### 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.

A UTHORITY : 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).

S OURCE : 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, andany 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 ChiefAdministrative 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 proposedeffluent 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 standardmay 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 thepublication 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 precedingsentence, which good cause must include at a minimum lack of actual notice on the part of the objector or any


### 6 40 CFR Ch. I (7–1–15 Edition) § 104.4

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 withthe hearing clerk within the time prescribed in paragraph (a) of this section;

(2) It shall state concisely and withparticularity 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 itshall (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 suchproposed 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 PresidingOfficer shall promptly notify any person whose objection is not accepted forany 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 objectingparty 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 ofsuch 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 40days 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 intoaccount 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 ofbasis 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 F ED

ERAL R EGISTER 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 andstudies 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


### 7 Environmental Protection Agency § 104.8

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 totherein, 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 tocover 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 thehearing. In the event of the unavailability of any such Administrative LawJudge, the Administrator may designate a Presiding Officer. No personwho has any personal pecuniary interest in the outcome of a proceedingunder this part, or who has participated in the development or enforcement of any standard or proposedstandard 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 withinthe time constraints imposed by section 307(a) of the Act. He shall take all necessary action to avoid delay and tomaintain 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 schedulingof 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 anyparty 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 theconference 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 wherepracticable, and limitation of the number of witnesses where appropriate in order to avoid delay or repetition;

(6) If desirable, the segregation of thehearing 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 leadcounsel 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 agreementsreached by the parties or representatives, the schedule of witnesses, and a statement of issues for the hearing. Inaddition 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 ofeach and, in the case of an expert witness, his curriculum vitae, and may contain such other directions as may


### 8 40 CFR Ch. I (7–1–15 Edition) § 104.9

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 useof 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 awitness by the time required. The Presiding Officer may require direct testimony to be in writing under oath andserved by a certain date, and may exclude testimony not so served.

(b) At the first prehearing conference, or at another time before thebeginning of the taking of oral testimony to be set by the Presiding Officer, the statement of basis and purpose, together with any publications orreference materials cited therein, except where excluded by stipulation,
shall be received in evidence.

(c) The Presiding Officer may excludeevidence which is immaterial, irrelevant, unduly repetitious or cumulative, or would involve undue delay, or which, if hearsay, is not of the sortupon 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 oraltestimony 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 notlimited to affidavits, published articles, and official documents, regardlessof 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) ofthis section. The availability or nonavailability of cross-examination shall be considered as affecting the weight tobe accorded such evidence in any decision based upon the record.

(g) Official notice may be taken bythe 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. Opposingparties 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 supportof its objection and any proposed modification. The Agency staff shall then begiven 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 setforth in the Agency’s own initially proposed standards. In the event that evidence which tends to support such
other standard or standards is offeredand 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 limitationsset forth in the Act, the Presiding Officer may limit the number of witnesseswho may testify, and the scope and extent of cross-examination.


### 9 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 Officerduring 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 andconclusions. In establishing the aforesaid time schedule, the Presiding Officer shall consider the time constraintsplaced 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 ofhis 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 theAdministrator where a party so requests and the Presiding Officer concludes that (1) the ruling from which review is sought involves an importantquestion 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 isnot 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 inparagraph (a) of this section. An application for review shall be in writingand 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 anyruling 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 filedby 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 Administratorfor post-hearing review of any procedural ruling, or any ruling made by thePresiding 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 reviewunder paragraph (e) of this section determines that evidence was improperly excluded, he may order its admission


### 10 40 CFR Ch. I (7–1–15 Edition) § 104.14

without remand for further proceedings, or may remand with such instructions as he deems appropriateconcerning 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 timerestraints permit a remand, and whether it would be constructive to allow
cross-examination or further evidencewith 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 bythe 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 thefiling 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 thehearing, 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 appropriatereferences 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 ofwhich 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, includingcompliance 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 betransmitted 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 isjustified, he shall promulgate a standard or standards as so modified.

§ 104.16 Filing and time.

(a) All documents or papers requiredor authorized by the foregoing provisions of this part including, but not limited to, motions, applications forreview, 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


### 11 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, withthe 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 bemodified 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 anattorney or other authorized representative. When any document or paper is required under these rules to be served upon a party such service shall bemade 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 partshall 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 shallbe 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.

G ENERAL

105.1 Background.
105.2 Definitions.
105.3 Title.

E LIGIBILITY R EQUIREMENTS

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?

A PPLICATION AND N OMINATION P ROCESS

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? S ELECTION C RITERIA

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?

A WARDS R ECOGNITION

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

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

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

G ENERAL

§ 105.1 Background.

The Environmental Protection Agency’s (EPA) Clean Water Act (CWA) Recognition Awards Program is authorizedby CWA section 501(e). The Administrator may provide official recognitionto industrial organizations and political subdivisions of States which during the preceding year demonstratedan 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 abatementprograms. 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


### 12 40 CFR Ch. I (7–1–15 Edition) § 105.3

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, orother public body (including an intermunicipal agency of two or more of theforegoing entities) created by or pursuant to State law.

State means any of the 50 States, theDistrict 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 bythe Governing Authority having responsibility for enforcing State lawsrelating 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 RecognitionAwards (hereinafter, the Awards Program).

E LIGIBILITY R EQUIREMENTS

§ 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 toState law; a company, corporation, association, partnership, firm, university, not-for-profit organization, or wastewater treatment facility, as wellas a Federal, State or Tribal government wastewater treatment facility, or U.S. military command to the extentsuch 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 Programcategories for which I may be eligible?

EPA will publish from time to time,
a notice in the F EDERAL R EGISTER announcing the current Awards Program categories. EPA also may subsequentlydiscontinue, combine, or rename categories by notice published in the F ED

ERAL R EGISTER

.

A PPLICATION AND N OMINATION P ROCESS

§ 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 mayuse an application or nomination process, as appropriate for the program or Region.


### 13 Environmental Protection Agency § 105.16

§ 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 ornominations recommended by EPA Regions are considered for the nationalaward. EPA personnel conduct compliance evaluations prior to presenting a
national award.

S ELECTION C RITERIA

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

Your facility or pollution abatement program must be in total compliancewith 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 asevidence of an outstanding technological achievement or an innovativeprocess, 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 evaluatedby a review committee. After the review committee completes its evaluation of the programs that have beennominated, 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 placewinners for a national award in the appropriate awards categories. A secondplace winner may or may not be selected. EPA may or may not select anaward winner for every awards program category. Award decisions are not subject to administrative review.

A WARDS R ECOGNITION

§ 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 anawards presentation ceremony as recognition for an outstanding technological achievement or an innovativeprocess, method or device in wastewater treatment and/or pollution abatement programs. The President of the United States, the Governor of theState, 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 nationalrecognition award winners through notice published in the F EDERAL R EG

ISTER

.


### 14 40 CFR Ch. I (7–1–15 Edition) Pt. 108



### 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.

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

S OURCE : 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 theAct; any standard of performance established under section 306 of the Act; and any effluent limitation establishedunder 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, orcondition 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 anysuch employee, and the Regional Administrator or his designee.

(e) Administrator or Regional Administrator means the Administrator or aRegional 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 thealleged 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 meetingthe requirements of §108.3, the Regional Administrator shall conduct a full investigation of the matter, in order to determine whether the requestmay be related to an effluent limitation or order under the Act. Followingthe investigation, the Regional Administrator shall notify the employee requesting the investigation (or the employee’s representative) and the employer of such employee, in writing, ofhis preliminary findings and conclusions. The employee, the representative of such employee, or the employermay within fifteen days following receipt of the preliminary findings andconclusions 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 30days following the date of such publication where he determines that thereare factual issues concerning the existence of the alleged discrimination orits 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 thispart 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. Byagreement of the parties, he may dismiss the hearing. The Administrative


### 15 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, mayappear 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 suchtentative findings and recommendations to the Administrator. The Administrator shall adopt or modify the findings and recommendations of the Administrative Law Judge, and shallmake 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 mayexercise 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.

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

S OURCE : 36 FR 22485, Nov. 25, 1971, unless
otherwise noted. § 109.1 Applicability.

The criteria in this part are provided to assist State, local and regionalagencies 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 beagreed 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 otheractions 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 towarrant disaster assistance by the Federal Government to supplement the efforts and available resources of Statesand local governments and relief organizations in alleviating the damage, loss, hardship, or suffering caused thereby.


### 16 40 CFR Ch. I (7–1–15 Edition) § 109.3

(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 byState and local governments in consultation with private interests to insure timely, efficient, coordinated and effective action to minimize damage resulting from oil discharges. Suchplans 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 sothat contingency organizations established thereunder can function independently, in conjunction with eachother, 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-scenecommander shall investigate all reported spills. If such investigation shows that appropriate action is beingtaken by either the discharger or nonFederal entities, the Federal on-scene commander shall monitor and provideadvice 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 takecontrol 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 inplanning or directing oil removal operations, with particular care to clearly define the authorities, responsibilitiesand duties of State and local governmental agencies to avoid unnecessary duplication of contingency planningactivities and to minimize the potential for conflict and confusion that could be generated in an emergencysituation 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 criticalwater use areas to facilitate the reporting of and response to oil discharges.

(2) A current list of names, telephonenumbers and addresses of the responsible persons and alternates on call to receive notification of an oil dischargeas 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 reliablecommunications 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 becommitted during an oil discharge situation including:


### 17 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 andarrangements 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 andspecific actions to be taken after discovery and notification of an oil discharge including:

(1) Specification of an oil discharge response operating team consisting oftrained, prepared and available operating personnel.

(2) Predesignation of a properlyqualified 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 ofresponse 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 thanone 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 providedfor 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 andimplemented 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.

A UTHORITY : 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.

E FFECTIVE D ATE N OTE : 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:

A UTHORITY : 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.

S OURCE : 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 standardsadopted 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 Preventionof Pollution from Ships, 1973, as modified by the Protocol of 1978 relatingthereto, Annex I, which regulates pollution from oil and which entered into force on October 2, 1983;


### 18 40 CFR Ch. I (7–1–15 Edition) § 110.1, Nt.

Navigable waters means the waters ofthe United States, including the territorial seas. The term includes:

(a) All waters that are currently used, were used in the past, or may besusceptible 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 inparagraphs (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 coolingponds 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 purposesof 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, theDistrict 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 orground water at a frequency or duration sufficient to support, and thatunder normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include playa lakes, swamps, marshes, bogsand 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]

E FFECTIVE D ATE N OTE : 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 susceptibleto 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 identifiedin 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


### 19 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 asignificant nexus analysis. If waters identified in this paragraph are also an adjacent water under paragraph (1)(vi), they are anadjacent water and no case-specific significant nexus analysis is required.

(A) Prairie potholes. Prairie potholes are acomplex 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 shruband tree dominated wetlands found predominantly along the Central Atlantic coastal plain.

(D) Western vernal pools. Western vernal pools are seasonal wetlands located in partsof California and associated with topographic depression, soils with poor drainage, mild, wet winters and hot, dry summers.

(E) Texas coastal prairie wetlands. Texascoastal 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 identifiedin paragraphs (1)(i) through (iii) of this definition or within 4,000 feet of the high tide line or ordinary high water mark. Watersidentified in this paragraph shall not be combined with waters identified in paragraph (1)(vi) of this definition when performing asignificant nexus analysis. If waters identified in this paragraph are also an adjacent water under paragraph (1)(vi), they are anadjacent 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 stockwatering 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 dryland 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 donot meet the definition of tributary, nonwetland swales, and lawfully constructed grassed waterways; and

(G) Puddles. (v) Groundwater, including groundwaterdrained 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


### 20 40 CFR Ch. I (7–1–15 Edition) § 110.1, 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)(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 suchwater. 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 theordinary high water mark of a water identified in paragraphs (1)(i) through (v) of this definition. The entire water is neighboring ifa 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 orthrough another water (including an impoundment identified in paragraph (1)(iv) ofthis 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 physicalindicators demonstrate there is volume, frequency, and duration of flow sufficient to create a bed and banks and an ordinary highwater 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) ofthis 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 andan 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 withother 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 effectto 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 asignificant 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 significantnexus when any single function or combination of functions performed by the water, alone or together with similarly situatedwaters in the region, contributes significantly to the chemical, physical, or biological integrity of the nearest water identifiedin 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 inparagraphs (1)(i) through (iii) of this definition.


### 21 Environmental Protection Agency § 110.6

(vi) O rdinary high water mark. The term ordinary high water mark means that line on the shore established by the fluctuations ofwater and indicated by physical characteristics such as a clear, natural line impressedon 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 tideline may be determined, in the absence of actual data, by a line of oil or scum alongshore objects, a more or less continuous deposit of fine shell or debris on the foreshoreor berm, other physical markings or characteristics, vegetation lines, tidal gages, orother 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 tothe 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) ofthe 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 asludge 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 emulsifiersto 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 Administratorhas 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 anengine on a public vessel) and any discharges of such oil accumulated in thebilges 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 permittedunder MARPOL 73/78, Annex I, as provided in 33 CFR part 151, subpart A; and

(c) Any discharge of oil explicitlypermitted by the Administrator in connection with research, demonstrationprojects, 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 anydischarge of oil from such vessel or facility in violation of section 311(b)(3) ofthe 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 Guardor 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 notifythe NRC or the predesignated OCS immediately, reports may be made immediately to the nearest Coast Guard unit, provided that the person incharge of the vessel or onshore or offshore facility notifies the NRC as soon as possible. The reports shall be made


### 22 40 CFR Ch. I (7–1–15 Edition) Pt. 112

in accordance with such procedures as the Secretary of Transportation mayprescribe. 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 andMarine 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.

A PPENDIX A TO P ART 112—M EMORANDUM OF U NDERSTANDING B ETWEEN THE S ECRETARY

OF T RANSPORTATION AND THE A DMINIS

TRATOR OF THE E NVIRONMENTAL P ROTEC

TION A GENCY A PPENDIX B TO P ART 112—M EMORANDUM OF U NDERSTANDING A MONG THE S ECRETARY

OF THE I NTERIOR , S ECRETARY OF T RANS

PORTATION

, AND A DMINISTRATOR OF THE E NVIRONMENTAL P ROTECTION A GENCY A PPENDIX C TO P ART 112—S UBSTANTIAL H ARM C RITERIA A PPENDIX D TO P ART 112—D ETERMINATION OF

A W ORST C ASE D ISCHARGE P LANNING V OL

UME A PPENDIX E TO P ART 112—D ETERMINATION

AND E VALUATION OF R EQUIRED R ESPONSE R ESOURCES FOR F ACILITY R ESPONSE P LANS A PPENDIX F TO P ART 112—F ACILITY -S PECIFIC R ESPONSE P LAN A PPENDIX G TO P ART 112—T IER I Q UALIFIED F ACILITY SPCC P LAN

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

E FFECTIVE D ATE N OTE : 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:

A UTHORITY : 33 U.S.C. 1251 et seq.

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

E DITORIAL N OTE : 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

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


### 23 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 managementauthority 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 andwords 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 toany 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 Actof 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 tonavigable waters or adjoining shorelines, land contour, drainage, etc.) and
must exclude consideration of manmade features such as dikes, equipment or other structures, which may serveto restrain, hinder, contain, or otherwise prevent a discharge as described in paragraph (b) of this section.

(ii) Any equipment, or operation of avessel 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 Administratorof 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. Departmentof the Interior, as defined in the Memorandum of Understanding between theSecretary 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 ofEPA, meets both of the following requirements:


### 24 40 CFR Ch. I (7–1–15 Edition) § 112.1

(i) The completely buried storage capacity of the facility is 42,000 U.S. gallons or less of oil. For purposes of thisexemption, 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 technicalrequirements 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 dieselgenerators 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 buriedstorage 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-facilitygathering 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 greaterare 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 forheating 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 storagetank, as defined in §112.2, and connected underground piping, underground ancillary equipment, and containment systems, at any facility, thatis subject to all of the technical requirements of part 280 of this chapter or a State program approved underpart 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 powergeneration facility licensed by the Nuclear Regulatory Commission, providedthat 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 treatmentand 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.


### 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 SPCCPlan is to form a comprehensive Federal/State spill prevention programthat 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) ofthis 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, orapplicable 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 theneed 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 theneed 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 thefinal determination to the owner or operator by certified mail or by personal delivery. If the owner or operator is acorporation, the Regional Administrator must also mail a copy of the final determination to the registeredagent, 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 anSPCC 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 appeala 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 ofthe 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 thecase. In the appeal, the owner or operator may also provide additional information. The additional informationmay 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


### 26 40 CFR Ch. I (7–1–15 Edition) § 112.2

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 aresponse plan for the applicable operating environment. Factors to consider include significant wave height as specified in appendix E to this part (asappropriate), 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 usedto 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 anaboveground 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-relatedand 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 facilityowner 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 equipmentto respond to a discharge within appropriate response times in the specified geographic area; and/or

(4) Any other specific arrangementapproved 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 incompliance 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 insuch permit; or continuous or anticipated intermittent discharges from a


### 27 Environmental Protection Agency § 112.2

point source, identified in a permit or permit application under section 402 ofthe 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 inoil 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 inappendix 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 activityat 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 forendangered 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 theviability 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 fixedstructure (such as a platform, gangway) necessary for loading or unloading a tank truck or tank car, which islocated 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 meanswithin 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 aworst case discharge in adverse weather, as contained in a response plan that meets the requirements in §112.20 or ina 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 orfrom 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 amotor vehicle, or ancillary onboard oilfilled operational equipment. An onboard bulk storage container which is
used to store or transfer oil for furtherdistribution is not a motive power container. The definition of motive power


### 28 40 CFR Ch. I (7–1–15 Edition) § 112.2

container does not include oil drilling or workover equipment, including rigs.

Navigable waters of the United States means ‘‘navigable waters’’ as defined insection 502(7) of the FWPCA, and includes:

(1) All navigable waters of the United States, as defined in judicial decisionsprior 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, andstreams 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 anykind that is not petroleum-based, including but not limited to: Fats, oils, and greases of animal, fish, or marinemammal 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) inwhich the oil is present solely to support the function of the apparatus orthe device. Oil-filled operational equipment is not considered a bulk storagecontainer, and does not include oilfilled manufacturing equipment (flowthrough process). Examples of oil-filled operational equipment include, but arenot limited to, hydraulic systems, lubricating systems ( e.g. , those for pumps, compressors and other rotating equipment, including pumpjack lubrication systems), gear boxes, machiningcoolant systems, heat transfer systems, transformers, circuit breakers, electrical switches, and other systemscontaining oil solely to enable the operation of the device.

Oil Spill Removal Organization meansan 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 ageographic 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, theperson who owned or operated or maintained the facility immediately prior
to such abandonment.

Partially buried tank means a storage container that is partially inserted orconstructed in the ground, but not entirely below grade, and not completelycovered 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 conspicuoussigns 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


### 29 Environmental Protection Agency § 112.2, Nt.

water after initial oil/water separation, and prior to reinjection, beneficialreuse, 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 notlimited 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, orequipment are subject to a specific section of this part.

Regional Administrator means the Regional Administrator of the Environmental Protection Agency, in and forthe 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 maintainthe 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 thatdetails 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 Understandingbetween 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, theDistrict 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 derivedfrom 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 typicallyadapted 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 facilitymeans 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]

E FFECTIVE D ATE N OTE : 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 susceptibleto 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;


### 30 40 CFR Ch. I (7–1–15 Edition) § 112.2, Nt.

(v) All tributaries, as defined in paragraph (3)(iii) of this definition, of waters identifiedin 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 inparagraphs (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 acomplex 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 shruband tree dominated wetlands found predominantly along the Central Atlantic coastal plain.

(D) Western vernal pools. Western vernal pools are seasonal wetlands located in partsof California and associated with topographic depression, soils with poor drainage, mild, wet winters and hot, dry summers.

(E) Texas coastal prairie wetlands. Texascoastal 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 identifiedin paragraphs (1)(i) through (iii) of this definition or within 4,000 feet of the high tide line or ordinary high water mark. Watersidentified in this paragraph shall not be combined with waters identified in paragraph (1)(vi) of this definition when performing asignificant nexus analysis. If waters identified in this paragraph are also an adjacent water under paragraph (1)(vi), they are anadjacent 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 stockwatering 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 dryland 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 donot meet the definition of tributary, nonwetland swales, and lawfully constructed grassed waterways; and

(G) Puddles. (iii) Groundwater, including groundwaterdrained 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


### 31 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 suchwater. 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 theordinary high water mark of a water identified in paragraphs (1)(i) through (v) of this definition. The entire water is neighboring ifa 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 orthrough another water (including an impoundment identified in paragraph (1)(iv) ofthis 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 physicalindicators demonstrate there is volume, frequency, and duration of flow sufficient to create a bed and banks and an ordinary highwater 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) ofthis 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 andan 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 withother 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 effectto 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 asignificant 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 significantnexus when any single function or combination of functions performed by the water, alone or together with similarly situatedwaters in the region, contributes significantly to the chemical, physical, or biological integrity of the nearest water identifiedin 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 inparagraphs (1)(i) through (iii) of this definition.


### 32 40 CFR Ch. I (7–1–15 Edition) § 112.3

(vi) Ordinary high water mark. The term ordinary high water mark means that line on the shore established by the fluctuations ofwater and indicated by physical characteristics such as a clear, natural line impressedon 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 tideline may be determined, in the absence of actual data, by a line of oil or scum alongshore objects, a more or less continuous deposit of fine shell or debris on the foreshoreor berm, other physical markings or characteristics, vegetation lines, tidal gages, orother 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 andimplement a Spill Prevention, Control, and Countermeasure Plan.

The owner or operator or an onshoreor 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 November10, 2011. If such a facility becomes operational after August 16, 2002, throughNovember 10, 2011, and could reasonably be expected to have a discharge as described in §112.1(b), you must prepareand 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 preparea 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 usingthe discharge prevention practices outlined in the Plan for the facility. ThePlan 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 hasan offshore component; or your onshore facility is required to have andsubmit 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 ensurecompliance with this part, and implement the amended Plan no later thanNovember 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 afacility (excluding oil production facilities) becomes operational after November 10, 2010, and could reasonablybe 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 itusing 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,


### 33 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 May10, 2013. If your farm becomes operational after May 10, 2013, and couldreasonably be expected to have a discharge as described in §112.1(b), youmust prepare and implement a Plan before you begin operations.

(b) If your oil production facility as described in paragraph (a)(1) of thissection 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 engineeringpractice, 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 minimizethe 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 wayrelieve 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 operatorof 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 RegionalAdministrator may authorize an extension of time for the preparation and full implementation of a Plan, or any amendment thereto, beyond the timepermitted 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 complywith 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, youmay 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 theimplementation of any corrective actions being taken or contemplated, including interim dates for completion oftests 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 ofyour obligation to comply with the requirements of this part. The Regional Administrator may request a copy ofyour Plan to evaluate the extension request. When the Regional Administrator authorizes an extension of time


### 34 40 CFR Ch. I (7–1–15 Edition) § 112.4

for particular equipment or other specific aspects of the Plan, such extension does not affect your obligation to comply with the requirements relatedto 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 oroperator 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 onethat 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 forless than three years (other than discharges as described in §112.1(b) that are the result of natural disasters, actsof 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 42U.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 60days 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 reasonablyrequire pertinent to the Plan or discharge.

(b) Take no action under this section until it applies to your facility. Thissection 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 oragencies in charge of oil pollution control activities in the State in which the facility is located a complete copy ofall information you provided to the Regional Administrator under paragraph (a) of this section. Upon receipt of theinformation such State agency or agencies may conduct a review and makerecommendations 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 theinformation you submit under paragraph (a) of this section, or submission of information to EPA by the Stateagency under paragraph (c) of this section, or after on-site review of yourPlan, the Regional Administrator requires that you do so. The Regional


### 35 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 bymail 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 proposedamendment. Within 30 days from receipt of such notice, you may submitwritten information, views, and arguments on the proposed amendment. After considering all relevant material presented, the Regional Administratormust 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 ofthe 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 inthe case. It may also contain additional information from you, or fromany other person. The EPA Administrator may request additional information from you, or from any other person. The EPA Administrator mustrender 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 changein 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 ordecommissioning containers; replacement, reconstruction, or movement ofcontainers; reconstruction, replacement, or installation of piping systems; construction or demolition that mightalter secondary containment structures; changes of product or service; orrevision 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 thetime 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 notlater than six months following preparation of any amendment. You mustdocument your completion of the review and evaluation, and must sign a statement as to whether you willamend the Plan, either at the beginning or end of the Plan or in a log or an appendix to the Plan. The following


### 36 40 CFR Ch. I (7–1–15 Edition) § 112.6

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) aresubject 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), youmust 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 applicablerequirements 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 itwith a section cross-referencing the location of requirements listed in this part and the equivalent requirementsin 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) forproduced water containers and any associated piping; and

(viii) The Plan and individual(s) responsible for implementing this Plan have the approval of management, andthe facility owner or operator has committed the necessary resources to fully implement this Plan.

(2) Technical Amendments. You must certify any technical amendments toyour Plan in accordance with paragraph (a)(1) of this section when thereis a change in the facility design, construction, operation, or maintenancethat 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 qualifyingcriteria in §112.3(g)(1) because an individual oil storage container capacityexceeds 5,000 U.S. gallons or the facility capacity exceeds 10,000 U.S. gallonsin 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 inaccordance 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 anSPCC 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),


### 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 thispart 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 otherequipment 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 tocontain 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 acatchment basin or holding pond. Position or locate mobile or portable oilstorage 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 containeris provided with a system or documented procedure to prevent overfills of the container, describe the systemor 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 inaccordance 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) forproduced 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 toyour Plan in accordance with paragraph (b)(1) of this section when thereis a change in the facility design, construction, operation, or maintenancethat 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 yourPlan 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


### 38 40 CFR Ch. I (7–1–15 Edition) § 112.7

must, within six months following the change, prepare and implement a Planin 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 asprovided 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. YourPlan 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 thatsecondary 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 Certificationof Portions of a Qualified Facility’s SelfCertified Plan.

(i) As described in paragraph (b)(3) ofthis 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 licensedProfessional 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 ofimpracticability of secondary containment pursuant to §112.7(d), the Plan must clearly explain why secondarycontainment 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 ofenvironmental 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) ofthis section, the facility owner or operator may not self-certify measures as described in §112.9(c)(6) for produced water containers and any associatedpiping. 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 alternativemethod 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 SpillPrevention, 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


### 39 Environmental Protection Agency § 112.7

the Plan. You must prepare the Plan inwriting. If you do not follow the sequence specified in this section for the Plan, you must prepare an equivalentPlan 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 mustexplain 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 maydeviate from the requirements in paragraphs (g), (h)(2) and (3), and (i) of thissection and the requirements in subparts B and C of this part, except the secondary containment requirementsin 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 youprovide equivalent environmental protection by some other means of spillprevention, 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, exceptthe 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 nonconformancein your Plan and describe in detail alternate methods and how you willachieve 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 physicallayout 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 areotherwise exempted from the requirements of this part under §112.1(d)(4). The facility diagram must also include all transfer stations and connectingpipes, including intra-facility gathering lines that are otherwise exempted from the requirements of this partunder §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, eitherprovide the type of oil and storage capacity for each container or provide an estimate of the potential number of mobile or portable containers, thetypes of oil, and anticipated storage capacities;

(ii) Discharge prevention measuresincluding procedures for routine handling of products (loading, unloading, and facility transfers, etc.);

(iii) Discharge or drainage controls such as secondary containment aroundcontainers 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 recoveredmaterials 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 Planto enable a person reporting a discharge as described in §112.1(b) to relate information on the exact address


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

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 orinjuries 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 ina 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 oilwhich 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 asdescribed 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 productionfacility. 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 asa 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 typicalfailure mode, and the most likely quantity of oil that would be discharged. Secondary containment may be eitheractive 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 yourPlan are certified by a licensed Professional Engineer under §112.6(d), if you determine that the installation of anyof 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 isnot practicable, you must clearly explain in your Plan why such measures are not practicable; for bulk storagecontainers, 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 andtests, signed by the appropriate supervisor or inspector, with the SPCC Plan for a period of three years. Records of


### 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 facilityoperations; 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 dischargeprevention briefings for your oil-handling personnel at least once a year to assure adequate understanding of theSPCC Plan for that facility. Such briefings must highlight and describe known discharges as described in §112.1(b) or failures, malfunctioningcomponents, 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 startercontrols on oil pumps; secure out-ofservice and loading/unloading connections of oil pipelines; and address the appropriateness of security lighting toboth prevent acts of vandalism and assist in the discovery of oil discharges.

(h) Facility tank car and tank truckloading/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 warninglight or physical barrier system, warning signs, wheel chocks or vehiclebrake 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 ofany tank car or tank truck, closely inspect for discharges the lowermost drain and all outlets of such vehicles, and if necessary, ensure that they aretightened, adjusted, or replaced to prevent liquid discharge while in transit.

(i) If a field-constructed abovegroundcontainer undergoes a repair, alteration, reconstruction, or a change in service that might affect the risk of adischarge 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 completediscussion 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 qualificationcriteria 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 thethree 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


### 42 40 CFR Ch. I (7–1–15 Edition) § 112.8

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 secondarycontainment is not provided for qualified oil-filled operational equipmentpursuant 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 amonitoring 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)

S OURCE : 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 anonshore facility (excluding a production facility), you must:

(a) Meet the general requirements for the Plan listed under §112.7, and thespecific 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 beforestarting, 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 fora discharge (such as where piping is located outside containment walls or where tank truck discharges may occur outside the loading area) to flow intoponds, 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 allditches 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


### 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 ensurethat 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 systemconsisting 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 suchevents, 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 bycoatings or cathodic protection compatible with local soil conditions.

(6) Test or inspect each aboveground container for integrity on a regularschedule 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 testingand inspections, which take into account container size, configuration, and design (such as containers thatare: shop-built, field-erected, skidmounted, elevated, equipped with aliner, double-walled, or partially buried). Examples of these integrity tests include, but are not limited to: visualinspection, 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 usualand 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 heatingcoils 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 goodengineering 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 constantlyattended 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 bulkstorage 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.


### 44 40 CFR Ch. I (7–1–15 Edition) § 112.9

(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. Youmust promptly remove any accumulations of oil in diked areas.

(11) Position or locate mobile or portable oil storage containers to prevent adischarge 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 dikeor catchment basin, sufficient to contain the capacity of the largest singlecompartment or container with sufficient freeboard to contain precipitation.

(d) Facility transfer operations, pumping, and facility process. (1) Provide buried piping that is installed or replacedon or after August 16, 2002, with a protective wrapping and coating. You must also cathodically protect such buried piping installations or otherwisesatisfy 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 abovegroundvalves, 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 metalsurfaces. You must also conduct integrity and leak testing of buried pipingat 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, andCountermeasure Plan Requirements for onshore oil production facilities (excluding drilling and workover facilities).

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

(a) Meet the general requirements for the Plan listed under §112.7, and thespecific discharge prevention and containment procedures listed under this
section.

(b) Oil production facility drainage. (1) At tank batteries and separation andtreating 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 anaccumulation of oil that may have resulted from any small discharge. Youmust 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) ofthis section for produced water containers and any associated piping and


### 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) ofthis section for produced water containers and any associated piping and appurtenances downstream from thecontainer, periodically and upon a regular schedule visually inspect each
container of oil for deterioration andmaintenance 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 oldtank 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 subjectto a computer production control system.

(5) Flow-through process vessels. The owner or operator of a facility with flow-through process vessels maychoose to implement the alternate requirements as described below in lieuof 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 testflow-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 vesselsand 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 ofoil in each of two discharges as described in §112.1(b) within any twelvemonth 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 thefacility 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 withthe 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 onthe surface of the produced water. Include in the Plan a description of theprocedures, 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 andcustomary 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 conditionsthat could lead to a discharge as described in §112.1(b) in accordance with good engineering practice.


### 46 40 CFR Ch. I (7–1–15 Edition) § 112.10

(iii) Take corrective action or makerepairs 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 ofoil in each of two discharges as described in §112.1(b) within any twelve month period from a produced watercontainer subject to this subpart (excluding discharges that are the resultof natural disasters, acts of war, or terrorism) then you must, within sixmonths 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 allaboveground 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, particularlyfollowing a sudden change in atmospheric temperature, to detect possiblesystem upsets capable of causing a discharge.

(3) For flowlines and intra-facility gathering lines that are not providedwith 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 writtenprogram 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 gatheringlines that are not provided with secondary containment in accordance with §112.7(c), the frequency and typeof testing must allow for the implementation of a contingency plan as described under part 109 of this chapter.

(iii) Take corrective action or makerepairs 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 anonshore oil drilling and workover facility, you must:

(a) Meet the general requirements listed under §112.7, and also meet thespecific discharge prevention and containment procedures listed under this
section.

(b) Position or locate mobile drillingor workover equipment so as to prevent a discharge as described in §112.1(b).

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


### 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 controllingany 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 thespecific 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 mustcontrol 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 andtesting program to assure reliable operation of the liquid removal system and pump start-up device. Redundantautomatic 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 failin 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 ahigh 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 alarmor 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 equipmentand systems at the facility on a scheduled periodic basis, commensurate withthe complexity, conditions, and circumstances of the facility and any other appropriate regulations. Youmust 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 wellcontrol 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 thatmay 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


### 48 40 CFR Ch. I (7–1–15 Edition) § 112.12

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 andother activities such as fishing operations.

(p) Maintain sub-marine piping appurtenant to the facility in good operating condition at all times. You mustperiodically 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 MarineMammal Oils; and for Vegetable Oils, including Oils fromSeeds, Nuts, Fruits, and Kernels

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

§ 112.12 Spill Prevention, Control, andCountermeasure 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 thespecific 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 effluenttreatment 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 beforestarting, 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 fora discharge (such as where piping is located outside containment walls or where tank truck discharges may occur outside the loading area) to flow intoponds, 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 allditches 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-relatedtank 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 ensurethat diked areas are sufficiently impervious to contain discharged oil. Dikes,containment curbs, and pits are commonly employed for this purpose. You


### 49 Environmental Protection Agency § 112.12

may also use an alternative systemconsisting 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 suchevents, 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 bycoatings 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 inspecteach aboveground container for integrity on a regular schedule and whenever you make material repairs. Youmust 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, orother systems of non-destructive testing. You must keep comparison recordsand you must also inspect the container’s supports and foundations. In addition, you must frequently inspect the outside of the container for signs ofdeterioration, 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 thatare 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 regularschedule. 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 performingtests and inspections. Records of inspections and tests kept under usualand 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 heatingcoils 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 goodengineering 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 constantlyattended 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.


### 50 40 CFR Ch. I (7–1–15 Edition) §§ 112.13–112.15

(iv) A fast response system for determining the liquid level of each bulkstorage 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. Youmust promptly remove any accumulations of oil in diked areas.

(11) Position or locate mobile or portable oil storage containers to prevent adischarge 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 dikeor catchment basin, sufficient to contain the capacity of the largest singlecompartment or container with sufficient freeboard to contain precipitation.

(d) Facility transfer operations, pumping, and facility process. (1) Provide buried piping that is installed or replacedon or after August 16, 2002, with a protective wrapping and coating. You must also cathodically protect such buried piping installations or otherwisesatisfy 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 abovegroundvalves, 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 metalsurfaces. You must also conduct integrity and leak testing of buried pipingat 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 facilitythat, 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 ofa 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 satisfythe requirements of this section and resubmit the response plan or updatedportions 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


### 51 Environmental Protection Agency § 112.20

a response plan by February 18, 1993 shall prepare and submit a response plan that satisfies the requirements ofthis 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 notifiedby the Regional Administrator pursuant to paragraph (b) of this sectionshall 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 operatorshall submit the response plan or updated portions of the response plan, along with a completed version of the response plan cover sheet contained inappendix F to this part, to the Regional Administrator prior to August 30, 1994.

(ii) For a newly constructed facilitythat 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 tothis part, to the Regional Administrator prior to the start of operations (adjustments to the response plan toreflect 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 prepareand submit a response plan after August 30, 1994, as a result of a plannedchange in design, construction, operation, or maintenance that renders thefacility 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 ofthe response plan cover sheet contained in appendix F to this part, to the Regional Administrator before the portion of the facility undergoingchange commences operations (adjustments to the response plan to reflectchanges that occur at the facility during the start-up phase of operationsmust be submitted to the Regional Administrator after an operational trial period of 60 days).

(iv) For a facility required to prepareand 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 inappendix 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 prepareand submit a response plan uses an alternative formula that is comparable to one contained in appendix C to thispart to evaluate the criterion in paragraph (f)(1)(ii)(B) or (f)(1)(ii)(C) of thissection, 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 facilitythat 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 afacility response plan that has been approved under paragraph (c) of this section by July 31, 2000 need not prepareor 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 operatorof 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


### 52 40 CFR Ch. I (7–1–15 Edition) § 112.20

this part. An owner or operator need not prepare or submit a new plan if theexisting plan meets or exceeds the applicable provisions of this part. If theplan 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. Theowner or operator of a newly constructed facility that commences operation after July 31, 2000 must prepareand 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 orunplanned 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 hadbeen 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 anamended plan to the Regional Administrator in accordance with paragraph (d) of this section, as appropriate. Theplan must meet or exceed the applicable provisions of this part.

(b)(1) The Regional Administrator may at any time require the owner oroperator of any non-transportation-related onshore facility to prepare and submit a facility response plan underthis section after considering the factors in paragraph (f)(2) of this section. If such a determination is made, the Regional Administrator shall notifythe 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 shallreview plans submitted by such facilities to determine whether the facilitycould, because of its location, reasonably be expected to cause significant
and substantial harm to the environment by discharging oil into or on thenavigable waters or adjoining shorelines.

(c) The Regional Administrator shalldetermine 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 andresubmit 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)


### 53 Environmental Protection Agency § 112.20

that provide equipment and personnelto respond to discharges of oil described in paragraph (h)(5) of this section;

(iv) A material change in the facility’s spill prevention and responseequipment 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 achange in the oil spill removal organization(s) that does not result in a material change in support capabilities do not require approval by the RegionalAdministrator. 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 theEPA-issued facility identification number (where one has been assigned) with the changes.

(4) The Regional Administrator shallreview for approval changes to a response plan submitted pursuant toparagraph (d)(1) of this section for a facility determined pursuant to paragraph (f)(3) of this section to have thepotential 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 facilitycould 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 andmaintain at the facility the certification form contained in appendix C tothis 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 ofthe 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 thenavigable waters or adjoining shorelines pursuant to paragraph (a)(2) ofthis 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 applicableArea 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 facilitycould, because of its location, reasonably be expected to cause substantial


### 54 40 CFR Ch. I (7–1–15 Edition) § 112.20

harm to the environment by discharging oil into or on the navigablewaters 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 areasdetermined 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 oron 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 tothis section could, because of its location, reasonably be expected to cause
substantial harm to the environmentby discharging oil into or on the navigable waters or adjoining shorelinesmay 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 thefactors 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 facilitycould, because of its location, reasonably be expected to cause significant
and substantial harm to the environment by discharging oil into or on thenavigable 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 (40CFR 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 planningcommittee 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 theformat 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 responseplan 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 responseplan, or as a separate document accompanying the response plan, and that includes the following information:


### 55 Environmental Protection Agency § 112.20

(i) The identity and telephone number of a qualified individual having fullauthority, 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 thedischarge, and to provide adequate containment and drainage of discharged oil; and

(viii) A diagram of the facility. (2) Facility information. The responseplan 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 thequalified 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 aworst 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 worstcase discharge (To identify response resources to meet the facility responseplan 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 ofthis 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 thissection 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 thequalified 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, exactsource, 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 theNational 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


### 56 40 CFR Ch. I (7–1–15 Edition) § 112.20

effects of the release (i.e., the effects of any toxic, irritating, or asphyxiatinggases 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 CFRpart 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 thedischarges would be on the affected environment. To assess the range of areaspotentially 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 thenavigable 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. Incases where the Regional Administrator determines that the worst casedischarge 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 theamounts 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 ofthe 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 theamounts 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 outby facility personnel or contracted personnel under the response plan to ensure the safety of the facility and tomitigate 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 adequatecontainment 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/exerciseprogram 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 shallinclude site plan and drainage plan diagrams.

(10) Security systems. The responseplan shall include a description of facility security systems.

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


### 57 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 withthe 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 tothe worst case discharge planning volume, the owner or operator may submit a request for reconsideration tothe Regional Administrator and provide additional information and data inwriting to support the request. The request and accompanying informationmust be submitted to the Regional Administrator within 60 days of receipt of notice of the Regional Administrator’soriginal decision. The Regional Administrator shall consider the request andrender a decision as rapidly as practicable.

(2) In the event the owner or operatorof a facility believes a change in the facility’s classification status is warranted because of an unplanned eventor change in the facility’s characteristics (i.e., substantial harm or significant and substantial harm), the owner or operator may submit a request forreconsideration to the Regional Administrator and provide additional information and data in writing to support the request. The Regional Administrator shall consider the request andrender a decision as rapidly as practicable.

(3) After a request for reconsideration under paragraph (i)(1) or (i)(2) ofthis 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 thedecision from the Regional Administrator that the request for reconsideration was denied. A complete copy ofthe appeal must be sent to the Regional Administrator at the time theappeal is made. The appeal shall contain a clear and concise statement of the issues and points of fact in thecase. 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 operatorshall describe the programs in the response plan as provided in §112.20(h)(8).

(b) The facility owner or operatorshall develop a facility response training program to train those personnel involved in oil spill response activities. It is recommended that the trainingprogram be based on the USCG’s Training Elements for Oil Spill Response, asapplicable 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 torespond 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 operatorshall 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


### 58 40 CFR Ch. I (7–1–15 Edition) Pt. 112, App. A

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]

A PPENDIX A TO P ART 112—M EMORANDUM

OF U NDERSTANDING B ETWEEN THE S ECRETARY OF T RANSPORTATION AND

THE A DMINISTRATOR OF THE E NVI

RONMENTAL P ROTECTION A GENCY

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 indrilling 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 exploratoryor 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 allequipment 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 allequipment and appurtenances related thereto as well as fixed bulk plant storage, terminal oil storage facilities, consumer storage, pumps and drainage systems used in thestorage of oil, but excluding inline or breakout storage tanks needed for the continuousoperation 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, butexcluding 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, loadingarms and other equipment which are appurtenant to a nontransportation-related facility or terminal facility and which are usedto transfer oil in bulk to or from highway vehicles or railroad cars.

(J) Highway vehicles and railroad carswhich 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 thetransport of oil exclusively within the confines of a nontransportation-related facilityor 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 otherequipment appurtenant to a non-transportation-related facility which is used to transfer oil in bulk to or from a vessel.


### 59 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 forthe continuous operation of a pipeline system, and pipelines from onshore and offshoreoil 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 theequipment and appurtenances related thereto, and equipment used for the fueling of locomotive units, as well as the rights-of-wayon which they operate. Excluded are highway vehicles and railroad cars and motive power used exclusively within the confines ofa nontransportation-related facility or terminal facility and which are not intended for
use in interstate or intrastate commerce.

A PPENDIX B TO P ART 112—M EMORANDUM

OF U NDERSTANDING A MONG THE S EC

RETARY OF THE I NTERIOR , S EC

RETARY OF T RANSPORTATION

, AND A DMINISTRATOR OF THE E NVIRON

MENTAL P ROTECTION A GENCY

P URPOSE

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 ofthe 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 forthbelow for spill prevention and control, response planning, and equipment inspection activities pursuant to those provisions.

B ACKGROUND

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 associatedwith 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.

R ESPONSIBILITIES

Pursuant to section 2(i) of E.O. 12777, DOIredelegates, 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 responsibilityfor non-transportation-related offshore facilities located landward of the coast line.

2. To DOT, DOI redelegates responsibilityfor transportation-related facilities, including pipelines, located landward of the coastline. 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.

E FFECTIVE D ATE

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

L IMITATIONS

1. The DOI, DOT, and EPA may agree inwriting 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.

M ODIFICATION AND T ERMINATION

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 shallmeet 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.


### 60 40 CFR Ch. I (7–1–15 Edition) Pt. 112, App. C

Dated: February 3, 1994. Carol M. Browner,

Administrator, Environmental Protection Agency.

[59 FR 34102, July 1, 1994]

A PPENDIX C TO P ART 112—S UBSTANTIAL H ARM C RITERIA

1.0 I NTRODUCTION

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 oradjoining shorelines.’’ In addition, the Regional Administrator has the discretion toidentify 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 ofwater 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 D ESCRIPTION OF S CREENING C RITERIA FOR

THE S UBSTANTIAL H ARM F LOWCHART

A facility that has the potential to cause
substantial harm to the environment in theevent 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 Thanor 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 responseplan to EPA. Secondary containment structures that meet the standard of good engineering practice for the purposes of this partinclude 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 thata 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 couldcause injury to fish and wildlife and sensitive environments using the appropriate formula presented in Attachment C–III to this appendix or a comparable formula.


### 61 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 downa 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 5Years and That Have a Total Oil Storage Capacity Greater Than or Equal to 1 Million Gallons. A facility’s oil spill history within thepast 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 anamount greater than or equal to 10,000 gallons within the past 5 years must submit a response plan to EPA.

3.0 C ERTIFICATION FOR F ACILITIES T HAT D O N OT P OSE S UBSTANTIAL H ARM

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 AttachmentC–II to this appendix. In the event an alternative formula that is comparable to the onein 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 R EFERENCES

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.


### 62 40 CFR Ch. I (7–1–15 Edition) Pt. 112, App. C

A TTACHMENTS TO 

### A PPENDIX 

### C


### 63 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.

2 For the purposes of 40 CFR part 112, public drinking water intakes are analogous to public water systems as described at 40 CFR 143.2(c). A TTACHMENT C-II—C ERTIFICATION OF THE A P

PLICABILITY OF THE S UBSTANTIAL H ARM C RI

TERIA

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 tocontain 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 milliongallons and is the facility located at a distance (as calculated using the appropriateformula in Attachment C–III to this appendix or a comparable formula 1 ) such that adischarge from the facility could cause injury to fish and wildlife and sensitive environments? For further description of fish andwildlife 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 milliongallons 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 milliongallons 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

A TTACHMENT C-III—C ALCULATION OF THE P LANNING D ISTANCE

1.0 Introduction

1.1 The facility owner or operator must evaluate whether the facility is located at adistance such that a discharge from the facility could cause injury to fish and wildlifeand 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 navigablewaters. 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 andthe 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, whichtake 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 iscomparable 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), theowner 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


### 64 40 CFR Ch. I (7–1–15 Edition) Pt. 112, App. C

1 For persistent oils or non-persistent oils,a worst case trajectory model (i.e., an alternative formula) may be substituted for the distance formulas described in still, moving,and tidal waters, subject to Regional Administrator’s review of the model. An example of an alternative formula that is comparable to the one contained in this appendix would be a worst case trajectory calculation based on credible adverse winds, currents, and/or riverstages, 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 theflowchart 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 inthe 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 thatmore 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 watertype to determine the greatest single distance that oil may be transported. As a result, the final planning distance for oiltransport 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), anda 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. TheChezy-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 ofa discharge. Assuming no prior planning, response resources should be able to arrive atthe 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 Eto 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 comparableformula 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 sec w mile/
hr w ft (3600 sec/hr ÷ 5280 ft/mile).2.2 Chezy-Manning’s equation is used to determine velocity:
v=1.5/n × r 2 ⁄ 3 × s 1 ⁄ 2 ; where v=the velocity of the river of concern (in ft/ sec); n=Manning’s Roughness Coefficient from Table 1 of this attachment; r=the hydraulic radius; the hydraulic radiuscan 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 235172Lhorne on DSK5TPTVN1PROD with CFR

### 65 Environmental Protection Agency Pt. 112, App. C

channel depth of the river (in feet) by0.667 (sources for obtaining the mid-channel depth are listed in Table 2 of this attachment); ands=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.

T ABLE 1—M ANNING ’ S R OUGHNESS C OEFFICIENT

FOR N ATURAL S TREAMS

[N OTE : 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

T ABLE 2—S OURCES OF R AND S FOR THE C HEZY M ANNING E QUATION

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 ServiceDepartment 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) 634–5000Charts 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) 684–3002Charts 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) 690–2511The 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 locateddownstream (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 thewater at the point of discharge from the facility (A). Determine the elevation of the


### 66 40 CFR Ch. I (7–1–15 Edition) Pt. 112, App. C

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 theslope 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 thetime 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 thespecific 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 avariety 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 theycan 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 notincluded 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 capableof having an oil discharge of sufficient quantity to cause injury to fish and wildlife and sensitive environments or shut down a publicdrinking water intake. While owners or operators of transfer facilities that store greaterthan 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.

T ABLE 3—S PECIFIED T IME I NTERVALS

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. T ABLE 3—S PECIFIED T IME I NTERVALS — 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 asample 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 betweenthe 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 × r 2 ⁄ 3 × s 1 ⁄ 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 sec w mile/
hr w 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 orponds 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


### 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 potentiallydischarge 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:
A 1 = 10 5 × V 3 ⁄ 4 × C
C=0.1643
A 1 = 10 5 × (2,000,000 gallons) 3 ⁄ 4 × (0.1643)
A 1 = 8.74 × 10 8 ft 2

(2) The spreading formula is based on the theoretical condition that the oil will spread uniformly in all directions forming a circle. In reality, the outfall of the discharge will
direct the oil to the surface of the water where it intersects the shoreline. Althoughthe 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=† r 2 (4) To account for the assumption that oil will spread in a semi-circular shape, the area of a circle is divided by 2 and is designated as
A 2
. A 2 = († r 2 )/2Solving for the radius, r, using the relationship A 1 = A 2 : 8.74 × 10 8 ft 2 = († 2 )/2 Therefore, r=23,586 ft r=23,586 ft ÷ 5,280 ft/mile=4.5 milesAssuming a 20 knot wind under storm conditions:
1 knot=1.15 miles/hour
20 knots × 1.15 miles/hour/knot=23 miles/hrAssuming 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 oilwill 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 onworst case discharges of persistent and nonpersistent oils. Persistent oils are of primary concern because they can potentially cause harm over a greater distance. For persistentoils 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 ebbtide 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 movingnavigable 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 milesdownstream is the appropriate planning distance for this facility.

5.0 Oil Transport Over Land

5.1 Facility owners or operators mustevaluate 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


### 68 40 CFR Ch. I (7–1–15 Edition) Pt. 112, App. C

4 The design velocities were obtained from Howard County, Maryland Department ofPublic 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 willflow 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 wateris 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 consideredto 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, X 1 , to a storm drain or anopen concrete channel leading to navigable water. D2=Distance through the storm drain or open concrete channel to navigable
water. D3=Distance downstream from the outfall
within which fish and wildlife and sensitive environments could be injured or a public drinking water intake would be shut down as determined by the planning
distance formula. D4=Distance from the nearest opportunity for discharge, X 2 , to fish and wildlife and sensitive environments not bordering navigable water.

5.5 A facility owner or operator whose nearest 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 thatflow 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 secondarycontainment 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 fromthe 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 distancefrom 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, drainagepatterns, 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 navigablewaters 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.


### 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]


### 70 40 CFR Ch. I (7–1–15 Edition) Pt. 112, App. D

1 ‘‘Storage facilities’’ represent all facilities subject to this part, excluding oil production facilities. A PPENDIX D TO P ART 112—D ETERMINA

TION OF A W ORST C ASE D ISCHARGE P LANNING V OLUME

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 foremergency 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 theworst case discharge planning volume, adverse weather conditions must be taken intoconsideration. An owner or operator is required to determine the facility’s worst case discharge planning volume from either partA of this appendix for an onshore storage facility, or part B of this appendix for an onshore production facility. The worksheetconsiders 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 insuch a manner that the multiple tanks function as one storage unit (i.e., multiple tankvolumes are equalized). In a worst case discharge scenario, a single failure could cause the discharge of the contents of more thanone 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 oilstorage unit, the worst case discharge planning volume would be based on the combined oil storage capacity of all manifolded tanksor 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 orgas 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 transferfacilities 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, aseparate 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 EPAand 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 capacityof 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.


### 71 Environmental Protection Agency Pt. 112, App. D

2 Secondary containment is described in 40CFR 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 forthe 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 thetotal 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 oftanks without adequate secondary containment. If all aboveground oil storage tanks or groups of aboveground oil storage tanks atthe 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 orthe 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 completedby 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 allwells (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 casedischarge 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 volumeis 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 withthe 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 appendixprovides 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 ofthe 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 volumeis 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 isestimated, then the production volume is determined from the pumping rate of the well multiplied by 1.5 times the greatest numberof days that the facility has been or is expected to be unattended.

(3) Attachment D–1 to this appendix provides methods for calculating the productionvolumes for exploratory wells and production wells producing under pressure.

(A) FINAL WORST CASE VOLUME:

llll GAL

(B) Do not proceed further.


### 72 40 CFR Ch. I (7–1–15 Edition) Pt. 112, App. D

4 All complexes that are jointly regulated by EPA and the USCG must also calculate the worst case discharge planning volume forthe 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 oftanks without adequate secondary containment. If all aboveground oil storage tanks or groups of aboveground oil storage tanks atthe 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 orthe 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–1provides 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.

A TTACHMENTS TO A PPENDIX D

A TTACHMENT D–I—M ETHODS T O C ALCULATE

P RODUCTION V OLUMES FOR P RODUCTION F A

CILITIES W ITH E XPLORATORY W ELLS OR P RO

DUCTION W ELLS P RODUCING U NDER P RES

SURE

1.0 Introduction

The owner or operator of a production facility with exploratory wells or productionwells 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 productionvolume 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 well10,000 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 volume 1 + discharge volume 2 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 volume 1 ).

Discharge volume 1 = (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 thedischarge is stopped, adjusted for the recovery rate of the response resources (discharge
volume 2 ).

(1) For wells 10,000 feet deep or less: Discharge volume 2 = [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 volume 2 = [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 wellrate 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 andpersonnel 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 volume 1 = (7 days + 2 days) × (10 barrels per day)=90 barrels

(3) The second term of the equation is:

Discharge volume 2 = [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


### 73 Environmental Protection Agency Pt. 112, App. E

3.2 If the recovery rate was 5 barrels perday, 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]

A PPENDIX E TO P ART 112—D ETERMINA

TION AND E VALUATION OF R EQUIRED R ESPONSE R ESOURCES FOR F ACILITY R ESPONSE P LANS

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 40CFR 112.20(h), owners or operators shall follow this appendix or, where not appropriate, shall clearly demonstrate in the responseplan 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 furtherclassified 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 theboundary 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 timeof 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 notmeet 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 furtherclassified 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 fromplant 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 responseplan 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.


