TITLE 33 - NAVIGATION AND NAVIGABLE WATERS
CHAPTER 26 - WATER POLLUTION PREVENTION AND CONTROL
SUBCHAPTER III - STANDARDS AND ENFORCEMENT
HEAD
Sec. 1311. Effluent limitations
STATUTE
(a) Illegality of pollutant discharges except in compliance with
law
Except as in compliance with this section and sections 1312,
1316, 1317, 1328, 1342, and 1344 of this title, the discharge of
any pollutant by any person shall be unlawful.
(b) Timetable for achievement of objectives
In order to carry out the objective of this chapter there shall
be achieved -
(1)(A) not later than July 1, 1977, effluent limitations for
point sources, other than publicly owned treatment works, (i)
which shall require the application of the best practicable
control technology currently available as defined by the
Administrator pursuant to section 1314(b) of this title, or (ii)
in the case of a discharge into a publicly owned treatment works
which meets the requirements of subparagraph (B) of this
paragraph, which shall require compliance with any applicable
pretreatment requirements and any requirements under section 1317
of this title; and
(B) for publicly owned treatment works in existence on July 1,
1977, or approved pursuant to section 1283 of this title prior to
June 30, 1974 (for which construction must be completed within
four years of approval), effluent limitations based upon
secondary treatment as defined by the Administrator pursuant to
section 1314(d)(1) of this title; or,
(C) not later than July 1, 1977, any more stringent limitation,
including those necessary to meet water quality standards,
treatment standards, or schedules of compliance, established
pursuant to any State law or regulations (under authority
preserved by section 1370 of this title) or any other Federal law
or regulation, or required to implement any applicable water
quality standard established pursuant to this chapter.
(2)(A) for pollutants identified in subparagraphs (C), (D), and
(F) of this paragraph, effluent limitations for categories and
classes of point sources, other than publicly owned treatment
works, which (i) shall require application of the best available
technology economically achievable for such category or class,
which will result in reasonable further progress toward the
national goal of eliminating the discharge of all pollutants, as
determined in accordance with regulations issued by the
Administrator pursuant to section 1314(b)(2) of this title, which
such effluent limitations shall require the elimination of
discharges of all pollutants if the Administrator finds, on the
basis of information available to him (including information
developed pursuant to section 1325 of this title), that such
elimination is technologically and economically achievable for a
category or class of point sources as determined in accordance
with regulations issued by the Administrator pursuant to section
1314(b)(2) of this title, or (ii) in the case of the introduction
of a pollutant into a publicly owned treatment works which meets
the requirements of subparagraph (B) of this paragraph, shall
require compliance with any applicable pretreatment requirements
and any other requirement under section 1317 of this title;
(B) Repealed. Pub. L. 97-117, Sec. 21(b), Dec. 29, 1981, 95
Stat. 1632.
(C) with respect to all toxic pollutants referred to in table 1
of Committee Print Numbered 95-30 of the Committee on Public
Works and Transportation of the House of Representatives
compliance with effluent limitations in accordance with
subparagraph (A) of this paragraph as expeditiously as
practicable but in no case later than three years after the date
such limitations are promulgated under section 1314(b) of this
title, and in no case later than March 31, 1989;
(D) for all toxic pollutants listed under paragraph (1) of
subsection (a) of section 1317 of this title which are not
referred to in subparagraph (C) of this paragraph compliance with
effluent limitations in accordance with subparagraph (A) of this
paragraph as expeditiously as practicable, but in no case later
than three years after the date such limitations are promulgated
under section 1314(b) of this title, and in no case later than
March 31, 1989;
(E) as expeditiously as practicable but in no case later than
three years after the date such limitations are promulgated under
section 1314(b) of this title, and in no case later than March
31, 1989, compliance with effluent limitations for categories and
classes of point sources, other than publicly owned treatment
works, which in the case of pollutants identified pursuant to
section 1314(a)(4) of this title shall require application of the
best conventional pollutant control technology as determined in
accordance with regulations issued by the Administrator pursuant
to section 1314(b)(4) of this title; and
(F) for all pollutants (other than those subject to
subparagraphs (C), (D), or (E) of this paragraph) compliance with
effluent limitations in accordance with subparagraph (A) of this
paragraph as expeditiously as practicable but in no case later
than 3 years after the date such limitations are established, and
in no case later than March 31, 1989.
(3)(A) for effluent limitations under paragraph (1)(A)(i) of
this subsection promulgated after January 1, 1982, and requiring
a level of control substantially greater or based on
fundamentally different control technology than under permits for
an industrial category issued before such date, compliance as
expeditiously as practicable but in no case later than three
years after the date such limitations are promulgated under
section 1314(b) of this title, and in no case later than March
31, 1989; and
(B) for any effluent limitation in accordance with paragraph
(1)(A)(i), (2)(A)(i), or (2)(E) of this subsection established
only on the basis of section 1342(a)(1) of this title in a permit
issued after February 4, 1987, compliance as expeditiously as
practicable but in no case later than three years after the date
such limitations are established, and in no case later than March
31, 1989.
(c) Modification of timetable
The Administrator may modify the requirements of subsection
(b)(2)(A) of this section with respect to any point source for
which a permit application is filed after July 1, 1977, upon a
showing by the owner or operator of such point source satisfactory
to the Administrator that such modified requirements (1) will
represent the maximum use of technology within the economic
capability of the owner or operator; and (2) will result in
reasonable further progress toward the elimination of the discharge
of pollutants.
(d) Review and revision of effluent limitations
Any effluent limitation required by paragraph (2) of subsection
(b) of this section shall be reviewed at least every five years
and, if appropriate, revised pursuant to the procedure established
under such paragraph.
