(c) An applicant who desires to have the determination pursuant to section 316(a) deferred in accordance with the provisions of g 122.10(b) shall so specify at the time the plan of study is submitted. The Regional Administrator may order such deferral where he determines it to be appropriate on the basis of the plan of study or other information. (d) An applicant who desires to attempt a demonstration showing the absence of prior appreciable harm pursuant to 8 122.9(b)(1) and to limit the contents of its demonstration on the basis that its discharge has and will have a low impact on the receiving water body segment shall not undertake such demonstration without the prior concurrence of the Regional Administrator. statements required by paragraph (a) of this section, a statement that the applicant has submitted evidence in support of its request for alternative effluent limitations which warrants further consideration and that the Regional Administrator is considering imposition of such alternative limitations. The notice shall state that all data submitted by the applicant, including a summary thereof, are available at the office of the Regional Administrator for public inspection during office hours. The notice shall also state that any person may comment in writing upon the applicant's desired alternative effluent limitations in accordance with the provisions of 8 125.32(b)(1) of this chapter and may also request a hearing pursuant to that section. (2) If an application has been filed pursuant to § 122.5(a) and the applicant has filed a written plan of study and demonstration pursuant to § 122.5(b)(2), the public notice of the proposed issuance, denial or modification of a permit shall include, in addition to the statement required by paragraph (a) of this section, a statement that the applicant has submitted such a plan. (3) The notice shall include a summary of the applicant's proposed plan of study and demonstration and shall state that the plan is available at the office of the Regional Administrator for public inspection during office hours. The notice shall also state that any person may comment in writing upon the applicant's proposed plan of study in accordance with the provisions of § 125.32(b)(1) of this chapter and may also request a public hearing to consider such plan pursuant to that section. (c) The public notice of any hearing held pursuant to 8 122.10(a) shall include the information required by $ 125.32(d) of this chapter. § 122.6 Public notice. (a) In addition to the information required by $ 125.32(c) of this chapter, the public notice of the proposed issuance, denial or modification of permit for a discharge which is subject, pursuant to sections 301 or 306 of the Act, to effluent limitations controlling its thermal component and as to which an application has been filed pursuant to § 122.5 shall include: (1) A statement that the thermal component of the discharge is subject to effluent limitations pursuant to sections 301 or 306 of the Act and a brief description (which shall include a quantitative statement) of the thermal effluent limitations proposed pursuant to section 301 or 306; and (2) A statement that such an application has been filed and that alternative (and less stringent) effluent limitations may be imposed on the thermal component of the discharge pursuant to section 316(a) and a brief description (which shall include a quantitative statement) of the alternative effluent limitations, if any, included in the application. (b)(1) If an application has been filed pursuant to $ 122.5(a) and the applicant has submitted its data and information pursuant to § 122.5(b)(1), the public notice of the proposed issuance, denial modification of permit shall include, in addition to the a § 122.7 Plan of study and demonstration. (a) Any written plan of study and demonstration submitted pursuant to § 122.5(b)(2) shall describe the alternative effluent limitations desired by the applicant and shall include an identification of the demonstration being con or a templated, in accordance with 122.9; a description of the data and information which the applicant proposes to submit; and a schedule for the completion and submittal of such demonstration. The Regional Administrator shall consult with the applicant as to the nature and contents of its plan of study and may advise the applicant of his concurrence in, recommended modification of or objection to such plan. No failure to adopt a recommended modification of a plan, and no objection to a plan, shall preclude the use of such plan nor prejudice any determination based on results of completing such plan, and neither shall the existence of any plan in any way suspend or negate the requirements of sections 301, 306 or 316(a) of the Act. received by the certifying agency. For purposes of this subsection, a "final determination" includes a determination pursuant to § 122.10(b)(2) to issue a permit prior to the deferred determi. nation, if any, under section 316(a) and any subsequent determination that alternative effluent