### 74 40 CFR Ch. I (7–1–15 Edition) Pt. 112, App. E

2.3 When identifying equipment for theresponse plan (based on the use of this appendix), a facility owner or operator must
consider the inherent limitations of theoperability 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. Thesecriteria 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 supportresponse operations in an operating environment must be designed to function in thesame conditions. For example, boats that deploy or support skimmers or boom must becapable 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 thefacility’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 statedtime. A facility owner or operator shall include the time for notification, mobilization,
and travel of resources identified to meet themedium 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 mobilizationof 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 knotsand 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 facilityowner 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 thatthe 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 shallidentify sufficient response resources available, by contract or other approved means asdescribed 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 bedesigned 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 planninglevel that corresponds to EPA’s ‘‘small discharge’’ is termed ‘‘the average most probable discharge.’’ A USCG rule found at 33CFR 154.1020 defines ‘‘the average most probable discharge’’ as the lesser of 50 barrels (2,100 gallons) or 1 percent of the volume ofthe 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 fatsand vegetable oils must plan for oil discharge volumes for a small discharge. Thereis 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 theamount of oil discharged in a small discharge or greater which is available at the


### 75 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 shallidentify sufficient response resources available, by contract or other approved means as described in §112.2, to respond to a mediumdischarge 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 theworst 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 fatsand vegetable oils must plan for oil discharge volumes for a medium discharge. Fornon-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 GreatLakes 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 mustdetermine response resources using an effective daily recovery capacity for oil recovery devices equal to 50 percent of the planningvolume 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 asdescribed 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, bycontract 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 tomeet 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 calculationfor 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 asthe 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 insection 6 of this appendix. Temporary storage capacity available on-scene must equaltwice the daily recovery capacity as indicated in section 12.2 of this appendix, or36,000 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


### 76 40 CFR Ch. I (7–1–15 Edition) Pt. 112, App. E

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 theend 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 planningfor 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 oroperators of complex facilities that are regulated by EPA and the USCG must compareboth 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, bycontract or other approved means as described in §112.2, to meet the applicable worst case discharge planning volume mustbe 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 ................................................................................................................... 1 2 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 ownersor operators must plan for response resources to arrive at the scene of a dischargeto 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 worstcase 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; andthe third tier of response resources would arrive within 60 hours.

5.4 The effective daily recovery capacityfor oil recovery devices identified in the response plan must be determined using thecriteria in section 6 of this appendix. A facility owner or operator shall identify the storage locations of all response resources usedfor each tier. The owner or operator of a facility whose required daily recovery capacity exceeds the applicable contracting caps inTable 5 of this appendix shall, as appropriate, identify sources of additional equipment, their location, and the arrangementsmade 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 specificsources, locations, and quantities of equipment that a facility owner or operator hasconsidered 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 responsecapacity cap for the specific facility, as specified in Table 5 of this appendix, it is notnecessary to list specific quantities of equipment.

5.5 A facility owner or operator shallidentify 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 shallowwater, 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 approvedmeans 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 235172Lhorne on DSK5TPTVN1PROD with CFR

### 77 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 andcontainment will depend on the facility-specific information and response strategies employed. A facility owner or operator shall, asappropriate, 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’’ (seeappendix 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 availabilityof 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 identifyan 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 applicableplanning 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 appendixshall 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 usedto 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); andE—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, throughputrate 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 tosupport 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 maysubmit 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 testsusing 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 usedto 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);
andU—Hours per day that equipment can operate under discharge conditions. Tenhours per day must be used unless a facility owner or operator can demonstratethat the recovery operation can be sustained for longer periods.6.3.2 A facility owner or operator submitting a response plan shall provide data thatsupports the effective daily recovery capacities for the oil recovery devices listed. Thefollowing 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


### 78 40 CFR Ch. I (7–1–15 Edition) Pt. 112, App. E

(2) After testing using ASTM procedures,the skimmer’s oil recovery rate is determined to be 220 gpm. The facility owner oroperator 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 planfor 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 involume due to emulsification, and the potential for deposition of oil on the shoreline. The procedures for non-petroleum oils otherthan animal fats and vegetable oils are discussed in section 7.7 of this appendix.

7.2 The following procedures must be usedby 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 definitionsof non-persistent and persistent oils, respectively. Facilities that handle, store, or transport oil from different oil groups must calculate each group separately, unless the oilgroup 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 inTable 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 lessby 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 bythe on-water oil recovery resource mobilization factor found in Table 4 of this appendixfrom 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 54hours 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 necessaryto sustain operations in the applicable operating area. The equipment shall be capable of sustaining operations for the time periodspecified in Table 2 of this appendix. The facility owner or operator shall identify and ensure the availability, by contract or otherapproved means as described in §112.2, of sufficient oil spill recovery devices to providethe effective daily oil recovery capacity required. If the required capacity exceeds theapplicable 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 facilitythat 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 volumemust be used to plan for the amount of response resources for a worst case discharge, unless the oil group comprises 10 percent orless 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 tocalculate 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


### 79 Environmental Protection Agency Pt. 112, App. E

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 organizationwith 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 1through 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 alsoverify 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 7.3of 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 highervolume port area. The facility is on a peninsula and has docks on both the ocean and bay sides. The facility has four abovegroundoil 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 3.78million 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,’’ (seeappendix 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 andwildlife 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 5oils 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 containingthe 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.


### 80 40 CFR Ch. I (7–1–15 Edition) Pt. 112, App. E

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 fightingresources 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 shallalso identify an individual located at the facility to work with the fire department for Group 5 oil fires. This individual shall alsoverify that sufficient well-trained fire fighting resources are available within a reasonable response time to respond to a worst casedischarge. The individual may be the qualified individual identified in the responseplan 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 thisappendix 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 facilitythat 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 facilitythat handles, stores, or transports non-petroleum oils other than animal fats and vegetable oils must ensure that any equipmentidentified 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, thefacility 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 facilitythat 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 onthe 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 aneffective 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 facilitythat 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 adequatefire 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 locatedat 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 areasonable 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 shallidentify sufficient response resources available, by contract or other approved means asdescribed 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 planningquantities for the marine transportation-related portion of the facility.

8.2.1 The USCG planning level that corresponds to EPA’s ‘‘small discharge’’ istermed ‘‘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


### 81 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 theamount 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 shallidentify 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 forthat 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. Allequipment 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 isno 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 GreatLakes 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 planningvolume 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 asdescribed 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 requiredquantities 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 tomeet 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 calculationfor 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 50percent 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 thedaily 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 andensure 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.


### 82 40 CFR Ch. I (7–1–15 Edition) Pt. 112, App. E

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 responseplanning procedures for animal fats and vegetable oils are discussed in section 10.7 ofthis 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 beused 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 transportedat the facility (Groups A, B, C); and the facility’s specific operating area. See sections1.2.1 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 inTable 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 oilgroup 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 multipliedby 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 54hours 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 necessaryto sustain operations in the applicable operating area. The equipment shall be capable of sustaining operations for the time periodspecified in Table 6 of this appendix. The facility owner or operator shall identify and ensure, by contract or other approved meansas described in §112.2, the availability of sufficient oil spill recovery devices to providethe effective daily oil recovery capacity required. If the required capacity exceeds theapplicable 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 beused to plan for the amount of response resources for a worst case discharge, unless theoil 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 transportedat 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.


### 83 Environmental Protection Agency Pt. 112, App. E

10.3.3 The resulting volume shall be used to identify an oil spill removal organizationwith 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 transportsGroup 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 firefighting 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 10.3of this appendix. A facility with a 37.04 million gallon (881,904 barrel) capacity of severaltypes of vegetable oils is located in the Inland Operating Area. The vegetable oil withthe highest specific gravity stored at the facility is soybean oil (specific gravity 0.922, Group B vegetable oil). The facility has tenaboveground 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 ownsecondary 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 secondarycontainment (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 .4 0 Estimated Daily Recovery Capacity (bbls) ...................................................................................... 3 0,000 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 capsidentified in Table 5 of this appendix, the facility owner will contract for a response of 12,500 barrels per day (bpd) for Tier 1, 25,000bpd 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 areapotentially 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 toDOC/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 theapplicable 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


### 84 40 CFR Ch. I (7–1–15 Edition) Pt. 112, App. E

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 beused 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 Coils 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 containingthe 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 fightingresources located at the facility or that cannot rely on sufficient local fire fighting resources must identify adequate fire fightingresources. The owner or operator shall ensure, by contract or other approved means as described in §112.2, the availability of theseresources. 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 verifythat 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 plandevelopment 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 anyequipment 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 1of this appendix. When evaluating the operability of equipment, the facility owner or operator must consider limitations that areidentified 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 animalfats and vegetable oils must identify the response resources that are available by contract or other approved means, as describedin §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 onthe 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 ofthis 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.


### 85 Environmental Protection Agency Pt. 112, App. E

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 beauthorized. 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 shallidentify 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 responseresources capable of containing and collecting up to 36,000 gallons of oil or 10 percent of the worst case discharge, whicheveris less. All equipment identified must be designed to operate in the applicable operatingenvironment specified in Table 1 of this appendix.

12.2 A facility owner or operator shallevaluate the availability of adequate temporary storage capacity to sustain the effective daily recovery capacities from equipment identified in the plan. Because of theinefficiencies 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 reducedif a facility owner or operator can demonstrate by waste stream analysis that theefficiencies 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 arelocated 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 at800–424–9346 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 F EDERAL R EGISTER 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.

T ABLE 1 TO A PPENDIX E—R ESPONSE R ESOURCE O PERATING C RITERIA

Oil Recovery Devices

Operating environment Significant wave height 1 Sea state

Rivers and Canals ..............................................................................................................

... ≤ 1 foot ....................... 1

Inland .........................................................................................................................

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


### 86 40 CFR Ch. I (7–1–15 Edition) Pt. 112, App. E

T ABLE 1 TO A PPENDIX E—R ESPONSE R ESOURCE O PERATING C RITERIA —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

1 Oil recovery devices and boom shall be at least capable of operating in wave heights up to and including the values listed in Table 1 for each operating environment.

T ABLE 2 TO A PPENDIX E—R EMOVAL C APACITY P LANNING T ABLE FOR P ETROLEUM O ILS

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

1 The response resource considerations for non-petroleum oils other than animal fats and vegetable oils are outlined in section 7.7 of this appendix.

N OTE : 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.

T ABLE 3 TO A PPENDIX E—E MULSIFICATION F ACTORS FOR P ETROLEUM O IL G ROUPS 1

Non-Persistent Oil: Group 1 ........................................................................................................................ .................................................. 1.0 Persistent Oil: Group 2 ........................................................................................................................ .................................................. 1.8 Group 3 ........................................................................................................................ .................................................. 2.0 Group 4 ........................................................................................................................ .................................................. 1.4 Group 5 oils are defined in section 1.2.7 of this appendix; the response resource considerations are outlined in section

7.6 of this appendix.

1 See sections 1.2.2 and 1.2.7 of this appendix for group designations for non-persistent and persistent oils, respectively.

T ABLE 4 TO A PPENDIX E—O N -W ATER O IL R ECOVERY R ESOURCE M OBILIZATION F ACTORS

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.

T ABLE 5 TO A PPENDIX E—R ESPONSE C APABILITY C APS BY O PERATING A REA

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.


### 87 Environmental Protection Agency Pt. 112, App. E

T ABLE 5 TO A PPENDIX E—R ESPONSE C APABILITY C APS BY O PERATING A REA —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/da y 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.

T ABLE 6 TO A PPENDIX E—R EMOVAL C APACITY P LANNING T ABLE FOR A NIMAL F ATS AND V EGETABLE O ILS

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 oilfrom onshore Percent natural loss Percent recovered floating oil Percent recovered oilfrom onshore

Group A ................................................. 40 15 45 50 20 30 Group B ................................................. 20 15 65 30 20 50

1 Substances with a specific gravity greater than 1.0 generally sink below the surface of the water. Response resource considerations are outlined in section 10.6 of this appendix. The owner or operator of the facility is responsible for determining ap pro- 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.

N OTE : 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.

T ABLE 7 TO A PPENDIX E—E MULSIFICATION F ACTORS FOR A NIMAL F ATS AND V EGETABLE O ILS

Oil Group 1 : Group A ........................................................................................................................ .................................................. 1.0 Group B ........................................................................................................................ .................................................. 2.0

1 Substances with a specific gravity greater than 1.0 generally sink below the surface of the water. Response resource considerations are outlined in section 10.6 of this appendix. The owner or operator of the facility is responsible for determining ap propriate 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.

N OTE : 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.


### 88 40 CFR Ch. I (7–1–15 Edition) Pt. 112, App. E

A TTACHMENTS TO A PPENDIX E


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### 95 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]

A PPENDIX F TO P ART 112—F ACILITY S PECIFIC R ESPONSE P LAN

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 List1.3.3 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


### 96 40 CFR Ch. I (7–1–15 Edition) Pt. 112, App. F

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 Planning1.8 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 ofsubstantial 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 operatorsmust 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 approvedby 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 by40 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 sectionsfor the non-transportation-related and transportation-related components, as describedin §112.20(h). Owners or operators of large facilities that handle, store, or transport oil atmore 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.


### 97 Environmental Protection Agency Pt. 112, App. F

1.1 Emergency Response Action Plan

Several sections of the response plan shallbe 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


### 98 40 CFR Ch. I (7–1–15 Edition) Pt. 112, App. F

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. Inthe latter case, both binders shall be kept together so that the entire plan can beaccessed 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) partial2. 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) complete5. 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) condensed8. Immediate Actions (Section 1.7.1) complete 9. Facility Diagram (Section 1.9) complete

1.2 Facility Information

The facility information form is designedto 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 thelatitude 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). 1The 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 nameof 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, andinstallation 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 alterationof 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

F ACILITY I NFORMATION F ORM

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


### 99 Environmental Protection Agency Pt. 112, App. F

Date of Oil Storage Start-up:

llllllll Current Operations:

lllllllllllll

llllllllllllllllllllllll

llllllllllllllllllllllllDate(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 andphone numbers of the organizations and personnel that need to be notified immediately in the event of an emergency. This sectionshall 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 facilityemployees 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 notdelay 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 andthe 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, aslong as the remainder is properly maintained. If appropriate, testing of response equipment may be conducted while it isbeing 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 ResponseExercise 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 thefacility 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 employedby 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 (bothprimary 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 beverified. The last form is the Facility Response Team List, which shall be composedof both emergency response personnel (referenced by job title/position) and emergency response contractors, included in one of the two lists described above, that will respondimmediately 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 primaryresponse contractors. Examples of these personnel would be the Facility Hazardous Materials (HAZMAT) Spill Team 1, FacilityFire 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 aworst case discharge and will identify additional assistance that may be needed. In addition, the facility owner or operator maywant 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


### 100 40 CFR Ch. I (7–1–15 Edition) Pt. 112, App. F

E MERGENCY N OTIFICATION P HONE L IST W HOM T O N OTIFY

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: S PILL R ESPONSE N OTIFICATION F ORM

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


### 101 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

F ACILITY R ESPONSE E QUIPMENT L IST

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) andthe 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


### 102 40 CFR Ch. I (7–1–15 Edition) Pt. 112, App. F

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
E MERGENCY R ESPONSE P ERSONNEL
Company Personnel

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

1.

2.

3.

4.

5.

6.

7.

8.

9.

10.

11.

12.

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

E MERGENCY R ESPONSE C ONTRACTORS
Date of Last Update:

llll
Contractor Phone Response time Contract responsibility 1

1.


### 103 Environmental Protection Agency Pt. 112, App. F

E MERGENCY R ESPONSE C ONTRACTORS —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.

F ACILITY R ESPONSE T EAM
Date of Last Update:

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

Qualified Individual:
/

/

/

/

/

/

/

/

/

/

/

/

/

/

/

/

/

/

N OTE : 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.


### 104 40 CFR Ch. I (7–1–15 Edition) Pt. 112, App. F

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 ofthe 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, considerationmust 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 helpfulto 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), thefacility 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). Thequalified 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 couldoccur. Hazard evaluation is a widely used industry practice that allows facility ownersor 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 aregood 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 evaluationalso 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 tothe 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 ofliquid 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 aseparate 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 andthe 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 atthe 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 wasoriginally 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


### 105 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 anddate 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 pointat the facility. The numbering scheme developed on the tables, or an equivalent system, must be used to identify each containmentarea. 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.

H AZARD I DENTIFICATION T ANKS 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

1 Tank = any container that stores oil. Attach as many sheets as necessary.

H AZARD I DENTIFICATION S URFACE I MPOUNDMENTS (SI S )

Date of Last Update:

llll

SI No. Substance Stored Quantity Stored (gallons) Surface Area/Year Maximum Capacity (gallons) Failure/Cause


### 106 40 CFR Ch. I (7–1–15 Edition) Pt. 112, App. F

2 Refer to the DOC/NOAA ‘‘Guidance for Facility and Vessel Response Plans: Fish and Wildlife and Sensitive Environments’’ (Seeappendix 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 depositedbeneath the surface of the water or upon adjoining shorelines. H AZARD I DENTIFICATION S URFACE I MPOUNDMENTS (SI S )—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 appropriatedistances from the facility to fish and wildlife and sensitive environments. Owners or operators can use a comparable formula thatis 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 mustbe 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, horizontalrange of a potential discharge, and vulnerability to natural disaster, and shall, as appropriate, incorporate other factors such astank 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.


### 107 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. Amulti-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 considerfactors 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 dischargevolume 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 worstcase 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 astanks that are designed, installed, and/or operated in such a manner that the multipletanks function as one storage unit (i.e., multiple tank volumes are equalized). In thissection 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. Forpurposes of the worst case discharge calculation, permanently manifolded oil storagetanks 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 andafter 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 mustbe 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.


### 108 40 CFR Ch. I (7–1–15 Edition) Pt. 112, App. F

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 ofthe 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 willuse, 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 theresponse 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 anddemonstration of adequate response capability are presented in appendix E to thispart. In addition, steps to expedite the cleanup of oil discharges must be discussed. At aminimum, 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.

O IL S PILL R ESPONSE —I MMEDIATE A CTIONS

1. Stop the product flow Act quickly to secure pumps, close valves,

etc. O IL S PILL R ESPONSE —I MMEDIATE A CTIONS — 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 materialsaccording 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:


### 109 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 operatormust meet the inspection and monitoring requirements for drainage contained in 40 CFR part 112, subparts A through C. A copy of thecontainment 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.

N OTE : The general permit for stormwaterdrainage 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 fordrills/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 includethe 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. Youmust 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 requirestwo-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 duringinspections and monitoring. Similar requirements exist in 40 CFR part 112, subparts A through C. Duplicate information from the SPCC Plan may be photocopied and insertedin this section. The inspection checklist consists of the following items:

T ANK I NSPECTION C HECKLIST

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.

T ANK /S URFACE I MPOUNDMENT I NSPECTION L OG

Inspector Tank or SI# Date Comments


### 110 40 CFR Ch. I (7–1–15 Edition) Pt. 112, App. F

T ANK /S URFACE I MPOUNDMENT I NSPECTION L OG —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 responseplan, 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.

R ESPONSE E QUIPMENT I NSPECTION L OG
[Use section 1.3.2 of the response plan as a checklist]

Inspector Date Comments


### 111 Environmental Protection Agency Pt. 112, App. F

R ESPONSE E QUIPMENT I NSPECTION L OG —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; andG. 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 duringinspections 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 PREPguidelines (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 PREPguidelines. 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, spillmanagement 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 tothe 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. QualifiedIndividual Notification Drill and Spill Management Team Tabletop Drill logs shall beprovided 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.


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

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 oroperators 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 facilityoperations, 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

P ERSONNEL R ESPONSE T RAINING L OG

Name Response training/date and number of hours Prevention training/date and number of hours

1.8.3.2 Discharge Prevention Meetings Logs

D ISCHARGE P REVENTION M EETING L OG

Date:

llllllllllllllllllll Attendees:

llllllllllllllllll

llllllllllllllllllllllll

llllllllllllllllllllllll llllllllllllllllllllllll

llllllllllllllllllllllll

llllllllllllllllllllllll

llllllllllllllllllllllll

llllllllllllllllllllllll

llllllllllllllllllllllll


### 113 Environmental Protection Agency Pt. 112, App. F

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 secondarycontainment before piping leaves the secondary containment area to connect to the transportation-related portion of thefacility (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 arerequired 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 becompleted 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 theResponse 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 isthe operator). Enter the operator of the facility if otherwise. If the owner/operator of


### 114 40 CFR Ch. I (7–1–15 Edition) Pt. 112, App. F

the facility is a corporation, enter the nameof 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 informationmay 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 allaboveground 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 appendixD, enter the amount of the worst case discharge in GALLONS.

(11) Facility Distance to Navigable Waters: Mark the appropriate line for the nearestdistance 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, markthe 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 tocalculate 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 PlanASTM: American Society of Testing Materials
bbls: Barrels bpd: Barrels per Day bph: Barrels per HourCHRIS: 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 MaterialsLEPC: 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 TeamRSPA: Research and Special Programs AdministrationSARA: Superfund Amendments and Reauthorization ActSERC: State Emergency Response Commission SDWA: Safe Drinking Water Act of 1986 SI: Surface ImpoundmentSPCC: Spill Prevention, Control, and Countermeasures
USCG: United States Coast Guard

4.0 References

CONCAWE. 1982. Methodologies for HazardAnalysis 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-AssistedProjects Near Hazardous Facilities: Acceptable Separation Distances from Explosiveand Flammable Hazards. Prepared by the Office of Environment and Energy, Environmental Planning Division, Department ofHousing 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


### 115 Environmental Protection Agency Pt. 112, App. F

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

3 For further description of fish and wildlife and sensitive environments, see Appendices I, II, and III to DOC/NOAA’s ‘‘Guidance for Facility and Vessel Response Plans: Fish and Wildlife and Sensitive Environments’’ (seeappendix 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. OilSpill 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.

A TTACHMENTS TO A PPENDIX F

Attachment F–1—Response Plan Cover Sheet

This cover sheet will provide EPA with basic information concerning the facility. Itmust 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 firstyear, with an average of 5 hours per response. This estimate includes time for reviewing instructions, searching existing datasources, 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 ProtectionAgency, 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.

G ENERAL I NFORMATION

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

llllllllLargest 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

A PPLICABILITY OF S UBSTANTIAL H ARM C RITERIA

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 2that 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 milliongallons and is the facility located at a distance 2 (as calculated using the appropriateformula 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

llllllllllllllllllllllDoes the facility have a total oil storage capacity greater than or equal to 1 milliongallons and is the facility located at a distance 2 (as calculated using the appropriateformula 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


### 116 40 CFR Ch. I (7–1–15 Edition) Pt. 112, App. G

No

llllllllllllllllllllll

Does the facility have a total oil storage capacity greater than or equal to 1 milliongallons 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 C ERTIFICATION

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]

A PPENDIX G TO P ART 112—T IER I Q UALIFIED F ACILITY SPCC P LAN


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### 138 40 CFR Ch. I (7–1–15 Edition) Pt. 113

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

113.5 Exclusions.

113.6 Effect on other laws.

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

S OURCE : 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 onshoreoil 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 andwhen 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


### 139 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 followingterms 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 singleFederal 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 ofwillful 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.

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


### 140 40 CFR Ch. I (7–1–15 Edition) § 116.1

E FFECTIVE D ATE N OTE : 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:

A UTHORITY : 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 incompliance 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 insuch 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 formexcept 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 totransport 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 orground water at a frequency and duration sufficient to support, and thatunder 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


### 141 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 purposesof 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 kindlocated 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 ornumbering, 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 of1974, or which may affect natural resources belonging to, appertaining to, orunder 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 thecontiguous 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 anynatural 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 politicalsubdivision 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]

E FFECTIVE D ATE N OTE : 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 susceptibleto 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;


### 142 40 CFR Ch. I (7–1–15 Edition) § 116.3, Nt.

(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 identifiedin 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 inparagraphs (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 asignificant nexus analysis. If waters identified in this paragraph are also an adjacent water under paragraph (1)(vi), they are anadjacent water and no case-specific significant nexus analysis is required.

(A) Prairie potholes. Prairie potholes are acomplex 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 shruband tree dominated wetlands found predominantly along the Central Atlantic coastal plain.

(D) Western vernal pools. Western vernal pools are seasonal wetlands located in partsof California and associated with topographic depression, soils with poor drainage, mild, wet winters and hot, dry summers.

(E) Texas coastal prairie wetlands. Texascoastal 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 identifiedin paragraphs (1)(i) through (iii) of this definition or within 4,000 feet of the high tide line or ordinary high water mark. Watersidentified in this paragraph shall not be combined with waters identified in paragraph (1)(vi) of this definition when performing asignificant nexus analysis. If waters identified in this paragraph are also an adjacent water under paragraph (1)(vi), they are anadjacent 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 stockwatering 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 dryland 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 donot meet the definition of tributary, nonwetland swales, and lawfully constructed grassed waterways; and

(G) Puddles. (iv) Groundwater, including groundwaterdrained 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


### 143 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 suchwater. 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 theordinary high water mark of a water identified in paragraphs (1)(i) through (v) of this definition. The entire water is neighboring ifa 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 orthrough another water (including an impoundment identified in paragraph (1)(iv) ofthis 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 physicalindicators demonstrate there is volume, frequency, and duration of flow sufficient to create a bed and banks and an ordinary highwater 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) ofthis 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 andan 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 withother 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 effectto 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 asignificant 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 significantnexus when any single function or combination of functions performed by the water, alone or together with similarly situatedwaters in the region, contributes significantly to the chemical, physical, or biological integrity of the nearest water identifiedin 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,


### 144 40 CFR Ch. I (7–1–15 Edition) § 116.4

(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 ofwater and indicated by physical characteristics such as a clear, natural line impressedon 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 tideline may be determined, in the absence of actual data, by a line of oil or scum alongshore objects, a more or less continuous deposit of fine shell or debris on the foreshoreor 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 containingthese 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.

T ABLE 116.4A—L IST OF H AZARDOUS S UBSTANCES

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 ...................... 1863634Ammonium 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


### 145 Environmental Protection Agency § 116.4

T ABLE 116.4A—L IST OF H AZARDOUS S UBSTANCES —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


### 146 40 CFR Ch. I (7–1–15 Edition) § 116.4

T ABLE 116.4A—L IST OF H AZARDOUS S UBSTANCES —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.


### 147 Environmental Protection Agency § 116.4

T ABLE 116.4A—L IST OF H AZARDOUS S UBSTANCES —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.


### 148 40 CFR Ch. I (7–1–15 Edition) § 116.4

T ABLE 116.4A—L IST OF H AZARDOUS S UBSTANCES —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.


### 149 Environmental Protection Agency § 116.4

T ABLE 116.4A—L IST OF H AZARDOUS S UBSTANCES —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.


### 150 40 CFR Ch. I (7–1–15 Edition) § 116.4

T ABLE 116.4A—L IST OF H AZARDOUS S UBSTANCES —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 ........................................................................... .

..................... ..................

T ABLE 116.4B—L IST OF H AZARDOUS S UBSTANCES BY CAS N UMBER

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 T ABLE 116.4B—L IST OF H AZARDOUS S UBSTANCES BY CAS N UMBER —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


### 151 Environmental Protection Agency § 116.4

T ABLE 116.4B—L IST OF H AZARDOUS S UBSTANCES BY CAS N UMBER —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 T ABLE 116.4B—L IST OF H AZARDOUS S UBSTANCES BY CAS N UMBER —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


### 152 40 CFR Ch. I (7–1–15 Edition) Pt. 117

T ABLE 116.4B—L IST OF H AZARDOUS S UBSTANCES BY CAS N UMBER —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 T ABLE 116.4B—L IST OF H AZARDOUS S UBSTANCES BY CAS N UMBER —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.


### 153 Environmental Protection Agency § 117.1

117.23 Liabilities for removal.

A UTHORITY : 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.

E FFECTIVE D ATE N OTE : 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:

A UTHORITY : 33 U.S.C. 1251 et seq. and Executive Order 11735, superseded by Executive Order 12777, 56 FR 54757.

S OURCE : 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 aviolation 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 areportable quantity of a hazardous substance.

(d) Public record means the NPDESpermit application or the NPDES permit itself and the materials comprisingthe 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 dischargelimits 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 orlocal 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 notconnected to a facility providing treatment. The term also means the municipality as defined in section 502(4) of theAct, 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 asmay 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 ofthe United States, including the territorial seas.’’ This term includes:

(1) All waters which are currently used, were used in the past, or may besusceptible 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 byinterstate 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


### 154 40 CFR Ch. I (7–1–15 Edition) § 117.1, Nt.

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 tosupport, 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 (otherthan 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 purposesof 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]

E FFECTIVE D ATE N OTE : At 80 FR 37112, June29, 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 susceptibleto 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 inparagraphs (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. Watersidentified in this paragraph shall not be combined with waters identified in paragraph (i)(1)(vi) of this section when performing asignificant nexus analysis. If waters identified in this paragraph are also an adjacent water under paragraph (i)(1)(vi), they are anadjacent water and no case-specific significant nexus analysis is required.

(A) Prairie potholes. Prairie potholes are acomplex 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 shruband tree dominated wetlands found predominantly along the Central Atlantic coastal plain.

(D) Western vernal pools. Western vernal pools are seasonal wetlands located in partsof California and associated with topographic depression, soils with poor drainage, mild, wet winters and hot, dry summers.

(E) Texas coastal prairie wetlands. Texascoastal 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 orordinary high water mark of a water identified in paragraphs (i)(1)(i) through (v) of thissection where they are determined on a casespecific basis to have a significant nexus to


### 155 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 watersidentified in paragraph (i)(1)(vi) of this section when performing a significant nexusanalysis. If waters identified in this paragraph are also an adjacent water under paragraph (i)(1)(vi), they are an adjacent waterand 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 stockwatering 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 dryland 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 donot meet the definition of tributary, nonwetland swales, and lawfully constructed grassed waterways; and

(G) Puddles. (v) Groundwater, including groundwaterdrained 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 theordinary high water mark of a water identified in paragraphs (i)(1)(i) through (v) of this section. The entire water is neighboring if aportion 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 orthrough another water (including an impoundment identified in paragraph (i)(1)(iv)


### 156 40 CFR Ch. I (7–1–15 Edition) § 117.2

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 physicalindicators demonstrate there is volume, frequency, and duration of flow sufficient to create a bed and banks and an ordinary highwater 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 andan 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 withother 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 tobe significant, it must be more than speculative or insubstantial. Waters are similarly situated when they function alike and aresufficiently close to function together in affecting downstream waters. For purposes of determining whether or not a water has asignificant 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 significantnexus when any single function or combination of functions performed by the water, alone or together with similarly situatedwaters 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 thissection. 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 inparagraphs (i)(1)(i) through (iii) of this section.

(vi) O rdinary high water mark. The term ordinary high water mark means that line on the shore established by the fluctuations ofwater and indicated by physical characteristics such as a clear, natural line impressedon 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 tideline may be determined, in the absence of actual data, by a line of oil or scum alongshore objects, a more or less continuous deposit of fine shell or debris on the foreshoreor berm, other physical markings or characteristics, vegetation lines, tidal gages, orother 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.


### 157 Environmental Protection Agency § 117.3

T ABLE 117.3—R EPORTABLE Q UANTITIES

OF H AZARDOUS S UBSTANCES D ES

IGNATED P URSUANT TO S ECTION 311 OF

THE C LEAN W ATER A CT

N OTE : The first number under the column headed ‘‘RQ’’ is the reportable quantity in pounds. The number in parentheses is themetric 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.

T ABLE 117.3—R EPORTABLE Q UANTITIES OF H AZARDOUS S UBSTANCES D ESIGNATED P URSUANT TO S ECTION 311 OF THE C LEAN W ATER A CT

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)


### 158 40 CFR Ch. I (7–1–15 Edition) § 117.3

T ABLE 117.3—R EPORTABLE Q UANTITIES OF H AZARDOUS S UBSTANCES D ESIGNATED P URSUANT TO S ECTION 311 OF THE C LEAN W ATER A CT —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)


### 159 Environmental Protection Agency § 117.3

T ABLE 117.3—R EPORTABLE Q UANTITIES OF H AZARDOUS S UBSTANCES D ESIGNATED P URSUANT TO S ECTION 311 OF THE C LEAN W ATER A CT —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)


### 160 40 CFR Ch. I (7–1–15 Edition) § 117.3

T ABLE 117.3—R EPORTABLE Q UANTITIES OF H AZARDOUS S UBSTANCES D ESIGNATED P URSUANT TO S ECTION 311 OF THE C LEAN W ATER A CT —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 .................... 1,00 0 (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)


### 161 Environmental Protection Agency § 117.11

T ABLE 117.3—R EPORTABLE Q UANTITIES OF H AZARDOUS S UBSTANCES D ESIGNATED P URSUANT TO S ECTION 311 OF THE C LEAN W ATER A CT —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 hazardousin 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 ofthe 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 Oiland 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


### 162 40 CFR Ch. I (7–1–15 Edition) § 117.12

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 modifiedunder 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 occurringwithin 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 aneffluent limitation specifically applicable to the substance discharged or aneffluent 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 modifiedunder 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 publicrecord 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 systemtreating 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 dischargefrom 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 whicha 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 producinga continuous or anticipated intermittent discharge where the upset or failure results from a control problem, anoperator 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 isnot 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


### 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 priorto accepting the substance from an industrial discharger, the substance hadbeen 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 thedischarge of designated hazardous substances in connection with research or demonstration projects relating to the prevention, control, or abatement ofhazardous substance pollution. The Administrator will allow such a dischargeonly where he determines that the expected environmental benefit fromsuch 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 forthin 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 116is 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 mitigatethe 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.

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

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


### 164 40 CFR Ch. I (7–1–15 Edition) § 121.1

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 followingterms 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 agencymeans 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 theRegional designee appointed by the Administrator, Environmental Protection Agency.

(e) Certifying agency means the person or agency designated by the Governorof a State, by statute, or by other governmental act, to certify compliancewith 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 orinterstate 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 meansstandards 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 certifyingagency has either (i) examined the application made by the applicant to thelicensing or permitting agency (specifically identifying the number or code affixed to such application) and bases its certification upon an evaluation ofthe information contained in such application which is relevant to water quality considerations, or (ii) examinedother 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 whichwill not violate applicable water quality standards;

(4) A statement of any conditionswhich 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 permittingagency, and the Regional Administrator.

§ 121.3 Contents of application.

A licensing or permitting agency shall require an applicant for a licenseor permit to include in the form of application such information relating to water quality considerations as may beagreed 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 permitwithout an accompanying certification, the licensing or permitting agency shall either: (1) Forward onecopy of the application to the appropriate certifying agency and two copies to the Regional Administrator, or (2) forward three copies of the applicationto the Regional Administrator, pursuant to an agreement between the licensing or permitting agency and the


### 165 Environmental Protection Agency § 121.16

Administrator that the Regional Administrator will transmit a copy of theapplication to the appropriate certifying agency. Upon subsequent receipt from an applicant of a certification, the licensing or permitting agencyshall forward a copy of such certification to the Regional Administrator,
unless such certification shall havebeen 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 agencyshall 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 theRegional Administrator by the licensing or permitting agency pursuant to§121.11 do not contain sufficient information for the Regional Administrator to make the determination providedfor in §121.13, the Regional Administrator may request, and the licensing or permitting agency shall obtain fromthe 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 121.12and 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 dateof receipt of the application and certification from the licensing or permitting agency as provided in §121.11, sonotify 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 tothe Regional Administrator by the licensing or permitting agency no later than 30 days prior to such hearing. The Regional Administrator shall at suchhearing 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 failureof the State or interstate agency concerned to act on such request for certification within a reasonable period of time after receipt of such request, asdetermined 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, shallconduct 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 afterthe date of receipt by the Regional Administrator of either notification referred to herein.


### 166 40 CFR Ch. I (7–1–15 Edition) § 121.21



### 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 permitwill 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 complianceonly with respect to those water quality standards promulgated by him; or

(b) Water quality standards havebeen 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 theRegional Administrator a complete description of the discharge involved in the activity for which certification is sought, with a request for certificationsigned 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 whichmay 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 andmeans 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 beconducted 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 theRegional 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 Administratordetermines 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 qualitystandards, he shall so certify. If the Regional Administrator determines thatno water quality standards are applicable to the waters which might be affected by the proposed activity, heshall so notify the applicant and the licensing or permitting agency in writing and shall provide the licensing orpermitting 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.


### 167 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 suchviolation, 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 Administratorwill 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, theRegional 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 Administratoror his representative, prior to the initial operation of such facility or activity, shall be afforded the opportunity to inspect such facility or activity forthe purpose of determining if the manner in which such facility or activitywill be operated or conducted will violate applicable water quality standards.

§ 121.27 Notification to licensing or permitting agency.

If the Regional Administrator, afteran inspection pursuant to §121.26, determines that operation of the proposed facility or activity will violate applicable water quality standards, heshall 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 permittingagency, 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 Administratorthat the facility or activity or the operation or conduct thereof has been
modified so as not to violate waterquality 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 standardswhere they have been federally approved under section 10 of the Act, and findings with respect to the applicationof all applicable water quality standards in particular cases and in specific circumstances relative to an activity


### 168 40 CFR Ch. I (7–1–15 Edition) Pt. 122

for which a license or permit is sought. The Regional Administrator may, andupon 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 NATIONALPOLLUTANT 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 applicationsand 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 toimplement 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).

A PPENDIX A TO P ART 122—NPDES P RIMARY I NDUSTRY C ATEGORIES A PPENDIX B TO P ART 122 [R ESERVED ]


### 169 Environmental Protection Agency § 122.1

A PPENDIX C TO P ART 122—C RITERIA FOR D E

TERMINING A C ONCENTRATED A QUATIC A NI

MAL P RODUCTION F ACILITY (§122.24)
A PPENDIX D TO P ART 122—NPDES P ERMIT A PPLICATION T ESTING R EQUIREMENTS (§122.21)
A PPENDIX E TO P ART 122—R AINFALL Z ONES OF

THE U NITED S TATES A PPENDIX F TO P ART 122—I NCORPORATED P LACES W ITH P OPULATIONS G REATER T HAN 250,000 A CCORDING TO THE 1990 D E

CENNIAL C ENSUS BY THE B UREAU OF THE C ENSUS A PPENDIX G TO P ART 122—I NCORPORATED P LACES W ITH P OPULATIONS G REATER T HAN 100,000 B UT L ESS T HAN 250,000 A C

CORDING TO THE 1990 D ECENNIAL C ENSUS

BY THE B UREAU OF THE C ENSUS A PPENDIX H TO P ART 122—C OUNTIES WITH U N

INCORPORATED U RBANIZED A REAS W ITH A P OPULATION OF 250,000 OR M ORE A CCORD

ING TO THE 1990 D ECENNIAL C ENSUS BY THE B UREAU OF THE C ENSUS A PPENDIX I TO P ART 122—C OUNTIES W ITH U N

INCORPORATED U RBANIZED A REAS G REAT

ER T HAN 100,000, B UT L ESS T HAN 250,000
A CCORDING TO THE 1990 D ECENNIAL C ENSUS

BY THE B UREAU OF THE C ENSUS A PPENDIX J TO P ART 122—NPDES P ERMIT T ESTING R EQUIREMENTS FOR P UBLICLY O WNED T REATMENT W ORKS (§122.21(j))

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

S OURCE : 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 lieuof a Federal program and minimum requirements for administering the approved State program (part 123 of thischapter), and procedures for EPA processing of permit applications and appeals (part 124 of this chapter).

(3) These provisions also establishthe requirements for public participation in EPA and State permit issuance
and enforcement and related variance proceedings, and in the approval ofState NPDES programs. These provisions carry out the purposes of the public participation requirements of part25 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 aremade 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 thefollowing 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 requirespermits 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


### 170 40 CFR Ch. I (7–1–15 Edition) § 122.2

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 anddisposal as a ‘‘treatment works treating domestic sewage’’ as defined in§122.2, where the Regional Administrator finds that a permit is necessaryto 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 designatedas a ‘‘treatment works treating domestic sewage’’ shall submit an application for a permit under §122.21 within 180 days of being notified by the RegionalAdministrator 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.

[N OTE TO §122.1: Information concerning the NPDES program and its regulations can be obtained by contacting the Water PermitsDivision(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 toparts 122, 123, and 124. Terms not defined in this section have the meaninggiven 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 standardnational forms for applying for a permit, including any additions, revisions or modifications to the forms; or forms approved by EPA for use in ‘‘approvedStates,’’ 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 havean approved pretreatment program (including such POTWs located in a Statethat has elected to assume local program responsibilities pursuant to 40 CFR 403.10(e)) and any other treatment


### 171 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 adverselyaffect 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 operatinghours 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 CleanWater Act (CWA) and applicable regulations promulgated thereunder. In the case of an approved State program, it includes State program requirements.

Daily discharge means the ‘‘dischargeof a pollutant’’ measured during a calendar day or any 24-hour period that reasonably represents the calendar dayfor purposes of sampling. For pollutants with limitations expressed in units of mass, the ‘‘daily discharge’’ iscalculated 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 thecontext 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 isan approved State program. (For example, when EPA has issued an NPDES permit prior to the approval of a State program, EPA may retain jurisdictionover 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 isbeing used as a means of transportation.

This definition includes additions of pollutants into waters of the United
States from: surface runoff which iscollected or channelled by man; discharges through pipes, sewers, or otherconveyances owned by a State, municipality, or other person which do notlead to a treatment works; and discharges through pipes, sewers, or other conveyances, leading into privately
owned treatment works. This termdoes 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.


### 172 40 CFR Ch. I (7–1–15 Edition) § 122.2

DMR means ‘‘Discharge Monitoring Report.’’

Draft permit means a document prepared under §124.6 indicating the Director’s tentative decision to issue ordeny, 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 andreissuance, 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 aregulation 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 oractivity (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 ofthe 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 anyIndian 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 Stateswhether 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 recognizedby 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 orunder an agreement or compact approved by the Congress, or any other agency of two or more States having substantial powers or duties pertainingto 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 limitationmeans the highest allowable ‘‘daily discharge.’’

Municipality means a city, town, borough, county, parish, district, association, or other public body created by orunder 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,


### 173 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 ‘‘indirectdischarger’’ which commences discharging into ‘‘waters of the UnitedStates’’ 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 acoastal oil and gas developmental drilling rig) such as a seafood processingrig, 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 orcoastal 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 areadetermined 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 areaof 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 withsection 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 thispart and parts 123 and 124. ‘‘Permit’’ includes an NPDES ‘‘general permit’’ (§122.28). Permit does not include anypermit 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, rollingstock, 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, solidwaste, incinerator residue, filter backwash, sewage, garbage, sewage sludge, munitions, chemical wastes, biologicalmaterials, 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, cellardirt and industrial, municipal, and agricultural waste discharged into water.
It does not mean:

(a) Sewage from vessels; or (b) Water, gas, or other materialwhich 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, ifthe well used either to facilitate production or for disposal purposes is approved by authority of the State in


### 174 40 CFR Ch. I (7–1–15 Edition) § 122.2

which the well is located, and if the State determines that the injection ordisposal will not result in the degradation of ground or surface water resources.

N OTE : Radioactive materials covered bythe 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 waterwhich, during manufacturing or processing, comes into direct contact with or results from the production or use ofany 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 finalissuance 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 theArmy, 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 tankwhen the system is cleaned or maintained.

Sewage from vessels means humanbody 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 includesgraywater. 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 practicemeans 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’’ isphysically 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 tosection 405(d) of the CWA and is required to obtain a permit under §122.1(b)(2).


### 175 Environmental Protection Agency § 122.2

Standards for sewage sludge use or disposal means the regulations promulgated pursuant to section 405(d) of theCWA which govern minimum requirements for sludge quality, managementpractices, 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, theDistrict of Columbia, Guam, the Commonwealth of Puerto Rico, the VirginIslands, 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 ‘‘approvedprogram,’’ or the delegated representative of the State Director. If responsibility is divided among two or moreState or interstate agencies, ‘‘State Director’’ means the chief administrativeofficer of the State or interstate agency authorized to perform the particularprocedure or function to which reference is made.

State/EPA Agreement means an agreement between the Regional Administrator and the State which coordinatesEPA 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 totaldissolved (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 sewagesludge 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 wherethere 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 theapplicable ‘‘effluent limitations guidelines’’ which allows modification to orwaiver of the generally applicable effluent limitation requirements or timedeadlines 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 besusceptible 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


### 176 40 CFR Ch. I (7–1–15 Edition) § 122.2, Nt.

1 E DITORIAL N OTE : 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 byinterstate 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 inparagraphs (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 theUnited 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 orgroundwater at a frequency and duration sufficient to support, and thatunder 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.

N OTE : 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]

E FFECTIVE D ATE N OTE : At 80 FR 37114, June 29, 2015, §122.2 was amended by lifting thesuspension 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 susceptibleto 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


### 177 Environmental Protection Agency § 122.2, Nt.

determined, on a case-specific basis, to have a significant nexus to a water identified inparagraphs (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 asignificant nexus analysis. If waters identified in this paragraph are also an adjacent water under paragraph (1)(vi), they are anadjacent water and no case-specific significant nexus analysis is required.

(A) Prairie potholes. Prairie potholes are acomplex 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 shruband tree dominated wetlands found predominantly along the Central Atlantic coastal plain.

(D) Western vernal pools. Western vernal pools are seasonal wetlands located in partsof California and associated with topographic depression, soils with poor drainage, mild, wet winters and hot, dry summers.

(E) Texas coastal prairie wetlands. Texascoastal 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 orwithin 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 waterand 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 stockwatering 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 dryland 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 donot meet the definition of tributary, nonwetland swales, and lawfully constructed grassed waterways; and

(G) Puddles. (v) Groundwater, including groundwaterdrained 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.


### 178 40 CFR Ch. I (7–1–15 Edition) § 122.2, Nt.

(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 suchwater. 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 theordinary high water mark of a water identified in paragraphs (1)(i) through (v) of this definition. The entire water is neighboring ifa 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 orthrough another water (including an impoundment identified in paragraph (1)(iv) ofthis 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 physicalindicators demonstrate there is volume, frequency, and duration of flow sufficient to create a bed and banks and an ordinary highwater 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) ofthis 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 andan 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 withother 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 effectto 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 asignificant 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 significantnexus when any single function or combination of functions performed by the water, alone or together with similarly situatedwaters in the region, contributes significantly to the chemical, physical, or biological integrity of the nearest water identifiedin 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


### 179 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 inparagraphs (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 ofwater and indicated by physical characteristics such as a clear, natural line impressedon 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 tideline may be determined, in the absence of actual data, by a line of oil or scum alongshore objects, a more or less continuous deposit of fine shell or debris on the foreshoreor berm, other physical markings or characteristics, vegetation lines, tidal gages, orother 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, andgalley sink wastes, or any other discharge incidental to the normal operation of a vessel. This exclusion does not apply to rubbish, trash, garbage, orother such materials discharged overboard; nor to other discharges when the vessel is operating in a capacityother 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 whensecured 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 intopublicly 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 withpermits until all discharges of pollutants to waters of the United States are eliminated. (See also §122.47(b)). Thisexclusion does not apply to the introduction of pollutants to privately
owned treatment works or to other discharges through pipes, sewers, or otherconveyances 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 CFR153.10(e) (Pollution by Oil and Hazardous Substances).

(e) Any introduction of pollutants from non point-source agricultural and silvicultural activities, includingstorm water runoff from orchards, cultivated crops, pastures, range lands, and forest lands, but not dischargesfrom concentrated animal feeding operations as defined in §122.23, dischargesfrom 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 ownedtreatment 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 thetransferred water to intervening industrial, municipal, or commercial use.This exclusion does not apply to pollutants introduced by the water transfer


### 180 40 CFR Ch. I (7–1–15 Edition) § 122.4

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 conditionscannot 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 inconsistentwith a plan or plan amendment approved under section 208(b) of CWA;

(h) For any discharge to the territorial sea, the waters of the contiguouszone, 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 contiguouszone, and the oceans) unless the Director determines permit issuance to be in the public interest; or

(2) After promulgation of guidelinesunder section 403(c) of CWA, when insufficient information exists to make areasonable 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 waterquality standards. The owner or operator of a new source or new discharger proposing to discharge into a watersegment 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, andfor 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 complianceschedules designed to bring the segment into compliance with applicable water quality standards. The Directormay 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 itsterm constitutes compliance, for purposes of enforcement, with sections 301, 302, 306, 307, 318, 403, and 405 (a)–(b) ofCWA. 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


### 181 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 whichis a complete (under §122.21(e)) application for a new permit; and

(2) The Regional Administrator, through no fault of the permittee doesnot 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 permitteeis 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 basedupon the permit which has been continued;

(2) Issue a notice of intent to denythe new permit under §124.6. If the permit is denied, the owner or operatorwould then be required to cease the activities authorized by the continuedpermit 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 isthe 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 lawallows. 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 beclaimed 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 forthe 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.


### 182 40 CFR Ch. I (7–1–15 Edition) § 122.21



### 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 whodischarges or proposes to discharge pollutants or who owns or operates a ‘‘sludge-only facility’’ whose sewagesludge 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 resourcecenter 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 informationcontained 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 industrialfacilities (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 stormwater 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 NPDESpermitting 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 thedate 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


### 183 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 underthe 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 permitapplications 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 1year 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 suchTWTDS 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. Unlessthe sewage sludge meets the requirements of paragraph (q)(8)(iv) of this section, the description must include the name and address of any facilitywhere 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 applicationsfrom any TWTDS at any time if the Director determines that a permit is necessary to protect public health and theenvironment 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 sludgeuse or disposal’’ must submit an application to the Director at least 180 daysprior 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 alater date has been granted by the Director. (The Director shall not grantpermission for applications to be submitted later than the expiration date of the existing permit.)

(2) All other permittees with currently effective permits shall submit anew application 180 days before the existing permit expires, except that:

(i) The Regional Administrator maygrant 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 Directorshall not issue a permit before receiving a complete application for a permit except for NPDES general permits. An application for a permit is completewhen 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 beconsidered complete if a permitting authority has waived application requirements under paragraphs (j) or (q) of


### 184 40 CFR Ch. I (7–1–15 Edition) § 122.21

this section and EPA has disapprovedthe waiver application. If a waiver request has been submitted to EPA morethan 210 days prior to permit expiration and EPA has not disapproved the waiver application 181 days prior topermit expiration, the permit application lacking the information subject tothe waiver application shall be considered complete.

(3) Except as specified in 122.21(e)(3)(ii), a permit application shall not be considered complete unlessall 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 CFRpart 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 themeasured pollutant or pollutant parameter; or

(B) The method ML is above the applicable water quality criterion, butthe amount of the pollutant or pollutant parameter in a facility’s discharge is high enough that the method detectsand 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.

N OTE TO PARAGRAPH (e)(3)(i): Consistentwith 40 CFR part 136, applicants have the option of providing matrix or sample specific minimum levels rather than the publishedlevels. Further, where an applicant can demonstrate that, despite a good faith effort to
use a method that would otherwise meet thedefinition of ‘‘sufficiently sensitive’’, the analytical results are not consistent with the QA/QC specifications for that method, then the Director may determine that the methodis 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 suitablemethod, 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 thanPOTWs 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 bestreflect 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 appliedfor 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.


### 185 Environmental Protection Agency § 122.21

(ix) Other relevant environmental permits, including State permits.

(7) A topographic map (or other mapif a topographic map is unavailable) extending one mile beyond the property boundaries of the source, depicting thefacility and each of its intake and discharge structures; each of its hazardous waste treatment, storage, or disposal facilities; each well wherefluids 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 forNPDES permits, except for those facilities subject to the requirements of §122.21(h), shall provide the followinginformation 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 facilitywith 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 flowsat 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 ofwater 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 adescription of the treatment the wastewater receives, including the ultimate disposal of any solid or fluid wastesother than by discharge. Processes, operations, or production areas may bedescribed 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 (orother 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 theactual 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 ofthe 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 pollutantsspecified 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, theapplicant 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


### 186 40 CFR Ch. I (7–1–15 Edition) § 122.21

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 ormore 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 identicaloutfall. The requirements in paragraphs (g)(7)(vi) and (vii) of this section state that an applicant must providequantitative 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 forthose pollutants. For all other pollutants, a 24-hour composite sample, using a minimum of four (4) grab samples, must be used unless specified otherwiseat 40 CFR Part 136. However, a minimum of one grab sample may be taken for effluents from holding ponds or other impoundments with a retentionperiod greater than 24 hours. In addition, for discharges other than storm water discharges, the Director maywaive composite sampling for any outfall for which the applicant demonstrates that the use of an automaticsampler is infeasible and that the minimum of four (4) grab samples will be a representative sample of the effluent being discharged. Results of analyses ofindividual grab samples for any parameter may be averaged to obtain the daily average. Grab samples that arenot 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)) andthat 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 0.1inch 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 dischargesunder §122.26(d) may collect flowweighted composite samples using different protocols with respect to the
time duration between the collectionof 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 compositesample, only one analysis of the composite of aliquots is required. For storm water discharge samples takenfrom 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


### 187 Environmental Protection Agency § 122.21

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 expecteduse, production, or storage of the pollutant, or on any previous analyses forthe pollutant. (For example, any pesticide manufactured by a facility maybe expected to be present in contaminated storm water runoff from the facility.)

