[Title 40 CFR ]
[Code of Federal Regulations (annual edition) - July 1, 2019 Edition]
[From the U.S. Government Publishing Office]
[[Page i]]
Title 40
Protection of Environment
________________________
Parts 100 to 135
Revised as of July 1, 2019
Containing a codification of documents of general
applicability and future effect
As of July 1, 2019
Published by the Office of the Federal Register
National Archives and Records Administration as a
Special Edition of the Federal Register
[[Page ii]]
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[[Page iii]]
Table of Contents
Page
Explanation................................................. v
Title 40:
Chapter I--Environmental Protection Agency
(Continued) 3
Finding Aids:
Table of CFR Titles and Chapters........................ 697
Alphabetical List of Agencies Appearing in the CFR...... 717
List of CFR Sections Affected........................... 727
[[Page iv]]
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Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 40 CFR 104.1 refers
to title 40, part 104,
section 1.
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[[Page v]]
EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
into 50 titles which represent broad areas subject to Federal
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name of the issuing agency. Each chapter is further subdivided into
parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
volume.
LEGAL STATUS
The contents of the Federal Register are required to be judicially
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HOW TO USE THE CODE OF FEDERAL REGULATIONS
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OMB CONTROL NUMBERS
The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires
Federal agencies to display an OMB control number with their information
collection request.
[[Page vi]]
Many agencies have begun publishing numerous OMB control numbers as
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``[RESERVED]'' TERMINOLOGY
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INCORPORATION BY REFERENCE
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This material, like any other properly issued regulation, has the force
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approval is based are:
(a) The incorporation will substantially reduce the volume of
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(b) The matter incorporated is in fact available to the extent
necessary to afford fairness and uniformity in the administrative
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(c) The incorporating document is drafted and submitted for
publication in accordance with 1 CFR part 51.
What if the material incorporated by reference cannot be found? If
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alphabetical list of agencies publishing in the CFR are also included in
this volume.
[[Page vii]]
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Oliver A. Potts,
Director,
Office of the Federal Register
July 1, 2019
[[Page ix]]
THIS TITLE
Title 40--Protection of Environment is composed of thirty-seven
volumes. The parts in these volumes are arranged in the following order:
Parts 1-49, parts 50-51, part 52 (52.01-52.1018), part 52 (52.1019-
52.2019), part 52 (52.2020-end of part 52), parts 53-59, part 60 (60.1-
60.499), part 60 (60.500-end of part 60, sections), part 60
(Appendices), parts 61-62, part 63 (63.1-63.599), part 63 (63.600-
63.1199), part 63 (63.1200-63.1439), part 63 (63.1440-63.6175), part 63
(63.6580-63.8830), part 63 (63.8980-end of part 63), parts 64-71, parts
72-79, part 80, part 81, parts 82-86, parts 87-95, parts 96-99, parts
100-135, parts 136-149, parts 150-189, parts 190-259, parts 260-265,
parts 266-299, parts 300-399, parts 400-424, parts 425-699, parts 700-
722, parts 723-789, parts 790-999, parts 1000-1059, and part 1060 to
end. The contents of these volumes represent all current regulations
codified under this title of the CFR as of July 1, 2019.
Chapter I--Environmental Protection Agency appears in all thirty-
seven volumes. OMB control numbers for title 40 appear in Sec. 9.1 of
this chapter.
Chapters IV-VIII--Regulations issued by the Environmental Protection
Agency and Department of Justice, Council on Environmental Quality,
Chemical Safety and Hazard Investigation Board, Environmental Protection
Agency and Department of Defense; Uniform National Discharge Standards
for Vessels of the Armed Forces, and the Gulf Coast Ecosystem
Restoration Council appear in volume thirty seven.
For this volume, Michele Bugenhagen was Chief Editor. The Code of
Federal Regulations publication program is under the direction of John
Hyrum Martinez, assisted by Stephen J. Frattini.
[[Page 1]]
TITLE 40--PROTECTION OF ENVIRONMENT
(This book contains parts 100 to 135)
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Part
chapter i--Environmental Protection Agency (Continued)...... 104
[[Page 3]]
CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)
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Editorial Note: Nomenclature changes to chapter I appear at 65 FR
47324, 47325, Aug. 2, 2000; 66 FR 34375, 34376, June 28, 2001.
SUBCHAPTER D--WATER PROGRAMS
Part Page
100-103
[Reserved]
104 Public hearings on effluent standards for
toxic pollutants........................ 5
105 Recognition awards under the Clean Water Act 11
108 Employee protection hearings................ 14
109 Criteria for State, local and regional oil
removal contingency plans............... 15
110 Discharge of oil............................ 17
112 Oil pollution prevention.................... 22
113 Liability limits for small onshore storage
facilities.............................. 138
116 Designation of hazardous substances......... 139
117 Determination of reportable quantities for
hazardous substances.................... 153
121 State certification of activities requiring
a Federal license or permit............. 161
122 EPA administered permit programs: The
national pollutant discharge elimination
system.................................. 166
123 State program requirements.................. 297
124 Procedures for decisionmaking............... 326
125 Criteria and standards for the national
pollutant discharge elimination system.. 365
127 NPDES Electronic reporting.................. 434
129 Toxic pollutant effluent standards.......... 497
130 Water quality planning and management....... 508
131 Water quality standards..................... 524
132 Water quality guidance for the Great Lakes
System.................................. 621
133 Secondary treatment regulation.............. 685
135 Prior notice of citizen suits............... 689
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SUBCHAPTER D_WATER PROGRAMS
PARTS 100 103 [RESERVED]
PART 104_PUBLIC HEARINGS ON EFFLUENT STANDARDS FOR TOXIC POLLUTANTS
--Table of Contents
Sec.
104.1 Applicability.
104.2 Definitions.
104.3 Notice of hearing; objection; public comment.
104.4 Statement of basis and purpose.
104.5 Docket and record.
104.6 Designation of Presiding Officer.
104.7 Powers of Presiding Officer.
104.8 Prehearing conferences.
104.9 Admission of evidence.
104.10 Hearing procedures.
104.11 Briefs and findings of fact.
104.12 Certification of record.
104.13 Interlocutory and post-hearing review of rulings of the Presiding
Officer; motions.
104.14 Tentative and final decision by the Administrator.
104.15 Promulgation of standards.
104.16 Filing and time.
Authority: Secs. 501 and 307(a) of the Federal Water Pollution
Control Act, as amended (33 U.S.C. 1251 et seq., Pub. L. 92-500, 86
Stat. 816).
Source: 41 FR 17902, Apr. 29, 1976, unless otherwise noted.
Sec. 104.1 Applicability.
This part shall be applicable to hearings required by statute to be
held in connection with the establishment of toxic pollutant effluent
standards under section 307(a) of the Act.
Sec. 104.2 Definitions.
As used in this part, the term:
(a) Act means the Federal Water Pollution Control Act, as amended,
33 U.S.C. 1251 et seq., Public Law 92-500, 86 Stat. 816.
(b) Administrator means the Administrator of the Environmental
Protection Agency, or any employee of the Agency to whom the
Administrator may by order delegate his authority to carry out his
functions under section 307(a) of the Act, or any person who shall by
operation of law be authorized to carry out such functions.
(c) Agency means the Environmental Protection Agency.
(d) Hearing Clerk means the Hearing Clerk, U.S. Environmental
Protection Agency, 401 M Street SW., Washington, DC 20460.
(e) Party means the Environmental Protection Agency as the proponent
of an effluent standard or standards, and any person who files an
objection pursuant to Sec. 104.3 hereof.
(f) Person means an individual, corporation, partnership,
association, state, municipality or other political subdivision of a
state, or any interstate body.
(g) Effluent standard means any effluent standard or limitation,
which may include a prohibition of any discharge, established or
proposed to be established for any toxic pollutant under section 307(a)
of the Act.
(h) Presiding Officer means the Chief Administrative Law Judge of
the Agency or a person designated by the Chief Administrative Law Judge
or by the Administrator to preside at a hearing under this part, in
accordance with Sec. 104.6 hereof.
Sec. 104.3 Notice of hearing; objection; public comment.
(a) Notice of hearing. Whenever the Administrator publishes any
proposed effluent standard, he shall simultaneously publish a notice of
a public hearing to be held within thirty days following the date of
publication of the proposed standard. Any person who has any objection
to a proposed standard may file with the hearing clerk a concise
statement of any such objection. No person may participate in the
hearing on the proposed toxic pollutant effluent standards unless the
hearing clerk has received within 25 days of the publication of the
notice of the proposed standards a statement of objection as herein
described. In exceptional circumstances and for good cause shown the
Presiding Officer may allow an objection to be filed after the filing
deadline prescribed in the preceding sentence, which good cause must
include at a minimum lack of actual notice on the part of the objector
or any
[[Page 6]]
representative of such objector of the proposed standards despite his
exercise of due diligence, so long as such later filing will not cause
undue delay in the proceedings or prejudice to any of the parties.
(b) Objections. Any objection to a proposed standard which is filed
pursuant to paragraph (a) of this section shall meet the following
requirements:
(1) It shall be filed in triplicate with the hearing clerk within
the time prescribed in paragraph (a) of this section;
(2) It shall state concisely and with particularity each portion of
the proposed standard to which objection is taken; to the greatest
extent feasible it shall state the basis for such objection;
(3) To the greatest extent feasible it shall (i) state specifically
the objector's proposed modification to any such standard proposed by
the Agency to which objection is taken, (ii) set forth the reasons why
such modification is sought, and (iii) identify and describe the
scientific or other basis for such proposed modification, including
reference to any pertinent scientific data or authority in support
thereof.
Any objection which fails to comply with the foregoing provisions shall
not be accepted for filing. The Presiding Officer shall promptly notify
any person whose objection is not accepted for any of the reasons set
forth in this section, stating the reasons therefor.
(c) Data in support of objection or modification. In the event that
the time prescribed for filing objections pursuant to paragraphs (a) and
(b) of this section is insufficient to permit an objecting party to
fully set forth with such objection the basis therefor together with the
information and data specified in paragraph (b)(3) of this section, he
may so state at the time of the filing of such objection, and file a
more complete statement of such basis, information, and data
(hereinafter referred to as ``supplemental data'') within the time
prescribed by this paragraph (c). The supplemental data herein described
shall be filed not later than 40 days following publication of the
proposed effluent standards.
(d) Public comment. The notice required under paragraph (a) of this
section shall also provide for the submission to the Agency of written
comments on the proposed rulemaking by interested persons not filing
objections pursuant to this section as hereinabove described, and hence
not participating in the hearing as parties. The notice shall fix a time
deadline for the submission of such comments which shall be not later
than the date set for commencement of the hearing. Such comments shall
be received in evidence at the commencement of the hearing. The
Administrator in making any decision based upon the record shall take
into account the unavailability of cross-examination in determining the
weight to be accorded such comments.
(e) Promulgation in absence of objection. If no objection is filed
pursuant to this section, then the Administrator shall promulgate the
final standards on the basis of the Agency's statement of basis and
purpose and any public comments received pursuant to paragraph (d) of
this section.
Sec. 104.4 Statement of basis and purpose.
Whenever the Administrator publishes a proposed effluent standard,
the notice thereof published in the Federal Register shall include a
statement of the basis and purpose of the standard or a summary thereof.
This statement shall include:
(a) The purpose of the proposed standard;
(b) An explanation of how the proposed standard was derived;
(c) Scientific and technical data and studies supporting the
proposed standard or references thereto if the materials are published
or otherwise readily available; and
(d) Such other information as may be reasonably required to set
forth fully the basis of the standard.
Where the notice of the proposed rulemaking summarizes the full
statement of basis and purpose, or incorporates documents by reference,
the documents thus summarized or incorporated by reference shall
thereupon be made available by the Agency for inspection and copying by
any interested person.
Sec. 104.5 Docket and record.
Whenever the Administrator publishes a notice of hearing under this
part, the hearing clerk shall promptly establish a docket for the
hearing. The
[[Page 7]]
docket shall include all written objections filed by any party, any
public comments received pursuant to Sec. 104.3(d), a verbatim
transcript of the hearing, the statement of basis and purpose required
by Sec. 104.4, and any supporting documents referred to therein, and
other documents of exhibits that may be received in evidence or marked
for identification by or at the direction of the Presiding Officer, or
filed by any party in connection with the hearing. Copies of documents
in the docket shall be available to any person upon payment to the
Agency of such charges as the Agency may prescribe to cover the costs of
duplication. The materials contained in the docket shall constitute the
record.
Sec. 104.6 Designation of Presiding Officer.
The Chief Administrative Law Judge of the Agency may preside
personally at any hearing under this part, or he may designate another
Administrative Law Judge as Presiding Officer for the hearing. In the
event of the unavailability of any such Administrative Law Judge, the
Administrator may designate a Presiding Officer. No person who has any
personal pecuniary interest in the outcome of a proceeding under this
part, or who has participated in the development or enforcement of any
standard or proposed standard at issue in a proceeding hereunder, shall
serve as Presiding Officer in such proceeding.
Sec. 104.7 Powers of Presiding Officer.
The Presiding Officer shall have the duty to conduct a fair hearing
within the time constraints imposed by section 307(a) of the Act. He
shall take all necessary action to avoid delay and to maintain order. He
shall have all powers necessary to these ends, including but not limited
to the power to:
(a) Rule upon motions and requests;
(b) Change the time and place of the hearing, and adjourn the
hearing from time to time or from place to place;
(c) Examine and cross-examine witnesses;
(d) Admit or exclude evidence; and
(e) Require any part or all of the evidence to be submitted in
writing and by a certain date.
Sec. 104.8 Prehearing conferences.
Prehearing conferences are encouraged for the purposes of
simplification of issues, identification and scheduling of evidence and
witnesses, the establishment of an orderly framework for the
proceedings, the expediting of the hearing, and such other purposes of a
similar nature as may be appropriate.
(a) The Presiding Officer on his own motion may, and at the request
of any party made within 20 days of the proposal of standards hereunder
shall, direct all parties to appear at a specified time and place for an
initial hearing session in the nature of a prehearing conference.
Matters taken up at the conference may include, without limitation:
(1) Consideration and simplification of any issues of law or fact;
(2) Identification, advance submission, marking for identification,
consideration of any objections to admission, and admission of
documentary evidence;
(3) Possible stipulations of fact;
(4) The identification of each witness expected to be called by each
party, and the nature and substance of his expected testimony;
(5) Scheduling of witnesses where practicable, and limitation of the
number of witnesses where appropriate in order to avoid delay or
repetition;
(6) If desirable, the segregation of the hearing into separate
segments for different provisions of the proposed effluent standards and
the establishment of separate service lists;
(7) Encouragement of objecting parties to agree upon and designate
lead counsel for objectors with common interests so as to avoid
repetitious questioning of witnesses.
(b) The Presiding Officer may, following a prehearing conference,
issue an order setting forth the agreements reached by the parties or
representatives, the schedule of witnesses, and a statement of issues
for the hearing. In addition such order may direct the parties to file
and serve copies of documents or materials, file and serve lists of
witnesses which may include a short summary of the expected testimony of
each and, in the case of an expert witness, his curriculum vitae, and
may contain such other directions as may
[[Page 8]]
be appropriate to facilitate the proceedings.
Sec. 104.9 Admission of evidence.
(a) Where the Presiding Officer has directed identification of
witnesses and production of documentation evidence by a certain date,
the Presiding Officer may exclude any such evidence, or refuse to allow
any witness to testify, when the witness was not identified or the
document was not served by the time set by the Presiding Officer. Any
such direction with respect to a party's case in chief shall not
preclude the use of such evidence or testimony on rebuttal or response,
or upon a showing satisfactory to the Presiding Officer that good cause
existed for failure to serve testimony or a document or identify a
witness by the time required. The Presiding Officer may require direct
testimony to be in writing under oath and served by a certain date, and
may exclude testimony not so served.
(b) At the first prehearing conference, or at another time before
the beginning of the taking of oral testimony to be set by the Presiding
Officer, the statement of basis and purpose, together with any
publications or reference materials cited therein, except where excluded
by stipulation, shall be received in evidence.
(c) The Presiding Officer may exclude evidence which is immaterial,
irrelevant, unduly repetitious or cumulative, or would involve undue
delay, or which, if hearsay, is not of the sort upon which responsible
persons are accustomed to rely.
(d) If relevant and material evidence is contained in a report or
document containing immaterial or irrelevant matter, such immaterial or
irrelevant matter may be excluded.
(e) Whenever written testimony or a document or object is excluded
from evidence by the Presiding Officer, it shall at the request of the
proponent be marked for identification. Where oral testimony is
permitted by the Presiding Officer, but the Presiding Officer excludes
particular oral testimony, the party offering such testimony may make a
brief offer of proof.
(f) Any relevant and material documentary evidence, including but
not limited to affidavits, published articles, and official documents,
regardless of the availability of the affiant or author for cross-
examination, may be admitted in evidence, subject to the provisions of
paragraphs (a), (c), and (d) of this section. The availability or
nonavailability of cross-examination shall be considered as affecting
the weight to be accorded such evidence in any decision based upon the
record.
(g) Official notice may be taken by the Presiding Officer or the
Administrator of any matter which could be judicially noticed in the
United States District Courts, and of other facts within the specialized
knowledge and experience of the Agency. Opposing parties shall be given
adequate opportunity to show the contrary.
Sec. 104.10 Hearing procedures.
(a) Following the admission in evidence of the materials described
in Sec. 104.9(b), the Agency shall have the right at the commencement
of the hearing to supplement that evidence or to introduce additional
relevant evidence. Thereafter the evidence of each objector shall be
presented in support of its objection and any proposed modification. The
Agency staff shall then be given an opportunity to rebut or respond to
the objectors' presentation, including at its option the introduction of
evidence which tends to support a standard or standards other than as
set forth in the Agency's own initially proposed standards. In the event
that evidence which tends to support such other standard or standards is
offered and received in evidence, then the objectors may thereafter
rebut or respond to any such new evidence.
(b) The burden of proof as to any modification of any standard
proposed by the Agency shall be upon the party who advocates such
modification to show that the proposed modification is justified based
upon a preponderance of the evidence.
(c) Where necessary in order to prevent undue prolongation of the
hearing, or to comply with time limitations set forth in the Act, the
Presiding Officer may limit the number of witnesses who may testify, and
the scope and extent of cross-examination.
[[Page 9]]
(d) A verbatim transcript of the hearing shall be maintained and
shall constitute a part of the record.
(e) If a party objects to the admission or rejection of any evidence
or to any other ruling of the Presiding Officer during the hearing, he
shall state briefly the grounds of such objection. With respect to any
ruling on evidence, it shall not be necessary for any party to claim an
exception in order to preserve any right of subsequent review.
(f) Any party may at any time withdraw his objection to a proposed
effluent standard.
Sec. 104.11 Briefs and findings of fact.
At the conclusion of the hearing, the Presiding Officer shall set a
schedule for the submission by the parties of briefs and proposed
findings of fact and conclusions. In establishing the aforesaid time
schedule, the Presiding Officer shall consider the time constraints
placed upon the parties and the Administrator by the statutory
deadlines.
Sec. 104.12 Certification of record.
As soon as possible after the hearing, the Presiding Officer shall
transmit to the hearing clerk the transcript of the testimony and
exhibits introduced in the hearing. The Presiding Officer shall attach
to the original transcript his certificate stating that, to the best of
his knowledge and belief, the transcript is a true transcript of the
testimony given at the hearing except in such particulars as he shall
specify, and that the exhibits transmitted are all the exhibits as
introduced at the hearing with such exceptions as he shall specify.
Sec. 104.13 Interlocutory and post-hearing review of rulings of
the Presiding Officer; motions.
(a) The Presiding Officer may certify a ruling for interlocutory
review by the Administrator where a party so requests and the Presiding
Officer concludes that (1) the ruling from which review is sought
involves an important question as to which there is substantial ground
for difference of opinion, and (2) either (i) a subsequent reversal of
his ruling would be likely to result in substantial delay or expense if
left to the conclusion of the proceedings, or (ii) a ruling on the
question by the Administrator would be of material assistance in
expediting the hearing. The certificate shall be in writing and shall
specify the material relevant to the ruling certified. If the
Administrator determines that interlocutory review is not warranted, he
may decline to consider the ruling which has been certified.
(b) Where the Presiding Officer declines to certify a ruling the
party who had requested certification may apply to the Administrator for
interlocutory review, or the Administrator may on his own motion direct
that any matter be submitted to him for review, subject to the standards
for review set forth in paragraph (a) of this section. An application
for review shall be in writing and shall briefly state the grounds
relied on. If the Administrator takes no action with respect to such
application for interlocutory review within 15 days of its filing, such
application shall be deemed to have been denied.
(c) Unless otherwise ordered by the Presiding Officer or the
Administrator, the hearing shall continue pending consideration by the
Administrator of any ruling or request for interlocutory review.
(d) Unless otherwise ordered by the Presiding Officer or the
Administrator, briefs in response to any application for interlocutory
review may be filed by any party within five days of the filing of the
application for review.
(e) Failure to request or obtain interlocutory review does not waive
the rights of any party to complain of a ruling following completion of
the hearing. Within five days following the close of a hearing under
this part, any party may apply to the Administrator for post-hearing
review of any procedural ruling, or any ruling made by the Presiding
Officer concerning the admission or exclusion of evidence to which
timely objection was made. Within seven days following the filing of any
such application any other party may file a brief in response thereto.
(f) If the Administrator on review under paragraph (e) of this
section determines that evidence was improperly excluded, he may order
its admission
[[Page 10]]
without remand for further proceedings, or may remand with such
instructions as he deems appropriate concerning cross-examination, or
opportunity for any party to submit further evidence, with respect to
such evidence as he directs should be admitted. In making his
determination whether to remand, the Administrator shall consider
whether the statutory time restraints permit a remand, and whether it
would be constructive to allow cross-examination or further evidence
with respect to the newly admitted evidence. If evidence is admitted
without cross-examination, the Administrator shall consider the lack of
opportunity for cross-examination in determining the weight to be given
such evidence.
(g) Motions shall be brief, in writing, and may be filed at any time
following the publication of the proposed effluent standards, unless
otherwise ordered by the Presiding Officer or the Administrator. Unless
otherwise ordered or provided in these rules, responses to motions may
be filed within seven days of the actual filing of the motion with the
hearing clerk.
Sec. 104.14 Tentative and final decision by the Administrator.
(a) As soon as practicable following the certification of the record
and the filing by the parties of briefs and proposed findings of fact
and conclusions under Sec. 104.11, the Administrator, with such staff
assistance as he deems necessary and appropriate, shall review the
entire record and prepare and file a tentative decision based thereon.
The tentative decision shall include findings of fact and conclusions,
and shall be filed with the hearing clerk who shall at once transmit a
copy thereof to each party who participated at the hearing, or his
attorney or other representative.
(b) Upon filing of the tentative decision, the Administrator may
allow a reasonable time for the parties to file with him any exceptions
to the tenative decision, a brief in support of such exceptions
containing appropriate references to the record, and any proposed
changes in the tentative decision. Such materials shall, upon
submission, become part of the record. As soon as practicable after the
filing thereof the Administrator shall prepare and file a final
decision, copies of which shall be transmitted to the parties or their
representatives in the manner prescribed in paragraph (a) of this
section.
(c) In the event that the Administrator determines that due and
timely execution of his functions, including compliance with time
limitations established by law, imperatively and unavoidably so
requires, he may omit the preparation and filing of the tentative
decision and related procedures set forth in paragraph (b) of this
section, and shall instead prepare and file a final decision, copies of
which shall be transmitted to the parties or their representatives in
the manner prescribed in paragraph (a) of this section.
(d) Any decision rendered by the Administrator pursuant to this
section shall include a statement of his findings and conclusions, and
the reasons and basis therefor, and shall indicate the toxic pollutant
effluent standard or standards which the Administrator is promulgating
or intends to promulgate based thereon.
Sec. 104.15 Promulgation of standards.
Upon consideration of the record, at the time of his final decision
the Administrator shall determine whether the proposed effluent standard
or standards should be promulgated as proposed, or whether any
modification thereof is justified based upon a proponderance of the
evidence adduced at the hearing, regardless of whether or not such
modification was actually proposed by any objecting party. If he
determines that a modification is not justified, he shall promulgate the
standard or standards as proposed. If he determines that a modification
is justified, he shall promulgate a standard or standards as so
modified.
Sec. 104.16 Filing and time.
(a) All documents or papers required or authorized by the foregoing
provisions of this part including, but not limited to, motions,
applications for review, and briefs, shall be filed in duplicate with
the hearing clerk, except as otherwise expressly provided in these
rules. Any document or paper so required or authorized to be filed with
[[Page 11]]
the hearing clerk, if it is filed during the course of the hearing,
shall be also filed with the Presiding Officer. A copy of each document
or paper filed by any party with the Presiding Officer, with the hearing
clerk, or with the Administrator shall be served upon all other parties,
except to the extent that the list of parties to be so served may be
modified by order of the Presiding Officer, and each such document or
paper shall be accompanied by a certificate of such service.
(b) A party may be represented in any proceeding under this part by
an attorney or other authorized representative. When any document or
paper is required under these rules to be served upon a party such
service shall be made upon such attorney or other representative.
(c) Except where these rules or an order of the Presiding Officer
require receipt of a document by a certain date, any document or paper
required or authorized to be filed by this part shall be deemed to be
filed when postmarked, or in the case of papers delivered other than by
mail, when received by the hearing clerk.
(d) Sundays and legal holidays shall be included in computing the
time allowed for the filing of any document or paper, provided, that
when such time expires on a Sunday or legal holiday, such period shall
be extended to include the next following business day.
PART 105_RECOGNITION AWARDS UNDER THE CLEAN WATER ACT
--Table of Contents
Sec.
General
105.1 Background.
105.2 Definitions.
105.3 Title.
Eligibility Requirements
105.4 What are the requirements for the Awards Program?
105.5 Who is eligible to win an award?
105.6 What are the Awards Program categories for which I may be
eligible?
Application and Nomination Process
105.7 How do I apply for an award?
105.8 When can I apply for an award?
105.9 How can I get nominated for an award?
Selection Criteria
105.10 What do I need to be considered for an award?
105.11 Who selects the award winners?
105.12 How is the awards review committee selected?
105.13 How are the awards winners selected?
Awards Recognition
105.14 How are award winners notified?
105.15 How are award winners recognized?
105.16 How are award winners publicized?
Authority: Section 501(a) and (e) of the Clean Water Act (CWA), 33
U.S.C. 1361(a) and (e).
Source: 67 FR 6142, Feb. 8, 2002, unless otherwise noted.
General
Sec. 105.1 Background.
The Environmental Protection Agency's (EPA) Clean Water Act (CWA)
Recognition Awards Program is authorized by CWA section 501(e). The
Administrator may provide official recognition to industrial
organizations and political subdivisions of States which during the
preceding year demonstrated an outstanding technological achievement or
an innovative process, method or device in their waste treatment and
pollution abatement programs. The wastewater management programs can
generally be characterized as waste treatment and/or pollution abatement
programs. Individual EPA Regional Administrators (and Regional officials
they may designate) also may conduct Regional CWA Recognition Awards
Programs according to and consistent with the provisions of this part.
Sec. 105.2 Definitions.
Applicant means the person authorized to complete the application on
behalf of an industrial organization or political subdivision of States.
Application means a completed questionnaire, nomination form, or
other documentation submitted to or by the States, EPA Regions or
headquarters for consideration of a national CWA Recognition Award.
I means the applicant for an award.
Industrial organization means any company, corporation, association,
partnership, firm, university, not-for-profit organization, or
wastewater
[[Page 12]]
treatment facility, as well as a Federal, State or Tribal government
wastewater treatment facility, or U.S. military command to the extent
such government and other organizations operate in an ``industrial''
capacity in the treatment of wastes or abatement of pollution.
Nominee means a candidate recommended by the State or Tribe or EPA
for consideration for a CWA Recognition Award.
Political subdivision of State means a municipality, city, town,
borough, county, parish, district, association, or other public body
(including an intermunicipal agency of two or more of the foregoing
entities) created by or pursuant to State law.
State means any of the 50 States, the District of Columbia, the
Commonwealth of Puerto Rico, the U.S. Virgin Islands, Guam, American
Samoa, and the Commonwealth of Northern Mariana Islands.
State water pollution control agency means the State agency
designated by the Governing Authority having responsibility for
enforcing State laws relating to the abatement of water pollution.
You means the applicant for an award.
Sec. 105.3 Title.
The awards are known as the National Clean Water Act Recognition
Awards (hereinafter, the Awards Program).
Eligibility Requirements
Sec. 105.4 What are the requirements for the Awards Program?
(a) EPA will administer the Awards Program, and should establish
annual guidance as necessary to administer the Awards Program. EPA will
request from the various offices, and States and Tribes as appropriate,
nominations for the Awards Program.
(b) Nominees must be in total compliance with all applicable water
quality requirements under the CWA in order to be eligible for an award,
and otherwise have a satisfactory record with respect to environmental
quality.
(c) Nominees must provide written documentation as evidence to
support their outstanding technological achievement or innovative
process, method or device in their waste treatment and/or pollution
abatement programs.
(d) EPA may issue annual guidance memoranda to administer each
year's awards programs. For information on the availability of
additional guidance, contact the U.S. Environmental Protection Agency,
Municipal Assistance Branch, 1200 Pennsylvania Avenue, NW., Mail Code
4204-M, Washington, DC 20460. You may also visit EPA's Web site at
www.epa.gov/owm.
Sec. 105.5 Who is eligible to win an award?
A municipality, city, town, borough, county, parish, district,
association, government agency, or other public body, (including an
intermunicipal agency of two or more of the foregoing entities) created
by or pursuant to State law; a company, corporation, association,
partnership, firm, university, not-for-profit organization, or
wastewater treatment facility, as well as a Federal, State or Tribal
government wastewater treatment facility, or U.S. military command to
the extent such government and other organizations operate in an
industrial capacity in the treatment of wastes or abatement of pollution
may be considered for a recognition award.
Sec. 105.6 What are the Awards Program categories for which I
may be eligible?
EPA will publish from time to time, a notice in the Federal Register
announcing the current Awards Program categories. EPA also may
subsequently discontinue, combine, or rename categories by notice
published in the Federal Register.
Application and Nomination Process
Sec. 105.7 How do I apply for an award?
You may contact your local EPA Regional office for information on
the Awards Program guidance each year, or check the Web site at http://
www.epa.gov/owm/intnet.htm. EPA may use an application or nomination
process, as appropriate for the program or Region.
[[Page 13]]
Sec. 105.8 When can I apply for an award?
You can contact your local EPA Regional office for award submission
deadline information which may vary for the award categories, or check
the Web site at http://www.epa.gov/owm/intnet.htm.
Sec. 105.9 How can I get nominated for an award?
You may apply to, or ask your State, Tribe or EPA Region to nominate
you for an award. Only applications or nominations recommended by EPA
Regions are considered for the national award. EPA personnel conduct
compliance evaluations prior to presenting a national award.
Selection Criteria
Sec. 105.10 What do I need to be considered for an award?
Your facility or pollution abatement program must be in total
compliance with all applicable water quality requirements, and otherwise
have a satisfactory record with respect to environmental quality.
Additionally, your facility or pollution abatement program must provide
written documentation as evidence of an outstanding technological
achievement or an innovative process, method or device demonstrated in
the preceding year, which resulted in environmental benefits, cost
savings and/or public acceptance.
Sec. 105.11 Who selects the award winners?
After EPA receives the completed application, the application is
evaluated by a review committee. After the review committee completes
its evaluation of the programs that have been nominated, they make
recommendations for the national awards. EPA then analyzes the results
and selects the award winners.
Sec. 105.12 How is the awards review committee selected?
EPA review committee members are selected by the EPA and in some
cases, State or Tribal water pollution control agencies. The number of
participants in a nominations review process is based on staff
availability, and may be one person.
Sec. 105.13 How are the award winners selected?
Nominees and applications are recommended by EPA regions. EPA
personnel conduct compliance evaluations prior to presenting a national
award. EPA selects national award winners based on demonstrated evidence
of outstanding and/or innovative wastewater treatment and pollution
abatement programs or projects which result in environmental benefits,
cost savings and/or public acceptance. Based upon results of review
committee evaluations, the Agency selects first place winners for a
national award in the appropriate awards categories. A second place
winner may or may not be selected. EPA may or may not select an award
winner for every awards program category. Award decisions are not
subject to administrative review.
Awards Recognition
Sec. 105.14 How are award winners notified?
EPA notifies national award winners by letter.
Sec. 105.15 How are award winners recognized?
EPA presents national award winners with a certificate or plaque at
an awards presentation ceremony as recognition for an outstanding
technological achievement or an innovative process, method or device in
wastewater treatment and/or pollution abatement programs. The President
of the United States, the Governor of the State, or Tribal leader of the
jurisdiction reservation in which the awardee is situated, the Speaker
of the House of Representatives and the President pro tempore of the
Senate are notified by the Administrator.
Sec. 105.16 How are award winners publicized?
EPA announces the annual national recognition award winners through
notice published in the Federal Register.
[[Page 14]]
PART 108_EMPLOYEE PROTECTION HEARINGS--Table of Contents
Sec.
108.1 Applicability.
108.2 Definitions.
108.3 Request for investigation.
108.4 Investigation by Regional Administrator.
108.5 Procedure.
108.6 Recommendations.
108.7 Hearing before Administrator.
Authority: Sec. 507(e), Pub. L. 92-500, 86 Stat. 816 (33 U.S.C. 1251
et seq.).
Source: 39 FR 15398, May 3, 1974, unless otherwise noted.
Sec. 108.1 Applicability.
This part shall be applicable to investigations and hearings
required by section 507(e) of the Federal Water Pollution Control Act,
as amended, 33 U.S.C. 1251 et seq. (Pub. L. 92-500).
Sec. 108.2 Definitions.
As used in this part, the term:
(a) Act means the Federal Water Pollution Control Act, as amended;
(b) Effluent limitation means any effluent limitation which is
established as a condition of a permit issued or proposed to be issued
by a State or by the Environmental Protection Agency pursuant to section
402 of the Act; any toxic or pretreatment effluent standard established
under section 307 of the Act; any standard of performance established
under section 306 of the Act; and any effluent limitation established
under section 302, section 316, or section 318 of the Act.
(c) Order means any order issued by the Administrator under section
309 of the Act; any order issued by a State to secure compliance with a
permit, or condition thereof, issued under a program approved pursuant
to section 402 of the Act; or any order issued by a court in an action
brought pursuant to section 309 or section 505 of the Act.
(d) Party means an employee filing a request under Sec. 108.3, any
employee similarly situated, the employer of any such employee, and the
Regional Administrator or his designee.
(e) Administrator or Regional Administrator means the Administrator
or a Regional Administrator of the Environmental Protection Agency.
Sec. 108.3 Request for investigation.
Any employee who is discharged or laid-off, threatened with
discharge or lay-off, or otherwise discriminated against by any person
because of the alleged results of any effluent limitation or order
issued under the Act, or any representative of such employee, may submit
a request for an investigation under this part to the Regional
Administrator of the region in which such discrimination is alleged to
have occurred.
Sec. 108.4 Investigation by Regional Administrator.
Upon receipt of any request meeting the requirements of Sec. 108.3,
the Regional Administrator shall conduct a full investigation of the
matter, in order to determine whether the request may be related to an
effluent limitation or order under the Act. Following the investigation,
the Regional Administrator shall notify the employee requesting the
investigation (or the employee's representative) and the employer of
such employee, in writing, of his preliminary findings and conclusions.
The employee, the representative of such employee, or the employer may
within fifteen days following receipt of the preliminary findings and
conclusions of the Regional Administrator request a hearing under this
part. Upon receipt of such a request, the Regional Administrator, with
the concurrence of the Chief Administrative Law Judge, shall publish
notice of a hearing to be held not less than 30 days following the date
of such publication where he determines that there are factual issues
concerning the existence of the alleged discrimination or its
relationship to an effluent limitation or order under the Act. The
notice shall specify a date before which any party (or representative of
such party) may submit a request to appear.
Sec. 108.5 Procedure.
Any hearing held pursuant to this part shall be of record and shall
be conducted according to the requirements of 5 U.S.C. 554. The
Administrative Law Judge shall conduct the hearing in an orderly and
expeditious manner. By agreement of the parties, he may dismiss the
hearing. The Administrative
[[Page 15]]
Law Judge, on his own motion, or at the request of any party, shall have
the power to hold prehearing conferences, to issue subpoenas for the
attendance and testimony of witnesses and the production of relevant
papers, books, and documents, and he may administer oaths. The Regional
Administrator, and any party submitting a request pursuant to Sec.
108.3 or Sec. 108.4, or counsel or other representative of such party
or the Regional Administrator, may appear and offer evidence at the
hearing.
Sec. 108.6 Recommendations.
At the conclusion of any hearing under this part, the Administrative
Law Judge shall, based on the record, issue tentative findings of fact
and recommendations concerning the alleged discrimination, and shall
submit such tentative findings and recommendations to the Administrator.
The Administrator shall adopt or modify the findings and recommendations
of the Administrative Law Judge, and shall make copies of such findings
and recommendations available to the complaining employee, the employer,
and the public.
Sec. 108.7 Hearing before Administrator.
At his option, the Administrator may exercise any powers of an
Administrative Law Judge with respect to hearings under this part.
PART 109_CRITERIA FOR STATE, LOCAL AND REGIONAL OIL REMOVAL
CONTINGENCY PLANS--Table of Contents
Sec.
109.1 Applicability.
109.2 Definitions.
109.3 Purpose and scope.
109.4 Relationship to Federal response actions.
109.5 Development and implementation criteria for State, local and
regional oil removal contingency plans.
109.6 Coordination.
Authority: Sec. 11(j)(1)(B), 84 Stat. 96, 33 U.S.C. 1161(j)(1)(B).
Source: 36 FR 22485, Nov. 25, 1971, unless otherwise noted.
Sec. 109.1 Applicability.
The criteria in this part are provided to assist State, local and
regional agencies in the development of oil removal contingency plans
for the inland navigable waters of the United States and all areas other
than the high seas, coastal and contiguous zone waters, coastal and
Great Lakes ports and harbors and such other areas as may be agreed upon
between the Environmental Protection Agency and the Department of
Transportation in accordance with section 11(j)(1)(B) of the Federal
Act, Executive Order No. 11548 dated July 20, 1970 (35 FR 11677) and
Sec. 306.2 of the National Oil and Hazardous Materials Pollution
Contingency Plan (35 FR 8511).
Sec. 109.2 Definitions.
As used in these guidelines, the following terms shall have the
meaning indicated below:
(a) Oil means oil of any kind or in any form, including, but not
limited to, petroleum, fuel oil, sludge, oil refuse, and oil mixed with
wastes other than dredged spoil.
(b) Discharge includes, but is not limited to, any spilling,
leaking, pumping, pouring, emitting, emptying, or dumping.
(c) Remove or removal refers to the removal of the oil from the
water and shorelines or the taking of such other actions as may be
necessary to minimize or mitigate damage to the public health or
welfare, including, but not limited to, fish, shellfish, wildlife, and
public and private property, shorelines, and beaches.
(d) Major disaster means any hurricane, tornado, storm, flood, high
water, wind-driven water, tidal wave, earthquake, drought, fire, or
other catastrophe in any part of the United States which, in the
determination of the President, is or threatens to become of sufficient
severity and magnitude to warrant disaster assistance by the Federal
Government to supplement the efforts and available resources of States
and local governments and relief organizations in alleviating the
damage, loss, hardship, or suffering caused thereby.
[[Page 16]]
(e) United States means the States, the District of Columbia, the
Commonwealth of Puerto Rico, the Canal Zone, Guam, American Samoa, the
Virgin Islands, and the Trust Territory of the Pacific Islands.
(f) Federal Act means the Federal Water Pollution Control Act, as
amended, 33 U.S.C. 1151 et seq.
Sec. 109.3 Purpose and scope.
The guidelines in this part establish minimum criteria for the
development and implementation of State, local, and regional contingency
plans by State and local governments in consultation with private
interests to insure timely, efficient, coordinated and effective action
to minimize damage resulting from oil discharges. Such plans will be
directed toward the protection of the public health or welfare of the
United States, including, but not limited to, fish, shellfish, wildlife,
and public and private property, shorelines, and beaches. The
development and implementation of such plans shall be consistent with
the National Oil and Hazardous Materials Pollution Contingency Plan.
State, local and regional oil removal contingency plans shall provide
for the coordination of the total response to an oil discharge so that
contingency organizations established thereunder can function
independently, in conjunction with each other, or in conjunction with
the National and Regional Response Teams established by the National Oil
and Hazardous Materials Pollution Contingency Plan.
Sec. 109.4 Relationship to Federal response actions.
The National Oil and Hazardous Materials Pollution Contingency Plan
provides that the Federal on-scene commander shall investigate all
reported spills. If such investigation shows that appropriate action is
being taken by either the discharger or non-Federal entities, the
Federal on-scene commander shall monitor and provide advice or
assistance, as required. If appropriate containment or cleanup action is
not being taken by the discharger or non-Federal entities, the Federal
on-scene commander will take control of the response activity in
accordance with section 11(c)(1) of the Federal Act.
Sec. 109.5 Development and implementation criteria for State,
local and regional oil removal contingency plans.
Criteria for the development and implementation of State, local and
regional oil removal contingency plans are:
(a) Definition of the authorities, responsibilities and duties of
all persons, organizations or agencies which are to be involved or could
be involved in planning or directing oil removal operations, with
particular care to clearly define the authorities, responsibilities and
duties of State and local governmental agencies to avoid unnecessary
duplication of contingency planning activities and to minimize the
potential for conflict and confusion that could be generated in an
emergency situation as a result of such duplications.
(b) Establishment of notification procedures for the purpose of
early detection and timely notification of an oil discharge including:
(1) The identification of critical water use areas to facilitate the
reporting of and response to oil discharges.
(2) A current list of names, telephone numbers and addresses of the
responsible persons and alternates on call to receive notification of an
oil discharge as well as the names, telephone numbers and addresses of
the organizations and agencies to be notified when an oil discharge is
discovered.
(3) Provisions for access to a reliable communications system for
timely notification of an oil discharge and incorporation in the
communications system of the capability for interconnection with the
communications systems established under related oil removal contingency
plans, particularly State and National plans.
(4) An established, prearranged procedure for requesting assistance
during a major disaster or when the situation exceeds the response
capability of the State, local or regional authority.
(c) Provisions to assure that full resource capability is known and
can be committed during an oil discharge situation including:
[[Page 17]]
(1) The identification and inventory of applicable equipment,
materials and supplies which are available locally and regionally.
(2) An estimate of the equipment, materials and supplies which would
be required to remove the maximum oil discharge to be anticipated.
(3) Development of agreements and arrangements in advance of an oil
discharge for the acquisition of equipment, materials and supplies to be
used in responding to such a discharge.
(d) Provisions for well defined and specific actions to be taken
after discovery and notification of an oil discharge including:
(1) Specification of an oil discharge response operating team
consisting of trained, prepared and available operating personnel.
(2) Predesignation of a properly qualified oil discharge response
coordinator who is charged with the responsibility and delegated
commensurate authority for directing and coordinating response
operations and who knows how to request assistance from Federal
authorities operating under existing national and regional contingency
plans.
(3) A preplanned location for an oil discharge response operations
center and a reliable communications system for directing the
coordinated overall response operations.
(4) Provisions for varying degrees of response effort depending on
the severity of the oil discharge.
(5) Specification of the order of priority in which the various
water uses are to be protected where more than one water use may be
adversely affected as a result of an oil discharge and where response
operations may not be adequate to protect all uses.
(e) Specific and well defined procedures to facilitate recovery of
damages and enforcement measures as provided for by State and local
statutes and ordinances.
Sec. 109.6 Coordination.
For the purposes of coordination, the contingency plans of State and
local governments should be developed and implemented in consultation
with private interests. A copy of any oil removal contingency plan
developed by State and local governments should be forwarded to the
Council on Environmental Quality upon request to facilitate the
coordination of these contingency plans with the National Oil and
Hazardous Materials Pollution Contingency Plan.
PART 110_DISCHARGE OF OIL--Table of Contents
Sec.
110.1 Definitions.
110.2 Applicability.
110.3 Discharge of oil in such quantities as ``may be harmful'' pursuant
to section 311(b)(4) of the Act.
110.4 Dispersants.
110.5 Discharges of oil not determined ``as may be harmful'' pursuant to
section 311(b)(3) of the Act.
110.6 Notice.
Authority: 33 U.S.C. 1251 et seq., 33 U.S.C. 1321(b)(3) and (b)(4)
and 1361(a); E.O. 11735, 38 FR 21243, 3 CFR parts 1971-1975 Comp., p.
793.
Source: 52 FR 10719, Apr. 2, 1987, unless otherwise noted.
Sec. 110.1 Definitions.
Terms not defined in this section have the same meaning given by the
Section 311 of the Act. As used in this part, the following terms shall
have the meaning indicated below:
Act means the Federal Water Pollution Control Act, as amended, 33
U.S.C. 1251 et seq., also known as the Clean Water Act;
Administrator means the Administrator of the Environmental
Protection Agency (EPA);
Applicable water quality standards means State water quality
standards adopted by the State pursuant to section 303 of the Act or
promulgated by EPA pursuant to that section;
MARPOL 73/78 means the International Convention for the Prevention
of Pollution from Ships, 1973, as modified by the Protocol of 1978
relating thereto, Annex I, which regulates pollution from oil and which
entered into force on October 2, 1983;
Navigable waters means waters of the United States, including the
territorial seas.
[[Page 18]]
(1) For purposes of the Clean Water Act, 33 U.S.C. 1251 et seq. and
its implementing regulations, subject to the exclusions in paragraph (2)
of this section, the term ``waters of the United States'' means:
(i) All waters which are currently used, were used in the past, or
may be susceptible to use in interstate or foreign commerce, including
all waters which are subject to the ebb and flow of the tide;
(ii) All interstate waters, including interstate wetlands;
(iii) The territorial seas;
(iv) All impoundments of waters otherwise identified as waters of
the United States under this section;
(v) All tributaries, as defined in paragraph (3)(iii) of this
definition, of waters identified in paragraphs (1)(i) through (iii) of
this definition;
(vi) All waters adjacent to a water identified in paragraphs (1)(i)
through (v) of this definition, including wetlands, ponds, lakes,
oxbows, impoundments, and similar waters;
(vii) All waters in paragraphs (1)(vii)(A) through (E) of this
definition where they are determined, on a case-specific basis, to have
a significant nexus to a water identified in paragraphs (1)(i) through
(iii) of this definition. The waters identified in each of paragraphs
(1)(vii)(A) through (E) of this definition are similarly situated and
shall be combined, for purposes of a significant nexus analysis, in the
watershed that drains to the nearest water identified in paragraphs
(1)(i) through (iii) of this definition. Waters identified in this
paragraph shall not be combined with waters identified in paragraph
(1)(vi) of this definition when performing a significant nexus analysis.
If waters identified in this paragraph are also an adjacent water under
paragraph (1)(vi), they are an adjacent water and no case-specific
significant nexus analysis is required.
(A) Prairie potholes. Prairie potholes are a complex of glacially
formed wetlands, usually occurring in depressions that lack permanent
natural outlets, located in the upper Midwest.
(B) Carolina bays and Delmarva bays. Carolina bays and Delmarva bays
are ponded, depressional wetlands that occur along the Atlantic coastal
plain.
(C) Pocosins. Pocosins are evergreen shrub and tree dominated
wetlands found predominantly along the Central Atlantic coastal plain.
(D) Western vernal pools. Western vernal pools are seasonal wetlands
located in parts of California and associated with topographic
depression, soils with poor drainage, mild, wet winters and hot, dry
summers.
(E) Texas coastal prairie wetlands. Texas coastal prairie wetlands
are freshwater wetlands that occur as a mosaic of depressions, ridges,
intermound flats, and mima mound wetlands located along the Texas Gulf
Coast.
(viii) All waters located within the 100-year floodplain of a water
identified in paragraphs (1)(i) through (iii) of this definition and all
waters located within 4,000 feet of the high tide line or ordinary high
water mark of a water identified in paragraphs (1)(i) through (v) of
this definition where they are determined on a case-specific basis to
have a significant nexus to a water identified in paragraphs (1)(i)
through (iii) of this definition. For waters determined to have a
significant nexus, the entire water is a water of the United States if a
portion is located within the 100-year floodplain of a water identified
in paragraphs (1)(i) through (iii) of this definition or within 4,000
feet of the high tide line or ordinary high water mark. Waters
identified in this paragraph shall not be combined with waters
identified in paragraph (1)(vi) of this definition when performing a
significant nexus analysis. If waters identified in this paragraph are
also an adjacent water under paragraph (1)(vi), they are an adjacent
water and no case-specific significant nexus analysis is required.
(2) The following are not ``waters of the United States'' even where
they otherwise meet the terms of paragraphs (1)(iv) through (viii) of
this section.
(i) Waste treatment systems (other than cooling ponds meeting the
criteria of this paragraph) are not waters of the United States.
(ii) Prior converted cropland. Notwithstanding the determination of
an area's status as prior converted cropland by any other Federal
agency, for
[[Page 19]]
the purposes of the Clean Water Act, the final authority regarding Clean
Water Act jurisdiction remains with EPA.
(iii) The following ditches:
(A) Ditches with ephemeral flow that are not a relocated tributary
or excavated in a tributary.
(B) Ditches with intermittent flow that are not a relocated
tributary, excavated in a tributary, or drain wetlands.
(C) Ditches that do not flow, either directly or through another
water, into a water identified in paragraphs (1)(i) through (iii) of
this definition.
(iv) The following features:
(A) Artificially irrigated areas that would revert to dry land
should application of water to that area cease;
(B) Artificial, constructed lakes and ponds created in dry land such
as farm and stock watering ponds, irrigation ponds, settling basins,
fields flooded for rice growing, log cleaning ponds, or cooling ponds;
(C) Artificial reflecting pools or swimming pools created in dry
land;
(D) Small ornamental waters created in dry land;
(E) Water-filled depressions created in dry land incidental to
mining or construction activity, including pits excavated for obtaining
fill, sand, or gravel that fill with water;
(F) Erosional features, including gullies, rills, and other
ephemeral features that do not meet the definition of tributary, non-
wetland swales, and lawfully constructed grassed waterways; and
(G) Puddles.
(v) Groundwater, including groundwater drained through subsurface
drainage systems.
(vi) Stormwater control features constructed to convey, treat, or
store stormwater that are created in dry land.
(vii) Wastewater recycling structures constructed in dry land;
detention and retention basins built for wastewater recycling;
groundwater recharge basins; percolation ponds built for wastewater
recycling; and water distributary structures built for wastewater
recycling.
(3) In this definition, the following terms apply:
(i) Adjacent. The term adjacent means bordering, contiguous, or
neighboring a water identified in paragraphs (1)(i) through (v) of this
definition, including waters separated by constructed dikes or barriers,
natural river berms, beach dunes, and the like. For purposes of
adjacency, an open water such as a pond or lake includes any wetlands
within or abutting its ordinary high water mark. Adjacency is not
limited to waters located laterally to a water identified in paragraphs
(1)(1) through (v) of this definition. Adjacent waters also include all
waters that connect segments of a water identified in paragraphs (1)(i)
through (v) or are located at the head of a water identified in
paragraphs (1)(i) through (v) of this definition and are bordering,
contiguous, or neighboring such water. Waters being used for established
normal farming, ranching, and silviculture activities (33 U.S.C.
1344(f)) are not adjacent.
(ii) Neighboring. The term neighboring means:
(A) All waters located within 100 feet of the ordinary high water
mark of a water identified in paragraphs (1)(i) through (v) of this
definition. The entire water is neighboring if a portion is located
within 100 feet of the ordinary high water mark;
(B) All waters located within the 100-year floodplain of a water
identified in paragraphs (1)(i) through (v) of this definition and not
more than 1,500 feet from the ordinary high water mark of such water.
The entire water is neighboring if a portion is located within 1,500
feet of the ordinary high water mark and within the 100-year floodplain;
(C) All waters located within 1,500 feet of the high tide line of a
water identified in paragraphs (1)(i) or (iii) of this definition, and
all waters within 1,500 feet of the ordinary high water mark of the
Great Lakes. The entire water is neighboring if a portion is located
within 1,500 feet of the high tide line or within 1,500 feet of the
ordinary high water mark of the Great Lakes.
(iii) Tributary and tributaries. The terms tributary and tributaries
each mean a water that contributes flow, either directly or through
another water (including an impoundment identified in paragraph (1)(iv)
of this section), to
[[Page 20]]
a water identified in paragraphs (1)(i) through (iii) of this definition
that is characterized by the presence of the physical indicators of a
bed and banks and an ordinary high water mark. These physical indicators
demonstrate there is volume, frequency, and duration of flow sufficient
to create a bed and banks and an ordinary high water mark, and thus to
qualify as a tributary. A tributary can be a natural, man-altered, or
man-made water and includes waters such as rivers, streams, canals, and
ditches not excluded under paragraph (2) of this definition. A water
that otherwise qualifies as a tributary under this definition does not
lose its status as a tributary if, for any length, there are one or more
constructed breaks (such as bridges, culverts, pipes, or dams), or one
or more natural breaks (such as wetlands along the run of a stream,
debris piles, boulder fields, or a stream that flows underground) so
long as a bed and banks and an ordinary high water mark can be
identified upstream of the break. A water that otherwise qualifies as a
tributary under this definition does not lose its status as a tributary
if it contributes flow through a water of the United States that does
not meet the definition of tributary or through a non-jurisdictional
water to a water identified in paragraphs (1)(i) through (iii) of this
definition.
(iv) Wetlands. The term wetlands means those areas that are
inundated or saturated by surface or groundwater at a frequency and
duration sufficient to support, and that under normal circumstances do
support, a prevalence of vegetation typically adapted for life in
saturated soil conditions. Wetlands generally include swamps, marshes,
bogs, and similar areas.
(v) Significant nexus. The term significant nexus means that a
water, including wetlands, either alone or in combination with other
similarly situated waters in the region, significantly affects the
chemical, physical, or biological integrity of a water identified in
paragraphs (1)(i) through (iii) of this definition. The term ``in the
region'' means the watershed that drains to the nearest water identified
in paragraphs (1)(i) through (iii) of this definition. For an effect to
be significant, it must be more than speculative or insubstantial.
Waters are similarly situated when they function alike and are
sufficiently close to function together in affecting downstream waters.
For purposes of determining whether or not a water has a significant
nexus, the water's effect on downstream (1)(i) through (iii) waters
shall be assessed by evaluating the aquatic functions identified in
paragraphs (3)(v)(A) through (I) of this definition. A water has a
significant nexus when any single function or combination of functions
performed by the water, alone or together with similarly situated waters
in the region, contributes significantly to the chemical, physical, or
biological integrity of the nearest water identified in paragraphs
(1)(i) through (iii) of this definition. Functions relevant to the
significant nexus evaluation are the following:
(A) Sediment trapping,
(B) Nutrient recycling,
(C) Pollutant trapping, transformation, filtering, and transport,
(D) Retention and attenuation of flood waters,
(E) Runoff storage,
(F) Contribution of flow,
(G) Export of organic matter,
(H) Export of food resources, and
(I) Provision of life cycle dependent aquatic habitat (such as
foraging, feeding, nesting, breeding, spawning, or use as a nursery
area) for species located in a water identified in paragraphs (1)(i)
through (iii) of this definition.
(vi) Ordinary high water mark. The term ordinary high water mark
means that line on the shore established by the fluctuations of water
and indicated by physical characteristics such as a clear, natural line
impressed on the bank, shelving, changes in the character of soil,
destruction of terrestrial vegetation, the presence of litter and
debris, or other appropriate means that consider the characteristics of
the surrounding areas.
(vii) High tide line. The term high tide line means the line of
intersection of the land with the water's surface at the maximum height
reached by a rising tide. The high tide line may be determined, in the
absence of actual data, by a line of oil or scum along shore objects, a
more or less continuous deposit
[[Page 21]]
of fine shell or debris on the foreshore or berm, other physical
markings or characteristics, vegetation lines, tidal gages, or other
suitable means that delineate the general height reached by a rising
tide. The line encompasses spring high tides and other high tides that
occur with periodic frequency but does not include storm surges in which
there is a departure from the normal or predicted reach of the tide due
to the piling up of water against a coast by strong winds such as those
accompanying a hurricane or other intense storm.
(4) Applicability date. This definition is applicable beginning on
February 6, 2020.
NPDES means National Pollutant Discharge Elimination System;
Sheen means an iridescent appearance on the surface of water;
Sludge means an aggregate of oil or oil and other matter of any kind
in any form other than dredged spoil having a combined specific gravity
equivalent to or greater than water;
United States means the States, the District of Columbia, the
Commonwealth of Puerto Rico, Guam, American Samoa, the Virgin Islands,
and the Trust Territory of the Pacific Islands;
[52 FR 10719, Apr. 2, 1987, as amended at 58 FR 45039, Aug. 25, 1993; 61
FR 7421, Feb. 28, 1996; 80 FR 37106, June 29, 2015; 83 FR 5208, Feb. 6,
2018]
Sec. 110.2 Applicability.
The regulations of this part apply to the discharge of oil
prohibited by section 311(b)(3) of the Act.
[61 FR 7421, Feb. 28, 1996]
Sec. 110.3 Discharge of oil in such quantities as
``may be harmful'' pursuant to section 311(b)(4) of the Act.
For purposes of section 311(b)(4) of the Act, discharges of oil in
such quantities that the Administrator has determined may be harmful to
the public health or welfare or the environment of the United States
include discharges of oil that:
(a) Violate applicable water quality standards; or
(b) Cause a film or sheen upon or discoloration of the surface of
the water or adjoining shorelines or cause a sludge or emulsion to be
deposited beneath the surface of the water or upon adjoining shorelines.
[61 FR 7421, Feb. 28, 1996]
Sec. 110.4 Dispersants.
Addition of dispersants or emulsifiers to oil to be discharged that
would circumvent the provisions of this part is prohibited.
[52 FR 10719, Apr. 2, 1987. Redesignated at 61 FR 7421, Feb. 28, 1996]
Sec. 110.5 Discharges of oil not determined ``as may be harmful''
pursuant to Section 311(b)(3) of the Act.
Notwithstanding any other provisions of this part, the Administrator
has not determined the following discharges of oil ``as may be harmful''
for purposes of section 311(b) of the Act:
(a) Discharges of oil from a properly functioning vessel engine
(including an engine on a public vessel) and any discharges of such oil
accumulated in the bilges of a vessel discharged in compliance with
MARPOL 73/78, Annex I, as provided in 33 CFR part 151, subpart A;
(b) Other discharges of oil permitted under MARPOL 73/78, Annex I,
as provided in 33 CFR part 151, subpart A; and
(c) Any discharge of oil explicitly permitted by the Administrator
in connection with research, demonstration projects, or studies relating
to the prevention, control, or abatement of oil pollution.
[61 FR 7421, Feb. 28, 1996]
Sec. 110.6 Notice.
Any person in charge of a vessel or of an onshore or offshore
facility shall, as soon as he or she has knowledge of any discharge of
oil from such vessel or facility in violation of section 311(b)(3) of
the Act, immediately notify the National Response Center (NRC) (800-424-
8802; in the Washington, DC metropolitan area, 202-426-2675). If direct
reporting to the NRC is not practicable, reports may be made to the
Coast Guard or EPA predesignated On-Scene Coordinator (OSC) for the
geographic area where the discharge occurs. All such reports shall be
promptly relayed to the NRC. If it is not possible to notify the NRC or
the predesignated OCS immediately, reports may be made immediately to
the nearest Coast Guard
[[Page 22]]
unit, provided that the person in charge of the vessel or onshore or
offshore facility notifies the NRC as soon as possible. The reports
shall be made in accordance with such procedures as the Secretary of
Transportation may prescribe. The procedures for such notice are set
forth in U.S. Coast Guard regulations, 33 CFR part 153, subpart B and in
the National Oil and Hazardous Substances Pollution Contingency Plan, 40
CFR part 300, subpart E.
(Approved by the Office of Management and Budget under control number
2050-0046)
[52 FR 10719, Apr. 2, 1987. Redesignated and amended at 61 FR 7421, Feb.
28, 1996; 61 FR 14032, Mar. 29, 1996]
PART 112_OIL POLLUTION PREVENTION--Table of Contents
Subpart A_Applicability, Definitions, and General Requirements For All
Facilities and All Types of Oils
Sec.
112.1 General applicability.
112.2 Definitions.
112.3 Requirement to prepare and implement a Spill Prevention, Control,
and Countermeasure Plan.
112.4 Amendment of Spill Prevention, Control, and Countermeasure Plan by
Regional Administrator.
112.5 Amendment of Spill Prevention, Control, and Countermeasure Plan by
owners or operators.
112.6 Qualified Facility Plan Requirements.
112.7 General requirements for Spill Prevention, Control, and
Countermeasure Plans.
Subpart B_Requirements for Petroleum Oils and Non-Petroleum Oils, Except
Animal Fats and Oils and Greases, and Fish and Marine Mammal Oils; and
Vegetable Oils (Including Oils from Seeds, Nuts, Fruits, and Kernels)
112.8 Spill Prevention, Control, and Countermeasure Plan requirements
for onshore facilities (excluding production facilities).
112.9 Spill Prevention, Control, and Countermeasure Plan Requirements
for onshore oil production facilities (excluding drilling and
workover facilities).
112.10 Spill Prevention, Control, and Countermeasure Plan requirements
for onshore oil drilling and workover facilities.
112.11 Spill Prevention, Control, and Countermeasure Plan requirements
for offshore oil drilling, production, or workover facilities.
Subpart C_Requirements for Animal Fats and Oils and Greases, and Fish
and Marine Mammal Oils; and for Vegetable Oils, Including Oils from
Seeds, Nuts, Fruits and Kernels
112.12 Spill Prevention, Control, and Countermeasure Plan requirements.
112.13-112.15 [Reserved]
Subpart D_Response Requirements
112.20 Facility response plans.
112.21 Facility response training and drills/exercises.
Appendix A to Part 112--Memorandum of Understanding Between the
Secretary of Transportation and the Administrator of the
Environmental Protection Agency
Appendix B to Part 112--Memorandum of Understanding Among the Secretary
of the Interior, Secretary of Transportation, and
Administrator of the Environmental Protection Agency
Appendix C to Part 112--Substantial Harm Criteria
Appendix D to Part 112--Determination of a Worst Case Discharge Planning
Volume
Appendix E to Part 112--Determination and Evaluation of Required
Response Resources for Facility Response Plans
Appendix F to Part 112--Facility-Specific Response Plan
Appendix G to Part 112--Tier I Qualified Facility SPCC Plan
Authority: 33 U.S.C. 1251 et seq.
Source: 38 FR 34165, Dec. 11, 1973, unless otherwise noted.
Editorial Note: Nomenclature changes to part 112 appear at 65 FR
40798, June 30, 2000.
Subpart A_Applicability, Definitions, and General Requirements for All
Facilities and All Types of Oils
Source: 67 FR 47140, July 17, 2002, unless otherwise noted.
Sec. 112.1 General applicability.
(a)(1) This part establishes procedures, methods, equipment, and
other requirements to prevent the discharge of oil from non-
transportation-related onshore and offshore facilities into or upon the
navigable waters of the
[[Page 23]]
United States or adjoining shorelines, or into or upon the waters of the
contiguous zone, or in connection with activities under the Outer
Continental Shelf Lands Act or the Deepwater Port Act of 1974, or that
may affect natural resources belonging to, appertaining to, or under the
exclusive management authority of the United States (including resources
under the Magnuson Fishery Conservation and Management Act).
(2) As used in this part, words in the singular also include the
plural and words in the masculine gender also include the feminine and
vice versa, as the case may require.
(b) Except as provided in paragraph (d) of this section, this part
applies to any owner or operator of a non-transportation-related onshore
or offshore facility engaged in drilling, producing, gathering, storing,
processing, refining, transferring, distributing, using, or consuming
oil and oil products, which due to its location, could reasonably be
expected to discharge oil in quantities that may be harmful, as
described in part 110 of this chapter, into or upon the navigable waters
of the United States or adjoining shorelines, or into or upon the waters
of the contiguous zone, or in connection with activities under the Outer
Continental Shelf Lands Act or the Deepwater Port Act of 1974, or that
may affect natural resources belonging to, appertaining to, or under the
exclusive management authority of the United States (including resources
under the Magnuson Fishery Conservation and Management Act) that has oil
in:
(1) Any aboveground container;
(2) Any completely buried tank as defined in Sec. 112.2;
(3) Any container that is used for standby storage, for seasonal
storage, or for temporary storage, or not otherwise ``permanently
closed'' as defined in Sec. 112.2;
(4) Any ``bunkered tank'' or ``partially buried tank'' as defined in
Sec. 112.2, or any container in a vault, each of which is considered an
aboveground storage container for purposes of this part.
(c) As provided in section 313 of the Clean Water Act (CWA),
departments, agencies, and instrumentalities of the Federal government
are subject to this part to the same extent as any person.
(d) Except as provided in paragraph (f) of this section, this part
does not apply to:
(1) The owner or operator of any facility, equipment, or operation
that is not subject to the jurisdiction of the Environmental Protection
Agency (EPA) under section 311(j)(1)(C) of the CWA, as follows:
(i) Any onshore or offshore facility, that due to its location,
could not reasonably be expected to have a discharge as described in
paragraph (b) of this section. This determination must be based solely
upon consideration of the geographical and location aspects of the
facility (such as proximity to navigable waters or adjoining shorelines,
land contour, drainage, etc.) and must exclude consideration of manmade
features such as dikes, equipment or other structures, which may serve
to restrain, hinder, contain, or otherwise prevent a discharge as
described in paragraph (b) of this section.
(ii) Any equipment, or operation of a vessel or transportation-
related onshore or offshore facility which is subject to the authority
and control of the U.S. Department of Transportation, as defined in the
Memorandum of Understanding between the Secretary of Transportation and
the Administrator of EPA, dated November 24, 1971 (appendix A of this
part).
(iii) Any equipment, or operation of a vessel or onshore or offshore
facility which is subject to the authority and control of the U.S.
Department of Transportation or the U.S. Department of the Interior, as
defined in the Memorandum of Understanding between the Secretary of
Transportation, the Secretary of the Interior, and the Administrator of
EPA, dated November 8, 1993 (appendix B of this part).
(2) Any facility which, although otherwise subject to the
jurisdiction of EPA, meets both of the following requirements:
(i) The completely buried storage capacity of the facility is 42,000
U.S. gallons or less of oil. For purposes of this exemption, the
completely buried storage capacity of a facility excludes the capacity
of a completely buried tank,
[[Page 24]]
as defined in Sec. 112.2, and connected underground piping, underground
ancillary equipment, and containment systems, that is currently subject
to all of the technical requirements of part 280 of this chapter or all
of the technical requirements of a State program approved under part 281
of this chapter, or the capacity of any underground oil storage tanks
deferred under 40 CFR part 280 that supply emergency diesel generators
at a nuclear power generation facility licensed by the Nuclear
Regulatory Commission and subject to any Nuclear Regulatory Commission
provision regarding design and quality criteria, including, but not
limited to, 10 CFR part 50. The completely buried storage capacity of a
facility also excludes the capacity of a container that is ``permanently
closed,'' as defined in Sec. 112.2 and the capacity of intra-facility
gathering lines subject to the regulatory requirements of 49 CFR part
192 or 195.
(ii) The aggregate aboveground storage capacity of the facility is
1,320 U.S. gallons or less of oil. For the purposes of this exemption,
only containers with a capacity of 55 U.S. gallons or greater are
counted. The aggregate aboveground storage capacity of a facility
excludes:
(A) The capacity of a container that is ``permanently closed'' as
defined in Sec. 112.2;
(B) The capacity of a ``motive power container'' as defined in Sec.
112.2;
(C) The capacity of hot-mix asphalt or any hot-mix asphalt
container;
(D) The capacity of a container for heating oil used solely at a
single-family residence;
(E) The capacity of pesticide application equipment and related mix
containers.
(F) The capacity of any milk and milk product container and
associated piping and appurtenances.
(3) Any offshore oil drilling, production, or workover facility that
is subject to the notices and regulations of the Minerals Management
Service, as specified in the Memorandum of Understanding between the
Secretary of Transportation, the Secretary of the Interior, and the
Administrator of EPA, dated November 8, 1993 (appendix B of this part).
(4) Any completely buried storage tank, as defined in Sec. 112.2,
and connected underground piping, underground ancillary equipment, and
containment systems, at any facility, that is subject to all of the
technical requirements of part 280 of this chapter or a State program
approved under part 281 of this chapter, or any underground oil storage
tanks including below-grade vaulted tanks, deferred under 40 CFR part
280, as originally promulgated, that supply emergency diesel generators
at a nuclear power generation facility licensed by the Nuclear
Regulatory Commission, provided that such a tank is subject to any
Nuclear Regulatory Commission provision regarding design and quality
criteria, including, but not limited to, 10 CFR part 50. Such emergency
generator tanks must be marked on the facility diagram as provided in
Sec. 112.7(a)(3), if the facility is otherwise subject to this part.
(5) Any container with a storage capacity of less than 55 gallons of
oil.
(6) Any facility or part thereof used exclusively for wastewater
treatment and not used to satisfy any requirement of this part. The
production, recovery, or recycling of oil is not wastewater treatment
for purposes of this paragraph.
(7) Any ``motive power container,'' as defined in Sec. 112.2. The
transfer of fuel or other oil into a motive power container at an
otherwise regulated facility is not eligible for this exemption.
(8) Hot-mix asphalt, or any hot-mix asphalt container.
(9) Any container for heating oil used solely at a single-family
residence.
(10) Any pesticide application equipment or related mix containers.
(11) Intra-facility gathering lines subject to the regulatory
requirements of 49 CFR part 192 or 195, except that such a line's
location must be identified and marked as ``exempt'' on the facility
diagram as provided in Sec. 112.7(a)(3), if the facility is otherwise
subject to this part.
(12) 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,
[[Page 25]]
and Countermeasure (SPCC) Plans. SPCC Plans are designed to complement
existing laws, regulations, rules, standards, policies, and procedures
pertaining to safety standards, fire prevention, and pollution
prevention rules. The purpose of an SPCC Plan is to form a comprehensive
Federal/State spill prevention program that minimizes the potential for
discharges. The SPCC Plan must address all relevant spill prevention,
control, and countermeasures necessary at the specific facility.
Compliance with this part does not in any way relieve the owner or
operator of an onshore or an offshore facility from compliance with
other Federal, State, or local laws.
(f) Notwithstanding paragraph (d) of this section, the Regional
Administrator may require that the owner or operator of any facility
subject to the jurisdiction of EPA under section 311(j) of the CWA
prepare and implement an SPCC Plan, or any applicable part, to carry out
the purposes of the CWA.
(1) Following a preliminary determination, the Regional
Administrator must provide a written notice to the owner or operator
stating the reasons why he must prepare an SPCC Plan, or applicable
part. The Regional Administrator must send such notice to the owner or
operator by certified mail or by personal delivery. If the owner or
operator is a corporation, the Regional Administrator must also mail a
copy of such notice to the registered agent, if any and if known, of the
corporation in the State where the facility is located.
(2) Within 30 days of receipt of such written notice, the owner or
operator may provide information and data and may consult with the
Agency about the need to prepare an SPCC Plan, or applicable part.
(3) Within 30 days following the time under paragraph (b)(2) of this
section within which the owner or operator may provide information and
data and consult with the Agency about the need to prepare an SPCC Plan,
or applicable part, the Regional Administrator must make a final
determination regarding whether the owner or operator is required to
prepare and implement an SPCC Plan, or applicable part. The Regional
Administrator must send the final determination to the owner or operator
by certified mail or by personal delivery. If the owner or operator is a
corporation, the Regional Administrator must also mail a copy of the
final determination to the registered agent, if any and if known, of the
corporation in the State where the facility is located.
(4) If the Regional Administrator makes a final determination that
an SPCC Plan, or applicable part, is necessary, the owner or operator
must prepare the Plan, or applicable part, within six months of that
final determination and implement the Plan, or applicable part, as soon
as possible, but not later than one year after the Regional
Administrator has made a final determination.
(5) The owner or operator may appeal a final determination made by
the Regional Administrator requiring preparation and implementation of
an SPCC Plan, or applicable part, under this paragraph. The owner or
operator must make the appeal to the Administrator of EPA within 30 days
of receipt of the final determination under paragraph (b)(3) of this
section from the Regional Administrator requiring preparation and/or
implementation of an SPCC Plan, or applicable part. The owner or
operator must send a complete copy of the appeal to the Regional
Administrator at the time he makes the appeal to the Administrator. The
appeal must contain a clear and concise statement of the issues and
points of fact in the case. In the appeal, the owner or operator may
also provide additional information. The additional information may be
from any person. The Administrator may request additional information
from the owner or operator. The Administrator must render a decision
within 60 days of receiving the appeal or additional information
submitted by the owner or operator and must serve the owner or operator
with the decision 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]
Sec. 112.2 Definitions.
For the purposes of this part:
[[Page 26]]
Adverse weather means weather conditions that make it difficult for
response equipment and personnel to clean up or remove spilled oil, and
that must be considered when identifying response systems and equipment
in a response plan for the applicable operating environment. Factors to
consider include significant wave height as specified in appendix E to
this part (as appropriate), ice conditions, temperatures, weather-
related visibility, and currents within the area in which the systems or
equipment is intended to function.
Alteration means any work on a container involving cutting, burning,
welding, or heating operations that changes the physical dimensions or
configuration of the container.
Animal fat means a non-petroleum oil, fat, or grease of animal,
fish, or marine mammal origin.
Breakout tank means a container used to relieve surges in an oil
pipeline system or to receive and store oil transported by a pipeline
for reinjection and continued transportation by pipeline.
Bulk storage container means any container used to store oil. These
containers are used for purposes including, but not limited to, the
storage of oil prior to use, while being used, or prior to further
distribution in commerce. Oil-filled electrical, operating, or
manufacturing equipment is not a bulk storage container.
Bunkered tank means a container constructed or placed in the ground
by cutting the earth and re-covering the container in a manner that
breaks the surrounding natural grade, or that lies above grade, and is
covered with earth, sand, gravel, asphalt, or other material. A bunkered
tank is considered an aboveground storage container for purposes of this
part.
Completely buried tank means any container completely below grade
and covered with earth, sand, gravel, asphalt, or other material.
Containers in vaults, bunkered tanks, or partially buried tanks are
considered aboveground storage containers for purposes of this part.
Complex means a facility possessing a combination of transportation-
related and non-transportation-related components that is subject to the
jurisdiction of more than one Federal agency under section 311(j) of the
CWA.
Contiguous zone means the zone established by the United States
under Article 24 of the Convention of the Territorial Sea and Contiguous
Zone, that is contiguous to the territorial sea and that extends nine
miles seaward from the outer limit of the territorial area.
Contract or other approved means means:
(1) A written contractual agreement with an oil spill removal
organization that identifies and ensures the availability of the
necessary personnel and equipment within appropriate response times;
and/or
(2) A written certification by the owner or operator that the
necessary personnel and equipment resources, owned or operated by the
facility owner or operator, are available to respond to a discharge
within appropriate response times; and/or
(3) Active membership in a local or regional oil spill removal
organization that has identified and ensures adequate access through
such membership to necessary personnel and equipment to respond to a
discharge within appropriate response times in the specified geographic
area; and/or
(4) Any other specific arrangement approved by the Regional
Administrator upon request of the owner or operator.
Discharge includes, but is not limited to, any spilling, leaking,
pumping, pouring, emitting, emptying, or dumping of oil, but excludes
discharges in compliance with a permit under section 402 of the CWA;
discharges resulting from circumstances identified, reviewed, and made a
part of the public record with respect to a permit issued or modified
under section 402 of the CWA, and subject to a condition in such permit;
or continuous or anticipated intermittent discharges from a point
source, identified in a permit or permit application under section 402
of the CWA, that are caused by events occurring within the scope of
relevant operating or treatment systems. For purposes of this part, the
term discharge shall not include any discharge of oil that is authorized
by a permit issued under section 13 of the River and Harbor Act of 1899
(33 U.S.C. 407).
[[Page 27]]
Facility means any mobile or fixed, onshore or offshore building,
property, parcel, lease, structure, installation, equipment, pipe, or
pipeline (other than a vessel or a public vessel) used in oil well
drilling operations, oil production, oil refining, oil storage, oil
gathering, oil processing, oil transfer, oil distribution, and oil waste
treatment, or in which oil is used, as described in appendix A to this
part. The boundaries of a facility depend on several site-specific
factors, including but not limited to, the ownership or operation of
buildings, structures, and equipment on the same site and types of
activity at the site. Contiguous or non-contiguous buildings,
properties, parcels, leases, structures, installations, pipes, or
pipelines under the ownership or operation of the same person may be
considered separate facilities. Only this definition governs whether a
facility is subject to this part.
Farm means a facility on a tract of land devoted to the production
of crops or raising of animals, including fish, which produced and sold,
or normally would have produced and sold, $1,000 or more of agricultural
products during a year.
Fish and wildlife and sensitive environments means areas that may be
identified by their legal designation or by evaluations of Area
Committees (for planning) or members of the Federal On-Scene
Coordinator's spill response structure (during responses). These areas
may include wetlands, National and State parks, critical habitats for
endangered or threatened species, wilderness and natural resource areas,
marine sanctuaries and estuarine reserves, conservation areas,
preserves, wildlife areas, wildlife refuges, wild and scenic rivers,
recreational areas, national forests, Federal and State lands that are
research national areas, heritage program areas, land trust areas, and
historical and archaeological sites and parks. These areas may also
include unique habitats such as aquaculture sites and agricultural
surface water intakes, bird nesting areas, critical biological resource
areas, designated migratory routes, and designated seasonal habitats.
Injury means a measurable adverse change, either long- or short-
term, in the chemical or physical quality or the viability of a natural
resource resulting either directly or indirectly from exposure to a
discharge, or exposure to a product of reactions resulting from a
discharge.
Loading/unloading rack means a fixed structure (such as a platform,
gangway) necessary for loading or unloading a tank truck or tank car,
which is located at a facility subject to the requirements of this part.
A loading/unloading rack includes a loading or unloading arm, and may
include any combination of the following: piping assemblages, valves,
pumps, shut-off devices, overfill sensors, or personnel safety devices.
Maximum extent practicable means within the limitations used to
determine oil spill planning resources and response times for on-water
recovery, shoreline protection, and cleanup for worst case discharges
from onshore non-transportation-related facilities in adverse weather.
It includes the planned capability to respond to a worst case discharge
in adverse weather, as contained in a response plan that meets the
requirements in Sec. 112.20 or in a specific plan approved by the
Regional Administrator.
Mobile refueler means a bulk storage container onboard a vehicle or
towed, that is designed or used solely to store and transport fuel for
transfer into or from an aircraft, motor vehicle, locomotive, vessel,
ground service equipment, or other oil storage container.
Motive power container means any onboard bulk storage container used
primarily to power the movement of a motor vehicle, or ancillary onboard
oil-filled operational equipment. An onboard bulk storage container
which is used to store or transfer oil for further distribution is not a
motive power container. The definition of motive power container does
not include oil drilling or workover equipment, including rigs.
Navigable waters 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:
[[Page 28]]
(i) All waters which are currently used, were used in the past, or
may be susceptible to use in interstate or foreign commerce, including
all waters which are subject to the ebb and flow of the tide;
(ii) All interstate waters, including interstate wetlands;
(iii) The territorial seas;
(iv) All impoundments of waters otherwise identified as waters of
the United States under this section;
(v) All tributaries, as defined in paragraph (3)(iii) of this
definition, of waters identified in paragraphs (1)(i) through (iii) of
this definition;
(vi) All waters adjacent to a water identified in paragraphs (1)(i)
through (v) of this definition, including wetlands, ponds, lakes,
oxbows, impoundments, and similar waters;
(vii) All waters in paragraphs (1)(vii)(A) through (E) of this
definition where they are determined, on a case-specific basis, to have
a significant nexus to a water identified in paragraphs (1)(i) through
(iii) of this definition. The waters identified in each of paragraphs
(1)(vii)(A) through (E) of this definition are similarly situated and
shall be combined, for purposes of a significant nexus analysis, in the
watershed that drains to the nearest water identified in paragraphs
(1)(i) through (iii) of this definition. Waters identified in this
paragraph shall not be combined with waters identified in paragraph
(1)(vi) of this section when performing a significant nexus analysis. If
waters identified in this paragraph are also an adjacent water under
paragraph (1)(vi), they are an adjacent water and no case-specific
significant nexus analysis is required.
(A) Prairie potholes. Prairie potholes are a complex of glacially
formed wetlands, usually occurring in depressions that lack permanent
natural outlets, located in the upper Midwest.
(B) Carolina bays and Delmarva bays. Carolina bays and Delmarva bays
are ponded, depressional wetlands that occur along the Atlantic coastal
plain.
(C) Pocosins. Pocosins are evergreen shrub and tree dominated
wetlands found predominantly along the Central Atlantic coastal plain.
(D) Western vernal pools. Western vernal pools are seasonal wetlands
located in parts of California and associated with topographic
depression, soils with poor drainage, mild, wet winters and hot, dry
summers.
(E) Texas coastal prairie wetlands. Texas coastal prairie wetlands
are freshwater wetlands that occur as a mosaic of depressions, ridges,
intermound flats, and mima mound wetlands located along the Texas Gulf
Coast.
(viii) All waters located within the 100-year floodplain of a water
identified in paragraphs (1)(i) through (iii) of this definition and all
waters located within 4,000 feet of the high tide line or ordinary high
water mark of a water identified in paragraphs (1)(i) through (v) of
this definition where they are determined on a case-specific basis to
have a significant nexus to a water identified in paragraphs (1)(i)
through (iii) of this definition. For waters determined to have a
significant nexus, the entire water is a water of the United States if a
portion is located within the 100-year floodplain of a water identified
in paragraphs (1)(i) through (iii) of this definition or within 4,000
feet of the high tide line or ordinary high water mark. Waters
identified in this paragraph shall not be combined with waters
identified in paragraph (1)(vi) of this definition when performing a
significant nexus analysis. If waters identified in this paragraph are
also an adjacent water under paragraph (1)(vi), they are an adjacent
water and no case-specific significant nexus analysis is required.
(2) The following are not ``waters of the United States'' even where
they otherwise meet the terms of paragraphs (1)(iv) through (viii) of
this definition.
(i) The following ditches:
(A) Ditches with ephemeral flow that are not a relocated tributary
or excavated in a tributary.
(B) Ditches with intermittent flow that are not a relocated
tributary, excavated in a tributary, or drain wetlands.
(C) Ditches that do not flow, either directly or through another
water, into a water identified in paragraphs (1)(i) through (iii) of
this definition.
(ii) The following features:
[[Page 29]]
(A) Artificially irrigated areas that would revert to dry land
should application of water to that area cease;
(B) Artificial, constructed lakes and ponds created in dry land such
as farm and stock watering ponds, irrigation ponds, settling basins,
fields flooded for rice growing, log cleaning ponds, or cooling ponds;
(C) Artificial reflecting pools or swimming pools created in dry
land;
(D) Small ornamental waters created in dry land;
(E) Water-filled depressions created in dry land incidental to
mining or construction activity, including pits excavated for obtaining
fill, sand, or gravel that fill with water;
(F) Erosional features, including gullies, rills, and other
ephemeral features that do not meet the definition of tributary, non-
wetland swales, and lawfully constructed grassed waterways; and
(G) Puddles.
(iii) Groundwater, including groundwater drained through subsurface
drainage systems.
(iv) Stormwater control features constructed to convey, treat, or
store stormwater that are created in dry land.
(v) Wastewater recycling structures constructed in dry land;
detention and retention basins built for wastewater recycling;
groundwater recharge basins; percolation ponds built for wastewater
recycling; and water distributary structures built for wastewater
recycling.
(3) In this definition, the following terms apply:
(i) Adjacent. The term adjacent means bordering, contiguous, or
neighboring a water identified in paragraphs (1)(i) through (v) of this
definition, including waters separated by constructed dikes or barriers,
natural river berms, beach dunes, and the like. For purposes of
adjacency, an open water such as a pond or lake includes any wetlands
within or abutting its ordinary high water mark. Adjacency is not
limited to waters located laterally to a water identified in paragraphs
(1)(i) through (v) of this definition. Adjacent waters also include all
waters that connect segments of a water identified in paragraphs (1)(i)
through (v) or are located at the head of a water identified in
paragraphs (1)(i) through (v) of this definition and are bordering,
contiguous, or neighboring such water. Waters being used for established
normal farming, ranching, and silviculture activities (33 U.S.C.
1344(f)) are not adjacent.
(ii) Neighboring. The term neighboring means:
(A) All waters located within 100 feet of the ordinary high water
mark of a water identified in paragraphs (1)(i) through (v) of this
definition. The entire water is neighboring if a portion is located
within 100 feet of the ordinary high water mark;
(B) All waters located within the 100-year floodplain of a water
identified in paragraphs (1)(i) through (v) of this definition and not
more than 1,500 feet from the ordinary high water mark of such water.
The entire water is neighboring if a portion is located within 1,500
feet of the ordinary high water mark and within the 100-year floodplain;
(C) All waters located within 1,500 feet of the high tide line of a
water identified in paragraphs (1)(i) or (1)(iii) of this definition,
and all waters within 1,500 feet of the ordinary high water mark of the
Great Lakes. The entire water is neighboring if a portion is located
within 1,500 feet of the high tide line or within 1,500 feet of the
ordinary high water mark of the Great Lakes.
(iii) Tributary and tributaries. The terms tributary and tributaries
each mean a water that contributes flow, either directly or through
another water (including an impoundment identified in paragraph (1)(iv)
of this definition), to a water identified in paragraphs (1)(i) through
(iii) of this definition that is characterized by the presence of the
physical indicators of a bed and banks and an ordinary high water mark.
These physical indicators demonstrate there is volume, frequency, and
duration of flow sufficient to create a bed and banks and an ordinary
high water mark, and thus to qualify as a tributary. A tributary can be
a natural, man-altered, or man-made water and includes waters such as
rivers, streams, canals, and ditches not excluded under paragraph (2) of
this definition. A water that otherwise
[[Page 30]]
qualifies as a tributary under this definition does not lose its status
as a tributary if, for any length, there are one or more constructed
breaks (such as bridges, culverts, pipes, or dams), or one or more
natural breaks (such as wetlands along the run of a stream, debris
piles, boulder fields, or a stream that flows underground) so long as a
bed and banks and an ordinary high water mark can be identified upstream
of the break. A water that otherwise qualifies as a tributary under this
definition does not lose its status as a tributary if it contributes
flow through a water of the United States that does not meet the
definition of tributary or through a non-jurisdictional water to a water
identified in paragraphs (1)(i) through (iii) of this definition.
(iv) Wetlands. The term wetlands means those areas that are
inundated or saturated by surface or groundwater at a frequency and
duration sufficient to support, and that under normal circumstances do
support, a prevalence of vegetation typically adapted for life in
saturated soil conditions. Wetlands generally include swamps, marshes,
bogs, and similar areas.
(v) Significant nexus. The term significant nexus means that a
water, including wetlands, either alone or in combination with other
similarly situated waters in the region, significantly affects the
chemical, physical, or biological integrity of a water identified in
paragraphs (1)(i) through (iii) of this definition. The term ``in the
region'' means the watershed that drains to the nearest water identified
in paragraphs (1)(i) through (iii) of this definition. For an effect to
be significant, it must be more than speculative or insubstantial.
Waters are similarly situated when they function alike and are
sufficiently close to function together in affecting downstream waters.
For purposes of determining whether or not a water has a significant
nexus, the water's effect on downstream (1)(i) through (iii) waters
shall be assessed by evaluating the aquatic functions identified in
paragraphs (3)(v)(A) through (I) of this definition. A water has a
significant nexus when any single function or combination of functions
performed by the water, alone or together with similarly situated waters
in the region, contributes significantly to the chemical, physical, or
biological integrity of the nearest water identified in paragraphs
(1)(i) through (iii) of this section. Functions relevant to the
significant nexus evaluation are the following:
(A) Sediment trapping,
(B) Nutrient recycling,
(C) Pollutant trapping, transformation, filtering, and transport,
(D) Retention and attenuation of flood waters,
(E) Runoff storage,
(F) Contribution of flow,
(G) Export of organic matter,
(H) Export of food resources, and
(I) Provision of life cycle dependent aquatic habitat (such as
foraging, feeding, nesting, breeding, spawning, or use as a nursery
area) for species located in a water identified in paragraphs (1)(i)
through (iii) of this definition.
(vi) Ordinary high water mark. The term ordinary high water mark
means that line on the shore established by the fluctuations of water
and indicated by physical characteristics such as a clear, natural line
impressed on the bank, shelving, changes in the character of soil,
destruction of terrestrial vegetation, the presence of litter and
debris, or other appropriate means that consider the characteristics of
the surrounding areas.
(vii) High tide line. The term high tide line means the line of
intersection of the land with the water's surface at the maximum height
reached by a rising tide. The high tide line may be determined, in the
absence of actual data, by a line of oil or scum along shore objects, a
more or less continuous deposit of fine shell or debris on the foreshore
or berm, other physical markings or characteristics, vegetation lines,
tidal gages, or other suitable means that delineate the general height
reached by a rising tide. The line encompasses spring high tides and
other high tides that occur with periodic frequency but does not include
storm surges in which there is a departure from the normal or predicted
reach of the tide due to the piling up of water against a coast by
strong winds such as those accompanying a hurricane or other intense
storm.
[[Page 31]]
(4) Applicability date. This definition is applicable beginning on
February 6, 2020.
Non-petroleum oil means oil of any kind that is not petroleum-based,
including but not limited to: Fats, oils, and greases of animal, fish,
or marine mammal origin; and vegetable oils, including oils from seeds,
nuts, fruits, and kernels.
Offshore facility means any facility of any kind (other than a
vessel or public vessel) located in, on, or under any of the navigable
waters of the United States, and any facility of any kind that is
subject to the jurisdiction of the United States and is located in, on,
or under any other waters.
Oil means oil of any kind or in any form, including, but not limited
to: fats, oils, or greases of animal, fish, or marine mammal origin;
vegetable oils, including oils from seeds, nuts, fruits, or kernels;
and, other oils and greases, including petroleum, fuel oil, sludge,
synthetic oils, mineral oils, oil refuse, or oil mixed with wastes other
than dredged spoil.
Oil-filled operational equipment means equipment that includes an
oil storage container (or multiple containers) in which the oil is
present solely to support the function of the apparatus or the device.
Oil-filled operational equipment is not considered a bulk storage
container, and does not include oil-filled manufacturing equipment
(flow-through process). Examples of oil-filled operational equipment
include, but are not limited to, hydraulic systems, lubricating systems
(e.g., those for pumps, compressors and other rotating equipment,
including pumpjack lubrication systems), gear boxes, machining coolant
systems, heat transfer systems, transformers, circuit breakers,
electrical switches, and other systems containing oil solely to enable
the operation of the device.
Oil Spill Removal Organization means an entity that provides oil
spill response resources, and includes any for-profit or not-for-profit
contractor, cooperative, or in-house response resources that have been
established in a geographic area to provide required response resources.
Onshore facility means any facility of any kind located in, on, or
under any land within the United States, other than submerged lands.
Owner or operator means any person owning or operating an onshore
facility or an offshore facility, and in the case of any abandoned
offshore facility, the person who owned or operated or maintained the
facility immediately prior to such abandonment.
Partially buried tank means a storage container that is partially
inserted or constructed in the ground, but not entirely below grade, and
not completely covered with earth, sand, gravel, asphalt, or other
material. A partially buried tank is considered an aboveground storage
container for purposes of this part.
Permanently closed means any container or facility for which:
(1) All liquid and sludge has been removed from each container and
connecting line; and
(2) All connecting lines and piping have been disconnected from the
container and blanked off, all valves (except for ventilation valves)
have been closed and locked, and conspicuous signs have been posted on
each container stating that it is a permanently closed container and
noting the date of closure.
Person includes an individual, firm, corporation, association, or
partnership.
Petroleum oil means petroleum in any form, including but not limited
to crude oil, fuel oil, mineral oil, sludge, oil refuse, and refined
products.
Produced water container means a storage container at an oil
production facility used to store the produced water after initial oil/
water separation, and prior to reinjection, beneficial reuse, discharge,
or transfer for disposal.
Production facility means all structures (including but not limited
to wells, platforms, or storage facilities), piping (including but not
limited to flowlines or intra-facility gathering lines), or equipment
(including but not limited to workover equipment, separation equipment,
or auxiliary non-transportation-related equipment) used in the
production, extraction, recovery, lifting, stabilization, separation or
treating of oil (including condensate), or associated storage or
measurement,
[[Page 32]]
and is located in an oil or gas field, at a facility. This definition
governs whether such structures, piping, or equipment are subject to a
specific section of this part.
Regional Administrator means the Regional Administrator of the
Environmental Protection Agency, in and for the Region in which the
facility is located.
Repair means any work necessary to maintain or restore a container
to a condition suitable for safe operation, other than that necessary
for ordinary, day-to-day maintenance to maintain the functional
integrity of the container and that does not weaken the container.
Spill Prevention, Control, and Countermeasure Plan; SPCC Plan, or
Plan means the document required by Sec. 112.3 that details the
equipment, workforce, procedures, and steps to prevent, control, and
provide adequate countermeasures to a discharge.
Storage capacity of a container means the shell capacity of the
container.
Transportation-related and non-transportation-related, as applied to
an onshore or offshore facility, are defined in the Memorandum of
Understanding between the Secretary of Transportation and the
Administrator of the Environmental Protection Agency, dated November 24,
1971, (appendix A of this part).
United States means the States, the District of Columbia, the
Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana
Islands, Guam, American Samoa, the U.S. Virgin Islands, and the Pacific
Island Governments.
Vegetable oil means a non-petroleum oil or fat of vegetable origin,
including but not limited to oils and fats derived from plant seeds,
nuts, fruits, and kernels.
Vessel means every description of watercraft or other artificial
contrivance used, or capable of being used, as a means of transportation
on water, other than a public vessel.
Worst case discharge for an onshore non-transportation-related
facility means the largest foreseeable discharge in adverse weather
conditions as determined using the worksheets in appendix D to this
part.
[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; 80 FR 37108, June
29, 2015; 83 FR 5208, Feb. 6, 2018]
Sec. 112.3 Requirement to prepare and implement a Spill Prevention,
Control, and Countermeasure Plan.
The owner or operator or an onshore or offshore facility subject to
this section must prepare in writing and implement a Spill Prevention
Control and Countermeasure Plan (hereafter ``SPCC Plan'' or ``Plan''),''
in accordance with Sec. 112.7 and any other applicable section of this
part.
(a)(1) Except as otherwise provided in this section, if your
facility, or mobile or portable facility, was in operation on or before
August 16, 2002, you must maintain your Plan, but must amend it, if
necessary to ensure compliance with this part, and implement the amended
Plan no later than November 10, 2011. If such a facility becomes
operational after August 16, 2002, through November 10, 2011, and could
reasonably be expected to have a discharge as described in Sec.
112.1(b), you must prepare and implement a Plan on or before November
10, 2011. If such a facility (excluding oil production facilities)
becomes operational after November 10, 2011, and could reasonably be
expected to have a discharge as described in Sec. 112.1(b), you must
prepare and implement a Plan before you begin operations. You are not
required to prepare a new Plan each time you move a mobile or portable
facility to a new site; the Plan may be general. When you move the
mobile or portable facility, you must locate and install it using the
discharge prevention practices outlined in the Plan for the facility.
The Plan is applicable only while the mobile or portable facility is in
a fixed (non-transportation) operating mode.
(2) If your drilling, production or workover facility, including a
mobile or portable facility, is offshore or has an offshore component;
or your onshore facility is required to have and submit a Facility
Response Plan pursuant to 40 CFR 112.20(a), and was in operation on or
before August 16, 2002, you must maintain your Plan, but
[[Page 33]]
must amend it, if necessary to ensure compliance with this part, and
implement the amended Plan no later than November 10, 2010. If such a
facility becomes operational after August 16, 2002, through November 10,
2010, and could reasonably be expected to have a discharge as described
in Sec. 112.1(b), you must prepare and implement a Plan on or before
November 10, 2010. If such a facility (excluding oil production
facilities) becomes operational after November 10, 2010, and could
reasonably be expected to have a discharge as described in Sec.
112.1(b), you must prepare and implement a Plan before you begin
operations. You are not required to prepare a new Plan each time you
move a mobile or portable facility to a new site; the Plan may be
general. When you move the mobile or portable facility, you must locate
and install it using the discharge prevention practices outlined in the
Plan for the facility. The Plan is applicable only while the mobile or
portable facility is in a fixed (non-transportation) operating mode.
(3) If your farm, as defined in Sec. 112.2, was in operation on or
before August 16, 2002, you must maintain your Plan, but must amend it,
if necessary to ensure compliance with this part, and implement the
amended Plan on or before May 10, 2013. If your farm becomes operational
after August 16, 2002, through May 10, 2013, and could reasonably be
expected to have a discharge as described in Sec. 112.1(b), you must
prepare and implement a Plan on or before May 10, 2013. If your farm
becomes operational after May 10, 2013, and could reasonably be expected
to have a discharge as described in Sec. 112.1(b), you must prepare and
implement a Plan before you begin operations.
(b) If your oil production facility as described in paragraph (a)(1)
of this section becomes operational after November 10, 2011, or as
described in paragraph (a)(2) of this section becomes operational after
November 10, 2010, and could reasonably be expected to have a discharge
as described in Sec. 112.1(b), you must prepare and implement a Plan
within six months after you begin operations.
(c) [Reserved]
(d) Except as provided in Sec. 112.6, a licensed Professional
Engineer must review and certify a Plan for it to be effective to
satisfy the requirements of this part.
(1) By means of this certification the Professional Engineer
attests:
(i) That he is familiar with the requirements of this part ;
(ii) That he or his agent has visited and examined the facility;
(iii) That the Plan has been prepared in accordance with good
engineering practice, including consideration of applicable industry
standards, and with the requirements of this part;
(iv) That procedures for required inspections and testing have been
established; and
(v) That the Plan is adequate for the facility.
(vi) That, if applicable, for a produced water container subject to
Sec. 112.9(c)(6), any procedure to minimize the amount of free-phase
oil is designed to reduce the accumulation of free-phase oil and the
procedures and frequency for required inspections, maintenance and
testing have been established and are described in the Plan.
(2) Such certification shall in no way relieve the owner or operator
of a facility of his duty to prepare and fully implement such Plan in
accordance with the requirements of this part.
(e) If you are the owner or operator of a facility for which a Plan
is required under this section, you must:
(1) Maintain a complete copy of the Plan at the facility if the
facility is normally attended at least four hours per day, or at the
nearest field office if the facility is not so attended, and
(2) Have the Plan available to the Regional Administrator for on-
site review during normal working hours.
(f) Extension of time. (1) The Regional Administrator may authorize
an extension of time for the preparation and full implementation of a
Plan, or any amendment thereto, beyond the time permitted for the
preparation, implementation, or amendment of a Plan under this part,
when he finds that the owner or operator of a facility subject to this
section, cannot fully comply with the requirements as a result of either
nonavailability of qualified personnel, or delays in construction or
[[Page 34]]
equipment delivery beyond the control and without the fault of such
owner or operator or his agents or employees.
(2) If you are an owner or operator seeking an extension of time
under paragraph (f)(1) of this section, you may submit a written
extension request to the Regional Administrator. Your request must
include:
(i) A full explanation of the cause for any such delay and the
specific aspects of the Plan affected by the delay;
(ii) A full discussion of actions being taken or contemplated to
minimize or mitigate such delay; and
(iii) A proposed time schedule for the implementation of any
corrective actions being taken or contemplated, including interim dates
for completion of tests or studies, installation and operation of any
necessary equipment, or other preventive measures. In addition you may
present additional oral or written statements in support of your
extension request.
(3) The submission of a written extension request under paragraph
(f)(2) of this section does not relieve you of your obligation to comply
with the requirements of this part. The Regional Administrator may
request a copy of your Plan to evaluate the extension request. When the
Regional Administrator authorizes an extension of time for particular
equipment or other specific aspects of the Plan, such extension does not
affect your obligation to comply with the requirements related to other
equipment or other specific aspects of the Plan for which the Regional
Administrator has not expressly authorized an extension.
(g) Qualified Facilities. The owner or operator of a qualified
facility as defined in this subparagraph may self-certify his facility's
Plan, as provided in Sec. 112.6. A qualified facility is one that meets
the following Tier I or Tier II qualified facility criteria:
(1) A Tier I qualified facility meets the qualification criteria in
paragraph (g)(2) of this section and has no individual aboveground oil
storage container with a capacity greater than 5,000 U.S. gallons.
(2) A Tier II qualified facility is one that has had no single
discharge as described in Sec. 112.1(b) exceeding 1,000 U.S. gallons or
no two discharges as described in Sec. 112.1(b) each exceeding 42 U.S.
gallons within any twelve month period in the three years prior to the
SPCC Plan self-certification date, or since becoming subject to this
part if the facility has been in operation for less than three years
(other than discharges as described in Sec. 112.1(b) that are the
result of natural disasters, acts of war, or terrorism), and 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]
Sec. 112.4 Amendment of Spill Prevention, Control, and
Countermeasure Plan by Regional Administrator.
If you are the owner or operator of a facility subject to this part,
you must:
(a) Notwithstanding compliance with Sec. 112.3, whenever your
facility has discharged more than 1,000 U.S. gallons of oil in a single
discharge as described in Sec. 112.1(b), or discharged more than 42
U.S. gallons of oil in each of two discharges as described in Sec.
112.1(b), occurring within any twelve month period, submit the following
information to the Regional Administrator within 60 days from the time
the facility becomes subject to this section:
(1) Name of the facility;
(2) Your name;
(3) Location of the facility;
(4) Maximum storage or handling capacity of the facility and normal
daily throughput;
(5) Corrective action and countermeasures you have taken, including
a description of equipment repairs and replacements;
(6) An adequate description of the facility, including maps, flow
diagrams, and topographical maps, as necessary;
(7) The cause of such discharge as described in Sec. 112.1(b),
including a failure analysis of the system or subsystem in which the
failure occurred;
(8) Additional preventive measures you have taken or contemplated to
minimize the possibility of recurrence; and
[[Page 35]]
(9) Such other information as the Regional Administrator may
reasonably require pertinent to the Plan or discharge.
(b) Take no action under this section until it applies to your
facility. This section does not apply until the expiration of the time
permitted for the initial preparation and implementation of the Plan
under Sec. 112.3, but not including any amendments to the Plan.
(c) Send to the appropriate agency or agencies in charge of oil
pollution control activities in the State in which the facility is
located a complete copy of all information you provided to the Regional
Administrator under paragraph (a) of this section. Upon receipt of the
information such State agency or agencies may conduct a review and make
recommendations to the Regional Administrator as to further procedures,
methods, equipment, and other requirements necessary to prevent and to
contain discharges from your facility.
(d) Amend your Plan, if after review by the Regional Administrator
of the information you submit under paragraph (a) of this section, or
submission of information to EPA by the State agency under paragraph (c)
of this section, or after on-site review of your Plan, the Regional
Administrator requires that you do so. The Regional Administrator may
require you to amend your Plan if he finds that it does not meet the
requirements of this part or that amendment is necessary to prevent and
contain discharges from your facility.
(e) Act in accordance with this paragraph when the Regional
Administrator proposes by certified mail or by personal delivery that
you amend your SPCC Plan. If the owner or operator is a corporation, he
must also notify by mail the registered agent of such corporation, if
any and if known, in the State in which the facility is located. The
Regional Administrator must specify the terms of such proposed
amendment. Within 30 days from receipt of such notice, you may submit
written information, views, and arguments on the proposed amendment.
After considering all relevant material presented, the Regional
Administrator must either notify you of any amendment required or
rescind the notice. You must amend your Plan as required within 30 days
after such notice, unless the Regional Administrator, for good cause,
specifies another effective date. You must implement the amended Plan as
soon as possible, but not later than six months after you amend your
Plan, unless the Regional Administrator specifies another date.
(f) If you appeal a decision made by the Regional Administrator
requiring an amendment to an SPCC Plan, send the appeal to the EPA
Administrator in writing within 30 days of receipt of the notice from
the Regional Administrator requiring the amendment under paragraph (e)
of this section. You must send a complete copy of the appeal to the
Regional Administrator at the time you make the appeal. The appeal must
contain a clear and concise statement of the issues and points of fact
in the case. It may also contain additional information from you, or
from any other person. The EPA Administrator may request additional
information from you, or from any other person. The EPA Administrator
must render a decision within 60 days of receiving the appeal and must
notify you of his decision.
Sec. 112.5 Amendment of Spill Prevention, Control, and
Countermeasure Plan by owners or operators.
If you are the owner or operator of a facility subject to this part,
you must:
(a) Amend the SPCC Plan for your facility in accordance with the
general requirements in Sec. 112.7, and with any specific section of
this part applicable to your facility, when there is a change in the
facility design, construction, operation, or maintenance that materially
affects its potential for a discharge as described in Sec. 112.1(b).
Examples of changes that may require amendment of the Plan include, but
are not limited to: commissioning or decommissioning containers;
replacement, reconstruction, or movement of containers; reconstruction,
replacement, or installation of piping systems; construction or
demolition that might alter secondary containment structures; changes of
product or service; or revision of standard operation or maintenance
procedures at a facility. An amendment made under this section
[[Page 36]]
must be prepared within six months, and implemented as soon as possible,
but not later than six months following preparation of the amendment.
(b) Notwithstanding compliance with paragraph (a) of this section,
complete a review and evaluation of the SPCC Plan at least once every
five years from the date your facility becomes subject to this part; or,
if your facility was in operation on or before August 16, 2002, five
years from the date your last review was required under this part. As a
result of this review and evaluation, you must amend your SPCC Plan
within six months of the review to include more effective prevention and
control technology if the technology has been field-proven at the time
of the review and will significantly reduce the likelihood of a
discharge as described in Sec. 112.1(b) from the facility. You must
implement any amendment as soon as possible, but not later than six
months following preparation of any amendment. You must document your
completion of the review and evaluation, and must sign a statement as to
whether you will amend the Plan, either at the beginning or end of the
Plan or in a log or an appendix to the Plan. The following words will
suffice, ``I have completed review and evaluation of the SPCC Plan for
(name of facility) on (date), and will (will not) amend the Plan as a
result.''
(c) Except as provided in Sec. 112.6, have a Professional Engineer
certify any technical amendments to your Plan in accordance with Sec.
112.3(d).
[67 FR 47140, July 17, 2002, as amended at 71 FR 77291, Dec. 26, 2006;
73 FR 74301, Dec. 5, 2008; 74 FR 58809, Nov. 13, 2009]
Sec. 112.6 Qualified Facilities Plan Requirements.
Qualified facilities meeting the Tier I applicability criteria in
Sec. 112.3(g)(1) are subject to the requirements in paragraph (a) of
this section. Qualified facilities meeting the Tier II applicability
criteria in Sec. 112.3(g)(2) are subject to the requirements in
paragraph (b) of this section.
(a) Tier I Qualified Facilities--(1) Preparation and Self-
Certification of the Plan. If you are an owner or operator of a facility
that meets the Tier I qualified facility criteria in Sec. 112.3(g)(1),
you must either: comply with the requirements of paragraph (a)(3) of
this section; or prepare and implement a Plan meeting requirements of
paragraph (b) of this section; or prepare and implement a Plan meeting
the general Plan requirements in Sec. 112.7 and applicable requirements
in subparts B and C, including having the Plan certified by a
Professional Engineer as required under Sec. 112.3(d). If you do not
follow the appendix G template, you must prepare an equivalent Plan that
meets all of the applicable requirements listed in this part, and you
must supplement it with a section cross-referencing the location of
requirements listed in this part and the equivalent requirements in the
other prevention plan. To complete the template in appendix G, you must
certify that:
(i) You are familiar with the applicable requirements of 40 CFR part
112;
(ii) You have visited and examined the facility;
(iii) You prepared the Plan in accordance with accepted and sound
industry practices and standards;
(iv) You have established procedures for required inspections and
testing in accordance with industry inspection and testing standards or
recommended practices;
(v) You will fully implement the Plan;
(vi) The facility meets the qualification criteria in Sec.
112.3(g)(1);
(vii) The Plan does not deviate from any requirement of this part as
allowed by Sec. 112.7(a)(2) and 112.7(d) or include measures pursuant
to Sec. 112.9(c)(6) for produced water containers and any associated
piping; and
(viii) The Plan and individual(s) responsible for implementing this
Plan have the approval of management, and the facility owner or operator
has committed the necessary resources to fully implement this Plan.
(2) Technical Amendments. You must certify any technical amendments
to your Plan in accordance with paragraph (a)(1) of this section when
there is a change in the facility design, construction, operation, or
maintenance that affects its potential for a discharge as described in
Sec. 112.1(b). If the facility change results in the facility
[[Page 37]]
no longer meeting the Tier I qualifying criteria in Sec. 112.3(g)(1)
because an individual oil storage container capacity exceeds 5,000 U.S.
gallons or the facility capacity exceeds 10,000 U.S. gallons in
aggregate aboveground storage capacity, within six months following
preparation of the amendment, you must either:
(i) Prepare and implement a Plan in accordance with Sec. 112.6(b)
if you meet the Tier II qualified facility criteria in Sec.
112.3(g)(2); or
(ii) Prepare and implement a Plan in accordance with the general
Plan requirements in Sec. 112.7, and applicable requirements in
subparts B and C, including having the Plan certified by a Professional
Engineer as required under Sec. 112.3(d).
(3) Plan Template and Applicable Requirements. Prepare and implement
an SPCC Plan that meets the following requirements under Sec. 112.7 and
in subparts B and C of this part: introductory paragraph of Sec. Sec.
112.7, 112.7(a)(3)(i), 112.7(a)(3)(iv), 112.7(a)(3)(vi), 112.7(a)(4),
112.7(a)(5), 112.7(c), 112.7(e), 112.7(f), 112.7(g), 112.7(k),
112.8(b)(1), 112.8(b)(2), 112.8(c)(1), 112.8(c)(3), 112.8(c)(4),
112.8(c)(5), 112.8(c)(6), 112.8(c)(10), 112.8(d)(4), 112.9(b),
112.9(c)(1), 112.9(c)(2), 112.9(c)(3), 112.9(c)(4), 112.9(c)(5),
112.9(d)(1), 112.9(d)(3), 112.9(d)(4), 112.10(b), 112.10(c), 112.10(d),
112.12(b)(1), 112.12(b)(2), 112.12(c)(1), 112.12(c)(3), 112.12(c)(4),
112.12(c)(5), 112.12(c)(6), 112.12(c)(10), and 112.12(d)(4). The
template in appendix G to this part has been developed to meet the
requirements of 40 CFR part 112 and, when completed and signed by the
owner or operator, may be used as the SPCC Plan. Additionally, you must
meet the following requirements:
(i) Failure analysis, in lieu of the requirements in Sec. 112.7(b).
Where experience indicates a reasonable potential for equipment failure
(such as loading or unloading equipment, tank overflow, rupture, or
leakage, or any other equipment known to be a source of discharge),
include in your Plan a prediction of the direction and total quantity of
oil which could be discharged from the facility as a result of each type
of major equipment failure.
(ii) Bulk storage container secondary containment, in lieu of the
requirements in Sec. Sec. 112.8(c)(2) and (c)(11) and 112.12(c)(2) and
(c)(11). Construct all bulk storage container installations (except
mobile refuelers and other non-transportation-related tank trucks),
including mobile or portable oil storage containers, so that you provide
a secondary means of containment for the entire capacity of the largest
single container plus additional capacity to contain precipitation.
Dikes, containment curbs, and pits are commonly employed for this
purpose. You may also use an alternative system consisting of a drainage
trench enclosure that must be arranged so that any discharge will
terminate and be safely confined in a catchment basin or holding pond.
Position or locate mobile or portable oil storage containers to prevent
a discharge as described in Sec. 112.1(b).
(iii) Overfill prevention, in lieu of the requirements in Sec. Sec.
112.8(c)(8) and 112.12(c)(8). Ensure that each container is provided
with a system or documented procedure to prevent overfills of the
container, describe the system or procedure in the SPCC Plan and
regularly test to ensure proper operation or efficacy.
(b) Tier II Qualified Facilities--(1) Preparation and Self-
Certification of Plan. If you are the owner or operator of a facility
that meets the Tier II qualified facility criteria in Sec. 112.3(g)(2),
you may choose to self-certify your Plan. You must certify in the Plan
that:
(i) You are familiar with the requirements of this part;
(ii) You have visited and examined the facility;
(iii) The Plan has been prepared in accordance with accepted and
sound industry practices and standards, and with the requirements of
this part;
(iv) Procedures for required inspections and testing have been
established;
(v) You will fully implement the Plan;
(vi) The facility meets the qualification criteria set forth under
Sec. 112.3(g)(2);
(vii) The Plan does not deviate from any requirement of this part as
allowed by Sec. 112.7(a)(2) and 112.7(d) or include measures pursuant
to Sec. 112.9(c)(6) for
[[Page 38]]
produced water containers and any associated piping, except as provided
in paragraph (b)(3) of this section; and
(viii) The Plan and individual(s) responsible for implementing the
Plan have the full approval of management and the facility owner or
operator has committed the necessary resources to fully implement the
Plan.
(2) Technical Amendments. If you self-certify your Plan pursuant to
paragraph (b)(1) of this section, you must certify any technical
amendments to your Plan in accordance with paragraph (b)(1) of this
section when there is a change in the facility design, construction,
operation, or maintenance that affects its potential for a discharge as
described in Sec. 112.1(b), except:
(i) If a Professional Engineer certified a portion of your Plan in
accordance with paragraph (b)(4) of this section, and the technical
amendment affects this portion of the Plan, you must have the amended
provisions of your Plan certified by a Professional Engineer in
accordance with paragraph (b)(4)(ii) of this section.
(ii) If the change is such that the facility no longer meets the
Tier II qualifying criteria in Sec. 112.3(g)(2) because it exceeds
10,000 U.S. gallons in aggregate aboveground storage capacity you must,
within six months following the change, prepare and implement a Plan in
accordance with the general Plan requirements in Sec. 112.7 and the
applicable requirements in subparts B and C of this part, including
having the Plan certified by a Professional Engineer as required under
Sec. 112.3(d).
(3) Applicable Requirements. Except as provided in this paragraph,
your self-certified SPCC Plan must comply with Sec. 112.7 and the
applicable requirements in subparts B and C of this part:
(i) Environmental Equivalence. Your Plan may not include alternate
methods which provide environmental equivalence pursuant to Sec.
112.7(a)(2), unless each alternate method has been reviewed and
certified in writing by a Professional Engineer, as provided in
paragraph (b)(4) of this section.
(ii) Impracticability. Your Plan may not include any determinations
that secondary containment is impracticable and provisions in lieu of
secondary containment pursuant to Sec. 112.7(d), unless each such
determination and alternate measure has been reviewed and certified in
writing by a Professional Engineer, as provided in paragraph (b)(4) of
this section.
(iii) Produced Water Containers. Your Plan may not include any
alternative procedures for skimming produced water containers in lieu of
sized secondary containment pursuant to Sec. 112.9(c)(6), unless they
have been reviewed and certified in writing by a Professional Engineer,
as provided in paragraph (b)(4) of this section.
(4) Professional Engineer Certification of Portions of a Qualified
Facility's Self-Certified Plan.
(i) As described in paragraph (b)(3) of this section, the facility
owner or operator may not self-certify alternative measures allowed
under Sec. 112.7(a)(2) or (d), that are included in the facility's
Plan. Such measures must be reviewed and certified, in writing, by a
licensed Professional Engineer. For each alternative measure allowed
under Sec. 112.7(a)(2), the Plan must be accompanied by a written
statement by a Professional Engineer that states the reason for
nonconformance and describes the alternative method and how it provides
equivalent environmental protection in accordance with Sec.
112.7(a)(2). For each determination of impracticability of secondary
containment pursuant to Sec. 112.7(d), the Plan must clearly explain
why secondary containment measures are not practicable at this facility
and provide the alternative measures required in Sec. 112.7(d) in lieu
of secondary containment. By certifying each measure allowed under Sec.
112.7(a)(2) and (d), the Professional Engineer attests:
(A) That he is familiar with the requirements of this part;
(B) That he or his agent has visited and examined the facility; and
(C) That the alternative method of environmental equivalence in
accordance with Sec. 112.7(a)(2) or the determination of
impracticability and alternative measures in accordance with Sec.
112.7(d) is consistent with good engineering practice, including
consideration of applicable industry standards, and with the
requirements of this part.
[[Page 39]]
(ii) As described in paragraph (b)(3) of this section, the facility
owner or operator may not self-certify measures as described in Sec.
112.9(c)(6) for produced water containers and any associated piping.
Such measures must be reviewed and certified, in writing, by a licensed
Professional Engineer, in accordance with Sec. 112.3(d)(1)(vi).
(iii) The review and certification by the Professional Engineer
under this paragraph is limited to the alternative method which achieves
equivalent environmental protection pursuant to Sec. 112.7(a)(2); to
the impracticability determination and measures in lieu of secondary
containment pursuant to Sec. 112.7(d); or the measures pursuant to
Sec. 112.9(c)(6) for produced water containers and any associated
piping and appurtenances downstream from the container.
[73 FR 74302, Dec. 5, 2008, as amended at 74 FR 58810, Nov. 13, 2009]
Sec. 112.7 General requirements for Spill Prevention, Control,
and Countermeasure Plans.
If you are the owner or operator of a facility subject to this part
you must prepare a Plan in accordance with good engineering practices.
The Plan must have the full approval of management at a level of
authority to commit the necessary resources to fully implement the Plan.
You must prepare the Plan in writing. If you do not follow the sequence
specified in this section for the Plan, you must prepare an equivalent
Plan acceptable to the Regional Administrator that meets all of the
applicable requirements listed in this part, and you must supplement it
with a section cross-referencing the location of requirements listed in
this part and the equivalent requirements in the other prevention plan.
If the Plan calls for additional facilities or procedures, methods, or
equipment not yet fully operational, you must discuss these items in
separate paragraphs, and must explain separately the details of
installation and operational start-up. As detailed elsewhere in this
section, you must also:
(a)(1) Include a discussion of your facility's conformance with the
requirements listed in this part.
(2) Comply with all applicable requirements listed in this part.
Except as provided in Sec. 112.6, your Plan may deviate from the
requirements in paragraphs (g), (h)(2) and (3), and (i) of this section
and the requirements in subparts B and C of this part, except the
secondary containment requirements in paragraphs (c) and (h)(1) of this
section, and Sec. Sec. 112.8(c)(2), 112.8(c)(11), 112.9(c)(2),
112.9(d)(3), 112.10(c), 112.12(c)(2), and 112.12(c)(11), where
applicable to a specific facility, if you provide equivalent
environmental protection by some other means of spill prevention,
control, or countermeasure. Where your Plan does not conform to the
applicable requirements in paragraphs (g), (h)(2) and (3), and (i) of
this section, or the requirements of subparts B and C of this part,
except the secondary containment requirements in paragraph (c) and
(h)(1) of this section, and Sec. Sec. 112.8(c)(2), 112.8(c)(11),
112.9(c)(2), 112.10(c), 112.12(c)(2), and 112.12(c)(11), you must state
the reasons for nonconformance in your Plan and describe in detail
alternate methods and how you will achieve equivalent environmental
protection. If the Regional Administrator determines that the measures
described in your Plan do not provide equivalent environmental
protection, he may require that you amend your Plan, following the
procedures in Sec. 112.4(d) and (e).
(3) Describe in your Plan the physical layout of the facility and
include a facility diagram, which must mark the location and contents of
each fixed oil storage container and the storage area where mobile or
portable containers are located. The facility diagram must identify the
location of and mark as ``exempt'' underground tanks that are otherwise
exempted from the requirements of this part under Sec. 112.1(d)(4). The
facility diagram must also include all transfer stations and connecting
pipes, including intra-facility gathering lines that are otherwise
exempted from the requirements of this part under Sec. 112.1(d)(11).
You must also address in your Plan:
(i) The type of oil in each fixed container and its storage
capacity. For mobile or portable containers, either
[[Page 40]]
provide the type of oil and storage capacity for each container or
provide an estimate of the potential number of mobile or portable
containers, the types of oil, and anticipated storage capacities;
(ii) Discharge prevention measures including procedures for routine
handling of products (loading, unloading, and facility transfers, etc.);
(iii) Discharge or drainage controls such as secondary containment
around containers and other structures, equipment, and procedures for
the control of a discharge;
(iv) Countermeasures for discharge discovery, response, and cleanup
(both the facility's capability and those that might be required of a
contractor);
(v) Methods of disposal of recovered materials in accordance with
applicable legal requirements; and
(vi) Contact list and phone numbers for the facility response
coordinator, National Response Center, cleanup contractors with whom you
have an agreement for response, and all appropriate Federal, State, and
local agencies who must be contacted in case of a discharge as described
in Sec. 112.1(b).
(4) Unless you have submitted a response plan under Sec. 112.20,
provide information and procedures in your Plan to enable a person
reporting a discharge as described in Sec. 112.1(b) to relate
information on the exact address or location and phone number of the
facility; the date and time of the discharge, the type of material
discharged; estimates of the total quantity discharged; estimates of the
quantity discharged as described in Sec. 112.1(b); the source of the
discharge; a description of all affected media; the cause of the
discharge; any damages or injuries caused by the discharge; actions
being used to stop, remove, and mitigate the effects of the discharge;
whether an evacuation may be needed; and, the names of individuals and/
or organizations who have also been contacted.
(5) Unless you have submitted a response plan under Sec. 112.20,
organize portions of the Plan describing procedures you will use when a
discharge occurs in a way that will make them readily usable in an
emergency, and include appropriate supporting material as appendices.
(b) Where experience indicates a reasonable potential for equipment
failure (such as loading or unloading equipment, tank overflow, rupture,
or leakage, or any other equipment known to be a source of a discharge),
include in your Plan a prediction of the direction, rate of flow, and
total quantity of oil which could be discharged from the facility as a
result of each type of major equipment failure.
(c) Provide appropriate containment and/or diversionary structures
or equipment to prevent a discharge as described in Sec. 112.1(b),
except as provided in paragraph (k) of this section for qualified oil-
filled operational equipment, and except as provided in Sec.
112.9(d)(3) for flowlines and intra-facility gathering lines at an oil
production facility. The entire containment system, including walls and
floor, must be capable of containing oil and must be constructed so that
any discharge from a primary containment system, such as a tank, will
not escape the containment system before cleanup occurs. In determining
the method, design, and capacity for secondary containment, you need
only to address the typical failure mode, and the most likely quantity
of oil that would be discharged. Secondary containment may be either
active or passive in design. At a minimum, you must use one of the
following prevention systems or its equivalent:
(1) For onshore facilities:
(i) Dikes, berms, or retaining walls sufficiently impervious to
contain oil;
(ii) Curbing or drip pans;
(iii) Sumps and collection systems;
(iv) Culverting, gutters, or other drainage systems;
(v) Weirs, booms, or other barriers;
(vi) Spill diversion ponds;
(vii) Retention ponds; or
(viii) Sorbent materials.
(2) For offshore facilities:
(i) Curbing or drip pans; or
(ii) Sumps and collection systems.
(d) Provided your Plan is certified by a licensed Professional
Engineer under Sec. 112.3(d), or, in the case of a qualified facility
that meets the criteria in Sec. 112.3(g), the relevant sections of your
[[Page 41]]
Plan are certified by a licensed Professional Engineer under Sec.
112.6(d), if you determine that the installation of any of the
structures or pieces of equipment listed in paragraphs (c) and (h)(1) of
this section, and Sec. Sec. 112.8(c)(2), 112.8(c)(11), 112.9(c)(2),
112.10(c), 112.12(c)(2), and 112.12(c)(11) to prevent a discharge as
described in Sec. 112.1(b) from any onshore or offshore facility is not
practicable, you must clearly explain in your Plan why such measures are
not practicable; for bulk storage containers, conduct both periodic
integrity testing of the containers and periodic integrity and leak
testing of the valves and piping; and, unless you have submitted a
response plan under Sec. 112.20, provide in your Plan the following:
(1) An oil spill contingency plan following the provisions of part
109 of this chapter.
(2) A written commitment of manpower, equipment, and materials
required to expeditiously control and remove any quantity of oil
discharged that may be harmful.
(e) Inspections, tests, and records. Conduct inspections and tests
required by this part in accordance with written procedures that you or
the certifying engineer develop for the facility. You must keep these
written procedures and a record of the inspections and tests, signed by
the appropriate supervisor or inspector, with the SPCC Plan for a period
of three years. Records of inspections and tests kept under usual and
customary business practices will suffice for purposes of this
paragraph.
(f) Personnel, training, and discharge prevention procedures. (1) At
a minimum, train your oil-handling personnel in the operation and
maintenance of equipment to prevent discharges; discharge procedure
protocols; applicable pollution control laws, rules, and regulations;
general facility operations; and, the contents of the facility SPCC
Plan.
(2) Designate a person at each applicable facility who is
accountable for discharge prevention and who reports to facility
management.
(3) Schedule and conduct discharge prevention briefings for your
oil-handling personnel at least once a year to assure adequate
understanding of the SPCC Plan for that facility. Such briefings must
highlight and describe known discharges as described in Sec. 112.1(b)
or failures, malfunctioning components, and any recently developed
precautionary measures.
(g) Security (excluding oil production facilities). Describe in your
Plan how you secure and control access to the oil handling, processing
and storage areas; secure master flow and drain valves; prevent
unauthorized access to starter controls on oil pumps; secure out-of-
service and loading/unloading connections of oil pipelines; and address
the appropriateness of security lighting to both prevent acts of
vandalism and assist in the discovery of oil discharges.
(h) Facility tank car and tank truck loading/unloading rack
(excluding offshore facilities).
(1) Where loading/unloading rack drainage does not flow into a
catchment basin or treatment facility designed to handle discharges, use
a quick drainage system for tank car or tank truck loading/unloading
racks. You must design any containment system to hold at least the
maximum capacity of any single compartment of a tank car or tank truck
loaded or unloaded at the facility.
(2) Provide an interlocked warning light or physical barrier system,
warning signs, wheel chocks or vehicle brake interlock system in the
area adjacent to a loading/unloading rack, to prevent vehicles from
departing before complete disconnection of flexible or fixed oil
transfer lines.
(3) Prior to filling and departure of any tank car or tank truck,
closely inspect for discharges the lowermost drain and all outlets of
such vehicles, and if necessary, ensure that they are tightened,
adjusted, or replaced to prevent liquid discharge while in transit.
(i) If a field-constructed aboveground container undergoes a repair,
alteration, reconstruction, or a change in service that might affect the
risk of a discharge or failure due to brittle fracture or other
catastrophe, or has discharged oil or failed due to brittle fracture
failure or other catastrophe, evaluate the container for risk of
discharge or failure due to brittle fracture or other catastrophe, and
as necessary, take appropriate action.
[[Page 42]]
(j) In addition to the minimal prevention standards listed under
this section, include in your Plan a complete discussion of conformance
with the applicable requirements and other effective discharge
prevention and containment procedures listed in this part or any
applicable more stringent State rules, regulations, and guidelines.
(k) Qualified Oil-filled Operational Equipment. The owner or
operator of a facility with oil-filled operational equipment that meets
the qualification criteria in paragraph (k)(1) of this sub-section may
choose to implement for this qualified oil-filled operational equipment
the alternate requirements as described in paragraph (k)(2) of this sub-
section in lieu of general secondary containment required in paragraph
(c) of this section.
(1) Qualification Criteria--Reportable Discharge History: The owner
or operator of a facility that has had no single discharge as described
in Sec. 112.1(b) from any oil-filled operational equipment exceeding
1,000 U.S. gallons or no two discharges as described in Sec. 112.1(b)
from any oil-filled operational equipment each exceeding 42 U.S. gallons
within any twelve month period in the three years prior to the SPCC Plan
certification date, or since becoming subject to this part if the
facility has been in operation for less than three years (other than oil
discharges as described in Sec. 112.1(b) that are the result of natural
disasters, acts of war or terrorism); and
(2) Alternative Requirements to General Secondary Containment. If
secondary containment is not provided for qualified oil-filled
operational equipment pursuant to paragraph (c) of this section, the
owner or operator of a facility with qualified oil-filled operational
equipment must:
(i) Establish and document the facility procedures for inspections
or a monitoring program to detect equipment failure and/or a discharge;
and
(ii) Unless you have submitted a response plan under Sec. 112.20,
provide in your Plan the following:
(A) An oil spill contingency plan following the provisions of part
109 of this chapter.
