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6 389.616 373.821 1.00 391.813 M" 375.818 0.87 Mclecular KV pcak CL-intelied standard peaks tons which can De monitored in TCDD analyses for confirmation purposes ANEJO C-6 40 CFR Parte 122 National Pollutant Discharge Elimination System (NPDES) S-766 131:1001 ENVIRONMENTAL PROTECTION AGENCY NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM PERMIT REGULATIONS (40 CFR 122; 45 FR 33418, May 19, 1980, Effective July 18, 1980; Amended as shown in Volume 40, Code of Federal Regulations, Revised as of July 1, 1981; Amended by 46 FR 35091, 35249, July 7, 1981; 46 FR 36703, July 15, 1981; 46 FR 43160, August 27, 1981; 46 FR 55113, November 6, 1981; 47 FR 4996, February 3, 1982; 47 FR 8306, February 25, 1982; 47 FR 15306, April 8, 1982; 47 FR 24920, June 8, 1982; 47 FR 27533, June 24, 1982; 47 FR 32129, 32369, July 26, 1982, Effective January 23, 1982; 47 FR 41563, September 21, 1982; 48 FR 2511, January 19, 1983; 48 FR 2939, January 21, 1983; 48 FR 3981, January 28, 1983; Revised by 48 FR 14153, April 1, 1983; Amended by 48 FR 39619, September 1, 1983; 49 FR 25981, June 25, 1984; 49 FR 31842, August 8, 1984; 49 FR 37009, September 20. 1984: 49 FR 38046, September 26, 1984; 50 FR 4513, January 31, 1985; Corrected by 50 FR 6940, February 19, 1985; 50 FR 7912, February 27, 1985; 50 FR 35203, August 29, 1985; 51 FR 20430, June 4, 1986) (Editor's note: The modified information requirements contained in $122.29(c)(5), 122.41(I)(1). 122.42(a), 122.45(b), and 122.62(a), have not been approved by the Office of Management and Budget (OMB) and they are not effective until OMB has approved them. Form 2c is published at the end of Part 125.] PART 122 - NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM Subpart A - Definitions and General Program Requirements Sec. 122.1 Purpose and Scope. 122.2 Definitions. 122.3 Exclusions. 122.4 Prohibitions (applicable to State NPDES Programs. see $123.25). 1.2.5 Effect of a permit. 122.6 Continuation of expiring permits. 122.7 Confidentiality of information. Subport B-Permit Application and Special NPDES Program Requirements 122.21 Application for a permit (applicable to State programs, see i 123.25). 122.22 Signatories to permit applications and reports (applicable to State programs. see $ 123.25). 122.23 Concentrated animal feeding oper ations (applicable to State NPDES prograins, are # 123.25 122 24 Concentrated aquatic animal pro duction facilities (applicable to State NPDES programs. see I 123.25). .22.25 Aquaculture projects (applicable to State NPDES programs, see t 123 23). 122.26 Separate storn: sewers (applicable to State NPDES programs, see 1 123.25: 122.27 Stivicultural activities (applicable " State NPDES programs. ser I 123.25 122.28 General permits (applicable to State NPDES programs. see 1 123.25). 122.29 New sources and new discharges. Subport C-Pormit Conditions 122.41 Conditions applicable to all permits (applicable to State programs, see $123.25). 122.42 Additional conditions applicable to specified categories of NPDES permits (applicable to State NPDES programs. see $ 123.25). 122.43 Establishing permit conditions (ap. plicable to State programs. see 1 123.25) 122.44 Establishing limitations, standards and other permit conditions (applicable to State NPDES programs, are 1 123.25). 122.45 Calculating NPDES permit conditions (applicable to State NPDES programs, see I 123.25). 122.46 Duration of permits (applicable to State programs, see 1 123.25). 12.47 Schedules of compliance. 122.48 Requirements for recording and porting of monitoring results (applicable to State programs. see I 123.25). 122 10 Considerations under Federal law 122.50 Disposal of pollutants into wells into publicly owned treatment works or by land application (applicable to State NPDES programs. see I 123.25). Support D--Transfer, Medification, Revecation and Releauence, and Termination of Permits 122.61 Transfer of permits (applicable to State programs. see I 123.25). 122.62 Modification or revocation and reis. suance of permits (applicable to State programs. see 1 123.25). 122.63 Minor modifications of permits. 122.64 Termination of permits (applicable to State programs. see I 123.25). APPENDIX A-NPDES PRIMARY INDUSTRY CATEGORIES APPENDIX B-CRITERIA FOR DETERMINING A CONCENTRATED ANIMAL FEEDING OPER. ATION « 122.23) APPENDIX C-CRITERIA FOR DETERMINING A CONCENTRATED AQUATIC ANIMAL PRODUC- TION FACILITY (122.24) APPENDIX D-NPDES PERMIT APPLICATION TESTING REQUIREMENTS (122.21) AUTHORITY: The Clean Water Act. 33 U.S.C 1251 et seq Published by THE BUREAU OF NATIONAL AFFAIRS. INC., Washington. D.C. 20037 131:1002 Subport A-Definitions and General Program Requirements # 122 1 Purpose and scope. (a) Conerage. (1) These regulations contain provisions for the National Pollutant Discharge Elimination System (NPDES) Program under sections 318, 402, and 405(a) of the Clean Water Act (CWA) (Pub. L. 92-500. as amended by Pub. L 95-217. Pub. L 95- 576. Pub. L. 96-483, and Pub L. 97- 117: 33 U.S.C. 1251 et seq.). (2) These regulations cover basic EPA permitting requirements (Part 122). what a State must do to obtain approval to operate its program in lieu of a Federal program and minimum requirements for administering the approved State program (Part 123), and procedures for EPA processing of permit applications and appeals (Part 124). Part 124 is also applicable to other EPA permitting programs. as detailed in that Part (b) Scope of the NPDES permit requirement. (1) The NPDES program requires permits for the discharge of "pollutants" from any "point source" into "waters of the United States." The terms "pollutant". "point source" and "waters of the United States" are defined in § 122.2. (2) The following are point sources requiring NPDES permits for discharges: (i) Concentrated animal feeding operations as defined in $ 122.23; (ii) Concentrated aquatic animal production facilities as defined in 1 122.24; (iii) Discharges into aquaculture projects as set forth in § 122.25; (iv) Discharges from separate storm sewers as set forth in 1 122.26; and (v) Silvicultural point sources as defined in 1 122.27. (c) State programs. Certain require. ments set forth in Parts 122 and 124 are made applicable to approved State programs by reference in Part 123. These references are set forth in 1 123.25. If a section or paragraph of Parts 122 or 124 18 applicable to States, through reference in 4 123.25, that fact is signaled by the following words at the end of the section or paragraph heading: (applicable to State programs, see $ 123.25). If these words are absent, the section (or paragraph) applies only to EPA administered permits. (d) Relation to other requirements. (1) Permit application forms. Appli. cants for EPA issued permits must submit their applications on EPA permit application forms when availa ble. Most of the information requested on these application forms is required by these regulations. The basic infor mation required in the general form (Form 1) and the additional information required for NPDES applications (Forms 2a-d) are listed in § 122.21. Applicants for State issued permits must use State forms which must require at a minimum the information listed in these sections. (2) Technical regulations. The NPDES permit program has separate additional regulations that contain technical requirements. These sepa rate regulations are used by permit IS suing authorities to determine what requirements must be placed in permits if they are issued. These separate regulations are located at 40 CFR Parts 125, 129, 133, 136 and 40 CFR Subchapter N (Parts 400-460). (e) Public participation. This rule establishes the requirements for public participation in EPA and State permit issuance and enforcement and related variance proceedings. and in the approval of State NPDES programs. These requirements carry out the purposes of the public participation requirements of 40 CFR Part 25 (Public Participation), and supersede the requirements of that Part as they apply to actions covered under Parts 122. 123, and 124. (f) State authorities. Nothing In Parts 122, 123, or 124 precludes more stringent State regulation of any activity covered by these regulations. whether or not under an approved State program. (g) Authority. (1) Section 301(a) of CWA provides that "Except as in compliance with this section and sections 302, 306, 307, 318, 402, and 404 of this Act, the discharge of any pollutant by any person shall be unlawful." (2) Section 402(a)(1) of CWA provides in part that "The Administrator may, after opportunity for public hearing. issue a permit for the discharge of any pollutant, or combination of pollutants, upon condition that such discharge will meet either all applicable requirements under sections 301, 302, 306, 307, 308. and 403 of this Act. or prior to the taking of necessary implementing actions relating to all such requirements, such conditions as the Administrator determines are necessary to carry out the provisions of this Act." (3) Section 318(a) of CWA provides that "The Administrator is authorized, after public hearings, to permit the discharge of a specific pollutant or pollutants under controlled conditions associated with an approved aquaculture project under Federal or State supervision pursuant to section 402 of this Act." (4) Section 405 of CWA provides, in part, that "Where the disposal of sewage sludge resulting from the operation of a treatment works as defined in section 212 of this Act (including the removal of in-place sewage sludge from one location and its deposit at another location) would result in any pollutant from such sewage sludge entering the navigable waters, such disposal is prohibited except in accordance with a permit issued by the Administrator under section 402 of this Act." (5) Sections 402(b), 318 (b) and (c), and 405(c) of CWA authorize EPA approval of State permit programs for discharges from point sources, discharges to aquaculture projects, and disposal of sewage sludge. (6) Section 304(i) of CWA provides that the Administrator shall promulgate guidelines establishing uniform application forms and other minimum requirements for the acquisition of information from dischargers in approved States and establishing minimum procedural and other elements of approved State NPDES programs. (7) Section 501(a) of CWA provides that "The Administrator is authorized to prescribe such regulations as are necessary to carry out his functions under this Act." (8) Section 101(e) of CWA provides that "Public participation in the development, revision, and enforcement of any regulation, standard, effluent lim- Itation. plan, or program established by the Administrator or any State under this Act shall be provided for, encouraged, and assisted by the Administrator and the States. The Administrator. in cooperation with the States, shall develop and publish regulations specifying minimum guidelines for public participation in such processes." $122.2 Definitions The following definitions apply to Parts 122, 123, and 124. Terms not defined in this section have the meaning given by CWA. When a defined term appears in a definition. the defined term is sometimes placed in quotation marks as an aid to readers. (Sec. 122.2) S-734 131:1003 Administrator means the Administrator of the United States Environmental Protection Agency, or an authorized representative. Applicable standards and limitations means all State, interstate, and Federal standards and limitations to which a "discharge" or a related activity is subject under the CWA, including "effluent limitations," water quality standards, standards of performance, toxic effluent standards or prohibitions, "best management practices," and pretreatment standards under sections 301, 302, 303, 304, 306, 307, 308, 403, and 405 of CWA. Application means the EPA standard national forms for applying for a permit, including any additions, revisions or modifications to the forms; or forms approved by EPA for use in "approved States," including any approved modifications or revisions. Approved program or approved State means a State or interstate program which has been approved or authorized by EPA under Part 123. Average monthly discharge limitation means the highest allowable average of "daily discharges" over a calendar month. calculated as the sum of all "daily discharges" measured during a calendar month divided by the number of "daily discharges" measured during that month. Average weekly discharge limitation means the highest allowable average of "daily discharges" over a calendar week, calculated as the sum of all "daily discharges" measured during a calendar week divided by the number of "daily discharges" measured during that week. Best management practices ("BMPs") means schedules of activities, prohibitions of practices. maintenance procedures, and other management practices to prevent or reduce the pollution of "waters of the United States." BMPs also include treatment requirements, operating procedures, and practices to control plant site runoff, spillage or leaks, sludge or waste disposal, or drainage from raw material storage. BMPs means "best management practices." Contiguous zone means the entire zone established by the United States under Article 24 of the Convention on the Territorial Sea and the Contiguous Zone. Continuous discharge means a "discharge" which occurs without interruption throughout the operating hours of the facility, except for infrequent shutdowns for maintenance, process changes, or other similar activities. CWA means the Clean Water Act (formerly referred to as the Federal Water Pollution Control Act or Federal Water Pollution Control Act Amendments of 1972) Pub. L. 92-500, as amended by Pub. L. 95-217, Pub. L. 95-576, Pub. L. 96-483 and Pub. L. 97- 117, 33 U.S.C. 1251 et seq. CWA and regulations means the Clean Water Act (CWA) and applicable regulations promulgated thereunder. In the case of an approved State program, it includes State program requirements. Daily discharge means the "discharge of a pollutant" measured during a calendar day or any 24-hour period that reasonably represents the calendar day for purposes of sampling. For pollutants with limitations expressed in units of mass, the "daily discharge" is calculated as the total mass of the pollutant discharged over the day. For pollutants with limitations expressed in other units of measurement, the "daily discharge" is calculated as the average measurement of the pollutant over the day. Direct discharge means the "discharge of a pollutant." Director means the Regional Administrator or the State Director, as the context requires, or an authorized representative. When there is no "approved State program," and there is an EPA administered program. "Director" means the Regional Administrator. When there is an approved State program, "Director" normally means the State Director. In some circumstances, however, EPA retains the authority to take certain actions even when there is an approved State program. (For example, when EPA has issued an NPDES permit prior to the approval of a State program, EPA may retain jurisdiction over that permit after program approval, see § 123.1.) In such cases, the term "Director" means the Regional Administrator and not the State Director. Discharge when used without qualification means the "discharge of a pollutant." Discharge of a pollutant means: (a) Any addition of any "pollutant" or combination of pollutants to "waters of the United States" from any "point source," or (b) Any addition of any pollutant or combination of pollutants to the waters of the "contiguous zone" or the ocean from any point source other than a vessel or other floating craft which is being used as a means of transportation. This definition includes additions of pollutants into waters of the United States from: surface runoff which is collected or channelled by man; discharges through pipes, sewers, or other conveyances owned by a State, municipality, or other person which do not lead to a treatment works: and discharges through pipes, sewers, or other conveyances, leading into privately owned treatment works. This term does not include an addition of pollutants by any "indirect discharg. er." Discharge Monitoring Report ("DMR") means the EPA uniform national form, including any subsequent additions, revisions, or modifications for the reporting of self-monitoring results by permittees. DMRs must be used by "approved States" as well as by EPA. EPA will supply DMRs to any approved State upon request. The EPA national forms may be modified to substitute the State Agency name, address, logo, and other similar information, as appropriate, in place of EPA's. DMR means "Discharge Monitoring Report." Draft permit means a document prepared under $ 124.6 indicating the Director's tentative decision to issue or deny, modify, revoke and reissue, terminate, or reissue a "permit." A notice of intent to terminate a permit, and a notice of intent to deny a permit, as discussed in $ 124.5, are types of "draft permits." A denial of a request for modification, revocation and reissuance, or termination, as discussed in § 124.5, is not a "draft permit." A "proposed permit" is not a "draft permit." Effluent limitation means any restriction imposed by the Director on quantities, discharge rates. and concentrations of "pollutants" which are "discharged" from "point sources" into "waters of the United States," the waters of the "contiguous zone," or the ocean. 131:1004 Effluent limitotions guidelines means a regulation published by the Administrator under section 304(b) of CWA to adopt or revise "effluent limitations." Environmental Protection Agency ("EPA") means the United States Environmental Protection Agency. EPA means the United States "Environmental Protection Agency." Facility or activity means any NPDES "point source" or any other facility or activity (including land or appurtenances thereto) that is subject to regulation under the NPDES program. Generol permit means an NPDES "permit" issued under § 122.28 authorizing a category of discharges under the CWA within a geographical area. Hazardous substance means any substance designated under 40 CFR Part 116 pursuant to section 311 of CWA. Indirect discharger means a nondomestic discharger introducing "pollutants" to a "publicly owned treatment works." Interstate agency means an agency of two or more States established by or under an agreement or compact approved by the Congress, or any other agency of two or more States having substantial powers or duties pertaining to the control of pollution 88 determined and approved by the Administrator under the CWA and regulations. Major facility means any NPDES "facility or activity" classified as such by the Regional Administrator, or, in the case of "approved State programs," the Regional Administrator in conjunction with the State Director. Maximum daily discharge limitation means the highest allowable "daily discharge." Municipality means a city, town. borough. county, parish. district, association, or other public body created by or under State law and having jurisdiction over disposal of sewage, industrial wastes, or other wastes, or an Indian tribe or an authorized Indian tribal organization, or a designated and approved managment agency under section 208 of CWA. National Pollutant Discharge Elimination System (NPDES) means the national program for issuing, modifying. revoking and reissuing. terminating, monitoring and enforcing permits. and imposing and enforcing pretrestment requirements, under sections 307, 402. 318. and 405 of CWA. The term includes an "approved program." "New discharger" means any building structure. facility, or installation: (a) From which there is or may be a "discharge of pollutants:" (b) That did not commence the "discharge of pollutants" at a particular "site" prior to August 13, 1979; (c) Which is not a "new source:" and (d) Which has never received 8 finally effective NDPES permit for discharges at that "site." This definition includes an "indirect discharger" which commences discharging into "waters of the United States" after August 13. 1979. It also includes any existing mobile point source (other than an offshore or coastal oil and gas exploratory drilling rig or a coastal oil and gas developmental drilling rig) such as 8 seafood processing rig, seafood processing vessel, or aggregate plant, that begins discharging at a "site" for which it does not have a permit; and any offshore or coastal mobile oil and gas exploratory drilling rig or coastal mobile oil and gas developmental drilling rig that commences the discharge of pollutants efter August 13. 1979, at 8 "site" under EPA's permitting jurisdiction for which it is not covered by an individual or general permit and which is located in an area determined by the Regional Administrator in the issuance of a final permit to be an area or biological concern. In determining whether an area is an area of biological concern, the Regional Administrator shall consider the factors specified in 40 CFR 125.122(a) (1) through (10). An offshore or coastal mobile exploratory drilling rig or coastal mobile developmental drilling rig will be considered a "new discharger" only for the duration of its discharge in an area of biological concern. ["New discharger" revised by 48 FR 39619, September 1, 1983] New source means any building. structure, facility. or installation from which there is or may be a "discharge of pollutants." the construction of which commenced: (a) After promulgation of standards of performance under section 306 of CWA which are applicable to such source, or (b) After proposal of standards of performance in accordance with section 306 of CWA which are applicable to such source. but only if the standards are promulgated in accordance with section 306 within 120 days of their proposal. NPDES means "National Pollutant Discharge Elimination System." Owner or operator means the owner or operator of any "facility or activity" subject to regulation under the NPDES program. Permit means an authorization. license, or equivalent control document issued by EPA or an "approved State" to implement the requirements of this Part and Parts 123 and 124. "Permit" includes an NPDES "general permit" 18 122.28). Permit does not include any permit which has not yet been the subject of final agency action, such as a "draft permit" or a "proposed permit." Person means an individual, association. partnership. corporation, municipality. State or Federal agency, or an agent 01 employee thereof. Point source means any discernible. confined. and discrete conveyance, including but not limited 10 any pipe. ditch. channel, tunnel. concert. well. discrete fissure, container, rolling stock, concentrated animal feeding operation vessel. or other floating craft from which pollutants are or may be discharged. This term does not include return flows from irrigated agriculture. ["Point source" corrected by 50 FR 6940, February 19. 1985] Pollutant means dredged spoil, solidwaste, Incinerator residue. filter backwash. sewage. garbage. sewage sludge, munitions, chemical wastes. biological materials, radioactive materials (except those regulated under the Atomic Energy Act of 1954, as amended (42 U.S.C. 2011 et seq.)), heal, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water. It does not mean: (a) Sewage from vessels; or (b) Water. gas, or other material which is injected into a well to facilitate production of oil or gas, or water derived in association with oil and gas production and disposed of in a well, if the well used either to facilitate production or for disposal purposes is approved by authority of the State in which the well is located. and if the State determines that the injection or disposal will not result in the degradation of ground or surface water resources. 131:1005 [Note.-Radioactive materials covered by the Atomic Energy Act are those encompassed in its definition of source, byproduct, or special nuclear materials. Examples of materials not covered include radium and accelerator-produced isotopes. See Train V. Colorado Public Interest Research Group. Inc., 426 U.S. 1 (1976).] POTW means "publicly owned treatment works." Primary industry category means any industry category listed in the NRDC settlement agreement (Natural Resources Defense Council et al. V. Train, 8 E.R.C. 2120 (D.D.C. 1976), modified 12 E.R.C. 1833 (D.D.C. 1979)); also listed in Appendix A of Part 122. Privately owned treatment works means any device or system which is (a) used to treat wastes from any facility whose operator is not the operator of the treatment works and (b) not a "POTW." Process wastewater means any water which. during manufacturing or processing. comes into direct contact with or results from the production or use of any raw material. intermediate product, finished product, byproduct. or waste product. Proposed permit means a State NPDES "permit" prepared after the close of the public comment period (and, when applicable, any public hearing and administrative appeals) which is sent to EPA for review before final issuance by the State. A "proposed permit" 15 not a "draft permit." Publicly owned treatment works ("POTW") means any device or system used in the treatment (including recycling and reclamation) of municipal sewage or industrial wastes of a liquid nature which is owned by a "State" or "municipality." This definition includes sewers, pipes. or other conveyances only if they convey wastewater to a POTW providing treatment. Recommencing discharger means a source which recommences discharge after terminating operations. Regional Administrator means the Regional Administrator of the appropriate Regional Office of the Environmental Protection Agency or the authorized representative of the Regional Administrator. Schedule of compliance means a schedule of remedial measures included in a "permit", including an enforceable sequence of interim requirements (for example, actions, operations, or milestone events) leading to compliance with the CWA and regulations. Secondary industry category means any industry category which is not a "primary industry category." Secretary means the Secretary of the Army, acting through the Chief of Engineers. Sewage from vessels means human body wastes and the wastes from toilets and other receptacles intended to receive or retain body wastes that are discharged from vessels and regulated under section 312 of CWA, except that with respect to commercial vessels on the Great Lakes this term includes graywater. For the purposes of this definition. "graywater" means galley, bath. and shower water. Sewage sludge means the solids, residues. and precipitate separated from or created in sewage by the unit processes of a "publicly owned treatment works." "Sewage" as used in this definition means any wastes, including westes from humans, households, commercial establishments, industries, and storm water runoff, that are discharged to or otherwise enter a publicly owned treatment works. Site means the land or water area where any "facility or activity" is physically located or conducted, including adjacent land used in connection with the facility or activity. State means any of the 50 States, the District of Columbia, Guam, the Commonwealth of Puerto Rico, the Virgin Islands, American Samoa, and the Trust Territory of the Pacific Islands. State Director means the chief administrative officer of any State or interstate agency operating an "approved program," or the delegated representative of the State Director. If responsibility is divided among two or more State or interstate agencies, "State Director" means the chief administrative officer of the State or interstate agency authorized to perform the particular procedure or function to which reference is made. State/EPA Agreement means an agreement between the Regional Administrator and the State which coordinates EPA and State activities, responsibilities and programs including those under the CWA programs. Total dissolved solids means the total dissolved (filterable) solids as determined by use of the method specified in 40 CFR Part 136. Toxic pollutant means any pollutant listed as toxic under section 307(a)(1) of CWA. Variance means any mechanism or provision under sections 301 or 316 of CWA or under 40 CFR Part 125, or in the applicable "effluent limitations guidelines" which allows modification to or waiver of the generally applicable effluent limitation requirements or time deadlines of CWA. This includes provisions which allow the establishment of alternative limitations based on fundamentally different factors or on sections 301(c), 301(g). 301(h), 301(i), or 316(a) of CWA. Waters of the United States or waters of the U.S. means: (a) All waters which are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide; (b) All interstate waters, including interstate "wetlands;" (c) All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, "wetlands," sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds the use, degradation, or destruction of which would affect or could affect interstate or foreign commerce including any such waters: (1) Which are or could be used by interstate or foreign travelers for recreational or other purposes: (2) From which fish or shellfish are or could be taken and sold in interstate or foreign commerce; or (3) Which are used or could be used for industrial purposes by industries in interstate commerce; (d) All impoundments of waters otherwise defined as waters of the United States under this definition; (e) Tributaries of waters identified in paragraphs (a)-(d) of this definition; (f) The territorial sea; and Published by THE BUREAU OF NATIONAL AFFAIRS INC., Washington, D.C. 20037 131:1006 (g) "Wetlands" adjacent to waters (other than waters that are themselves wetlands)-identified in paragraphs (a)- (f) of this definition. Waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of CWA (other than cooling ponds as defined in 40 CFR § 423.11(m) which also meet the criteria of this definition) are not waters of the United States. This exclusion applies only to manmade bodies of water which neither were originally created in waters of the United States (such as disposal area in wetlands) nor resulted from the impoundment of waters of the United States. [See Note 1 of this section.] Wetlands means those areas that are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support. and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas. [Note 1.-At 45 FR 48620, July 21, 1980, the Environmental Protection Agency suspended until further notice in § 122.2, the last sentence, beginning "This exclusion applies" in the definition of "Waters of the United States." This revision continues that suspension.) [Note I corrected by 50 FR 6940, February 19, 1985) [Note 2. - [Deleted]] [Note 2 deleted by 50 FR 6940, February 19. 1985] $ 122.3 Exclusions. The following discharges do not require NPDES permits: (a) Any discharge of sewage from vessels. effluent from properly functioning marine engines, laundry, shower. and galley sink wastes, or any other discharge incidental to the normal operation of a vessel. This exclusion does not apply to rubbish, trash, garbage, or other such materials discharged overboard; nor to other discharges when the vessel is operating in a capacity other than as a means of transportation such as when used as an energy or mining facility. a storage facility or a seafood processing facility, or when secured to a storage facility or a seafood processing facility, or when secured to the bed of the ocean, contiguous zone or waters of the United States for the purpose of mineral or oil exploration or development. (b) Discharges of dredged or fill material into waters of the United States which are regulated under section 404 of CWA. (c) The introduction of sewage, industrial wastes or other pollutants into publicly owned treatment works by indirect dischargers. Plans or agreements to switch to this method of disposal in the future do not relieve dischargers of the obligation to have and comply with permits until all discharges of pollutants to waters of the United States are eliminated. (See also $ 122.47(b)). This exclusion does not apply to the introduction of pollutants to privately owned treatment works or to other discharges through pipes, sewers, or other conveyances owned by a State, municipality. or other party not leading to treatment works. (d) Any discharge in compliance with the instructions of an On-Scene Coordinator pursuant to 40 CFR Part 1510 (The National Oil and Hazardous Substances Pollution Plan) or 33 CFR 153.10(e) (Pollution by Oil and Hazardous Substances). (e) Any introduction of pollutants from non point-source agricultural and silvicultural activities, including runoff from orchards, cultivated crops, pastures, range lands, and forest lands, but not discharges from concentrated animal feeding operations as defined in I 122.23, discharges from concentrated aquatic animal production facilities as defined in $ 122.24, discharges to aquaculture projects as defined in $ 122.25, and discharges from silvicultural point sources as defined in $ 122.27. (f) Return flows from irrigated agriculture. (g) Discharges into a privately owned treatment works, except as the Director may otherwise require under $ 122.44(m). $ 122.4 Prohibitions (applicable to State NPDES programs, see § 123.25). No permit may be issued: (a) When the conditions of the permit do not provide for compliance with the applicable requirements of CWA. or regulations promulgated under CWA; (b) When the applicant is required to obtain a State or other appropriate certification under section 401 of CWA and $ 124.53 and that certification has not been obtained or waived: (c) By the State Director where the Regional Administrator has objected to issuance of the permit under $ 123.44; (d) When the imposition of conditions cannot ensure compliance with the applicable water quality requirements of all affected States; (e) When, in the judgment of the Secretary, anchorage and navigation in or on any of the waters of the United States would be substantially impaired by the discharge; (f) For the discharge of any radiological. chemical, or biological warfare agent or high-level radioactive waste; (g) For any discharge inconsistent with a plan or plan amendment approved under section 208(b) of CWA; (h) For any discharge to the territorial sea, the waters of the contiguous zone. or the oceans in the following circumstances: (1) Before the promulgation of guidelines under section 403(c) of CWA (for determining degradation of the waters of the territorial seas, the contiguous zone, and the oceans) unless the Director determines permit issuance to be in the public interest; or (2) After promulgation of guidelines under section (403(c) of CWA, when insufficient information exists to make a reasonable judgment whether the discharge complies with them. (i) To a new source or a new discharger. if the discharge from its construction or operation will cause or contribute to the violation of water quality standards. The owner or operator of a new source or new discharger proposing to discharge into a water segment which does not meet applicable water quality standards or is not expected to meet those standards even after the application of the effluent limitations required by section [Sec. 122.4(i)] S-750 131:1007 301(b)(1)(A) and 301(b)(1)(B) of CWA, and for which the State or interstate agency has performed a pollutants load allocation for the pollutant to be discharged, must demonstrate, before the close of the public comment period, that: (1) There are sufficient remaining pollutant load allocations to allow for the discharge; and [122.4(i) and (i)(1) corrected by 50 FR 6940, February 19, 1985] (2) The existing dischargers into that segment are subject to compliance schedules designed to bring the segment into compliance with applicable water quality standards. $ 122.5 Effect of a permit. (a) Applicable to State programs, see § 123.25. Except for any toxic effluent standards and prohibitions imposed under section 307 of the CWA, compliance with a permit during its term constitutes compliance, for purposes of enforcement, with section 301, 302, 306, 307, 318, 403, and 405 of CWA. However, a permit may be modified, revoked and reissued, or terminated during its term for cause as set forth in $1 122.62 and 122.64. (b) Applicable to State programs, See § 123.25. The issuance of a permit does not convey any property rights of any sort, or any exclusive privilege. (c) The issuance of a permit does not authorize any injury to persons or property or invasion of other private rights, or any infringement of State or local law or regulations. $ 122.5. Continuation of expiring permits. (a) EPA permits. When EPA is the permit-issuing authority, the conditions of an expired permit continue in force under 5 U.S.C. 558(c) until the effective date of a new permit (see $ 124.15) if: (1) The permittee has submitted a timely application under $ 122.21 which is a complete (under $ 122.21(e)) application for a new permit; and (2) The Regional Administrator, through no fault of the permittee does not issue a new permit with an effective date under $ 124.15 on or before the expiration date of the previous permit (for example, when issuance is impracticable due to time or resource constraints). (b) Effect. Permits continued under this section remain fully effective and enforceable. [122.6(b) corrected by 50 FR 6940, February 19, 1985] (c) Enforcement. When the permittee is not in compliance with the conditions of the expiring or expired permit the Regional Administrator may choose to do any or all of the following: (1) Initiate enforcement action based upon the permit which has been continued; (2) Issue a notice of intent to deny the new permit under $ 124.6. If the permit is denied, the owner or oprator would then be required to cease the activities authorized by the continued permit or be subject to enforcement action for operating without a permit; (3) Issue a new permit under Part 124 with appropriate conditions; or (4) Take other actions authorized by these regulations. (d) State continuation. (1) An EPAissued permit does not continue in force beyond its expiration date under Federal law if at that time a State is the permitting authority. States authorized to administer the NPDES program may continue either EPA or State-issued permits until the effective date of the new permits. if State law allows. Otherwise, the facility or activity is operating without a permit from the time of expiration of the old permit to the effective date of the State-issued new permit. $ 122.7 Confidentiality of information. (a) In accordance with 40-CFR Part 2, any information submitted to EPA pursuant to these regulations may be claimed as confidential by the submitter. Any such claim must be asserted at the time of submission in the manner prescribed on the application form or instructions or, in the case of other submissions, by stamping the words "confidential business information" on each page containing such information. If no claim is made at the time of submission, EPA may make the information available to the public without further notice. If a claim is asserted, the information will be treated in accordance with the procedures in 40 CFR Part 2 (Public Information). (b) Applicable to State programs, see § 123.25. Claims of confidentiality for the following information will be denied: (1) The name and address of any permit applicant or permittee; (2) Permit applications, permits, and effluent data. (c) Applicable to State programs, see § 123.25. Information required by NPDES application forms provided by the Director under $ 122.21 may not be claimed confidential. This includes information submitted on the forms themselves and any attachments used to supply Information required by the forms. Subpart B-Permit Application and Special NPDES Program Requirements $ 122.21 Application for a permit (applicable to State programs, see $ 123.25). (a) Duty to apply. Any person who discharges or proposes to discharge pollutants and who does not have an effective permit, except persons covered by general permits under $ 122.28, excluded under I 122.3, or a user of a privately owned treatment works unless the Director requires otherwise under $ 122.44(m). shall submit a complete application (which shall include a BMP program if necessary under 40 CFR 125.102) to the Director in accordance with this section and Part 124. (b) Who applies? When a facility or activity is owned by one person but is operated by another person, it is the operator's duty to obtain a permit. (c)(1) Time to apply. Any person proposing a new discharge shall submit an application at least 180 days before the date on which the discharge is to commence, unless permission for a later date has been granted by the Director. Persons proposing a new discharge are encouraged to submit their applications well in advance of the 180 day requirement to avoid delay. See also paragraph (k) of this section. [122.21(c)(1) designated by 49 FR 38046, September 26, 1984] (2) Any existing Group I storm water discharge (as defined in $122.26(b)(2)) that does not have an effective permit shall submit an application by December 31, 1987. Any existing Group II storm water discharge (as defined in $122.26(b)(3)) that does not have an effective permit shall submit an application by June 30, 1989. Any discharger designated under $122.26(c) shall submit an application within 6 months of notification of its designation. [122.21(c)(2) added by 49 FR 38046, September 26, 1984; corrected by 50 FR (Sec. 122.21(c)(2)] 9-27-85 131:1008 6940, February 19, 1985; revised by 50 FR 35203, August 29, 1985] (d) Duty to reapply. (1) Any POTW with a currently effective permit shall submit a new application at least 180 days before the expiration date of the existing permit, unless permission for a later date has been granted by the Director. (The Director shall not grant permission for applications to be submitted later than the expiration date of the existing permit.) [Editor's note: EPA February 19, 1985, (50 FR 6940) corrected 122.21(d)(2) as it appeared at 48 FR 14146, April 1, 1983. However, that entire subparagraph was revised August 8, 1984 (49 FR 31842) and the 1983 text no longer exists.) (2) All other permittees with currently effective permits shall submit a new application 180 days before the existing permit expires, except that: (i) The Regional Administrator may grant permission to submit an application later than the deadline for submission otherwise applicable, but no later than the permit expiration date; and (ii) The Regional Administrator may grant permission to submit the information required by paragraphs (g)(7), (9), and (10) of this section after the permit expiration date. [122.21(d)(2) revised by 49 FR 31842, August 8, 1984] (3) All applicants for EPA issued permits, other than POTWs and new sources, must complete Forms 1 and either 2b or 2c of the consolidated permit application forms to apply under section 122.21 and paragraphs (f), (g). and (h) of this section. [122.21(d)(3) added by 49 FR 31842, August 8, 1984] (e) Completeness. The Director shall not issue a permit before receiving a complete application for a permit except for NPDES general permits. An application for a permit is complete when the Director receives an application form and any supplemental information which are completed to his or her satisfaction. The completeness of any application for a permit shall be judged independently of the status of any other permit application or permit for the same facility or activity. For EPA administered NPDES programs, an application which is reviewed under $ 124.3 is complete when the Director receives either a complete application or the information listed in a notice of deficiency. (f) Information requirements. All applicants for NPDES permits shall provide the following information to the Director, using the application form provided by the Director (additional information required of applicants is set forth in paragraphs (g)-(k)) of this section. (1) The activities conducted by the applicant which require It to obtain an NPDES permit. (2) Name, mailing address, and location of the facility for which the application is submitted. (3) Up to four SIC codes which best reflect the principal products or services provided by the facility. (4) The operator's name, address, telephone number, ownership status, and status as Federal, State, private, public, or other entity. (5) Whether the facility is located on Indian lands. (6) A listing of all permits or construction approvals received or applied for under any of the following programs: (i) Hazardous Waste Management program under RCRA. (ii) UIC program under SDWA. (iii) NPDES program under CWA. (iv) Prevention of Significant Deterioration (PSD) program under the Clean Air Act. (v) Nonattainment program under the Clean Air Act. (vi) National Emission Standards for Hazardous Pollutants (NESHAPS) preconstruction approval under the Clean Air Act. (vii) Ocean dumping permits under the Marine Protection Research and Sanctuaries Act. (viii) Dredge or fill permits under section 404 of CWA. (ix) Other relevant environmental permits, including State permits. (7) A topographic map (or other map if a topographic map is unavailable) extending one mile beyond the property boundaries of the source, depicting the facility and each of its intake and discharge structures; each of its hazardous waste treatment, storage, or disposal facilities; each well where fluids from the facility are injected underground; and those wells, springs, other surface water bodies, and drinking water wells listed in public records or otherwise known to the applicant in the map area, Group II storm water discharges, as defined in § 122.26(b)(3), are exempt from the requirements of paragraph (f)(7) of this section. [122.21(f)(7) amended by 49 FR 38046, September 26, 1984] (8) A brief description of the nature of the business. (9) For Group II storm water dischargers (as defined in § 122.26(b)(3)) only. a brief narrative description of: (i) The drainage area, including an estimate of the size and nature of the area; (ii) The receiving water; and (iii) Any treatment applied to the discharge. [122.21(f)(9) added by 49 FR 38046, September 26, 1984] (g) Application requirements for existing manufacturing, commercial, mining, and silvicultural dischargers. Existing manufacturing, commercial, mining, and silvicultural dischargers applying for NPDES permits shall provide the following information to the Director, using application forms provided by the Director: (1) Outfall location. The latitude and longitude to the nearest 15 seconds and the name of the receiving water. (2) Line Drawing. A line drawing of the water flow through the facility with a water balance, showing operations contributing wastewater to the effluent and treatment units. Similar processes, operations, or production areas may be indicated as a single unit, labeled to correspond to the more detailed identification under paragraph (g)(3) of this section. The water balance must show approximate average flows at intake and discharge points and between units, including treatment units. If a water balance cannot be determined (for example, for certain mining activities), the applicant may provide instead a pictorial description of the nature and amount of any sources of water and any collection and treatment measures. (3) Average flows and treatment. A narrative identification of each type of process, operation, or production area which contributes wastewater to the effluent for each outfall, including process wastewater, cooling water, and stormwater runoff; the average flow which each process contributes; and a description of [Sec. 122.21(g)(3)] S-750 131:1009 the treatment the wastewater receives, including the ultimate disposal of any solid or fluid wastes other than by discharge. Processes, operations, or production areas may be described in general terms (for example, "dye-making reactor", "distillation tower." For a privately owned treatment works, this information shall include the identity of each user of the treatment works. (4) Intermittent flows. If any of the discharges described in paragraph (g)(3) of this section are intermittent or seasonal, a description of the frequency, duration and flow rate of each discharge occurrence (except for stormwater runoff. spillage or leaks). [122.21(g)(3) corrected by 50 FR 6940, February 19, 1985] (5) Maximum production. If an effluent guideline promulgated under section 304 of CWA applies to the applicant and is expressed in terms of production (or other measure of operation), a reasonable measure of the applicant's actual production reported in the units used in the applicable effluent guideline. The reported measure must reflect the actual production of the facility as required by § 122.45(b)(2). (6) Improvements. If the applicant is subject to any present requirements or compliance schedules for construction, upgrading or operation of waste treatment equipment, an identification of the abatement requirement, a description of the abatement project, and a listing of the required and projected final compliance dates. [122.21(g)(7) introductory text revised by 49 FR 38046, September 26, 1984] (7) Effluent characteristics. Information on the discharge of pollutants specified in this subparagraph. When "quantitative data" for a pollutant are required. the applicant must collect a sample of effluent and analyze it for the pollutant in accordance with analytical methods approved under 40 CFR Part 136. When no analytical method is approved the applicant may use any suitable method but must provide a description of the method. When an applicant has two or more outfalls with substantially identical effluents, the Director may allow the applicant to test only one outfall and report that the quantitative data also apply to the substantially identical outfalls. The requirements in paragraphs (g)(7) (iii) and (iv) of this section that an applicant must provide quantitative date for certain pollutants known or believed to be present de net apply to pollutants present in a discharge solely as the result of their presence in intake water: however, an applicant must report such pollutants an present. Grab samples must be used for pH. temperature. cyanide total phenols. residual chlorine. oil and grease, and fecal coliform. For all other pollutants. 24-hour composite samples myst be used. However. 8 minimum of one grab sample may be taken for effluents from holding ponds or other impoundments with a retention period greater than 24 hours, and a minimum of one to four (4) grab samples may be taken for storm water discharges depending on the duration of the discharge One grab sample shall be taken in the first hour (or less) of discharge with one additional grab sample taken in each succeeding hour of discharge up to a minimum of four grob samples for discharges lasting four of more hours. In addition, the Director may waive composite sampling for any outfall for which the applicant demonstrates that the use of an automatic sampler is infeasible and that the minimum of four (4) grab samples will be a representative sample of the effluent being discharged. An applicant is expected to "know or have reason to believe" that a pollutant is present in an effluent based on an evaluation of the expected use, production, or storage of the pollutant, or on any previous analyses for the pollutant. (For example. any pesticide manufactured by a facility may be expected to be present in contaminated storm water runoff from the facility.) (i)(A) Every applicant must report quantitative data for every outfall for the following pollutants: Biochemial Oxygen Demand (BODs) Chemical Oxygen Demand Total Organic Carbon Total Suspended Solids Ammonia (as N) Temperature (both winter and summer) pH (B) The Director may waive the reporting requirements for individual point sources or for a particular industry category for one or more of the pollutants listed in paragraph (g)(7)(i)(A) of this section if the emplicant has demonstrated that such a waiver is appropriate because information edequate to support issuance of a permit can be obtained with less stringent requirements. (122.21(g)(7)(i)(B) revised by 49 FR 38046, September 26, 1984] (ii) Each applicant with processes in one or more primary industry category (see Appendix A to Part 122) contributing to a discharge must report quantitative data for the following pollutants in each outfall containing process wastewater: (A) The organic toxic pollutants in the fractions designated in Table 1 of Appendix D of this Part for the applicant's industrial category or categories unless the applicant qualifies as a small business under paragraph (8)(8) of this section. Table II of Appendix D of this Part lists the organic toxic pollutants in each fraction. The fractions result from the sample preparation required by the analytical procedure which uses gas chromotography/mass spectrometry. A determination that an applicant falls within a particular industrial category for the purposes of selecting fractions for testing is not conclusive as to the applicant's inclusion in that category for any other purposes. [See Notes 2, 3, and 4 of this section.] [122.21(g)(7)(ii)(A) corrected by 50 FR 6940. February 19, 1985] (B) The pollutants listed in Table III of Appendix D of this Part (the-toxic metals, cyanide. and total phenols). [122.21(g)(7)(iii) revised by 49 FR 38046, September 26, 1984] (iii)(A) Each applicant must indicate whether it knows or has reason to believe that any of the pollutants in Table IV of Appendix D (certain conventional and nonconventional pollutants) is discharged from each outfall. If an applicable effluent limitations guideline either directly limits the pollutant or, by its express terms, indirectly limits the pollutant through limitations on an indicator, the applicant must report quantitative data. For every pollutant discharged which is not so limited in an effluent limitations guideline, the applicant must either report quantitative data or briefly describe the reasons the pollutant is expected to be discharged. [Sec. 122.21(g)(7)(iiii)] 9-27-85 131:1010 (B) Each applicant must indicate whether it knows or has reason to believe that any of the pollutants listed in Table II or Table III of Appendix D (the toxic pollutants and total phenols) for which quantitative data are not otherwise required under paragraph (g)(7)(ii) of this section, is discharged from each outfall. For every pollutant expected to be discharged in concentrations of 10 ppb or greater the applicant must report quantitative data. For acrolein, acrylonitrile. 2,4 dinitrophenol, and 2-methyl-4.6 dinitrophenol, where any of these four pollutants are expected to be discharged in concentrations of 100 ppb or greater the applicant must report quantitative data. For every pollutant expected to be discharged in concentrations less than 10 ppb, or in the case of acrolein. acrylonitrile. 