(iii) Reporting requirements. Every applicant must report quantitative datafor 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 individualpoint sources or for a particular industry category for one or more of the pollutants listed in paragraph (g)(7)(iii) ofthis section if the applicant has demonstrated that such a waiver is appropriate because information adequate tosupport 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 ofappendix 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 Dof this part lists the organic toxic pollutants in each fraction. The fractionsresult from the sample preparation required by the analytical procedure which uses gas chromatography/mass spectrometry. A determination that anapplicant falls within a particular industrial category for the purposes of selecting fractions for testing is notconclusive 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 intable IV of appendix D of this part (certain conventional and nonconventional pollutants) is discharged from eachoutfall. If an applicable effluent limitations guideline either directly limits the pollutant or, by its express terms, indirectly limits the pollutant throughlimitations 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 fourpollutants are expected to be discharged in concentrations of 100 ppb or greater the applicant must report quantitative data. For every pollutantexpected 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 eithersubmit 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


### 188 40 CFR Ch. I (7–1–15 Edition) § 122.21

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 intable 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 anyquantitative 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 theapplicant currently uses or manufactures as an intermediate or final product or byproduct. The Director may waive or modify this requirement forany 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 testswhich the applicant knows or has reason to believe have been made withinthe 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 contractlaboratory 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 theapplication form, applicants shall provide to the Director, at his or her request, such other information as theDirector may reasonably require to assess the discharges of the facility and
to determine whether to issue anNPDES permit. The additional information may include additional quantitative data and bioassays to assess the relative toxicity of discharges toaquatic 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 forstormwater 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, includingsanitary wastes, restaurant or cafeteria wastes, or noncontact cooling water. An identification of cooling water additives (if any) that are used


### 189 Environmental Protection Agency § 122.21

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 iswaived 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 applicantmust collect and analyze samples in accordance with 40 CFR Part 136. When analysis of pH, temperature, residualchlorine, 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 offour (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 includeestimates 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 (BOD 5 ).

(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 anyof 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 informationadequate 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)) byproviding quantitative data in accordance with that section no later thantwo years after commencement of discharge. However, the applicant need not complete those portions of Item IV requiring tests which he has alreadyperformed and reported under the discharge monitoring requirements of his NPDES permit.

(iv) The requirements of parts i and iii of this section that an applicantmust provide quantitative data or estimates of certain pollutants do notapply 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:


### 190 40 CFR Ch. I (7–1–15 Edition) § 122.21

(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 theproduction area (entrance to production area);

(iv) A topographic map of the geographic area in which the CAFO is located showing the specific location ofthe 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 andstorage (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 thatat a minimum satisfies the requirements specified in §122.42(e), including, for all CAFOs subject to 40 CFR part412, 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 otherwiseindicated, all POTWs and other dischargers designated by the Directormust 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 hasaccess to substantially identical information. The Director may also waive any requirement of this paragraph that is not of material concern for a specificpermit, 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 waiverdoes 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 Managementprogram under the Resource Conservation and Recovery Act (RCRA), Subpart C;


### 191 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 servedby the facility, including unincorporated connector districts. Indicate whether each municipal entity owns or maintains the collection system andwhether the collection system is separate sanitary or combined storm and sanitary, if known;

(v) Indian country. Information concerning whether the facility is locatedin 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 theplant 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 numberand 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 theorganization 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 currentaverage daily volume of inflow and infiltration, in gallons per day, and stepsthe facility is taking to minimize inflow and infiltration;


### 192 40 CFR Ch. I (7–1–15 Edition) § 122.21

(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 thetreatment plant are injected underground;

(D) Wells, springs, and other surface water bodies listed in public records orotherwise 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 ofthe treatment plant, including all bypass piping and all backup power sources or redundancy in the system. This includes a water balance showingall 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 equippedwith 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/streamsystem 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 isprovided for the discharge for each outfall and:


### 193 Environmental Protection Agency § 122.21

( 1 ) Design biochemical oxygen demand (BOD 5 or CBOD 5 ) 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 forCSOs. 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 moreoutfalls 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 andanalyze 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 thispart. 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 flowrate equal to or greater than one million gallons per day;

(B) All POTWs with approvedpretreatment 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 yearsprior 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 shouldrequire 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 bythe 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 isspecified 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 compositesample, only one analysis of the composite of aliquots is required.

(ix) The effluent monitoring dataprovided 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


### 194 40 CFR Ch. I (7–1–15 Edition) § 122.21

(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 theapplicant’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 eachoutfall 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 approvedpretreatment 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 POTWeffluent (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 thereceiving 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 atthe POTW) that the Director determines could cause or contribute to adverse water quality impacts. (iii) Where the POTW has two ormore outfalls with substantially identical effluent discharging to the same receiving stream segment, the Director may allow applicants to submit wholeeffluent 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 onehalf year period prior to the application, provided the results show no appreciable toxicity using a safety factordetermined 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 chronictesting 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


### 195 Environmental Protection Agency § 122.21

Director, or test summaries if available and comprehensive, for each wholeeffluent toxicity test conducted pursuant to paragraph (j)(5)(ii) of this section for which such information hasnot 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 inWashington, 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 ofthe application, applicants must provide the dates on which the data weresubmitted and a summary of the results.

(x) Each POTW required to performwhole effluent toxicity testing pursuant to paragraph (j)(5)(ii) of this section must provide any information onthe cause of toxicity and written details of any toxicity reduction evaluation conducted, if any whole effluent toxicity test conducted within the pastfour 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, underwhich category(ies) and subcategory(ies); and

(G) Whether any problems at thePOTW (e.g., upsets, pass through, interference) have been attributed to the SIU in the past four and one-half years.

(iii) The information required inparagraphs (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 wastegenerators and from waste cleanup or remediation sites. POTWs receiving Resource Conservation and Recovery Act(RCRA), Comprehensive Environmental Response, Compensation, andLiability 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 andamount 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’shazardous constituents, as listed in appendix VIII of part 261 of this chapter; if known; and


### 196 40 CFR Ch. I (7–1–15 Edition) § 122.21

(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 systemsmust 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 trunklines, 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 forNPDES 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


### 197 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 willreceive, 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 theexpected discharges will be intermittent or seasonal, a description of the frequency, duration and maximumdaily 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 productionreported 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 thesepollutants 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 theapplicant knows or has reason to believe they will be present or if they arelimited 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 ofappendix 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 bepresent in the discharges from any outfall:

(A) The pollutants listed in table III of appendix D (the toxic metals, in thedischarge from any outfall: Total cyanide, and total phenols);

(B) The organic toxic pollutants in table II of appendix D (except bis (chloromethyl) ether,
dichlorofluoromethane andtrichlorofluoromethane). 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


### 198 40 CFR Ch. I (7–1–15 Edition) § 122.21

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 arerequired unless they are already available).

(vi) No later than two years after the commencement of discharge from theproposed 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 ofItem V requiring tests which he has already performed and reported under the discharge monitoring requirements of his NPDES permit.

(6) Engineering Report. Each applicantmust 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 anapproved 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 whichmay be a new source must submit information to the Regional Administrator so that he or she can determineif 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 30days 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 afinal 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) mayrequest a variance from otherwise applicable effluent limitations under anyof 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


### 199 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 onan effluent limitation guideline promulgated before February 4, 1987, to the extent July 3, 1989 is not later thanthat provided under previously promulgated regulations; or

( 2 ) 180 days after the date on whichan effluent limitation guideline is published in the F EDERAL R EGISTER for a request based on an effluent limitationguideline promulgated on or after February 4, 1987.

(ii) The request shall explain how therequirements 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 anyother 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 asection 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 effluentlimitation 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 publiccomment period under §124.10 demonstrating that the requirements of §124.13 and the applicable requirementsof part 125 have been met. Notwithstanding this provision, the complete application for a request under section 301(g) shall be filed 180 days before EPAmust 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 oneffluent 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 section302(a) for achieving water quality related effluent limitations may be requested no later than the close of the public comment period under §124.10 onthe permit from which the modification is sought.

(6) Thermal discharges. A varianceunder 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 filedby the close of the public comment period under §124.10. A copy of the request as required under 40 CFR part125, subpart H, shall be sent simultaneously to the appropriate State orinterstate 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 thefollowing 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


### 200 40 CFR Ch. I (7–1–15 Edition) § 122.21

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 section302(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 onthe 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 Directormay 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 havebeen met and may require its submission within a specified reasonable time after receipt of the notice. The noticemay be sent before the permit application has been submitted. The draft orfinal permit may contain the alternative limitations which may becomeeffective 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 alldata 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 applicationform approved by the Director. New applicants must submit all informationavailable 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 notof 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 waiverdoes 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 applicantsmust 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 applicantsmust submit the facility’s NPDES permit number, if applicable, and a listing of all other Federal, State, and localpermits or construction approvals received or applied for under any of the following programs:

(i) Hazardous Waste Managementprogram under the Resource Conservation and Recovery Act (RCRA);

(ii) UIC program under the Safe Drinking Water Act (SDWA);


### 201 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 environmentalpermits, including State or local permits;

(4) Indian country. All applicantsmust 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 (orother 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, ortreating sewage sludge, the destination(s) of all liquids and solids leaving each such unit, and all processes usedfor pathogen reduction and vector attraction reduction;

(7) Sewage sludge quality. The applicant must submit sewage sludge monitoring data for the pollutants for whichlimits 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 yearsprior to the date of the permit application. Samples must be representative of the sewage sludge and should betaken 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 providedmust 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 drymetric 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 treatmentprocesses occurring at the other facility, including blending activities andtreatment 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 CFR503.32(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


### 202 40 CFR Ch. I (7–1–15 Edition) § 122.21

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 thevector 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) ofthis 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) ofthis 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 tothis paragraph that the applicant provides to the receiving facility;

(C) A description of any treatmentprocesses 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 applicantis 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 inbulk 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 whoapplies 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 onthe 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 describeshow the site will be managed, as specified by the permitting authority.

(iv) The following information for each land application site that has


### 203 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 phonenumber of a contact person at the permitting authority;

(B) Identification of facilities other than the applicant’s facility that havesent, or are sending, sewage sludge subject to the cumulative pollutant loading rates in §503.13(b)(2) to the sitesince 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 siteshave 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 applicantmust 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 receivingsewage 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 fromthe 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, includingwhether 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 propertyline 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:


### 204 40 CFR Ch. I (7–1–15 Edition) § 122.21

( 1 ) The name, contact person, and mailing address of the facility; and

( 2 ) Available information regardingthe quality of the sewage sludge received from the facility, including any treatment at the facility to reducepathogens 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 theactive 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 sludgeunit, information to support such a request;

(11) Incineration. If sewage sludge from the applicant’s facility is fired ina sewage sludge incinerator, the applicant must provide the following information:

(i) The total dry metric tons of sewage sludge from the applicant’s facilitythat 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 telephonenumber of the sewage sludge incinerator; and

(B) The total dry metric tons fromthe 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 thelocation 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 wellas performance test results and supporting documentation;

(H) Information used to calculate the risk specific concentration (RSC) forchromium, 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 obtainedduring 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 feedrate submitted is average use or maximum design; and


### 205 Environmental Protection Agency § 122.21

( 3 ) A description of how the feed rate was calculated;

(M) The incinerator stack height inmeters 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 sewagesludge 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 municipalsolid 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 thesewage sludge meets applicable requirements for disposal of sewagesludge 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, indicatingwhether 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 requestof 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 theyapply 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/MSfractions 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 pesticidefraction 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 pesticidefraction in the Papergrade Sulfite subcategories (subparts J and U) of the Pulp and Paper industry (40 CFR part 430); testing and


### 206 40 CFR Ch. I (7–1–15 Edition) § 122.21

1 E DITORIAL N OTE : 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 (subpartF), 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 aspart 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 operatorof an existing facility intends to comply with the BTA (best technology available) standards for entrainmentusing 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 theDirector 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 CFR125.94(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 thenew unit. Requests for alternative requirements under 40 CFR 125.94(e)(2) or 125.98(b)(7) must be submitted with thepermit application. If the total capacity of the facility will increase to morethan 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


### 207 Environmental Protection Agency § 122.21

comply with the BTA (best technology available) standards for entrainmentusing 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 butwithin 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 scaleddrawings showing the physical configuration of all source water bodies usedby 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’shydrological and geomorphological features, as well as the methods you usedto 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 locationalmaps providing information on predicted locations within the waterbody during the permit term in sufficient detail for the Director to determine theappropriateness 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 waterintake 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 allsources 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 informationin 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 relativeabundance in the vicinity of the cooling water intake structure;

(iii) Identification of the species andlife stages that would be most susceptible to impingement and entrainment. Species evaluated should include theforage base as well as those most important in terms of significance to commercial and recreational fisheries;


### 208 40 CFR Ch. I (7–1–15 Edition) § 122.21

(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., feedingand 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 publicparticipation 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 usingfield studies, supporting documentation for the Source Water Baseline Biological Characterization must includea 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 lifestages of fish and shellfish); and sampling and data analysis methods. The sampling and/or data analysis methods you use must be appropriate for aquantitative 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 anexisting 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 anexisting 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 arenot 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 anexisting facility that has obtained incidental take exemption or authorizationfor 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 tosatisfy the permit application information requirement of paragraph 40 CFR 125.95(f) if included in the application.

(5) Cooling Water System Data. Theowner 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 theyear 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 graywater 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 thatis 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


### 209 Environmental Protection Agency § 122.21

of their performance, including but not limited to reductions in impingementmortality 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 compliancemethod 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 BTAdetermination 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 40CFR 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 biologicaldata 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 operationhas 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. Adescription of any biological data collection and data collection approachused in measuring impingement mortality must be included:

(A) Collecting data no less frequentlythan 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 mortalitydue to holding times is taken into account;

(F) If the facility entraps fish orshellfish, 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 biologicaldata 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 applicantmust document how each system element contributes to the system’s performance. The applicant must include a minimum of two years of biologicaldata measuring the reduction in impingement mortality achieved by thesystem. The applicant must also include a description of any sampling ordata 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 impingementin the system, the applicant must provide an estimate of those reductions tobe used as credit towards reducing impingement mortality, and any relevant supporting documentation, including previously collected biological data, performance reviews, and previouslyconducted 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 andrepresentative of conditions at the facility and explain how the data should be interpreted using the definitions of impingement and entrapment at 40


### 210 40 CFR Ch. I (7–1–15 Edition) § 122.21

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 yearsof 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 mortalityalready obtained at the facility, the applicant must include two years of biological data collection demonstrating the level of impingement mortality thesystem 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 alreadysubmitted to the Director. The applicant must provide a description of any sampling or data collection approachused in measuring impingement mortality. In addition, for this demonstration the applicant must:

( 1 ) Collect data no less frequentlythan monthly. The Director may establish more frequent data collection;

( 2 ) Conduct biological data collectionthat 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 areaccounted 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, asdefined 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 orintermittent. The applicant must document how the flow reduction results in reduced impingement. In addition, theapplicant 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 allsupporting calculations. The total system performance is the combination ofthe 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 obtainedfrom 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 explanationas 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


### 211 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 (orequivalent) for the previous 5 years, including any extended or unusual outages that significantly affect currentdata 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 blockcontiguous period, and any major upgrades completed within the last 15 years, including but not limited toboiler 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 therequirements of 40 CFR 125.94(c), descriptions of individual production processes and product lines, operatingstatus 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 orschedules 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 greaterthan 125 mgd AIF, where the withdrawal of cooling water is measured ata location within the cooling water intake structure that the Director deemsappropriate, 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 intakestructure(s) and are susceptible to entrainment, including any organismsidentified by the Director, and any species protected under Federal, State, orTribal law, including threatened or endangered species with a habitat range that includes waters in the vicinity ofthe 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 mustidentify 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, orTribal 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 mayinclude historical data that are representative of the current operation of the facility and of biological conditions
at the site. Identification of all lifestages of fish and shellfish must include identification of any surrogate species used, and identification of datarepresenting both motile and nonmotile life-stages of organisms;

(iii) Analysis and Supporting Documentation. Documentation of the current entrainment of all life stages of


### 212 40 CFR Ch. I (7–1–15 Edition) § 122.21

fish, shellfish, and any species protected under Federal, State, or Triballaw (including threatened or endangered species). The documentation mayinclude historical data that are representative of the current operation of the facility and of biological conditionsat the site. Entrainment data to support the facility’s calculations must becollected 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 alongwith 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 collectionand data analysis methods must be appropriate for a quantitative survey.

(10) Comprehensive Technical Feasibility and Cost Evaluation Study. Theowner or operator of an existing facility that withdraws greater than 125 mgd AIF must develop for submission to the Director an engineering study ofthe technical feasibility and incremental costs of candidate entrainment control technologies. In addition, the study must include the following:

(i) Technical feasibility. An evaluationof 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 suchas natural draft cooling towers, mechanical draft cooling towers, hybriddesigns, 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 ofall 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. Theapplicant must separately discuss facility level compliance costs and social costs, and provide documentation as
follows:

(A) Compliance costs are calculatedas after-tax, while social costs are calculated as pre-tax. Compliance costs include the facility’s administrativecosts, 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 regardingdepreciation 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 inparagraphs (r)(10)(i) and (ii) of this section, including but not limited to relocation of existing buildings or equipment, reinforcement or upgrading of


### 213 Environmental Protection Agency § 122.21

existing equipment, and additional construction and operating permits. Assumptions regarding depreciation schedules, interest rates, discountrates, 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. Theowner 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 mustbe described narratively, and when possible, benefits should be quantified inphysical 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 lostdue 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 effortscompleted 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 AIFmust develop for submission to the Director a detailed facility-specific discussion of the changes in non-waterquality environmental and other impacts attributed to each technology and operational measure considered inparagraph (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 onprocess 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 isrequired 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


### 214 40 CFR Ch. I (7–1–15 Edition) § 122.22

of the peer review. The Director may disapprove of a peer reviewer or require additional peer reviewers. The Director may confer with EPA, Federal, Stateand Tribal fish and wildlife management agencies with responsibility for fish and wildlife potentially affected by the cooling water intake structure, independent system operators, andstate public utility regulatory agencies, to determine which peer reviewcomments 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 owneror 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 reductionthat 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 foreach new unit would result in compliance costs wholly out of proportion to
the costs EPA considered in establishing the requirements at issue, orwould result in significant adverse impacts on local air quality, significantadverse 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]

E DITORIAL N OTE : For F EDERAL R EGISTER 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 ofthis 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 whoperfoms 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 makingmajor capital investment recommendations, and initiating and directingother 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 managerin accordance with corporate procedures.

N OTE : 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 therequisite authority to sign permit applications unless the corporation has notified theDirector 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) asenior executive officer having responsibility for the overall operations of a


### 215 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 theDirector shall be signed by a person described in paragraph (a) of this section, or by a duly authorized representativeof 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 eitheran individual or a position having responsibility for the overall operation of the regulated facility or activity suchas 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 adifferent individual or position has responsibility for the overall operation ofthe facility, a new authorization satisfying the requirements of paragraph (b)
of this section must be submitted to the Director prior to or together withany 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 preparedunder 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, andcomplete. 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 inparagraph (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 definedas a CAFO for at least one type of animal, the NPDES requirements forCAFOs apply with respect to all animals in confinement at the operation and all manure, litter, and process wastewater generated by those animalsor 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 isdefined 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 tobe 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.


### 216 40 CFR Ch. I (7–1–15 Edition) § 122.23

(3) The term land application area
means land under the control of an AFO owner or operator, whether it isowned, rented, or leased, to which manure, litter or process wastewater fromthe 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 maturedairy 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 AFOuses 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 AFOuses 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 contactwith 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.


### 217 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 limitedto 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 productionarea 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 bythe State Director. The Regional Administrator may also designate CAFOs in approved States, but only where theRegional Administrator has determined that one or more pollutants in the AFO’s discharge contributes to animpairment 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 nothave 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, theState 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 underthis paragraph unless the State Director or the Regional Administrator has conducted an on-site inspection of theoperation 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 notdischarge unless the discharge is authorized by an NPDES permit. In order
to obtain authorization under anNPDES 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


### 218 40 CFR Ch. I (7–1–15 Edition) § 122.23

§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 anindividual permit must include the information specified in §122.21. A noticeof 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 resultof 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 nutrientmanagement 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 areasunder the control of a CAFO is an agricultural stormwater discharge.

(1) For unpermitted Large CAFOs, aprecipitation-related discharge of manure, litter, or process wastewater
from land areas under the control of aCAFO shall be considered an agricultural stormwater discharge only wherethe 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) CAFOowners 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 intentsubmitted 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 intentor 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 theCAFO 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 incorporatedinto 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 124.11through 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 theCAFO owner or operator under the general permit, the terms of the nutrient


### 219 Environmental Protection Agency § 122.26

management plan shall become incorporated as terms and conditions of the permit for the CAFO. The Directorshall notify the CAFO owner or operator and inform the public that coverage has been authorized and of the terms of the nutrient managementplan 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 grantcoverage 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 andof 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 Cof 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 facilityupon 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 thefacility 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 pollutantsinto 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 ensurethat specific individual organisms comprising an aquaculture crop will enjoy increased growth attributable to thedischarge 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:


### 220 40 CFR Ch. I (7–1–15 Edition) § 122.26

(i) A discharge with respect to whicha 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 designationmay 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 determinationthe 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, rawmaterial, intermediate products, finished product, byproduct, or wasteproducts 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 fieldactivities 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.

N OTE TO PARAGRAPH (a)(2)(ii): EPA encourages operators of oil and gas field activities or operations to implement and maintainBest Management Practices (BMPs) to minimize discharges of pollutants, including sediment, in storm water both during and afterconstruction 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 designcriteria 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 dischargesfrom large and medium municipal separate storm sewer systems.

(ii) The Director may either issue onesystem-wide permit covering all discharges from municipal separate stormsewers within a large or medium municipal storm sewer system or issuedistinct permits for appropriate categories of discharges within a large or medium municipal separate stormsewer system including, but not limited to: all discharges owned or operated by the same municipality; locatedwithin the same jurisdiction; all discharges within a system that discharge to the same watershed; dischargeswithin a system that are similar in nature; or for individual discharges frommunicipal separate storm sewers within the system.

(iii) The operator of a discharge from a municipal separate storm sewerwhich is part of a large or medium municipal separate storm sewer system
must either:


### 221 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 authorityover a storm water management program that is in existence, or shall be inexistence 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 municipalseparate storm sewers within the systems described in paragraphs (b)(4) (i), (ii), and (iii) or (b)(7) (i), (ii), and (iii) ofthis 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 allmunicipal 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 separatestorm sewers in adjacent or interconnected large or medium municipal separate storm sewer systems.

(v) Permits for all or a portion of alldischarges from large or medium municipal separate storm sewer systemsthat are issued on a system-wide, jurisdiction-wide, watershed or other basismay specify different conditions relating to different discharges covered bythe permit, including different management programs for different drainage areas which contribute storm water to the system. (vi) Co-permittees need only complywith permit conditions relating to discharges from the municipal separatestorm 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 stormsewer 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 appropriatebasis, 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 ownedseparate storm sewer system, the Director, in his discretion, may issue: asingle NPDES permit, with each discharger a co-permittee to a permit issued to the operator of the portion of the system that discharges into watersof 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


### 222 40 CFR Ch. I (7–1–15 Edition) § 122.26

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 effluentlimitations, 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 theprocedures 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 thissection 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 stormwater, 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 waterdischarge associated with small construction activity pursuant to paragraph (b)(15) of this section;

(C) The Director, or in States with approved NPDES programs either theDirector 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 theDirector or the EPA Regional Administrator, determines that the discharge,or category of discharges within a geographic area, contributes to a violationof 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 ofstorm 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 asdetermined 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 inparagraph (b)(4) (i) or (ii) of this section and that are designated by the Director as part of the large or medium


### 223 Environmental Protection Agency § 122.26

municipal separate storm sewer system due to the interrelationship between the discharges of the designated stormsewer and the discharges from municipal separate storm sewers described under paragraph (b)(4) (i) or (ii) of this section. In making this determinationthe 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 separatestorm sewer system, municipal separate storm sewers located within the boundaries of a region defined by astorm water management regional authority based on a jurisdictional, watershed, or other appropriate basis thatincludes 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’’) meansa 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 circularpipe which is associated with a drainage area of more than 50 acres); or for municipal separate storm sewers that
receive storm water from lands zonedfor industrial activity (based on comprehensive zoning plans or the equivalent), an outfall that discharges from a single pipe with an inside diameter of12 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 inparagraph (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 stormsewer and the discharges from municipal separate storm sewers described under paragraph (b)(7) (i) or (ii) of this section. In making this determinationthe 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 astorm water management regional authority based on a jurisdictional, watershed, or other appropriate basis thatincludes one or more of the systems described in paragraphs (b)(7) (i), (ii), (iii)
of this section.

(8) Municipal separate storm sewermeans a conveyance or system of conveyances (including roads with drainage systems, municipal streets, catchbasins, 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


### 224 40 CFR Ch. I (7–1–15 Edition) § 122.26

body (created by or pursuant to State law) having jurisdiction over disposal of sewage, industrial wastes, stormwater, 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 PubliclyOwned 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 wherea 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 materialof any nature, consolidated or unconsolidated, that overlies a mineral deposit, excluding topsoil or similar naturally-occurring surface materials thatare 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 materialssuch as metallic products; raw materials used in food processing or production; hazardous substances designated under section 101(14) of CERCLA; anychemical the facility is required to report pursuant to section 313 of title III of SARA; fertilizers; pesticides; and waste products such as ashes, slag andsludge 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 conveyingstorm water and that is directly related to manufacturing, processing orraw 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, orby-products used or created by the facility; material handling sites; refuse sites; sites used for the application ordisposal 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 andunloading, 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 municipallyowned or operated that meet the description of the facilities listed in paragraphs (b)(14)(i) through (xi) of thissection) 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


### 225 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 265and 267), 28 (except 283), 29, 311, 32 (except 323), 33, 3441, 373; (not included areall 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 nolonger 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 operationswhich 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 intocontact 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 minedmaterials, 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 (wastethat 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, salvageyards, 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 deviceor system, used in the storage treatment, recycling, and reclamation ofmunicipal or domestic sewage, including land dedicated to the disposal of sewage sludge that are located withinthe 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 ofthe facility, or areas that are in compliance with section 405 of the CWA;

(x) Construction activity includingclearing, 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


### 226 40 CFR Ch. I (7–1–15 Edition) § 122.26

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 (except311), 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 ispart 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, ororiginal purpose of the facility. The Director may waive the otherwise applicable requirements in a general permitfor 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 fiveduring 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 Guideto Conservation Planning With the Revised Universal Soil Loss Equation (RUSLE), pages 21–64, dated January1997. The Director of the Federal Register approves this incorporation by
reference in accordance with 5 U.S.C 552(a) and 1 CFR part 51. Copies may be
obtained from EPA’s Water Resource Center, Mail Code RC4100, 401 M St. SW, Washington, DC 20460. A copy is also available for inspection at the U.S. EPA Water Docket , 401 M Street SW,Washington, DC 20460, or at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202–741–6030, or go to: http:// www.archives.gov/federal

l register/
code

l of

l

federal

l regulations/
ibr

l locations.html. An operator mustcertify 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 maximumdaily load’’ (TMDL) approved or established by EPA that addresses the pollutant(s) of concern or, for non-impaired waters that do not requireTMDLs, 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 ofexisting in-stream concentrations, expected growth in pollutant contributions from all sources, and a margin ofsafety. 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 ofany 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 dischargeswill 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 violationof a water quality standard or for significant contribution of pollutants to
waters of the United States.

E XHIBIT 1 TO § 122.26(b)(15)—S UMMARY OF C OVERAGE OF ‘‘S TORM W ATER D ISCHARGES A SSOCIATED WITH S MALL C ONSTRUCTION A CTIVITY ’’ U NDER THE NPDES S TORM W ATER P ROGRAM

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.


### 227 Environmental Protection Agency § 122.26

E XHIBIT 1 TO § 122.26(b)(15)—S UMMARY OF C OVERAGE OF ‘‘S TORM W ATER D ISCHARGES A SSOCI

ATED WITH S MALL C ONSTRUCTION A CTIVITY ’’ U NDER THE NPDES S TORM W ATER P ROGRAM — 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, orother 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 Statelaw 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 designatedunder 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 otherthoroughfares. The term does not include separate storm sewers in verydiscrete 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 sewersthat 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 stormwater 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 fordesignation (see §124.52(c) of this chapter) under paragraph (a)(1)(v) of this section and is not a municipal stormsewer, 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:


### 228 40 CFR Ch. I (7–1–15 Edition) § 122.26

(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 mapis 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 accessareas, areas where pesticides, herbicides, soil conditioners and fertilizers are applied, each of its hazardous wastetreatment, 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 wherefluids 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 narrativedescription of the following: Significant materials that in the three yearsprior 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 thesubmittal of this application, to minimize contact by these materials with storm water runoff; materials loading and access areas; the location, mannerand frequency in which pesticides, herbicides, soil conditioners and fertilizersare 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 aNPDES 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 threeyears 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 withindustrial 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 Kjeldahlnitrogen, 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 thestorm 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


### 229 Environmental Protection Agency § 122.26

(G) Operators of new sources or new discharges (as defined in §122.2 of thispart) 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 samplingdata, along with the source of each estimate. Operators of new sources ornew discharges composed in part or entirely of storm water must provide quantitative data for the parameters listed in paragraph (c)(1)(i)(E) of thissection within two years after commencement of discharge, unless such data has already been reported under the monitoring requirements of theNPDES permit for the discharge. Operators of a new source or new discharge which is composed entirely of stormwater are exempt from the requirements of §122.21 (k)(3)(ii), (k)(3)(iii), and (k)(5).

(ii) An operator of an existing or newstorm water discharge that is associated with industrial activity solelyunder 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. Suchoperator 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 thearea 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 thatwill 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 ofstorm water from an oil or gas exploration, production, processing, or treatment operation, or transmissionfacility is not required to submit a permit application in accordance withparagraph (c)(1)(i) of this section, unless the facility:

(A) Has had a discharge of storm water resulting in the discharge of areportable 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 areportable 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 isnot required to submit a permit application unless the discharge has come into contact with, any overburden, rawmaterial, intermediate products, finished product, byproduct or wasteproducts 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 toissue 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


### 230 40 CFR Ch. I (7–1–15 Edition) § 122.26

or interconnected municipal separate storm sewer systems), such operatorsmay 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 statusand status as a State or local government entity.

(ii) Legal authority. A description ofexisting 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 controlswhich 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 ofthe municipal storm sewer system covered by the permit application. The following information shall be provided:

( 1 ) The location of known municipalstorm 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 stormsewer. 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 eachcurrently 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 structuralcontrols 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 separatestorm sewer system, including downstream segments, lakes and estuaries,where pollutants from the system discharges may accumulate and causewater 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 (evaluatedor 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 section304(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 ofpollution, cannot reasonably be expected to attain or maintain water


### 231 Environmental Protection Agency § 122.26

quality standards due to storm sewers, construction, highway maintenance and runoff from municipal landfills and municipal sludge adding significantpollution (or contributing to a violation of water quality standards);

( 4 ) Identified and classified according to eutrophic condition of publiclyowned lakes listed in State reports required under section 314(a) of the CWA (include the following: A description of those publicly owned lakes for whichuses are known to be impaired; a description of procedures, processes and methods to control the discharge of pollutants from municipal separatestorm 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 theNational 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 fieldscreening analysis for illicit connections and illegal dumping for either selected field screening points or majoroutfalls covered in the permit application. At a minimum, a screening analysis shall include a narrative description, for either each field screeningpoint 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 descriptionof 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 applicantshall provide a description of the method used including the name of the manufacturer of the test method along with the range and accuracy of thetest. 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 ofthe 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 ofpersonnel 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,


### 232 40 CFR Ch. I (7–1–15 Edition) § 122.26

and fewer than 500 in large systems arecreated by the overlay on the municipal sewer map, then all those cells which contain a segment of the sewersystem 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 areunable to utilize the procedures described in paragraphs (d)(1)(iv)(D) ( 1 ) through ( 6 ) of this section, because asufficiently 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, ifless); 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 cellsas 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. Informationand a proposed program to meet the requirements of paragraph (d)(2)(iii) ofthis section. Such description shall include: the location of outfalls or fieldscreening 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, theseasons 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 beingimplemented. Such controls may include, but are not limited to: Procedures to control pollution resulting from construction activities; floodplainmanagement 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 currentlyavailable to the municipality to complete part 2 of the permit application. A description of the municipality’sbudget 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 waterdischarged 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 oneportion of the municipal system to another portion of the municipal system;


### 233 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 conditionsincluding 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 watershedof 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 CFR122.21(g)(7) and analyze it for the pollutant in accordance with analytical methods approved under part 136 ofthis chapter. When no analytical method is approved the applicant may use any suitable method but must providea description of the method. The applicant must provide information characterizing the quality and quantity ofdischarges 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 asrepresentative of the commercial, residential and industrial land use activities of the drainage area contributing to the system or, where there are lessthan five outfalls covered in the application, the Director shall designate all outfalls) developed as follows:

( 1 ) For each outfall or field screeningpoint designated under this subparagraph, samples shall be collected of storm water discharges from three storm events occurring at least onemonth 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 ofthe 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
BOD 5 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 quantitativedata required by the Director for determining permit conditions (the Director may require that quantitative datashall be provided for additional parameters, and may establish sampling conditions such as the location, season ofsample 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
BOD 5 , COD, TSS, dissolved solids, total nitrogen, total ammonia plus organic nitrogen, total phosphorus, dissolved phosphorus, cadmium, copper, lead,


### 234 40 CFR Ch. I (7–1–15 Edition) § 122.26

and zinc. Estimates shall be accompanied by a description of the procedures for estimating constituent loads and concentrations, including anymodelling, 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 theevent 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 coversthe duration of the permit. It shall include a comprehensive planning process which involves public participationand where necessary intergovernmental coordination, to reduce the discharge of pollutants to the maximum extent practicable using managementpractices, 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 maybe submitted by each coapplicant. Proposed programs may impose controls on a systemwide basis, a watershedbasis, a jurisdiction basis, or on individual outfalls. Proposed programs willbe considered by the Director when developing permit conditions to reducepollutants 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 andsource 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 loadsand a proposed schedule for implementing such controls. At a minimum, the description shall include:

( 1 ) A description of maintenance activities and a maintenance schedule forstructural 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 dischargesfrom areas of new development and significant redevelopment. Such planshall address controls to reduce pollutants in discharges from municipal separate storm sewers after constructionis completed. (Controls to reduce pollutants in discharges from municipalseparate 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 municipalstorm 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 qualityof receiving water bodies and that existing structural flood control devices
have been evaluated to determine ifretrofitting the device to provide additional pollutant removal from storm water is feasible;

( 5 ) A description of a program tomonitor pollutants in runoff from operating or closed municipal landfills orother 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 becoordinated with the program developed under paragraph (d)(2)(iv)(C) of this section); and


### 235 Environmental Protection Agency § 122.26

( 6 ) A description of a program to reduce to the maximum extent practicable, pollutants in discharges frommunicipal 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 forcommercial 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 themunicipal 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, footingdrains, 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 areidentified as significant sources of pollutants to waters of the United States);

( 2 ) A description of procedures toconduct 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 othersources 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 publicreporting 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 municipalsystems 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 determinesare 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


### 236 40 CFR Ch. I (7–1–15 Edition) § 122.26

with the industrial facilities identifiedin paragraph (d)(2)(iv)(C) of this section, to be implemented during theterm of the permit, including the submission of quantitative data on the following constituents: any pollutantslimited in effluent guidelines subcategories, where applicable; any pollutant listed in an existing NPDES permit for a facility; oil and grease, COD, pH,
BOD 5 , TSS, total phosphorus, total Kjeldahl nitrogen, nitrate plus nitritenitrogen, 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 andnon-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 forsite 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 waterquality management program. The assessment shall also identify known impacts of storm water controls on ground water.

(vi) Fiscal analysis. For each fiscalyear to be covered by the permit, a fiscal analysis of the necessary capitaland operation and maintenance expenditures necessary to accomplish theactivities of the programs under paragraphs (d)(2) (iii) and (iv) of this section. Such analysis shall include a description of the source of funds thatare 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 legalentity 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 anyoperator 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 Directorshall 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 thatdoes not have an effective NPDES permit authorizing discharges from its
storm water outfalls shall submit anapplication 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 activityfrom 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 individualpermit, other than an airport, powerplant, or uncontrolled sanitary landfill,the permit application must be submitted to the Director by March 10,
2003.


### 237 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 activityfrom 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 approveor 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 activityfrom 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 afterthe 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 goodcause 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 lessthan 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 largemunicipal 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 mediummunicipal 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:


### 238 40 CFR Ch. I (7–1–15 Edition) § 122.26

(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 NPDESpermits for storm water discharges associated with industrial activity shall maintain existing permits. Facilitieswith 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 denypermits 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 withindustrial 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 applicationunder paragraph (e)(2)(i)(B) of this section, the Director shall issue or denypermits for storm water discharges associated with industrial activity no later than May 17, 1994, or, for any such municipality which fails to submit acomplete 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 separatestorm sewer systems no later than November 16, 1993, or, for new sources or existing sources which fail to submit acomplete 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 under10,000 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 themunicipal 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 standardor 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 populationserved by such separate system to account for storm water discharged to combined sewers as defined by 40 CFR35.2005(b)(11) that is treated in a publicly owned treatment works. In municipalities in which combined sewers are operated, the Census estimates of


### 239 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 lengthof combined sewers and municipal separate storm sewers where an applicanthas submitted the NPDES permit number associated with each discharge point and a map indicating areasserved 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 separatestorm 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 afterreceiving the petition with the exception of petitions to designate a small
MS4 in which case the Director shallmake 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 withindustrial 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 andactivities are protected by a storm resistant shelter to prevent exposure torain, 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 shelterto 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 areno 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, submita 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. Toqualify for this exclusion, storm resistant shelter is not required for:

(i) Drums, barrels, tanks, and similarcontainers 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 basisonly, not for individual outfalls. If a facility has some discharges of storm
water that would otherwise be ‘‘no exposure’’ discharges, individual permitrequirements 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, thedischarge becomes subject to enforcement for un-permitted discharge. Any conditionally exempt discharger who


### 240 40 CFR Ch. I (7–1–15 Edition) § 122.26

anticipates changes in circumstancesshould apply for and obtain permit authorization prior to the change of circumstances.

(iv) Notwithstanding the provisionsof this paragraph, the NPDES permitting authority retains the authority to require permit authorization (and denythis 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 submissionof 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 oractivities are, or will be in the foreseeable future, exposed to precipitation:

(A) Using, storing or cleaning industrial machinery or equipment, andareas 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 duringloading/unloading or transporting activities;

(F) Materials or products stored outdoors (except final products intended for outside use, e.g., new cars, whereexposure 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 processwastewater (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’’ certificationsmust 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 stormwater contaminated by exposure to industrial activities or materials from the industrial facility identified in this document (except as allowed underparagraph (g)(2)) of this section. I understand that I am obligated to submit a no exposure certification form onceevery five years to the NPDES permitting authority and, if requested, to the operator of the local MS4 into whichthis 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 reportspublicly available upon request. I understand that I must obtain coverage under an NPDES permit prior to any point source discharge of storm waterfrom 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 theperson or persons who manage the system, or those persons directly involvedin gathering the information, the information submitted is to the best of my knowledge and belief true, accurateand complete. I am aware there are significant penalties for submitting false


### 241 Environmental Protection Agency § 122.28

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

[55 FR 48063, Nov. 16, 1990]

E DITORIAL N OTE : For F EDERAL R EGISTER 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. Silviculturalpoint 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 whichare operated in connection with silvicultural activities and from which pollutants are discharged into waters
of the United States. The term doesnot include non-point source silvicultural activities such as nursery operations, site preparation, reforestation and subsequent cultural treatment, thinning, prescribed burning, pest andfire 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 forroads) 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 facilitiesmeans 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 CFRpart 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 facilitiesdescribed in the permit under paragraph (a)(2)(ii) of this section, except those covered by individual permits, within a geographic area. The areashould 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 statisticalareas 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 maybe 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 ‘‘treatmentworks 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


### 242 40 CFR Ch. I (7–1–15 Edition) § 122.28

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 shallbe subject to the same water qualitybased effluent limitations.

(4) Other requirements. (i) The generalpermit must clearly identify the applicable conditions for each category orsubcategory of dischargers or treatment works treating domestic sewage covered by the permit.

(ii) The general permit may excludespecified sources or areas from coverage.

(b) Administration —(1) In general. General permits may be issued, modified, revoked and reissued, or terminated inaccordance 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 treatmentworks treating domestic sewage) seeking coverage under a general permit
shall submit to the Director a written notice of intent to be covered by thegeneral 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 thegeneral 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, fulfillsthe 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 generalpermit 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, thefacility name and address, type of facility or discharges, and the receiving stream(s). General permits for stormwater discharges associated with industrial activity from inactive mining, inactive oil and gas operations, or inactive landfills occurring on Federal lands where an operator cannot beidentified may contain alternative notice of intent requirements. All notices of intent shall be signed in accordancewith §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 thedeadlines 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 disposalpractice), 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. Coveragemay 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


### 243 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 dischargescovered by the permit; and the estimated number of discharges to be covered by the permit. The Director shallprovide 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 domesticsewage) so notified may request an individual permit under paragraph (b)(3)(iii) of this section.

(vii) A CAFO owner or operator maybe 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 personmay 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 theavailability 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 Managementplan containing requirements applicable to such point sources is approved;

(E) Circumstances have changedsince the time of the request to be covered so that the discharger is no longerappropriately 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 mayrequire 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 beennotified 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 thegeneral permit as it applies to the individual permittee shall automaticallyterminate. 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 thegeneral 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 F EDERAL R EGISTER or the publication by a State in accordance with applicable State law. The request shall be processedunder part 124 or applicable State procedures. The request shall be granted by issuing of any individual permit if


### 244 40 CFR Ch. I (7–1–15 Edition) § 122.29

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 generalpermit to the individual NPDES permittee is automatically terminated onthe 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, exceptas provided below, issue general permits covering discharges from offshore oil and gas exploration and productionfacilities within the Region’s jurisdiction. Where the offshore area includesareas, 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 permitshall include the Regional Administrator’s tentative determination as to whether the permit applies to ‘‘newsources,’’ ‘‘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. ForFederally 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, includingany prospective permittee, may petition the Regional Administrator toissue 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 ofthe 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 thefinal 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 sourcewhich 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 ofsuch value as to represent a substantial commitment to construct. It excludes facilities or equipment used inconnection with feasibility, engineering, and design studies regarding the source or water pollution treatment for
the source.


### 245 Environmental Protection Agency § 122.29

(b) Criteria for new source determination. (1) Except as otherwise providedin 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 whetherthese processes are substantially independent, the Director shall consider
such factors as the extent to which thenew 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 applicablestandard, 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 anew building, structure, facility, or installation meeting the criteria of paragraph (b)(1) (ii) or (iii) of this section but otherwise alters, replaces, or addsto 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 workincluding 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 Federalaction significantly affecting the quality of the human environment withinthe 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 ofNEPA 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 doesnot 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 issuethe 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 beneficialand 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


### 246 40 CFR Ch. I (7–1–15 Edition) § 122.30

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 stringenttechnology-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 oramortization 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 controllingtoxic pollutants or hazardous substances which are not controlled by new source performance standards.This includes permit conditions controlling pollutants other than thoseidentified as toxic pollutants or hazardous substances when control of these pollutants has been specifically
identified as the method to control thetoxic 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 thesource 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 forachieving 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 newsource, 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 theconditions 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 sourcein 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 arewritten 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 designateadditional sources that need to be regulated to protect water quality and to establish a comprehensive storm waterprogram to regulate these sources. (Because the storm water program is part of the National Pollutant Discharge


### 247 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 andloadings. 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 asthe management framework for efficiently, effectively, and consistentlyprotecting and restoring aquatic ecosystems and protecting public health.

[64 FR 68842, Dec. 8, 1999]

§ 122.31 As a Tribe, what is my roleunder 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 theprogram 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 regulatedsmall 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 EPAto 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 caseyou must meet the applicable requirements. Within Indian country, theNPDES 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 smallMS4, 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 theNPDES 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 otherwiseapplicable to you if you meet the criteria of paragraph (d) or (e) of this section. If you receive a waiver under thissection, 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


### 248 40 CFR Ch. I (7–1–15 Edition) § 122.33

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 hasevaluated 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 andallocations 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 addressessediment (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 significantwater 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 smallMS4 under §122.32, you must seek coverage under a NPDES permit issued by your NPDES permitting authority. Ifyou are located in an NPDES authorized State, Tribe, or Territory, then that State, Tribe, or Territory is yourNPDES 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 areaserved by your MS4. The general permit will explain any other steps necessary to obtain permit authorization.

(2)(i) If you are seeking authorizationto discharge under an individual permit and wish to implement a programunder §122.34, you must submit an application to your NPDES permittingauthority that includes the information required under §§122.21(f) and 122.34(d), an estimate of square mileageserved by your small MS4, and any additional information that your NPDES permitting authority requests. A stormsewer 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 authorizationto discharge under an individual permit and wish to implement a program that is different from the program under §122.34, you will need to complywith the permit application requirements of §122.26(d). You must submitboth 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


### 249 Environmental Protection Agency § 122.34

your legal authority, unless you intendfor 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 largeMS4 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 limitedco-permittee. As a limited co-permittee, you will be responsible forcompliance with the permit’s conditions applicable to your jurisdiction. If you choose this option you will need tocomply with the permit application requirements of §122.26, rather than the requirements of §122.34. You do notneed 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 coordinatingstorm 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 anNPDES 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 anNPDES 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 watermanagement program designed to reduce the discharge of pollutants fromyour 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, narrativeeffluent limitations requiring implementation of best management practices (BMPs) are generally the most appropriate form of effluent limitationswhen designed to satisfy technology requirements (including reductions of pollutants to the maximum extentpracticable) 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 §122.33constitutes 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


### 250 40 CFR Ch. I (7–1–15 Edition) § 122.34

water discharges on water bodies and the steps that the public can take toreduce pollutants in storm water runoff.

(ii) Guidance: You may use storm water educational materials providedby 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 waterpollution, such as ensuring proper septic system maintenance, ensuring the proper use and disposal of landscapeand 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 citizengroups. EPA recommends that the public education program be tailored, using a mix of locally appropriate strategies, to target specific audiencesand communities. Examples of strategies include distributing brochures orfact 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 ofcommercial, 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 andconcerns 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 apublic 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 localstorm 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 participatingin 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 detectand 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 sewersystem 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 followingcategories of non-storm water discharges or flows (i.e., illicit discharges) only if you identify them as significant contributors of pollutants to yoursmall MS4: water line flushing, landscape irrigation, diverted stream flows,


### 251 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 residentialcar washing, flows from riparian habitats and wetlands, dechlorinated swimming pool discharges, and street wash water (discharges or flows from fire fighting activities are excluded fromthe 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 locatingpriority areas likely to have illicit discharges; procedures for tracing thesource 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 priorityareas. 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 toyour 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 waterdischarges 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 regulatorymechanism to require erosion and sediment controls, as well as sanctions toensure compliance, to the extent allowable under State, Tribal, or local law;

(B) Requirements for constructionsite 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 reviewwhich 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 sanctionsto ensure compliance include non-monetary penalties, fines, bonding requirements and/or permit denials for noncompliance. EPA recommends that procedures for site plan review includethe review of individual pre-construction site plans to ensure consistency
with local sediment and erosion control requirements. Procedures for site inspections and enforcement of controlmeasures 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 planfor construction sites within your jurisdiction that discharge into your system. See §122.44(s) (NPDES permitting authorities’ option to incorporatequalifying State, Tribal and local erosion and sediment control programs into NPDES permits for storm water discharges from construction sites).


### 252 40 CFR Ch. I (7–1–15 Edition) § 122.34

Also see §122.35(b) (The NPDES permitting authority may recognize that another government entity, including thepermitting authority, may be responsible for implementing one or more ofthe 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 addressstorm 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 commonplan 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 bestmanagement practices (BMPs) appropriate for your community;

(B) Use an ordinance or other regulatory mechanism to address post-construction runoff from new developmentand 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 tomaintain pre-development runoff conditions. In choosing appropriate BMPs, EPA encourages you to participate inlocally-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 programgoals (e.g., minimize water quality impacts resulting from post-constructionrunoff from new development and redevelopment), implementation strategies (e.g., adopt a combination of structural and/or non-structural BMPs), operationand 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 directgrowth to identified areas, protect sensitive areas such as wetlands and riparian areas, maintain and/or increaseopen 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 higherdensity urban areas, and areas with existing infrastructure; education programs for developers and the public about project designs that minimize water quality impacts; and measuressuch 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 consideringsome or all of the following: pre-construction review of BMP designs; inspections during construction to verifyBMPs are built as designed; post-construction inspection and maintenance of BMPs; and penalty provisions for thenoncompliance with design, construction or operation and maintenance.Storm water technologies are constantly being improved, and EPA recommends that your requirements beresponsive to these changes, developments or improvements in control technologies.


### 253 Environmental Protection Agency § 122.34

(6) Pollution prevention/good housekeeping for municipal operations. (i) Youmust develop and implement an operation and maintenance program that includes a training component and hasthe 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, fleetand 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 inspectionprocedures for structural and nonstructural storm water controls to reduce floatables and other pollutants discharged from your separate stormsewers; controls for reducing or eliminating the discharge of pollutants from streets, roads, highways, municipal parking lots, maintenance and storage yards, fleet or maintenance shops withoutdoor storage areas, salt/sand storage locations and snow disposal areas operated by you, and waste transferstations; procedures for properly disposing of waste removed from the separate storm sewers and areas listedabove (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 examineexisting 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 toimprove the efficiency of these programs and require new programs wherenecessary. Properly developed and implemented operation and maintenanceprograms 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 requirementsrather than the requirements of paragraph (b) of this section. A qualifyinglocal 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 waterminimum 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 coordinatingyour 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 todemonstrate 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 goodfaith 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 selectothers that satisfy the minimum control measures.

(e)(1) You must comply with any more stringent effluent limitations in


### 254 40 CFR Ch. I (7–1–15 Edition) § 122.35

your permit, including permit requirements that modify, or are in addition to, the minimum control measures based on an approved total maximumdaily load (TMDL) or equivalent analysis. The permitting authority may include such more stringent limitationsbased 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 theagreement of the operator of the affected small MS4, except where an approved TMDL or equivalent analysisprovides 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 inthe 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 ofyour identified best management practices, and progress towards achieving your identified measurable goals.

N OTE TO PARAGRAPH (g)(1): The NPDES permitting authority may determine monitoring requirements for you in accordancewith 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, availableto 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 unlessthe 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 bestmanagement practices and progress towards achieving your identified measurable goals for each of the minimum control measures;

(ii) Results of information collected and analyzed, including monitoringdata, 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 satisfysome of your permit obligations (if applicable).

[64 FR 68843, Dec. 8, 1999]

§ 122.35 As an operator of a regulatedsmall MS4, may I share the responsibility to implement the minimumcontrol measures with other entities?

(a) You may rely on another entityto 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 submitunder §122.34(g)(3), you must also specify that you rely on another entity tosatisfy 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


### 255 Environmental Protection Agency § 122.41

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 responsibleunder an NPDES permit for implementing one or more of the minimum control measures for your small MS4 or that the permitting authority itself isresponsible. 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 permitthat requires it to administer a program to control construction site runoff at the State or Tribal level and thatprogram satisfies all of the requirements of §122.34(b)(4), you could avoid responsibility for the construction measure, but would be responsible forthe remaining minimum control measures.) Your permit may be reopenedand modified to include the requirement to implement a minimum controlmeasure 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’tcomply 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 sections309 (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 humanhealth. If you are covered as a co-permittee under an individual permit or under a general permit by means of ajoint Notice of Intent you remain subject to the enforcement actions and penalties for the failure to comply withthe 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 § 123.35of 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 December10, 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 allpermits (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 Stateregulations) 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 CleanWater 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 witheffluent standards or prohibitions established under section 307(a) of the Clean Water Act for toxic pollutants


### 256 40 CFR Ch. I (7–1–15 Edition) § 122.41

and with standards for sewage sludgeuse or disposal established under section 405(d) of the CWA within the timeprovided in the regulations that establish these standards or prohibitions orstandards for sewage sludge use or disposal, even if the permit has not yetbeen 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 theAct, 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 theAct, 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 $2,500to $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 $50,000per day of violation, or by imprisonment of not more than 2 years, or both. Any person who knowingly violates such sections, or such conditions orlimitations 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 6years, or both. Any person who knowingly violates section 301, 302, 303, 306, 307, 308, 318 or 405 of the Act, or anypermit 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 hethereby places another person in imminent danger of death or serious bodilyinjury, 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 notmore 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 befined 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 anypermit 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 themaximum amount of any Class II penalty not to exceed $125,000.

(b) Duty to reapply. If the permitteewishes to continue an activity regulated by this permit after the expiration date of this permit, the permitteemust 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 permitteeshall 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


### 257 Environmental Protection Agency § 122.41

of this permit. Proper operation and maintenance also includes adequate laboratory controls and appropriatequality 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 bemodified, revoked and reissued, or terminated for cause. The filing of a request by the permittee for a permit modification, revocation andreissuance, 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, orterminating this permit or to determine compliance with this permit. Thepermittee 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 anauthorized 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 whererecords 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 anyfacilities, equipment (including monitoring and control equipment), practices, or operations regulated or required under this permit; and

(4) Sample or monitor at reasonabletimes, 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) Samplesand measurements taken for the purpose of monitoring shall be representative of the monitored activity.

(2) Except for records of monitoringinformation 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 stripchart 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 thesample, 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 anothermethod 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 inaccurateany 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 2years, 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 ofnot more than $20,000 per day of violation, or by imprisonment of not more than 4 years, or both.


### 258 40 CFR Ch. I (7–1–15 Edition) § 122.41

(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 personwho knowingly makes any false statement, representation, or certificationin any record or other document submitted or required to be maintainedunder this permit, including monitoring reports or reports of complianceor non-compliance shall, upon conviction, be punished by a fine of not morethan $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 oradditions to the permitted facility. Notice is required only when:

(i) The alteration or addition to a permitted facility may meet one of thecriteria for determining whether a facility is a new source in §122.29(b); or

(ii) The alteration or addition couldsignificantly 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 changethe name of the permittee and incorporate such other requirements as may be necessary under the Clean WaterAct. (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 anypollutant 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 sludgereporting form specified by the Director.

(iii) Calculations for all limitationswhich require averaging of measurements shall utilize an arithmetic meanunless 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) Thepermittee 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 itscause; the period of noncompliance, including exact dates and times, and ifthe noncompliance has not been corrected, the anticipated time it is expected to continue; and steps taken orplanned to reduce, eliminate, and prevent reoccurrence of the noncompliance.


