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HomeMy WebLinkAboutNC0000272_Report (Appendix E)_20181113Appendix E Relevant Statutes & Regulations LexisNexis' UNITED STATES CODE SERVICE Copyright © 2013 Matthew Bender & Company, Inc. a member of the LexisNexis Group (TM) All rights reserved. * * * Current through PL 113-57, approved 12/9/ 13 * * * TITLE 33. NAVIGATION AND NAVIGABLE WATERS CHAPTER 26. WATER POLLUTION PREVENTION AND CONTROL STANDARDS AND ENFORCEMENT Go to the United States Code Service Archive Directory 33 USCS § 1326 § 1326, Thermal discharges Page 1 (a) Effluent limitations that will assure protection and propagation of balanced, indigenous popula- tion of shellfish, fish, and wildlife. With respect to any point source otherwise subject to the provi- sions of section 301 or section 306 of this Act [33 USCS § 1311 or 1316], whenever the owner or operator of any such source, after opportunity for public hearing, can demonstrate to the satisfaction of the Administrator (or, if appropriate, the State) that any effluent limitation proposed for the con- trol of the thermal component of any discharge from such source will require effluent limitations more stringent than necessary to assure the projection [protection] and propagation of a balanced, indigenous population of shellfish, fish, and wildlife in and on the body of water into which the discharge is to be made, the Administrator (or, if appropriate, the State) may impose an effluent limitation under such sections for such plant, with respect to the thermal component of such dis- charge (taking into account the interaction of such thermal component with other pollutants), that will assure the protection and propagation of a balanced, indigenous population of shellfish, fish, and wildlife in and on that body of water. (b) Cooling water intake structures. Any standard established pursuant to section 301 or section 306 of this Act [33 USCS § 1311 or 1316] and applicable to a point source shall require that the lo- cation, design, construction, and capacity of cooling water intake structures reflect the best tech- nology available for minimizing adverse environmental impact. (c) Period of protection from more stringent effluent limitations following discharge point source modification commenced after October 18, 1972. Notwithstanding any other provision of this Act [33 USCS §§ 1251 et seq.], any point source of a discharge having a thermal component, the modi- fication of which point source is commenced after the date of enactment of the Federal Water Pollu- Page 2 33 USCS § 1326 tion Control Act Amendments of 1972 [enacted Oct, 18, 1972] and which, as modified, meets ef- fluent limitations established under section 301 [33 USCS§ 1311] or, if more stringent, effluent limitations established under section 303 [33 USCS § 1313] and which effluent limitations will as- sure protection and propagation of a balanced, indigenous population of shellfish, fish, and wildlife in or on the water into which the discharge is made, shall not be subject to any more stringent ef- fluent limitation with respect to the thermal component of its discharge during a ten year period be- ginning on the date of completion of such modification or during the period of depreciation or amortization of such facility for the purpose of section 167 or 169 (or both) of the Internal Revenue Code of 1954 [1986] [26 USCS § 167 or 169], whichever period ends first, HISTORY: (June 30, 1948, ch 758, Title III, § 316, as added Oct. 18, 1972, P.L. 92-500, § 2, 86 Stat. 876,) HISTORY; ANCILLARY LAWS AND DIRECTIVES Explanatory notes: The word "protection" has been inserted in brackets in subsec. (a) as the word probably intended by Congress. "1986" has been inserted in brackets in subsec. (c) pursuant to § 2 of Act Oct. 22, 1986, P.L. 99-514, which redesignated the Internal Revenue Code of 1954 (Act Aug. 16, 1954, ch 736) as the Internal Revenue Code of 1986, In redesignating the Internal Revenue Code of 1954 as the Inter- nal Revenue Code of 1986, Congress provided, in Act Oct, 22, 1986, P.L. 99-514, § 2(b), 100 Stat. 2095, for construction of references to the Internal Revenue Code as follows: except when inappro- priate, any reference in any law, Executive Order, or other