2,4 dinitrophenol. and 2- methyl-4,6 dinitrophenol. in concentrations less than 100 ppb. the applicant must either submit quantitative data or briefly describe the reasons the pollutant is expected to be discharged. An applicant qualifying as a small business under paragraph (g)(8) of this section is not required to analyze for pollutants listed in Table II of Appendix D (the organic toxic pollutants). (iv) Each applicant must indicate whether it knows or has reason to believe that any of the pollutants in Table V of Appendix D of this Part (certain hazardous substances and asbestos) are discharged from each outfall. For every pollutant expected to be discharged, the applicant must briefly describe the reasons the pollutant is expected to be discharged, and report any quantitative data it has for any pollutant. [122.21(g)(7)(iv) corrected by 50 FR 6940, February 19, 1985] (v) Each applicant must report qualitative data, generated using a screening procedure not calibrated with analytical standards, for 2,3,7,8- tetrachlorodibenzo-p-dioxin (TCDD) if it: (A) Uses or manufactures 2,4,5- trichlorophenoxy acetic acid (2,4,5,-T): 2- (2.4,5-trichlorophenoxy) propanoic acid (Silvex, 2,4,5,-TP): 2-(2,4,5- trichlorophenoxy) ethyl, 2,2- dichloropropionate (Erbon); 0,0- dimethyl O-(2,4,5-trichlorophenyl) phosphorothioate (Ronnel): 2,4,5- trichiorophenol (TCP): or hexachlorophene (HCP): or (B) Knows or has reason to believe that TCDD is or may be present in an effluent. (8) Small business exemption. An applicant which qualifies as a small business under one of the following criteria is exempt from the requirements in paragraphs (g)(7)(ii)(A) or (g)(7)(iii)(A) of this section to submit quantitative data for the pollutants listed in Table II of Appendix D of this Part (the organic toxic pollutants): (i) For coal mines, a probable total annual production of less than 100,000 tons per year. (ii) For all other applicants, gross total annual sales averaging less than $100,000 per year (in second quarter 1980 dollars). (9) Used or manufactured toxics. A listing of any toxic pollutant which the applicant currently uses or manufactures as an intermediate or final product or byproduct. The Director may waive or modify this requirement for any applicant if the applicant demonstrates that it would be unduly burdensome to identify each toxic pollutant and the Director has adequate information to issue the permit. [122.21(g)(9) revised by 49 FR 38046, September 26, 1984] (10) Storm water point source exemption. (i) An applicant that qualifies as a Group II storm water discharger under $ 122.26(b)(3) is exempt from the requirements of paragraphs (f)(7) and (8) of this section. unless the Director requests such information. (ii) For the purpose of paragraph (g)(3) of this section, storm water point sources may estimate the average flow of their discharge and must indicate the rainfall event and the method of estimation that the estimate is based on. (iii) The Director may require additional information under paragraph (g)(13) of this section, and may request any Group II storm water dischargers to comply with paragraph (8) of this section. [122.21(g)(10) revised by 49 FR 38046, September 26, 1984] (11) Biological toxicity tests. An identification of any biological toxicity tests which the applicant knows or has reason to believe have been made within the last 3 years on any of the applicant's discharges or on a receiving water in relation to a discharge. (12) Contract analyses. If a contract laboratory or consulting firm performed any of the analyses required by paragraph (g)(7) of this section, the identity of each laboratory or firm and the analyses performed. (13) Additional information. In addition to the information reported on the application form, applicants shall provide to the Director, at his or her request, such other information as the Director may reasonably require to assess the discharges of the facility and to determine whether to issue an NPDES permit. The additional information may include additional quantitative data and bioassays to assess the relative toxicity of discharges to aquatic life and requirements to determine the cause of the toxicity. (h) Application requirements for new and existing concentrated animal feeding operations and aquatic animal production facilities. New and existing concentrated animal feeding operations (defined in $ 122.23) and concentrated aquatic animal production facilities (defined in $ 122.24) shall provide the following information to the Director, using the application form provided by the Director: (1) For concentrated animal feeding operations: (i) The type and number of animals in open confinement and housed under roof. (ii) The number of acres used for confinement feeding. (iii) The design basis for the runoff diversion and control system, if one exists, including the number of acres of contributing drainage, the storage capacity, and the design safety factor. (2) For concentrated aquatic animal production facilities: (i) The maximum daily and average monthly flow from each outfall. (ii) The number of ponds, raceways, and similar structures. (iii) The name of the receiving water and the source of intake water. (iv) For each species of aquatic animals, the total yearly and maximum harvestable weight. (v) The calendar month of maximum feeding and the total mass of food fed during that month. (i) Application requirements for new and existing POTWs. [Reserved.] (j) Application requirements for new sources and new dischargers. [Sec. 122.21(j)] S-734 131:1011 [Reserved.] (k) Special provisions for applications from new sources. (1) The owner or operator of any facility which may be a new source(as defined in $ 122.2) and which is located in a State without an approved NPDES program must comply with the provisions of this paragaraph. (2)(i) Before beginning any on-site construction as defined in $ 122.29, the owner or operator of any facility which may be 8 new source must submit information to the Regional Administrator so that he or she can determine if the facility is a new source. The Regional Administrator may request any additional information needed to determine whether the facility is a new source. (ii) The Regional Administrator shall make an initial determination whether the facility is a new source within 30 days of receiving all necessary information under paragraph (k)(2)(i) of this section. (3) The Regional Administrator shall issue 8 public notice in accordance with § 124.10 of the new source determination under paragraph (k)(2) of this section. If the Regional Administrator has determined that the facility is a new source, the notice shall state that the applicant must comply with the environmental review requirements of 40 CFR 6.600 et seq. (4) Any interested person may challenge the Regional Administrator's initial new source determination by requesting an evidentiary hearing under Subpart E of Part 124 within 30 days of issuance of the public notice of the initial determination. If all parties to the evidentiary hearing on the determination agree, the Regional Administrator may defer the hearing until after a final permit decision is made, and consolidate the hearing on the determination with any hearing on the permit. [122.21(k)(4) amended by 49 FR 38046, September 26, 1984] (1) Variance requests by non-POTWs. A discharger which is not a publicly owned treatment works (POTW) may request a variance from otherwise applicable effluent limitations under any of the following statutory or regulatory provisions within the times specified in this paragraph: (1) Fundamentally different factors. A request for a variance based on the presence of "fundamentally different factors" from those on which the effluent limitations guideline was based, shall be made by the close of the public comment period under § 124.10. The request shall explain how the requirements of $ 124.13 and 40 CFR Part 125, Subpart D have been met. (2) Non-conventional pollutants. A request for a variance from the BAT requirements for CWA section 301(b)(2)(F) pollutants (commonly called "non-conventional" pollutants) pursuant to section 301(c) of CWA because of the economic capability of the owner or operator. or pursuant to section 301(g) of CWA because of certain environmental considerations, when those requirements were based on effluent limitation guidelines. must be made by: (i) Submitting an initial request to the Regional Administrator, as well as to the State Director if applicable, stating the name of the discharger, the permit number, the outfall number(s), the applicable effluent guideline, and whether the discharger is requesting a section 301(c) or section 301(g) modification or both. This request must have been filed not later than: (A) September 25, 1978, for a pollutant which is controlled by a BAT effluent limitation guideline promulgated before December 27, 1977; or (B) 270 days after promulgation of an applicable effluent limitation guideline for guidelines promulgated after December 27, 1977; and (ii) Submitting a completed request no later than the close of the public comment period under § 124.10 demonstrating that the requirements of $ 124.13 and the applicable requirements of Part 125 have been met. (iii) Requests for variance from effluent limitations not based on effluent limitation guidelines need only comply with paragraph (1)(2)(ii) of this section and need not be preceded by an initial request under paragraph (1)(2)(i) of this section. (3) Delay in construction of POTW. An extension under CWA section 301(i)(2) of the statutory deadlines in sections 301(b)(1)(A) or (b)(1)(C) of CWA based on delay in completion of a POTW into which the source is to discharge must have been requested on or before June 26, 1978, or 180 days after the relevant POTW requested an extension under paragraph (m)(2) of this section, whichever is later. but in no event may this date have been later than December 25, 1978. The request shall explain how the requirements of 40 CFR Part 125, Subpart J have been met. (4) Innovative technology. An extension under CWA section 301(k) from the statutory deadline of section 301(b)(2)(A) for best available technology based on the use of innovative technology may be requested no later than the close of the public comment period under $ 124.10 for the discharger's initial permit requiring compliance with section 301(b)(2)(A). The request shall demonstrate that the requirements of § 124.13 and Part 125, Subpart C have been met. (5) Water quality related effluent limitations. A modification under section 302(b)(2) of requirements under section 302(a) for achieving water quality related effluent limitations may be requested no later than the close of the public comment period under $ 124.10 on the permit from which the modification is sought. (6) Thermal discharges. A variance under CWA section 316(a) for the thermal component of any discharge must be filed with a timely application for a permit under this section, except that if thermal effluent limitations are established under CWA Section 402(a)(1) or are based on water quality standards the request for a variance may be filed by the close of the public comment period under § 124.10. A copy of the request as required under 40 CFR Part 125, Subpart H, shall be sent simultaneously to the appropriate State or interstate certifying agency as required under 40 CFR Part 125. (See I 124.65 for special procedures for section 316(a) thermal variances.) (m) Variance requests by POTWs. A discharger which is a publicly owned treatment works (POTW) may request a variance from otherwise applicable effluent limitations under any of the following statutory provisions as specified in this paragraph: (1) Discharges into marine waters. A request for a modification under CWA section 301(h) of requirements of CWA section 301(b)(1)(B) for discharges into marine waters must be filed in accordance with the requirements of 40 CFR Part 125, Subpart G. (2) Delay in construction. An extension under CWA section 301(i)(1) of [Sec. 122.21(m)(2)] 131:1012 the statutory deadlines in CWA section 301(b)(1)(B) or (b)(1)(C) based on delay in the construction of the POTW must have been requested on or before June 26, 1978. (3) Water quality based effluent limitation. A modification under CWA section 302(b)(2) of the requirements under section 302(a) for achieving water quality based effluent limitations shall be requested no later than the close of the public comment period under § 124.10 on the permit from which the modification is sought. (n) Expedited variance procedures and time extensions. (1) Notwithstanding the time requirements in paragraphs (1) and (m) of this section, the Director may notify a permit applicant before a draft permit is issued under § 124.6 that the draft permit will likely contain limitations which are eligible for variances. In the notice the Director may require the applicant as a condition of consideration of any potential variance request to submit a request explaining how the requirements of 40 CFR Part 125 applicable to the variance have been met and may require its submission within a specified reasonable time after receipt of the notice. The notice may be sent before the permit application has been submitted. The draft or final permit may contain the alternative limitations which may become effective upon final grant of the variance. (2) A discharger who cannot file a complete request required under paragraph (1)(2)(ii) or (1)(2)(iii) of this section may request an extension. The extension may be granted or denied at the discretion of the Director. Extensions shall be no more than 6 months in duration. (0) Recordkeeping. Applicants shall keep records of all data used to complete permit applications and any supplemental information submitted under this section for a period of at least 3 years from the date the application is signed. NOTE 1: At 46 FR 2046, Jan. 8. 1981, the Environmental Protection Agency suspended until further notice I 122.21(g)(7)(iI)(A) and the corresponding portions of Item V-C of the NPDES application Form 2c as they apply to coal mines. This revision continues that suspension. 1. Testing and reporting for all four organic fractions in the Greige Mills Subcategory of the Textile Mills industry (Subpart C-Low water use processing of 40 CFR Part 410), and testing and reporting for the pesticide fraction in all other subcategories of this industrial category. 2. Testing and reporting for the volatile, base/neutral and pesticide fractions in the Base and Precious Metals Subcategory of the Ore Mining and Dressing industry (Subpart B of 40 CFR Part 440), and testing and reporting for all four fractions in all other subcategories of this Industrial category. 3. Testing and reporting for all four GC/ MS fractions in the Porcelain Enameling industry. This revision continues that suspension. NOTE 3: At 46 FR 35090, July 1. 1981. the Environmental Protection Agency suspended until further notice I 122.21(g)(7)(i)(A) and the corresponding portions of Item V-C of the NPDES application Form 2c as they apply to: 1. Testing and reporting for the pesticide fraction in the Tall Oil Rosin Subcategory (Subpart D) and Rosin-Based Derivatives Subcategory (Subpart F) of the Gum and Wood Chemicals industry (40 CFR Part 454), and testing and reporting for the pesticide and base-neutral fractions in all other subcategories of this industrial category. 2. Testing and reporting for the pesticide fraction in the Leather Tanning and Finishing. Paint and Ink Formulation, and Photographic Supplies industrial categories. 3. Testing and reporting for the acid, base/neutral and pesticide fractions in the Petroleum Refining industrial category. 4. Testing and reporting for the pesticide fraction in the Papergrade Sulfite subcategories (Subparts J and U) of the Pulp and Paper industry (40 CFR Part 430); testing and reporting for the base/neutral and pesticide fractions in the following subcategories: Deink (Subpart Q). Dissolving Kraft (Subpart F), and Paperboard from Waste Paper (Subpart E); testing and reporting for the volatile, base/neutral and pesticide fractions in the following subcategories: BCT Bleached Kraft (Subpart H), Semi-Chemical (Subparts B and C), and Nonintegrated-Fine Papers (Subpart R); and testing and reporting for the acid, base/neutral. and pesticide fractions in the following subcategories: Fine Bleached Kraft (Subpart 1), Dissolving Sulfite Pulp (Subpart K), Groundwood-Fine Papers (Subpart O), Market Bleached Kraft (Subpart G), Tissue from Wastepaper (Subpart T), and Nonintegrated-Tissue Papers (Subpart S). 5. Testing and reporting for the base/neutral fraction in the Once-Through Cooling Water. Fly Ash and Bottom Ash Transport Water process wastestreams of the Steam Electric Power Plant industrial category. This revision continues that suspension. NOTE 2: At 46 FR 22585, Apr. 20, 1981, the Environmental Protection Agency suspended until further notice $ 122.21(g)(7)(i)(A) and the corresponding portions of Item V-C of the NPDES application Form 2c as they apply to: Note 4: [Deleted] [Note 4 deleted by 50 FR 6940, February 19. 1985] (Information collection requirements in paragraph (f) were approved by the Office of Management and Budget under control number 2000-0474). (Information collection requirements in paragraph (g) were approved by the Office of Management and Budget under control number 2000-0059). (Information collection requirements in paragraph (h) were approved by the Office of Management and Budget under control number 2040-0086). [122.21 amended by 50 FR 4513, January 31, 1985] 4 122.22 Signatories to permit applications and reports (applicable to State programs, see $ 123.25). (a) Applications. All permit applications shall be signed as follows: (1) For a corporation: by a responsible corporate officer. For the purpose of this section, a responsible corporate officer means: (i) A president, secretary, treasurer. or vice-president of the corporation in charge of a principal business function, or any other person who perfoms similar policy- or decisionmaking functions for the corporation (ii) the manager of one or more manufacturing. production. or operating facilities employing more than 250 persons or having gross annual sales or expenditures exceeding $25 million (in second-quarter 1980 dollars). if authority to sign documents has been assigned or delegated to the manager in accordance with corporate procedures. Note: EPA does not require specific assignments or delegations of authority to responsible corporate officers identified in 122.22[a](1)(i). The Agency will presume that these responsible corporate officers have the requisite authority to sign permit applications unless the corporation has notified the Director to the contrary. Corporate procedures governing authority to sign permit applications may provide for assignment or delegation to applicable corporate positions under I 122.22(a)(1)(ii) rather than to specific individuals. (122.22(a)(1) revised by 48 FR 39619, September 1. 1983] (2) For 0 partnership or sole proprietership: by a general partner or the proprietor. respectively. or [Sec. 122.22(a)(2)] 131:1013 (3) For a municipality. State, Federal. or other public agency: by either a principal executive officer or ranking elected official. For purposes of this section, a principal executive officer of a Federal agency includes: (i) The chief executive officer of the agency, or (ii) a senior executive officer having responsibility for the overall operations of a principal geographic unit of the agency (e.g. Regional Administrators of EPA). [122.22(a)(3) revised by 48 FR 39619, September 1, 1983] (b) All reports required by permits, other information requested by the Director. and all permit applications submitted for Group II storm water discharges under § 122.26(b)(3) shall be signed by a person described in paragraph (a). or by a duly authorized representative of that person. A person is a duly authorized representative only if: [122.22(b) introductory text revised by 49 FR 38046, September 26, 1984] (1) The authorization is made in writing by a person described in paragraph (a) of this section; (2) The authorization specifies either an individual or a position having responsibility for the overall operation of the regulated facility or activity such as the position of plant manager, operator of a well or a well field, superintendent. position of equivalent responsibility. or an individual or position having overall responsibility for environmental matters for the company. (A duly authorized representative may thus be either a named individual or any individual occupying a named position.) [122.22(b)(2) revised by 49 FR 38046, September 26, 1984] (3) The written authorization is submitted to the Director. (c) Changes to authorization. If an authorization under paragraph (b) of this section is no longer accurate because a different individual or position has responsibility for the overall operation of the facility, a new authorization satisfying the requirements of paragraph (b) of this section must be submitted to the Director prior to or together with any reports. information, or applications to be signed by an authorized representative. (d) Certification. Any person signing 8 document under paragraphs (a) or (b) of this section shall make the following certification: 1 certify under penalty of law that this document and all attachments were prepared under my direction or supervision in accordance with a system designed to assure that qualified personnel properly gather and evaluate the information submitted. Based on my inquiry of the person or persons who manage the system. or those persons directly responsible for gathering the information, the information submitted is, to the best of my knowledge and belief. true. accurate, and complete. ] am aware that there are significant penalties for submitting false information. including the possibility of fine and imprisonment for knowing violations. (122.22(d) revised by 48 FR 39619, September 1, 1983; corrected by 50 FR 6940, February 19. 1985] 8 122.23 Concentrated animal feeding operations (applicable to State NPDES programs, see § 123.25). (a) Permit requirement. Concentrated animal feeding operations are point sources subject to the NPDES permit program. (b) Definitions. (1) "Animal feeding operation" means a lot or facility (other than an aquatic animal production facility) where the following conditions are met: (i) Animals (other than aquatic animals) have been, are, or will be stabled or confined and fed or maintained for a total of 45 days or more in any 12- month period, and (ii) Crops, vegetation forage growth, or post-harvest residues are not sustained in the normal growing season over any portion of the lot or facility. (2) Two or more animal feeding operations under common ownership are considered, for the purposes of these regulations, to be a single animal feeding operation if they adjoin each other or if they use a common area or system for the disposal of wastes. (3) "Concentrated animal feeding operation" means an "animal feeding operation" which meets the criteria in Appendix B of this part, or which the Director designates under paragraph (c) of this section. (c) Case-by-case designation of concentrated animal feeding operations. (1) The Director may designate any animal feeding operation as a concentrated animal feeding operation upon determining that it is a significant contributor of pollution to the waters of the United States. In making this designation the Director shall consider the following factors: (i) The size of the animal feeding operation and the amount of wastes reaching waters of the United States; (ii) The location of the animal feeding operation relative to waters of the United States; (iii) The means of conveyance of animal wastes and process waste waters into waters of the United States; (iv) The slope, vegetation. rainfall, and other factors affecting the likelihood or frequency of discharge of animal wastes and process waste waters into waters of the United States: and (v) Other relevant factors. (2) No animal feeding operation with less than the numbers of animals set forth in Appendix B of this part shall be designated as a concentrated animal feeding operation unless: (i) Pollutants are discharged into waters of the United States through a manmade ditch. flushing system. or other similar manmade device; or (ii) Pollutants are discharged directly into waters of the United States which originate outside of the facility and pass over, across, or through the facility or otherwise come into direct contact with the animals confined in the operation. (3) A permit application shall not be required from a concentrated animal feeding operation designated under this paragraph until the Director has conducted an on-site inspection of the operation and determined that the operation should and could be regulated under the permit program. 122.24 Concentrated aquatic animal production facilities (applicable to State NPDES programs, see $ 123.25). (a) Permit requirement. Concentrated aquatic animal production facilities. as defined in this section. are point sources subject to the NPDES permit program. (b) Defintion. "Concentrated aquatic animal production facility" means a hatchery, fish farm. or other facility which meets the criteria in Appendix C of this part, or which the Director designates under paragraph (c) of this section. (c) Case-by-case designation of concentrated aquatic animal production facilities. (1) The Director may designate any warm or cold water aquatic animal production facility as a concentrated aquatic animal production facility upon determining that it is a sig- [Sec. 122.24(c)(1)] 131:1014 nificant contributor of pollution to waters of the United States. In making this designation the Director shall consider the following factors: (i) The location and quality of the receiving waters of the United States; (ii) The holding, feeding. and production capacities of the facility; (iii) The quantity and nature of the pollutants reaching waters of the United States; and (iv) Other relevant factors. (2) A permit application shall not be required from a concentrated aquatic animal production facility designated under this paragraph until the Director has conducted on-site inspection of the facility and has determined that the facility should and could be regulated under the permit program. 5 122.25 Aquaculture projects (applicable to State NPDES programs, see § $ 123.25). (a) Permit requirement. Discharges into aquaculture projects, as defined in this section, are subject to the NPDES permit program through section 318 of CWA, and in accordance with 40 CFR Part 125, Subpart B. (b) Definitions. (1) "Aquaculture project" means a defined managed water area which uses discharges of pollutants into that designated area for the maintenance or production of harvestable freshwater, estuarine, or marine plants or animals. (2) "Designated project area" means the portions of the waters of the United States within which the permittee or permit applicant plans to confine the cultivated species, using a method or plan or operation (including, but not limited to, physical confinement) which, on the basis of reliable scientific evidence, is expected to ensure that specific individual organisms comprising an aquaculture crop will enjoy increased growth attributable to the discharge of pollutants, and be harvested within a defined geographic area. § 122.26 Storm water discharges (applicable to State NPDES programs, see $ 123.25). [122.26 revised by 49 FR 38046, September 26, 1984] (a) Permit requirement. Storm water point sources. as defined in this section, are point sources subject to the NPDES permit program. The Director may issue an NPDES permit or permits for discharges into waters of the United States from a storm water point source covering all conveyances which are a part of that storm water discharge. Where there is more than one owner or operator of a single system of such conveyances, any or all discharges into the storm water discharge system may be identified in the application submitted by the owner or operator of the portion of the system that discharges directly into waters of the United States. Any such application shall include all information regarding discharges into the system that would be required if the dischargers submitted separate applications. Dischargers so identified shall not require a separate permit unless the Director specifies otherwise. Any permit covering more than one owner or operator shall identify the effluent limitations. if any. which apply to each owner or operator. Where there is more than one owner or operator. no discharger into the storm water discharge may be subject to a permit condition for discharges into the storm water discharge other than its own discharges into that system without its consent. All dischargers into a storm water discharge system must either be covered by an individual permit or a permit issued to the owner or operator of the portion of the system that directly discharges. (See $ 122.21(c)(2) for application deadline for existing storm water point sources.) (b) Definitions. (1) "Storm water point source" means a conveyance or system of conveyances (including pipes, conduits. ditches. and channels) primarily used for collecting and conveying storm water runoff and which: (i) Is located at an urbanized area as designated by the Bureau of the Census according to the criteria in 39 FR 15202 (May 1, 1974); or [122.26(b)(1)(i) corrected by 50 FR 6940, February 19, 1985] (ii) Discharges from lands or facilities used for industrial or commercial activities: or (iii) Is designated under paragraph (c) of this section. Conveyances that discharge storm water runoff combined with municipal sewage are point sources that must obtain NPDES permits. but are not "storm water point sources". (2) "Group I storm water discharge" means any "storm water point source" which is: (i) Subject to effluent limitations guidelines, new source performance standards, or toxic pollutant effluent standards; (ii) Designated under paragraph (c) of this section; or (iii) Located at an industrial plant or in plant associated areas. "Plant associated areas" means industrial plant yards, immediate access roads, drainage ponds, refuse piles, storage piles or areas and material or products loading and unloading areas. The term excludes areas located on plant lands separate from the plant's industrial activities, such as office buildings and accompanying parking lots. (3) "Group II storm water discharge" means any "storm water point source" not included in paragraph (b)(2) of this section. (See §122.21(g)(10) for exemption from certain application requirements.) (4) A conveyance or system of conveyances operated primarily for the purpose of collecting and conveying storm water runoff which does not constitute a "storm water point source" under paragraph (b)(1) of this section is not considered a point source subject to the requirements of CWA. (5) Whether a system of conveyances is or is not a storm water point source for purposes of this section shall have no bearing on whether the system is eligible for funding under Title II of CWA. See 40 CFR 35.925-21. (c) Case-by-case designation of storm water discharges. The Director may designate a conveyance or system of conveyances primarily used for collecting and conveying storm water runoff as a storm water point source. This designation may be made to the extent allowed or required by EPA promulgated effluent limitations guidelines for point sources in the storm water discharge category or when: (1) A Water Quality Management plan under section 208 of CWA which contains requirements applicable to such point sources is approved: or (2) The Director determines that a storm water discharge is a significant contributor of pollution to the waters of the United States. In making this determination the Director shall consider the following factors: (1) The location of the discharge with respect to waters of the United States: [Sec. 122.26(c)(2)(i)] S-734 131:1015 (ii) The size of the discharge; (iii) The quantity and nature of the pollutants reaching waters of the United States: and (iv) Other relevant factors. § 122.27 Silvicultural activities (applicable to State NPDES programs. see 5 123.25). (a) Permit requirement. Silvicultural point sources, as defined in this section, as point sources subject to the NPDES permit program. (b) Definitions. (1) "Silvicultural point source" means any discernible, confined and discrete conveyance related to rock crushing, gravel washing, log sorting, or log storage facilities which are operated in connection with silvicultural activities and from which pollutants are discharged into waters of the United States. The term does not include non-point source silvicultural activities such as nursery operations, site preparation. reforestation and subsequent cultural treatment, thinning, prescribed burning. pest and fire control, harvesting operations, surface drainage, or road construction and maintenance from which there is natural runoff. However, some of these activities (such as stream crossing for roads) may involve point source discharges of dredged or fill material which may require a CWA section 404 permit (See 33 CFR 209.120 and Part 233). (2) "Rock crushing and gravel washing facilities" means facilities which process crushed and broken stone, gravel, and riprap (See 40 CFR Part 436, Subpart B, including the effluent limitations guidelines). (3) "Log sorting and log storage facilities" means facilities whose discharges result from the holding of unprocessed wood, for example, logs or roundwood with bark or after removal of bark held in self-contained bodies of water (mill ponds or log ponds) or stored on land where water is applied intentionally on the logs (wet decking). (See 40 CFR Part 429, Subpart I. including the effluent limitations guidelines). $ 122.28 General permits (applicable to State NPDES programs. see # 123.25). (a) Coverage. The Director may issue a general permit in accordance with the following: (1) Area. The general permit shall be written to cover a category of discharges described in the permit under paragraph (a)(2) of this section, except those covered by individual permits, within a geographic area. The area shall correspond to existing geographic or political boundaries, such as: (i) Designated planning areas under sections 208 and 303 of CWA; (ii) Sewer districts or sewer authorities; (iii) City, county, or State political boundaries; (iv) State highway systems; (v) Standard metropolitan statistical areas as defined by the Office of Management and Budget; (vi) Urbanized areas as designated by the Bureau of the Census according to criteria in 30 FR 15202 (May 1, 1974); or (vii) Any other appropriate division or combination of boundaries. [122.28(a)(2) amended by 49 FR 38046, September 26, 1984] (2) Sources: The general permit may be written to regulate, within the area described in paragraph (a)(1) of this section, either: (i) Storm water point sources; or [Editor's note: EPA February 19, 1985 (50 FR 6940), corrected 122.28(a)(2)(ii) as it appeared at 48 FR 14165, April 1, 1983. However that entire subparagraph was revised September 26, 1984 (49 FR 38048). superseding the 1983 text.] (ii) A category of point sources other than storm water point sources if the sources all: (A) Involve the same or substantially similar types of operations; (B) Discharge the same types of wastes; (C) Require the same effluent limitation or operating conditions; (D) Require the same or similar monitoring: and (E) In the opinion of the Director, are more appropriately controlled under a general permit than under individual permits. (b) Administration. (1) In general. General permits may be issued, modified, revoked and reissued, or terminated in accordance with applicable requirements of Part 124 or corresponding State regulations. Special procedures for issuance are found at $ 123.44 for States and $ 124.58 for EPA. (2) Requiring an individual permit. (i) The Director may require any person authorized by a general permit to apply for and obtain an individual NPDES permit. Any interested person may petition the Director to take action under this paragraph. Cases where an individual NPDES permit may be required include the following: (A) The discharge(s) is a significant contributor of pollution as determined by the factors set forth at $ 122.26(c)(2); (B) The discharger is not in compliance with the conditions of the general NPDES permit; (C) A change has occurred in the availability of demonstrated technology or practices for the control or abatement of pollutants applicable to the point source: (D) Effluent limitation guidelines are promulgated for point sources covered by the general NPDES permit; (E) A Water Quality Management plan containing requirements applicable to such point sources is approved; or (F) The requirements of paragraph (a) of this section are not met. (ii) For EPA issued general permits only, the Regional Administrator may require any owner or operator authorized by a general permit to apply for an individual NPDES permit as provided in paragraph (b)(2)(i) of this section. only if the owner or operator has been notified in writing that 8 permit application is required. This notice shall include a brief statement of the reasons for this decision, an application form, a statement setting a time for the owner or operator to file the application, and a statement that on the effective date of the individual NPDES permit the general permit as It applies to the individual permittee shall automatically terminate. The Director may grant additional time upon request of the applicant. (iii) Any owner or operator authorized by a general permit may request to be excluded from the coverage of the general permit by applying for an individual permit. The owner or operator shall submit an application under $ 122.21, with reasons supporting the request, to the Director no later than 90 days after the publication by EPA of the general permit in the FEDERAL REGISTER or the publication by a State in accordance with applicable State law. The request shall be processed under Part 124 or applicable State procedures. The request shall be granted by issuing of any individual permit if the reasons cited by the owner or operator are adequate to support the request. (iv) When an individual NPDES permit is issued to an owner or operator otherwise subject to a general NPDES permit, the applicability of the general permit to the individual NPDES permittee is automatically terminated on the effective date of the individual permit. [Sec. 122.28(b)(2)(iv)] 131:1016 (v) A source excluded from a general permit solely because it already has an individual permit may request that the individual permit be revoked, and that it be covered by the general permit. Upon revocation of the individual permit, the general permit shall apply to the source. [122.28(c) added by 48 FR 39619, September 1, 1983] (c) Offshore Oil and Gas Facilities (Not applicable to State programs.) (1) The Regional Administrator shall. except as provided below, issue general permits covering discharges from offshore oil and gas exploration and production facilities within the Region's jurisdiction. Where the offshore area includes areas, such as areas of biological concern, for which separate permit conditions are required. the Regional Administrator may issue separate general permits, individual permits. or both. The reason for separate general permits or individual permits shall be et forth in the appropriate fect sheets or statements of basis. Any statement of basis or fact sheet for a draft permit shall include the Regional Administrator's tentative determination as to whether the permit applies to "new sources," "new dischargers," or existing sources and the reasons for this determination, and the Regional Administrator's proposals as to areas of biological concern subject either to separate individual or general permits. For Federally leased lands, the general permit area should generally be no less extensive than the lease sale area defined by the Department of the Interior. (2) Any interested person, including any prospective permittee, may petition the Regional Administrator to issue a general permit. Unless the Regional Administrator determines under paragraph (c)(1) that no general permit is appropriate, he shall promptly provide a project decision schedule covering the issuance of the general permit or permits for any lease sale area for which the Department of the Interior has published a draft environmental impact statement. The project decision schedule shall meet the requirements of I 124.3(g), and shall include a schedule providing for the issuance of the final general permit or permits not later than the date of the final notice of sale projected by the Department of the Interior or six months after the date of the request, whichever is later. The Regional Administrator may, at his discretion, issue 8 project decision schedule for offshore oil and gas facilities in the territorial seas. (3) Nothing in this paragraph (c) shall affect the authority of the Regional Administrator to require an individual permit under § 122.28(b)(2)(i)(A) through (F). § 122.29 New sources and new dischargers. (a) Definitions. (1) "New source" and "new discharger" are defined in $ 122.2. [See Note 2.] (2) "Source" means any building, structure, facility, or installation from which there is or may be a discharge of pollutants. (3) "Existing source" means any source which is not a new source or a new discharger. (4) "Site" is defined in § 122.2; (5) "Facilities or equipment" means buildings, structures, process or production equipment or machinery which form a permanent part of the new source and which will be used in its operation, if these facilities or equipment are of such value as to represent a substantial commitment to construct. It excludes facilities or equipment used in connection with feasibility. engineering, and design studies regarding the source or water pollution treatment for the source. [122.29(b) revised by 49 FR 38046, September 26, 1984] (b) Criteria for new source determination. (1) Except as otherwise provided in an applicable new source performance standard, a source is a "new source" if it meets the definition of "new source" in $122.2, and (i) It is constructed at a site at which no other source is located; or (ii) It totally replaces the process or production equipment that causes the discharge of pollutants at an existing source; or (iii) Its processes are substantially independent of an existing source at the same site. In determining whether these processes are substantially independent, the Director shall consider such factors as the extent to which the new facility is integrated with the existing plant; and the extent to which the new facility is engaged in the same general type of activity as the existing source. (2) A source meeting the requirements of paragraphs (b)(1)(i), (ii), or (iii) of this section is a new source only if a new source performance standard is independently applicable to it. If there is no such independently applicable standard, the source is a new discharger. See $ 122.2. (3) Construction on a site at which an existing source is located results in a modification subject to § 122.62 rather than a new source (or a new discharger) if the construction does not create a new building, structure, facility, or installation meeting the criteria of paragraphs (b)(1)(ii) or (iii) of this section but otherwise alters, replaces, or adds to existing process or production equipment. (4) Construction of a new source as defined under § 122.2 has commenced if the owner or operator has: (i) Begun, or caused to begin as part of a continuous on-site construction program: (A) Any placement, assembly, or installation of facilities or equipment; or (B) Significant site preparation work including clearing, excavation. or removal of existing buildings, structures, or facilities which is necessary for the placement, assembly, or installation of new source facilities or equipment; or (ii) Entered into a binding contractual obligation for the purchase of facilities or equipment which are intended to be used in its operation within a reasonable time. Options to purchase or contracts which can be terminated or modified without substantial loss, and contracts for feasibility, engineering. and design studies do not constitute a contractual obligation under the paragraph. (c) Requirement for an Environmental Impact Statement (1) The issuance of an NPDES permit to new source: (i) By EPA may be a major Federal action significantly affecting the quality of the human environment within the meaning of the National Environmental Policy Act of 1969 (NEPA), 33 U.S.C. 4321 et seq. and is subject to the environmental review provisions of NEPA as set out in 40 CFR Part 6, Subpart F. EPA will determine whether an Environmental Impact Statement (EIS) is required under I 122.21(k) (special provisions for applications from new sources) and 40 CFR Part 6, Subpart F; (ii) By an NPDES approved State is [Sec. 122.29(c)(1)(ii)] S-734 131:1017 not a Federal action and therefore does not require EPA to conduct an environmental review. (2) An EIS prepared under this paragraph shall include a recommendation either to issue or deny the permit. (1) If the recommendation is to deny the permit, the final EIS shall contain the reasons for the recommendation and list those measures, if any. which the applicant could take to cause the recommendation to be changed; (ii) If the recommendation is to issue the permit, the final EIS shall recommend the actions. if any, which the permittee should take to prevent or minimize any adverse environmental impacts: (3) The Regional Administrator, to the extent allowed by law, shall issue, condition (other than imposing effluent limitations), or deny the new source NPDES permit following a complete evaluation of any significant beneficial and adverse impacts of the proposed action and a review of the recommendations contained in the EIS or finding of no significant impact. [122.29(c)(3) amended by 49 FR 38046, September 26, 1984] (4)(i) No on-site construction of a new source for which an EIS is required shall commence before final Agency action in issuing a final permit incorporating appropriate EIS-related requirements, or before execution by the applicant of a legally binding written agreement which requires compliance with all such requirements, unless such construction is determined by the Regional Administrator not to cause significant or irreversible adverse environmental impact. The provisions of any agreement entered into under this paragraph shall be incorporated as coditions of the NPDES permit when it is issued. (ii) No on-site construction of a new source for which an EIS is not required shall commence until 30 days after issuance of a finding of no significant impact, unless the construction is determined by the Regional Administrator not to cause significant or irreversible adverse environmental impacts. (5)(i) The commencement of on-site construction in violation of paragraph (c) of this section shall constitute grounds for denial of a permit. [122.29(c)(5)(i) added by 49 FR 38046, September 26, 1984] (5)(ii) The permit applicant must notify the Regional Administrator of any onsite construction which begins before the times specified in paragrah (c)(4) of this section. If on-site construction begins in violation of this paragraph, the Regional Administrator shall advise the owner or operator that it is proceeding with construction at its own risk, and that such construction activities constitute grounds for denial of a permit. The Regional Administrator may seek a court order to enjoin construction in violation of this paragraph. [Former 122.29(c)(5) redesignated as (c)(5)(ii) by 49 FR 38046, September 26, 1984] (d) Effect of compliance with new source performance standards. (The provisions of this paragraph do not apply to existing sources which modify their pollution control facilities or construct new pollution control facilities and achieve performance standards, but which are neither new sources or new dischargers or otherwise do not meet the requirements of this paragraph.) (1) Except as provided in paragraph (d)(2) of this section, any new discharger, the construction of which commenced after October 18. 1972, or new source which meets the applicable promulgated new source performance standards before the commencement of discharge, may not be subject to any more stringent new source performance standards or to any more stringent technology-based standards under section 301(b)(2) of CWA for the soonest ending of the following periods: (i) Ten years from the date that construction is completed; (ii) Ten years from the date the source begins to discharge process or other nonconstruction related wastewater; or (iii) The period of depreciation or amortization of the facility for the purposes of section 167 or 169 (or both) of the Internal Revenue Code of 1954. (2) The protection from more stringent standards of performance afforded by paragraph (d)(1) of this section does not apply to: (1) Additional or more stringent permit conditions which are not technology based; for example, conditions based on water quality standards, or toxic effluent standards or prohibitions under section 307(a) of CWA; or (ii) Additional permit conditions in accordance with § 125.3 controlling toxic pollutants or hazardous substances which are not controlled by new source performance standards. This includes permit conditions controlling pollutants other than those identified as toxic pollutants or hazardous substances when control of these pollutants has been specifically identified as the method to control the toxic pollutants or hazardous substances. (3) When an NPDES permit issued to a source with a "protection period" under paragraph (d)(1) of this section will expire on or after the expiration of the protection period, that permit shall require the owner or operator of the source to comply with the requirements of section 301 and any other then applicable requirements of CWA immediately upon the expiration of the protection period. No additional period for achieving compliance with these requirements may be allowed except when necessary to achieve compliance with requirements promulgated less than 3 years before the expiration of the protection period. (4) The owner or operator of a new source, a new discharger which commenced discharge after August 13, 1979, or a recommencing discharger shall install and have in operating condition, and shall "start-up" all pollution control equipment required to meet the conditions of its permits before beginning to discharge. Within the shortest feasible time (not to exceed 90 days), the owner or operator must meet all permit conditions. The requirements of this paragraph do not apply if the owner or operator is issued a permit containing a compliance schedule under $122.47(a)(2). (122.29(d)(4) amended by 49 FR 38046, September 26, 1984] (5) After the effective date of new source performance standards, it shall be unlawful for any owner or operator of any new source to operate the source in violation of those standards applicable to the source. Note 1: [Deleted] Note 2: [Deleted] [Notes 1, 2 deleted by 50 FR 6940, February 19, 1985] [Sec. 122.29(d)(5)] 131:1018 (Information collection requirements in paragraph (c)(5) were approved by the Office of Management and Budget under control number 2040-0078) [122.29 amended by 50 FR 4513, January 31, 1985] Subpart C-Permit Conditions 122.41 Conditions applicable to all permits (applicable to State programs, see § 123.25). The following conditions apply to all NPDES permits. Additional conditions applicable to NPDES permits are in 122.42. All conditions applicable to NPDES permits shall be incorporated into the permits either expressly or by reference. If incorporated by reference, a specific citation to these regulations (or the corresponding approved State regulations) must be given in the permit. (a) Duty to comply. The permittee must comply with all conditions of this permit. Any permit noncompliance constitutes a violation of the Clean Water Act and is grounds for enforcement action: for permit termination. revocation and reissuance, or modification; or denial of a permit renewal application. (1) The permittee shall comply with effluent standards or prohibitions established under section 307(a) of the Clean Water Act for toxic pollutants within the time provided in the regulations that establish these standards or prohibitions, even if the permit has not yet been modified to incorporate the requirement. (2) The Clean Water Act provides that any person who violates a permit condition implementing sections 301, 302, 306, 307, 308, 318 or 405 of the Clean Water Act is subject to a civil penalty not to exceed $10,000 per day of such violation. Any person who willfully or negligently violates permit conditions implementing sections 301, 302, 306, 307 or 308 of the Act is subject to a fine of not less than $2,500 nor more than $25,000 per day of violation, or by imprisonment for not more than 1 year, or both. [122.41(a)(2) corrected by 50 FR 6940, February 19, 1985] (b) Duty to reapply. If the permittee wishes to continue an activity regulated by this permit after the expiration date of this permit. the permittee must apply for and obtain a new permit. (c) Need to halt or reduce activity not a defense. It shall not be a defense for a permittee in an enforcement action that it would have been necessary 10 halt or reduce the permitted activity in order to maintain compliance with the conditions of this permit. [122.41(c) and (d) revised by 48 FR 39619, September 1, 1983: (c) head corrected by 50 FR 6940, February 19, 1985] (d) Duty to Mitigate. The permittee shall take all reasonable steps to minimize or prevent any discharge in violation of this permit which has a reasonable likelihood of adversely affecting human health or the environment. (3)[e] Proper operation and maintenance. The permittee shall at all times properly operate and maintain all facilities and systems of treatment and control (and related appurtenances) which are installed or used by the permittee to achieve compliance with the conditions of this permit. Proper operation and maintenance also includes adequate laboratory controls and appropriate quality assurance procedures. This provision requires the operation of backup or auxiliary facilities or similar systems which are installed by a permittee only when the operation is necessary to achieve compliance with the conditions of the permit. [122.41(e) revised by 49 FR 38046, September 26, 1984] (f) Permit actions. This permit may be modified, revoked and reissued. or terminated for cause. The filing of a request by the permittee for a permit modification, revocation and reissuance, or termination, or a notification of planned changes or anticipated noncompliance does not stay any permit condition. (g) Property rights. This permit does not convey any property rights of any sort, or any exclusive privilege: (h) Duty to provide information. The permittee shall furnish to the Director, within a reasonable time, any information which the Director may request to determine whether cause exists for modifying, revoking and reissuing, or terminating this permit or to determine compliance with this permit. The permittee shall also furnish to the Director upon request, copies of records required to be kept by this permit. (i) Inspection and entry. The permittee shall allow the Director, or an authorized representative. upon the presentation of credentials and other documents as may be required by law, to: (1) Enter upon the permittee's premises where a regulated facility or activity is located or conducted, or where records must be kept under the conditions of this permit: (2) Have access to and copy, at reasonable times, any records that must be kept under the conditions of this permit; (3) Inspect at reasonable times any facilities, equipment (including monitoring and control equipment), practices, or operations regulated or required under this permit; and (4) Sample or monitor at reasonable times, for the purposes of assuring permit compliance or as otherwise authorized by the Clean Water Act, any substances or parameters at any location. (j) Monitoring and records. (1) Samples and measurements taken for the purpose of monitoring shall be representative of the monitored activity. (2) The permittee shall retain records of all monitoring information, including all calibration and maintenance records and all original strip chart recordings for continuous monitoring instrumentation, copies of all reports required by this permit, and records of all data used to complete the application for this permit, for a period of at least 3 years from the date of the sample, measurement, report or application. This period may be extended by request of the Director at any time. (3) Records of monitoring information shall include: (i) The date. exact place, and time of sampling or measurements: (ii) The individual(s) who performed the sampling or measurements; (iii) The date(s) analyses were performed: (iv) The individual(s) who performed the analyses; (v) The analytical techniques or methods used; and (vi) The results of such analyses. (4) Monitoring must be conducted according to test procedures approved under 40 CFR Part 136, unless other test procedures have been specified in this permit. (5) The Clean Water Act provides that any person who falsifies, tampers with, or knowingly renders inaccurate any monitoring device or method required to be maintained under this permit shall. [Sec. 122.41(j)(5)] 131:1019 upon conviction, be punished by a fine of not more than $10,000 per violation, or by imprisonment for not more than 6 months per violation, or by both. (k) Signatory requirement. (1) All applications, reports, or information submitted to the Director shall be signed and certified. (See § 122.22) (2) The CWA provides that any person who knowingly makes any false statement, representation. or certification in any record or other document submitted or required to be maintained under this permit, including monitoring reports or reports of compliance or non-compliance shall, upon conviction, be punished by a fine of not more than $10,000 per violation, or by imprisonment for not more than 6 months per violation, or by both. (1) Reporting requirements. - (1) Planned changes. The permittee shall give notice to the Director as soon as possible of any planned physical alterations or additions to the permitted facility. Notice is required only when: (i) The alteration or addition to a permitted facility may meet one of the criteria for determining whether a facility is a new source in $122.29(b); or (ii) The alteration or addition could significantly change the nature or increase the quantity of pollutants discharged. This notification applies to pollutants which are subject neither to effluent limitations in the permit, nor to notification requirements under § 122.42(a)(1). [122.41(I)(1) revised by 49 FR 38046, September 26, 1984] (2) Anticipated noncompliance. The permittee shall give advance notice to the Director of any planned changes in the permitted facility or activity which may result in noncompliance with permit requirements. (3) Transfers. This permit is not transferable to any person except after notice to the Director. The Director may require modification or revocation and reissuance of the permit to change the name of the permittee and incorporate such other requirements as may be necessary under the Clean Water Act. (See I 122.61; in some cases, modification or revocation and reissuance is mandatory.) (4) Monitoring reports. Monitoring results shall be reported at the intervals specified elsewhere in this permit. (i) Monitoring results must be reported on a Discharge Monitoring Report (DMR). (ii) If the permittee monitors any pollutant more frequently than required by the permit, using test procedures approved under 40 CFR 136 or 88 specified in the permit. the results of this monitoring shall be included in the calculation and reporting of the data submitted in the DMR. (iii) Calculations for all limitations which require averaging of measurements shall utilize an arithmetic mean unless otherwise specified by the Director in the