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HomeMy WebLinkAboutNC0000272_Section 316 Topic memo_19880411 SECTION 316 TOPIC OMINE 316(a) : A VARIANCE 1. The Act 2, The Regulations 3. Application/Reapplication 4. Data Requirements 5. What 316(a) Can Be/Not Be Used For 6. Costs 7. PN/FS/Permit 316(b) [40 CFR 401.141 : A TECHNOLOGY 1. The Act 2. The Regulations 3. Application 4. Impacts 5. Data Requirements 6. Costs: Wholly Disproportionate 7. PN/FS/Permit "TnEr,%JUL DISCILN.RGES "SEC. 316. (a) 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 fhe ldm nistratar (or, if appropriate, the State) that any effluent limitation proposed for the control of the thermal component of any discharge from such S011r•ce will re(luirg effluent limitations more stringent than necessary to assure the pl• ction and propagation of a balanced, indigenous populatimi of shellfish, fish, and wildlife in and cn the body of Rater Alto u•hiell the dischal,_e is to he made, the Administrator (or, if Appropriate. the State) uiav impose a111 etlinellt 11initation under such sections for such plant. with respect to the thermal component of such discharge ('takinr into account the interaction of such thermal componcllt 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) Anv standard established pursuant to section 301 or section 306 of this Act and applicable to a point source sliall require that the location, clesic*n, construction, and capacity of cooling Rater intake btructures reflect the best technology available for minimizing adverse envil•oumental impact. "(c) \otwithstaucling any other provision of this Act. any point, source of a discliar�e having a thermal compponent, the modification of which point. source is commenced.after the date of enactment of the Federal Water Pollution Control _act Amendments of 1972 and Which, as modified, meets effluent limitations establishers under sec- tion 301 or, if more stringent, effluent limitations established under section 303 and which effluent limitations will assure protection and . propagation of a balanced, indigenous population of shellfish, fisk , and wildlife in or on the water into which the discharge is made, shall not be subject to any more stringent effluent limitation with respect to the theraral component of its discharge during a ten year period beginning on the elate 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 1934- whichever period ends first. CHK CLEAN HATER ACT SECTION 316 AND SUPPORTING Rft ULATIONS 316(a) The public notice and fact sheet for a facility under. 316(a) consideration must contain specific language to be consistent with prc milgated requirements. Regulations relative to 316(a) can be found in 40 CFR at: §122.21(m) (6) [also see §124.661 — applicatiori (and reapplication) §125.72(c) --------------- reapplication data requirements 9124.57(a) [also see 124.66] - public notice §124:8 —------—----------—---— fact sheet §125.70 - .73 ---------- - criteria for determinations 316(b) Applicable regulations for an individual cooling water intake are found in 40 CFR at: §401.14 -------------— restatement of 316(b) requirements _ Part 402 -----------— [1taserved] Part 125, Subpart I ----- [Reserved] All of these requirements are applicable to EPA 'or delegated state action. The Public Notice and Fact Sheet/Rationale must indicate when determinations are proposed under Sections 316(a) and/or (b) of the Act, including where a previous determination under 316(a) is to be continued. It is recanmended 'i that similar information be included in Part III, of the permit, stating when and what determinations have been made to assist in maintaining a paperwork trail for future permit reissuance. My study reports and determinations made should be retained and became a part of the individual permit reissuance file and available for public review. The discussion provided for 316(a) variances in the public notice and/or fact sheet/rationale must/should generally include the following six items as appropriate (see specific legal requirements in Part 124) : (1) The thermal component of the- discharge is subject to (STATE NAME) Water Quality Standards thermal criteria/requirerents [PN: §124.57(a) (1) ] . It is suggested that the specific thernal/mixinxg zone/biological require- nents of the WQS be included in the fact sheet. (2) A quantitative statement of the thermal limitations -proposed [PN: §124.57(a) (1) ] . (3) A stataawnt that a Section 316(a) request has been filed and a quanti- tative statement of the alternative effluent limitations requested [FS: §124.57(a) (2) ) . It is suggested that the information provided to support the request be su-cmrized in the fact sheet. (4) A statement that Section 316(a) of the CWA allows alternative limitations to be imposed on the thermal canponent of the discharge [FS: 1;.