CFR 2021 Title40 Vol27

Title 40
Protection of Environment
Parts 190 to 259
Revised as of July 1, 2021
Containing a codification of documents

of general applicability and future effect
As of July 1, 2021
Published by Office of the Federal Register

National Archives and Records Administration
as a Special Edition of the Federal Register
spaschal on DSKJM0X7X2PROD with CFR
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Table of Contents
Page
Explanation ................................................................................................ v
Title 40:
Chapter I—Environmental Protection Agency (Continued) ............ 3
Finding Aids:
Table of CFR Titles and Chapters ....................................................... 565
Alphabetical List of Agencies Appearing in the CFR ......................... 585
List of CFR Sections Affected ............................................................. 595

iii
Cite this Code: CFR
To cite the regulations in

this volume use title,
part and section num-
ber. Thus, 40 CFR
190.01 refers to title 40,
part 190, section 01.
iv
Explanation
The Code of Federal Regulations is a codification of the general and permanent
rules published in the Federal Register by the Executive departments and agen-
cies of the Federal Government. The Code is divided into 50 titles which represent
broad areas subject to Federal regulation. Each title is divided into chapters
which usually bear the name of the issuing agency. Each chapter is further sub-
divided into parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year and issued
on a quarterly basis approximately as follows:
Title 1 through Title 16..............................................................as of January 1
Title 17 through Title 27 .................................................................as of April 1
Title 28 through Title 41 ..................................................................as of July 1
Title 42 through Title 50 .............................................................as of October 1
The appropriate revision date is printed on the cover of each volume.
LEGAL STATUS
The contents of the Federal Register are required to be judicially noticed (44
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vi
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OLIVER A. POTTS,
Director,
Office of the Federal Register
July 1, 2021.
vii
THIS TITLE
Title 40—PROTECTION OF ENVIRONMENT is composed of thirty-seven volumes.

The parts in these volumes are arranged in the following order: Parts 1–49, parts
50–51, part 52 (52.01–52.1018), part 52 (52.1019–52.2019), part 52 (52.2020–end of part
52), parts 53–59, part 60 (60.1–60.499), part 60 (60.500–end of part 60, sections), part
60 (Appendices), parts 61–62, part 63 (63.1–63.599), part 63 (63.600–63.1199), part 63
(63.1200–63.1439), part 63 (63.1440–63.6175), part 63 (63.6580–63.8830), part 63 (63.8980–
end of part 63), parts 64–71, parts 72–79, part 80, part 81, parts 82–86, parts 87–
95, parts 96–99, parts 100–135, parts 136–149, parts 150–189, parts 190–259, parts 260–
265, parts 266–299, parts 300–399, parts 400–424, parts 425–699, parts 700–722, parts
723–789, parts 790–999, parts 1000–1059, and part 1060 to end. The contents of these
volumes represent all current regulations codified under this title of the CFR
as of July 1, 2021.
Chapter I—Environmental Protection Agency appears in all thirty-seven vol-

umes. OMB control numbers for title 40 appear in § 9.1 of this chapter.
Chapters IV–IX—Regulations issued by the Environmental Protection Agency

and Department of Justice, Council on Environmental Quality, Chemical Safety
and Hazard Investigation Board, Environmental Protection Agency and Depart-
ment of Defense; Uniform National Discharge Standards for Vessels of the Armed
Forces, Gulf Coast Ecosystem Restoration Council, and the Federal Permitting
Improvement Steering Council appear in volume thirty seven.
For this volume, Susannah C. Hurley was Chief Editor. The Code of Federal
Regulations publication program is under the direction of John Hyrum Martinez,
assisted by Stephen J. Frattini.
ix
Title 40—Protection of
Environment
(This book contains parts 190 to 259)
Part
CHAPTER I—Environmental Protection Agency (Continued) 190

CHAPTER I—ENVIRONMENTAL PROTECTION
AGENCY (CONTINUED)
EDITORIAL NOTE: Nomenclature changes to chapter I appear at 65 FR 47324, 47325, Aug. 2,

2000; 66 FR 34375, 34376, June 28, 2001.
SUBCHAPTER F—RADIATION PROTECTION PROGRAMS
Part Page
190 Environmental radiation protection standards for
nuclear power operations ..................................... 5
191 Environmental radiation protection standards for
management and disposal of spent nuclear fuel,
high-level and transuranic radioactive wastes ..... 6
192 Health and environmental protection standards for
uranium and thorium mill tailings ...................... 17
194 Criteria for the certification and re-certification of
the Waste Isolation Pilot Plant’s compliance
with the 40 CFR part 191 disposal regulations ...... 36
195 Radon proficiency programs ................................... 59
197 Public health and environmental radiation protec-
tion standards for Yucca Mountain, Nevada ........ 62
SUBCHAPTER G—NOISE ABATEMENT PROGRAMS
201 Noise emission standards for transportation equip-

ment; interstate rail carriers ............................... 71
202 Motor carriers engaged in interstate commerce ..... 84
203 Low-noise-emission products .................................. 86
204 Noise emission standards for construction equip-
ment ..................................................................... 89
205 Transportation equipment noise emission controls 106
209 Rules of practice governing proceedings under the
Noise Control Act of 1972 ...................................... 160
210 Prior notice of citizen suits .................................... 171
211 Product noise labeling ............................................ 173
SUBCHAPTER H—OCEAN DUMPING
220 General .................................................................... 190

221 Applications for ocean dumping permits under sec-

tion 102 of the Act ................................................ 193
40 CFR Ch. I (7–1–21 Edition)
Part Page
222 Action on ocean dumping permit applications
under section 102 of the Act ................................. 194
223 Contents of permits; revision, revocation or limita-
tion of ocean dumping permits under section
104(d) of the Act .................................................... 201
224 Records and reports required of ocean dumping
permittees under section 102 of the Act ............... 204
225 Corps of Engineers dredged material permits ......... 205
227 Criteria for the evaluation of permit applications
for ocean dumping of materials ........................... 206
228 Criteria for the management of disposal sites for
ocean dumping ..................................................... 217
229 General permits ....................................................... 254
230 Section 404(b)(1) guidelines for specification of dis-
posal sites for dredged or fill material ................. 257
231 Section 404(c) procedures ........................................ 309
232 404 Program definitions; exempt activities not re-
quiring 404 permits ............................................... 314
233 404 State program regulations ................................ 320
238 Degradable plastic ring carriers .............................. 342
SUBCHAPTER I—SOLID WASTES
239 Requirements for State permit program deter-

mination of adequacy ........................................... 344
240 Guidelines for the thermal processing of solid
wastes ................................................................... 352
241 Solid wastes used as fuels or ingredients in com-
bustion units ........................................................ 360
243 Guidelines for the storage and collection of resi-
dential, commercial, and institutional solid
waste .................................................................... 367
246 Source separation for materials recovery guide-
lines ...................................................................... 375
247 Comprehensive procurement guideline for products
containing recovered materials ........................... 383
254 Prior notice of citizen suits .................................... 391
255 Identification of regions and agencies for solid
waste management ............................................... 393
256 Guidelines for development and implementation of
State solid waste management plans ................... 399
257 Criteria for classification of solid waste disposal
facilities and practices ......................................... 411
258 Criteria for municipal solid waste landfills ............ 508
259 [Reserved]
SUBCHAPTER F—RADIATION PROTECTION PROGRAMS
PART 190—ENVIRONMENTAL RADI- and by-product materials from the

ATION PROTECTION STANDARDS cycle.
FOR NUCLEAR POWER OPER- (c) General environment means the
ATIONS total terrestrial, atmospheric and
aquatic environments outside sites
Subpart A—General Provisions upon which any operation which is part
of a nuclear fuel cycle is conducted.
Sec. (d) Site means the area contained
190.01 Applicability. within the boundary of a location
190.02 Definitions. under the control of persons possessing
or using radioactive material on which
Subpart B—Environmental Standards for is conducted one or more operations
the Uranium Fuel Cycle
covered by this part.
190.10 Standards for normal operations. (e) Radiation means any or all of the
190.11 Variances for unusual operations. following: Alpha, beta, gamma, or X-
190.12 Effective date. rays; neutrons; and high-energy
AUTHORITY: Atomic Energy Act of 1954, as electrons, protons, or other atomic
amended; Reorganization Plan No. 3, of 1970. particles; but not sound or radio waves,
nor visible, infrared, or ultraviolet
SOURCE: 42 FR 2860, Jan. 13, 1977, unless
otherwise noted. light.
(f) Radioactive material means any
material which spontaneously emits
Subpart A—General Provisions radiation.
§ 190.01 Applicability. (g) Curie (Ci) means that quantity of
radioactive material producing 37 bil-
The provisions of this part apply to
lion nuclear transformations per sec-
radiation doses received by members of
ond. (One millicurie (mCi) = 0.001 Ci.)
the public in the general environment
and to radioactive materials intro- (h) Dose equivalent means the product
duced into the general environment as of absorbed dose and appropriate fac-
the result of operations which are part tors to account for differences in bio-
of a nuclear fuel cycle. logical effectiveness due to the quality
of radiation and its spatial distribution
§ 190.02 Definitions. in the body. The unit of dose equiva-
lent is the ‘‘rem.’’ (One millirem
(a) Nuclear fuel cycle means the oper-
(mrem)= 0.001 rem.)
ations defined to be associated with the
production of electrical power for pub- (i) Organ means any human organ ex-
lic use by any fuel cycle through utili- clusive of the dermis, the epidermis, or
zation of nuclear energy. the cornea.
(b) Uranium fuel cycle means the oper- (j) Gigawatt-year refers to the quan-
ations of milling of uranium ore, chem- tity of electrical energy produced at
ical conversion of uranium, isotopic the busbar of a generating station. A
enrichment of uranium, fabrication of gigawatt is equal to one billion watts.
uranium fuel, generation of electricity A gigawatt-year is equivalent to the
by a light-water-cooled nuclear power amount of energy output represented
plant using uranium fuel, and reproc- by an average electric power level of
essing of spent uranium fuel, to the ex- one gigawatt sustained for one year.
tent that these directly support the (k) Member of the public means any in-
production of electrical power for pub- dividual that can receive a radiation
lic use utilizing nuclear energy, but ex- dose in the general environment,
cludes mining operations, operations at whether he may or may not also be ex-
waste disposal sites, transportation of posed to radiation in an occupation as-
any radioactive material in support of sociated with a nuclear fuel cycle.

these operations, and the reuse of However, an individual is not consid-
recovered non-uranium special nuclear ered a member of the public during any
§ 190.10 40 CFR Ch. I (7–1–21 Edition)
period in which he is engaged in car- ance, and the schedule for achieving
rying out any operation which is part conformance with the standards.
of a nuclear fuel cycle.
(l) Regulatory agency means the gov- § 190.12 Effective date.
ernment agency responsible for issuing (a) The standards in § 190.10(a) shall
regulations governing the use of be effective December 1, 1979, except
sources of radiation or radioactive ma- that for doses arising from operations
terials or emissions therefrom and car- associated with the milling of uranium
rying out inspection and enforcement ore the effective date shall be Decem-
activities to assure compliance with ber 1, 1980.
such regulations. (b) The standards in § 190.10(b) shall
be effective December 1, 1979, except
Subpart B—Environmental Stand- that the standards for krypton-85 and
ards for the Uranium Fuel iodine-129 shall be effective January 1,
Cycle 1983, for any such radioactive materials
generated by the fission process after
§ 190.10 Standards for normal oper- these dates.
ations.
Operations covered by this subpart PART 191—ENVIRONMENTAL RADI-
shall be conducted in such a manner as ATION PROTECTION STANDARDS
to provide reasonable assurance that: FOR MANAGEMENT AND DIS-
(a) The annual dose equivalent does POSAL OF SPENT NUCLEAR FUEL,
not exceed 25 millirems to the whole
body, 75 millirems to the thyroid, and
HIGH-LEVEL AND TRANSURANIC
25 millirems to any other organ of any RADIOACTIVE WASTES
member of the public as the result of
exposures to planned discharges of ra- Subpart A—Environmental Standards for
dioactive materials, radon and its Management and Storage
daughters excepted, to the general en- Sec.
vironment from uranium fuel cycle op- 191.01 Applicability.
erations and to radiation from these 191.02 Definitions.
operations. 191.03 Standards.
(b) The total quantity of radioactive 191.04 Alternative standards.
191.05 Effective date.
materials entering the general environ-
ment from the entire uranium fuel Subpart B—Environmental Standards for
cycle, per gigawatt-year of electrical Disposal
energy produced by the fuel cycle, con-
tains less than 50,000 curies of krypton- 191.11 Applicability.
85, 5 millicuries of iodine-129, and 0.5 191.12 Definitions.
191.13 Containment requirements.
millicuries combined of plutonium-239
191.14 Assurance requirements.
and other alpha-emitting transuranic 191.15 Individual protection requirements.
radionuclides with half-lives greater 191.16 Alternative provisions for disposal.
than one year. 191.17 Effective date.
§ 190.11 Variances for unusual oper- Subpart C—Environmental Standards for

ations. Ground-Water Protection
The standards specified in § 190.10 191.21 Applicability.
may be exceeded if: 191.22 Definitions.
(a) The regulatory agency has grant- 191.23 General provisions.
ed a variance based upon its determina- 191.24 Disposal standards.
tion that a temporary and unusual op- 191.25 Compliance with other Federal regu-
erating condition exists and continued lations.
operation is in the public interest, and 191.26 Alternative provisions.
(b) Information is promptly made a
APPENDIX A TO PART 191—TABLE FOR SUB-
matter of public record delineating the
PART B
nature of unusual operating conditions, APPENDIX B TO PART 191—CALCULATION OF
the degree to which this operation is ANNUAL COMMITTED EFFECTIVE DOSE

expected to result in levels in excess of APPENDIX C TO PART 191—GUIDANCE FOR IM-
the standards, the basis of the vari- PLEMENTATION OF SUBPART B
Environmental Protection Agency § 191.02
AUTHORITY: The Atomic Energy Act of 1954, (g) Spent nuclear fuel means fuel that
as amended, 42 U.S.C. 2011–2296; Reorganiza- has been withdrawn from a nuclear re-
tion Plan No. 3 of 1970, 5 U.S.C. app. 1; the actor following irradiation, the con-
Nuclear Waste Policy Act of 1982, as amend-
ed, 42 U.S.C. 10101–10270; and the Waste Isola-
stituent elements of which have not
tion Pilot Plant Land Withdrawal Act, Pub. been separated by reprocessing.
L. 102–579, 106 Stat. 4777. (h) High-level radioactive waste, as
used in this part, means high-level ra-
SOURCE: 50 FR 38084, Sept. 19, 1985, unless
otherwise noted. dioactive waste as defined in the Nu-
clear Waste Policy Act of 1982 (Pub. L.
97–425).
Subpart A—Environmental Stand- (i) Transuranic radioactive waste, as
ards for Management and used in this part, means waste con-
Storage taining more than 100 nanocuries of
alpha-emitting transuranic isotopes,
§ 191.01 Applicability. with half-lives greater than twenty
This subpart applies to: years, per gram of waste, except for: (1)
(a) Radiation doses received by mem- High-level radioactive wastes; (2)
bers of the public as a result of the wastes that the Department has deter-
management (except for transpor- mined, with the concurrence of the Ad-
tation) and storage of spent nuclear ministrator, do not need the degree of
fuel or high-level or transuranic radio- isolation required by this part; or (3)
active wastes at any facility regulated wastes that the Commission has ap-
by the Nuclear Regulatory Commission proved for disposal on a case-by-case
or by Agreement States, to the extent basis in accordance with 10 CFR Part
that such management and storage op- 61.
erations are not subject to the provi- (j) Radioactive waste, as used in this
sions of part 190 of title 40; and part, means the high-level and trans-
(b) Radiation doses received by mem- uranic radioactive waste covered by
bers of the public as a result of the this part.
management and storage of spent nu- (k) Storage means retention of spent
clear fuel or high-level or transuranic nuclear fuel or radioactive wastes with
wastes at any disposal facility that is the intent and capability to readily re-
operated by the Department of Energy trieve such fuel or waste for subse-
and that is not regulated by the Com- quent use, processing, or disposal.
mission or by Agreement States. (l) Disposal means permanent isola-
tion of spent nuclear fuel or radio-
§ 191.02 Definitions.
active waste from the accessible envi-
Unless otherwise indicated in this ronment with no intent of recovery,
subpart, all terms shall have the same whether or not such isolation permits
meaning as in Subpart A of Part 190. the recovery of such fuel or waste. For
(a) Agency means the Environmental example, disposal of waste in a mined
Protection Agency. geologic repository occurs when all of
(b) Administrator means the Adminis- the shafts to the repository are
trator of the Environmental Protection backfilled and sealed.
Agency. (m) Management means any activity,
(c) Commission means the Nuclear operation, or process (except for trans-
Regulatory Commission. portation) conducted to prepare spent
(d) Department means the Department nuclear fuel or radioactive waste for
of Energy. storage or disposal, or the activities as-
(e) NWPA means the Nuclear Waste sociated with placing such fuel or
Policy Act of 1982 (Pub. L. 97–425). waste in a disposal system.
(f) Agreement State means any State (n) Site means an area contained
with which the Commission or the within the boundary of a location
Atomic Energy Commission has en- under the effective control of persons
tered into an effective agreement possessing or using spent nuclear fuel
under subsection 274b of the Atomic or radioactive waste that are involved
Energy Act of 1954, as amended (68 in any activity, operation, or process
Stat. 919). covered by this subpart.
§ 191.03 40 CFR Ch. I (7–1–21 Edition)
(o) General environment means the facilities that are not regulated by the
total terrestrial, atmospheric, and Commission or Agreement States if,
aquatic environments outside sites upon review of an application for such
within which any activity, operation, alternative standards:
or process associated with the manage- (1) The Administrator determines
ment and storage of spent nuclear fuel that such alternative standards will
or radioactive waste is conducted. prevent any member of the public from
(p) Member of the public means any in- receiving a continuous exposure of
dividual except during the time when more than 100 millirems per year dose
that individual is a worker engaged in equivalent and an infrequent exposure
any activity, operation, or process that of more than 500 millirems dose equiva-
is covered by the Atomic Energy Act of lent in a year from all sources, exclud-
1954, as amended. ing natural background and medical
(q) Critical organ means the most ex- procedures; and
posed human organ or tissue exclusive (2) The Administrator promptly
of the integumentary system (skin) makes a matter of public record the de-
and the cornea. gree to which continued operation of
the facility is expected to result in lev-
§ 191.03 Standards. els in excess of the standards specified
(a) Management and storage of spent in § 191.03(b).
nuclear fuel or high-level or trans- (b) An application for alternative
uranic radioactive wastes at all facili- standards shall be submitted as soon as
ties regulated by the Commission or by possible after the Department deter-
Agreement States shall be conducted mines that continued operation of a fa-
in such a manner as to provide reason- cility will exceed the levels specified in
able assurance that the combined an- § 191.03(b) and shall include all informa-
nual dose equivalent to any member of tion necessary for the Administrator to
the public in the general environment make the determinations called for in
resulting from: (1) Discharges of radio- § 191.04(a).
active material and direct radiation (c) Requests for alternative standards
from such management and storage shall be submitted to the Adminis-
and (2) all operations covered by Part trator, U.S. Environmental Protection
190; shall not exceed 25 millirems to the Agency, 1200 Pennsylvania Ave., NW.,
whole body, 75 millirems to the thy- Washington, DC 20460.
roid, and 25 millirems to any other
[50 FR 38084, Sept. 19, 1985, as amended at 65
critical organ. FR 47325, Aug. 2, 2000]
(b) Management and storage of spent
nuclear fuel or high-level or trans- § 191.05 Effective date.
uranic radioactive wastes at all facili-
ties for the disposal of such fuel or The standards in this subpart shall be
waste that are operated by the Depart- effective on November 18, 1985.
ment and that are not regulated by the
Commission or Agreement States shall Subpart B—Environmental
be conducted in such a manner as to Standards for Disposal
provide reasonable assurance that the
combined annual dose equivalent to § 191.11 Applicability.
any member of the public in the gen- (a) This subpart applies to:
eral environment resulting from dis- (1) Radioactive materials released
charges of radioactive material and di- into the accessible environment as a
rect radiation from such management result of the disposal of spent nuclear
and storage shall not exceed 25 fuel or high-level or transuranic radio-
millirems to the whole body and 75 active wastes;
millirems to any critical organ. (2) Radiation doses received by mem-
bers of the public as a result of such
§ 191.04 Alternative standards. disposal; and
(a) The Administrator may issue al- (3) Radioactive contamination of cer-
ternative standards from those stand- tain sources of ground water in the vi-
ards established in § 191.03(b) for waste cinity of disposal systems for such fuel
management and storage activities at or wastes.
(b) This subpart does not apply to: no more than 100 square kilometers
(1) Disposal directly into the oceans and extends horizontally no more than
or ocean sediments; five kilometers in any direction from
(2) Wastes disposed of before Novem- the outer boundary of the original lo-
ber 18, 1985; and cation of the radioactive wastes in a
(3) The characterization, licensing, disposal system; and (2) the subsurface
construction, operation, or closure of underlying such a surface location.
any site required to be characterized Disposal system means any combina-
under section 113(a) of Public Law 97– tion of engineered and natural barriers
425, 96 Stat. 2201. that isolate spent nuclear fuel or radio-
[50 FR 38084, Sept. 19, 1985, as amended at 58 active waste after disposal.
FR 66414, Dec. 20, 1993] Dose equivalent means the product of
absorbed dose and appropriate factors
to account for differences in biological
Unless otherwise indicated in this effectiveness due to the quality of radi-
subpart, all terms shall have the same ation and its spatial distribution in the
meaning as in subpart A of this part. body; the unit of dose equivalent is the
Accessible environment means: (1) The ‘‘rem’’ (‘‘sievert’’ in SI units).
atmosphere; (2) land surfaces; (3) sur-
Effective dose means the sum over
face waters; (4) oceans; and (5) all of
specified tissues of the products of the
the lithosphere that is beyond the con-
dose equivalent received following an
trolled area.
Active institutional control means: (1) exposure of, or an intake of radio-
Controlling access to a disposal site by nuclides into, specified tissues of the
any means other than passive institu- body, multiplied by appropriate
tional controls; (2) performing mainte- weighting factors. This allows the var-
nance operations or remedial actions ious tissue-specific health risks to be
at a site, (3) controlling or cleaning up summed into an overall health risk.
releases from a site, or (4) monitoring The method used to calculate effective
parameters related to disposal system dose is described in appendix B of this
performance. part.
Annual committed effective dose means Ground water means water below the
the committed effective dose resulting land surface in a zone of saturation.
from one-year intake of radionuclides Heavy metal means all uranium, plu-
released plus the annual effective dose tonium, or thorium placed into a nu-
caused by direct radiation from facili- clear reactor.
ties or activities subject to subparts B Implementing agency means:
and C of this part. (1) The Commission for facilities li-
Aquifer means an underground geo- censed by the Commission;
logical formation, group of formations, (2) The Agency for those implementa-
or part of a formation that is capable tion responsibilities for the Waste Iso-
of yielding a significant amount of lation Pilot Plant, under this part,
water to a well or spring. given to the Agency by the Waste Iso-
Barrier means any material or struc-
lation Pilot Plant Land Withdrawal
ture that prevents or substantially
Act (Pub. L. 102–579, 106 Stat. 4777)
delays movement of water or radio-
which, for the purposes of this part,
nuclides toward the accessible environ-
are:
ment. For example, a barrier may be a
geologic structure, a canister, a waste (i) Determinations by the Agency
form with physical and chemical char- that the Waste Isolation Pilot Plant is
acteristics that significantly decrease in compliance with subpart A of this
the mobility of radionuclides, or a ma- part;
terial placed over and around waste, (ii) Issuance of criteria for the cer-
provided that the material or structure tifications of compliance with subparts
substantially delays movement of B and C of this part of the Waste Isola-
water or radionuclides. tion Pilot Plant’s compliance with sub-
Controlled area means: (1) A surface parts B and C of this part;