permit. (5) Compliance schedules. Reports of compliance or noncompliance with, or any progress reports on, interim and final requirements contained in any compliance schedule of this permit shall be submitted no later than 14 days following each schedule date. (6) Twenty-four hour reporting. (i) The permittee shall report any noncompliance which may endanger health or the environment. Any information shall be provided orally within 24 hours from the time the permittee becames aware of the circumstances. A written submission shall also be provided within 5 days of the time the permittee becomes aware of the circumstances. The written submission shall contain a description of the noncompliance and its cause; the period of noncompliance, including exact dates and times, and if the noncompliance has not been corrected, the anticipated time it is expected to continue; and steps taken or planned to reduce, eliminate, and prevent reoccurrence of the noncompliance. (ii) The following shall be included as information which must be reported within 24 hours under this paragraph. (A) Any unanticipated bypass which exceeds any effluent limitation in the permit. (See $ 122.41(g). (B) Any upset which exceeds any effluent limitation in the permit. (C) Violation of a maximum daily discharge limitation for any of the pollutants listed by the Director in the permit to be reported within 24 hours. (See $ 122.44(g).) (iii) The Director may waive the written report on a case-by-case basis for reports under paragraph (1)(8)(ii) of this section if the oral report has been received within 24 hours. (7) Other noncompliance. The permittee shall report all instances of noncompliance not reported under paragraphs (I) (4), (5), and (6) of this section, at the time monitoring reports are sumbitted. The reports shall contain the information listed in paragraph (l)(6) of this section. (8) Other information: Where the permittee becomes aware that it failed to submit any relevant facts in a permit application. or submitted incorrect information in a permit application or in any report to the Director, it shall promptly submit such facts or information. [122.41(1)(8) added by 50 FR 6940. February 19, 1985] (m) Bypass. (1) Definitions. (i) "Bypass" means the intentional diversion of waste streams from any portion of a treatment facility. (ii) "Severe property damage" means substantial physical damage to property, damage to the treatment facilities which causes them to become inoperable, or substantial and permanent loss of natural resources which can reasonably be expected to occur in the absence of a bypass. Severe property damage does not mean economic loss caused by delays in production. (2) Bypass not exceeding limitations. The permittee may allow any bypass to occur which does not cause effluent limitations to be exceeded, but only if it also is for essential maintenance to assure efficient operation. These bypasses are not subject to the provisions of paragraphs (m)(3) and (m)(4) of this section. (3) Notice. (i) Anticipated bypass. If the permittee knows in advance of the need for a bypass, it shall submit prior notice, if possible at least ten days before the date of the bypass. (ii) Unanticipated bypass. The permittee shall submit notice of an unanticipated bypass as required in paragraph (1)(6) of this section (24-hour notice). (4) Prohibition of bypass. (i) Bypass is prohibited, and the Director may take enforcement action against a permittee for bypass, unless: (A) Bypass was unavoidable to prevent loss of life, personal injury, or severe property damage: (B) There were no feasible alternatives to the bypass, such as the use of auxiliary treatment facilities, retention of untreated wastes, or maintenance during normal periods of equipment downtime. This condition is not satisfied if adequate back up equipment should have been installed in the exercise of reasonable engineering judgment to prevent a bypass which OCcurred during normal periods of equipment downtime or preventive maintenance; and [122.41(m)(4)(i)(B) revised by 49 FR 38046, September 26, 1984] [Sec. 122.41(m)(4)(i)] 131:1020 (C) The permittee submitted notices as required under paragraph (m)(3) of this section. (ii) The Director may approve an anticipated bypass, after considering its adverse effects, if the Director determines that it will meet the three conditions listed above in paragraph (m)(4)(i) of this section. (n) Upset-(1) Definition. "Upset" means an exceptional incident in which there is unintentional and temporary noncompliance with technology based permit effluent limitations because of factors beyond the reasonable control of the permittee. An upset does not include noncompliance to the extent caused by operational error, improperly designed treatment facilities, inadequate treatment facilities, lack of preventive maintenance, or careless or improper operation. (2) Effect of an upset. An upset constitutes an affirmative defense to an action brought for noncompliance with such technology based permit effluent limitations if the requirements of paragraph (n)(3) of this section are met. No determination made during administrative review of claims that noncompliance was caused by upset, and before an action for noncompliance, is final administrative action subject to judicial review. (3) Conditions necessary for a demonstration of upset. A permittee who wishes to establish the affirmative defense of upset shall demonstrate, through properly signed, contemporaneous operating logs, or other relevant evidence that: (i) An upset occurred and that the permittee can identify the cause(s) of the upset; [122.41(n)(3)(i) amended by 49 FR 38046, September 26, 1984] (ii) The permitted facility was at the time being properly operated; and (iii) The permittee submitted notice of the upset as required in paragraph (1)(6)(i)(B) of this section (24 hour notice). (lv) The permittee complied with any remedial measures required under paragraph (d) of this section. (4) Burden of proof. In any enforcement proceeding the permittee seeking to establish the occurrence of an upset has the burden of proof. (Information collection requirements in paragraph (e)(i) were approved by the Office of Management and Budget under control number 2040-0047). [122.4] amended by 50 FR 4513, January 31, 1985] § 122.42 Additional conditions applicable to specified categories of NPDES permits (applicable to State NPDES programs, see § 123.25). The following conditions, in addition to those set forth in § 122.41, apply to all NPDES permits within the categories specified below: (a) Existing manufacturing, commercial, mining, and silvicultural dischargers. In addition to the reporting requirements under § 122.41(1), all existing manufacturing, commercial, mining, and silvicultural dischargers must notify the Director as soon as they know or have reason to believe: (1) That any activity has occurred or will occur which would result in the discharge on a routine or frequent basis, of any toxic pollutant which is not limited in the permit, if that discharge will exceed the highest of the following "notification levels": [122.42(a)(1) introductory text amended by 49 FR 38046, September 26, 1984] (i) One hundred micrograms per liter (100 µg/1); (ii) Two hundred micrograms per liter (200 µg/1) for acrolein and acrylonitrile; five hundred micrograms per liter (500 µg/1) for 2,4-dinitrophenol and for 2-methyl-4,6-dinitrophenol: and one milligram per liter (1 mg/1) for antimony; (iii) Five (5) times the maximum concentration value reported for that pollutant in the permit application in accordance with § 122.21(g)(7); or [122.42(a)(1)(iii) amended by 49 FR 38046, September 26, 1984] (iv) The level established by the DIrector in accordance with § 122.44(f). (2) That any activity has occurred or will occur which would result in any discharge, on a non-routine or infrequent basis, of a toxic pollutant which is not limited in the permit, if that discharge will exceed the highest of the following "notification levels": (i) Five hundred micrograms per liter (500 ug/I); (ii) One milligram per liter (1 mg/1) for antimony; (iii) Ten (10) times the maximum concentration value reported for that pollutant in the permit application in accordance with $122.21(g)(7). (iv) The level established by the Director in accordance with $ 122.44(f). [122.42(a)(2) revised by 49 FR 38046, September 26, 1984] (b) Publicly owned treatment works. All POTWs must provide adequate notice to the Director of the following: (1) Any new introduction of pollutants into the POTW from an indirect discharger which would be subject to sections 301 or 306 of CWA if it were directly discharging those pollutants; and (2) Any substantial change in the volume or character of pollutants being introduced into that POTW by a source introducing pollutants into the POTW at the time of issuance of the permit. (3) For purposes of this paragraph, adequate notice shall include information on (i) the quality and quantity of effluent introduced into the POTW. and (ii) any anticipated impact of the change on the quantity or quality of effluent to be discharged from the POTW. (Information collection requirements in paragraph (a) were approved by the Office of Management and Budget under control number 2040-0045). [122.42 amended by 50 FR 4513, January 31, 1985] 6 122.43 Establishing permit conditions (applicable to State programs, see # 123.25). (a) In addition to conditions required in all permits (§§ 122.41 and 122.42). the Director shall establish conditions, as required on a case-bycase basis, to provide for and assure compliance with all applicable requirements of CWA and regulations. These shall include conditions under 122.46 (duration of permits), 122.47(a) (schedules of compliance), 122.48 (monitoring). and for EPA permits only 122.47(b) (alternates schedule of compliance) and 122.49 (considerations under Federal law). (b)(1) For a State issued permit, an applicable requirement is a State statutory or regulatory requirement which takes effect prior to final administrative disposition of a permit. For a permit issued by EPA, an applicable requirement is a statutory or regulatory requirement (including any interim final regulation) which takes effect prior to the issuance of the permit (except as provided in $ 124.86(c) for NPDES permits being processed under Subparts E or F of Part 124). Section 124.14 (reopening of comment period) provides a means for reopening EPA permit proceedings at the discretion of the Director where new requirements become effective during the permitting process and are [Sec. 122.43(b)(1)] 131:1021 of sufficient magnitude to make additonal proceedings desirable. For State and EPA administered programs, an applicable requirement is also any requirement which takes effect prior to the modification or revocation and reissuance of a permit, to the extent allowed in $ 122.62. (2) New or reissued permits, and to the extent allowed under § 122.62 modified or revoked and reissued permits, shall incorporate each of the applicable requirements referenced in 122.44 and 122.45. (c) Incorporation. All permit conditions shall be incorporated either expressly or by reference. If incorporated by reference, a specific citation to the applicable regulations or requirements must be given in the permit. 8 122.44 Establishing limitations, standards, and other permit conditions (applicable to State NPDES programs, see @ 123.25). In addition to the conditions established under $ 122.43(a). each NPDES permit shall include conditions meeting the following requirements when applicable. (a) Technology-based effluent limitations and standards based on effluent limitations and standards promulgated under section 301 of CWA or new source performance standards promulgated under section 306 of CWA, on case-by-case effluent limitations determined under section 402(a)(1) of CWA, or on a combination of the two, in accordance with $ 125.3. For new sources or new dischargers, these technology based limitations and standards are subject to the provisions of § 122.29(d) (protection period). (b) Other effluent limitations and standards under sections 301, 302, 303, 307, 318, and 405 of CWA. If any applicable toxic effluent standard or prohibition (including any schedule of compliance specified in such effluent standard or prohibition) is promulgated under section 307(a) of CWA for a toxic pollutant and that standard or prohibition is more stringent than any limitation on the pollutant in the permit, the Director shall institute proceedings under these regulations to modify or revoke and reissue the permit to conform to the toxic effluent standard or prohibition. See also 1 122.41(a). (c) Reopener clause: for any discharger within a primary industry category (see Appendix A), requirements under section 307(a)(2) of CWA as follows: (1) On or before June 30, 1981: (i) If applicable standards or limitations have not yet been promulgated, the permit shall include a condition stating that, if an applicable standard or limitation is promulgated under sections 301(b)(2) (C) and (D), 304(b)(2), and 307(a)(2) and that effluent standard or limitation is more stringent than any effluent limitation in the permit or controls a pollutant not limited in the permit, the permit shall be promptly modified or revoked and reissued to conform to that effluent standard or limitation. (ii) If applicable standards or limitations have been promulgated or approved, the permit shall include those standards or limitations. (If EPA approves existing effluent limitations or decides not to develop new effluent limitations, it will publish a notice in the FEDERAL REGISTER that the limitations are "approved" for the purpose of this regulation.) [122.44(c)(1)(ii) corrected by 50 FR 6940, February 19, 1985] (2) On or after the statutory deadline set forth in sections 301(b)(2) (A), (C), and (E) of CWA, any permit issued shall include effluent limitations to meet the requirements of sections 301(b)(2) (A), (C), (D). (E), (F). whether or not applicable effluent limitations guidelines have been promulgated or approved. These permits need not incorporate the clause required by paragraph (c)(1) of this section. [122.44(c)(2) revised by 49 FR 31842, August 8, 1984] (3) The Director shall promptly modify or revoke and reissue any permit containing the clause required under paragraph (c)(1) of this section to incorporate an applicable effluent standard or limitation under sections 301(b)(2) (C) and (D), 304(b)(2), and 307(a)(2) which is promulgated or approved after the permit is issued if that effluent standard or limitation is more stringent than any effluent limitation in the permit, or controls a pollutant not limited in the permit. (d) Water quality standards and State requirements: any requirements in addition to or more stringent than promulgated effluent limitations guidelines or standards under sections 301, 304, 306, 307, 318, and 405 of CWA necessary to: (1) Achieve water quality standards established under section 303 of CWA; (2) Attain or maintain a specified water quality through water quality related effluent limits established under section 302 of CWA; (3) Conform to the conditions to a State certification under section 401 of the CWA that meets the requirements of § 124.53 when EPA is the permitting authority. If a State certification is stayed by a court of competent jurisdiction or an appropriate State board or agency, EPA shall notify the State that the Agency will deem certification waived unless a finally effective State certification is received within sixty days from the date of the notice. If the State does not forward a finally effective certification within the sixty day period, EPA shall include conditions in the permit that may be necessary to meet EPA's obligation under section 301(b)(1)(C) of the CWA: [122.44(d)(3) revised by 49 FR 38046, September 26, 1984] (4) Conform to applicable water quality requirements under section 401(a)(2) of CWA when the discharge affects a State other than the certifying State: (5) Incorporate any more stringent limitations, treatment standards, or schedule of compliance requirements established under Federal or State law or regulations in accordance with section 301(b)(1)(C) of CWA; (6) Ensure consistency with the requirements of a Water Quality Management plan approved by EPA under section 208(b) of CWA; (7) Incorporate section 403(c) criteria under Part 125, Subpart M. for ocean discharges; (8) Incorporate alternative effluent limitations or standards where warranted by "fundamentally different factors," under 40 CFR Part 125, Subpart D; (9) Incorporate any other appropriate requirements, conditions, or limitations (other than effluent limitations) into a new source permit to the extent allowed by the National Environmental Policy Act, 42 U.S.C. 4321 et seq. and section 511 of the CWA, when EPA is the permit issuing authority. (See § 122.29(c)). [122.44(d)(9) amended by 49 FR 38046, September 26, 1984] (e) Toxic pollutants. Limitations established under paragraphs (a), (b), or (d) of this section, to control pollutants meeting the criteria listed in paragraph (e)(1) of this section. Limitations will be established in accordance with paragraph (e)(2) of this sec- [Sec. 122.44(e)] 131:1022 tion. An explanation of the development of these limitations shall be included in the fact sheet under § 124.56(b)(1)(i). [[122.44(e) corrected by 50 FR 6940, February 19, 1985] (1) Limitations must control all toxic pollutants which: The Director determines (based on information reported in a permit application under § 122.21(g)(7) or (10) or in a notification under $ 122.42(a)(1) or on other information) are or may be discharged at a level greater than the level which can be achieved by the technology-based treatment requirements appropriate to the permittee under $ 125.3(c); or [Former 122.44(e)(1)(i) redesignated as (e)(1) and (e)(1)(ii) deleted by 49 FR 38046, September 26, 1984] (2) The requirement that the limitations control the pollutants meeting the criteria of paragraph (e)(1) of this section will be satisfied by: (i) Limitations on those pollutants: or (ii) Limitations on other pollutants which, in the judgment of the Director, will provide treatment of the pollutants under paragraph (e)(1) of this section to the levels required by & 125.3(c). (f) Notification level. A "notification level" which exceeds the notification level of $ 122.42(a)(1)(i), (ii), or (iii), upon a petition from the permittee or on the Director's initiative. This new notification level may not exceed the level which can be achieved by the technology-based treatment requirements appropriate to the permittee under § 125.3(c) (8) Twenty-four hour reporting: Pollutants for which the permittee must report violations of maximum daily discharge limitations under $ 122.41(1)(6)(ii)(C)(24-hour reporting) shall be listed in the permit. This list shall include any toxic pollutant or hazardous substance, or any pollutant specifically identified 88 the method to control a toxic pollutant or hazardous substance. (h) Durations for permits, as set forth in $ 122.46. (i) Monitoring requirements: In addition to $ 122.48, the following monitoring requirements: (1) To assure compliance with permit limitations, requirements to monitor: (i) The mass (or other measurement specificed in the permit) for each pollutant limited in the permit, (ii) The volume of effluent discharged from each outfall; (iii) Other measurements as appropriate; including pollutants in internal waste streams under § 122.45(i), pollutants in intake water for net limitations under § 122.45(f): frequency, rate of discharge, etc., for noncontinuous discharges under $ 122.45(e); and pollutants subject to notification requirements under § 122.42(a). (iv) According to test procedures approved under 40 CFR Part 136 for the analyses of pollutants having approved methods under that Part, and according to a test procedure specified in the permit for pollutants with no approved methods. (2) Requirements to report monitoring results with a frequency dependent on the nature and effect of the discharge, but in no case less than once a year. (j) Pretreatment program for POTWs: requirements for POTWs to: (1) Identify, in terms of character and volume of pollutants. any significant indirect dischargers into the POTW subject to pretreatment standards under section 307(b) of CWA and 40 CFR Part 403. (2) Submit a local program when required by and in accordance with 40 CFR Part 403 to assure compliance with pretreatment standards to the extent applicable under section 307(b). The local program shall be incorporated into the permit as described in 40 CFR Part 403. The program shall require all indirect dischargers to the POTW to comply with the reporting requirements of 40 CFR Part 403. (k) Best management practices to control or abate the discharge of pollutants when: (1) Authorized under section 304(e) of CWA for the control of toxic pollutants and hazardous substances from ancillary industrial activities; (2) Numeric effluent limitations are infeasible, or (3) The practices are reasonably necessary to achieve effluent limitations and standards or to carry out the purposes and intent of CWA. (1) Reissued permits. (1) Except as provided in paragraph (1)(2) of this section when a permit is renewed or reissued, interim limitations, standards or conditions must be at least as stringent as the final limitations, standards, or conditions in the previous permit (unless the circumstances on which the previous permit was based have materially and substantially changed since the time the permit was issued and would constitute cause for permit modification or revocation and reissuance under $ 122.62). [122.44(1)(1) corrected by 50 FR 6940, February 19, 1985; 50 FR 7912, February 27, 1985] (2) When effluent limitations were imposed under section 402(a)(1) of CWA in a previously issued permit and these limitations are more stringent than the subsequently promulgated effluent guidelines, this paragraph shall apply unless: (i) The discharger has installed the treatment facilities required to meet the effluent limitations in the previous permit and has properly operated and maintained the facilities but has nevertheless been unable to achieve the previous effluent limitations. In this case the limitations in the renewed or reissued permit may reflect the level of pollutant control actually achieved (but shall not be less stringent than required by the subsequently promulgated effluent limitation guidelines): (ii) In the case of an approved State, State law prohibits permit conditions more stringent than an applicable effluent limitation guideline: (iii) The subsequently promulgated effluent guidelines are based on best conventional pollutant control technology (section 301(b)(2)(E) of CWA): (iv) The circumstances on which the previous permit was based have materially and substantially changed since the time the permit was issued and would constitute cause for permit modification or revocation and reissuance under $ 122.62; or (v) There is increased production at the facility which results in significant reduction in treatment efficiency, in which case the permit limitations will be adjusted to reflect any decreased efficiency resulting from increased production and raw waste loads, but in no event shall permit limitations be less stringent than those required by subsequently promulgated standards and limitations. (m) Privately owned treatment works: For a privately owned treatment works. any conditions expressly applicable to any user, as a limited co-permittee, that may be necessary in the permit issued to the treatment works to ensure compliance with applicable requirements under this Part. Alternatively. the Director may issue [Sec. 122.44(m)] 131:1023 separate permits to the treatment works and to its users, or may require a separate permit application from any user. The Director's decision to issue a permit with no conditions applicable to any user, to impose conditions on one or more users. to issue separate permits. or to require separate applications, and the basis for that decision, shall be stated in the fact sheet for the draft permit for the treatment works. (n) Grants: Any conditions imposed in grants made by the Administrator to POWs under sections 201 and 204 of CWA which are reasonably necessary for the achievement of effluent limitations under section 301 of CWA. (o) Sewage sludge: Requirements under section 405 of CWA governing the disposal of sewage sludge from publicly owned treatment works, in accordance with any applicable regulations. (p) Coast Guard: when a permit is issued to a facility that may operate at certain times as a means of transportation over water, a condition that the discharge shall comply with any applicable regulations promulgated by the Secretary of the department in which the Coast Guard is operating. that establish specifications for safe transportation, handling, carriage, and storage of pollutants. (q) Navigation: any conditions that the Secretary of the Army considers necessary to ensure that navigation and anchorage will not be substantially impaired, in accordance with $ 124.58. $ 122.45 Calculating NPDES permit conditions (applicable to State NPDES programs, see $123.25). (a) Outfalls and discharge points. All permit effluent limitations, standards and prohibitions shall be established for each outfall or discharge point of the permitted facility. except as otherwise provided under $ 122.44(j)(2) (BMPs where limitations are infeasible) and paragraph (i) of this section (limitations on internal waste streams). (b) Production-based limitations. (1) In the case of POTWs, permit limitations, standards, or prohibitions shall be calculated based on design flow. [122.45(b)(2) revised by 49 FR 38046, September 26, 1984] (2)(i) Except in the case of POTWs or as provided in paragraph (b)(2)(ii) of this section, calculation of any permit limita- S-734 tions, standards, or prohibitions which are based on production (or other measure of operation) shall be based not upon the designed production capacity but rather upon a reasonable measure of actual production of the facility. For new sources or new dischargers, actual production shall be estimated using projected production. The time period of the measure of production shall correspond to the time period of the calculated permit limitations; for example, monthly production shall be used to calculate average monthly discharge limitations. (ii)(A)(7) The Director may include a condition establishing alternate permit limitations, standards, or prohibitions based upon anticipated increase (not to exceed maximum production capability) or decreased production levels. (2) For the automotive manufacturing industry only, the Regional Administrator shall, and the State Director may establish a condition under paragraph (b)(2)(ii)(A)(7) of this section if the applicant satisfactorily demonstrates to the Director at the time the application is submitted that its actual production, as indicated in paragraph (b)(2)(i) of this section, is substantially below maximum production capability and that there is a reasonable potential for an increase above actual production during the duration of the permit. (B) If the Director establishes permit conditions under paragraph (b)(2)(ii)(A) of this section: (1) The permit shall require the permittee to notify the Director at least two business days prior to a month in which the permittee expects to operate at a level higher than the lowest production level identified in the permit. The notice shall specify the anticipated level and the period during which the permittee expects to operate at the alternate level. If the notice covers more than one month. the notice shall specify the reasons for the anticipated production level increase. New notice of discharge at alternate levels is required to cover a period or production level not covered by prior notice or, if during two consecutive months otherwise covered by a notice, the production level at the permitted facility does not in fact meet the higher level designated in the notice. (2) The permittee shall comply with the limitations, standards. or prohibitions that correspond to the lowest level of production specified in the permit, unless the permittee has notified the Director under paragraph (b)(2)(ii)(B)(1) of this section, in which case the permittee shall comply with the lower of the actual level of production during each month or the level specified in the notice. (3) The permittee shall submit with the DMR the level of production that actually occurred during each month and the limitations, standards, or prohibitions applicable to that level of production. [122.45(c) revised by 49 FR 38046, September 26, 1984] (c) Metals. All permit effluent limitations. standards. or prohibitions for a metal shall be expressed in terms of "total recoverable metal" as defined in 40 CFR Part 136 unless: (1) An applicable effluent standard or limitation has been promulgated under the CWA and specifies the limitation for the metal in the dissolved or valent or total form; or (2) In establishing permit limitations on 8 case-by-case basis under § 125.3, it is necessary to express the limitation on the metal in the dissolved or valent or total form to carry out the provisions of the CWA; or (3) All approved analytical methods for the metal inherently measure only its dissolved form (e.g., hexavalent chromium). (d) Continuous discharges. For continuous discharges all permit effluent limitations, standards, and prohibitions, including those necessary to achieve water quality standards, shall unless impracticable be stated as: (1) Maximum daily and average monthly discharge limitations for all dischargers other than publicly owned treatment works: and (2) Average weekly and average monthly discharge limitations for POTWs. (e) Non-continuous discharges. Discharges which are not continuous, as defined in $ 122.2, shall be particularly described and limited. considering the following factors, as appropriate: (1) Frequency (for example, a batch discharge shall not occur more than once every 3 weeks); (2) Total mass (for example, not to exceed 100 kilograms of zinc and 200 [Sec. 122.45(e)(2)] 131:1024 kilograms of chromium per batch discharge); (3) Maximum rate of discharge of pollutants during the discharge (for example, not to exceed 2 kilograms of zinc per minute); and (4) Prohibition or limitation of specified pollutants by mass, concentration, or other appropriate measure (for example, shall not contain at any time more than 0.1 mg/1 zinc or more than 250 grams (1/4 kilogram) of zinc in any discharge). (f) Mass limitations. (1) All pollutants limited in permits shall have limitations, standards or prohibitions expressed in terms of mass except: (i) For pH, temperature, radiation, or other pollutants which cannot appropriately be expressed by mass; (ii) When applicable standards and limitations are expressed in terms of other units of measurement; or (iii) If in establishing permit limitations on a case-by-case basis under $ 125.3, limitations expressed in terms of mass are infeasible because the mass of the pollutant discharged cannot be related to a measure of operation (for example, discharges of TSS from certain mining operations), and permit conditions ensure that dilution will not be used as a substitute for treatment. (2) Pollutants limited in terms of mass additionally may be limited in terms of other units of measurement, and the permit shall require the permittee to comply with both limitations. [122.45(g) revised by 49 FR 38046, September 26, 1984] (g) Pollutants in intake water. (1) Upon request of the discharger. technology-based effluent limitations or standards shall be adjusted to reflect credit for pollutants in the discharger's intake water if: (i) The applicable effluent limitations and standards contained in 40 CFR Subchapter N specifically provide that they shall be applied on a net basis; or (ii) The discharger demonstrates that the control system it proposes or uses to meet applicable technology-based limitations and standards would, if properly installed and operated, meet the limitations and standards in the absence of pollutants in the intake waters. (2) Credit for generic pollutants such as biochemical oxygen demand (BOD) or total suspended solids (TSS) should not be granted unless the permittee demonstrates that the constituents of the generic measure in the effluent are substantially similar to the constituents of the generic measure in the intake water or unless appropriate additional limits are placed on process water pollutants either at the outfall or eisewhere. (3) Credit shall be granted only to the extent necessary to meet the applicable limitation or standard. up to a maximum value equal to the influent value. Additional monitoring may be necessary to determine eligibility for credits and compliance with permit limits. (4) Credit shall be granted only if the discharger demonstrates that the intake water is drawn from the same body of water into which the discharge is made. The Director may waive this requirement if he finds that no environmental degradation will result. (5) This section does not apply to the discharge of raw water clarifier sludge generated from the treatment of intake water. [122.45(h) deleted and (i) redesignated as (h) by 49 FR 38046, September 26, 1984] (h) Internal waste streams. (1) When permit effluent limitations or standards imposed at the point of discharge are impractical or infeasible, effluent limitations or standards for discharges of pollutants may be imposed on internal waste streams before mixing with other waste streams or cooling water streams. In those instances, the monitoring required by § 122.44(i) shall also be applied to the internal waste streams. (2) Limits on internal waste streams will be imposed only when the fact sheet under I 124.56 sets forth the exceptional circumstances which make such limitations necessary, such as when the final discharge point is inaccessible (for example, under 10 meters of water), the wastes at the point of discharge are so diluted as to make monitoring impracticable, or the interferences among pollutants at the point of discharge would make detection or analysis impracticable. (i) Disposal of pollutants into wells, into POTWs or by land application. Permit limitations and standards shall be calculated as provided in $122.50. [122.45(j) redesignated as (i) by 49 FR 38046. September 26, 1984] (Information collection requirements in paragraph (b) were approved by the Office of Management and Budget under control number 2040-0077). [122.45 amended by 50 FR 4513, January 31, 1985] § 122.46 Duration of permits (applicable to State programs, see § 123.25). (a) NPDES permits shall be effective for a fixed term not to exceed 5 vears. (b) Except as provided in $122.6, the term of a permit shall not be extended by modification beyond the maximum duration specified in this section. [122.46(b) corrected by 50 FR 6940, February 19, 1985] (c) The Director may issue any permit for a duration that is less than the full allowable term under this section. (d) A permit may be issued to expire on or after the statutory deadline set forth in section 301(b)(2) (A). (C), and (E) (July 1. 1964). if the permit includes effluent limitations to meet the requirements of sections 301(b)(2) (A), (C), (D), (E), and (F), whether or not applicable effluent limitations guidelines have been promulgated or approved. [Former 122.46(d) removed and former (e) revised and redesignated as (d) by 49 FR 31842, August 8, 1984] (e) A determination that a particular discharger falls within a given industrial category for purposes of setting a permit expiration date under paragraph (d) of this section is not conclusive as to the discharger's inclusion in that industrial category for any other purposes, and does not prejudice any rights to challenge or change that inclusion at the time that a permit based on that determination. formulated. [Former 122.46 (f) revised and redesignated as (e) by 49 FR 31842, August 8, 1984] 122.47 Schedules of compliance. (a) General (applicable to State programs, see $ 123.25). The permit may, when appropriate, specify a schedule of compliance leading to compliance with CWA and regulations. (1) Time for compliance. Any schedules of compliance under this section shall require compliance as soon as possible, but not later than the applicable statutory deadline under the CWA. (2) The first NPDES permit issued to a new source or a new discharger shall contain a schedule of compliance only when necessary to allow a reasonable opportunity to attain compliance with requirements issued or revised after commencement of construction but less than three years before commencement of the relevant discharge. For recommencing dischargers, a schedule of compliance shall be available only [Sec. 122.47(a)(2)] S-734 131:1025 when necessary to allow a reasonable opportunity to attain compliance with requirements issued or revised less than three years before recommencement of discharge. [122.47(a)(2) revised by 49 FR 38046, September 26, 1984] (3) Interim dates. Except as provided in paragraph (b)(1)(ii), if a permit establishes a schedule of compliance which exceeds 1 year from the date of permit issuance, the schedule shall set forth interim requirements and the dates for their achievement. (i) The time between interim dates shall not exceed 1 year. (ii) If the time necessary for completion of any interim requirement (such as the construction of a control facility) is more than 1 year and is not readily divisible into stages for completion, the permit shall specify interim dates for the submission of reports of progress toward completion of the Interim requirements and indicate a projected completion date. NOTE: Examples of interim requirements include: (a) submit a complete Step 1 construction grant (for POTWs): (b) let a contract for construction of required facilities; (c) commence construction of required facilitles: (d) complete construction of required facilities. (4) Reporting. The permit shall be written to require that no later than 14 days following each interim date and the final date of compliance, the permittee shall notify the Director in writing of its compliance or noncompliance with the interim or final requirements, or submit progress reports if paragraph (a)(3)(ii) is applicable. [122.47(a)(4) corrected by 50 FR 6940. February 19, 1985] (b) Alternative schedules of compliance. An NPDES permit applicant or permittee may cease conducting regulated activities (by terminating of direct discharge for NPDES sources) rather than continuing to operate and meet permit requriements as follows: (1) If the permittee decides to cense conducting regulated activities at a given time within the term of a permit which has already been issued: (i) The permit may be modified to contain a new or additional schedule leading to timely cessation of activities; or (ii) The permittee shall cease conducting permitted activities before non-compliance with any interim or final compliance schedule requirement already specified in the permit. (2) If the decision to cease conducting regulated activities is made before issuance of a permit whose term will include the termination date, the permit shall contain a schedule leading to termination which will ensure timely compliance with applicable requirements no later than the statutory deadline. (3) If the permittee is undecided whether to cease conducting regulated activities, the Director may issue or modify a permit to contain two schedules as follows: (i) Both schedules shall contain an identical interim deadline requiring a final decision on whether to cease conducting regulated activities no later than a date which ensures sufficient time to comply with applicable requirements in a timely manner if the decision is to continue conducting regulated activities; (ii) One schedule shall lead to timely compliance with applicable requirements, no later than the statutory deadline; (iii) The second schedule shall lead to cessation of regulated activities by a date which will ensure timely compliance with applicable requirements no later than the statutory deadline. (iv) Each permit containing two schedules shall include a requirement that after the permittee has made a final decision under paragraph (b)(3)(1) of this section it shall follow the schedule leading to compliance if the decision is to continue conducting regulated activities, and follow the schedule leading to termination if the decision is to cease conducting regulated activities. (4) The applicant's or permittee's decision to cease conducting regulated activities shall be evidenced by a firm public commitment satisfactory to the Director, such as 8 resolution of the board of directors of a corporation. $ 122.48 Requirements for recording and reporting of monitoring results (applicable to State programs, 990 1 123.25). All permits shall specify: (a) Requirements concerning the proper use, maintenance, and installation, when appropriate, of monitoring equipment or methods (including biological monitoring methods when appropriate): (b) Required monitoring including type. intervals, and frequency sufficient to yield data which are representative of the monitored activity including. when appropriate. continuous monitoring; (c) Applicable reporting requirements based upon the impact of the regulated activity and as specified in $ 122.44. Reporting shall be no less frequent than specified in the above regulation. [122.48(c) corrected by 50 FR 6940, February 19. 1985] $ 122.49 Considerations under Federal law. [122.49 introductory paragraph revised by 48 FR 39619. September 1, 1983] The following is a list of Federal laws that may apply to the issuance of permits under these rules. When any of these laws is applicable. its procedures must be followed. When the applicable law requires consideration or adoption of particular permit conditions or requires the denial of 8 permit. those requirements also must be followed. (a) The Wild and Scenic Rivers Act, 16 U.S.C. 1273 et seq. Section 7 of the Act prohibits the Regional Administrator from assisting by license or otherwise the construction of any water resources project that would have a direct, adverse effect on the values for which a national wild and scenic river was established. (b) The National Historic Preservation Act of 1966, 16 U.S.C. 470 et seq. Section 106 of the Act and implementing regulations (36 CFR Part 800) require the Regional Administrator, before issuing a license, to adopt measures when feasible to mitigate potential adverse effects of the licensed activity and properties listed or eligible for listing in the National Register of Historic Places. The Act's requirements are to be implemented in cooperation with State Historic Preservation Officers and upon notice to, and when appropriate, in consultation with the Advisory Council on Historic Preservation. (c) The Endangered Species Act, 16 U.S.C. 1531 et seq. Section 7 of the Act and implementing regulations (50 CFR Part 402) require the Regional Administrator to ensure, in consultation with the Secretary of the Interior or Commerce, that any action authorized by EPA is not likely to jeopardize the continued existence of any endangered or threatened species or adversely affect its critical habitat. (d) The Coastal Zone Management Act. 16 U.S.C. 1451 et seq. Section 307(c) of the Act and implementing regulations [Sec. 122.49(d)] 131:1026 (15 CFR Part 930) prohibit EPA from issuing a permit for an activity affecting land or water use in the coastal zone until the applicant certifies that the proposed activity complies with the State Coastal Zone Management program. and the State or its designated agency concurs with the certification (or the Secretary of Commerce overrides the State's nonconcurrence). (e) The Fish and Wildlife Coordination Act, 16 U.S.C. 661 et seq., requires that the Regional Administrator, before issuing a permit proposing or authorizing the impoundment (with certain exemptions), diversion, or other control or modification of any body of water, consult with the appropriate State agency exercising jurisdiction over wildlife resources to conserve those resources. (f) Executive orders. [Reserved.] (g) The National Environmental Policy Act, 42 U.S.C. 4321 et seq., may require preparation of an Environmental Impact Statement and consideration of EISrelated permit conditions (other than effluent limitations) as provided in § 122.29(c). [122.49(g) amended by 49 FR 38046, September 26, 1984] $ 122.50 Disposal of pollutants Into wells, into publicly owned treatment works or by land application (applicable to State NPDES programs, see $ 123.25). (a) When part of a discharger's process wastewater is not being discharged into waters of the United States or contiguous zone because it is disposed into a well. into a POTW. or by land application thereby reducing the flow or level of pollutants being discharged into waters of the United States, applicable effluent standards and limitations for the discharge in an NPDES permit shall be adjusted to reflect the reduced raw waste resulting from such disposal. Effluent limitations and standards in the permit shall be calculated by one of the following methods: (1) If none of the waste from a particular process is discharged into waters of the United States, and effluent limitations guidelines provide separate allocation for wastes from that process, all allocations for the process shall be eliminated from calculation of permit effluent limitations or standards. [122.50(a)(2) revised by 49 FR 38046, September 26, 1984] (2) In all cases other than those described in paragraph (a)(1) of this section, effluent limitations shall be adjusted by multiplying the effluent limitation derived by applying effluent limitation guidelines to the total waste stream by the amount of wastewater flow to be treated and-discharged into waters of the United States, and dividing the result by the total wastewater flow. Effluent limitations and standards SO calculated may be further adjusted under Part 125, Subpart D to make them more or less stringent if discharges to wells. publicly owned treatment works, or by land application change the character or treatability of the pollutants being discharged to receiving waters. This method may be algebraically expressed as: ExN P= T where P is the permit effluent limitation. E is the limitation derived by applying effluent guidelines to the total wastestream. N is the wastewater flow to be treated and discharged to waters of the United States, and T is the total wastewater flow (b) Paragraph (a) of this section does not apply to the extent that promulgated effluent limitations guidelines: (1) Control concentrations of pollutants discharged but not mass; or (2) Specify a different specific technique for adjusting effluent limitations to account for well injection, land application, or disposal into POTWs. (c) Paragraph (a) of this section does not alter a discharger's obligation to meet any more stringent requirements established under 122.41, 122.42, 122.43, and 122.44. Subpart D-Transfer, Modification, Revocation and Reissuance, and Termination of Permits $ 122.61 Transfer of permits (applicable to State programs, see $ 123.25). (a) Transfers by modification. Except as provided in paragraph (b) of this section, a permit may be transferred by the permittee to a new owner or operator only if the permit has been modified or revoked and reissued (under I 122.62(b)(2)), or a minor modification made (under I 122.63(d)). to identify the new permittee and incorporate such other requirements as may be necessary under CWA. (b) Automatic transfers. As an alternative to transfers under paragraph (a) of this section, any NPDES permit may be automatically transferred to a new permittee if: (1) The current permittee notifies the Director at least 30 days in advance of the proposed transfer date in paragraph (b)(2) of this section; (2) The notice includes a written agreement between the existing and new permittees containing a specific date for transfer of permit responsibility, coverage, and liability between them; and (3) The Director does not notify the existing permittee and the proposed new permittee of his or her intent to modify or revoke and reissue the permit. A modification under the subparagraph may also be a minor modification under $ 122.63. If this notice is not received. the transfer is effective on the date specified in the agreement mentioned in paragraph (b)(2) of this section. $ 122.62 Modification or revocation and reissuance of permits (applicable to State programs, see $ 123.25). When the Director receives any information (for example, inspects the facility, receives information submitted by the permittee as required in the permit (see $ 122.41), receives a request for modification or revocation and reissuance under $ 124.5, or conducts a review of the permit file) he or she may determine whether or not one or more of the causes listed in paragraphs (a) and (b) of this section for modification or revocation and reissuance or both exist. If cause exists. the Director may modify or revoke and reissue the permit accordingly. subject to the limitations of paragraph (c) of this section. and may request an updated application if necessary. When a pertnit is modified, only the conditions subject to modification are reopened. If a permit is revoked and reissued, the entire permit is reopened and subject to revision and the permit is reissued for a new term. See 124.5(c)(2). If cause does not exist under this section or $122.63, the Director shall not modify or revoke and reissue the permit. If a permit modification satisfies the criteria in $122.63 for "minor modifications" the permit may be modified without a draft permit or public review. Otherwise, a draft permit must be prepared and other procedures in Part 124 (or proce- [Sec. 122.62] S-766 131:1027 dures of an approved State program) followed. (a) Causes for modification. The following are causes for modification but not revocation and reissuance of permits except when the permittee requests or agrees. (1) Alterations. There are material and substantial alteration or additions to the permitted facility or activity which occurred after permit issuance which justify the application of permit conditions that are different or absent in the existing permit. [Note. - Certain reconstruction activities may cause the new source provisions of $122.29 to be applicable.] (2) Information. The Director has received new information. Permits may be modified during their terms for this cause only if the information was not available at the time of permit issuance (other than revised regulations, guidance, or test methods) and would have justified the application of different permit conditions at the time of issuance. For NPDES general permits ($122.28) this cause includes any information indicating that cumulative effects on the environment are unacceptable. (3) New regulations. The standards or regulations on which the permit was based have been changed by promulgation of amended standards or regulations or by judicial decision after the permit was issued. Permits may be modified during their terms for this cause only as follows: (i) For promulgation of amended standards or regulations, when: (A) The permit condition requested to be modified was based on a promulgated effluent limitation guildeline, EPA approved or promulgated water quality standards, or the Secondary Treatment Regulations under Part 133; and [122.62(a)(3)[i)(A) amended by 49 FR 37009, September 20, 1984] (B) EPA has revised, withdrawn, or modified that portion of the regulation or effluent limitation guideline on which the permit condition was based, or has approved a State action with regard to a water quality standard on which the permit condition was based; and notice of the action on which the request is based. (C) A permittee requests modification in accordance with $124.5 within ninety (90) days after Federal Register (ii) For judicial decisions, 8 court of competent jurisdiction has remanded and stayed EPA promulgated regulations or effluent limitation guidelines, if the remand and stay concern that portion of the regulations or guidelines on which the permit condition was based and a request is filed by the permittee in accordance with $124.5 within ninety (90) days of judicial remand. (iii) For changes based upon modified State certifications of NPDES permits, see $124.55(b). (4) Compliance schedules. The Director determines good cause exists for modification of a compliance schedule, such as an act of God. strike, flood, or materials shortage or other events over which the permittee has little or no control and for which there is no reasonably available remedy. However, in no case may an NPDES compliance schedule be modified to extend be. yond an applicable CWA statutory deadline. See also $122.63(c) (minor modifications) and paragraph (a)(14) of this section (NPDES innovative technology). (5) When the permittee has filed a request for a variance under CWA section 301(c). 301(g), 301(h), 301(i), 301(k), or 316(a) or for "fundamentally different factors" within the time specified in $$122.21 or 125.27(a). [122.62(a)(5) revised by 49 FR 25981, June 25, 1984] (6) 307(a) toxics. When required to incorporate an applicable 307(a) toxic effluent standard or prohibition (see § 122.44(b)). (?) Respener. When required by the "reopener" conditions in a permit. which are established in the permit under § 122.44(b) (for CWA toxic effluent limitations) or 40 CFR 403.10(d) (pretreatment program), except that when a modification clause established under 40 CFR 403.10(d) relates to the incorporation in a POTW's permit of a pretreatment program approved in accordance with the procedures in 40 CFR 403.11. such modification shall be deemed a minor modification subject to the procedures in $ 122.63. [122.62(a)(7) revised by 51 FR 20430, June 4, 1986] limitations on a net basis under $ 122.45(h). (ii) When a discharger is no longer eligible for net limitations, as provided in § 122.45(h)(1)(ii)(B) (9) Pretreatment As necessary under 40 CFR 403.8(e) (compliance schedule for development of pretreatment program). (10) Failure to notify. Upon failure of an approved State to notify, as required by section 402(b)(3), another State whose waters may be affected by a discharge from the approved State. (11) Non-limited pollutants. When the level of discharge of any pollutant which is not limited in the permit ex. ceeds the level which can be achieved by the technology-based treatment requirements appropriate to the permittee under § 125.3(c). [122.62(a)(12) removed and (13)-(15) redesignated as (12)-(14) by 49 FR 38046, September 26, 1984] (12) Notification levels. To establish a "notification level" as provided in $122.44(f). (13) Compliance schedules. To modify a schedule of compliance to reflect the time lost during construction of an innovative or alternative facility, in the case of a POTW which has received a grant under section 202(a)(3) of CWA for 100% of the costs to modify or replace facilities constructed with a grant for innovative and alternative wastewater technology under section 202(a)(2). In no case shall the compliance schedule be modified to extend beyond an applicable CWA statutory deadline for compliance. (14) When the permit becomes final and effective on or after August 19, 1981, if the permittee shows good cause for the modification, to conform to changes respecting the following regulations issued under the Settlement Agreement dated November 16, 1981, in connection with Natural Resources Defense Council V. EPA, No. 80-1607 and consolidated cases: $122.41(c) and (d). [122.62(a)(15) added by 49 FR 39619, September 1, 1983; redesignated as (14) by 49 FR 38046, September 26, 1984] [New 122.62(a)(15)-(18) added by 49 FR 38046, September 26, 1984] (15) When the permittee's effluent limitations were imposed under section 402(a)(1) of the CWA and the permittee demonstrates operation and maintenance costs that are totally disproportionate from the operation and maintenance costs (8)(i) Net limits. Upon request of a considered in the development of a subsepermittee who qualifies for effluent quently promulgated effluent limitations [Sec. 122.62(a)(15)] 131:1028 guideline, but in no case may the limitations be made less stringent than the subsequent guideline. (16) To correct technical mistakes, such as errors in calculation, or mistaken interpretations of law made in determining permit conditions. (17) When the discharger has installed the treatment technology considered by the permit writer in setting efficent limitations imposed under section 402(a)(1) of the CWA and has properly operated and maintained the facilities but nevertheless has been unable to achieve those effluent limitations. In this case, the limitations in the modified permit may reflect the level of pollutant control actually achieved (but shall not be less stringent than required by a subsequently promulgated effluent limitations guideline). (18) When the permit becomes final and effective on or after March 9. 1982. and the permittee applies for the modification no later than January 24, 1985, if the permittee shows good cause in its request and that it qualifies for the modification, to conform to changes respecting the following regulations issued under that Settlement Agreement: 40 CFR 122.45(b) 40 CFR 122.45(c) 40 CFR 122.50 (b) Causes for modification or revocation and reissuance. The following are causes to modify or, alternatively. revoke and reissue a permit: (1) Cause exists for termination under § 122.64, and the Director determines that modification or revocation and reissuance is appropriate. (2) The Director has received notification (as required in the permit. see $ 122.41(1)(3)) of a proposed transfer of the permit. A permit also may be modified to reflect a transfer after the effective date of an automatic transfer (§ 122.61(b)) but will not be revoked and reissued after the effective date of the transfer except upon the request of the new permittee. (Information collection requirements in paragraph (a) were approved by the Office of Management and Budget under control number 2040-0068) [122.62 amended by 50 FR 4513, January 31. 