develop for submission to the Director a detailed facility-specific discussion of the changes in non-water 

quality environmental and other impacts attributed to each technology 

and operational measure considered in 

paragraph (r)(10) of this section, including both impacts increased and impacts 

decreased. The study must include the 

following: 

(i) Estimates of changes to energy 

consumption, including but not limited 

to auxiliary power consumption and 

turbine backpressure energy penalty; 

(ii) Estimates of air pollutant emissions and of the human health and environmental impacts associated with 

such emissions; 

(iii) Estimates of changes in noise; 

(iv) A discussion of impacts to safety, 

including documentation of the potential for plumes, icing, and availability 

of emergency cooling water; 

(v) A discussion of facility reliability, including but not limited to facility availability, production of 

steam, impacts to production based on 

process unit heating or cooling, and reliability due to cooling water availability; 

(vi) Significant changes in consumption of water, including a facility-specific comparison of the evaporative 

losses of both once-through cooling and 

closed-cycle recirculating systems, and 

documentation of impacts attributable 

to changes in water consumption; and 

(vii) A discussion of all reasonable attempts to mitigate each of these factors. 

(13) Peer Review. If the applicant is 

required to submit studies under paragraphs (r)(10) through (12) of this section, the applicant must conduct an external peer review of each report to be 

submitted with the permit application. 

The applicant must select peer reviewers and notify the Director in advance 


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§ 122.22 40 CFR Ch. I (7–1–15 Edition) 

of the peer review. The Director may 

disapprove of a peer reviewer or require 

additional peer reviewers. The Director 

may confer with EPA, Federal, State 

and Tribal fish and wildlife management agencies with responsibility for 

fish and wildlife potentially affected by 

the cooling water intake structure, 

independent system operators, and 

state public utility regulatory agencies, to determine which peer review 

comments must be addressed. The applicant must provide an explanation 

for any significant reviewer comments 

not accepted. Peer reviewers must have 

appropriate qualifications and their 

names and credentials must be included in the peer review report. 

(14) New Units. The applicant must 

identify the chosen compliance method 

for the new unit. In addition, the owner 

or operator that selects the BTA standards for new units at 40 CFR 125.94 

(e)(2) as its route to compliance must 

submit information to demonstrate entrainment reductions equivalent to 90 

percent or greater of the reduction 

that could be achieved through compliance with 40 CFR 125.94(e)(1). The demonstration must include the Entrainment Characterization Study at paragraph (r)(9) of this section. In addition, 

if data specific to your facility indicates that compliance with the requirements of §125.94 of this chapter for 

each new unit would result in compliance costs wholly out of proportion to 

the costs EPA considered in establishing the requirements 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, you 

must submit all supporting data as 

part of paragraph (r)(14) of this section. 

The Director may determine that additional data and information, including 

but not limited to monitoring, must be 

included as part of paragraph (r)(14) of 

this section. 

[48 FR 14153, Apr. 1, 1983] 

EDITORIAL NOTE: For FEDERAL REGISTER citations affecting §122.21, see the List of CFR 

Sections Affected, which appears in the 

Finding Aids section of the printed volume 

and at www.fdsys.gov. 

§ 122.22 Signatories to permit applications and reports (applicable to 

State programs, see § 123.25). 

(a) Applications. All permit applications shall be signed as follows: 

(1) For a corporation. By a responsible 

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 decisionmaking 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 

§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 §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 


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Environmental Protection Agency § 122.23 

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] 

§ 122.23 Concentrated animal feeding 

operations (applicable to State 

NPDES programs, see § 123.25). 

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

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. 


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§ 122.23 40 CFR Ch. I (7–1–15 Edition) 

(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; 

(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. 


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Environmental Protection Agency § 122.23 

(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; 

(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) NPDES permit authorization—(1) 

Permit Requirement. A CAFO must not 

discharge unless the discharge is authorized by an NPDES permit. In order 

to obtain authorization under an 

NPDES permit, 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. 

(2) Information to submit with permit 

application or notice of intent. An application for an individual permit must 

include the information specified in 


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§ 122.23 40 CFR Ch. I (7–1–15 Edition) 

§122.21. A notice of intent for a general 

permit must include the information 

specified in §§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 §122.21. A notice 

of intent for a general permit must include the information specified in 

§§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 

§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 

§122.42(e)(1)(vi) through (ix). 

(2) Unpermitted Large CAFOs must 

maintain documentation specified in 

§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) By when must the owner or operator 

of a CAFO have an NPDES permit if it 

discharges? A CAFO must be covered by 

a permit at the time that it discharges. 

(g) [Reserved] 

(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 §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 

§122.21(i)(1), including a nutrient management plan that meets the requirements of §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 §§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 

CAFO owner or operator under the general permit, the terms of the nutrient 


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Environmental Protection Agency § 122.26 

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 §122.28(b)(3). 

[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; 77 FR 44497, 

July 30, 2012] 

§ 122.24 Concentrated aquatic animal 

production facilities (applicable to 

State NPDES programs, see 

§ 123.25). 

(a) Permit requirement. Concentrated 

aquatic animal production facilities, as 

defined in this 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] 

§ 122.25 Aquaculture projects (applicable to State NPDES programs, see 

§ 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. 

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

§ 123.25). 

(a) Permit requirement. (1) Prior to October 1, 1994, discharges composed entirely of storm water shall not be required to obtain a NPDES permit except: 


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§ 122.26 40 CFR Ch. I (7–1–15 Edition) 

(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 §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 §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 

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: 


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Environmental Protection Agency § 122.26 

(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 systemwide basis, jurisdiction-wide basis, watershed basis or other appropriate 

basis, or may issue permits for individual discharges. 

(6) Non-municipal separate storm sewers. For storm water discharges associated with industrial activity from 

point sources which discharge through 

a non-municipal or non-publicly owned 

separate storm sewer system, the Director, in his discretion, may issue: a 

single NPDES permit, with each discharger a co-permittee to a permit 

issued to the operator of the portion of 

the system that discharges into waters 

of the United States; or, individual permits to each discharger of storm water 

associated with industrial activity 

through the non-municipal conveyance 

system. 

(i) All storm water discharges associated with industrial activity that discharge through a storm water discharge system that is not a municipal 

separate storm sewer must be covered 

by an individual permit, or a permit 

issued to the operator of the portion of 

the system that discharges to waters of 


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§ 122.26 40 CFR Ch. I (7–1–15 Edition) 

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 §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 §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 §§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 

§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 

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 


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Environmental Protection Agency § 122.26 

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. 

(8) Municipal separate storm sewer 

means a conveyance or system of conveyances (including roads with drainage systems, municipal streets, catch 

basins, curbs, gutters, ditches, manmade channels, or storm drains): 

(i) Owned or operated by a State, 

city, town, borough, county, parish, 

district, association, or other public 


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§ 122.26 40 CFR Ch. I (7–1–15 Edition) 

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 

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 


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Environmental Protection Agency § 122.26 

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 within Standard Industrial Classification 24, Industry Group 241 that are rock crushing, 

gravel washing, log sorting, or log storage facilities operated in connection 

with silvicultural activities defined in 

40 CFR 122.27(b)(2)–(3) and Industry 

Groups 242 through 249; 26 (except 265 

and 267), 28 (except 283), 29, 311, 32 (except 323), 33, 3441, 373; (not included are 

all other types of silviculture facilities); 

(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 


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§ 122.26 40 CFR Ch. I (7–1–15 Edition) 

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/federallregister/ 

codeloflfederallregulations/ 

ibrllocations.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 § 122.26(b)(15)—SUMMARY OF COVERAGE OF ‘‘STORM WATER DISCHARGES

ASSOCIATED WITH SMALL CONSTRUCTION ACTIVITY’’ UNDER THE NPDES STORM WATER PROGRAM

Automatic Designation: Required 

Nationwide Coverage.

• Construction activities that result in a land disturbance of equal to or 

greater than one acre and less than five acres. 


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Environmental Protection Agency § 122.26 

EXHIBIT 1 TO § 122.26(b)(15)—SUMMARY OF COVERAGE OF ‘‘STORM WATER DISCHARGES ASSOCIATED WITH SMALL CONSTRUCTION ACTIVITY’’ UNDER THE NPDES STORM WATER PROGRAM— 

Continued 

• 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 

§ 122.26(b)(15)(i).) 

Potential Designation: Optional Evaluation and Designation by the 

NPDES Permitting Authority or 

EPA Regional Administrator.

• Construction activities that result in a land disturbance of less than 

one acre based on the potential for contribution to a violation of a 

water quality standard or for significant contribution of pollutants. 

(see § 122.26(b)(15)(ii).) 

Potential Waiver: Waiver from Requirements as Determined by the 

NPDES Permitting Authority..

Any automatically designated construction activity where the operator 

certifies: (1) A rainfall erosivity factor of less 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 

§ 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 §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 §122.21 as modified and supplemented by the provisions of this 

paragraph. 

(i) Except as provided in §122.26(c)(1) 

(ii)–(iv), the operator of a storm water 

discharge associated with industrial 

activity subject to this section shall 

provide: 


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§ 122.26 40 CFR Ch. I (7–1–15 Edition) 

(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 nonstructural 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 nonstorm 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 §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 §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 

§122.21 (g)(2), (g)(3), (g)(4), (g)(5), 

(g)(7)(iii), (g)(7)(iv), (g)(7)(v), and 

(g)(7)(viii); and 


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Environmental Protection Agency § 122.26 

(G) Operators of new sources or new 

discharges (as defined in §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 §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 §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 §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 


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§ 122.26 40 CFR Ch. I (7–1–15 Edition) 

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 nonstorm 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 


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Environmental Protection Agency § 122.26 

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, 


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§ 122.26 40 CFR Ch. I (7–1–15 Edition) 

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; 


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Environmental Protection Agency § 122.26 

(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 §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 §122.21(c)(7)) for 

BOD5, COD, TSS, dissolved solids, total 

nitrogen, total ammonia plus organic 

nitrogen, total phosphorus, dissolved 

phosphorus, cadmium, copper, lead, 


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§ 122.26 40 CFR Ch. I (7–1–15 Edition) 

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 


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Environmental Protection Agency § 122.26 

(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 nonstorm 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 


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§ 122.26 40 CFR Ch. I (7–1–15 Edition) 

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 §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. 


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Environmental Protection Agency § 122.26 

(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 submitted 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 

§124.52(c) of this chapter), for: 


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§ 122.26 40 CFR Ch. I (7–1–15 Edition) 

(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 

§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 §122.33 must be submitted to the Director by: 

(i) March 10, 2003 if designated under 

§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 §123.35(d)(3) (see 

§122.33(c)(1)); or 

(ii) Within 180 days of notice, unless 

the NPDES permitting authority 

grants a later date, if designated under 

§122.32(a)(2) (see §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 


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Environmental Protection Agency § 122.26 

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 

§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 


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§ 122.26 40 CFR Ch. I (7–1–15 Edition) 

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 

§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 §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 


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Environmental Protection Agency § 122.28 

information, including the possibility 

of fine and imprisonment for knowing 

violations.’’ 

[55 FR 48063, Nov. 16, 1990] 

EDITORIAL NOTE: For FEDERAL REGISTER citations affecting §122.26, see the List of CFR 

Sections Affected, which appears in the 

Finding Aids section of the printed volume 

and at www.fdsys.gov. 

§ 122.27 Silvicultural activities (applicable to State NPDES programs, see 

§ 123.25). 

(a) Permit requirement. Silvicultural 

point sources, as defined in this section, as point sources subject to the 

NPDES permit program. 

(b) Definitions. (1) Silvicultural point 

source means any discernible, confined 

and discrete 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). 

§ 122.28 General permits (applicable to 

State NPDES programs, see 

§ 123.25). 

(a) Coverage. The Director may issue 

a general permit in accordance with 

the following: 

(1) Area. The general permit shall be 

written to cover 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 


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§ 122.28 40 CFR Ch. I (7–1–15 Edition) 

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 §122.44, the sources in that 

specific category or subcategory shall 

be subject to the same water qualitybased 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 

§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 §§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 §122.22. Notices of intent for coverage under a general permit for concentrated animal feeding operations 

must include the information specified 

in §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 


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Environmental Protection Agency § 122.28 

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 §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 

§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 


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§ 122.29 40 CFR Ch. I (7–1–15 Edition) 

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 §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 §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] 

§ 122.29 New sources and new dischargers. 

(a) Definitions. (1) New source and new 

discharger are defined in §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 §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. 


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Environmental Protection Agency § 122.29 

(b) Criteria for new source determination. (1) Except as otherwise provided 

in an applicable new source performance standard, a source is a ‘‘new 

source’’ if it meets the definition of 

‘‘new source’’ in §122.2, and 

(i) It is constructed at a site at which 

no other source is located; or 

(ii) It totally replaces the process or 

production equipment that causes the 

discharge of pollutants at an existing 

source; or 

(iii) Its processes are substantially 

independent of an existing source at 

the same site. In 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 §122.2. 

(3) Construction on a site at which an 

existing source is located results in a 

modification subject to §122.62 rather 

than a new source (or a new discharger) 

if the construction does not create a 

new building, structure, facility, or installation meeting the criteria of paragraph (b)(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 §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 §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 


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§ 122.30 40 CFR Ch. I (7–1–15 Edition) 

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 §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 §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] 

§ 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 


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Environmental Protection Agency § 122.32 

Elimination System (NPDES) Program, you should also refer to §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] 

§ 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 

§§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 §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 §§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 

§§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] 

§ 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 

§§123.35(b)(3) and (b)(4) of this chapter, 

or is based upon a petition under 

§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 §§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 

§122.33(a) if circumstances change. (See 

also §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 


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§ 122.33 40 CFR Ch. I (7–1–15 Edition) 

of a physically interconnected MS4 

that is regulated by the NPDES storm 

water program (see §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] 

§ 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 §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 §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 §122.34, you must submit an application to your NPDES permitting 

authority that includes the information required under §§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 §122.34(b)(3)(i) will satisfy the 

map requirement in §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 §122.34, you will need to comply 

with the permit application requirements of §122.26(d). You must submit 

both Parts of the application requirements in §§122.26(d)(1) and (2) by March 

10, 2003. You do not need to submit the 

information required by 

§§122.26(d)(1)(ii) and (d)(2) regarding 


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Environmental Protection Agency § 122.34 

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 §122.26, rather than the 

requirements of §122.34. You do not 

need to comply with the specific application requirements of §122.26(d)(1)(iii) 

and (iv) and (d)(2)(iii) (discharge characterization). You may satisfy the requirements in §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 §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 §123.35(d)(3) of this 

chapter. 

(2) Designated under §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] 

§ 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 §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 §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 


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§ 122.34 40 CFR Ch. I (7–1–15 Edition) 

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 §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, 


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Environmental Protection Agency § 122.34 

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 nonstorm 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 

§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 noncompliance. 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 §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). 


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§ 122.34 40 CFR Ch. I (7–1–15 Edition) 

Also see §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. 


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Environmental Protection Agency § 122.34 

(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 nonstructural 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 


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§ 122.35 40 CFR Ch. I (7–1–15 Edition) 

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 §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 

§§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 §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 

§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] 

§ 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 §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 

§122.34(g)(3), you must note that fact in 

your NOI, but you are not required to 

file the periodic reports. You remain 


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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 §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] 

§ 122.36 As an operator of a regulated 

small MS4, what happens if I don’t 

comply with the application or permit requirements in §§ 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 §122.35(b). 

[64 FR 68847, Dec. 8, 1999] 

§ 122.37 Will the small MS4 storm 

water program regulations at 

§§ 122.32 through 122.36 and § 123.35 

of this chapter change in the future? 

EPA will evaluate the small MS4 regulations at §§122.32 through 122.36 and 

§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 

§ 122.41 Conditions applicable to all 

permits (applicable to State programs, see § 123.25). 

The following conditions apply to all 

NPDES permits. Additional conditions 

applicable to NPDES permits are in 

§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 


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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 


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of this permit. Proper operation and 

maintenance also includes adequate 

laboratory controls and appropriate 

quality assurance procedures. This provision requires the operation of backup 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. 


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§ 122.41 40 CFR Ch. I (7–1–15 Edition) 

(k) Signatory requirement. (1) All applications, reports, or information submitted to the Director shall be signed 

and certified. (See §122.22) 

(2) The CWA provides that any person 

who knowingly makes any false statement, 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 §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 

§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 §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. 


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Environmental Protection Agency § 122.41 

(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 §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 §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 


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§ 122.42 40 CFR Ch. I (7–1–15 Edition) 

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] 

§ 122.42 Additional conditions applicable to specified categories of 

NPDES permits (applicable to State 

NPDES programs, see § 123.25). 

The following conditions, in addition 

to those set forth in §122.41, apply to 

all NPDES permits within the categories specified below: 

(a) Existing manufacturing, commercial, 

mining, and silvicultural dischargers. In 

addition to the reporting requirements 

under §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 μg/l); 

(ii) Two hundred micrograms per 

liter (200 μg/l) for acrolein and acrylonitrile; five hundred micrograms per 

liter (500 μg/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 §122.21(g)(7); or 

(iv) The level established by the Director in accordance with §122.44(f). 

(2) That any activity has occurred or 

will occur which would result in any 

discharge, on a non-routine or infrequent basis, of a toxic pollutant which 

is not limited in the permit, if that discharge will exceed the highest of the 

following ‘‘notification levels’’: 

(i) Five hundred micrograms per liter 

(500 μg/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 §122.21(g)(7). 

(iv) The level established by the Director in accordance with §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 


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system or a municipal separate storm 

sewer that has been designated by the 

Director under §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 §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 §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 §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 


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record keeping requirements as specified in §412.37(b) and (c) and §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 


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Environmental Protection Agency § 122.42 

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 


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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 multiyear 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. 


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Environmental Protection Agency § 122.43 

(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 fieldspecific 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] 

§ 122.43 Establishing permit conditions 

(applicable to State programs, see 

§ 123.25). 

(a) In addition to conditions required 

in all permits (§§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 §§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 


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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 

§122.62. 

(2) New or reissued permits, and to 

the extent allowed under §122.62 modified or revoked and reissued permits, 

shall incorporate each of the applicable 

requirements referenced in §§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] 

§ 122.44 Establishing limitations, 

standards, and other permit conditions (applicable to State NPDES 

programs, see § 123.25). 

In addition to the conditions established under §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 §125.3 of this chapter. 

For new sources or new dischargers, 

these technology based limitations and 

standards are subject to the provisions 

of §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 §122.41(a). 


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Environmental Protection Agency § 122.44 

(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 ‘‘sludgeonly 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 


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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 §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 qualitybased 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 §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) 


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Environmental Protection Agency § 122.44 

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 

§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 §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 

§122.21(g)(7) or in a notification under 

§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 §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 §125.3(c). 

(f) Notification level. A ‘‘notification 

level’’ which exceeds the notification 

level of §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 

§125.3(c) 

(g) Twenty-four hour reporting. Pollutants for which the permittee must report violations of maximum daily discharge limitations under 

§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 §122.46. 

(i) Monitoring requirements. In addition to §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 §122.45(i); pollutants in intake water for net limitations under §122.45(f); frequency, rate 

of discharge, etc., for noncontinuous 

discharges under §122.45(e); pollutants 

subject to notification requirements 

under §122.42(a); and pollutants in sewage sludge or other monitoring as specified in 40 CFR part 503; or as determined to be necessary on a case-bycase basis pursuant to section 405(d)(4) 

of the CWA. 

(iv) According to sufficiently sensitive test procedures (i.e., methods) 

approved under 40 CFR part 136 for the 

analysis of pollutants or pollutant parameters or required under 40 CFR 

chapter I, subchapter N or O. 


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§ 122.44 40 CFR Ch. I (7–1–15 Edition) 

(A) For the purposes of this paragraph, a method is ‘‘sufficiently sensitive’’ when: 

(1) The method minimum level (ML) 

is at or below the level of the effluent 

limit established in the permit for the 

measured pollutant or pollutant parameter; or 

(2) The method has the lowest ML of 

the analytical methods approved under 

40 CFR part 136 or required under 40 

CFR chapter I, subchapter N or O for 

the measured pollutant or pollutant 

parameter. 

NOTE TO PARAGRAPH (i)(1)(IV)(a): Consistent 

with 40 CFR part 136, applicants or permittees have the option of providing matrix or 

sample specific minimum levels rather than 

the published levels. Further, where an applicant or permittee can demonstrate that, 

despite a good faith effort to use a method 

that would otherwise meet the definition of 

‘‘sufficiently sensitive’’, the analytical results are not consistent with the QA/QC specifications for that method, then the Director 

may determine that the method is not performing adequately and the Director should 

select a different method from the remaining 

EPA-approved methods that is sufficiently 

sensitive consistent with 40 CFR 

122.44(i)(1)(iv)(A). Where no other EPA-approved methods exist, the Director should select a method consistent with 40 CFR 

122.44(i)(1)(iv)(B). 

(B) In the case of pollutants or pollutant parameters for which there are 

no approved methods under 40 CFR 

part 136 or methods are not otherwise 

required under 40 CFR chapter I, subchapter N or O, monitoring shall be 

conducted according to a test procedure specified in the permit for such 

pollutants or pollutant parameters. 

(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 §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 

§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 


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Environmental Protection Agency § 122.44 

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 ‘‘sludgeonly 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; 

(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 §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 


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§ 122.44 40 CFR Ch. I (7–1–15 Edition) 

which justify the application of a less 

stringent effluent limitation; 

(B)(1) Information is available which 

was not available at the time of permit 

issuance (other than revised regulations, guidance, or test methods) and 

which would have justified the application of a less stringent effluent limitation at the time of permit issuance; or 

(2) The Administrator determines 

that technical mistakes or mistaken 

interpretations of law were made in 

issuing the permit under section 

402(a)(1)(b); 

(C) A less stringent effluent limitation is necessary because of events over 

which the permittee has no control and 

for which there is no reasonably available remedy; 

(D) The permittee has received a permit modification under section 301(c), 

301(g), 301(h), 301(i), 301(k), 301(n), or 

316(a); or 

(E) The permittee has installed the 

treatment facilities required to meet 

the effluent limitations in the previous 

permit and has properly operated and 

maintained the facilities but has nevertheless been unable to achieve the 

previous effluent limitations, in which 

case the limitations in the reviewed, 

reissued, or modified permit may reflect the level of pollutant control actually achieved (but shall not be less 

stringent than required by effluent 

guidelines in effect at the time of permit renewal, reissuance, or modification). 

(ii) Limitations. In no event may a 

permit with respect to which paragraph (l)(2) of this section applies be 

renewed, reissued, or modified to contain an effluent limitation which is 

less stringent than required by effluent 

guidelines in effect at the time the permit is renewed, reissued, or modified. 

In no event may such a permit to discharge into waters be renewed, issued, 

or modified to contain a less stringent 

effluent limitation if the implementation of such limitation would result in 

a violation of a water quality standard 

under section 303 applicable to such 

waters. 

(m) Privately owned treatment works. 

For a privately owned treatment 

works, any conditions expressly applicable to any user, as a limited co-permittee, that may be necessary in the 

permit issued to the treatment works 

to ensure compliance with applicable 

requirements under this part. Alternatively, the Director may issue separate permits to the treatment works 

and to its users, or may require a separate permit application from any user. 

The Director’s decision to issue a permit with no conditions applicable to 

any user, to impose conditions on one 

or more users, to issue separate permits, or to require separate applications, and the basis for that decision, 

shall be stated in the fact sheet for the 

draft permit for the treatment works. 

(n) Grants. Any conditions imposed in 

grants made by the Administrator to 

POTWs under sections 201 and 204 of 

CWA which are reasonably necessary 

for the achievement of effluent limitations under section 301 of CWA. 

(o) Sewage sludge. Requirements 

under section 405 of CWA governing the 

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 §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 

§122.26(b)(15), the Director may include 

permit conditions that incorporate 


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Environmental Protection Agency § 122.45 

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 nonstorm water discharges); and 

(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 

§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 technologybased 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] 

EDITORIAL NOTE: For FEDERAL REGISTER citations affecting §122.44, see the List of CFR 

Sections Affected, which appears in the 

Finding Aids section of the printed volume 

and at www.fdsys.gov. 

§ 122.45 Calculating NPDES permit 

conditions (applicable to State 

NPDES programs, see § 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 §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. 


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§ 122.45 40 CFR Ch. I (7–1–15 Edition) 

(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 

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 §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 §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 

§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. 


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Environmental Protection Agency § 122.46 

(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, technologybased 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 

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 §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 §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 §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] 

§ 122.46 Duration of permits (applicable to State programs, see § 123.25). 

(a) NPDES permits shall be effective 

for a fixed term not to exceed 5 years. 

(b) Except as provided in §122.6, the 

term of a permit shall not be extended 

by modification 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 


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§ 122.47 40 CFR Ch. I (7–1–15 Edition) 

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] 

§ 122.47 Schedules of compliance. 

(a) General (applicable to State programs, see §123.25). The permit may, 

when appropriate, specify a schedule of 

compliance leading to 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 

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; 


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Environmental Protection Agency § 122.49 

(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] 

§ 122.48 Requirements for recording 

and reporting of monitoring results 

(applicable to State programs, see 

§ 123.25). 

All permits shall specify: 

(a) Requirements concerning the 

proper use, maintenance, and installation, when appropriate, of monitoring 

equipment or methods (including 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 §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] 

§ 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 


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§ 122.50 40 CFR Ch. I (7–1–15 Edition) 

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 §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] 

§ 122.50 Disposal of pollutants into 

wells, into publicly owned treatment works or by land application 

(applicable to State NPDES programs, see § 123.25). 

(a) When part of a discharger’s process wastewater is not being discharged 

into waters of the United States or 

contiguous zone because it is disposed 

into a well, into a POTW, or by land 

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: 

P E N

T = ×

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 §§122.41, 122.42, 122.43, 

and 122.44. 

[48 FR 14153, Apr. 1, 1983, as amended at 49 

FR 38050, Sept. 26, 1984] 


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Environmental Protection Agency § 122.62 

Subpart D—Transfer, Modification, 

Revocation and Reissuance, 

and Termination of Permits 

§ 122.61 Transfer of permits (applicable to State programs, see § 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 

§122.62(b)(2)), or a minor modification 

made (under §122.63(d)), to identify the 

new permittee and incorporate such 

other requirements as may be necessary under CWA. 

(b) Automatic transfers. As an alternative to transfers under paragraph (a) 

of this section, any NPDES permit may 

be automatically transferred to a new 

permittee if: 

(1) The current permittee notifies the 

Director at least 30 days in advance of 

the proposed transfer date in paragraph 

(b)(2) of this section; 

(2) The notice includes a written 

agreement 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 §122.63. If this notice is 

not received, the transfer is effective 

on the date specified in the agreement 

mentioned in paragraph (b)(2) of this 

section. 

§ 122.62 Modification or revocation 

and reissuance of permits (applicable to State programs, see § 123.25). 

When the Director receives any information (for example, inspects the facility, receives information submitted by 

the permittee as required in the permit 

(see §122.41), receives a request for 

modification or revocation and 

reissuance under §124.5, or conducts a 

review of the permit file) he or she may 

determine whether or not one or more 

of the causes listed in 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 §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 

§124.5(c)(2). If cause does not exist 

under this section or §122.63, the Director shall not modify or revoke and reissue the permit. If a permit modification satisfies the criteria in §122.63 for 

‘‘minor modifications’’ the permit may 

be modified without a draft permit or 

public review. Otherwise, a draft permit must be prepared and other procedures in part 124 (or procedures of an 

approved State program) 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 

§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 (§122.28) this cause includes any 

information indicating that cumulative effects on the environment are 

unacceptable. For new source or new 

discharger NPDES permits §§122.21, 

122.29), this cause shall include any significant information derived from effluent testing required under 

§122.21(k)(5)(vi) or §122.21(h)(4)(iii) after 

issuance of the permit. 


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§ 122.62 40 CFR Ch. I (7–1–15 Edition) 

(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 §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 §124.5 within 

ninety (90) days of judicial remand. 

(iii) For changes based upon modified 

State certifications of NPDES permits, 

see §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 §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 

§122.21 or §125.27(a). 

(6) 307(a) toxics. When required to incorporate an applicable 307(a) toxic effluent standard or prohibition (see 

§122.44(b)). 

(7) Reopener. When required by the 

‘‘reopener’’ conditions in a permit, 

which are established in the permit 

under §122.44(b) (for CWA toxic effluent 

limitations and Standards for sewage 

sludge use or disposal, see also 

§122.44(c)) or 40 CFR 403.18(e) 

(Pretreatment program). 

(8)(i) Net limits. Upon request of a permittee who qualifies for effluent limitations on a net basis under §122.45(g). 

(ii) When a discharger is no longer eligible for net limitations, as provided 

in §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 §125.3(c). 

(12) Notification levels. To establish a 

‘‘notification level’’ as provided in 

§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. 


Lhorne on DSK5TPTVN1PROD with CFR
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Environmental Protection Agency § 122.63 

(14) For a small MS4, to include an 

effluent limitation requiring implementation of a minimum control measure or measures as specified in 

§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 §§122.23(h) and 122.28 is not a cause 

for modification pursuant to the requirements of this section. 

(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 §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 

§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 

(§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] 

§ 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 §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 

§122.29. 


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§ 122.64 40 CFR Ch. I (7–1–15 Edition) 

(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 §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] 

§ 122.64 Termination of permits (applicable to State programs, see 

§ 123.25). 

(a) The following are causes for terminating a permit during its term, or 

for denying a permit renewal application: 

(1) Noncompliance by the permittee 

with any condition of the permit; 

(2) The permittee’s failure in the application or during the permit issuance 

process to disclose fully all relevant 

facts, or the permittee’s misrepresentation of any relevant facts at any time; 

(3) A determination that the permitted activity endangers human 

health or the environment and can 

only be regulated to acceptable levels 

by permit modification or termination; 

or 

(4) A change in any condition that requires either a temporary or permanent reduction or elimination of any 

discharge or sludge use or disposal 

practice controlled by the permit (for 

example, plant closure or termination 

of discharge by connection to a POTW). 

(b) The Director shall follow the applicable procedures in part 124 or 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] 

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 §§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 


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Environmental Protection Agency Pt. 122, App. D 

Pesticides 

Petroleum refining 

Pharmaceutical preparations 

Photographic equipment and supplies 

Plastics processing 

Plastic and synthetic materials manufacturing 

Porcelain enameling 

Printing and publishing 

Pulp and paper mills 

Rubber processing 

Soap and detergent manufacturing 

Steam electric power plants 

Textile mills 

Timber products processing 

APPENDIX B TO PART 122 [RESERVED] 

APPENDIX C TO PART 122—CRITERIA FOR

DETERMINING A CONCENTRATED

AQUATIC ANIMAL PRODUCTION FACILITY (§122.24) 

A hatchery, fish farm, or other facility is a 

concentrated aquatic animal production facility for purposes of §122.24 if it contains, 

grows, or holds aquatic animals in either of 

the following categories: 

(a) Cold water fish species or other cold 

water aquatic animals in ponds, raceways, or 

other similar structures which discharge at 

least 30 days per year but does not include: 

(1) Facilities which produce less than 9,090 

harvest weight kilograms (approximately 

20,000 pounds) of aquatic animals per year; 

and 

(2) Facilities which feed less than 2,272 

kilograms (approximately 5,000 pounds) of 

food during the calendar month of maximum 

feeding. 

(b) Warm water fish species or other warm 

water aquatic animals in ponds, raceways, or 

other similar structures which discharge at 

least 30 days per year, but does not include: 

(1) Closed ponds which discharge only during periods of excess runoff; or 

(2) Facilities which produce less than 45,454 

harvest weight kilograms (approximately 

100,000 pounds) of aquatic animals per year. 

‘‘Cold water aquatic animals’’ include, but 

are not limited to, the Salmonidae family of 

fish; e.g., trout and salmon. 

‘‘Warm water aquatic animals’’ include, 

but are not limited to, the Ameiuride, 

Centrarchidae and Cyprinidae families of fish; 

e.g., respectively, catfish, sunfish and minnows. 

APPENDIX D TO PART 122—NPDES PERMIT APPLICATION TESTING REQUIREMENTS (§122.21) 

TABLE I—TESTING REQUIREMENTS FOR ORGANIC TOXIC POLLUTANTS BY INDUSTRIAL

CATEGORY FOR EXISTING DISCHARGERS

Industrial category 

GC/MS Fraction 1

Volatile Acid Base/ 

neutral 

Pesticide 

Adhesives and 

Sealants ................. 222

Aluminum Forming .... 222

Auto and Other Laundries ....................... 2222

Battery Manufacturing 2 2

Coal Mining ............... 2222

Coil Coating ............... 222

Copper Forming ........ 222

Electric and Electronic 

Components ........... 2222

Electroplating ............. 222

Explosives Manufacturing ...................... 2 2

Foundries ................... 222

Gum and Wood 

Chemicals .............. 2222

Inorganic Chemicals 

Manufacturing ........ 222

Iron and Steel Manufacturing ................. 222

Leather Tanning and 

Finishing ................. 2222

Mechanical Products 

Manufacturing ........ 222

Nonferrous Metals 

Manufacturing ........ 2222

Ore Mining ................. 2222

Organic Chemicals 

Manufacturing ........ 2222

Paint and Ink Formulation ...................... 2222

Pesticides .................. 2222

Petroleum Refining .... 2222

Pharmaceutical Preparations .................. 222

Photographic Equipment and Supplies 2222

Plastic and Synthetic 

Materials Manufacturing ...................... 2222

Plastic Processing ..... 2

Porcelain Enameling 2 22

Printing and Publishing ..................... 2222

Pulp and Paper Mills 2222

Rubber Processing .... 222

Soap and Detergent 

Manufacturing ........ 222

Steam Electric Power 

Plants ..................... 222

Textile Mills ................ 2222

Timber Products 

Processing ............. 2222

1The toxic pollutants in each fraction are listed in Table II. 

2Testing required. 


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Pt. 122, App. D 40 CFR Ch. I (7–1–15 Edition) 

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 

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 


Lhorne on DSK5TPTVN1PROD with CFR
285 

Environmental Protection Agency Pt. 122, App. D 

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 

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 

§122.21(g)(7)(ii)(A) and Table I of Appendix D 

as they apply to certain industrial categories. The suspensions are as follows: 


Lhorne on DSK5TPTVN1PROD with CFR
286 

Pt. 122, App. D 40 CFR Ch. I (7–1–15 Edition) 

*Editorial Note: The words ‘‘This revision’’ 

refer to the document published at 48 FR 

14153, Apr. 1, 1983. 

a. At 46 FR 2046, Jan. 8, 1981, the Environmental Protection Agency suspended until 

further notice §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 §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 §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 

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.]* 

For the duration of the suspensions, therefore, Table I effectively reads: 

TABLE I—TESTING REQUIREMENTS FOR ORGANIC TOXIC POLLUTANTS BY INDUSTRY CATEGORY

Industry category 

GC/MS fraction 2

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 D and F) .... (1) (1)

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 and precious metals/Subpart B) ................ (1)

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 supplies ................... (1) (1) (1)

Plastic and synthetic materials manufacturing ........ (1) (1) (1) (1)

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)


Lhorne on DSK5TPTVN1PROD with CFR
287 

Environmental Protection Agency Pt. 122, App. E 

TABLE I—TESTING REQUIREMENTS FOR ORGANIC TOXIC POLLUTANTS BY INDUSTRY CATEGORY—Continued 

Industry category 

GC/MS fraction 2

Volatile Acid Neutral Pesticide 

Steam electric power 

plants ............................. (1) (1)

Textile mills (Subpart C— 

Greige Mills are exempt 

from this table) ............... (1) (1) (1)

Timber products processing ............................. (1) (1) (1) (1)

1Testing required. 

2The pollutants in each fraction are listed in Item V-C. 

3Pulp and Paperboard Mills: 

Subpart 3

GS/MS fractions 

VOA Acid 

Base/ 

neutral 

Pesticides 

A ......................... 2 (1) 2 (1)

B ......................... 2 (1) 2 2

C ......................... 2 (1) 2 2

D ......................... 2 (1) 2 2

Subpart 3

GS/MS fractions 

VOA Acid 

Base/ 

neutral 

Pesticides 

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. 

3Subparts are defined in 40 CFR Part 430. 

[48 FR 14153, Apr. 1, 1983, as amended at 49 

FR 38050, Sept. 26, 1984; 50 FR 6940, Feb. 19, 

1985] 

APPENDIX E TO PART 122—RAINFALL ZONES OF THE UNITED STATES

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] 


Lhorne on DSK5TPTVN1PROD with CFREC01MR92.016</GPH>
288 

Pt. 122, App. F 40 CFR Ch. I (7–1–15 Edition) 

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. 

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] 

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. 


Lhorne on DSK5TPTVN1PROD with CFR
289 

Environmental Protection Agency Pt. 122, App. I 

State Incorporated place 

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] 

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

State County 

Unincorporated urbanized population 

California ................... Los Angeles ............. 886,780 

Sacramento .............. 594,889 

State County 

Unincorporated urbanized population 

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] 

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

State County 

Unincorporated urbanized pop- ulation 

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 


Lhorne on DSK5TPTVN1PROD with CFR
290 

Pt. 122, App. J 40 CFR Ch. I (7–1–15 Edition) 

State County 

Unincorporated urbanized population 

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] 

APPENDIX J TO PART 122—NPDES PERMIT TESTING REQUIREMENTS FOR

PUBLICLY OWNED TREATMENT

WORKS (§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 

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 


Lhorne on DSK5TPTVN1PROD with CFR
291 

Environmental Protection Agency § 123.1 

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 

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? 

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 

§ 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 


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§ 123.2 40 CFR Ch. I (7–1–15 Edition) 

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 

§123.23(b) for activities within the 

scope of the newly approved program. 

The authorized State will retain jurisdiction over its existing permits as described in paragraph (d)(1) of this section absent a different arrangement 

stated in the Memorandum of Agreement executed between EPA and the 

Tribe. 

(e) Upon submission of a complete 

program, EPA will conduct a public 

hearing, if interest is shown, and determine whether to approve or disapprove 

the program taking into consideration 

the requirements of this part, the CWA 

and any comments received. 

(f) Any State program approved by 

the Administrator shall at all times be 

conducted in accordance with the requirements of this part. 

(g)(1) Except as may be authorized 

pursuant to paragraph (g)(2) of this section or excluded by §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 §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] 

§ 123.2 Definitions. 

The definitions in part 122 apply to 

all subparts of this part. 

[63 FR 45122, Aug. 24, 1998] 


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Environmental Protection Agency § 123.22 

§ 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 §124.4. 

Subpart B—State Program 

Submissions 

§ 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 §123.33(b), the Tribal authority exercising powers substantially similar to those of a State Governor) requesting program approval; 

(2) A complete program description, 

as required by §123.22, describing how 

the State intends to carry out its responsibilities under this part; 

(3) An Attorney General’s statement 

as required by §123.23; 

(4) A Memorandum of Agreement 

with the Regional Administrator as required by §123.24; 

(5) Copies of all applicable State statutes and regulations, including those 

governing State administrative procedures; 

(b)(1) Within 30 days of receipt by 

EPA of a State program submission, 

EPA will notify the State whether its 

submission is complete. If EPA finds 

that a State’s submission is complete, 

the statutory review period (i.e., the 

period of time allotted for formal EPA 

review of a proposed State program 

under CWA) shall be deemed to have 

begun on the date of receipt of the 

State’s submission. If EPA finds that a 

State’s submission is incomplete, the 

statutory review period shall not begin 

until all the necessary information is 

received by EPA. 

(2) In the case of an Indian Tribe eligible under §123.33(b), EPA shall take 

into consideration the contents of the 

Tribe’s request submitted under 

§123.32, in determining if the program 

submission required by §123.21(a) is 

complete. 

(c) If the State’s submission is materially changed during the statutory review period, the statutory review period shall begin again upon 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] 

§ 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 


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§ 123.23 40 CFR Ch. I (7–1–15 Edition) 

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 §123.33(b), if a State has been 

authorized by EPA to issue permits on 

the Federal Indian reservation in accordance with §123.23(b), a description 

of how responsibility for pending permit applications, existing permits, and 

supporting files will be transferred 

from the State to the eligible Indian 

Tribe. To the maximum extent practicable, this should include a Memorandum of Agreement negotiated between the State and the Indian Tribe 

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] 

§ 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 §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 §122.28. 

[48 FR 14178, Apr. 1, 1983, as amended at 58 

FR 67981, Dec. 22, 1993] 

§ 123.24 Memorandum of Agreement 

with the Regional Administrator. 

(a) Any State that seeks to administer a program under this part shall 

submit a Memorandum of Agreement. 

The Memorandum of Agreement shall 

be executed by the State Director and 

the Regional Administrator and shall 

become effective when approved by the 

Administrator. In addition to meeting 

the requirements of paragraph (b) of 

this section, the Memorandum of 


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Environmental Protection Agency § 123.24 

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 §123.23(b) on the Federal Indian reservation of the Indian Tribe 

seeking program approval, provisions 

describing how the transfer of pending 

permit applications, permits, and any 

other information relevant to the program operation not already in the possession of the Indian Tribe (support 

files for permit issuance, compliance 

reports, etc.) will be accomplished. 

(2) Provisions specifying classes and 

categories of permit applications, draft 

permits, and proposed permits that the 

State will send to the Regional Administrator for review, comment and, 

where applicable, objection. 

(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 §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 §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 


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§ 123.25 40 CFR Ch. I (7–1–15 Edition) 

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 §122.28); 

(4) Discharges from publicly owned 

treatment works with a daily average 

discharge exceeding 1 million gallons 

per day; 

(5) Discharges of uncontaminated 

cooling water with a daily average discharge exceeding 500 million gallons 

per day; 

(6) Discharges from any major discharger or from any discharger within 

any of the 21 industrial categories listed in appendix A to part 122; 

(7) Discharges from other sources 

with a daily average discharge exceeding 0.5 (one-half) million gallons per 

day, except that EPA review of permits 

for discharges of non-process wastewater may be waived regardless of 

flow. 

(e) Whenever a waiver is granted 

under paragraph (d) of this section, the 

Memorandum of Agreement shall contain: 

(1) A statement that the Regional 

Administrator retains the right to terminate the waiver as to future permit 

actions, in whole or in part, at any 

time by sending the State Director 

written notice of termination; and 

(2) A statement that the State shall 

supply EPA with copies of final permits. 

[48 FR 14178, Apr. 1, 1983; 50 FR 6941, Feb. 19, 

1985, as amended at 54 FR 18784, May 2, 1989; 

58 FR 67981, Dec. 22, 1993; 63 FR 45122, Aug. 24, 

1998] 

§ 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) §122.4—(Prohibitions): 

(2) §122.5(a) and (b)—(Effect of permit); 

(3) §122.7(b) and (c)—(Confidential information); 

(4) §122.21 (a)-(b), (c)(2), (e)-(k), (m)- 

(p), (q), and (r)—(Application for a permit); 

(5) §122.22—(Signatories); 

(6) §122.23—(Concentrated animal 

feeding operations); 

(7) §122.24—(Concentrated aquatic 

animal production facilities); 

(8) §122.25—(Aquaculture projects); 

(9) §122.26—(Storm water discharges); 

(10) §122.27—(Silviculture); 

(11) §122.28—(General permits), Provided that States which do not seek to 

implement the general permit program 

under §122.28 need not do so. 

(12) §122.41 (a)(1) and (b) through (n)— 

(Applicable permit conditions) (Indian 

Tribes can satisfy enforcement authority requirements under §123.34); 

(13) §122.42—(Conditions applicable to 

specified categories of permits); 

(14) §122.43—(Establishing permit 

conditions); 

(15) §122.44—(Establishing NPDES 

permit conditions); 

(16) §122.45—(Calculating permit conditions); 

(17) §122.46—(Duration); 

(18) §122.47(a)—(Schedules of compliance); 

(19) §122.48—(Monitoring requirements); 

(20) §122.50—(Disposal into wells); 

(21) §122.61—(Permit transfer); 

(22) §122.62—(Permit modification); 

(23) §122.64—(Permit termination); 

(24) §124.3(a)—(Application for a permit); 

(25) §124.5 (a), (c), (d), and (f)—(Modification of permits); 

(26) §124.6 (a), (c), (d), and (e)—(Draft 

permit); 

(27) §124.8—(Fact sheets); 

(28) §124.10 (a)(1)(ii), (a)(1)(iii), 

(a)(1)(v), (b), (c), (d), and (e)—(Public 

notice); 

(29) §124.11—(Public comments and 

requests for hearings); 

(30) §124.12(a)—(Public hearings); and 

(31) §124.17 (a) and (c)—(Response to 

comments); 

(32) §124.56—(Fact sheets); 


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Environmental Protection Agency § 123.25 

(33) §124.57(a)—(Public notice); 

(34) §124.59—(Comments from government agencies); 

(35) §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) §122.30 (What are the objectives 

of the storm water regulations for 

small MS4s?); 

(40) §122.31 (For Indian Tribes only) 

(As a Tribe, what is my role under the 

NPDES storm water program?); 

(41) §122.32 (As an operator of a small 

MS4, am I regulated under the NPDES 

storm water program?); 

(42) §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) §122.34 (As an operator of a regulated small MS4, what will my NPDES 

MS4 storm water permit require?); 

(44) §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) §122.36 (As an operator of a regulated small MS4, what happens if I 

don’t comply with the application or 

permit requirements in §§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. 

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, 

§122.5(d) (continuation of permits) and §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 

§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 §123.25, see the List of CFR 

Sections Affected, which appears in the 

Finding Aids section of the printed volume 

and at www.fdsys.gov. 


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§ 123.26 40 CFR Ch. I (7–1–15 Edition) 

§ 123.26 Requirements for compliance 

evaluation programs. 

(a) State programs shall have procedures for receipt, evaluation, retention 

and investigation for possible enforcement of all notices and reports required of permittees and other regulated persons (and for investigation for 

possible enforcement of failure to submit these notices and reports). 

(b) State programs shall have inspection and surveillance procedures to determine, independent of information 

supplied by regulated persons, compliance or noncompliance with applicable 

program requirements. The State shall 

maintain: 

(1) A program which is capable of 

making comprehensive surveys of all 

facilities and activities subject to the 

State Director’s authority to identify 

persons subject to regulation who have 

failed to comply with permit application or other program requirements. 

Any compilation, index or inventory of 

such facilities and activities shall be 

made available to the Regional Administrator upon request; 

(2) A program for periodic inspections 

of the facilities and activities subject 

to regulation. These inspections shall 

be conducted in a manner designed to: 

(i) Determine compliance or noncompliance with issued permit conditions and other program requirements; 

(ii) Verify the accuracy of information submitted by permittees and other 

regulated persons in reporting forms 

and other forms supplying monitoring 

data; and 

(iii) Verify the adequacy of sampling, 

monitoring, and other methods used by 

permittees and other regulated persons 

to develop that information; 

(3) A program for investigating information obtained regarding violations 

of applicable program and permit requirements; and 

(4) Procedures for receiving and ensuring proper consideration of information submitted by the Public about violations. Public effort in reporting violations shall be encouraged, and the 

State Director shall make available information on reporting procedures. 

(c) The State Director and State officers engaged in compliance evaluation 

shall have authority to enter any site 

or premises subject to regulation or in 

which records relevant to program operation are kept in order to copy any 

records, inspect, monitor or otherwise 

investigate compliance with the State 

program including compliance with 

permit conditions and other program 

requirements. States whose law requires a search warrant before entry 

conform with this requirement. 

(d) Investigatory inspections shall be 

conducted, samples shall be taken and 

other information shall be gathered in 

a manner (e.g., using proper ‘‘chain of 

custody’’ procedures) that will produce 

evidence admissible in an enforcement 

proceeding or in court. 

(e) State NPDES compliance evaluation programs shall have procedures 

and ability for: 

(1) Maintaining a comprehensive inventory of all sources covered by 

NPDES permits and a schedule of reports required to be submitted by permittees to the State agency; 

(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] 

§ 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; 


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Environmental Protection Agency § 123.27 

NOTE: This paragraph (a)(1) requires that 

States have a mechanism (e.g., an administrative cease and desist order or the ability 

to seek a temporary restraining order) to 

stop any unauthorized activity endangering 

public health or the environment. 

(2) To sue in courts of competent jurisdiction to enjoin any threatened or 

continuing violation of any program 

requirement, including permit conditions, without the necessity of a prior 

revocation of the permit; 

(3) To assess or sue to recover in 

court civil penalties and to seek criminal remedies, including fines, as follows: 

(i) Civil penalties shall be recoverable for the violation of any NPDES 

permit condition; any NPDES filing requirement; any duty to allow or carry 

out inspection, entry or monitoring activities; or, any regulation or orders 

issued by the State Director. These 

penalties shall be assessable in at least 

the amount of $5,000 a day for each violation. 

(ii) Criminal fines shall be recoverable against any person who willfully 

or negligently violates any applicable 

standards or limitations; any NPDES 

permit condition; or any NPDES filing 

requirement. These fines shall be assessable in at least the amount of 

$10,000 a day for each violation. 

NOTE: States which provide the criminal 

remedies based on ‘‘criminal negligence,’’ 

‘‘gross negligence’’ or strict liability satisfy 

the requirement of paragraph (a)(3)(ii) of this 

section. 

(iii) Criminal fines shall be recoverable against any person who knowingly 

makes any false statement, representation or certification in any NPDES 

form, in any notice or report required 

by an NPDES permit, or who knowingly renders inaccurate any monitoring device or method required to be 

maintained by the Director. These 

fines shall be recoverable in at least 

the amount of $5,000 for each instance 

of violation. 

NOTE: In many States the State Director 

will be represented in State courts by the 

State Attorney General or other appropriate 

legal officer. Although the State Director 

need not appear in court actions he or she 

should have power to request that any of the 

above actions be brought. 

(b)(1) The maximum civil penalty or 

criminal fine (as provided in paragraph 

(a)(3) of this section) shall be assessable for each instance of violation and, 

if the violation is continuous, shall be 

assessable up to the maximum amount 

for each day of violation. 

(2) The burden of proof and degree of 

knowledge or intent required under 

State law for establishing violations 

under paragraph (a)(3) of this section, 

shall be no greater than the burden of 

proof or degree of knowledge or intent 

EPA must provide when it brings an 

action under the appropriate Act; 

NOTE: For example, this requirement is not 

met if State law includes mental state as an 

element of proof for civil violations. 

(c) A civil penalty assessed, sought, 

or agreed upon by the State Director 

under paragraph (a)(3) of this section 

shall be appropriate to the violation. 

NOTE: To the extent that State judgments 

or settlements provide penalties in amounts 

which EPA believes to be substantially inadequate in comparison to the amounts which 

EPA would require under similar facts, EPA, 

when authorized by the applicable statute, 

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 


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§ 123.28 40 CFR Ch. I (7–1–15 Edition) 

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 §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 §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] 

§ 123.28 Control of disposal of pollutants into wells. 