•, §124.57(a) (2) ] . It is suggested that the fact sheet include verbiage ;;::•> stating that alternative limitations can be authorized upon demonstration " by the applicant that the alternative limitations will assure the "protec- tion anZ p_ooaga ion of a balanced indigenous population c`_ shellfish, fish and wil-life in and on the receiving water body," - 2 (5) It is suggested that where the pennittee has previously requested and been granted §316(a) alternative limitations, that a discussion be provided in the fact sheet and include the dates of studies, demonstra- tions, and previous determinations. (6) It is suggested that where the state has made a tentative determina- tion to grant/continue a 316(a) variance that the basis be summarized in the fact sheet. It is desirable that a determination document be prepared indicating the basis for the decision, indicating any additional or new data, the fact that no changes have occurred, etc. Where a 316(a) variance is granted, the following paperwork trail and condi- tion paragraphs are recommended for Part III of the permit: On (date) , the permittee provided information to support his request that alternative thermal effluent limitations be imposed under Section 316(a) of the Clean Water Act. A determination was made on (date) that the permittee had submitted adequate information to demonstrate that such alternative limitations on the thermal ccnponent of his discharge will assure the "protection and propagation of a balanced, indigenous population of shellfish fish and wildlife in and on (name of receiving water body) . A determination has been made that continuation of this 316(a) variance is appropriate in the reissuance of this permit. Should permittee wish a continuation of its 316(a) variance beyond the term of this permit, reapplication for such continuation shall be submitted [in accordance with 40 CFR Part 125, subpart H and Section 122.21(1) (6) ] not later than 180 days prior to permit expiration. Reapplication shall include data and information to support continuation of the variance. On (date) , a determination was made in accordance with 40 CFR Part 401.14 that the location, design, construction, and capacity of the cooling water intake structure(s) reflects the best technology available for minimizing adverse environmental impact. This determination was based on information submitted by the permittee. 7. , 3 6 (b ) �f o C Fie- '7'0 y PkeT I L� d 4-�eifwria .AIPlkubb to Un Wafor IMe#a Stnnohrna Suction' 316(b) of fha - Ad- 11losorved]' 401.14 Cooling water Intake structures. ' The location, design, eonatructibn and capacity of cooling water intake ' structures of any point ,source for which a standard is established pursu- ant to section 301 or 306of .the Act _ etiall reflect the'best technology-avail- able for minimizing adverse environ- mental Impact, in accordance with the provisions of Part 402 of this chapter. (Sec. 601(a) of the Federal Water Pollution Control Act. as amended; 33 US.C. 1326(b) and 1261(a)) - 141 FR 17388.Apr.28,19761 - PART 402=[RESERVED] r, r ,Y UNITED STATES ENVIRONMENTAL PROTECTION AGENCY +i `� REGION IV 243 COURTLAND STREET ATLANTA. GEORGIA 30745 August 11, 1988 REF: 4WM-FP Mr. Ralph M. Sinclair Office of Water Management Bureau of Environment TN Department of Health 6 Environment T.E.R.R.A. Building 150 Ninth Avenue, North Nashville, TN 37203 RE: 316 Guidance for Permit Reissuance Dear Mr. Sinclair: Questions have arisen as to, what procedures and activities are necessary in reissuing a permit for a facility which has thermal limitations based .on a previous variance granted under Section 316(a) of the Clean Water Act. The following is provided as a follow-up to- information provided at the February 1988, EPA/State meeting in Destin, Florida. A thermal variance granted under 5316(a) terminates on expiration of the NPDES pe 't of which it is a part (Attachment A) . Procedures for a reissuance are virtually unchanged from an initial determination. The amount of data necessary to support the variance at the time of reissuance will probably be minimal. However, if conditions have changed materially, a significant quantity of informa- tion may be needed. NOTE: To the extent that permittees are unaware of these requirements, they should be notified of them expeditiously so that they can be prepared. The general procedure is as follows: 1. The permittee must request that the variance be continued,. preferably at the time of permit application. At that time, he should provide a basis for that continuance. The basis could be as side as: (a) plant operating conditions and load factors are unchanged and are expected to remain so for the term of the reissued permit, (b) there are no changes (to his knowledge) to plant discharges or other discharges in the plant site area which could interact with the thermal discharges, and (c) there are no changes (to his knowledge) to the biotic community of the receiving water body which would impact the previous 316 determinations. 