1985] # 122.63 Minor modifications of permits. Upon the consent of the permittee, the Director may modify a permit to make the corrections or allowances for changes in the permitted activity listed in this section, without following the procedures of Part 124. Any permit modification not processed as a minor modification under this section must be made for cause and with Part 124 draft permit and public notice as required in § 122.62. Minor modifications may only: (a) Correct typographical errors: (b) Require more frequent monitoring or reporting by the permittee; (c) Change an interim compliance date in a schedule of compliance. provided the new date is not more than 120 days after the date specified in the existing permit and does not interfere with attainment of the final compliance date requirement: or (d) Allow for a change in ownership or operational control of a facility where the Director determines that no other change in the permit is necessary, provided that a written agree. ment containing a specific date for transfer of permit responsibility. coverage, and liability between the current and new permittees has been submitted to the Director. (e)(1) Change the construction schedule for a discharger which is a new source. No such change shall affect a discharger's obligation to have all pollution control equipment installed and in operation prior to discharge under § 122.29. (2) Delete a point source outfall when the discharge from that outfall is terminated and does not result in discharge of pollutants from other outfalls except in accordance with permit limits. (f) When the permit becomes final and effective on or after March 9, 1982, conform to changes respecting 122.41(e), 122.41(1). 122.41(m)(4)(i)(B), 122.41(n)(3)(i) and 122.42(a) issued September 26. 1984. [122.63(f) added by 49 FR 38046, September 26, 1984] (9) Incorpanite conditions of à POTW predestment program that has been approved in accordance with the procedures in 40 CFP 403.11 68 enforceable conditions of the POTW's permit. [122.63(g) added by 51 FR 20430, June 4, 1986] § 122.64 Termination of permits (applicable to State programs. see # 123.25). (a) The following are causes for terminating a permit during its term. or for denying a permit renewal application: (1) Noncompliance by the permittee with any condition of the permit: (2) The permittee's failure in the application or during the permit issuance process to disclose fully all relevant facts or the permittee's misrepresentation of any relevant facts at any time: [122.64(a)(2), (3) corrected by 50 FR 6940, February 19, 1985] (3) A determination that the permitted activity endangers human health or the environment and can only be regulated to acceptable leveis by permit modification or termination: or (4) A change in any condition that requires either a temporary or a permanent reduction or elimination of any discharge controlled by the permit (for example, plant closure or termina tion of discharge by connection to a POTW). (b) The Director shall follow the applicable procedures in Part 124 or State procedures in terminating any NPDES permit under this section. APPENDIX A-NPDES PRIMARY INDUSTRY CATEGORIES Any permit issued after June 30, 1981 to dischargers in the following categories shall include effluent limitations and a compliance schedule to meet the requirements of section 301(b)(2)(A). (C). (D). (E) and (F) of CWA. whether or not applicable effluent limitations guidelines have been promulgated. See $$ 122.44 and 122.46. Industry Category Adhesives and sealants Aluminum forming Auto and other laundries Battery manufacturing Coal mining Coll coating Copper forming Electrical and electronic components Electroplating Explosives manufacturing Gum and wood chemicals Foundries Inorganic chemicals manufacturing Iron and steel manufacturing Leather tanning and finishing Mechanical products manufacturing Nonferrous metals manufacturing Ore mining Organic chemicals manufacturing Paint and ink formulation Pesticides Petroleum refining Pharmaceutical preparations Photographic equipment and supplies Plastics processing Plastic and synthetic materials manufacturing Porcelain enameling Printing and publishing Pulp and paper mills Rubber processing Soap and detergent manufacturing Steam electric power plants [Appendix A] S-734 131:1029 Textile Mills Timber Products Processing Appendix B-Criteria for Determining a Concentrated Animal Feeding Operation ($ 122.23) An animal feeding operation is a concentrated animal feeding operation for purposes of $ 122.23 if either of the following criteria are met. (a) More than the numbers of animals specified in any of the following categories are confined: (1) 1,000 slaughter and feeder cattle, (2) 700 mature dairy cattle (whether milked or dry cows). (3) 2,500 swine each weighing over 25 kilograms (approximately 55 pounds). (4) 500 horses, (5) 10,000 sheep or lambs, (6) 55,000 turkeys, (7) 100,000 laying hens or broilers (if the facility has continuous overflow watering), (8) 30,000 laying hens or broilers (If the facility has a liquid manure system). (9) 5,000 ducks, or (10) 1,000 animal units: or (b) More than the following number and types of animals are confined: (1) 300 slaughter or feeder cattle, (2) 200 mature dairy cattle (whether milked or dry cows). (3) 750 swine each weighing over 25 kilograms (approximately 55 pounds). (4) 150 horses, (5) 3,000 sheep or lambs, (6) 16,500 turkeys. (7) 30,000 laying hens or broilers (if the facility has continuous overflow watering), (8) 9,000 laying hens or broilers (if the facility has a liquid manure handling system). (9) 1,500 ducks, or (10) 300 animal units: and either one of the following conditions are met: pollutants are discharged into navigable waters through a manmade ditch. flushing system or other similar man-made device; or pollutants are discharged directly into waters of the United States which originate outside of and pass over, across, or through the facility or otherwise come into direct contact with the animals confined in the operation. Provided, however, that no animal feeding operation is a concentrated animal feeding operation as defined above if such animal feeding operation discharges only in the event of a 25 year. 24-hour storm event. The term "animal unit" means a unit of measurement for any animal feeding operation calculated by adding the following numbers: the number of slaughter and feeder cattle multiplied by 1.0, plus the number of mature dairy cattle multiplied by 1.4, plus the number of swine weighing over 25 kilograms (approximately 55 pounds) multiplied by 0.4, plus the number of sheep multiplied by 0.1, plus the number of horses multiplied by 2.0. The term "manmade" means constructed by man and used for the purpose of transporting wastes. Appendix C-Criteria for Determining a Concentrated Aquatic Animal Production Facility ($ 122.24). (a) Cold water fish species or other cold water aquatic animals in ponds, receways. or other similar structures which discharge at least 30 days per year but does not include: (1) Facilities which produce less than 9,090 harvest weight kilograms (approximately 20,000 pounds) of aquatic animals per year: and (2) Facilities which feed less than 2.272 kilograms (approximately 5,000 pounds) of food during the calendar month of maximum feeding. (b) Warm water fish species or other warm water aquatic animals in ponds, raceways, or other similar structures which discharge at least 30 days per year, but does not include: (1) Closed ponds which discharge only during periods of excess runoff; or (2) Facilities which produce less than 45,454 harvest weight kilograms (approximately 100,000 pounds) of aquatic animals per year. A hatchery, fish farm. or other facility is a concentrated aquatic anrimal production facility for purposes of § 122.24 if it contains, grows. or holds aquatic animals in either of the following categories: "Cold water aquatic animals" include, but are not limited to, the Salmonidae family of fish: e.g., trout and salmon. "Warm water aquatic animals" include, but are not limited to. the Ameiuride, Centrarchidae and Cyprinidae families of fish: e.g., respectively, catfish, sunfish and minnows. Appendix D-NPDES Permit Application Testing Requirements ($ 122.21). TABLE I.-TESTING REQUIREMENTS FOR OR- GANIC Toxic POLLUTANTS BY INDUSTRIAL CATEGORY FOR EXISTING DISCHARGERS GC/MS Fraction Industrial category Base/ Pasti- Volatile Acid neutral cide Adhesives and Seatants Aluminum Forming Auto and Other Laundries Battery Manufacturing Cost Mining Coll Costing Copper Forming GC/MS Fraction Industrial category Base/ Pesti- Volatile Acid neutral cide Electric and Electronic Components Electroplating Explosives Manufacturing Foundries Gum and Wood Chemicals Inorganic Chemicals Manufacturing Iron and Steel Manufacturing Leather Tanning and Finishing Mechanical Products Manufacturing Nonferrous Metals Manufacturing Ore Mining Organic Chemicals Manufacturing Paint and Ink Formulation Pesticides Petroleum Refining Pharmaceutical Preparations Photographic Equipment and Supplies Plastic and Synthetic Materials Manufacturing Plastic Processing Porcelain Enameling Printing and Publishing Pulp and Paper Mills Rubber Processing Soap and Detergent Manufacturing Steam Electric Power Plants Textile Mills Timber Products Processing The toxic pollulants in each fraction are listed in Table N. *Teating required. Table II.-Organic Toxic Pollutants in Each of Four Fractions in Analysis by Gas Chromatography/Mass Spectroscopy (GS/ MS) [Appendix D - Table II corrected by 50 FR 6940, February 19, 1985] Volatiles 1V acrolein 2V acrylonitrile 3V benzene 5V bromoform 6V carbon tetrachloride 7V chlorobenzene 8V chlorodibromomethane 9V chloroethane 10V 2-chloroethylvinyl ether 11V chloroform 12V dichlorobromomethane 14V 1.1-dichloroethane 15V 1.2-dichloroethane 16V 1.1-dichloroethylene 17V 1.2-dichloropropane 18V 1.3-dichloropropylene 19V ethylbenzene [Appendix D) 131:1030 Table II.-Organic Toxic Pollutants in Each of Four Fractions in Analysis by Gas Chromatography/Mess Spectroscopy (GS/ MS) 38B isophorone Volatiles 23V 1.1.2,2-tetrachloroethane 24V tetrachloroethylene 25V toluene 26V 1,2-trans-dichloroethylene , 27V 1.1,1-trichloroethane 28V 1,1,2-trichloroethane 29V trichloroethylene 31V vinyl chloride Acid Compounds 1A 2-chlorophenol 2A 2.4-dichiorophenol 3A 2.4-dimethylphenol 5A 2,4-dinitrophenol 6A 2-nitrophenol 7A 4-nitrophenol 8A p-chloro-m-cresol 9A pentachlorophenol 10A phenol 11A 2,4,6-trichlorophenol Base/Neutral 1B acenaphthene 2B acenaphthylene 3B anthracene 4B benzidine 5B benzo(a)anthracene 6B benzo(a)pyrene 7B 3,4-benzofluoranthene 8B benzo[ghi)perylene 9B benzo(k)fluoranthene 10B bis(2-chloroethoxy)methane 11B bis(2-chloroethyl)ether 12B bis(2-chloroisopropyl)ether 14B 4-bromophenyl phenyl ether 16B 2-chloronaphthalene 17B 4-chlorophenyl phenyl ether 18B chrysene 19B dibenzo(a,h)anthracene 20B 1,2-dichlorobenzene 21B 1,3-dichlorobenzene 24B diethyl phthalate 37B indeno(1.2.3-cd)pyrene 39B napthalene 40B nitrobenzene 41B N-nitrosodimethylamine 42B N-nitrosodi-n-propylamine 20V methyl bromide 21V methyl chloride 44B phenanthrene 22V methylene chloride 45B pyrene Pesticides 46B 1.2,4-trichlorobenzene 1P aldrin 2P alpha-BHC 3P beta-BHC 4P gamma-BHC 5P delta-BHC 6P chiordane 7P 4,4'-DDT 8P 4.4'-DDE 10P dieldrin 4A 4.6-dinitro-o-cresol 11P alpha-endosulfan 12P beta-endosulfan 13P endosulfan sulfate 14P endrin 15P endrin aldehyde 16P 'eptachlor 17P heptachlor epoxide 18P PCB-1242 19P PCB-1254 20P PCB-1221 21P PCB-1232 22P PCB-1248 23P PCB-1260 24P PCB-1016 25P toxaphene Antimony. Total FEDERAL REGULATIONS Nitrogen, Total Organic Oil and Grease Phosphorus, Total Radioactivity Sulfate Sulfide 43B N-nitrosodiphenylamine 9P 4.4'-DDD Sulfite Surfactants Aluminum. Total Barium, Total Boron, Total Cobalt. Total Iron, Total Magnesium, Total Molybdenum. Total Manganese, Total Tin. Total Titanium. Total Table V.-Toxic Pollutants and Hazardous Substances Required To Be Identified by Existing Dischargers if Expected To Be Present [Appendix D - Table V, corrected by 50 FR 6940, February 19, 1985] Toxic Pollutants Asbestos Hazardous Substances Acetaldehyde Allyl alcohol Allyl chloride Amyl acetate Aniline Benzonitrile Table III.-Other Toxic Pollutants: (Met- Benzyl chloride Butyl acetate als, Cyanide) and Total Phenols [Table III head amended by 49 FR 38046, September 26, 1984] Arsenic. Total 13B bis (2-ethylhexyl)phthalate Beryllium, Total Cadmium. Total 15B butylbenzyl phthalate Chromium. Total Copper, Total Lead. Total Mercury, Total Nickel, Total Selenium. Total Silver, Total 22B 1,4-dichlorobenzene Thallium. Total 23B 3,3'-dichlorobenzidine Zinc, Total Cyanide. Total 25B dimethyl phthalate Phenols, Total 26B di-n-butyl phthalate 27B 2.4-dinitrotoluene 28B 2,6-dinitrotoluene 29B di-n-octyl phthalate be Present 30B 1.2-diphenylhydrazine (as azobenzene) 31B fluroranthene Bromide 32B fluorene Chlorine, Total Residual 33B hexachlorobenzene Fluoride Nitrate-Nitrite Fecal Coliform Color 34B hexachlorobutadiene 35B hexachlorocyclopentadiene 36B hexachloroethane Butylamine Captan Carbaryl Carbofuran Carbon disulfide Chlorpyrifos Coumaphos Cresol Crotonaldehyde Cyclobexane 2.4-D (2,4-Dichlorophenoxy acetic acid) Diazinon Dicamba Dichlobenil Dichlone 2.2-Dichloropropionic acid Dichlorvos Diethyl amine Dimethyl amine Table IV-Conventional and Dintrobenzene Nonconventional Pollutants Required To Be Diquat Tested by Existing Dischargers if Expected to Disulfoton Diuron Ethion Epichlorohydrin Ethylene diamine Ethylene dibromide Formaldehyde Furfural [Appendix D) Environment Reporter 90 S-734 131:1031 Table V.-Toxic Pollutants and Hazardous Substances Required To Be Identified by Existing Dischargers if Expected To Be Presented, Contd. Hozordous Substances Guthion Isoprene Isopropanolamine Dodecylbenzenesulfonate Kelthane Kepone Malathion Mercaptodimethur Methoxychlor Methyl mercaptan Methyl methacrylate Methyl purathion Mevinphos Mexacarbate Monoethyl amine Monomethyl amine Naled Napthenic acid Nitrotoluene Parathion Phenolsulfanate Phosgene Propargite Propylene oxide Pyrethrins Quinoline Resorcinol Strontium Strychnine Styrene 2,4,5-T (2,4,5-Trichlorophenoxy acetic acid) TDE (Tetrachlorodiphenylethane) 2,4,5-TP [2-(2.4.5-Trichlorophenoxy) propanoic acid] Trichlorofan Triethanolamine dodecylbenzenesulfonate Triethylamine Trimethylamine Uranium Vanadium Vinyl acetate Xylene Xylenol Zirconium [Note-The Environmental Protection Agency has suspended the requirements of $122.21(g)(7)(ii)(A) and Table 1 of Appendix D as they apply to certain industrial categories. The suspensions are as follows: At 46 FR 2040, Jan. 8. 1981, the Environmental Protection Agency suspended until further notice I 122.21(g)(7)(ii){A} as it applies to coal mines. At 46 FR 22585, Apr. 20, 1981. the Environmental Protection Agency suspended until further notice 122.21(g)(7)(ii)(A) and the corresponding portions of Item V-C of the NPDES application Form 2c as they apply to: 1. Testing and reporting for all four organic fractions in the Greige Mills Subcategory of the Textile Mills industry (Subpart C-Low water use processing of 40 CFR Part 410). and testing and reporting for the pesticide fraction in all other subcategories of this Industrial category. 2 Testing and reporting for the volatile. base/neutral and pesticide fractions in the Base and Precious Metals Subcategory of the Ore Mining and Dressing industry (Subpart B of 40 CFR Part 440), and testing and reporting for all four fractions in all other subcategories of this industrial category. 3. Testing and reporting for all four GC/MS fractions in the Porcelain Enameling industry. At 46 FR 35090, July 1, 1981, the Environmental Protection Agency suspended until further notice $ 122.21(g)(7)(ii)(A) and the corresponding portions of Item V-C of the NPDES application Form 2c as they apply to: 1. Testing and reporting for the pesticide fraction in the Tall Oil Rosin Subcategory (Subpart D) and Rosin-Based Derivatives Subcategory (Subpart F) of the Gum and Wood Chemicals industry (40 CFR Part 454), and testing and reporting for the pesticide and base/netural fractions in all other subcategories of this industrial category. 2. Testing and reporting for the pesticide fraction in the Leather Tanning and Finishing, Paint and Ink Formulation. and Photographic Supplies industrial categories. 3. Testing and reporting for the acid, base/ neutral and pesticide fractions in the Petroleum Refining industrial category. 4. Testing and reporting for the pesticide fraction in the Papergrade Sulfite subcategories (Subparts ] and U) of the Pulp and Paper industry (40 CFR Part 430): testing and reporting for the base/neutral and pesticide fractions in the following subcategories: Deink (Subpart Q). Dissolving Kraft (Subpart F). and Paperboard from Waste Paper (Subpart E); testing and reporting for the volatile. base/neutral and pesticide fractions in the following subcategories: BCT Bleached Kraft (Subpart H). Semi-Chemical (Subparts B and C), and Nonintegrated-Fine Papers (Subpart R): and testing and reporting for the acid, base/ neutral, and pesticide fractions in the following subcategories: Fine Bleached Kraft (Subpart 1). Dissolving Sulfite Pulp (Subpart K). Groundwood-Fine Papers (Subpart 0). Market Bleached Kraft (Subpart G). Tissue from Wastepeper (Subpert T). and Nonintegrated-Tissue Papers (Subpart S). 5. Testing and reporting for the base/- neutral fraction in the Once-Through Cooling Water, Fly Ash and Bottom Ash Transport Water process wastestreams of the Steam Electric Power Plant industrial category. This revision continues these suspensions.] For the duration of the suspensions, therefore, Table I effectively reads: TABLE 1.- TESTING REQUIREMENTS FOR OR- GANIC TOXIC POLLUTANTS BY INDUSTRY CATEGORY GC/MS fraction Industry category Vola- Acid Nev- Pecti. tile tral cide Adhesives and sealants (*) (") (") Aluminum forming (*) (*) (*) Auto and other taundries (*) (*) (*) (*) Battery manufacturing (*) (*) Coal mining Coll coating (*) 33 (*) (") Copper forming (*) (*) (*) Electric and electronic compounds (*) (*) (*) (*) Electroplating (*) (*) (*) Explosives manufacturing (*) (*) Foundries (*) (*) (*) Gum and wood (all subparts except D and F) (") (*) TABLE I-TESTING REQUIREMENTS FOR OR- GANIC Toxic POLLUTANTS BY INDUSTRY CAT- EGORY GC/MS Iraction Industry category Vola. New Pestl. Acid the wel cide Subpart D-tail oil rosin (*) (*) (*) Subpart F-rosin-based derivatives (*) (") (") Inorgenic chemicals manufacturing (*) (*) (") from and steel manufacturing (*) (*) (*) Leather tanning and finishmg (*) (") (*) Mechanical products manutacturing (*) (*) (*) Nonterrous metals manufacturing (*) (*) (*) (*) Ore mining (applies to the base and precious metals/subpart B) (*) Organic chemicals manufacturing (*) (*) (*) (*) Paint and ink formulation (*) (*) (") Pesticides (*) (*) (*) (*) Petroleum refining (") *Testing required The pollutants m each traction are listed in item V-C. GC/MS fraction Industry category Vola- Acid New Pestitile tral cide Pharmaceutical preparations (")' (*) (*) Photographic equipment and supplies (*) (*) (*) Plastic and synthetic materials manufacturing (*) (*) (*) (*) Plastic processing (*) Porcelam enameling Printing and publishing (*) (") (") (*) Pulp and paperboard mills-see footnote* Rubber processing (*) (*) (*) Soep and detergent manufacturing (*) (*) (*) Steam electric power plants (') (") Textle mais (subpart C- Greige Malls are exempt from this table) (*) (*) (") Timber products processing. (*) (") (*) (*) *Pulp and Paperboard Mais GS/MS tractions Subpart # Base/ VOA Acid Pestineu- tral cides A - (*) - (*) 6 - (*) 1 - c - (") - - D - (") - - E (') 2 - (*) F (") (") I - 3 (*) (*) - - H (*) (") I - (*) (") - 1 J (*) (*) (") - K (*) (*) - L (*) (*) - - M (*) (*) - - N (*) (") I - 0 (") (*) I - P (*) (*) I - Q (") (*) - (*) R 1 (*) - 1 $ (*) (*) - (*) T (*) (*) (*) U (*) (*) (*) I "Must test. Do not test unless "reason to believe" it is dis charged. # Subparts are defined in 40 CFR Part 430 D] ANEJO C-7 Subtitulo A Resource Conservation and Recovery Act (RCRA) General Provisions Section 1004 (Definitions) 71:3105 land or water so that such solid waste or hazardous waste or any constituent thereof may enter the environment or be emitted into the air or discharged into any waters, including ground waters. "(4) The term 'Federal agency' means any department, agency, or other instrumentality of the Federal Government, any independent agency or establishment of the Federal Government including any Government corporation, and the Government Printing Office. "(5) The term 'hazardous waste' means a solid waste, or combination of solid wastes, which because of its quantity, concentration, or physical, chemical, or infectious characteristics may- "(A) cause, or significantly contribute to an increase in mortality or an increase in serious irreversible, or incapaciting reversible, illness; or "(B) pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, or disposed of, or otherwise managed. "(6) The term 'hazardous waste generation' means the act or process of producing hazardous waste. "(7) The term 'hazardous waste management' means the systematic control of the collection, source separation, storage, transportation, processing, treatment, recovery, and disposal of hazardous wastes. "(8) For purposes of Federal financial assistance (other than rural communities assistance), the term 'implementation' does not include the acquisition, leasing, construction, or modification of facilities or equipment or the acquisition, leasing, or improvement of land. "(9) The term 'intermunicipal agency' means an agency established by two or more municipalities with responsibility for planning or administration of solid waste. "(10) The term 'interstate agency' means an agency of two or more municipalities in different States, or.an agency established by two or more States, with authority to provide for the management of solid wastes and serving two or more municipalities located in different States. "(1)) The term 'long-term contract' means, when used in relation to solid waste supply, a contract of sufficient duration to assure the viability of a resource recovery fatility (to the extent that such viability depends upon solid waste supply). "(12) The term 'manifest' means the form used for identifying the quantity, composition, and the origin, routing, and destination of hazardous waste during its transportation from the point of generation to the point of disposal. treatment, or storage. "(13) The term 'municipality' (A) means a city, town, borough, county, parish, district, or other public body created by or pursuant to State law, with responsibility for the planning or administration of solid waste management, or an Indian tribe or authorized tribal organization or Alaska Native village or organization, and (B) includes any rural community or unincorporated town or village or any other public entity for which an application for assistance is made by a State or political subdivision thereof. "(14) The term 'open dump' means any facility or site where solid waste is disposed of which is not a sanitary landfill which meets the criteria promulgated under section 4004 and which is not a facility for disposal of hazardous waste. (1004(14) revised by PL 96-482] "(15) The term 'person' means an individual, trust, firm, joint stock company, corporation (including a government corporation), partnership, association, State, municipality, commission, political subdivision of a State, or any interstate body. "(16) The term *procurement item' means any device, good, substance, material, product, or other item whether real or personal property which is the subject of any purchase, barter, or other exchange made to procure such item. "(17) The term "procuring agency' means any Federal agency, or any State agency or agency of a political subdivision of a State which is using appropriated Federal funds for such procurement, or any person contracting with any such agency with respect to work performed under such contract. "(18) The term 'recoverable' refers to the capability and likelihood of being recovered from solid waste for a commercial or industrial use. "(19) The term 'recovered material' means waste material and byproducts which have been recovered or diverted from solid waste, but such terms does not include those materials and byproducts generated from, and commonly reused within, an original manufacturing process. [1004(19) revised by PL 96-482] "(20) The term 'recovered resources' means material or energy recovered from solid waste. "(21) The term 'resource conservation' means reduction of the amounts of solid waste that are generated, reduction of overall resource consumption, and utilization of recovered resources. "(22) The term 'resource recovery' means the recovery of material or energy from solid waste. 71:3106 "(23) The term 'resource recovery system' means a solid waste management system which provides for collection, separation, recycling, and recovery of solid wastes, including disposal of nonrecoverable waste residues. "(24) The term resource recovery facility' means any facility at which solid waste is processed for the purpose of extracting, converting to energy, or otherwise separating and preparing solid waste for reuse. "(25) The term 'regional authority' means the authority established or designated under section 4006. "(26) The term 'sanitary landfill' means a facility for the disposal of solid waste which meets the criteria published under section 4004. "(26A) The term 'sludge' means any solid, semisolid or liquid waste generated from a municipal, commercial, or industrial wastewater treatment plant, water supply treatment plant, or air pollution control facility or any other such waste having similar characteristics and effects. "(27) The term 'solid waste' means any garbage, refuse, sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility and other discarded material, including solid, liquid, semisolid, or contained gaseous material resulting from, industrial, commercial, mining, and agricultural operations, and from community activities, but does not include solid or dissolved material in domestic sewage, or solid or dissolved materials in irrigation return flows or industrial discharges which are point sources subject to permits under section 402 of the Federal Water Pollution Control Act, as amended (86 Stat. 880), or source, special nuclear, or byproduct material as defined by the Atomic Energy Act of 1954, as amended (68 Stat. 923). "(28) The term 'solid waste management' means the systematic administration of activities which provide for the collection, source separation, storage, transportation, transfer, processing, treatment, and disposal of solid waste. "(29) The term solid waste management facility' includes (A) any resource recovery system or component thereof, (B) any system, program, or facility for resource conservation, and (C) any facility for the collection, source separation, storage, transportation, transfer, processing, treatment or disposal of solid wastes including hazardous wastes, whether such facility is associated with facilities generating such wastes or otherwise. "(30) The terms 'solid waste planning,' 'solid waste management,' and 'comprehensive planning' include planning or management respecting resource recovery and resource conservation. "(31) The term 'State' means any of the several States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, and the Commonwealth of the Northern Mariana Islands. "(32) The term 'State authority' means the agency established or designated under section 4007. "(33) The term 'storage,' when used in connection with hazardous waste, means the containment of hazardous waste, either on a temporary basis or for a period of years, in such a manner as not to constitute disposal of such hazardous waste. "(34) The term 'treatment', when used in connection with hazardous waste, means any method, technique, or process, including neutralization, designed to change the physical, chemical, or biological character or composition of any hazardous waste so as to neutralize such waste or so as to render such waste nonhazardous, safer for transport, amenable for recovery, amenable for storage, or reduced in volume. Such term includes any activity or processing designed to change the physical form or chemical composition of hazardous waste so as to render it nonhazardous. "(35) The term 'virgin material' means a raw material, including previously unused copper, aluminum, lead, zinc, iron, or other metal or metal ore, any undeveloped resource that is, or with new technology will become, a source of raw materials. "(36) The term 'used oil' means any oil which has been- "(A) refined from crude oil, "(B) used, and "(C) as a result of such use, contaminated by physical or chemical impurities. "(37) The term 'recycled oil' means any used oil which is reused, following its original use, for any purpose (including the purpose for which the oil was originally used). Such term includes oil which is rerefined, reclaimed, burned, or reprocessed. "(38) The term "lubricating oil' means the fraction of crude oil which is sold for purposes of reducing friction in any industrial or mechanical device. Such term includes re-refined oil. "(39) The term 're-refined oil' means used oil from which the physical and chemical contaminants acquired through previous use have been removed through a refining process. (1004(36) through (39) added by PL 96-463] "Governmental Cooperation "Sec. 1005. (a) Interstate Cooperation.-The provisions of this Act to be carried out by States may be car- ANEJO C-8 Subtítulo C Resource Conservation and Recovery Act (RCRA) Manejo de Desperdicios Peligrosos 71:3112 man shall not affect any procedures for grievances, appeals. or administrative matters in any other provision of this Act, any other provision of law. or any Federal regulation. "(d) TERMINATION-The Office of the Ombudsman shall cease to exist 4 years after the date of enactment of the Hazardous and Solid Waste Amendments of 1984. [2008 added by PL 98-616] "Subtitle C-Hazardous Waste Management "Identification and Listing of Hazardous Waste "Sec. 3001. (a) Criteria for Identification or Listing-Not later than eighteen months after the date of the enactment of this Act, the Administrator shall, after notice and opportunity for public hearing, and after consultation with appropriate Federal and State agencies, develop and promulgate criteria for identifying the characteristics of hazardous waste, and for listing hazardous waste, which should be subject to the provisions of this subtitle, taking into account toxicity, persistence, and degradability in nature, potential for accumulation in tissue, and other related factors such as flammability, corrosiveness, and other hazardous characteristics. Such criteria shall be revised from time to time as may be appropriate. "(b)(1) Identification and Listing.-Not later than eighteen months after the date of enactment of this section, and after notice and opportunity for public hearing, the Administrator shall promulgate regulations identifying the characteristics of hazardous waste, and listing particular hazardous wastes (within the meaning of section 1004(5)), which shall be subject to the provisions of this subtitle. Such regulations shall be based on the criteria promulgated under subsection (a) and shall be revised from time to time thereafter as may be appropriate. The Administrator, in cooperation with the Agency for Toxic Substances and Disease Registry and the National Toxicology Program, shall also identify or list those hazardous wastes which shall be subject to the provisions of this subtide solely because of the presence in such wastes of certain constituents (such as identified carcinogens, mutagens, or teratagens) at levels in excess of levels which endanger human health. [3001(b)(1) designated by PL 96-482; amended by PL 98-616] "(2)(A) Notwithstanding the provisions of paragraph (1) of this subsection, drilling fluids, produced waters, and other wastes associated with the exploration, development, or production of crude oil or natural gas or geothermal energy shall be subject only to exlisting State or Federal regulatory programs in lieu of subtitle C until at least 24 months after the date of enactment of the Solid Waste Disposal Act Amendments of 1980 and after promulgation of the regulations in accordance with subparagraphs (B) and (C) of this paragraph. It is the sense of the Congress that such State or Federal programs should include, for waste disposal sites which are to be closed, provisions requiring at least the following: "(i) The identification through surveying, platting, or other measures, together with recordation of such information on the public record, so as to assure that the location where such wastes are disposed of can be located in the future; except however, that no such surveying, platting, or other measure identifying the location of a disposal site for drilling fluids and associated wastes shall be required if the distance from the disposal site to the surveyed or platted location to the associated well is less than two hundred lineal feet; and "(ii) A chemical and physical analysis of a produced water and a composition of a drilling fluid suspected to contain a hazardous material, with such information to be acquired prior to closure and to be placed on the public record. "(B) Not later than six months after completion and submission of the study required by section 8002(m) of this Act, the Administrator shall, after public hearings and opportunity for comment, determine either to promulgate regulations under this subtitle for drilling fluids, produced waters, and other wastes associated with the exploration, development, or production of crude oil or natural gas or geothermal energy or that such regulations are unwarranted. The Administrator shall publish his decision in the Federal Register accompanied by an explanation and justification of the reasons for it. In making the decision under this paragraph, the Administrator shall utilize the information developed or accumulated pursuant to the study required under section 8002(m). "(C) The Administrator shall transmit his decision, along with any regulations, if necessary, to both Houses of Congress. Such regulations shall take effect only when authorized by Act of Congress. [3001(b)(2) added by PL 96-482) "(3)(A) Notwithstanding the provisions of paragraph (1) of this subsection, each waste listed below shall, except as provided in subparagraph (B) of this paragraph, be subject only to regulation under other applicable provisions of Federal or State law in lieu of this subtitle until at least six months after the date of submission of the applicable study required to be conducted 71:3113 under subsection (f), (n), (o), or (p) of section 8002 of this Act and after promulgation of regulations in accordance with subparagraph (C) of this paragraph: "(i) Fly ash waste, bottom ash waste, slag waste, and flue gas emission control waste generated primarily from the combustion of coal or other fossil fuels. "(ii) Solid waste from the extraction, beneficiation, and processing of ores and minerals, including phosphate rock and overburden from the mining of uranium ore. "(iii) Cement kiln dust waste. "(B)(i) Owners and operators of disposal sites for wastes listed in subparagraph (A) may be required by the Administrator, through regulations prescribed under authority of section 2002 of this Act- "(I) as to disposal sites for such wastes which are to be closed, to identify the locations of such sites through surveying, platting, or other measures, together with recordation of such information on the public record, to assure that the locations where such wastes are disposed of are known and can be located in the future, and "(II) to provide chemical and physical analysis and composition of such wastes, based on available information, to be placed on the public record. "(ii)(1) In conducting any study under subsection (f), (n), (o), or (p), of section 8002 of this Act, any officer, employee, or authorized representative of the Environmental Protection Agency, duly designated by the Administrator, is authorized, at reasonable times and as reasonably necessary for the purposes of such study, to enter any establishment where any waste subject to such study is generated, stored, treated, disposed of, or transported from; to inspect, take samples, and conduct monitoring and testing: and to have access to and copy records relating to such waste. Each such inspection shall be commenced and completed with reasonable promptness. If the officer, employee, or authorized representative obtains any samples prior to leaving the premises, he shall give to the owner, operator, or agent in charge a receipt describing the sample obtained and if requested a portion of each such sample equal in volume or weight to the portion retained. If any analysis is made of such samples, or monitoring and testing performed, a copy of the results shall be furnished promptly to the owner, operator, or agent in charge. "(II) Any records, reports, or information obtained from any person under subclause (I) shall be available to the public, except that upon a showing satisfactory to the Administrator by any person that records, reports, or information, or particular part thereof, to which the Administrator has access under this subparagraph if made public, would divulge information entitled to protection under section 1905 of title 18 of the United S-722 States Code, the Administrator shall consider such information or particular portion thereof confidential in accordance with the purposes of that section, except that such record, report, document, or information may be disclosed to other officers, employees, or authorized representatives of the United States concerned with carrying out this Act. Any person not subject to the provisions of section 1905 of title 18 of the United States Code who knowingly and willfully divulges or discloses any information entitled to protection under this subparagraph shall, upon conviction, be subject to a fine of not more than $5,000 or to imprisonment not to exceed one year, or both. "(iii) The Administrator may prescribe regulations, under the authority of this Act, to prevent radiation exposure which presents an unreasonable risk to human health from the use in construction or land reclamation (with or without revegetation) of (1) solid waste from the extraction, beneficiation, and processing of phosphate rock or (11) overburden from the mining of uranium ore. "(iv) Whenever on the basis of any information the Administrator determines that any person is in violation of any requirement of this subparagraph, the Administrator shall give notice to the violator of his failure to comply with such requirement. If such violation extends beyond the thirtieth day after the Administrator's notification, the Administrator may issue an order requiring compliance within a specified time period or the Administrator may commence a civil action in the United States district court in the district in which the violation occurred for appropriate relief, including a temporary or permanent injunction. "(C) Not later than six months after the date of submission of the applicable study required to be conducted under subsection (f), (n), (o), or (p), of section 8002 of this Act, the Administrator shall, after public hearings and opportunity for comment, either determine to promulgate regulations under this subtitle for each waste listed in subparagraph (A) of this paragraph or determine that such regulations are, unwarranted. The Administrator shall publish his determination, which shall be based on information developed or accumulated pursuant to such study, public hearings, and comment, in the Federal Register accompanied by an explanation and justification of the reasons for it. [3001(b)(3) added by PL 96-482] "(c) Petition by State Governor.-At any time after the date eighteen months after the enactment of this title, the Governor of any State may petition the Administrator to identify or list a material as a hazardous waste. The Administrator shall act upon such petition 71:3114 within ninety days following his receipt thereof and shall notify the Governor of such action. If the Administrator denies such petition because of financial considerations, in providing such notice to the Governor he shall include a statement concerning such considerations. [3001(d) added by PL 98-616] "(d) SMALL QUANTITY GENERATOR WASTE-(1) By March 31, 1986, the Administrator shall promulgate standards under sections 3002, 3003, and 3004 for hazardous waste generated by a generator in a total quantity of hazardous waste greater than one hundred kilograms but less than one thousand kilograms during a calendar month. "(2) The standards referred to in paragraph (1), including stand. ards applicable to the legitimate use, reuse, recycling, and reclamstion of such wastes, may vary from the standards applicable to hazardous waste generated by larger quantity generators, but such standards shall be sufficient to protect human health and the environment. "(3) Not later than two hundred and seventy days after the enactment of the Hazardous and Solid Waste Amendments of 1984 any hazardous waste which is part of a total quantity generated by a generator generating greater than one hundred kilograms but less than one thousand kilograms during one calendar month and which is shipped off the premises on which such waste is generated shall be accompanied by & copy of the Environmental Protection Agency Uniform Hazardous Waste Manifest form signed by the generator. This form shall contain the following information: "(A) the name and address of the generator of the waste; "(B) the United States Department of Transportation description of the waste, including the proper shipping name, hazard class, and identification number (UN/NA), if applicable; "(C) the number and type of containers; "(D) the quantity of waste being transported; and "(E) the name and address of the facility designated to receive the waste. If subparagraph (B) is not applicable, in lieu of the description referred to in such subparagraph (B), the form shall contain the Environmental Protection Agency identification number. or a generic description of the waste, or a description of the waste by harardous waste characteristic. Additional requirements related to the manifest form shall apply only if determined necessary by the Administrator to protect human health and the environment. "(4) The Administrator's responsibility under this subtitle to protact human health and the environment may require the promulgation of standards under this subtitle for hazardous wastes which are generated by any generator who does not generate more than one hundred kilograms of hazardous waste in a calendar month. "(5) Until the effective date of standards required to be promulgated under paragraph (1), any hazardous waste identified or listed under section 3001 generated By any generator during any calendar month in a total quantity greater than one hundred kilograms but lass than one thousand kilograms, which is not treated. stored. or disposed of at a hazardous waste treatment. storage, or disposal facility with a permit under section 3005, shall be disposed of only in a facility which is permitted, licensed, or registered by a State to manage municipal or industrial solid waste. "(6) Standards promulgated as provided in paragraph (1) shall. at a minimum, require that all treatment. storage, or disposal of hazardous wastes generated by generators referred to in paragraph (1) shall occur at a facility with interim status or a permit under this subtitle, except that onsite storage of hazardous waste generated by a generator generating a total quantity of hazardous waste greater than one hundred kilograms. but less than one thousand kilograms during a calendar month, may occur without the requirement of a permit for up to one hundred and eighty days. Such onsite storage may occur without the requirement of a permit for not more than six thousand kilograms for up to two hundred and seventy days if such generator must ship or haul such waste over two hundred miles. "(7XA) Nothing in this subsection shall be construed to affect or impair the validity of regulations promulgated by the Secretary of Transportation pursuant to the Hazardous Materials Transportetion Act "(B) Nothing in this subsection shall be construed to affect, modify. or render invalid any requirements in regulations promulgated prior to January 1, 1983 applicable to any acutely hazardous waste identified or listed under section 3001 which is generated by any generator during any calendar month in a total quantity less than one thousand kilograms. "(8) Effective March 31, 1986, unless the Administrator promulgates standards as provided in paragraph (1) of this subsection prior to such date, hazardous waste generated by any generator in a total quantity greater than one hundred kilograms but less than one thousand kilograms during a calendar month shall be subject to the following requirements until the standards referred to in paragraph (1) of this subsection have become effective: "(A) the notice requirements of paragraph (3) of this subsection shall apply and in addition. the information provided in the form shall include the name of the waste transporters and the name and address of the facility designated to receive the waste; "(B) except in the case of the onsite storage referred to in paragraph (6) of this subsection, the treatment, storage. or disposal of such waste shall occur at a facility with interim status or a permit under this subtitle; "(C) generators of such waste shall file manifest exception reports as required of generators producing greater amounts of hazardous waste per month except that such reports shall be filed by January 31, for any waste shipment occurring in the last half of the preceding calendar year, and by July 31, for any waste shipment occurring in the first half of the calendar year; and "(D) generators of such waste shall retain for three years a copy of the manifest signed by the designated facility that has received the waste. Nothing in this paragraph shall be construed as a determination of the standards appropriate under paragraph (1). "(9) The last sentence of section 3010(b) shall not apply to regulations promulgated under this subsection. [Editor's note: Sections 21(b) through (f) of PL 98- 616 provides the following concerning responsibilities of the EPA Administrator: * "(b) The Administrator of the Environmental Protection Agency shall undertake activities to inform and educate the waste generators of their responsibilities under the amendments made by this section during the period within thirty months after the enactment of the Hazardous and Solid Waste Amendments of 1984 to help assure compliance. (c) The Administrator of the Environmental Protection Agency in cooperation with the States shall conduct a study of hasardous waste identified or listed under section 3001 of the Solid Waste Disposal Act which is generated by individual generators in total quantities for each generator during any calendar month of less than one thousand kilograms. The Administrator may require from such generators information as may be necessary to conduct the study. Such study shall include a characterization of the number and type * Section 2(j) of PL 98-616 provides: -0) There is authorized to be appropriated for purposes of section 221(b) of this Act $500,000 for each of the fiscal years 1985 through 1987. of such generators, the quantity and characteristics of hazardous waste generated by such generators, State requirements applicable to such generators, the individual and industry waste management practices of such generators, the potential costs of modifying those practices and the impact of such modifications on national treatment and disposal facility capacity, and the threat to human health and the environment and the employees of transporters or others involved in solid waste management posed by such hazardous wastes or such management practices. Such study shall be submitted to the Congress not later than April 1, 1985. (d) The Administrator of the Environmental Protection Agency shall cause to be studied the existing manifest system for hazardous wastes as it applies to small quantity generators and recommend whether the current system shall be retained or whether a new system should be introduced. The study shall include an analysis of the cost versus the benefits of the system studied as well as an analysis of the case of retrieving and collating information and identifying a given substance. Finally, any new proposal shall include a list of those standards that are necessary to protect human health and the environment. Such study shall be submitted to the Congress not later than April 1. 1987. (a) The Administrator of the Environmental Protection Agency, in conjunction with the Secretary of Transportation. shall prepare and submit to the Congress a report on the feasibility. of easing the administrative burden on small quantity generators, increasing compliance with statutory and regulatory requirements, and simplifying enforcement efforts through a program of licensing hazardous waste transporters to assume the responsibilities of small quantity generators relating to the preparation of manifests and associated recordkeeping and reporting requirements. The report shall examine the appropriate licensing requirements under such a program including the need for financial assurances by licensed transporters and shall make recommendations on provisions and requirements for such a program including the appropriate division of responsibilities between the Department of Transportation and the Environmental Protection Administration. Such report shall be submitted to the Congress not later than April 1. 1987. (fx1) The Administrator of the Environmental Protection Agency shall, in consultation with the Secretary of Education, the States, and appropriate educational associations, conduct a comprehensive study of problems associated with the accumulation. storage and disposal of hazardous wastes from educational institutions The study shall include an investigation of the feasibility and availability of environmentally sound methods for the treatment, storage or disposal of hazardous waste from such institutions, taking into account the types and quantities of such waste which are generated by these institutions, and the nonprofit nature of these institutions. (2) The Administrator shall submit a report to the Congress containing the findings of the study carried out under paragraph (1) not later than April 1. 1987. (3) For purposes of this subsection- (A) the term "hazardous waste" means hazardous waste which is listed or identified under Section 3001 of the Solid Waste Disposal Act; (B) the term "educational institution" includes, but shall not be limited to, (i) secondary schools as defined in section 198(a)(7) of the Elementary and Secondary Education Act of 1965; and (ii) institutions of higher education as defined in enction 1201(a) of the Higher Education Act of 1965. [3001(e) - (i) added by PL 98-616] "(s) SPECIFIED WASTES-(1) Not later than 6 months after the date of enactment of the Hazardous and Solid Waste Amendments of 1984, the Administrator shall, where appropriate, list under subsection (b)(1), additional wastes containing chlorinated dioxins or chlorinated-dibenzofurans. Not later than one year after the date of enactment of the Hazardous and Solid Waste Amendments of 1984, the Administrator shall. where appropriate, list under subsection (b)(1) wastes containing remaining halogenated dioxins and halogeaated-dibenzofurans. "(2) Not later than fifteen months after the date of enactment of the Hazardous and Solid Waste Amendments of 1984, the Administrator shall make a determination of whether or not to list under subsection (b)(1) the following wastes: Chlorinated Aliphatics. Dioxin, Dimethyl Hydrazine, TDI (toluene diisocyanate), Carbamates, Bromacil, Linuron. Organo-bromines, solvents, refining wastes, chlorinated aromatics, dyes and pigments, inorganic chemical industry wastes, lithium batteries, coke byproducts, paint production wastes, and coal slurry pipeline effluent. "(f) DELISTING PROCEDURES-(1) When evaluating a petition to exclude 8 waste generated at a particular facility from listing under this section, the Administrator shall consider factors (including additional constituents) other than those for which the waste was listed if the Administrator has 6 reasonable basis to believe that such additional factors could cause the waste to be a hazardous waste. The Administrator shall provide notice and opportunity for comment on these additional factors before granting or denying such petition. "(2XA) To the maximum extent practicable the Administrator shall publish in the Federal Register a proposal to grant or deny a petition referred to in paragraph (1) within twelve months after receiving a complete application to exclude a waste generated at a particular facility from being regulated as a hazardous waste and shall grant or deny such a petition within twenty-four months after receiving a complete application. "(B) The temporary granting of such a petition prior to the enactment of the Hazardous and Solid Waste Amendments of 1984 without the opportunity for public comment and the full consideration of such comments shall not continue for more than twentyfour months after the date of enectment of the Hazardous and Solid Waste Amendments of 1984. If a final decision to grant or deny such a petition has not been promulgated after notice and opportunity for public comment within the time limit prescribed by the preceding sentence, any such temporary granting of such petition shall cease to be in effect. "(g) EP TOXICITY-Not later than twenty-eight months after the date of enactment of the Hazardous and Solid Waste Amendments of 1984 the Administrator shall examine the deficiencies of the extraction procedure toxicity characteristic as a predictor of the leaching potential of wastes and make changes in the extraction procedure toxicity characteristic. including changes in the leaching media, as are necessary to insure that it accurately predicts the leaching potential of wastes which pose a threat to human health and the environment when mismanaged. "(h) ADDITIONAL CHARACTERISTICS-Not later than two years after the date of enactment of the Hazardous and Solid Waste Amendments of 1984, the Administrator shall promulgate regulations under this section identifying additional characteristics of hazardour waste, including measures or indicators of toxicity. "(i) CLARIFICATION OF HOUSEHOLD WASTE EXCLUSION.-A resource recovery facility recovering energy from the mass burning of municipal solid waste shall not be deemed to be treating. storing, disposing of, or otherwise managing hazardous wastes for the purposes of regulation under this subtitle, if "(1) such facility- "(A) receives and burns only-- "Wi) household waste (from single and multiple dwellings, hotels, motels, and other residential sources), and (ii) solid waste from commercial or industrial sources that does not contain hazardous waste identified or listed under this section, and "(B) does not accept hazardous wastes identified or listed under this section, and "(2) the owner or operator of such facility has established contractual requirements or other appropriate notification or inspection procedures to assure that hazardous wastes are not received at or burned in such facility. "Standards Applicable to Generators of Hazardous Waste "Sec. 3002. (a) In General - Not later than eighteen months after the date of the enactment of this section, and after notice and opportunity for public hearings and after consultation with appropriate Federal and State agencies, the Administrator shall promulgate regulations establishing such standards, applicable to generators of Published by THE BUREAU OF NATIONAL AFFAIRS. INC.. Washington, D.C. 20037 hazardous waste identified or listed under this subtitle, as may be necessary to protect human health and the environment. Such standards shall establish requirements respecting- [3002(a) designated by PL 98-616] "Standards Applicable to Transporters of Hazardous Waste "Sec. 3003. (a) Standards.