location, to be identified by passive in- (iii) Certifications of compliance
stitutional controls, that encompasses with subparts B and C of this part of
§ 191.13 40 CFR Ch. I (7–1–21 Edition)
the Waste Isolation Pilot Plant’s com- Atomic Energy Act of 1954, as amend-
pliance with subparts B and C of this ed.
part; SI unit means a unit of measure in
(iv) If the initial certification is the International System of Units.
made, periodic recertification of the Sievert is the SI unit of effective dose
Waste Isolation Pilot Plant’s continued and is equal to 100 rem or one joule per
compliance with subparts B and C of kilogram. The abbreviation is ‘‘Sv.’’
this part; Undisturbed performance means the
(v) Review and comment on perform- predicted behavior of a disposal sys-
ance assessment reports of the Waste tem, including consideration of the un-
Isolation Pilot Plant; and certainties in predicted behavior, if the
(vi) Concurrence by the Agency with disposal system is not disrupted by
the Department’s determination under human intrusion or the occurrence of
§ 191.02(i) that certain wastes do not unlikely natural events.
need the degree of isolation required by Waste, as used in this subpart, means
subparts B and C of this part; and any spent nuclear fuel or radioactive
(3) The Department of Energy for any waste isolated in a disposal system.
other disposal facility and all other im- Waste form means the materials com-
plementation responsibilities for the prising the radioactive components of
Waste Isolation Pilot Plant, under this waste and any encapsulating or stabi-
part, not given to the Agency. lizing matrix.
International System of Units is the
version of the metric system which has [50 FR 38084, Sept. 19, 1985, as amended at 58
been established by the International FR 66414, Dec. 20, 1993]
Bureau of Weights and Measures and is
§ 191.13 Containment requirements.
administered in the United States by
the National Institute of Standards (a) Disposal systems for spent nu-
and Technology. The abbreviation for clear fuel or high-level or transuranic
this system is ‘‘SI.’’ radioactive wastes shall be designed to
Lithosphere means the solid part of provide a reasonable expectation, based
the Earth below the surface, including upon performance assessments, that
any ground water contained within it. the cumulative releases of radio-
Passive institutional control means: (1) nuclides to the accessible environment
Permanent markers placed at a dis- for 10,000 years after disposal from all
posal site, (2) public records and ar- significant processes and events that
chives, (3) government ownership and may affect the disposal system shall:
regulations regarding land or resource (1) Have a likelihood of less than one
use, and (4) other methods of pre- chance in 10 of exceeding the quantities
serving knowledge about the location, calculated according to Table 1 (appen-
design, and contents of a disposal sys- dix A); and
tem. (2) Have a likelihood of less than one
Performance assessment means an chance in 1,000 of exceeding ten times
analysis that: (1) Identifies the proc- the quantities calculated according to
esses and events that might affect the Table 1 (appendix A).
disposal system; (2) examines the ef- (b) Performance assessments need
fects of these processes and events on not provide complete assurance that
the performance of the disposal sys- the requirements of § 191.13(a) will be
tem; and (3) estimates the cumulative met. Because of the long time period
releases of radionuclides, considering involved and the nature of the events
the associated uncertainties, caused by and processes of interest, there will in-
all significant processes and events. evitably be substantial uncertainties in
These estimates shall be incorporated projecting disposal system perform-
into an overall probability distribution ance. Proof of the future performance
of cumulative release to the extent of a disposal system is not to be had in
practicable. the ordinary sense of the word in situa-
Radioactive material means matter tions that deal with much shorter time
composed of or containing radio- frames. Instead, what is required is a

nuclides, with radiological half-lives reasonable expectation, on the basis of
greater than 20 years, subject to the the record before the implementing
10
agency, that compliance with § 191.13 ing water available for substantial pop-
(a) will be achieved. ulations or that are vital to the preser-
vation of unique and sensitive eco-
§ 191.14 Assurance requirements. systems. Such places shall not be used
To provide the confidence needed for for disposal of the wastes covered by
long-term compliance with the require- this part unless the favorable char-
ments of § 191.13, disposal of spent nu- acteristics of such places compensate
clear fuel or high-level or transuranic for their greater likelihood of being
wastes shall be conducted in accord- disturbed in the future.
ance with the following provisions, ex- (f) Disposal systems shall be selected
cept that these provisions do not apply so that removal of most of the wastes
to facilities regulated by the Commis- is not precluded for a reasonable period
sion (see 10 CFR Part 60 for comparable of time after disposal.
provisions applicable to facilities regu-
lated by the Commission): § 191.15 Individual protection require-
(a) Active institutional controls over ments.
disposal sites should be maintained for
(a) Disposal systems for waste and
as long a period of time as is prac-
any associated radioactive material
ticable after disposal; however, per-
shall be designed to provide a reason-
formance assessments that assess iso-
able expectation that, for 10,000 years
lation of the wastes from the accessible
environment shall not consider any after disposal, undisturbed perform-
contributions from active institutional ance of the disposal system shall not
controls for more than 100 years after cause the annual committed effective
disposal. dose, received through all potential
(b) Disposal systems shall be mon- pathways from the disposal system, to
itored after disposal to detect substan- any member of the public in the acces-
tial and detrimental deviations from sible environment, to exceed 15
expected performance. This monitoring millirems (150 microsieverts).
shall be done with techniques that do (b) Annual committed effective doses
not jeopardize the isolation of the shall be calculated in accordance with
wastes and shall be conducted until appendix B of this part.
there are no significant concerns to be (c) Compliance assessments need not
addressed by further monitoring. provide complete assurance that the
(c) Disposal sites shall be designated requirements of paragraph (a) of this
by the most permanent markers, section will be met. Because of the long
records, and other passive institutional time period involved and the nature of
controls practicable to indicate the the processes and events of interest,
dangers of the wastes and their loca- there will inevitably be substantial un-
tion. certainties in projecting disposal sys-
(d) Disposal systems shall use dif- tem performance. Proof of the future
ferent types of barriers to isolate the performance of a disposal system is not
wastes from the accessible environ- to be had in the ordinary sense of the
ment. Both engineered and natural bar- word in situations that deal with much
riers shall be included. shorter time frames. Instead, what is
(e) Places where there has been min- required is a reasonable expectation,
ing for resources, or where there is a on the basis of the record before the
reasonable expectation of exploration implementing agency, that compliance
for scarce or easily accessible re- with paragraph (a) of this section will
sources, or where there is a significant be achieved.
concentration of any material that is (d) Compliance with the provisions in
not widely available from other this section does not negate the neces-
sources, should be avoided in selecting sity to comply with any other applica-
disposal sites. Resources to be consid- ble Federal regulations or require-
ered shall include minerals, petroleum ments.
or natural gas, valuable geologic for-
(e) The standards in this section shall
mations, and ground waters that are

be effective on January 19, 1994.
either irreplaceable because there is no
reasonable alternative source of drink- [58 FR 66414, Dec. 20, 1993]
11
§ 191.16 40 CFR Ch. I (7–1–21 Edition)
§ 191.16 Alternative provisions for dis- any site required to be characterized

posal. under section 113(a) of Public Law 97–
The Administrator may, by rule, sub- 425, 96 Stat. 2201.
stitute for any of the provisions of sub-
part B alternative provisions chosen
after: Unless otherwise indicated in this
(a) The alternative provisions have subpart, all terms have the same mean-
been proposed for public comment in ing as in subparts A and B of this part.
the FEDERAL REGISTER together with Public water system means a system
information describing the costs, risks, for the provision to the public of piped
and benefits of disposal in accordance water for human consumption, if such
with the alternative provisions and the system has at least fifteen service con-
reasons why compliance with the exist- nections or regularly serves at least
ing provisions of Subpart B appears in- twenty-five individuals. Such term in-
appropriate; cludes:
(b) A public comment period of at (1) Any collection, treatment, stor-
least 90 days has been completed, dur- age, and distribution facilities under
ing which an opportunity for public control of the operator of such system
hearings in affected areas of the coun- and used primarily in connection with
try has been provided; and such system; and
(c) The public comments received (2) Any collection or pretreatment
have been fully considered in devel- storage facilities not under such con-
oping the final version of such alter- trol which are used primarily in con-
native provisions. nection with such system.
Total dissolved solids means the total
[50 FR 38084, Sept. 19, 1985. Redesignated at
58 FR 66414, Dec. 20, 1993] dissolved (filterable) solids in water as
determined by use of the method speci-
§ 191.17 Effective date. fied in 40 CFR part 136.
The standards in this subpart shall be Underground source of drinking water
effective on November 18, 1985. means an aquifer or its portion which:
(1) Supplies any public water system;
[50 FR 38084, Sept. 19, 1985; 50 FR 40003, Oct. or
1, 1985. Redesignated at 58 FR 66414, Dec. 20, (2) Contains a sufficient quantity of
1993] ground water to supply a public water
system; and
Subpart C—Environmental Stand- (i) Currently supplies drinking water
ards for Ground-Water Protec- for human consumption; or
tion (ii) Contains fewer than 10,000 milli-
grams of total dissolved solids per
SOURCE: 58 FR 66415, Dec. 20, 1993, unless liter.
otherwise noted.
§ 191.23 General provisions.
§ 191.21 Applicability. (a) Determination of compliance with
(a) This subpart applies to: this subpart shall be based upon under-
(1) Radiation doses received by mem- ground sources of drinking water which
bers of the public as a result of activi- have been identified on the date the
ties subject to subpart B of this part; implementing agency determines com-
and pliance with subpart C of this part.
(2) Radioactive contamination of un- (b) [Reserved]
derground sources of drinking water in
the accessible environment as a result § 191.24 Disposal standards.
of such activities. (a) Disposal systems.
(b) This subpart does not apply to: (1) General. Disposal systems for
(1) Disposal directly into the oceans waste and any associated radioactive
or ocean sediments; material shall be designed to provide a
(2) Wastes disposed of before the ef- reasonable expectation that 10,000
fective date of this subpart; and years of undisturbed performance after

(3) The characterization, licensing, disposal shall not cause the levels of
construction, operation, or closure of radioactivity in any underground
12
Environmental Protection Agency Pt. 191, App. A
source of drinking water, in the acces- § 191.27 Effective date.

sible environment, to exceed the limits The standards in this subpart shall be
specified in 40 CFR part 141 as they effective on January 19, 1994.
exist on January 19, 1994.
(2) Disposal systems above or within a
formation which within one-quarter (1⁄4)
mile contains an underground source of APPENDIX A TO PART 191—TABLE FOR
drinking water. [Reserved] SUBPART B
(b) Compliance assessments need not
provide complete assurance that the TABLE 1—RELEASE LIMITS FOR CONTAINMENT
requirements of paragraph (a) of this REQUIREMENTS
section will be met. Because of the long [Cumulative releases to the accessible environment for 10,000
years after disposal]
time period involved and the nature of
the processes and events of interest, Release
there will inevitably be substantial un- limit per
1,000
certainties in projecting disposal sys- MTHM or
tem performance. Proof of the future Radionuclide other unit
of waste
performance of a disposal system is not (see
to be had in the ordinary sense of the notes)
(curies)
word in situations that deal with much
shorter time frames. Instead, what is Americium-241 or -243 .......................................... 100
Carbon-14 .............................................................. 100
required is a reasonable expectation, Cesium-135 or -137 ............................................... 1,000
on the basis of the record before the Iodine-129 .............................................................. 100
implementing agency, that compliance Neptunium-237 ...................................................... 100
with paragraph (a) of this section will Plutonium-238, -239, -240, or -242 ....................... 100
Radium-226 ........................................................... 100
be achieved. Strontium-90 .......................................................... 1,000
Technetium-99 ....................................................... 10,000
§ 191.25 Compliance with other Fed- Thorium-230 or -232 .............................................. 10
eral regulations. Tin-126 ................................................................... 1,000
Uranium-233, -234, -235, -236, or -238 ................ 100
Compliance with the provisions in Any other alpha-emitting radionuclide with a half-
this subpart does not negate the neces- life greater than 20 years ................................... 100
Any other radionuclide with a half-life greater
sity to comply with any other applica- than 20 years that does not emit alpha par-
ble Federal regulations or require- ticles ................................................................... 1,000
ments.
APPLICATION OF TABLE 1
§ 191.26 Alternative provisions.
NOTE 1: Units of Waste. The Release Limits
The Administrator may, by rule, sub- in Table 1 apply to the amount of wastes in
stitute for any of the provisions of this any one of the following:
subpart alternative provisions chosen (a) An amount of spent nuclear fuel con-
taining 1,000 metric tons of heavy metal
after:
(MTHM) exposed to a burnup between 25,000
(a) The alternative provisions have megawatt-days per metric ton of heavy
been proposed for public comment in metal (MWd/MTHM) and 40,000 MWd/MTHM;
the FEDERAL REGISTER together with (b) The high-level radioactive wastes gen-
information describing the costs, risks, erated from reprocessing each 1,000 MTHM
and benefits of disposal in accordance exposed to a burnup between 25,000 MWd/
with the alternative provisions and the MTHM and 40,000 MWd/MTHM;
(c) Each 100,000,000 curies of gamma or
reasons why compliance with the exist-
beta-emitting radionuclides with half-lives
ing provisions of this subpart appears greater than 20 years but less than 100 years
inappropriate; (for use as discussed in Note 5 or with mate-
(b) A public comment period of at rials that are identified by the Commission
least 90 days has been completed, dur- as high-level radioactive waste in accordance
ing which an opportunity for public with part B of the definition of high-level
hearings in affected areas of the coun- waste in the NWPA);
try has been provided; and (d) Each 1,000,000 curies of other radio-
nuclides (i.e., gamma or beta-emitters with
(c) The public comments received half-lives greater than 100 years or any
have been fully considered in devel- alpha-emitters with half-lives greater than
oping the final version of such alter- 20 years) (for use as discussed in Note 5 or
native provisions. with materials that are identified by the
13
Pt. 191, App. A 40 CFR Ch. I (7–1–21 Edition)
Commission as high-level radioactive waste
in accordance with part B of the definition of 60,000 MTHM
high-level waste in the NWPA); or = 10
(e) An amount of transuranic (TRU) wastes 6,000 MTHM
containing one million curies of alpha-emit- which is the same as:
ting transuranic radionuclides with half-
lives greater than 20 years. 60,000 MTHM (5,000 MWd/MTHM)
NOTE 2: Release Limits for Specific Disposal × = 10
Systems. To develop Release Limits for a par- 1,000 MTHM (30,000 MWd/MTHM)
ticular disposal system, the quantities in NOTE 4: Treatment of Fractionated High-
Table 1 shall be adjusted for the amount of Level Wastes. In some cases, a high-level
waste included in the disposal system com- waste stream from reprocessing spent nu-
pared to the various units of waste defined in clear fuel may have been (or will be) sepa-
Note 1. For example: rated into two or more high-level waste com-
(a) If a particular disposal system con- ponents destined for different disposal sys-
tained the high-level wastes from 50,000 tems. In such cases, the implementing agen-
MTHM, the Release Limits for that system cy may allocate the Release Limit multi-
would be the quantities in Table 1 multiplied plier (based upon the original MTHM and the
by 50 (50,000 MTHM divided by 1,000 MTHM). average fuel burnup of the high-level waste
(b) If a particular disposal system con- stream) among the various disposal systems
tained three million curies of alpha-emitting as it chooses, provided that the total Release
transuranic wastes, the Release Limits for Limit multiplier used for that waste stream
that system would be the quantities in Table at all of its disposal systems may not exceed
1 multiplied by three (three million curies the Release Limit multiplier that would be
divided by one million curies). used if the entire waste stream were disposed
(c) If a particular disposal system con- of in one disposal system.
tained both the high-level wastes from 50,000 NOTE 5: Treatment of Wastes with Poorly
MTHM and 5 million curies of alpha-emit- Known Burnups or Original MTHM. In some
ting transuranic wastes, the Release Limits cases, the records associated with particular
for that system would be the quantities in high-level waste streams may not be ade-
Table 1 multiplied by 55: quate to accurately determine the original
metric tons of heavy metal in the reactor
50,000 MTHM 5,000,000 curiesTRU fuel that created the waste, or to determine
+ = 55 the average burnup that the fuel was exposed
1,000 MTHM 1,000,000 curiesTRU to. If the uncertainties are such that the
NOTE 3: Adjustments for Reactor Fuels with original amount of heavy metal or the aver-
Different Burnup. For disposal systems con- age fuel burnup for particular high-level
taining reactor fuels (or the high-level waste streams cannot be quantified, the
wastes from reactor fuels) exposed to an av- units of waste derived from (a) and (b) of
erage burnup of less than 25,000 MWd/MTHM Note 1 shall no longer be used. Instead, the
or greater than 40,000 MWd/MTHM, the units units of waste defined in (c) and (d) of Note
of waste defined in (a) and (b) of Note 1 shall 1 shall be used for such high-level waste
be adjusted. The unit shall be multiplied by streams. If the uncertainties in such infor-
the ratio of 30,000 MWd/MTHM divided by the mation allow a range of values to be associ-
fuel’s actual average burnup, except that a ated with the original amount of heavy
value of 5,000 MWd/MTHM may be used when metal or the average fuel burnup, then the
the average fuel burnup is below 5,000 MWd/ calculations described in previous Notes will
MTHM and a value of 100,000 MWd/MTHM be conducted using the values that result in
shall be used when the average fuel burnup is the smallest Release Limits, except that the
above 100,000 MWd/MTHM. This adjusted unit Release Limits need not be smaller than
of waste shall then be used in determining those that would be calculated using the
the Release Limits for the disposal system. units of waste defined in (c) and (d) of Note ec11no91.003</MATH>
For example, if a particular disposal sys- 1.
tem contained only high-level wastes with NOTE 6: Uses of Release Limits to Determine
an average burnup of 3,000 MWd/MTHM, the Compliance with § 191.13 Once release limits
unit of waste for that disposal system would for a particular disposal system have been
be: determined in accordance with Notes 1
through 5, these release limits shall be used
ec11no91.002</MATH>
(30,000) to determine compliance with the require-