(e) All point discharge source application of effluent limitations
Effluent limitations established pursuant to this section or
section 1312 of this title shall be applied to all point sources of
discharge of pollutants in accordance with the provisions of this
chapter.
(f) Illegality of discharge of radiological, chemical, or
biological warfare agents, high-level radioactive waste, or
medical waste
Notwithstanding any other provisions of this chapter it shall be
unlawful to discharge any radiological, chemical, or biological
warfare agent, any high-level radioactive waste, or any medical
waste, into the navigable waters.
(g) Modifications for certain nonconventional pollutants
(1) General authority
The Administrator, with the concurrence of the State, may
modify the requirements of subsection (b)(2)(A) of this section
with respect to the discharge from any point source of ammonia,
chlorine, color, iron, and total phenols (4AAP) (when determined
by the Administrator to be a pollutant covered by subsection
(b)(2)(F) of this section) and any other pollutant which the
Administrator lists under paragraph (4) of this subsection.
(2) Requirements for granting modifications
A modification under this subsection shall be granted only upon
a showing by the owner or operator of a point source satisfactory
to the Administrator that -
(A) such modified requirements will result at a minimum in
compliance with the requirements of subsection (b)(1)(A) or (C)
of this section, whichever is applicable;
(B) such modified requirements will not result in any
additional requirements on any other point or nonpoint source;
and
(C) such modification will not interfere with the attainment
or maintenance of that water quality which shall assure
protection of public water supplies, and the protection and
propagation of a balanced population of shellfish, fish, and
wildlife, and allow recreational activities, in and on the
water and such modification will not result in the discharge of
pollutants in quantities which may reasonably be anticipated to
pose an unacceptable risk to human health or the environment
because of bioaccumulation, persistency in the environment,
acute toxicity, chronic toxicity (including carcinogenicity,
mutagenicity or teratogenicity), or synergistic propensities.
(3) Limitation on authority to apply for subsection (c)
modification
If an owner or operator of a point source applies for a
modification under this subsection with respect to the discharge
of any pollutant, such owner or operator shall be eligible to
apply for modification under subsection (c) of this section with
respect to such pollutant only during the same time period as he
is eligible to apply for a modification under this subsection.
(4) Procedures for listing additional pollutants
(A) General authority
Upon petition of any person, the Administrator may add any
pollutant to the list of pollutants for which modification
under this section is authorized (except for pollutants
identified pursuant to section 1314(a)(4) of this title, toxic
pollutants subject to section 1317(a) of this title, and the
thermal component of discharges) in accordance with the
provisions of this paragraph.
(B) Requirements for listing
(i) Sufficient information
The person petitioning for listing of an additional
pollutant under this subsection shall submit to the
Administrator sufficient information to make the
determinations required by this subparagraph.
(ii) Toxic criteria determination
The Administrator shall determine whether or not the
pollutant meets the criteria for listing as a toxic pollutant
under section 1317(a) of this title.
(iii) Listing as toxic pollutant
If the Administrator determines that the pollutant meets
the criteria for listing as a toxic pollutant under section
1317(a) of this title, the Administrator shall list the
pollutant as a toxic pollutant under section 1317(a) of this
title.
(iv) Nonconventional criteria determination
If the Administrator determines that the pollutant does not
meet the criteria for listing as a toxic pollutant under such
section and determines that adequate test methods and
sufficient data are available to make the determinations
required by paragraph (2) of this subsection with respect to
the pollutant, the Administrator shall add the pollutant to
the list of pollutants specified in paragraph (1) of this
subsection for which modifications are authorized under this
subsection.
(C) Requirements for filing of petitions
A petition for listing of a pollutant under this paragraph -
(i) must be filed not later than 270 days after the date of
promulgation of an applicable effluent guideline under
section 1314 of this title;
(ii) may be filed before promulgation of such guideline;
and
(iii) may be filed with an application for a modification
under paragraph (1) with respect to the discharge of such
pollutant.
(D) Deadline for approval of petition
A decision to add a pollutant to the list of pollutants for
which modifications under this subsection are authorized must
be made within 270 days after the date of promulgation of an
applicable effluent guideline under section 1314 of this title.
(E) Burden of proof
The burden of proof for making the determinations under
subparagraph (B) shall be on the petitioner.
(5) Removal of pollutants
The Administrator may remove any pollutant from the list of
pollutants for which modifications are authorized under this
subsection if the Administrator determines that adequate test
methods and sufficient data are no longer available for
determining whether or not modifications may be granted with
respect to such pollutant under paragraph (2) of this subsection.
(h) Modification of secondary treatment requirements
The Administrator, with the concurrence of the State, may issue a
permit under section 1342 of this title which modifies the
requirements of subsection (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
been identified under section 1314(a)(6) of this title;
(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 the 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 1314(a)(1) of this title after
initial mixing in the waters surrounding or adjacent to the point
at which such effluent is discharged.
For the purposes of this subsection 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 subsection, and section 1251(a)(2) of
this title. 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 subsection (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.
(i) Municipal time extensions
(1) Where construction is required in order for a planned or
existing publicly owned treatment works to achieve limitations
under subsection (b)(1)(B) or (b)(1)(C) of this section, but (A)
construction cannot be completed within the time required in such
subsection, or (B) the United States has failed to make financial
assistance under this chapter available in time to achieve such
limitations by the time specified in such subsection, the owner or
operator of such treatment works may request the Administrator (or
if appropriate the State) to issue a permit pursuant to section
1342 of this title or to modify a permit issued pursuant to that
section to extend such time for compliance. Any such request shall
be filed with the Administrator (or if appropriate the State)
within 180 days after February 4, 1987. The Administrator (or if
appropriate the State) may grant such request and issue or modify
such a permit, which shall contain a schedule of compliance for the
publicly owned treatment works based on the earliest date by which
such financial assistance will be available from the United States
and construction can be completed, but in no event later than July
1, 1988, and shall contain such other terms and conditions,
including those necessary to carry out subsections (b) through (g)
of section 1281 of this title, section 1317 of this title, and such
interim effluent limitations applicable to that treatment works as
the Administrator determines are necessary to carry out the
provisions of this chapter.