(B) A written commitment of manpower, equipment, and materials
required to expeditiously control and remove any quantity of oil
discharged that may be harmful.
[67 FR 47140, July 17, 2002, as amended at 71 FR 77292, Dec. 26, 2006;
73 FR 74303, Dec. 5, 2008; 74 FR 58810, Nov. 13, 2009]
Subpart B_Requirements for Petroleum Oils and Non-Petroleum Oils, Except
Animal Fats and Oils and Greases, and Fish and Marine Mammal Oils; and
Vegetable Oils (Including Oils from Seeds, Nuts, Fruits, and Kernels)
Source: 67 FR 47146, July 17, 2002, unless otherwise noted.
Sec. 112.8 Spill Prevention, Control, and Countermeasure Plan
requirements for onshore facilities (excluding production
facilities).
If you are the owner or operator of an onshore facility (excluding a
production facility), you must:
(a) Meet the general requirements for the Plan listed under Sec.
112.7, and the specific discharge prevention and containment procedures
listed in this section.
(b) Facility drainage. (1) Restrain drainage from diked storage
areas by valves to prevent a discharge into the drainage system or
facility effluent treatment system, except where facility systems are
designed to control such discharge. You may empty diked areas by pumps
or ejectors; however, you must manually activate these pumps or ejectors
and must inspect the condition of the accumulation before starting, to
ensure no oil will be discharged.
(2) Use valves of manual, open-and-closed design, for the drainage
of diked areas. You may not use flapper-type drain valves to drain diked
areas. If your facility drainage drains directly into a watercourse and
not into an on-site wastewater treatment plant, you must inspect and may
drain uncontaminated retained stormwater, as provided in paragraphs
(c)(3)(ii), (iii), and (iv) of this section.
(3) Design facility drainage systems from undiked areas with a
potential for
[[Page 43]]
a discharge (such as where piping is located outside containment walls
or where tank truck discharges may occur outside the loading area) to
flow into ponds, lagoons, or catchment basins designed to retain oil or
return it to the facility. You must not locate catchment basins in areas
subject to periodic flooding.
(4) If facility drainage is not engineered as in paragraph (b)(3) of
this section, equip the final discharge of all ditches inside the
facility with a diversion system that would, in the event of an
uncontrolled discharge, retain oil in the facility.
(5) Where drainage waters are treated in more than one treatment
unit and such treatment is continuous, and pump transfer is needed,
provide two ``lift'' pumps and permanently install at least one of the
pumps. Whatever techniques you use, you must engineer facility drainage
systems to prevent a discharge as described in Sec. 112.1(b) in case
there is an equipment failure or human error at the facility.
(c) Bulk storage containers. (1) Not use a container for the storage
of oil unless its material and construction are compatible with the
material stored and conditions of storage such as pressure and
temperature.
(2) Construct all bulk storage tank installations (except mobile
refuelers and other non-transportation-related tank trucks) so that you
provide a secondary means of containment for the entire capacity of the
largest single container and sufficient freeboard to contain
precipitation. You must ensure that diked areas are sufficiently
impervious to contain discharged oil. Dikes, containment curbs, and pits
are commonly employed for this purpose. You may also use an alternative
system consisting of a drainage trench enclosure that must be arranged
so that any discharge will terminate and be safely confined in a
facility catchment basin or holding pond.
(3) Not allow drainage of uncontaminated rainwater from the diked
area into a storm drain or discharge of an effluent into an open
watercourse, lake, or pond, bypassing the facility treatment system
unless you:
(i) Normally keep the bypass valve sealed closed.
(ii) Inspect the retained rainwater to ensure that its presence will
not cause a discharge as described in Sec. 112.1(b).
(iii) Open the bypass valve and reseal it following drainage under
responsible supervision; and
(iv) Keep adequate records of such events, for example, any records
required under permits issued in accordance with Sec. Sec. 122.41(j)(2)
and 122.41(m)(3) of this chapter.
(4) Protect any completely buried metallic storage tank installed on
or after January 10, 1974 from corrosion by coatings or cathodic
protection compatible with local soil conditions. You must regularly
leak test such completely buried metallic storage tanks.
(5) Not use partially buried or bunkered metallic tanks for the
storage of oil, unless you protect the buried section of the tank from
corrosion. You must protect partially buried and bunkered tanks from
corrosion by coatings or cathodic protection compatible with local soil
conditions.
(6) Test or inspect each aboveground container for integrity on a
regular schedule and whenever you make material repairs. You must
determine, in accordance with industry standards, the appropriate
qualifications for personnel performing tests and inspections, the
frequency and type of testing and inspections, which take into account
container size, configuration, and design (such as containers that are:
shop-built, field-erected, skid-mounted, elevated, equipped with a
liner, double-walled, or partially buried). Examples of these integrity
tests include, but are not limited to: visual inspection, hydrostatic
testing, radiographic testing, ultrasonic testing, acoustic emissions
testing, or other systems of non-destructive testing. You must keep
comparison records and you must also inspect the container's supports
and foundations. In addition, you must frequently inspect the outside of
the container for signs of deterioration, discharges, or accumulation of
oil inside diked areas. Records of inspections and tests kept under
usual and customary business practices satisfy the recordkeeping
requirements of this paragraph.
[[Page 44]]
(7) Control leakage through defective internal heating coils by
monitoring the steam return and exhaust lines for contamination from
internal heating coils that discharge into an open watercourse, or pass
the steam return or exhaust lines through a settling tank, skimmer, or
other separation or retention system.
(8) Engineer or update each container installation in accordance
with good engineering practice to avoid discharges. You must provide at
least one of the following devices:
(i) High liquid level alarms with an audible or visual signal at a
constantly attended operation or surveillance station. In smaller
facilities an audible air vent may suffice.
(ii) High liquid level pump cutoff devices set to stop flow at a
predetermined container content level.
(iii) Direct audible or code signal communication between the
container gauger and the pumping station.
(iv) A fast response system for determining the liquid level of each
bulk storage container such as digital computers, telepulse, or direct
vision gauges. If you use this alternative, a person must be present to
monitor gauges and the overall filling of bulk storage containers.
(v) You must regularly test liquid level sensing devices to ensure
proper operation.
(9) Observe effluent treatment facilities frequently enough to
detect possible system upsets that could cause a discharge as described
in Sec. 112.1(b).
(10) Promptly correct visible discharges which result in a loss of
oil from the container, including but not limited to seams, gaskets,
piping, pumps, valves, rivets, and bolts. You must promptly remove any
accumulations of oil in diked areas.
(11) Position or locate mobile or portable oil storage containers to
prevent a discharge as described in Sec. 112.1(b). Except for mobile
refuelers and other non-transportation-related tank trucks, you must
furnish a secondary means of containment, such as a dike or catchment
basin, sufficient to contain the capacity of the largest single
compartment or container with sufficient freeboard to contain
precipitation.
(d) Facility transfer operations, pumping, and facility process. (1)
Provide buried piping that is installed or replaced on or after August
16, 2002, with a protective wrapping and coating. You must also
cathodically protect such buried piping installations or otherwise
satisfy the corrosion protection standards for piping in part 280 of
this chapter or a State program approved under part 281 of this chapter.
If a section of buried line is exposed for any reason, you must
carefully inspect it for deterioration. If you find corrosion damage,
you must undertake additional examination and corrective action as
indicated by the magnitude of the damage.
(2) Cap or blank-flange the terminal connection at the transfer
point and mark it as to origin when piping is not in service or is in
standby service for an extended time.
(3) Properly design pipe supports to minimize abrasion and corrosion
and allow for expansion and contraction.
(4) Regularly inspect all aboveground valves, piping, and
appurtenances. During the inspection you must assess the general
condition of items, such as flange joints, expansion joints, valve
glands and bodies, catch pans, pipeline supports, locking of valves, and
metal surfaces. You must also conduct integrity and leak testing of
buried piping at the time of installation, modification, construction,
relocation, or replacement.
(5) Warn all vehicles entering the facility to be sure that no
vehicle will endanger aboveground piping or other oil transfer
operations.
[67 FR 47146, July 17, 2002, as amended at 71 FR 77293, Dec. 26, 2006;
73 FR 74304, Dec. 5, 2008]
Sec. 112.9 Spill Prevention, Control, and Countermeasure Plan
Requirements for onshore oil production facilities (excluding
drilling and workover facilities).
If you are the owner or operator of an onshore oil production
facility (excluding a drilling or workover facility), you must:
(a) Meet the general requirements for the Plan listed under Sec.
112.7, and the specific discharge prevention and containment procedures
listed under this section.
[[Page 45]]
(b) Oil production facility drainage. (1) At tank batteries and
separation and treating areas where there is a reasonable possibility of
a discharge as described in Sec. 112.1(b), close and seal at all times
drains of dikes or drains of equivalent measures required under Sec.
112.7(c)(1), except when draining uncontaminated rainwater. Prior to
drainage, you must inspect the diked area and take action as provided in
Sec. 112.8(c)(3)(ii), (iii), and (iv). You must remove accumulated oil
on the rainwater and return it to storage or dispose of it in accordance
with legally approved methods.
(2) Inspect at regularly scheduled intervals field drainage systems
(such as drainage ditches or road ditches), and oil traps, sumps, or
skimmers, for an accumulation of oil that may have resulted from any
small discharge. You must promptly remove any accumulations of oil.
(c) Oil production facility bulk storage containers. (1) Not use a
container for the storage of oil unless its material and construction
are compatible with the material stored and the conditions of storage.
(2) Except as described in paragraph (c)(5) of this section for
flow-through process vessels and paragraph (c)(6) of this section for
produced water containers and any associated piping and appurtenances
downstream from the container, construct all tank battery, separation,
and treating facility installations, so that you provide a secondary
means of containment for the entire capacity of the largest single
container and sufficient freeboard to contain precipitation. You must
safely confine drainage from undiked areas in a catchment basin or
holding pond.
(3) Except as described in paragraph (c)(5) of this section for
flow-through process vessels and paragraph (c)(6) of this section for
produced water containers and any associated piping and appurtenances
downstream from the container, periodically and upon a regular schedule
visually inspect each container of oil for deterioration and maintenance
needs, including the foundation and support of each container that is on
or above the surface of the ground.
(4) Engineer or update new and old tank battery installations in
accordance with good engineering practice to prevent discharges. You
must provide at least one of the following:
(i) Container capacity adequate to assure that a container will not
overfill if a pumper/gauger is delayed in making regularly scheduled
rounds.
(ii) Overflow equalizing lines between containers so that a full
container can overflow to an adjacent container.
(iii) Vacuum protection adequate to prevent container collapse
during a pipeline run or other transfer of oil from the container.
(iv) High level sensors to generate and transmit an alarm signal to
the computer where the facility is subject to a computer production
control system.
(5) Flow-through process vessels. The owner or operator of a
facility with flow-through process vessels may choose to implement the
alternate requirements as described below in lieu of sized secondary
containment required in paragraphs (c)(2) and (c)(3) of this section.
(i) Periodically and on a regular schedule visually inspect and/or
test flow-through process vessels and associated components (such as
dump valves) for leaks, corrosion, or other conditions that could lead
to a discharge as described in Sec. 112.1(b).
(ii) Take corrective action or make repairs to flow-through process
vessels and any associated components as indicated by regularly
scheduled visual inspections, tests, or evidence of an oil discharge.
(iii) Promptly remove or initiate actions to stabilize and remediate
any accumulations of oil discharges associated with flow-through process
vessels.
(iv) If your facility discharges more than 1,000 U.S. gallons of oil
in a single discharge as described in Sec. 112.1(b), or discharges more
than 42 U.S. gallons of oil in each of two discharges as described in
Sec. 112.1(b) within any twelve month period, from flow-through process
vessels (excluding discharges that are the result of natural disasters,
acts of war, or terrorism) then you must, within six months from the
time the facility becomes subject to this paragraph, ensure that all
flow-through
[[Page 46]]
process vessels subject to this subpart comply with Sec. 112.9(c)(2)
and (c)(3).
(6) Produced water containers. For each produced water container,
comply with Sec. 112.9(c)(1) and (c)(4); and Sec. 112.9(c)(2) and
(c)(3), or comply with the provisions of the following paragraphs
(c)(6)(i) through (v):
(i) Implement, on a regular schedule, a procedure for each produced
water container that is designed to separate the free-phase oil that
accumulates on the surface of the produced water. Include in the Plan a
description of the procedures, frequency, amount of free-phase oil
expected to be maintained inside the container, and a Professional
Engineer certification in accordance with Sec. 112.3(d)(1)(vi).
Maintain records of such events in accordance with Sec. 112.7(e).
Records kept under usual and customary business practices will suffice
for purposes of this paragraph. If this procedure is not implemented as
described in the Plan or no records are maintained, then you must comply
with Sec. 112.9(c)(2) and (c)(3).
(ii) On a regular schedule, visually inspect and/or test the
produced water container and associated piping for leaks, corrosion, or
other conditions that could lead to a discharge as described in Sec.
112.1(b) in accordance with good engineering practice.
(iii) Take corrective action or make repairs to the produced water
container and any associated piping as indicated by regularly scheduled
visual inspections, tests, or evidence of an oil discharge.
(iv) Promptly remove or initiate actions to stabilize and remediate
any accumulations of oil discharges associated with the produced water
container.
(v) If your facility discharges more than 1,000 U.S. gallons of oil
in a single discharge as described in Sec. 112.1(b), or discharges more
than 42 U.S. gallons of oil in each of two discharges as described in
Sec. 112.1(b) within any twelve month period from a produced water
container subject to this subpart (excluding discharges that are the
result of natural disasters, acts of war, or terrorism) then you must,
within six months from the time the facility becomes subject to this
paragraph, ensure that all produced water containers subject to this
subpart comply with Sec. 112.9(c)(2) and (c)(3).
(d) Facility transfer operations, oil production facility. (1)
Periodically and upon a regular schedule inspect all aboveground valves
and piping associated with transfer operations for the general condition
of flange joints, valve glands and bodies, drip pans, pipe supports,
pumping well polish rod stuffing boxes, bleeder and gauge valves, and
other such items.
(2) Inspect saltwater (oil field brine) disposal facilities often,
particularly following a sudden change in atmospheric temperature, to
detect possible system upsets capable of causing a discharge.
(3) For flowlines and intra-facility gathering lines that are not
provided with secondary containment in accordance with Sec. 112.7(c),
unless you have submitted a response plan under Sec. 112.20, provide in
your Plan the following:
(i) An oil spill contingency plan following the provisions of part
109 of this chapter.
(ii) A written commitment of manpower, equipment, and materials
required to expeditiously control and remove any quantity of oil
discharged that might be harmful.
(4) Prepare and implement a written program of flowline/intra-
facility gathering line maintenance. The maintenance program must
address your procedures to:
(i) Ensure that flowlines and intra-facility gathering lines and
associated valves and equipment are compatible with the type of
production fluids, their potential corrosivity, volume, and pressure,
and other conditions expected in the operational environment.
(ii) Visually inspect and/or test flowlines and intra-facility
gathering lines and associated appurtenances on a periodic and regular
schedule for leaks, oil discharges, corrosion, or other conditions that
could lead to a discharge as described in Sec. 112.1(b). For flowlines
and intra-facility gathering lines that are not provided with secondary
containment in accordance with Sec. 112.7(c), the frequency and type of
testing must allow for the implementation of a contingency plan as
described under part 109 of this chapter.
[[Page 47]]
(iii) Take corrective action or make repairs to any flowlines and
intra-facility gathering lines and associated appurtenances as indicated
by regularly scheduled visual inspections, tests, or evidence of a
discharge.
(iv) Promptly remove or initiate actions to stabilize and remediate
any accumulations of oil discharges associated with flowlines, intra-
facility gathering lines, and associated appurtenances.
[73 FR 74304, Dec. 5, 2008, as amended at 74 FR 58810, Nov. 13, 2009]
Sec. 112.10 Spill Prevention, Control, and Countermeasure Plan
requirements for onshore oil drilling and workover facilities.
If you are the owner or operator of an onshore oil drilling and
workover facility, you must:
(a) Meet the general requirements listed under Sec. 112.7, and also
meet the specific discharge prevention and containment procedures listed
under this section.
(b) Position or locate mobile drilling or workover equipment so as
to prevent a discharge as described in Sec. 112.1(b).
(c) Provide catchment basins or diversion structures to intercept
and contain discharges of fuel, crude oil, or oily drilling fluids.
(d) Install a blowout prevention (BOP) assembly and well control
system before drilling below any casing string or during workover
operations. The BOP assembly and well control system must be capable of
controlling any well-head pressure that may be encountered while that
BOP assembly and well control system are on the well.
Sec. 112.11 Spill Prevention, Control, and Countermeasure Plan
requirements for offshore oil drilling, production, or workover
facilities.
If you are the owner or operator of an offshore oil drilling,
production, or workover facility, you must:
(a) Meet the general requirements listed under Sec. 112.7, and also
meet the specific discharge prevention and containment procedures listed
under this section.
(b) Use oil drainage collection equipment to prevent and control
small oil discharges around pumps, glands, valves, flanges, expansion
joints, hoses, drain lines, separators, treaters, tanks, and associated
equipment. You must control and direct facility drains toward a central
collection sump to prevent the facility from having a discharge as
described in Sec. 112.1(b). Where drains and sumps are not practicable,
you must remove oil contained in collection equipment as often as
necessary to prevent overflow.
(c) For facilities employing a sump system, provide adequately sized
sump and drains and make available a spare pump to remove liquid from
the sump and assure that oil does not escape. You must employ a
regularly scheduled preventive maintenance inspection and testing
program to assure reliable operation of the liquid removal system and
pump start-up device. Redundant automatic sump pumps and control devices
may be required on some installations.
(d) At facilities with areas where separators and treaters are
equipped with dump valves which predominantly fail in the closed
position and where pollution risk is high, specially equip the facility
to prevent the discharge of oil. You must prevent the discharge of oil
by:
(1) Extending the flare line to a diked area if the separator is
near shore;
(2) Equipping the separator with a high liquid level sensor that
will automatically shut in wells producing to the separator; or
(3) Installing parallel redundant dump valves.
(e) Equip atmospheric storage or surge containers with high liquid
level sensing devices that activate an alarm or control the flow, or
otherwise prevent discharges.
(f) Equip pressure containers with high and low pressure sensing
devices that activate an alarm or control the flow.
(g) Equip containers with suitable corrosion protection.
(h) Prepare and maintain at the facility a written procedure within
the Plan for inspecting and testing pollution prevention equipment and
systems.
[[Page 48]]
(i) Conduct testing and inspection of the pollution prevention
equipment and systems at the facility on a scheduled periodic basis,
commensurate with the complexity, conditions, and circumstances of the
facility and any other appropriate regulations. You must use simulated
discharges for testing and inspecting human and equipment pollution
control and countermeasure systems.
(j) Describe in detailed records surface and subsurface well shut-in
valves and devices in use at the facility for each well sufficiently to
determine their method of activation or control, such as pressure
differential, change in fluid or flow conditions, combination of
pressure and flow, manual or remote control mechanisms.
(k) Install a BOP assembly and well control system during workover
operations and before drilling below any casing string. The BOP assembly
and well control system must be capable of controlling any well-head
pressure that may be encountered while the BOP assembly and well control
system are on the well.
(l) Equip all manifolds (headers) with check valves on individual
flowlines.
(m) Equip the flowline with a high pressure sensing device and shut-
in valve at the wellhead if the shut-in well pressure is greater than
the working pressure of the flowline and manifold valves up to and
including the header valves. Alternatively you may provide a pressure
relief system for flowlines.
(n) Protect all piping appurtenant to the facility from corrosion,
such as with protective coatings or cathodic protection.
(o) Adequately protect sub-marine piping appurtenant to the facility
against environmental stresses and other activities such as fishing
operations.
(p) Maintain sub-marine piping appurtenant to the facility in good
operating condition at all times. You must periodically and according to
a schedule inspect or test such piping for failures. You must document
and keep a record of such inspections or tests at the facility.
Subpart C_Requirements for Animal Fats and Oils and Greases, and Fish
and Marine Mammal Oils; and for Vegetable Oils, including Oils from
Seeds, Nuts, Fruits, and Kernels
Source: 67 FR 57149, July 17, 2002, unless otherwise noted.
Sec. 112.12 Spill Prevention, Control, and Countermeasure Plan
requirements.
If you are the owner or operator of an onshore facility, you must:
(a) Meet the general requirements for the Plan listed under Sec.
112.7, and the specific discharge prevention and containment procedures
listed in this section.
(b) Facility drainage. (1) Restrain drainage from diked storage
areas by valves to prevent a discharge into the drainage system or
facility effluent treatment system, except where facility systems are
designed to control such discharge. You may empty diked areas by pumps
or ejectors; however, you must manually activate these pumps or ejectors
and must inspect the condition of the accumulation before starting, to
ensure no oil will be discharged.
(2) Use valves of manual, open-and-closed design, for the drainage
of diked areas. You may not use flapper-type drain valves to drain diked
areas. If your facility drainage drains directly into a watercourse and
not into an on-site wastewater treatment plant, you must inspect and may
drain uncontaminated retained stormwater, subject to the requirements of
paragraphs (c)(3)(ii), (iii), and (iv) of this section.
(3) Design facility drainage systems from undiked areas with a
potential for a discharge (such as where piping is located outside
containment walls or where tank truck discharges may occur outside the
loading area) to flow into ponds, lagoons, or catchment basins designed
to retain oil or return it to the facility. You must not locate
catchment basins in areas subject to periodic flooding.
[[Page 49]]
(4) If facility drainage is not engineered as in paragraph (b)(3) of
this section, equip the final discharge of all ditches inside the
facility with a diversion system that would, in the event of an
uncontrolled discharge, retain oil in the facility.
(5) Where drainage waters are treated in more than one treatment
unit and such treatment is continuous, and pump transfer is needed,
provide two ``lift'' pumps and permanently install at least one of the
pumps. Whatever techniques you use, you must engineer facility drainage
systems to prevent a discharge as described in Sec. 112.1(b) in case
there is an equipment failure or human error at the facility.
(c) Bulk storage containers. (1) Not use a container for the storage
of oil unless its material and construction are compatible with the
material stored and conditions of storage such as pressure and
temperature.
(2) Construct all bulk storage tank installations (except mobile
refuelers and other non-transportation-related tank trucks) so that you
provide a secondary means of containment for the entire capacity of the
largest single container and sufficient freeboard to contain
precipitation. You must ensure that diked areas are sufficiently
impervious to contain discharged oil. Dikes, containment curbs, and pits
are commonly employed for this purpose. You may also use an alternative
system consisting of a drainage trench enclosure that must be arranged
so that any discharge will terminate and be safely confined in a
facility catchment basin or holding pond.
(3) Not allow drainage of uncontaminated rainwater from the diked
area into a storm drain or discharge of an effluent into an open
watercourse, lake, or pond, bypassing the facility treatment system
unless you:
(i) Normally keep the bypass valve sealed closed.
(ii) Inspect the retained rainwater to ensure that its presence will
not cause a discharge as described in Sec. 112.1(b).
(iii) Open the bypass valve and reseal it following drainage under
responsible supervision; and
(iv) Keep adequate records of such events, for example, any records
required under permits issued in accordance with Sec. Sec. 122.41(j)(2)
and 122.41(m)(3) of this chapter.
(4) Protect any completely buried metallic storage tank installed on
or after January 10, 1974 from corrosion by coatings or cathodic
protection compatible with local soil conditions. You must regularly
leak test such completely buried metallic storage tanks.
(5) Not use partially buried or bunkered metallic tanks for the
storage of oil, unless you protect the buried section of the tank from
corrosion. You must protect partially buried and bunkered tanks from
corrosion by coatings or cathodic protection compatible with local soil
conditions.
(6) Bulk storage container inspections.
(i) Except for containers that meet the criteria provided in
paragraph (c)(6)(ii) of this section, test or inspect each aboveground
container for integrity on a regular schedule and whenever you make
material repairs. You must determine, in accordance with industry
standards, the appropriate qualifications for personnel performing tests
and inspections, the frequency and type of testing and inspections,
which take into account container size, configuration, and design (such
as containers that are: shop-built, field-erected, skid-mounted,
elevated, equipped with a liner, double-walled, or partially buried).
Examples of these integrity tests include, but are not limited to:
Visual inspection, hydrostatic testing, radiographic testing, ultrasonic
testing, acoustic emissions testing, or other systems of non-destructive
testing. You must keep comparison records and you must also inspect the
container's supports and foundations. In addition, you must frequently
inspect the outside of the container for signs of deterioration,
discharges, or accumulation of oil inside diked areas. Records of
inspections and tests kept under usual and customary business practices
satisfy the recordkeeping requirements of this paragraph.
(ii) For bulk storage containers that are subject to 21 CFR part
110, are elevated, constructed of austenitic stainless steel, have no
external insulation, and are shop-fabricated, conduct formal visual
inspection on a regular
[[Page 50]]
schedule. In addition, you must frequently inspect the outside of the
container for signs of deterioration, discharges, or accumulation of oil
inside diked areas. You must determine and document in the Plan the
appropriate qualifications for personnel performing tests and
inspections. Records of inspections and tests kept under usual and
customary business practices satisfy the recordkeeping requirements of
this paragraph (c)(6).
(7) Control leakage through defective internal heating coils by
monitoring the steam return and exhaust lines for contamination from
internal heating coils that discharge into an open watercourse, or pass
the steam return or exhaust lines through a settling tank, skimmer, or
other separation or retention system.
(8) Engineer or update each container installation in accordance
with good engineering practice to avoid discharges. You must provide at
least one of the following devices:
(i) High liquid level alarms with an audible or visual signal at a
constantly attended operation or surveillance station. In smaller
facilities an audible air vent may suffice.
(ii) High liquid level pump cutoff devices set to stop flow at a
predetermined container content level.
(iii) Direct audible or code signal communication between the
container gauger and the pumping station.
(iv) A fast response system for determining the liquid level of each
bulk storage container such as digital computers, telepulse, or direct
vision gauges. If you use this alternative, a person must be present to
monitor gauges and the overall filling of bulk storage containers.
(v) You must regularly test liquid level sensing devices to ensure
proper operation.
(9) Observe effluent treatment facilities frequently enough to
detect possible system upsets that could cause a discharge as described
in Sec. 112.1(b).
(10) Promptly correct visible discharges which result in a loss of
oil from the container, including but not limited to seams, gaskets,
piping, pumps, valves, rivets, and bolts. You must promptly remove any
accumulations of oil in diked areas.
(11) Position or locate mobile or portable oil storage containers to
prevent a discharge as described in Sec. 112.1(b). Except for mobile
refuelers and other non-transportation-related tank trucks, you must
furnish a secondary means of containment, such as a dike or catchment
basin, sufficient to contain the capacity of the largest single
compartment or container with sufficient freeboard to contain
precipitation.
(d) Facility transfer operations, pumping, and facility process. (1)
Provide buried piping that is installed or replaced on or after August
16, 2002, with a protective wrapping and coating. You must also
cathodically protect such buried piping installations or otherwise
satisfy the corrosion protection standards for piping in part 280 of
this chapter or a State program approved under part 281 of this chapter.
If a section of buried line is exposed for any reason, you must
carefully inspect it for deterioration. If you find corrosion damage,
you must undertake additional examination and corrective action as
indicated by the magnitude of the damage.
(2) Cap or blank-flange the terminal connection at the transfer
point and mark it as to origin when piping is not in service or is in
standby service for an extended time.
(3) Properly design pipe supports to minimize abrasion and corrosion
and allow for expansion and contraction.
(4) Regularly inspect all aboveground valves, piping, and
appurtenances. During the inspection you must assess the general
condition of items, such as flange joints, expansion joints, valve
glands and bodies, catch pans, pipeline supports, locking of valves, and
metal surfaces. You must also conduct integrity and leak testing of
buried piping at the time of installation, modification, construction,
relocation, or replacement.
(5) Warn all vehicles entering the facility to be sure that no
vehicle will endanger aboveground piping or other oil transfer
operations.
[67 FR 57149, July 17, 2002, as amended at 71 FR 77293, Dec. 26, 2006;
73 FR 74305, Dec. 5, 2008]
[[Page 51]]
Sec. Sec. 112.13-112.15 [Reserved]
Subpart D_Response Requirements
Sec. 112.20 Facility response plans.
(a) The owner or operator of any non-transportation-related onshore
facility that, because of its location, could reasonably be expected to
cause substantial harm to the environment by discharging oil into or on
the navigable waters or adjoining shorelines shall prepare and submit a
facility response plan to the Regional Administrator, according to the
following provisions:
(1) For the owner or operator of a facility in operation on or
before February 18, 1993 who is required to prepare and submit a
response plan under 33 U.S.C. 1321(j)(5), the Oil Pollution Act of 1990
(Pub. L. 101-380, 33 U.S.C. 2701 et seq.) requires the submission of a
response plan that satisfies the requirements of 33 U.S.C. 1321(j)(5) no
later than February 18, 1993.
(i) The owner or operator of an existing facility that was in
operation on or before February 18, 1993 who submitted a response plan
by February 18, 1993 shall revise the response plan to satisfy the
requirements of this section and resubmit the response plan or updated
portions of the response plan to the Regional Administrator by February
18, 1995.
(ii) The owner or operator of an existing facility in operation on
or before February 18, 1993 who failed to submit a response plan by
February 18, 1993 shall prepare and submit a response plan that
satisfies the requirements of this section to the Regional Administrator
before August 30, 1994.
(2) The owner or operator of a facility in operation on or after
August 30, 1994 that satisfies the criteria in paragraph (f)(1) of this
section or that is notified by the Regional Administrator pursuant to
paragraph (b) of this section shall prepare and submit a facility
response plan that satisfies the requirements of this section to the
Regional Administrator.
(i) For a facility that commenced operations after February 18, 1993
but prior to August 30, 1994, and is required to prepare and submit a
response plan based on the criteria in paragraph (f)(1) of this section,
the owner or operator shall submit the response plan or updated portions
of the response plan, along with a completed version of the response
plan cover sheet contained in appendix F to this part, to the Regional
Administrator prior to August 30, 1994.
(ii) For a newly constructed facility that commences operation after
August 30, 1994, and is required to prepare and submit a response plan
based on the criteria in paragraph (f)(1) of this section, the owner or
operator shall submit the response plan, along with a completed version
of the response plan cover sheet contained in appendix F to this part,
to the Regional Administrator prior to the start of operations
(adjustments to the response plan to reflect changes that occur at the
facility during the start-up phase of operations must be submitted to
the Regional Administrator after an operational trial period of 60
days).
(iii) For a facility required to prepare and submit a response plan
after August 30, 1994, as a result of a planned change in design,
construction, operation, or maintenance that renders the facility
subject to the criteria in paragraph (f)(1) of this section, the owner
or operator shall submit the response plan, along with a completed
version of the response plan cover sheet contained in appendix F to this
part, to the Regional Administrator before the portion of the facility
undergoing change commences operations (adjustments to the response plan
to reflect changes that occur at the facility during the start-up phase
of operations must be submitted to the Regional Administrator after an
operational trial period of 60 days).
(iv) For a facility required to prepare and submit a response plan
after August 30, 1994, as a result of an unplanned event or change in
facility characteristics that renders the facility subject to the
criteria in paragraph (f)(1) of this section, the owner or operator
shall submit the response plan, along with a completed version of the
response plan cover sheet contained in appendix F to this part, to the
Regional Administrator within six months of the unplanned event or
change.
[[Page 52]]
(3) In the event the owner or operator of a facility that is
required to prepare and submit a response plan uses an alternative
formula that is comparable to one contained in appendix C to this part
to evaluate the criterion in paragraph (f)(1)(ii)(B) or (f)(1)(ii)(C) of
this section, the owner or operator shall attach documentation to the
response plan cover sheet contained in appendix F to this part that
demonstrates the reliability and analytical soundness of the alternative
formula.
(4) Preparation and submission of response plans--Animal fat and
vegetable oil facilities. The owner or operator of any non-
transportation-related facility that handles, stores, or transports
animal fats and vegetable oils must prepare and submit a facility
response plan as follows:
(i) Facilities with approved plans. The owner or operator of a
facility with a facility response plan that has been approved under
paragraph (c) of this section by July 31, 2000 need not prepare or
submit a revised plan except as otherwise required by paragraphs (b),
(c), or (d) of this section.
(ii) Facilities with plans that have been submitted to the Regional
Administrator. Except for facilities with approved plans as provided in
paragraph (a)(4)(i) of this section, the owner or operator of a facility
that has submitted a response plan to the Regional Administrator prior
to July 31, 2000 must review the plan to determine if it meets or
exceeds the applicable provisions of this part. An owner or operator
need not prepare or submit a new plan if the existing plan meets or
exceeds the applicable provisions of this part. If the plan does not
meet or exceed the applicable provisions of this part, the owner or
operator must prepare and submit a new plan by September 28, 2000.
(iii) Newly regulated facilities. The owner or operator of a newly
constructed facility that commences operation after July 31, 2000 must
prepare and submit a plan to the Regional Administrator in accordance
with paragraph (a)(2)(ii) of this section. The plan must meet or exceed
the applicable provisions of this part. The owner or operator of an
existing facility that must prepare and submit a plan after July 31,
2000 as a result of a planned or unplanned change in facility
characteristics that causes the facility to become regulated under
paragraph (f)(1) of this section, must prepare and submit a plan to the
Regional Administrator in accordance with paragraph (a)(2)(iii) or (iv)
of this section, as appropriate. The plan must meet or exceed the
applicable provisions of this part.
(iv) Facilities amending existing plans. The owner or operator of a
facility submitting an amended plan in accordance with paragraph (d) of
this section after July 31, 2000, including plans that had been
previously approved, must also review the plan to determine if it meets
or exceeds the applicable provisions of this part. If the plan does not
meet or exceed the applicable provisions of this part, the owner or
operator must revise and resubmit revised portions of an amended plan to
the Regional Administrator in accordance with paragraph (d) of this
section, as appropriate. The plan must meet or exceed the applicable
provisions of this part.
(b)(1) The Regional Administrator may at any time require the owner
or operator of any non-transportation-related onshore facility to
prepare and submit a facility response plan under this section after
considering the factors in paragraph (f)(2) of this section. If such a
determination is made, the Regional Administrator shall notify the
facility owner or operator in writing and shall provide a basis for the
determination. If the Regional Administrator notifies the owner or
operator in writing of the requirement to prepare and submit a response
plan under this section, the owner or operator of the facility shall
submit the response plan to the Regional Administrator within six months
of receipt of such written notification.
(2) The Regional Administrator shall review plans submitted by such
facilities to determine whether the facility could, because of its
location, reasonably be expected to cause significant and substantial
harm to the environment by discharging oil into or on the navigable
waters or adjoining shorelines.
[[Page 53]]
(c) The Regional Administrator shall determine whether a facility
could, because of its location, reasonably be expected to cause
significant and substantial harm to the environment by discharging oil
into or on the navigable waters or adjoining shorelines, based on the
factors in paragraph (f)(3) of this section. If such a determination is
made, the Regional Administrator shall notify the owner or operator of
the facility in writing and:
(1) Promptly review the facility response plan;
(2) Require amendments to any response plan that does not meet the
requirements of this section;
(3) Approve any response plan that meets the requirements of this
section; and
(4) Review each response plan periodically thereafter on a schedule
established by the Regional Administrator provided that the period
between plan reviews does not exceed five years.
(d)(1) The owner or operator of a facility for which a response plan
is required under this part shall revise and resubmit revised portions
of the response plan within 60 days of each facility change that
materially may affect the response to a worst case discharge, including:
(i) A change in the facility's configuration that materially alters
the information included in the response plan;
(ii) A change in the type of oil handled, stored, or transferred
that materially alters the required response resources;
(iii) A material change in capabilities of the oil spill removal
organization(s) that provide equipment and personnel to respond to
discharges of oil described in paragraph (h)(5) of this section;
(iv) A material change in the facility's spill prevention and
response equipment or emergency response procedures; and
(v) Any other changes that materially affect the implementation of
the response plan.
(2) Except as provided in paragraph (d)(1) of this section,
amendments to personnel and telephone number lists included in the
response plan and a change in the oil spill removal organization(s) that
does not result in a material change in support capabilities do not
require approval by the Regional Administrator. Facility owners or
operators shall provide a copy of such changes to the Regional
Administrator as the revisions occur.
(3) The owner or operator of a facility that submits changes to a
response plan as provided in paragraph (d)(1) or (d)(2) of this section
shall provide the EPA-issued facility identification number (where one
has been assigned) with the changes.
(4) The Regional Administrator shall review for approval changes to
a response plan submitted pursuant to paragraph (d)(1) of this section
for a facility determined pursuant to paragraph (f)(3) of this section
to have the potential to cause significant and substantial harm to the
environment.
(e) If the owner or operator of a facility determines pursuant to
paragraph (a)(2) of this section that the facility could not, because of
its location, reasonably be expected to cause substantial harm to the
environment by discharging oil into or on the navigable waters or
adjoining shorelines, the owner or operator shall complete and maintain
at the facility the certification form contained in appendix C to this
part and, in the event an alternative formula that is comparable to one
contained in appendix C to this part is used to evaluate the criterion
in paragraph (f)(1)(ii)(B) or (f)(1)(ii)(C) of this section, the owner
or operator shall attach documentation to the certification form that
demonstrates the reliability and analytical soundness of the comparable
formula and shall notify the Regional Administrator in writing that an
alternative formula was used.
(f)(1) A facility could, because of its location, reasonably be
expected to cause substantial harm to the environment by discharging oil
into or on the navigable waters or adjoining shorelines pursuant to
paragraph (a)(2) of this section, if it meets any of the following
criteria applied in accordance with the flowchart contained in
attachment C-I to appendix C to this part:
(i) The facility transfers oil over water to or from vessels and has
a total oil storage capacity greater than or equal to 42,000 gallons; or
[[Page 54]]
(ii) The facility's total oil storage capacity is greater than or
equal to 1 million gallons, and one of the following is true:
(A) The facility does not have secondary containment for each
aboveground storage area sufficiently large to contain the capacity of
the largest aboveground oil storage tank within each storage area plus
sufficient freeboard to allow for precipitation;
(B) The facility is located at a distance (as calculated using the
appropriate formula in appendix C to this part or a comparable formula)
such that a discharge from the facility could cause injury to fish and
wildlife and sensitive environments. For further description of fish and
wildlife and sensitive environments, see Appendices I, II, and III of
the ``Guidance for Facility and Vessel Response Plans: Fish and Wildlife
and Sensitive Environments'' (see appendix E to this part, section 13,
for availability) and the applicable Area Contingency Plan prepared
pursuant to section 311(j)(4) of the Clean Water Act;
(C) The facility is located at a distance (as calculated using the
appropriate formula in appendix C to this part or a comparable formula)
such that a discharge from the facility would shut down a public
drinking water intake; or
(D) The facility has had a reportable oil discharge in an amount
greater than or equal to 10,000 gallons within the last 5 years.
(2)(i) To determine whether a facility could, because of its
location, reasonably be expected to cause substantial harm to the
environment by discharging oil into or on the navigable waters or
adjoining shorelines pursuant to paragraph (b) of this section, the
Regional Administrator shall consider the following:
(A) Type of transfer operation;
(B) Oil storage capacity;
(C) Lack of secondary containment;
(D) Proximity to fish and wildlife and sensitive environments and
other areas determined by the Regional Administrator to possess
ecological value;
(E) Proximity to drinking water intakes;
(F) Spill history; and
(G) Other site-specific characteristics and environmental factors
that the Regional Administrator determines to be relevant to protecting
the environment from harm by discharges of oil into or on navigable
waters or adjoining shorelines.
(ii) Any person, including a member of the public or any
representative from a Federal, State, or local agency who believes that
a facility subject to this section could, because of its location,
reasonably be expected to cause substantial harm to the environment by
discharging oil into or on the navigable waters or adjoining shorelines
may petition the Regional Administrator to determine whether the
facility meets the criteria in paragraph (f)(2)(i) of this section. Such
petition shall include a discussion of how the factors in paragraph
(f)(2)(i) of this section apply to the facility in question. The RA
shall consider such petitions and respond in an appropriate amount of
time.
(3) To determine whether a facility could, because of its location,
reasonably be expected to cause significant and substantial harm to the
environment by discharging oil into or on the navigable waters or
adjoining shorelines, the Regional Administrator may consider the
factors in paragraph (f)(2) of this section as well as the following:
(i) Frequency of past discharges;
(ii) Proximity to navigable waters;
(iii) Age of oil storage tanks; and
(iv) Other facility-specific and Region-specific information,
including local impacts on public health.
(g)(1) All facility response plans shall be consistent with the
requirements of the National Oil and Hazardous Substance Pollution
Contingency Plan (40 CFR part 300) and applicable Area Contingency Plans
prepared pursuant to section 311(j)(4) of the Clean Water Act. The
facility response plan should be coordinated with the local emergency
response plan developed by the local emergency planning committee under
section 303 of Title III of the Superfund Amendments and Reauthorization
Act of 1986 (42 U.S.C. 11001 et seq.). Upon request, the owner or
operator should provide a copy of the facility response plan to the
local emergency planning
[[Page 55]]
committee or State emergency response commission.
(2) The owner or operator shall review relevant portions of the
National Oil and Hazardous Substances Pollution Contingency Plan and
applicable Area Contingency Plan annually and, if necessary, revise the
facility response plan to ensure consistency with these plans.
(3) The owner or operator shall review and update the facility
response plan periodically to reflect changes at the facility.
(h) A response plan shall follow the format of the model facility-
specific response plan included in appendix F to this part, unless you
have prepared an equivalent response plan acceptable to the Regional
Administrator to meet State or other Federal requirements. A response
plan that does not follow the specified format in appendix F to this
part shall have an emergency response action plan as specified in
paragraphs (h)(1) of this section and be supplemented with a cross-
reference section to identify the location of the elements listed in
paragraphs (h)(2) through (h)(10) of this section. To meet the
requirements of this part, a response plan shall address the following
elements, as further described in appendix F to this part:
(1) Emergency response action plan. The response plan shall include
an emergency response action plan in the format specified in paragraphs
(h)(1)(i) through (viii) of this section that is maintained in the front
of the response plan, or as a separate document accompanying the
response plan, and that includes the following information:
(i) The identity and telephone number of a qualified individual
having full authority, including contracting authority, to implement
removal actions;
(ii) The identity of individuals or organizations to be contacted in
the event of a discharge so that immediate communications between the
qualified individual identified in paragraph (h)(1) of this section and
the appropriate Federal officials and the persons providing response
personnel and equipment can be ensured;
(iii) A description of information to pass to response personnel in
the event of a reportable discharge;
(iv) A description of the facility's response equipment and its
location;
(v) A description of response personnel capabilities, including the
duties of persons at the facility during a response action and their
response times and qualifications;
(vi) Plans for evacuation of the facility and a reference to
community evacuation plans, as appropriate;
(vii) A description of immediate measures to secure the source of
the discharge, and to provide adequate containment and drainage of
discharged oil; and
(viii) A diagram of the facility.
(2) Facility information. The response plan shall identify and
discuss the location and type of the facility, the identity and tenure
of the present owner and operator, and the identity of the qualified
individual identified in paragraph (h)(1) of this section.
(3) Information about emergency response. The response plan shall
include:
(i) The identity of private personnel and equipment necessary to
remove to the maximum extent practicable a worst case discharge and
other discharges of oil described in paragraph (h)(5) of this section,
and to mitigate or prevent a substantial threat of a worst case
discharge (To identify response resources to meet the facility response
plan requirements of this section, owners or operators shall follow
appendix E to this part or, where not appropriate, shall clearly
demonstrate in the response plan why use of appendix E of this part is
not appropriate at the facility and make comparable arrangements for
response resources);
(ii) Evidence of contracts or other approved means for ensuring the
availability of such personnel and equipment;
(iii) The identity and the telephone number of individuals or
organizations to be contacted in the event of a discharge so that
immediate communications between the qualified individual identified in
paragraph (h)(1) of this section and the appropriate Federal official
and the persons providing response personnel and equipment can be
ensured;
(iv) A description of information to pass to response personnel in
the event of a reportable discharge;
[[Page 56]]
(v) A description of response personnel capabilities, including the
duties of persons at the facility during a response action and their
response times and qualifications;
(vi) A description of the facility's response equipment, the
location of the equipment, and equipment testing;
(vii) Plans for evacuation of the facility and a reference to
community evacuation plans, as appropriate;
(viii) A diagram of evacuation routes; and
(ix) A description of the duties of the qualified individual
identified in paragraph (h)(1) of this section, that include:
(A) Activate internal alarms and hazard communication systems to
notify all facility personnel;
(B) Notify all response personnel, as needed;
(C) Identify the character, exact source, amount, and extent of the
release, as well as the other items needed for notification;
(D) Notify and provide necessary information to the appropriate
Federal, State, and local authorities with designated response roles,
including the National Response Center, State Emergency Response
Commission, and Local Emergency Planning Committee;
(E) Assess the interaction of the discharged substance with water
and/or other substances stored at the facility and notify response
personnel at the scene of that assessment;
(F) Assess the possible hazards to human health and the environment
due to the release. This assessment must consider both the direct and
indirect effects of the release (i.e., the effects of any toxic,
irritating, or asphyxiating gases that may be generated, or the effects
of any hazardous surface water runoffs from water or chemical agents
used to control fire and heat-induced explosion);
(G) Assess and implement prompt removal actions to contain and
remove the substance released;
(H) Coordinate rescue and response actions as previously arranged
with all response personnel;
(I) Use authority to immediately access company funding to initiate
cleanup activities; and
(J) Direct cleanup activities until properly relieved of this
responsibility.
(4) Hazard evaluation. The response plan shall discuss the
facility's known or reasonably identifiable history of discharges
reportable under 40 CFR part 110 for the entire life of the facility and
shall identify areas within the facility where discharges could occur
and what the potential effects of the discharges would be on the
affected environment. To assess the range of areas potentially affected,
owners or operators shall, where appropriate, consider the distance
calculated in paragraph (f)(1)(ii) of this section to determine whether
a facility could, because of its location, reasonably be expected to
cause substantial harm to the environment by discharging oil into or on
the navigable waters or adjoining shorelines.
(5) Response planning levels. The response plan shall include
discussion of specific planning scenarios for:
(i) A worst case discharge, as calculated using the appropriate
worksheet in appendix D to this part. In cases where the Regional
Administrator determines that the worst case discharge volume calculated
by the facility is not appropriate, the Regional Administrator may
specify the worst case discharge amount to be used for response planning
at the facility. For complexes, the worst case planning quantity shall
be the larger of the amounts calculated for each component of the
facility;
(ii) A discharge of 2,100 gallons or less, provided that this amount
is less than the worst case discharge amount. For complexes, this
planning quantity shall be the larger of the amounts calculated for each
component of the facility; and
(iii) A discharge greater than 2,100 gallons and less than or equal
to 36,000 gallons or 10 percent of the capacity of the largest tank at
the facility, whichever is less, provided that this amount is less than
the worst case discharge amount. For complexes, this planning quantity
shall be the larger of the amounts calculated for each component of the
facility.
[[Page 57]]
(6) Discharge detection systems. The response plan shall describe
the procedures and equipment used to detect discharges.
(7) Plan implementation. The response plan shall describe:
(i) Response actions to be carried out by facility personnel or
contracted personnel under the response plan to ensure the safety of the
facility and to mitigate or prevent discharges described in paragraph
(h)(5) of this section or the substantial threat of such discharges;
(ii) A description of the equipment to be used for each scenario;
(iii) Plans to dispose of contaminated cleanup materials; and
(iv) Measures to provide adequate containment and drainage of
discharged oil.
(8) Self-inspection, drills/exercises, and response training. The
response plan shall include:
(i) A checklist and record of inspections for tanks, secondary
containment, and response equipment;
(ii) A description of the drill/exercise program to be carried out
under the response plan as described in Sec. 112.21;
(iii) A description of the training program to be carried out under
the response plan as described in Sec. 112.21; and
(iv) Logs of discharge prevention meetings, training sessions, and
drills/exercises. These logs may be maintained as an annex to the
response plan.
(9) Diagrams. The response plan shall include site plan and drainage
plan diagrams.
(10) Security systems. The response plan shall include a description
of facility security systems.
(11) Response plan cover sheet. The response plan shall include a
completed response plan cover sheet provided in section 2.0 of appendix
F to this part.
(i)(1) In the event the owner or operator of a facility does not
agree with the Regional Administrator's determination that the facility
could, because of its location, reasonably be expected to cause
substantial harm or significant and substantial harm to the environment
by discharging oil into or on the navigable waters or adjoining
shorelines, or that amendments to the facility response plan are
necessary prior to approval, such as changes to the worst case discharge
planning volume, the owner or operator may submit a request for
reconsideration to the Regional Administrator and provide additional
information and data in writing to support the request. The request and
accompanying information must be submitted to the Regional Administrator
within 60 days of receipt of notice of the Regional Administrator's
original decision. The Regional Administrator shall consider the request
and render a decision as rapidly as practicable.
(2) In the event the owner or operator of a facility believes a
change in the facility's classification status is warranted because of
an unplanned event or change in the facility's characteristics (i.e.,
substantial harm or significant and substantial harm), the owner or
operator may submit a request for reconsideration to the Regional
Administrator and provide additional information and data in writing to
support the request. The Regional Administrator shall consider the
request and render a decision as rapidly as practicable.
(3) After a request for reconsideration under paragraph (i)(1) or
(i)(2) of this section has been denied by the Regional Administrator, an
owner or operator may appeal a determination made by the Regional
Administrator. The appeal shall be made to the EPA Administrator and
shall be made in writing within 60 days of receipt of the decision from
the Regional Administrator that the request for reconsideration was
denied. A complete copy of the appeal must be sent to the Regional
Administrator at the time the appeal is made. The appeal shall contain a
clear and concise statement of the issues and points of fact in the
case. It also may contain additional information from the owner or
operator, or from any other person. The EPA Administrator may request
additional information from the owner or operator, or from any other
person. The EPA Administrator shall render a decision as rapidly as
practicable and shall notify the owner or operator of the decision.
[59 FR 34098, July 1, 1994, as amended at 65 FR 40798, June 30, 2000; 66
FR 34560, June 29, 2001; 67 FR 47151, July 17, 2002]
[[Page 58]]
Sec. 112.21 Facility response training and drills/exercises.
(a) The owner or operator of any facility required to prepare a
facility response plan under Sec. 112.20 shall develop and implement a
facility response training program and a drill/exercise program that
satisfy the requirements of this section. The owner or operator shall
describe the programs in the response plan as provided in Sec.
112.20(h)(8).
(b) The facility owner or operator shall develop a facility response
training program to train those personnel involved in oil spill response
activities. It is recommended that the training program be based on the
USCG's Training Elements for Oil Spill Response, as applicable to
facility operations. An alternative program can also be acceptable
subject to approval by the Regional Administrator.
(1) The owner or operator shall be responsible for the proper
instruction of facility personnel in the procedures to respond to
discharges of oil and in applicable oil spill response laws, rules, and
regulations.
(2) Training shall be functional in nature according to job tasks
for both supervisory and non-supervisory operational personnel.
(3) Trainers shall develop specific lesson plans on subject areas
relevant to facility personnel involved in oil spill response and
cleanup.
(c) The facility owner or operator shall develop a program of
facility response drills/exercises, including evaluation procedures. A
program that follows the National Preparedness for Response Exercise
Program (PREP) (see appendix E to this part, section 13, for
availability) will be deemed satisfactory for purposes of this section.
An alternative program can also be acceptable subject to approval by the
Regional Administrator.
[59 FR 34101, July 1, 1994, as amended at 65 FR 40798, June 30, 2000]
Sec. Appendix A to Part 112--Memorandum of Understanding Between the
Secretary of Transportation and the Administrator of the Environmental
Protection Agency
section ii--definitions
The Environmental Protection Agency and the Department of
Transportation agree that for the purposes of Executive Order 11548, the
term:
(1) Non-transportation-related onshore and offshore facilities
means:
(A) Fixed onshore and offshore oil well drilling facilities
including all equipment and appurtenances related thereto used in
drilling operations for exploratory or development wells, but excluding
any terminal facility, unit or process integrally associated with the
handling or transferring of oil in bulk to or from a vessel.
(B) Mobile onshore and offshore oil well drilling platforms, barges,
trucks, or other mobile facilities including all equipment and
appurtenances related thereto when such mobile facilities are fixed in
position for the purpose of drilling operations for exploratory or
development wells, but excluding any terminal facility, unit or process
integrally associated with the handling or transferring of oil in bulk
to or from a vessel.
(C) Fixed onshore and offshore oil production structures, platforms,
derricks, and rigs including all equipment and appurtenances related
thereto, as well as completed wells and the wellhead separators, oil
separators, and storage facilities used in the production of oil, but
excluding any terminal facility, unit or process integrally associated
with the handling or transferring of oil in bulk to or from a vessel.
(D) Mobile onshore and offshore oil production facilities including
all equipment and appurtenances related thereto as well as completed
wells and wellhead equipment, piping from wellheads to oil separators,
oil separators, and storage facilities used in the production of oil
when such mobile facilities are fixed in position for the purpose of oil
production operations, but excluding any terminal facility, unit or
process integrally associated with the handling or transferring of oil
in bulk to or from a vessel.
(E) Oil refining facilities including all equipment and
appurtenances related thereto as well as in-plant processing units,
storage units, piping, drainage systems and waste treatment units used
in the refining of oil, but excluding any terminal facility, unit or
process integrally associated with the handling or transferring of oil
in bulk to or from a vessel.
[[Page 59]]
(F) Oil storage facilities including all equipment and appurtenances
related thereto as well as fixed bulk plant storage, terminal oil
storage facilities, consumer storage, pumps and drainage systems used in
the storage of oil, but excluding inline or breakout storage tanks
needed for the continuous operation of a pipeline system and any
terminal facility, unit or process integrally associated with the
handling or transferring of oil in bulk to or from a vessel.
(G) Industrial, commercial, agricultural or public facilities which
use and store oil, but excluding any terminal facility, unit or process
integrally associated with the handling or transferring of oil in bulk
to or from a vessel.
(H) Waste treatment facilities including in-plant pipelines,
effluent discharge lines, and storage tanks, but excluding waste
treatment facilities located on vessels and terminal storage tanks and
appurtenances for the reception of oily ballast water or tank washings
from vessels and associated systems used for off-loading vessels.
(I) Loading racks, transfer hoses, loading arms and other equipment
which are appurtenant to a nontransportation-related facility or
terminal facility and which are used to transfer oil in bulk to or from
highway vehicles or railroad cars.
(J) Highway vehicles and railroad cars which are used for the
transport of oil exclusively within the confines of a nontransportation-
related facility and which are not intended to transport oil in
interstate or intrastate commerce.
(K) Pipeline systems which are used for the transport of oil
exclusively within the confines of a nontransportation-related facility
or terminal facility and which are not intended to transport oil in
interstate or intrastate commerce, but excluding pipeline systems used
to transfer oil in bulk to or from a vessel.
(2) Transportation-related onshore and offshore facilities means:
(A) Onshore and offshore terminal facilities including transfer
hoses, loading arms and other equipment and appurtenances used for the
purpose of handling or transferring oil in bulk to or from a vessel as
well as storage tanks and appurtenances for the reception of oily
ballast water or tank washings from vessels, but excluding terminal
waste treatment facilities and terminal oil storage facilities.
(B) Transfer hoses, loading arms and other equipment appurtenant to
a non-transportation-related facility which is used to transfer oil in
bulk to or from a vessel.
(C) Interstate and intrastate onshore and offshore pipeline systems
including pumps and appurtenances related thereto as well as in-line or
breakout storage tanks needed for the continuous operation of a pipeline
system, and pipelines from onshore and offshore oil production
facilities, but excluding onshore and offshore piping from wellheads to
oil separators and pipelines which are used for the transport of oil
exclusively within the confines of a nontransportation-related facility
or terminal facility and which are not intended to transport oil in
interstate or intrastate commerce or to transfer oil in bulk to or from
a vessel.
(D) Highway vehicles and railroad cars which are used for the
transport of oil in interstate or intrastate commerce and the equipment
and appurtenances related thereto, and equipment used for the fueling of
locomotive units, as well as the rights-of-way on which they operate.
Excluded are highway vehicles and railroad cars and motive power used
exclusively within the confines of a nontransportation-related facility
or terminal facility and which are not intended for use in interstate or
intrastate commerce.
Sec. Appendix B to Part 112--Memorandum of Understanding Among the
Secretary of the Interior, Secretary of Transportation, and
Administrator of the Environmental Protection Agency
Purpose
This Memorandum of Understanding (MOU) establishes the
jurisdictional responsibilities for offshore facilities, including
pipelines, pursuant to section 311 (j)(1)(c), (j)(5), and (j)(6)(A) of
the Clean Water Act (CWA), as amended by the Oil Pollution Act of 1990
(Public Law 101-380). The Secretary of the Department of the Interior
(DOI), Secretary of the Department of Transportation (DOT), and
Administrator of the Environmental Protection Agency (EPA) agree to the
division of responsibilities set forth below for spill prevention and
control, response planning, and equipment inspection activities pursuant
to those provisions.
Background
Executive Order (E.O.) 12777 (56 FR 54757) delegates to DOI, DOT,
and EPA various responsibilities identified in section 311(j) of the
CWA. Sections 2(b)(3), 2(d)(3), and 2(e)(3) of E.O. 12777 assigned to
DOI spill prevention and control, contingency planning, and equipment
inspection activities associated with offshore facilities. Section
311(a)(11) defines the term ``offshore facility'' to include facilities
of any kind located in, on, or under navigable waters of the United
States. By using this definition, the traditional DOI role of regulating
facilities on the Outer Continental Shelf is expanded by E.O. 12777 to
include inland lakes, rivers, streams, and any other inland waters.
[[Page 60]]
Responsibilities
Pursuant to section 2(i) of E.O. 12777, DOI redelegates, and EPA and
DOT agree to assume, the functions vested in DOI by sections 2(b)(3),
2(d)(3), and 2(e)(3) of E.O. 12777 as set forth below. For purposes of
this MOU, the term ``coast line'' shall be defined as in the Submerged
Lands Act (43 U.S.C. 1301(c)) to mean ``the line of ordinary low water
along that portion of the coast which is in direct contact with the open
sea and the line marking the seaward limit of inland waters.''
1. To EPA, DOI redelegates responsibility for non-transportation-
related offshore facilities located landward of the coast line.
2. To DOT, DOI redelegates responsibility for transportation-related
facilities, including pipelines, located landward of the coast line. The
DOT retains jurisdiction for deepwater ports and their associated
seaward pipelines, as delegated by E.O. 12777.
3. The DOI retains jurisdiction over facilities, including
pipelines, located seaward of the coast line, except for deepwater ports
and associated seaward pipelines delegated by E.O. 12777 to DOT.
Effective Date
This MOU is effective on the date of the final execution by the
indicated signatories.
Limitations
1. The DOI, DOT, and EPA may agree in writing to exceptions to this
MOU on a facility-specific basis. Affected parties will receive
notification of the exceptions.
2. Nothing in this MOU is intended to replace, supersede, or modify
any existing agreements between or among DOI, DOT, or EPA.
Modification and Termination
Any party to this agreement may propose modifications by submitting
them in writing to the heads of the other agency/department. No
modification may be adopted except with the consent of all parties. All
parties shall indicate their consent to or disagreement with any
proposed modification within 60 days of receipt. Upon the request of any
party, representatives of all parties shall meet for the purpose of
considering exceptions or modifications to this agreement. This MOU may
be terminated only with the mutual consent of all parties.
Dated: November 8, 1993.
Bruce Babbitt,
Secretary of the Interior.
Dated: December 14, 1993.
Federico Pe[ntilde]a,
Secretary of Transportation.
Dated: February 3, 1994.
Carol M. Browner,
Administrator, Environmental Protection Agency.
[59 FR 34102, July 1, 1994]
Sec. Appendix C to Part 112--Substantial Harm Criteria
1.0 Introduction
The flowchart provided in Attachment C-I to this appendix shows the
decision tree with the criteria to identify whether a facility ``could
reasonably be expected to cause substantial harm to the environment by
discharging into or on the navigable waters or adjoining shorelines.''
In addition, the Regional Administrator has the discretion to identify
facilities that must prepare and submit facility-specific response plans
to EPA.
1.1 Definitions
1.1.1 Great Lakes means Lakes Superior, Michigan, Huron, Erie, and
Ontario, their connecting and tributary waters, the Saint Lawrence River
as far as Saint Regis, and adjacent port areas.
1.1.2 Higher Volume Port Areas include
(1) Boston, MA;
(2) New York, NY;
(3) Delaware Bay and River to Philadelphia, PA;
(4) St. Croix, VI;
(5) Pascagoula, MS;
(6) Mississippi River from Southwest Pass, LA to Baton Rouge, LA;
(7) Louisiana Offshore Oil Port (LOOP), LA;
(8) Lake Charles, LA;
(9) Sabine-Neches River, TX;
(10) Galveston Bay and Houston Ship Channel, TX;
(11) Corpus Christi, TX;
(12) Los Angeles/Long Beach Harbor, CA;
(13) San Francisco Bay, San Pablo Bay, Carquinez Strait, and Suisun
Bay to Antioch, CA;
(14) Straits of Juan de Fuca from Port Angeles, WA to and including
Puget Sound, WA;
(15) Prince William Sound, AK; and
(16) Others as specified by the Regional Administrator for any EPA
Region.
1.1.3 Inland Area means the area shoreward of the boundary lines
defined in 46 CFR part 7, except in the Gulf of Mexico. In the Gulf of
Mexico, it means the area shoreward of the lines of demarcation (COLREG
lines as defined in 33 CFR 80.740-80.850). The inland area does not
include the Great Lakes.
1.1.4 Rivers and Canals means a body of water confined within the
inland area, including the Intracoastal Waterways and other waterways
artificially created for navigating that have project depths of 12 feet
or less.
[[Page 61]]
2.0 Description of Screening Criteria for the Substantial Harm Flowchart
A facility that has the potential to cause substantial harm to the
environment in the event of a discharge must prepare and submit a
facility-specific response plan to EPA in accordance with appendix F to
this part. A description of the screening criteria for the substantial
harm flowchart is provided below:
2.1 Non-Transportation-Related Facilities With a Total Oil Storage
Capacity Greater Than or Equal to 42,000 Gallons Where Operations
Include Over-Water Transfers of Oil. A non-transportation-related
facility with a total oil storage capacity greater than or equal to
42,000 gallons that transfers oil over water to or from vessels must
submit a response plan to EPA. Daily oil transfer operations at these
types of facilities occur between barges and vessels and onshore bulk
storage tanks over open water. These facilities are located adjacent to
navigable water.
2.2 Lack of Adequate Secondary Containment at Facilities With a
Total Oil Storage Capacity Greater Than or Equal to 1 Million Gallons.
Any facility with a total oil storage capacity greater than or equal to
1 million gallons without secondary containment sufficiently large to
contain the capacity of the largest aboveground oil storage tank within
each area plus sufficient freeboard to allow for precipitation must
submit a response plan to EPA. Secondary containment structures that
meet the standard of good engineering practice for the purposes of this
part include berms, dikes, retaining walls, curbing, culverts, gutters,
or other drainage systems.
2.3 Proximity to Fish and Wildlife and Sensitive Environments at
Facilities With a Total Oil Storage Capacity Greater Than or Equal to 1
Million Gallons. A facility with a total oil storage capacity greater
than or equal to 1 million gallons must submit its response plan if it
is located at a distance such that a discharge from the facility could
cause injury (as defined at 40 CFR 112.2) to fish and wildlife and
sensitive environments. For further description of fish and wildlife and
sensitive environments, see Appendices I, II, and III to DOC/NOAA's
``Guidance for Facility and Vessel Response Plans: Fish and Wildlife and
Sensitive Environments'' (see appendix E to this part, section 13, for
availability) and the applicable Area Contingency Plan. Facility owners
or operators must determine the distance at which an oil discharge could
cause injury to fish and wildlife and sensitive environments using the
appropriate formula presented in Attachment C-III to this appendix or a
comparable formula.
2.4 Proximity to Public Drinking Water Intakes at Facilities with a
Total Oil Storage Capacity Greater than or Equal to 1 Million Gallons A
facility with a total oil storage capacity greater than or equal to 1
million gallons must submit its response plan if it is located at a
distance such that a discharge from the facility would shut down a
public drinking water intake, which is analogous to a public water
system as described at 40 CFR 143.2(c). The distance at which an oil
discharge from an SPCC-regulated facility would shut down a public
drinking water intake shall be calculated using the appropriate formula
presented in Attachment C-III to this appendix or a comparable formula.
2.5 Facilities That Have Experienced Reportable Oil Discharges in an
Amount Greater Than or Equal to 10,000 Gallons Within the Past 5 Years
and That Have a Total Oil Storage Capacity Greater Than or Equal to 1
Million Gallons. A facility's oil spill history within the past 5 years
shall be considered in the evaluation for substantial harm. Any facility
with a total oil storage capacity greater than or equal to 1 million
gallons that has experienced a reportable oil discharge in an amount
greater than or equal to 10,000 gallons within the past 5 years must
submit a response plan to EPA.
3.0 Certification for Facilities That Do Not Pose Substantial Harm
If the facility does not meet the substantial harm criteria listed
in Attachment C-I to this appendix, the owner or operator shall complete
and maintain at the facility the certification form contained in
Attachment C-II to this appendix. In the event an alternative formula
that is comparable to the one in this appendix is used to evaluate the
substantial harm criteria, the owner or operator shall attach
documentation to the certification form that demonstrates the
reliability and analytical soundness of the comparable formula and shall
notify the Regional Administrator in writing that an alternative formula
was used.
4.0 References
Chow, V.T. 1959. Open Channel Hydraulics. McGraw Hill.
USCG IFR (58 FR 7353, February 5, 1993). This document is available
through EPA's rulemaking docket as noted in appendix E to this part,
section 13.
[[Page 62]]
Attachments to Appendix C
[GRAPHIC] [TIFF OMITTED] TR30JN00.061
[[Page 63]]
Attachment C-II--Certification of the Applicability of the Substantial
Harm Criteria
Facility Name:__________________________________________________________
Facility Address:_______________________________________________________
1. Does the facility transfer oil over water to or from vessels and
does the facility have a total oil storage capacity greater than or
equal to 42,000 gallons?
Yes ___ No ___
2. Does the facility have a total oil storage capacity greater than
or equal to 1 million gallons and does the facility lack secondary
containment that is sufficiently large to contain the capacity of the
largest aboveground oil storage tank plus sufficient freeboard to allow
for precipitation within any aboveground oil storage tank area?
Yes ___ No ___
3. Does the facility have a total oil storage capacity greater than
or equal to 1 million gallons and is the facility located at a distance
(as calculated using the appropriate formula in Attachment C-III to this
appendix or a comparable formula \1\) such that a discharge from the
facility could cause injury to fish and wildlife and sensitive
environments? For further description of fish and wildlife and sensitive
environments, see Appendices I, II, and III to DOC/NOAA's ``Guidance for
Facility and Vessel Response Plans: Fish and Wildlife and Sensitive
Environments'' (see appendix E to this part, section 13, for
availability) and the applicable Area Contingency Plan.
Yes ___ No ___
4. Does the facility have a total oil storage capacity greater than
or equal to 1 million gallons and is the facility located at a distance
(as calculated using the appropriate formula in Attachment C-III to this
appendix or a comparable formula \1\) such that a discharge from the
facility would shut down a public drinking water intake? \2\
---------------------------------------------------------------------------
\1\ If a comparable formula is used, documentation of the
reliability and analytical soundness of the comparable formula must be
attached to this form.
\2\ For the purposes of 40 CFR part 112, public drinking water
intakes are analogous to public water systems as described at 40 CFR
143.2(c).
---------------------------------------------------------------------------
Yes ___ No ___
5. Does the facility have a total oil storage capacity greater than
or equal to 1 million gallons and has the facility experienced a
reportable oil discharge in an amount greater than or equal to 10,000
gallons within the last 5 years?
Yes ___ No ___
Certification
I certify under penalty of law that I have personally examined and
am familiar with the information submitted in this document, and that
based on my inquiry of those individuals responsible for obtaining this
information, I believe that the submitted information is true, accurate,
and complete.
________________________________________________________________________
Signature
________________________________________________________________________
Name (please type or print)
________________________________________________________________________
Title
________________________________________________________________________
Date
Attachment C-III--Calculation of the Planning Distance
1.0 Introduction
1.1 The facility owner or operator must evaluate whether the
facility is located at a distance such that a discharge from the
facility could cause injury to fish and wildlife and sensitive
environments or disrupt operations at a public drinking water intake. To
quantify that distance, EPA considered oil transport mechanisms over
land and on still, tidal influence, and moving navigable waters. EPA has
determined that the primary concern for calculation of a planning
distance is the transport of oil in navigable waters during adverse
weather conditions. Therefore, two formulas have been developed to
determine distances for planning purposes from the point of discharge at
the facility to the potential site of impact on moving and still waters,
respectively. The formula for oil transport on moving navigable water is
based on the velocity of the water body and the time interval for
arrival of response resources. The still water formula accounts for the
spread of discharged oil over the surface of the water. The method to
determine oil transport on tidal influence areas is based on the type of
oil discharged and the distance down current during ebb tide and up
current during flood tide to the point of maximum tidal influence.
1.2 EPA's formulas were designed to be simple to use. However,
facility owners or operators may calculate planning distances using more
sophisticated formulas, which take into account broader scientific or
engineering principles, or local conditions. Such comparable formulas
may result in different planning distances than EPA's formulas. In the
event that an alternative formula that is comparable to one contained in
this appendix is used to evaluate the criterion in 40 CFR
112.20(f)(1)(ii)(B) or (f)(1)(ii)(C), the owner or operator shall attach
documentation to the response plan cover sheet contained in appendix F
to this part that demonstrates the reliability and analytical soundness
of the alternative formula and shall notify the Regional Administrator
in
[[Page 64]]
writing that an alternative formula was used. \1\
---------------------------------------------------------------------------
\1\ For persistent oils or non-persistent oils, a worst case
trajectory model (i.e., an alternative formula) may be substituted for
the distance formulas described in still, moving, and tidal waters,
subject to Regional Administrator's review of the model. An example of
an alternative formula that is comparable to the one contained in this
appendix would be a worst case trajectory calculation based on credible
adverse winds, currents, and/or river stages, over a range of seasons,
weather conditions, and river stages. Based on historical information or
a spill trajectory model, the Agency may require that additional fish
and wildlife and sensitive environments or public drinking water intakes
also be protected.
---------------------------------------------------------------------------
1.3 A regulated facility may meet the criteria for the potential to
cause substantial harm to the environment without having to perform a
planning distance calculation. For facilities that meet the substantial
harm criteria because of inadequate secondary containment or oil spill
history, as listed in the flowchart in Attachment C-I to this appendix,
calculation of the planning distance is unnecessary. For facilities that
do not meet the substantial harm criteria for secondary containment or
oil spill history as listed in the flowchart, calculation of a planning
distance for proximity to fish and wildlife and sensitive environments
and public drinking water intakes is required, unless it is clear
without performing the calculation (e.g., the facility is located in a
wetland) that these areas would be impacted.
1.4 A facility owner or operator who must perform a planning
distance calculation on navigable water is only required to do so for
the type of navigable water conditions (i.e., moving water, still water,
or tidal- influenced water) applicable to the facility. If a facility
owner or operator determines that more than one type of navigable water
condition applies, then the facility owner or operator is required to
perform a planning distance calculation for each navigable water type to
determine the greatest single distance that oil may be transported. As a
result, the final planning distance for oil transport on water shall be
the greatest individual distance rather than a summation of each
calculated planning distance.
1.5 The planning distance formula for transport on moving waterways
contains three variables: the velocity of the navigable water (v), the
response time interval (t), and a conversion factor (c). The velocity,
v, is determined by using the Chezy-Manning equation, which, in this
case, models the flood flow rate of water in open channels. The Chezy-
Manning equation contains three variables which must be determined by
facility owners or operators. Manning's Roughness Coefficient (for flood
flow rates), n, can be determined from Table 1 of this attachment. The
hydraulic radius, r, can be estimated using the average mid-channel
depth from charts provided by the sources listed in Table 2 of this
attachment. The average slope of the river, s, can be determined using
topographic maps that can be ordered from the U.S. Geological Survey, as
listed in Table 2 of this attachment.
1.6 Table 3 of this attachment contains specified time intervals for
estimating the arrival of response resources at the scene of a
discharge. Assuming no prior planning, response resources should be able
to arrive at the discharge site within 12 hours of the discovery of any
oil discharge in Higher Volume Port Areas and within 24 hours in Great
Lakes and all other river, canal, inland, and nearshore areas. The
specified time intervals in Table 3 of appendix C are to be used only to
aid in the identification of whether a facility could cause substantial
harm to the environment. Once it is determined that a plan must be
developed for the facility, the owner or operator shall reference
appendix E to this part to determine appropriate resource levels and
response times. The specified time intervals of this appendix include a
3-hour time period for deployment of boom and other response equipment.
The Regional Administrator may identify additional areas as appropriate.
2.0 Oil Transport on Moving Navigable Waters
2.1 The facility owner or operator must use the following formula or
a comparable formula as described in Sec. 112.20(a)(3) to calculate the
planning distance for oil transport on moving navigable water:
d = v x t x c; where
d: the distance downstream from a facility within which fish and
wildlife and sensitive environments could be injured or a
public drinking water intake would be shut down in the event
of an oil discharge (in miles);
v: the velocity of the river/navigable water of concern (in ft/sec) as
determined by Chezy-Manning's equation (see below and Tables 1
and 2 of this attachment);
t: the time interval specified in Table 3 based upon the type of water
body and location (in hours); and
c: constant conversion factor 0.68 sec[omega] mile/hr[omega] ft (3600
sec/hr / 5280 ft/mile).
2.2 Chezy-Manning's equation is used to determine velocity:
v = 1.5/n x r\2/3\ x s\1/2\; where
v = the velocity of the river of concern (in ft/sec);
n = Manning's Roughness Coefficient from Table 1 of this attachment;
r = the hydraulic radius; the hydraulic radius can be approximated for
parabolic channels by multiplying the average
[[Page 65]]
mid-channel depth of the river (in feet) by 0.667 (sources for
obtaining the mid-channel depth are listed in Table 2 of this
attachment); and
s = the average slope of the river (unitless) obtained from U.S.
Geological Survey topographic maps at the address listed in
Table 2 of this attachment.
Table 1--Manning's Roughness Coefficient for Natural Streams
[Note: Coefficients are presented for high flow rates at or near flood
stage.]
------------------------------------------------------------------------
Roughness
Stream description coefficient
(n)
------------------------------------------------------------------------
Minor Streams (Top Width <100 ft.)
Clean:
Straight................................................. 0.03
Winding.................................................. 0.04
Sluggish (Weedy, deep pools):
No trees or brush........................................ 0.06
Trees and/or brush....................................... 0.10
Major Streams (Top Width 100 ft.)
Regular section:
(No boulders/brush)...................................... 0.035
Irregular section:
(Brush).................................................. 0.05
------------------------------------------------------------------------
Table 2--Sources of r and s for the Chezy-Manning Equation
All of the charts and related publications for navigational waters may
be ordered from:
Distribution Branch
(N/CG33)
National Ocean Service
Riverdale, Maryland 20737-1199
Phone: (301) 436-6990
There will be a charge for materials ordered and a VISA or Mastercard
will be accepted.
The mid-channel depth to be used in the calculation of the hydraulic
radius (r) can be obtained directly from the following sources:
Charts of Canadian Coastal and Great Lakes Waters:
Canadian Hydrographic Service
Department of Fisheries and Oceans Institute
P.O. Box 8080
1675 Russell Road
Ottawa, Ontario KIG 3H6
Canada
Phone: (613) 998-4931
Charts and Maps of Lower Mississippi River
(Gulf of Mexico to Ohio River and St. Francis, White, Big Sunflower,
Atchafalaya, and other rivers):
U.S. Army Corps of Engineers
Vicksburg District
P.O. Box 60
Vicksburg, Mississippi 39180
Phone: (601) 634-5000
Charts of Upper Mississippi River and Illinois Waterway to Lake
Michigan:
U.S. Army Corps of Engineers
Rock Island District
P.O. Box 2004
Rock Island, Illinois 61204
Phone: (309) 794-5552
Charts of Missouri River:
U.S. Army Corps of Engineers
Omaha District
6014 U.S. Post Office and Courthouse
Omaha, Nebraska 68102
Phone: (402) 221-3900
Charts of Ohio River:
U.S. Army Corps of Engineers
Ohio River Division
P.O. Box 1159
Cincinnati, Ohio 45201
Phone: (513) 684-3002
Charts of Tennessee Valley Authority Reservoirs, Tennessee River and
Tributaries:
Tennessee Valley Authority
Maps and Engineering Section
416 Union Avenue
Knoxville, Tennessee 37902
Phone: (615) 632-2921
Charts of Black Warrior River, Alabama River, Tombigbee River,
Apalachicola River and Pearl River:
U.S. Army Corps of Engineers
Mobile District
P.O. Box 2288
Mobile, Alabama 36628-0001
Phone: (205) 690-2511
The average slope of the river (s) may be obtained from topographic
maps:
U.S. Geological Survey
Map Distribution
Federal Center
Bldg. 41
Box 25286
Denver, Colorado 80225
Additional information can be obtained from the following sources:
1. The State's Department of Natural Resources (DNR) or the State's Aids
to Navigation office;
2. A knowledgeable local marina operator; or
3. A knowledgeable local water authority (e.g., State water commission)
2.3 The average slope of the river (s) can be determined from the
topographic maps using the following steps:
(1) Locate the facility on the map.
(2) Find the Normal Pool Elevation at the point of discharge from
the facility into the water (A).
(3) Find the Normal Pool Elevation of the public drinking water
intake or fish and wildlife and sensitive environment located downstream
(B) (Note: The owner or operator should use a minimum of 20 miles
downstream as a cutoff to obtain the average slope if the location of a
specific public drinking water intake or fish and wildlife and sensitive
environment is unknown).
(4) If the Normal Pool Elevation is not available, the elevation
contours can be used to find the slope. Determine elevation of the water
at the point of discharge from the facility (A). Determine the elevation
of the
[[Page 66]]
water at the appropriate distance downstream (B). The formula presented
below can be used to calculate the slope.
(5) Determine the distance (in miles) between the facility and the
public drinking water intake or fish and wildlife and sensitive
environments (C).
(6) Use the following formula to find the slope, which will be a
unitless value: Average Slope=[(A-B) (ft)/C (miles)] x [1 mile/5280
feet]
2.4 If it is not feasible to determine the slope and mid-channel
depth by the Chezy-Manning equation, then the river velocity can be
approximated on- site. A specific length, such as 100 feet, can be
marked off along the shoreline. A float can be dropped into the stream
above the mark, and the time required for the float to travel the
distance can be used to determine the velocity in feet per second.
However, this method will not yield an average velocity for the length
of the stream, but a velocity only for the specific location of
measurement. In addition, the flow rate will vary depending on weather
conditions such as wind and rainfall. It is recommended that facility
owners or operators repeat the measurement under a variety of conditions
to obtain the most accurate estimate of the surface water velocity under
adverse weather conditions.
2.5 The planning distance calculations for moving and still
navigable waters are based on worst case discharges of persistent oils.
Persistent oils are of concern because they can remain in the water for
significant periods of time and can potentially exist in large
quantities downstream. Owners or operators of facilities that store
persistent as well as non-persistent oils may use a comparable formula.
The volume of oil discharged is not included as part of the planning
distance calculation for moving navigable waters. Facilities that will
meet this substantial harm criterion are those with facility capacities
greater than or equal to 1 million gallons. It is assumed that these
facilities are capable of having an oil discharge of sufficient quantity
to cause injury to fish and wildlife and sensitive environments or shut
down a public drinking water intake. While owners or operators of
transfer facilities that store greater than or equal to 42,000 gallons
are not required to use a planning distance formula for purposes of the
substantial harm criteria, they should use a planning distance
calculation in the development of facility-specific response plans.
Table 3--Specified Time Intervals
------------------------------------------------------------------------
Substantial harm planning
Operating areas time (hrs)
------------------------------------------------------------------------
Higher volume port area................... 12 hour arrival + 3 hour
deployment = 15 hours.
Great Lakes............................... 24 hour arrival + 3 hour
deployment = 27 hours.
All other rivers and canals, inland, and 24 hour arrival + 3 hour
nearshore areas. deployment = 27 hours.
------------------------------------------------------------------------
2.6 Example of the Planning Distance Calculation for Oil Transport
on Moving Navigable Waters. The following example provides a sample
calculation using the planning distance formula for a facility
discharging oil into the Monongahela River:
(1) Solve for v by evaluating n, r, and s for the Chezy-Manning
equation:
Find the roughness coefficient, n, on Table 1 of this attachment for
a regular section of a major stream with a top width greater than 100
feet. The top width of the river can be found from the topographic map.
n = 0.035.
Find slope, s, where A = 727 feet, B = 710 feet, and C = 25 miles.
Solving:
s = [(727 ft - 1710 ft) / 25 miles] x [1 mile/5280 feet] = 1.3 x
10-4
The average mid-channel depth is found by averaging the mid-channel
depth for each mile along the length of the river between the facility
and the public drinking water intake or the fish or wildlife or
sensitive environment (or 20 miles downstream if applicable). This value
is multiplied by 0.667 to obtain the hydraulic radius. The mid-channel
depth is found by obtaining values for r and s from the sources shown in
Table 2 for the Monongahela River.
Solving:
r = 0.667 x 20 feet = 13.33 feet
Solve for v using:
v = 1.5/n x r\2/3\ x s\1/2\:
v = [1.5/0.035] x (13.33)\2/3\ x (1.3 x 10-4)\1/2\
v = 2.73 feet/second
(2) Find t from Table 3 of this attachment. The Monongahela River's
resource response time is 27 hours.
(3) Solve for planning distance, d:
d = v x t x c
d = (2.73 ft/sec) x (27 hours) x (0.68 sec[omega] mile/hr[omega] ft)
d = 50 miles
Therefore, 50 miles downstream is the appropriate planning distance for
this facility.
3.0 Oil Transport on Still Water
3.1 For bodies of water including lakes or ponds that do not have a
measurable velocity, the spreading of the oil over the surface must be
considered. Owners or operators of facilities located next to still
water bodies may use a comparable means of calculating
[[Page 67]]
the planning distance. If a comparable formula is used, documentation of
the reliability and analytical soundness of the comparable calculation
must be attached to the response plan cover sheet.
3.2 Example of the Planning Distance Calculation for Oil Transport
on Still Water. To assist those facilities which could potentially
discharge into a still body of water, the following analysis was
performed to provide an example of the type of formula that may be used
to calculate the planning distance. For this example, a worst case
discharge of 2,000,000 gallons is used.
(1) The surface area in square feet covered by an oil discharge on
still water, A1, can be determined by the following formula, \2\ where V
is the volume of the discharge in gallons and C is a constant conversion
factor:
---------------------------------------------------------------------------
\2\ Huang, J.C. and Monastero, F.C., 1982. Review of the State-of-
the-Art of Oil Pollution Models. Final report submitted to the American
Petroleum Institute by Raytheon Ocean Systems, Co., East Providence,
Rhode Island.
---------------------------------------------------------------------------
A1 = 10\5\ x V\3/4\ x C
C = 0.1643
A1 = 10\5\ x (2,000,000 gallons)\3/4\ x (0.1643)
A1 = 8.74 x 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. Although the oil will
not spread uniformly in all directions, it is assumed that the discharge
will spread from the shoreline into a semi-circle (this assumption does
not account for winds or wave action).
(3) The area of a circle=[dagger] r\2\
(4) To account for the assumption that oil will spread in a semi-
circular shape, the area of a circle is divided by 2 and is designated
as A2.
A2 = ([dagger] r\2\)/2
Solving for the radius, r, using the relationship A1 =
A2: 8.74 x 10\8\ ft\2\ = ([dagger]\2\)/2
Therefore, r = 23,586 ft
r = 23,586 ft / 5,280 ft/mile = 4.5 miles
Assuming a 20 knot wind under storm conditions:
1 knot = 1.15 miles/hour
20 knots x 1.15 miles/hour/knot = 23 miles/hr
Assuming that the oil slick moves at 3 percent of the wind's speed: \3\
---------------------------------------------------------------------------
\3\ Oil Spill Prevention & Control. National Spill Control School,
Corpus Christi State University, Thirteenth Edition, May 1990.
---------------------------------------------------------------------------
23 miles/hour x 0.03 = 0.69 miles/hour
(5) To estimate the distance that the oil will travel, use the times
required for response resources to arrive at different geographic
locations as shown in Table 3 of this attachment.
For example:
For Higher Volume Port Areas: 15 hrs x 0.69 miles/hr = 10.4 miles
For Great Lakes and all other areas: 27 hrs x 0.69 miles/hr = 18.6 miles
(6) The total distance that the oil will travel from the point of
discharge, including the distance due to spreading, is calculated as
follows:
Higher Volume Port Areas: d = 10.4 + 4.5 miles or approximately 15 miles
Great Lakes and all other areas: d = 18.6 + 4.5 miles or approximately
23 miles
4.0 Oil Transport on Tidal-Influence Areas
4.1 The planning distance method for tidal influence navigable water
is based on worst case discharges of persistent and non-persistent oils.
Persistent oils are of primary concern because they can potentially
cause harm over a greater distance. For persistent oils discharged into
tidal waters, the planning distance is 15 miles from the facility down
current during ebb tide and to the point of maximum tidal influence or
15 miles, whichever is less, during flood tide.
4.2 For non-persistent oils discharged into tidal waters, the
planning distance is 5 miles from the facility down current during ebb
tide and to the point of maximum tidal influence or 5 miles, whichever
is less, during flood tide.
4.3 Example of Determining the Planning Distance for Two Types of
Navigable Water Conditions. Below is an example of how to determine the
proper planning distance when a facility could impact two types of
navigable water conditions: moving water and tidal water.
(1) Facility X stores persistent oil and is located downstream from
locks along a slow moving river which is affected by tides. The river
velocity, v, is determined to be 0.5 feet/second from the Chezy-Manning
equation used to calculate oil transport on moving navigable waters. The
specified time interval, t, obtained from Table 3 of this attachment for
river areas is 27 hours. Therefore, solving for the planning distance,
d:
d = v x t x c
d = (0.5 ft/sec) x (27 hours) x (0.68 secmile/hrft)
d = 9.18 miles.
(2) However, the planning distance for maximum tidal influence down
current during ebb tide is 15 miles, which is greater than the
calculated 9.18 miles. Therefore, 15 miles downstream is the appropriate
planning distance for this facility.
5.0 Oil Transport Over Land
5.1 Facility owners or operators must evaluate the potential for oil
to be transported over land to navigable waters of the United States.
The owner or operator must evaluate the likelihood that portions of a
worst case discharge would reach navigable
[[Page 68]]
waters via open channel flow or from sheet flow across the land, or be
prevented from reaching navigable waters when trapped in natural or man-
made depressions excluding secondary containment structures.
5.2 As discharged oil travels over land, it may enter a storm drain
or open concrete channel intended for drainage. It is assumed that once
oil reaches such an inlet, it will flow into the receiving navigable
water. During a storm event, it is highly probable that the oil will
either flow into the drainage structures or follow the natural contours
of the land and flow into the navigable water. Expected minimum and
maximum velocities are provided as examples of open concrete channel and
pipe flow. The ranges listed below reflect minimum and maximum
velocities used as design criteria. \4\ The calculation below
demonstrates that the time required for oil to travel through a storm
drain or open concrete channel to navigable water is negligible and can
be considered instantaneous. The velocities are:
---------------------------------------------------------------------------
\4\ The design velocities were obtained from Howard County, Maryland
Department of Public Works' Storm Drainage Design Manual.
---------------------------------------------------------------------------
For open concrete channels:
maximum velocity = 25 feet per second
minimum velocity = 3 feet per second
For storm drains:
maximum velocity = 25 feet per second
minimum velocity = 2 feet per second
5.3 Assuming a length of 0.5 mile from the point of discharge
through an open concrete channel or concrete storm drain to a navigable
water, the travel times (distance/velocity) are:
1.8 minutes at a velocity of 25 feet per second
14.7 minutes at a velocity of 3 feet per second
22.0 minutes for at a velocity of 2 feet per second
5.4 The distances that shall be considered to determine the planning
distance are illustrated in Figure C-I of this attachment. The relevant
distances can be described as follows:
D1 = Distance from the nearest opportunity for discharge, X1,
to a storm drain or an open concrete channel leading to
navigable water.
D2 = Distance through the storm drain or open concrete channel to
navigable water.
D3 = Distance downstream from the outfall within which fish and wildlife
and sensitive environments could be injured or a public
drinking water intake would be shut down as determined by the
planning distance formula.
D4 = Distance from the nearest opportunity for discharge, X2,
to fish and wildlife and sensitive environments not bordering
navigable water.
5.5 A facility owner or operator whose nearest opportunity for
discharge is located within 0.5 mile of a navigable water must complete
the planning distance calculation (D3) for the type of navigable water
near the facility or use a comparable formula.
5.6 A facility that is located at a distance greater than 0.5 mile
from a navigable water must also calculate a planning distance (D3) if
it is in close proximity (i.e., D1 is less than 0.5 mile and other
factors are conducive to oil travel over land) to storm drains that flow
to navigable waters. Factors to be considered in assessing oil transport
over land to storm drains shall include the topography of the
surrounding area, drainage patterns, man-made barriers (excluding
secondary containment structures), and soil distribution and porosity.
Storm drains or concrete drainage channels that are located in close
proximity to the facility can provide a direct pathway to navigable
waters, regardless of the length of the drainage pipe. If D1 is less
than or equal to 0.5 mile, a discharge from the facility could pose
substantial harm because the time to travel the distance from the storm
drain to the navigable water (D2) is virtually instantaneous.
5.7 A facility's proximity to fish and wildlife and sensitive
environments not bordering a navigable water, as depicted as D4 in
Figure C-I of this attachment, must also be considered, regardless of
the distance from the facility to navigable waters. Factors to be
considered in assessing oil transport over land to fish and wildlife and
sensitive environments should include the topography of the surrounding
area, drainage patterns, man-made barriers (excluding secondary
containment structures), and soil distribution and porosity.
5.8 If a facility is not found to pose substantial harm to fish and
wildlife and sensitive environments not bordering navigable waters via
oil transport on land, then supporting documentation should be
maintained at the facility. However, such documentation should be
submitted with the response plan if a facility is found to pose
substantial harm.
[[Page 69]]
[GRAPHIC] [TIFF OMITTED] TC01MR92.010
[59 FR 34102, July 1, 1994, as amended at 65 FR 40798, June 30, 2000; 67
FR 47152, July 17, 2002]
[[Page 70]]
Sec. Appendix D to Part 112--Determination of a Worst Case Discharge
Planning Volume
1.0 Instructions
1.1 An owner or operator is required to complete this worksheet if
the facility meets the criteria, as presented in appendix C to this
part, or it is determined by the RA that the facility could cause
substantial harm to the environment. The calculation of a worst case
discharge planning volume is used for emergency planning purposes, and
is required in 40 CFR 112.20 for facility owners or operators who must
prepare a response plan. When planning for the amount of resources and
equipment necessary to respond to the worst case discharge planning
volume, adverse weather conditions must be taken into consideration. An
owner or operator is required to determine the facility's worst case
discharge planning volume from either part A of this appendix for an
onshore storage facility, or part B of this appendix for an onshore
production facility. The worksheet considers the provision of adequate
secondary containment at a facility.
1.2 For onshore storage facilities and production facilities,
permanently manifolded oil storage tanks are defined as tanks that are
designed, installed, and/or operated in such a manner that the multiple
tanks function as one storage unit (i.e., multiple tank volumes are
equalized). In a worst case discharge scenario, a single failure could
cause the discharge of the contents of more than one tank. The owner or
operator must provide evidence in the response plan that tanks with
common piping or piping systems are not operated as one unit. If such
evidence is provided and is acceptable to the RA, the worst case
discharge planning volume would be based on the capacity of the largest
oil storage tank within a common secondary containment area or the
largest oil storage tank within a single secondary containment area,
whichever is greater. For permanently manifolded tanks that function as
one oil storage unit, the worst case discharge planning volume would be
based on the combined oil storage capacity of all manifolded tanks or
the capacity of the largest single oil storage tank within a secondary
containment area, whichever is greater. For purposes of this rule,
permanently manifolded tanks that are separated by internal divisions
for each tank are considered to be single tanks and individual
manifolded tank volumes are not combined.
1.3 For production facilities, the presence of exploratory wells,
production wells, and oil storage tanks must be considered in the
calculation. Part B of this appendix takes these additional factors into
consideration and provides steps for their inclusion in the total worst
case discharge planning volume. Onshore oil production facilities may
include all wells, flowlines, separation equipment, storage facilities,
gathering lines, and auxiliary non-transportation-related equipment and
facilities in a single geographical oil or gas field operated by a
single operator. Although a potential worst case discharge planning
volume is calculated within each section of the worksheet, the final
worst case amount depends on the risk parameter that results in the
greatest volume.
1.4 Marine transportation-related transfer facilities that contain
fixed aboveground onshore structures used for bulk oil storage are
jointly regulated by EPA and the U.S. Coast Guard (USCG), and are termed
``complexes.'' Because the USCG also requires response plans from
transportation-related facilities to address a worst case discharge of
oil, a separate calculation for the worst case discharge planning volume
for USCG-related facilities is included in the USCG IFR (see appendix E
to this part, section 13, for availability). All complexes that are
jointly regulated by EPA and the USCG must compare both calculations for
worst case discharge planning volume derived by using the EPA and USCG
methodologies and plan for whichever volume is greater.
PART A: WORST CASE DISCHARGE PLANNING VOLUME CALCULATION FOR ONSHORE
STORAGE FACILITIES \1\
---------------------------------------------------------------------------
\1\ ``Storage facilities'' represent all facilities subject to this
part, excluding oil production facilities.
---------------------------------------------------------------------------
Part A of this worksheet is to be completed by the owner or operator
of an SPCC-regulated facility (excluding oil production facilities) if
the facility meets the criteria as presented in appendix C to this part,
or if it is determined by the RA that the facility could cause
substantial harm to the environment. If you are the owner or operator of
a production facility, please proceed to part B of this worksheet.
A.1 SINGLE-TANK FACILITIES
For facilities containing only one aboveground oil storage tank, the
worst case discharge planning volume equals the capacity of the oil
storage tank. If adequate secondary containment (sufficiently large to
contain the capacity of the aboveground oil storage tank plus sufficient
freeboard to allow for precipitation) exists for the oil storage tank,
multiply the capacity of the tank by 0.8.
(1) FINAL WORST CASE VOLUME: ____ GAL
(2) Do not proceed further.
[[Page 71]]
A.2 SECONDARY CONTAINMENT--MULTIPLE-TANK FACILITIES
Are all aboveground oil storage tanks or groups of aboveground oil
storage tanks at the facility without adequate secondary containment?
\2\
---------------------------------------------------------------------------
\2\ Secondary containment is described in 40 CFR part 112, subparts
A through C. Acceptable methods and structures for containment are also
given in 40 CFR 112.7(c)(1).
---------------------------------------------------------------------------
____ (Y/N)
A.2.1 If the answer is yes, the final worst case discharge planning
volume equals the total aboveground oil storage capacity at the
facility.
(1) FINAL WORST CASE VOLUME: ____ GAL
(2) Do not proceed further.
A.2.2 If the answer is no, calculate the total aboveground oil
storage capacity of tanks without adequate secondary containment. If all
aboveground oil storage tanks or groups of aboveground oil storage tanks
at the facility have adequate secondary containment, ENTER ``0'' (zero).
____ GAL
A.2.3 Calculate the capacity of the largest single aboveground oil
storage tank within an adequate secondary containment area or the
combined capacity of a group of aboveground oil storage tanks
permanently manifolded together, whichever is greater, PLUS THE VOLUME
FROM QUESTION A.2.2.
FINAL WORST CASE VOLUME: \3\ ____ GAL
---------------------------------------------------------------------------
\3\ All complexes that are jointly regulated by EPA and the USCG
must also calculate the worst case discharge planning volume for the
transportation-related portions of the facility and plan for whichever
volume is greater.
---------------------------------------------------------------------------
PART B: WORST CASE DISCHARGE PLANNING VOLUME CALCULATION FOR ONSHORE
PRODUCTION FACILITIES
Part B of this worksheet is to be completed by the owner or operator
of an SPCC-regulated oil production facility if the facility meets the
criteria presented in appendix C to this part, or if it is determined by
the RA that the facility could cause substantial harm. A production
facility consists of all wells (producing and exploratory) and related
equipment in a single geographical oil or gas field operated by a single
operator.
B.1 SINGLE-TANK FACILITIES
B.1.1 For facilities containing only one aboveground oil storage
tank, the worst case discharge planning volume equals the capacity of
the aboveground oil storage tank plus the production volume of the well
with the highest output at the facility. If adequate secondary
containment (sufficiently large to contain the capacity of the
aboveground oil storage tank plus sufficient freeboard to allow for
precipitation) exists for the storage tank, multiply the capacity of the
tank by 0.8.
B.1.2 For facilities with production wells producing by pumping, if
the rate of the well with the highest output is known and the number of
days the facility is unattended can be predicted, then the production
volume is equal to the pumping rate of the well multiplied by the
greatest number of days the facility is unattended.
B.1.3 If the pumping rate of the well with the highest output is
estimated or the maximum number of days the facility is unattended is
estimated, then the production volume is determined from the pumping
rate of the well multiplied by 1.5 times the greatest number of days
that the facility has been or is expected to be unattended.
B.1.4 Attachment D-1 to this appendix provides methods for
calculating the production volume for exploratory wells and production
wells producing under pressure.
(1) FINAL WORST CASE VOLUME: ____ GAL
(2) Do not proceed further.
B.2 SECONDARY CONTAINMENT--MULTIPLE-TANK FACILITIES
Are all aboveground oil storage tanks or groups of aboveground oil
storage tanks at the facility without adequate secondary containment?
___ (Y/N)
B.2.1 If the answer is yes, the final worst case volume equals the
total aboveground oil storage capacity without adequate secondary
containment plus the production volume of the well with the highest
output at the facility.
(1) For facilities with production wells producing by pumping, if
the rate of the well with the highest output is known and the number of
days the facility is unattended can be predicted, then the production
volume is equal to the pumping rate of the well multiplied by the
greatest number of days the facility is unattended.
(2) If the pumping rate of the well with the highest output is
estimated or the maximum number of days the facility is unattended is
estimated, then the production volume is determined from the pumping
rate of the well multiplied by 1.5 times the greatest number of days
that the facility has been or is expected to be unattended.
(3) Attachment D-1 to this appendix provides methods for calculating
the production volumes for exploratory wells and production wells
producing under pressure.
(A) FINAL WORST CASE VOLUME: ____ GAL
(B) Do not proceed further.
[[Page 72]]
B.2.2 If the answer is no, calculate the total aboveground oil
storage capacity of tanks without adequate secondary containment. If all
aboveground oil storage tanks or groups of aboveground oil storage tanks
at the facility have adequate secondary containment, ENTER ``0'' (zero).
____ GAL
B.2.3 Calculate the capacity of the largest single aboveground oil
storage tank within an adequate secondary containment area or the
combined capacity of a group of aboveground oil storage tanks
permanently manifolded together, whichever is greater, plus the
production volume of the well with the highest output, PLUS THE VOLUME
FROM QUESTION B.2.2. Attachment D-1 provides methods for calculating the
production volumes for exploratory wells and production wells producing
under pressure.
(1) FINAL WORST CASE VOLUME: \4\ ____ GAL
---------------------------------------------------------------------------
\4\ All complexes that are jointly regulated by EPA and the USCG
must also calculate the worst case discharge planning volume for the
transportation-related portions of the facility and plan for whichever
volume is greater.
---------------------------------------------------------------------------
(2) Do not proceed further.
Attachments to Appendix D
Attachment D-I--Methods To Calculate Production Volumes for Production
Facilities With Exploratory Wells or Production Wells Producing Under
Pressure
1.0 Introduction
The owner or operator of a production facility with exploratory
wells or production wells producing under pressure shall compare the
well rate of the highest output well (rate of well), in barrels per day,
to the ability of response equipment and personnel to recover the volume
of oil that could be discharged (rate of recovery), in barrels per day.
The result of this comparison will determine the method used to
calculate the production volume for the production facility. This
production volume is to be used to calculate the worst case discharge
planning volume in part B of this appendix.
2.0 Description of Methods
2.1 Method A
If the well rate would overwhelm the response efforts (i.e., rate of
well/rate of recovery =1), then the production volume would
be the 30-day forecasted well rate for a well 10,000 feet deep or less,
or the 45-day forecasted well rate for a well deeper than 10,000 feet.
(1) For wells 10,000 feet deep or less:
Production volume = 30 days x rate of well.
(2) For wells deeper than 10,000 feet:
Production volume = 45 days x rate of well.
2.2 Method B
2.2.1 If the rate of recovery would be greater than the well rate
(i.e., rate of well/rate of recovery <1), then the production volume
would equal the sum of two terms:
Production volume = discharge volume1 + discharge
volume2
2.2.2 The first term represents the volume of the oil discharged
from the well between the time of the blowout and the time the response
resources are on scene and recovering oil (discharge
volume1).
Discharge volume1 = (days unattended + days to respond) x
(rate of well)
2.2.3 The second term represents the volume of oil discharged from
the well after the response resources begin operating until the
discharge is stopped, adjusted for the recovery rate of the response
resources (discharge volume2).
(1) For wells 10,000 feet deep or less:
Discharge volume2 = [30 days-(days unattended + days to
respond)] x (rate of well) x (rate of well/rate of recovery)
(2) For wells deeper than 10,000 feet:
Discharge volume2 = [45 days-(days unattended + days to
respond)] x (rate of well) x (rate of well/rate of recovery)
3.0 Example
3.1 A facility consists of two production wells producing under
pressure, which are both less than 10,000 feet deep. The well rate of
well A is 5 barrels per day, and the well rate of well B is 10 barrels
per day. The facility is unattended for a maximum of 7 days. The
facility operator estimates that it will take 2 days to have response
equipment and personnel on scene and responding to a blowout, and that
the projected rate of recovery will be 20 barrels per day.
(1) First, the facility operator determines that the highest output
well is well B. The facility operator calculates the ratio of the rate
of well to the rate of recovery:
10 barrels per day/20 barrels per day = 0.5 Because the ratio is less
than one, the facility operator will use Method B to calculate
the production volume.
(2) The first term of the equation is:
Discharge volume1 = (7 days + 2 days) x (10 barrels per day)
= 90 barrels
(3) The second term of the equation is:
Discharge volume2 = [30 days--(7 days + 2 days)] x (10
barrels per day) x (0.5) = 105 barrels
(4) Therefore, the production volume is:
Production volume = 90 barrels + 105 barrels = 195 barrels
[[Page 73]]
3.2 If the recovery rate was 5 barrels per day, the ratio of rate of
well to rate of recovery would be 2, so the facility operator would use
Method A. The production volume would have been:
30 days x 10 barrels per day = 300 barrels
[59 FR 34110, July 1, 1994; 59 FR 49006, Sept. 26, 1994, as amended at
65 FR 40800, June 30, 2000; 67 FR 47152, July 17, 2002]
Sec. Appendix E to Part 112--Determination and Evaluation of Required
Response Resources for Facility Response Plans
1.0 Purpose and Definitions
1.1 The purpose of this appendix is to describe the procedures to
identify response resources to meet the requirements of Sec. 112.20. To
identify response resources to meet the facility response plan
requirements of 40 CFR 112.20(h), owners or operators shall follow this
appendix or, where not appropriate, shall clearly demonstrate in the
response plan why use of this appendix is not appropriate at the
facility and make comparable arrangements for response resources.
1.2 Definitions.
1.2.1 Animal fat means a non-petroleum oil, fat, or grease of
animal, fish, or marine mammal origin. Animal fats are further
classified based on specific gravity as follows:
(1) Group A--specific gravity less than 0.8.
(2) Group B--specific gravity equal to or greater than 0.8 and less
than 1.0.
(3) Group C--specific gravity equal to or greater than 1.0.
1.2.2 Nearshore is an operating area defined as extending seaward 12
miles from the boundary lines defined in 46 CFR part 7, except in the
Gulf of Mexico. In the Gulf of Mexico, it means the area extending 12
miles from the line of demarcation (COLREG lines) defined in 49 CFR
80.740 and 80.850.
1.2.3 Non-persistent oils or Group 1 oils include:
(1) A petroleum-based oil that, at the time of shipment, consists of
hydrocarbon fractions:
(A) At least 50 percent of which by volume, distill at a temperature
of 340 degrees C (645 degrees F); and
(B) At least 95 percent of which by volume, distill at a temperature
of 370 degrees C (700 degrees F); and
(2) A non-petroleum oil, other than an animal fat or vegetable oil,
with a specific gravity less than 0.8.
1.2.4 Non-petroleum oil means oil of any kind that is not petroleum-
based, including but not limited to: fats, oils, and greases of animal,
fish, or marine mammal origin; and vegetable oils, including oils from
seeds, nuts, fruits, and kernels.
1.2.5 Ocean means the nearshore area.
1.2.6 Operating area means Rivers and Canals, Inland, Nearshore, and
Great Lakes geographic location(s) in which a facility is handling,
storing, or transporting oil.
1.2.7 Operating environment means Rivers and Canals, Inland, Great
Lakes, or Ocean. These terms are used to define the conditions in which
response equipment is designed to function.
1.2.8 Persistent oils include:
(1) A petroleum-based oil that does not meet the distillation
criteria for a non-persistent oil. Persistent oils are further
classified based on specific gravity as follows:
(A) Group 2--specific gravity less than 0.85;
(B) Group 3--specific gravity equal to or greater than 0.85 and less
than 0.95;
(C) Group 4--specific gravity equal to or greater than 0.95 and less
than 1.0; or
(D) Group 5--specific gravity equal to or greater than 1.0.
(2) A non-petroleum oil, other than an animal fat or vegetable oil,
with a specific gravity of 0.8 or greater. These oils are further
classified based on specific gravity as follows:
(A) Group 2--specific gravity equal to or greater than 0.8 and less
than 0.85;
(B) Group 3--specific gravity equal to or greater than 0.85 and less
than 0.95;
(C) Group 4--specific gravity equal to or greater than 0.95 and less
than 1.0; or
(D) Group 5--specific gravity equal to or greater than 1.0.
1.2.9 Vegetable oil means a non-petroleum oil or fat of vegetable
origin, including but not limited to oils and fats derived from plant
seeds, nuts, fruits, and kernels. Vegetable oils are further classified
based on specific gravity as follows:
(1) Group A--specific gravity less than 0.8.
(2) Group B--specific gravity equal to or greater than 0.8 and less
than 1.0.
(3) Group C--specific gravity equal to or greater than 1.0.
1.2.10 Other definitions are included in Sec. 112.2, section 1.1 of
appendix C, and section 3.0 of appendix F.
2.0 Equipment Operability and Readiness
2.1 All equipment identified in a response plan must be designed to
operate in the conditions expected in the facility's geographic area
(i.e., operating environment). These conditions vary widely based on
location and season. Therefore, it is difficult to identify a single
stockpile of response equipment that will function effectively in each
geographic location (i.e., operating area).
2.2 Facilities handling, storing, or transporting oil in more than
one operating environment as indicated in Table 1 of this appendix must
identify equipment capable of successfully functioning in each operating
environment.
[[Page 74]]
2.3 When identifying equipment for the response plan (based on the
use of this appendix), a facility owner or operator must consider the
inherent limitations of the operability of equipment components and
response systems. The criteria in Table 1 of this appendix shall be used
to evaluate the operability in a given environment. These criteria
reflect the general conditions in certain operating environments.
2.3.1 The Regional Administrator may require documentation that the
boom identified in a facility response plan meets the criteria in Table
1 of this appendix. Absent acceptable documentation, the Regional
Administrator may require that the boom be tested to demonstrate that it
meets the criteria in Table 1 of this appendix. Testing must be in
accordance with ASTM F 715, ASTM F 989, or other tests approved by EPA
as deemed appropriate (see appendix E to this part, section 13, for
general availability of documents).
2.4 Table 1 of this appendix lists criteria for oil recovery devices
and boom. All other equipment necessary to sustain or support response
operations in an operating environment must be designed to function in
the same conditions. For example, boats that deploy or support skimmers
or boom must be capable of being safely operated in the significant wave
heights listed for the applicable operating environment.
2.5 A facility owner or operator shall refer to the applicable Area
Contingency Plan (ACP), where available, to determine if ice, debris,
and weather-related visibility are significant factors to evaluate the
operability of equipment. The ACP may also identify the average
temperature ranges expected in the facility's operating area. All
equipment identified in a response plan must be designed to operate
within those conditions or ranges.
2.6 This appendix provides information on response resource
mobilization and response times. The distance of the facility from the
storage location of the response resources must be used to determine
whether the resources can arrive on-scene within the stated time. A
facility owner or operator shall include the time for notification,
mobilization, and travel of resources identified to meet the medium and
Tier 1 worst case discharge requirements identified in sections 4.3 and
9.3 of this appendix (for medium discharges) and section 5.3 of this
appendix (for worst case discharges). The facility owner or operator
must plan for notification and mobilization of Tier 2 and 3 response
resources as necessary to meet the requirements for arrival on-scene in
accordance with section 5.3 of this appendix. An on-water speed of 5
knots and a land speed of 35 miles per hour is assumed, unless the
facility owner or operator can demonstrate otherwise.
2.7 In identifying equipment, the facility owner or operator shall
list the storage location, quantity, and manufacturer's make and model.
For oil recovery devices, the effective daily recovery capacity, as
determined using section 6 of this appendix, must be included. For boom,
the overall boom height (draft and freeboard) shall be included. A
facility owner or operator is responsible for ensuring that the
identified boom has compatible connectors.
3.0 Determining Response Resources Required for Small Discharges--
Petroleum Oils and Non-Petroleum Oils Other Than Animal Fats and
Vegetable Oils
3.1 A facility owner or operator shall identify sufficient response
resources available, by contract or other approved means as described in
Sec. 112.2, to respond to a small discharge. A small discharge is
defined as any discharge volume less than or equal to 2,100 gallons, but
not to exceed the calculated worst case discharge. The equipment must be
designed to function in the operating environment at the point of
expected use.
3.2 Complexes that are regulated by EPA and the United States Coast
Guard (USCG) must also consider planning quantities for the
transportation-related transfer portion of the facility.
3.2.1 Petroleum oils. The USCG planning level that corresponds to
EPA's ``small discharge'' is termed ``the average most probable
discharge.'' A USCG rule found at 33 CFR 154.1020 defines ``the average
most probable discharge'' as the lesser of 50 barrels (2,100 gallons) or
1 percent of the volume of the worst case discharge. Owners or operators
of complexes that handle, store, or transport petroleum oils must
compare oil discharge volumes for a small discharge and an average most
probable discharge, and plan for whichever quantity is greater.
3.2.2 Non-petroleum oils other than animal fats and vegetable oils.
Owners or operators of complexes that handle, store, or transport non-
petroleum oils other than animal fats and vegetable oils must plan for
oil discharge volumes for a small discharge. There is no USCG planning
level that directly corresponds to EPA's ``small discharge.'' However,
the USCG (at 33 CFR 154.545) has requirements to identify equipment to
contain oil resulting from an operational discharge.
3.3 The response resources shall, as appropriate, include:
3.3.1 One thousand feet of containment boom (or, for complexes with
marine transfer components, 1,000 feet of containment boom or two times
the length of the largest vessel that regularly conducts oil transfers
to or from the facility, whichever is greater), and a means of deploying
it within 1 hour of the discovery of a discharge;
3.3.2 Oil recovery devices with an effective daily recovery capacity
equal to the amount of oil discharged in a small discharge or greater
which is available at the
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facility within 2 hours of the detection of an oil discharge; and
3.3.3 Oil storage capacity for recovered oily material indicated in
section 12.2 of this appendix.
4.0 Determining Response Resources Required for Medium Discharges--
Petroleum Oils and Non-Petroleum Oils Other Than Animal Fats and
Vegetable Oils
4.1 A facility owner or operator shall identify sufficient response
resources available, by contract or other approved means as described in
Sec. 112.2, to respond to a medium discharge of oil for that facility.
This will require response resources capable of containing and
collecting up to 36,000 gallons of oil or 10 percent of the worst case
discharge, whichever is less. All equipment identified must be designed
to operate in the applicable operating environment specified in Table 1
of this appendix.
4.2 Complexes that are regulated by EPA and the USCG must also
consider planning quantities for the transportation-related transfer
portion of the facility.
4.2.1 Petroleum oils. The USCG planning level that corresponds to
EPA's ``medium discharge'' is termed ``the maximum most probable
discharge.'' The USCG rule found at 33 CFR part 154 defines ``the
maximum most probable discharge'' as a discharge of 1,200 barrels
(50,400 gallons) or 10 percent of the worst case discharge, whichever is
less. Owners or operators of complexes that handle, store, or transport
petroleum oils must compare calculated discharge volumes for a medium
discharge and a maximum most probable discharge, and plan for whichever
quantity is greater.
4.2.2 Non-petroleum oils other than animal fats and vegetable oils.
Owners or operators of complexes that handle, store, or transport non-
petroleum oils other than animal fats and vegetable oils must plan for
oil discharge volumes for a medium discharge. For non-petroleum oils,
there is no USCG planning level that directly corresponds to EPA's
``medium discharge.''
4.3 Oil recovery devices identified to meet the applicable medium
discharge volume planning criteria must be located such that they are
capable of arriving on-scene within 6 hours in higher volume port areas
and the Great Lakes and within 12 hours in all other areas. Higher
volume port areas and Great Lakes areas are defined in section 1.1 of
appendix C to this part.
4.4 Because rapid control, containment, and removal of oil are
critical to reduce discharge impact, the owner or operator must
determine response resources using an effective daily recovery capacity
for oil recovery devices equal to 50 percent of the planning volume
applicable for the facility as determined in section 4.1 of this
appendix. The effective daily recovery capacity for oil recovery devices
identified in the plan must be determined using the criteria in section
6 of this appendix.
4.5 In addition to oil recovery capacity, the plan shall, as
appropriate, identify sufficient quantity of containment boom available,
by contract or other approved means as described in Sec. 112.2, to
arrive within the required response times for oil collection and
containment and for protection of fish and wildlife and sensitive
environments. For further description of fish and wildlife and sensitive
environments, see Appendices I, II, and III to DOC/NOAA's ``Guidance for
Facility and Vessel Response Plans: Fish and Wildlife and Sensitive
Environments'' (see appendix E to this part, section 13, for
availability) and the applicable ACP. Although 40 CFR part 112 does not
set required quantities of boom for oil collection and containment, the
response plan shall identify and ensure, by contract or other approved
means as described in Sec. 112.2, the availability of the quantity of
boom identified in the plan for this purpose.
4.6 The plan must indicate the availability of temporary storage
capacity to meet section 12.2 of this appendix. If available storage
capacity is insufficient to meet this level, then the effective daily
recovery capacity must be derated (downgraded) to the limits of the
available storage capacity.
4.7 The following is an example of a medium discharge volume
planning calculation for equipment identification in a higher volume
port area: The facility's largest aboveground storage tank volume is
840,000 gallons. Ten percent of this capacity is 84,000 gallons. Because
10 percent of the facility's largest tank, or 84,000 gallons, is greater
than 36,000 gallons, 36,000 gallons is used as the planning volume. The
effective daily recovery capacity is 50 percent of the planning volume,
or 18,000 gallons per day. The ability of oil recovery devices to meet
this capacity must be calculated using the procedures in section 6 of
this appendix. Temporary storage capacity available on-scene must equal
twice the daily recovery capacity as indicated in section 12.2 of this
appendix, or 36,000 gallons per day. This is the information the
facility owner or operator must use to identify and ensure the
availability of the required response resources, by contract or other
approved means as described in Sec. 112.2. The facility owner shall
also identify how much boom is available for use.
5.0 Determining Response Resources Required for the Worst Case Discharge
to the Maximum Extent Practicable
5.1 A facility owner or operator shall identify and ensure the
availability of, by
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contract or other approved means as described in Sec. 112.2, sufficient
response resources to respond to the worst case discharge of oil to the
maximum extent practicable. Sections 7 and 10 of this appendix describe
the method to determine the necessary response resources. Worksheets are
provided as Attachments E-1 and E-2 at the end of this appendix to
simplify the procedures involved in calculating the planning volume for
response resources for the worst case discharge.
5.2 Complexes that are regulated by EPA and the USCG must also
consider planning for the worst case discharge at the transportation-
related portion of the facility. The USCG requires that transportation-
related facility owners or operators use a different calculation for the
worst case discharge in the revisions to 33 CFR part 154. Owners or
operators of complex facilities that are regulated by EPA and the USCG
must compare both calculations of worst case discharge derived by EPA
and the USCG and plan for whichever volume is greater.
5.3 Oil discharge response resources identified in the response plan
and available, by contract or other approved means as described in Sec.
112.2, to meet the applicable worst case discharge planning volume must
be located such that they are capable of arriving at the scene of a
discharge within the times specified for the applicable response tier
listed as follows
----------------------------------------------------------------------------------------------------------------
Tier 1 (in Tier 2 (in Tier 3 (in
hours) hours) hours)
----------------------------------------------------------------------------------------------------------------
Higher volume port areas................................................. 6 30 54
Great Lakes.............................................................. 12 36 60
All other river and canal, inland, and nearshore areas................... 12 36 60
----------------------------------------------------------------------------------------------------------------
The three levels of response tiers apply to the amount of time in
which facility owners or operators must plan for response resources to
arrive at the scene of a discharge to respond to the worst case
discharge planning volume. For example, at a worst case discharge in an
inland area, the first tier of response resources (i.e., that amount of
on-water and shoreline cleanup capacity necessary to respond to the
fraction of the worst case discharge as indicated through the series of
steps described in sections 7.2 and 7.3 or sections 10.2 and 10.3 of
this appendix) would arrive at the scene of the discharge within 12
hours; the second tier of response resources would arrive within 36
hours; and the third tier of response resources would arrive within 60
hours.
5.4 The effective daily recovery capacity for oil recovery devices
identified in the response plan must be determined using the criteria in
section 6 of this appendix. A facility owner or operator shall identify
the storage locations of all response resources used for each tier. The
owner or operator of a facility whose required daily recovery capacity
exceeds the applicable contracting caps in Table 5 of this appendix
shall, as appropriate, identify sources of additional equipment, their
location, and the arrangements made to obtain this equipment during a
response. The owner or operator of a facility whose calculated planning
volume exceeds the applicable contracting caps in Table 5 of this
appendix shall, as appropriate, identify sources of additional equipment
equal to twice the cap listed in Tier 3 or the amount necessary to reach
the calculated planning volume, whichever is lower. The resources
identified above the cap shall be capable of arriving on-scene not later
than the Tier 3 response times in section 5.3 of this appendix. No
contract is required. While general listings of available response
equipment may be used to identify additional sources (i.e., ``public''
resources vs. ``private'' resources), the response plan shall identify
the specific sources, locations, and quantities of equipment that a
facility owner or operator has considered in his or her planning. When
listing USCG-classified oil spill removal organization(s) that have
sufficient removal capacity to recover the volume above the response
capacity cap for the specific facility, as specified in Table 5 of this
appendix, it is not necessary to list specific quantities of equipment.
5.5 A facility owner or operator shall identify the availability of
temporary storage capacity to meet section 12.2 of this appendix. If
available storage capacity is insufficient, then the effective daily
recovery capacity must be derated (downgraded) to the limits of the
available storage capacity.
5.6 When selecting response resources necessary to meet the response
plan requirements, the facility owner or operator shall, as appropriate,
ensure that a portion of those resources is capable of being used in
close-to-shore response activities in shallow water. For any EPA-
regulated facility that is required to plan for response in shallow
water, at least 20 percent of the on-water response equipment identified
for the applicable operating area shall, as appropriate, be capable of
operating in water of 6 feet or less depth.
5.7 In addition to oil spill recovery devices, a facility owner or
operator shall identify sufficient quantities of boom that are
available, by contract or other approved means as described in Sec.
112.2, to arrive on-
[[Page 77]]
scene within the specified response times for oil containment and
collection. The specific quantity of boom required for collection and
containment will depend on the facility-specific information and
response strategies employed. A facility owner or operator shall, as
appropriate, also identify sufficient quantities of oil containment boom
to protect fish and wildlife and sensitive environments. For further
description of fish and wildlife and sensitive environments, see
Appendices I, II, and III to DOC/NOAA's ``Guidance for Facility and
Vessel Response Plans: Fish and Wildlife and Sensitive Environments''
(see appendix E to this part, section 13, for availability), and the
applicable ACP. Refer to this guidance document for the number of days
and geographic areas (i.e., operating environments) specified in Table 2
and Table 6 of this appendix.
5.8 A facility owner or operator shall also identify, by contract or
other approved means as described in Sec. 112.2, the availability of an
oil spill removal organization(s) (as described in Sec. 112.2) capable
of responding to a shoreline cleanup operation involving the calculated
volume of oil and emulsified oil that might impact the affected
shoreline. The volume of oil that shall, as appropriate, be planned for
is calculated through the application of factors contained in Tables 2,
3, 6, and 7 of this appendix. The volume calculated from these tables is
intended to assist the facility owner or operator to identify an oil
spill removal organization with sufficient resources and expertise.
6.0 Determining Effective Daily Recovery Capacity for Oil Recovery
Devices
6.1 Oil recovery devices identified by a facility owner or operator
must be identified by the manufacturer, model, and effective daily
recovery capacity. These capacities must be used to determine whether
there is sufficient capacity to meet the applicable planning criteria
for a small discharge, a medium discharge, and a worst case discharge to
the maximum extent practicable.
6.2 To determine the effective daily recovery capacity of oil
recovery devices, the formula listed in section 6.2.1 of this appendix
shall be used. This formula considers potential limitations due to
available daylight, weather, sea state, and percentage of emulsified oil
in the recovered material. The RA may assign a lower efficiency factor
to equipment listed in a response plan if it is determined that such a
reduction is warranted.
6.2.1 The following formula shall be used to calculate the effective
daily recovery capacity:
R = T x 24 hours x E
where:
R--Effective daily recovery capacity;
T--Throughput rate in barrels per hour (nameplate capacity); and
E--20 percent efficiency factor (or lower factor as determined by the
Regional Administrator).
6.2.2 For those devices in which the pump limits the throughput of
liquid, throughput rate shall be calculated using the pump capacity.
6.2.3 For belt or moptype devices, the throughput rate shall be
calculated using the speed of the belt or mop through the device,
assumed thickness of oil adhering to or collected by the device, and
surface area of the belt or mop. For purposes of this calculation, the
assumed thickness of oil will be \1/4\ inch.
6.2.4 Facility owners or operators that include oil recovery devices
whose throughput is not measurable using a pump capacity or belt/mop
speed may provide information to support an alternative method of
calculation. This information must be submitted following the procedures
in section 6.3.2 of this appendix.
6.3 As an alternative to section 6.2 of this appendix, a facility
owner or operator may submit adequate evidence that a different
effective daily recovery capacity should be applied for a specific oil
recovery device. Adequate evidence is actual verified performance data
in discharge conditions or tests using American Society of Testing and
Materials (ASTM) Standard F 631-99, F 808-83 (1999), or an equivalent
test approved by EPA as deemed appropriate (see Appendix E to this part,
section 13, for general availability of documents).
6.3.1 The following formula must be used to calculate the effective
daily recovery capacity under this alternative:
R = D x U
where:
R--Effective daily recovery capacity;
D--Average Oil Recovery Rate in barrels per hour (Item 26 in F 808-83;
Item 13.2.16 in F 631-99; or actual performance data); and
U--Hours per day that equipment can operate under discharge conditions.
Ten hours per day must be used unless a facility owner or
operator can demonstrate that the recovery operation can be
sustained for longer periods.
6.3.2 A facility owner or operator submitting a response plan shall
provide data that supports the effective daily recovery capacities for
the oil recovery devices listed. The following is an example of these
calculations:
(1) A weir skimmer identified in a response plan has a
manufacturer's rated throughput at the pump of 267 gallons per minute
(gpm).
267 gpm = 381 barrels per hour (bph)
R = 381 bph x 24 hr/day x 0.2 = 1,829 barrels per day
[[Page 78]]
(2) After testing using ASTM procedures, the skimmer's oil recovery
rate is determined to be 220 gpm. The facility owner or operator
identifies sufficient resources available to support operations for 12
hours per day.
220 gpm = 314 bph
R = 314 bph x 12 hr/day = 3,768 barrels per day
(3) The facility owner or operator will be able to use the higher
capacity if sufficient temporary oil storage capacity is available.
Determination of alternative efficiency factors under section 6.2 of
this appendix or the acceptability of an alternative effective daily
recovery capacity under section 6.3 of this appendix will be made by the
Regional Administrator as deemed appropriate.
7.0 Calculating Planning Volumes for a Worst Case Discharge--Petroleum
Oils and Non-Petroleum Oils Other Than Animal Fats and Vegetable Oils
7.1 A facility owner or operator shall plan for a response to the
facility's worst case discharge. The planning for on-water oil recovery
must take into account a loss of some oil to the environment due to
evaporative and natural dissipation, potential increases in volume due
to emulsification, and the potential for deposition of oil on the
shoreline. The procedures for non-petroleum oils other than animal fats
and vegetable oils are discussed in section 7.7 of this appendix.
7.2 The following procedures must be used by a facility owner or
operator in determining the required on-water oil recovery capacity:
7.2.1 The following must be determined: the worst case discharge
volume of oil in the facility; the appropriate group(s) for the types of
oil handled, stored, or transported at the facility [persistent (Groups
2, 3, 4, 5) or non-persistent (Group 1)]; and the facility's specific
operating area. See sections 1.2.3 and 1.2.8 of this appendix for the
definitions of non-persistent and persistent oils, respectively.
Facilities that handle, store, or transport oil from different oil
groups must calculate each group separately, unless the oil group
constitutes 10 percent or less by volume of the facility's total oil
storage capacity. This information is to be used with Table 2 of this
appendix to determine the percentages of the total volume to be used for
removal capacity planning. Table 2 of this appendix divides the volume
into three categories: oil lost to the environment; oil deposited on the
shoreline; and oil available for on-water recovery.
7.2.2 The on-water oil recovery volume shall, as appropriate, be
adjusted using the appropriate emulsification factor found in Table 3 of
this appendix. Facilities that handle, store, or transport oil from
different petroleum groups must compare the on-water recovery volume for
each oil group (unless the oil group constitutes 10 percent or less by
volume of the facility's total storage capacity) and use the calculation
that results in the largest on-water oil recovery volume to plan for the
amount of response resources for a worst case discharge.
7.2.3 The adjusted volume is multiplied by the on-water oil recovery
resource mobilization factor found in Table 4 of this appendix from the
appropriate operating area and response tier to determine the total on-
water oil recovery capacity in barrels per day that must be identified
or contracted to arrive on-scene within the applicable time for each
response tier. Three tiers are specified. For higher volume port areas,
the contracted tiers of resources must be located such that they are
capable of arriving on-scene within 6 hours for Tier 1, 30 hours for
Tier 2, and 54 hours for Tier 3 of the discovery of an oil discharge.
For all other rivers and canals, inland, nearshore areas, and the Great
Lakes, these tiers are 12, 36, and 60 hours.