-Not later than eighteen months after the date of enactment of this section, and after opportunity for public hearings the Administrator, after consultation with the Secretary of Transportation and the States, shall promulgate regulations establishing such standards, applicable to transporters of hazardous waste identified or listed under this subtitle, as may be necessary to protect human health and the environment. Such standards shall include but need not be limited 10 requirements respecting- "(1) recordkeeping concerning such hazardous waste transported, and their source and delivery points; "(2) transportation of such waste only if properly labeled; "(3) compliance with the manifest system referred to in section 3002(5); and "(4) transportation of all such hazardous waste only to the hazardous waste treatment, storage, or disposal facilities which the shipper designates on the manifest form to be a facility holding a permit issued under this subtitle, or pursuant to title I of the Marine Protection, Research, and Sanctuaries act (86 Stat. 1052). "(1) recordkeeping practices that accurately identify the quantities of such hazardous waste generated, the constituents thereof which are significant in quantity or in potential harm to human health or the environment, and the disposition of such wastes; "(2) labeling practices for any containers used for the storage, transport, or disposal of such hazardous waste such as will identify accurately such waste; "(3) use of appropriate containers for such hazardous waste; "(4) furnishing of information on the general chemical composition of such hazardous waste to persons transporting, treating, storing, or disposing of such wastes; - "(A) the quantities and nature of hazardous waste identified or listed under this subtitle that be has generated during the year; "(B) the disposition of all hazardous waste reported under subparagraph (A); "(C) the efforts undertaken during the year to reduce the volume and toxicity of waste generated: and "(D) the changes in volume and toxicity of waste actually achieved during the year in question in comparison with previous years, to the extent such information is available for years prior to enactment of the Hazardous and Solid Waste Amendments of 1984. [3002(a)(6) revised by PL 98-616] "(b) WASTE MINIMIZATION-Efective September 1, 1985, the manifest required by subsection (a)(5) shall contain a certification by the generator that- "(1) the generator of the hazardous waste has a program in place to reduce the volume or quantity and toxicity of such waste to the degree determined by the generator to be economically practicable, and "(2) the proposed method of treatment. storage. or dispose. - that practicable method currently available to the generator which minimizes the present and future threat to human health and the environment. "(5) use of a manifiest system and any other reasonable means necessary to assure that all such hazardous waste generated is designated for treatment, storage, or disposal in, and arrives at treatment, storage, or disposal facilities (other than facilities on the premises where the waste is generated) for which a permit has been issued as provided in this subtitle, or pursuant to title I of the Marine Protection, Research, and Sanctuaries Act (86 Stat. 1052); and "(6) submission of reports to the Administrator (or the State agency in any case in which such agency carries out a permit program pursuant to this subtitle) at least once every two years, setting out- "(c) FUEL FROM HAZARDOUS WASTE-Not later than two years after the date of anactment of the Hazardous and Solid Waste Amendments of 1964, and after opportunity for public hearing, the Administrator shall promulgate regulations establishing standards, applicable to transporters of fuel produced (1) from any hazardous waste identified or listed under section 3001, or (2) from any hazardous waste identified or listed under section 3001 and any other material. as may be necessary to protect human health and the environment. Such standards may include any of the requirements set forth in paragraphs (1) through (4) of subsection (a) as may be appropriate. [3003(c) added by PL 98-616] "Standards Applicable to Owners and Operators of Hazardous Waste Treatment, Storage, and Disposal Facilities "(b) Coordination With Regulations of Secretary of Transportation.-In case of any hazardous waste identified or listed under this subtitle which is subject to the Hazardous Materials Transportation Act (88 Stat. 2156; 49 U.S.C. 1801 and following), the regulations promulgated by the Administrator under this section shall be consistent with the requirements of such Act and the regulations thereunder. The Administrator is authorized to make recommendations to the Secretary of Transportation respecting the regulations of such hazardous waste under the Hazardous Materials Transportation Act and for addition of materials to be covered by uch Act. "Sec. 3004. (a) In General - Not later than eighteen months after the date of enactment of this section, and [3002(b) added by PL 98-616] 713117 after opportunity for public hearings and after consultation with appropriate Federal and State agencies, the Administrator shall promulgate regulations establishing such performance standards, applicable to owners and operators of facilities for the treatment, storage, or disposal of hazardous waste identified or listed under this subtitle, as may be necessary to protect human health and the environment. In establishing such standards the Administrator shall, where appropriate, distinguish in such standards between requirements appropriate for new facilities and for facilities in existence on the date of promulgation of such regulations. Such standards shall include, but need not be limited to, requirements respecting- [3004 amended by PL 96-482; (a) designated by PL 98- 616] "(1) maintaining records of all hazardous wastes identified or listed under this title which is treated, stored, or disposed of, as the case may be, and the manner in which such wastes were treated, stored, or disposed of; "(2) satisfactory reporting, monitoring, and inspection and compliance with the manifest system referred to in section 3002(5); "(3) treatment, storage, or disposal of all such waste received by the facility pursuant to such operating methods, techniques, and practices as may be satisfactory to the Administrator; "(4) the location, design, and construction of such hazardous waste treatment, disposal, or storage facilities; "(5) contingency plans for effective action to minimize unanticipated damage from any treatment, storage, or disposal of any such hazardous waste; "(6) the maintenance of operation of such facilities and requiring such additional qualifications as to ownership, continuity of operation, training for personnel, and financial responsibility including financial responsibility for corrective action) as may be necessary or desirable; and 1 (3004(a)(6) amended by PL 98-616] "(7) compliance with the requirements of section 3005 respecting permits for treatment, storage, or disposal. No private entity shall be precluded by reason of criteria established under paragraph (6) from the ownership or operation of facilities providing hazardous waste treatment, storage, or disposal services where such entity can provide assurances of financial responsibility and continuity of operation consistent with the degree and duration of risks associated with the treatment, storage, or disposal of specified hazardous waste. [3004(b) - (x) added by PL 98-616] "(b) SALT DOME FORMATIONS. SALT BED FORMATIONS. UNDER- GROUND MINES AND CAVES.-(1) Effective on the date of the enactment of the Hazardous and Solid Waste Amendments of 1984. the placement of any noncontainerized or bulk liquid hazardous waste in any salt dome formation, salt bed formation, underground mine, or cave is prohibited until such time as- "(A) the Administrator has determined, after notice and opportunity for hearings on the record in the affected areas, that such placement is protective of human health and the environment; "(B) the Administrator has promulgated performance and permitting standards for such facilities under this subtitle. and; "(C) a permit has been issued under section 8005(c) for the facility concerned. "(2) Effective on the date of enactment of the Hazardous and Solid Waste Amendments of 1984. the placement of any hazardous waste other than a hazardous waste referred to in paragraph (1) in a salt dome formation, salt bed formation, underground mine, or cave is prohibited until such time as a permit has been issued under section 3005(c) for the facility concerned. "(3) No determination made by the Administrator under subsection (d), (e), or (g) of this section regarding any hazardous waste to which such subsection (d), (e), or (g) applies shall affect the prohibition contained in paragraph (1) or (2) of this subsection. "(4) Nothing in this subsection shall apply to the Department of Energy Waste Isolation Pilot Project in New Mexico. "(c) Liquins IN LANDFILLS-(1) Effective 6 months after the date of the enactment of the Hazardous and Solid Waste Amendments of 1984, the placement of bulk or noncontainerized liquid hazardous waste or free liquids contained in hazardous waste (whether or not absorbents have been added) in any landfill is prohibited. Prior to such date the requirements (as in effect on April 30, 1983) promulgated under this section by the Administrator regarding liquid hazardous waste shall remain in force and effect to the extent such requirements are applicable to the placement of bulk or noncontainerized liquid hazardous waste, or free liquids contained in hazardous waste, in landfills. "(2) Not later than fifteen months after the date of the enactment of the Hazardous and Solid Waste Amendments of 1984, the Administrator shall promulgate final regulations which- "(A) minimize the disposal of containerized liquid hazardous waste in landfills. and "(B) minimize the presence of free liquids in containerized hazardous waste to be disposed of in landfills. Such regulations shall also prohibit the disposal in landfills of liquids that have been absorbed in materials that biodegrade or that release liquids when compressed as might occur during routine landfill operations. Prior to the date on which such final regulations take effect, the requirements (as in effect on April 30, 19831 promulgated under this section by the Administrator shall remain in force and effect to the extent such requirements are applicable to the disposal of containerized liquid hazardous waste, or free liquids contained in hazardous waste, in landfills. "(3) Effective twelve months after the date of the enactment of the Hazardous and Solid Waste Amendments of 1964, the placement of any liquid which is not a hazardous waste in a landfill for which a permit is required under section 3005(c) or which in operating pursuant to interim status granted under section 8005(e) is prohibsted unless the owner or operator of such landfill demonstrates to the Administrator, or the Administrator determines, that- "(A) the only reasonably available alternative to the placement in such landfill is placement in . landfill or unlined surface impoundment, whether or not permitted under section 3005(c) or operating pursuant to interim status under section 3005(e). which contains, or may reasonably be anticipated to contain, hazardous waste; and "(B) placement in such owner or operator's landfill will not present a risk of contamination of any underground source of drinking water. As used in subparagraph (B). the term 'underground source of drinking water' has the same meaning as provided in regulations under the Safe Drinking Water Act (title XIV of the Public Health Service Act). 71:3118 "(4) No determination made by the Administrator under subsection (d), (e), or (g) of this section regarding any hazardous waste to which such subsection (d), (e). or (g) applies shall affect the prohibition contained in paragraph (1) of this subsection. "(d) PROMISITIONS ON LAND DISPOSAL OF SPECIFIED WASTES-(1) Effective 32 months after the enactment of the Hazardous and Solid Waste Amendments of 1984 (except as provided in subsection (f) with respect to underground injection into deep injection wells), the land disposal of the hazardous wastes referred to in paragraph (2) is prohibited unless the Administrator determines the prohibition on one or more methods of land disposal of such waste is not required in order to protect human health and the environment for as long as the waste remains hazardous, taking into account- "(A) the long-term uncertainties associated with land disposal, "(B) the goal of managing hazardous waste in an appropriate manner in the first instance, and "(C) the persistence. toxicity, mobility, and propensity to bioaccumulate of such hazardous wastes and their hazardous constituents. For the purposes of this paragraph, a method of land disposal may not be determined to be protective of human health and the environment for a hazardous waste referred to in paragraph (2) (other than a hazardous waste which has complied with the pretreatment regulations promulgated under subsection (m)), unless, upon application by an interested person, it has been demonstrated to the Administrator, to a reasonable degree of certainty, that there will be no migration of hazardous constituents from the disposal unit or injection zone for as long as the wastes remain hazardous. "(2) Paragraph (1) applies to the following hazardous wastes listed or identified under section 3001: "(A) Liquid hazardous wastes, including free liquids assoclated with any solid or sludge, containing free cyanides at concentrations greater than or equal to 1,000 mg/l. "(B) Liquid hazardous wastes, including free liquids associated with any solid or sludge, containing the following metals (or elements) or compounds of these metals (or elements) at concentrations greater than or equal to those specified below: "(i) arsenic and/or compounds (as As) 500 mg/l; "(ii) cadmium and/or compounds (as Cd) 100 mg/l; "(iii) chromium (VI and/or compounds (as Cr VD) 500 mg/l; (iv) lead and/or compounds (as Pb) 500 mg/l; "(v) mercury and/or compounds (as Hg) 20 mg/l; "(vi) nickel and/or compounds (as Ni) 134 mg/l: "(vii) selenium and/or compounds (as Se) 100 mg/l; and "(vili) thallium and/or compounds (as Th) 130 mg/L TO Liquid hazardous waste having a pH less than or equal to two (2.0). "(D) Liquid hazardous wastes containing polychlorinated biphenyls at concentrations greater than or equal to 50 ppm. "(E) Hazardous wastes containing halogenated organic compounds in total concentration greater than or equal to 1,000 mg/kg. When Decessary to protect human health and the environment, the Administrator shall substitute more stringent concentration levels than the levels specified in subparagraphs (A) through (E) "(8) During the period ending forty-eight months after the date of the enactment of the Hazardous and Solid Waste Amendments of 1984, this subsection shall not apply to any disposal of contaminated soil or debris resulting from a response action taken under section 104 or 106 of the Comprehensive Environmental Response, Compenantion, and Liability Act of 1980 or a corrective action required under this subtitle. "(e) SOLVENTS AND Effective twenty-four months after the date of enactment of the Hazardous and Solid Waste Amendments of 1984 (except as provided in subsection in with respect to underground injection into deep injection wells). the land disposal of the hazardous wastes referred to in paragraph (2) is prohibited unless the Administrator determines the prohibition of one or more methods of land disposal of such waste is not required in order to protect human health and the environment for as long as the waste remains hazardous, taking into account the factors referred to in subparagraph (A) through (C) of subsection (d)(1). For the purposes of this paragraph. # method of land disposal may not be determined to be protective of human health and the environment for a hazardous waste referred to in paragraph (2) (other than a hazardous waste which has complied with the pretrestment regulations promulgated under subsection (m)), unless upon application by an interested person it has been demonstrated to the Administrator, to a reasonable degree of certainty, that there will be DO migration of hazardous constituents from the disposal unit or injection zone for as long as the wastes remain hazardous. "(2) The hazardous wastes to which the prohibition under paragraph (1) applies are as follows- "(A) dioxin-containing hazardous wastes numbered F020, F021, F022, and F023 (as referred to in the proposed rule published by the Administrator in the Federal Register for April 4, 1983). and "(B) those hazardous wastes numbered F001. F002, F003, F004, and F005 in regulations promulgated by the Administrator under section 3001 (40 C.F.R. 261.31 (July 1, 1983)), as those regulations are in effect on July 1, 1983. "(3) During the period ending forty-eight months after the date of the enactment of the Hazardous and Solid Waste Amendments of 1984, this subsection shall not apply to any disposal of contaminated soil or debris resulting from D response action taken under section 104 or 106 of the Comprehenisve Environmental Response. Compensation, and Liability Act of 1980 or a corrective action required under this subtitle. "(f) DISPOSAL INTO DEEP INJECTION WELLS: SPECIFIED SUBSECTION (d) WASTES; SOLVENTS AND DIOXINS.-(1) Not later than forty-five months after the date of enactment of the Hazardous and Solid Waste Amendments of 1984, the Administrator shall complete a review of the disposal of all hazardous wastes referred to in paragraph (2) of subsection (d) and in paragraph (2) of subsection (e) by underground injection into deep injection wells. "(2) Within forty-five-months after the date of the enactment of the Hazardous and Solid Waste Amendments of 1984. the Administrator shall make a determination regarding the disposal by underground injection into deep injection wells of the hazardous wastes referred to in paragraph (2) of subsection (d) and the hazardous wastes referred to in paragraph (2) of subsection (e). The Administrator shall promulgate final-regulations prohibiting the disposal of such wastes into such wells if it may reasonably be determined that such disposal may not be protective of human health and the environment for as long as the waste remains hazardous, taking into account the factors referred to in subparagraphs (A) through (C) of subsection (d)(1). In promulgating such regulations, the Administrator shall consider each hazardous waste referred to in paragraph (2) of subsection (d) or in paragraph (2) of subsection (a) which is prohibited from disposal into such wells by any State. "(3) If the Administrator fails to make a determination under paragraph (2) for any hazardous waste referred to in paragraph (2) of subsection (d) or in paragraph (2) of subsection (e) within forty-five months after the date of enactment of the Hazardous and Solid Waste Amendments of 1984. such hazardous waste shall be prohibited from disposal into any deep injection well. "(4) As used in this subsection, the term 'deep injection well' means a well used for the underground injection of hazardous waste other than a well to which section 7010(a) applies. "(g) ADDITIONAL LAND DISPOSAL PRONISITION DETERMINATIONS (1) Not later than twenty-four months after the date of enactment of the Hazardous and Solid Waste Amendments of 1984. the Administrator shall submit a schedule to Congress for- "(A) reviewing all hazardous wastes listed (as of the date of the enactment of the Hazardous and Solid Waste Amendments of 1984) under section 2001 other than those wastes which are referred to in subsection (d) or (e): and S-722 71:3119 "(B) taking action under paragraph (5) of this subsection with respect to each such hazardous waste. "(2) The Administrator shall base the schedule on a ranking of such listed wastes considering their intrinsic hazard and their volume such that decisions regarding the land disposal of high volume hazardous wastes with high intrinsic hazard shall. to the maximum extent possible, be made by the date forty-five months after the date of enactment of the Hazardous and Solid Waste Amendments of 1984. Decisions regarding low volume hazardous wastes with lower intrinsic hazard shall be made by the date sixtysix months after such date of enactment. "(3) The preparation and submission of the schedule under this subsection shall not be subject to the Paperwork Reduction Act of 1980. No hearing on the record shall be required for purposes of preparation or submission of the schedule. The schedule shall not be subject to judicial review. "(4) The schedule under this subsection shall require that the Administrator shall promulgate regulations in accordance with paragraph (5) or make a determination under paragraph (5)- "(A) for at least one-third of all hazardous wastes referred to in paragraph (1) by the date forty-five months after the date of enactment of the Hazardous and Solid Waste Amendments of 1984: "(B) for at least two-thirds of all such listed wastes by the date fifty-five menths after the date of enactment of such Amendments; and "(C) for all such listed wastes and for all hazardous wastes identified under 3001 by the date sixty-six months after the date of ensetment of such Amendments. In the case of any hazardous waste identified or listed under section 3001 after the date of enactment of the Hazardous and Solid Waste Amendments of 1984, the Administrator shall determine whether such waste shall be prohibited from one or more methods of land disposal in accordance with paragraph (5) within six months after the date of such identification or listing. "(5) Not later than the date specified in the schedule published under this subsection, the Administrator shall promulgate final regulations prohibiting one or more methods of land disposal of the hazardous wastes listed on such schedule except for methods of land disposal which the Administrator determines will be protective of human health and the environment for as long as the waste remains hazardous, taking into account the factors referred to in subparagraph (A) through (C) of subsection (dx1). For the purposes of this paragraph, a method of land disposal may not be determined to be protective of human health and the environment (except with respect to a hazardous waste which has complied with the pretreatment regulations promulgated under subsection (m) unless, upon application by an interested person, it has been demonstrated to the Administrator, to a reasonable degree of certainty. that there will be no migration of hazardous constituents from the disposal unit or injection zone for as long as the wastes remain hazardous. "(6XA) If the Administrator fails (by the date forty-five months after the date of enactment of the Hazardous and Solid Waste Amendments of 1984) to promulgate regulations or make a determination under paragraph (5) for any hazan'ous waste which is included in the first one-third of the schedule published under this subsection, such hazardous waste may be disnosed of in a landfill or surface impoundment only if- "(i) such facility is in compliance with the requirements of subsection (o) which are applicable to new facilities (relating to minimum technological requirements); and "(ii) prior to such disposal, the generator has certified to the Administrator that such generator has investigated the availability of treatment capacity and has determined that the use of such landfill or surface impoundment is the only practical alternative to treatment currently available to the generator. The prohibition contained in this subparagraph shall continue to apply until the Administrator promulgates regulations or makes a determination under paragraph (5) for the waste concerned. "(B) If the Administrator fails (by the date 55 months after the date of enactment of the Hazardous and Solid Waste Amendments of 1984) to promulgate regulations or make a determination under paragraph (5) for any hazardous waste which is included in the first two-thirds of the schedule published under this subsection, such hazardous waste may be disposed of in a landfill or surface impoundment only if- "(i) such facility is in compliance with the requirements of subsection (o) which are applicable to new facilities (relating to minimum technological requirements); and "(ii) prior to such disposal, the generator has certified to the Administrator that such generator has investigated the availability of treatment capacity and has determined that the use of such landfill or surface impoundment is the only practical alternative to treatment currently available to the generator. The prohibition contained in this subparagraph shall continue to apply until the Administrator promulgates regulations or makes a determination under paragraph (5) for the waste concerned. "(C) If the Administrator fails to promulgate regulations, or make a determination under paragraph (5) for any hazardous waste referred to in paragraph (1) within 66 months after the date of enactment of the Hazardous and Solid Waste Amendments of 1984, such hazardous waste shall be prohibited from land disposal. "(h) VARIANCES FROM LAND DISPOSAL PROMISITIONS.-(1) A prohibition in regulations under subsection (d), (e), (f). or (g) shall be effective immediately upon promulgation. "(2) The Administrator may establish an effective date different from the effective date which would otherwise apply under subsection (d), (e), (0, or (g) with respect to a specific hazardous waste which is subject to a prohibition under subsection (d), (e), (f), or (g) or under regulations under subsection (d). (e), (f), or (g). Any such other effective date shall be established on the basis of the earliest date on which adequate alternative treatment, recovery. or disposal capacity which protects human health and the environment will be available Any such other effective date shall in no event be later than 2 years after the effective date of the prohibition which would otherwise apply under subsection (d). (e), (f), or (g). (8) The Administrator. after notice and opportunity for comment and after consultation with appropriate State agencies in all affected States, may on 0 case-by-case basis grant an extension of the effective date which would otherwise apply under subsection (d), (a), (f), or (g) or under paragraph (2) for up to one year, where the applicant demonstrates that there is a binding contractual commitment to construct or otherwise provide such alternative capacity but due to circumstances beyond the control of such applicant such alternative capacity cannot reasonably be made available by such effective date. Such extension shall be renewable once for no more than one additional year. "(4) Whenever another effective date (hereinafter referred to as a 'variance') is established under paragraph (2), or an extension is granted under paragraph (3), with respect to any hazardous waste, during the period for which such variance or extension is in effect. such hazardous waste may be disposed of in a landfill or surface impoundment only if such facility is in compliance with the requirements of subsection (o). "(i) PUBLICATION OF DETERMINATION.-If the Administrator determines that a method of land disposal will be protective of human health and the environment, he shall promptly publish in the Federal Register notice of such determination, together with an explanation of the basis for such determination. "(j) STORAGE OF HAZARDOUS WASTE PROMISITED FROM LAND DIS- POSAL-In the case of any hazardous waste which is prohibited from coe or more methods of land disposal under this section (or under regulations promulgated by the Administrator under any provision of this section) the storage of such hazardous waste is prohibited unless such storage is solely for the purpose of the accumulation of such quantities of hazardous waste as are necessary to facilitate proper recovery, treatment or disposal. "(k) DEFINITION OF LAND DISPORAL-For the purposes of this section. the term 'land disposal', when used with respect to . specified hazardous waste, shall be deemed to include. but not be limited to, any placement of such hazardous waste in a landfill. surface impoundment. waste pile, injection well, land treatment facility. salt dome formation. salt bed formation, or underground mine or cave. "0) BAN ON DUST SUPPRESSION.-The use of waste or used oil or other material, which is contaminated or mixed with dioxin or any other hazardous waste identified or listed under section 3001 (other than a waste identified solely on the basis of ignitability), for dust suppression or road treatment is prohibited. "un) TREATMENT STANDARDS FOR WASTES SUBJECT TO LAND Dis- FORAL PROMISITION-(1) Simultaneously with the promulgation of 71:3120 regulations under subsection (d), (e), in or (g) prohibiting one or more methods of land disposal of a particular hazardous waste, and as appropriate thereafter, the Administrator shall, after notice and an opportunity for hearings and after consultation with appropriate Federal and State agencies, promulgate regulations specifying those levels or methods of treatment. if any. which substantially diminish the toxicity of the waste or substantially reduce the likelihood of migration of hazardous constituents from the waste so that short. term and long-term threats to human health and the environment are minimized. *(2) If such hazardous waste has been treated to the level or by a method specified in regulations promulgated under this subsection, such waste or residue thereof shall not be subject to any prohibition promulgated under subsection (d), (e), (f). or (g) and may be disposed of in a land disposal facility which meets the requirements of this subtitle. Any regulation promulgated under this subsection for a particular hazardous waste shall become effective on the same date as any applicable prohibition promulgated under subsection (d), (e), (f), or (g). "(n) AJR EMISSIONS-Not later than thirty months after the date of enactment of the Hazardous and Solid Waste Amendments of 1984, the Administrator shall promulgate such regulations for the monitoring and control of air emissions at hazardous waste treatment, storage. and disposal facilities, including but not limited to open tanks. surface impoundments, and landfills, as may be necessary to protect human health and the environment. "(o) MINIMUM TECHNOLOGICAL REQUIREMENTS.-(1) The regulations under subsection (a) of this section shall be revised from time to time to take into account improvements in the technology of control and measurement. At a minimum, such regulations shall require, and a permit issued pursuant to section 3005(c) after the date of enactment of the Hazardous and Solid Waste Amendments of 1984 by the Administrator or a State shall require- "(A) for each new landfill or surface impoundment, each new landfill or surface impoundment unit at an existing facility, each replacement of an existing landfill or surface impoundment unit, and each lateral expansion of an existing landfill or surface impoundment unit, for which an application for a final determination regarding issuance of a permit under section 3005(c) is received after the date of enactment of the Hazardous and Solid Waste Amendments of 1984- "(i) the installation of two or more liners and a leachate collection system above tin the case of a landfill) and between such liners; and "(ii) ground water monitoring and "(B) for each incinerator which receives a permit under section 3005(c) after the date of enactment of the Hazardous and Solid Waste Amendments of 1984. the attainment of the minimum destruction and removal efficiency required by regulations in effect on June 24. 1982. The requirements of this geragraph shall apply with respect to all waste received after the issuance of the permit. "(2) Paragraph (18AXi) shall not apply if the owner or operator demonstrates to the Administrator. and the Administrator finds for such landfill or surface impoundment, that alternative design and operating practices. together with location characteristics, will prevent the migration of any hazardous constituents into the ground water or surface water at least as effectively as such liners and leachate collection systems. "(8) The double-liner requirement set forth in peragraph (1)(AXi) may be waived by the Administrator for any monofill, if "(A) such monofill contains only hazardous wastes from foundry furnace emission controls or metal casting molding sand. "(B) such wastes do not contain constituents which would render the wastes hazardous for reasons other than the Extraction Procedure ("EP") toxicity characteristics set forth in regulations under this subtitle. and "(C) such monofill meets the same requirements as are applicable in the case of a waiver under section 3005(j) (2) or (4). "(4XA) Not later than thirty months after the date of enactment of the Hazardous and Solid Waste Amendments of 1984, the Administrator shall promulgate standards requiring that new landfill units, surface impoundment units, waste piles, underground tanks and land treatment units for the storage, treatment. or disposal of hazardous waste identified or listed under section 3001 shall be required to utilize approved leak detection systems. (B) For the purposes of subparagraph (A)--- "W the term 'approved leak detection system' means a system or technology which the Administrator determines to be capable of detecting leaks of hazardous constituents at the earliest practicable time; and "(ii) the term "new units' means units on which construction commences after the date of promulgation of regulations under this paragraph. "(5XA) The Administrator shall promulgate regulations or issue guidance documents implementing the requirements of paragraph (1)(A) within two years after the date of the enactment of the Hazardous and Solid Waste Amendments of 1984. "(B) Until the effective date of such regulations or guidance documents, the requirement for the installation of two or more liners may be satisfied by the installation of a top liner designed. operated, and constructed of materials to prevent the migration of any constituent into such liner during the period such facility remains in operation (including any post-closure monitoring period), and a lower liner designed, operated and constructed to prevent the migration of any constituent through such liner during such period. For the purpose of the preceding sentence, a lower liner shall be deemed to satisfy such requirement if it is constructed of at least a 3-foot thick layer of recompacted clay or other natural material with a permeability of no more than 1x10⁻' centimeter per second. (6) Any permit under section 3005 which is issued for a landfill located within the State of Alabama shall require the installation of two or more liners and a leachate collection system above and between such liners, notwithstanding any other provision of this Act. "(7) in addition to the requirements set forth in this subsection. the regulations referred to in paragraph (1) shall specify criteria for the acceptable location of new and existing treatment, storage, or disposal facilities as necessary to protect human health and the environment. Within 18 months after the enactment of the Hazardous and Solid Waste Amendments of 1984. the Administrator shall publish guidance criteria identifying areas of vulnerable hydrogeology. GROUND WATER MONITORING "(p) GROUND WATER MONTTORING.-The standards under this section concerning ground water monitoring which are applicable to surface impoundments, waste piles, land treatment units, and landfills shall apply to such a facility whether or not- "(1) the facility is located above the seasonal high water table; "(2) two liners and a leachate collection system have been installed at the facility: or "(3) the owner or operator inspects the liner (or liners) which has been installed at the facility. This subsection shall not be construed to affect other exemptions or waivers from such standards provided in regulations in effect on the date of enactment of the Hazardous and Solid Waste Amendments of 1984 or as may be provided in revisions to those regulations, to the extent consistent with this subsection. The Administrator is authorised on a case-by-case basis to exempt from ground water monitoring requirements under this section (including subsection (a)) any engineered structure which the Administrator finds does not receive or contain liquid waste (nor waste containing free liquids), is designed and operated to exclude liquid from precipitation or other runoff, utilizes multiple leak detection systems within the outer layer of containment, and provides for continuing operation and maintenance of these leak detection systems during the operating period, closure, and the period required for post-closure monitoring and for which the Administrator concludes on the basis of such S-722 71:3121 findings that there is a reasonable certainty hazardous constituents will not migrate beyond the outer layer of containment prior to the end of the period required for post-closure monitoring. "(q) HAZARDOUS WASTE USED AS FUEL-(1) Not later than two years after the date of the enactment of the Hazardous and Solid Waste Amendments of 1984, and after notice and opportunity for public hearing. the Administrator shall promulgate regulations establishing such- "(A) standards applicable to the owners and operators of facilities which produce & fuel- "(i) from any hazardous waste identified or listed under section 3001, or "(ii) from any hazardous waste identified or listed under section 3001 and any other material; "(B) standards applicable to the owners and operators of facilities which burn, for purposes of energy recovery, any fuel produced as provided in subparagraph (A) or any fuel which otherwise contains any hazardous waste identified or listed under section 3001; and "(C) standards applicable to any person who distributes or markets any fuel which is produced as provided in subparagraph (A) or any fuel which otherwise contains any hazardous waste identified or listed under section 3001 as may be necessary to protect human health and the environment. Such standards may include any of the requirements set forth in paragraphs (1) through (7) of subsection (a) as may be appropriate. Nothing in this subsection shall be construed to affect or impair the provisions of section 3001(b)(3). For purposes of this subsection, the term hazardous waste listed under section 3001' includes any commercial chemical product which is listed under section 3001 and which, in lieu of its original intended use. is (i) produced for use as (or as a component of) a fuel, (ii) distributed for use as a fuel, or (iii) burned as a fuel. "(2XA) This subsection, subsection (r), and subsection (s) shall not apply to petroleum refinery wastes containing oil which are converted into petroleum coke at the same facility at which such wastes were generated, unless the resulting coke product would exceed one or more characteristics by which a substance would be identified as a hazardous waste under section 3001. "(B) The Administrator may exempt from the requirements of this subsection, subsection (r). or subsection (s) facilities which burn de minimis quantities of hazardous waste as fuel. as defined by the Administrator, if the wastes are burned at the same facility at which such wastes are generated; the waste is burned to recover useful energy, as determined by the Administrator on the basis of the design and operating characteristics of the facility and the heating value and other characteristics of the waste; and the waste is burned in a type of device determined by the Administrator to be designed and operated at a destruction and removal efficiency sufficient such that protection of human health and environment is assured. "(C)(i) After the date of the enactment of the Hazardous and Solid Waste Amendments of 1984 and until standards are promulgated and in effect under paragraph (2) of this subsection, DO fuel which contains any hazardous waste may be burned in any cement kiln which is located within the boundaries of any incorporated municipality with a population greater than five hundred thousand (based on the most recent census statistics) unless such kiln fully complies with regulations (as in effect on the date of the enactment of the Harardous and Solid Waste Amendments of 1984) under this subtitle which are applicable to incinerators. "(ii) Any person who knowingly violates the prohibition contained in clause (i) shall be deemed to have violated section 3008(dx2). "(r) LABELING.(1) Notwithstanding any other provision of law, until such time as the Administrator promulgates standards under subsection (q) specifically superceding this requirement, it shall be unlawful for any person who is required to file a notification in accordance with paragraph (1) or (3) of section 3010 to distribute or market any fuel which is produced from any hazardous waste identified or listed under section 3001, or any fuel which otherwise contains any hazardous waste identified or listed under section 3001 if the invoice or the bill of sale fails- "(A) to bear the following statement: WARNING: THIS FUEL CONTAINS HAZARDOUS WASTES'. and "(B) to list the hasardous wastes contained therein. Beginning ninety days after the enactment of the Hazardous and Solid Waste Amendments of 1984, such statement shall be located in a conspicuous place on every such invoice or bill of sale and shall appear in conspicuous and legible type in contrast by typography. layouts, or color with other printed matter on the invoice or bill of sale. "(2) Unless the Administrator determines otherwise as may be necessary to protect human health and the environment, this subsection shall not apply to fuels produced from petroleum refining waste containing oil if- "(A) such materials are generated and reinserted onsite into the refining process; "(B) contaminants are removed; and "(C) such refining waste containing oil is converted along with normal process streams into pertroleum-derived fuel products at a facility at which crude oil is refined into petroleum prodacts and which is classified as a number SIC 2911 facility under the Office of Management and Budget Standard Industrial Classification Manual. "(8) Unless the Administrator determines otherwise as may be necessary to protect human health and the environment. this subsection shall not apply to fuels produced from oily materials, resulting from normal petroleum refining, production and transportation practices, if (A) contaminants are removed; and (B) such oily materials are converted along with normal process streams into petroleumderived fuel products at a facility at which crude oil is refined into petroleum products and which is classified as a number SIC 2911 facility under the Office of Management and Budget Standard Classification Manual. "(s) RECORDEEEPING-Not later than fifteen months after the date of enactment of the Hazardous and Solid Waste Amendments of 1984, the Administrator shall promulgate regulations requiring that any person who is required to file a notification in accordance with subperagraph (1), (2), or (3). of section 3010(a) shall maintain such records regarding fuel blending. distribution, or use as may be necessary to protect human health and the environment. "(t) FINANCIAL RESPONSIBILITY PROVISIONS.-(1) Financial responsibility required by subsection (a) of this section may be established to accordance with regulations promulgated by the Administrator by any one, or any combination, of the following insurance, guarantee, surety bond, letter of credit, or qualification as a self-insurer. In promulgating requirements under this section. the Administrator is authorized to specify policy or other contractual terms, conditions, or defenses which are necessary or are unacceptable in establishing such evidence of financial responsibility in order to effectuate the purposes of this Act. "(2) In any case where the owner or operator is in bankruptcy, reorganization, or arrangement pursuant to the Federal Bankruptcy Code or where (with reasonable diligence) jurisdiction in any State court or any Federal Court cannot be obtained over an owner or aperator likely to be solvent at the time of judgment, any claim arising from conduct for which evidence of financial responsibility must be provided under this section may be asserted directly against the guarantor providing such evidence of financial responsibility. In the case of any action pursuant to this subsection, such guarantor shall be entitled to invoke all rights and defenses which would have been available to the owner or operator if any action had been brought against the owner or operator by the claimant and which would have been available to the guarantor if an action had been brought against the guarantor by the owner or operator. "(3) The total liability of any guarantor shall be limited to the aggregate amount which the guarantor has provided as evidence of financial responsibility to the owner or operator under this Act. Nething in this subsection shall be construed to limit any other State or Federal statutory. contractual or common law liability of a guarantor to its owner or operator including. but not limited to, the liability of such guarantor for bad faith either in negotiating or in failing to megotiate the settlement of any claim. Nothing in this subsection shall be construed to diminish the liability of any person under section 107 or 111 of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 or other applicable law. "(4) For the purpose of this subsection, the term 'guarantor' means any person, other than the owner or operator, who provides evidence of financial responsibility for an owner or operator under this section. 71:3122 "(u) CONTINUING RELEASES AT PERMITTED FACILITIES-Standards promulgated under this section shall require, and a permit issued after the date of enactment of the Hazardous and Solid Waste Amendments of 1984 by the Administrator or a State shall require, corrective action for all releases of hazardous waste OF constituents from any solid waste management unit at a treatment, storage, or disposal facility seeking a permit under this subtitle, regardless of the time at which waste was placed in such unit. Permits issued under section 3005 shall contain schedules of compliance for such corrective action (where such corrective action cannot be completed prior to issuance of the permit) and assurances of financial responsibility for completing such corrective action. "(v) CORRECTIVE ACTIONS BEYOND FACILITY BOUNDARY-As promptly as practicable after the date of the enactment of the Hazardous and Solid Waste Amendments of 1984, the Administrator shall amend the standards under this section regarding corrective action required at facilities for the treatment, storage, or disposal, of hazardous waste listed or identified under section 3001 to require that corrective action be taken beyond the facility boundary where necessary to protect human health and the environment unless the owner or operator of the facility concerned demonstrates to the satisfaction of the Administrator that, despite the owner or operator's best efforts, the owner or operator was unable to obtain the necessary permission to undertake such action. Such regulations shall take effect immediately upon promulgation. notwithstanding section 3010(b). and shall apply to- "(1) all facilities operating under permits issued under subsection (c), and "(2) all landfills, surface impoundments, and waste pile units (including any new units, replacements of existing units, or lateral expansions of existing units) which receive hazardous waste after July 26, 1982. Pending promulgation of such regulations, the Administrator shall issue corrective action orders for facilities referred to in paragraphs (1) and (2), on a case-by-case basis, consistent with the purposes of this subsection. "(w) UNDERGROUND TANKS-Not later than March 1, 1985. the Administrator shall promulgate final permitting standards under this section for underground tanks that cannot be entered for inspection. Within forty-eight months after the date of the enactment of the Hazardous and Solid Waste Amendments of 1984. such standards shall be modified, if necessary, to cover at a minimum all requirements and standards described in section 9003. "(s) If (1) solid waste from the extraction, beneficiation or processing of ores and minerals, including phosphate rock and overburden from the mining of uranium, (2) fly ash waste, bottom ash waste, alag waste, and flue gas emission control waste generated primarily from the combustion of coal or other fossil fuels, or (3) cement kiln dust waste, is subject to regulation under this subtitle, the Administrator is authorized to modify the requirements of subsections (c), (d), (e), (f), (g). (o), and (u) and section 3005(j), in the case of landfills or surface impoundments receiving such solid waste, to take into account the special characteristics of such wastes, the practical difficulties associated with implementation of such requirements, and site-specific characteristics, including but not limited to the climate, geology. hydrology and soil chemistry at the site, so long as such modified requirements essure protection of human health and the environment. "Permits for Treatment, Storage, or Disposal of Hazardous Waste "Sec. 3005. (a) Permit Requirements.-Not later than eighteen months after the date of the enactment of this section, the Administrator shall promulgate regulations requiring each person owning or operating an existing facility or planning to construct a new facility for the treatment, storage, or disposal of hazardous waste identified or listed under this subtitle to have a permit issued pursuant to this section. Such regulations shall take effect on the date provided in section 3010 and upon and after such date the treatment, storage, or disposal of any such hazardous waste and the construction of any new facility for the treatment, storage, or disposal of any such hazardous waste is prohibited except in accordance with such a permit. No permit shall be required under this section in order to construct a facility if such facility is constructed pursuant to an approval issued by the Administrator under section 6(e) of the Toxic Substances Control Act for the incineration of polycholorinated biphenyls and-any person owning or operating such a facility may, at any time after operation or construction of such facility has begun, file an application for a permit pursuant to this section authorizing such facility to incinerate hazardous waste identified or listed under this subtitle. [3005(a) amended by PL 98-616] "(b) Requirements of Permit Application.-Each application for a permit under this section shall contain such information as may be required under regulations promulgated by the Administrator, including information respecting- "(I) estimates with respect to the composition, quantities, and concentrations of any hazardous waste identified or listed under this subtitle, or combinations of any such hazardous waste and any other solid waste, proposed to be disposed of, treated, transported, or stored, and the time, frequency, or rate of which such waste is proposed to be disposed of, treated, transported, or stored; and "(2) the site at which such hazardous waste or the products of treatment of such hazardous waste will be disposed of, treated, transported to, or stored. "(c) Permit Issuance.-(1) Upon a determination by the Administrator (or a State, if applicable), of compliance by a facility for which a permit is applied for under this section with the requirements of this section and section 3004, the Administrator (or the State) shall issue a permit for such facilities. in the event permit applicants propose modification of their facilities, or in the event the Administrator (or the State) determines that modifications are necessary to conform to the requirements under this section and section 3004, the permit shall specify the time allowed to complete the modifications. (3005(c)(1) designated by PL 98-616] "(SKAND Not later than the date four years after the enactment of the Harardous and Solid Waste Amendments of 1984. in the case of each application under this subsection for a permit for a land disposal facility which was submitted before such date, the Administrator shall issue a final permit pursuant to such application or issue a final denial of such application. "(ii) Not later than the date five years after the enactment of the Hazardous and Solid Waste Amendments of 1984, in the case of each application for a permit under this subsection for an incinerator facility which was submitted before such date, the Administrator shall issue a final permit pursuant to such application or issue a final denial of such application. "(B) Not later than the date eight years after the enactment of the Hazardous and Solid Waste Amendments of 1984, in the case of each application for a permit under this subsection for any facility (other than a facility referred to in subparagraph (A)) which was submitted before such date, the Administrator shall issue a final permit pursuant to such application or issue a final denial of such application. "(C) The time periods specified in this paragraph shall also apply in the case of any State which is administering an authorized hazardous waste program under section 3006. Interim status under subsection (e) shall terminate for each facility referred to in subparagraph (AXii) or (B) on the expiration of the five- or eight-year period referred to in subparagraph (A) or (B), whichever is applicable. unless the owner or operator of the facility applies for a final determination regarding the issuance of a permit under this subsection within- "(i) two years after the date of the enactment of the Hazardour and Solid Waste Amendments of 1984 (in the case of a facility referred to in subparagraph (AXii), or "(ii) four years after such date of enactment (in the case of a facility referred to in subparagraph (B)). [3005(c)(2) added by PL 98-616]. "(8) Any permit under this section shall be for a fixed term, not to exceed 10 years in the case of any land disposal facility, storage facility, or incinerator or other treatment facility. Each permit for a land disposal facility shall be reviewed five years after date of issuance or reissuance and shall be modified as necessary to assure that the facility continues to comply with the currently applicable requirements of this section and section 3004. Nothing in this subsection shall preclude the Administrator from reviewing and modifying a permit at any time during its term. Review of any application for a permit renewal shall consider improvements in the state of control and measurement technology as well as changes in applicable regulations. Each permit issued under this section shall contain such terms and conditions as the Administrator (or the State) determines necessary to protect human health and the environment.". [3005(c)(3) added by PL 98-616] "(d) Permit Revocation.-Upon a determination by the Administrator (or by a State, in the case of a State having an authorized hazardous waste program under section 3006) of noncompliance by a facility having a permit under this title with the requirements of this section or section 3004, the Administrator (or State, in the case of a State having an authorized hazardous waste program under section 3006) shall revoke such permit. "(e) Interim Status.-(1) Any person who- [3005(e)(1) designated by PL 98-616] "(A) owns or operates a facility required to have a permit under this section which facility- "(i) was in existence on November 19, 1980, or "(ii) is in existence on the effective date of statutory or regulatory changes under this Act that render the facility subject to the requirement to have a permit under this section, [Former 3005(e)(1) amended and redesignated as (A) by PL 98-616] "(B) has complied with the requirements of section 3010(a). and [Former 3005(e)(2) redesignated as (B) by PL 98-616] "(C) has made an application for a permit under this section shall be treated as having been issued such permit until such time as final administrative disposition of such application is made, unless the Administrator or other plaintiff proves that final administrative disposition of such application has not been made because of the failure of the applicant to furnish information reasonably required or requested in order to process the application. [Former 3005(e)(3) amended and redesignated as (C) by PL 98-616] "This paragraph shall not apply to any facility which has been previously denied a permit under this section or if authority to operate the facility under this section has been previously terminated. "(2) In the case of each land disposal facility which has been granted interim status under this subsection before the date of enactment of the Hazardous and Solid Waste Amendments of 1984, interim status shall terminate on the date twelve months after the date of the enactment of such Amendments unless the owner or operator of such facility- "(A) applies for a final determination regarding the issuance of a permit under subsection (c) for such facility before the date twelve months after the date of the enactment of such Amendments; and "(B) certifies that such facility is in compliance with all applicable groundwater monitoring and financial responsibility requirements. [New 3005(e)(2) added by PL 98-616] "(3) In the case of each land disposal facility which is in existence on the effective date of statutory or regulatory changes under this Act that render the facility subject to the requirement to have a permit under this section and which is granted interim status under this subsection, interim status shall terminate on the date twelve months after the date on which the facility first becomes subject to such permit requirement unless the owner or operator of such facility- "(A) applies for a final determination regarding the issuance of a permit under subsection (c) for such facility before the date twelve months after the date on which the facility first becomes subject to such permit requirement; and "(B) certifies that such facility is in compliance with all applicable groundwater monitoring and financial responsibility requirements. [New 3005(e)(3) added by PL 98-616] "(f) Coal Mining Wastes and Reclamation Permits.