Variances for Thermal Discharges

(1) Definitions. For the purpose of 314 CMR 3.12: (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 33 U.S.C. 1251 § 316(a) and 314 CMR 3.12. (b) Representative Important Species means species which are representative, in terms of their biological needs, of a balanced, indigenous community of shellfish, fish and wildlife in the body of water into which a discharge of heat is made. (c) The term Balanced, Indigenous Community is synonymous with the term Balanced Indigenous Population in 33 U.S.C. 1251 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 33 U.S.C. 1251 § 301(b)(2), and may not include species whose presence or abundance is attributable to alternative effluent limitations imposed pursuant to 33 U.S.C. 1251 § 316(a). (2) Application Procedures. (a) Any initial application for a variance under 314 CMR 3.12 shall include the following early screening information: 1. A description of the alternative effluent limitation requested; 2. A general description of the method by which the discharger proposes to demonstrate that the otherwise applicable thermal discharge effluent limitations are more stringent than necessary; 3. A general description of the type of data, studies, experiments and other information which the discharger intends to submit for the demonstration; and 4. Such data and information as may be available to assist the Department in selecting the appropriate representative important species. (b) After submitting the early screening information under 314 CMR 3.12(2)(a), the discharger shall consult with the Department 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 Department's approval a detailed plan of study which the discharger will undertake to support its 33 U.S.C. 1251 § 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. After the discharger submits its detailed plan of study, the Department shall either approve the plan or specify any necessary revisions to the plan. The discharger shall provide any additional information or studies which the Department 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 33 U.S.C. 1251 § 316(a) variance shall include only such information described in 314 CMR 3.12(2)(a) and (b) as the Department requests after receipt of the permit application. (d) The Department 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 33 U.S.C. 1251 § 316(a) application before the ruling on any other necessary permit terms and conditions, it shall so request upon filing its application under 314 CMR 3.12(2)(a). This request shall be granted or denied at the discretion of the Department. (g) At the expiration of the permit, any discharger holding a 33 U.S.C. 1251 § 316(a) variance should be prepared to support the continuation of the variance with studies based on the discharger's actual operation experience. (3) Criteria for Determination of Alternative Effluent Limitations for Thermal Discharges. (a) The discharger must demonstrate to the satisfaction of the Department that applicable standards and limitations for thermal discharges 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 Department may consider any information contained or referenced in any applicable thermal water quality criteria and thermal water quality information published by the Administrator under 33 U.S.C. 1251 § 304(a), or any other information the Department 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: a. That no appreciable harm has resulted from the thermal component of the discharge (taking into account the interaction of such thermal component with other pollutants and the additive effect of other thermal sources on a balanced, indigenous community of shellfish, fish and wildlife in and on the body of water into which the discharge has been made); or b. 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 Department shall consider the length of time the applicant has been discharging and the nature of the discharge.