[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: 40CFR125.73]

[Page 326-327]
 
                   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 H--Criteria for Determining Alternative Effluent Limitations 
                     Under Section 316(a) of the Act
 
Sec. 125.73  Criteria and standards for the determination of alternative 
effluent limitations under section 316(a).

    (a) Thermal discharge effluent limitations or standards established 
in permits may be less stringent than those required by applicable 
standards and limitations if the discharger demonstrates to the 
satisfaction of the director that such effluent limitations are more 
stringent than necessary to assure the protection and propagation of a 
balanced, indigenous community of shellfish, fish and wildlife in and on 
the body of water into which the discharge is made. This demonstration 
must show that the alternative effluent limitation desired by the 
discharger, considering the cumulative impact of its thermal discharge 
together with all other significant impacts on the species affected, 
will assure the protection and propagation of a balanced indigenous 
community of shellfish, fish and wildlife in and on the body of water 
into which the discharge is to be made.
    (b) In determining whether or not the protection and propagation of 
the affected species will be assured, the Director may consider any 
information contained or referenced in any applicable thermal water 
quality criteria and thermal water quality information published by the 
Administrator under section 304(a) of the Act, or any other information 
he deems relevant.

[[Page 327]]

    (c) (1) Existing dischargers may base their demonstration upon the 
absence of prior appreciable harm in lieu of predictive studies. Any 
such demonstrations shall show:
    (i) That no appreciable harm has resulted from the normal component 
of the discharge (taking into account the interaction of such thermal 
component with other pollutants and the additive effect of other thermal 
sources to a balanced, indigenous community of shellfish, fish and 
wildlife in and on the body of water into which the discharge has been 
made; or
    (ii) That despite the occurrence of such previous harm, the desired 
alternative effluent limitations (or appropriate modifications thereof) 
will nevertheless assure the protection and propagation of a balanced, 
indigenous community of shellfish, fish and wildlife in and on the body 
of water into which the discharge is made.
    (2) In determining whether or not prior appreciable harm has 
occurred, the Director shall consider the length of time in which the 
applicant has been discharging and the nature of the discharge.