§ 124.100 Purpose and scope.

Under sections 301(i) (1) and (2) of the Clean Water Act, extensions of the 1977 statutory deadline for compliance with certain treatment requirements may be granted by EPA or, if appropriate the State, through permit issuance or modification. This subpart establishes criteria for granting these extensions and the method for incorporating these extensions into State issued NPDES permits.

§ 124.101 Definitions.

For purposes of this subpart:

(a) "Construction" means actual construction or activities so closely related to actual construction that completion of the facility no later than July 1, 1983, is a reasonable expectation. This shall include any placement, assembly, or installation of facilities or equipment (including contractual obligations to purchase such facilities or equipment) at the premises where such equipment will be used, including preparation work at such premises. This shall not include actions which have been abandoned or are so insignificant that they do not lead to the completion of the facility.

(b) "ECSL" means any extension of the July 1, 1977 treatment deadline issued by EPA or an NPDES State, in conjunction with an NPDES permit which requires compliance by July 1, 1977. This term shall include any procedural mechanisms used by the State which are consistent with EPA's Enforcement Compliance Schedule Letter policy.

§ 124.102 Requests for permit modification and issuance under section 301(i)(1) of the act.

(a) Any owner or operator of a publicly owned treatment works (POTW) that requires construction to achieve limitations under sections 301(b)(1)(B) or 301(b)(1)(C) of the Act may request modification or issuance of a permit extending the date for compliance with these limitations:

(1) This request must be made to the Director on or before June 26, 1978;

(2) A request will be deemed made before June 26, 1978 if:

(b) Federal financial assistance was not available, or was not available in time for construction required to achieve these limitations, and the POTW did not in any significant way contribute to this unavailability or delay.

(i) The owner or operator of a POTW holds a ECSL or has an outstanding request for a ECSL, and has informed the Director by letter before June 26, 1978, that it wishes to request a section 301(i)(1) extension; or

(ii) The owner or operator of a POTW has informed the Director by letter before June 26, 1978, that it wishes to request a section 301(i)(1) extension and briefly states which cri. teria in § 124.103 it believes it meets.

(3) For a request under this paragraph to be considered, a POTW shall notify all point sources committed to discharge into the POTW by July 1, 1983, of the date of the request and that they have 180 days from that date in which to file requests for section 301(i)(2) extensions. Such notifications shall be made within 30 days from the date of the POTW's request.

(b) The burden is on the POTW to demonstrate that an extension should be granted

(1) If the POTW does not submit arguments or factual grounds supporting the request within thirty days of such request, a section 301(i)(1) determination shall be based on existing information in EPA and/or State files.

(2) The POTW may submit arguments or factual grounds supporting the request which are relevant to the criteria listed in § 124.103. Any such arguments or factual grounds, including all supporting documentation, must be submitted within thirty days (non-extendable) from the date of the request.

§ 124.104 Permit terms and conditions

under section 301(i)(1) of the act. (a) All permits modified or issued by the Director under section 301(i)(1) of the Act shall contain at a minimum the following permit terms and condi. tions:

(1) The shortest reasonable schedule of compliance for achievement of limitations under sections 301(b)(1) (B) and (C) but in no event later than July 1, 1983. This schedule shall be based upon the earliest date that Federal financial assistance will be available and construction can be completed and any additional information submitted by the POTW or otherwise available to the State.

(i) When the availability of Federal financial assistance is certain, this schedule shall contain dates certain for the completion of actions leading toward the attainment of statutory treatment limitations.

(ii) When the availability of Federal funding is uncertain, this schedule may require the completion of actions leading toward the attainment of statutory treatment limitations within stated periods of time after the occurrence of events related to the unavail. ability of Federal financial assistance, e.g., notification that Federal financial assistance is available and that a grant application should be filed, the offering of a grant of Federal financial assistance, etc. The following are requirements for the use of such a schedule:

(A) Certification by the State that funding will be available in time to ensure compliance by July 1, 1983;

(B) Reporting once a year by the POTW as to its progress in obtaining Federal funding and modification of the permit to incorporate a date certain schedule once Federal funding is available; and

(C) A condition in the permit requiring termination of any extension

$ 124.103 Criteria for permit modification

and issuance under section 301(i)(1) of

the act. No request for a permit modification or issuance under section 301(i)(1) of the Act shall be granted unless the Director finds that the POTW requires construction to achieve limitations under sections 301(b)(1)(B) or 301(b)(1)(C) of the Act and did not complete construction for either of the following reasons:

(a) Actual construction was underway before July 1, 1977, but construction could not physically be completed by July 1, 1977, despite all expeditious efforts of the POTW; or

granted if it subsequently is determined that Federal funding will not be available in time to ensure compliance by July 1, 1983.