### 259 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 dailydischarge 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 reportsare 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 permitapplication, or submitted incorrect information in a permit application or in any report to the Director, it shallpromptly 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 facilitieswhich 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 toassure 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 priornotice, 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 takeenforcement 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 useof auxiliary treatment facilities, retention of untreated wastes, or maintenance during normal periods of equipment downtime. This condition is notsatisfied if adequate back-up equipment should have been installed in the exercise of reasonable engineeringjudgment 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 itsadverse 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 thereis unintentional and temporary noncompliance with technology based permit effluent limitations because of factors beyond the reasonable control ofthe permittee. An upset does not include noncompliance to the extentcaused 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 effluentlimitations if the requirements of paragraph (n)(3) of this section are met. Nodetermination made during administrative review of claims that noncompliance was caused by upset, and


### 260 40 CFR Ch. I (7–1–15 Edition) § 122.42

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 toall NPDES permits within the categories specified below:

(a) Existing manufacturing, commercial, mining, and silvicultural dischargers. In addition to the reporting requirementsunder §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 isnot limited in the permit, if that discharge will exceed the highest of the following ‘‘notification levels’’:

(i) One hundred micrograms per liter (100 μ g/l);

(ii) Two hundred micrograms per liter (200 μ g/l) for acrolein and acrylonitrile; five hundred micrograms per liter (500 μ g/l) for 2,4-dinitrophenol and for 2-methyl-4,6-dinitrophenol; and onemilligram 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 anydischarge, on a non-routine or infrequent basis, of a toxic pollutant whichis not limited in the permit, if that discharge will exceed the highest of the following ‘‘notification levels’’:

(i) Five hundred micrograms per liter (500 μ g/l);

(ii) One milligram per liter (1 mg/l) for antimony;

(iii) Ten (10) times the maximum concentration value reported for that pollutant in the permit application in accordance with §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 thechange 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


### 261 Environmental Protection Agency § 122.42

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 thecomponents 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 fiscalanalysis 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 numberand nature of enforcement actions, inspections, and public education programs;

(7) Identification of water quality improvements or degradation;

(d) Storm water discharges. The initialpermits 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 yearsafter 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 tomeet the requirements of this paragraph and applicable effluent limitations and standards, including thosespecified 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 properoperation 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 processwastewater 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 notdisposed 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 specificconservation 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 landapply manure, litter or process wastewater in accordance with site specific nutrient management practices thatensure appropriate agricultural utilization of the nutrients in the manure, litter or process wastewater; and

(ix) Identify specific records that willbe maintained to document the implementation and management of theminimum 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


### 262 40 CFR Ch. I (7–1–15 Edition) § 122.42

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 therecipient of the manure, litter or process wastewater with the most currentnutrient 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 anannual 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 nutrientmanagement 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 dischargesfrom 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 ratesof application in accordance with paragraph (e)(5)(ii) of this section, the results of any soil testing for nitrogenand 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 theterms of the CAFO’s site-specific nutrient management plan. The terms of thenutrient 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 nutrientmanagement 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 nutrientmanagement plan concerning land application on the fields available forland application. The terms must address rates of application using one of the following two approaches, unless


### 263 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 aspounds of nitrogen and phosphorus, according to the following specifications:

(A) The terms include maximum application rates from manure, litter, and process wastewater for each yearof 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 fieldto 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 ofthe 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 eachfield; 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-yearphosphorus 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 within12 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 formsdetermined 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 mustinclude: 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 aspasture 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 phosphorusrecommendations 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 amountsof manure, litter, and process wastewater to be land applied: Results of soil
tests conducted in accordance with protocols identified in the nutrientmanagement 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 formand source of manure, litter, and process wastewater; the timing and method of land application; and volatilizationof 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 CAFOincludes alternative crops in its nutrient management plan, the crops must be listed by field, in addition to thecrops identified in the planned crop rotation for that field, and the nutrient


### 264 40 CFR Ch. I (7–1–15 Edition) § 122.42

management plan must include realistic crop yield goals and the nitrogen and phosphorus recommendations from sources specified by the Director foreach 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 describedin 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 managementplan: The CAFO’s planned crop rotations for each field for the period of permit coverage; the projected amountof manure, litter, or process wastewater to be applied; projected credits for all nitrogen in the field that will beplant 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 forphosphorus, the results of the most recent soil test conducted in accordancewith soil testing requirements approved by the Director; and

( 2 ) The results of most recent representative manure, litter, and processwastewater 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 proceduresto 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 mustprovide 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 changesto the nutrient management plan necessitate revision to the terms of thenutrient management plan incorporated into the permit issued to the
CAFO. If revision to the terms of thenutrient 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 nutrientmanagement plan is necessary, the Director must determine whether suchchanges are substantial changes as described in paragraph (e)(6)(iii) of this
section.

(A) If the Director determines thatthe 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 thenutrient management plan incorporated into the permit, and notify theowner or operator and inform the public of any changes to the terms of thenutrient management plan that are incorporated into the permit.


### 265 Environmental Protection Agency § 122.43

(B) If the Director determines thatthe changes to the terms of the nutrient management plan are substantial, the Director must notify the public andmake 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 proposedchanges that differs from the time period specified in 40 CFR 124.10. The Director must respond to all significantcomments 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 ofthe 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 mustnotify 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 termsof 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 theCAFO’s nutrient management plan. Except that if the land application area that is being added to the nutrient management plan is covered by termsof a nutrient management plan incorporated into an existing NPDES permit in accordance with the requirements of paragraph (e)(5) of this section, and theCAFO owner or operator applies manure, litter, or process wastewater on the newly added land application areain accordance with the existing fieldspecific permit terms applicable to the newly added land application area,
such addition of new land would be achange 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-specificmaximum 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 andcorresponding 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 thepermit, 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 andregulations. 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) (alternatesschedule of compliance) and 122.49 (considerations under Federal law).

(b)(1) For a State issued permit, anapplicable requirement is a State statutory or regulatory requirement which


### 266 40 CFR Ch. I (7–1–15 Edition) § 122.44

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 reopeningEPA permit proceedings at the discretion of the Director where new requirements become effective during the permitting process and are of sufficientmagnitude to make additional proceedings desirable. For State and EPA administered programs, an applicable requirement is also any requirementwhich 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 tothe 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 NPDESpermit 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 newsource performance standards promulgated under section 306 of CWA, oncase-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 subjectto 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 andother 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 mustbe submitted when applying for a reissued permit or modification of a reissued permit. The request must demonstrate through sampling or othertechnical 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 thepollutant 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 supersedecertification 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 undersection 307(a) of CWA for a toxic pollutant and that standard or prohibition is more stringent than any limitation onthe pollutant in the permit, the Director shall institute proceedings under these regulations to modify or revoke and reissue the permit to conform tothe toxic effluent standard or prohibition. See also §122.41(a).


### 267 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 theseregulations to modify or revoke and reissue the permit to conform to thestandard 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 treatingdomestic 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. TheDirector 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 ata level which will cause, have the reasonable potential to cause, or contribute to an excursion above anyState 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, thevariability 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 waterquality 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


### 268 40 CFR Ch. I (7–1–15 Edition) § 122.44

applicable State water quality standard, the permit must contain effluentlimits for whole effluent toxicity. Limits on whole effluent toxicity are notnecessary where the permitting authority demonstrates in the fact sheet
or statement of basis of the NPDESpermit, using the procedures in paragraph (d)(1)(ii) of this section, thatchemical-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 ispresent in an effluent at a concentration that causes, has the reasonable potential to cause, or contributes to an
excursion above a narrative criterionwithin 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 acalculated numeric water quality criterion for the pollutant which the permitting authority demonstrates willattain and maintain applicable narrative water quality criteria and will fully protect the designated use. Sucha 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 waterquality criteria, published under section 304(a) of the CWA, supplementedwhere necessary by other relevant information; or

(C) Establish effluent limitations onan 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 §124.56sets forth the basis for the limit, including a finding that compliance withthe effluent limit on the indicator parameter will result in controls on thepollutant of concern which are sufficient to attain and maintain applicable water quality standards;

( 3 ) The permit requires all effluent and ambient monitoring necessary toshow 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 reopenerclause allowing the permitting authority to modify or revoke and reissue the permit if the limits on the indicatorparameter 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 beachieved 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 isstayed by a court of competent jurisdiction or an appropriate State board or agency, EPA shall notify the Statethat 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 sixtyday 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)


### 269 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 lawor 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 differentfactors,’’ under 40 CFR part 125, subpart D;

(9) Incorporate any other appropriaterequirements, 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 toxicpollutants 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 levelwhich 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 measurementspecified 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 internalwaste 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 requirementsunder §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 theanalysis of pollutants or pollutant parameters or required under 40 CFR chapter I, subchapter N or O.


### 270 40 CFR Ch. I (7–1–15 Edition) § 122.44

(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 themeasured 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.

N OTE TO PARAGRAPH (i)(1)( IV )(a): Consistentwith 40 CFR part 136, applicants or permittees have the option of providing matrix or sample specific minimum levels rather thanthe 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 Directormay 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 CFR122.44(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 otherwiserequired under 40 CFR chapter I, subchapter N or O, monitoring shall beconducted 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 acase-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 effluentlimitation 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 basiswith a frequency dependent on the nature and effect of the discharge. At aminimum, 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 stormwater discharge associated with industrial activity and evaluate whether measures to reduce pollutant loadings identified in a storm water pollutionprevention plan are adequate and properly implemented in accordance withthe terms of the permit or whether additional control measures are needed;

(ii) The discharger to maintain for aperiod of three years a record summarizing the results of the inspection and a certification that the facility is incompliance 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 operationsmay, where annual inspections are impracticable, require certification onceevery three years by a Registered Professional Engineer that the facility isin 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 thepermittee 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


### 271 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 tocomply with the reporting requirements of 40 CFR part 403.

(ii) Provide a written technical evaluation of the need to revise local limitsunder 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 40CFR 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) ofthe 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 limitationsand standards or to carry out the purposes and intent of the CWA.

N OTE TO PARAGRAPH (k)(4): Additional technical information on BMPs and the elementsof 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 Managementfor 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 andBest 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 ERICnumber 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 arelisted here only for informational purposes; they are not binding and EPA does not intend that these guidancedocuments 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 wasbased have materially and substantially changed since the time the permit was issued and would constitutecause 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 modifiedon the basis of effluent guidelines promulgated under section 304(b) subsequent to the original issuance of such permit, to contain effluent limitationswhich 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, ormodified 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


### 272 40 CFR Ch. I (7–1–15 Edition) § 122.44

which justify the application of a less stringent effluent limitation;

(B)( 1 ) Information is available which was not available at the time of permitissuance (other than revised regulations, guidance, or test methods) andwhich 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 andfor 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 effluentguidelines in effect at the time of permit renewal, reissuance, or modification).

(ii) Limitations. In no event may apermit with respect to which paragraph (l)(2) of this section applies berenewed, reissued, or modified to contain an effluent limitation which is less stringent than required by effluentguidelines 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 stringenteffluent 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 treatmentworks, 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 applicablerequirements under this part. Alternatively, the Director may issue separate permits to the treatment worksand 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 oneor 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 domesticsewage 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 atcertain times as a means of transportation over water, a condition that thedischarge shall comply with any applicable regulations promulgated by the Secretary of the department in whichthe 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


### 273 Environmental Protection Agency § 122.45

qualifying State, Tribal, or local erosion and sediment control program requirements by reference. Where aqualifying 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. Aqualifying State, Tribal, or local erosion and sediment control program is
one that includes:

(i) Requirements for constructionsite 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 constructionsite operators to develop and implement a storm water pollution prevention plan. (A storm water pollutionprevention plan includes site descriptions, descriptions of appropriate control measures, copies of approved State, Tribal or local requirements, maintenance procedures, inspectionprocedures, and identification of nonstorm water discharges); and

(iv) Requirements to submit a siteplan 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, orlocal erosion and sediment control program requirements by reference. Aqualifying 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 toachieve the applicable technologybased standards of ‘‘best available technology’’ and ‘‘best conventionaltechnology’’ based on the best professional judgment of the permit writer.

[48 FR 14153, Apr. 1, 1983]

E DITORIAL N OTE : For F EDERAL R EGISTER 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 ofthe permitted facility, except as otherwise provided under §122.44(k) (BMPs where limitations are infeasible) andparagraph (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 reasonablemeasure 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 timeperiod 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 (notto exceed maximum production capability) or decreased production levels.

( 2 ) For the automotive manufacturing industry only, the Regional Administrator shall, and the State Directormay establish a condition under paragraph (b)(2)(ii)(A)( 1 ) of this section ifthe applicant satisfactorily demonstrates to the Director at the time the application is submitted that itsactual production, as indicated in paragraph (b)(2)(i) of this section, is substantially below maximum productioncapability and that there is a reasonable potential for an increase above actual production during the duration of the permit.


### 274 40 CFR Ch. I (7–1–15 Edition) § 122.45

(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 operateat 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 noticeof discharge at alternate levels is required to cover a period or production level not covered by prior notice or, ifduring 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 withthe limitations, standards, or prohibitions that correspond to the lowestlevel 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 withthe 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 monthand 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 valentor 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 200kilograms 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 pollutantslimited in permits shall have limitations, standards or prohibitions expressed in terms of mass except:

(i) For pH, temperature, radiation, orother 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 (forexample, discharges of TSS from certain mining operations), and permit
conditions ensure that dilution will not
be used as a substitute for treatment.


### 275 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) Uponrequest 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 aresubstantially 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 theextent 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 thedischarger demonstrates that the intake water is drawn from the same body of water into which the discharge is made. The Director may waive thisrequirement 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) Whenpermit effluent limitations or standards imposed at the point of discharge are impractical or infeasible, effluent limitations or standards for dischargesof pollutants may be imposed on internal waste streams before mixing with other waste streams or cooling waterstreams. 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 factsheet under §124.56 sets forth the exceptional circumstances which make such limitations necessary, such aswhen 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 makemonitoring 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 effluentlimitations guidelines have been promulgated or approved.

(e) A determination that a particulardischarger falls within a given industrial category for purposes of setting apermit 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


### 276 40 CFR Ch. I (7–1–15 Edition) § 122.47

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 butless 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 lessthan three years before recommencement of discharge.

(3) Interim dates. Except as provided in paragraph (b)(1)(ii) of this section, ifa 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 notreadily 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.

N OTE : Examples of interim requirementsinclude: (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 andthe final date of compliance, the permittee shall notify the Director inwriting of its compliance or noncompliance with the interim or finalrequirements, 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 regulatedactivities (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 scheduleleading 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 willinclude the termination date, the permit shall contain a schedule leading to termination which will ensure timelycompliance 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 ormodify 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 sufficienttime to comply with applicable requirements in a timely manner if thedecision is to continue conducting regulated activities;


### 277 Environmental Protection Agency § 122.49

(ii) One schedule shall lead to timelycompliance with applicable requirements, no later than the statutory deadline;

(iii) The second schedule shall lead to cessation of regulated activities by adate 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 theproper use, maintenance, and installation, when appropriate, of monitoringequipment or methods (including biological monitoring methods when appropriate);

(b) Required monitoring includingtype, 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 regulatedactivity 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 lawsthat 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 adoptionof 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 otherwisethe 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. section106 of the Act and implementing regulations (36 CFR part 800) require the Regional Administrator, before issuinga 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 Officersand 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 CFRpart 402) require the Regional Administrator to ensure, in consultation withthe Secretary of the Interior or Commerce, that any action authorized byEPA 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 fromissuing 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


### 278 40 CFR Ch. I (7–1–15 Edition) § 122.50

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, beforeissuing a permit proposing or authorizing the impoundment (with certainexemptions), 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 intowells, 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 dischargedinto 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 andstandards in the permit shall be calculated by one of the following methods:

(1) If none of the waste from a particular process is discharged intowaters 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 ofpermit 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 intowaters 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 ownedtreatment 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 doesnot 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 limitationsto 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]


### 279 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. Exceptas provided in paragraph (b) of this section, a permit may be transferred bythe 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 suchother 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 specificdate 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 tomodify 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 revocationand 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 maymodify or revoke and reissue the permit accordingly, subject to the limitations of §124.5(c), and may request an updated application if necessary. Whena 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 existunder 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 orpublic 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 butnot revocation and reissuance of permits except when the permittee requests or agrees.

(1) Alterations. There are material and
substantial alterations or additions tothe 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.

N OTE : 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 permitissuance (other than revised regulations, guidance, or test methods) and would have justified the application of different permit conditions at the timeof issuance. For NPDES general permits (§122.28) this cause includes anyinformation 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.


### 280 40 CFR Ch. I (7–1–15 Edition) § 122.62

(3) New regulations. The standards or regulations on which the permit wasbased 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 requestedto 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 F EDERAL R EG

ISTER notice of the action on which the request is based.

(ii) For judicial decisions, a court of competent jurisdiction has remandedand 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 wasbased 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 Directordetermines good cause exists for modification of a compliance schedule, suchas 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 schedulefor development of pretreatment program).

(10) Failure to notify. Upon failure ofan 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 pollutantwhich is not limited in the permit exceeds the level which can be achievedby 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 thetime 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 schedulebe modified to extend beyond an applicable CWA statutory deadline for compliance.


### 281 Environmental Protection Agency § 122.63

(14) For a small MS4, to include aneffluent limitation requiring implementation of a minimum control measure or measures as specified in §122.34(b) when:

(i) The permit does not include suchmeasure(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 settingeffluent 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 actuallyachieved (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 theterms 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 causefor 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 arecauses to modify or, alternatively, revoke and reissue a permit:

(1) Cause exists for terminationunder §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 ofthe 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 forchanges 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 124draft 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 compliancedate in a schedule of compliance, provided the new date is not more than 120days after the date specified in the existing permit and does not interferewith 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 noother change in the permit is necessary, provided that a written agreement containing a specific date fortransfer 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 adischarger’s obligation to have all pollution control equipment installed and in operation prior to discharge under §122.29.


### 282 40 CFR Ch. I (7–1–15 Edition) § 122.64

(2) Delete a point source outfall whenthe 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 beenapproved 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, orfor 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 relevantfacts, 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 theentire 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 daysafter notice is sent, unless the permittee objects within that time. If the permittee objects during that period, the Director shall follow part 124 ofthis chapter or applicable State procedures for termination. Expedited permit termination procedures are notavailable to permittees that are subject to pending State and/or Federal enforcement actions including citizen suits brought under State or Federallaw. 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 chapterprocedures 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]

A PPENDIX A TO P ART 122—NPDES

P RIMARY I NDUSTRY C ATEGORIES

Any permit issued after June 30, 1981 to dischargers in the following categories shallinclude effluent limitations and a compliance schedule to meet the requirements of section 301(b)(2)(A), (C), (D), (E) and (F) ofCWA, 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


### 283 Environmental Protection Agency Pt. 122, App. D

Pesticides Petroleum refining Pharmaceutical preparations Photographic equipment and supplies Plastics processingPlastic 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

A PPENDIX B TO P ART 122 [R ESERVED ]

A PPENDIX C TO P ART 122—C RITERIA FOR D ETERMINING A C ONCENTRATED A QUATIC A NIMAL P RODUCTION F ACIL

ITY (§122.24)

A hatchery, fish farm, or other facility is aconcentrated 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. A PPENDIX D TO P ART 122—NPDES P ER

MIT A PPLICATION T ESTING R EQUIRE

MENTS (§122.21)

T ABLE I—T ESTING R EQUIREMENTS FOR O R

GANIC T OXIC P OLLUTANTS BY I NDUSTRIAL C ATEGORY FOR E XISTING D ISCHARGERS

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 ............. 222Explosives 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 .... 2222Pharmaceutical Preparations .................. 222Photographic Equipment and Supplies 2222 Plastic and Synthetic

Materials Manufacturing ...................... 2222 Plastic Processing ..... 2 Porcelain Enameling 2 22Printing 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

1 The toxic pollutants in each fraction are listed in Table II.

2 Testing required.


### 284 40 CFR Ch. I (7–1–15 Edition) Pt. 122, App. D

T ABLE II—O RGANIC T OXIC P OLLUTANTS IN

E ACH OF F OUR F RACTIONS IN A NALYSIS BY G AS C HROMATOGRAPHY /M ASS S PECTROSCOPY (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

T ABLE III—O THER T OXIC P OLLUTANTS (M ETALS AND C YANIDE ) AND T OTAL P HENOLS

Antimony, Total Arsenic, Total Beryllium, Total Cadmium, Total Chromium, Total Copper, Total Lead, Total


### 285 Environmental Protection Agency Pt. 122, App. D

Mercury, Total Nickel, Total Selenium, Total Silver, Total Thallium, Total Zinc, Total Cyanide, Total Phenols, Total

T ABLE IV—C ONVENTIONAL AND N ONCONVEN

TIONAL P OLLUTANTS R EQUIRED T O B E T EST

ED BY E XISTING D ISCHARGERS IF E XPECTED

TO BE P RESENT

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

T ABLE V—T OXIC P OLLUTANTS AND H AZARDOUS

S UBSTANCES R EQUIRED T O B E I DENTIFIED BY E XISTING D ISCHARGERS IF E XPECTED T O B E P RESENT

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 Das they apply to certain industrial categories. The suspensions are as follows:


### 286 40 CFR Ch. I (7–1–15 Edition) Pt. 122, App. D

*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 untilfurther 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/MSfractions in the Porcelain Enameling industry.

c. At 46 FR 35090, July 1, 1981, the Environmental Protection Agency suspended untilfurther 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 pesticidefraction 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 pesticidefraction 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 (subpartF), 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:

T ABLE I—T ESTING R EQUIREMENTS FOR O R

GANIC T OXIC P OLLUTANTS BY I NDUSTRY C AT

EGORY

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 )


### 287 Environmental Protection Agency Pt. 122, App. E

T ABLE I—T ESTING R EQUIREMENTS FOR O R

GANIC T OXIC P OLLUTANTS BY I NDUSTRY C AT

EGORY —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 )

1 Testing required.

2 The pollutants in each fraction are listed in Item V-C.

3 Pulp 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.

3 Subparts are defined in 40 CFR Part 430.

[48 FR 14153, Apr. 1, 1983, as amended at 49 FR 38050, Sept. 26, 1984; 50 FR 6940, Feb. 19, 1985]

A PPENDIX E TO P ART 122—R AINFALL Z ONES OF THE U NITED S TATES

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]


### 288 40 CFR Ch. I (7–1–15 Edition) Pt. 122, App. F

A PPENDIX F TO P ART 122—I NCOR

PORATED P LACES W ITH P OPULATIONS G REATER T HAN 250,000 A CCORDING

TO THE 1990 D ECENNIAL C ENSUS BY

THE B UREAU OF THE C ENSUS

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] A PPENDIX G TO P ART 122—I NCOR

PORATED P LACES W ITH P OPULATIONS G REATER T HAN 100,000 B UT L ESS T HAN 250,000 A CCORDING TO THE 1990
D ECENNIAL C ENSUS BY THE B UREAU

OF THE C ENSUS

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.


### 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]

A PPENDIX H TO P ART 122—C OUNTIES W ITH U NINCORPORATED U RBANIZED A REAS W ITH A P OPULATION OF 250,000 OR M ORE A CCORDING TO THE 1990 D ECENNIAL C ENSUS BY THE B U

REAU OF THE C ENSUS

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]

A PPENDIX I TO P ART 122—C OUNTIES W ITH U NINCORPORATED U RBANIZED A REAS G REATER T HAN 100,000, B UT L ESS T HAN 250,000 A CCORDING TO

THE 1990 D ECENNIAL C ENSUS BY THE B UREAU OF THE C ENSUS

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


### 290 40 CFR Ch. I (7–1–15 Edition) Pt. 122, App. J

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]

A PPENDIX J TO P ART 122—NPDES P ER

MIT T ESTING R EQUIREMENTS FOR P UBLICLY O WNED T REATMENT W ORKS (§122.21(j))

T ABLE 1A—E FFLUENT P ARAMETERS FOR A LL POTWS

Biochemical oxygen demand (BOD–5 or

CBOD–5)
Fecal coliform Design Flow Rate pH Temperature Total suspended solids

T ABLE 1—E FFLUENT P ARAMETERS FOR A LL

POTWS W ITH A F LOW E QUAL TO OR G REAT

ER T HAN 0.1 MGD

Ammonia (as N) Chlorine (total residual, TRC) Dissolved oxygen
Nitrate/Nitrite Kjeldahl nitrogen Oil and grease Phosphorus
Total dissolved solids

T ABLE 2—E FFLUENT P ARAMETERS FOR S ELECTED 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


### 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 standardsfor 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.

A UTHORITY : Clean Water Act, 33 U.S.C. 1251 et seq.

S OURCE : 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 mustmeet 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 undersection 405(f) (sludge management programs) of the CWA. The requirementsthat 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. AState 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


### 292 40 CFR Ch. I (7–1–15 Edition) § 123.2

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 forthese 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 permitappeal, modification request or variance request is not finally resolvedwhen 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 thepreceding 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 aState 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 arrangementstated in the Memorandum of Agreement executed between EPA and the
Tribe.

(e) Upon submission of a complete program, EPA will conduct a publichearing, 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 authorizedpursuant to paragraph (g)(2) of this section or excluded by §122.3, the State program must prohibit all point source discharges of pollutants, all dischargesinto aquaculture projects, and all disposal of sewage sludge which results inany pollutant from such sludge entering into any waters of the United States within the State’s jurisdictionexcept 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 mustmake a submission meeting the requirements of §123.21 before EPA will begin formal review.

(2) A State may seek approval of apartial 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 impairthat State’s ability to obtain full program approval in accordance with thispart, 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.

N OTE : 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 coveragethan required by Federal law the additional coverage is not part of the Federally approved program.

N OTE : 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]


### 293 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 Tribein 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 howthe 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 Agreementwith the Regional Administrator as required by §123.24;

(5) Copies of all applicable State statutes and regulations, including thosegoverning 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 extendthe 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 aninterstate 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 andstructure of the State agency or agencies which will have responsibility for administering the program, including
the information listed below. If morethan 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 designatedas a ‘‘lead agency’’ to facilitate communications between EPA and theState 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 resourcesdedicated to administering the Federally required portion of the program.

(1) A description of the State agencystaff who will carry out the State program, including the number, occupations, and general duties of the employees. The State need not submitcomplete 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


### 294 40 CFR Ch. I (7–1–15 Edition) § 123.23

personnel listed in paragraph (b)(1) of this section, cost of administrative support, and cost of technical support.

(3) An itemization of the sources andamounts of funding, including an estimate of Federal grant money, available
to the State Director for the first two years after approval to meet the costslisted in paragraph (b)(2) of this section, identifying any restrictions or limitations upon this funding.

(c) A description of applicable Stateprocedures, 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 EPAbut 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.

N OTE : 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 theState’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 descriptionof how responsibility for pending permit applications, existing permits, and supporting files will be transferred from the State to the eligible IndianTribe. 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 therequirements of this part. This statement shall include citations to the specific statutes, administrative regulations, and, where appropriate, judicial decisions which demonstrate adequateauthority. 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 shallbe 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 Stateagency in court on all matters pertaining to the State program.

N OTE : 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 statementshall certify that the State has adequate legal authority to issue and enforce general permits if the State seeksto 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


### 295 Environmental Protection Agency § 123.24

Agreement may include other terms, conditions, or agreements consistentwith this part and relevant to the administration and enforcement of theState’s regulatory program. The Administrator shall not approve anyMemorandum 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 pendingpermit applications and any other information relevant to program operation not already in the possession of the State Director (e.g., support filesfor 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 directlyadminister permits issued by the Federal government, a procedure may be established to transfer responsibility for these permits.

N OTE : For example, EPA and the State and the permittee could agree that the Statewould 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 anyother 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 theState 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. Theseprocedures 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 bothEPA and the State under different programs. (See §124.4.)

N OTE : To promote efficiency and to avoidduplication 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 theMemorandum of Agreement in accordance with this part.

(c) The Memorandum of Agreement, the annual program grant and theState/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.

N OTE : Detailed program priorities and specific arrangements for EPA support of the State program will change and are thereforemore appropriately negotiated in the context of annual agreements rather than in the MOA. However, it may still be appropriate tospecify in the MOA the basis for such detailed agreements, e.g., a provision in theMOA 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 whichEPA will waive its right to review, object to, or comment upon State-issued


### 296 40 CFR Ch. I (7–1–15 Edition) § 123.25

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 ofreview 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 uncontaminatedcooling water with a daily average discharge exceeding 500 million gallons per day;

(6) Discharges from any major discharger or from any discharger withinany of the 21 industrial categories listed in appendix A to part 122;

(7) Discharges from other sourceswith a daily average discharge exceeding 0.5 (one-half) million gallons per day, except that EPA review of permitsfor discharges of non-process wastewater may be waived regardless of
flow.

(e) Whenever a waiver is granted under paragraph (d) of this section, theMemorandum of Agreement shall contain:

(1) A statement that the RegionalAdministrator 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 shallsupply 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 thispart 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) (IndianTribes 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);


### 297 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 part132 (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).

N OTE : Except for paragraph (a)(46) of thissection, 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. WhileStates may impose more stringent requirements, they may not make one requirementmore 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 adequatelegal 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 morestringent 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 havean 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 personwho 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 means10 percent or more of gross personal income for a calendar year, except that itmeans 50 percent or more of gross personal income for a calendar year if the recipient is over 60 years of age and isreceiving 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, suchas 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 fundpayments, 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]

E DITORIAL N OTE : For F EDERAL R EGISTER 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.


### 298 40 CFR Ch. I (7–1–15 Edition) § 123.26

§ 123.26 Requirements for compliance evaluation programs.

(a) State programs shall have procedures for receipt, evaluation, retentionand investigation for possible enforcement of all notices and reports required of permittees and other regulated persons (and for investigation forpossible enforcement of failure to submit these notices and reports).

(b) State programs shall have inspection and surveillance procedures to determine, independent of informationsupplied 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 havefailed to comply with permit application or other program requirements. Any compilation, index or inventory of
such facilities and activities shall bemade 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 violationsof 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 programrequirements. 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 byNPDES 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 establishpriorities 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 aprogram 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 anyunauthorized activity which is endangering or causing damage to public health or the environment;


### 299 Environmental Protection Agency § 123.27

N OTE : This paragraph (a)(1) requires thatStates 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 programrequirement, including permit conditions, without the necessity of a prior revocation of the permit;

(3) To assess or sue to recover incourt civil penalties and to seek criminal remedies, including fines, as follows:

(i) Civil penalties shall be recoverable for the violation of any NPDESpermit condition; any NPDES filing requirement; any duty to allow or carryout inspection, entry or monitoring activities; or, any regulation or orders issued by the State Director. These penalties shall be assessable in at leastthe 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 filingrequirement. These fines shall be assessable in at least the amount of $10,000 a day for each violation.

N OTE : 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 knowinglymakes any false statement, representation or certification in any NPDES form, in any notice or report requiredby 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.

N OTE : 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;

N OTE : 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.

N OTE : To the extent that State judgments or settlements provide penalties in amountswhich 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, ormonitoring surveys which lead to the establishment of violations;

In addition to the requirements of thisparagraph, 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 destructionof 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


### 300 40 CFR Ch. I (7–1–15 Edition) § 123.28

interest which is or may be adversely affected; or

(2) Assurance that the State agency or enforcement authority will:

(i) Investigate and provide writtenresponses 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 onany proposed settlement of a State enforcement action.

(e) Indian Tribes that cannot satisfythe criminal enforcement authority requirements of this section may still receive program approval if they meetthe 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 thepublic 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 permitterms and conditions. A program approved under section 1422 of SDWA satisfies the requirements of this section.

N OTE : 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
whic h*** 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 excludescertain 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 partshall 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 personswho 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) ofthe 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 governingbody carrying out substantial governmental duties and powers.

(3) The functions to be exercised bythe Indian Tribe pertain to the management and protection of water resources which are held by an Indian


### 301 Environmental Protection Agency § 123.32

Tribe, held by the United States in trust for the Indians, held by a memberof 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 andpurposes 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 governingbody 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 theexercise 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 TribalAttorney General (or equivalent official authorized to represent the Tribe in all legal matters in court pertainingto the program for which it seeks approval) which describes the basis forthe 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 toadminister 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 theIndian Sanitation Facility Construction Activity Act (42 U.S.C. 2004a);

(2) A list of existing environmentalor 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 Tribewhich 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


### 302 40 CFR Ch. I (7–1–15 Edition) § 123.33

program or a plan which proposes howthe Tribe will acquire additional administrative and technical expertise. The plan must address how the Tribewill 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 uniqueto 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 isprecluded 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 ismeant 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 underthe 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 evaluatewhether a storm water discharge results in or has the potential to resultin 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 urbanizedarea, 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,


### 303 Environmental Protection Agency § 123.35

2002. You may wait until December 8, 2004 to apply the designation criteriaon 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 thatcontributes 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). Ifyou 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 loadingsof 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 ‘‘totalmaximum 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 ofthe 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 aTMDL 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 ofany 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 resultin 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 determineother 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 orcommercial density, significant contributor of pollutants to waters of theUnited 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 thisapproach, 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 thisoption, 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 mustbe approved by the Regional Administrator no later than December 10, 2001.

(4) If you choose to phase in permitcoverage for small MS4s in jurisdictions with a population under 10,000, in


### 304 40 CFR Ch. I (7–1–15 Edition) § 123.36

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 approvedschedule for phasing in permit coverage, you must make a determination whether to issue an NPDES permit or
allow a waiver in accordance withparagraph (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 withparagraph (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 regulatedsmall MS4s to fully develop and implement their storm water program.

(f) You must include the requirements in §§122.33 through 122.35 of thischapter 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 existingqualifying 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 mustimpose, 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 regulatedsmall 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 hasbeen 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 measurablegoals and modify, update, and supplement such guidance based on the assessments of the NPDES MS4 stormwater 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 Stateor 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 rolein 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 underseveral 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 controlmeasures 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


### 305 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 usedin the administration of a State program shall be available to EPA uponrequest 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 ofconfidentiality 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 toimplement 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) willprovide for the following, in such manner as the State Director and the Regional Administrator agree:

(a) Prompt transmission to the StateDirector from the Regional Administrator of copies of any pending permitapplications 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 theRegional Administrator copies of permit program forms and any other relevant information to the extent and inthe manner agreed to by the State Director and Regional Administrator in the Memorandum of Agreement andnot 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 everyaction taken by the State agency related to the consideration of any permit application or general permit, including a copy of each proposed ordraft 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


### 306 40 CFR Ch. I (7–1–15 Edition) § 123.44

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 mustsubmit a written request to the Regional Administrator no less than 210 days prior to permit expiration. Thisrequest 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 anda summary of any significant comments presented at any hearing on any draft permit, except those commentsregarding 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 requireto 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 (upto 90 days from receipt of proposed permits) to which the Regional Administrator may make general commentsupon, objections to, or recommendations with respect to proposed permits. EPA reserves the right to take 90 daysto 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 acopy of any comment, objection or recommendation to the permit applicant.

(2) In the case of general permits, EPA shall have 90 days from the dateof 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 forgeneral comments, objections or recommendations.

(b)(1) Within the period of time provided under the Memorandum of Agreement for making general commentsupon, objections to or recommendations with respect to proposed permits,the Regional Administrator shall notify the State Director of any objectionto issuance of a proposed permit (except as provided in paragraph (a)(2) ofthis section for proposed general permits). This notification shall set forthin 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 ofthe proposed general permit, the Regional Administrator shall set forth inwriting 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


### 307 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.)

N OTE : 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 thetime specified in the agreement. This general objection must be followed by a specific objection within the 90-day period. Thismodification 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;

N OTE : For example, the Regional Administrator may object to a permit not requiringthe 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 section402(b)(5) of CWA, the written recommendations of an affected Statehave 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 ofrecords, 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 permitwith 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 proposedpermit, in the judgment of the Regional Administrator, fails to carry outthe provisions of CWA or of any regulations issued under CWA; the provisionsof this paragraph apply to determinations made pursuant to §125.3(c)(2) in the absence of applicable guidelines, tobest 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 outsidethe 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


### 308 40 CFR Ch. I (7–1–15 Edition) § 123.45

that the Regional Administrator determines are necessary for review. If thisrequest 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 ofthis chapter), it will constitute an interim objection to the issuance of the permit, and the full period of timespecified 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 interestedperson 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 ofthis chapter, (or, in the case of a sewage sludge management program, §501.15(d)(5) of this chapter), wheneverrequested 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 RegionalAdministrator, 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 permitrevised 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 124of this chapter and any other guidelines and requirements of CWA.

(2) If a public hearing is held underparagraph (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 ofthe 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 mayagree, 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 neednot 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 draftpermit 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 requiredunder 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.


### 309 Environmental Protection Agency § 123.45

(a) Quarterly reports. The Directorshall submit quarterly narrative reports for major permittees as follows:

(1) Format. The report shall use the following format:

(i) Provide a separate list of majorNPDES 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 forreporting 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) ofnoncompliance and the date noncompliance was resolved.

(E) Any details which tend to explainor 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). Oncean 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., administrativeand 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 compliancewith permit conditions. If the permittee is in compliance with the enforcement order, but has not achievedfull 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 bymajor 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 morefrom 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 afinal 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 substantialconcern and may not meet the Category I criteria. The following are instances of noncompliance which mustbe reported as Category II noncompliance unless the same violation meetsthe 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).


### 310 40 CFR Ch. I (7–1–15 Edition) § 123.45

(B) Failure of an approved POTW to implement its approved pretreatment program adequately including failureto enforce industrial pretreatment requirements on industrial users as required in the approved program.

(C) Violations of any complianceschedule 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 developSpill 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 ofmajor permittees with two or more violations of the same monthly averagepermit limitation in a six month period, including those otherwise reported under paragraph (a) of this section. This report shall be submitted atthe 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. Statisticalreports shall be submitted by the Director on nonmajor NPDES permittees indicating the total number reviewed, the number of noncomplying nonmajor permittees, the number of enforcementactions, and number of permit modifications extending compliance deadlines. The statistical information shallbe 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 thecompliance 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 NPDESpermit requirements by major dischargers in the State in acordance with the following schedule. The RegionalAdministrator shall prepare and submit information for EPA-issued permits to EPA Headquarters in accordance with the same schedule:

Q UARTERS COVERED BY REPORTS ON

NONCOMPLIANCE BY MAJOR DISCHARGERS :
[Date for completion of reports]
January, February, and March ....... 1 May 31 April, May, and June ...................... 1 August 31 July, August, and September ......... 1 November 30October, November, and December. 1 February 28

1 Reports must be made available to the public for inspection and copying on this date.

(2) For all annual reports. The periodfor 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.

A PPENDIX A TO §123.45—C RITERIA FOR N ON

COMPLIANCE R EPORTING IN THE NPDES P RO

GRAM

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 aparameter-by-parameter and outfall-by-outfall basis. The criteria for reporting effluent
violations are as follows:


### 311 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.

G ROUP I P OLLUTANTS —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 G ROUP II P OLLUTANTS —TRC=1.2

M ETALS ( 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 controlson 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 tosubmit control strategies in accordance with paragraph (a) of this section or the Administrator does not approve the control strategies submitted bysuch 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,


### 312 40 CFR Ch. I (7–1–15 Edition) § 123.46

the Administrator shall, at a minimum, consider for listing under CWA section 304(l)(1) any navigable watersfor 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 permitwith 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 toissue 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 section304(l)(1)(C) of the CWA and is also subject to an on-site response action undersections 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 incorporatesthe 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 thewaterbody 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 ICSswill 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 provideadequate 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 hisor her discretion, a list of the ICSs approved under this section, and a findingthat 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 shallprovide 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 orweekly newspaper with State-wide circulation or in the F EDERAL R EGISTER

,for the notice of approval or disapproval. The Regional Administrator shall also provide written notice toeach 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 RegionalOffices 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


### 313 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 tothe State that the Regional Office intends to issue the ICS. Upon mailing the notification, and notwithstandingany 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, EPAshall publish notice of the State’s application in the F EDERAL R EGISTER

,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 mailinglists and all permit holders and applicants within the State. The notice
shall:

(1) Provide a comment period of notless 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
F EDERAL R EGISTER ;

(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 fundamentalaspects 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 CWAand taking into consideration all comments received. A responsiveness summary shall be prepared by the RegionalOffice which identifies the public participation activities conducted, describes the matters presented to thepublic, 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
F EDERAL R EGISTER . The Regional Administrator shall suspend the issuance of permits by EPA as of the date of program approval.

(d) If the Administrator disapprovesthe 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 Statemay initiate program revision. Program revision may be necessary whenthe controlling Federal or State statutory or regulatory authority is modified or supplemented. The State shallkeep 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 aState’s existing approved program includes authority to issue NPDES permits for activities on a Federal Indian
reservation and an Indian Tribe hassubsequently been approved for assumption of the NPDES program under 40 CFR part 123 extending to those
lands.


### 314 40 CFR Ch. I (7–1–15 Edition) § 123.63

(b) Revision of a State program shall be accomplished as follows:

(1) The State shall submit a modifiedprogram 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 thatthe proposed program revision is substantial, EPA shall issue public noticeand 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 F EDERAL R EGISTER 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 theopportunity 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, inthe case of a sewage sludge management program, 40 CFR part 501) and of
the CWA.

(4) A program revision shall becomeeffective upon the approval of the Administrator. Notice of approval of any substantial revision shall be published
in the F EDERAL R EGISTER . 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 programsmust notify EPA whenever they propose to transfer all or part of any program from the approved State agency to any other State agency, and mustidentify 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, inthe 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 theState 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 theseregulations immediately upon approval. Any approved State section 402permit program which requires revision to conform to this part shall be so revised within one year of the date ofpromulgation 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, exceptthat revision of State programs to implement the requirements of 40 CFRpart 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


### 315 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 Stateprogram 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 permitswhich 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 enforcementprogram 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 tocomply 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 developan 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 byFederal 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 theorderly 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
F EDERAL R EGISTER and in enough of the largest newspapers in the State to provide Statewide coverage, and shallmail notice to all permit holders, permit applicants, other regulated personsand other interested persons on appropriate EPA and State mailing lists.

(b) The following procedures apply
when the Administrator orders thecommencement 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 petitionfrom 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 investigationof 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


### 316 40 CFR Ch. I (7–1–15 Edition) § 123.64

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 40CFR 22.03 apply in addition to the following:

(i) Party means the petitioner, theState, the Agency, and any other person whose request to participate as a party is granted.

(ii) Person means the Agency, theState and any individual or organization having an interest in the subject matter of the proceeding.

(iii) Petitioner means any person whose petition for commencement ofwithdrawal 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 computingany 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 statedtime period shall be extended to include the next business day.

( 2 ) Extensions of time. The Administrator, Regional Administrator, or Presiding Officer, as appropriate, maygrant 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 causeshown, 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 aparty to make timely motion for extension of time was the result of excusable neglect.

( 3 ) The time for commencement ofthe 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 shallthe Administrator, the Regional Administrator, the Regional Judicial Officer, the Presiding Officer, or any otherperson 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 prosecutorialor investigative function in such proceeding or a factually related proceeding, or with any representative ofsuch 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, byor 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 motionfor 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


### 317 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, withinten (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 inthe 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 proceedingupon 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 accompaniedby any affidavit, certificate, other evidence, or legal memorandum relied upon. Such motions shall be served asprovided 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 timeis 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 PresidingOfficer, Regional Administrator, or Administrator, as appropriate, may set a shorter time for response, or makesuch 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, andthereupon transcribed by an official reporter designated by the Presiding Officer;

(ii) All orders issued by the PresidingOfficer, transcripts of testimony, written statements of position, stipulations, exhibits, motions, briefs, andother 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 ofthe Administrative Law Judges, Hearing Clerk, 1200 Pennsylvania Ave., NW., Washington, DC 20460;

(iii) Upon notice to all parties thePresiding 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;


### 318 40 CFR Ch. I (7–1–15 Edition) Pt. 124

(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 suchconditions 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 30days 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 arecommended decision, and shall certify the entire record, including therecommended 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 therecord 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 theprogram 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 administeredthe 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 afurther 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, theAdministrator 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 ofState 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.


### 319 Environmental Protection Agency Pt. 124

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 ofEngineers 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

G ENERAL I NFORMATION A BOUT S TANDARDIZED P ERMITS

124.200 What is a RCRA standardized permit? 124.201 Who is eligible for a standardized permit?

A PPLYING FOR A S TANDARDIZED P ERMIT

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?

I SSUING A S TANDARDIZED P ERMIT

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?

O PPORTUNITIES FOR P UBLIC I NVOLVEMENT IN

THE S TANDARDIZED P ERMIT P ROCESS

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 thepermit process, appeal a final standardized permit?

M AINTAINING A S TANDARDIZED P ERMIT

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 tomake routine changes with prior approval? 124.214 What procedures must I follow to make significant changes?

A UTHORITY : 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.

S OURCE : 48 FR 14264, Apr. 1, 1983, unless
otherwise noted.


### 320 40 CFR Ch. I (7–1–15 Edition) § 124.1



### Subpart A—General Program Requirements

§ 124.1 Purpose and scope.

(a) This part contains EPA procedures for issuing, modifying, revoking and reissuing, or terminating allRCRA, UIC, PSD and NPDES ‘‘permits’’ (including ‘‘sludge-only’’ permits issued pursuant to §122.1(b)(2) of this chapter. The latter kinds of permitsare governed by part 270. RCRA interim status and UIC authorization by rule are not ‘‘permits’’ and are coveredby specific provisions in parts 144, subpart C, and 270. This part also does notapply to permits issued, modified, revoked and reissued or terminated bythe Corps of Engineers. Those procedures are specified in 33 CFR parts 320– 327. The procedures of this part alsoapply 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 allpermit programs covered by these provisions. Subparts B through D and Subpart G supplement these general provisions with requirements that apply toonly 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 andholding public hearings on draft permits. Subpart A also covers assembling an administrative record, respondingto 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 managementfacilities. Subpart C contains definitions and specific procedural requirements for PSD permits. Subpart D contains specific procedural requirementsfor NPDES permits. Subpart G contains specific procedural requirements for RCRA standardized permits, which, in some instances, change how theGeneral 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 ormore 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 publichearing under §124.12. Permit applicants may recommend whether or nottheir 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 atthe 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 bejointly processed, joint comment periods and hearings to be held, and final permits to be issued on a cooperative basis whenever EPA and a State agreeto 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


### 321 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 standardnational forms for applying for a permit, including any additions, revisions or modifications to the forms; or forms approved by EPA for use in ‘‘approvedStates,’’ 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 thereis 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 ordeny, 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 shallmean 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 Section124.5(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 amotion 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 404dredge 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


### 322 40 CFR Ch. I (7–1–15 Edition) § 124.2

the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and includingrights-of-way running through the reservation.

General permit (NPDES and 404)means an NPDES or 404 ‘‘permit’’ authorizing a category of discharges oractivities 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 ofUIC) 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 IndianTribe, 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 orunder an agreement or compact approved by the Congress, or any other agency of two or more States having substantial powers or duties pertainingto 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 notyet 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 compliancewith 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 ofthe Clean Water Act in ‘‘State regulated waters.’’

Site means the land or water area where any ‘‘facility or activity’’ isphysically 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 theUnited States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, AmericanSamoa, 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


### 323 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 theState, 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 ‘‘approvedprogram,’’ or the delegated representative of the state Director. If responsibility is divided among two or moreState or interstate agencies, ‘‘State Director’’ means the chief administrativeofficer of the State or interstate agency authorized to perform the particularprocedure 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 usedwhen 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 exclusivelyto 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 shallcomplete, 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 requiredfor RCRA permits by rule (§270.60), underground injections authorized by rules (§§144.21 through 144.26), NPDESgeneral permits (§122.28) and 404 general permits (§233.37).

(2) The Director shall not begin theprocessing 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 thesignature and certification requirements of §§122.22 (NPDES), 144.32 (UIC), 233.6 (404), and 270.11 (RCRA).

(b) [Reserved] (c) The Regional Administrator shallreview 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 PSDstationary source or major PSD modification, or an NPDES new source orNPDES new discharger should be reviewed for completeness by the Regional Administrator within 30 days of its receipt. Each application for anEPA-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 reviewedfor completeness within 60 days of receipt. Upon completing the review, the Regional Administrator shall notify the applicant in writing whether theapplication 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 existingNPDES source or ‘‘sludge-only facility’’ the Regional Administrator shall specify in the notice of deficiency a


### 324 40 CFR Ch. I (7–1–15 Edition) § 124.4

date for submitting the necessary information. The Regional Administratorshall notify the applicant that the application is complete upon receiving this information. After the applicationis completed, the Regional Administrator may request additional information from an applicant but only whennecessary 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 applicantthat the application is complete as provided in paragraph (c) of this section.

(g) For each application from a majornew 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 tothe applicant a project decision schedule. (This paragraph does not apply toPSD 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 statementsof 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 StateDirector(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 expiresimultaneously. Processing of the subsequent applications for renewal permits may then be consolidated.

(c) Processing of permit applicationsunder 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 andthe 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 processingof 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


### 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 andreissuance, 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 bemodified, 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 therequester 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, orhearings. 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 judicialreview 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 shallprepare a draft permit under §124.6 incorporating the proposed changes. TheDirector 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, otherthan 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 CFR270.41(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 otheraspects 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 revocationand 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), and233.16 (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 thischapter (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 draftpermit which follows the same procedures as any draft permit prepared under §124.6 of this chapter.

(2) For EPA-issued NPDES or RCRApermits, if the Director tentatively decides to terminate a permit under


### 326 40 CFR Ch. I (7–1–15 Edition) § 124.6

§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 RCRApermit, 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 acomplaint shall not be issued if the Regional Administrator and the permittee agree to termination in thecourse 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 byproviding 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 draftpermit 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 draftpermit 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,


### 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 RegionalAdministrator 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 betaken 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 intentto 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 managementfacility, for every 404 and NPDES general permit (§§237.37 and 122.28), forevery 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 CFR501.15(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 questionsconsidered 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 proposedto be or are being treated, stored, disposed of, injected, emitted, or discharged.

(3) For a PSD permit, the degree ofincrement 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 appropriatesupporting 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 aperson 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]


### 328 40 CFR Ch. I (7–1–15 Edition) § 124.9

§ 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 andPSD 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 givenafter 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 whena request for permit modification, revocation and reissuance, or terminationis 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 adraft 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 least45 days for public comment. For EPAissued permits, if the Regional Administrator determines under 40 CFR part 6, subpart F that an EnvironmentalImpact 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 beforethe 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 tothe following persons (any person otherwise entitled to receive notice under this paragraph may waive his or her


### 329 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 zonemanagement plans, the Advisory Council on Historic Preservation, State Historic Preservation Officers, including any affected States (Indian Tribes). (For purposes of this paragraph, and inthe 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, anyuser 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 thecity 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 andgas 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 themailing list from time to time by requesting written indication of continued interest from those listed. The Director may delete from the list thename of any person who fails to respond to such a request.)

(x)(A) To any unit of local government having jurisdiction over the areawhere the facility is proposed to be located; and (B) to each State agency having any authority under State lawwith respect to the construction or operation of such facility.

(xi) For Class VI injection well UIC permits, mailing or e-mailing a noticeto 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 theState, 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 applicationplans under 40 CFR 501.15(a)(2)(ix), publication of a notice in a daily or weekly newspaper within the area affected bythe facility or activity; and for EPAissued NPDES general permits, in the
F EDERAL R EGISTER ;

N OTE : 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


### 330 40 CFR Ch. I (7–1–15 Edition) § 124.10

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 404general permits when there is no application.

(iv) Name, address and telephonenumber 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 therecord 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 disposalsites 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 thetype, composition, and quantity of materials to be discharged and means ofconveyance; 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 thedischarge 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 informationwhich may assist the public in evaluating the likely impact of the proposedactivity 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 hearingunder §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


### 331 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 inparagraph (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 orstatement 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 404permits when no draft permit is required (see §233.39) and may request apublic hearing, if no hearing has already been scheduled. A request for a public hearing shall be in writing andshall 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 hearingmight 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 nearestpopulation 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 beheld 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. Reasonablelimits may be set upon the time allowed for oral statements, and the submission of statements in writing maybe 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 draftpermit 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 ascertainableissues 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 beincluded in full and may not be incorporated by reference, unless they are already part of the administrative


### 332 40 CFR Ch. I (7–1–15 Edition) § 124.14

record in the same proceeding, or consist of State or Federal statutes and regulations, EPA documents of generalapplicability, or other generally available reference materials. Commenters shall make supporting materials not already included in the administrative record available to EPA as directed bythe Regional Administrator. (A comment period longer than 30 days maybe necessary to give commenters a reasonable opportunity to comply withthe requirements of this section. Additional time shall be granted under §124.10 to the extent that a commenterwho 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 periodreopened if the procedures of this paragraph could expedite the decisionmaking process. When the public comment period is reopened under thisparagraph, all persons, including applicants, who believe any condition of a draft permit is inappropriate or that the Regional Administrator’s tentativedecision 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 forfiling 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 than60 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 ofbasis 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 onthe 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


### 333 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, afinal 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 lifeof 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 thepermit 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 newinjection 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 contestedshall be stayed together with the contested conditions. The Regional Administrator shall identify the stayedprovisions of permits for existing facilities, injection wells, and sources. All other provisions of the permit for the existing facility, injection well, orsource 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 Administratorshall, 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 thegrounds that an appeal to the Administrator under §124.19 of one permit mayresult 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 grantedbased 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 anynew permit are stayed under this section, comply with the conditions of the existing permit which correspond tothe 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


### 334 40 CFR Ch. I (7–1–15 Edition) § 124.18

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 allsignificant 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 forfinal 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 anyfinal 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 tothe 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 publishedmaterials 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 isspecifically 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 thischapter, 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 thedraft 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 tothe 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


### 335 Environmental Protection Agency § 124.19

the Environmental Appeals Boardwithin 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 atthe 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’scontentions 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, byproviding 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 beraised 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 documentissued pursuant to §124.17, then petitioner must provide a citation to therelevant comment and response and explain why the Regional Administrator’s response to the comment wasclearly 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 recordwithin 21 days after the filing of the petition.

(2) In all other permit appeals underthis 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 recordwithin 30 days after the filing of a petition.

