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 g 122.15(b)(1) and to limit the contents of the demonstration on the basis that its discharge has and will have a low impact on the receiving water body segment shall not undertake such demonstrations without the prior written concurrence of the Director.

to impose alternative effluent limitations pursuant to section 316(a) shall so notify the Director and the appropriate State or interstate certifying agency (if certifications are not provided by the Director) in writing upon the filing of an application for an NPDES permit. Such notice may in. clude a description of the alternative effluent limitations desired by the applicant.

(2) Notice pursuant to paragraph (a)(1) of this section shall, in the case of any point source for which a discharge permit application has been filed prior to March 4, 1974, be given not later than 60 days after promulgation of these regulations or 60 days after promulgation of effluent limitations guidelines and standards under sections 301 and 304 or standards of performance under section 306 applicable to that point source, whichever is later, except that such notice may be given at a later date, or required at an earlier date, if the Director so determines.

(b) The owner or operator shall submit to the Director:

(1) Within 90 days after the notification required by paragraph (a)(1) of this section, or within 90 days after being notified of the Director's selection of representative, important species pursuant to § 122.15(b)(2)(ii)(A), or in either case within such longer or shorter time as the Director may determine, such data and other information as it wishes to be considered in support of its application for alternative effluent limitations; or

(2) Within 60 days after such notification, or within 60 days after being advised of the Director's identification of representative, important species pursuant to 8 122.15(b)(2)(ii)(A), whichever is later, and after consultation with the Director, a written plan of study and demonstration pursuant to 8 122.13.

(c) An applicant who desires to have the determination pursuant to section 316(a) deferred in accordance with the provisions of 122.16(b) shall so specify at the time the plan of study is submitted. The Director may order such deferral where he determines it to be

a

§ 122.12 Public notice.

(a) In addition to the information required by $ 124.32(c) of this chapter, the public notice of the proposed issuance, denial or modification of a permit for a discharge which is subject, pursuant to section 301 or 306 of the Act, to effluent limitations controlling its thermal component and as to which an application has been filed pursuant to 8 122.11 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 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 § 122.11(a) and the applicant has submitted its data and information pursuant to § 122.11(b)(1), the public notice of the proposed issuance, denial or modification of a permit shall include, in addition to the 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 Di. rector 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 Director 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 g 124.32(b) of this chapter and may request a hearing pursuant to § 124.36 of this chapter.

(2) If an application has been filed pursuant to § 122.11(a) and the applicant has filed a written plan of study and demonstration pursuant to § 122.11(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. 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 Director 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 $ 124.32(b)(1) of this chapter and may request a public hearing to consider such plan pursuant to $ 124.36 of this chapter.

(c) The public notice of any hearing held pursuant to § 122.15(a) shall include the information required by $ 124.37(b) of this chapter.

8 122.15 Determination of alternative ef.

fluent limitations. (a)(1) The Director 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 a 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 Director may determine that the alternative effluent limitations de. sired by the applicant will assure the protection and propagation of a balanced, indigenous community of shell. fish, 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 discharge prior to the filing of the notice required by $ 122.11(a), alternative effluent limitations may be established if the owner or operator has

$ 122.13 Plan of study and demonstration.

(a) Any written plan of study and § 122.11(b)(2) shall describe the alternative effluent limitations desired by the applicant and shall include an identification of the demonstration being contemplated, in accordance with § 122.15; 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 Director 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

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. Such evidence may consist of evidence intended to satisfy the requirements of paragraphs (b) (1) or (2) of this section, or any other new or historical biological data, physical monitoring data, engineering or diffusion models, or other relevant evidence.

additional species as the Director considers appropriate. The Director shall advise the applicant of the species selected within 60 days after receipt of notification under this subparagraph.

(B) If the available information is insufficient to enable the Director to select representative, important species, the applicant may, at the request of the Director, conduct such studies and furnish such evidence as may be necessary to select appropriate species. In such case, the applicant shall have the burden of proving the appropriateness of the species as well as that its discharge will assure the protection and propagation of such species.

(iii)(A) In determining whether or not the protection and propagation of the representative, important species will be assured, the Director may consider evidence demonstrating that the discharge will comply with any applicable temperature requirements for growth, reproduction and survival of such species as specified in any applicable water quality criteria and water quality information published by the Administrator pursuant to section 304(a) of the Act, and/or any additional information submitted by the owner or operator or required by the Director.

(B) Compliance with the temperature levels referred to in paragraph (b)(2)(iii)(A) of this section shall be determined outside a mixing zone whose temporal and spatial (area, volume, configuration and location) distribution will assure the protection and propagation of a balanced, indigenous community of shellfish, fish and wildlife in and on the receiving water body.

(3) Biological, engineering and other data. In the case of any source, whether or not it has commenced operation and discharge prior to the filing of the notice required by $122.11(a) and whether or not it has attempted or is attempting to provide the demonstrations described in paragraphs (b) (1) and (2) of this section, alternative effluent limitations may be established if the Director determines, on the basis of other evidence and data submitted by the applicant, that the alternative effluent limitations will

8 122.16 Public hearings.

(a) Requests for hearings. (1) If the public notice of the proposed issuance, denial or modification of a permit contains notice of an application for alternative effluent limitations and of the applicant's submittal of data and information pursuant to g 122.11(b)(1), any person may, within 30 days following the issuance of such notice, submit to the Director a request for a hearing pursuant to § 124.36 of this chapter to consider whether the alternative effluent limitations 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.

(2) If the public notice of the proposed issuance, denial or modification of a permit contains notice of an application for alternative effluent limitations and of the applicant's submittal of a proposed plan of study and demonstration pursuant to § 122.11(b)(2), any person may, within 30 days following the issuance of such notice, submit to the Director a request for a hearing pursuant to $ 124.36 of this chapter to consider whether such plan provides for the timely submittal of such information and data as may be necessary to determine whether the alternative effluent limitations 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.

(3) If a request for a hearing pursuant to paragraph (a)(1) of this section is granted, the Director shall consolidate this issue with other issues, if any, relating to the proposed permit

to any agreement entered into under § 124.46 and may request a public hearing to consider them pursuant to § 124.36.

§ 122.18 Transmission to Regional Administrator of issued effluent limitations.

Any State or interstate agency which has issued a permit containing effluent limitations with respect to the thermal component of a discharge shall, in transmitting a copy of the permit to the Regional Administrator pursuant to § 124.47 of this chapter indicate whether or not such effluent limitations are less stringent than would otherwise be required under section 301 or 306 of the Act and, if they are less stringent, shall also transmit the evidence (including the record of any hearing) upon which they were determined.

PART 123-STATE CERTIFICATION OF ACTIVITIES REQUIRING A FEDERAL LICENSE OR PERMIT

Subpart A-General

Sec. 123.1

Definitions.

123.2 Contents of certification. 123.3 Contents of application.

Subpart B-Determination of Effect on Other

States

123.11 Copies of documents. 123.12 Supplemental information. 123.13 Review by Regional Administrator and notification.

123.14 Forwarding to affected State.

123.15 Hearings on objection of affected State.

123.16 Waiver.

Subpart C-Certification by the Administrator 123.21 When Administrator certifies. 123.22 Applications. 123.23 Notice and hearing. 123.24 Certification. 123.25 Adoption of standards.

water quality 123.26 Inspection of facility or activity before operation.

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