(2)(A) Where a point source (other than a publicly owned
treatment works) will not achieve the requirements of subsections
(b)(1)(A) and (b)(1)(C) of this section and -
(i) if a permit issued prior to July 1, 1977, to such point
source is based upon a discharge into a publicly owned treatment
works; or
(ii) if such point source (other than a publicly owned
treatment works) had before July 1, 1977, a contract (enforceable
against such point source) to discharge into a publicly owned
treatment works; or
(iii) if either an application made before July 1, 1977, for a
construction grant under this chapter for a publicly owned
treatment works, or engineering or architectural plans or working
drawings made before July 1, 1977, for a publicly owned treatment
works, show that such point source was to discharge into such
publicly owned treatment works,
and such publicly owned treatment works is presently unable to
accept such discharge without construction, and in the case of a
discharge to an existing publicly owned treatment works, such
treatment works has an extension pursuant to paragraph (1) of this
subsection, the owner or operator of such point source may request
the Administrator (or if appropriate the State) to issue or modify
such a permit pursuant to such section 1342 of this title to extend
such time for compliance. Any such request shall be filed with the
Administrator (or if appropriate the State) within 180 days after
December 27, 1977, or the filing of a request by the appropriate
publicly owned treatment works under paragraph (1) of this
subsection, whichever is later. If the Administrator (or if
appropriate the State) finds that the owner or operator of such
point source has acted in good faith, he may grant such request and
issue or modify such a permit, which shall contain a schedule of
compliance for the point source to achieve the requirements of
subsections (b)(1)(A) and (C) of this section and shall contain
such other terms and conditions, including pretreatment and interim
effluent limitations and water conservation requirements applicable
to that point source, as the Administrator determines are necessary
to carry out the provisions of this chapter.
(B) No time modification granted by the Administrator (or if
appropriate the State) pursuant to paragraph (2)(A) of this
subsection shall extend beyond the earliest date practicable for
compliance or beyond the date of any extension granted to the
appropriate publicly owned treatment works pursuant to paragraph
(1) of this subsection, but in no event shall it extend beyond July
1, 1988; and no such time modification shall be granted unless (i)
the publicly owned treatment works will be in operation and
available to the point source before July 1, 1988, and will meet
the requirements of subsections (b)(1)(B) and (C) of this section
after receiving the discharge from that point source; and (ii) the
point source and the publicly owned treatment works have entered
into an enforceable contract requiring the point source to
discharge into the publicly owned treatment works, the owner or
operator of such point source to pay the costs required under
section 1284 of this title, and the publicly owned treatment works
to accept the discharge from the point source; and (iii) the permit
for such point source requires that point source to meet all
requirements under section 1317(a) and (b) of this title during the
period of such time modification.
(j) Modification procedures
(1) Any application filed under this section for a modification
of the provisions of -
(A) subsection (b)(1)(B) of this section under subsection (h)
of this section shall be filed not later that (!1) the 365th day
which begins after December 29, 1981, except that a publicly
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) of this section, may apply for a modification of subsection
(h) of this section in its own right not later than 30 days after
February 4, 1987, and except as provided in paragraph (5);
(B) subsection (b)(2)(A) of this section as it applies to
pollutants identified in subsection (b)(2)(F) of this section
shall be filed not later than 270 days after the date of
promulgation of an applicable effluent guideline under section
1314 of this title or not later than 270 days after December 27,
1977, whichever is later.
(2) Subject to paragraph (3) of this section, any application for
a modification filed under subsection (g) of this section shall not
operate to stay any requirement under this chapter, unless in the
judgment of the Administrator such a stay or the modification
sought will not result in the discharge of pollutants in quantities
which may reasonably be anticipated to pose an unacceptable risk to
human health or the environment because of bioaccumulation,
persistency in the environment, acute toxicity, chronic toxicity
(including carcinogenicity, mutagenicity, or teratogenicity), or
synergistic propensities, and that there is a substantial
likelihood that the applicant will succeed on the merits of such
application. In the case of an application filed under subsection
(g) of this section, the Administrator may condition any stay
granted under this paragraph on requiring the filing of a bond or
other appropriate security to assure timely compliance with the
requirements from which a modification is sought.
(3) Compliance requirements under subsection (g). -
(A) Effect of filing. - An application for a modification under
subsection (g) of this section and a petition for listing of a
pollutant as a pollutant for which modifications are authorized
under such subsection shall not stay the requirement that the
person seeking such modification or listing comply with effluent
limitations under this chapter for all pollutants not the subject
of such application or petition.
(B) Effect of disapproval. - Disapproval of an application for
a modification under subsection (g) of this section shall not
stay the requirement that the person seeking such modification
comply with all applicable effluent limitations under this
chapter.
(4) Deadline for subsection (g) decision. - An application for a
modification with respect to a pollutant filed under subsection (g)
of this section must be approved or disapproved not later than 365
days after the date of such filing; except that in any case in
which a petition for listing such pollutant as a pollutant for
which modifications are authorized under such subsection is
approved, such application must be approved or disapproved not
later than 365 days after the date of approval of such petition.