(3) A permit applicant who did notfile 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 isor 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 newsource 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 thereasons 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 replywithin 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 underthis section must contain, under appropriate headings:


### 336 40 CFR Ch. I (7–1–15 Edition) § 124.19

(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 theEnvironmental Appeals Board’s attention may be appended to the brief submitted. If the brief includes attachments, a table must be included thatprovides the title of each appended document and assigns a label identifying where it may be found (e.g., Excerptsfrom 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 maycomply 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 (ifany), statement requesting oral argument (if any), statement of compliancewith the word limitation, and any attachments do not count toward the
word limitation. The EnvironmentalAppeals 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 suchlimitations, 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 amicusbriefs 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 allprocedural 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 reliefsought, 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 thegrounds for opposition and the legal argument necessary to support the motion. The response must be filed within15 days after service of the motion unless the Environmental Appeals Board
shortens or extends the time for response.

(4) Reply. Any reply to a responsefiled under paragraph (f)(3) of this section must be filed within 10 days after service of the response. A reply mustnot 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 partiesto 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


### 337 Environmental Protection Agency § 124.19

Board will apply a presumption against oral argument in PSD or other newsource 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 atthe 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 thepermit 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 thedocuments. 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 otherwisepermitted 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 Clerkof the Environmental Appeals Board either electronically, by mail, or by hand-delivery.

(i) Electronic filing. Documents thatare 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 theEnvironmental Appeals Board. All documents filed electronically must include the full name of the person filing below the signature line. Compliance with Environmental Appeals Boardelectronic 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 ofthe Clerk of the Environmental Appeals Board at: U.S. EnvironmentalProtection 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. Theperson 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, ifavailable, 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, EPAEast Building, 1201 Constitution Avenue NW., Room 3334, Washington, DC 20004. The original and two copies ofeach 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 filingthe 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 ofservice must be appended to each document filed stating the names of persons


### 338 40 CFR Ch. I (7–1–15 Edition) § 124.19

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 timeprior 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 hasheld 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 reviewprocedures 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 ofthe appeal and the decision does not include a remand of the proceedings; or (iii) Upon the completion of remandproceedings if the proceedings are remanded, unless the Environmental Appeals Board’s remand order specificallyprovides 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 F EDERAL R EGISTER

.

(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 mustbe 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 pursuantto §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 othersubmissions from the record, and denying any or all relief sought by the


### 339 Environmental Protection Agency § 124.21

party in the proceeding. Additionally, for good cause, the Board may relax orsuspend the filing requirements prescribed by these rules or Board order.

(o) General NPDES permits. (1) Persons affected by an NPDES general permitmay 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 anindividual NPDES permit for any discharger eligible for authorization todischarge 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 paragraphwithin 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 orevent 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 toJune 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 pursuantto 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 June13, 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 beingreturned 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 otherparties 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.


### 340 40 CFR Ch. I (7–1–15 Edition) § 124.31

(d) For any proceeding to terminate an NPDES or RCRA permit commencedon 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

S OURCE : 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 RCRApart 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 toRCRA part B applications seeking renewal of permits for such units, where the renewal application is proposing asignificant 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 permitissuance 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 wastemanagement facilities for which facility owners or operators are seeking coverage under a RCRA standardizedpermit (see 40 part 270, subpart J), including renewal of a standardized permit for such units, where the renewalis proposing a significant change in facility operations, as defined at §124.211(c). The requirements of thissection 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 partB 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 musthold at least one meeting with the public in order to solicit questions fromthe community and inform the community of proposed hazardous waste management activities. The applicant shallpost 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 apart 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 equivalentjurisdiction that hosts the proposed location of the facility. In addition, the Director shall instruct the applicant to publish the notice in newspapers ofgeneral circulation in adjacent counties or equivalent jurisdictions, wherethe 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. Theapplicant 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


### 341 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 ofState 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 orcopied 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 telephonenumber 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 RCRApart 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 toRCRA part B applications seeking renewal of permits for such units under 40 CFR 270.51. For the purposes of thissection 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 areseeking 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 submittedto 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 numberof the permitting agency’s contact office, and a mailing address to which information, opinions, and inquiries maybe 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 orcopied 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]


### 342 40 CFR Ch. I (7–1–15 Edition) § 124.33

§ 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, theDirector 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 Directordetermines, 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 Directorfinds 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 theDirector shall specify a more appropriate site.

(e) The Director shall specify requirements for informing the public aboutthe 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 shallbe 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) responsiblefor 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.


### 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 oroperator of any facility or activity subject to regulation under 40 CFR 52.21 or by an approved State.

Permit or PSD permit means a permitissued 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 isphysically 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 ofColumbia, 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 shallprovide 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 shallprovide 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 oroperator 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 whenthe 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 theotherwise applicable emission limitations to a facility or activity whose emissions would affect a Class I area.)

(c) Variances authorized by 40 CFR52.21 (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 grantedunder 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 additionalrequirements 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 purposesof the Water Quality Standards program is likewise qualified for suchtreatment 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]


### 344 40 CFR Ch. I (7–1–15 Edition) § 124.52

§ 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 certainconcentrated animal feeding operations (§122.23), concentrated aquatic animal production facilities (§l22.24), storm water discharges (§122.26), andcertain other facilities covered by general permits (§122.28) that do not generally require an individual permitmay 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) ofthis section, the Regional Administrator shall notify the discharger inwriting 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 wasproper 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 permitapplication or other information regarding the discharge under section 308of 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. Thequestion whether the initial designation was proper will remain open forconsideration 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), EPAmay 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 cannotissue 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 bedeemed 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 certifyingState 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 theState 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 isbased. Failure to provide such a citation waives the right to certify with respect to that condition; and


### 345 Environmental Protection Agency § 124.55

(3) A statement of the extent towhich 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 forany 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 isan approved NPDES State and the permit is due for reissuance, process thepermit application under normal procedures; or

(2) Forward a certification meetingthe requirements of §124.53 to the Regional Administrator.

(b) When EPA issues a tentative decision on the request for a varianceunder CWA section 301(h), and no certification has been received underparagraph (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 todeny 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 section301(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 Statelaw 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 actionon 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 ofthe 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 stringentpermit 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 inany 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 andmay not be made through the procedures in this part.


### 346 40 CFR Ch. I (7–1–15 Edition) § 124.56

(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 ofspecific effluent limitations and conditions or standards for sewage sludge use or disposal, including a citation to the applicable effluent limitation guideline, performance standard, orstandard for sewage sludge use or disposal as required by §122.44 and reasonswhy they are applicable or an explanation of how the alternate effluent limitations were developed.

(b)(1) When the draft permit containsany 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 thedischarge 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, ofthe 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 thermalcomponent 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 theCorps 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 DistrictEngineer 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


### 347 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 shallbe made through the applicable procedures of the Corps of Engineers, andmay 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 theU.S. Fish and Wildlife Service, the National Marine Fisheries Service, or anyother State or Federal agency with jurisdiction over fish, wildlife, or public health advises the Director in writingthat 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 theagencies referred to in this section before issuing a draft permit and may reflect their views in the statement ofbasis, 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 rigor 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 irreparableenvironmental 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 finalpermit 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 shallidentify 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 willhave 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


### 348 40 CFR Ch. I (7–1–15 Edition) § 124.61

(iv) Construction activities, such assegregation of waste streams or installation of equipment, which would partially meet the final permit conditions
and could also be used to achieve thedischarger’s proposed alternative conditions.

(c) In addition to the requirements of §124.16(c)(2), when an appeal is filedunder §124.19 on an application for a renewal of an existing permit and upon written request from the applicant, theRegional Administrator may delete requirements from the existing permit which unnecessarily duplicateuncontested 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 sectionthat is forwarded by the State Director, or that is submitted to the Regional Administrator by the requesterwhere 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 preparea 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 certainwater 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 EPAby the requester where EPA is the permitting authority. If the Administrator (or his delegate) approves thevariance, the State Director or Regional Administrator may prepare adraft 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 varianceswhen 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:


### 349 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 inquestion, 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 thiswould significantly delay the processing of the permit. In that case the processing of the variance request maybe separated from the permit in accordance with paragraph (a)(3) of thissection, 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 ofthe 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 thiswould significantly delay the processing of the permit. In that case the processing of the variance request maybe separated from the permit in accordance with paragraph (a)(3) of thissection, and the processing of the permit shall proceed without delay.

(2) If, at the time that a request fora variance is filed the Regional Administrator has given notice under §124.10of a draft permit covering the discharge in question, but that permit has not yet become final, administrative proceedings concerning that permitmay be stayed and the Regional Administrator shall prepare a new draft permit including a tentative decisionon the request, and the fact sheet required by §124.8. However, if this will significantly delay the processing ofthe existing draft permit or the Regional Administrator, for other reasons, considers combining the variance request and the existing draft permitinadvisable, 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 accompaniedby 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 bothproceedings, 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 section301(g), any otherwise applicable standards and limitations under CWA section 301 shall not be stayed unless:

(1) In the judgment of the RegionalAdministrator, 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 substantiallikelihood that the discharger will succeed on the merits of its appeal; and


### 350 40 CFR Ch. I (7–1–15 Edition) § 124.65

(3) The discharger files a bond orother 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 shouldrequest it and furnish supporting reasons at the time their permit applications are filed under §122.21. The Regional Administrator will then decidewhether 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, andshall 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 decisionon permit issuance, the Regional Administrator may issue a permit under §124.15 for a term up to 5 years. This permit shall require achievement ofthe effluent limitations initially proposed for the thermal component of thedischarge no later than the date otherwise required by law. However, the permit shall also afford the permittee an opportunity to file a demonstrationunder 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 allowingthe permittee to take necessary measures to meet the final compliance datein the event its request for modification of thermal limits is denied.

(d) Whenever the Regional Administrator defers the decision under CWAsection 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

S OURCE : 70 FR 53449, Sept. 8, 2005, unless
otherwise noted.

G ENERAL I NFORMATION A BOUT S TANDARDIZED P ERMITS

§ 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 part267 (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.


### 351 Environmental Protection Agency § 124.204

(b) What comprises the supplemental portion? The supplemental portion of astandardized permit consists of sitespecific terms and conditions, beyond those of the uniform portion, that theDirector 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, thesesupplemental 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 thesame 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]

A PPLYING FOR A S TANDARDIZED P ERMIT

§ 124.202 How do I as a facility owneror 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 myindividual RCRA permit to a standardized permit?

Where all units in the RCRA permitare 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.

I SSUING A S TANDARDIZED P ERMIT

§ 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 includein 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 forthe standardized permit, you must tentatively deny coverage under thestandardized 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.


### 352 40 CFR Ch. I (7–1–15 Edition) § 124.205

(v) Permit conditions cannot ensureprotection 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 facilityowner or operator. Your tentative determination under this section to denyor grant coverage under the standardized permit, including any proposedsite-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 applicantduring 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., closureplans, 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 ofthis 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 apermit. 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 isthe 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 ofpermit 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 notapply 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 finalpermit 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 partapply (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


### 353 Environmental Protection Agency § 124.207

apply; however, in the context of theRCRA 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 §124.208instead 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 theRCRA 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 tothe 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 demonstratedhistory 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 isnot 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 petitionyou 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 anindividual 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 statementthat, on the effective date of the individual RCRA permit, the facility’sstandardized 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.

O PPORTUNITIES FOR P UBLIC I NVOLVE

MENT IN THE S TANDARDIZED P ERMIT P ROCESS

§ 124.207 What are the requirements for public notices?

(a) You, as the Director, must provide public notice of your draft permitdecision 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


### 354 40 CFR Ch. I (7–1–15 Edition) § 124.208

wildlife resources and over coastal zonemanagement 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 weeklymajor 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 thedraft 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 owneror 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 45days for people to submit written comments on your draft permit decision. This time is referred to as the publiccomment 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 publichearing, they must submit their request in writing to you. Their request
must state the nature of the issuesthey 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 thepublic comment period under paragraph (a) of this section. You may alsohold 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).


### 355 Environmental Protection Agency § 124.212

(f) In their written comments andduring 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 finalstandardized 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’sability to meet the general requirements ( i.e. , those terms and conditionsin 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 materialsupplied during the public comment period, you may document your responseto 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.

M AINTAINING A S TANDARDIZED P ERMIT

§ 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 permitthat 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 permitthat 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 tothe standardized permit without obtaining approval from the Director. However, you must first determine whether the routine change you willmake 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 Noticeof Intent to operate under the standardized permit, then before you make the routine changes you must:


### 356 40 CFR Ch. I (7–1–15 Edition) § 124.213

(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 approvalmay 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 ameeting with the public to solicit questions from the community and informthe community of your proposed modifications to your hazardous waste management activities. You must post a sign-in sheet or otherwise provide avoluntary 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, youmust 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 ofattendees 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 applicantduring 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 forprocessing an initial request for coverage under the standardized permitapply 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 EconomicVariances From Best Available Technology Economically Achievable Under Section 301(c) of the Act [ Reserved ]

Subpart F—Criteria for Granting WaterQuality 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.


### 357 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 waterquality which assures protection of public water supplies; assures the protectionand propagation of a balanced, indigenous population of shellfish, fish, andwildlife; 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.

A PPENDIX TO S UBPART G OF P ART 125—A PPLI

CANT Q UESTIONNAIRE FOR M ODIFICATION

OF S ECONDARY T REATMENT R EQUIREMENTS

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 toCooling 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 Iapply 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?


### 358 40 CFR Ch. I (7–1–15 Edition) § 125.1

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?

A UTHORITY : The Clean Water Act, 33 U.S.C.
1251 et seq., unless otherwise noted.

S OURCE : 44 FR 32948, June 7, 1979, unless
otherwise noted.



### Subpart A—Criteria and Standardsfor Imposing TechnologyBased Treatment Requirements Under Sections 301(b) and 402 of the Act

§ 125.1 Purpose and scope.

This subpart establishes criteria andstandards 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 CleanWater 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 morestringent 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 onfundamentally different control technology than under permits for an industrial category issued before such date, compliance as expeditiously as practicable but in no case later thanthree 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


### 359 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) complianceis 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), complianceis 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 bycategory or subcategory. These effluent limitations are not applicable tothe 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 extentthat EPA-promulgated effluent limitations are inapplicable. The permitwriter 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,


### 360 40 CFR Ch. I (7–1–15 Edition) § 125.3

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) ofthis 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 LC 50 for fat head
minnow of the effluent from outfall 001 shall be greater than 25%’’). Provided,
That is shown that the limits reflectthe 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 permitwriter must consider the following factors:

(1) For BPT requirements: (i) The totalcost 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 environmentalimpact (including energy requirements).

(2) For BCT requirements: (i) The reasonableness of the relationship betweenthe 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 environmentalimpact (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’’ techniquessuch 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 treatmentrequirements 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 thatsuch 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 thissubpart 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


### 361 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 arepresent in the waste stream, and a specific BAT limitation upon the toxicpollutant(s) is not feasible for economic or technical reasons;

(B) The permit identifies which toxicpollutants 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 arepresent 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 treatmentrequired 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 ofpollutants 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 intoaquaculture 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 (includingmonitoring and reporting requirements) as are necessary to comply with those parts. Technology-based effluentlimitations need not be applied to discharges into the approved project except with respect to toxic pollutants.


### 362 40 CFR Ch. I (7–1–15 Edition) § 125.11

§ 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, thatthe use of the pollutant to be discharged to the aquaculture project willresult 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 thecrop 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 limitationsapplicable to the supplier of the pollutant that would govern if the aquaculture project were itself a point source. The approval of an aquacultureproject 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 aplan or an amendment to a plan approved under section 208(b) of the Act.

(c) No permit shall be issued for anyaquaculture 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 designatedproject area. For example, the designated project area shall not include the entire width of a watercourse, sinceall 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 theconstruction or creation of a reef, barrier or containment structure shall notunduly 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 navigablewaters 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 andlimitations when entering the designated project area.



### Subpart C [ Reserved ]

Subpart D—Criteria and Standardsfor 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 theAct (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 tothe discharger are fundamentally different from the factors considered by EPA in development of the national


### 363 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 maynot 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 lessstringent as they apply to certain dischargers within an industrial category or subcategory. This will only be doneif 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 facilitiesrelated to the discharger are fundamentally different from the factors considered during development of thenational limits may request a fundamentally different factors variance under §122.21(l)(1). In addition, such avariance may be proposed by the Director in the draft permit.

(Secs. 301, 304, 306, 307, 308, and 501 of theClean 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, CleanAir 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 dischargecontrolled 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 inaccordance 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 lessstringent 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 limitsmore stringent than required by national limits shall be approved only if:

(1) The alternative effluent limitation or standard requested is no morestringent 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:


### 364 40 CFR Ch. I (7–1–15 Edition) § 125.32

(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 printeddocumentation 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 notconsidered 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’sprocess 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, andconfiguration 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 affectthe 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 nationallimits 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 ofthe Act to impose more stringent limitations than those required by Federal
law.

§ 125.32 Method of application.

(a) A written request for a varianceunder 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 arefundamentally 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 datacollected 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 ]


### 365 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 Modifyingthe Secondary Treatment Requirements Under Section 301(h) of the Clean Water Act

A UTHORITY : Clean Water Act, as amended by the Clean Water Act of 1977, 33 U.S.C. 1251 et seq., unless otherwise noted.

S OURCE : 59 FR 40658, Aug. 9, 1994, unless
otherwise noted.

§ 125.56 Scope and purpose.

This subpart establishes the criteriato be applied by EPA in acting on section 301(h) requests for modificationsto 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 402which modifies the requirements of paragraph (b)(1)(B) of this section with respect tothe 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 withpollutants 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 onlythose 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 sameamount 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 ofthe 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 movementand 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 ofparagraph (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. Amunicipality which applies secondary treatment shall be eligible to receive a permit pursuant to this subsection which modifies


### 366 40 CFR Ch. I (7–1–15 Edition) § 125.58

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 marinewaters. 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 exhibitcharacteristics 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 authorizethe 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 suchuses. The prohibition contained in the preceding sentence shall apply without regardto the presence or absence of a causal relationship between such characteristics andthe 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 Apexconsisting 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 thedate of enactment of the Municipal Wastewater Treatment Construction Grant Amendments of 1981, except that a publiclyowned 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 ControlAct which modifies the requirements of subsection (b)(1)(B) of section 301 of such Actshall 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 beententatively 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) modifiedpermit. Large applicants have populations contributing to their POTWs equal to or more than 50,000 people oraverage 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.


### 367 Environmental Protection Agency § 125.58

(d) Application means a final application previously submitted in accordance with the June 15, 1979, section301(h) regulations (44 FR 34784); an application submitted between December29, 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 TreatmentRequirements,’’ 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 adjacentwaters 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 outfallimprovements, 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 section301(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 anysource 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 reductionof the amount of pollutants, the elimination of pollutants, or the alteration of the nature of pollutant properties inwastewater prior to or in lieu of discharging or otherwise introducing such pollutants into a POTW. The reductionor 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 atleast 30 percent of the biochemical oxygen demanding material and of the suspended solids in the treatment worksinfluent, 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,


### 368 40 CFR Ch. I (7–1–15 Edition) § 125.59

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 usedprimarily 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 theterritorial 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 equivalencymeans that the amount of a toxic pollutant removed by the combination ofthe 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 notundergone 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 meansany biological population or community that might be adversely affected by the applicant’s modified discharge.

(z) Stressed waters means those oceanwaters 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 otherthan 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, providedthat 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 basedon 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 notsupport a balanced indigenous population of shellfish, fish, and wildlife, or
allow recreation in and on the waters or which exhibit ambient water qualitybelow applicable water quality standards adopted for the protection of public water supplies, shellfish, fish, and
wildlife or recreational activities orsuch 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 acausal 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.


### 369 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 forpermit 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 ofthis 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 anddiffuser location and design in accordance with §125.59(f)(2)(i); and

(2) Other applicants may revise theirapplications 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 changesin 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 additionalinformation supports changes in proposed treatment levels and/or outfalllocation 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 withtheir application is correct and complete;

(ii) Provide additional analysis anddata 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 thissection, 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 theAdministrator 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. Theproject plan shall include dates for design and construction of necessary facilities, submittal of influent/effluentdata, 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 includeany necessary data collection activities, submittal of additional information, and/or development of appropriate pretreatment limits to demonstratecompliance with §125.65. The Administrator will review the project plan andmay require revisions prior to submission of the additional information.


### 370 40 CFR Ch. I (7–1–15 Edition) § 125.59

(iii) POTWs which submit additional
information must:

(A) Modify their NPDES form and Application Questionnaire as needed to
ensure that the information filed withtheir 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 doesnot 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 salinewaters shall be submitted to the appropriate EPA Regional Administrator no later than December 29, 1982.

(ii) The application for renewal of a301(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 grantpermission 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 interstateagency(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 intentto 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 tentativedecision 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; forall 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 revisionto the application or additional information to EPA. Extensions to this deadline may be provided by EPA upon request. However, EPA will not beginreview 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.


### 371 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 oncurrent/modified discharge characteristics, water quality, biological conditions or oceanographic characteristics
must:

(i) Demonstrate that they made adiligent effort to provide such information with their application and were unable to do so, and

(ii) Submit a plan of study, includinga schedule, for data collection and submittal of the additional information. EPA will review the plan of study andmay require revisions prior to authorizing submission of the additional information.

(h) Tentative decisions on section 301(h) modifications. The Administrator shallgrant 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 compliancewith 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 shallbe 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 modificationissued 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, theterms ‘‘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, arenot 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 renewalwill occur prior to August 9, 1996, applicants may have additional time to come into compliance with §§125.60 and 125.65, as determined appropriate byEPA 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 withdrewits tentative approval or issued a tentative denial prior to February 4, 1987.

§ 125.60 Primary or equivalent treatment requirements.

(a) The applicant shall demonstratethat, at the time its modification becomes effective, it will be dischargingeffluent 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) ofthis section to provide 30 percent removal of BOD be allowed on an averaging basis different from monthly


### 372 40 CFR Ch. I (7–1–15 Edition) § 125.61

(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. Circumstancesbeyond 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 coldinfluent. 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 CFR35.2005(b)(16) plus the additional criterion that inflow is nonexcessive ifthe 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 aless 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 dischargewill comply with the above water quality standard(s); and

(2) Provide a determination signed bythe State or interstate agency(s) authorized to provide certification under §§124.53 and 124.54 that the proposed modified discharge will comply withapplicable 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 ofwater 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 adequateinitial 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 waterquality 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 waterquality 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 thatpollutant 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 conditionsreflecting periods of maximum stratification and during other periods when


### 373 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 toaquatic 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 suspectedcarcinogen, 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 levelthat has been consistently used, as determined by the Administrator, as the basis of the State’s EPA-approvedwater quality standards for carcinogenic pollutants. Alternatively, the Administrator may consider a State’s
recommendation to use a risk levelthat 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 theState has held a public hearing to review the selection of the risk level, in accordance with provisions of Statelaw 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 Administratorshall 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, specifiedin the EPA section 304(a)(1) water quality criteria documents as protective against the potential toxicity of thecontaminant through ingestion of contaminated aquatic organisms.

(3) The requirements of paragraphs (a)(1) and (a)(2) of this section apply inaddition 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 modifieddischarge 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 wouldbe 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 assuresprotection 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 ofinitial 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.


### 374 40 CFR Ch. I (7–1–15 Edition) § 125.63

(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 ofphytoplankton 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 differsubstantially 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 modifieddischarge must allow for the attainment or maintenance of water quality
which allows for recreational activitiesbeyond 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 orin 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 andcan be completed or implemented expeditiously; (2) Detailed analyses projecting changes in average and maximum monthly flow rates and composition ofthe 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 mustdemonstrate compliance with paragraphs (a) through (e) of this section not only on the basis of the applicant’sown 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 failureto meet the requirements of paragraphs (a) through (e) of this section isentirely attributable to conditions resulting from human perturbationsother 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 compliancewith 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 humanperturbation 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 modifieddischarge on the marine biota, demonstrate compliance with applicable


### 375 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 tostudy 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 rateof 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 monitoringprogram before issuing a modified permit and during the term of any modified permit.

(b) Biological monitoring program. The biological monitoring program for bothsmall 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 whichare most likely affected by the discharge to enable comparisons withbaseline 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 andpesticides 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 ofthe ZID, in other areas of expected impact, and at appropriate reference sitesto 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 theydischarge at depths greater than 10 meters and can demonstrate through a suspended solids deposition analysisthat 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, biologicalmonitoring 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 ofthe 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 dischargeinvolving 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 thebasis 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 theeffectiveness of the toxic control program.


### 376 40 CFR Ch. I (7–1–15 Edition) § 125.64

(2) The permit shall require the collection of data on a frequency specified in the permit to provide adequate data for evaluating compliance with thepercent removal efficiency requirements under §125.60.

§ 125.64 Effect of the discharge on other point and nonpoint sources.

(a) No modified discharge may resultin 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 ornonpoint 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 thePOTW by one or more industrial dischargers and that seeks a section 301(h)
modification.

(2) The requirements of this sectionapply 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 anindustrial 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 thatachieves 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 treatmentworks 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 worksby an industrial discharger that is subject to a categorical pretreatment standard for the toxic pollutant, the categorical standard and a local limitor 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 forwhich there is no applicable categorical pretreatment standard for the toxic pollutant, and the 40 CFR part 403 analysis on the toxic pollutant showsthat 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, whereappropriate, 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.


### 377 Environmental Protection Agency § 125.66

(d) Secondary removal equivalency. An applicant shall demonstrate that itachieves secondary removal equivalency through the use of a secondary treatment pilot (demonstration) plantat the applicant’s facility which provides an empirical determination ofthe amount of a toxic pollutant removed by the application of secondary treatment to the applicant’s influent where the applicant’s influent has notbeen pretreated. Alternatively, an applicant may make this determinationusing 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 toassure 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 supplementor 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 orpesticides 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). Theapplicant 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 existingpretreatment requirements and authorities must be maintained throughthe 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 aproposed public education program designed to minimize the entrance ofnonindustrial toxic pollutants and pesticides into its POTW(s) which shall be implemented no later than 18 monthsafter issuance of a 301(h) modified permit.

(2) The applicant shall also developand implement additional nonindustrial source control programs on theearliest 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 nonindustrialsource control programs under paragraph (d)(2) of this section shall include the following schedules which are to be implemented no later than 18 monthsafter issuance of a section 301(h) modified permit:


### 378 40 CFR Ch. I (7–1–15 Edition) § 125.67

(i) A schedule of activities for identifying nonindustrial sources of toxic pollutants and pesticides; and

(ii) A schedule for the developmentand implementation of control programs, to the extent practicable, fornonindustrial 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 whichthe 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 minimizeexisting 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 whichthe 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 allapplicable 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.

A PPENDIX TO S UBPART G OF P ART 125—
A PPLICANT Q UESTIONNAIRE FOR M ODIFICATION OF S ECONDARY T REATMENT R EQUIREMENTS

OMB Control Number 2040–0088 Expires on2/28/96 Public reporting burden for this collection of information is estimated to average 1,295 - 19,552 hours per response, for smalland large applicants, respectively. The reporting burden includes time for reviewinginstructions, 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 andBudget, Office of Information and Regulatory Affairs, Attn: Desk Officer for EPA, Washington, DC 20503.

I. I NTRODUCTION

1. This questionnaire is to be submitted byboth 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 atechnical 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)


### 379 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 neardistinctive 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 compliancewith 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 additionaldata 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 thatthe 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. G ENERAL I NFORMATION AND B ASIC D ATA R EQUIREMENTS

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 totaldischarge design flow upon which this application is based?

b. Provide a map showing the geographiclocation 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 descriptionand 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 adetailed 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 (BOD 5 ), suspended solids, and pH upon which your application for a modification is based:

—BOD 5
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 (m 3 /sec):
—minimum —average dry weather —average wet weather
—maximum —annual average

BOD 5 (mg/L) for the following plant flows:

—minimum —average dry weather —average wet weather
—maximum —annual average
Suspended solids (mg/L) for the following

plant flows:

—minimum —average dry weather —average wet weather
—maximum —annual average

Toxic pollutants and pesticides (ug/L):
—list each toxic pollutant and pesticide—list each 304(a)(1) criteria and toxic pollutant and pesticide

pH:
—minimum
—maximum

Dissolved oxygen (mg/L, prior to chlorination) for the following plant flows:

—minimum —average dry weather —average wet weather
—maximum —annual average
Immediate dissolved oxygen demand (mg/L).

5. (L,S) Effluent Volume and Mass Emissions [40 CFR 125.62(e)(2) and 125.67]

a. Provide detailed analyses showing projections of effluent volume (annual average,

m 3 /sec) and mass loadings (mt/yr) of BOD 5 and suspended solids for the design life ofyour treatment facility in five-year increments. If the application is based upon an


### 380 40 CFR Ch. I (7–1–15 Edition) Pt. 125, Subpt. G, App.

improved or altered discharge, the projections must be provided with and without the proposed improvements or alterations.

b. Provide projections for the end of your five-year permit term for 1) the treatment facility contributing population and 2) the average daily total discharge flow for the maximum month of the dry weather season.

6. (L,S) Average Daily Industrial Flow (m 3 / sec). Provide or estimate the average daily industrial inflow to your treatment facility for the same time increments as in question II.A.5 above. [40 CFR 125.66]

7. (L,S) Combined Sewer Overflows [40 CFR 125.67(b)]

a. Does (will) your treatment and collection system include combined sewer overflows?

b. If yes, provide a description of your plan for minimizing combined sewer overflows to the receiving water.

8. (L,S) Outfall/Diffuser Design. Provide the following data for your current dischargeas 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 (m 3 /sec)

B. Receiving Water Description

1. (L,S) Are you applying for a modification based on a discharge to the ocean [40 CFR 125.58(n)] or to a saline estuary [40 CFR 125.58(v)]? [40 CFR 125.59(a)].

2. (L,S) Is your current discharge or modified discharge to stressed waters as definedin 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 onthe 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 yourdischarge 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:

—BOD 5 (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 dissolvedoxygen 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


### 381 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 limitedto) species composition; abundance; dominance and diversity; spatial/temporal distribution; growth and reproduction; diseasefrequency; 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 anycertification 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 bythe modified discharge. Identify any critical habitat that may be affected by the modified discharge and evaluate whetherthe 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. T ECHNICAL E VALUATION

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 thezone 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 accumulatewithin the vicinity of the modified discharge?

b. What are the calculated area(s) and rate(s) of sediment accumulation within the vicinity of the modified discharge(s) (g/m 2 / yr)?

c. What is the fate of settleable solids transported beyond the calculated sediment
accumulation area?

B. Compliance with Applicable Water Quality

Standards and CWA §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 initialdilution for the period(s) of maximum stratification and any other critical period(s) ofdischarge 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


### 382 40 CFR Ch. I (7–1–15 Edition) Pt. 125, Subpt. G, App.

the bottom due to steady sediment demand and resuspension of sediments?

4. (L,S) What is the increase in receivingwater suspended solids concentration immediately following initial dilution of the modified discharge(s)?

5. (L) What is the change in receivingwater pH immediately following initial dilution of the modified discharge(s)?

6. (L,S) Does (will) the modified dischargecomply 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 plantconditions 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, includingwater quality standards or, if the determination has not yet been received, a copy of aletter 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 recreationalfisheries been impacted adversely by the current discharge (e.g., warnings, restrictions, closures, or mass mortalities) or will they beimpacted 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 thebenthic 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 thealtered 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 tostressed 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 ofhuman 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.


### 383 Environmental Protection Agency Pt. 125, Subpt. G, App.

2. (L,S) What are the existing and potentialimpacts 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 modifiedif 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 dryweather 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 orsuspected industrial sources of toxic pollutants and pesticides identified in (1)(c) aboveas required by 40 CFR 125.66(b). (* to the extent practicable) 2. (S)a. Are there any known or suspectedwater quality, sediment accumulation, or biological problems related to toxic pollutantsor 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 nonindustrialtoxics control programs to meet the requirements of 40 CFR 126.66(d)(3).

(L)d. Provide a schedule for development and implementation of a nonindustrialtoxics 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 entranceof 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 industrialpretreatment 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 pretreatmentrequirements 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 ofthose toxic pollutants, including a schedule for compliance, by using a secondary treatment pilot plant. [40 CFR 125.65(d)]


### 384 40 CFR Ch. I (7–1–15 Edition) § 125.70



### 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, afteropportunity 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 dischargefrom 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 ofthe thermal component of any discharge which are established under section 316(a) and this subpart.

(b) Representative important speciesmeans 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 alack of domination by pollution tolerant species. Such a community may include historically non-native speciesintroduced 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 notinclude 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 todemonstrate 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 otherinformation which the discharger intends to submit for the demonstration;
and

(4) Such data and information as may
be available to assist the Director inselecting the appropriate representative important species.

(b) After submitting the early screening information under paragraph (a) ofthis 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 dischargershall submit for the Director’s approval a detailed plan of study whichthe discharger will undertake to support its section 316(a) demonstration. The discharger shall specify the nature


### 385 Environmental Protection Agency § 125.73

and extent of the following type of information to be included in the plan of study: Biological, hydrographical andmeteorological data; physical monitoring data; engineering or diffusionmodels; 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 qualitystandards. 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 studieswhich the Director subsequently determines necessary to support the demonstration, including such studies orinspections as may be necessary to select representative important species.The discharger may provide any additional information or studies which thedischarger 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 anyaffected State of the filing of the request and shall consider any timely recommendations they submit.

(e) In making the demonstration thedischarger 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.

N OTE : At the expiration of the permit, any discharger holding a section 316(a) varianceshould 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 thedetermination 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 andlimitations 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 onthe body of water into which the discharge is made. This demonstration
must show that the alternative effluent limitation desired by the discharger, considering the cumulativeimpact 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 theprotection and propagation of the affected species will be assured, the Director may consider any informationcontained 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 absenceof 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 ofsuch previous harm, the desired alternative effluent limitations (or appropriate modifications thereof) will nevertheless assure the protection and propagation of a balanced, indigenous


### 386 40 CFR Ch. I (7–1–15 Edition) § 125.80

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 beendischarging 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

S OURCE : 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 newfacilities. The purpose of these requirements is to establish the best technology available for minimizing adverse environmental impact associated with the use of cooling water intakestructures. 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 tosections 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 technologyavailable for minimizing adverse environmental impact.

(c) New facilities that do not meet the threshold requirements regardingamount of water withdrawn or percentage of water withdrawn for cooling water purposes in §125.81(a) must meetrequirements 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 coolingwater by any sort of contract or arrangement with an independent supplier (or multiple suppliers) of coolingwater 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 toprevent 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 thenew 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 gasextraction point source category as defined under 40 CFR 435.10 and 40 CFR
435.40.


### 387 Environmental Protection Agency § 125.83

§ 125.82 When must I comply with this subpart?

You must comply with this subpartwhen 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 averageof 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 minimizedmakeup and blowdown flows, to withdraw water from a natural or other water source to support contact and/ornoncontact 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 isreturned 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 occurreddue to blowdown, drift, and evaporation.

Cooling water means water used forcontact 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 theprocess or processes used, or from auxiliary operations on the facility’s premises. Cooling water that is used in a manufacturing process either beforeor after it is used for cooling is considered process water for the purposes ofcalculating 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 withdrawnfrom 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 orthrough 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 intakestructure 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 istypically 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 waterfrom 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 thatportion 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 oragainst a screening device during periods of intake water withdrawal.

Lake or reservoir means any inlandbody 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


### 388 40 CFR Ch. I (7–1–15 Edition) § 125.83

with an average hydraulic retentiontime of 7 days or less should be considered a freshwater river or stream.

Maximize means to increase to thegreatest amount, extent, or degree reasonably possible.

Minimize means to reduce to thesmallest amount, extent, or degree reasonably possible.

Natural thermal stratification means the naturally-occurring division of awaterbody 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 and122.29(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 intakeof 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 anew, 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 toa 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 itto 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 otherwisemodified to increase the intake capacity for the new facility.

(2) Examples of facilities that wouldnot 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 ormodified 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 capacitywere 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 wate r means the water body (waters of the U.S.) from which the cooling water is withdrawn.

Thermocline means the middle layerof 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


### 389 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 anew 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 tocomply 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 intakeflow, 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 atyour 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 flowfrom 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, thetotal design intake flow must not disrupt the natural thermal stratification or turnover pattern (where present) of the source water except in cases wherethe 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 technologiesor 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, thereare migratory and/or sport or commercial species of impingement concern tothe 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 thetechnology-based performance requirements in paragraphs (b)(1), (2), and (3) of this section, would still contribute unacceptable stress to the protectedspecies, critical habitat of those species, or species of concern;

(5) You must select and implement design and construction technologiesor 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 lifestages of species of concern to the Director and the Director determinesthat the proposed facility, after meeting the technology-based performance requirements in paragraphs (b)(1), (2),


### 390 40 CFR Ch. I (7–1–15 Edition) § 125.84

and (3) of this section, would still contribute unacceptable stress to the protected species , critical habitat ofthose 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 notto 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 atyour 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 flowfrom 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, thetotal design intake flow must not disrupt the natural thermal stratification or turnover pattern (where present) of the source water except in cases wherethe 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 technologiesor 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, thereare migratory and/or sport or commercial species of impingement concern tothe 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 thetechnology-based performance requirements in paragraphs (c)(1) and (2) ofthis 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 technologiesor 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 wouldachieve were you to implement the requirements of paragraphs (b)(1) and (2)
of this section. This demonstrationmust 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


### 391 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 fisherymanagement 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 flowfrom 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, thetotal design intake flow must not disrupt the natural thermal stratification or turnover pattern (where present) of the source water except in cases wherethe 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 thelocation, 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 complywith any provision of state law, including compliance with applicable statewater 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 thepermit. 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 costsEPA 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 willensure 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


### 392 40 CFR Ch. I (7–1–15 Edition) § 125.86

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 sectionfor Track I or paragraph (c) of this section for Track II when you apply for anew 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 youhave 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 yoursystem that has been designed to reduce your intake flow to a level commensurate with that which can be attained by a closed-cycle recirculatingcooling 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 reusingor recycling water withdrawn for cooling purposes in subsequent industrialprocesses, 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 tomeet 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 demonstratethat 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 annualmean 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 andany supporting documentation and engineering calculations to show thatyour 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 thermalstratification, and any supporting documentation and engineering calculations to show that the natural thermal stratification and turnover pattern willnot be disrupted by the total design intake flow. In cases where the disruption is determined to be beneficial to the management of fisheries for fishand shellfish you must provide supporting documentation and include a written concurrence from any fisheriesmanagement agency(ies) with responsibility for fisheries potentially affectedby 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 submitto the Director the following information in a Design and Construction Technology Plan:


### 393 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 zoneof influence for your cooling water intake structure;

(iii) The owner or operator of a new facility required to install design andconstruction 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 theSource Water Biological Baseline Characterization required by 40 CFR 122.21(r)(4). Examples of appropriatetechnologies include, but are not limited to, wedgewire screens, fine meshscreens, 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. Theplan 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. Providespecies-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 thosespecies 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 demonstratethat 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 annualmean 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 andany supporting documentation and engineering calculations to show thatyour 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 thermalstratification, 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 wherethe disruption is determined to be beneficial to the management of fisheries for fish and shellfish you must provide supporting documentation and includea 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 ComprehensiveDemonstration 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


### 394 40 CFR Ch. I (7–1–15 Edition) § 125.86

that would be achieved through §125.84(b)(1) and (2); or

(ii) [Reserved] (iii) You must develop and submit aplan 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 proposedStudy. 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 scientificallyvalid estimate of potential impingement and entrainment impacts, and provide documentation showing thatthe 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 allmethods 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 includea description of the study area (including the area of influence of the cooling
water intake structure and at least 100meters beyond); taxonomic identification of the sampled or evaluated biological assemblages (including all lifestages of fish and shellfish); and sampling and data analysis methods; and

(iv) You must submit documentationof 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 biologicalresources including: a summary of historical and contemporary aquatic biological resources; determination and description of the target populations ofconcern (those species of fish and shellfish and all life stages that are mostsusceptible to impingement and entrainment); and a description of theabundance 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 besusceptible 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 inimpingement 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 underTrack II. To do this, you must determine the reduction in impingement mortality and entrainment that wouldbe 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 minimizeimpingement 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 lifestages of fish and shellfish to a comparable level to that which you wouldachieve 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


### 395 Environmental Protection Agency § 125.87

technology(ies) suitability for reducingimpingement 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 conductedin the vicinity of the cooling water intake structure and/or site-specific technology prototype studies.

(C) [Reserved] (D) Verification monitoring plan. Youmust 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 proposedor implemented technologies, operational measures. The verificationstudy must begin at the start of operations of the cooling water intake
structure and continue for a sufficient period of time to demonstrate that thefacility is reducing the level of impingement and entrainment to the level documented in paragraph (c)(2)(iv)(B) of this section. The planmust describe the frequency of monitoring and the parameters to be monitored. The Director will use the verification monitoring to confirmthat 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 anew facility, must I perform monitoring?

As an owner or operator of a new facility, you will be required to performmonitoring to demonstrate your compliance with the requirements specified in §125.84.

(a) Biological monitoring. You mustmonitor both impingement and entrainment of the commercial, recreational, and forage base fish and shellfish species identified in either theSource Water Baseline Biological Characterization data required by 40 CFR122.21(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 theSource Water Baseline Biological Characterization data required in 40 CFR122.21(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 thepermit is reissued, if the Director determines the supporting data show that less frequent monitoring wouldstill 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 mustcollect samples to monitor impingement rates (simple enumeration) for each species over a 24-hour period and no less than once per month when thecooling 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 a24-hour period during the primary period of reproduction, larval recruitment, and peak abundance identifiedduring 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 onavailable 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.


### 396 40 CFR Ch. I (7–1–15 Edition) § 125.88

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 devicesduring 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 asdesigned. Alternatively, you must inspect via remote monitoring devices toensure 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 thedata used to complete the permit application and show compliance with therequirements, any supplemental information developed under §125.86, andany compliance monitoring data submitted under §125.87, for a period of at least three (3) years from the date ofpermit 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 ofthe initial permit application and before each permit renewal or reissuance.

(1) After receiving the initial permit application from the owner or operatorof a new facility, the Director must determine applicable standards in §125.84to 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 monitoringdata to determine whether requirements, or additional requirements, for design and construction technologiesor 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 implementedfor a facility through an NPDES permit. As the Director, you must determine, based on the information submitted by the new facility in its permitapplication, the appropriate requirements and conditions to include in the permit based on the track (Track I or Track II) the new facility has chosen tocomply with. The following requirements must be included in each permit:

(1) Cooling water intake structure requirements. At a minimum, the permitconditions 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 determiningcompliance 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


### 397 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 reviewthe Design and Construction Technology Plan required in §125.86(b)(4) to evaluate the suitability and feasibility of the technology proposed to minimizeimpingement mortality and entrainment of all life stages of fish and shellfish. In the first permit issued, youmust put a condition requiring the facility to reduce impingement mortality and entrainment commensuratewith 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 andshellfish. 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 determinewhether 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 startof 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 differenttechnologies 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

S OURCE : 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 tocooling water intake structures at existing facilities that are subject to this subpart. These requirements include a number of components. These includestandards for minimizing adverse environmental impact associated with the use of cooling water intake structures and required procedures (e.g., permit application requirements, informationsubmission requirements) for establishing the appropriate technology requirements at certain specified facilities as well as monitoring, reporting, and recordkeeping requirements todemonstrate compliance. In combination, these components represent thebest technology available for minimizing adverse environmental impact associated with the use of coolingwater intake structures at existing facilities. These requirements are to beestablished and implemented in National Pollutant Discharge Elimination


### 398 40 CFR Ch. I (7–1–15 Edition) § 125.91

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 requirementsunder 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 FisheriesService have determined that any impingement (including entrapment) or entrainment of Federally-listed speciesconstitutes 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 intakestructures 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 coolingwater 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 bycreating 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 meetrequirements 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 ofthe 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


### 399 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 systempasses 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 combinationthereof. 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 ofthe cooling system have been minimized.

(2) Closed-cycle recirculating systemalso includes a system with impoundments of waters of the U.S. where the impoundment was constructed prior to October 14, 2014 and created for thepurpose of serving as part of the cooling water system as documented in theproject 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 theproject’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 impoundmentfor the purposes of a cooling water system, or other such evidence as the Director finds necessary. For impoundments constructed in uplands or not inwaters 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 ofreplenishing losses to a closed-cycle recirculating system other than thosedue to blowdown, drift, and evaporation from the cooling system, the Director may determine a cooling system is a closed-cycle recirculating systemif the facility demonstrates to the satisfaction of the Director that make-upwater withdrawals attributed specifically to the cooling portion of the cooling system have been minimized.

(d) Contact cooling water means waterused for cooling which comes into direct contact with any raw material, product, or byproduct. Examples of contact cooling water may include butare not limited to quench water at facilities, cooling water in a cracking unit, and cooling water directly addedto food and agricultural products processing.

(e) Cooling water means water usedfor 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 effluentfrom 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.


### 400 40 CFR Ch. I (7–1–15 Edition) § 125.92

(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 fromservice, flow limit devices, and physical limitations of the piping. DIF does
not include values associated withemergency 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 asieve 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 finemesh 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 andunable to reach a fish return; organisms caught in the forebay of a cooling water intake system without any means of being returned to the sourcewaterbody 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, orany 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, hybridcooling 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 leastlikely to survive any form of impingement. For purposes of this subpart, fragile species are defined as those with an impingement survival rate of lessthan 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 deviceduring 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 of0.56 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


### 401 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) meansdeath as a result of impingement. Impingement mortality also includes organisms removed from their natural ecosystem and lacking the ability toescape 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 fortheir 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) isnot 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 thedelayed effects of impingement and entrainment during an extended holding period. Delayed effects of impingement
and entrainment include but are notlimited to temperature change, physical stresses, and chemical stresses.

(r) Minimize means to reduce to thesmallest amount, extent, or degree reasonably possible.

(s) Modified traveling screen means atraveling 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 similarmaterials that protect fish from descaling and other abrasive injury; continuous or near-continuous rotation of screens and operation of fish collectionequipment 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 thatdoes 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 sourcewater, 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 anew facility at §125.83 or is not otherwise already subject to subpart I ofthis part. A stand-alone unit is a separate unit that is added to a facility foreither the same general industrial operation or another purpose. A new unit may have its own dedicated cooling water intake structure, or the new unitmay 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 thecooling water intake structure. Examples of operational measures include, butare not limited to, more frequent rotation of traveling screens, use of a low


### 402 40 CFR Ch. I (7–1–15 Edition) § 125.93

pressure wash to remove fish prior toany high pressure spray to remove debris, maintaining adequate volume ofwater 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 nottaken into consideration by private decision makers in the actions theychoose to take, including effects occurring in the future. Benefits valuationinvolves measuring the physical and biological effects on the environment
from the actions taken. Benefits are generally treated one or more of threeways: A narrative containing a qualitative discussion of environmental effects, a quantified analysis expressed inphysical or biological units, and a monetized benefits analysis in which dollarvalues are applied to quantified physical or biological units. The dollar values in a social benefits analysis arebased on the principle of willingnessto-pay (WTP), which captures monetary benefits by measuring what individuals are willing to forgo in order toenjoy 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. Socialcost represents the total burden imposed on the economy; it is the sum ofall opportunity costs incurred associated with taking actions. These opportunity costs consist of the value lost to society of all the goods and servicesthat 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 theBTA (best technology available) standards for impingement mortality underparagraph (c) of this section, and entrainment under paragraph (d) of thissection including any measures to protect Federally-listed threatened andendangered 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 andentrainment 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). Ifthe Director requires additional information to make the decision on whatBTA 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 existingfacility 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 finalpermit 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


### 403 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 establishedby the Director. The Director may establish interim compliance milestones in the permit.

(3) The owner or operator of a newunit 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) ofthis section, when approved by the Director. In addition, a facility may alsobe 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. Afacility 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 monitoryour 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 waterpasses 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 mustbe 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 theintake does not have a screen, the maximum intake velocity perpendicular tothe opening of the intake must not exceed 0.5 feet per second during minimum ambient source water surfaceelevations. 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 monitoryour intake flow at a minimum frequency of daily; or

(5) Modified traveling screens. A facility must operate a modified traveling


### 404 40 CFR Ch. I (7–1–15 Edition) § 125.94

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 40CFR 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 thefacility must demonstrate the technology is or will be optimized to minimize impingement mortality of all non-fragile species. The Director mustinclude 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 operationalmeasures, 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 demonstratethe system of technology has been optimized to minimize impingement mortality of all non-fragile species. In addition, the Director’s decision will beinformed 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 retainedin a sieve with maximum opening dimension of 0.56 inches and kept for aholding 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 todemonstrate 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 offish impinged over the course of the entire 12 months. The owner or operator of the facility must choose whether todemonstrate 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, reclaimedwater, or other waters reused as cooling water in lieu of water obtained bymarine, estuarine, or freshwater intakes.

(11) De minimis rate of impingement. Inlimited 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 ofimpingement 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 thedraft or proposed permit and the Director’s response to all comments on this


### 405 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 usedfor 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, theowner 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 CFR122.21(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 installationand operation of site-specific entrainment controls. These reports may include updates on planning, design, andconstruction or other appropriate topics as required by the Director. If theDirector determines that the site-specific BTA standard for entrainmentunder 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 beattained 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 newunit at an existing facility must demonstrate to the Director that the technologies and operational measures employed will reduce the level of adverseenvironmental 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 thosewhich 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 usescomprising 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 facilitymust 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.


### 406 40 CFR Ch. I (7–1–15 Edition) § 125.95

(f) Nuclear facilities. If the owner oroperator of a nuclear facility demonstrates to the Director, upon the Director’s consultation with the NuclearRegulatory Commission, the Department of Energy, or the Naval Nuclear Propulsion Program, that compliancewith this subpart would result in a conflict with a safety requirement established by the Commission, the Department, or the Program, the Directormust make a site-specific determination of best technology available forminimizing adverse environmental impact that would not result in a conflictwith 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 destroyingor adversely modifying designated critical habitat (e.g., prey base). Such control measures, monitoring requirements, and reporting requirements may include measures or requirementsidentified 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 requirementsestablished by the Director in the permit on a site-specific basis.

(i) More stringent standards. The Director must establish more stringentrequirements as best technology available for minimizing adverse environmental impact if the Director determines that compliance with the applicable requirements of this sectionwould not meet the requirements of applicable State or Tribal law, including compliance with applicable water quality standards (including designateduses, 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 thissubpart 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 developthe required information by the applicable date for submission, the Director
must establish an alternate schedulefor 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 resourcesagency or the equivalent. If the manmade lake or reservoir contains Federally-listed threatened and endangeredspecies, 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:


### 407 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 180days 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 afacility may, in subsequent permit applications, request to reduce the information required, if conditions at the facility and in the waterbody remainsubstantially unchanged since the previous application so long as the relevant previously submitted information remains representative of current source water, intake structure, coolingwater system, and operating conditions. Any habitat designated as critical or species listed as threatened orendangered after issuance of the current permit whose range of habitat or designated critical habit includeswaters 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 to16 U.S.C. 1539(a) or there is no reasonable expectation of take. The owner or operator of a facility must submit itsrequest 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 mustidentify 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 torequest 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 untilthe 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 allsubmissions 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 habitatthat 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 monitoringrequirements 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 bedetermined 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 mayrequire 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


### 408 40 CFR Ch. I (7–1–15 Edition) § 125.96

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). Suchmonitoring 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 SourceWater 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), thefrequency of flow monitoring and velocity monitoring must be daily andmust be representative of normal operating conditions. Flow monitoring must include measuring cooling waterwithdrawals, 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 ata 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 afterpassing the cooling water intake structure must be counted as 100 percentmortality 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 inoperation. 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 protocolsand frequency of monitoring will be determined by the Director. You mustfollow 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 ofentrainable 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 arecollected. The Director may require additional monitoring necessary to demonstrate compliance with §125.94(e).

(4) The Director may require additional monitoring for impingement orentrainment 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 facilityor 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). Suchmonitoring 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 devicesduring 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


### 409 Environmental Protection Agency § 125.98

designed including those installed to protect Federally-listed threatened orendangered 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 doesnot 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 firstfull 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 asdesigned and is meeting the requirements of §125.94(c).

(g) Additional monitoring related toFederally-listed threatened and endangered species and designated critical habitat at existing facilities. Where the Director requires additional measures to protect Federally-listed threatened orendangered species or designated critical habitat pursuant to §125.94(g), theDirector shall require monitoring associated with those measures.

§ 125.97 Other permit reporting and recordkeeping requirements.

The owner or operator of an existingfacility subject to this subpart is required to submit to the Director the following information:

(a) Monitoring reports. Discharge Monitoring Reports (DMRs) (or equivalentState reports) and results of all monitoring, demonstrations, and other information required by the permit sufficient to determine compliance with thepermit 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 facilitythat impacts cooling water withdrawals or operation of your coolingwater 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 arepart 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 thediscretion to require additional reporting when necessary to establish permitcompliance 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


### 410 40 CFR Ch. I (7–1–15 Edition) § 125.98

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 onthe 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 apermit condition: ‘‘Nothing in this permit authorizes take for the purposes ofa facility’s compliance with the Endangered Species Act.’’

(2) In the case of any permit issued after July 14, 2018, at a minimum, thepermit 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 mustinclude 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 requirementsthat 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 destroyingor 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 MarineFisheries 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 submittedto the Director by any fishery management agency or other relevant information, there are migratory or sport orcommercial 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 ofthe facility, after meeting the entrainment standard of this section, would
still result in undesirable cumulativestressors to Federally-listed and proposed, threatened and endangered species, and designated and proposed critical habitat.

(3) At a minimum, the permit mustrequire 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 CFR122.21(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 Directormay include permit conditions to ensure that the Director will have all theinformation 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


### 411 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 specificto the facility indicate that compliance with the requirements of §125.94(e)(1) or (2) for each new unitwould result in compliance costs wholly out of proportion to the costs EPAconsidered 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 asclose 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 thealternative 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 mayinclude establishing a staggered schedule for multiple facilities serving thesame 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 productionschedules) warrant establishing a different compliance date for any manufacturing facility.