1,000 MTHM × = 6,000 MTHM ments of § 191.13 as follows. In cases where a
(5,000) mixture of radionuclides is projected to be
If that disposal system contained the high- released to the accessible environment, the
level wastes from 60,000 MTHM (with an av- limiting values shall be determined as fol-
erage burnup of 3,000 MWd/MTHM), then the lows: For each radionuclide in the mixture,
ec11no91.000</MATH> ec11no91.001</MATH>
Release Limits for that system would be the determine the ratio between the cumulative
quantities in Table 1 multiplied by ten: release quantity projected over 10,000 years
14
Environmental Protection Agency Pt. 191, App. B
and the limit for that radionuclide as deter- various tissues of the body, but in assessing
mined from Table 1 and Notes 1 through 5. health detriment the total risk is required.
The sum of such ratios for all the radio- This is taken into account using the tissue
nuclides in the mixture may not exceed one weighting factors, wT in Table B.2, which
with regard to § 191.13(a)(1) and may not ex- represent the proportion of the stochastic
ceed ten with regard to § 191.13(a)(2). risk resulting from irradiation of the tissue
For example, if radionuclides A, B, and C or organ to the total risk when the whole
are projected to be released in amounts Qa, body is irradiated uniformly and HT is the
Qb, and Qc, and if the applicable Release Lim- equivalent dose in the tissue or organ, T, in
its are RLa, RLb, and RLc, then the cumu- the equation:
lative releases over 10,000 years shall be lim-
ited so that the following relationship exists: E = ∑ wT ⋅ HT
Qa Q Q
+ b + c ≤1 TABLE B.2—TISSUE WEIGHTING FACTORS,
RL a RL b RL c WT 1
[50 FR 38084, Sept. 19, 1985, as amended at 58 Tissue or organ wT value

FR 66415, Dec. 20, 1993]
Gonads .......................................................... 0.25
APPENDIX B TO PART 191—CALCULATION Breast ............................................................ 0.15
OF ANNUAL COMMITTED EFFECTIVE DOSE Red bone marrow .......................................... 0.12
Lung ............................................................... 0.12
I. Equivalent Dose Thyroid ........................................................... 0.03
Bone surfaces ................................................ 0.03
The calculation of the committed effective Remainder ..................................................... 2 0.30
dose (CED) begins with the determination of
1 The values are considered to be appropriate for protection
the equivalent dose, HT, to a tissue or organ,
for individuals of both sexes and all ages.
T, listed in Table B.2 below by using the 2 For purposes of calculation, the remainder is comprised of
equation: the five tissues or organs not specifically listed in Table B.2
that receive the highest dose equivalents; a weighting factor
H T = ∑ D T,R ⋅ w R of 0.06 is applied to each of them, including the various sec-
tions of the gastrointestinal tract which are treated as sepa-
rate organs. This covers all tissues and organs except the
R hands and forearms, the feet and ankles, the skin and the
where DT, R is the absorbed dose in rads (one lens of the eye. The excepted tissues and organs should be
gray, an SI unit, equals 100 rads) averaged excluded from the computation of HE.
over the tissue or organ, T, due to radiation
III. Annual Committed Tissue or Organ
type, R, and wR is the radiation weighting
Equivalent Dose
factor which is given in Table B.1 below. The
unit of equivalent dose is the rem (sievert, in For internal irradiation from incorporated
SI units). radionuclides, the total absorbed dose will be
spread out in time, being gradually delivered
TABLE B.1—RADIATION WEIGHTING FACTORS, as the radionuclide decays. The time dis-
WR1 tribution of the absorbed dose rate will vary
with the radionuclide, its form, the mode of
wR intake and the tissue within which it is in-
Radiation type and energy range 2 value
corporated. To take account of this distribu-
Photons, all energies ................................................... 1 tion the quantity committed equivalent
Electrons and muons, all energies .............................. 1 dose, HT(t) where is the integration time in
Neutrons, energy <10 keV .......................................... 5 years following an intake over any par-
10 keV to 100 keV ................... 10 ticular year, is used and is the integral over
>100 keV to 2 MeV ................. 20
>2 MeV to 20 MeV .................. 10
time of the equivalent dose rate in a par-
>20 MeV .................................. 5 ticular tissue or organ that will be received
ER20de93.011</MATH>
Protons, other than recoil protons, >2 MeV ................ 5 by an individual following an intake of ra-
Alpha particles, fission fragments, heavy nuclei ......... 20 dioactive material into the body. The time
1 All values relate to the radiation incident on the body or, period, t, is taken as 50 years as an average
for internal sources, emitted from the source. time of exposure following intake:
2 See paragraph A14 in ICRP Publication 60 for the choice
of values for other radiation types and energies not in the t 0 + 50
table.
H T (τ ) = ∫
ER20de93.010</MATH>
H T ( t )dt
t0
II. Effective Dose
for a single intake of activity at time t0
The next step is the calculation of the ef-
where HT(t) is the relevant equivalent-dose
fective dose, E. The probability of occur-
rate in a tissue or organ at time t. For the
rence of a stochastic effect in a tissue or
purposes of this part, the previously men-

ec11no91.004</MATH> ER20de93.009</MATH>
organ is assumed to be proportional to the

tioned single intake may be considered to be
equivalent dose in the tissue or organ. The
an annual intake.
constant of proportionality differs for the
15
Pt. 191, App. C 40 CFR Ch. I (7–1–21 Edition)
IV. Annual Committed Effective Dose negligible contributions to the overall isola-
tion provided by the disposal system.
If the committed equivalent doses to the
individual tissues or organs resulting from Scope of Performance Assessments. Section
an annual intake are multiplied by the ap- 191.13 requires the implementing agencies to
propriate weighting factors, wT, and then evaluate compliance through performance
summed, the result will be the annual com- assessments as defined in § 191.12(q). The
mitted effective dose, E(t): Agency assumes that such performance as-
sessments need not consider categories of
E ( τ ) = ∑ w T ⋅ H T ( τ ). events or processes that are estimated to
have less than one chance in 10,000 of occur-
T ring over 10,000 years. Furthermore, the per-
formance assessments need not evaluate in
[58 FR 66415, Dec. 20, 1993] detail the releases from all events and proc-
esses estimated to have a greater likelihood
APPENDIX C TO PART 191—GUIDANCE FOR of occurrence. Some of these events and
IMPLEMENTATION OF SUBPART B processes may be omitted from the perform-
ance assessments if there is a reasonable ex-
[NOTE: The supplemental information in pectation that the remaining probability dis-
this appendix is not an integral part of 40 tribution of cumulative releases would not
CFR part 191. Therefore, the implementing be significantly changed by such omissions.
agencies are not bound to follow this guid-
Compliance with § 191.13. The Agency as-
ance. However, it is included because it de-
scribes the Agency’s assumptions regarding sumes that, whenever practicable, the imple-
the implementation of subpart B. This ap- menting agency will assemble all of the re-
pendix will appear in the Code of Federal sults of the performance assessments to de-
Regulations.] termine compliance with § 191.13 into a
‘‘complementary cumulative distribution
The Agency believes that the imple- function’’ that indicates the probability of
menting agencies must determine compli- exceeding various levels of cumulative re-
ance with §§ 191.13, 191.15, and 191.16 of sub- lease. When the uncertainties in parameters
part B by evaluating long-term predictions are considered in a performance assessment,
of disposal system performance. Determining the effects of the uncertainties considered
compliance with § 191.13 will also involve pre-
can be incorporated into a single such dis-
dicting the likelihood of events and proc-
tribution function for each disposal system
esses that may disturb the disposal system.
considered. The Agency assumes that a dis-
In making these various predictions, it will
posal system can be considered to be in com-
be appropriate for the implementing agen-
pliance with § 191.13 if this single distribution
cies to make use of rather complex computa-
function meets the requirements of
tional models, analytical theories, and prev-
§ 191.13(a).
alent expert judgment relevant to the nu-
merical predictions. Substantial uncertain- Compliance with §§ 191.15 and 191.16. When
ties are likely to be encountered in making the uncertainties in undisturbed perform-
these predictions. In fact, sole reliance on ance of a disposal system are considered, the
these numerical predictions to determine implementing agencies need not require that
compliance may not be appropriate; the im- a very large percentage of the range of esti-
plementing agencies may choose to supple- mated radiation exposures or radionuclide
ment such predictions with qualitative judg- concentrations fall below limits established
ments as well. Because the procedures for de- in §§ 191.15 and 191.16, respectively. The Agen-
termining compliance with subpart B have cy assumes that compliance can be deter-
not been formulated and tested yet, this ap- mined based upon ‘‘best estimate’’ pre-
pendix to the rule indicates the Agency’s as- dictions (e.g., the mean or the median of the
sumptions regarding certain issues that may appropriate distribution, whichever is high-
arise when implementing §§ 191.13, 191.15, and er).
191.16. Most of this guidance applies to any Institutional Controls. To comply with
type of disposal system for the wastes cov- § 191.14(a), the implementing agency will as-
ered by this rule. However, several sections sume that none of the active institutional
apply only to disposal in mined geologic re- controls prevent or reduce radionuclide re-
positories and would be inappropriate for leases for more than 100 years after disposal.
other types of disposal systems. However, the Federal Government is com-
Consideration of Total Disposal System. When mitted to retaining ownership of all disposal
predicting disposal system performance, the sites for spent nuclear fuel and high-level
Agency assumes that reasonable projections and transuranic radioactive wastes and will
of the protection expected from all of the en- establish appropriate markers and records,
gineered and natural barriers of a disposal consistent with § 191.14(c). The Agency as-
system will be considered. Portions of the sumes that, as long as such passive institu-
disposal system should not be disregarded, tional controls endure and are understood,
even if projected performance is uncertain, they: (1) Can be effective in deterring sys-
except for portions of the system that make tematic or persistent exploitation of these
16
ER20de93.012</MATH>
Environmental Protection Agency Pt. 192
disposal sites; and (2) can reduce the likeli- much water is readily available to be
hood of inadvertent, intermittent human in- pumped; and (2) creation of a ground water
trusion to a degree to be determined by the flow path with a permeability typical of a
implementing agency. However, the Agency borehole filled by the soil or gravel that
believes that passive institutional controls would normally settle into an open hole over
can never be assumed to eliminate the time—not the permeability of a carefully
chance of inadvertent and intermittent sealed borehole.
human intrusion into these disposal sites.
Consideration of Inadvertent Human Intru- [50 FR 38084, Sept. 19, 1985. Redesignated and
sion into Geologic Repositories. The most spec- amended at 58 FR 66415, Dec. 20, 1993]
ulative potential disruptions of a mined geo-
logic repository are those associated with in- PART 192—HEALTH AND ENVIRON-
advertent human intrusion. Some types of MENTAL PROTECTION STAND-
intrusion would have virtually no effect on a
repository’s containment of waste. On the ARDS FOR URANIUM AND THO-
other hand, it is possible to conceive of in- RIUM MILL TAILINGS
trusions (involving widespread societal loss
of knowledge regarding radioactive wastes) Subpart A—Standards for the Control of
that could result in major disruptions that Residual Radioactive Materials from
no reasonable repository selection or design
Inactive Uranium Processing Sites
precautions could alleviate. The Agency be-
lieves that the most productive consider- Sec.
ation of inadvertent intrusion concerns 192.00 Applicability.
those realistic possibilities that may be use- 192.01 Definitions.
fully mitigated by repository design, site se- 192.02 Standards.
lection, or use of passive controls (although 192.03 Monitoring.
passive institutional controls should not be 192.04 Corrective action.
assumed to completely rule out the possi-
TABLE 1 TO SUBPART A OF PART 192—MAX-
bility of intrusion). Therefore, inadvertent
IMUM CONCENTRATION OF CONSTITUENTS
and intermittent intrusion by exploratory
FOR GROUNDWATER PROTECTION
drilling for resources (other than any pro-
vided by the disposal system itself) can be
the most severe intrusion scenario assumed
Subpart B—Standards for Cleanup of Land
by the implementing agencies. Furthermore, and Buildings Contaminated with Re-
the implementing agencies can assume that sidual Radioactive Materials from In-
passive institutional controls or the intrud- active Uranium Processing Sites
ers’ own exploratory procedures are adequate
for the intruders to soon detect, or be warned 192.10 Applicability.
of, the incompatibility of the area with their 192.11 Definitions.
activities. 192.12 Standards.
Frequency and Severity of Inadvertent
Human Intrusion into Geologic Repositories. Subpart C—Implementation
The implementing agencies should consider
192.20 Guidance for implementation.
the effects of each particular disposal sys-
192.21 Criteria for applying supplemental
tem’s site, design, and passive institutional
standards.
controls in judging the likelihood and con-
192.22 Supplemental standards.
sequences of such inadvertent exploratory
drilling. However, the Agency assumes that
the likelihood of such inadvertent and inter-
Subpart D—Standards for Management of
mittent drilling need not be taken to be
greater than 30 boreholes per square kilo- Uranium Byproduct Materials Pursuant
meter of repository area per 10,000 years for to Section 84 of the Atomic Energy Act
geologic repositories in proximity to sedi- of 1954, as Amended
mentary rock formations, or more than 3
boreholes per square kilometer per 10,000 192.30 Applicability.
years for repositories in other geologic for- 192.31 Definitions and cross-references.
mations. Furthermore, the Agency assumes 192.32 Standards.
that the consequences of such inadvertent 192.33 Corrective action programs.
drilling need not be assumed to be more se- 192.34 Effective date.
vere than: (1) Direct release to the land sur- TABLE A TO SUBPART D OF PART 192
face of all the ground water in the repository
horizon that would promptly flow through Subpart E—Standards for Management of
the newly created borehole to the surface Thorium Byproduct Materials Pursuant
due to natural lithostatic pressure—or (if to Section 84 of the Atomic Energy Act
pumping would be required to raise water to of 1954, as Amended

the surface) release of 200 cubic meters of
ground water pumped to the surface if that 192.40 Applicability.
17
§ 192.00 40 CFR Ch. I (7–1–21 Edition)
192.41 Provisions. (f) Curie (Ci) means the amount of ra-
192.42 Substitute provisions. dioactive material that produces 37 bil-
192.43 Effective date. lion nuclear transformation per second.
APPENDIX I TO PART 192—LISTED CONSTITU- One picocurie (pCi) = 10¥12 Ci.
ENTS (g) Act means the Uranium Mill
AUTHORITY: Sec. 275 of the Atomic Energy Tailings Radiation Control Act of 1978,
Act of 1954, 42 U.S.C. 2022, as added by the as amended.
Uranium Mill Tailings Radiation Control (h) Administrator means the Adminis-
Act of 1978, Pub. L. 95–604, as amended. trator of the Environmental Protection
SOURCE: 48 FR 602, Jan. 5, 1983, unless oth- Agency.
erwise noted. (i) Secretary means the Secretary of
Energy.
Subpart A—Standards for the (j) Commission means the Nuclear
Control of Residual Radio- Regulatory Commission.
(k) Indian tribe means any tribe,
active Materials from Inactive band, clan, group, pueblo, or commu-
Uranium Processing Sites nity of Indians recognized as eligible
§ 192.00 Applicability. for services provided by the Secretary
of the Interior to Indians.
This subpart applies to the control of (l) Processing site means:
residual radioactive material at des- (1) Any site, including the mill, des-
ignated processing or depository sites ignated by the Secretary under Section
under section 108 of the Uranium Mill 102(a)(1) of the Act; and
Tailings Radiation Control Act of 1978 (2) Any other real property or im-
(henceforth designated ‘‘the Act’’), and provement thereon which is in the vi-
to restoration of such sites following cinity of such site, and is determined
any use of subsurface minerals under by the Secretary, in consultation with
section 104(h) of the Act. the Commission, to be contaminated
(2) Other wastes (which the Secretary with residual radioactive materials de-
determines to be radioactive) at a proc- rived from such site.
essing site which relate to such proc- (m) Tailings means the remaining
essing, including any residual stock of portion of a metal-bearing ore after
unprocessed ores or low-grade mate- some or all of such metal, such as ura-
rials. nium, has been extracted.
(b) Remedial action means any action (n) Disposal period means the period
performed under section 108 of the Act. of time beginning March 7, 1983 and
(c) Control means any remedial ac- ending with the completion of all sub-
tion intended to stabilize, inhibit fu- part A requirements specified under a
ture misuse of, or reduce emissions or plan for remedial action except those
effluents from residual radioactive ma- specified in § 192.03 and § 192.04.
terials. (o) Plan for remedial action means a
(d) Disposal site means the region written plan (or plans) for disposal and
within the smallest perimeter of resid- cleanup of residual radioactive mate-
ual radioactive material (excluding rials associated with a processing site
cover materials) following completion that incorporates the results of site
of control characterization studies, environ-
mental assessments or impact state-
§ 192.01 Definitions. ments, and engineering assessments so
(a) Residual radioactive material as to satisfy the requirements of sub-
means: parts A and B of this part. The plan(s)
(1) Waste (which the Secretary deter- shall be developed in accordance with
mines to be radioactive) in the form of the provisions of Section 108(a) of the
tailings resulting from the processing Act with the concurrence of the Com-
of ores for the extraction of uranium mission and in consultation, as appro-
and other valuable constituents of the priate, with the Indian Tribe and the
ores; and activities. Secretary of Interior.
(e) Depository site means a site (other (p) Post-disposal period means the pe-
than a processing site) selected under riod of time beginning immediately
Section 104(b) or 105(b) of the Act. after the disposal period and ending at
18
termination of the monitoring period (1) The Secretary shall, on a site-spe-