-Notwithstanding subsection (a) through (e) of this section, any surface coal mining and reclamation permit covering any coal mining wastes or overburden which has been issued or approved under the Surface Mining Control and Reclamation Act of 1977 shall be deemed to be a permit issued pursuant to this section with respect to the treatment, storage, or disposal of such wastes or overburden. Regulations promulgated by the Administrator under this subtitle shall not be applicable to treatment, storage, or disposal of coal mining wastes and overburden which are covered by such a permit. [3005(f) added by PL 96-482] 71:3124 [3005(g)-(j) added by PL 98-616] "(g) RESEARCH, DEVELOPMENT, AND DEMONSTRATION PERMITS-(1) The Administrator may issue & research, development, and demonstration permit for any hazardous waste treatment facility which proposes to utilize an innovative and experimental hazardous waste treatment technology or process for which permit standards for such experimental activity have not been promulgated under this subtitle. Any such permit shall include such terms and conditions as will assure protection of human health and the environment. Such permits- "(A) shall provide for the construction of such facilities, as Decessary. and for operation of the facility for not longer than ODE year (unless renewed as provided in paragraph (4)), and "(B) shall provide for the receipt and treatment by the facility of only those types and quantities of hazardous waste which the Administrator deems necessary for purposes of determining the efficacy and performance capabilities of the technology or procass and the effects of such technology or process on human health and the environment, and "(C) shall include such requirements as the Administrator deems necessary to protect human health and the environment (including, but not limited to, requirements regarding monitoring. operation, insurance or bonding, financial reponsibility, closure, and remedial action). and such requirements as the Administrator deems necessary regarding testing and providing of information to the Administrator_ with respect to the operation of the facility. The Administrator may apply the criteria net forth in this paragraph in establishing the conditions of each permit without separate establishment of regulations implementing such criteria. "(2) For the purpose of expediting review and issuance of permits under this subsection, the Administrator may, consistent with the protection of human health and the environment. modify or waive permit application and permit issuance requirements established in the Administrator's general permit regulations except that there may be no modification or waiver of regulations regarding financial responsibility (including insurance) or of procedures established under section 7004(b)(2) regarding public participation. "(3) The Administrator may order an immediate termination of all operations st the facility at any time he determines that termination is necessary to protect human health and the environment. "(4) Any permit issued under this subsection may be renewed not more than three times. Each such renewal shall be for a period of not more than 1 year. "(h) WASTE MINIMIZATION-Effective September 1. 1985, it shall be a condition of any permit issued under this section for the treatment. storage. or disposal of hazardous waste on the premises where such waste was generated that the permittee certify, no less often than annually. that- "(1) the generator of the hazardous waste has a program in place to reduce the volume or quantity and toxicity of such waste to the degree determined by the generator to be economically practicable; and "(2) the proposed method of treatment, storage, or disposal is that practicable method currently available to the generator which minimizes the present and future threat to human health and the environment. "(i) INTERIM STATUS FACTLITIES RECEIVING WASTES AFTER JULY 26, 1982-The standards concerning ground water monitoring. unsaturated sone monitoring, and corrective action, which are applicable under section 3004 to new landfills. surface impoundments, land treatment units, and waste-pile units required to be permitted under subsection (c) shall also apply to any landfill. surface impoundment, land treatment unit, or waste-pile unit qualifying for the authorizetion to operate under subsection (e) which receives hazardous waste after July 26, 1982 "() INTERIM STATUS SURFACE IMPOUNDMENTS.-(1) Except as provided in paragraph (2), (3), or (4), each surface impoundment in existence on the date of enactment of the Hazardous and Solid Waste Amendments of 1984 and qualifying for the authorization to operate under subsection (e) of this section shall not receive, store, or treat hazardous waste after the date four years after such date of enactment unless such surface impoundment is in compliance with the requirements of section 3004(oX1XA) which would apply to such impoundment if it were new. "(2) Paragraph (1) of this subsection shall not apply to any surface impoundment which (A) has at least one liner, for which there is no evidence that such liner is leaking: (B) is located more than onequarter mile from an underground source of drinking water: and (C) is in compliance with generally applicable ground water monitoring requirements for facilities with permits under subsection (c) of this section. "(3) Paragraph (1) of this subsection shall not apply to any surface impoundment which (A) contains treated waste water during the secondary or subsequent phases of an aggressive biological treatment facility subject to a permit issued under section 402 of the Clean Water Act (or which holds such treated waste water after treatment and prior to discharge); (B) is in compliance with generally applicable ground water monitoring requirements for facilities with permits under subsection (c) of this section; and (CXi) is part of a facility in compliance with section 301(b)(2) of the Clean Water Act, or (ii) in the case of a facility for which no effluent guidelines required under section 304(b)(2) of the Clean Water Act are in effect and no permit under section 402(a)(1) of such Act implementing section 301(b)(2) of such Act has been issued. is part of a facility in compliance with a permit under section 402 of such Act, which is achieving significant degradation of toxic pollutants and hazardous constituents contained in the untreated waste stream and which has identified those toxic pollutants and hazardous constituents in the untreated waste stream to the appropriate permitting authority. "(4) The Administrator (or the State, in the case of a State with an authorized program), after notice and opportunity for comment, may modify the requirements of paragraph (1) for any surface impoundment if the owner or operator demonstrates that such surface impoundment is located, designed and operated so as to assure that there will be no migration of any hazardous constitutent into ground water or surface water at any future time. The Administrator or the State shall take into account locational criteria established under section 3004(o)(7). "(5) The owner or operator of any surface impoundment potentially subject to paragraph (1) who has reason to believe that on the basis of paragraph (2). (3), or (4) such surface impoundment is not required to comply with the requirements of paragraph (1). shall apply to the Administrator (or the State. in the case of 8 State with an authorised program) not later than twenty-four months after the date of enactment of the Hazardous and Solid Waste Amendments of 1984 for a determination of the applicability of paragraph (1) (in the case of paragraph (2) or (3)) or for a modification of the requirements of paragraph (1) (in the case of paragraph (4)), with respect to such surface impoundment. Such owner or operator shall provide. with such application, evidence pertinent to such decision, including: "(A) an application for a final determination regarding the issuance of a permit under subsection (c) of this section for such facility. if not previously submitted: "(B) evidence as to compliance with all applicable ground water monitoring requirements and the information and analysis from such monitoring: "(C) all reasonably ascertainable evidence as to whether such surface impoundment is leaking: and EXISTING SURFACE IMPOUNDMENTS S-722 71:3125 "(D) in the case of applications under paragraph (2) or (3), a certification by a registered professional engineer with academic training and experience in ground water hydrology that- "(i) under paragraph (2), the liner of such surface impoundment is designed. constructed. and operated in accordance with applicable requirements, such surface impoundment is more than one-quarter mile from an underground source of drinking water and there is no evidence such liner is leaking: or "(ii) under paragraph (3). based on analysis of those toxic pollutants and hazardous constituents that are likely to be present in the untreated waste stream. such impoundment satisfies the conditions of paragraph (3). In the case of any surface impoundment for which the owner or operator fails to apply under this paragraph within the time provided by this paragraph or paragraph (6), such surface impoundment shall comply with paragraph (1) notwithstanding paragraph (2), (3), or (4). Within twelve months after receipt of such application and evidence and not later than thirty-six months after such date of enactment, and after notice and opportunity to comment, the Administrator (or, if appropriate, the State) shall advise such owner or operator on the applicability of paragraph (1) to such surface impoundment or as to whether and how the requirements of paragraph (1) shall be modified and applied to such surface impoundment "(6XA) In any case in which a surface impoundment becomes subject to paragraph (1) after the date of enactment of the Hazardous and Solid Waste Amendments of 1984 due to the promulgation of additional listings or characteristics for the identification of hazardous waste under section 3001, the period for compliance in paragraph (1) shall be four years after the date of such promulgation, the period for demonstrations under paragraph (4) and for submission of evidence under paragraph (5) shall be not later than twenty-four months after the date of such promulgation, and the period for the Administrator (or if appropriate, the State) to advise such owners or operators under paragraph (5) shall be not later than thirty-six months after the date of promulgation. "(B) In any case in which a surface impoundment is initially determined to be excluded from the requirements of paragraph (1) but due to a change in condition (including the existence of a leak) DO longer satisfies the provisions of paragraph (2), (3), or (4) and therefore becomes subject to paragraph (1), the period for compliance in paragraph (1) shall be two years after the date of discovery of such change of condition, or in the case of surface impoundment excluded under paragraph (3) three years after such date of discovery. "(7XA) The Administrator shall study and report to the Congress on the number, range of size, construction, likelihood of hazardous constituents migrating into ground water, and potential threat to human health and the environment of existing surface impoundments excluded by paragraph (3) from the requirements of paragraph (1). Such report shall address the need, feasibility. and estimated costs of subjecting such existing surface impoundments to the requirements of paragraph (1). "(B) In the case of any existing surface impoundment or class of surface impoundments from which the Administrator (or the State, in the case of a State with an authorized program) determines hazardous constituents are likely to migrate into ground water, the Administrator (or if appropriate. the State) is authorized to impose such requirements as may be necessary to protect human health and the environment, including the requirements of section 3004(o) which would apply to such impoundments if they were new. "(C) In the case of any surface impoundment excluded by paragraph (3) from the requirements of paragraph (1) which is subsequently determined to be leaking. the Administrator (or, if appropriate, the State) shall require compliance with paragraph (1). unless the Administrator (or, if appropriate, the State) determines that such compliance is not necessary to protect human health and the environment. "(8) in the case of any surface impoundment in which the liners and leak detection system have been installed pursuant to the requirements of paragraph (1) and in good faith compliance with section 3004(o) and the Administrator's regulations and guidance documents governing liners and leak detection systems, no liner or leak detection system which is different from that which was so installed pursuant to paragraph (1) shall be required for such unit by the Administrator when issuing the first permit under this section to such facility. Nothing in this paragraph shall preclude the Administrator from requiring installation of a new liner when the Administrator has reason to believe that any liner installed pursuant to the requirements of this subsection is leaking. "(9) In the case of any surface impoundment which has been excluded by paragraph (2) on the basis of a liner meeting the definition under paragraph (12XAXii), at the closure of such impoundment the Administrator shall require the owner or operator of such impoundment to remove or decontaminate all waste residues. all contaminated liner material, and contaminated soil to the extent practicable. If all contaminated soil is not removed or decontaminated, the owner or operator of such impoundment shall be required to comply with appropriate post-closure requirements, including but not limited to ground water monitoring and corrective action. ((10) Any incremental cost attributable to the requirements of this subsection or section 3004(o) shall not be considered by the Administrator (or the State, in the case of a State with an authorised program under section 402 of the Clean Water Act)- "(A) in establishing effluent limitations and standards under section 301, 304, 306, 307, or 402 of the Clean Water Act based on effluent limitations guidelines and standards promulgated any time before twelve months after the date of enactment of the Hazardous and Solid Waste Amendments of 1984; or "(B) in establishing any other effluent limitations to carry out the provisions of section 301, 307, or 402 of the Clean Water Act on or before October t, 1986. "(11XA) If the Administrator allows a hazardous waste which is prohibited from one or more methods of land disposal under subsection (d), (e), or (g) of section 3004 (or under regulations promulgated by the Administrator under such subsections) to be placed in a surface impoundment (which is operating pursuant to interim status) for storage or treatment, such impoundment shall meet the requirements that are applicable to new surface impoundments under section 3004(oX(1), unless such impoundment meets the requirements of paragraph (2) or (4). "(B) In the case of any hazardous waste which is prohibited from one or more methods of land disposal under subsection (d), (e), or (g) of section 3004 (or under regulations promulgated by the Administrator under such subsection) the placement or maintenance of such hazardous waste in a surface impoundment for treatment is prohibited as of the effective date of such prohibition unless the treatment residues which are hazardous are, at a minimum, removed for subsequent management within one year of the entry of the waste into the surface impoundment. "(12XA) For the purposes of paragraph (2XA) of this subsection, the term 'liner' means- "(i) a liner designed, constructed, installed. and operated to prevent hazardous waste from passing into the liner at any time during the active life of the facility; or "(ii) a liner designed, constructed, installed. and operated to prevent hazardous waste from migrating beyond the liner to adjacent subsurface soil, ground water, or surface water at any time during the active life of the facility. "(B) For the purposes of this subsection, the term 'aggressive biological treatment facility' means a system of surface impoundments in which the initial impoundment of the secondary treatment segment of the facility utilizes intense mechanical seration to enhance biological activity to degrade waste water pollutants and "(i) the hydraulic retention time in such initial impoundment is no longer than 5 days under normal operating conditions, on an annual average basis; "(ii) the hydraulic retention time in such initial impoundment is no longer than thirty days under normal operating conditions, on an annual average basis: Provided. That the sludge in such impoundment does not constitute a hazardous waste as identified by the extraction procedure toxicity characteristic in effect on the date of enactment of the Hazardous and Solid Waste Amendments of 1984; or "(iii) such system utilizes activated sludge treatment in the first portion of secondary treatment. 71:3126 TC) For the purposes of this subsection, the term "underground source or drinking water' has the same meaning as provided in regulations under the Safe Drinking Water Act (title XIV of the Public Health Service Act). *(18) The Administrator may modify the requirements of persgraph (1) in the case of a surface impoundment for which the owner or operator. prior to October 1, 1984, has entered into. and is in compliance with, a consent order, decree, or agreement with the Administrator or a State with an authorized program mandating corrective action with respect to such surface impoundment that provides a degree of protection of human health and the environment which is at a minimum equivalent to that provided by paragraph (1). "Authorized State Hazardous Waste Programs "Sec. 3006. (a) Federal Guidelines.-Not later than eighteen months after the date of enactment of this Act, the Administrator, after consultation with State authorities, shall promulgate guidelines to assist States in the development of State hazardous waste programs. "(b) Authorization of State Program.-Any State which seeks to administer and enforce a hazardous waste program pursuant to this subtitle may develop and, after notice and opportunity for public hearing, submit to the Administrator an application, in such form as he shall require, for authorization of such program. Within ninety days following submission of an application under this subsection, the Administrator shall issue a notice as to whether or not he expects such program to be authorized, and within ninety days following such notice (and after opportunity for public hearing) he shall publish his findings as to whether or not the conditions listed in items (1), (2), and (3) below have been met. Such State is authorized to carry out such program in lieu of the Federal program under this subtitle in such State and to issue and enforce permits for the storage, treatment, or disposal of hazardous waste (and to enforce permits deemed to have been issued under section 3012(d)(1)) unless, within ninety days following submission of the application the Administrator notifies such State that such program may not be authorized and, within ninety days following such notice and after opportunity for public hearing. he finds that (1) such State program is not equivalent to the Federal program under this subtitle, (2) such program is not consistent with the Federal or State programs applicable in other States, or (3) such program does not provide adequate enforcement of compliance with the requirements of this subtitle. In authorizing a State program. the Administrator may base his findings on the Federal program in effect one year prior to submission of a State's application or in effect on January 26, 1983, whichever is later. , [3006(b) amended by PL 98-616] "(c) Interim Authorization.- (1) Any State which has in existence a hazardous waste program pursuant to State law before the date ninety days after the date of promulgation of regulations under sections 3002, 3003, 3004, and 3005, may submit to the Administrator evidence of such existing program and may request a temporary authorization to carry out such program under this subtitle. The Administrator shall, if the evidence submitted shows the existing State program to be substantially equivalent to the Federal program under this subtitle, grant an interim authorization to the State to carry out such program in lieu of the Federal program pursuant to this subtitle for a period ending no later than January 31, 1986. [3006(c)(1) designated and amended by PL 98-616] [3006(c)(2)-(4) added by PL 98-616] "(2) The Administrator shall, by rule, establish a date for the expiration of interim authorization under this subsection. (3) Pending interim or final authorization of a State program for any State which reflects the amendments made by the Hazardous and Solid Waste Amendments of 1984, the State may enter into an agreement with the Administrator under which the State may assist in the administration of the requirements and prohibitions which take effect pursuant to such Amendments. "(4) In the case of a State permit program for any State which is authorized under subsection (b) or under this subsection, until such program is amended to reflect the amendments made by the Hazardous and Solid Waste Amendments of 1984 and such program amendments receive interim or final authorization, the Administrator shall have the authority in such State to issue or deny permits or those portions of permits affected by the requirements and prohibitions established by the Hazardous and Solid Waste Amendments of 1984. The Administrator shall coordinate with States the procedures for issuing such permits. "(d) Effect of State Permit.-Any action taken by a State under a hazardous waste program authorized under this section shall have the same force and effect as action taken by the Administrator under this subtitle. "(e) Withdrawal of Authorization.-Whenever the Administrator determines after public hearing that'a State is not administering and enforcing a program authorized under this section in accordance with requirements of this section, he shall so notify the State and, if appropriate corrective action is not taken within a reasonable time, not to exceed ninety days, the Administrator shall withdraw authorization of such program and establish a Federal program pursuant to this subtitle. The Administrator shall not withdraw authorization of any such program unless he shall first have notified the State, and made public, in writing, the reasons for such withdrawal. 71:3127 [3006(f) added by PL 98-616} "(f) AVAILABILITY OF INFORMATION-No State program may be authorized by the Administrator under this section unless- "(1) such program provides for the public availability of infor. mation obtained by the State regarding facilities and sites for the treatment, storage, and disposal of hazardous waste; and "(2) such information is available to the public in substantially the same manner. and to the same degree, as would be the case if the Administrator was carrying out the provisions of this subtitle in such State. [Editor's note: Section 226(b) of PL 98-616 provides: "(b) The amendment made by subsection (a) shall apply with respect to State programs, authorized under section 3006 before. on, or after the date of enactment of the Hazardous and Solid Waste Amendments of 1984 " Subsection (a) added 3006(f) of RCRA.) "(g) AMENDMENTS MADE BY 1984 Act.-(1) Any requirement or prohibition which is applicable to the generation. transportation. treatment, storage, or disposal of hazardous waste and which is imposed under this subtitle pursuant to the amendments made by the Hazardous and Solid Waste Amendments of 1984 shall take effect in each State having an interim or finally authorized State program on the same date as such requirement takes effect in other States. The Administrator shall carry out such requirement directly in each such State unless the State program is finally authorized (or is granted interim authorization as provided in paragraph (2)) with respect to such requirement. "(2) Any State which, before the date of the enactment of the Hazardous and Solid Waste Amendments of 1984 has an existing hazardous waste program which has been granted interim or final authorization under this section may submit to the Administrator evidence that such existing program contains (or has been amended to include) any requirement which is substantially equivalent to a requirement referred to in paragraph (1) and may request interim authorization to carry out that requirement under this subtitle. The Administrator shall. if the evidence submitted shows the State requirement to be substantially equivalent to the requirement referred to in paragraph (1). grant an interim authorization to the State to carry out such requirement in lieu of direct administration in the State by the Administrator of such requirement. [3006(g) added by PL 98-616] "Inspections "Sec. 3007. (a) Access Entry.-For purposes of developing or assisting in the development of any regulation or enforcing the provisions of this title, any person who generates, stores, treats, transports, disposes of, or otherwise handles or has handled hazardous wastes shall, upon request of any officer, employee or representative of the Environmental Protection Agency, duly designated by the Administrator, or upon request of any duly designated officer, employee or representative of a State having an authorized hazardous waste program, furnish information relating to such wastes and permit such person at all reasonable times to have access 10, and to copy all records relating to such wastes. For the purposes of developing or assisting in the development of any regulation or enforcing the provisions of this title, such officers, employees or representatives are authorized- "(1) to enter at reasonable times any establishment or other place where hazardous wastes are or have been generated, stored, treated, disposed of, or transported from; "(2) to inspect and obtain samples from any person of any such wastes and samples of any containers or labeling for such wastes. Each such inspection shall be commenced and completed with reasonable promptness. If the officer, employee or representative obtains any samples, prior to leaving the premises, he shall give to the owner, operator, or agent in charge a receipt describing the sample obtained and if requested a portion of each such sample equal in volume or weight to the portion retained. If any analysis is made of such samples, a copy of the results of such analysis shall be furnished promptly to the owner, operator, or agent in charge. [3007(a) amended by PL 96-482] "(b) Availability to Public.-(1) Any records, reports, or information (including records, reports, or information obtained by representatives of the Environmental Protection Agency) obtained from any person under this section shall be available to the public, except that upon a showing satisfactory to the Administrator (or the State, as the case may be) by any person that records. reports, or information, (including records, reports, or information obtained by representatives of the Environmental Protection Agency) or particular part thereof, to which the Administrator (or the State, as the case may be) or any officer. employee or representative thereof has access under this section if made public, would divulge information (including records, reports, or information obtained by representatives of the Environmental Protection Agency) entitled to protection under section 1905 of title 18 of the United States Code, such information or particular portion thereof shall be considered confidential in accordance with the purposes of that section, except that such record, report. document, or information may be disclosed to other officers, employees, or authorized representatives of the United State concerned with carrying out this Act, or when relevant in any proceeding under this Act. "(2) Any person not subject to the provisions of section 1905 of title 18 of the United States Code who knowingly and willfully divulges or discloses any information (including records, reports, or information obtained by representatives of the Environmental Protection Agency) entitled to protection under this subsection shall, upon conviction, be subject to a fine of not more than $5,000 or to imprisonment not to exceed one year. or both. "(3) In submitting data under this Act. a person required to provide such data may- Published by THE BUREAU OF NATIONAL AFFAIRS. INC., Washington. D.C. 20037 71:3128 "(A) designate the data which such person believes is entitled 10 protection under this subsection, and "(B) submit such designated data separately from other data submitted under this Act. A designation under this paragraph shall be made in writing and in such manner as the Administrator may prescribe. "(4) Notwithstanding any limitation contained in this section or any other provision of law, all information (including records, reports, or information obtained by representatives of the Environmental Protection Agency) reported to, or otherwise obtained by, the Administrator (or any representative of the Administrator) under this Act shall be made available, upon written request of any duly authorized committee of the Congress, to such committee (including records, reports, or information obtained by representatives of the Environmental Protection Agency). FEDERAL FACILITIES "(c) FEDERAL FACILITY INSPECTIONS-Beginning twelve months after the date of enactment of the Hazardous and Solid Waste Amendments of 1984. the Administrator shall. or in the case of a State with an authorized hazardous waste program the State may. undertake on an annual basis a thorough inspection of each facility for the treatment. storage. or disposal of hazardous waste which is owned or operated by a Federal agency to enforce its compliance with this subtitle and the regulations promulgated thereunder. The records of such inspections shall be available to the public as provided in subsection (b). [3007(c) added by PL 98-616] STATE-OPERATED FACILITIES "(d) STATE-OPERATED FACTLITIES-The Administrator shall annually undertake a thorough inspection of every facility for the treatment, storage. or disposal of hazardous waste which is operated by a State or local government for which . permit is required under section 3005 of this title. The records of such inspection shall be available to the public as provided in subsection (b). (3007(d) added by PL 98-616] "(e) MANDATORY INSPECTIONS-(1) The Administrator (or the State in the case of a State having an authorized hazardous waste program under this subtitle) shall commence a program to thoreughly inspect every facility for the treatment, storage. or disposal of hazardous waste for which a permit is required under section 3005 no less often than every two years as to its compliance with this subtitle (and the regulations promulgated under this subtitle). Such inspections shall commence not later than twelve months after the date of enactment of the Hazardous and Solid Waste Amendments of 1984. The Administrator shall. after notice and opportunity for public comment, promulgate regulations governing the minimum frequency and manner of such inspections. including the manner in which records of such inspections shall be maintained and the manner in which reports of such inspections shall be filed. The Administrator may distinguish between classes and categories of facilities commensurate with the risks posed by each class or category. "(2) Not later than six months after the date of enactment of the Hazardous and Solid Waste Amendments of 1984, the Administrator shall submit to the Congress a report on the potential for inspections of hazardous waste treatment, storage, or disposal facilities by nongovernmental inspectors as a supplement to inspections conducted by officers, employees, or representatives of the Environmental Protection Agency or States having authorized hazardous waste programs or operating under a cooperative agreement with the Administrator. Such report shall be prepared in cooperation with the States, insurance companies offering environmental impairment insurance, independent companies providing inspection services, and other such groups as appropriate. Such report shall contain recommendations on provisions and requirements for a program of private inspections to supplement governmental inspections. [3007(e) added by PL 98-616] "Federal Enforcement "Sec. 3008. (a) Compliance Orders.- (1) Except as provided in paragraph (2), whenever on the basis of any information the Administrator determines that any person has violated or is in violation of any requirement of this subtitle, the Administrator may issue an order assessing a civil penalty for any past or current violation, requiring compliance immediately or within a specified time period, or both, or the Administrator may commence a civil action in the United States district court in the district in which the violation occurred for appropriate relief, including a temporary or permanent injunction. [3008(a)(1) amended by PL 96-482; PL 98-616] "(2) In the case of a violation of any requirement of this subtitle where such violation occurs in a State which is authorized to carry out a hazardous waste program under section 3006, the Administrator shall give notice to the State in which such violation has occurred prior to issuing an order or commencing a civil action under this section. [3008(a)(2) amended by PL 96-482] "(8) Any order issued purmuant to this subsection may include a suspension or revocation of any permit immed by the Administrator . a State under this subtitle and shall state with reasonable specificity the nature of the vislation. Any penalty assessed in the order shall not exceed $25,000 per day of noncompliance for each violation of a requirement of this subtitle. In assessing such a penalty. the Administrator shall take into account the seriousness of the violation and any good faith efforts to comply with applicable requirements. [3008(a)(3) revised by PL 98-616] "(b) Public Hearing -Any order issued under this section shall become final unless, no later than thirty days after the order is served, the person or persons named therein request a public hearing. Upon such request the Administrator shall promptly conduct a public hearing. In connection with any proceeding under RESOURCE this section the Administrator may issue subpoenas for the attendance and testimony of witnesses and the production of relevent papers, books, and documents, and may promulgate rules for discovery procedures. [3008(b) amended by PL 96-482; PL 98-616] "(c) VIOLATION OF COMPLIANCE ORDERS-If a violator fails to take corrective action within the time specified in a compliance order. the Administrator may assess a civil penalty of not more than $25,000 for each day of continued noncompliance with the order and the Administrator may suspend or revoke any permit issued to the violator (whether issued by the Administrator or the State). [3008(c) amended by PL 96-482; revised by PL 98-616) "(d) Criminal Penalties.-Any person who- "(1) knowingly transports or causes to be transported any hazardous waste identified or listed under this subtitle to a facility which does not have a permit under this subtitle, or pursuant to title 1 of the Marine Protection, Research, and Sanctuaries Act (86 Stat. 1052). "(2) knowingly treats, stores, or disposes of any hazardous waste identified or listed under this subtitle- "(A) without a permit under this subtitle or pursuant to title 1 of the Marine Protection, Research, and Sanctuaries Act (86 Stat. 1052); or "(B) in knowing violation of any material condition or requirement of such permit; or "(C) in knowing violation of any material condition or requirement of any applicable interim status regulations or standards: "(3) knowingly omits material information or makes any false material statement or representation in any application. labal, manifest, record, report, permit. or other document filed. maintained, or used for purposes of compliance with regulations promulgated by the Administrator (or by a State in the case of an authorized State program) under this subtitle; "(4) knowingly generates, stores, treats, transports, disposes of, exports, or otherwise handles any hazardous waste (whether such activity took place before or takes place after the date of the anactment of this paragraph) and who knowingly destroys, alters. conceals. or fails to file any record. application. manifest, report, or other document required to be maintained or filed for purposes of compliance with regulations promulgated by the Administrator (or by a State in the case of an authorized State program) under this subtitle; "(5) knowingly transports without a manifact, or cames to be transported without 8 manifest, any hemrdous wants required by regulations promulgated under this subtitle (or by a State in the case of & State program authorized under this subtitle) to be accompanied by a manifast. or "(5) knowingly exports a hanardous waite identified or listed under this subtitle (A) without the consent of the receiving country or, (B) where there exists an international agreement between the United States and the government of the receiving country establishing notice, export. and enforcement procedures for the transportation, treatment, storage, and disposal of hasardous wastes, in a manner which is not in unformance with such agreement shall. upon conviction. be subject to a fine of not more than $50,000 for each day of violation. or imprionment not to exceed two years (five years in the case of a violation of paragraph (1) or (2)), or both If the conviction is for a violation committed after a first conviction of such person under this paragraph, the maximum punishment under the respective paragraph shall be doubled with respect to both fine and imprisonment. [3008(d) revised by PL 96-482; PL 98-616) "(e) KNOWING ENDANGERMENT-Any person who knowingly transports, treats, stores, disposes of, or exports any hazardous waste identified or listed under this subtitle in violation of paragraph (1). (2), (8). (4). (5), or (6) of subsection (d) of this section who knows at that time that he thereby places another person in imminent danger of death or serious bodily injury, shall. upon conviction. be subject to a fine of not more than $250,000 or imprisonment for not more than fifteen years, or both. A defendant that is an organisation shall, upon conviction of violating this subsection, be subject to a fine of not more than $1,000,000. [3008(e) added by PL 96-482; amended by PL 98-616] "(f) Special Rules.-For the purposes of subsection (e)- "(1) A person's state of mind is knowing with respect to- '(A) his conduct, if he is aware of the nature of his conduct; "(B) an existing circumstance, if he is aware or believes that the circumstance exists; or "(C) a result of his conduct, if he is aware or believes that his conduct is substantially certain to cause danger of death or serious bodily injury. "(2) In determining whether a defendant who is a natural person knew that his conduct placed another person in imminent danger of death or serious bodily injury- "(A) the person is responsible only for actual awareness or actual belief that he possessed; and "(B) knowledge possessed by a person other than the defendant but not by the defendant himself may not be attributed to the defendant; Provided, That in proving the defendant's possession of actual. knowledge, circumstantial evidence may be used, including evidence that the defendant took affirmative steps to shield himself from relevant information. "(3) It is an affirmative defense to a prosecution that the conduct charged was consented to by the person endangered and that the danger and conduct charged were reasonably foreseeable hazards of- "(A) an occupation, a business, or a profession; or 12-20-85 71:3130 "(B) medical treatment or medical or scientific experimentation conducted by professionally approved methods and such other person had been made aware of the risks involved prior to giving consent. The defendant may establish an affirmative defense under this subsection by a preponderance of the evidence. "(4) All general defenses, affirmative defenses, and bars to prosecution that may apply with respect to other Federal criminal offenses may apply under subsection (e) and shall be determined by the courts of the United States according to the principles of common law as they may be interpreted in the light of reason and experience. Concepts of justification and excuse applicable under this section may be developed in the light of reason and experience. "(5) The term 'organization' means a legal entity, other than a government, established or organized for any purpose, and such term includes a corporation, company, association, firm, partnership, joint stock company, foundation, institution, trust, society, union, or any other association of persons. "(6) The term 'serious bodily injury' means- "(A) bodily injury which involves a substantial risk of death; "(B) unconsciousness; "(C) extreme physical pain; "(D) protracted and obvious disfigurement; or "(E) protracted loss or impairment of the function of a bodily member, organ, or mental faculty. "(g) Civil Penalty.-Any person who violates any requirement of this subtitle shall be liable to the United States for a civil penalty in an amount not to exceed $25,000 for each such violation. Each day of such violation shall, for purposes of this subsection, constitute a separate violation. [3008(g) added by PL 96-482] "(h) INTEREM STATUS CORRECTIVE ACTION Oursens-(1) Whenever - the basis of any information the Administrator determines that there is or has been a release of hazardous waste into the environment from a facility authorized to operate under section 2005(e) of this subtitle, the Administrator may issue an order requiring correotive action or such other response measure - be deems necessary to protect human health or the environment or the Administrator may a civil action in the United States district court in the district in which the facility is located for appropriate relief, includbe a temporary or parmenent injunction. "(2) Any order issued under this subsection may include a surpensice or revocation of authorization to operate under section 3005(e) of this subtitle, shall state with reasonable specificity the nature of the required corrective action or other response measure, and shall specify a time for compliance. If any person named in an order fails to comply with the order. the Administrator may - and such person shall be liable to the United States for, a civil penalty in an amount not to exceed $25,000 for each day of noncompliance with the order. [3008(h) added by PL 98-616] "Retention of State Authority "Sec. 3009. Upon the effective date of regulations under this subtitle no State or political subdivision may impose any requirements less stringent than those authorized under this subtitle respecting the same matter as governed by such regulations, except that if application of a regulation with respect to any matter under this subtitle is postponed or enjoined by the action of any court, no State or political subdivision shall be prohibited from acting with respect to the same aspect of such matter until such time as such regulation takes effect. Nothing in this title shall be construed to prohibit any State or political subdivision thereof from imposing any requirements, including those for site selection, which are more stringent than those imposed by such regulations. Nothing in this title (or in any regulation adopted under this title) shall be construed to prohibit any State from requiring that the State be provided with a copy of each manifest used in connection with hazardous waste which is generated within that State or transported to a treatment, storage, or disposal facility within that State. [3009 amended by PL 96-482; PL 98-616] "Effective Date "Sec. 3010. (a) Preliminary Notification.-Not later than ninety days after promulgation of regulations under section 3001 identifying by its characteristics or listing any substance as hazardous waste subject to this subtitle, any person generating or transporting such substance or owning or operating a facility for treatment, storage, or disposal of such substance shall file with the Administrator (or with States having authorized hazardous waste permit programs under section 3006) a notification stating the location and general description of such activity and the identified or listed hazardous wastes handled by such person. Not later than fifteen months after the date of enactment of the Hazardous and Solid Waste Amendments of 1984- "(1) The owner or operator of any facility which produces a fuel (A) from any hazardous waste identified or listed under section 3001, (B) from such hazardous waste identified or listed under section 3001 and any other material, (C) from used oil, or (D) from used oil and any other material: poses of energy recovery any fuel produced as provided in paragraph (1) or any fuel which otherwise contains used oil or any hazardous waste identified or listed under section 3001; and posal) shall take effect on the date SIX months aner the date of promulgation thereof (or six months after the date of revision in the case of any regulation which is revised after the date required for promulgation thereof). At the time a regulation is promulgated, the Administrator may provide for a shorter period prior to the effective date, or an immediate effective date for: "(1) a regulation with which the Administrator finds the regulated community does not need six months to come into compliance: "(2) a regulation which responds to an emergency situation; or "(3) other good cause found and published with the regulation. [3010(b) amended by PL 98-616] "(3) any person who distributes or markets any fuel which is produced as provided in paragraph (1) or any fuel which otherwise ontains used oil or any hazardous waste identified or listed under section 3001 shall file with the Administrator (and with the State in the case of a State with an authorized hazardous waste program) a notification stating the location and general description of the facility, together with a description of the identified or listed hazardous waste involved and, in the case of a facility referred to in paragraph (1) or (2), a description of the production or energy recovery activity carried out at the facility and such other information as the Administrator deems necessary. For purposes of the preceding provisions, the term "hazardous waste listed under section 3001' also includes any commercial chemical product which is listed under section 3001 and which, in lieu of its original intended use, is (i) produced for use as (or as a component of) a fuel, (ii) distributed for use as a fuel, or (iii) burned as a fuel. Notification shall not be required under the second sentence of this subsection in the case of facilities (such as residential boilders) where the Administrator determines that such notification is not necessary in order for the Administrator to obtain sufficient information respecting current practices of facilities using hazardous waste for energy recovery. Nothing in this subsection shall be construed to affect or impair the provisions of section 3001(b)(3). Nothing in this subsection shall affect regulatory determinations under section 3014. In revising any regulation under section 3001 identifying additional characteristics of hazardous waste or listing any additional substance as hazardous waste subject to this subtitle, the Administrator may require any person referred to in the preceding provisions to file with the Administrator (or with States having authorized hazardous waste permit programs under section 3006) the notification described in the preceding provisions. Not more than one such notification shall be required to be filed with respect to the same substance. No identified or listed hazardous waste subject to this subtitle may be transported, treated, stored, or disposed of unless notification has been given as required under this subsection. "Authorization of Assistance to States "Sec. 3011. (a) Authorization.-There is authorized to be appropriated $25,000,000 for each of the fiscal years 1978 and 1979, $20,000,000 for fiscal year 1980, $35,000,000 for fiscal year 1981, $40,000,000 for the fiscal year 1982, $55,000,000 for the fiscal year 1985, $60,000,000 for the fiscal year 1986, $60,000,000 for the fiscal year 1987, and $60,000,000 for the fiscal year 1988 to be used to make grants to the States for purposes of assisting the States in the development and implementation of authorized State hazardous waste programs. [3011(a) amended by PL 96-482; PL 98-616] "(b) Allocation.-Amounts authorized to be appropriated under subsection (a) shall be allocated among the States on the basis of regulations promulgated by the Administrator, after consultation with the States, which take into account, the extent to which hazardous waste is generated, transported, treated, stored, and disposed of within such State, the extent of exposure of human beings and the environment within such State to such waste, and such other factors as the Administrator deems appropriate. "(c) Activities Included.-State hazardous waste programs for which grants may be made under subsection (a) may include (but shall not be limited to) planning for hazadous waste treatment, storage and disposal facilities, and the development and execution of programs to protect health and the environment from inactive facilities which may contain hazardous waste. [3011(c) added by PL 96-482) "(b) Effective Date of Regulation.-The regulations under this subtitle respecting requirements applicable to the generation, transportation, treatment, storage, or [3010(a) amended by PL 96-482; revised by PL 98-616] "Hazardous Waste Site Inventory notify the State. If within ninety days following such notification, the State program has not been revised or amended in such manner as will adequately provide such information, the Administrator shall carry out the inventory program in such State. In any such case- "Sec. 3012. (a) State Inventory Programs.-Each State shall, as expeditiously as practicable, undertake a continuing program to compile, publish, and submit to the Administrator an inventory describing the location of each site within such State at which hazardous waste has at any time been stored or disposed of. Such inventory shall contain- "(3) the name and address, or corporate headquarters of, the owner of each such site, determined as of the date of preparation of the inventory; "(2) such information relating to the amount, nature, and toxicity of the hazardous waste at each such site as may be practicable to obtain and as may be necessary to determine the extent of any health hazard which may be associated with such site; "(4) an identification of the types or techniques of waste treatment or disposal which have been used at each such site; and "(5) information concerning the current status of the site, including information respecting whether or not hazardous waste is currently being treated or disposed of at such site (and if not, the date on which such activity ceased) and information respecting the nature of any other activity currently carried out at such site. For purposes of assisting the States in compiling information under this section, the Administrator shall make available to each State undertaking a program under this section such information as is available to him concerning the items specified in paragraphs (1) through (5) with respect to the sites within such State, including such information as the Administrator is able to obtain from other agencies or departments of the United States and from surveys and studies carried out by any committee or subcommittee of the Congress. Any State may exercise the authority of section 3007 for purposes of this section in the same manner and to the same extent as provided in such section in the case of States having an authorized hazardous waste program, and any State may by order require any person to submit such information as may be necessary to compile the data referred to in paragraphs (1) through (5). "(1) a description of the location of the sites at which any such storage or disposal has taken place before the date on which permits are required under section 3005 for such storage or disposal; "(b) Environmental Protection Agency Program.-If the Administrator determines that any State program under subsection (a) is not adequately providing information respecting the sites in such State referred to in subsection (a), the Administrator shall "(I) the Administrator shall have the authorities provided with respect to State programs under subsection (a); "(2) the funds allocated under subsection (c) for grants to States under this section may be used by the Administrator for carrying out such program in such State; and "(3) no further expenditure may be made for grants to such State under this section until such time as the Administrator determines that such State is carrying out, or will carry out, an inventory program which meets the requirements of this section. "(c) Grants.-(1) Upon receipt of an application submitted by any State to carry out a program under this section, the Administrator may make grants to the States for purposes of carrying out such a program. Grants under this section shall be allocated among the several States by the Administrator based upon such regulations as he prescribes to carry out the purposes of this section. The Administrator may make grants to any State which has conducted an inventory program which effectively carried out the purposes of this section before the date of the enactment of the Solid Waste Disposal Act Amendments of 1980 to reimburse such State for all, or any portion of, the costs incurred by such State in conducting such program. "(2) There are authorized to be appropriated to carry out this section $25,000,000 for each of the fiscal years 1985 through 1988. (3012(c)(2) amended by PL 98-616] "(d) No Impediment to Immediate Remedial Action. -Nothing in this section shall be construed to provide that the Administrator or any State should, pending completion of the inventory required under this section, postpone undertaking any enforcement or remedial action with respect to any site at which hazardous waste has been treated, stored, or disposed of. [3012 added by PL 96-482] "Monitoring, Analysis, and Testing "Sec. 3013. (a) Authority of Administrators.-I the Administrator determines, upon receipt of any information, that- "()) the presence of any hazardous waste at a facility or site at which hazardous waste is, or has been, stored, treated, or disposed of, or 71:3133 "(2) the release of any such waste from such facility or site may present a substantial hazard to human health or the environment, he may issue an order requiring the owner or operator of such facility or site to conduct such monitoring, testing, analysis, and reporting with respect to such facility or site as the Administrator deems reasonable 10 ascertain the nature and extent of such hazard. "(b) Previous Owners and Operators.-In the case of any facility or site not in operation at the time a determination is made under subsection (a) with respect to the facility or site, if the Administrator finds that the owner of such facility or site could not reasonably be expected to have actual knowledge of the presence of hazardous waste at such facility or site and of its potential for release, he may issue an order requiring the most recent previous owner or operator of such facility or site who could reasonably be expected to have such actual knowledge to carry out the actions referred to in subsection (a). "(c) Proposal.-An order under subsection (a) or (b) shall require the person to whom such order is issued to submit to the Administrator within 30 days from the issuance of such order a proposal for carrying out the required monitoring, testing, analysis, and reporting. The Administrator may, after providing such person with an opportunity 10 confer with the Administrator respecting such proposal, require such person to carry out such monitoring, testing, analysis, and reporting in accordance with such proposal, and such modifications in such proposal as the Administrator deems reasonable to ascertain the nature and extent of the hazard. "(d) Monitoring, Etc., Carried Out by Administrator.-(1) If the Administrator determines that no owner or operator referred to in subsection (a) or (b) is able to conduct monitoring, testing, analysis, or reporting satisfactory to the Administrator, if the Administrator deems any such action carried out by an owner or operator to be unsatisfactory, or if the Administrator cannot initially determine that there is an owner or operator referred to in subsection (a) or (b) who is able to conduct such monitoring, testing, analysis, or reporting, he may- "(A) conduct monitoring, testing, or analysis (or any combination thereof) which he deems reasonable to ascertain the nature and extent of the hazard associated with the site concerned, or "(B) authorize a State or local authority or other person to carry out any such action, and require, by order, the owner or operator referred to in subsection (a) or (b) to reimburse the Administrator or other authority or person for the costs of such activity. "(2) No order may be issued under this subsection requiring reimbursement of the costs of any action carried out by the Administrator which confirms the results of an order issued under subsection (a) or (b). "(3) For purposes of carrying out this subsection, the Administrator or any authority or other person authorized under paragraph (1), may exercise the authorities set forth in section 3007. "(e) Enforcement.