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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