State law must provide authority to 

issue permits to control the disposal of 

pollutants into wells. Such authority 

shall enable the State to protect the 

public health and welfare and to prevent the pollution of ground and surface waters by prohibiting well discharges or by issuing permits for such 

discharges with appropriate permit 

terms and conditions. A program approved under section 1422 of SDWA satisfies the requirements of this section. 

NOTE: States which are authorized to administer the NPDES permit program under 

section 402 of CWA are encouraged to rely on 

existing statutory authority, to the extent 

possible, in developing a State UIC program 

under section 1422 of SDWA. Section 

402(b)(1)(D) of CWA requires that NPDES 

States have the authority ‘‘to issue permits 

which*** control the disposal of pollutants into wells.’’ In many instances, therefore, NPDES States will have existing statutory authority to regulate well disposal 

which satisfies the requirements of the UIC 

program. Note, however, that CWA excludes 

certain types of well injections from the definition of ‘‘pollutant.’’ If the State’s statutory authority contains a similar exclusion 

it may need to be modified to qualify for UIC 

program approval. 

§ 123.29 Prohibition. 

State permit programs shall provide 

that no permit shall be issued when the 

Regional Administrator has objected in 

writing under §123.44. 

§ 123.30 Judicial review of approval or 

denial of permits. 

All States that administer or seek to 

administer a program under this part 

shall provide an 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 §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] 

§ 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 


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Environmental Protection Agency § 123.32 

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] 

§ 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 

§123.31. The application shall include 

the following information: 

(a) A statement that the Tribe is recognized by the Secretary of the Interior; 

(b) A descriptive statement demonstrating that the Tribal governing 

body is currently carrying out substantial governmental duties and powers 

over a defined area. This statement 

should: 

(1) Describe the form of the Tribal 

government; 

(2) Describe the types of governmental functions currently performed 

by the Tribal governing body, such as, 

but not limited to, the exercise of police powers affecting (or relating to) 

the health, safety, and welfare of the 

affected population; taxation; and the 

exercise of the power of eminent domain; and 

(3) Identify the source of the Tribal 

government’s authority to carry out 

the governmental functions currently 

being performed. 

(c) A map or legal description of the 

area over which the Indian Tribe asserts authority under section 518(e)(2) 

of the Act; a statement by the Tribal 

Attorney General (or equivalent official authorized to represent the Tribe 

in all legal matters in court pertaining 

to the program for which it seeks approval) which describes the basis for 

the Tribe’s assertion (including the nature or subject matter of the asserted 

regulatory authority); copies of those 

documents such as Tribal constitutions, by-laws, charters, executive orders, codes, ordinances, and/or resolutions which support the Tribe believes 

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 


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§ 123.33 40 CFR Ch. I (7–1–15 Edition) 

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] 

§ 123.33 Procedures for processing an 

Indian Tribe’s application. 

(a) The Regional Administrator shall 

process an application of an Indian 

Tribe submitted pursuant to §123.32 in 

a timely manner. He shall promptly 

notify the Indian Tribe of receipt of the 

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] 

§ 123.34 Provisions for Tribal criminal 

enforcement authority. 

To the extent that an Indian Tribe is 

precluded from asserting criminal enforcement authority as required under 

§123.27, the Federal Government will 

exercise primary criminal enforcement 

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 §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] 

§ 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 

§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, 


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Environmental Protection Agency § 123.35 

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 §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 §§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 

§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 

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 


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§ 123.36 40 CFR Ch. I (7–1–15 Edition) 

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 §§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 

some or all of the requirements in 

§122.34(b) of this chapter. See §122.34(c) 

of this chapter. Qualifying local, State 

or Tribal program requirements must 

impose, at a minimum, the relevant requirements of §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 

§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 §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 

§122.34(g)(3) of this chapter. EPA intends to develop a model form for this 

purpose. 

[64 FR 68850, Dec. 8, 1999] 

§ 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 


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Environmental Protection Agency § 123.43 

40 CFR 412.4(c)(2), the Director shall establish such standards by the date 

specified in §123.62(e). 

[68 FR 7269, Feb. 12, 2003] 

Subpart C—Transfer of Information 

and Permit Review 

§ 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. 

§ 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 §123.24 (or, in the 

case of a sewage sludge management 

program, §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] 

§ 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 

§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 §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 §123.24(d). The State shall supply 

EPA with copies of notices for which 


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§ 123.44 40 CFR Ch. I (7–1–15 Edition) 

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 §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 §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 §123.24(d) 

and for which EPA has not otherwise 

requested receipt, if: 

(i) The Regional Administrator requests this information; or 

(ii) The proposed permit contains requirements significantly different from 

those contained in the tentative determination and draft permit; or 

(iii) Significant comments objecting 

to the tentative determination and 

draft permit have been presented at the 

hearing or in writing pursuant to the 

public notice. 

(d) Any State permit program shall 

keep such records and submit to the 

Administrator such information as the 

Administrator may reasonably require 

to ascertain whether the State program complies with the requirements 

of CWA or of this part. 

[48 FR 14178, Apr. 1, 1983, as amended at 60 

FR 33931, June 29, 1995; 64 FR 42470, Aug. 4, 

1999] 

§ 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 


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Environmental Protection Agency § 123.44 

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; 

(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 §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 §123.43 (or, in the case of a 

sewage sludge management program, 

§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 


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§ 123.45 40 CFR Ch. I (7–1–15 Edition) 

that the Regional Administrator determines are necessary for review. If this 

request is made within 30 days of receipt of the State submittal under 

§123.43 (or, in the case of a sewage 

sludge management program, §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 §124.12 (c) and (d) of this chapter (or, 

in the case of a sewage sludge management program, §501.15(d)(7) of this 

chapter) will be held, and public notice 

provided in accordance with §124.10 of 

this chapter, (or, in the case of a sewage sludge management program, 

§501.15(d)(5) of this chapter), whenever 

requested by the State or the interstate agency which proposed the permit or if warranted by significant public interest based on requests received. 

(f) A public hearing held under paragraph (e) of this section shall be conducted by the Regional Administrator, 

and, at the Regional Administrator’s 

discretion, with the assistance of an 

EPA panel designated by the Regional 

Administrator, in an orderly and expeditious manner. 

(g) Following the public hearing, the 

Regional Administrator shall reaffirm 

the original objection, modify the 

terms of the objection, or withdraw the 

objection, and shall notify the State of 

this decision. 

(h)(1) If no public hearing is held 

under paragraph (e) of this section and 

the State does not resubmit a permit 

revised to meet the Regional Administrator’s objection within 90 days of receipt of the objection, the Regional Administrator may issue the permit in 

accordance with parts 121, 122 and 124 

of this chapter and any other guidelines and requirements of CWA. 

(2) If a public hearing is held under 

paragraph (e) of this section, the Regional Administrator does not withdraw the objection, and the State does 

not resubmit a permit revised to meet 

the Regional Administrator’s objection 

or modified objection within 30 days of 

the date of the Regional Administrator’s notification under paragraph (g) 

of this section, the Regional Administrator may issue the permit in accordance with parts 121, 122 and 124 of this 

chapter and any other guidelines and 

requirements of CWA. 

(3) Exclusive authority to issue the 

permit passes to EPA when the times 

set out in this paragraph expire. 

(i) [Reserved] 

(j) The Regional Administrator may 

agree, in the Memorandum of Agreement under §123.24 (or, in the case of a 

sewage sludge management program, 

§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] 

§ 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. 


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Environmental Protection Agency § 123.45 

(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. 

(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). 


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§ 123.45 40 CFR Ch. I (7–1–15 Edition) 

(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 

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 ...................... 1August 31 

July, August, and September ......... 1 November 30 

October, November, and December.

1February 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 §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 §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: 


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Environmental Protection Agency § 123.46 

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 

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] 

§ 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, 


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§ 123.46 40 CFR Ch. I (7–1–15 Edition) 

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 

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 


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Environmental Protection Agency § 123.62 

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 

§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 

§ 123.61 Approval process. 

(a) After determining that a State 

program submission is complete, EPA 

shall publish notice of the State’s application in the FEDERAL REGISTER, 

and in enough of the largest newspapers in the State to attract statewide attention, and shall mail notice 

to persons known to be interested in 

such matters, including all persons on 

appropriate State and EPA mailing 

lists and all permit holders and applicants within the State. The notice 

shall: 

(1) Provide a comment period of not 

less than 45 days during which interested members of the public may express their views on the State program; 

(2) Provide for a public hearing within the State to be held no less than 30 

days after notice is published in the 

FEDERAL REGISTER; 

(3) Indicate the cost of obtaining a 

copy of the State’s submission; 

(4) Indicate where and when the 

State’s submission may be reviewed by 

the public; 

(5) Indicate whom an interested 

member of the public should contact 

with any questions; and 

(6) Briefly outline the fundamental 

aspects of the State’s proposed program, and the process for EPA review 

and decision. 

(b) Within 90 days of the receipt of a 

complete program submission under 

§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] 

§ 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. 


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§ 123.63 40 CFR Ch. I (7–1–15 Edition) 

(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 

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 §123.22(b) (or, in 

the case of a sewage sludge management program, §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 

§§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] 

§ 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 


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Environmental Protection Agency § 123.64 

(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 

§123.24 (or, in the case of a sewage 

sludge management program, §501.14 of 

this chapter). 

(5) Where the State fails to develop 

an adequate regulatory program for developing water quality-based effluent 

limits in NPDES permits. 

(6) Where a Great Lakes State or 

Tribe (as defined in 40 CFR 132.2) fails 

to adequately incorporate the NPDES 

permitting implementation procedures 

promulgated by the State, Tribe, or 

EPA pursuant to 40 CFR part 132 into 

individual permits. 

(b) [Reserved] 

[48 FR 14178, Apr. 1, 1983; 50 FR 6941, Feb. 19, 

1985, as amended at 54 FR 23897, June 2, 1989; 

60 FR 15386, Mar. 23, 1995; 63 FR 45123, Aug. 

24, 1998] 

§ 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 

§123.63 (or, in the case of a sewage 

sludge management program, §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 


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§ 123.64 40 CFR Ch. I (7–1–15 Edition) 

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) §22.02—(use of number/gender); 

(B) §22.04(c)—(authorities of Presiding Officer); 

(C) §22.06—(filing/service of rulings 

and orders); 

(D) §22.09—(examination of filed documents); 

(E) §22.19(a), (b) and (c)—(prehearing 

conference); 

(F) §22.22—(evidence); 

(G) §22.23—(objections/offers of 

proof); 

(H) §22.25—(filing the transcript); and 

(I) §22.26—(findings/conclusions). 

(ii) The following provisions are also 

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 


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Environmental Protection Agency § 123.64 

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 

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; 


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(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 

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 

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. 


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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. 

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. 


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§ 124.1 40 CFR Ch. I (7–1–15 Edition) 

Subpart A—General Program 

Requirements 

§ 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 §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 

§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 

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 §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 §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 §§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 §§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 §§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] 

§ 124.2 Definitions. 

(a) In addition to the definitions 

given in §§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 


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Environmental Protection Agency § 124.2 

this part, except for PSD permits 

which are governed by the definitions 

in §124.41. Terms not defined in this 

section have the meaning given by the 

appropriate Act. 

Administrator means the Administrator of the U.S. Environmental Protection Agency, or an 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 §§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. 

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 

§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 §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 §124.5, are types of ‘‘draft 

permits.’’ A denial of a request for 

modification, revocation and 

reissuance or termination, as discussed 

in §124.5, is not a ‘‘draft permit.’’ A 

‘‘proposal permit’’ is not a ‘‘draft permit.’’ 

Environmental Appeals Board shall 

mean the Board within the Agency described in §1.25(e) of this title. The Administrator delegates authority to the 

Environmental Appeals Board to issue 

final decisions in RCRA, PSD, UIC, or 

NPDES permit appeals filed under this 

subpart, including informal appeals of 

denials of requests for modification, 

revocation and reissuance, or termination of 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 


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§ 124.2 40 CFR Ch. I (7–1–15 Edition) 

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 

§122.28. For 404, a general permit means 

a permit issued under §233.37. 

Indian Tribe means (in the case of 

UIC) any Indian Tribe having a federally recognized governing body carrying out substantial governmental duties and powers over a defined area. 

For the NPDES program, the term 

‘‘Indian Tribe’’ means any Indian 

Tribe, band, group, or community recognized by the Secretary of the Interior and exercising governmental authority over a Federal Indian reservation. 

Interstate agency means an agency of 

two or more States established by or 

under an agreement or compact approved by the Congress, or any other 

agency of two or more States having 

substantial powers or duties pertaining 

to the control of pollution as determined and approved by the Administrator under the ‘‘appropriate Act and 

regulations.’’ 

Major facility means any RCRA, UIC, 

NPDES, or 404 ‘‘facility or activity’’ 

classified as such by the Regional Administrator, or, in the case of ‘‘approved State programs,’’ the Regional 

Administrator in conjunction with the 

State Director. 

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’’ 

(§270.60), RCRA standardized permit 

(§270.67), UIC area permit (§144.33), 

NPDES or 404 ‘‘general permit’’ 

(§§270.61, 144.34, and 233.38). Permit does 

not include RCRA interim status 

(§270.70), UIC authorization by rule 

(§144.21), or any permit which has not 

yet been the subject of final agency action, such as a ‘‘draft permit’’ or a 

‘‘proposed permit.’’ 

Person means an individual, association, 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 


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Environmental Protection Agency § 124.3 

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. 

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 §§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] 

§ 124.3 Application for a permit. 

(a) Applicable to State programs, see 

§§123.25 (NPDES), 145.11 (UIC), 233.26 

(404), and 271.14 (RCRA). (1) Any person 

who requires a permit under the RCRA, 

UIC, NPDES, or PSD programs shall 

complete, sign, and submit to the Director an application for each permit 

required under §§270.1 (RCRA), 144.1 

(UIC), 40 CFR 52.21 (PSD), and 122.1 

(NPDES). Applications are not required 

for RCRA permits by rule (§270.60), underground injections authorized by 

rules (§§144.21 through 144.26), NPDES 

general permits (§122.28) and 404 general permits (§233.37). 

(2) The Director shall not begin the 

processing of a permit until the applicant has fully complied with the application requirements for that permit. 

See §§270.10, 270.13 (RCRA), 144.31 (UIC), 

40 CFR 52.21 (PSD), and 122.21 (NPDES). 

(3) Permit applications (except for 

PSD permits) must comply with the 

signature and certification requirements of §§122.22 (NPDES), 144.32 (UIC), 

233.6 (404), and 270.11 (RCRA). 

(b) [Reserved] 

(c) The Regional Administrator shall 

review for completeness every application for an EPA-issued permit. Each 

application for an EPA-issued permit 

submitted by a new HWM facility, a 

new UIC 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 


Lhorne on DSK5TPTVN1PROD with CFR
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§ 124.4 40 CFR Ch. I (7–1–15 Edition) 

date for submitting the necessary information. The Regional Administrator 

shall notify the applicant that the application is complete upon receiving 

this information. After the application 

is completed, the Regional Administrator may request additional information from an applicant but only when 

necessary to clarify, modify, or supplement previously submitted material. 

Requests for such additional information will not render an application incomplete. 

(d) If an applicant fails or refuses to 

correct deficiencies in the application, 

the permit may be denied and appropriate enforcement actions may be 

taken under the applicable statutory 

provision including RCRA section 3008, 

SDWA sections 1423 and 1424, CAA section 167, and CWA sections 308, 309, 

402(h), and 402(k). 

(e) If the Regional Administrator decides that a site visit is necessary for 

any reason in conjunction with the 

processing of an application, he or she 

shall notify the applicant and a date 

shall be scheduled. 

(f) The effective date of an application is the date on which the Regional 

Administrator notifies the applicant 

that the application is complete as provided in paragraph (c) of this section. 

(g) For each application from a major 

new HWM facility, major new UIC injection well, major NPDES new source, 

major NPDES new discharger, or a permit to be issued under provisions of 

§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] 

§ 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 §124.7 for EPAissued permits only) or fact sheets 

(§124.8), administrative records (required under §124.9 for EPA-issued permits only), public comment periods 

(§124.10), and any public hearings 

(§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 


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325 

Environmental Protection Agency § 124.5 

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 §124.3(f). 

[48 FR 14264, Apr. 1, 1983, as amended at 65 

FR 30910, May 15, 2000] 

§ 124.5 Modification, revocation and 

reissuance, or termination of permits. 

(a) (Applicable to State programs, see 

§§123.25 (NPDES), 145.11 (UIC), 233.26 

(404), and 271.14 (RCRA).) Permits 

(other than PSD permits) may be modified, revoked and reissued, or terminated either at the request of any interested person (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 

§122.62 or §122.64 (NPDES), 144.39 or 

144.40 (UIC), 233.14 or 233.15 (404), and 

270.41 or 270.43 (RCRA). All requests 

shall be in writing and shall contain 

facts or reasons supporting the request. 

(b) If the Director decides the request 

is not justified, he or she shall send the 

requester a brief written response giving a reason for the decision. Denials of 

requests for modification, revocation 

and reissuance, or termination are not 

subject to public notice, comment, or 

hearings. Denials by the Regional Administrator may be informally appealed to the Environmental Appeals 

Board by a letter briefly setting forth 

the relevant facts. The Environmental 

Appeals Board may direct the Regional 

Administrator to begin modification, 

revocation and reissuance, or termination proceedings under paragraph (c) 

of this section. The appeal shall be considered denied if the Environmental 

Appeals Board takes no action on the 

letter within 60 days after receiving it. 

This informal appeal is, under 5 U.S.C. 

704, a prerequisite to seeking judicial 

review of EPA action in denying a request for modification, revocation and 

reissuance, or termination. 

(c) (Applicable to State programs, see 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 §270.41(b)(3)) 

or §270.42(c) (RCRA), he or she shall 

prepare a draft permit under §124.6 incorporating the proposed changes. The 

Director may request additional information and, in the case of a 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 §§122.63 (NPDES), 144.41 (UIC), and 

233.16 (404), and ‘‘Classes 1 and 2 modifications’’ as defined in §270.42 (a) and 

(b) (RCRA) are not subject to the requirements of this section. 

(d) (Applicable to State programs, see 

§§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 §144.40 (UIC) of this chapter, a 

permit under §§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 §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 §124.6 of this chapter. 

(2) For EPA-issued NPDES or RCRA 

permits, if the Director tentatively decides to terminate a permit under 


Lhorne on DSK5TPTVN1PROD with CFR
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§ 124.6 40 CFR Ch. I (7–1–15 Edition) 

§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 

§§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 §122.64 of 

this chapter may be accomplished by 

providing written notice to the permittee, unless the permittee objects. 

(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 

§124.9. 

(f) (Applicable to State programs, see 

§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 

§233.16 (404)) shall be treated as a permit application and shall be processed 

in accordance with all requirements of 

§124.3. 

(g)(1) (Reserved for PSD Modification 

Provisions). 

(2) PSD permits may be terminated 

only by rescission under §52.21(w) or by 

automatic expiration under §52.21(r). 

Applications for rescission shall be 

precessed under §52.21(w) and are not 

subject to this part. 

[48 FR 14264, Apr. 1, 1983, as amended at 53 

FR 37934, Sept. 28, 1988; 54 FR 18785, May 2, 

1989; 57 FR 60129, Dec. 18, 1992; 65 FR 30910, 

May 15, 2000; 70 FR 53449, Sept. 8, 2005] 

§ 124.6 Draft permits. 

(a) (Applicable to State programs, see 

§§123.25 (NPDES), 145.11 (UIC), 233.26 

(404), and 271.14 (RCRA).) Once an application is complete, the 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 §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 §124.6(e). If the 

Director’s final decision (§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 

§§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 

§§123.25 (NPDES), 145.11 (UIC), 233.26 

(404), and 271.14 (RCRA).) If the Director 

decides to prepare a draft permit, he or 

she shall prepare a draft permit that 

contains the following information: 

(1) All conditions under §§122.41 and 

122.43 (NPDES), 144.51 and 144.42 (UIC, 

233.7 and 233.8 (404, or 270.30 and 270.32 

(RCRA) (except for PSD permits))); 

(2) All compliance schedules under 

§§122.47 (NPDES), 144.53 (UIC), 233.10 

(404), or 270.33 (RCRA) (except for PSD 

permits); 

(3) All monitoring requirements 

under §§122.48 (NPDES), 144.54 (UIC), 

233.11 (404), or 270.31 (RCRA) (except for 

PSD permits); and 

(4) For: 

(i) RCRA permits, standards for 

treatment, storage, and/or disposal and 

other permit conditions under §270.30; 

(ii) UIC permits, permit conditions 

under §144.52; 

(iii) PSD permits, permit conditions 

under 40 CFR §52.21; 

(iv) 404 permits, permit conditions 

under §§233.7 and 233.8; 

(v) NPDES permits, effluent limitations, standards, prohibitions, standards for sewage sludge use or disposal, 

and conditions under §§122.41, 122.42, 


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327 

Environmental Protection Agency § 124.8 

and 122.44, including when applicable 

any conditions certified by a State 

agency under §124.55, and all variances 

that are to be included under §124.63. 

(e) (Applicable to State programs, see 

§§123.25 (NPDES), 145.11 (UIC), 233.26 

(404), and 271.14 (RCRA).) All draft permits prepared by EPA under this section shall be accompanied by a statement of basis (§124.7) or fact sheet 

(§124.8), and shall be based on the administrative record (§124.9), publicly 

noticed (§124.10) and made available for 

public comment (§124.11). The Regional 

Administrator shall give notice of opportunity for a public hearing (§124.12), 

issue a final decision (§124.15) and respond to comments (§124.17). For 

RCRA, UIC or PSD permits, an appeal 

may be taken under §124.19 and, for 

NPDES permits, an appeal may be 

taken under §124.74. Draft permits prepared by a State shall be accompanied 

by a fact sheet if required under §124.8. 

[48 FR 14264, Apr. 1, 1983, as amended at 54 

FR 18785, May 2, 1989; 65 FR 30910, May 15, 

2000] 

§ 124.7 Statement of basis. 

EPA shall prepare a statement of 

basis for every draft permit for which a 

fact sheet under §124.8 is not prepared. 

The statement of basis shall 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. 

§ 124.8 Fact sheet. 

(Applicable to State programs, see 

§§123.25 (NPDES), 145.11 (UIC), 233.26 

(404), and 271.14 (RCRA).) 

(a) A fact sheet shall be prepared for 

every draft permit for a major HWM, 

UIC, 404, or NPDES facility or activity, 

for every Class I sludge management 

facility, for every 404 and NPDES general permit (§§237.37 and 122.28), for 

every NPDES draft permit that incorporates a variance or requires an explanation under §124.56(b), for every draft 

permit that includes a sewage sludge 

land application plan under 40 CFR 

501.15(a)(2)(ix), and for every draft permit which the Director finds is the subject of wide-spread 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 §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 §124.10 and 

the address where comments will be received; 

(ii) Procedures for requesting a hearing and the nature of that hearing; and 

(iii) Any other procedures by which 

the public may participate in the final 

decision. 

(7) Name and telephone number of a 

person to contact for additional information. 

(8) For NPDES permits, provisions 

satisfying the requirements of §124.56. 

(9) Justification for waiver of any application requirements under §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] 


Lhorne on DSK5TPTVN1PROD with CFR
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§ 124.9 40 CFR Ch. I (7–1–15 Edition) 

§ 124.9 Administrative record for draft 

permits when EPA is the permitting 

authority. 

(a) The provisions of a draft permit 

prepared by EPA under §124.6 shall be 

based on the administrative record defined in this section. 

(b) For preparing a draft permit 

under §124.6, the record shall consist 

of: 

(1) The application, if required, and 

any 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 (§124.7) or 

fact sheet (§124.8); 

(4) All documents cited in the statement of basis or fact sheet; and 

(5) Other documents contained in the 

supporting file for the draft permit. 

(6) For NPDES new source draft permits only, any environmental assessment, environmental impact statement 

(EIS), finding of no significant impact, 

or environmental information document and any supplement to an EIS 

that may have been prepared. NPDES 

permits other than permits to new 

sources as well as all RCRA, UIC and 

PSD permits are not subject to the environmental impact statement provisions of section 102(2)(C) of the National Environmental Policy Act, 42 

U.S.C. 4321. 

(c) Material readily available at the 

issuing Regional Office or published 

material that is generally available, 

and that is included in the administrative record under paragraphs (b) and (c) 

of this section, need not be physically 

included with the rest of the record as 

long as it is specifically referred to in 

the statement of basis or the fact 

sheet. 

(d) This section applies to all draft 

permits when public notice was given 

after the effective date of these regulations. 

§ 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 §124.6(b); 

(ii) (Applicable to State programs, see 

§§123.25 (NPDES), 145.11 (UIC), 233.26 

(404), and 271.14 (RCRA).) A draft permit 

has been prepared under §124.6(d); 

(iii) (Applicable to State programs, see 

§§123.25 (NPDES), 145.11 (UIC), 233.26 

(404) and 271.14 (RCRA)).) A hearing has 

been scheduled under §124.12; 

(iv) (Applicable to State programs, see 

§233.26 (404).) A State section 404 application has been received in cases when 

no draft permit will be prepared (see 

§233.39); or 

(v) An NPDES new source determination has been made under §122.29. 

(2) No public notice is required when 

a request for permit modification, revocation and reissuance, or termination 

is denied under §124.5(b). Written notice of that denial shall be given to the 

requester and to the permittee. 

(3) Public notices may describe more 

than one permit or permit actions. 

(b) Timing (applicable to State programs, see §§123.25 (NPDES), 145.11 

(UIC), 233.26 (404, and 271.14 (RCRA)). (1) 

Public notice of the 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 EPAissued 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 40 CFR 123.25 (NPDES), 

145.11 (UIC), 233.23 (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 


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Environmental Protection Agency § 124.10 

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. 

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. 

(xi) For Class VI injection well UIC 

permits, mailing or e-mailing a notice 

to State and local oil and gas regulatory agencies and State agencies regulating mineral exploration and recovery, the Director of the Public Water 

Supply Supervision program in the 

State, and all agencies that oversee injection wells in the State. 

(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 EPAissued 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 


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§ 124.10 40 CFR Ch. I (7–1–15 Edition) 

major local newspaper of general circulation and broadcast over local radio 

stations. 

(3) When the program is being administered by an approved State, in a manner constituting legal notice to the 

public under State law; and 

(4) Any other method reasonably calculated to give actual notice of the action in question to the persons potentially affected by it, including press releases or any other forum or medium 

to elicit public participation. 

(d) Contents (applicable to State programs, see §§123.25 (NPDES), 145.11 

(UIC), 233.26 (404), and 271.14 (RCRA))— 

(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 §§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 §§124.11 

and 124.12 and the time and place of 

any hearing that will be held, including 

a statement of procedures to request a 

hearing (unless a hearing has already 

been scheduled) and other procedures 

by which the public may participate in 

the final permit decision. 

(vi) For EPA-issued permits, the location of the administrative record required by §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 §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 


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Environmental Protection Agency § 124.13 

the applicable rules and procedures; 

and 

(iv) For 404 permits only, a summary 

of major issues raised to date during 

the public comment period. 

(e) (Applicable to State programs, see 

§§123.25 (NPDES), 145.11 (UIC), 233.26 

(404), and 271.14 (RCRA).) In addition to 

the general public notice described in 

paragraph (d)(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; 

75 FR 77286, Dec. 10, 2010; 78 FR 5285, Jan 24. 

2013] 

§ 124.11 Public comments and requests 

for public hearings. 

(Applicable to State programs, see 

§§123.25 (NPDES), 145.11 (UIC), 233.26 

(404), and 271.14 (RCRA).) During the 

public comment period provided under 

§124.10, any interested person may submit written comments on the draft permit or the permit application for 404 

permits when no draft permit is required (see §233.39) and may 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 §124.17. 

§ 124.12 Public hearings. 

(a) (Applicable to State programs, see 

§§123.25 (NPDES), 145.11 (UIC), 233.26 

(404), and 271.14 (RCRA).) (1) The Director shall hold a public hearing whenever he or she finds, on the basis of requests, a significant degree of public 

interest in a draft permit(s); 

(2) The Director may also hold a public hearing at his or her discretion, 

whenever, for instance, such a hearing 

might clarify one or more issues involved in the permit decision; 

(3) For RCRA permits only, (i) the 

Director shall hold a public hearing 

whenever he or she receives written notice of opposition to a draft permit and 

a request for a hearing within 45 days 

of public notice under §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 §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 §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] 

§ 124.13 Obligation to raise issues and 

provide information during the 

public comment period. 

All persons, including applicants, 

who believe any condition of a draft 

permit is inappropriate or that the Director’s tentative decision to deny an 

application, terminate a permit, or 

prepare a draft permit is inappropriate, 

must raise all reasonably ascertainable 

issues and submit all reasonably available arguments supporting their position by the close of the public comment period (including any public 

hearing) under §124.10. Any 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 


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§ 124.14 40 CFR Ch. I (7–1–15 Edition) 

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 

§124.10 to the extent that a commenter 

who requests additional time demonstrates the need for such time.) 

[49 FR 38051, Sept. 26, 1984] 

§ 124.14 Reopening of the public comment period. 

(a)(1) The Regional Administrator 

may order the public comment period 

reopened if the procedures of this paragraph could expedite the decisionmaking process. When the public comment period is reopened under this 

paragraph, all persons, including applicants, who believe any condition of a 

draft permit is inappropriate or that 

the Regional Administrator’s tentative 

decision to deny an application, terminate a permit, or prepare a draft permit is inappropriate, must submit all 

reasonably available factual grounds 

supporting their position, including all 

supporting material, by a date, not less 

than sixty days after public notice 

under paragraph (a)(2) of this section, 

set by the Regional Administrator. 

Thereafter, any person may file a written response to the material filed by 

any other person, by a date, not less 

than twenty days after the date set for 

filing of the material, set by the Regional Administrator. 

(2) Public notice of any comment period under this paragraph shall identify 

the issues to which the requirements of 

§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 §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 §124.13, 

appear to raise substantial new questions concerning a permit, the Regional Administrator may take one or 

more of the following actions: 

(1) Prepare a new draft permit, appropriately modified, under §124.6; 

(2) Prepare a revised statement of 

basis under §124.7, a fact sheet or revised fact sheet under §124.8 and reopen 

the comment period under §124.14; or 

(3) Reopen or extend the comment period under §124.10 to give interested 

persons an opportunity to comment on 

the information or arguments 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 §124.10 shall define the 

scope of the reopening. 

(d) [Reserved] 

(e) Public notice of any of the above 

actions shall be issued under §124.10. 

[48 FR 14264, Apr. 1, 1983, as amended at 49 

FR 38051, Sept. 26, 1984; 65 FR 30911, May 15, 

2000] 

§ 124.15 Issuance and effective date of 

permit. 

(a) After the close of the public comment period under §124.10 on a draft 

permit, the Regional 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 §270.29). 

The Regional Administrator shall notify the applicant and each person who 


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Environmental Protection Agency § 124.17 

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 §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 §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 §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] 

§ 124.16 Stays of contested permit conditions. 

(a) Stays. (1) If a request for review of 

a RCRA, UIC, or NPDES permit under 

§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 §124.60. 

(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 §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 §124.19 of one permit may 

result in changes to another EPAissued permit only when each of the 

permits involved has been appealed to 

the Administrator. 

(2) No stay of an EPA-issued RCRA, 

UIC, or NPDES permit shall be granted 

based on the staying of any Stateissued 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 §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; 78 FR 5285, Jan. 25, 

2013] 

§ 124.17 Response to comments. 

(a) (Applicable to State programs, see 

§§123.25 (NPDES), 145.11 (UIC), 233.26 

(404), and 271.14 (RCRA).) At the time 

that any final permit decision is issued 

under §124.15, the Director shall issue a 

response to comments. States are only 


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§ 124.18 40 CFR Ch. I (7–1–15 Edition) 

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 §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 

§§123.25 (NPDES), 145.11 (UIC), 233.26 

(404), and 271.14 (RCRA).) The response 

to comments shall be available to the 

public. 

§ 124.18 Administrative record for 

final permit when EPA is the permitting authority. 

(a) The Regional Administrator shall 

base final permit decisions under 

§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 

§124.10 (including any extension or reopening under §124.14); 

(2) The tape or transcript of any 

hearing(s) held under §124.12; 

(3) Any written materials submitted 

at such a hearing; 

(4) The response to comments required by §124.17 and any new material 

placed in the record under that section; 

(5) For NPDES new source permits 

only, final environmental impact 

statement and any 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 §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 §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. 

§ 124.19 Appeal of RCRA, UIC, NPDES 

and PSD Permits. 

(a) Petitioning for review of a permit decision. (1) Initiating an appeal. Appeal 

from a RCRA, UIC, NPDES, or PSD 

final permit decision issued under 

§124.15 of this part, or a decision to 

deny a permit for the active life of a 

RCRA hazardous waste management 

facility or unit under §270.29 of this 

chapter, is commenced by filing a petition for review with the Clerk of the 

Environmental Appeals Board within 

the time prescribed in paragraph (a)(3) 

of this section. 

(2) Who may file? Any person who 

filed comments on the draft permit or 

participated in a public hearing on the 

draft permit may file a petition for review as provided in this section. Additionally, any person who failed to file 

comments or failed to participate in 

the public hearing on the draft permit 

may petition for administrative review 

of any permit conditions set forth in 

the final permit decision, but only to 

the extent that those final permit conditions reflect changes from the proposed draft permit. 

(3) Filing deadline. A petition for review must be filed with the Clerk of 


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Environmental Protection Agency § 124.19 

the Environmental Appeals Board 

within 30 days after the Regional Administrator serves notice of the 

issuance of a RCRA, UIC, NPDES, or 

PSD final permit decision under §124.15 

or a decision to deny a permit for the 

active life of a RCRA hazardous waste 

management facility or unit under 

§270.29 of this chapter. A petition is 

filed when it is received by the Clerk of 

the Environmental Appeals Board at 

the address specified for the appropriate method of delivery as provided 

in paragraph (i)(2) of this section. 

(4) Petition contents. (i) In addition to 

meeting the requirements in paragraph 

(d), a petition for review must identify 

the contested permit condition or 

other specific challenge to the permit 

decision and clearly set forth, with 

legal and factual support, petitioner’s 

contentions for why the permit decision should be reviewed. The petition 

must demonstrate that each challenge 

to the permit decision is based on: 

(A) A finding of fact or conclusion of 

law that is clearly erroneous, or 

(B) An exercise of discretion or an 

important policy consideration that 

the Environmental Appeals Board 

should, in its discretion, review. 

(ii) Petitioners must demonstrate, by 

providing specific citation to the administrative record, including the document name and page number, that 

each issue being raised in the petition 

was raised during the public comment 

period (including any public hearing) 

to the extent required by §124.13. For 

each issue raised that was not raised 

previously, the petition must explain 

why such issues were not required to be 

raised during the public comment period as provided in §124.13. Additionally, if the petition raises an issue that 

the Regional Administrator addressed 

in the response to comments document 

issued pursuant to §124.17, then petitioner must provide a citation to the 

relevant comment and response and explain why the Regional Administrator’s response to the comment was 

clearly erroneous or otherwise warrants review. 

(b) Response(s) to a petition for review. 

(1) In a PSD or other new source permit appeal, the Regional Administrator must file a response to the petition for review, a certified index of the 

administrative record, and the relevant 

portions of the administrative record 

within 21 days after the filing of the petition. 

(2) In all other permit appeals under 

this section, the Regional Administrator must file a response to the petition, a certified index of the administrative record, and the relevant portions of the administrative record 

within 30 days after the filing of a petition. 

(3) A permit applicant who did not 

file a petition but who wishes to participate in the appeal process must file 

a notice of appearance and a response 

to the petition. Such documents must 

be filed by the deadlines provided in 

paragraph (b)(1) or (2) of this section, 

as appropriate. 

(4) The State or Tribal authority 

where the permitted facility or site is 

or is proposed to be located (if that authority is not the permit issuer) must 

also file a notice of appearance and a 

response if it wishes to participate in 

the appeal. Such response must be filed 

by the deadlines provided in paragraph 

(b)(1) or (2) of this section, as appropriate. 

(c) Replies. (1) In PSD and other new 

source permit appeals, the Environmental Appeals Board will apply a presumption against the filing of a reply 

brief. By motion, petitioner may seek 

leave of the Environmental Appeals 

Board to file a reply to the response, 

which the Environmental Appeals 

Board, in its discretion, may grant. 

The motion must be filed simultaneously with the proposed reply within 

10 days after service of the response. In 

its motion, petitioner must specify 

those arguments in the response to 

which petitioner seeks to reply and the 

reasons petitioner believes it is necessary to file a reply to those arguments. Petitioner may not raise new 

issues or arguments in the motion or in 

the reply. 

(2) In all other permit appeals under 

this section, petitioner may file a reply 

within 15 days after service of the response. Petitioner may not raise new 

issues or arguments in the reply. 

(d) Content and form of briefs. (1) Content requirements. All briefs filed under 

this section must contain, under appropriate headings: 


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§ 124.19 40 CFR Ch. I (7–1–15 Edition) 

(i) A table of contents, with page references; 

(ii) A table of authorities with references to the pages of the brief where 

they are cited; 

(iii) A table of attachments, if required under paragraph (d)(2) of this 

section; and 

(iv) A statement of compliance with 

the word limitation. 

(2) Attachments. Parts of the record to 

which the parties wish to direct the 

Environmental Appeals Board’s attention may be appended to the brief submitted. If the brief includes attachments, a table must be included that 

provides the title of each appended document and assigns a label identifying 

where it may be found (e.g., Excerpts 

from the Response to Comments Document * * * Attachment 1). 

(3) Length. Unless otherwise ordered 

by the Environmental Appeals Board, 

petitions and response briefs may not 

exceed 14,000 words, and all other briefs 

may not exceed 7,000 words. Filers may 

rely on the word-processing system 

used to determine the word count. In 

lieu of a word limitation, filers may 

comply with a 30-page limit for petitions and response briefs, or a 15-page 

limit for replies. Headings, footnotes, 

and quotations count toward the word 

limitation. The table of contents, table 

of authorities, table of attachments (if 

any), statement requesting oral argument (if any), statement of compliance 

with the word limitation, and any attachments do not count toward the 

word limitation. The Environmental 

Appeals Board may exclude any petition, response, or other brief that does 

not meet word limitations. Where a 

party can demonstrate a compelling 

and documented need to exceed such 

limitations, such party must seek advance leave of the Environmental Appeals Board to file a longer brief. Such 

requests are discouraged and will be 

granted only in unusual circumstances. 

(e) Participation by amicus curiae. Any 

interested person may file an amicus 

brief in any appeal pending before the 

Environmental Appeals Board under 

this section. The deadline for filing 

such brief is 15 days after the filing of 

the response brief, except that amicus 

briefs in PSD or other new source permit appeals must be filed within 21 

days after the filing of the petition. 

Amicus briefs must comply with all 

procedural requirements of this section. 

(f) Motions. (1) In general. A request 

for an order or other relief must be 

made by written motion unless these 

rules prescribe another form. 

(2) Contents of a motion. A motion 

must state with particularity the 

grounds for the motion, the relief 

sought, and the legal argument necessary to support the motion. In advance of filing a motion, parties must 

attempt to ascertain whether the other 

party(ies) concur(s) or object(s) to the 

motion and must indicate in the motion the attempt made and the response obtained. 

(3) Response to motion. Any party may 

file a response to a motion. Responses 

must state with particularity the 

grounds for opposition and the legal argument necessary to support the motion. The response must be filed within 

15 days after service of the motion unless the Environmental Appeals Board 

shortens or extends the time for response. 

(4) Reply. Any reply to a response 

filed under paragraph (f)(3) of this section must be filed within 10 days after 

service of the response. A reply must 

not introduce any new issues or arguments and may respond only to matters presented in the response. 

(5) Disposition of a motion for a procedural order. The Environmental Appeals Board may act on a motion for a 

procedural order at any time without 

awaiting a response. 

(g) Timing of motions for extension of 

time. Parties must file motions for extensions of time sufficiently in advance 

of the due date to allow other parties 

to have a reasonable opportunity to respond to the request for more time and 

to provide the Environmental Appeals 

Board with a reasonable opportunity to 

issue an order. 

(h) Oral argument. The Environmental Appeals Board may hold oral 

argument on its own initiative or at its 

discretion in response to a request by 

one or more of the parties. To request 

oral argument, a party must include in 

its substantive brief a statement explaining why oral argument should be 

permitted. The Environmental Appeals 


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Environmental Protection Agency § 124.19 

Board will apply a presumption against 

oral argument in PSD or other new 

source permit appeals. The Environmental Appeals Board may, by order, 

establish additional procedures governing any oral argument before the 

Environmental Appeals Board. 

(i) Filing and service requirements. 

Documents filed under this section, including the petition for review, must 

be filed with the Clerk of the Environmental Appeals Board. A document is 

filed when it is received by the Clerk of 

the Environmental Appeals Board at 

the address specified for the appropriate method of delivery as provided 

in paragraph (i)(2) of this section. 

(1) Caption and other filing requirements. Every document filed with the 

Environmental Appeals Board must 

specifically identify in the caption the 

permit applicant, the permitted facility, and the permit number. All documents that are filed must be signed by 

the person filing the documents or the 

representative of the person filing the 

documents. Each filing must also indicate the signer’s name, address, and 

telephone number, as well as an email 

address, and facsimile number, if any. 

(2) Method of filing. Unless otherwise 

permitted under these rules, documents must be filed either electronically, by mail, or by hand delivery. In 

addition, a motion or a response to a 

motion may be submitted by facsimile 

if the submission contains no attachments. Upon filing a motion or response to a motion by facsimile, the 

sender must, within one business day, 

submit the original copy to the Clerk 

of the Environmental Appeals Board either electronically, by mail, or by 

hand-delivery. 

(i) Electronic filing. Documents that 

are filed electronically must be submitted using the Environmental Appeals Board’s electronic filing system, 

subject to any appropriate conditions 

and limitations imposed by order of the 

Environmental Appeals Board. All documents filed electronically must include the full name of the person filing 

below the signature line. Compliance 

with Environmental Appeals Board 

electronic filing requirements constitutes compliance with applicable 

signature requirements. 

(ii) Filing by U.S. Mail. Documents 

that are sent by U.S. Postal Service 

(except by U.S. Express Mail) must be 

sent to the official mailing address of 

the Clerk of the Environmental Appeals Board at: U.S. Environmental 

Protection Agency, Environmental Appeals Board, 1200 Pennsylvania Avenue 

NW., Mail Code 1103M, Washington, DC 

20460–0001. The original and two copies 

of each document must be filed. The 

person filing the documents must include a cover letter to the Clerk of the 

Environmental Appeals Board clearly 

identifying the documents that are 

being submitted, the name of the party 

on whose behalf the documents are 

being submitted, as well as the name of 

the person filing the documents, his or 

her address, telephone number and, if 

available, fax number and email address. 

(iii) Filing by hand delivery. Documents delivered by hand or courier (including deliveries by U.S. Express 

Mail) must be delivered to the Clerk of 

the Environmental Appeals Board at: 

U.S. Environmental Protection Agency, Environmental Appeals Board, EPA 

East Building, 1201 Constitution Avenue NW., Room 3334, Washington, DC 

20004. The original and two copies of 

each document must be filed. The person filing the documents must include 

a cover letter to the Clerk of the Environmental Appeals Board clearly identifying the documents being submitted, 

the name of the party on whose behalf 

the documents are being submitted, as 

well as the name of the person filing 

the documents, his or her address, telephone number and, if available, fax 

number and email address. 

(3) Service requirements. Petitioner 

must serve the petition for review on 

the Regional Administrator and the 

permit applicant (if the applicant is 

not the petitioner). Once an appeal is 

docketed, every document filed with 

the Environmental Appeals Board must 

be served on all other parties. Service 

must be by first class mail, or by any 

reliable commercial delivery service. 

Upon agreement by the parties, service 

may be made by facsimile or electronic 

means. 

(4) Proof of service. A certificate of 

service must be appended to each document filed stating the names of persons 


Lhorne on DSK5TPTVN1PROD with CFR
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§ 124.19 40 CFR Ch. I (7–1–15 Edition) 

served, the date and manner of service, 

as well as the electronic, mailing, or 

hand delivery address, or facsimile 

number, as appropriate. 

(j) Withdrawal of permit or portions of 

permit by Regional Administrator. The 

Regional Administrator, at any time 

prior to 30 days after the Regional Administrator files its response to the petition for review under paragraph (b) of 

this section, may, upon notification to 

the Environmental Appeals Board and 

any interested parties, withdraw the 

permit and prepare a new draft permit 

under §124.6 addressing the portions so 

withdrawn. The new draft permit must 

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 that are not 

withdrawn and that are not stayed 

under §124.16(a) continue to apply. If 

the Environmental Appeals Board has 

held oral argument, the Regional Administrator may not unilaterally withdraw the permit, but instead must request that the Environmental Appeals 

Board grant a voluntary remand of the 

permit or any portion thereof. 

(k) Petitioner request for dismissal of 

petition. Petitioner, by motion, may request to have the Environmental Appeals Board dismiss its appeal. The motion must briefly state the reason for 

its request. 

(l) Final disposition and judicial review. 

(1) A petition to the Environmental 

Appeals Board under paragraph (a) of 

this section is, under 5 U.S.C. 704, a 

prerequisite to seeking judicial review 

of the final agency action. 

(2) For purposes of judicial review 

under the appropriate Act, final agency 

action on a RCRA, UIC, NPDES, or 

PSD permit occurs when agency review 

procedures under this section are exhausted and the Regional Administrator subsequently issues a final permit decision under this paragraph. A 

final permit decision must be issued by 

the Regional Administrator: 

(i) When the Environmental Appeals 

Board issues notice to the parties that 

the petition for 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. 

(3) The Regional Administrator must 

promptly publish notice of any final 

agency action regarding a PSD permit 

in the FEDERAL REGISTER. 

(m) Motions for reconsideration or clarification. Motions to reconsider or clarify any final disposition of the Environmental Appeals Board must be filed 

within 10 days after service of that 

order. Motions for reconsideration 

must set forth the matters claimed to 

have been erroneously decided and the 

nature of the alleged errors. Motions 

for clarification must set forth with 

specificity the portion of the decision 

for which clarification is being sought 

and the reason clarification is necessary. Motions for reconsideration or 

clarification under this provision must 

be directed to, and decided by, the Environmental Appeals Board. Motions 

for reconsideration or clarification directed to the Administrator, rather 

than the Environmental Appeals 

Board, will not be considered, unless 

such motion relates to a matter that 

the Environmental Appeals Board has 

referred to the Administrator pursuant 

to §124.2 and for which the Administrator has issued the final order. A motion for reconsideration or clarification does not stay the effective date of 

the final order unless the Environmental Appeals Board specifically so 

orders. 

(n) Board authority. In exercising its 

duties and responsibilities under this 

part, the Environmental Appeals Board 

may do all acts and take all measures 

necessary for the efficient, fair, and 

impartial adjudication of issues arising 

in an appeal under this part including, 

but not limited to, imposing procedural 

sanctions against a party who, without 

adequate justification, fails or refuses 

to comply with this part or an order of 

the Environmental Appeals Board. 

Such sanctions may include drawing 

adverse inferences against a party, 

striking a party’s pleadings or other 

submissions from the record, and denying any or all relief sought by the 


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Environmental Protection Agency § 124.21 

party in the proceeding. Additionally, 

for good cause, the Board may relax or 

suspend the filing requirements prescribed by these rules or Board order. 

(o) General NPDES permits. (1) Persons 

affected by an NPDES general permit 

may not file a petition under this section or otherwise challenge the conditions of a general permit in further 

Agency proceedings. Instead, they may 

do either of the following: 

(i) Challenge the general permit by 

filing an action in court; or 

(ii) Apply for an individual NPDES 

permit under §122.21 as authorized in 

§122.28 of this chapter and may then 

petition the Environmental Appeals 

Board to review the individual permit 

as provided by this section. 

(2) As provided in §122.28(b)(3) of this 

chapter, 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. 

(p) The Environmental Appeals Board 

also may 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. 

[78 FR 5285, Jan. 25, 2013] 

§ 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. 

§ 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 

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 

§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 §124.19(a), 

the requester may file an appeal with 

the Board, in accordance with the 

other requirements of §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. 


Lhorne on DSK5TPTVN1PROD with CFR
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§ 124.31 40 CFR Ch. I (7–1–15 Edition) 

(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 §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. 

§ 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 

§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 

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 


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Environmental Protection Agency § 124.32 

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 §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] 

§ 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. 

(b) Notification at application submittal. 

(1) The Director shall provide public 

notice as set forth in §124.10(c)(1)(ix), 

and notice to appropriate units of 

State and local government as set 

forth in §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 §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] 


Lhorne on DSK5TPTVN1PROD with CFR
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§ 124.33 40 CFR Ch. I (7–1–15 Edition) 

§ 124.33 Information repository. 

(a) Applicability. The requirements of 

this section apply to all applications 

seeking RCRA permits for hazardous 

waste management units over which 

EPA has permit issuance authority. 

For the purposes of this section only, 

‘‘hazardous waste management units 

over which EPA has permit issuance 

authority’’ refers to hazardous waste 

management units for which the State 

where the units are located has not 

been authorized to issue RCRA permits 

pursuant to 40 CFR part 271. 

(b) The Director may assess the need, 

on a case-by-case basis, for an information repository. When assessing the 

need for an information repository, the 

Director shall consider a variety of factors, including: the level of public interest; the type of facility; the presence of an existing repository; and the 

proximity to the nearest copy of the 

administrative record. If the Director 

determines, at any time after submittal of a permit application, that 

there is a need for a repository, then 

the Director shall notify the facility 

that it must establish and maintain an 

information repository. (See 40 CFR 

270.30(m) for similar provisions relating 

to the information repository during 

the life of a permit). 

(c) The information repository shall 

contain all documents, reports, data, 

and information deemed necessary by 

the Director to fulfill the purposes for 

which the repository is established. 

The Director shall have the discretion 

to limit the contents of the repository. 

(d) The information repository shall 

be located and maintained at a site 

chosen by the facility. If the Director 

finds the site unsuitable for the purposes and persons for which it was established, due to problems with the location, hours of availability, access, or 

other relevant considerations, then the 

Director shall specify a more appropriate site. 

(e) The Director shall specify requirements for informing the public about 

the information repository. At a minimum, the Director shall require the 

facility to provide a written notice 

about the information repository to all 

individuals on the facility mailing list. 

(f) The facility owner/operator shall 

be responsible for maintaining and updating the repository with appropriate 

information throughout a time period 

specified by the Director. The Director 

may close the repository at his or her 

discretion, based on the factors in 

paragraph (b) of this section. 

Subpart C—Specific Procedures 

Applicable to PSD Permits 

§ 124.41 Definitions applicable to PSD 

permits. 

Whenever PSD permits are processed 

under this part, the following terms 

shall have the following meanings: 

Administrator, EPA, and Regional Administrator shall have the meanings set 

forth in §124.2, 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 

§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 §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. 


