[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: 40CFR125.59]

[Page 309-313]
 
                   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. 125.59  General.

    (a) Basis for application. An application under this subpart shall 
be based on a current, improved, or altered discharge into ocean waters 
or saline estuarine waters.
    (b) Prohibitions. No section 301(h) modified permit shall be issued:
    (1) Where such issuance would not assure compliance with all 
applicable requirements of this subpart and part 122;
    (2) For the discharge of sewage sludge;
    (3) Where such issuance would conflict with applicable provisions of 
State, local, or other Federal laws or Executive Orders. This includes 
compliance with the Coastal Zone Management Act of 1972, as amended, 16 
U.S.C. 1451 et seq.; the Endangered Species Act of 1973, as amended, 16 
U.S.C. 1531 et

[[Page 310]]

seq.; and Title III of the Marine Protection, Research and Sanctuaries 
Act, as amended, 16 U.S.C. 1431 et seq.;
    (4) Where the discharge of any pollutant enters 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; or
    (5) Where the discharge of any pollutant is into the New York Bight 
Apex.
    (c) Applications. Each applicant for a modified permit under this 
subpart shall submit an application to EPA signed in compliance with 40 
CFR part 122, subpart B, which shall contain:
    (1) A signed, completed NPDES Application Standard form A, parts I, 
II, III;
    (2) A completed Application Questionnaire;
    (3) The certification in accordance with 40 CFR 122.22(d);
    (4) In addition to the requirements of Sec. 125.59(c) (1) through 
(3), applicants for permit renewal shall support continuation of the 
modification by supplying to EPA the results of studies and monitoring 
performed in accordance with Sec. 125.63 during the life of the permit. 
Upon a demonstration meeting the statutory criteria and requirements of 
this subpart, the permit may be renewed under the applicable procedures 
of 40 CFR part 124.
    (d) Revisions to applications. (1) POTWs which submitted 
applications in accordance with the June 15, 1979, regulations (44 FR 
34784) may revise their applications one time following a tentative 
decision to propose changes to treatment levels and/or outfall and 
diffuser location and design in accordance with Sec. 125.59(f)(2)(i); 
and
    (2) Other applicants may revise their applications one time 
following a tentative decision to propose changes to treatment levels 
and/or outfall and diffuser location and design in accordance with 
Sec. 125.59(f)(2)(i). Revisions by such applicants which propose 
downgrading treatment levels and/or outfall and diffuser location and 
design must be justified on the basis of substantial changes in 
circumstances beyond the applicant's control since the time of 
application submission.
    (3) Applicants authorized or requested to submit additional 
information under Sec. 125.59(g) may submit a revised application in 
accordance with Sec. 125.59(f)(2)(ii) where such additional information 
supports changes in proposed treatment levels and/or outfall location 
and diffuser design. The opportunity for such revision shall be in 
addition to the one-time revision allowed under Sec. 125.59(d) (1) and 
(2).
    (4) POTWs which revise their applications must:
    (i) Modify their NPDES form and Application Questionnaire as needed 
to ensure that the information filed with their application is correct 
and complete;
    (ii) Provide additional analysis and data as needed to demonstrate 
compliance with this subpart;
    (iii) Obtain new State determinations under Secs. 125.61(b)(2) and 
125.64(b); and
    (iv) Provide the certification described in paragraph (c)(3) of this 
section.
    (5) Applications for permit renewal may not be revised.
    (e) Submittal of additional information to demonstrate compliance 
with Secs. 125.60 and 125.65. (1) On or before the deadline established 
in paragraph (f)(3) of this section, applicants shall submit a letter of 
intent to demonstrate compliance with Secs. 125.60 and 125.65. The 
letter of intent is subject to approval by the Administrator based on 
the requirements of this paragraph and paragraph (f)(3) of this section. 
The letter of intent shall consist of the following:
    (i) For compliance with Sec. 125.60: (A) A description of the 
proposed treatment system which upgrades treatment to satisfy the 
requirements of Sec. 125.60.
    (B) A project plan, including a schedule for data collection and for 
achieving compliance with Sec. 125.60. The