(5) Extension of application deadline. -
(A) In general. - In the 180-day period beginning on October
31, 1994, the city of San Diego, California, may apply for a
modification pursuant to subsection (h) of this section of the
requirements of subsection (b)(1)(B) of this section with respect
to biological oxygen demand and total suspended solids in the
effluent discharged into marine waters.
(B) Application. - An application under this paragraph shall
include a commitment by the applicant to implement a waste water
reclamation program that, at a minimum, will -
(i) achieve a system capacity of 45,000,000 gallons of
reclaimed waste water per day by January 1, 2010; and
(ii) result in a reduction in the quantity of suspended
solids discharged by the applicant into the marine environment
during the period of the modification.
(C) Additional conditions. - The Administrator may not grant a
modification pursuant to an application submitted under this
paragraph unless the Administrator determines that such
modification will result in removal of not less than 58 percent
of the biological oxygen demand (on an annual average) and not
less than 80 percent of total suspended solids (on a monthly
average) in the discharge to which the application applies.
(D) Preliminary decision deadline. - The Administrator shall
announce a preliminary decision on an application submitted under
this paragraph not later than 1 year after the date the
application is submitted.
(k) Innovative technology
In the case of any facility subject to a permit under section
1342 of this title which proposes to comply with the requirements
of subsection (b)(2)(A) or (b)(2)(E) of this section by replacing
existing production capacity with an innovative production process
which will result in an effluent reduction significantly greater
than that required by the limitation otherwise applicable to such
facility and moves toward the national goal of eliminating the
discharge of all pollutants, or with the installation of an
innovative control technique that has a substantial likelihood for
enabling the facility to comply with the applicable effluent
limitation by achieving a significantly greater effluent reduction
than that required by the applicable effluent limitation and moves
toward the national goal of eliminating the discharge of all
pollutants, or by achieving the required reduction with an
innovative system that has the potential for significantly lower
costs than the systems which have been determined by the
Administrator to be economically achievable, the Administrator (or
the State with an approved program under section 1342 of this
title, in consultation with the Administrator) may establish a date
for compliance under subsection (b)(2)(A) or (b)(2)(E) of this
section no later than two years after the date for compliance with
such effluent limitation which would otherwise be applicable under
such subsection, if it is also determined that such innovative
system has the potential for industrywide application.
(l) Toxic pollutants
Other than as provided in subsection (n) of this section, the
Administrator may not modify any requirement of this section as it
applies to any specific pollutant which is on the toxic pollutant
list under section 1317(a)(1) of this title.
(m) Modification of effluent limitation requirements for point
sources
(1) The Administrator, with the concurrence of the State, may
issue a permit under section 1342 of this title which modifies the
requirements of subsections (b)(1)(A) and (b)(2)(E) of this
section, and of section 1343 of this title, with respect to
effluent limitations to the extent such limitations relate to
biochemical oxygen demand and pH from discharges by an industrial
discharger in such State into deep waters of the territorial seas,
if the applicant demonstrates and the Administrator finds that -
(A) the facility for which modification is sought is covered at
the time of the enactment of this subsection by National
Pollutant Discharge Elimination System permit number CA0005894 or
CA0005282;
(B) the energy and environmental costs of meeting such
requirements of subsections (b)(1)(A) and (b)(2)(E) of this
section and section 1343 of this title exceed by an unreasonable
amount the benefits to be obtained, including the objectives of
this chapter;
(C) the applicant has established a system for monitoring the
impact of such discharges on a representative sample of aquatic
biota;
(D) such modified requirements will not result in any
additional requirements on any other point or nonpoint source;
(E) 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;
(F) the discharge is into waters where there is strong tidal
movement and other hydrological and geological characteristics
which are necessary to allow compliance with this subsection and
section 1251(a)(2) of this title;
(G) the applicant accepts as a condition to the permit a
contractural (!2) obligation to use funds in the amount required
(but not less than $250,000 per year for ten years) for research
and development of water pollution control technology, including
but not limited to closed cycle technology;
(H) the facts and circumstances present a unique situation
which, if relief is granted, will not establish a precedent or
the relaxation of the requirements of this chapter applicable to
similarly situated discharges; and
(I) no owner or operator of a facility comparable to that of
the applicant situated in the United States has demonstrated that
it would be put at a competitive disadvantage to the applicant
(or the parent company or any subsidiary thereof) as a result of
the issuance of a permit under this subsection.
(2) The effluent limitations established under a permit issued
under paragraph (1) shall be sufficient to implement the applicable
State water quality standards, to assure the protection of public
water supplies and protection and propagation of a balanced,
indigenous population of shellfish, fish, fauna, wildlife, and
other aquatic organisms, and to allow recreational activities in
and on the water. In setting such limitations, the Administrator
shall take into account any seasonal variations and the need for an
adequate margin of safety, considering the lack of essential
knowledge concerning the relationship between effluent limitations
and water quality and the lack of essential knowledge of the
effects of discharges on beneficial uses of the receiving waters.
(3) A permit under this subsection may be issued for a period not
to exceed five years, and such a permit may be renewed for one
additional period not to exceed five years upon a demonstration by
the applicant and a finding by the Administrator at the time of
application for any such renewal that the provisions of this
subsection are met.
(4) The Administrator may terminate a permit issued under this
subsection if the Administrator determines that there has been a
decline in ambient water quality of the receiving waters during the
period of the permit even if a direct cause and effect relationship
cannot be shown: Provided, That if the effluent from a source with
a permit issued under this subsection is contributing to a decline
in ambient water quality of the receiving waters, the Administrator
shall terminate such permit.