established under § 192.03. cific basis, determine which of the con-
(q) Groundwater means water below stituents listed in Appendix I to Part
the ground surface in a zone of satura- 192 are present in or reasonably derived
tion. from residual radioactive materials
(r) Underground source of drinking and shall establish a monitoring pro-
water means an aquifer or its portion: gram adequate to determine back-
(1)(i) Which supplies any public water ground levels of each such constituent
system as defined in § 141.2 of this chap- in groundwater at each disposal site.
ter; or (2) The Secretary shall comply with
(ii) Which contains a sufficient quan- conditions specified in a plan for reme-
tity of groundwater to supply a public
dial action which includes engineering
water system; and
specifications for a system of disposal
(A) Currently supplies drinking water
designed to ensure that constituents
for human consumption; or
(B) Contains fewer than 10,000 mg/l identified under paragraph (c)(1) of this
total dissolved solids; and section entering the groundwater from
(2) Which is not an exempted aquifer a depository site (or a processing site,
as defined in § 144.7 of this chapter. if residual radioactive materials are re-
tained on the site) will not exceed the
[48 FR 602, Jan. 5, 1983, as amended at 60 FR concentration limits established under
2865, Jan. 11, 1995]
paragraph (c)(3) of this section (or the
§ 192.02 Standards. supplemental standards established
under § 192.22) in the uppermost aquifer
Control of residual radioactive mate-
underlying the site beyond the point of
rials and their listed constituents shall
compliance established under para-
be designed 1 to:
graph (c)(4) of this section.
(a) Be effective for up to one thou-
sand years, to the extent reasonably (3) Concentration limits:
achievable, and, in any case, for at (i) Concentration limits shall be de-
least 200 years, and, termined in the groundwater for listed
(b) Provide reasonable assurance that constituents identified under para-
releases of radon-222 from residual ra- graph (c)(1) of this section. The con-
dioactive material to the atmosphere centration of a listed constituent in
will not: groundwater must not exceed:
(1) Exceed an average 2 release rate of (A) The background level of that con-
20 picocuries per square meter per sec- stituent in the groundwater; or
ond, or (B) For any of the constituents listed
(2) Increase the annual average con- in Table 1 to subpart A, the respective
centration of radon-222 in air at or value given in that Table if the back-
above any location outside the disposal ground level of the constituent is below
site by more than one-half picocurie the value given in the Table; or
per liter. (C) An alternate concentration limit
(c) Provide reasonable assurance of established pursuant to paragraph
conformance with the following (c)(3)(ii) of this section.
groundwater protection provisions: (ii)(A) The Secretary may apply an
alternate concentration limit if, after
1 Because the standard applies to design,
considering remedial or corrective ac-
monitoring after disposal is not required to tions to achieve the levels specified in
demonstrate compliance with respect to
§ 192.02(a) and (b). paragraphs (c)(3)(i)(A) and (B) of this
2 This average shall apply over the entire section, he has determined that the
surface of the disposal site and over at least constituent will not pose a substantial
a one-year period. Radon will come from present or potential hazard to human
both residual radioactive materials and from health and the environment as long as
materials covering them. Radon emissions the alternate concentration limit is
from the covering materials should be esti-
not exceeded, and the Commission has
mated as part of developing a remedial ac-
tion plan for each site. The standard, how- concurred.

ever, applies only to emissions from residual (B) In considering the present or po-
radioactive materials to the atmosphere. tential hazard to human health and the
19
§ 192.03 40 CFR Ch. I (7–1–21 Edition)
environment of alternate concentra- (viii) The potential for health risks

tion limits, the following factors shall caused by human exposure to constitu-
be considered: ents;
(1) Potential adverse effects on (ix) The potential damage to wildlife,
groundwater quality, considering: crops, vegetation, and physical struc-
(i) The physical and chemical charac- tures caused by exposure to constitu-
teristics of constituents in the residual ents; and
radioactive material at the site, in- (x) The persistence and permanence
cluding their potential for migration; of the potential adverse effects.
(ii) The hydrogeological characteris- (4) Point of compliance: The point of
tics of the site and surrounding land; compliance is the location at which the
(iii) The quantity of groundwater and groundwater concentration limits of
the direction of groundwater flow; paragraph (c)(3) of this section apply.
(iv) The proximity and withdrawal The point of compliance is the inter-
rates of groundwater users; section of a vertical plane with the up-
(v) The current and future uses of permost aquifer underlying the site, lo-
groundwater in the region surrounding cated at the hydraulically
the site; downgradient limit of the disposal area
(vi) The existing quality of ground- plus the area taken up by any liner,
water, including other sources of con- dike, or other barrier designed to con-
tamination and their cumulative im- tain the residual radioactive material.
pact on the groundwater quality; (d) Each site on which disposal oc-
(vii) The potential for health risks curs shall be designed and stabilized in
caused by human exposure to constitu- a manner that minimizes the need for
ents; future maintenance.
(viii) The potential damage to wild- [60 FR 2865, Jan. 11, 1995]
life, crops, vegetation, and physical
structures caused by exposure to con- § 192.03 Monitoring.
stituents;
A groundwater monitoring plan shall
(ix) The persistence and permanence
be implemented, to be carried out over
of the potential adverse effects;
a period of time commencing upon
(x) The presence of underground
completion of remedial actions taken
sources of drinking water and exempt-
to comply with the standards in
ed aquifers identified under § 144.7 of
§ 192.02, and of a duration which is ade-
this chapter; and
quate to demonstrate that future per-
(2) Potential adverse effects on hy-
formance of the system of disposal can
draulically-connected surface-water
reasonably be expected to be in accord-
quality, considering:
ance with the design requirements of
(i) The volume and physical and
§ 192.02(c). This plan and the length of
chemical characteristics of the resid-
the monitoring period shall be modi-
ual radioactive material at the site;
fied to incorporate any corrective ac-
(ii) The hydrogeological characteris-
tions required under § 192.04 or
tics of the site and surrounding land;
§ 192.12(c).
(iii) The quantity and quality of
groundwater, and the direction of [60 FR 2866, Jan. 11, 1995]
groundwater flow;
(iv) The patterns of rainfall in the re- § 192.04 Corrective action.
gion; If the groundwater concentration
(v) The proximity of the site to sur- limits established for disposal sites
face waters; under provisions of § 192.02(c) are found
(vi) The current and future uses of or projected to be exceeded, a correc-
surface waters in the region sur- tive action program shall be placed
rounding the site and any water qual- into operation as soon as is prac-
ity standards established for those sur- ticable, and in no event later than
face waters; eighteen (18) months after a finding of
(vii) The existing quality of surface exceedance. This corrective action pro-
water, including other sources of con- gram will restore the performance of
tamination and their cumulative im- the system of disposal to the original
pact on surface water quality; concentration limits established under
20
§ 192.02(c)(3), to the extent reasonably section 101 of the Act, states, in part,
achievable, and, in any case, as a min- that ‘‘processing site’’ means—
imum shall: (a) Any site, including the mill, con-
(a) Conform with the groundwater taining residual radioactive materials
provisions of § 192.02(c)(3), and at which all or substantially all of the
(b) Clean up groundwater in conform- uranium was produced for sale to any
ance with subpart B, modified as appro- Federal agency prior to January 1,
priate to apply to the disposal site. 1971, under a contract with any Federal
[60 FR 2866, Jan. 11, 1995] agency, except in the case of a site at
or near Slick Rock, Colorado, unless—
TABLE 1 TO SUBPART A OF PART 192— (1) Such site was owned or controlled
MAXIMUM CONCENTRATION OF CON- as of Januray 1, 1978, or is thereafter
STITUENTS FOR GROUNDWATER PRO- owned or controlled, by any Federal
TECTION agency, or
Constituent concentration 1 Maximum (2) A license (issued by the (Nuclear
Regulatory) Commission or its prede-
Arsenic ................................................. 0.05 cessor agency under the Atomic En-
Barium .................................................. 1.0
Cadmium .............................................. 0.01 ergy Act of 1954 or by a State as per-
Chromium ............................................. 0.05 mitted under section 274 of such Act)
Lead ..................................................... 0.05 for the production at site of any ura-
Mercury ................................................ 0.002
Selenium .............................................. 0.01 nium or thorium product derived from
Silver .................................................... 0.05 ores is in effect on January 1, 1978, or
Nitrate (as N) ....................................... 10. is issued or renewed after such date;
Molybdenum ......................................... 0.1
Combined radium-226 and radium-228 5 pCi/liter
and
Combined uranium-234 and uranium- 30 pCi/liter (b) Any other real property or im-
238 2. provement thereon which—
Gross alpha-particle activity (excluding 15 pCi/liter
radon and uranium). (1) Is in the vicinity of such site, and
Endrin (1,2,3,4,10,10-hexachloro-6,7- 0.0002 (2) Is determined by the Secretary, in
exposy-1,4,4a,5,6,7,8,8a-octahydro- consultation with the Commission, to
1,4-endo,endo-5,8-
dimethanonaphthalene). be contaminated with residual radio-
Lindane (1,2,3,4,5,6- 0.004 active materials derived from such
hexachlorocyclohexane, gamma site.
insomer).
Methoxychlor (1,1,1-trichloro-2,2′- 0.1
bis(p-methoxyphenylethane)). § 192.11 Definitions.
Toxaphene (C10 H10 Cl6, technical 0.005
chlorinated camphene, 67–69 per-
(a) Unless otherwise indicated in this
cent chlorine). subpart, all terms shall have the same
2,4-D (2,4-dichlorophenoxyacetic acid) 0.1 meaning as defined in subpart A.
2,4,5-TP Silvex (2,4,5- 0.01
trichlorophenoxypropionic acid).
(b) Land means any surface or sub-
1 Milligrams
surface land that is not part of a dis-
per liter, unless stated otherwise.
2 Where secular equilibrium obtains, this criterion will be posal site and is not covered by an oc-
satisfied by a concentration of 0.044 milligrams per liter (0.044 cupiable building.
mg/l). For conditions of other than secular equilibrium, a cor-
responding value may be derived and applied, based on the (c) Working Level (WL) means any
measured site-specific ratio of the two isotopes of uranium. combination of short-lived radon decay
products in one liter of air that will re-
[60 FR 2866, Jan. 11, 1995]
sult in the ultimate emission of alpha
particles with a total energy of 130 bil-
Subpart B—Standards for Cleanup lion electron volts.
of Land and Buildings Con- (d) Soil means all unconsolidated ma-
taminated with Residual Ra- terials normally found on or near the
dioactive Materials from Inac- surface of the earth including, but not
tive Uranium Processing Sites limited to, silts, clays, sands, gravel,
and small rocks.
§ 192.10 Applicability. (e) Limited use groundwater means
This subpart applies to land and groundwater that is not a current or
buildings that are part of any proc- potential source of drinking water be-
essing site designated by the Secretary cause (1) the concentration of total dis-
of Energy under section 102 of the Act. solved solids is in excess of 10,000 mg/l,
21
§ 192.12 40 CFR Ch. I (7–1–21 Edition)
or (2) widespread, ambient contamina- (1) A monitoring program shall be

tion not due to activities involving re- carried out that is adequate to define
sidual radioactive materials from a backgroundwater quality and the areal
designated processing site exists that extent and magnitude of groundwater
cannot be cleaned up using treatment contamination by listed constituents
methods reasonably employed in public from residual radioactive materials
water systems, or (3) the quantity of (§ 192.02(c)(1)) and to monitor compli-
water reasonably available for sus- ance with this subpart. The Secretary
tained continuous use is less than 150 shall determine which of the constitu-
gallons per day. The parameters for de- ents listed in Appendix I to part 192 are
termining the quantity of water rea- present in or could reasonably be de-
sonably available shall be determined
rived from residual radioactive mate-
by the Secretary with the concurrence
rial at the site, and concentration lim-
of the Commission.
its shall be established in accordance
[48 FR 602, Jan. 5, 1983, as amended at 60 FR with § 192.02(c)(3).
2866, Jan. 11, 1995]
(2) (i) If the Secretary determines
§ 192.12 Standards. that sole reliance on active remedial
procedures is not appropriate and that
Remedial actions shall be conducted cleanup of the groundwater can be
so as to provide reasonable assurance
more reasonably accomplished in full
that, as a result of residual radioactive
or in part through natural flushing,
materials from any designated processing
site: then the period for remedial procedures
(a) The concentration of radium-226 may be extended. Such an extended pe-
in land averaged over any area of 100 riod may extend to a term not to ex-
square meters shall not exceed the ceed 100 years if:
background level by more than— (A) The concentration limits estab-
(1) 5 pCi/g, averaged over the first 15 lished under this subpart are projected
cm of soil below the surface, and to be satisfied at the end of this ex-
(2) 15 pCi/g, averaged over 15 cm thick tended period,
layers of soil more than 15 cm below (B) Institutional control, having a
the surface. high degree of permanence and which
(b) In any occupied or habitable will effectively protect public health
building— and the environment and satisfy bene-
(1) The objective of remedial action ficial uses of groundwater during the
shall be, and reasonable effort shall be extended period and which is enforce-
made to achieve, an annual average (or able by the administrative or judicial
equivalent) radon decay product con- branches of government entities, is in-
centration (including background) not stituted and maintained, as part of the
to exceed 0.02 WL. In any case, the remedial action, at the processing site
radon decay product concentration (in- and wherever contamination by listed
cluding background) shall not exceed constituents from residual radioactive
0.03 WL, and materials is found in groundwater, or
(2) The level of gamma radiation
is projected to be found, and
shall not exceed the background level
(C) The groundwater is not currently
by more than 20 microroentgens per
hour. and is not now projected to become a
(c) The Secretary shall comply with source for a public water system sub-
conditions specified in a plan for reme- ject to provisions of the Safe Drinking
dial action which provides that con- Water Act during the extended period.
tamination of groundwater by listed (ii) Remedial actions on groundwater
constituents from residual radioactive conducted under this subpart may
material at any designated processing occur before or after actions under Sec-
site (§ 192.01(1)) shall be brought into tion 104(f)(2) of the Act are initiated.
compliance as promptly as is reason- (3) Compliance with this subpart
ably achievable with the provisions of shall be demonstrated through the
§ 192.02(c)(3) or any supplemental stand- monitoring program established under

ards established under § 192.22. For the paragraph (c)(1) of this section at those
purposes of this subpart: locations not beneath a disposal site
22
and its cover where groundwater con- control system design will satisfy the
tains listed constituents from residual standard. The numerical range pro-
radioactive material. vided in the standard for the longevity
[48 FR 602, Jan. 5, 1983, as amended at 60 FR
of the effectiveness of the control of re-
2867, Jan. 11, 1995] sidual radioactive materials allows for
consideration of the various factors af-
fecting the longevity of control and
Subpart C—Implementation stabilization methods and their costs.
§ 192.20 Guidance for implementation. These factors have different levels of
predictability and may vary for the dif-
Section 108 of the Act requires the
ferent sites.
Secretary of Energy to select and per-
(2) Protection of water should be con-
form remedial actions with the concur-
sidered on a case-specific basis, draw-
rence of the Nuclear Regulatory Com-
ing on hydrological and geochemical
mission and the full participation of
surveys and all other relevant data.
any State that pays part of the cost,
The hydrologic and geologic assess-
and in consultation, as appropriate,
with affected Indian Tribes and the ment to be conducted at each site
Secretary of the Interior. These par- should include a monitoring program
ties, in their respective roles under sec- sufficient to establish background
tion 108, are referred to hereafter as groundwater quality through one or
‘‘the implementing agencies.’’ The im- more upgradient or other appropriately
plementing agencies shall establish located wells. The groundwater moni-
methods and procedures to provide toring list in Appendix IX of part 264 of
‘‘reasonable assurance’’ that the provi- this chapter (plus the additional con-
sions of Subparts A and B are satisfied. stituents in Table A of this paragraph)
This should be done as appropriate may be used for screening purposes in
through use of analytic models and place of Appendix I of part 192 in the
site-specific analyses, in the case of monitoring program. New depository
Subpart A, and for Subpart B through sites for tailings that contain water at
measurements performed within the greater than the level of ‘‘specific re-
accuracy of currently available types tention’’ should use aliner or equiva-
of field and laboratory instruments in lent. In considering design objectives
conjunction with reasonable survey for groundwater protection, the imple-
and sampling procedures. These meth- menting agencies should give priority
ods and procedures may be varied to to concentration levels in the order
suit conditions at specific sites. In par- listed under § 192.02(c)(3)(i). When con-
ticular: sidering the potential for health risks
(a)(1) The purpose of Subpart A is to caused by human exposure to known or
provide for long-term stabilization and suspected carcinogens, alternate con-
isolation in order to inhibit misuse and centration limits pursuant to para-
spreading of residual radioactive mate- graph 192.02(c)(3)(ii) should be estab-
rials, control releases of radon to air, lished at concentration levels which
and protect water. Subpart A may be represent an excess lifetime risk, at a
implemented through analysis of the point of exposure, to an average indi-
physical properties of the site and the vidual no greater than between 10¥4
control system and projection of the ef- and 10¥6.
fects of natural processes over time.
Events and processes that could signifi- TABLE A TO § 192.20(a)(2)—ADDITIONAL LISTED
cantly affect the average radon release CONSTITUENTS
rate from the entire disposal site Nitrate (as N)
should be considered. Phenomena that Molybdenum
are localized or temporary, such as Combined radium-226 and radium-228
local cracking or burrowing of rodents, Combined uranium-234 and uranium-238
Gross alpha-particle activity (excluding radon and
need to be taken into account only if
uranium)
their cumulative effect would be sig-
nificant in determining compliance (3) The plan for remedial action, con-
with the standard. Computational mod- curred in by the Commission, will