[[Page 311]]

project plan shall include dates for design and construction of 
necessary facilities, submittal of influent/effluent data, and submittal 
of any other information necessary to demonstrate compliance with 
Sec. 125.60. The Administrator will review the project plan and may 
require revisions prior to authorizing submission of the additional 
information.
    (ii) For compliance with Sec. 125.65: (A) A determination of what 
approach will be used to achieve compliance with Sec. 125.65.
    (B) A project plan for achieving compliance. The project plan shall 
include any necessary data collection activities, submittal of 
additional information, and/or development of appropriate pretreatment 
limits to demonstrate compliance with Sec. 125.65. The Administrator 
will review the project plan and may require revisions prior to 
submission of the additional information.
    (iii) POTWs which submit additional information must:
    (A) Modify their NPDES form and Application Questionnaire as needed 
to ensure that the information filed with their application is correct 
and complete;
    (B) Obtain new State determinations under Secs. 125.61(b)(2) and 
125.64(b); and
    (C) Provide the certification described in paragraph (c)(3) of this 
section.
    (2) The information required under this paragraph must be submitted 
in accordance with the schedules in Sec. 125.59(f)(3)(ii). If the 
applicant does not meet these schedules for compliance, EPA may deny the 
application on that basis.
    (f) Deadlines and distribution-- (1) Applications.(i) The 
application for an original 301(h) permit for POTWs which directly 
discharges effluent into saline waters shall be submitted to the 
appropriate EPA Regional Administrator no later than December 29, 1982.
    (ii) The application for renewal of a 301(h) modified permit shall 
be submitted no less than 180 days prior to the expiration of the 
existing permit, unless permission for a later date has been granted by 
the Administrator. (The Administrator shall not grant permission for 
applications to be submitted later than the expiration date of the 
existing permit.)
    (iii) A copy of the application shall be provided to the State and 
interstate agency(s) authorized to provide certification/concurrence 
under Secs. 124.53 through 124.55 on or before the date the application 
is submitted to EPA.
    (2) Revisions to Applications. (i) Applicants desiring to revise 
their applications under Sec. 125.59 (d)(1) or (d)(2) must:
    (A) Submit to the appropriate Regional Administrator a letter of 
intent to revise their application either within 45 days of the date of 
EPA's tentative decision on their original application or within 45 days 
of November 26, 1982, whichever is later. Following receipt by EPA of a 
letter of intent, further EPA proceedings on the tentative decision 
under 40 CFR part 124 will be stayed.
    (B) Submit the revised application as described for new applications 
in Sec. 125.59(f)(1) either within one year of the date of EPA's 
tentative decision on their original application or within one year of 
November 26, 1982, if a tentative decision has already been made, 
whichever is later.
    (ii) Applicants desiring to revise their applications under 
Sec. 125.59(d)(3) must submit the revised application as described for 
new applications in Sec. 125.59(f)(1) concurrent with submission of the 
additional information under Sec. 125.59(g).
    (3) Deadline for additional information to demonstrate compliance 
with Secs. 125.60 and 125.65.
    (i) A letter of intent required under Sec. 125.59(e)(1) must be 
submitted by the following dates: for permittees with 301(h) 
modifications or for applicants to which a tentative or final decision 
has been issued, November 7, 1994; for all others, within 90 days after 
the Administrator issues a tentative decision on an application. 
Following receipt by EPA of a letter of intent containing the 
information required in Sec. 125.59(e)(1), further EPA proceedings on 
the tentative decision under 40 CFR part 124 will be stayed.
    (ii) The project plan submitted under Sec. 125.59(e)(1) shall ensure 
that the applicant meets all the requirements of Secs. 125.60 and 125.65 
by the following deadlines:

[[Page 312]]