(n) Fundamentally different factors
(1) General rule
The Administrator, with the concurrence of the State, may
establish an alternative requirement under subsection (b)(2) of
this section or section 1317(b) of this title for a facility that
modifies the requirements of national effluent limitation
guidelines or categorical pretreatment standards that would
otherwise be applicable to such facility, if the owner or
operator of such facility demonstrates to the satisfaction of the
Administrator that -
(A) the facility is fundamentally different with respect to
the factors (other than cost) specified in section 1314(b) or
1314(g) of this title and considered by the Administrator in
establishing such national effluent limitation guidelines or
categorical pretreatment standards;
(B) the application -
(i) is based solely on information and supporting data
submitted to the Administrator during the rulemaking for
establishment of the applicable national effluent limitation
guidelines or categorical pretreatment standard specifically
raising the factors that are fundamentally different for such
facility; or
(ii) is based on information and supporting data referred
to in clause (i) and information and supporting data the
applicant did not have a reasonable opportunity to submit
during such rulemaking;
(C) the alternative requirement is no less stringent than
justified by the fundamental difference; and
(D) the alternative requirement will not result in a non-
water quality environmental impact which is markedly more
adverse than the impact considered by the Administrator in
establishing such national effluent limitation guideline or
categorical pretreatment standard.
(2) Time limit for applications
An application for an alternative requirement which modifies
the requirements of an effluent limitation or pretreatment
standard under this subsection must be submitted to the
Administrator within 180 days after the date on which such
limitation or standard is established or revised, as the case may
be.
(3) Time limit for decision
The Administrator shall approve or deny by final agency action
an application submitted under this subsection within 180 days
after the date such application is filed with the Administrator.
(4) Submission of information
The Administrator may allow an applicant under this subsection
to submit information and supporting data until the earlier of
the date the application is approved or denied or the last day
that the Administrator has to approve or deny such application.
(5) Treatment of pending applications
For the purposes of this subsection, an application for an
alternative requirement based on fundamentally different factors
which is pending on February 4, 1987, shall be treated as having
been submitted to the Administrator on the 180th day following
February 4, 1987. The applicant may amend the application to take
into account the provisions of this subsection.
(6) Effect of submission of application
An application for an alternative requirement under this
subsection shall not stay the applicant's obligation to comply
with the effluent limitation guideline or categorical
pretreatment standard which is the subject of the application.
(7) Effect of denial
If an application for an alternative requirement which modifies
the requirements of an effluent limitation or pretreatment
standard under this subsection is denied by the Administrator,
the applicant must comply with such limitation or standard as
established or revised, as the case may be.
(8) Reports
By January 1, 1997, and January 1 of every odd-numbered year
thereafter, the Administrator shall submit to the Committee on
Environment and Public Works of the Senate and the Committee on
Transportation and Infrastructure of the House of Representatives
a report on the status of applications for alternative
requirements which modify the requirements of effluent
limitations under section 1311 or 1314 of this title or any
national categorical pretreatment standard under section 1317(b)
of this title filed before, on, or after February 4, 1987.
(o) Application fees
The Administrator shall prescribe and collect from each applicant
fees reflecting the reasonable administrative costs incurred in
reviewing and processing applications for modifications submitted
to the Administrator pursuant to subsections (c), (g), (i), (k),
(m), and (n) of this section, section 1314(d)(4) of this title, and
section 1326(a) of this title. All amounts collected by the
Administrator under this subsection shall be deposited into a
special fund of the Treasury entitled "Water Permits and Related
Services" which shall thereafter be available for appropriation to
carry out activities of the Environmental Protection Agency for
which such fees were collected.
(p) Modified permit for coal remining operations
(1) In general
Subject to paragraphs (2) through (4) of this subsection, the
Administrator, or the State in any case which the State has an
approved permit program under section 1342(b) of this title, may
issue a permit under section 1342 of this title which modifies
the requirements of subsection (b)(2)(A) of this section with
respect to the pH level of any pre-existing discharge, and with
respect to pre-existing discharges of iron and manganese from the
remined area of any coal remining operation or with respect to
the pH level or level of iron or manganese in any pre-existing
discharge affected by the remining operation. Such modified
requirements shall apply the best available technology
economically achievable on a case-by-case basis, using best
professional judgment, to set specific numerical effluent
limitations in each permit.
(2) Limitations
The Administrator or the State may only issue a permit pursuant
to paragraph (1) if the applicant demonstrates to the
satisfaction of the Administrator or the State, as the case may
be, that the coal remining operation will result in the potential
for improved water quality from the remining operation but in no
event shall such a permit allow the pH level of any discharge,
and in no event shall such a permit allow the discharges of iron
and manganese, to exceed the levels being discharged from the
remined area before the coal remining operation begins. No
discharge from, or affected by, the remining operation shall
exceed State water quality standards established under section
1313 of this title.
(3) Definitions
For purposes of this subsection -
(A) Coal remining operation
The term "coal remining operation" means a coal mining
operation which begins after February 4, 1987 at a site on
which coal mining was conducted before August 3, 1977.
(B) Remined area
The term "remined area" means only that area of any coal
remining operation on which coal mining was conducted before
August 3, 1977.
(C) Pre-existing discharge
The term "pre-existing discharge" means any discharge at the
time of permit application under this subsection.
(4) Applicability of strip mining laws
Nothing in this subsection shall affect the application of the
Surface Mining Control and Reclamation Act of 1977 [30 U.S.C.
1201 et seq.] to any coal remining operation, including the
application of such Act to suspended solids.
