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Subpart G--Criteria for Modifying the Secondary Treatment Requirements Under Section 301(h) of the Clean  yO`" Water Act 125.56 Scope and purpose. 125.57 Law governing issuance of a section 301(h) modified permit. 125.58 Definitions. 125.59 General. 125.60 Existence of and compliance with applicable water quality standards. 125.61 Attainment or maintenance of water quality which assures protection of public water supplies, the protection'0*(( and propagation of a balanced, indigenous population of shellfish, fish, and wildlife, and allows recreational activities. 125.62 Establishment of a monitoring program. 125.63 Effect of discharge on other point and nonpoint sources. 125.64 Toxics control program. 125.65 Increase in effluent volume or amount of pollutants discharged. 125.66 [Reserved] 125.67 Special conditions for section 301(h) modified permits.  yO@ Appendix A--Small Applicant Questionnaire for Modification of Secondary Treatment Requirements Appendix B--Large Applicant Questionnaire for Modification of Secondary Treatment Requirements  yO   Subpart H--Criteria for Determining Alternative Effluent Limitations Under Section 316(a) of the Act 125.70 Purpose and scope. 125.71 Definitions. 125.72 Early screening of applications for section 316(a) variances. 125.73 Criteria and standards for the determination of alternative effluent limitations under section 316(a).  yO  Subpart I--Criteria Applicable To Cooling Water Intake Structures Under Section 316(b) of the  yO Act--[Reserved]  yOh  Subpart J--Criteria for Extending Compliance Dates Under Section 301(i) of the Act 125.90 Purpose and scope. 125.91 Definition. 125.92 Requests for permit modification and issuance under section 301(i)(1) of the Act. 125.93 Criteria for permit modification and issuance under section 301(i)(1) of the Act. 125.94 Permit terms and conditions under section 301(i)(1) of the Act. 125.95 Requests for permit modification or issuance under section 301(i)(2) of the Act. 125.96 Criteria for permit modification or issuance under section 301(i)(2) of the Act. 125.97 Permit terms and conditions under section 301(i)(2) of the Act.  yO  Subpart K--Criteria and Standards for Best Management Practices Authorized Under Section 304(e) of the  yO Act 125.100 Purpose and scope. 125.101 Definition. 125.102 Applicability of best management practices. 125.103 Permit terms and conditions. 125.104 Best management practices programs.  yO  Subpart L--Criteria and Standards for Imposing Conditions for the Disposal of Sewage Sludge Under Section  yO 405 of the Act--[Reserved]  yO`"  Subpart M--Ocean Discharge Criteria 125.120 Scope and purpose. 125.121 Definitions. 125.122 Determination of unreasonable degradation of the marine environment. 125.123 Permit requirements. 125.124 Information required to be submitted by applicant. '0*((Ԍ {O  Authority: Clean Water Act, as amended by the Clean Water Act of 1977, 33 U.S.C. 1251 et seq., unless otherwise noted.  yOZ  Source: 44 FR 32948, June 7, 1979, unless otherwise noted.  yO  Subpart A--Criteria and Standards for Imposing Technology-Based Treatment Requirements Under  yO Sections 301(b) and 402 of the Act *   yO   125.1 Purpose and scope. This subpart establishes criteria and standards for the imposition of technology-based treatment requirements in permits under section 301(b) of the Act, including the application of EPA promulgated effluent limitations and case-by-case determinations of effluent limitations under section 402(a)(1) of the Act.  yO  125.2 Definitions.  {O  For the purposes of this part, any reference to the Act shall mean the Clean Water Act of 1977 (CWA). Unless otherwise noted, the definitions in parts 122, 123 and 124 apply to this part. [45 FR 33512, May 19, 1980]  yO  125.3 Technology-based treatment requirements in permits.  {OT  (a) General. Technology-based treatment requirements under section 301(b) of the Act represent the minimum level of control that must be imposed in a permit issued under section 402 of the Act. (See 122.41, 122.42 and 122.44 for a discussion of additional or more stringent effluent limitations and conditions.) Permits shall contain the following technology-based treatment requirements in accordance with the following statutory deadlines; (1) For POTW's, effluent limitations based upon: (i) Secondary treatment--from date of permit issuance; and (ii) The best practicable waste treatment technology--not later than July 1, 1983; and (2) For dischargers other than POTWs except as provided in 122.29(d), effluent limitations requiring: (i) The best practicable control technology currently available (BPT)-- (A) For effluent limitations promulgated under Section 304(b) after January 1, 1982 and requiring a level of control substantially greater or based on fundamentally different control technology than under permits for an industrial category issued before such date, compliance as expeditiously as practicable but in no case later than three years after the date such limitations are promulgated under section 304(b) and in no case later than March 31, 1989; (B) For effluent limitations established on a case-by-case basis based on Best Professional Judgment (BPJ) under Section 402(a)(1)(B) of the Act in a permit issued after February 4, 1987, compliance as expeditiously as practicable but in no case later than three years after the date such limitations are established and in no case later than March 31, 1989; (C) For all other BPT effluent limitations compliance is required from the date of permit issuance. (ii) For conventional pollutants, the best conventional pollutant control technology (BCT)-- (A) For effluent limitations promulgated under section 304(b), as expeditiously as practicable but in no case later than three years after the date such limitations are promulgated under section 304(b), and in no case later than March 31, 1989. (B) For effluent limitations established on a case-by-case (BPJ) basis under section 402(a)(1)(B) of the Act in a permit issued after February 4, 1987, compliance as expeditiously as practicable but in no case later than three years after the date such limitations are established and in no case later than March 31, 1989;'0*((Ԍ (iii) For all toxic pollutants referred to in Committee Print No. 95 - 30, House Committee on Public Works and Transportation, the best available technology economically achievable (BAT)-- (A) For effluent limitations established under section 304(b), as expeditiously as practicable but in no case later than three years after the date such limitations are promulgated under section 304(b), and in no case later than March 31, 1989. (B) For permits issued on a case-by-case (BPJ) basis under section 402(a)(1)(B) of the Act after February 4, 1987 establishing BAT effluent limitations, compliance is required as expeditiously as practicable but in no case later than three years after the date such limitations are promulgated under section 304(b), and in no case later than March 31, 1989. (iv) For all toxic pollutants other than those listed in Committee Print No. 95 - 30, effluent limitations based on BAT-- (A) For effluent limitations promulgated under section 304(b) compliance is required as expeditiously as practicable, but in no case later than three years after the date such limitations are promulgated under section 304(b) and in no case later than March 31, 1989. (B) For permits issued on a case-by-case (BPJ) basis under Section 402(a)(1)(B) of the Act after February 4, 1987 establishing BAT effluent limitations, compliance is required as expeditiously as practicable but in no case later than 3 years after the date such limitations are established and in no case later than March 31, 1989. (v) For all pollutants which are neither toxic nor conventional pollutants, effluent limitations based on BAT-- (A) For effluent limitations promulgated under section 304(b), compliance is required as expeditiously as practicable but in no case later than 3 years after the date such limitations are established and in no case later than March 31, 1989. (B) For permits issued on a case-by-case (BPJ) basis under section 402(a)(1)(B) of the Act after February 4, 1987 establishing BAT effluent limitations compliance is required as expeditiously as practicable but in no case later than three years after the date such limitations are established and in no case later than March 31, 1989.  {O  (b) Statutory variances and extensions. (1) The following variances from technology-based treatment requirements are authorized by the Act and may be applied for under 122.21; (i) For POTW's, a section 301(h) marine discharge variance from secondary treatment (subpart G); (ii) For dischargers other than POTW's; (A) A section 301(c) economic variance from BAT (subpart E); (B) A section 301(g) water quality related variance from BAT (subpart F); and (C) A section 316(a) thermal variance from BPT, BCT and BAT (subpart H). (2) The following extensions of deadlines for compliance with technology-based treatment requirements are authorized by the Act and may be applied for under 124.53: (i) For POTW's a section 301(i) extension of the secondary treatment deadline (subpart J); (ii) For dischargers other than POTW's: (A) A section 301(i) extension of the BPT deadline (subpart J); and (B) A section 301(k) extension of the BAT deadline (subpart C).  {O  (c) Methods of imposing technology-based treatment requirements in permits. Technology-based treatment requirements may be imposed through one of the following three methods: (1) Application of EPA-promulgated effluent limitations developed under section 304 of the Act to dischargers by category or subcategory. These effluent limitations are not applicable to the extent that they have been remanded or withdrawn. However, in the case of a court remand, determinations underlying effluent limitations shall be binding in permit issuance proceedings where those determinations are not required to be reexamined by a court remanding the regulations. In addition, dischargers may seek fundamentally different factors variances from these effluent limitations under 122.21 and subpart D of this part. (2) On a case-by-case basis under section 402(a)(1) of the Act, to the extent that EPA-promulgated effluent limitations are inapplicable. The permit writer shall apply the appropriate factors listed in 125.3(d) and shall consider: (i) The appropriate technology for the category or class of point sources of which the applicant is a member, based upon all available information; and (ii) Any unique factors relating to the applicant.'0*((Ԍ {O ԙ[Comment: These factors must be considered in all cases, regardless of whether the permit is being issued by EPA or an approved State.] (3) Through a combination of the methods in paragraphs (d) (1) and (2) of this section. Where promulgated effluent limitations guidelines only apply to certain aspects of the discharger's operation, or to certain pollutants, other aspects or activities are subject to regulation on a case-by-case basis in order to carry out the provisions of the Act. (4) Limitations developed under paragraph (d)(2) of this section may be expressed, where appropriate, in terms  yOB of toxicity (e.g., ``the LC50 for fat head minnow of the effluent from outfall 001 shall be greater than 25%'').  {O  Provided, That is shown that the limits reflect the appropriate requirements (for example, technology-based or water-quality-based standards) of the Act. (d) In setting case-by-case limitations pursuant to 125.3(c), the permit writer must consider the following factors:  {Od  (1) For BPT requirements: (i) The total cost of application of technology in relation to the effluent reduction benefits to be achieved from such application; (ii) The age of equipment and facilities involved; (iii) The process employed; (iv) The engineering aspects of the application of various types of control techniques; (v) Process changes; and (vi) Non-water quality environmental impact (including energy requirements).  {O  (2) For BCT requirements: (i) The reasonableness of the relationship between the costs of attaining a reduction in effluent and the effluent reduction benefits derived; (ii) The comparison of the cost and level of reduction of such pollutants from the discharge from publicly owned treatment works to the cost and level of reduction of such pollutants from a class or category of industrial sources; (iii) The age of equipment and facilities involved; (iv) The process employed; (v) The engineering aspects of the application of various types of control techniques; (vi) Process changes; and (vii) Non-water quality environmental impact (including energy requirements).  {O  (3) For BAT requirements: (i) The age of equipment and facilities involved; (ii) The process employed; (iii) The engineering aspects of the application of various types of control techniques; (iv) Process changes; (v) The cost of achieving such effluent reduction; and (vi) Non-water quality environmental impact (including energy requirements). (e) Technology-based treatment requirements are applied prior to or at the point of discharge. (f) Technology-based treatment requirements cannot be satisfied through the use of ``non-treatment'' techniques such as flow augmentation and in-stream mechanical aerators. However, these techniques may be considered as a method of achieving water quality standards on a case-by-case basis when: (1) The technology-based treatment requirements applicable to the discharge are not sufficient to achieve the standards; (2) The discharger agrees to waive any opportunity to request a variance under section 301 (c), (g) or (h) of the Act; and (3) The discharger demonstrates that such a technique is the preferred environmental and economic method to achieve the standards after consideration of alternatives such as advanced waste treatment, recycle and reuse, land disposal, changes in operating methods, and other available methods. (g) Technology-based effluent limitations shall be established under this subpart for solids, sludges, filter backwash, and other pollutants removed in the course of treatment or control of wastewaters in the same manner as for other pollutants. (h)(1) The Director may set a permit limit for a conventional pollutant at a level more stringent than the best conventional pollution control technology (BCT), or a limit for a nonconventional pollutant which shall not be subject to modification under section 301 (c) or (g) of the Act where:'0*((Ԍ (i) Effluent limitations guidelines specify the pollutant as an indicator for a toxic pollutant, or (ii)(A) The limitation reflects BAT-level control of discharges of one or more toxic pollutants which are present in the waste stream, and a specific BAT limitation upon the toxic pollutant(s) is not feasible for economic or technical reasons; (B) The permit identifies which toxic pollutants are intended to be controlled by use of the limitation; and (C) The fact sheet required by 124.56 sets forth the basis for the limitation, including a finding that compliance with the limitation will result in BAT-level control of the toxic pollutant discharges identified in paragraph (h)(1)(ii)(B) of this section, and a finding that it would be economically or technically infeasible to directly limit the toxic pollutant(s). (2) The Director may set a permit limit for a conventional pollutant at a level more stringent than BCT when: (i) Effluent limitations guidelines specify the pollutant as an indicator for a hazardous substance, or (ii)(A) The limitation reflects BAT-level control of discharges (or an appropriate level determined under section 301(c) or (g) of the Act) of one or more hazardous substance(s) which are present in the waste stream, and a specific BAT (or other appropriate) limitation upon the hazardous substance(s) is not feasible for economic or technical reasons; (B) The permit identifies which hazardous substances are intended to be controlled by use of the limitation; and (C) The fact sheet required by 124.56 sets forth the basis for the limitation, including a finding that compliance with the limitations will result in BAT-level (or other appropriate level) control of the hazardous substances discharges identified in paragraph (h)(2)(ii)(B) of this section, and a finding that it would be economically or technically infeasible to directly limit the hazardous substance(s). (iii) Hazardous substances which are also toxic pollutants are subject to paragraph (h)(1) of this section. (3) The Director may not set a more stringent limit under the preceding paragraphs if the method of treatment required to comply with the limit differs from that which would be required if the toxic pollutant(s) or hazardous substance(s) controlled by the limit were limited directly. (4) Toxic pollutants identified under paragraph (h)(1) of this section remain subject to the requirements of 122.42(a)(1) (notification of increased discharges of toxic pollutants above levels reported in the application form). (Clean Water Act, Safe Drinking Water Act, Clean Air Act, Resource Conservation and Recovery Act: 42 U.S.C. 6905, 6912, 6925, 6927, 6974) [44 FR 32948, June 7, 1979, as amended at 45 FR 33512, May 19, 1980; 48 FR 14293, Apr. 1, 1983; 49 FR 38052, Sept. 26, 1984; 50 FR 6941, Feb. 19, 1985; 54 FR 257, Jan. 4, 1989]  yO  7  Subpart B--Criteria for Issuance of Permits to Aquaculture Projects *   yO   125.10 Purpose and scope. (a) These regulations establish guidelines under sections 318 and 402 of the Act for approval of any discharge of pollutants associated with an aquaculture project. (b) The regulations authorize, on a selective basis, controlled discharges which would otherwise be unlawful under the Act in order to determine the feasibility of using pollutants to grow aquatic organisms which can be harvested and used beneficially. EPA policy is to encourage such projects, while at the same time protecting other beneficial uses of the waters. (c) Permits issued for discharges into aquaculture projects under this subpart are NPDES permits and are subject to the applicable requirements of parts 122, 123 and 124. Any permit shall include such conditions (including monitoring and reporting requirements) as are necessary to comply with those parts. Technology-based effluent limitations need not be applied to discharges into the approved project except with respect to toxic pollutants.  