[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: 40CFR125.59]



[Page 316-319]

 

                   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 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



[[Page 317]]



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 Sec. Sec.  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 Sec. Sec.  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 Sec. Sec.  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 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 Sec. Sec.  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 Sec. Sec.  124.53 through 124.55 on or before the date the 

application is submitted to EPA.



[[Page 318]]



    (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 Sec. Sec.  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 Sec. Sec.  

125.60 and 125.65 by the following deadlines:

    (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 Sec. Sec.  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 Sec. Sec.  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



[[Page 319]]



be based on the applicant's demonstration that it has met all the 

requirements of Sec. Sec.  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 Sec. Sec.  125.60 and 125.65, as determined appropriate 

by 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.