SOURCE
(June 30, 1948, ch. 758, title III, Sec. 301, as added Pub. L. 92-
500, Sec. 2, Oct. 18, 1972, 86 Stat. 844; amended Pub. L. 95-217,
Secs. 42-47, 53(c), Dec. 27, 1977, 91 Stat. 1582-1586, 1590; Pub.
L. 97-117, Secs. 21, 22(a)-(d), Dec. 29, 1981, 95 Stat. 1631, 1632;
Pub. L. 97-440, Jan. 8, 1983, 96 Stat. 2289; Pub. L. 100-4, title
III, Secs. 301(a)-(e), 302(a)-(d), 303(a), (b)(1), (c)-(f), 304(a),
305, 306(a), (b), 307, Feb. 4, 1987, 101 Stat. 29-37; Pub. L. 100-
688, title III, Sec. 3202(b), Nov. 18, 1988, 102 Stat. 4154; Pub.
L. 103-431, Sec. 2, Oct. 31, 1994, 108 Stat. 4396; Pub. L. 104-66,
title II, Sec. 2021(b), Dec. 21, 1995, 109 Stat. 727.)
REFERENCES IN TEXT
The Surface Mining Control and Reclamation Act of 1977, referred
to in subsec. (p)(4), is Pub. L. 95-87, Aug. 3, 1977, 91 Stat. 445,
as amended, which is classified generally to chapter 25 (Sec. 1201
et seq.) of Title 30, Mineral Lands and Mining. For complete
classification of this Act to the Code, see Short Title note set
out under section 1201 of Title 30 and Tables.
AMENDMENTS
1995 - Subsec. (n)(8). Pub. L. 104-66 substituted "By January 1,
1997, and January 1 of every odd-numbered year thereafter, the
Administrator shall submit to the Committee on Environment and
Public Works of the Senate and the Committee on Transportation and
Infrastructure" for "Every 6 months after February 4, 1987, the
Administrator shall submit to the Committee on Environment and
Public Works of the Senate and the Committee on Public Works and
Transportation".
1994 - Subsec. (j)(1)(A). Pub. L. 103-431, Sec. 2(1), inserted
before semicolon at end ", and except as provided in paragraph
(5)".
Subsec. (j)(5). Pub. L. 103-431, Sec. 2(2), added par. (5).
1988 - Subsec. (f). Pub. L. 100-688 substituted ", any high-level
radioactive waste, or any medical waste," for "or high-level
radioactive waste".
1987 - Subsec. (b)(2)(C). Pub. L. 100-4, Sec. 301(a), struck out
"not later than July 1, 1984," before "with respect" and inserted
"as expeditiously as practicable but in no case later than three
years after the date such limitations are promulgated under section
1314(b) of this title, and in no case later than March 31, 1989"
after "of this paragraph".
Subsec. (b)(2)(D). Pub. L. 100-4, Sec. 301(b), substituted "as
expeditiously as practicable, but in no case later than three years
after the date such limitations are promulgated under section
1314(b) of this title, and in no case later than March 31, 1989"
for "not later than three years after the date such limitations are
established".
Subsec. (b)(2)(E). Pub. L. 100-4, Sec. 301(c), substituted "as
expeditiously as practicable but in no case later than three years
after the date such limitations are promulgated under section
1314(b) of this title, and in no case later than March 31, 1989,
compliance with" for "not later than July 1, 1984,".
Subsec. (b)(2)(F). Pub. L. 100-4, Sec. 301(d), substituted "as
expeditiously as practicable but in no case" for "not" and "and in
no case later than March 31, 1989" for "or not later than July 1,
1984, whichever is later, but in no case later than July 1, 1987".
Subsec. (b)(3). Pub. L. 100-4, Sec. 301(e), added par. (3).
Subsec. (g)(1). Pub. L. 100-4, Sec. 302(a), substituted par. (1)
for introductory provisions of former par. (1) which read as
follows: "The Administrator, with the concurrence of the State,
shall modify the requirements of subsection (b)(2)(A) of this
section with respect to the discharge of any pollutant (other than
pollutants identified pursuant to section 1314(a)(4) of this title,
toxic pollutants subject to section 1317(a) of this title, and the
thermal component of discharges) from any point source upon a
showing by the owner or operator of such point source satisfactory
to the Administrator that - ". Subpars (A) to (C) of former par.
(1) were redesignated as subpars. (A) to (C) of par. (2).
Subsec. (g)(2). Pub. L. 100-4, Sec. 302(a), (d)(2), inserted
introductory provisions of par. (2), and by so doing, redesignated
subpars. (A) to (C) of former par. (1) as subpars. (A) to (C) of
par. (2), realigned such subpars. with subpar. (A) of par. (4), and
redesignated former par. (2) as (3).
Subsec. (g)(3). Pub. L. 100-4, Sec. 302(a), (d)(1), redesignated
former par. (2) as (3), inserted heading, and aligned par. (3) with
par. (4).
Subsec. (g)(4), (5). Pub. L. 100-4, Sec. 302(b), added pars. (4)
and (5).
Subsec. (h). Pub. L. 100-4, Sec. 303(d)(2), (e), in closing
provisions, inserted provision defining "primary or equivalent
treatment" for purposes of par. (9) and provisions placing
limitations on issuance of permits for discharge of pollutant into
marine waters and saline estuarine waters and prohibiting issuance
of permit for discharge of pollutant into New York Bight Apex.
Subsec. (h)(2). Pub. L. 100-4, Sec. 303(a), substituted "the
discharge of pollutants in accordance with such modified
requirements will not interfere, alone or in combination with
pollutants from other sources," for "such modified requirements
will not interfere".
Subsec. (h)(3). Pub. L. 100-4, Sec. 303(b)(1), inserted ", 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" before semicolon at end.