els, theories, and prevalent expert specify how applicable requirements of
judgment may be used to decide that a subpart A are to be satisfied. The plan
23
§ 192.20 40 CFR Ch. I (7–1–21 Edition)
should include the schedule and steps § 192.04 during the disposal period, un-
necessary to complete disposal oper- less the disposal operation is suspended
ations at the site. It should include an prior to completion for other than sea-
estimate of the inventory of wastes to sonal reasons.
be disposed of in the pile and their list- (b)(1) Compliance with § 192.12(a) and
ed constituents and address any need (b) of subpart B, to the extent prac-
to eliminate free liquids; stabilization tical, should be demonstrated through
of the wastes to a bearing capacity suf- radiation surveys. Such surveys may, if
ficient to support the final cover; and appropriate, be restricted to locations
the design and engineering specifica- likely to contain residual radioactive
tions for a cover to manage the migra- materials. These surveys should be de-
tion of liquids through the stabilized signed to provide for compliance aver-
pile, function without maintenance,
aged over limited areas rather than
promote drainage and minimize ero-
point-by-point compliance with the
sion or abrasion of the cover, and ac-
standards. In most cases, measurement
commodate settling and subsidence so
of gamma radiation exposure rates
that cover integrity is maintained.
Evaluation of proposed designs to con- above and below the land surface can
form to subpart A should be based on be used to show compliance with
realistic technical judgments and in- § 192.12(a). Protocols for making such
clude use of available empirical infor- measurements should be based on real-
mation. The consideration of possible istic radium distributions near the sur-
failure modes and related corrective face rather than extremes rarely en-
actions should be limited to reasonable countered.
failure assumptions, with a demonstra- (2) In § 192.12(a), ‘‘background level’’
tion that the disposal design is gen- refers to the native radium concentra-
erally amenable to a range of correction in soil. Since this may not be de-
tive actions. terminable in the presence of contami-
(4) The groundwater monitoring list nation by residual radioactive mate-
in Appendix IX of part 264 of this chap- rials, a surrogate ‘‘background level’’
ter (plus the additional constituents in may be established by simple direct or
Table A in paragraph (a)(2) of this sec- indirect (e.g., gamma radiation) meas-
tion) may be used for screening pur- urements performed nearby but outside
poses in place of Appendix I of part 192 of the contaminated location.
in monitoring programs. The moni- (3) Compliance with § 192.12(b) may be
toring plan required under § 192.03 demonstrated by methods that the De-
should be designed to include partment of Energy has approved for
verification of site-specific assump- use under Pub. L. 92–314 (10 CFR part
tions used to project the performance 712), or by other methods that the im-
of the disposal system. Prevention of plementing agencies determine are
contamination of groundwater may be
adequate. Residual radioactive mate-
assessed by indirect methods, such as
rials should be removed from buildings
measuring the migration of moisture
exceeding 0.03 WL so that future re-
in the various components of the cover,
the tailings, and the area between the placement buildings will not pose a
tailings and the nearest aquifer, as well hazard [unless removal is not prac-
as by direct monitoring of ground- tical—see § 192.21(c)]. However, seal-
water. In the case of vicinity properties ants, filtration, and ventilation devices
(§ 192.01(l)(2)), such assessments may may provide reasonable assurance of
not be necessary, as determined by the reductions from 0.03 WL to below 0.02
Secretary, with the concurrence of the WL. In unusual cases, indoor radiation
Commission, considering such factors may exceed the levels specified in
as local geology and the amount of § 192.12(b) due to sources other than re-
contamination present. Temporary ex- sidual radioactive materials. Remedial
cursions from applicable limits of actions are not required in order to
groundwater concentrations that are comply with the standard when there
attributable to a disposal operation is reasonable assurance that residual

itself shall not constitute a basis for radioactive materials are not the cause
considering corrective action under of such an excess.
24
(4) The plan(s) for remedial action the extended cleanup period. Finally,
will specify how applicable require- the plan should specify details of the
ments of subpart B would be satisfied. method to be used for cleanup of
The plan should include the schedule groundwater.
and steps necessary to complete the [48 FR 602, Jan. 5, 1983, as amended at 60 FR
cleanup of groundwater at the site. It 2867, Jan. 11, 1995]
should document the extent of con-
tamination due to releases prior to § 192.21 Criteria for applying supple-
final disposal, including the identifica- mental standards.
tion and location of listed constituents Unless otherwise indicated in this
and the rate and direction of move- subpart, all terms shall have the same
ment of contaminated groundwater, meaning as defined in Title I of the Act
based upon the monitoring carried out or in subparts A and B. The imple-
under § 192.12(c)(1). In addition, the as- menting agencies may (and in the case
sessment should consider future plume of paragraph (h) of this section shall)
movement, including an evaluation of apply standards under § 192.22 in lieu of
such processes as attenuation and dilu- the standards of subparts A or B if they
tion and future contamination from be- determine that any of the following
neath a disposal site. Monitoring for circumstances exists:
assessment and compliance purposes (a) Remedial actions required to sat-
should be sufficient to establish the ex- isfy subpart A or B would pose a clear
tent and magnitude of contamination, and present risk of injury to workers
with reasonable assurance, through use or to members of the public, notwith-
of a carefully chosen minimal number standing reasonable measures to avoid
of sampling locations. The location and or reduce risk.
number of monitoring wells, the fre- (b) Remedial actions to satisfy the
quency and duration of monitoring, cleanup standards for land, § 192.12(a),
and the selection of indicator analytes and groundwater, § 192.12(c), or the ac-
for long-term groundwater monitoring, quisition of minimum materials re-
and, more generally, the design and op- quired for control to satisfy §§ 192.02(b)
eration of the monitoring system, will and (c), would, notwithstanding reason-
depend on the potential for risk to re- able measures to limit damage, di-
ceptors and upon other factors, includ- rectly produce health and environ-
ing characteristics of the subsurface mental harm that is clearly excessive
environment, such as velocity of compared to the health and environ-
groundwater flow, contaminant retar- mental benefits, now or in the future.
dation, time of groundwater or con- A clear excess of health and environ-
taminant transit to receptors, results mental harm is harm that is long-term,
of statistical evaluations of data manifest, and grossly disproportionate
trends, and modeling of the dynamics to health and environmental benefits
of the groundwater system. All of these that may reasonably be anticipated.
factors should be incorporated into the (c) The estimated cost of remedial
design of a site-specific monitoring action to satisfy § 192.12(a) at a ‘‘vicin-
program that will achieve the purpose ity’’ site (described under section
of the regulations in this subpart in 101(6)(B) of the Act) is unreasonably
the most cost-effective manner. In the high relative to the long-term benefits,
case of vicinity properties and the residual radioactive materials
(§ 192.01(l)(2)), such assessments will do not pose a clear present or future
usually not be necessary. The Sec- hazard. The likelihood that buildings
retary, with the concurrence of the will be erected or that people will
Commission, may consider such factors spend long periods of time at such a vi-
as local geology and amount of con- cinity site should be considered in
tamination present in determining cri- evaluating this hazard. Remedial ac-
teria to decide when such assessments tion will generally not be necessary
are needed. In cases where § 192.12(c)(2) where residual radioactive materials
is invoked, the plan should include a have been placed semi-permanently in
monitoring program sufficient to a location where site-specific factors

verify projections of plume movement limit their hazard and from which they
and attenuation periodically during are costly or difficult to remove, or
25
§ 192.22 40 CFR Ch. I (7–1–21 Edition)
where only minor quantities of residual dioactivity to levels that are as low as
radioactive materials are involved. Ex- is reasonably achievable and conform
amples are residual radioactive mate- to the standards of subparts A and B to
rials under hard surface public roads the maximum extent practicable.
and sidewalks, around public sewer (c) The implementing agencies may
lines, or in fence post foundations. Sup- make general determinations con-
plemental standards should not be ap- cerning remedial actions under this
plied at such sites, however, if individ- section that will apply to all locations
uals are likely to be exposed for long with specified characteristics, or they
periods of time to radiation from such may make a determination for a spe-
materials at levels above those that cific location. When remedial actions
would prevail under § 192.12(a). are proposed under this section for a
(d) The cost of a remedial action for specific location, the Department of
cleanup of a building under § 192.12(b) is Energy shall inform any private own-
clearly unreasonably high relative to ers and occupants of the affected loca-
the benefits. Factors that should be in- tion and solicit their comments. The
cluded in this judgment are the antici- Department of Energy shall provide
pated period of occupancy, the incre- any such comments to the other imple-
mental radiation level that would be menting agencies. The Department of
affected by the remedial action, the re- Energy shall also periodically inform
sidual useful lifetime of the building, the Environmental Protection Agency
the potential for future construction at of both general and individual deter-
the site, and the applicability of less minations under the provisions of this
costly remedial methods than removal section.
of residual radioactive materials. (d) When § 192.21(b), (f), or (g) apply,
(e) There is no known remedial ac- implementing agencies shall apply any
tion. remedial actions for the restoration of
(f) The restoration of groundwater contamination of groundwater by re-
quality at any designated processing sidual radioactive materials that is re-
site under § 192.12(c) is technically im- quired to assure, at a minimum, pro-
practicable from an engineering per- tection of human health and the envi-
spective. ronment. In addition, when § 192.21(g)
(g) The groundwater meets the cri-
applies, supplemental standards shall
teria of § 192.11(e).
ensure that current and reasonably
(h) Radionuclides other than radium-
projected uses of the affected ground-
226 and its decay products are present
water are preserved.
in sufficient quantity and concentra-
tion to constitute a significant radi- [48 FR 602, Jan. 5, 1983, as amended at 60 FR
ation hazard from residual radioactive 2868, Jan. 11, 1995]
materials.
§ 192.23 Effective date.
[48 FR 602, Jan. 5, 1983, as amended at 60 FR
2868, Jan. 11, 1995] Subparts A, B, and C shall be effec-
tive March 7, 1983.
§ 192.22 Supplemental standards.
Federal agencies implementing sub- Subpart D—Standards for Man-
parts A and B may in lieu thereof pro- agement of Uranium Byprod-
ceed pursuant to this section with re- uct Materials Pursuant to Sec-
spect to generic or individual situation 84 of the Atomic Energy
tions meeting the eligibility require-
ments of § 192.21.
Act of 1954, as Amended
(a) When one or more of the criteria
of § 192.21(a) through (g) applies, the SOURCE: 48 FR 45946, Oct. 7, 1983, unless
Secretary shall select and perform that otherwise noted.
alternative remedial action that comes
as close to meeting the otherwise ap- § 192.30 Applicability.
plicable standard under § 192.02(c)(3) as This subpart applies to the manage-
is reasonably achievable. ment of uranium byproduct materials

(b) When § 192.21(h) applies, remedial under section 84 of the Atomic Energy
actions shall reduce other residual ra- Act of 1954 (henceforth designated ‘‘the
26
Act’’), as amended, during and fol- of uranium ore processing operations

lowing processing of uranium ores, and and ending with completion of require-
to restoration of disposal sites fol- ments specified under a closure plan.
lowing any use of such sites under sec- (i) Closure plan means the plan re-
tion 83(b)(1)(B) of the Act. quired under § 264.112 of this chapter.
(j) Existing portion means that land
§ 192.31 Definitions and cross-ref- surface area of an existing surface im-
erences. poundment on which significant quan-
References in this subpart to other tities of uranium byproduct materials
parts of the Code of Federal Regula- have been placed prior to promulgation
tions are to those parts as codified on of this standard.
January 1, 1983. (k) As expeditiously as practicable con-
(a) Unless otherwise indicated in this sidering technological feasibility means
subpart, all terms shall have the same as quickly as possible considering: the
meaning as in Title II of the Uranium physical characteristics of the tailings
Mill Tailings Rediation Control Act of and the site; the limits of available
1978, subparts A and B of this part, or technology; the need for consistency
parts 190, 260, 261, and 264 of this chap- with mandatory requirements of other
ter. For the purposes of this subpart, regulatory programs; and factors be-
the terms ‘‘waste,’’ ‘‘hazardous waste,’’ yond the control of the licensee. The
and related terms, as used in parts 260, phrase permits consideration of the
261, and 264 of this chapter shall apply cost of compliance only to the extent
to byproduct material. specifically provided for by use of the
(b) Uranium byproduct material means term ‘‘available technology.’’
the tailings or wastes produced by the (l) Permanent Radon Barrier means
extraction or concentration of uranium the final radon barrier constructed to
from any ore processed primarily for achieve compliance with, including at-
its source material content. Ore bodies tainment of, the limit on releases of
depleted by uranium solution extrac- radon-222 in § 192.32(b)(1)(ii).
tion operations and which remain un- (m) Available technology means tech-
derground do not constitute ‘‘byprod- nologies and methods for emplacing a
uct material’’ for the purpose of this permanent radon barrier on uranium
subpart. mill tailings piles or impoundments.
(c) Control means any action to sta- This term shall not be construed to in-
bilize, inhibit future misuse of, or re- clude extraordinary measures or tech-
duce emissions or effluents from ura- niques that would impose costs that
nium byproduct materials. are grossly excessive as measured by
(d) Licensed site means the area con- practice within the industry or one
tained within the boundary of a loca- that is reasonably analogous, (such as,
tion under the control of persons gen- by way of illustration only, unreason-
erating or storing uranium byproduct able overtime, staffing or transpor-
materials under a license issued pursu- tation requirements, etc., considering
ant to section 84 of the Act. For pur- normal practice in the industry; laser
poses of this subpart, ‘‘licensed site’’ is fusion, of soils, etc.), provided there is
equivalent to ‘‘regulated unit’’ in sub- reasonable progress toward emplace-
part F of part 264 of this chapter. ment of a permanent radon barrier. To
(e) Disposal site means a site selected determine grossly excessive costs, the
pursuant to section 83 of the Act. relevant baseline against which cost
(f) Disposal area means the region increases shall be compared is the cost
within the perimeter of an impound- estimate for tailings impoundment clo-
ment or pile containing uranium by sure contained in the licensee’s tailings
product materials to which the post- closure plan, but costs beyond such es-
closure requirements of § 192.32(b)(1) of timates shall not automatically be
this subpart apply. considered grossly excessive.
(g) Regulatory agency means the U.S. (n) Tailings Closure Plan (Radon)
Nuclear Regulatory Commission. means the Nuclear Regulatory Com-
(h) Closure period means the period of mission or Agreement State approved
time beginning with the cessation, plan detailing activities to accomplish
with respect to a waste impoundment, timely emplacement of a permanent
27
§ 192.32 40 CFR Ch. I (7–1–21 Edition)
radon barrier. A tailings closure plan pile or impoundment until the day
shall include a schedule for key radon final closure begins.
closure milestone activities such as (q) Milestone means an enforceable
wind blown tailings retrieval and date by which action, or the occurrence
placement on the pile, interim sta- of an event, is required for purposes of
bilization (including dewatering or the achieving compliance with the 20 pCi/
removal of freestanding liquids and m2¥s flux standard.
recontouring), and emplacement of a [48 FR 45946, Oct. 7, 1983, as amended at 58 FR
permanent radon barrier constructed 60355, Nov. 15, 1993]
to achieve compliance with the 20 pCi/
m2-s flux standard as expeditiously as § 192.32 Standards.
practicable considering technological (a) Standards for application during
feasibility (including factors beyond processing operations and prior to the end
the control of the licensee). of the closure period. (1) Surface im-
(o) Factors beyond the control of the li- poundments (except for an existing
censee means factors proximately caus- portion) subject to this subpart must
ing delay in meeting the schedule in be designed, constructed, and installed
the applicable license for timely em- in such manner as to conform to the
placement of the permanent radon bar- requirements of § 264.221 of this chap-
rier notwithstanding the good faith ef- ter, except that at sites where the an-
forts of the licensee to achieve compli- nual precipitation falling on the im-
ance. These factors may include, but poundment and any drainage area con-
are not limited to, physical conditions tributing surface runoff to the im-
at the site; inclement weather or cli- poundment is less than the annual
matic conditions; an act of God; an act evaporation from the impoundment,
of war; a judicial or administrative the requirements of § 264.228(a)(2)
order or decision, or change to the (iii)(E) referenced in § 264.221 do not
statutory, regulatory, or other legal apply.
requirements applicable to the licens- (2) Uranium byproduct materials
ee’s facility that would preclude or shall be managed so as to conform to
delay the performance of activities re- the ground water protection standard
quired for compliance; labor disturb- in § 264.92 of this chapter, except that
ances; any modifications, cessation or for the purposes of this subpart:
delay ordered by state, Federal or local (i) To the list of hazardous constitu-
agencies; delays beyond the time rea- ents referenced in § 264.93 of this chap-
sonably required in obtaining nec- ter are added the chemical elements
essary governmental permits, licenses, molybdenum and uranium,
approvals or consent for activities de- (ii) To the concentration limits pro-
scribed in the tailings closure plan vided in Table 1 of § 264.94 of this chap-
(radon) proposed by the licensee that ter are added the radioactivity limits
result from agency failure to take final in Table A of this subpart,
action after the licensee has made a (iii) Detection monitoring programs
good faith, timely effort to submit le- required under § 264.98 to establish the
gally sufficient applications, responses standards required under § 264.92 shall
to requests (including relevant data re- be completed within one (1) year of pro-
quested by the agencies), or other in- mulgation,
formation, including approval of the (iv) The regulatory agency may es-
tailings closure plan by NRC or the af- tablish alternate concentration limits
fected Agreement State; and an act or (to be satisfied at the point of compli-
omission of any third party over whom ance specified under § 264.95) under the
the licensee has no control. criteria of § 264.94(b), provided that,
(p) Operational means that a uranium after considering practicable corrective
mill tailings pile or impoundment is actions, these limits are as low as rea-
being used for the continued placement sonably achievable, and that, in any
of uranium byproduct material or is in case, the standards of § 264.94(a) are sat-
standby status for such placement. A isfied at all points at a greater distance
tailings pile or impoundment is oper- than 500 meters from the edge of the
ational from the day that uranium by- disposal area and/or outside the site
product material is first placed in the boundary, and
28
(v) The functions and responsibilities able technology’’ in § 192.31(m); and the
designated in Part 264 of this chapter delay will not result in radon releases
as those of the ‘‘Regional Adminis- that are determined to result in signifi-
trator’’ with respect to ‘‘facility per- cant incremental risk to the public
mits’’ shall be carried out by the regu- health.
latory agency, except that exemptions (iv) The Nuclear Regulatory Commis-
of hazardous constituents under § 264.93 sion or Agreement State may, in re-
(b) and (c) of this chapter and alternate sponse to a request from a licensee, au-
concentration limits established under thorize by license or license amend-
§ 264.94 (b) and (c) of this chapter ment a portion of the site to remain
(except as otherwise provided in accessible during the closure process to
§ 192.32(a)(2)(iv)) shall not be effective accept uranium byproduct material as
until EPA has concurred therein. defined in section 11(e)(2) of the Atomic
(3)(i) Uranium mill tailings piles or Energy Act, 42 U.S.C. 2014(e)(2), or to
impoundments that are nonoperational accept materials similar to the phys-
and subject to a license by the Nuclear ical, chemical and radiological charac-
Regulatory Commission or an Agree- teristics of the in situ uranium mill
ment State shall limit releases of tailings and associated wastes, from
radon-222 by emplacing a permanent other sources. No such authorization
radon barrier. This permanent radon may be used as a means for delaying or
barrier shall be constructed as expedi- otherwise impeding emplacement of
tiously as practicable considering tech- the permanent radon barrier over the
nological feasibility (including factors remainder of the pile or impoundment
beyond the control of the licensee) in a manner that will achieve compli-
after the pile or impoundment ceases ance with the 20 pCi/m2¥s flux stand-
to be operational. Such control shall be ard, averaged over the entire pile or
carried out in accordance with a writ- impoundment.
ten tailings closure plan (radon) to be (v) The Nuclear Regulatory Commis-
incorporated by the Nuclear Regu- sion or Agreement State may, in re-
latory Commission or Agreement State sponse to a request from a licensee, au-
into individual site licenses. thorize by license or license amend-
(ii) The Nuclear Regulatory Commis- ment a portion of a pile or impound-
sion or Agreement State may approve ment to remain accessible after em-
a licensee’s request to extend the time placement of a permanent radon bar-
for performance of milestones if, after rier to accept uranium byproduct ma-
providing an opportunity for public terial as defined in section 11(e)(2) of
participation, the Nuclear Regulatory the Atomic Energy Act, 42 U.S.C.
Commission or Agreement State finds 2014(e)(2), if compliance with the 20 pCi/
that compliance with the 20 pCi/m2¥s m2¥s flux standard of § 192.32(b)(1)(ii) is
flux standard has been demonstrated demonstrated by the licensee’s moni-
using a method approved by the NRC, toring conducted in a manner con-
in the manner required in 192.32(a)(4)(i). sistent with § 192.32(a)(4)(i). Such au-
Only under these circumstances and thorization may be provided only if the
during the period of the extension must Nuclear Regulatory Commission or
compliance with the 20 pCi/m2¥s flux Agreement State makes a finding, con-
standard be demonstrated each year. stituting final agency action and after
(iii) The Nuclear Regulatory Com- providing an opportunity for public
mission or Agreement State may ex- participation, that the site will con-
tend the final compliance date for em- tinue to achieve the 20 pCi/m2¥s flux
placement of the permanent radon bar- standard when averaged over the entire
rier, or relevant milestone, based upon impoundment.
cost if the new date is established after (4)(i) Upon emplacement of the per-
a finding by the Nuclear Regulatory manent radon barrier pursuant to 40
Commission or Agreement State, after CFR 192.32(a)(3), the licensee shall con-
providing an opportunity for public duct appropriate monitoring and anal-
participation, that the licensee is mak- ysis of the radon-222 releases to dem-
ing good faith efforts to emplace a per- onstrate that the design of the perma-
manent radon barrier; the delay is con- nent radon barrier is effective in lim-
sistent with the definition of ‘‘avail- iting releases of radon-222 to a level
29
§ 192.33 40 CFR Ch. I (7–1–21 Edition)
not exceeding 20 pCi/m2¥s as required ance of control of radiological hazards