limitations may be imposed. (2) (Reserved] (c) Any alternative effluent limitations established pursuant to section 316(a) shall constitute the applicable thermal provisions of sections 301 and 306 of the Act for purposes of section 401 of the Act. § 122.8 State certification. (a)(1) Notification pursuant to $ 122.5(a) to the appropriate certifying agency shall be deemed a withdrawal of any pending application for certification as to the compliance of the thermal component of the discharge with sections 301 and 306 of the Act. Such notification shall, as to the thermal component of the discharge, toll the running of the period of time within which the State or interstate certifying agency must act. (2) (Reserved) (b)(1) When the Regional Administrator (or the Administrator, acting pursuant to $ 125.36(n) of this chapter) has made a final determination as to the effluent limitations to be imposed on the thermal component of the discharge, he shall within 10 days thereafter notify the certifying agency in writing of that determination. If any application for certification as to the thermal component of the discharge under section 401 of the Act is then pending before the certifying agency, such notification shall be deemed a resubmission of such application, and the running of the period of time within which the certifying agency must act shall resume upon receipt of such notification; except that in no case shall the requirements of section 401 of the Act be deemed waived until the date at least 30 days after the day when such notification is § 122.9 Determination of alternative efflu ent limitations. (a)(1) The Regional Administrator may not impose an alternative effluent limitation on the thermal component of any discharge which is less stringent than the effluent limitation otherwise required by sections 301 or 306 of the Act unless the owner or operator has demonstrated that the effluent limitations otherwise required 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, and such demonstration has not been rebutted. Such demonstration may be accomplished by showing that the desired alternative effluent limitation (taking into account the interaction of such thermal component with other pollutants) will assure the protection and propagation of balanced, indigenous community of shellfish, fish and wildlife in and on the body of water into which the discharge is to be made. (2) The Regional Administrator may determine that the alternative efflu. ent limitations desired by the applicant 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 if the owner or operator satisfies the requirements of paragraphs (b)(1), (b)(2) or (b)(3) of this section. (b)(1) Absence of prior appreciable harm. (i) In the case of a point source which has commenced operation and (A) The owner or operator has demdischarge prior to the filing of the onstrated to the satisfaction of the notice required by $ 122.5(a), alterna- Regional Administrator, during the tive effluent limitations may be estab- period provided for public comment lished if the owner or operator has under $ 125.32(b) of this chapter (indemonstrated to the satisfaction of cluding any information submitted the Regional Administrator, during prior to such period) or by evidence inthe period provided for public com- troduced at any hearing held to con. ment under $ 125.32(b) of this chapter sider the permit, that the discharge (including any information submitted will assure the protection and propaprior to such period) or by evidence in- gation of representative, important troduced at any hearing held to con- species (selected in accordance with sider the permit: paragraph (b)(2)(ii) of this section) (A) That no appreciable harm has whose protection and propagation, if resulted from the thermal component assured, will assure the protection and of the discharge (taking into account propagation of a balanced, indigenous the interaction of such thermal com- community of shellfish, fish and wildponent with other pollutants and the life in and on the body of water; unless additive effect of other thermal (B) Unrebutted information received sources) to a balanced, indigenous during the period provided for public community of shellfish, fish and wild- comment under $125.34(b) of this life in and on the body of water into chapter or evidence introduced at any which the discharge has been made; or hearing held to consider the permit in(B) That despite the occurrence of dicates: (1) that the species selected by such previous harm, the desired alter the Regional Administrator are not native effluent limitations (or appro representative, in terms of biological priate modifications thereof) will nev needs, of a balanced, indigenous comertheless assure the protection and munity in the receiving water body; or propagation of a balanced, indigenous (2) that the temperature requirements community of shellfish, fish and wild employed in calculating the proposed alternative effluent limitations are not life in and on the body of water into adequate to assure the protection