[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: 40CFR125.73]



[Page 333]

 

                   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.

    (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.