-The Administrator may commence a civil action against any person who fails or refuses to comply with any order issued under this section. Such action shall be brought in the United States district court in which the defendant is located, resides, or is doing business. Such court shall have jurisdiction to require compliance with such order and to assess a civil penalty of not to exceed $5,000 for each day during which such failure or refusal occurs. [3013 added by PL 96-482] "Restrictions on Recycled Oil "Sec. 3014. (a) In General-Not later than one year after the date of the enactment of this section, the Administrator shall promulgate regulations establishing such performance standards and other requirements as may be necessary to protect the public health and the environment from hazards associated with recycled oil. In developing such regulations, the Administrator shall conduct an analysis of the economic impact of the regulations on the oil recycling industry. The Administrator shall ensure that such regulations do not discourage the recovery or recycling of used oil, consistent with the protection of human health and the environment. [3012 added by PL 96-463; amended and redesignated as 3014(a) by PL 98-616] "(b) IDENTIFICATION on LATING OF Used On. AS HAZARDOUS WASTE-Not later than twelve months after the date of enactment of the Hazardous and Solid Waste Amendments of 1984 the Adminintrator shall propose whether to list or identify used automobile and truck crankcase oil as hazardous waste under section 3001. Not later than twenty-four months after such date of enactment. the Administrator shall make a final determination whether to list or identify used automobile and truck crankense oil and other used oil as hazardous wastes under section 3001. [3014(b) and (c) added by PL 98-616] "(c) USED On WHICH is Recream.-(1) With respect to generators and transporters of used oil identified or listed as a hazardous waste under section 3001. the standards promulgated under section 2001(d). 3002. and 3003 of this subtitle shall not apply to such used oil if such used oil is recycled. "(2XA) In the case of used oil which is exempt under paragraph (1), not later than twenty-four months after the date of enactment of the Hazardous and Solid Waste Amendments of 1984. the Administrator shall promulgate such standards under this subsection regarding the generation and transportation of used oil which is recycled as may be necessary to protect human health and the environment. In promulgating such regulations with respect to generators, the Administrator shall take into account the effect of such regulations on environmentally acceptable types of used oil recycling and the effect of such regulations on small quantity generators and generators which are small businesses (as defined by the Administrator). "(B) The regulations promulgated under this subsection shall provide that no generator of used oil which is exempt under paragraph (1) from the standards promulgated under section 3001(d), 3002, and 3003 shall be subject to any manifest requirement or any associated recordkeeping and reporting requirement with respect to such used oil if such generator- "(i) either- "(I) enters into an agreement or other arrangement (including an agreement or arrangement with an independent transporter or with an agent of the recycler) for delivery of such used oil to a recycling facility which has a permit under section 3005(c) (or for which a valid permit is deemed to be in effect under subsection (d)), or "(II) recycles such used oil at one or more facilities of the generator which has such a permit under section 3005 of this subtitle (or for which a valid permit is deemed to have been issued under subsection (d) of this section); "(ii) such used oil is not mixed by the generator with other types of hazardous wastes; and "(iii) the generator maintains such records relating to such used oil, including records of agreements or other arrangements for delivery of such used oil to any recycling facility referred to in clause (i)(I), as the Administrator deems necessary to protect human health and the environment. "(3) The regulations under this subsection regarding the transportation of used oil which is exempt from the standards promulgated under section 3001(d). 3002, and 3003 under paragraph (1) shall require the transporters of such used oil to deliver such used oil to a facility which has a valid permit under section 3005 of this subtitle or which is deemed to have a valid permit under subsection (d) of this section. The Administrator shall also establish other standards for such transporters as may be necessary to protect human health and the environment. "(d) PERMITS-(1) The owner or operator of a facility which recycles used oil which is exempt under subsection (c)(1), shall be deemed to have a permit under this subsection for all such treatment or recycling (and any associated tank or container storage) if such owner and operator comply with standards promulgated by the Administrator under section 3004; except that the Administrator may require such owners and operators to obtain an individual permit under section 3005(c) if he determines that an individual permit is necessary to protect human health and the environment. "(2) Notwithstanding any other provision of law, any generator who recycles used oil which is exempt under subsection (cX1) shall not be required to obtain a permit under section 3005(c) with respect to such used oil until the Administrator has promulgated standards under section 3004 regarding the recycling of such used oil. [3015 through 3019 added by PL 98-616] "EXPANSION DURING INTERIM STATUS "Sec. 3015. (a) WASTE Puss-The owner or operator of a waste pile qualifying for the authorization to operate under section 3005(e) shall be subject to the same requirements for liners and leachate collection systems or equivalent protection provided in regulations promulgated by the Administrator under section 3004 before October 1, 1982. or revised under section 3004(o) (relating to minimum technological requirements), for new facilities receiving individual permits under subsection (c) of section 3005, with respect to each new unit. replacement of an existing unit, or lateral expansion of an existing unit that is within the waste management area identified in the permit application submitted under section 3005, and with respect to waste received beginning six months after the date of enactment of the Hazardous and Solid Waste Amendments of 1984. "(b) LANDFILLS AND SURFACE IMPOUNDMENTS.-(1) The owner or operator of a landfill or surface impoundment qualifying for the authorization to operate under section 3005(e) shall be subject to the requirements of section 3004(o) (relating to minimum technological requirements), with respect to each new unit, replacement of an existing unit, or lateral expansion of an existing unit that is within the waste management area identified in the permit application submitted under this section, and with respect to waste received beginning 6 months after the date of enactment of the Hazardous and Solid Waste Amendments of 1984. "(2) The owner or operator of each unit referred to in paragraph (1) shall notify the Administrator (or the State, if appropriate) at least sixty days prior to receiving waste. The Administrator (or the State) shall require the filing, within six months of receipt of such notice, of an application for a final determination regarding the issuance of a permit for each facility submitting such notice. "(3) In the case of any unit in which the liner and leachate collection system has been installed pursuant to the requirements of this section and in good faith compliance with the Administrator's regulations and guidance documents governing liners and leachate collection systems, no liner or leachate collection system which is different from that which was so installed pursuant to this section shall be required for such unit by the Administrator when issuing the first permit under section 3005 to such facility, except that the Administrator shall not be precluded from requiring installation of a new liner when the Administrator has reason to believe that any liner installed pursuant to the requirements of this section is leaking. The Administrator may, under section 3004, amend the requirements for liners and leachate collection systems required under this section as may be necessary to provide additional protection for human health and the environment. "INVENTORY OF FEDERAL AGENCY MAZARDOUS WASTE FACILITIES "Sac. 3016. (a) Each Federal agency shall undertake a continuing program to compile, publish, and submit to the Administrator (and to the State in the case of sites in States having an authorized hazardous waste program) an inventory of each site which the Federal agency owns or operates or has owned or operated at which hazardous waste is stored. treated, or disposed of or has been disposed of at any time. The inventory shall be submitted every two years beginning January 31, 1986. Such inventory shall be available to the public as provided in section 3007(b). Information previously submitted by a Federal agency under section 103 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, or under section 3005 or 3010 of this Act, or under this section need not be resubmitted except that the agency shall update any previous submission to reflect the latest available data and information. The inventory shall include each of the following: "(1) A description of the location of each site at which any such treatment, storage, or disposal has taken place before the date on which permits are required under section 3005 for such storage, treatment, or disposal. and where hazardous waste has been disposed, a description of hydrogeology of the site and the location of withdrawal walls and surface water within one mile of the site. "(2) Such information relating to the amount, nature, and toxicity of the hazardous waste in each site - may be necessary to determine the extent of any health harard which may be associated with any site. "(8) Information on the known nature and extent of environmental conternination at each site, including 8 description of the monitoring data obtained. "(4) Information concerning the current status of the site, including information respecting whether or not hazardous waste is currently being tranted, stored, or disposed of at such site (and if not, the date on which such activity cassed) and information respecting the nature of any other activity currently carried out at such site. of sites at which hazardous waste has been disposed and environmental monitoring data has not been obtained, and the reasons for the lack of monitoring data at each site. "(6) A description of response actions undertaken or contemplated at contaminated sites. "(7) An identification of the types of techniques of waste treatment, storage, or disposal which have been used at each site. "(8) The name and address and responsible Federal agency for each site, determined as of the date of preparation of the inventory. "(b) ENVIRONMENTAL PROTECTION AGENCY PROGRAM.-If the Administrator determines that any Federal agency under subsection (a) is not adequately providing information respecting the sites referred to in subsection (a), the Administrator shall notify the chief official of such agency. If within ninety days following such notification, the Federal agency has not undertaken & program to adequately provide such information, the Administrator shall carry out the inventory program for such agency. "EXPORT OF HAZARDOUS WASTE "Sec. 3017. (a) IN GENERAL-Beginning twenty-four months after the date of enactment of the Hazardous and Solid Waste Amendments of 1984, no person shall export any hazardous waste identified or listed under this subtitle unless "(1XA) such person has provided the notification required in subsection (c) of this section, "(B) the government of the receiving country has consented to accept such hazardous waste, "(C) a copy of the receiving country's written consent is attached to the manifest accompanying each waste shipment, and "(D) the shipment conforms with the terms of the consent of the government of the receiving country required pursuant to subsection (e), or "(2) the United States and the government of the receiving country have entered into an agreement as provided for in subsection (f) and the shipment conforms with the terms of such agreement. "(b) REGULATIONS-Not later than twelve months after the date of enactment of the Hazardous and Solid Waste Amendments of 1984, the Administrator shall promulgate the regulations necessary to implement this section. Such regulations shall become effective one hundred and eighty days after promulgation. "(c) NOTIFICATION-Any person who intends to export a hazardous waste identified or listed under this subtitle beginning twelve months after the date of enactment of the Hazardous and Solid Waste Amendments of 1984, shall. before such hazardous waste is scheduled to leave the United States, provide notification to the Administrator. Such notification shall contain the following information: "(1) the name and address of the exporter, "(2) the types and estimated quantities of hazardous waste to be exported: "(3) the estimated frequency or rate at which such waste is to be exported; and the period of time over which such waste is to be exported: "(4) the ports of entry, "(5) a description of the manner in which such hazardous wants will be transported to and treated, stored, or disposed in the receiving country; and **(6) the name and address of the ultimate treatment, storage or disposal facility. "(d) PROCEDURES FOR REQUESTING CONSENT OF THE RECEIVING COUNTRY-Within thirty days of the Administrator's receipt of a complete notification under this section. the Secretary of State, acting on behalf of the Administrator, shall- "(1) forward a copy of the notification to the government of the receiving country, the export of hazardous waste unless the receiving country consents to accept the hazardous waste; "(3) request the government to provide the Secretary with a written consent or objection to the terms of the notification: and "(4) forward to the government of the receiving country a description of the Federal regulations which would apply to the treatment, storage, and disposal of the hazardous waste in the United States. "(e) CONVEYANCE OF WRITTEN CONSENT TO EXPORTER-Within thirty days of receipt by the Secretary of State of the receiving country's written consent or objection (or any subsequent communication withdrawing a prior consent or objection), the Administrator shall forward such a consent, objection, or other communication to the exporter. "(f) INTERNATIONAL AGREEMENTS-Where there exists an internetional agreement between the United States and the government of the receiving country establishing notice, export, and enforcement procedures for the transportation, treatment, storage, and disposal of hazardous wastes, only the requirements of subsections (a)(2) and (g) shall apply. "(g) REPORTS-After the date of enactment of the Hazardous and Solid Waste Amendments of 1984, any person who exports any hazardous waste identified or listed under section 3001 of this subtitle shall file with the Administrator no later than March 1 of each year, a report summarizing the types, quantities, frequency, and ultimate destination of all such hazardous waste exported during the previous calendar year. "(b) OTHER STANDARDS-Nothing in this section shall preclude the Administrator from establishing other standards for the export of hazardous wastes under section 3002 or section 3003 of this subtitle. "DOMESTIC SEWAGE "Sac. 3018. (a) REPORT.-The Administrator shall. not later than 15 months after the date of enactment of the Hazardous and Solid Waste Amendments of 1984. submit a report to the Congress concerning those substances identified or listed under section 3001 which are not regulated under this subtitle by reason of the exclusion for mistures of domestic sewage and other wastes that pass through a sewer system to a publicly owned treatment works. Such report shall include the types, size and number of generators which dispose of such substances in this manner, the types and quantities disposed of in this manner, and the identification of significant generators, wastes, and waste constituents not regulated under existing Federal law or regulated in a manner sufficient to protect human health and the environment. *(b) REVISIONS OF REGULATIONS-Within eighteen months after submitting the report specified in subsection (a), the Administrator shall revise existing regulations and promulgate such additional regulations pursuant to this subtitle (or any other authority of the Administrator, including section 307 of the Federal Water Pollution Control Act) as are necessary to assure that substances identified or listed under section 3001 which pass through a newer system to a publicly owned treatment works are adequately controlled to protect human health and the environment. "(c) REPORT or WASTEWATER LACOONS-The Administrator shall. within thirty-six months after the date of the enactment of the Hazardous and Solid Waste Amendments of 1964, submit a report to Congress concerning wastewater lagoons at publicly owned treatment works and their effect on groundwater quality. Such report shall include- "(1) the number and size of such lagoons: "(2) the types and quantities of wants contained in such ingoons; ((3) the extent to which such waste has been or may be released from such lagoone and contaminate ground water, and "(4) available alternatives for preventing or controlling such releases. The Administrator may utilize the authority of sections 3007 and 3013 for the purpose of completing such report. Published by THE BUREAU OF NATIONAL AFFAIRS, INC., Washington D.C. 20037 "(d) APPLICATION OF SECTION 3010 AND SECTION 3007.-The provisions of sections 3007 and 3010 shall apply to solid or dissolved materials in domestic sewage to the same extent and in the same manner as such provisions apply to hazardous waste. "EXPOSURE INFORMATION AND HEALTH ASSESSMENTS "Sac. 3019. (a) EXPOSURE INFORMATION-Beginning on the date nine months after the enactment of the Hazardous and Solid Waste Amendments of 1984. each application for a final determination regarding a permit under section 3005(c) for a landfill or surface impoundment shall be accompanied by information reasonably ascertainable by the owner or operator on the potential for the public to be exposed to hazardous wastes or hazardous constituents through releases related to the unit. At a minimum, such information must address: "(1) reasonably foreseeable potential releases from both normal operations and accidents at the unit, including releases associated with transportation to or from the unit; "(2) the potential pathways of buman exposure to hazardous wastes or constituents resulting from the releases described under paragraph (1); and "(8) the potential magnitude and nature of the human exposure resulting from such releases. The owner or operator of a landfill or surface impoundment for which an application for such a final determination under section 3005(c) has been submitted prior to the date of enactment of the Hazardous and Solid Waste Amendments of 1984 shall submit the information required by this subsection to the Administrator (or the State, in the case of a State with an authorized program) DO later than the date nine months after such date of enactment. "(b) HEALTH ASSESSMENTS.-(1) The Administrator (or the State, in the case of & State with an authorized program) shall make the information required by subsection (a), together with other relevant information, available to the Agency for Toxic Substances and Disease Registry established by section 104(i) of the Comprehensive Environmental Response, Compensation and Liability Act of 1980. "(2) Whenever in the judgment of the Administrator, or the State (in the case of a State with an authorized program), a landfill or a surface impoundment poses a substantial potential risk to human health, due to the existence of releases of hazardous constituents, the magnitude of contamination with hazardous constituents which may be the result of a release, or the magnitude of the population exposed to such release or contamination, the Administrator or the State (with the concurrence of the Administrator) may request the Administrator of the Agency for Toxic Substances and Disease Registry to conduct a health assessment in connection with such facility and take other appropriate action with respect to such risks as authorized by section 104 (b) and (i) of the Comprehensive Environmental Response, Compensation and Liability Act of 1980. If funds are provided in connection with such request the Administrator of such Agency shall conduct such health assessment. "(c) Memores OF THE PUBLIC-Any member of the public may submit evidence of releases of or exposure to hazardous constituents from such a facility, or as to the risks or health effects associated with such releases or exposure, to the Administrator of the Agency for Toxic Substances and Disease Registry, the Administrator, or the State (in the case of a State with an authorised program). "(d) PRIORITY.-In determining the order in which to conduct health assessments under this subsection, the Administrator of the Agency for Toxic Substances and Disease Registry shall give priority to those facilities or sites at which there is documented evidence of release of hazardous constituents, at which the potential risk to human health appears highest, and for which in the judgment of the Administrator of such Agency existing health assessment data is inadequate to assess the potential risk to human health as provided in subsection (f). "(e) PERIODIC REPORTS-The Administrator of such Agency shall issue periodic reports which include the results of all the assessments carried out under this section. Such assessments or other activities shall be reported after appropriate peer review. "(f) DEPINITION.-For the purposes of this section, the term health assessments' shall include preliminary assessments of the potential risk to human health posed by individual sites and facilities subject to this section, based on such factors as the nature and extent of contamination, the existence of potential for pathways of human exposure (including ground or surface water contemination, air emissions, and food chain contamination), the size and potential susceptibility of the community within the likely pathways of exposure, the comparison of expected human exposure levels to the short-term and long-term health effects associated with identified contaminants and any available recommended exposure or toler. ance limits for such contaminants, and the comparison of existing morbidity and mortality data on diseases that may be amoriated with the observed levels of exposure. The assessment shall include an evaluation of the risks to the potentially affected population from all sources of such contaminants, including known point or nonpoint sources other than the site or facility in question. A purpose of such preliminary assessments shall be to help determine whether fullscale health or epidemiological studies and medical evaluations of exposed populations shall be undertaken. "(g) COST RECOVERY.-In any case in which a health assessment performed under this section discloses the exposure of a population to the release of a hazardous substance, the costs of such health assessment may be recovered as a cost of response under section 107 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 from persons causing or contributing to such release of such hazardous substance or, in the case of multiple releases contributing to such exposure, to all such release.". "Subtitle D-State or Regional Solid Waste Plans "Objectives of Subtitle "Sec. 4001. The objectives of this subtitle are to assist in developing and encouraging methods for the disposal of solid waste which are environmentally sound and which maximize the utilization of valuable resources including energy and materials which are recoverable from solid waste and to encourage resource conservation. Such objectives are to be accomplished through Federal technical and financial assistance to States or regional authorities for comprehensive planning pursuant to Federal guidelines designed to foster cooperation among Federal, State, and local governments and private industry. In developing such comprehensive plans, it is the intention of this Act that in determining the size of the waste-to-energy facility, adequate provision shall be given to the present and reasonably anticipate future needs, including those needs created by thorough implementation of section 6002(h), of the recycling and resource recovery interest within the area encompassed by the planning process. (400) amended by PL 96-482; PL 98-616] ANEJO C-9 Subtitulo G Resource Conservation and Recovery Act (RCRA) Miscellaneous Provisions Section 7003 (Imminent Hazard) S-722 71:3151 "(g) TRANSPORTERS.-A transporter shall not be deemed to have contributed or to be contributing to the handling. storage, treatment, or disposal, referred to in subsection (aX1)(B) taking place after such solid waste or hazardous waste has left the possession or control of such transporter, if the transportation of such waste was under a sole contractual arrangement arising from a published tariff and acceptance for carriage by common carrier by rail and such transporter has exercised due care in the past or present handling. storage, treatment, transportation and disposal of such waste. (7002(g) added by PL 98-616] "Imminent Hazard "Sec. 7003. (a) Authority of Administrator.-Notwithstanding any other provision of this Act, upon receipt of evidence that the past or present handling, storage, treatment, transportation or disposal of any solid waste or hazardous waste may present an imminent and substantial endangerment to health or the environment, the Administrator may bring suit on behalf of the United States in the appropriate district court against any person (including any past or present generator, past or present transporter, or past or present owner or operator of a treatment, storage or disposal facility) who has contributed or who is contributing to such handling, storage, treatment, transportation or disposal to restrain such person from such handling. storage, treatment, transportation, or disposal to order such person to take such other action as may be necessary, or both. A transporter shall not be deemed to have contributed or to be contributing to such handling, storage, treatment, or disposal taking place after such solid waste or hazardous waste has left the possession or control of such transporter if the transportation of such waste was under a sole contractural arrangement arising from a published tariff and acceptance for carriage by common carrier by rail and such transporter has exercised due care in the past or present handling, storage, treatment, transportation and disposal of such waste. The Administrator shall provide notice to the affected State of any such suit. The Administrator may also, after notice to the affected State, take other action under this section including, but not limited to, Issuing such orders as may be necessary to protect public health and the environment. [7003(a) designated and amended by PL 96-482; amended by PL 98-616] "(b) Violations.-Any person who willfully violates, or fails or refuses to comply with, any order of the Administrator under subsection (a) may, in an action brought in the appropriate United States district court to enforce such order, be fined not more than $5,000 for each day in which such violation occurs or such failure to comply continues. [7003(b) added by PL 96-482] "(c) IMMEDIATE Nonce-Upon receipt of information that there is hazardous waste at any site which has presented an imminent and substantial endangerment to human health or the environment. the Administrator shall provide immediate notice to the appropriate local government agencies. In addition, the Administrator shall require notice of such endangerment to be promptly posted at the site where the waste is located. (7003(c) added by PL 98-616] "(d) PUBLIC PARTICIPATION IN SETTLEMENTE-Whenever the United States or the Administrator proposes to covenant not to sue or to forbear from suit or to settle any claim arising under this section, notice, and opportunity for a public meeting in the affected area, and a reasonable opportunity to comment on the proposed settlement prior to its final entry shall be afforded to the public. The decision of the United States or the Administrator to enter into or not to enter into such Consent Decree, covenant or agreement shall not constitute a final agency action subject to judicial review under this Act or the Administrative Procedure Act. [7003(d) added by PL 98-616] "Petition for Regulations; Public Participation "Sec. 7004. (a) Petition.-Any person may petition the Administrator for the promulgation, amendment, or repeal of any regulation under this Act. Within a reasonable time following receipt of such petition, the Administrator shall take action with respect to such petition and shall publish notice of such action in the Federal Register together with the reasons therefor. "(b)(1) Public Participation.-Public participation in the development, revision, implementation, and enforcement of any regulation, guideline, information, or program under this Act shall be provided for, encouraged, and assisted by the Administrator and the States. The Administrator, in cooperation with the States, shall develop and publish minimum guidelines for public participation in such processes. [7004(b)(1) designated by PL 96-482] "(2) Before the issuing of a permit to any person with any respect to any facility for the treatment, storage, or disposal of hazardous wastes under section 3005, the Administrator shall- "(A) cause to be published in major local newspapers of general circulation and broadcast over local radio stations notice of the agency's intention to issue such permit, and "(B) transmit in writing notice of the agency's intention to issue such permit to each unit of local government having jurisdiction over the area in which such facility if proposed to be located and to each State agency having any authority under State law with respect to the construction or operation of such facility. If within 45 days the Administrator receives written notice of opposition to the agency's intention to issue such permit and a request for a hearing, or if the Administrator determines on his own initiative, he shall hold an informal public hearing (including an opportu- ANEJO C-10 40 CFR Parte 112 Oil Pollution Prevention ENVIRONMENTAL PROTECTION AGENCY REGULATIONS ON OIL POLLUTION PREVENTION (40 CFR 112; 38 FR 34164, December 11, 1973; Amended by 39 FR 31602, August 29, 1974; 41 FR 12657, March 26, 1976) PART 112-OIL POLLUTION PREVENTION Non-transportation Related Onshore and Offshore Facilities AUTHORITY: Secs. 311 (j) (1) (c). $11(j) (2). 501(a). Federal Water Pollution Control Act (Sen. 2. Pub. L 92-500, 86 Stat. 810 et seq. (83 U.S.C. 1251 et seq.)): Sec. 4(b). Pub. L 92-500, 06 Stat. 697; 5 U.S.C. Reorg. Plan of 1970 No. 3 (1070). $5 PR 16623, 3 CPR 1966- 1970 Comp.; E.O. 11735. as PR 21243. 3 CFR. I 112.1 General applicability. (a) This part establishes procedures. methods and equipment and other requirements for equipment to prevent the discharge of oil from non-transportstion-related onshore and offshore facillties into or upon the navigable waters of the United States or adjoining shorelines. (b) Except as provided in paragraph (d) of this section, this part applies to owners or operators of non-transportstion-related onshore and offahore facilities engaged in drilling. producing. gathering. storing. processing, refining. transferring. distributing or consuming oil and off products, and which, due to their location, could reasonably be expected to discharge off in harmful quantitles. as defined in Part 110 of this chapter, into or upon the navigable waters of the United States or adjoining shorelines. (c) As provided in sec. 313 (86 Stat. 875) departments, agencies, and instrumentalities of the Federal government are subject to these regulations to the same extent M any person, except for the provisions of I 112.6. (d) This part does not apply to: (1) Facilities, equipment or operations which are not subject to the jurisdiction of the Environmental Protection Agency, as follows: (A) onshore and offshore facilities. which, due to their location, could not reasonably be expected to discharge off into or upon the navigable waters of the United States or adjoining shorelines. This determination shall be based solely upon a consideration of the geographical. locational aspects of the facility (such as proximity to navigable waters or adjoining shorelines, land contour, drainage. etc.) and shall exclude consideration of manmade features such as dikes, equipment or other structures which may serve to restrain, hinder. contain. or otherwise prevent a discharge of of from reaching navigable waters of the United States or adjoining shorelines: and (B) equipment or operations of vessels or transportation-related onshore and offshore facilities which are subject to authority and control of the Department of Transportation, as defined in the Memorandum of Understanding between the Secretary of Transportation and the Administrator of the Environmental Protection Agency, dated November 24, 1971, 36 FR 24000. (2) those facilities which, although otherwise subject to the jurisdiction of the Environmental Protection Agency. meet both of the following requirements: (A) the underground burled storage capacity of the facility is 42,000 gallons or less of all, and (B) the storage capacity, which is not buried, of the facility is 1,320 gallons or less of oil, provided no single container has a capacity in excess of 660 gallons. [41 FR 12657, March 26. 1976] (e) This part provides for the preparation and implementation of Spill Prevention Control and Countermeasure Plans prepared in accordance with 1 112.7, designed to complement existing laws, regulations, rules. standards, policlas and procedures pertaining to safety standards. fire prevention and pollution prevention rules. so as to form a comprehensive balanced Federal/State spill prevention program to minimine the potential for off discharges. Compliance with this part does not in any way relieve the owner or operator of an onshore or an effshore facility from compliance with other Federal. State or local laws. I 112.3 Definitions. For the purposes of this part: (a) "Ou" means oil of any kind or to any form, including. but not limited to petroleum. fuel oil, sludge. off refuse and oil mixed with wastes other than dredged spoil. (b) "Discharge" includes but is not limited to, any spilling. leaking. pump- Ing. pouring. smitting. emptying or dumping. For purposes of this part, the term "discharge" shall not include any discharge of of) which is authorised by a permit issued pursuant to Section 13 of the River and Harbor Act of 1899 (30 Stat. 1121, 33 U.S.C. 407), or Sections 402 or 405 of the FWPCA Amendments of 1972 (86 Stat. 816 et seq., 33 U.S.C. 1251 ct seq.). (c) "Onshore facility" means any facility of any kind located in on. or under any land within the United States, other than submerged lands, which is not a transportation-related facility. (d) "Offshore facility" means any facility of any kind located in on, or under any of the navigable waters of the United States, which is not a transportation-related facility. (e) "Owner or operator" means any person owning or operating an onshore facility or an offahore facility, and in the case of any abandoned offshore facility, the person who owned or operated such facility immediately prior to such abandonment. (f) "Person" includes an individual. firm, corporation, association, and a partnership. (g) "Regional Administrator", means the Regional Administrator of the Environmental Protection Agency. or his designee, in and for the Region in which the facility is located. (h) "Transportation-related" and "non-transportation-related" as applied to an onshore or offshore facility. are defined in the Memorandum of Understanding between the Secretary of Transportation and the Administrator of the Environmental Protection Agency, dated November 24, 1971. 36 PR 24080. (1) "Spill event" means a discharge of all into or upon the navigable waters of the United States or adjoining shoralines in harmful quantities, as defined at 40 CFR Part 110. (j) "United States" means the States, the District of Columbia, the Commonwealth of Puerto Rico, the Canal Zone, Guam. American Samoa, the Virgin Islands, and the Trust Territory of the Pacific Islands. (k) The term "navigable waters" of the United States means "navigable waters" as defined in section 502(7) of the PWPCA, and includes: (1) all navigable waters of the United States, as defined in judicial decisions prior to passage of the 1972 Amendments to the FWPCA (Pub. L. 93-500), and tributaries of such waters: (3) interstate waters: (3) intrastate lakes, rivers, and streams which are utilized by interstate travelers for recreational or other purposse; and (4) intrastate lakes, rivers. and streams from which fish or shellfish are taken and sold in interstate commerce. (1) "Vessal" means every description of watercraft or other artificial contriv- 8-27-76 Copyright © 1976 by The Bureeu of National Affers, Inc. (Sec. 112.2(I) 131:0932 ance used. or capable of being used as a means of transportation on water, other than a public vessel. $ 112.3 Requirements for preparation and implementation of Spill Prevention Control and Countermeasure Pleas. (a) Owners or operators of onshore and offshore facilities in operation on or before the effective date of this part that have discharged or, due to their location. could reasonably be expected to discharge oil in harmful quantities, as defined in 40 CPR Part 110, into or upon the navigable waters of the United States or adjoining shorelines, shall prepare a Spill Prevention Control and Countermeasure Plan (hereinafter "SPCC Plan"), in writing and in accordance with section 112.7. Except as provided for in paragraph (f) of this section, such SPCC Plan shall be prepared within six months after the effective date of this part and shall be fully implemented as soon as possible, but not later than one year after the effective date of this part. [4] FR 12657, March 26. 1976] (b) Owners or operators of onshore and offshore facilities that become operational after the effective date of this part, and that have discharged or could reasonably be expected to discharge oil in harmful quantities. as defined in 40 CFR Part 110, into or upon the navigable waters of the United States or adjoining shorelines, shall prepare an SPCC Plan in accordance with 112.7. Except as provided for in paragraph (f) of this section, such SPCC Plan shall be prepared within six months after the date such facility begins operations and shall be fully implemented as soon as possible. but not later than one year after such facility begins operations. (c) Owners or operators of onshore and offshore mobile or portable facilities, such as onshore drilling or workover rigs. barge mounted offshore drilling or workover rigs. and portable fueling facilities shall prepare and implement an SPCC Plan as required by paragraphs (a), (b) and (d) of this section. The owners or operators of such facility need not prepare a new SPCC Plan each time the facility is moved to a new site. The SPCC Plan may be a general plan. prepared in accordance with section 112.7, using good engineering practice. When the mobile or portable facility is moved, R must be 10- cated and installed using the spill prevention practices outlined in the SPCC Plan for the facility. No mobile or portable facility subject to this regulation shall operate unless the SPCC Plan has been implemented. The SPCC Plan shall only apply while the facility is in a fixed (non-transportation) operating mode. 141 FR 12657, March 26, 19761 (d) No SPCC Plan shall be effective to satisfy the requirements of this part unless it has been reviewed by & Registared Professional Engineer and certified to by such Professional Engineer. By means of this certification the angineer, having examined the facility and being familiar with the provisions of this part, shall attest that the SPCC Plan has been prepared in accordance with good engineering practices. Such certification shall in no way relieve the owner or operator of an onshore or offshore facility of his duty to prepare and fully implement such Plan in accordance with 112.7. as required by paragraphs (a), (b) and (c) of this section. (e) Owners or operators of a facility for which an SPCC Plan is required pursuant to paragraphs (a), (b) or (c) of this section shall maintain a complete copy of the Plan at such facility if the facility is normally attended at least 8 hours per day, or at the nearest field office if the facility is not so attended. and shall make such Plan available to the Regional Administrator for on-site review during normal working hours. (f) Extensions of time. (1) The Regional Administrator may authorize an extension of time for the preparation and full implementation of an SPCC Plan beyond the time permitted for the preparation and implementation of an SPCC Plan pursuant to paragraphs (a), (b) or (c) of this section where be finds that the owner or operator of a facility subject to paragraphs (a), (b) or (c) of this section cannot fully comply with the requirements of this part as a result of either nonavailability of qualified personnel. or delays in construction or equipment delivery beyond the control and without the fault of such owner or operator or their respective agents or employees. (2) Any owner or operator seeking an extension of time pursuant to paragraph (f) (1) of this section may submit a letter of request to the Regional Administrator. Such letter shall include: (i) A complete copy of the SPCC Plan. If completed: (ii) A full explanation of the cause for any such delay and the specific aspects of the SPCC Plan affected by the delay: (iii) A full discussion of actions being taken or contemplated to minimize or mitigate such delay: (iv) A proposed time schedule for the implementation of any corrective actions being taken or contemplated. including interim dates for completion of tests or studies. installation and operation of any necessary equipment or other preventive measures. In addition. such owner or operator may present additional oral or written statements in support of his letter of request. (3) The submission of a letter of request for extension of time pursuant to paragraph (f) (2) of this section shall in no way relieve the owner or operator from his obligation to comply with the requirements of 112.3 (a), (b) or (c). Where an extension of time is authorised by the Regional Administrator for particular equipment or other specific aspacts of the SPOC Plan, such extension shall in no way affect the owner's or operator's obligation to comply with the requirements of I 112.3 (a), (b) or (c) with respect to other equipment or other specific aspects of the SPCC Plan for which an extension of time has not been expressly authorised. 112.4 Amendment of SPCC Plane by Regional Administrator. (a) Notwithstanding compliance with I 112.3, whenever a facility subject to 1 112.3 (a), (b) or (c) has: Discharged more than 1,000 U.S. gallons of oil into or upon the navigable waters of the United States or adjoining shorelines in a single spill event, or discharged oil in harmful quantities, as defined in 40 CFR Part 110, into or upon the navigable waters of the United States or adjoining shorelines in two spill events, reportable under section 311(b)(5) of the PWPCA. occurring within any twelve month period, the owner or operator of such facility shall submit to the Regional Administrator, within 60 days from the time such facility becomes subject to this section, the following: (1) Name of the facility: (2) Name(s) of the owner or operator of the facility: (3) Location of the facility: (4) Date and year of initial facility operation; (5) Maximum storage or handling capacity of the facility and normal daily throughput; (6) Description of the facility, including maps, flow diagrams, and topographical maps: (7) A complete copy of the SPCC Plan with any amendments; (8) The cause(s) of such spill, including a failure analysis of system or subsystem in which the failure occurred; (9) The corrective actions and/or countermeasures taken. including an adequate description of equipment repairs and/or replacements; (10) Additional preventive measures taken or contemplated to minimize the possibility of recurrence; (11) Such other information as the Regional Administrator may reasonably require pertinent to the Plan or spill event. (b) Section 112.4 shall not apply until the expiration of the time permitted for the preparation and implementation of an SPCC Plan pursuant to 5 112.3 (a), (b). (c) and (f). (c) A complete copy of all information provided to the Regional Administrator pursuant to paragraph (a) of this section shall be sent at the same time to the State agency in charge of water pollution control activities in and for the State in which the facility is located. Upon receipt of such information such State agency may conduct a review and make recommendations to the Regional Administrator as to further procedures, methods. equipment and other requirements for equipment necessary to prevent and to contain discharges of oil from such facility. (d) After review of the SPCC Plan for a facility subject to paragraph (a) of this section. together with all other the formation submitted by the owner or operator of such facility. and by the State agency under paragraph (c) of this section, the Regional Administrator may require the owner or operator of such facility to amend the SPCC Plan If he finds that the Plan does not meet the requirements of this part or that the amendment of the Plan is neces- (See. 112.4(d)) OIL POLLUTION PREVENTION 5-314 131:0933 sary to prevent and to contain discharges of oil from such facility. (e) When the Regional Administrator proposes to require an amendment to the SPCC Plan, be shall notify the facility operator by certified mail addressed to, or by personal delivery to, the facility owner or operator. that he proposes to require an amendment to the Plan. and shall specify the terms of such amendment. If the facility owner or operator is $ corporation. a copy of such notice shall also be mailed to the registered agent, if any, of such corporation in the State where such facility is 10- cated. Within 30 days from receipt of such notice, the facility owner or operator may submit written information, views, and arguments on the amendment. After considering all relevant material presented the Regional Administrator shall notify the facility owner or operator of any amendment required or shall rescind the notice. The amendment required by the Regional Administrator shall become part of the Plan 30 days after such notice, unless the Regional Administrator, for good cause, shall specify another effective date. The owner or operator of the facility shall implement the amendment of the Plan as soon as possible, but not later than six months after the amendment becomes part of the Plan, unless the Regional Administrator specifies another date. (f) An owner or operator may appeal a decision made by the Regional Administrator requiring an amendment to an SPCC Plan. The appeal shall be made to the Administrator of the United States Environmental Protection Agency and must be made in writing within 30 days of receipt of the notice from the Regional Administrator requiring the amendment. A complete copy of the appeal must be sent to the Regional Administrator at the time the appeal is made. The appeal shall contain a clear and concise statement of the issues and points of fact in the case. It may also contain additional information from the owner or operator, or from any other person. The Administrator or his designee may request additional information from the owner or operator, or from any other person. The Administrator or his designee shall render a decision within 60 davs of receiving the appeal and shall notify the owner or operstor of his decision. 141 FR 12657, March 26, 19761 $ 112.5 Amendment of Spill Prevention Control and Countermeasure Plane by owners or operators. and operators of facilities subject to 112.3 (a), (b) or (c) shall complete a review and evaluation of the SPCC Plan at least once every three years from the date such facility becomes subject to this part. As a result of this review and evalustion. the owner or operator shall amend the SPCC Plan within six months of the review to include more effective prevention and coptrol technology if: (1) Such technology will significantly reduce the likelihood of a spill event from the facility. and (2) if such technology has been field-proven at the time of the review. (a) Owners or operators of facilities subject to 1123 (a), (b) or (c) shall amend the SPCC Plan for such facility in accordance with I 112.7 whenever there is a change to facility design, construction, operation or maintenance which materially affects the facility's potential for the discharge of off into or upon the navigable waters of the United States or adjoining shorelines. Such amendments shall be fully implemented as soon as possible, but not later than six months after such change occurs. (c) No amendment to an SPCC Plan shall be effective to satisfy the requirements of this section unless It has been certified by a Professional Engineer in accordance with 1 112.3(d). (b) Notwithstanding compliance with paragraph (a) of this section, owners I 112.6 Civil penalties for violation of Oil Pollution Prevention Regulations. Owners or operators of facilities subject to 112.3(a), (b) or (c) who violate the requirements of this Part 112 by failing -T refusing to comply with any of the provisions of 112.3, I 112.4 or 1 112.5 shall be liable for a civil penalty of not more than $5,000 for each day such violation continues. Civil penalties shall be imposed in accordance with procedures set out in Part 114 of this subchapter D. 6 112.7 Guidelines for the preparation and implementation of a Spill Provention Control and Countermensure Plan. The SPCC Plan shall be a carefully thought-out plan. prepared in accordance with good engineering practices, and which has the full approval of management at a level with authority to commit the necessary resources. If the plan calls for additional facilities or procedures, methods, or equipment not yet fully operational. these Items should be discussed in separate paragraphs, and the details of installation and opera- Monal start-up should be explained separately. The complete SPCC Plan shall follow the asquence outlined below, and include a discussion of the facility's conformance with the appropriate guidelines listed: (a) A facility which has experienced one or more spill events within twelve months prior to the effective date of this part should include a written description of each such spill, corrective action taken and plans for preventing recurrence. (b) Where experience indicates a reasonable potential for equipment failure (such M tank overflow. rupture, or lookage), the plan should include a prediction of the direction, rate of flow, and total quantity of all which could be discharged from the facility as a result of each major type of failure. systems or its equivalent should be used as a minimum: (c) Appropriate containment and/or diversionary structures or equipment to prevent discharged all from reaching a navigable water course should be provided. One of the following preventive (1) Onsbore facilities (1) Dikes, berms or retaining walls sufficiently impervious to contain spilled all (ii) Curbing (iii) Culverting. gutters or other drainage systems (iv) Weirs, booms or other barriers (v) Spill diversion ponds (vi) Retention ponds (vii) Sorbent materials (2) Offshore facilities. (1) Curbing, drip pans (ii) Sumps and collection systems (d) When It is determined that the installation of structures or equipment listed in I 112.7(c) to prevent discharged oil from reaching the navigable waters is not practicable from any onshore or offshore facility, the owner or operator should clearly demonstrate such impracticability and provide the following: (1) A strong off spill contingency plan following the provision of 40 CPR Part 109. (2) A written commitment of manpower. equipment and materials required to expeditiously control and remove any harmful quantity of oil discharged. (e) In addition to the minimal prevention standards listed under 112.7 (e), sections of the Plan should include a complete discussion of conformance with the following applicable guidelines, other effective spill prevention and containment procedures (or, if more stringent, with State rules. regulations and guidelines) (1) Facility drainage (oushore) (excluding production facilities). (1) Drainage from diked storage areas should be restrained by valves or other positive means to prevent a spill or other excessive leakage of oil into the drainage aysterm or implant effusent treatment eyeterm, except where plan systems are designed to handle such leakage. Diked areas may be emptied by pumps or electors: however, these should be manually activated and the condition of the secumulation should be examined before starting to be sure no off will be discharged into the water. (11) Plapper-type drain valves should not be used to drain dised areas. Valves used for the drainage of diked areas should, as far as practical, be of manmal, apen-and-closed design. When plant drainage drains directly into water courses and not into wastewater treatment plants. retained storm water should be inspected as provided to paragraph (e) (3) (iii) (B, c and D) before drainage. (iii) Plant drainage systems from undiked areas should. If possible, flow into ponds. Ingoons or eatchment basins. designed to retain off or return it to the facility. Catchment basins should not be located to areas subject to periodic Rooding. (iv) If plant drainage is not ongineered as above, the final discharge of all in-plant disches should be equipped with a diversion system that could. in B-27-76 Capyright © 1976 by The Bureau of National Affores, Inc. (Sec. 112.7(e)(1)(iv)] 131:0934 the event of an uncontrolled spill. return the all to the plant. (v) Where drainage waters are treated in more than one treatment unit, natural hydraulic flow should be used. If pump transfer is needed, two "Wt" pumps should be provided. and at least one of the pumps should be permanently installed when such treatment is continuous. In any event, whatever techniques are used facility drainage systems should be adequately engineered to prevent oil from reaching navigable waters in the event of equipment failure or human error at the facility. (2) Bulk storage tanks (onshore) (excluding production facilities). (1) No tank should be used for the storage of oil unless its material and construction are compatible with the material stored and conditions of storage such as pressure and temperature. etc. (ii) All bulk storage tank installations should be constructed so that a secondary means of containment is provided for the entire contents of the largest single tank plus sufficient freeboard to allow for precipitation. Diked areas should be sufficiently impervious to contain spilled off. Dikes, containment curbs, and pits are commonly employed for this purpose, but they may not always be appropriate. An alternative system could consist of a complete drainage trench enclosure arranged an that & spill could terminate and be safely confined in an in-plant catchment basin or holding pond. (iii) Drainage of rainwater from the diked area into a storm drain or an effiuent discharge that empties into an open water course, lake. or pond, and bypassing the in-plant treatment system may be acceptable If: (A) The bypass valve is normally sealed closed. (B) Inspection of the run-off rain water ensures compliance with applicable water quality standards and will not cause a harmful discharge as defined in 40 CFR 110. (C) The bypass valve is opened. and resealed following drainage under responsible supervision. (D) Adequate records are kept of such events. (iv) Burled metallic storage tanks represent a potential for undetected spills. A new burled installation should be protected from corrosion by coatings, eathodic protection or other effective methods compatible with local soil conditions. Such buried tanks should at least be subjected to regular pressure testing. (v) Partially buried metallic tanks for the storage of oil should be avoided, unless the buried section of the shell is adequately coated. since partial burial in damp earth can cause rapid corrosion of metallic surfaces, especially at the earth/ air interface. (vi) Aboveground tanks should be subject to periodic integrity testing, taking into account tank design (floating roof, etc.) and using such techniques as hydrostatic testing. visual inspection or a system of non-destructive shell thickness testing. Comparison records should