document to the Internal Revenue Code of 1954 shall include a reference to the Internal Revenue Code of 1986 and any reference to the In- ternal Revenue Code of 1986 shall include a reference to the provisions of law formerly known as the Internal Revenue Code of 1954, NOTES: Code of Federal Regulations: Coast Guard, Department of Homeland Security --Maritime security: general, 33 CFR 101.100 et seq. Environmental Protection Agency --OMB approvals under the Paperwork Reduction Act, 40 CFR 9.1 et seq, Environmental Protection Agency --General provisions, 40 CFR 401,10 et seq. Environmental Protection Agency --Sugar processing point source category, 40 CFR 409.10 et seq. Environmental Protection Agency --Concentrated aquatic animal production point source cate- gory, 40 CFR 451.1 et seq. Related Statutes & Rules: Page 1 4'LexisNexis�' NORTH CAROLINA ADMINISTRATIVE CODE Copyright (c) 2013 by the North Carolina Office of Administrative Law *** CURRENT WITH RULES RECEIVED THROUGH NOVEMBER 15, 2013 *** TITLE 15A. DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES CHAPTER 2. ENVIRONMENTAL MANAGEMENT SUBCHAPTER 2B. SURFACE WATER AND WETLAND STANDARDS SECTION .0200. CLASSIFICATIONS AND WATER QUALITY STANDARDS APPLICABLE TO SURFACE WATERS AND WETLANDS OF NORTH CAROLINA 15A N.C.A.C. 2B.0208 (2013) .0208 STANDARDS FOR TOXIC SUBSTANCES AND TEMPERATURE (a) Toxic Substances: the concentration of toxic substances, either alone or in combination with other wastes, in surface waters shall not render waters injurious to aquatic life or wildlife, recrea- tional activities, public health, or impair the waters for any designated uses. Specific standards for toxic substances to protect freshwater and tidal saltwater uses are listed in Rules .0211 and .0220 of this Section, respectively. Procedures for interpreting the narrative standard for toxic substances and numerical standards applicable to all waters are as follows: (1) Aquatic life standards: the concentration of toxic substances shall not result in chronic tox- icity. Any levels in excess of the chronic value shall be considered to result in chronic toxicity. In the absence of direct measurements of chronic toxicity, the concentration of toxic substances shall not exceed the concentration specified by the fraction of the lowest LC50 value that predicts a no effect chronic level (as determined by the use of acceptable acute/chronic ratios). If an acceptable acute/chronic ratio is not available, then that toxic substance shall not exceed one -one hundredth (0.01) of the lowest LC50 or if it is affirmatively demonstrated that a toxic substance has a half-life of less than 96 hours the maximum concentration shall not exceed one -twentieth (0.05) of the low- est LC50; (2) Human health standards: the concentration of toxic substances shall not exceed the level necessary to protect human health through exposure routes of fish tissue consumption, water con- sumption, or other route identified as appropriate for the water body. Fish tissue consumption in- cludes the consumption of shellfish; (A) For non -carcinogens, these concentrations shall be determined using a Reference Dose (RfD) as published by the U.S. Environmental Protection Agency pursuant to Section 304(a) of the Federal Water Pollution Control Act as amended or a RID issued by the U.S. Environmental Pro- tection Agency as listed in the Integrated Risk Information System (IRIS) file or a RfD approved by the Director after consultation with the State Health director. Water quality standards or criteria Page 2 15A N.C.A.C. 2B.0208 used to calculate water quality based effluent limitations to protect human health through the dif- ferent exposure routes are determined as follows: (i) Fish tissue consumption: WQS = (RfD x RSC) x Body Weight / (FCR x BCF)where: WQS = water quality standard or criteria; RfD = reference dose; RSC = Relative Source Contribution; FCR = fish consumption rate (based upon 17.5 gm/person-day); BCF = bioconcentration factor, or bioaccumulation factor (BAF), as appropriate. Pursuant to Section 304(a) of the Federal Water Pollution Control Act as amended BCF or BAF values, literature values, or site specific bioconcentration data approved by the Commission or its designee are based on