[Code of Federal Regulations]

[Title 40, Volume 21]

[Revised as of July 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 40CFR125.57]



[Page 312-314]

 

                   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



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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;

    (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



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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.