and which the discharge is made. propagation of those species in and on (ii) In determining whether or not the receiving water body; or (3) that appreciable harm has occurred, the the temporal or spatial (area, volume, Regional Administrator shall consider location and configuration) distribuevidence as to the period of time of tion of the mixing zone is excessively the applicant's prior operation, evi large or otherwise inconsistent with dence demonstrating compliance or the purposes of section 316(a) noncompliance during the period of (ii) (A) Whenever an applicant prooperation and discharge with water poses to include a demonstration purquality standards designed to protect suant to this paragraph as an element fish and aquatic life and any addition of its support for an application for a al evidence submitted by the owner or determination pursuant to section operator or required by the Regional 316(a), it shall so notify the Regional Administrator. Such additional evi Administrator at the time the applicadence may include evidence that such tion is filed. The applicant may submit standards are more stringent than nec with the application such data and inessary to assure protection and propa- formation as may be available to assist gation of a balanced, indigenous com- the Regional Administrator in selectmunity. ing appropriate representative, impor(2) Protection of representative, im- tant species. The Regional Administraportant species. (i) In the case of any tor shall promptly seek the advice and source, whether or not it has com- recommendation of the Director as to menced operation and discharge prior the species whose protection and propto the filing of the notice required by agation in and on the receiving water $ 122.5(a), alternative effluent limita- body will, if assured, satisfy the retions may be established if: quirements of paragraph (b)(2)(i) of this section. The Regional Administra- (3) Biological engineering and other tor shall also promptly notify the Sec- data. In the case of any source, whethretary of Commerce and the Secretary er or not it has commenced operation of the Interior, or their designees, that and discharge prior to the filing of the representative, important species will notice required by $122.5(a) and be identified and shall consider any whether or not it has attempted or is timely recommendation of such Secre- attempting to provide the demonstratary or designee. Any species included tions described in paragraphs (b) (1) in applicable State water quality and (2) of this section, alternative efstandards shall be selected, together fluent limitations may be established with such additional species as the Re- if the Regional Administrator detergional Administrator considers appro mines, on the basis of other evidence priate. The Regional Administrator and data submitted by the applicant, shall advise the applicant of the spe that the alternative effluent limitacies selected within 60 days after re tions will assure the protection and ceipt of notification under this subpar propagation of a balanced, indigenous agraph. community of shellfish, fish and wild(B) If the available information is in life in and on the body of water into sufficient to enable the Regional Ad. which the discharge is to be made. ministrator to select representative, Such evidence may consist of evidence important species, the applicant may, intended to satisfy the requirements of paragraph (b) (1) or (2) of this secat the request of the Regional Admin tion, or any other new or historical istrator, conduct such studies and furnish such evidence as may be neces biological data, physical monitoring sary to select appropriate species. In data, engineering or diffusion models, or other relevant evidence. such case, the applicant shall have the burden of proving the appropriateness & 122.10 Public hearings. of the species as well as that its discharge will assure the protection and (a) Requests for hearings. (1) If the propagation of such species. public notice of the proposed issuance, (iii) (A) In determining whether or denial or modification of a permit con tains notice of an application for alternot the protection and propagation of the representative, important species native effluent limitations and of the will be assured, the Regional Adminis applicant's submittal of data and intrator may consider evidence demon. formation pursuant to $122.5(b)(1), any person may, within 30 days followstrating that the discharge will comply ing the issuance of such notice, submit with any applicable temperature re to the Regional Administrator a requirements for growth, reproduction quest for a hearing pursuant to and survival of such species as speci. $ 125.34 of this chapter to consider fied in any applicable water quality whether the alternative effluent limicriteria and water quality information tations will assure the protection and published by the Administrator pursu. propagation of a balanced, indigenous ant to section 304(a) of the Act, and/ community of shellfish, fish and wild. or