§ 1311. — Effluent limitations.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 33USC1311]
TITLE 33--NAVIGATION AND NAVIGABLE WATERS
CHAPTER 26--WATER POLLUTION PREVENTION AND CONTROL
SUBCHAPTER III--STANDARDS AND ENFORCEMENT
Sec. 1311. Effluent limitations
(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);
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\1\ So in original. Probably should be ``than''.
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(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;
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\2\ So in original. Probably should be ``contractual''.
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(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.
(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.
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:
Date by which the final
``Category regulation shall be
promulgated
Organic chemicals and plastics and synthetic December 31, 1986.
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.
Section Referred to in Other Sections
This section is referred to in sections 1255, 1292, 1293a, 1297,
1312, 1313, 1314, 1317, 1319, 1325, 1326, 1341, 1342, 1344, 1365, 1367,
1369 of this title; title 42 section 6925.