be kept where appropriate, and tank supports and foundations should be ineluded in these inspections. In addition, the outside of the tank should frequently be observed by operating personnet for signs of deterioration, leaks which might cause & spill, or accumulation of off Inside diked areas. (vii) To control leakage through defective internal heating colls, the following factors should be considered and applied. M appropriate. (A) The steam return or exhaust lines from internal heating colls which discharge into an open water course should be monitored for contamination, or passed through a settling tank, skimmer, or other separation or retention system. (B) The feasibility of installing an extermal heating system should also be considered. (viii) New and old tank installations should. as far as practical, be fail-safe engineered or updated into a fail-safe engineered installation to avoid spills. Consideration should be given to providing one or more of the following devices: (A) High liquid level alarms with an audible or visual signal at a constantly manned operation or surveillance sta- Mon: in smaller plants an audible air vent may suffice. (B) Considering size and complexity of the facility, high liquid level pump cutoff devices set to stop flow at a predetermined tank content level. (C) Direct audible or code signal communication between the tank gauger and the pumping station. (D) A fast response system for determining the liquid level of each bulk storage tank such as digital computers, telepulse, or direct vision gauges or their equivalent. (E) Liquid level sensing devices should be regularly tested to insure proper operation. (ix) Plant effuents which are discharged into navigable waters should have disposal facilities observed frequently enough to detect possible system upsets that could cause an off spill event. (x) Visible oil leaks which result in a loss of oil from tank seams, gaskets, rivets and bolts sufficiently large to cause the accumulation of of) in diked areas should be promptly corrected. (xi) Mobile or portable oil storage tanks (onshore) should be positioned or located so as to prevent spülled all from reaching navigable waters. A secondary means of containment, such M dikes or eatchment basins, should be furnished for the largest single compartment or tank. These facilities should be located where they will not be subject to periodic flooding or washout. (3) Factlity transfer operations, pump- Ing, and in-wient process (onshore) (excluding production facilities). (1) Buried piping installations should have a protective wrapping and coating and should be cathodically protected if soil conditions warrant. If a section of burled line is exposed for any reason. it should be carefully examined for deterioration. If corrosion damage is found, additional examination and corrective action should be taken as indicated by the magnitude of the damage. An alternative would be the more frequent Use of exposed pipe corridors or galleries. (M) When a pipeline is not in service. or in standby service for an extended time the terminal connection at the transfer point should be capped or blank-fianged, and marked as to origin. (iii) Pipe supports should be properly designed to minimise abrasion and corrosion and allow for expansion and contraction. (iv) AB aboveground valves and pipelines should be subjected to regular examinations by operating personnel at which time the general condition of items. such as fiange joints, expansion joints, valve glands and bodies, eatch pans, pipeline supports, locking of valves. and metal surfaces should be assessed. In addition, periodic pressure testing may be warranted for piping in areas where facility drainage is such that a failure might lead to a spill event. (v) Vehicular traffic granted entry into the facility should be warned verbally or by appropriate signs to be sure that the vehicle. because of its size, will not endanger above ground piping. (4) Facility tank car and tank truck loading/unloading rack (onshore). (1) Tank car and tank truck loading/unloading procedures should meet the minimum requirements and regulation established by the Department of Transportation (ii) Where rack area drainage does not flow into a catchment basin or treatment facility designed to handle spills, & quick drainage system should be used for tank truck loading and unloading areas. The containment system should be designed to hold at least maximum capacity of any single compartment of a tank car or tank truck loaded or unloaded in the plant. (iii) An interlocked warning light or physical barrier system. or warning signs, should be provided in loading/unloading areas to prevent vehicular departure before complete disconnect of flexible or fixed transfer lines. (lv) Prior to filling and departure of any tank car or tank truck, the lowermost drain and all outlets of such vehicles should be closely examined for leakage. and if necessary, tightened. adjusted. or replaced to prevent Hould leakage while to transit. (5) os production facilities (onshore). (1) Definition. An enshore production facility may include all wells, flowlines, separation equipment. storage facilities, gathering lines, and auxiliary non-transportation-related equipment and facillties in a single geographical oil or gas field operated by a single operator. (ii) on production facility (onshore) drainage. (A) At tank batteries and cantral treating stations where an accldental discharge of oil would have a reasonable possibility of reaching Davigable waters, the dikes or equivalent required under 1 112.7(c) (1) should have drains closed and sealed at all times except when rainwater is being drained. Prior to drainage, the diked area should be inspected as provided to paragraph (e) (2) (iii) (B), C), and (D). Accumulated oil on the rainwater should be picked up and returned to storage or disposed of in accordance with approved methods. (B) Field drainage ditches, road ditches. and oil traps, sumps or skimmers, if such exist, should be inspected at regularly scheduled intervals for accumulation of off that may have occuped from small leaks Any such accumulations should be removed. (iii) Oil production facility (onshore) bulk storege tanks. (A) No tank should be used for the storage of all unless its material and construction are compatibis with the material stored and the conditions of storage. (Sec. 112.7(e)(5)(iii)) OIL POLLUTION PREVENTION 8-181 131:0935 (B) All tank battery and central treatthe plant installations should be provided with a accondary means of containment for the entire contents of the largest single tank if feasible, or alternate systems such as those outlined in I 112.7(c) (1). Drainage from undiked areas should be safely confined in a catchment basin or holding pond. (C) All tanks containing oil should be visually examined by a competent person for condition and need for maintenance on a scheduled periodic basis. Such examination should include the foundation and supports of tanks that are above the surface of the ground. (D) New and old tank battery installations should, as far as practical. be failsafe engineered or updated into a failsafe engineered installation to prevent spills. Consideration should be given to one or more of the following: (1) Adequate tank capacity to assure that a tank will not overfill should a pumper/gauger be delayed in making his regular rounds. (2) Overflow equalizing lines between tanks so that & full tank can overflow to an adjacent tank. (3) Adequate vacuum protection to prevent tank collapse during a pipeline run. (6) High level sensors to generate and transmit an alarm signal to the computer where facilities are a part of a computer production control system. (iv) Facility transfer operations, oil production facility (onshore). (A) All above ground valves and pipelines should be examined periodically on a scheduled basis for general condition of Items such as fiange joints, valve glands and bodies, drip pans. pipeline supports, pumping well polish rod stuffing boxes, bleeder and gauge valves. (B) Balt water (oil field brine) disposal facilities should be examined often, particularly following a sudden change in atmospheric temperature to detect possible system upsets that could cause an on discharge. (C) Production facilities should have a program of flowline maintenance to prevent spills from this source. The program should include periodic examinetions, corrosion protection, flowline replacement, and adequate records, as appropriate, for the individual facility. (6) Off drilling and morkover facilities (onshore) (1) Mobile drilling or workover equipment should be positioned or 10- cated so as to prevent spilled oil from reaching navigable waters. (ii) Depending on the location, eatchment basins or diversion structures may be necessary to intercept and contain spills of fuel, crude oil, or only drilling fluids. (iii) Before drilling below any casing string or during workover operations, a biowout prevention (BOP) assembly and well control system should be installed that is capable of controlling any well head pressure that is expected to be encountered while that BOP assembly is on the well. Casing and BOP installations should be in accordance with State regulatory agency requirements. (7) ou drilling, production, or workover facilities (offshore). (1) Definition: "An oil drilling. production or workover facility (offshore)' may include all drilling or workover equipment, wells, flowlines, gathering lines, platforms, and auxiliary nontransportation related equipment and facilities in a single geographical oil or gas field operated by a single operator. (ii) Oil drainage collection equipment should be used to prevent and control small oil spillage around pumps, glands, valves, fianges. expansion joints, hoses. drain lines, separators, treaters, tanks, and allied equipment. Drains on the facility should be controlled and directed toward a central collection sump or equivalent collection system sufficient to prevent discharges of oil into the navigable waters of the United States. Where drains and sumps are not practicable oll contained in collection equipment should be removed as often as necessary to prevent overflow. (iii) For facilities employing $ sump system. sump and drains should be adequately sixed and a spare pump or equivalent method should be available to remove liquid from the sump and assure that oil does not escape. A regular scheduled preventive maintenance inspection and testing program should be employed to assure reliable operation of the liquid removal system and pump start-up device. Redundant automatic sump pumps and control devices may be required on some installations. (iv) In areas where separators and treaters are equipped with dump valves whose predominant mode of failure is in the closed position and pollution risk is high, the facility should be specially equipped to prevent the escape of all This could be accomplished by extending the flare line to a diked area if the separator is near shore, equipping it with a high liquid level sensor that will automatically shut-in walls producing to the separator, parallel redundant dump valves, or other feasible alternatives to prevent oil discharges. (v) Atmospheric storage or surge tanks should be equipped with high liquid level sensing devices or other acceptable alternatives to prevent oil discharges. (vi) Pressure tanks should be squipped with high and low pressure sensing devices to activate an alarm and/or control the flow or other acceptable alternatives to prevent oil discharges. (vii) Tanks should be equipped with suitable corresion protection. (viii) A written procedure for inspecting and testing pollution prevention equipment and systems should be prepared and maintained at the facility. Such procedures should be included as part of the SPCC Plan. (iz) Testing and inspection of the pol- Jution prevention equipment and systems at the facility should be conducted by the owner or operator on a scheduled partodic basis commensurate with the complexity. conditions and circumstances of the facility or other appropriate regulations. (x) Surface and subsurface well abutin valves and devices in use at the facility should be sufficiently described to determine method of activation or control, e.g., pressure differential change in fluid or flow conditions, combination of pressure and flow. manual or remote control mechanisms. Detailed records for each well, while not necessarily part of the plan should be kept by the owner or operator. (xi) Before drilling below any casing string. and during workover operations a blowout preventer (BOP) assembly and well control system should be installed that is capable of controlling any wellhead pressure that is expected to be encountered while that BOP assembly is on the well. Casing and BOP installations should be in accordance with State regulatory agency requirements. (xii) Extraordinary well control measures should be provided should emergency conditions, including fire, loss of control and other abnormal conditions, occur. The degree of control system redundancy should vary with harard exposure and probable consequences of failure. It is recommended that surface shut-in systems have redundant or "fail close" valving. Subsurface safety valves may not be needed in producing wells that will not flow but should be installed as required by applicable State regulations. (xii) In order that there will be no misunderstanding of joint and separate duties and obligations to perform work in a safe and pollution free manner, written instructions should be prepared by the owner or operator for contractors and subcontractors to follow whenever contract activities include servicing a well or systems appurtment to a well or pressure vessel. Such instructions and procedures should be maintained at the effshore production facility. Under certain circumstances and conditions such contractor activities may require the presence at the facility of an authorised representative of the owner or operator who would Intervane when necessary to provent a apfil event. (xiv) All manifolds (headers) should be equipped with check valves on Individual Sowtines. (EV) If the shut-in well pressure is greater than the working pressure of the Sewtine and manifeld valves up to and including the header valves amociated with that individual Sowline, the flowline should be equipped with a high pressure sensing device and abutin valve at the wellhead unions provided with a pressure relief systems to prevent over pressuring. (xvi) All pipelines appurtenant to the facility should be protected from corroaton. Methods used. such as protective coatings or esthodic protection, should be discussed. (xvil) Sub-marine pipalines apportenant to the facility should be adequately protected against environmental strences and other activities such as Rehing operations. (svill) Sub-marine pipelines apportenant to the facility should be in good Capyright € 1973 by The Bureau of National Affeirs, Inc. 131:0936 operating condition at all times and inspected on a scheduled periodic basis for failures. Such inspections should be documented and maintained at the facility. (8) Inspections and records. Inspections required by this part should be in accordance with written procedures developed for the facility by the owner or operator. These written procedures and a record of the inspections, signed by the appropriate supervisor or inspector. should be made part of the SPCC Plan and maintained for a period of three years. (9) Security (excluding oil production facilities). (i) All plants handling. processing. and storing of should be fully fenced. and entrance gates should be locked and/or guarded when the plant is not in production or is unattended. (ii) The master flow and drain valves and any other valves that will permit direct outward flow of the tank's content to the surface should be securely locked in the closed position when in non-operating or non-standby status. (iii) The starter control on all all pumps should be locked in the "off" position or located at a site accessible only to authorized personnel when the pumps are in a non-operating or nonstandby status. (iv) The loading/unloading connections of all pipelines should be securely capped or blank-flanged when not in service or standby service for an extended time. This security practice should also apply to pipelines that are emptied of liquid content either by draining or by inert gas pressure. (v) Facility lighting should be commensurate with the type and location of the facility. Consideration should be given to: (A) Discovery of spills occurring during hours of darkness, both by operating personnel, If present, and by non-operating personnel (the general public, local police, etc.) and (B) prevention of spills occurring through acts of vandalism. (10) Personnel, training and spill prevention procedures. ($) Owners or operators are responsible for properly instructing their personnel to the operation and maintenance of equipment to prevent the discharges of of and applicable pollution control laws, rules and regulations. (ii) Each applicable facility should have a designated person who is accountable for oil spill prevention and who reports to line management. (iii) Owners or operators should schedule and conduct spill prevention briefings for their operating personnel at intervals frequent enough to assure adequate understanding of the SPCC Plan for that facility. Such briefings should highlight and describe known spill events or failures. malfunctioning components, and recently developed precautionary measures. APPENDIS Memorandum of Understanding between the Becretary of Transportation and the Administrator of the Environmental Protection Agency. SECTION N-DEFINITIONS The Environmental Protection Agency and the Department of Transportation agree that for the purposes of Executive Order 11548. the term: (1) "Non-trapsportation-related onshore and offshore facilities" means: (A) Pixed onshore and offshore oil well drilling facilities including all equipment and appurtenances related thereto used in drilling operations for exploratory or development wells, but excluding any terminal facility. unit or process integrally associated with the handling or transferring of off in bulk to or from a vessel. (B) Mobile onshore and offshore oil well drilling platforms. barges. trucks, or other mobile facilities including all equipment and appurtenances related thereto when such mobile facilities are fixed in position for the purpose of drilling operations for exploratory or development wells. but excluding any terminal facility, unit or process integrally associated with the handling or transferring of oil in bulk to or from a vassel. (c) Pixed onshore and offshore all production structures, platforms. derricks, and rigs including all equipment and appurtenances related thereto. as well as completed wells and the wellhead separators. oil separators. and storage facilities used in the production of oil, but excluding any terminal facility. unit or process integrally associated with the handling or transferring of of in bulk to or from a vessel. (D) Mobile onshore and offshore oil production facilities including all equipment and appurtenances related thereto M well as completed wells and wellhesd equipment, piping from wellheads to oil separators, oil separators, and storage facilities used in the production of oil when such mobile facilities are fixed in position for the purpose of all production operations, but excluding any terminal facility. unit or process integrally associated with the handling or transferring of oil in bulk to or from a vessel. (E) on refining facilities including all equipment and appurtenances related thereto as wall as In-plant processing units. storage units, piping. drainage systems and waste treatment units used in the refining of on. but excluding any terminal facility. unit or process integrally associated with the handling or transferring of on in bulk to or from a vensel. (P) Ou storage facilities including all equipment and appurtenances related thereto as well as fixed built plant storage, terminal on storage facilities, consumer storage, pumps and drainage systems used in the storage of oil. but excluding inline or breakout storage tanks needed for the continuous operation of a' pipeline system and any terminal facility. unit or process integrally associated with the handling or transferring of on in BUIE to or from a vensel. (G) Industrial, commercial. agricultural or public facilities which use and store all. but excluding any terminal facility. unit or process integrally associated with the ban. dling or transferring of off in bulk to or from . vessel. (H) Waste treatment facilities including in-plant pipelines, efficent discharge lines, and storage tanks. but excluding waste treat. ment faculties located on vessels and termlnal storage tanks and appurtenances for the reception of only ballast water or tank wash. ings from vessels and associated systems used for off-loading versels. (1) Loading racks, transfer hoses, loading arms and other equipment which are appurtenant to a mentransportation-reiated facility or terminal facility and which are used to transfer on in buik to or from bighway vehicles or reilroad cars. (J) Highway vehicles and railroad care which are used for the transport of oil exclusively within the confines of a nontransportation-related facility and which are not intended to transport on in interstate or Intrastate commerce. (K) Pipeline systems which are used for the transport of all exclusively within the confines of a nontransportation-related fact)- ity or terminal facility and which are not intended to transport ou in interstate or intrastate commerce, but excluding pipeline systems used to transfer on in bulk to or from a vessel. (2) "transportation-related onshore and offshore facilities" means: (A) Onshore and offshore terminal facilities including transfer homes loading arms and other equipment and appurtenances used for the purpose of handling or transferring on in bulk to or from a vessel as well as storage tanks and appurtenances for the reception of only ballast water or tank washings from but excluding terminal waste treatment facilities and terminal all storage facilities. (B) Transfer hoses. loading arms and other equipment appurtenent to a nontransportation-related facility which to used to transfer ou tn bulk to or from a vassel. (C) Interstate and intrastate onshore and offshore pipeline systems including pumps and appurtenances related thereto as well as in-line or breakout storage tanks needed for the continuous operation of a pipeline system. and pipelines from onshore and offshore of production facilities. but excluding onshore and offabore piping from wellheads to ou separators and pipelines which are used for the transport of ou enclusively within the confines of a mentransportationrelated facility or terminal facility and which are net intended to transport of in interstate or Intrastate commerce or to transfer of to built to or from & vessel. (D) Highway vehicles and retiread cars which are used for the transport of oil in Interstate or intractate estimatos and the equipment and appurtenances related thereto, and equipment used for the fueling of locomotive units, as well as the rightsof-way on which they operate. Excluded are highway vehicles and reilroad care and mo- Give power used exclusively within the con- Sanse of a nontransportation-related facility or terminal facility and which are not intended for use in Interstate or intrastate commerce. ATTACHMENT B-2 Appendix I Representative Sampling Methods ANEJO B-2 Appendix I Representative Sampling Methods APPENDIX I-REPRESENTATIVE SAMPLING METHODS The methods and equipment used for sampling waste materials will vary with the form and consistency of the waste materials to be sampled. Samples collected using the sampling protocols listed below, for sampling waste with properties similar to the in. dicated materials, will be considered by the Agency to be representative of the waste. Extremely viscous liquid-ASTM Standard D140-70 Crushed or powdered material- ASTM Standard D346-75 Soil or rock-like material-ASTM Standard D420-69 Solllike material-ASTM Standard D1452-65 Fly Ash-like material-ASTM Standard D2234-76 (ASTM Standards are available from ASTM, 1916 Race St., Philadelphia, PA 19103) Containerized liquid wastes-"COLIWASA" described in "Test Methods for the Evaluation of Solid Waste, Physical/Chemical Methods," to U.S. Environmental Protection Agency. Office of Solid Waste, Washington. D.C. 20460. [Copies may be obtained from Solid Waste Information, U.S. Environmental Protection Agency. 26 W. St. Clair St.. Cincinnati, Ohio 45268) Liquid waste in pits. ponds, lagoons, and similar reservoirs.-"Pond Sampler" described in "Test Methods for the Evalua tion of Solid Waste. Physical/Chemical Methods." . This manual also contains additional in. formation on application of these protocols. ANEJO B-14 Appendix VII Basis for Listing Hazardous Waste Appendix VII-Basis for Listing Hazardous Waste [Appendix VII amended by 45 FR 47833. July 16. 1980: revised by 45 FR 74890. November 12. 1980: 46 FR 4617. lanuary 16. 1981: 49 FR 5312 February 10. 1984: 50 FR 1999. January 14. 1985: 50 FR 42942. October 23. 1985: 51 FR 5330. February 13. 1986: 51 FR 6541. February 25. 1986] EPA hazardous Mazardous construents for which listed waste No F001 Tetrachiorpethyiene mathylene chloride thchiorosthylene 1.1.1-anchloroethane carbon tetrachioride chionnated fluorocarbons F002 Tetrachiorosthylene. mathylene chloride. trichloroethylens. 1.1.1-tncholoroetnane. chiorobenzene 1.1.2-tnchioro-1.2.2-trifuoroethane tnichiorofiuoromethane F001 N.A F004 Cresols and cresytic acid nitrobenzane. with Toluans methy athy katone, carbon disuifide, isobutanol, pyridine, 2-ethoxyethenol. benzene, 2-nitropropane. F006 Cadmium hexavalent chromium. nickel. cyanide (complexed) F007 Cyanide (salts). F008 Cyenide (safts) F009 Cyanide (salts). F010 Cyanide (salts). F011 Cyande (safts). F012 Cyande (complexed) F019 Haxavalent a cyanide (complexed). F020 Tetra- and pantachlorodibenzo-p- dioxins: terrs and pentachiorodisenzofurens: tn- and termichloro a and their chicrophenic Derivative acids. esters, ethers. amine and oth- If salts F021 Penta- and nexachlorodibenzo-p- dioxins; penta- and hexachiorodibenzofurans: pentachlorophenol and its derivatives. F022 Tetra-, penta-, and hexachiorodibanzo-p-dioxis. tetra-, pents- and hexachlorodiber tofurans. F023 Tetra. and pentachiorodibenzo-p dioxins: total and pentachiorodibenzolurans: the and astra-chiorophenols and their chiorophenoxy denvative acids, esters, etners. amine and other salts F024 Chioromethane. dichioromathans. trichworomethane. carbon tetrachioride. chioroethvians 1,1-dichiorosthane. 1.2 dichlorosthane. trans-1-2-dichioroemylene 11 dichiorosthytens, 1,1.1-nchiorcethane. 1,1,2-trichiorcethane, inchiorosthylene, 1.1.1.2- Appendix VII-Basis for Listing Hazardous Waste-Continued Appendix VII-Basis for Listing Hazardous EPA hazardous Hazaroous constituents for which asted waste No tetra- chiorosthane. 1.1.2.2-tetrachforethane. tetrachioroethyiene. pentachiorosthane. hexachioroetr. ans. alivi chloride (3-chioroprophe) dichioropropane. dichioropropens 2-chioro-1.3-butadiene hexachioro- 1.3-butadiene nexachiorocycioper tadine. nexachiorocycionexane. benzene. chiorobenzene. dichiorobenzenes. 1.2.4-trichlorobenzene. tetrachiorobenzene. pentachiorobenzene. nexachiorobenzene toluene naphthalene F026 Tetra-, pents- and hexachiorodbanzo-p-dioxins: terrs. penta- and hexachiprodibenzoturans F027 Tetre. penta- and hexachiorodibenzo-p-dioxins; tetra., penta- and hexachlorodibenzofurans: tri-. tetraand pentechiorophenois and their chiorophenoxy derivative acids. 08- ters. ethers. amine and other salts F028 Tetre- penta- and hexachiorodibenzo-p- dioxins: tetra. penta-. and hexachiorodibenzofurans: the tetra- and pentachtorophenols and their chlorophenoxy derivative acids, esters. ethers, amine and other salts K001 Pentschlorophenol, phenol. 2-chiorophenol, p-chioro-m-cresol, 2,4-dmethylphemy1, 2.4-dintrophenol, trichlorophenols, totrachiorophenois, 2.4-dinstrophenol, onesosots, chrysene. naphthalene, fluoranthone, benzo(b)fluoranthens. benzo(s)pyfane, Indeno(1.2.3-cd)pyrene, benz(s)anthracens, dibenz(ajanthracens, acenaphthalene K002 Hekevalent chromium, lead K003 Hexavalent chromium. lead. . K004 Hexavalent chromium. K005 Hexavelent chromium lead. K006 Hexavalent chromium K007 Dyanide (complexed). hexavalent chromi- UTL K008 Hexavalent chromium K009 Chioroform, formaldehyde, mathylene chio nos, mathyl chloride, paraidehyde, formic acid K010 Chicroform. formaidehyde, methylene chioride. methyl chioride. paraidehyde. formic and chioroacetaldehyde. K011 Acrylonitric. acetonitrile, hydrocyanic acid K013 Hydrocyanic acid. acrylonities. acetorutrile. K014 Acetonitrile, acryla/mide K015 Benzyl chloride, chicrobenzene, toluens, benzotnchloride. K015 Haxachiorobenzene, hexachiorobutadiene, carbon tetrachloride, hexachioroethans, parchiorosthylene. K017 Epichlorohydnn. chicrosthers Ebis(chioromethy) other and bis (2-chioracthyl) others). anchloropropens, dichiarapropanols. Waste-Continued EPA hazardous Hazardous constituents for which listed waste No K016 trichiproethyiene hexachiorobutablene nexachiorobenzene K019 Ethylene dichioride, 1.1.2-anchloroethane tetrachioroethanes (1.1.2.2-tetrachoroethane and 1,1,1,2-le trachioroetnane), anchiorosthylene - trachloroethylene carbon tetrachloride. chioroform. a chioride, a chloride. K020 Ethylene dichloride. 1,1.2-anchioroethane. tetrachiorpethanes and 1,1,1,240 inschioroethane). trichiorosthviane, 10- trachiorosthylene, caroon terrachloride, chiorotorm, a chioride, vinylidene chioride K021 Antimony, carbon tetrachloride, chioroform. K022 Phenol: ters (polycyclic aromatic hydrocarbons). K023 Phinaic anhydride, malec anhydride K024 Phthalic anhydride, 1.4-naphthoquanone. K025 Meta-dinitrobenzene KD26 Paraidehyde. pyndines, 2-picoline KD27 Totuene disocyanate. toluens-2. 4-diamine. K028 ,1,1-tnichioroethane vinyl chionde K029 1,2-dichioroethana 1,1.1-tnchoroethane. viryl chionde, vinylidene chloride, chioroform K030 Hexachlorobenzene. hexachiorobutadiene, hexachiorosthane. 1.1.1.2-tetrachicroetnane, 1,1.2.2-latrachlorpethane, athylene dichioride. K031 Arsenc. K032 Hexachiorocyclopentadiene K033 Hexachiorocyciopentadiene K034 Hexachiorocyciopentadiens K035 Creosote, chrysens, naphthalene, fluoranthene benzo(b) fluoranthene, benzo(a)pyrane. indeno(1.2.3-cd) pyrens, benzo(a)anthracene dibenzo(a)anthracene, acenaphthalene. K036 Toluens, phosphorodithic and phosphoro-thic acid esters. K037 Toluene, phosphorodithic and phosphoro-thic acid esters. K038 Phorate formaidehyde, phosphorodithic and phosphorothscic acid esters K019 Phosphorodithic and phosphorothic acid enters. K040 Phorate formaidehyde, phosphorodithic and phosphorothic acid esters. K041 Toxaphene. K042 Hexachiorobenzene, ortho-dichlorobenzene. KD43 2.4-dichlorophenol, 2.6-dichlorophenol. 2,4,6-trichiorophenol. K044 N.A. K045 N.A. K048 Load. N.A-Waste is hazardous because # fairs the test for the characteristic of ignitability, corresivity. or reactivity K047 NA K048 Hexavalent chromium lead K049 Hexavalent chromium. lead K050 Hexavatent chromum K051 Hexavalent chromium lead. K052 Lead K060 Cyenide, napthalene. phenolic compounds areenic. K061 Hexavalent chromium. lead, cadmum K062 Hexavalent chromium. lead. K069 Hexavalent chromium, lead. commun K071 Mercury K073 Chiorotorm, carbon tetrachioride hexacholroethane. trichioroethane. tetrachioroathylone. dichiaroethytene. 1.1.2.2-telrachiorosthane K083 Aniline, diphenylamine, nitrobenzame, phen- a K084 Americ KDB5 Benzene, dichlorobetzenes, trichlorobenzenes. tetrachiorobenzenes, pentachicrobenzene, hexachiorobenzene, benzyl chloride KOB6 Lead herevalent chromium, K087 Phenol, naphthalene. K093 Phthatic anhydride, maleic anhydride. K094 Phthaic anhydride. K095 1.1.2-trichlorosthane, 1,1.1.2tetrachloroethans, 1.1.2.2-tetrachloroethane K096 1,2-dichioroethane, 1.1,1-trichlorosthane, 1.1.2-tromoroethane K097 Chlordane, heptachion K098 Toxaphene K099 2.4-dichiorophenol 2.4.6-brichiorophenol K100 Hexavelent chromium lead, cammun K101 Arserve. K102 Arserve K103 Anima, nitrotionzene, phenylenediamine. K104 Aniline, benzene, diphenyiamine, nitrobenzene, phenylenediamme K105 Benzene, monochiorobenzene. dichierobenzenes, 2,4,6-tricleorophenol K106 Mercury K111 2.4-Dinvtrotoluene K112 2.4-Toluenediamme a toluidine, proluidine, aniline. K113 2.4-Toluenediamine 0-toluldine, p-toluckne. aniline. K114 2.4-Toluenediamine 0 toluidine. A toluidine. K115 2.4-Toiuenediamine K116 Carbon tetrachioride. terrachicroethylerie. chlorotorm, phosgene K117 Emytene dipromide K118 Emylene dibromide. K136 Ethylene dibromide. 9 N.A.-Waste is hazardous because it fails the test for the characteristic of ignitability, corrosivity, or reactivity. ANEJO B-15 Appendix A (Método 3) Gas Analysis for Carbon Dioxide, Oxygen, Excess Air and Dry Molecular Weight 121:1574 and carbon monoxide (CO) concentrations are measured at the outlet. Then the ratio of total carbon at the incinerator inlet and outlet is multiplied by the inlet volume to determine the exhaust volume and volume flow rate. 2. Apporatus. 2.1 Volume Meter. Equipment described in Method 2A. 2.2 Organic Analyzers (2). Equipment described in Method 25A or 25B. [2.2 head corrected by 48 FR 56580, December 22, 1983] 2.3 CO Analyzer. Equipment described in Method 10. 2.4 CO2 Analyzer. A nondispersive infrared (NDIR) CO2 analyzer and supporting equipment with comparable specifications as CO analyzer described in Method 10. 3. Procedure. 3.1 Inlet Installation. Install a volume meter in the vapor line to incinerator inlet according to the procedure in Method 2A. At the volume meter inlet. install a sample probe as described in Method 25A. Connect to the probe a leak-tight. heated (if necessary to prevent condensation) sample line (stainless steel or equivalent) and an organic analyzer system as described in Method 25A or 25B. [3.1 corrected by 48 FR 56580, December 22, 1983] 3.2 Exhaust Installation. Three sample analyzers are required for the incinerator exhaust: CO2. CO, and organic analyzers. A sample manifold with a single sample probe may be used. Install a sample probe as described Method 25A. Connect a leak-tight heated sample line to the sample probe. Heat the sample line sufficiently to prevent any condensation. 3.3 Recording Requirements. The output of each analyzer must be permanently recorded on an analog strip chart, digital recorder, or other recording device. The chart speed or number of readings per time unit must be similar for all analyzers so that data can be correlated. The minimum data recording requirement for each analyzer is one measurement value per minute. 3.4 Preparation. Prepare and calibrate all equipment and analyzers according to the procedures in the respective methods. For the CO₂ analyzer. follow the procedures described in Method 10 for CO analysis substituting CO: calibration gas where the method calls for CO calibration gas. The span value for the CO2 analyzet shall be 15 percent by volume. All calibration gases must be introduced at the connection between the probe and the sample line. If 8 manifold system is used for the exhaust analyzers, all the analyzers and sample pumps must be operating when the calibrations are done. Note: For the purposes of this test. methane should not be used as an organic calibration gas. 3.5 Sompling. At the beginning of the test period. record the initial parameters for the inlet volume meter according to the procedures in Method 2A and mark all of the recorder strip charts to indicate the start of the test. Continue recording inlet organic and exhaust CO2. CO. and organic concentrations throughout the test. During periods of process interruption and halting of gas flow. stop the timer and mark the recorder strip charts so that data from this interruption are not included in the calculations At the end of the test period, record the final parameters for the inlet volume meter and mark the end on all of the recorder strip charts. 3.6 Post Test Calibrations. At the conclusion of the sampling period, introduce the calibration gases as specified in the respective reference methods. If an analyzer output does not meet the specifications of the method, invalidate the test data for the period. Alternatively. calculate the volume results using initial calibration data and using final calibration data and report both resulting volumes. Then. for emissions calculations, use the volume measurement resulting in the greatest emission rate or concentration. 4. Colculations. Carry out the calculations, retaining at least one extra decimal figure beyond that of the acquired data. Round off figures after the final calculation. 4.1 Nomenclature [4.1 corrected by 48 FR 56580, December 22, 1983] CO, = Mean carbon monoxide concentration in system exhaust, ppmv. Mean carbon dioxide concentration in system exhaust, ppmv. Mean organic concentration in system exhaust as defined by the calibration gas, ppmv. HC Mean organic concentration in system inlet as defined by the calibration gas. ppmv. [Corrected by 48 FR 56580, December 22, 1983] -Calibration gas factor = 2 for ethane calibration gas. [4.1 "K" definition corrected by 48 FR 56580, December 22, 1983] = for propane calibration gas. - 4 for butane calibration gas. Exhaust gas volume, M². Inlet gas volume, M'. Qne = Exhaust gas volume flow rate, m3/min. Q. gas volume flow rate, m3/min. e = Sample run time, min. e- Standard Conditions: 20°C, 760 mm Hg. 0=Estimated concentration of ambient CO2. ppmv. (CO₂ concentration in the ambient air may be measured during the test period using an NDIR. [Corrected by 48 FR 56580, December 22, 1983] = Appropriate response factor for other calibration gas. 4.2 Concentrations. Determine mean concentrations of inlet organics, outlet CO2, outlet CO. and outlet organics according to the procedures in the respective methods and the analyzers' calibration curves, and for the time intervals specified in the applicable regulations. Concentrations should be determined on a parts per million by volume (ppmv) basis. [4.2 corrected by 48 FR 56580, December 22, 1983] 4.3 Exhcust Gos Volume. Calculate the exhaust gas volume as follows: K(HC,) V. = V. K(HC.)+CO,+CO,-300 [4.3 corrected by 48 FR 56580, December 22, 1983] Eq. 2B-1 4.4 Exhaust Gus Volume Flow Rate. Calculate the exhaust gas volume flow rate as follows: Q--V Eq. 2B-2 5. Bibliography. 5.1 Measurement of Volatile Organic Compounds. U.S. Environmental Protection Agency. Office of Air Quality Planning and Standards. Research Triangle Park, N.C. 27711. Publication No. EPA-450/2-78-041. October 1978. p. 55. METHOD 3-GAB ANALYSIS FOR CARBON DIOXIDE, OXYGEN, EXCESS AIR, AND Day MOLECULAR WEIGHT 1. Principle one Applicability 1.1 Principle. A gas sample is extracted from a stack, by one of the following methods: (1) single-point grab sampling; (2) single-point, integrated sampling; or (3) multi-point, integrated sampling. The gas sample is analyzed for percent carbon dioxide (CO2), percent oxygen (O:), and, If necessary, percent carbon monoxide (CO), If 8 dry molecular weight determination is to be made, either an Orsat or a Fyrite analyser may be used for the analysis; for excess air or emission rate correction factor determination, all Orsat analyzer must be used. 2. Apparatus Other methods, as well as modifications to the procedure described herein, are also applicable for some or all of the above determinations. Examples of specific methods and modifications Include: (1) a multi-point samp- Mug method using an Orsat analyzer to analyze individual grab samples obtained at each point; (2) a method using CO2 or O₂ and stoichiometric culculations to determine dry molecular weight and excess air; (3) assigning a value of 30.0 for dry molecular weight, in lieu of actual measurements, for processes burning natural gas, coal, or oil. These methods and modifications may be used, but are subject to the approval of the Administrator. U.S. Environmental Protection Agency 1.2 Applicability. This method is applicable for determining CO₂ and O₂ concentrations, excess air, and dry molecular weight of a sample from a g stream of 8 fossil-fuei combustion process. The method may also be applicable toother processes where It has been determined that compounds other than CO2, O₂, CO, and nitrogen (N2) are not present in concentrations sufficient to affect the results. AB an alternative to the sampling apparatus and systems described herein, other sampling systems (e.g., llquid displacement) may be used provided such systems are capable of obtaining n representative sample and maintaining a constant sampling rate, and are otherwise eapable of yielding acceptable results. Use of such systems is subject to the approval of the Administrator. 2.1 Grab Sampling (Figure 3-1). 2.1.1 Probe, The probe should be made of stainless steel or borosilicate glass tubing and should be equipped with an in-stack or out-stack filter to remove particulate matter (a plug of glass wool Is satisfactory for this purpose). Any other material ineri to O2, CO2, CO, and N: and resisiant to temperature at sampling conditions may be used for the probe; examples of such material are sluminum, copper, quarts glass and Teflon. 2.1.2 Pump. A one-way squeeze bulb, or equivalent, is used to transport the gas sample to the analyzer. 2.2 Integrated Sampling (Figure 3-2). 2.2.1 Probe. A probe such ns that described in Section 2.1.1 la suitable. , Mention of trade names or specific products does not constitute endorsement by the Environmental Protection Agency. STATIONARY SOURCES S-686 121:1575 PROBE FLEXIBLE TUBING TO ANALYZER FILTER (GLASS WOOL) SQUEEZE BULB Figure 3-1. Grab sampling train. RATE METER VALVE SURGE TANK AIR-COOLED CONDENSER PROBE PUMP FILTER (GLASS WOOL) QUICK DISCONNECT IN VALVE BAG RIGID CONTAINER I Figure 3-2. Integrated gas-sampling train, [43 FR 1495, January 10, 1978] 2-17-84 Published by THE BUREAU OF NATIONAL AFFAIRS INC., Washington, D.C. 20037 121:1576 2.2.2 Condenser. An air-cooled or watercooled condenser, or other condenser that will not remove O2. CO2, CO, and N, may be used to remove excess moisture which would interfere with the operation of the pump and flow meter. 2.2.3 Valve. A needle valve is used to adjust sample gas flow rate. 2.2.4 Pump. A leak-free, diaphragm-type pump. or equivalent, is used to transport sample gas to the flexible bag. Install a small surge tank between the pump and rate meter to eliminate the pulsation effect of the diaphragm pump on the rotameter. 2.2.5 Rate Meter. The rotameter, or equivalent rate meter, used should be capable of measuring flow rate to within ±2 per. cent of the selected flow rate. A flow rate range of 500 to 1000 cm³/min is suggested. 2.2.6 Flexible Bag. Any leak-free plastic (e.g., Tedlar, Mylar, Teflon) or plasticcoated aluminum (e.g., aluminized Mylar) bag, or equivalent, having a capacity consistent with the selected flow rate and time length of the test run, may be used. A capacity in the range of 55 to 90 liters is suggested. To leak-check the bag, connect it to a water manometer and pressurize the bag to 5 to 10 cm H.O (2 to 4 in. H,O). Allow to stand for 10 minutes. Any displacement in the water manometer indicates a leak. An alternative leak-check method is to pressurize the bag to 5 to 10 cm H,O (2 to 4 in. H,O) and allow to stand overnight. A deflated bag indicates a leak. 2.2.7 Pressure Gauge. A water-filled U. tube manometer. or equivalent, of about 28 cm (12 in.) is used for the flexible bag leakcheck. 2.2.8 Vacuum Gauge. A mercury manometer. or equivalent, of at least 760 mm Hg (30 in. Hg) is used for the sampling train leak-check. 2.3 Analysis. For Orsat and Fyrite analyzer maintenance and operation procedures. follow the instructions recommended by the manufacturer, unless otherwise specified herein. 2.3.1 Dry Molecular Weight Determination. An Orsat analyzer or Fyrite type combustion gas analyzer may be used. 2.3.2 Emission Rate Correction Factor or Excess Air Determination An Orsat analyz. er must be used. For low CO, (less than 4.0 percent) or high O, (greater that 15.0 percent) concentrations. the measuring burette of the Orsat must have at least 0.1 percent subdivisions. 3. Dry Molecular Weight Determination Any of the three sampling and analytical procedures described below may be used for determining the dry molecular weight. 3.1 Single-Point, Grab Sampling and Analytical Procedure. 3.1.1 The sampling point in the duct shall either be at the centroid of the cross section or at a point no closer to the walls than 1.00 m (3.3 ft), unless otherwise specified by the Administrator. 3.1.2 Set up the equipment as shown in Figure 3-1, making sure all connections ahead of the analyzer are tight and leakfree. If and Orsat analyzer is used, it is recommended that the analyzer be leakedchecked by following the procedure in Section 5; however, the leak-check is optional. 3.1.3 Place the probe in the stack, with the tip of the probe positioned at the sampling point: purge the sampling line. Draw a sample into the analyzer and immediately analyze It for percent CO2 and percent O₂, Determine the percentage of the gas that is N, and CO by subtracting the sum of the percent CO, and percent O2 from 100 percent. Calculate the dry molecular weight as indicated in Section 6.3. 3.1.4 Repeat the sampling. analysis. and calculation procedures, until the dry molecular weights of any three grab samples differ from their mean by no more than 0.3 g/g-mole (0.3 lb/lb-mole). Average these three molecular weights, and report the results to the nearest 0.1 g/g-mole (lb/lbmole). 3.2 Single-Point. Integrated Sampling and Analytical Procedure. 3.2.1 The sampling point in the duct shall be located as specified in Section 3.1.1. 3.2.2 Leak-check (optional) the flexible bag as in Section 2.2.6. Set up the equipment as shown in Figure 3-2. Just prior to sampling, leak-check (optional) the train by placing a vacuum gauge at the condenser inlet, pulling a vacuum of at least 250 mm Hg (10 in. Hg), plugging the outlet at the quick disconnect, and then turning off the pump. The vacuum should remain stable for at least 0.5 minute. Evacuate the flexible bag. Connect the probe and place it in the stack, with the tip of the probe positioned at the sampling point; purge the sampling line. Next, connect the bag and make sure that all connections are tight and leak free. 3.2.3 Sample at a constant rate. The sampling run should be simultaneous with. and for the same total length of time as, the pollutant emission rate determination. Collection of at least 30 liters (1.00 ft3) of sample gas is recommended: however, smaller volumes may be collected. if desired. 3.2.4 Obtain one integrated flue gas sample during each pollutant emission rate determination. Within 8 hours after the sample is taken, analyze It for percent CO2 and percent O, using either an Orsat analyzer or a Fyrite-type combustion gas analyzer. If an Orsat analyzer is used, it is recommended that the Orsat leak-check described in Section 5 be performed before this deter. mination; however, the check is optional. Determine the percentage of the gas that is N, and CO by subtracting the sum of the percent CO, and percent O, from 100 percent. Calculate the dry molecular weight as indicated in Section 6.3. 3.2.5 Repeat the analysis and calculation procedures until the individual dry molecular weights for any three analyses differ from their mean by no more than 0.3 g/g- mole (0.3 Ib/lb-mole). Average these three molecular weights, and report the results to the nearest 0.1 g/g-mole (0.1 lb/lb-mole). 3.3 Multi-Point, Integrated Sampling and Analytical Procedure. 3.3.1 Unless otherwise specified by the Administrator, a minimum of eight traverse points shall be used for circular stacks having diameters less than 0.61 m (24 in.), a minimum of nine shall be used for rectangular stacks having equivalent diameters less than 0.61 m (24 in.), and a minimum of twelve traverse points shall be used for all other cases. The traverse points shall be 10. cated according to Method 1. The use of fewer points is subject to approval of the Administrator. 3.3.2 Follow the procedures outlined in sections 3.2.2 throught 3.2.5, except for the following: traverse all sampling points and sample at each point for an equal length of time. Record sampling data as shown in Figure 3-3. 4. Emission Rate Correction Factor or Excess Air Determination NOTE: A Fyrite-type combustion gas analyzer is not acceptable for excess air or emission rate correction factor determination, unless approved by the Administrator. If both percent CO, and percent O. are measured, the analytical results of any of the three procedures given below may also be used for calculating the dry molecular weight. Each of the three procedures below shall be used only when specified in an applicable subpart of the standards. The use of these procedures for other purposes must have specific prior approval of the Administrator. STATIONARY SOURCES S-686 121:1576.1 4.1 Single-Point, Grab Sampling and Analytical Procedure. 4.1.1 The sampling point in the duct shall either be at the centroid of the crosssection or at a point no closer to the walls than 1.00 m (3.3 ft). unless otherwise specified by the Administrator. 4.1.2 Set up the equipment as shown in Figure 3-1, making sure all connections ahead of the analyzer are tight and leakfree. Leak-check the Orsat analyzer according to the procedure described in Section 5. This leak-check is mandatory. TRAVERSE Q TIME PT. 1pm % DEV. AVERAGE a 0 avg % DEV = ) 100 0 avg (MUST BE 10%) Figure 3-3. Sampling rate data. 4.1.3 Place the probe in the stack. with the tip of the probe positioned at the sampling point; purge the sampling line. Draw a sample into the analyzer. For emission rate correction factor determination, immediate. ly analyze the sample, as outlined in Sections 4.1.4 and 4.1.5, for percent CO, or per. cent O2. If excess air is desired, proceed as follows: (1) immediately analyze the sample, as in Sections 4,1.4 and 4.1.5, for percent CO2, O,, and CO; (2) determine the percentage of the gas that is N, by subtracting the sum of the percent CO2, percent O,, and percent CO from 100 percent: and (3) calculate percent excess air as outlined in Section 6.2. 4.1.4 To insure complete absorption of the CO,, O., or if applicable. CO, make repeated passes through each absorbing solution until two consecutive readings are the same. Several passes (three or four) should be made between readings. (If constant readings cannot be obtained after three consecutive readings, replace the absorbing so. lution.) 4.1.5 After the analysis is completed, leak-check (mandatory) the Orsat analyzer once again. as described in Section 5. For the results of the analysis to be valid, the Orsat analyzer must pass this leak test before and after the analysis. NOTE: Since this single-point. grab sampling and analytical procedure in normally conducted in conjunction with a singlepoint. grab sampling and analytical procedure for a pollutant. only one analysis is ordinarily conducted. Therefore, great care must be taken to obtain a valid sample and analysis. Although in most cases only CO, or O, is required. it is recommended that both CO2 and O₂ be measured, and that Section 4.4 be used to validate the analytical data. [4.1.5 Note amended by 48 FR 49459, October 25, 1983] 4.2 Single-Point. Integrated Sampling and Analytical Procedure. 4.2.1 The sampling point in the duct shall be located as specified in Section 4.1.1. 4.2.2 Leak-check (mandatory) the flexible bag as in Section 2.2.6. Set up the equipment as shown in Figure 3-2. Just prior to sampling. leak-check (mandatory) the train by placing a vacuum gauge at the condenser Inlet, pulling a vacuum of a least 250 mm Hg (10 in. Hg), plugging the outlet at the quick disconnect, and then turning off the pump. The vacuum shall remain stable for at least 0.5 minute. Evacuate the flexible bag. Connect the probe and place it in the stack, with the tip of the probe positioned at the sampling point; purge the sampling line. Next, connect the bag and make sure that all connections are tight and leak free. 4.2.3 Sample at a constant rate, or as specified by the Administrator. The sampling run must be simultaneous with, and for the same total lengh of time as, the pollutant emission rate determination. Collect at least 30 liters (1.00 ft3) of sample gas. Smaller volumes may be collected, subject to approval of the Administrator. 4.2.4 Obtain one integrated flue gas sample during each pollutant emission rate determination. For emission rate correction factor determination, analyze the sample within 4 hours after It is taken for percent CO, or percent O2 (as outlined in Sections 4.2.5 through 4.2.7). The Orsat analyzer must be leak-check (see Section 5) before the analysis. If excess air is desired, proceed as follows: (1) within 4 hours after the sample is taken, analyze it (as in Sections 4.2.5 through 4.2.7) for percent CO2. O2, and CO: (2) determine the percentage of the gas that is N, by subtracting the sum of the percent CO2. percent O2, and percent CO from 100 percent: (3) calculate percent excess air. as outlined in Section 6.2. 4.2.5 To insure complete absorption 01 the CO,, O2. or If applicable, CO, make repeated passes through each absorbing solution until two consecutive readings are the same. Several passes (three of four) should be make between readings. (If constant readings cannot be obtained after three consecutive readings, replace the absorbing solution.) 4.2.6 Repeat the analysis until the following criteria are met: 4.2.6.1 For percent CO2. repeat the analytical procedure until the results of any three analyses differ by no more that (a) 0.3 percent by volume when CO2 is greater than 4.0 percent or (b) 0.2 percent by volume when CO2 is less than or equal to 4.0 percent. Average the three acceptable values of percent CO, and report the results to the nearest 0.1 percent. 2-17-84 121:1576.2 4.2.6.2 For percent O2. repeat the analyt. ical procedure until the results of any three analyses differ by no more than (a) 0.3 percent by volume when O, IS less than 15.0 percent or (b) 0.2 percent by volume when O₂ is greater than or equal to 15.0 percent. Average the three acceptable values of percent O₂ and report the results to the nearest 0.1 percent. 4.2.6.3 For percent CO. repeat the analytical procedure until the results of any three analyses differ by no more than 0.3 percent. Average the three acceptable values of percent CO and report the results to the nearest 0.1 percent. 4.2.7 After the analysis is completed. leak-check (mandatory) the Orsat analyzer once again, as described in Section 5. For the results of the analysis to be valid, the Orsal analyzer must pass this leak test before an after the analysis. NOTE. Although in most instances only CO, or O₂ is required. It is recommended that both CO₂ and O2 be measured. and that Section 4.4 to be used to validate the analytical data. [4.2.7 Note amended by 48 FR 49459, October 25, 1983] 4.3 Multi-Point, Integrated Sampling and Analytical Procedure. 4.3.1 Both the minimum number of sampling points and the sampling point location shall be as specified in Section 3.3.1 of this method. The use of fewer points than specified is subject to the approval of the Administrator. 4.3.2 Follow the procedures outlined in Sections 4.2.2 through 4.2.7. except for the following: Traverse all sampling points and sample at each point for an equal length of time. Record sampling data as shown in Figure 3-3. [Section 4.4 added by 48 FR 49459, October 25, 1983] 4.4 Quality Control Procedures. 4.4.1 Data Validation When Both CO2 and O2 Are Measured Although in most instances. only CO₂ or O2 measurement is required. it is recommended that both CO2 and O2 be measured to provide a check on the quality of the data. The following quality control procedure is suggested. Note-Since the method for validating the CO2 and O2 analyses is based on combustion of organic and fossil fuels and dilution of the gas stream with air, this method does not apply to sources that (1) remove CO2 or O₂ through processes other than combuation, (2) add O₂ (e.g., oxygen enrichment) and N2 in proportions different from that of air, (3) add CO2 (e.g., cement or lime kilns). or (4) have no fuel factor. For values obtainable (e 8., extremely variable waste mixtures). This method validates the measured proportions of CO2 and O2 for the fuel type, but the method does not detect sample dilution resulting from leaks during or after sample collection. The method is applicable for samples collected downstream of most lime or limestone flue-gas desulfurization units as the CO2 added or removed from the gas stream is not significant in relation to the total CO2 concentration. The CO2 concentrations from other types of scrubbers using only water or basic slurry can be significantly affected and would render the F. check minimally useful. 4.4.1.1 Calculate 8 fuel factor, Fo. using the following equation: 20.9-%O₂ F.= %CO₂ Eq. 3-3 Where: %O2 = Percent O₂ by volume (dry besis). Percent CO2 by volume (dry basis). Percent O2 by volume in ambient air. If CO is present in quantities measurable by this method, adjust the O2 and CO2 values before performing the calculation for F. as follows: Where: %CO=Percent CO by volume (dry basis). 4.4.1.2 Compare the calculated F. factor with the expected F. values. The following table may be used in establishing acceptable ranges for the expected F. if the fuel being burned is known. When fuels are burned in combination. calculate the combined fuel F. and F. factors (us defined in Method 19) according to the procedure in Method 19