FUNDAMENTALLY DIFFERENT FACTORS.

SEC. 306. FUNDAMENTALLY DIFFERENT FACTORS. (a) General Rule.—Section 301 is amended by adding at the end the following new subsections: “(n) Fundamentally Different Factors.— “(1) General rule.—The Administrator, with the concurrence of the State, may establish an alternative requirement under subsection (b)(2) or section 307(b) for a facility that modifies the requirements of national effluent limitation guidelines or categorical pretreatment standards that would otherwise be applicable to such facility, if the owner or operator of such facility demonstrates to the satisfaction of the Administrator that— “(A) the facility is fundamentally different with respect to the factors (other than cost) specified in section 304(b) or 304(g) and considered by the Administrator in establishing such national effluent limitation guidelines or categorical pretreatment standards; “(B) the application— “(i) is based solely on information and supporting data submitted to the Administrator during the rulemaking for establishment of the applicable national effluent limitation guidelines or categorical pretreatment standard specifically raising the factors that are fundamentally different for such facility; or “(ii) is based on information and supporting data referred to in clause (i) and information and supporting data the applicant did not have a reasonable opportunity to submit during such rulemaking; “(C) the alternative requirement is no less stringent than justified by the fundamental difference; and “(D) the alternative requirement will not result in a nonwater quality environmental impact which is markedly more adverse than the impact considered by the Administrator in establishing such national effluent limitation guideline or categorical pretreatment standard. “(2) Time limit for applications.—An application for an alternative requirement which modifies the requirements of an effluent limitation or pretreatment standard under this subsection must be submitted to the Administrator within 180 days after the date on which such limitation or standard is established or revised, as the case may be. “(3) Time limit for decision.—The Administrator shall approve or deny by final agency action an application submitted under this subsection within 180 days after the date such application is filed with the Administrator. “(4) Submission of information.—The Administrator may allow an applicant under this subsection to submit information and supporting data until the earlier of the date the application is approved or denied or the last day that the Administrator has to approve or deny such application. “(5) Treatment of pending applications.—For the purposes of this subsection, an application for an alternative requirement based on fundamentally different factors which is pending on 101 STAT. 36the date of the enactment of this subsection shall be treated as having been submitted to the Administrator on the 180th day following such date of enactment. The applicant may amend the application to take into account the provisions of this subsection. “(6) Effect of submission of application.—An application for an alternative requirement under this subsection shall not stay the applicant’s obligation to comply with the effluent limitation guideline or categorical pretreatment standard which is the subject of the application. “(7) Effect of denial.—If an application for an alternative requirement which modifies the requirements of an effluent limitation or pretreatment standard under this subsection is denied by the Administrator, the applicant must comply with such limitation or standard as established or revised, as the case may be. “(8) Reports.—Every 6 months after the date of the enactment of this subsection, the Administrator shall submit to the Committee on Environment and Public Works of the Senate and the Committee on Public Works and Transportation of the House of Representatives a report on the status of applications for alternative requirements which modify the requirements of effluent limitations under section 301 or 304 of this Act or any national categorical pretreatment standard under section 307(b) of this Act filed before, on, or after such date of enactment. “(o) Application Fees.—The Administrator shall prescribe and collect from each applicant fees reflecting the reasonable administrative costs incurred in reviewing and processing applications for modifications submitted to the Administrator pursuant to subsections (c), (g), (i), (k), (m), and (n) of section 301, section 304(d)(4), and section 316(a) of this Act. All amounts collected by the Administrator under this subsection shall be deposited into a special fund of the Treasury entitled ‘Water Permits and Related Services’ which shall thereafter be available for appropriation to carry out activities of the Environmental Protection Agency for which such fees were collected.”. (b) Conforming Amendment.— Section 301(1) is amended by striking out “The” and inserting in lieu thereof “Other than as provided in subsection (n) of this section, the”. (c) Phosphate Fertilizer Effluent Limitation.— (1) Issuance of permit.—As soon as possible after the date of the enactment of this Act, but not later than 180 days after such date of enactment, the Administrator shall issue permits under section 402(a)(1)(B) of the Federal Water Pollution Control Act with respect to facilities— (A) which were under construction on or before April 8, 1974, and (B) for which the Administrator is proposing to revise the applicability of the effluent limitation established under section 301(b) of such Act for phosphate subcategory of the fertilizer manufacturing point source category to exclude such facilities. (2) Limitations on statutory construction.—Nothing in this section shall be construed— (A) to require the Administrator to permit the discharge of gypsum or gypsum waste into the navigable waters, 101 STAT. 37 (B) to affect the procedures and standards applicable to the Administrator in issuing permits under section 402(a)(1)(B) of the Federal Water Pollution Control Act, and (C) to affect the authority of any State to deny or condition certification under section 401 of such Act with respect to the issuance of permits under section 402(a)(1)(B) of such Act.