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343 

Environmental Protection Agency § 124.51 

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. 

§ 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 §52.21(q)(4) shall be submitted in writing, together with any 

necessary supporting analysis, by the 

end of the public comment period 

under §124.10 or §124.118. (40 CFR 

52.21(q)(3) provides for denial of a PSD 

permit to a facility or activity when 

the Federal Land Manager demonstrates that its emissions would adversely affect a Class I area even 

though the applicable increments 

would not be exceeded. 40 CFR 

52.21(q)(4) conversely authorizes EPA, 

with the concurrence of the Federal 

Land Manager and State responsible, 

to grant certain variances from the 

otherwise applicable emission limitations to a facility or activity whose 

emissions would affect a Class I area.) 

(c) Variances authorized by 40 CFR 

52.21 (q)(5) through (q)(7) shall be handled as specified in those paragraphs 

and shall not be subject to this part. 

Upon receiving appropriate documentation of a variance properly granted 

under any of these provisions, the Regional Administrator shall enter the 

variance in the administrative record. 

Any decisions later made in proceedings under this part concerning 

that permit shall be consistent with 

the conditions of that variance. 

Subpart D—Specific Procedures 

Applicable to NPDES Permits 

§ 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] 


Lhorne on DSK5TPTVN1PROD with CFR
344 

§ 124.52 40 CFR Ch. I (7–1–15 Edition) 

§ 124.52 Permits required on a case-bycase 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 (§122.23), concentrated aquatic 

animal production facilities (§l22.24), 

storm water discharges (§122.26), and 

certain other facilities covered by general permits (§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 

§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 §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 §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 §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] 

§ 124.53 State certification. 

(a) Under CWA section 401(a)(1), EPA 

may not issue a permit until a certification is granted or waived in accordance with that section by the State in 

which the discharge originates or will 

originate. 

(b) Applications received without a 

State certification shall be forwarded 

by the Regional Administrator to the 

certifying State agency with a request 

that certification be granted or denied. 

(c) If State certification has not been 

received by the time the draft permit is 

prepared, the Regional Administrator 

shall send the certifying State agency: 

(1) A copy of a draft permit; 

(2) A statement that EPA cannot 

issue or deny the permit until the certifying State agency has granted or denied certification under §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 


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Environmental Protection Agency § 124.55 

(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. 

§ 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 §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 §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. 

§ 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 §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 

§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 

§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. 


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§ 124.56 40 CFR Ch. I (7–1–15 Edition) 

(f) Nothing in this section shall affect 

EPA’s obligation to comply with 

§122.47. See CWA section 301(b)(1)(C). 

[48 FR 14264, Apr. 1, 1983, as amended at 65 

FR 30912, May 15, 2000] 

§ 124.56 Fact sheets. 

(Applicable to State programs, see 

§123.25 (NPDES).) In addition to meeting the requirements of §124.8, NPDES 

fact sheets shall contain the following: 

(a) Any calculations or other necessary 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 §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 §122.44(e) of this chapter; 

(ii) Limitations on internal waste 

streams under §122.45(i) of this chapter; 

(iii) Limitations on indicator pollutants under §125.3(g) of this chapter; 

(iv) Limitations set on a case-by-case 

basis under §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 §122.4(i) of 

this chapter, or 

(vi) Waivers from monitoring requirements granted under §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 §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 §124.53. 

(e) For permits that include a sewage 

sludge land application plan under 40 

CFR 501.15(a)(2)(ix), a brief description 

of how each of the required elements of 

the land application plan are addressed 

in the permit. 

[48 FR 14264, Apr. 1, 1983, as amended at 49 

FR 38051, Sept. 26, 1984; 54 FR 18786, May 2, 

1989; 65 FR 30912, May 15, 2000] 

§ 124.57 Public notice. 

(a) Section 316(a) requests (applicable to 

State programs, see §123.25). In addition 

to the information required under 

§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 §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 §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] 

§ 124.58 [Reserved] 

§ 124.59 Conditions requested by the 

Corps of Engineers and other government agencies. 

(Applicable to State programs, see 

§123.25 (NPDES).) 

(a) If during the comment period for 

an NPDES draft permit, the District 

Engineer advises the Director in writing that anchorage and 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 


Lhorne on DSK5TPTVN1PROD with CFR
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Environmental Protection Agency § 124.60 

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 §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] 

§ 124.60 Issuance and effective date 

and stays of NPDES permits. 

In addition to the requirements of 

§§124.15, 124.16, and 124.19, the following 

provisions apply to NPDES permits: 

(a) Notwithstanding the provisions of 

§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 

that those conditions, even if contested, shall remain enforceable obligations of the discharger during administrative review. 

(b)(1) As provided in §124.16(a), if an 

appeal of an initial permit decision is 

filed under §124.19, the force and effect 

of the contested conditions of the final 

permit shall be stayed until final agency action under §124.19(k)(2). The Regional Administrator shall notify, in 

accordance with §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 §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 


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§ 124.61 40 CFR Ch. I (7–1–15 Edition) 

(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 

§124.16(c)(2), when an appeal is filed 

under §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, as amended at 78 

FR 5288, Jan. 25, 2013] 

§ 124.61 Final environmental impact 

statement. 

No final NPDES permit for a new 

source shall be issued until at least 30 

days after the date of issuance of a 

final environmental impact statement 

if one is required under 40 CFR 6.805. 

§ 124.62 Decision on variances. 

(Applicable to State programs, see 

§123.25 (NPDES).) 

(a) The Director may grant or deny 

requests for the following variances 

(subject to EPA objection under §123.44 

for State permits): 

(1) Extensions under CWA section 

301(i) based on delay in completion of a 

publicly owned treatment works; 

(2) After consultation with the Regional Administrator, extensions under 

CWA section 301(k) based on the use of 

innovative technology; or 

(3) Variances under CWA section 

316(a) for thermal pollution. 

(b) The State Director may deny, or 

forward to the Regional Administrator 

with a written concurrence, or submit 

to EPA without recommendation a 

completed request for: 

(1) A variance based on the economic 

capability of the applicant under CWA 

section 301(c); or 

(2) A variance based on water quality 

related effluent limitations under CWA 

section 302(b)(2). 

(c) The Regional Administrator may 

deny, forward, or submit to the EPA 

Office Director for Water Enforcement 

and Permits with a recommendation 

for approval, a request for a variance 

listed in paragraph (b) of this section 

that is forwarded by the State Director, or that is submitted to the Regional Administrator by the requester 

where EPA is the permitting authority. 

(d) The EPA Office Director for 

Water Enforcement and Permits may 

approve or deny any variance request 

submitted under paragraph (c) of this 

section. If the Office Director approves 

the variance, the Director may prepare 

a draft permit incorporating the variance. Any public notice of a draft permit for which a variance or modification has been approved or denied shall 

identify the applicable procedures for 

appealing that decision under §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 §124.64. 

[48 FR 14264, Apr. 1, 1983; 50 FR 6941, Feb. 19, 

1985, as amended at 51 FR 16030, Apr. 30, 1986; 

54 FR 256, 258, Jan. 4, 1989] 

§ 124.63 Procedures for variances 

when EPA is the permitting authority. 

(a) In States where EPA is the permit 

issuing authority and a request for a 

variance is filed as required by §122.21, 

the request shall be processed as follows: 


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Environmental Protection Agency § 124.64 

(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 §124.3 for 

issuance or renewal of that permit, but 

has not yet prepared a draft permit 

under §124.6 covering the discharge in 

question, the Administrator (or his delegate) shall give notice of a tentative 

decision on the request at the time the 

notice of the draft permit is prepared 

as specified in §124.10, unless this 

would significantly delay the processing of the permit. In that case the 

processing of the variance request may 

be separated from the permit in 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 §124.3 for issuance 

or renewal of that permit, but has not 

yet prepared a draft permit under 

§124.6 covering the discharge in question, the Regional Administrator, after 

obtaining any necessary concurrence of 

the EPA Deputy Assistant Administrator for Water Enforcement under 

§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 §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 §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 §124.8. However, if this will 

significantly delay the processing of 

the existing draft permit or the Regional Administrator, for other reasons, considers combining the variance 

request and the existing draft permit 

inadvisable, the request may be separated from the permit in accordance 

with paragraph (a)(3) of this section, 

and the administrative disposition of 

the existing draft permit shall proceed 

without delay. 

(3) If the permit has become final and 

no application under §124.3 concerning 

it is pending or if the variance request 

has been separated from a draft permit 

as described in paragraphs (a) (1) and 

(2) of this section, the Regional Administrator may prepare a new draft permit and give notice of it under §124.10. 

This draft permit shall be accompanied 

by the fact sheet required by §124.8 except that the only matters considered 

shall relate to the requested variance. 

[48 FR 14264, Apr. 1, 1983, as amended at 51 

FR 16030, Apr. 30, 1986] 

§ 124.64 Appeals of variances. 

(a) When a State issues a permit on 

which EPA has made a variance decision, separate appeals of the State permit and of the EPA variance decision 

are possible. If the owner or operator is 

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 §124.19. 

(c) Stays for section 301(g) variances. If 

an appeal is filed under §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 


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§ 124.65 40 CFR Ch. I (7–1–15 Edition) 

(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 §§124.16 and 124.60. 

[48 FR 14264, Apr. 1, 1983, as amended at 65 

FR 30912, May 15, 2000] 

§ 124.65 [Reserved] 

§ 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 §§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 §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 §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 

§124.15 for a term up to 5 years. This 

permit shall require achievement of 

the effluent limitations initially proposed for the thermal component of the 

discharge no later than the date otherwise required by law. However, the permit shall also afford the permittee an 

opportunity to file a demonstration 

under CWA section 316(a) after conducting such studies as are required 

under 40 CFR part 125, subpart H. A 

new discharger may not exceed the 

thermal effluent limitation which is 

initially proposed unless and until its 

CWA section 316(a) variance request is 

finally approved. 

(c) Any proceeding held under paragraph (a) of this section shall be publicly noticed as required by §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

§ 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 §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. 


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351 

Environmental Protection Agency § 124.204 

(b) What comprises the supplemental 

portion? The supplemental portion of a 

standardized permit consists of sitespecific 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 §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. 

§ 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

§ 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 

§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. 

§ 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 §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 

§124.204. 

ISSUING A STANDARDIZED PERMIT

§ 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 §270.275. 

(ii) Information submitted that is required under §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. 


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§ 124.205 40 CFR Ch. I (7–1–15 Edition) 

(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 §124.208 

instead of §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. 

(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 §124.208 instead of §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 §24.204(c) 

instead of §124.6. 

(10) Section 124.10 Public notice of 

permit actions and public comment period. Only §§124.10(c)(1)(ix) and 

(c)(1)(x)(A) apply to the RCRA standardized permit. Most of §124.10 does not 

apply to the RCRA standardized permit; §§124.207, 124.208, and 124.209 apply 

instead. 

§ 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 §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 

§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 §124.208 instead of §124.10. 

(f) Section124.14 Reopening of the 

public comment period. All paragraphs 


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Environmental Protection Agency § 124.207 

apply; however, in the context of the 

RCRA standardized permit, use the following reference: in §124.14(b)(1) use 

reference to §124.204 instead of §124.6; 

in §124.14(b)(3) use reference to §124.208 

instead of §124.10; in §124.14(c) use reference to §124.207 instead of §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 

§124.208 instead of §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 §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 

§124.209 instead of §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. 

§ 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 §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 

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

§ 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 


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§ 124.208 40 CFR Ch. I (7–1–15 Edition) 

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 §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. 

(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. 

§ 124.208 What are the opportunities 

for public comments and hearings 

on draft permit decisions? 

(a) The public notice that you issue 

under §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 

§124.207(a) and (b). The hearing must be 

conducted according to the procedures 

in §124.12(b), (c), and (d). 


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Environmental Protection Agency § 124.212 

(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. 

§ 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. 

§ 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 §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

§ 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. 

§ 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: 


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§ 124.213 40 CFR Ch. I (7–1–15 Edition) 

(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 §124.10(c)(1)(ix) 

and (x). 

§ 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 §124.212(b)(1)–(2). 

§ 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 

§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 

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 

§124.205 and §§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 

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. 


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Environmental Protection Agency Pt. 125 

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 OF PART 125—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? 

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 Existing Facilities Under Section 316(b) of 

the Clean Water Act 

125.90 Purpose of this subpart. 

125.91 Applicability. 

125.92 Special definitions. 

125.93 [Reserved] 

125.94 As an owner or operator of an existing facility, what must I do to comply 

with this subpart? 

125.95 Permit application and supporting information requirements. 

125.96 Monitoring requirements. 

125.97 Other permit reporting and recordkeeping requirements. 

125.98 Director requirements. 

125.99 [Reserved] 

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? 


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§ 125.1 40 CFR Ch. I (7–1–15 Edition) 

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 TechnologyBased Treatment Requirements Under Sections 301(b) 

and 402 of the Act 

§ 125.1 Purpose and scope. 

This subpart establishes criteria and 

standards for the imposition of technology-based treatment requirements 

in permits under section 301(b) of the 

Act, including the application of EPA 

promulgated effluent limitations and 

case-by-case determinations of effluent 

limitations under section 402(a)(1) of 

the Act. 

§ 125.2 Definitions. 

For the purposes of this part, any reference to the Act shall mean the Clean 

Water Act of 1977 (CWA). Unless otherwise noted, the definitions in parts 122, 

123 and 124 apply to this part. 

[45 FR 33512, May 19, 1980] 

§ 125.3 Technology-based treatment 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 §§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 §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 


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Environmental Protection Agency § 125.3 

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-bycase (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-bycase (BPJ) basis under Section 

402(a)(1)(B) of the Act after February 4, 

1987 establishing BAT effluent limitations, compliance is required as expeditiously as practicable but in no case 

later than 3 years after the date such 

limitations are established and in no 

case later than March 31, 1989. 

(v) For all pollutants which are neither toxic nor conventional pollutants, 

effluent limitations based on BAT— 

(A) For effluent limitations promulgated under section 304(b), compliance 

is required as expeditiously as practicable but in no case later than 3 

years after the date such limitations 

are established and in no case later 

than March 31, 1989. 

(B) For permits issued on a case-bycase (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 §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 technologybased treatment requirements are authorized by the Act and may be applied 

for under §124.53: 

(i) For POTW’s a section 301(i) extension of the secondary treatment deadline (subpart J); 

(ii) For dischargers other than 

POTW’s: 

(A) A section 301(i) extension of the 

BPT deadline (subpart J); and 

(B) A section 301(k) extension of the 

BAT deadline (subpart C). 

(c) Methods of imposing technologybased 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 §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 §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, 


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§ 125.3 40 CFR Ch. I (7–1–15 Edition) 

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 §125.3(c), the permit 

writer must consider the following factors: 

(1) For BPT requirements: (i) The total 

cost of application of technology in relation to the effluent reduction benefits to be achieved from such application; 

(ii) The age of equipment and facilities involved; 

(iii) The process employed; 

(iv) The engineering aspects of the 

application of various types of control 

techniques; 

(v) Process changes; and 

(vi) Non-water quality environmental 

impact (including energy requirements). 

(2) For BCT requirements: (i) The reasonableness of the relationship between 

the costs of attaining a reduction in effluent and the effluent reduction benefits derived; 

(ii) The comparison of the cost and 

level of reduction of such pollutants 

from the discharge from publicly 

owned treatment works to the cost and 

level of reduction of such pollutants 

from a class or category of industrial 

sources; 

(iii) The age of equipment and facilities involved; 

(iv) The process employed; 

(v) The engineering aspects of the application of various types of control 

techniques; 

(vi) Process changes; and 

(vii) Non-water quality environmental impact (including energy requirements). 

(3) For BAT requirements: (i) The age 

of equipment and facilities involved; 

(ii) The process employed; 

(iii) The engineering aspects of the 

application of various types of control 

techniques; 

(iv) Process changes; 

(v) The cost of achieving such effluent reduction; and 

(vi) Non-water quality environmental 

impact (including energy requirements). 

(e) Technology-based treatment requirements are applied prior to or at 

the point of discharge. 

(f) Technology-based treatment requirements cannot be satisfied through 

the use of ‘‘non-treatment’’ techniques 

such as flow augmentation and instream 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 


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Environmental Protection Agency § 125.10 

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 BATlevel 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 §124.56 

sets forth the basis for the limitation, 

including a finding that compliance 

with the limitation will result in BATlevel control of the toxic pollutant discharges identified in paragraph 

(h)(1)(ii)(B) of this section, and a finding that it would be economically or 

technically infeasible to directly limit 

the toxic pollutant(s). 

(2) The Director may set a permit 

limit for a conventional pollutant at a 

level more stringent than BCT when: 

(i) Effluent limitations guidelines 

specify the pollutant as an indicator 

for a hazardous substance, or 

(ii)(A) The limitation reflects BATlevel 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 §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 

§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 

§ 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. 


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§ 125.11 40 CFR Ch. I (7–1–15 Edition) 

§ 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 

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 

§ 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 


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Environmental Protection Agency § 125.31 

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-bycase basis to adjust the national limits, 

and make them either more or less 

stringent as they apply to certain dischargers within an industrial category 

or subcategory. This will only be done 

if data specific to that discharger indicates it presents factors fundamentally 

different from those considered by EPA 

in developing the limit at issue. Any 

interested person believing that factors 

relating to a discharger’s facilities, 

equipment, processes or other facilities 

related to the discharger are fundamentally different from the factors 

considered during development of the 

national limits may request a fundamentally different factors variance 

under §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] 

§ 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: 


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§ 125.32 40 CFR Ch. I (7–1–15 Edition) 

(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 §125.2(c)(2).] 

(2) The volume of the discharger’s 

process wastewater and effluent discharged; 

(3) Non-water quality environmental 

impact of control and treatment of the 

discharger’s raw waste load; 

(4) Energy requirements of the application of control and treatment technology; 

(5) Age, size, land availability, and 

configuration as they relate to the discharger’s equipment or facilities; processes employed; process changes; and 

engineering aspects of the application 

of control technology; 

(6) Cost of compliance with required 

control technololgy. 

(e) A variance request or portion of 

such a request under this section shall 

not be granted on any of the following 

grounds: 

(1) The infeasibility of installing the 

required waste treatment equipment 

within the time the Act allows. 

[Comment: Under this section a variance request may be approved if it is based on factors which relate to the discharger’s ability 

ultimately to achieve national limits but not 

if it is based on factors which merely affect 

the discharger’s ability to meet the statutory deadlines of sections 301 and 307 of the 

Act such as labor difficulties, construction 

schedules, or unavailability of equipment.] 

(2) The assertion that the national 

limits cannot be achieved with the appropriate waste treatment facilities installed, if such assertion is not based 

on factor(s) listed in paragraph (d) of 

this section; 

[Comment: Review of the Administrator’s action in promulgating national limits is 

available only through the judicial review 

procedures set forth in section 509(b) of the 

Act.] 

(3) The discharger’s ability to pay for 

the required waste treatment; or 

(4) The impact of a discharge on local 

receiving water quality. 

(f) Nothing in this section shall be 

construed to impair the right of any 

State or locality under section 510 of 

the Act to impose more stringent limitations than those required by Federal 

law. 

§ 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 §§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 §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 

§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] 


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Environmental Protection Agency § 125.57 

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. 

§ 125.56 Scope and purpose. 

This subpart establishes the criteria 

to be applied by EPA in acting on section 301(h) requests for modifications 

to the secondary treatment requirements. It also establishes special permit conditions which must be included 

in any permit incorporating a section 

301(h) modification of the secondary 

treatment requirements (‘‘section 

301(h) modified permit’’). 

§ 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 


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§ 125.58 40 CFR Ch. I (7–1–15 Edition) 

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 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 oneyear 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. 

§ 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. 


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Environmental Protection Agency § 125.58 

(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 

(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, 


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§ 125.59 40 CFR Ch. I (7–1–15 Edition) 

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 crosssectional annual mean salinities greater than twenty-five (25) parts per thousand. 

(w) Secondary removal equivalency 

means that the amount of a toxic pollutant removed by the combination of 

the applicant’s own treatment of its influent and pretreatment by its industrial users is equal to or greater than 

the amount of the toxic pollutant that 

would be removed if the applicant were 

to apply secondary treatment to its 

discharge where the discharge has not 

undergone pretreatment by the applicant’s industrial users. 

(x) Secondary treatment means the 

term as defined in 40 CFR part 133. 

(y) Shellfish, fish, and wildlife means 

any biological population or community that might be adversely affected 

by the applicant’s modified discharge. 

(z) Stressed waters means those ocean 

waters for which an applicant can demonstrate to the satisfaction of the Administrator, that the absence of a balanced indigenous population is caused 

solely by human perturbations other 

than the applicant’s modified discharge. 

(aa) Toxic pollutants means those substances listed in 40 CFR 401.15. 

(bb) Water quality criteria means scientific data and guidance developed 

and periodically updated by EPA under 

section 304(a)(1) of the Clean Water 

Act, which are applicable to marine 

waters. 

(cc) Water quality standards means applicable water quality standards which 

have been approved, left in effect, or 

promulgated under section 303 of the 

Clean Water Act. 

(dd) Zone of initial dilution (ZID) 

means the region of initial mixing surrounding or adjacent to the end of the 

outfall pipe or diffuser ports, provided 

that the ZID may not be larger than allowed by mixing zone restrictions in 

applicable water quality standards. 

§ 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. 


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Environmental Protection Agency § 125.59 

(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 

§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 

§125.63 during the life of the permit. 

Upon a demonstration meeting the 

statutory criteria and requirements of 

this subpart, the permit may be renewed under the applicable procedures 

of 40 CFR part 124. 

(d) Revisions to applications. (1) 

POTWs which submitted applications 

in accordance with the June 15, 1979, 

regulations (44 FR 34784) may revise 

their applications one time following a 

tentative decision to propose changes 

to treatment levels and/or outfall and 

diffuser location and design in accordance with §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 §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 §125.59(g) may submit a revised application in accordance with 

§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 §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 §§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 §§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 §§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 §125.60: (A) A 

description of the proposed treatment 

system which upgrades treatment to 

satisfy the requirements of §125.60. 

(B) A project plan, including a schedule for data collection and for achieving compliance with §125.60. The 

project plan shall include dates for design and construction of necessary facilities, submittal of influent/effluent 

data, and submittal of any other information necessary to demonstrate compliance with §125.60. The Administrator 

will review the project plan and may 

require revisions prior to authorizing 

submission of the additional information. 

(ii) For compliance with §125.65: (A) 

A determination of what approach will 

be used to achieve compliance with 

§125.65. 

(B) A project plan for achieving compliance. The project plan shall include 

any necessary data collection activities, submittal of additional information, and/or development of appropriate 

pretreatment limits to demonstrate 

compliance with §125.65. The Administrator will review the project plan and 

may require revisions prior to submission of the additional information. 


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§ 125.59 40 CFR Ch. I (7–1–15 Edition) 

(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 §§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 

§125.59(f)(3)(ii). If the applicant does 

not meet these schedules for compliance, EPA may deny the application on 

that basis. 

(f) Deadlines and distribution—(1) Applications. (i) The application for an 

original 301(h) permit for POTWs which 

directly discharges effluent into saline 

waters shall be submitted to the appropriate EPA Regional Administrator no 

later than December 29, 1982. 

(ii) The application for renewal of a 

301(h) modified permit shall be submitted no less than 180 days prior to 

the expiration of the existing permit, 

unless permission for a later date has 

been granted by the Administrator. 

(The Administrator shall not grant 

permission for applications to be submitted later than the expiration date 

of the existing permit.) 

(iii) A copy of the application shall 

be provided to the State and interstate 

agency(s) authorized to provide certification/concurrence under §§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 §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 

§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 §125.59(d)(3) 

must submit the revised application as 

described for new applications in 

§125.59(f)(1) concurrent with submission 

of the additional information under 

§125.59(g). 

(3) Deadline for additional information to demonstrate compliance with 

§§125.60 and 125.65. 

(i) A letter of intent required under 

§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 

§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 

§125.59(e)(1) shall ensure that the applicant meets all the requirements of 

§§125.60 and 125.65 by the following 

deadlines: 

(A) By August 9, 1996 for applicants 

that are not grandfathered under 

§125.59(j). 

(B) At the time of permit renewal or 

by August 9, 1996, whichever is later, 

for applicants that are grandfathered 

under §125.59(j). 

(4) State determination deadline. State 

determinations, as required by 

§§125.61(b)(2) and 125.64(b) shall be filed 

by the applicant with the appropriate 

Regional Administrator no later than 

90 days after submission of the revision 

to the 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. 


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Environmental Protection Agency § 125.60 

(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 

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 §§125.60 and 125.65, such 

schedule shall be in accordance with 

§125.59(f)(3)(ii). 

(i) Decisions on section 301(h) modifications. (1) The decision to grant or deny 

a section 301(h) modification shall be 

made by the Administrator and shall 

be based on the applicant’s demonstration that it has met all the requirements of §§125.59 through 125.68. 

(2) No section 301(h) modified permit 

shall be issued until the appropriate 

State certification/concurrence is 

granted or waived pursuant to §124.54 

or if the State denies certification/ 

concurrence pursuant to §124.54. 

(3) In the case of a modification 

issued to an applicant in a State administering an approved 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 §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 §125.60, the water quality criteria provisions of §125.62(a)(1), 

or §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 §§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. 

§ 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 


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§ 125.61 40 CFR Ch. I (7–1–15 Edition) 

(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 

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] 

§ 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 

§§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. 

§ 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 


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Environmental Protection Agency § 125.62 

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 

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 §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. 


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§ 125.63 40 CFR Ch. I (7–1–15 Edition) 

(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 

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. 

§ 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 


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Environmental Protection Agency § 125.63 

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 

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 §125.62(c); 

(ii) An improved discharge or altered 

discharge other than outfall relocation, 

biological monitoring shall provide 

baseline data on the current impact of 

the discharge and data which demonstrate, upon completion of improvements or alterations, that the requirements of §125.62(c) are met; or 

(iii) An improved or altered discharge 

involving outfall relocation, the biological monitoring shall: 

(A) Include the current discharge site 

until such discharge ceases; and 

(B) Provide baseline data at the relocation site to demonstrate the impact 

of the discharge and to provide the 

basis for demonstrating that requirements of §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 §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. 


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§ 125.64 40 CFR Ch. I (7–1–15 Edition) 

(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 §125.60. 

§ 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. 

§ 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. 


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Environmental Protection Agency § 125.66 

(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 §125.58(w). The NPDES 

permit shall include effluent limits 

based on the data from the secondary 

equivalency demonstration when those 

limits are more stringent than effluent 

limits based on State water quality 

standards or water quality criteria, if 

applicable, or are otherwise required to 

assure that all applicable environmental protection criteria are met. 

Once such effluent limits are established in the NPDES permit, the POTW 

may either establish local limits or 

perform additional treatment at the 

POTW or a combination of the two to 

achieve the permit limit. 

§ 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 §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 §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: 


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§ 125.67 40 CFR Ch. I (7–1–15 Edition) 

(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. 

§ 125.67 Increase in effluent volume or 

amount of pollutants discharged. 

(a) No modified discharge may result 

in any new or substantially increased 

discharges of the pollutant to which 

the modification applies above the discharge specified in the section 301(h) 

modified permit. 

(b) Where pollutant discharges are 

attributable in part to combined sewer 

overflows, the applicant shall minimize 

existing overflows and prevent increases in the amount of pollutants 

discharged. 

(c) The applicant shall provide projections of effluent volume and mass 

loadings for any pollutants to which 

the modification applies in 5-year increments for the design life of its facility. 

§ 125.68 Special conditions for section 

301(h) modified permits. 

Each section 301(h) modified permit 

issued shall contain, in addition to all 

applicable terms and conditions required by 40 CFR part 122, the following: 

(a) Effluent limitations and mass 

loadings which will assure compliance 

with the requirements of this subpart; 

(b) A schedule or schedules of compliance for: 

(1) Pretreatment program development required by §125.66(c); 

(2) Nonindustrial toxics control program required by §125.66(d); and 

(3) Control of combined sewer overflows required by §125.67. 

(c) Monitoring program requirements 

that include: 

(1) Biomonitoring requirements of 

§125.63(b); 

(2) Water quality requirements of 

§125.63(c); 

(3) Effluent monitoring requirements 

of §§125.60(b), 125.62(c) and (d), and 

125.63(d). 

(d) Reporting requirements that include the results of the monitoring programs required by paragraph (c) of this 

section at such frequency as prescribed 

in the approved monitoring program. 

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) 


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Environmental Protection Agency Pt. 125, Subpt. G, App. 

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. 

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 lll mg/L 

—Suspended solids lll mg/L 

—pH lll (range) 

b. Provide data on the following effluent 

characteristics for your current discharge as 

well as for the modified discharge if different 

from the current discharge: 

Flow (m3/sec): 

—minimum 

—average dry weather 

—average wet weather 

—maximum 

—annual average 

BOD5 (mg/L) for the following plant flows: 

—minimum 

—average dry weather 

—average wet weather 

—maximum 

—annual average 

Suspended solids (mg/L) for the following 

plant flows: 

—minimum 

—average dry weather 

—average wet weather 

—maximum 

—annual average 

Toxic pollutants and pesticides (ug/L): 

—list each toxic pollutant and pesticide 

—list each 304(a)(1) criteria and toxic pollutant and pesticide 

pH: 

—minimum 

—maximum 

Dissolved oxygen (mg/L, prior to 

chlorination) for the following plant flows: 

—minimum 

—average dry weather 

—average wet weather 

—maximum 

—annual average 

Immediate dissolved oxygen demand (mg/L). 

5. (L,S) Effluent Volume and Mass Emissions [40 CFR 125.62(e)(2) and 125.67] 

a. Provide detailed analyses showing projections of effluent volume (annual average, 

m3/sec) and mass loadings (mt/yr) of BOD5

and suspended solids for the design life of 

your treatment facility in five-year increments. If the application is based upon an 


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Pt. 125, Subpt. G, App. 40 CFR Ch. I (7–1–15 Edition) 

improved or altered discharge, the projections must be provided with and without the 

proposed improvements or alterations. 

b. Provide projections for the end of your 

five-year permit term for 1) the treatment 

facility contributing population and 2) the 

average daily total discharge flow for the 

maximum month of the dry weather season. 

6. (L,S) Average Daily Industrial Flow (m3/ 

sec). Provide or estimate the average daily 

industrial inflow to your treatment facility 

for the same time increments as in question 

II.A.5 above. [40 CFR 125.66] 

7. (L,S) Combined Sewer Overflows [40 CFR 

125.67(b)] 

a. Does (will) your treatment and collection system include combined sewer overflows? 

b. If yes, provide a description of your plan 

for minimizing combined sewer overflows to 

the receiving water. 

8. (L,S) Outfall/Diffuser Design. Provide 

the following data for your current discharge 

as well as for the modified discharge, if different from the current discharge: [40 CFR 

125.62(a)(1)] 

—Diameter and length of the outfall(s) (meters) 

—Diameter and length of the diffuser(s) (meters) 

—Angle(s) of port orientation(s) from horizontal (degrees) 

—Port diameter(s) (meters) 

—Orifice contraction coefficient(s), if known 

—Vertical distance from mean lower low 

water (or mean low water) surface and outfall port(s) centerline (meters) 

—Number of ports 

—Port spacing (meters) 

—Design flow rate for each port, if multiple 

ports are used (m3/sec) 

B. Receiving Water Description 

1. (L,S) Are you applying for a modification based on a discharge to the ocean [40 

CFR 125.58(n)] or to a saline estuary [40 CFR 

125.58(v)]? [40 CFR 125.59(a)]. 

2. (L,S) Is your current discharge or modified discharge to stressed waters as defined 

in 40 CFR 125.58(z)? If yes, what are the pollution sources contributing to the stress? [40 

CFR 125.59(b)(4) and 125.62(f)]. 

3. (L,S) Provide a description and data on 

the seasonal circulation patterns in the vicinity of your current and modified discharge(s). [40 CFR 125.62(a)]. 

4. (L) Oceanographic conditions in the vicinity of the current and proposed modified 

discharge(s). Provide data on the following: 

[40 CFR 125.62(a)]. 

—Lowest ten percentile current speed (m/ 

sec) 

—Predominant current speed (m/sec) and direction (true) during the four seasons 

—Period(s) of maximum stratification 

(months) 

—Period(s) of natural upwelling events (duration and frequency, months) 

—Density profiles during period(s) of maximum stratification 

5. (L,S) Do the receiving waters for your 

discharge contain significant amounts of effluent previously discharged from the treatment works for which you are applying for a 

section 301(h) modified permit? [40 CFR 

125.57(a)(9)] 

6. Ambient water quality conditions during 

the period(s) of maximum stratification: at 

the zone of initial dilution (ZID) boundary, 

at other areas of potential impact, and at 

control stations. [40 CFR 125.62(a)] 

a. (L) Provide profiles (with depth) on the 

following for the current discharge location 

and for the modified discharge location, if 

different from the current discharge: 

—BOD5 (mg/L) 

—Dissolved oxygen (mg/L) 

—Suspended solids (mg/L) 

—pH 

—Temperature (°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 (°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 


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Environmental Protection Agency Pt. 125, Subpt. G, App. 

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? 

2. (L,S) If yes, what is the water use classification for your discharge area? What are 

the applicable standards for your discharge 

area for each of the parameters for which a 

modification is requested? Provide a copy of 

all applicable water quality standards or a 

citation to where they can be found. 

3. (L,S) Will the modified discharge: [40 

CFR 125.59(b)(3)]. 

—Be consistent with applicable State coastal 

zone management program(s) approved 

under the Coastal Zone Management Act 

as amended, 16 U.S.C. 1451 et seq.? [See 16 

U.S.C. 1456(c)(3)(A)] 

—Be located in a marine sanctuary designated under Title III of the Marine Protection, Research, and Sanctuaries Act 

(MPRSA) as amended, 16 U.S.C. 1431 et seq., 

or in an estuarine sanctuary designated 

under the Coastal Zone Management Act 

as amended, 16 U.S.C. 1461? If located in a 

marine sanctuary designated under Title 

III of the MPRSA, attach a copy of any 

certification or permit required under regulations governing such marine sanctuary. 

[See 16 U.S.C. 1432(f)(2)] 

—Be consistent with the Endangered Species 

Act as amended, 16 U.S.C. 1531 et seq.? Provide the names of any threatened or endangered species that inhabit or obtain nutrients from waters that may be affected by 

the modified discharge. Identify any critical habitat that may be affected by the 

modified discharge and evaluate whether 

the modified discharge will affect threatened or endangered species or modify a 

critical habitat. [See 16 U.S.C. 1536(a)(2)]. 

4. (L,S) Are you aware of any State or Federal laws or regulations (other than the 

Clean Water Act or the three statutes identified in item 3 above) or an Executive Order 

which is applicable to your discharge? If yes, 

provide sufficient information to demonstrate that your modified discharge will 

comply with such law(s), regulation(s), or 

order(s). [40 CFR 125.59 (b)(3)]. 

III. TECHNICAL EVALUATION

A. Physical Characteristics of Discharge [40 

CFR 125.62(a)] 

1. (L,S) What is the critical initial dilution 

for your current and modified discharge(s) 

during (1) the period(s) of maximum stratification? and (2) any other critical period(s) 

of discharge volume/composition, water 

quality, biological seasons, or oceanographic 

conditions? 

2. (L,S) What are the dimensions of the 

zone of initial dilution for your modified discharge(s)? 

3. (L) What are the effects of ambient currents and stratification on dispersion and 

transport of the discharge plume/wastefield? 

4. (S) Will there be significant sedimentation of suspended solids in the vicinity of the 

modified discharge? 

5. (L) Sedimentation of suspended solids 

a. What fraction of the modified discharge’s suspended solids will accumulate 

within the vicinity of the modified discharge? 

b. What are the calculated area(s) and 

rate(s) of sediment accumulation within the 

vicinity of the modified discharge(s) (g/m2/ 

yr)? 

c. What is the fate of settleable solids 

transported beyond the calculated sediment 

accumulation area? 

B. Compliance with Applicable Water Quality 

Standards and CWA §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 


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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 

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. 


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Environmental Protection Agency Pt. 125, Subpt. G, App. 

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 

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)] 


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§ 125.70 40 CFR Ch. I (7–1–15 Edition) 

Subpart H—Criteria for Determining Alternative Effluent 

Limitations Under Section 

316(a) of the Act 

§ 125.70 Purpose and scope. 

Section 316(a) of the Act provides 

that: 

‘‘With respect to any point source otherwise subject to the provisions of section 301 

or section 306 of this Act, whenever the 

owner or operator of any such source, after 

opportunity for public hearing, can demonstrate to the 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.’’ 

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. 

§ 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). 

§ 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 


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Environmental Protection Agency § 125.73 

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. 

(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 

§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] 

§ 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 


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§ 125.80 40 CFR Ch. I (7–1–15 Edition) 

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. 

§ 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 

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 §125.81(a) must meet 

requirements determined on a case-bycase, 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. 

§ 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. 


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Environmental Protection Agency § 125.83 

§ 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. 

§ 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. 

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 §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 


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§ 125.83 40 CFR Ch. I (7–1–15 Edition) 

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 

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 


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Environmental Protection Agency § 125.84 

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] 

§ 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 

your facility to a maximum throughscreen 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), 


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§ 125.84 40 CFR Ch. I (7–1–15 Edition) 

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 §125.86(b); 

(7) You must implement the monitoring requirements specified in 

§125.87; 

(8) You must implement the recordkeeping requirements specified in 

§125.88. 

(c) Track I requirements for new facilities that withdraw 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 throughscreen 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 

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 §125.86(b)(2), (3), and (4); 

(6) You must implement the monitoring requirements specified in 

§125.87; 

(7) You must implement the recordkeeping requirements specified in 

§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 level comparable 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 


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Environmental Protection Agency § 125.86 

you were to implement the requirements of paragraphs (b)(1) and (2) of 

this section. The Director will consider 

information provided by any fishery 

management agency and may also consider 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 

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 §125.86(c). 

(4) You must implement the monitoring requirements specified in 

§125.87. 

(5) You must implement the recordkeeping requirements specified in 

§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; 79 FR 48429, Aug. 15, 

2014] 

§ 125.85 May alternative requirements 

be authorized? 

(a) Any interested person may request that alternative requirements 

less stringent than those specified in 

§125.84(a) through (e) be imposed in the 

permit. The Director may establish alternative requirements less stringent 

than the requirements of §125.84(a) 

through (e) only if: 

(1) There is an applicable requirement under §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] 

§ 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 


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§ 125.86 40 CFR Ch. I (7–1–15 Edition) 

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 §125.84(b); 

(ii) The Track I requirements for new 

facilities that withdraw greater than 2 

mgd and less than 10 mgd in §125.84(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 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 §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 §125.84(b)(1), you must 

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 §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 

§125.84(b)(3) or (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 §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: 


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Environmental Protection Agency § 125.86 

(i) Information to demonstrate 

whether or not you meet the criteria in 

§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) The owner or operator of a new 

facility required to install design and 

construction technologies and/or operational measures must develop a plan 

which explains the technologies and 

measures selected; this plan shall be 

based on information collected for the 

Source Water Biological Baseline Characterization required by 40 CFR 

122.21(r)(4). 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, and continuous operations of screens, etc. The 

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 speciesspecific 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 

§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 §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 

§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 


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§ 125.86 40 CFR Ch. I (7–1–15 Edition) 

that would be achieved through 

§125.84(b)(1) and (2); or 

(ii) [Reserved] 

(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 

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 §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 §125.84(b)(1) and (2) of 

Track I. The efficacy projection must 

include a site-specific evaluation of 


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Environmental Protection Agency § 125.87 

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) [Reserved] 

(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 §125.84(d), and 

that the operation of the technology 

has been optimized. 

(2)[Reserved] 

[66 FR 65338, Dec. 18, 2001, as amended at 79 

FR 48429, Aug. 15, 2014] 

§ 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 §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)(4) or the Comprehensive Demonstration Study required by 

§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)(4) or the Comprehensive Demonstration Study required by 

§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 the Director determines the 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 at least biweekly to 

monitor entrainment rates (simple 

enumeration) for each species over a 

24-hour period 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 

§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 

§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. 


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§ 125.88 40 CFR Ch. I (7–1–15 Edition) 

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 §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. 

[66 FR 65338, Dec. 18, 2001, as amended at 79 

FR 48429, Aug. 15, 2014] 

§ 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 §125.86, and 

any compliance monitoring data submitted under §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 §125.87(a); 

(2) Velocity and head loss monitoring 

records for each cooling water intake 

structure as required by §125.87(b); and 

(3) Records of visual or remote inspections as required in §125.87(c). 

§ 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)(4) and §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 §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 

§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 §125.84(b)(1), (2), (3), (4) 

and (5); §125.84(c)(1), (2), (3) and (4); or 

§125.84(d)(1) and (2). In determining 

compliance with proportional flow requirement in §§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. 

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 


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Environmental Protection Agency § 125.90 

below the surface, close to the deepest 

areas). 

(i) If an owner or operator of a facility chooses Track I, you must review 

the Design and Construction Technology Plan required in §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 §125.84(e). 

(ii) If an owner or operator of a facility chooses Track II, you must review 

the information submitted with the 

Comprehensive Demonstration Study 

required in §125.86(c)(2) and 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. In addition, you must review the 

Verification Monitoring Plan in 

§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 and operational 

measures meet the requirements in 

§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 §125.84(b)(1) and 

(2). 

(2) Monitoring conditions. At a minimum, the permit must require the permittee to perform the monitoring required in §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 

§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 §125.88. 

[66 FR 65338, Dec. 18, 2001, as amended at 79 

FR 48429, Aug. 15, 2014] 

Subpart J—Requirements Applicable to Cooling Water Intake 

Structures for Existing Facilities 

Under Section 316(b) of the 

Clean Water Act 

SOURCE: 79 FR 48430, Aug. 15, 2014, unless 

otherwise noted. 

§ 125.90 Purpose of this subpart. 

(a) This subpart establishes the section 316(b) requirements that apply to 

cooling water intake structures at existing facilities that are subject to this 

subpart. These requirements include a 

number of components. These include 

standards for minimizing adverse environmental impact associated with the 

use of cooling water intake structures 

and required procedures (e.g., permit 

application requirements, information 

submission requirements) for establishing the appropriate technology requirements at certain specified facilities as well as monitoring, reporting, 

and recordkeeping requirements to 

demonstrate compliance. In combination, these components represent the 

best technology available for minimizing adverse environmental impact 

associated with the use of cooling 

water intake structures at existing facilities. These requirements are to be 

established and implemented in National Pollutant Discharge Elimination 


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§ 125.91 40 CFR Ch. I (7–1–15 Edition) 

System (NPDES) permits issued under 

the Clean Water Act (CWA). 

(b) Cooling water intake structures 

not subject to requirements under 

§§125.94 through 125.99 or subparts I or 

N of this part must meet requirements 

under section 316(b) of the CWA established by the Director on a case-bycase, best professional judgment (BPJ) 

basis. 

(c) Nothing in this subpart shall be 

construed to preclude or deny the right 

under section 510 of the CWA of any 

State or political subdivision of a State 

or any interstate agency to adopt or 

enforce any requirement with respect 

to control or abatement of pollution 

that is more stringent than required by 

Federal law. 

Note to §125.90. This regulation does 

not authorize take, as defined by the 

Endangered Species Act, 16 U.S.C. 

1532(19). The U.S. Fish and Wildlife 

Service and National Marine Fisheries 

Service have determined that any impingement (including entrapment) or 

entrainment of Federally-listed species 

constitutes take. Such take may be authorized pursuant to the conditions of 

a permit issued under 16 U.S.C. 1539(a) 

or where consistent with an Incidental 

Take Statement contained in a Biological Opinion pursuant to 16 U.S.C. 

1536(o). 

§ 125.91 Applicability. 

(a) The owner or operator of an existing facility, as defined in §125.92(k), is 

subject to the requirements at §§125.94 

through 125.99 if: 

(1) The facility is a point source; 

(2) The facility uses or proposes to 

use one or more cooling water intake 

structures with a cumulative design intake flow (DIF) of greater than 2 million gallons per day (mgd) to withdraw 

water from waters of the United 

States; and 

(3) Twenty-five percent or more of 

the water the facility withdraws on an 

actual intake flow basis is used exclusively for cooling purposes. 

(b) 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 independent supplier withdraws 

water from waters of the United States 

but is not itself a new or existing facility as defined in subparts I or J of this 

part, except as provided in paragraphs 

(c) and (d) of this section. An owner or 

operator of an existing facility may 

not circumvent these requirements by 

creating arrangements to receive cooling water from an entity that is not 

itself a facility subject to subparts I or 

J of this part. 

(c) Obtaining cooling water from a 

public water system, using reclaimed 

water from wastewater treatment facilities or desalination plants, or recycling treated process wastewater effluent as cooling water does not constitute use of a cooling water intake 

structure for purposes of this subpart. 

(d) This subpart does not apply to offshore seafood processing facilities, offshore liquefied natural gas terminals, 

and offshore oil and gas extraction facilities that are existing facilities as 

defined in §125.92(k). The owners and 

operators of such facilities must meet 

requirements established by the Director on a case-by-case, best professional 

judgment (BPJ) basis. 

§ 125.92 Special definitions. 

In addition to the definitions provided in 40 CFR 122.2, the following special definitions apply to this subpart: 

(a) Actual Intake Flow (AIF) means 

the average volume of water withdrawn 

on an annual basis by the cooling 

water intake structures over the past 

three years. After October 14, 2019, Actual Intake Flow means the average volume of water withdrawn on an annual 

basis by the cooling water intake 

structures over the previous five years. 

Actual intake flow is measured at a location within the cooling water intake 

structure that the Director deems appropriate. The calculation of actual intake flow includes days of zero flow. 

AIF does not include flows associated 

with emergency and fire suppression 

capacity. 

(b) All life stages of fish and shellfish 

means eggs, larvae, juveniles, and 

adults. It does not include members of 

the infraclass Cirripedia in the subphylum Crustacea (barnacles), green 

mussels (Perna viridis), or zebra mussels 

(Dreissena polymorpha). The Director 

may determine that all life stages of 


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Environmental Protection Agency § 125.92 

fish and shellfish does not include 

other specified nuisance species. 

(c) Closed-cycle recirculating system 

means a system designed and properly 

operated using minimized make-up and 

blowdown flows withdrawn from a 

water of the United States to support 

contact or non-contact cooling uses 

within a facility, or a system designed 

to include certain impoundments. A 

closed-cycle recirculating system 

passes cooling water through the condenser and other components of the 

cooling system and reuses the water 

for cooling multiple times. 

(1) Closed-cycle recirculating system includes a facility with wet, dry, or hybrid cooling towers, a system of impoundments that are not waters of the 

United States, or any combination 

thereof. A properly operated and maintained closed-cycle recirculating system withdraws new source water 

(make-up water) only to replenish 

losses that have occurred due to blowdown, drift, and evaporation. If waters 

of the United States are withdrawn for 

purposes of replenishing losses to a 

closed-cycle recirculating system other 

than those due to blowdown, drift, and 

evaporation from the cooling system, 

the Director may determine a cooling 

system is a closed-cycle recirculating 

system if the facility demonstrates to 

the satisfaction of the Director that 

make-up water withdrawals attributed 

specifically to the cooling portion of 

the cooling system have been minimized. 

(2) Closed-cycle recirculating system 

also includes a system with impoundments of waters of the U.S. where the 

impoundment was constructed prior to 

October 14, 2014 and created for the 

purpose of serving as part of the cooling water system as documented in the 

project purpose statement for any required Clean Water Act section 404 permit obtained to construct the impoundment. In the case of an impoundment whose construction pre-dated the 

CWA requirement to obtain a section 

404 permit, documentation of the 

project’s purpose must be demonstrated to the satisfaction of the Director. This documentation could be 

some other license or permit obtained 

to lawfully construct the impoundment 

for the purposes of a cooling water system, or other such evidence as the Director finds necessary. For impoundments constructed in uplands or not in 

waters of the United States, no documentation of a section 404 or other permit is required. If waters of the United 

States are withdrawn for purposes of 

replenishing losses to a closed-cycle recirculating system other than those 

due to blowdown, drift, and evaporation from the cooling system, the Director may determine a cooling system 

is a closed-cycle recirculating system 

if the facility demonstrates to the satisfaction of the Director that make-up 

water withdrawals attributed specifically to the cooling portion of the cooling system have been minimized. 

(d) Contact cooling water means water 

used for cooling which comes into direct contact with any raw material, 

product, or byproduct. Examples of 

contact cooling water may include but 

are not limited to quench water at facilities, cooling water in a cracking 

unit, and cooling water directly added 

to food and agricultural products processing. 

(e) Cooling water means water used 

for contact or non-contact 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 obtained from 

a public water system, reclaimed water 

from wastewater treatment facilities 

or desalination plants, treated effluent 

from a manufacturing facility, or cooling water that is used in a manufacturing process either before or after it 

is used for cooling as process water, is 

not considered cooling water for the 

purposes of calculating the percentage 

of a facility’s intake flow that is used 

for cooling purposes in §125.91(a)(3). 

(f) Cooling water intake structure 

means the total physical structure and 

any associated constructed waterways 

used to withdraw cooling water from 

waters of the United States. The cooling water intake structure extends 

from the point at which water is first 

withdrawn from waters of the United 

States up to, and including the intake 

pumps. 


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§ 125.92 40 CFR Ch. I (7–1–15 Edition) 

(g) Design intake flow (DIF) means the 

value assigned during the cooling 

water intake structure design to the 

maximum instantaneous rate of flow of 

water the cooling water intake system 

is capable of withdrawing from a 

source waterbody. The facility’s DIF 

may be adjusted to reflect permanent 

changes to the maximum capabilities 

of the cooling water intake system to 

withdraw cooling water, including 

pumps permanently removed from 

service, flow limit devices, and physical limitations of the piping. DIF does 

not include values associated with 

emergency and fire suppression capacity or redundant pumps (i.e., back-up 

pumps). 

(h) Entrainment means any life stages 

of fish and shellfish in the intake water 

flow entering and passing through a 

cooling water intake structure and 

into a cooling water system, including 

the condenser or heat exchanger. 

Entrainable organisms include any organisms potentially subject to entrainment. For purposes of this subpart, entrainment excludes those organisms 

that are collected or retained by a 

sieve with maximum opening dimension of 0.56 inches. Examples of sieves 

meeting this definition include but are 

not limited to a 3⁄8 inch square mesh, or 

a 1⁄2 by 1⁄4 inch mesh. A facility must 

use the same mesh size when counting 

entrainment as is used when counting 

impingement. 

(i) Entrainment mortality means death 

as a result of entrainment through the 

cooling water intake structure, or 

death as a result of exclusion from the 

cooling water intake structure by fine 

mesh screens or other protective devices intended to prevent the passage 

of entrainable organisms through the 

cooling water intake structure. 