by 40 CFR 192.32(b)(1)(ii). This moni- to
toring shall be conducted using the (i) Be effective for one thousand
procedures described in 40 CFR part 61, years, to the extent reasonably achiev-
Appendix B, Method 115, or any other able, and, in any case, for at least 200
measurement method proposed by a li- years, and,
censee that the Nuclear Regulatory (ii) Limit releases of radon-222 from
Commission or Agreement State ap- uranium byproduct materials to the at-
proves as being at least as effective as mosphere so as to not exceed an aver-
EPA Method 115 in demonstrating the age 2 release rate of 20 picocuries per
effectiveness of the permanent radon square meter per second (pCi/m2s).
barrier in achieving compliance with (2) The requirements of § 192.32(b)(1)
the 20 pCi/m2¥s flux standard. shall not apply to any portion of a li-
(ii) When phased emplacement of the censed and/or disposal site which con-
permanent radon barrier is included in tains a concentration of radium-226 in
the applicable tailings closure plan land, averaged over areas of 100 square
(radon), then radon flux monitoring re- meters, which, as a result of uranium
quired under § 192.32(a)(4)(i) shall be byproduct material, does not exceed
conducted, however the licensee shall the background level by more than:
be allowed to conduct such monitoring (i) 5 picocuries per gram (pCi/g), aver-
for each portion of the pile or impound- aged over the first 15 centimeters (cm)
ment on which the radon barrier has below the surface, and
been emplaced by conducting flux mon- (ii) 15 pCi/g, averaged over 15 cm
itoring on the closed portion. thick layers more than 15 cm below the
(5) Uranium byproduct materials surface.
shall be managed so as to conform to
the provisions of: [48 FR 45946, Oct. 7, 1983, as amended at 58 FR
60355, Nov. 15, 1993]
(i) Part 190 of this chapter, ‘‘Envi-
ronmental Radiation Protection Stand- § 192.33 Corrective action programs.
ards for Nuclear Power Operations’’
and If the ground water standards estab-
(ii) Part 440 of this chapter, ‘‘Ore lished under provisions of § 192.32(a)(2)
Mining and Dressing Point Source Cat- are exceeded at any licensed site, a cor-
egory: Effluent Limitations Guidelines rective action program as specified in
and New Source Performance Stand- § 264.100 of this chapter shall be put
ards, Subpart C, Uranium, Radium, and into operation as soon as is prac-
Vanadium Ores Subcategory.’’ ticable, and in no event later than
(6) The regulatory agency, in con- eighteen (18) months after a finding of
formity with Federal Radiation Protec- exceedance.
tion Guidance (FR, May 18, 1960, pgs.
4402–4403), shall make every effort to
maintain radiation doses from radon Subpart D shall be effective Decem-
emissions from surface impoundments ber 6, 1983.
of uranium byproduct materials as far
below the Federal Radiation Protec- TABLE A TO SUBPART D OF PART 192
tion Guides as is practicable at each li- pCi/liter
censed site.
(b) Standards for application after the Combined radium-226 and radium-228 ................ 5
closure period. At the end of the closure
period: 2 This average shall apply to the entire sur-
(1) Disposal areas shall each comply face of each disposal area over periods of at
with the closure performance standard least one year, but short compared to 100
in § 264.111 of this chapter with respect years. Radon will come from both uranium
to nonradiological hazards and shall be byproduct materials and from covering ma-
terials. Radon emissions from covering ma-
designed 1 to provide reasonable assur- terials should be estimated as part of devel-
oping a closure plan for each site. The stand-
1 The standard applies to design with a ard, however, applies only to emissions from
monitoring requirement as specified in uranium byproduct materials to the atmos-
§ 192.32(a)(4). phere.
30
Environmental Protection Agency Pt. 192, App. I
pCi/liter provisions of § 192.41 of this subpart al-

ternative provisions it deems more
Gross alpha-particle activity (excluding radon and
uranium) ............................................................. 15 practical that will provide at least an
equivalent level of protection for
human health and the environment.
Subpart E—Standards for Man-
agement of Thorium Byprod- § 192.43 Effective date.
uct Materials Pursuant to Sec- Subpart E shall be effective Decem-
tion 84 of the Atomic Energy ber 6, 1983.
Act of 1954, as Amended APPENDIX I TO PART 192—LISTED CON-
STITUENTS
SOURCE: 48 FR 45947, Oct. 7, 1983, unless
otherwise noted. Acetonitrile
Acetophenone (Ethanone, 1-phenyl)
§ 192.40 Applicability. 2-Acetylaminofluorene (Acetamide, N-9H-
fluoren-2-yl-)
This subpart applies to the manage- Acetyl chloride
ment of thorium byproduct materials 1-Acetyl-2-thiourea (Acetamide, N-
under section 84 of the Atomic Energy (aminothioxymethyl)-)
Act of 1954, as amended, during and fol- Acrolein (2-Propenal)
lowing processing of thorium ores, and Acrylamide (2-Propenamide)
to restoration of disposal sites fol- Acrylonitrile (2-Propenenitrile)
lowing any use of such sites under sec- Aflatoxins
Aldicarb (Propenal, 2-methyl-2-(methylthio)-
tion 83(b)(1)(B) of the Act. ,O-[(methylamino)carbonyl]oxime
Aldrin (1,4:5,8-Dimethanonaphthalene,
§ 192.41 Provisions. 1,2,3,4,10,10-hexachloro-1,4,4a,5,8,8a-
Except as otherwise noted in hexahydro(1a,4a,4ab,5a,8a,8ab)-)
§ 192.41(e), the provisions of subpart D Allyl alcohol (2-Propen-1-ol)
of this part, including §§ 192.31, 192.32, Allyl chloride (1-Propane,3-chloro)
and 192.33, shall apply to thorium by- Aluminum phosphide
4-Aminobiphenyl ([1,1′-Biphenyl]-4-amine)
product material and:
5-(Aminomethyl)-3-isoxazolol (3(2H)-
(a) Provisions applicable to the ele- Isoxazolone,5-(aminomethyl)-)
ment uranium shall also apply to the 4-Aminopyridine (4-Pyridineamine)
element thorium; Amitrole (lH-1,2,4-Triazol-3-amine)
(b) Provisions applicable to radon-222 Ammonium vanadate (Vanadic acid, ammo-
shall also apply to radon-220; and nium salt)
(c) Provisions applicable to radium- Aniline (Benzenamine)
226 shall also apply to radium-228. Antimony and compounds, N.O.S. 1
Aramite (Sulfurous acid, 2-chloroethyl 2-[4-
(d) Operations covered under
(1,1-dimethylethyl)phenoxy]-1-methylethyl
§ 192.32(a) shall be conducted in such a ester)
manner as to provide reasonable assur- Arsenic and compounds, N.O.S.
ance that the annual dose equivalent Arsenic acid (Arsenic acid H3 AsO4)
does not exceed 25 millirems to the Arsenic pentoxide (Arsenic oxide As2 O5)
whole body, 75 millirems to the thy- Auramine (Benzamine, 4,4′-
roid, and 25 millirems to any other carbonimidoylbis[N,N-dimethyl-])
organ of any member of the public as a Azaserine (L-Serine, diazoacetate (ester))
Barium and compounds, N.O.S.
result of exposures to the planned dis-
Barium cyanide
charge of radioactive materials, radon- Benz[c]acridine (3,4-Benzacridine)
220 and its daughters excepted, to the Benz[a]anthracene (1,2-Benzanthracene)
general environment. Benzal chloride (Benzene, dichloromethyl-)
(e) The provisions of § 192.32(a) (3) and Benzene (Cyclohexatriene)
(4) do not apply to the management of Benzenearsonic acid (Arsenic acid, phenyl-)
thorium byproduct material. Benzidine ([1,1′-Biphenyl]-4,4′-diamine)
Benzo[b]fluoranthene
[48 FR 45946, Oct. 7, 1983, as amended at 58 FR (Benz[e]acephananthrylene)
60356, Nov. 15, 1993]
1 The abbreviation N.O.S. (not otherwise
§ 192.42 Substitute provisions.

specified) signifies those members of the gen-
The regulatory agency may, with the eral class not specifically listed by name in
concurrence of EPA, substitute for any this appendix.
31
Pt. 192, App. I 40 CFR Ch. I (7–1–21 Edition)
Benzo[j]fluoranthene Crotonaldehyde (2-Butenal)
Benzo[k]fluoranthene Cyanides (soluble salts and complexes),
Benzo[a]pyrene N.O.S.
p-Benzoquinone (2,5-Cyclohexadiene-1,4- Cyanogen (Ethanedinitrile)
dione) Cyanogen bromide ((CN)Br)
Benzotrichloride (Benzene, (trichloro-meth- Cyanogen chloride ((CN)Cl)
yl)-) Cycasin (beta-D-Glucopyranoside, (methyl-
Benzyl chloride (Benzene, (chloromethyl)-) ONN-azoxy)methyl)
Beryllium and compounds, N.O.S. 2-Cyclohexyl-4,6-dinitrophenol (Phenol, 2-
Bromoacetone (2-Propanone, 1-bromo-) cyclohexyl-4,6-dinitro-)
Bromoform (Methane, tribromo-) Cyclophosphamide (2H-1,3,2-
4-Bromophenyl phenyl ether (Benzene, l- Oxazaphosphorin-2-amine,N,N-bis(2-
bromo-4-phenoxy-) chloroethyl) tetrahydro-,2-oxide)
Brucine (Strychnidin-10-one, 2,3-dimeth-oxy- 2,4-D and salts and esters (Acetic acid, (2,4-
) dichlorophenoxy)-)
Butyl benzyl phthalate (1,2- Daunomycin (5,12-Naphthacenedione,8-ace-
Benzenedicarbozylic acid, butyl tyl-10-[(3-amino-2,3,6-trideoxy-a-Llyxo-
phenylmethyl ester) hexopyranosyl)oxy]-7,8,9,10-tetrahydro-
Cacodylic acid (Arsinic acid, dimethyl) 6,8,11-trihydroxy-1-methoxy-,(8S-cis))
Cadmium and compounds, N.O.S. DDD (Benzene, 1,1′-(2,2-
Calcium chromate (Chromic acid H2 CrO4, dichloroethylidene)bis[4-chloro-)
calcium salt) DDE (Benzene, 1,1-(dichloroethylidene)bis[4-
Calcium cyanide (Ca(CN)2) chloro-)
Carbon disulfide DDT (Benzene, 1,1′-(2,2,2-
Carbon oxyfluoride (Carbonic difluoride) trichloroethlyidene)bis[4-chloro-)
Carbon tetrachloride (Methane, tetrachloro-) Diallate (Carbomothioic acid, bis(1-
Chloral (Acetaldehyde, trichloro-) methylethyl)-,S-(2,3-dichloro-2-propenyl)
Chlorambucil (Benzenebutanoic acid, 4- ester)
[bis(2-chloroethyl)amino]-) Dibenz[a,h]acridine
Chlordane (4,7-Methano-1H-in- Dibenz[a,j]acridine
dene,1,2,4,5,6,7,8,8-octachloro-2,3,3a,4,7,7a- Dibenz[a,h]anthracene
hexahydro-) 7H-Dibenzo[c,g]carbazole
Chlorinated benzenes, N.O.S. Dibenzo[a,e]pyrene (Naphtho[1,2,4,5-
Chlorinated ethane, N.O.S. def)crysene)
Chlorinated fluorocarbons, N.O.S. Dibenzo[a,h]pyrene (Dibenzo[b,def]crysene)
Chlorinated naphthalene, N.O.S. Dibenzo[a,i]pyrene (Benzo[rst]pentaphene)
Chlorinated phenol, N.O.S. 1,2-Dibromo-3-chloropropane (Propane, 1,2-
Chlornaphazin (Naphthalenamine, N,N′-bis(2- dibromo-3-chloro-)
chlorethyl)-) Dibutylphthalate (1,2-Benzenedicarboxylic
Chloroacetaldehyde (Acetaldehyde, chloro-) acid, dibutyl ester)
Chloroalkyl ethers, N.O.S. o-Dichlorobenzene (Benzene, 1,2-dichloro-)
p-Chloroaniline (Benzenamine, 4-chloro-) m-Dichlorobenzene (Benzene, 1,3-dichloro-)
Chlorobenzene (Benzene, chloro-) p-Dichlorobenzene (Benzene, 1,4-dichloro-)
Chlorobenzilate (Benzeneacetic acid, 4- Dichlorobenzene, N.O.S. (Benzene; dichloro-,
chloro-a-(4-chlorophenyl)-a-hydroxy-, N.O.S.)
ethyl ester) 3,3′-Dichlorobenzidine ([1,1′-Biphenyl]-4,4′-
p-Chloro-m-cresol (Phenol, 4-chloro-3-meth- diamine, 3,3′-dichloro-)
yl) 1,4-Dichloro-2-butene (2-Butene, 1,4-dichloro-
2-Chloroethyl vinyl ether (Ethene, (2- )
chloroethoxy)-) Dichlorodifluoromethane (Methane,
Chloroform (Methane, trichloro-) dichlorodifluoro-)
Chloromethyl methyl ether (Methane, Dichloroethylene, N.O.S.
chloromethoxy-) 1,1-Dichloroethylene (Ethene, 1,1-dichloro-)
b-Chloronapthalene (Naphthalene, 2-chloro-) 1,2-Dichloroethylene (Ethene, 1,2-dichloro-
o-Chlorophenol (Phenol, 2-chloro-) ,(E)-)
1-(o-Chlorophenyl)thiourea (Thiourea, (2- Dichloroethyl ether (Ethane, 1,1′-oxybis[2-
chlorophenyl-)) chloro-)
3-Chloropropionitrile (Propanenitrile, 3- Dichloroisopropyl ether (Propane, 2,2′-
chloro-) oxybis[2-chloro-)
Chromium and compounds, N.O.S. Dichloromethoxy ethane (Ethane, 1,1′-
Chrysene [methylenebis(oxy)bis[2-chloro-)
Citrus red No. 2 (2-Naphthalenol, 1-[(2,5- Dichloromethyl ether (Methane,
dimethoxyphenyl)azo]-) oxybis[chloro-)
Coal tar creosote 2,4-Dichlorophenol (Phenol, 2,4-dichloro-)
Copper cyanide (CuCN) 2,6-Dichlorophenol (Phenol, 2,6-dichloro-)

Creosote Dichlorophenylarsine (Arsinous dichloride,
Cresol (Chresylic acid) (Phenol, methyl-) phenyl-)
32
Dichloropropane, N.O.S. (Propane, dichloro- Dinoseb (Phenol, 2-(1-methylpropyl)-4,6-
,) dinitro-)
Dichloropropanol, N.O.S. (Propanol, Di-n-octyl phthalate (1,2-
dichloro-,) Benzenedicarboxylic acid, dioctyl ester)
Dichloropropene; N.O.S. (1-Propane, 1,4-Dioxane (1,4-Diethyleneoxide)
dichloro-,) Diphenylamine (Benzenamine, N-phenyl-)
1,3-Dichloropropene (1-Propene, 1,3-dichloro-) 1,2-Diphenylhydrazine (Hydrazine, 1,2-di-
Dieldrin (2,7:3,6-Dimethanonaphth[2,3- phenyl-)
b]oxirene,3,4,5,6,9,9-hexachloro- Di-n-propylnitrosamine (1-Propanamine,N-
1a,2,2a,3,6,6a,7,7a,octahydro- nitroso-N-propyl-)
,(1aa,2b,2aa,3b,6b,6aa,7b,7aa)-) Disulfoton (Phosphorodithioic acid, O,O-
1,2:3,4-Diepoxybutane (2,2′-Bioxirane) diethyl S-[2-(ethylthio)ethyl] ester)
Diethylarsine (Arsine, diethyl-) Dithiobiuret (Thioimidodicarbonic diamide
1,4 Diethylene oxide (1,4-Dioxane) [(H2 N)C(S)]2 NH)
Diethylhexyl phthalate (1,2- Endosulfan (6,9,Methano-2,4,3-
Benzenedicarboxlyic acid, bis(2-ethylhexl) benzodioxathiepin,6,7,8,9,10,10-hexachloro-
ester) 1,5,5a,6,9,9ahexahydro,3-oxide)
N,N-Diethylhydrazine (Hydrazine, 1,2- Endothall (7-Oxabicyclo[2.2.1]heptane-2,3-
diethyl) dicarboxylic acid)
O,O-Diethyl S-methyl dithiophosphate Endrin and metabolites (2,7:3,6-
(Phosphorodithioic acid, O,O-diethyl S- Dimethanonaphth[2,3-b]oxirene,3,4,5,6,9,9-
methyl ester) hexachloro1a,2,2a,3,6,6a,7,7a-octa-
Diethyl-p-nitrophenyl phosphate (Phos- hydro,(1aa,2b,2ab,3a,6a,6ab,7b,7aa)-)
phoric acid, diethyl 4-nitrophenyl ester) Epichlorohydrin (Oxirane, (chloromethyl)-)
Diethyl phthalate (1,2-Benzenedicarboxylic
Epinephrine (1,2-Benzenediol,4-[1-hydroxy-2-
acid, diethyl ester)
(methylamino)ethyl]-,(R)-,)
O,O-Diethyl O-pyrazinyl phosphorothioate
Ethyl carbamate (urethane) (Carbamic acid,
(Phosphorothioic acid, O,O-diethyl O-
ethyl ester)
pyrazinyl ester)
Ethyl cyanide (propanenitrile)
Diethylstilbesterol (Phenol, 4,4′-(1,2-diethyl-
Ethylenebisdithiocarbamic acid, salts and
1,2-ethenediyl)bis-,(E)-)
esters (Carbamodithioic acid, 1,2-
Dihydrosafrole (1,3-Benxodioxole, 5-propyl-)
Diisopropylfluorophosphate (DFP) Ethanediylbis-)
(Phosphorofluoridic acid, bis(1-methyl Ethylene dibromide (1,2-Dibromoethane)
ethyl) ester) Ethylene dichloride (1,2-Dichloroethane)
Dimethoate (Phosphorodithioic acid, O,O-di- Ethylene glycol monoethyl ether (Ethanol,
methyl S-[2-(methylamino) 2-oxoethyl] 2-ethoxy-)
ester) Ethyleneimine (Aziridine)
3,3′-Dimethoxybenzidine ([1,1′-Biphenyl]-4,4′- Ethylene oxide (Oxirane)
diamine, 3,3′-dimethoxy-) Ethylenethiourea (2-Imidazolidinethione)
p-Dimethylaminoazobenzene (Benzenamine, Ethylidene dichloride (Ethane, 1,1-Dichloro-)
N,N-dimethyl-4-(phenylazo)-) Ethyl methacrylate (2-Propenoic acid, 2-
7,12-Dimethylbenz[a]anthracene methyl-, ethyl ester)
(Benz[a]anthracene, 7,12-dimethyl-) Ethylmethane sulfonate (Methanesulfonic
3,3′-Dimethylbenzidine ([1,1′-Biphenyl]-4,4′- acid, ethyl ester)
diamine, 3,3′-dimethyl-) Famphur (Phosphorothioic acid, O-[4-
Dimethylcarbamoyl chloride (carbamic chlo- [(dimethylamino)sulphonyl]phenyl] O,O-di-
ride, dimethyl-) methyl ester)
1,1-Dimethylhydrazine (Hydrazine, 1,1-di- Fluoranthene
methyl-) Fluorine
1,2-Dimethylhydrazine (Hydrazine, 1,2-di- Fluoroacetamide (Acetamide, 2-fluoro-)
methyl-) Fluoroacetic acid, sodium salt (Acetic acid,
a,a-Dimethylphenethylamine fluoro-, sodium salt)
(Benzeneethanamine, a,a-dimethyl-) Formaldehyde (Methylene oxide)
2,4-Dimethylphenol (Phenol, 2,4-dimethyl-) Formic acid (Methanoic acid)
Dimethylphthalate (1,2-Benzenedicarboxylic Glycidylaldehyde (Oxiranecarboxyaldehyde)
acid, dimethyl ester) Halomethane, N.O.S.
Dimethyl sulfate (Sulfuric acid, dimethyl Heptachlor (4,7-Methano-1H-indene,
ester) 1,4,5,6,7,8,8-heptachloro-3a,4,7,7a-
Dinitrobenzene, N.O.S. (Benzene, dinitro-) tetrahydro-)
4,6-Dinitro-o-cresol and salts (Phenol, 2- Heptachlor epoxide (a, b, and g isomers) (2,5-
methyl-4,6-dinitro-) Methano-2H-indeno[1,2-b]-oxirene,
2,4-Dinitrophenol (Phenol, 2,4-dinitro-) 2,3,4,5,6,7,7-heptachloro-1a,1b,5,5a,6,6a-hexa-
2,4-Dinitrotoluene (Benzene, 1-methyl-2,4- hydro-,(1aa,1bb,2a,5a,5ab,6b,6aa)-)
dinitro-) Hexachlorobenzene (Benzene, hexachloro-)