Subsec. (h)(6) to (9). Pub. L. 100-4, Sec. 303(c), (d)(1), added
par. (6), redesignated former pars. (6) and (7) as (7) and (8),
respectively, substituted semicolon for period at end of par. (8),
and added par. (9).
Subsec. (i)(1). Pub. L. 100-4, Sec. 304(a), substituted "February
4, 1987" for "December 27, 1977".
Subsec. (j)(1)(A). Pub. L. 100-4, Sec. 303(f), inserted before
semicolon at end ", except that a publicly 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) of this section, may
apply for a modification of subsection (h) of this section in its
own right not later than 30 days after February 4, 1987".
Subsec. (j)(2). Pub. L. 100-4, Sec. 302(c)(1), substituted
"Subject to paragraph (3) of this section, any" for "Any".
Subsec. (j)(3), (4). Pub. L. 100-4, Sec. 302(c)(2), added pars.
(3) and (4).
Subsec. (k). Pub. L. 100-4, Sec. 305, substituted "two years
after the date for compliance with such effluent limitation which
would otherwise be applicable under such subsection" for "July 1,
1987" and inserted "or (b)(2)(E)" after "(b)(2)(A)" in two places.
Subsec. (l). Pub. L. 100-4, Sec. 306(b), substituted "Other than
as provided in subsection (n) of this section, the" for "The".
Subsecs. (n), (o). Pub. L. 100-4, Sec. 306(a), added subsecs. (n)
and (o).
Subsec. (p). Pub. L. 100-4, Sec. 307, added subsec. (p).
1983 - Subsec. (m). Pub. L. 97-440 added subsec. (m).
1981 - Subsec. (b)(2)(B). Pub. L. 97-117, Sec. 21(b), struck out
subpar. (B) which required that, not later than July 1, 1983,
compliance by all publicly owned treatment works with the
requirements in section 1281(g)(2)(A) of this title be achieved.
Subsec. (h). Pub. L. 97-117, Sec. 22(a) to (c), struck out in
provision preceding par. (1) "in an existing discharge" after
"discharge of any pollutant", struck out par. (8), which required
the applicant to demonstrate to the satisfaction of the
Administrator that any funds available to the owner of such
treatment works under subchapter II of this chapter be used to
achieve the degree of effluent reduction required by section
1281(b) and (g)(2)(A) of this title or to carry out the
requirements of this subsection, and inserted in provision
following par. (7) a further provision that a municipality which
applies secondary treatment be eligible to receive a permit which
modifies the requirements of subsec. (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 and that no permit
issued under this subsection authorize the discharge of sewage
sludge into marine waters.
Subsec. (i)(1), (2)(B). Pub. L. 97-117, Sec. 21(a), substituted
"July 1, 1988," for "July 1, 1983," wherever appearing. Par. (2)(B)
contained a reference to "July 1, 1983;" which was changed to "July
1, 1988;" as the probable intent of Congress in that reference to
July 1, 1983, was to the outside date for compliance for a point
source other than a publicly owned treatment works and subpar. (B)
allows a time extension for such a point source up to the date
granted in an extension for a publicly owned treatment works, which
date was extended to July 1, 1988, by Pub. L. 97-117.
Subsec. (j)(1)(A). Pub. L. 97-117, Sec. 22(d), substituted "that
the 365th day which begins after December 29, 1981" for "than 270
days after December 27, 1977".
1977 - Subsec. (b)(2)(A). Pub. L. 95-217, Sec. 42(b), substituted
"for pollutants identified in subparagraphs (C), (D), and (F) of
this paragraph" for "not later than July 1, 1983".
Subsec. (b)(2)(C) to (F). Pub. L. 95-217, Sec. 42(a), added
subpars. (C) to (F).
Subsec. (g). Pub. L. 95-217, Sec. 43, added subsec. (g).
Subsec. (h). Pub. L. 95-217, Sec. 44, added subsec. (h).
Subsec. (i). Pub. L. 95-217, Sec. 45, added subsec. (i).
Subsec. (j). Pub. L. 95-217, Sec. 46, added subsec. (j).
Subsec. (k). Pub. L. 95-217, Sec. 47, added subsec. (k).
Subsec. (l). Pub. L. 95-217, Sec. 53(c), added subsec. (l).
CHANGE OF NAME
Committee on Public Works and Transportation of House of
Representatives treated as referring to Committee on Transportation
and Infrastructure of House of Representatives by section 1(a) of
Pub. L. 104-14, set out as a note preceding section 21 of Title 2,
The Congress.
MISCELLANEOUS
EFFECTIVE DATE OF 1987 AMENDMENT
Section 302(e) of Pub. L. 100-4 provided that:
"(1) General rule. - Except as provided in paragraph (2), the
amendments made by this section [amending this section] shall apply
to all requests for modifications under section 301(g) of the
Federal Water Pollution Control Act [33 U.S.C. 1311(g)] pending on
the date of the enactment of this Act [Feb. 4, 1987] and shall not
have the effect of extending the deadline established in section
301(j)(1)(B) of such Act.
"(2) Exception. - The amendments made by this section shall not
affect any application for a modification with respect to the
discharge of ammonia, chlorine, color, iron, or total phenols
(4AAP) under section 301(g) of the Federal Water Pollution Control
Act pending on the date of the enactment of this Act; except that
the Administrator must approve or disapprove such application not
later than 365 days after the date of such enactment."
Section 303(b)(2) of Pub. L. 100-4 provided that: "The amendment
made by subsection (b) [amending this section] shall only apply to
modifications and renewals of modifications which are tentatively
or finally approved after the date of the enactment of this Act
[Feb. 4, 1987]."