2. If the per,-,sitting authority agrees with the basis, appropriate permit condi- tions would be developed; otherwise, additional data would be requested as neede�f. Re-est for additional data must be made within 60 days of receip'C of the application (Answer to Question 7, Attachment A). Additional studies can be made a permit requirement if needed (Ansree r to Question 7) . Paae 2 August 11, 1988 3. The Fact Sheet/Rationale should contain a summary of 316 variance activities from the previous permits (dates, determinations, limitations, etc. ) and an indication of the proposed basis for continuing the 316 variance. Sample language is included in Attachment B. 4. The Public notice requirements are contained in §124.75(a). Sample language is also included in Attachment B. Should you have have questions or need assistance, feel free to contact me at 404/347-3012. Sincerely yours, GI�K Charles H. Kaplan, P.E. National Expert Steam Electric/Po'ater Enclosures cc: 10 copies for distribution Identical letters sent to all states in Region IV ATPAOFA'IENrr A ;1f"ZO STA"T-.' •. •SMENT.�' ." ' :TIOF'. +*� WASHINGTON. D.C. 20460- molt - - orrice or 24 W ccwcwAL eouwsci • FEBf LD ' ' MEMORANDUM SUBJECT: Legal, Opinion on 5316 of. the Clean Wpte�r Act FROM: Gail B. Cooper, Attorney, e) Water &-Solid Waste Divi (A-1 1 ) TO: Joseph J. Zedrosser Regional Counsel Region II THRJ: Bruce M. Diamond` / "y Acting Associate General, Counsel Office of General' Counsel. (A-131 ) _ You revues.ted that this office ,prepare a legal opinion on several. permit-related issues pertaining to 5316 of the Clean Water Act (CWA) . This memorandum is our ,response to your request. A previous draft .was discussed with Wendy Fodge of your staff. Richard Stoll has . left EPA so you- should address any future 5316 questions to me. My number is' FTS 426-3246 . QUESTION 1 -Where a permittee requests and.. is granted a thermal variance pursuant to 5316{a) of .the Clean Water Act does fhe 'variance terminate upon expiration of the NPDES' permit term during which it was granted? Does the response io this question differ depending on whether the permittee had to alter- its operation to meet the requirements of the variance? -2- If the variance does not terminate , and the variance carries over into future renewal permits, does the' variance remain in effect (a ) for an indefinite period of time through all future renewal permits? (b) until the .permit issuing authority independently deter- mines that there has occurred a significant biological change affecting the assurance 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? (c) until the permit issuing authority independently deter- mines that a significant change has occurred with respect to the thermal loading of the receiving water body (i.e . , independent of any biological determination concerning balanced, indigenous populations)? - (d ) until a change occurs in the State thermal criteria for the receiving water body as a result of a .valid . review of State Water Quality Standards pursuant to 5303(c) of the Clean Water Act? (e ) until the permit issuing authority becomes aware that the effective operating life of the facility from which the thermal discharge emanates will exceed the effective operating life assumed by the permit issuing authority in formulating its decision to initially grant the requested variance? ANSWER A 5316 (aj thermal variance is a permit condition and it terminates at the same time as the NPDES permit of which it is a part expires. This is the rule for all variances and there is nothing in the CWA to suggest a different result for a 5316(a-) variance . In fact, the Agency's regulations establish procedures for renewal of a 5316 variance at the expiration of the permit. See 40 CFR 5125:72(c) and the note after 5125.72(f) . As explained in response to questions. 