7.2.4 The resulting on-water oil recovery capacity in barrels per
day for each tier is used to identify response resources necessary to
sustain operations in the applicable operating area. The equipment shall
be capable of sustaining operations for the time period specified in
Table 2 of this appendix. The facility owner or operator shall identify
and ensure the availability, by contract or other approved means as
described in Sec. 112.2, of sufficient oil spill recovery devices to
provide the effective daily oil recovery capacity required. If the
required capacity exceeds the applicable cap specified in Table 5 of
this appendix, then a facility owner or operator shall ensure, by
contract or other approved means as described in Sec. 112.2, only for
the quantity of resources required to meet the cap, but shall identify
sources of additional resources as indicated in section 5.4 of this
appendix. The owner or operator of a facility whose planning volume
exceeded the cap in 1993 must make arrangements to identify and ensure
the availability, by contract or other approved means as described in
Sec. 112.2, for additional capacity to be under contract by 1998 or
2003, as appropriate. For a facility that handles multiple groups of
oil, the required effective daily recovery capacity for each oil group
is calculated before applying the cap. The oil group calculation
resulting in the largest on-water recovery volume must be used to plan
for the amount of response resources for a worst case discharge, unless
the oil group comprises 10 percent or less by volume of the facility's
total oil storage capacity.
7.3 The procedures discussed in sections 7.3.1-7.3.3 of this
appendix must be used to calculate the planning volume for identifying
shoreline cleanup capacity (for Group 1 through Group 4 oils).
7.3.1 The following must be determined: the worst case discharge
volume of oil for
[[Page 79]]
the facility; the appropriate group(s) for the types of oil handled,
stored, or transported at the facility [persistent (Groups 2, 3, or 4)
or non-persistent (Group 1)]; and the geographic area(s) in which the
facility operates (i.e., operating areas). For a facility handling,
storing, or transporting oil from different groups, each group must be
calculated separately. Using this information, Table 2 of this appendix
must be used to determine the percentages of the total volume to be used
for shoreline cleanup resource planning.
7.3.2 The shoreline cleanup planning volume must be adjusted to
reflect an emulsification factor using the same procedure as described
in section 7.2.2 of this appendix.
7.3.3 The resulting volume shall be used to identify an oil spill
removal organization with the appropriate shoreline cleanup capability.
7.4 A response plan must identify response resources with fire
fighting capability. The owner or operator of a facility that handles,
stores, or transports Group 1 through Group 4 oils that does not have
adequate fire fighting resources located at the facility or that cannot
rely on sufficient local fire fighting resources must identify adequate
fire fighting resources. The facility owner or operator shall ensure, by
contract or other approved means as described in Sec. 112.2, the
availability of these resources. The response plan must also identify an
individual located at the facility to work with the fire department for
Group 1 through Group 4 oil fires. This individual shall also verify
that sufficient well-trained fire fighting resources are available
within a reasonable response time to a worst case scenario. The
individual may be the qualified individual identified in the response
plan or another appropriate individual located at the facility.
7.5 The following is an example of the procedure described above in
sections 7.2 and 7.3 of this appendix: A facility with a 270,000 barrel
(11.3 million gallons) capacity for 6 oil (specific gravity 0.96) is
located in a higher volume port area. The facility is on a peninsula and
has docks on both the ocean and bay sides. The facility has four
aboveground oil storage tanks with a combined total capacity of 80,000
barrels (3.36 million gallons) and no secondary containment. The
remaining facility tanks are inside secondary containment structures.
The largest aboveground oil storage tank (90,000 barrels or 3.78 million
gallons) has its own secondary containment. Two 50,000 barrel (2.1
million gallon) tanks (that are not connected by a manifold) are within
a common secondary containment tank area, which is capable of holding
100,000 barrels (4.2 million gallons) plus sufficient freeboard.
7.5.1 The worst case discharge for the facility is calculated by
adding the capacity of all aboveground oil storage tanks without
secondary containment (80,000 barrels) plus the capacity of the largest
aboveground oil storage tank inside secondary containment. The resulting
worst case discharge volume is 170,000 barrels or 7.14 million gallons.
7.5.2 Because the requirements for Tiers 1, 2, and 3 for inland and
nearshore exceed the caps identified in Table 5 of this appendix, the
facility owner will contract for a response to 10,000 barrels per day
(bpd) for Tier 1, 20,000 bpd for Tier 2, and 40,000 bpd for Tier 3.
Resources for the remaining 7,850 bpd for Tier 1, 9,750 bpd for Tier 2,
and 7,600 bpd for Tier 3 shall be identified but need not be contracted
for in advance. The facility owner or operator shall, as appropriate,
also identify or contract for quantities of boom identified in their
response plan for the protection of fish and wildlife and sensitive
environments within the area potentially impacted by a worst case
discharge from the facility. For further description of fish and
wildlife and sensitive environments, see Appendices I, II, and III to
DOC/NOAA's ``Guidance for Facility and Vessel Response Plans: Fish and
Wildlife and Sensitive Environments,'' (see appendix E to this part,
section 13, for availability) and the applicable ACP. Attachment C-III
to Appendix C provides a method for calculating a planning distance to
fish and wildlife and sensitive environments and public drinking water
intakes that may be impacted in the event of a worst case discharge.
7.6 The procedures discussed in sections 7.6.1-7.6.3 of this
appendix must be used to determine appropriate response resources for
facilities with Group 5 oils.
7.6.1 The owner or operator of a facility that handles, stores, or
transports Group 5 oils shall, as appropriate, identify the response
resources available by contract or other approved means, as described in
Sec. 112.2. The equipment identified in a response plan shall, as
appropriate, include:
(1) Sonar, sampling equipment, or other methods for locating the oil
on the bottom or suspended in the water column;
(2) Containment boom, sorbent boom, silt curtains, or other methods
for containing the oil that may remain floating on the surface or to
reduce spreading on the bottom;
(3) Dredges, pumps, or other equipment necessary to recover oil from
the bottom and shoreline;
(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.
[[Page 80]]
7.6.3 A response plan must identify response resources with fire
fighting capability. The owner or operator of a facility that handles,
stores, or transports Group 5 oils that does not have adequate fire
fighting resources located at the facility or that cannot rely on
sufficient local fire fighting resources must identify adequate fire
fighting resources. The facility owner or operator shall ensure, by
contract or other approved means as described in Sec. 112.2, the
availability of these resources. The response plan shall also identify
an individual located at the facility to work with the fire department
for Group 5 oil fires. This individual shall also verify that sufficient
well-trained fire fighting resources are available within a reasonable
response time to respond to a worst case discharge. The individual may
be the qualified individual identified in the response plan or another
appropriate individual located at the facility.
7.7 Non-petroleum oils other than animal fats and vegetable oils.
The procedures described in sections 7.7.1 through 7.7.5 of this
appendix must be used to determine appropriate response plan development
and evaluation criteria for facilities that handle, store, or transport
non-petroleum oils other than animal fats and vegetable oils. Refer to
section 11 of this appendix for information on the limitations on the
use of chemical agents for inland and nearshore areas.
7.7.1 An owner or operator of a facility that handles, stores, or
transports non-petroleum oils other than animal fats and vegetable oils
must provide information in his or her plan that identifies:
(1) Procedures and strategies for responding to a worst case
discharge to the maximum extent practicable; and
(2) Sources of the equipment and supplies necessary to locate,
recover, and mitigate such a discharge.
7.7.2 An owner or operator of a facility that handles, stores, or
transports non-petroleum oils other than animal fats and vegetable oils
must ensure that any equipment identified in a response plan is capable
of operating in the conditions expected in the geographic area(s) (i.e.,
operating environments) in which the facility operates using the
criteria in Table 1 of this appendix. When evaluating the operability of
equipment, the facility owner or operator must consider limitations that
are identified in the appropriate ACPs, including:
(1) Ice conditions;
(2) Debris;
(3) Temperature ranges; and
(4) Weather-related visibility.
7.7.3 The owner or operator of a facility that handles, stores, or
transports non-petroleum oils other than animal fats and vegetable oils
must identify the response resources that are available by contract or
other approved means, as described in Sec. 112.2. The equipment
described in the response plan shall, as appropriate, include:
(1) Containment boom, sorbent boom, or other methods for containing
oil floating on the surface or to protect shorelines from impact;
(2) Oil recovery devices appropriate for the type of non-petroleum
oil carried; and
(3) Other appropriate equipment necessary to respond to a discharge
involving the type of oil carried.
7.7.4 Response resources identified in a response plan according to
section 7.7.3 of this appendix must be capable of commencing an
effective on-scene response within the applicable tier response times in
section 5.3 of this appendix.
7.7.5 A response plan must identify response resources with fire
fighting capability. The owner or operator of a facility that handles,
stores, or transports non-petroleum oils other than animal fats and
vegetable oils that does not have adequate fire fighting resources
located at the facility or that cannot rely on sufficient local fire
fighting resources must identify adequate fire fighting resources. The
owner or operator shall ensure, by contract or other approved means as
described in Sec. 112.2, the availability of these resources. The
response plan must also identify an individual located at the facility
to work with the fire department for fires of these oils. This
individual shall also verify that sufficient well-trained fire fighting
resources are available within a reasonable response time to a worst
case scenario. The individual may be the qualified individual identified
in the response plan or another appropriate individual located at the
facility.
8.0 Determining Response Resources Required for Small Discharges--Animal
Fats and Vegetable Oils
8.1 A facility owner or operator shall identify sufficient response
resources available, by contract or other approved means as described in
Sec. 112.2, to respond to a small discharge of animal fats or vegetable
oils. A small discharge is defined as any discharge volume less than or
equal to 2,100 gallons, but not to exceed the calculated worst case
discharge. The equipment must be designed to function in the operating
environment at the point of expected use.
8.2 Complexes that are regulated by EPA and the USCG must also
consider planning quantities for the marine transportation-related
portion of the facility.
8.2.1 The USCG planning level that corresponds to EPA's ``small
discharge'' is termed ``the average most probable discharge.'' A USCG
rule found at 33 CFR 154.1020 defines ``the average most probable
discharge'' as the lesser of 50 barrels (2,100 gallons) or 1 percent of
the volume of the worst case discharge. Owners or operators of
[[Page 81]]
complexes that handle, store, or transport animal fats and vegetable
oils must compare oil discharge volumes for a small discharge and an
average most probable discharge, and plan for whichever quantity is
greater.
8.3 The response resources shall, as appropriate, include:
8.3.1 One thousand feet of containment boom (or, for complexes with
marine transfer components, 1,000 feet of containment boom or two times
the length of the largest vessel that regularly conducts oil transfers
to or from the facility, whichever is greater), and a means of deploying
it within 1 hour of the discovery of a discharge;
8.3.2 Oil recovery devices with an effective daily recovery capacity
equal to the amount of oil discharged in a small discharge or greater
which is available at the facility within 2 hours of the detection of a
discharge; and
8.3.3 Oil storage capacity for recovered oily material indicated in
section 12.2 of this appendix.
9.0 Determining Response Resources Required for Medium Discharges--
Animal Fats and Vegetable Oils
9.1 A facility owner or operator shall identify sufficient response
resources available, by contract or other approved means as described in
Sec. 112.2, to respond to a medium discharge of animal fats or
vegetable oils for that facility. This will require response resources
capable of containing and collecting up to 36,000 gallons of oil or 10
percent of the worst case discharge, whichever is less. All equipment
identified must be designed to operate in the applicable operating
environment specified in Table 1 of this appendix.
9.2 Complexes that are regulated by EPA and the USCG must also
consider planning quantities for the transportation-related transfer
portion of the facility. Owners or operators of complexes that handle,
store, or transport animal fats or vegetable oils must plan for oil
discharge volumes for a medium discharge. For non-petroleum oils, there
is no USCG planning level that directly corresponds to EPA's ``medium
discharge.'' Although the USCG does not have planning requirements for
medium discharges, they do have requirements (at 33 CFR 154.545) to
identify equipment to contain oil resulting from an operational
discharge.
9.3 Oil recovery devices identified to meet the applicable medium
discharge volume planning criteria must be located such that they are
capable of arriving on-scene within 6 hours in higher volume port areas
and the Great Lakes and within 12 hours in all other areas. Higher
volume port areas and Great Lakes areas are defined in section 1.1 of
appendix C to this part.
9.4 Because rapid control, containment, and removal of oil are
critical to reduce discharge impact, the owner or operator must
determine response resources using an effective daily recovery capacity
for oil recovery devices equal to 50 percent of the planning volume
applicable for the facility as determined in section 9.1 of this
appendix. The effective daily recovery capacity for oil recovery devices
identified in the plan must be determined using the criteria in section
6 of this appendix.
9.5 In addition to oil recovery capacity, the plan shall, as
appropriate, identify sufficient quantity of containment boom available,
by contract or other approved means as described in Sec. 112.2, to
arrive within the required response times for oil collection and
containment and for protection of fish and wildlife and sensitive
environments. For further description of fish and wildlife and sensitive
environments, see Appendices I, II, and III to DOC/NOAA's ``Guidance for
Facility and Vessel Response Plans: Fish and Wildlife and Sensitive
Environments'' (59 FR 14713-22, March 29, 1994) and the applicable ACP.
Although 40 CFR part 112 does not set required quantities of boom for
oil collection and containment, the response plan shall identify and
ensure, by contract or other approved means as described in Sec. 112.2,
the availability of the quantity of boom identified in the plan for this
purpose.
9.6 The plan must indicate the availability of temporary storage
capacity to meet section 12.2 of this appendix. If available storage
capacity is insufficient to meet this level, then the effective daily
recovery capacity must be derated (downgraded) to the limits of the
available storage capacity.
9.7 The following is an example of a medium discharge volume
planning calculation for equipment identification in a higher volume
port area:
The facility's largest aboveground storage tank volume is 840,000
gallons. Ten percent of this capacity is 84,000 gallons. Because 10
percent of the facility's largest tank, or 84,000 gallons, is greater
than 36,000 gallons, 36,000 gallons is used as the planning volume. The
effective daily recovery capacity is 50 percent of the planning volume,
or 18,000 gallons per day. The ability of oil recovery devices to meet
this capacity must be calculated using the procedures in section 6 of
this appendix. Temporary storage capacity available on-scene must equal
twice the daily recovery capacity as indicated in section 12.2 of this
appendix, or 36,000 gallons per day. This is the information the
facility owner or operator must use to identify and ensure the
availability of the required response resources, by contract or other
approved means as described in Sec. 112.2. The facility owner shall
also identify how much boom is available for use.
[[Page 82]]
10.0 Calculating Planning Volumes for a Worst Case Discharge--Animal
Fats and Vegetable Oils.
10.1 A facility owner or operator shall plan for a response to the
facility's worst case discharge. The planning for on-water oil recovery
must take into account a loss of some oil to the environment due to
physical, chemical, and biological processes, potential increases in
volume due to emulsification, and the potential for deposition of oil on
the shoreline or on sediments. The response planning procedures for
animal fats and vegetable oils are discussed in section 10.7 of this
appendix. You may use alternate response planning procedures for animal
fats and vegetable oils if those procedures result in environmental
protection equivalent to that provided by the procedures in section 10.7
of this appendix.
10.2 The following procedures must be used by a facility owner or
operator in determining the required on-water oil recovery capacity:
10.2.1 The following must be determined: the worst case discharge
volume of oil in the facility; the appropriate group(s) for the types of
oil handled, stored, or transported at the facility (Groups A, B, C);
and the facility's specific operating area. See sections 1.2.1 and 1.2.9
of this appendix for the definitions of animal fats and vegetable oils
and groups thereof. Facilities that handle, store, or transport oil from
different oil groups must calculate each group separately, unless the
oil group constitutes 10 percent or less by volume of the facility's
total oil storage capacity. This information is to be used with Table 6
of this appendix to determine the percentages of the total volume to be
used for removal capacity planning. Table 6 of this appendix divides the
volume into three categories: oil lost to the environment; oil deposited
on the shoreline; and oil available for on-water recovery.
10.2.2 The on-water oil recovery volume shall, as appropriate, be
adjusted using the appropriate emulsification factor found in Table 7 of
this appendix. Facilities that handle, store, or transport oil from
different groups must compare the on-water recovery volume for each oil
group (unless the oil group constitutes 10 percent or less by volume of
the facility's total storage capacity) and use the calculation that
results in the largest on-water oil recovery volume to plan for the
amount of response resources for a worst case discharge.
10.2.3 The adjusted volume is multiplied by the on-water oil
recovery resource mobilization factor found in Table 4 of this appendix
from the appropriate operating area and response tier to determine the
total on-water oil recovery capacity in barrels per day that must be
identified or contracted to arrive on-scene within the applicable time
for each response tier. Three tiers are specified. For higher volume
port areas, the contracted tiers of resources must be located such that
they are capable of arriving on-scene within 6 hours for Tier 1, 30
hours for Tier 2, and 54 hours for Tier 3 of the discovery of a
discharge. For all other rivers and canals, inland, nearshore areas, and
the Great Lakes, these tiers are 12, 36, and 60 hours.
10.2.4 The resulting on-water oil recovery capacity in barrels per
day for each tier is used to identify response resources necessary to
sustain operations in the applicable operating area. The equipment shall
be capable of sustaining operations for the time period specified in
Table 6 of this appendix. The facility owner or operator shall identify
and ensure, by contract or other approved means as described in Sec.
112.2, the availability of sufficient oil spill recovery devices to
provide the effective daily oil recovery capacity required. If the
required capacity exceeds the applicable cap specified in Table 5 of
this appendix, then a facility owner or operator shall ensure, by
contract or other approved means as described in Sec. 112.2, only for
the quantity of resources required to meet the cap, but shall identify
sources of additional resources as indicated in section 5.4 of this
appendix. The owner or operator of a facility whose planning volume
exceeded the cap in 1998 must make arrangements to identify and ensure,
by contract or other approved means as described in Sec. 112.2, the
availability of additional capacity to be under contract by 2003, as
appropriate. For a facility that handles multiple groups of oil, the
required effective daily recovery capacity for each oil group is
calculated before applying the cap. The oil group calculation resulting
in the largest on-water recovery volume must be used to plan for the
amount of response resources for a worst case discharge, unless the oil
group comprises 10 percent or less by volume of the facility's oil
storage capacity.
10.3 The procedures discussed in sections 10.3.1 through 10.3.3 of
this appendix must be used to calculate the planning volume for
identifying shoreline cleanup capacity (for Groups A and B oils).
10.3.1 The following must be determined: the worst case discharge
volume of oil for the facility; the appropriate group(s) for the types
of oil handled, stored, or transported at the facility (Groups A or B);
and the geographic area(s) in which the facility operates (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.
[[Page 83]]
10.3.3 The resulting volume shall be used to identify an oil spill
removal organization with the appropriate shoreline cleanup capability.
10.4 A response plan must identify response resources with fire
fighting capability appropriate for the risk of fire and explosion at
the facility from the discharge or threat of discharge of oil. The owner
or operator of a facility that handles, stores, or transports Group A or
B oils that does not have adequate fire fighting resources located at
the facility or that cannot rely on sufficient local fire fighting
resources must identify adequate fire fighting resources. The facility
owner or operator shall ensure, by contract or other approved means as
described in Sec. 112.2, the availability of these resources. The
response plan must also identify an individual to work with the fire
department for Group A or B oil fires. This individual shall also verify
that sufficient well-trained fire fighting resources are available
within a reasonable response time to a worst case scenario. The
individual may be the qualified individual identified in the response
plan or another appropriate individual located at the facility.
10.5 The following is an example of the procedure described in
sections 10.2 and 10.3 of this appendix. A facility with a 37.04 million
gallon (881,904 barrel) capacity of several types of vegetable oils is
located in the Inland Operating Area. The vegetable oil with the highest
specific gravity stored at the facility is soybean oil (specific gravity
0.922, Group B vegetable oil). The facility has ten aboveground oil
storage tanks with a combined total capacity of 18 million gallons
(428,571 barrels) and without secondary containment. The remaining
facility tanks are inside secondary containment structures. The largest
aboveground oil storage tank (3 million gallons or 71,428 barrels) has
its own secondary containment. Two 2.1 million gallon (50,000 barrel)
tanks (that are not connected by a manifold) are within a common
secondary containment tank area, which is capable of holding 4.2 million
gallons (100,000 barrels) plus sufficient freeboard.
10.5.1 The worst case discharge for the facility is calculated by
adding the capacity of all aboveground vegetable oil storage tanks
without secondary containment (18.0 million gallons) plus the capacity
of the largest aboveground storage tank inside secondary containment
(3.0 million gallons). The resulting worst case discharge is 21 million
gallons or 500,000 barrels.
10.5.2 With a specific worst case discharge identified, the planning
volume for on-water recovery can be identified as follows:
Worst case discharge: 21 million gallons (500,000 barrels) of Group B
vegetable oil
Operating Area: Inland
Planned percent recovered floating vegetable oil (from Table 6, column
Nearshore/Inland/Great Lakes): Inland, Group B is 20%
Emulsion factor (from Table 7): 2.0
Planning volumes for on-water recovery: 21,000,000 gallons x 0.2 x 2.0 =
8,400,000 gallons or 200,000 barrels.
Determine required resources for on-water recovery for each of the three
tiers using mobilization factors (from Table 4, column Inland/Nearshore/
Great Lakes)
------------------------------------------------------------------------
Inland Operating Area Tier 1 Tier 2 Tier 3
------------------------------------------------------------------------
Mobilization factor by which you multiply .15 .25 .40
planning volume..........................
Estimated Daily Recovery Capacity (bbls).. 30,000 50,000 80,000
------------------------------------------------------------------------
10.5.3 Because the requirements for On-Water Recovery Resources for
Tiers 1, 2, and 3 for Inland Operating Area exceed the caps identified
in Table 5 of this appendix, the facility owner will contract for a
response of 12,500 barrels per day (bpd) for Tier 1, 25,000 bpd for Tier
2, and 50,000 bpd for Tier 3. Resources for the remaining 17,500 bpd for
Tier 1, 25,000 bpd for Tier 2, and 30,000 bpd for Tier 3 shall be
identified but need not be contracted for in advance.
10.5.4 With the specific worst case discharge identified, the
planning volume of onshore recovery can be identified as follows:
Worst case discharge: 21 million gallons (500,000 barrels) of Group B
vegetable oil
Operating Area: Inland
Planned percent recovered floating vegetable oil from onshore (from
Table 6, column Nearshore/Inland/Great Lakes): Inland, Group B is 65%
Emulsion factor (from Table 7): 2.0
Planning volumes for shoreline recovery:
21,000,000 gallons x 0.65 x 2.0 = 27,300,000 gallons or 650,000 barrels
10.5.5 The facility owner or operator shall, as appropriate, also
identify or contract for quantities of boom identified in the response
plan for the protection of fish and wildlife and sensitive environments
within the area potentially impacted by a worst case discharge from the
facility. For further description of fish and wildlife and sensitive
environments, see Appendices I, II, and III to DOC/NOAA's ``Guidance for
Facility and Vessel Response Plans: Fish and Wildlife and Sensitive
Environments,'' (see Appendix E to this part, section 13, for
availability) and the applicable ACP. Attachment C-III to Appendix C
provides a method for calculating a planning distance to fish and
wildlife and sensitive environments and public drinking
[[Page 84]]
water intakes that may be adversely affected in the event of a worst
case discharge.
10.6 The procedures discussed in sections 10.6.1 through 10.6.3 of
this appendix must be used to determine appropriate response resources
for facilities with Group C oils.
10.6.1 The owner or operator of a facility that handles, stores, or
transports Group C oils shall, as appropriate, identify the response
resources available by contract or other approved means, as described in
Sec. 112.2. The equipment identified in a response plan shall, as
appropriate, include:
(1) Sonar, sampling equipment, or other methods for locating the oil
on the bottom or suspended in the water column;
(2) Containment boom, sorbent boom, silt curtains, or other methods
for containing the oil that may remain floating on the surface or to
reduce spreading on the bottom;
(3) Dredges, pumps, or other equipment necessary to recover oil from
the bottom and shoreline;
(4) Equipment necessary to assess the impact of such discharges; and
(5) Other appropriate equipment necessary to respond to a discharge
involving the type of oil handled, stored, or transported.
10.6.2 Response resources identified in a response plan for a
facility that handles, stores, or transports Group C oils under section
10.6.1 of this appendix shall be capable of being deployed on scene
within 24 hours of discovery of a discharge.
10.6.3 A response plan must identify response resources with fire
fighting capability. The owner or operator of a facility that handles,
stores, or transports Group C oils that does not have adequate fire
fighting resources located at the facility or that cannot rely on
sufficient local fire fighting resources must identify adequate fire
fighting resources. The owner or operator shall ensure, by contract or
other approved means as described in Sec. 112.2, the availability of
these resources. The response plan shall also identify an individual
located at the facility to work with the fire department for Group C oil
fires. This individual shall also verify that sufficient well-trained
fire fighting resources are available within a reasonable response time
to respond to a worst case discharge. The individual may be the
qualified individual identified in the response plan or another
appropriate individual located at the facility.
10.7 The procedures described in sections 10.7.1 through 10.7.5 of
this appendix must be used to determine appropriate response plan
development and evaluation criteria for facilities that handle, store,
or transport animal fats and vegetable oils. Refer to section 11 of this
appendix for information on the limitations on the use of chemical
agents for inland and nearshore areas.
10.7.1 An owner or operator of a facility that handles, stores, or
transports animal fats and vegetable oils must provide information in
the response plan that identifies:
(1) Procedures and strategies for responding to a worst case
discharge of animal fats and vegetable oils to the maximum extent
practicable; and
(2) Sources of the equipment and supplies necessary to locate,
recover, and mitigate such a discharge.
10.7.2 An owner or operator of a facility that handles, stores, or
transports animal fats and vegetable oils must ensure that any equipment
identified in a response plan is capable of operating in the geographic
area(s) (i.e., operating environments) in which the facility operates
using the criteria in Table 1 of this appendix. When evaluating the
operability of equipment, the facility owner or operator must consider
limitations that are identified in the appropriate ACPs, including:
(1) Ice conditions;
(2) Debris;
(3) Temperature ranges; and
(4) Weather-related visibility.
10.7.3. The owner or operator of a facility that handles, stores, or
transports animal fats and vegetable oils must identify the response
resources that are available by contract or other approved means, as
described in Sec. 112.2. The equipment described in the response plan
shall, as appropriate, include:
(1) Containment boom, sorbent boom, or other methods for containing
oil floating on the surface or to protect shorelines from impact;
(2) Oil recovery devices appropriate for the type of animal fat or
vegetable oil carried; and
(3) Other appropriate equipment necessary to respond to a discharge
involving the type of oil carried.
10.7.4 Response resources identified in a response plan according to
section 10.7.3 of this appendix must be capable of commencing an
effective on-scene response within the applicable tier response times in
section 5.3 of this appendix.
10.7.5 A response plan must identify response resources with fire
fighting capability. The owner or operator of a facility that handles,
stores, or transports animal fats and vegetable oils that does not have
adequate fire fighting resources located at the facility or that cannot
rely on sufficient local fire fighting resources must identify adequate
fire fighting resources. The owner or operator shall ensure, by contract
or other approved means as described in Sec. 112.2, the availability of
these resources. The response plan shall also identify an individual
located at the facility to work with the fire department for animal fat
and vegetable oil fires. This individual shall also verify that
sufficient well-trained fire fighting resources are available within a
reasonable response time to respond to a worst case discharge.
[[Page 85]]
The individual may be the qualified individual identified in the
response plan or another appropriate individual located at the facility.
11.0 Determining the Availability of Alternative Response Methods
11.1 For chemical agents to be identified in a response plan, they
must be on the NCP Product Schedule that is maintained by EPA. (Some
States have a list of approved dispersants for use within State waters.
Not all of these State-approved dispersants are listed on the NCP
Product Schedule.)
11.2 Identification of chemical agents in the plan does not imply
that their use will be authorized. Actual authorization will be governed
by the provisions of the NCP and the applicable ACP.
12.0 Additional Equipment Necessary to Sustain Response Operations
12.1 A facility owner or operator shall identify sufficient response
resources available, by contract or other approved means as described in
Sec. 112.2, to respond to a medium discharge of animal fats or
vegetables oils for that facility. This will require response resources
capable of containing and collecting up to 36,000 gallons of oil or 10
percent of the worst case discharge, whichever is less. All equipment
identified must be designed to operate in the applicable operating
environment specified in Table 1 of this appendix.
12.2 A facility owner or operator shall evaluate the availability of
adequate temporary storage capacity to sustain the effective daily
recovery capacities from equipment identified in the plan. Because of
the inefficiencies of oil spill recovery devices, response plans must
identify daily storage capacity equivalent to twice the effective daily
recovery capacity required on-scene. This temporary storage capacity may
be reduced if a facility owner or operator can demonstrate by waste
stream analysis that the efficiencies of the oil recovery devices,
ability to decant waste, or the availability of alternative temporary
storage or disposal locations will reduce the overall volume of oily
material storage.
12.3 A facility owner or operator shall ensure that response
planning includes the capability to arrange for disposal of recovered
oil products. Specific disposal procedures will be addressed in the
applicable ACP.
13.0 References and Availability
13.1 All materials listed in this section are part of EPA's
rulemaking docket and are located in the Superfund Docket, 1235
Jefferson Davis Highway, Crystal Gateway 1, Arlington, Virginia 22202,
Suite 105 (Docket Numbers SPCC-2P, SPCC-3P, and SPCC-9P). The docket is
available for inspection between 9 a.m. and 4 p.m., Monday through
Friday, excluding Federal holidays.
Appointments to review the docket can be made by calling 703-603-
9232. Docket hours are subject to change. As provided in 40 CFR part 2,
a reasonable fee may be charged for copying services.
13.2 The docket will mail copies of materials to requestors who are
outside the Washington, DC metropolitan area. Materials may be available
from other sources, as noted in this section. As provided in 40 CFR part
2, a reasonable fee may be charged for copying services. The RCRA/
Superfund Hotline at 800-424-9346 may also provide additional
information on where to obtain documents. To contact the RCRA/Superfund
Hotline in the Washington, DC metropolitan area, dial 703-412-9810. The
Telecommunications Device for the Deaf (TDD) Hotline number is 800-553-
7672, or, in the Washington, DC metropolitan area, 703-412-3323.
13.3 Documents
(1) National Preparedness for Response Exercise Program (PREP). The
PREP draft guidelines are available from United States Coast Guard
Headquarters (G-MEP-4), 2100 Second Street, SW., Washington, DC 20593.
(See 58 FR 53990-91, October 19, 1993, Notice of Availability of PREP
Guidelines).
(2) ``Guidance for Facility and Vessel Response Plans: Fish and
Wildlife and Sensitive Environments (published in the Federal Register
by DOC/NOAA at 59 FR 14713-22, March 29, 1994.). The guidance is
available in the Superfund Docket (see sections 13.1 and 13.2 of this
appendix).
(3) ASTM Standards. ASTM F 715, ASTM F 989, ASTM F 631-99, ASTM F
808-83 (1999). The ASTM standards are available from the American
Society for Testing and Materials, 100 Barr Harbor Drive, West
Conshohocken, PA 19428-2959.
(4) Response Plans for Marine Transportation-Related Facilities,
Interim Final Rule. Published by USCG, DOT at 58 FR 7330-76, February 5,
1993.
Table 1 to Appendix E--Response Resource Operating Criteria
------------------------------------------------------------------------
Oil Recovery Devices
-------------------------------------------------------------------------
Significant wave height
Operating environment \1\ Sea state
------------------------------------------------------------------------
Rivers and Canals................ <=1 foot................ 1
Inland........................... <=3 feet................ 2
[[Page 86]]
Great Lakes...................... <=4 feet................ 2-3
Ocean............................ <=6 feet................ 3-4
------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Boom
-----------------------------------------------------------------------------------------------------------------
Use
Boom property -----------------------------------------------------------------------------
Rivers and canals Inland Great Lakes Ocean
----------------------------------------------------------------------------------------------------------------
Significant Wave Height \1\....... <=1............... <=3............... <=4.............. <=6
Sea State......................... 1................. 2................. 2-3.............. 3-4
Boom height--inches (draft plus 6-18.............. 18-42............. 18-42............ =42
freeboard).
Reserve Buoyancy to Weight Ratio.. 2:1............... 2:1............... 2:1.............. 3:1 to 4:1
Total Tensile Strength--pounds.... 4,500............. 15,000-20,000..... 15,000-20,000.... =20,00
0
Skirt Fabric Tensile Strength-- 200............... 300............... 300.............. 500
pounds.
Skirt Fabric Tear Strength--pounds 100............... 100............... 100.............. 125
----------------------------------------------------------------------------------------------------------------
\1\ Oil recovery devices and boom shall be at least capable of operating in wave heights up to and including the
values listed in Table 1 for each operating environment.
Table 2 to Appendix E--Removal Capacity Planning Table for Petroleum Oils
----------------------------------------------------------------------------------------------------------------
Spill location Rivers and canals Nearshore/Inland/Great Lakes
----------------------------------------------------------------------------------------------------------------
Sustainability of on-water oil 3 days 4 days
recovery -----------------------------------------------------------------------------
----------------------------------- Percent Percent
Percent recovered Percent oil Percent recovered Percent oil
Oil group \1\ natural floating onshore natural floating onshore
dissipation oil dissipation oil
----------------------------------------------------------------------------------------------------------------
1--Non-persistent oils............ 80 10 10 80 20 10
2--Light crudes................... 40 15 45 50 50 30
3--Medium crudes and fuels........ 20 15 65 30 50 50
4--Heavy crudes and fuels......... 5 20 75 10 50 70
----------------------------------------------------------------------------------------------------------------
\1\ The response resource considerations for non-petroleum oils other than animal fats and vegetable oils are
outlined in section 7.7 of this appendix.
Note: Group 5 oils are defined in section 1.2.8 of this appendix; the response resource considerations are
outlined in section 7.6 of this appendix.
Table 3 to Appendix E--Emulsification Factors for Petroleum Oil Groups
\1\
------------------------------------------------------------------------
------------------------------------------------------------------------
Non-Persistent Oil:
Group 1...................................................... 1.0
Persistent Oil:
Group 2...................................................... 1.8
Group 3...................................................... 2.0
Group 4...................................................... 1.4
Group 5 oils are defined in section 1.2.7 of this appendix; the
response resource considerations are outlined in section 7.6
of this appendix.
------------------------------------------------------------------------
\1\ See sections 1.2.2 and 1.2.7 of this appendix for group designations
for non-persistent and persistent oils, respectively.
Table 4 to Appendix E--On-Water Oil Recovery Resource Mobilization Factors
----------------------------------------------------------------------------------------------------------------
Operating area Tier 1 Tier 2 Tier 3
----------------------------------------------------------------------------------------------------------------
Rivers and Canals............................................... 0.30 0.40 0.60
Inland/Nearshore Great Lakes.................................... 0.15 0.25 0.40
----------------------------------------------------------------------------------------------------------------
Note: These mobilization factors are for total resources mobilized, not incremental response resources.
Table 5 to Appendix E--Response Capability Caps by Operating Area
----------------------------------------------------------------------------------------------------------------
Tier 1 Tier 2 Tier 3
----------------------------------------------------------------------------------------------------------------
February 18, 1993:
All except Rivers & Canals, Great Lakes..................... 10K bbls/day 20K bbls/day 40K bbls/day.
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.
[[Page 87]]
February 18, 1998:
All except Rivers & Canals, Great Lakes..................... 12.5K bbls/day 25K bbls/day 50K bbls/day.
Great Lakes................................................. 6.35K bbls/day 12.3K bbls/day 25K bbls/day.
Rivers & Canals............................................. 1.875K bbls/ 3.75K bbls/day 7.5K bbls/day.
day
February 18, 2003:
All except Rivers & Canals, Great Lakes..................... TBD TBD TBD.
Great Lakes................................................. TBD TBD TBD.
Rivers & Canals............................................. TBD TBD TBD.
----------------------------------------------------------------------------------------------------------------
Note: The caps show cumulative overall effective daily recovery capacity, not incremental increases.
TBD = To Be Determined.
Table 6 to Appendix E--Removal Capacity Planning Table for Animal Fats and Vegetable Oils
----------------------------------------------------------------------------------------------------------------
Spill location Rivers and canals Nearshore/Inland/Great Lakes
----------------------------------------------------------------------------------------------------------------
Sustainability of on-water oil 3 days 4 days
recovery -----------------------------------------------------------------------------
----------------------------------- Percent Percent Percent Percent
Percent recovered recovered Percent recovered recovered
Oil group \1\ natural floating oil from natural floating oil from
loss oil onshore loss oil onshore
----------------------------------------------------------------------------------------------------------------
Group A........................... 40 15 45 50 20 30
Group B........................... 20 15 65 30 20 50
----------------------------------------------------------------------------------------------------------------
\1\ Substances with a specific gravity greater than 1.0 generally sink below the surface of the water. Response
resource considerations are outlined in section 10.6 of this appendix. The owner or operator of the facility
is responsible for determining appropriate response resources for Group C oils including locating oil on the
bottom or suspended in the water column; containment boom or other appropriate methods for containing oil that
may remain floating on the surface; and dredges, pumps, or other equipment to recover animal fats or vegetable
oils from the bottom and shoreline.
Note: Group C oils are defined in sections 1.2.1 and 1.2.9 of this appendix; the response resource procedures
are discussed in section 10.6 of this appendix.
Table 7 to Appendix E--Emulsification Factors for Animal Fats and
Vegetable Oils
------------------------------------------------------------------------
------------------------------------------------------------------------
Oil Group\1\:
Group A...................................................... 1.0
Group B...................................................... 2.0
------------------------------------------------------------------------
\1\ Substances with a specific gravity greater than 1.0 generally sink
below the surface of the water. Response resource considerations are
outlined in section 10.6 of this appendix. The owner or operator of
the facility is responsible for determining appropriate response
resources for Group C oils including locating oil on the bottom or
suspended in the water column; containment boom or other appropriate
methods for containing oil that may remain floating on the surface;
and dredges, pumps, or other equipment to recover animal fats or
vegetable oils from the bottom and shoreline.
Note: Group C oils are defined in sections 1.2.1 and 1.2.9 of this
appendix; the response resource procedures are discussed in section
10.6 of this appendix.
[[Page 88]]
Attachments to Appendix E
[GRAPHIC] [TIFF OMITTED] TR30JN00.062
[[Page 89]]
[GRAPHIC] [TIFF OMITTED] TR30JN00.063
[[Page 90]]
[GRAPHIC] [TIFF OMITTED] TR30JN00.064
[[Page 91]]
[GRAPHIC] [TIFF OMITTED] TR30JN00.065
[[Page 92]]
[GRAPHIC] [TIFF OMITTED] TR30JN00.066
[[Page 93]]
[GRAPHIC] [TIFF OMITTED] TR30JN00.067
[[Page 94]]
[GRAPHIC] [TIFF OMITTED] TR30JN00.068
[GRAPHIC] [TIFF OMITTED] TR30JN00.069
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[GRAPHIC] [TIFF OMITTED] TR30JN00.070
[59 FR 34111, July 1, 1994; 59 FR 49006, Sept. 26, 1994, as amended at
65 FR 40806, 40807, June 30, 2000; 65 FR 47325, Aug. 2, 2000; 66 FR
34560, June 29, 2001]
Sec. Appendix F to Part 112--Facility-Specific Response Plan
Table of Contents
1.0 Model Facility-Specific Response Plan
1.1 Emergency Response Action Plan
1.2 Facility Information
1.3 Emergency Response Information
1.3.1 Notification
1.3.2 Response Equipment List
1.3.3 Response Equipment Testing/Deployment
1.3.4 Personnel
1.3.5 Evacuation Plans
1.3.6 Qualified Individual's Duties
1.4 Hazard Evaluation
1.4.1 Hazard Identification
1.4.2 Vulnerability Analysis
1.4.3 Analysis of the Potential for an Oil Spill
1.4.4 Facility Reportable Oil Spill History
1.5 Discharge Scenarios
1.5.1 Small and Medium Discharges
1.5.2 Worst Case Discharge
1.6 Discharge Detection Systems
1.6.1 Discharge Detection By Personnel
1.6.2 Automated Discharge Detection
[[Page 96]]
1.7 Plan Implementation
1.7.1 Response Resources for Small, Medium, and Worst Case Spills
1.7.2 Disposal Plans
1.7.3 Containment and Drainage Planning
1.8 Self-Inspection, Drills/Exercises, and Response Training
1.8.1 Facility Self-Inspection
1.8.1.1 Tank Inspection
1.8.1.2 Response Equipment Inspection
1.8.1.3 Secondary Containment Inspection
1.8.2 Facility Drills/Exercises
1.8.2.1 Qualified Individual Notification Drill Logs
1.8.2.2 Spill Management Team Tabletop Exercise Logs
1.8.3 Response Training
1.8.3.1 Personnel Response Training Logs
1.8.3.2 Discharge Prevention Meeting Logs
1.9 Diagrams
1.10 Security
2.0 Response Plan Cover Sheet
3.0 Acronyms
4.0 References
1.0 Model Facility-Specific Response Plan
(A) Owners or operators of facilities regulated under this part
which pose a threat of substantial harm to the environment by
discharging oil into or on navigable waters or adjoining shorelines are
required to prepare and submit facility-specific response plans to EPA
in accordance with the provisions in this appendix. This appendix
further describes the required elements in Sec. 112.20(h).
(B) Response plans must be sent to the appropriate EPA Regional
office. Figure F-1 of this Appendix lists each EPA Regional office and
the address where owners or operators must submit their response plans.
Those facilities deemed by the Regional Administrator (RA) to pose a
threat of significant and substantial harm to the environment will have
their plans reviewed and approved by EPA. In certain cases, information
required in the model response plan is similar to information currently
maintained in the facility's Spill Prevention, Control, and
Countermeasures (SPCC) Plan as required by 40 CFR 112.3. In these cases,
owners or operators may reproduce the information and include a
photocopy in the response plan.
(C) A complex may develop a single response plan with a set of core
elements for all regulating agencies and separate sections for the non-
transportation-related and transportation-related components, as
described in Sec. 112.20(h). Owners or operators of large facilities
that handle, store, or transport oil at more than one geographically
distinct location (e.g., oil storage areas at opposite ends of a single,
continuous parcel of property) shall, as appropriate, develop separate
sections of the response plan for each storage area.
[[Page 97]]
[GRAPHIC] [TIFF OMITTED] TC01MR92.015
1.1 Emergency Response Action Plan
Several sections of the response plan shall be co-located for easy
access by response personnel during an actual emergency or oil
discharge. This collection of sections shall be called the Emergency
Response Action Plan. The Agency intends that the Action Plan contain
only as much information as is necessary to combat the discharge and be
arranged so response actions are not delayed. The Action Plan may be
arranged in a number of ways. For example, the sections of the Emergency
Response Action Plan may be photocopies or condensed versions of the
[[Page 98]]
forms included in the associated sections of the response plan. Each
Emergency Response Action Plan section may be tabbed for quick
reference. The Action Plan shall be maintained in the front of the same
binder that contains the complete response plan or it shall be contained
in a separate binder. In the latter case, both binders shall be kept
together so that the entire plan can be accessed by the qualified
individual and appropriate spill response personnel. The Emergency
Response Action Plan shall be made up of the following sections:
1. Qualified Individual Information (Section 1.2) partial
2. Emergency Notification Phone List (Section 1.3.1) partial
3. Spill Response Notification Form (Section 1.3.1) partial
4. Response Equipment List and Location (Section 1.3.2) complete
5. Response Equipment Testing and Deployment (Section 1.3.3) complete
6. Facility Response Team (Section 1.3.4) partial
7. Evacuation Plan (Section 1.3.5) condensed
8. Immediate Actions (Section 1.7.1) complete
9. Facility Diagram (Section 1.9) complete
1.2 Facility Information
The facility information form is designed to provide an overview of
the site and a description of past activities at the facility. Much of
the information required by this section may be obtained from the
facility's existing SPCC Plan.
1.2.1 Facility name and location: Enter facility name and street
address. Enter the address of corporate headquarters only if corporate
headquarters are physically located at the facility. Include city,
county, state, zip code, and phone number.
1.2.2 Latitude and Longitude: Enter the latitude and longitude of
the facility. Include degrees, minutes, and seconds of the main entrance
of the facility.
1.2.3 Wellhead Protection Area: Indicate if the facility is located
in or drains into a wellhead protection area as defined by the Safe
Drinking Water Act of 1986 (SDWA). \1\ The response plan requirements in
the Wellhead Protection Program are outlined by the State or Territory
in which the facility resides.
---------------------------------------------------------------------------
\1\ A wellhead protection area is defined as the surface and
subsurface area surrounding a water well or wellfield, supplying a
public water system, through which contaminants are reasonably likely to
move toward and reach such water well or wellfield. For further
information regarding State and territory protection programs, facility
owners or operators may contact the SDWA Hotline at 1-800-426-4791.
---------------------------------------------------------------------------
1.2.4 Owner/operator: Write the name of the company or person
operating the facility and the name of the person or company that owns
the facility, if the two are different. List the address of the owner,
if the two are different.
1.2.5 Qualified Individual: Write the name of the qualified
individual for the entire facility. If more than one person is listed,
each individual indicated in this section shall have full authority to
implement the facility response plan. For each individual, list: name,
position, home and work addresses (street addresses, not P.O. boxes),
emergency phone number, and specific response training experience.
1.2.6 Date of Oil Storage Start-up: Enter the year which the present
facility first started storing oil.
1.2.7 Current Operation: Briefly describe the facility's operations
and include the North American Industrial Classification System (NAICS)
code.
1.2.8 Dates and Type of Substantial Expansion: Include information
on expansions that have occurred at the facility. Examples of such
expansions include, but are not limited to: Throughput expansion,
addition of a product line, change of a product line, and installation
of additional oil storage capacity. The data provided shall include all
facility historical information and detail the expansion of the
facility. An example of substantial expansion is any material alteration
of the facility which causes the owner or operator of the facility to
re-evaluate and increase the response equipment necessary to adequately
respond to a worst case discharge from the facility.
Date of Last Update: ___
Facility Information Form
Facility Name:__________________________________________________________
Location (Street Address):_____________________________________________
City: ___ State: ___ Zip: ___
County: ___ Phone Number: ( ) ___
Latitude: ___ Degrees ___ Minutes ___ Seconds
Longitude: ___ Degrees ___ Minutes ___ Seconds
Wellhead Protection Area:_______________________________________________
Owner:__________________________________________________________________
Owner Location (Street Address):_______________________________________
(if different from Facility Address)
City: ___ State:___ Zip: ___
County: ___ Phone Number: ( ) ___
Operator (if not Owner):________________________________________________
Qualified Individual(s): (attach additional sheets if more than one)
Name:__________________________________________________________________
Position:______________________________________________________________
Work Address:__________________________________________________________
Home Address:__________________________________________________________
Emergency Phone Number: ( )____________________________________________
[[Page 99]]
Date of Oil Storage Start-up:___________________________________________
Current Operations:_____________________________________________________
________________________________________________________________________
________________________________________________________________________
Date(s) and Type(s) of Substantial Expansion(s):________________________
________________________________________________________________________
(Attach additional sheets if necessary)
1.3 Emergency Response Information
(A) The information provided in this section shall describe what
will be needed in an actual emergency involving the discharge of oil or
a combination of hazardous substances and oil discharge. The Emergency
Response Information section of the plan must include the following
components:
(1) The information provided in the Emergency Notification Phone
List in section 1.3.1 identifies and prioritizes the names and phone
numbers of the organizations and personnel that need to be notified
immediately in the event of an emergency. This section shall include all
the appropriate phone numbers for the facility. These numbers must be
verified each time the plan is updated. The contact list must be
accessible to all facility employees to ensure that, in case of a
discharge, any employee on site could immediately notify the appropriate
parties.
(2) The Spill Response Notification Form in section 1.3.1 creates a
checklist of information that shall be provided to the National Response
Center (NRC) and other response personnel. All information on this
checklist must be known at the time of notification, or be in the
process of being collected. This notification form is based on a similar
form used by the NRC. Note: Do not delay spill notification to collect
the information on the list.
(3) Section 1.3.2 provides a description of the facility's list of
emergency response equipment and location of the response equipment.
When appropriate, the amount of oil that emergency response equipment
can handle and any limitations (e.g., launching sites) must be
described.
(4) Section 1.3.3 provides information regarding response equipment
tests and deployment drills. Response equipment deployment exercises
shall be conducted to ensure that response equipment is operational and
the personnel who would operate the equipment in a spill response are
capable of deploying and operating it. Only a representative sample of
each type of response equipment needs to be deployed and operated, as
long as the remainder is properly maintained. If appropriate, testing of
response equipment may be conducted while it is being deployed.
Facilities without facility-owned response equipment must ensure that
the oil spill removal organization that is identified in the response
plan to provide this response equipment certifies that the deployment
exercises have been met. Refer to the National Preparedness for Response
Exercise Program (PREP) Guidelines (see appendix E to this part, section
13, for availability), which satisfy Oil Pollution Act (OPA) response
exercise requirements.
(5) Section 1.3.4 lists the facility response personnel, including
those employed by the facility and those under contract to the facility
for response activities, the amount of time needed for personnel to
respond, their responsibility in the case of an emergency, and their
level of response training. Three different forms are included in this
section. The Emergency Response Personnel List shall be composed of all
personnel employed by the facility whose duties involve responding to
emergencies, including oil discharges, even when they are not physically
present at the site. An example of this type of person would be the
Building Engineer-in-Charge or Plant Fire Chief. The second form is a
list of the Emergency Response Contractors (both primary and secondary)
retained by the facility. Any changes in contractor status must be
reflected in updates to the response plan. Evidence of contracts with
response contractors shall be included in this section so that the
availability of resources can be verified. The last form is the Facility
Response Team List, which shall be composed of both emergency response
personnel (referenced by job title/position) and emergency response
contractors, included in one of the two lists described above, that will
respond immediately upon discovery of an oil discharge or other
emergency (i.e., the first people to respond). These are to be persons
normally on the facility premises or primary response contractors.
Examples of these personnel would be the Facility Hazardous Materials
(HAZMAT) Spill Team 1, Facility Fire Engine Company 1, Production
Supervisor, or Transfer Supervisor. Company personnel must be able to
respond immediately and adequately if contractor support is not
available.
(6) Section 1.3.5 lists factors that must, as appropriate, be
considered when preparing an evacuation plan.
(7) Section 1.3.6 references the responsibilities of the qualified
individual for the facility in the event of an emergency.
(B) The information provided in the emergency response section will
aid in the assessment of the facility's ability to respond to a worst
case discharge and will identify additional assistance that may be
needed. In addition, the facility owner or operator may want to produce
a wallet-size card containing a checklist of the immediate response and
notification steps to be taken in the event of an oil discharge.
1.3.1 Notification
Date of Last Update:____________________________________________________
[[Page 100]]
Emergency Notification Phone List Whom To Notify
Reporter's Name:________________________________________________________
Date:___________________________________________________________________
Facility Name:__________________________________________________________
Owner Name:_____________________________________________________________
Facility Identification Number:_________________________________________
Date and Time of Each NRC Notification:_________________________________
------------------------------------------------------------------------
Organization Phone No.
------------------------------------------------------------------------
1. National Response Center (NRC): 1-800-424-8802
------------------
2. Qualified Individual:
------------------
Evening Phone:
------------------
3. Company Response Team:
------------------
Evening Phone:
------------------
4. Federal On-Scene Coordinator (OSC) and/or Regional
Response Center (RRC):
------------------
Evening Phone(s):
------------------
Pager Number(s):
------------------
5. Local Response Team (Fire Dept./Cooperatives):
------------------
6. Fire Marshall:
------------------
Evening Phone:
------------------
7. State Emergency Response Commission (SERC):
------------------
Evening Phone:
------------------
8. State Police:
------------------
9. Local Emergency Planning Committee (LEPC):
------------------
10. Local Water Supply System:
------------------
Evening Phone:
------------------
11. Weather Report:
------------------
12. Local Television/Radio Station for Evacuation
Notification:
------------------
13. Hospitals:
------------------
------------------------------------------------------------------------
Spill Response Notification Form
Reporter's Last Name:___________________________________________________
First:__________________________________________________________________
M.I.:___________________________________________________________________
Position:_______________________________________________________________
Phone Numbers:
Day ( ) -
Evening ( ) -
Company:________________________________________________________________
Organization Type:______________________________________________________
Address:________________________________________________________________
________________________________________________________________________
City:___________________________________________________________________
State:__________________________________________________________________
Zip:____________________________________________________________________
Were Materials Discharged? ___ (Y/N) Confidential? ___ (Y/N)
Meeting Federal Obligations to Report? ___ (Y/N) Date Called: ___
Calling for Responsible Party? ___ (Y/N) Time Called: ___
Incident Description
Source and/or Cause of Incident:________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
Date of Incident:_______________________________________________________
Time of Incident: ___ AM/PM
Incident Address/Location:______________________________________________
________________________________________________________________________
Nearest City:________ State: ___ County: ____ Zip: ____
Distance from City: ___ Units of Measure: ___ Direction from City: ___
Section: ____ Township: ____ Range: ____ Borough: ____
Container Type: ___ Tank Oil Storage Capacity: ____ Units of Measure:
___
Facility Oil Storage Capacity: ____ Units of Measure: ___
Facility Latitude: ___ Degrees ___ Minutes ___ Seconds
Facility Longitude: ___ Degrees ___ Minutes ___ Seconds
Material
--------------------------------------------------------------------------------------------------------------------------------------------------------
Material Discharged
CHRIS Code Discharged quantity Unit of measure in water Quantity Unit of measure
--------------------------------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------------------------------
[[Page 101]]
Response Action
Actions Taken to Correct, Control or Mitigate Incident:
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
Impact
Number of Injuries: ___ Number of Deaths: ___
Were there Evacuations? ___ (Y/N) Number Evacuated: ___
Was there any Damage? ___ (Y/N)
Damage in Dollars (approximate):________________________________________
Medium Affected:________________________________________________________
Description:____________________________________________________________
More Information about Medium:__________________________________________
________________________________________________________________________
________________________________________________________________________
Additional Information
Any information about the incident not recorded elsewhere in the report:
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
Caller Notifications
EPA? ___ (Y/N) USCG? ___ (Y/N) State? ___ (Y/N)
Other? ___ (Y/N) Describe: ______
1.3.2 Response Equipment List
Date of Last Update:___
Facility Response Equipment List
1. Skimmers/Pumps--Operational Status:__________________________________
Type, Model, and Year:_________________________________________________
________________________________________________________________________
Type Model Year
Number:________________________________________________________________
Capacity: ____ gal./min.
Daily Effective Recovery Rate:_________________________________________
Storage Location(s):___________________________________________________
Date Fuel Last Changed:________________________________________________
2. Boom--Operational Status:____________________________________________
Type, Model, and Year:_________________________________________________
Type Model Year
Number:________________________________________________________________
Size (length): ____ ft.
Containment Area: ____ sq. ft.
Storage Location:______________________________________________________
3. Chemicals Stored (Dispersants listed on EPA's NCP Product
Schedule)
----------------------------------------------------------------------------------------------------------------
Date Treatment Storage
Type Amount purchased capacity location
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Were appropriate procedures used to receive approval for use of
dispersants in accordance with the NCP (40 CFR 300.910) and the Area
Contingency Plan (ACP), where applicable?___ (Y/N).
Name and State of On-Scene Coordinator (OSC) authorizing use: ___ .
Date Authorized: ___ .
4. Dispersant Dispensing Equipment--Operational Status: ___ .
------------------------------------------------------------------------
Response
Type and year Capacity Storage time
location (minutes)
------------------------------------------------------------------------
------------------------------------------------------------------------
------------------------------------------------------------------------
------------------------------------------------------------------------
------------------------------------------------------------------------
5. Sorbents--Operational Status:________________________________________
Type and Year Purchased:_______________________________________________
Amount:________________________________________________________________
Absorption Capacity (gal.):____________________________________________
Storage Location(s):___________________________________________________
6. Hand Tools--Operational Status:______________________________________
------------------------------------------------------------------------
Type and year Quantity Storage location
------------------------------------------------------------------------
------------------------------------------------------------------------
------------------------------------------------------------------------
[[Page 102]]
------------------------------------------------------------------------
------------------------------------------------------------------------
7. Communication Equipment (include operating frequency and channel
and/or cellular phone numbers)--Operational Status: ___
------------------------------------------------------------------------
Storage location/
Type and year Quantity number
------------------------------------------------------------------------
------------------------------------------------------------------------
------------------------------------------------------------------------
8. Fire Fighting and Personnel Protective Equipment--Operational
Status: ___
------------------------------------------------------------------------
Type and year Quantity Storage location
------------------------------------------------------------------------
------------------------------------------------------------------------
------------------------------------------------------------------------
------------------------------------------------------------------------
------------------------------------------------------------------------
9. Other (e.g., Heavy Equipment, Boats and Motors)--Operational
Status: ___
------------------------------------------------------------------------
Type and year Quantity Storage location
------------------------------------------------------------------------
------------------------------------------------------------------------
------------------------------------------------------------------------
------------------------------------------------------------------------
------------------------------------------------------------------------
1.3.3 Response Equipment Testing/Deployment
Date of Last Update:____
Response Equipment Testing and Deployment Drill Log
Last Inspection or Response Equipment Test Date:________________________
Inspection Frequency:___________________________________________________
Last Deployment Drill Date:_____________________________________________
Deployment Frequency:___________________________________________________
Oil Spill Removal Organization Certification (if applicable):___________
1.3.4 Personnel
Date of Last Update:____
Emergency Response Personnel
Company Personnel
--------------------------------------------------------------------------------------------------------------------------------------------------------
Responsibility during response
Name Phone \1\ Response time action Response training type/date
--------------------------------------------------------------------------------------------------------------------------------------------------------
1.
--------------------------------------------------------------------------------------------------------------------------------------------------------
2.
--------------------------------------------------------------------------------------------------------------------------------------------------------
3.
--------------------------------------------------------------------------------------------------------------------------------------------------------
4.
--------------------------------------------------------------------------------------------------------------------------------------------------------
5.
--------------------------------------------------------------------------------------------------------------------------------------------------------
6.
--------------------------------------------------------------------------------------------------------------------------------------------------------
7.
--------------------------------------------------------------------------------------------------------------------------------------------------------
8.
--------------------------------------------------------------------------------------------------------------------------------------------------------
9.
--------------------------------------------------------------------------------------------------------------------------------------------------------
10.
--------------------------------------------------------------------------------------------------------------------------------------------------------
11.
--------------------------------------------------------------------------------------------------------------------------------------------------------
12.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Phone number to be used when person is not on-site.
Emergency Response Contractors
Date of Last Update: ____
----------------------------------------------------------------------------------------------------------------
Contractor Phone Response time Contract responsibility \1\
----------------------------------------------------------------------------------------------------------------
1.
----------------------------------------------------------------------------------------------------------------
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[[Page 103]]
2.
----------------------------------------------------------------------------------------------------------------
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3.
----------------------------------------------------------------------------------------------------------------
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--------------------------------------------
4.
----------------------------------------------------------------------------------------------------------------
--------------------------------------------
--------------------------------------------
----------------------------------------------------------------------------------------------------------------
\1\ Include evidence of contracts/agreements with response contractors to ensure the availability of personnel
and response equipment.
Facility Response Team
Date of Last Update:____
----------------------------------------------------------------------------------------------------------------
Phone or pager number (day/
Team member Response time (minutes) evening)
----------------------------------------------------------------------------------------------------------------
Qualified Individual:
................................... /
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Note: If the facility uses contracted help in an emergency response situation, the owner or operator must
provide the contractors' names and review the contractors' capacities to provide adequate personnel and
response equipment.
[[Page 104]]
1.3.5 Evacuation Plans
1.3.5.1 Based on the analysis of the facility, as discussed
elsewhere in the plan, a facility-wide evacuation plan shall be
developed. In addition, plans to evacuate parts of the facility that are
at a high risk of exposure in the event of a discharge or other release
must be developed. Evacuation routes must be shown on a diagram of the
facility (see section 1.9 of this appendix). When developing evacuation
plans, consideration must be given to the following factors, as
appropriate:
(1) Location of stored materials;
(2) Hazard imposed by discharged material;
(3) Discharge flow direction;
(4) Prevailing wind direction and speed;
(5) Water currents, tides, or wave conditions (if applicable);
(6) Arrival route of emergency response personnel and response
equipment;
(7) Evacuation routes;
(8) Alternative routes of evacuation;
(9) Transportation of injured personnel to nearest emergency medical
facility;
(10) Location of alarm/notification systems;
(11) The need for a centralized check-in area for evacuation
validation (roll call);
(12) Selection of a mitigation command center; and
(13) Location of shelter at the facility as an alternative to
evacuation.
1.3.5.2 One resource that may be helpful to owners or operators in
preparing this section of the response plan is The Handbook of Chemical
Hazard Analysis Procedures by the Federal Emergency Management Agency
(FEMA), Department of Transportation (DOT), and EPA. The Handbook of
Chemical Hazard Analysis Procedures is available from: FEMA ,
Publication Office, 500 C. Street, S.W., Washington, DC 20472, (202)
646-3484.
1.3.5.3 As specified in Sec. 112.20(h)(1)(vi), the facility owner
or operator must reference existing community evacuation plans, as
appropriate.
1.3.6 Qualified Individual's Duties
The duties of the designated qualified individual are specified in
Sec. 112.20(h)(3)(ix). The qualified individual's duties must be
described and be consistent with the minimum requirements in Sec.
112.20(h)(3)(ix). In addition, the qualified individual must be
identified with the Facility Information in section 1.2 of the response
plan.
1.4 Hazard Evaluation
This section requires the facility owner or operator to examine the
facility's operations closely and to predict where discharges could
occur. Hazard evaluation is a widely used industry practice that allows
facility owners or operators to develop a complete understanding of
potential hazards and the response actions necessary to address these
hazards. The Handbook of Chemical Hazard Analysis Procedures, prepared
by the EPA, DOT, and the FEMA and the Hazardous Materials Emergency
Planning Guide (NRT-1), prepared by the National Response Team are good
references for conducting a hazard analysis. Hazard identification and
evaluation will assist facility owners or operators in planning for
potential discharges, thereby reducing the severity of discharge impacts
that may occur in the future. The evaluation also may help the operator
identify and correct potential sources of discharges. In addition,
special hazards to workers and emergency response personnel's health and
safety shall be evaluated, as well as the facility's oil spill history.
1.4.1 Hazard Identification
The Tank and Surface Impoundment (SI) forms, or their equivalent,
that are part of this section must be completed according to the
directions below. (``Surface Impoundment'' means a facility or part of a
facility which is a natural topographic depression, man-made excavation,
or diked area formed primarily of earthen materials (although it may be
lined with man-made materials), which is designed to hold an
accumulation of liquid wastes or wastes containing free liquids, and
which is not an injection well or a seepage facility.) Similar
worksheets, or their equivalent, must be developed for any other type of
storage containers.
(1) List each tank at the facility with a separate and distinct
identifier. Begin aboveground tank identifiers with an ``A'' and
belowground tank identifiers with a ``B'', or submit multiple sheets
with the aboveground tanks and belowground tanks on separate sheets.
(2) Use gallons for the maximum capacity of a tank; and use square
feet for the area.
(3) Using the appropriate identifiers and the following
instructions, fill in the appropriate forms:
(a) Tank or SI number--Using the aforementioned identifiers (A or B)
or multiple reporting sheets, identify each tank or SI at the facility
that stores oil or hazardous materials.
(b) Substance Stored--For each tank or SI identified, record the
material that is stored therein. If the tank or SI is used to store more
than one material, list all of the stored materials.
(c) Quantity Stored--For each material stored in each tank or SI,
report the average volume of material stored on any given day.
(d) Tank Type or Surface Area/Year--For each tank, report the type
of tank (e.g., floating top), and the year the tank was originally
installed. If the tank has been refabricated, the year that the latest
refabrication was completed must be recorded in parentheses next to the
year installed. For
[[Page 105]]
each SI, record the surface area of the impoundment and the year it went
into service.
(e) Maximum Capacity--Record the operational maximum capacity for
each tank and SI. If the maximum capacity varies with the season, record
the upper and lower limits.
(f) Failure/Cause--Record the cause and date of any tank or SI
failure which has resulted in a loss of tank or SI contents.
(4) Using the numbers from the tank and SI forms, label a schematic
drawing of the facility. This drawing shall be identical to any
schematic drawings included in the SPCC Plan.
(5) Using knowledge of the facility and its operations, describe the
following in writing:
(a) The loading and unloading of transportation vehicles that risk
the discharge of oil or release of hazardous substances during transport
processes. These operations may include loading and unloading of trucks,
railroad cars, or vessels. Estimate the volume of material involved in
transfer operations, if the exact volume cannot be determined.
(b) Day-to-day operations that may present a risk of discharging oil
or releasing a hazardous substance. These activities include scheduled
venting, piping repair or replacement, valve maintenance, transfer of
tank contents from one tank to another, etc. (not including
transportation-related activities). Estimate the volume of material
involved in these operations, if the exact volume cannot be determined.
(c) The secondary containment volume associated with each tank and/
or transfer point at the facility. The numbering scheme developed on the
tables, or an equivalent system, must be used to identify each
containment area. Capacities must be listed for each individual unit
(tanks, slumps, drainage traps, and ponds), as well as the facility
total.
(d) Normal daily throughput for the facility and any effect on
potential discharge volumes that a negative or positive change in that
throughput may cause.
Hazard Identification Tanks \1\
Date of Last Update: ____
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Substance Stored (Oil
Tank No. and Hazardous Quantity Stored Tank Type/Year Maximum Capacity Failure/Cause
Substance) (gallons) (gallons)
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\1\ Tank = any container that stores oil.
Attach as many sheets as necessary.
Hazard Identification Surface Impoundments (SIs)
Date of Last Update: ____
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Quantity Stored Maximum Capacity
SI No. Substance Stored (gallons) Surface Area/Year (gallons) Failure/Cause
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[[Page 106]]
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Attach as many sheets as necessary.
1.4.2 Vulnerability Analysis
The vulnerability analysis shall address the potential effects
(i.e., to human health, property, or the environment) of an oil
discharge. Attachment C-III to Appendix C to this part provides a method
that owners or operators shall use to determine appropriate distances
from the facility to fish and wildlife and sensitive environments.
Owners or operators can use a comparable formula that is considered
acceptable by the RA. If a comparable formula is used, documentation of
the reliability and analytical soundness of the formula must be attached
to the response plan cover sheet. This analysis must be prepared for
each facility and, as appropriate, must discuss the vulnerability of:
(1) Water intakes (drinking, cooling, or other);
(2) Schools;
(3) Medical facilities;
(4) Residential areas;
(5) Businesses;
(6) Wetlands or other sensitive environments; \2\
---------------------------------------------------------------------------
\2\ Refer to the DOC/NOAA ``Guidance for Facility and Vessel
Response Plans: Fish and Wildlife and Sensitive Environments'' (See
appendix E to this part, section 13, for availability).
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(7) Fish and wildlife;
(8) Lakes and streams;
(9) Endangered flora and fauna;
(10) Recreational areas;
(11) Transportation routes (air, land, and water);
(12) Utilities; and
(13) Other areas of economic importance (e.g., beaches, marinas)
including terrestrially sensitive environments, aquatic environments,
and unique habitats.
1.4.3 Analysis of the Potential for an Oil Discharge
Each owner or operator shall analyze the probability of a discharge
occurring at the facility. This analysis shall incorporate factors such
as oil discharge history, horizontal range of a potential discharge, and
vulnerability to natural disaster, and shall, as appropriate,
incorporate other factors such as tank age. This analysis will provide
information for developing discharge scenarios for a worst case
discharge and small and medium discharges and aid in the development of
techniques to reduce the size and frequency of discharges. The owner or
operator may need to research the age of the tanks the oil discharge
history at the facility.
1.4.4 Facility Reportable Oil Spill History
Briefly describe the facility's reportable oil spill \3\ history for
the entire life of the facility to the extent that such information is
reasonably identifiable, including:
---------------------------------------------------------------------------
\3\ As described in 40 CFR part 110, reportable oil spills are those
that: (a) violate applicable water quality standards, or (b) cause a
film or sheen upon or discoloration of the surface of the water or
adjoining shorelines or cause a sludge or emulsion to be deposited
beneath the surface of the water or upon adjoining shorelines.
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(1) Date of discharge(s);
(2) List of discharge causes;
(3) Material(s) discharged;
(4) Amount discharged in gallons;
(5) Amount of discharge that reached navigable waters, if
applicable;
(6) Effectiveness and capacity of secondary containment;
(7) Clean-up actions taken;
(8) Steps taken to reduce possibility of recurrence;
(9) Total oil storage capacity of the tank(s) or impoundment(s) from
which the material discharged;
(10) Enforcement actions;
(11) Effectiveness of monitoring equipment; and
(12) Description(s) of how each oil discharge was detected.
[[Page 107]]
The information solicited in this section may be similar to requirements
in 40 CFR 112.4(a). Any duplicate information required by Sec. 112.4(a)
may be photocopied and inserted.
1.5 Discharge Scenarios
In this section, the owner or operator is required to provide a
description of the facility's worst case discharge, as well as a small
and medium discharge, as appropriate. A multi-level planning approach
has been chosen because the response actions to a discharge (i.e.,
necessary response equipment, products, and personnel) are dependent on
the magnitude of the discharge. Planning for lesser discharges is
necessary because the nature of the response may be qualitatively
different depending on the quantity of the discharge. The facility owner
or operator shall discuss the potential direction of the discharge
pathway.
1.5.1 Small and Medium Discharges
1.5.1.1 To address multi-level planning requirements, the owner or
operator must consider types of facility-specific discharge scenarios
that may contribute to a small or medium discharge. The scenarios shall
account for all the operations that take place at the facility,
including but not limited to:
(1) Loading and unloading of surface transportation;
(2) Facility maintenance;
(3) Facility piping;
(4) Pumping stations and sumps;
(5) Oil storage tanks;
(6) Vehicle refueling; and
(7) Age and condition of facility and components.
1.5.1.2 The scenarios shall also consider factors that affect the
response efforts required by the facility. These include but are not
limited to:
(1) Size of the discharge;
(2) Proximity to downgradient wells, waterways, and drinking water
intakes;
(3) Proximity to fish and wildlife and sensitive environments;
(4) Likelihood that the discharge will travel offsite (i.e.,
topography, drainage);
(5) Location of the material discharged (i.e., on a concrete pad or
directly on the soil);
(6) Material discharged;
(7) Weather or aquatic conditions (i.e., river flow);
(8) Available remediation equipment;
(9) Probability of a chain reaction of failures; and
(10) Direction of discharge pathway.
1.5.2 Worst Case Discharge
1.5.2.1 In this section, the owner or operator must identify the
worst case discharge volume at the facility. Worksheets for production
and non-production facility owners or operators to use when calculating
worst case discharge are presented in appendix D to this part. When
planning for the worst case discharge response, all of the
aforementioned factors listed in the small and medium discharge section
of the response plan shall be addressed.
1.5.2.2 For onshore storage facilities and production facilities,
permanently manifolded oil storage tanks are defined as tanks that are
designed, installed, and/or operated in such a manner that the multiple
tanks function as one storage unit (i.e., multiple tank volumes are
equalized). In this section of the response plan, owners or operators
must provide evidence that oil storage tanks with common piping or
piping systems are not operated as one unit. If such evidence is
provided and is acceptable to the RA, the worst case discharge volume
shall be based on the combined oil storage capacity of all manifold
tanks or the oil storage capacity of the largest single oil storage tank
within the secondary containment area, whichever is greater. For
permanently manifolded oil storage tanks that function as one storage
unit, the worst case discharge shall be based on the combined oil
storage capacity of all manifolded tanks or the oil storage capacity of
the largest single tank within a secondary containment area, whichever
is greater. For purposes of the worst case discharge calculation,
permanently manifolded oil storage tanks that are separated by internal
divisions for each tank are considered to be single tanks and individual
manifolded tank volumes are not combined.
1.6 Discharge Detection Systems
In this section, the facility owner or operator shall provide a
detailed description of the procedures and equipment used to detect
discharges. A section on discharge detection by personnel and a
discussion of automated discharge detection, if applicable, shall be
included for both regular operations and after hours operations. In
addition, the facility owner or operator shall discuss how the
reliability of any automated system will be checked and how frequently
the system will be inspected.
1.6.1 Discharge Detection by Personnel
In this section, facility owners or operators shall describe the
procedures and personnel that will detect any discharge of oil or
release of a hazardous substance. A thorough discussion of facility
inspections must be included. In addition, a description of initial
response actions shall be addressed. This section shall reference
section 1.3.1 of the response plan for emergency response information.
[[Page 108]]
1.6.2 Automated Discharge Detection
In this section, facility owners or operators must describe any
automated discharge detection equipment that the facility has in place.
This section shall include a discussion of overfill alarms, secondary
containment sensors, etc. A discussion of the plans to verify an
automated alarm and the actions to be taken once verified must also be
included.
1.7 Plan Implementation
In this section, facility owners or operators must explain in detail
how to implement the facility's emergency response plan by describing
response actions to be carried out under the plan to ensure the safety
of the facility and to mitigate or prevent discharges described in
section 1.5 of the response plan. This section shall include the
identification of response resources for small, medium, and worst case
discharges; disposal plans; and containment and drainage planning. A
list of those personnel who would be involved in the cleanup shall be
identified. Procedures that the facility will use, where appropriate or
necessary, to update their plan after an oil discharge event and the
time frame to update the plan must be described.
1.7.1 Response Resources for Small, Medium, and Worst Case Discharages
1.7.1.1 Once the discharge scenarios have been identified in section
1.5 of the response plan, the facility owner or operator shall identify
and describe implementation of the response actions. The facility owner
or operator shall demonstrate accessibility to the proper response
personnel and equipment to effectively respond to all of the identified
discharge scenarios. The determination and demonstration of adequate
response capability are presented in appendix E to this part. In
addition, steps to expedite the cleanup of oil discharges must be
discussed. At a minimum, the following items must be addressed:
(1) Emergency plans for spill response;
(2) Additional response training;
(3) Additional contracted help;
(4) Access to additional response equipment/experts; and
(5) Ability to implement the plan including response training and
practice drills.
1.7.1.2A recommended form detailing immediate actions follows.
Oil Spill Response--Immediate Actions
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1. Stop the product flow.................. Act quickly to secure pumps,
close valves, etc.
2. Warn personnel......................... Enforce safety and security
measures.
3. Shut off ignition sources.............. Motors, electrical circuits,
open flames, etc.
4. Initiate containment................... Around the tank and/or in
the water with oil boom.
5. Notify NRC............................. 1-800-424-8802
6. Notify OSC
7. Notify, as appropriate
------------------------------------------------------------------------
Source: FOSS, Oil Spill Response--Emergency Procedures, Revised December
3, 1992.
1.7.2 Disposal Plans
1.7.2.1 Facility owners or operators must describe how and where the
facility intends to recover, reuse, decontaminate, or dispose of
materials after a discharge has taken place. The appropriate permits
required to transport or dispose of recovered materials according to
local, State, and Federal requirements must be addressed. Materials that
must be accounted for in the disposal plan, as appropriate, include:
(1) Recovered product;
(2) Contaminated soil;
(3) Contaminated equipment and materials, including drums, tank
parts, valves, and shovels;
(4) Personnel protective equipment;
(5) Decontamination solutions;
(6) Adsorbents; and
(7) Spent chemicals.
1.7.2.2 These plans must be prepared in accordance with Federal
(e.g., the Resource Conservation and Recovery Act [RCRA]), State, and
local regulations, where applicable. A copy of the disposal plans from
the facility's SPCC Plan may be inserted with this section, including
any diagrams in those plans.
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Disposal RCRA permit/
Material facility Location manifest
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1.
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2.
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3.
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4.
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1.7.3 Containment and Drainage Planning
A proper plan to contain and control a discharge through drainage
may limit the threat of harm to human health and the environment. This
section shall describe how to contain and control a discharge through
drainage, including:
[[Page 109]]
(1) The available volume of containment (use the information
presented in section 1.4.1 of the response plan);
(2) The route of drainage from oil storage and transfer areas;
(3) The construction materials used in drainage troughs;
(4) The type and number of valves and separators used in the
drainage system;
(5) Sump pump capacities;
(6) The containment capacity of weirs and booms that might be used
and their location (see section 1.3.2 of this appendix); and
(7) Other cleanup materials.
In addition, a facility owner or operator must meet the inspection
and monitoring requirements for drainage contained in 40 CFR part 112,
subparts A through C. A copy of the containment and drainage plans that
are required in 40 CFR part 112, subparts A through C may be inserted in
this section, including any diagrams in those plans.
Note: The general permit for stormwater drainage may contain
additional requirements.
1.8 Self-Inspection, Drills/Exercises, and Response Training
The owner or operator must develop programs for facility response
training and for drills/exercises according to the requirements of 40
CFR 112.21. Logs must be kept for facility drills/exercises, personnel
response training, and spill prevention meetings. Much of the
recordkeeping information required by this section is also contained in
the SPCC Plan required by 40 CFR 112.3. These logs may be included in
the facility response plan or kept as an annex to the facility response
plan.
1.8.1 Facility Self-Inspection
Under 40 CFR 112.7(e), you must include the written procedures and
records of inspections for each facility in the SPCC Plan. You must
include the inspection records for each container, secondary
containment, and item of response equipment at the facility. You must
cross-reference the records of inspections of each container and
secondary containment required by 40 CFR 112.7(e) in the facility
response plan. The inspection record of response equipment is a new
requirement in this plan. Facility self-inspection requires two-steps:
(1) a checklist of things to inspect; and (2) a method of recording the
actual inspection and its findings. You must note the date of each
inspection. You must keep facility response plan records for five years.
You must keep SPCC records for three years.
1.8.1.1. Tank Inspection
The tank inspection checklist presented below has been included as
guidance during inspections and monitoring. Similar requirements exist
in 40 CFR part 112, subparts A through C. Duplicate information from the
SPCC Plan may be photocopied and inserted in this section. The
inspection checklist consists of the following items:
Tank Inspection Checklist
1. Check tanks for leaks, specifically looking for:
A. drip marks;
B. discoloration of tanks;
C. puddles containing spilled or leaked material;
D. corrosion;
E. cracks; and
F. localized dead vegetation.
2. Check foundation for:
A. cracks;
B. discoloration;
C. puddles containing spilled or leaked material;
D. settling;
E. gaps between tank and foundation; and
F. damage caused by vegetation roots.
3. Check piping for:
A. droplets of stored material;
B. discoloration;
C. corrosion;
D. bowing of pipe between supports;
E. evidence of stored material seepage from valves or seals; and
F. localized dead vegetation.
Tank/Surface Impoundment Inspection Log
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Inspector Tank or SI Date Comments
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[[Page 110]]
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1.8.1.2 Response Equipment Inspection
Using the Emergency Response Equipment List provided in section
1.3.2 of the response plan, describe each type of response equipment,
checking for the following:
Response Equipment Checklist
1. Inventory (item and quantity);
2. Storage location;
3. Accessibility (time to access and respond);
4. Operational status/condition;
5. Actual use/testing (last test date and frequency of testing); and
6. Shelf life (present age, expected replacement date).
Please note any discrepancies between this list and the available
response equipment.
Response Equipment Inspection Log
[Use section 1.3.2 of the response plan as a checklist]
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Inspector Date Comments
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[[Page 111]]
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1.8.1.3 Secondary Containment Inspection
Inspect the secondary containment (as described in sections 1.4.1
and 1.7.2 of the response plan), checking the following:
Secondary Containment Checklist
1. Dike or berm system.
A. Level of precipitation in dike/available capacity;
B. Operational status of drainage valves;
C. Dike or berm permeability;
D. Debris;
E. Erosion;
F. Permeability of the earthen floor of diked area; and
G. Location/status of pipes, inlets, drainage beneath tanks, etc.
2. Secondary containment
A. Cracks;
B. Discoloration;
C. Presence of spilled or leaked material (standing liquid);
D. Corrosion; and
E. Valve conditions.
3. Retention and drainage ponds
A. Erosion;
B. Available capacity;
C. Presence of spilled or leaked material;
D. Debris; and
E. Stressed vegetation.
The tank inspection checklist presented below has been included as
guidance during inspections and monitoring. Similar requirements exist
in 40 CFR part 112, subparts A through C. Similar requirements exist in
40 CFR 112.7(e). Duplicate information from the SPCC Plan may be
photocopied and inserted in this section.
1.8.2 Facility Drills/Exercises
(A) CWA section 311(j)(5), as amended by OPA, requires the response
plan to contain a description of facility drills/exercises. According to
40 CFR 112.21(c), the facility owner or operator shall develop a program
of facility response drills/exercises, including evaluation procedures.
Following the PREP guidelines (see appendix E to this part, section 13,
for availability) would satisfy a facility's requirements for drills/
exercises under this part. Alternately, under Sec. 112.21(c), a
facility owner or operator may develop a program that is not based on
the PREP guidelines. Such a program is subject to approval by the
Regional Administrator based on the description of the program provided
in the response plan.
(B) The PREP Guidelines specify that the facility conduct internal
and external drills/exercises. The internal exercises include: qualified
individual notification drills, spill management team tabletop
exercises, equipment deployment exercises, and unannounced exercises.
External exercises include Area Exercises. Credit for an Area or
Facility-specific Exercise will be given to the facility for an actual
response to a discharge in the area if the plan was utilized for
response to the discharge and the objectives of the Exercise were met
and were properly evaluated, documented, and self-certified.
(C) Section 112.20(h)(8)(ii) requires the facility owner or operator
to provide a description of the drill/exercise program to be carried out
under the response plan. Qualified Individual Notification Drill and
Spill Management Team Tabletop Drill logs shall be provided in sections
1.8.2.1 and 1.8.2.2, respectively. These logs may be included in the
facility response plan or kept as an annex to the facility response
plan. See section 1.3.3 of this appendix for Equipment Deployment Drill
Logs.
[[Page 112]]
1.8.2.1 Qualified Individual Notification Drill Logs
Qualified Individual Notification Drill Log
Date:___________________________________________________________________
Company:________________________________________________________________
Qualified Individual(s):________________________________________________
Emergency Scenario:_____________________________________________________
________________________________________________________________________
________________________________________________________________________
Evaluation:_____________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
Changes to be Implemented:______________________________________________
________________________________________________________________________
________________________________________________________________________
Time Table for Implementation:__________________________________________
________________________________________________________________________
1.8.2.2 Spill Management Team Tabletop Exercise Logs
Spill Management Team Tabletop Exercise Log
Date:___________________________________________________________________
Company:________________________________________________________________
Qualified Individual(s):________________________________________________
Emergency Scenario:_____________________________________________________
________________________________________________________________________
________________________________________________________________________
Evaluation:_____________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
Changes to be Implemented:______________________________________________
________________________________________________________________________
________________________________________________________________________
Time Table for Implementation:__________________________________________
1.8.3 Response Training
Section 112.21(a) requires facility owners or operators to develop
programs for facility response training. Facility owners or operators
are required by Sec. 112.20(h)(8)(iii) to provide a description of the
response training program to be carried out under the response plan. A
facility's training program can be based on the USCG's Training Elements
for Oil Spill Response, to the extent applicable to facility operations,
or another response training program acceptable to the RA. The training
elements are available from the USCG Office of Response (G-MOR) at (202)
267-0518 or fax (202) 267-4085. Personnel response training logs and
discharge prevention meeting logs shall be included in sections 1.8.3.1
and 1.8.3.2 of the response plan respectively. These logs may be
included in the facility response plan or kept as an annex to the
facility response plan.
1.8.3.1 Personnel Response Training Logs
Personnel Response Training Log
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Response training/ Prevention training/
Name date and number of date and number of
hours hours
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1.8.3.2 Discharge Prevention Meetings Logs
Discharge Prevention Meeting Log
Date:___________________________________________________________________
Attendees:______________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
[[Page 113]]
________________________________________________________________________
------------------------------------------------------------------------
Subject/issue identified Required action Implementation date
------------------------------------------------------------------------
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1.9 Diagrams
The facility-specific response plan shall include the following
diagrams. Additional diagrams that would aid in the development of
response plan sections may also be included.
(1) The Site Plan Diagram shall, as appropriate, include and identify:
(A) the entire facility to scale;
(B) above and below ground bulk oil storage tanks;
(C) the contents and capacities of bulk oil storage tanks;
(D) the contents and capacity of drum oil storage areas;
(E) the contents and capacities of surface impoundments;
(F) process buildings;
(G) transfer areas;
(H) secondary containment systems (location and capacity);
(I) structures where hazardous materials are stored or handled,
including materials stored and capacity of storage;
(J) location of communication and emergency response equipment;
(K) location of electrical equipment which contains oil; and
(L) for complexes only, the interface(s) (i.e., valve or component)
between the portion of the facility regulated by EPA and the portion(s)
regulated by other Agencies. In most cases, this interface is defined as
the last valve inside secondary containment before piping leaves the
secondary containment area to connect to the transportation-related
portion of the facility (i.e., the structure used or intended to be used
to transfer oil to or from a vessel or pipeline). In the absence of
secondary containment, this interface is the valve manifold adjacent to
the tank nearest the transfer structure as described above. The
interface may be defined differently at a specific facility if agreed to
by the RA and the appropriate Federal official.
(2) The Site Drainage Plan Diagram shall, as appropriate, include:
(A) major sanitary and storm sewers, manholes, and drains;
(B) weirs and shut-off valves;
(C) surface water receiving streams;
(D) fire fighting water sources;
(E) other utilities;
(F) response personnel ingress and egress;
(G) response equipment transportation routes; and
(H) direction of discharge flow from discharge points.
(3) The Site Evacuation Plan Diagram shall, as appropriate, include:
(A) site plan diagram with evacuation route(s); and
(B) location of evacuation regrouping areas.
1.10 Security
According to 40 CFR 112.7(g) facilities are required to maintain a
certain level of security, as appropriate. In this section, a
description of the facility security shall be provided and include, as
appropriate:
(1) emergency cut-off locations (automatic or manual valves);
(2) enclosures (e.g., fencing, etc.);
(3) guards and their duties, day and night;
(4) lighting;
(5) valve and pump locks; and
(6) pipeline connection caps.
The SPCC Plan contains similar information. Duplicate information may be
photocopied and inserted in this section.
2.0 Response Plan Cover Sheet
A three-page form has been developed to be completed and submitted
to the RA by owners or operators who are required to prepare and submit
a facility-specific response plan. The cover sheet (Attachment F-1) must
accompany the response plan to provide the Agency with basic information
concerning the facility. This section will describe the Response Plan
Cover Sheet and provide instructions for its completion.
2.1 General Information
Owner/Operator of Facility: Enter the name of the owner of the
facility (if the owner is the operator). Enter the operator of the
facility if otherwise. If the owner/operator of
[[Page 114]]
the facility is a corporation, enter the name of the facility's
principal corporate executive. Enter as much of the name as will fit in
each section.
(1) Facility Name: Enter the proper name of the facility.
(2) Facility Address: Enter the street address, city, State, and zip
code.
(3) Facility Phone Number: Enter the phone number of the facility.
(4) Latitude and Longitude: Enter the facility latitude and
longitude in degrees, minutes, and seconds.
(5) Dun and Bradstreet Number: Enter the facility's Dun and
Bradstreet number if available (this information may be obtained from
public library resources).
(6) North American Industrial Classification System (NAICS) Code:
Enter the facility's NAICS code as determined by the Office of
Management and Budget (this information may be obtained from public
library resources.)
(7) Largest Oil Storage Tank Capacity: Enter the capacity in GALLONS
of the largest aboveground oil storage tank at the facility.
(8) Maximum Oil Storage Capacity: Enter the total maximum capacity
in GALLONS of all aboveground oil storage tanks at the facility.
(9) Number of Oil Storage Tanks: Enter the number of all aboveground
oil storage tanks at the facility.
(10) Worst Case Discharge Amount: Using information from the
worksheets in appendix D, enter the amount of the worst case discharge
in GALLONS.
(11) Facility Distance to Navigable Waters: Mark the appropriate
line for the nearest distance between an opportunity for discharge
(i.e., oil storage tank, piping, or flowline) and a navigable water.
2.2 Applicability of Substantial Harm Criteria
Using the flowchart provided in Attachment C-I to appendix C to this
part, mark the appropriate answer to each question. Explanations of
referenced terms can be found in Appendix C to this part. If a
comparable formula to the ones described in Attachment C-III to appendix
C to this part is used to calculate the planning distance, documentation
of the reliability and analytical soundness of the formula must be
attached to the response plan cover sheet.
2.3 Certification
Complete this block after all other questions have been answered.
3.0 Acronyms
ACP: Area Contingency Plan
ASTM: American Society of Testing Materials
bbls: Barrels
bpd: Barrels per Day
bph: Barrels per Hour
CHRIS: Chemical Hazards Response Information System
CWA: Clean Water Act
DOI: Department of Interior
DOC: Department of Commerce
DOT: Department of Transportation
EPA: Environmental Protection Agency
FEMA: Federal Emergency Management Agency
FR: Federal Register
gal: Gallons
gpm: Gallons per Minute
HAZMAT: Hazardous Materials
LEPC: Local Emergency Planning Committee
MMS: Minerals Management Service (part of DOI)
NAICS: North American Industrial Classification System
NCP: National Oil and Hazardous Substances Pollution Contingency Plan
NOAA: National Oceanic and Atmospheric Administration (part of DOC)
NRC: National Response Center
NRT: National Response Team
OPA: Oil Pollution Act of 1990
OSC: On-Scene Coordinator
PREP: National Preparedness for Response Exercise Program
RA: Regional Administrator
RCRA: Resource Conservation and Recovery Act
RRC: Regional Response Centers
RRT: Regional Response Team
RSPA: Research and Special Programs Administration
SARA: Superfund Amendments and Reauthorization Act
SERC: State Emergency Response Commission
SDWA: Safe Drinking Water Act of 1986
SI: Surface Impoundment
SPCC: Spill Prevention, Control, and Countermeasures
USCG: United States Coast Guard
4.0 References
CONCAWE. 1982. Methodologies for Hazard Analysis and Risk Assessment
in the Petroleum Refining and Storage Industry. Prepared by CONCAWE's
Risk Assessment Ad-hoc Group.
U.S. Department of Housing and Urban Development. 1987. Siting of
HUD-Assisted Projects Near Hazardous Facilities: Acceptable Separation
Distances from Explosive and Flammable Hazards. Prepared by the Office
of Environment and Energy, Environmental Planning Division, Department
of Housing and Urban Development. Washington, DC.
U.S. DOT, FEMA and U.S. EPA. Handbook of Chemical Hazard Analysis
Procedures.
U.S. DOT, FEMA and U.S. EPA. Technical Guidance for Hazards
Analysis: Emergency
[[Page 115]]
Planning for Extremely Hazardous Substances.
The National Response Team. 1987. Hazardous Materials Emergency
Planning Guide. Washington, DC.
The National Response Team. 1990. Oil Spill Contingency Planning,
National Status: A Report to the President. Washington, DC. U.S.
Government Printing Office.
Offshore Inspection and Enforcement Division. 1988. Minerals
Management Service, Offshore Inspection Program: National Potential
Incident of Noncompliance (PINC) List. Reston, VA.
Attachments to Appendix F
Attachment F-1--Response Plan Cover Sheet
This cover sheet will provide EPA with basic information concerning
the facility. It must accompany a submitted facility response plan.
Explanations and detailed instructions can be found in appendix F.
Please type or write legibly in blue or black ink. Public reporting
burden for the collection of this information is estimated to vary from
1 hour to 270 hours per response in the first year, with an average of 5
hours per response. This estimate includes time for reviewing
instructions, searching existing data sources, gathering the data
needed, and completing and reviewing the collection of information. Send
comments regarding the burden estimate of this information, including
suggestions for reducing this burden to: Chief, Information Policy
Branch, Mail Code: PM-2822, U.S. Environmental Protection Agency, Ariel
Rios Building, 1200 Pennsylvania Avenue, NW., Washington, DC 20460; and
to the Office of Information and Regulatory Affairs, Office of
Management and Budget, Washington D.C. 20503.
General Information
Owner/Operator of Facility:_____________________________________________
Facility Name:__________________________________________________________
Facility Address (street address or route):_____________________________
City, State, and U.S. Zip Code:_________________________________________
Facility Phone No.:_____________________________________________________
Latitude (Degrees: North):______________________________________________
degrees, minutes, seconds_______________________________________________
Dun & Bradstreet Number: \1\____________________________________________
---------------------------------------------------------------------------
\1\ These numbers may be obtained from public library resources.
---------------------------------------------------------------------------
Largest Aboveground Oil Storage Tank Capacity (Gallons):________________
Number of Aboveground Oil Storage Tanks:________________________________
________________________________________________________________________
Longitude (Degrees: West):
________________________________________________________________________
degrees, minutes, seconds_______________________________________________
North American Industrial Classification System (NAICS) Code: \1\_______
Maximum Oil Storage Capacity (Gallons):_________________________________
Worst Case Oil Discharge Amount (Gallons):______________________________
Facility Distance to Navigable Water. Mark the appropriate line.________
0-\1/4\ mile __ \1/4\-\1/2\ mile __ \1/2\-1 mile __ 1 mile __
Applicability of Substantial Harm Criteria
Does the facility transfer oil over-water \2\ to or from vessels and
does the facility have a total oil storage capacity greater than or
equal to 42,000 gallons?
---------------------------------------------------------------------------
\2\ Explanations of the above-referenced terms can be found in
appendix C to this part. If a comparable formula to the ones contained
in Attachment C-III is used to establish the appropriate distance to
fish and wildlife and sensitive environments or public drinking water
intakes, documentation of the reliability and analytical soundness of
the formula must be attached to this form.
---------------------------------------------------------------------------
Yes_____________________________________________________________________
No______________________________________________________________________
Does the facility have a total oil storage capacity greater than or
equal to 1 million gallons and, within any storage area, does the
facility lack secondary containment \2\ that is sufficiently large to
contain the capacity of the largest aboveground oil storage tank plus
sufficient freeboard to allow for precipitation?
Yes_____________________________________________________________________
No______________________________________________________________________
Does the facility have a total oil storage capacity greater than or
equal to 1 million gallons and is the facility located at a distance \2\
(as calculated using the appropriate formula in appendix C or a
comparable formula) such that a discharge from the facility could cause
injury to fish and wildlife and sensitive environments? \3\
---------------------------------------------------------------------------
\3\ For further description of fish and wildlife and sensitive
environments, see Appendices I, II, and III to DOC/NOAA's ``Guidance for
Facility and Vessel Response Plans: Fish and Wildlife and Sensitive
Environments'' (see appendix E to this part, section 13, for
availability) and the applicable ACP.
---------------------------------------------------------------------------
Yes_____________________________________________________________________
No______________________________________________________________________
Does the facility have a total oil storage capacity greater than or
equal to 1 million gallons and is the facility located at a distance \2\
(as calculated using the appropriate formula in appendix C or a
comparable formula) such that a discharge from the facility would shut
down a public drinking water intake? \2\________________________________
Yes_____________________________________________________________________
[[Page 116]]
________________________________________________________________________
No______________________________________________________________________
Does the facility have a total oil storage capacity greater than or
equal to 1 million gallons and has the facility experienced a reportable
oil spill \2\ in an amount greater than or equal to 10,000 gallons
within the last 5 years?
Yes_____________________________________________________________________
No______________________________________________________________________
Certification
I certify under penalty of law that I have personally examined and
am familiar with the information submitted in this document, and that
based on my inquiry of those individuals responsible for obtaining
information, I believe that the submitted information is true, accurate,
and complete.
Signature:______________________________________________________________
Name (Please type or print):____________________________________________
Title:__________________________________________________________________
Date:___________________________________________________________________
[59 FR 34122, July 1, 1994; 59 FR 49006, Sept. 26, 1994, as amended at
65 FR 40816, June 30, 2000; 65 FR 43840, July 14, 2000; 66 FR 34561,
June 29, 2001; 67 FR 47152, July 17, 2002]
Sec. Appendix G to Part 112--Tier I Qualified Facility SPCC Plan
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[74 FR 58811, Nov. 13, 2009]
PART 113_LIABILITY LIMITS FOR SMALL ONSHORE STORAGE FACILITIES
--Table of Contents
Subpart A_Oil Storage Facilities
Sec.
113.1 Purpose.
113.2 Applicability.
113.3 Definitions.
113.4 Size classes and associated liability limits for fixed onshore oil
storage facilities, 1,000 barrels or less capacity.
113.5 Exclusions.
113.6 Effect on other laws.
Authority: Sec. 311(f)(2), 86 Stat. 867 (33 U.S.C. 1251 (1972)).
Source: 38 FR 25440, Sept. 13, 1973, unless otherwise noted.
Subpart A_Oil Storage Facilities
Sec. 113.1 Purpose.
This subpart establishes size classifications and associated
liability limits for small onshore oil storage facilities with fixed
capacity of 1,000 barrels or less.
Sec. 113.2 Applicability.
This subpart applies to all onshore oil storage facilities with
fixed capacity of 1,000 barrels or less. When a discharge to the waters
of the United States occurs from such facilities and when removal of
said discharge is performed by the United States Government pursuant to
the provisions of subsection 311(c)(1) of the Act, the liability
[[Page 139]]
of the owner or operator and the facility will be limited to the amounts
specified in Sec. 113.4.
Sec. 113.3 Definitions.
As used in this subpart, the following terms shall have the meanings
indicated below:
(a) Aboveground storage facility means a tank or other container,
the bottom of which is on a plane not more than 6 inches below the
surrounding surface.
(b) Act means the Federal Water Pollution Control Act, as amended,
33 U.S.C. 1151, et seq.
(c) Barrel means 42 United States gallons at 60 degrees Fahrenheit.
(d) Belowground storage facility means a tank or other container
located other than as defined as ``Aboveground''.
(e) Discharge includes, but is not limited to any spilling, leaking,
pumping, pouring, emitting, emptying or dumping.
(f) Onshore Oil Storage Facility means any facility (excluding motor
vehicles and rolling stock) of any kind located in, on, or under, any
land within the United States, other than submerged land.
(g) On-Scene Coordinator is the single Federal representative
designated pursuant to the National Oil and Hazardous Substances
Pollution Contingency Plan and identified in approved Regional Oil and
Hazardous Substances Pollution Contingency Plans.
(h) Oil means oil of any kind or in any form, including but not
limited to, petroleum, fuel oil, sludge, oil refuse, and oil mixed with
wastes other than dredged spoil.
(i) Remove or removal means the removal of the oil from the water
and shorelines or the taking of such other actions as the Federal On-
Scene Coordinator may determine to be necessary to minimize or mitigate
damage to the public health or welfare, including but not limited to,
fish, shellfish, wildlife, and public and private property, shorelines,
and beaches.
Additionally, the terms not otherwise defined herein shall have the
meanings assigned them by section 311(a) of the Act.
Sec. 113.4 Size classes and associated liability limits for fixed
onshore oil storage facilities, 1,000 barrels or less capacity.
Unless the United States can show that oil was discharged as a
result of willful negligence or willful misconduct within the privity
and knowledge of the owner or operator, the following limits of
liability are established for fixed onshore facilities in the classes
specified:
(a) Aboveground storage.
------------------------------------------------------------------------
Limit
Size class Capacity (barrels) (dollars)
------------------------------------------------------------------------
I................................... Up to 10............... 4,000
II.................................. 11 to 170.............. 60,000
III................................. 171 to 500............. 150,000
IV.................................. 501 to 1,000........... 200,000
------------------------------------------------------------------------
(b) Belowground storage.
------------------------------------------------------------------------
Limit
Size class Capacity (barrels) (dollars)
------------------------------------------------------------------------
I................................... Up to 10............... 5,200
II.................................. 11 to 170.............. 78,000
III................................. 171 to 500............. 195,000
IV.................................. 501 to 1,000........... 260,000
------------------------------------------------------------------------
Sec. 113.5 Exclusions.
This subpart does not apply to:
(a) Those facilities whose average daily oil throughout is more than
their fixed oil storage capacity.
(b) Vehicles and rolling stock.
Sec. 113.6 Effect on other laws.
Nothing herein shall be construed to limit the liability of any
facility under State or local law or under any Federal law other than
section 311 of the Act, nor shall the liability of any facility for any
charges or damages under State or local law reduce its liability to the
Federal Government under section 311 of the Act, as limited by this
subpart.
PART 116_DESIGNATION OF HAZARDOUS SUBSTANCES--Table of Contents
Sec.
116.1 Applicability.
116.2 Abbreviations.
116.3 Definitions.
116.4 Designation of hazardous substances.
Authority: 33 U.S.C. 1251 et seq.
[[Page 140]]
Sec. 116.1 Applicability.
This regulation designates hazardous substances under section
311(b)(2)(A) of the Federal Water Pollution Control Act (the Act). The
regulation applies to discharges of substances designated in Table
116.4.
[43 FR 10474, Mar. 13, 1978]
Sec. 116.2 Abbreviations.
ppm = parts per million
mg = milligram(s)
kg = kilogram(s)
mg/l = milligrams(s) per liter= (approx.) ppm
mg/kg = milligram(s) per kilogram= (approx.) ppm
[43 FR 10474, Mar. 13, 1978]
Sec. 116.3 Definitions.
As used in this part, all terms shall have the meaning defined in
the Act and as given below:
The Act means the Federal Water Pollution Control Act, as amended by
the Federal Water Pollution Control Act Amendments of 1972 (Pub. L. 92-
500), and as further amended by the Clean Water Act of 1977 (Pub. L. 95-
217), 33 U.S.C. 1251 et seq.; and as further amended by the Clean Water
Act Amendments of 1978 (Pub. L. 95-676);
Animals means appropriately sensitive animals which carry out
respiration by means of a lung structure permitting gaseous exchange
between air and the circulatory system;
Aquatic animals means appropriately sensitive wholly aquatic animals
which carry out respiration by means of a gill structure permitting
gaseous exchange between the water and the circulatory system;
Aquatic flora means plant life associated with the aquatic eco-
system including, but not limited to, algae and higher plants;
Contiguous zone means the entire zone established or to be
established by the United States under article 24 of the Convention of
the Territorial Sea and the Contiguous Zone;
Discharge includes, but is not limited to, any spilling, leaking,
pumping, pouring, emitting, emptying or dumping, but excludes (A)
discharges in compliance with a permit under section 402 of this Act,
(B) discharges resulting from circumstances identified and reviewed and
made a part of the public record with respect to a permit issued or
modified under section 402 of this Act, and subject to a condition in
such permit, and (C) continuous or anticipated intermittent discharges
from a point source, identified in a permit or permit application under
section 402 of this Act, which are caused by events occurring within the
scope of relevant operating or treatment systems;
LC50 means that concentration of material which is lethal to one-
half of the test population of aquatic animals upon continuous exposure
for 96 hours or less.
Mixture means any combination of two or more elements and/or
compounds in solid, liquid, or gaseous form except where such substances
have undergone a chemical reaction so as to become inseparable by
physical means.
Navigable waters is defined in section 502(7) of the Act to mean
``waters of the United States, including the territorial seas.''
(1) For purposes of the Clean Water Act, 33 U.S.C. 1251 et seq. and
its implementing regulations, subject to the exclusions in paragraph (2)
of this definition, the term ``waters of the United States'' means:
(i) All waters which are currently used, were used in the past, or
may be susceptible to use in interstate or foreign commerce, including
all waters which are subject to the ebb and flow of the tide;
(ii) All interstate waters, including interstate wetlands;
(iii) The territorial seas;
(iv) All impoundments of waters otherwise identified as waters of
the United States under this section;
(v) All tributaries, as defined in paragraph (3)(iii) of this
definition, of waters identified in paragraphs (1)(i) through (iii) of
this definition;
(vi) All waters adjacent to a water identified in paragraphs (1)(i)
through (v) of this definition, including wetlands, ponds, lakes,
oxbows, impoundments, and similar waters;
(vii) All waters in paragraphs (1)(vii)(A) through (E) of this
definition where they are determined, on a case-specific basis, to have
a significant
[[Page 141]]
nexus to a water identified in paragraphs (1)(i) through (iii) of this
definition. The waters identified in each of paragraphs (1)(vii)(A)
through (E) of this definition are similarly situated and shall be
combined, for purposes of a significant nexus analysis, in the watershed
that drains to the nearest water identified in paragraphs (1)(i) through
(iii) of this definition. Waters identified in this paragraph shall not
be combined with waters identified in paragraph (1)(vi) of this
definition when performing a significant nexus analysis. If waters
identified in this paragraph are also an adjacent water under paragraph
(1)(vi), they are an adjacent water and no case-specific significant
nexus analysis is required.
(A) Prairie potholes. Prairie potholes are a complex of glacially
formed wetlands, usually occurring in depressions that lack permanent
natural outlets, located in the upper Midwest.
(B) Carolina bays and Delmarva bays. Carolina bays and Delmarva bays
are ponded, depressional wetlands that occur along the Atlantic coastal
plain.
(C) Pocosins. Pocosins are evergreen shrub and tree dominated
wetlands found predominantly along the Central Atlantic coastal plain.
(D) Western vernal pools. Western vernal pools are seasonal wetlands
located in parts of California and associated with topographic
depression, soils with poor drainage, mild, wet winters and hot, dry
summers.
(E) Texas coastal prairie wetlands. Texas coastal prairie wetlands
are freshwater wetlands that occur as a mosaic of depressions, ridges,
intermound flats, and mima mound wetlands located along the Texas Gulf
Coast.
(viii) All waters located within the 100-year floodplain of a water
identified in paragraphs (1)(i) through (iii) of this definition and all
waters located within 4,000 feet of the high tide line or ordinary high
water mark of a water identified in paragraphs (1)(i) through (v) of
this definition where they are determined on a case-specific basis to
have a significant nexus to a water identified in paragraphs (1)(i)
through (iii) of this definition. For waters determined to have a
significant nexus, the entire water is a water of the United States if a
portion is located within the 100-year floodplain of a water identified
in paragraphs (1)(i) through (iii) of this definition or within 4,000
feet of the high tide line or ordinary high water mark. Waters
identified in this paragraph shall not be combined with waters
identified in paragraph (1)(vi) of this definition when performing a
significant nexus analysis. If waters identified in this paragraph are
also an adjacent water under paragraph (1)(vi), they are an adjacent
water and no case-specific significant nexus analysis is required.
(2) The following are not ``waters of the United States'' even where
they otherwise meet the terms of paragraphs (1)(iv) through (viii) of
this definition.
(i) Prior converted cropland. Notwithstanding the determination of
an area's status as prior converted cropland by any other Federal
agency, for the purposes of the Clean Water Act, the final authority
regarding Clean Water Act jurisdiction remains with EPA.
(ii) The following ditches:
(A) Ditches with ephemeral flow that are not a relocated tributary
or excavated in a tributary.
(B) Ditches with intermittent flow that are not a relocated
tributary, excavated in a tributary, or drain wetlands.
(C) Ditches that do not flow, either directly or through another
water, into a water identified in paragraphs (1)(i) through (iii) of
this definition.
(iii) The following features:
(A) Artificially irrigated areas that would revert to dry land
should application of water to that area cease;
(B) Artificial, constructed lakes and ponds created in dry land such
as farm and stock watering ponds, irrigation ponds, settling basins,
fields flooded for rice growing, log cleaning ponds, or cooling ponds;
(C) Artificial reflecting pools or swimming pools created in dry
land;
(D) Small ornamental waters created in dry land;
(E) Water-filled depressions created in dry land incidental to
mining or construction activity, including pits excavated for obtaining
fill, sand, or gravel that fill with water;
[[Page 142]]
(F) Erosional features, including gullies, rills, and other
ephemeral features that do not meet the definition of tributary, non-
wetland swales, and lawfully constructed grassed waterways; and
(G) Puddles.
(iv) Groundwater, including groundwater drained through subsurface
drainage systems.
(v) Stormwater control features constructed to convey, treat, or
store stormwater that are created in dry land.
(vi) Wastewater recycling structures constructed in dry land;
detention and retention basins built for wastewater recycling;
groundwater recharge basins; percolation ponds built for wastewater
recycling; and water distributary structures built for wastewater
recycling.
(3) In this definition, the following terms apply:
(i) Adjacent. The term adjacent means bordering, contiguous, or
neighboring a water identified in paragraphs (1)(i) through (v) of this
definition, including waters separated by constructed dikes or barriers,
natural river berms, beach dunes, and the like. For purposes of
adjacency, an open water such as a pond or lake includes any wetlands
within or abutting its ordinary high water mark. Adjacency is not
limited to waters located laterally to a water identified in paragraphs
(1)(i) through (v) of this definition. Adjacent waters also include all
waters that connect segments of a water identified in paragraphs (1)(i)
through (v) or are located at the head of a water identified in
paragraphs (1)(i) through (v) of this definition and are bordering,
contiguous, or neighboring such water. Waters being used for established
normal farming, ranching, and silviculture activities (33 U.S.C.
1344(f)) are not adjacent.
(ii) Neighboring. The term neighboring means:
(A) All waters located within 100 feet of the ordinary high water
mark of a water identified in paragraphs (1)(i) through (v) of this
definition. The entire water is neighboring if a portion is located
within 100 feet of the ordinary high water mark;
(B) All waters located within the 100-year floodplain of a water
identified in paragraphs (1)(i) through (v) of this definition and not
more than 1,500 feet from the ordinary high water mark of such water.
The entire water is neighboring if a portion is located within 1,500
feet of the ordinary high water mark and within the 100-year floodplain;
(C) All waters located within 1,500 feet of the high tide line of a
water identified in paragraphs (1)(i) or (1)(iii) of this definition,
and all waters within 1,500 feet of the ordinary high water mark of the
Great Lakes. The entire water is neighboring if a portion is located
within 1,500 feet of the high tide line or within 1,500 feet of the
ordinary high water mark of the Great Lakes.
(iii) Tributary and tributaries. The terms tributary and tributaries
each mean a water that contributes flow, either directly or through
another water (including an impoundment identified in paragraph (1)(iv)
of this definition), to a water identified in paragraphs (1)(i) through
(iii) of this definition that is characterized by the presence of the
physical indicators of a bed and banks and an ordinary high water mark.
These physical indicators demonstrate there is volume, frequency, and
duration of flow sufficient to create a bed and banks and an ordinary
high water mark, and thus to qualify as a tributary. A tributary can be
a natural, man-altered, or man-made water and includes waters such as
rivers, streams, canals, and ditches not excluded under paragraph (2) of
this definition. A water that otherwise qualifies as a tributary under
this definition does not lose its status as a tributary if, for any
length, there are one or more constructed breaks (such as bridges,
culverts, pipes, or dams), or one or more natural breaks (such as
wetlands along the run of a stream, debris piles, boulder fields, or a
stream that flows underground) so long as a bed and banks and an
ordinary high water mark can be identified upstream of the break. A
water that otherwise qualifies as a tributary under this definition does
not lose its status as a tributary if it contributes flow through a
water of the United States that does not meet the definition of
tributary or through a non-jurisdictional water to a
[[Page 143]]
water identified in paragraphs (1)(i) through (iii) of this definition.
(iv) Wetlands. The term wetlands means those areas that are
inundated or saturated by surface or groundwater at a frequency and
duration sufficient to support, and that under normal circumstances do
support, a prevalence of vegetation typically adapted for life in
saturated soil conditions. Wetlands generally include swamps, marshes,
bogs, and similar areas.
(v) Significant nexus. The term significant nexus means that a
water, including wetlands, either alone or in combination with other
similarly situated waters in the region, significantly affects the
chemical, physical, or biological integrity of a water identified in
paragraphs (1)(i) through (iii) of this definition. The term ``in the
region'' means the watershed that drains to the nearest water identified
in paragraphs (1)(i) through (iii) of this definition. For an effect to
be significant, it must be more than speculative or insubstantial.
Waters are similarly situated when they function alike and are
sufficiently close to function together in affecting downstream waters.
For purposes of determining whether or not a water has a significant
nexus, the water's effect on downstream (1)(i) through (iii) waters
shall be assessed by evaluating the aquatic functions identified in
paragraphs (3)(v)(A) through (I) of this definition. A water has a
significant nexus when any single function or combination of functions
performed by the water, alone or together with similarly situated waters
in the region, contributes significantly to the chemical, physical, or
biological integrity of the nearest water identified in paragraphs
(1)(i) through (iii) of this definition. Functions relevant to the
significant nexus evaluation are the following:
(A) Sediment trapping,
(B) Nutrient recycling,
(C) Pollutant trapping, transformation, filtering, and transport,
(D) Retention and attenuation of flood waters,
(E) Runoff storage,
(F) Contribution of flow,
(G) Export of organic matter,
(H) Export of food resources, and
(I) Provision of life cycle dependent aquatic habitat (such as
foraging, feeding, nesting, breeding, spawning, or use as a nursery
area) for species located in a water identified in paragraphs (1)(i)
through (iii) of this section.
(vi) Ordinary high water mark. The term ordinary high water mark
means that line on the shore established by the fluctuations of water
and indicated by physical characteristics such as a clear, natural line
impressed on the bank, shelving, changes in the character of soil,
destruction of terrestrial vegetation, the presence of litter and
debris, or other appropriate means that consider the characteristics of
the surrounding areas.
(vii) High tide line. The term high tide line means the line of
intersection of the land with the water's surface at the maximum height
reached by a rising tide. The high tide line may be determined, in the
absence of actual data, by a line of oil or scum along shore objects, a
more or less continuous deposit of fine shell or debris on the foreshore
or berm, other physical markings or characteristics, vegetation lines,
tidal gages, or other suitable means that delineate the general height
reached by a rising tide. The line encompasses spring high tides and
other high tides that occur with periodic frequency but does not include
storm surges in which there is a departure from the normal or predicted
reach of the tide due to the piling up of water against a coast by
strong winds such as those accompanying a hurricane or other intense
storm.
(4) Applicability date. This definition is applicable beginning on
February 6, 2020.
Offshore facility means any facility of any kind located in, on, or
under, any of the navigable waters of the United States, and any
facility of any kind which is subject to the jurisdiction of the United
States and is located in, on, or under any other waters, other than a
vessel or a public vessel;
Onshore facility means any facility (including, but not limited to,
motor vehicles and rolling stock) of any kind located in, on, or under,
any land within the United States other than submerged land;
[[Page 144]]
Otherwise subject to the jurisdiction of the United States means
subject to the jurisdiction of the United States by virtue of United
States citizenship, United States vessel documentation or numbering, or
as provided for by international agreement to which the United States is
a party.
A discharge in connection with activities under the Outer
Continental Shelf Lands Act or the Deepwater Port Act of 1974, or which
may affect natural resources belonging to, appertaining to, or under the
exclusive management authority of the United States (including resources
under the Fishery Conservation and Management Act of 1976), means: (1) A
discharge into any waters beyond the contiguous zone from any vessel or
onshore or offshore facility, which vessel or facility is subject to or
is engaged in activities under the Outer Continental Shelf Lands Act or
the Deepwater Port Act of 1974, and (2) any discharge into any waters
beyond the contiguous zone which contain, cover, or support any natural
resource belonging to, appertaining to, or under the exclusive
management authority of the United States (including resources under the
Fishery Conservation and Management Act of 1976).
Public vessel means a vessel owned or bareboat-chartered and
operated by the United States, or a State or political subdivision
thereof, or by a foreign nation, except when such vessel is engaged in
commerce.
Territorial seas means the belt of the seas measured from the line
of ordinary low water along that portion of the coast which is in direct
contact with the open sea and the line marking the seaward limit of
inland waters, and extending seaward a distance of 3 miles.
Vessel means every description of watercraft or other artificial
contrivance used, or capable of being used, as a means of transportation
on water other than a public vessel;
[43 FR 10474, Mar. 13, 1978; 43 FR 27533, June 26, 1978, as amended at
44 FR 10266, Feb. 16, 1979; 58 FR 45039, Aug. 25, 1993; 80 FR 37110,
June 29, 2015; 83 FR 5208, Feb. 6, 2018]
Sec. 116.4 Designation of hazardous substances.
The elements and compounds appearing in Tables 116.4 A and B are
designated as hazardous substances in accordance with section
311(b)(2)(A) of the Act. This designation includes any isomers and
hydrates, as well as any solutions and mixtures containing these
substances. Synonyms and Chemical Abstract System (CAS) numbers have
been added for convenience of the user only. In case of any disparity
the common names shall be considered the designated substance.
Table 116.4A--List of Hazardous Substances
----------------------------------------------------------------------------------------------------------------
Common name CAS No. Synonyms Isomers CAS No.
----------------------------------------------------------------------------------------------------------------
Acetaldehyde....................... 75070 Ethanal, ethyl aldehyde,
acetic aldehyde.
Acetic acid........................ 64197 Glacial acetic acid,
vinegar acid.
Acetic anhydride................... 108247 Acetic oxide, acetyl oxide.
Acetone cyanohydrin................ 75865 2-methyllactonitrile, alpha-
hydroxyisobutyronitrile.
Acetyl bromide..................... 506967
Acetyl chloride.................... 79367
Acrolein........................... 107028 2-propenal, acrylic
aldehyde, acrylaldehyde,
acraldehyde.
Acrylonitrile...................... 107131 Cyanoethylene, Fumigrain,
Ventox, propeneitrile,
vinyl cyanide.
Adipic acid........................ 124049 Hexanedioic acid...........
Aldrin............................. 309002 Octalene, HHDN.............
Allyl alcohol...................... 107186 2-propen-1-ol, 1-propenol-
3, vinyl carbinol.
Allyl chloride..................... 107051 3-chloropropene, 3-
chloropropylene,
Chlorallylene.
Aluminum sulfate................... 10043013 Alum.......................
Ammonia............................ 7664417
Ammonium acetate................... 631618 Acetic acid ammonium, salt.
Ammonium benzoate.................. 1863634
Ammonium bicarbonate............... 1066337 Acid ammonium carbonate,
ammonium hydrogen
carbonate.
Ammonium bichromate................ 7789095
Ammonium bifluoride................ 1341497 Acid ammonium fluoride,
ammonium hydrogen fluoride.
[[Page 145]]
Ammonium bisulfite................. 10192300
Ammonium carbamate................. 1111780 Ammonium aminoformate......
Ammonium carbonate................. 506876
Ammonium chloride.................. 12125029 Ammonium muriate, sal
ammoniac, salmiac, Amchlor.
Ammonium chromate.................. 7788989
Ammonium citrate dibasic........... 3012655 Diammonium citrate, citric
acid diammonium salt.
Ammonium fluoborate................ 13826830 Ammonium fluoroborate,
ammonium borofluoride.
Ammonium fluoride.................. 12125018 Neutral ammonium fluoride..
Ammonium hydroxide................. 1336216
Ammonium oxalate................... 6009707
5972736
14258492
Ammonium silicofluoride............ 16919190 Ammonium fluosilicate......
Ammonium sulfamate................. 7773060 Ammate, AMS, ammonium
amidosulfate.
Ammonium sulfide................... 12135761
Ammonium sulfite................... 10196040
10192300
Ammonium tartrate.................. 3164292 Tartaric acid ammonium salt
14307438
Ammonium thiocyanate............... 1762954 Ammonium rhodanide,
ammonium sulfocyanate,
ammonium sulfocyanide.
Amly acetate....................... 628637 Amylacetic ester........... iso-.................. 123922
Pear oil................... sec-.................. 626380
Banana oil................. tert-................. 625161
Aniline............................ 62533 Aniline oil, phenylamine,
aminobenzene, aminophen,
kyanol.
Antimony pentachloride............. 7647189
Antimony potassium tartrate........ 28300745 Tartar emetic, tartrated
antimony, tartarized
antimony, potassium
antimonyltartrate.
Antimony tribromide................ 7789619
Antimony trichloride............... 10025919 Butter of antimony.........
Antimony trifluoride............... 7783564 Antimony fluoride..........
Antimony trioxide.................. 1309644 Diantimony trioxide,
flowers of antimony.
Arsenic disulfide.................. 1303328 Red arsenic sulfide........
Arsenic pentoxide.................. 1303282 Arsenic acid anhydride,
arsenic oxide.
Arsenic trichloride................ 7784341 Arsenic chloride, arsenious
chloride, arsenous
chloride, butter of
arsenic.
Arsenic trioxide................... 1327533 Arsenious acid, arsenious
oxide, white arsenic.
Arsenic trisulfide................. 1303339 Arsenious sulfide, yellow
arsenic sulfide.
Barium cyanide..................... 542621
Benzene............................ 71432 Cyclohexatriene, benzol....
Benzoic acid....................... 65850 Benzenecarboxylic acid,
phenylformic acid,
dracylic acid.
Benzonitrile....................... 100470 Phenyl cyanide,
cyanobenzene.
Benzoyl chloride................... 98884 Benzenecarbonyl chloride...
Benzyl chloride.................... 100447
Beryllium chloride................. 7787475
Beryllium fluoride................. 7787497
Beryllium nitrate.................. 7787555
13597994
Butyl acetate...................... 123864 Acetic acid butyl ester.... iso-.................. 110190
sec-.................. 105464
tert-................. 540885
Butylamine......................... 109739 1-aminobutane.............. iso-.................. 78819
sec-.................. 513495
sec-.................. 13952846
tert-................. 75649
n/butyl phthalate.................. 84742 1.2-benzenedicarboxylic
acid, dibutyl ester,
dibutyl phthalate.
Butyric acid....................... 107926 Butanoic acid, ethylacetic iso-.................. 79312
acid.
Cadmium acetate.................... 543908
Cadmium bromide.................... 7789426
Cadmium chloride................... 10108642
Calcium arsenate................... 7778441 Tricalcium orthoarsenate...
Calcium arsenite................... 52740166
Calcium carbide.................... 75207 Carbide, acetylenogen......
Calcium chromate................... 13765190 Calcium chrome yellow,
geblin, yellow ultramarine.
Calcium cyanide.................... 592018
[[Page 146]]
Calcium dodecylbenzenesulfonate.... 26264062
Calcium hypochlorite............... 7778543
Captan............................. 133062 Orthocide-406, SR-406,
Vancide-89.
Carbaryl........................... 63252 Sevin......................
Carbofuran......................... 1563662 Furadan....................
Carbon disulfide................... 75150 Carbon bisulfide,
dithiocarbonic anhydride.
Carbon tetrachloride............... 56235 Tetrachloromethane
Perchloromethane.
Chlordane.......................... 57749 Toxichlor, chlordan........
Chlorine........................... 75003
Chlorobenzene...................... 108907 Monochlorobenzene, benzene
chloride.
Chloroform......................... 67663 Trichloromethane...........
Chlorpyrifos....................... 2921882 Dursban....................
Chlorosulfonic acid................ 7790945 Sulfuric chlorohydrin......
Chromic acetate.................... 1066304
Chromic acid....................... 11115745 Chromic anhydride, chromium
trioxide.
Chromic sulfate.................... 10101538
Chromous chloride.................. 10049055
Cobaltous bromide.................. 7789437 Cobalt bromide.............
Coabaltous formate................. 544183 Cobalt formate.............
Cobaltous sulfamate................ 14017415 Cobalt sulfamate...........
Coumaphos.......................... 56724 Co-Ral.....................
Cresol............................. 1319773 Cresylic acid.............. m-.................... 108394
Hydroxytoluene............. o-.................... 95487
p-.................... 106445
Crotonaldehyde..................... 4170303 2-butenal propylene
aldelhyde.
Cupric acetate..................... 142712 Copper acetate, crystalized
verdigris.
Cupric acetoarsenite............... 12002038 Copper acetoarsenite,
copper acetate arsenite,
Paris green.
Cupric chloride.................... 7447394 Copper chloride............
Cupric nitrate..................... 3251238 Copper nitrate.............
Cupric oxalate..................... 5893663 Copper oxalate.............
Cupric sulfate..................... 7758987 Copper sulfate.............
Cupric sulfate, ammoniated......... 10380297 Ammoniated copper sulfate..
Cupric tartrate.................... 815827 Copper tartrate............
Cyanogen chloride.................. 506774
Cyclohexane........................ 110827 Hexahydrobenzene,
hexamethylene,
hexanaphthene.
2,4-D acid......................... 94757 2,4-dichlorophenoxyacetic
acid.
2,4-D ester........................ 94111 2,4-dichlorophenoxyacetic
acid ester.
94791
94804
1320189
1928387
1928616
1929733
2971382
25168267
53467111
DDT................................ 50293 p,p'-DDT...................
Diazinon........................... 333415 Dipofene, Diazitol,
Basudin, Spectracide.
Dicamba............................ 1918009 2-methoxy-3,6-
dichlorobenzoic acid.
Dichlobenil........................ 1194656 2,6-dichlorobenzonitrile,
2,6-DBN.
Dichlone........................... 117806 Phygon,
dichloronaphthoquinone.
Dichlorobenzene.................... 25321226 Di-chloricide.............. Ortho................. 95501
Paramoth (Para)............ Para.................. 106467
Dichloropropane.................... 26638197 Propylene dichloride....... 1,1................... 78999
1,2................... 78875
1,3................... 142289
Dichloropropene.................... 26952238 ........................... 1,3................... 542756
2,3................... 78886
Dichloropropene-dichloropropane 8003198 D-D mixture Vidden D.......
(mixture).
2,2-Dichloropropionic acid......... 75990 Dalapon....................
Dichlorvos......................... 62737 2,2-dichlorovinyl dimethyl
phosphate, Vapona.
Dicofol............................ 115322 Di(p-chlorophenyl)-
trichloromethylcarbinol,
DTMC, dicofol.
Dieldrin........................... 60571 Alvit......................
Diethylamine....................... 109897
Dimethylamine...................... 124403
Dinitrobenzene (mixed)............. 25154545 Dinitrobenzol.............. m-.................... 99650
o-.................... 528290
p-.................... 100254
[[Page 147]]
Dinitrophenol...................... 51285 Aldifen.................... (2,5-)................ 329715
(2,4-)................
(2,6-)................ 573568
Dinitrotoluene..................... 25321146 DNT........................ 2,4................... 121142
2,6................... 606202
3,4................... 610399
Diquat............................. 85007 Aquacide...................
2764729 Dextrone, Reglone, Diquat
dibromide.
Disulfoton......................... 298044 Di-syston..................
Diuron............................. 330541 DCMU, DMU..................
Dodecylbenzenesulfonic acid........ 27176870
Endosulfan......................... 115297 Thiodan....................
Endrin............................. 72208 Mendrin, Compound 269......
Epichlorohydrin.................... 106898 -chloropropylene oxide.....
Ethion............................. 563122 Nialate, ethyl methylene,
phosphorodithioate.
Ethylbenzene....................... 100414 Phenylethane...............
Ethylenediamine.................... 107153 1,2-diaminoethane..........
Ethylenediamine-tetraacetic acid 60004 Edetic acid, Havidote,
(EDTA). (ethylenedinitrilo)-
tetraacetic acid.
Ethylene dibromide................. 106934 1,2-dibromoethane acetylene
dibromide sym-
dibromoethylene.
Ethylene dichloride................ 107062 1,2-dichloroethane sym-
bichloroethane.
Ferric ammonium citrate............ 1185575 Ammonium ferric citrate....
Ferric ammonium oxalate............ 2944674 Ammonium ferric oxalate....
55488874
Ferric chloride.................... 7705080 Flores martis, iron
trichloride.
Ferric fluoride.................... 7783508
Ferric nitrate..................... 10421484 Iron nitrate...............
Ferric sulfate..................... 10028225 Ferric persulfate, ferric
sesquisulfate, ferric
tersulfate.
Ferrous ammonium sulfate........... 10045893 Mohr's salt, iron ammonium
sulfate.
Ferrous chloride................... 7758943 Iron chloride, iron
dichloride, iron
protochloride.
Ferrous sulfate.................... 7720787 Green vitriol..............
7782630 Iron vitriol, iron sulfate,
iron protosulfate.
Formaldehyde....................... 50000 Methyl aldehyde, methanal,
formalin.
Formic acid........................ 64186 Methanoic acid.............
Fumaric acid....................... 110178 Trans-butenedioic acid,
trans-1,2-
ethylenedicarboxylic acid,
boletic acid, allomaleic
acid.
Furfural........................... 98011 2-furaldehyde, pyromucic
aldehyde.
Guthion............................ 86500 Gusathion, azinphos-methyl.
Heptachlor......................... 76448 Velsicol-104, Drinox,
Heptagran.
Hexachlorocyclopentadiene.......... 77474 Perchlorocyclopentadiene...
Hydrochloric acid.................. 7647010 Hydrogen chloride, muriatic
acid.
Hydrofluoric acid.................. 7664393 Fluohydric acid............
Hydrogen cyanide................... 74908 Hydrocyanic acid...........
Hydrogen sulfide................... 7783064 Hydrosulfuric acid sulfur
hydride.
Isoprene........................... 78795 2-methyl-1,3-butadiene.....
Isopropanolamine 42504461
dodecylbenzenesulfonate.
Kepone............................. 143500 Chlordecone
1,1a,3,3a,4,5,5,5a,5b,6-
decachlorooctahydro-1,3,4-
metheno-2H-
cyclobuta(cd)pentalen-2-
one.
Lead acetate....................... 301042 Sugar of lead..............