U.S. Environmental Protection Agency publications; FCR values are average consumption rates for a 70 Kg adult for the lifetime of the population; alternative FCR values may be used when it is considered necessary to protect localized populations that maybe consuming fish at a higher rate; RSC values, when made available through U.S. Environmental Protection Agency publications pursuant to Section 304(a) of the Federal Clean Water Pollution Control Act to account for non -water sources of exposure may be either a percentage (multiplied) or amount subtracted, depending on whether multiple criteria are relevant to the chemical; (ii) Water consumption (including a correction for fish consumption): WQS = (RfD x RSC) x Body Weight / [WCPk(FCRxBCF)] where: WQS = water quality standard or criteria; RfD = reference dose; RSC = Relative Source Contribution; FCR = fish consumption rate (based upon 17.5 gm/person-day); BCF = bioconcentration factor, or bioaccumulation factor (BAF), as appropriate; WCR = water consumption rate (assumed to be two liters per day for adults). To protect sensitive groups, exposure is based on a 10 Kg child drinking one liter of water per day. Standards may also be based on drinking water standards based on the requirements of the Federal Safe Drinking Water Act [42 U.S.C. 300(f)(g)-1]. For non -carcinogens, specific numerical water quality standards have not been included in this Rule because water quality standards to pro- tect aquatic life for all toxic substances for which standards have been considered are more stringent than numerical standards to protect human health from non -carcinogens through consumption of fish; standards to protect human health from non -carcinogens through water consumption are listed under the water supply classification standards in Rule .0211 of this Section; the equations listed in this Subparagraph shall be used to develop water quality based effluent limitations on a case -by -case basis for toxic substances that are not presently included in the water quality standards. Page 3 15A N.C,A,C, 2B.0208 Alternative FCR values may be used when it is considered necessary to protect localized popula- tions that may be consuming fish at a higher rate; (B) For carcinogens, the concentrations of toxic substances shall not result in unacceptable health risks and shall be based on a Carcinogenic Potency Factor (CPF), An unacceptable health risk for cancer shall be considered to be more than one case of cancer per one million people ex- posed (10-6 risk level). The CPF is a measure of the cancer -causing potency of a substance esti- mated by the upper 95 percent confidence limit of the slope of a straight line calculated by the Lin- earized Multistage Model or other appropriate model according to U.S. Environmental Protection Agency Guidelines [FR 51 (185): 33992-34003; and FR 45 (231 Part V): 79318-79379]. Water quality standards or criteria for water quality based effluent limitations are calculated using the procedures given in Subparagraphs (A) and (B) of this Rule. Standards to protect human health from carcinogens through water consumption are listed under the water supply classification stand- ards in Rules ,0212, ,0214, .0215, .0216, and .0218 of this Section; standards to protect human health from carcinogens through the consumption of fish (and shellfish) only are applicable to all waters as follows: (i) Aldrin: 0.05 ng/l; (ii) Arsenic: 10 ug/l; (iii) Benzene: 51 ug/l; (iv) Carbon tetrachloride: 1.6 ug/l; (v) Chlordane: 0,8 ng/1; (vi) DDT: 0.2 ng/l; (vii) Dieldrin: 0,05 ng/l; (viii) Dioxin: 0,000005 ng/l; (ix) Heptachlor: 0,08 ng/l; (x) Hexachlorobutadiene: 18 ug/l; (xi) Polychlorinated biphenyls (total of all identified PCBs and congeners): 0,064 ng/l; (xii) Polynuclear aromatic hydrocarbons (total of all PAHs): 3 L I ng/l; (xiii) Tetrachloroethane (1,1,2,2): 4 ug/l; (xiv) Tetrachloroethylene: 3,3 ug/L; (xvi) Trichloroethylene: 30 ug/l; (xvii) Vinyl chloride: 2.4 ug/l. The values listed in Subparts (i) through (xvii) may be adjusted by the Commission or its de- signee on a case -by -case basis to account for site -specific or chemical -specific information pertain- ing to the assumed BCF, FCR or CPF values or other data; (b) Temperature: the Commission