any additional information submit. life in and on the body of water into ted by the owner or operator or re which the discharge is to be made. quired by the Regional Administrator. (2) If the public notice of the pro(B) Compliance with the tempera- posed issuance, denial or modification ture levels referred to in paragraph of a permit contains notice of an appli(bX2XüXA) of this section shall be cation for alternative effluent limita. determined outside a mixing zone tions and of the applicant's submittal whose temporal and spatial (area, of a proposed plan of study and dem. volume, configuration and location) onstration pursuant to $ 122.5(b) 2), distribution will assure the protection any person may, within 30 days followand propagation of a balanced, indig. ing the issuance of such notice, submit enous community of shellfish, fish and to the Regional Administrator a rewildlife in and on the receiving water quest for a bearing pursuant to body. $ 125.34 of this chapter to consider new whether such plan provides for the this chapter, the Regional Administratimely submittal of such information tor may issue a permit which is for a and data as may be necessary to deter- term of up to five years and which remine whether the alternative effluent quires that the point source achieve limitations will assure the protection the effluent limitations initially proand propagation of a balanced, indig. posed for the control of the thermal enous community of shellfish, fish and component of the discharge no later wildlife in and on the body of water than the date specified in applicable into which the discharge is to be effluent limitations guidelines and made. source performance standards (3) If a request for a hearing pursu issued pursuant to sections 301(b) and ant to paragraph (a)(1) of this section 304(b) or 306 of the Act but which af. is granted, the Regional Administrator fords the permittee an opportunity to shall consolidate this issue with other request a hearing under section 316(a) issues, if any, relating to the proposed ' after having conducted biological and permit and its conditions raised by the engineering studies in order to develop owner or operator, or by any other information sufficient for the Regionperson, and shall consider and resolve al Administrator to make a knowledgeall such issues in a single hearing, able determination as to whether alunless he determines to defer the ternative effluent limitations may be hearings on issues related to the efflu established pursuant to section 316(a). ent limitations or alternative effluent (3) Any hearing scheduled under limitations on the thermal component paragraph (b)(2) of this section shall pursuant to paragraph (b) of this sec be publicized in accordance with the tion or deems such a procedure to be requirements of $ 125.32(d) of this inappropriate for other reasons. chapter and shall be held sufficiently (4) The Regional Administrator may in advance of the final compliance date specified in the permit to allow hold a hearing pursuant to § 125.34 of the permittee to take necessary measthis chapter in any case or class of ures to comply by that date in the cases in which he deems it appropri event its request for modification of ate. thermal limits is denied after the (b) Deferral of determination. (1) In hearing is concluded. any case in which the Regional Ad (4) Whenever the Regional Adminisministrator determines, after having trator defers the determination under reviewed the evidence which the section 316(a), he may also defer any owner or operator proposes to present determination under section 316(b), in at the hearing or the plan of study accordance with the procedures of submitted pursuant to § 122.5(b)(2), paragraph (b) of § 122.10. that sufficient information is likely (c) ppeal or review of decision of not to be available upon which to base Regional Administrator. (1) Any interknowledgeable determination of ested person shall have the right to rewhether or not the proposed effluent quest an adjudicatory hearing pursulimitations on the thermal component ant to § 125.36(b) of this chapter. The of the discharge are more stringent Administrator may, on his own than necessary, he may order that the motion, review any decision of a Redetermination requested pursuant to gional Administrator. Such review section 316(a) and § 122.6 be severed shall be conducted in accordance with from the determination pursuant to the provisions of g 125.36(n) of this section 402 of the Act and § 125.34 and chapter. be deferred until the owner or operator has completed such engineering and biological studies as the Regional Subpart C-State Determination of Administrator may consider necessary. Alternative Effluent Limitations (2) If the studies required under paragraph (b)(1) of this section have 8 122.11 Application for determination under section 316(a). not been completed at the conclusion of the hearing held pursuant to sec- (a) (1) The owner or operator of any tion 402 of the Act and Part 125 of point source who desires the Director а |