Lead arsenate...................... 7784409
7645252
10102484
Lead chloride...................... 7758954
Lead fluoborate.................... 13814965 Lead fluoroborate..........
Lead fluoride...................... 7783462 Lead difluoride, plumbous
fluoride.
Lead iodide........................ 10101630
Lead nitrate....................... 10099748
Lead stearate...................... 7428480 Stearic acid lead salt.....
1072351
52652592
Lead sulfate....................... 7446142
Lead sulfide....................... 1314870 Galena.....................
Lead thiocyanate................... 592870 Lead sulfocyanate..........
Lindane............................ 58899 Gamma-BHC, gamma-benzene
hexachloride.
Lithium chromate................... 14307358
Malathion.......................... 121755 Phospothion................
Maleic acid........................ 110167 Cis-butenedioic acid, cis-
1,2-ethylenedicarboxylic
acid, toxilic acid.
[[Page 148]]
Maleic anhydride................... 108316 2,5-furandione, cis-
butenedioic anhydride,
toxilic anhydride.
Mercaptodimethur................... 203657 Mesurol....................
Mercuric cyanide................... 592041 Mercury cyanide............
Mercuric nitrate................... 10045940 Mercury nitrate, mercury
pernitrate.
Mercuric sulfate................... 7783359 Mercury sulfate, mercury
persulfate.
Mercuric thiocyanate............... 592858 Mercury thiocyanate,
mercuric sulfocyanate,
mercuric sulfocyanide.
Mercurous nitrate.................. 7782867
10415755 Mercury protonitrate.......
Methoxychlor....................... 72435 DMDT, methoxy-DDT..........
Methyl mercaptan................... 74931 Methanethiol,
mercaptomethane, methyl
sulfhydrate, thiomethyl
alcohol.
Methyl methacrylate................ 80626 Methacrylic acid methyl
ester, methyl-2-methyl-2-
propenoate.
Methyl parathion................... 298000 Nitrox-80..................
Mevinphos.......................... 7786347 Phosdrin...................
Mexacarbate........................ 315184 Zectran....................
Monoethylamine..................... 75047 Ethylamine, aminoethane....
Monomethylamine.................... 74895 Methylamine, aminomethane..
Naled.............................. 300765 Dibrom.....................
Naphthalene........................ 91203 White tar, tar camphor,
naphthalin.
Naphthenic acid.................... 1338245 Cyclohexanecarboxylic acid,
hexahydrobenzoic acid.
Nickel ammonium sulfate............ 15699180 Ammonium nickel sulfate....
Nickel chloride.................... 37211055 Nickelous chloride.........
7718549
Nickel hydroxide................... 12054487 Nickelous hydroxide........
Nickel nitrate..................... 14216752
Nickel sulfate..................... 7786814 Nickelous sulfate..........
Nitric acid........................ 7697372 Aqua fortis................
Nitrobenzene....................... 98953 Nitrobenzol, oil of mirbane
Nitrogen dioxide................... 10102440 Nitrogen tetraoxide........
Nitrophenol (mixed)................ 25154556 Mononitrophenol............ m-.................... 554847
o-.................... 88755
p-.................... 100027
Nitrotoluene....................... 1321126 ........................... Ortho................. 88722
Meta.................. 99081
Para.................. 99990
Paraformaldehyde................... 30525894 Paraform, Formagene,
Triformol, polymerized
formaldehyde,
polyoxymethylene.
Parathion.......................... 56382 DNTP, Niran................
Pentachlorophenol.................. 87865 PCP, Penta.................
Phenol............................. 108952 Carbolic acid, phenyl
hydroxide, hydroxybenzene,
oxybenzene.
Phosgene........................... 75445 Diphosgene, carbonyl
chloride, chloroformyl
chloride.
Phosphoric acid.................... 7664382 Orthophosphoric acid.......
Phosphorus......................... 7723140 Black phosphorus, red
phosphorus, white
phosphorus, yellow
phosphorus.
Phosphorus oxychloride............. 10025873 Phosphoryl chloride,
phosphorus chloride.
Phosphorus pentasulfide............ 1314803 Phosphoric sulfide,
thiophosphoric anhydride,
phosphorus persulfide.
Phosphorus trichloride............. 7719122 Phosphorous chloride.......
Polychorinated biphenyls........... 1336363 PCB, Aroclor,
polychlorinated diphenyls.
Potassium arsenate................. 7784410
Potassium arsenite................. 10124502 Potassium metaarsenite.....
Potassium bichromate............... 7778509 Potassium dichromate.......
Potassium chromate................. 7789006
Potassium cyanide.................. 151508
Potassium hydroxide................ 1310583 Potassium hydrate, caustic
potash, potassa.
Potassium permanganate............. 7722647 Chameleon mineral..........
Propargite......................... 2312358 Omite......................
Propionic acid..................... 79094 Propanoic acid,
methylacetic acid,
ethylformic acid.
Propionic anhydride................ 123626 Propanoic anhydride,
methylacetic anhydride.
Propylene oxide.................... 75569 Propene oxide..............
Pyrethrins......................... 121299 Pyrethrin I................
121211 Pyrethrin II...............
Quinoline.......................... 91225 1-benzazine,
benzo(b)pyridine,
leuocoline, chinoleine,
leucol.
Resorcinol......................... 108463 Resorcin, 1,3-benzenediol,
meta-dihydroxybenzene.
[[Page 149]]
Selenium oxide..................... 7446084 Selenium dioxide...........
Silver nitrate..................... 7761888 Nitric acid silver (1 + )
salt lunar caustic.
Sodium............................. 7440235 Natrium....................
Sodium arsenate.................... 7631892 Disodium arsenate..........
Sodium arsenite.................... 7784465 Sodium metaarsenite........
Sodium bichromate.................. 10588019 Sodium dichromate..........
Sodium bifluoride.................. 1333831
Sodium bisulfite................... 7631905 Sodium acid sulfite, sodium
hydrogen sulfite.
Sodium chromate.................... 7775113
Sodium cyanide..................... 143339
Sodium dodecylbenzene-sulfonate.... 25155300
Sodium fluoride.................... 7681494 Villiaumite................
Sodium hydrosulfide................ 16721805 Sodium hydrogen sulfide....
Sodium hydroxide................... 1310732 Caustic soda, soda lye,
sodium hydrate.
Sodium hypochlorite................ 7681529 Bleach.....................
10022705
Sodium methylate................... 124414 Sodium methoxide...........
Sodium nitrite..................... 7632000
Sodium phosphate, dibasic.......... 7558794
10039324
10140655
Sodium phosphate, tribasic......... 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 (2,3,4-).............. 15950660
2S, Omal, Phenachlor. (2,3,5-).............. 933788
(2,3,6-).............. 933755
(2,4,5-).............. 95954
(2,4,6-).............. 88062
(3,4,5-).............. 609198
Triethanolamine 27323417
dodecylbenzenesulfonate.
Triethylamine...................... 121448
Trimethylamine..................... 75503 TMA........................
[[Page 150]]
Uranyl acetate..................... 541093
Uranyl nitrate..................... 10102064
36478769
Vanadium pentoxide................. 1314621 Vanadic anhydride, vanadic
acid anhydride.
Vanadyl sulfate.................... 27774136 Vanadic sulfate, vanadium
sulfate.
Vinyl acetate...................... 108054 Acetic acid ethylene ether.
Vinylidene chloride................ 75354 1,1-dichlorethylene........
1,1-dichloroethene.........
Xylene (mixed)..................... 1330207 Dimethylbenzene............ m-.................... 108383
Xylol...................... o-.................... 95476
p-.................... 106423
Xylenol............................ 1300716 Dimethylphenol,
hydroxydimethylbenzene.
Zinc acetate....................... 557346
Zinc ammonium chloride............. 14639975
14639986
52628258
Zinc borate........................ 1332076
Zinc bromide....................... 7699458
Zinc carbonate..................... 3486359
Zinc chloride...................... 7646857 Butter of zinc.............
Zinc cyanide....................... 557211
Zinc fluoride...................... 7783495
Zinc formate....................... 557415
Zinc hydrosulfite.................. 7779864
Zinc nitrate....................... 7779886
Zinc phenolsulfonate............... 127822 Zinc sulfocarbolate........
Zinc phosphide..................... 1314847
Zinc silicofluoride................ 16871719 Zinc fluosilicate..........
Zinc sulfate....................... 7733020 White vitriol, zinc
vitriol, white copperas.
Zirconium nitrate.................. 13746899
Zirconium potassium fluoride....... 16923958
Zirconium sulfate.................. 14644612 Disulfatozirconic acid.....
Zirconium tetrachloride............ 10026116 ........................... ...................... ..........
----------------------------------------------------------------------------------------------------------------
Table 116.4B--List of Hazardous Substances by CAS Number
------------------------------------------------------------------------
CAS No. Common name
------------------------------------------------------------------------
50000............................... Formaldehyde
50293............................... DDT
51285............................... 2,4-Dinitrophenol
52686............................... Trichlorfon
56382............................... Parathion
56724............................... Coumaphos
57249............................... Strychnine
57749............................... Chlordane
58899............................... Lindane
60004............................... Ethylenediaminetetraacetic
acid (EDTA)
60571............................... Dieldrin
62533............................... Aniline
62737............................... Dichlorvos
63252............................... Carbaryl
64186............................... Formic acid
64197............................... Acetic acid
65850............................... Benzoic acid
67663............................... Chloroform
71432............................... Benzene
72208............................... Endrin
72435............................... Methoxychlor
72548............................... TDE
74895............................... Monomethylamine
74908............................... Hydrogen cyanide
74931............................... Methyl mercaptan
75047............................... Monoethylamine
75070............................... Acetaldehyde
75150............................... Carbon disulfide
75207............................... Calcium carbide
75445............................... Phosgene
75503............................... Trimethylamine
75649............................... tert-Butylamine
75865............................... Acetone cyanohydrin
75990............................... 2,2-Dichloropropionic acid
76448............................... Heptachlor
78002............................... Tetraethyl lead
78795............................... Isoprene
78819............................... iso-Butylamine
79094............................... Propionic acid
79312............................... iso-Butyric acid
79367............................... Acetyl chloride
80626............................... Methyl methacrylate
85007............................... Diquat
86500............................... Guthion
87865............................... Pentachlorophenol
88755............................... o-Nitrophenol
91203............................... Naphthalene
91225............................... Quinoline
93765............................... 2,4,5-T acid
93798............................... 2,4,5-T ester
94111............................... 2,4-D ester
94757............................... 2,4-D acid
94791............................... 2,4-D ester
94804............................... 2,4-D Butyl ester
95476............................... o-Xylene
95487............................... o-Cresol
98011............................... Furfural
98884............................... Benzoyl chloride
98953............................... Nitrobenzene
99650............................... m-Dinitrobenzene
100027.............................. p-Nitrophenol
100254.............................. p-Dinitrobenzene
100414.............................. Ethylbenzene
[[Page 151]]
100425.............................. Styrene
100447.............................. Benzyl chloride
100470.............................. Benzonitrile
105464.............................. sec-Butyl acetate
106423.............................. p-Xylene
106445.............................. p-Cresol
107028.............................. Acrolein
107051.............................. Allyl chloride
107131.............................. Acrylonitrile
107153.............................. Ethylenediamine
107186.............................. Allyl alcohol
107493.............................. Tetraethyl pyrophosphate
107926.............................. n-Butyric acid
108054.............................. Vinyl acetate
108247.............................. Acetic anhydride
108316.............................. Maleic anhydride
108383.............................. m-Xylene
108394.............................. m-Cresol
108463.............................. Resorcinol
108883.............................. Toluene
108907.............................. Chlorobenzene
108952.............................. Phenol
109739.............................. n-Butylamine
109897.............................. Diethylamine
110167.............................. Maleic acid
110178.............................. Fumaric acid
110190.............................. iso-Butyl acetate
110827.............................. Cyclohexane
115297.............................. Endosulfan
115322.............................. Dicofol
117806.............................. Dichlone
121211.............................. Pyrethrin
121299.............................. Pyrethrin
121448.............................. Triethylamine
121755.............................. Malathion
123626.............................. Propionic anhydride
123864.............................. n-Butyl acetate
123922.............................. iso-Amyl acetate
124403.............................. Dimethylamine
124414.............................. Sodium methylate
127822.............................. Zinc phenolsulfonate
133062.............................. Captan
142712.............................. Cupric acetate
143339.............................. Sodium cyanide
151508.............................. Potassium cyanide
298000.............................. Methyl parathion
298044.............................. Disulfoton
300765.............................. Naled
301042.............................. Lead acetate
309002.............................. Aldrin
315184.............................. Mexacarbate
329715.............................. 2,5-Dinitrophenol
330541.............................. Diuron
333415.............................. Diazinon
506774.............................. Cyanogen chloride
506876.............................. Ammonium carbonate
506967.............................. Acetyl bromide
513495.............................. sec-Butylamine
528290.............................. o-Dinitrobenzene
540885.............................. tert-Butyl acetate
541093.............................. Uranyl acetate
542621.............................. Barium cyanide
543908.............................. Cadmium acetate
544183.............................. Cobaltous formate
554847.............................. m-Nitrophenol
557211.............................. Zinc cyanide
557346.............................. Zinc acetate
557415.............................. Zinc formate
563122.............................. Ethion
573568.............................. 2,6-Dinitrophenol
592018.............................. Calcium cyanide
592041.............................. Mercuric cyanide
592858.............................. Mercuric thiocyanate
592870.............................. Lead thiocyanate
625161.............................. tert-Amyl acetate
626380.............................. sec-Amyl acetate
628637.............................. n-Amyl acetate
631618.............................. Ammonium acetate
815827.............................. Cupric tartrate
1066304............................. Chromic acetate
1066337............................. Ammonium bicarbonate
1072351............................. Lead stearate
1111780............................. Ammonium carbamate
1185575............................. Ferric ammonium citrate
1194656............................. Dichlobenil
1300716............................. Xylenol
1303282............................. Arsenic pentoxide
1303328............................. Arsenic disulfide
1303339............................. Arsenic trisulfide
1309644............................. Antimony trioxide
1310583............................. Potassium hydroxide
1310732............................. Sodium hydroxide
1314621............................. Vanadium pentoxide
1314803............................. Phosphorus pentasulfide
1314847............................. Zinc phosphide
1314870............................. Lead sulfide
1319773............................. Cresol (mixed)
1320189............................. 2,4-D ester
1327533............................. Arsenic trioxide
1330207............................. Xylene
1332076............................. Zinc borate
1333831............................. Sodium bifluoride
1336216............................. Ammonium hydroxide
1336363............................. Polychlorinated biphenyls
1338245............................. Naphthenic acid
1341497............................. Ammonium bifluoride
1762954............................. Ammonium thiocyanate
1863634............................. Ammonium benzoate
1918009............................. Dicamba
1928387............................. 2,4-D esters
1928478............................. 2,4,5-T ester
1928616............................. 2,4-D ester
1929733............................. 2,4-D ester
2545597............................. 2,4,5-T ester
2764729............................. Diquat
2921882............................. Chlorpyrifos
2944674............................. Ferric ammonium oxalate
2971382............................. 2,4-D ester
3012655............................. Ammonium citrate, dibasic
3164292............................. Ammonium tartrate
3251238............................. Cupric nitrate
3486359............................. Zinc carbonate
5893663............................. Cupric oxalate
5972736............................. Ammonium oxalate
6009707............................. Ammonium oxalate
6369966............................. 2,4,5-T ester
7428480............................. Lead stearate
7440235............................. Sodium
7446084............................. Selenium oxide
7446142............................. Lead sulfate
7447394............................. Cupric chloride
7558794............................. Sodium phosphate, dibasic
7601549............................. Sodium phosphate, tribasic
7631892............................. Sodium arsenate
7631905............................. Sodium bisulfite
7632000............................. Sodium nitrite
7645252............................. Lead arsenate
7646857............................. Zinc chloride
7647010............................. Hydrochloric acid
7647189............................. Antimony pentachloride
7664382............................. Phosphoric acid
7664393............................. Hydrofluoric acid
[[Page 152]]
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
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
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]
[[Page 153]]
PART 117_DETERMINATION OF REPORTABLE QUANTITIES FOR HAZARDOUS
SUBSTANCES--Table of Contents
Subpart A_General Provisions
Sec.
117.1 Definitions.
117.2 Abbreviations.
117.3 Determination of reportable quantities.
Subpart B_Applicability
117.11 General applicability.
117.12 Applicability to discharges from facilities with NPDES permits.
117.13 Applicability to discharges from publicly owned treatment works
and their users.
117.14 Demonstration projects.
Subpart C_Notice of Discharge of a Reportable Quantity
117.21 Notice.
117.23 Liabilities for removal.
Authority: 33 U.S.C. 1251 et seq. and Executive Order 11735,
superseded by Executive Order 12777, 56 FR 54757.
Source: 44 FR 50776, Aug. 29, 1979, unless otherwise noted.
Subpart A_General Provisions
Sec. 117.1 Definitions.
As used in this part, all terms shall have the meanings stated in 40
CFR part 116.
(a) Reportable quantities means quantities that may be harmful as
set forth in Sec. 117.3, the discharge of which is a violation of
section 311(b)(3) and requires notice as set forth in Sec. 117.21.
(b) Administrator means the Administrator of the Environmental
Protection Agency (``EPA'').
(c) Mobile source means any vehicle, rolling stock, or other means
of transportation which contains or carries a reportable quantity of a
hazardous substance.
(d) Public record means the NPDES permit application or the NPDES
permit itself and the materials comprising the administrative record for
the permit decision specified in Sec. 124.18 of this chapter.
(e) National Pretreatment Standard or Pretreatment Standard means
any regulation containing pollutant discharge limits promulgated by the
EPA in accordance with section 307 (b) and (c) of the Act, which applies
to industrial users of a publicly owned treatment works. It further
means any State or local pretreatment requirement applicable to a
discharge and which is incorporated into a permit issued to a publicly
owned treatment works under section 402 of the Act.
(f) Publicly Owned Treatment Works or POTW means a treatment works
as defined by section 212 of the Act, which is owned by a State or
municipality (as defined by section 502(4) of the Act). This definition
includes any sewers that convey wastewater to such a treatment works,
but does not include pipes, sewers or other conveyances not connected to
a facility providing treatment. The term also means the municipality as
defined in section 502(4) of the Act, which has jurisdiction over the
indirect discharges to and the discharges from such a treatment works.
(g) Remove or removal refers to removal of the oil or hazardous
substances from the water and shoreline or the taking of such other
actions as may be necessary to minimize or mitigate damage to the public
health or welfare, including, but not limited to, fish, shellfish,
wildlife, and public and private property, shorelines, and beaches.
(h) Contiguous zone means the entire zone established by the United
States under Article 24 of the Convention on the Territorial Sea and
Contiguous Zone.
(i) Navigable waters is defined in section 502(7) of the Act to mean
``waters of the United States, including the territorial seas.''
(1) For purposes of the Clean Water Act, 33 U.S.C. 1251 et seq. and
its implementing regulations, subject to the exclusions in paragraph
(i)(2) of this section, the term ``waters of the United States'' means:
(i) All waters which are currently used, were used in the past, or
may be susceptible to use in interstate or foreign commerce, including
all waters which are subject to the ebb and flow of the tide;
(ii) All interstate waters, including interstate wetlands;
(iii) The territorial seas;
[[Page 154]]
(iv) All impoundments of waters otherwise identified as waters of
the United States under this section;
(v) All tributaries, as defined in paragraph (i)(3)(iii) of this
section, of waters identified in paragraphs (i)(1)(i) through (iii) of
this section;
(vi) All waters adjacent to a water identified in paragraphs
(i)(1)(i) through (v) of this section, including wetlands, ponds, lakes,
oxbows, impoundments, and similar waters;
(vii) All waters in paragraphs (i)(1)(vii)(A) through (E) of this
section where they are determined, on a case-specific basis, to have a
significant nexus to a water identified in paragraphs (i)(1)(i) through
(iii) of this section. The waters identified in each of paragraphs
(i)(1)(vii)(A) through (E) of this section are similarly situated and
shall be combined, for purposes of a significant nexus analysis, in the
watershed that drains to the nearest water identified in paragraphs
(i)(1)(i) through (iii) of this section. Waters identified in this
paragraph shall not be combined with waters identified in paragraph
(i)(1)(vi) of this section when performing a significant nexus analysis.
If waters identified in this paragraph are also an adjacent water under
paragraph (i)(1)(vi), they are an adjacent water and no case-specific
significant nexus analysis is required.
(A) Prairie potholes. Prairie potholes are a complex of glacially
formed wetlands, usually occurring in depressions that lack permanent
natural outlets, located in the upper Midwest.
(B) Carolina bays and Delmarva bays. Carolina bays and Delmarva bays
are ponded, depressional wetlands that occur along the Atlantic coastal
plain.
(C) Pocosins. Pocosins are evergreen shrub and tree dominated
wetlands found predominantly along the Central Atlantic coastal plain.
(D) Western vernal pools. Western vernal pools are seasonal wetlands
located in parts of California and associated with topographic
depression, soils with poor drainage, mild, wet winters and hot, dry
summers.
(E) Texas coastal prairie wetlands. Texas coastal prairie wetlands
are freshwater wetlands that occur as a mosaic of depressions, ridges,
intermound flats, and mima mound wetlands located along the Texas Gulf
Coast.
(viii) All waters located within the 100-year floodplain of a water
identified in (i)(1)(i) through (iii) of this section and all waters
located within 4,000 feet of the high tide line or ordinary high water
mark of a water identified in paragraphs (i)(1)(i) through (v) of this
section where they are determined on a case-specific basis to have a
significant nexus to a water identified in paragraphs (i)(1)(i) through
(iii) of this section. For waters determined to have a significant
nexus, the entire water is a water of the United States if a portion is
located within the 100-year floodplain of a water identified in
paragraphs (i)(1)(i) through (iii) of this section or within 4,000 feet
of the high tide line or ordinary high water mark. Waters identified in
this paragraph shall not be combined with waters identified in paragraph
(i)(1)(vi) of this section when performing a significant nexus analysis.
If waters identified in this paragraph are also an adjacent water under
paragraph (i)(1)(vi), they are an adjacent water and no case-specific
significant nexus analysis is required.
(2) The following are not ``waters of the United States'' even where
they otherwise meet the terms of paragraphs (i)(1)(iv) through (viii) of
this section.
(i) Waste treatment systems, (other than cooling ponds meeting the
criteria of this paragraph) are not waters of the United States.
(ii) Prior converted cropland. Notwithstanding the determination of
an area's status as prior converted cropland by any other Federal
agency, for the purposes of the Clean Water Act, the final authority
regarding Clean Water Act jurisdiction remains with EPA.
(iii) The following ditches:
(A) Ditches with ephemeral flow that are not a relocated tributary
or excavated in a tributary.
(B) Ditches with intermittent flow that are not a relocated
tributary, excavated in a tributary, or drain wetlands.
(C) Ditches that do not flow, either directly or through another
water, into
[[Page 155]]
a water identified in paragraphs (i)(1)(i) through (iii) of this
section.
(iv) The following features:
(A) Artificially irrigated areas that would revert to dry land
should application of water to that area cease;
(B) Artificial, constructed lakes and ponds created in dry land such
as farm and stock watering ponds, irrigation ponds, settling basins,
fields flooded for rice growing, log cleaning ponds, or cooling ponds;
(C) Artificial reflecting pools or swimming pools created in dry
land;
(D) Small ornamental waters created in dry land;
(E) Water-filled depressions created in dry land incidental to
mining or construction activity, including pits excavated for obtaining
fill, sand, or gravel that fill with water;
(F) Erosional features, including gullies, rills, and other
ephemeral features that do not meet the definition of tributary, non-
wetland swales, and lawfully constructed grassed waterways; and
(G) Puddles.
(v) Groundwater, including groundwater drained through subsurface
drainage systems.
(vi) Stormwater control features constructed to convey, treat, or
store stormwater that are created in dry land.
(vii) Wastewater recycling structures constructed in dry land;
detention and retention basins built for wastewater recycling;
groundwater recharge basins; percolation ponds built for wastewater
recycling; and water distributary structures built for wastewater
recycling.
(3) In this paragraph, the following terms apply:
(i) Adjacent. The term adjacent means bordering, contiguous, or
neighboring a water identified in paragraphs (i)(1)(i) through (v) of
this section, including waters separated by constructed dikes or
barriers, natural river berms, beach dunes, and the like. For purposes
of adjacency, an open water such as a pond or lake includes any wetlands
within or abutting its ordinary high water mark. Adjacency is not
limited to waters located laterally to a water identified in paragraphs
(i)(1)(i) through (v) of this section. Adjacent waters also include all
waters that connect segments of a water identified in paragraphs
(i)(1)(i) through (v) or are located at the head of a water identified
in paragraphs (i)(1)(i) through (v) of this section and are bordering,
contiguous, or neighboring such water. Waters being used for established
normal farming, ranching, and silviculture activities (33 U.S.C.
1344(f)) are not adjacent.
(ii) Neighboring. The term neighboring means:
(A) All waters located within 100 feet of the ordinary high water
mark of a water identified in paragraphs (i)(1)(i) through (v) of this
section. The entire water is neighboring if a portion is located within
100 feet of the ordinary high water mark;
(B) All waters located within the 100-year floodplain of a water
identified in paragraphs (i)(1)(i) through (v) of this section and not
more than 1,500 feet from the ordinary high water mark of such water.
The entire water is neighboring if a portion is located within 1,500
feet of the ordinary high water mark and within the 100-year floodplain;
(C) All waters located within 1,500 feet of the high tide line of a
water identified in paragraphs (i)(1)(i) or (iii) of this section, and
all waters within 1,500 feet of the ordinary high water mark of the
Great Lakes. The entire water is neighboring if a portion is located
within 1,500 feet of the high tide line or within 1,500 feet of the
ordinary high water mark of the Great Lakes.
(iii) Tributary and tributaries. The terms tributary and tributaries
each mean a water that contributes flow, either directly or through
another water (including an impoundment identified in paragraph
(i)(1)(iv) of this section), to a water identified in paragraphs
(i)(1)(i) through (iii) of this section that is characterized by the
presence of the physical indicators of a bed and banks and an ordinary
high water mark. These physical indicators demonstrate there is volume,
frequency, and duration of flow sufficient to create a bed and banks and
an ordinary high water mark, and thus to qualify as a tributary. A
tributary can be a natural, man-altered, or man-made water and includes
waters such as rivers, streams, canals, and ditches not
[[Page 156]]
excluded under paragraph (i)(2) of this section. A water that otherwise
qualifies as a tributary under this definition does not lose its status
as a tributary if, for any length, there are one or more constructed
breaks (such as bridges, culverts, pipes, or dams), or one or more
natural breaks (such as wetlands along the run of a stream, debris
piles, boulder fields, or a stream that flows underground) so long as a
bed and banks and an ordinary high water mark can be identified upstream
of the break. A water that otherwise qualifies as a tributary under this
definition does not lose its status as a tributary if it contributes
flow through a water of the United States that does not meet the
definition of tributary or through a non-jurisdictional water to a water
identified in paragraphs (i)(1)(i) through (iii) of this section.
(iv) Wetlands. The term wetlands means those areas that are
inundated or saturated by surface or groundwater at a frequency and
duration sufficient to support, and that under normal circumstances do
support, a prevalence of vegetation typically adapted for life in
saturated soil conditions. Wetlands generally include swamps, marshes,
bogs, and similar areas.
(v) Significant nexus. The term significant nexus means that a
water, including wetlands, either alone or in combination with other
similarly situated waters in the region, significantly affects the
chemical, physical, or biological integrity of a water identified in
paragraphs (i)(1)(i) through (iii) of this section. The term ``in the
region'' means the watershed that drains to the nearest water identified
in paragraphs (i)(1)(i) through (iii) of this section. For an effect to
be significant, it must be more than speculative or insubstantial.
Waters are similarly situated when they function alike and are
sufficiently close to function together in affecting downstream waters.
For purposes of determining whether or not a water has a significant
nexus, the water's effect on downstream (i)(1)(i) through (iii) waters
shall be assessed by evaluating the aquatic functions identified in
paragraphs (i)(3)(v)(A) through (I) of this section. A water has a
significant nexus when any single function or combination of functions
performed by the water, alone or together with similarly situated waters
in the region, contributes significantly to the chemical, physical, or
biological integrity of the nearest water identified in paragraphs
(i)(1)(i) through (iii) of this section. Functions relevant to the
significant nexus evaluation are the following:
(A) Sediment trapping,
(B) Nutrient recycling,
(C) Pollutant trapping, transformation, filtering, and transport,
(D) Retention and attenuation of flood waters,
(E) Runoff storage,
(F) Contribution of flow,
(G) Export of organic matter,
(H) Export of food resources, and
(I) Provision of life cycle dependent aquatic habitat (such as
foraging, feeding, nesting, breeding, spawning, or use as a nursery
area) for species located in a water identified in paragraphs (i)(1)(i)
through (iii) of this section.
(vi) Ordinary high water mark. The term ordinary high water mark
means that line on the shore established by the fluctuations of water
and indicated by physical characteristics such as a clear, natural line
impressed on the bank, shelving, changes in the character of soil,
destruction of terrestrial vegetation, the presence of litter and
debris, or other appropriate means that consider the characteristics of
the surrounding areas.
(vii) High tide line. The term high tide line means the line of
intersection of the land with the water's surface at the maximum height
reached by a rising tide. The high tide line may be determined, in the
absence of actual data, by a line of oil or scum along shore objects, a
more or less continuous deposit of fine shell or debris on the foreshore
or berm, other physical markings or characteristics, vegetation lines,
tidal gages, or other suitable means that delineate the general height
reached by a rising tide. The line encompasses spring high tides and
other high tides that occur with periodic frequency but does not include
storm surges in which there is a departure from the normal or predicted
reach of the tide due to the piling up of water against a coast by
strong winds such as those accompanying a hurricane or other intense
storm.
[[Page 157]]
(4) Applicability date. This paragraph (i) is applicable beginning
on February 6, 2020.
(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; 80 FR 37112, June 29, 2015; 83 FR 5208, Feb.
6, 2018]
Sec. 117.2 Abbreviations.
NPDES equals National Pollutant Discharge Elimination System. RQ
equals reportable quantity.
Sec. 117.3 Determination of reportable quantities.
Each substance in Table 117.3 that is listed in Table 302.4, 40 CFR
part 302, is assigned the reportable quantity listed in Table 302.4 for
that substance.
Table 117.3--Reportable Quantities of Hazardous Substances Designated
Pursuant to Section 311 of the Clean Water Act
Note: The first number under the column headed ``RQ'' is the
reportable quantity in pounds. The number in parentheses is the metric
equivalent in kilograms. For convenience, the table contains a column
headed ``Category'' which lists the code letters ``X'', ``A'', ``B'',
``C'', and ``D'' associated with reportable quantities of 1, 10, 100,
1000, and 5000 pounds, respectively.
Table 117.3--Reportable Quantities of Hazardous Substances Designated
Pursuant to Section 311 of the Clean Water Act
------------------------------------------------------------------------
RQ in pounds
Material Category (kilograms)
------------------------------------------------------------------------
Acetaldehyde.................... C................. 1,000 (454)
Acetic acid..................... D................. 5,000 (2,270)
Acetic anhydride................ D................. 5,000 (2,270)
Acetone cyanohydrin............. A................. 10 (4.54)
Acetyl bromide.................. D................. 5,000 (2,270)
Acetyl chloride................. D................. 5,000 (2,270)
Acrolein........................ X................. 1 (0.454)
Acrylonitrile................... B................. 100 (45.4)
Adipic acid..................... D................. 5,000 (2,270)
Aldrin.......................... X................. 1 (0.454)
Allyl alcohol................... B................. 100 (45.4)
Allyl chloride.................. C................. 1,000 (454)
Aluminum sulfate................ D................. 5,000 (2,270)
Ammonia......................... B................. 100 (45.4)
Ammonium acetate................ D................. 5,000 (2,270)
Ammonium benzoate............... D................. 5,000 (2,270)
Ammonium bicarbonate............ D................. 5,000 (2,270)
Ammonium bichromate............. A................. 10 (4.54)
Ammonium bifluoride............. B................. 100 (45.4)
Ammonium bisulfite.............. D................. 5,000 (2,270)
Ammonium carbamate.............. D................. 5,000 (2,270)
Ammonium carbonate.............. D................. 5,000 (2,270)
Ammonium chloride............... D................. 5,000 (2,270)
Ammonium chromate............... A................. 10 (4.54)
Ammonium citrate dibasic........ D................. 5,000 (2,270)
Ammonium fluoborate............. D................. 5,000 (2,270)
Ammonium fluoride............... B................. 100 (45.4)
Ammonium hydroxide.............. C................. 1,000 (454)
Ammonium oxalate................ D................. 5,000 (2,270)
Ammonium silicofluoride......... C................. 1,000 (454)
Ammonium sulfamate.............. D................. 5,000 (2,270)
Ammonium sulfide................ B................. 100 (45.4)
Ammonium sulfite................ D................. 5,000 (2,270)
Ammonium tartrate............... D................. 5,000 (2,270)
Ammonium thiocyanate............ D................. 5,000 (2,270)
Amyl acetate.................... D................. 5,000 (2,270)
Aniline......................... D................. 5,000 (2,270)
Antimony pentachloride.......... C................. 1,000 (454)
Antimony potassium tartrate..... B................. 100 (45.4)
Antimony tribromide............. C................. 1,000 (454)
Antimony trichloride............ C................. 1,000 (454)
Antimony trifluoride............ C................. 1,000 (454)
Antimony trioxide............... C................. 1,000 (454)
Arsenic disulfide............... X................. 1 (0.454)
Arsenic pentoxide............... X................. 1 (0.454)
Arsenic trichloride............. X................. 1 (0.454)
Arsenic trioxide................ X................. 1 (0.454)
Arsenic trisulfide.............. X................. 1 (0.454)
Barium cyanide.................. A................. 10 (4.54)
Benzene......................... A................. 10 (4.54)
Benzoic acid.................... D................. 5,000 (2,270)
Benzonitrile.................... D................. 5,000 (2,270)
Benzoyl chloride................ C................. 1,000 (454)
Benzyl chloride................. B................. 100 (45.4)
Beryllium chloride.............. X................. 1 (0.454)
Beryllium fluoride.............. X................. 1 (0.454)
Beryllium nitrate............... X................. 1 (0.454)
Butyl acetate................... D................. 5,000 (2,270)
Butylamine...................... C................. 1,000 (454)
n-Butyl phthalate............... A................. 10 (4.54)
Butyric acid.................... D................. 5,000 (2,270)
Cadmium acetate................. A................. 10 (4.54)
Cadmium bromide................. A................. 10 (4.54)
Cadmium chloride................ A................. 10 (4.54)
Calcium arsenate................ X................. 1 (0.454)
Calcium arsenite................ X................. 1 (0.454)
Calcium carbide................. A................. 10 (4.54)
Calcium chromate................ A................. 10 (4.54)
Calcium cyanide................. A................. 10 (4.54)
Calcium dodecylbenzenesulfonate. C................. 1,000 (454)
Calcium hypochlorite............ A................. 10 (4.54)
Captan.......................... A................. 10 (4.54)
Carbaryl........................ B................. 100 (45.4)
Carbofuran...................... A................. 10 (4.54)
Carbon disulfide................ B................. 100 (45.4)
Carbon tetrachloride............ A................. 10 (4.54)
Chlordane....................... X................. 1 (0.454)
Chlorine........................ A................. 10 (4.54)
Chlorobenzene................... B................. 100 (45.4)
Chloroform...................... A................. 10 (4.54)
Chlorosulfonic acid............. C................. 1,000 (454)
Chlorpyrifos.................... X................. 1 (0.454)
[[Page 158]]
Chromic acetate................. C................. 1,000 (454)
Chromic acid.................... A................. 10 (4.54)
Chromic sulfate................. C................. 1,000 (454)
Chromous chloride............... C................. 1,000 (454)
Cobaltous bromide............... C................. 1,000 (454)
Cobaltous formate............... C................. 1,000 (454)
Cobaltous sulfamate............. C................. 1,000 (454)
Coumaphos....................... A................. 10 (4.54)
Cresol.......................... B................. 100 (45.4)
Crotonaldehyde.................. B................. 100 (45.4)
Cupric acetate.................. B................. 100 (45.4)
Cupric acetoarsenite............ X................. 1 (0.454)
Cupric chloride................. A................. 10 (4.54)
Cupric nitrate.................. B................. 100 (45.4)
Cupric oxalate.................. B................. 100 (45.4)
Cupric sulfate.................. A................. 10 (4.54)
Cupric sulfate, ammoniated...... B................. 100 (45.4)
Cupric tartrate................. B................. 100 (45.4)
Cyanogen chloride............... A................. 10 (4.54)
Cyclohexane..................... C................. 1,000 (454)
2,4-D Acid...................... B................. 100 (45.4)
2,4-D Esters.................... B................. 100 (45.4)
DDT............................. X................. 1 (0.454)
Diazinon........................ X................. 1 (0.454)
Dicamba......................... C................. 1,000 (454)
Dichlobenil..................... B................. 100 (45.4)
Dichlone........................ X................. 1 (0.454)
Dichlorobenzene................. B................. 100 (45.4)
Dichloropropane................. C................. 1,000 (454)
Dichloropropene................. B................. 100 (45.4)
Dichloropropene-Dichloropropane B................. 100 (45.4)
(mixture).
2,2-Dichloropropionic acid...... D................. 5,000 (2,270)
Dichlorvos...................... A................. 10 (4.54)
Dicofol......................... A................. 10 (4.54)
Dieldrin........................ X................. 1 (0.454)
Diethylamine.................... B................. 100 (45.4)
Dimethylamine................... C................. 1,000 (454)
Dinitrobenzene (mixed).......... B................. 100 (45.4)
Dinitrophenol................... A................. 10 (45.4)
Dinitrotoluene.................. A................. 10 (4.54)
Diquat.......................... C................. 1,000 (454)
Disulfoton...................... X................. 1 (0.454)
Diuron.......................... B................. 100 (45.4)
Dodecylbenzenesulfonic acid..... C................. 1,000 (454)
Endosulfan...................... X................. 1 (0.454)
Endrin.......................... X................. 1 (0.454)
Epichlorohydrin................. B................. 100 (45.4)
Ethion.......................... A................. 10 (4.54)
Ethylbenzene.................... C................. 1,000 (454)
Ethylenediamine................. D................. 5,000 (2,270)
Ethylenediamine-tetraacetic acid D................. 5,000 (2,270)
(EDTA).
Ethylene dibromide.............. X................. 1 (0.454)
Ethylene dichloride............. B................. 100 (45.4)
Ferric ammonium citrate......... C................. 1,000 (454)
Ferric ammonium oxalate......... C................. 1,000 (454)
Ferric chloride................. C................. 1,000 (454)
Ferric fluoride................. B................. 100 (45.4)
Ferric nitrate.................. C................. 1,000 (454)
Ferric sulfate.................. C................. 1,000 (454)
Ferrous ammonium sulfate........ C................. 1,000 (454)
Ferrous chloride................ B................. 100 (45.4)
Ferrous sulfate................. C................. 1,000 (454)
Formaldehyde.................... B................. 100 (45.4)
Formic acid..................... D................. 5,000 (2,270)
Fumaric acid.................... D................. 5,000 (2,270)
Furfural........................ D................. 5,000 (2,270)
Guthion......................... X................. 1 (0.454)
Heptachlor...................... X................. 1 (0.454)
Hexachlorocyclopentadiene....... A................. 10 (4.54)
Hydrochloric acid............... D................. 5,000 (2,270)
Hydrofluoric acid............... B................. 100 (45.4)
Hydrogen cyanide................ A................. 10 (4.54)
Hydrogen sulfide................ B................. 100 (45.4)
Isoprene........................ B................. 100 (45.4)
Isopropanolamine C................. 1,000 (454)
dodecylbenzenesulfonate.
Kepone.......................... X................. 1 (0.454)
Lead acetate.................... A................. 10 (4.54)
Lead arsenate................... X................. 1 (0.454)
Lead chloride................... A................. 10 (4.54)
Lead fluoborate................. A................. 10 (4.54)
Lead fluoride................... A................. 10 (4.54)
Lead iodide..................... A................. 10 (4.54)
Lead nitrate.................... A................. 10 (4.54)
Lead stearate................... A................. 10 (4.54)
Lead sulfate.................... A................. 10 (4.54)
Lead sulfide.................... A................. 10 (4.54)
Lead thiocyanate................ A................. 10 (4.54)
Lindane......................... X................. 1 (0.454)
Lithium chromate................ A................. 10 (4.54)
Malathion....................... B................. 100 (45.4)
Maleic acid..................... D................. 5,000 (2,270)
Maleic anhydride................ D................. 5,000 (2,270)
Mercaptodimethur................ A................. 10 (4.54)
Mercuric cyanide................ X................. 1 (0.454)
Mercuric nitrate................ A................. 10 (4.54)
Mercuric sulfate................ A................. 10 (4.54)
Mercuric thiocyanate............ A................. 10 (4.54)
Mercurous nitrate............... A................. 10 (4.54)
Methoxychlor.................... X................. 1 (0.454)
Methyl mercaptan................ B................. 100 (45.4)
Methyl methacrylate............. C................. 1,000 (454)
Methyl parathion................ B................. 100 (45.4)
Mevinphos....................... A................. 10 (4.54)
Mexacarbate..................... C................. 1,000 (454)
Monoethylamine.................. B................. 100 (45.4)
Monomethylamine................. B................. 100 (45.4)
Naled........................... A................. 10 (4.54)
Naphthalene..................... B................. 100 (45.4)
Naphthenic acid................. B................. 100 (45.4)
Nickel ammonium sulfate......... B................. 100 (45.4)
Nickel chloride................. B................. 100 (45.4)
Nickel hydroxide................ A................. 10 (4.54)
Nickel nitrate.................. B................. 100 (45.4)
Nickel sulfate.................. B................. 100 (45.4)
Nitric acid..................... C................. 1,000 (454)
Nitrobenzene.................... C................. 1,000 (454)
Nitrogen dioxide................ A................. 10 (4.54)
Nitrophenol (mixed)............. B................. 100 (45.4)
Nitrotoluene.................... C................. 1,000 (454)
Paraformaldehyde................ C................. 1,000 (454)
Parathion....................... A................. 10 (4.54)
Pentachlorophenol............... A................. 10 (4.54)
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)
[[Page 159]]
Potassium arsenite.............. X................. 1 (0.454)
Potassium bichromate............ A................. 10 (4.54)
Potassium chromate.............. A................. 10 (4.54)
Potassium cyanide............... A................. 10 (4.54)
Potassium hydroxide............. C................. 1,000 (454)
Potassium permanganate.......... B................. 100 (45.4)
Propargite...................... A................. 10 (4.54)
Propionic acid.................. D................. 5,000 (2,270)
Propionic anhydride............. D................. 5,000 (2,270)
Propylene oxide................. B................. 100 (45.4)
Pyrethrins...................... X................. 1 (0.454)
Quinoline....................... D................. 5,000 (2,270)
Resorcinol...................... D................. 5,000 (2,270)
Selenium oxide.................. A................. 10 (4.54)
Silver nitrate.................. X................. 1 (0.454)
Sodium.......................... A................. 10 (4.54)
Sodium arsenate................. X................. 1 (0.454)
Sodium arsenite................. X................. 1 (0.454)
Sodium bichromate............... A................. 10 (4.54)
Sodium bifluoride............... B................. 100 (45.4)
Sodium bisulfite................ D................. 5,000 (2,270)
Sodium chromate................. A................. 10 (4.54)
Sodium cyanide.................. A................. 10 (4.54)
Sodium dodecylbenzenesulfonate.. C................. 1,000 (454)
Sodium fluoride................. C................. 1,000 (454)
Sodium hydrosulfide............. D................. 5,000 (2,270)
Sodium hydroxide................ C................. 1,000 (454)
Sodium hypochlorite............. B................. 100 (45.4)
Sodium methylate................ C................. 1,000 (454)
Sodium nitrite.................. B................. 100 (45.4)
Sodium phosphate, dibasic....... D................. 5,000 (2,270)
Sodium phosphate, tribasic...... D................. 5,000 (2,270)
Sodium selenite................. B................. 100 (45.4)
Strontium chromate.............. A................. 10 (4.54)
Strychnine...................... A................. 10 (4.54)
Styrene......................... C................. 1,000 (454)
Sulfuric acid................... C................. 1,000 (454)
Sulfur monochloride............. C................. 1,000 (454)
2,4,5-T acid.................... C................. 1,000 (454)
2,4,5-T amines.................. D................. 5,000 (2,270)
2,4,5-T esters.................. C................. 1,000 (454)
2,4,5-T salts................... C................. 1,000 (454)
TDE............................. X................. 1 (0.454)
2,4,5-TP acid................... B................. 100 (45.4)
2,4,5-TP acid esters............ B................. 100 (45.4)
Tetraethyl lead................. A................. 10 (4.54)
Tetraethyl pyrophosphate........ A................. 10 (4.54)
Thallium sulfate................ B................. 100 (45.4)
Toluene......................... C................. 1,000 (454)
Toxaphene....................... X................. 1 (0.454)
Trichlorfon..................... B................. 100 (45.4)
Trichloroethylene............... B................. 100 (45.4)
Trichlorophenol................. A................. 10 (4.54)
Triethanolamine C................. 1,000 (454)
dodecylbenzenesulfonate.
Triethylamine................... D................. 5,000 (2,270)
Trimethylamine.................. B................. 100 (45.4)
Uranyl acetate.................. B................. 100 (45.4)
Uranyl nitrate.................. B................. 100 (45.4)
Vanadium pentoxide.............. C................. 1,000 (454)
Vanadyl sulfate................. C................. 1,000 (454)
Vinyl acetate................... D................. 5,000 (2,270)
Vinylidene chloride............. B................. 100 (45.4)
Xylene (mixed).................. B................. 100 (45.4)
Xylenol......................... C................. 1,000 (454)
Zinc acetate.................... C................. 1,000 (454)
Zinc ammonium chloride.......... C................. 1,000 (454)
Zinc borate..................... C................. 1,000 (454)
Zinc bromide.................... C................. 1,000 (454)
Zinc carbonate.................. C................. 1,000 (454)
Zinc chloride................... C................. 1,000 (454)
Zinc cyanide.................... A................. 10 (4.54)
Zinc fluoride................... C................. 1,000 (454)
Zinc formate.................... C................. 1,000 (454)
Zinc hydrosulfite............... C................. 1,000 (454)
Zinc nitrate.................... C................. 1,000 (454)
Zinc phenolsulfonate............ D................. 5,000 (2,270)
Zinc phosphide.................. B................. 100 (45.4)
Zinc silicofluoride............. D................. 5,000 (2,270)
Zinc sulfate.................... C................. 1,000 (454)
Zirconium nitrate............... D................. 5,000 (2,270)
Zirconium potassium fluoride.... C................. 1,000 (454)
Zirconium sulfate............... D................. 5,000 (2,270)
Zirconium tetrachloride......... D................. 5,000 (2,270)
------------------------------------------------------------------------
[50 FR 13513, Apr. 4, 1985, as amended at 51 FR 34547, Sept. 29, 1986;
54 FR 33482, Aug. 14, 1989; 58 FR 35327, June 30, 1993; 60 FR 30937,
June 12, 1995]
Subpart B_Applicability
Sec. 117.11 General applicability.
This regulation sets forth a determination of the reportable
quantity for each substance designated as hazardous in 40 CFR part 116.
The regulation applies to quantities of designated substances equal to
or greater than the reportable quantities, when discharged into or upon
the navigable waters of the United States, adjoining shorelines, into or
upon the contiguous zone, or beyond the contiguous zone as provided in
section 311(b)(3) of the Act, except to the extent that the owner or
operator can show such that discharges are made:
(a) In compliance with a permit issued under the Marine Protection,
Research and Sanctuaries Act of 1972 (33 U.S.C. 1401 et seq.);
(b) In compliance with approved water treatment plant operations as
specified by local or State regulations pertaining to safe drinking
water;
(c) Pursuant to the label directions for application of a pesticide
product registered under section 3 or section 24 of the Federal
Insecticide, Fungicide, and Rodenticide Act (FIFRA), as amended (7
U.S.C. 136 et seq.), or pursuant to the terms and conditions of an
[[Page 160]]
experimental use permit issued under section 5 of FIFRA, or pursuant to
an exemption granted under section 18 of FIFRA;
(d) In compliance with the regulations issued under section 3004 or
with permit conditions issued pursuant to section 3005 of the Resource
Conservation and Recovery Act (90 Stat. 2795; 42 U.S.C. 6901);
(e) In compliance with instructions of the On-Scene Coordinator
pursuant to 40 CFR part 1510 (the National Oil and Hazardous Substances
Pollution Plan) or 33 CFR 153.10(e) (Pollution by Oil and Hazardous
Substances) or in accordance with applicable removal regulations as
required by section 311(j)(1)(A);
(f) In compliance with a permit issued under Sec. 165.7 of Title 14
of the State of California Administrative Code;
(g) From a properly functioning inert gas system when used to
provide inert gas to the cargo tanks of a vessel;
(h) From a permitted source and are excluded by Sec. 117.12 of this
regulation;
(i) To a POTW and are specifically excluded or reserved in Sec.
117.13; or
(j) In compliance with a permit issued under section 404(a) of the
Clean Water Act or when the discharges are exempt from such requirements
by section 404(f) or 404(r) of the Act (33 U.S.C. 1344(a), (f), (r)).
Sec. 117.12 Applicability to discharges from facilities with
NPDES permits.
(a) This regulation does not apply to:
(1) Discharges in compliance with a permit under section 402 of this
Act;
(2) Discharges resulting from circumstances identified, reviewed and
made a part of the public record with respect to a permit issued or
modified under section 402 of this Act, and subject to a condition in
such permit;
(3) Continuous or anticipated intermittent discharges from a point
source, identified in a permit or permit application under section 402
of this Act, which are caused by events occurring within the scope of
the relevant operating or treatment systems; or
(b) A discharge is ``in compliance with a permit issued under
section 402 of this Act'' if the permit contains an effluent limitation
specifically applicable to the substance discharged or an effluent
limitation applicable to another waste parameter which has been
specifically identified in the permit as intended to limit such
substance, and the discharge is in compliance with the effluent
limitation.
(c) A discharge results ``from circumstances identified, reviewed
and made a part of the public record with respect to a permit issued or
modified under section 402 of the Act, and subject to a condition in
such permit,'' whether or not the discharge is in compliance with the
permit, where:
(1) The permit application, the permit, or another portion of the
public record contains documents that specifically identify:
(i) The substance and the amount of the substance; and
(ii) The origin and source of the substance; and
(iii) The treatment which is to be provided for the discharge either
by:
(A) An on-site treatment system separate from any treatment system
treating the permittee's normal discharge; or
(B) A treatment system designed to treat the permittee's normal
discharge and which is additionally capable of treating the identified
amount of the identified substance; or
(C) Any combination of the above; and
(2) The permit contains a requirement that the substance and amounts
of the substance, as identified in Sec. 117.12(c)(1)(i) and Sec.
117.12(c)(1)(ii) be treated pursuant to Sec. 117.12(c)(1)(iii) in the
event of an on-site release; and
(3) The treatment to be provided is in place.
(d) A discharge is a ``continuous or anticipated intermittent
discharge from a point source, identified in a permit or permit
application under section 402 of this Act, and caused by events
occurring within the scope of the relevant operating or treatment
systems,'' whether or not the discharge is in compliance with the
permit, if:
(1) The hazardous substance is discharged from a point source for
which a valid permit exists or for which a permit application has been
submitted; and
[[Page 161]]
(2) The discharge of the hazardous substance results from:
(i) The contamination of noncontact cooling water or storm water,
provided that such cooling water or storm water is not contaminated by
an on-site spill of a hazardous substance; or
(ii) A continuous or anticipated intermittent discharge of process
waste water, and the discharge originates within the manufacturing or
treatment systems; or
(iii) An upset or failure of a treatment system or of a process
producing a continuous or anticipated intermittent discharge where the
upset or failure results from a control problem, an operator error, a
system failure or malfunction, an equipment or system startup or
shutdown, an equipment wash, or a production schedule change, provided
that such upset or failure is not caused by an on-site spill of a
hazardous substance.
[44 FR 50776, Aug. 29, 1979, as amended at 44 FR 58910, Oct. 12, 1979]
Sec. 117.13 Applicability to discharges from publicly owned
treatment works and their users.
(a) [Reserved]
(b) These regulations apply to all discharges of reportable
quantities to a POTW, where the discharge originates from a mobile
source, except where such source has contracted with, or otherwise
received written permission from the owners or operators of the POTW to
discharge that quantity, and the mobile source can show that prior to
accepting the substance from an industrial discharger, the substance had
been treated to comply with any effluent limitation under sections 301,
302 or 306 or pretreatment standard under section 307 applicable to that
facility.
Sec. 117.14 Demonstration projects.
Notwithstanding any other provision of this part, the Administrator
of the Environmental Protection Agency may, on a case-by-case basis,
allow the discharge of designated hazardous substances in connection
with research or demonstration projects relating to the prevention,
control, or abatement of hazardous substance pollution. The
Administrator will allow such a discharge only where he determines that
the expected environmental benefit from such a discharge will outweigh
the potential hazard associated with the discharge.
Subpart C_Notice of Discharge of a Reportable Quantity
Sec. 117.21 Notice.
Any person in charge of a vessel or an onshore or an offshore
facility shall, as soon as he has knowledge of any discharge of a
designated hazardous substance from such vessel or facility in
quantities equal to or exceeding in any 24-hour period the reportable
quantity determined by this part, immediately notify the appropriate
agency of the United States Government of such discharge. Notice shall
be given in accordance with such procedures as the Secretary of
Transportation has set forth in 33 CFR 153.203. This provision applies
to all discharges not specifically excluded or reserved by another
section of these regulations.
Sec. 117.23 Liabilities for removal.
In any case where a substance designated as hazardous in 40 CFR part
116 is discharged from any vessel or onshore or offshore facility in a
quantity equal to or exceeding the reportable quantity determined by
this part, the owner, operator or person in charge will be liable,
pursuant to section 311 (f) and (g) of the Act, to the United States
Government for the actual costs incurred in the removal of such
substance, subject only to the defenses and monetary limitations
enumerated in section 311 (f) and (g) of the Act.
The Administrator may act to mitigate the damage to the public health or
welfare caused by a discharge and the cost of such mitigation shall be
considered a cost incurred under section 311(c) for the removal of that
substance by the United States Government.
PART 121_STATE CERTIFICATION OF ACTIVITIES REQUIRING A FEDERAL LICENSE
OR PERMIT--Table of Contents
Subpart A_General
Sec.
121.1 Definitions.
121.2 Contents of certification.
[[Page 162]]
121.3 Contents of application.
Subpart B_Determination of Effect on Other States
121.11 Copies of documents.
121.12 Supplemental information.
121.13 Review by Regional Administrator and notification.
121.14 Forwarding to affected State.
121.15 Hearings on objection of affected State.
121.16 Waiver.
Subpart C_Certification by the Administrator
121.21 When Administrator certifies.
121.22 Applications.
121.23 Notice and hearing.
121.24 Certification.
121.25 Adoption of new water quality standards.
121.26 Inspection of facility or activity before operation.
121.27 Notification to licensing or permitting agency.
121.28 Termination of suspension.
Subpart D_Consultations
121.30 Review and advice.
Authority: Sec. 21 (b) and (c), 84 Stat. 91 (33 U.S.C. 1171(b)
(1970)); Reorganization Plan No. 3 of 1970.
Source: 36 FR 22487, Nov. 25, 1971, unless otherwise noted.
Redesignated at 37 FR 21441, Oct. 11, 1972, and further redesignated at
44 FR 32899, June 7, 1979.
Subpart A_General
Sec. 121.1 Definitions.
As used in this part, the following terms shall have the meanings
indicated below:
(a) License or permit means any license or permit granted by an
agency of the Federal Government to conduct any activity which may
result in any discharge into the navigable waters of the United States.
(b) Licensing or permitting agency means any agency of the Federal
Government to which application is made for a license or permit.
(c) Administrator means the Administrator, Environmental Protection
Agency.
(d) Regional Administrator means the Regional designee appointed by
the Administrator, Environmental Protection Agency.
(e) Certifying agency means the person or agency designated by the
Governor of a State, by statute, or by other governmental act, to
certify compliance with applicable water quality standards. If an
interstate agency has sole authority to so certify for the area within
its jurisdiction, such interstate agency shall be the certifying agency.
Where a State agency and an interstate agency have concurrent authority
to certify, the State agency shall be the certifying agency. Where water
quality standards have been promulgated by the Administrator pursuant to
section 10(c)(2) of the Act, or where no State or interstate agency has
authority to certify, the Administrator shall be the certifying agency.
(f) Act means the Federal Water Pollution Control Act, 33 U.S.C.
1151 et seq.
(g) Water quality standards means standards established pursuant to
section 10(c) of the Act, and State-adopted water quality standards for
navigable waters which are not interstate waters.
Sec. 121.2 Contents of certification.
(a) A certification made by a certifying agency shall include the
following:
(1) The name and address of the applicant;
(2) A statement that the certifying agency has either (i) examined
the application made by the applicant to the licensing or permitting
agency (specifically identifying the number or code affixed to such
application) and bases its certification upon an evaluation of the
information contained in such application which is relevant to water
quality considerations, or (ii) examined other information furnished by
the applicant sufficient to permit the certifying agency to make the
statement described in paragraph (a)(3) of this section;
(3) A statement that there is a reasonable assurance that the
activity will be conducted in a manner which will not violate applicable
water quality standards;
(4) A statement of any conditions which the certifying agency deems
necessary or desirable with respect to the discharge of the activity;
and
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(5) Such other information as the certifying agency may determine to
be appropriate.
(b) The certifying agency may modify the certification in such
manner as may be agreed upon by the certifying agency, the licensing or
permitting agency, and the Regional Administrator.
Sec. 121.3 Contents of application.
A licensing or permitting agency shall require an applicant for a
license or permit to include in the form of application such information
relating to water quality considerations as may be agreed upon by the
licensing or permitting agency and the Administrator.
Subpart B_Determination of Effect on Other States
Sec. 121.11 Copies of documents.
(a) Upon receipt from an applicant of an application for a license
or permit without an accompanying certification, the licensing or
permitting agency shall either: (1) Forward one copy of the application
to the appropriate certifying agency and two copies to the Regional
Administrator, or (2) forward three copies of the application to the
Regional Administrator, pursuant to an agreement between the licensing
or permitting agency and the Administrator that the Regional
Administrator will transmit a copy of the application to the appropriate
certifying agency. Upon subsequent receipt from an applicant of a
certification, the licensing or permitting agency shall forward a copy
of such certification to the Regional Administrator, unless such
certification shall have been made by the Regional Administrator
pursuant to Sec. 121.24.
(b) Upon receipt from an applicant of an application for a license
or permit with an accompanying certification, the licensing or
permitting agency shall forward two copies of the application and
certification to the Regional Administrator.
(c) Only those portions of the application which relate to water
quality considerations shall be forwarded to the Regional Administrator.
Sec. 121.12 Supplemental information.
If the documents forwarded to the Regional Administrator by the
licensing or permitting agency pursuant to Sec. 121.11 do not contain
sufficient information for the Regional Administrator to make the
determination provided for in Sec. 121.13, the Regional Administrator
may request, and the licensing or permitting agency shall obtain from
the applicant and forward to the Regional Administrator, any
supplemental information as may be required to make such determination.
Sec. 121.13 Review by Regional Administrator and notification.
The Regional Administrator shall review the application,
certification, and any supplemental information provided in accordance
with Sec. Sec. 121.11 and 121.12 and if the Regional Administrator
determines there is reason to believe that a discharge may affect the
quality of the waters of any State or States other than the State in
which the discharge originates, the Regional Administrator shall, no
later than 30 days of the date of receipt of the application and
certification from the licensing or permitting agency as provided in
Sec. 121.11, so notify each affected State, the licensing or permitting
agency, and the applicant.
Sec. 121.14 Forwarding to affected State.
The Regional Administrator shall forward to each affected State a
copy of the material provided in accordance with Sec. 121.11.
Sec. 121.15 Hearings on objection of affected State.
When a licensing or permitting agency holds a public hearing on the
objection of an affected State, notice of such objection, including the
grounds for such objection, shall be forwarded to the Regional
Administrator by the licensing or permitting agency no later than 30
days prior to such hearing. The Regional Administrator shall at such
hearing submit his evaluation with respect to such objection and his
recommendations as to whether and under what conditions the license or
permit should be issued.
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Sec. 121.16 Waiver.
The certification requirement with respect to an application for a
license or permit shall be waived upon:
(a) Written notification from the State or interstate agency
concerned that it expressly waives its authority to act on a request for
certification; or
(b) Written notification from the licensing or permitting agency to
the Regional Administrator of the failure of the State or interstate
agency concerned to act on such request for certification within a
reasonable period of time after receipt of such request, as determined
by the licensing or permitting agency (which period shall generally be
considered to be 6 months, but in any event shall not exceed 1 year).
In the event of a waiver hereunder, the Regional Administrator shall
consider such waiver as a substitute for a certification, and as
appropriate, shall conduct the review, provide the notices, and perform
the other functions identified in Sec. Sec. 121.13, 121.14, and 121.15.
The notices required by Sec. 121.13 shall be provided not later than 30
days after the date of receipt by the Regional Administrator of either
notification referred to herein.
Subpart C_Certification by the Administrator
Sec. 121.21 When Administrator certifies.
Certification by the Administrator that the discharge resulting from
an activity requiring a license or permit will not violate applicable
water quality standards will be required where:
(a) Standards have been promulgated, in whole or in part, by the
Administrator pursuant to section 10(c)(2) of the Act: Provided,
however, That the Administrator will certify compliance only with
respect to those water quality standards promulgated by him; or
(b) Water quality standards have been established, but no State or
interstate agency has authority to give such a certification.
Sec. 121.22 Applications.
An applicant for certification from the Administrator shall submit
to the Regional Administrator a complete description of the discharge
involved in the activity for which certification is sought, with a
request for certification signed by the applicant. Such description
shall include the following:
(a) The name and address of the applicant;
(b) A description of the facility or activity, and of any discharge
into navigable waters which may result from the conduct of any activity
including, but not limited to, the construction or operation of the
facility, including the biological, chemical, thermal, and other
characteristics of the discharge, and the location or locations at which
such discharge may enter navigable waters;
(c) A description of the function and operation of equipment or
facilities to treat wastes or other effluents which may be discharged,
including specification of the degree of treatment expected to be
attained;
(d) The date or dates on which the activity will begin and end, if
known, and the date or dates on which the discharge will take place;
(e) A description of the methods and means being used or proposed to
monitor the quality and characteristics of the discharge and the
operation of equipment or facilities employed in the treatment or
control of wastes or other effluents.
Sec. 121.23 Notice and hearing.
The Regional Administrator will provide public notice of each
request for certification by mailing to State, County, and municipal
authorities, heads of State agencies responsible for water quality
improvement, and other parties known to be interested in the matter,
including adjacent property owners and conservation organizations, or
may provide such notice in a newspaper of general circulation in the
area in which the activity is proposed to be conducted if the Regional
Administrator deems mailed notice to be impracticable. Interested
parties shall be provided an opportunity to comment on such request in
such manner as the
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Regional Administrator deems appropriate. All interested and affected
parties will be given reasonable opportunity to present evidence and
testimony at a public hearing on the question whether to grant or deny
certification if the Regional Administrator determines that such a
hearing is necessary or appropriate.
Sec. 121.24 Certification.
If, after considering the complete description, the record of a
hearing, if any, held pursuant to Sec. 121.23, and such other
information and data as the Regional Administrator deems relevant, the
Regional Administrator determines that there is reasonable assurance
that the proposed activity will not result in a violation of applicable
water quality standards, he shall so certify. If the Regional
Administrator determines that no water quality standards are applicable
to the waters which might be affected by the proposed activity, he shall
so notify the applicant and the licensing or permitting agency in
writing and shall provide the licensing or permitting agency with
advice, suggestions, and recommendations with respect to conditions to
be incorporated in any license or permit to achieve compliance with the
purpose of this Act. In such case, no certification shall be required.
Sec. 121.25 Adoption of new water quality standards.
(a) In any case where:
(1) A license or permit was issued without certification due to the
absence of applicable water quality standards; and
(2) Water quality standards applicable to the waters into which the
licensed or permitted activity may discharge are subsequently
established; and
(3) The Administrator is the certifying agency because:
(i) No State or interstate agency has authority to certify; or
(ii) Such new standards were promulgated by the Administrator
pursuant to section 10(c)(2) of the Act; and
(4) The Regional Administrator determines that such uncertified
activity is violating water quality standards;
Then the Regional Administrator shall notify the licensee or permittee
of such violation, including his recommendations as to actions necessary
for compliance. If the licensee or permittee fails within 6 months of
the date of such notice to take action which in the opinion of the
Regional Administrator will result in compliance with applicable water
quality standards, the Regional Administrator shall notify the licensing
or permitting agency that the licensee or permittee has failed, after
reasonable notice, to comply with such standards and that suspension of
the applicable license or permit is required by section 21(b)(9)(B) of
the Act.
(b) Where a license or permit is suspended pursuant to paragraph (a)
of this section, and where the licensee or permittee subsequently takes
action which in the Regional Administrator's opinion will result in
compliance with applicable water quality standards, the Regional
Administrator shall then notify the licensing or permitting agency that
there is reasonable assurance that the licensed or permitted activity
will comply with applicable water quality standards.
Sec. 121.26 Inspection of facility or activity before operation.
Where any facility or activity has received certification pursuant
to Sec. 121.24 in connection with the issuance of a license or permit
for construction, and where such facility or activity is not required to
obtain an operating license or permit, the Regional Administrator or his
representative, prior to the initial operation of such facility or
activity, shall be afforded the opportunity to inspect such facility or
activity for the purpose of determining if the manner in which such
facility or activity will be operated or conducted will violate
applicable water quality standards.
Sec. 121.27 Notification to licensing or permitting agency.
If the Regional Administrator, after an inspection pursuant to Sec.
121.26, determines that operation of the proposed facility or activity
will violate applicable water quality standards, he
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shall so notify the applicant and the licensing or permitting agency,
including his recommendations as to remedial measures necessary to bring
the operation of the proposed facility into compliance with such
standards.
Sec. 121.28 Termination of suspension.
Where a licensing or permitting agency, following a public hearing,
suspends a license or permit after receiving the Regional
Administrator's notice and recommendation pursuant to Sec. 121.27, the
applicant may submit evidence to the Regional Administrator that the
facility or activity or the operation or conduct thereof has been
modified so as not to violate water quality standards. If the Regional
Administrator determines that water quality standards will not be
violated, he shall so notify the licensing or permitting agency.
Subpart D_Consultations
Sec. 121.30 Review and advice.
The Regional Administrator may, and upon request shall, provide
licensing and permitting agencies with determinations, definitions and
interpretations with respect to the meaning and content of water quality
standards where they have been federally approved under section 10 of
the Act, and findings with respect to the application of all applicable
water quality standards in particular cases and in specific
circumstances relative to an activity for which a license or permit is
sought. The Regional Administrator may, and upon request shall, also
advise licensing and permitting agencies as to the status of compliance
by dischargers with the conditions and requirements of applicable water
quality standards. In cases where an activity for which a license or
permit is sought will affect water quality, but for which there are no
applicable water quality standards, the Regional Administrator may
advise licensing or permitting agencies with respect to conditions of
such license or permit to achieve compliance with the purpose of the
Act.
PART 122_EPA ADMINISTERED PERMIT PROGRAMS: THE NATIONAL POLLUTANT
DISCHARGE ELIMINATION SYSTEM--Table of Contents
Subpart A_Definitions and General Program Requirements
Sec.
122.1 Purpose and scope.
122.2 Definitions.
122.3 Exclusions.
122.4 Prohibitions (applicable to State NPDES Programs, see Sec.
123.25).
122.5 Effect of a permit.
122.6 Continuation of expiring permits.
122.7 Confidentiality of information.
Subpart B_Permit Application and Special NPDES Program Requirements
122.21 Application for a permit (applicable to State programs, see Sec.
123.25).
122.22 Signatories to permit applications and reports (applicable to
State programs, see Sec. 123.25).
122.23 Concentrated animal feeding operations (applicable to State NPDES
programs, see Sec. 123.25).
122.24 Concentrated aquatic animal production facilities (applicable to
State NPDES programs, see Sec. 123.25).
122.25 Aquaculture projects (applicable to State NPDES programs, see
Sec. 123.25).
122.26 Storm water discharges (applicable to State NPDES programs, see
Sec. 123.25).
122.27 Silvicultural activities (applicable to State NPDES programs, see
Sec. 123.25).
122.28 General permits (applicable to State NPDES programs, see Sec.
123.25).
122.29 New sources and new dischargers.
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 Requirements for obtaining permit coverage for regulated small
MS4s.
122.34 Permit requirements for regulated small MS4 permits.
122.35 May the operator of a regulated small MS4 share the
responsibility to implement the minimum control measures with
other entities?
122.36 As an operator of a regulated small MS4, what happens if I don't
comply with the application or permit requirements in
Sec. Sec. 122.33 through 122.35?
122.37 Will the small MS4 storm water program regulations at Sec. Sec.
122.32 through 122.36 and Sec. 123.35 of this chapter change
in the future?
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122.38 Public notification requirements for CSO discharges to the Great
Lakes Basin.
Subpart C_Permit Conditions
122.41 Conditions applicable to all permits (applicable to State
programs, see Sec. 123.25).
122.42 Additional conditions applicable to specified categories of NPDES
permits (applicable to State NPDES programs, see Sec.
123.25).
122.43 Establishing permit conditions (applicable to State programs, see
Sec. 123.25).
122.44 Establishing limitations, standards and other permit conditions
(applicable to State NPDES programs, see Sec. 123.25).
122.45 Calculating NPDES permit conditions (applicable to State NPDES
programs, see Sec. 123.25).
122.46 Duration of permits (applicable to State programs, see Sec.
123.25).
122.47 Schedules of compliance.
122.48 Requirements for recording and reporting of monitoring results
(applicable to State programs, see Sec. 123.25).
122.49 Considerations under Federal law.
122.50 Disposal of pollutants into wells, into publicly owned treatment
works or by land application (applicable to State NPDES
programs, see Sec. 123.25).
Subpart D_Transfer, Modification, Revocation and Reissuance, and
Termination of Permits
122.61 Transfer of permits (applicable to State programs, see Sec.
123.25).
122.62 Modification or revocation and reissuance of permits (applicable
to State programs, see Sec. 123.25).
122.63 Minor modifications of permits.
122.64 Termination of permits (applicable to State programs, see Sec.
123.25).
Appendix A to Part 122--NPDES Primary Industry Categories
Appendix B to Part 122 [Reserved]
Appendix C to Part 122--Criteria for Determining a Concentrated Aquatic
Animal Production Facility (Sec. 122.24)
Appendix D to Part 122--NPDES Permit Application Testing Requirements
(Sec. 122.21)
Appendix E to Part 122--Rainfall Zones of the United States
Appendix F to Part 122--Incorporated Places With Populations Greater
Than 250,000 According to the 1990 Decennial Census by the
Bureau of the Census
Appendix G to Part 122--Incorporated Places With Populations Greater
Than 100,000 But Less Than 250,000 According to the 1990
Decennial Census by the Bureau of the Census
Appendix H to Part 122--Counties with Unincorporated Urbanized Areas
With a Population of 250,000 or More According to the 1990
Decennial Census by the Bureau of the Census
Appendix I to Part 122--Counties With Unincorporated Urbanized Areas
Greater Than 100,000, But Less Than 250,000 According to the
1990 Decennial Census by the Bureau of the Census
Appendix J to Part 122--NPDES Permit Testing Requirements for Publicly
Owned Treatment Works (Sec. 122.21(j))
Authority: The Clean Water Act, 33 U.S.C. 1251 et seq.
Source: 48 FR 14153, Apr. 1, 1983, unless otherwise noted.
Subpart A_Definitions and General Program Requirements
Sec. 122.1 Purpose and scope.
(a) Coverage. (1) The regulatory provisions contained in this part
and parts 123, and 124 of this chapter implement the National Pollutant
Discharge Elimination System (NPDES) Program under sections 318, 402,
and 405 of the Clean Water Act (CWA) (Public Law 92-500, as amended, 33
U.S.C. 1251 et seq.)
(2) These provisions cover basic EPA permitting requirements (this
part 122), what a State must do to obtain approval to operate its
program in lieu of a Federal program and minimum requirements for
administering the approved State program (part 123 of this chapter), and
procedures for EPA processing of permit applications and appeals (part
124 of this chapter).
(3) These provisions also establish the requirements for public
participation in EPA and State permit issuance and enforcement and
related variance proceedings, and in the approval of State NPDES
programs. These provisions carry out the purposes of the public
participation requirements of part 25 of this chapter, and supersede the
requirements of that part as they apply to actions covered under this
part and parts 123, and 124 of this chapter.
(4) Regulatory provisions in Parts 125, 129, 133, 136 of this
chapter and 40 CFR subchapter N and subchapter O of this chapter also
implement the NPDES permit program.
(5) Certain requirements set forth in parts 122 and 124 of this
chapter are
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made applicable to approved State programs by reference in part 123 of
this chapter. These references are set forth in Sec. 123.25 of this
chapter. If a section or paragraph of part 122 or 124 of this chapter is
applicable to States, through reference in Sec. 123.25 of this chapter,
that fact is signaled by the following words at the end of the section
or paragraph heading: (Applicable to State programs, see Sec. 123.25 of
this chapter). If these words are absent, the section (or paragraph)
applies only to EPA administered permits. Nothing in this part and parts
123, or 124 of this chapter precludes more stringent State regulation of
any activity covered by the regulations in 40 CFR parts 122, 123, and
124, whether or not under an approved State program.
(b) Scope of the NPDES permit requirement. (1) The NPDES program
requires permits for the discharge of ``pollutants'' from any ``point
source'' into ``waters of the United States.'' The terms ``pollutant'',
``point source'' and ``waters of the United States'' are defined at
Sec. 122.2.
(2) The permit program established under this part also applies to
owners or operators of any treatment works treating domestic sewage,
whether or not the treatment works is otherwise required to obtain an
NPDES permit, unless all requirements implementing section 405(d) of the
CWA applicable to the treatment works treating domestic sewage are
included in a permit issued under the appropriate provisions of subtitle
C of the Solid Waste Disposal Act, Part C of the Safe Drinking Water
Act, the Marine Protection, Research, and Sanctuaries Act of 1972, or
the Clean Air Act, or under State permit programs approved by the
Administrator as adequate to assure compliance with section 405 of the
CWA.
(3) The Regional Administrator may designate any person subject to
the standards for sewage sludge use and disposal as a ``treatment works
treating domestic sewage'' as defined in Sec. 122.2, where the Regional
Administrator finds that a permit is necessary to protect public health
and the environment from the adverse effects of sewage sludge or to
ensure compliance with the technical standards for sludge use and
disposal developed under CWA section 405(d). Any person designated as a
``treatment works treating domestic sewage'' shall submit an application
for a permit under Sec. 122.21 within 180 days of being notified by the
Regional Administrator that a permit is required. The Regional
Administrator's decision to designate a person as a ``treatment works
treating domestic sewage'' under this paragraph shall be stated in the
fact sheet or statement of basis for the permit.
Note to Sec. 122.1: Information concerning the NPDES program and
its regulations can be obtained by contacting the Water Permits Division
(4203), Office of Wastewater Management, U.S. EPA, 1200 Pennsylvania
Avenue NW, Washington, DC 20460 and by visiting the homepage at http://
www.epa.gov/npdes/.
[65 FR 30904, May 15, 2000, as amended at 72 FR 11211, Mar. 12, 2007; 84
FR 3336, Feb. 12, 2019]
Sec. 122.2 Definitions.
The following definitions apply to parts 122, 123, and 124. Terms
not defined in this section have the meaning given by CWA. When a
defined term appears in a definition, the defined term is sometimes
placed in quotation marks as an aid to readers.
Administrator means the Administrator of the United States
Environmental Protection Agency, or an authorized representative.
Animal feeding operation is defined at Sec. 122.23.
Applicable standards and limitations means all State, interstate,
and federal standards and limitations to which a ``discharge,'' a
``sewage sludge use or disposal practice,'' or a related activity is
subject under the CWA, including ``effluent limitations,'' water quality
standards, standards of performance, toxic effluent standards or
prohibitions, ``best management practices,'' pretreatment standards, and
``standards for sewage sludge use or disposal'' under sections 301, 302,
303, 304, 306, 307, 308, 403 and 405 of CWA.
Application means the EPA standard national forms for applying for a
permit, including any additions, revisions or modifications to the
forms; or forms approved by EPA for use in ``approved States,''
including any approved modifications or revisions.
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Approved program or approved State means a State or interstate
program which has been approved or authorized by EPA under part 123.
Aquaculture project is defined at Sec. 122.25.
Average monthly discharge limitation means the highest allowable
average of ``daily discharges'' over a calendar month, calculated as the
sum of all ``daily discharges'' measured during a calendar month divided
by the number of ``daily discharges'' measured during that month.
Average weekly discharge limitation means the highest allowable
average of ``daily discharges'' over a calendar week, calculated as the
sum of all ``daily discharges'' measured during a calendar week divided
by the number of ``daily discharges'' measured during that week.
Best management practices (``BMPs'') means schedules of activities,
prohibitions of practices, maintenance procedures, and other management
practices to prevent or reduce the pollution of ``waters of the United
States.'' BMPs also include treatment requirements, operating
procedures, and practices to control plant site runoff, spillage or
leaks, sludge or waste disposal, or drainage from raw material storage.
BMPs means ``best management practices.''
Class I sludge management facility means any POTW identified under
40 CFR 403.8(a) as being required to have an approved pretreatment
program (including such POTWs located in a State that has elected to
assume local program responsibilities pursuant to 40 CFR 403.10(e)) and
any other treatment works treating domestic sewage classified as a Class
I sludge management facility by the Regional Administrator, or, in the
case of approved State programs, the Regional Administrator in
conjunction with the State Director, because of the potential for its
sludge use or disposal practices to adversely affect public health and
the environment.
Bypass is defined at Sec. 122.41(m).
Combined sewer overflow (CSO) means a discharge from a combined
sewer system (CSS) at a point prior to the Publicly Owned Treatment
Works (POTW) Treatment Plant (defined at Sec. 403.3(r) of this
chapter).
Combined sewer system (CSS) means a wastewater collection system
owned by a State or municipality (as defined by section 502(4) of the
CWA) which conveys sanitary wastewaters (domestic, commercial and
industrial wastewaters) and storm water through a single-pipe system to
a Publicly Owned Treatment Works (POTW) Treatment Plant (as defined at
Sec. 403.3(r) of this chapter).
Concentrated animal feeding operation is defined at Sec. 122.23.
Concentrated aquatic animal feeding operation is defined at Sec.
122.24.
Contiguous zone means the entire zone established by the United
States under Article 24 of the Convention on the Territorial Sea and the
Contiguous Zone.
Continuous discharge means a ``discharge'' which occurs without
interruption throughout the operating hours of the facility, except for
infrequent shutdowns for maintenance, process changes, or other similar
activities.
CWA means the Clean Water Act (formerly referred to as the Federal
Water Pollution Control Act or Federal Water Pollution Control Act
Amendments of 1972) Public Law 92-500, as amended by Public Law 95-217,
Public Law 95-576, Public Law 96-483 and Public Law 97-117, 33 U.S.C.
1251 et seq.
CWA and regulations means the Clean Water Act (CWA) and applicable
regulations promulgated thereunder. In the case of an approved State
program, it includes State program requirements.
Daily discharge means the ``discharge of a pollutant'' measured
during a calendar day or any 24-hour period that reasonably represents
the calendar day for purposes of sampling. For pollutants with
limitations expressed in units of mass, the ``daily discharge'' is
calculated as the total mass of the pollutant discharged over the day.
For pollutants with limitations expressed in other units of measurement,
the ``daily discharge'' is calculated as the average measurement of the
pollutant over the day.
Direct discharge means the ``discharge of a pollutant.''
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Director means the Regional Administrator or the State Director, as
the context requires, or an authorized representative. When there is no
``approved State program,'' and there is an EPA administered program,
``Director'' means the Regional Administrator. When there is an approved
State program, ``Director'' normally means the State Director. In some
circumstances, however, EPA retains the authority to take certain
actions even when there is an approved State program. (For example, when
EPA has issued an NPDES permit prior to the approval of a State program,
EPA may retain jurisdiction over that permit after program approval, see
Sec. 123.1.) In such cases, the term ``Director'' means the Regional
Administrator and not the State Director.
Discharge when used without qualification means the ``discharge of a
pollutant.''
Discharge of a pollutant means:
(a) Any addition of any ``pollutant'' or combination of pollutants
to ``waters of the United States'' from any ``point source,'' or
(b) Any addition of any pollutant or combination of pollutants to
the waters of the ``contiguous zone'' or the ocean from any point source
other than a vessel or other floating craft which is being used as a
means of transportation.
This definition includes additions of pollutants into waters of the
United States from: surface runoff which is collected or channelled by
man; discharges through pipes, sewers, or other conveyances owned by a
State, municipality, or other person which do not lead to a treatment
works; and discharges through pipes, sewers, or other conveyances,
leading into privately owned treatment works. This term does not include
an addition of pollutants by any ``indirect discharger.''
Discharge Monitoring Report (``DMR'') means the EPA uniform national
form, including any subsequent additions, revisions, or modifications
for the reporting of self-monitoring results by permittees. DMRs must be
used by ``approved States'' as well as by EPA. EPA will supply DMRs to
any approved State upon request. The EPA national forms may be modified
to substitute the State Agency name, address, logo, and other similar
information, as appropriate, in place of EPA's.
DMR means ``Discharge Monitoring Report.''
Draft permit means a document prepared under Sec. 124.6 indicating
the Director's tentative decision to issue or deny, modify, revoke and
reissue, terminate, or reissue a ``permit.'' A notice of intent to
terminate a permit, and a notice of intent to deny a permit, as
discussed in Sec. 124.5, are types of ``draft permits.'' A denial of a
request for modification, revocation and reissuance, or termination, as
discussed in Sec. 124.5, is not a ``draft permit.'' A ``proposed
permit'' is not a ``draft permit.''
Effluent limitation means any restriction imposed by the Director on
quantities, discharge rates, and concentrations of ``pollutants'' which
are ``discharged'' from ``point sources'' into ``waters of the United
States,'' the waters of the ``contiguous zone,'' or the ocean.
Effluent limitations guidelines means a regulation published by the
Administrator under section 304(b) of CWA to adopt or revise ``effluent
limitations.''
Environmental Protection Agency (``EPA'') means the United States
Environmental Protection Agency.
EPA means the United States ``Environmental Protection Agency.''
Facility or activity means any NPDES ``point source'' or any other
facility or activity (including land or appurtenances thereto) that is
subject to regulation under the NPDES program.
Federal Indian reservation means all land within the limits of any
Indian reservation under the jurisdiction of the United States
Government, notwithstanding the issuance of any patent, and including
rights-of-way running through the reservation.
General permit means an NPDES ``permit'' issued under Sec. 122.28
authorizing a category of discharges under the CWA within a geographical
area.
Great Lakes Basin means the waters defined as ``Great Lakes'' and
``Great Lakes System'' as those terms are defined in Sec. 132.2 of this
chapter.
Hazardous substance means any substance designated under 40 CFR part
116 pursuant to section 311 of CWA.
[[Page 171]]
Indian country means:
(1) All land within the limits of any Indian reservation under the
jurisdiction of the United States Government, notwithstanding the
issuance of any patent, and, including rights-of-way running through the
reservation;
(2) All dependent Indian communities with the borders of the United
States whether within the originally or subsequently acquired territory
thereof, and whether within or without the limits of a state; and
(3) All Indian allotments, the Indian titles to which have not been
extinguished, including rights-of-way running through the same.
Indian Tribe means any Indian Tribe, band, group, or community
recognized by the Secretary of the Interior and exercising governmental
authority over a Federal Indian reservation.
Indirect discharger means a nondomestic discharger introducing
``pollutants'' to a ``publicly owned treatment works.''
Individual control strategy is defined at 40 CFR 123.46(c).
Interstate agency means an agency of two or more States established
by or under an agreement or compact approved by the Congress, or any
other agency of two or more States having substantial powers or duties
pertaining to the control of pollution as determined and approved by the
Administrator under the CWA and regulations.
Major facility means any NPDES ``facility or activity'' classified
as such by the Regional Administrator, or, in the case of ``approved
State programs,'' the Regional Administrator in conjunction with the
State Director.
Maximum daily discharge limitation means the highest allowable
``daily discharge.''
Municipality means a city, town, borough, county, parish, district,
association, or other public body created by or under State law and
having jurisdiction over disposal of sewage, industrial wastes, or other
wastes, or an Indian tribe or an authorized Indian tribal organization,
or a designated and approved management agency under section 208 of CWA.
Municipal separate storm sewer system is defined at Sec. 122.26
(b)(4) and (b)(7).
National Pollutant Discharge Elimination System (NPDES) means the
national program for issuing, modifying, revoking and reissuing,
terminating, monitoring and enforcing permits, and imposing and
enforcing pretreatment requirements, under sections 307, 402, 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 NPDES permit for
discharges at that ``site.''
New source means any building, structure, facility, or installation
from which there is or may be a ``discharge of pollutants,'' the
construction of which commenced:
(a) After promulgation of standards of performance under section 306
of CWA which are applicable to such source, or
(b) After proposal of standards of performance in accordance with
section 306 of CWA which are applicable to such source, but only if the
standards are promulgated in accordance with section 306 within 120 days
of their proposal.
NPDES means ``National Pollutant Discharge Elimination System.''
Owner or operator means the owner or operator of any ``facility or
activity'' subject to regulation under the NPDES program.
Permit means an authorization, license, or equivalent control
document issued by EPA or an ``approved State'' to implement the
requirements of this part and parts 123 and 124. ``Permit'' includes an
NPDES ``general permit'' (Sec. 122.28). Permit does not include any
permit which has not yet been the subject of final agency action, such
as a ``draft permit'' or a ``proposed permit.''
Person means an individual, association, partnership, corporation,
municipality, State or Federal agency, or an agent or employee thereof.
Pesticide discharges to waters of the United States from pesticide
application means the discharges that result from
[[Page 172]]
the application of biological pesticides, and the application of
chemical pesticides that leave a residue, from point sources to waters
of the United States. In the context of this definition of pesticide
discharges to waters of the United States from pesticide application,
this does not include agricultural storm water discharges and return
flows from irrigated agriculture, which are excluded by law (33 U.S.C.
1342(l); 33 U.S.C. 1362(14)).
Pesticide residue for the purpose of determining whether an NPDES
permit is needed for discharges to waters of the United States from
pesticide application, means that portion of a pesticide application
that is discharged from a point source to waters of the United States
and no longer provides pesticidal benefits. It also includes any
degradates of the pesticide.
Point source means any discernible, confined, and discrete
conveyance, including but not limited to, any pipe, ditch, channel,
tunnel, conduit, well, discrete fissure, container, rolling stock,
concentrated animal feeding operation, landfill leachate collection
system, vessel or other floating craft from which pollutants are or may
be discharged. This term does not include return flows from irrigated
agriculture or agricultural storm water runoff. (See Sec. 122.3).
Pollutant means dredged spoil, solid waste, incinerator residue,
filter backwash, sewage, garbage, sewage sludge, munitions, chemical
wastes, biological materials, radioactive materials (except those
regulated under the Atomic Energy Act of 1954, as amended (42 U.S.C.
2011 et seq.)), heat, wrecked or discarded equipment, rock, sand, cellar
dirt and industrial, municipal, and agricultural waste discharged into
water. It does not mean:
(a) Sewage from vessels; or
(b) Water, gas, or other material which is injected into a well to
facilitate production of oil or gas, or water derived in association
with oil and gas production and disposed of in a well, if the well used
either to facilitate production or for disposal purposes is approved by
authority of the State in which the well is located, and if the State
determines that the injection or disposal will not result in the
degradation of ground or surface water resources.
Note: Radioactive materials covered by the Atomic Energy Act are
those encompassed in its definition of source, byproduct, or special
nuclear materials. Examples of materials not covered include radium and
accelerator-produced isotopes. See Train v. Colorado Public Interest
Research Group, Inc., 426 U.S. 1 (1976).
POTW is defined at Sec. 403.3 of this chapter.
Primary industry category means any industry category listed in the
NRDC settlement agreement (Natural Resources Defense Council et al. v.
Train, 8 E.R.C. 2120 (D.D.C. 1976), modified 12 E.R.C. 1833 (D.D.C.
1979)); also listed in appendix A of part 122.
Privately owned treatment works means any device or system which is
(a) used to treat wastes from any facility whose operator is not the
operator of the treatment works and (b) not a ``POTW.''
Process wastewater means any water which, during manufacturing or
processing, comes into direct contact with or results from the
production or use of any raw material, intermediate product, finished
product, byproduct, or waste product.
Proposed permit means a State NPDES ``permit'' prepared after the
close of the public comment period (and, when applicable, any public
hearing and administrative appeals) which is sent to EPA for review
before final issuance by the State. A ``proposed permit'' is not a
``draft permit.''
Publicly owned treatment works is defined at 40 CFR 403.3.
Recommencing discharger means a source which recommences discharge
after terminating operations.
Regional Administrator means the Regional Administrator of the
appropriate Regional Office of the Environmental Protection Agency or
the authorized representative of the Regional Administrator.
Schedule of compliance means a schedule of remedial measures
included in a ``permit'', including an enforceable sequence of interim
requirements (for example, actions, operations, or milestone events)
leading to compliance with the CWA and regulations.
[[Page 173]]
Secondary industry category means any industry category which is not
a ``primary industry category.''
Secretary means the Secretary of the Army, acting through the Chief
of Engineers.
Septage means the liquid and solid material pumped from a septic
tank, cesspool, or similar domestic sewage treatment system, or a
holding tank when the system is cleaned or maintained.
Sewage from vessels means human body wastes and the wastes from
toilets and other receptacles intended to receive or retain body wastes
that are discharged from vessels and regulated under section 312 of CWA,
except that with respect to commercial vessels on the Great Lakes this
term includes graywater. For the purposes of this definition,
``graywater'' means galley, bath, and shower water.
Sewage Sludge means any solid, semi-solid, or liquid residue removed
during the treatment of municipal waste water or domestic sewage. Sewage
sludge includes, but is not limited to, solids removed during primary,
secondary, or advanced waste water treatment, scum, septage, portable
toilet pumpings, type III marine sanitation device pumpings (33 CFR part
159), and sewage sludge products. Sewage sludge does not include grit or
screenings, or ash generated during the incineration of sewage sludge.
Sewage sludge use or disposal practice means the collection,
storage, treatment, transportation, processing, monitoring, use, or
disposal of sewage sludge.
Silvicultural point source is defined at Sec. 122.27.
Site means the land or water area where any ``facility or activity''
is physically located or conducted, including adjacent land used in
connection with the facility or activity.
Sludge-only facility means any ``treatment works treating domestic
sewage'' whose methods of sewage sludge use or disposal are subject to
regulations promulgated pursuant to section 405(d) of the CWA and is
required to obtain a permit under Sec. 122.1(b)(2).
Standards for sewage sludge use or disposal means the regulations
promulgated pursuant to section 405(d) of the CWA which govern minimum
requirements for sludge quality, management practices, and monitoring
and reporting applicable to sewage sludge or the use or disposal of
sewage sludge by any person.
State means any of the 50 States, the District of Columbia, Guam,
the Commonwealth of Puerto Rico, the Virgin Islands, American Samoa, the
Commonwealth of the Northern Mariana Islands, the Trust Territory of the
Pacific Islands, or an Indian Tribe as defined in these regulations
which meets the requirements of Sec. 123.31 of this chapter.
State Director means the chief administrative officer of any State
or interstate agency operating an ``approved program,'' or the delegated
representative of the State Director. If responsibility is divided among
two or more State or interstate agencies, ``State Director'' means the
chief administrative officer of the State or interstate agency
authorized to perform the particular procedure or function to which
reference is made.
State/EPA Agreement means an agreement between the Regional
Administrator and the State which coordinates EPA and State activities,
responsibilities and programs including those under the CWA programs.
Storm water is defined at Sec. 122.26(b)(13).
Storm water discharge associated with industrial activity is defined
at Sec. 122.26(b)(14).
Total dissolved solids means the total dissolved (filterable) solids
as determined by use of the method specified in 40 CFR part 136.
Toxic pollutant means any pollutant listed as toxic under section
307(a)(1) or, in the case of ``sludge use or disposal practices,'' any
pollutant identified in regulations implementing section 405(d) of the
CWA.
Treatment works treating domestic sewage means a POTW or any other
sewage sludge or waste water treatment devices or systems, regardless of
ownership (including federal facilities), used in the storage,
treatment, recycling, and reclamation of municipal or domestic sewage,
including land dedicated for the disposal of sewage sludge.
[[Page 174]]
This definition does not include septic tanks or similar devices. For
purposes of this definition, ``domestic sewage'' includes waste and
waste water from humans or household operations that are discharged to
or otherwise enter a treatment works. In States where there is no
approved State sludge management program under section 405(f) of the
CWA, the Regional Administrator may designate any person subject to the
standards for sewage sludge use and disposal in 40 CFR part 503 as a
``treatment works treating domestic sewage,'' where he or she finds that
there is a potential for adverse effects on public health and the
environment from poor sludge quality or poor sludge handling, use or
disposal practices, or where he or she finds that such designation is
necessary to ensure that such person is in compliance with 40 CFR part
503.
TWTDS means ``treatment works treating domestic sewage.''
Upset is defined at Sec. 122.41(n).
Variance means any mechanism or provision under section 301 or 316
of CWA or under 40 CFR part 125, or in the applicable ``effluent
limitations guidelines'' which allows modification to or waiver of the
generally applicable effluent limitation requirements or time deadlines
of CWA. This includes provisions which allow the establishment of
alternative limitations based on fundamentally different factors or on
sections 301(c), 301(g), 301(h), 301(i), or 316(a) of CWA.
Waters of the United States or waters of the U.S. means:
(1) For purposes of the Clean Water Act, 33 U.S.C. 1251 et seq. and
its implementing regulations, subject to the exclusions in paragraph (2)
of this definition, the term ``waters of the United States'' means:
(i) All waters which are currently used, were used in the past, or
may be susceptible to use in interstate or foreign commerce, including
all waters which are subject to the ebb and flow of the tide;
(ii) All interstate waters, including interstate wetlands;
(iii) The territorial seas;
(iv) All impoundments of waters otherwise identified as waters of
the United States under this section;
(v) All tributaries, as defined in paragraph (3)(iii) of this
section, of waters identified in paragraphs (1)(i) through (iii) of this
section;
(vi) All waters adjacent to a water identified in paragraphs (1)(i)
through (v) of this definition, including wetlands, ponds, lakes,
oxbows, impoundments, and similar waters;
(vii) All waters in paragraphs (1)(vii)(A) through (E) of this
definition where they are determined, on a case-specific basis, to have
a significant nexus to a water identified in paragraphs (1)(i) through
(iii) of this definition. The waters identified in each of paragraphs
(1)(vii)(A) through (E) of this definition are similarly situated and
shall be combined, for purposes of a significant nexus analysis, in the
watershed that drains to the nearest water identified in paragraphs
(1)(i) through (iii) of this definition. Waters identified in this
paragraph shall not be combined with waters identified in paragraph
(1)(vi) of this definition when performing a significant nexus analysis.
If waters identified in this paragraph are also an adjacent water under
paragraph (1)(vi), they are an adjacent water and no case-specific
significant nexus analysis is required.
(A) Prairie potholes. Prairie potholes are a complex of glacially
formed wetlands, usually occurring in depressions that lack permanent
natural outlets, located in the upper Midwest.
(B) Carolina bays and Delmarva bays. Carolina bays and Delmarva bays
are ponded, depressional wetlands that occur along the Atlantic coastal
plain.
(C) Pocosins. Pocosins are evergreen shrub and tree dominated
wetlands found predominantly along the Central Atlantic coastal plain.
(D) Western vernal pools. Western vernal pools are seasonal wetlands
located in parts of California and associated with topographic
depression, soils with poor drainage, mild, wet winters and hot, dry
summers.
(E) Texas coastal prairie wetlands. Texas coastal prairie wetlands
are freshwater wetlands that occur as a mosaic of depressions, ridges,
intermound flats, and mima mound wetlands located along the Texas Gulf
Coast.
[[Page 175]]
(viii) All waters located within the 100-year floodplain of a water
identified in paragraphs (1)(i) through (iii) of this definition and all
waters located within 4,000 feet of the high tide line or ordinary high
water mark of a water identified in paragraphs (1)(i) through (v) of
this definition where they are determined on a case-specific basis to
have a significant nexus to a water identified in paragraphs (1)(i)
through (v) of this definition. For waters determined to have a
significant nexus, the entire water is a water of the United States if a
portion is located within the 100-year floodplain of a water identified
in (1)(i) through (iii) of this definition or within 4,000 feet of the
high tide line or ordinary high water mark. Waters identified in this
paragraph shall not be combined with waters identified in paragraph
(1)(vi) of this definition when performing a significant nexus analysis.
If waters identified in this paragraph are also an adjacent water under
paragraph (1)(vi), they are an adjacent water and no case-specific
significant nexus analysis is required.
(2) The following are not ``waters of the United States'' even where
they otherwise meet the terms of paragraphs (1)(iv) through (viii) of
this definition.
(i) Waste treatment systems, including treatment ponds or lagoons
designed to meet the requirements of the Clean Water Act. This exclusion
applies only to manmade bodies of water which neither were originally
created in waters of the United States (such as disposal area in
wetlands) nor resulted from the impoundment of waters of the United
States. [See Note 1 of this section.]
(ii) Prior converted cropland. Notwithstanding the determination of
an area's status as prior converted cropland by any other Federal
agency, for the purposes of the Clean Water Act, the final authority
regarding Clean Water Act jurisdiction remains with EPA.
(iii) The following ditches:
(A) Ditches with ephemeral flow that are not a relocated tributary
or excavated in a tributary.
(B) Ditches with intermittent flow that are not a relocated
tributary, excavated in a tributary, or drain wetlands.
(C) Ditches that do not flow, either directly or through another
water, into a water identified in paragraphs (1)(i) through (iii) of
this definition.
(iv) The following features:
(A) Artificially irrigated areas that would revert to dry land
should application of water to that area cease;
(B) Artificial, constructed lakes and ponds created in dry land such
as farm and stock watering ponds, irrigation ponds, settling basins,
fields flooded for rice growing, log cleaning ponds, or cooling ponds;
(C) Artificial reflecting pools or swimming pools created in dry
land;
(D) Small ornamental waters created in dry land;
(E) Water-filled depressions created in dry land incidental to
mining or construction activity, including pits excavated for obtaining
fill, sand, or gravel that fill with water;
(F) Erosional features, including gullies, rills, and other
ephemeral features that do not meet the definition of tributary, non-
wetland swales, and lawfully constructed grassed waterways; and
(G) Puddles.
(v) Groundwater, including groundwater drained through subsurface
drainage systems.
(vi) Stormwater control features constructed to convey, treat, or
store stormwater that are created in dry land.
(vii) Wastewater recycling structures constructed in dry land;
detention and retention basins built for wastewater recycling;
groundwater recharge basins; percolation ponds built for wastewater
recycling; and water distributary structures built for wastewater
recycling.
(3) In this definition, the following terms apply:
(i) Adjacent. The term adjacent means bordering, contiguous, or
neighboring a water identified in paragraphs (1)(i) through (v) of this
definition, including waters separated by constructed dikes or barriers,
natural 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.
[[Page 176]]
Adjacency is not limited to waters located laterally to a water
identified in paragraphs (1)(i) through (v) of this definition. Adjacent
waters also include all waters that connect segments of a water
identified in paragraphs (1)(i) through (v) or are located at the head
of a water identified in paragraphs (1)(i) through (v) of this
definition and are bordering, contiguous, or neighboring such water.
Waters being used for established normal farming, ranching, and
silviculture activities (33 U.S.C. 1344(f)) are not adjacent.
(ii) Neighboring. The term neighboring means:
(A) All waters located within 100 feet of the ordinary high water
mark of a water identified in paragraphs (1)(i) through (v) of this
definition. The entire water is neighboring if a portion is located
within 100 feet of the ordinary high water mark;
(B) All waters located within the 100-year floodplain of a water
identified in paragraphs (1)(i) through (v) of this definition and not
more than 1,500 feet from the ordinary high water mark of such water.
The entire water is neighboring if a portion is located within 1,500
feet of the ordinary high water mark and within the 100-year floodplain;
(C) All waters located within 1,500 feet of the high tide line of a
water identified in paragraphs (1)(i) or (iii) of this definition, and
all waters within 1,500 feet of the ordinary high water mark of the
Great Lakes. The entire water is neighboring if a portion is located
within 1,500 feet of the high tide line or within 1,500 feet of the
ordinary high water mark of the Great Lakes.
(iii) Tributary and tributaries. The terms tributary and tributaries
each mean a water that contributes flow, either directly or through
another water (including an impoundment identified in paragraph (1)(iv)
of this definition), to a water identified in paragraphs (1)(i) through
(iii) of this definition that is characterized by the presence of the
physical indicators of a bed and banks and an ordinary high water mark.
These physical indicators demonstrate there is volume, frequency, and
duration of flow sufficient to create a bed and banks and an ordinary
high water mark, and thus to qualify as a tributary. A tributary can be
a natural, man-altered, or man-made water and includes waters such as
rivers, streams, canals, and ditches not excluded under paragraph (2) of
this definition. A water that otherwise qualifies as a tributary under
this definition does not lose its status as a tributary if, for any
length, there are one or more constructed breaks (such as bridges,
culverts, pipes, or dams), or one or more natural breaks (such as
wetlands along the run of a stream, debris piles, boulder fields, or a
stream that flows underground) so long as a bed and banks and an
ordinary high water mark can be identified upstream of the break. A
water that otherwise qualifies as a tributary under this definition does
not lose its status as a tributary if it contributes flow through a
water of the United States that does not meet the definition of
tributary or through a non-jurisdictional water to a water identified in
paragraphs (1)(i) through (iii) of this definition.
(iv) Wetlands. The term wetlands means those areas that are
inundated or saturated by surface or groundwater at a frequency and
duration sufficient to support, and that under normal circumstances do
support, a prevalence of vegetation typically adapted for life in
saturated soil conditions. Wetlands generally include swamps, marshes,
bogs, and similar areas.
(v) Significant nexus. The term significant nexus means that a
water, including wetlands, either alone or in combination with other
similarly situated waters in the region, significantly affects the
chemical, physical, or biological integrity of a water identified in
paragraphs (1)(i) through (iii) of this definition. The term ``in the
region'' means the watershed that drains to the nearest water identified
in paragraphs (1)(i) through (iii) of this definition. For an effect to
be significant, it must be more than speculative or insubstantial.
Waters are similarly situated when they function alike and are
sufficiently close to function together in affecting downstream waters.
For purposes of determining whether or not a water has a significant
nexus, the water's effect on downstream (1)(i) through (iii) waters
shall be assessed by evaluating the aquatic functions
[[Page 177]]
identified in paragraphs (3)(v)(A) through (I) of this definition. A
water has a significant nexus when any single function or combination of
functions performed by the water, alone or together with similarly
situated waters in the region, contributes significantly to the
chemical, physical, or biological integrity of the nearest water
identified in paragraphs (1)(i) through (iii) of this definition.
Functions relevant to the significant nexus evaluation are the
following:
(A) Sediment trapping,
(B) Nutrient recycling,
(C) Pollutant trapping, transformation, filtering, and transport,
(D) Retention and attenuation of flood waters,
(E) Runoff storage,
(F) Contribution of flow,
(G) Export of organic matter,
(H) Export of food resources, and
(I) Provision of life cycle dependent aquatic habitat (such as
foraging, feeding, nesting, breeding, spawning, or use as a nursery
area) for species located in a water identified in paragraphs (1)(i)
through (iii) of this definition.
(vi) Ordinary high water mark. The term ordinary high water mark
means that line on the shore established by the fluctuations of water
and indicated by physical characteristics such as a clear, natural line
impressed on the bank, shelving, changes in the character of soil,
destruction of terrestrial vegetation, the presence of litter and
debris, or other appropriate means that consider the characteristics of
the surrounding areas.
(vii) High tide line. The term high tide line means the line of
intersection of the land with the water's surface at the maximum height
reached by a rising tide. The high tide line may be determined, in the
absence of actual data, by a line of oil or scum along shore objects, a
more or less continuous deposit of fine shell or debris on the foreshore
or berm, other physical markings or characteristics, vegetation lines,
tidal gages, or other suitable means that delineate the general height
reached by a rising tide. The line encompasses spring high tides and
other high tides that occur with periodic frequency but does not include
storm surges in which there is a departure from the normal or predicted
reach of the tide due to the piling up of water against a coast by
strong winds such as those accompanying a hurricane or other intense
storm.
(4) Applicability date. This definition is applicable beginning on
February 6, 2020.
Whole effluent toxicity means the aggregate toxic effect of an
effluent measured directly by a toxicity test.
(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; 80 FR 37114, June 29, 2015; 83 FR 730, Jan. 8, 2018; 83 FR 5208,
Feb. 6, 2018; 84 FR 3336, Feb. 12, 2019]
Editorial Note: The sentence beginning with ``This exclusion applies
. . .'' appearing in Sec. 122.2 within the definition of ``Waters of
the United States'' was stayed by the Environmental Protection Agency at
45 FR 48620, July 21, 1980 and continued at 48 FR 14153, April 1, 1983.
The amendment published at 80 FR 37114, June 29, 2015 continues and
reaffirms the indefinite stay.
Sec. 122.3 Exclusions.
The following discharges do not require NPDES permits:
(a) Any discharge of sewage from vessels, effluent from properly
functioning marine engines, laundry, shower, and galley sink wastes, or
any other discharge incidental to the normal operation of a vessel. This
exclusion does not apply to rubbish, trash, garbage, or other such
materials discharged overboard; nor to other discharges when the vessel
is operating in a capacity other than as a means of transportation such
as when used as an energy or mining facility, a storage facility or a
seafood processing facility, or when secured to a storage facility or a
seafood processing facility, or when secured to the bed of the ocean,
contiguous zone or waters of the United States for the purpose of
mineral or oil exploration or development.
(b) Discharges of dredged or fill material into waters of the United
States
[[Page 178]]
which are regulated under section 404 of CWA.
(c) The introduction of sewage, industrial wastes or other
pollutants into publicly owned treatment works by indirect dischargers.
Plans or agreements to switch to this method of disposal in the future
do not relieve dischargers of the obligation to have and comply with
permits until all discharges of pollutants to waters of the United
States are eliminated. (See also Sec. 122.47(b)). This exclusion does
not apply to the introduction of pollutants to privately owned treatment
works or to other discharges through pipes, sewers, or other conveyances
owned by a State, municipality, or other party not leading to treatment
works.
(d) Any discharge in compliance with the instructions of an On-Scene
Coordinator pursuant to 40 CFR part 300 (The National Oil and Hazardous
Substances Pollution Contingency Plan) or 33 CFR 153.10(e) (Pollution by
Oil and Hazardous Substances).
(e) Any introduction of pollutants from non point-source
agricultural and silvicultural activities, including storm water runoff
from orchards, cultivated crops, pastures, range lands, and forest
lands, but not discharges from concentrated animal feeding operations as
defined in Sec. 122.23, discharges from concentrated aquatic animal
production facilities as defined in Sec. 122.24, discharges to
aquaculture projects as defined in Sec. 122.25, and discharges from
silvicultural point sources as defined in Sec. 122.27.
(f) Return flows from irrigated agriculture.
(g) Discharges into a privately owned treatment works, except as the
Director may otherwise require under Sec. 122.44(m).
(h) [Reserved]
(i) Discharges from a water transfer. Water transfer means an
activity that conveys or connects waters of the United States without
subjecting the transferred water to intervening industrial, municipal,
or commercial use. This exclusion does not apply to pollutants
introduced by the water transfer 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]
Sec. 122.4 Prohibitions (applicable to State NPDES programs,
see Sec. 123.25).
No permit may be issued:
(a) When the conditions of the permit do not provide for compliance
with the applicable requirements of CWA, or regulations promulgated
under CWA;
(b) When the applicant is required to obtain a State or other
appropriate certification under section 401 of CWA and Sec. 124.53 and
that certification has not been obtained or waived;
(c) By the State Director where the Regional Administrator has
objected to issuance of the permit under Sec. 123.44;
(d) When the imposition of conditions cannot ensure compliance with
the applicable water quality requirements of all affected States;
(e) When, in the judgment of the Secretary, anchorage and navigation
in or on any of the waters of the United States would be substantially
impaired by the discharge;
(f) For the discharge of any radiological, chemical, or biological
warfare agent or high-level radioactive waste;
(g) For any discharge inconsistent with a plan or plan amendment
approved under section 208(b) of CWA;
(h) For any discharge to the territorial sea, the waters of the
contiguous zone, or the oceans in the following circumstances:
(1) Before the promulgation of guidelines under section 403(c) of
CWA (for determining degradation of the waters of the territorial seas,
the contiguous zone, and the oceans) unless the Director determines
permit issuance to be in the public interest; or
(2) After promulgation of guidelines under section 403(c) of CWA,
when insufficient information exists to make a reasonable judgment
whether the discharge complies with them.
(i) To a new source or a new discharger, if the discharge from its
construction or operation will cause or contribute to the violation of
water
[[Page 179]]
quality standards. The owner or operator of a new source or new
discharger proposing to discharge into a water segment which does not
meet applicable water quality standards or is not expected to meet those
standards even after the application of the effluent limitations
required by sections 301(b)(1)(A) and 301(b)(1)(B) of CWA, and for which
the State or interstate agency has performed a pollutants load
allocation for the pollutant to be discharged, must demonstrate, before
the close of the public comment period, that:
(1) There are sufficient remaining pollutant load allocations to
allow for the discharge; and
(2) The existing dischargers into that segment are subject to
compliance schedules designed to bring the segment into compliance with
applicable water quality standards. The Director may waive the
submission of information by the new source or new discharger required
by paragraph (i) of this section if the Director determines that the
Director already has adequate information to evaluate the request. An
explanation of the development of limitations to meet the criteria of
this paragraph (i)(2) is to be included in the fact sheet to the permit
under Sec. 124.56(b)(1) of this chapter.
[48 FR 14153, Apr. 1, 1983, as amended at 50 FR 6940, Feb. 19, 1985; 65
FR 30905, May 15, 2000]
Sec. 122.5 Effect of a permit.
(a) Applicable to State programs, see Sec. 123.25. (1) Except for
any toxic effluent standards and prohibitions imposed under section 307
of the CWA and ``standards for sewage sludge use or disposal'' under
405(d) of the CWA, compliance with a permit during its term constitutes
compliance, for purposes of enforcement, with sections 301, 302, 306,
307, 318, 403, and 405 (a)-(b) of CWA. However, a permit may be
modified, revoked and reissued, or terminated during its term for cause
as set forth in Sec. Sec. 122.62 and 122.64.
(2) Compliance with a permit condition which implements a particular
``standard for sewage sludge use or disposal'' shall be an affirmative
defense in any enforcement action brought for a violation of that
``standard for sewage sludge use or disposal'' pursuant to sections
405(e) and 309 of the CWA.
(b) Applicable to State programs, See Sec. 123.25. The issuance of
a permit does not convey any property rights of any sort, or any
exclusive privilege.
(c) The issuance of a permit does not authorize any injury to
persons or property or invasion of other private rights, or any
infringement of State or local law or regulations.
[48 FR 14153, Apr. 1, 1983, as amended at 54 FR 18782, May 2, 1989]
Sec. 122.6 Continuation of expiring permits.
(a) EPA permits. When EPA is the permit-issuing authority, the
conditions of an expired permit continue in force under 5 U.S.C. 558(c)
until the effective date of a new permit (see Sec. 124.15) if:
(1) The permittee has submitted a timely application under Sec.
122.21 which is a complete (under Sec. 122.21(e)) application for a new
permit; and
(2) The Regional Administrator, through no fault of the permittee
does not issue a new permit with an effective date under Sec. 124.15 on
or before the expiration date of the previous permit (for example, when
issuance is impracticable due to time or resource constraints).
(b) Effect. Permits continued under this section remain fully
effective and enforceable.
(c) Enforcement. When the permittee is not in compliance with the
conditions of the expiring or expired permit the Regional Administrator
may choose to do any or all of the following:
(1) Initiate enforcement action based upon the permit which has been
continued;
(2) Issue a notice of intent to deny the new permit under Sec.
124.6. If the permit is denied, the owner or operator would then be
required to cease the activities authorized by the continued permit or
be subject to enforcement action for operating without a permit;
(3) Issue a new permit under part 124 with appropriate conditions;
or
(4) Take other actions authorized by these regulations.
(d) State continuation. (1) An EPA-issued permit does not continue
in force beyond its expiration date under Federal law if at that time a
State is
[[Page 180]]
the permitting authority. States authorized to administer the NPDES
program may continue either EPA or State-issued permits until the
effective date of the new permits, if State law allows. Otherwise, the
facility or activity is operating without a permit from the time of
expiration of the old permit to the effective date of the State-issued
new permit.
[48 FR 14153, Apr. 1, 1983, as amended at 50 FR 6940, Feb. 19, 1985]
Sec. 122.7 Confidentiality of information.
(a) In accordance with 40 CFR part 2, any information submitted to
EPA pursuant to these regulations may be claimed as confidential by the
submitter. Any such claim must be asserted at the time of submission in
the manner prescribed on the application form or instructions or, in the
case of other submissions, by stamping the words ``confidential business
information'' on each page containing such information. If no claim is
made at the time of submission, EPA may make the information available
to the public without further notice. If a claim is asserted, the
information will be treated in accordance with the procedures in 40 CFR
part 2 (Public Information).
(b) Applicable to State programs, see Sec. 123.25. Claims of
confidentiality for the following information will be denied:
(1) The name and address of any permit applicant or permittee;
(2) Permit applications, permits, and effluent data.
(c) Applicable to State programs, see Sec. 123.25. Information
required by NPDES application forms provided by the Director under Sec.
122.21 may not be claimed confidential. This includes information
submitted on the forms themselves and any attachments used to supply
information required by the forms.
Subpart B_Permit Application and Special NPDES Program Requirements
Sec. 122.21 Application for a permit (applicable to State programs,
see Sec. 123.25).
(a) Duty to apply. (1) Any person who discharges or proposes to
discharge pollutants or who owns or operates a ``sludge-only facility''
whose sewage sludge use or disposal practice is regulated by part 503 of
this chapter, and who does not have an effective permit, except persons
covered by general permits under Sec. 122.28, excluded under Sec.
122.3, or a user of a privately owned treatment works unless the
Director requires otherwise under Sec. 122.44(m), must submit a
complete application to the Director in accordance with this section and
part 124 of this chapter. The requirements for concentrated animal
feeding operations are described in Sec. 122.23(d).
(2) Application Forms: (i) All applicants for EPA-issued permits
must submit applications on EPA permit application forms. More than one
application form may be required from a facility depending on the number
and types of discharges or outfalls found there. Application forms may
be obtained by contacting: U.S. EPA, Mail Code 4203M, 1200 Pennsylvania
Ave. NW, Washington, DC 20460 or by visiting http://www.epa.gov/npdes.
Applications for EPA-issued permits must be submitted as follows:
(A) All applicants, other than POTWs, TWTDS, vessels, and pesticide
applicators must submit Form 1.
(B) Applicants for new and existing POTWs must submit the
information contained in paragraph (j) of this section using Form 2A or
other form provided by the director.
(C) Applicants for concentrated animal feeding operations or aquatic
animal production facilities must submit Form 2B.
(D) Applicants for existing industrial facilities (including
manufacturing facilities, commercial facilities, mining activities, and
silvicultural activities), must submit Form 2C.
(E) Applicants for new industrial facilities that discharge process
wastewater must submit Form 2D.
[[Page 181]]
(F) Applicants for new and existing industrial facilities that
discharge only nonprocess wastewater must submit Form 2E.
(G) Applicants for new and existing facilities whose discharge is
composed entirely of storm water associated with industrial activity
must submit Form 2F, unless exempted by Sec. 122.26(c)(1)(ii). If the
discharge is composed of storm water and non-storm water, the applicant
must also submit, Forms 2C, 2D, and/or 2E, as appropriate (in addition
to Form 2F).
(H) Applicants for new and existing TWTDS, subject to paragraph
(c)(2)(i) of this section must submit the application information
required by paragraph (q) of this section, using Form 2S or other form
provided by the director.
(ii) The application information required by paragraph (a)(2)(i) of
this section may be electronically submitted if such method of submittal
is approved by EPA or the Director.
(iii) Applicants can obtain copies of these forms by contacting the
Water Management Divisions (or equivalent division which contains the
NPDES permitting function) of the EPA Regional Offices. The Regional
Offices' addresses can be found at Sec. 1.7 of this chapter.
(iv) Applicants for State-issued permits must use State forms which
must require at a minimum the information listed in the appropriate
paragraphs of this section.
(b) Who applies? When a facility or activity is owned by one person
but is operated by another person, it is the operator's duty to obtain a
permit.
(c) Time to apply. (1) Any person proposing a new discharge, shall
submit an application at least 180 days before the date on which the
discharge is to commence, unless permission for a later date has been
granted by the Director. Facilities proposing a new discharge of storm
water associated with industrial activity shall submit an application
180 days before that facility commences industrial activity which may
result in a discharge of storm water associated with that industrial
activity. Facilities described under Sec. 122.26(b)(14)(x) or
(b)(15)(i) shall submit applications at least 90 days before the date on
which construction is to commence. Different submittal dates may be
required under the terms of applicable general permits. Persons
proposing a new discharge are encouraged to submit their applications
well in advance of the 90 or 180 day requirements to avoid delay. See
also paragraph (k) of this section and Sec. 122.26(c)(1)(i)(G) and
(c)(1)(ii).
(2) Permits under section 405(f) of CWA. All TWTDS whose sewage
sludge use or disposal practices are regulated by part 503 of this
chapter must submit permit applications according to the applicable
schedule in paragraphs (c)(2)(i) or (ii) of this section.
(i) A TWTDS with a currently effective NPDES permit must submit a
permit application at the time of its next NPDES permit renewal
application. Such information must be submitted in accordance with
paragraph (d) of this section.
(ii) Any other TWTDS not addressed under paragraph (c)(2)(i) of this
section must submit the information listed in paragraphs (c)(2)(ii)(A)
through (E) of this section to the Director within 1 year after
publication of a standard applicable to its sewage sludge use or
disposal practice(s), using Form 2S or another form provided by the
Director. The Director will determine when such TWTDS must submit a full
permit application.
(A) The TWTDS's name, mailing address, location, and status as
federal, State, private, public or other entity;
(B) The applicant's name, address, telephone number, electronic mail
address and ownership status;
(C) A description of the sewage sludge use or disposal practices.
Unless the sewage sludge meets the requirements of paragraph (q)(8)(iv)
of this section, the description must include the name and address of
any facility where sewage sludge is sent for treatment or disposal, and
the location of any land application sites;
(D) Annual amount of sewage sludge generated, treated, used or
disposed (estimated dry weight basis); and
(E) The most recent data the TWTDS may have on the quality of the
sewage sludge.
(iii) Notwithstanding paragraphs (c)(2)(i) or (ii) of this section,
the Director may require permit applications
[[Page 182]]
from any TWTDS at any time if the Director determines that a permit is
necessary to protect public health and the environment from any
potential adverse effects that may occur from toxic pollutants in sewage
sludge.
(iv) Any TWTDS that commences operations after promulgation of an
applicable ``standard for sewage sludge use or disposal'' must submit an
application to the Director at least 180 days prior to the date proposed
for commencing operations.
(d) Duty to reapply. (1) Any POTW with a currently effective permit
shall submit a new application at least 180 days before the expiration
date of the existing permit, unless permission for a later date has been
granted by the Director. (The Director shall not grant permission for
applications to be submitted later than the expiration date of the
existing permit.)
(2) All other permittees with currently effective permits shall
submit a new application 180 days before the existing permit expires,
except that:
(i) The Regional Administrator may grant permission to submit an
application later than the deadline for submission otherwise applicable,
but no later than the permit expiration date; and
(3) [Reserved]
(e) Completeness. (1) The Director shall not issue a permit before
receiving a complete application for a permit except for NPDES general
permits. An application for a permit is complete when the Director
receives an application form and any supplemental information which are
completed to his or her satisfaction. The completeness of any
application for a permit shall be judged independently of the status of
any other permit application or permit for the same facility or
activity. For EPA administered NPDES programs, an application which is
reviewed under Sec. 124.3 of this chapter is complete when the Director
receives either a complete application or the information listed in a
notice of deficiency.
(2) A permit application shall not be considered complete if a
permitting authority has waived application requirements under
paragraphs (j) or (q) of this section and EPA has disapproved the waiver
application. If a waiver request has been submitted to EPA more than 210
days prior to permit expiration and EPA has not disapproved the waiver
application 181 days prior to permit expiration, the permit application
lacking the information subject to the waiver application shall be
considered complete.
(3) Except as specified in 122.21(e)(3)(ii), a permit application
shall not be considered complete unless all required quantitative data
are collected in accordance with sufficiently sensitive analytical
methods approved under 40 CFR part 136 or required under 40 CFR chapter
I, subchapter N or O.
(i) For the purposes of this requirement, a method approved under 40
CFR part 136 or required under 40 CFR chapter I, subchapter N or O is
``sufficiently sensitive'' when:
(A) The method minimum level (ML) is at or below the level of the
applicable water quality criterion for the measured pollutant or
pollutant parameter; or
(B) The method ML is above the applicable water quality criterion,
but the amount of the pollutant or pollutant parameter in a facility's
discharge is high enough that the method detects and quantifies the
level of the pollutant or pollutant parameter in the discharge; or
(C) The method has the lowest ML of the analytical methods approved
under 40 CFR part 136 or required under 40 CFR chapter I, subchapter N
or O for the measured pollutant or pollutant parameter.
Note to paragraph (e)(3)(i): Consistent with 40 CFR part 136,
applicants have the option of providing matrix or sample specific
minimum levels rather than the published levels. Further, where an
applicant can demonstrate that, despite a good faith effort to use a
method that would otherwise meet the definition of ``sufficiently
sensitive'', the analytical results are not consistent with the QA/QC
specifications for that method, then the Director may determine that the
method is not performing adequately and the applicant should select a
different method from the remaining EPA-approved methods that is
sufficiently sensitive consistent with 40 CFR 122.21(e)(3)(i). Where no
other EPA-approved methods exist, the applicant should select a method
consistent with 40 CFR 122.21(e)(3)(ii).
(ii) When there is no analytical method that has been approved under
40
[[Page 183]]
CFR part 136, required under 40 CFR chapter I, subchapter N or O, and is
not otherwise required by the Director, the applicant may use any
suitable method but shall provide a description of the method. When
selecting a suitable method, other factors such as a method's precision,
accuracy, or resolution, may be considered when assessing the
performance of the method.
(f) Information requirements. All applicants for NPDES permits,
other than POTWs and other TWTDS, vessels, and pesticide applicators,
must provide the information in paragraphs (f)(1) through (10) of this
section to the Director, using the application form provided by the
Director. Additional information required of applicants is set forth in
paragraphs (g) through (k) and (q) through (r) 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 and up to four NAICS codes that best reflect the
principal products or services provided by the facility.
(4) The operator's name, address, telephone number, electronic mail
address, ownership status, and status as Federal, State, private,
public, or other entity.
(5) Whether the facility is located on Indian lands.
(6) A listing of all permits or construction approvals received or
applied for under any of the following programs:
(i) Hazardous Waste Management program under RCRA.
(ii) UIC program under SDWA.
(iii) NPDES program under CWA.
(iv) Prevention of Significant Deterioration (PSD) program under the
Clean Air Act.
(v) Nonattainment program under the Clean Air Act.
(vi) National Emission Standards for Hazardous Pollutants (NESHAPS)
preconstruction approval under the Clean Air Act.
(vii) Ocean dumping permits under the Marine Protection Research and
Sanctuaries Act.
(viii) Dredge or fill permits under section 404 of CWA.
(ix) Other relevant environmental permits, including State permits.
(7) A topographic map (or other map if a topographic map is
unavailable) extending one mile beyond the property boundaries of the
source, depicting the facility and each of its intake and discharge
structures; each of its hazardous waste treatment, storage, or disposal
facilities; each well where fluids from the facility are injected
underground; and those wells, springs, other surface water bodies, and
drinking water wells listed in public records or otherwise known to the
applicant in the map area.
(8) A brief description of the nature of the business.
(9) An indication of whether the facility uses cooling water and the
source of the cooling water.
(10) An indication of whether the facility is requesting any of the
variances at 40 CFR 122.21(m), if known at the time of application.
(g) Application requirements for existing manufacturing, commercial,
mining, and silvicultural dischargers. Existing manufacturing,
commercial, mining, and silvicultural dischargers applying for NPDES
permits, except for those facilities subject to the requirements of
Sec. 122.21(h), shall provide the following information to the
Director, using application forms provided by the Director.
(1) Outfall location. The latitude and longitude to the nearest 15
seconds and the name of the receiving water.
(2) Line drawing. A line drawing of the water flow through the
facility with a water balance, showing operations contributing
wastewater to the effluent and treatment units. Similar processes,
operations, or production areas may be indicated as a single unit,
labeled to correspond to the more detailed identification under
paragraph (g)(3) of this section. The water balance must show
approximate average flows at intake and discharge points and between
units, including treatment units. If a water balance cannot be
determined (for example, for certain mining activities), the applicant
may provide instead a pictorial description of the nature and amount of
any sources of
[[Page 184]]
water and any collection and treatment measures.
(3) Average flows and treatment. A narrative identification of each
type of process, operation, or production area which contributes
wastewater to the effluent for each outfall, including process
wastewater, cooling water, and stormwater runoff; the average flow which
each process contributes; and a description of the treatment the
wastewater receives, including the ultimate disposal of any solid or
fluid wastes other than by discharge. Processes, operations, or
production areas may be described in general terms (for example, ``dye-
making reactor'', ``distillation tower''). For a privately owned
treatment works, this information shall include the identity of each
user of the treatment works. The average flow of point sources composed
of storm water may be estimated. The basis for the rainfall event and
the method of estimation must be indicated.
(4) Intermittent flows. If any of the discharges described in
paragraph (g)(3) of this section are intermittent or seasonal, a
description of the frequency, duration and flow rate of each discharge
occurrence (except for stormwater runoff, spillage or leaks).
(5) Maximum production. If an effluent guideline promulgated under
section 304 of CWA applies to the applicant and is expressed in terms of
production (or other measure of operation), a reasonable measure of the
applicant's actual production reported in the units used in the
applicable effluent guideline. The reported measure must reflect the
actual production of the facility as required by Sec. 122.45(b)(2).
(6) Improvements. If the applicant is subject to any present
requirements or compliance schedules for construction, upgrading or
operation of waste treatment equipment, an identification of the
abatement requirement, a description of the abatement project, and a
listing of the required and projected final compliance dates.
(7) Effluent characteristics. (i) Information on the discharge of
pollutants specified in this paragraph (g)(7) (except information on
storm water discharges which is to be provided as specified in Sec.