2,6-Dinitrotoluene (Benzene, 2-methyl-1,3- Hexachlorobutadiene (1,3-Butadiene,
dinitro-) 1,1,2,3,4,4-hexachloro-)
33
Pt. 192, App. I 40 CFR Ch. I (7–1–21 Edition)
Hexachlorocyclopentadiene (1,3- Methyl ethyl ketone peroxide (2-Butanone,
Cyclopentadiene, 1,2,3,4,5,5-hexachloro-) peroxide)
Hexachlorodibenzofurans Methyl hydrazine (Hydrazine, methyl-)
Heptachlorodibenzo-p-dioxins Methyl iodide (Methane, iodo-)
Hexachloroethane (Ethane, hexachloro-) Methyl isocyanate (Methane, isocyanato-)
Hexachlorophene (phenol, 2,2′- 2-Methyllactonitrile (Propanenitrile, 2-hy-
Methylenebis[3,4,6-trichloro-) droxy-2-methyl-)
Hexachloropropene (1-Propene, 1,1,2,3,3,3- Methyl methacrylate (2-Propenoic acid, 2-
hexachloro-) methyl-, methyl ester)
Hexaethyl tetraphosphate (Tetraphosphoric Methyl methanesulfonate (Methanesulfonic
acid, hexaethyl ester) acid, methyl ester)
Hydrazine Methyl parathion (Phosphorothioic acid,
Hydrocyanic acid O,O-dimethyl O-(4-nitrophenyl) ester)
Hydrofluoric acid Methylthiouracil (4(1H)Pyrimidinone, 2,3-
Hydrogen sulfide (H2 S) dihydro-6-methyl-2-thioxo-)
Indeno(1,2,3-cd)pyrene Mitomycin C (Azirino[2′,3′:3,4]pyrrolo[1,2-
Isobutyl alcohol (1-Propanol, 2-methyl-) a]indole-4,7-dione,6-amino-8-
Isodrin (1,4,5,8-Dimethanonaphthalene, [[(aminocarbonyl) oxy]methyl]-
1,2,3,4,10,10-hexachloro-1,4,4a,5,8,8a- 1,1a,2,8,8a,8b-hexahydro-8a-methoxy-5-
hexahydro, (1a,4a,4ab,5b,8b,8ab)-) methy-, [1aS-(1aa,8b,8aa,8ba)]-)
Isosafrole (1,3-Benzodioxole, 5-(1-propenyl)-) MNNG (Guanidine, N-methyl-N′-nitro-N-ni-
Kepone (1,3,4-Metheno-2H-
troso-)
cyclobuta[cd]pentalen-2-one,
Mustard gas (Ethane, 1,1′-thiobis[2-chloro-)
1,1a,3,3a,4,5,5,5a,5b,6-decachlorooctahydro-)
Naphthalene
Lasiocarpine (2-Butenoic acid, 2-methyl-,7-
1,4-Naphthoquinone (1,4-Naphthalenedione)
[[2,3-dihydroxy-2-(1-methoxyethyl)-3-meth-
a-Naphthalenamine (1-Naphthylamine)
yl-1-oxobutoxy]methyl]-2,3,5,7a-
b-Naphthalenamine (2-Naphthylamine)
tetrahydro-1H-pyrrolizin-l-yl ester)
a-Naphthylthiourea (Thiourea, 1-
Lead and compounds, N.O.S.
naphthalenyl-)
Lead acetate (Acetic acid, lead(2 + ) salt)
Lead phosphate (Phosphoric acid, lead(2 + ) Nickel and compounds, N.O.S.
salt(2:3)) Nickel carbonyl (Ni(CO)4 (T-4)-)
Lead subacetate (Lead, bis(acetato- Nickel cyanide (Ni(CN)2)
O)tetrahydroxytri-) Nicotine and salts (Pyridine, 3-(1-methyl-2-
Lindane (Clohexane, 1,2,3,4,5,6-hexachloro-, pyrrolidinyl)-, (S)-)
(1a,2a,3b,4a,5a,6b)-) Nitric oxide (Nitrogen oxide NO)
Maleic anhydride (2,5-Furandione) p-Nitroaniline (Benzenamine, 4-nitro-)
Maleic hydrazide (3,6-Pyridazinedione, 1,2- Nitrobenzene (Benzene, nitro-)
dihydro-) Nitrogen dioxide (Nitrogen oxide NO2)
Malononitrile (Propanedinitrile) Nitrogen mustard, and hydrochloride salt
Melphalan (L-Phenylalanine, 4-[bis(2- (Ethanamine, 2-chloro-N-(2-chloroethyl)-N-
chloroethyl)aminol]-) methyl-)
Mercury and compounds, N.O.S. Nitrogen mustard N-oxide and hydrochloride
Mercury fulminate (Fulminic acid, mer- salt (Ethanamine, 2chloro-N-(2-
cury(2 + ) salt) chloroethyl)N-methyl-, N-oxide)
Methacrylonitrile (2-Propenenitrile, 2-meth- Nitroglycerin (1,2,3-Propanetriol, trinitrate)
yl-) p-Nitrophenol (Phenol, 4-nitro-)
Methapyrilene (1,2-Ethanediamine, N,N-di- 2-Nitropropane (Propane, 2-nitro-)
methyl-N′-2-pyridinyl-N′-(2- Nitrosamines, N.O.S.
thienylmethyl)-) N-Nitrosodi-n-butylamine (l-Butanamine, N-
Metholmyl (Ethamidothioic acid, N- butyl-N-nitroso-)
[[(methylamino)carbonyl]oxy]thio-, meth- N-Nitrosodiethanolamine (Ethanol, 2,2′-
yl ester) (nitrosoimino)bis-)
Methoxychlor (Benzene, 1,1′-(2,2,2- N-Nitrosodiethylamine (Ethanamine, N-
trichloroethylidene)bis[4-methoxy-) ethyl-N-nitroso-1)
Methyl bromide (Methane, bromo-) N-Nitrosodimethylamine (Methanamine, N-
Methyl chloride (Methane, chloro-) methyl-N-nitroso-)
Methyl chlorocarbonate (Carbonchloridic N-Nitroso-N-ethylurea (Urea, N-ethyl-N-ni-
acid, methyl ester) troso-)
Methyl chloroform (Ethane, 1,1,1-trichloro-) N-Nitrosomethylethylamine (Ethanamine,
3-Methylcholanthrene (Benz[j]aceanthrylene, N-methyl-N-nitroso-)
1,2-dihydro-3-methyl-) N-Nitroso-N-methylurea (Urea, N-methyl-N-
4,4′-Methylenebis(2-chloroaniline) nitroso-)
(Benzenamine, 4,4′-methylenebis(2-chloro-) N-Nitroso-N-methylurethane (Carbamic acid,
Methylene bromide (Methane, dibromo-) methylnitroso-, ethyl ester)

Methylene chloride (Methane, dichloro-) N-Nitrosomethylvinylamine (Vinylamine, N-
Methyl ethyl ketone (MEK) (2-Butanone) methyl-N-nitroso-)
34
N-Nitrosomorpholine (Morpholine, 4-nitroso- Silvex (Propanoic acid, 2-(2,4,5-
) trichlorophenoxy)-)
N-Nitrosonornicotine (Pyridine, 3-(1-nitroso- Sodium cyanide (Sodium cyanide Na(CN))
2-pyrrolidinyl)-, (S)-) Streptozotocin (D-Glucose, 2-deoxy-2-
N-Nitrosopiperidine (Piperidine, 1-nitroso-) [[methylnitrosoamino)carbonyl]amino]-)
Nitrosopyrrolidine (Pyrrolidine, 1-nitroso-) Strychnine and salts (Strychnidin-10-one)
N-Nitrososarcosine (Glycine, N-methyl-N-ni- TCDD (Dibenzo[b,e][1,4]dioxin, 2,3,7,8-tetra-
troso-) chloro-)
5-Nitro-o-toluidine (Benzenamine, 2-methyl- 1,2,4,5-Tetrachlorobenzene (Benzene, 1,2,4,5-
5-nitro-) tetrachloro-)
Octamethylpyrophosphoramide Tetrachlorodibenzo-p-dioxins
(Diphosphoramide, octamethyl-) Tetrachlorodibenxofurans
Osmium tetroxide (Osmium oxide OsO4, (T- Tetrachloroethane, N.O.S. (Ethane, tetra-
4)-) chloro-, N.O.S.)
Paraldehyde (1,3,5-Trioxane, 2,4,6-trimethyl-) 1,1,1,2-Tetrachloroethane (Ethane, 1,1,1,2-tet-
Parathion (Phosphorothioic acid, O,O- rachloro-)
diethyl O-(4-nitrophenyl) ester) 1,1,2,2-Tetrachloroethane (Ethane, 1,1,2,2-tet-
Pentachlorobenzene (Benzene, pentachloro-) rachloro-)
Pentachlorodibenzo-p-dioxins Tetrachloroethylene (Ethene, tetrachloro-)
Pentachlorodibenzofurans 2,3,4,6-Tetrachlorophenol (Phenol, 2,3,4,6-tet-
Pentachloroethane (Ethane, pentachloro-) rachloro-)
Tetraethyldithiopyrophosphate
Pentachloronitrobenzene (PCNB) (Benzene,
(Thiodiphosphoric acid, tetraethyl ester)
pentachloronitro-)
Tetraethyl lead (Plumbane, tetraethyl-)
Pentachlorophenol (Phenol, pentachloro-)
Tetraethyl pyrophosphate (Diphosphoric
Phenacetin (Acetamide, N-(4-ethoxyphenyl)-)
acid, tetraethyl ester)
Phenol
Tetranitromethane (Methane, tetranitro-)
Phenylenediamine (Benzenediamine)
Thallium and compounds, N.O.S.
Phenylmercury acetate (Mercury, (acetato- Thallic oxide (Thallium oxide Tl2 O3)
O)phenyl-) Thallium (I) acetate (Acetic acid, thallium (1
Phenylthiourea (Thiourea, phenyl-) + ) salt)
Phosgene (Carbonic dichloride) Thallium (I) carbonate (Carbonic acid,
Phosphine dithallium (1 + ) salt)
Phorate (Phosphorodithioic acid, O,O-diethyl Thallium (I) chloride (Thallium chloride
S-[(ethylthiomethyl] ester) TlCl)
Phthalic acid esters, N.O.S. Thallium (I) nitrate (Nitric acid, thallium (1
Phthalic anhydride (1,3-isobenzofurandione) + ) salt)
2-Picoline (Pyridine, 2-methyl-) Thallium selenite (Selenius acid, dithallium
Polychlorinated biphenyls, N.O.S. (1 + ) salt)
Potassium cyanide (K(CN)) Thallium (I) sulfate (Sulfuric acid, thallium
Potassium silver cyanide (Argentate(l-), (1 + ) salt)
bis(cyano-C)-, potassium) Thioacetamide (Ethanethioamide)
Pronamide (Benzamide, 3,5-dichloro-N-(1,1- 3,Thiofanox (2-Butanone, 3,3-dimethyl-1-
dimethyl-2-propynyl)-) (methylthio)-, O-[(methylamino)carbonyl]
1,3-Propane sultone (1,2-Oxathiolane, 2,2-di- oxime)
oxide) Thiomethanol (Methanethiol)
n-Propylamine (1-Propanamine) Thiophenol (Benzenethiol)
Propargyl alcohol (2-Propyn-1-ol) Thiosemicarbazide
Propylene dichloride (Propane, 1,2-dichloro-) (Hydrazinecarbothioamide)
1,2-Propylenimine (Aziridine, 2-methyl-) Thiourea
Propylthiouracil (4(1H)-Pyrimidinone, 2,3- Thiram (Thioperoxydicarbonic diamide [(H2
dihydro-6-propyl-2-thioxo-) N)C(S)]2S2, tetramethyl-)
Pyridine Toluene (Benzene, methyl-)
Reserpinen (Yohimban-16-carboxylic acid, Toluenediamine (Benzenediamine, ar-meth-
11,17-dimethoxy-18-[(3,4,5- yl-)
trimethoxybenzoyl)oxy]-smethyl ester, Toluene-2,4-diamine (1,3-Benzenediamine, 4-
(3b,16 b,17a,18b,20a)-) methyl-)
Resorcinol (1,3-Benzenediol) Toluene-2,6-diamine (1,3-Benzenediamine, 2-
Saccharin and salts (1,2-Benzisothiazol-3(2H)- methyl-)
one, 1,1-dioxide) Toluene-3,4-diamine (1,2-Benzenediamine, 4-
Safrole (1,3-Benzodioxole, 5-(2-propenyl)-) methyl-)
Selenium and compounds, N.O.S. Toluene diisocyanate (Benzene, 1,3-
Selenium dioxide (Selenious acid) diisocyanatomethyl-)
Selenium sulfide (SeS2) o-Toluidine (Benzenamine, 2-methyl-)
Selenourea o-Toluidine hydrochloride (Benzenamine, 2-

Silver and compounds, N.O.S. methyl-, hydrochloride)
Silver cyanide (Silver cyanide Ag(CN)) p-Toluidine (Benzenamine, 4-methyl-)
35
Pt. 194 40 CFR Ch. I (7–1–21 Edition)
Toxaphene Subpart B—Compliance Certification and
1,2,4-Trichlorobenzene (Benzene, 1,2,4- Re-certification Applications
trichloro-)
1,1,2-Trichloroethane (Ethane, 1,1,2- 194.11 Completeness and accuracy of com-
trichloro-) pliance applications.
Trichloroethylene (Ethene,trichloro-) 194.12 Submission of compliance applica-
Trichloromethanethiol (Methanethiol, tions.
trichloro-) 194.13 Submission of reference materials.
Trichloromonofluoromethane (Methane, 194.14 Content of compliance certification
trichlorofluoro-) application.
2,4,5-Trichlorophenol (Phenol, 2,4,5-trichlo- 194.15 Content of compliance re-certifi-
ro-) cation application(s).
2,4,6-Trichlorophenol (Phenol, 2,4,6-trichlo-
ro-) Subpart C—Compliance Certification and
2,4,5-T (Acetic acid, 2,4,5- trichloro-phenoxy- Re-certification
)
Trichloropropane, N.O.S. GENERAL REQUIREMENTS
1,2,3-Trichloropropane (Propane, 1,2,3- 194.21 Inspections.
trichloro-) 194.22 Quality assurance.
O,O,O-Triethyl phosphorothioate 194.23 Models and computer codes.
(Phosphorothioic acid, O,O,O-triethyl 194.24 Waste characterization.
ester) 194.25 Future state assumptions.
Trinitrobenzene (Benzene, 1,3,5-trinitro-) 194.26 Expert judgment.
Tris(1-aziridinyl)phosphine sulfide 194.27 Peer review.
(Aziridine, 1,1′,1″phosphinothioylidyne-tris-
)) CONTAINMENT REQUIREMENTS
Tris(2,3-dibromopropyl) phosphate (1-Pro- 194.31 Application of release limits.
panol, 2,3-dibromo-, phosphate (3:1)) 194.32 Scope of performance assessments.
Trypan blue (2,7-Naphthalendisulfonic acid, 194.33 Consideration of drilling events in
3,3′-[(3,3′-dimethyl[1,1′-biphenyl]-4,4′- performance assessments.
diyl)bis(azo)]bis(5-amino-4-hydroxy-, 194.34 Results of performance assessments.
tetrasodium salt)
Uracil mustard (2,4-(1H,3H)-Pyrimidinedione, ASSURANCE REQUIREMENTS
5-[bis(2-chloroethyl)amino]-) 194.41 Active institutional controls.
Vanadium pentoxide (Vanadium oxide V2 O5) 194.42 Monitoring.
Vinyl chloride (Ethene, chloro-) 194.43 Passive institutional controls.
Wayfarin (2H-1-Benzopyran-2-one, 4-hydroxy- 194.44 Engineered barriers.
3-(3-oxo-1-phenlybutyl)-) 194.45 Consideration of the presence of re-
Zinc cyanide (Zn(CN)2) sources.
Zinc phosphide (Zn3 P2) 194.46 Removal of waste.
[60 FR 2868, Jan. 11, 1995] INDIVIDUAL AND GROUND-WATER PROTECTION
REQUIREMENTS
PART 194—CRITERIA FOR THE CER- 194.51 Consideration of protected individual.
TIFICATION AND RE-CERTIFI- 194.52 Consideration of exposure pathways.
CATION OF THE WASTE ISOLA- 194.53 Consideration of underground sources
TION PILOT PLANT’S COMPLI- of drinking water.
194.54 Scope of compliance assessments.
ANCE WITH THE 40 CFR PART 191 194.55 Results of compliance assessments.
DISPOSAL REGULATIONS
Subpart D—Public Participation
Subpart A—General Provisions
194.61 Advance notice of proposed rule-
Sec. making for certification.
194.1 Purpose, scope, and applicability. 194.62 Notice of proposed rulemaking for
194.2 Definitions. certification.
194.3 Communications. 194.63 Final rule for certification.
194.4 Conditions of compliance certifi- 194.64 Documentation of continued compli-
cation. ance.
194.5 Publications incorporated by ref- 194.65 Notice of proposed rulemaking for
erence. modification or revocation.
194.6 Alternative provisions. 194.66 Final rule for modification or revoca-
194.7 Effective date. tion.
194.8 Approval process for waste shipment 194.67 Dockets.