(j) Entrapment means the condition 

where impingeable fish and shellfish 

lack the means to escape the cooling 

water intake. Entrapment includes but 

is not limited to: Organisms caught in 

the bucket of a traveling screen and 

unable to reach a fish return; organisms caught in the forebay of a cooling water intake system without any 

means of being returned to the source 

waterbody without experiencing mortality; or cooling water intake systems 

where the velocities in the intake pipes 

or in any channels leading to the 

forebay prevent organisms from being 

able to return to the source waterbody 

through the intake pipe or channel. 

(k) 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. A facility built adjacent to another 

facility would be a new facility while 

the original facility would remain as 

an exiting facility for purposes of this 

subpart. A facility cannot both be an 

existing facility and a new facility as 

defined at §125.83. 

(l) Flow reduction means any modification to a cooling water intake 

structure or its operation that serves 

to reduce the volume of cooling water 

withdrawn. Examples include, but are 

not limited to, variable speed pumps, 

seasonal flow reductions, wet cooling 

towers, dry cooling towers, hybrid 

cooling towers, unit closures, or substitution for withdrawals by reuse of effluent from a nearby facility. 

(m) Fragile species means those species of fish and shellfish that are least 

likely to survive any form of impingement. For purposes of this subpart, 

fragile species are defined as those with 

an impingement survival rate of less 

than 30 percent, including but not limited to alewife, American shad, Atlantic herring, Atlantic long-finned squid, 

Atlantic menhaden, bay anchovy, 

blueback herring, bluefish, butterfish, 

gizzard shad, grey snapper, hickory 

shad, menhaden, rainbow smelt, round 

herring, and silver anchovy. 

(n) 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. For purposes of this subpart, 

impingement includes those organisms 

collected or retained on a sieve with 

maximum distance in the opening of 

0.56 inches, and excludes those organisms that pass through the sieve. Examples of sieves meeting this definition include but are not limited to a 3⁄8

inch square mesh, or a 1⁄2 by 1⁄4 inch 

mesh. This definition is intended to 

prevent the conversion of entrainable 


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Environmental Protection Agency § 125.92 

organisms to counts of impingement or 

impingement mortality. The owner or 

operator of a facility must use a sieve 

with the same mesh size when counting 

entrainment as is used when counting 

impingement. 

(o) Impingement mortality (IM) means 

death as a result of impingement. Impingement mortality also includes organisms removed from their natural 

ecosystem and lacking the ability to 

escape the cooling water intake system, and thus subject to inevitable 

mortality. 

(p) Independent 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 provides 

the cooling water to other facilities for 

their use, but may itself also use a portion of the water. An entity that provides potable water to residential populations (e.g., public water system) is 

not a supplier for purposes of this subpart. 

(q) Latent mortality means the delayed mortality of organisms that were 

initially alive upon being impinged or 

entrained but that do not survive the 

delayed effects of impingement and entrainment during an extended holding 

period. Delayed effects of impingement 

and entrainment include but are not 

limited to temperature change, physical stresses, and chemical stresses. 

(r) Minimize means to reduce to the 

smallest amount, extent, or degree reasonably possible. 

(s) Modified traveling screen means a 

traveling water screen that incorporates measures protective of fish and 

shellfish, including but not limited to: 

Screens with collection buckets or 

equivalent mechanisms designed to 

minimize turbulence to aquatic life; 

addition of a guard rail or barrier to 

prevent loss of fish from the collection 

system; replacement of screen panel 

materials with smooth woven mesh, 

drilled mesh, molded mesh, or similar 

materials that protect fish from descaling and other abrasive injury; continuous or near-continuous rotation of 

screens and operation of fish collection 

equipment to ensure any impinged organisms are recovered as soon as practical; a low pressure wash or gentle 

vacuum to remove fish prior to any 

high pressure spray to remove debris 

from the screens; and a fish handling 

and return system with sufficient 

water flow to return the fish directly 

to the source water in a manner that 

does not promote predation or re-impingement of the fish, or require a 

large vertical drop. The Director may 

approve of fish being returned to water 

sources other than the original source 

water, taking into account any recommendations from the Services with 

respect to endangered or threatened 

species. Examples of modified traveling 

screens include, but are not limited to: 

Modified Ristroph screens with a fish 

handling and return system, dual flow 

screens with smooth mesh, and rotary 

screens with fish returns or vacuum returns. 

(t) Moribund means dying; close to 

death. 

(u) New unit means a new ‘‘standalone’’ unit at an existing facility 

where construction of the new unit begins after October 14, 2014 and that does 

not otherwise meet the definition of a 

new facility at §125.83 or is not otherwise already subject to subpart I of 

this part. A stand-alone unit is a separate unit that is added to a facility for 

either the same general industrial operation or another purpose. A new unit 

may have its own dedicated cooling 

water intake structure, or the new unit 

may use an existing or modified cooling water intake structure. 

(v) Offshore velocity cap means a velocity cap located a minimum of 800 

feet from the shoreline. A velocity cap 

is an open intake designed to change 

the direction of water withdrawal from 

vertical to horizontal, thereby creating 

horizontal velocity patterns that result 

in avoidance of the intake by fish and 

other aquatic organisms. For purposes 

of this subpart, the velocity cap must 

use bar screens or otherwise exclude 

marine mammals, sea turtles, and 

other large aquatic organisms. 

(w) Operational measure means a 

modification to any operation that 

serves to minimize impact to all life 

stages of fish and shellfish from the 

cooling water intake structure. Examples of operational measures include, but 

are not limited to, more frequent rotation of traveling screens, use of a low 


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§ 125.93 40 CFR Ch. I (7–1–15 Edition) 

pressure wash to remove fish prior to 

any high pressure spray to remove debris, maintaining adequate volume of 

water in a fish return, and debris minimization measures such as air sparging 

of intake screens and/or other measures taken to maintain the design intake velocity. 

(x) Social benefits means the increase 

in social welfare that results from taking an action. Social benefits include 

private benefits and those benefits not 

taken into consideration by private decision makers in the actions they 

choose to take, including effects occurring in the future. Benefits valuation 

involves measuring the physical and biological effects on the environment 

from the actions taken. Benefits are 

generally treated one or more of three 

ways: A narrative containing a qualitative discussion of environmental effects, a quantified analysis expressed in 

physical or biological units, and a monetized benefits analysis in which dollar 

values are applied to quantified physical or biological units. The dollar values in a social benefits analysis are 

based on the principle of willingnessto-pay (WTP), which captures monetary benefits by measuring what individuals are willing to forgo in order to 

enjoy a particular benefit. Willingnessto-pay for nonuse values can be measured using benefits transfer or a stated 

preference survey. 

(y) Social costs means costs estimated 

from the viewpoint of society, rather 

than individual stakeholders. Social 

cost represents the total burden imposed on the economy; it is the sum of 

all opportunity costs incurred associated with taking actions. These opportunity costs consist of the value lost to 

society of all the goods and services 

that will not be produced and consumed as a facility complies with permit requirements, and society reallocates resources away from other production activities and towards minimizing adverse environmental impacts. 

§ 125.93 [Reserved] 

§ 125.94 As an owner or operator of an 

existing facility, what must I do to 

comply with this subpart? 

(a) Applicable Best Technology Available for Minimizing Adverse Environmental Impact (BTA) standards. (1) On or 

after October 14, 2014, the owner or operator of an existing facility with a cumulative design intake flow (DIF) 

greater than 2 mgd is subject to the 

BTA (best technology available) standards for impingement mortality under 

paragraph (c) of this section, and entrainment under paragraph (d) of this 

section including any measures to protect Federally-listed threatened and 

endangered species and designated critical habitat established under paragraph (g) of this section. 

(2) Prior to October 14, 2014, the owner 

or operator of an existing facility with 

a cumulative design intake flow (DIF) 

greater than 2 mgd is subject to sitespecific impingement mortality and 

entrainment requirements as determined by the Director on a case-bycase Best Professional Judgment basis. 

The Director’s BTA determination may 

be based on consideration of some or 

all of the factors at §125.98(f)(2) and (3) 

and the requirements of §125.94(c). If 

the Director requires additional information to make the decision on what 

BTA requirements to include in the applicant’s permit for impingement mortality and entrainment, the Director 

should consider whether to require any 

of the information at 40 CFR 122.21(r). 

(3) The owner or operator of a new 

unit is subject to the impingement 

mortality and entrainment standards 

under paragraph (e) of this section for 

all cooling water intake flows used by 

the new unit. The remainder of the existing facility is subject to the impingement mortality standard under 

paragraph (c) of this section, and the 

entrainment standard under paragraph 

(d) of this section. The entire existing 

facility including any new units is subject to any measures to protect Federally-listed threatened and endangered 

species and designated critical habitat 

established under paragraph (g) of this 

section. 

(b) Compliance with BTA standards. (1) 

Aligning compliance deadlines for impingement mortality and entrainment requirements. After issuance of a final 

permit that establishes the entrainment requirements under §125.94(d), 

the owner or operator of an existing facility must comply with the impingement mortality standard in §125.94(c) 

as soon as practicable. The Director 


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Environmental Protection Agency § 125.94 

may establish interim compliance 

milestones in the permit. 

(2) After issuance of a final permit establishing the entrainment requirements under §125.94(d), the owner or 

operator of an existing facility must 

comply with the entrainment standard 

as soon as practicable, based on a 

schedule of requirements established 

by the Director. The Director may establish interim compliance milestones 

in the permit. 

(3) The owner or operator of a new 

unit at an existing facility must comply with the BTA standards at 

§125.94(e) with respect to the new unit 

upon commencement of the new unit’s 

operation. 

(c) BTA Standards for Impingement 

Mortality. The owner or operator of an 

existing facility must comply with one 

of the alternatives in paragraphs (c)(1) 

through (7) of this section, except as 

provided in paragraphs (c)(11) or (12) of 

this section, when approved by the Director. In addition, a facility may also 

be subject to the requirements of paragraphs (c)(8), (c)(9), or (g) of this section if the Director requires such additional measures. 

(1) Closed-cycle recirculating system. A 

facility must operate a closed-cycle recirculating system as defined at 

§125.92(c). In addition, you must monitor the actual intake flows at a minimum frequency of daily. The monitoring must be representative of normal operating conditions, and must include measuring cooling water withdrawals, make-up water, and blow 

down volume. In lieu of daily intake 

flow monitoring, you may monitor 

your cycles of concentration at a minimum frequency of daily; or 

(2) 0.5 Feet Per Second Through-Screen 

Design Velocity. A facility must operate 

a cooling water intake structure that 

has a maximum design through-screen 

intake velocity of 0.5 feet per second. 

The owner or operator of the facility 

must submit information to the Director that demonstrates that the maximum design intake velocity as water 

passes through the structural components of a screen measured perpendicular to the screen mesh does not exceed 0.5 feet per second. The maximum 

velocity must be achieved under all 

conditions, including during minimum 

ambient source water surface elevations (based on BPJ using 

hydrological data) and during periods 

of maximum head loss across the 

screens or other devices during normal 

operation of the intake structure; or 

(3) 0.5 Feet Per Second Through-Screen 

Actual Velocity. A facility must operate 

a cooling water intake structure that 

has a maximum through-screen intake 

velocity of 0.5 feet per second. The 

owner or operator of the facility must 

submit information to the Director 

that demonstrates that the maximum 

intake velocity as water passes 

through the structural components of a 

screen measured perpendicular to the 

screen mesh does not exceed 0.5 feet per 

second. The maximum velocity must 

be achieved under all conditions, including during minimum ambient 

source water surface elevations (based 

on best professional judgment using 

hydrological data) and during periods 

of maximum head loss across the 

screens or other devices during normal 

operation of the intake structure. The 

Director may authorize the owner or 

operator of the facility to exceed the 

0.5 fps velocity at an intake for brief 

periods for the purpose of maintaining 

the cooling water intake system, such 

as backwashing the screen face. If the 

intake does not have a screen, the maximum intake velocity perpendicular to 

the opening of the intake must not exceed 0.5 feet per second during minimum ambient source water surface 

elevations. In addition, you must monitor the velocity at the screen at a 

minimum frequency of daily. In lieu of 

velocity monitoring at the screen face, 

you may calculate the through-screen 

velocity using water flow, water depth, 

and the screen open areas; or 

(4) Existing offshore velocity cap. A facility must operate an existing offshore 

velocity cap as defined at §125.92(v) 

that was installed on or before October 

14, 2014. Offshore velocity caps installed 

after October 14, 2014 must make either 

a demonstration under paragraph (c)(6) 

of this section or meet the performance 

standard under paragraph (c)(7) of this 

section. In addition, you must monitor 

your intake flow at a minimum frequency of daily; or 

(5) Modified traveling screens. A facility must operate a modified traveling 


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§ 125.94 40 CFR Ch. I (7–1–15 Edition) 

screen that the Director determines 

meets the definition at §125.92(s) and 

that, after review of the information 

required in the impingement technology 

performance optimization study at 40 

CFR 122.21(r)(6)(i), the Director determines is the best technology available 

for impingement reduction at the site. 

As the basis for the Director’s determination, the owner or operator of the 

facility must demonstrate the technology is or will be optimized to minimize impingement mortality of all 

non-fragile species. The Director must 

include verifiable and enforceable permit conditions that ensure the technology will perform as demonstrated; 

or 

(6) Systems of technologies as the BTA 

for impingement mortality. A facility 

must operate a system of technologies, 

management practices, and operational 

measures, that, after review of the information required in the impingement 

technology performance optimization 

study at 40 CFR 122.21(r)(6)(ii), the Director determines is the best technology available for impingement reduction at your cooling water intake 

structures. As the basis for the Director’s determination, the owner or operator of the facility must demonstrate 

the system of technology has been optimized to minimize impingement mortality of all non-fragile species. In addition, the Director’s decision will be 

informed by comparing the impingement mortality performance data 

under 40 CFR 122.21(r)(6)(ii)(D) to the 

impingement mortality performance 

standard that would otherwise apply 

under paragraph (c)(7) of this section. 

The Director must include verifiable 

and enforceable permit conditions that 

ensure the system of technologies will 

perform as demonstrated; or 

(7) Impingement mortality performance 

standard. A facility must achieve a 12- 

month impingement mortality performance standard of all life stages of 

fish and shellfish of no more than 24 

percent mortality, including latent 

mortality, for all non-fragile species 

together that are collected or retained 

in a sieve with maximum opening dimension of 0.56 inches and kept for a 

holding period of 18 to 96 hours. The Director may, however, prescribe an alternative holding period. You must 

conduct biological monitoring at a 

minimum frequency of monthly to 

demonstrate your impingement mortality performance. Each month, you 

must use all of the monitoring data 

collected during the previous 12 

months to calculate the 12-month survival percentage. The 12-month impingement mortality performance 

standard is the total number of fish 

killed divided by the total number of 

fish impinged over the course of the entire 12 months. The owner or operator 

of the facility must choose whether to 

demonstrate compliance with this requirement for the entire facility, or for 

each individual cooling water intake 

structure for which this paragraph 

(c)(7) is the selected impingement mortality requirement. 

(8) Additional measures for shellfish. 

The owner or operator must comply 

with any additional measures, such as 

seasonal deployment of barrier nets, 

established by the Director to protect 

shellfish. 

(9) Additional measures for other species. The owner or operator must comply with any additional measures, established by the Director, to protect 

fragile species. 

(10) Reuse of other water for cooling 

purposes. This impingement mortality 

standard does not apply to that portion 

of cooling water that is process water, 

gray water, waste water, reclaimed 

water, or other waters reused as cooling water in lieu of water obtained by 

marine, estuarine, or freshwater intakes. 

(11) De minimis rate of impingement. In 

limited circumstances, rates of impingement may be so low at a facility 

that additional impingement controls 

may not be justified. The Director, 

based on review of site-specific data 

submitted under 40 CFR 122.21(r), may 

conclude that the documented rate of 

impingement at the cooling water intake is so low that no additional controls are warranted. For threatened or 

endangered species, all unauthorized 

take is prohibited by the Endangered 

Species Act of 1973 (16 U.S.C. 1531 et 

seq.). Notice of a determination that no 

additional impingement controls are 

warranted must be included in the 

draft or proposed permit and the Director’s response to all comments on this 


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Environmental Protection Agency § 125.94 

determination must be included in the 

record for the final permit. 

(12) Low capacity utilization power generating units. If an existing facility has 

a cooling water intake structure used 

for one or more existing electric generating units, each with an annual average capacity utilization rate of less 

than 8 percent averaged over a 24- 

month block contiguous period, the 

owner or operator may request the Director consider less stringent requirements for impingement mortality for 

that cooling water intake structure. 

The Director may, based on review of 

site-specific data concerning cooling 

water system data under 40 CFR 

122.21(r)(5), establish the BTA standards for impingement mortality for 

that cooling water intake structure 

that are less stringent than paragraphs 

(c)(1) through (7) of this section. 

(d) BTA standards for entrainment for 

existing facilities. The Director must establish BTA standards for entrainment 

for each intake on a site-specific basis. 

These standards must reflect the Director’s determination of the maximum 

reduction in entrainment warranted 

after consideration of the relevant factors as specified in §125.98. The Director may also require periodic reporting 

on your progress towards installation 

and operation of site-specific entrainment controls. These reports may include updates on planning, design, and 

construction or other appropriate topics as required by the Director. If the 

Director determines that the site-specific BTA standard for entrainment 

under this paragraph requires performance equivalent to a closed-cycle recirculating system as defined at §125.92(c), 

then under §125.94(c)(1) your facility 

will comply with the impingement 

mortality standard for that intake. 

(e) BTA standards for impingement 

mortality and entrainment for new units 

at existing facilities. The owner or operator of a new unit at an existing facility must achieve the impingement 

mortality and entrainment standards 

provided in either paragraph (e)(1) or 

(2) of this section, except as provided in 

paragraph (e)(4) of this section, for 

each cooling water intake structure 

used to provide cooling water to the 

new unit. 

(1) Requirements for new units. The 

owner or operator of the facility must 

reduce the design intake flow for the 

new unit, at a minimum, to a level 

commensurate with that which can be 

attained by the use of a closed-cycle recirculating system for the same level 

of cooling for the new unit. 

(2) Alternative requirements for new 

units. The owner or operator of a new 

unit at an existing facility must demonstrate to the Director that the technologies and operational measures employed will reduce the level of adverse 

environmental impact from any cooling water intake structure used to supply cooling water to the new unit to a 

comparable level to that which would 

be achieved under §125.94(e)(1). This 

demonstration must include a showing 

that the entrainment reduction is 

equivalent to 90 percent or greater of 

the reduction that could be achieved 

through compliance with §125.94(e)(1). 

In addition 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 under the requirements of §125.94(e)(1). 

(3) This standard does not apply to: 

(i) Process water, gray water, waste 

water, reclaimed water, or other 

waters reused as cooling water in lieu 

of water obtained by marine, estuarine, 

or freshwater intakes; 

(ii) Cooling water used by manufacturing facilities for contact cooling 

purposes; 

(iii) Portions of those water withdrawals for auxiliary plant cooling uses 

comprising less than two mgd of the facility’s flow; and 

(iv) Any quantity of emergency backup water flows. 

(4) The owner or operator of a facility 

must comply with any alternative requirements established by the Director 

pursuant to §125.98(b)(7). 

(5) For cooling water flows excluded 

by paragraph (e)(3) of this section, the 

Director may establish additional BTA 

standards for impingement mortality 

and entrainment on a site-specific 

basis. 


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§ 125.95 40 CFR Ch. I (7–1–15 Edition) 

(f) Nuclear facilities. If the owner or 

operator of a nuclear facility demonstrates to the Director, upon the Director’s consultation with the Nuclear 

Regulatory Commission, the Department of Energy, or the Naval Nuclear 

Propulsion Program, that compliance 

with this subpart would result in a conflict with a safety requirement established by the Commission, the Department, or the Program, 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 Commission’s, the Department’s, or the Program’s safety requirement. 

(g) Additional measures to protect Federally-listed threatened and endangered 

species and designated critical habitat. 

The Director may establish in the permit additional control measures, monitoring requirements, and reporting requirements that are designed to minimize incidental take, reduce or remove 

more than minor detrimental effects to 

Federally-listed species and designated 

critical habitat, or avoid jeopardizing 

Federally-listed species or destroying 

or adversely modifying designated critical habitat (e.g., prey base). Such control measures, monitoring requirements, and reporting requirements 

may include measures or requirements 

identified by an appropriate Field Office of the U.S. Fish and Wildlife Service and/or Regional Office of the National Marine Fisheries Service during 

the 60 day review period pursuant to 

§125.98(h) or the public notice and comment period pursuant to 40 CFR 124.10. 

Where established in the permit by the 

Director, the owner or operator must 

implement any such requirements. 

(h) Interim BTA requirements. An 

owner or operator of a facility may be 

subject to interim BTA requirements 

established by the Director in the permit on a site-specific basis. 

(i) More stringent standards. The Director must establish more stringent 

requirements as best technology available for minimizing adverse environmental impact if the Director determines that compliance with the applicable requirements of this section 

would not meet the requirements of applicable State or Tribal law, including 

compliance with applicable water quality standards (including designated 

uses, criteria, and antidegradation requirements). 

(j) The owner or operator of a facility 

subject to this subpart must: 

(1) Submit and retain permit application and supporting information as 

specified in §125.95; 

(2) Conduct compliance monitoring 

as specified in §125.96; and 

(3) Report information and data and 

keep records as specified in §125.97. 

§ 125.95 Permit application and supporting information requirements. 

(a) Permit application submittal timeframe for existing facilities. (1) The owner 

or operator of a facility subject to this 

subpart whose currently effective permit expires after July 14, 2018, must 

submit to the Director the information 

required in the applicable provisions of 

40 CFR 122.21(r) when applying for a 

subsequent permit (consistent with the 

owner or operator’s duty to reapply 

pursuant to 40 CFR 122.21(d)). 

(2) The owner or operator of a facility 

subject to this subpart whose currently 

effective permit expires prior to or on 

July 14, 2018, may request the Director 

to establish an alternate schedule for 

the submission of the information required in 40 CFR 122.21(r) when applying for a subsequent permit (consistent 

with the owner or operator’s duty to 

reapply pursuant to 40 CFR 122.21(d)). If 

the owner or operator of the facility 

demonstrates that it could not develop 

the required information by the applicable date for submission, the Director 

must establish an alternate schedule 

for submission of the required information. 

(3) The Director may waive some or 

all of the information requirements of 

40 CFR 122.21(r) if the intake is located 

in a manmade lake or reservoir and the 

fisheries are stocked and managed by a 

State or Federal natural resources 

agency or the equivalent. If the manmade lake or reservoir contains Federally-listed threatened and endangered 

species, or is designated critical habitat, such a waiver shall not be granted. 

(b) Permit application submittal timeframe for new units. For the owner or 

operator of any new unit at an existing 

facility subject to this subpart: 


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Environmental Protection Agency § 125.96 

(1) You must submit the information 

required in 40 CFR 122.21(r) for the new 

unit to the Director no later than 180 

days before the planned commencement of cooling water withdrawals for 

the operation of the new unit. If you 

have already submitted the required 

information in your previous permit 

application, you may choose to submit 

an update to the required information. 

(2) The owner or operator is encouraged to submit their permit applications well in advance of the 180 day requirement to avoid delay. 

(c) Permit applications. After the initial submission of the 40 CFR 122.21(r) 

permit application studies after October 14, 2014, the owner or operator of a 

facility may, in subsequent permit applications, request to reduce the information required, if conditions at the 

facility and in the waterbody remain 

substantially unchanged since the previous application so long as the relevant previously submitted information remains representative of current 

source water, intake structure, cooling 

water system, and operating conditions. Any habitat designated as critical or species listed as threatened or 

endangered after issuance of the current permit whose range of habitat or 

designated critical habit includes 

waters where a facility intake is located constitutes potential for a substantial change that must be addressed 

by the owner/operator in subsequent 

permit applications, unless the facility 

received an exemption pursuant to 16 

U.S.C. 1536(o) or a permit pursuant to 

16 U.S.C. 1539(a) or there is no reasonable expectation of take. The owner or 

operator of a facility must submit its 

request for reduced cooling water intake structure and waterbody application information to the Director at 

least two years and six months prior to 

the expiration of its NPDES permit. 

The owner or operator’s request must 

identify each element in this subsection that it determines has not substantially changed since the previous 

permit application and the basis for 

the determination. The Director has 

the discretion to accept or reject any 

part of the request. 

(d) The Director has the discretion to 

request additional information to supplement the permit application, including a request to inspect a facility. 

(e) Permit application records. The 

owner or operator of a facility must 

keep records of all submissions that 

are part of its permit application until 

the subsequent permit is issued to document compliance with the requirements of this section. If the Director 

approves a request for reduced permit 

application studies under §125.95(a) or 

(c) or §125.98(g), the owner or operator 

of a facility must keep records of all 

submissions that are part of the previous permit application until the subsequent permit is issued. 

(f) In addition, in developing its permit application, the owner or operator 

of an existing facility or new unit at an 

existing facility must, based on readily 

available information at the time of 

the permit application, instead of the 

information required at §122.21(r)(4)(vi) 

of this chapter identify all Federallylisted threatened and endangered species and/or designated critical habitat 

that are or may be present in the action area. 

(g) Certification. The owner or operator of a facility must certify that its 

permit application is true, accurate 

and complete pursuant to §122.22(d) of 

this chapter. 

§ 125.96 Monitoring requirements. 

(a) Monitoring requirements for impingement mortality for existing facilities. 

The Director may establish monitoring 

requirements in addition to those specified at §125.94(c), including, for example, biological monitoring, intake velocity and flow measurements. If the 

Director establishes such monitoring, 

the specific protocols will be determined by the Director. 

(b) Monitoring requirements for entrainment for existing facilities. Monitoring 

requirements for entrainment will be 

determined by the Director on a sitespecific basis, as appropriate, to meet 

requirements under §125.94(d). 

(c) Additional monitoring requirements 

for existing facilities. The Director may 

require additional monitoring for impingement or entrainment including, 

but not limited to, the following: 

(1) The Director may require additional monitoring if there are changes 

in operating conditions at the facility 


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§ 125.96 40 CFR Ch. I (7–1–15 Edition) 

or in the source waterbody that warrant a re-examination of the operational conditions identified at 40 CFR 

122.21(r). 

(2) The Director may require additional monitoring for species not subject to the BTA requirements for impingement mortality at §125.95(c). Such 

monitoring requirements will be determined by the Director on a site-specific 

basis. 

(d) Monitoring requirements for new 

units at existing facilities. Monitoring is 

required to demonstrate compliance 

with the requirements of §125.94(e). 

(1) The Director may establish monitoring requirements for impingement, 

impingement mortality, and entrainment of the 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). 

Monitoring methods used must be consistent with those used for the Source 

Water Baseline Biological Characterization at 40 CFR 122.21(r)(4). If the Director establishes such monitoring requirements, the frequency of monitoring and specific protocols will be determined by the Director. 

(2) If your facility is subject to the 

requirements of §125.94(e)(1) or (2), the 

frequency of flow monitoring and velocity monitoring must be daily and 

must be representative of normal operating conditions. Flow monitoring 

must include measuring cooling water 

withdrawals, make-up water, and blowdown volume. The Director may require additional monitoring necessary 

to demonstrate compliance with 

§125.94(e). 

(3) If your facility is subject to the 

requirements of §125.94(e)(2), you must 

monitor to demonstrate achievement 

of reductions commensurate with a 

closed-cycle recirculating system. You 

must monitor entrainable organisms at 

a proximity to the intake that is representative of the entrainable organisms in the absence of the intake 

structure. You must also monitor the 

latent entrainment mortality in front 

of the intake structure. Mortality after 

passing the cooling water intake structure must be counted as 100 percent 

mortality unless you have demonstrated to the approval of the Director that the mortality for each species 

is less than 100 percent. Monitoring 

must be representative of the cooling 

water intake when the structure is in 

operation. In addition, sufficient samples must be collected to allow for calculation of annual average entrainment levels of all life stages of fish and 

shellfish. Specific monitoring protocols 

and frequency of monitoring will be determined by the Director. You must 

follow the monitoring frequencies identified by the Director for at least two 

years after the initial permit issuance. 

After that time, the Director may approve a request for less frequent monitoring in the remaining years of the 

permit term and when a subsequent 

permit is reissued. The monitoring 

must measure the total count of 

entrainable organisms or density of organisms, unless the Director approves 

of a different metric for such measurements. In addition, you must monitor 

the AIF for each intake. The AIF must 

be measured at the same time as the 

samples of entrainable organisms are 

collected. The Director may require additional monitoring necessary to demonstrate compliance with §125.94(e). 

(4) The Director may require additional monitoring for impingement or 

entrainment at the cooling water intake structure used by a new unit including, but not limited to, the following: 

(i) The Director may require additional monitoring if there are changes 

in operating conditions at the facility 

or in the source waterbody that warrant a re-examination of the operational conditions identified at 40 CFR 

122.21(r). 

(ii) The Director may require additional monitoring for species not subject to the BTA requirements for impingement mortality at §125.95(c). Such 

monitoring requirements will be determined by the Director on a site-specific 

basis. 

(e) 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 such inspections at least 

weekly to ensure that any technologies 

operated to comply with §125.94 are 

maintained and operated to function as 


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Environmental Protection Agency § 125.98 

designed including those installed to 

protect Federally-listed threatened or 

endangered species or designated critical habitat. The Director may establish alternative procedures if this requirement is not feasible (e.g., an offshore intake, velocity cap, or during 

periods of inclement weather). 

(f) Request for reduced monitoring. For 

facilities that are subject to 

§125.94(c)(7) and where the facility’s 

cooling water intake structure does 

not directly or indirectly affect Federally-listed threatened and endangered 

species, or designated critical habitat, 

the owner or operator of the facility 

may request the Director to reduce 

monitoring requirements after the first 

full permit term in which these monitoring requirements are implemented, 

on the condition that the results of the 

monitoring to date demonstrate that 

the owner or operator of the facility 

has consistently operated the intake as 

designed and is meeting the requirements of §125.94(c). 

(g) Additional monitoring related to 

Federally-listed threatened and endangered species and designated critical habitat at existing facilities. Where the Director requires additional measures to 

protect Federally-listed threatened or 

endangered species or designated critical habitat pursuant to §125.94(g), the 

Director shall require monitoring associated with those measures. 

§ 125.97 Other permit reporting and 

recordkeeping requirements. 

The owner or operator of an existing 

facility subject to this subpart is required to submit to the Director the 

following information: 

(a) Monitoring reports. Discharge Monitoring Reports (DMRs) (or equivalent 

State reports) and results of all monitoring, demonstrations, and other information required by the permit sufficient to determine compliance with the 

permit conditions and requirements established under §125.94. 

(b) Status reports. Any reports required by the Director under §125.94. 

(c) Annual certification statement and 

report. An annual certification statement signed by the responsible corporate officer as defined in §122.22 of 

this chapter subject to the following: 

(1) If the information contained in 

the previous year’s annual certification 

is still pertinent, you may simply state 

as such in a letter to the Director and 

the letter, along with any applicable 

data submission requirements specified 

in this section shall constitute the annual certification. 

(2) If you have substantially modified 

operation of any unit at your facility 

that impacts cooling water withdrawals or operation of your cooling 

water intake structures, you must provide a summary of those changes in the 

report. In addition, you must submit 

revisions to the information required 

at §122.21(r) of this chapter in your 

next permit application. 

(d) Permit reporting records retention. 

Records of all submissions that are 

part of the permit reporting requirements of this section must be retained 

until the subsequent permit is issued. 

In addition, the Director may require 

supplemental recordkeeping such as 

compliance monitoring under §125.96, 

supplemental data collection under 40 

CFR 122.21, additional monitoring or 

data collection under §125.95. 

(e) Reporting. The Director has the 

discretion to require additional reporting when necessary to establish permit 

compliance and may provide for periodic inspection of the facility. The Director may require additional reporting including but not limited to the 

records required under §125.97(d). 

(f) Records of Director’s Determination 

of BTA for Entrainment. All records supporting the Director’s Determination 

of BTA for Entrainment under 

§125.98(f) or (g) must be retained until 

such time as the Director revises the 

Determination of BTA for Entrainment 

in the permit. 

(g) Additional reporting requirements 

related to Federally-listed threatened and 

endangered species or designated critical 

habitat. Where the Director requires additional measures to protect Federallylisted threatened or endangered species 

or critical habitat pursuant to 

§125.94(g), the Director shall require reporting associated with those measures. 

§ 125.98 Director requirements. 

(a) Permit application. The Director 

must review the materials submitted 


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§ 125.98 40 CFR Ch. I (7–1–15 Edition) 

by the applicant under 40 CFR 122.21(r) 

for completeness pursuant to 40 CFR 

122.21(e) at the time of initial permit 

application and any application for a 

subsequent permit. 

(b) Permitting requirements. Section 

316(b) requirements are implemented 

through an NPDES permit. Based on 

the information submitted in the permit application, the Director must determine the requirements and conditions to include in the permit. 

(1) Such permits, including permits 

with alternative requirements under 

paragraph (b)(7) of this section, must 

include the following language as a 

permit condition: ‘‘Nothing in this permit authorizes take for the purposes of 

a facility’s compliance with the Endangered Species Act.’’ 

(2) In the case of any permit issued 

after July 14, 2018, at a minimum, the 

permit must include conditions to implement and ensure compliance with 

the impingement mortality standard at 

§125.94(c) and the entrainment standard at §125.94(d), including any measures to protect Federally-listed threatened and endangered species and designated critical habitat required by the 

Director. In addition, the permit must 

include conditions, management practices and operational measures necessary to ensure proper operation of 

any technology used to comply with 

the impingement mortality standard at 

§125.94(c) and the entrainment standard at §125.94(d). Pursuant to §125.94(g), 

the permit may include additional control measures, monitoring requirements, and reporting requirements 

that are designed to minimize incidental take, reduce or remove more 

than minor detrimental effects to Federally-listed species and designated 

critical habitat, or avoid jeopardizing 

Federally-listed species or destroying 

or adversely modifying designated critical habitat (e.g. prey base). Such control measures, monitoring requirements, and reporting requirements 

may include measures or requirements 

identified by the U.S. Fish and Wildlife 

Service and/or the National Marine 

Fisheries Service during the 60 day review period pursuant to §125.98(h) or 

the public notice and comment period 

pursuant to 40 CFR 124.10. The Director 

may include additional permit requirements if: 

(i) Based on information submitted 

to the Director by any fishery management agency or other relevant information, there are migratory or sport or 

commercial species subject to entrainment that may be directly or indirectly affected by the cooling water intake structure; or 

(ii) It is determined by the Director, 

based on information submitted by any 

fishery management agencies or other 

relevant information, that operation of 

the facility, after meeting the entrainment standard of this section, would 

still result in undesirable cumulative 

stressors to Federally-listed and proposed, threatened and endangered species, and designated and proposed critical habitat. 

(3) At a minimum, the permit must 

require the permittee to monitor as required at §§125.94 and 125.96. 

(4) At a minimum, the permit must 

require the permittee to report and 

keep the records specified at §125.97. 

(5) After October 14, 2014, in the case 

of any permit issued before July 14, 

2018 for which the Director, pursuant to 

§125.95(a)(2), has established an alternate schedule for submission of the information required by 40 CFR 122.21(r), 

the Director may include permit conditions to ensure that, for any subsequent permit, the Director will have all 

the information required by 40 CFR 

122.21(r) necessary to establish impingement mortality and entrainment 

BTA requirements under §125.94(c) and 

(d). In addition, the Director must establish interim BTA requirements in 

the permit based on the Director’s best 

professional judgment on a site-specific 

basis in accordance with §125.90(b) and 

40 CFR 401.14. 

(6) In the case of any permit issued 

after October 14, 2014, and applied for 

before October 14, 2014, the Director 

may include permit conditions to ensure that the Director will have all the 

information under 40 CFR 122.21(r) necessary to establish impingement mortality and entrainment BTA requirements under §125.94(c) and (d) for the 

subsequent permit. The Director must 

establish interim BTA requirements in 

the permit on a site-specific basis 


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Environmental Protection Agency § 125.98 

based on the Director’s best professional judgment in accordance with 

§125.90(b) and 40 CFR 401.14. 

(7) For new units at existing facilities, the Director may establish alternative requirements if the data specific 

to the facility indicate that compliance with the requirements of 

§125.94(e)(1) or (2) for each new unit 

would result in compliance costs wholly out of proportion to the costs EPA 

considered in establishing the requirements 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: 

(i) The alternative requirements 

must achieve a level of performance as 

close as practicable to the requirements of §125.94(e)(1); 

(ii) The alternative requirements 

must ensure compliance with these 

regulations, other provisions of the 

Clean Water Act, and State and Tribal 

law; 

(iii) The burden is on the owner or 

operator of the facility requesting the 

alternative requirement to demonstrate that alternative requirements 

should be authorized for the new unit. 

(8) The Director may require additional measures such as seasonal deployment of barrier nets, to protect 

shellfish. 

(c) Compliance schedule. When the Director establishes a schedule of requirements under §125.94(b), the schedule must provide for compliance with 

§125.94(c) and (d) as soon as practicable. 

When establishing a schedule for electric power generating facilities, the Director should consider measures to 

maintain adequate energy reliability 

and necessary grid reserve capacity 

during any facility outage. These may 

include establishing a staggered schedule for multiple facilities serving the 

same localities. The Director may confer with independent system operators 

and state public utility regulatory 

agencies when establishing a schedule 

for electric power generating facilities. 

The Director may determine that extenuating circumstances (e.g., lengthy 

scheduled outages, future production 

schedules) warrant establishing a different compliance date for any manufacturing facility. 

(d) Supplemental Technologies and 

Monitoring. The Director may require 

additional technologies for protection 

of fragile species, and may require additional monitoring of species of fish 

and shellfish not already required 

under §125.95(c). The Director may consider data submitted by other interested parties. The Director may also 

require additional study and monitoring if a threatened or endangered 

species has been identified in the vicinity of the intake. 

(e) Impingement technology performance optimization study. The owner or 

operator of a facility that chooses to 

comply with §125.94(c)(5) or (6) must 

demonstrate in its impingement technology performance optimization study 

that the operation of its impingement 

reduction technology has been optimized to minimize impingement mortality of non-fragile species. The Director may request further data collection 

and information as part of the impingement technology performance optimization 

study, including extending the study 

period beyond two years. The Director 

may also consider previously collected 

biological data and performance reviews as part of the study. The Director must include in the permit 

verifiable and enforceable permit conditions that ensure the modified traveling screens or other systems of technologies will perform as demonstrated. 

The Director may waive all or part of 

the impingement technology performance 

optimization study at 40 CFR122.21(r)(6) 

after the first permit cycle wherein the 

permittee is deemed in compliance 

with §125.94(c). 

(f) Site-specific entrainment requirements. The Director must establish 

site-specific requirements for entrainment after reviewing the information 

submitted under 40 CFR 122.21(r) and 

§125.95. These entrainment requirements must reflect the Director’s determination of the maximum reduction 

in entrainment warranted after consideration of factors relevant for determining the best technology available 

for minimizing adverse environmental 

impact at each facility. These entrainment requirements may also reflect 


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§ 125.98 40 CFR Ch. I (7–1–15 Edition) 

any control measures to reduce entrainment of Federally-listed threatened and endangered species and designated critical habitat (e.g. prey 

base). The Director may reject an otherwise available technology as a basis 

for entrainment requirements if the Director determines there are unacceptable adverse impacts including impingement, entrainment, or other adverse effects to Federally-listed threatened or endangered species or designated critical habitat. Prior to any 

permit reissuance after July 14, 2018, 

the Director must review the performance of the facility’s installed entrainment technology to determine whether 

it continues to meet the requirements 

of §125.94(d). 

(1) The Director must provide a written explanation of the proposed entrainment determination in the fact 

sheet or statement of basis for the proposed permit under 40 CFR 124.7 or 

124.8. The written explanation must describe why the Director has rejected 

any entrainment control technologies 

or measures that perform better than 

the selected technologies or measures, 

and must reflect consideration of all 

reasonable attempts to mitigate any 

adverse impacts of otherwise available 

better performing entrainment technologies. 

(2) The proposed determination in the 

fact sheet or statement of basis must 

be based on consideration of any additional information required by the Director at §125.98(i) and the following 

factors listed below. The weight given 

to each factor is within the Director’s 

discretion based upon the circumstances of each facility. 

(i) Numbers and types of organisms 

entrained, including, specifically, the 

numbers and species (or lowest taxonomic classification possible) of Federally-listed, threatened and endangered 

species, and designated critical habitat 

(e.g., prey base); 

(ii) Impact of changes in particulate 

emissions or other pollutants associated with entrainment technologies; 

(iii) Land availability inasmuch as it 

relates to the feasibility of entrainment technology; 

(iv) Remaining useful plant life; and 

(v) Quantified and qualitative social 

benefits and costs of available entrainment technologies when such information on both benefits and costs is of 

sufficient rigor to make a decision. 

(3) The proposed determination in the 

fact sheet or statement of basis may be 

based on consideration of the following 

factors to the extent the applicant submitted information under 40 CFR 

122.21(r) on these factors: 

(i) Entrainment impacts on the 

waterbody; 

(ii) Thermal discharge impacts; 

(iii) Credit for reductions in flow associated with the retirement of units 

occurring within the ten years preceding October 14, 2014; 

(iv) Impacts on the reliability of energy delivery within the immediate 

area; 

(v) Impacts on water consumption; 

and 

(vi) Availability of process water, 

gray water, waste water, reclaimed 

water, or other waters of appropriate 

quantity and quality for reuse as cooling water. 

(4) If all technologies considered have 

social costs not justified by the social 

benefits, or have unacceptable adverse 

impacts that cannot be mitigated, the 

Director may determine that no additional control requirements are necessary beyond what the facility is already doing. The Director may reject 

an otherwise available technology as a 

BTA standard for entrainment if the 

social costs are not justified by the social benefits. 

(g) Ongoing permitting proceedings. In 

the case of permit proceedings begun 

prior to October 14, 2014 whenever the 

Director has determined that the information already submitted by the owner 

or operator of the facility is sufficient, 

the Director may proceed with a determination of BTA standards for impingement mortality and entrainment 

without requiring the owner or operator of the facility to submit the information required in 40 CFR 122.21(r). 

The Director’s BTA determination may 

be based on some or all of the factors 

in paragraphs (f)(2) and (3) of this section and the BTA standards for impingement mortality at §125.95(c). In 

making the decision on whether to require additional information from the 

applicant, and what BTA requirements 

to include in the applicant’s permit for 


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Environmental Protection Agency § 125.121 

impingement mortality and site-specific entrainment, the Director should 

consider whether any of the information at 40 CFR 122.21(r) is necessary. 

(h) The Director must transmit all 

permit applications for facilities subject to this subpart to the appropriate 

Field Office of the U.S. Fish and Wildlife Service and/or Regional Office of 

the National Marine Fisheries Service 

upon receipt for a 60 day review prior 

to public notice of the draft or proposed permit. The Director shall provide the public notice and an opportunity to comment as required under 40 

CFR 124.10 and must submit 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) to the appropriate Field Office of 

the. Fish and Wildlife Service and/or 

Regional Office of the National Marine 

Fisheries Service. This includes notice 

of specific cooling water intake structure requirements at §124.10(d)(1)(ix) of 

this chapter, notice of the draft permit, 

and any specific information the Director has about threatened or endangered 

species and critical habitat that are or 

may be present in the action area, including any proposed control measures 

and monitoring and reporting requirements for such species and habitat. 

(i) Additional information. In implementing the Director’s responsibilities 

under the provisions of this subpart, 

the Director is authorized to inspect 

the facility and to request additional 

information needed by the Director for 

determining permit conditions and requirements, including any additional 

information from the facility recommended by the Services upon review 

of the permit application under paragraph (h) of this section. 

(j) Nothing in this subpart authorizes 

the take, as defined at 16 U.S.C. 

1532(19), of threatened or endangered 

species of fish or wildlife. Such take is 

prohibited under the Endangered Species Act unless it is exempted pursuant 

to 16 U.S.C. 1536(o) or permitted pursuant to 16 U.S.C. 1539(a). Absent such exemption or permit, any facility operating under the authority of this regulation must not take threatened or endangered wildlife. 

(k) The Director must submit at 

least annually to the appropriate EPA 

Regional Office facilities’ annual reports submitted pursuant to §125.97(g), 

for compilation and transmittal to the 

Services. 

§ 125.99 [Reserved] 

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. 

§ 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. 

§ 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 


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§ 125.122 40 CFR Ch. I (7–1–15 Edition) 

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. 

§ 125.122 Determination of unreasonable degradation of the marine environment. 

(a) The director shall determine 

whether a discharge will cause unreasonable degradation of the marine environment based on consideration of: 

(1) The quantities, composition and 

potential for bioaccumulation or persistence of the pollutants to be discharged; 

(2) The potential transport of such 

pollutants by biological, physical or 

chemical processes; 

(3) The composition and vulnerability 

of the biological communities which 

may be exposed to such pollutants, including the presence of unique species 

or communities of species, the presence 

of species identified as endangered or 

threatened pursuant to the Endangered 

Species Act, or the presence of those 

species critical to the structure or 

function of the ecosystem, such as 

those important for the food chain; 

(4) The importance of the receiving 

water area to the surrounding biological community, including the presence 

of spawning sites, nursery/forage areas, 

migratory pathways, or areas necessary for other functions or critical 

stages in the life cycle of an organism. 

(5) The existence of special aquatic 

sites including, but not limited to marine sanctuaries and refuges, parks, national and historic monuments, national seashores, wilderness areas and 

coral reefs; 

(6) The potential impacts on human 

health through direct and indirect 

pathways; 

(7) Existing or potential recreational 

and commercial fishing, including 

finfishing and shellfishing; 

(8) Any applicable requirements of an 

approved Coastal Zone Management 

plan; 

(9) Such other factors relating to the 

effects of the discharge as may be appropriate; 

(10) Marine water quality criteria developed pursuant to section 304(a)(1). 

(b) Discharges in compliance with 

section 301(g), 301(h), or 316(a) variance 

requirements or State water quality 

standards shall be presumed not to 

cause unreasonable degradation of the 

marine environment, for any specific 

pollutants or conditions specified in 

the variance or the standard. 

§ 125.123 Permit requirements. 

(a) If the director on the basis of 

available information including that 

supplied by the applicant pursuant to 

§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 

§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 

§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 §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 


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Environmental Protection Agency § 125.130 

issuance that there will be no unreasonable degradation of the marine environment pursuant to §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 §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 

§227.27(a) (2) and (3), §227.27(b), and 

§227.27(c) of the Ocean Dumping Criteria; and (ii) not exceed the limiting 

permissible concentration for the solid 

phase of the waste material or cause an 

accumulation of toxic materials in the 

human food chain as described in 

§227.27 (b) and (d) of the Ocean Dumping Criteria; 

(2) Specify a monitoring program, 

which is 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. 

§ 125.124 Information required to be 

submitted by applicant. 

The applicant is responsible for providing information which the director 

may request to make the determination required by this subpart. The director may require the following information as well as any other pertinent 

information: 

(a) An analysis of the chemical constituents of any discharge; 

(b) Appropriate bioassays necessary 

to determine the limiting permissible 

concentrations for the discharge; 

(c) An analysis of initial dilution; 

(d) Available process modifications 

which will reduce the quantities of pollutants which will be discharged; 

(e) Analysis of the location where 

pollutants are sought to be discharged, 

including the biological community 

and the physical description of the discharge facility; 

(f) Evaluation of available alternatives to the discharge of the pollutants including an evaluation of the 

possibility of land-based disposal or 

disposal in an approved ocean dumping 

site. 

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. 

§ 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 


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§ 125.131 40 CFR Ch. I (7–1–15 Edition) 

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 §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. 

§ 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. 

§ 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. 

§ 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 §125.131(c). 


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Environmental Protection Agency § 125.134 

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, regasifies, 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. 

§ 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. 

(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 throughscreen 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) 


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§ 125.135 40 CFR Ch. I (7–1–15 Edition) 

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 §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 §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 §125.136(b) as part of your application. 

(7) You must implement the monitoring requirements specified in 

§125.137; and 

(8) You must implement the recordkeeping requirements specified in 

§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 

122.21(r)(2) (except (r)(2)(iv)), (3) and (4) 

and §125.136(c); 

(4) You must implement the monitoring requirements specified in 

§125.137; 

(5) You must implement the recordkeeping requirements specified in 

§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). 

§ 125.135 May alternative requirements be authorized? 

(a) Any interested person may request that alternative requirements 

less stringent than those specified in 

§125.134(a) through (d) be imposed in 

the permit. The Director may establish 

alternative requirements less stringent 

than the requirements of §125.134(a) 

through (d) only if: 

(1) There is an applicable requirement under §125.134(a) through (d); 


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Environmental Protection Agency § 125.136 

(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. 

§ 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 §125.134(b); or 

(ii) If you are a fixed facility, you 

may choose to comply with the Track 

II requirements in §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 §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 §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 

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 §125.134(b)(3). 

(3) Design and Construction Technology 

Plan. To comply with §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 

§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, 


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§ 125.136 40 CFR Ch. I (7–1–15 Edition) 

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 

§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 §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 §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 §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 

§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 §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: 

(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 


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Environmental Protection Agency § 125.136 

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 

§125.134(b)(2) and, for facilities without 

sea chests, §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 

§125.134(b)(2) and, for facilities without 

sea chests, §125.134(b)(5) of Track I. The 

efficacy projection must include a sitespecific 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 

(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 §125.134(c), and 

that the operation of the technology 

has been optimized. 


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§ 125.137 40 CFR Ch. I (7–1–15 Edition) 

§ 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 

§125.134 or alternative requirements 

under §125.135. 

(a) Biological monitoring. (1)(i) Fixed 

facilities without sea chests that 

choose to comply with the Track I requirements in §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 §125.134(b)(4) 

or more stringent requirements in accordance with §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 

§125.134(b)(4) or more stringent requirements in accordance with §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 §125.134(b)(4) 

or more stringent requirements in accordance with §125.134(d). 

(iv) Fixed facilities with sea chests 

that choose to comply with Track II 

requirements in accordance with 

§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 §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 §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 

cooling water intake structure is in operation. 

(5) Entrainment sampling. If your facility is subject to the requirements of 

§125.134(b)(1)(i), or if your facility is 

subject to §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 §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 


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Environmental Protection Agency § 125.139 

each cooling water intake structure 

must be used to determine compliance 

with the velocity requirement in 

§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 §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. 

§ 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 §125.136, and 

any compliance monitoring data submitted under §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 

§125.137(a); 

(2) Velocity and head loss monitoring 

records for each cooling water intake 

structure as required by §125.137(b); 

and 

(3) Records of visual or remote inspections as required in §125.137(c). 

§ 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), §125.135, and §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 §125.134 or 

§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 

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 

§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 §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 §125.134(b)(2), 


Lhorne on DSK5TPTVN1PROD with CFR
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Pt. 129 40 CFR Ch. I (7–1–15 Edition) 

(3), (4) and (5); §125.134(c)(1) and (2); or 

§125.135. 