122.26). When ``quantitative data'' for a pollutant are required, the
applicant must collect a sample of effluent and analyze it for the
pollutant in accordance with analytical methods approved under Part 136
of this chapter unless use of another method is required for the
pollutant under 40 CFR subchapters N or O. When no analytical method is
approved under Part 136 or required under subchapters N or O, the
applicant may use any suitable method but must provide a description of
the method. When an applicant has two or more outfalls with
substantially identical effluents, the Director may allow the applicant
to test only one outfall and report that quantitative data as applying
to the substantially identical outfall. The requirements in paragraphs
(g)(7)(vi) and (vii) of this section state that an applicant must
provide quantitative data for certain pollutants known or believed to be
present do not apply to pollutants present in a discharge solely as the
result of their presence in intake water; however, an applicant must
report such pollutants as present. When paragraph (g)(7) of this section
requires analysis of pH, temperature, cyanide, total phenols, residual
chlorine, oil and grease, fecal coliform (including E. coli), and
Enterococci (previously known as fecal streptococcus at Sec. 122.26
(d)(2)(iii)(A)(3)), or volatile organics, grab samples must be collected
for those pollutants. For all other pollutants, a 24-hour composite
sample, using a minimum of four (4) grab samples, must be used unless
specified otherwise at 40 CFR Part 136. However, a minimum of one grab
sample may be taken for effluents from holding ponds or other
impoundments with a retention period greater than 24 hours. In addition,
for discharges other than storm water discharges, the Director may waive
composite sampling for any outfall for which the applicant demonstrates
that the use of an automatic sampler is infeasible and that the minimum
of four (4) grab samples will be a representative sample of the effluent
being discharged. Results of analyses of individual grab samples for any
parameter may be averaged to obtain the daily average. Grab samples that
are not required to be analyzed immediately (see Table II at 40 CFR
136.3 (e))
[[Page 185]]
may be composited in the laboratory, provided that container,
preservation, and holding time requirements are met (see Table II at 40
CFR 136.3 (e)) and that sample integrity is not compromised by
compositing.
(ii) Storm water discharges. For storm water discharges, all samples
shall be collected from the discharge resulting from a storm event that
is greater than 0.1 inch and at least 72 hours from the previously
measurable (greater than 0.1 inch rainfall) storm event. Where feasible,
the variance in the duration of the event and the total rainfall of the
event should not exceed 50 percent from the average or median rainfall
event in that area. For all applicants, a flow-weighted composite shall
be taken for either the entire discharge or for the first three hours of
the discharge. The flow-weighted composite sample for a storm water
discharge may be taken with a continuous sampler or as a combination of
a minimum of three sample aliquots taken in each hour of discharge for
the entire discharge or for the first three hours of the discharge, with
each aliquot being separated by a minimum period of fifteen minutes
(applicants submitting permit applications for storm water discharges
under Sec. 122.26(d) may collect flow-weighted composite samples using
different protocols with respect to the time duration between the
collection of sample aliquots, subject to the approval of the Director).
However, a minimum of one grab sample may be taken for storm water
discharges from holding ponds or other impoundments with a retention
period greater than 24 hours. For a flow-weighted composite sample, only
one analysis of the composite of aliquots is required. For storm water
discharge samples taken from discharges associated with industrial
activities, quantitative data must be reported for the grab sample taken
during the first thirty minutes (or as soon thereafter as practicable)
of the discharge for all pollutants specified in Sec. 122.26(c)(1). For
all storm water permit applicants taking flow-weighted composites,
quantitative data must be reported for all pollutants specified in Sec.
122.26 except pH, temperature, cyanide, total phenols, residual
chlorine, oil and grease, fecal coliform, and fecal streptococcus. The
Director may allow or establish appropriate site-specific sampling
procedures or requirements, including sampling locations, the season in
which the sampling takes place, the minimum duration between the
previous measurable storm event and the storm event sampled, the minimum
or maximum level of precipitation required for an appropriate storm
event, the form of precipitation sampled (snow melt or rain fall),
protocols for collecting samples under part 136 of this chapter, and
additional time for submitting data on a case-by-case basis. An
applicant is expected to ``know or have reason to believe'' that a
pollutant is present in an effluent based on an evaluation of the
expected use, production, or storage of the pollutant, or on any
previous analyses for the pollutant. (For example, any pesticide
manufactured by a facility may be expected to be present in contaminated
storm water runoff from the facility.)
(iii) Reporting requirements. Every applicant must report
quantitative data for every outfall for the following pollutants:
Biochemical Oxygen Demand (BOD5)
Chemical Oxygen Demand
Total Organic Carbon
Total Suspended Solids
Ammonia (as N)
Temperature (both winter and summer)
pH
(iv) The Director may waive the reporting requirements for
individual point sources or for a particular industry category for one
or more of the pollutants listed in paragraph (g)(7)(iii) of this
section if the applicant has demonstrated that such a waiver is
appropriate because information adequate to support issuance of a permit
can be obtained with less stringent requirements.
(v) Each applicant with processes in one or more primary industry
category (see appendix A of this part) contributing to a discharge must
report quantitative data for the following pollutants in each outfall
containing process wastewater:
(A) The organic toxic pollutants in the fractions designated in
table I of appendix D of this part for the applicant's industrial
category or categories
[[Page 186]]
unless the applicant qualifies as a small business under paragraph
(g)(8) of this section. Table II of appendix D of this part lists the
organic toxic pollutants in each fraction. The fractions result from the
sample preparation required by the analytical procedure which uses gas
chromatography/mass spectrometry. A determination that an applicant
falls within a particular industrial category for the purposes of
selecting fractions for testing is not conclusive as to the applicant's
inclusion in that category for any other purposes. See Notes 2, 3, and 4
of this section.
(B) The pollutants listed in table III of appendix D of this part
(the toxic metals, cyanide, and total phenols).
(vi)(A) Each applicant must indicate whether it knows or has reason
to believe that any of the pollutants in table IV of appendix D of this
part (certain conventional and nonconventional pollutants) is discharged
from each outfall. If an applicable effluent limitations guideline
either directly limits the pollutant or, by its express terms,
indirectly limits the pollutant through limitations on an indicator, the
applicant must report quantitative data. For every pollutant discharged
which is not so limited in an effluent limitations guideline, the
applicant must either report quantitative data or briefly describe the
reasons the pollutant is expected to be discharged.
(B) Each applicant must indicate whether it knows or has reason to
believe that any of the pollutants listed in table II or table III of
appendix D of this part (the toxic pollutants and total phenols) for
which quantitative data are not otherwise required under paragraph
(g)(7)(v) of this section are discharged from each outfall. For every
pollutant expected to be discharged in concentrations of 10 ppb or
greater the applicant must report quantitative data. For acrolein,
acrylonitrile, 2,4 dinitrophenol, and 2-methyl-4, 6 dinitrophenol, where
any of these four pollutants are expected to be discharged in
concentrations of 100 ppb or greater the applicant must report
quantitative data. For every pollutant expected to be discharged in
concentrations less than 10 ppb, or in the case of acrolein,
acrylonitrile, 2,4 dinitrophenol, and 2-methyl-4, 6 dinitrophenol, in
concentrations less than 100 ppb, the applicant must either submit
quantitative data or briefly describe the reasons the pollutant is
expected to be discharged. An applicant qualifying as a small business
under paragraph (g)(8) of this section is not required to analyze for
pollutants listed in table II of appendix D of this part (the organic
toxic pollutants).
(vii) Each applicant must indicate whether it knows or has reason to
believe that any of the pollutants in table V of appendix D of this part
(certain hazardous substances and asbestos) are discharged from each
outfall. For every pollutant expected to be discharged, the applicant
must briefly describe the reasons the pollutant is expected to be
discharged, and report any quantitative data it has for any pollutant.
(viii) Each applicant must report qualitative data, generated using
a screening procedure not calibrated with analytical standards, for
2,3,7,8-tetrachlorodibenzo-p-dioxin (TCDD) if it:
(A) Uses or manufactures 2,4,5-trichlorophenoxy acetic acid (2,4,5,-
T); 2-(2,4,5-trichlorophenoxy) propanoic acid (Silvex, 2,4,5,-TP); 2-
(2,4,5-trichlorophenoxy) ethyl, 2,2-dichloropropionate (Erbon); O,O-
dimethyl O-(2,4,5-trichlorophenyl) phosphorothioate (Ronnel); 2,4,5-
trichlorophenol (TCP); or hexachlorophene (HCP); or
(B) Knows or has reason to believe that TCDD is or may be present in
an effluent.
(ix) Where quantitative data are required in paragraphs (g)(7)(i)
through (viii) of this section, existing data may be used, if available,
in lieu of sampling done solely for the purpose of the application,
provided that: All data requirements are met; sampling was performed,
collected, and analyzed no more than four and one-half years prior to
submission; all data are representative of the discharge; and all
available representative data are considered in the values reported.
(8) Small business exemption. An application which qualifies as a
small business under one of the following criteria is exempt from the
requirements in
[[Page 187]]
paragraph (g)(7)(v)(A) or (g)(7)(vi)(A) of this section to submit
quantitative data for the pollutants listed in table II of appendix D of
this part (the organic toxic pollutants):
(i) For coal mines, a probable total annual production of less than
100,000 tons per year.
(ii) For all other applicants, gross total annual sales averaging
less than $100,000 per year (in second quarter 1980 dollars).
(9) Used or manufactured toxics. A listing of any toxic pollutant
which the applicant currently uses or manufactures as an intermediate or
final product or byproduct. The Director may waive or modify this
requirement for any applicant if the applicant demonstrates that it
would be unduly burdensome to identify each toxic pollutant and the
Director has adequate information to issue the permit.
(10) [Reserved]
(11) Biological toxicity tests. An identification of any biological
toxicity tests which the applicant knows or has reason to believe have
been made within the last 3 years on any of the applicant's discharges
or on a receiving water in relation to a discharge.
(12) Contract analyses. If a contract laboratory or consulting firm
performed any of the analyses required by paragraph (g)(7) of this
section, the identity of each laboratory or firm and the analyses
performed.
(13) Additional information. In addition to the information reported
on the application form, applicants shall provide to the Director, at
his or her request, such other information as the Director may
reasonably require to assess the discharges of the facility and to
determine whether to issue an NPDES permit. The additional information
may include additional quantitative data and bioassays to assess the
relative toxicity of discharges to aquatic life and requirements to
determine the cause of the toxicity.
(h) Application requirements for manufacturing, commercial, mining
and silvicultural facilities which discharge only non-process
wastewater. Except for stormwater discharges, all manufacturing,
commercial, mining and silvicultural dischargers applying for NPDES
permits which discharge only non-process wastewater not regulated by an
effluent limitations guideline or new source performance standard shall
provide the following information to the Director, using application
forms provided by the Director:
(1) Outfall location. Outfall number, latitude and longitude to the
nearest 15 seconds, and the name of the receiving water.
(2) Discharge date (for new dischargers). Date of expected
commencement of discharge.
(3) Type of waste. An identification of the general type of waste
discharged, or expected to be discharged upon commencement of
operations, including sanitary wastes, restaurant or cafeteria wastes,
or noncontact cooling water. An identification of cooling water
additives (if any) that are used or expected to be used upon
commencement of operations, along with their composition if existing
composition is available.
(4) Effluent characteristics. (i) Quantitative data for the
pollutants or parameters listed below, unless testing is waived by the
Director. The quantitative data may be data collected over the past 365
days, if they remain representative of current operations, and must
include maximum daily value, average daily value, and number of
measurements taken. The applicant must collect and analyze samples in
accordance with 40 CFR Part 136. When analysis of pH, temperature,
residual chlorine, oil and grease, or fecal coliform (including E.
coli), and Enterococci (previously known as fecal streptococcus) and
volatile organics is required in paragraphs (h)(4)(i)(A) through (K) of
this section, grab samples must be collected for those pollutants. For
all other pollutants, a 24-hour composite sample, using a minimum of
four (4) grab samples, must be used unless specified otherwise at 40 CFR
Part 136. For a composite sample, only one analysis of the composite of
aliquots is required. New dischargers must include estimates for the
pollutants or parameters listed below instead of actual sampling data,
along with the source of each estimate. All levels must be reported or
estimated as concentration and as total mass, except for flow, pH, and
temperature.
[[Page 188]]
(A) Biochemical Oxygen Demand (BOD5).
(B) Total Suspended Solids (TSS).
(C) Fecal Coliform (if believed present or if sanitary waste is or
will be discharged).
(D) Total Residual Chlorine (if chlorine is used).
(E) Oil and Grease.
(F) Chemical Oxygen Demand (COD) (if non-contact cooling water is or
will be discharged).
(G) Total Organic Carbon (TOC) (if non-contact cooling water is or
will be discharged).
(H) Ammonia (as N).
(I) Discharge Flow.
(J) pH.
(K) Temperature (Winter and Summer).
(ii) The Director may waive the testing and reporting requirements
for any of the pollutants or flow listed in paragraph (h)(4)(i) of this
section if the applicant submits a request for such a waiver before or
with his application which demonstrates that information adequate to
support issuance of a permit can be obtained through less stringent
requirements.
(iii) If the applicant is a new discharger, he must complete and
submit Item IV of Form 2e (see Sec. 122.21(h)(4)) by providing
quantitative data in accordance with that section no later than two
years after commencement of discharge. However, the applicant need not
complete those portions of Item IV requiring tests which he has already
performed and reported under the discharge monitoring requirements of
his NPDES permit.
(iv) The requirements of parts i and iii of this section that an
applicant must provide quantitative data or estimates of certain
pollutants do not apply to pollutants present in a discharge solely as a
result of their presence in intake water. However, an applicant must
report such pollutants as present. Net credit may be provided for the
presence of pollutants in intake water if the requirements of Sec.
122.45(g) are met.
(5) Flow. A description of the frequency of flow and duration of any
seasonal or intermittent discharge (except for stormwater runoff, leaks,
or spills).
(6) Treatment system. A brief description of any system used or to
be used.
(7) Optional information. Any additional information the applicant
wishes to be considered, such as influent data for the purpose of
obtaining ``net'' credits pursuant to Sec. 122.45(g).
(8) Certification. Signature of certifying official under Sec.
122.22.
(i) Application requirements for new and existing concentrated
animal feeding operations and aquatic animal production facilities. New
and existing concentrated animal feeding operations (defined in Sec.
122.23) and concentrated aquatic animal production facilities (defined
in Sec. 122.24) shall provide the following information to the
Director, using the application form provided by the Director:
(1) For concentrated animal feeding operations:
(i) The name of the owner or operator;
(ii) The facility location and mailing addresses;
(iii) Latitude and longitude of the production area (entrance to
production area);
(iv) A topographic map of the geographic area in which the CAFO is
located showing the specific location of the production area, in lieu of
the requirements of paragraph (f)(7) of this section;
(v) Specific information about the number and type of animals,
whether in open confinement or housed under roof (beef cattle, broilers,
layers, swine weighing 55 pounds or more, swine weighing less than 55
pounds, mature dairy cows, dairy heifers, veal calves, sheep and lambs,
horses, ducks, turkeys, other);
(vi) The type of containment and storage (anaerobic lagoon, roofed
storage shed, storage ponds, underfloor pits, above ground storage
tanks, below ground storage tanks, concrete pad, impervious soil pad,
other) and total capacity for manure, litter, and process wastewater
storage(tons/gallons);
(vii) The total number of acres under control of the applicant
available for land application of manure, litter, or process wastewater;
(viii) Estimated amounts of manure, litter, and process wastewater
generated per year (tons/gallons);
[[Page 189]]
(ix) Estimated amounts of manure, litter and process wastewater
transferred to other persons per year (tons/gallons); and
(x) A nutrient management plan that at a minimum satisfies the
requirements specified in Sec. 122.42(e), including, for all CAFOs
subject to 40 CFR part 412, subpart C or subpart D, the requirements of
40 CFR 412.4(c), as applicable.
(2) For concentrated aquatic animal production facilities:
(i) The maximum daily and average monthly flow from each outfall.
(ii) The number of ponds, raceways, and similar structures.
(iii) The name of the receiving water and the source of intake
water.
(iv) For each species of aquatic animals, the total yearly and
maximum harvestable weight.
(v) The calendar month of maximum feeding and the total mass of food
fed during that month.
(j) Application requirements for new and existing POTWs. Unless
otherwise indicated, all POTWs and other dischargers designated by the
Director must provide, at a minimum, the information in this paragraph
to the Director, using Form 2A or another application form provided by
the Director. Permit applicants must submit all information available at
the time of permit application. The information may be provided by
referencing information previously submitted to the Director. The
Director may waive any requirement of this paragraph if he or she has
access to substantially identical information. The Director may also
waive any requirement of this paragraph that is not of material concern
for a specific permit, if approved by the Regional Administrator. The
waiver request to the Regional Administrator must include the State's
justification for the waiver. A Regional Administrator's disapproval of
a State's proposed waiver does not constitute final Agency action, but
does provide notice to the State and permit applicant(s) that EPA may
object to any State-issued permit issued in the absence of the required
information.
(1) Basic application information. All applicants must provide the
following information:
(i) Facility information. Name, mailing address, and location of the
facility for which the application is submitted;
(ii) Applicant information. Name, mailing address, telephone number,
and electronic mail address of the applicant, and indication as to
whether the applicant is the facility's owner, operator, or both;
(iii) Existing environmental permits. Identification of all
environmental permits or construction approvals received or applied for
(including dates) under any of the following programs:
(A) Hazardous Waste Management program under the Resource
Conservation and Recovery Act (RCRA), Subpart C;
(B) Underground Injection Control program under the Safe Drinking
Water Act (SDWA);
(C) NPDES program under Clean Water Act (CWA);
(D) Prevention of Significant Deterioration (PSD) program under the
Clean Air Act;
(E) Nonattainment program under the Clean Air Act;
(F) National Emission Standards for Hazardous Air Pollutants
(NESHAPS) preconstruction approval under the Clean Air Act;
(G) Ocean dumping permits under the Marine Protection Research and
Sanctuaries Act;
(H) Dredge or fill permits under section 404 of the CWA; and
(I) Other relevant environmental permits, including State permits;
(iv) Population. The name and population of each municipal entity
served by the facility, including unincorporated connector districts.
Indicate whether each municipal entity owns or maintains the collection
system and whether the collection system is separate sanitary or
combined storm and sanitary, if known;
(v) Indian country. Information concerning whether the facility is
located in Indian country and whether the facility discharges to a
receiving stream that flows through Indian country;
(vi) Flow rate. The facility's design flow rate (the wastewater flow
rate the plant was built to handle), annual average daily flow rate, and
maximum daily flow rate for each of the previous 3 years;
[[Page 190]]
(vii) Collection system. Identification of type(s) of collection
system(s) used by the treatment works (i.e., separate sanitary sewers or
combined storm and sanitary sewers) and an estimate of the percent of
sewer line that each type comprises; and
(viii) Outfalls and other discharge or disposal methods. The
following information for outfalls to waters of the United States and
other discharge or disposal methods:
(A) For effluent discharges to waters of the United States, the
total number and types of outfalls (e.g, treated effluent, combined
sewer overflows, bypasses, constructed emergency overflows);
(B) For wastewater discharged to surface impoundments:
(1) The location of each surface impoundment;
(2) The average daily volume discharged to each surface impoundment;
and
(3) Whether the discharge is continuous or intermittent;
(C) For wastewater applied to the land:
(1) The location of each land application site;
(2) The size of each land application site, in acres;
(3) The average daily volume applied to each land application site,
in gallons per day; and
(4) Whether land application is continuous or intermittent;
(D) For effluent sent to another facility for treatment prior to
discharge:
(1) The means by which the effluent is transported;
(2) The name, mailing address, contact person, phone number, and
electronic mail address of the organization transporting the discharge,
if the transport is provided by a party other than the applicant;
(3) The name, mailing address, contact person, phone number,
electronic mail address 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;
(ix) An indication of whether applicant is operating under or
requesting to operate under a variance as specified at 40 CFR 122.21(n),
if known at the time of application.
(2) Additional Information. All applicants with a design flow
greater than or equal to 0.1 mgd must provide the following information:
(i) Inflow and infiltration. The current average daily volume of
inflow and infiltration, in gallons per day, and steps the facility is
taking to minimize inflow and infiltration;
(ii) Topographic map. A topographic map (or other map if a
topographic map is unavailable) extending at least one mile beyond
property boundaries of the treatment plant, including all unit
processes, and showing:
(A) Treatment plant area and unit processes;
(B) The major pipes or other structures through which wastewater
enters the treatment plant and the pipes or other structures through
which treated wastewater is discharged from the treatment plant. Include
outfalls from bypass piping, if applicable;
(C) Each well where fluids from the treatment plant are injected
underground;
(D) Wells, springs, and other surface water bodies listed in public
records or otherwise known to the applicant within \1/4\ mile of the
treatment works' property boundaries;
(E) Sewage sludge management facilities (including on-site
treatment, storage, and disposal sites); and
(F) Location at which waste classified as hazardous under RCRA
enters the treatment plant by truck, rail, or dedicated pipe;
(iii) Process flow diagram or schematic. (A) A diagram showing the
processes of the treatment plant, including all bypass piping and all
backup power sources or redundancy in the system.
[[Page 191]]
This includes a water balance showing all treatment units, including
disinfection, and showing daily average flow rates at influent and
discharge points, and approximate daily flow rates between treatment
units; and
(B) A narrative description of the diagram; and
(iv) Scheduled improvements, schedules of implementation. The
following information regarding scheduled improvements:
(A) The outfall number of each outfall affected;
(B) A narrative description of each required improvement;
(C) Scheduled or actual dates of completion for the following:
(1) Commencement of construction;
(2) Completion of construction;
(3) Commencement of discharge; and
(4) Attainment of operational level;
(D) A description of permits and clearances concerning other Federal
and/or State requirements;
(3) Information on effluent discharges. Each applicant must provide
the following information for each outfall, including bypass points,
through which effluent is discharged, as applicable:
(i) Description of outfall. The following information about each
outfall:
(A) Outfall number;
(B) State, county, and city or town in which outfall is located;
(C) Latitude and longitude, to the nearest second;
(D) Distance from shore and depth below surface;
(E) Average daily flow rate, in million gallons per day;
(F) The following information for each outfall with a seasonal or
periodic discharge:
(1) Number of times per year the discharge occurs;
(2) Duration of each discharge;
(3) Flow of each discharge; and
(4) Months in which discharge occurs; and
(G) Whether the outfall is equipped with a diffuser and the type
(e.g., high-rate) of diffuser used;
(ii) Description of receiving waters. The following information (if
known) for each outfall through which effluent is discharged to waters
of the United States:
(A) Name of receiving water;
(B) Name of watershed/river/stream system and United States Soil
Conservation Service 14-digit watershed code;
(C) Name of State Management/River Basin and United States
Geological Survey 8-digit hydrologic cataloging unit code; and
(D) Critical flow of receiving stream and total hardness of
receiving stream at critical low flow (if applicable);
(iii) Description of treatment. The following information describing
the treatment provided for discharges from each outfall to waters of the
United States:
(A) The highest level of treatment (e.g., primary, equivalent to
secondary, secondary, advanced, other) that is provided for the
discharge for each outfall and:
(1) Design biochemical oxygen demand (BOD5 or
CBOD5) removal (percent);
(2) Design suspended solids (SS) removal (percent); and, where
applicable,
(3) Design phosphorus (P) removal (percent);
(4) Design nitrogen (N) removal (percent); and
(5) Any other removals that an advanced treatment system is designed
to achieve.
(B) A description of the type of disinfection used, and whether the
treatment plant dechlorinates (if disinfection is accomplished through
chlorination);
(4) Effluent monitoring for specific parameters. (i) As provided in
paragraphs (j)(4)(ii) through (x) of this section, all applicants must
submit to the Director effluent monitoring information for samples taken
from each outfall through which effluent is discharged to waters of the
United States, except for CSOs. The Director may allow applicants to
submit sampling data for only one outfall on a case-by-case basis, where
the applicant has two or more outfalls with substantially identical
effluent. The Director may also allow applicants to composite samples
from one or more outfalls that discharge into the same mixing zone. For
POTWs applying prior to commencement of discharge, data shall be
submitted no later than 24 months after the commencement of discharge;
[[Page 192]]
(ii) All applicants must sample and analyze for the pollutants
listed in appendix J, Table 1A of this part;
(iii) All applicants with a design flow greater than or equal to 0.1
mgd must sample and analyze for the pollutants listed in appendix J,
Table 1 of this part. Facilities that do not use chlorine for
disinfection, do not use chlorine elsewhere in the treatment process,
and have no reasonable potential to discharge chlorine in their effluent
may delete chlorine from Table 1;
(iv) The following applicants must sample and analyze for the
pollutants listed in appendix J, Table 2 of this part, and for any other
pollutants for which the State or EPA have established water quality
standards applicable to the receiving waters:
(A) All POTWs with a design flow rate equal to or greater than one
million gallons per day;
(B) All POTWs with approved pretreatment programs or POTWs required
to develop a pretreatment program;
(C) Other POTWs, as required by the Director;
(v) The Director should require sampling for additional pollutants,
as appropriate, on a case-by-case basis;
(vi) Applicants must provide data from a minimum of three samples
taken within four and one-half years prior to the date of the permit
application. Samples must be representative of the seasonal variation in
the discharge from each outfall. Existing data may be used, if
available, in lieu of sampling done solely for the purpose of this
application. The Director should require additional samples, as
appropriate, on a case-by-case basis.
(vii) All existing data for pollutants specified in paragraphs
(j)(4)(ii) through (v) of this section that is collected within four and
one-half years of the application must be included in the pollutant data
summary submitted by the applicant. If, however, the applicant samples
for a specific pollutant on a monthly or more frequent basis, it is only
necessary, for such pollutant, to summarize all data collected within
one year of the application.
(viii) Applicants must collect samples of effluent and analyze such
samples for pollutants in accordance with analytical methods approved
under 40 CFR Part 136 unless an alternative is specified in the existing
NPDES permit. When analysis of pH, temperature, cyanide, total phenols,
residual chlorine, oil and grease, fecal coliform (including E. coli),
or volatile organics is required in paragraphs (j)(4)(ii) through (iv)
of this section, grab samples must be collected for those pollutants.
For all other pollutants, 24-hour composite samples must be used. For a
composite sample, only one analysis of the composite of aliquots is
required.
(ix) The effluent monitoring data provided must include at least the
following information for each parameter:
(A) Maximum daily discharge, expressed as concentration or mass,
based upon actual sample values;
(B) Average daily discharge for all samples, expressed as
concentration or mass, and the number of samples used to obtain this
value;
(C) The analytical method used; and
(D) The threshold level (i.e., method detection limit, minimum
level, or other designated method endpoints) for the analytical method
used.
(x) Unless otherwise required by the Director, metals must be
reported as total recoverable.
(5) Effluent monitoring for whole effluent toxicity. (i) All
applicants must provide an identification of any whole effluent toxicity
tests conducted during the four and one-half years prior to the date of
the application on any of the applicant's discharges or on any receiving
water near the discharge. For POTWs applying prior to commencement of
discharge, data shall be submitted no later than 24 months after the
commencement of discharge.
(ii) As provided in paragraphs (j)(5)(iii)-(ix) of this section, the
following applicants must submit to the Director the results of valid
whole effluent toxicity tests for acute or chronic toxicity for samples
taken from each outfall through which effluent is discharged to surface
waters, except for combined sewer overflows:
(A) All POTWs with design flow rates greater than or equal to one
million gallons per day;
[[Page 193]]
(B) All POTWs with approved pretreatment programs or POTWs required
to develop a pretreatment program;
(C) Other POTWs, as required by the Director, based on consideration
of the following factors:
(1) The variability of the pollutants or pollutant parameters in the
POTW effluent (based on chemical-specific information, the type of
treatment plant, and types of industrial contributors);
(2) The ratio of effluent flow to receiving stream flow;
(3) Existing controls on point or non-point sources, including total
maximum daily load calculations for the receiving stream segment and the
relative contribution of the POTW;
(4) Receiving stream characteristics, including possible or known
water quality impairment, and whether the POTW discharges to a coastal
water, one of the Great Lakes, or a water designated as an outstanding
natural resource water; or
(5) Other considerations (including, but not limited to, the history
of toxic impacts and compliance problems at the POTW) that the Director
determines could cause or contribute to adverse water quality impacts.
(iii) Where the POTW has two or more outfalls with substantially
identical effluent discharging to the same receiving stream segment, the
Director may allow applicants to submit whole effluent toxicity data for
only one outfall on a case-by-case basis. The Director may also allow
applicants to composite samples from one or more outfalls that discharge
into the same mixing zone.
(iv) Each applicant required to perform whole effluent toxicity
testing pursuant to paragraph (j)(5)(ii) of this section must provide:
(A) Results of a minimum of four quarterly tests for a year, from
the year preceding the permit application; or
(B) Results from four tests performed at least annually in the four
and one half year period prior to the application, provided the results
show no appreciable toxicity using a safety factor determined by the
permitting authority.
(v) Applicants must conduct tests with multiple species (no less
than two species; e.g., fish, invertebrate, plant), and test for acute
or chronic toxicity, depending on the range of receiving water dilution.
EPA recommends that applicants conduct acute or chronic testing based on
the following dilutions:
(A) Acute toxicity testing if the dilution of the effluent is
greater than 1000:1 at the edge of the mixing zone;
(B) Acute or chronic toxicity testing if the dilution of the
effluent is between 100:1 and 1000:1 at the edge of the mixing zone.
Acute testing may be more appropriate at the higher end of this range
(1000:1), and chronic testing may be more appropriate at the lower end
of this range (100:1); and
(C) Chronic testing if the dilution of the effluent is less than
100:1 at the edge of the mixing zone.
(vi) Each applicant required to perform whole effluent toxicity
testing pursuant to paragraph (j)(5)(ii) of this section must provide
the number of chronic or acute whole effluent toxicity tests that have
been conducted since the last permit reissuance.
(vii) Applicants must provide the results using the form provided by
the Director, or test summaries if available and comprehensive, for each
whole effluent toxicity test conducted pursuant to paragraph (j)(5)(ii)
of this section for which such information has not been reported
previously to the Director.
(viii) Whole effluent toxicity testing conducted pursuant to
paragraph (j)(5)(ii) of this section must be conducted using methods
approved under 40 CFR part 136. West coast facilities in Washington,
Oregon, California, Alaska, Hawaii, and the Pacific Territories are
exempted from 40 CFR part 136 chronic methods and must use alternative
guidance as directed by the permitting authority.
(ix) For whole effluent toxicity data submitted to the Director
within four and one-half years prior to the date of the application,
applicants must provide the dates on which the data were submitted and a
summary of the results.
[[Page 194]]
(x) Each POTW required to perform whole effluent toxicity testing
pursuant to paragraph (j)(5)(ii) of this section must provide any
information on the cause of toxicity and written details of any toxicity
reduction evaluation conducted, if any whole effluent toxicity test
conducted within the past four and one-half years revealed toxicity.
(6) Industrial discharges. Applicants must submit the following
information about industrial discharges to the POTW:
(i) Number of significant industrial users (SIUs) and non-
significant categorical industrial users (NSCIUs), as defined at 40 CFR
403.3(v), including SIUs and NSCIUs that truck or haul waste,
discharging to the POTW; and
(ii) POTWs with one or more SIUs shall provide the following
information for each SIU, as defined at 40 CFR 403.3(v), that discharges
to the POTW:
(A) Name and mailing address;
(B) Description of all industrial processes that affect or
contribute to the SIU's discharge;
(C) Principal products and raw materials of the SIU that affect or
contribute to the SIU's discharge;
(D) Average daily volume of wastewater discharged, indicating the
amount attributable to process flow and non-process flow;
(E) Whether the SIU is subject to local limits;
(F) Whether the SIU is subject to categorical standards, and if so,
under which category(ies) and subcategory(ies); and
(G) Whether any problems at the POTW (e.g., upsets, pass through,
interference) have been attributed to the SIU in the past four and one-
half years.
(iii) The information required in paragraphs (j)(6)(i) and (ii) of
this section may be waived by the Director for POTWs with pretreatment
programs if the applicant has submitted either of the following that
contain information substantially identical to that required in
paragraphs (j)(6)(i) and (ii) of this section.
(A) An annual report submitted within one year of the application;
or
(B) A pretreatment program;
(7) Discharges from hazardous waste generators and from waste
cleanup or remediation sites. POTWs receiving Resource Conservation and
Recovery Act (RCRA), Comprehensive Environmental Response, Compensation,
and Liability Act (CERCLA), or RCRA Corrective Action wastes or wastes
generated at another type of cleanup or remediation site must provide
the following information:
(i) If the POTW receives, or has been notified that it will receive,
by truck, rail, or dedicated pipe any wastes that are regulated as RCRA
hazardous wastes pursuant to 40 CFR part 261, the applicant must report
the following:
(A) The method by which the waste is received (i.e., whether by
truck, rail, or dedicated pipe); and
(B) The hazardous waste number and amount received annually of each
hazardous waste;
(ii) If the POTW receives, or has been notified that it will
receive, wastewaters that originate from remedial activities, including
those undertaken pursuant to CERCLA and sections 3004(u) or 3008(h) of
RCRA, the applicant must report the following:
(A) The identity and description of the site(s) or facility(ies) at
which the wastewater originates;
(B) The identities of the wastewater's hazardous constituents, as
listed in appendix VIII of part 261 of this chapter; if known; and
(C) The extent of treatment, if any, the wastewater receives or will
receive before entering the POTW;
(iii) Applicants are exempt from the requirements of paragraph
(j)(7)(ii) of this section if they receive no more than fifteen
kilograms per month of hazardous wastes, unless the wastes are acute
hazardous wastes as specified in 40 CFR 261.30(d) and 261.33(e).
(8) Combined sewer overflows. Each applicant with combined sewer
systems must provide the following information:
(i) Combined sewer system information. The following information
regarding the combined sewer system:
(A) System map. A map indicating the location of the following:
(1) All CSO discharge points;
(2) Sensitive use areas potentially affected by CSOs (e.g., beaches,
drinking water supplies, shellfish beds, sensitive
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aquatic ecosystems, and outstanding national resource waters); and
(3) Waters supporting threatened and endangered species potentially
affected by CSOs; and
(B) System diagram. A diagram of the combined sewer collection
system that includes the following information:
(1) The location of major sewer trunk lines, both combined and
separate sanitary;
(2) The locations of points where separate sanitary sewers feed into
the combined sewer system;
(3) In-line and off-line storage structures;
(4) The locations of flow-regulating devices; and
(5) The locations of pump stations;
(ii) Information on CSO outfalls. The following information for each
CSO discharge point covered by the permit application:
(A) Description of outfall. The following information on each
outfall:
(1) Outfall number;
(2) State, county, and city or town in which outfall is located;
(3) Latitude and longitude, to the nearest second; and
(4) Distance from shore and depth below surface;
(5) Whether the applicant monitored any of the following in the past
year for this CSO:
(i) Rainfall;
(ii) CSO flow volume;
(iii) CSO pollutant concentrations;
(iv) Receiving water quality;
(v) CSO frequency; and
(6) The number of storm events monitored in the past year;
(B) CSO events. The following information about CSO overflows from
each outfall:
(1) The number of events in the past year;
(2) The average duration per event, if available;
(3) The average volume per CSO event, if available; and
(4) The minimum rainfall that caused a CSO event, if available, in
the last year;
(C) Description of receiving waters. The following information about
receiving waters:
(1) Name of receiving water;
(2) Name of watershed/stream system and the United States Soil
Conservation Service watershed (14-digit) code (if known); and
(3) Name of State Management/River Basin and the United States
Geological Survey hydrologic cataloging unit (8-digit) code (if known);
and
(D) CSO operations. A description of any known water quality impacts
on the receiving water caused by the CSO (e.g., permanent or
intermittent beach closings, permanent or intermittent shellfish bed
closings, fish kills, fish advisories, other recreational loss, or
exceedance of any applicable State water quality standard);
(iii) Public notification plan for CSO discharges to the Great Lakes
Basin. Each permittee authorized to discharge a combined sewer overflow
to the Great Lakes Basin as defined in Sec. 122.2 must submit a public
notification plan developed in accordance with Sec. 122.38 as part of
its permit application. The public notification plan shall describe any
significant updates to the plan that may have occurred since the last
plan submission.
(9) Contractors. All applicants must provide the name, mailing
address, telephone number, electronic mail address and responsibilities
of all contractors responsible for any operational or maintenance
aspects of the facility; and
(10) Signature. All applications must be signed by a certifying
official in compliance with Sec. 122.22.
(k) Application requirements for new sources and new discharges. New
manufacturing, commercial, mining and silvicultural dischargers applying
for NPDES permits (except for new discharges of facilities subject to
the requirements of paragraph (h) of this section or new discharges of
storm water associated with industrial activity which are subject to the
requirements of Sec. 122.26(c)(1) and this section (except as provided
by Sec. 122.26(c)(1)(ii)) shall provide the following information to
the Director, using the application forms provided by the Director:
(1) Expected outfall location. The latitude and longitude to the
nearest 15 seconds and the name of the receiving water.
[[Page 196]]
(2) Discharge dates. The expected date of commencement of discharge.
(3) Flows, sources of pollution, and treatment technologies--(i)
Expected treatment of wastewater. Description of the treatment that the
wastewater will receive, along with all operations contributing
wastewater to the effluent, average flow contributed by each operation,
and the ultimate disposal of any solid or liquid wastes not discharged.
(ii) Line drawing. A line drawing of the water flow through the
facility with a water balance as described in Sec. 122.21(g)(2).
(iii) Intermittent flows. If any of the expected discharges will be
intermittent or seasonal, a description of the frequency, duration and
maximum daily flow rate of each discharge occurrence (except for
stormwater runoff, spillage, or leaks).
(4) Production. If a new source performance standard promulgated
under section 306 of CWA or an effluent limitation guideline applies to
the applicant and is expressed in terms of production (or other measure
of operation), a reasonable measure of the applicant's expected actual
production reported in the units used in the applicable effluent
guideline or new source performance standard as required by Sec.
122.45(b)(2) for each of the first three years. Alternative estimates
may also be submitted if production is likely to vary.
(5) Effluent characteristics. The requirements in paragraphs
(h)(4)(i), (ii), and (iii) of this section that an applicant must
provide estimates of certain pollutants expected to be present do not
apply to pollutants present in a discharge solely as a result of their
presence in intake water; however, an applicant must report such
pollutants as present. Net credits may be provided for the presence of
pollutants in intake water if the requirements of Sec. 122.45(g) are
met. All levels (except for discharge flow, temperature, and pH) must be
estimated as concentration and as total mass.
(i) Each applicant must report estimated daily maximum, daily
average, and source of information for each outfall for the following
pollutants or parameters. The Director may waive the reporting
requirements for any of these pollutants and parameters if the applicant
submits a request for such a waiver before or with his application which
demonstrates that information adequate to support issuance of the permit
can be obtained through less stringent reporting requirements.
(A) Biochemical Oxygen Demand (BOD).
(B) Chemical Oxygen Demand (COD).
(C) Total Organic Carbon (TOC).
(D) Total Suspended Solids (TSS).
(E) Flow.
(F) Ammonia (as N).
(G) Temperature (winter and summer).
(H) pH.
(ii) Each applicant must report estimated daily maximum, daily
average, and source of information for each outfall for the following
pollutants, if the applicant knows or has reason to believe they will be
present or if they are limited by an effluent limitation guideline or
new source performance standard either directly or indirectly through
limitations on an indicator pollutant: all pollutants in table IV of
appendix D of part 122 (certain conventional and nonconventional
pollutants).
(iii) Each applicant must report estimated daily maximum, daily
average and source of information for the following pollutants if he
knows or has reason to believe that they will be present in the
discharges from any outfall:
(A) The pollutants listed in table III of appendix D (the toxic
metals, in the discharge from any outfall: Total cyanide, and total
phenols);
(B) The organic toxic pollutants in table II of appendix D (except
bis (chloromethyl) ether, dichlorofluoromethane and
trichlorofluoromethane). This requirement is waived for applicants with
expected gross sales of less than $100,000 per year for the next three
years, and for coal mines with expected average production of less than
100,000 tons of coal per year.
(iv) The applicant is required to report that 2,3,7,8
Tetrachlorodibenzo-P-Dioxin (TCDD) may be discharged if he uses or
manufactures one of the following compounds, or if he knows or
[[Page 197]]
has reason to believe that TCDD will or may be present in an effluent:
(A) 2,4,5-trichlorophenoxy acetic acid (2,4,5-T) (CAS 93-76-5);
(B) 2-(2,4,5-trichlorophenoxy) propanoic acid (Silvex, 2,4,5-TP)
(CAS 93-72-1);
(C) 2-(2,4,5-trichlorophenoxy) ethyl 2,2-dichloropropionate (Erbon)
(CAS 136-25-4);
(D) 0,0-dimethyl 0-(2,4,5-trichlorophenyl) phosphorothioate (Ronnel)
(CAS 299-84-3);
(E) 2,4,5-trichlorophenol (TCP) (CAS 95-95-4); or
(F) Hexachlorophene (HCP) (CAS 70-30-4);
(v) Each applicant must report any pollutants listed in table V of
appendix D (certain hazardous substances) if he believes they will be
present in any outfall (no quantitative estimates are required unless
they are already available).
(vi) No later than 24 months after the commencement of discharge
from the proposed facility, the applicant is required to complete and
submit items V and VI of NPDES application Form 2C (see Sec.
122.21(g)). However, the applicant need not complete those portions of
Item V requiring tests which have already been performed and reported
under the discharge monitoring requirements of the NPDES permit.
(6) Engineering Report. Each applicant must report the existence of
any technical evaluation concerning his wastewater treatment, along with
the name and location of similar plants of which he has knowledge.
(7) Other information. Any optional information the permittee wishes
to have considered.
(8) Certification. Signature of certifying official under Sec.
122.22.
(l) Special provisions for applications from new sources. (1) The
owner or operator of any facility which may be a new source (as defined
in Sec. 122.2) and which is located in a State without an approved
NPDES program must comply with the provisions of this paragraph (l)(1).
(2)(i) Before beginning any on-site construction as defined in Sec.
122.29, the owner or operator of any facility which may be a new source
must submit information to the Regional Administrator so that he or she
can determine if the facility is a new source. The Regional
Administrator may request any additional information needed to determine
whether the facility is a new source.
(ii) The Regional Administrator shall make an initial determination
whether the facility is a new source within 30 days of receiving all
necessary information under paragraph (l)(2)(i) of this section.
(3) The Regional Administrator shall issue a public notice in
accordance with Sec. 124.10 of this chapter of the new source
determination under paragraph (l)(2) of this section. If the Regional
Administrator has determined that the facility is a new source, the
notice shall state that the applicant must comply with the environmental
review requirements of 40 CFR 6.600 through 6.607.
(4) Any interested party may challenge the Regional Administrator's
initial new source determination by requesting review of the
determination under Sec. 124.19 of this chapter within 30 days of the
public notice of the initial determination. If all interested parties
agree, the Environmental Appeals Board may defer review until after a
final permit decision is made, and consolidate review of the
determination with any review of the permit decision.
(m) Variance requests by non-POTWs. A discharger which is not a
publicly owned treatment works (POTW) may request a variance from
otherwise applicable effluent limitations under any of the following
statutory or regulatory provisions within the times specified in this
paragraph:
(1) Fundamentally different factors. (i) A request for a variance
based on the presence of ``fundamentally different factors'' from those
on which the effluent limitations guideline was based shall be filed as
follows:
(A) For a request from best practicable control technology currently
available (BPT), by the close of the public comment period under Sec.
124.10.
(B) For a request from best available technology economically
achievable (BAT) and/or best conventional pollutant control technology
(BCT), by no later than:
[[Page 198]]
(1) July 3, 1989, for a request based on an effluent limitation
guideline promulgated before February 4, 1987, to the extent July 3,
1989 is not later than that provided under previously promulgated
regulations; or
(2) 180 days after the date on which an effluent limitation
guideline is published in the Federal Register for a request based on an
effluent limitation guideline promulgated on or after February 4, 1987.
(ii) The request shall explain how the requirements of the
applicable regulatory and/or statutory criteria have been met.
(2) Non-conventional pollutants. A request for a variance from the
BAT requirements for CWA section 301(b)(2)(F) pollutants (commonly
called ``non-conventional'' pollutants) pursuant to section 301(c) of
CWA because of the economic capability of the owner or operator, or
pursuant to section 301(g) of the CWA (provided however that a Sec.
301(g) variance may only be requested for ammonia; chlorine; color;
iron; total phenols (4AAP) (when determined by the Administrator to be a
pollutant covered by section 301(b)(2)(F)) and any other pollutant which
the Administrator lists under section 301(g)(4) of the CWA) must be made
as follows:
(i) For those requests for a variance from an effluent limitation
based upon an effluent limitation guideline by:
(A) Submitting an initial request to the Regional Administrator, as
well as to the State Director if applicable, stating the name of the
discharger, the permit number, the outfall number(s), the applicable
effluent guideline, and whether the discharger is requesting a section
301(c) or section 301(g) modification or both. This request must have
been filed not later than:
(1) September 25, 1978, for a pollutant which is controlled by a BAT
effluent limitation guideline promulgated before December 27, 1977; or
(2) 270 days after promulgation of an applicable effluent limitation
guideline for guidelines promulgated after December 27, 1977; and
(B) Submitting a completed request no later than the close of the
public comment period under Sec. 124.10 demonstrating that the
requirements of Sec. 124.13 and the applicable requirements of part 125
have been met. Notwithstanding this provision, the complete application
for a request under section 301(g) shall be filed 180 days before EPA
must make a decision (unless the Regional Division Director establishes
a shorter or longer period).
(ii) For those requests for a variance from effluent limitations not
based on effluent limitation guidelines, the request need only comply
with paragraph (m)(2)(i)(B) of this section and need not be preceded by
an initial request under paragraph (m)(2)(i)(A) of this section.
(3)-(4) [Reserved]
(5) Water quality related effluent limitations. A modification under
section 302(b)(2) of requirements under section 302(a) for achieving
water quality related effluent limitations may be requested no later
than the close of the public comment period under Sec. 124.10 on the
permit from which the modification is sought.
(6) Thermal discharges. A variance under CWA section 316(a) for the
thermal component of any discharge must be filed with a timely
application for a permit under this section, except that if thermal
effluent limitations are established under CWA section 402(a)(1) or are
based on water quality standards the request for a variance may be filed
by the close of the public comment period under Sec. 124.10. A copy of
the request as required under 40 CFR part 125, subpart H, shall be sent
simultaneously to the appropriate State or interstate certifying agency
as required under 40 CFR part 125. (See Sec. 124.65 for special
procedures for section 316(a) thermal variances.)
(n) Variance requests by POTWs. A discharger which is a publicly
owned treatment works (POTW) may request a variance from otherwise
applicable effluent limitations under any of the following statutory
provisions as specified in this paragraph:
(1) Discharges into marine waters. A request for a modification
under CWA section 301(h) of requirements of CWA section 301(b)(1)(B) for
discharges into marine waters must be filed in accordance with the
requirements of 40 CFR part 125, subpart G.
(2) [Reserved]
(3) Water quality based effluent limitation. A modification under
CWA section
[[Page 199]]
302(b)(2) of the requirements under section 302(a) for achieving water
quality based effluent limitations shall be requested no later than the
close of the public comment period under Sec. 124.10 on the permit from
which the modification is sought.
(o) Expedited variance procedures and time extensions. (1)
Notwithstanding the time requirements in paragraphs (m) and (n) of this
section, the Director may notify a permit applicant before a draft
permit is issued under Sec. 124.6 that the draft permit will likely
contain limitations which are eligible for variances. In the notice the
Director may require the applicant as a condition of consideration of
any potential variance request to submit a request explaining how the
requirements of part 125 applicable to the variance have been met and
may require its submission within a specified reasonable time after
receipt of the notice. The notice may be sent before the permit
application has been submitted. The draft or final permit may contain
the alternative limitations which may become effective upon final grant
of the variance.
(2) A discharger who cannot file a timely complete request required
under paragraph (m)(2)(i)(B) or (m)(2)(ii) of this section may request
an extension. The extension may be granted or denied at the discretion
of the Director. Extensions shall be no more than 6 months in duration.
(p) Recordkeeping. Except for information required by paragraph
(d)(3)(ii) of this section, which shall be retained for a period of at
least five years from the date the application is signed (or longer as
required by 40 CFR part 503), applicants shall keep records of all data
used to complete permit applications and any supplemental information
submitted under this section for a period of at least 3 years from the
date the application is signed.
(q) Sewage sludge management. All TWTDS subject to paragraph
(c)(2)(i) of this section must provide the information in this paragraph
to the Director, using Form 2S or another application form approved by
the Director. New applicants must submit all information available at
the time of permit application. The information may be provided by
referencing information previously submitted to the Director. The
Director may waive any requirement of this paragraph if he or she has
access to substantially identical information. The Director may also
waive any requirement of this paragraph that is not of material concern
for a specific permit, if approved by the Regional Administrator. The
waiver request to the Regional Administrator must include the State's
justification for the waiver. A Regional Administrator's disapproval of
a State's proposed waiver does not constitute final Agency action, but
does provide notice to the State and permit applicant(s) that EPA may
object to any State-issued permit issued in the absence of the required
information.
(1) Facility information. All applicants must submit the following
information:
(i) The name, mailing address, and location of the TWTDS for which
the application is submitted;
(ii) Whether the facility is a Class I Sludge Management Facility;
(iii) The design flow rate (in million gallons per day);
(iv) The total population served; and
(v) The TWTDS's status as Federal, State, private, public, or other
entity;
(2) Applicant information. All applicants must submit the following
information:
(i) The name, mailing address, telephone number, and electronic mail
address of the applicant; and
(ii) Indication whether the applicant is the owner, operator, or
both;
(3) Permit information. All applicants must submit the facility's
NPDES permit number, if applicable, and a listing of all other Federal,
State, and local permits or construction approvals received or applied
for under any of the following programs:
(i) Hazardous Waste Management program under the Resource
Conservation and Recovery Act (RCRA);
(ii) UIC program under the Safe Drinking Water Act (SDWA);
(iii) NPDES program under the Clean Water Act (CWA);
(iv) Prevention of Significant Deterioration (PSD) program under the
Clean Air Act;
[[Page 200]]
(v) Nonattainment program under the Clean Air Act;
(vi) National Emission Standards for Hazardous Air Pollutants
(NESHAPS) preconstruction approval under the Clean Air Act;
(vii) Dredge or fill permits under section 404 of CWA;
(viii) Other relevant environmental permits, including State or
local permits;
(4) Indian country. All applicants must identify any generation,
treatment, storage, land application, or disposal of sewage sludge that
occurs in Indian country;
(5) Topographic map. All applicants must submit a topographic map
(or other map if a topographic map is unavailable) extending one mile
beyond property boundaries of the facility and showing the following
information:
(i) All sewage sludge management facilities, including on-site
treatment, storage, and disposal sites; and
(ii) Wells, springs, and other surface water bodies that are within
\1/4\ mile of the property boundaries and listed in public records or
otherwise known to the applicant;
(6) Sewage sludge handling. All applicants must submit a line
drawing and/or a narrative description that identifies all sewage sludge
management practices employed during the term of the permit, including
all units used for collecting, dewatering, storing, or treating sewage
sludge, the destination(s) of all liquids and solids leaving each such
unit, and all processes used for pathogen reduction and vector
attraction reduction;
(7) Sewage sludge quality. The applicant must submit sewage sludge
monitoring data for the pollutants for which limits in sewage sludge
have been established in 40 CFR part 503 for the applicant's use or
disposal practices on the date of permit application.
(i) The Director may require sampling for additional pollutants, as
appropriate, on a case-by-case basis;
(ii) Applicants must provide data from a minimum of three samples
taken within four and one-half years prior to the date of the permit
application. Samples must be representative of the sewage sludge and
should be taken at least one month apart. Existing data may be used in
lieu of sampling done solely for the purpose of this application;
(iii) Applicants must collect and analyze samples in accordance with
analytical methods approved under SW-846 unless an alternative has been
specified in an existing sewage sludge permit;
(iv) The monitoring data provided must include at least the
following information for each parameter:
(A) Average monthly concentration for all samples (mg/kg dry
weight), based upon actual sample values;
(B) The analytical method used; and
(C) The method detection level.
(8) Preparation of sewage sludge. If the applicant is a ``person who
prepares'' sewage sludge, as defined at 40 CFR 503.9(r), the applicant
must provide the following information:
(i) If the applicant's facility generates sewage sludge, the total
dry metric tons per 365-day period generated at the facility;
(ii) If the applicant's facility receives sewage sludge from another
facility, the following information for each facility from which sewage
sludge is received:
(A) The name, mailing address, and location of the other facility;
(B) The total dry metric tons per 365-day period received from the
other facility; and
(C) A description of any treatment processes occurring at the other
facility, including blending activities and treatment to reduce
pathogens or vector attraction characteristics;
(iii) If the applicant's facility changes the quality of sewage
sludge through blending, treatment, or other activities, the following
information:
(A) Whether the Class A pathogen reduction requirements in 40 CFR
503.32(a) or the Class B pathogen reduction requirements in 40 CFR
503.32(b) are met, and a description of any treatment processes used to
reduce pathogens in sewage sludge;
(B) Whether any of the vector attraction reduction options of 40 CFR
503.33(b)(1) through (b)(8) are met, and a description of any treatment
processes used to reduce vector attraction properties in sewage sludge;
and
[[Page 201]]
(C) A description of any other blending, treatment, or other
activities that change the quality of sewage sludge;
(iv) If sewage sludge from the applicant's facility meets the
ceiling concentrations in 40 CFR 503.13(b)(1), the pollutant
concentrations in Sec. 503.13(b)(3), the Class A pathogen requirements
in Sec. 503.32(a), and one of the vector attraction reduction
requirements in Sec. 503.33(b)(1) through (b)(8), and if the sewage
sludge is applied to the land, the applicant must provide the total dry
metric tons per 365-day period of sewage sludge subject to this
paragraph that is applied to the land;
(v) If sewage sludge from the applicant's facility is sold or given
away in a bag or other container for application to the land, and the
sewage sludge is not subject to paragraph (q)(8)(iv) of this section,
the applicant must provide the following information:
(A) The total dry metric tons per 365-day period of sewage sludge
subject to this paragraph that is sold or given away in a bag or other
container for application to the land; and
(B) A copy of all labels or notices that accompany the sewage sludge
being sold or given away;
(vi) If sewage sludge from the applicant's facility is provided to
another ``person who prepares,'' as defined at 40 CFR 503.9(r), and the
sewage sludge is not subject to paragraph (q)(8)(iv) of this section,
the applicant must provide the following information for each facility
receiving the sewage sludge:
(A) The name, mailing address, and electronic mail address of the
receiving facility;
(B) The total dry metric tons per 365-day period of sewage sludge
subject to this paragraph that the applicant provides to the receiving
facility;
(C) A description of any treatment processes occurring at the
receiving facility, including blending activities and treatment to
reduce pathogens or vector attraction characteristic;
(D) A copy of the notice and necessary information that the
applicant is required to provide the receiving facility under 40 CFR
503.12(g); and
(E) If the receiving facility places sewage sludge in bags or
containers for sale or give-away to application to the land, a copy of
any labels or notices that accompany the sewage sludge;
(9) Land application of bulk sewage sludge. If sewage sludge from
the applicant's facility is applied to the land in bulk form, and is not
subject to paragraphs (q)(8)(iv), (v), or (vi) of this section, the
applicant must provide the following information:
(i) The total dry metric tons per 365-day period of sewage sludge
subject to this paragraph that is applied to the land;
(ii) If any land application sites are located in States other than
the State where the sewage sludge is prepared, a description of how the
applicant will notify the permitting authority for the State(s) where
the land application sites are located;
(iii) The following information for each land application site that
has been identified at the time of permit application:
(A) The name (if any), and location for the land application site;
(B) The site's latitude and longitude to the nearest second, and
method of determination;
(C) A topographic map (or other map if a topographic map is
unavailable) that shows the site's location;
(D) The name, mailing address, telephone number, and electronic mail
address of the site owner, if different from the applicant;
(E) The name, mailing address, telephone number, and electronic mail
address of the person who applies sewage sludge to the site, if
different from the applicant;
(F) Whether the site is agricultural land, forest, a public contact
site, or a reclamation site, as such site types are defined under 40 CFR
503.11;
(G) The type of vegetation grown on the site, if known, and the
nitrogen requirement for this vegetation;
(H) Whether either of the vector attraction reduction options of 40
CFR 503.33(b)(9) or (b)(10) is met at the site, and a description of any
procedures employed at the time of use to reduce vector attraction
properties in sewage sludge; and
(I) Other information that describes how the site will be managed,
as specified by the permitting authority.
[[Page 202]]
(iv) The following information for each land application site that
has been identified at the time of permit application, if the applicant
intends to apply bulk sewage sludge subject to the cumulative pollutant
loading rates in 40 CFR 503.13(b)(2) to the site:
(A) Whether the applicant has contacted the permitting authority in
the State where the bulk sewage sludge subject to Sec. 503.13(b)(2)
will be applied, to ascertain whether bulk sewage sludge subject to
Sec. 503.13(b)(2) has been applied to the site on or since July 20,
1993, and if so, the name of the permitting authority and the name,
phone number, and electronic mail address if available, of a contact
person at the permitting authority;
(B) Identification of facilities other than the applicant's facility
that have sent, or are sending, sewage sludge subject to the cumulative
pollutant loading rates in Sec. 503.13(b)(2) to the site since July 20,
1993, if, based on the inquiry in paragraph (q)(iv)(A), bulk sewage
sludge subject to cumulative pollutant loading rates in Sec.
503.13(b)(2) has been applied to the site since July 20, 1993;
(v) If not all land application sites have been identified at the
time of permit application, the applicant must submit a land application
plan that, at a minimum:
(A) Describes the geographical area covered by the plan;
(B) Identifies the site selection criteria;
(C) Describes how the site(s) will be managed;
(D) Provides for advance notice to the permit authority of specific
land application sites and reasonable time for the permit authority to
object prior to land application of the sewage sludge; and
(E) Provides for advance public notice of land application sites in
the manner prescribed by State and local law. When State or local law
does not require advance public notice, it must be provided in a manner
reasonably calculated to apprize the general public of the planned land
application.
(10) Surface disposal. If sewage sludge from the applicant's
facility is placed on a surface disposal site, the applicant must
provide the following information:
(i) The total dry metric tons of sewage sludge from the applicant's
facility that is placed on surface disposal sites per 365-day period;
(ii) The following information for each surface disposal site
receiving sewage sludge from the applicant's facility that the applicant
does not own or operate:
(A) The site name or number, contact person, mailing address,
telephone number, and electronic mail address for the surface disposal
site; and
(B) The total dry metric tons from the applicant's facility per 365-
day period placed on the surface disposal site;
(iii) The following information for each active sewage sludge unit
at each surface disposal site that the applicant owns or operates:
(A) The name or number and the location of the active sewage sludge
unit;
(B) The unit's latitude and longitude to the nearest second, and
method of determination;
(C) If not already provided, a topographic map (or other map if a
topographic map is unavailable) that shows the unit's location;
(D) The total dry metric tons placed on the active sewage sludge
unit per 365-day period;
(E) The total dry metric tons placed on the active sewage sludge
unit over the life of the unit;
(F) A description of any liner for the active sewage sludge unit,
including whether it has a maximum permeability of 1 x 10-7
cm/sec;
(G) A description of any leachate collection system for the active
sewage sludge unit, including the method used for leachate disposal, and
any Federal, State, and local permit number(s) for leachate disposal;
(H) If the active sewage sludge unit is less than 150 meters from
the property line of the surface disposal site, the actual distance from
the unit boundary to the site property line;
(I) The remaining capacity (dry metric tons) for the active sewage
sludge unit;
(J) The date on which the active sewage sludge unit is expected to
close, if such a date has been identified;
[[Page 203]]
(K) The following information for any other facility that sends
sewage sludge to the active sewage sludge unit:
(1) The name, contact person, mailing address, and electronic mail
address of the facility; and
(2) Available information regarding the quality of the sewage sludge
received from the facility, including any treatment at the facility to
reduce pathogens or vector attraction characteristics;
(L) Whether any of the vector attraction reduction options of 40 CFR
503.33(b)(9) through (b)(11) is met at the active sewage sludge unit,
and a description of any procedures employed at the time of disposal to
reduce vector attraction properties in sewage sludge;
(M) The following information, as applicable to any ground-water
monitoring occurring at the active sewage sludge unit:
(1) A description of any ground-water monitoring occurring at the
active sewage sludge unit;
(2) Any available ground-water monitoring data, with a description
of the well locations and approximate depth to ground water;
(3) A copy of any ground-water monitoring plan that has been
prepared for the active sewage sludge unit;
(4) A copy of any certification that has been obtained from a
qualified ground-water scientist that the aquifer has not been
contaminated; and
(N) If site-specific pollutant limits are being sought for the
sewage sludge placed on this active sewage sludge unit, information to
support such a request;
(11) Incineration. If sewage sludge from the applicant's facility is
fired in a sewage sludge incinerator, the applicant must provide the
following information:
(i) The total dry metric tons of sewage sludge from the applicant's
facility that is fired in sewage sludge incinerators per 365-day period;
(ii) The following information for each sewage sludge incinerator
firing the applicant's sewage sludge that the applicant does not own or
operate:
(A) The name and/or number, contact person, mailing address,
telephone number, and electronic mail address of the sewage sludge
incinerator; and
(B) The total dry metric tons from the applicant's facility per 365-
day period fired in the sewage sludge incinerator;
(iii) The following information for each sewage sludge incinerator
that the applicant owns or operates:
(A) The name and/or number and the location of the sewage sludge
incinerator;
(B) The incinerator's latitude and longitude to the nearest second,
and method of determination;
(C) The total dry metric tons per 365-day period fired in the sewage
sludge incinerator;
(D) Information, test data, and documentation of ongoing operating
parameters indicating that compliance with the National Emission
Standard for Beryllium in 40 CFR part 61 will be achieved;
(E) Information, test data, and documentation of ongoing operating
parameters indicating that compliance with the National Emission
Standard for Mercury in 40 CFR part 61 will be achieved;
(F) The dispersion factor for the sewage sludge incinerator, as well
as modeling results and supporting documentation;
(G) The control efficiency for parameters regulated in 40 CFR
503.43, as well as performance test results and supporting
documentation;
(H) Information used to calculate the risk specific concentration
(RSC) for chromium, including the results of incinerator stack tests for
hexavalent and total chromium concentrations, if the applicant is
requesting a chromium limit based on a site-specific RSC value;
(I) Whether the applicant monitors total hydrocarbons (THC) or
Carbon Monoxide (CO) in the exit gas for the sewage sludge incinerator;
(J) The type of sewage sludge incinerator;
(K) The maximum performance test combustion temperature, as obtained
during the performance test of the sewage sludge incinerator to
determine pollutant control efficiencies;
[[Page 204]]
(L) The following information on the sewage sludge feed rate used
during the performance test:
(1) Sewage sludge feed rate in dry metric tons per day;
(2) Identification of whether the feed rate submitted is average use
or maximum design; and
(3) A description of how the feed rate was calculated;
(M) The incinerator stack height in meters for each stack, including
identification of whether actual or creditable stack height was used;
(N) The operating parameters for the sewage sludge incinerator air
pollution control device(s), as obtained during the performance test of
the sewage sludge incinerator to determine pollutant control
efficiencies;
(O) Identification of the monitoring equipment in place, including
(but not limited to) equipment to monitor the following:
(1) Total hydrocarbons or Carbon Monoxide;
(2) Percent oxygen;
(3) Percent moisture; and
(4) Combustion temperature; and
(P) A list of all air pollution control equipment used with this
sewage sludge incinerator;
(12) Disposal in a municipal solid waste landfill. If sewage sludge
from the applicant's facility is sent to a municipal solid waste
landfill (MSWLF), the applicant must provide the following information
for each MSWLF to which sewage sludge is sent:
(i) The name, contact person, mailing address, electronic mail
address, location, and all applicable permit numbers of the MSWLF;
(ii) The total dry metric tons per 365-day period sent from this
facility to the MSWLF;
(iii) A determination of whether the sewage sludge meets applicable
requirements for disposal of sewage sludge in a MSWLF, including the
results of the paint filter liquids test and any additional requirements
that apply on a site-specific basis; and
(iv) Information, if known, indicating whether the MSWLF complies
with criteria set forth in 40 CFR part 258;
(13) Contractors. All applicants must provide the name, mailing
address, telephone number, electronic mail address and responsibilities
of all contractors responsible for any operational or maintenance
aspects of the facility related to sewage sludge generation, treatment,
use, or disposal;
(14) Other information. At the request of the permitting authority,
the applicant must provide any other information necessary to determine
the appropriate standards for permitting under 40 CFR part 503, and must
provide any other information necessary to assess the sewage sludge use
and disposal practices, determine whether to issue a permit, or identify
appropriate permit requirements; and
(15) Signature. All applications must be signed by a certifying
official in compliance with Sec. 122.22.
[Note 1: At 46 FR 2046, Jan. 8, 1981, the Environmental Protection
Agency suspended until further notice Sec. 122.21(g)(7)(v)(A) and the
corresponding portions of Item V-C of the NPDES application Form 2C as
they apply to coal mines. This suspension continues in effect.]
[Note 2: At 46 FR 22585, Apr. 20, 1981, the Environmental Protection
Agency suspended until further notice Sec. 122.21(g)(7)(v)(A) and the
corresponding portions of Item V-C of the NPDES application Form 2C as
they apply to:
a. Testing and reporting for all four organic fractions in the
Greige Mills Subcategory of the Textile Mills industry (subpart C--Low
water use processing of 40 CFR part 410), and testing and reporting for
the pesticide fraction in all other subcategories of this industrial
category.
b. Testing and reporting for the volatile, base/neutral and
pesticide fractions in the Base and Precious Metals Subcategory of the
Ore Mining and Dressing industry (subpart B of 40 CFR part 440), and
testing and reporting for all four fractions in all other subcategories
of this industrial category.
c. Testing and reporting for all four GC/MS fractions in the
Porcelain Enameling industry.
This revision continues that suspension.] \1\
[Note 3: At 46 FR 35090, July 1, 1981, the Environmental Protection
Agency suspended until further notice Sec. 122.21(g)(7)(v)(A) and the
corresponding portions of Item V-C of the NPDES application Form 2C as
they apply to:
a. Testing and reporting for the pesticide fraction in the Tall Oil
Rosin Subcategory (subpart D) and Rosin-Based Derivatives Subcategory
(subpart F) of the Gum and Wood Chemicals industry (40 CFR part 454),
and testing and reporting for the pesticide
[[Page 205]]
and base-neutral fractions in all other subcategories of this industrial
category.
b. Testing and reporting for the pesticide fraction in the Leather
Tanning and Finishing, Paint and Ink Formulation, and Photographic
Supplies industrial categories.
c. Testing and reporting for the acid, base/neutral and pesticide
fractions in the Petroleum Refining industrial category.
d. Testing and reporting for the pesticide fraction in the
Papergrade Sulfite subcategories (subparts J and U) of the Pulp and
Paper industry (40 CFR part 430); testing and reporting for the base/
neutral and pesticide fractions in the following subcategories: Deink
(subpart Q), Dissolving Kraft (subpart F), and Paperboard from Waste
Paper (subpart E); testing and reporting for the volatile, base/neutral
and pesticide fractions in the following subcategories: BCT Bleached
Kraft (subpart H), Semi-Chemical (subparts B and C), and Nonintegrated-
Fine Papers (subpart R); and testing and reporting for the acid, base/
neutral, and pesticide fractions in the following subcategories: Fine
Bleached Kraft (subpart I), Dissolving Sulfite Pulp (subpart K),
Groundwood-Fine Papers (subpart O), Market Bleached Kraft (subpart G),
Tissue from Wastepaper (subpart T), and Nonintegrated-Tissue Papers
(subpart S).
e. Testing and reporting for the base/neutral fraction in the Once-
Through Cooling Water, Fly Ash and Bottom Ash Transport Water process
wastestreams of the Steam Electric Power Plant industrial category.
This revision continues that suspension.] \1\
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\1\ Editorial Note: The words ``This revision'' refer to the
document published at 48 FR 14153, Apr. 1, 1983.
---------------------------------------------------------------------------
(r) Application requirements for facilities with cooling water
intake structures--
(1)(i) New facilities with new or modified cooling water intake
structures. New facilities (other than offshore oil and gas extraction
facilities) with cooling water intake structures as defined in part 125,
subpart I of this chapter, must submit to the Director for review the
information required under paragraphs (r)(2) (except (r)(2)(iv)), (3),
and (4) (except (r)(4)(ix), (x), (xi), and (xii)) of this section and
Sec. 125.86 of this chapter as part of the permit application. New
offshore oil and gas extraction facilities with cooling water intake
structures as defined in part 125, subpart N, of this chapter that are
fixed facilities must submit to the Director for review the information
required under paragraphs (r)(2) (except (r)(2)(iv)), (3), and (4)
(except (r)(4)(ix), (x), (xi), and (xii)) of this section and Sec.
125.136 of this chapter as part of their permit application.
(ii) Existing facilities. (A) All existing facilities. The owner or
operator of an existing facility defined at 40 CFR 125.92(k) must submit
to the Director for review the information required under paragraphs
(r)(2) and (3) of this section and applicable provisions of paragraphs
(r)(4), (5), (6), (7), and (8) of this section.
(B) Existing facilities greater than 125 mgd AIF. In addition, the
owner or operator of an existing facility that withdraws greater than
125 mgd actual intake flow (AIF), as defined at 40 CFR 125.92 (a), of
water for cooling purposes must also submit to the Director for review
the information required under paragraphs (r)(9), (10), (11), (12), and
(13) of this section. If the owner or operator of an existing facility
intends to comply with the BTA (best technology available) standards for
entrainment using a closed-cycle recirculating system as defined at 40
CFR 125.92(c), the Director may reduce or waive some or all of the
information required under paragraphs (r)(9) through (13) of this
section.
(C) Additional information. The owner or operator of an existing
facility must also submit such additional information as the Director
determines is necessary pursuant to 40 CFR 125.98(i).
(D) New units at existing facilities. The owner or operator of a new
unit at an existing facility, as defined at 40 CFR 125.92(u), must
submit or update any information previously provided to the Director by
submitting the information required under paragraphs (r)(2), (3), (5),
(8), and (14) of this section and applicable provisions of paragraphs
(r)(4), (6), and (7) of this section. Requests for and approvals of
alternative requirements sought under 40 CFR 125.94(e)(2) or
125.98(b)(7) must be submitted with the permit application.
(E) New units at existing facilities not previously subject to Part
125. The owner or operator of a new unit as defined at 40 CFR 125.92(u)
at an existing facility not previously subject to part 125 of this
chapter that increases the total capacity of the existing facility to
more than 2 mgd DIF must submit the information required under
paragraphs (r)(2), (3), (5), and (8) of this section and
[[Page 206]]
applicable provisions of paragraphs (r)(4), (6), and (7) of this section
at the time of the permit application for the new unit. Requests for
alternative requirements under 40 CFR 125.94(e)(2) or 125.98(b)(7) must
be submitted with the permit application. If the total capacity of the
facility will increase to more than 125 mgd AIF, the owner or operator
must also submit the information required in paragraphs (r)(9) through
(13) of this section. If the owner or operator of an existing facility
intends to comply with the BTA (best technology available) standards for
entrainment using a closed-cycle recirculating system as defined at 40
CFR 125.92(c), the Director may reduce or waive some or all of the
information required under paragraphs (r)(9) through (13) of this
section.
(F) If the owner or operator of an existing facility plans to retire
the facility before the current permit expires, then the requirements of
paragraphs (r)(1)(ii)(A), (B), (C), (D), and (E) of this section do not
apply.
(G) If the owner or operator of an existing facility plans to retire
the facility after the current permit expires but within one permit
cycle, then the Director may waive the requirements of paragraphs
(r)(7), (9), (10), (11), (12), and (13) of this section pending a signed
certification statement from the owner or operator of the facility
specifying the last operating date of the facility.
(H) All facilities. The owner or operator of any existing facility
or new unit at any existing facility must also submit with its permit
application all information received as a result of any communication
with a Field Office of the Fish and Wildlife Service and/or Regional
Office of the National Marine Fisheries Service.
(2) Source water physical data. These include:
(i) A narrative description and scaled drawings showing the physical
configuration of all source water bodies used by your facility,
including areal dimensions, depths, salinity and temperature regimes,
and other documentation that supports your determination of the water
body type where each cooling water intake structure is located;
(ii) Identification and characterization of the source waterbody's
hydrological and geomorphological features, as well as the methods you
used to conduct any physical studies to determine your intake's area of
influence within the waterbody and the results of such studies;
(iii) Locational maps; and
(iv) For new offshore oil and gas facilities that are not fixed
facilities, a narrative description and/or locational maps providing
information on predicted locations within the waterbody during the
permit term in sufficient detail for the Director to determine the
appropriateness of additional impingement requirements under Sec.
125.134(b)(4).
(3) Cooling water intake structure data. These include:
(i) A narrative description of the configuration of each of your
cooling water intake structures and where it is located in the water
body and in the water column;
(ii) Latitude and longitude in degrees, minutes, and seconds for
each of your cooling water intake structures;
(iii) A narrative description of the operation of each of your
cooling water intake structures, including design intake flows, daily
hours of operation, number of days of the year in operation and seasonal
changes, if applicable;
(iv) A flow distribution and water balance diagram that includes all
sources of water to the facility, recirculating flows, and discharges;
and
(v) Engineering drawings of the cooling water intake structure.
(4) Source water baseline biological characterization data. This
information is required to characterize the biological community in the
vicinity of the cooling water intake structure and to characterize the
operation of the cooling water intake structures. The Director may also
use this information in subsequent permit renewal proceedings to
determine if your Design and Construction Technology Plan as required in
Sec. 125.86(b)(4) or Sec. 125.136(b)(3) of this chapter should be
revised. This supporting information must include existing data (if they
are available). However, you may supplement the data using newly
conducted field studies if you choose to do so. The information you
submit must include:
(i) A list of the data in paragraphs (r)(4)(ii) through (vi) of this
section
[[Page 207]]
that are not available and efforts made to identify sources of the data;
(ii) A list of species (or relevant taxa) for all life stages and
their relative abundance in the vicinity of the cooling water intake
structure;
(iii) Identification of the species and life stages that would be
most susceptible to impingement and entrainment. Species evaluated
should include the forage base as well as those most important in terms
of significance to commercial and recreational fisheries;
(iv) Identification and evaluation of the primary period of
reproduction, larval recruitment, and period of peak abundance for
relevant taxa;
(v) Data representative of the seasonal and daily activities (e.g.,
feeding and water column migration) of biological organisms in the
vicinity of the cooling water intake structure;
(vi) Identification of all threatened, endangered, and other
protected species that might be susceptible to impingement and
entrainment at your cooling water intake structures;
(vii) Documentation of any public participation or consultation with
Federal or State agencies undertaken in development of the plan; and
(viii) If you supplement the information requested in paragraph
(r)(4)(i) of this section with data collected using field studies,
supporting documentation for the Source Water Baseline Biological
Characterization must include a description of all methods and quality
assurance procedures for sampling, and data analysis including a
description of the study area; taxonomic identification of sampled and
evaluated biological assemblages (including all life stages of fish and
shellfish); and sampling and data analysis methods. The sampling and/or
data analysis methods you use must be appropriate for a quantitative
survey and based on consideration of methods used in other biological
studies performed within the same source water body. The study area
should include, at a minimum, the area of influence of the cooling water
intake structure.
(ix) In the case of the owner or operator of an existing facility or
new unit at an existing facility, the Source Water Baseline Biological
Characterization Data is the information in paragraphs (r)(4)(i) through
(xii) of this section.
(x) For the owner or operator of an existing facility,
identification of protective measures and stabilization activities that
have been implemented, and a description of how these measures and
activities affected the baseline water condition in the vicinity of the
intake.
(xi) For the owner or operator of an existing facility, a list of
fragile species, as defined at 40 CFR 125.92(m), at the facility. The
applicant need only identify those species not already identified as
fragile at 40 CFR 125.92(m). New units at an existing facility are not
required to resubmit this information if the cooling water withdrawals
for the operation of the new unit are from an existing intake.
(xii) For the owner or operator of an existing facility that has
obtained incidental take exemption or authorization for its cooling
water intake structure(s) from the U.S. Fish and Wildlife Service or the
National Marine Fisheries Service, any information submitted in order to
obtain that exemption or authorization may be used to satisfy the permit
application information requirement of paragraph 40 CFR 125.95(f) if
included in the application.
(5) Cooling Water System Data. The owner or operator of an existing
facility must submit the following information for each cooling water
intake structure used or intended to be used:
(i) A narrative description of the operation of the cooling water
system and its relationship to cooling water intake structures; the
proportion of the design intake flow that is used in the system; the
number of days of the year the cooling water system is in operation and
seasonal changes in the operation of the system, if applicable; the
proportion of design intake flow for contact cooling, non-contact
cooling, and process uses; a distribution of water reuse to include
cooling water reused as process water, process water reused for cooling,
and the use of gray water for cooling; a description of reductions in
total water withdrawals including cooling water intake flow reductions
already achieved through minimized process water withdrawals; a
description of any cooling water that
[[Page 208]]
is used in a manufacturing process either before or after it is used for
cooling, including other recycled process water flows; the proportion of
the source waterbody withdrawn (on a monthly basis);
(ii) Design and engineering calculations prepared by a qualified
professional and supporting data to support the description required by
paragraph (r)(5)(i) of this section; and
(iii) Description of existing impingement and entrainment
technologies or operational measures and a summary of their performance,
including but not limited to reductions in impingement mortality and
entrainment due to intake location and reductions in total water
withdrawals and usage.
(6) Chosen Method(s) of Compliance with Impingement Mortality
Standard. The owner or operator of the facility must identify the chosen
compliance method for the entire facility; alternatively, the applicant
must identify the chosen compliance method for each cooling water intake
structure at its facility. The applicant must identify any intake
structure for which a BTA determination for Impingement Mortality under
40 CFR 125.94 (c)(11) or (12) is requested. In addition, the owner or
operator that chooses to comply via 40 CFR 125.94 (c)(5) or (6) must
also submit an impingement technology performance optimization study as
described below:
(i) If the applicant chooses to comply with 40 CFR 125.94(c)(5),
subject to the flexibility for timing provided in 40 CFR 125.95(a)(2),
the impingement technology performance optimization study must include
two years of biological data collection measuring the reduction in
impingement mortality achieved by the modified traveling screens as
defined at 40 CFR 125.92(s) and demonstrating that the operation has
been optimized to minimize impingement mortality. A complete description
of the modified traveling screens and associated equipment must be
included, including, for example, type of mesh, mesh slot size, pressure
sprays and fish return mechanisms. A description of any biological data
collection and data collection approach used in measuring impingement
mortality must be included:
(A) Collecting data no less frequently than monthly. The Director
may establish more frequent data collection;
(B) Biological data collection representative of the impingement and
the impingement mortality at the intakes subject to this provision;
(C) A taxonomic identification to the lowest taxon possible of all
organisms collected;
(D) The method in which naturally moribund organisms are identified
and taken into account;
(E) The method in which mortality due to holding times is taken into
account;
(F) If the facility entraps fish or shellfish, a count of
entrapment, as defined at 40 CFR 125.92(j), as impingement mortality;
and
(G) The percent impingement mortality reflecting optimized operation
of the modified traveling screen and all supporting calculations.
(ii) If the applicant chooses to comply with 40 CFR 125.94(c)(6),
the impingement technology performance optimization study must include
biological data measuring the reduction in impingement mortality
achieved by operation of the system of technologies, operational
measures and best management practices, and demonstrating that operation
of the system has been optimized to minimize impingement mortality. This
system of technologies, operational measures and best management
practices may include flow reductions, seasonal operation, unit closure,
credit for intake location, and behavioral deterrent systems. The
applicant must document how each system element contributes to the
system's performance. The applicant must include a minimum of two years
of biological data measuring the reduction in impingement mortality
achieved by the system. The applicant must also include a description of
any sampling or data collection approach used in measuring the rate of
impingement, impingement mortality, or flow reductions.
(A) Rate of Impingement. If the demonstration relies in part on a
credit for reductions in the rate of impingement in the system, the
applicant must provide an estimate of those reductions to
[[Page 209]]
be used as credit towards reducing impingement mortality, and any
relevant supporting documentation, including previously collected
biological data, performance reviews, and previously conducted
performance studies not already submitted to the Director. The
submission of studies more than 10 years old must include an explanation
of why the data are still relevant and representative of conditions at
the facility and explain how the data should be interpreted using the
definitions of impingement and entrapment at 40 CFR 125.92(n) and (j),
respectively. The estimated reductions in rate of impingement must be
based on a comparison of the system to a once-through cooling system
with a traveling screen whose point of withdrawal from the surface water
source is located at the shoreline of the source waterbody. For
impoundments that are waters of the United States in whole or in part,
the facility's rate of impingement must be measured at a location within
the cooling water intake system that the Director deems appropriate. In
addition, the applicant must include two years of biological data
collection demonstrating the rate of impingement resulting from the
system. For this demonstration, the applicant must collect data no less
frequently than monthly. The Director may establish more frequent data
collection.
(B) Impingement Mortality. If the demonstration relies in part on a
credit for reductions in impingement mortality already obtained at the
facility, the applicant must include two years of biological data
collection demonstrating the level of impingement mortality the system
is capable of achieving. The applicant must submit any relevant
supporting documentation, including previously collected biological
data, performance reviews, and previously conducted performance studies
not already submitted to the Director. The applicant must provide a
description of any sampling or data collection approach used in
measuring impingement mortality. In addition, for this demonstration the
applicant must:
(1) Collect data no less frequently than monthly. The Director may
establish more frequent data collection;
(2) Conduct biological data collection that is representative of the
impingement and the impingement mortality at an intake subject to this
provision. In addition, the applicant must describe how the location of
the cooling water intake structure in the waterbody and the water column
are accounted for in the points of data collection;
(3) Include a taxonomic identification to the lowest taxon possible
of all organisms to be collected;
(4) Describe the method in which naturally moribund organisms are
identified and taken into account;
(5) Describe the method in which mortality due to holding times is
taken into account; and
(6) If the facility entraps fish or shellfish, a count of the
entrapment, as defined at 40 CFR 125.92(j), as impingement mortality.
(C) Flow reduction. If the demonstration relies in part on flow
reduction to reduce impingement, the applicant must include two years of
intake flows, measured daily, as part of the demonstration, and describe
the extent to which flow reductions are seasonal or intermittent. The
applicant must document how the flow reduction results in reduced
impingement. In addition, the applicant must describe how the reduction
in impingement has reduced impingement mortality.
(D) Total system performance. The applicant must document the
percent impingement mortality reflecting optimized operation of the
total system of technologies, operational measures, and best management
practices and all supporting calculations. The total system performance
is the combination of the impingement mortality performance reflected in
paragraphs (r)(6)(ii)(A), (B), and (C) of this section.
(7) Entrainment Performance Studies. The owner or operator of an
existing facility must submit any previously conducted studies or
studies obtained from other facilities addressing technology efficacy,
through-facility entrainment survival, and other entrainment studies.
Any such submittals must include a description of each study, together
with underlying data, and a summary of any conclusions or results. Any
studies conducted at other
[[Page 210]]
locations must include an explanation as to why the data from other
locations are relevant and representative of conditions at your
facility. In the case of studies more than 10 years old, the applicant
must explain why the data are still relevant and representative of
conditions at the facility and explain how the data should be
interpreted using the definition of entrainment at 40 CFR 125.92(h).
(8) Operational Status. The owner or operator of an existing
facility must submit a description of the operational status of each
generating, production, or process unit that uses cooling water,
including but not limited to:
(i) For power production or steam generation, descriptions of
individual unit operating status including age of each unit, capacity
utilization rate (or equivalent) for the previous 5 years, including any
extended or unusual outages that significantly affect current data for
flow, impingement, entrainment, or other factors, including
identification of any operating unit with a capacity utilization rate of
less than 8 percent averaged over a 24-month block contiguous period,
and any major upgrades completed within the last 15 years, including but
not limited to boiler replacement, condenser replacement, turbine
replacement, or changes to fuel type;
(ii) Descriptions of completed, approved, or scheduled uprates and
Nuclear Regulatory Commission relicensing status of each unit at nuclear
facilities;
(iii) For process units at your facility that use cooling water
other than for power production or steam generation, if you intend to
use reductions in flow or changes in operations to meet the requirements
of 40 CFR 125.94(c), descriptions of individual production processes and
product lines, operating status including age of each line, seasonal
operation, including any extended or unusual outages that significantly
affect current data for flow, impingement, entrainment, or other
factors, any major upgrades completed within the last 15 years, and
plans or schedules for decommissioning or replacement of process units
or production processes and product lines;
(iv) For all manufacturing facilities, descriptions of current and
future production schedules; and
(v) Descriptions of plans or schedules for any new units planned
within the next 5 years.
(9) Entrainment Characterization Study. The owner or operator of an
existing facility that withdraws greater than 125 mgd AIF, where the
withdrawal of cooling water is measured at a location within the cooling
water intake structure that the Director deems appropriate, must develop
for submission to the Director an Entrainment Characterization Study
that includes a minimum of two years of entrainment data collection. The
Entrainment Characterization Study must include the following
components:
(i) Entrainment Data Collection Method. The study should identify
and document the data collection period and frequency. The study should
identify and document organisms collected to the lowest taxon possible
of all life stages of fish and shellfish that are in the vicinity of the
cooling water intake structure(s) and are susceptible to entrainment,
including any organisms identified by the Director, and any species
protected under Federal, State, or Tribal law, including threatened or
endangered species with a habitat range that includes waters in the
vicinity of the cooling water intake structure. Biological data
collection must be representative of the entrainment at the intakes
subject to this provision. The owner or operator of the facility must
identify and document how the location of the cooling water intake
structure in the waterbody and the water column are accounted for by the
data collection locations;
(ii) Biological Entrainment Characterization. Characterization of
all life stages of fish, shellfish, and any species protected under
Federal, State, or Tribal law (including threatened or endangered
species), including a description of their abundance and their temporal
and spatial characteristics in the vicinity of the cooling water intake
structure(s), based on sufficient data to characterize annual, seasonal,
and diel variations in entrainment, including but not limited to
variations related to climate and weather differences,
[[Page 211]]
spawning, feeding, and water column migration. This characterization may
include historical data that are representative of the current operation
of the facility and of biological conditions at the site. Identification
of all life stages of fish and shellfish must include identification of
any surrogate species used, and identification of data representing both
motile and non-motile life-stages of organisms;
(iii) Analysis and Supporting Documentation. Documentation of the
current entrainment of all life stages of fish, shellfish, and any
species protected under Federal, State, or Tribal law (including
threatened or endangered species). The documentation may include
historical data that are representative of the current operation of the
facility and of biological conditions at the site. Entrainment data to
support the facility's calculations must be collected during periods of
representative operational flows for the cooling water intake structure,
and the flows associated with the data collection must be documented.
The method used to determine latent mortality along with data for
specific organism mortality or survival that is applied to other life-
stages or species must be identified. The owner or operator of the
facility must identify and document all assumptions and calculations
used to determine the total entrainment for that facility together with
all methods and quality assurance/quality control procedures for data
collection and data analysis. The proposed data collection and data
analysis methods must be appropriate for a quantitative survey.
(10) Comprehensive Technical Feasibility and Cost Evaluation Study.
The owner or operator of an existing facility that withdraws greater
than 125 mgd AIF must develop for submission to the Director an
engineering study of the technical feasibility and incremental costs of
candidate entrainment control technologies. In addition, the study must
include the following:
(i) Technical feasibility. An evaluation of the technical
feasibility of closed-cycle recirculating systems as defined at 40 CFR
125.92(c), fine mesh screens with a mesh size of 2 millimeters or
smaller, and water reuse or alternate sources of cooling water. In
addition, this study must include:
(A) A description of all technologies and operational measures
considered (including alternative designs of closed-cycle recirculating
systems such as natural draft cooling towers, mechanical draft cooling
towers, hybrid designs, and compact or multi-cell arrangements);
(B) A discussion of land availability, including an evaluation of
adjacent land and acres potentially available due to generating unit
retirements, production unit retirements, other buildings and equipment
retirements, and potential for repurposing of areas devoted to ponds,
coal piles, rail yards, transmission yards, and parking lots;
(C) A discussion of available sources of process water, grey water,
waste water, reclaimed water, or other waters of appropriate quantity
and quality for use as some or all of the cooling water needs of the
facility; and
(D) Documentation of factors other than cost that may make a
candidate technology impractical or infeasible for further evaluation.
(ii) Other entrainment control technologies. An evaluation of
additional technologies for reducing entrainment may be required by the
Director.
(iii) Cost evaluations. The study must include engineering cost
estimates of all technologies considered in paragraphs (r)(10)(i) and
(ii) of this section. Facility costs must also be adjusted to estimate
social costs. All costs must be presented as the net present value (NPV)
and the corresponding annual value. Costs must be clearly labeled as
compliance costs or social costs. The applicant must separately discuss
facility level compliance costs and social costs, and provide
documentation as follows:
(A) Compliance costs are calculated as after-tax, while social costs
are calculated as pre-tax. Compliance costs include the facility's
administrative costs, including costs of permit application, while the
social cost adjustment includes the Director's administrative costs. Any
outages, downtime, or other impacts to facility net revenue, are
included in compliance costs,
[[Page 212]]
while only that portion of lost net revenue that does not accrue to
other producers can be included in social costs. Social costs must also
be discounted using social discount rates of 3 percent and 7 percent.
Assumptions regarding depreciation schedules, tax rates, interest rates,
discount rates and related assumptions must be identified;
(B) Costs and explanation of any additional facility modifications
necessary to support construction and operation of technologies
considered in paragraphs (r)(10)(i) and (ii) of this section, including
but not limited to relocation of existing buildings or equipment,
reinforcement or upgrading of existing equipment, and additional
construction and operating permits. Assumptions regarding depreciation
schedules, interest rates, discount rates, useful life of the technology
considered, and any related assumptions must be identified; and
(C) Costs and explanation for addressing any non-water quality
environmental and other impacts identified in paragraph (r)(12) of this
section. The cost evaluation must include a discussion of all reasonable
attempts to mitigate each of these impacts.
(11) Benefits Valuation Study. The owner or operator of an existing
facility that withdraws greater than 125 mgd AIF must develop for
submission to the Director an evaluation of the benefits of the
candidate entrainment reduction technologies and operational measures
evaluated in paragraph (r)(10) of this section including using the
Entrainment Characterization Study completed in paragraph (r)(9) of this
section. Each category of benefits must be described narratively, and
when possible, benefits should be quantified in physical or biological
units and monetized using appropriate economic valuation methods. The
benefits valuation study must include, but is not limited to, the
following elements:
(i) Incremental changes in the numbers of individual fish and
shellfish lost due to impingement mortality and entrainment as defined
in 40 CFR 125.92, for all life stages of each exposed species;
(ii) Description of basis for any estimates of changes in the stock
sizes or harvest levels of commercial and recreational fish or shellfish
species or forage fish species;
(iii) Description of basis for any monetized values assigned to
changes in the stock size or harvest levels of commercial and
recreational fish or shellfish species, forage fish, and to any other
ecosystem or non use benefits;
(iv) A discussion of mitigation efforts completed prior to October
14, 2014 including how long they have been in effect and how effective
they have been;
(v) Discussion, with quantification and monetization, where
possible, of any other benefits expected to accrue to the environment
and local communities, including but not limited to improvements for
mammals, birds, and other organisms and aquatic habitats;
(vi) Discussion, with quantification and monetization, where
possible, of any benefits expected to result from any reductions in
thermal discharges from entrainment technologies.
(12) Non-water Quality Environmental and Other Impacts Study. The
owner or operator of an existing facility that withdraws greater than
125 mgd AIF must develop for submission to the Director a detailed
facility-specific discussion of the changes in non-water quality
environmental and other impacts attributed to each technology and
operational measure considered in paragraph (r)(10) of this section,
including both impacts increased and impacts decreased. The study must
include the following:
(i) Estimates of changes to energy consumption, including but not
limited to auxiliary power consumption and turbine backpressure energy
penalty;
(ii) Estimates of air pollutant emissions and of the human health
and environmental impacts associated with such emissions;
(iii) Estimates of changes in noise;
(iv) A discussion of impacts to safety, including documentation of
the potential for plumes, icing, and availability of emergency cooling
water;
(v) A discussion of facility reliability, including but not limited
to facility availability, production of steam, impacts to production
based on process unit heating or cooling, and reliability due to cooling
water availability;
[[Page 213]]
(vi) Significant changes in consumption of water, including a
facility-specific comparison of the evaporative losses of both once-
through cooling and closed-cycle recirculating systems, and
documentation of impacts attributable to changes in water consumption;
and
(vii) A discussion of all reasonable attempts to mitigate each of
these factors.
(13) Peer Review. If the applicant is required to submit studies
under paragraphs (r)(10) through (12) of this section, the applicant
must conduct an external peer review of each report to be submitted with
the permit application. The applicant must select peer reviewers and
notify the Director in advance of the peer review. The Director may
disapprove of a peer reviewer or require additional peer reviewers. The
Director may confer with EPA, Federal, State and Tribal fish and
wildlife management agencies with responsibility for fish and wildlife
potentially affected by the cooling water intake structure, independent
system operators, and state public utility regulatory agencies, to
determine which peer review comments must be addressed. The applicant
must provide an explanation for any significant reviewer comments not
accepted. Peer reviewers must have appropriate qualifications and their
names and credentials must be included in the peer review report.
(14) New Units. The applicant must identify the chosen compliance
method for the new unit. In addition, the owner or operator that selects
the BTA standards for new units at 40 CFR 125.94 (e)(2) as its route to
compliance must submit information to demonstrate entrainment reductions
equivalent to 90 percent or greater of the reduction that could be
achieved through compliance with 40 CFR 125.94(e)(1). The demonstration
must include the Entrainment Characterization Study at paragraph (r)(9)
of this section. In addition, if data specific to your facility
indicates that compliance with the requirements of Sec. 125.94 of this
chapter for each new unit would result in compliance costs wholly out of
proportion to the costs EPA considered in establishing the requirements
at issue, or would result in significant adverse impacts on local air
quality, significant adverse impacts on local water resources other than
impingement or entrainment, or significant adverse impacts on local
energy markets, you must submit all supporting data as part of paragraph
(r)(14) of this section. The Director may determine that additional data
and information, including but not limited to monitoring, must be
included as part of paragraph (r)(14) of this section.
[48 FR 14153, Apr. 1, 1983]
Editorial Note: For Federal Register citations affecting Sec.
122.21, see the List of CFR Sections Affected, which appears in the
Finding Aids section of the printed volume and at www.govinfo.gov.
Sec. 122.22 Signatories to permit applications and reports
(applicable to State programs, see Sec. 123.25).
(a) Applications. All permit applications shall be signed as
follows:
(1) For a corporation. By a responsible corporate officer. For the
purpose of this section, a responsible corporate officer means: (i) A
president, secretary, treasurer, or vice-president of the corporation in
charge of a principal business function, or any other person who perfoms
similar policy- or decision-making functions for the corporation, or
(ii) the manager of one or more manufacturing, production, or operating
facilities, provided, the manager is authorized to make management
decisions which govern the operation of the regulated facility including
having the explicit or implicit duty of making major capital investment
recommendations, and initiating and directing other comprehensive
measures to assure long term environmental compliance with environmental
laws and regulations; the manager can ensure that the necessary systems
are established or actions taken to gather complete and accurate
information for permit application requirements; and where authority to
sign documents has been assigned or delegated to the manager in
accordance with corporate procedures.
Note: EPA does not require specific assignments or delegations of
authority to responsible corporate officers identified in Sec.
122.22(a)(1)(i). The Agency will presume that these responsible
corporate officers have the requisite authority to sign permit
applications unless the corporation has notified the
[[Page 214]]
Director to the contrary. Corporate procedures governing authority to
sign permit applications may provide for assignment or delegation to
applicable corporate positions under Sec. 122.22(a)(1)(ii) rather than
to specific individuals.
(2) For a partnership or sole proprietorship. By a general partner
or the proprietor, respectively; or
(3) For a municipality, State, Federal, or other public agency. By
either a principal executive officer or ranking elected official. For
purposes of this section, a principal executive officer of a Federal
agency includes: (i) The chief executive officer of the agency, or (ii)
a senior executive officer having responsibility for the overall
operations of a principal geographic unit of the agency (e.g., Regional
Administrators of EPA).
(b) All reports required by permits, and other information requested
by the Director shall be signed by a person described in paragraph (a)
of this section, or by a duly authorized representative of that person.
A person is a duly authorized representative only if:
(1) The authorization is made in writing by a person described in
paragraph (a) of this section;
(2) The authorization specifies either an individual or a position
having responsibility for the overall operation of the regulated
facility or activity such as the position of plant manager, operator of
a well or a well field, superintendent, position of equivalent
responsibility, or an individual or position having overall
responsibility for environmental matters for the company, (A duly
authorized representative may thus be either a named individual or any
individual occupying a named position.) and,
(3) The written authorization is submitted to the Director.
(c) Changes to authorization. If an authorization under paragraph
(b) of this section is no longer accurate because a different individual
or position has responsibility for the overall operation of the
facility, a new authorization satisfying the requirements of paragraph
(b) of this section must be submitted to the Director prior to or
together with any reports, information, or applications to be signed by
an authorized representative.
(d) Certification. Any person signing a document under paragraph (a)
or (b) of this section shall make the following certification:
I certify under penalty of law that this document and all
attachments were prepared under my direction or supervision in
accordance with a system designed to assure that qualified personnel
properly gather and evaluate the information submitted. Based on my
inquiry of the person or persons who manage the system, or those persons
directly responsible for gathering the information, the information
submitted is, to the best of my knowledge and belief, true, accurate,
and complete. I am aware that there are significant penalties for
submitting false information, including the possibility of fine and
imprisonment for knowing violations.
(e) Electronic reporting. If documents described in paragraph (a) or
(b) of this section are submitted electronically by or on behalf of the
NPDES-regulated facility, any person providing the electronic signature
for such documents shall meet all relevant requirements of this section,
and shall ensure that all of the relevant requirements of 40 CFR part 3
(including, in all cases, subpart D to part 3) (Cross-Media Electronic
Reporting) and 40 CFR part 127 (NPDES Electronic Reporting Requirements)
are met for that submission.
(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; 80 FR 64096, Oct. 22, 2015]
Sec. 122.23 Concentrated animal feeding operations (applicable to
State NPDES programs, see Sec. 123.25).
(a) Scope. Concentrated animal feeding operations (CAFOs), as
defined in paragraph (b) of this section or designated in accordance
with paragraph (c) of this section, are point sources, subject to NPDES
permitting requirements as provided in this section. Once an animal
feeding operation is defined as a CAFO for at least one type of animal,
the NPDES requirements for CAFOs apply with respect to all animals in
confinement at the operation and all manure, litter, and process
wastewater generated by those animals or the production of those
animals, regardless of the type of animal.
[[Page 215]]
(b) Definitions applicable to this section:
(1) Animal feeding operation (``AFO'') means a lot or facility
(other than an aquatic animal production facility) where the following
conditions are met:
(i) Animals (other than aquatic animals) have been, are, or will be
stabled or confined and fed or maintained for a total of 45 days or more
in any 12-month period, and
(ii) Crops, vegetation, forage growth, or post-harvest residues are
not sustained in the normal growing season over any portion of the lot
or facility.
(2) Concentrated animal feeding operation (``CAFO'') means an AFO
that is defined as a Large CAFO or as a Medium CAFO by the terms of this
paragraph, or that is designated as a CAFO in accordance with paragraph
(c) of this section. Two or more AFOs under common ownership are
considered to be a single AFO for the purposes of determining the number
of animals at an operation, if they adjoin each other or if they use a
common area or system for the disposal of wastes.
(3) The term land application area means land under the control of
an AFO owner or operator, whether it is owned, rented, or leased, to
which manure, litter or process wastewater from the production area is
or may be applied.
(4) Large concentrated animal feeding operation (``Large CAFO''). An
AFO is defined as a Large CAFO if it stables or confines as many as or
more than the numbers of animals specified in any of the following
categories:
(i) 700 mature dairy cows, whether milked or dry;
(ii) 1,000 veal calves;
(iii) 1,000 cattle other than mature dairy cows or veal calves.
Cattle includes but is not limited to heifers, steers, bulls and cow/
calf pairs;
(iv) 2,500 swine each weighing 55 pounds or more;
(v) 10,000 swine each weighing less than 55 pounds;
(vi) 500 horses;
(vii) 10,000 sheep or lambs;
(viii) 55,000 turkeys;
(ix) 30,000 laying hens or broilers, if the AFO uses a liquid manure
handling system;
(x) 125,000 chickens (other than laying hens), if the AFO uses other
than a liquid manure handling system;
(xi) 82,000 laying hens, if the AFO uses other than a liquid manure
handling system;
(xii) 30,000 ducks (if the AFO uses other than a liquid manure
handling system); or
(xiii) 5,000 ducks (if the AFO uses a liquid manure handling
system).
(5) The term manure is defined to include manure, bedding, compost
and raw materials or other materials commingled with manure or set aside
for disposal.
(6) Medium concentrated animal feeding operation (``Medium CAFO'').
The term Medium CAFO includes any AFO with the type and number of
animals that fall within any of the ranges listed in paragraph (b)(6)(i)
of this section and which has been defined or designated as a CAFO. An
AFO is defined as a Medium CAFO if:
(i) The type and number of animals that it stables or confines falls
within any of the following ranges:
(A) 200 to 699 mature dairy cows, whether milked or dry;
(B) 300 to 999 veal calves;
(C) 300 to 999 cattle other than mature dairy cows or veal calves.
Cattle includes but is not limited to heifers, steers, bulls and cow/
calf pairs;
(D) 750 to 2,499 swine each weighing 55 pounds or more;
(E) 3,000 to 9,999 swine each weighing less than 55 pounds;
(F) 150 to 499 horses;
(G) 3,000 to 9,999 sheep or lambs;
(H) 16,500 to 54,999 turkeys;
(I) 9,000 to 29,999 laying hens or broilers, if the AFO uses a
liquid manure handling system;
(J) 37,500 to 124,999 chickens (other than laying hens), if the AFO
uses other than a liquid manure handling system;
(K) 25,000 to 81,999 laying hens, if the AFO uses other than a
liquid manure handling system;
(L) 10,000 to 29,999 ducks (if the AFO uses other than a liquid
manure handling system); or
(M) 1,500 to 4,999 ducks (if the AFO uses a liquid manure handling
system); and
[[Page 216]]
(ii) Either one of the following conditions are met:
(A) Pollutants are discharged into waters of the United States
through a man-made ditch, flushing system, or other similar man-made
device; or
(B) Pollutants are discharged directly into waters of the United
States which originate outside of and pass over, across, or through the
facility or otherwise come into direct contact with the animals confined
in the operation.
(7) Process wastewater means water directly or indirectly used in
the operation of the AFO for any or all of the following: spillage or
overflow from animal or poultry watering systems; washing, cleaning, or
flushing pens, barns, manure pits, or other AFO facilities; direct
contact swimming, washing, or spray cooling of animals; or dust control.
Process wastewater also includes any water which comes into contact with
any raw materials, products, or byproducts including manure, litter,
feed, milk, eggs or bedding.
(8) Production area means that part of an AFO that includes the
animal confinement area, the manure storage area, the raw materials
storage area, and the waste containment areas. The animal confinement
area includes but is not limited to open lots, housed lots, feedlots,
confinement houses, stall barns, free stall barns, milkrooms, milking
centers, cowyards, barnyards, medication pens, walkers, animal walkways,
and stables. The manure storage area includes but is not limited to
lagoons, runoff ponds, storage sheds, stockpiles, under house or pit
storages, liquid impoundments, static piles, and composting piles. The
raw materials storage area includes but is not limited to feed silos,
silage bunkers, and bedding materials. The waste containment area
includes but is not limited to settling basins, and areas within berms
and diversions which separate uncontaminated storm water. Also included
in the definition of production area is any egg washing or egg
processing facility, and any area used in the storage, handling,
treatment, or disposal of mortalities.
(9) Small concentrated animal feeding operation (``Small CAFO''). An
AFO that is designated as a CAFO and is not a Medium CAFO.
(c) How may an AFO be designated as a CAFO? The appropriate
authority (i.e., State Director or Regional Administrator, or both, as
specified in paragraph (c)(1) of this section) may designate any AFO as
a CAFO upon determining that it is a significant contributor of
pollutants to waters of the United States.
(1) Who may designate?--(i) Approved States. In States that are
approved or authorized by EPA under Part 123, CAFO designations may be
made by the State Director. The Regional Administrator may also
designate CAFOs in approved States, but only where the Regional
Administrator has determined that one or more pollutants in the AFO's
discharge contributes to an impairment in a downstream or adjacent State
or Indian country water that is impaired for that pollutant.
(ii) States with no approved program. The Regional Administrator may
designate CAFOs in States that do not have an approved program and in
Indian country where no entity has expressly demonstrated authority and
has been expressly authorized by EPA to implement the NPDES program.
(2) In making this designation, the State Director or the Regional
Administrator shall consider the following factors:
(i) The size of the AFO and the amount of wastes reaching waters of
the United States;
(ii) The location of the AFO relative to waters of the United
States;
(iii) The means of conveyance of animal wastes and process waste
waters into waters of the United States;
(iv) The slope, vegetation, rainfall, and other factors affecting
the likelihood or frequency of discharge of animal wastes manure and
process waste waters into waters of the United States; and
(v) Other relevant factors.
(3) No AFO shall be designated under this paragraph unless the State
Director or the Regional Administrator has conducted an on-site
inspection of the operation and determined that the operation should and
could be regulated under the permit program. In addition, no AFO with
numbers of animals below
[[Page 217]]
those established in paragraph (b)(6) of this section may be designated
as a CAFO unless:
(i) Pollutants are discharged into waters of the United States
through a manmade ditch, flushing system, or other similar manmade
device; or
(ii) Pollutants are discharged directly into waters of the United
States which originate outside of the facility and pass over, across, or
through the facility or otherwise come into direct contact with the
animals confined in the operation.
(d) NPDES permit authorization--(1) Permit Requirement. A CAFO must
not discharge unless the discharge is authorized by an NPDES permit. In
order to obtain authorization under an NPDES permit, the CAFO owner or
operator must either apply for an individual NPDES permit or submit a
notice of intent for coverage under an NPDES general permit.
(2) Information to submit with permit application or notice of
intent. An application for an individual permit must include the
information specified in Sec. 122.21. A notice of intent for a general
permit must include the information specified in Sec. Sec. 122.21 and
122.28.
(3) Information to submit with permit application. A permit
application for an individual permit must include the information
specified in Sec. 122.21. A notice of intent for a general permit must
include the information specified in Sec. Sec. 122.21 and 122.28.
(e) Land application discharges from a CAFO are subject to NPDES
requirements. The discharge of manure, litter or process wastewater to
waters of the United States from a CAFO as a result of the application
of that manure, litter or process wastewater by the CAFO to land areas
under its control is a discharge from that CAFO subject to NPDES permit
requirements, except where it is an agricultural storm water discharge
as provided in 33 U.S.C. 1362(14). For purposes of this paragraph, where
the manure, litter or process wastewater has been applied in accordance
with site specific nutrient management practices that ensure appropriate
agricultural utilization of the nutrients in the manure, litter or
process wastewater, as specified in Sec. 122.42(e)(1)(vi)-(ix), a
precipitation-related discharge of manure, litter or process wastewater
from land areas under the control of a CAFO is an agricultural
stormwater discharge.
(1) For unpermitted Large CAFOs, a precipitation-related discharge
of manure, litter, or process wastewater from land areas under the
control of a CAFO shall be considered an agricultural stormwater
discharge only where the manure, litter, or process wastewater has been
land applied in accordance with site-specific nutrient management
practices that ensure appropriate agricultural utilization of the
nutrients in the manure, litter, or process wastewater, as specified in
Sec. 122.42(e)(1)(vi) through (ix).
(2) Unpermitted Large CAFOs must maintain documentation specified in
Sec. 122.42(e)(1)(ix) either on site or at a nearby office, or
otherwise make such documentation readily available to the Director or
Regional Administrator upon request.
(f) By when must the owner or operator of a CAFO have an NPDES
permit if it discharges? A CAFO must be covered by a permit at the time
that it discharges.
(g) [Reserved]
(h) Procedures for CAFOs seeking coverage under a general permit.
(1) CAFO owners or operators must submit a notice of intent when seeking
authorization to discharge under a general permit in accordance with
Sec. 122.28(b). The Director must review notices of intent submitted by
CAFO owners or operators to ensure that the notice of intent includes
the information required by Sec. 122.21(i)(1), including a nutrient
management plan that meets the requirements of Sec. 122.42(e) and
applicable effluent limitations and standards, including those specified
in 40 CFR part 412. When additional information is necessary to complete
the notice of intent or clarify, modify, or supplement previously
submitted material, the Director may request such information from the
owner or operator. If the Director makes a preliminary determination
that the notice of intent meets the requirements of Sec. Sec.
122.21(i)(1) and 122.42(e), the Director must notify the public of the
Director's proposal to grant coverage under the permit to the CAFO and
make available for public review and comment the notice of intent
[[Page 218]]
submitted by the CAFO, including the CAFO's nutrient management plan,
and the draft terms of the nutrient management plan to be incorporated
into the permit. The process for submitting public comments and hearing
requests, and the hearing process if a request for a hearing is granted,
must follow the procedures applicable to draft permits set forth in 40
CFR 124.11 through 124.13. The Director may establish, either by
regulation or in the general permit, an appropriate period of time for
the public to comment and request a hearing that differs from the time
period specified in 40 CFR 124.10. The Director must respond to
significant comments received during the comment period, as provided in
40 CFR 124.17, and, if necessary, require the CAFO owner or operator to
revise the nutrient management plan in order to be granted permit
coverage. When the Director authorizes coverage for the CAFO owner or
operator under the general permit, the terms of the nutrient management
plan shall become incorporated as terms and conditions of the permit for
the CAFO. The Director shall notify the CAFO owner or operator and
inform the public that coverage has been authorized and of the terms of
the nutrient management plan incorporated as terms and conditions of the
permit applicable to the CAFO.
(2) For EPA-issued permits only. The Regional Administrator shall
notify each person who has submitted written comments on the proposal to
grant coverage and the draft terms of the nutrient management plan or
requested notice of the final permit decision. Such notification shall
include notice that coverage has been authorized and of the terms of the
nutrient management plan incorporated as terms and conditions of the
permit applicable to the CAFO.
(3) Nothing in this paragraph (h) shall affect the authority of the
Director to require an individual permit under Sec. 122.28(b)(3).
[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]
Sec. 122.24 Concentrated aquatic animal production facilities
(applicable to State NPDES programs, see Sec. 123.25).
(a) Permit requirement. Concentrated aquatic animal production
facilities, as defined in this section, are point sources subject to the
NPDES permit program.
(b) Definition. Concentrated aquatic animal production facility
means a hatchery, fish farm, or other facility which meets the criteria
in appendix C of this part, or which the Director designates under
paragraph (c) of this section.
(c) Case-by-case designation of concentrated aquatic animal
production facilities. (1) The Director may designate any warm or cold
water aquatic animal production facility as a concentrated aquatic
animal production facility upon determining that it is a significant
contributor of pollution to waters of the United States. In making this
designation the Director shall consider the following factors:
(i) The location and quality of the receiving waters of the United
States;
(ii) The holding, feeding, and production capacities of the
facility;
(iii) The quantity and nature of the pollutants reaching waters of
the United States; and
(iv) Other relevant factors.
(2) A permit application shall not be required from a concentrated
aquatic animal production facility designated under this paragraph until
the Director has conducted on-site inspection of the facility and has
determined that the facility should and could be regulated under the
permit program.
[48 FR 14153, Apr. 1, 1983, as amended at 65 FR 30907, May 15, 2000]
Sec. 122.25 Aquaculture projects (applicable to State NPDES
programs, see Sec. 123.25).
(a) Permit requirement. Discharges into aquaculture projects, as
defined in this section, are subject to the NPDES permit program through
section 318 of CWA, and in accordance with 40 CFR part 125, subpart B.
(b) Definitions. (1) Aquaculture project means a defined managed
water area which uses discharges of pollutants
[[Page 219]]
into that designated area for the maintenance or production of
harvestable freshwater, estuarine, or marine plants or animals.
(2) Designated project area means the portions of the waters of the
United States within which the permittee or permit applicant plans to
confine the cultivated species, using a method or plan or operation
(including, but not limited to, physical confinement) which, on the
basis of reliable scientific evidence, is expected to ensure that
specific individual organisms comprising an aquaculture crop will enjoy
increased growth attributable to the discharge of pollutants, and be
harvested within a defined geographic area.
Sec. 122.26 Storm water discharges (applicable to State NPDES
programs, see Sec. 123.25).
(a) Permit requirement. (1) Prior to October 1, 1994, discharges
composed entirely of storm water shall not be required to obtain a NPDES
permit except:
(i) A discharge with respect to which a permit has been issued prior
to February 4, 1987;
(ii) A discharge associated with industrial activity (see Sec.
122.26(a)(4));
(iii) A discharge from a large municipal separate storm sewer
system;
(iv) A discharge from a medium municipal separate storm sewer
system;
(v) A discharge which the Director, or in States with approved NPDES
programs, either the Director or the EPA Regional Administrator,
determines to contribute to a violation of a water quality standard or
is a significant contributor of pollutants to waters of the United
States. This designation may include a discharge from any conveyance or
system of conveyances used for collecting and conveying storm water
runoff or a system of discharges from municipal separate storm sewers,
except for those discharges from conveyances which do not require a
permit under paragraph (a)(2) of this section or agricultural storm
water runoff which is exempted from the definition of point source at
Sec. 122.2.
The Director may designate discharges from municipal separate storm
sewers on a system-wide or jurisdiction-wide basis. In making this
determination the Director may consider the following factors:
(A) The location of the discharge with respect to waters of the
United States as defined at 40 CFR 122.2.
(B) The size of the discharge;
(C) The quantity and nature of the pollutants discharged to waters
of the United States; and
(D) Other relevant factors.
(2) The Director may not require a permit for discharges of storm
water runoff from the following:
(i) Mining operations composed entirely of flows which are from
conveyances or systems of conveyances (including but not limited to
pipes, conduits, ditches, and channels) used for collecting and
conveying precipitation runoff and which are not contaminated by contact
with or that have not come into contact with, any overburden, raw
material, intermediate products, finished product, byproduct, or waste
products located on the site of such operations, except in accordance
with paragraph (c)(1)(iv) of this section.
(ii) All field activities or operations associated with oil and gas
exploration, production, processing, or treatment operations or
transmission facilities, including activities necessary to prepare a
site for drilling and for the movement and placement of drilling
equipment, whether or not such field activities or operations may be
considered to be construction activities, except in accordance with
paragraph (c)(1)(iii) of this section. Discharges of sediment from
construction activities associated with oil and gas exploration,
production, processing, or treatment operations or transmission
facilities are not subject to the provisions of paragraph (c)(1)(iii)(C)
of this section.
Note to paragraph (a)(2)(ii): EPA encourages operators of oil and
gas field activities or operations to implement and maintain Best
Management Practices (BMPs) to minimize discharges of pollutants,
including sediment, in storm water both during and after construction
activities to help ensure protection of surface water quality during
storm events. Appropriate controls would be those suitable to the site
conditions and consistent with generally accepted engineering design
criteria and manufacturer specifications. Selection of BMPs could also
be affected by seasonal or climate conditions.
[[Page 220]]
(3) Large and medium municipal separate storm sewer systems. (i)
Permits must be obtained for all discharges from large and medium
municipal separate storm sewer systems.
(ii) The Director may either issue one system-wide permit covering
all discharges from municipal separate storm sewers within a large or
medium municipal storm sewer system or issue distinct permits for
appropriate categories of discharges within a large or medium municipal
separate storm sewer system including, but not limited to: all
discharges owned or operated by the same municipality; located within
the same jurisdiction; all discharges within a system that discharge to
the same watershed; discharges within a system that are similar in
nature; or for individual discharges from municipal separate storm
sewers within the system.
(iii) The operator of a discharge from a municipal separate storm
sewer which is part of a large or medium municipal separate storm sewer
system must either:
(A) Participate in a permit application (to be a permittee or a co-
permittee) with one or more other operators of discharges from the large
or medium municipal storm sewer system which covers all, or a portion of
all, discharges from the municipal separate storm sewer system;
(B) Submit a distinct permit application which only covers
discharges from the municipal separate storm sewers for which the
operator is responsible; or
(C) A regional authority may be responsible for submitting a permit
application under the following guidelines:
(1) The regional authority together with co-applicants shall have
authority over a storm water management program that is in existence, or
shall be in existence at the time part 1 of the application is due;
(2) The permit applicant or co-applicants shall establish their
ability to make a timely submission of part 1 and part 2 of the
municipal application;
(3) Each of the operators of municipal separate storm sewers within
the systems described in paragraphs (b)(4) (i), (ii), and (iii) or
(b)(7) (i), (ii), and (iii) of this section, that are under the purview
of the designated regional authority, shall comply with the application
requirements of paragraph (d) of this section.
(iv) One permit application may be submitted for all or a portion of
all municipal separate storm sewers within adjacent or interconnected
large or medium municipal separate storm sewer systems. The Director may
issue one system-wide permit covering all, or a portion of all municipal
separate storm sewers in adjacent or interconnected large or medium
municipal separate storm sewer systems.
(v) Permits for all or a portion of all discharges from large or
medium municipal separate storm sewer systems that are issued on a
system-wide, jurisdiction-wide, watershed or other basis may specify
different conditions relating to different discharges covered by the
permit, including different management programs for different drainage
areas which contribute storm water to the system.
(vi) Co-permittees need only comply with permit conditions relating
to discharges from the municipal separate storm sewers for which they
are operators.
(4) Discharges through large and medium municipal separate storm
sewer systems. In addition to meeting the requirements of paragraph (c)
of this section, an operator of a storm water discharge associated with
industrial activity which discharges through a large or medium municipal
separate storm sewer system shall submit, to the operator of the
municipal separate storm sewer system receiving the discharge no later
than May 15, 1991, or 180 days prior to commencing such discharge: the
name of the facility; a contact person and phone number; the location of
the discharge; a description, including Standard Industrial
Classification, which best reflects the principal products or services
provided by each facility; and any existing NPDES permit number.
(5) Other municipal separate storm sewers. The Director may issue
permits for municipal separate storm sewers that are designated under
paragraph (a)(1)(v) of this section on a system-
[[Page 221]]
wide basis, jurisdiction-wide basis, watershed basis or other
appropriate basis, or may issue permits for individual discharges.
(6) Non-municipal separate storm sewers. For storm water discharges
associated with industrial activity from point sources which discharge
through a non-municipal or non-publicly owned separate storm sewer
system, the Director, in his discretion, may issue: a single NPDES
permit, with each discharger a co-permittee to a permit issued to the
operator of the portion of the system that discharges into waters of the
United States; or, individual permits to each discharger of storm water
associated with industrial activity through the non-municipal conveyance
system.
(i) All storm water discharges associated with industrial activity
that discharge through a storm water discharge system that is not a
municipal separate storm sewer must be covered by an individual permit,
or a permit issued to the operator of the portion of the system that
discharges to waters of the United States, with each discharger to the
non-municipal conveyance a co-permittee to that permit.
(ii) Where there is more than one operator of a single system of
such conveyances, all operators of storm water discharges associated
with industrial activity must submit applications.
(iii) Any permit covering more than one operator shall identify the
effluent limitations, or other permit conditions, if any, that apply to
each operator.
(7) Combined sewer systems. Conveyances that discharge storm water
runoff combined with municipal sewage are point sources that must obtain
NPDES permits in accordance with the procedures of Sec. 122.21 and are
not subject to the provisions of this section.
(8) Whether a discharge from a municipal separate storm sewer is or
is not subject to regulation under this section shall have no bearing on
whether the owner or operator of the discharge is eligible for funding
under title II, title III or title VI of the Clean Water Act. See 40 CFR
part 35, subpart I, appendix A(b)H.2.j.
(9)(i) On and after October 1, 1994, for discharges composed
entirely of storm water, that are not required by paragraph (a)(1) of
this section to obtain a permit, operators shall be required to obtain a
NPDES permit only if:
(A) The discharge is from a small MS4 required to be regulated
pursuant to Sec. 122.32;
(B) The discharge is a storm water discharge associated with small
construction activity pursuant to paragraph (b)(15) of this section;
(C) The Director, or in States with approved NPDES programs either
the Director or the EPA Regional Administrator, determines that storm
water controls are needed for the discharge based on wasteload
allocations that are part of ``total maximum daily loads'' (TMDLs) that
address the pollutant(s) of concern; or
(D) The Director, or in States with approved NPDES programs either
the Director or the EPA Regional Administrator, determines that the
discharge, or category of discharges within a geographic area,
contributes to a violation of a water quality standard or is a
significant contributor of pollutants to waters of the United States.
(ii) Operators of small MS4s designated pursuant to paragraphs
(a)(9)(i)(A), (a)(9)(i)(C), and (a)(9)(i)(D) of this section shall seek
coverage under an NPDES permit in accordance with Sec. Sec. 122.33
through 122.35. Operators of non-municipal sources designated pursuant
to paragraphs (a)(9)(i)(B), (a)(9)(i)(C), and (a)(9)(i)(D) of this
section shall seek coverage under an NPDES permit in accordance with
paragraph (c)(1) of this section.
(iii) Operators of storm water discharges designated pursuant to
paragraphs (a)(9)(i)(C) and (a)(9)(i)(D) of this section shall apply to
the Director for a permit within 180 days of receipt of notice, unless
permission for a later date is granted by the Director (see Sec.
124.52(c) of this chapter).
(b) Definitions. (1) Co-permittee means a permittee to a NPDES
permit that is only responsible for permit conditions relating to the
discharge for which it is operator.
(2) Illicit discharge means any discharge to a municipal separate
storm sewer that is not composed entirely of storm water except
discharges pursuant to a NPDES permit (other than the
[[Page 222]]
NPDES permit for discharges from the municipal separate storm sewer) and
discharges resulting from fire fighting activities.
(3) Incorporated place means the District of Columbia, or a city,
town, township, or village that is incorporated under the laws of the
State in which it is located.
(4) Large municipal separate storm sewer system means all municipal
separate storm sewers that are either:
(i) Located in an incorporated place with a population of 250,000 or
more as determined by the 1990 Decennial Census by the Bureau of the
Census (Appendix F of this part); or
(ii) Located in the counties listed in appendix H, except municipal
separate storm sewers that are located in the incorporated places,
townships or towns within such counties; or
(iii) Owned or operated by a municipality other than those described
in paragraph (b)(4) (i) or (ii) of this section and that are designated
by the Director as part of the large or medium municipal separate storm
sewer system due to the interrelationship between the discharges of the
designated storm sewer and the discharges from municipal separate storm
sewers described under paragraph (b)(4) (i) or (ii) of this section. In
making this determination the Director may consider the following
factors:
(A) Physical interconnections between the municipal separate storm
sewers;
(B) The location of discharges from the designated municipal
separate storm sewer relative to discharges from municipal separate
storm sewers described in paragraph (b)(4)(i) of this section;
(C) The quantity and nature of pollutants discharged to waters of
the United States;
(D) The nature of the receiving waters; and
(E) Other relevant factors; or
(iv) The Director may, upon petition, designate as a large municipal
separate storm sewer system, municipal separate storm sewers located
within the boundaries of a region defined by a storm water management
regional authority based on a jurisdictional, watershed, or other
appropriate basis that includes one or more of the systems described in
paragraph (b)(4) (i), (ii), (iii) of this section.
(5) Major municipal separate storm sewer outfall (or ``major
outfall'') means a municipal separate storm sewer outfall that
discharges from a single pipe with an inside diameter of 36 inches or
more or its equivalent (discharge from a single conveyance other than
circular pipe which is associated with a drainage area of more than 50
acres); or for municipal separate storm sewers that receive storm water
from lands zoned for industrial activity (based on comprehensive zoning
plans or the equivalent), an outfall that discharges from a single pipe
with an inside diameter of 12 inches or more or from its equivalent
(discharge from other than a circular pipe associated with a drainage
area of 2 acres or more).
(6) Major outfall means a major municipal separate storm sewer
outfall.
(7) Medium municipal separate storm sewer system means all municipal
separate storm sewers that are either:
(i) Located in an incorporated place with a population of 100,000 or
more but less than 250,000, as determined by the 1990 Decennial Census
by the Bureau of the Census (appendix G of this part); or
(ii) Located in the counties listed in appendix I, except municipal
separate storm sewers that are located in the incorporated places,
townships or towns within such counties; or
(iii) Owned or operated by a municipality other than those described
in paragraph (b)(7) (i) or (ii) of this section and that are designated
by the Director as part of the large or medium municipal separate storm
sewer system due to the interrelationship between the discharges of the
designated storm sewer and the discharges from municipal separate storm
sewers described under paragraph (b)(7) (i) or (ii) of this section. In
making this determination the Director may consider the following
factors:
(A) Physical interconnections between the municipal separate storm
sewers;
(B) The location of discharges from the designated municipal
separate storm sewer relative to discharges from municipal separate
storm sewers
[[Page 223]]
described in paragraph (b)(7)(i) of this section;
(C) The quantity and nature of pollutants discharged to waters of
the United States;
(D) The nature of the receiving waters; or
(E) Other relevant factors; or
(iv) The Director may, upon petition, designate as a medium
municipal separate storm sewer system, municipal separate storm sewers
located within the boundaries of a region defined by a storm water
management regional authority based on a jurisdictional, watershed, or
other appropriate basis that includes one or more of the systems
described in paragraphs (b)(7) (i), (ii), (iii) of this section.
(8) Municipal separate storm sewer means a conveyance or system of
conveyances (including roads with drainage systems, municipal streets,
catch basins, curbs, gutters, ditches, man-made channels, or storm
drains):
(i) Owned or operated by a State, city, town, borough, county,
parish, district, association, or other public body (created by or
pursuant to State law) having jurisdiction over disposal of sewage,
industrial wastes, storm water, or other wastes, including special
districts under State law such as a sewer district, flood control
district or drainage district, or similar entity, or an Indian tribe or
an authorized Indian tribal organization, or a designated and approved
management agency under section 208 of the CWA that discharges to waters
of the United States;
(ii) Designed or used for collecting or conveying storm water;
(iii) Which is not a combined sewer; and
(iv) Which is not part of a Publicly Owned Treatment Works (POTW) as
defined at 40 CFR 122.2.
(9) Outfall means a point source as defined by 40 CFR 122.2 at the
point where a municipal separate storm sewer discharges to waters of the
United States and does not include open conveyances connecting two
municipal separate storm sewers, or pipes, tunnels or other conveyances
which connect segments of the same stream or other waters of the United
States and are used to convey waters of the United States.
(10) Overburden means any material of any nature, consolidated or
unconsolidated, that overlies a mineral deposit, excluding topsoil or
similar naturally-occurring surface materials that are not disturbed by
mining operations.
(11) Runoff coefficient means the fraction of total rainfall that
will appear at a conveyance as runoff.
(12) Significant materials includes, but is not limited to: raw
materials; fuels; materials such as solvents, detergents, and plastic
pellets; finished materials such as metallic products; raw materials
used in food processing or production; hazardous substances designated
under section 101(14) of CERCLA; any chemical the facility is required
to report pursuant to section 313 of title III of SARA; fertilizers;
pesticides; and waste products such as ashes, slag and sludge that have
the potential to be released with storm water discharges.
(13) Storm water means storm water runoff, snow melt runoff, and
surface runoff and drainage.
(14) Storm water discharge associated with industrial activity means
the discharge from any conveyance that is used for collecting and
conveying storm water and that is directly related to manufacturing,
processing or raw materials storage areas at an industrial plant. The
term does not include discharges from facilities or activities excluded
from the NPDES program under this part 122. For the categories of
industries identified in this section, the term includes, but is not
limited to, storm water discharges from industrial plant yards;
immediate access roads and rail lines used or traveled by carriers of
raw materials, manufactured products, waste material, or by-products
used or created by the facility; material handling sites; refuse sites;
sites used for the application or disposal of process waste waters (as
defined at part 401 of this chapter); sites used for the storage and
maintenance of material handling equipment; sites used for residual
treatment, storage, or disposal; shipping and receiving areas;
manufacturing buildings; storage areas
[[Page 224]]
(including tank farms) for raw materials, and intermediate and final
products; and areas where industrial activity has taken place in the
past and significant materials remain and are exposed to storm water.