yO'  125.11 Criteria. '0*((Ԍ (a) No NPDES permit shall be issued to an aquaculture project unless: (1) The Director determines that the aquaculture project: (i) Is intended by the project operator to produce a crop which has significant direct or indirect commercial value (or is intended to be operated for research into possible production of such a crop); and (ii) Does not occupy a designated project area which is larger than can be economically operated for the crop under cultivation or than is necessary for research purposes. (2) The applicant has demonstrated, to the satisfaction of the Director, that the use of the pollutant to be discharged to the aquaculture project will result in an increased harvest of organisms under culture over what would naturally occur in the area; (3) The applicant has demonstrated, to the satisfaction of the Director, that if the species to be cultivated in the aquaculture project is not indigenous to the immediate geographical area, there will be minimal adverse effects on the flora and fauna indigenous to the area, and the total commercial value of the introduced species is at least equal to that of the displaced or affected indigenous flora and fauna; (4) The Director determines that the crop will not have a significant potential for human health hazards resulting from its consumption; (5) The Director determines that migration of pollutants from the designated project area to water outside of the aquaculture project will not cause or contribute to a violation of water quality standards or a violation of the applicable standards and limitations applicable to the supplier of the pollutant that would govern if the aquaculture project were itself a point source. The approval of an aquaculture project shall not result in the enlargement of a pre-existing mixing zone area beyond what had been designated by the State for the original discharge. (b) No permit shall be issued for any aquaculture project in conflict with a plan or an amendment to a plan approved under section 208(b) of the Act. (c) No permit shall be issued for any aquaculture project located in the territorial sea, the waters of the contiguous zone, or the oceans, except in conformity with guidelines issued under section 403(c) of the Act. (d) Designated project areas shall not include a portion of a body of water large enough to expose a substantial portion of the indigenous biota to the conditions within the designated project area. For example, the designated project area shall not include the entire width of a watercourse, since all organisms indigenous to that watercourse might be subjected to discharges of pollutants that would, except for the provisions of section 318 of the Act, violate section 301 of the Act. (e) Any modifications caused by the construction or creation of a reef, barrier or containment structure shall not unduly alter the tidal regimen of an estuary or interfere with migrations of unconfined aquatic species.  {O [Comment: Any modifications described in this paragraph which result in the discharge of dredged or fill material into navigable waters may be subject to the permit requirements of section 404 of the Act.] (f) Any pollutants not required by or beneficial to the aquaculture crop shall not exceed applicable standards and limitations when entering the designated project area.  yO  Subpart C--Criteria for Extending Compliance Dates for Facilities Installing Innovative Technology Under  yOz dSection 301(k) of the Act *   yO  Source: 49 FR 25981, June 25, 1984, unless otherwise noted.  yOb"  125.20 Purpose and scope. This subpart establishes the criteria and procedures to be used in determining whether an industrial discharger will be granted a compliance extension for the installation of an innovative technology.  yO'  125.21 Statutory authority. '0*((Ԍ Section 301(k) provides that the Administrator (or a State with an approved NPDES program, in consultation with the Administrator) may grant a compliance extension for BAT limitations to a discharger which installs an innovative technology. The innovative technology must produce either a significantly greater effluent reduction than that achieved by the best available technology economically achievable (BAT) or the same level of treatment as BAT at a significantly lower cost. The Administrator is authorized to grant compliance extensions to a date no later than 2 years after the date for compliance with the effluent limitation which would otherwise be applicable. [54 FR 257, Jan. 4, 1989]  yO  125.22 Definitions.  {O`  (a) The term innovative technology means a production process, a pollution control technique, or a combination of the two which satisfies one of the criteria in 125.23 and which has not been commercially demonstrated in the industry of which the requesting discharger is a part.  {O  (b) The term potential for industry-wide application means that an innovative technology can be applied in two or more facilities which are in one or more industrial categories.  {OL  (c) The term Significantly greater effluent reduction than BAT means that the effluent reduction over BAT produced by an innovative technology is significant when compared to the effluent reduction over best practicable control technology currently available (BPT) produced by BAT.  {O  (d) The term significantly lower cost means that an innovative technology must produce a significant cost advantage when compared to the technology used to achieve BAT limitations in terms of annual capital costs and annual operation and maintenance expenses over the useful life of the technology.  yO  125.23 Request for compliance extension. The Director shall grant a compliance extension to a date no later than 2 years after the date for compliance with the effluent limitation which would otherwise be applicable, to a discharger that demonstrates: (a) That the installation and operation of its proposed innovative technology at its facility will result in a significantly greater effluent reduction than BAT and has the potential for industry-wide application; or (b) That the installation and operation of its proposed innovative technology at its facility will result in the same effluent reduction as BAT at a significantly lower cost and has the potential for industry-wide application. [44 FR 32948, June 7, 1979, as amended at 54 FR 257, Jan. 4, 1989]  yO  125.24 Permit conditions. The Director may include any of the following conditions in the permit of a discharger to which a compliance extension beyond the otherwise applicable compliance date is granted: (a) A requirement that the discharger report annually on the installation, operation, and maintenance costs of the innovative technology; (b) Alternative BAT limitations that the discharger must meet as soon as possible and not later than 2 years after the date for compliance with the effluent limitation which would otherwise be applicable if the innovative technology limitations that are more stringent than BAT are not achievable. [49 FR 25981, June 25, 1984; 49 FR 28560, July 13, 1984, as amended at 54 FR 257, Jan. 4, 1989]  yO'  125.25 Signatories to request for compliance extension. '0*((Ԍ (a) All section 301(k) requests must be signed in accordance with the provisions of 40 CFR 122.22. (b) Any person signing a request under paragraph (a) of this section shall make the following certification: I certify under penalty of law that I have personally examined and am familiar with the information submitted in this document and all attachments and that, based on my inquiry of those individuals immediately responsible for obtaining the information, I believe that the information is true, accurate, and complete. I am aware that there are significant penalties for submitting false information, including the possibility of fine and imprisonment. (c) A professional engineer shall certify that the estimates by the applicant of the costs for the BAT control equipment and for the innovative technology are made in accordance with good engineering practice and represent, in his judgment, the best information available. The Director may waive the requirements for certification under this subsection if, in his opinion, the cost of such certification is unreasonable when compared to the annual sales of the applicant.  yO  125.26 Supplementary information and recordkeeping. (a) In addition to the information submitted in support of the request, the applicant shall provide the Director, at his or her request, such other information as the Director may reasonably require to assess the performance of cost of the innovative technology. (b) Applicants shall keep records of all data used to complete the request for a compliance extension for the life of the permit containing the compliance extension.  yO  125.27 Procedures. (a) The procedure for requesting a section 301(k) compliance extension is contained in 124.62 and 124.63. In addition, notwithstanding 122.21(m)(4), the Director may accept applications for such extensions after the close of the public comment period on the permit if the applicant can show that information necessary to the development of the innovation was not available at the time the permit was written and that the innovative technology can be installed and operated in time to comply no later than 2 years after the date for compliance with the effluent limitation which would otherwise be applicable. (b) The procedure for appealing a decision on a request for a compliance extension is contained in 124.60 and 124.64. (Approved by the Office of Management and Budget under the control number 2040 - 0066) [49 FR 25981, June 25, 1984, as amended at 54 FR 257, Jan. 4, 1989]  yOx  Subpart D--Criteria and Standards for Determining Fundamentally Different Factors Under Sections  yO@ z 301(b)(1)(A), 301(b)(2) (A) and (E) of the Act *   yO!  125.30 Purpose and scope. (a) This subpart establishes the criteria and standards to be used in determining whether effluent limitations alternative to those required by promulgated EPA effluent limitations guidelines under sections 301 and 304 of the Act (hereinafter referred to as ``national limits'') should be imposed on a discharger because factors relating to the discharger's facilities, equipment, processes or other factors related to the discharger are fundamentally different from the factors considered by EPA in development of the national limits. This subpart applies to all national limitations promulgated under sections 301 and 304 of the Act, except for the BPT limits contained in 40 CFR 423.12 (steam electric generating point source category).' 0*((Ԍ (b) In establishing national limits, EPA takes into account all the information it can collect, develop and solicit regarding the factors listed in sections 304(b) and 304(g) of the Act. In some cases, however, data which could affect these national limits as they apply to a particular discharge may not be available or may not be considered during their development. As a result, it may be necessary on a case-by-case basis to adjust the national limits, and make them either more or less stringent as they apply to certain dischargers within an industrial category or subcategory. This will only be done if data specific to that discharger indicates it presents factors fundamentally different from those considered by EPA in developing the limit at issue. Any interested person believing that factors relating to a discharger's facilities, equipment, processes or other facilities related to the discharger are fundamentally different from the factors considered during development of the national limits may request a fundamentally different factors variance under 122.21(l)(1). In addition, such a variance may be proposed by the Director in the draft permit. (Secs. 301, 304, 306, 307, 308, and 501 of the Clean Water Act (the Federal Water Pollution Control Act Amendments of 1972, Pub. L. 92 - 500 as amended by the Clean Water Act of 1977, Pub. L. 95 - 217 (the ``Act''); Clean Water Act, Safe Drinking Water Act, Clean Air Act, Resource Conservation and Recovery Act: 42 U.S.C. 6905, 6912, 6925, 6927, 6974) [44 FR 32948, June 7, 1979, as amended at 45 FR 33512, May 19, 1980; 46 FR 9460, Jan. 28, 1981; 47 FR 52309, Nov. 19, 1982; 48 FR 14293, Apr. 1, 1983]  yO  125.31 Criteria. (a) A request for the establishment of effluent limitations under this subpart (fundamentally different factors variance) shall be approved only if: (1) There is an applicable national limit which is applied in the permit and specifically controls the pollutant for which alternative effluent limitations or standards have been requested; and (2) Factors relating to the discharge controlled by the permit are fundamentally different from those considered by EPA in establishing the national limits; and (3) The request for alternative effluent limitations or standards is made in accordance with the procedural requirements of part 124. (b) A request for the establishment of effluent limitations less stringent than those required by national limits guidelines shall be approved only if: (1) The alternative effluent limitation or standard requested is no less stringent than justified by the fundamental difference; and (2) The alternative effluent limitation or standard will ensure compliance with sections 208(e) and 301(b)(1)(C) of the Act; and (3) Compliance with the national limits (either by using the technologies upon which the national limits are based or by other control alternatives) would result in: (i) A removal cost wholly out of proportion to the removal cost considered during development of the national limits; or (ii) A non-water quality environmental impact (including energy requirements) fundamentally more adverse than the impact considered during development of the national limits. (c) A request for alternative limits more stringent than required by national limits shall be approved only if: (1) The alternative effluent limitation or standard requested is no more stringent than justified by the fundamental difference; and (2) Compliance with the alternative effluent limitation or standard would not result in: (i) A removal cost wholly out of proportion to the removal cost considered during development of the national limits; or (ii) A non-water quality environmental impact (including energy requirements) fundamentally more adverse than the impact considered during development of the national limits. (d) Factors which may be considered fundamentally different are: (1) The nature or quality of pollutants contained in the raw waste load of the applicant's process wastewater;' 0*((Ԍ {O ԙ[Comment: (1) In determining whether factors concerning the discharger are fundamentally different, EPA will consider, where relevant, the applicable development document for the national limits, associated technical and economic data collected for use in developing each respective national limit, records of legal proceedings, and written and printed documentation including records of communication, etc., relevant to the development of respective national limits which are kept on public file by EPA. (2) Waste stream(s) associated with a discharger's process wastewater which were not considered in the development of the national limits will not ordinarily be treated as fundamentally different under paragraph (a) of this section. Instead, national limits should be applied to the other streams, and the unique stream(s) should be subject to limitations based on section 402(a)(1) of the Act. See 125.2(c)(2).] (2) The volume of the discharger's process wastewater and effluent discharged; (3) Non-water quality environmental impact of control and treatment of the discharger's raw waste load; (4) Energy requirements of the application of control and treatment technology; (5) Age, size, land availability, and configuration as they relate to the discharger's equipment or facilities; processes employed; process changes; and engineering aspects of the application of control technology; (6) Cost of compliance with required control technololgy. (e) A variance request or portion of such a request under this section shall not be granted on any of the following grounds: (1) The infeasibility of installing the required waste treatment equipment within the time the Act allows.  {O [Comment: Under this section a variance request may be approved if it is based on factors which relate to the discharger's ability ultimately to achieve national limits but not if it is based on factors which merely affect the discharger's ability to meet the statutory deadlines of sections 301 and 307 of the Act such as labor difficulties, construction schedules, or unavailability of equipment.] (2) The assertion that the national limits cannot be achieved with the appropriate waste treatment facilities installed, if such assertion is not based on factor(s) listed in paragraph (d) of this section;  {O [Comment: Review of the Administrator's action in promulgating national limits is available only through the judicial review procedures set forth in section 509(b) of the Act.] (3) The discharger's ability to pay for the required waste treatment; or (4) The impact of a discharge on local receiving water quality. (f) Nothing in this section shall be construed to impair the right of any State or locality under section 510 of the Act to impose more stringent limitations than those required by Federal law.  yO  125.32 Method of application. (a) A written request for a variance under this subpart shall be submitted in duplicate to the Director in accordance with part 124, subpart F. (b) The burden is on the person requesting the variance to explain that: (1) Factor(s) listed in 125.31(b) regarding the discharger's facility are fundamentally different from the factors EPA considered in establishing the national limits. The requester should refer to all relevant material and information, such as the published guideline regulations development document, all associated technical and economic data collected for use in developing each national limit, all records of legal proceedings, and all written and printed documentation including records of communication, etc., relevant to the regulations which are kept on public file by the EPA; (2) The alternative limitations requested are justified by the fundamental difference alleged in paragraph (b)(1) of this section; and (3) The appropriate requirements of 125.31 have been met.' 0*((Ԍ yO ԙ~ Subpart E--Criteria for Granting Economic Variances From Best Available Technology Economically  yO  Achievable Under Section 301(c) of the Act--[Reserved] *   yOX ] Subpart F--Criteria for Granting Water Quality Related Variances Under Section 301(g) of the  yO  #Act--[Reserved] *   yO . Subpart G--Criteria for Modifying the Secondary Treatment Requirements Under Section 301(h) of the  yOx #Clean Water Act *   yO  Authority: Clean Water Act, secs. 301, 304, 501, Pub. L. 92 - 500, 86 Stat. 816, as amended by, Pub. L. 95 - 217, 91 Stat. 1566, as amended by, Pub. L. 97 - 117, 95 Stat. 1623 (33 U.S.C. 1311, 1314, 1361)  yO`  Source: 47 FR 53675, Nov. 26, 1982, unless otherwise noted.  yO  125.56 Scope and purpose. This subpart establishes the criteria to be applied by EPA in acting on section 301(h) requests for modifications to the secondary treatment requirements. It also establishes special permit conditions which must be included in any permit incorporating a section 301(h) modification of the secondary treatment requirements. (``section 301(h) modified permit'').  