(i) For a facility that chooses Track 

I, you must review the Design and Construction Technology Plan required in 

§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 §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 §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 

§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 §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 

§125.134(b)(2) and, if applicable, 

§125.134(b)(5). 

(iii) If a facility requests alternative 

requirements in accordance with 

§125.135, you must determine if data 

specific to the facility meet the requirements in §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 §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 

§125.136(c)(2)(iii)(C). 

(3) Record keeping and reporting. At a 

minimum, the permit must require the 

permittee to report and keep records as 

required by §125.138. 

PART 129—TOXIC POLLUTANT 

EFFLUENT STANDARDS 

Subpart A—Toxic Pollutant Effluent 

Standards and Prohibitions 

Sec. 

129.1 Scope and purpose. 

129.2 Definitions. 

129.3 Abbreviations. 

129.4 Toxic pollutants. 

129.5 Compliance. 

129.6 Adjustment of effluent standard for 

presence of toxic pollutant in the intake 

water. 

129.7 Requirement and procedure for establishing a more stringent effluent limitation. 

129.8 Compliance date. 

129.9–129.99 [Reserved] 

129.100 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 


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Environmental Protection Agency § 129.2 

1972 (Pub. L. 92–500, 86 Stat. 816, (33 U.S.C. 

1251 et seq.)). 

SOURCE: 42 FR 2613, Jan. 12, 1977, unless 

otherwise noted. 

Subpart A—Toxic Pollutant Effluent 

Standards and Prohibitions 

§ 129.1 Scope and purpose. 

(a) The provisions of this subpart 

apply to 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. 

§ 129.2 Definitions. 

All terms not defined herein shall 

have the meaning given them in the 

Act or in 40 CFR part 124 or 125. As 

used in this part, the term: 

(a) Act means the Federal Water Pollution Control Act, as amended (Pub. 

L. 92–500, 86 Stat. 816 et seq., 33 U.S.C. 

1251 et seq.). Specific references to sections within the Act will be according 

to Pub. L. 92–500 notation. 

(b) Administrator means the Administrator of the Environmental Protection 

Agency or any employee of the Agency 

to whom the Administrator may by 

order delegate the authority to carry 

out his functions under section 307(a) 

of the Act, or any person who shall by 

operation of law be authorized to carry 

out such functions. 

(c) Effluent standard means, for purposes of section 307, the equivalent of 

effluent limitation as that term is defined in section 502(11) of the Act with 

the exception that it does not include a 

schedule of compliance. 

(d) Prohibited means that the constituent shall be absent in any discharge subject to these standards, as 

determined by any analytical method. 

(e) Permit means a permit for the discharge of pollutants into navigable 

waters under the National Pollutant 

Discharge Elimination System established by section 402 of the Act and implemented in regulations in 40 CFR 

parts 124 and 125. 

(f) Working day means the hours during a calendar day in which a facility 

discharges effluents subject to this 

part. 

(g) Ambient water criterion means that 

concentration of a toxic pollutant in a 

navigable water that, based upon available data, will not result in adverse impact on important aquatic life, or on 

consumers of such aquatic life, after 

exposure of that aquatic life for periods 

of time exceeding 96 hours and continuing at least through one reproductive cycle; and will not result in a significant risk of adverse health effects 

in a large human population based on 

available information such as mammalian laboratory toxicity data, epidemiological studies of human occupational exposures, or human exposure 

data, or any other relevant data. 

(h) New source means any source discharging a toxic pollutant, the construction of which is commenced after 

proposal of an effluent standard or prohibition applicable to such source if 

such effluent standard or prohibition is 

thereafter promulgated in accordance 

with section 307. 

(i) Existing source means any source 

which is not a new source as defined 

above. 

(j) Source means any building, structure, facility, or installation from 

which there is or may be the discharge 

of toxic pollutants designated as such 

by the Administration under section 

307(a)(1) of the Act. 

(k) Owner or operator means any person who owns, leases, operates, controls, or supervises a source as defined 

above. 

(l) Construction means any placement, assembly, or installation of facilities or equipment (including contractual obligations to purchase such 

facilities or equipment) at the premises 

where such equipment will be used, including preparation work at such 

premises. 

(m) Manufacturer means any establishment engaged in the mechanical or 


Lhorne on DSK5TPTVN1PROD with CFR
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§ 129.3 40 CFR Ch. I (7–1–15 Edition) 

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. 

§ 129.3 Abbreviations. 

The abbreviations used in this part 

represent the following terms: 

lb=pound (or pounds) 

g=gram 

μg/l=micrograms per liter (1 one-millionth 

gram/liter) 

kg=kilogram(s) 

kkg=1000 kilogram(s) 

§ 129.4 Toxic pollutants. 

The following are the pollutants subject to 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-hexachloro1,4,4a,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-epoxy1,4,4a,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(pchlorophenyl) ethane and some o,p′-isomers; (DDE)-1,1-dichloro-2,2-bis(pchlorophenyl) ethylene. 

(c) Endrin—Endrin means the compound endrin as identified by the chemical name 1,2,3,4,10,10-hexachloro-6,7- 

epoxy-1,4,4a,5,6,7,8,8a-octahydro-1,4- 

endo-5,8-endodimethanonaphthalene. 

(d) Toxaphene—Toxaphene means a 

material consisting of technical grade 

chlorinated camphene having the approximate formula of C10 H10 Cl8 and 

normally containing 67–69 percent chlorine by weight. 

(e) Benzidine—Benzidine means the 

compound benzidine and its salts as 

identified by the chemical name 4,4′– 

diaminobiphenyl. 

(f) Polychlorinated Biphenyls (PCBs) 

polychlorinated biphenyls (PCBs) means 

a mixture of compounds composed of 

the biphenyl molecule which has been 

chlorinated to varying degrees. 

[42 FR 2613, Jan. 12, 1977, as amended at 42 

FR 2620, Jan. 12, 1977; 42 FR 6555, Feb. 2, 1977] 

§ 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 


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Environmental Protection Agency § 129.5 

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 

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 


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§ 129.6 40 CFR Ch. I (7–1–15 Edition) 

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. 

§ 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. 

§ 129.7 Requirement and procedure for 

establishing a more stringent effluent limitation. 

(a) In exceptional cases: (1) Where the 

Regional Administrator (or State Director, if appropriate) determines that 

the ambient water criterion established in these standards is not being 

met or will not be met in the receiving 

water as a result of one or more discharges at levels allowed by these 

standards, and 

(2) Where he further determines that 

this is resulting in or may cause or 

contribute to significant adverse effects on aquatic or other organisms 

usually or potentially present, or on 

human health, he may issue to an 

owner or operator a permit or a permit 

modification containing a toxic pollutant effluent limitation at a more stringent level than that required by the 

standard set forth in these regulations. 

Any such action shall be taken pursuant to the procedural provisions of 40 

CFR parts 124 and 125, as appropriate. 

In any proceeding in connection with 

such action the burden of proof and of 

going forward with evidence with regard to such more stringent effluent 

limitation shall be upon the Regional 

Administrator (or State Director, if appropriate) as the proponent of such 

more stringent effluent limitation. 

(3) Evidence in such proceeding shall 

include at a minimum: An analysis 

using data and other information to 

demonstrate receiving water concentrations of the specified toxic pollutant, projections of the anticipated 

effects of the proposed modification on 

such receiving water concentrations, 

and the hydrologic and hydrographic 

characteristics of the receiving waters 

including the occurrence of dispersion 

of the effluent. Detailed specifications 

for presenting relevant information by 

any interested party may be prescribed 

in guidance documents published from 


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Environmental Protection Agency § 129.100 

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. 

§ 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. 

§§ 129.9–129.99 [Reserved] 

§ 129.100 Aldrin/dieldrin. 

(a) Specialized definitions. (1) Aldrin/ 

Dieldrin manufacturer means a manufacturer, excluding any source which is 

exclusively an aldrin/dieldrin formulator, who produces, prepares or processes technical aldrin or dieldrin or 

who uses aldrin or dieldrin as a material in the production, 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 μg/l. 

(b) Aldrin/dieldrin manufacturer—(1) 

Applicability. (i) These standards or prohibitions apply to: 

(A) All discharges of process wastes; 

and 

(B) All discharges from the manufacturing areas, loading and unloading 

areas, storage areas and other areas 

which are subject to direct contamination by aldrin/dieldrin as a result of the 

manufacturing process, including but 

not limited to: 

(1) Stormwater and other runoff except as hereinafter provided in paragraph (b)(1)(ii) of this section; and 

(2) Water used for routine cleanup or 

cleanup of spills. 

(ii) These standards do not apply to 

stormwater runoff or other discharges 

from areas subject to contamination 

solely by fallout from air emissions of 

aldrin/dieldrin; or to stormwater runoff 

that exceeds that from the ten year 24- 

hour rainfall event. 

(2) Analytical method acceptable. Environmental Protection Agency method 

specified in 40 CFR part 136, except 

that a 1-liter sample size is required to 

increase the analytical sensitivity. 

(3) Effluent standard—(i) Existing 

sources. Aldrin or dieldrin is prohibited 

in any discharge from any aldrin/ 

dieldrin manufacturer. 

(ii) New Sources. Aldrin or dieldrin is 

prohibited in any discharge from any 

aldrin/dieldrin manufacturer. 

(c) Aldrin/dieldrin formulator—(1) Applicability. (i) These standards or prohibitions apply to: 

(A) All discharges of process wastes; 

and 

(B) All discharges from the formulating areas, loading and unloading 

areas, storage areas and other areas 

which are subject to direct contamination by aldrin/dieldrin as a result of the 

formulating process, including but not 

limited to: 

(1) Stormwater and other runoff except as hereinafter provided in paragraph (c)(1)(ii) of this section; and 


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§ 129.101 40 CFR Ch. I (7–1–15 Edition) 

(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. 

§ 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 μg/l. 

(b) DDT manufacturer—(1) Applicability. (i) These standards or prohibitions apply to: 

(A) All discharges of process wastes; 

and 

(B) All discharges from the manufacturing areas, loading and unloading 

areas, storage areas and other areas 

which are subject to direct contamination by DDT as a result of the manufacturing process, including but not 

limited to: 

(1) Stormwater and other runoff except as hereinafter provided in paragraph (b)(1)(ii) of this section; and 

(2) Water used for routine cleanup or 

cleanup of spills. 

(ii) These standards do not apply to 

stormwater runoff or other discharges 

from areas subject to contamination 

solely by fallout from air emissions of 

DDT; or to stormwater runoff that exceeds that from the ten year 24-hour 

rainfall event. 

(2) Analytical method acceptable. Environmental Protection Agency method 

specified in 40 CFR part 136, except 

that a 1-liter sample size is required to 

increase the analytical sensitivity. 

(3) Effluent standard—(i) Existing 

sources. DDT is prohibited in any discharge from any DDT manufacturer. 

(ii) New sources. DDT is prohibited in 

any discharge from any DDT manufacturer. 

(c) DDT formulator—(1) Applicability. 

(i) These standards or prohibitions 

apply to: 

(A) All discharges of process wastes; 

and 

(B) All discharges from the formulating areas, loading and unloading 

areas, storage areas and other areas 

which are subject to direct contamination by DDT as a result of the formulating process, including but not limited to: 

(1) Stormwater and other runoff except as hereinafter provided in paragraph (c)(1)(ii) of this section; and 

(2) Water used for routine cleanup or 

cleanup of spills. 

(ii) These standards do not apply to 

stormwater runoff or other discharges 

from areas subject to contamination 

solely by fallout from air emissions of 

DDT; or to stormwater runoff that exceeds that from the ten year 24-hour 

rainfall event. 

(2) Analytical method acceptable. Environmental Protection Agency method 

specified in 40 CFR part 136, except 

that a 1-liter sample size is required to 

increase the analytical sensitivity. 

(3) Effluent standard—(i) Existing 

sources. DDT is prohibited in any discharge from any DDT formulator. 

(ii) New Sources. DDT is prohibited in 

any discharge from any DDT formulator. 

§ 129.102 Endrin. 

(a) Specialized definitions. (1) Endrin 

Manufacturer means a manufacturer, 


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Environmental Protection Agency § 129.102 

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 μg/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 μg/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 μg/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 μg/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 μg/l in a sample(s) representing any 

working day. 

(iii) Mass emission standard during 

shutdown of production. In computing 

the allowable monthly average daily 

loading figure required under the preceding paragraphs (b)(3) (i) and (ii) of 

this section, for any calendar month 

for which there is no endrin being manufactured at any plant or facility 

which normally contributes to the discharge which is subject to these standards, the applicable production value 

shall be deemed to be the average 

monthly production level for the most 

recent preceding 360 days of actual operation of the plant or facility. 

(c) Endrin formulator—(1) Applicability. (i) These standards or prohibitions apply to: 

(A) All discharges of process wastes; 

and 

(B) All discharges from the formulating areas, loading and unloading 

areas, storage areas and other areas 

which are subject to direct contamination by endrin as a result of the formulating process, including but not limited to: (1) Stormwater and other runoff except as hereinafter provided in 

paragraph (c)(1)(ii) of this section; and 

(2) water used for routine cleanup or 

cleanup of spills. 

(ii) These standards do not apply to 

stormwater runoff or other discharges 

from areas subject to contamination 

solely by fallout from air emissions of 

endrin; or to storm-water runoff that 

exceeds that from the ten year 24-hour 

rainfall event. 

(2) Analytical method acceptable—Environmental Protection Agency method specified in 40 CFR part 136, except 

that a 1-liter sample size is required to 

increase the analytical sensitivity. 

(3) Effluent standard—(i) Existing 

sources. Endrin is prohibited in any discharge from any endrin formulator. 

(ii) New sources—Endrin is prohibited in any discharge from any endrin 

formulator. 

(d) The standards set forth in this 

section shall apply to the total combined weight or concentration of 


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§ 129.103 40 CFR Ch. I (7–1–15 Edition) 

endrin, excluding any associated element or compound. 

§ 129.103 Toxaphene. 

(a) Specialized definitions. (1) 

Toxaphene manufacturer means a manufacturer, excluding any source which is 

exclusively a toxaphene 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 

μg/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 μg/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 μg/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 

μg/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 μ/l in a sample(s) representing any working day. 

(iii) Mass emission during shutdown of 

production. In computing the allowable 

monthly average daily loading figure 

required under the preceding paragraphs (b)(3)(i) and (ii) of this section, 

for any calendar month for which there 

is no toxaphene being manufactured at 

any plant or facility which normally 

contributes to the discharge which is 

subject to these standards, the applicable production value shall be deemed to 

be the average monthly production 

level for the most recent preceding 360 

days of actual operation of the plant or 

facility. 

(c) Toxaphene formulator—(1) Applicability. (i) These standards or prohibitions apply to: 

(A) All discharges of process wastes; 

and 

(B) All discharges from the formulating areas, loading and unloading 

areas, storage areas and other areas 

which are subject to direct contamination by toxaphene as a result of the 

formulating process, including but not 

limited to: (1) Stormwater and other 

runoff except as hereinafter provided in 

paragraph (c)(1)(ii) of this section; and 

(2) water used for routine cleanup or 

cleanup of spills. 

(ii) These standards do not apply to 

stormwater runoff or other discharges 

from areas subject to contamination 

solely by fallout from air emissions of 

toxaphene; or to stormwater runoff 

that exceeds that from the ten year 24- 

hour rainfall event. 

(2) Analytical method acceptable—Environmental Protection Agency method specified in 40 CFR part 136, except 

that a 1-liter sample size is required to 

increase the analytical sensitivity. 

(3) Effluent standards—(i) Existing 

sources. Toxaphene is prohibited in any 


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Environmental Protection Agency § 129.104 

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. 

§ 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 μg/ 

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 μg/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 

μg/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 

μg/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 μg/l in a sample(s) representing 

any working day. 

(4) The standards set forth in this 

paragraph (b) shall apply to the total 

combined weight or concentration of 

benzidine, excluding any associated 

element or compound. 

(c) Benzidine-based dye applicators—(1) 

Applicability. (i) These standards apply 

to: 

(A) All discharges into the navigable 

waters of process wastes, and 

(B) All discharges into the navigable 

waters of wastes containing benzidine 

from the manufacturing areas, loading 

and unloading areas, storage areas, and 

other areas subject to direct contamination by benzidine or benzidine-containing product as a result of the manufacturing process, including but not 

limited to: 

(1) Stormwater and other runoff except as hereinafter provided in paragraph (c)(1)(ii) of this section, and 

(2) Water used for routine cleanup or 

cleanup of spills. 

(ii) These standards do not apply to 

stormwater runoff or other discharges 

from areas subject to contamination 

solely by fallout from air emissions of 

benzidine; or to stormwater that exceeds that from the ten year 24-hour 

rainfall event. 

(2) Analytical method acceptable. (i) 

Environmental Protection Agency 

method specified in 40 CFR part 136; or 

(ii) Mass balance monitoring approach which requires the calculation 

of the benzidine concentration by dividing the total benzidine contained in 

dyes used during a working day (as certified in writing by the manufacturer) 

by the total quantity of water discharged during the working day. 


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§ 129.105 40 CFR Ch. I (7–1–15 Edition) 

[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 benzidinebased dye applicators shall not contain 

benzidine concentrations exceeding an 

average per working day of 10 μg/l calculated over any calendar month; and 

shall not exceed 25 μg/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 μg/l calculated over any calendar 

month; and shall not exceed 25 μg/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] 

§ 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 μg/l. 

(b) PCB manufacturer—(1) Applicability. (i) These standards or prohibitions apply to: 

(A) All discharges of process wastes; 

(B) All discharges from the manufacturing or incinerator areas, loading 

and unloading areas, storage areas, and 

other areas which are subject to direct 

contamination by PCBs as a result of 

the manufacturing process, including 

but not limited to: 

(1) Stormwater and other runoff except as hereinafter provided in paragraph (b)(1)(ii) of this section; and 

(2) Water used for routine cleanup or 

cleanup of spills. 

(ii) These standards do not apply to 

stormwater runoff or other discharges 

from areas subject to contamination 

solely by fallout from air emissions of 

PCBs; or to stormwater runoff that exceeds that from the ten-year 24-hour 

rainfall event. 

(2) Analytical Method Acceptable— 

Environmental Protection Agency 

method specified in 40 CFR part 136 except that a 1-liter sample size is required to increase analytical sensitivity. 

(3) Effluent standards—(i) Existing 

sources. PCBs are prohibited in any discharge from any PCB manufacturer; 

(ii) New sources. PCBs are prohibited 

in any discharge from any PCB manufacturer. 

(c) Electrical capacitor manufacturer— 

(1) Applicability. (i) These standards or 

prohibitions apply to: 

(A) All discharges of process wastes; 

and 

(B) All discharges from the manufacturing or incineration areas, loading 

and unloading areas, storage areas and 

other areas which are subject to direct 

contamination by PCBs as a result of 

the manufacturing process, including 

but not limited to: 

(1) Stormwater and other runoff except as hereinafter provided in paragraph (c)(1)(ii) of this section; and 

(2) Water used for routine cleanup or 

cleanup of spills. 

(ii) These standards do not apply to 

stormwater runoff or other discharges 

from areas subject to contamination 

solely by fallout from air emissions of 

PCBs; or to stormwater runoff that exceeds that from the ten-year 24-hour 

rainfall event. 

(2) Analytical method acceptable. Environmental Protection Agency method 

specified in 40 CFR part 136, except 

that a 1-liter sample size is required to 

increase analytical sensitivity. 

(3) Effluent standards—(i) Existing 

sources. PCBs are prohibited in any discharge from any electrical capacitor 

manufacturer; 


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Environmental Protection Agency § 130.0 

(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 

§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 §129.6(a), 

relating to the source of the water supply, shall be waived, and such facility 

shall be eligible to apply for a credit 

under §129.6, upon a showing by the 

owner or operator of such 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 

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. 

§ 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 


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§ 130.1 40 CFR Ch. I (7–1–15 Edition) 

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. 

§ 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] 

§ 130.2 Definitions. 

(a) The Act. The Clean Water Act, as 

amended, 33 U.S.C. 1251 et seq. 

(b) Indian Tribe. Any Indian Tribe, 

band, group, or community recognized 

by the Secretary of the Interior and exercising governmental authority over a 

Federal Indian reservation. 

(c) Pollution. The man-made or maninduced 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. 


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Environmental Protection Agency § 130.3 

(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] 

§ 130.3 Water quality standards. 

A water quality standard (WQS) defines the water quality goals of a water 

body, or portion thereof, by designating the use or uses to be made of 

the water and by setting criteria necessary to protect the uses. States and 

EPA adopt WQS to protect public 

health or welfare, enhance the quality 

of water and serve the purposes of the 

Clean Water Act (CWA). Serve the purposes of Act (as defined in sections 

101(a)(2) and 303(c) of the Act) means 

that WQS should, wherever attainable, 

provide water quality for the protection and propagation of fish, shellfish 

and wildlife and for recreation in and 

on the water and take into consideration their use and value for public 

water supplies, propagation of fish, 

shellfish, wildlife, recreation in and on 

the water, and agricultural, industrial 

and other purposes including navigation. 

Such standards serve the dual purposes 

of establishing the water quality goals 

for a specific water body and serving as 

the regulatory basis for establishment 

of water quality-based treatment controls and strategies beyond the technology-based level of treatment required by sections 301(b) and 306 of the 

Act. States shall review and revise 

WQS in accordance with applicable regulations and, as appropriate, update 

their Water Quality Management 

(WQM) plans to reflect such revisions. 


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§ 130.4 40 CFR Ch. I (7–1–15 Edition) 

Specific WQS requirements are found 

in 40 CFR part 131. 

§ 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] 

§ 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 

§130.7(a) of this regulation. 

(4) The process for updating and 

maintaining Water Quality Management (WQM) plans, including schedules 

for revision. 

(5) The process for assuring adequate 

authority for intergovernmental cooperation in the implementation of the 

State WQM program. 

(6) The process for establishing and 

assuring adequate implementation of 

new or revised water quality standards, 

including schedules of compliance, 

under section 303(c) of the Act. 

(7) The process for assuring adequate 

controls over the disposition of all residual waste from any water treatment 

processing. 

(8) The process for developing an inventory and ranking, in order of priority of needs for construction of waste 

treatment works required to meet the 

applicable requirements of sections 301 

and 302 of the Act. 

(9) The process for determining the 

priority of permit issuance. 

(c) Regional Administrator review. The 

Regional Administrator shall review 

approved State CPPs from time to time 

to ensure that the planning processes 

are consistent with the Act and this 

regulation. The Regional Administrator shall not approve any permit 

program under Title IV of the Act for 

any State which does not have an approved continuing planning process. 


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Environmental Protection Agency § 130.6 

§ 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 §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 §130.5 of this 

part. 

(3) Municipal and industrial waste 

treatment. Identification of anticipated 

municipal and industrial waste treatment works, including facilities for 

treatment of stormwater-induced combined sewer overflows; programs to 

provide necessary financial arrangements for such works; establishment of 

construction priorities and schedules 

for initiation and completion of such 

treatment works including an identification of open space and recreation 

opportunities from improved water 

quality in accordance with section 

208(b)(2) (A) and (B) of the Act. 

(4) Nonpoint source management and 

control. (i) The plan shall describe the 

regulatory and non-regulatory programs, activities and Best Management 

Practices (BMPs) which the agency has 

selected as the means to control 

nonpoint source pollution where necessary to protect or achieve approved 

water uses. Economic, institutional, 

and technical factors shall be considered in a continuing process of identifying control needs and evaluating and 

modifying the BMPs as necessary to 

achieve water quality goals. 

(ii) Regulatory programs shall be 

identified where they are determined 

to be necessary by the State to attain 

or maintain an approved water use or 

where non-regulatory approaches are 

inappropriate in accomplishing that 

objective. 

(iii) BMPs shall be identified for the 

nonpoint sources identified in section 

208(b)(2)(F)–(K) of the Act and other 

nonpoint sources as follows: 

(A) Residual waste. Identification of a 

process to control the disposition of all 

residual waste in the area which could 

affect water quality in accordance with 

section 208(b)(2)(J) of the Act. 

(B) Land disposal. Identification of a 

process to control the disposal of pollutants on land or in subsurface excavations to protect ground and surface 

water quality in accordance with section 208(b)(2)(K) of the Act. 

(C) Agricultural and silvicultural. Identification of procedures to control agricultural and silvicultural sources of 

pollution in accordance with section 

208(b)(2)(F) of the Act. 

(D) Mines. Identification of procedures to control mine-related sources 

of pollution in accordance with section 

208(b)(2)(G) of the Act. 

(E) Construction. Identification of 

procedures to control construction related sources of pollution in accordance with section 208(b)(2)(H) of the 

Act. 


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§ 130.6 40 CFR Ch. I (7–1–15 Edition) 

(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 §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 groundwater plan element, it should describe 

the essentials of a State program and 

should include, but is not limited to: 

(i) Overall goals, policies and legislative authorities for protection of 

ground-water. 

(ii) Monitoring and resource assessment programs in accordance with section 106(e)(1) of the Act. 

(iii) Programs to control sources of 

contamination of ground-water including Federal programs delegated to the 

State and additional programs authorized in State statutes. 

(iv) Procedures for coordination of 

ground-water protection programs 

among State agencies and with local 

and Federal agencies. 

(v) Procedures for program management and administration including 

provision of program financing, training and technical assistance, public 

participation, and emergency management. 

(d) Indian Tribes. An Indian Tribe is 

eligible for the purposes of this rule 

and the Clean Water Act assistance 

programs under 40 CFR part 35, subparts A and H if: 

(1) The Indian Tribe has a governing 

body carrying out substantial governmental duties and powers; 

(2) The functions to be exercised by 

the Indian Tribe pertain to the management and protection of water resources which are held by an Indian 

Tribe, held by the United States in 

trust for Indians, held by a member of 

an Indian Tribe if such property interest is subject to a trust restriction on 

alienation, or otherwise within the borders of an Indian reservation; and 

(3) The Indian Tribe is reasonably expected to be capable, in the Regional 

Administrator’s judgment, of carrying 

out the functions to be exercised in a 

manner consistent with the terms and 

purposes of the Clean Water Act and 

applicable regulations. 

(e) Update and certification. State and/ 

or areawide agency WQM plans shall be 

updated as needed to reflect changing 

water quality conditions, results of implementation actions, new requirements or to remove conditions in prior 

conditional or partial plan approvals. 

Regional Administrators may require 


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Environmental Protection Agency § 130.7 

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 §§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] 

§ 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 §130.7(b), the term ‘‘water quality standard applicable to such waters’’ 

and ‘‘applicable water quality standards’’ refer to those water quality 

standards established under section 303 

of the Act, including numeric criteria, 

narrative criteria, waterbody uses, and 

antidegradation requirements. 

(4) The list required under 

§§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 §§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 


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§ 130.7 40 CFR Ch. I (7–1–15 Edition) 

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 §§130.7(b)(1) and 

130.7(b)(2). This documentation shall be 

submitted to the Regional Administrator together with the list required 

by §§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 §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 §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 

§130.7(b)(5); or changes in conditions, 

e.g., new control equipment, or elimination of discharges. 

(c) Development of TMDLs and individual water quality based effluent 

limitations. 

(1) Each State shall establish TMDLs 

for the water quality limited segments 

identified in paragraph (b)(1) of this 

section, and in accordance with the priority ranking. For pollutants other 

than heat, TMDLs shall be established 

at levels necessary to attain and maintain the applicable narrative and numerical WQS with seasonal variations 

and a margin of safety which takes 

into account any lack of knowledge 

concerning the relationship between effluent limitations and water quality. 

Determinations of TMDLs shall take 

into account critical conditions for 

stream flow, loading, and water quality 

parameters. 

(i) TMDLs may be established using a 

pollutant-by-pollutant or biomonitoring approach. In many cases both 

techniques may be needed. Site-specific 

information should be used wherever 

possible. 

(ii) TMDLs shall be established for 

all pollutants preventing or expected 

to prevent attainment of water quality 

standards as identified pursuant to 

paragraph (b)(1) of this section. Calculations to establish TMDLs shall be 

subject to public review as defined in 

the State CPP. 

(2) Each State shall estimate for the 

water quality limited segments still requiring TMDLs identified in paragraph 

(b)(2) of this section, the total maximum daily thermal load which cannot 

be exceeded in order to assure protection and propagation of a balanced, indigenous population of shellfish, fish 

and wildlife. Such estimates shall take 

into account the normal water temperatures, flow rates, seasonal variations, existing sources of heat input, 

and the dissipative capacity of the 

identified waters or parts thereof. Such 

estimates shall include a calculation of 

the maximum heat input that can be 


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Environmental Protection Agency § 130.8 

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 

§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 §130.7(b) that is 

submitted after the effective date of 

this rule only if it meets the requirements of §130.7(b). If the Regional Administrator approves such listing and 

loadings, the State shall incorporate 

them into its current WQM plan. If the 

Regional Administrator disapproves 

such listing and loadings, he shall, not 

later than 30 days after the date of 

such disapproval, identify such waters 

in such State and establish such loads 

for such waters as determined necessary to implement applicable WQS. 

The Regional Administrator shall 

promptly issue a public notice seeking 

comment on such listing and loadings. 

After considering public comment and 

making any revisions he deems appropriate, the Regional Administrator 

shall transmit the listing and loads to 

the State, which shall incorporate 

them into its current WQM plan. 

(e) For the specific purpose of developing information and as resources 

allow, each State shall identify all segments within its boundaries which it 

has not identified under paragraph (b) 

of this section and estimate for such 

waters the TMDLs with seasonal variations and margins of safety, for those 

pollutants which the Regional Administrator identifies under section 

304(a)(2) as suitable for such calculation and for thermal discharges, at a 

level that would assure protection and 

propagation of a balanced indigenous 

population of fish, shellfish and wildlife. However, there is no requirement 

for such loads to be submitted to EPA 

for approval, and establishing TMDLs 

for those waters identified in paragraph (b) of this section shall be given 

higher priority. 

[50 FR 1779, Jan. 11, 1985, as amended at 57 

FR 33049, July 24, 1992; 65 FR 17170, Mar. 31, 

2000; 66 FR 53048, Oct. 18, 2001] 

§ 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 


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§ 130.9 40 CFR Ch. I (7–1–15 Edition) 

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 groundwater 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] 

§ 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 selfdesignate 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 §130.6(c)(2) if: 

(1) The areawide agency requests 

such cancellation; or 

(2) The areawide agency fails to meet 

its planning requirements as specified 

in grant agreements, contracts or 

memoranda of understanding; or 

(3) The areawide agency no longer 

has the resources or the commitment 

to continue water quality planning activities within the designated boundaries. 

(c) Impact of de-designation. Once an 

areawide planning agency’s designation 

has been withdrawn the State agency 

shall assume direct responsibility for 

continued water quality planning and 

oversight of implementation within the 

area. 

(d) Designated management agencies 

(DMA). In accordance with section 

208(c)(1) of the Act, management agencies shall be designated by the Governor in consultation with the designated planning agency. EPA shall approve such designations unless the 

DMA lacks the legal, financial and 

managerial authority required under 

section 208(c)(2) of the Act. Designated 

management agencies shall carry out 

responsibilities specified in Water 


Lhorne on DSK5TPTVN1PROD with CFR
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Environmental Protection Agency § 130.10 

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. 

§ 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 qualitylimited 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 

§130.7(b) in accordance with the schedule set for in §130.7(d)(1). 

(Approved by the Office of Management and 

Budget under control number 2040–0071) 

(3) Total maximum daily loads 

(TMDLs) (303(d)); and 

(4) Water quality management 

(WQM) plan and certified and approved 

WQM plan updates (208, 303(e)). (Paragraph (b)(1), (4) approved by OMB under 

the control number 2010–0004). 

(c) The form and content of required 

State submittals to EPA may be tailored to reflect the organization and 

needs of the State, as long as the requirements and purposes of the Act, 

this part and, where applicable, 40 CFR 

parts 29, 30, 33 and 35, subparts A and J 

are met. The need for revision and 

schedule of submittals shall be agreed 

to annually with EPA as the States annual work program is developed. 

(d) Not later than February 4, 1989, 

each State shall submit to EPA for review, approval, and implementation— 

(1) A list of those waters within the 

State which after the application of effluent limitations required under section 301(b)(2) of the CWA cannot reasonably be anticipated to attain or 

maintain (i) water quality standards 

for such waters reviewed, revised, or 

adopted in accordance with section 

303(c)(2)(B) of the CWA, due to toxic 

pollutants, or (ii) that water quality 

which shall assure protection of public 

health, public water supplies, agricultural and industrial uses, and the protection and propagation of a balanced 

population of shellfish, fish and wildlife, and allow recreational activities 

in and on the water; 

(2) A list of all navigable waters in 

such State for which the State does not 

expect the applicable standard under 

section 303 of the CWA will be achieved 

after the requirements of sections 

301(b), 306, and 307(b) are met, due entirely or substantially to discharges 

from point sources of any toxic pollutants listed pursuant to section 307(a); 

(3) For each segment of navigable 

waters included on such lists, a determination of the specific point source 

discharging any such toxic pollutant 

which is believed to be preventing or 

impairing such water quality and the 

amount of each such toxic pollutant 

discharged by each such source. 

(Approved by the Office of Management and 

Budget under control number 2040–0152) 

(4) For the purposes of listing waters 

under §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. 


Lhorne on DSK5TPTVN1PROD with CFR
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§ 130.10 40 CFR Ch. I (7–1–15 Edition) 

(5) If a water meets either of the two 

conditions listed below the water must 

be listed under §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 

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. 


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Environmental Protection Agency § 130.10 

(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 

§130.10(d)(6); or changes in conditions, 

e.g., new control equipment, or elimination of discharges. 

(8) The Regional Administrator shall 

approve or disapprove each list required by paragraphs (d)(1), (d)(2), and 

(d)(3) of this section no later than June 

4, 1989. The Regional Administrator 

shall approve each list required under 

paragraphs (d)(1), (d)(2), and (d)(3) of 

this section only if it meets the regulatory requirements for listing under 

paragraphs (d)(1), (d)(2), and (d)(3) of 

this section and if the state has met all 

the requirements of paragraphs (d)(6) 

and (d)(7) of this section. 

(9) If a state fails to submit lists in 

accordance with paragraph (d) of this 

section or the Regional Administrator 

does not approve the lists submitted by 

such state in accordance with this 

paragraph, then not later than June 4, 

1990, the Regional Administrator, in 

cooperation with such state, shall implement the requirements of CWA section 304(l) (1) and (2) in such state. 

(10) If the Regional Administrator 

disapproves a state’s decision with respect to one or more of the waters required under paragraph (d) (1), (2), or 

(3) of this section, or one or more of the 

individual control strategies required 

pursuant to section 304(l)(1)(D), then 

not later than June 4, 1989, the Regional Administrator shall distribute 

the notice of approval or disapproval 

given under this paragraph to the appropriate state Director. The Regional 

Administrator shall also publish a notice of availability, in a daily or weekly newspaper with state-wide circulation or in the FEDERAL REGISTER, for 

the notice of approval or disapproval. 

The Regional Administrator shall also 


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§ 130.11 40 CFR Ch. I (7–1–15 Edition) 

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] 

§ 130.11 Program management. 

(a) State agencies may apply for 

grants under sections 106, 205(j) and 

205(g) to carry out water quality planning and management activities. Interstate agencies may apply for grants 

under section 106 to carry out water 

quality planning and management activities. Local or regional planning organizations may request 106 and 205(j) 

funds from a State for planning and 

management activities. Grant administrative requirements for these funds 

appear in 40 CFR parts 25, 29, 30, 33 and 

35, subparts A and J. 

(b) Grants under section 106 may be 

used to fund a wide range of activities, 

including but not limited to assessments of water quality, revision of 

water quality standards (WQS), development of alternative approaches to 

control pollution, implementation and 

enforcement of control measures and 

development or implementation of 

ground water programs. Grants under 

section 205(j) may be used to fund 

water quality management (WQM) 

planning activities but may not be 

used to fund implementation of control 

measures (see part 35, subpart A). Section 205(g) funds are used primarily to 

manage the wastewater treatment 

works construction grants program 

pursuant to the provisions of 40 CFR 

part 35, subpart J. A State may also 

use part of the 205(g) funds to administer approved permit programs under 

sections 402 and 404, to administer a 

statewide waste treatment management program under section 208(b)(4) 

and to manage waste treatment construction grants for small communities. 

(c) Grant work programs for water 

quality planning and management 

shall describe geographic and functional priorities for use of grant funds 

in a manner which will facilitate EPA 

review of the grant application and 

subsequent evaluation of work accomplished with the grant funds. A State’s 

305(b) Report, WQM plan and other 

water quality assessments shall identify the State’s priority water quality 

problems and areas. The WQM plan 

shall contain an analysis of alternative 

control measures and recommendations to control specific problems. 

Work programs shall specify the activities to be carried out during the period 

of the grant; the cost of specific activities; the outputs, for example, permits 

issued, intensive surveys, wasteload allocations, to be produced by each activity; and where applicable, schedules indicating when activities are to be completed. 


Lhorne on DSK5TPTVN1PROD with CFR
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Environmental Protection Agency Pt. 131 

(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. 

§ 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. 

§ 130.15 Processing application for Indian tribes. 

The Regional Administrator shall 

process an application of an Indian 

Tribe submitted under §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 

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. 


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§ 131.1 40 CFR Ch. I (7–1–15 Edition) 

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 [Reserved] 

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. 

131.44 Florida. 

AUTHORITY: 33 U.S.C. 1251 et seq. 

SOURCE: 48 FR 51405, Nov. 8, 1983, unless 

otherwise noted. 

Subpart A—General Provisions 

§ 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] 

§ 131.2 Purpose. 

A water quality standard defines the 

water quality goals of a water body, or 

portion thereof, by designating the use 

or uses to be made of the water and by 

setting criteria necessary to protect 

the uses. States adopt water quality 

standards to protect public health or 

welfare, enhance the quality of water 

and serve the purposes of the Clean 

Water Act (the Act). ‘‘Serve the purposes of the Act’’ (as defined in sections 101(a)(2) and 303(c) of the Act) 

means that water quality standards 

should, wherever attainable, provide 

water quality for the protection and 

propagation of fish, shellfish and wildlife and for recreation in and on the 

water and take into consideration their 

use and value of public water supplies, 

propagation of fish, shellfish, and wildlife, recreation in and on the water, 

and agricultural, industrial, and other 

purposes including navigation. 

Such standards serve the dual purposes 

of establishing the water quality goals 

for a specific water body and serve as 

the regulatory basis for the establishment of water-quality-based treatment 

controls and strategies beyond the 

technology-based levels of treatment 

required by sections 301(b) and 306 of 

the Act. 

§ 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. 


Lhorne on DSK5TPTVN1PROD with CFR
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Environmental Protection Agency § 131.5 

(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 §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] 

§ 131.4 State authority. 

(a) States (as defined in §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 §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 §131.21(c). 

(c) Where EPA determines that a 

Tribe is eligible to the same extent as 

a State for purposes of water quality 

standards, the Tribe likewise is eligible 

to the same extent as a State for purposes of certifications conducted under 

Clean Water Act section 401. 

[56 FR 64893, Dec. 12, 1991, as amended at 59 

FR 64344, Dec. 14, 1994] 

§ 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 


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§ 131.6 40 CFR Ch. I (7–1–15 Edition) 

(5) Whether the State submission 

meets the requirements included in 

§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] 

§ 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 §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. 

§ 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 §131.3(j) but exclusive of all 

Indian Tribes) and a Tribe which EPA 

has determined is eligible to the same 

extent as a State for purposes of water 

quality standards; 

(3) A reasonable effort to resolve the 

dispute without EPA involvement has 

been made; 

(4) The requested relief is consistent 

with the provisions of the Clean Water 

Act and other relevant law; 

(5) The differing State and Tribal 

water quality standards have been 

adopted pursuant to State and Tribal 

law and approved by EPA; and 

(6) A valid written request has been 

submitted by either the Tribe or the 

State. 

(c) Either a State or a Tribe may request EPA to resolve any dispute 

which satisfies the criteria of paragraph (b) of this section. Written requests for EPA involvement should be 

submitted to the lead Regional Administrator and must include: 

(1) A concise statement of the unreasonable consequences that are alleged 

to have arisen because of differing 

water quality standards; 

(2) A concise description of the actions which have been taken to resolve 

the dispute without EPA involvement; 

(3) A concise indication of the water 

quality standards provision which has 

resulted in the alleged unreasonable 

consequences; 


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Environmental Protection Agency § 131.7 

(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 

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 


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§ 131.8 40 CFR Ch. I (7–1–15 Edition) 

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 nonbinding 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 

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] 

§ 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: 


Lhorne on DSK5TPTVN1PROD with CFR
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Environmental Protection Agency § 131.8 

(1) The Indian Tribe is recognized by 

the Secretary of the Interior and meets 

the definitions in §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 

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 


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§ 131.10 40 CFR Ch. I (7–1–15 Edition) 

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 §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 §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 

§ 131.10 Designation of uses. 

(a) Each State must specify appropriate water uses to be achieved and 

protected. The classification of the 

waters of the State must take into consideration the use and value of water 

for public water supplies, protection 

and propagation of fish, shellfish and 

wildlife, recreation in and on the 

water, agricultural, industrial, and 

other purposes including navigation. In 

no case shall a State adopt waste 

transport or waste assimilation as a 

designated use for any waters of the 

United States. 

(b) In designating uses of a water 

body and the appropriate criteria for 

those uses, the State shall take into 

consideration the water quality standards of downstream waters and shall 

ensure that its water quality standards 

provide for the attainment and maintenance of the water quality standards of 

downstream waters. 

(c) States may adopt sub-categories 

of a use and set the appropriate criteria to reflect varying needs of such 

sub-categories of uses, for instance, to 

differentiate between cold water and 

warm water fisheries. 

(d) At a minimum, uses are deemed 

attainable if they can be achieved by 

the imposition of effluent limits required under sections 301(b) and 306 of 

the Act and cost-effective and reasonable best management practices for 

nonpoint source control. 

(e) Prior to adding or removing any 

use, or establishing sub-categories of a 

use, the State shall provide notice and 

an opportunity for a public hearing 

under §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. 


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Environmental Protection Agency § 131.11 

(g) States may remove a designated 

use which is not an existing use, as defined in §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 §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 

§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. 

§ 131.11 Criteria. 

(a) Inclusion of pollutants: (1) States 

must adopt those water quality criteria that protect the designated use. 

Such criteria must be based on sound 

scientific rationale and must contain 

sufficient parameters or constituents 

to protect the designated use. For 

waters with multiple use designations, 

the criteria shall support the most sensitive use. 

(2) Toxic pollutants. States must review water quality data and information on discharges to identify specific 

water bodies where toxic pollutants 

may be adversely affecting water quality or the attainment of the designated 

water use or where the levels of toxic 

pollutants are at a level to warrant 

concern and must adopt criteria for 

such toxic pollutants applicable to the 

water body sufficient to protect the 

designated use. Where a State adopts 

narrative criteria for toxic pollutants 

to protect designated uses, the State 

must provide information identifying 

the method by which the State intends 

to regulate point source discharges of 

toxic pollutants on water quality limited segments based on such narrative 

criteria. Such information may be included as part of the standards or may 

be included in documents generated by 

the State in response to the Water 

Quality Planning and Management 

Regulations (40 CFR part 35). 

(b) Form of criteria: In establishing 

criteria, States should: 


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458 

§ 131.12 40 CFR Ch. I (7–1–15 Edition) 

(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. 

§ 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. 

§ 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 

§ 131.20 State review and revision of 

water quality standards. 

(a) State review. The State shall from 

time to time, but at least once every 

three years, hold public hearings for 

the purpose of reviewing applicable 

water quality standards and, as appropriate, modifying and adopting standards. Any water body segment with 

water quality standards that do not include the uses specified in section 

101(a)(2) of the Act shall be re-examined every three years to determine if 

any new information has become available. If such new information indicates 

that the uses specified in section 

101(a)(2) of the Act are attainable, the 

State shall revise its standards accordingly. Procedures States establish for 

identifying and reviewing water bodies 

for review should be incorporated into 

their Continuing Planning Process. 

(b) Public participation. The State 

shall hold a public hearing for the purpose of reviewing water quality standards, in accordance with provisions of 

State law, EPA’s water quality management regulation (40 CFR 130.3(b)(6)) 

and public participation regulation (40 

CFR part 25). The proposed water quality standards revision and supporting 

analyses shall be made available to the 

public prior to the hearing. 

(c) Submittal to EPA. The State shall 

submit the results of the review, any 

supporting analysis for the use attainability analysis, the methodologies 

used for site-specific criteria development, any general policies applicable 


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Environmental Protection Agency § 131.21 

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. 

§ 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 

§§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 adopted a water quality 

standard that is effective 

under State or Tribal law 

and has been submitted to 

EPA before May 30, 

2000 . . .

. . . the State or Tribe’s 

water quality standard is 

the applicable water quality 

standard for purposes of 

the Act . . .

. . . EPA has promulgated a 

more stringent water quality 

standard for the State or 

Tribe that is in effect . . .

. . . the EPA-promulgated 

water quality standard is 

the applicable water quality 

standard for purposes of 

the Act until EPA withdraws 

the Federal water quality 

standard. 

(2) A State or authorized Tribe 

adopts a water quality standard that goes into effect 

under State or Tribal law on 

or after May 30, 2000 . . .

. . . once EPA approves that 

water quality standard, it 

becomes the applicable 

water quality standard for 

purposes of the Act . . .

. . . EPA has promulgated 

a more stringent water 

quality standard for the 

State or Tribe that is in effect . . .

. . . the EPA promulgated 

water quality standard is 

the applicable water quality 

standard for 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 

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] 


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§ 131.22 40 CFR Ch. I (7–1–15 Edition) 

§ 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 

§ 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] 

§ 131.32 [Reserved] 

§ 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 °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 


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Environmental Protection Agency § 131.33 

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 

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, 


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§ 131.33 40 CFR Ch. I (7–1–15 Edition) 

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, 

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-toone 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 


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Environmental Protection Agency § 131.33 

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 

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, 

Lightning 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 


Lhorne on DSK5TPTVN1PROD with CFR
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§ 131.33 40 CFR Ch. I (7–1–15 Edition) 

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 

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, 


Lhorne on DSK5TPTVN1PROD with CFR
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Environmental Protection Agency § 131.33 

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 

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 


Lhorne on DSK5TPTVN1PROD with CFR
466 

§ 131.33 40 CFR Ch. I (7–1–15 Edition) 

Threemile Creek, Split Creek, Steep 

Creek, Sugar Creek, Summit Creek, 

Tamarack Creek, Teepee Creek, 

Threemile Creek, Trail Creek, Trapper 

Creek, Trout Creek, Tsum Creek, Twobit 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 

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 


Lhorne on DSK5TPTVN1PROD with CFR
467 

Environmental Protection Agency § 131.33 

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 

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 


Lhorne on DSK5TPTVN1PROD with CFR
468 

§ 131.33 40 CFR Ch. I (7–1–15 Edition) 

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 

listed in paragraph (a)(2) of this section. Any such determination shall be 

made consistent with §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 §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] 


Lhorne on DSK5TPTVN1PROD with CFR
469 

Environmental Protection Agency § 131.34 

§ 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: 

Stream segment name HUC8 Segment # 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: 

Stream segment name HUC8 Segment # 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 

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 


Lhorne on DSK5TPTVN1PROD with CFR
470 

§ 131.34 40 CFR Ch. I (7–1–15 Edition) 

Stream segment name HUC8 Segment # Designated use 

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 

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 


Lhorne on DSK5TPTVN1PROD with CFR
471 

Environmental Protection Agency § 131.34 

Stream segment name HUC8 Segment # Designated use 

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 

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 


Lhorne on DSK5TPTVN1PROD with CFR
472 

§ 131.34 40 CFR Ch. I (7–1–15 Edition) 

Stream segment name HUC8 Segment # Designated use 

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 

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 


Lhorne on DSK5TPTVN1PROD with CFR
473 

Environmental Protection Agency § 131.34 

Stream segment name HUC8 Segment # Designated use 

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 

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 


Lhorne on DSK5TPTVN1PROD with CFR
474 

§ 131.34 40 CFR Ch. I (7–1–15 Edition) 

Stream segment name HUC8 Segment # Designated use 

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 

Negro Creek ................................................................... 11030015 13 Primary Contact Recreation 

Nester Creek .................................................................. 11030015 15 Primary Contact Recreation 

Ninnescah River, West Branch South Fork ................... 11030015 5 Primary Contact Recreation 

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 


Lhorne on DSK5TPTVN1PROD with CFR
475 

Environmental Protection Agency § 131.34 

Stream segment name HUC8 Segment # Designated use 

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 

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 


Lhorne on DSK5TPTVN1PROD with CFR
476 

§ 131.34 40 CFR Ch. I (7–1–15 Edition) 

Stream segment name HUC8 Segment # Designated use 

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 

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 


Lhorne on DSK5TPTVN1PROD with CFR
477 

Environmental Protection Agency § 131.34 

Stream segment name HUC8 Segment # Designated use 

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 

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 


Lhorne on DSK5TPTVN1PROD with CFR
478 

§ 131.34 40 CFR Ch. I (7–1–15 Edition) 

Stream segment name HUC8 Segment # Designated use 

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 

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 


Lhorne on DSK5TPTVN1PROD with CFR
479 

Environmental Protection Agency § 131.34 

Stream segment name HUC8 Segment # Designated use 

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 

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 


Lhorne on DSK5TPTVN1PROD with CFR
480 

§ 131.34 40 CFR Ch. I (7–1–15 Edition) 

Stream segment name HUC8 Segment # Designated use 

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 

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 


Lhorne on DSK5TPTVN1PROD with CFR
481 

Environmental Protection Agency § 131.34 

Stream segment name HUC8 Segment # Designated use 

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 

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 


Lhorne on DSK5TPTVN1PROD with CFR
482 

§ 131.34 40 CFR Ch. I (7–1–15 Edition) 

Stream segment name HUC8 Segment # Designated use 

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 

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 


Lhorne on DSK5TPTVN1PROD with CFR
483 

Environmental Protection Agency § 131.34 

Stream segment name HUC8 Segment # Designated use 

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 

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 


Lhorne on DSK5TPTVN1PROD with CFR
484 

§ 131.34 40 CFR Ch. I (7–1–15 Edition) 

Stream segment name HUC8 Segment # Designated use 

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 

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 


Lhorne on DSK5TPTVN1PROD with CFR
485 

Environmental Protection Agency § 131.34 

Stream segment name HUC8 Segment # Designated use 

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 

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 


Lhorne on DSK5TPTVN1PROD with CFR
486 

§ 131.34 40 CFR Ch. I (7–1–15 Edition) 

Stream segment name HUC8 Segment # Designated use 

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 

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 


Lhorne on DSK5TPTVN1PROD with CFR
487 

Environmental Protection Agency § 131.34 

Stream segment name HUC8 Segment # Designated use 

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 

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 


Lhorne on DSK5TPTVN1PROD with CFR
488 

§ 131.34 40 CFR Ch. I (7–1–15 Edition) 

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 

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 


Lhorne on DSK5TPTVN1PROD with CFR
489 

Environmental Protection Agency § 131.34 

Lake name County Designated use 

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 

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 #2 ......... JOHNSON ................................................. Primary Contact Recreation

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 


Lhorne on DSK5TPTVN1PROD with CFR
490 

§ 131.34 40 CFR Ch. I (7–1–15 Edition) 

Lake name County Designated use 

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 

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 


Lhorne on DSK5TPTVN1PROD with CFR
491 

Environmental Protection Agency § 131.34 

Lake name County Designated use 

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 

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 


Lhorne on DSK5TPTVN1PROD with CFR
492 

§ 131.35 40 CFR Ch. I (7–1–15 Edition) 

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] 

§ 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, 

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 §§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 (§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. 