(d) Supplemental Technologies and Monitoring. The Director may require additional technologies for protectionof fragile species, and may require additional monitoring of species of fish and shellfish not already requiredunder §125.95(c). The Director may consider data submitted by other interested parties. The Director may alsorequire additional study and monitoring if a threatened or endangeredspecies 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 impingementreduction 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 collectedbiological data and performance reviews as part of the study. The Director must include in the permitverifiable 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 establishsite-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 environmentalimpact at each facility. These entrainment requirements may also reflect


### 412 40 CFR Ch. I (7–1–15 Edition) § 125.98

any control measures to reduce entrainment of Federally-listed threatened and endangered species and designated critical habitat (e.g. preybase). The Director may reject an otherwise available technology as a basisfor 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 factsheet or statement of basis for the proposed permit under 40 CFR 124.7 or124.8. 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 availablebetter performing entrainment technologies.

(2) The proposed determination in the
fact sheet or statement of basis mustbe 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’sdiscretion based upon the circumstances of each facility.

(i) Numbers and types of organisms entrained, including, specifically, thenumbers 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 particulateemissions or other pollutants associated with entrainment technologies;

(iii) Land availability inasmuch as itrelates 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 followingfactors 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 unitsoccurring 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 appropriatequantity 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, theDirector 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 thesocial 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 entrainmentwithout 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 factorsin paragraphs (f)(2) and (3) of this section and the BTA standards for impingement mortality at §125.95(c). Inmaking the decision on whether to require additional information from the applicant, and what BTA requirements to include in the applicant’s permit for


### 413 Environmental Protection Agency § 125.121

impingement mortality and site-specific entrainment, the Director shouldconsider whether any of the information at 40 CFR 122.21(r) is necessary.

(h) The Director must transmit allpermit 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 priorto 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 (forEPA-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 noticeof 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 ormay be present in the action area, including any proposed control measuresand 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 fordetermining permit conditions and requirements, including any additionalinformation from the facility recommended by the Services upon reviewof 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 isprohibited under the Endangered Species Act unless it is exempted pursuantto 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

S OURCE : 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 dilutionas 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


### 414 40 CFR Ch. I (7–1–15 Edition) § 125.122

would not cause unwarranted economicimpacts 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 harmof 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 andhuman 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 thearea of discharge and surrounding biological communities,

(2) Threat to human health through direct exposure to pollutants orthrough 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 determinewhether a discharge will cause unreasonable degradation of the marine environment based on consideration of:

(1) The quantities, composition andpotential 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 whichmay 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 receivingwater 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 aquaticsites 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 theeffects 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 causeunreasonable 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


### 415 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 theapplicant 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 asmeasured 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, whereappropriate, 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 causeunreasonable degradation of the marine environment.

§ 125.124 Information required to be submitted by applicant.

The applicant is responsible for providing information which the directormay 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 modificationswhich 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 communityand 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

S OURCE : 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 newoffshore oil and gas extraction facilities. The purpose of these requirements is to establish the best technologyavailable for minimizing adverse environmental impact associated with the use of cooling water intake structures at these facilities. These requirements


### 416 40 CFR Ch. I (7–1–15 Edition) § 125.131

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 anystandard established pursuant to sections 301 or 306 of the CWA and applicable to a point source shall require that the location, design, construction, andcapacity 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 regardingamount of water withdrawn or percentage of water withdrawn for cooling water purposes in §125.131(a) must meetrequirements 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 undersection 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 forcooling 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 coolingwater by any sort of contract or arrangement with an independent supplier (or multiple suppliers) of coolingwater 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 coolingwater threshold if, based on the new facility’s design, any monthly averageover 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 Iof 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 subpartwhen 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 followingspecial definitions apply to this subpart:

Cooling water means water used forcontact 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 theprocess or processes used, or from auxiliary operations on the facility’s premises. Cooling water that is used in another industrial process either beforeor 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).


### 417 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 mooredsemi-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 435.10or 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 throughwhich 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 anew 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 seachests 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 atyour 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 technologiesor 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)


### 418 40 CFR Ch. I (7–1–15 Edition) § 125.135

or other relevant information, thereare migratory and/or sport or commercial species of impingement concern tothe 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 thetechnology-based performance requirements in paragraphs (b)(2) and (5) ofthis 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 technologiesor 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 area 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 wouldachieve 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 thosewhich 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 thelocation, design, construction, and capacity of a cooling water intake structure or monitoring requirements at anew offshore oil and gas extraction facility that the Director deems are reasonably necessary to comply with anyprovision of federal or state law, including compliance with applicablestate 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);


### 419 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 costsEPA considered in establishing the requirement at issue or would result in significant adverse impacts on localwater 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 willensure compliance with other applicable provisions of the Clean Water Actand 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 anew 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 newoffshore 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 sectionfor 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 tomeet 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 yourcooling water intake structure is located in an estuary or tidal river, you must provide the mean low water tidal excursion distance and any supportingdocumentation 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 informationin 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 zoneof 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,


### 420 40 CFR Ch. I (7–1–15 Edition) § 125.136

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. Providespecies-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 operationof the design and construction technologies that you will use to minimize entrainment of those species expectedto 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 havechosen 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 watertidal 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 ComprehensiveDemonstration 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 seachests, you have minimized entrainment of entrainable life stages of fish and shellfish to 90 percent or greater of
the reduction that would have beenachieved through the applicable requirements in §125.134(b)(5);

(ii) You must develop and submit aplan 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 proposedStudy. 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 scientificallyvalid estimate of potential impingement mortality and (if applicable) entrainment impacts, and provide documentation showing that the data werecollected 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 allmethods 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


### 421 Environmental Protection Agency § 125.136

studies performed in the source water body. The sampling plan must includea description of the study area (including the area of influence of the cooling
water intake structure and at least 100meters beyond); taxonomic identification of the sampled or evaluated biological assemblages (including all lifestages of fish and shellfish); and sampling and data analysis methods; and

(iii) You must submit documentationof 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 biologicalresources including: A summary of historical and contemporary aquatic biological resources; determination and description of the target populations ofconcern (those species of fish and shellfish and all life stages that are mostsusceptible to impingement and entrainment); and a description of theabundance 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 besusceptible 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 inimpingement mortality and, (if applicable), entrainment of all life stages of
fish and shellfish that would need to be achieved by the technologies you haveselected to implement to meet requirements under Track II. To do this, you
must determine the reduction in impingement mortality and entrainmentthat 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 minimizeimpingement 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 impingementmortality 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. Theefficacy projection must include a sitespecific evaluation of technology(ies) suitability for reducing impingementmortality 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 conductedin 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 ofmonitoring 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 timeto 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 planmust describe the frequency of monitoring and the parameters to be monitored. The Director will use the verification monitoring to confirmthat 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.


### 422 40 CFR Ch. I (7–1–15 Edition) § 125.137

§ 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 thatchoose 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 orcompliance 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 cheststhat choose to comply with Track I requirements are not required to performbiological 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 foror 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 monitorfor 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 theSource Water Baseline Biological Characterization data required by 40 CFR122.21(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 Studyrequired 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 thattime, the Director may approve a request for less frequent sampling in the remaining years of the permit termand when the permit is reissued, if supporting data show that less frequentmonitoring 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 mustcollect samples to monitor impingement rates (simple enumeration) for each species over a 24-hour period and no less than once per month when thecooling 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 issubject to §125.134(c) and is a fixed facility without a sea chest, you mustcollect samples to monitor entrainment rates (simple enumeration) for each species over a 24-hour period andno less than biweekly during the primary period of reproduction, larval recruitment, and peak abundance identified during the Source Water Baseline Biological Characterization requiredby 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 onavailable hydrological data). The maximum head loss across the screen for


### 423 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 devicesduring 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 asdesigned. Alternatively, you must inspect via remote monitoring devices toensure that the impingement and entrainment technologies are functioning as designed.

§ 125.138 As an owner or operator of a new offshore oil and gas extractionfacility, 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 andreport information and data to the Director as follows:

(a) You must keep records of all thedata used to complete the permit application and show compliance with therequirements, any supplemental information developed under §125.136, andany compliance monitoring data submitted under §125.137, for a period of at least three (3) years from the date ofpermit 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 todetermine compliance with the applicable standards.

(2) For each subsequent permit renewal, the Director must review the application materials and monitoringdata to determine whether requirements, or additional requirements, for design and construction technologiesor 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 implementedfor a facility through an NPDES permit. As the Director, you must determine, based on the information submitted by the new offshore oil and gasextraction facility in its permit application, the appropriate requirements and conditions to include in the permit based on the track (Track I or TrackII), or alternative requirements in accordance with §125.135, the new offshore oil and gas extraction facilityhas chosen to comply with. The following requirements must be included in each permit:

(1) Cooling water intake structure requirements. At a minimum, the permitconditions must include the performance standards that implement the applicable requirements of §125.134(b)(2),


### 424 40 CFR Ch. I (7–1–15 Edition) Pt. 129

(3), (4) and (5); §125.134(c)(1) and (2); or §125.135.

(i) For a facility that chooses TrackI, you must review the Design and Construction Technology Plan required in §125.136(b)(3) to evaluate the suitabilityand feasibility of the technology proposed to minimize impingement mortality and (if applicable) entrainment of all life stages of fish and shellfish. Inthe 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 implementedand require additional or different design and construction technologies, ifneeded 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 choosesTrack II, you must review the information submitted with the ComprehensiveDemonstration Study information required in §125.136(c)(2), evaluate the suitability of the proposed design andconstruction technology and/or operational measures to determine whether they will reduce both impingement mortality and/or entrainment of all lifestages 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 asufficient period of time to demonstrate that the technologies andoperational measures meet the requirements in §125.134(c)(1). Under subsequent permits, the Director must review the performance of the additionaland /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 dataspecific 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 localwater 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).

A UTHORITY : Secs. 307, 308, 501, Federal
Water Pollution Control Act Amendments of


### 425 Environmental Protection Agency § 129.2

1972 (Pub. L. 92–500, 86 Stat. 816, (33 U.S.C.
1251 et seq. )).

S OURCE : 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 subpartapply 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 anyNPDES permit, modification or renewal thereof, in accordance with the provisions of this subpart.

(c) The provisions of 40 CFR parts 124and 125 shall apply to any NPDES permit proceedings for any point sourcedischarge 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 PollutantDischarge 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 anavigable 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 periodsof 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 afterproposal 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 premiseswhere such equipment will be used, including preparation work at such premises.

(m) Manufacturer means any establishment engaged in the mechanical or


### 426 40 CFR Ch. I (7–1–15 Edition) § 129.3

chemical transformation of materialsor 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 resultingfrom any manufacturing process, including that which comes into directcontact 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) asa 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 precipitationevent 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 responsibilityfor 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 performthe 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 μ g/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 thechemical 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 name1,2,3,4,10,10-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 gradechlorinated camphene having the approximate formula of C 10 H 10 Cl 8 andnormally 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 ofpromulgation of any toxic pollutant effluent standard or prohibition each owner or operator with a discharge subject to that standard or prohibition


### 427 Environmental Protection Agency § 129.5

must notify the Regional Administrator (or State Director, if appropriate) of such discharge. Such notification shall include such informationand 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 permitor for a modification of an existing permit for a discharge subject to a toxicpollutant effluent standard or prohibition the permitting authority shall proceed thereon in accordance with 40CFR part 124 or 125, whichever is applicable.

(c)(1) Every permit which containslimitations based upon a toxic pollutant effluent standard or prohibition under this part is subject to revisionfollowing the completion of any proceeding revising such toxic pollutanteffluent 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 forany section 307(a) toxic pollutant effluent standard or prohibition, eachowner 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 inNPDES permits, within 60 days following the close of each calendar year each owner or operator of a dischargesubject 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 identificationof 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 sectionor 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 theRegional Administrator (or State Director, if appropriate), but shall include at least five samples, collected atapproximately equal intervals throughout the working day.

(e)(1) Nothing in these regulationsshall 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 implementedin 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 PollutantDischarge 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 implementedin 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 pollutantto the navigable waters and to a publicly owned treatment system shall
limit the summation of the mass emissions from both discharges to the less


### 428 40 CFR Ch. I (7–1–15 Edition) § 129.6

restrictive standard, either the direct discharge standard or the pretreatmentstandard; 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 inthis 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 oroperator 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 RegionalAdministrator (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 establishedpursuant 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 toxicpollutant effluent limitations established pursuant to this section shall also contain conditions requiring thepermittee 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 forestablishing a more stringent effluent limitation.

(a) In exceptional cases: (1) Where theRegional 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 orcontribute 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 permitmodification 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 ofgoing forward with evidence with regard to such more stringent effluent limitation shall be upon the RegionalAdministrator (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 todemonstrate 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


### 429 Environmental Protection Agency § 129.100

time to time, whose availability will be
announced in the F EDERAL R EGISTER

.

(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 Administratorunder 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 connectionwith the permit issuance or modification and any other evidence available
to him. If he takes no action withinninety days of his receipt of the notification of the action of the permitissuing 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 compliedwith not later than one year after promulgation unless an earlier date is established by the Administrator for anindustrial subcategory in the promulgation of the standards or prohibitions.

(b) Toxic pollutant effluent standards or prohibitions set forth herein shall
become enforceable under sections307(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 isexclusively 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 aperson 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 μ g/l.

(b) Aldrin/dieldrin manufacturer —(1) Applicability. (i) These standards or prohibitions apply to:

(A) All discharges of process wastes;
and

(B) All discharges from the manufacturing areas, loading and unloading areas, storage areas and other areaswhich 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 areaswhich 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


### 430 40 CFR Ch. I (7–1–15 Edition) § 129.101

( 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 inthe production, preparation or processing of another synthetic organic
substance.

(2) DDT formulator means a person who produces, prepares or processes aformulated product comprising a mixture of DDT and inert materials or other diluents into a product intended for application in any use registeredunder 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 μ g/l.

(b) DDT manufacturer —(1) Applicability. (i) These standards or prohibitions apply to:

(A) All discharges of process wastes;
and

(B) All discharges from the manufacturing areas, loading and unloading areas, storage areas and other areaswhich 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 ofDDT; 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 inany 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 areaswhich 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 ofDDT; 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 inany discharge from any DDT formulator.

§ 129.102 Endrin.

(a) Specialized definitions. (1) Endrin Manufacturer means a manufacturer,


### 431 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 materialin the production, preparation or processing of another synthetic organic
substance.

(2) Endrin Formulator means a person who produces, prepares or processes aformulated product comprising a mixture of endrin and inert materials or other diluents into a product intended for application in any use registeredunder 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 μ g/l.

(b) Endrin manufacturer —(1) Applicability. (i) These standards or prohibitions apply to:

(A) All discharges of process wastes;
and

(B) All discharges from the manufacturing areas, loading and unloading areas, storage areas and other areaswhich 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 μ g/l calculated over any calendar month; and shall not exceed a monthly average daily loading of 0.0006 kg/kkg of endrin produced; and
shall not exceed 7.5 μ g/l in a sample(s) representing any working day.

(ii) New sources. Discharges from an
endrin manufacturer shall not containendrin concentrations exceeding an average per working day of 0.1 μ g/l calculated over any calendar month; and shall not exceed a monthly average daily loading of 0.00004 kg/kkg of endrin produced; and shall not exceed
0.5 μ g/l in a sample(s) representing any working day.

(iii) Mass emission standard during shutdown of production. In computing the allowable monthly average dailyloading figure required under the preceding paragraphs (b)(3) (i) and (ii) of this section, for any calendar monthfor which there is no endrin being manufactured at any plant or facilitywhich 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 mostrecent 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 areaswhich 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 thissection shall apply to the total combined weight or concentration of


### 432 40 CFR Ch. I (7–1–15 Edition) § 129.103

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, preparationor processing of another synthetic organic substance.

(2) Toxaphene formulator means a person who produces, prepares or processes a formulated product comprisinga mixture of toxaphene and inert materials or other diluents into a productintended 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

μ g/l.

(b) Toxaphene manufacturer —(1) Applicability. (i) These standards or prohibitions apply to:

(A) All discharges of process wastes;
and

(B) All discharges from the manufacturing areas, loading and unloading areas, storage areas and other areaswhich are subject to direct contamination by toxaphene as a result of the manufacturing process, including but not limited to: ( 1 ) Stormwater andother 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 μ g/l calculated over any calendar month; and shall not exceed a monthly average daily loading of 0.00003 kg/kkg of toxaphene produced, and shall not exceed 7.5 μ g/l in a sample(s) representing any working day.

(ii) New sources. Discharges from atoxaphene manufacturer shall not contain toxaphene concentrations exceeding an average per working day of 0.1

μ g/l calculated over any calendar month; and shall not exceed a monthly average daily loading of 0.000002 kg/kkg of toxaphene produced, and shall not
exceed 0.5 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 figurerequired 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 issubject 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 areaswhich 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


### 433 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 thissection 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 manufacturerwho 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 μ g/
l. (b) Benzidine manufacturer —(1) Applicability. (i) These standards apply to:

(A) All discharges into the navigable waters of process wastes, and

(B) All discharges into the navigable waters of wastes containing benzidine from the manufacturing areas, loading and unloading areas, storage areas, andother 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 μ g/l calculated over any calendar month, and shall not exceed a monthly averagedaily loading of 0.130 kg/kkg of benzidine produced, and shall not exceed 50

μ g/l in a sample(s) representing any working day.

(ii) New sources. Discharges from a
benzidine manufacturer shall not contain benzidine concentrations exceeding an average per working day of 10

μ g/l calculated over any calendar month, and shall not exceed a monthly average daily loading of 0.130 kg/kkg ofbenzidine produced, and shall not exceed 50 μ g/l in a sample(s) representing any working day.

(4) The standards set forth in this paragraph (b) shall apply to the total combined weight or concentration of benzidine, excluding any associated element or compound.

(c) Benzidine-based dye applicators —(1) Applicability. (i) These standards apply
to:

(A) All discharges into the navigable waters of process wastes, and

(B) All discharges into the navigable waters of wastes containing benzidine from the manufacturing areas, loading and unloading areas, storage areas, andother 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 ofbenzidine; 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 calculationof the benzidine concentration by dividing the total benzidine contained indyes used during a working day (as certified in writing by the manufacturer)by the total quantity of water discharged during the working day.


### 434 40 CFR Ch. I (7–1–15 Edition) § 129.105

[ Comment: The Regional Administrator (orState Director, if appropriate) shall rely entirely upon the method specified in 40 CFRpart 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 μ g/l calculated over any calendar month; and
shall not exceed 25 μ g/l in a sample(s) or calculation(s) representing any working day.

(ii) New sources. Discharges from benzidine-based dye applicators shall not
contain benzidine concentrations exceeding an average per working day of
10 μ g/l calculated over any calendar month; and shall not exceed 25 μ g/l in asample(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 inwhich PCB or PCB-containing compounds are part of the dielectric.

(3) Electrical transformer manufacturer means a manufacturer who produces or
assembles electrical transformers inwhich PCB or PCB-containing compounds are part of the dielectric.

(4) The ambient water criterion for PCBs in navigable waters is 0.001 μ g/l.

(b) PCB manufacturer —(1) Applicability. (i) These standards or prohibitions apply to:

(A) All discharges of process wastes;(B) All discharges from the manufacturing or incinerator areas, loading and unloading areas, storage areas, and other areas which are subject to direct contamination by PCBs as a result of the manufacturing process, including
but not limited to: ( 1 ) Stormwater and other runoff except as hereinafter provided in paragraph (b)(1)(ii) of this section; and

( 2 ) Water used for routine cleanup or cleanup of spills.

(ii) These standards do not apply to stormwater runoff or other discharges from areas subject to contamination solely by fallout from air emissions ofPCBs; or to stormwater runoff that exceeds that from the ten-year 24-hour
rainfall event.

(2) Analytical Method Acceptable— Environmental Protection Agencymethod 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 prohibitedin 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 ofPCBs; 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;


### 435 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 ofPCBs; 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 intowhich 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 StateDirector, 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.

A UTHORITY : 33 U.S.C. 1251 et seq.

S OURCE : 50 FR 1779, Jan. 11, 1985, unless
otherwise noted.

§ 130.0 Program summary and purpose. (a) This subpart establishes policies and program requirements for waterquality 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 aconsistent national approach for maintaining, improving and protecting water quality while allowing States toimplement 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


### 436 40 CFR Ch. I (7–1–15 Edition) § 130.1

water bodies and provide the legal
basis for control decisions under theAct. Water quality monitoring activities provide the chemical, physical and biological data needed to determine the present quality of a State’s watersand 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 waterquality problems. These plans also contain the results of the State’s analyses and management decisions which are necessary to control specific sources ofpollution. 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 managementpractices for nonpoint sources of pollution and other means. After controlmeasures 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 havecompleted 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 attainedin 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 abatementand 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 willfocus 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 CWAwater quality planning and management activities undertaken on or after February 11, 1985 including all updatesand 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 recognizedby 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, enhancethe quality of water and serve the purposes of the Act.

(e) Load or loading. An amount ofmatter or thermal energy that is introduced into a receiving water; to introduce matter or thermal energy into a receiving water. Loading may be eitherman-caused (pollutant loading) or natural (natural background loading).

(f) Loading capacity. The greatestamount of loading that a water can receive without violating water quality
standards.


### 437 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 andnonpoint source loads should be distinguished.

(h) Wasteload allocation (WLA). The portion of a receiving water’s loading capacity that is allocated to one of itsexisting or future point sources of pollution. WLAs constitute a type ofwater 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 theLAs 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 otherappropriate 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 waterquality 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 andupdated 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 toimplement 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 waterbody, or portion thereof, by designating the use or uses to be made ofthe 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, industrialand 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 establishmentof 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 reviseWQS in accordance with applicable regulations and, as appropriate, update their Water Quality Management (WQM) plans to reflect such revisions.


### 438 40 CFR Ch. I (7–1–15 Edition) § 130.4

Specific WQS requirements are found in 40 CFR part 131.

§ 130.4 Water quality monitoring.

(a) In accordance with section106(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’squality 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 andreviewing 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 implementthe 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 asany 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 totalmaximum daily loads (TMDLs) and individual water quality based effluentlimitations for pollutants in accordance with section 303(d) of the Act and §130.7(a) of this regulation.

(4) The process for updating andmaintaining Water Quality Management (WQM) plans, including schedules
for revision.

(5) The process for assuring adequateauthority 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 adequatecontrols 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 thisregulation. The Regional Administrator shall not approve any permit program under Title IV of the Act forany State which does not have an approved continuing planning process.


### 439 Environmental Protection Agency § 130.6

§ 130.6 Water quality management plans.

(a) Water quality management (WQM) plans. WQM plans consist of initialplans produced in accordance with sections 208 and 303(e) of the Act and certified and approved updates to thoseplans. 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 areasand on the development of water quality controls leading to implementationmeasures. Water quality planning directed at the removal of conditionsplaced 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. WQMplans 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 areneeded 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 anticipatedmunicipal 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 suchtreatment 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 theregulatory and non-regulatory programs, activities and Best Management Practices (BMPs) which the agency has
selected as the means to controlnonpoint 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 aprocess to control the disposal of pollutants on land or in subsurface excavations to protect ground and surfacewater 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 ofprocedures to control construction related sources of pollution in accordance with section 208(b)(2)(H) of the
Act.


### 440 40 CFR Ch. I (7–1–15 Edition) § 130.6

(F) Saltwater intrusion. Identificationof 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 controlto achieve water quality goals and fiscal analysis of the necessary capitaland 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 otherdepartments, 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 outthe 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 measuresnecessary 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 developground-water WQM plan elements beyond the requirements of section 208(b)(2)(K) of the Act, but may developa ground-water plan element if they determine it is necessary to address a ground-water quality problem. If aState 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 ofcontamination of ground-water including Federal programs delegated to theState 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 includingprovision of program financing, training and technical assistance, publicparticipation, and emergency management.

(d) Indian Tribes. An Indian Tribe is eligible for the purposes of this rule
and the Clean Water Act assistanceprograms under 40 CFR part 35, subparts A and H if:

(1) The Indian Tribe has a governingbody carrying out substantial governmental duties and powers;

(2) The functions to be exercised bythe 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 ofan Indian Tribe if such property interest is subject to a trust restriction onalienation, 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 changingwater quality conditions, results of implementation actions, new requirements or to remove conditions in prior conditional or partial plan approvals. Regional Administrators may require


### 441 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 ensurethat 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 certifyby letter to the Regional Administrator for EPA approval that WQM plan updates are consistent with allother 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 theseloads; 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 andNPDES permits; and involving the public, affected dischargers, designatedareawide 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) requiredby 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 stringentenough to implement any water quality standards (WQS) applicable to such
waters.

(2) Each State shall also identify onthe same list developed under paragraph (b)(1) of this section those waterquality-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 protectionand propagation of a balanced indigenous population of shellfish, fish and
wildlife.

(3) For the purposes of listing watersunder §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 rankingfor all listed water quality-limited segments still requiring TMDLs, takinginto account the severity of the pollution and the uses to be made of suchwaters and shall identify the pollutants causing or expected to cause violations of the applicable water quality standards. The priority ranking shall specifically include the identificationof waters targeted for TMDL development in the next two years.

(5) Each State shall assemble andevaluate 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


### 442 40 CFR Ch. I (7–1–15 Edition) § 130.7

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, theUnited 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 undersection 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 besubmitted 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 andinformation used by the State as required by §130.7(b)(5); and

(iii) A rationale for any decision tonot 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 RegionalAdministrator, 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 thissection, and in accordance with the priority ranking. For pollutants other than heat, TMDLs shall be establishedat 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 knowledgeconcerning 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 apollutant-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 toparagraph (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 thewater quality limited segments still requiring TMDLs identified in paragraph(b)(2) of this section, the total maximum daily thermal load which cannotbe 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


### 443 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 protectionand 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, orcommitment 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 orcommitment 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 besubmitted 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 waterquality 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 shalleither 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 ofthis 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 andmaking 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 resourcesallow, 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 thosepollutants which the Regional Administrator identifies under section304(a)(2) as suitable for such calculation and for thermal discharges, at a level that would assure protection and propagation of a balanced indigenouspopulation of fish, shellfish and wildlife. However, there is no requirement
for such loads to be submitted to EPA for approval, and establishing TMDLsfor 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 waterquality management (WQM) plan elements to help direct all subsequent


### 444 40 CFR Ch. I (7–1–15 Edition) § 130.9

control activities. Water quality problems identified in the 305(b) reportshould be analyzed through water quality management planning leading tothe development of alternative controls and procedures for problems identified in the latest 305(b) report. Statesmay 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 towhich CWA control programs have improved water quality or will improvewater 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 nonpointsources, 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 descriptionof 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) reportsatisfies 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 theannual section 205(j) report requirement by certifying that the most recently submitted section 305(b) report is current or by supplying an update ofthe 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 section208(a) (2) and (3) of the Act or may selfdesignate in accordance with section 208(a)(4) of the Act. Such designationsshall subject to EPA approval in accordance with section 208(a)(7) of the
Act.

(b) De-designation. The Governor maymodify 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 commitmentto 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 section208(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


### 445 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. Wherethere 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 orupdate 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 waterquality standards (WQS) (303(c)). (Approved by OMB under 2040–0049)

(b) The Act also requires that eachState 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 approvedWQM plan updates (208, 303(e)). (Paragraph (b)(1), (4) approved by OMB under the control number 2010–0004).

(c) The form and content of requiredState submittals to EPA may be tailored to reflect the organization andneeds 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 agreedto 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 theState 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 publichealth, public water supplies, agricultural and industrial uses, and the protection and propagation of a balancedpopulation 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 sections301(b), 306, and 307(b) are met, due entirely or substantially to dischargesfrom point sources of any toxic pollutants listed pursuant to section 307(a);

(3) For each segment of navigablewaters 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 standardmeans 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 intoxic amounts) interpreted on a chemical-by-chemical basis by applying a proposed state cirterion, an explicit state policy or regulation, or an EPAnational water quality criterion, supplemented with other relevant information.


### 446 40 CFR Ch. I (7–1–15 Edition) § 130.10

(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 achieveddue 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 pollutantfrom one or more point sources, regardless of any nonpoint source contribution of the same pollutant, is sufficientto cause or is expected to cause an excursion above the applicable waterquality standard for the toxic pollutant.

(6) Each state shall assemble andevaluate 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 limitedto, 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 inits 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 WaterQuality 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 ofwater 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 oractual exceedances of state water quality standards, including narrative ‘‘free from’’ water quality criteria or EPAwater quality criteria where state criteria are not available.

(ix) Waters with primary industrialmajor 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 mustbe 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 indicateexceedances of state water quality criteria (or EPA water quality criteria where state water quality criteria arenot 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 MonitoringReports (DMRs), or other available information.

(xi) Waters with facilities not included in the previous two categories such as major POTWs, and industrialminor dischargers where dilution analyses indicate exceedances of numericor narrative state water quality criteria (or EPA water quality criteria where state water quality criteria arenot available) for toxic pollutants, ammonia, or chlorine. These dilution analyses must be based upon estimatesof discharge levels derived from effluent guideline development documents, NPDES permits or permit application data, Discharge Monitoring Reports(DMRs), or other available information.


### 447 Environmental Protection Agency § 130.10

(xii) Waters classified for uses thatwill 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 privatesector, public interest groups, or universities. These organizations and groups should be actively solicited forresearch 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 CleanWater: The States’ Nonpoint Source Assessments 1985 (Association of State and
Interstate Water Pollution Control Administrators (ASIWPCA)) or waters identified as impaired or threatened ina 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 notto 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 determinethe 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 causeincludes, 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 shallapprove 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) ofthis 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, incooperation with such state, shall implement the requirements of CWA section 304(l) (1) and (2) in such state.

(10) If the Regional Administratordisapproves 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), thennot later than June 4, 1989, the Regional Administrator shall distribute the notice of approval or disapprovalgiven under this paragraph to the appropriate state Director. The RegionalAdministrator shall also publish a notice of availability, in a daily or weekly newspaper with state-wide circulation or in the F EDERAL R EGISTER , for the notice of approval or disapproval. The Regional Administrator shall also


### 448 40 CFR Ch. I (7–1–15 Edition) § 130.11

provide written notice to each discharger identified under section304(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 provideadequate 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 ofwaters, 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 RegionalOffice 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) and205(g) to carry out water quality planning and management activities. Interstate agencies may apply for grants under section 106 to carry out waterquality planning and management activities. Local or regional planning organizations may request 106 and 205(j) funds from a State for planning andmanagement 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 ofwater 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 controlmeasures (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 alsouse part of the 205(g) funds to administer approved permit programs under sections 402 and 404, to administer astatewide 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 managementshall describe geographic and functional priorities for use of grant funds
in a manner which will facilitate EPA review of the grant application andsubsequent evaluation of work accomplished with the grant funds. A State’s 305(b) Report, WQM plan and otherwater 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 periodof the grant; the cost of specific activities; the outputs, for example, permitsissued, intensive surveys, wasteload allocations, to be produced by each activity; and where applicable, schedules indicating when activities are to be completed.


### 449 Environmental Protection Agency Pt. 131

(d) State work programs under sections 106, 205(j) and 205(g) shall be coordinated in a manner which indicatesthe 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 fundedby 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 Regionalgovernments, and designated management agencies (DMAs) are joint participants in the water pollution controlprogram. 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 reflectthe capabilities of the respective agencies and shall efficiently utilize available funds and funding eligibilities tomeet Federal requirements commensurate with State and local priorities. State work programs under section 205(j) shall be developed jointly withlocal, 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 NPDESpermit may be issued which is in conflict with an approved Water Quality Management (WQM) plan. Where a State has assumed responsibility forthe administration of the permit program under section 402, it shall assure consistency with the WQM plan.

(b) Relationship to the municipalconstruction 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, orthe 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 jurisdictionover 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 localrequirements, administrative authority, and process and sanctions respecting the control and abatement of waterpollution 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 atimely 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.


### 450 40 CFR Ch. I (7–1–15 Edition) § 131.1

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.

A UTHORITY : 33 U.S.C. 1251 et seq.

S OURCE : 48 FR 51405, Nov. 8, 1983, unless
otherwise noted.



### Subpart A—General Provisions

§ 131.1 Scope.

This part describes the requirementsand procedures for developing, reviewing, revising, and approving waterquality standards by the States as authorized by section 303(c) of the CleanWater 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 CleanWater 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 andpropagation 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 asthe 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 aquality 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 constituentconcentration has on particular aquatic species and/or human health. This information is issued periodically tothe States as guidance for use in developing criteria.


### 451 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 theuse 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 knownthat water quality does not meet applicable water quality standards, and/or is not expected to meet applicable waterquality 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, theDistrict 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 ofthe 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 communityrecognized 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 stringentthan 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) mayissue certifications pursuant to the requirements of Clean Water Act section 401. Revisions adopted by States shall be applicable for use in issuing Statecertifications 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 eligibleto 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 itslegal 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 basedupon appropriate technical and scientific data and analyses, and


### 452 40 CFR Ch. I (7–1–15 Edition) § 131.6

(5) Whether the State submission meets the requirements included in §131.6 of this part and, for Great LakesStates or Great Lakes Tribes (as defined in 40 CFR 132.2) to conform tosection 118 of the Act, the requirements of 40 CFR part 132.

(b) If EPA determines that theState’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 theState’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 certificationspursuant 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 forwater 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 willaid 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 disputewhich satisfies the criteria of paragraph (b) of this section. Written requests for EPA involvement should besubmitted 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;


### 453 Environmental Protection Agency § 131.7

(4) Factual data to support the alleged unreasonable consequences; and

(5) A statement of the relief soughtfrom the alleged unreasonable consequences.

(d) Where, in the Regional Administrator’s judgment, EPA involvement is appropriate based on the factors ofparagraph (b) of this section, the Regional Administrator shall, within 30 days, notify the parties in writing thathe/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 individualor 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 Tribeand State have entered into an agreement that resolves the dispute or establishes a mechanism for resolving adispute, 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 shallbe determined by the mediator in consultation with the parties.

(v) If formal public hearings are held
in connection with the actions takenunder this paragraph, Agency requirements at 40 CFR 25.5 shall be followed.

(2) Arbitration. Where the parties to the dispute agree to participate in thedispute resolution process, the Regional Administrator may appoint anarbitrator or arbitration panel to arbitrate the dispute. Arbitrators andpanel members shall be EPA employees, employees from other Federalagencies, 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 qualitystandards 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 arbitrationpanel 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 relevantto 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 reasonablegiven natural background water quality.

(ii) Following consideration of relevant factors as defined in paragraph (f)(2)(i) of this section, the arbitrator


### 454 40 CFR Ch. I (7–1–15 Edition) § 131.8

or arbitration panel shall have the authority and responsibility to provideall parties and the Regional Administrator with a written recommendationfor 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 requiredby the Regional Administrator, recommendations of such arbitration panels may be unanimous decisions. Wherebinding or non-binding arbitration panels cannot reach a unanimous recommendation after a reasonable period of time, the Regional Administratormay 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 notbe predisposed for or against the position of any disputing party based on any Federal Trust responsibilities which their employers may have withrespect to the Tribe. In addition, arbitrators or arbitration panel members who are Federal employees shall actindependently 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 statutorybasis for altering the arbitrator’s recommendation.

(vi) The procedure and schedule for arbitration of individual disputes shallbe determined by the arbitrator or arbitration panel in consultation with parties.

(vii) If formal public hearings are
held in connection with the actionstaken 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 individualswith appropriate qualifications. Review panels shall include appropriatemembers to be selected by the Regional Administrator in consultationwith the participating parties. Recommendations of such review officials or panels shall, to the extent possible given the lack of participation by oneor 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 RegionalAdministrator, 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 Tribesto administer a water quality standards program.

(a) The Regional Administrator, as
determined based on OMB Circular A– 105, may accept and approve a tribalapplication for purposes of administering a water quality standards program if the Tribe meets the following
criteria:


### 455 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 governingbody 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 governingbody 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 theexercise 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 theIndian Sanitation Facility Construction Activity Act (42 U.S.C. 2004a);

(ii) A list of existing environmentalor 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 Tribewhich 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 andtechnical expertise. The plan must address how the Tribe will obtain the


### 456 40 CFR Ch. I (7–1–15 Edition) § 131.10

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 RegionalAdministrator 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 intoconsideration the water quality standards of downstream waters and shall ensure that its water quality standardsprovide for the attainment and maintenance of the water quality standards of
downstream waters.

(c) States may adopt sub-categoriesof 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 bythe 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 waterbody 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.


### 457 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 levelsprevent the attainment of the use, unless these conditions may be compensated for by the discharge of sufficient volume of effluent dischargeswithout violating State water conservation requirements to enable uses to be met; or

(3) Human caused conditions orsources 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 theattainment of the use, and it is not feasible to restore the water body to its original condition or to operate suchmodification 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 section101(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) Statesmust 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 pollutantsmay 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 oftoxic pollutants on water quality limited segments based on such narrativecriteria. 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:


### 458 40 CFR Ch. I (7–1–15 Edition) § 131.12

(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 toprotect the existing uses shall be maintained and protected.

(2) Where the quality of the waters exceed levels necessary to supportpropagation of fish, shellfish, and wildlife and recreation in and on the water, that quality shall be maintained and protected unless the State finds, afterfull satisfaction of the intergovernmental coordination and public participation provisions of the State’s continuing planning process, that allowinglower water quality is necessary to accommodate important economic or social development in the area in which the waters are located. In allowingsuch degradation or lower water quality, the State shall assure water quality adequate to protect existing uses fully. Further, the State shall assurethat 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 waterquality 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 applicablewater quality standards and, as appropriate, modifying and adopting standards. Any water body segment withwater quality standards that do not include the uses specified in section101(a)(2) of the Act shall be re-examined every three years to determine ifany 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 Stateshall hold a public hearing for the purpose of reviewing water quality standards, in accordance with provisions ofState law, EPA’s water quality management regulation (40 CFR 130.3(b)(6)) and public participation regulation (40CFR 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, anysupporting analysis for the use attainability analysis, the methodologiesused for site-specific criteria development, any general policies applicable


### 459 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 toGreat Lakes States or Tribes (as defined in 40 CFR 132.2), 40 CFR part 132.

(c) How do I determine which waterquality standards are applicable for purposes of the Act? You may determinewhich 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 waterquality 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 thatRegion, 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]


### 460 40 CFR Ch. I (7–1–15 Edition) § 131.22

§ 131.22 EPA promulgation of water quality standards.

(a) If the State does not adopt thechanges 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 upondetermining such a standard is necessary to meet the requirements of the
Act.

(c) In promulgating water quality standards, the Administrator is subjectto 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 theState, 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 Statewith the approval of EPA) shall implement a monitoring program to assessattainment 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 RegionalAdministrator, 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-dayperiod, applies to the waterbodies identified in paragraph (a)(2) of this sectionduring 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


### 461 Environmental Protection Agency § 131.33

Springs Creek, Big Timber Creek, BrayCreek, Bull Creek, Cabin Creek, Canyon Creek, Carol Creek, ChamberlainCreek, 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), MahoganyCreek, 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, SquawCreek, 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,


### 462 40 CFR Ch. I (7–1–15 Edition) § 131.33

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, FlumeCreek, 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, FourmileCreek, Gate Creek, Gedney Creek, Goddard Creek, Horse Creek, Indian Hill Creek, Little Boulder Creek, LittleSchwar Creek, Matteson Creek, Meadow Creek, Monument Creek, Moose Creek, Moss Creek, Newsome Creek, North Fork Moose Creek, Rhoda Creek, Saddle Creek, Schwar Creek, ShakeCreek, 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 ForkPayette 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, CliffCreek, 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


### 463 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, SteamboatCreek, Steep Creek, Stud Creek, Warren Creek, Webfoot Creek, West ForkChamberlain 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, IndianCreek, 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, OpalCreek, 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


### 464 40 CFR Ch. I (7–1–15 Edition) § 131.33

Creek, South Fork Cub Creek, Spout Creek, Steamboat Creek, Steel Creek, Steppe Creek, Swanholm Creek, TimpaCreek, 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, DonkeyCreek, Doublespring Creek, Dry Canyon, Dry Gulch, East Fork Burnt Creek, East Fork Morgan Creek, EastFork 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, DyreeCreek, 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 GrouseCreek, 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 SaltCreek, 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,


### 465 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 MountainCreek, 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, DeadwoodRiver, 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, RockCreek, 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, HaysCreek, 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 ForkSix-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, SeceshRiver, 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


### 466 40 CFR Ch. I (7–1–15 Edition) § 131.33

Threemile Creek, Split Creek, Steep Creek, Sugar Creek, Summit Creek, Tamarack Creek, Teepee Creek, Threemile Creek, Trail Creek, TrapperCreek, 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, FuzzyCreek, 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’ALENEBASIN: 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 FORKSALMON 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, LincolnCreek, 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, RangeCreek, 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, ShellCreek, Shrapnel Creek, Siah Creek, Silver Creek, Slide Creek, Snowshoe


### 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 DamCreek, 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, CraterCreek, 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, FivemileCreek, Fourth of July Creek, Frenchman Creek, Garden Creek, GermaniaCreek, 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, LittleBoulder 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, RoadCreek, Rough Creek, Sage Creek, Sagebrush Creek, Salmon River (Redfish Lake Creek), Sawmill Creek, Second Creek, Sevenmile Creek, Sheep Creek, Short Creek, Sixmile Creek, Slate


### 468 40 CFR Ch. I (7–1–15 Edition) § 131.33

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), SouthFork 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 thereoflisted 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 temperaturecriteria 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 befully supported at the higher temperature criteria.

(iii) For any determination made under paragraphs (a)(3)(i) or (a)(3)(ii) ofthis section, the Regional Administrator shall, prior to making such a determination, provide for public noticeof and comment on a proposed determination. For any such proposed determination, the Regional Administrator shall prepare and make available tothe public a technical support document addressing each waterbody or portion thereof that would be deleted or modified and the justification foreach 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 tothe 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 outsidepublic 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]


### 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


### 470 40 CFR Ch. I (7–1–15 Edition) § 131.34

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


### 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


### 472 40 CFR Ch. I (7–1–15 Edition) § 131.34

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


### 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


### 474 40 CFR Ch. I (7–1–15 Edition) § 131.34

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


### 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


### 476 40 CFR Ch. I (7–1–15 Edition) § 131.34

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


### 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


### 478 40 CFR Ch. I (7–1–15 Edition) § 131.34

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


### 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


### 480 40 CFR Ch. I (7–1–15 Edition) § 131.34

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


### 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


### 482 40 CFR Ch. I (7–1–15 Edition) § 131.34

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


### 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


### 484 40 CFR Ch. I (7–1–15 Edition) § 131.34

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


### 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


### 486 40 CFR Ch. I (7–1–15 Edition) § 131.34

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


### 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**


### 488 40 CFR Ch. I (7–1–15 Edition) § 131.34

Lake name County Designated use

**Basin: Cimarron**
**Subbasin: Upper Cimarron (HUC 11040002)**

Moss Lake East .......................................... MORTON ................................................... Primary Contac t Recreation Moss Lake West ......................................... MORTON ................................................... Primary Contact Recreation

**Subbasin: North Fork Cimarron (HUC 11040006)**

Russell Lake ............................................... STEVENS .................................................. Primary Con tact Recreation

**Subbasin: Upper Cimarron-Bluff (HUC 11040008)**

Clark State Fishing Lake ............................ CLARK ....................................................... Primary Contact Recreation Saint Jacob’s Well ...................................... CLARK ....................................................... Primary Con tact 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 Conta ct Recreation Wakefield Lake ........................................... CLAY .......................................................... Primary Contact Recreation

**Subbasin: Middle Kansas (HUC 10270102)**

Alma City Reservoir .................................... WABAUNSEE ............................................ Primary Contact Rec reation 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 Recrea tion Little Lake ................................................... BROWN ..................................................... Primary Contact Recreation

**Subbasin: Lower Kansas (HUC 10270104)**

Douglas County State Lake ....................... DOUGLAS ................................................. Primary Contact Recreat ion Lenexa Lake ............................................... JOHNSON ................................................. Primary Conta ct Recreation Mahaffie Farmstead Pond .......................... JOHNSON ................................................. Primary Contact Recrea tion Pierson Park Lake ...................................... WYANDOTTE ............................................ Primary Contact Rec reation Waterworks Lakes ...................................... JOHNSON ................................................. Primary Contact R ecreation

**Subbasin: Lower Big Blue (HUC 10270205)**

Lake Idlewild ............................................... MARSHALL ................................................ Primary Con tact 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 Recrea tion

**Subbasin: Cow (HUC 11030011)**

Barton Lake ................................................ BARTON .................................................... Primary Co ntact Recreation Sterling City Lake ....................................... RICE .......................................................... Primary Contact Recreation

**Subbasin: Little Arkansas (HUC 11030012)**

Dillon Park Lakes #1 .................................. RENO ......................................................... Primary Cont act Recreation Dillon Park Lake #2 .................................... RENO ......................................................... Primary Con tact Recreation Newton City Park Lake ............................... HARVEY .................................................... Primary Contact R ecreation

**Subbasin: Middle Arkansas-Slate (HUC 11030013)**

Belaire Lake ................................................ SEDGWICK ............................................... Primary Cont act Recreation Buffalo Park Lake ....................................... SEDGWICK ............................................... Primary Contact Recreation Emery Park ................................................. SEDGWICK ............................................... Primary Conta ct Recreation


### 489 Environmental Protection Agency § 131.34

Lake name County Designated use

Harrison Park Lake ..................................... SEDGWICK ............................................... Primary Contact R ecreation Riggs Park Lake ......................................... SEDGWICK ............................................... Primary Contact Recreation

**Subbasin: South Fork Ninnescah (HUC 11030015)**

Lemon Park Lake ....................................... PRATT ....................................................... Primary Conta ct Recreation

**Subbasin: Medicine Lodge (HUC 11060003)**

Barber County State Fishing Lake ............. BARBER .................................................... Primary Contact Recreati on

**Subbasin: Lower Salt Fork Arkansas (HUC 11060004)**

Hargis Lake ................................................ BARBER .................................................... Primary Co ntact 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 Re creation Crystal Lake ................................................ ANDERSON ............................................... Primary Cont act Recreation Lyon County State Fishing Lake ................ LYON ......................................................... Primary Contact Recr eation Osage City Reservoir ................................. OSAGE ...................................................... Primary Contact Recreation Waterworks Impoundment .......................... ANDERSON ............................................... Primary Contact Recreati on

**Subbasin: Lower Marais Des Cygnes (HUC 10290102)**

Edgerton City Lake ..................................... JOHNSON ................................................. Primary Contact Recreation Edgerton South Lake .................................. JOHNSON ................................................. Primary Contact Re creation Lake LaCygne ............................................ LINN ........................................................... Primary Contact Recreation Louisburg State Fishing Lake ..................... MIAMI ......................................................... Primary Contact Recreation Miami County State Fishing Lake .............. MIAMI ......................................................... Primary Contact Recr eation Paola City Lake .......................................... MIAMI ......................................................... Primary Contact Recreation Pleasanton Lake #1 .................................... LINN ........................................................... Primary Co ntact Recreation Pleasanton Lake #2 .................................... LINN ........................................................... Primary Co ntact Recreation Spring Hill City Lake ................................... JOHNSON ................................................. Primary Contact Recreation

**Subbasin: Marmaton (HUC 10290104)**

Gunn Park Lake, East ................................ BOURBON ................................................. Primary Contact Rec reation Gunn Park Lake, West ............................... BOURBON ................................................. Primary Contact Recr eation Rock Creek Lake ........................................ BOURBON ................................................. Primary Contact Recreation

**Basin: Missouri**
**Subbasin: South Fork Big Nemaha (HUC 10240007)**

Pony Creek Lake ........................................ NEMAHA .................................................... Primary Contac t Recreation Sabetha City Lake ...................................... NEMAHA .................................................... Primary Contac t Recreation

**Subbasin: Independence-Sugar (HUC 10240011)**

Atchison City Lakes .................................... ATCHISON ................................................ Primary Contact Recreation Big Eleven Lake ......................................... WYANDOTTE ............................................ Primary Contact Re creation Doniphan Fair Association Lake ................ DONIPHAN ................................................ Primary Contact Recreatio n Jerrys Lake ................................................. LEAVENWORTH ....................................... Primary Contact R ecreation Lansing City Lake ....................................... LEAVENWORTH ....................................... Primary Contact Recre ation South Park Lake ......................................... LEAVENWORTH ....................................... Primary Contact Recre ation

**Subbasin: Lower Missouri-Crooked (HUC 10300101)**

Prairie View Park ........................................ JOHNSON ................................................. Primary Contac t Recreation South Park Lake ......................................... JOHNSON ................................................. Primary Contact Recreation Stanley Rural Water District Lake #2 ......... JOHNSON ................................................. Primary Contact Recreation Stohl Park Lake .......................................... JOHNSON ................................................. Primary Contac t Recreation

**Basin: Neosho**
**Subbasin: Lower Cottonwood (HUC 11070203)**

Peter Pan Pond .......................................... LYON ......................................................... Primary Co ntact Recreation

**Subbasin: Upper Neosho (HUC 11070204)**

Chanute City (Santa Fe) Lake ................... NEOSHO ................................................... Primary Contact Recreat ion Leonard’s Lake ........................................... WOODSON ................................................ Primary Contact Recreation


### 490 40 CFR Ch. I (7–1–15 Edition) § 131.34

Lake name County Designated use

**Subbasin: Middle Neosho (HUC 11070205)**

Altamont City Lake #1 ................................ LABETTE ................................................... Primary Contact Recreation Bartlett City Lake ........................................ LABETTE ................................................... Primary Con tact Recreation Harmon Wildlife Area Lakes ....................... LABETTE ................................................... Primary Contact Recr eation Mined Land Wildlife Area Lakes ................ CHEROKEE ............................................... Primary Contact Recreation Timber Lake ................................................ NEOSHO ................................................... Primary Con tact Recreation

**Subbasin: Spring (HUC 11070207)**

Empire Lake ................................................ CHEROKEE ............................................... Primary Conta ct Recreation Frontenac City Park .................................... CRAWFORD .............................................. Primary Contact Re creation Mined Land Wildlife Area Lakes ................ CRAWFORD .............................................. Primary Contact Recreation Pittsburg College Lake ............................... CRAWFORD .............................................. Primary Contact Recr eation Playters Lake .............................................. CRAWFORD .............................................. Primary Contac t Recreation

**Basin: Smoky Hill/Saline Subbasin: Lower Smoky Hill (HUC 10260008)** 

Herington City Park Lake ........................... DICKINSON ............................................... Primary Contact Recr eation Herington Reservoir .................................... DICKINSON ............................................... Primary Contact Recreation

**Basin: Solomon**
**Subbasin: Lower North Fork Solomon (HUC 10260012)**

Francis Wachs Wildlife Area Lakes ............ SMITH ........................................................ Primary Contact Recre ation

**Subbasin: Solomon River (HUC 10260015)**

Jewell County State Fishing Lake .............. JEWELL ..................................................... Primary Contact Recrea tion Ottawa County State Fishing Lake ............ OTTAWA .................................................... Primary Contact Recreatio n

**Basin: Upper Arkansas**
**Subbasin: Middle Arkansas-Lake McKinney (HUC 11030001)**

Lake McKinney ........................................... KEARNY .................................................... Primary Conta ct Recreation

**Subbasin: Arkansas-Dodge City (HUC 11030003)**

Lake Charles .............................................. FORD ......................................................... Primary Contact Recreation

**Subbasin: Pawnee (HUC 11030005)**

Concannon State Fishing Lake .................. FINNEY ...................................................... Primary Contact Recre ation Finney County Game Refuge Lakes .......... FINNEY ...................................................... Primary Contact Recreation

**Subbasin: Buckner (HUC 11030006)**

Ford County Lake ....................................... FORD ......................................................... Primary Con tact Recreation Hain State Fishing Lake ............................. FORD ......................................................... Primary Contac t Recreation

**Subbasin: Upper Walnut Creek (HUC 11030007)**

Goodman State Fishing Lake ..................... NESS ......................................................... Primary Contact Rec reation

**Subbasin: Lower Walnut Creek (HUC 11030008)**

Memorial Park Lake .................................... BARTON .................................................... Primary Contact Recreation Stone Lake ................................................. BARTON .................................................... Primary Co ntact Recreation

**Basin: Verdigris**
**Subbasin: Upper Verdigris (HUC 11070101)**

Quarry Lake ................................................ WILSON ..................................................... Primary C ontact Recreation Thayer New City Lake ................................ NEOSHO ................................................... Primary Contact Re creation

**Subbasin: Middle Verdigris (HUC 11070103)**

La Claire Lake ............................................ MONTGOMERY ........................................ Primary Contact Rec reation Pfister Park Lakes ...................................... MONTGOMERY ........................................ Primary Contact Recre ation

**Subbasin: Caney (HUC 11070106)**

Caney City Lake ......................................... CHAUTAUQUA .......................................... Primary Contact Rec reation


### 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 Recrea tion Winfield Park Lagoon ................................. COWLEY ................................................... Primary Contact R ecreation

**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 onlyto the permittee requesting the variance and only to the pollutant or pollutants specified in the variance; theunderlying 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 ofthe 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 listedunder 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 thissection, a water quality standards variance may be granted if the applicant demonstrates to EPA that attainingthe 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 levelsprevent the attainment of the use, unless these conditions may be compensated for by the discharge of sufficient volume of effluent dischargeswithout violating State water conservation requirements to enable uses to be met; or

(iii) Human caused conditions orsources 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 suchmodification 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 shallsubmit 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 forone 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 andprovide 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 forthe 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


### 492 40 CFR Ch. I (7–1–15 Edition) § 131.35

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 doesnot 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 purposeof 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 Tribeshave 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 usedby 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 Documentfor 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 shallfirst 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 Stateof 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 ColvilleConfederated 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.


### 493 Environmental Protection Agency § 131.35

(2) Background conditions means thebiological, chemical, and physical conditions of a water body, upstream from the point or non-point source dischargeunder 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 enforcementaction is being taken for possible violations to the standards, backgroundsampling will be undertaken immediately upstream from each discharge.

(3) Ceremonial and Religious water use means activities involving traditional Native American spiritual practiceswhich involve, among other things, primary (direct) contact with water.

(4) Chronic toxicity means the lowest concentration of a constituent causing observable effects ( i.e. , consideringlethality, 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 storageby 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, includingbut 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 includingrights-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 notlimited 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 anddrying 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 ofwater expressed as nephelometric turbidity units (NTU) and measured with
a calibrated turbidimeter.