6 and 71 however, there is no requirement that EPA, the State , or applicant start from scratch when renewing a permit. The response to the question does not differ depending on whether the discharger had to alter. its operation to meet the requirements of the variance . Section 5316(c) of the statute provides that EPA cannot impose more stringent thermal effluent limitations for certain point sources for a ten year period but these restrictions affect the substantive requirements that can be imposed in a new permit, and not the requirement to renew a permit after five years. QUESTION 2 If the granting of a:variance`under 5316(a ) of- the Act remains, effective for more than a single permit term; what .circumstances.- other than those indicated in, Question 1:(b)—(e) would allow the permit issuing authority to impose different and/or' stricter thermal effluent limitations than those allowed in the variance? ' ANSWER There is no need - t0 answer' this. question. •� QUESTION 3 ' If the .duration of a 5316(a ) ,variance is limited to -a single permit term, or if .chinged circumstances can'- result in the imposition of stricter thermal effluent limitations after the granting of• a thermal variince .request, may the new thermal effluent limitations be proposed for a permit only during the permit issuance comment period? ANSWER A public'comment period is always necessary when a new or modified thermal variance is proposed. - However, as discussed below, a variance may be proposed before , after,' or in conjunc— tion with the _issuance of a_ permit. - There is no distinction between the procedures for issuance and renewal of a permit. Therefore , the procedures for renewal of a permit and variance are those appearing in 40 CFR 5124 for,• ,a new permit. 40 CFR 55124. 6 and 124.10 specifically require a public comment period on draft permits ; and 40 CFR 5124 .57 (a) .requires that public notice of the- draft permit contain information about requests for a .5316(a) variance. Normally, a variance request -is noticed for public comment at the same time- as the, draft permit. .However', under 40 CFR 5124.66(a ) ; a permit applicant may request a final decision - on a 5316(a ) variance before the final permit is issued . An early variance .decision _ s considered as permit issuance and is subject to the same requirements of public notice and - c omme ni If there is no early variance decision in a state`'where EPA is the• permit issuing authority and the Regional' Admini6trator determines under 40 CFR 5124.63 that it would. significantly delay the processing of the -rest of the permit to process the variance request simultaneously, the variance request. may be separated from the rest 'of the permit. In- this case , • the Regional Administrator is required to prepare••a new -4- draft permit and give public notice of his tentative determination on the variance . 40 CFR 5124. 63(a) (3) states that the- only matters to be considered at that time are those relating to the variance ; thus, issues pertaining to other aspects of the permit are not to be reopened. The Administrator also may modify a permit during its term if the proposed modification is consistent with 40 CFR 5122.15. In such cases, 40 CFR 5124.5(c) . requires the permit issuing authority to prepare a draft permit under 40 CFR 5124.6 and give public notice. It is important to remember that 5316(c) of the statute restricts the issuance of more stringent thermal effluent limitations for a ten year period if the discharger modified the point source after 1972, is currently in compliance with effluent limitations issued under sections 301 and 303, and is discharging at a level which assures the protection and propagation of a balanced, indigeneous 'population of shellfish, fish, a;sd wildlife - QUESTION 4 Where an EPA-issued permit for which the permittee has timely requested a variance under 5316 (a) of the Clean Water Act has expired prior to the Regional Administrator's determination, and where EPA has .retained permit issuing authority, may EPA d variance prior to the effective date of a grant the requeste subsequently issued permit (e -g. , where significant delay is contemplated prior to issuance of the subsequent permit)? If so, must any special procedure .be followed? _ ANSWER EPA may grant a 5316(a) variance prior to a final agency decision on a permit application . 40 CFR SS124.63, 124.66 , and 125.72(f ) establish specific procedures for early decisions on 5316 (a) variances . QUESTION 5 Where an EPA-issued permit for which the permittee has timely requested a variance under 5316 (a) of the Clean Water Act has- expired prior to the Regional Administrator's determination and where permit issuing authority has been assumed by a state during the term of the EPA-issued permit, (a ) may EPA grant the requested variance prior to the effective date of asubsequently issued permit? If so, must any special (b) may only the permit issuing State issue the determination with respect to the requested variance? if (b ) , (c) may the State make a determination with respect to the requested variance prior to the effective " date of the' permit which it issues? If so, must any special procedure be followed? " ANSWER (a) The answer to your question' depends upon what EPA has arranged with the State . 