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Environmental Protection Agency § 131.35 

(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 lowflow from the reservoir. 

(8) Mixing zone or dilution zone means 

a limited area or volume of water 

where initial dilution of a discharge 

takes place; and where numeric water 

quality criteria can be exceeded but 

acutely toxic conditions are prevented 

from occurring. 

(9) pH means the negative logarithm 

of the hydrogen ion concentration. 

(10) Primary contact recreation means 

activities where a person would have 

direct contact with water to the point 

of complete submergence, including 

but not limited to skin diving, swimming, and water skiing. 

(11) Regional Administrator means the 

Administrator of EPA’s Region X. 

(12) Reservation means all land within 

the limits of the Colville Indian Reservation, established on July 2, 1872 by 

Executive Order, presently containing 

1,389,000 acres more or less, and under 

the jurisdiction of the United States 

government, notwithstanding the 

issuance of any patent, and including 

rights-of-way running through the reservation. 

(13) Secondary contact recreation 

means activities where a person’s 

water contact would be limited to the 

extent that bacterial infections of eyes, 

ears, respiratory, or digestive systems 

or urogenital areas would normally be 

avoided (such as wading or fishing). 

(14) Surface water means all water 

above the surface of the ground within 

the exterior boundaries of the Colville 

Indian Reservation including but not 

limited to lakes, ponds, reservoirs, artificial impoundments, streams, rivers, 

springs, seeps and wetlands. 

(15) Temperature means water temperature expressed in Centigrade degrees (C). 

(16) Total dissolved solids (TDS) means 

the total filterable residue that passes 

through a standard glass fiber filter 

disk and remains after evaporation and 

drying to a constant weight at 180 degrees C. it is considered to be a measure of the dissolved salt content of the 

water. 

(17) Toxicity means acute and/or 

chronic toxicity. 

(18) Tribe or Tribes means the Colville 

Confederated Tribes. 

(19) Turbidity means the clarity of 

water expressed as nephelometric turbidity units (NTU) and measured with 

a calibrated turbidimeter. 

(20) Wildlife habitat means the waters 

and surrounding land areas of the Reservation used by fish, other aquatic life 

and wildlife at any stage of their life 

history or activity. 

(e) General considerations. The following general guidelines shall apply 

to the water quality standards and 

classifications set forth in the use designation Sections. 

(1) Classification boundaries. At the 

boundary between waters of different 

classifications, the water quality 

standards for the higher classification 

shall prevail. 

(2) Antidegradation policy. This 

antidegradation policy shall be applicable to all surface waters of the Reservation. 

(i) Existing in-stream water uses and 

the level of water quality necessary to 


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§ 131.35 40 CFR Ch. I (7–1–15 Edition) 

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; 

(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. 


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Environmental Protection Agency § 131.35 

(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. 

(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 


Lhorne on DSK5TPTVN1PROD with CFR
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§ 131.35 40 CFR Ch. I (7–1–15 Edition) 

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 

stages 1 2

Other 

life 

stages 

7 day mean ........................................... 9.5 (6.5) 3 NA 

1 day minimum 4 .................................... 8.0 (5.0) 6.5 

1These 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) 

4All minima should be considered as instantaneous concentrations to be achieved at all times. 

(C) Total dissolved gas concentrations shall not exceed 110 percent of 

the saturation value for gases at the 

existing atmospheric and hydrostatic 

pressures at any point of sample collection. 

(D) Temperature shall not exceed 21.0 

degrees C due to human activities. 

Temperature increases shall not, at 

any time, exceed t=34/(T+9). 

(1) When natural conditions exceed 

21.0 degrees C no temperature increase 

will be allowed which will raise the receiving water temperature by greater 

than 0.3 degrees C. 

(2) For purposes hereof, ‘‘t’’ represents the permissive temperature 

change across the dilution zone; and 

‘‘T’’ represents the highest existing 

temperature in this water classification outside of any dilution zone. 

(3) Provided that temperature increase resulting from nonpoint source 

activities shall not exceed 2.8 degrees 

C, and the maximum water temperature shall not exceed 21.3 degrees C. 

(E) pH shall be within the range of 6.5 

to 8.5 with a human-caused variation of 

less than 0.5 units. 

(F) Turbidity shall not exceed 10 NTU 

over background turbidity when the 

background turbidity is 50 NTU or less, 

or have more than a 20 percent increase 

in turbidity when the background turbidity is more than 50 NTU. 

(G) Toxic, radioactive, nonconventional, or deleterious material concentrations shall be less than those of 

public health significance, or which 

may cause acute or chronic toxic conditions to the aquatic biota, or which 

may adversely affect designated water 

uses. 

(4) Class IV (Fair)—(i) Designated uses. 

The designated uses include but are not 

limited to, the following: 

(A) Water supply (industrial). 

(B) Stock watering. 

(C) Fish (salmonid and other fish migration). 

(D) Recreation (secondary contact 

recreation, sport fishing, boating and 

aesthetic enjoyment). 

(E) Commerce and navigation. 

(ii) Water quality criteria. (A) Dissolved oxygen. 

During peri- ods of 

salmonid 

and other 

fish migra- tion 

During all 

other time 

periods 

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). 

2All 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. 


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Environmental Protection Agency § 131.35 

(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 

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. 


Lhorne on DSK5TPTVN1PROD with CFR
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§ 131.35 40 CFR Ch. I (7–1–15 Edition) 

(g) General classifications. General 

classifications applying to various surface waterbodies not specifically classified under §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 preexisting lakes are classified as Lake 

Class. 

(7) All wetlands are assigned to the 

Special Resource Water Class. 

(8) All other waters not specifically 

assigned to a classification of the reservation are classified as Class II. 

(h) Specific classifications. Specific 

classifications for surface waters of the 

Colville Indian Reservation are as follows: 

(1) Streams: 

Alice Creek ......................... Class III 

Anderson Creek ................. Class III 

Armstrong Creek ................ Class III 

Barnaby Creek ................... Class II 

Bear Creek ......................... Class III 

Beaver Dam Creek ............. Class II 

Bridge Creek ...................... Class II 

Brush Creek ....................... Class III 

Buckhorn Creek .................. Class III 

Cache Creek ...................... Class III 

Canteen Creek ................... Class I 

Capoose Creek .................. Class III 

Cobbs Creek ...................... Class III 

Columbia River from Chief 

Joseph Dam to Wells 

Dam.

Columbia River from northern Reservation boundary to Grand Coulee 

Dam (Roosevelt Lake).

Columbia River from Grand 

Coulee Dam to Chief Joseph Dam.

Cook Creek ........................ Class I 

Cooper Creek ..................... Class III 

Cornstalk Creek .................. Class III 

Cougar Creek ..................... Class I 

Coyote Creek ..................... Class II 

Deerhorn Creek .................. Class III 

Dick Creek .......................... Class III 

Dry Creek ........................... Class I 

Empire Creek ..................... Class III 

Faye Creek ......................... Class I 

Forty Mile Creek ................. Class III 

Gibson Creek ..................... Class I 

Gold Creek ......................... Class II 

Granite Creek ..................... Class II 

Grizzly Creek ...................... Class III 

Haley Creek ....................... Class III 

Hall Creek .......................... Class II 

Hall Creek, West Fork ........ Class I 

Iron Creek .......................... Class III 

Jack Creek ......................... Class III 

Jerred Creek ....................... Class I 

Joe Moses Creek ............... Class III 

John Tom Creek ................ Class III 

Jones Creek ....................... Class I 

Kartar Creek ....................... Class III 

Kincaid Creek ..................... Class III 

King Creek .......................... Class III 

Klondyke Creek .................. Class I 

Lime Creek ......................... Class III 

Little Jim Creek .................. Class III 

Little Nespelem .................. Class II 

Louie Creek ........................ Class III 

Lynx Creek ......................... Class II 

Manila Creek ...................... Class III 

McAllister Creek ................. Class III 

Meadow Creek ................... Class III 

Mill Creek ........................... Class II 

Mission Creek ..................... Class III 

Nespelem River .................. Class II 

Nez Perce Creek ................ Class III 

Nine Mile Creek .................. Class II 

Nineteen Mile Creek ........... Class III 

No Name Creek ................. Class II 

North Nanamkin Creek ....... Class III 

North Star Creek ................ Class III 

Okanogan River from Reservation north boundary 

to Columbia River.

Class II 

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 


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Environmental Protection Agency § 131.36 

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] 

§ 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. 


Lhorne on DSK5TPTVN1PROD with CFR
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§ 131.36 40 CFR Ch. I (7–1–15 Edition) A B Freshwater C Saltwater D Human Health (10¥6 risk for carcinogens) For consumption of: (#) Compound CAS Number Criterion Maximum Conc. d

(μg/L) 

(B1) 

Criterion 

Continuous 

Conc. d

(μg/L) 

(B2) 

Criterion 

Maximum 

Conc. d

(μg/L) 

(C1) 

Criterion 

Continuous 

Conc. d

(μg/L) 

(C2) 

Water & 

Organisms 

(μg/L) 

(D1) 

Organisms 

Only 

(μg/L) 

(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 


Lhorne on DSK5TPTVN1PROD with CFR
501 

Environmental Protection Agency § 131.36 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 


Lhorne on DSK5TPTVN1PROD with CFR
502 

§ 131.36 40 CFR Ch. I (7–1–15 Edition) A B Freshwater C Saltwater D Human Health (10¥6 risk for carcinogens) For consumption of: (#) Compound CAS Number Criterion Maximum Conc. d

(μg/L) 

(B1) 

Criterion 

Continuous 

Conc. d

(μg/L) 

(B2) 

Criterion 

Maximum 

Conc. d

(μg/L) 

(C1) 

Criterion 

Continuous 

Conc. d

(μg/L) 

(C2) 

Water & 

Organisms 

(μg/L) 

(D1) 

Organisms 

Only 

(μg/L) 

(D2) 

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 ac109 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 a114 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 

(PCBs) ................................................................... .......................... .......................... .......................... .......................... .......................... 0.00017 q 0.00017 q 

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 


Lhorne on DSK5TPTVN1PROD with CFR
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Environmental Protection Agency § 131.36 

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. μg/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 

§131.36(c) and multiplied by an appropriate 

dissolved conversion factor as defined in 

§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 μg/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 × WER 

CCC = column B2 or C2 value × 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 


Lhorne on DSK5TPTVN1PROD with CFR
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§ 131.36 40 CFR Ch. I (7–1–15 Edition) 

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} × 

Acute Conversion Factor 

CCC=WER exp { mC[ln(hardness)]+bC} × 

Chronic Conversion Factor 

Final CMC and CCC values should be rounded 

to two significant figures. 

Metal mA bA mC bC

Freshwater conversion 

factors 

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: 

aThe freshwater conversion factors (CF) for cadmium and lead are hardness-dependent and can be calculated for any hardness [see limitations in § 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 onehour 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 


Lhorne on DSK5TPTVN1PROD with CFR
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Environmental Protection Agency § 131.36 

hydrologically; and the harmonic mean 

flow is a long term mean flow value calculated by dividing the number of daily 

flows analyzed by the sum of the reciprocals of those daily flows. 

(iii) If a State does not have such a 

low flow value for numeric standards 

compliance, then none shall apply and 

the criteria included in paragraph (d) 

of this section herein apply at all 

flows. 

(3) The aquatic life criteria in the 

matrix in paragraph (b) of this section 

apply as follows: 

(i) For waters in which the salinity is 

equal to or less than 1 part per thousand 95% or more of the time, the applicable criteria are the freshwater criteria in Column B; 

(ii) For waters in which the salinity 

is equal to or greater than 10 parts per 

thousand 95% or more of the time, the 

applicable criteria are the saltwater 

criteria in Column C; and 

(iii) For waters in which the salinity 

is between 1 and 10 parts per thousand 

as defined in paragraphs (c)(3) (i) and 

(ii) of this section, the applicable criteria are the more stringent of the 

freshwater or saltwater criteria. However, the Regional Administrator may 

approve the use of the alternative 

freshwater or saltwater criteria if scientifically defensible information and 

data demonstrate that on a site-specific basis the biology of the waterbody 

is dominated by freshwater aquatic life 

and that freshwater criteria are more 

appropriate; or conversely, the biology 

of the waterbody is dominated by saltwater aquatic life and that saltwater 

criteria are more appropriate. 

(4) Application of metals criteria. (i) 

For purposes of calculating freshwater 

aquatic life criteria for metals from 

the equations in paragraph (b)(2) of 

this section, the minimum hardness allowed for use in those equations shall 

not be less than 25 mg/l, as calcium 

carbonate, even if the actual ambient 

hardness is less than 25 mg/l as calcium 

carbonate. The maximum hardness 

value for use in those equations shall 

not exceed 400 mg/l as calcium carbonate, even if the actual ambient 

hardness is greater than 400 mg/l as 

calcium carbonate. The same provisions apply for calculating the metals 

criteria for the comparisons provided 

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 watereffect ratio is computed as a specific 

pollutant’s acute or chronic toxicity 

values measured in water from the site 

covered by the standard, divided by the 

respective acute or chronic toxicity 

value in laboratory dilution water. 

(d) Criteria for Specific Jurisdictions— 

(1) Rhode Island, EPA Region 1. (i) All 

waters assigned to the following use 

classifications in the Water Quality 

Regulations for Water Pollution Control adopted under Chapters 46–12, 42– 

17.1, and 42–35 of the General Laws of 

Rhode Island are subject to the criteria 

in paragraph (d)(1)(ii) of this section, 

without exception: 

6.21 Freshwater 6.22 Saltwater: 

Class A .................... Class SA 

Class B .................... Class SB 

Class C .................... Class SC 

(ii) The following criteria from the 

matrix in paragraph (b)(1) of this section apply to the use classifications 

identified in paragraph (d)(1)(i) of this 

section: 

Use classification Applicable criteria 

Class A ..................................

Class B waters where water 

supply use is designated 

These classifications are assigned the criteria in Column D1—#2, 68 

Class B waters where water 

supply use is not designated.

Class C; 

Class SA; 

Class SB; 

Class SC 

Each of these classifications 

is assigned the criteria in: 

Column D2—#2, 68 

(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. 


Lhorne on DSK5TPTVN1PROD with CFR
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§ 131.36 40 CFR Ch. I (7–1–15 Edition) 

(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)–(4) Reserved] 

(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 .........................................................................................

Class III (marine) .........................................................................

This classification is assigned the criteria in: 

Column D2—#16 

Class III (freshwater) ................................................................... This classification is assigned the criteria in: 

Column D2—#16 

(iii) The human health criteria shall 

be applied at the State-adopted 10¥6

risk level. 

(7)–(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 


Lhorne on DSK5TPTVN1PROD with CFR
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Environmental Protection Agency § 131.36 

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: 

Water and use classification Applicable criteria 

Waters of the Sacramento-San Joaquin Delta within Regional Water Board 5 Column C1—polluntant 14. 

Column C2—pollutant 14. 

Waters of the State defined as bays or estuaries except the 

Sacramento-San Joaquin Delta and San Francisco Bay 

These waters are assigned the 

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 


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§ 131.36 40 CFR Ch. I (7–1–15 Edition) 

Water and use classification Applicable criteria 

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 

These waters are assigned the 

criteria in: 

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 use 

designation 

These waters are 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 

Merced River to Vernalis 

In addition to 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 Joaquin River, Sack Dam to the mouth of the Merced River In addition to the criteria 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 

Suisun Bay and the Sacramento-San Joaquin Delta 

These waters are assigned 

the criteria in: 

Column B1—pollutants 5a, 

10* and 14. 

Column B2—pollutants 5a, 

10* 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. 

All inland waters of the United States or enclosed bays and 

estuaries that are waters of the United States that include 

an MUN use designation and that the State has either excluded or partially excluded from coverage under its Water 

Quality Control Plan for Inland Surface Waters of California, Tables 1 and 2, or its Water Quality Control Plan 

for Enclosed Bays and Estuaries of California, Tables 1 and 

2, or has deferred applicability of those tables. (Category 

(a), (b), and (c) waters described on page 6 of Water Quality 

Control Plan for Inland Surface Waters of California or 

page 6 of its Water Quality Control Plan for Enclosed Bays 

and Estuaries of California.) 

These waters are assigned the 

criteria for pollutants for 

which the State does not 

apply Table 1 or 2 standards. These criteria are: 

Column B1—all pollutants 

Column B2—all pollutants 

Column D1—all pollutants 

except #2 


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Environmental Protection Agency § 131.36 

Water and use classification Applicable criteria 

All inland waters of the United States that do not include an 

MUN use designation and that the State has either excluded or partially excluded from coverage under its Water 

Quality Control Plan for Inland Surface Waters of California, Tables 1 and 2, or has deferred applicability of these 

tables. (Category (a), (b), and (c) waters described on page 6 

of Water Quality Control Plan for Inland Surface Waters of 

California.) 

These waters are assigned the 

criteria for pollutants for 

which the State does not 

apply Table 1 or 2 standards. These 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 the United 

States that do not include an MUN designation and that 

the State has either excluded or partially excluded from 

coverage under its Water Quality Control Plan for Inland 

Surface Waters of California, Tables 1 and 2, or its Water 

Quality Control Plan for Enclosed Bays and Estuaries of 

California, Tables 1 and 2, or has deferred applicability of 

those tables. (Category (a), (b), and (c) waters described on 

page 6 of Water Quality Control Plan for Inland Surface 

Waters of California or page 6 of its Water Quality Control 

Plan for Enclosed Bays and Estuaries of California.) 

These waters are assigned the 

criteria for pollutants for 

which the State does not 

apply Table 1 or 2 standards. These criteria are: 

Column B1—all pollutants 

Column B2—all 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 in NAC 

445.1339 where Municipal or domestic supply 

is a designated use 

These waters are assigned the criteria in: 

Column B1—pollutant #118 

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 in NAC 

445.1339 where Municipal or domestic supply 

is not a designated use 

These waters are assigned the criteria in: 

Column B1—pollutant #118 

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: 


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§ 131.37 40 CFR Ch. I (7–1–15 Edition) 

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, (2)(C), (2)(D) .............................. Column D2—#s 14, 16, 18–21, 22, 23, 26, 27, 29, 30, 32, 37, 

38, 42–44, 46, 53, 54, 55, 59–62, 64, 66, 68, 73, 74, 78, 82, 

85, 88–93, 95, 96, 98, 102–105, 107–111, 115–126. 

(iii) The human health criteria shall 

be applied at the State-proposed risk 

level of 10¥5. To determine appropriate 

value for carcinogens, see footnote c in 

the criteria matrix in paragraph (b)(1) 

of this section. 

(13) [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 §131.36, see the List of CFR 

Sections Affected, which appears in the 

Finding Aids section of the printed volume 

and at www.fdsys.gov. 

§ 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: 


Lhorne on DSK5TPTVN1PROD with CFR
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Environmental Protection Agency § 131.37 

(1) Estuarine habitat criteria. (i) General rule. (A) Salinity (measured at the 

surface) shall not exceed 2640 

micromhos/centimeter specific conductance at 25 °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 °C 

(measured as a 14-day moving average) 

at the specific locations noted in Table 

1 near Roe Island and Chipps Island for 

the number of days each month in the 

February 1 to June 30 period computed 

by reference to the following formula: 

Number of days required in Month X = 

Total number of days in Month×* (1 

¥ 1/(1+eK) 

where 

K = A + (B*natural logarithm of the previous 

month’s 8-River Index); 

A and B are determined by reference to 

Table 1 for the Roe Island and Chipps Island locations; 

x is the calendar month in the February 1 to 

June 30 period; 

and e is the base of the natural (or Napierian) logarithm. 

Where the number of days computed in 

this equation in paragraph (a)(1)(i)(A) 

of this section shall be rounded to the 

nearest whole number of days. When 

the previous month’s 8-River Index is 

less than 500,000 acre-feet, the number 

of days required for the current month 

shall be zero. 

TABLE 1. CONSTANTS APPLICABLE TO EACH OF THE MONTHLY EQUATIONS TO DETERMINE MONTHLY

REQUIREMENTS DESCRIBED. 

Month X 

Chipps Island Roe Island (if triggered) 

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 °F: 

SRFMC = 1.35 

At temperatures between 61 °F and 72 

°F: SRFMC = 6.96–.092 * Fahrenheit 

temperature 

At temperatures greater than 72 °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 


Lhorne on DSK5TPTVN1PROD with CFR
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§ 131.37 40 CFR Ch. I (7–1–15 Edition) 

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 


Lhorne on DSK5TPTVN1PROD with CFR
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Environmental Protection Agency § 131.37 

stated value) for each experimental release conducted over a three year period (the current year and the previous 

two years) shall be greater than or 

equal to zero. 

(A) Fish for release are to be tagged 

at the hatchery with coded-wire tags, 

and fin clipped. Approximately 50,000 to 

100,000 fish of smolt size (size greater 

than 75 mm) are released for each survival index estimate, depending on expected mortality. As a control for the 

ocean recovery survival index, one or 

two groups per season are released at 

Benicia or Pt. Chicago. From each upstream release of tagged fish, fish are 

to be caught over a period of one to 

two weeks at Chipps Island. Daylight 

sampling at Chipps Island with a 9.1 by 

7.9 m, 3.2 mm cod end, midwater trawl 

is begun 2 to 3 days after release. When 

the first fish is caught, full-time trawling 7 days a week should begin. Each 

day’s trawling consists of ten 20 

minute tows generally made against 

the current, and distributed equally 

across the channel. 

(B) The Chipps Island smolt survival 

index is calculated as: 

SSI=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: 


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§ 131.37 40 CFR Ch. I (7–1–15 Edition) 

Location Sampling site Nos (I–- 

A/RKI) Parameter Description Index type San Joaquin Valley Index Dates Values 

San Joaquin 

River at 

Jersey 

Point, San 

Andreas 

Landing, 

Prisoners 

Point, 

Buckley 

Cove, 

Rough 

and 

Ready Island, 

Brandt 

Bridge, 

Mossdale, 

and 

Vernalis.

D15/RSAN018, 

C4/RSAN032, 

D29/RSAN038, 

P8/RSAN056, 

-/RSAN062, 

C6/RSAN073, 

C7/RSAN087, 

C10/RSAN112 

Specific .....

Conductance.

@ 25 °C ...

14-day running average of 

mean 

daily for 

the period not 

more 

than 

value 

shown, in 

mmhos.

Not Applicable.>2.5 MAF April 1 to 

May 31.

0.44 micromhos. 

San Joaquin 

River at 

Jersey 

Point, San 

Andreas 

Landing 

and Prisoners 

Point.

D15/RSAN018, 

C4/RSAN032, 

D29/RSAN038 

Specific 

Conductance.

14-day running average of 

mean 

daily for 

the period not 

more 

than 

value 

shown, in 

mmhos.

Not Applicable.≤2.5 MAF April 1 to 

May 31.

0.44 micromhos. 

(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] 


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Environmental Protection Agency § 131.38 

§ 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: 


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Environmental Protection Agency § 131.38 


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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: 


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Environmental Protection Agency § 131.38 

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 value×WER; CCC = column 

B2 or C2 value×WER. 

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 §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 §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 SacramentoSan Joaquin Delta within California Regional Water Board 5, but excluding the San 

Francisco Bay. 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 


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§ 131.38 40 CFR Ch. I (7–1–15 Edition) 

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 × (Acute Conversion 

Factor) × (exp{mA[1n (hardness)]+bA}) 

(ii) CCC = WER × (Chronic Conversion 

Factor) × (exp{mC[ln(hardness)]+bC}) 

(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: 

Metal 

Conversion factor (CF) for 

freshwater acute 

criteria 

CF for freshwater chronic 

criteria 

CF for saltwater 

acute criteria 

CF a for saltwater chronic 

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 

Silver ........................................................................... 0 .85 (d) 0 .85 (d) 


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Environmental Protection Agency § 131.38 

Metal 

Conversion factor (CF) for 

freshwater acute 

criteria 

CF for freshwater chronic 

criteria 

CF for saltwater 

acute criteria 

CF a for saltwater chronic 

criteria 

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. cBioaccumulative compound and inappropriate to adjust to percent dissolved. 

dEPA 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 §131.36(b)(1). 

(v) Table 3 to paragraph (b)(2) of this 

section: 

Acute Chronic 

Cadmium ......................... CF=1.136672—[(ln {hardness}) (0.041838)] ....... CF = 1.101672—[(ln {hardness})(0.041838)] 

Lead ................................ CF=1.46203—[(ln {hardness})(0.145712)] .......... CF = 1.46203—[(ln {hardness})(0.145712)] 

(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 Stateadopted 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. 

4. 1 B 3 is biologically based and indicates 

an allowable exceedence of once every 3 


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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, 

EPA–823–B–94–001, February 1994, or alternatively, other scientifically defensible methods adopted by the State as 


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Environmental Protection Agency § 131.38 

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 States or 

enclosed bays and estuaries that are waters 

of the United States that include a MUN 

use designation.

(A) Columns B1 and B2—all pollutants 

(B) Columns C1 and C2—all pollutants 

(C) Column D1—all pollutants 

(ii) All inland waters of the United States or 

enclosed bays and estuaries that are waters 

of the United States that do not include a 

MUN use designation.

(A) Columns B1 and B2—all pollutants 

(B) Columns C1 and C2—all pollutants 

(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 §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 

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 


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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; 78 FR 20255, Apr. 4, 2013] 

EDITORIAL NOTE: At 66 FR 9961, Feb. 13, 

2001, §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: 

§ 131.38 Establishment of Numeric Criteria 

for priority toxic pollutants for the State 

of California. 

* * * * * 

(b)(1) * * * 


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Environmental Protection Agency § 131.38 A B Freshwater C Saltwater D Human health (10¥6) risk for carcinogens) For consumption of: # Compound CAS number Criterion maximum conc. (μg/ L) d B1 Criterion continous conc. (μg/ L) d B2 Criterion maximum conc. (μg/ L) d C1 Criterion continious conc. (μg/ L) d C2 Water & organisms 

(μg/L) 

D1 

Organisms 

only 

(μg/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. μg/L equals micrograms per liter. 

* * * * * * * 

tThese 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. 


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§ 131.40 40 CFR Ch. I (7–1–15 Edition) 

* * * * * 

§ 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 Rı ́o Bayamo ́n .......... Punta El Morro ....................... Primary Contact 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 


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Environmental Protection Agency § 131.41 

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] 

§ 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. 


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§ 131.41 40 CFR Ch. I (7–1–15 Edition) 

(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: 

A 

Indicator d

B 

Geometric mean 

C 

Single sample maximum 

(per 100 ml) 

C1 

Designated bathing beach 

(75% confidence 

level) 

C2 

Moderate use 

costal recreation 

waters 

(82% confidence 

level) 

C3 

Light use coastal 

recreation waters 

(90% confidence 

level) 

C4 

Infrequent use 

coastal recreation 

waters 

(95% confidence 

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 + (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: 

A 

Indicator 

B 

Geometric mean 

C 

Single sample maximum 

(per 100 ml) 

C1 

Designated bathing beach 

(75% confidence 

level) 

C2 

Moderate use 

coastal recreation 

waters 

(82% confidence 

level) 

C3 

Light use coastal 

recreation waters 

(90% confidence 

level) 

C4 

Infrequent use 

coastal recreation 

waters 

(95% 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 + (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 Stateadopted 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. 


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Environmental Protection Agency § 131.42 

(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 §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 qualitybased effluent limitations based on 

water quality criteria set forth in paragraph (c) of this section, the permittee 

shall comply with such water qualitybased 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 qualitybased 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] 

§ 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 


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§ 131.42 40 CFR Ch. I (7–1–15 Edition) 

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-byparameter 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 parameterby-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 Presentacio ́n, Evaluacio ́n y 

Tra ́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 


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Environmental Protection Agency § 131.42 

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 


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§ 131.44 40 CFR Ch. I (7–1–15 Edition) 

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] 

§ 131.44 Florida. 

(a) Phosphorus Rule. (1) The document 

entitled ‘‘Florida Administrative Code, 

Chapter 62–302, Surface Water Quality 

Standards, Section 62–302.540, Water 

Quality Standards for Phosphorus 

Within the Everglades Protection Area, 

Amended May 25, 2005, as annotated by 

EPA’’ (Phosphorus Rule), is incorporated by reference as described in 

paragraph (a)(2). EPA is not incorporating the full text of this document, 

but correcting specified portions of the 

Phosphorus Rule as directed by a federal district court as indicated by the 

strikeout markings. The EPA is only 

incorporating by reference these 

crossed-out portions in the Florida Administrative Code 62–302.540. The Director of the Federal Register approves 

this incorporation by reference in accordance with 5 U.S.C. 552(a). Copies of 

the document may be inspected and obtained from the docket associated with 

this rulemaking (Docket Number EPA– 

HQ–OW–2011–0515) at http:// 

www.regulations.gov electronically, at 

EPA’s Water Docket (Address: 1301 

Constitution Avenue NW., EPA West, 

Room B102, Washington, DC 20460, telephone number: 202–566–2426), at the National Archives and Records Administration (NARA), and finally, on the 

EPA Web site associated with this rulemaking at http://water.epa.gov/lawsregs/ 

rulesregs/floridaevergladeslindex.cfm. 

For information on the availability of 

this material at NARA, call 202–741– 

6030, or go to the following Web site 

http://www.archives.gov/federallregister/ 

codeloflfederallregulations/ 

ibrllocations.html. EPA adopts and 

identifies the portions of the document 

that have strikeout markings as portions of the Phosphorus Rule that EPA 

disapproved on December 3, 2009, and 

that are not applicable water quality 

standards for the purposes of the Clean 


Lhorne on DSK5TPTVN1PROD with CFR
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Environmental Protection Agency § 131.44 

Water Act. Remaining portions of the 

Phosphorus Rule that EPA had previously approved are applicable water 

quality standards for the purposes of 

the Clean Water Act but are not codified as federal regulations. 

(2) In the Phosphorus Rule, strike the 

following text: 

(i) The entire paragraph (1)(a); 

(ii) The entire paragraph (1)(b)(2); 

(iii) The entire paragraph and subparagraphs (2)(b), (2)(c), (2)(d), (2)(e), 

(2)(e)(1), (2)(e)(2) and 2(f); 

(iv) The entire paragraph (2)(h); 

(v) The entire paragraph (2)(l); 

(vi) The entire paragraphs (3)(a) and 

(3)(b); 

(vii) The entire paragraph 3(f); 

(viii) The entire paragraph (3)(h); 

(ix) In (4)(d)(2)(c), the sentence, ‘‘If 

these limits are not met, no action 

shall be required, provided that the net 

improvement or hydropattern restoration provisions of subsection (6) below 

are met.’’; 

(x) The entire paragraph (5)(a); 

(xi) The entire paragraph (5)(b)(2) and 

(5)(b)(3); 

(xii) The entire paragraph (5)(d); 

(xiii) The entire paragraph (6), including subparagraphs (6)(a), (6)(a)(1), 

(6)(a)(1)(a), (6)(a)(1)(b), (6)(a)(2), 

(6)(a)(3), (6)(a)(4), (6)(a)(5), (6)(b), 

(6)(b)(1), (6)(b)(2), (6)(b)(3), and (6)(c). 

(b) Amended Everglades Forever Act. (1) 

The document entitled ‘‘Florida Statute, Title 28, Natural Resources; Conservation, Reclamation, and Use, Section 373.4592, Everglades improvement 

and management, effective July 1, 2008, 

also known as the ‘‘Everglades Forever 

Act,’’ as annotated by EPA’’ is incorporated by reference as described in 

paragraph (b)(2). The EPA is not incorporating the full text of this document, 

but correcting specified portions of the 

statute as directed by the court as indicated by the strike out markings. 

The EPA is only incorporating by reference these crossed-out portions in 

the Florida Statute, the ‘‘Everglades 

Forever Act.’’ The Director of the Federal Register approves this incorporation by reference in accordance with 5 

U.S.C. 552(a). Copies of the document 

may be inspected and obtained from 

the docket associated with this rulemaking (Docket Number EPA–HQ–OW– 

2011–0515) at http://www.regulations.gov 

electronically, at EPA’s Water Docket 

(Address: 1301 Constitution Avenue 

NW., EPA West, Room B102, Washington, DC 20460, telephone number: 

202–566–2426), at the National Archives 

and Records Administration (NARA), 

and finally, on the EPA Web site associated with this rulemaking at http:// 

water.epa.gov/lawsregs/rulesregs/ 

floridaevergladeslindex.cfm. For information on the availability of this material at NARA, call 202–741–6030, or go 

to the following Web site http:// 

www.archives.gov/federallregister/ 

codeloflfederallregulations/ 

ibrllocations.html. EPA adopts and 

identifies the portions of the document 

that have strikeout markings as portions of the statute that EPA disapproved on December 3, 2009, and that 

are not applicable water quality standards for the purposes of the Clean 

Water Act. Remaining portions of the 

statute that EPA had previously approved are applicable water quality 

standards for the purposes of the Clean 

Water Act but are not codified as federal regulations. 

(2) In the Everglades Forever Act, 

strike the following text: 

(i) The entire paragraph (2)(a); 

(ii) In paragraph (2)(g), the phrase, 

‘‘and further described in the LongTerm Plan.’’; 

(iii) The entire paragraph (2)(j); 

(iv) The entire paragraph (2)(l); 

(v) The entire paragraph (2)(p); 

(vi) The entire paragraphs (3)(b), 

(3)(c), (3)(d) and (3)(e); 

(vii) In sentence 9 of paragraph (4)(a), 

the phrase, ‘‘design, construction, and 

implementation of the initial phase of 

the Long-Term Plan, including operation and maintenance, and research 

for the projects and strategies in the 

initial phase of the Long-Term Plan, 

and including’’; 

(viii) In sentence 1 of subparagraph 

(4)(a)(4), the phrase, ‘‘however, the district may modify this schedule to incorporate and accelerate enhancements 

to STA 3/4 as directed in the LongTerm Plan;’’; 

(ix) The entire subparagraph (4)(a)(6); 

(x) In subparagraph (4)(e)(2), the entire sentences 7, 8 and 9; 

(xi) In subparagraph (4)(e)(3), the entire sentence 3; 


Lhorne on DSK5TPTVN1PROD with CFR
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Pt. 132 40 CFR Ch. I (7–1–15 Edition) 

(xii) In sentence 1 of paragraph (10), 

the phrase, ‘‘to implement the pre-2006 

projects and strategies of the LongTerm Plan’’, the phrase, ‘‘in all parts 

of the Everglades Protection Area’’, 

and the phrase ‘‘and moderating provisions’’; 

(xiii) The entire paragraph (10)(a). 

(3) EPA is not incorporating the text 

annotations added by hand to the Everglades Forever Act. These text inserts 

are included only for the convenience 

of the reader and to improve the readability of the document. 

[77 FR 46303, Aug. 3, 2012] 

PART 132—WATER QUALITY GUIDANCE FOR THE GREAT LAKES 

SYSTEM 

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. 

§ 132.1 Scope, purpose, and availability 

of documents. 

(a) This part constitutes the Water 

Quality Guidance for the Great Lakes 

System (Guidance) required by section 

118(c)(2) of the Clean Water Act (33 

U.S.C. 1251 et seq.) as amended by the 

Great Lakes Critical Programs Act of 

1990 (Pub. L. 101–596, 104 Stat. 3000 et 

seq.). The Guidance in this part identifies minimum water quality standards, 

antidegradation policies, and implementation procedures for the Great 

Lakes System to protect human 

health, aquatic life, and wildlife. 

(b) The U.S. Environmental Protection Agency, Great Lakes States, and 

Great Lakes Tribes will use the Guidance in this part to evaluate the water 

quality programs of the States and 

Tribes to assure that they are protective of water quality. State and Tribal 

programs do not need to be identical to 

the Guidance in this part, but must 

contain provisions that are consistent 

with (as protective as) the Guidance in 

this part. The scientific, policy and 

legal basis for EPA’s development of 

each section of the final Guidance in 

this part is set forth in the preamble, 

Supplementary Information Document, 

Technical Support Documents, and 

other supporting documents in the public docket. EPA will follow the guidance set out in these documents in reviewing the State and Tribal water 

quality programs in the Great Lakes 

for consistency with this part. 

(c) The Great Lakes States and 

Tribes must adopt provisions consistent with the Guidance in this part 

applicable to waters in the Great Lakes 

System or be subject to EPA promulgation of its terms pursuant to this part. 

(d) EPA understands that the science 

of risk assessment is rapidly improving. Therefore, to ensure that the scientific basis for the methodologies in 

appendices A through D are always 

current and peer reviewed, EPA will review the methodologies and revise 

them, as appropriate, every 3 years. 

(e) Certain documents referenced in 

the appendixes to this part with a designation of NTIS and/or ERIC are 

available for a fee upon request to the 

National Technical Information Center 

(NTIS), U.S. Department of Commerce, 

5285 Port Royal Road, Springfield, VA 

22161. Alternatively, copies may be obtained for a fee upon request to the 

Educational Resources Information 

Center/Clearinghouse for Science, 


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Environmental Protection Agency § 132.2 

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. 

§ 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 nonharmful effects such as tissue discoloration alone or the induction of enzymes involved in the metabolism of 

the substance. 

Bioaccumulation is the net accumulation of a substance by an organism as 

a result of uptake from all environmental sources. 

Bioaccumulation factor (BAF) is the 

ratio (in L/kg) of a substance’s concentration in tissue of an aquatic organism to its concentration in the ambient water, in situations where both the 

organism and its food are exposed and 

the ratio does not change substantially 

over time. 

Bioaccumulative chemical of concern 

(BCC) is any chemical that has the potential to cause adverse effects which, 

upon entering the surface waters, by 

itself or as its toxic transformation 

product, accumulates in aquatic organisms by a human health bioaccumulation factor greater than 1000, after considering metabolism and other physicochemical properties that might enhance or inhibit bioaccumulation, in 

accordance with the methodology in 

appendix B of this part. Chemicals with 

half-lives of less than eight weeks in 

the water column, sediment, and biota 

are not BCCs. The minimum BAF information needed to define an organic 

chemical as a BCC is either a fieldmeasured 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 fieldmeasured 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, 


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§ 132.2 40 CFR Ch. I (7–1–15 Edition) 

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 

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 


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Environmental Protection Agency § 132.2 

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 

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 methodspecified 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 lifecycle (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. 


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§ 132.2 40 CFR Ch. I (7–1–15 Edition) 

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 lifecycle toxicity tests with the species; 

for a species of fish for which no such 

result is available, the SMCV is the 

geometric mean of all acceptable early 

life-stage tests. 

Stream design flow is the stream flow 

that represents critical conditions, upstream from the source, for protection 

of aquatic life, human health, or wildlife. 

Threshold effect is an effect of a substance for which there is a theoretical 

or empirically established dose or concentration below which the effect does 

not occur. 

Tier I criteria are numeric values derived by use of the Tier I methodologies in appendixes A, C and D of this 

part, the methodology in appendix B of 

this part, and the procedures in appendix F of this part, that either have 

been adopted as numeric criteria into a 

water quality standard or are used to 

implement narrative water quality criteria. 

Tier II values are numeric values derived by use of the Tier II methodologies in appendixes A and C of this part, 

the methodology in appendix B of this 

part, and the procedures in appendix F 

of this part, that are used to implement narrative water quality criteria. 

Total maximum daily load (TMDL) is 

the sum of the individual wasteload allocations for point sources and load allocations for nonpoint sources and natural background, as more fully defined 

at 40 CFR 130.2(i). A TMDL sets and allocates the maximum amount of a pollutant that may be introduced into a 

water body and still assure attainment 

and maintenance of water quality 

standards. 

Tributaries of the Great Lakes System 

means all waters of the Great Lakes 

System that are not open waters of the 

Great Lakes, or connecting channels. 

Uncertainty factor (UF) is one of several numeric factors used in operationally deriving criteria from experimental data to account for the quality 

or quantity of the available data. 

Uptake is acquisition of a substance 

from the environment by an organism 

as a result of any active or passive 

process. 

Wasteload allocation (WLA) is the portion of a receiving water’s loading capacity that is allocated to one of its existing or future point sources of pollution, as more fully defined at 40 CFR 

130.2(h). In the absence of a TMDL approved by EPA pursuant to 40 CFR 

130.7 or an assessment and remediation 

plan developed and approved in accordance with procedure 3.A of appendix F 

of this part, a WLA is the allocation 

for an individual point source, that ensures that the level of water quality to 

be achieved by the point source is derived from and complies with all applicable water quality standards. 

Wet weather point source means any 

discernible, confined and discrete conveyance from which pollutants are, or 

may be, discharged as the result of a 

wet weather event. Discharges from 

wet weather point sources shall include 

only: discharges of storm water from a 

municipal separate storm sewer as defined at 40 CFR 122.26(b)(8); storm 

water discharge associated with industrial activity as defined at 40 CFR 

122.26(b)(14); discharges of storm water 

and sanitary wastewaters (domestic, 

commercial, and industrial) from a 

combined sewer overflow; or any other 


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Environmental Protection Agency § 132.4 

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. 

§ 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 §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. 

§ 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 §132.2; 

(2) The Methodologies for Development of Aquatic Life Criteria and Values in appendix A of this part; 

(3) The Methodology for Development 

of Bioaccumulation Factors in appendix B of this part; 

(4) The Methodologies for Development of Human Health Criteria and 

Values in appendix C of this part; 

(5) The Methodology for Development 

of Wildlife Criteria in appendix D of 

this part; 

(6) The Antidegradation Policy in appendix E of this part; and 

(7) The Implementation Procedures 

in appendix F of this part. 

(b) Except as provided in paragraphs 

(g), (h), and (i) of this section, the 

Great Lakes States and Tribes shall 

use methodologies consistent with the 

methodologies designated as Tier I 

methodologies in appendixes A, C, and 

D of this part, the methodology in appendix B of this part, and the procedures in appendix F of this part when 

adopting or revising numeric water 

quality criteria for the purposes of section 303(c) of the Clean Water Act for 

the Great Lakes System. 

(c) Except as provided in paragraphs 

(g), (h), and (i) of this section, the 

Great Lakes States and Tribes shall 

use methodologies and procedures consistent with the methodologies designated as Tier I methodologies in appendixes A, C, and D of this part, the 

Tier II methodologies in appendixes A 

and C of this part, the methodology in 

appendix B of this part, and the procedures in appendix F of this part to develop numeric criteria and values when 

implementing narrative water quality 

criteria adopted for purposes of section 

303(c) of the Clean Water Act. 

(d) The water quality criteria and 

values adopted or developed pursuant 

to paragraphs (a) through (c) of this 

section shall apply as follows: 

(1) The acute water quality criteria 

and values for the protection of aquatic 

life, or site-specific modifications 

thereof, shall apply to all waters of the 

Great Lakes System. 

(2) The chronic water quality criteria 

and values for the protection of aquatic 

life, or site-specific modifications 

thereof, shall apply to all waters of the 

Great Lakes System. 

(3) The water quality criteria and 

values for protection of human health, 

or site-specific modifications thereof, 

shall apply as follows: 

(i) Criteria and values derived as 

HCV-Drinking and HNV-Drinking shall 

apply to the Open Waters of the Great 

Lakes, all connecting channels of the 

Great Lakes, and all other waters of 

the Great Lakes System that have 

been designated as public water supplies by any State or Tribe in accordance with 40 CFR 131.10. 


Lhorne on DSK5TPTVN1PROD with CFR
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§ 132.5 40 CFR Ch. I (7–1–15 Edition) 

(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. 

(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 

§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. 

§ 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) 


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Environmental Protection Agency § 132.5 

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 

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 §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 §132.4. The Great Lakes 

State or Tribe may adopt provisions 

that are more protective than those 

contained in this part. Adoption of a 


Lhorne on DSK5TPTVN1PROD with CFR
542 

§ 132.6 40 CFR Ch. I (7–1–15 Edition) 

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] 

§ 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, 

§132.4(d)(2) shall apply to waters designated as ‘‘Class D’’ under section 

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 

§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 

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 designated by 

Wisconsin as Warm Water Sportfish 

and Warm Water Forage Fish aquatic 

life use. 

(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 designated by Wisconsin as Limited Forage Fish aquatic life use. 

(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 


Lhorne on DSK5TPTVN1PROD with CFR
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Environmental Protection Agency Pt. 132, Tables 

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; 76 FR 57652, Sept. 16, 2011] 

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) 

Chemical CMC 

(μg/L) 

Conversion 

factor 

(CF) 

Arsenic (III) .......................................... a b 339 .8 1.000 

Chromium (VI) ..................................... a b 16 .02 0.982 

Cyanide ............................................... c 22 n/a 

Dieldrin ................................................ d 0 .24 n/a 

Endrin .................................................. d 0 .086 n/a 

Lindane ................................................ d 0 .95 n/a 

Mercury (II) .......................................... a b 1 .694 0.85

Parathion ............................................. d 0 .065 n/a 

a CMC=CMCtr. b CMCd = (CMCtr) CF. The CMCd shall be rounded to two significant digits. c CMC should be considered free cyanide as CN. 

d CMC=CMCt

. 

Notes: 

The term ‘‘n/a’’ means not applicable. 

CMC is Criterion Maximum Concentration. 

CMCtr is the CMC expressed as total recoverable. 

CMCd is the CMC expressed as a dissolved concentration. 

CMCt is the CMC expressed as a total concentration. 

(b) 

Chemical mA bA

Conversion factor (CF) 

Cadmium a b ..................... 1 .128 ¥3 .6867 0.85

Chromium (III) a b ............. 0 .819 +3 .7256 0.316 

Copper a b ........................ 0 .9422 ¥1 .700 0.960 

Nickel a b .......................... 0 .846 +2 .255 0.998 

Pentachlorophenol c ......... 1 .005 ¥4 .869 n/a 

Zinc a b ............................. 0 .8473 +0 .884 0.978 

a CMCtr = exp {mA [ln (hardness)]+bA}. b CMCd = (CMCtr) CF. The CMCd shall be rounded to two 

significant digits. c CMCt = exp mA {[pH]+bA}. The CMCt shall be rounded to two significant digits. 

Notes: 

The term ‘‘exp’’ represents the base e exponential function. 

The term ‘‘n/a’’ means not applicable. 

CMC is Criterion Maximum Concentration. 

CMCtr is the CMC expressed as total recoverable. 

CMCd is the CMC expressed as a dissolved concentration. 

CMCt is the CMC expressed as a total concentration. 

[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) 

Chemical CCC 

(μg/L) 

Conversion 

factor 

(CF) 

Arsenic (III) ........................................ a b 147 .9 1.000 

Chromium (VI) ................................... a b 10 .98 0.962 

Cyanide ............................................. c 5 .2 n/a 

Dieldrin .............................................. d 0 .056 n/a 

Endrin ................................................ d 0 .036 n/a 

Mercury (II) ........................................ a b 0 .9081 0.85

Parathion ........................................... d 0 .013 n/a 

Selenium ............................................ a b 5 0.922 

a CCC=CCCtr. b CCCd = (CCCtr) CF. The CCCd shall be rounded to two 

significant digits. c CCC should be considered free cyanide as CN. 

d CCC=CCCt

. 

Notes: 

The term ‘‘n/a’’ means not applicable. 

CCC is Criterion Continuous Concentration. 

CCCtr is the CCC expressed as total recoverable. 

CCCd is the CCC expressed as a dissolved concentration. 

CCCt is the CCC expressed as a total concentration. 

(b) 

Chemical mc bc

Conversion 

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 CCCtr = exp {mc[ln (hardness)]+bc}. b CCCd = (CCCtr) (CF). The CCCd shall be rounded to two 

significant digits. c CMCt = exp {mA[pH]+bA}. The CMCt shall be rounded to 

two significant digits. 

Notes: 

The term ‘‘exp’’ represents the base e exponential function. 

The term ‘‘n/a’’ means not applicable. 

CCC is Criterion Continuous Concentration. 

CCCtr is the CCC expressed as total recoverable. 

CCCd is the CCC expressed as a dissolved concentration. 

CCCt is the CCC expressed as a total concentration. 