yO  125.57 Law governing issuance of a section 301(h) modified permit. (a) Section 301(h) of the Clean Water Act provides that: The Administrator, with the concurrence of the State, may issue a permit under section 402 which modifies the requirements of section (b)(1)(B) of this section with respect to the discharge of any pollutant from a publicly owned treatment works into marine waters, if the applicant demonstrates to the satisfaction of the Administrator that: (1) There is an applicable water quality standard specific to the pollutant for which the modification is requested, which has been identified under section 304(a)(6) of this Act; (2) Such modified requirements will not interfere with the attainment or maintenance of that water quality which assures protection of public water supplies and the protection and propagation of a balanced, indigenous population of shellfish, fish and wildlife, and allows recreational activities, in and on the water; (3) The applicant has established a system for monitoring the impact of such discharge on a representative sample of aquatic biota, to the extent practicable; (4) Such modified requirements will not result in any additional requirements on any other point or nonpoint source; (5) All applicable pretreatment requirements for sources introducing waste into such treatment works will be enforced; (6) To the extent practicable, the applicant has established a schedule of activities designed to eliminate the entrance of toxic pollutants from nonindustrial sources into such treatment works; (7) There will be no new or substantially increased discharges from the point source of the pollutant to which the modification applies above that volume of discharge specified in the permit. For the purposes of this subsection the phrase ``the discharge of any pollutant into marine waters'' refers to a discharge into deep waters of the territorial sea or the waters of the contiguous zone, or into saline estuarine waters where there is strong tidal movement and other hydrological and geological characteristics which the Administrator determines necessary to allow compliance with paragraph (2) of this subsection, and section 101(a)(2) of this Act. A municipality which applies secondary treatment shall be eligible to receive a permit pursuant to this subsection which modifies the requirements of subsection (b)(1)(B) of this section with respect to the discharge of any pollutant from any treatment works owned by such municipality into marine waters. No permit issued under this subsection' 0*(( shall authorize the discharge of sewage sludge into marine waters. (b) Section 301(j)(1) of the Clean Water Act provides that: Any application filed under this section for a modification of the provisions of: (A) Subsection (b)(1)(B) under subsection (h) of this section shall be filed not later than the 365th day which begins after the date of enactment of the Municipal Wastewater Treatment Construction Grant Amendments of 1981; (c) Section 22(e) of the Municipal Wastewater Treatment Construction Grant Amendments of 1981, Public Law 97 - 117, provides that: The amendments made by this section shall take effect on the date of enactment of this Act, except that no applicant, other than the city of Avalon, California, who applies after the date of enactment of this Act for a permit pursuant to subsection (h) of section 301 of the Federal Water Pollution Control Act which modifies the requirements of subsection (b)(1)(B) of section 301 of such Act shall receive such permit during the one-year period which begins on the date of enactment of this Act.  yO  125.58 Definitions. For the purpose of this subpart:  {Oh  (a) Administrator means the EPA Administrator or a person designated by the EPA Administrator.  {O2  (b) Altered discharge means any discharge other than a current discharge or improved discharge, as defined in this regulation.  {O  (c) Applicant means an applicant for a section 301(h) modified permit. Large applicants have populations contributing to their POTWs equal to or more than 50,000 people or average dry weather flows of 5.0 millions gallons per day (mgd) or more; small applicants have contributing populations of less than 50,000 people and average dry weather flows of less than 5.0 mgd. For the purposes of this definition the contributing population and flows shall be based on projections for the end of the five year permit term. Average dry weather flows shall be the average daily total discharge flows for the maximum month of the dry weather season.  {Ov  (d) Application means a final application previously submitted in accordance with the June 15, 1979, section 301(h) regulations (44 FR 34784) or an application submitted between December 29, 1981 and December 29, 1982. It does not include a preliminary application submitted in accordance with the June 15, 1979, section 301(h) regulations.  {O  (e) Application questionnaire means EPA's Applicant Questionnaire for Modification of Secondary Treatment  {Ob Requirements. Individual questionnaires for small applicants and for large applicants are published as appendix A and appendix B to this subpart, respectively.  {O  (f) Balanced, indigenous population means an ecological community which: (1) Exhibits characteristics similar to those of nearby, healthy communities existing under comparable but unpolluted environmental conditions; or (2) May reasonably be expected to become re-established in the polluted water body segment from adjacent waters if sources of pollution were removed.  {O  (g) Current discharge means the volume, composition, and location of an applicant's discharge as of anytime between December 27, 1977, and December 29, 1982, as designated by the applicant.  {Op"  (h) Improved discharge means the volume, composition and location of an applicant's discharge following: (1) Construction of planned outfall improvements, including, without limitation, outfall relocation, outfall repair, or diffuser modification; or (2) Construction of planned treatment system improvements to treatment levels or discharge characteristics; or (3) Implementation of a planned program to improve operation and maintenance of an existing treatment system or to eliminate or control the introduction of pollutants into the applicant's treatment works.  {O"'  (i) Industrial source means any source of nondomestic pollutants regulated under section 307 (b) or (c) of the"' 0*(( Clean Water Act which discharges into a POTW.  {O  (j) Modified discharge means the volume, composition and location of the discharge proposed by the applicant for which a modification under section 301(h) of the Act is requested. A modified discharge may be a current discharge, improved discharge, or altered discharge.  {O"  (k) Nonindustrial source means any source of pollutants which is not an industrial source.  {O  (l) Ocean waters means those coastal waters landward of the baseline of the territorial seas, the deep waters of the territorial seas, or the waters of the contiguous zone.  {O~  (m) Pesticides means demeton, guthion, malathion, mirex, methoxychlor and parathion.  {OH  (n) Public water supplies means water distributed from a public water system.  {O  (o) Public water system means a system for the provision to the public of piped water for human consumption, if such system has at least fifteen (15) service connections or regularly serves at least twenty-five (25) individuals. This term includes (1) any collection, treatment, storage and distribution facilities under the control of the operator of the system and used primarily in connection with the system, and (2) any collection or pretreatment storage facilities not under the control of the operator of the system which are used primarily in connection with the system.  {O  (p) Publicly owned treatment works (POTW) means a treatment works, as defined in section 212(2) of the Act, which is owned by a State, municipality or intermunicipal or interstate agency.  {O  (q) Saline estuarine waters means those semi-enclosed coastal waters which have a free connection to the territorial sea, undergo net seaward exchange with ocean waters, and have salinities comparable to those of the ocean. Generally, these waters are near the mouth of estuaries and have cross-sectional annual mean salinities greater than twenty-five (25) parts per thousand.  {O  (r) Secondary treatment means the term as defined in 40 CFR part 133.  {Oz  (s) Shellfish, fish and wildlife means any biological population or community that might be adversely affected by the applicant's modified discharge.  {O   (t) Stressed waters means those receiving environments in which an applicant can demonstrate to the satisfaction of the Administrator, that the absence of a balanced, indigenous population is caused solely by human perturbations other than the applicant's modified discharge.  {Of  (u) Toxic pollutants means those substances listed in 40 CFR 401.15.  {O0  (v) Water quality standards means applicable water quality standards which have been approved, left in effect, or promulgated under section 303 of the Clean Water Act.  {O  (w) Zone of initial dilution (ZID) means the region of initial mixing surrounding or adjacent to the end of the outfall pipe or diffuser ports, provided that the ZID may not be larger than allowed by mixing zone restrictions in applicable water quality standards.  yO  125.59 General.  {O<  (a) Basis for application. An application under this subpart shall be based on a current, improved, or altered discharge into ocean waters or saline estuarine waters  {O  (b) Prohibitions. No section 301(h) modified permit shall be issued: (1) Where such issuance would not assure compliance with all applicable requirements of this subpart and part 122; (2) For the discharge of sewage sludge; and (3) where such issuance would conflict with applicable provisions of State, local, or other Federal laws or Executive Orders. This includes compliance with the Coastal Zone Management Act of 1972, as amended, 16 U.S.C.  {O" 1451 et seq.; the Endangered Species Act of 1973, as amended, 16 U.S.C. 1531 et seq.; and title III of the Marine  {OJ# Protection, Research and Sanctuaries Act, as amended, 16 U.S.C. 1431 et seq.  {O$  (c) Applications. Each applicant for a modified permit under this subpart shall submit an application to EPA signed in compliance with 40 CFR 122.6(a)(3) which shall contain: (1) A signed, completed NPDES Application Standard form A, Parts I, II, III: (2) A completed Application Questionnaire; (3) The following certification:6'0*((Ԍ I certify under penalty of law that I have personally examined and am familiar with the information submitted in the attached document(s) and, based on my inquiry of those individuals immediately responsible for obtaining the information, I am convinced that the information is true, accurate and correct. I am aware that there are significant penalties for submitting false information, including the possibility of fine and imprisonment.  {O  (d) Revisions to applications. (1) POTWs which submitted applications in accordance with the June 15, 1979, Regulations (44 FR 34784) may revise their applications one time following a tentative decision to propose changes to treatment levels and/or outfall and diffuser location and design in accordance with 125.59(e)(2)(i); and (2) Other applicants may revise their applications one time following a tentative decision to propose changes to treatment levels and/or outfall and diffuser location and design in accordance with 125.59(e)(3)(i). Revisions by such applicants which propose downgrading treatment levels and/or outfall and diffuser location and design must be justified on the basis of substantial changes in circumstances beyond the applicant's control since the time of application submission. (3) Applicants authorized or requested to submit additional information under 125.59(f) may submit a revised application in accordance with 125.59(e)(2)(ii) where such additional information supports changes in proposed treatment levels and/or outfall location and diffuser design. The opportunity for such revision shall be in addition to the one-time revision allowed under 125.59(d) (1) and (2). (4) POTWs which revise their applications must: (i) Modify their NPDES form and Application Questionnaire as needed to assure that the information filed with their application is correct and complete; (ii) Provide additional analysis and data as needed to demonstrate compliance with this subpart; (iii) Obtain new State determinations under 125.60(b)(2) and 125.63(b); and (iv) Provide the certification described in paragraph (c)(3) of this section.  {O  (e) Deadlines and distribution--(1) Applications. (i) The original and one copy of an application must be submitted to the appropriate EPA Regional Administrator no later than December 29, 1982, and one copy to the Office of Marine Discharge Evaluation, WH - 546, U.S. Environmental Protection Agency, 401 M St. SW., Washington, DC, 20460. (ii) A copy of the application must be provided to the State and interstate agency(s) authorized to provide certification/concurrence under 124.53 to 124.55 on or before the date of the application is submitted to EPA.  {O  (2) Revisions to applications. (i) Applicants desiring to revise their applications under 125.59(d) (1) or (2) must: (A) Submit to the appropriate Regional Administrator a letter of intent to revise their application and a copy to the Office of Marine Discharge Evaluation either within 45 days of the date of EPA's tentative decision on their original application, or within 45 days of promulgation of this provision if a tentative decision has already been made, whichever is later. Following receipt by EPA of a letter of intent, further EPA proceedings on the tentative decision under 40 CFR part 124 will be stayed. (B) Submit the revised application as described for new applications in 125.59(e)(1) either within one year of the date of EPA's tentative decision on their original application or within one year of promulgation of this provision if a tentative decision has already been made, whichever is later. (ii) Applicants desiring to revise their applications under 125.59(d)(3) must submit the revised application as described for new applications in 125.59(e)(1) of this part concurrent with submission of the additional information under 125.59(f). (3) State determination deadline. State determinations, as required by 125.60(b)(2) and 125.63(b) shall be filed by the applicant with the appropriate Regional Administrator, no later than 90 days after submission of the application or revision to EPA. Extensions to this deadline may be provided by EPA upon request. However, EPA will not begin review of the application or revision until a favorable State determination is received by EPA. (f)(1) The Administrator may authorize or request an applicant to submit additional information by a specified date not to exceed one year from the date of authorization or request. (2) Applicants seeking authorization to submit additional information on current/modified discharge characteristics, water quality, biological conditions or oceanographic characteristics must: (i) Demonstrate that they made a diligent effort to provide such information with their application and were unable to do so, and'0*((Ԍ (ii) Submit a plan of study, including a schedule, for data collection and submittal of the additional information. EPA will review the plan of study and may require revisions prior to authorizing submission of the additional information.  {OX  (g) Decisions on section 301(h) modifications. (1) The decision to grant or deny a section 301(h) modification shall be made by the Administrator and shall be based on the applicant's demonstration that it has met all the requirements of 125.59 through 125.65. (2) No section 301(h) modified permit shall be issued until the appropriate State certification/concurrence is granted or waived pursuant to 124.54 or if the State denies certification/concurrence pursuant to 124.54. (3) In the case of a modification issued to an applicant in a State administering an approved permit program under 40 CFR part 123, the State Director may: (i) Revoke an existing permit as of the effective date of the EPA issued section 301(h) modified permit; and (ii) Cosign the section 301(h) modified permit, if the Director has indicated an intent to do so in the written concurrence. (4) Any section 301(h) modified permit shall: (i) Be issued in accordance with the procedures set forth in 40 CFR part 124, except that, because section 301(h) permits may only be issued by EPA, the terms ``Administrator or a person designated by the Administrator'' shall be substituted for the term ``Director'' as appropriate; and (ii) Contain all applicable terms and conditions set forth in 40 CFR part 122 and 125.67. (5) Appeals of section 301(h) determinations shall be governed by the procedures in 40 CFR part 124. (6) At the expiration of the section 301(h) modified permit, the POTW should be prepared to support the continuation of the modification based on studies and monitoring performed during the life of the permit. Upon a demonstration meeting the statutory criteria and requirements of this subpart, the permit may be renewed under the applicable procedures of 40 CFR part 124.  yO  125.60 Existence of and compliance with applicable water quality standards. (a) There must exist a water quality standard or standards applicable to the pollutant(s) for which a section 301(h) modified permit is requested, including: (1) Water quality standards for biochemical oxygen demand or dissolved oxygen; (2) Water quality standards for suspended solids, turbidity, light transmission, light scattering or maintenance of the euphotic-zone; and (3) Water quality standards for pH. (b) The applicant must: (1) Demonstrate that the modified discharge will comply with the above water quality standard(s); and (2) Provide a determination signed by the State or interstate agency(s) authorized to provide certification under 124.53 and 124.54 that the proposed modified discharge will comply with applicable provisions of State law including applicable water quality standards. This determination shall include a discussion of the basis for the conclusion reached.  yO  125.61 Attainment or maintenance of water quality which assures protection of public water supplies, the protection and propagation of a balanced, indigenous population of shellfish, fish, and wildlife, and allows  yO! recreational activities.  {O*#  (a) Physical characteristics of discharge. (1) The applicant's outfall and diffuser must be located and designed to provide adequate initial dilution, dispersion and transport of wastewater to meet all applicable water quality standards at and beyond the boundary of the zone of initial dilution: (i) During periods of maximum stratification; and (ii) During other periods when discharge characteristics, water quality, biological seasons, or oceanographic conditions indicate more critical situations may exist.'0*((Ԍ (2) Following initial dilution, the partially diluted wastewater and particulates must be transported and dispersed so as not to affect water use areas adversely (including recreational and fishing areas) and areas of biological sensitivity.  {OX  (b) Impact of discharge on public water supplies. (1) The applicant's modified discharge must allow for the attainment or maintenance of water quality which assures protection of public water supplies. (2) The applicant's modified discharge must not: (i) Prevent a planned or existing public water supply from being used, or from continuing to be used, as a public water supply; or (ii) Have the effect of requiring treatment over and above that which would be necessary in the absence of such discharge in order to comply with local, and EPA drinking water standards.  {O  (c) Biological impact of discharge. (1) The applicants modified discharge must allow for the attainment or maintenance of water quality which assures protection and propagation of a balanced indigenous population of shellfish, fish, and wildlife. (2) A balanced, indigenous population of shellfish, fish and wildlife must exist: (i) Immediately beyond the zone of initial dilution of the applicant's modified discharge and; (ii) In all other areas beyond the zone of initial dilution where marine life is actually or potentially affected by the applicant's modified discharge. (3) Conditions within the zone of initial dilution must not contribute to extreme adverse biological impacts, including, but not limited to, the destruction of distinctive habitats of limited distribution, the presence of disease epicenters, or the stimulation of phytoplankton blooms which have adverse effects beyond the zone of initial dilution. (4) In addition, for modified discharges into saline estuarine water: (i) Benthic populations within the zone of initial dilution must not differ substantially from the balanced, indigenous populations which exist immediately beyond the boundary of the zone of initial dilution; (ii) The discharge must not interfere with estuarine migratory pathways within the zone of initial dilution; and (iii) The discharge must not result in the accumulation of toxic pollutants or pesticides at levels which exert adverse effects on the biota within the zone of initial dilution.  {OT  (d) Impact of discharge on recreational activities. (1) The applicant's modified discharge must allow for the attainment or maintenance of water quality which allows for recreational activities beyond the zone of initial dilution, including, without limitation, swimming, diving, boating, fishing, and picnicking and sports activities along shorelines and beaches. (2) There must be no Federal, State, or local restrictions on recreational activities within the vicinity of the applicant's modified outfall unless such restrictions are routinely imposed around sewage outfalls. This exception shall not apply where the restriction would be lifted or modified, in whole or in part, if the applicant were discharging a secondary treatment effluent. (e) Additional requirements for applications based on improved or altered discharges. An application for a section 301(h) modified permit on the basis of an improved or altered discharge must include: (1) A demonstration that such improvements or alterations have been thoroughly planned and studied and can be completed or implemented expeditiously; (2) Detailed analyses projecting changes in average and maximum monthly flow rates and composition of the applicant's discharge which are expected to result from proposed improvements or alterations. (3) The assessements required by paragraphs (a) through (d) of this section based on its current discharge; (4) A detailed analysis of how the applicant's planned improvements or alterations will comply with the requirements of paragraphs (a) through (d) of this section.  {O!  (f) Stressed waters. If an applicant believes that its failure to meet the requirements of paragraphs (a) through (e) of this section is attributable to conditions resulting from human perturbations other than its modified discharge (including, without limitation, other municipal or industrial discharges, nonpoint source runoff and the applicant's previous discharges), the applicant must demonstrate, to the satisfaction of the Administrator, that its modified discharge does not or will not: (1) Contribute to, increase, or perpetuate such stressed conditions; (2) Contribute to further degradation of the biota or water quality if the level of human perturbation from other sources increases; and'0*((Ԍ (3) Retard the recovery of the biota or water quality if the level of human perturbation from other sources decreases.  yO   125.62 Establishment of a monitoring program.  {O  (a) General requirements. (1) The applicant must: (i) Have a monitoring program designed to provide data to evaluate the impact of the modified discharge on the marine biota, demonstrate compliance with applicable water quality standards, and measure toxic substances in the discharge; (ii) Describe the sampling techniques, schedules and locations (including appropriate control sites), analytical techniques, quality control and verification procedures to be used in the monitoring program; (iii) Demonstrate that it has the resources necessary to implement the program upon issuance of the modified permit and to carry it out for the life of the modified permit; and (iv) Determine the frequency and extent of the monitoring program taking into consideration the applicant's rate of discharge, quantities of toxic pollutants discharged, and potentially significant impacts on receiving water quality, marine biota, and designated water uses. (2) The Administrator may require revision of the proposed monitoring program before issuing a modified permit and during the term of any modified permit.  {O  (b) Biological monitoring program. The biological monitoring program for both small and large applicants shall provide data adequate to evaluate the impact of the modified discharge on the marine biota. (1) Biological monitoring shall include to the extent practicable: (i) Periodic surveys of the biological communities and populations which are most likely affected by the discharge to enable comparisons with baseline conditions described in the application and verified by sampling at the control stations/reference sites during the periodic surveys; (ii) Periodic determinations of the accumulation of toxic pollutants and pesticides in organisms and examination of adverse effects, such as disease, growth abnormalities, physiological stress or death; (iii) Sampling of sediments in areas of solids deposition in the vicinity of the ZID, in other areas of expected impact, and at appropriate reference sites to support the water quality and biological surveys and to measure the accumulation of toxic pollutants and pesticides; and (iv) Where the discharge would affect commercial or recreational fisheries, periodic assessments of the conditions and productivity of fisheries. (2) Small applicants are not subject to the requirements of paragraphs (b)(1) (ii) through (iv) of this section if they discharge at depths greater than 10 meters and can demonstrate through a suspended solids deposition analysis that there will be negligible seabed accumulation in the vicinity of the modified discharge. (3) For applicants seeking a section 301(h) modified permit based on: (i) A current discharge, biological monitoring shall be designed to demonstrate ongoing compliance with the requirements of 125.61(c); (ii) An improved discharge or altered discharge other than outfall relocation, biological monitoring shall provide baseline data on the current impact of the discharge and data which demonstrate, upon completion of improvements or alterations, that the requirements of 125.61(c) are met; or (iii) An improved or altered discharge involving outfall relocation, the biological monitoring shall: (A) Include the current discharge site until such discharge ceases; and (B) Provide baseline data at the relocation site to demonstrate the impact of the discharge and to provide the basis for demonstrating that requirements of 125.61(c) will be met.  {O,#  (c) Water quality monitoring program. The water quality monitoring program shall to the extent practicable: (1) Provide adequate data for evaluating compliance with applicable water quality standards; (2) Measure the presence of toxic pollutants which have been identified or reasonably may be expected to be present in the discharge.  {ON&  (d) Effluent monitoring program. In addition to the requirements of 40 CFR part 122, to the extent practicable, monitoring of the POTW effluent shall provide quantitative and qualitative data which measure toxic substances and'0*(( pesticides in the effluent and the effectiveness of the toxics control program.  yOX  125.63 Effect of discharge on other point and nonpoint sources. (a) No modified discharge may result in any additional pollution control requirements on any other point or nonpoint source. (b) The applicant shall obtain a determination from the State or interstate agency(s) having authority to establish wasteload allocations indicating whether the applicant's discharge will result in an additional treatment, pollution control, or other requirement on any other point or nonpoint sources. The State determination shall include a discussion of the basis for its conclusion.  yO(  125.64 Toxics control program.  {O  (a) Chemical analysis. (1) The applicant shall submit at the time of application a chemical analysis of its current discharge for all toxic pollutants and pesticides as defined in 125.58 (u) and (m). The analysis shall be performed on two 24 hour composite samples (one dry weather and one wet weather). Applicants may supplement or substitute chemical analyses if composition of the supplemental or substitute samples typifies that which occurs during dry and wet weather conditions. (2) Unless required by the State, this requirement shall not apply to any small section 301(h) applicant which certifies that there are no known or suspected sources of toxic pollutants or pesticides and documents the certification with an industrial user survey as described by 40 CFR 403.8(f)(2).  {O  (b) Identification of sources. The applicant shall submit at the time of application an analysis of the known or suspected sources of toxic pollutants or pesticides identified in 125.64(a). The applicant shall to the extent practicable categorize the sources according to industrial and nonindustrial types.  {OT  (c) Industrial pretreatment requirements. (1) An applicant which has known or suspected industrial sources of toxic pollutants shall have an approved pretreatment program, or shall develop an approved pretreatment program  {O by July 1, 1983, or the date established in their NPDES permit, whichever is earlier. See, 40 CFR part 403. (2) This requirement shall not apply to any applicant which has no known or suspected industrial sources of toxic pollutants or pesticides and so certifies to the Administrator. (3) The pretreatment program or proposed compliance schedule submitted by the applicant under this section shall be subject to revision as required by the Administrator prior to issuing any section 301(h) modified permit and during the term of any such permit. (4) Implementation of all existing pretreatment requirements and authorities must be maintained through the period of development of any additional pretreatment requirements that may be necessary to comply with the requirements of this subpart.  {O  (d) Nonindustrial source control program. (1) The applicant shall submit a proposed public education program designed to minimize the entrance of nonindustrial toxic pollutants and pesticides into its POTW(s) which shall be implemented no later than 18 months after issuance of a 301(h) modified permit. (2) The applicant shall also develop and implement additional nonindustrial source control programs on the earliest possible schedule. This requirement shall not apply to a small applicant which certifies that there are no known or suspected water quality, sediment accumulation, or biological problems related to toxic pollutants or pesticides in its discharge. (3) The applicant's nonindustrial source control programs under paragraph (d)(2) of this section shall include the following schedules which are to be implemented no later than 18 months after issuance of a 301(h) modified permits: (i) A schedule of activities for identifying nonindustrial sources of toxic pollutants and pesticides; and (ii) A schedule for the development and implementation of control programs, to the extent practicable, for nonindustrial sources of toxic pollutants and pesticides. (4) Each proposed nonindustrial source control program and/or schedule submitted by the applicant under this'0*(( section shall be subject to revision as determined by the Administrator prior to issuing any section 301(h) modified permit and during the term of any such permit.  yOX  Editorial Note: Industrial use survey portion of paragraph (a)(2) of 125.64, published at 47 FR 53675, Nov. 26, 1982, contains information collection requirements which will not be effective until OMB approval has been obtained.  yO@  125.65 Increase in effluent volume or amount of pollutants discharged. (a) No modified discharge may result in any new or substantially increased discharges of the pollutant to which the modification applies above the discharge specified in the section 301(h) modified permit. (b) Where pollutant discharges are attributable in part to combined sewer overflows, the applicant shall minimize existing overflows and prevent increases in the amount of pollutants discharged; (c) The applicant shall provide projections of effluent volume and mass loadings for any pollutants to which the modification applies in 5 year increments for the design life of its facility.  yO  125.66 [Reserved]  yO  125.67 Special conditions for section 301(h) modified permits. Each section 301(h) modified permit issued shall contain, in addition to all applicable terms and conditions required by 40 CFR part 122, the following: (a) Effluent limitations and mass loadings which will assure compliance with the requirements of this subpart; (b) A schedule or schedules of compliance for: (1) Pretreatment program development required by 125.64(c); (2) Nonindustrial toxics control program required by 125.64(d); and (3) Control of combined sewer overflows required by 125.65. (c) Monitoring program requirements that include: (1) Biomonitoring requirements of 125.62(b); (2) Water quality requirements of 125.62(c); (3) Effluent monitoring requirements of 125.62(d). (d) Reporting requirements that include the results of the monitoring programs required by paragraph (c) of this  yO section at such frequency as prescribed in the approved monitoring program.  yOX Appendix A--Small Applicant Questionnaire for Modification of Secondary Treatment  yO  Requirements  {M I. Introduction This questionnaire is to be used by small applicants for modification of secondary treatment requirements under section 301(h) of the Clean Water Act (CWA). A small applicant has a contributing population to its wastewater treatment facility of less than 50,000 and a projected average dry weather flow of less than 5.0 million gallons per  yO! day (mgd, 0.22m3/sec) [40 CFR 125.58(c)]. The questionnaire is in two sections, a general information and basic requirements section and a technical evaluation section. Satisfactory completion of this questionnaire is necessary to enable EPA to determine whether the applicant's modified discharge meets the criteria of section 301(h) and EPA regulations (40 CFR part 125, subpart G). Where applicants diligently try but are unable to collect and submit all the information at the time of application, EPA requires that a plan of study for gathering and submitting the data be provided with the application. 40 CFR 125.59(f) states the procedures governing such post-application data collection activities. Most small applicants should be able to complete the questionnaire using available information. However, small'0*(( POTWs with low initial dilution discharging into shallow waters or waters with poor dispersion and transport characteristics, discharging near distinctive and susceptible biological habitats, or discharging substantial quantities of toxics should anticipate the need to collect additional information and/or conduct additional analyses to demonstrate compliance with section 301(h) criteria. Such small applicants are directed to the related sections in Parts II and III of the large applicant questionnaire and must answer the relevant questions of these sections. If there are questions in this regard, applicants should contact the appropriate EPA Regional Office for guidance. Guidance for responding to this questionnaire is provided by the revised section 301(h) Technical Support Document. Where available information is incomplete and the applicant needs to collect additional data during the period it is preparing the application, EPA encourages the applicant to consult with EPA prior to data collection and submission of its application. Such consultation, particularly if the applicant provides a plan of study, will help assure that the proper data are gathered in the most efficient manner.  {M` II. General Information and Basic Data Requirements Applicants should answer all questions; where your response to a question is ``yes'', ``no'', or ``not applicable'' explain the basis for your response. Where your answer indicates that you cannot meet a regulatory or statutory criterion, discuss why you believe you qualify for a section 301(h) variance.  {OH  A. Treatment System Description: 1. Are you applying for a modification based on a current discharge, improved discharge, or altered discharge as defined in 40 CFR 125.58? [40 CFR 125.59(a)] 2. Description of the Treatment/Outfall System [40 CFR 125.61(a) and 125.61(e)] a. Provide detailed descriptions and diagrams of the treatment system and outfall configuration which you propose to satisfy the requirements of section 301(h) and 40 CFR part 125, subpart G. What is the total discharge design flow upon which this application is based? b. Provide a map showing the geographic location of the proposed outfall(s) (i.e., discharge). What is the latitude and longitude of the proposed outfall(s)? c. For a modification based on an improved or altered discharge, provide a description and diagram of your current treatment system and outfall configuration. Include the current outfall's latitude and longitude if different from the proposed outfall. 