40 CFR 5123.71 (d ) provides -that after an NPDES program is approved, EPA retains jurisdiction over any permit it has issued unless the Memorandum of Agreement with the State provides that the ..State will assume ,responsibility.. . This retention of jurisdiction includes the processing of variae requests': • Even where the EPA permit has expired (as in. the example you give ) , EPA may retain jurisdiction until the matter is resolved if the State agrees to that approach. (b) The answer depends on .the terms of the Memorandum of Agreement between EPA and the State. 40 CFR 5123.71 (d ) allows the division of responsibility to be worked out on a state-by-state basis. (c ) The State 's own laws or regulations determine whether the State can make a variance decision prior to the effective date of a permit. 40 CFR S124. 66 procedures are not binding on States . QUESTION 6 If a determination applying the criteria of. 5316 (b) of the Clean Water Act is made by the permit issuing authority; (a ) does that determination control 5316 (b)-related considerations in subsequently issued permits? (b) must the permit issuing. authority make a new 5316 (b)-based determination with respect to each permit by considering best cooling water intake structure technology available for minimizing adverse environmental impact . as it exists at the. time of. formulating conditions to apply through the term of each subsequently issued permit? (c) MEy the permit issuing authority, at its option ,mak �- e a new 5316(b)—based determination with respect to a particular permit by considering best cooling water intake structure technology available fpr minimizing adverse environmental impact as it exists at the time of formulating conditions to apply through the term of the renewal permit being considered? ANSWER This question appears to ask whether EPA is permanently bound by the first determination applying 5316(b) , particularly with respect to whether the cooling ablewater forintake minimizingstructure adverse reflects the best technology avail environmental impact. As a general matter, we are aware of nothing in the Act or its legislative history that would indicate that 5316(b) determinations are exempt from the general rule that in issuing a new NPDES permit, the expiring permit conditions may be adjusted. Where appropriate 1/, permit conditions can be made more stringent or less stringent. 40 CFR 5122.62(1 ) . Therefore , it is not accurate to conclude that a determination made under 5316 (b) is permanently binding. At the same time , there is no requirement that either the permit issuing authority or the applicant start from scratch every time a NPDES permit containing 5316(b) limitations. expires. Indeed, with regard to 5316 (a ) decisions, neither y. 40 CFR 5125 .72(c ) nor the note after 5125.72(f) (the provisions covering the kinds of data to be collected under 5316 (a) ) ,' suggest or require that the application and review process proceed as if there had not been a previous 5316 (a) -variance determination. Presumably, the same would hold true under 5316 (b ) . Larauage. in the preamble to the final 1979 NPDES regulations clarifies EPA's intent in regard to 5316 (a) : `l/ Both 5316(c) and 5306(d ) impose limits on the permit issuing authority 's ability to require compliance with stricter )standards within ten years of the time a facility is modified or constructed. The .regulitions have also been revised to provide that the specific forms of. studiea -prescribed apply 1. only to. the initial . grant o£. a section 316(a) variance. In many cases, neither the nature of''the thermal discharge nor the, aquatic population Wil T have changed -since a variance-.. vas initially. granted. ' It would therefore be an unnecessary ,and costly burden on the Agency and dischargers alike to require a full section 316 (a) demonsiration' for• each renewal. Section 125.72 accordingly gives the Director the flexibility to require substantiaily •less information in the case of renewal requests. -This- doezzWot meanw_showeve a{ Tie hector:maymotrroqudrev& oful}. d mor s �,£.or� ra• sene.wal�,u"-,,4. awkA,,W -ez,�he>has =E$6.OLI1stA 3 xe�xt2iat; ircumstances<have-!zhanged•, tbat e�i'i46r4,al�vfirimnee3:may--have `been:<3mproperly~ r.. granter7; poi t�"at some`"aa jbstment in the--terms'of 'the ' irit��3�a��anep�ltie�y�e' warrante8v=w-Persons�olding ' such*��ial� `o "coiirsebepreparEd. to `jus:tif-Yi�wi bhfi WthTD*studiesybasedAonaact-ual. ape"rat�i � sites; hnd comment -has*en-added �#o=•ttih't=���f��ct'n��f'�f'R'':32694'`�(�un� �19�-93.