may establish a water quality standard for temperature for specific water bodies other than the standards specified in Rules 0211 and ,0220 of this Section, upon a case -by -case determination that thermal discharges to these waters, that serve or may serve as a source or receptor of industrial cooling water provide for the maintenance of the designated Page 4 15A N.C.A,C. 2B4O208 best use throughout a reasonable portion of the water body. Such revisions of the temperature standard must be consistent with the provisions of Section 316(a) of the Federal Water Pollution Control Act as amended. A listing of existing thermal revisions shall be maintained and made available to the public by the Division. Authority G.S. 143-214.1; 143-215.3(a)(1); NOTES: History Note: Eff, February 1, 1976; Amended Eff. May 1, 2007; April 1, 2003; February 1, 1993; October 1, 1989; January 1, 1985; September 9, 1979. LexisNexis 50 State Surveys, Legislation & Regulations Water Quality Page 1 10 LexisNexis' LEXISNEXIS' CODE OF FEDERAL REGULATIONS Copyright (c) 2013, by Matthew Bender & Company, a member of the LexisNexis Group. All rights reserved. *** This section is current through the December 30, 2013 *** * * * issue of the Federal Register * * * * * * with the exception of 78 FR 77796, December 24, 2013 TITLE 40-- PROTECTION OF ENVIRONMENT CHAPTER I -- ENVIRONMENTAL PROTECTION AGENCY SUBCHAPTER D -- WATER PROGRAMS PART 125 -- CRITERIA AND STANDARDS FOR THE NATIONAL POLLUTANT DIS- CHARGE ELIMINATION SYSTEM SUBPART H -- CRITERIA FOR DETERMINING ALTERNATIVE EFFLUENT LIMITA- TIONS UNDER SECTION 316(A) OF THE ACT Go to the CFR Archive Directory 40 CFR 125.70 § 125.70 Purpose and scope. Section 316(a) of the Act provides that: "With respect to any point source otherwise subject to the provisions of section 301 or section 306 of this Act, whenever the owner or operator of any such source, after opportunity for public hearing, can demonstrate to the satisfaction of the Administrator (or, if appropriate, the State) that any effluent limitation proposed for the control of the thermal component of any discharge from such source will require effluent limitations more stringent than necessary to assure the projection [sic] and propagation of a balanced, indigenous population of shellfish, fish and wildlife in and on the body of water into which the discharge is to be made, the Administrator (or, if appropriate, the State) may impose an effluent limitation under such sections on such plant, with respect to the thermal component of such discharge (taking into account the interaction of such thermal compo- nent with other pollutants), that will assure the protection and propagation of a balanced indigenous population of shellfish, fish and wildlife in and on that body of water." This subpart describes the factors, criteria and standards for the establishment of alternative thermal effluent limitations under section 316(a) of the Act in permits issued under section 402(a) of the Act. Page 2 40 CFR 125.70 HISTORY: [47 FR 53675, Nov. 26, 1982] AUTHORITY: AUTHORITY NOTE APPLICABLE TO ENTIRE PART; The Clean Water Act, 33 U.S.C. 1251 et seq, Page 1 16'LexisNexis'. LEXISNEXIS' CODE OF FEDERAL REGULATIONS Copyright (c) 2013, by Matthew Bender & Company, a member of the LexisNexis Group. All rights reserved. ** This section is current through the December 30, 2013 *** * * * issue of the Federal Register * * * * * * with the exception of 78 FR 77796, December 24, 2013 TITLE 40-- PROTECTION OF ENVIRONMENT CHAPTER I -- ENVIRONMENTAL PROTECTION AGENCY SUBCHAPTER D -- WATER PROGRAMS PART 125 -- CRITERIA AND STANDARDS FOR THE NATIONAL POLLUTANT DIS- CHARGE ELIMINATION SYSTEM SUBPART H -- CRITERIA FOR DETERMINING ALTERNATIVE EFFLUENT LIMITA- TIONS UNDER SECTION 316(A) OF THE ACT Go to the CFR Archive Directory 40 CFR 125.71 § 125.71 Definitions. For the purpose of this subpart: (a) Alternative effluent limitations means all effluent limitations or standards of performance for the control of the thermal component of any discharge which are established under section 316(a) and this subpart. (b) Representative important species means species which are representative, in terms of their biological needs, of a balanced, indigenous community of