(2) A statement ensuring compliance with requirements under sections 201 (b) through (g) of the Act consistent with the terms of the POTW's construction grant.

(3) Abatement practices and interim effluent limitations reflecting optimum operation and maintenance of the existing facilities. These shall include:

(1) Adequate operator staffing and training;

(ii) Adequate laboratory and process controls; and

(iii) Effluent limitations derived from reports of operation and maintenance inspections conducted by EPA or the State, reports of in-depth plant evaluations conducted to determine the treatment capabilities of the particular plant being permitted or other available guidance. COMMENT: Only in exceptional circumstances should in-depth plant evaluations be conducted, e.g., when existing information does not represent the true capabilities of the plant.

(4) Interim effluent limitations reflecting other non-capital intensive measures for increased pollution control. This shall include any possible minor facility modifications such as piping changes, additional metering and instrumentation or the use of skimming and vacuuming equipment. When an existing POTW is currently violating limitations imposed under section 301(b)(1)(C) of the Act, interim effluent limitations shall be established to minimize adverse water quality impact; these limitations shall not be made less stringent or allow more pollutants to be discharged than are currently being discharged during the term of an extension granted under section 301(i)(1) of the Act.

(b) If a POTW has industrial users, any permit issued or modified by the Director under section 301(i)(1) of the Act shall contain terms and conditions necessary to ensure compliance with pretreatment regulations promulgated under section 307(b) of the Act.

g 124.105 Requests for permit modification

or issuance under section 301(i)(2) of

the act. (a) Any owner or operator of a point source other than a POTW that will not achieve the requirements of sections 301(b)(1)(A) and 301(b)(1)(C) of the Act because it was committed to discharge into a POTW that is presently unable to accept the discharge without construction, may request modification or issuance of a permit extending the date of compliance with these limitations. This request must be made to the Director on or before June 26, 1978 or not later than 180 days after the filing of a request under section 301(i)(1) of the Act by the POTW into which the point source is committed to discharge.

(b) The burden is on the discharger to demonstrate that an extension should be granted

(1) If the discharger does not submit arguments or factual grounds supporting the request within thirty days of such request, a section 301(i)(2) determination shall be based upon information in EPA and/or State files.

(2) The discharger may submit arguments or factual grounds supporting the request which are relevant to the criteria listed in section 124.106. Any such arguments or factual grounds, including all supporting documentation, must be submitted within thirty days (non-extendable) from the date of the request.

§ 124.106 Criteria for permit modification

and issuance under section 301(i)(2) of

the act. No request for a permit modification or issuance under section 301(i)(2) of the Act shall be granted unless the Director finds that the discharger has failed to achieve the requirements of

a

facilities competently and responsibly and the extent to which the discharger has completed the necessary prerequisites to having its waste treated by the POTW.

(c) The POTW will be in operation and available to the discharger by July 1, 1983;

(d) The POTW will be able to meet secondary treatment and water quality standard effluent limitations by July 1, 1983 after receiving the waste from the discharger;

(e) The discharger and the POTW have entered into an enforceable contract providing that:

(1) The discharger agrees to discharge its waste to the POTW;

(2) The POTW agrees to accept and treat that waste by a date certain; and

(3) The discharger agrees to pay all user charges and industrial cost recov. ery charges required under section 204 of the Act; and

(f) In the case of a discharge into an existing POTW, such POTW has been granted an extension under section 301(i)(1) of the Act.

sections 301(b)(1)(A) and 301(b)(1)(C) of the Act because it was scheduled to discharge into a POTW that is presently unable to accept the discharge without construction, and:

(a) The discharger has indicated an intent to discharge into the POTW before July 1, 1977 in one of the following ways:

(1) The discharger was issued permit before July 1, 1977 based upon a discharge into a POTW;

(3) The discharger had a contract before July 1, 1977 (enforceable against the discharger) to discharge into a POTW. This does not include a document labelled as a “contract” that imposes only nominal or insignificant obligations on the discharger;

(3) A construction grant application made by the POTW before July 1, 1977 clearly demonstrated that the discharger was to discharge into the POTW; or

(4) Engineering plans, architectural plans or working drawings prepared for the POTW before July 1, 1977 clearly demonstrated the discharger was to discharge into the POTW. Plans and drawings, such as those accompanying a bona fide application for a Federal construction grant, are sufficient only to the extent that they were truly representative of the intent of the discharger and the POTW;

(b) The Director finds that the discharger has acted in good faith in both its efforts to effectuate discharge into the POTW and its efforts to minimize or abate pollution prior to discharge into the POTW. This shall include the following findings:

(1) Failure to meet the July 1, 1977 deadline was for reasons beyond the discharger's control;