Section 303(g) of Pub. L. 100-4 provided that: "The amendments
made by subsections (a), (c), (d), and (e) of this section
[amending this section] shall not apply to an application for a
permit under section 301(h) of the Federal Water Pollution Control
Act [33 U.S.C. 1311(h)] which has been tentatively or finally
approved by the Administrator before the date of the enactment of
this Act [Feb. 4, 1987]; except that such amendments shall apply to
all renewals of such permits after such date of enactment."
Section 304(b) of Pub. L. 100-4 provided that: "The amendment
made by subsection (a) [amending this section] shall not apply to
those treatment works which are subject to a compliance schedule
established before the date of the enactment of this Act [Feb. 4,
1987] by a court order or a final administrative order."
EFFECTIVE DATE OF 1981 AMENDMENT
Section 22(e) of Pub. L. 97-117 provided that: "The amendments
made by this section [amending this section] shall take effect on
the date of enactment of this Act [Dec. 29, 1981], 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 [33 U.S.C. 1311(h)] which modifies the requirements of
subsection (b)(1)(B) of section 301 of such Act [33 U.S.C.
1311(b)(1)(B)] shall receive such permit during the one-year period
which begins on the date of enactment of this Act."
REGULATIONS
Section 301(f) of Pub. L. 100-4 provided that: "The Administrator
shall promulgate final regulations establishing effluent
limitations in accordance with sections 301(b)(2)(A) and 307(b)(1)
of the Federal Water Pollution Control Act [33 U.S.C.
1311(b)(2)(A), 1317(b)(1)] for all toxic pollutants referred to in
table 1 of Committee Print Numbered 95-30 of the Committee on
Public Works and Transportation of the House of Representatives
which are discharged from the categories of point sources in
accordance with the following table:
"Category Date by which the
final regulation
shall
be promulgated
--------------------------------------------------------------------
Organic chemicals and plastics and December 31, 1986.
synthetic fibers
Pesticides December 31, 1986."
--------------------------------------------------------------------
PHOSPHATE FERTILIZER EFFLUENT LIMITATION
Amendment by section 306(a), (b) of Pub. L. 100-4 not to be
construed (A) to require the Administrator to permit the discharge
of gypsum or gypsum waste into the navigable waters, (B) to affect
the procedures and standards applicable to the Administrator in
issuing permits under section 1342(a)(1)(B) of this title, and (C)
to affect the authority of any State to deny or condition
certification under section 1314 of this title with respect to the
issuance of permits under section 1342(a)(1)(B) of this title, see
section 306(c) of Pub. L. 100-4, set out as a note under section
1342 of this title.
DISCHARGES FROM POINT SOURCES IN UNITED STATES VIRGIN ISLANDS
ATTRIBUTABLE TO MANUFACTURE OF RUM; EXEMPTION FROM FEDERAL WATER
POLLUTION CONTROL REQUIREMENTS; CONDITIONS
Pub. L. 98-67, title II, Sec. 214(g), Aug. 5, 1983, 97 Stat. 393,
as amended by Pub. L. 99-514, Sec. 2, Oct. 22, 1986, 100 Stat.
2095, provided that: "Any discharge from a point source in the
United States Virgin Islands in existence on the date of the
enactment of this subsection [Aug. 5, 1983] which discharge is
attributable to the manufacture of rum (as defined in paragraphs
(3) of section 7652(c) of the Internal Revenue Code of 1986
[formerly I.R.C. 1954]) [26 U.S.C. 7652(c)(3)] shall not be subject
to the requirements of section 301 (other than toxic pollutant
discharges), section 306 or section 403 of the Federal Water
Pollution Control Act [33 U.S.C. 1311, 1316, 1343] if -
"(1) such discharge occurs at least one thousand five hundred
feet into the territorial sea from the line of ordinary low water
from that portion of the coast which is in direct contact with
the sea, and
"(2) the Governor of the United States Virgin Islands
determines that such discharge will not interfere with the
attainment or maintenance of that water quality which shall
assure protection of public water supplies, and the protection
and propagation of a balanced population of shellfish, fish, and
wildlife, and allow recreational activities, in and on the water
and will not result in the discharge of pollutants in quantities
which may reasonably be anticipated to pose an unacceptable risk
to human health or the environment because of bioaccumulation,
persistency in the environment, acute toxicity, chronic toxicity
(including carcinogenicity, mutagenicity, or teratogenicity), or
synergistic propensities."
CERTAIN MUNICIPAL COMPLIANCE DEADLINES UNAFFECTED; EXCEPTION
Section 21(a) of Pub. L. 97-117 provided in part that: "The
amendment made by this subsection [amending this section] shall not
be interpreted or applied to extend the date for compliance with
section 301(b)(1)(B) or (C) of the Federal Water Pollution Control
Act [33 U.S.C. 1311(b)(1)(B), (C)] beyond schedules for compliance
in effect as of the date of enactment of this Act [Dec. 29, 1981],
except in cases where reductions in the amount of financial
assistance under this Act [Pub. L. 97-117, see Short Title of 1981
Amendment note set out under section 1251 of this title] or changed
conditions affecting the rate of construction beyond the control of
the owner or operator will make it impossible to complete
construction by July 1, 1983."
TERRITORIAL SEA AND CONTIGUOUS ZONE OF UNITED STATES
For extension of territorial sea and contiguous zone of United
States, see Proc. No. 5928 and Proc. No. 7219, respectively, set
out as notes under section 1331 of Title 43, Public Lands.
FOOTNOTE
(!1) So in original. Probably should be "than".
(!2) So in original. Probably should be "contractual".
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