(20) Wildlife habitat means the watersand 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. Thisantidegradation 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


### 494 40 CFR Ch. I (7–1–15 Edition) § 131.35

protect the existing uses shall be maintained and protected.

(ii) Where the quality of the waters exceeds levels necessary to supportpropagation of fish, shellfish, and wildlife and recreation in and on the water, that quality shall be maintained andprotected unless the Regional Administrator finds, after full satisfaction of the inter-governmental coordination and public participation provisions ofthe Tribes’ continuing planning process, that allowing lower water qualityis necessary to accommodate important economic or social development in
the area in which the waters are located. In allowing such degradation orlower water quality, the Regional Administrator shall assure water quality adequate to protect existing uses fully. Further, the Regional Administrator
shall assure that there shall beachieved the highest statutory and regulatory requirements for all new andexisting point sources and all cost-effective and reasonable best management practices for nonpoint source
control.

(iii) Where high quality waters areidentified as constituting an outstanding national or reservation resource, such as waters within areas designated as unique water qualitymanagement areas and waters otherwise of exceptional recreational or ecological significance, and are designated as special resource waters, that waterquality 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, orproduce 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 withwater quality standards shall to the extent practicable, be in accordance withthe ‘‘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 PollutionControl 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 dayperiod 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 thecollected samples approximately equally spaced over a thirty day period.

(B) Dissolved oxygen—The dissolved oxygen shall exceed 9.5 mg/l.


### 495 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 hydrostaticpressures 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 existingtemperature in this water classification outside of any dilution zone.

( 3 ) Provided that temperature increase resulting from nonpoint source activities shall not exceed 2.8 degreesC, 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 increasein 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 whichmay 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 anenterococci 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 hydrostaticpressures 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 existingtemperature 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 degreesC, 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 increasein 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 whichmay cause acute or chronic toxic conditions to the aquatic biota, or which


### 496 40 CFR Ch. I (7–1–15 Edition) § 131.35

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 anenterococci 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

1 These are water column concentrations recommended toachieve 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 stagesexposed directly to the water column, the figures in parentheses apply.

2 Includes all embryonic and larval stages and all juvenile forms to 30-days following hatching.

3 NA (not applicable)

4 All minima should be considered as instantaneous concentrations to be achieved at all times.

(C) Total dissolved gas concentrations shall not exceed 110 percent of the saturation value for gases at the existing atmospheric and hydrostaticpressures 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 existingtemperature in this water classification outside of any dilution zone.

( 3 ) Provided that temperature increase resulting from nonpoint source activities shall not exceed 2.8 degreesC, 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 increasein 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 whichmay 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).

2 All minima should be considered as instantaneous concentrations to be achieved at all times.

(B) Total dissolved gas—concentrations shall not exceed 110 percent of the saturation value for gases at the existing atmospheric and hydrostaticpressures at any point of sample collection.


### 497 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 existingtemperature 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 increasein 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 whichmay 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 anenterococci 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 hydrostaticpressures 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 thisclass 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 anymeasurable 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.


### 498 40 CFR Ch. I (7–1–15 Edition) § 131.35

(g) General classifications. Generalclassifications 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 areclassified as Lake Class and Class I, respectively.

(3) All lakes on the Colville IndianReservation with existing average concentrations of TDS equal to or exceeding 2000 mg/L and their feeder streams
are classified as Lake Class and Class Irespectively 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 specificallyassigned 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 IIIOkanogan 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


### 499 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.


### 500 40 CFR Ch. I (7–1–15 Edition) § 131.36A BFreshwaterCSaltwaterDHuman Health(10¥6risk for carcinogens)For consumption of:(#) Compound CAS NumberCriterionMaximumConc.d(μg/L)(B1)CriterionContinuousConc.d(μg/L)(B2)CriterionMaximumConc.d(μg/L)(C1)CriterionContinuousConc.d(μg/L)(C2)Water &Organisms(μg/L)(D1)OrganismsOnly(μg/L)(D2)1 Antimony ................................................................... 7440360 .......................... .......................... .......................... .......................... 14 a 4300 a2 Arsenic ...................................................................... 7440382 360 m 190 m 69 m 36 m 0.018 abc 0.14 abc3 Beryllium ................................................................... 7440417 .......................... .......................... .......................... .......................... n n4 Cadmium ................................................................... 7440439 3.7 e 1.0 e 42 m 9.3 m n n5a Chromium (III) ........................................................... 16065831 550 e 180 e .......................... .......................... n nb Chromium (VI) ........................................................... 18540299 15 m 10 m 1100 m 50 m n n6 Copper ...................................................................... 7440508 17 e 11 e 2.4 m 2.4 m7 Lead .......................................................................... 7439921 65 e 2.5 e 210 m 8.1 m n n8 Mercury ..................................................................... 7439976 2.1 m 0.012 ip 1.8 m 0.025 ip 0.14 0.159 Nickel ........................................................................ 7440020 1400 e 160 e 74 m 8.2 m 610 a 4600 a10 Selenium ................................................................... 7782492 20 p 5 p 290 m 71 m n n11 Silver ......................................................................... 7440224 3.4 e .......................... 1.9 m12 Thallium .................................................................... 7440280 .......................... .......................... .......................... .......................... 1.7 a 6.3 a13 Zinc ........................................................................... 7440666 110 e 100 e 90 m 81 m14 Cyanide ..................................................................... 57125 22 5.2 1 1 700 a 220000 aj15 Asbestos ................................................................... 1332214 .......................... .......................... .......................... .......................... 7,000,000fibers/L k16 2,3,7,8-TCDD (Dioxin) .............................................. 1746016 .......................... .......................... .......................... .......................... 0.000000013 c 0.000000014 c17 Acrolein ..................................................................... 107028 .......................... .......................... .......................... .......................... 320 78018 Acrylonitrile ............................................................... 107131 .......................... .......................... .......................... .......................... 0.059 ac 0.66 ac19 Benzene .................................................................... 71432 .......................... .......................... .......................... .......................... 1.2 ac 71 ac20 Bromoform ................................................................ 75252 .......................... .......................... .......................... .......................... 4.3 ac 360 ac21 Carbon Tetrachloride ................................................ 56235 .......................... .......................... .......................... .......................... 0.25 ac 4.4 ac22 Chlorobenzene ......................................................... 108907 .......................... .......................... .......................... .......................... 680 a 21000 aj23 Chlorodibromomethane ............................................ 124481 .......................... .......................... .......................... .......................... 0.41 ac 34 ac24 Chloroethane ............................................................ 7500325 2-Chloroethylvinyl Ether ........................................... 11075826 Chloroform ................................................................ 67663 .......................... .......................... .......................... .......................... 5.7 ac 470 ac27 Dichlorobromomethane ............................................ 75274 .......................... .......................... .......................... .......................... 0.27 ac 22 ac28 1,1-Dichloroethane ................................................... 7534329 1,2-Dichloroethane ................................................... 107062 .......................... .......................... .......................... .......................... 0.38 ac 99 ac30 1,1-Dichloroethylene ................................................. 75354 .......................... .......................... .......................... .......................... 0.057 ac 3.2 ac31 1,2-Dichloropropane ................................................. 7887532 1,3-Dichloropropylene ............................................... 542756 .......................... .......................... .......................... .......................... 10 a 1700 a33 Ethylbenzene ............................................................ 100414 .......................... .......................... .......................... .......................... 3100 a 29000 a34 Methyl Bromide ......................................................... 74839 .......................... .......................... .......................... .......................... 48 a 4000 a35 Methyl Chloride ......................................................... 74873 .......................... .......................... .......................... .......................... n n36 Methylene Chloride ................................................... 75092 .......................... .......................... .......................... .......................... 4.7 ac 1600 ac37 1,1,2,2-Tetrachloroethane ........................................ 79345 .......................... .......................... .......................... .......................... 0.17 ac 11 ac38 Tetrachloroethylene .................................................. 127184 .......................... .......................... .......................... .......................... 0.8 c 8.85 c39 Toluene ..................................................................... 108883 .......................... .......................... .......................... .......................... 6800 a 200000 a


### 501 Environmental Protection Agency § 131.3640 1,2-Trans-Dichloroethylene ...................................... 15660541 1,1,1-Trichloroethane ................................................ 71556 .......................... .......................... .......................... .......................... n n42 1,1,2-Trichloroethane ................................................ 79005 .......................... .......................... .......................... .......................... 0.60 ac 42 ac43 Trichloroethylene ...................................................... 79016 .......................... .......................... .......................... .......................... 2.7 c 81 c44 Vinyl Chloride ........................................................... 75014 .......................... .......................... .......................... .......................... 2 c 525 c45 2-Chlorophenol ......................................................... 9557846 2,4-Dichlorophenol .................................................... 120832 .......................... .......................... .......................... .......................... 93 a 790 aj47 2,4-Dimethylphenol ................................................... 10567948 2-Methyl-4,6-Dinitrophenol ....................................... 534521 .......................... .......................... .......................... .......................... 13.4 76549 2,4-Dinitrophenol ...................................................... 51285 .......................... .......................... .......................... .......................... 70 a 14000 a50 2-Nitrophenol ............................................................ 8875551 4-Nitrophenol ............................................................ 10002752 3-Methyl-4-Chlorophenol .......................................... 5950753 Pentachlorophenol .................................................... 87865 20 f 13 f 13 7.9 0.28 ac 8.2 acj54 Phenol ....................................................................... 108952 .......................... .......................... .......................... .......................... 21000 a 4600000 aj55 2,4,6-Trichlorophenol ................................................ 88062 .......................... .......................... .......................... .......................... 2.1 ac 6.5 ac56 Acenaphthene ........................................................... 8332957 Acenaphthylene ........................................................ 20896858 Anthracene ............................................................... 120127 .......................... .......................... .......................... .......................... 9600 a 110000 a59 Benzidine .................................................................. 92875 .......................... .......................... .......................... .......................... 0.00012 ac 0.00054 ac60 Benzo(a)Anthracene ................................................. 56553 .......................... .................................................... .......................... 0.0028 c 0.031 c61 Benzo(a)Pyrene ........................................................ 50328 .......................... .......................... .......................... .......................... 0.0028 c 0.031 c62 Benzo(b)Fluoranthene .............................................. 205992 .......................... .................................................... .......................... 0.0028 c 0.031 c63 Benzo(ghi)Perylene .................................................. 19124264 Benzo(k)Fluoranthene .............................................. 207089 .......................... .................................................... .......................... 0.0028 c 0.031 c65 Bis(2-Chloroethoxy)Methane .................................... 11191166 Bis(2-Chloroethyl)Ether ............................................ 111444 .......................... .......................... .......................... .......................... 0.031 ac 1.4 ac67 Bis(2-Chloroisopropyl)Ether ...................................... 108601 .......................... .......................... .......................... .......................... 1400 a 170000 a68 Bis(2-Ethylhexyl)Phthalate ........................................ 117817 .......................... .................................................... .......................... 1.8 ac 5.9 ac69 4-Bromophenyl Phenyl Ether ................................... 10155370 Butylbenzyl Phthalate ............................................... 8568771 2-Chloronaphthalene ................................................ 9158772 4-Chlorophenyl Phenyl Ether ................................... 700572373 Chrysene .................................................................. 218019 .......................... .......................... .......................... .......................... 0.0028 c 0.031 c74 Dibenzo(ah)Anthracene ............................................ 53703 .......................... .......................... .......................... .......................... 0.0028 c 0.031 c75 1,2-Dichlorobenzene ................................................. 95501 .......................... .......................... .......................... .......................... 2700 a 17000 a76 1,3-Dichlorobenzene ................................................. 541731 .......................... .......................... .......................... .......................... 400 260077 1,4-Dichlorobenzene ................................................. 106467 .......................... .......................... .......................... .......................... 400 260078 3,3′-Dichlorobenzidine .............................................. 91941 .......................... .......................... .......................... .......................... 0.04 ac 0.077 ac79 Diethyl Phthalate ...................................................... 84662 .......................... .......................... .......................... .......................... 23000 a 120000 a80 Dimethyl Phthalate ................................................... 131113 .......................... .......................... .......................... .......................... 313000 290000081 Di-n-Butyl Phthalate .................................................. 84742 .......................... .......................... .......................... .......................... 2700 a 12000 a82 2,4-Dinitrotoluene ..................................................... 121142 .......................... .......................... .......................... .......................... 0.11 c 9.1 c83 2,6-Dinitrotoluene ..................................................... 60620284 Di-n-Octyl Phthalate ................................................. 11784085 1,2-Diphenylhydrazine .............................................. 122667 .......................... .......................... .......................... .......................... 0.040 ac 0.54 ac86 Fluoranthene ............................................................. 206440 .......................... .......................... .......................... .......................... 300 a 370 a87 Fluorene .................................................................... 86737 .......................... .......................... .......................... .......................... 1300 a 14000 a88 Hexachlorobenzene .................................................. 118741 .......................... .......................... .......................... .......................... 0.00075 ac 0.00077 ac89 Hexachlorobutadiene ................................................ 87683 .......................... .................................................... .......................... 0.44 ac 50 ac


### 502 40 CFR Ch. I (7–1–15 Edition) § 131.36A BFreshwaterCSaltwaterDHuman Health(10¥6risk for carcinogens)For consumption of:(#) Compound CAS NumberCriterionMaximumConc.d(μg/L)(B1)CriterionContinuousConc.d(μg/L)(B2)CriterionMaximumConc.d(μg/L)(C1)CriterionContinuousConc.d(μg/L)(C2)Water &Organisms(μg/L)(D1)OrganismsOnly(μg/L)(D2)90 Hexachlorocyclopentadiene ...................................... 77474 .......................... .......................... .......................... .......................... 240 a 17000 aj91 Hexachloroethane ..................................................... 67721 .......................... .......................... .......................... .......................... 1.9 ac 8.9 ac92 Indeno(1,2,3-cd)Pyrene ............................................ 193395 .......................... .................................................... .......................... 0.0028 c 0.031 c93 Isophorone ................................................................ 78591 .......................... .......................... .......................... .......................... 8.4 ac 600 ac94 Naphthalene ............................................................. 9120395 Nitrobenzene ............................................................ 98953 .......................... .......................... .......................... .......................... 17 a 1900 aj96 N-Nitrosodimethylamine ........................................... 62759 .......................... .......................... .......................... .......................... 0.00069 ac 8.1 ac97 N-Nitrosodi-n-Propylamine ....................................... 62164798 N-Nitrosodiphenylamine ........................................... 86306 .......................... .......................... .......................... .......................... 5.0 ac 16 ac99 Phenanthrene ........................................................... 85018100 Pyrene ...................................................................... 129000 .......................... .......................... .......................... .......................... 960 a 11000 a101 1,2,4-Trichlorobenzene ............................................. 120821102 Aldrin ......................................................................... 309002 3 g .......................... 1.3 g .......................... 0.00013 ac 0.00014 ac103 alpha-BHC ................................................................ 319846 .......................... .......................... .......................... .......................... 0.0039 ac 0.013 ac104 beta-BHC .................................................................. 319857 .......................... .......................... .......................... .......................... 0.014 ac 0.046 ac105 gamma-BHC ............................................................. 58899 2 g 0.08 g 0.16 g .......................... 0.019 c 0.063 c106 delta-BHC ................................................................. 319868107 Chlordane ................................................................. 57749 2.4 g 0.0043 g 0.09 g 0.004 g 0.00057 ac 0.00059 ac108 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 ac110 4,4′-DDD ................................................................... 72548 .......................... .......................... .......................... .......................... 0.00083 ac 0.00084 ac111 Dieldrin ...................................................................... 60571 2.5 g 0.0019 g 0.71 g 0.0019 g 0.00014 ac 0.00014 ac112 alpha-Endosulfan ...................................................... 959988 0.22 g 0.056 g 0.034 g 0.0087 g 0.93 a 2.0 a113 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 a115 Endrin ....................................................................... 72208 0.18 g 0.0023 g 0.037 g 0.0023 g 0.76 a 0.81 aj116 Endrin Aldehyde ....................................................... 7421934 .......................... .......................... .......................... .......................... 0.76 a 0.81 aj117 Heptachlor ................................................................ 76448 0.52 g 0.0038 g 0.053 g 0.0036 g 0.00021 ac0.00021 ac118 Heptachlor Epoxide .................................................. 1024573 0.52 g 0.0038 g 0.053 g 0.0036 g 0.00010 ac 0.00011 ac119 PCB–1242 ................................................................ 53469219 .......................... 0.014 g .......................... 0.03 g120 PCB–1254 ................................................................ 11097691 .......................... 0.014 g .......................... 0.03 g121 PCB–1221 ................................................................ 11104282 .......................... 0.014 g .......................... 0.03 g122 PCB–1232 ................................................................ 11141165 .......................... 0.014 g .......................... 0.03 g123 PCB–1248 ................................................................ 12672296 .......................... 0.014 g .......................... 0.03 g124 PCB–1260 ................................................................ 11096825 .......................... 0.014 g .......................... 0.03 g125a PCB–1016 ................................................................ 12674112 .......................... 0.014 g .......................... 0.03 g125b Polychlorinated biphenyls(PCBs) ................................................................... .......................... .......................... .......................... .......................... .......................... 0.00017 q 0.00017 q126 Toxaphene ................................................................ 8001352 0.73 0.0002 0.21 0.0002 0.00073 ac 0.00075acTotal Number of Criteria (h) = ............................... .......................... 24 29 23 27 85 84


### 503 Environmental Protection Agency § 131.36

F OOTNOTES

a. Criteria revised to reflect current agency q 1 * 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 shortperiod 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. μ g/L = micrograms per liter.

e. Freshwater aquatic life criteria for these metals are expressed as a function of total hardness (mg/L as CaCO 3 ), 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 forpentachlorophenol 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 offreshwater 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 μ g/l more than once in a 3-year period in the ambient water, the edible portion of aquatic species of concern must be analyzed to determine whether the concentration of methyl mercury exceeds the FDA action level (1.0 mg/kg). If the FDA action level isexceeded, the State must notify the appropriate EPA Regional Administrator, initiate a revision of its mercury criterion in itswater 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 humanhealth from consumption of aquatic organisms (excluding water) was presented in the 1980 criteria document or in the 1986 Quality Criteria for Water. Nevertheless, sufficientinformation 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 healthcriteria 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).

G ENERAL N OTES

1. This chart lists all of EPA’s prioritytoxic 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 addedthe Chemical Abstracts Service (CAS) registry numbers, which provide a unique identification for each chemical.

2. The following chemicals have organoleptic based criteria recommendationsthat 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).

N OTE TO PARAGRAPH (b)(1): On April 14, 1995, the Environmental Protection Agency


### 504 40 CFR Ch. I (7–1–15 Edition) § 131.36

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 { m A [ln(hardness)]+b A } ×
Acute Conversion Factor CCC=WER exp { m C [ln(hardness)]+b C } ×
Chronic Conversion Factor

Final CMC and CCC values should be rounded to two significant figures.

Metal m A b A m C b C 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:

a The 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 sectionare 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 mixingzones; 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):

A QUATIC L IFE Acute criteria (CMC) 1 Q 10 or 1 B 3
Chronic criteria

(CCC) 7 Q 10 or 4 B 3

H UMAN H EALTH 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 thehighest instream concentration of a priority toxic pollutant consisting of a onehour average not to be exceeded morethan once every three years on the average; CCC—criteria continuous concentration—the water quality criteria to protect againstchronic effects in aquatic life is the highest instream concentration of a prioritytoxic 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 3years. It is determined by EPA’s computerized method (DFLOW model); 7 Q 10 is the lowest average 7 consecutive daylow 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


### 505 Environmental Protection Agency § 131.36

hydrologically; and the harmonic meanflow is a long term mean flow value calculated by dividing the number of dailyflows 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 isequal 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 anddata 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 biologyof 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) ofthis 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 shallnot exceed 400 mg/l as calcium carbonate, even if the actual ambient hardness is greater than 400 mg/l ascalcium 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 fromthe equations in footnote m. in the criteria matrix in paragraph (b)(1) of thissection 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 QualityRegulations 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 thematrix 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.


### 506 40 CFR Ch. I (7–1–15 Edition) § 131.36

(2) Vermont, EPA Region 1. (i) All waters assigned to the following use
classifications in the Vermont Water Quality Standards adopted under theauthority 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 thematrix 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 criterio n 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 thematrix 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 t he 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 sectionapply to the use classifications identified in paragraph (d)(6)(i) of this section:

Use classification Applicable criteria

Class I .......................................................................................... This classification is assigne d 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 cr iteria 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 useclassification in the Kansas Department of Health and Environment regulations, K.A.R. 28–16–28b throughK.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


### 507 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 thematrix 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 crite ria 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 al l 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. Thesecriteria 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 waterquality 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 thematrix 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


### 508 40 CFR Ch. I (7–1–15 Edition) § 131.36

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, thesewaters are assigned the criteria in:

Column B2—pollutant 10Waters 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, thesewaters 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 includean MUN use designation and that the State has either excluded or partially excluded from coverage under its WaterQuality 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 notapply Table 1 or 2 standards. These criteria are:

Column B1—all pollutants Column B2—all pollutants Column D1—all pollutants

except #2


### 509 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 WaterQuality 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 notapply 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 notapply 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 becausehigh 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 classificationsin 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 sectionapply 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:


### 510 40 CFR Ch. I (7–1–15 Edition) § 131.37

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 thematrix 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, 2 2, 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, 2 6, 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 useclassifications 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 thematrix 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 c riteria in: Column D2—
all. Water Supply (domestic) ............................................................. These classifications are assigned the crit eria in: Column D1—
all. Recreation ................................................................................... This classification is assigned th e 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]

E DITORIAL N OTE : For F EDERAL R EGISTER 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 followingcriteria 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:


### 511 Environmental Protection Agency § 131.37

(1) Estuarine habitat criteria. (i) General rule. (A) Salinity (measured at the surface) shall not exceed 2640micromhos/centimeter specific conductance at 25 ° C (measured as a 14-day moving average) at the Confluence ofthe 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+e K ) where

K = A + (B*natural logarithm of the previous month’s 8-River Index); A and B are determined by reference toTable 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.

T ABLE 1. C ONSTANTS 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 atthe salinity measuring station maintained by the U.S. Bureau of Reclamation at Port Chicago (km 64). TheChipps 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 givenmonth 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 RiverFish 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 SanJoaquin 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


### 512 40 CFR Ch. I (7–1–15 Edition) § 131.37

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 andcaptured 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 themethodology 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 reliableverification 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 criteriavalue (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 greaterthan 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 atBenecia 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. Whenthe 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 fouryears after release are also used to calculate a survival index for each release. Smolt survival indices from
ocean recoveries are calculated as:

OSI=R 1 /M 1 ÷ R 2 /M 2

where

R 1 = number of tagged adults recovered from the upstream release

M 1 = number released upstream

R 2 = number of tagged adults recovered from the Port Chicago release

M 2 = number released at Port Chicago

( 1 ) The number of tagged adults recovered from the ocean fishery is provided by the Pacific States MarineFisheries 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 Mossdaleand captured at Chipps Island, or alternatively released at Mossdale and Port Chicago and recovered from the oceanfishery, using the methodology described in paragraph (a)(2)(iii). An alternative methodology for computing fish migration criteria values can beused 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 bemade each year to provide a statistically reliable estimate of the SJFMCfor 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


### 513 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 greaterthan 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 atBenicia 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. Whenthe 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=R 1 /M 1 ÷ R 2 /M 2

where

R 1 = number of tagged adults recovered from the upstream release

M 1 = number released upstream

R 2 = number of tagged adults recovered from the Port Chicago release

M 2 = number released at Port Chicago

( 1 ) The number of tagged adults recovered from the ocean fishery is provided by the Pacific States MarineFisheries Commission, which maintains a port sampling program.

( 2 ) [Reserved] (3) Suisun marsh criteria. (i) Water quality conditions sufficient to supporta natural gradient in species composition and wildlife habitat characteristicof 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 increasedmortality and loss of habitat from increased water salinity; or for plants,significant reduction in stature or percent cover from increased water or soilsalinity 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 SanFrancisco 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:


### 514 40 CFR Ch. I (7–1–15 Edition) § 131.37

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
andReady 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 forthe 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 forthe 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 thetwelve 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: I SJ = 0.6X+0.2Y and 0.2Z

where

I SJ = San Joaquin Valley Index X=Current year’s April-July San Joaquin Valley unimpaired runoffY=Current year’s October-March San Joaquin Valley unimpaired runoffZ=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: StanislausRiver, 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. Itshall be measured by specific conductance in accordance with the proceduresset forth in 40 CFR 136.3, Table 1B, Parameter 64.

[60 FR 4707, Jan. 24, 1995]


### 515 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:


### 516 40 CFR Ch. I (7–1–15 Edition) § 131.38


### 517 Environmental Protection Agency § 131.38


### 518 40 CFR Ch. I (7–1–15 Edition) § 131.38

F OOTNOTES TO TABLE IN PARAGRAPH (b)(1):

a. Criteria revised to reflect the Agency q1* or RfD, as contained in the IntegratedRisk Information System (IRIS) as of October 1, 1996. The fish tissue bioconcentrationfactor (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. EPAapproved 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 fora short period of time without deleterious effects. Criteria Continuous Concentration (CCC) equals the highest concentration of apollutant 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 forpentachlorophenol are expressed as a function of pH, and are calculated as follows:


### 519 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 offreshwater or saltwater, acute or chronic criteria. For human health, there are 92 priority toxic pollutants with either ‘‘water + organism’’ or ‘‘organism only’’ criteria. Notethat 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 factthat 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 humanhealth from consumption of aquatic organisms (excluding water) was presented in the 1980 criteria document or in the 1986 Quality Criteria for Water. Nevertheless, sufficientinformation 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 criteriafor 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 specificwaters 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 toand 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 NTRand was promulgated in the total recoverable form. The specific waters to which the NTR criterion applies include: Waters of theSan 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 totalrecoverable form. This criterion was promulgated for specific waters in California in theNTR and was promulgated in the total recoverable form. The specific waters to which the NTR criterion applies include: Waters of theSan 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). TheState 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 asbays 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-SanJoaquin Delta and waters of the State defined as inland ( i.e., all surface waters of theState not bays or estuaries or ocean) that include a MUN use designation. This section


### 520 40 CFR Ch. I (7–1–15 Edition) § 131.38

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., allsurface 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, and12674112, 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.

G ENERAL NOTES TO TABLE IN PARAGRAPH (b)(1)

1. The table in this paragraph (b)(1) listsall 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 AbstractsService (CAS) registry numbers, which provide a unique identification for each chemical.

2. The following chemicals haveorganoleptic-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 { m A [1n ( hardness )]+ b A } ) (ii) CCC = WER × ( Chronic Conversion

Factor ) × (exp { m C [ln( hardness )]+ b C } ) (iii) Table 1 to paragraph (b)(2) of this

section:

Metal m A b A m C b C

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 )


### 521 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

F OOTNOTES 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 (CaCO 3 ). Other hardness can be used; CFs should be recalculated using the equations in table 3 to paragraph (b)(2) of this section.

c Bioaccumulative compound and inappropriate to adjust to percent dissolved.

d EPA has not published an aquatic life criterion value.

N OTE 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 ofWater Policy and Technical Guidance on Interpretation and Implementation of Aquatic Life Metals Criteria’’, October 1, 1993, byMartha 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 adoptedby the State, except when State regulations contain criteria which are more stringent for a particular parameterand 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 thissection are subject to the State’s general rules of applicability in the same way and to the same extent as areother 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 zoneregulations or implementation procedures, the criteria apply at the appropriate locations within or at theboundary 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

N OTE TO TABLE 4 OF PARAGRAPH (c)(2): 1. CMC (Criteria Maximum Concentration) is the water quality criteria to protect againstacute 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 isthe 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


### 522 40 CFR Ch. I (7–1–15 Edition) § 131.38

years. It is determined by EPA’s computerized method (DFLOW model).

5. 7 Q 10 is the lowest average 7 consecutiveday 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 numericstandards do not apply, then the criteria included in paragraph (d) of this section apply at all flows.

(v) If the CMC short-term averagingperiod, 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 analternative 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 willpublish 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 isequal 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 saltwatercriteria 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 anddata 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 water body is dominatedby saltwater aquatic life and that saltwater criteria are more appropriate. Before approving any change, EPA willpublish 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 hardnessof 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, ahardness 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 isgenerally 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 thedefault 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


### 523 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 ratioof 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 watersidentified 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 theState 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 presencein 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 intendedto 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 pointsource dischargers will promptly comply with any new or more restrictivewater quality-based effluent limitations (‘‘WQBELs’’) based on the waterquality criteria set forth in this section. (2) When a permit issued on or afterMay 18, 2000 to a new discharger contains a WQBEL based on water quality criteria set forth in paragraph (b) ofthis 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 inlandsurface 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


### 524 40 CFR Ch. I (7–1–15 Edition) § 131.38

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 aspossible, 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 oneyear. 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 progressreports on the status of interim requirements.

(6) In no event shall the permit issuing authority approve a schedule ofcompliance 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 complianceare 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, interimpermit 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 finalpermit limits, which do not occur during the term of the permit, must occur within five years from the date of issuance, reissuance or modification ofthe permit which initiates the compliance schedule. Where shorter schedulesof 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]

E DITORIAL N OTE : 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 columnheadings 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) * * *


### 525 Environmental Protection Agency § 131.38A BFreshwaterCSaltwaterDHuman health (10¥6) riskfor carcinogens)For consumption of:# Compound CASnumberCriterionmaximumconc. (μg/L)dB1Criterioncontinousconc. (μg/L)dB2Criterionmaximumconc. (μg/L)dC1Criterioncontiniousconc. (μg/L)dC2Water &organisms(μg/L)D1Organismsonly(μg/L)D2* * * * * * *23. Chlorodibromomethane ................................................. 124481 .................... .................... .................... ....................a c0.41a c34* * * * * * *67. Bis(2-Chloroisopropyl)Ether ........................................... 108601 .................... .................... .................... ....................a1,400a t170,000* * * * * * *Footnotes to table in paragraph (b)(1):* * * * * * *aCriteria revised to reflect the Agency q1* or RfD, as contained in the Integrated Risk Information System (IRIS) as of October1, 1996. The fish tissue bioconcentration factor (BCF) from the 1980 documents was retained in each case.cCriteria are based on carcinogenicity of 10¥6risk.dCriteria Maximum Concentration (CMC) equals the highest concentration of a pollutant to which aquatic life can be exposed for ashort period of time withoutdeleterious effects. Criteria Continuous Concentration (CCC) equals the highest concentration of a pollutant to which aquatic life can be exposed for an extendedperiod 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 Statedefined as bays and estuaries including San Francisco Bay upstream to and including Suisun Bay and the Sacramento-San Joaquin Delta; and waters of theState 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 ofthe NTR for these criteria.


### 526 40 CFR Ch. I (7–1–15 Edition) § 131.40

* * * * *

§ 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 33CFR 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 Recreati on. Mayaguez Bay ......................... Punta Guanajibo .................... Punta Algarrobo ..................... Primary Contact Rec reation. Ponce Port ............................... Punta Carenero ...................... Punta Cuchara ....................... Primary Contac t Recreation. San Juan Port .......................... mouth of Rı  ́ o Bayamo  ́ n .......... Punta El Morro ....................... Primary Contact Recreation. Yabucoa Port ........................... Punta Icacos .......................... Punta Yeguas ........................ Primary Contac t 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. Theenterococci 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 confidencelimit 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 onlyto the permittee requesting the variance and only to the pollutant or pollutants specified in the variance; theunderlying 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 ofthe 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 listedunder 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 attainingthe 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 levelsprevent the attainment of the use, unless these conditions may be compensated for by the discharge of sufficient volume of effluent discharges without violating Commonwealthwater conservation requirements to enable uses to be met;

(iii) Human caused conditions orsources 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 suchmodification 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


### 527 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 shallsubmit 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 forone 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 acondition 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 fiveyears or the term of the NPDES permit, whichever is less. A variance may be renewed if the applicant reappliesand demonstrates that the use in question is still not attainable. Renewal ofthe 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 marinecoastal 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: alifeguard, 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 leasthalf of the number of people as at typical designated bathing beach waterswithin 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 beachwaters but typically, during the recreation season, are used by less than half of the number of people as at typicaldesignated 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 anybuilding, structure, facility, or installation from which there is or may be adischarge of pathogens, the construction of which commenced on or after December 16, 2004. It does not include relocation of existing combined sewer
overflow outfalls.


### 528 40 CFR Ch. I (7–1–15 Edition) § 131.41

(7) Existing pathogen discharger for thepurposes 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)

C1Designated 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)

C1Designated 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 thissection are subject to the State’s general rules of applicability in the same way and to the same extent as areother 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.


### 529 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 thejurisdiction of Regional Board 4), Florida, Georgia, Hawaii (except for coastal
recreation waters within 300 meters ofthe shoreline), Louisiana, Maine (except for SA waters and SB and SC
waters with human sources of fecalcontamination), 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 forClean Water Act purposes that authorizes compliance schedules for NationalPollutant Discharge Elimination System permit limitations needed to meetthe criteria in paragraph (c) of this section. All dischargers shall promptlycomply 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 onwater quality criteria set forth in paragraph (c) of this section, the permitteeshall 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 onwater 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 foran 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, interimpermit 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 finalpermit limits, which do not occur during the term of the permit, must occur within five years from the date of issuance, reissuance or modification ofthe 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


### 530 40 CFR Ch. I (7–1–15 Edition) § 131.42

Rico Environmental Quality Board (EQB).

(4) The following are not subject to an antidegradation review due to thefact 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 qualityshall 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) goalsof propagation of fish, shellfish, wildlife and recreation in and on the waters. High Quality Waters are to beidentified 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 orecologically important, unique or sensitive.

(ii) [Reserved] (c) Antidegradation Review Procedure. (1) The antidegradation review will
commence with the submission of theCWA 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 (LawNo. 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 beprovided (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 shallprovide EQB with the information regarding the discharge, as required bythe 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


### 531 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 informingthe public of EQB’s preliminary decision and granting a public participation period of at least thirty (30) days.

(6) Address the comments receivedfrom the interested parties and consider such comments as part of the decision making process.

(7) Make the final determination toissue 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) identifiedas 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 ofconcern 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 DailyLoad (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 thewaterbody, 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 TMDLis 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 provisionsof 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, theeffects of all discharges shall be evaluated through a waste load allocationanalysis 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 thePRWQSR. EQB will not allow the entire assimilative capacity of a


### 532 40 CFR Ch. I (7–1–15 Edition) § 131.44

waterbody for a parameter of concern to be allocated to a discharger, if thenecessity 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 amendingthe 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 dischargeof dredged or fill material into a wetland if it can be demonstrated thatsuch 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 qualityor the aquatic or other life in the wetland due to the discharge of dredged orfill material should be avoided, minimized and mitigated.

(ii) The discharge of dredged or fill
material shall not be certified if thereis a practicable alternative to the proposed discharge which would have lessadverse impact on the recipient ecosystem, so long as the alternative doesnot have other more significant adverse environmental consequences. Activities which are not water dependentare presumed to have practicable alternatives, unless the applicant clearly demonstrates otherwise. No discharge of dredged and fill material shall becertified unless appropriate and practicable steps have been taken which minimize potential adverse impacts ofthe 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 byEPA’’ (Phosphorus Rule), is incorporated by reference as described inparagraph (a)(2). EPA is not incorporating the full text of this document, but correcting specified portions of thePhosphorus Rule as directed by a federal district court as indicated by the strikeout markings. The EPA is only incorporating by reference thesecrossed-out portions in the Florida Administrative Code 62–302.540. The Director of the Federal Register approvesthis incorporation by reference in accordance with 5 U.S.C. 552(a). Copies ofthe 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/floridaeverglades

l index.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/federal

l register/
code

l of

l

federal

l regulations/
ibr

l locations.html. EPA adopts and identifies the portions of the documentthat 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


### 533 Environmental Protection Agency § 131.44

Water Act. Remaining portions of thePhosphorus 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 netimprovement 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 ForeverAct,’’ as annotated by EPA’’ is incorporated by reference as described inparagraph (b)(2). The EPA is not incorporating the full text of this document, but correcting specified portions of thestatute 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 AvenueNW., 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/ floridaeverglades

l index.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/federal

l register/
code

l of

l

federal

l regulations/
ibr

l locations.html. EPA adopts and identifies the portions of the documentthat have strikeout markings as portions of the statute that EPA disapproved on December 3, 2009, and thatare not applicable water quality standards for the purposes of the Clean Water Act. Remaining portions of thestatute 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 ofthe 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 enhancementsto 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;


### 534 40 CFR Ch. I (7–1–15 Edition) Pt. 132

(xii) In sentence 1 of paragraph (10), the phrase, ‘‘to implement the pre-2006projects 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 textannotations added by hand to the Everglades Forever Act. These text inserts are included only for the convenienceof 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.

T ABLES TO P ART 132
A PPENDIX A TO P ART 132—G REAT L AKES W ATER Q UALITY I NITIATIVE M ETHODOLO

GIES FOR D EVELOPMENT OF A QUATIC L IFE C RITERIA AND V ALUES A PPENDIX B TO P ART 132—G REAT L AKES W ATER Q UALITY I NITIATIVE A PPENDIX C TO P ART 132—G REAT L AKES W ATER Q UALITY I NITIATIVE M ETHODOLO

GIES FOR D EVELOPMENT OF H UMAN H EALTH C RITERIA AND V ALUES A PPENDIX D TO P ART 132—G REAT L AKES W ATER Q UALITY I NITIATIVE M ETHODOLOGY

FOR THE D EVELOPMENT OF W ILDLIFE C RI

TERIA A PPENDIX E TO P ART 132—G REAT L AKES W ATER Q UALITY I NITIATIVE A NTIDEGRADATION P OLICY A PPENDIX F TO P ART 132—G REAT L AKES W ATER Q UALITY I NITIATIVE I MPLEMENTA

TION P ROCEDURES

A UTHORITY : 33 U.S.C. 1251 et seq.

S OURCE : 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 andTribes 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, andother 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 andTribes must adopt provisions consistent with the Guidance in this part applicable to waters in the Great LakesSystem or be subject to EPA promulgation of its terms pursuant to this part.

(d) EPA understands that the scienceof risk assessment is rapidly improving. Therefore, to ensure that the scientific basis for the methodologies in appendices A through D are alwayscurrent and peer reviewed, EPA will review the methodologies and revise them, as appropriate, every 3 years.

(e) Certain documents referenced inthe 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, VA22161. Alternatively, copies may be obtained for a fee upon request to the
Educational Resources Information Center/Clearinghouse for Science,


### 535 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 theClean 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 thesame 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 effectto 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 asa result of uptake from all environmental sources.

Bioaccumulation factor (BAF) is theratio (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 transformationproduct, 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 anorganometal, 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 gillmembranes or other external body surfaces.

Bioconcentration factor (BCF) is theratio (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 wateronly 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’slipid-normalized concentration in tissue of an aquatic organism to its organic carbon-normalized concentration in surface sediment, in situationswhere the ratio does not change substantially over time, both the organism and its food are exposed, and the surface sediment is representative ofaverage surface sediment in the vicinity of the organism.

Carcinogen is a substance which causes an increased incidence of benignor malignant neoplasms, or substantially decreases the time to develop neoplasms, in animals or humans. Theclassification 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,


### 536 40 CFR Ch. I (7–1–15 Edition) § 132.2

and Saint Lawrence River to the Canadian Border.

Criterion continuous concentration (CCC) is an estimate of the highest concentration of a material in the watercolumn 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 thewater 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 specifiedeffects in 50 percent of a group of organisms under specified conditions.

Endangered or threatened species arethose species that are listed as endangered or threatened under section 4 of the Endangered Species Act.

Existing Great Lakes discharger is anybuilding, structure, facility, or installation from which there is or may be a ‘‘discharge of pollutants’’ (as defined in40 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 landwithin the limits of any Indian reservation under the jurisdiction of theUnited 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 acceptableacute toxicity tests have been conducted on the material) have higherGMAVs, 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 acceptablechronic toxicity tests have been conducted on the material) have higherGMCVs, (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 aHuman Cancer Value (HCV) for a pollutant that meets the minimum datarequirements 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


### 537 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 thewater, and water-related recreation activities; or consuming fish from thewater, 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 communityrecognized 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 agroup 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 greatestamount 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 minimumconcentration 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 anybuilding, structure, facility, or installation from which there is or may be a ‘‘discharge of pollutants’’ (as defined in40 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 oftoxicant to which organisms are exposed in a full life-cycle or partial lifecycle (short-term) test, that causes no
observable adverse effects on the testorganisms (i.e., the highest concentration of toxicant in which the values forthe 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 allwaters enclosed by constructed breakwaters, but not including the connecting channels.

Quantification level is a measurement
of the concentration of a contaminantobtained 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 laboratoryprocedure for monitoring of the contaminant.


### 538 40 CFR Ch. I (7–1–15 Edition) § 132.2

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 ofa 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 allacceptable 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 flowthat represents critical conditions, upstream from the source, for protectionof aquatic life, human health, or wildlife.

Threshold effect is an effect of a substance for which there is a theoreticalor 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 ofthis 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 toimplement 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 Fof 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 definedat 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 CFR130.2(h). In the absence of a TMDL approved by EPA pursuant to 40 CFR
130.7 or an assessment and remediationplan developed and approved in accordance with procedure 3.A of appendix F of this part, a WLA is the allocationfor an individual point source, that ensures that the level of water quality tobe achieved by the point source is derived from and complies with all applicable water quality standards.

Wet weather point source means anydiscernible, 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 amunicipal separate storm sewer as defined at 40 CFR 122.26(b)(8); stormwater 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


### 539 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 Tribesshall 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 inaccordance with §132.4(d) that are consistent with:

(a) The acute water quality criteria for protection of aquatic life in Table 1of 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 2of 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 ofthis 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 applicationof methodologies, policies and procedures.

(a) The Great Lakes States andTribes 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 Developmentof 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, andD 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 waterquality 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 shalluse 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 inappendix 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 havebeen designated as public water supplies by any State or Tribe in accordance with 40 CFR 131.10.


### 540 40 CFR Ch. I (7–1–15 Edition) § 132.5

(ii) Criteria and values derived asHCV-Nondrinking and HNV-Nondrinking shall apply to all waters of the Great Lakes System other thanthose 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 andTribes shall apply implementation procedures consistent with the proceduresin appendix F of this part for all applicable purposes under the Clean WaterAct, including developing total maximum daily loads for the purposes of section 303(d) and water quality-basedeffluent 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 theseimplementation procedures in establishing controls on the discharge of any pollutant by a wet weather point source. Any adopted implementationprocedures 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. Anyprocedures 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 antidegradationpolicy 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 part131 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 withall 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 withall 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 antidegradationstandards 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 LakesStates 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 AttorneyGeneral 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)


### 541 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 andprocedures 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 submissionrequired 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 thispart 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 indicatingthe effective date of the part 132 requirements in the identified jurisdictions.

(e) If a Great Lakes State or Tribesubmits 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 shallissue 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 Tribalsubmissions 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 F EDERAL R EGISTER 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 F EDERAL R EGISTER identifying the approved and disapproved elements of
the submission and a final rule in the
F EDERAL R EGISTER 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 intoaccount 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 proceduresin accordance with procedure 1 of appendix F of this part; or

(ii) It has adopted a procedure bywhich water quality-based effluent limits and total maximum daily loads are developed using the more protective of:

(A) Numeric criteria adopted by theState 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 orTribe 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


### 542 40 CFR Ch. I (7–1–15 Edition) § 132.6

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 asprotective 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 ensurethat water quality is not likely to jeopardize the continued existence of any endangered or threatened species listedunder 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 thesubmitted 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, therequirements 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 theGreat Lakes System in the State of Indiana.

(b) Effective September 5, 2000, therequirements 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 ofNew 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 byNew York State Department of Environmental Conservation (see section
703.5 of Title 6 of the New York StateCodes, 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, thechronic aquatic life criterion for selenium in Table 2 of this part shall applyto 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


### 543 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]

T ABLES TO P ART 132

T ABLE 1—A CUTE W ATER Q UALITY C RITERIA

FOR P ROTECTION OF A QUATIC L IFE IN A MBI

ENT W ATER

EPA recommends that metals criteria be expressed as dissolved concentrations (seeappendix A, I.A.4 for more information regarding metals criteria).

(a)

Chemical CMC ( μ g/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=CMC tr

. b CMC d = (CMC tr ) CF. The CMC d shall be rounded to two significant digits.

c CMC should be considered free cyanide as CN.

d CMC=CMC t

. Notes: The term ‘‘n/a’’ means not applicable. CMC is Criterion Maximum Concentration. CMC tr is the CMC expressed as total recoverable. CMC d is the CMC expressed as a dissolved concentration. CMC t is the CMC expressed as a total concentration.

(b)

Chemical m A b A 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 CMC tr = exp { m A [ln (hardness)]+b A }

. b CMC d = (CMC tr ) CF. The CMC d shall be rounded to two significant digits.

c CMC t = exp m A { [pH]+b A } . The CMC t shall be rounded to two significant digits.

Notes: The term ‘‘exp’’ represents the base e exponential function. The term ‘‘n/a’’ means not applicable. CMC is Criterion Maximum Concentration. CMC tr is the CMC expressed as total recoverable. CMC d is the CMC expressed as a dissolved concentration. CMC t is the CMC expressed as a total concentration.

[60 FR 15387, Mar. 23, 1995, as amended at 65 FR 35286, June 2, 2000] T ABLE 2—C HRONIC W ATER Q UALITY C RITERIA

FOR P ROTECTION OF A QUATIC L IFE IN A MBI

ENT W ATER

EPA recommends that metals criteria be expressed as dissolved concentrations (seeappendix A, I.A.4 for more information regarding metals criteria).

(a)

Chemical CCC ( μ g/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=CCC tr

. b CCC d = (CCC tr ) CF. The CCC d shall be rounded to two significant digits.

c CCC should be considered free cyanide as CN.

d CCC=CCC t

. Notes: The term ‘‘n/a’’ means not applicable. CCC is Criterion Continuous Concentration. CCC tr is the CCC expressed as total recoverable. CCC d is the CCC expressed as a dissolved concentration. CCC t is the CCC expressed as a total concentration.

(b)

Chemical m

c b

c 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 CCC tr = exp { m c [ln (hardness)]+b

c }

. b CCC d = (CCC tr ) (CF). The CCC d shall be rounded to two significant digits.

c CMC t = exp { m A [pH]+b A } . The CMC t shall be rounded to two significant digits.

Notes: The term ‘‘exp’’ represents the base e exponential function. The term ‘‘n/a’’ means not applicable. CCC is Criterion Continuous Concentration. CCC tr is the CCC expressed as total recoverable. CCC d is the CCC expressed as a dissolved concentration. CCC t is the CCC expressed as a total concentration.

T ABLE 3—W ATER Q UALITY C RITERIA FOR P ROTECTION OF H UMAN H EALTH

Chemical HNV ( μ g/L) HCV ( μ g/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


### 544 40 CFR Ch. I (7–1–15 Edition) Pt. 132, Tables

T ABLE 3—W ATER Q UALITY C RITERIA FOR P ROTECTION OF H UMAN H EALTH —Continued

Chemical HNV ( μ g/L) HCV ( μ g/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]

T ABLE 4—W ATER Q UALITY C RITERIA FOR P ROTECTION OF W ILDLIFE

Chemical Criteria ( μ g/ L)

DDT and metabolites ....................................... 1.1E–5 Mercury (including methylmercury) .................. 1.3E–3 PCBs (class) .................................................... 1.2E–4 2,3,7,8-TCDD ................................................... 3.1E–9

[60 FR 15387, Mar. 23, 1995, as amended at 62 FR 11731, Mar. 12, 1997]

T ABLE 5—P OLLUTANTS S UBJECT TO F EDERAL

, S TATE

, AND T RIBAL R EQUIREMENTS

Alkalinity
Ammonia
Bacteria Biochemical oxygen demand (BOD)
Chlorine
Color Dissolved oxygen
Dissolved solids pH Phosphorus Salinity Temperature Total and suspended solids Turbidity

T ABLE 6—P OLLUTANTS OF I NITIAL F OCUS IN

THE G REAT L AKES W ATER Q UALITY I NITIATIVE

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
HexachlorobenzeneHexachlorobutadiene; 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


### 545 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
HexachloroethaneIndeno[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-NitrosodiphenylamineN-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

A PPENDIX A TO P ART 132—G REAT L AKES W ATER Q UALITY I NITIATIVE M ETH

ODOLOGIES FOR D EVELOPMENT OF A QUATIC L IFE C RITERIA AND V AL

UES

M ETHODOLOGY FOR D ERIVING A QUATIC L IFE C RITERIA : T IER 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 bodiesof water should usually be considered a separate material, except possibly for structurally similar organic compounds that onlyexist 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., somephenols 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 inchemical 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 analyticalcomponent. 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 chemistryof the material and various practical considerations, such as labor and equipment requirements, and whether the method would require measurement in the field or wouldallow 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


### 546 40 CFR Ch. I (7–1–15 Edition) Pt. 132, App. A

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 areusually 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.

N OTE : 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 dissolvedmetal 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 notcovered 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 theuse 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 decisionto 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 acuteexposure and occurs within any short observation period which begins when the exposure begins, may extend beyond the exposure period, and usually does not constitute asubstantial 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 moretest 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 arereliable. 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 maybe 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 usingacceptable 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:


### 547 Environmental Protection Agency Pt. 132, App. A

1. Brine shrimp, because they usually onlyoccur 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 toNorth 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 helpensure that each of the major kinds of possible adverse effects receives adequate consideration. An adverse effect is a change inan 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 aquaticplants 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 criterionfor 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; andc. 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 isdesirable 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 atest 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 morethan 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 atest 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 ashort 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 orderto provide protection for that important species.

B. Acute toxicity tests shall be conductedusing 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


### 548 40 CFR Ch. I (7–1–15 Edition) Pt. 132, App. A

should not be used, unless data indicate that the food did not affect the toxicity of the test material. (N OTE : 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 beused, 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 uponendpoints 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 shouldbe 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% ofa 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 testwith 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 onthe 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 areavailable 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 incompletelydeveloped 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. (N OTE : If the minimum acute-chronicratio 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, bivalvemolluscs (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: the96-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 theFinal 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 ashardness 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 chronicdata 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 becalculated 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. Fora species for which no such result is available, the SMAV shall be calculated as thegeometric 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


### 549 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 isa 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 thetest, except for removal of dead test organisms.

N OTE 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.

N OTE 2: The geometric mean of N numbersis 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, andtaking 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.

N OTE 3: Geometric means, rather than arithmetic means, are used here because the
distributions of sensitivities of individual organisms in toxicity tests on most materialsand the distributions of sensitivities of species within a genus are more likely to belognormal than normal. Similarly, geometric means are used for ACRs because quotients are likely to be closer tolognormal 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 moreSMAVs 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 (ifthere 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 e A 2 2 2

2 

### 4

4

4

0 05 = 

# ( ) 

# ( )

− 

# ( ) 

# ( )

( )

− 

# ( ) 

# ( )

= 

# ( )

− 

# ( ) 

# ( )

= 

# ( ) +

= 

# ∑

∑

∑ ∑

∑ ∑ ln ln

ln

.

N OTE : 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


### 550 40 CFR Ch. I (7–1–15 Edition) Pt. 132, App. A

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 issimilarly related to a water quality characteristic, the relationship shall be taken
into account as described in sections V.Bthrough 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 anunderstanding of this application of covariance analysis, but computerized versions ofcovariance analysis are much more convenient for analyzing large data sets. If two ormore 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 qualitycharacteristic, 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.

N OTE : Because the best documented relationship is that between hardness and acutetoxicity of metals in fresh water and a loglog relationship fits these data, geometricmeans 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 asPh, 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 inthe 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 orall 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 dataare available to adequately define the relationship between acute toxicity and thewater 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 normalizedacute values of the water quality characteristic. The resulting slopes and 95 percent confidence limits will be identical tothose 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 ifthey were all for the same species and perform a least squares regression of all of the
normalized acute values on the corresponding normalized values of the water quality characteristic to obtain the pooled acute slope, V, and its 95 percent confidence
limits. If all of the normalized data are actually plotted, the line of best fit will go through the point 1,1 in the center of the graph.

H. For each species calculate the geometric mean, W, of the acute toxicity values and the geometric mean, X, of the values of the water quality characteristic. (These were
calculated in sections V.D and V.E of this appendix).

I. For each species, calculate the logarithm, Y, of the SMAV at a selected value, Z, of the water quality characteristic using the equation:

Y=ln W

¥ V(ln X

¥ ln Z)

J. For each species calculate the SMAV at X using the equation:

SMAV=e Y

N OTE : Alternatively, the SMAVs at Z can be obtained by skipping step H above, using the equations in steps I and J to adjust eachacute value individually to Z, and then calculating the geometric mean of the adjustedvalues for each species individually. This alternative procedure allows an examination


### 551 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 Zfrom flow-through tests in which the concentrations of the test material were measured is lower than the FAV at Z, then thegeometric 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.

N OTE : 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 acceptablefor 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, thatare 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 beused, 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 onendpoints 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 examplesof 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. Fordaphnids, data should be obtained and analyzed on survival and young per female. Formysids, 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 throughmost portions of a life cycle. Partial lifecycle tests are allowed with fish species thatrequire 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 thesame 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 nextgeneration. 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


### 552 40 CFR Ch. I (7–1–15 Edition) Pt. 132, App. A

salmonids) exposures of the early life stagesof 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.

N OTE : Results of an early life-stage test are used as predictions of results of life-cycle and partial life-cycle tests with the samespecies. Therefore, when results of a lifecycle or partial life-cycle test are available, results of an early life-stage test with thesame 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 testor 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 unacceptableamount 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.

N OTE : 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. Theamount 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 beconsidered unacceptable even if it is not statistically significant.

G. If the chronic toxicity of the materialto aquatic animals has been shown to be related to a water quality characteristic suchas 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 sectionIII.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, theSMCV 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 SMCVand GMCV for SMAV and GMAV respectively. See section VI.M of this appendix.