    (A) By August 9, 1996 for applicants that are not grandfathered 
under Sec. 125.59(j).
    (B) At the time of permit renewal or by August 9, 1996, whichever is 
later, for applicants that are grandfathered under Sec. 125.59(j).
    (4) State determination deadline. State determinations, as required 
by Secs. 125.61(b)(2) and 125.64(b) shall be filed by the applicant with 
the appropriate Regional Administrator no later than 90 days after 
submission of the revision to the application or additional information 
to EPA. Extensions to this deadline may be provided by EPA upon request. 
However, EPA will not begin review of the revision to the application or 
additional information until a favorable State determination is received 
by EPA. Failure to provide the State determination within the timeframe 
required by this paragraph (f)(4) is a basis for denial of the 
application.
    (g)(1) The Administrator may authorize or request an applicant to 
submit additional information by a specified date not to exceed one year 
from the date of authorization or request.
    (2) Applicants seeking authorization to submit additional 
information on current/modified discharge characteristics, water 
quality, biological conditions or oceanographic characteristics must:
    (i) Demonstrate that they made a diligent effort to provide such 
information with their application and were unable to do so, and
    (ii) Submit a plan of study, including a schedule, for data 
collection and submittal of the additional information. EPA will review 
the plan of study and may require revisions prior to authorizing 
submission of the additional information.
    (h) Tentative decisions on section 301(h) modifications. The 
Administrator shall grant a tentative approval or a tentative denial of 
a section 301(h) modified permit application. To qualify for a tentative 
approval, the applicant shall demonstrate to the satisfaction of the 
Administrator that it is using good faith means to come into compliance 
with all the requirements of this subpart and that it will meet all such 
requirements based on a schedule approved by the Administrator. For 
compliance with Secs. 125.60 and 125.65, such schedule shall be in 
accordance with Sec. 125.59(f)(3)(ii).
    (i) Decisions on section 301(h) modifications. (1) The decision to 
grant or deny a section 301(h) modification shall be made by the 
Administrator and shall be based on the applicant's demonstration that 
it has met all the requirements of Secs. 125.59 through 125.68.
    (2) No section 301(h) modified permit shall be issued until the 
appropriate State certification/concurrence is granted or waived 
pursuant to Sec. 124.54 or if the State denies certification/ 
concurrence pursuant to Sec. 124.54.
    (3) In the case of a modification issued to an applicant in a State 
administering an approved permit program under 40 CFR part 123, the 
State Director may:
    (i) Revoke an existing permit as of the effective date of the EPA 
issued section 301(h) modified permit; and
    (ii) Cosign the section 301(h) modified permit if the Director has 
indicated an intent to do so in the written concurrence.
    (4) Any section 301(h) modified permit shall:
    (i) Be issued in accordance with the procedures set forth in 40 CFR 
part 124, except that, because section 301(h) permits may be issued only 
by EPA, the terms ``Administrator or a person designated by the 
Administrator'' shall be substituted for the term ``Director'' as 
appropriate; and
    (ii) Contain all applicable terms and conditions set forth in 40 CFR 
part 122 and Sec. 125.68.
    (5) Appeals of section 301(h) determinations shall be governed by 
the procedures in 40 CFR part 124.
    (j) Grandfathering provision. Applicants that received tentative or 
final approval for a section 301(h) modified permit prior to February 4, 
1987, are not subject to Sec. 125.60, the water quality criteria 
provisions of Sec. 125.62(a)(1), or Sec. 125.65 until the time of permit 
renewal. In addition, if permit renewal will occur prior to August 9, 
1996, applicants may have additional time to come into compliance with 
Secs. 125.60 and 125.65, as determined appropriate by

[[Page 313]]

EPA on a case-by-case basis. Such additional time, however, shall not 
extend beyond August 9, 1996. This paragraph does not apply to any 
application that was initially tentatively approved, but as to which EPA 
withdrew its tentative approval or issued a tentative denial prior to 
February 4, 1987.