[Code of Federal Regulations]
[Title 40, Volume 19]
[Revised as of July 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 40CFR125.57]

[Page 306-307]
 
                   TITLE 40--PROTECTION OF ENVIRONMENT
 
         CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)
 
PART 125--CRITERIA AND STANDARDS FOR THE NATIONAL POLLUTANT DISCHARGE 
ELIMINATION SYSTEM--Table of Contents
 
 Subpart G--Criteria for Modifying the Secondary Treatment Requirements 
               Under Section 301(h) of the Clean Water Act
 
Sec. 125.57  Law governing issuance of a section 301(h) modified permit.

    (a) Section 301(h) of the Clean Water Act provides that:

    Administrator, with the concurrence of the State, may issue a permit 
under section 402 which modifies the requirements of paragraph (b)(1)(B) 
of this section with respect to the discharge of any pollutant from a 
publicly owned treatment works into marine waters, if the applicant 
demonstrates to the satisfaction of the Administrator that--
    (1) There is an applicable water quality standard specific to the 
pollutant for which the modification is requested, which has been 
identified under section 304(a)(6) of this Act;
    (2) The discharge of pollutants in accordance with such modified 
requirements will not interfere, alone or in combination with pollutants 
from other sources, with the attainment or maintenance of that water 
quality which assures protection of public water supplies and protection 
and propagation of a balanced indigenous population of shellfish, fish, 
and wildlife, and allows recreational activities, in and on the water;
    (3) The applicant has established a system for monitoring the impact 
of such discharge on a representative sample of aquatic biota, to the 
extent practicable, and the scope of such monitoring is limited to 
include only those scientific investigations which are necessary to 
study the effects of the proposed discharge;
    (4) Such modified requirements will not result in any additional 
requirements on any other point or nonpoint source;
    (5) All applicable pretreatment requirements for sources introducing 
waste into such treatment works will be enforced;
    (6) In the case of any treatment works serving a population of 
50,000 or more, with respect to any toxic pollutant introduced into such 
works by an industrial discharger for which pollutant there is no 
applicable pretreatment requirement in effect, sources introducing waste 
into such works are in compliance with all applicable pretreatment 
requirements, the applicant will enforce such requirements, and the 
applicant has in effect a pretreatment program which, in combination 
with the treatment of discharges from such works, removes the same 
amount of such pollutant as would be removed if such works were to apply 
secondary treatment to discharges and if such works had no pretreatment 
program with respect to such pollutant;
    (7) To the extent practicable, the applicant has established a 
schedule of activities designed to eliminate the entrance of toxic 
pollutants from nonindustrial sources into such treatment works;

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    (8) There will be no new or substantially increased discharges from 
the point source of the pollutant to which the modification applies 
above that volume of discharge specified in the permit;
    (9) The applicant at the time such modification becomes effective 
will be discharging effluent which has received at least primary or 
equivalent treatment and which meets the criteria established under 
section 304(a)(1) of this Act after initial mixing in the waters 
surrounding or adjacent to the point at which such effluent is 
discharged.
    For the purposes of this section, the phrase ``the discharge of any 
pollutant into marine waters'' refers to a discharge into deep waters of 
the territorial sea or the waters of the contiguous zone, or into saline 
estuarine waters where there is strong tidal movement and other 
hydrological and geological characteristics which the Administrator 
determines necessary to allow compliance with paragraph (2) of this 
section, and section 101(a)(2) of this Act. For the purposes of 
paragraph (9), ``primary or equivalent treatment'' means treatment by 
screening, sedimentation, and skimming adequate to remove at least 30 
percent of the biological oxygen demanding material and of the suspended 
solids in the treatment works influent, and disinfection, where 
appropriate. A municipality which applies secondary treatment shall be 
eligible to receive a permit pursuant to this subsection which modifies 
the requirements of paragraph (b)(1)(B) of this section with respect to 
the discharge of any pollutant from any treatment works owned by such 
municipality into marine waters. No permit issued under this subsection 
shall authorize the discharge of sewage sludge into marine waters. In 
order for a permit to be issued under this subsection for the discharge 
of a pollutant into marine waters, such marine waters must exhibit 
characteristics assuring that water providing dilution does not contain 
significant amounts of previously discharged effluent from such 
treatment works. No permit issued under this subsection shall authorize 
the discharge of any pollutant into saline estuarine waters which at the 
time of application do not support a balanced indigenous population of 
shellfish, fish, and wildlife, or allow recreation in and on the waters 
or which exhibit ambient water quality below applicable water quality 
standards adopted for the protection of public water supplies, 
shellfish, fish, and wildlife or recreational activities or such other 
standards necessary to assure support and protection of such uses. The 
prohibition contained in the preceding sentence shall apply without 
regard to the presence or absence of a causal relationship between such 
characteristics and the applicant's current or proposed discharge. 
Notwithstanding any other provisions of this subsection, no permit may 
be issued under this subsection for discharge of a pollutant into the 
New York Bight Apex consisting of the ocean waters of the Atlantic Ocean 
westward of 73 degrees 30 minutes west longitude and northward of 40 
degrees 10 minutes north latitude.

    (b) Section 301(j)(1) of the Clean Water Act provides that:

    Any application filed under this section for a modification of the 
provisions of--
    (A) subsection (b)(1)(B) under subsection (h) of this section shall 
be filed not later than the 365th day which begins after the date of 
enactment of the Municipal Wastewater Treatment Construction Grant 
Amendments of 1981, except that a publicly owned treatment works which 
prior to December 31, 1982, had a contractual arrangement to use a 
portion of the capacity of an ocean outfall operated by another publicly 
owned treatment works which has applied for or received modification 
under subsection (h) may apply for a modification of subsection (h) in 
its own right not later than 30 days after the date of the enactment of 
the Water Quality Act of 1987.

    (c) Section 22(e) of the Municipal Wastewater Treatment Construction 
Grant Amendments of 1981, Public Law 97-117, provides that:

    The amendments made by this section shall take effect on the date of 
enactment of this Act except that no applicant, other than the city of 
Avalon, California, who applies after the date of enactment of this Act 
for a permit pursuant to subsection (h) of section 301 of the Federal 
Water Pollution Control Act which modifies the requirements of 
subsection (b)(1)(B) of section 301 of such Act shall receive such 
permit during the one-year period which begins on the date of enactment 
of this Act.

    (d) Section 303(b)(2) of the Water Quality Act, Public Law 100-4, 
provides that:

    Section 301(h)(3) shall only apply to modifications and renewals of 
modifications which are tentatively or finally approved after the date 
of the enactment of this Act.

    (e) Section 303(g) of the Water Quality Act provides that:

    The amendments made to sections 301(h) and (h)(2), as well as 
provisions of (h)(6) and (h)(9), shall not apply to an application for a 
permit under section 301(h) of the Federal Water Pollution Control Act 
which has been tentatively or finally approved by the Administrator 
before the date of the enactment of this Act; except that such 
amendments shall apply to all renewals of such permits after such date 
of enactment.

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