N OTE : Section VI.I through VI.L are for use
when chronic values are not available forspecies 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, theacute 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 samestudy, 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.2of 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 tobe the same for all species, but for other materials the ratio seems to increase or decrease as the SMAV increases. Thus theFACR 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 often, 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 than1.0, acclimation has probably occurred during the chronic test. In this situation, because continuous exposure and acclimationcannot be assured to provide adequate protection in field situations, the FACR should be assumed to be two, so that the FCV is


### 553 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 obtainedand 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 ratherthan a FAV, see also section V of this appendix.

M. If the SMCV of a commercially or recreationally important species of theGreat 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 theacute slope. The procedure described in sections VII.B through N of this appendix willusually result in the chronic slope being different from the acute slope.

1. If ACRs are available for enough speciesat enough values of the water quality characteristic to indicate that the ACR appears to be the same for all species and appears tobe independent of the water quality characteristic, calculate the FACR as the geometric mean of the available SMACRs.

2. Calculate the FCV at the selected valueZ 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 qualitycharacteristic, 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. N OTE : Because the best documented relationship is that between hardness and acutetoxicity of metals in fresh water and a loglog relationship fits these data, geometricmeans 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 asPh, 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 areavailable to adequately define the relationship between chronic toxicity and the waterquality characteristic, it might be appropriate to assume that the chronic slope isthe 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 thisappendix, 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 foreach 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


### 554 40 CFR Ch. I (7–1–15 Edition) Pt. 132, App. A

chronic toxicity values on the correspondingnormalized values of the water quality characteristic. The resulting slopes and the 95 percent confidence limits will be identical tothose obtained in section VII.B of this appendix. Now, however, if the data are actuallyplotted, 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 aleast 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 thewater 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)

N OTE : Although it is not necessary, it is
recommended that the same value of the water quality characteristic be used here as was used in section V of this appendix.

K. For each species, calculate a SMCV at Z using the equation:

SMCV=e Q

N OTE : Alternatively, the SMCV at Z can beobtained 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 valuesfor 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 theGreat 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 lowestplant 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 plantsand 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.

N OTE : A test of the toxicity of a metal toa 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 μ g/L should be considered
excessive.

C. The FPV shall be obtained by selectingthe 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 availableconcerning adverse effects on aquatic organisms. The most important of these are dataon cumulative and delayed toxicity, reduction in survival, growth, or reproduction, or any other adverse effect that has been shownto be biologically important. Delayed toxicity is an adverse effect to an organism that results from, and occurs after the end of, itsexposure to one or more test materials. Especially important are data for species for
which no other data are available. Data frombehavioral, biochemical, physiological, microcosm, and field studies might also be available. Data might be available from testsconducted 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 thisappendix), 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 obtainedwith an important species, the test concentrations were measured, and the endpoint was biologically important.


### 555 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 columnto 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 whichan aquatic community can be exposed indefinitely without resulting in an unacceptableeffect. If toxicity is related to a water quality characteristic, the CCC is obtained fromthe 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 possiblywhere 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) μ g/L more than once every three years on the average and if theone-hour average concentration does not exceed (3) μ g/L more than once every three years on the average.
Where:

(1) = insert name of material (2) = insert the CCC (3) = insert the CMC

If the CMC averaging period of one hour orthe 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 theState may specify alternative averaging periods or frequencies. The choice of an alternative averaging period or frequency shall bejustified 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 shallbe 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 recreationallyimportant 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.

M ETHODOLOGY FOR D ERIVING A QUATIC L IFE V ALUES : T IER 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 SecondaryAcute 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 insections I, II, and IV shall be applied to calculation of a SAV.) If all eight minimumdata requirements are satisfied, a Tier I criterion calculation may be possible. In order


### 556 40 CFR Ch. I (7–1–15 Edition) Pt. 132, App. A

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 andreview 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 equalsthree. 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, ifavailable, 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) μ g/Lmore than once every three years on the average and if the one-hour average concentration does not exceed (3) μ g/L more than once every three years on the average.

Where:

(1) = insert name of material (2) = insert the SCC (3) = insert the SMC

As discussed above, States and Tribes havethe 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, anothervalue, either higher or lower, shall be derived consistent with the Guidance in this part.

T ABLE A–1—S ECONDARY A CUTE F ACTORS

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


### 557 Environmental Protection Agency Pt. 132, App. B

A PPENDIX B TO P ART 132—G REAT L AKES W ATER Q UALITY I NITIATIVE

M ETHODOLOGY FOR D ERIVING B IOACCUMULATION F ACTORS

Great Lakes States and Tribes shall adopt provisions consistent with (as protective as) this appendix.

I. Introduction

A. The purpose of this methodology is todescribe 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 alsoused to identify the chemicals that are considered bioaccumulative chemicals of concern (BCCs).

B. Bioaccumulation reflects uptake of a substance by aquatic organisms exposed tothe 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 theconcentration 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 accumulationfactors (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 datafrom different tissues and species can be integrated. In addition, the baseline BAF isbased 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 BAFscan be derived using two of the four methods. Baseline BAFs are derived using eitherfield-measured BAFs or by multiplying laboratory-measured BCFs by a FCM. For inorganic chemicals, BAFs are assumed to equalBCFs (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 ora 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 ambientwater 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 ambientwater 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 asubstance by an organism as a result of uptake from all environmental sources.

Bioaccumulation factor (BAF). The ratio (inL/kg) of a substance’s concentration in tissue of an aquatic organism to its concentration in the ambient water, in situationswhere both the organism and its food are exposed to and the ratio does not change substantially over time.

Bioconcentration. The net accumulation ofa substance by an aquatic organism as a result of uptake directly from the ambientwater through gill membranes or other external body surfaces.

Bioconcentration factor (BCF). The ratio (inL/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 oflipid) of a substance’s lipid-normalized concentration in tissue of an aquatic organismto its organic carbon-normalized concentration in surface sediment, in situations where the ratio does not change substantially overtime, 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 (K OW ).
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


### 558 40 CFR Ch. I (7–1–15 Edition) Pt. 132, App. B

log K OW , 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 beso unique that the BAF cannot be extrapolated to other locations where the criteria and values will apply.

4. For organic chemicals, the percent lipidshall 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 K OW 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 wetweight unless a conversion factor is measured or reliably estimated for the tissue used
in the determination of the BAF.

C. Field-Measured BSAFs. The followingprocedural 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 thereis net deposition of fine sediment and is representative of average surface sediment in the vicinity of the organism. 3. The K OW 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 lipidshall be either measured or reliably estimated for the tissue used in the determination of the BCF.

5. For organic chemicals with log K OW 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 invertebratesmay 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 watershall 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 thetest 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


### 559 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 K OW 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 = K OW

where:
K OW = octanol-water partition coefficient.
F. Octanol-Water Partition Coefficient (K OW ).
1. The value of K OW used for an organicchemical shall be determined by giving priority to the experimental and computational techniques used as follows:

Log K OW <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 K OW >4:

Priority Technique

1 ..................... Slow Stir. 1 ..................... Generator-column. 2 ..................... Reverse-phase liquid chromatography onC18 chromatography packing with extrapolation to zero percent solvent. 3 ..................... Reverse-phase liquid chromatography onC18 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 K OW that seems to be different from
the others should be considered an outlier
and not used. The value of K OW used for an organic chemical shall be the geometric
mean of the available K OW s with highest priority or can be calculated from the arithmetic mean of the available log K OW with the highest priority. Because it is an intermediate value in the derivation of a BAF,
the value used for the K OW of a chemical
should not be rounded to fewer than three significant digits and a value for log K OW 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 bemade in the review and selection of acceptable data. Professional judgment is requiredthroughout the process. A degree of uncertainty is associated with the determination of any BAF, BSAF, BCF or K OW . 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 K OW 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 K OW 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 thetissue 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 fromother organisms. If percent lipid is not reported for the test organisms in the original study, it may be obtained from the author;


### 560 40 CFR Ch. I (7–1–15 Edition) Pt. 132, App. B

or, in the case of a laboratory study, lipiddata 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, C l , of a chemical in tissue is defined using the following equation:



### C C

f l B

l 

### =

Where:

C B = concentration of the organic chemical in the tissue of aquatic biota (either whole organism or specified tissue) ( μ g/ g).

f l = 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 dissolvedorganic 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:

C fd w = freely dissolved concentration of the organic chemical in the ambient water;

C t w = total concentration of the organic chemical in the ambient water; f fd = 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, f fd ,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.
K OW = 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 ofa field-measured BAF or a predicted BAF derived from a BSAF, a FCM shall be used to calculate the baseline BAF for trophic levels3 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 K OW and linear interpolation. A FCM greater than 1.0 applies to most organic chemicals with a log K OW 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 ormammalian 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 BAF T t



### f f fd l 

### − ⎡

⎣ ⎢ ⎢ ⎤

⎦ ⎥ ⎥ ⎡

⎣ ⎢ ⎢ ⎤

⎦ ⎥ ⎥ 1 1

Where:

BAF t T = BAF based on total concentration in
tissue and water.

f l = fraction of the tissue that is lipid.

f fd = 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


### 561 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’’. (K OW ) i = octanol-water partition coefficient
for chemical ‘‘i’’. (K OW )

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:

C t = the lipid-normalized concentration of
the chemical in tissue.

C SOC = the organic carbon-normalized concentration of the chemical in sediment.3. The organic carbon-normalized concentration of a chemical in sediment, C SOC ,shall be calculated using the following equation:



### C C

f SOC S

OC 

### =

Where:

C S = concentration of chemical in sediment ( μ g/g sediment). f OC = fraction of the sediment that is organic
carbon.

4. Predicting BAFs from BSAFs requiresdata from a steady-state (or near steadystate) condition between sediment and ambient water for both a reference chemical ‘‘r’’
with a field-measured BAF l 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 determinationof 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 baselineBAFs 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 fortrophic 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:

BCF t T = BCF based on total concentration in
tissue and water.

f l = fraction of the tissue that is lipid.

f fd = 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
K OW of acceptable quality and a FCM using the following equation:


### 562 40 CFR Ch. I (7–1–15 Edition) Pt. 132, App. B

Baseline BAF=(FCM) (predicted baseline BCF)=(FCM) (K OW )

Where:

FCM=the food-chain multiplier obtained from Table B–1 by linear interpolation for trophic level 3 or 4, as necessary.

K OW = 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 K OW 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 organicchemical 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:


### 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 baselineBAFs for trophic levels 3 and 4 are both assumed to equal the BCF determined for the chemical with fish, i.e., the FCM is assumedto 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 onemeasured 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 FCMwill 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 LakesSystem 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 onemeasured 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 chemicaland 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 FCMwill 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 bothtrophic levels shall be reviewed for consistency with all available data concerning thebioaccumulation, 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 E1022. American Society for Testing and Materials, Philadelphia, PA.

T ABLE B–1—F OOD -C HAIN M ULTIPLIERS FOR T ROPHIC L EVELS 2, 3 & 4

Log K OW 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


### 564 40 CFR Ch. I (7–1–15 Edition) Pt. 132, App. C

T ABLE B–1—F OOD -C HAIN M ULTIPLIERS FOR

T ROPHIC L EVELS 2, 3 & 4—Continued

Log K OW 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

1 The FCMs for trophic level 3 are the geometric mean of the FCMs for sculpin and alewife.

A PPENDIX C TO P ART 132—G REAT L AKES W ATER Q UALITY I NITIATIVE M ETH

ODOLOGIES FOR D EVELOPMENT OF H UMAN H EALTH C RITERIA AND V AL

UES

Great Lakes States and Tribes shall adopt provisions consistent with (as protective as) this appendix. I. I NTRODUCTION

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. Thisincludes effects which are or may become debilitating, harmful or toxic to the normalfunctions 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 thetime 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 thewater, and water-related recreation activities; or consuming fish from the water, andwater-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 effectsare not likely to occur in the human population from lifetime exposure via either: drinking the water, consuming fish from thewater, and water-related recreation activities; or consuming fish from the water, and water-related recreation activities using the Methodologies for the Development ofHuman Health criteria and Values in appendix C of this part.


### 565 Environmental Protection Agency Pt. 132, App. C

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 thesubstance 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 aproperty (activity) of a chemical and a number of descriptors of the chemical. Thesedescriptors 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 exposureto 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 substancein (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 q 1 *, slope factoris the incremental rate of cancer development calculated through use of a linearized multistage model or other appropriatemodel. It is expressed in (mg/kg/day) of exposure to the chemical in question.

Threshold effect. An effect of a substancefor 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 designatedrisk 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 exposureassumptions 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) duringa 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 theamount of toxicity data available for deriving the concentration levels and the quantity and quality of data on bioaccumulation.

II. M INIMUM D ATA R EQUIREMENTS

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 animalstudies which provide, in the case of carcinogens, an adequate weight of evidence of potential human carcinogenicity and, in thecase 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 providedby 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 IIvalues 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 theEPA classification system for chemical carcinogens, which is described in the 1986 EPA Guidelines for Carcinogenic Risk Assessment (U.S. EPA, 1986), or future modifications


### 566 40 CFR Ch. I (7–1–15 Edition) Pt. 132, App. C

thereto, be used in determining whether adequate evidence of potential carcinogenic effects exists. Carcinogens are classified, depending on the weight of evidence, as eitherhuman 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 oftwo conditions exists: (a) there are few pertinent data, or (b) the available studies, whileshowing 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 humancarcinogen, 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 evidenceof 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 multipleexperiments (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 dataon 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, poorsurvival, too few animals, or inadequate reporting; or (c) the studies indicate an increase in the incidence of benign tumorsonly. More specifically, this group can include a wide variety of evidence, e.g., (a) amalignant tumor response in a single wellconducted experiment that does not meet conditions for sufficient evidence, (b) tumor response of marginal statistical significancein studies having inadequate design or reporting, (c) benign but not malignant tumorswith 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 potentialhuman carcinogenic effects sufficient to derive a Tier I HCC shall generally includehuman 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 derivingTier 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 possiblehuman carcinogenic effects sufficient to derive a Tier II human cancer value shall include those possible human carcinogens forwhich there are at a minimum, data sufficient for quantitative risk assessment, butfor which data are inadequate for Tier I criterion development due to a tumor responseof 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 chemicalinteracts directly with DNA), structure activity and metabolism. As with the use ofdata 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 fullrange of possible health effects of a chemical, i.e., acute/subacute, chronic/subchronic and reproductive/developmental effects, inorder to best describe the dose-response relationship of the chemical, and to calculate


### 567 Environmental Protection Agency Pt. 132, App. C

human noncancer criteria and values whichwill 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 epidemiologicstudy 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. Awell-conducted study in animals must demonstrate a dose response relationship involving one or more critical effect(s) biologicallyrelevant 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 ofexposed 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 adverseeffects. For Tier I criteria developed pursuant to this procedure, such a limited studymust 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 greaterin 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 useof 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 morelimited 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 adversehealth 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 aTier 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 studyshall 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 bemore appropriate in some cases for derivation of Tier II values. Use of a LOAEL shouldbe 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 withsatisfying the minimum toxicity data requirements of sections II.A.1 and II.B.1 ofthis appendix, a chemical must have the following minimum bioaccumulation data. Forall 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 wasderived. 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 andII.B.1 of this appendix or the minimum bioaccumulation data requirements of section II.C.1 of this appendix.

III. P RINCIPLES FOR D EVELOPMENT OF T IER I
C RITERIA OR T IER II V ALUES

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 relevantin 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 shallbe considered. Data specific to an environmentally appropriate route of exposure shallbe used. Oral exposure should be used preferentially over dermal and inhalation since,


### 568 40 CFR Ch. I (7–1–15 Edition) Pt. 132, App. C

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 ofone 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 isconsidered most biologically relevant to humans (i.e., responds most like humans) ispreferred 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 sensitivespecies 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 confidencelimit 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 linearmultistage 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 ⁄ 3power. 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. Considerationmust 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 forearly 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 RADshall 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.

q 1 *=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. Criteriafor 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 animaltoxicologic data shall be reviewed and evaluated. To the maximum extent possible, datamost specific to the environmentally relevant route of exposure shall be used. Oral exposure data should be used preferentially over dermal and inhalation since, in mostcases, the exposure routes of greatest concern are fish consumption and drinking water/incidental ingestion. When acceptable


### 569 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 effectat 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 thehighest level tested at which no adverse effects were demonstrated (NOAEL) from studies satisfying the provisions of section II.B ofthis appendix shall be used for criteria calculations. In the absence of a NOAEL, theLOAEL from studies satisfying the provisions of section II.B of this appendix may beused 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 validexperimental 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 anadditional 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 fromanimal 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 thanchronic, 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 uponthe severity and the incidence of the observed adverse effect.

f. An additional UF of between one and tenmay be applied when there are limited effects data or incomplete sub-acute or chronictoxicity 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 aTier 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, asnecessary, 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 criteriaand 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).

WC d = per capita water consumption (both drinking and incidental exposure) for surface waters classified as public water supplies = two liters/day.

—or— WC

r = 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:


### 570 40 CFR Ch. I (7–1–15 Edition) Pt. 132, App. C



### 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).
WC d = per capita water consumption (both drinking and incidental exposure) for surface waters classified as public water supplies=two liters/day.

or WC

r = per capita incidental daily water ingestion for surface waters not used ashuman drinking water sources=0.01 liters/day. FC TL3 = mean consumption of trophic level 3 of regionally caught freshwater fish=0.0036 kg/day.

FC TL4 = mean consumption of trophic level 4 of regionally caught freshwater fish=0.0114 kg/day.

BAF HH TL3 = bioaccumulation factor for trophic level 3 fish, as derived using the BAF methodology in appendix B to part
132.

BAF HH TL4 = bioaccumulation factor for trophic level 4 fish, as derived using the BAF methodology in appendix B to part
132.

3. Noncarcinogens. The Tier I human noncancer criteria or Tier II values shall be calculated as follows:



### 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 exposuredata 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).
WC d = per capita water consumption (both drinking and incidental exposure) for surface waters classified as public water supplies=two liters/day.

or WC

r = per capita incidental daily water ingestion for surface waters not used ashuman drinking water sources=0.01 liters/day.
FC TL3 = mean consumption of trophic level 3fish by regional sport fishers of regionally caught freshwater fish=0.0036 kg/day.
FC TL4 = mean consumption of trophic level 4fish by regional sport fishers of regionally caught freshwater fish=0.0114 kg/day.
BAF HH TL3 = human health bioaccumulation factor for edible portion of trophic level3 fish, as derived using the BAF methodology in appendix B to part 132. BAF HH TL4 = human health bioaccumulation factor for edible portion of trophic level4 fish, as derived using the BAF methodology in appendix B to part 132.

IV. R EFERENCES

A. Howe, R.B., K.S. Crump and C. VanLandingham. 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 Usedin the Preparation of Health Effects Assessment Chapters of the Consent Decree Water Quality Criteria Documents. Available fromU.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.


### 571 Environmental Protection Agency Pt. 132, App. D

A PPENDIX D TO P ART 132—G REAT L AKES W ATER Q UALITY I NITIATIVE M ETHOD

OLOGY FOR THE D EVELOPMENT OF W ILDLIFE C RITERIA

Great Lakes States and Tribes shall adopt provisions consistent with (as protective as) this appendix.

I. I NTRODUCTION

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 basinfrom 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 concernand 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 representativeGreat Lakes basin wildlife species. The wildlife species selected are representative of avian and mammalian species resident in theGreat 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 theequation 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 theGreat 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 isused 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 maybe appropriate to select different representative species which are better examples of species with the highest exposures for the given chemical. The equation presented inthis methodology, however, is still encouraged. In addition, procedure 1 of appendix Fof 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 representativespecies 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 procedure1 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. C ALCULATION OF W ILDLIFE V ALUES FOR T IER I C RITERIA

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 132are 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.

UF A = Uncertainty Factor (UF) for extrapolating toxicity data across species (unitless). A species-specific UF shall beselected and applied to each representative species, consistent with the equation.

UF S = UF for extrapolating from subchronic to chronic exposures (unitless).

UF L = UF for LOAEL to NOAEL extrapolations (unitless). Wt=Average weight in kilograms (kg) for the representative species.


### 572 40 CFR Ch. I (7–1–15 Edition) Pt. 132, App. D

W=Average daily volume of water consumedin liters per day (L/d) by the representative species.
F TLi = Average daily amount of food consumed from trophic level i in kilogramsper day (kg/d) by the representative species.
BAF WL TLi = Bioaccumulation factor (BAF)for wildlife food in trophic level i in liters per kilogram (L/kg), developed using the BAF methodology in appendix B to part 132, Methodology for Development
of Bioaccumulation Factors. For consumption of piscivorous birds by other birds (e.g., herring gull by eagles), theBAF 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 thefocus of concern for wildlife criteria development in the Great Lakes. An analysis of known or estimated exposure components foravian and mammalian wildlife species is presented in the Wildlife TSD. This analysisidentifies 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 avianspecies. 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. P ARAMETERS OF THE E FFECT C OMPONENT

OF THE W ILDLIFE C RITERIA M ETHODOLOGY

A. Definitions. The following definitions provide additional specificity and guidancein the evaluation of toxicity data and the application of this methodology.

Acceptable endpoints. For the purpose ofwildlife 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 directlyrelated to, parameters that influence population dynamics.

Chronic effect. An adverse effect that ismeasured 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 inan 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 avianspecies. In reviewing the toxicity data available which meet the minimum data requirements for each taxonomic class, the following order of preference shall be applied toselect 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, wheresuch studies are of adequate quality. An acceptable field study must be of subchronic orchronic 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 studiesare 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 theappropriateness 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 leastone 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 thanoral may be considered only when an equivalent oral daily dose can be estimated and


### 573 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, preferenceshould be given to studies which assess effects on developmental or reproductive endpoints because, in general, these are moreimportant 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 tobe 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 notpart 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 differentendpoints 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 withina 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 givenspecies, 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 multipliedby 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 thetest 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 fromwhich 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 studiesdone 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 methodspresented in Chapter 4 of the Wildlife Exposure Factors Handbook (U.S. EPA, 1993), should be applied to approximate the neededfeeding 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 (UF L ).
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


### 574 40 CFR Ch. I (7–1–15 Edition) Pt. 132, App. D

available data, and is represented by UF L in the equation expressed in Section II.A of thisappendix. Guidance for selecting an appropriate UF L , based on a review of available wildlife toxicity data, is available in the
Wildlife TSD.

G. Subchronic to Chronic Extrapolations (US S ). 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
UF S in the equation expressed in Section II.A of this appendix. This factor is to be usedwhen assessing highly bioaccumulative substances where toxicokinetic considerations suggest that a bioassay of limited length
underestimates chronic effects. Guidance for selecting an appropriate UF S , based on a review of available wildlife toxicity data, is
available in the Wildlife TSD.

H. Interspecies Extrapolations (UF A ). 1. The
selection of the UF A 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 amongspecies. Guidance for selecting an appropriate UF A , 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 theGreat Lakes Water Quality Initiative Technical Support Document for Human Health Criteria may be useful in determining the appropriate value for UF A
.

2. For the derivation of Tier I criteria, a
UF A shall not be less than one and should not exceed 100, and shall be applied to each of the five representative species, based onexisting data and best professional judgment. The value of UF A may differ for each of the representative species.

3. For Tier I wildlife criteria, the UF A shall be used only for extrapolating toxicity dataacross species within a taxonomic class, except as provided below. The Tier I UF A is notintended for interclass extrapolations because of the poorly defined comparative toxicokinetic and toxicodynamic parameters between mammals and birds. However, an interclass extrapolation employing a UF A may be used for a given chemical if it can be supported by a validated biologically-based dose-response model or by an analysis ofinterclass toxicological data, considering acceptable endpoints, for a chemical analog
that acts under the same mode of toxic action. IV. P ARAMETERS OF THE E XPOSURE C OMPO

NENT OF THE W ILDLIFE C RITERIA M ETHOD

OLOGY

A. Drinking and Feeding Rates of Representative Species. The body weights (Wt), feeding rates (F Tli ), 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 TableD–2 of this appendix. Guidance on incorporating the non-aquatic portion of the baldeagle 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. R EFERENCES

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 DrinkingWater 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.


### 575 Environmental Protection Agency Pt. 132, App. E

Tables to Appendix D to Part 132

T ABLE D–1—T IER I G REAT L AKES W ILDLIFE C RITERIA

Substance Criterion ( μ g/L)

DDT & Metabolites ............................................. 1.1E–5 T ABLE D–1—T IER I G REAT L AKES W ILDLIFE C RITERIA —Continued

Substance Criterion ( μ g/L)

Mercury ............................................................... 1.3E–3 PCBs (total) ........................................................ 7.4E–5 2,3,7,8-TCDD ..................................................... 3.1E–9

T ABLE D–2—E XPOSURE P ARAMETERS FOR THE F IVE R EPRESENTATIVE S PECIES I DENTIFIED FOR P ROTECTION

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.

N OTE : TL3=trophic level three fish; TL4=trophic level four fish; PB=piscivorous birds; Other=non-aquatic birds and mammals.

A PPENDIX E TO P ART 132—G REAT L AKES W ATER Q UALITY I NITIATIVE A NTIDEGRADATION P OLICY

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 allwaters of the Great Lakes System and identify the methods for implementing such a standard. Consistent with 40 CFR 131.12, anacceptable 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 consistentwith sections I, II, III and IV of this appendix, applicable to pollutants identified as
bioaccumulative chemicals of concern (BCCs).

I. A NTIDEGRADATION S TANDARD

This antidegradation standard shall be applicable to any action or activity by any source, point or nonpoint, of pollutants thatis anticipated to result in an increased loading of BCCs to surface waters of the Great Lakes System and for which independentregulatory 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 pollutantor pollutants which are causing the impairment;

B. Where, for any parameter, the quality of the waters exceed levels necessary to supportthe propagation of fish, shellfish, and wildlife and recreation in and on the waters, that water shall be considered high quality forthat 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 orTribe’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 qualityadequate 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 orTribe shall utilize the Antidegradation Implementation Procedures adopted pursuantto 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


### 576 40 CFR Ch. I (7–1–15 Edition) Pt. 132, App. E

waters of national and State parks and wildlife refuges and waters of exceptional recreational or ecological significance, thatwater 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. A NTIDEGRADATION I MPLEMENTATION P ROCEDURES

A. Definitions.
Control Document. Any authorization issued by a State, Tribal or Federal agency to anysource 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 watersexceeds 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 LakeSuperior 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 theSeptember 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 LakeSuperior 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 documentor reviewable action, as a result of any activity including, but not limited to:

(1) Construction of a new regulated facilityor 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, basedon 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 inloadings 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


### 577 Environmental Protection Agency Pt. 132, App. E

to the designated use are achieved in thewater and that any designated use of a downstream water is protected. Where water quality does not support the designated uses of awaterbody or ambient pollutant concentrations exceed water quality criteria applicable to that waterbody, the Director shall notallow 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 theapplication 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 beencompleted pursuant to section III of this appendix and the information thus provided isdetermined 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 regulatedfacility from undertaking any deliberate action, such that there would be an increase in the rate of mass loading of any BCC, unlessan antidegradation demonstration is provided to the Director and approved pursuantto 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 theDirector or any increased loadings. Upon notification, the Director shall require actionsas 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 NationalResource Waters for the purpose of prohibiting the new or increased discharge of LakeSuperior bioaccumulative substances of immediate concern from point sources in these

areas.

2. States and Tribes may designate allwaters of the Lake Superior Basin as Outstanding International Resource Waters forthe 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 theaffected 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 Tribalauthorities, undertaken to alleviate a release into the environment of hazardous substances, pollutants or contaminants whichmay pose an imminent and substantial danger to public health or welfare.

III. A NTIDEGRADATION D EMONSTRATION

Any entity seeking to lower water qualityin 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 antidegradationreviews, 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 thecost 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,


### 578 40 CFR Ch. I (7–1–15 Edition) Pt. 132, App. F

then any entity proposing a new or increaseddischarge 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 pursuantto the CERCLA, as amended, corrective actions pursuant to the Resource Conservationand 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 effectivepollution 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. A NTIDEGRADATION D ECISION

A. Once the Director determines that the information provided by the entity proposingto 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 importantsocial 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 Directormay allow all or part of the proposed lowering to occur as necessary to accommodatethe 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 LakeSuperior 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 ofany 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.

A PPENDIX F TO P ART 132—G REAT L AKES W ATER Q UALITY I NITIATIVE I MPLE

MENTATION P ROCEDURES

P ROCEDURE 1: S ITE

- SPECIFIC M ODIFICATIONS

TO C RITERIA AND V ALUES

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 forapproval. In addition, any site-specific modifications that result in less stringent criteria
must be based on a sound scientific rationaleand 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 jeopardizethe continued existence of such species or result in the destruction or adverse modification of such species’ critical habitat. Morestringent 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 ofthe 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 thecriteria. The phrase ‘‘occur at the site’’ includes the species, genera, families, orders,


### 579 Environmental Protection Agency Pt. 132, App. F

classes, and phyla that: are usually presentat 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; werepresent 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 currentlypresent 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 determinedmerely 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 cannotexist 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 byprocedure 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 calculatedFAV in developing site-specific modified criteria; or,

ii. The site-specific criteria may be calculated using the recalculation procedure forsite-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 maybe developed when a site-specific bioaccumulation factor (BAF) is derived which is lowerthan 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 forwhich criteria are developed, and may be accomplished by using the following recommended method.

i. The methodology presented in appendixD 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. Ifnecessary, 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.

N OTE : 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-specificbasis 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 isfreely 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 weband 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 isdifferent than that used to derive the system-wide BAFs; or


### 580 40 CFR Ch. I (7–1–15 Edition) Pt. 132, App. F

iv. Site-specific field-measured BAFs or biota-sediment accumulation factor (BSAFs)
are determined.

If site-specific BAFs are derived, they shallbe derived using the methodology in appendix B of this part.

c. Any more stringent modifications toprotect 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 Stateproposes 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 StandardsHandbook—Revised. Chapter 3 and Appendices. U.S. Environmental Protection Agency, Office of Water Resource Center (RC–4100), 1200 Pennsylvania Ave., NW., Washington, DC 20960.

P ROCEDURE 2: V ARIANCES FROM W ATER Q UALITY S TANDARDS FOR P OINT S OURCES

The Great Lakes States or Tribes mayadopt water quality standards (WQS) variance procedures and may grant WQS variances for point sources pursuant to such procedures. Variance procedures shall beconsistent 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 permitteerequesting the variance and only to the pollutant or pollutants specified in the variance. A variance does not affect, or requirethe 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 standardshall 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 isless. A State or Tribe shall review, and modify as necessary, WQS variances as part ofeach 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 Stateor 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 theattainment 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:


### 581 Environmental Protection Agency Pt. 132, App. F

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 environmentassociated 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 avariance, and upon making a preliminary decision regarding the variance, the State orTribe 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 thepreliminary 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 onthe 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 Stateor Tribe, the decision shall include all permit conditions needed to implement thoseparts 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 standardsfor 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 ifthe 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 permitall conditions needed to implement the variance as determined in section F of this procedure.

H. Renewal of Variance. A variance may berenewed, 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 informationconcerning its compliance with the conditions incorporated into its permit as part of the original variance pursuant to sections Fand 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 bysection I.4 of this procedure shall be submitted in accordance with the State or TribeMemorandum 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.

P ROCEDURE 3: T OTAL M AXIMUM D AILY L OADS

,

W ASTELOAD A LLOCATIONS FOR P OINT S OURCES , L OAD A LLOCATIONS FOR N ONPOINT S OURCES , W ASTELOAD A LLOCATIONS IN THE A BSENCE OF A TMDL, AND P RELIMINARY W ASTELOAD A LLOCATIONS FOR P URPOSES OF D ETERMINING THE N EED FOR W ATER Q UAL

ITY B ASED E FFLUENT L IMITS

The Great Lakes States and Tribes shalladopt 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


### 582 40 CFR Ch. I (7–1–15 Edition) Pt. 132, App. F

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 theState or Tribe certifies meets the requirements of sections B through F of this procedure and public participation requirementsapplicable 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 underthis procedure may include, but are not limited to, Lakewide Management Plans, Remedial Action Plans, and State Water QualityManagement Plans. Also, any part of an assessment and remediation plan that also satisfies one or more requirements under CleanWater Act (CWA) section 303(d) or implementing regulations may be incorporated byreference 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. Exceptas 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 thelisting 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 maybe 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 qualitystandards will be met is a case-specific determination considering a number of factors including, but not limited to: receiving water characteristics; persistence, behavior andubiquity 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 applicablewater 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) fornonpoint 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 aspecified 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 pollutantloadings if such decreased loadings are technically feasible and are reasonably anticipated to occur within a reasonable time period as a result of implementation of bestmanagement 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, tovarify 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 orEPA-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 thatpollutant 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


### 583 Environmental Protection Agency Pt. 132, App. F

provided by leaving a portion of the loadingcapacity 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 bedescribed. 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 shallreflect, where appropriate and where sufficient data are available, contributions to the
water column from sediments inside and outside of any applicable mixing zones. TMDLsshall 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 wetweather 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 ofdetermining the need for WQBELs under procedure 5 of appendix F. Background loadings may be accounted for in a TMDL through anallocation 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 orpreliminary 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 orresuspension; 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 Tribeshould 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 throughB.9.c.iii below exist, best professional judgment should be used to select the one dataset that most accurately reflects or estimates background concentrations. Pollutant degradation and transport information maybe 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 watercolumn, 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 anew 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


### 584 40 CFR Ch. I (7–1–15 Edition) Pt. 132, App. F

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, andpreliminary 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 GreatLakes 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 Systemfrom 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 newdischarge 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 dischargerthat commences after the date the prohibition in section C.1 takes effect in that Stateor 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 zonesfor 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 November15, 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 procedurewhere 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 GreatLakes 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 EliminationSystem (NPDES) water-quality based effluent limitations; and

ii. The discharger has reduced and will continue to reduce the loading of the BCC forwhich 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 unreasonableeconomic 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 chronicaquatic life, wildlife and human health criteria and values within and at the edge ofthe 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


### 585 Environmental Protection Agency Pt. 132, App. F

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 thepermitting 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 withsections D and E of this procedure, as applicable.

D. Deriving TMDLs, WLAs, and LAs forPoint 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, C3through 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 andnarrative 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 amixing 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 fornonpoint 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 ofa TMDL; and Preliminary WLAs for the Purposes of Determining the Need for WQBELs forGreat Lakes Systems Tributaries and Connecting Channels. This section describes conditions for deriving TMDLs for tributaries and connecting channels of the Great LakesSystem that exhibit appreciable flows relative to their volumes. State and Tribal procedures to derive TMDLs must be consistent with the general conditions listed in sectionB 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, andpreliminary WLAs for purposes of determining reasonable potential under procedure5 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 demonstratethat an alternative stream design flow is appropriate for stream-specific and pollutantspecific conditions. For purposes of calculating a TMDL, WLAs in the absence of aTMDL, 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;


### 586 40 CFR Ch. I (7–1–15 Edition) Pt. 132, App. F

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 calculatedusing dynamic modelling do not need to incorporate the stream design flows specifiedin 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 numericcriterion 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 agiven 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 Fshall 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 otherrelevant 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 authoritygrant 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 destructionor adverse modification of such species’ critical habitat.

5. Chronic Mixing Zones. WLAs and LAs established in a TMDL, WLAs in the absence ofa 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 becalculated using a dilution fraction no greater than 25 percent of the stream design flowunless a mixing zone demonstration pursuant to section F of this procedure is conducted and approved. A demonstration for alarger 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), definethe 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 existenceof 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 orexisting uses of the receiving water or downstream waters;


### 587 Environmental Protection Agency Pt. 132, App. F

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 attractedto 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 demonstrationconsistent 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 otherrelevant 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.

P ROCEDURE 4: A DDITIVITY

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 effectsfrom both the noncarcinogenic and carcinogenic components of chemical mixtures ineffluents. For the chlorinated dibenzo-pdioxins (CDDs) and chlorinateddibenzofurans (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 a2,3,7,8-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 finalproducts 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 whendeveloping waste load allocations under procedure 3, preliminary waste load allocationsfor purposes of determining reasonable potential under procedure 5, and for purposes of establishing effluent quality limits under procedure 5.

T ABLE 1—T OXICITY E QUIVALENCY F ACTORS FOR CDD S AND CDF S

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

T ABLE 2—B IOACCUMULATION E QUIVALENCY F ACTORS FOR CDD S AND CDF S

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


### 588 40 CFR Ch. I (7–1–15 Edition) Pt. 132, App. F

T ABLE 2—B IOACCUMULATION E QUIVALENCY F ACTORS FOR CDD S AND CDF S —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

P ROCEDURE 5: R EASONABLE P OTENTIAL T O

E XCEED W ATER Q UALITY S TANDARDS

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 reasonablepotential to cause, or contribute to an excursion above any Tier I criterion or Tier IIvalue, the permitting authority shall incorporate a water quality-based effluent limitation (WQBEL) in an NPDES permit for thedischarge of that pollutant. When facilityspecific effluent monitoring data are available, the permitting authority shall makethis 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 thepoint 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 tocalculate 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 fordetermining 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 PreliminaryWLAs, 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 thatexhibits 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 ofthis 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 valuesfor the protection of human health and wildlife shall be expressed as monthly limitations;

b. The PELs based upon criteria and valuesfor 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 fromacute 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, thepermitting 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 identifythe 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, andmultiply 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 theeffluent 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


### 589 Environmental Protection Agency Pt. 132, App. F

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 specifythe PEQ as the 95th percentile of the distribution of the projected population of dailyvalues of the facility-specific effluent monitoring data projected using a scientifically
defensible statistical method that accountsfor 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 calculatethe PEQ as the 95th percentile of the distribution of the projected population ofmonthly averages of the facility-specific effluent monitoring data using a scientifically
defensible statistical method that accounts for and captures the long-term variability ofthe monthly average effluent quality, accounts for limitations associated with sparse data sets and, unless otherwise shown by theeffluent 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 accordancewith 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 calculatethe PEQ as the 95th percentile of the distribution of the projected population ofweekly averages of the facility-specific effluent monitoring data using a scientifically
defensible statistical method that accounts for and captures the long-term variability ofthe weekly average effluent quality, accounts for limitations associated with sparse data sets and, unless otherwise shown by theeffluent 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 accordancewith 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 inits effluent, and for which pollutant data sufficient to calculate Tier II values for noncancer human health, acute aquatic life andchronic aquatic life do not exist, the permitting authority shall take the following actions:

a. The permitting authority shall use all available, relevant information, includingQuantitative 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 thisprocedure, which are consistent with the preliminary WLAs developed in accordance with section C.1.b of this procedure.

d. The permitting authority shall comparethe PEQ developed according to the procedures set forth in section B of this procedure to the PELs developed in accordance withsection 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 humanhealth, 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 requiredunder 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 ofdetermining 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 permittingauthority 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;


### 590 40 CFR Ch. I (7–1–15 Edition) Pt. 132, App. F

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, havethe 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 inwater quality-based permitting shall be consistent with this section and section E.

b. The determinations under this sectionand section E shall be made on a pollutantby-pollutant, outfall-by-outfall, basis.

c. This section and section E apply only inthe absence of a TMDL applicable to the discharge prepared by the State or Tribe andapproved 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 sectionE 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 dischargeif 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 reachedthe 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 bodyof water if the permitting authority determines that the pollutant would have reachedthe 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 tohuman 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 theUnited 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 theprocedure 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 potentialfor 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 satisfactionof 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 fromthe 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;


### 591 Environmental Protection Agency Pt. 132, App. F

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 wouldnot 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 inthe 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 dischargewould not cause adverse water quality impacts to occur that would not occur if theidentified intake pollutant were left instream.

c. Upon a finding under section D.3.b ofthis procedure that a pollutant in the discharge does not cause, have the reasonablepotential 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 forthe discharge of an identified intake pollutant to cause or contribute to an excursion above an applicable narrative or numericwater 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 sectionD.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 informationindicates changes in the conditions in section D.3.b of this procedure.

d. Absent a finding under section D.3.b ofthis procedure that a pollutant in the discharge does not cause, have the reasonablepotential 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 ofthis 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 determinedusing 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 ofthis 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.iiithrough 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 pollutantthat are no greater than the mass and concentration of the pollutant identified in thefacility’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 establishedin 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 waterprovided 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 thewater enters the water supplier’s distribution system where the water treatment system removes any of the identified pollutantsfrom the raw water supply. Mass shall be determined by multiplying the concentration of the pollutant determined in accordancewith 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 asthe receiving water (as determined in accordance with section D.2 of this procedure), WQBELs shall be established based upon themost 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 thisprocedure to derive an effluent limitation reflecting the flow-weighted average of eachsource of the pollutant, provided that adequate monitoring to determine compliance


### 592 40 CFR Ch. I (7–1–15 Edition) Pt. 132, App. F

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 tocomply 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 thepoint 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 chronicaquatic 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 arenecessary, information from chemical-specific, whole effluent toxicity and biologicalassessments 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 TierI 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.

P ROCEDURE 6: W HOLE E FFLUENT T OXICITY R EQUIREMENTS

The Great Lakes States and Tribes shalladopt provisions consistent with (as protective as) procedure 6 of appendix F of part 132.

The following definitions apply to this part:

Acute toxic unit (TU

a ). 100/LC 50 where the
LC 50 is expressed as a percent effluent in the
test medium of an acute whole effluent toxicity (WET) test that is statistically orgraphically estimated to be lethal to 50 percent of the test organisms.

Chronic toxic unit (TU

c ). 100/NOEC or 100/
IC 25 , where the NOEC and IC 25 are expressed as a percent effluent in the test medium. Inhibition concentration 25 (IC 25 ). The toxicant concentration that would cause a 25percent reduction in a non-quantal biological measurement for the test population. For example, the IC 25 is the concentration oftoxicant 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 thetest organisms (i.e., the highest concentration of toxicant in which the values for theobserved 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 (TU

a ) measured pursuant totest methods in 40 CFR part 136, or a numeric interpretation of a narrative criterion establishing that 0.3 TU

a measured pursuantto 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 zonethat is sized in accordance with EPA-approved State and Tribal methods.

2. A numeric chronic WET criterion of one chronic toxicity unit (TU

c ) measured pursuant to test methods in 40 CFR part 136, or anumeric interpretation of a narrative criterion establishing that one TU

c 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 ofthe 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, havethe 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:


### 593 Environmental Protection Agency Pt. 132, App. F

a. Shall (except as provided in section C.1.eof 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 tosection C.1.a. of this procedure to ensure attainment of the State’s or Tribe’s chronicWET criteria under receiving water flow conditions described in procedures 3.E.1.a (or where applicable, with procedure 3.E.1.e) forGreat 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 thisprocedure 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) thatchemical-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 WETof 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 thepermitting 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 reopenerclause 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 reasonablepotential 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 WETof an effluent neither is nor may be discharged at a level that will cause, have the reasonable potential to cause, or contributeto an excursion above any numeric WET criterion or narrative criterion within a State’sor 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, havethe 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 speciestested, is used for reasonable potential determinations:

c. Estimating the toxicity values for themissing 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 orTribe’s water quality standards, when effluent-specific information demonstrates that:
(TU

a effluent) (B) (effluent flow/ (Qad+effluent flow))>AC

Where TU

a 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 thesame effluent flow used to calculate the preliminary wasteload allocations (WLAs) for


### 594 40 CFR Ch. I (7–1–15 Edition) Pt. 132, App. F

individual pollutants to meet the acute criteria and values for those pollutants, AC is
the numeric acute WET criterion or numericinterpretation of a narrative criterion established pursuant to section A.1 of this procedure and expressed in TU

a , and Qad is the amount of the receiving water available fordilution 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 andTribal procedures for establishing acute mixing zones in tributaries and connecting channels, or (ii) the EPA-approved State andTribal procedures for establishing acute mixing zones in OWGLs. Where there are lessthan 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 orTribe’s water quality standards, when effluent-specific information demonstrates that: (TU

c effluent) (B) (effluent flow/Qad+effluent flow))>CC

Where TU

c 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 multiplyingfactor 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 TU

c , and Qadis the amount of the receiving water available for dilution calculated using: (i) the design flow(s) for tributaries and connectingchannels 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.


### 595 Environmental Protection Agency Pt. 132, App. FTABLEF6–1—REASONABLEPOTENTIALMULTIPLYINGFACTORS: 95% CONFIDENCELEVEL AND95% PROBABILITYBASISNumber of SamplesCoefficient of variation0.1 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 2.01 ............................................................ 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 64.92 ............................................................ 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 21.13 ............................................................ 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 12.34 ............................................................ 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 8.85 ............................................................ 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 6.96 ............................................................ 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 5.77 ............................................................ 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 4.98 ............................................................ 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 4.39 ............................................................ 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 3.910 .......................................................... 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 3.23.3 3.4 3.611 .......................................................... 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 3.03.1 3.2 3.312 .......................................................... 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 2.82.9 3.0 3.013 .......................................................... 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 2.62.7 2.8 2.914 .......................................................... 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 2.52.6 2.6 2.715 .......................................................... 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 2.42.4 2.5 2.516 .......................................................... 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 2.32.3 2.4 2.417 .......................................................... 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 2.22.2 2.3 2.318 .......................................................... 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 2.12.1 2.2 2.219 .......................................................... 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 2.02.0 2.1 2.120 .......................................................... 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 1.92.0 2.0 2.030 .......................................................... 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 1.51.5 1.5 1.540 .......................................................... 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 1.21.2 1.3 1.350 .......................................................... 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 1.11.1 1.1 1.160 .......................................................... 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 1.01.0 1.0 1.070 .......................................................... 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 0.90.9 0.9 0.980 .......................................................... 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 0.80.8 0.8 0.890 .......................................................... 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 0.80.8 0.8 0.8100 ........................................................ 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 0.80.7 0.7 0.7


### 596 40 CFR Ch. I (7–1–15 Edition) Pt. 132, App. F

P ROCEDURE 7: L OADING L IMITS

The Great Lakes States and Tribes shalladopt provisions consistent with (as protective as) this procedure.

Whenever a water quality-based effluent limitation (WQBEL) is developed, theWQBEL 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.

P ROCEDURE 8: W ATER Q UALITY

- BASED E FFLU

ENT L IMITATIONS B ELOW THE Q UANTIFICA

TION L EVEL

The Great Lakes States and Tribes shalladopt 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 CFRpart 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 quantificationlevel 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 withthe 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. Thepermitting 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 conditionin 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 ofprocedure 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.


### 597 Environmental Protection Agency Pt. 133

P ROCEDURE 9: C OMPLIANCE S CHEDULES

The Great Lakes States and Tribes shalladopt 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 afterMarch 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 ormodified 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 complywith 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 permitshall 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 ormodification, 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 timenecessary 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 modifiedpermit for an existing Great Lakes discharger, the permit may provide a reasonable period of time, up to two years, in whichto provide additional studies necessary to develop a Tier I criterion or to modify the TierII 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 toconduct the specified studies, and the permittee or a third-party demonstrates, through such studies, that a revised limit isappropriate. Such a revised limit shall be incorporated through a permit modification and a reasonable time period, up to fiveyears, shall be allowed for compliance. If incorporated prior to the compliance date ofthe 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 revisedlimit is appropriate, the permitting authority may provide a reasonable additional period of time, not to exceed five years withwhich 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 effluentlimitation 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.

A UTHORITY : Secs. 301(b)(1)(B), 304(d)(1), 304(d)(4), 308, and 501 of the Federal Water


### 598 40 CFR Ch. I (7–1–15 Edition) § 133.100

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.

S OURCE : 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 forsamples collected in a period of 7 consecutive days.

(b) 30-day average. The arithmetic mean of pollutant parameter values ofsamples 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 thepollutant parameter biochemical oxygen demand (BOD).

(e) CBOD 5 . The five day measure of the pollutant parameter carbonaceous biochemical oxygen demand (CBOD 5 ).

(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 qualityachieved 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 averagevalue 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 BOD 5 and SS effluent concentrations consistently achievablethrough 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 theraw 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 a30-day average of a least 65 percent removal of BOD 5
.

(l) SS. The pollutant parameter total suspended solids.

(m) Significantly more stringent limitation means BOD 5 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 BOD 5 and SS), or the percent removal limitations in §§133.102 and 133.105, if such limits would, by themselves, force significantconstruction or other significant capital expenditure.

(n) State Director means the chief administrative officer of any State orinterstate 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—BOD 5 , SS and


### 599 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) BOD 5
.(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 BOD 5 and the levels of the effluent quality specified in paragraphs (a)(1), (a)(2) and (a)(3), the parameter
CBOD 5 may be substituted with the following levels of the CBOD 5 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 tothe 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 capableof 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 designedto 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 BOD 5 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 BOD 5 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 permitteddischarge 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 ofsuch pollutants introduced by the industrial category exceeds 10 percent ofthe design flow or loading of the publicly owned treatment works. When such an adjustment is made, the values
for BOD 5 or SS in §§133.102(a)(2), 133.102(a)(4)(ii), §133.102(b)(2), 133.105(a)(2), 133.105(b)(2), and133.105(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 thispart, 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


### 600 40 CFR Ch. I (7–1–15 Edition) § 133.104

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 BOD 5 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 demonstratesthat: (1) The treatment works is consistently meeting, or will consistently meet, its permit effluent concentrationlimits but its percent removal requirements cannot be met due to less concentrated influent wastewater, (2) tomeet the percent removal requirements, the treatment works would have to achieve significantly morestringent 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 inflowplus 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 demonstratesthat: (1) The treatment works is consistently meeting, or will consistently meet, its permit effluent concentrationlimits, 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 theadditional 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 thedry 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 inaccordance 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 BOD 5 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 byfacilities eligible for treatment equivalent to secondary treatment(§133.101(g)) in terms of the parameters—BOD 5 , SS and pH. All requirements for the specified parameters inparagraphs (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) BOD 5 . (1) The 30-day average shall not exceed 45 mg/l.

(2) The 7-day average shall not exceed 65 mg/l.


### 601 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 thissection, 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 BOD 5 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) CBOD 5 limitations:(1) Where data are available to establish CBOD 5 limitations for a treatment works subject to this section, theNPDES permitting authority may substitute the parameter CBOD 5 for the parameter BOD 5 In §§133.105(a)(1),133.105(a)(2) and 133.105(a)(3), on a caseby-case basis provided that the levels
of CBOD 5 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 CBOD 5 may be used for effluent quality limitations established under paragraph (d) of this section.
Where concurrent BOD effluent data are available, they must be submittedwith 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 determinesthat the 30-day average and 7-day average BOD 5 and SS effluent values thatcould 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 treatmentworks to achieve more stringent limitations, or

(2) For new facilities, the permitting authority determines that the 30-day average and 7-day average BOD 5 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.

A UTHORITY : 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).


### 602 40 CFR Ch. I (7–1–15 Edition) § 135.1

Subpart B, issued under Sec. 1449, Safe Drinking Water Act (42 U.S.C. 300j–8).

S OURCE : 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 CleanWater Act (hereinafter the Act) authorizes any person or persons havingan 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 Actprovides 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 servea 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 theproposed consent judgment by the Attorney General and the Administrator.

(b) The purpose of this subpart is toprescribe 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 proposedconsent 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 underthe 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, theRegional Administrator of the Environmental Protection Agency for theregion in which such violation is alleged to have occurred, and the chiefadministrative 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 shallbe 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 haveoccurred, the Administrator of the Environmental Protection Agency, andthe Regional Administrator of the Environmental Protection Agency for theregion in which such violation is alleged to have occurred.

(3) If the alleged violator is a Federalagency, service of notice shall be accomplished by certified mail addressed to, or by personal service upon, thehead 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 violationis 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 certifiedmail addressed to, or by personal service upon, the Administrator, Environmental Protection Agency, Washington, DC 20460. A copy of such noticeshall be mailed to the Attorney General of the United States.

(c) Notice given in accordance with the provisions of this subpart shall be


### 603 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 respectthereto, 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 Actwhich 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 shallstate 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 acopy of a complaint filed against an alleged violator under section 505(a)(1) of
the Act to the Administrator of the Environmental Protection Agency, theRegional 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 shallbe 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 dateon 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 lawand 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 citizenenforcement 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 partiesto the lawsuit, upon the Administrator, Environmental Protection Agency, Washington, DC 20460, and theAttorney General, Department of Justice, Citizen Suit Coordinator, Room2615, Washington, DC 20530. The plaintiff shall serve the Administrator andthe Attorney General by personal service or by certified mail (return receipt requested.) The plaintiff shall also mail a copy of a proposed consent judgmentat 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 partyfile or lodge a proposed consent judgment with the court, the plaintiff shallnotify the court of the statutory requirement that the consent judgment shall not be entered prior to 45 daysfollowing 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 theproposed 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 theproposed consent judgment, the plaintiff shall so notify the court, but upon receiving such information regarding the dates of service of the proposed


### 604 40 CFR Ch. I (7–1–15 Edition) § 135.10

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

S OURCE : 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 toenforce the Act against an alleged violator of any requirements prescribed byor under the Act, or against the Administrator for failure to perform any duty which is not discretionary underthe 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 certifiedmail, return receipt requested, addressed to, or by personal service upon, such individual or corporation. If apublic 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, theRegional Administrator of the Environmental Protection Agency for theregion 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 bycertified 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 shallbe accomplished by certified mail, return receipt requested, addressed to, or by personal service upon, the head of such agency. A copy of the notice shallbe sent by certified mail, return receipt requested, to the Administratorof the Environmental Protection Agency, the Regional Administrator of the Environmental Protection Agency forthe 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 Federalagency, 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 Administratorof the Environmental Protection Agency, the Regional Administrator of the Environmental Protection Agency forthe region in which the violation is alleged to have occurred, the Attorney General of the United States, the chiefadministrative officer of the responsible state agency (if any), and the Attorney General for the State in whichthe violation is alleged to have occurred.

(b) Service of notice of intent to file suit pursuant to section 1449(a)(2) ofthe Act shall be accomplished by certified mail, return receipt requested, addressed to, or by personal serviceupon, 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 dateof receipt of service, if served personally. If service was accomplished by


### 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 prescribedby or under the Act shall include sufficient information to permit the recipient to identify the specific requirementalleged 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 Actwhich 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 actiontaken 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 theplaintiff has given each of the appropriate parties sixty days notice of intent to file such an action. Actions concerning injection wells disposing ofhazardous waste which allege jurisdiction solely under section 7002(c) of the Resource Conservation and RecoveryAct may proceed immediately after notice to the appropriate parties.