3. Effluent Limitations and Characteristics [40 CFR 125.60(b) and 125.61(e)(2)]  {O  a. Identify the final effluent limitations for five-day biochemical oxygen demand (BOD5), suspended solids, and pH upon which your application for a modification is based:  {O<  BOD5 ------ mg/l Suspended solids ------ mg/l pH ------ (range) b. Provide available data on the following effluent characteristics for your current discharge as well as for the modified discharge if different from the current discharge:  yO --Flow (m3/sec): minimum; average dry weather; average wet weather; maximum; annual average.  {O --BOD5 (mg/l) for the following plant flows: minimum; average dry weather; average wet weather; maximum; annual average. --Suspended solids (mg/l) for the following plant flows: minimum; average dry weather; average wet weather; maximum; annual average. --Toxic pollutants and pesticides (g/l): list each identified toxic pollutant and pesticide. --pH: minimum and maximum. --Dissolved oxygen (mg/l, prior to chlorination) for the following plant flows: minimum; average dry weather; average wet weather; maximum; annual average. --Immediate dissolved oxygen demand (mg/l). 4. Effluent Volume and Mass Emissions [40 CFR 125.61(e)(2) and 125.65] a. Provide analyses showing projections of effluent volume (annual average, m\3\/sec) and mass loadings (mt/year)  {O' of BOD5 and suspended solids for the design life of your treatment facility in five-year increments. If the application'0*(( is based upon an improved or altered discharge, the projections must be provided with and without the proposed improvements or alterations. b. Provide projections for the end of your five year permit term for (1) the treatment facility contributing population and (2) the average daily total discharge flow for the maximum month of the dry weather season. 5. Average Daily Industrial Flow (m\3\/sec) [40 CFR 125.64] Provide or estimate the average daily industrial inflow to your treatment facility for the same time increments as in question II. A. 4. a. of this appendix. 6. Combined Sewer Overflows [40 CFR 125.65(b)] a. Does (will) your collection and treatment system include combined sewer overflows? b. If yes, provide a description of your plan for minimizing combined sewer overflows to the receiving water. 7. Outfall/Diffuser Design. Provide available data on the following for your current discharge as well as for the modified discharge, if different from the current discharge: [40 CFR 125.61(a)(1)] --Diameter and length of the outfall(s) (meters) --Diameter and length of the diffuser(s) (meters) --Angle(s) of port orientations from horizontal (degrees) --Port diameter(s) in meters and the orifice contraction coefficient(s), if known --Vertical distance in meters from mean lower low water (or mean low water) surface and outfall port(s) centerline (meters) --Number of ports --Port spacing (meters)  yO --Design flow rate for each port, if multiple ports are used (m3/sec)  {O0  B. Receiving Water Description:  {O  1. Are you applying for a modification based on a discharge to the ocean or to a saline estuary (40 CFR 125.58(q))? [40 CFR 125.59(a)] 2. Is your current discharge or modified discharge to stressed waters? If yes, what are the pollution sources contributing to the stress? [40 CFR 125.61(f)] 3. Provide a description and available data on the seasonal circulation patterns in the vicinity of your current and modified discharge(s). [40 CFR 125.61(a)] 4. Ambient Water Quality Conditions During the Period(s) of Maximum Stratification. a. Provide available data on the following in the vicinity of the current discharge location and for the modified discharge location if different from the current discharge: [40 CFR 125.60(b)(1)] --Dissolved oxygen (mg/l) --Suspended solids (mg/l) --pH --Temperature (C) --Salinity (ppt) --Transparency (turbidity, percent light transmittance) --Other significant parameters (eg, nutrients, toxic pollutants and pesticides, fecal coliforms) b. Are there other periods when receiving water quality conditions may be more critical than the period(s) of maximum stratification? If so, describe these other critical periods and provide the data requested in 4.a. for the other critical periods. [40 CFR 125.61(a)(1)]  {Od"  C. Biological Conditions:  {O.#  1. a. Are distinctive habitats of limited distribution (such as kelp beds or coral reefs) located in areas potentially affected by the modified discharge? [40 CFR 125.61(c)] b. If yes, provide available information on types, extent, and location of habitats. 2. a. Are commercial or recreational fisheries located in areas potentially affected by the modified discharge? [40 CFR 125.61(c)] b. If yes, provide available information on types, location, and value of fisheries.'0*((Ԍ {O  D. State and Federal Laws [40 CFR 125.60]: 1. Are there water quality standards applicable to the following pollutants for which a modification is requested: --Biochemical oxygen demand or dissolved oxygen? --Suspended solids, turbidity, light transmission, light scattering, or maintenance of the euphotic zone? --pH of the receiving water? 2. If yes, what is the water use classification for your discharge area? What are the applicable standards for your discharge area for each of the parameters for which a modification is requested? Provide a copy of all applicable water quality standards or a citation to where they can be found. 3. Will the modified discharge [40 CFR 125.59(b)(3)]: --Be consistent with applicable State coastal zone management program(s) approved under the Coastal Zone  {O* Management Act as amended, 16 U.S.C. 1451 et seq.? (See, 16 U.S.C. 1456(c)(3)(A)). --Be located in a Marine sanctuary designated under Title III of the Marine Protection, Research and Sanctuaries Act  {O (MPRSA) as amended, 16 U.S.C. 1431 et seq. or in an estuarine sanctuary designated under the Coastal Zone Management Act as amended, 16 U.S.C. 1461? If located in a marine sanctuary designated under Title III of the MPRSA, attach a copy of any certification or permit required under regulations governing such marine sanctuary  {O (See, U.S.C. 1432(f)(2)).  {O --Be consistent with the Endangered Species Act as amended, 16 U.S.C. 1531 et seq? Provide the names of any threatened or endangered species that inhabit or obtain nutrients from waters that may be affected by the modified discharge. Identify any critical habitat that may be affected by the modified discharge and evaluate whether the  {O: modified discharge will affect threatened or endangered species or modify a critical habitat (See, 16 U.S.C. 1536(a)(2)). 4. Are you aware of any State or Federal Laws or regulations (other than the Clean Water Act or the three statutes identified in item 3 above) or an Executive Order which is applicable to your discharge? If yes, provide sufficient information to demonstrate that your modified discharge will comply with such law(s), regulation(s), or order(s). (40 CFR 125.59(b)(3))  {M| III. Technical Evaluation Answers to the following questions will be used to assess the effects of the modified discharge. The responses will be used by the State agency(s) in their determination (as required by 40 CFR 125.60(b)(2) and 125.63(b)) and by EPA in preparing its decision on the applicant's request for a section 301(h) variance. Your answers to the following questions must be supported by data and responses from Section II of this questionnaire. The analyses and calculations required below must show the input data for all calculations. Applicants should answer all questions; where your answer to a question is ``yes'', ``no'' or ``not applicable'' explain the basis for your response. Where your answer indicates that you cannot meet a regulatory or statutory criterion, discuss why you believe you qualify for a variance. If EPA decides to check calculations in an application, the formulas and methods provided in the revised section 301(h) Technical Support Document may be used for that purpose. If applicants use methods other than those provided in the Technical Support Document, such methods must be described by the applicant.  {O!  A. Physical Characteristics of Discharge (40 CFR 125.61(a)). 1. What is the lowest initial dilution for your current and modified discharge(s) during (1) the period(s) of maximum stratification? and (2) any other critical period(s) of discharge volume/composition, water quality, biological seasons, or oceanographic conditions? 2. What are the dimensions of the zone of initial dilution for your modified discharge(s)? 3. Will there be significant sedimentation of suspended solids in the vicinity of the modified discharge?  {OV&  B. Compliance with Applicable Water Quality Standards: [40 CFR 125.60(b) and 125.61(a)] 1. What is the concentration of dissolved oxygen immediately following initial dilution for the period(s) of '0*(( maximum stratification and any other critical period(s) of discharge volume/composition, water quality, biological seasons, or oceanographic conditions? 2. What is the farfield dissolved oxygen depression and resulting concentration due to BOD exertion of the wastefield during the period(s) of maximum stratification and any other critical period(s)? 3. What is the increase in receiving water suspended solids concentration immediately following initial dilution of the modified discharge(s)? 4. Does (will) the modified discharge comply with applicable water quality standards for: --Dissolved oxygen? --Suspended solids or surrogate standards? --pH? 5. Provide the determination required by 40 CFR 125.60(b)(2) or, if the determination has not yet been received, a copy of a letter to the appropriate agency(s) requesting the required determination.  {O(  C. Impact on Public Water Supplies [40 CFR 125.61(b)]: 1. Is there a planned or existing public water supply (desalinization facility) intake in the vicinity of the current or modified discharge? 2. If yes, (a) What is the location of the intake(s) (latitude and longitude)? (b) Will the modified discharge(s) prevent use of the intake(s) for public water supply? (c) Will the modified discharge(s) cause increased treatment requirements for the public water supply(s) to meet local, State, and EPA drinking water standards?  {Oj  D. Biological Impact of Discharge [40 CFR 125.61(c)]: 1. Does (will) a balanced indigenous population of shellfish, fish, and wildlife exist: (a) Immediately beyond the ZID of the current and modified discharge(s)? (b) In all other areas beyond the ZID where marine life is actually or potentially affected by the current and modified discharge(s)? 2. Have distinctive habitats of limited distribution been impacted adversely by the current discharge and will such habitats be impacted adversely by the modified discharge? 3. Have commercial or recreational fisheries been impacted adversely (e.g., warnings, restrictions, closures, or mass mortalities) by the current discharge and will they be impacted adversely by the modified discharge? 4. For discharges into saline estuarine waters: [40 CFR 125.61(c)(4)] (a) Does or will the current or modified discharge cause substantial differences in the benthic population with the ZID and beyond the ZID? (b) Does or will the current or modified discharge interfere with migratory pathways within the ZID? (c) Does or will the current or modified discharge result in bioaccumulation of toxic pollutants or pesticides at levels which exert adverse effects on the biota within the ZID? 5. For improved discharges, will the proposed improved discharge(s) comply with the requirements of 40 CFR 125.61(a) through 125.61(d)? [40 CFR 125.61(e)]. 6. For altered discharge(s), will the altered discharge(s) comply with the requirements of 40 CFR 125.61(a) through 125.61(d)? [40 CFR 125.61(e)] 7. If your current discharge is to stressed waters, does or will your current or modified discharge: [40 CFR 125.61(f)] (a) Contribute to, increase, or perpetuate such stressed condition? (b) Contribute to further degradation of the biota or water qualtiy if the level of human perturbation from other sources increases? (c) Retard the recovery of the biota or water quality if human perturbation from other sources decreases?  {O#  E. Impacts of Discharge on Recreational Activities: [40 CFR 125.61(d)] 1. Describe the existing or potential recreational activities likely to be affected by the modified discharge(s) beyond the zone of initial dilution. 2. What are the existing and potential impacts of the modified discharge(s) on recreational activities? Your answer should include, but not be limited to, a discussion of fecal coliforms.'0*((Ԍ 3. Are there any Federal, State or local restrictions on recreational activities in the vicinity of the modified discharge(s)? If yes, describe the restrictions and provide citations to available references. 4. If recreational restrictions exist, would such restrictions be lifted or modified if you were discharging a secondary treatment effluent?  {O   F. Establishment of a Monitoring Program (40 CFR 125.62): (1) Describe the biological, water quality, and effluent monitoring programs which you propose to meet the criteria of 40 CFR 125.62. (2) Describe the sampling techniques, schedules, and locations, analytical techniques, quality control and verification procedures to be used. (3) Describe the personnel and financial resources available to implement the monitoring programs upon issuance of a modified permit and to carry it out for the life of the modified permit.  {O  G. Effect of Discharge on Other Point and Nonpoint Sources: (40 CFR 125.63). 1. Does (will) your modified discharge(s) cause additional treatment or control requirements for any other point or nonpoint pollution source(s)? 2. Provide the determination required by 40 CFR 125.63(b) or, if the determination has not yet been received, a copy of a letter to the appropriate agency(s) requesting the required determination.  {O  H. Toxics Control Program [40 CFR 125.64] 1. a. Do you have any known or suspected industrial sources of toxic pollutants and pesticides? b. If no, provide the certification required by 40 CFR 125.64(a)(2). c. If yes, provide the results of wet and dry weather effluent analyses for toxic pollutants and pesticides. d. Provide an analysis of known or suspected industrial sources of toxic pollutants and pesticides identified in (1)(c) above. 2. Do you have an approved industrial pretreatment program? a. If yes, provide the date of EPA approval. b. If no, and if required by 40 CFR part 403 to have an industrial pretreatment program, provide a proposed schedule for development and implementation of your industrial pretreatment program to meet the requirements of 40 CFR part 403. 3. Describe the public education program you propose to minimize the entrance of nonindustrial toxic pollutants and pesticides into your treatment system. 4. a. Are there any known or suspected water quality, sediment accumulation, or biological problems related to toxic pollutants or pesticides from your modified discharge(s)? b. If no, provide the certification required by 40 CFR 125.64(d)(2) together with available supporting data. c. If yes, provide a schedule for development and implementation of nonindustrial toxics control programs to meet the requirements of 40 CFR 125.64(d)(3). (Approved by the Office of Management and Budget under control number 2000 - 0427)  yO [47 FR 53675, Nov. 26, 1982, as amended at 48 FR 31404, July 8, 1983]  yO~ Appendix B--Large Applicant Questionnaire for Modification of Secondary Treatment  yOF Requirements  {M I. Introduction This questionnaire is to be used by large applicants for modification of secondary treatment requirements under section 301(h) of the Clean Water Act (CWA). A large applicant has a population contributing to its wastewater treatment facility of at least 50,000 or a projected average dry weather flow of its discharge of at least 5.0 million gallons per day (mgd, 0.22 m\3\/sec) [40 CFR 125.58(c)]. The questionnaire is in two sections, a general information and basic requirements section and a technical evaluation section. Satisfactory completion of this questionnaire is necessary to enable EPA to determine whether the applicant's modified discharge meets the criteria of section 301(h) and EPA regulations (40 CFR part 125,'0*(( subpart G). Where applicants diligently try but are unable to collect and submit all the information at the time of application, EPA requires that a plan of study for gathering and submitting the data be provided with the application. 40 CFR 125.59(f) states the procedures governing such post-application data collection activities. Guidance for responding to the questions is provided by the revised section 301(h) Technical Support Document. Where available information is incomplete and the applicant needs to collect additional data during the period it is preparing the application, EPA encourages the applicant to consult with EPA prior to data collection and submission of its application. Such consultation, particularly if the applicant provides a plan of study, will help assure that the proper data are gathered in the most efficient manner.  {M II. General Information and Basic Data Requirements Applicants should answer all questions; where your response to a question is ``yes'', ``no'', or ``not applicable'' explain the basis for your response. Where your answer indicates that you cannot meet a regulatory or statutory criterion, discuss why you believe you qualify for a section 301(h) variance.  {O  A. Treatment System Description: 1. Are you applying for a modification based on a current discharge, improved discharge, or altered discharge as defined in 40 CFR 125.58? [40 CFR 125.59(a)] 2. Description of the Treatment/Outfall System [40 CFR 125.61(a) and 125.61(e)] a. Provide detailed descriptions and diagrams of the treatment system and outfall configuration which you propose to satisfy the requirements of section 301(h) and 40 CFR part 125, subpart G. What is the total discharge design flow upon which this application is based? b. Provide a map showing the geographic location of the proposed outfall(s) (i.e., discharge). What is the latitude and longitude of the proposed outfall(s)? c. For a modification based on an improved or altered discharge, provide a description and diagram of your current treatment system and outfall configuration. Include the current outfall's latitude and longitude, if different from the proposed outfall. 3. Effluent Limitations and Characteristics [40 CFR 125.60(b) and 125.61(e)(2)]  {O  a. Identify the final effluent limitations for five-day biochemical oxygen demand (BOD5), suspended solids, and pH upon which your application for a modification is based:  {O  BOD5 ------ mg/l Suspended solids ------ mg/l pH ------ (range) b. Provide data on the following effluent characteristics for your current discharge as well as for the modified discharge if different from the current discharge:  yO  Flow (m3/sec): minimum; average dry weather; average wet weather; annual average; maximum.  {O^  BOD5 (mg/l) for the following plant flows: minimum; average dry weather; average wet weather; maximum; annual average. Suspended solids (mg/l) for the following plant flows: minimum; average dry weather; average wet weather; maximum; annual average. Toxic pollutants and pesticides (ug/l): list each identified toxic pollutant and pesticide. pH: minimum and maximum. Dissolved oxygen (mg/l, prior to chlorination) for the following plant flows: minimum; average dry weather; average wet weather; maximum; annual average. Immediate dissolved oxygen demand (mg/l) 4. Effluent Volume and Mass Emissions [40 CFR 125.61(e)(2) and 125.65]  yO0#  a. Provide detailed analyses showing projections of effluent volume (annual average, m3/sec) and mass loadings  {O# (mt/year) of BOD5 amd suspended solids for the design life of your treatment facility in five-year increments. If the application is based upon an improved or altered discharge, the projections must be provided with and without the proposed improvements or alterations. b. Provide projections for the end of your five year permit term for (1) the treatment facility contributing population and (2) the average daily total discharge flow for the maximum month of the dry weather season.'0*((Ԍ yO  5. Average Daily Industrial Flow (m3/sec) [40 CFR 125.64] Provide or estimate the average daily industrial inflow to your treatment facility for the same time increments as in question II. A. 4. a. of this Appendix B. 6. Combined Sewer Overflows [40 CFR 125.65(b)] a. Does (will) your collection and treatment system include combined sewer overflows? b. If yes, provide a description of your plan for minimizing combined sewer overflows to the receiving water. 7. Outfall/Diffuser Design. Provide the following data for your current discharge as well as for the modified discharge, if different from the current discharge: [40 CFR 125.61(a)(1)] Diameter and length of the outfall(s) (meters) Diameter and length of the diffuser(s) (meters) Angle(s) of port orientations from horizontal (degrees) Port diameter(s) in meters and the orifice contraction coefficient(s), if known. Vertical distance in meters from mean lower low water (or mean low water) surface and outfall port(s) centerline (meters) Number of ports Port spacing (meters)  yO  Design flow rate for each port, if multiple ports are used (m3/sec)  {O  B. Receiving Water Description: 1. Are you applying for a modification based on a discharge to the ocean or to a saline estuary (40 CFR 125.58(q))? [40 CFR 125.59(a)] 2. Is your current discharge or modified discharge to stressed waters? If yes, what are the pollution sources contributing to the stress? [40 CFR 125.61(f)] 3. Provide a description and data on the seasonal circulation patterns in the vicinity of your current and modified discharge(s). [40 CFR 125.61(a)] 4. Oceanographic Conditions in the Vicinity of the Current and Proposed Modified Discharge(s). Provide data on the following: [40 CFR 125.61(a)] Lowest ten percentile current speed (m/sec) Predominant current speed (m/sec) and direction (true) during the four seasons Period(s) of maximum stratification (months) Period(s) of natural upwelling events (duration and frequency, months) Density profiles during period(s) of maximum stratification 5. Ambient Water Quality Conditions During the Period(s) of Maximum Stratification: at the zone of initial dilution (ZID) boundary, at other areas of potential impact, and at control stations: [40 CFR 125.61(a)(2)] a. Provide profiles (with depth) on the following for the current discharge location and for the modified discharge location, if different from the current discharge:  {O  BOD5 (mg/l) Dissolved oxygen (mg/l) Suspended solids (mg/l) pH Temperature (C) Salinity (ppt) Transparency (turbidity, percent light transmittance) Other significant parameters (e.g., nutrients, toxic pollutants and pesticides, fecal coliforms) b. Are there other periods when receiving water quality conditions may be more critical than the period(s) of maximum stratification? If so, describe these other critical periods and provide the data requested in 5.a. for the other critical period(s). [40 CFR 125.61(a)(1)] 6. Provide data on steady state sediment dissolved oxygen demand and dissolved oxygen demand due to resuspension of sediments in the vicinity of your current and modified discharge(s) (mg/l/day).  {O$  C. Biological Conditions: 1. Provide a detailed description of representative biological community (eg, plankton, macrobenthos, demersal fish, etc.) in the vicinity of your current and modified discharge(s): Within the ZID, at the ZID boundary, at other areas of potential, discharge-related impact, and at reference (control) sites. Community characteristics to be described shall include (but not be limited to) species composition; abundance;'0*(( dominance and diversity; spatial/temporal distribution; growth and reproduction; disease frequency; trophic structure and productivity patterns; presence of opportunistic species; bioaccumulation of toxic materials; and the occurrence of mass mortalities. 2. a. Are distinctive habitats of limited distribution (such as kelp beds or coral reefs) located in areas potentially affected by the modified discharge? [40 CFR 125.61(c)] b. If yes, provide information on type, extent, and location of habitats. 3. a. Are commercial or recreational fisheries located in areas potentially affected by the discharge? [40 CFR 125.61(c)] b. If yes, provide information on types, location, and value of fisheries.  {O  D. State and Federal Laws [40 CFR 125.60]: 1. Are there water quality standards applicable to the following pollutants for which a modification is requested: Biochemical oxygen demand or dissolved oxygen? Suspended solids, turbidity, light transmission, light scattering, or maintenance of the euphotic zone? pH of the receiving water? 2. If yes, what is the water use classification for your discharge area? What are the applicable standards for your discharge area for each of the parameters for which a modification is requested? Provide a copy of all applicable water quality standards or a citation to where they can be found. 3. Will the modified discharge: [40 CFR 125.59(b)(3)] Be consistent with applicable State coastal zone management program(s) approved under the Coastal Zone  {O Management Act as amended, 16 U.S.C. 1451 et seq.? (See, 16 U.S.C. 1456(c)(3)(A)) Be located in a marine sanctuary designated under Title III of the Marine Protection, Research and Sanctuaries  {Ol Act (MPRSA) as amended, 16 U.S.C. 1431 et seq. or in an estuarine sanctuary designated under the Coastal Zone Management Act as amended, 16 U.S.C. 1461? If located in a marine sanctuary designated under Title III of the MPRSA, attach a copy of any certification or permit required under regulations governing such marine sanctuary  {O (See, 16 U.S.C. 1432(f)(2)).  {O  Be consistent with the Endangered Species Act as amended, 16 U.S.C. 1531 et seq.? Provide the names of any threatened or endangered species that inhabit or obtain nutrients from waters that may be affected by the modified discharge. Identify any critical habitat that may be affected by the modified discharge and evaluate whether the  {O modified discharge will affect threatened or endangered species or modify a critical habitat (See, 16 U.S.C. 1536(a)(2)). 4. Are you aware of any State or Federal Laws or regulations (other than the Clean Water Act or the three statutes identified in item 3 above) or an Executive Order which is applicable to your discharge? If yes, provide sufficient information to demonstrate that your modified discharge will comply with such law(s), regulations, or order(s). [40 CFR 125.59(b)(3)]  {Md III. Technical Evaluation Answers to the following questions will be used to assess the effects of the modified discharge. The responses will be used by the State agency(s) in their determination (as required by 40 CFR 125.60(b)(2) and 125.63(b)), and by EPA in preparing its decision on the applicant's request for a section 301(h) variance. Your answers to the following questions must be supported by data and responses from Section II of this questionnaire. The analyses and calculations required below must show the input data for all calculations. Applicants should answer all questions; where your answer to a question is ``yes'', ``no'', or ``not applicable'', explain the basis for your response. Where your answer indicates that you cannot meet a regulatory or statutory criterion, discuss why you believe you qualify for a variance. If EPA decides to check calculations in an application, the formulas and methods provided in the revised section 301(h) Technical Support Document may be used for that purpose. If applicants use methods other than those provided in the Technical Support Document, such methods must be described by the applicant.  {O%  A. Physical Characteristics of Discharge [40 CFR 125.61(a)]: 1. What is the critical initial dilution for your current and modified discharge(s) during (1) the period(s) of maximum stratification? and (2) any other critical period(s) of discharge volume/composition, water quality, biological seasons, or oceanographic conditions?'0*((Ԍ 2. What are the dimensions of the zone of initial dilution for your modified discharge(s)? 3. What are the effects of ambient currents and stratification on dispersion and transport of the discharge plume/wastefield? 4. Sedimentation of suspended solids. a. What fraction of the modified discharge's suspended solids will accumulate within the vicinity of the modified discharge? b. What are the calculated area(s) and rate(s) of sediment accumulation within the vicinity of the modified  yOx discharge(s) (g/m2/yr)? c. What is the fate of settleable solids transported beyond the calculated sediment accumulation area?  {O  B. Compliance with Applicable Water Quality Standards [40 CFR 125.60(b) and 125.61(a)]: 1. What is the concentration of dissolved oxygen immediately following initial dilution for the period(s) of maximum stratification and any other critical period(s) of discharge volume/composition, water quality, biological seasons, or oceanographic conditions? 2. What is the farfield dissolved oxygen depression and resulting concentration due to BOD exertion of the wastefield during the period(s) of maximum stratification and any other critical period(s)? 3. What are the dissolved oxygen depressions and concentrations due to steady sediment demand and resuspension of sediments? 4. What is the increase in receiving water suspended solids concentration immediately following initial dilution of the modified discharge(s)? 5. What is the change in receiving water pH immediately following initial dilution of the modified discharge(s)? 6. Does (will) the modified discharge comply with applicable water quality standards for: Dissolved oxygen? Suspended solids or surrogate standards? pH? 7. Provide the determination required by 40 CFR 125.60(b)(2) or, if the determination has not yet been received, a copy of a letter to the appropriate agency(s) requesting the required determination.  {OR  C. Impact on Public Water Supplies [40 CFR 125.61(b)]. 1. Is there a planned or existing public water supply (desalinization facility) intake in the vicinity of the current or modified discharge? 2. If yes, a. What is the location of the intake(s) (latitude and longitude)? b. Will the modified discharge(s) prevent use of the intake(s) for public water supply? c. Will the modified discharge(s) cause increased treatment requirements for the public water supply(s) to meet local, State, and EPA drinking water standards?  {O  D. Biological Impact of Discharge [40 CFR 125.61(c)]: 1. Does (will) a balanced indigenous population of shellfish, fish, and wildlife exist: a. Immediately beyond the ZID of the current and modified discharge(s)? b. In all other areas beyond the ZID where marine life is actually or potentially affected by the current and modified discharge(s)? 2. Have distinctive habitats of limited distribution been impacted adversely by the current discharge and will such habitats be impacted adversely by the modified discharge? 3. Have commercial or recreational fisheries been impacted adversely by the current discharge (e.g., warnings, restrictions, closures, or mass mortalities) or will they be impacted adversely by the modified discharge? 4. Does the current or modified discharge cause the following within or beyond the ZID: [40 CFR 125.61(c)(3)] a. Mass mortality of fishes or invertebrates due to oxygen depletion, high concentrations of toxics or other conditions? b. An increased incidence of disease in marine organisms? c. An abnormal body burden of any toxic material in marine organisms? d. Any other extreme, adverse biological impacts? 5. For discharges into saline estuarine waters: [40 CFR 125.61(c)(4)] a. Does or will the current or modified discharge cause substantial differences in the benthic population within'0*(( the ZID and beyond the ZID? b. Does or will the current or modified discharge interfere with migratory pathways within the ZID? c. Does or will the current or modified discharge result in bioaccumulation of toxic pollutants or pesticides at levels which exert adverse effects on the biota within the ZID? 6. For improved discharges, will the proposed improved discharge(s) comply with the requirements of 40 CFR 125.61(a) through 125.61(d)? [40 CFR 125.61(e)] 7. For altered discharge(s), will the altered discharge(s) comply with the requirements of 40 CFR 125.61(a) through 125.61(d)? [40 CFR 125.61(e)] 8. If your current discharge is to stressed waters, does or will your current or modified discharges: [40 CFR 125.61(f)] a. Contribute to, increase, or perpetuate such stressed condition? b. Contribute to further degradation of the biota or water quality if the level of human perturbation from other sources increases? c. Retard the recovery of the biota or water quality if human perturbation from other sources decreases?  {O  E. Impacts of Discharge on Recreational Activities [40 CFR 125.61(d)]: 1. Describe the existing or potential recreational activities likely to be affected by the modified discharge(s) beyond the zone of initial dilution. 2. What are the existing and potential impacts of the modified discharge(s) on recreational activities? Your answer should include, but not be limited to, a discussion of fecal coliforms. 3. Are there any Federal, State or local restrictions on recreational activities in the vicinity of the modified discharge(s)? If yes, describe the restrictions and provide citations to available references. 4. If recreational restrictions exist, would such restrictions be lifted or modified if you were discharging a secondary treatment effluent?  {O  F. Establishment of a Monitoring Program (40 CFR 125.62): 1. Describe the biological, water quality, and effluent monitoring programs which you propose to meet the criteria of 40 CFR 125.62. 2. Describe the sampling techniques, schedules, and locations, analytical techniques, quality control and verification procedures to be used. 3. Describe the personnel and financial resources available to implement the monitoring programs upon issuance of a modified permit and to carry it out for the life of the modified permit.  {Ot  G. Effect of Discharge on Other Point and Nonpoint Sources (40 CFR 125.63): 1. Does (will) your modified discharge(s) cause additional treatment or control requirements for any other point or nonpoint pollution source(s)? 2. Provide the determination required by 40 CFR 125.63(b) or, if the determination has not yet been received, a copy of a letter to the appropriate agency(s) requesting the required determination.  {O^  H. Toxics Control Program (40 CFR 125.64): 1. a. Do you have any known or suspected industrial sources of toxic pollutants or pesticides? b. If no, provide the certification required by 40 CFR 125.64(c)(2). 2. Provide the results of wet and dry weather effluent analyses for toxic pollutants and pesticides as required by 40 CFR 125.64(a)(1). 3. Provide an analysis of known or suspected industrial sources of toxic pollutants and pesticides identified in 2. above. 4. Do you have an approved industrial pretreatment program? a. If yes, provide the date of EPA approval. b. If no, and if required by 40 CFR part 403 to have an industrial pretreatment program, provide a proposed schedule for development and implementation of your industrial pretreatment program to meet the requirements of 40 CFR part 403. 5. Describe the public education program you propose to minimize the entrance of nonindustrial toxic pollutants and pesticides into your treatment system. 6. Provide a schedule for development and implementation of a nonindustrial toxics control program to meet the requirements of 40 CFR 125.64(d)(3).'0*((Ԍ(Approved by the Office of Management and Budget under control number 2000 - 0427) [47 FR 53675, Nov. 26, 1982, as amended at 48 FR 31404, July 8, 1983]  yO  k Subpart H--Criteria for Determining Alternative Effluent Limitations Under Section 316(a) of the Act *   yOx  125.70 Purpose and scope. Section 316(a) of the Act provides that: ``With respect to any point source otherwise subject to the provisions of section 301 or section 306 of this Act, whenever the owner or operator of any such source, after opportunity for public hearing, can demonstrate to the satisfaction of the Administrator (or, if appropriate, the State) that any effluent limitation proposed for the control of the thermal component of any discharge from such source will require effluent limitations more stringent than necessary to assure the projection [sic] and propagation of a balanced, indigenous population of shellfish, fish and wildlife in and on the body of water into which the discharge is to be made, the Administrator (or, if appropriate, the State) may impose an effluent limitation under such sections on such plant, with respect to the thermal component of such discharge (taking into account the interaction of such thermal component with other pollutants), that will assure the protection and propagation of a balanced indigenous population of shellfish, fish and wildlife in and on that body of water.'' This subpart describes the factors, criteria and standards for the establishment of alternative thermal effluent limitations under section 316(a) of the Act in permits issued under section 402(a) of the Act.  yOP  125.71 Definitions. For the purpose of this subpart:  {O  (a) Alternative effluent limitations means all effluent limitations or standards of performance for the control of the thermal component of any discharge which are established under section 316(a) and this subpart.  {O:  (b) Representative important species means species which are representative, in terms of their biological needs, of a balanced, indigenous community of shellfish, fish and wildlife in the body of water into which a discharge of heat is made.  {O  (c) The term balanced, indigenous community is synonymous with the term balanced, indigenous population in the Act and means a biotic community typically characterized by diversity, the capacity to sustain itself through cyclic seasonal changes, presence of necessary food chain species and by a lack of domination by pollution tolerant species. Such a community may include historically non-native species introduced in connection with a program of wildlife management and species whose presence or abundance results from substantial, irreversible environmental modifications. Normally, however, such a community will not include species whose presence or abundance is attributable to the introduction of pollutants that will be eliminated by compliance by all sources with section 301(b)(2) of the Act; and may not include species whose presence or abundance is attributable to alternative effluent limitations imposed pursuant to section 316(a).  yO.#  125.72 Early screening of applications for section 316(a) variances. (a) Any initial application for a section 316(a) variance shall include the following early screening information: (1) A description of the alternative effluent limitation requested; (2) A general description of the method by which the discharger proposes to demonstrate that the otherwise applicable thermal discharge effluent limitations are more stringent than necessary;'0*((Ԍ (3) A general description of the type of data, studies, experiments and other information which the discharger intends to submit for the demonstration; and (4) Such data and information as may be available to assist the Director in selecting the appropriate representative important species. (b) After submitting the early screening information under paragraph (a) of this section, the discharger shall consult with the Director at the earliest practicable time (but not later than 30 days after the application is filed) to discuss the discharger's early screening information. Within 60 days after the application is filed, the discharger shall submit for the Director's approval a detailed plan of study which the discharger will undertake to support its section 316(a) demonstration. The discharger shall specify the nature and extent of the following type of information to be included in the plan of study: Biological, hydrographical and meteorological data; physical monitoring data; engineering or diffusion models; laboratory studies; representative important species; and other relevant information. In selecting representative important species, special consideration shall be given to species mentioned in applicable water quality standards. After the discharger submits its detailed plan of study, the Director shall either approve the plan or specify any necessary revisions to the plan. The discharger shall provide any additional information or studies which the Director subsequently determines necessary to support the demonstration, including such studies or inspections as may be necessary to select representative important species. The discharger may provide any additional information or studies which the discharger feels are appropriate to support the demonstration. (c) Any application for the renewal of a section 316(a) variance shall include only such information described in paragraphs (a) and (b) of this section and 124.73(c)(1) as the Director requests within 60 days after receipt of the permit application. (d) The Director shall promptly notify the Secretary of Commerce and the Secretary of the Interior, and any affected State of the filing of the request and shall consider any timely recommendations they submit. (e) In making the demonstration the discharger shall consider any information or guidance published by EPA to assist in making such demonstrations. (f) If an applicant desires a ruling on a section 316(a) application before the ruling on any other necessary permit terms and conditions, (as provided by 124.65), it shall so request upon filing its application under paragraph (a) of this section. This request shall be granted or denied at the discretion of the Director.  yO  Note: At the expiration of the permit, any discharger holding a section 316(a) variance should be prepared to support the continuation of the variance with studies based on the discharger's actual operation experience. [44 FR 32948, June 7, 1979, as amended at 45 FR 33513, May 19, 1980]  yO  125.73 Criteria and standards for the determination of alternative effluent limitations under section 316(a). (a) Thermal discharge effluent limitations or standards established in permits may be less stringent than those required by applicable standards and limitations if the discharger demonstrates to the satisfaction of the director that such effluent limitations are more stringent than necessary to assure the protection and propagation of a balanced, indigenous community of shellfish, fish and wildlife in and on the body of water into which the discharge is made. This demonstration must show that the alternative effluent limitation desired by the discharger, considering the cumulative impact of its thermal discharge together with all other significant impacts on the species affected, will assure the protection and propagation of a balanced indigenous community of shellfish, fish and wildlife in and on the body of water into which the discharge is to be made. (b) In determining whether or not the protection and propagation of the affected species will be assured, the Director may consider any information contained or referenced in any applicable thermal water quality criteria and thermal water quality information published by the Administrator under section 304(a) of the Act, or any other information he deems relevant. (c) (1) Existing dischargers may base their demonstration upon the absence of prior appreciable harm in lieu of predictive studies. Any such demonstrations shall show: (i) That no appreciable harm has resulted from the normal component of the discharge (taking into account the interaction of such thermal component with other pollutants and the additive effect of other thermal sources to a' 0*(( balanced, indigenous community of shellfish, fish and wildlife in and on the body of water into which the discharge has been made; or (ii) That despite the occurrence of such previous harm, the desired alternative effluent limitations (or appropriate modifications thereof) will nevertheless assure the protection and propagation of a balanced, indigenous community of shellfish, fish and wildlife in and on the body of water into which the discharge is made. (2) In determining whether or not prior appreciable harm has occurred, the Director shall consider the length of time in which the applicant has been discharging and the nature of the discharge.  yO@ e Subpart I--Criteria Applicable to Cooling Water Intake Structures Under Section 316(b) of the  yO #Act--[Reserved] *   yO  Subpart J--Criteria for Extending Compliance Dates Under Section 301(i) of the Act *   yO  125.90 Purpose and scope. Under section 301(i) (1) and (2) of the Act, extensions of the 1977 statutory deadline for compliance with certain treatment requirements may be granted by the Director through permit issuance or modification. This subpart establishes criteria for granting these extensions and the method for incorporating these extensions into permits issued under section 402(a) of the Act.  yO0  125.91 Definition. For purposes of this subpart, ``construction'' includes any one of the following: Preliminary planning to determine the feasibility of treatment works; engineering, architectural, legal fiscal, or economic investigations or studies, surveys, designs, plans, working drawings, specifications, procedures, or other necessary actions, erection, building, acquisition, alteration, remodeling, improvement, or extension of treatment works, or the inspection or supervision  {O of any of the foregoing items, Provided: That, completion of the facility and attainment of operational level by no later than July, 1, 1983, is a reasonable expectation.  yO  125.92 Requests for permit modification and issuance under section 301(i)(1) of the Act. Any owner or operator of a publicly owned treatment works (POTW) that requires construction to achieve limitations under section 301(b)(1)(B) or 301(b)(1)(C) of the Act may request modification or issuance of a permit extending the date for compliance with these limitations in accordance with the provisions of 122.21(m). (Clean Water Act, Safe Drinking Water Act, Clean Air Act, Resource Conservation and Recovery Act: 42 U.S.C. 6905, 6912, 6925, 6927, 6974) [45 FR 33513, May 19, 1980, as amended at 48 FR 14293, Apr. 1, 1983]  yOb"  125.93 Criteria for permit modification and issuance under section 301(i)(1) of the Act. No request for a permit modification or issuance under section 301(i)(1) shall be granted unless the Director finds that the POTW requires construction to achieve limitations under section 301(b)(1)(B) or 301(b)(1)(C) of the Act and did not complete construction for either of the following reasons: (a) The issuance of a notice to proceed under a construction contract for any segment of Step 3 project work (or if notice to proceed is not required, the execution of the construction contract) occurred before July 1, 1977, but'!0*(( construction could not physically be completed by July 1, 1977, despite all expeditious efforts of the POTW (see initiation of construction as defined in 40 CFR 35.905 for Step 3); or (b) Federal financial assistance was not available, or was not available in time for construction required to achieve these limitations, and the POTW did not in any significant way contribute to this unavailability or delay.  yO  125.94 Permit terms and conditions under section 301(i)(1) of the Act. (a) All permits modified or issued by the Director under section 301(i)(1) of the Act shall contain at a minimum the following permit terms and conditions: (1) The shortest reasonable schedule of compliance for achievement of limitations under section 301(b)(1) (B) and (C) but in no event later than July 1, 1983. This schedule shall be based upon the earliest date that Federal financial assistance will be available and construction can be completed and on any additional information submitted by the POTW or otherwise available. (i) When a facility plan has been approved in accordance with 40 CFR part 35, subpart E, this schedule shall contain dates certain for the completion of actions leading toward the attainment of statutory treatment limitations. (ii) When the POTW has not completed Step 1 of the construction grants process in accordance with 40 CFR part 35, subpart E, this schedule shall contain a date certain for the submission of a facility plan (completion of Step 1) upon which date the permit should be set to expire. In this case, in order to assure compliance by the POTW by July 1, 1983, the following requirements must be met: (A) Certification by the State, based on its one or five year project priority list developed pursuant to 40 CFR 35.915(c), that funding will be available in time to ensure compliance by July 1, 1983; and (B) Reporting once a year (if necessary) by the POTW as to its progress in obtaining Federal funding.  {O  [Comment: EPA recognizes that the date for submission of the facility plan may not take into account all the uncertainties of the Step 1 planning process. Because of the uncertainties inherent in the Step 1 planning process, EPA recommends that section 301(i)(1) requests (and permit issuance) for projects that are presently in Step 2 or  {O 3 should be acted on before requests from projects in Step 1. When Federal funding in the form of a Step 2 construction grant award is made available, and the Step 1 permit has expired, the permit is to be reissued containing a date certain schedule derived from the facility plan and coordinated with the State Project Priority List.] (2) A statement ensuring compliance with requirements under section 201 (b) through (g) of the Act consistent with the terms of the POTWs construction grant. (3) Abatement practices and interim effluent limitations reflecting optimum operation and maintenance of the existing facilities. These shall include: (i) Adequate operator staffing and training; (ii) Adequate laboratory and process controls; and (iii) Effluent limitations derived from reports of operation and maintenance inspections conducted by EPA or the State, or other guidance.  {OD [Comment: Only in exceptional circumstances should in-depth plant evaluations be conducted, e.g., when existing information does not represent the true capabilities of the plant.] (4) Interim effluent limitations reflecting other non-capital intensive measures for increased pollution control. This shall include any possible minor facility modifications such as piping changes, additional metering and instrumentation or the use of skimming and vacuuming equipment. When an existing POTW is currently violating limitations imposed under section 301(b)(1)(C) of the Act, interim effluent limitations shall be established to minimize adverse water quality impact; these limitations shall not be made less stringent or allow more pollutants to be discharged than are currently being discharged during the term of an extension granted under section 301(i)(1) of the Act. (b) If a POTW has industrial users, any permit issued or modified by the Director under section 301(i)(1) shall'"0*(( contain any terms and conditions necessary to ensure compliance with 40 CFR part 403.  yOX  125.95 Requests for permit modification or issuance under section 301(i)(2) of the Act. Any owner or operator of a point source other than a POTW that will not achieve the requirements of section 301(b)(1) (A) and (C) of the Act because it was scheduled to discharge into a POTW that is presently unable to accept the discharge without construction, may request modification or issuance of a permit extending the date of compliance with these limitations in accordance with the provisions of 122.21(l). (Clean Water Act, Safe Drinking Water Act, Clean Air Act, Resource Conservation and Recovery Act: 42 U.S.C. 6905, 6912, 6925, 6927, 6974) [45 FR 33513, May 19, 1980, as amended at 48 FR 14293, Apr. 1, 1983]  yO  125.96 Criteria for permit modification or issuance under section 301(i)(2) of the Act. No request for a permit modification or issuance under section 301(i)(2) of the Act shall be granted unless the Director finds that the discharger has failed to achieve the requirements of section 301(b)(1) (A) and (C) of the Act because it was scheduled to discharge into a POTW that is presently unable to accept the discharge without construction, and: (a) The discharger has indicated an intent to discharge into the POTW before July 1, 1977, in one of the following ways: (1) The discharger was issued a permit before July 1, 1977, based upon a discharge into a POTW; (2) The discharger had a binding contractual obligation before July 1, 1977, (enforceable against the discharger) to discharge into a POTW. 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 this paragraph. (3) A construction grant application made by the POTW before July 1, 1977, clearly demonstrated that the discharger was to discharge into the POTW; or (4) Engineering plans, architectural plans or working drawings prepared for the POTW before July 1, 1977, clearly demonstrated the discharger was to discharge into the POTW. Plans and drawings, such as those accompanying a bona fide application for a Federal construction grant, are sufficient only to the extent that they were truly representative of the intent of the discharger and the POTW; (b) The Director finds that the discharger has acted in good faith in its efforts to effectuate discharge into the POTW and to minimize or abate pollution prior to discharge into the POTW. This shall include the following findings: (1) Failure of the discharger to meet the July 1, 1977, deadline was for reasons beyond its control; (2) A history of a high degree of commitment to meet the requirements of the Act as manifested by cooperation with the State or EPA in attempting to resolve disputed issues; (3) No history of unjustified delay; (4) No past serious or intentional violations of the Act; and (5) All reasonable measures are being taken to expedite compliance.  {O`" [Comment: The Director may also consider whether the discharger has operated its facilities competently and responsibly and the extent to which the discharger has completed the necessary prerequisites to having its waste treated by the POTW.] (c) The POTW will be in operation and available to the discharger July 1, 1983; (d) The POTW will be able to meet secondary treatment and water quality standard effluent limitations by July 1, 1983, after receiving the waste from the discharger;'#0*((Ԍ (e) The discharger and the POTW have entered into an enforceable contract providing that: (i) The discharger agrees to discharge its waste to the POTW; (ii) The POTW agrees to accept and treat that waste by a date certain; and (iii) The discharger agrees to pay all user charges and industrial cost recovery charges required under section 204 of the Act; and (f) In the case of a discharge into an existing POTW, such POTW has been granted an extension under section 301(i)(1) of the Act.  yO  125.97 Permit terms and conditions under section 301(i)(2) of the Act. All permits modified or issued by the Director under section 301(i)(2) of the Act shall contain at a minimum the following permit terms and conditions: (a) The shortest reasonable schedule of compliance leading to discharge into the POTW, not to extend beyond the earliest date practicable for compliance, or beyond the final compliance date of any extension granted to the appropriate POTW under section 301(i)(1) of the Act, but in no event later than July 1, 1983. This schedule shall be based upon the earliest date by which the appropriate POTW can receive the waste from the discharger and the discharger can complete the necessary prerequisites to having its waste treated by that POTW. (b) Achievement of effluent limitations and standards under section 301(b)(1) (A) and (C) of the Act by the same final date in the schedule established in paragraph (a) of this section in the event that the permittee does not discharge its wastes to the POTW by the date established under paragraph (a) of this section. (c) Abatement practices and interim effluent limitations reflecting optimum operation and maintenance of the discharger's existing facilities. These shall include: (1) Effective performance of facility design removals; (2) Adequate operator staffing and training; and (3) Adequate laboratory and process control. (d) Interim effluent limitations reflecting other non-capital intensive measures for increased pollution control. (e) Requirements to meet applicable toxic effluent standards and prohibitions after they are promulgated under section 307(a) of the Act. (f) Requirements to ensure compliance with: (1) Pretreatment requirements imposed by the POTW pursuant to any extension granted to the POTW under section 301(i)(1); (2) Any State or local pretreatment requirements; and (3) Pretreatment standards as promulgated under section 307(b) of the Act.  {OX [Comment: The legislative history cites the following example: ``[I]f an industry is planning on participating in a municipal system which will not be available until January 1983, that industry would still have to install and operate pretreatment facilities within the time specified for compliance at the time the applicable pretreatment standard was promulgated and in no event later than three years from the date of said promulgation. Thus, if the pretreatment regulations are promulgated March 1, 1979, and require compliance within two years, that industry would be required to comply by March 1, 1981,'' H.R. Rep. No. 95 - 830, 95th Cong., 1st Sess., 12712 (daily ed. Dec. 6, 1977).] (g) Any water conservation requirements necessary to carry out the provisions of the Act or imposed by the POTW pursuant to the contract executed between the discharger and the POTW.  {O*# [Comment: The existence of such a contract is a prerequisite to granting an extension under section 301(i)(2)(B) of the Act and 125.96(e).]  yO% 8 Subpart K--Criteria and Standards for Best Management Practices Authorized Under Section 304(e) of  yOL& 'the Act * '$0*((Ԍ yO ԙ 125.100 Purpose and scope. This subpart describes how best management practices (BMPs) for ancillary industrial activities under section 304(e) of the Act shall be reflected in permits, including best management practices promulgated in effluent limitations under section 304 and established on a case-by-case basis in permits under section 402(a)(1) of the Act. Best management practices authorized by section 304(e) are included in permits as requirements for the purposes of section 301, 302, 306, 307, or 403 of the Act, as the case may be.  yO  125.101 Definition.  {O  Manufacture means to produce as an intermediate or final product, or by-product.  yO  125.102 Applicability of best management practices. Dischargers who use, manufacture, store, handle or discharge any pollutant listed as toxic under section 307(a)(1) of the Act or any pollutant listed as hazardous under section 311 of the Act are subject to the requirements of this Subpart for all activities which may result in significant amounts of those pollutants reaching waters of the United States. These activities are ancillary manufacturing operations including: Materials storage areas; in-plant transfer, process and material handling areas; loading and unloading operations; plant site runoff; and sludge and waste disposal areas.  yO  125.103 Permit terms and conditions. (a) Best management practices shall be expressly incorporated into a permit where required by an applicable EPA promulgated effluent limitations guideline under section 304(e); (b) Best management practices may be expressly incorporated into a permit on a case-by-case basis where determined necessary to carry out the provisions of the Act under section 402(a)(1). In issuing a permit containing BMP requirements, the Director shall consider the following factors: (1) Toxicity of the pollutant(s); (2) Quantity of the pollutant(s) used, produced, or discharged; (3) History of NPDES permit violations; (4) History of significant leaks or spills of toxic or hazardous pollutants; (5) Potential for adverse impact on public health (e.g., proximity to a public water supply) or the environment (e.g., proximity to a sport or commerical fishery); and (6) Any other factors determined to be relevant to the control of toxic or hazardous pollutants. (c) Best management practices may be established in permits under paragraph (b) of this section alone or in combination with those required under paragraph (a) of this section. (d) In addition to the requirements of paragraphs (a) and (b) of this section, dischargers covered under 125.102 shall develop and implement a best management practices program in accordance with 125.104 which prevents, or minimizes the potential for, the release of toxic or hazardous pollutants from ancillary activities to waters of the United States.  yO#  125.104 Best management practices programs. (a) BMP programs shall be developed in accordance with good engineering practices and with the provisions of this subpart. (b) The BMP program shall:'%0*((Ԍ (1) Be documented in narrative form, and shall include any necessary plot plans, drawings or maps; (2) Establish specific objectives for the control of toxic and hazardous pollutants. (i) Each facility component or system shall be examined for its potential for causing a release of significant amounts of toxic or hazardous pollutants to waters of the United States due to equipment failure, improper operation, natural phenomena such as rain or snowfall, etc. (ii) Where experience indicates a reasonable potential for equipment failure (e.g., a tank overflow or leakage), natural condition (e.g., precipitation), or other circumstances to result in significant amounts of toxic or hazardous pollutants reaching surface waters, the program should include a prediction of the direction, rate of flow and total quantity of toxic or hazardous pollutants which could be discharged from the facility as a result of each condition or circumstance; (3) Establish specific best management practices to meet the objectives identified under paragraph (b)(2) of this section, addressing each component or system capable of causing a release of significant amounts of toxic or hazardous pollutants to the waters of the United States;  {O(  (4) The BMP program: (i) May reflect requirements for Spill Prevention Control and Countermeasure (SPCC) plans under section 311 of the Act and 40 CFR part 151, and may incorporate any part of such plans into the BMP program by reference;  {OJ [Comment: EPA has proposed section 311(j)(1)(c) regulations (43 FR 39276) which require facilities subject to NPDES to develop and implement SPCC plans to prevent discharges of reportable quantities of designated hazardous substances. While subpart K requires only procedural activities and minor construction, the proposed 40 CFR part 151 (SPCC regulations) are more stringent and comprehensive with respect to their requirements for spill prevention. In developing BMP programs in accordance with subpart K, owners or operators should also consider the requirements of proposed 40 CFR part 151 which may address many of the same areas of the facility covered by this subpart.] (ii) Shall assure the proper management of solid and hazardous waste in accordance with regulations promulgated under the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976 (RCRA)  {O (40 U.S.C. 6901 et seq). Management practices required under RCRA regulations shall be expressly incorporated into the BMP program; and (iii) Shall address the following points for the ancillary activities in 125.102: (A) Statement of policy; (B) Spill Control Committee; (C) Material inventory; (D) Material compatibility; (E) Employee training: (F) Reporting and notification procedures; (G) Visual inspections; (H) Preventive maintenance; (I) Housekeeping; and (J) Security.  {O [Comment: Additional technical information on BMPs and the elements of a BMP program is contained in a publication entitled ``NPDES Best Management Practices Guidance Document.'' Copies may be obtained by written request to Edward A. Kramer (EN - 336), Office of Water Enforcement, Environmental Protection Agency, Washington, DC, 20460.] (c)(1) The BMP program must be clearly described and submitted as part of the permit application. An application which does not contain a BMP program shall be considered incomplete. Upon receipt of the application, the Director shall approve or modify the program in accordance with the requirements of this subpart. The BMP program as approved or modified shall be included in the draft permit (124.6). The BMP program shall be subject to the applicable permit issuance requirements of part 124, resulting in the incorporation of the program (including any'&0*(( modifications of the program resulting from the permit issuance procedures) into the final permit. (2) Proposed modifications to the BMP program which affect the discharger's permit obligations shall be submitted to the Director for approval. If the Director approves the proposed BMP program modification, the permit shall be modified in accordance with 122.62, provided that the Director may waive the requirements for public notice and opportunity for hearing on such modification if he or she determines that the modification is not significant. The BMP program, or modification thereof, shall be fully implemented as soon as possible but not later than one year after permit issuance, modification, or revocation and reissuance unless the Director specifies a later date in the permit.  yO  Note: A later date may be specified in the permit, for example, to enable coordinated preparation of the BMP program required under these regulations and the SPCC plan required under 40 CFR part 151 or to allow for the completion of construction projects related to the facility's BMP or SPCC program. (d) The discharger shall maintain a description of the BMP program at the facility and shall make the description available to the Director upon request. (e) The owner or operator of a facility subject to this subpart shall amend the BMP program in accordance with the provisions of this subpart whenever there is a change in facility design, construction, operation, or maintenance which materially affects the facility's potential for discharge of significant amounts of hazardous or toxic pollutants into the waters of the United States. (f) If the BMP program proves to be ineffective in achieving the general objective of preventing the release of significant amounts of toxic or hazardous pollutants to those waters and the specific objectives and requirements under paragraph (b) of this section, the permit and/or the BMP program shall be subject to modification to incorporate revised BMP requirements. (Clean Water Act, Safe Drinking Water Act, Clean Air Act, Resource Conservation and Recovery Act: 42 U.S.C. 6905, 6912, 6925, 6027, 6974) [44 FR 32948, June 7, 1979, as amended at 45 FR 33513, May 19, 1980; 48 FR 14293, Apr. 1, 1983]  yO t Subpart L--Criteria and Standards for Imposing Conditions for the Disposal of Sewage Sludge Under  yO .Section 405 of the Act [Reserved] *   yO8  Subpart M--Ocean Discharge Criteria *   yO  Source: 45 FR 65953, Oct. 3, 1980, unless otherwise noted.  yO   125.120 Scope and purpose. This subpart establishes guidelines for issuance of National Pollutant Discharge Elimination System (NPDES) permits for the discharge of pollutants from a point source into the territorial seas, the contiguous zone, and the oceans.  yO!  125.121 Definitions.  {O(#  (a) Irreparable harm means significant undesirable effects occurring after the date of permit issuance which will not be reversed after cessation or modification of the discharge.  {O$  (b) Marine environment means that territorial seas, the contiguous zone and the oceans.  {O%  (c) Mixing zone means the zone extending from the sea's surface to seabed and extending laterally to a distance of 100 meters in all directions from the discharge point(s) or to the boundary of the zone of initial dilution as calculated by a plume model approved by the director, whichever is greater, unless the director determines that the''0*(( more restrictive mixing zone or another definition of the mixing zone is more appropriate for a specific discharge.  {O  (d) No reasonable alternatives means: (1) No land-based disposal sites, discharge point(s) within internal waters, or approved ocean dumping sites within a reasonable distance of the site of the proposed discharge the use of which would not cause unwarranted economic impacts on the discharger, or, notwithstanding the availability of such sites, (2) On-site disposal is environmentally preferable to other alternative means of disposal after consideration of: (i) The relative environmental harm of disposal on-site, in disposal sites located on land, from discharge point(s) within internal waters, or in approved ocean dumping sites, and (ii) The risk to the environment and human safety posed by the transportation of the pollutants.  {O   (e) Unreasonable degradation of the marine environment means: (1) Significant adverse changes in ecosystem diversity, productivity and stability of the biological community within the area of discharge and surrounding biological communities, (2) Threat to human health through direct exposure to pollutants or through consumption of exposed aquatic organisms, or (3) Loss of esthetic, recreational, scientific or economic values which is unreasonable in relation to the benefit derived from the discharge.  yO  125.122 Determination of unreasonable degradation of the marine environment. (a) The director shall determine whether a discharge will cause unreasonable degradation of the marine environment based on consideration of: (1) The quantities, composition and potential for bioaccumulation or persistence of the pollutants to be discharged; (2) The potential transport of such pollutants by biological, physical or chemical processes; (3) The composition and vulnerability of the biological communities which may be exposed to such pollutants, including the presence of unique species or communities of species, the presence of species identified as endangered or threatened pursuant to the Endangered Species Act, or the presence of those species critical to the structure or function of the ecosystem, such as those important for the food chain; (4) The importance of the receiving water area to the surrounding biological community, including the presence of spawning sites, nursery/forage areas, migratory pathways, or areas necessary for other functions or critical stages in the life cycle of an organism. (5) The existence of special aquatic sites including, but not limited to marine sanctuaries and refuges, parks, national and historic monuments, national seashores, wilderness areas and coral reefs; (6) The potential impacts on human health through direct and indirect pathways; (7) Existing or potential recreational and commercial fishing, including finfishing and shellfishing; (8) Any applicable requirements of an approved Coastal Zone Management plan; (9) Such other factors relating to the effects of the discharge as may be appropriate; (10) Marine water quality criteria developed pursuant to section 304(a)(1). (b) Discharges in compliance with section 301(g), 301(h), or 316(a) variance requirements or State water quality standards shall be presumed not to cause unreasonable degradation of the marine environment, for any specific pollutants or conditions specified in the variance or the standard.  yO!  125.123 Permit requirements. (a) If the director on the basis of available information including that supplied by the applicant pursuant to 125.124 determines prior to permit issuance that the discharge will not cause unreasonable degradation of the marine environment after application of any necessary conditions specified in 125.123(d), he may issue an NPDES permit containing such conditions. (b) If the director, on the basis of available information including that supplied by the applicant pursuant to 125.124 determines prior to permit issuance that the discharge will cause unreasonable degradation of the marine'(0*(( environment after application of all possible permit conditions specified in 125.123(d), he may not issue an NPDES permit which authorizes the discharge of pollutants. (c) If the director has insufficient information to determine prior to permit issuance that there will be no unreasonable degradation of the marine environment pursuant to 125.122, there shall be no discharge of pollutants into the marine environment unless the director on the basis of available information, including that supplied by the applicant pursuant to 125.124 determines that: (1) Such discharge will not cause irreparable harm to the marine environment during the period in which monitoring is undertaken, and (2) There are no reasonable alternatives to the on-site disposal of these materials, and (3) The discharge will be in compliance with all permit conditions established pursuant to paragraph (d) of this section. (d) All permits which authorize the discharge of pollutants pursuant to paragraph (c) of this section shall: (1) Require that a discharge of pollutants will: (i) Following dilution as measured at the boundary of the mixing zone not exceed the limiting permissible concentration for the liquid and suspended particulate phases of the waste material as described in 227.27(a) (2) and (3), 227.27(b), and 227.27(c) of the Ocean Dumping Criteria; and (ii) not exceed the limiting permissible concentration for the solid phase of the waste material or cause an accumulation of toxic materials in the human food chain as described in 227.27 (b) and (d) of the Ocean Dumping Criteria; (2) Specify a monitoring program, which is sufficient to assess the impact of the discharge on water, sediment, and biological quality including, where appropriate, analysis of the bioaccumulative and/or persistent impact on aquatic life of the discharge; (3) Contain any other conditions, such as performance of liquid or suspended particulate phase bioaccumulation tests, seasonal restrictions on discharge, process modifications, dispersion of pollutants, or schedule of compliance for existing discharges, which are determined to be necessary because of local environmental conditions, and (4) Contain the following clause: In addition to any other grounds specified herein, this permit shall be modified or revoked at any time if, on the basis of any new data, the director determines that continued discharges may cause unreasonable degradation of the marine environment.  yO  125.124 Information required to be submitted by applicant. The applicant is responsible for providing information which the director may request to make the determination required by this subpart. The director may require the following information as well as any other pertinent information: (a) An analysis of the chemical constituents of any discharge; (b) Appropriate bioassays necessary to determine the limiting permissible concentrations for the discharge; (c) An analysis of initial dilution; (d) Available process modifications which will reduce the quantities of pollutants which will be discharged; (e) Analysis of the location where pollutants are sought to be discharged, including the biological community and the physical description of the discharge facility; (f) Evaluation of available alternatives to the discharge of the pollutants including an evaluation of the possibility of land-based disposal or disposal in an approved ocean dumping site.