For the purposes of this paragraph, material handling activities include
storage, loading and unloading, transportation, or conveyance of any raw
material, intermediate product, final product, by-product or waste
product. The term excludes areas located on plant lands separate from
the plant's industrial activities, such as office buildings and
accompanying parking lots as long as the drainage from the excluded
areas is not mixed with storm water drained from the above described
areas. Industrial facilities (including industrial facilities that are
federally, State, or municipally owned or operated that meet the
description of the facilities listed in paragraphs (b)(14)(i) through
(xi) of this section) include those facilities designated under the
provisions of paragraph (a)(1)(v) of this section. The following
categories of facilities are considered to be engaging in ``industrial
activity'' for purposes of paragraph (b)(14):
(i) Facilities subject to storm water effluent limitations
guidelines, new source performance standards, or toxic pollutant
effluent standards under 40 CFR subchapter N (except facilities with
toxic pollutant effluent standards which are exempted under category
(xi) in paragraph (b)(14) of this section);
(ii) Facilities classified within Standard Industrial Classification
24, Industry Group 241 that are rock crushing, gravel washing, log
sorting, or log storage facilities operated in connection with
silvicultural activities defined in 40 CFR 122.27(b)(2)-(3) and Industry
Groups 242 through 249; 26 (except 265 and 267), 28 (except 283), 29,
311, 32 (except 323), 33, 3441, 373; (not included are all other types
of silviculture facilities);
(iii) Facilities classified as Standard Industrial Classifications
10 through 14 (mineral industry) including active or inactive mining
operations (except for areas of coal mining operations no longer meeting
the definition of a reclamation area under 40 CFR 434.11(1) because the
performance bond issued to the facility by the appropriate SMCRA
authority has been released, or except for areas of non-coal mining
operations which have been released from applicable State or Federal
reclamation requirements after December 17, 1990) and oil and gas
exploration, production, processing, or treatment operations, or
transmission facilities that discharge storm water contaminated by
contact with or that has come into contact with, any overburden, raw
material, intermediate products, finished products, byproducts or waste
products located on the site of such operations; (inactive mining
operations are mining sites that are not being actively mined, but which
have an identifiable owner/operator; inactive mining sites do not
include sites where mining claims are being maintained prior to
disturbances associated with the extraction, beneficiation, or
processing of mined materials, nor sites where minimal activities are
undertaken for the sole purpose of maintaining a mining claim);
(iv) Hazardous waste treatment, storage, or disposal facilities,
including those that are operating under interim status or a permit
under subtitle C of RCRA;
(v) Landfills, land application sites, and open dumps that receive
or have received any industrial wastes (waste that is received from any
of the facilities described under this subsection) including those that
are subject to regulation under subtitle D of RCRA;
(vi) Facilities involved in the recycling of materials, including
metal scrapyards, battery reclaimers, salvage yards, and automobile
junkyards, including but limited to those classified as Standard
Industrial Classification 5015 and 5093;
(vii) Steam electric power generating facilities, including coal
handling sites;
(viii) Transportation facilities classified as Standard Industrial
Classifications 40, 41, 42 (except 4221-25), 43, 44, 45, and 5171 which
have vehicle maintenance shops, equipment cleaning operations, or
airport deicing operations. Only those portions of the facility that are
either involved in vehicle maintenance (including vehicle
rehabilitation, mechanical repairs, painting, fueling, and lubrication),
equipment cleaning
[[Page 225]]
operations, airport deicing operations, or which are otherwise
identified under paragraphs (b)(14) (i)-(vii) or (ix)-(xi) of this
section are associated with industrial activity;
(ix) Treatment works treating domestic sewage or any other sewage
sludge or wastewater treatment device or system, used in the storage
treatment, recycling, and reclamation of municipal or domestic sewage,
including land dedicated to the disposal of sewage sludge that are
located within the confines of the facility, with a design flow of 1.0
mgd or more, or required to have an approved pretreatment program under
40 CFR part 403. Not included are farm lands, domestic gardens or lands
used for sludge management where sludge is beneficially reused and which
are not physically located in the confines of the facility, or areas
that are in compliance with section 405 of the CWA;
(x) Construction activity including clearing, grading and
excavation, except operations that result in the disturbance of less
than five acres of total land area. Construction activity also includes
the disturbance of less than five acres of total land area that is a
part of a larger common plan of development or sale if the larger common
plan will ultimately disturb five acres or more;
(xi) Facilities under Standard Industrial Classifications 20, 21,
22, 23, 2434, 25, 265, 267, 27, 283, 285, 30, 31 (except 311), 323, 34
(except 3441), 35, 36, 37 (except 373), 38, 39, and 4221-25;
(15) Storm water discharge associated with small construction
activity means the discharge of storm water from:
(i) Construction activities including clearing, grading, and
excavating that result in land disturbance of equal to or greater than
one acre and less than five acres. Small construction activity also
includes the disturbance of less than one acre of total land area that
is part of a larger common plan of development or sale if the larger
common plan will ultimately disturb equal to or greater than one and
less than five acres. Small construction activity does not include
routine maintenance that is performed to maintain the original line and
grade, hydraulic capacity, or original purpose of the facility. The
Director may waive the otherwise applicable requirements in a general
permit for a storm water discharge from construction activities that
disturb less than five acres where:
(A) The value of the rainfall erosivity factor (``R'' in the Revised
Universal Soil Loss Equation) is less than five during the period of
construction activity. The rainfall erosivity factor is determined in
accordance with Chapter 2 of Agriculture Handbook Number 703, Predicting
Soil Erosion by Water: A Guide to Conservation Planning with the Revised
Universal Soil Loss Equation (RUSLE), pages 21-64, dated January 1997.
The Director of the Federal Register approves this incorporation by
reference in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies
may be obtained at EPA's Water Docket, 1200 Pennsylvania Avenue NW,
Washington, DC 20460. For information on the availability of this
material at National Archives and Records Administration, call 202-741-
6030, or go to: http://www.archives.gov/federal_register/
code_of_federal_regulations/ibr_locations.html. An operator must certify
to the Director that the construction activity will take place during a
period when the value of the rainfall erosivity factor is less than
five; or
(B) Storm water controls are not needed based on a ``total maximum
daily load'' (TMDL) approved or established by EPA that addresses the
pollutant(s) of concern or, for non-impaired waters that do not require
TMDLs, an equivalent analysis that determines allocations for small
construction sites for the pollutant(s) of concern or that determines
that such allocations are not needed to protect water quality based on
consideration of existing in-stream concentrations, expected growth in
pollutant contributions from all sources, and a margin of safety. For
the purpose of this paragraph, the pollutant(s) of concern include
sediment or a parameter that addresses sediment (such as total suspended
solids, turbidity or siltation) and any other pollutant that has been
identified as a cause of impairment of any water body that will receive
a discharge from the construction activity. The operator must certify to
the Director that the construction activity will
[[Page 226]]
take place, and storm water discharges will occur, within the drainage
area addressed by the TMDL or equivalent analysis.
(C) As of December 21, 2020 all certifications submitted in
compliance with paragraphs (b)(15)(i)(A) and (B) of this section must be
submitted electronically by the owner or operator to the Director or
initial recipient, as defined in 40 CFR 127.2(b), in compliance with
this section and 40 CFR part 3 (including, in all cases, subpart D to
part 3), Sec. 122.22, and 40 CFR part 127. Part 127 is not intended to
undo existing requirements for electronic reporting. Prior to this date,
and independent of part 127, owners or operators may be required to
report electronically if specified by a particular permit or if required
to do so by state law.
(ii) Any other construction activity designated by the Director, or
in States with approved NPDES programs either the Director or the EPA
Regional Administrator, based on the potential for contribution to a
violation of a water quality standard or for significant contribution of
pollutants to waters of the United States.
Exhibit 1 to Sec. 122.26(b)(15)--Summary of Coverage of ``Storm Water
Discharges Associated with Small Construction Activity'' Under the NPDES
Storm Water Program
------------------------------------------------------------------------
------------------------------------------------------------------------
Automatic Designation: Construction
Required Nationwide Coverage. activities that result in a land
disturbance of equal to or greater than
one acre and less than five acres.
Construction
activities disturbing less than one acre
if part of a larger common plan of
development or sale with a planned
disturbance of equal to or greater than
one acre and less than five acres. (see
Sec. 122.26(b)(15)(i).)
Potential Designation: Construction
Optional Evaluation and activities that result in a land
Designation by the NPDES disturbance of less than one acre based
Permitting Authority or EPA on the potential for contribution to a
Regional Administrator. violation of a water quality standard or
for significant contribution of
pollutants. (see Sec.
122.26(b)(15)(ii).)
Potential Waiver: Waiver from Any automatically designated construction
Requirements as Determined activity where the operator certifies:
by the NPDES Permitting (1) A rainfall erosivity factor of less
Authority.. than five, or (2) That the activity will
occur within an area where controls are
not needed based on a TMDL or, for non-
impaired waters that do not require a
TMDL, an equivalent analysis for the
pollutant(s) of concern. (see Sec.
122.26(b)(15)(i).)
------------------------------------------------------------------------
(16) Small municipal separate storm sewer system means all separate
storm sewers that are:
(i) Owned or operated by the United States, a State, city, town,
borough, county, parish, district, association, or other public body
(created by or pursuant to State law) having jurisdiction over disposal
of sewage, industrial wastes, storm water, or other wastes, including
special districts under State law such as a sewer district, flood
control district or drainage district, or similar entity, or an Indian
tribe or an authorized Indian tribal organization, or a designated and
approved management agency under section 208 of the CWA that discharges
to waters of the United States.
(ii) Not defined as ``large'' or ``medium'' municipal separate storm
sewer systems pursuant to paragraphs (b)(4) and (b)(7) of this section,
or designated under paragraph (a)(1)(v) of this section.
(iii) This term includes systems similar to separate storm sewer
systems in municipalities, such as systems at military bases, large
hospital or prison complexes, and highways and other thoroughfares. The
term does not include separate storm sewers in very discrete areas, such
as individual buildings.
(17) Small MS4 means a small municipal separate storm sewer system.
(18) Municipal separate storm sewer system means all separate storm
sewers that are defined as ``large'' or ``medium'' or ``small''
municipal separate storm sewer systems pursuant to paragraphs (b)(4),
(b)(7), and (b)(16) of this section, or designated under paragraph
(a)(1)(v) of this section.
(19) MS4 means a municipal separate storm sewer system.
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(20) Uncontrolled sanitary landfill means a landill or open dump,
whether in operation or closed, that does not meet the requirements for
runon or runoff controls established pursuant to subtitle D of the Solid
Waste Disposal Act.
(c) Application requirements for storm water discharges associated
with industrial activity and storm water discharges associated with
small construction activity--(1) Individual application. Dischargers of
storm water associated with industrial activity and with small
construction activity are required to apply for an individual permit or
seek coverage under a promulgated storm water general permit. Facilities
that are required to obtain an individual permit or any dischage of
storm water which the Director is evaluating for designation (see Sec.
124.52(c) of this chapter) under paragraph (a)(1)(v) of this section and
is not a municipal storm sewer, shall submit an NPDES application in
accordance with the requirements of Sec. 122.21 as modified and
supplemented by the provisions of this paragraph.
(i) Except as provided in Sec. 122.26(c)(1) (ii)-(iv), the operator
of a storm water discharge associated with industrial activity subject
to this section shall provide:
(A) A site map showing topography (or indicating the outline of
drainage areas served by the outfall(s) covered in the application if a
topographic map is unavailable) of the facility including: each of its
drainage and discharge structures; the drainage area of each storm water
outfall; paved areas and buildings within the drainage area of each
storm water outfall, each past or present area used for outdoor storage
or disposal of significant materials, each existing structural control
measure to reduce pollutants in storm water runoff, materials loading
and access areas, areas where pesticides, herbicides, soil conditioners
and fertilizers are applied, each of its hazardous waste treatment,
storage or disposal facilities (including each area not required to have
a RCRA permit which is used for accumulating hazardous waste under 40
CFR 262.34); each well where fluids from the facility are injected
underground; springs, and other surface water bodies which receive storm
water discharges from the facility;
(B) An estimate of the area of impervious surfaces (including paved
areas and building roofs) and the total area drained by each outfall
(within a mile radius of the facility) and a narrative description of
the following: Significant materials that in the three years prior to
the submittal of this application have been treated, stored or disposed
in a manner to allow exposure to storm water; method of treatment,
storage or disposal of such materials; materials management practices
employed, in the three years prior to the submittal of this application,
to minimize contact by these materials with storm water runoff;
materials loading and access areas; the location, manner and frequency
in which pesticides, herbicides, soil conditioners and fertilizers are
applied; the location and a description of existing structural and non-
structural control measures to reduce pollutants in storm water runoff;
and a description of the treatment the storm water receives, including
the ultimate disposal of any solid or fluid wastes other than by
discharge;
(C) A certification that all outfalls that should contain storm
water discharges associated with industrial activity have been tested or
evaluated for the presence of non-storm water discharges which are not
covered by a NPDES permit; tests for such non-storm water discharges may
include smoke tests, fluorometric dye tests, analysis of accurate
schematics, as well as other appropriate tests. The certification shall
include a description of the method used, the date of any testing, and
the on-site drainage points that were directly observed during a test;
(D) Existing information regarding significant leaks or spills of
toxic or hazardous pollutants at the facility that have taken place
within the three years prior to the submittal of this application;
(E) Quantitative data based on samples collected during storm events
and collected in accordance with Sec. 122.21 of this part from all
outfalls containing a storm water discharge associated with industrial
activity for the following parameters:
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(1) Any pollutant limited in an effluent guideline to which the
facility is subject;
(2) Any pollutant listed in the facility's NPDES permit for its
process wastewater (if the facility is operating under an existing NPDES
permit);
(3) Oil and grease, pH, BOD5, COD, TSS, total phosphorus, total
Kjeldahl nitrogen, and nitrate plus nitrite nitrogen;
(4) Any information on the discharge required under Sec.
122.21(g)(7)(vi) and (vii);
(5) Flow measurements or estimates of the flow rate, and the total
amount of discharge for the storm event(s) sampled, and the method of
flow measurement or estimation; and
(6) The date and duration (in hours) of the storm event(s) sampled,
rainfall measurements or estimates of the storm event (in inches) which
generated the sampled runoff and the duration between the storm event
sampled and the end of the previous measurable (greater than 0.1 inch
rainfall) storm event (in hours);
(F) Operators of a discharge which is composed entirely of storm
water are exempt from the requirements of Sec. 122.21 (g)(2), (g)(3),
(g)(4), (g)(5), (g)(7)(iii), (g)(7)(iv), (g)(7)(v), and (g)(7)(viii);
and
(G) Operators of new sources or new discharges (as defined in Sec.
122.2 of this part) which are composed in part or entirely of storm
water must include estimates for the pollutants or parameters listed in
paragraph (c)(1)(i)(E) of this section instead of actual sampling data,
along with the source of each estimate. Operators of new sources or new
discharges composed in part or entirely of storm water must provide
quantitative data for the parameters listed in paragraph (c)(1)(i)(E) of
this section within two years after commencement of discharge, unless
such data has already been reported under the monitoring requirements of
the NPDES permit for the discharge. Operators of a new source or new
discharge which is composed entirely of storm water are exempt from the
requirements of Sec. 122.21 (k)(3)(ii), (k)(3)(iii), and (k)(5).
(ii) An operator of an existing or new storm water discharge that is
associated with industrial activity solely under paragraph (b)(14)(x) of
this section or is associated with small construction activity solely
under paragraph (b)(15) of this section, is exempt from the requirements
of Sec. 122.21(g) and paragraph (c)(1)(i) of this section. Such
operator shall provide a narrative description of:
(A) The location (including a map) and the nature of the
construction activity;
(B) The total area of the site and the area of the site that is
expected to undergo excavation during the life of the permit;
(C) Proposed measures, including best management practices, to
control pollutants in storm water discharges during construction,
including a brief description of applicable State and local erosion and
sediment control requirements;
(D) Proposed measures to control pollutants in storm water
discharges that will occur after construction operations have been
completed, including a brief description of applicable State or local
erosion and sediment control requirements;
(E) An estimate of the runoff coefficient of the site and the
increase in impervious area after the construction addressed in the
permit application is completed, the nature of fill material and
existing data describing the soil or the quality of the discharge; and
(F) The name of the receiving water.
(iii) The operator of an existing or new discharge composed entirely
of storm water from an oil or gas exploration, production, processing,
or treatment operation, or transmission facility is not required to
submit a permit application in accordance with paragraph (c)(1)(i) of
this section, unless the facility:
(A) Has had a discharge of storm water resulting in the discharge of
a reportable quantity for which notification is or was required pursuant
to 40 CFR 117.21 or 40 CFR 302.6 at anytime since November 16, 1987; or
(B) Has had a discharge of storm water resulting in the discharge of
a reportable quantity for which notification is or was required pursuant
to 40 CFR 110.6 at any time since November 16, 1987; or
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(C) Contributes to a violation of a water quality standard.
(iv) The operator of an existing or new discharge composed entirely
of storm water from a mining operation is not required to submit a
permit application unless the discharge has come into contact with, any
overburden, raw material, intermediate products, finished product,
byproduct or waste products located on the site of such operations.
(v) Applicants shall provide such other information the Director may
reasonably require under Sec. 122.21(g)(13) of this part to determine
whether to issue a permit and may require any facility subject to
paragraph (c)(1)(ii) of this section to comply with paragraph (c)(1)(i)
of this section.
(2) [Reserved]
(d) Application requirements for large and medium municipal separate
storm sewer discharges. The operator of a discharge from a large or
medium municipal separate storm sewer or a municipal separate storm
sewer that is designated by the Director under paragraph (a)(1)(v) of
this section, may submit a jurisdiction-wide or system-wide permit
application. Where more than one public entity owns or operates a
municipal separate storm sewer within a geographic area (including
adjacent or interconnected municipal separate storm sewer systems), such
operators may be a coapplicant to the same application. Permit
applications for discharges from large and medium municipal storm sewers
or municipal storm sewers designated under paragraph (a)(1)(v) of this
section shall include;
(1) Part 1. Part 1 of the application shall consist of;
(i) General information. The applicants' name, address, telephone
number of contact person, ownership status and status as a State or
local government entity.
(ii) Legal authority. A description of existing legal authority to
control discharges to the municipal separate storm sewer system. When
existing legal authority is not sufficient to meet the criteria provided
in paragraph (d)(2)(i) of this section, the description shall list
additional authorities as will be necessary to meet the criteria and
shall include a schedule and commitment to seek such additional
authority that will be needed to meet the criteria.
(iii) Source identification. (A) A description of the historic use
of ordinances, guidance or other controls which limited the discharge of
non-storm water discharges to any Publicly Owned Treatment Works serving
the same area as the municipal separate storm sewer system.
(B) A USGS 7.5 minute topographic map (or equivalent topographic map
with a scale between 1:10,000 and 1:24,000 if cost effective) extending
one mile beyond the service boundaries of the municipal storm sewer
system covered by the permit application. The following information
shall be provided:
(1) The location of known municipal storm sewer system outfalls
discharging to waters of the United States;
(2) A description of the land use activities (e.g. divisions
indicating undeveloped, residential, commercial, agricultural and
industrial uses) accompanied with estimates of population densities and
projected growth for a ten year period within the drainage area served
by the separate storm sewer. For each land use type, an estimate of an
average runoff coefficient shall be provided;
(3) The location and a description of the activities of the facility
of each currently operating or closed municipal landfill or other
treatment, storage or disposal facility for municipal waste;
(4) The location and the permit number of any known discharge to the
municipal storm sewer that has been issued a NPDES permit;
(5) The location of major structural controls for storm water
discharge (retention basins, detention basins, major infiltration
devices, etc.); and
(6) The identification of publicly owned parks, recreational areas,
and other open lands.
(iv) Discharge characterization. (A) Monthly mean rain and snow fall
estimates (or summary of weather bureau data) and the monthly average
number of storm events.
(B) Existing quantitative data describing the volume and quality of
discharges from the municipal storm
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sewer, including a description of the outfalls sampled, sampling
procedures and analytical methods used.
(C) A list of water bodies that receive discharges from the
municipal separate storm sewer system, including downstream segments,
lakes and estuaries, where pollutants from the system discharges may
accumulate and cause water degradation and a brief description of known
water quality impacts. At a minimum, the description of impacts shall
include a description of whether the water bodies receiving such
discharges have been:
(1) Assessed and reported in section 305(b) reports submitted by the
State, the basis for the assessment (evaluated or monitored), a summary
of designated use support and attainment of Clean Water Act (CWA) goals
(fishable and swimmable waters), and causes of nonsupport of designated
uses;
(2) Listed under section 304(l)(1)(A)(i), section 304(l)(1)(A)(ii),
or section 304(l)(1)(B) of the CWA that is not expected to meet water
quality standards or water quality goals;
(3) Listed in State Nonpoint Source Assessments required by section
319(a) of the CWA that, without additional action to control nonpoint
sources of pollution, cannot reasonably be expected to attain or
maintain water quality standards due to storm sewers, construction,
highway maintenance and runoff from municipal landfills and municipal
sludge adding significant pollution (or contributing to a violation of
water quality standards);
(4) Identified and classified according to eutrophic condition of
publicly owned lakes listed in State reports required under section
314(a) of the CWA (include the following: A description of those
publicly owned lakes for which uses are known to be impaired; a
description of procedures, processes and methods to control the
discharge of pollutants from municipal separate storm sewers into such
lakes; and a description of methods and procedures to restore the
quality of such lakes);
(5) Areas of concern of the Great Lakes identified by the
International Joint Commission;
(6) Designated estuaries under the National Estuary Program under
section 320 of the CWA;
(7) Recognized by the applicant as highly valued or sensitive
waters;
(8) Defined by the State or U.S. Fish and Wildlife Services's
National Wetlands Inventory as wetlands; and
(9) Found to have pollutants in bottom sediments, fish tissue or
biosurvey data.
(D) Field screening. Results of a field screening analysis for
illicit connections and illegal dumping for either selected field
screening points or major outfalls covered in the permit application. At
a minimum, a screening analysis shall include a narrative description,
for either each field screening point or major outfall, of visual
observations made during dry weather periods. If any flow is observed,
two grab samples shall be collected during a 24 hour period with a
minimum period of four hours between samples. For all such samples, a
narrative description of the color, odor, turbidity, the presence of an
oil sheen or surface scum as well as any other relevant observations
regarding the potential presence of non-storm water discharges or
illegal dumping shall be provided. In addition, a narrative description
of the results of a field analysis using suitable methods to estimate
pH, total chlorine, total copper, total phenol, and detergents (or
surfactants) shall be provided along with a description of the flow
rate. Where the field analysis does not involve analytical methods
approved under 40 CFR part 136, the applicant shall provide a
description of the method used including the name of the manufacturer of
the test method along with the range and accuracy of the test. Field
screening points shall be either major outfalls or other outfall points
(or any other point of access such as manholes) randomly located
throughout the storm sewer system by placing a grid over a drainage
system 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
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storm sewer system, creating a series of cells;
(2) All cells that contain a segment of the storm sewer system shall
be identified; one field screening point shall be selected in each cell;
major outfalls may be used as field screening points;
(3) Field screening points should be located downstream of any
sources of suspected illegal or illicit activity;
(4) Field screening points shall be located to the degree
practicable at the farthest manhole or other accessible location
downstream in the system, within each cell; however, safety of personnel
and accessibility of the location should be considered in making this
determination;
(5) Hydrological conditions; total drainage area of the site;
population density of the site; traffic density; age of the structures
or buildings in the area; history of the area; and land use types;
(6) For medium municipal separate storm sewer systems, no more than
250 cells need to have identified field screening points; in large
municipal separate storm sewer systems, no more than 500 cells need to
have identified field screening points; cells established by the grid
that contain no storm sewer segments will be eliminated from
consideration; if fewer than 250 cells in medium municipal sewers are
created, and fewer than 500 in large systems are created by the overlay
on the municipal sewer map, then all those cells which contain a segment
of the sewer system shall be subject to field screening (unless access
to the separate storm sewer system is impossible); and
(7) Large or medium municipal separate storm sewer systems which are
unable to utilize the procedures described in paragraphs (d)(1)(iv)(D)
(1) through (6) of this section, because a sufficiently detailed map of
the separate storm sewer systems is unavailable, shall field screen no
more than 500 or 250 major outfalls respectively (or all major outfalls
in the system, if less); in such circumstances, the applicant shall
establish a grid system consisting of north-south and east-west lines
spaced \1/4\ mile apart as an overlay to the boundaries of the municipal
storm sewer system, thereby creating a series of cells; the applicant
will then select major outfalls in as many cells as possible until at
least 500 major outfalls (large municipalities) or 250 major outfalls
(medium municipalities) are selected; a field screening analysis shall
be undertaken at these major outfalls.
(E) Characterization plan. Information and a proposed program to
meet the requirements of paragraph (d)(2)(iii) of this section. Such
description shall include: the location of outfalls or field screening
points appropriate for representative data collection under paragraph
(d)(2)(iii)(A) of this section, a description of why the outfall or
field screening point is representative, the seasons during which
sampling is intended, a description of the sampling equipment. The
proposed location of outfalls or field screening points for such
sampling should reflect water quality concerns (see paragraph
(d)(1)(iv)(C) of this section) to the extent practicable.
(v) Management programs. (A) A description of the existing
management programs to control pollutants from the municipal separate
storm sewer system. The description shall provide information on
existing structural and source controls, including operation and
maintenance measures for structural controls, that are currently being
implemented. Such controls may include, but are not limited to:
Procedures to control pollution resulting from construction activities;
floodplain management controls; wetland protection measures; best
management practices for new subdivisions; and emergency spill response
programs. The description may address controls established under State
law as well as local requirements.
(B) A description of the existing program to identify illicit
connections to the municipal storm sewer system. The description should
include inspection procedures and methods for detecting and preventing
illicit discharges, and describe areas where this program has been
implemented.
(vi) Fiscal resources. (A) A description of the financial resources
currently available to the municipality to complete part 2 of the permit
application. A description of the municipality's
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budget for existing storm water programs, including an overview of the
municipality's financial resources and budget, including overall
indebtedness and assets, and sources of funds for storm water programs.
(2) Part 2. Part 2 of the application shall consist of:
(i) Adequate legal authority. A demonstration that the applicant can
operate pursuant to legal authority established by statute, ordinance or
series of contracts which authorizes or enables the applicant at a
minimum to:
(A) Control through ordinance, permit, contract, order or similar
means, the contribution of pollutants to the municipal storm sewer by
storm water discharges associated with industrial activity and the
quality of storm water discharged from sites of industrial activity;
(B) Prohibit through ordinance, order or similar means, illicit
discharges to the municipal separate storm sewer;
(C) Control through ordinance, order or similar means the discharge
to a municipal separate storm sewer of spills, dumping or disposal of
materials other than storm water;
(D) Control through interagency agreements among coapplicants the
contribution of pollutants from one portion of the municipal system to
another portion of the municipal system;
(E) Require compliance with conditions in ordinances, permits,
contracts or orders; and
(F) Carry out all inspection, surveillance and monitoring procedures
necessary to determine compliance and noncompliance with permit
conditions including the prohibition on illicit discharges to the
municipal separate storm sewer.
(ii) Source identification. The location of any major outfall that
discharges to waters of the United States that was not reported under
paragraph (d)(1)(iii)(B)(1) of this section. Provide an inventory,
organized by watershed of the name and address, and a description (such
as SIC codes) which best reflects the principal products or services
provided by each facility which may discharge, to the municipal separate
storm sewer, storm water associated with industrial activity;
(iii) Characterization data. When ``quantitative data'' for a
pollutant are required under paragraph (d)(2)(iii)(A)(3) of this
section, the applicant must collect a sample of effluent in accordance
with 40 CFR 122.21(g)(7) and analyze it for the pollutant in accordance
with analytical methods approved under part 136 of this chapter. When no
analytical method is approved the applicant may use any suitable method
but must provide a description of the method. The applicant must provide
information characterizing the quality and quantity of discharges
covered in the permit application, including:
(A) Quantitative data from representative outfalls designated by the
Director (based on information received in part 1 of the application,
the Director shall designate between five and ten outfalls or field
screening points as representative of the commercial, residential and
industrial land use activities of the drainage area contributing to the
system or, where there are less than five outfalls covered in the
application, the Director shall designate all outfalls) developed as
follows:
(1) For each outfall or field screening point designated under this
subparagraph, samples shall be collected of storm water discharges from
three storm events occurring at least one month apart in accordance with
the requirements at Sec. 122.21(g)(7) (the Director may allow
exemptions to sampling three storm events when climatic conditions
create good cause for such exemptions);
(2) A narrative description shall be provided of the date and
duration of the storm event(s) sampled, rainfall estimates of the storm
event which generated the sampled discharge and the duration between the
storm event sampled and the end of the previous measurable (greater than
0.1 inch rainfall) storm event;
(3) For samples collected and described under paragraphs (d)(2)(iii)
(A)(1) and (A)(2) of this section, quantitative data shall be provided
for: the organic pollutants listed in Table II; the pollutants listed in
Table III (toxic metals, cyanide, and total phenols) of appendix D of 40
CFR part 122, and for the following pollutants:
[[Page 233]]
Total suspended solids (TSS)
Total dissolved solids (TDS)
COD
BOD5
Oil and grease
Fecal coliform
Fecal streptococcus
pH
Total Kjeldahl nitrogen
Nitrate plus nitrite
Dissolved phosphorus
Total ammonia plus organic nitrogen
Total phosphorus
(4) Additional limited quantitative data required by the Director
for determining permit conditions (the Director may require that
quantitative data shall be provided for additional parameters, and may
establish sampling conditions such as the location, season of sample
collection, form of precipitation (snow melt, rainfall) and other
parameters necessary to insure representativeness);
(B) Estimates of the annual pollutant load of the cumulative
discharges to waters of the United States from all identified municipal
outfalls and the event mean concentration of the cumulative discharges
to waters of the United States from all identified municipal outfalls
during a storm event (as described under Sec. 122.21(c)(7)) for
BOD5, COD, TSS, dissolved solids, total nitrogen, total
ammonia plus organic nitrogen, total phosphorus, dissolved phosphorus,
cadmium, copper, lead, and zinc. Estimates shall be accompanied by a
description of the procedures for estimating constituent loads and
concentrations, including any modelling, data analysis, and calculation
methods;
(C) A proposed schedule to provide estimates for each major outfall
identified in either paragraph (d)(2)(ii) or (d)(1)(iii)(B)(1) of this
section of the seasonal pollutant load and of the event mean
concentration of a representative storm for any constituent detected in
any sample required under paragraph (d)(2)(iii)(A) of this section; and
(D) A proposed monitoring program for representative data collection
for the term of the permit that describes the location of outfalls or
field screening points to be sampled (or the location of instream
stations), why the location is representative, the frequency of
sampling, parameters to be sampled, and a description of sampling
equipment.
(iv) Proposed management program. A proposed management program
covers the duration of the permit. It shall include a comprehensive
planning process which involves public participation and where necessary
intergovernmental coordination, to reduce the discharge of pollutants to
the maximum extent practicable using management practices, control
techniques and system, design and engineering methods, and such other
provisions which are appropriate. The program shall also include a
description of staff and equipment available to implement the program.
Separate proposed programs may be submitted by each coapplicant.
Proposed programs may impose controls on a systemwide basis, a watershed
basis, a jurisdiction basis, or on individual outfalls. Proposed
programs will be considered by the Director when developing permit
conditions to reduce pollutants in discharges to the maximum extent
practicable. Proposed management programs shall describe priorities for
implementing controls. Such programs shall be based on:
(A) A description of structural and source control measures to
reduce pollutants from runoff from commercial and residential areas that
are discharged from the municipal storm sewer system that are to be
implemented during the life of the permit, accompanied with an estimate
of the expected reduction of pollutant loads and a proposed schedule for
implementing such controls. At a minimum, the description shall include:
(1) A description of maintenance activities and a maintenance
schedule for structural controls to reduce pollutants (including
floatables) in discharges from municipal separate storm sewers;
(2) A description of planning procedures including a comprehensive
master plan to develop, implement and enforce controls to reduce the
discharge of pollutants from municipal separate storm sewers which
receive discharges from areas of new development and significant
redevelopment. Such plan
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shall address controls to reduce pollutants in discharges from municipal
separate storm sewers after construction is completed. (Controls to
reduce pollutants in discharges from municipal separate storm sewers
containing construction site runoff are addressed in paragraph
(d)(2)(iv)(D) of this section;
(3) A description of practices for operating and maintaining public
streets, roads and highways and procedures for reducing the impact on
receiving waters of discharges from municipal storm sewer systems,
including pollutants discharged as a result of deicing activities;
(4) A description of procedures to assure that flood management
projects assess the impacts on the water quality of receiving water
bodies and that existing structural flood control devices have been
evaluated to determine if retrofitting the device to provide additional
pollutant removal from storm water is feasible;
(5) A description of a program to monitor pollutants in runoff from
operating or closed municipal landfills or other treatment, storage or
disposal facilities for municipal waste, which shall identify priorities
and procedures for inspections and establishing and implementing control
measures for such discharges (this program can be coordinated with the
program developed under paragraph (d)(2)(iv)(C) of this section); and
(6) A description of a program to reduce to the maximum extent
practicable, pollutants in discharges from municipal separate storm
sewers associated with the application of pesticides, herbicides and
fertilizer which will include, as appropriate, controls such as
educational activities, permits, certifications and other measures for
commercial applicators and distributors, and controls for application in
public right-of-ways and at municipal facilities.
(B) A description of a program, including a schedule, to detect and
remove (or require the discharger to the municipal separate storm sewer
to obtain a separate NPDES permit for) illicit discharges and improper
disposal into the storm sewer. The proposed program shall include:
(1) A description of a program, including inspections, to implement
and enforce an ordinance, orders or similar means to prevent illicit
discharges to the municipal separate storm sewer system; this program
description shall address all types of illicit discharges, however the
following category of non-storm water discharges or flows shall be
addressed where such discharges are identified by the municipality as
sources of pollutants to waters of the United States: water line
flushing, landscape irrigation, diverted stream flows, rising ground
waters, uncontaminated ground water infiltration (as defined at 40 CFR
35.2005(20)) to separate storm sewers, uncontaminated pumped ground
water, discharges from potable water sources, foundation drains, air
conditioning condensation, irrigation water, springs, water from crawl
space pumps, footing drains, lawn watering, individual residential car
washing, flows from riparian habitats and wetlands, dechlorinated
swimming pool discharges, and street wash water (program descriptions
shall address discharges or flows from fire fighting only where such
discharges or flows are identified as significant sources of pollutants
to waters of the United States);
(2) A description of procedures to conduct on-going field screening
activities during the life of the permit, including areas or locations
that will be evaluated by such field screens;
(3) A description of procedures to be followed to investigate
portions of the separate storm sewer system that, based on the results
of the field screen, or other appropriate information, indicate a
reasonable potential of containing illicit discharges or other sources
of non-storm water (such procedures may include: sampling procedures for
constituents such as fecal coliform, fecal streptococcus, surfactants
(MBAS), residual chlorine, fluorides and potassium; testing with
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
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that may discharge into the municipal separate storm sewer;
(5) A description of a program to promote, publicize, and facilitate
public reporting of the presence of illicit discharges or water quality
impacts associated with discharges from municipal separate storm sewers;
(6) A description of educational activities, public information
activities, and other appropriate activities to facilitate the proper
management and disposal of used oil and toxic materials; and
(7) A description of controls to limit infiltration of seepage from
municipal sanitary sewers to municipal separate storm sewer systems
where necessary;
(C) A description of a program to monitor and control pollutants in
storm water discharges to municipal systems from municipal landfills,
hazardous waste treatment, disposal and recovery facilities, industrial
facilities that are subject to section 313 of title III of the Superfund
Amendments and Reauthorization Act of 1986 (SARA), and industrial
facilities that the municipal permit applicant determines are
contributing a substantial pollutant loading to the municipal storm
sewer system. The program shall:
(1) Identify priorities and procedures for inspections and
establishing and implementing control measures for such discharges;
(2) Describe a monitoring program for storm water discharges
associated with the industrial facilities identified in paragraph
(d)(2)(iv)(C) of this section, to be implemented during the term of the
permit, including the submission of quantitative data on the following
constituents: any pollutants limited in effluent guidelines
subcategories, where applicable; any pollutant listed in an existing
NPDES permit for a facility; oil and grease, COD, pH, BOD5,
TSS, total phosphorus, total Kjeldahl nitrogen, nitrate plus nitrite
nitrogen, and any information on discharges required under Sec.
122.21(g)(7) (vi) and (vii).
(D) A description of a program to implement and maintain structural
and non-structural best management practices to reduce pollutants in
storm water runoff from construction sites to the municipal storm sewer
system, which shall include:
(1) A description of procedures for site planning which incorporate
consideration of potential water quality impacts;
(2) A description of requirements for nonstructural and structural
best management practices;
(3) A description of procedures for identifying priorities for
inspecting sites and enforcing control measures which consider the
nature of the construction activity, topography, and the characteristics
of soils and receiving water quality; and
(4) A description of appropriate educational and training measures
for construction site operators.
(v) Assessment of controls. Estimated reductions in loadings of
pollutants from discharges of municipal storm sewer constituents from
municipal storm sewer systems expected as the result of the municipal
storm water quality management program. The assessment shall also
identify known impacts of storm water controls on ground water.
(vi) Fiscal analysis. For each fiscal year to be covered by the
permit, a fiscal analysis of the necessary capital and operation and
maintenance expenditures necessary to accomplish the activities of the
programs under paragraphs (d)(2) (iii) and (iv) of this section. Such
analysis shall include a description of the source of funds that are
proposed to meet the necessary expenditures, including legal
restrictions on the use of such funds.
(vii) Where more than one legal entity submits an application, the
application shall contain a description of the roles and
responsibilities of each legal entity and procedures to ensure effective
coordination.
(viii) Where requirements under paragraph (d)(1)(iv)(E), (d)(2)(ii),
(d)(2)(iii)(B) and (d)(2)(iv) of this section are not practicable or are
not applicable, the Director may exclude any operator of a discharge
from a municipal separate storm sewer which is designated under
paragraph (a)(1)(v), (b)(4)(ii) or (b)(7)(ii) of this section from such
requirements. The Director shall not exclude the operator of a discharge
from a municipal separate
[[Page 236]]
storm sewer identified in appendix F, G, H or I of part 122, from any of
the permit application requirements under this paragraph except where
authorized under this section.
(e) Application deadlines. Any operator of a point source required
to obtain a permit under this section that does not have an effective
NPDES permit authorizing discharges from its storm water outfalls shall
submit an application in accordance with the following deadlines:
(1) Storm water discharges associated with industrial activity. (i)
Except as provided in paragraph (e)(1)(ii) of this section, for any
storm water discharge associated with industrial activity identified in
paragraphs (b)(14)(i) through (xi) of this section, that is not part of
a group application as described in paragraph (c)(2) of this section or
that is not authorized by a storm water general permit, a permit
application made pursuant to paragraph (c) of this section must be
submitted to the Director by October 1, 1992;
(ii) For any storm water discharge associated with industrial
activity from a facility that is owned or operated by a municipality
with a population of less than 100,000 that is not authorized by a
general or individual permit, other than an airport, powerplant, or
uncontrolled sanitary landfill, the permit application must be submitted
to the Director by March 10, 2003.
(2) For any group application submitted in accordance with paragraph
(c)(2) of this section:
(i) Part 1. (A) Except as provided in paragraph (e)(2)(i)(B) of this
section, part 1 of the application shall be submitted to the Director,
Office of Wastewater Enforcement and Compliance by September 30, 1991;
(B) Any municipality with a population of less than 250,000 shall
not be required to submit a part 1 application before May 18, 1992.
(C) For any storm water discharge associated with industrial
activity from a facility that is owned or operated by a municipality
with a population of less than 100,000 other than an airport,
powerplant, or uncontrolled sanitary landfill, permit applications
requirements are reserved.
(ii) Based on information in the part 1 application, the Director
will approve or deny the members in the group application within 60 days
after receiving part 1 of the group application.
(iii) Part 2. (A) Except as provided in paragraph (e)(2)(iii)(B) of
this section, part 2 of the application shall be submitted to the
Director, Office of Wastewater Enforcement and Compliance by October 1,
1992;
(B) Any municipality with a population of less than 250,000 shall
not be required to submit a part 1 application before May 17, 1993.
(C) For any storm water discharge associated with industrial
activity from a facility that is owned or operated by a municipality
with a population of less than 100,000 other than an airport,
powerplant, or uncontrolled sanitary landfill, permit applications
requirements are reserved.
(iv) Rejected facilities. (A) Except as provided in paragraph
(e)(2)(iv)(B) of this section, facilities that are rejected as members
of the group shall submit an individual application (or obtain coverage
under an applicable general permit) no later than 12 months after the
date of receipt of the notice of rejection or October 1, 1992, whichever
comes first.
(B) Facilities that are owned or operated by a municipality and that
are rejected as members of part 1 group application shall submit an
individual application no later than 180 days after the date of receipt
of the notice of rejection or October 1, 1992, whichever is later.
(v) A facility listed under paragraph (b)(14) (i)-(xi) of this
section may add on to a group application submitted in accordance with
paragraph (e)(2)(i) of this section at the discretion of the Office of
Water Enforcement and Permits, and only upon a showing of good cause by
the facility and the group applicant; the request for the addition of
the facility shall be made no later than February 18, 1992; the addition
of the facility shall not cause the percentage of the facilities that
are required to submit quantitative data to be less than 10%, unless
there are over 100 facilities in the group that are submitting
quantitative data; approval to become part of group application must be
[[Page 237]]
obtained from the group or the trade association representing the
individual facilities.
(3) For any discharge from a large municipal separate storm sewer
system;
(i) Part 1 of the application shall be submitted to the Director by
November 18, 1991;
(ii) Based on information received in the part 1 application the
Director will approve or deny a sampling plan under paragraph
(d)(1)(iv)(E) of this section within 90 days after receiving the part 1
application;
(iii) Part 2 of the application shall be submitted to the Director
by November 16, 1992.
(4) For any discharge from a medium municipal separate storm sewer
system;
(i) Part 1 of the application shall be submitted to the Director by
May 18, 1992.
(ii) Based on information received in the part 1 application the
Director will approve or deny a sampling plan under paragraph
(d)(1)(iv)(E) of this section within 90 days after receiving the part 1
application.
(iii) Part 2 of the application shall be submitted to the Director
by May 17, 1993.
(5) A permit application shall be submitted to the Director within
180 days of notice, unless permission for a later date is granted by the
Director (see Sec. 124.52(c) of this chapter), for:
(i) A storm water discharge that the Director, or in States with
approved NPDES programs, either the Director or the EPA Regional
Administrator, determines that the discharge contributes to a violation
of a water quality standard or is a significant contributor of
pollutants to waters of the United States (see paragraphs (a)(1)(v) and
(b)(15)(ii) of this section);
(ii) A storm water discharge subject to paragraph (c)(1)(v) of this
section.
(6) Facilities with existing NPDES permits for storm water
discharges associated with industrial activity shall maintain existing
permits. Facilities with permits for storm water discharges associated
with industrial activity which expire on or after May 18, 1992 shall
submit a new application in accordance with the requirements of 40 CFR
122.21 and 40 CFR 122.26(c) (Form 1, Form 2F, and other applicable
Forms) 180 days before the expiration of such permits.
(7) The Director shall issue or deny permits for discharges composed
entirely of storm water under this section in accordance with the
following schedule:
(i)(A) Except as provided in paragraph (e)(7)(i)(B) of this section,
the Director shall issue or deny permits for storm water discharges
associated with industrial activity no later than October 1, 1993, or,
for new sources or existing sources which fail to submit a complete
permit application by October 1, 1992, one year after receipt of a
complete permit application;
(B) For any municipality with a population of less than 250,000
which submits a timely Part I group application under paragraph
(e)(2)(i)(B) of this section, the Director shall issue or deny permits
for storm water discharges associated with industrial activity no later
than May 17, 1994, or, for any such municipality which fails to submit a
complete Part II group permit application by May 17, 1993, one year
after receipt of a complete permit application;
(ii) The Director shall issue or deny permits for large municipal
separate storm sewer systems no later than November 16, 1993, or, for
new sources or existing sources which fail to submit a complete permit
application by November 16, 1992, one year after receipt of a complete
permit application;
(iii) The Director shall issue or deny permits for medium municipal
separate storm sewer systems no later than May 17, 1994, or, for new
sources or existing sources which fail to submit a complete permit
application by May 17, 1993, one year after receipt of a complete permit
application.
(8) For any storm water discharge associated with small construction
activities identified in paragraph (b)(15)(i) of this section, see Sec.
122.21(c)(1). Discharges from these sources require permit authorization
by March 10, 2003, unless designated for coverage before then.
(9) For any discharge from a regulated small MS4, the permit
application made under Sec. 122.33 must be submitted to the Director
by:
[[Page 238]]
(i) March 10, 2003 if designated under Sec. 122.32(a)(1) unless
your MS4 serves a jurisdiction with a population under 10,000 and the
NPDES permitting authority has established a phasing schedule under
Sec. 123.35(d)(3) (see Sec. 122.33(c)(1)); or
(ii) Within 180 days of notice, unless the NPDES permitting
authority grants a later date, if designated under Sec. 122.32(a)(2)
(see Sec. 122.33(c)(2)).
(f) Petitions. (1) Any operator of a municipal separate storm sewer
system may petition the Director to require a separate NPDES permit (or
a permit issued under an approved NPDES State program) for any discharge
into the municipal separate storm sewer system.
(2) Any person may petition the Director to require a NPDES permit
for a discharge which is composed entirely of storm water which
contributes to a violation of a water quality standard or is a
significant contributor of pollutants to waters of the United States.
(3) The owner or operator of a municipal separate storm sewer system
may petition the Director to reduce the Census estimates of the
population served by such separate system to account for storm water
discharged to combined sewers as defined by 40 CFR 35.2005(b)(11) that
is treated in a publicly owned treatment works. In municipalities in
which combined sewers are operated, the Census estimates of population
may be reduced proportional to the fraction, based on estimated lengths,
of the length of combined sewers over the sum of the length of combined
sewers and municipal separate storm sewers where an applicant has
submitted the NPDES permit number associated with each discharge point
and a map indicating areas served by combined sewers and the location of
any combined sewer overflow discharge point.
(4) Any person may petition the Director for the designation of a
large, medium, or small municipal separate storm sewer system as defined
by paragraph (b)(4)(iv), (b)(7)(iv), or (b)(16) of this section.
(5) The Director shall make a final determination on any petition
received under this section within 90 days after receiving the petition
with the exception of petitions to designate a small MS4 in which case
the Director shall make a final determination on the petition within 180
days after its receipt.
(g) Conditional exclusion for ``no exposure'' of industrial
activities and materials to storm water. Discharges composed entirely of
storm water are not storm water discharges associated with industrial
activity if there is ``no exposure'' of industrial materials and
activities to rain, snow, snowmelt and/or runoff, and the discharger
satisfies the conditions in paragraphs (g)(1) through (g)(4) of this
section. ``No exposure'' means that all industrial materials and
activities are protected by a storm resistant shelter to prevent
exposure to rain, snow, snowmelt, and/or runoff. Industrial materials or
activities include, but are not limited to, material handling equipment
or activities, industrial machinery, raw materials, intermediate
products, by-products, final products, or waste products. Material
handling activities include the storage, loading and unloading,
transportation, or conveyance of any raw material, intermediate product,
final product or waste product.
(1) Qualification. To qualify for this exclusion, the operator of
the discharge must:
(i) Provide a storm resistant shelter to protect industrial
materials and activities from exposure to rain, snow, snow melt, and
runoff;
(ii) Complete and sign (according to Sec. 122.22) a certification
that there are no discharges of storm water contaminated by exposure to
industrial materials and activities from the entire facility, except as
provided in paragraph (g)(2) of this section;
(iii) Submit the signed certification to the NPDES permitting
authority once every five years. As of December 21, 2020 all
certifications submitted in compliance with this section must be
submitted electronically by the owner or operator to the Director or
initial recipient, as defined in 40 CFR 127.2(b), in compliance with
this section and 40 CFR part 3 (including, in all cases, subpart D to
part 3), Sec. 122.22, and 40 CFR part 127. Part 127 is not intended to
undo existing requirements for electronic reporting. Prior to this date,
and independent of part 127, owners or
[[Page 239]]
operators may be required to report electronically if specified by a
particular permit or if required to do so by state law.
(iv) Allow the Director to inspect the facility to determine
compliance with the ``no exposure'' conditions;
(v) Allow the Director to make any ``no exposure'' inspection
reports available to the public upon request; and
(vi) For facilities that discharge through an MS4, upon request,
submit a copy of the certification of ``no exposure'' to the MS4
operator, as well as allow inspection and public reporting by the MS4
operator.
(2) Industrial materials and activities not requiring storm
resistant shelter. To qualify for this exclusion, storm resistant
shelter is not required for:
(i) Drums, barrels, tanks, and similar containers that are tightly
sealed, provided those containers are not deteriorated and do not leak
(``Sealed'' means banded or otherwise secured and without operational
taps or valves);
(ii) Adequately maintained vehicles used in material handling; and
(iii) Final products, other than products that would be mobilized in
storm water discharge (e.g., rock salt).
(3) Limitations. (i) Storm water discharges from construction
activities identified in paragraphs (b)(14)(x) and (b)(15) are not
eligible for this conditional exclusion.
(ii) This conditional exclusion from the requirement for an NPDES
permit is available on a facility-wide basis only, not for individual
outfalls. If a facility has some discharges of storm water that would
otherwise be ``no exposure'' discharges, individual permit requirements
should be adjusted accordingly.
(iii) If circumstances change and industrial materials or activities
become exposed to rain, snow, snow melt, and/or runoff, the conditions
for this exclusion no longer apply. In such cases, the discharge becomes
subject to enforcement for un-permitted discharge. Any conditionally
exempt discharger who anticipates changes in circumstances should apply
for and obtain permit authorization prior to the change of
circumstances.
(iv) Notwithstanding the provisions of this paragraph, the NPDES
permitting authority retains the authority to require permit
authorization (and deny this exclusion) upon making a determination that
the discharge causes, has a reasonable potential to cause, or
contributes to an instream excursion above an applicable water quality
standard, including designated uses.
(4) Certification. The no exposure certification must require the
submission of the following information, at a minimum, to aid the NPDES
permitting authority in determining if the facility qualifies for the no
exposure exclusion:
(i) The legal name, address and phone number of the discharger (see
Sec. 122.21(b));
(ii) The facility name and address, the county name and the latitude
and longitude where the facility is located;
(iii) The certification must indicate that none of the following
materials or activities are, or will be in the foreseeable future,
exposed to precipitation:
(A) Using, storing or cleaning industrial machinery or equipment,
and areas where residuals from using, storing or cleaning industrial
machinery or equipment remain and are exposed to storm water;
(B) Materials or residuals on the ground or in storm water inlets
from spills/leaks;
(C) Materials or products from past industrial activity;
(D) Material handling equipment (except adequately maintained
vehicles);
(E) Materials or products during loading/unloading or transporting
activities;
(F) Materials or products stored outdoors (except final products
intended for outside use, e.g., new cars, where exposure to storm water
does not result in the discharge of pollutants);
(G) Materials contained in open, deteriorated or leaking storage
drums, barrels, tanks, and similar containers;
(H) Materials or products handled/stored on roads or railways owned
or maintained by the discharger;
(I) Waste material (except waste in covered, non-leaking containers,
e.g., dumpsters);
(J) Application or disposal of process wastewater (unless otherwise
permitted); and
(K) Particulate matter or visible deposits of residuals from roof
stacks/
[[Page 240]]
vents not otherwise regulated, i.e., under an air quality control
permit, and evident in the storm water outflow;
(iv) All ``no exposure'' certifications must include the following
certification statement, and be signed in accordance with the signatory
requirements of Sec. 122.22: ``I certify under penalty of law that I
have read and understand the eligibility requirements for claiming a
condition of ``no exposure'' and obtaining an exclusion from NPDES storm
water permitting; and that there are no discharges of storm water
contaminated by exposure to industrial activities or materials from the
industrial facility identified in this document (except as allowed under
paragraph (g)(2)) of this section. I understand that I am obligated to
submit a no exposure certification form once every five years to the
NPDES permitting authority and, if requested, to the operator of the
local MS4 into which this facility discharges (where applicable). I
understand that I must allow the NPDES permitting authority, or MS4
operator where the discharge is into the local MS4, to perform
inspections to confirm the condition of no exposure and to make such
inspection reports publicly available upon request. I understand that I
must obtain coverage under an NPDES permit prior to any point source
discharge of storm water from the facility. I certify under penalty of
law that this document and all attachments were prepared under my
direction or supervision in accordance with a system designed to assure
that qualified personnel properly gathered and evaluated the information
submitted. Based upon my inquiry of the person or persons who manage the
system, or those persons directly involved in gathering the information,
the information submitted is to the best of my knowledge and belief
true, accurate and complete. I am aware there are significant penalties
for submitting false information, including the possibility of fine and
imprisonment for knowing violations.''
[55 FR 48063, Nov. 16, 1990]
Editorial Note: For Federal Register citations affecting Sec.
122.26, see the List of CFR Sections Affected, which appears in the
Finding Aids section of the printed volume and at www.govinfo.gov.
Sec. 122.27 Silvicultural activities (applicable to State NPDES programs, see Sec. 123.25).
(a) Permit requirement. Silvicultural point sources, as defined in
this section, as point sources subject to the NPDES permit program.
(b) Definitions. (1) Silvicultural point source means any
discernible, confined and discrete conveyance related to rock crushing,
gravel washing, log sorting, or log storage facilities which are
operated in connection with silvicultural activities and from which
pollutants are discharged into waters of the United States. The term
does not include non-point source silvicultural activities such as
nursery operations, site preparation, reforestation and subsequent
cultural treatment, thinning, prescribed burning, pest and fire control,
harvesting operations, surface drainage, or road construction and
maintenance from which there is natural runoff. However, some of these
activities (such as stream crossing for roads) may involve point source
discharges of dredged or fill material which may require a CWA section
404 permit (See 33 CFR 209.120 and part 233).
(2) Rock crushing and gravel washing facilities means facilities
which process crushed and broken stone, gravel, and riprap (See 40 CFR
part 436, subpart B, including the effluent limitations guidelines).
(3) Log sorting and log storage facilities means facilities whose
discharges result from the holding of unprocessed wood, for example,
logs or roundwood with bark or after removal of bark held in self-
contained bodies of water (mill ponds or log ponds) or stored on land
where water is applied intentionally on the logs (wet decking). (See 40
CFR part 429, subpart I, including the effluent limitations guidelines).
Sec. 122.28 General permits (applicable to State NPDES programs,
see Sec. 123.25).
(a) Coverage. The Director may issue a general permit in accordance
with the following:
(1) Area. The general permit shall be written to cover one or more
categories
[[Page 241]]
or subcategories of discharges or sludge use or disposal practices or
facilities described in the permit under paragraph (a)(2)(ii) of this
section, except those covered by individual permits, within a geographic
area. The area should correspond to existing geographic or political
boundaries such as:
(i) Designated planning areas under sections 208 and 303 of CWA;
(ii) Sewer districts or sewer authorities;
(iii) City, county, or State political boundaries;
(iv) State highway systems;
(v) Standard metropolitan statistical areas as defined by the Office
of Management and Budget;
(vi) Urbanized areas as designated by the Bureau of the Census
according to criteria in 30 FR 15202 (May 1, 1974); or
(vii) Any other appropriate division or combination of boundaries.
(2) Sources. The general permit may be written to regulate one or
more categories or subcategories of discharges or sludge use or disposal
practices or facilities, within the area described in paragraph (a)(1)
of this section, where the sources within a covered subcategory of
discharges are either:
(i) Storm water point sources; or (ii) One or more categories or
subcategories of point sources other than storm water point sources, or
one or more categories or subcategories of ``treatment works treating
domestic sewage'', if the sources or ``treatment works treating domestic
sewage'' within each category or subcategory all:
(A) Involve the same or substantially similar types of operations;
(B) Discharge the same types of wastes or engage in the same types
of sludge use or disposal practices;
(C) Require the same effluent limitations, operating conditions, or
standards for sewage sludge use or disposal;
(D) Require the same or similar monitoring; and (E) In the opinion
of the Director, are more appropriately controlled under a general
permit than under individual permits.
(3) Water quality-based limits. Where sources within a specific
category or subcategory of dischargers are subject to water quality-
based limits imposed pursuant to Sec. 122.44, the sources in that
specific category or subcategory shall be subject to the same water
quality-based effluent limitations.
(4) Other requirements. (i) The general permit must clearly identify
the applicable conditions for each category or subcategory of
dischargers or treatment works treating domestic sewage covered by the
permit.
(ii) The general permit may exclude specified sources or areas from
coverage.
(b) Administration--(1) In general. General permits may be issued,
modified, revoked and reissued, or terminated in accordance with
applicable requirements of part 124 of this chapter or corresponding
State regulations. Special procedures for issuance are found at Sec.
123.44 of this chapter for States.
(2) Authorization to discharge, or authorization to engage in sludge
use and disposal practices. (i) Except as provided in paragraphs
(b)(2)(v) and (vi) of this section, dischargers (or treatment works
treating domestic sewage) seeking coverage under a general permit shall
submit to the Director a notice of intent to be covered by the general
permit. A discharger (or treatment works treating domestic sewage) who
fails to submit a notice of intent in accordance with the terms of the
permit is not authorized to discharge, (or in the case of sludge
disposal permit, to engage in a sludge use or disposal practice), under
the terms of the general permit unless the general permit, in accordance
with paragraph (b)(2)(v), 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). A complete and timely, notice
of intent (NOI), to be covered in accordance with general permit
requirements, fulfills the requirements for permit applications for
purposes of Sec. Sec. 122.6, 122.21, and 122.26. As of December 21,
2020 all notices of intent submitted in compliance with this section
must be submitted electronically by the discharger (or treatment works
treating domestic sewage) to the Director or initial recipient, as
defined in 40 CFR 127.2(b), in compliance with this section and 40 CFR
part 3 (including, in all cases, subpart D to part 3), Sec. 122.22, and
40 CFR part 127. Part 127 is
[[Page 242]]
not intended to undo existing requirements for electronic reporting.
Prior to this date, and independent of part 127, discharger (or
treatment works treating domestic sewage) may be required to report
electronically if specified by a particular permit or if required to do
so by state law.
(ii) The contents of the notice of intent shall be specified in the
general permit and shall require the submission of information necessary
for adequate program implementation, including at a minimum, the legal
name and address of the owner or operator, the facility name and
address, type of facility or discharges, the receiving stream(s), and
other required data elements as identified in appendix A to part 127.
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
be identified may contain alternative notice of intent requirements. All
notices of intent shall be signed in accordance with Sec. 122.22.
Notices of intent for coverage under a general permit for concentrated
animal feeding operations must include the information specified in
Sec. 122.21(i)(1), including a topographic map.
(iii) General permits shall specify the deadlines for submitting
notices of intent to be covered and the date(s) when a discharger is
authorized to discharge under the permit;
(iv) General permits shall specify whether a discharger (or
treatment works treating domestic sewage) that has submitted a complete
and timely notice of intent to be covered in accordance with the general
permit and that is eligible for coverage under the permit, is authorized
to discharge, (or in the case of a sludge disposal permit, to engage in
a sludge use or disposal practice), in accordance with the permit either
upon receipt of the notice of intent by the Director, after a waiting
period specified in the general permit, on a date specified in the
general permit, or upon receipt of notification of inclusion by the
Director. Coverage may be terminated or revoked in accordance with
paragraph (b)(3) of this section.
(v) Discharges other than discharges from publicly owned treatment
works, combined sewer overflows, municipal separate storm sewer systems,
primary industrial facilities, and storm water discharges associated
with industrial activity, may, at the discretion of the Director, be
authorized to discharge under a general permit without submitting a
notice of intent where the Director finds that a notice of intent
requirement would be inappropriate. In making such a finding, the
Director shall consider: the type of discharge; the expected nature of
the discharge; the potential for toxic and conventional pollutants in
the discharges; the expected volume of the discharges; other means of
identifying discharges covered by the permit; and the estimated number
of discharges to be covered by the permit. The Director shall provide in
the public notice of the general permit the reasons for not requiring a
notice of intent.
(vi) The Director may notify a discharger (or treatment works
treating domestic sewage) that it is covered by a general permit, even
if the discharger (or treatment works treating domestic sewage) has not
submitted a notice of intent to be covered. A discharger (or treatment
works treating domestic sewage) so notified may request an individual
permit under paragraph (b)(3)(iii) of this section.
(vii) A CAFO owner or operator may be authorized to discharge under
a general permit only in accordance with the process described in Sec.
122.23(h).
(3) Requiring an individual permit. (i) The Director may require any
discharger authorized by a general permit to apply for and obtain an
individual NPDES permit. Any interested person may petition the Director
to take action under this paragraph. Cases where an individual NPDES
permit may be required include the following:
(A) The discharger or ``treatment works treating domestic sewage''
is not in compliance with the conditions of the general NPDES permit;
(B) A change has occurred in the availability of demonstrated
technology or practices for the control or abatement of pollutants
applicable to the point source or treatment works treating domestic
sewage;
[[Page 243]]
(C) Effluent limitation guidelines are promulgated for point sources
covered by the general NPDES permit;
(D) A Water Quality Management plan containing requirements
applicable to such point sources is approved;
(E) Circumstances have changed since the time of the request to be
covered so that the discharger is no longer appropriately controlled
under the general permit, or either a temporary or permanent reduction
or elimination of the authorized discharge is necessary;
(F) Standards for sewage sludge use or disposal have been
promulgated for the sludge use and disposal practice covered by the
general NPDES permit; or
(G) The discharge(s) is a significant contributor of pollutants. In
making this determination, the Director may consider the following
factors:
(1) The location of the discharge with respect to waters of the
United States;
(2) The size of the discharge;
(3) The quantity and nature of the pollutants discharged to waters
of the United States; and
(4) Other relevant factors;
(ii) For EPA issued general permits only, the Regional Administrator
may require any owner or operator authorized by a general permit to
apply for an individual NPDES permit as provided in paragraph (b)(3)(i)
of this section, only if the owner or operator has been notified in
writing that a permit application is required. This notice shall include
a brief statement of the reasons for this decision, an application form,
a statement setting a time for the owner or operator to file the
application, and a statement that on the effective date of the
individual NPDES permit the general permit as it applies to the
individual permittee shall automatically terminate. The Director may
grant additional time upon request of the applicant.
(iii) Any owner or operator authorized by a general permit may
request to be excluded from the coverage of the general permit by
applying for an individual permit. The owner or operator shall submit an
application under Sec. 122.21, with reasons supporting the request, to
the Director no later than 90 days after the publication by EPA of the
general permit in the Federal Register or the publication by a State in
accordance with applicable State law. The request shall be processed
under part 124 or applicable State procedures. The request shall be
granted by issuing of any individual permit if the reasons cited by the
owner or operator are adequate to support the request.
(iv) When an individual NPDES permit is issued to an owner or
operator otherwise subject to a general NPDES permit, the applicability
of the general permit to the individual NPDES permittee is automatically
terminated on the effective date of the individual permit.
(v) A source excluded from a general permit solely because it
already has an individual permit may request that the individual permit
be revoked, and that it be covered by the general permit. Upon
revocation of the individual permit, the general permit shall apply to
the source.
(c) Offshore oil and gas facilities (Not applicable to State
programs). (1) The Regional Administrator shall, except as provided
below, issue general permits covering discharges from offshore oil and
gas exploration and production facilities within the Region's
jurisdiction. Where the offshore area includes areas, such as areas of
biological concern, for which separate permit conditions are required,
the Regional Administrator may issue separate general permits,
individual permits, or both. The reason for separate general permits or
individual permits shall be set forth in the appropriate fact sheets or
statements of basis. Any statement of basis or fact sheet for a draft
permit shall include the Regional Administrator's tentative
determination as to whether the permit applies to ``new sources,'' ``new
dischargers,'' or existing sources and the reasons for this
determination, and the Regional Administrator's proposals as to areas of
biological concern subject either to separate individual or general
permits. For Federally leased lands, the general permit area should
generally be no less extensive than the lease sale area defined by the
Department of the Interior.
(2) Any interested person, including any prospective permittee, may
petition the Regional Administrator to
[[Page 244]]
issue a general permit. Unless the Regional Administrator determines
under paragraph (c)(1) of this section that no general permit is
appropriate, he shall promptly provide a project decision schedule
covering the issuance of the general permit or permits for any lease
sale area for which the Department of the Interior has published a draft
environmental impact statement. The project decision schedule shall meet
the requirements of Sec. 124.3(g), and shall include a schedule
providing for the issuance of the final general permit or permits not
later than the date of the final notice of sale projected by the
Department of the Interior or six months after the date of the request,
whichever is later. The Regional Administrator may, at his discretion,
issue a project decision schedule for offshore oil and gas facilities in
the territorial seas.
(3) Nothing in this paragraph (c) shall affect the authority of the
Regional Administrator to require an individual permit under Sec.
122.28(b)(3)(i) (A) through (G).
(d) Small municipal separate storm sewer systems (MS4s) (Applicable
to State programs). For general permits issued under paragraph (b) of
this section for small MS4s, the Director must establish the terms and
conditions necessary to meet the requirements of Sec. 122.34 using one
of the two permitting approaches in paragraph (d)(1) or (2) of this
section. The Director must indicate in the permit or fact sheet which
approach is being used.
(1) Comprehensive general permit. The Director includes all required
permit terms and conditions in the general permit; or
(2) Two-step general permit. The Director includes required permit
terms and conditions in the general permit applicable to all eligible
small MS4s and, during the process of authorizing small MS4s to
discharge, establishes additional terms and conditions not included in
the general permit to satisfy one or more of the permit requirements in
Sec. 122.34 for individual small MS4 operators.
(i) The general permit must require that any small MS4 operator
seeking authorization to discharge under the general permit submit a
Notice of Intent (NOI) consistent with Sec. 122.33(b)(1)(ii).
(ii) The Director must review the NOI submitted by the small MS4
operator to determine whether the information in the NOI is complete and
to establish the additional terms and conditions necessary to meet the
requirements of Sec. 122.34. The Director may require the small MS4
operator to submit additional information. If the Director makes a
preliminary decision to authorize the small MS4 operator to discharge
under the general permit, the Director must give the public notice of
and opportunity to comment and request a public hearing on its proposed
authorization and the NOI, the proposed additional terms and conditions,
and the basis for these additional requirements. The public notice, 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 Sec. Sec. 124.10
through 124.13 (excluding Sec. 124.10(c)(2)). The Director must respond
to significant comments received during the comment period as provided
in Sec. 124.17.
(iii) Upon authorization for the MS4 to discharge under the general
permit, the final additional terms and conditions applicable to the MS4
operator become effective. The Director must notify the permittee and
inform the public of the decision to authorize the MS4 to discharge
under the general permit and of the final additional terms and
conditions specific to the MS4.
(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, 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; 80 FR 64096, Oct. 22, 2015; 81 FR
89348, Dec. 9, 2016]
[[Page 245]]
Sec. 122.29 New sources and new dischargers.
(a) Definitions. (1) New source and new discharger are defined in
Sec. 122.2. [See Note 2.]
(2) Source means any building, structure, facility, or installation
from which there is or may be a discharge of pollutants.
(3) Existing source means any source which is not a new source or a
new discharger.
(4) Site is defined in Sec. 122.2;
(5) Facilities or equipment means buildings, structures, process or
production equipment or machinery which form a permanent part of the new
source and which will be used in its operation, if these facilities or
equipment are of such value as to represent a substantial commitment to
construct. It excludes facilities or equipment used in connection with
feasibility, engineering, and design studies regarding the source or
water pollution treatment for the source.
(b) Criteria for new source determination. (1) Except as otherwise
provided in an applicable new source performance standard, a source is a
``new source'' if it meets the definition of ``new source'' in Sec.
122.2, and
(i) It is constructed at a site at which no other source is located;
or
(ii) It totally replaces the process or production equipment that
causes the discharge of pollutants at an existing source; or
(iii) Its processes are substantially independent of an existing
source at the same site. In determining whether these processes are
substantially independent, the Director shall consider such factors as
the extent to which the new facility is integrated with the existing
plant; and the extent to which the new facility is engaged in the same
general type of activity as the existing source.
(2) A source meeting the requirements of paragraphs (b)(1) (i),
(ii), or (iii) of this section is a new source only if a new source
performance standard is independently applicable to it. If there is no
such independently applicable standard, the source is a new discharger.
See Sec. 122.2.
(3) Construction on a site at which an existing source is located
results in a modification subject to Sec. 122.62 rather than a new
source (or a new discharger) if the construction does not create a new
building, structure, facility, or installation meeting the criteria of
paragraph (b)(1) (ii) or (iii) of this section but otherwise alters,
replaces, or adds to existing process or production equipment.
(4) Construction of a new source as defined under Sec. 122.2 has
commenced if the owner or operator has:
(i) Begun, or caused to begin as part of a continuous on-site
construction program:
(A) Any placement, assembly, or installation of facilities or
equipment; or
(B) Significant site preparation work including clearing, excavation
or removal of existing buildings, structures, or facilities which is
necessary for the placement, assembly, or installation of new source
facilities or equipment; or
(ii) Entered into a binding contractual obligation for the purchase
of facilities or equipment which are intended to be used in its
operation with a reasonable time. Options to purchase or contracts which
can be terminated or modified without substantial loss, and contracts
for feasibility engineering, and design studies do not constitute a
contractual obligation under the paragraph.
(c) Requirement for an environmental impact statement. (1) The
issuance of an NPDES permit to new source:
(i) By EPA may be a major Federal action significantly affecting the
quality of the human environment within the meaning of the National
Environmental Policy Act of 1969 (NEPA), 33 U.S.C. 4321 et seq. and is
subject to the environmental review provisions of NEPA as set out in 40
CFR part 6, subpart F. EPA will determine whether an Environmental
Impact Statement (EIS) is required under Sec. 122.21(l) (special
provisions for applications from new sources) and 40 CFR part 6, subpart
F;
(ii) By an NPDES approved State is not a Federal action and
therefore does not require EPA to conduct an environmental review.
(2) An EIS prepared under this paragraph shall include a
recommendation either to issue or deny the permit.
[[Page 246]]
(i) If the recommendation is to deny the permit, the final EIS shall
contain the reasons for the recommendation and list those measures, if
any, which the applicant could take to cause the recommendation to be
changed;
(ii) If the recommendation is to issue the permit, the final EIS
shall recommend the actions, if any, which the permittee should take to
prevent or minimize any adverse environmental impacts;
(3) The Regional Administrator, to the extent allowed by law, shall
issue, condition (other than imposing effluent limitations), or deny the
new source NPDES permit following a complete evaluation of any
significant beneficial and adverse impacts of the proposed action and a
review of the recommendations contained in the EIS or finding of no
significant impact.
(d) Effect of compliance with new source performance standards. (The
provisions of this paragraph do not apply to existing sources which
modify their pollution control facilities or construct new pollution
control facilities and achieve performance standards, but which are
neither new sources or new dischargers or otherwise do not meet the
requirements of this paragraph.)
(1) Except as provided in paragraph (d)(2) of this section, any new
discharger, the construction of which commenced after October 18, 1972,
or new source which meets the applicable promulgated new source
performance standards before the commencement of discharge, may not be
subject to any more stringent new source performance standards or to any
more stringent technology-based standards under section 301(b)(2) of CWA
for the soonest ending of the following periods:
(i) Ten years from the date that construction is completed;
(ii) Ten years from the date the source begins to discharge process
or other nonconstruction related wastewater; or
(iii) The period of depreciation or amortization of the facility for
the purposes of section 167 or 169 (or both) of the Internal Revenue
Code of 1954.
(2) The protection from more stringent standards of performance
afforded by paragraph (d)(1) of this section does not apply to:
(i) Additional or more stringent permit conditions which are not
technology based; for example, conditions based on water quality
standards, or toxic effluent standards or prohibitions under section
307(a) of CWA; or
(ii) Additional permit conditions in accordance with Sec. 125.3
controlling toxic pollutants or hazardous substances which are not
controlled by new source performance standards. This includes permit
conditions controlling pollutants other than those identified as toxic
pollutants or hazardous substances when control of these pollutants has
been specifically identified as the method to control the toxic
pollutants or hazardous substances.
(3) When an NPDES permit issued to a source with a ``protection
period'' under paragraph (d)(1) of this section will expire on or after
the expiration of the protection period, that permit shall require the
owner or operator of the source to comply with the requirements of
section 301 and any other then applicable requirements of CWA
immediately upon the expiration of the protection period. No additional
period for achieving compliance with these requirements may be allowed
except when necessary to achieve compliance with requirements
promulgated less than 3 years before the expiration of the protection
period.
(4) The owner or operator of a new source, a new discharger which
commenced discharge after August 13, 1979, or a recommencing discharger
shall install and have in operating condition, and shall ``start-up''
all pollution control equipment required to meet the conditions of its
permits before beginning to discharge. Within the shortest feasible time
(not to exceed 90 days), the owner or operator must meet all permit
conditions. The requirements of this paragraph do not apply if the owner
or operator is issued a permit containing a compliance schedule under
Sec. 122.47(a)(2).
(5) After the effective date of new source performance standards, it
shall be unlawful for any owner or operator of any new source to operate
the source
[[Page 247]]
in violation of those standards applicable to the source.
[48 FR 14153, Apr. 1, 1983, as amended at 49 FR 38048, Sept. 26, 1984;
50 FR 4514, Jan. 31, 1985; 50 FR 6941, Feb. 19, 1985; 65 FR 30908, May
15, 2000]
Sec. 122.30 What are the objectives of the storm water regulations
for small MS4s?
(a) Sections 122.30 through 122.37 are written in a ``readable
regulation'' format that includes both rule requirements and EPA
guidance that is not legally binding. EPA has clearly distinguished its
recommended guidance from the rule requirements by putting the guidance
in a separate paragraph headed by the word ``guidance''.
(b) Under the statutory mandate in section 402(p)(6) of the Clean
Water Act, the purpose of this portion of the storm water program is to
designate additional sources that need to be regulated to protect water
quality and to establish a comprehensive storm water program to regulate
these sources. (Because the storm water program is part of the National
Pollutant Discharge Elimination System (NPDES) Program, you should also
refer to Sec. 122.1 which addresses the broader purpose of the NPDES
program.)
(c) Storm water runoff continues to harm the nation's waters. Runoff
from lands modified by human activities can harm surface water resources
in several ways including by changing natural hydrologic patterns and by
elevating pollutant concentrations and loadings. Storm water runoff may
contain or mobilize high levels of contaminants, such as sediment,
suspended solids, nutrients, heavy metals, pathogens, toxins, oxygen-
demanding substances, and floatables.
(d) EPA strongly encourages partnerships and the watershed approach
as the management framework for efficiently, effectively, and
consistently protecting and restoring aquatic ecosystems and protecting
public health.
[64 FR 68842, Dec. 8, 1999]
Sec. 122.31 As a Tribe, what is my role under the NPDES storm
water program?
As a Tribe you may:
(a) Be authorized to operate the NPDES program including the storm
water program, after EPA determines that you are eligible for treatment
in the same manner as a State under Sec. Sec. 123.31 through 123.34 of
this chapter. (If you do not have an authorized NPDES program, EPA
implements the program for discharges on your reservation as well as
other Indian country, generally.);
(b) Be classified as an owner of a regulated small MS4, as defined
in Sec. 122.32. (Designation of your Tribe as an owner of a small MS4
for purposes of this part is an approach that is consistent with EPA's
1984 Indian Policy of operating on a government-to-government basis with
EPA looking to Tribes as the lead governmental authorities to address
environmental issues on their reservations as appropriate. If you
operate a separate storm sewer system that meets the definition of a
regulated small MS4, you are subject to the requirements under
Sec. Sec. 122.33 through 122.35. If you are not designated as a
regulated small MS4, you may ask EPA to designate you as such for the
purposes of this part.); or
(c) Be a discharger of storm water associated with industrial
activity or small construction activity under Sec. Sec. 122.26(b)(14)
or (b)(15), in which case you must meet the applicable requirements.
Within Indian country, the NPDES permitting authority is generally EPA,
unless you are authorized to administer the NPDES program.
[64 FR 68842, Dec. 8, 1999]
Sec. 122.32 As an operator of a small MS4, am I regulated under
the NPDES storm water program?
(a) Unless you qualify for a waiver under paragraph (c) of this
section, you are regulated if you operate a small MS4, including but not
limited to systems operated by federal, State, Tribal, and local
governments, including State departments of transportation; and:
(1) Your small MS4 is located in an urbanized area as determined by
the latest Decennial Census by the Bureau of the Census. (If your small
MS4 is not located entirely within an urbanized area, only the portion
that is within the urbanized area is regulated); or
[[Page 248]]
(2) You are designated by the NPDES permitting authority, including
where the designation is pursuant to Sec. Sec. 123.35(b)(3) and (b)(4)
of this chapter, or is based upon a petition under Sec. 122.26(f).
(b) You may be the subject of a petition to the NPDES permitting
authority to require an NPDES permit for your discharge of storm water.
If the NPDES permitting authority determines that you need a permit, you
are required to comply with Sec. Sec. 122.33 through 122.35.
(c) The NPDES permitting authority may waive the requirements
otherwise applicable to you if you meet the criteria of paragraph (d) or
(e) of this section. If you receive a waiver under this section, you may
subsequently be required to seek coverage under an NPDES permit in
accordance with Sec. 122.33(a) if circumstances change. (See also Sec.
123.35(b) of this chapter.)
(d) The NPDES permitting authority may waive permit coverage if your
MS4 serves a population of less than 1,000 within the urbanized area and
you meet the following criteria:
(1) Your system is not contributing substantially to the pollutant
loadings of a physically interconnected MS4 that is regulated by the
NPDES storm water program (see Sec. 123.35(b)(4) of this chapter); and
(2) If you discharge any pollutant(s) that have been identified as a
cause of impairment of any water body to which you discharge, storm
water controls are not needed based on wasteload allocations that are
part of an EPA approved or established ``total maximum daily load''
(TMDL) that addresses the pollutant(s) of concern.
(e) The NPDES permitting authority may waive permit coverage if your
MS4 serves a population under 10,000 and you meet the following
criteria:
(1) The permitting authority has evaluated all waters of the U.S.,
including small streams, tributaries, lakes, and ponds, that receive a
discharge from your MS4;
(2) For all such waters, the permitting authority has determined
that storm water controls are not needed based on wasteload allocations
that are part of an EPA approved or established TMDL that addresses the
pollutant(s) of concern or, if a TMDL has not been developed or
approved, an equivalent analysis that determines sources and allocations
for the pollutant(s) of concern;
(3) For the purpose of this paragraph (e), the pollutant(s) of
concern include biochemical oxygen demand (BOD), sediment or a parameter
that addresses sediment (such as total suspended solids, turbidity or
siltation), pathogens, oil and grease, and any pollutant that has been
identified as a cause of impairment of any water body that will receive
a discharge from your MS4; and
(4) The permitting authority has determined that future discharges
from your MS4 do not have the potential to result in exceedances of
water quality standards, including impairment of designated uses, or
other significant water quality impacts, including habitat and
biological impacts.
[64 FR 68842, Dec. 8, 1999]
Sec. 122.33 Requirements for obtaining permit coverage for regulated
small MS4s.
(a) The operator of any regulated small MS4 under Sec. 122.32 must
seek coverage under an NPDES permit issued by the applicable NPDES
permitting authority. If the small MS4 is located in an NPDES authorized
State, Tribe, or Territory, then that State, Tribe, or Territory is the
NPDES permitting authority. Otherwise, the NPDES permitting authority is
the EPA Regional Office for the Region where the small MS4 is located.
(b) The operator of any regulated small MS4 must seek authorization
to discharge under a general or individual NPDES permit, as follows:
(1) General permit. (i) If seeking coverage under a general permit
issued by the NPDES permitting authority in accordance with Sec.
122.28(d)(1), the small MS4 operator must submit a Notice of Intent
(NOI) to the NPDES permitting authority consistent with Sec.
122.28(b)(2). The small MS4 operator may file its own NOI, or the small
MS4 operator and other municipalities or governmental entities may
jointly submit an NOI. If the small MS4 operator wants to share
responsibilities for meeting the minimum measures with other
municipalities or governmental entities,
[[Page 249]]
the small MS4 operator must submit an NOI that describes which minimum
measures it will implement and identify the entities that will implement
the other minimum measures within the area served by the MS4. The
general permit will explain any other steps necessary to obtain permit
authorization.
(ii) If seeking coverage under a general permit issued by the NPDES
permitting authority in accordance with Sec. 122.28(d)(2), the small
MS4 operator must submit an NOI to the Director consisting of the
minimum required information in Sec. 122.28(b)(2)(ii), and any other
information the Director identifies as necessary to establish additional
terms and conditions that satisfy the permit requirements of Sec.
122.34, such as the information required under Sec. 122.33(b)(2)(i).
The general permit will explain any other steps necessary to obtain
permit authorization.
(2) Individual permit. (i) If seeking authorization to discharge
under an individual permit to implement a program under Sec. 122.34,
the small MS4 operator must submit an application to the appropriate
NPDES permitting authority that includes the information required under
Sec. 122.21(f) and the following:
(A) The best management practices (BMPs) that the small MS4 operator
or another entity proposes to implement for each of the storm water
minimum control measures described in Sec. 122.34(b)(1) through (6);
(B) The proposed measurable goals for each of the BMPs including, as
appropriate, the months and years in which the small MS4 operator
proposes to undertake required actions, including interim milestones and
the frequency of the action;
(C) The person or persons responsible for implementing or
coordinating the storm water management program;
(D) An estimate of square mileage served by the small MS4;
(E) Any additional information that the NPDES permitting authority
requests; and
(F) A storm sewer map that satisfies the requirement of Sec.
122.34(b)(3)(i) satisfies the map requirement in Sec. 122.21(f)(7).
(ii) If seeking authorization to discharge under an individual
permit to implement a program that is different from the program under
Sec. 122.34, the small MS4 operator must comply with the permit
application requirements in Sec. 122.26(d). The small MS4 operator must
submit both parts of the application requirements in Sec. 122.26(d)(1)
and (2). The small MS4 operator must submit the application at least 180
days before the expiration of the small MS4 operator's existing permit.
Information required by Sec. 122.26(d)(1)(ii) and (d)(2) regarding its
legal authority is not required, unless the small MS4 operator intends
for the permit writer to take such information into account when
developing other permit conditions.
(iii) If allowed by your NPDES permitting authority, the small MS4
operator and another regulated entity may jointly apply under either
paragraph (b)(2)(i) or (ii) of this section to be co-permittees under an
individual permit.
(3) Co-permittee alternative. If the regulated small MS4 is in the
same urbanized area as a medium or large MS4 with an NPDES storm water
permit and that other MS4 is willing to have the small MS4 operator
participate in its storm water program, the parties may jointly seek a
modification of the other MS4 permit to include the small MS4 operator
as a limited co-permittee. As a limited co-permittee, the small MS4
operator will be responsible for compliance with the permit's conditions
applicable to its jurisdiction. If the small MS4 operator chooses this
option it must comply with the permit application requirements of Sec.
122.26, rather than the requirements of Sec. 122.33(b)(2)(i). The small
MS4 operator does not need to comply with the specific application
requirements of Sec. 122.26(d)(1)(iii) and (iv) and (d)(2)(iii)
(discharge characterization). The small MS4 operator may satisfy the
requirements in Sec. 122.26 (d)(1)(v) and (d)(2)(iv) (identification of
a management program) by referring to the other MS4's storm water
management program.
(4) Guidance for paragraph (b)(3) of this section. In referencing
the other MS4 operator's storm water management program, the small MS4
operator should briefly describe how the existing program will address
discharges from the small MS4 or would need to be supplemented in order
to adequately
[[Page 250]]
address the discharges. The small MS4 operator should also explain its
role in coordinating storm water pollutant control activities in the
MS4, and detail the resources available to the small MS4 operator to
accomplish the program.
(c) If the regulated small MS4 is designated under Sec.
122.32(a)(2), the small MS4 operator must apply for coverage under an
NPDES permit, or apply for a modification of an existing NPDES permit
under paragraph (b)(3) of this section, within 180 days of notice of
such designation, unless the NPDES permitting authority grants a later
date.
[81 FR 89348, Dec. 9, 2016]
Sec. 122.34 Permit requirements for regulated small MS4 permits.
(a) General requirements. For any permit issued to a regulated small
MS4, the NPDES permitting authority must include permit terms and
conditions to reduce the discharge of pollutants from the MS4 to the
maximum extent practicable (MEP), to protect water quality, and to
satisfy the appropriate water quality requirements of the Clean Water
Act. Terms and conditions that satisfy the requirements of this section
must be expressed in clear, specific, and measurable terms. Such terms
and conditions may include narrative, numeric, or other types of
requirements (e.g., implementation of specific tasks or best management
practices (BMPs), BMP design requirements, performance requirements,
adaptive management requirements, schedules for implementation and
maintenance, and frequency of actions).
(1) For permits providing coverage to any small MS4s for the first
time, the NPDES permitting authority may specify a time period of up to
5 years from the date of permit issuance for the permittee to fully
comply with the conditions of the permit and to implement necessary
BMPs.
(2) For each successive permit, the NPDES permitting authority must
include terms and conditions that meet the requirements of this section
based on its evaluation of the current permit requirements, record of
permittee compliance and program implementation progress, current water
quality conditions, and other relevant information.
(b) Minimum control measures. The permit must include requirements
that ensure the permittee implements, or continues to implement, the
minimum control measures in paragraphs (b)(1) through (6) of this
section during the permit term. The permit must also require a written
storm water management program document or documents that, at a minimum,
describes in detail how the permittee intends to comply with the
permit's requirements for each minimum control measure.
(1) Public education and outreach on storm water impacts. (i) The
permit must identify the minimum elements and require implementation of
a public education program to distribute educational materials to the
community or conduct equivalent outreach activities about the impacts of
storm water discharges on water bodies and the steps that the public can
take to reduce pollutants in storm water runoff.
(ii) Guidance for NPDES permitting authorities and regulated small
MS4s: The permittee may use storm water educational materials provided
by the State, Tribe, EPA, environmental, public interest or trade
organizations, or other MS4s. The public education program should inform
individuals and households about the steps they can take to reduce storm
water pollution, such as ensuring proper septic system maintenance,
ensuring the proper use and disposal of landscape and garden chemicals
including fertilizers and pesticides, protecting and restoring riparian
vegetation, and properly disposing of used motor oil or household
hazardous wastes. EPA recommends that the program inform individuals and
groups how to become involved in local stream and beach restoration
activities as well as activities that are coordinated by youth service
and conservation corps or other citizen groups. EPA recommends that the
permit require the permittee to tailor the public education program,
using a mix of locally appropriate strategies, to target specific
audiences and communities. Examples of strategies include distributing
brochures or fact sheets, sponsoring speaking engagements before
community groups, providing public
[[Page 251]]
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 the permit require that some of the materials or
outreach programs be directed toward targeted groups of commercial,
industrial, and institutional entities likely to have significant storm
water impacts. For example, providing information to restaurants on the
impact of grease clogging storm drains and to garages on the impact of
oil discharges. The permit should encourage the permittee to tailor the
outreach program to address the viewpoints and concerns of all
communities, particularly minority and disadvantaged communities, as
well as any special concerns relating to children.
(2) Public involvement/participation. (i) The permit must identify
the minimum elements and require implementation of a public involvement/
participation program that complies with State, Tribal, and local public
notice requirements.
(ii) Guidance for NPDES permitting authorities and regulated small
MS4s: EPA recommends that the permit include provisions addressing the
need for the public to be included in developing, implementing, and
reviewing the storm water management program and that the public
participation process should make efforts to reach out and engage all
economic and ethnic groups. Opportunities for members of the public to
participate in program development and implementation include serving as
citizen representatives on a local storm water management panel,
attending public hearings, working as citizen volunteers to educate
other individuals about the program, assisting in program coordination
with other pre-existing programs, or participating in volunteer
monitoring efforts. (Citizens should obtain approval where necessary for
lawful access to monitoring sites.)
(3) Illicit discharge detection and elimination. (i) The permit must
identify the minimum elements and require the development,
implementation, and enforcement of a program to detect and eliminate
illicit discharges (as defined at Sec. 122.26(b)(2)) into the small
MS4. At a minimum, the permit must require the permittee to:
(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 the storm sewer system and implement
appropriate enforcement procedures and actions;
(C) Develop and implement a plan to detect and address non-storm
water discharges, including illegal dumping, to the system; and
(D) Inform public employees, businesses, and the general public of
hazards associated with illegal discharges and improper disposal of
waste.
(ii) The permit must also require the permittee to address the
following categories of non-storm water discharges or flows (i.e.,
illicit discharges) only if the permittee identifies them as a
significant contributor of pollutants to the small MS4: Water line
flushing, landscape irrigation, diverted stream flows, rising ground
waters, uncontaminated ground water infiltration (as defined at 40 CFR
35.2005(b)(20)), uncontaminated pumped ground water, discharges from
potable water sources, foundation drains, air conditioning condensation,
irrigation water, springs, water from crawl space pumps, footing drains,
lawn watering, individual residential car washing, flows from riparian
habitats and wetlands, dechlorinated swimming pool discharges, and
street wash water (discharges or flows from firefighting activities are
excluded from the effective prohibition against non-storm water and need
only be addressed where they are identified as significant sources of
pollutants to waters of the United States).
(iii) Guidance for NPDES permitting authorities and regulated small
MS4s: EPA recommends that the permit require the plan to detect and
address illicit discharges include the following
[[Page 252]]
four components: Procedures for locating priority areas likely to have
illicit discharges; procedures for tracing the source of an illicit
discharge; procedures for removing the source of the discharge; and
procedures for program evaluation and assessment. EPA recommends that
the permit require the permittee to visually screen outfalls during dry
weather and conduct field tests of selected pollutants as part of the
procedures for locating priority areas. Illicit discharge education
actions may include storm drain stenciling, a program to promote,
publicize, and facilitate public reporting of illicit connections or
discharges, and distribution of outreach materials.
(4) Construction site storm water runoff control. (i) The permit
must identify the minimum elements and require the development,
implementation, and enforcement of a program to reduce pollutants in any
storm water runoff to the 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 the 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 Director waives
requirements for storm water discharges associated with small
construction activity in accordance with Sec. 122.26(b)(15)(i), the
permittee is not required to develop, implement, and/or enforce a
program to reduce pollutant discharges from such sites. At a minimum,
the permit must require the permittee to develop and implement:
(A) An ordinance or other regulatory mechanism to require erosion
and sediment controls, as well as sanctions to ensure compliance, to the
extent allowable under State, Tribal, or local law;
(B) Requirements for construction site operators to implement
appropriate erosion and sediment control best management practices;
(C) Requirements for construction site operators to control waste
such as discarded building materials, concrete truck washout, chemicals,
litter, and sanitary waste at the construction site that may cause
adverse impacts to water quality;
(D) Procedures for site plan review which incorporate consideration
of potential water quality impacts;
(E) Procedures for receipt and consideration of information
submitted by the public, and
(F) Procedures for site inspection and enforcement of control
measures.
(ii) Guidance for NPDES permitting authorities and regulated small
MS4s: Examples of sanctions to ensure compliance include non-monetary
penalties, fines, bonding requirements and/or permit denials for non-
compliance. EPA recommends that the procedures for site plan review
include the review of individual pre-construction site plans to ensure
consistency with local sediment and erosion control requirements.
Procedures for site inspections and enforcement of control measures
could include steps to identify priority sites for inspection and
enforcement based on the nature of the construction activity,
topography, and the characteristics of soils and receiving water
quality. EPA also recommends that the permit require the permittee to
provide appropriate educational and training measures for construction
site operators, and require storm water pollution prevention plans for
construction sites within the MS4's jurisdiction that discharge into the
system. See Sec. 122.44(s) (NPDES permitting authorities' option to
incorporate qualifying State, Tribal and local erosion and sediment
control programs into NPDES permits for storm water discharges from
construction sites). Also see Sec. 122.35(b) (The NPDES permitting
authority may recognize that another government entity, including the
NPDES permitting authority, may be responsible for implementing one or
more of the minimum measures on the permittee's behalf).
(5) Post-construction storm water management in new development and
redevelopment. (i) The permit must identify the minimum elements and
require the development, implementation, and enforcement of a program to
address storm water runoff from new development and redevelopment
projects that disturb greater than or equal to one acre, including
projects less than one acre that are part of a larger common
[[Page 253]]
plan of development or sale, that discharge into the small MS4. The
permit must ensure that controls are in place that would prevent or
minimize water quality impacts. At a minimum, the permit must require
the permittee to:
(A) Develop and implement strategies which include a combination of
structural and/or non-structural best management practices (BMPs)
appropriate for the community;
(B) Use an ordinance or other regulatory mechanism to address post-
construction runoff from new development and redevelopment projects to
the extent allowable under State, Tribal or local law; and
(C) Ensure adequate long-term operation and maintenance of BMPs.
(ii) Guidance for NPDES permitting authorities and regulated small
MS4s: 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
permit ensure that BMPs included in the program: Be appropriate for the
local community; minimize water quality impacts; and attempt to maintain
pre-development runoff conditions. EPA encourages the permittee to
participate in locally-based watershed planning efforts which attempt to
involve a diverse group of stakeholders including interested citizens.
When developing a program that is consistent with this measure's intent,
EPA recommends that the permit require the permittee to adopt a planning
process that identifies the municipality's program goals (e.g., minimize
water quality impacts resulting from post-construction runoff from new
development and redevelopment), implementation strategies (e.g., adopt a
combination of structural and/or non-structural BMPs), operation and
maintenance policies and procedures, and enforcement procedures. In
developing the program, the permit should also require the permittee to
assess existing ordinances, policies, programs and studies that address
storm water runoff quality. In addition to assessing these existing
documents and programs, the permit should require the permittee to
provide opportunities to the public to participate in the development of
the program. Non-structural BMPs are preventative actions that involve
management and source controls such as: Policies and ordinances that
provide requirements and standards to direct growth to identified areas,
protect sensitive areas such as wetlands and riparian areas, maintain
and/or increase open space (including a dedicated funding source for
open space acquisition), provide buffers along sensitive water bodies,
minimize impervious surfaces, and minimize disturbance of soils and
vegetation; policies or ordinances that encourage infill development in
higher density urban areas, and areas with existing infrastructure;
education programs for developers and the public about project designs
that minimize water quality impacts; and measures such as minimization
of percent impervious area after development and minimization of
directly connected impervious areas. Structural BMPs include: Storage
practices such as wet ponds and extended-detention outlet structures;
filtration practices such as grassed swales, sand filters and filter
strips; and infiltration practices such as infiltration basins and
infiltration trenches. EPA recommends that the permit ensure the
appropriate implementation of the structural BMPs by considering some or
all of the following: Pre-construction review of BMP designs;
inspections during construction to verify BMPs are built as designed;
post-construction inspection and maintenance of BMPs; and penalty
provisions for the noncompliance with design, construction or operation
and maintenance. Storm water technologies are constantly being improved,
and EPA recommends that the permit requirements be responsive to these
changes, developments or improvements in control technologies.
(6) Pollution prevention/good housekeeping for municipal operations.
(i) The permit must identify the minimum elements and require the
development and implementation of an operation and maintenance program
that includes a training component and has the ultimate goal of
preventing or reducing pollutant runoff from municipal operations. Using
training materials that are available from EPA, the State,
[[Page 254]]
Tribe, or other organizations, the program must include employee
training to prevent and reduce storm water pollution from activities
such as park and open space maintenance, fleet and building maintenance,
new construction and land disturbances, and storm water system
maintenance.
(ii) Guidance for NPDES permitting authorities and regulated small
MS4s: EPA recommends that the permit address the following: Maintenance
activities, maintenance schedules, and long-term inspection procedures
for structural and non-structural storm water controls to reduce
floatables and other pollutants discharged from the separate storm
sewers; controls for reducing or eliminating the discharge of pollutants
from streets, roads, highways, municipal parking lots, maintenance and
storage yards, fleet or maintenance shops with outdoor storage areas,
salt/sand storage locations and snow disposal areas operated by the
permittee, and waste transfer stations; procedures for properly
disposing of waste removed from the separate storm sewers and areas
listed above (such as dredge spoil, accumulated sediments, floatables,
and other debris); and ways to ensure that new flood management projects
assess the impacts on water quality and examine existing projects for
incorporating additional water quality protection devices or practices.
Operation and maintenance should be an integral component of all storm
water management programs. This measure is intended to improve the
efficiency of these programs and require new programs where necessary.
Properly developed and implemented operation and maintenance programs
reduce the risk of water quality problems.
(c) Other applicable requirements. As appropriate, the permit will
include:
(1) More stringent terms and conditions, including permit
requirements that modify, or are in addition to, the minimum control
measures based on an approved total maximum daily load (TMDL) or
equivalent analysis, or where the Director determines such terms and
conditions are needed to protect water quality.
(2) Other applicable NPDES permit requirements, standards and
conditions established in the individual or general permit, developed
consistent with the provisions of Sec. Sec. 122.41 through 122.49.
(d) Evaluation and assessment requirements--(1) Evaluation. The
permit must require the permittee to evaluate compliance with the terms
and conditions of the permit, including the effectiveness of the
components of its storm water management program, and the status of
achieving the measurable requirements in the permit.
Note to paragraph (d)(1): The NPDES permitting authority may
determine monitoring requirements for the permittee in accordance with
State/Tribal monitoring plans appropriate to the watershed.
Participation in a group monitoring program is encouraged.
(2) Recordkeeping. The permit must require that the permittee keep
records required by the NPDES permit for at least 3 years and submit
such records to the NPDES permitting authority when specifically asked
to do so. The permit must require the permittee to make records,
including a written description of the storm water management program,
available to the public at reasonable times during regular business
hours (see Sec. 122.7 for confidentiality provision). (The permittee
may assess a reasonable charge for copying. The permit may allow the
permittee to require a member of the public to provide advance notice.)
(3) Reporting. Unless the permittee is relying on another entity to
satisfy its NPDES permit obligations under Sec. 122.35(a), the
permittee must submit annual reports to the NPDES permitting authority
for its first permit term. For subsequent permit terms, the permittee
must submit reports in year two and four unless the NPDES permitting
authority requires more frequent reports. As of December 21, 2020 all
reports submitted in compliance with this section must be submitted
electronically by the owner, operator, or the duly authorized
representative of the small MS4 to the NPDES permitting authority or
initial recipient, as defined in 40 CFR 127.2(b), in compliance with
this section and 40 CFR part 3 (including, in all cases, subpart D to
part 3), Sec. 122.22, and 40 CFR part 127.
[[Page 255]]
Part 127 is not intended to undo existing requirements for electronic
reporting. Prior to this date, and independent of part 127, the owner,
operator, or the duly authorized representative of the small MS4 may be
required to report electronically if specified by a particular permit or
if required to do so by state law. The report must include:
(i) The status of compliance with permit terms and conditions;
(ii) Results of information collected and analyzed, including
monitoring data, if any, during the reporting period;
(iii) A summary of the storm water activities the permittee proposes
to undertake to comply with the permit during the next reporting cycle;
(iv) Any changes made during the reporting period to the permittee's
storm water management program; and
(v) Notice that the permittee is relying on another governmental
entity to satisfy some of the permit obligations (if applicable),
consistent with Sec. 122.35(a).
(e) Qualifying local program. If an existing qualifying local
program requires the permittee to implement one or more of the minimum
control measures of paragraph (b) of this section, the NPDES permitting
authority may include conditions in the NPDES permit that direct the
permittee to follow that qualifying program's requirements rather than
the requirements of paragraph (b). A qualifying local program is a
local, State or Tribal municipal storm water management program that
imposes, at a minimum, the relevant requirements of paragraph (b).
[81 FR 89349, Dec. 9, 2016]]
Sec. 122.35 May the operator of a regulated small MS4 share
the responsibility to implement the minimum control measures with
other entities?
(a) The permittee may rely on another entity to satisfy its 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 the
permittee's behalf. In the reports, the permittee must submit under
Sec. 122.34(d)(3), the permittee must also specify that it is relying
on another entity to satisfy some of the permit obligations. If the
permittee is relying on another governmental entity regulated under
section 122 to satisfy all of the permit obligations, including the
obligation to file periodic reports required by Sec. 122.34(d)(3), the
permittee must note that fact in its NOI, but the permittee is not
required to file the periodic reports. The permittee remains responsible
for compliance with the permit obligations if the other entity fails to
implement the control measure (or component thereof). Therefore, EPA
encourages the permittee to enter into a legally binding agreement with
that entity if the permittee wants to minimize any uncertainty about
compliance with the permit.
(b) In some cases, the NPDES permitting authority may recognize,
either in your individual NPDES permit or in an NPDES general permit,
that another governmental entity is responsible under an NPDES permit
for implementing one or more of the minimum control measures for your
small MS4 or that the permitting authority itself is responsible. Where
the permitting authority does so, you are not required to include such
minimum control measure(s) in your storm water management program. (For
example, if a State or Tribe is subject to an NPDES permit that requires
it to administer a program to control construction site runoff at the
State or Tribal level and that program satisfies all of the requirements
of Sec. 122.34(b)(4), you could avoid responsibility for the
construction measure, but would be responsible for the remaining minimum
control measures.) Your permit may be reopened and modified to include
the requirement to implement a minimum control measure if the entity
fails to implement it.
[64 FR 68846, Dec. 8, 1999, as amended at 81 FR 89352, Dec. 9, 2016]
[[Page 256]]
Sec. 122.36 As an operator of a regulated small MS4, what happens
if I don't comply with the application or permit requirements in
Sec. Sec. 122.33 through 122.35?
NPDES permits are federally enforceable. Violators may be subject to
the enforcement actions and penalties described in Clean Water Act
sections 309 (b), (c), and (g) and 505, or under applicable State,
Tribal, or local law. Compliance with a permit issued pursuant to
section 402 of the Clean Water Act is deemed compliance, for purposes of
sections 309 and 505, with sections 301, 302, 306, 307, and 403, except
any standard imposed under section 307 for toxic pollutants injurious to
human health. If you are covered as a co-permittee under an individual
permit or under a general permit by means of a joint Notice of Intent
you remain subject to the enforcement actions and penalties for the
failure to comply with the terms of the permit in your jurisdiction
except as set forth in Sec. 122.35(b).
[64 FR 68847, Dec. 8, 1999]
Sec. 122.37 Will the small MS4 storm water program regulations at
Sec. Sec. 122.32 through 122.36 and Sec. 123.35 of this chapter
change in the future?
EPA will evaluate the small MS4 regulations at Sec. Sec. 122.32
through 122.36 and Sec. 123.35 of this chapter after December 10, 2012
and make any necessary revisions. (EPA intends to conduct an enhanced
research effort and compile a comprehensive evaluation of the NPDES MS4
storm water program. EPA will re-evaluate the regulations based on data
from the NPDES MS4 storm water program, from research on receiving water
impacts from storm water, and the effectiveness of best management
practices (BMPs), as well as other relevant information sources.)
[64 FR 68847, Dec. 8, 1999]
Sec. 122.38 Public notification requirements for CSO discharges to
the Great Lakes Basin.
(a) All permittees authorized to discharge a combined sewer overflow
(CSO) to the Great Lakes Basin (``Great Lakes Basin CSO permittee'')
must provide public notification of CSO discharges as described in this
paragraph (a) after November 7, 2018. Public notification shall consist
of:
(1) Signage. (i) The Great Lakes Basin CSO permittee shall ensure
that there is adequate signage where signage is feasible at:
(A) CSO discharge points (unless the permittee demonstrates to the
Director that no public access of, or public contact with, the receiving
water is expected); and
(B) Potentially impacted public access areas.
(ii) At a minimum, signs shall include:
(A) The name of the Great Lakes Basin CSO permittee;
(B) A description of the discharge (e.g., untreated human sewage,
treated wastewater) and notice that sewage may be present in the water;
and
(C) The Great Lakes Basin CSO permittee contact information,
including a telephone number, NPDES permit number and CSO discharge
point number as identified in the NPDES permit.
(iii) The Great Lakes Basin CSO permittee shall perform periodic
maintenance of signs to ensure that they are legible, visible and
factually correct.
(iv) Where a permittee has before August 7, 2018 installed a sign at
a CSO discharge point or potentially impacted public access area that is
consistent with State requirements, the sign is not required to meet the
minimum requirements specified in paragraph (a)(1)(ii) of this section
until the sign is replaced.
(2) Notification of local public health department and other
potentially affected public entities. (i) As soon as possible, but no
later than four (4) hours after becoming aware by monitoring, modeling
or other means that a CSO discharge has occurred, the Great Lakes Basin
CSO permittee shall provide initial notice of the CSO discharge to the
local public health department (or if there is no local health
department, to the State health department), any potentially affected
public entities (such as municipalities, public drinking water
utilities, State and county parks and recreation departments), and
Indian Tribes whose waters may be impacted. Such initial notice shall,
at a minimum, include the following information:
[[Page 257]]
(A) The water body that received the discharge(s);
(B) The location of the discharge(s) and identification of the
public access areas potentially impacted by the discharge. Where CSO
discharges from the same system occur at multiple locations during the
same precipitation-related event, the Great Lakes Basin CSO permittee
may provide a description of the area in the waterbody where discharges
are occurring and identification of the public access areas potentially
impacted by the discharge, and the permittee is not required to identify
the specific location of each discharge;
(C) The date(s) and time(s) that the discharge(s) commenced or the
time the permittee became aware of the discharge(s) or when discharges
are expected to occur;
(D) Whether, at the time of the notification, the discharge(s) is
continuing or has ended. If the discharge(s) has ended, the approximate
time that the discharge ended; and
(E) A point of contact for the CSO permittee.
(ii) Within seven (7) days after becoming aware by monitoring,
modeling or other means that the CSO discharge(s) has ended, the Great
Lakes Basin CSO permittee shall provide the following supplemental
information to the public health department and affected public entities
and Indian Tribes receiving the initial notice under paragraph (a)(2)(i)
of this section unless the information had been provided in an earlier
notice:
(A) The measured or estimated volume of the discharge(s). Where CSO
discharges from the same system occur at multiple locations during the
same precipitation-related event, the Great Lakes Basin CSO permittee
may provide an estimate of the cumulative volume discharged to a given
waterbody; and
(B) The approximate time that the discharge(s) ended.
(3) Notification of the public. (i) As soon as possible, but no
later than four (4) hours after becoming aware by monitoring, modeling
or other means that a CSO discharge has occurred, the Great Lakes Basin
CSO permittee shall provide public notification of CSO discharges. The
Great Lakes Basin CSO permittee shall provide public notification of CSO
discharges electronically, such as by text, email, social media alerts
to subscribers or by posting a notice on its public access website, and,
if appropriate, by other means (e.g., newspaper, radio, television). If
a permittee's public notification plan identifies circumstances and
physical action needed to limit the public health impacts of the CSO
discharge by controlling the CSO discharge (including continuing to
implement its existing practice of conducting inspections of CSO
discharge points during the discharge), and all available staff are
required to complete this action, the four-hour notification window will
commence upon completion of that action.
(ii) At a minimum, the notice shall include:
(A) The water body that received the discharge(s);
(B) The location of the discharge(s) and identification of the
public access areas potentially impacted by the discharge. Where CSO
discharges from the same system occur at multiple locations during the
same precipitation-related event, the Great Lakes Basin CSO permittee
may provide a description of the area in the waterbody where discharges
are occurring and identification of the public access areas potentially
impacted by the discharge, and the permittee is not required to identify
the specific location of each discharge;
(C) The date(s) and time(s) that the discharge(s) commenced or the
time the permittee became aware of the discharge(s); and
(D) Whether, at the time of the notification, the discharge(s) is
continuing or has ended. If the discharge(s) has ended, the approximate
time that the discharge(s) ended.
(iii) Within seven (7) days after becoming aware by monitoring,
modeling or other means that the CSO discharge(s) has ended, the Great
Lakes Basin CSO permittee shall update the electronic notice with the
following information unless the information had been provided in an
earlier notice:
(A) The measured or estimated volume of the discharge(s). Where CSO
[[Page 258]]
discharges from the same system occur at multiple locations during the
same precipitation-related event, the Great Lakes Basin CSO permittee
may provide an estimate of the cumulative volume discharged to a given
waterbody; and
(B) The approximate time that the discharge(s) ended, unless this
information was provided in an earlier notice.
(b) Annual notice. Starting in February 7, 2019, by May 1 of each
calendar year (or an alternative date specified by the Director), any
permittees authorized to discharge a CSO to the Great Lakes Basin shall
make available to the public an annual notice describing the CSO
discharges from its discharge point(s) that occurred in the previous
calendar year and shall provide the Director and EPA with notice of how
the annual notice is available. Notice to EPA shall be in the form of an
email to [email protected] containing a link to the annual notice and
the contact information (name, title, phone number, email) of the person
responsible for maintaining the website, or alternative information
about how the annual notice is available if it is not on a website; if
the permittee is emailing the Director with this information, the
permittee may copy EPA on that email to meet this requirement.
Permittees that are owners or operators of a satellite collection system
with one or more CSO discharge points shall provide the annual notice to
the public and a copy of the annual notice to the operator of the POTW
treatment plant providing treatment for its wastewater. For permittees
whose State permitting authority has published or will publish an annual
report containing all of the below minimum information (listed at
paragraphs (b)(1) through (8) of this section) about the Permittee, the
Permittee may choose to make available the State-issued annual report in
order to meet this requirement. If permittees have existing report(s)
that are written annually that collectively contain all of the below
minimum information (listed at paragraphs (b)(1) through (8) of this
section), then the Permittee may choose to make that/those report(s)
publicly available in order to meet this requirement. At a minimum, the
annual notice shall include:
(1) A description of the location and receiving water for each CSO
discharge point, and, if applicable, any treatment provided;
(2) The date, location, approximate duration, measured or estimated
volume, and cause (e.g., rainfall, snowmelt) of each wet weather CSO
discharge that occurred during the past calendar year. Where CSO
discharges from the same system occur at multiple locations during the
same precipitation-related event, the Great Lakes Basin CSO permittee
may provide an estimate of the cumulative volume discharged to a given
waterbody;
(3) The date, location, duration, volume, and cause of each dry
weather CSO discharge that occurred during the past calendar year;
(4) A summary of available monitoring data for CSO discharges from
the past calendar year;
(5) A description of any public access areas potentially impacted by
each CSO discharge;
(6) Representative precipitation data in total inches to the nearest
0.1 inch that resulted in a CSO discharge, if precipitation was the
cause of the discharge identified in (Sec. 122.38(b)(2));
(7) Permittee contact information, if not listed elsewhere on the
website where this annual notice is provided; and
(8) A concise summary of implementation of the nine minimum controls
and the status of implementation of the long-term CSO control plan (or
other plans to reduce or prevent CSO discharges), including:
(i) A description of key milestones remaining to complete
implementation of the plan; and
(ii) A description of the average annual number of CSO discharges
anticipated after implementation of the long-term control plan (or other
plan relevant to reduction of CSO overflows) is completed.
(c) Public notification plan. The Great Lakes Basin CSO permittee
shall develop a public notification plan that describes how the Great
Lakes Basin CSO permittee will ensure that the public receives adequate
notification of CSO occurrences and CSO impacts. The
[[Page 259]]
Great Lakes Basin CSO permittee must provide notice of the availability
of the plan, for instance on the permittee's website (if it has a
website), and periodically provide information on how to view the
notification plan, such as in bill mailings and by other appropriate
means. The Great Lakes Basin CSO permittee must submit its public
notification plan to the Director by August 7, 2018 and as part of a
permit application under Sec. 122.21(j)(8)(iii). The plan must:
(1) Identify the location of signs required under paragraph (a)(1)
of this section and the location of any CSO discharge point where a sign
is not provided. Where a sign has not been provided at a CSO discharge
point, the plan shall explain why a sign at that location is not
feasible or was otherwise determined to not be necessary.
(2) Describe the message used on signs required under paragraph
(a)(1) of this section;
(3) Describe protocols for maintaining signage (e.g., inspections at
set intervals);
(4) Identify (with points of contact) the municipalities, public
drinking water supplies, public parks with water access, Indian
Tribe(s), and describe other sensitive area(s) identified in the
permittee's long-term CSO control plan, that may be impacted by the
permittee's CSO discharges;
(5) Summarize significant comments and recommendations raised by the
local public health department under paragraph (d) of this section;
(6) Identify other affected public entities and Indian Tribes whose
waters may be impacted by a CSO discharge that were contacted under
paragraph (d) of this section and provide a summary of their significant
comments and recommendations;
(7) Describe protocols for the initial and supplemental notice to
public health departments and other public entities;
(8) Describe protocols for the initial and supplemental notice to
the public; this shall include a description of circumstances under
which the initial notification of the public may be delayed beyond four
hours of the permittee becoming aware of the discharge, which shall only
include circumstances where a physical action is needed to limit the
public health impacts of a CSO discharge by controlling the CSO
discharge (including continuing to implement its existing practice of
conducting inspections of CSO discharge points during the discharge),
and all available staff are required to complete this action, and,
therefore, are not available to initiate the initial notification until
this action is complete;
(9) Describe, for each CSO discharge point, how the volume and
duration of CSO discharges shall be either measured or estimated for the
purposes of complying with paragraphs (a)(2)(ii)(A), (a)(3)(iii)(A) and
(b)(2) and (3) of this section. If the Great Lakes Basin CSO permittee
intends to use a model to estimate discharge volumes and durations, the
plan must summarize the model and describe how the model was or will be
calibrated. CSO permittees that are a municipality or sewer district
with a population of 75,000 or more must assess whether re-calibration
of their model is necessary, and recalibrate if necessary, at least once
every 5 years;
(10) Describe protocols for making the annual notice described in
paragraph (b) of this section available to the public and to the
Director; and
(11) Describe significant modifications to the plan that were made
since it was last updated.
(d) Seek input on public notification plan. Prior to submitting the
public notification plan, or resubmitting under Sec. 122.21(j)(8)(iii),
the Great Lakes Basin CSO permittee must:
(1) Seek input from the local public health department (or if there
is no local health department, the State health department), to:
(i) Develop recommended protocols for providing notification of CSO
discharges to the public health department. The protocols will specify
which CSO discharges are subject to notification, the means of
notification, timing of notification and other relevant factors.
(ii) Develop recommendations for providing notice to the general
public of CSO discharges electronically and by other appropriate means.
[[Page 260]]
(iii) Develop recommendations for areas that would be considered
``potentially impacted public access areas'' as referenced in Sec.
122.38(a)(1), (2), and (3).
(2) Seek input from other potentially affected public entities and
Indian Tribes whose waters may be impacted by a CSO discharge.
(3) Consider the recommendations of the public health department and
other potentially affected entities in developing protocols in its
public notification plan for providing notification of CSO discharges to
the public health department and potentially affected public entities
and Indian Tribes.
(e) Extending compliance to avoid undue economic hardship. The
Director may extend the compliance dates in paragraphs (a), (b), and (c)
of this section for individual communities if the Director determines
the community needs additional time to comply in order to avoid undue
economic hardship. Where the Director extends the compliance date of any
of these requirements for a community, the Director shall notify the
Regional Administrator of the extension and the reason for the
extension. The Director shall post on its website a notice that includes
the name of the community and the new compliance date(s). The notice
shall remain on the Director's website until the new compliance date.
[83 FR 730, Jan. 8, 2018]
Subpart C_Permit Conditions
Sec. 122.41 Conditions applicable to all permits (applicable to
State programs, see Sec. 123.25).
The following conditions apply to all NPDES permits. Additional
conditions applicable to NPDES permits are in Sec. 122.42. All
conditions applicable to NPDES permits shall be incorporated into the
permits either expressly or by reference. If incorporated by reference,
a specific citation to these regulations (or the corresponding approved
State regulations) must be given in the permit.
(a) Duty to comply. The permittee must comply with all conditions of
this permit. Any permit noncompliance constitutes a violation of the
Clean Water Act and is grounds for enforcement action; for permit
termination, revocation and reissuance, or modification; or denial of a
permit renewal application.
(1) The permittee shall comply with effluent standards or
prohibitions established under section 307(a) of the Clean Water Act for
toxic pollutants and with standards for sewage sludge use or disposal
established under section 405(d) of the CWA within the time provided in
the regulations that establish these standards or prohibitions or
standards for sewage sludge use or disposal, even if the permit has not
yet been modified to incorporate the requirement.
(2) The Clean Water Act provides that any person who violates
section 301, 302, 306, 307, 308, 318 or 405 of the Act, or any permit
condition or limitation implementing any such sections in a permit
issued under section 402, or any requirement imposed in a pretreatment
program approved under sections 402(a)(3) or 402(b)(8) of the Act, is
subject to a civil penalty not to exceed $25,000 per day for each
violation. The Clean Water Act provides that any person who negligently
violates sections 301, 302, 306, 307, 308, 318, or 405 of the Act, or
any condition or limitation implementing any of such sections in a
permit issued under section 402 of the Act, or any requirement imposed
in a pretreatment program approved under section 402(a)(3) or 402(b)(8)
of the Act, is subject to criminal penalties of $2,500 to $25,000 per
day of violation, or imprisonment of not more than 1 year, or both. In
the case of a second or subsequent conviction for a negligent violation,
a person shall be subject to criminal penalties of not more than $50,000
per day of violation, or by imprisonment of not more than 2 years, or
both. Any person who knowingly violates such sections, or such
conditions or limitations is subject to criminal penalties of $5,000 to
$50,000 per day of violation, or imprisonment for not more than 3 years,
or both. In the case of a second or subsequent conviction for a knowing
violation, a person shall be subject to criminal penalties of not more
than $100,000 per day of violation, or imprisonment of not more than 6
years, or both. Any person who knowingly violates section 301, 302, 303,
306, 307, 308, 318 or 405 of the Act, or any
[[Page 261]]
permit condition or limitation implementing any of such sections in a
permit issued under section 402 of the Act, and who knows at that time
that he thereby places another person in imminent danger of death or
serious bodily injury, shall, upon conviction, be subject to a fine of
not more than $250,000 or imprisonment of not more than 15 years, or
both. In the case of a second or subsequent conviction for a knowing
endangerment violation, a person shall be subject to a fine of not more
than $500,000 or by imprisonment of not more than 30 years, or both. An
organization, as defined in section 309(c)(3)(B)(iii) of the CWA, shall,
upon conviction of violating the imminent danger provision, be subject
to a fine of not more than $1,000,000 and can be fined up to $2,000,000
for second or subsequent convictions.
(3) Any person may be assessed an administrative penalty by the
Administrator for violating section 301, 302, 306, 307, 308, 318 or 405
of this Act, or any permit condition or limitation implementing any of
such sections in a permit issued under section 402 of this Act.
Administrative penalties for Class I violations are not to exceed
$10,000 per violation, with the maximum amount of any Class I penalty
assessed not to exceed $25,000. Penalties for Class II violations are
not to exceed $10,000 per day for each day during which the violation
continues, with the maximum amount of any Class II penalty not to exceed
$125,000.
(b) Duty to reapply. If the permittee wishes to continue an activity
regulated by this permit after the expiration date of this permit, the
permittee must apply for and obtain a new permit.
(c) Need to halt or reduce activity not a defense. It shall not be a
defense for a permittee in an enforcement action that it would have been
necessary to halt or reduce the permitted activity in order to maintain
compliance with the conditions of this permit.
(d) Duty to mitigate. The permittee shall take all reasonable steps
to minimize or prevent any discharge or sludge use or disposal in
violation of this permit which has a reasonable likelihood of adversely
affecting human health or the environment.
(e) Proper operation and maintenance. The permittee shall at all
times properly operate and maintain all facilities and systems of
treatment and control (and related appurtenances) which are installed or
used by the permittee to achieve compliance with the conditions of this
permit. Proper operation and maintenance also includes adequate
laboratory controls and appropriate quality assurance procedures. This
provision requires the operation of back-up or auxiliary facilities or
similar systems which are installed by a permittee only when the
operation is necessary to achieve compliance with the conditions of the
permit.
(f) Permit actions. This permit may be modified, revoked and
reissued, or terminated for cause. The filing of a request by the
permittee for a permit modification, revocation and reissuance, or
termination, or a notification of planned changes or anticipated
noncompliance does not stay any permit condition.
(g) Property rights. This permit does not convey any property rights
of any sort, or any exclusive privilege.
(h) Duty to provide information. The permittee shall furnish to the
Director, within a reasonable time, any information which the Director
may request to determine whether cause exists for modifying, revoking
and reissuing, or terminating this permit or to determine compliance
with this permit. The permittee shall also furnish to the Director upon
request, copies of records required to be kept by this permit.
(i) Inspection and entry. The permittee shall allow the Director, or
an authorized representative (including an authorized contractor acting
as a representative of the Administrator), upon presentation of
credentials and other documents as may be required by law, to:
(1) Enter upon the permittee's premises where a regulated facility
or activity is located or conducted, or where records must be kept under
the conditions of this permit;
(2) Have access to and copy, at reasonable times, any records that
must be kept under the conditions of this permit;
[[Page 262]]
(3) Inspect at reasonable times any facilities, equipment (including
monitoring and control equipment), practices, or operations regulated or
required under this permit; and
(4) Sample or monitor at reasonable times, for the purposes of
assuring permit compliance or as otherwise authorized by the Clean Water
Act, any substances or parameters at any location.
(j) Monitoring and records. (1) Samples and measurements taken for
the purpose of monitoring shall be representative of the monitored
activity.
(2) Except for records of monitoring information required by this
permit related to the permittee's sewage sludge use and disposal
activities, which shall be retained for a period of at least five years
(or longer as required by 40 CFR part 503), the permittee shall retain
records of all monitoring information, including all calibration and
maintenance records and all original strip chart recordings for
continuous monitoring instrumentation, copies of all reports required by
this permit, and records of all data used to complete the application
for this permit, for a period of at least 3 years from the date of the
sample, measurement, report or application. This period may be extended
by request of the Director at any time.
(3) Records of monitoring information shall include:
(i) The date, exact place, and time of sampling or measurements;
(ii) The individual(s) who performed the sampling or measurements;
(iii) The date(s) analyses were performed;
(iv) The individual(s) who performed the analyses;
(v) The analytical techniques or methods used; and
(vi) The results of such analyses.
(4) Monitoring must be conducted according to test procedures
approved under 40 CFR Part 136 unless another method is required under
40 CFR subchapters N or O.
(5) The Clean Water Act provides that any person who falsifies,
tampers with, or knowingly renders inaccurate any monitoring device or
method required to be maintained under this permit shall, upon
conviction, be punished by a fine of not more than $10,000, or by
imprisonment for not more than 2 years, or both. If a conviction of a
person is for a violation committed after a first conviction of such
person under this paragraph, punishment is a fine of not more than
$20,000 per day of violation, or by imprisonment of not more than 4
years, or both.
(k) Signatory requirement. (1) All applications, reports, or
information submitted to the Director shall be signed and certified.
(See Sec. 122.22)
(2) The CWA provides that any person who knowingly makes any false
statement, representation, or certification in any record or other
document submitted or required to be maintained under this permit,
including monitoring reports or reports of compliance or non-compliance
shall, upon conviction, be punished by a fine of not more than $10,000
per violation, or by imprisonment for not more than 6 months per
violation, or by both.
(l) Reporting requirements--(1) Planned changes. The permittee shall
give notice to the Director as soon as possible of any planned physical
alterations or additions to the permitted facility. Notice is required
only when:
(i) The alteration or addition to a permitted facility may meet one
of the criteria for determining whether a facility is a new source in
Sec. 122.29(b); or
(ii) The alteration or addition could significantly change the
nature or increase the quantity of pollutants discharged. This
notification applies to pollutants which are subject neither to effluent
limitations in the permit, nor to notification requirements under Sec.
122.42(a)(1).
(iii) The alteration or addition results in a significant change in
the permittee's sludge use or disposal practices, and such alteration,
addition, or change may justify the application of permit conditions
that are different from or absent in the existing permit, including
notification of additional use or disposal sites not reported during the
permit application process or not reported pursuant to an approved land
application plan;
(2) Anticipated noncompliance. The permittee shall give advance
notice to the Director of any planned changes in the permitted facility
or activity which may result in noncompliance with permit requirements.
[[Page 263]]
(3) Transfers. This permit is not transferable to any person except
after notice to the Director. The Director may require modification or
revocation and reissuance of the permit to change the name of the
permittee and incorporate such other requirements as may be necessary
under the Clean Water Act. (See Sec. 122.61; in some cases,
modification or revocation and reissuance is mandatory.)
(4) Monitoring reports. Monitoring results shall be reported at the
intervals specified elsewhere in this permit.
(i) Monitoring results must be reported on a Discharge Monitoring
Report (DMR) or forms provided or specified by the Director for
reporting results of monitoring of sludge use or disposal practices. As
of December 21, 2016 all reports and forms submitted in compliance with
this section must be submitted electronically by the permittee to the
Director or initial recipient, as defined in 40 CFR 127.2(b), in
compliance with this section and 40 CFR part 3 (including, in all cases,
subpart D to part 3), Sec. 122.22, and 40 CFR part 127. Part 127 is not
intended to undo existing requirements for electronic reporting. Prior
to this date, and independent of part 127, permittees may be required to
report electronically if specified by a particular permit or if required
to do so by state law.
(ii) If the permittee monitors any pollutant more frequently than
required by the permit using test procedures approved under 40 CFR Part
136, or another method required for an industry-specific waste stream
under 40 CFR subchapters N or O, the results of such monitoring shall be
included in the calculation and reporting of the data submitted in the
DMR or sludge reporting form specified by the Director.
(iii) Calculations for all limitations which require averaging of
measurements shall utilize an arithmetic mean unless otherwise specified
by the Director in the permit.
(5) Compliance schedules. Reports of compliance or noncompliance
with, or any progress reports on, interim and final requirements
contained in any compliance schedule of this permit shall be submitted
no later than 14 days following each schedule date.
(6) Twenty-four hour reporting.
(i) The permittee shall report any noncompliance which may endanger
health or the environment. Any information shall be provided orally
within 24 hours from the time the permittee becomes aware of the
circumstances. A report shall also be provided within 5 days of the time
the permittee becomes aware of the circumstances. The report shall
contain a description of the noncompliance and its cause; the period of
noncompliance, including exact dates and times), and if the
noncompliance has not been corrected, the anticipated time it is
expected to continue; and steps taken or planned to reduce, eliminate,
and prevent reoccurrence of the noncompliance. For noncompliance events
related to combined sewer overflows, sanitary sewer overflows, or bypass
events, these reports must include the data described above (with the
exception of time of discovery) as well as the type of event (combined
sewer overflows, sanitary sewer overflows, or bypass events), type of
sewer overflow structure (e.g., manhole, combine sewer overflow
outfall), discharge volumes untreated by the treatment works treating
domestic sewage, types of human health and environmental impacts of the
sewer overflow event, and whether the noncompliance was related to wet
weather. As of December 21, 2020 all reports related to combined sewer
overflows, sanitary sewer overflows, or bypass events submitted in
compliance with this section must be submitted electronically by the
permittee to the Director or initial recipient, as defined in 40 CFR
127.2(b), in compliance with this section and 40 CFR part 3 (including,
in all cases, subpart D to part 3), Sec. 122.22, and 40 CFR part 127.
Part 127 is not intended to undo existing requirements for electronic
reporting. Prior to this date, and independent of part 127, permittees
may be required to electronically submit reports related to combined
sewer overflows, sanitary sewer overflows, or bypass events under this
section by a particular permit or if required to do so by state law. The
Director may also require permittees to electronically submit reports
not related to combined sewer overflows, sanitary sewer overflows, or
bypass events under this section.
[[Page 264]]
(ii) The following shall be included as information which must be
reported within 24 hours under this paragraph.
(A) Any unanticipated bypass which exceeds any effluent limitation
in the permit. (See Sec. 122.41(g).
(B) Any upset which exceeds any effluent limitation in the permit.
(C) Violation of a maximum daily discharge limitation for any of the
pollutants listed by the Director in the permit to be reported within 24
hours. (See Sec. 122.44(g).)
(iii) The Director may waive the written report on a case-by-case
basis for reports under paragraph (l)(6)(ii) of this section if the oral
report has been received within 24 hours.
(7) Other noncompliance. The permittee shall report all instances of
noncompliance not reported under paragraphs (l)(4), (5), and (6) of this
section, at the time monitoring reports are submitted. The reports shall
contain the information listed in paragraph (l)(6). For noncompliance
events related to combined sewer overflows, sanitary sewer overflows, or
bypass events, these reports shall contain the information described in
paragraph (l)(6) and the applicable required data in appendix A to 40
CFR part 127. As of December 21, 2020 all reports related to combined
sewer overflows, sanitary sewer overflows, or bypass events submitted in
compliance with this section must be submitted electronically by the
permittee to the Director or initial recipient, as defined in 40 CFR
127.2(b), in compliance with this section and 40 CFR part 3 (including,
in all cases, subpart D to part 3), Sec. 122.22, and 40 CFR part 127.