TABLE 3—WATER QUALITY CRITERIA FOR

PROTECTION OF HUMAN HEALTH

Chemical 

HNV (μg/L) HCV (μg/L) 

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 


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Pt. 132, Tables 40 CFR Ch. I (7–1–15 Edition) 

TABLE 3—WATER QUALITY CRITERIA FOR

PROTECTION OF HUMAN HEALTH—Continued 

Chemical 

HNV (μg/L) HCV (μg/L) 

Drinking 

Nondrinking 

Drinking 

Nondrinking 

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 (μg/ 

L) 

DDT and metabolites ....................................... 1.1E–5 

Mercury (including methylmercury) .................. 1.3E–3 

PCBs (class) .................................................... 1.2E–4 

2,3,7,8-TCDD ................................................... 3.1E–9 

[60 FR 15387, Mar. 23, 1995, as amended at 62 

FR 11731, Mar. 12, 1997] 

TABLE 5—POLLUTANTS SUBJECT TO FEDERAL, 

STATE, AND TRIBAL REQUIREMENTS

Alkalinity 

Ammonia 

Bacteria 

Biochemical oxygen demand (BOD) 

Chlorine 

Color 

Dissolved oxygen 

Dissolved solids 

pH 

Phosphorus 

Salinity 

Temperature 

Total and suspended solids 

Turbidity 

TABLE 6—POLLUTANTS OF INITIAL FOCUS IN

THE GREAT LAKES WATER QUALITY INITIATIVE

A. Pollutants that are bioaccumulative 

chemicals of concern (BCCs): 

Chlordane 

4,4′-DDD; p,p′-DDD; 4,4′-TDE; p,p′-TDE 

4,4′-DDE; p,p′-DDE 

4,4′-DDT; p,p′-DDT 

Dieldrin 

Hexachlorobenzene 

Hexachlorobutadiene; hexachloro-1, 3-butadiene 

Hexachlorocyclohexanes; BHCs 

alpha-Hexachlorocyclohexane; alpha-BHC 

beta-Hexachlorocyclohexane; beta-BHC 

delta-Hexachlorocyclohexane; delta-BHC 

Lindane; gamma-hexachlorocyclohexane; 

gamma-BHC 

Mercury 

Mirex 

Octachlorostyrene 

PCBs; polychlorinated biphenyls 

Pentachlorobenzene 

Photomirex 

2,3,7,8-TCDD; dioxin 

1,2,3,4-Tetrachlorobenzene 

1,2,4,5-Tetrachlorobenzene Toxaphene 

B. Pollutants that are not bioaccumulative 

chemicals of concern: 

Acenaphthene 

Acenaphthylene 

Acrolein; 2-propenal 

Acrylonitrile 

Aldrin 

Aluminum 

Anthracene 

Antimony 

Arsenic 

Asbestos 

1,2-Benzanthracene; benz[a]anthracene 

Benzene 

Benzidine 

Benzo[a]pyrene; 3,4-benzopyrene 

3,4-Benzofluoranthene; benzo[b]fluoranthene 

11,12-Benzofluoranthene; 

benzo[k]fluoranthene 

1,12-Benzoperylene; benzo[ghi]perylene 

Beryllium 

Bis(2-chloroethoxy) methane 

Bis(2-chloroethyl) ether 

Bis(2-chloroisopropyl) ether 

Bromoform; tribomomethane 

4-Bromophenyl phenyl ether 

Butyl benzyl phthalate 

Cadmium 

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 


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Environmental Protection Agency Pt. 132, App. A 

Dichlorobromomethane; 

bromodichloromethane 

1,1-Dichloroethane 

1,2-Dichloroethane 

1,1-Dichloroethylene; vinylidene chloride 

1,2-trans-Dichloroethylene 

2,4-Dichlorophenol 

1,2-Dichloropropane 

1,3-Dichloropropene; 1,3-dichloropropylene 

Diethyl phthalate 

2,4-Dimethylphenol; 2,4-xylenol 

Dimethyl phthalate 

4,6-Dinitro-o-cresol; 2-methyl-4,6- 

dinitrophenol 

2,4-Dinitrophenol 

2,4-Dinitrotoluene 

2,6-Dinitrotoluene 

Dioctyl phthalate; di-n-octyl phthalate 

1,2-Diphenylhydrazine 

Endosulfan; thiodan 

alpha-Endosulfan 

beta-Endosulfan 

Endosulfan sulfate 

Endrin 

Endrin aldehyde 

Ethylbenzene 

Fluoranthene 

Fluorene; 9H-fluorene 

Fluoride 

Guthion 

Heptachlor 

Heptachlor epoxide 

Hexachlorocyclopentadiene 

Hexachloroethane 

Indeno[1,2,3-cd]pyrene; 2,3-o-phenylene pyrene 

Isophorone 

Lead 

Malathion 

Methoxychlor 

Methyl bromide; bromomethane 

Methyl chloride; chloromethane 

Methylene chloride; dichloromethane 

Napthalene 

Nickel 

Nitrobenzene 

2-Nitrophenol 

4-Nitrophenol 

N-Nitrosodimethylamine 

N-Nitrosodiphenylamine 

N-Nitrosodipropylamine; N-nitrosodi-n-propylamine 

Parathion 

Pentachlorophenol 

Phenanthrene 

Phenol 

Iron 

Pyrene 

Selenium 

Silver 

1,1,2,2-Tetrachloroethane 

Tetrachloroethylene 

Thallium 

Toluene; methylbenzene 

1,2,4-Trichlorobenzene 

1,1,1-Trichloroethane 

1,1,2-Trichloroethane 

Trichloroethylene; trichloroethene 

2,4,6-Trichlorophenol 

Vinyl chloride; chloroethylene; chloroethene 

Zinc 

APPENDIX A TO PART 132—GREAT LAKES

WATER QUALITY INITIATIVE METHODOLOGIES FOR DEVELOPMENT OF

AQUATIC LIFE CRITERIA AND VALUES

METHODOLOGY FOR DERIVING AQUATIC LIFE

CRITERIA: TIER I 

Great Lakes States and Tribes shall adopt 

provisions consistent with (as protective as) 

this appendix. 

I. Definitions 

A. Material of Concern. When defining the 

material of concern the following should be 

considered: 

1. Each separate chemical that does not 

ionize substantially in most natural bodies 

of water should usually be considered a separate material, except possibly for structurally similar organic compounds that only 

exist in large quantities as commercial mixtures of the various compounds and apparently have similar biological, chemical, 

physical, and toxicological properties. 

2. For chemicals that ionize substantially 

in most natural bodies of water (e.g., some 

phenols and organic acids, some salts of phenols and organic acids, and most inorganic 

salts and coordination complexes of metals 

and metalloid), all forms that would be in 

chemical equilibrium should usually be considered one material. Each different oxidation state of a metal and each different nonionizable 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 


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Pt. 132, App. A 40 CFR Ch. I (7–1–15 Edition) 

water, that it be compatible with the available toxicity and bioaccumulation data 

without making extrapolations that are too 

hypothetical, and that it rarely result in 

underprotection or overprotection of aquatic 

organisms and their uses. Toxicity is the 

property of a material, or combination of 

materials, to adversely affect organisms. 

b. Because an ideal analytical measurement will rarely be available, an appropriate 

compromise measurement will usually have 

to be used. This compromise measurement 

must fit with the general approach that if an 

ambient concentration is lower than the criterion, unacceptable effects will probably 

not occur, i.e., the compromise measure 

must not err on the side of underprotection 

when measurements are made on a surface 

water. What is an appropriate measurement 

in one situation might not be appropriate for 

another. For example, because the chemical 

and physical properties of an effluent are 

usually quite different from those of the receiving water, an analytical method that is 

appropriate for analyzing an effluent might 

not be appropriate for expressing a criterion, 

and vice versa. A criterion should be based 

on an appropriate analytical measurement, 

but the criterion is not rendered useless if an 

ideal measurement either is not available or 

is not feasible. 

NOTE: The analytical chemistry of the material might have to be taken into account 

when defining the material or when judging 

the acceptability of some toxicity tests, but 

a criterion must not be based on the sensitivity of an analytical method. When aquatic 

organisms are more sensitive than routine 

analytical methods, the proper solution is to 

develop better analytical methods. 

4. It is now the policy of EPA that the use 

of dissolved metal to set and measure compliance with water quality standards is the 

recommended approach, because dissolved 

metal more closely approximates the bioavailable fraction of metal in the water column that does total recoverable metal. One 

reason is that a primary mechanism for 

water column toxicity is adsorption at the 

gill surface which requires metals to be in 

the dissolved form. Reasons for the consideration of total recoverable metals criteria include risk management considerations not 

covered by evaluation of water column toxicity. A risk manager may consider sediments and food chain effects and may decide 

to take a conservative approach for metals, 

considering that metals are very persistent 

chemicals. This approach could include the 

use of total recoverable metal in water quality standards. A range of different risk management decisions can be justified. EPA recommends that State water quality standards 

be based on dissolved metal. EPA will also 

approve a State risk management decision 

to adopt standards based on total recoverable metal, if those standards are otherwise 

approvable under this program. 

B. Acute Toxicity. Concurrent and delayed 

adverse effect(s) that results from an acute 

exposure and occurs within any short observation period which begins when the exposure begins, may extend beyond the exposure 

period, and usually does not constitute a 

substantial portion of the life span of the organism. (Concurrent toxicity is an adverse 

effect to an organism that results from, and 

occurs during, its exposure to one or more 

test materials.) Exposure constitutes contact with a chemical or physical agent. 

Acute exposure, however, is exposure of an 

organism for any short period which usually 

does not constitute a substantial portion of 

its life span. 

C. Chronic Toxicity. Concurrent and delayed 

adverse effect(s) that occurs only as a result 

of a chronic exposure. Chronic exposure is 

exposure of an organism for any long period 

or for a substantial portion of its life span. 

II. Collection of Data 

A. Collect all data available on the material concerning toxicity to aquatic animals 

and plants. 

B. All data that are used should be available in typed, dated, and signed hard copy 

(e.g., publication, manuscript, letter, memorandum, etc.) with enough supporting information to indicate that acceptable test procedures were used and that the results are 

reliable. In some cases, it might be appropriate to obtain written information from 

the investigator, if possible. Information 

that is not available for distribution shall 

not be used. 

C. Questionable data, whether published or 

unpublished, must not be used. For example, 

data must be rejected if they are from tests 

that did not contain a control treatment, 

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 flowthrough test is a test with aquatic organisms 

in which test solutions flow into constantvolume test chambers either intermittently 

(e.g., every few minutes) or continuously, 

with the excess flowing out. 

F. Data must be rejected if obtained using: 


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Environmental Protection Agency Pt. 132, App. A 

1. Brine shrimp, because they usually only 

occur naturally in water with salinity greater than 35 g/kg. 

2. Species that do not have reproducing 

wild populations in North America. 

3. Organisms that were previously exposed 

to substantial concentrations of the test material or other contaminants. 

4. Saltwater species except for use in deriving acute-chronic ratios. An ACR is a standard measure of the acute toxicity of a material divided by an appropriate measure of the 

chronic toxicity of the same material under 

comparable conditions. 

G. Questionable data, data on formulated 

mixtures and emulsifiable concentrates, and 

data obtained with species non-resident to 

North America or previously exposed organisms may be used to provide auxiliary information but must not be used in the derivation of criteria. 

III. Required Data 

A. Certain data should be available to help 

ensure that each of the major kinds of possible adverse effects receives adequate consideration. An adverse effect is a change in 

an organism that is harmful to the organism. Exposure means contact with a chemical or physical agent. Results of acute and 

chronic toxicity tests with representative 

species of aquatic animals are necessary so 

that data available for tested species can be 

considered a useful indication of the sensitivities of appropriate untested species. 

Fewer data concerning toxicity to aquatic 

plants are usually available because procedures for conducting tests with plants and 

interpreting the results of such tests are not 

as well developed. 

B. To derive a Great Lakes Tier I criterion 

for aquatic organisms and their uses, the following must be available: 

1. Results of acceptable acute (or chronic) 

tests (see section IV or VI of this appendix) 

with at least one species of freshwater animal in at least eight different families such 

that all of the following are included: 

a. The family Salmonidae in the class 

Osteichthyes; 

b. One other family (preferably a commercially or recreationally important, 

warmwater species) in the class Osteichthyes 

(e.g., bluegill, channel catfish); 

c. A third family in the phylum Chordata 

(e.g., fish, amphibian); 

d. A planktonic crustacean (e.g., a 

cladoceran, copepod); 

e. A benthic crustacean (e.g., ostracod, isopod, amphipod, crayfish); 

f. An insect (e.g., mayfly, dragonfly, 

damselfly, stonefly, caddisfly, mosquito, 

midge); 

g. A family in a phylum other than Arthropoda or Chordata (e.g., Rotifera, 

Annelida, Mollusca); 

h. A family in any order of insect or any 

phylum not already represented. 

2. Acute-chronic ratios (see section VI of 

this appendix) with at least one species of 

aquatic animal in at least three different 

families provided that of the three species: 

a. At least one is a fish; 

b. At least one is an invertebrate; and 

c. At least one species is an acutely sensitive freshwater species (the other two may 

be saltwater species). 

3. Results of at least one acceptable test 

with a freshwater algae or vascular plant is 

desirable but not required for criterion derivation (see section VIII of this appendix). If 

plants are among the aquatic organisms 

most sensitive to the material, results of a 

test with a plant in another phylum (division) should also be available. 

C. If all required data are available, a numerical criterion can usually be derived except in special cases. For example, derivation of a chronic criterion might not be possible if the available ACRs vary by more 

than a factor of ten with no apparent pattern. Also, if a criterion is to be related to a 

water quality characteristic (see sections V 

and VII of this appendix), more data will be 

required. 

D. Confidence in a criterion usually increases as the amount of available pertinent 

information increases. Thus, additional data 

are usually desirable. 

IV. Final Acute Value 

A. Appropriate measures of the acute 

(short-term) toxicity of the material to a variety of species of aquatic animals are used 

to calculate the Final Acute Value (FAV). 

The calculated Final Acute Value is a calculated estimate of the concentration of a 

test material such that 95 percent of the genera (with which acceptable acute toxicity 

tests have been conducted on the material) 

have higher Genus Mean Acute Values 

(GMAVs). An acute test is a comparative 

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 


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Pt. 132, App. A 40 CFR Ch. I (7–1–15 Edition) 

should not be used, unless data indicate that 

the food did not affect the toxicity of the 

test material. (NOTE: If the minimum acutechronic ratio data requirements (as described in section III.B.2 of this appendix) 

are not met with freshwater data alone, saltwater data may be used.) 

D. Results of acute tests conducted in unusual dilution water, e.g., dilution water in 

which total organic carbon or particulate 

matter exceeded five mg/L, should not be 

used, unless a relationship is developed between acute toxicity and organic carbon or 

particulate matter, or unless data show that 

organic carbon or particulate matter, etc., 

do not affect toxicity. 

E. Acute values must be based upon 

endpoints which reflect the total severe adverse impact of the test material on the organisms used in the test. Therefore, only the 

following kinds of data on acute toxicity to 

aquatic animals shall be used: 

1. Tests with daphnids and other 

cladocerans must be started with organisms 

less than 24 hours old and tests with midges 

must be started with second or third instar 

larvae. It is preferred that the results should 

be the 48-hour EC50 based on the total percentage of organisms killed and immobilized. 

If such an EC50 is not available for a test, 

the 48-hour LC50 should be used in place of 

the desired 48-hour EC50. An EC50 or LC50 of 

longer than 48 hours can be used as long as 

the animals were not fed and the control animals were acceptable at the end of the test. 

An EC50 is a statistically or graphically estimated concentration that is expected to 

cause one or more specified effects in 50% of 

a group of organisms under specified conditions. An LC50 is a statistically or graphically estimated concentration that is expected to be lethal to 50% of a group of organisms under specified conditions. 

2. It is preferred that the results of a test 

with embryos and larvae of barnacles, bivalve molluscs (clams, mussels, oysters and 

scallops), sea urchins, lobsters, crabs, shrimp 

and abalones be the 96-hour EC50 based on 

the percentage of organisms with incompletely developed shells plus the percentage 

of organisms killed. If such an EC50 is not 

available from a test, of the values that are 

available from the test, the lowest of the following should be used in place of the desired 

96-hour EC50: 48- to 96-hour EC50s based on 

percentage of organisms with incompletely 

developed shells plus percentage of organisms killed, 48- to 96-hour EC50s based upon 

percentage of organisms with incompletely 

developed shells, and 48-hour to 96-hour 

LC50s. (NOTE: If the minimum acute-chronic 

ratio data requirements (as described in section III.B.2 of this appendix) are not met 

with freshwater data alone, saltwater data 

may be used.) 

3. It is preferred that the result of tests 

with all other aquatic animal species and 

older life stages of barnacles, bivalve 

molluscs (clams, mussels, oysters and scallops), sea urchins, lobsters, crabs, shrimp 

and abalones be the 96-hour EC50 based on 

percentage of organisms exhibiting loss of 

equilibrium plus percentage of organisms 

immobilized plus percentage of organisms 

killed. If such an EC50 is not available from 

a test, of the values that are available from 

a test the lower of the following should be 

used in place of the desired 96-hour EC50: the 

96-hour EC50 based on percentage of organisms exhibiting loss of equilibrium plus percentage of organisms immobilized and the 

96-hour LC50. 

4. Tests whose results take into account 

the number of young produced, such as most 

tests with protozoans, are not considered 

acute tests, even if the duration was 96 hours 

or less. 

5. If the tests were conducted properly, 

acute values reported as ‘‘greater than’’ values and those which are above the solubility 

of the test material should be used, because 

rejection of such acute values would bias the 

Final Acute Value by eliminating acute values for resistant species. 

F. If the acute toxicity of the material to 

aquatic animals has been shown to be related 

to a water quality characteristic such as 

hardness or particulate matter for freshwater animals, refer to section V of this appendix. 

G. The agreement of the data within and 

between species must be considered. Acute 

values that appear to be questionable in 

comparison with other acute and chronic 

data for the same species and for other species in the same genus must not be used. For 

example, if the acute values available for a 

species or genus differ by more than a factor 

of 10, rejection of some or all of the values 

would be appropriate, absent countervailing 

circumstances. 

H. If the available data indicate that one 

or more life stages are at least a factor of 

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 


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Environmental Protection Agency Pt. 132, App. A 

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 

S

GMAV

GMAV

P

P

L

GMAV S P

AS L

FAV eA

2

2

2

2

4

4

4

0 05

=

( ) ( ) − ( ) ( )

( ) − ( ) ( )

= ( ) − ( ) ( )

= ( ) +

=

∑ ∑

∑ ∑

∑ ∑

ln

ln

ln

.

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 


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Pt. 132, App. A 40 CFR Ch. I (7–1–15 Edition) 

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 loglog 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 

water quality characteristic, return to section IV.G of this appendix, using the results 

of tests conducted under conditions and in 

waters similar to those commonly used for 

toxicity tests with the species. 

D. For each species, calculate the geometric mean of the available acute values 

and then divide each of the acute values for 

the species by the geometric mean for the 

species. This normalizes the acute values so 

that the geometric mean of the normalized 

values for each species individually and for 

any combination of species is 1.0. 

E. Similarly normalize the values of the 

water quality characteristic for each species 

individually using the same procedure as 

above. 

F. Individually for each species perform a 

least squares regression of the normalized 

acute values of the water quality characteristic. The resulting slopes and 95 percent confidence limits will be identical to 

those obtained in section V.B. of this appendix. If, however, the data are actually plotted, the line of best fit for each individual 

species will go through the point 1,1 in the 

center of the graph. 

G. Treat all of the normalized data as if 

they were all for the same species and perform a least squares regression of all of the 

normalized acute values on the corresponding normalized values of the water 

quality characteristic to obtain the pooled 

acute slope, V, and its 95 percent confidence 

limits. If all of the normalized data are actually plotted, the line of best fit will go 

through the point 1,1 in the center of the 

graph. 

H. For each species calculate the geometric mean, W, of the acute toxicity values 

and the geometric mean, X, of the values of 

the water quality characteristic. (These were 

calculated in sections V.D and V.E of this 

appendix). 

I. For each species, calculate the logarithm, Y, of the SMAV at a selected value, Z, 

of the water quality characteristic using the 

equation: 

Y=ln W¥V(ln X¥ln Z) 

J. For each species calculate the SMAV at 

X using the equation: 

SMAV=eY

NOTE: Alternatively, the SMAVs at Z can 

be obtained by skipping step H above, using 

the equations in steps I and J to adjust each 

acute value individually to Z, and then calculating the geometric mean of the adjusted 

values for each species individually. This alternative procedure allows an examination 


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Environmental Protection Agency Pt. 132, App. A 

of the range of the adjusted acute values for 

each species. 

K. Obtain the FAV at Z by using the procedure described in sections IV.J through IV.O 

of this appendix. 

L. If, for a commercially or recreationally 

important species of the Great Lakes System 

the geometric mean of the acute values at Z 

from flow-through tests in which the concentrations of the test material were measured is lower than the FAV at Z, then the 

geometric mean must be used as the FAV instead of the FAV. 

M. The Final Acute Equation is written as: 

FAV = e(V[ln(waterqualitycharacteristic)] = A ¥ V[lnZ])

, 

where: 

V=pooled acute slope, and A=ln(FAV at Z). 

Because V, A, and Z are known, the FAV 

can be calculated for any selected value of 

the water quality characteristic. 

VI. Final Chronic Value 

A. Depending on the data that are available concerning chronic toxicity to aquatic 

animals, the Final Chronic Value (FCV) can 

be calculated in the same manner as the 

FAV or by dividing the FAV by the Final 

Acute-Chronic Ratio (FACR). In some cases, 

it might not be possible to calculate a FCV. 

The FCV is (a) a calculated estimate of the 

concentration of a test material such that 95 

percent of the genera (with which acceptable 

chronic toxicity tests have been conducted 

on the material) have higher GMCVs, or (b) 

the quotient of an FAV divided by an appropriate ACR, or (c) the SMCV of an important 

and/or critical species, if the SMCV is lower 

than the calculated estimate or the quotient, 

whichever is applicable. 

NOTE: As the name implies, the ACR is a 

way of relating acute and chronic toxicities. 

B. Chronic values shall be based on results 

of flow-through (except renewal is acceptable 

for daphnids) chronic tests in which the concentrations of test material in the test solutions were properly measured at appropriate 

times during the test. A chronic test is a 

comparative study in which organisms, that 

are subjected to different treatments, are observed for a long period or a substantial portion of their life span. 

C. Results of chronic tests in which survival, growth, or reproduction in the control 

treatment was unacceptably low shall not be 

used. The limits of acceptability will depend 

on the species. 

D. Results of chronic tests conducted in 

unusual dilution water, e.g., dilution water 

in which total organic carbon or particulate 

matter exceeded five mg/L, should not be 

used, unless a relationship is developed between chronic toxicity and organic carbon or 

particulate matter, or unless data show that 

organic carbon, particulate matter, etc., do 

not affect toxicity. 

E. Chronic values must be based on 

endpoints and lengths of exposure appropriate to the species. Therefore, only results 

of the following kinds of chronic toxicity 

tests shall be used: 

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 lifecycle 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 lifecycle 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 


Lhorne on DSK5TPTVN1PROD with CFR
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Pt. 132, App. A 40 CFR Ch. I (7–1–15 Edition) 

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 lifecycle or partial life-cycle test are available, 

results of an early life-stage test with the 

same species should not be used. Also, results of early life-stage tests in which the incidence of mortalities or abnormalities increased substantially near the end of the test 

shall not be used because the results of such 

tests are possibly not good predictions of 

comparable life-cycle or partial life-cycle 

tests. 

F. A chronic value may be obtained by calculating the geometric mean of the lower 

and upper chronic limits from a chronic test 

or by analyzing chronic data using regression analysis. 

1. A lower chronic limit is the highest tested concentration: 

a. In an acceptable chronic test; 

b. Which did not cause an unacceptable 

amount of adverse effect on any of the specified biological measurements; and 

c. Below which no tested concentration 

caused an unacceptable effect. 

2. An upper chronic limit is the lowest 

tested concentration: 

a. In an acceptable chronic test; 

b. Which did cause an unacceptable 

amount of adverse effect on one or more of 

the specified biological measurements; and, 

c. Above which all tested concentrations 

also caused such an effect. 

NOTE: Because various authors have used a 

variety of terms and definitions to interpret 

and report results of chronic tests, reported 

results should be reviewed carefully. The 

amount of effect that is considered unacceptable is often based on a statistical hypothesis test, but might also be defined in terms 

of a specified percent reduction from the 

controls. A small percent reduction (e.g., 

three percent) might be considered acceptable even if it is statistically significantly 

different from the control, whereas a large 

percent reduction (e.g., 30 percent) might be 

considered unacceptable even if it is not statistically significant. 

G. If the chronic toxicity of the material 

to aquatic animals has been shown to be related to a water quality characteristic such 

as hardness or particulate matter for freshwater animals, refer to section VII of this 

appendix. 

H. If chronic values are available for species in eight families as described in section 

III.B.1 of this appendix, a SMCV shall be calculated for each species for which at least 

one chronic value is available by calculating 

the geometric mean of the results of all acceptable life-cycle and partial life-cycle toxicity tests with the species; for a species of 

fish for which no such result is available, the 

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 


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Environmental Protection Agency Pt. 132, App. A 

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 

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 loglog 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 


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Pt. 132, App. A 40 CFR Ch. I (7–1–15 Edition) 

chronic toxicity values on the corresponding 

normalized values of the water quality characteristic. The resulting slopes and the 95 

percent confidence limits will be identical to 

those obtained in section VII.B of this appendix. Now, however, if the data are actually 

plotted, the line of best fit for each individual species will go through the point 1,1 

in the center of the graph. 

H. Treat all of the normalized data as if 

they were all the same species and perform a 

least squares regression of all of the normalized chronic values on the corresponding normalized values of the water quality characteristic to obtain the pooled chronic slope, 

L, and its 95 percent confidence limits. 

If all normalized data are actually plotted, 

the line of best fit will go through the point 

1,1 in the center of the graph. 

I. For each species, calculate the geometric mean, M, of the toxicity values and 

the geometric mean, P, of the values of the 

water quality characteristic. (These are calculated in sections VII.E and F of this appendix.) 

J. For each species, calculate the logarithm, Q, of the SMCV at a selected value, Z, 

of the water quality characteristic using the 

equation: 

Q=ln M—L(ln P¥ln Z) 

NOTE: Although it is not necessary, it is 

recommended that the same value of the 

water quality characteristic be used here as 

was used in section V of this appendix. 

K. For each species, calculate a SMCV at Z 

using the equation: 

SMCV=eQ

NOTE: Alternatively, the SMCV at Z can be 

obtained by skipping section VII.J of this appendix, using the equations in sections VII.J 

and K of this appendix to adjust each chronic 

value individually to Z, and then calculating 

the geometric means of the adjusted values 

for each species individually. This alternative procedure allows an examination of 

the range of the adjusted chronic values for 

each species. 

L. Obtain the FCV at Z by using the procedure described in sections IV.J through O of 

this appendix. 

M. If the SMCV at Z of a commercially or 

recreationally important species of the 

Great Lakes System is lower than the calculated FCV at Z, then that SMCV shall be 

used as the FCV at Z instead of the calculated FCV. 

N. The Final Chronic Equation is written 

as: 

FCV=e(L&[ln(waterqualitycharacteristic)]=lnS¥L[lnZ])

Where: 

L=pooled chronic slope and S = FCV at Z. 

Because L, S, and Z are known, the FCV 

can be calculated for any selected value of 

the water quality characteristic. 

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 μg/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. 


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Environmental Protection Agency Pt. 132, App. A 

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) μg/L more than once 

every three years on the average and if the 

one-hour average concentration does not exceed (3) μg/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 oncein-three-year allowable excursion frequency 

is inappropriate for the pollutant or for the 

sites to which a criterion is applied, then the 

State may specify alternative averaging periods or frequencies. The choice of an alternative averaging period or frequency shall be 

justified by a scientifically defensible analysis demonstrating that the alternative values will protect the aquatic life uses of the 

water. Appropriate laboratory data and/or 

well-designed field biological surveys shall 

be submitted to EPA as justification for differing averaging periods and/or frequencies 

of exceedance. 

XI. Final Review 

A. The derivation of the criterion should 

be carefully reviewed by rechecking each 

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 


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Pt. 132, App. A 40 CFR Ch. I (7–1–15 Edition) 

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: 

A. SCV =

FAV

SACR

use FAV from Tier I

 SCV =

SAV

FACR

 SCV =

SAV

SACR

( )

B

C

.

.

If appropriate, the SCV will be made a 

function of a water quality characteristic in 

a manner similar to that described in Tier I. 

XV. Commercially or Recreationally Important 

Species 

If for a commercially or recreationally important species of the Great Lakes System 

the geometric mean of the acute values or 

chronic values from flow-through tests in 

which the concentrations of the test materials were measured is lower than the calculated SAV or SCV, then that geometric 

mean must be used as the SAV or SCV instead of the calculated SAV or SCV. 

XVI. Tier II Value 

A. A Tier II value shall consist of two concentrations: the Secondary Maximum Concentration (SMC) and the Secondary Continuous Concentration (SCC). 

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) μg/L 

more than once every three years on the average and if the one-hour average concentration does not exceed (3) μg/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

Number of minimum data requirements satisfied Adjustment 

factor 

1 ........................................................................... 21.9 

2 ........................................................................... 13.0 

3 ........................................................................... 8.0 

4 ........................................................................... 7.0 

5 ........................................................................... 6.1 

6 ........................................................................... 5.2 

7 ........................................................................... 4.3 


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Environmental Protection Agency Pt. 132, App. B 

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 chemicalspecific 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, 

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 


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Pt. 132, App. B 40 CFR Ch. I (7–1–15 Edition) 

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. 

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 laboratorymeasured 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. Bioaccumulation 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 


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Environmental Protection Agency Pt. 132, App. B 

weight unless a conversion factor is measured or reliably estimated for the tissue used 

in the determination of the BAF. 

9. BCFs for organic chemicals may be 

based on measurement or radioactivity only 

when the BCF is intended to include metabolites or when there is confidence that there 

is no interference due to metabolites. 

10. The calculation of the BCF must appropriately address growth dilution. 

11. Other aspects of the methodology used 

should be similar to those described by 

ASTM (1990). 

E. Predicted BCFs. The following procedural 

and quality assurance requirements shall be 

met for predicted BCFs: 

1. The KOW used shall be of acceptable quality as described in section III.F below. 

2. The predicted baseline BCF shall be calculated using the equation: predicted baseline BCF = KOW

where: 

KOW = octanol-water partition coefficient. 

F. Octanol-Water Partition Coefficient (KOW). 

1. The value of KOW used for an organic 

chemical shall be determined by giving priority to the experimental and computational 

techniques used as follows: 

Log KOW <4: 

Priority Technique 

1 ....................................... Slow-stir. 

1 ....................................... Generator-column. 

1 ....................................... Shake-flask. 

2 ....................................... Reverse-phase liquid chromatography on C18 chromatography packing with extrapolation to zero percent solvent. 

3 ....................................... Reverse-phase liquid chromatography on C18 chromatography packing without extrapolation to zero percent solvent. 

4 ....................................... Calculated by the CLOGP program. 

Log KOW >4: 

Priority Technique 

1 ..................... Slow Stir. 

1 ..................... Generator-column. 

2 ..................... Reverse-phase liquid chromatography on 

C18 chromatography packing with extrapolation to zero percent solvent. 

3 ..................... Reverse-phase liquid chromatography on 

C18 chromatography packing without extrapolation to zero percent solvent. 

4 ..................... Shake-flask. 

5 ..................... Calculated by the CLOGP program. 

2. The CLOGP program is a computer program available from Pomona College. A 

value of KOW that seems to be different from 

the others should be considered an outlier 

and not used. The value of KOW used for an 

organic chemical shall be the geometric 

mean of the available KOW s with highest priority or can be calculated from the arithmetic mean of the available log KOW with the 

highest priority. Because it is an intermediate 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; 


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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: 

C

C

f l

B

l

=

Where: 

CB = concentration of the organic chemical 

in the tissue of aquatic biota (either 

whole organism or specified tissue) (μg/ 

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: 

C fC w

fd

fd w

t = ( )( )

Where: 

Cfdw = freely dissolved concentration of the 

organic chemical in the ambient water; 

Ct

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: 

f DOC K

POC K

fd ow ow

=

+ +

1

1

10

( )( ) ( )( )

Where: 

DOC=concentration of dissolved organic carbon, kg of dissolved organic carbon/L of 

water. 

KOW = octanol-water partition coefficient of 

the chemical. 

POC=concentration of particulate organic 

carbon, kg of particulate organic carbon/ 

L of water. 

C. Food-Chain Multiplier. In the absence of 

a field-measured BAF or a predicted BAF derived from a BSAF, a FCM shall be used to 

calculate the baseline BAF for trophic levels 

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: 

Baseline BAF =

Measured BAFT

t

f f fd l

− ⎡

⎣

⎢

⎢

⎤

⎦

⎥

⎥

⎡

⎣

⎢

⎢

⎤

⎦

⎥

⎥

1

1

Where: 

BAFt

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 


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Environmental Protection Agency Pt. 132, App. B 

from a field-measured BSAF of acceptable 

quality using the following equation: 

Baseline BAF Baseline BAF

BSAF i r

i i

r r

( ) = ( ) ⋅ ( ) ⋅ ( )

( ) ⋅ ( ) BSAF K

 K

ow

ow

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: 

BSAF

C

C

l

SOC

=

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: 

C

C

f SOC

S

OC

=

Where: 

CS = concentration of chemical in sediment 

(μg/g sediment). 

fOC = fraction of the sediment that is organic 

carbon. 

4. Predicting BAFs from BSAFs requires 

data from a steady-state (or near steadystate) 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 

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: 

Baseline BAF = FCM T

t

( ) − ⎡

⎣

⎢

⎢

⎤

⎦

⎥

⎥

⎡

⎣

⎢

⎢

⎤

⎦

⎥

⎥

Measured BCF

f f fd l

1

1

Where: 

BCFt

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: 


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Pt. 132, App. B 40 CFR Ch. I (7–1–15 Edition) 

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: 

f DOC K

POC K

kg L K kg L K

kg L K

fd ow ow

ow ow

ow

=

+ +

=

+ +

= +

1

1

10

1

1

0 000002

10

0 00000004

1

1 0 00000024

( )( ) ( )( )

( . / )( ) ( . / )( )

( . / )( )

B. The human health BAFs for an organic 

chemical shall be calculated using the following equations: 

For trophic level 3: 

Human Health BAF )(0.0182) +1](f TL3

HH

fd = [( ) baseline BAF

For trophic level 4: 

Human Health BAF )(0.0310) +1](f TL4

HH

fd = [( ) baseline BAF

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: 

Wildlife BAF baseline BAF TL3

WL

fd = [( ) )(0.0646) +1](f

For trophic level 4: 


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563 

Environmental Protection Agency Pt. 132, App. B 

Wildlife BAF baseline BAF TL4

WL

fd = [( ) )(0.1031) +1](f

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 

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 

Log KOW Trophic 

level 2 

Trophic 1

level 3 

Trophic 

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 


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Pt. 132, App. C 40 CFR Ch. I (7–1–15 Edition) 

TABLE B–1—FOOD-CHAIN MULTIPLIERS FOR

TROPHIC LEVELS 2, 3 & 4—Continued 

Log KOW Trophic 

level 2 

Trophic 1

level 3 

Trophic 

level 4 

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 

1The FCMs for trophic level 3 are the geometric mean of 

the FCMs for sculpin and alewife. 

APPENDIX C TO PART 132—GREAT LAKES

WATER QUALITY INITIATIVE METHODOLOGIES FOR DEVELOPMENT OF

HUMAN HEALTH CRITERIA AND VALUES

Great Lakes States and Tribes shall adopt 

provisions consistent with (as protective as) 

this appendix. 

I. INTRODUCTION

Great Lakes States and Tribes shall adopt 

provisions consistent with this appendix C to 

ensure protection of human health. 

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. 


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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 

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 


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Pt. 132, App. C 40 CFR Ch. I (7–1–15 Edition) 

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 wellconducted 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 


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Environmental Protection Agency Pt. 132, App. C 

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 

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 laboratorymeasured 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, 


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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-bycase 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 

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: 

RAD

q = 0 00001

1

.

*

Where: 

RAD=risk associated dose in milligrams of 

toxicant per kilogram body weight per 

day (mg/kg/day). 

0.00001 (1×10¥5)=incremental risk of developing cancer equal to one in 100,000. 

q1*=slope factor (mg/kg/day)¥1.

8. If human epidemiologic data and/or 

other biological data (animal) indicate that 

a chemical causes cancer via a threshold 

mechanism, the risk associated dose may, on 

a case-by-case basis, be calculated using a 

method which assumes a threshold mechanism is operative. 

B. Noncarcinogens. 

1. Noncarcinogens shall generally be assumed to have a threshold dose or concentration below which no adverse effects should be 

observed. Therefore, the Tier I criterion or 

Tier II value is the maximum water concentration of a substance at or below which 

a lifetime exposure from drinking the water, 

consuming fish caught in the water, and ingesting water as a result of participating in 

water-related recreation activities is likely 

to be without appreciable risk of deleterious 

effects. 

For some noncarcinogens, there may not 

be a threshold dose below which no adverse 

effects should be observed. Chemicals acting 

as genotoxic teratogens and germline 

mutagens are thought to possibly produce 

reproductive and/or developmental effects 

via a genetically linked mechanism which 

may have no threshold. Other chemicals also 

may not demonstrate a threshold. Criteria 

for these types of chemicals will be established on a case-by-case basis using appropriate assumptions reflecting the likelihood 

that no threshold exists. 

2. All appropriate human and animal 

toxicologic data shall be reviewed and evaluated. To the maximum extent possible, data 

most specific to the environmentally relevant route of exposure shall be used. Oral 

exposure data should be used preferentially 

over dermal and inhalation since, in most 

cases, the exposure routes of greatest concern are fish consumption and drinking 

water/incidental ingestion. When acceptable 


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Environmental Protection Agency Pt. 132, App. C 

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. 

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: 


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Pt. 132, App. C 40 CFR Ch. I (7–1–15 Edition) 

HCV

RAD BW

WC FC BAF FC BAF TL TL

HH

TL TL

HH = ×

+ × [ ] ( ) 33 44 + × ( )

Where: 

HCV=Human Cancer Value in milligrams per 

liter (mg/L). 

RAD=Risk associated dose in milligrams 

toxicant per kilogram body weight per 

day (mg/kg/day) that is associated with a 

lifetime incremental cancer risk equal to 

one in 100,000. 

BW=weight of an average human (BW=70 kg). 

WCd = per capita water consumption (both 

drinking and incidental exposure) for 

surface waters classified as public water 

supplies=two liters/day. 

or 

WCr = per capita incidental daily water ingestion for surface waters not used as 

human drinking water sources=0.01 liters/day. 

FCTL3 = mean consumption of trophic level 3 

of regionally caught freshwater 

fish=0.0036 kg/day. 

FCTL4 = mean consumption of trophic level 4 

of regionally caught freshwater 

fish=0.0114 kg/day. 

BAFHHTL3 = bioaccumulation factor for 

trophic level 3 fish, as derived using the 

BAF methodology in appendix B to part 

132. 

BAFHHTL4 = bioaccumulation factor for 

trophic level 4 fish, as derived using the 

BAF methodology in appendix B to part 

132. 

3. Noncarcinogens. The Tier I human noncancer criteria or Tier II values shall be calculated as follows: 

HNV

ADE BW RSC

WC FC BAF FC BAF TL TL

HH

TL TL

HH = × ×

+ × [ ] ( ) 33 44 + × ( )

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). 

RSC=Relative source contribution factor of 

0.8. An RSC derived from actual exposure 

data may be developed using the methodology outlined by the 1980 National 

Guidelines (see 45 FR 79354). 

BW=weight of an average human (BW=70 kg). 

WCd = per capita water consumption (both 

drinking and incidental exposure) for 

surface waters classified as public water 

supplies=two liters/day. 

or 

WCr = per capita incidental daily water ingestion for surface waters not used as 

human drinking water sources=0.01 liters/day. 

FCTL3 = mean consumption of trophic level 3 

fish by regional sport fishers of regionally caught freshwater fish=0.0036 kg/day. 

FCTL4 = mean consumption of trophic level 4 

fish by regional sport fishers of regionally caught freshwater fish=0.0114 kg/day. 

BAFHHTL3 = human health bioaccumulation 

factor for edible portion of trophic level 

3 fish, as derived using the BAF methodology in appendix B to part 132. 

BAFHHTL4 = human health bioaccumulation 

factor for edible portion of trophic level 

4 fish, as derived using the BAF methodology in appendix B to part 132. 

IV. REFERENCES

A. Howe, R.B., K.S. Crump and C. Van 

Landingham. 1986. Computer Program to Extrapolate Quantitative Animal Toxicity 

Data to Low Doses. Prepared for EPA under 

subcontract #2–251U–2745 to Research Triangle Institute. 

B. U.S. Environmental Protection Agency. 

1980. Water Quality Criteria Availability, Appendix C Guidelines and Methodology Used 

in the Preparation of Health Effects Assessment Chapters of the Consent Decree Water 

Quality Criteria Documents. Available from 

U.S. Environmental Protection Agency, Office of Water Resource Center (WH–550A), 

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. 


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Environmental Protection Agency Pt. 132, App. D 

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 

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. 

WV

TD

UF UF UF

Wt

W F BAF

ASL

TLi TLi

WL = × ×

×

+ × ∑( )

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. 


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Pt. 132, App. D 40 CFR Ch. I (7–1–15 Edition) 

W=Average daily volume of water consumed 

in liters per day (L/d) by the representative species. 

FTLi = Average daily amount of food consumed from trophic level i in kilograms 

per day (kg/d) by the representative species. 

BAFWLTLi = Bioaccumulation factor (BAF) 

for wildlife food in trophic level i in liters per kilogram (L/kg), developed using 

the BAF methodology in appendix B to 

part 132, Methodology for Development 

of Bioaccumulation Factors. For consumption of piscivorous birds by other 

birds (e.g., herring gull by eagles), the 

BAF is derived by multiplying the trophic level 3 BAF for fish by a biomagnification factor to account for the biomagnification from fish to the consumed 

birds. 

B. Identification of Representative Species for 

Protection. For bioaccumulative chemicals, 

piscivorous species are identified as the 

focus of concern for wildlife criteria development in the Great Lakes. An analysis of 

known or estimated exposure components for 

avian and mammalian wildlife species is presented in the Wildlife TSD. This analysis 

identifies three avian species (eagle, kingfisher and herring gull) and two mammalian 

species (mink and otter) as representative 

species for protection. The TD obtained from 

toxicity data for each taxonomic class is 

used to calculate WVs for each of the five 

representative species. 

C. Calculation of Avian and Mammalian 

Wildlife Values and GLWC Derivation. The 

avian WV is the geometric mean of the WVs 

calculated for the three representative avian 

species. The mammalian WV is the geometric mean of the WVs calculated for the 

two representative mammalian species. The 

lower of the mammalian and avian WVs 

must be selected as the GLWC. 

III. PARAMETERS OF THE EFFECT COMPONENT

OF THE WILDLIFE CRITERIA METHODOLOGY

A. Definitions. The following definitions 

provide additional specificity and guidance 

in the evaluation of toxicity data and the application of this methodology. 

Acceptable endpoints. For the purpose of 

wildlife criteria derivation, acceptable subchronic and chronic endpoints are those 

which affect reproductive or developmental 

success, organismal viability or growth, or 

any other endpoint which is, or is directly 

related to, parameters that influence population dynamics. 

Chronic effect. An adverse effect that is 

measured by assessing an acceptable endpoint, and results from continual exposure 

over several generations, or at least over a 

significant part of the test species’ projected 

life span or life stage. 

Lowest-observed-adverse-effect-level 

(LOAEL). The lowest tested dose or concentration of a substance which resulted in 

an observed adverse effect in exposed test organisms when all higher doses or concentrations resulted in the same or more severe effects. 

No-observed-adverse-effect-level (NOAEL). 

The highest tested dose or concentration of a 

substance which resulted in no observed adverse effect in exposed test organisms where 

higher doses or concentrations resulted in an 

adverse effect. 

Subchronic effect. An adverse effect, measured by assessing an acceptable endpoint, resulting from continual exposure for a period 

of time less than that deemed necessary for 

a chronic test. 

B. Minimum Toxicity Database for Tier I Criteria Development. A TD value is required for 

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 peerreviewed 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 


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Environmental Protection Agency Pt. 132, App. D 

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 

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 × (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 × (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 × (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 


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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. 

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. 


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Environmental Protection Agency Pt. 132, App. E 

Tables to Appendix D to Part 132 

TABLE D–1—TIER I GREAT LAKES WILDLIFE

CRITERIA

Substance Criterion 

(μg/L) 

DDT & Metabolites ............................................. 1.1E–5 

TABLE D–1—TIER I GREAT LAKES WILDLIFE

CRITERIA—Continued 

Substance Criterion 

(μg/L) 

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

Species (units) Adult body 

weight (kg) 

Water ingestion rate 

(L/day) 

Food ingestion rate of prey in 

each trophic level (kg/day) Trophic level of prey (percent of diet) 

Mink ................................. 0 .80 0.081 TL3: 0.159; Other: 0.0177 ........ TL3: 90; Other: 10. 

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: 0.0121 ........ Birds: 8—PB: 70; non-aquatic: 30. 

NOTE: TL3=trophic level three fish; TL4=trophic level four fish; PB=piscivorous birds; Other=non-aquatic birds and mammals. 

APPENDIX E TO PART 132—GREAT LAKES

WATER QUALITY INITIATIVE

ANTIDEGRADATION POLICY

Great Lakes States and Tribes shall adopt 

provisions consistent with (as protective as) 

appendix E to part 132. 

The State or Tribe shall adopt an 

antidegradation standard applicable to all 

waters of the Great Lakes System and identify the methods for implementing such a 

standard. Consistent with 40 CFR 131.12, an 

acceptable antidegradation standard and implementation procedure are required elements of a State’s or Tribe’s water quality 

standards program. Consistent with 40 CFR 

131.6, a complete water quality standards 

submission needs to include both an 

antidegradation standard and 

antidegradation implementation procedures. 

At a minimum, States and Tribes shall adopt 

provisions in their antidegradation standard 

and implementation methods consistent 

with sections I, II, III and IV of this appendix, applicable to pollutants identified as 

bioaccumulative chemicals of concern 

(BCCs). 

I. ANTIDEGRADATION STANDARD

This antidegradation standard shall be applicable to any action or activity by any 

source, point or nonpoint, of pollutants that 

is anticipated to result in an increased loading of BCCs to surface waters of the Great 

Lakes System and for which independent 

regulatory authority exists requiring compliance with water quality standards. Pursuant to this standard: 

A. Existing instream water uses, as defined 

pursuant to 40 CFR 131, and the level of 

water quality necessary to protect existing 

uses shall be maintained and protected. 

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 


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Pt. 132, App. E 40 CFR Ch. I (7–1–15 Edition) 

waters of national and State parks and wildlife refuges and waters of exceptional recreational or ecological significance, that 

water quality shall be maintained and protected; and 

D. In those cases where the potential lowering of water quality is associated with a 

thermal discharge, the decision to allow such 

degradation shall be consistent with section 

316 of the Clean Water Act (CWA). 

II. ANTIDEGRADATION IMPLEMENTATION

PROCEDURES

A. Definitions. 

Control Document. Any authorization issued 

by a State, Tribal or Federal agency to any 

source of pollutants to waters under its jurisdiction that specifies conditions under 

which the source is allowed to operate. 

High quality waters. High quality waters 

are water bodies in which, on a parameter by 

parameter basis, the quality of the waters 

exceeds levels necessary to support propagation of fish, shellfish, and wildlife and recreation in and on the water. 

Lake Superior Basin—Outstanding International Resource Waters. Those waters designated as such by a Tribe or State consistent with the September 1991 Bi-National 

Program to Restore and Protect the Lake 

Superior Basin. The purpose of such designations shall be to ensure that any new or increased discharges of Lake Superior bioaccumulative substances of immediate concern are subject to best technology in process and treatment requirements. 

Lake Superior Basin—Outstanding National 

Resource Waters. Those waters designated as 

such by a Tribe or State consistent with the 

September 1991 Bi-National Program to Restore and Protect the Lake Superior Basin. 

The purpose of such designations shall be to 

prohibit new or increased discharges of Lake 

Superior bioaccumulative substances of immediate concern from point sources in these 

areas. 

Lake Superior bioaccumulative substances of 

immediate concern. A list of substances identified in the September 1991 Bi-National Program to Restore and Protect the Lake Superior Basin. They include: 2, 3, 7, 8-TCDD; 

octachlorostyrene; hexachlorobenzene; 

chlordane; DDT, DDE, and other metabolites; toxaphene; PCBs; and mercury. Other 

chemicals may be added to the list following 

States’ or Tribes’ assessments of environmental effects and impacts and after public 

review and comment. 

Outstanding National Resource Waters. 

Those waters designated as such by a Tribe 

or State. The State or Tribal designation 

shall describe the quality of such waters to 

serve as the benchmark of the water quality 

that shall be maintained and protected. 

Waters that may be considered for designation as Outstanding National Resource 

Waters include, but are not limited to, water 

bodies that are recognized as: 

Important because of protection through 

official action, such as Federal or State law, 

Presidential or secretarial action, international treaty, or interstate compact; 

Having exceptional recreational significance; 

Having exceptional ecological significance; 

Having other special environmental, recreational, or ecological attributes; or waters 

whose designation as Outstanding National 

Resource Waters is reasonably necessary for 

the protection of other waters so designated. 

Significant Lowering of Water Quality. A significant lowering of water quality occurs 

when there is a new or increased loading of 

any BCC from any regulated existing or new 

facility, either point source or nonpoint 

source for which there is a control document 

or reviewable action, as a result of any activity including, but not limited to: 

(1) Construction of a new regulated facility 

or modification of an existing regulated facility such that a new or modified control 

document is required; 

(2) Modification of an existing regulated 

facility operating under a current control 

document such that the production capacity 

of the facility is increased; 

(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 


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Environmental Protection Agency Pt. 132, App. E 

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 

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, 


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Pt. 132, App. F 40 CFR Ch. I (7–1–15 Edition) 

then any entity proposing a new or increased 

discharge of any Lake Superior bioaccumulative substance of immediate concern to the 

Lake Superior Basin shall identify the best 

technology in process and treatment to 

eliminate or reduce the extent of the lowering of water quality. In this case, the requirements in section III.B of this appendix 

do not apply. 

D. Important Social or Economic Development 

Analysis. Identify the social or economic development and the benefits to the area in 

which the waters are located that will be 

foregone if the lowering of water quality is 

not allowed. 

E. Special Provision for Remedial Actions. 

Entities proposing remedial actions pursuant 

to the CERCLA, as amended, corrective actions pursuant to the Resource Conservation 

and Recovery Act, as amended, or similar actions pursuant to other Federal or State environmental statutes may submit information to the Director that demonstrates that 

the action utilizes the most cost effective 

pollution prevention and treatment techniques available, and minimizes the necessary lowering of water quality, in lieu of 

the information required by sections III.B 

through III.D of this appendix. 

IV. ANTIDEGRADATION DECISION

A. Once the Director determines that the 

information provided by the entity proposing 

to increase loadings is administratively complete, the Director shall use that information to determine whether or not the lowering of water quality is necessary, and, if it 

is necessary, whether or not the lowering of 

water quality will support important social 

and economic development in the area. If the 

proposed lowering of water quality is either 

not necessary, or will not support important 

social and economic development, the Director shall deny the request to lower water 

quality. If the lowering of water quality is 

necessary, and will support important social 

and economic development, the Director 

may allow all or part of the proposed lowering to occur as necessary to accommodate 

the important social and economic development. In no event may the decision reached 

under this section allow water quality to be 

lowered below the minimum level required 

to fully support existing and designated uses. 

The decision of the Director shall be subject 

to the public participation requirements of 

40 CFR 25. 

B. If States designate the waters of Lake 

Superior as Outstanding International Resource Waters pursuant to section II.E.2 of 

this appendix, any entity requesting to lower 

water quality in the Lake Superior Basin as 

a result of the new or increased discharge of 

any Lake Superior bioaccumulative substance of immediate concern shall be required to install and utilize the best technology in process and treatment as identified 

by the Director. 

APPENDIX F TO PART 132—GREAT LAKES

WATER QUALITY INITIATIVE IMPLEMENTATION PROCEDURES

PROCEDURE 1: SITE-SPECIFIC MODIFICATIONS

TO CRITERIA AND VALUES

Great Lakes States and Tribes shall adopt 

provisions consistent with (as protective as) 

this procedure. 