� . The.. same=llogi,c,46ap�i'f as$to'5316'(b ) . QUESTION 7 1 Under what circumstances, if any, may EPA or a NPDES State be -�� barred from requiring a permittee to perform additional or updated biological monitoring or studies (with respect . to 5316 (b ) of the Act ) , or thermal modeling , monitoring, or studies .(with respect to 5316 (a ) of .the Act ) as a condition of subsequently issued permit? ANSWER Neither EPA •nor the NPDES• state is barred from requiring additional S316 studies as a condition to renewing a variance or permit. 40 CFR 5125.72(c ) specifically authorizes the permit issuing authority to require applicants for variance renewals to submit the types of information described in 40 CFR 5125.72 (a ) and (b) and 5124.73(c) (1 ) . Further, the note at the end of- 40 CFR S125.72 states that a discharger seeking to renew a 5316 (a ) variance should be prepared to support continuance of the variance with studies based on the dischar9er's •actual operating experience. Thus, while applicants are not . required to submit the detailed plan of study required by 40 CFR 5125.72(b) , EPA can request information and studies it believes .are necessary for a 5316 (a ) demonstration. However, requests" for information must be made within '60 days of receipt of the application. With respect to 6316(b) determinations, there 'is no specific provision addressing EPA's ability to obtain additional data. EPA would have the authority to obtain information to the extent authorized by 5308 of the Act. 40 CFR 5122.7(h) also allows EPA or the NPDES State to require permittees to furnish permit-related information upon request. Since variances are incorporated into permits, this can be construed to cover information pertinent to renewal. of the variance. cc: Wendy Fodge , Region- II 'Bill -Jordan, Office of Water Enforcement �. and Permits ATTACiMit B SAMPLE LANGUAGE PUBLIC NOTICE and FACT SHEET/RATIONALE CLEAN WATER ACT 5316(a) and (b) The thermal camponent .of the discharge is subject to compliance with (State name) Water ,Quality Standards. Section (citation) *of the (citation) provides that heated water discharges (appropriate requirements for discharge tempera- ture, temperature rise, mixing zone, etc. as applicable). Notwithstanding these requirements, Section 316(a) of the Clean Water Act (the Act) allows the permitting authority to impose alternative and less stringent thermal limitations after demonstration that the water quality standards limitations are more stringent than necessary to assure the protection and propagation of a balanced, indigenous population of shellfish, fish, and wildlife in and on the receiving water. In addition, Section 316(b) of the Act requires that the location, design, construction, and capacity of a cooling water intake structure reflect the best technology available for minimizing environmental impacts. On (date), as a part of pemitting activities on his previous NPDES permit, (the permittee) provided information to suport his request that alternative thermal effluent limitations (insert description of alternate requested or imposed) be allowed under Section 316(a) of the Act. A determination was made on (date) that the permittee had submitted adequate information to demonstrate that such alternative limitations on the thermal carponent of his discharge will assure the "protection and propagation of a balanced, indigenous population of shellfish fish and wildlife in and on (name of receiving water body). On (date) , as part of his application for reissuance the NPDES Permit, (the permittee) requested that the 5316(a) variance be continued. To supbort the request (the permittee) has privided the following rationale: (insert). A tentative determination has been made that (continuation of this 316(a) variance* is appropriate in the reissuance of this permit or indicate the proposed changes or biological monitioring requirements). . — On (date), a determination was made in accordance with Section 316(b) of the Act that the location, design, construction, and capacity of the cooling water intake_structure(s) reflects the best technology available for minimiz- ing adverse environmental impact. This determination was based on information submitted by (the permittee). It has been tentatively determined that the cooling water intake structure(s) [continue to reflect or does not reflect] best technology available and proposes (no changes to the intake at this time or indicate required changes or biological studies to be required).