(2) A history of a high degree of commitment to meet the requirements of the Act as manifested by cooperation with the State or EPA in attempting to resolve disputed issues;

(3) No history of unjustified delay;

(4) No past serious or intentional violations of the Act; and

(5) All reasonable measures being taken to expedite compliance. COMMENT: The Director may also consider whether the discharger has operated its

§ 124.107 Permit terms and conditions

under section 301(i)(2) of the act. All permits modified or issued by the Director under section 301(i)(2) of the Act shall contain at a minimum the following permit terms and conditions:

(a) The shortest reasonable schedule of compliance leading to discharge into the POTW, not to extend beyond the earliest date practicable for compliance, or beyond the final compliance date of any extension granted to the appropriate POTW under section 301(i)(1) of the Act, but in no event later than July 1, 1983. This schedule shall be based upon the earliest date by which the appropriate POTW can receive the waste from the discharger and the discharger can complete the necessary prerequisites to having its waste treated by that POTW;

(b) Achievement of effluent limitations and standards under sections 301(b)(1)(A) and 301(b)(1)(C) of the Act by the same final date in the schedule established in subparagraph (a) in the event that the permittee does not discharge its wastes to the POTW by the date established under subparagraph (a):

are

$ 124.108 Effect of noncompliance with

this subpart. Failure of the State to comply with any of the requirements of this subpart shall be grounds for EPA objection to a proposed State permit under section 402(d)(2) of the Act.

APPENDIX A

SAMPLE PUBLIC NOTICE

DEPARTMENT OF ENVIRONMENTAL PROTECTION

DIVISION OF WATER QUALITY AND RESOURCES,

1616 COURT HOUSE DRIVE, CAPITAL CITY, STATE (ZIP) 307-445-8922

[Public Notice No. OPP-72-301; Application No. CIY.-400-60-301)

AUGUST 12, 1973.

(c) Abatement practices and interim effluent limitations reflecting optimum operation and maintenance of the discharger's existing facilities. These shall include:

(1) Effective performance of facility design removals;

(2) Adequate operator staffing and training; and

(3) Adequate laboratory and process control;

(d) Interim effluent limitations reflecting other non-capital intensive measures for increased pollution control;

(e) Requirements to meet applicable toxic effluent standards and prohibitions after they are promulgated under section 307(a) of the Act;

(f) Requirements to ensure compliance with:

(1) Pretreatment requirements imposed by the POTW pursuant to any extension granted to the POTW under section 301(i)(1) of the Act;

(2) Any State or local pretreatment requirements; and

(3) Pretreatment standards as promulgated under section 307(b) of the Act; COMMENT: The legislative history cites the following example: “[I]f an industry is planning on participating in a municipal system which will not be available until January 1983, that industry would still have to install and operate pretreatment facilities within the time specified for compliance at the time the applicable pretreatment standard was promulgated and in no event later than three years from the date of said promulgation. Thus, if the pretreatment regulations are promulgated March 1, 1979 and require compliance within two years, that industry would be required to comply by March 1, 1981," H.R. Rep. No. 95-830, 95th Cong., 1st Sess., 12712 (daily ed. Dec. 6, 1977).

(g) Any water conservation requirements necessary to carry out the provisions of the Act or imposed by the POTW pursuant to the contract executed between the discharger and the POTW.

NOTICE-APPLICATION FOR NPDES PERMIT TO

DISCHARGE TO STATE WATERS Acme Paper Products, Inc., 11345 North Fremont Street, Cape Rockaway, State (ZIP), has applied for a Department of Environmental Protection permit to discharge pollutants into State waters.

Applicant is a manufacturer of bleached grades of paper from kraft pulp. Two existing discharges are described in the application: One of the utility waste water from applicant's steam generating plant and the other of process wastes from the manufacture of pulp and paper. Both discharges are presently to Martin Creek one-half-mile upstream from Whitehall Bay.

On the basis of preliminary staff review and application of lawful standards and regulations, the Division of Water Quality and Resources proposes to issue a permit to discharge subject to certain effluent limitations and special conditions. These proposed determinations are tentative. Persons wishing to comment upon or object to the proposed determinations are invited to submit same in writing to the above address no later than September 12, 1973. All comments or objections received prior to September 12, 1973, will be considered in the formulation of final determinations regarding the application. If no objections are received, the Director will issue his final determinations within 60 days of the date of this notice. A public hearing may be held if response to this notice indicates significant public interest.

The application, proposed permit including proposed effluent limitations and special conditions, fact sheets, comments received, and other information is on file and may be inspected and copied in Room 814, 1616 Court House Drive, Capital City, State (ZIP), at any time between 8:15 a.m. and

COMMENT: The existence of such a contract is a prerequisite to granting an extension under section 301(i)(2)(B) of the act and § 124.106(e) of this subpart.