Part 127 is not intended to undo existing requirements for electronic
reporting. Prior to this date, and independent of part 127, permittees
may be required to electronically submit reports related to combined
sewer overflows, sanitary sewer overflows, or bypass events under this
section by a particular permit or if required to do so by state law. The
Director may also require permittees to electronically submit reports
not related to combined sewer overflows, sanitary sewer overflows, or
bypass events under this section.
(8) Other information. Where the permittee becomes aware that it
failed to submit any relevant facts in a permit application, or
submitted incorrect information in a permit application or in any report
to the Director, it shall promptly submit such facts or information.
(9) Identification of the initial recipient for NPDES electronic
reporting data. The owner, operator, or the duly authorized
representative of an NPDES-regulated entity is required to
electronically submit the required NPDES information (as specified in
appendix A to 40 CFR part 127) to the appropriate initial recipient, as
determined by EPA, and as defined in Sec. 127.2(b) of this chapter. EPA
will identify and publish the list of initial recipients on its Web site
and in the Federal Register, by state and by NPDES data group [see Sec.
127.2(c) of this chapter]. EPA will update and maintain this listing.
(m) Bypass--(1) Definitions. (i) Bypass means the intentional
diversion of waste streams from any portion of a treatment facility.
(ii) Severe property damage means substantial physical damage to
property, damage to the treatment facilities which causes them to become
inoperable, or substantial and permanent loss of natural resources which
can reasonably be expected to occur in the absence of a bypass. Severe
property damage does not mean economic loss caused by delays in
production.
(2) Bypass not exceeding limitations. The permittee may allow any
bypass to occur which does not cause effluent limitations to be
exceeded, but only if it also is for essential maintenance to assure
efficient operation. These bypasses are not subject to the provisions of
paragraphs (m)(3) and (m)(4) of this section.
(3) Notice--(i) Anticipated bypass. If the permittee knows in
advance of the need for a bypass, it shall submit prior notice, if
possible at least ten days before the date of the bypass. As of December
21, 2020 all notices submitted in compliance with this section must be
submitted electronically by the permittee to the Director or initial
recipient, as defined in 40 CFR 127.2(b), in compliance with this
section and 40 CFR part 3 (including, in all cases, subpart D to part
3), Sec. 122.22, and 40 CFR part 127. Part 127 is not intended to
[[Page 265]]
undo existing requirements for electronic reporting. Prior to this date,
and independent of part 127, permittees may be required to report
electronically if specified by a particular permit or if required to do
so by state law.
(ii) Unanticipated bypass. The permittee shall submit notice of an
unanticipated bypass as required in paragraph (l)(6) of this section
(24-hour notice). As of December 21, 2020 all notices submitted in
compliance with this section must be submitted electronically by the
permittee to the Director or initial recipient, as defined in 40 CFR
127.2(b), in compliance with this section and 40 CFR part 3 (including,
in all cases, subpart D to part 3), Sec. 122.22, and 40 CFR part 127.
Part 127 is not intended to undo existing requirements for electronic
reporting. Prior to this date, and independent of part 127, permittees
may be required to report electronically if specified by a particular
permit or if required to do so by state law.
(4) Prohibition of bypass. (i) Bypass is prohibited, and the
Director may take enforcement action against a permittee for bypass,
unless:
(A) Bypass was unavoidable to prevent loss of life, personal injury,
or severe property damage;
(B) There were no feasible alternatives to the bypass, such as the
use of auxiliary treatment facilities, retention of untreated wastes, or
maintenance during normal periods of equipment downtime. This condition
is not satisfied if adequate back-up equipment should have been
installed in the exercise of reasonable engineering judgment to prevent
a bypass which occurred during normal periods of equipment downtime or
preventive maintenance; and
(C) The permittee submitted notices as required under paragraph
(m)(3) of this section.
(ii) The Director may approve an anticipated bypass, after
considering its adverse effects, if the Director determines that it will
meet the three conditions listed above in paragraph (m)(4)(i) of this
section.
(n) Upset--(1) Definition. Upset means an exceptional incident in
which there is unintentional and temporary noncompliance with technology
based permit effluent limitations because of factors beyond the
reasonable control of the permittee. An upset does not include
noncompliance to the extent caused by operational error, improperly
designed treatment facilities, inadequate treatment facilities, lack of
preventive maintenance, or careless or improper operation.
(2) Effect of an upset. An upset constitutes an affirmative defense
to an action brought for noncompliance with such technology based permit
effluent limitations if the requirements of paragraph (n)(3) of this
section are met. No determination made during administrative review of
claims that noncompliance was caused by upset, and before an action for
noncompliance, is final administrative action subject to judicial
review.
(3) Conditions necessary for a demonstration of upset. A permittee
who wishes to establish the affirmative defense of upset shall
demonstrate, through properly signed, contemporaneous operating logs, or
other relevant evidence that:
(i) An upset occurred and that the permittee can identify the
cause(s) of the upset;
(ii) The permitted facility was at the time being properly operated;
and
(iii) The permittee submitted notice of the upset as required in
paragraph (l)(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; 80 FR 64097, Oct. 22,
2015]
[[Page 266]]
Sec. 122.42 Additional conditions applicable to specified
categories of NPDES permits (applicable to State NPDES programs,
see Sec. 123.25).
The following conditions, in addition to those set forth in Sec.
122.41, apply to all NPDES permits within the categories specified
below:
(a) Existing manufacturing, commercial, mining, and silvicultural
dischargers. In addition to the reporting requirements under Sec.
122.41(1), all existing manufacturing, commercial, mining, and
silvicultural dischargers must notify the Director as soon as they know
or have reason to believe:
(1) That any activity has occurred or will occur which would result
in the discharge, on a routine or frequent basis, of any toxic pollutant
which is not limited in the permit, if that discharge will exceed the
highest of the following ``notification levels'':
(i) One hundred micrograms per liter (100 [micro]g/l);
(ii) Two hundred micrograms per liter (200 [micro]g/l) for acrolein
and acrylonitrile; five hundred micrograms per liter (500 [micro]g/l)
for 2,4-dinitrophenol and for 2-methyl-4,6-dinitrophenol; and one
milligram per liter (1 mg/l) for antimony;
(iii) Five (5) times the maximum concentration value reported for
that pollutant in the permit application in accordance with Sec.
122.21(g)(7); or
(iv) The level established by the Director in accordance with Sec.
122.44(f).
(2) That any activity has occurred or will occur which would result
in any discharge, on a non-routine or infrequent basis, of a toxic
pollutant which is not limited in the permit, if that discharge will
exceed the highest of the following ``notification levels'':
(i) Five hundred micrograms per liter (500 [micro]g/l);
(ii) One milligram per liter (1 mg/l) for antimony;
(iii) Ten (10) times the maximum concentration value reported for
that pollutant in the permit application in accordance with Sec.
122.21(g)(7).
(iv) The level established by the Director in accordance with Sec.
122.44(f).
(b) Publicly owned treatment works. All POTWs must provide adequate
notice to the Director of the following:
(1) Any new introduction of pollutants into the POTW from an
indirect discharger which would be subject to section 301 or 306 of CWA
if it were directly discharging those pollutants; and
(2) Any substantial change in the volume or character of pollutants
being introduced into that POTW by a source introducing pollutants into
the POTW at the time of issuance of the permit.
(3) For purposes of this paragraph, adequate notice shall include
information on (i) the quality and quantity of effluent introduced into
the POTW, and (ii) any anticipated impact of the change on the quantity
or quality of effluent to be discharged from the POTW.
(c) Municipal separate storm sewer systems. The operator of a large
or medium municipal separate storm sewer system or a municipal separate
storm sewer that has been designated by the Director under Sec.
122.26(a)(1)(v) must submit an annual report by the anniversary of the
date of the issuance of the permit for such system. As of December 21,
2020 all reports submitted in compliance with this section must be
submitted electronically by the owner, operator, or the duly authorized
representative of the MS4 to the Director or initial recipient, as
defined in 40 CFR 127.2(b), in compliance with this section and 40 CFR
part 3 (including, in all cases, subpart D to part 3), Sec. 122.22, and
40 CFR part 127. Part 127 is not intended to undo existing requirements
for electronic reporting. Prior to this date, and independent of part
127, the owner, operator, or the duly authorized representative of the
MS4 may be required to report electronically if specified by a
particular permit or if required to do so by state law. The report shall
include:
(1) The status of implementing the components of the storm water
management program that are established as permit conditions;
(2) Proposed changes to the storm water management programs that are
established as permit condition. Such proposed changes shall be
consistent with Sec. 122.26(d)(2)(iii) of this part; and
(3) Revisions, if necessary, to the assessment of controls and the
fiscal
[[Page 267]]
analysis reported in the permit application under Sec. 122.26(d)(2)(iv)
and (d)(2)(v) of this part;
(4) A summary of data, including monitoring data, that is
accumulated throughout the reporting year;
(5) Annual expenditures and budget for year following each annual
report;
(6) A summary describing the number and nature of enforcement
actions, inspections, and public education programs;
(7) Identification of water quality improvements or degradation;
(d) Storm water discharges. The initial permits for discharges
composed entirely of storm water issued pursuant to Sec. 122.26(e)(7)
of this part shall require compliance with the conditions of the permit
as expeditiously as practicable, but in no event later than three years
after the date of issuance of the permit.
(e) Concentrated animal feeding operations (CAFOs). Any permit
issued to a CAFO must include the requirements in paragraphs (e)(1)
through (e)(6) of this section.
(1) Requirement to implement a nutrient management plan. Any permit
issued to a CAFO must include a requirement to implement a nutrient
management plan that, at a minimum, contains best management practices
necessary to meet the requirements of this paragraph and applicable
effluent limitations and standards, including those specified in 40 CFR
part 412. The nutrient management plan must, to the extent applicable:
(i) Ensure adequate storage of manure, litter, and process
wastewater, including procedures to ensure proper operation and
maintenance of the storage facilities;
(ii) Ensure proper management of mortalities (i.e., dead animals) to
ensure that they are not disposed of in a liquid manure, storm water, or
process wastewater storage or treatment system that is not specifically
designed to treat animal mortalities;
(iii) Ensure that clean water is diverted, as appropriate, from the
production area;
(iv) Prevent direct contact of confined animals with waters of the
United States;
(v) Ensure that chemicals and other contaminants handled on-site are
not disposed of in any manure, litter, process wastewater, or storm
water storage or treatment system unless specifically designed to treat
such chemicals and other contaminants;
(vi) Identify appropriate site specific conservation practices to be
implemented, including as appropriate buffers or equivalent practices,
to control runoff of pollutants to waters of the United States;
(vii) Identify protocols for appropriate testing of manure, litter,
process wastewater, and soil;
(viii) Establish protocols to land apply manure, litter or process
wastewater in accordance with site specific nutrient management
practices that ensure appropriate agricultural utilization of the
nutrients in the manure, litter or process wastewater; and
(ix) Identify specific records that will be maintained to document
the implementation and management of the minimum elements described in
paragraphs (e)(1)(i) through (e)(1)(viii) of this section.
(2) Recordkeeping requirements. (i) The permittee must create,
maintain for five years, and make available to the Director, upon
request, the following records:
(A) All applicable records identified pursuant paragraph (e)(1)(ix)
of this section;
(B) In addition, all CAFOs subject to 40 CFR part 412 must comply
with record keeping requirements as specified in Sec. 412.37(b) and (c)
and Sec. 412.47(b) and (c).
(ii) A copy of the CAFO's site-specific nutrient management plan
must be maintained on site and made available to the Director upon
request.
(3) Requirements relating to transfer of manure or process
wastewater to other persons. Prior to transferring manure, litter or
process wastewater to other persons, Large CAFOs must provide the
recipient of the manure, litter or process wastewater with the most
current nutrient analysis. The analysis provided must be consistent with
the requirements of 40 CFR part 412. Large CAFOs must retain for five
years records of the date, recipient name and address, and approximate
amount of
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manure, litter or process wastewater transferred to another person.
(4) Annual reporting requirements for CAFOs. The permittee must
submit an annual report to the Director. As of December 21, 2020 all
annual reports submitted in compliance with this section must be
submitted electronically by the permittee to the Director or initial
recipient, as defined in 40 CFR 127.2(b), in compliance with this
section and 40 CFR part 3 (including, in all cases, subpart D to part
3), Sec. 122.22, and 40 CFR part 127. Part 127 is not intended to undo
existing requirements for electronic reporting. Prior to this date, and
independent of part 127, the permittee may be required to report
electronically if specified by a particular permit or if required to do
so by state law. The annual report must include:
(i) The number and type of animals, whether in open confinement or
housed under roof (beef cattle, broilers, layers, swine weighing 55
pounds or more, swine weighing less than 55 pounds, mature dairy cows,
dairy heifers, veal calves, sheep and lambs, horses, ducks, turkeys,
other);
(ii) Estimated amount of total manure, litter and process wastewater
generated by the CAFO in the previous 12 months (tons/gallons);
(iii) Estimated amount of total manure, litter and process
wastewater transferred to other person by the CAFO in the previous 12
months (tons/gallons);
(iv) Total number of acres for land application covered by the
nutrient management plan developed in accordance with paragraph (e)(1)
of this section;
(v) Total number of acres under control of the CAFO that were used
for land application of manure, litter and process wastewater in the
previous 12 months;
(vi) Summary of all manure, litter and process wastewater discharges
from the production area that have occurred in the previous 12 months,
including, for each discharge, the date of discovery, duration of
discharge, and approximate volume; and
(vii) A statement indicating whether the current version of the
CAFO's nutrient management plan was developed or approved by a certified
nutrient management planner; and
(viii) The actual crop(s) planted and actual yield(s) for each
field, the actual nitrogen and phosphorus content of the manure, litter,
and process wastewater, the results of calculations conducted in
accordance with paragraphs (e)(5)(i)(B) and (e)(5)(ii)(D) of this
section, and the amount of manure, litter, and process wastewater
applied to each field during the previous 12 months; and, for any CAFO
that implements a nutrient management plan that addresses rates of
application in accordance with paragraph (e)(5)(ii) of this section, the
results of any soil testing for nitrogen and phosphorus taken during the
preceding 12 months, the data used in calculations conducted in
accordance with paragraph (e)(5)(ii)(D) of this section, and the amount
of any supplemental fertilizer applied during the previous 12 months.
(5) Terms of the nutrient management plan. Any permit issued to a
CAFO must require compliance with the terms of the CAFO's site-specific
nutrient management plan. The terms of the nutrient management plan are
the information, protocols, best management practices, and other
conditions in the nutrient management plan determined by the Director to
be necessary to meet the requirements of paragraph (e)(1) of this
section. The terms of the nutrient management plan, with respect to
protocols for land application of manure, litter, or process wastewater
required by paragraph (e)(1)(viii) of this section and, as applicable,
40 CFR 412.4(c), must include the fields available for land application;
field-specific rates of application properly developed, as specified in
paragraphs (e)(5)(i) through (ii) of this section, to ensure appropriate
agricultural utilization of the nutrients in the manure, litter, or
process wastewater; and any timing limitations identified in the
nutrient management plan concerning land application on the fields
available for land application. The terms must address rates of
application using one of the following two approaches, unless the
Director specifies that only one of these approaches may be used:
(i) Linear approach. An approach that expresses rates of application
as
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pounds of nitrogen and phosphorus, according to the following
specifications:
(A) The terms include maximum application rates from manure, litter,
and process wastewater for each year of permit coverage, for each crop
identified in the nutrient management plan, in chemical forms determined
to be acceptable to the Director, in pounds per acre, per year, for each
field to be used for land application, and certain factors necessary to
determine such rates. At a minimum, the factors that are terms must
include: The outcome of the field-specific assessment of the potential
for nitrogen and phosphorus transport from each field; the crops to be
planted in each field or any other uses of a field such as pasture or
fallow fields; the realistic yield goal for each crop or use identified
for each field; the nitrogen and phosphorus recommendations from sources
specified by the Director for each crop or use identified for each
field; credits for all nitrogen in the field that will be plant
available; consideration of multi-year phosphorus application; and
accounting for all other additions of plant available nitrogen and
phosphorus to the field. In addition, the terms include the form and
source of manure, litter, and process wastewater to be land-applied; the
timing and method of land application; and the methodology by which the
nutrient management plan accounts for the amount of nitrogen and
phosphorus in the manure, litter, and process wastewater to be applied.
(B) Large CAFOs that use this approach must calculate the maximum
amount of manure, litter, and process wastewater to be land applied at
least once each year using the results of the most recent representative
manure, litter, and process wastewater tests for nitrogen and phosphorus
taken within 12 months of the date of land application; or
(ii) Narrative rate approach. An approach that expresses rates of
application as a narrative rate of application that results in the
amount, in tons or gallons, of manure, litter, and process wastewater to
be land applied, according to the following specifications:
(A) The terms include maximum amounts of nitrogen and phosphorus
derived from all sources of nutrients, for each crop identified in the
nutrient management plan, in chemical forms determined to be acceptable
to the Director, in pounds per acre, for each field, and certain factors
necessary to determine such amounts. At a minimum, the factors that are
terms must include: the outcome of the field-specific assessment of the
potential for nitrogen and phosphorus transport from each field; the
crops to be planted in each field or any other uses such as pasture or
fallow fields (including alternative crops identified in accordance with
paragraph (e)(5)(ii)(B) of this section); the realistic yield goal for
each crop or use identified for each field; and the nitrogen and
phosphorus recommendations from sources specified by the Director for
each crop or use identified for each field. In addition, the terms
include the methodology by which the nutrient management plan accounts
for the following factors when calculating the amounts of manure,
litter, and process wastewater to be land applied: Results of soil tests
conducted in accordance with protocols identified in the nutrient
management plan, as required by paragraph (e)(1)(vii) of this section;
credits for all nitrogen in the field that will be plant available; the
amount of nitrogen and phosphorus in the manure, litter, and process
wastewater to be applied; consideration of multi-year phosphorus
application; accounting for all other additions of plant available
nitrogen and phosphorus to the field; the form and source of manure,
litter, and process wastewater; the timing and method of land
application; and volatilization of nitrogen and mineralization of
organic nitrogen.
(B) The terms of the nutrient management plan include alternative
crops identified in the CAFO's nutrient management plan that are not in
the planned crop rotation. Where a CAFO includes alternative crops in
its nutrient management plan, the crops must be listed by field, in
addition to the crops identified in the planned crop rotation for that
field, and the nutrient management plan must include realistic crop
yield goals and the nitrogen and phosphorus recommendations from sources
specified by the Director for
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each crop. Maximum amounts of nitrogen and phosphorus from all sources
of nutrients and the amounts of manure, litter, and process wastewater
to be applied must be determined in accordance with the methodology
described in paragraph (e)(5)(ii)(A) of this section.
(C) For CAFOs using this approach, the following projections must be
included in the nutrient management plan submitted to the Director, but
are not terms of the nutrient management plan: The CAFO's planned crop
rotations for each field for the period of permit coverage; the
projected amount of manure, litter, or process wastewater to be applied;
projected credits for all nitrogen in the field that will be plant
available; consideration of multi-year phosphorus application;
accounting for all other additions of plant available nitrogen and
phosphorus to the field; and the predicted form, source, and method of
application of manure, litter, and process wastewater for each crop.
Timing of application for each field, insofar as it concerns the
calculation of rates of application, is not a term of the nutrient
management plan.
(D) CAFOs that use this approach must calculate maximum amounts of
manure, litter, and process wastewater to be land applied at least once
each year using the methodology required in paragraph (e)(5)(ii)(A) of
this section before land applying manure, litter, and process wastewater
and must rely on the following data:
(1) A field-specific determination of soil levels of nitrogen and
phosphorus, including, for nitrogen, a concurrent determination of
nitrogen that will be plant available consistent with the methodology
required by paragraph (e)(5)(ii)(A) of this section, and for phosphorus,
the results of the most recent soil test conducted in accordance with
soil testing requirements approved by the Director; and
(2) The results of most recent representative manure, litter, and
process wastewater tests for nitrogen and phosphorus taken within 12
months of the date of land application, in order to determine the amount
of nitrogen and phosphorus in the manure, litter, and process wastewater
to be applied.
(6) Changes to a nutrient management plan. Any permit issued to a
CAFO must require the following procedures to apply when a CAFO owner or
operator makes changes to the CAFO's nutrient management plan previously
submitted to the Director:
(i) The CAFO owner or operator must provide the Director with the
most current version of the CAFO's nutrient management plan and identify
changes from the previous version, except that the results of
calculations made in accordance with the requirements of paragraphs
(e)(5)(i)(B) and (e)(5)(ii)(D) of this section are not subject to the
requirements of paragraph (e)(6) of this section.
(ii) The Director must review the revised nutrient management plan
to ensure that it meets the requirements of this section and applicable
effluent limitations and standards, including those specified in 40 CFR
part 412, and must determine whether the changes to the nutrient
management plan necessitate revision to the terms of the nutrient
management plan incorporated into the permit issued to the CAFO. If
revision to the terms of the nutrient management plan is not necessary,
the Director must notify the CAFO owner or operator and upon such
notification the CAFO may implement the revised nutrient management
plan. If revision to the terms of the nutrient management plan is
necessary, the Director must determine whether such changes are
substantial changes as described in paragraph (e)(6)(iii) of this
section.
(A) If the Director determines that the changes to the terms of the
nutrient management plan are not substantial, the Director must make the
revised nutrient management plan publicly available and include it in
the permit record, revise the terms of the nutrient management plan
incorporated into the permit, and notify the owner or operator and
inform the public of any changes to the terms of the nutrient management
plan that are incorporated into the permit.
(B) If the Director determines that the changes to the terms of the
nutrient management plan are substantial, the Director must notify the
public and
[[Page 271]]
make the proposed changes and the information submitted by the CAFO
owner or operator available for public review and comment. The process
for public comments, hearing requests, and the hearing process if a
hearing is held must follow the procedures applicable to draft permits
set forth in 40 CFR 124.11 through 124.13. The Director may establish,
either by regulation or in the CAFO's permit, an appropriate period of
time for the public to comment and request a hearing on the proposed
changes that differs from the time period specified in 40 CFR 124.10.
The Director must respond to all significant comments received during
the comment period as provided in 40 CFR 124.17, and require the CAFO
owner or operator to further revise the nutrient management plan if
necessary, in order to approve the revision to the terms of the nutrient
management plan incorporated into the CAFO's permit. Once the Director
incorporates the revised terms of the nutrient management plan into the
permit, the Director must notify the owner or operator and inform the
public of the final decision concerning revisions to the terms and
conditions of the permit.
(iii) Substantial changes to the terms of a nutrient management plan
incorporated as terms and conditions of a permit include, but are not
limited to:
(A) Addition of new land application areas not previously included
in the CAFO's nutrient management plan. Except that if the land
application area that is being added to the nutrient management plan is
covered by terms of a nutrient management plan incorporated into an
existing NPDES permit in accordance with the requirements of paragraph
(e)(5) of this section, and the CAFO owner or operator applies manure,
litter, or process wastewater on the newly added land application area
in accordance with the existing field-specific permit terms applicable
to the newly added land application area, such addition of new land
would be a change to the new CAFO owner or operator's nutrient
management plan but not a substantial change for purposes of this
section;
(B) Any changes to the field-specific maximum annual rates for land
application, as set forth in paragraphs (e)(5)(i) of this section, and
to the maximum amounts of nitrogen and phosphorus derived from all
sources for each crop, as set forth in paragraph (e)(5)(ii) of this
section;
(C) Addition of any crop or other uses not included in the terms of
the CAFO's nutrient management plan and corresponding field-specific
rates of application expressed in accordance with paragraph (e)(5) of
this section; and
(D) Changes to site-specific components of the CAFO's nutrient
management plan, where such changes are likely to increase the risk of
nitrogen and phosphorus transport to waters of the U.S.
(iv) For EPA-issued permits only. Upon incorporation of the revised
terms of the nutrient management plan into the permit, 40 CFR 124.19
specifies procedures for appeal of the permit decision. In addition to
the procedures specified at 40 CFR 124.19, a person must have submitted
comments or participated in the public hearing in order to appeal the
permit decision.
(f) Public notification requirements for CSO discharges to the Great
Lakes Basin. Any permit issued authorizing the discharge of a combined
sewer overflow (CSO) to the Great Lakes Basin must:
(1) Require implementation of the public notification requirements
in Sec. 122.38(a);
(2) Specify the information that must be included on discharge point
signage, which, at a minimum, must include those elements in Sec.
122.38(a)(1)(ii);
(3) Specify discharge points and public access areas where signs are
required pursuant to Sec. 122.38(a)(1)(i);
(4) Specify the timing and minimum information required for
providing initial and supplemental notification to:
(i) Local public health department and other potentially affected
entities under Sec. 122.38(a)(2); and
(ii) The public under Sec. 122.38(a)(3).
(5) Specify the location of CSO discharges that must be monitored
for volume and discharge duration and the location of CSO discharges
where CSO volume and duration may be estimated; and
(6) Require submittal of an annual notice in accordance with Sec.
122.38(b);
[[Page 272]]
(7) Specify protocols for making the annual notice under Sec.
122.38(b) available to the public.
[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; 80 FR 64098, Oct. 22,
2015; 83 FR 732, Jan. 8, 2018]
Sec. 122.43 Establishing permit conditions (applicable to State
programs, see Sec. 123.25).
(a) In addition to conditions required in all permits (Sec. Sec.
122.41 and 122.42), the Director shall establish conditions, as required
on a case-by-case basis, to provide for and ensure compliance with all
applicable requirements of CWA and regulations. These shall include
conditions under Sec. Sec. 122.46 (duration of permits), 122.47(a)
(schedules of compliance), 122.48 (monitoring), electronic reporting
requirements of 40 CFR part 3 (Cross-Media Electronic Reporting
Regulation) and 40 CFR part 127 (NPDES Electronic Reporting), and, for
EPA permits only, Sec. Sec. 122.47(b) (alternatives schedule of
compliance) and 122.49 (considerations under Federal law).
(b)(1) For a State issued permit, an applicable requirement is a
State statutory or regulatory requirement which takes effect prior to
final administrative disposition of a permit. For a permit issued by
EPA, an applicable requirement is a statutory or regulatory requirement
(including any interim final regulation) which takes effect prior to the
issuance of the permit. Section 124.14 (reopening of comment period)
provides a means for reopening EPA permit proceedings at the discretion
of the Director where new requirements become effective during the
permitting process and are of sufficient magnitude to make additional
proceedings desirable. For State and EPA administered programs, an
applicable requirement is also any requirement which takes effect prior
to the modification or revocation and reissuance of a permit, to the
extent allowed in Sec. 122.62.
(2) New or reissued permits, and to the extent allowed under Sec.
122.62 modified or revoked and reissued permits, shall incorporate each
of the applicable requirements referenced in Sec. Sec. 122.44 and
122.45.
(c) Incorporation. All permit conditions shall be incorporated
either expressly or by reference. If incorporated by reference, a
specific citation to the applicable regulations or requirements must be
given in the permit.
[48 FR 14153, Apr. 1, 1983, as amended at 65 FR 30908, May 15, 2000; 80
FR 64098, Oct. 22, 2015]
Sec. 122.44 Establishing limitations, standards, and other permit
conditions (applicable to State NPDES programs, see Sec. 123.25).
In addition to the conditions established under Sec. 122.43(a),
each NPDES permit shall include conditions meeting the following
requirements when applicable.
(a)(1) Technology-based effluent limitations and standards based on:
effluent limitations and standards promulgated under section 301 of the
CWA, or new source performance standards promulgated under section 306
of CWA, on case-by-case effluent limitations determined under section
402(a)(1) of CWA, or a combination of the three, in accordance with
Sec. 125.3 of this chapter. For new sources or new dischargers, these
technology based limitations and standards are subject to the provisions
of Sec. 122.29(d) (protection period).
(2) Monitoring waivers for certain guideline-listed pollutants. (i)
The Director may authorize a discharger subject to technology-based
effluent limitations guidelines and standards in an NPDES permit to
forego sampling of a pollutant found at 40 CFR Subchapter N of this
chapter if the discharger has demonstrated through sampling and other
technical factors that the pollutant is not present in the discharge or
is present only at background levels from intake water and without any
increase in the pollutant due to activities of the discharger.
(ii) This waiver is good only for the term of the permit and is not
available during the term of the first permit issued to a discharger.
(iii) Any request for this waiver must be submitted when applying
for a reissued permit or modification of a reissued permit. The request
must demonstrate through sampling or other
[[Page 273]]
technical information, including information generated during an earlier
permit term that the pollutant is not present in the discharge or is
present only at background levels from intake water and without any
increase in the pollutant due to activities of the discharger.
(iv) Any grant of the monitoring waiver must be included in the
permit as an express permit condition and the reasons supporting the
grant must be documented in the permit's fact sheet or statement of
basis.
(v) This provision does not supersede certification processes and
requirements already established in existing effluent limitations
guidelines and standards.
(b)(1) Other effluent limitations and standards under sections 301,
302, 303, 307, 318 and 405 of CWA. If any applicable toxic effluent
standard or prohibition (including any schedule of compliance specified
in such effluent standard or prohibition) is promulgated under section
307(a) of CWA for a toxic pollutant and that standard or prohibition is
more stringent than any limitation on the pollutant in the permit, the
Director shall institute proceedings under these regulations to modify
or revoke and reissue the permit to conform to the toxic effluent
standard or prohibition. See also Sec. 122.41(a).
(2) Standards for sewage sludge use or disposal under section 405(d)
of the CWA unless those standards have been included in a permit issued
under the appropriate provisions of subtitle C of the Solid Waste
Disposal Act, Part C of Safe Drinking Water Act, the Marine Protection,
Research, and Sanctuaries Act of 1972, or the Clean Air Act, or under
State permit programs approved by the Administrator. When there are no
applicable standards for sewage sludge use or disposal, the permit may
include requirements developed on a case-by-case basis to protect public
health and the environment from any adverse effects which may occur from
toxic pollutants in sewage sludge. If any applicable standard for sewage
sludge use or disposal is promulgated under section 405(d) of the CWA
and that standard is more stringent than any limitation on the pollutant
or practice in the permit, the Director may initiate proceedings under
these regulations to modify or revoke and reissue the permit to conform
to the standard for sewage sludge use or disposal.
(3) Requirements applicable to cooling water intake structures under
section 316(b) of the CWA, in accordance with part 125, subparts I, J,
and N of this chapter.
(c) Reopener clause: For any permit issued to a treatment works
treating domestic sewage (including ``sludge-only facilities''), the
Director shall include a reopener clause to incorporate any applicable
standard for sewage sludge use or disposal promulgated under section
405(d) of the CWA. The Director may promptly modify or revoke and
reissue any permit containing the reopener clause required by this
paragraph if the standard for sewage sludge use or disposal is more
stringent than any requirements for sludge use or disposal in the
permit, or controls a pollutant or practice not limited in the permit.
(d) Water quality standards and State requirements: any requirements
in addition to or more stringent than promulgated effluent limitations
guidelines or standards under sections 301, 304, 306, 307, 318 and 405
of CWA necessary to:
(1) Achieve water quality standards established under section 303 of
the CWA, including State narrative criteria for water quality.
(i) Limitations must control all pollutants or pollutant parameters
(either conventional, nonconventional, or toxic pollutants) which the
Director determines are or may be discharged at a level which will
cause, have the reasonable potential to cause, or contribute to an
excursion above any State water quality standard, including State
narrative criteria for water quality.
(ii) When determining whether a discharge causes, has the reasonable
potential to cause, or contributes to an in-stream excursion above a
narrative or numeric criteria within a State water quality standard, the
permitting authority shall use procedures which account for existing
controls on point and nonpoint sources of pollution, the
[[Page 274]]
variability of the pollutant or pollutant parameter in the effluent, the
sensitivity of the species to toxicity testing (when evaluating whole
effluent toxicity), and where appropriate, the dilution of the effluent
in the receiving water.
(iii) When the permitting authority determines, using the procedures
in paragraph (d)(1)(ii) of this section, that a discharge causes, has
the reasonable potential to cause, or contributes to an in-stream
excursion above the allowable ambient concentration of a State numeric
criteria within a State water quality standard for an individual
pollutant, the permit must contain effluent limits for that pollutant.
(iv) When the permitting authority determines, using the procedures
in paragraph (d)(1)(ii) of this section, that a discharge causes, has
the reasonable potential to cause, or contributes to an in-stream
excursion above the numeric criterion for whole effluent toxicity, the
permit must contain effluent limits for whole effluent toxicity.
(v) Except as provided in this subparagraph, when the permitting
authority determines, using the procedures in paragraph (d)(1)(ii) of
this section, toxicity testing data, or other information, that a
discharge causes, has the reasonable potential to cause, or contributes
to an in-stream excursion above a narrative criterion within an
applicable State water quality standard, the permit must contain
effluent limits for whole effluent toxicity. Limits on whole effluent
toxicity are not necessary where the permitting authority demonstrates
in the fact sheet or statement of basis of the NPDES permit, using the
procedures in paragraph (d)(1)(ii) of this section, that chemical-
specific limits for the effluent are sufficient to attain and maintain
applicable numeric and narrative State water quality standards.
(vi) Where a State has not established a water quality criterion for
a specific chemical pollutant that is present in an effluent at a
concentration that causes, has the reasonable potential to cause, or
contributes to an excursion above a narrative criterion within an
applicable State water quality standard, the permitting authority must
establish effluent limits using one or more of the following options:
(A) Establish effluent limits using a calculated numeric water
quality criterion for the pollutant which the permitting authority
demonstrates will attain and maintain applicable narrative water quality
criteria and will fully protect the designated use. Such a criterion may
be derived using a proposed State criterion, or an explicit State policy
or regulation interpreting its narrative water quality criterion,
supplemented with other relevant information which may include: EPA's
Water Quality Standards Handbook, October 1983, risk assessment data,
exposure data, information about the pollutant from the Food and Drug
Administration, and current EPA criteria documents; or
(B) Establish effluent limits on a case-by-case basis, using EPA's
water quality criteria, published under section 304(a) of the CWA,
supplemented where necessary by other relevant information; or
(C) Establish effluent limitations on an indicator parameter for the
pollutant of concern, provided:
(1) The permit identifies which pollutants are intended to be
controlled by the use of the effluent limitation;
(2) The fact sheet required by Sec. 124.56 sets forth the basis for
the limit, including a finding that compliance with the effluent limit
on the indicator parameter will result in controls on the pollutant of
concern which are sufficient to attain and maintain applicable water
quality standards;
(3) The permit requires all effluent and ambient monitoring
necessary to show that during the term of the permit the limit on the
indicator parameter continues to attain and maintain applicable water
quality standards; and
(4) The permit contains a reopener clause allowing the permitting
authority to modify or revoke and reissue the permit if the limits on
the indicator parameter no longer attain and maintain applicable water
quality standards.
(vii) When developing water quality-based effluent limits under this
paragraph the permitting authority shall ensure that:
[[Page 275]]
(A) The level of water quality to be achieved by limits on point
sources established under this paragraph is derived from, and complies
with all applicable water quality standards; and
(B) Effluent limits developed to protect a narrative water quality
criterion, a numeric water quality criterion, or both, are consistent
with the assumptions and requirements of any available wasteload
allocation for the discharge prepared by the State and approved by EPA
pursuant to 40 CFR 130.7.
(2) Attain or maintain a specified water quality through water
quality related effluent limits established under section 302 of CWA;
(3) Conform to the conditions to a State certification under section
401 of the CWA that meets the requirements of Sec. 124.53 when EPA is
the permitting authority. If a State certification is stayed by a court
of competent jurisdiction or an appropriate State board or agency, EPA
shall notify the State that the Agency will deem certification waived
unless a finally effective State certification is received within sixty
days from the date of the notice. If the State does not forward a
finally effective certification within the sixty day period, EPA shall
include conditions in the permit that may be necessary to meet EPA's
obligation under section 301(b)(1)(C) of the CWA;
(4) Conform to applicable water quality requirements under section
401(a)(2) of CWA when the discharge affects a State other than the
certifying State;
(5) Incorporate any more stringent limitations, treatment standards,
or schedule of compliance requirements established under Federal or
State law or regulations in accordance with section 301(b)(1)(C) of CWA;
(6) Ensure consistency with the requirements of a Water Quality
Management plan approved by EPA under section 208(b) of CWA;
(7) Incorporate section 403(c) criteria under part 125, subpart M,
for ocean discharges;
(8) Incorporate alternative effluent limitations or standards where
warranted by ``fundamentally different factors,'' under 40 CFR part 125,
subpart D;
(9) Incorporate any other appropriate requirements, conditions, or
limitations (other than effluent limitations) into a new source permit
to the extent allowed by the National Environmental Policy Act, 42
U.S.C. 4321 et seq. and section 511 of the CWA, when EPA is the permit
issuing authority. (See Sec. 122.29(c)).
(e) Technology-based controls for toxic pollutants. Limitations
established under paragraphs (a), (b), or (d) of this section, to
control pollutants meeting the criteria listed in paragraph (e)(1) of
this section. Limitations will be established in accordance with
paragraph (e)(2) of this section. An explanation of the development of
these limitations shall be included in the fact sheet under Sec.
124.56(b)(1)(i).
(1) Limitations must control all toxic pollutants which the Director
determines (based on information reported in a permit application under
Sec. 122.21(g)(7) or in a notification under Sec. 122.42(a)(1) or on
other information) are or may be discharged at a level greater than the
level which can be achieved by the technology-based treatment
requirements appropriate to the permittee under Sec. 125.3(c) of this
chapter; or
(2) The requirement that the limitations control the pollutants
meeting the criteria of paragraph (e)(1) of this section will be
satisfied by:
(i) Limitations on those pollutants; or
(ii) Limitations on other pollutants which, in the judgment of the
Director, will provide treatment of the pollutants under paragraph
(e)(1) of this section to the levels required by Sec. 125.3(c).
(f) Notification level. A ``notification level'' which exceeds the
notification level of Sec. 122.42(a)(1)(i), (ii) or (iii), upon a
petition from the permittee or on the Director's initiative. This new
notification level may not exceed the level which can be achieved by the
technology-based treatment requirements appropriate to the permittee
under Sec. 125.3(c)
(g) Twenty-four hour reporting. Pollutants for which the permittee
must report violations of maximum daily discharge limitations under
Sec. 122.41(1)(6)(ii)(C) (24-hour reporting) shall be listed in the
permit. This list
[[Page 276]]
shall include any toxic pollutant or hazardous substance, or any
pollutant specifically identified as the method to control a toxic
pollutant or hazardous substance.
(h) Durations for permits, as set forth in Sec. 122.46.
(i) Monitoring requirements. In addition to Sec. 122.48, the
following monitoring requirements:
(1) To assure compliance with permit limitations, requirements to
monitor:
(i) The mass (or other measurement specified in the permit) for each
pollutant limited in the permit;
(ii) The volume of effluent discharged from each outfall;
(iii) Other measurements as appropriate including pollutants in
internal waste streams under Sec. 122.45(i); pollutants in intake water
for net limitations under Sec. 122.45(f); frequency, rate of discharge,
etc., for noncontinuous discharges under Sec. 122.45(e); pollutants
subject to notification requirements under Sec. 122.42(a); and
pollutants in sewage sludge or other monitoring as specified in 40 CFR
part 503; or as determined to be necessary on a case-by-case basis
pursuant to section 405(d)(4) of the CWA.
(iv) According to sufficiently sensitive test procedures (i.e.,
methods) approved under 40 CFR part 136 for the analysis of pollutants
or pollutant parameters or required under 40 CFR chapter I, subchapter N
or O.
(A) For the purposes of this paragraph, a method is ``sufficiently
sensitive'' when:
(1) The method minimum level (ML) is at or below the level of the
effluent limit established in the permit for the measured pollutant or
pollutant parameter; or
(2) The method has the lowest ML of the analytical methods approved
under 40 CFR part 136 or required under 40 CFR chapter I, subchapter N
or O for the measured pollutant or pollutant parameter.
Note to paragraph (i)(1)(iv)(A): Consistent with 40 CFR part 136,
applicants or permittees have the option of providing matrix or sample
specific minimum levels rather than the published levels. Further, where
an applicant or permittee can demonstrate that, despite a good faith
effort to use a method that would otherwise meet the definition of
``sufficiently sensitive'', the analytical results are not consistent
with the QA/QC specifications for that method, then the Director may
determine that the method is not performing adequately and the Director
should select a different method from the remaining EPA-approved methods
that is sufficiently sensitive consistent with 40 CFR
122.44(i)(1)(iv)(A). Where no other EPA-approved methods exist, the
Director should select a method consistent with 40 CFR
122.44(i)(1)(iv)(B).
(B) In the case of pollutants or pollutant parameters for which
there are no approved methods under 40 CFR part 136 or methods are not
otherwise required under 40 CFR chapter I, subchapter N or O, monitoring
shall be conducted according to a test procedure specified in the permit
for such pollutants or pollutant parameters.
(2) Except as provided in paragraphs (i)(4) and (5) of this section,
requirements to report monitoring results shall be established on a
case-by-case basis with a frequency dependent on the nature and effect
of the discharge, but in no case less than once a year. For sewage
sludge use or disposal practices, requirements to monitor and report
results shall be established on a case-by-case basis with a frequency
dependent on the nature and effect of the sewage sludge use or disposal
practice; minimally this shall be as specified in 40 CFR part 503 (where
applicable), but in no case less than once a year. All results must be
electronically reported in compliance with 40 CFR part 3 (including, in
all cases, subpart D to part 3), Sec. 122.22, and 40 CFR part 127.
(3) Requirements to report monitoring results for storm water
discharges associated with industrial activity which are subject to an
effluent limitation guideline shall be established on a case-by-case
basis with a frequency dependent on the nature and effect of the
discharge, but in no case less than once a year.
(4) Requirements to report monitoring results for storm water
discharges associated with industrial activity (other than those
addressed in paragraph (i)(3) of this section) shall be established on a
case-by-case basis with a frequency dependent on the nature and effect
of the discharge. At a minimum, a permit for such a discharge must
require:
[[Page 277]]
(i) The discharger to conduct an annual inspection of the facility
site to identify areas contributing to a storm water discharge
associated with industrial activity and evaluate whether measures to
reduce pollutant loadings identified in a storm water pollution
prevention plan are adequate and properly implemented in accordance with
the terms of the permit or whether additional control measures are
needed;
(ii) The discharger to maintain for a period of three years a record
summarizing the results of the inspection and a certification that the
facility is in compliance with the plan and the permit, and identifying
any incidents of non-compliance;
(iii) Such report and certification be signed in accordance with
Sec. 122.22; and
(iv) Permits for storm water discharges associated with industrial
activity from inactive mining operations may, where annual inspections
are impracticable, require certification once every three years by a
Registered Professional Engineer that the facility is in compliance with
the permit, or alternative requirements.
(5) Permits which do not require the submittal of monitoring result
reports at least annually shall require that the permittee report all
instances of noncompliance not reported under Sec. 122.41(l) (1), (4),
(5), and (6) at least annually.
(j) Pretreatment program for POTWs. Requirements for POTWs to:
(1) Identify, in terms of character and volume of pollutants, any
Significant Industrial Users discharging into the POTW subject to
Pretreatment Standards under section 307(b) of CWA and 40 CFR part 403.
(2)(i) Submit a local program when required by and in accordance
with 40 CFR part 403 to assure compliance with pretreatment standards to
the extent applicable under section 307(b). The local program shall be
incorporated into the permit as described in 40 CFR part 403. The
program must require all indirect dischargers to the POTW to comply with
the reporting requirements of 40 CFR part 403.
(ii) Provide a written technical evaluation of the need to revise
local limits under 40 CFR 403.5(c)(1), following permit issuance or
reissuance.
(3) For POTWs which are ``sludge-only facilities,'' a requirement to
develop a pretreatment program under 40 CFR part 403 when the Director
determines that a pretreatment program is necessary to assure compliance
with Section 405(d) of the CWA.
(k) Best management practices (BMPs) to control or abate the
discharge of pollutants when:
(1) Authorized under section 304(e) of the CWA for the control of
toxic pollutants and hazardous substances from ancillary industrial
activities;
(2) Authorized under section 402(p) of the CWA for the control of
storm water discharges;
(3) Numeric effluent limitations are infeasible; or
(4) The practices are reasonably necessary to achieve effluent
limitations and standards or to carry out the purposes and intent of the
CWA.
Note to Paragraph (k)(4): Additional technical information on BMPs
and the elements of BMPs is contained in the following documents:
Guidance Manual for Developing Best Management Practices (BMPs), October
1993, EPA No. 833/B-93-004, NTIS No. PB 94-178324, ERIC No. W498); Storm
Water Management for Construction Activities: Developing Pollution
Prevention Plans and Best Management Practices, September 1992, EPA No.
832/R-92-005, NTIS No. PB 92-235951, ERIC No. N482); Storm Water
Management for Construction Activities, Developing Pollution Prevention
Plans and Best Management Practices: Summary Guidance, EPA No. 833/R-92-
001, NTIS No. PB 93-223550; ERIC No. W139; Storm Water Management for
Industrial Activities, Developing Pollution Prevention Plans and Best
Management Practices, September 1992; EPA 832/R-92-006, NTIS No. PB 92-
235969, ERIC No. N477; Storm Water Management for Industrial Activities,
Developing Pollution Prevention Plans and Best Management Practices:
Summary Guidance, EPA 833/R-92-002, NTIS No. PB 94-133782; ERIC No.
W492. These and other EPA guidance documents can be obtained through the
National Service Center for Environmental Publications (NSCEP) at http:/
/www.epa.gov/nscep. In addition, States may have BMP guidance documents.
These EPA guidance documents are listed here only for informational
purposes; they are not binding and EPA does not intend that these
guidance documents have any mandatory, regulatory effect by virtue of
their listing in this note.
(l) Reissued permits. (1) Except as provided in paragraph (l)(2) of
this section when a permit is renewed or reissued, interim effluent
limitations, standards
[[Page 278]]
or conditions must be at least as stringent as the final effluent
limitations, standards, or conditions in the previous permit (unless the
circumstances on which the previous permit was based have materially and
substantially changed since the time the permit was issued and would
constitute cause for permit modification or revocation and reissuance
under Sec. 122.62.)
(2) In the case of effluent limitations established on the basis of
Section 402(a)(1)(B) of the CWA, a permit may not be renewed, reissued,
or modified on the basis of effluent guidelines promulgated under
section 304(b) subsequent to the original issuance of such permit, to
contain effluent limitations which are less stringent than the
comparable effluent limitations in the previous permit.
(i) Exceptions--A permit with respect to which paragraph (l)(2) of
this section applies may be renewed, reissued, or modified to contain a
less stringent effluent limitation applicable to a pollutant, if--
(A) Material and substantial alterations or additions to the
permitted facility occurred after permit issuance which justify the
application of a less stringent effluent limitation;
(B)(1) Information is available which was not available at the time
of permit issuance (other than revised regulations, guidance, or test
methods) and which would have justified the application of a less
stringent effluent limitation at the time of permit issuance; or
(2) The Administrator determines that technical mistakes or mistaken
interpretations of law were made in issuing the permit under section
402(a)(1)(b);
(C) A less stringent effluent limitation is necessary because of
events over which the permittee has no control and for which there is no
reasonably available remedy;
(D) The permittee has received a permit modification under section
301(c), 301(g), 301(h), 301(i), 301(k), 301(n), or 316(a); or
(E) The permittee has installed the treatment facilities required to
meet the effluent limitations in the previous permit and has properly
operated and maintained the facilities but has nevertheless been unable
to achieve the previous effluent limitations, in which case the
limitations in the reviewed, reissued, or modified permit may reflect
the level of pollutant control actually achieved (but shall not be less
stringent than required by effluent guidelines in effect at the time of
permit renewal, reissuance, or modification).
(ii) Limitations. In no event may a permit with respect to which
paragraph (l)(2) of this section applies be renewed, reissued, or
modified to contain an effluent limitation which is less stringent than
required by effluent guidelines in effect at the time the permit is
renewed, reissued, or modified. In no event may such a permit to
discharge into waters be renewed, issued, or modified to contain a less
stringent effluent limitation if the implementation of such limitation
would result in a violation of a water quality standard under section
303 applicable to such waters.
(m) Privately owned treatment works. For a privately owned treatment
works, any conditions expressly applicable to any user, as a limited co-
permittee, that may be necessary in the permit issued to the treatment
works to ensure compliance with applicable requirements under this part.
Alternatively, the Director may issue separate permits to the treatment
works and to its users, or may require a separate permit application
from any user. The Director's decision to issue a permit with no
conditions applicable to any user, to impose conditions on one or more
users, to issue separate permits, or to require separate applications,
and the basis for that decision, shall be stated in the fact sheet for
the draft permit for the treatment works.
(n) Grants. Any conditions imposed in grants made by the
Administrator to POTWs under sections 201 and 204 of CWA which are
reasonably necessary for the achievement of effluent limitations under
section 301 of CWA.
(o) Sewage sludge. Requirements under section 405 of CWA governing
the disposal of sewage sludge from publicly owned treatment works or any
other treatment works treating domestic sewage for any use for which
regulations have been established, in accordance with any applicable
regulations.
[[Page 279]]
(p) Coast Guard. When a permit is issued to a facility that may
operate at certain times as a means of transportation over water, a
condition that the discharge shall comply with any applicable
regulations promulgated by the Secretary of the department in which the
Coast Guard is operating, that establish specifications for safe
transportation, handling, carriage, and storage of pollutants.
(q) Navigation. Any conditions that the Secretary of the Army
considers necessary to ensure that navigation and anchorage will not be
substantially impaired, in accordance with Sec. 124.59 of this chapter.
(r) Great Lakes. When a permit is issued to a facility that
discharges into the Great Lakes System (as defined in 40 CFR 132.2),
conditions promulgated by the State, Tribe, or EPA pursuant to 40 CFR
part 132.
(s) Qualifying State, Tribal, or local programs. (1) For storm water
discharges associated with small construction activity identified in
Sec. 122.26(b)(15), the Director may include permit conditions that
incorporate qualifying State, Tribal, or local erosion and sediment
control program requirements by reference. Where a qualifying State,
Tribal, or local program does not include one or more of the elements in
this paragraph (s)(1), then the Director must include those elements as
conditions in the permit. A qualifying State, Tribal, or local erosion
and sediment control program is one that includes:
(i) Requirements for construction site operators to implement
appropriate erosion and sediment control best management practices;
(ii) Requirements for construction site operators to control waste
such as discarded building materials, concrete truck washout, chemicals,
litter, and sanitary waste at the construction site that may cause
adverse impacts to water quality;
(iii) Requirements for construction site operators to develop and
implement a storm water pollution prevention plan. (A storm water
pollution prevention plan includes site descriptions, descriptions of
appropriate control measures, copies of approved State, Tribal or local
requirements, maintenance procedures, inspection procedures, and
identification of non-storm water discharges); and
(iv) Requirements to submit a site plan for review that incorporates
consideration of potential water quality impacts.
(2) For storm water discharges from construction activity identified
in Sec. 122.26(b)(14)(x), the Director may include permit conditions
that incorporate qualifying State, Tribal, or local erosion and sediment
control program requirements by reference. A qualifying State, Tribal or
local erosion and sediment control program is one that includes the
elements listed in paragraph (s)(1) of this section and any additional
requirements necessary to achieve the applicable technology-based
standards of ``best available technology'' and ``best conventional
technology'' based on the best professional judgment of the permit
writer.
[48 FR 14153, Apr. 1, 1983]
Editorial Note: For Federal Register citations affecting Sec.
122.44, see the List of CFR Sections Affected, which appears in the
Finding Aids section of the printed volume and at www.govinfo.gov.
Sec. 122.45 Calculating NPDES permit conditions (applicable to
State NPDES programs, see Sec. 123.25).
(a) Outfalls and discharge points. All permit effluent limitations,
standards and prohibitions shall be established for each outfall or
discharge point of the permitted facility, except as otherwise provided
under Sec. 122.44(k) (BMPs where limitations are infeasible) and
paragraph (i) of this section (limitations on internal waste streams).
(b) Production-based limitations. (1) In the case of POTWs, permit
effluent limitations, standards, or prohibitions shall be calculated
based on design flow.
(2)(i) Except in the case of POTWs or as provided in paragraph
(b)(2)(ii) of this section, calculation of any permit limitations,
standards, or prohibitions which are based on production (or other
measure of operation) shall be based not upon the designed production
capacity but rather upon a reasonable
[[Page 280]]
measure of actual production of the facility. For new sources or new
dischargers, actual production shall be estimated using projected
production. The time period of the measure of production shall
correspond to the time period of the calculated permit limitations; for
example, monthly production shall be used to calculate average monthly
discharge limitations.
(ii)(A)(1) The Director may include a condition establishing
alternate permit limitations, standards, or prohibitions based upon
anticipated increased (not to exceed maximum production capability) or
decreased production levels.
(2) For the automotive manufacturing industry only, the Regional
Administrator shall, and the State Director may establish a condition
under paragraph (b)(2)(ii)(A)(1) of this section if the applicant
satisfactorily demonstrates to the Director at the time the application
is submitted that its actual production, as indicated in paragraph
(b)(2)(i) of this section, is substantially below maximum production
capability and that there is a reasonable potential for an increase
above actual production during the duration of the permit.
(B) If the Director establishes permit conditions under paragraph
(b)(2)(ii)(A) of this section:
(1) The permit shall require the permittee to notify the Director at
least two business days prior to a month in which the permittee expects
to operate at a level higher than the lowest production level identified
in the permit. The notice shall specify the anticipated level and the
period during which the permittee expects to operate at the alternate
level. If the notice covers more than one month, the notice shall
specify the reasons for the anticipated production level increase. New
notice of discharge at alternate levels is required to cover a period or
production level not covered by prior notice or, if during two
consecutive months otherwise covered by a notice, the production level
at the permitted facility does not in fact meet the higher level
designated in the notice.
(2) The permittee shall comply with the limitations, standards, or
prohibitions that correspond to the lowest level of production specified
in the permit, unless the permittee has notified the Director under
paragraph (b)(2)(ii)(B)(1) of this section, in which case the permittee
shall comply with the lower of the actual level of production during
each month or the level specified in the notice.
(3) The permittee shall submit with the DMR the level of production
that actually occurred during each month and the limitations, standards,
or prohibitions applicable to that level of production.
(c) Metals. All permit effluent limitations, standards, or
prohibitions for a metal shall be expressed in terms of ``total
recoverable metal'' as defined in 40 CFR part 136 unless:
(1) An applicable effluent standard or limitation has been
promulgated under the CWA and specifies the limitation for the metal in
the dissolved or valent or total form; or
(2) In establishing permit limitations on a case-by-case basis under
Sec. 125.3, it is necessary to express the limitation on the metal in
the dissolved or valent or total form to carry out the provisions of the
CWA; or
(3) All approved analytical methods for the metal inherently measure
only its dissolved form (e.g., hexavalent chromium).
(d) Continuous discharges. For continuous discharges all permit
effluent limitations, standards, and prohibitions, including those
necessary to achieve water quality standards, shall unless impracticable
be stated as:
(1) Maximum daily and average monthly discharge limitations for all
dischargers other than publicly owned treatment works; and
(2) Average weekly and average monthly discharge limitations for
POTWs.
(e) Non-continuous discharges. Discharges which are not continuous,
as defined in Sec. 122.2, shall be particularly described and limited,
considering the following factors, as appropriate:
(1) Frequency (for example, a batch discharge shall not occur more
than once every 3 weeks);
(2) Total mass (for example, not to exceed 100 kilograms of zinc and
200 kilograms of chromium per batch discharge);
[[Page 281]]
(3) Maximum rate of discharge of pollutants during the discharge
(for example, not to exceed 2 kilograms of zinc per minute); and
(4) Prohibition or limitation of specified pollutants by mass,
concentration, or other appropriate measure (for example, shall not
contain at any time more than 0.1 mg/1 zinc or more than 250 grams (\1/
4\ kilogram) of zinc in any discharge).
(f) Mass limitations. (1) All pollutants limited in permits shall
have limitations, standards or prohibitions expressed in terms of mass
except:
(i) For pH, temperature, radiation, or other pollutants which cannot
appropriately be expressed by mass;
(ii) When applicable standards and limitations are expressed in
terms of other units of measurement; or
(iii) If in establishing permit limitations on a case-by-case basis
under Sec. 125.3, limitations expressed in terms of mass are infeasible
because the mass of the pollutant discharged cannot be related to a
measure of operation (for example, discharges of TSS from certain mining
operations), and permit conditions ensure that dilution will not be used
as a substitute for treatment.
(2) Pollutants limited in terms of mass additionally may be limited
in terms of other units of measurement, and the permit shall require the
permittee to comply with both limitations.
(g) Pollutants in intake water. (1) Upon request of the discharger,
technology-based effluent limitations or standards shall be adjusted to
reflect credit for pollutants in the discharger's intake water if:
(i) The applicable effluent limitations and standards contained in
40 CFR subchapter N specifically provide that they shall be applied on a
net basis; or
(ii) The discharger demonstrates that the control system it proposes
or uses to meet applicable technology-based limitations and standards
would, if properly installed and operated, meet the limitations and
standards in the absence of pollutants in the intake waters.
(2) Credit for generic pollutants such as biochemical oxygen demand
(BOD) or total suspended solids (TSS) should not be granted unless the
permittee demonstrates that the constituents of the generic measure in
the effluent are substantially similar to the constituents of the
generic measure in the intake water or unless appropriate additional
limits are placed on process water pollutants either at the outfall or
elsewhere.
(3) Credit shall be granted only to the extent necessary to meet the
applicable limitation or standard, up to a maximum value equal to the
influent value. Additional monitoring may be necessary to determine
eligibility for credits and compliance with permit limits.
(4) Credit shall be granted only if the discharger demonstrates that
the intake water is drawn from the same body of water into which the
discharge is made. The Director may waive this requirement if he finds
that no environmental degradation will result.
(5) This section does not apply to the discharge of raw water
clarifier sludge generated from the treatment of intake water.
(h) Internal waste streams. (1) When permit effluent limitations or
standards imposed at the point of discharge are impractical or
infeasible, effluent limitations or standards for discharges of
pollutants may be imposed on internal waste streams before mixing with
other waste streams or cooling water streams. In those instances, the
monitoring required by Sec. 122.48 shall also be applied to the
internal waste streams.
(2) Limits on internal waste streams will be imposed only when the
fact sheet under Sec. 124.56 sets forth the exceptional circumstances
which make such limitations necessary, such as when the final discharge
point is inaccessible (for example, under 10 meters of water), the
wastes at the point of discharge are so diluted as to make monitoring
impracticable, or the interferences among pollutants at the point of
discharge would make detection or analysis impracticable.
[[Page 282]]
(i) Disposal of pollutants into wells, into POTWs or by land
application. Permit limitations and standards shall be calculated as
provided in Sec. 122.50.
[48 FR 14153, Apr. 1, 1983, as amended at 49 FR 38049, Sept. 26, 1984;
50 FR 4514, Jan. 31, 1985; 54 FR 258, Jan. 4, 1989; 54 FR 18784, May 2,
1989; 65 FR 30909, May 15, 2000; 84 FR 3338, Feb. 12, 2019]
Sec. 122.46 Duration of permits (applicable to State programs,
see Sec. 123.25).
(a) NPDES permits shall be effective for a fixed term not to exceed
5 years.
(b) Except as provided in Sec. 122.6, the term of a permit shall
not be extended by modification beyond the maximum duration specified in
this section.
(c) The Director may issue any permit for a duration that is less
than the full allowable term under this section.
(d) A permit may be issued to expire on or after the statutory
deadline set forth in section 301(b)(2) (A), (C), and (E), if the permit
includes effluent limitations to meet the requirements of section
301(b)(2) (A), (C), (D), (E) and (F), whether or not applicable effluent
limitations guidelines have been promulgated or approved.
(e) A determination that a particular discharger falls within a
given industrial category for purposes of setting a permit expiration
date under paragraph (d) of this section is not conclusive as to the
discharger's inclusion in that industrial category for any other
purposes, and does not prejudice any rights to challenge or change that
inclusion at the time that a permit based on that determination is
formulated.
[48 FR 14153, Apr. 1, 1983, as amended at 49 FR 31842, Aug. 8, 1984; 50
FR 6940, Feb. 19, 1985; 60 FR 33931, June 29, 1995]
Sec. 122.47 Schedules of compliance.
(a) General (applicable to State programs, see Sec. 123.25). The
permit may, when appropriate, specify a schedule of compliance leading
to compliance with CWA and regulations.
(1) Time for compliance. Any schedules of compliance under this
section shall require compliance as soon as possible, but not later than
the applicable statutory deadline under the CWA.
(2) The first NPDES permit issued to a new source or a new
discharger shall contain a schedule of compliance only when necessary to
allow a reasonable opportunity to attain compliance with requirements
issued or revised after commencement of construction but less than three
years before commencement of the relevant discharge. For recommencing
dischargers, a schedule of compliance shall be available only when
necessary to allow a reasonable opportunity to attain compliance with
requirements issued or revised less than three years before
recommencement of discharge.
(3) Interim dates. Except as provided in paragraph (b)(1)(ii) of
this section, if a permit establishes a schedule of compliance which
exceeds 1 year from the date of permit issuance, the schedule shall set
forth interim requirements and the dates for their achievement.
(i) The time between interim dates shall not exceed 1 year, except
that in the case of a schedule for compliance with standards for sewage
sludge use and disposal, the time between interim dates shall not exceed
six months.
(ii) If the time necessary for completion of any interim requirement
(such as the construction of a control facility) is more than 1 year and
is not readily divisible into stages for completion, the permit shall
specify interim dates for the submission of reports of progress toward
completion of the interim requirements and indicate a projected
completion date.
Note: Examples of interim requirements include: (a) Submit a
complete Step 1 construction grant (for POTWs); (b) let a contract for
construction of required facilities; (c) commence construction of
required facilities; (d) complete construction of required facilities.
(4) Reporting. The permit shall be written to require that no later
than 14 days following each interim date and the final date of
compliance, the permittee shall notify the Director in writing of its
compliance or noncompliance with the interim or final requirements, or
submit progress reports if paragraph (a)(3)(ii) is applicable.
(b) Alternative schedules of compliance. An NPDES permit applicant
or permittee may cease conducting regulated activities (by terminating
of direct discharge for NPDES sources) rather than continuing to operate
and meet permit requirements as follows:
[[Page 283]]
(1) If the permittee decides to cease conducting regulated
activities at a given time within the term of a permit which has already
been issued:
(i) The permit may be modified to contain a new or additional
schedule leading to timely cessation of activities; or
(ii) The permittee shall cease conducting permitted activities
before non-compliance with any interim or final compliance schedule
requirement already specified in the permit.
(2) If the decision to cease conducting regulated activities is made
before issuance of a permit whose term will include the termination
date, the permit shall contain a schedule leading to termination which
will ensure timely compliance with applicable requirements no later than
the statutory deadline.
(3) If the permittee is undecided whether to cease conducting
regulated activities, the Director may issue or modify a permit to
contain two schedules as follows:
(i) Both schedules shall contain an identical interim deadline
requiring a final decision on whether to cease conducting regulated
activities no later than a date which ensures sufficient time to comply
with applicable requirements in a timely manner if the decision is to
continue conducting regulated activities;
(ii) One schedule shall lead to timely compliance with applicable
requirements, no later than the statutory deadline;
(iii) The second schedule shall lead to cessation of regulated
activities by a date which will ensure timely compliance with applicable
requirements no later than the statutory deadline.
(iv) Each permit containing two schedules shall include a
requirement that after the permittee has made a final decision under
paragraph (b)(3)(i) of this section it shall follow the schedule leading
to compliance if the decision is to continue conducting regulated
activities, and follow the schedule leading to termination if the
decision is to cease conducting regulated activities.
(4) The applicant's or permittee's decision to cease conducting
regulated activities shall be evidenced by a firm public commitment
satisfactory to the Director, such as a resolution of the board of
directors of a corporation.
[48 FR 14153, Apr. 1, 1983, as amended at 49 FR 38050, Sept. 26, 1984;
50 FR 6940, Feb. 19, 1985; 54 FR 18784, May 2, 1989; 65 FR 30909, May
15, 2000]
Sec. 122.48 Requirements for recording and reporting of monitoring
results (applicable to State programs, see Sec. 123.25).
All permits shall specify:
(a) Requirements concerning the proper use, maintenance, and
installation, when appropriate, of monitoring equipment or methods
(including biological monitoring methods when appropriate);
(b) Required monitoring including type, intervals, and frequency
sufficient to yield data which are representative of the monitored
activity including, when appropriate, continuous monitoring;
(c) Applicable reporting requirements based upon the impact of the
regulated activity and as specified in 40 CFR part 3 (Cross-Media
Electronic Reporting Regulation), Sec. 122.44, and 40 CFR part 127
(NPDES Electronic Reporting). Reporting shall be no less frequent than
specified in Sec. 122.44. EPA will maintain the start dates for the
electronic reporting of monitoring results for each state on its Web
site.
[48 FR 14153, Apr. 1, 1983; 50 FR 6940, Feb. 19, 1985; 80 FR 64098, Oct.
22, 2015]
Sec. 122.49 Considerations under Federal law.
The following is a list of Federal laws that may apply to the
issuance of permits under these rules. When any of these laws is
applicable, its procedures must be followed. When the applicable law
requires consideration or adoption of particular permit conditions or
requires the denial of a permit, those requirements also must be
followed.
(a) The Wild and Scenic Rivers Act, 16 U.S.C. 1273 et seq. section 7
of the Act prohibits the Regional Administrator from assisting by
license or otherwise the construction of any water resources project
that would have a direct, adverse effect on the values for which a
national wild and scenic river was established.
[[Page 284]]
(b) The National Historic Preservation Act of 1966, 16 U.S.C. 470 et
seq. section 106 of the Act and implementing regulations (36 CFR part
800) require the Regional Administrator, before issuing a license, to
adopt measures when feasible to mitigate potential adverse effects of
the licensed activity and properties listed or eligible for listing in
the National Register of Historic Places. The Act's requirements are to
be implemented in cooperation with State Historic Preservation Officers
and upon notice to, and when appropriate, in consultation with the
Advisory Council on Historic Preservation.
(c) The Endangered Species Act, 16 U.S.C. 1531 et seq. section 7 of
the Act and implementing regulations (50 CFR part 402) require the
Regional Administrator to ensure, in consultation with the Secretary of
the Interior or Commerce, that any action authorized by EPA is not
likely to jeopardize the continued existence of any endangered or
threatened species or adversely affect its critical habitat.
(d) The Coastal Zone Management Act, 16 U.S.C. 1451 et seq. section
307(c) of the Act and implementing regulations (15 CFR part 930)
prohibit EPA from issuing a permit for an activity affecting land or
water use in the coastal zone until the applicant certifies that the
proposed activity complies with the State Coastal Zone Management
program, and the State or its designated agency concurs with the
certification (or the Secretary of Commerce overrides the State's
nonconcurrence).
(e) The Fish and Wildlife Coordination Act, 16 U.S.C. 661 et seq.,
requires that the Regional Administrator, before issuing a permit
proposing or authorizing the impoundment (with certain exemptions),
diversion, or other control or modification of any body of water,
consult with the appropriate State agency exercising jurisdiction over
wildlife resources to conserve those resources.
(f) Executive orders. [Reserved]
(g) The National Environmental Policy Act, 42 U.S.C. 4321 et seq.,
may require preparation of an Environmental Impact Statement and
consideration of EIS-related permit conditions (other than effluent
limitations) as provided in Sec. 122.29(c).
(Clean Water Act (33 U.S.C. 1251 et seq.), Safe Drinking Water Act (42
U.S.C. 300f et seq.), Clean Air Act (42 U.S.C. 7401 et seq.), Resource
Conservation and Recovery Act (42 U.S.C. 6901 et seq.))
[48 FR 14153, Apr. 1, 1983, as amended at 48 FR 39620, Sept. 1, 1983; 49
FR 38050, Sept. 26, 1984]
Sec. 122.50 Disposal of pollutants into wells, into publicly owned
treatment works or by land application (applicable to State NPDES
programs, see Sec. 123.25).
(a) When part of a discharger's process wastewater is not being
discharged into waters of the United States or contiguous zone because
it is disposed into a well, into a POTW, or by land application thereby
reducing the flow or level of pollutants being discharged into waters of
the United States, applicable effluent standards and limitations for the
discharge in an NPDES permit shall be adjusted to reflect the reduced
raw waste resulting from such disposal. Effluent limitations and
standards in the permit shall be calculated by one of the following
methods:
(1) If none of the waste from a particular process is discharged
into waters of the United States, and effluent limitations guidelines
provide separate allocation for wastes from that process, all
allocations for the process shall be eliminated from calculation of
permit effluent limitations or standards.
(2) In all cases other than those described in paragraph (a)(1) of
this section, effluent limitations shall be adjusted by multiplying the
effluent limitation derived by applying effluent limitation guidelines
to the total waste stream by the amount of wastewater flow to be treated
and discharged into waters of the United States, and dividing the result
by the total wastewater flow. Effluent limitations and standards so
calculated may be further adjusted under part 125, subpart D to make
them more or less stringent if discharges to wells, publicly owned
[[Page 285]]
treatment works, or by land application change the character or
treatability of the pollutants being discharged to receiving waters.
This method may be algebraically expressed as:
[GRAPHIC] [TIFF OMITTED] TR23MR95.119
where P is the permit effluent limitation, E is the limitation derived
by applying effluent guidelines to the total wastestream, N is the
wastewater flow to be treated and discharged to waters of the United
States, and T is the total wastewater flow.
(b) Paragraph (a) of this section does not apply to the extent that
promulgated effluent limitations guidelines:
(1) Control concentrations of pollutants discharged but not mass; or
(2) Specify a different specific technique for adjusting effluent
limitations to account for well injection, land application, or disposal
into POTWs.
(c) Paragraph (a) of this section does not alter a discharger's
obligation to meet any more stringent requirements established under
Sec. Sec. 122.41, 122.42, 122.43, and 122.44.
[48 FR 14153, Apr. 1, 1983, as amended at 49 FR 38050, Sept. 26, 1984]
Subpart D_Transfer, Modification, Revocation and Reissuance, and
Termination of Permits
Sec. 122.61 Transfer of permits (applicable to State programs,
see Sec. 123.25).
(a) Transfers by modification. Except as provided in paragraph (b)
of this section, a permit may be transferred by the permittee to a new
owner or operator only if the permit has been modified or revoked and
reissued (under Sec. 122.62(b)(2)), or a minor modification made (under
Sec. 122.63(d)), to identify the new permittee and incorporate such
other requirements as may be necessary under CWA.
(b) Automatic transfers. As an alternative to transfers under
paragraph (a) of this section, any NPDES permit may be automatically
transferred to a new permittee if:
(1) The current permittee notifies the Director at least 30 days in
advance of the proposed transfer date in paragraph (b)(2) of this
section;
(2) The notice includes a written agreement between the existing and
new permittees containing a specific date for transfer of permit
responsibility, coverage, and liability between them; and
(3) The Director does not notify the existing permittee and the
proposed new permittee of his or her intent to modify or revoke and
reissue the permit. A modification under this subparagraph may also be a
minor modification under Sec. 122.63. If this notice is not received,
the transfer is effective on the date specified in the agreement
mentioned in paragraph (b)(2) of this section.
Sec. 122.62 Modification or revocation and reissuance of permits
(applicable to State programs, see Sec. 123.25).
When the Director receives any information (for example, inspects
the facility, receives information submitted by the permittee as
required in the permit (see Sec. 122.41), receives a request for
modification or revocation and reissuance under Sec. 124.5, or conducts
a review of the permit file) he or she may determine whether or not one
or more of the causes listed in paragraphs (a) and (b) of this section
for modification or revocation and reissuance or both exist. If cause
exists, the Director may modify or revoke and reissue the permit
accordingly, subject to the limitations of Sec. 124.5(c), and may
request an updated application if necessary. When a permit is modified,
only the conditions subject to modification are reopened. If a permit is
revoked and reissued, the entire permit is reopened and subject to
revision and the permit is reissued for a new term. See Sec.
124.5(c)(2). If cause does not exist under this section or Sec. 122.63,
the Director shall not modify or revoke and reissue the permit. If a
permit modification satisfies the criteria in Sec. 122.63 for ``minor
modifications'' the permit may be modified without a draft permit or
public review. Otherwise, a draft permit must be prepared and other
procedures in part 124 (or procedures of an approved State program)
followed.
(a) Causes for modification. The following are causes for
modification but
[[Page 286]]
not revocation and reissuance of permits except when the permittee
requests or agrees.
(1) Alterations. There are material and substantial alterations or
additions to the permitted facility or activity (including a change or
changes in the permittee's sludge use or disposal practice) which
occurred after permit issuance which justify the application of permit
conditions that are different or absent in the existing permit.
Note: Certain reconstruction activities may cause the new source
provisions of Sec. 122.29 to be applicable.
(2) Information. The Director has received new information. Permits
may be modified during their terms for this cause only if the
information was not available at the time of permit issuance (other than
revised regulations, guidance, or test methods) and would have justified
the application of different permit conditions at the time of issuance.
For NPDES general permits (Sec. 122.28) this cause includes any
information indicating that cumulative effects on the environment are
unacceptable. For new source or new discharger NPDES permits Sec. Sec.
122.21, 122.29), this cause shall include any significant information
derived from effluent testing required under Sec. 122.21(k)(5)(vi) or
Sec. 122.21(h)(4)(iii) after issuance of the permit.
(3) New regulations. The standards or regulations on which the
permit was based have been changed by promulgation of amended standards
or regulations or by judicial decision after the permit was issued.
Permits may be modified during their terms for this cause only as
follows:
(i) For promulgation of amended standards or regulations, when:
(A) The permit condition requested to be modified was based on a
promulgated effluent limitation guideline, EPA approved or promulgated
water quality standards, or the Secondary Treatment Regulations under
part 133; and
(B) EPA has revised, withdrawn, or modified that portion of the
regulation or effluent limitation guideline on which the permit
condition was based, or has approved a State action with regard to a
water quality standard on which the permit condition was based; and
(C) A permittee requests modification in accordance with Sec. 124.5
within ninety (90) days after Federal Register notice of the action on
which the request is based.
(ii) For judicial decisions, a court of competent jurisdiction has
remanded and stayed EPA promulgated regulations or effluent limitation
guidelines, if the remand and stay concern that portion of the
regulations or guidelines on which the permit condition was based and a
request is filed by the permittee in accordance with Sec. 124.5 within
ninety (90) days of judicial remand.
(iii) For changes based upon modified State certifications of NPDES
permits, see Sec. 124.55(b).
(4) Compliance schedules. The Director determines good cause exists
for modification of a compliance schedule, such as an act of God,
strike, flood, or materials shortage or other events over which the
permittee has little or no control and for which there is no reasonably
available remedy. However, in no case may an NPDES compliance schedule
be modified to extend beyond an applicable CWA statutory deadline. See
also Sec. 122.63(c) (minor modifications) and paragraph (a)(14) of this
section (NPDES innovative technology).
(5) When the permittee has filed a request for a variance under CWA
section 301(c), 301(g), 301(h), 301(i), 301(k), or 316(a) or for
``fundamentally different factors'' within the time specified in Sec.
122.21 or Sec. 125.27(a).
(6) 307(a) toxics. When required to incorporate an applicable 307(a)
toxic effluent standard or prohibition (see Sec. 122.44(b)).
(7) Reopener. When required by the ``reopener'' conditions in a
permit, which are established in the permit under Sec. 122.44(b) (for
CWA toxic effluent limitations and Standards for sewage sludge use or
disposal, see also Sec. 122.44(c)) or 40 CFR 403.18(e) (Pretreatment
program).
(8)(i) Net limits. Upon request of a permittee who qualifies for
effluent limitations on a net basis under Sec. 122.45(g).
(ii) When a discharger is no longer eligible for net limitations, as
provided in Sec. 122.45(g)(1)(ii).
[[Page 287]]
(9) Pretreatment. As necessary under 40 CFR 403.8(e) (compliance
schedule for development of pretreatment program).
(10) Failure to notify. Upon failure of an approved State to notify,
as required by section 402(b)(3), another State whose waters may be
affected by a discharge from the approved State.
(11) Non-limited pollutants. When the level of discharge of any
pollutant which is not limited in the permit exceeds the level which can
be achieved by the technology-based treatment requirements appropriate
to the permittee under Sec. 125.3(c).
(12) Notification levels. To establish a ``notification level'' as
provided in Sec. 122.44(f).
(13) Compliance schedules. To modify a schedule of compliance to
reflect the time lost during construction of an innovative or
alternative facility, in the case of a POTW which has received a grant
under section 202(a)(3) of CWA for 100% of the costs to modify or
replace facilities constructed with a grant for innovative and
alternative wastewater technology under section 202(a)(2). In no case
shall the compliance schedule be modified to extend beyond an applicable
CWA statutory deadline for compliance.
(14) For a small MS4, to include an effluent limitation requiring
implementation of a minimum control measure or measures as specified in
Sec. 122.34(b) when:
(i) The permit does not include such measure(s) based upon the
determination that another entity was responsible for implementation of
the requirement(s); and
(ii) The other entity fails to implement measure(s) that satisfy the
requirement(s).
(15) To correct technical mistakes, such as errors in calculation,
or mistaken interpretations of law made in determining permit
conditions.
(16) When the discharger has installed the treatment technology
considered by the permit writer in setting effluent limitations imposed
under section 402(a)(1) of the CWA and has properly operated and
maintained the facilities but nevertheless has been unable to achieve
those effluent limitations. In this case, the limitations in the
modified permit may reflect the level of pollutant control actually
achieved (but shall not be less stringent than required by a
subsequently promulgated effluent limitations guideline).
(17) Nutrient Management Plans. The incorporation of the terms of a
CAFO's nutrient management plan into the terms and conditions of a
general permit when a CAFO obtains coverage under a general permit in
accordance with Sec. Sec. 122.23(h) and 122.28 is not a cause for
modification pursuant to the requirements of this section.
(18) Land application plans. When required by a permit condition to
incorporate a land application plan for beneficial reuse of sewage
sludge, to revise an existing land application plan, or to add a land
application plan.
(b) Causes for modification or revocation and reissuance. The
following are causes to modify or, alternatively, revoke and reissue a
permit:
(1) Cause exists for termination under Sec. 122.64, and the
Director determines that modification or revocation and reissuance is
appropriate.
(2) The Director has received notification (as required in the
permit, see Sec. 122.41(l)(3)) of a proposed transfer of the permit. A
permit also may be modified to reflect a transfer after the effective
date of an automatic transfer (Sec. 122.61(b)) but will not be revoked
and reissued after the effective date of the transfer except upon the
request of the new permittee.
[48 FR 14153, Apr. 1, 1983, as amended at 49 FR 25981, June 25, 1984; 49
FR 37009, Sept. 29, 1984; 49 FR 38050, Sept. 26, 1984; 50 FR 4514, Jan.
31, 1985; 51 FR 20431, June 4, 1986; 51 FR 26993, July 28, 1986; 54 FR
256, 258, Jan. 4, 1989; 54 FR 18784, May 2, 1989; 60 FR 33931, June 29,
1995; 64 FR 68847, Dec. 8, 1999; 65 FR 30909, May 15, 2000; 70 FR 60191,
Oct. 14, 2005; 73 FR 70485, Nov. 20, 2008]
Sec. 122.63 Minor modifications of permits.
Upon the consent of the permittee, the Director may modify a permit
to make the corrections or allowances for changes in the permitted
activity listed in this section, without following the procedures of
part 124. Any permit modification not processed as a minor modification
under this section must be made for cause and with part 124
[[Page 288]]
draft permit and public notice as required in Sec. 122.62. Minor
modifications may only:
(a) Correct typographical errors;
(b) Require more frequent monitoring or reporting by the permittee;
(c) Change an interim compliance date in a schedule of compliance,
provided the new date is not more than 120 days after the date specified
in the existing permit and does not interfere with attainment of the
final compliance date requirement; or
(d) Allow for a change in ownership or operational control of a
facility where the Director determines that no other change in the
permit is necessary, provided that a written agreement containing a
specific date for transfer of permit responsibility, coverage, and
liability between the current and new permittees has been submitted to
the Director.
(e)(1) Change the construction schedule for a discharger which is a
new source. No such change shall affect a discharger's obligation to
have all pollution control equipment installed and in operation prior to
discharge under Sec. 122.29.
(2) Delete a point source outfall when the discharge from that
outfall is terminated and does not result in discharge of pollutants
from other outfalls except in accordance with permit limits.
(f) Require electronic reporting requirements (to replace paper
reporting requirements) including those specified in 40 CFR part 3
(Cross-Media Electronic Reporting Regulation) and 40 CFR part 127 (NPDES
Electronic Reporting).
(g) Incorporate conditions of a POTW pretreatment program that has
been approved in accordance with the procedures in 40 CFR 403.11 (or a
modification thereto that has been approved in accordance with the
procedures in 40 CFR 403.18) as enforceable conditions of the POTW's
permits.
(h) Incorporate changes to the terms of a CAFO's nutrient management
plan that have been revised in accordance with the requirements of Sec.
122.42(e)(6).
[48 FR 14153, Apr. 1, 1983, as amended at 49 FR 38051, Sept. 26, 1984;
51 FR 20431, June 4, 1986; 53 FR 40616, Oct. 17, 1988; 60 FR 33931, June
29, 1995; 73 FR 70485, Nov. 20, 2008; 80 FR 64099, Oct. 22, 2015]
Sec. 122.64 Termination of permits (applicable to State programs,
see Sec. 123.25).
(a) The following are causes for terminating a permit during its
term, or for denying a permit renewal application:
(1) Noncompliance by the permittee with any condition of the permit;
(2) The permittee's failure in the application or during the permit
issuance process to disclose fully all relevant facts, or the
permittee's misrepresentation of any relevant facts at any time;
(3) A determination that the permitted activity endangers human
health or the environment and can only be regulated to acceptable levels
by permit modification or termination; or
(4) A change in any condition that requires either a temporary or
permanent reduction or elimination of any discharge or sludge use or
disposal practice controlled by the permit (for example, plant closure
or termination of discharge by connection to a POTW).
(b) The Director shall follow the applicable procedures in part 124
or part 22 of this chapter, as appropriate (or State procedures
equivalent to part 124) in terminating any NPDES permit under this
section, except that if the entire discharge is permanently terminated
by elimination of the flow or by connection to a POTW (but not by land
application or disposal into a well), the Director may terminate the
permit by notice to the permittee. Termination by notice shall be
effective 30 days after notice is sent, unless the permittee objects
within that time. If the permittee objects during that period, the
Director shall follow part 124 of this chapter or applicable State
procedures for termination. Expedited permit termination procedures are
not available to permittees that are subject to pending State and/or
Federal enforcement actions including citizen suits brought under State
or Federal
[[Page 289]]
law. If requesting expedited permit termination procedures, a permittee
must certify that it is not subject to any pending State or Federal
enforcement actions including citizen suits brought under State or
Federal law. State-authorized NPDES programs are not required to use
part 22 of this chapter procedures for NPDES permit terminations.
(c) Permittees that wish to terminate their permit must submit a
Notice of Termination (NOT) to their permitting authority. If requesting
expedited permit termination procedures, a permittee must certify in the
NOT that it is not subject to any pending State or Federal enforcement
actions including citizen suits brought under State or Federal law. As
of December 21, 2020 all NOTs submitted in compliance with this section
must be submitted electronically by the permittee to the Director or
initial recipient, as defined in 40 CFR 127.2(b), in compliance with
this section and 40 CFR part 3 (including, in all cases, subpart D),
Sec. 122.22, and 40 CFR part 127. Part 127 is not intended to undo
existing requirements for electronic reporting. Prior to this date, and
independent of part 127, the permittee may be required to report
electronically if specified by a particular permit or if required to do
so by state law.
[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; 80 FR 64099, Oct. 22,
2015]
Sec. Appendix A to Part 122--NPDES Primary Industry Categories
Any permit issued after June 30, 1981 to dischargers in the
following categories shall include effluent limitations and a compliance
schedule to meet the requirements of section 301(b)(2)(A), (C), (D), (E)
and (F) of CWA, whether or not applicable effluent limitations
guidelines have been promulgated. See Sec. Sec. 122.44 and 122.46.
Industry Category
Adhesives and sealants
Aluminum forming
Auto and other laundries
Battery manufacturing
Coal mining
Coil coating
Copper forming
Electrical and electronic components
Electroplating
Explosives manufacturing
Foundries
Gum and wood chemicals
Inorganic chemicals manufacturing
Iron and steel manufacturing
Leather tanning and finishing
Mechanical products manufacturing
Nonferrous metals manufacturing
Ore mining
Organic chemicals manufacturing
Paint and ink formulation
Pesticides
Petroleum refining
Pharmaceutical preparations
Photographic equipment and supplies
Plastics processing
Plastic and synthetic materials manufacturing
Porcelain enameling
Printing and publishing
Pulp and paper mills
Rubber processing
Soap and detergent manufacturing
Steam electric power plants
Textile mills
Timber products processing
Sec. Appendix B to Part 122 [Reserved]
Sec. Appendix C to Part 122--Criteria for Determining a Concentrated
Aquatic Animal Production Facility (Sec. 122.24)
A hatchery, fish farm, or other facility is a concentrated aquatic
animal production facility for purposes of Sec. 122.24 if it contains,
grows, or holds aquatic animals in either of the following categories:
(a) Cold water fish species or other cold water aquatic animals in
ponds, raceways, or other similar structures which discharge at least 30
days per year but does not include:
(1) Facilities which produce less than 9,090 harvest weight
kilograms (approximately 20,000 pounds) of aquatic animals per year; and
(2) Facilities which feed less than 2,272 kilograms (approximately
5,000 pounds) of food during the calendar month of maximum feeding.
(b) Warm water fish species or other warm water aquatic animals in
ponds, raceways, or other similar structures which discharge at least 30
days per year, but does not include:
(1) Closed ponds which discharge only during periods of excess
runoff; or
(2) Facilities which produce less than 45,454 harvest weight
kilograms (approximately 100,000 pounds) of aquatic animals per year.
``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;
[[Page 290]]
e.g., respectively, catfish, sunfish and minnows.
Sec. Appendix D to Part 122--NPDES Permit Application Testing
Requirements (Sec. 122.21)
Table I--Testing Requirements for Organic Toxic Pollutants by Industrial
Category for Existing Dischargers
------------------------------------------------------------------------
GC/MS Fraction \1\
--------------------------------------
Industrial category Base/
Volatile Acid neutral Pesticide
------------------------------------------------------------------------
Adhesives and Sealants........... \2\ \2\ \2\
Aluminum Forming................. \2\ \2\ \2\
Auto and Other Laundries......... \2\ \2\ \2\ \2\
Battery Manufacturing............ \2\ ....... \2\
Coal Mining...................... \2\ \2\ \2\ \2\
Coil Coating..................... \2\ \2\ \2\
Copper Forming................... \2\ \2\ \2\
Electric and Electronic \2\ \2\ \2\ \2\
Components......................
Electroplating................... \2\ \2\ \2\
Explosives Manufacturing......... ........ \2\ \2\
Foundries........................ \2\ \2\ \2\
Gum and Wood Chemicals........... \2\ \2\ \2\ \2\
Inorganic Chemicals Manufacturing \2\ \2\ \2\
Iron and Steel Manufacturing..... \2\ \2\ \2\
Leather Tanning and Finishing.... \2\ \2\ \2\ \2\
Mechanical Products Manufacturing \2\ \2\ \2\
Nonferrous Metals Manufacturing.. \2\ \2\ \2\ \2\
Ore Mining....................... \2\ \2\ \2\ \2\
Organic Chemicals Manufacturing.. \2\ \2\ \2\ \2\
Paint and Ink Formulation........ \2\ \2\ \2\ \2\
Pesticides....................... \2\ \2\ \2\ \2\
Petroleum Refining............... \2\ \2\ \2\ \2\
Pharmaceutical Preparations...... \2\ \2\ \2\
Photographic Equipment and \2\ \2\ \2\ \2\
Supplies........................
Plastic and Synthetic Materials \2\ \2\ \2\ \2\
Manufacturing...................
Plastic Processing............... \2\ ....... .......
Porcelain Enameling.............. \2\ ....... \2\ \2\
Printing and Publishing.......... \2\ \2\ \2\ \2\
Pulp and Paper Mills............. \2\ \2\ \2\ \2\
Rubber Processing................ \2\ \2\ \2\
Soap and Detergent Manufacturing. \2\ \2\ \2\
Steam Electric Power Plants...... \2\ \2\ \2\
Textile Mills.................... \2\ \2\ \2\ \2\
Timber Products Processing....... \2\ \2\ \2\ \2\
------------------------------------------------------------------------
\1\ The toxic pollutants in each fraction are listed in Table II.
\2\ Testing required.
Table II--Organic Toxic Pollutants in Each of Four Fractions in Analysis
by Gas Chromatography/Mass Spectroscopy (GS/MS)
Volatiles
1V acrolein
2V acrylonitrile
3V benzene
5V bromoform
6V carbon tetrachloride
7V chlorobenzene
8V chlorodibromomethane
9V chloroethane
10V 2-chloroethylvinyl ether
11V chloroform
12V dichlorobromomethane
14V 1,1-dichloroethane
15V 1,2-dichloroethane
16V 1,1-dichloroethylene
17V 1,2-dichloropropane
18V 1,3-dichloropropylene
19V ethylbenzene
20V methyl bromide
21V methyl chloride
22V methylene chloride
23V 1,1,2,2-tetrachloroethane
24V tetrachloroethylene
25V toluene
26V 1,2-trans-dichloroethylene
27V 1,1,1-trichloroethane
28V 1,1,2-trichloroethane
29V trichloroethylene
31V vinyl chloride
Acid Compounds
1A 2-chlorophenol
2A 2,4-dichlorophenol
3A 2,4-dimethylphenol
4A 4,6-dinitro-o-cresol
5A 2,4-dinitrophenol
6A 2-nitrophenol
7A 4-nitrophenol
8A p-chloro-m-cresol
9A pentachlorophenol
10A phenol
11A 2,4,6-trichlorophenol
Base/Neutral
1B acenaphthene
2B acenaphthylene
3B anthracene
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
[[Page 291]]
18B chrysene
19B dibenzo(a,h)anthracene
20B 1,2-dichlorobenzene
21B 1,3-dichlorobenzene
22B 1,4-dichlorobenzene
23B 3,3'-dichlorobenzidine
24B diethyl phthalate
25B dimethyl phthalate
26B di-n-butyl phthalate
27B 2,4-dinitrotoluene
28B 2,6-dinitrotoluene
29B di-n-octyl phthalate
30B 1,2-diphenylhydrazine (as azobenzene)
31B fluroranthene
32B fluorene
33B hexachlorobenzene
34B hexachlorobutadiene
35B hexachlorocyclopentadiene
36B hexachloroethane
37B indeno(1,2,3-cd)pyrene
38B isophorone
39B napthalene
40B nitrobenzene
41B N-nitrosodimethylamine
42B N-nitrosodi-n-propylamine
43B N-nitrosodiphenylamine
44B phenanthrene
45B pyrene
46B 1,2,4-trichlorobenzene
Pesticides
1P aldrin
2P alpha-BHC
3P beta-BHC
4P gamma-BHC
5P delta-BHC
6P chlordane
7P 4,4'-DDT
8P 4,4'-DDE
9P 4,4'-DDD
10P dieldrin
11P alpha-endosulfan
12P beta-endosulfan
13P endosulfan sulfate
14P endrin
15P endrin aldehyde
16P heptachlor
17P heptachlor epoxide
18P PCB-1242
19P PCB-1254
20P PCB-1221
21P PCB-1232
22P PCB-1248
23P PCB-1260
24P PCB-1016
25P toxaphene
Table III--Other Toxic Pollutants (Metals and Cyanide) and Total Phenols
Antimony, Total
Arsenic, Total
Beryllium, Total
Cadmium, Total
Chromium, Total
Copper, Total
Lead, Total
Mercury, Total
Nickel, Total
Selenium, Total
Silver, Total
Thallium, Total
Zinc, Total
Cyanide, Total
Phenols, Total
Table IV--Conventional and Nonconventional Pollutants Required To Be
Tested by Existing Dischargers if Expected to be Present
Bromide
Chlorine, Total Residual
Color
Fecal Coliform
Fluoride
Nitrate-Nitrite
Nitrogen, Total Organic
Oil and Grease
Phosphorus, Total
Radioactivity
Sulfate
Sulfide
Sulfite
Surfactants
Aluminum, Total
Barium, Total
Boron, Total
Cobalt, Total
Iron, Total
Magnesium, Total
Molybdenum, Total
Manganese, Total
Tin, Total
Titanium, Total
Table V--Toxic Pollutants and Hazardous Substances Required To Be
Identified by Existing Dischargers if Expected To Be Present
Toxic Pollutants
Asbestos
Hazardous Substances
Acetaldehyde
Allyl alcohol
Allyl chloride
Amyl acetate
Aniline
Benzonitrile
Benzyl chloride
Butyl acetate
Butylamine
Captan
Carbaryl
Carbofuran
Carbon disulfide
Chlorpyrifos
Coumaphos
Cresol
Crotonaldehyde
Cyclohexane
2,4-D (2,4-Dichlorophenoxy acetic acid)
[[Page 292]]
Diazinon
Dicamba
Dichlobenil
Dichlone
2,2-Dichloropropionic acid
Dichlorvos
Diethyl amine
Dimethyl amine
Dintrobenzene
Diquat
Disulfoton
Diuron
Epichlorohydrin
Ethion
Ethylene diamine
Ethylene dibromide
Formaldehyde
Furfural
Guthion
Isoprene
Isopropanolamine Dodecylbenzenesulfonate
Kelthane
Kepone
Malathion
Mercaptodimethur
Methoxychlor
Methyl mercaptan
Methyl methacrylate
Methyl parathion
Mevinphos
Mexacarbate
Monoethyl amine
Monomethyl amine
Naled
Napthenic acid
Nitrotoluene
Parathion
Phenolsulfanate
Phosgene
Propargite
Propylene oxide
Pyrethrins
Quinoline
Resorcinol
Strontium
Strychnine
Styrene
2,4,5-T (2,4,5-Trichlorophenoxy acetic acid)
TDE (Tetrachlorodiphenylethane)
2,4,5-TP [2-(2,4,5-Trichlorophenoxy) propanoic acid]
Trichlorofan
Triethanolamine dodecylbenzenesulfonate
Triethylamine
Trimethylamine
Uranium
Vanadium
Vinyl acetate
Xylene
Xylenol
Zirconium
[Note 1: The Environmental Protection Agency has suspended the
requirements of Sec. 122.21(g)(7)(ii)(A) and Table I of Appendix D as
they apply to certain industrial categories. The suspensions are as
follows:
a. At 46 FR 2046, Jan. 8, 1981, the Environmental Protection Agency
suspended until further notice Sec. 122.21(g)(7)(ii)(A) as it applies
to coal mines.
b. At 46 FR 22585, Apr. 20, 1981, the Environmental Protection
Agency suspended until further notice Sec. 122.21(g)(7)(ii)(A) and the
corresponding portions of Item V-C of the NPDES application Form 2c as
they apply to:
1. Testing and reporting for all four organic fractions in the
Greige Mills Subcategory of the Textile Mills industry (Subpart C--Low
water use processing of 40 CFR part 410), and testing and reporting for
the pesticide fraction in all other subcategories of this industrial
category.
2. Testing and reporting for the volatile, base/neutral and
pesticide fractions in the Base and Precious Metals Subcategory of the
Ore Mining and Dressing industry (subpart B of 40 CFR part 440), and
testing and reporting for all four fractions in all other subcategories
of this industrial category.
3. Testing and reporting for all four GC/MS fractions in the
Porcelain Enameling industry.
c. At 46 FR 35090, July 1, 1981, the Environmental Protection Agency
suspended until further notice Sec. 122.21(g)(7)(ii)(A) and the
corresponding portions of Item V-C of the NPDES application Form 2c as
they apply to:
1. Testing and reporting for the pesticide fraction in the Tall Oil
Rosin Subcategory (subpart D) and Rosin-Based Derivatives Subcategory
(subpart F) of the Gum and Wood Chemicals industry (40 CFR part 454),
and testing and reporting for the pesticide and base/netural fractions
in all other subcategories of this industrial category.
2. Testing and reporting for the pesticide fraction in the Leather
Tanning and Finishing, Paint and Ink Formulation, and Photographic
Supplies industrial categories.
3. Testing and reporting for the acid, base/neutral and pesticide
fractions in the Petroleum Refining industrial category.
4. Testing and reporting for the pesticide fraction in the
Papergrade Sulfite subcategories (subparts J and U) of the Pulp and
Paper industry (40 CFR part 430); testing and reporting for the base/
neutral and pesticide fractions in the following subcategories: Deink
(subpart Q), Dissolving Kraft (subpart F), and Paperboard from Waste
Paper (subpart E); testing and reporting for the volatile, base/neutral
and pesticide fractions in the following subcategories: BCT Bleached
Kraft (subpart H), Semi-Chemical (subparts B and C), and Nonintegrated-
Fine Papers (subpart R); and testing and reporting for the acid, base/
neutral, and pesticide fractions in the following subcategories: Fine
Bleached Kraft (subpart I), Dissolving Sulfite Pulp (subpart K),
Groundwood-Fine Papers (subpart O), Market Bleached Kraft (subpart G),
[[Page 293]]
Tissue from Wastepaper (subpart T), and Nonintegrated-Tissue Papers
(subpart S).
5. Testing and reporting for the base/neutral fraction in the Once-
Through Cooling Water, Fly Ash and Bottom Ash Transport Water process
wastestreams of the Steam Electric Power Plant industrial category.
This revision continues these suspensions.]*
---------------------------------------------------------------------------
* Editorial Note: The words ``This revision'' refer to the document
published at 48 FR 14153, Apr. 1, 1983.
---------------------------------------------------------------------------
For the duration of the suspensions, therefore, Table I effectively
reads:
Table I--Testing Requirements for Organic Toxic Pollutants by Industry
Category
------------------------------------------------------------------------
GC/MS fraction \2\
Industry category -------------------------------------
Volatile Acid Neutral Pesticide
------------------------------------------------------------------------
Adhesives and sealants............ (\1\) (\1\) (\1\)
Aluminum forming.................. (\1\) (\1\) (\1\)
Auto and other laundries.......... (\1\) (\1\) (\1\) (\1\)
Battery manufacturing............. (\1\) ...... (\1\)
Coal mining....................... ........ ...... .......
Coil coating...................... (\1\) (\1\) (\1\)
Copper forming.................... (\1\) (\1\) (\1\)
Electric and electronic compounds. (\1\) (\1\) (\1\) (\1\)
Electroplating.................... (\1\) (\1\) (\1\)
Explosives manufacturing.......... ........ (\1\) (\1\)
Foundries......................... (\1\) (\1\) (\1\)
Gum and wood (all subparts except (\1\) (\1\) .......
D and F).........................
Subpart D--tall oil rosin......... (\1\) (\1\) (\1\)
Subpart F--rosin-based derivatives (\1\) (\1\) (\1\)
Inorganic chemicals manufacturing. (\1\) (\1\) (\1\)
Iron and steel manufacturing...... (\1\) (\1\) (\1\)
Leather tanning and finishing..... (\1\) (\1\) (\1\)
Mechanical products manufacturing. (\1\) (\1\) (\1\)
Nonferrous metals manufacturing... (\1\) (\1\) (\1\) (\1\)
Ore mining (applies to the base ........ (\1\)
and precious metals/Subpart B)...
Organic chemicals manufacturing... (\1\) (\1\) (\1\) (\1\)
Paint and ink formulation......... (\1\) (\1\) (\1\)
Pesticides........................ (\1\) (\1\) (\1\) (\1\)
Petroleum refining................ (\1\)
Pharmaceutical preparations....... (\1\) (\1\) (\1\)
Photographic equipment and (\1\) (\1\) (\1\)
supplies.........................
Plastic and synthetic materials (\1\) (\1\) (\1\) (\1\)
manufacturing....................
Plastic processing................ (\1\)
Porcelain enameling...............
Printing and publishing........... (\1\) (\1\) (\1\) (\1\)
Pulp and paperboard mills--see
footnote \3\.....................
Rubber processing................. (\1\) (\1\) (\1\)
Soap and detergent manufacturing.. (\1\) (\1\) (\1\)
Steam electric power plants....... (\1\) (\1\)
Textile mills (Subpart C--Greige (\1\) (\1\) (\1\)
Mills are exempt from this table)
Timber products processing........ (\1\) (\1\) (\1\) (\1\)
------------------------------------------------------------------------
\1\ Testing required.
\2\ The pollutants in each fraction are listed in Item V-C.
\3\ Pulp and Paperboard Mills:
------------------------------------------------------------------------
GS/MS fractions
------------------------------------
Subpart \3\ Base/
VOA Acid neutral Pesticides
------------------------------------------------------------------------
A.................... \2\ (\1\) \2\ (\1\)
B.................... \2\ (\1\) \2\ \2\
C.................... \2\ (\1\) \2\ \2\
D.................... \2\ (\1\) \2\ \2\
E.................... (\1\) (\1\) \2\ (\1\)
F.................... (\1\) (\1\) \2\ \2\
G.................... (\1\) (\1\) \2\ \2\
H.................... (\1\) (\1\) \2\ \2\
I.................... (\1\) (\1\) \2\ \2\
J.................... (\1\) (\1\) (\1\) \2\
K.................... (\1\) (\1\) \2\ \2\
L.................... (\1\) (\1\) \2\ \2\
M.................... (\1\) (\1\) \2\ \2\
N.................... (\1\) (\1\) \2\ \2\
O.................... (\1\) (\1\) \2\ \2\
P.................... (\1\) (\1\) \2\ \2\
Q.................... (\1\) (\1\) \2\ (\1\)
R.................... \2\ (\1\) \2\ \2\
S.................... (\1\) (\1\) \2\ (\1\)
T.................... (\1\) (\1\) \2\ (\1\)
U.................... (\1\) (\1\) (\1\) \2\
------------------------------------------------------------------------
\1\ Must test.
\2\ Do not test unless ``reason to believe'' it is discharged.
\3\ Subparts are defined in 40 CFR Part 430.
[48 FR 14153, Apr. 1, 1983, as amended at 49 FR 38050, Sept. 26, 1984;
50 FR 6940, Feb. 19, 1985]
[[Page 294]]
Sec. Appendix E to Part 122--Rainfall Zones of the United States
[GRAPHIC] [TIFF OMITTED] TC01MR92.016
Not Shown: Alaska (Zone 7); Hawaii (Zone 7); Northern Mariana
Islands (Zone 7); Guam (Zone 7); American Samoa (Zone 7); Trust
Territory of the Pacific Islands (Zone 7); Puerto Rico (Zone 3) Virgin
Islands (Zone 3).
Source: Methodology for Analysis of Detention Basins for Control of
Urban Runoff Quality, prepared for U.S. Environmental Protection Agency,
Office of Water, Nonpoint Source Division, Washington, DC, 1986.
[55 FR 48073, Nov. 16, 1990]
Sec. Appendix F to Part 122--Incorporated Places With Populations
Greater Than 250,000 According to the 1990 Decennial Census by the
Bureau of the Census
------------------------------------------------------------------------
State Incorporated Place
------------------------------------------------------------------------
Alabama................................... Birmingham.
Arizona................................... Phoenix.
Tucson.
California................................ Long Beach.
Los Angeles.
Oakland.
Sacramento.
San Diego.
San Francisco.
San Jose.
Colorado.................................. Denver.
District of Columbia......................
Florida................................... Jacksonville.
Miami.
Tampa.
Georgia................................... Atlanta.
Illinois.................................. Chicago.
Indiana................................... Indianapolis.
Kansas.................................... Wichita.
Kentucky.................................. Louisville.
Louisiana................................. New Orleans.
Maryland.................................. Baltimore.
Massachusetts............................. Boston.
Michigan.................................. Detroit.
Minnesota................................. Minneapolis.
St. Paul.
Missouri.................................. Kansas City.
St. Louis.
Nebraska.................................. Omaha.
New Jersey................................ Newark.
New Mexico................................ Albuquerque.
New York.................................. Buffalo.
Bronx Borough.
Brooklyn Borough.
Manhattan Borough.
Queens Borough.
Staten Island Borough.
North Carolina............................ Charlotte.
Ohio...................................... Cincinnati.
Cleveland.
Columbus.
Toledo.
Oklahoma.................................. Oklahoma City.
Tulsa.
Oregon.................................... Portland.
Pennsylvania.............................. Philadelphia.
Pittsburgh.
Tennessee................................. Memphis.
Nashville/Davidson.
Texas..................................... Austin.
Dallas.
El Paso.
Fort Worth.
[[Page 295]]
Houston.
San Antonio.
Virginia.................................. Norfolk.
Virginia Beach.
Washington................................ Seattle.
Wisconsin................................. Milwaukee.
------------------------------------------------------------------------
[64 FR 68847, Dec. 8, 1999, as amended at 67 FR 47152, July 17, 2002]
Sec. Appendix G to Part 122--Incorporated Places With Populations
Greater Than 100,000 But Less Than 250,000 According to the 1990
Decennial Census by the Bureau of the Census
------------------------------------------------------------------------
State Incorporated place
------------------------------------------------------------------------
Alabama................................... Huntsville.
Mobile.
Montgomery.
Alaska.................................... Anchorage.
Arizona................................... Mesa.
Tempe.
Arkansas.................................. Little Rock.
California................................ Anaheim.
Bakersfield.
Berkeley.
Chula Vista.
Concord.
El Monte.
Escondido.
Fremont.
Fresno.
Fullerton.
Garden Grove.
Glendale.
Hayward.
Huntington Beach.
Inglewood.
Irvine.
Modesto.
Moreno Valley.
Oceanside.
Ontario.
Orange.
Colorado.................................. Aurora.
Colorado Springs.
Lakewood.
Pueblo.
Connecticut............................... Bridgeport.
Hartford.
New Haven.
Stamford.
Waterbury.
Florida................................... Fort Lauderdale.
Hialeah.
Hollywood.
Orlando.
St. Petersburg.
Tallahassee.
Georgia................................... Columbus.
Macon.
Savannah.
Idaho..................................... Boise City.
Illinois.................................. Peoria.
Rockford.
Indiana................................... Evansville.
Fort Wayne.
Gary.
South Bend.
Iowa...................................... Cedar Rapids.
Davenport.
Des Moines.
Kansas.................................... Kansas City.
Topeka.
Kentucky.................................. Lexington-Fayette.
Louisiana................................. Baton Rouge.
Shreveport.
Massachusetts............................. Springfield.
Worcester.
Michigan.................................. Ann Arbor.
Flint.
Grand Rapids.
Lansing.
Livonia.
Sterling Heights.
Warren.
Mississippi............................... Jackson.
Missouri.................................. Independence.
Springfield.
Nebraska.................................. Lincoln.
Nevada.................................... Las Vegas.
Reno.
New Jersey................................ Elizabeth.
Jersey City.
Paterson.
New York.................................. Albany.
Rochester.
Syracuse.
Yonkers.
North Carolina............................ Durham.
Greensboro.
Raleigh.
Winston-Salem.
Ohio...................................... Akron.
Dayton.
Youngstown.
Oregon.................................... Eugene.
Pennsylvania.............................. Allentown.
Erie.
Rhode Island.............................. Providence.
South Carolina............................ Columbia.
Tennessee................................. Chattanooga.
Knoxville.
Texas..................................... Abilene.
Amarillo.
Arlington.
Beaumont.
Corpus Christi.
Garland.
Irving.
Laredo.
Lubbock.
Mesquite.
Pasadena.
Plano.
Waco.
Utah...................................... Salt Lake City.
Virginia.................................. Alexandria.
Chesapeake.
Hampton.
Newport News.
Portsmouth.
Richmond.
Roanoke.
Washington................................ Spokane.
Tacoma.
Wisconsin................................. Madison.
------------------------------------------------------------------------
[64 FR 68848, Dec. 8, 1999]
[[Page 296]]
Sec. Appendix H to Part 122--Counties With Unincorporated Urbanized
Areas With a Population of 250,000 or More According to the 1990
Decennial Census by the Bureau of the Census
------------------------------------------------------------------------
Unincorporated
State County urbanized
population
------------------------------------------------------------------------
California........................ Los Angeles......... 886,780
Sacramento.......... 594,889
San Diego........... 250,414
Delaware.......................... New Castle.......... 296,996
Florida........................... Dade................ 1,014,504
Georgia........................... DeKalb.............. 448,686
Hawaii............................ Honolulu \1\........ 114,506
Maryland.......................... Anne Arundel........ 344,654
Baltimore........... 627,593
Montgomery.......... 599,028
Prince George's..... 494,369
Texas............................. Harris.............. 729,206
Utah.............................. Salt Lake........... 270,989
Virginia.......................... Fairfax............. 760,730
Washington........................ King................ 520,468
------------------------------------------------------------------------
\1\ County was previously listed in this appendix; however, population
dropped to below 250,000 in the 1990 Census.
[64 FR 68848, Dec. 8, 1999]
Sec. Appendix I to Part 122--Counties With Unincorporated Urbanized
Areas Greater Than 100,000, But Less Than 250,000 According to the 1990
Decennial Census by the Bureau of the Census
------------------------------------------------------------------------
Unincorporated
State County urbanized
population
------------------------------------------------------------------------
Alabama........................... Jefferson........... 78,608
Arizona........................... Pima................ 162,202
California........................ Alameda............. 115,082
Contra Costa........ 131,082
Kern................ 128,503
Orange.............. 223,081
Riverside........... 166,509
San Bernardino...... 162,202
Colorado.......................... Arapahoe............ 103,248
Florida........................... Broward............. 142,329
Escambia............ 167,463
Hillsborough........ 398,593
Lee................. 102,337
Manatee............. 123,828
Orange.............. 378,611
Palm Beach.......... 360,553
Pasco............... 148,907
Pinellas............ 255,772
Polk................ 121,528
Sarasota............ 172,600
Seminole............ 127,873
Georgia........................... Clayton............. 133,237
Cobb................ 322,595
Fulton.............. 127,776
Gwinnett............ 237,305
Richmond............ 126,476
Kentucky.......................... Jefferson........... 239,430
Louisiana......................... East Baton Rouge.... 102,539
Parish.............. 331,307
Jefferson Parish....
Maryland.......................... Howard.............. 157,972
North Carolina.................... Cumberland.......... 146,827
Nevada............................ Clark............... 327,618
Oregon............................ Multnomah \1\....... 52,923
Washington.......... 116,687
South Carolina.................... Greenville.......... 147,464
Richland............ 130,589
Virginia.......................... Arlington........... 170,936
Chesterfield........ 174,488
Henrico............. 201,367
Prince William...... 157,131
Washington........................ Pierce.............. 258,530
Snohomish........... 157,218
------------------------------------------------------------------------
\1\ County was previously listed in this appendix; however, population
dropped to below 100,000 in the 1990 Census.
[64 FR 68849, Dec. 8, 1999]
Sec. Appendix J to Part 122--NPDES Permit Testing Requirements for
Publicly Owned Treatment Works (Sec. 122.21(j))
Table 1A--Effluent Parameters for All POTWS
Biochemical oxygen demand (BOD-5 or CBOD-5)
Fecal coliform
Design Flow Rate
pH
Temperature
Total suspended solids
Table 1--Effluent Parameters for All POTWS With a Flow Equal to or
Greater Than 0.1 MGD
Ammonia (as N)
Chlorine (total residual, TRC)
Dissolved oxygen
Nitrate/Nitrite
Kjeldahl nitrogen
Oil and grease
Phosphorus
Total dissolved solids
Table 2--Effluent Parameters for Selected POTWS
Hardness
Metals (total recoverable), cyanide and total phenols
Antimony
Arsenic
Beryllium
Cadmium
Chromium
Copper
Lead
Mercury
Nickel
Selenium
Silver
Thallium
[[Page 297]]
Zinc
Cyanide
Total phenolic compounds
Volatile organic compounds
Acrolein
Acrylonitrile
Benzene
Bromoform
Carbon tetrachloride
Chlorobenzene
Chlorodibromomethane
Chloroethane
2-chloroethylvinyl ether
Chloroform
Dichlorobromomethane
1,1-dichloroethane
1,2-dichloroethane
Trans-1,2-dichloroethylene
1,1-dichloroethylene
1,2-dichloropropane
1,3-dichloropropylene
Ethylbenzene
Methyl bromide
Methyl chloride
Methylene chloride
1,1,2,2-tetrachloroethane
Tetrachloroethylene
Toluene
1,1,1-trichloroethane
1,1,2-trichloroethane
Trichloroethylene
Vinyl chloride
Acid-extractable compounds
P-chloro-m-creso
2-chlorophenol
2,4-dichlorophenol
2,4-dimethylphenol
4,6-dinitro-o-cresol
2,4-dinitrophenol
2-nitrophenol
4-nitrophenol
Pentachlorophenol
Phenol
2,4,6-trichlorophenol
Base-neutral compounds
Acenaphthene
Acenaphthylene
Anthracene
Benzidine
Benzo(a)anthracene
Benzo(a)pyrene
3,4 benzofluoranthene
Benzo(ghi)perylene
Benzo(k)fluoranthene
Bis (2-chloroethoxy) methane
Bis (2-chloroethyl) ether
Bis (2-chloroisopropyl) ether
Bis (2-ethylhexyl) phthalate
4-bromophenyl phenyl ether
Butyl benzyl phthalate
2-chloronaphthalene
4-chlorophenyl phenyl ether
Chrysene
Di-n-butyl phthalate
Di-n-octyl phthalate
Dibenzo(a,h)anthracene
1,2-dichlorobenzene
1,3-dichlorobenzene
1,4-dichlorobenzene
3,3-dichlorobenzidine
Diethyl phthalate
Dimethyl phthalate
2,4-dinitrotoluene
2,6-dinitrotoluene
1,2-diphenylhydrazine
Fluoranthene
Fluorene
Hexachlorobenzene
Hexachlorobutadiene
Hexachlorocyclo-pentadiene
Hexachloroethane
Indeno(1,2,3-cd)pyrene
Isophorone
Naphthalene
Nitrobenzene
N-nitrosodi-n-propylamine
N-nitrosodimethylamine
N-nitrosodiphenylamine
Phenanthrene
Pyrene
1,2,4,-trichlorobenzene
[65 FR 42469, Aug. 4, 2000]
PART 123_STATE PROGRAM REQUIREMENTS--Table of Contents
Subpart A_General
Sec.
123.1 Purpose and scope.
123.2 Definitions.
123.3 Coordination with other programs.
Subpart B_State Program Submissions
123.21 Elements of a program submission.
123.22 Program description.
123.23 Attorney General's statement.
123.24 Memorandum of Agreement with the Regional Administrator.
123.25 Requirements for permitting.
123.26 Requirements for compliance evaluation programs.
123.27 Requirements for enforcement authority.
123.28 Control of disposal of pollutants into wells.
123.29 Prohibition.
123.30 Judicial review of approval or denial of permits.
123.31 Requirements for eligibility of Indian Tribes.
123.32 Request by an Indian Tribe for a determination of eligibility.
123.33 Procedures for processing an Indian Tribe's application.
123.34 Provisions for Tribal criminal enforcement authority.
123.35 As the NPDES Permitting Authority for regulated small MS4s, what
is my role?
[[Page 298]]
123.36 Establishment of technical standards for concentrated animal
feeding operations.
Subpart C_Transfer of Information and Permit Review
123.41 Sharing of information.
123.42 Receipt and use of Federal information.
123.43 Transmission of information to EPA.
123.44 EPA review of and objections to State permits.
123.45 Noncompliance and program reporting by the Director.
123.46 Individual control strategies.
Subpart D_Program Approval, Revision, and Withdrawal
123.61 Approval process.
123.62 Procedures for revision of State programs.
123.63 Criteria for withdrawal of State programs.
123.64 Procedures for withdrawal of State programs.
Authority: Clean Water Act, 33 U.S.C. 1251 et seq.
Source: 48 FR 14178, Apr. 1, 1983, unless otherwise noted.
Subpart A_General
Sec. 123.1 Purpose and scope.
(a) This part specifies the procedures EPA will follow in approving,
revising, and withdrawing State programs and the requirements State
programs must meet to be approved by the Administrator under sections
318, 402, and 405(a) (National Pollutant Discharge Elimination System--
NPDES) of the CWA. This part also specifies the procedures EPA will
follow in approving, revising, and withdrawing State programs under
section 405(f) (sludge management programs) of the CWA. The requirements
that a State sewage sludge management program must meet for approval by
the Administrator under section 405(f) are set out at 40 CFR part 501.
(b) These regulations are promulgated under the authority of
sections 304(i), 101(e), 405, and 518(e) of the CWA, and implement the
requirements of those sections.
(c) The Administrator will approve State programs which conform to
the applicable requirements of this part. A State NPDES program will not
be approved by the Administrator under section 402 of CWA unless it has
authority to control the discharges specified in sections 318 and 405(a)
of CWA. Permit programs under sections 318 and 405(a) will not be
approved independent of a section 402 program.
(d)(1) Upon approval of a State program, the Administrator shall
suspend the issuance of Federal permits for those activities subject to
the approved State program. After program approval EPA shall retain
jurisdiction over any permits (including general permits) which it has
issued unless arrangements have been made with the State in the
Memorandum of Agreement for the State to assume responsibility for these
permits. Retention of jurisdiction shall include the processing of any
permit appeals, modification requests, or variance requests; the conduct
of inspections, and the receipt and review of self-monitoring reports.
If any permit appeal, modification request or variance request is not
finally resolved when the federally issued permit expires, EPA may, with
the consent of the State, retain jurisdiction until the matter is
resolved.
(2) The procedures outlined in the preceding paragraph (d)(1) of
this section for suspension of permitting authority and transfer of
existing permits will also apply when EPA approves an Indian Tribe's
application to operate a State program and a State was the authorized
permitting authority under Sec. 123.23(b) for activities within the
scope of the newly approved program. The authorized State will retain
jurisdiction over its existing permits as described in paragraph (d)(1)
of this section absent a different arrangement stated in the Memorandum
of Agreement executed between EPA and the Tribe.
(e) Upon submission of a complete program, EPA will conduct a public
hearing, if interest is shown, and determine whether to approve or
disapprove the program taking into consideration the requirements of
this part, the CWA and any comments received.
(f) Any State program approved by the Administrator shall at all
times be conducted in accordance with the requirements of this part.
[[Page 299]]
(g)(1) Except as may be authorized pursuant to paragraph (g)(2) of
this section or excluded by Sec. 122.3, the State program must prohibit
all point source discharges of pollutants, all discharges into
aquaculture projects, and all disposal of sewage sludge which results in
any pollutant from such sludge entering into any waters of the United
States within the State's jurisdiction except as authorized by a permit
in effect under the State program or under section 402 of CWA. NPDES
authority may be shared by two or more State agencies but each agency
must have Statewide jurisdiction over a class of activities or
discharges. When more than one agency is responsible for issuing
permits, each agency must make a submission meeting the requirements of
Sec. 123.21 before EPA will begin formal review.
(2) A State may seek approval of a partial or phased program in
accordance with section 402(n) of the CWA.
(h) In many cases, States (other than Indian Tribes) will lack
authority to regulate activities on Indian lands. This lack of authority
does not impair that State's ability to obtain full program approval in
accordance with this part, i.e., inability of a State to regulate
activities on Indian lands does not constitute a partial program. EPA
will administer the program on Indian lands if a State (or Indian Tribe)
does not seek or have authority to regulate activities on Indian lands.
Note: States are advised to contact the United States Department of
the Interior, Bureau of Indian Affairs, concerning authority over Indian
lands.
(i) Nothing in this part precludes a State from:
(1) Adopting or enforcing requirements which are more stringent or
more extensive than those required under this part;
(2) Operating a program with a greater scope of coverage than that
required under this part. If an approved State program has greater scope
of coverage than required by Federal law the additional coverage is not
part of the Federally approved program.
Note: For example, if a State requires permits for discharges into
publicly owned treatment works, these permits are not NPDES permits.
[48 FR 14178, Apr. 1, 1983, as amended at 54 FR 256, Jan. 4, 1989; 54 FR
18784, May 2, 1989; 58 FR 67981, Dec. 22, 1993; 59 FR 64343, Dec. 14,
1994; 63 FR 45122, Aug. 24, 1998]
Sec. 123.2 Definitions.
The definitions in part 122 apply to all subparts of this part.
[63 FR 45122, Aug. 24, 1998]
Sec. 123.3 Coordination with other programs.
Issuance of State permits under this part may be coordinated with
issuance of RCRA, UIC, NPDES, and 404 permits whether they are
controlled by the State, EPA, or the Corps of Engineers. See Sec.
124.4.
Subpart B_State Program Submissions
Sec. 123.21 Elements of a program submission.
(a) Any State that seeks to administer a program under this part
shall submit to the Administrator at least three copies of a program
submission. The submission shall contain the following:
(1) A letter from the Governor of the State (or in the case of an
Indian Tribe in accordance with Sec. 123.33(b), the Tribal authority
exercising powers substantially similar to those of a State Governor)
requesting program approval;
(2) A complete program description, as required by Sec. 123.22,
describing how the State intends to carry out its responsibilities under
this part;
(3) An Attorney General's statement as required by Sec. 123.23;
(4) A Memorandum of Agreement with the Regional Administrator as
required by Sec. 123.24;
(5) Copies of all applicable State statutes and regulations,
including those governing State administrative procedures;
(b)(1) Within 30 days of receipt by EPA of a State program
submission, EPA will notify the State whether its submission is
complete. If EPA finds that a State's submission is complete, the
statutory review period (i.e., the period of time allotted for formal
EPA review of a proposed State program
[[Page 300]]
under CWA) shall be deemed to have begun on the date of receipt of the
State's submission. If EPA finds that a State's submission is
incomplete, the statutory review period shall not begin until all the
necessary information is received by EPA.
(2) In the case of an Indian Tribe eligible under Sec. 123.33(b),
EPA shall take into consideration the contents of the Tribe's request
submitted under Sec. 123.32, in determining if the program submission
required by Sec. 123.21(a) is complete.
(c) If the State's submission is materially changed during the
statutory review period, the statutory review period shall begin again
upon receipt of the revised submission.
(d) The State and EPA may extend the statutory review period by
agreement.
[48 FR 14178, Apr. 1, 1983; 50 FR 6941, Feb. 19, 1985, as amended at 58
FR 67981, Dec. 22, 1993; 59 FR 64343, Dec. 14, 1994]
Sec. 123.22 Program description.
Any State that seeks to administer a program under this part shall
submit a description of the program it proposes to administer in lieu of
the Federal program under State law or under an interstate compact. The
program description shall include:
(a) A description in narrative form of the scope, structure,
coverage and processes of the State program.
(b) A description (including organization charts) of the
organization and structure of the State agency or agencies which will
have responsibility for administering the program, including the
information listed below. If more than one agency is responsible for
administration of a program, each agency must have statewide
jurisdiction over a class of activities. The responsibilities of each
agency must be delineated, their procedures for coordination set forth,
and an agency may be designated as a ``lead agency'' to facilitate
communications between EPA and the State agencies having program
responsibility. If the State proposes to administer a program of greater
scope of coverage than is required by Federal law, the information
provided under this paragraph shall indicate the resources dedicated to
administering the Federally required portion of the program.
(1) A description of the State agency staff who will carry out the
State program, including the number, occupations, and general duties of
the employees. The State need not submit complete job descriptions for
every employee carrying out the State program.
(2) An itemization of the estimated costs of establishing and
administering the program for the first two years after approval,
including cost of the personnel listed in paragraph (b)(1) of this
section, cost of administrative support, and cost of technical support.
(3) An itemization of the sources and amounts of funding, including
an estimate of Federal grant money, available to the State Director for
the first two years after approval to meet the costs listed in paragraph
(b)(2) of this section, identifying any restrictions or limitations upon
this funding.
(c) A description of applicable State procedures, including
permitting procedures and any State administrative or judicial review
procedures;
(d) Copies of the permit form(s), application form(s), and reporting
form(s) the State intends to employ in its program. Forms used by States
need not be identical to the forms used by EPA but should require the
same basic information, except that State NPDES programs are required to
use standard Discharge Monitoring Reports (DMR). The State need not
provide copies of uniform national forms it intends to use but should
note its intention to use such forms.
Note: States are encouraged to use uniform national forms
established by the Administrator. If uniform national forms are used,
they may be modified to include the State Agency's name, address, logo,
and other similar information, as appropriate, in place of EPA's.
(e) A complete description of the State's compliance tracking and
enforcement program.
(f) In the case of Indian Tribes eligible under Sec. 123.33(b), if
a State has been authorized by EPA to issue permits on the Federal
Indian reservation in accordance with Sec. 123.23(b), a description of
how responsibility for pending permit applications, existing permits,
and supporting files will be transferred from the State to the eligible
Indian
[[Page 301]]
Tribe. To the maximum extent practicable, this should include a
Memorandum of Agreement negotiated between the State and the Indian
Tribe addressing the arrangements for such transfer.
(g) A state, tribe, or territory that newly seeks to implement an
NPDES program after March 21, 2016 must describe whether the state,
tribe, or territory will be the initial recipient of electronic NPDES
information from NPDES-regulated facilities for specific NPDES data
groups (see 40 CFR 127.2(c) and 127.27). In this program description,
the state, tribe, or territory must identify the specific NPDES data
groups for which the state, tribe, or territory will be the initial
recipient of electronic NPDES information from NPDES-regulated
facilities and how the electronic data system of the state, tribe, or
territory will be compliant with 40 CFR part 3 (including, in all cases,
subpart D to part 3), Sec. 123.26, and 40 CFR part 127.
[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; 80 FR 64099, Oct. 22, 2015]
Sec. 123.23 Attorney General's statement.
(a) Any State that seeks to administer a program under this part
shall submit a statement from the State Attorney General (or the
attorney for those State or interstate agencies which have independent
legal counsel) that the laws of the State, or an interstate compact,
provide adequate authority to carry out the program described under
Sec. 123.22 and to meet the requirements of this part. This statement
shall include citations to the specific statutes, administrative
regulations, and, where appropriate, judicial decisions which
demonstrate adequate authority. State statutes and regulations cited by
the State Attorney General or independent legal counsel shall be in the
form of lawfully adopted State statutes and regulations at the time the
statement is signed and shall be fully effective by the time the program
is approved. To qualify as ``independent legal counsel'' the attorney
signing the statement required by this section must have full authority
to independently represent the State agency in court on all matters
pertaining to the State program.
Note: EPA will supply States with an Attorney General's statement
format on request.
(b) If a State (which is not an Indian Tribe) seeks authority over
activities on Indian lands, the statement shall contain an appropriate
analysis of the State's authority.
(c) The Attorney General's statement shall certify that the State
has adequate legal authority to issue and enforce general permits if the
State seeks to implement the general permit program under Sec. 122.28.
[48 FR 14178, Apr. 1, 1983, as amended at 58 FR 67981, Dec. 22, 1993]
Sec. 123.24 Memorandum of Agreement with the Regional Administrator.
(a) Any State that seeks to administer a program under this part
shall submit a Memorandum of Agreement. The Memorandum of Agreement
shall be executed by the State Director and the Regional Administrator
and shall become effective when approved by the Administrator. In
addition to meeting the requirements of paragraph (b) of this section,
the Memorandum of Agreement may include other terms, conditions, or
agreements consistent with this part and relevant to the administration
and enforcement of the State's regulatory program. The Administrator
shall not approve any Memorandum of Agreement which contains provisions
which restrict EPA's statutory oversight responsibility.
(b) The Memorandum of Agreement shall include the following:
(1)(i) Provisions for the prompt transfer from EPA to the State of
pending permit applications and any other information relevant to
program operation not already in the possession of the State Director
(e.g., support files for permit issuance, compliance reports, etc.). If
existing permits are transferred from EPA to the State for
administration, the Memorandum of Agreement shall contain provisions
specifying a procedure for transferring the administration of these
permits. If a State lacks the authority to directly administer permits
issued by the Federal government, a procedure may be
[[Page 302]]
established to transfer responsibility for these permits.
Note: For example, EPA and the State and the permittee could agree
that the State would issue a permit(s) identical to the outstanding
Federal permit which would simultaneously be terminated.