shellfish, fish and wildlife in the body of water into which a discharge of heat is made. (c) The term balanced, indigenous community is synonymous with the term balanced, indige- nous population in the Act and means a biotic community typically characterized by diversity, the capacity to sustain itself through cyclic seasonal changes, presence of necessary food chain species and by a lack of domination by pollution tolerant species. Such a community may include histori- cally non-native species introduced in connection with a program of wildlife management and spe- cies whose presence or abundance results from substantial, irreversible environmental modifica- tions. Normally, however, such a community will not include species whose presence or abundance is attributable to the introduction of pollutants that will be eliminated by compliance by all sources Page 2 40 CFR 125.71 with section 301(b)(2) of the Act; and may not include species whose presence or abundance is at- tributable to alternative effluent limitations imposed pursuant to section 316(a). HISTORY: [44 FR 32948, June 7, 1979] AUTHORITY: AUTHORITY NOTE APPLICABLE TO ENTIRE PART: The Clean Water Act, 33 U.S.C. 1251 et seq. Page 1 * LexisNexis'o LEXISNEXIS' CODE OF FEDERAL REGULATIONS Copyright (c) 2013, by Matthew Bender & Company, a member of the LexisNexis Group, All rights reserved, *** This section is current through the December 30, 2013 *** * * * issue of the Federal Register * * * * * * with the exception of 78 FR 77796, December 24, 2013 TITLE 40-- PROTECTION OF ENVIRONMENT CHAPTER I -- ENVIRONMENTAL PROTECTION AGENCY SUBCHAPTER D -- WATER PROGRAMS PART 125 -- CRITERIA AND STANDARDS FOR THE NATIONAL POLLUTANT DIS- CHARGE ELIMINATION SYSTEM SUBPART H -- CRITERIA FOR DETERMINING ALTERNATIVE EFFLUENT LIMITA- TIONS UNDER SECTION 316(A) OF THE ACT Go to the CFR Archive Directory 40 CFR 125.72 § 125,72 Early screening of applications for section 316(a) variances. (a) Any initial application for a section 316(a) variance shall include the following early screening information: (1) A description of the alternative effluent limitation requested; (2) A general description of the method by which the discharger proposes to demonstrate that the otherwise applicable thermal discharge effluent limitations are more stringent than necessary; (3) A general description of the type of data, studies, experiments and other information which the discharger intends to submit for the demonstration; and (4) Such data and information as may be available to assist the Director in selecting the appro- priate representative important species, (b) After submitting the early screening information under paragraph (a) of this section, the discharger shall consult with the Director at the earliest practicable time (but not later than 30 days after the application is filed) to discuss the discharger's early screening information. Within 60 days after the application is filed, the discharger shall submit for the Director's approval a detailed plan of study which the discharger will undertake to support its section 316(a) demonstration. The dis- Page 2 40 CFR 125.72 charger shall specify the nature and extent of the following type of information to be included in the plan of study: Biological, hydrographical and meteorological data; physical monitoring data; engi- neering or diffusion models; laboratory studies; representative important species; and other relevant information. In selecting representative important species, special consideration shall be given to species mentioned in applicable water quality standards. After the discharger submits its detailed plan of study, the Director shall either approve the plan or specify any necessary revisions to the plan. The discharger shall provide any additional information or studies which the Director subse- quently determines necessary to support the demonstration, including such studies or inspections as may be necessary to select representative important species. The discharger may provide any addi- tional information or studies which the discharger feels are appropriate to support the demonstra- tion. (c) Any application for the renewal of a section 316(a) variance shall include only such infor- mation described in paragraphs (a) and (b) of this section as the Director requests within 60 days after receipt of the permit application. (d) The Director shall promptly notify the Secretary of Commerce and the Secretary of the In- terior, and any affected State of the filing of the request and shall consider any timely recommenda- tions they submit. (e) In malting the demonstration the discharger shall consider any information or guidance published by EPA to assist in malting such demonstrations. (f) If an applicant desires a ruling on a section 316(a) application before the ruling on any other necessary permit terms and conditions, (as provided by § 124.65), it shall so request upon filing its application under paragraph (a) of this section. This request shall be granted or denied at the discre- tion of the Director. Note: At the expiration of the permit, any discharger holding a section 316(a) variance should be prepared to support the continuation of the variance with studies based on the discharger's actual operation experience. HISTORY: [44 FR 32948, June 7, 1979, as amended at 45 FR 33513, May 19, 1980; 65 FR 30886, 30913, May 15, 2000] AUTHORITY: AUTHORITY NOTE APPLICABLE TO ENTIRE PART: The Clean Water Act, 33 U.S.C. 1251 et seq. NOTES: [EFFECTIVE DATE NOTE: 65 FR 30886, 30913, May 15, 2000, removed the words "and § 124.73(c)(1)" in paragraph (c), effective June 14, 2000.] Page I LexisNex*K LEXISNEXIS' CODE OF FEDERAL REGULATIONS Copyright (c) 2013, by Matthew Bender & Company, a member of the LexisNexis Group. All rights reserved. * * * This section is current through the December 30, 2013 * * * issue of the Federal Register * * * * * * with the exception of 78 FR 77796, December 24, 2013 TITLE 40-- PROTECTION OF ENVIRONMENT CHAPTER I -- ENVIRONMENTAL PROTECTION AGENCY SUBCHAPTER D -- WATER PROGRAMS PART 125 -- CRITERIA AND STANDARDS FOR THE NATIONAL POLLUTANT DIS- CHARGE ELIMINATION SYSTEM SUBPART H -- CRITERIA FOR DETERMINING ALTERNATIVE EFFLUENT LIMITA- TIONS UNDER SECTION 316(A) OF THE ACT Go to the CFR Archive Directory 40 CFR 125.73 § 125,73 Criteria and standards for the determination of alternative effluent limitations under sec- tion 316(a). (a) Thermal discharge effluent limitations or standards established in permits may be less strin- gent than those required by applicable standards and limitations if the discharger demonstrates to the satisfaction of the director that such effluent limitations are more stringent than necessary to as- sure 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. This demonstration must show that the alternative effluent limitation desired by the discharger, considering the cumulative impact of its thermal discharge together with all other significant impacts on the species affected, 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. (b) In determining whether or not the protection and propagation of the affected species will be assured, the Director may consider any information contained or referenced in any applicable ther- mal water quality criteria and thermal water quality information published by the Administrator under section 304(a) of the Act, or any other information he deems relevant. Page 2 40 CFR 125.73 (c) (1) Existing dischargers may base their demonstration upon the absence of prior appreciable harm in lieu of predictive studies, Any such demonstrations shall show: (i) That no appreciable harm has resulted from the normal component of the discharge (taking into account the interaction of such thermal component with other pollutants and the additive effect of other thermal sources to a balanced, indigenous community of shellfish, fish and wildlife in and on the body of water into which the discharge has been made; or (ii) That despite the occurrence of such previous harm, the desired alternative effluent limita- tions (or appropriate modifications thereof) will nevertheless 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, (2) In determining whether or not prior appreciable harm has occurred, the Director shall con- sider the length of time in which the applicant has been discharging and the nature of the discharge. HISTORY: [44 FR 32948, June 7, 1979] AUTHORITY: AUTHORITY NOTE APPLICABLE TO ENTIRE PART: The Clean Water Act, 33 U.S.C. 1251 et seq.