A. Requirements for Site-specific Modifications to Criteria and Values. Criteria and values may be modified on a site-specific basis 

to reflect local environmental conditions as 

restricted by the following provisions. Any 

such modifications must be protective of 

designated uses and aquatic life, wildlife or 

human health and be submitted to EPA for 

approval. In addition, any site-specific modifications that result in less stringent criteria 

must be based on a sound scientific rationale 

and shall not be likely to jeopardize the continued existence of endangered or threatened 

species listed or proposed under section 4 of 

the Endangered Species Act (ESA) or result 

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, 


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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 

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 systemwide 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 


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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 sitespecific 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: 

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: 


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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; 

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 


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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 §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 casespecific 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 EPAapproved 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 


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Environmental Protection Agency Pt. 132, App. F 

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 

§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 

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 


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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-bycase 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. 

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 


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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 

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 pollutantspecific 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; 


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d. The 90-day, 10-year flow (90Q10) for wildlife criteria. 

e. TMDLs, WLAs in the absence of TMDLs, 

and preliminary WLAs for the purpose of determining the need for WQBELs calculated 

using dynamic modelling do not need to incorporate the stream design flows specified 

in sections E.1.a through E.1.d of this procedure. 

2. Loading Capacity. The loading capacity is 

the greatest amount of loading that a water 

can receive without violating water quality 

standards. The loading capacity is initially 

calculated at the farthest downstream location in the watershed drainage basin. The 

maximum allowable loading consistent with 

the attainment of each applicable numeric 

criterion or value for a given pollutant is determined by multiplying the applicable criterion or value by the flow at the farthest 

downstream location in the tributary basin 

at the design flow condition described above. 

This loading is then compared to the loadings at sites within the basin to assure that 

applicable numeric criteria or values for a 

given pollutant are not exceeded at all applicable sites. The lowest load is then selected 

as the loading capacity. 

3. Polluant Degradation. TMDLs, WLAs in 

the absence of a TMDL and preliminary 

WLAs for purposes of determining the need 

for WQBELs under procedure 5 of appendix F 

shall be based on the assumption that a pollutant does not degrade. However, the regulatory authority may take into account degradation of the pollutant if each of the following conditions are met. 

a. Scientifically valid field studies or other 

relevant information demonstrate that degradation of the pollutant is expected to 

occur under the full range of environmental 

conditions expected to be encountered; 

b. Scientifically valid field studies or other 

relevant information address other factors 

that affect the level of pollutants in the 

water column including, but not limited to, 

resuspension of sediments, chemical speciation, and biological and chemical transformation. 

4. Acute Aquatic Life Criteria and Values. 

WLAs and LAs established in a TMDL, WLAs 

in the absence of a TMDL, and preliminary 

WLAs for the purpose of determining the 

need for WQBELs based on acute aquatic life 

criteria or values shall not exceed the FAV, 

unless a mixing zone demonstration is completed and approved pursuant to section F of 

this procedure. If mixing zones from two or 

more proximate sources interact or overlap, 

the combined effect must be evaluated to ensure that applicable criteria and values will 

be met in the area where any applicable 

acute mixing zones overlap. This acute WLA 

review shall include, but not be limited to, 

consideration of: 

a. The expected dilution under all effluent 

flow and concentration conditions at stream 

design flow; 

b. Maintenance of a zone of passage for 

aquatic organisms; and 

c. Protection of critical aquatic habitat. 

In no case shall a permitting authority 

grant a mixing zone that would likely jeopardize the continued existence of any endangered or threatened species listed under section 4 of the ESA or result in the destruction 

or adverse modification of such species’ critical habitat. 

5. Chronic Mixing Zones. WLAs and LAs established in a TMDL, WLAs in the absence of 

a TMDL, and preliminary WLAs for the purposes of determining the need for WQBELs 

for protection of aquatic life, wildlife and 

human health from chronic effects shall be 

calculated using a dilution fraction no greater than 25 percent of the stream design flow 

unless a mixing zone demonstration pursuant to section F of this procedure is conducted and approved. A demonstration for a 

larger mixing zone may be provided, if approved and implemented in accordance with 

section F of this procedure. In no case shall 

a permitting authority grant a mixing zone 

that would likely jeopardize the continued 

existence of any endangered or threatened 

species listed under section 4 of the ESA or 

result in the destruction or adverse modification of such species’ critical habitat. 

F. Mixing Zone Demonstration Requirements. 

1. For purposes of establishing a mixing 

zone other than as specified in sections D 

and E above, a mixing zone demonstration 

must: 

a. Describe the amount of dilution occurring at the boundaries of the proposed mixing zone and the size, shape, and location of 

the area of mixing, including the manner in 

which diffusion and dispersion occur; 

b. For sources discharging to the open 

waters of the Great Lakes (OWGLs), define 

the location at which discharge-induced mixing ceases; 

c. Document the substrate character and 

geomorphology within the mixing zone; 

d. Show that the mixing zone does not 

interfere with or block passage of fish or 

aquatic life; 

e. Show that the mixing zone will be allowed only to the extent that the level of the 

pollutant permitted in the waterbody would 

not likely jeopardize the continued existence 

of any endangered or threatened species listed under section 4 of the ESA or result in the 

destruction or adverse modification of such 

species’ critical habitat; 

f. Show that the mixing zone does not extend to drinking water intakes; 

g. Show that the mixing zone would not 

otherwise interfere with the designated or 

existing uses of the receiving water or downstream waters; 


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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-pdioxins (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: 

( ) ( )( )( ) TEC C TEF BEF tcdd x x x = ∑

where: 

(TEC)tcdd = 2,3,7,8-TCDD toxicity equivalence 

concentration in effluent 

(C)x = concentration of total chemical x in 

effluent 

(TEF)x = TCDD toxicity equivalency factor 

for x 

(BEF)x = TCDD bioaccumulation equivalency 

factor for x 

2. The 2,3,7,8-TCDD toxicity equivalence 

concentration in effluent shall be used when 

developing waste load allocations under procedure 3, preliminary waste load allocations 

for purposes of determining reasonable potential under procedure 5, and for purposes of 

establishing effluent quality limits under 

procedure 5. 

TABLE 1—TOXICITY EQUIVALENCY FACTORS FOR

CDDS AND CDFS

Congener TEF 

2,3,7,8-TCDD ..................................................... 1 .0 

1,2,3,7,8-PeCDD ............................................... 0 .5 

1,2,3,4,7,8-HxCDD ............................................ 0 .1 

1,2,3,6,7,8-HxCDD ............................................ 0 .1 

1,2,3,7,8,9-HxCDD ............................................ 0 .1 

1,2,3,4,6,7,8-HpCDD ......................................... 0 .01 

OCDD ................................................................ 0 .001 

2,3,7,8-TCDF ..................................................... 0 .1 

1,2,3,7,8-PeCDF ................................................ 0 .05 

2,3,4,7,8-PeCDF ................................................ 0 .5 

1,2,3,4,7,8-HxCDF ............................................. 0 .1 

1,2,3,6,7,8-HxCDF ............................................. 0 .1 

2,3,4,6,7,8-HxCDF ............................................. 0 .1 

1,2,3,7,8,9-HxCDF ............................................. 0 .1 

1,2,3,4,6,7,8-HpCDF .......................................... 0 .01 

1,2,3,4,7,8,9-HpCDF .......................................... 0 .01 

OCDF ................................................................. 0 .001 

TABLE 2—BIOACCUMULATION EQUIVALENCY

FACTORS FOR CDDS AND CDFS

Congener BEF 

2,3,7,8-TCDD ..................................................... 1 .0 

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 


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TABLE 2—BIOACCUMULATION EQUIVALENCY

FACTORS FOR CDDS AND CDFS—Continued 

Congener BEF 

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 facilityspecific effluent monitoring data are available, the permitting authority shall make 

this determination by developing preliminary effluent limitations (PEL) and comparing those effluent limitations to the projected effluent quality (PEQ) of the discharge in accordance with the following procedures. In all cases, the permitting authority shall use any valid, relevant, representative information that indicates a reasonable 

potential to exceed any Tier I criterion or 

Tier II value. 

A. Developing Preliminary Effluent Limitations on the Discharge of a Pollutant From a 

Point Source. 

1. The permitting authority shall develop 

preliminary wasteload allocations (WLAs) 

for the discharge of the pollutant from the 

point source to protect human health, wildlife, acute aquatic life, and chronic aquatic 

life, based upon any existing Tier I criteria. 

Where there is no Tier I criterion nor sufficient data to calculate a Tier I criterion, the 

permitting authority shall calculate a Tier 

II value for such pollutant for the protection 

of human health, and aquatic life and the 

preliminary WLAs shall be based upon such 

values. Where there is insufficient data to 

calculate a Tier II value, the permitting authority shall apply the procedure set forth in 

section C of this procedure to determine 

whether data must be generated to calculate 

a Tier II value. 

2. The following provisions in procedure 3 

of appendix F shall be used as the basis for 

determining preliminary WLAs in accordance with section 1 of this procedure: procedure 3.B.9, Background Concentrations of 

Pollutants; procedure 3.C, Mixing Zones for 

Bioaccumulative Chemicals of Concern 

(BCCs), procedures 3.C.1, and 3.C.3 through 

3.C.6; procedure 3.D, Deriving TMDLs for 

Discharges to Lakes (when the receiving 

water is an open water of the Great Lakes 

(OWGL), an inland lake or other water of the 

Great Lakes System with no appreciable 

flow relative to its volume); procedure 3.E, 

Deriving TMDLs, WLAs and Preliminary 

WLAs, and load allocations (LAs) for Discharges to Great Lakes System Tributaries 

(when the receiving water is a tributary or 

connecting channel of the Great Lakes that 

exhibits appreciable flow relative to its volume); and procedure 3.F, Mixing Zone Demonstration Requirements. 

3. The permitting authority shall develop 

PELs consistent with the preliminary WLAs 

developed pursuant to sections A.1 and A.2 of 

this procedure, and in accordance with existing State or Tribal procedures for converting 

WLAs into WQBELs. At a minimum: 

a. The PELs based upon criteria and values 

for the protection of human health and wildlife shall be expressed as monthly limitations; 

b. The PELs based upon criteria and values 

for the protection of aquatic life from chronic effects shall be expressed as either monthly limitations or weekly limitations; and 

c. The PELs based upon the criteria and 

values for the protection of aquatic life from 

acute effects shall be expressed as daily limitations. 

B. Determining Reasonable Potential Using 

Effluent Pollutant Concentration Data. 

If representative, facility-specific effluent 

monitoring data samples are available for a 

pollutant discharged from a point source to 

the waters of the Great Lakes System, the 

permitting authority shall apply the following procedures: 

1. The permitting authority shall specify 

the PEQ as the 95 percent confidence level of 

the 95th percentile based on a log-normal 

distribution of the effluent concentration; or 

the maximum observed effluent concentration, whichever is greater. In calculating the 

PEQ, the permitting authority shall identify 

the number of effluent samples and the coefficient of variation of the effluent data, obtain the appropriate multiplying factor from 

Table 1 of procedure 6 of appendix F, and 

multiply the maximum effluent concentration by that factor. The coefficient of variation of the effluent data shall be calculated 

as the ratio of the standard deviation of the 

effluent data divided by the arithmetic average of the effluent data, except that where 

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 


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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 noncancer human health, acute aquatic life and 

chronic aquatic life do not exist, the permitting authority shall take the following actions: 

a. The permitting authority shall use all 

available, relevant information, including 

Quantitative Structure Activity Relationship information and other relevant toxicity 

information, to estimate ambient screening 

values for such pollutant which will protect 

humans from health effects other than cancer, and aquatic life from acute and chronic 

effects. 

b. Using the procedures specified in sections A.1 and A.2 of this procedure, the permitting authority shall develop preliminary 

WLAs for the discharge of the pollutant from 

the point source to protect human health, 

acute aquatic life, and chronic aquatic life, 

based upon the estimated ambient screening 

values. 

c. The permitting authority shall develop 

PELs in accordance with section A.3 of this 

procedure, which are consistent with the preliminary WLAs developed in accordance with 

section C.1.b of this procedure. 

d. The permitting authority shall compare 

the PEQ developed according to the procedures set forth in section B of this procedure 

to the PELs developed in accordance with 

section C.1.c of this procedure. If the PEQ exceeds any of the PELs, the permitting authority shall generate or require the permittee to generate the data necessary to derive Tier II values for noncancer human 

health, acute aquatic life and chronic aquatic life. 

e. The data generated in accordance with 

section C.1.d of this procedure shall be used 

in calculating Tier II values as required 

under section A.1 of this procedure. The calculated Tier II value shall be used in calculating the preliminary WLA and PEL under 

section A of this procedure, for purposes of 

determining whether a WQBEL must be included in the permit. If the permitting authority finds that the PEQ exceeds the calculated PEL, a WQBEL for the pollutant or 

a permit limit on an indicator parameter 

consistent with 40 CFR 122.44(d)(1)(vi)(C) 

must be included in the permit. 

2. With the exception of bioaccumulative 

chemicals of concern (BCCs), a permitting 

authority is not required to apply the procedures set forth in section C.1 of this procedure or include WQBELs to protect aquatic 

life for any pollutant listed in Table 6 of part 

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; 


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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 pollutantby-pollutant, outfall-by-outfall, basis. 

c. This section and section E apply only in 

the absence of a TMDL applicable to the discharge prepared by the State or Tribe and 

approved by EPA, or prepared by EPA pursuant to 40 CFR 130.7(d), or in the absence of an 

assessment and remediation plan submitted 

and approved in accordance with procedure 

3.A. of appendix F. This section and section 

E do not alter the permitting authority’s obligation under 40 CFR 122.44(d)(vii)(B) to develop effluent limitations consistent with 

the assumptions and requirements of any 

available WLA for the discharge, which is 

part of a TMDL prepared by the State or 

Tribe and approved by EPA pursuant to 40 

CFR 130.7, or prepared by EPA pursuant to 40 

CFR 130.7(d). 

2. Definition of Same Body of Water. 

a. This definition applies to this section 

and section E of this procedure. 

b. An intake pollutant is considered to be 

from the same body of water as the discharge 

if the permitting authority finds that the intake pollutant would have reached the vicinity of the outfall point in the receiving water 

within a reasonable period had it not been 

removed by the permittee. This finding may 

be deemed established if: 

i. The background concentration of the 

pollutant in the receiving water (excluding 

any amount of the pollutant in the facility’s 

discharge) is similar to that in the intake 

water; 

ii. There is a direct hydrological connection between the intake and discharge 

points; and 

iii. Water quality characteristics (e.g., 

temperature, Ph, hardness) are similar in the 

intake and receiving waters. 

c. The permitting authority may also consider other site-specific factors relevant to 

the transport and fate of the pollutant to 

make the finding in a particular case that a 

pollutant would or would not have reached 

the vicinity of the outfall point in the receiving water within a reasonable period had 

it not been removed by the permittee. 

d. An intake pollutant from groundwater 

may be considered to be from the same body 

of water if the permitting authority determines that the pollutant would have reached 

the vicinity of the outfall point in the receiving water within a reasonable period had 

it not been removed by the permittee, except 

that such a pollutant is not from the same 

body of water if the groundwater contains 

the pollutant partially or entirely due to 

human activity, such as industrial, commercial, or municipal operations, disposed actions, or treatment processes. 

e. An intake pollutant is the amount of a 

pollutant that is present in waters of the 

United States (including groundwater as provided in section D.2.d of this procedure) at 

the time it is withdrawn from such waters by 

the discharger or other facility (e.g., public 

water supply) supplying the discharger with 

intake water. 

3. Reasonable Potential Determination. 

a. The permitting authority may use the 

procedure described in this section of procedure 5 in lieu of procedures 5.A through C 

provided the conditions specified below are 

met. 

b. The permitting authority may determine that there is no reasonable potential 

for the discharge of an identified intake pollutant or pollutant parameter to cause or 

contribute to an excursion above a narrative 

or numeric water quality criterion within an 

applicable water quality standard where a 

discharger demonstrates to the satisfaction 

of the permitting authority (based upon information provided in the permit application 

or other information deemed necessary by 

the permitting authority) that: 

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; 


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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 instream; 

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 instream. 

c. Upon a finding under section D.3.b of 

this procedure that a pollutant in the discharge does not cause, have the reasonable 

potential to cause, or contribute to an excursion above an applicable water quality standard, the permitting authority is not required 

to include a WQBEL for the identified intake 

pollutant in the facility’s permit, provided: 

i. The NPDES permit fact sheet or statement of basis includes a specific determination that there is no reasonable potential for 

the discharge of an identified intake pollutant to cause or contribute to an excursion 

above an applicable narrative or numeric 

water quality criterion and references appropriate supporting documentation included in 

the administrative record; 

ii. The permit requires all influent, effluent, and ambient monitoring necessary to 

demonstrate that the conditions in section 

D.3.b of this procedure are maintained during the permit term; and 

iii. The permit contains a reopener clause 

authorizing modification or revocation and 

reissuance of the permit if new information 

indicates changes in the conditions in section D.3.b of this procedure. 

d. Absent a finding under section D.3.b of 

this procedure that a pollutant in the discharge does not cause, have the reasonable 

potential to cause, or contribute to an excursion above an applicable water quality standard, the permitting authority shall use the 

procedures under sections 5.A through C of 

this procedure to determine whether a discharge causes, has the reasonable potential 

to cause, or contribute to an excursion above 

an applicable narrative or numeric water 

quality criterion. 

E. Consideration of Intake Pollutants in Establishing WQBELs. 

1. General. This section applies only when 

the concentration of the pollutant of concern 

upstream of the discharge (as determined 

using the provisions in procedure 3.B.9 of appendix F) exceeds the most stringent applicable water quality criterion for that pollutant. 

2. The requirements of sections D.1–D.2 of 

this procedure shall also apply to this section. 

3. Intake Pollutants from the Same Body of 

Water. 

a. In cases where a facility meets the conditions in sections D.3.b.i and D.3.b.iii 

through D.3.b.v of this procedure, the permitting authority may establish effluent 

limitations allowing the facility to discharge 

a mass and concentration of the pollutant 

that are no greater than the mass and concentration of the pollutant identified in the 

facility’s intake water (‘‘no net addition limitations’’). The permit shall specify how 

compliance with mass and concentration 

limitations shall be assessed. No permit may 

authorize ‘‘no net addition limitations’’ 

which are effective after March 23, 2007. 

After that date, WQBELs shall be established 

in accordance with procedure 5.F.2 of appendix F. 

b. Where proper operation and maintenance of a facility’s treatment system results in removal of a pollutant, the permitting authority may establish limitations 

that reflect the lower mass and/or concentration of the pollutant achieved by such treatment, taking into account the feasibility of 

establishing such limits. 

c. For pollutants contained in intake water 

provided by a water system, the concentration of the intake pollutant shall be determined at the point where the raw water supply is removed from the same body of water, 

except that it shall be the point where the 

water enters the water supplier’s distribution system where the water treatment system removes any of the identified pollutants 

from the raw water supply. Mass shall be determined by multiplying the concentration 

of the pollutant determined in accordance 

with this paragraph by the volume of the facility’s intake flow received from the water 

system. 

4. Intake Pollutants from a Different Body of 

Water. Where the pollutant in a facility’s discharge originates from a water of the United 

States that is not the same body of water as 

the receiving water (as determined in accordance with section D.2 of this procedure), 

WQBELs shall be established based upon the 

most stringent applicable water quality criterion for that pollutant. 

5. Multiple Sources of Intake Pollutants. 

Where a facility discharges intake pollutants 

that originate in part from the same body of 

water, and in part from a different body of 

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 


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can be established and is included in the permit. 

F. Other Applicable Conditions. 

1. In addition to the above procedures, effluent limitations shall be established to 

comply with all other applicable State, Tribal and Federal laws and regulations, including technology-based requirements and 

antidegradation policies. 

2. Once the permitting authority has determined in accordance with this procedure 

that a WQBEL must be included in an 

NPDES permit, the permitting authority 

shall: 

a. Rely upon the WLA established for the 

point source either as part of any TMDL prepared under procedure 3 of this appendix and 

approved by EPA pursuant to 40 CFR 130.7, 

or as part of an assessment and remediation 

plan developed and approved in accordance 

with procedure 3.A of this appendix, or, in 

the absence of such TMDL or plan, calculate 

WLAs for the protection of acute and chronic 

aquatic life, wildlife and human health consistent with the provisions referenced in section A.1 of this procedure for developing preliminary wasteload allocations, and 

b. Develop effluent limitations consistent 

with these WLAs in accordance with existing 

State or Tribal procedures for converting 

WLAs into WQBELs. 

3. When determining whether WQBELs are 

necessary, information from chemical-specific, whole effluent toxicity and biological 

assessments shall be considered independently. 

4. If the geometric mean of a pollutant in 

fish tissue samples collected from a 

waterbody exceeds the tissue basis of a Tier 

I criterion or Tier II value, after consideration of the variability of the pollutant’s 

bioconcentration and bioaccumulation in 

fish, each facility that discharges detectable 

levels of such pollutant to that water has the 

reasonable potential to cause or contribute 

to an excursion above a Tier I criteria or a 

Tier II value and the permitting authority 

shall establish a WQBEL for such pollutant 

in the NPDES permit for such facility. 

PROCEDURE 6: WHOLE EFFLUENT TOXICITY

REQUIREMENTS

The Great Lakes States and Tribes shall 

adopt provisions consistent with (as protective as) procedure 6 of appendix F of part 132. 

The following definitions apply to this 

part: 

Acute toxic unit (TUa). 100/LC50 where the 

LC50 is expressed as a percent effluent in the 

test medium of an acute whole effluent toxicity (WET) test that is statistically or 

graphically estimated to be lethal to 50 percent of the test organisms. 

Chronic toxic unit (TUc). 100/NOEC or 100/ 

IC25, where the NOEC and IC25 are expressed 

as a percent effluent in the test medium. 

Inhibition concentration 25 (IC25). The toxicant concentration that would cause a 25 

percent reduction in a non-quantal biological measurement for the test population. For 

example, the IC25 is the concentration of 

toxicant that would cause a 25 percent reduction in mean young per female or in growth 

for the test population. 

No observed effect concentration (NOEC). The 

highest concentration of toxicant to which 

organisms are exposed in a full life-cycle or 

partial life-cycle (short-term) test, that 

causes no observable adverse effects on the 

test organisms (i.e., the highest concentration of toxicant in which the values for the 

observed responses are not statistically significantly different from the controls). 

A. Whole Effluent Toxicity Requirements. The 

Great Lakes States and Tribes shall adopt 

whole effluent toxicity provisions consistent 

with the following: 

1. A numeric acute WET criterion of 0.3 

acute toxic units (TUa) measured pursuant to 

test methods in 40 CFR part 136, or a numeric interpretation of a narrative criterion 

establishing that 0.3 TUa measured pursuant 

to test methods in 40 CFR part 136 is necessary to protect aquatic life from acute effects of WET. At the discretion of the permitting authority, the foregoing requirement shall not apply in an acute mixing zone 

that is sized in accordance with EPA-approved State and Tribal methods. 

2. A numeric chronic WET criterion of one 

chronic toxicity unit (TUc) measured pursuant to test methods in 40 CFR part 136, or a 

numeric interpretation of a narrative criterion establishing that one TUc measured 

pursuant to test methods in 40 CFR part 136 

is necessary to protect aquatic life from the 

chronic effects of WET. At the discretion of 

the permitting authority, the foregoing requirements shall not apply within a chronic 

mixing zone consistent with: (a) procedures 

3.D.1 and 3.D.4, for discharges to the open of 

the Great Lakes (OWGL), inland lakes and 

other waters of the Great Lakes System with 

no appreciable flow relative to their volume, 

or (b) procedure 3.E.5 for discharges to tributaries and connecting channels of the Great 

Lakes System. 

B. WET Test Methods. All WET tests performed to implement or ascertain compliance with this procedure shall be performed 

in accordance with methods established in 40 

CFR part 136. 

C. Permit Conditions. 

1. Where a permitting authority determines pursuant to section D of this procedure that the WET of an effluent is or may 

be discharged at a level that will cause, have 

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: 


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Environmental Protection Agency Pt. 132, App. F 

a. Shall (except as provided in section C.1.e 

of this procedure) establish a water qualitybased effluent limitation (WQBEL) or 

WQBELs for WET consistent with section 

C.1.b of this procedure; 

b. Shall calculate WQBELs pursuant to 

section C.1.a. of this procedure to ensure attainment of the State’s or Tribe’s chronic 

WET criteria under receiving water flow conditions described in procedures 3.E.1.a (or 

where applicable, with procedure 3.E.1.e) for 

Great Lakes System tributaries and connecting channels, and with mixing zones no 

larger than allowed pursuant to section A.2. 

of this procedure. Shall calculate WQBELs to 

ensure attainment of the State’s or Tribe’s 

acute WET criteria under receiving water 

flow conditions described in procedure 3.E.1.b 

(or where applicable, with procedure 3.E.1.e) 

for Great Lakes System tributaries and connecting channels, with an allowance for mixing zones no greater than specified pursuant 

to section A.1 of this procedure. 

c. May specify in the NPDES permit the 

conditions under which a permittee would be 

required to perform a toxicity reduction 

evaluation. 

d. May allow with respect to any WQBEL 

established pursuant to section C.1.a of this 

procedure an appropriate schedule of compliance consistent with procedure 9 of appendix 

F; and 

e. May decide on a case-by-case basis that 

a WQBEL for WET is not necessary if the 

State’s or Tribe’s water quality standards do 

not contain a numeric criterion for WET, 

and the permitting authority demonstrates 

in accordance with 40 CFR 122.44(d)(1)(v) that 

chemical-specific effluent limits are sufficient to ensure compliance with applicable 

criteria. 

2. Where a permitting authority lacks sufficient information to determine pursuant to 

section D of this procedure whether the WET 

of an effluent is or may be discharged at levels that will cause, have the reasonable potential to cause, or contribute to an excursion above any numeric WET criterion or 

narrative criterion within a State’s or 

Tribe’s water quality standards, then the 

permitting authority should consider including in the NPDES permit appropriate conditions to require generation of additional 

data and to control toxicity if found, such 

as: 

a. WET testing requirements to generate 

the data needed to adequately characterize 

the toxicity of the effluent to aquatic life; 

b. Language requiring a permit reopener 

clause to establish WET limits if any toxicity testing data required pursuant to section C.2.a of this procedure indicate that the 

WET of an effluent is or may be discharged 

at levels that will cause, have the reasonable 

potential to cause, or contribute to an excursion above any numeric WET criterion or 

narrative criterion within a State’s or 

Tribe’s water quality standards. 

3. Where sufficient data are available for a 

permitting authority to determine pursuant 

to section D of this procedure that the WET 

of an effluent neither is nor may be discharged at a level that will cause, have the 

reasonable potential to cause, or contribute 

to an excursion above any numeric WET criterion or narrative criterion within a State’s 

or Tribe’s water quality standards, the permitting authority may include conditions 

and limitations described in section C.2 of 

this procedure at its discretion. 

D. Reasonable Potential Determinations. The 

permitting authority shall take into account 

the factors described in 40 CFR 122.44(d)(1)(ii) 

and, where representative facility-specific 

WET effluent data are available, apply the 

following requirements in determining 

whether the WET of an effluent is or may be 

discharged at a level that will cause, have 

the reasonable potential to cause, or contribute to an excursion above any numeric 

WET criterion or narrative criterion within 

a State’s or Tribe’s water quality standards. 

1. The permitting authority shall characterize the toxicity of the discharge by: 

a. Either averaging or using the maximum 

of acute toxicity values collected within the 

same day for each species to represent one 

daily value. The maximum of all daily values 

for the most sensitive species tested is used 

for reasonable potential determinations; 

b. Either averaging or using the maximum 

of chronic toxicity values collected within 

the same calendar month for each species to 

represent one monthly value. The maximum 

of such values, for the most sensitive species 

tested, is used for reasonable potential determinations: 

c. Estimating the toxicity values for the 

missing endpoint using a default acutechronic 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 


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Pt. 132, App. F 40 CFR Ch. I (7–1–15 Edition) 

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. 


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Environmental Protection Agency Pt. 132, App. F 

TABLE F6–1—REASONABLE POTENTIAL

MULTIPLYING FACTORS: 95% CONFIDENCE LEVEL AND 95% PROBABILITY BASIS

Number of Samples 

Coefficient of variation 

0.1 0.2 0.3 0.4 0.5 0.6 0.7 0.8 0.9 1.0 1.1 1.2 1.3 1.4 1.5 1.6 1.7 1.8 1.9 2.0 

1 ............................................................ 1.4 1.9 2.6 3.6 4.7 6.2 8.0 10.1 12.6 15.5 18.7 22.3 26.4 30.8 35.6 40.7 46.2 52.1 58.4 64.9 2 ............................................................ 1.3 1.6 2.0 2.5 3.1 3.8 4.6 5.4 6.4 7.4 8.5 9.7 10.9 12.2 13.6 15.0 16.4 17.9 19.5 21.1 3 ............................................................ 1.2 1.5 1.8 2.1 2.5 3.0 3.5 4.0 4.6 5.2 5.8 6.5 7.2 7.9 8.6 9.3 10.0 10.8 11.5 12.3 4 ............................................................ 1.2 1.4 1.7 1.9 2.2 2.6 2.9 3.3 3.7 4.2 4.6 5.0 5.5 6.0 6.4 6.9 7.4 7.8 8.3 8.8 5 ............................................................ 1.2 1.4 1.6 1.8 2.1 2.3 2.6 2.9 3.2 3.6 3.9 4.2 4.5 4.9 5.2 5.6 5.9 6.2 6.6 6.9 6 ............................................................ 1.1 1.3 1.5 1.7 1.9 2.1 2.4 2.6 2.9 3.1 3.4 3.7 3.9 4.2 4.5 4.7 5.0 5.2 5.5 5.7 7 ............................................................ 1.1 1.3 1.4 1.6 1.8 2.0 2.2 2.4 2.6 2.8 3.1 3.3 3.5 3.7 3.9 4.1 4.3 4.5 4.7 4.9 8 ............................................................ 1.1 1.3 1.4 1.6 1.7 1.9 2.1 2.3 2.4 2.6 2.8 3.0 3.2 3.3 3.5 3.7 3.9 4.0 4.2 4.3 9 ............................................................ 1.1 1.2 1.4 1.5 1.7 1.8 2.0 2.1 2.3 2.4 2.6 2.8 2.9 3.1 3.2 3.4 3.5 3.6 3.8 3.9 10 .......................................................... 1.1 1.2 1.3 1.5 1.6 1.7 1.9 2.0 2.2 2.3 2.4 2.6 2.7 2.8 3.0 3.1 3.2 3.3 3.4 3.6 11 .......................................................... 1.1 1.2 1.3 1.4 1.6 1.7 1.8 1.9 2.1 2.2 2.3 2.4 2.5 2.7 2.8 2.9 3.0 3.1 3.2 3.3 12 .......................................................... 1.1 1.2 1.3 1.4 1.5 1.6 1.7 1.9 2.0 2.1 2.2 2.3 2.4 2.5 2.6 2.7 2.8 2.9 3.0 3.0 13 .......................................................... 1.1 1.2 1.3 1.4 1.5 1.6 1.7 1.8 1.9 2.0 2.1 2.2 2.3 2.4 2.5 2.5 2.6 2.7 2.8 2.9 14 .......................................................... 1.1 1.2 1.3 1.4 1.4 1.5 1.6 1.7 1.8 1.9 2.0 2.1 2.2 2.3 2.3 2.4 2.5 2.6 2.6 2.7 15 .......................................................... 1.1 1.2 1.2 1.3 1.4 1.5 1.6 1.7 1.8 1.8 1.9 2.0 2.1 2.2 2.2 2.3 2.4 2.4 2.5 2.5 16 .......................................................... 1.1 1.1 1.2 1.3 1.4 1.5 1.6 1.6 1.7 1.8 1.9 1.9 2.0 2.1 2.1 2.2 2.3 2.3 2.4 2.4 17 .......................................................... 1.1 1.1 1.2 1.3 1.4 1.4 1.5 1.6 1.7 1.7 1.8 1.9 1.9 2.0 2.0 2.1 2.2 2.2 2.3 2.3 18 .......................................................... 1.1 1.1 1.2 1.3 1.3 1.4 1.5 1.6 1.6 1.7 1.7 1.8 1.9 1.9 2.0 2.0 2.1 2.1 2.2 2.2 19 .......................................................... 1.1 1.1 1.2 1.3 1.3 1.4 1.5 1.5 1.6 1.6 1.7 1.8 1.8 1.9 1.9 2.0 2.0 2.0 2.1 2.1 20 .......................................................... 1.1 1.1 1.2 1.2 1.3 1.4 1.4 1.5 1.5 1.6 1.6 1.7 1.7 1.8 1.8 1.9 1.9 2.0 2.0 2.0 30 .......................................................... 1.0 1.1 1.1 1.1 1.2 1.2 1.2 1.3 1.3 1.3 1.3 1.4 1.4 1.4 1.4 1.5 1.5 1.5 1.5 1.5 40 .......................................................... 1.0 1.0 1.1 1.1 1.1 1.1 1.1 1.1 1.2 1.2 1.2 1.2 1.2 1.2 1.2 1.2 1.2 1.2 1.3 1.3 50 .......................................................... 1.0 1.0 1.0 1.0 1.0 1.0 1.0 1.1 1.1 1.1 1.1 1.1 1.1 1.1 1.1 1.1 1.1 1.1 1.1 1.1 60 .......................................................... 1.0 1.0 1.0 1.0 1.0 1.0 1.0 1.0 1.0 1.0 1.0 1.0 1.0 1.0 1.0 1.0 1.0 1.0 1.0 1.0 70 .......................................................... 1.0 1.0 1.0 1.0 1.0 0.9 0.9 0.9 0.9 0.9 0.9 0.9 0.9 0.9 0.9 0.9 0.9 0.9 0.9 0.9 80 .......................................................... 1.0 1.0 1.0 0.9 0.9 0.9 0.9 0.9 0.9 0.9 0.9 0.9 0.9 0.9 0.8 0.8 0.8 0.8 0.8 0.8 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 


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Pt. 132, App. F 40 CFR Ch. I (7–1–15 Edition) 

PROCEDURE 7: LOADING LIMITS

The Great Lakes States and Tribes shall 

adopt provisions consistent with (as protective as) this procedure. 

Whenever a water quality-based effluent 

limitation (WQBEL) is developed, the 

WQBEL shall be expressed as both a concentration value and a corresponding mass 

loading rate. 

A. Both mass and concentration limits 

shall be based on the same permit averaging 

periods such as daily, weekly, or monthly 

averages, or in other appropriate permit 

averaging periods. 

B. The mass loading rates shall be calculated using effluent flow rates that are 

consistent with those used in establishing 

the WQBELs expressed in concentration. 

PROCEDURE 8: WATER QUALITY-BASED EFFLUENT LIMITATIONS BELOW THE QUANTIFICATION LEVEL

The Great Lakes States and Tribes shall 

adopt provisions consistent with (as protective as) this procedure. 

When a water quality-based effluent limitation (WQBEL) for a pollutant is calculated 

to be less than the quantification level: 

A. Permit Limits. The permitting authority 

shall designate as the limit in the NPDES 

permit the WQBEL exactly as calculated. 

B. Analytical Method and Quantification 

Level. 

1. The permitting authority shall specify 

in the permit the most sensitive, applicable, 

analytical method, specified in or approved 

under 40 CFR part 136, or other appropriate 

method if one is not available under 40 CFR 

part 136, to be used to monitor for the presence and amount in an effluent of the pollutant for which the WQBEL is established; and 

shall specify in accordance with section B.2 

of this procedure, the quantification level 

that can be achieved by use of the specified 

analytical method. 

2. The quantification level shall be the 

minimum level (ML) specified in or approved 

under 40 CFR part 136 for the method for 

that pollutant. If no such ML exists, or if the 

method is not specified or approved under 40 

CFR part 136, the quantification level shall 

be the lowest quantifiable level practicable. 

The permitting authority may specify a 

higher quantification level if the permittee 

demonstrates that a higher quantification 

level is appropriate because of effluent-specific matrix interference. 

3. The permit shall state that, for the purpose of compliance assessment, the analytical method specified in the permit shall be 

used to monitor the amount of pollutant in 

an effluent down to the quantification level, 

provided that the analyst has complied with 

the specified quality assurance/quality control procedures in the relevant method. 

4. The permitting authority shall use applicable State and Tribal procedures to average and account for monitoring data. The 

permitting authority may specify in the permit the value to be used to interpret sample 

values below the quantification level. 

C. Special Conditions. The permit shall contain a reopener clause authorizing modification or revocation and reissuance of the permit if new information generated as a result 

of special conditions included in the permit 

indicates that presence of the pollutant in 

the discharge at levels above the WQBEL. 

Special conditions that may be included in 

the permit include, but are not limited to, 

fish tissue sampling, whole effluent toxicity 

(WET) tests, limits and/or monitoring requirements on internal waste streams, and 

monitoring for surrogate parameters. Data 

generated as a result of special conditions 

can be used to reopen the permit to establish 

more stringent effluent limits or conditions, 

if necessary. 

D. Pollutant Minimization Program. The permitting authority shall include a condition 

in the permit requiring the permittee to develop and conduct a pollutant minimization 

program for each pollutant with a WQBEL 

below the quantification level. The goal of 

the pollutant minimization program shall be 

to maintain the effluent at or below the 

WQBEL. In addition, States and Tribes may 

consider cost-effectiveness when evaluating 

the requirements of a PMP. The pollutant 

minimization program shall include, but is 

not limited to, the following: 

1. An annual review and semi-annual monitoring of potential sources of the pollutant, 

which may include fish tissue monitoring 

and other bio-uptake sampling; 

2. Quarterly monitoring for the pollutant 

in the influent to the wastewater treatment 

system; 

3. Submittal of a control strategy designed 

to proceed toward the goal of maintaining 

the effluent below the WQBEL; 

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. 


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Environmental Protection Agency Pt. 133 

PROCEDURE 9: COMPLIANCE SCHEDULES

The Great Lakes States and Tribes shall 

adopt provisions consistent with (as protective as) procedure 9 of appendix F of part 132. 

A. Limitations for New Great Lakes Dischargers. When a permit issued on or after 

March 23, 1997 to a new Great Lakes discharger (defined in Part 132.2) contains a 

water quality-based effluent limitation 

(WQBEL), the permittee shall comply with 

such a limitation upon the commencement 

of the discharge. 

B. Limitations for Existing Great Lakes Dischargers. 

1. Any existing permit that is reissued or 

modified on or after March 23, 1997 to contain a new or more restrictive WQBEL may 

allow a reasonable period of time, up to five 

years from the date of permit issuance or 

modification, for the permittee to comply 

with that limit, provided that the Tier I criterion or whole effluent toxicity (WET) criterion was adopted (or, in the case of a narrative criterion, Tier II value, or Tier I criterion derived pursuant to the methodology 

in appendix A of part 132, was newly derived) 

after July 1, 1977. 

2. When the compliance schedule established under paragraph 1 goes beyond the 

term of the permit, an interim permit limit 

effective upon the expiration date shall be 

included in the permit and addressed in the 

permit’s fact sheet or statement of basis. 

The administrative record for the permit 

shall reflect the final limit and its compliance date. 

3. If a permit establishes a schedule of 

compliance under paragraph 1 which exceeds 

one year from the date of permit issuance or 

modification, the schedule shall set forth interim requirements and dates for their 

achievement. The time between such interim 

dates may not exceed one year. If the time 

necessary for completion of any interim requirement is more than one year and is not 

readily divisible into stages for completion, 

the permit shall require, at a minimum, 

specified dates for annual submission of 

progress reports on the status of any interim 

requirements. 

C. Delayed Effectiveness of Tier II Limitations 

for Existing Great Lakes Discharges. 

1. Whenever a limit (calculated in accordance with Procedure 3) based upon a Tier II 

value is included in a reissued or modified 

permit for an existing Great Lakes discharger, the permit may provide a reasonable period of time, up to two years, in which 

to provide additional studies necessary to develop a Tier I criterion or to modify the Tier 

II value. In such cases, the permit shall require compliance with the Tier II limitation 

within a reasonable period of time, no later 

than five years after permit issuance or 

modification, and contain a reopener clause. 

2. The reopener clause shall authorize permit modifications if specified studies have 

been completed by the permittee or provided 

by a third-party during the time allowed to 

conduct the specified studies, and the permittee or a third-party demonstrates, 

through such studies, that a revised limit is 

appropriate. Such a revised limit shall be incorporated through a permit modification 

and a reasonable time period, up to five 

years, shall be allowed for compliance. If incorporated prior to the compliance date of 

the original Tier II limitation, any such revised limit shall not be considered less-stringent for purposes of the anti-backsliding provisions of section 402(o) of the Clean Water 

Act. 

3. If the specified studies have been completed and do not demonstrate that a revised 

limit is appropriate, the permitting authority may provide a reasonable additional period of time, not to exceed five years with 

which to achieve compliance with the original effluent limitation. 

4. Where a permit is modified to include 

new or more stringent limitations, on a date 

within five years of the permit expiration 

date, such compliance schedules may extend 

beyond the term of a permit consistent with 

section B.2 of this procedure. 

5. If future studies (other than those conducted under paragraphs 1, 2, or 3 above) result in a Tier II value being changed to a less 

stringent Tier II value or Tier I criterion, 

after the effective date of a Tier II-based 

limit, the existing Tier II-based limit may be 

revised to be less stringent if: 

(a) It complies with sections 402(o) (2) and 

(3) of the CWA; or, 

(b) In non-attainment waters, where the 

existing Tier II limit was based on procedure 

3, the cumulative effect of revised effluent 

limitation based on procedure 3 of this appendix will assure compliance with water 

quality standards; or, 

(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 

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 


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§ 133.100 40 CFR Ch. I (7–1–15 Edition) 

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. 

§ 133.100 Purpose. 

This part provides information on 

the level of effluent quality attainable 

through the application of secondary 

or equivalent treatment. 

§ 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 (§133.105), if: 

(1) The BOD5 and SS effluent concentrations consistently achievable 

through proper operation and maintenance (§133.101(f)) of the treatment 

works exceed the minimum level of the 

effluent quality set forth in §§133.102(a) 

and 133.102(b), 

(2) A trickling filter or waste stabilization pond is used as the principal 

process, and 

(3) The treatment works provide significant biological treatment of municipal wastewater. 

(h) mg/l. Milligrams per liter. 

(i) NPDES. National Pollutant Discharge Elimination System. 

(j) Percent removal. A percentage expression of the removal efficiency 

across a treatment plant for a given 

pollutant parameter, as determined 

from the 30-day average values of the 

raw wastewater influent pollutant concentrations to the facility and the 30- 

day average values of the effluent pollutant concentrations for a given time 

period. 

(k) Significant biological treatment. 

The use of an aerobic or anaerobic biological treatment process in a treatment works to consistently achieve a 

30-day average of a least 65 percent removal of BOD5. 

(l) SS. The pollutant parameter total 

suspended solids. 

(m) Significantly more stringent limitation means BOD5 and SS limitations 

necessary to meet the percent removal 

requirements of at least 5 mg/l more 

stringent than the otherwise applicable 

concentration-based limitations (e.g., 

less than 25 mg/l in the case of the secondary treatment limits for BOD5 and 

SS), or the percent removal limitations 

in §§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] 

§ 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 


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Environmental Protection Agency § 133.103 

pH. All requirements for each parameter shall be achieved except as provided for in §§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] 

§ 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 

§§133.102(a)(3) and 133.102(b)(3), or 

§§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 

§§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 §§133.102(a)(1), 133.102(a)(4)(i), 

133.102(b)(1), 133.105(a)(1), 133.105(b)(1), 

and 133.105(e)(1)(i) may be adjusted upwards provided that: (1) The permitted 

discharge of such pollutants, attributable to the industrial category, 

would not be greater than that which 

would be permitted under sections 

301(b)(1)(A)(i), 301(b)(2)(E) or 306 of the 

Act if such industrial category were to 

discharge directly into the navigable 

waters, and (2) the flow or loading of 

such pollutants introduced by the industrial category exceeds 10 percent of 

the design flow or loading of the publicly owned treatment works. When 

such an adjustment is made, the values 

for BOD5 or SS in §§133.102(a)(2), 

133.102(a)(4)(ii), §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 §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 

§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 


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§ 133.104 40 CFR Ch. I (7–1–15 Edition) 

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 

§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 §§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 

§§133.102(a)(3), 133.102(a)(4)(iii), 

133.102(b)(3), 133.105(a)(3), 133.105(b)(3) 

and 133.105(e)(1)(iii) provided that the 

permittee satisfactorily demonstrates 

that: (1) The treatment works is consistently meeting, or will consistently 

meet, its permit effluent concentration 

limits, but the percent removal requirements cannot be met due to less 

concentrated influent wastewater; (2) 

to meet the percent removal requirements, the treatment works would 

have to achieve significantly more 

stringent effluent concentrations than 

would otherwise be required by the 

concentration-based standards; and (3) 

the less concentrated influent wastewater does not result from either excessive infiltration or clear water industrial discharges during dry weather 

periods. The determination of whether 

the less concentrated wastewater results from excessive infiltration is discussed in 40 CFR 35.2005(b)(28), plus the 

additional criterion that either 40 gallons per capita per day (gpcd) or 1500 

gallons per inch diameter per mile of 

sewer (gpdim) may be used as the 

threshold value for that portion of the 

dry weather base flow attributed to infiltration. If the less concentrated influent wastewater is the result of clear 

water industrial discharges, then the 

treatment works must control such 

discharges pursuant to 40 CFR part 403. 

[49 FR 37006, Sept. 20, 1984, as amended at 50 

FR 23387, June 3, 1985; 50 FR 36880, Sept. 10, 

1985; 54 FR 4228, Jan. 27, 1989] 

§ 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. 

§ 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 

(§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 §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. 


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Environmental Protection Agency Pt. 135 

(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 

§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 

§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 

(§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 (§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 §§133.105(a)(1), 

133.105(a)(2) and 133.105(a)(3), on a caseby-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 

§133.105(a)–(e). Furthermore, permitting authorities shall require more 

stringent limitations when adjusting 

permits if: (1) For existing facilities 

the permitting authority determines 

that the 30-day average and 7-day average BOD5 and SS effluent values that 

could be achievable through proper operation and maintenance of the treatment works, based on an analysis of 

the past performance of the treatment 

works, would enable the treatment 

works to achieve more stringent limitations, or 

(2) For new facilities, the permitting 

authority determines that the 30-day 

average and 7-day average BOD5 and SS 

effluent values that could be achievable through proper operation and 

maintenance of the treatment works, 

considering the design capability of the 

treatment process and geographical 

and climatic conditions, would enable 

the treatment works to achieve more 

stringent limitations. 

[49 FR 37006, Sept. 20, 1984; 49 FR 40405, Oct. 

16, 1984] 

PART 135—PRIOR NOTICE OF 

CITIZEN SUITS 

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). 


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§ 135.1 40 CFR Ch. I (7–1–15 Edition) 

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 

§ 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] 

§ 135.2 Service of notice. 

(a) Notice of intent to file suit pursuant to section 505(a)(1) of the Act shall 

be served upon an alleged violator of an 

effluent standard or limitation under 

the Act, or an order issued by the Administrator or a State with respect to 

such a standard or limitation, in the 

following manner: 

(1) If the alleged violator is an individual or corporation, service of notice 

shall be accomplished by certified mail 

addressed to, or by personal service 

upon, the owner or managing agent of 

the building, plant, installation, vessel, 

facility, or activity alleged to be in 

violation. A copy of the notice shall be 

mailed to the Administrator of the Environmental Protection Agency, the 

Regional Administrator of the Environmental Protection Agency for the 

region in which such violation is alleged to have occurred, and the chief 

administrative officer of the water pollution control agency for the State in 

which the violation is alleged to have 

occurred. If the alleged violator is a 

corporation, a copy of such notice also 

shall be mailed to the registered agent, 

if any, of such corporation in the State 

in which such violation is alleged to 

have occurred. 

(2) If the alleged violator is a State 

or local agency, service of notice shall 

be accomplished by certified mail addressed to, or by personal service upon, 

the head of such agency. A copy of such 

notice shall be mailed to the chief administrative officer of the water pollution control agency for the State in 

which the violation is alleged to have 

occurred, the Administrator of the Environmental Protection Agency, and 

the Regional Administrator of the Environmental Protection Agency for the 

region in which such violation is alleged to have occurred. 

(3) If the alleged violator is a Federal 

agency, service of notice shall be accomplished by certified mail addressed 

to, or by personal service upon, the 

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 


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Environmental Protection Agency § 135.5 

deemed to have been served on the 

postmark date if mailed, or on the date 

of receipt if served personally. 

§ 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. 

§ 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] 

§ 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 


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604 

§ 135.10 40 CFR Ch. I (7–1–15 Edition) 

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. 

§ 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). 

§ 135.11 Service of notice. 

(a) Notice of intent to file suit pursuant to section 1449(a)(1) of the Act shall 

be served in the following manner upon 

an alleged violator of any requirement 

prescribed by or under the Act: 

(1) If the alleged violator is an individual or corporation, service of notice 

shall be accomplished by certified 

mail, return receipt requested, addressed to, or by personal service upon, 

such individual or corporation. If a 

public water system or underground injection well is alleged to be in violation, service shall be upon the owner or 

operator. A copy of the notice shall be 

sent by certified mail, return receipt 

requested, to the Administrator of the 

Environmental Protection Agency, the 

Regional Administrator of the Environmental Protection Agency for the 

region in which such violation is alleged to have occurred, the chief administrative officer of the responsible 

state agency (if any), and the Attorney 

General for the State in which the violation is alleged to have occurred. If 

the alleged violator is a corporation, a 

copy of the notice shall also be sent by 

certified mail, return receipt requested, to the registered agent (if any) 

of the corporation in the State in 

which the violation is alleged to have 

occurred. 

(2) If the alleged violator is a State 

or local agency, service of notice shall 

be accomplished by certified mail, return receipt requested, addressed to, or 

by personal service upon, the head of 

such agency. A copy of the notice shall 

be sent by certified mail, return receipt requested, to the Administrator 

of the Environmental Protection Agency, the Regional Administrator of the 

Environmental Protection Agency for 

the region in which the violation is alleged to have occurred, the chief administrative officer of the responsible 

state agency (if any), and the Attorney 

General for the State in which the violation is alleged to have occurred. 

(3) If the alleged violator is a Federal 

agency, service of notice shall be accomplished by certified mail, return receipt requested, addressed to, or by 

personal service upon, the head of the 

Federal agency. A copy of the notice 

shall be sent by certified mail, return 

receipt requested, to the Administrator 

of the Environmental Protection Agency, the Regional Administrator of the 

Environmental Protection Agency for 

the region in which the violation is alleged to have occurred, the Attorney 

General of the United States, the chief 

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 


Lhorne on DSK5TPTVN1PROD with CFR
605 

Environmental Protection Agency § 135.13 

mail, the date of receipt will be considered to be the date noted on the return 

receipt card. 

§ 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. 

§ 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. 


Lhorne on DSK5TPTVN1PROD with CFR