(ii) Where a State has been authorized by EPA to issue permits in
accordance with Sec. 123.23(b) on the Federal Indian reservation of the
Indian Tribe seeking program approval, provisions describing how the
transfer of pending permit applications, permits, and any other
information relevant to the program operation not already in the
possession of the Indian Tribe (support files for permit issuance,
compliance reports, etc.) will be accomplished.
(2) Provisions specifying classes and categories of permit
applications, draft permits, and proposed permits that the State will
send to the Regional Administrator for review, comment and, where
applicable, objection.
(3) Provisions specifying the frequency and content of reports,
documents and other information which the State is required to submit to
EPA. The State shall allow EPA to routinely review State records,
reports, and files relevant to the administration and enforcement of the
approved program. State reports may be combined with grant reports where
appropriate. These procedures must also implement the requirements of 40
CFR 123.41(a) and 123.43 and 40 CFR part 127 (including the required
data elements in appendix A to part 127).
(4) Provisions on the State's compliance monitoring and enforcement
program, including:
(i) Provisions for coordination of compliance monitoring activities
by the State and by EPA. These may specify the basis on which the
Regional Administrator will select facilities or activities within the
State for EPA inspection. The Regional Administrator will normally
notify the State at least 7 days before any such inspection; and
(ii) Procedures to assure coordination of enforcement activities.
(5) When appropriate, provisions for joint processing of permits by
the State and EPA for facilities or activities which require permits
from both EPA and the State under different programs. (See Sec. 124.4.)
Note: To promote efficiency and to avoid duplication and
inconsistency, States are encouraged to enter into joint processing
agreements with EPA for permit issuance. Likewise, States are encouraged
(but not required) to consider steps to coordinate or consolidate their
own permit programs and activities.
(6) Provisions for modification of the Memorandum of Agreement in
accordance with this part.
(c) The Memorandum of Agreement, the annual program grant and the
State/EPA Agreement should be consistent. If the State/EPA Agreement
indicates that a change is needed in the Memorandum of Agreement, the
Memorandum of Agreement may be amended through the procedures set forth
in this part. The State/EPA Agreement may not override the Memorandum of
Agreement.
Note: Detailed program priorities and specific arrangements for EPA
support of the State program will change and are therefore more
appropriately negotiated in the context of annual agreements rather than
in the MOA. However, it may still be appropriate to specify in the MOA
the basis for such detailed agreements, e.g., a provision in the MOA
specifying that EPA will select facilities in the State for inspection
annually as part of the State/EPA agreement.
(d) The Memorandum of Agreement shall also specify the extent to
which EPA will waive its right to review, object to, or comment upon
State-issued permits under section 402(d)(3), (e) or (f) of CWA. While
the Regional Administrator and the State may agree to waive EPA review
of certain ``classes or categories'' of permits, no waiver of review may
be granted for the following classes or categories:
(1) Discharges into the territorial sea;
(2) Discharges which may affect the waters of a State other than the
one in which the discharge originates;
(3) Discharges proposed to be regulated by general permits (see
Sec. 122.28);
(4) Discharges from publicly owned treatment works with a daily
average discharge exceeding 1 million gallons per day;
(5) Discharges of uncontaminated cooling water with a daily average
discharge exceeding 500 million gallons per day;
(6) Discharges from any major discharger or from any discharger
within
[[Page 303]]
any of the 21 industrial categories listed in appendix A to part 122;
(7) Discharges from other sources with a daily average discharge
exceeding 0.5 (one-half) million gallons per day, except that EPA review
of permits for discharges of non-process wastewater may be waived
regardless of flow.
(e) Whenever a waiver is granted under paragraph (d) of this
section, the Memorandum of Agreement shall contain:
(1) A statement that the Regional Administrator retains the right to
terminate the waiver as to future permit actions, in whole or in part,
at any time by sending the State Director written notice of termination;
and
(2) A statement that the State shall supply EPA with copies of final
permits.
[48 FR 14178, Apr. 1, 1983; 50 FR 6941, Feb. 19, 1985, as amended at 54
FR 18784, May 2, 1989; 58 FR 67981, Dec. 22, 1993; 63 FR 45122, Aug. 24,
1998; 80 FR 64099, Oct. 22, 2015]
Sec. 123.25 Requirements for permitting.
(a) All State Programs under this part must have legal authority to
implement each of the following provisions and must be administered in
conformance with each, except that States are not precluded from
omitting or modifying any provisions to impose more stringent
requirements:
(1) Sec. 122.4--(Prohibitions):
(2) Sec. 122.5(a) and (b)--(Effect of permit);
(3) Sec. 122.7(b) and (c)--(Confidential information);
(4) Sec. 122.21 (a)-(b), (c)(2), (e)-(k), (m)-(p), (q), and (r)--
(Application for a permit);
(5) Sec. 122.22--(Signatories);
(6) Sec. 122.23--(Concentrated animal feeding operations);
(7) Sec. 122.24--(Concentrated aquatic animal production
facilities);
(8) Sec. 122.25--(Aquaculture projects);
(9) Sec. 122.26--(Storm water discharges);
(10) Sec. 122.27--(Silviculture);
(11) Sec. 122.28--(General permits), Provided that States which do
not seek to implement the general permit program under Sec. 122.28 need
not do so.
(12) Sec. 122.41 (a)(1) and (b) through (n)--(Applicable permit
conditions) (Indian Tribes can satisfy enforcement authority
requirements under Sec. 123.34);
(13) Sec. 122.42--(Conditions applicable to specified categories of
permits);
(14) Sec. 122.43--(Establishing permit conditions);
(15) Sec. 122.44--(Establishing NPDES permit conditions);
(16) Sec. 122.45--(Calculating permit conditions);
(17) Sec. 122.46--(Duration);
(18) Sec. 122.47(a)--(Schedules of compliance);
(19) Sec. 122.48--(Monitoring requirements);
(20) Sec. 122.50--(Disposal into wells);
(21) Sec. 122.61--(Permit transfer);
(22) Sec. 122.62--(Permit modification);
(23) Sec. 122.64--(Permit termination);
(24) Sec. 124.3(a)--(Application for a permit);
(25) Sec. 124.5 (a), (c), (d), and (f)--(Modification of permits);
(26) Sec. 124.6 (a), (c), (d), and (e)--(Draft permit);
(27) Sec. 124.8--(Fact sheets);
(28) Sec. 124.10 (a)(1)(ii), (a)(1)(iii), (a)(1)(v), (b), (c), (d),
and (e)--(Public notice);
(29) Sec. 124.11--(Public comments and requests for hearings);
(30) Sec. 124.12(a)--(Public hearings); and
(31) Sec. 124.17 (a) and (c)--(Response to comments);
(32) Sec. 124.56--(Fact sheets);
(33) Sec. 124.57(a)--(Public notice);
(34) Sec. 124.59--(Comments from government agencies);
(35) Sec. 124.62--(Decision on variances);
(36) Subparts A, B, D, H, I, J, and N of part 125 of this chapter;
(37) 40 CFR parts 129, 133, and subchapter N;
(38) For a Great Lakes State or Tribe (as defined in 40 CFR 132.2),
40 CFR part 132 (NPDES permitting implementation procedures only);
(39) Sec. 122.30 (What are the objectives of the storm water
regulations for small MS4s?);
(40) Sec. 122.31 (For Indian Tribes only) (As a Tribe, what is my
role under the NPDES storm water program?);
(41) Sec. 122.32 (As an operator of a small MS4, am I regulated
under the NPDES storm water program?);
(42) Sec. 122.33 (If I am an operator of a regulated small MS4, how
do I apply
[[Page 304]]
for an NPDES permit? When do I have to apply?);
(43) Sec. 122.34 (As an operator of a regulated small MS4, what
will my NPDES MS4 storm water permit require?);
(44) Sec. 122.35 (As an operator of a regulated small MS4, may I
share the responsibility to implement the minimum control measures with
other entities?);
(45) Sec. 122.36 (As an operator of a regulated small MS4, what
happens if I don't comply with the application or permit requirements in
Sec. Sec. 122.33 through 122.35?); and
(46) 40 CFR part 3 (Cross-Media Electronic Reporting Regulation) and
40 CFR part 127 (NPDES Electronic Reporting Requirements).
(47) For a Great Lakes State, Sec. 122.38.
Note to paragraph (a): Except for paragraph (a)(46) of this section,
States need not implement provisions identical to the above listed
provisions. Implemented provisions must, however, establish requirements
at least as stringent as the corresponding listed provisions. While
States may impose more stringent requirements, they may not make one
requirement more lenient as a tradeoff for making another requirement
more stringent; for example, by requiring that public hearings be held
prior to issuing any permit while reducing the amount of advance notice
of such a hearing.
State programs may, if they have adequate legal authority, implement
any of the provisions of parts 122 and 124. See, for example, Sec. Sec.
122.5(d) (continuation of permits) and 124.4 (consolidation of permit
processing) of this chapter.
For example, a State may impose more stringent requirements in an
NPDES program by omitting the upset provision of Sec. 122.41 of this
chapter or by requiring more prompt notice of an upset.
(b) State NPDES programs shall have an approved continuing planning
process under 40 CFR 130.5 and shall assure that the approved planning
process is at all times consistent with the CWA.
(c) State NPDES programs shall ensure that any board or body which
approves all or portions of permits shall not include as a member any
person who receives, or has during the previous 2 years received, a
significant portion of income directly or indirectly from permit holders
or applicants for a permit.
(1) For the purposes of this paragraph:
(i) Board or body includes any individual, including the Director,
who has or shares authority to approve all or portions of permits either
in the first instance, as modified or reissued, or on appeal.
(ii) Significant portion of income means 10 percent or more of gross
personal income for a calendar year, except that it means 50 percent or
more of gross personal income for a calendar year if the recipient is
over 60 years of age and is receiving that portion under retirement,
pension, or similar arrangement.
(iii) Permit holders or applicants for a permit does not include any
department or agency of a State government, such as a Department of
Parks or a Department of Fish and Wildlife.
(iv) Income includes retirement benefits, consultant fees, and stock
dividends.
(2) For the purposes of paragraph (c) of this section, income is not
received ``directly or indirectly from permit holders or applicants for
a permit'' when it is derived from mutual fund payments, or from other
diversified investments for which the recipient does not know the
identity of the primary sources of income.
[48 FR 14178, Apr. 1, 1983]
Editorial Note: For Federal Register citations affecting Sec.
123.25, see the List of CFR Sections Affected, which appears in the
Finding Aids section of the printed volume and at www.govinfo.gov.
Sec. 123.26 Requirements for compliance evaluation programs.
(a) State programs shall have procedures for receipt, evaluation,
retention and investigation for possible enforcement of all notices and
reports required of permittees and other regulated persons (and for
investigation for possible enforcement of failure to submit these
notices and reports).
(b) State programs shall have inspection and surveillance procedures
to determine, independent of information supplied by regulated persons,
compliance or noncompliance with applicable program requirements. The
State shall implement and maintain:
(1) An automated, computerized system which is capable of
identifying and tracking all facilities and activities
[[Page 305]]
subject to the State Director's authority and any instances of
noncompliance with permit or other program requirements (e.g.,
identifying noncompliance with an automated, computerized program to
compare permit limits to reported measurements). State programs must
maintain a management information system which supports the compliance
evaluation activities of this part (e.g., source inventories; compliance
determinations based upon discharge monitoring reports, other submitted
reports, and determinations of noncompliance made from inspection or
document reviews; and subsequent violation notices, enforcement actions,
orders, and penalties) and complies with 40 CFR part 3 (Cross-Media
Electronic Reporting Regulation) and 40 CFR part 127 (NPDES Electronic
Reporting Requirements). State programs may use EPA's national NPDES
data system for their automated, computerized system;
(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;
(iii) Verify the adequacy of sampling, monitoring, and other methods
used by permittees and other regulated persons to develop that
information; and
(iv) Protect surface waters and public health.
(3) A program for investigating information obtained regarding
violations of applicable program and permit requirements; and
(4) Procedures for receiving and ensuring proper consideration of
information submitted by the Public about violations. Public effort in
reporting violations shall be encouraged, and the State Director shall
make available information on reporting procedures.
(c) The State Director and State officers engaged in compliance
evaluation shall have authority to enter any site or premises subject to
regulation or in which records relevant to program operation are kept in
order to copy any records, inspect, monitor or otherwise investigate
compliance with the State program including compliance with permit
conditions and other program requirements. States whose law requires a
search warrant before entry conform with this requirement.
(d) Investigatory inspections shall be conducted, samples shall be
taken and other information shall be gathered in a manner (e.g., using
proper ``chain of custody'' procedures) that will produce evidence
admissible in an enforcement proceeding or in court.
(e) State NPDES compliance evaluation programs shall have procedures
and ability for:
(1) Maintaining an automated, computerized system which is capable
of managing the comprehensive electronic inventory of all sources
covered by NPDES permits and generating an electronic schedule of
reports required to be submitted by permittees to the State agency.
(Note: State programs may use EPA's national NPDES data system for their
automated, computerized system.);
(2) Initial screening (i.e., pre-enforcement evaluation) of all
permit or grant-related compliance information to identify violations
and to establish priorities for further substantive technical
evaluation;
(3) When warranted, conducting a substantive technical evaluation
following the initial screening of all permit or grant-related
compliance information to determine the appropriate agency response;
(4) Maintaining a management information system which supports the
compliance evaluation activities of this part; and
(5) Inspecting the facilities of all major dischargers at least
annually.
(f) A state, tribe, or territory that is designated by EPA as an
initial recipient of electronic NPDES information, as defined in Sec.
127.2 of this chapter, must maintain the data it collects and
electronically transfer the minimum set of NPDES data to EPA through
timely data transfers in compliance with all requirements of 40 CFR
parts 3 and 127 (including the required data elements in appendix A to
part 127). Timely means that the authorized state, tribe, or territory
submits these
[[Page 306]]
data transfers (see the data elements in appendix A to 40 CFR part 127)
to EPA within 40 days of when the state, tribe, or territory completed
the activity or received a report submitted by a regulated entity. For
example, the data regarding a state inspection of an NPDES-regulated
entity that is finalized by the state on October 5th must be
electronically transferred to EPA no later than November 14th of that
same year (e.g., 40 days after October 5th). EPA must become the initial
recipient of electronic NPDES information from NPDES-regulated entities
if the state, tribe, or territory does not consistently maintain these
timely data transfers or does not comply with 40 CFR parts 3 and 127.
See 40 CFR 127.2(b) and 127.27 regarding the initial recipient.
[48 FR 14178, Apr. 1, 1983, as amended at 54 FR 18785, May 2, 1989; 63
FR 45122, Aug. 24, 1998; 80 FR 64099, Oct. 22, 2015]
Sec. 123.27 Requirements for enforcement authority.
(a) Any State agency administering a program shall have available
the following remedies for violations of State program requirements:
(1) To restrain immediately and effectively any person by order or
by suit in State court from engaging in any unauthorized activity which
is endangering or causing damage to public health or the environment;
Note: This paragraph (a)(1) requires that States have a mechanism
(e.g., an administrative cease and desist order or the ability to seek a
temporary restraining order) to stop any unauthorized activity
endangering public health or the environment.
(2) To sue in courts of competent jurisdiction to enjoin any
threatened or continuing violation of any program requirement, including
permit conditions, without the necessity of a prior revocation of the
permit;
(3) To assess or sue to recover in court civil penalties and to seek
criminal remedies, including fines, as follows:
(i) Civil penalties shall be recoverable for the violation of any
NPDES permit condition; any NPDES filing requirement; any duty to allow
or carry out inspection, entry or monitoring activities; or, any
regulation or orders issued by the State Director. These penalties shall
be assessable in at least the amount of $5,000 a day for each violation.
(ii) Criminal fines shall be recoverable against any person who
willfully or negligently violates any applicable standards or
limitations; any NPDES permit condition; or any NPDES filing
requirement. These fines shall be assessable in at least the amount of
$10,000 a day for each violation.
Note: States which provide the criminal remedies based on ``criminal
negligence,'' ``gross negligence'' or strict liability satisfy the
requirement of paragraph (a)(3)(ii) of this section.
(iii) Criminal fines shall be recoverable against any person who
knowingly makes any false statement, representation or certification in
any NPDES form, in any notice or report required by an NPDES permit, or
who knowingly renders inaccurate any monitoring device or method
required to be maintained by the Director. These fines shall be
recoverable in at least the amount of $5,000 for each instance of
violation.
Note: In many States the State Director will be represented in State
courts by the State Attorney General or other appropriate legal officer.
Although the State Director need not appear in court actions he or she
should have power to request that any of the above actions be brought.
(b)(1) The maximum civil penalty or criminal fine (as provided in
paragraph (a)(3) of this section) shall be assessable for each instance
of violation and, if the violation is continuous, shall be assessable up
to the maximum amount for each day of violation.
(2) The burden of proof and degree of knowledge or intent required
under State law for establishing violations under paragraph (a)(3) of
this section, shall be no greater than the burden of proof or degree of
knowledge or intent EPA must provide when it brings an action under the
appropriate Act;
Note: For example, this requirement is not met if State law includes
mental state as an element of proof for civil violations.
(c) A civil penalty assessed, sought, or agreed upon by the State
Director under paragraph (a)(3) of this section shall be appropriate to
the violation.
Note: To the extent that State judgments or settlements provide
penalties in amounts which EPA believes to be substantially inadequate
in comparison to the amounts which
[[Page 307]]
EPA would require under similar facts, EPA, when authorized by the
applicable statute, may commence separate actions for penalties.
Procedures for assessment by the State of the cost of
investigations, inspections, or monitoring surveys which lead to the
establishment of violations;
In addition to the requirements of this paragraph, the State may
have other enforcement remedies. The following enforcement options,
while not mandatory, are highly recommended:
Procedures which enable the State to assess or to sue any persons
responsible for unauthorized activities for any expenses incurred by the
State in removing, correcting, or terminating any adverse effects upon
human health and the environment resulting from the unauthorized
activity, whether or not accidental;
Procedures which enable the State to sue for compensation for any
loss or destruction of wildlife, fish or aquatic life, or their habitat,
and for any other damages caused by unauthorized activity, either to the
State or to any residents of the State who are directly aggrieved by the
unauthorized activity, or both; and
Procedures for the administrative assessment of penalties by the
Director.
(d) Any State administering a program shall provide for public
participation in the State enforcement process by providing either:
(1) Authority which allows intervention as of right in any civil or
administrative action to obtain remedies specified in paragraphs (a)(1),
(2) or (3) of this section by any citizen having an interest which is or
may be adversely affected; or
(2) Assurance that the State agency or enforcement authority will:
(i) Investigate and provide written responses to all citizen
complaints submitted pursuant to the procedures specified in Sec.
123.26(b)(4);
(ii) Not oppose intervention by any citizen when permissive
intervention may be authorized by statute, rule, or regulation; and
(iii) Publish notice of and provide at least 30 days for public
comment on any proposed settlement of a State enforcement action.
(e) Indian Tribes that cannot satisfy the criminal enforcement
authority requirements of this section may still receive program
approval if they meet the requirement for enforcement authority
established under Sec. 123.34.
(Clean Water Act (33 U.S.C. 1251 et seq.), Safe Drinking Water Act (42
U.S.C. 300f et seq.), Clean Air Act (42 U.S.C. 7401 et seq.), Resource
Conservation and Recovery Act (42 U.S.C. 6901 et seq.))
[48 FR 14178, Apr. 1, 1983, as amended at 48 FR 39620, Sept. 1, 1983; 50
FR 6941, Feb. 19, 1985; 54 FR 258, Jan. 4, 1989; 58 FR 67981, Dec. 22,
1993]
Sec. 123.28 Control of disposal of pollutants into wells.
State law must provide authority to issue permits to control the
disposal of pollutants into wells. Such authority shall enable the State
to protect the public health and welfare and to prevent the pollution of
ground and surface waters by prohibiting well discharges or by issuing
permits for such discharges with appropriate permit terms and
conditions. A program approved under section 1422 of SDWA satisfies the
requirements of this section.
Note: States which are authorized to administer the NPDES permit
program under section 402 of CWA are encouraged to rely on existing
statutory authority, to the extent possible, in developing a State UIC
program under section 1422 of SDWA. Section 402(b)(1)(D) of CWA requires
that NPDES States have the authority ``to issue permits which * * *
control the disposal of pollutants into wells.'' In many instances,
therefore, NPDES States will have existing statutory authority to
regulate well disposal which satisfies the requirements of the UIC
program. Note, however, that CWA excludes certain types of well
injections from the definition of ``pollutant.'' If the State's
statutory authority contains a similar exclusion it may need to be
modified to qualify for UIC program approval.
Sec. 123.29 Prohibition.
State permit programs shall provide that no permit shall be issued
when the Regional Administrator has objected in writing under Sec.
123.44.
Sec. 123.30 Judicial review of approval or denial of permits.
All States that administer or seek to administer a program under
this part shall provide an opportunity for judicial review in State
Court of the final approval or denial of permits by the State that is
sufficient to provide for,
[[Page 308]]
encourage, and assist public participation in the permitting process. A
State will meet this standard if State law allows an opportunity for
judicial review that is the same as that available to obtain judicial
review in federal court of a federally-issued NPDES permit (see Sec.
509 of the Clean Water Act). A State will not meet this standard if it
narrowly restricts the class of persons who may challenge the approval
or denial of permits (for example, if only the permittee can obtain
judicial review, if persons must demonstrate injury to a pecuniary
interest in order to obtain judicial review, or if persons must have a
property interest in close proximity to a discharge or surface waters in
order to obtain judicial review.) This requirement does not apply to
Indian Tribes.
[61 FR 20980, May 8, 1996]
Sec. 123.31 Requirements for eligibility of Indian Tribes.
(a) Consistent with section 518(e) of the CWA, 33 U.S.C. 1377(e),
the Regional Administrator will treat an Indian Tribe as eligible to
apply for NPDES program authority if it meets the following criteria:
(1) The Indian Tribe is recognized by the Secretary of the Interior.
(2) The Indian Tribe has a governing body carrying out substantial
governmental duties and powers.
(3) The functions to be exercised by the Indian Tribe pertain to the
management and protection of water resources which are held by an Indian
Tribe, held by the United States in trust for the Indians, held by a
member of an Indian Tribe if such property interest is subject to a
trust restriction on alienation, or otherwise within the borders of an
Indian reservation.
(4) The Indian Tribe is reasonably expected to be capable, in the
Regional Administrator's judgment, of carrying out the functions to be
exercised, in a manner consistent with the terms and purposes of the Act
and applicable regulations, of an effective NPDES permit program.
(b) An Indian Tribe which the Regional Administrator determines
meets the criteria described in paragraph (a) of this section must also
satisfy the State program requirements described in this part for
assumption of the State program.
[58 FR 67981, Dec. 22, 1993, as amended at 59 FR 64343, Dec. 14, 1994]
Sec. 123.32 Request by an Indian Tribe for a determination of
eligibility.
An Indian Tribe may apply to the Regional Administrator for a
determination that it qualifies pursuant to section 518 of the Act for
purposes of seeking NPDES permit program approval. The application shall
be concise and describe how the Indian Tribe will meet each of the
requirements of Sec. 123.31. The application shall include the
following information:
(a) A statement that the Tribe is recognized by the Secretary of the
Interior;
(b) A descriptive statement demonstrating that the Tribal governing
body is currently carrying out substantial governmental duties and
powers over a defined area. This statement should:
(1) Describe the form of the Tribal government;
(2) Describe the types of governmental functions currently performed
by the Tribal governing body, such as, but not limited to, the exercise
of police powers affecting (or relating to) the health, safety, and
welfare of the affected population; taxation; and the exercise of the
power of eminent domain; and
(3) Identify the source of the Tribal government's authority to
carry out the governmental functions currently being performed.
(c) A map or legal description of the area over which the Indian
Tribe asserts authority under section 518(e)(2) of the Act; a statement
by the Tribal Attorney General (or equivalent official authorized to
represent the Tribe in all legal matters in court pertaining to the
program for which it seeks approval) which describes the basis for the
Tribe's assertion (including the nature or subject matter of the
asserted regulatory authority); copies of those documents such as Tribal
constitutions, by-laws, charters, executive orders, codes, ordinances,
and/or resolutions which support the Tribe believes
[[Page 309]]
are relevant to its assertion under section 518(e)(2) of the Act; and a
description of the location of the surface waters for which the Tribe
proposes to establish an NPDES permit program.
(d) A narrative statement describing the capability of the Indian
Tribe to administer an effective, environmentally sound NPDES permit
program. The statement should include:
(1) A description of the Indian Tribe's previous management
experience which may include the administration of programs and service
authorized by the Indian Self-Determination and Education Assistance Act
(25 U.S.C. 450 et seq.), the Indian Mineral Development Act (25 U.S.C.
2101 et seq.), or the Indian Sanitation Facility Construction Activity
Act (42 U.S.C. 2004a);
(2) A list of existing environmental or public health programs
administered by the Tribal governing body, and a copy of related Tribal
laws, regulations, and policies;
(3) A description of the entity (or entities) which exercise the
executive, legislative, and judicial functions of the Tribal government;
(4) A description of the existing, or proposed, agency of the Indian
Tribe which will assume primary responsibility for establishing and
administering an NPDES permit program (including a description of the
relationship between the existing or proposed agency and its regulated
entities);
(5) A description of the technical and administrative abilities of
the staff to administer and manage an effective, environmentally sound
NPDES permit program or a plan which proposes how the Tribe will acquire
additional administrative and technical expertise. The plan must address
how the Tribe will obtain the funds to acquire the administrative and
technical expertise.
(e) The Regional Administrator may, at his or her discretion,
request further documentation necessary to support a Tribe's
eligibility.
(f) If the Administrator or his or her delegatee has previously
determined that a Tribe has met the prerequisites that make it eligible
to assume a role similar to that of a state as provided by statute under
the Safe Drinking Water Act, the Clean Water Act, or the Clean Air Act,
then that Tribe need provide only that information unique to the NPDES
program which is requested by the Regional Administrator.
[58 FR 67982, Dec. 22, 1993, as amended at 59 FR 64343, Dec. 14, 1994]
Sec. 123.33 Procedures for processing an Indian Tribe's application.
(a) The Regional Administrator shall process an application of an
Indian Tribe submitted pursuant to Sec. 123.32 in a timely manner. He
shall promptly notify the Indian Tribe of receipt of the application.
(b) The Regional Administrator shall follow the procedures described
in 40 CFR part 123, subpart D in processing a Tribe's request to assume
the NPDES program.
[58 FR 67982, Dec. 22, 1993, as amended at 59 FR 64343, Dec. 14, 1994]
Sec. 123.34 Provisions for Tribal criminal enforcement authority.
To the extent that an Indian Tribe is precluded from asserting
criminal enforcement authority as required under Sec. 123.27, the
Federal Government will exercise primary criminal enforcement
responsibility. The Tribe, with the EPA Region, shall develop a
procedure by which the Tribal agency will refer potential criminal
violations to the Regional Administrator, as agreed to by the parties,
in an appropriate and timely manner. This procedure shall encompass all
circumstances in which the Tribe is incapable of exercising the
enforcement requirements of Sec. 123.27. This agreement shall be
incorporated into a joint or separate Memorandum of Agreement with the
EPA Region, as appropriate.
[58 FR 67983, Dec. 22, 1993]
Sec. 123.35 As the NPDES Permitting Authority for regulated small
MS4s, what is my role?
(a) You must comply with the requirements for all NPDES permitting
authorities under Parts 122, 123, 124, and 125 of this chapter. (This
section is meant only to supplement those requirements and discuss
specific issues related to the small MS4 storm water program.)
[[Page 310]]
(b) You must develop a process, as well as criteria, to designate
small MS4s other than those described in Sec. 122.32(a)(1) of this
chapter, as regulated small MS4s to be covered under the NPDES storm
water discharge control program. This process must include the authority
to designate a small MS4 waived under paragraph (d) of this section if
circumstances change. EPA may make designations under this section if a
State or Tribe fails to comply with the requirements listed in this
paragraph. In making designations of small MS4s, you must:
(1)(i) Develop criteria to evaluate whether a storm water discharge
results in or has the potential to result in exceedances of water
quality standards, including impairment of designated uses, or other
significant water quality impacts, including habitat and biological
impacts.
(ii) Guidance: For determining other significant water quality
impacts, EPA recommends a balanced consideration of the following
designation criteria on a watershed or other local basis: discharge to
sensitive waters, high growth or growth potential, high population
density, contiguity to an urbanized area, significant contributor of
pollutants to waters of the United States, and ineffective protection of
water quality by other programs;
(2) Apply such criteria, at a minimum, to any small MS4 located
outside of an urbanized area serving a jurisdiction with a population
density of at least 1,000 people per square mile and a population of at
least 10,000;
(3) Designate any small MS4 that meets your criteria by December 9,
2002. You may wait until December 8, 2004 to apply the designation
criteria on a watershed basis if you have developed a comprehensive
watershed plan. You may apply these criteria to make additional
designations at any time, as appropriate; and
(4) Designate any small MS4 that contributes substantially to the
pollutant loadings of a physically interconnected municipal separate
storm sewer that is regulated by the NPDES storm water program.
(c) You must make a final determination within 180 days from receipt
of a petition under Sec. 122.26(f) of this chapter (or analogous State
or Tribal law). If you do not do so within that time period, EPA may
make a determination on the petition.
(d) You must issue permits consistent with Sec. Sec. 122.32 through
122.35 of this chapter to all regulated small MS4s. You may waive or
phase in the requirements otherwise applicable to regulated small MS4s,
as defined in Sec. 122.32(a)(1) of this chapter, under the following
circumstances:
(1) You may waive permit coverage for each small MS4s in
jurisdictions with a population under 1,000 within the urbanized area
where all of the following criteria have been met:
(i) Its discharges are not contributing substantially to the
pollutant loadings of a physically interconnected regulated MS4 (see
paragraph (b)(4) of this section); and
(ii) If the small MS4 discharges any pollutant(s) that have been
identified as a cause of impairment of any water body to which it
discharges, storm water controls are not needed based on wasteload
allocations that are part of an EPA approved or established ``total
maximum daily load'' (TMDL) that address the pollutant(s) of concern.
(2) You may waive permit coverage for each small MS4 in
jurisdictions with a population under 10,000 where all of the following
criteria have been met:
(i) You have evaluated all waters of the U.S., including small
streams, tributaries, lakes, and ponds, that receive a discharge from
the MS4 eligible for such a waiver.
(ii) For all such waters, you have determined that storm water
controls are not needed based on wasteload allocations that are part of
an EPA approved or established TMDL that addresses the pollutant(s) of
concern or, if a TMDL has not been developed or approved, an equivalent
analysis that determines sources and allocations for the pollutant(s) of
concern.
(iii) For the purpose of paragraph (d)(2)(ii) of this section, the
pollutant(s) of concern include biochemical oxygen demand (BOD),
sediment or a parameter that addresses sediment (such as total suspended
solids, turbidity or siltation), pathogens, oil and grease, and any
pollutant that has been
[[Page 311]]
identified as a cause of impairment of any water body that will receive
a discharge from the MS4.
(iv) You have determined that current and future discharges from the
MS4 do not have the potential to result in exceedances of water quality
standards, including impairment of designated uses, or other significant
water quality impacts, including habitat and biological impacts.
(v) Guidance: To help determine other significant water quality
impacts, EPA recommends a balanced consideration of the following
criteria on a watershed or other local basis: discharge to sensitive
waters, high growth or growth potential, high population or commercial
density, significant contributor of pollutants to waters of the United
States, and ineffective protection of water quality by other programs.
(3) You may phase in permit coverage for small MS4s serving
jurisdictions with a population under 10,000 on a schedule consistent
with a State watershed permitting approach. Under this approach, you
must develop and implement a schedule to phase in permit coverage for
approximately 20 percent annually of all small MS4s that qualify for
such phased-in coverage. Under this option, all regulated small MS4s are
required to have coverage under an NPDES permit by no later than March
8, 2007. Your schedule for phasing in permit coverage for small MS4s
must be approved by the Regional Administrator no later than December
10, 2001.
(4) If you choose to phase in permit coverage for small MS4s in
jurisdictions with a population under 10,000, in accordance with
paragraph (d)(3) of this section, you may also provide waivers in
accordance with paragraphs (d)(1) and (d)(2) of this section pursuant to
your approved schedule.
(5) If you do not have an approved schedule for phasing in permit
coverage, you must make a determination whether to issue an NPDES permit
or allow a waiver in accordance with paragraph (d)(1) or (d)(2) of this
section, for each eligible MS4 by December 9, 2002.
(6) You must periodically review any waivers granted in accordance
with paragraph (d)(2) of this section to determine whether any of the
information required for granting the waiver has changed. At a minimum,
you must conduct such a review once every five years. In addition, you
must consider any petition to review any waiver when the petitioner
provides evidence that the information required for granting the waiver
has substantially changed.
(e) You must specify a time period of up to 5 years from the date of
permit issuance for operators of regulated small MS4s to fully develop
and implement their storm water program.
(f) You must include the requirements in Sec. Sec. 122.33 through
122.35 of this chapter in any permit issued for regulated small MS4s or
develop permit limits based on a permit application submitted by a
regulated small MS4. (You may include conditions in a regulated small
MS4 NPDES permit that direct the MS4 to follow an existing qualifying
local program's requirements, as a way of complying with some or all of
the requirements in Sec. 122.34(b) of this chapter. See Sec. 122.34(c)
of this chapter. Qualifying local, State or Tribal program requirements
must impose, at a minimum, the relevant requirements of Sec. 122.34(b)
of this chapter.)
(g) If you issue a general permit to authorize storm water
discharges from small MS4s, you must make available a menu of BMPs to
assist regulated small MS4s in the design and implementation of
municipal storm water management programs to implement the minimum
measures specified in Sec. 122.34(b) of this chapter. EPA plans to
develop a menu of BMPs that will apply in each State or Tribe that has
not developed its own menu. Regardless of whether a menu of BMPs has
been developed by EPA, EPA encourages State and Tribal permitting
authorities to develop a menu of BMPs that is appropriate for local
conditions. EPA also intends to provide guidance on developing BMPs and
measurable goals and modify, update, and supplement such guidance based
on the assessments of the NPDES MS4 storm water program and research to
be conducted over the next thirteen years.
(h)(1) You must incorporate any additional measures necessary to
ensure effective implementation of your State
[[Page 312]]
or Tribal storm water program for regulated small MS4s.
(2) Guidance: EPA recommends consideration of the following:
(i) You are encouraged to use a general permit for regulated small
MS4s;
(ii) To the extent that your State or Tribe administers a dedicated
funding source, you should play an active role in providing financial
assistance to operators of regulated small MS4s;
(iii) You should support local programs by providing technical and
programmatic assistance, conducting research projects, performing
watershed monitoring, and providing adequate legal authority at the
local level;
(iv) You are encouraged to coordinate and utilize the data collected
under several programs including water quality management programs, TMDL
programs, and water quality monitoring programs;
(v) Where appropriate, you may recognize existing responsibilities
among governmental entities for the control measures in an NPDES small
MS4 permit (see Sec. 122.35(b) of this chapter); and
(vi) You are encouraged to provide a brief (e.g., two page)
reporting format to facilitate compiling and analyzing data from
submitted reports under Sec. 122.34(g)(3) of this chapter. EPA intends
to develop a model form for this purpose.
[64 FR 68850, Dec. 8, 1999]
Sec. 123.36 Establishment of technical standards for concentrated
animal feeding operations.
If the State has not already established technical standards for
nutrient management that are consistent with 40 CFR 412.4(c)(2), the
Director shall establish such standards by the date specified in Sec.
123.62(e).
[68 FR 7269, Feb. 12, 2003]
Subpart C_Transfer of Information and Permit Review
Sec. 123.41 Sharing of information.
(a) Any information obtained or used in the administration of a
State program shall be available to EPA upon request without
restriction. This includes the timely data transfers in compliance with
all requirements of 40 CFR parts 3 and 127 (including the required data
elements in appendix A to part 127). If the information has been
submitted to the State under a claim of confidentiality, the State must
submit that claim to EPA when providing information under this section.
Any information obtained from a State and subject to a claim of
confidentiality will be treated in compliance with the regulations in 40
CFR part 2. If EPA obtains information from an authorized state NPDES
program, which is not claimed to be confidential, EPA may make that
information available to the public without further notice. Timely means
that the authorized state, tribe, or territory submits these data
transfers (see the data elements in appendix A to 40 CFR part 127) to
EPA within 40 days of when the state, tribe, or territory completed the
activity or received a report submitted by a regulated entity. For
example, the data regarding a state inspection of an NPDES-regulated
entity that is finalized by the state on October 5th must be
electronically transferred to EPA no later than November 14th of that
same year (e.g., 40 days after October 5th). EPA must become the initial
recipient of electronic NPDES information from NPDES-regulated entities
if the state, tribe, or territory does not consistently maintain these
timely data transfers or does not comply with 40 CFR parts 3 and 127.
See 40 CFR 127.2(b) and 127.27 regarding the initial recipient.
(b) EPA shall furnish to States with approved programs the
information in its files not submitted under a claim of confidentiality
which the State needs to implement its approved program. EPA shall
furnish to States with approved programs information submitted to EPA
under a claim of confidentiality, which the State needs to implement its
approved program, subject to the conditions in 40 CFR part 2.
[48 FR 14178, Apr. 1, 1983, as amended at 80 FR 64100, Oct. 22, 2015]
Sec. 123.42 Receipt and use of Federal information.
Upon approving a State permit program, EPA will send to the State
agency administering the permit program any relevant information which
was
[[Page 313]]
collected by EPA. The Memorandum of Agreement under Sec. 123.24 (or, in
the case of a sewage sludge management program, Sec. 501.14 of this
chapter) will provide for the following, in such manner as the State
Director and the Regional Administrator agree:
(a) Prompt transmission to the State Director from the Regional
Administrator of copies of any pending permit applications or any other
relevant information collected before the approval of the State permit
program and not already in the possession of the State Director. When
existing permits are transferred to the State Director (e.g., for
purposes of compliance monitoring, enforcement or reissuance), relevant
information includes support files for permit issuance, compliance
reports and records of enforcement actions.
(b) Procedures to ensure that the State Director will not issue a
permit on the basis of any application received from the Regional
Administrator which the Regional Administrator identifies as incomplete
or otherwise deficient until the State Director receives information
sufficient to correct the deficiency.
[48 FR 14178, Apr. 1, 1983, as amended at 63 FR 45122, Aug. 24, 1998]
Sec. 123.43 Transmission of information to EPA.
(a) Each State agency administering a permit program shall transmit
to the Regional Administrator copies of permit program forms and any
other relevant information to the extent and in the manner agreed to by
the State Director and Regional Administrator in the Memorandum of
Agreement and not inconsistent with this part. Proposed permits shall be
prepared by State agencies unless agreement to the contrary has been
reached under Sec. 123.44(j). The Memorandum of Agreement shall provide
for the following:
(1) Prompt transmission to the Regional Administrator of a copy of
all complete permit applications received by the State Director, except
those for which permit review has been waived under Sec. 123.24(d). The
State shall supply EPA with copies of permit applications for which
permit review has been waived whenever requested by EPA;
(2) Prompt transmission to the Regional Administrator of notice of
every action taken by the State agency related to the consideration of
any permit application or general permit, including a copy of each
proposed or draft permit and any conditions, requirements, or documents
which are related to the proposed or draft permit or which affect the
authorization of the proposed permit, except those for which permit
review has been waived under Sec. 123.24(d). The State shall supply EPA
with copies of notices for which permit review has been waived whenever
requested by EPA; and
(3) Transmission to the Regional Administrator of a copy of every
issued permit following issuance, along with any and all conditions,
requirements, or documents which are related to or affect the
authorization of the permit.
(b) If the State intends to waive any of the permit application
requirements of Sec. 122.21(j) or (q) of this chapter for a specific
applicant, the Director must submit a written request to the Regional
Administrator no less than 210 days prior to permit expiration. This
request must include the State's justification for granting the waiver.
(c) The State program shall provide for transmission by the State
Director to EPA of:
(1) Notices from publicly owned treatment works under Sec.
122.42(b) and 40 CFR part 403, upon request of the Regional
Administrator;
(2) A copy of any significant comments presented in writing pursuant
to the public notice of a draft permit and a summary of any significant
comments presented at any hearing on any draft permit, except those
comments regarding permits for which permit review has been waived under
Sec. 123.24(d) and for which EPA has not otherwise requested receipt,
if:
(i) The Regional Administrator requests this information; or
(ii) The proposed permit contains requirements significantly
different from those contained in the tentative determination and draft
permit; or
(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.
[[Page 314]]
(d) Any State permit program shall keep such records and submit to
the Administrator such information as the Administrator may reasonably
require to ascertain whether the State program complies with the
requirements of the CWA or of this part. This includes the timely data
transfers in compliance with all requirements of 40 CFR part 127
(including the required data elements in appendix A to part 127).
[48 FR 14178, Apr. 1, 1983, as amended at 60 FR 33931, June 29, 1995; 64
FR 42470, Aug. 4, 1999; 80 FR 64100, Oct. 22, 2015]
Sec. 123.44 EPA review of and objections to State permits.
(a)(1) The Memorandum of Agreement shall provide a period of time
(up to 90 days from receipt of proposed permits) to which the Regional
Administrator may make general comments upon, objections to, or
recommendations with respect to proposed permits. EPA reserves the right
to take 90 days to supply specific grounds for objection,
notwithstanding any shorter period specified in the Memorandum of
Agreement, when a general objection is filed within the review period
specified in the Memorandum of Agreement. The Regional Administrator
shall send a copy of any comment, objection or recommendation to the
permit applicant.
(2) In the case of general permits, EPA shall have 90 days from the
date of receipt of the proposed general permit to comment upon, object
to or make recommendations with respect to the proposed general permit,
and is not bound by any shorter time limits set by the Memorandum of
Agreement for general comments, objections or recommendations.
(b)(1) Within the period of time provided under the Memorandum of
Agreement for making general comments upon, objections to or
recommendations with respect to proposed permits, the Regional
Administrator shall notify the State Director of any objection to
issuance of a proposed permit (except as provided in paragraph (a)(2) of
this section for proposed general permits). This notification shall set
forth in writing the general nature of the objection.
(2) Within 90 days following receipt of a proposed permit to which
he or she has objected under paragraph (b)(1) of this section, or in the
case of general permits within 90 days after receipt of the proposed
general permit, the Regional Administrator shall set forth in writing
and transmit to the State Director:
(i) A statement of the reasons for the objection (including the
section of CWA or regulations that support the objection), and
(ii) The actions that must be taken by the State Director to
eliminate the objection (including the effluent limitations and
conditions which the permit would include if it were issued by the
Regional Administrator.)
Note: Paragraphs (a) and (b) of this section, in effect, modify any
existing agreement between EPA and the State which provides less than 90
days for EPA to supply the specific grounds for an objection. However,
when an agreement provides for an EPA review period of less than 90
days, EPA must file a general objection, in accordance with paragraph
(b)(1) of this section within the time specified in the agreement. This
general objection must be followed by a specific objection within the
90-day period. This modification to MOA's allows EPA to provide detailed
information concerning acceptable permit conditions, as required by
section 402(d) of CWA. To avoid possible confusion, MOA's should be
changed to reflect this arrangement.
(c) The Regional Administrator's objection to the issuance of a
proposed permit must be based upon one or more of the following grounds:
(1) The permit fails to apply, or to ensure compliance with, any
applicable requirement of this part;
Note: For example, the Regional Administrator may object to a permit
not requiring the achievement of required effluent limitations by
applicable statutory deadlines.
(2) In the case of a proposed permit for which notification to the
Administrator is required under section 402(b)(5) of CWA, the written
recommendations of an affected State have not been accepted by the
permitting State and the Regional Administrator finds the reasons for
rejecting the recommendations are inadequate;
[[Page 315]]
(3) The procedures followed in connection with formulation of the
proposed permit failed in a material respect to comply with procedures
required by CWA or by regulations thereunder or by the Memorandum of
Agreement;
(4) Any finding made by the State Director in connection with the
proposed permit misinterprets CWA or any guidelines or regulations under
CWA, or misapplies them to the facts;
(5) Any provisions of the proposed permit relating to the
maintenance of records, reporting, monitoring, sampling, or the
provision of any other information by the permittee are inadequate, in
the judgment of the Regional Administrator, to assure compliance with
permit conditions, including effluent standards and limitations or
standards for sewage sludge use and disposal required by CWA, by the
guidelines and regulations issued under CWA, or by the proposed permit;
(6) In the case of any proposed permit with respect to which
applicable effluent standards and limitations or standards for sewage
sludge use and disposal under sections 301, 302, 306, 307, 318, 403, and
405 of CWA have not yet been promulgated by the Agency, the proposed
permit, in the judgment of the Regional Administrator, fails to carry
out the provisions of CWA or of any regulations issued under CWA; the
provisions of this paragraph apply to determinations made pursuant to
Sec. 125.3(c)(2) in the absence of applicable guidelines, to best
management practices under section 304(e) of CWA, which must be
incorporated into permits as requirements under section 301, 306, 307,
318, 403 or 405, and to sewage sludge use and disposal requirements
developed on a case-by-case basis pursuant to section 405(d) of CWA, as
the case may be;
(7) Issuance of the proposed permit would in any other respect be
outside the requirements of CWA, or regulations issued under CWA.
(8) The effluent limits of a permit fail to satisfy the requirements
of 40 CFR 122.44(d).
(9) For a permit issued by a Great Lakes State or Tribe (as defined
in 40 CFR 132.2), the permit does not satisfy the conditions promulgated
by the State, Tribe, or EPA pursuant to 40 CFR part 132.
(d) Prior to notifying the State Director of an objection based upon
any of the grounds set forth in paragraph (c) of this section, the
Regional Administrator:
(1) Will consider all data transmitted pursuant to Sec. 123.43 (or,
in the case of a sewage sludge management program, Sec. 501.21 of this
chapter);
(2) May, if the information provided is inadequate to determine
whether the proposed permit meets the guidelines and requirements of
CWA, request the State Director to transmit to the Regional
Administrator the complete record of the permit proceedings before the
State, or any portions of the record that the Regional Administrator
determines are necessary for review. If this request is made within 30
days of receipt of the State submittal under Sec. 123.43 (or, in the
case of a sewage sludge management program, Sec. 501.21 of this
chapter), it will constitute an interim objection to the issuance of the
permit, and the full period of time specified in the Memorandum of
Agreement for the Regional Administrator's review will recommence when
the Regional Administrator has received such record or portions of the
record; and
(3) May, in his or her discretion, and to the extent feasible within
the period of time available under the Memorandum of Agreement, afford
to interested persons an opportunity to comment on the basis for the
objection;
(e) Within 90 days of receipt by the State Director of an objection
by the Regional Administrator, the State or interstate agency or any
interested person may request that a public hearing be held by the
Regional Administrator on the objection. A public hearing in accordance
with the procedures of Sec. 124.12 (c) and (d) of this chapter (or, in
the case of a sewage sludge management program, Sec. 501.15(d)(7) of
this chapter) will be held, and public notice provided in accordance
with Sec. 124.10 of this chapter, (or, in the case of a sewage sludge
management program, Sec. 501.15(d)(5) of this chapter), whenever
requested by the State or the interstate agency which proposed the
permit or if warranted by significant public interest based on requests
received.
[[Page 316]]
(f) A public hearing held under paragraph (e) of this section shall
be conducted by the Regional Administrator, and, at the Regional
Administrator's discretion, with the assistance of an EPA panel
designated by the Regional Administrator, in an orderly and expeditious
manner.
(g) Following the public hearing, the Regional Administrator shall
reaffirm the original objection, modify the terms of the objection, or
withdraw the objection, and shall notify the State of this decision.
(h)(1) If no public hearing is held under paragraph (e) of this
section and the State does not resubmit a permit revised to meet the
Regional Administrator's objection within 90 days of receipt of the
objection, the Regional Administrator may issue the permit in accordance
with parts 121, 122 and 124 of this chapter and any other guidelines and
requirements of CWA.
(2) If a public hearing is held under paragraph (e) of this section,
the Regional Administrator does not withdraw the objection, and the
State does not resubmit a permit revised to meet the Regional
Administrator's objection or modified objection within 30 days of the
date of the Regional Administrator's notification under paragraph (g) of
this section, the Regional Administrator may issue the permit in
accordance with parts 121, 122 and 124 of this chapter and any other
guidelines and requirements of CWA.
(3) Exclusive authority to issue the permit passes to EPA when the
times set out in this paragraph expire.
(i) [Reserved]
(j) The Regional Administrator may agree, in the Memorandum of
Agreement under Sec. 123.24 (or, in the case of a sewage sludge
management program, Sec. 501.14 of this chapter), to review draft
permits rather than proposed permits. In such a case, a proposed permit
need not be prepared by the State and transmitted to the Regional
Administrator for review in accordance with this section unless the
State proposes to issue a permit which differs from the draft permit
reviewed by the Regional Administrator, the Regional Administrator has
objected to the draft permit, or there is significant public comment.
[48 FR 14178, Apr. 1, 1983, as amended at 54 FR 18785, May 2, 1989; 54
FR 23896, June 2, 1989; 60 FR 15386, Mar. 23, 1995; 63 FR 45122, Aug.
24, 1998; 65 FR 30910, May 15, 2000]
Sec. 123.45 Noncompliance and program reporting by the Director.
As of December 21, 2021 EPA must prepare public (quarterly and
annual) reports as set forth here from information that is required to
be submitted by NPDES-regulated facilities and the State Director.
(a) NPDES noncompliance reports (NNCR)--quarterly. EPA must produce
an online report on a quarterly basis with the minimum content specified
here. The Director must electronically submit timely, accurate, and
complete data to EPA that allows EPA to prepare these quarterly NNCRs.
(1) Content. The NNCR must include the following information:
(i) A facility specific list of NPDES-regulated entities in
violation, including non-POTWs, POTWs, Federal permittees, major
facilities, and nonmajor facilities, as well as a list of CWA point
sources that did not obtain NPDES permits authorizing discharges of
pollutants to waters of the United States.
(ii) For each identified NPDES-regulated entity in violation of the
Clean Water Act:
(A) The name, location, and permit number or other identification
number, if a permit does not exist.
(B) Information describing identified violation(s) that occurred in
that quarter, including the date(s) on which violation(s) started and
ended (if applicable). Where applicable, the information must indicate
the pipe, parameter, and the effluent limit(s) violated. Violations must
be classified as Category I and II as described in paragraph (a)(2) of
this section.
(C) The date(s) and type of formal enforcement and written informal
enforcement action(s) taken by the Director to respond to violation(s),
including any penalties assessed.
(D) The status of the violation(s) (e.g., corrected or continuing,
and the date that the violation(s) was resolved), which can be reported
by linking violations to specific enforcement
[[Page 317]]
actions, or tracking noncompliance end dates.
(E) Any optional details that may help explain the instance(s) of
noncompliance as provided by the Director or EPA.
(F) All violations must be reported in successive quarterly reports
until the violation(s) is documented as being corrected (i.e., the
regulated entity is no longer in violation). After a violation is
reported as corrected in the NNCR, that particular violation will not
continue to appear in subsequent quarterly reports, although it will
appear in the relevant annual report.
(G) If the permittee or discharger is in compliance with an
enforcement order (e.g., permittee is completing the necessary upgrades
to its existing wastewater treatment system in accordance with the
schedule in the enforcement order), and has no new, additional
violation(s), the compliance status must be reported as ``resolved
pending'' in the NNCR. The permittee/discharger will continue to be
listed on the NNCR until the violation(s) is documented as being
corrected.
(2) Violation classifications. A violation must be classified as
``Category I Noncompliance'' if one or more of the criteria set forth
below are met.
(i) Reporting violations. These include failure to submit a
complete, required report (e.g., final compliance schedule progress
report, discharge monitoring report, annual report) within 30 days after
the date established in a permit, administrative or judicial order, or
regulation. In addition, these also include any failure to comply with
the reporting requirements at 40 CFR 122.41(l)(6).
(ii) Compliance construction violations. These include failure to
start construction, complete construction, or achieve final compliance
within 90 days after the date established in a permit, administrative or
judicial order, or regulation.
(iii) Effluent limits. These include violations of interim or final
effluent limits established in a permit, administrative or judicial
enforcement order, or regulation that exceed the ``Criteria for
Noncompliance Reporting in the NPDES Program'' in appendix A to Sec.
123.45.
(iv) Compliance schedule violations. These include violations of any
requirement or condition in permits, or administrative or judicial
enforcement orders, excluding reporting violations, compliance
construction milestones and effluent limits.
(v) Non-numeric effluent limit violations. These include violations
of non-numeric effluent limits (e.g., violations of narrative permit
requirements or requirements to implement best management practices)
that caused or could cause water quality impacts. Examples of such
impacts on water quality include, but are not limited to, unauthorized
discharges that may have caused or contributed to exceedances in water
quality standards, fish kills, oil sheens, beach closings, fishing bans,
restrictions on designated uses, and unauthorized bypass or pass through
or interference with the operations of a POTW (see 40 CFR 403.3).
(vi) Other violations. These include any violation or group of
violations, which in the discretion of the Director or EPA, are
considered to be of concern. These violations include repeat violations
by a specific point source, geographic clusters of violations,
corporations with violations at multiple facilities, or industrial
sectors with identified patterns of violation that have a cumulative
impact on water quality, but otherwise would not meet Category I
criteria. EPA must determine whether to issue policy or guidance to
provide more specificity on identifying these types of violations and
how to report them.
(vii) All other types of noncompliance that do not meet the criteria
for Category I Noncompliance must be classified as ``Category II
Noncompliance.''
(3) EPA must provide an easy-to-use interface to facilitate public
access, use, and understanding of the NNCR, including the ability to
sort violations by duration, severity, frequency, detection method
(e.g., self-reported effluent, monitoring, inspection), flow and
pollutant loadings, type of discharger, waterbody receiving the
discharge, proximity to impaired waters, and category of violation (I or
II). EPA must
[[Page 318]]
exclude from public release any confidential business information or
enforcement-sensitive information associated with the NNCR.
(b) NPDES noncompliance reports--annual summary (annual). EPA must
prepare annual public reports that provide a summary of compliance
monitoring and enforcement activities within each state, tribe, and
territory, as well as summary information on violations identified in
the four quarterly NNCRs for that federal fiscal year. EPA must provide
these annual reports by no later than March 1st of the following year.
(1) Facility types covered by reports. EPA must produce, at a
minimum, Annual Summary Reports for the following universes:
Individually-permitted NPDES-regulated entities; all other NPDES-
regulated entities that are not individually permitted; Clean Water Act
point sources that had unauthorized discharge(s) of pollutants to waters
of the US; and a combined report that includes totals across all three
reports above. Individually-permitted facilities are defined in this
subsection as those permits that are unique to the permittee, that
include permitted effluent limits, and require the submission of
discharge monitoring reports.
(2) Content of reports. Reports must include applicable data for
NPDES-regulated entities:
(i) The number of NPDES permittees;
(ii) The number inspected by on-site inspections;
(iii) The number reviewed in which permitted limits were compared to
measured data to determine violations;
(iv) The number evaluated by other, off-site compliance monitoring
activities;
(v) The number with any violations;
(vi) The number with Category I violations;
(vii) The number receiving paper or electronic written informal
enforcement actions;
(viii) The total number receiving formal enforcement actions with a
compliance schedule;
(ix) The total number receiving a penalty assessment;
(x) The total amount of penalties assessed; and
(xi) The number of permit modifications extending compliance
deadlines more than one year.
(c) Schedule for producing NNCR quarterly information. (1) The
Director has until 45 days from the end of the calendar quarter to
update or correct NPDES data submissions in EPA's national NPDES data
system for events that occurred within that calendar quarter covered by
the NNCR.
(2) EPA must publish the NNCR in electronic form to be easily
accessible and available to the public within two months after the end
date of the calendar quarter:
EPA Schedule for Quarterly NNCR
------------------------------------------------------------------------
EPA NNCR publication date for
Calendar quarter calendar quarter
------------------------------------------------------------------------
January, February, March................ May 31.
April, May, June........................ August 31.
July, August, September................. November 30.
October, November, and December......... Last Day in February.
------------------------------------------------------------------------
Appendix A to Sec. 123.45--Criteria for Category I Noncompliance
Reporting in the NPDES Program
This appendix describes the criteria for reporting Category I
violations of NPDES permit effluent limits in the NPDES non-compliance
report (NNCR) as specified under paragraph (a)(2)(C) of this section.
Any violation of an NPDES permit is a violation of the Clean Water Act
(CWA) for which the permittee is liable. As specified in paragraph
(a)(2) of this section, there are two categories of noncompliance, and
the table below indicates the thresholds for violations in Category I.
An agency's decision as to what enforcement action, if any, should be
taken in such cases, shall be based on an analysis of facts, legal
requirements, policy, and guidance.
Violations of Permit Effluent Limits
The categorization of permit effluent limits depends upon the
magnitude and/or frequency of the violation. Effluent violations shall
be evaluated on a parameter-by-parameter and outfall-by-outfall basis.
The criteria for reporting effluent violations are as follows:
a. Reporting Criteria for Category I Violations of Monthly Average
Permit Limits--Magnitude and Frequency
Violations of monthly average effluent limits which exceed or equal
the product of
[[Page 319]]
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 NNCR if the monthly
average permit limits are exceeded any four months in a six-month
period. These criteria apply to all Group I and Group II pollutants.
Group I Pollutants--TRC=1.4
Oxygen Demand
Biochemical Oxygen Demand
Chemical Oxygen Demand
Total Oxygen Demands
Total Organic Carbon
Other
Solids
Total Suspended Solids (Residues)
Total Dissolved Solids (Residues)
Other
Nutrients
Inorganic Phosphorus Compounds
Inorganic Nitrogen Compounds
Other
Detergents and Oils
MBAS
NTA
Oil and Grease
Other detergents or algicides
Minerals
Calcium
Chloride
Fluoride
Magnesium
Sodium
Potassium
Sulfur
Sulfate
Total Alkalinity
Total Hardness
Other Minerals
Metals
Aluminum
Cobalt
Iron
Vanadium
Group II Pollutants--TRC=1.2
Metals (all forms)
Other metals not specifically listed under Group I
Inorganic
Cyanide
Total Residual Chlorine
Organics
All organics are Group II except those specifically listed under
Group I.
[80 FR 64100, Oct. 22, 2015]
Sec. 123.46 Individual control strategies.
(a) Not later than February 4, 1989, each State shall submit to the
Regional Administrator for review, approval, and implementation an
individual control strategy for each point source identified by the
State pursuant to section 304(l)(1)(C) of the Act which discharges to a
water identified by the State pursuant to section 304(l)(1)(B) which
will produce a reduction in the discharge of toxic pollutants from the
point sources identified under section 304(l)(1)(C) through the
establishment of effluent limitations under section 402 of the CWA and
water quality standards under section 303(c)(2)(B) of the CWA, which
reduction is sufficient, in combination with existing controls on point
and nonpoint sources of pollution, to achieve the applicable water
quality standard as soon as possible, but not later than three years
after the date of establishment of such strategy.
(b) The Administrator shall approve or disapprove the control
strategies submitted by any State pursuant to paragraph (a) of this
section, not later than June 4, 1989. If a State fails to submit control
strategies in accordance with paragraph (a) of this section or the
Administrator does not approve the control strategies submitted by such
State in accordance with paragraph (a), then, not later than June 4,
1990, the Administrator in cooperation with such State and after notice
and opportunity for public comment, shall implement the requirements of
CWA section 304(l)(1) in such State. In the implementation of such
requirements, the Administrator shall, at a minimum, consider for
listing under CWA section 304(l)(1) any navigable waters for which any
person submits a petition to the Administrator for listing not later
than October 1, 1989.
(c) For the purposes of this section the term individual control
strategy, as set forth in section 304(l) of the CWA, means a final NPDES
permit with supporting documentation showing that effluent limits are
consistent with an approved wasteload allocation, or other documentation
which shows
[[Page 320]]
that applicable water quality standards will be met not later than three
years after the individual control strategy is established. Where a
State is unable to issue a final permit on or before February 4, 1989,
an individual control strategy may be a draft permit with an attached
schedule (provided the State meets the schedule for issuing the final
permit) indicating that the permit will be issued on or before February
4, 1990. If a point source is subject to section 304(l)(1)(C) of the CWA
and is also subject to an on-site response action under sections 104 or
106 of the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (CERCLA), (42 U.S.C. 9601 et seq.), an individual
control strategy may be the decision document (which incorporates the
applicable or relevant and appropriate requirements under the CWA)
prepared under sections 104 or 106 of CERCLA to address the release or
threatened release of hazardous substances to the environment.
(d) A petition submitted pursuant to section 304(l)(3) of the CWA
must be submitted to the appropriate Regional Administrator. Petitions
must identify a waterbody in sufficient detail so that EPA is able to
determine the location and boundaries of the waterbody. The petition
must also identify the list or lists for which the waterbody qualifies,
and the petition must explain why the waterbody satisfies the criteria
for listing under CWA section 304(l) and 40 CFR 130.10(d)(6).
(e) If the Regional Administrator disapproves one or more individual
control strategies, or if a State fails to provide adequate public
notice and an opportunity to comment on the ICSs, then, not later than
June 4, 1989, the Regional Administrator shall give a notice of approval
or disapproval of the individual control strategies submitted by each
State pursuant to this section as follows:
(1) The notice of approval or disapproval given under this paragraph
shall include the following:
(i) The name and address of the EPA office that reviews the State's
submittals.
(ii) A brief description of the section 304(l) process.
(iii) A list of ICSs disapproved under this section and a finding
that the ICSs will not meet all applicable review criteria under this
section and section 304(l) of the CWA.
(iv) If the Regional Administrator determines that a State did not
provide adequate public notice and an opportunity to comment on the
waters, point sources, or ICSs prepared pursuant to section 304(l), or
if the Regional Administrator chooses to exercise his or her discretion,
a list of the ICSs approved under this section, and a finding that the
ICSs satisfy all applicable review criteria.
(v) The location where interested persons may examine EPA's records
of approval and disapproval.
(vi) The name, address, and telephone number of the person at the
Regional Office from whom interested persons may obtain more
information.
(vii) Notice that written petitions or comments are due within 120
days.
(2) The Regional Administrator shall provide the notice of approval
or disapproval given under this paragraph to the appropriate State
Director. The Regional Administrator shall publish a notice of
availability, in a daily or weekly newspaper with State-wide circulation
or in the Federal Register, for the notice of approval or disapproval.
The Regional Administrator shall also provide written notice to each
discharger identified under section 304(l)(1)(C), that EPA has listed
the discharger under section 304(l)(1)(C).
(3) As soon as practicable but not later than June 4, 1990, the
Regional Offices shall issue a response to petitions or comments
received under section 304(l). The response to comments shall be given
in the same manner as 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)
[[Page 321]]
of the CWA, using the applicable criteria set forth in section 304(l) of
the CWA, and in 40 CFR part 122, including Sec. 122.44(d). At any time
after the Regional Administrator disapproves an ICS (or conditionally
aproves a draft permit as an ICS), the Regional Office may submit a
written notification to the State that the Regional Office intends to
issue the ICS. Upon mailing the notification, and notwithstanding any
other regulation, exclusive authority to issue the permit passes to EPA.
[54 FR 256, Jan. 4, 1989, as amended at 54 FR 23896, June 2, 1989; 57 FR
33049, July 24, 1992]
Subpart D_Program Approval, Revision, and Withdrawal
Sec. 123.61 Approval process.
(a) After determining that a State program submission is complete,
EPA shall publish notice of the State's application in the Federal
Register, and in enough of the largest newspapers in the State to
attract statewide attention, and shall mail notice to persons known to
be interested in such matters, including all persons on appropriate
State and EPA mailing lists and all permit holders and applicants within
the State. The notice shall:
(1) Provide a comment period of not less than 45 days during which
interested members of the public may express their views on the State
program;
(2) Provide for a public hearing within the State to be held no less
than 30 days after notice is published in the Federal Register;
(3) Indicate the cost of obtaining a copy of the State's submission;
(4) Indicate where and when the State's submission may be reviewed
by the public;
(5) Indicate whom an interested member of the public should contact
with any questions; and
(6) Briefly outline the fundamental aspects of the State's proposed
program, and the process for EPA review and decision.
(b) Within 90 days of the receipt of a complete program submission
under Sec. 123.21 the Administrator shall approve or disapprove the
program based on the requirements of this part and of CWA and taking
into consideration all comments received. A responsiveness summary shall
be prepared by the Regional Office which identifies the public
participation activities conducted, describes the matters presented to
the public, summarizes significant comments received and explains the
Agency's response to these comments.
(c) If the Administrator approves the State's program he or she
shall notify the State and publish notice in the Federal Register. The
Regional Administrator shall suspend the issuance of permits by EPA as
of the date of program approval.
(d) If the Administrator disapproves the State program he or she
shall notify the State of the reasons for disapproval and of any
revisions or modifications to the State program which are necessary to
obtain approval.
[48 FR 14178, Apr. 1, 1983; 50 FR 6941, Feb. 19, 1985]
Sec. 123.62 Procedures for revision of State programs.
(a) Either EPA or the approved State may initiate program revision.
Program revision may be necessary when the controlling Federal or State
statutory or regulatory authority is modified or supplemented. The State
shall keep EPA fully informed of any proposed modifications to its basic
statutory or regulatory authority, its forms, procedures, or priorities.
Grounds for program revision include cases where a State's existing
approved program includes authority to issue NPDES permits for
activities on a Federal Indian reservation and an Indian Tribe has
subsequently been approved for assumption of the NPDES program under 40
CFR part 123 extending to those lands.
(b) Revision of a State program shall be accomplished as follows:
(1) The State shall submit a modified program description, Attorney
General's statement, Memorandum of Agreement, or such other documents as
EPA determines to be necessary under the circumstances.
(2) Whenever EPA determines that the proposed program revision is
substantial, EPA shall issue public notice and provide an opportunity to
comment for a period of at least 30 days.
[[Page 322]]
The public notice shall be mailed to interested persons and shall be
published in the Federal Register and in enough of the largest
newspapers in the State to provide Statewide coverage. The public notice
shall summarize the proposed revisions and provide for the opportunity
to request a public hearing. Such a hearing will be held if there is
significant public interest based on requests received.
(3) The Administrator will approve or disapprove program revisions
based on the requirements of this part (or, in the case of a sewage
sludge management program, 40 CFR part 501) and of the CWA.
(4) A program revision shall become effective upon the approval of
the Administrator. Notice of approval of any substantial revision shall
be published in the Federal Register. Notice of approval of non-
substantial program revisions may be given by a letter from the
Administrator to the State Governor or his designee.
(c) States with approved programs must notify EPA whenever they
propose to transfer all or part of any program from the approved State
agency to any other State agency, and must identify any new division of
responsibilities among the agencies involved. The new agency is not
authorized to administer the program until approved by the Administrator
under paragraph (b) of this section. Organizational charts required
under Sec. 123.22(b) (or, in the case of a sewage sludge management
program, Sec. 501.12(b) of this chapter) must be revised and
resubmitted.
(d) Whenever the Administrator has reason to believe that
circumstances have changed with respect to a State program, he may
request, and the State shall provide, a supplemental Attorney General's
statement, program description, or such other documents or information
as are necessary.
(e) State NPDES programs only. All new programs must comply with
these regulations immediately upon approval. Any approved State section
402 permit program which requires revision to conform to this part shall
be so revised within one year of the date of promulgation of these
regulations, unless a State must amend or enact a statute in order to
make the required revision in which case such revision shall take place
within 2 years, except that revision of State programs to implement the
requirements of 40 CFR part 403 (pretreatment) shall be accomplished as
provided in 40 CFR 403.10. In addition, approved States shall submit,
within 6 months, copies of their permit forms for EPA review and
approval. Approved States shall also assure that permit applicants,
other than POTWs, submit, as part of their application, the information
required under Sec. Sec. 124.4(d) and 122.21 (g) or (h), as
appropriate.
(f) Revision of a State program by a Great Lakes State or Tribe (as
defined in 40 CFR 132.2) to conform to section 118 of the CWA and 40 CFR
part 132 shall be accomplished pursuant to 40 CFR part 132.
[48 FR 14178, Apr. 1, 1983, as amended at 49 FR 31842, Aug. 8, 1984; 50
FR 6941, Feb. 19, 1985; 53 FR 33007, Sept. 6, 1988; 58 FR 67983, Dec.
22, 1993; 60 FR 15386, Mar. 23, 1995; 63 FR 45123, Aug. 24, 1998]
Sec. 123.63 Criteria for withdrawal of State programs.
(a) In the case of a sewage sludge management program, references in
this section to ``this part'' will be deemed to refer to 40 CFR part
501. The Administrator may withdraw program approval when a State
program no longer complies with the requirements of this part, and the
State fails to take corrective action. Such circumstances include the
following:
(1) Where the State's legal authority no longer meets the
requirements of this part, including:
(i) Failure of the State to promulgate or enact new authorities when
necessary; or
(ii) Action by a State legislature or court striking down or
limiting State authorities.
(2) Where the operation of the State program fails to comply with
the requirements of this part, including:
(i) Failure to exercise control over activities required to be
regulated under this part, including failure to issue permits;
(ii) Repeated issuance of permits which do not conform to the
requirements of this part; or
[[Page 323]]
(iii) Failure to comply with the public participation requirements
of this part.
(3) Where the State's enforcement program fails to comply with the
requirements of this part, including:
(i) Failure to act on violations of permits or other program
requirements;
(ii) Failure to seek adequate enforcement penalties or to collect
administrative fines when imposed; or
(iii) Failure to inspect and monitor activities subject to
regulation.
(4) Where the State program fails to comply with the terms of the
Memorandum of Agreement required under Sec. 123.24 (or, in the case of
a sewage sludge management program, Sec. 501.14 of this chapter).
(5) Where the State fails to develop an adequate regulatory program
for developing water quality-based effluent limits in NPDES permits.
(6) Where a Great Lakes State or Tribe (as defined in 40 CFR 132.2)
fails to adequately incorporate the NPDES permitting implementation
procedures promulgated by the State, Tribe, or EPA pursuant to 40 CFR
part 132 into individual permits.
(b) [Reserved]
[48 FR 14178, Apr. 1, 1983; 50 FR 6941, Feb. 19, 1985, as amended at 54
FR 23897, June 2, 1989; 60 FR 15386, Mar. 23, 1995; 63 FR 45123, Aug.
24, 1998]
Sec. 123.64 Procedures for withdrawal of State programs.
(a) A State with a program approved under this part (or, in the case
of a sewage sludge management program, 40 CFR part 501) may voluntarily
transfer program responsibilities required by Federal law to EPA by
taking the following actions, or in such other manner as may be agreed
upon with the Administrator.
(1) The State shall give the Administrator 180 days notice of the
proposed transfer and shall submit a plan for the orderly transfer of
all relevant program information not in the possession of EPA (such as
permits, permit files, compliance files, reports, permit applications)
which are necessary for EPA to administer the program.
(2) Within 60 days of receiving the notice and transfer plan, the
Administrator shall evaluate the State's transfer plan and shall
identify any additional information needed by the Federal government for
program administration and/or identify any other deficiencies in the
plan.
(3) At least 30 days before the transfer is to occur the
Administrator shall publish notice of the transfer in the Federal
Register and in enough of the largest newspapers in the State to provide
Statewide coverage, and shall mail notice to all permit holders, permit
applicants, other regulated persons and other interested persons on
appropriate EPA and State mailing lists.
(b) The following procedures apply when the Administrator orders the
commencement of proceedings to determine whether to withdraw approval of
a State program.
(1) Order. The Administrator may order the commencement of
withdrawal proceedings on his or her own initiative or in response to a
petition from an interested person alleging failure of the State to
comply with the requirements of this part as set forth in Sec. 123.63
(or, in the case of a sewage sludge management program, Sec. 501.33 of
this chapter). The Administrator will respond in writing to any petition
to commence withdrawal proceedings. He may conduct an informal
investigation of the allegations in the petition to determine whether
cause exists to commence proceedings under this paragraph. The
Administrator's order commencing proceedings under this paragraph will
fix a time and place for the commencement of the hearing and will
specify the allegations against the State which are to be considered at
the hearing. Within 30 days the State must admit or deny these
allegations in a written answer. The party seeking withdrawal of the
State's program will have the burden of coming forward with the evidence
in a hearing under this paragraph.
(2) Definitions. For purposes of this paragraph the definitions of
``Act,'' ``Administrative Law Judge,'' ``Hearing Clerk,'' and
``Presiding Officer'' in 40 CFR 22.03 apply in addition to the
following:
(i) Party means the petitioner, the State, the Agency, and any other
person whose request to participate as a party is granted.
[[Page 324]]
(ii) Person means the Agency, the State and any individual or
organization having an interest in the subject matter of the proceeding.
(iii) Petitioner means any person whose petition for commencement of
withdrawal proceedings has been granted by the Administrator.
(3) Procedures. (i) The following provisions of 40 CFR part 22
(Consolidated Rules of Practice) are applicable to proceedings under
this paragraph:
(A) Sec. 22.02--(use of number/gender);
(B) Sec. 22.04(c)--(authorities of Presiding Officer);
(C) Sec. 22.06--(filing/service of rulings and orders);
(D) Sec. 22.09--(examination of filed documents);
(E) Sec. 22.19(a), (b) and (c)--(prehearing conference);
(F) Sec. 22.22--(evidence);
(G) Sec. 22.23--(objections/offers of proof);
(H) Sec. 22.25--(filing the transcript); and
(I) Sec. 22.26--(findings/conclusions).
(ii) The following provisions are also applicable:
(A) Computation and extension of time--(1) Computation. In computing
any period of time prescribed or allowed in these rules of practice,
except as otherwise provided, the day of the event from which the
designated period begins to run shall not be included. Saturdays,
Sundays, and Federal legal holidays shall be included. When a stated
time expires on a Saturday, Sunday, or legal holiday, the stated time
period shall be extended to include the next business day.
(2) Extensions of time. The Administrator, Regional Administrator,
or Presiding Officer, as appropriate, may grant an extension of time for
the filing of any pleading, document, or motion (i) upon timely motion
of a party to the proceeding, for good cause shown, and after
consideration of prejudice to other parties, or (ii) upon his own
motion. Such a motion by a party may only be made after notice to all
other parties, unless the movant can show good cause why serving notice
is impracticable. The motion shall be filed in advance of the date on
which the pleading, document or motion is due to be filed, unless the
failure of a party to make timely motion for extension of time was the
result of excusable neglect.
(3) The time for commencement of the hearing shall not be extended
beyond the date set in the Administrator's order without approval of the
Administrator.
(B) Ex parte discussion of proceedings. At no time after the
issuance of the order commencing proceedings shall the Administrator,
the Regional Administrator, the Regional Judicial Officer, the Presiding
Officer, or any other person who is likely to advise these officials in
the decision on the case, discuss ex parte the merits of the proceeding
with any interested person outside the Agency, with any Agency staff
member who performs a prosecutorial or investigative function in such
proceeding or a factually related proceeding, or with any representative
of such person. Any ex parte memorandum or other communication addressed
to the Administrator, the Regional Administrator, the Regional Judicial
Officer, or the Presiding Officer during the pendency of the proceeding
and relating to the merits thereof, by or on behalf of any party, shall
be regarded as argument made in the proceeding and shall be served upon
all other parties. The other parties shall be given an opportunity to
reply to such memorandum or communication.
(C) Intervention--(1) Motion. A motion for leave to intervene in any
proceeding conducted under these rules of practice must set forth the
grounds for the proposed intervention, the position and interest of the
movant and the likely impact that intervention will have on the
expeditious progress of the proceeding. Any person already a party to
the proceeding may file an answer to a motion to intervene, making
specific reference to the factors set forth in the foregoing sentence
and paragraph (b)(3)(ii)(C)(3) of this section, within ten (10) days
after service of the motion for leave to intervene.
(2) However, motions to intervene must be filed within 15 days from
the date the notice of the Administrator's order is first published.
(3) Disposition. Leave to intervene may be granted only if the
movant demonstrates that (i) his presence in
[[Page 325]]
the proceeding would not unduly prolong or otherwise prejudice that
adjudication of the rights of the original parties; (ii) the movant will
be adversely affected by a final order; and (iii) the interests of the
movant are not being adequately represented by the original parties. The
intervenor shall become a full party to the proceeding upon the granting
of leave to intervene.
(4) Amicus curiae. Persons not parties to the proceeding who wish to
file briefs may so move. The motion shall identify the interest of the
applicant and shall state the reasons why the proposed amicus brief is
desirable. If the motion is granted, the Presiding Officer or
Administrator shall issue an order setting the time for filing such
brief. An amicus curiae is eligible to participate in any briefing after
his motion is granted, and shall be served with all briefs, reply
briefs, motions, and orders relating to issues to be briefed.
(D) Motions--(1) General. All motions, except those made orally on
the record during a hearing, shall (i) be in writing; (ii) state the
grounds therefor with particularity; (iii) set forth the relief or order
sought; and (iv) be accompanied by any affidavit, certificate, other
evidence, or legal memorandum relied upon. Such motions shall be served
as provided by paragraph (b)(4) of this section.
(2) Response to motions. A party's response to any written motion
must be filed within ten (10) days after service of such motion, unless
additional time is allowed for such response. The response shall be
accompanied by any affidavit, certificate, other evidence, or legal
memorandum relied upon. If no response is filed within the designated
period, the parties may be deemed to have waived any objection to the
granting of the motion. The Presiding Officer, Regional Administrator,
or Administrator, as appropriate, may set a shorter time for response,
or make such other orders concerning the disposition of motions as they
deem appropriate.
(3) Decision. The Administrator shall rule on all motions filed or
made after service of the recommended decision upon the parties. The
Presiding Officer shall rule on all other motions. Oral argument on
motions will be permitted where the Presiding Officer, Regional
Administrator, or the Administrator considers it necessary or desirable.
(4) Record of proceedings. (i) The hearing shall be either
stenographically reported verbatim or tape recorded, and thereupon
transcribed by an official reporter designated by the Presiding Officer;
(ii) All orders issued by the Presiding Officer, transcripts of
testimony, written statements of position, stipulations, exhibits,
motions, briefs, and other written material of any kind submitted in the
hearing shall be a part of the record and shall be available for
inspection or copying in the Office of the Hearing Clerk, upon payment
of costs. Inquiries may be made at the Office of the Administrative Law
Judges, Hearing Clerk, 1200 Pennsylvania Ave., NW., Washington, DC
20460;
(iii) Upon notice to all parties the Presiding Officer may authorize
corrections to the transcript which involves matters of substance;
(iv) An original and two (2) copies of all written submissions to
the hearing shall be filed with the Hearing Clerk;
(v) A copy of each submission shall be served by the person making
the submission upon the Presiding Officer and each party of record.
Service under this paragraph shall take place by mail or personal
delivery;
(vi) Every submission shall be accompanied by an acknowledgement of
service by the person served or proof of service in the form of a
statement of the date, time, and manner of service and the names of the
persons served, certified by the person who made service, and;
(vii) The Hearing Clerk shall maintain and furnish to any person
upon request, a list containing the name, service address, and telephone
number of all parties and their attorneys or duly authorized
representatives.
(5) Participation by a person not a party. A person who is not a
party may, in the discretion of the Presiding Officer, be permitted to
make a limited appearance by making oral or written statement of his/her
position on the issues within such limits and on such
[[Page 326]]
conditions as may be fixed by the Presiding Officer, but he/she may not
otherwise participate in the proceeding.
(6) Rights of parties. (i) All parties to the proceeding may:
(A) Appear by counsel or other representative in all hearing and
pre-hearing proceedings;
(B) Agree to stipulations of facts which shall be made a part of the
record.
(7) Recommended decision. (i) Within 30 days after the filing of
proposed findings and conclusions, and reply briefs, the Presiding
Officer shall evaluate the record before him/her, the proposed findings
and conclusions and any briefs filed by the parties and shall prepare a
recommended decision, and shall certify the entire record, including the
recommended decision, to the Administrator.
(ii) Copies of the recommended decision shall be served upon all
parties.
(iii) Within 20 days after the certification and filing of the
record and recommended decision, all parties may file with the
Administrator exceptions to the recommended decision and a supporting
brief.
(8) Decision by Administrator. (i) Within 60 days after the
certification of the record and filing of the Presiding Officer's
recommeded decision, the Administrator shall review the record before
him and issue his own decision.
(ii) If the Administrator concludes that the State has administered
the program in conformity with the appropriate Act and regulations his
decision shall constitute ``final agency action'' within the meaning of
5 U.S.C. 704.
(iii) If the Administrator concludes that the State has not
administered the program in conformity with the appropriate Act and
regulations he shall list the deficiencies in the program and provide
the State a reasonable time, not to exceed 90 days, to take such
appropriate corrective action as the Administrator determines necessary.
(iv) Within the time prescribed by the Administrator the State shall
take such appropriate corrective action as required by the Administrator
and shall file with the Administrator and all parties a statement
certified by the State Director that such appropriate corrective action
has been taken.
(v) The Administrator may require a further showing in addition to
the certified statement that corrective action has been taken.
(vi) If the State fails to take such appropriate corrective action
and file a certified statement thereof within the time prescribed by the
Administrator, the Administrator shall issue a supplementary order
withdrawing approval of the State program. If the State takes such
appropriate corrective action, the Administrator shall issue a
supplementary order stating that approval of authority is not withdrawn.
(vii) The Administrator's supplementary order shall constitute final
Agency action within the meaning of 5 U.S.C. 704.
(viii) Withdrawal of authorization under this section and the
appropriate Act does not relieve any person from complying with the
requirements of State law, nor does it affect the validity of actions by
the State prior to withdrawal.
[48 FR 14178, Apr. 1, 1983; 50 FR 6941, Feb. 19, 1985, as amended at 57
FR 5335, Feb. 13, 1992; 63 FR 45123, Aug. 24, 1998]
PART 124_PROCEDURES FOR DECISIONMAKING--Table of Contents
Subpart A_General Program Requirements
Sec.
124.1 Purpose and scope.
124.2 Definitions.
124.3 Application for a permit.
124.4 Consolidation of permit processing.
124.5 Modification, revocation and reissuance, or termination of
permits.
124.6 Draft permits.
124.7 Statement of basis.
124.8 Fact sheet.
124.9 Administrative record for draft permits when EPA is the permitting
authority.
124.10 Public notice of permit actions and public comment period.
124.11 Public comments and requests for public hearings.
124.12 Public hearings.
124.13 Obligation to raise issues and provide information during the
public comment period.
124.14 Reopening of the public comment period.
124.15 Issuance and effective date of permit.
124.16 Stays of contested permit conditions.
124.17 Response to comments.
[[Page 327]]
124.18 Administrative record for final permit when EPA is the permitting
authority.
124.19 Appeal of RCRA, UIC, NPDES and PSD Permits.
124.20 Computation of time.
124.21 Effective date of part 124.
Subpart B_Specific Procedures Applicable to RCRA Permits
124.31 Pre-application public meeting and notice.
124.32 Public notice requirements at the application stage.
124.33 Information repository.
Subpart C_Specific Procedures Applicable to PSD Permits
124.41 Definitions applicable to PSD permits.
124.42 Additional procedures for PSD permits affecting Class I areas.
Subpart D_Specific Procedures Applicable to NPDES Permits
124.51 Purpose and scope.
124.52 Permits required on a case-by-case basis.
124.53 State certification.
124.54 Special provisions for State certification and concurrence on
applications for section 301(h) variances.
124.55 Effect of State certification.
124.56 Fact sheets.
124.57 Public notice.
124.58 [Reserved]
124.59 Conditions requested by the Corps of Engineers and other
government agencies.
124.60 Issuance and effective date and stays of NPDES permits.
124.61 Final environmental impact statement.
124.62 Decision on variances.
124.63 Procedures for variances when EPA is the permitting authority.
124.64 Appeals of variances.
124.65 [Reserved]
124.66 Special procedures for decisions on thermal variances under
section 316(a).
Subparts E-F [Reserved]
Subpart G_Procedures for RCRA Standardized Permit
General Information About Standardized Permits
124.200 What is a RCRA standardized permit?
124.201 Who is eligible for a standardized permit?
Applying for a Standardized Permit
124.202 How do I as a facility owner or operator apply for a
standardized permit?
124.203 How may I switch from my individual RCRA permit to a
standardized permit?
Issuing a Standardized Permit
124.204 What must I do as the Director of the regulatory agency to
prepare a draft standardized permit?
124.205 What must I do as the Director of the regulatory agency to
prepare a final standardized permit?
124.206 In what situations may I require a facility owner or operator to
apply for an individual permit?
Opportunities for Public Involvement in the Standardized Permit Process
124.207 What are the requirements for public notices?
124.208 What are the opportunities for public comments and hearings on
draft permit decisions?
124.209 What are the requirements for responding to comments?
124.210 May I, as an interested party in the permit process, appeal a
final standardized permit?
Maintaining a Standardized Permit
124.211 What types of changes may I make to my standardized permit?
124.212 What procedures must I follow to make routine changes?
124.213 What procedures must I follow to make routine changes with prior
approval?
124.214 What procedures must I follow to make significant changes?
Authority: Resource Conservation and Recovery Act, 42 U.S.C. 6901 et
seq.; Safe Drinking Water Act, 42 U.S.C. 300f et seq.; Clean Water Act,
33 U.S.C. 1251 et seq.; Clean Air Act, 42 U.S.C. 7401 et seq.
Source: 48 FR 14264, Apr. 1, 1983, unless otherwise noted.
Subpart A_General Program Requirements
Sec. 124.1 Purpose and scope.
(a) This part contains EPA procedures for issuing, modifying,
revoking and reissuing, or terminating all RCRA, UIC, PSD and NPDES
``permits'' (including ``sludge-only'' permits issued pursuant to Sec.
122.1(b)(2) of this chapter. The latter kinds of permits are governed by
part 270. RCRA interim status and UIC authorization by
[[Page 328]]
rule are not ``permits'' and are covered by specific provisions in parts
144, subpart C, and 270. This part also does not apply to permits
issued, modified, revoked and reissued or terminated by the Corps of
Engineers. Those procedures are specified in 33 CFR parts 320-327. The
procedures of this part also apply to denial of a permit for the active
life of a RCRA hazardous waste management facility or unit under Sec.
270.29.
(b) Part 124 is organized into five subparts. Subpart A contains
general procedural requirements applicable to all permit programs
covered by these provisions. Subparts B through D and Subpart G
supplement these general provisions with requirements that apply to only
one or more of the programs. Subpart A describes the steps EPA will
follow in receiving permit applications, preparing draft permits,
issuing public notice, inviting public comment and holding public
hearings on draft permits. Subpart A also covers assembling an
administrative record, responding to comments, issuing a final permit
decision, and allowing for administrative appeal of the final permit
decisions. Subpart B contains public participation requirements
applicable to all RCRA hazardous waste management facilities. Subpart C
contains definitions and specific procedural requirements for PSD
permits. Subpart D contains specific procedural requirements for NPDES
permits. Subpart G contains specific procedural requirements for RCRA
standardized permits, which, in some instances, change how the General
Program Requirements of subpart A apply in the context of the RCRA
standardized permit.
(c) Part 124 offers an opportunity for public hearings (see Sec.
124.12).
(d) This part is designed to allow permits for a given facility
under two or more of the listed programs to be processed separately or
together at the choice of the Regional Administrator. This allows EPA to
combine the processing of permits only when appropriate, and not
necessarily in all cases. The Regional Administrator may consolidate
permit processing when the permit applications are submitted, when draft
permits are prepared, or when final permit decisions are issued. This
part also allows consolidated permits to be subject to a single public
hearing under Sec. 124.12. Permit applicants may recommend whether or
not their applications should be consolidated in any given case.
(e) Certain procedural requirements set forth in part 124 must be
adopted by States in order to gain EPA approval to operate RCRA, UIC,
NPDES, and 404 permit programs. These requirements are listed in
Sec. Sec. 123.25 (NPDES), 145.11 (UIC), 233,26 (404), and 271.14 (RCRA)
and signaled by the following words at the end of the appropriate part
124 section or paragraph heading: (applicable to State programs see
Sec. Sec. 123.25 (NPDES), 145.11 (UIC), 233.26 (404), and 271.14
(RCRA)). Part 124 does not apply to PSD permits issued by an approved
State.
(f) To coordinate decisionmaking when different permits will be
issued by EPA and approved State programs, this part allows applications
to be jointly processed, joint comment periods and hearings to be held,
and final permits to be issued on a cooperative basis whenever EPA and a
State agree to take such steps in general or in individual cases. These
joint processing agreements may be provided in the Memorandum of
Agreement developed under Sec. Sec. 123.24 (NPDES), 145.24 (UIC),
233.24 (404), and 271.8 (RCRA).
[48 FR 14264, Apr. 1, 1983, as amended at 54 FR 9607, Mar. 7, 1989; 54
FR 18785, May 2, 1989; 65 FR 30910, May 15, 2000; 70 FR 53448, Sept. 8,
2005]
Sec. 124.2 Definitions.
(a) In addition to the definitions given in Sec. Sec. 122.2 and
123.2 (NPDES), 501.2 (sludge management), 144.3 and 145.2 (UIC), 233.3
(404), and 270.2 and 271.2 (RCRA), the definitions below apply to this
part, except for PSD permits which are governed by the definitions in
Sec. 124.41. Terms not defined in this section have the meaning given
by the appropriate Act.
Administrator means the Administrator of the U.S. Environmental
Protection Agency, or an authorized representative.
Application means the EPA standard national forms for applying for a
permit, including any additions, revisions or modifications to the
forms; or forms
[[Page 329]]
approved by EPA for use in ``approved States,'' including any approved
modifications or revisions. For RCRA, application also includes the
information required by the Director under Sec. Sec. 270.14 through
270.29 [contents of Part B of the RCRA application].
Appropriate Act and regulations means the Clean Water Act (CWA); the
Solid Waste Disposal Act, as amended by the Resource Conservation
Recovery Act (RCRA); or Safe Drinking Water Act (SDWA), whichever is
applicable; and applicable regulations promulgated under those statutes.
In the case of an ``approved State program'' appropriate Act and
regulations includes program requirements.
CWA means the Clean Water Act (formerly referred to as the Federal
Water Pollution Control Act of Federal Pollution Control Act Amendments
of 1972) Public Law 92-500, as amended by Public Law 95-217 and Public
Law 95-576; 33 U.S.C. 1251 et seq.
Director means the Regional Administrator, the State director or the
Tribal director as the context requires, or an authorized
representative. When there is no approved State or Tribal program, and
there is an EPA administered program, Director means the Regional
Administrator. When there is an approved State or Tribal program,
``Director'' normally means the State or Tribal director. In some
circumstances, however, EPA retains the authority to take certain
actions even when there is an approved State or Tribal program. (For
example, when EPA has issued an NPDES permit prior to the approval of a
State program, EPA may retain jurisdiction over that permit after
program approval; see Sec. 123.1) In such cases, the term ``Director''
means the Regional Administrator and not the State or Tribal director.
Draft permit means a document prepared under Sec. 124.6 indicating
the Director's tentative decision to issue or deny, modify, revoke and
reissue, terminate, or reissue a ``permit.'' A notice of intent to
terminate a permit and a notice of intent to deny a permit as discussed
in Sec. 124.5, are types of ``draft permits.'' A denial of a request
for modification, revocation and reissuance or termination, as discussed
in Sec. 124.5, is not a ``draft permit.'' A ``proposal permit'' is not
a ``draft permit.''
Environmental Appeals Board shall mean the Board within the Agency
described in Sec. 1.25(e) of this title. The Administrator delegates
authority to the Environmental Appeals Board to issue final decisions in
RCRA, PSD, UIC, or NPDES permit appeals filed under this subpart,
including informal appeals of denials of requests for modification,
revocation and reissuance, or termination of permits under Section
124.5(b). An appeal directed to the Administrator, rather than to the
Environmental Appeals Board, will not be considered. This delegation
does not preclude the Environmental Appeals Board from referring an
appeal or a motion under this subpart to the Administrator when the
Environmental Appeals Board, in its discretion, deems it appropriate to
do so. When an appeal or motion is referred to the Administrator by the
Environmental Appeals Board, all parties shall be so notified and the
rules in this subpart referring to the Environmental Appeals Board shall
be interpreted as referring to the Administrator.
EPA (``EPA'') means the United States ``Environmental Protection
Agency.''
Facility or activity means any ``HWM facility,'' UIC ``injection
well,'' NPDES ``point source'' or ``treatment works treating domestic
sewage'' or State 404 dredge or fill activity, or any other facility or
activity (including land or appurtenances thereto) that is subject to
regulation under the RCRA, UIC, NPDES, or 404 programs.
Federal Indian reservation (in the case of NPDES) means all land
within the limits of any Indian reservation under the jurisdiction of
the United States Government, notwithstanding the issuance of any
patent, and including rights-of-way running through the reservation.
General permit (NPDES and 404) means an NPDES or 404 ``permit''
authorizing a category of discharges or activities under the CWA within
a geographical area. For NPDES, a general permit means a permit issued
under Sec. 122.28. For 404, a general permit means a permit issued
under Sec. 233.37.
[[Page 330]]
Indian Tribe means (in the case of UIC) any Indian Tribe having a
federally recognized governing body carrying out substantial
governmental duties and powers over a defined area. For the NPDES
program, the term ``Indian Tribe'' means any Indian Tribe, band, group,
or community recognized by the Secretary of the Interior and exercising
governmental authority over a Federal Indian reservation.
Interstate agency means an agency of two or more States established
by or under an agreement or compact approved by the Congress, or any
other agency of two or more States having substantial powers or duties
pertaining to the control of pollution as determined and approved by the
Administrator under the ``appropriate Act and regulations.''
Major facility means any RCRA, UIC, NPDES, or 404 ``facility or
activity'' classified as such by the Regional Administrator, or, in the
case of ``approved State programs,'' the Regional Administrator in
conjunction with the State Director.
Owner or operator means owner or operator of any ``facility or
activity'' subject to regulation under the RCRA, UIC, NPDES, or 404
programs.
Permit means an authorization, license or equivalent control
document issued by EPA or an ``approved State'' to implement the
requirements of this part and parts 122, 123, 144, 145, 233, 270, and
271 of this chapter. ``Permit'' includes RCRA ``permit by rule'' (Sec.
270.60), RCRA standardized permit (Sec. 270.67), UIC area permit (Sec.
144.33), NPDES or 404 ``general permit'' (Sec. Sec. 270.61, 144.34, and
233.38). Permit does not include RCRA interim status (Sec. 270.70), UIC
authorization by rule (Sec. 144.21), or any permit which has not yet
been the subject of final agency action, such as a ``draft permit'' or a
``proposed permit.''
Person means an individual, association, partnership, corporation,
municipality, State, Federal, or Tribal agency, or an agency or employee
thereof.
RCRA means the Solid Waste Disposal Act as amended by the Resource
Conservation and Recovery Act of 1976 (Pub. L. 94-580, as amended by
Pub. L. 95-609, 42 U.S.C. 6901 et seq).
Regional Administrator means the Regional Administrator of the
appropriate Regional Office of the Environmental Protection Agency or
the authorized representative of the Regional Administrator.
Schedule of compliance means a schedule of remedial measures
included in a ``permit,'' including an enforceable sequence of interim
requirements (for example, actions, operations, or milestone events)
leading to compliance with the ``appropriate Act and regulations.''
SDWA means the Safe Drinking Water Act (Pub. L. 95-523, as amended
by Pub. L. 95-1900; 42 U.S.C. 300f et seq).
Section 404 program or State 404 program or 404 means an ``approved
State program'' to regulate the ``discharge of dredged material'' and
the ``discharge of fill material'' under section 404 of the Clean Water
Act in ``State regulated waters.''
Site means the land or water area where any ``facility or activity''
is physically located or conducted, including adjacent land used in
connection with the facility or activity.
Standardized permit means a RCRA permit authorizing management of
hazardous waste issued under subpart G of this part and part 270,
subpart J. The standardized permit may have two parts: A uniform portion
issued in all cases and a supplemental portion issued at the Director's
discretion.
State means one of the States of the United States, the District of
Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam,
American Samoa, the Trust Territory of the Pacific Islands (except in
the case of RCRA), the Commonwealth of the Northern Mariana Islands, or
an Indian Tribe that meets the statutory criteria which authorize EPA to
treat the Tribe in a manner similar to that in which it treats a State
(except in the case of RCRA).
State Director means the chief administrative officer of any State,
interstate, or Tribal agency operating an approved program, or the
delegated representative of the State director. If the responsibility is
divided among two or more States, interstate, or Tribal agencies,
``State Director'' means the chief administrative officer of the
[[Page 331]]
State, interstate, or Tribal agency authorized to perform the particular
procedure or function to which reference is made.
State Director means the chief administrative officer of any State
or interstate agency operating an ``approved program,'' or the delegated
representative of the state Director. If responsibility is divided among
two or more State or interstate agencies, ``State Director'' means the
chief administrative officer of the State or interstate agency
authorized to perform the particular procedure or function to which
reference is made.
UIC means the Underground Injection Control program under Part C of
the Safe Drinking Water Act, including an ``approved program.''
(b) For the purposes of part 124, the term Director means the State
Director or Regional Administrator and is used when the accompanying
provision is required of EPA-administered programs and of State programs
under Sec. Sec. 123.25 (NPDES), 145.11 (UIC), 233.26 (404), and 271.14
(RCRA). The term Regional Administrator is used when the accompanying
provision applies exclusively to EPA-issued permits and is not
applicable to State programs under these sections. While States are not
required to implement these latter provisions, they are not precluded
from doing so, notwithstanding use of the term ``Regional
Administrator.''
[48 FR 14264, Apr. 1, 1983; 48 FR 30115, June 30, 1983, as amended at 49
FR 25981, June 25, 1984; 53 FR 37410, Sept. 26, 1988; 54 FR 18785, May
2, 1989; 57 FR 5335, Feb. 13, 1992; 57 FR 60129, Dec. 18, 1992; 58 FR
67983, Dec. 22, 1993; 59 FR 64343, Dec. 14, 1994; 65 FR 30910, May 15,
2000; 70 FR 53449, Sept. 8, 2005]
Sec. 124.3 Application for a permit.
(a) Applicable to State programs, see Sec. Sec. 123.25 (NPDES),
145.11 (UIC), 233.26 (404), and 271.14 (RCRA). (1) Any person who
requires a permit under the RCRA, UIC, NPDES, or PSD programs shall
complete, sign, and submit to the Director an application for each
permit required under Sec. Sec. 270.1 (RCRA), 144.1 (UIC), 40 CFR 52.21
(PSD), and 122.1 (NPDES). Applications are not required for RCRA permits
by rule (Sec. 270.60), underground injections authorized by rules
(Sec. Sec. 144.21 through 144.26), NPDES general permits (Sec. 122.28)
and 404 general permits (Sec. 233.37).
(2) The Director shall not begin the processing of a permit until
the applicant has fully complied with the application requirements for
that permit. See Sec. Sec. 270.10, 270.13 (RCRA), 144.31 (UIC), 40 CFR
52.21 (PSD), and 122.21 (NPDES).
(3) Permit applications (except for PSD permits) must comply with
the signature and certification requirements of Sec. Sec. 122.22
(NPDES), 144.32 (UIC), 233.6 (404), and 270.11 (RCRA).
(b) [Reserved]
(c) The Regional Administrator shall review for completeness every
application for an EPA-issued permit. Each application for an EPA-issued
permit submitted by a new HWM facility, a new UIC injection well, a
major PSD stationary source or major PSD modification, or an NPDES new
source or NPDES new discharger should be reviewed for completeness by
the Regional Administrator within 30 days of its receipt. Each
application for an EPA-issued permit submitted by an existing HWM
facility (both Parts A and B of the application), existing injection
well or existing NPDES source or sludge-only facility should be reviewed
for completeness within 60 days of receipt. Upon completing the review,
the Regional Administrator shall notify the applicant in writing whether
the application is complete. If the application is incomplete, the
Regional Administrator shall list the information necessary to make the
application complete. When the application is for an existing HWM
facility, an existing UIC injection well or an existing NPDES source or
``sludge-only facility'' the Regional Administrator shall specify in the
notice of deficiency a date for submitting the necessary information.
The Regional Administrator shall notify the applicant that the
application is complete upon receiving this information. After the
application is completed, the Regional Administrator may request
additional information from an applicant but only when necessary to
clarify, modify, or supplement previously submitted material. Requests
for such additional information will not render an application
incomplete.
[[Page 332]]
(d) If an applicant fails or refuses to correct deficiencies in the
application, the permit may be denied and appropriate enforcement
actions may be taken under the applicable statutory provision including
RCRA section 3008, SDWA sections 1423 and 1424, CAA section 167, and CWA
sections 308, 309, 402(h), and 402(k).
(e) If the Regional Administrator decides that a site visit is
necessary for any reason in conjunction with the processing of an
application, he or she shall notify the applicant and a date shall be
scheduled.
(f) The effective date of an application is the date on which the
Regional Administrator notifies the applicant that the application is
complete as provided in paragraph (c) of this section.
(g) For each application from a major new HWM facility, major new
UIC injection well, major NPDES new source, major NPDES new discharger,
or a permit to be issued under provisions of Sec. 122.28(c), the
Regional Administrator shall, no later than the effective date of the
application, prepare and mail to the applicant a project decision
schedule. (This paragraph does not apply to PSD permits.) The schedule
shall specify target dates by which the Regional Administrator intends
to:
(1) Prepare a draft permit;
(2) Give public notice;
(3) Complete the public comment period, including any public
hearing; and
(4) Issue a final permit.
(Clean Water Act (33 U.S.C. 1251 et seq.), Safe Drinking Water Act (42
U.S.C. 300f et seq.), Clean Air Act (42 U.S.C. 7401 et seq.), Resource
Conservation and Recovery Act (42 U.S.C. 6901 et seq.))
[48 FR 14264, Apr. 1, 1983, as amended at 48 FR 39620, Sept. 1, 1983; 54
FR 18785, May 2, 1989; 65 FR 30910, May 15, 2000]
Sec. 124.4 Consolidation of permit processing.
(a)(1) Whenever a facility or activity requires a permit under more
than one statute covered by these regulations, processing of two or more
applications for those permits may be consolidated. The first step in
consolidation is to prepare each draft permit at the same time.
(2) Whenever draft permits are prepared at the same time, the
statements of basis (required under Sec. 124.7 for EPA-issued permits
only) or fact sheets (Sec. 124.8), administrative records (required
under Sec. 124.9 for EPA-issued permits only), public comment periods
(Sec. 124.10), and any public hearings (Sec. 124.12) on those permits
should also be consolidated. The final permits may be issued together.
They need not be issued together if in the judgment of the Regional
Administrator or State Director(s), joint processing would result in
unreasonable delay in the issuance of one or more permits.
(b) Whenever an existing facility or activity requires additional
permits under one or more of the statutes covered by these regulations,
the permitting authority may coordinate the expiration date(s) of the
new permit(s) with the expiration date(s) of the existing permit(s) so
that all permits expire simultaneously. Processing of the subsequent
applications for renewal permits may then be consolidated.
(c) Processing of permit applications under paragraph (a) or (b) of
this section may be consolidated as follows:
(1) The Director may consolidate permit processing at his or her
discretion whenever a facility or activity requires all permits either
from EPA or from an approved State.
(2) The Regional Administrator and the State Director(s) may agree
to consolidate draft permits whenever a facility or activity requires
permits from both EPA and an approved State.
(3) Permit applicants may recommend whether or not the processing of
their applications should be consolidated.
(d) [Reserved]
(e) Except with the written consent of the permit applicant, the
Regional Administrator shall not consolidate processing a PSD permit
with any other permit under paragraph (a) or (b) of this section when to
do so would delay issuance of the PSD permit more than one year from the
effective date of the application under Sec. 124.3(f).
[48 FR 14264, Apr. 1, 1983, as amended at 65 FR 30910, May 15, 2000]
[[Page 333]]
Sec. 124.5 Modification, revocation and reissuance, or
termination of permits.
(a) (Applicable to State programs, see Sec. Sec. 123.25 (NPDES),
145.11 (UIC), 233.26 (404), and 271.14 (RCRA).) Permits (other than PSD
permits) may be modified, revoked and reissued, or terminated either at
the request of any interested person (including the permittee) or upon
the Director's initiative. However, permits may only be modified,
revoked and reissued, or terminated for the reasons specified in Sec.
122.62 or Sec. 122.64 (NPDES), 144.39 or 144.40 (UIC), 233.14 or 233.15
(404), and 270.41 or 270.43 (RCRA). All requests shall be in writing and
shall contain facts or reasons supporting the request.
(b) If the Director decides the request is not justified, he or she
shall send the requester a brief written response giving a reason for
the decision. Denials of requests for modification, revocation and
reissuance, or termination are not subject to public notice, comment, or
hearings. Denials by the Regional Administrator may be informally
appealed to the Environmental Appeals Board by a letter briefly setting
forth the relevant facts. The Environmental Appeals Board may direct the
Regional Administrator to begin modification, revocation and reissuance,
or termination proceedings under paragraph (c) of this section. The
appeal shall be considered denied if the Environmental Appeals Board
takes no action on the letter within 60 days after receiving it. This
informal appeal is, under 5 U.S.C. 704, a prerequisite to seeking
judicial review of EPA action in denying a request for modification,
revocation and reissuance, or termination.
(c) (Applicable to State programs, see 40 CFR 123.25 (NPDES), 145.11
(UIC), 233.26 (404), and 271.14 (RCRA)). (1) If the Director tentatively
decides to modify or revoke and reissue a permit under 40 CFR 122.62
(NPDES), 144.39 (UIC), 233.14 (404), or 270.41 (other than Sec.
270.41(b)(3)) or Sec. 270.42(c) (RCRA), he or she shall prepare a draft
permit under Sec. 124.6 incorporating the proposed changes. The
Director may request additional information and, in the case of a
modified permit, may require the submission of an updated application.
In the case of revoked and reissued permits, other than under 40 CFR
270.41(b)(3), the Director shall require the submission of a new
application. In the case of revoked and reissued permits under 40 CFR
270.41(b)(3), the Director and the permittee shall comply with the
appropriate requirements in 40 CFR part 124, subpart G for RCRA
standardized permits.
(2) In a permit modification under this section, only those
conditions to be modified shall be reopened when a new draft permit is
prepared. All other aspects of the existing permit shall remain in
effect for the duration of the unmodified permit. When a permit is
revoked and reissued under this section, the entire permit is reopened
just as if the permit had expired and was being reissued. During any
revocation and reissuance proceeding the permittee shall comply with all
conditions of the existing permit until a new final permit is reissued.
(3) ``Minor modifications'' as defined in Sec. Sec. 122.63 (NPDES),
144.41 (UIC), and 233.16 (404), and ``Classes 1 and 2 modifications'' as
defined in Sec. 270.42 (a) and (b) (RCRA) are not subject to the
requirements of this section.
(d) (Applicable to State programs, see Sec. Sec. 123.25 (NPDES) of
this chapter, 145.11 (UIC) of this chapter, and 271.14 (RCRA) of this
chapter.) (1) If the Director tentatively decides to terminate: A permit
under Sec. 144.40 (UIC) of this chapter, a permit under Sec. Sec.
122.64(a) (NPDES) of this chapter or 270.43 (RCRA) of this chapter (for
EPA-issued NPDES permits, only at the request of the permittee), or a
permit under Sec. 122.64(b) (NPDES) of this chapter where the permittee
objects, he or she shall issue a notice of intent to terminate. A notice
of intent to terminate is a type of draft permit which follows the same
procedures as any draft permit prepared under Sec. 124.6 of this
chapter.
(2) For EPA-issued NPDES or RCRA permits, if the Director
tentatively decides to terminate a permit under Sec. 122.64(a) (NPDES)
of this chapter, other than at the request of the permittee, or decides
to conduct a hearing under section 3008 of RCRA in connection with the
termination of a RCRA permit, he or she shall prepare a complaint under
40 CFR 22.13 and 22.44 of this chapter. Such termination of
[[Page 334]]
NPDES and RCRA permits shall be subject to the procedures of part 22 of
this chapter.
(3) In the case of EPA-issued permits, a notice of intent to
terminate or a complaint shall not be issued if the Regional
Administrator and the permittee agree to termination in the course of
transferring permit responsibility to an approved State under Sec. Sec.
123.24(b)(1) (NPDES) of this chapter, 145.25(b)(1) (UIC) of this
chapter, 271.8(b)(6) (RCRA) of this chapter, or 501.14(b)(1) (sludge) of
this chapter. In addition, termination of an NPDES permit for cause
pursuant to Sec. 122.64 of this chapter may be accomplished by
providing written notice to the permittee, unless the permittee objects.
(e) When EPA is the permitting authority, all draft permits
(including notices of intent to terminate) prepared under this section
shall be based on the administrative record as defined in Sec. 124.9.
(f) (Applicable to State programs, see Sec. 233.26 (404).) Any
request by the permittee for modification to an existing 404 permit
(other than a request for a minor modification as defined in Sec.
233.16 (404)) shall be treated as a permit application and shall be
processed in accordance with all requirements of Sec. 124.3.
(g)(1) (Reserved for PSD Modification Provisions).
(2) PSD permits may be terminated only by rescission under Sec.
52.21(w) or by automatic expiration under Sec. 52.21(r). Applications
for rescission shall be precessed under Sec. 52.21(w) and are not
subject to this part.
[48 FR 14264, Apr. 1, 1983, as amended at 53 FR 37934, Sept. 28, 1988;
54 FR 18785, May 2, 1989; 57 FR 60129, Dec. 18, 1992; 65 FR 30910, May
15, 2000; 70 FR 53449, Sept. 8, 2005]
Sec. 124.6 Draft permits.
(a) (Applicable to State programs, see Sec. Sec. 123.25 (NPDES),
145.11 (UIC), 233.26 (404), and 271.14 (RCRA).) Once an application is
complete, the Director shall tentatively decide whether to prepare a
draft permit (except in the case of State section 404 permits for which
no draft permit is required under Sec. 233.39) or to deny the
application.
(b) If the Director tentatively decides to deny the permit
application, he or she shall issue a notice of intent to deny. A notice
of intent to deny the permit application is a type of draft permit which
follows the same procedures as any draft permit prepared under this
section. See Sec. 124.6(e). If the Director's final decision (Sec.
124.15) is that the tentative decision to deny the permit application
was incorrect, he or she shall withdraw the notice of intent to deny and
proceed to prepare a draft permit under paragraph (d) of this section.
(c) (Applicable to State programs, see Sec. Sec. 123.25 (NPDES) and
233.26 (404).) If the Director tentatively decides to issue an NPDES or
404 general permit, he or she shall prepare a draft general permit under
paragraph (d) of this section.
(d) (Applicable to State programs, see Sec. Sec. 123.25 (NPDES),
145.11 (UIC), 233.26 (404), and 271.14 (RCRA).) If the Director decides
to prepare a draft permit, he or she shall prepare a draft permit that
contains the following information:
(1) All conditions under Sec. Sec. 122.41 and 122.43 (NPDES),
144.51 and 144.42 (UIC, 233.7 and 233.8 (404, or 270.30 and 270.32
(RCRA) (except for PSD permits)));
(2) All compliance schedules under Sec. Sec. 122.47 (NPDES), 144.53
(UIC), 233.10 (404), or 270.33 (RCRA) (except for PSD permits);
(3) All monitoring requirements under Sec. Sec. 122.48 (NPDES),
144.54 (UIC), 233.11 (404), or 270.31 (RCRA) (except for PSD permits);
and
(4) For:
(i) RCRA permits, standards for treatment, storage, and/or disposal
and other permit conditions under Sec. 270.30;
(ii) UIC permits, permit conditions under Sec. 144.52;
(iii) PSD permits, permit conditions under 40 CFR Sec. 52.21;
(iv) 404 permits, permit conditions under Sec. Sec. 233.7 and
233.8;
(v) NPDES permits, effluent limitations, standards, prohibitions,
standards for sewage sludge use or disposal, and conditions under
Sec. Sec. 122.41, 122.42, and 122.44, including when applicable any
conditions certified by a State agency under Sec. 124.55, and all
variances that are to be included under Sec. 124.63.
(e) (Applicable to State programs, see Sec. Sec. 123.25 (NPDES),
145.11 (UIC), 233.26
[[Page 335]]
(404), and 271.14 (RCRA).) All draft permits prepared by EPA under this
section shall be accompanied by a statement of basis (Sec. 124.7) or
fact sheet (Sec. 124.8), and shall be based on the administrative
record (Sec. 124.9), publicly noticed (Sec. 124.10) and made available
for public comment (Sec. 124.11). The Regional Administrator shall give
notice of opportunity for a public hearing (Sec. 124.12), issue a final
decision (Sec. 124.15) and respond to comments (Sec. 124.17). For
RCRA, UIC or PSD permits, an appeal may be taken under Sec. 124.19 and,
for NPDES permits, an appeal may be taken under Sec. 124.74. Draft
permits prepared by a State shall be accompanied by a fact sheet if
required under Sec. 124.8.
[48 FR 14264, Apr. 1, 1983, as amended at 54 FR 18785, May 2, 1989; 65
FR 30910, May 15, 2000]
Sec. 124.7 Statement of basis.
EPA shall prepare a statement of basis for every draft permit for
which a fact sheet under Sec. 124.8 is not prepared. The statement of
basis shall briefly describe the derivation of the conditions of the
draft permit and the reasons for them or, in the case of notices of
intent to deny or terminate, reasons supporting the tentative decision.
The statement of basis shall be sent to the applicant and, on request,
to any other person.
Sec. 124.8 Fact sheet.
(Applicable to State programs, see Sec. Sec. 123.25 (NPDES), 145.11
(UIC), 233.26 (404), and 271.14 (RCRA).)
(a) A fact sheet shall be prepared for every draft permit for a
major HWM, UIC, 404, or NPDES facility or activity, for every Class I
sludge management facility, for every 404 and NPDES general permit
(Sec. Sec. 237.37 and 122.28), for every NPDES draft permit that
incorporates a variance or requires an explanation under Sec.
124.56(b), for every draft permit that includes a sewage sludge land
application plan under 40 CFR 501.15(a)(2)(ix), and for every draft
permit which the Director finds is the subject of wide-spread public
interest or raises major issues. The fact sheet shall briefly set forth
the principal facts and the significant factual, legal, methodological
and policy questions considered in preparing the draft permit. The
Director shall send this fact sheet to the applicant and, on request, to
any other person.
(b) The fact sheet shall include, when applicable:
(1) A brief description of the type of facility or activity which is
the subject of the draft permit;
(2) The type and quantity of wastes, fluids, or pollutants which are
proposed to be or are being treated, stored, disposed of, injected,
emitted, or discharged.
(3) For a PSD permit, the degree of increment consumption expected
to result from operation of the facility or activity.
(4) A brief summary of the basis for the draft permit conditions
including references to applicable statutory or regulatory provisions
and appropriate supporting references to the administrative record
required by Sec. 124.9 (for EPA-issued permits);
(5) Reasons why any requested variances or alternatives to required
standards do or do not appear justified;
(6) A description of the procedures for reaching a final decision on
the draft permit including:
(i) The beginning and ending dates of the comment period under Sec.
124.10 and the address where comments will be received;
(ii) Procedures for requesting a hearing and the nature of that
hearing; and
(iii) Any other procedures by which the public may participate in
the final decision.
(7) Name and telephone number of a person to contact for additional
information.
(8) For NPDES permits, provisions satisfying the requirements of
Sec. 124.56.
(9) Justification for waiver of any application requirements under
Sec. 122.21(j) or (q) of this chapter.
[48 FR 14264, Apr. 1, 1983, as amended at 54 FR 18786, May 2, 1989; 64
FR 42470, Aug. 4, 1999]
Sec. 124.9 Administrative record for draft permits when EPA is
the permitting authority.
(a) The provisions of a draft permit prepared by EPA under Sec.
124.6 shall be based on the administrative record defined in this
section.
[[Page 336]]
(b) For preparing a draft permit under Sec. 124.6, the record shall
consist of:
(1) The application, if required, and any supporting data furnished
by the applicant;
(2) The draft permit or notice of intent to deny the application or
to terminate the permit;
(3) The statement of basis (Sec. 124.7) or fact sheet (Sec.
124.8);
(4) All documents cited in the statement of basis or fact sheet; and
(5) Other documents contained in the supporting file for the draft
permit.
(6) For NPDES new source draft permits only, any environmental
assessment, environmental impact statement (EIS), finding of no
significant impact, or environmental information document and any
supplement to an EIS that may have been prepared. NPDES permits other
than permits to new sources as well as all RCRA, UIC and PSD permits are
not subject to the environmental impact statement provisions of section
102(2)(C) of the National Environmental Policy Act, 42 U.S.C. 4321.
(c) Material readily available at the issuing Regional Office or
published material that is generally available, and that is included in
the administrative record under paragraphs (b) and (c) of this section,
need not be physically included with the rest of the record as long as
it is specifically referred to in the statement of basis or the fact
sheet.
(d) This section applies to all draft permits when public notice was
given after the effective date of these regulations.
Sec. 124.10 Public notice of permit actions and public comment period.
(a) Scope. (1) The Director shall give public notice that the
following actions have occurred:
(i) A permit application has been tentatively denied under Sec.
124.6(b);
(ii) (Applicable to State programs, see Sec. Sec. 123.25 (NPDES),
145.11 (UIC), 233.26 (404), and 271.14 (RCRA).) A draft permit has been
prepared under Sec. 124.6(d);
(iii) (Applicable to State programs, see Sec. Sec. 123.25 (NPDES),
145.11 (UIC), 233.26 (404) and 271.14 (RCRA)).) A hearing has been
scheduled under Sec. 124.12;
(iv) (Applicable to State programs, see Sec. 233.26 (404).) A State
section 404 application has been received in cases when no draft permit
will be prepared (see Sec. 233.39); or
(v) An NPDES new source determination has been made under Sec.
122.29.
(2) No public notice is required when a request for permit
modification, revocation and reissuance, or termination is denied under
Sec. 124.5(b). Written notice of that denial shall be given to the
requester and to the permittee.
(3) Public notices may describe more than one permit or permit
actions.
(b) Timing (applicable to State programs, see Sec. Sec. 123.25
(NPDES), 145.11 (UIC), 233.26 (404, and 271.14 (RCRA)). (1) Public
notice of the preparation of a draft permit (including a notice of
intent to deny a permit application) required under paragraph (a) of
this section shall allow at least 30 days for public comment. For RCRA
permits only, public notice shall allow at least 45 days for public
comment. For EPA-issued permits, if the Regional Administrator
determines under 40 CFR part 6, subpart F that an Environmental Impact
Statement (EIS) shall be prepared for an NPDES new source, public notice
of the draft permit shall not be given until after a draft EIS is
issued.
(2) Public notice of a public hearing shall be given at least 30
days before the hearing. (Public notice of the hearing may be given at
the same time as public notice of the draft permit and the two notices
may be combined.)
(c) Methods (applicable to State programs, see 40 CFR 123.25
(NPDES), 145.11 (UIC), 233.26 (404), and 271.14 (RCRA)). Public notice
of activities described in paragraph (a)(1) of this section shall be
given by the following methods:
(1) By mailing a copy of a notice to the following persons (any
person otherwise entitled to receive notice under this paragraph may
waive his or her rights to receive notice for any classes and categories
of permits);
(i) The applicant (except for NPDES and 404 general permits when
there is no applicant);
(ii) Any other agency which the Director knows has issued or is
required to issue a RCRA, UIC, PSD (or other permit under the Clean Air
Act),
[[Page 337]]
NPDES, 404, sludge management permit, or ocean dumping permit under the
Marine Research Protection and Sanctuaries Act for the same facility or
activity (including EPA when the draft permit is prepared by the State);
(iii) Federal and State agencies with jurisdiction over fish,
shellfish, and wildlife resources and over coastal zone management
plans, the Advisory Council on Historic Preservation, State Historic
Preservation Officers, including any affected States (Indian Tribes).
(For purposes of this paragraph, and in the context of the Underground
Injection Control Program only, the term State includes Indian Tribes
treated as States.)
(iv) For NPDES and 404 permits only, any State agency responsible
for plan development under CWA section 208(b)(2), 208(b)(4) or 303(e)
and the U.S. Army Corps of Engineers, the U.S. Fish and Wildlife Service
and the National Marine Fisheries Service;
(v) For NPDES permits only, any user identified in the permit
application of a privately owned treatment works;
(vi) For 404 permits only, any reasonably ascertainable owner of
property adjacent to the regulated facility or activity and the Regional
Director of the Federal Aviation Administration if the discharge
involves the construction of structures which may affect aircraft
operations or for purposes associated with seaplane operations;
(vii) For PSD permits only, affected State and local air pollution
control agencies, the chief executives of the city and county where the
major stationary source or major modification would be located, any
comprehensive regional land use planning agency and any State, Federal
Land Manager, or Indian Governing Body whose lands may be affected by
emissions from the regulated activity;
(viii) For Class I injection well UIC permits only, state and local
oil and gas regulatory agencies and state agencies regulating mineral
exploration and recovery;
(ix) Persons on a mailing list developed by:
(A) Including those who request in writing to be on the list;
(B) Soliciting persons for ``area lists'' from participants in past
permit proceedings in that area; and
(C) Notifying the public of the opportunity to be put on the mailing
list through periodic publication in the public press and in such
publications as Regional and State funded newsletters, environmental
bulletins, or State law journals. (The Director may update the mailing
list from time to time by requesting written indication of continued
interest from those listed. The Director may delete from the list the
name of any person who fails to respond to such a request.)
(x)(A) To any unit of local government having jurisdiction over the
area where the facility is proposed to be located; and (B) to each State
agency having any authority under State law with respect to the
construction or operation of such facility.
(xi) For Class VI injection well UIC permits, mailing or e-mailing a
notice to State and local oil and gas regulatory agencies and State
agencies regulating mineral exploration and recovery, the Director of
the Public Water Supply Supervision program in the State, and all
agencies that oversee injection wells in the State.
(2)(i) For major permits, NPDES and 404 general permits, and permits
that include sewage sludge land application plans under 40 CFR
501.15(a)(2)(ix), publication of a notice in a daily or weekly newspaper
within the area affected by the facility or activity; and for EPA-issued
NPDES general permits, in the Federal Register;
Note: The Director is encouraged to provide as much notice as
possible of the NPDES or Section 404 draft general permit to the
facilities or activities to be covered by the general permit.
(ii) For all RCRA permits, publication of a notice in a daily or
weekly major local newspaper of general circulation and broadcast over
local radio stations.
(iii) For PSD permits:
(A) In lieu of the requirement in paragraphs (c)(1)(ix)(B) and (C)
of this section regarding soliciting persons for ``area lists'' and
notifying the public of the opportunity to be on a mailing list, the
Director may use generally accepted methods (e.g., hyperlink sign-up
[[Page 338]]
function or radio button on an agency Web site, sign-up sheet at a
public hearing, etc.) that enable interested parties to subscribe to a
mailing list. The Director may update the mailing list from time to time
by requesting written indication of continued interest from those
listed. The Director may delete from the list the name of any person who
fails to respond to such a request within a reasonable timeframe.
(B) In lieu of the requirement in paragraph (c)(2)(i) of this
section to publish a notice in a daily or weekly newspaper, the Director
shall notify the public by posting the following information, for the
duration of the public comment period, on a public Web site identified
by the Director: A notice of availability of the draft permit for public
comment (or the denial of the permit application), the draft permit,
information on how to access the administrative record, and information
on how to request and/or attend a public hearing on the draft permit.
(C) In lieu of the requirement in paragraph (d)(1)(vi) of this
section to specify a location of the administrative record for the draft
permit, the Director may post the administrative record on an identified
public Web site.
(iv) For NPDES major permits and NPDES general permits, in lieu of
the requirement for publication of a notice in a daily or weekly
newspaper, as described in paragraph (c)(2)(i) of this section, the
Director may publish all notices of activities described in paragraph
(a)(1) of this section to the permitting authority's public website. If
the Director selects this option for a draft permit, as defined in Sec.
122.2, in addition to meeting the requirements in paragraph (d) of this
section, the Director must post the draft permit and fact sheet on the
website for the duration of the public comment period.
Note to paragraph (c)(2)(iv): The Director is encouraged to ensure
that the method(s) of public notice effectively informs all interested
communities and allows access to the permitting process for those
seeking to participate.
(3) When the program is being administered by an approved State, in
a manner constituting legal notice to the public under State law; and
(4) Any other method reasonably calculated to give actual notice of
the action in question to the persons potentially affected by it,
including press releases or any other forum or medium to elicit public
participation.
(d) Contents (applicable to State programs, see Sec. Sec. 123.25
(NPDES), 145.11 (UIC), 233.26 (404), and 271.14 (RCRA))--(1) All public
notices. All public notices issued under this part shall contain the
following minimum information:
(i) Name and address of the office processing the permit action for
which notice is being given;
(ii) Name and address of the permittee or permit applicant and, if
different, of the facility or activity regulated by the permit, except
in the case of NPDES and 404 draft general permits under Sec. Sec.
122.28 and 233.37;
(iii) A brief description of the business conducted at the facility
or activity described in the permit application or the draft permit, for
NPDES or 404 general permits when there is no application.
(iv) Name, address and telephone number of a person from whom
interested persons may obtain further information, including copies of
the draft permit or draft general permit, as the case may be, statement
of basis or fact sheet, and the application; and
(v) A brief description of the comment procedures required by
Sec. Sec. 124.11 and 124.12 and the time and place of any hearing that
will be held, including a statement of procedures to request a hearing
(unless a hearing has already been scheduled) and other procedures by
which the public may participate in the final permit decision.
(vi) For EPA-issued permits, the location of the administrative
record required by Sec. 124.9, the times at which the record will be
open for public inspection, and a statement that all data submitted by
the applicant is available as part of the administrative record.
(vii) For NPDES permits only (including those for ``sludge-only
facilities''), a general description of the location of each existing or
proposed discharge point and the name of the receiving water and the
sludge use and disposal practice(s) and the location of each sludge
treatment works treating domestic sewage and use or disposal
[[Page 339]]
sites known at the time of permit application. For EPA-issued NPDES
permits only, if the discharge is from a new source, a statement as to
whether an environmental impact statement will be or has been prepared.
(viii) For 404 permits only,
(A) The purpose of the proposed activity (including, in the case of
fill material, activities intended to be conducted on the fill), a
description of the type, composition, and quantity of materials to be
discharged and means of conveyance; and any proposed conditions and
limitations on the discharge;
(B) The name and water quality standards classification, if
applicable, of the receiving waters into which the discharge is
proposed, and a general description of the site of each proposed
discharge and the portions of the site and the discharges which are
within State regulated waters;
(C) A description of the anticipated environmental effects of
activities conducted under the permit;
(D) References to applicable statutory or regulatory authority; and
(E) Any other available information which may assist the public in
evaluating the likely impact of the proposed activity upon the integrity
of the receiving water.
(ix) Requirements applicable to cooling water intake structures
under section 316(b) of the CWA, in accordance with part 125, subparts I
, J, and N of this chapter.
(x) Any additional information considered necessary or proper.
(2) Public notices for hearings. In addition to the general public
notice described in paragraph (d)(1) of this section, the public notice
of a hearing under Sec. 124.12 shall contain the following information:
(i) Reference to the date of previous public notices relating to the
permit;
(ii) Date, time, and place of the hearing;
(iii) A brief description of the nature and purpose of the hearing,
including the applicable rules and procedures; and
(iv) For 404 permits only, a summary of major issues raised to date
during the public comment period.
(e) (Applicable to State programs, see Sec. Sec. 123.25 (NPDES),
145.11 (UIC), 233.26 (404), and 271.14 (RCRA).) In addition to the
general public notice described in paragraph (d)(1) of this section, all
persons identified in paragraphs (c)(1) (i), (ii), (iii), and (iv) of
this section shall be mailed a copy of the fact sheet or statement of
basis (for EPA-issued permits), the permit application (if any) and the
draft permit (if any).
[48 FR 14264, Apr. 1, 1983; 48 FR 30115, June 30, 1983, as amended at 53
FR 28147, July 26, 1988; 53 FR 37410, Sept. 26, 1988; 54 FR 258, Jan. 4,
1989; 54 FR 18786, May 2, 1989; 65 FR 30911, May 15, 2000; 66 FR 65338,
Dec. 18, 2001; 69 FR 41683, July 9, 2004; 71 FR 35040, June 16, 2006; 75
FR 77286, Dec. 10, 2010; 78 FR 5285, Jan. 24, 2013; 81 FR 71631, Oct.
18, 2016; 84 FR 3338, Feb. 12, 2019]