from waste generator sites for disposal at APPENDIX A TO PART 194—CERTIFICATION OF
the WIPP. THE WASTE ISOLATION PILOT PLANT’S
36
COMPLIANCE WITH THE 40 CFR PART 191 ant to section 8(d)(1) of the WIPP LWA
DISPOSAL REGULATIONS AND THE 40 CFR or any compliance re-certification ap-
PART 194 COMPLIANCE CRITERIA plications submitted to the Adminis-
AUTHORITY: Pub. L. 102–579, 106 Stat. 4777, trator pursuant to section 8(f) of the
as amended by Pub. L. 104–201,110 Stat. 2422; WIPP LWA.
Reorganization Plan No. 3 of 1970, 35 FR Compliance assessment(s) means the
15623, Oct. 6, 1970, 5 U.S.C. app. 1; Atomic En- analysis conducted to determine com-
ergy Act of 1954, as amended, 42 U.S.C. 2011–
pliance with § 191.15, and part 191, sub-
2296 and 10101–10270.
part C of this chapter.
SOURCE: 61 FR 5235, Feb. 9, 1996, unless oth- Delaware Basin means those surface
erwise noted. and subsurface features which lie in-
side the boundary formed to the north,
Subpart A—General Provisions east and west of the disposal system by
the innermost edge of the Capitan
§ 194.1 Purpose, scope, and applica- Reef, and formed, to the south, by a
bility. straight line drawn from the south-
This part specifies criteria for the eastern point of the Davis Mountains
certification or any re-certification, or to the most southwestern point of the
subsequent actions relating to the Glass Mountains.
terms or conditions of certification of Deep drilling means those drilling
the Department of Energy’s Waste Iso- events in the Delaware Basin that
lation Pilot Plant’s compliance with reach or exceed a depth of 2,150 feet
the disposal regulations found at part below the surface relative to where
191 of this chapter and pursuant to sec- such drilling occurred.
tion 8(d)(1) and section 8(f), respec- Department means the United States
tively, of the WIPP LWA. The compli- Department of Energy.
ance certification application sub- Disposal regulations means part 191,
mitted pursuant to section 8(d)(1) of subparts B and C of this chapter.
the WIPP LWA and any compliance re- Management systems review means the
certification application submitted qualitative assessment of a data collec-
pursuant to section 8(f) of the WIPP tion operation or organization(s) to es-
LWA shall comply with the require- tablish whether the prevailing quality
ments of this part. management structure, policies, prac-
tices, and procedures are adequate to
§ 194.2 Definitions. ensure that the type and quality of
Unless otherwise indicated in this data needed are obtained.
part, all terms have the same meaning Minor alternative provision means an
as in part 191 of this chapter. alternative provision to the Compli-
Acceptable knowledge means any in- ance Criteria that only clarifies an ex-
formation about the process used to isting regulatory provision, or does not
generate waste, material inputs to the substantively alter the existing regu-
process, and the time period during latory requirements.
which the waste was generated, as well Modification means action(s) taken by
as data resulting from the analysis of the Administrator that alters the
waste, conducted prior to or separate terms or conditions of certification
from the waste certification process pursuant to section 8(d)(1) of the WIPP
authorized by EPA’s Certification De- LWA. Modification of any certification
cision, to show compliance with Condi- shall comply with this part and part
tion 3 of the certification decision (ap- 191 of this chapter.
pendix A of this part). Population of CCDFs means all pos-
Administrator’s authorized representa- sible complementary, cumulative dis-
tive means the director in charge of ra- tribution functions (CCDFs) that can
diation programs at the Agency. be generated from all disposal system
Certification means any action taken parameter values used in performance
by the Administrator pursuant to sec- assessments.
tion 8(d)(1) of the WIPP LWA. Population of estimates means all pos-
Compliance application(s) means the sible estimates of radiation doses and

compliance certification application radionuclide concentrations that can
submitted to the Administrator pursu- be generated from all disposal system
37
§ 194.3 40 CFR Ch. I (7–1–21 Edition)
parameter values used in compliance WIPP LWA means the Waste Isola-
assessments. tion Pilot Plant Land Withdrawal Act
Quality assurance means those of 1992 (Pub.L. 102–579, 106 Stat. 4777).
planned and systematic actions nec- [61 FR 5235, Feb. 9, 1996, as amended at 63 FR
essary to provide adequate confidence 27404, May 18, 1998; 69 FR 42580, July 16, 2004]
that the disposal system will comply
with the disposal regulations set forth § 194.3 Communications.
in part 191 of this chapter. Quality as- (a) Compliance application(s) shall
surance includes quality control, which be:
comprises those actions related to the (1) Addressed to the Administrator;
physical characteristics of a material, and
structure, component, or system that (2) Signed by the Secretary.
provide a means to control the quality (b) Communications and reports con-
of the material, structure, component, cerning the criteria in this part shall
or system to predetermined require- be:
ments. (1) Addressed to the Administrator or
Re-certification means any action the Administrator’s authorized rep-
taken by the Administrator pursuant resentative; and
to section 8(f) of the WIPP LWA. (2) Signed by the Secretary or the
Regulatory time frame means the time Secretary’s authorized representative.
period beginning at disposal and ending
§ 194.4 Conditions of compliance cer-
10,000 years after disposal. tification.
Revocation means any action taken
by the Administrator to terminate the (a) Any certification of compliance
certification pursuant to section 8(d)(1) issued pursuant to section 8(d)(1) of the
of the WIPP LWA. WIPP LWA may include such condi-
tions as the Administrator finds nec-
Secretary means the Secretary of En-
essary to support such certification.
ergy.
(b) Whether stated therein or not, the
Shallow drilling means those drilling following conditions shall apply in any
events in the Delaware Basin that do such certification:
not reach a depth of 2,150 feet below (1) The certification shall be subject
the surface relative to where such drill- to modification, suspension or revoca-
ing occurred. tion by the Administrator. Any suspen-
Suspension means any action taken sion of the certification shall be done
by the Administrator to withdraw, for at the discretion of the Administrator.
a limited period of time, the certifi- Any modification or revocation of the
cation pursuant to section 8(d)(1) of the certification shall be done by rule pur-
WIPP LWA. suant to 5 U.S.C. 553. If the Adminis-
Waste means the radioactive waste, trator revokes the certification, the
radioactive material and coincidental Department shall retrieve, as soon as
material subject to the requirements of practicable and to the extent prac-
part 191 of this chapter. ticable, any waste emplaced in the dis-
Waste characteristic means a property posal system.
of the waste that has an impact on the (2) Any time after the Administrator
containment of waste in the disposal issues a certification, the Adminis-
system. trator or the Administrator’s author-
ized representative may submit a writ-
Waste component means an ingredient
ten request to the Department for in-
of the total inventory of the waste that
formation to enable the Administrator
influences a waste characteristic. to determine whether the certification
WIPP means the Waste Isolation should be modified, suspended or re-
Pilot Plant, as authorized pursuant to voked. Unless otherwise specified by
section 213 of the Department of En- the Administrator or the Administra-
ergy National Security and Military tor’s authorized representative, the De-
Applications of Nuclear Energy Au- partment shall submit such informa-

thorization Act of 1980 (Pub. L. 96–164; tion to the Administrator or the Ad-
93 Stat. 1259, 1265). ministrator’s authorized representative
38
within 30 calendar days of receipt of (C) Time and date of the release or
the request. the estimated time of the expected re-
(3) Any time after the Administrator lease;
issues a certification, the Department (D) Assessment of the hazard posed
shall report any planned or unplanned by the release or the expected release;
changes in activities or conditions per- and
taining to the disposal system that dif- (E) Additional information requested
fer significantly from the most recent by the Administrator or the Adminis-
compliance application. trator’s authorized representative.
(i) The Department shall inform the (iv) The Department may resume em-
placement of waste in the disposal sys-
Administrator, in writing, prior to
tem upon written notification that the
making such a planned change in activ-
suspension has been lifted by the Ad-
ity or disposal system condition.
ministrator.
(ii) In the event of an unplanned (v) If the Department discovers a
change in activity or condition, the De- condition or activity that differs sig-
partment shall immediately cease em- nificantly from what is indicated in the
placement of waste in the disposal sys- most recent compliance application,
tem if the Department determines that but does not involve conditions or ac-
one or more of the following conditions tivities listed in paragraph (b)(3)(ii) of
is true: this section, then the difference shall
(A) The containment requirements be reported, in writing, to the Adminis-
established pursuant to § 191.13 of this trator within 10 calendar days of its
chapter have been or are expected to be discovery.
exceeded; (vi) Following receipt of notification,
(B) Releases from already-emplaced the Administrator will notify the Sec-
waste lead to committed effective retary in writing whether any condi-
doses that are or are expected to be in tion or activity reported pursuant to
excess of those established pursuant to paragraph (b)(3) this section:
§ 191.15 of this chapter. For purposes of (A) Does not comply with the terms
this paragraph (b)(3)(ii)(B), emissions of the certification; and, if it does not
from operations covered pursuant to comply,
part 191, subpart A of this chapter are (B) Whether the compliance certifi-
not included; or cation must be modified, suspended or
(C) Releases have caused or are ex- revoked. The Administrator or the Ad-
pected to cause concentrations of ministrator’s authorized representative
radionuclides or estimated doses due to may request additional information be-
radionuclides in underground sources fore determining whether modification,
of drinking water in the accessible en- suspension or revocation of the compli-
vironment to exceed the limits estab- ance certification is required.
lished pursuant to part 191, subpart C (4) Not later than six months after
the Administrator issues a certifi-
of this chapter.
cation, and at least annually there-
(iii) If the Department determines
after, the Department shall report to
that a condition described in paragraph the Administrator, in writing, any
(b)(3)(ii) of this section has occurred or changes in conditions or activities per-
is expected to occur, the Department taining to the disposal system that
shall notify the Administrator, in writ- were not required to be reported by
ing, within 24 hours of the determina- paragraph (b)(3) of this section and
tion. Such notification shall, to the ex- that differ from information contained
tent practicable, include the following in the most recent compliance applica-
information: tion.
(A) Identification of the location and
environmental media of the release or § 194.5 Publications incorporated by
the expected release; reference.
(B) Identification of the type and (a) The following publications are in-
quantity of waste (in activity in curies corporated into this part by reference:
of each radionuclide) released or ex- (1) U.S. Nuclear Regulatory Commis-
pected to be released; sion, NUREG–1297 ‘‘Peer Review for
39
§ 194.6 40 CFR Ch. I (7–1–21 Edition)
High-Level Nuclear Waste Reposi- § 194.6 Alternative provisions.

tories,’’ published February 1988; incor-
The Administrator may, by rule pur-
poration by reference (IBR) approved
suant to 5 U.S.C. 553, substitute for any
for §§ 194.22, 194.23 and 194.27.
of the provisions of this part alter-
(2) American Society of Mechanical
native provisions, or minor alternative
Engineers (ASME) Nuclear Quality As-
provisions, in accordance with the fol-
surance (NQA) Standard, NQA–1–1989
lowing procedures:
edition, ‘‘Quality Assurance Program
Requirements for Nuclear Facilities;’’ (a) Alternative provisions may be
IBR approved for § 194.22. substituted after:
(3) ASME NQA–2a–1990 addenda, part (1) Alternative provisions have been
2.7, to ASME NQA–2–1989 edition proposed for public comment in the
‘‘Quality Assurance Requirements for FEDERAL REGISTER together with infor-
Nuclear Facility Applications;’’ IBR mation describing how the alternative
approved for § 194.22 and § 194.23. provisions comport with the disposal
(4) ASME NQA–3–1989 edition, ‘‘Qual- regulations, the reasons why the exist-
ity Assurance Program Requirements ing provisions of this part appear inap-
for the Collection of Scientific and propriate, and the costs, risks and ben-
Technical Information for Site Charac- efits of compliance in accordance with
terization of High-Level Nuclear Waste the alternative provisions;
Repositories’’ (excluding section 2.1 (b) (2) A public comment period of at
and (c)); IBR approved for § 194.22. least 120 days has been completed and
(b) The publications listed in para- public hearings have been held in New
graph (a) of this section were approved Mexico;
for incorporation by reference by the (3) The public comments received
Director of the Federal Register in ac- have been fully considered; and
cordance with 5 U.S.C. 552(a) and 1 CFR (4) A notice of final rulemaking is
part 51. Copies may be inspected or ob- published in the FEDERAL REGISTER.
tained from the Air Docket, Docket (b) Minor alternative provisions may
No. A–92–56, room M1500 (LE131), U.S. be substituted after:
Environmental Protection Agency, 1200 (1) The minor alternative provisions
Pennsylvania Ave., NW., Washington, have been proposed for public comment
DC 20460, or copies may be inspected at in the FEDERAL REGISTER together with
the National Archives and Records Ad- information describing how they com-
ministration (NARA). For information port with the disposal regulations, the
on the availability of this material at reasons why the existing provisions of
NARA, call 202–741–6030, or go to: http:// this part appear inappropriate, and the
www.archives.gov/federallregister/ benefit of compliance in accordance
codeloflfederallregulations/ with the minor alternative provision;
ibrllocations.html. or copies may be ob- (2) A public comment period of at
tained from the following addresses: least 30 days has been completed for
(1) For ASME standards, contact the minor alternative provisions and
American Society of Mechanical Engi- the public comments received have
neers, 22 Law Drive, P.O. Box 2900, been fully considered;
Fairfield, NJ 07007–2900, phone 1–800–
(3) A notice of final rulemaking is
843–2763.
published in the FEDERAL REGISTER for
(2) For Nuclear Regulatory Commis-
the minor alternative provisions.
sion documents, contact Division of In-
formation Support Services, Distribu- [69 FR 42581, July 16, 2004]
tion Service, U.S. Nuclear Regulatory
Commission, Washington, DC 20555, or § 194.7 Effective date.
contact National Technical Informa- The criteria in this part shall be ef-
tion Service, 5285 Port Royal Road, fective on April 9, 1996. The incorpora-
Springfield, VA 22161, phone 703–487– tion by reference of certain publica-
4650. tions listed in the criteria is approved

[61 FR 5235, Feb. 9, 1996, as amended at 65 FR by the Director of the Federal Register
47325, Aug. 2, 2000; 69 FR 18803, Apr. 9, 2004] as of April 9, 1996.
40
§ 194.8 Approval process for waste in accordance with §§ 194.21 and

shipment from waste generator 194.22(e), to confirm the continued com-
sites for disposal at the WIPP. pliance of the programs approved under
(a) Quality Assurance Programs at paragraphs (a)(2) and (a)(3) of this sec-
Waste Generator Sites. The Agency will tion. The results of such inspections
determine compliance with require- will be made available to the public
ments for site-specific quality assur- through the Agency’s public dockets,
ance programs as set forth below: as described in § 194.67.
(1) Upon submission by the Depart- (b) Waste characterization programs at
ment of a site-specific quality assur- transuranic waste sites. The Agency will
ance program plan the Agency will establish compliance with Condition 3
evaluate the plan to determine whether of the certification using the following
it establishes the applicable Nuclear process:
Quality Assurance (NQA) requirements (1) DOE will implement waste char-
of § 194.22(a)(1) for the items and activi- acterization programs and processes in
ties of §§ 194.22(a)(2)(i), 194.24(c)(3) and accordance with § 194.24(c)(4) to confirm
194.24(c)(5). The program plan and other that the total amount of each waste
documentation submitted by the De- component that will be emplaced in
partment will be placed in the dockets the disposal system will not exceed the
described in § 194.67. upper limiting value or fall below the
(2) The Agency will conduct a quality lower limiting value described in the
assurance audit or an inspection of a introductory text of § 194.24(c). Waste
Department quality assurance audit at characterization processes will include
the relevant site for the purpose of the collection and use of acceptable
verifying proper execution of the site- knowledge; destructive and/or non-
specific quality assurance program destructive techniques for identifying
plan. The Agency will publish a notice and measuring waste components; and
in the FEDERAL REGISTER announcing a the validation, control, and trans-
scheduled inspection or audit. In that mittal to the WIPP Waste Information
or another notice, the Agency will also System database of waste characteriza-
solicit public comment on the quality tion data, in accordance with
assurance program plan and appro- § 194.24(c)(4).
priate Department documentation de- (2) The Agency will verify the com-
scribed in paragraph (a)(1) of this sec- pliance of waste characterization pro-
tion. A public comment period of at grams and processes identified in para-
least 30 days will be allowed. graph (b)(1) of this section at sites
(3) The Agency’s written decision re- without EPA approval prior to October
garding compliance with the requisite 14, 2004, using the following process:
quality assurance requirements at a (i) DOE will notify EPA by letter
waste generator site will be conveyed that a transuranic waste site is pre-
in a letter from the Administrator’s pared to ship waste to the WIPP and
authorized representative to the De- has established adequate waste charac-
partment. No such compliance deter- terization processes and programs.
mination shall be granted until after DOE also will provide the relevant
the end of the public comment period waste characterization program plans
described in paragraph (a)(2) of this and documentation. EPA may request
section. A copy of the Agency’s compli- additional information from DOE.
ance determination letter will be (ii) EPA will conduct a baseline com-
placed in the public dockets in accord- pliance inspection at the site to verify
ance with § 194.67. The results of any in- that adequate waste characterization
spections or audits conducted by the program plans and technical proce-
Agency to evaluate the quality assur- dures have been established, and that
ance programs described in paragraph those plans and procedures are effec-
(a)(1) of this section will also be placed tively implemented. The inspection
in the dockets described in § 194.67. will include a demonstration or test by
(4) Subsequent to any positive deter- the site of the waste characterization
mination of compliance as described in processes identified in paragraph (b)(1)

paragraph (a)(3) of this section, the of this section. If an inspection does
Agency intends to conduct inspections, not lead to approval, we will send an
41
§ 194.8 40 CFR Ch. I (7–1–21 Edition)
inspection report to DOE identifying public in the dockets described in

deficiencies and place the report in the § 194.67.
public docket described in § 194.67. More (4) Subsequent to any positive deter-
than one inspection may be necessary mination of compliance as described in
to resolve compliance issues. paragraph (b)(2)(iv) of this section, the
(iii) The Agency will announce in the Department must report changes or ex-
FEDERAL REGISTER a proposed Baseline pansions to the approved waste charac-
Compliance Decision to accept the terization program at a site in accord-
site’s compliance with § 194.24(c)(4). We ance with the tier designations estab-
will place the inspection report(s) and lished in the Baseline Compliance Deci-
any supporting documentation in the sion.
public docket described in § 194.67. The (i) For changes or expansions to the
site inspection report supporting the waste characterization program des-
proposal will describe any limitations ignated as ‘‘Tier 1,’’ the Department
on approved waste streams or waste shall provide written notification to
characterization processes. It will also the Agency. The Department shall not
identify (through tier designations in ship for disposal at WIPP any waste
accordance with paragraph (b)(4) of that has been characterized using the
this section) what changes to the ap- new or revised processes, equipment, or
proved waste characterization proc- waste streams until EPA has provided
esses must be reported to and approved written approval of such new or revised
by EPA before they can be imple- systems.
(ii) For changes or expansions to the
mented. In the notice, we will solicit
waste characterization program des-
public comment (for a minimum of 45
ignated as ‘‘Tier 2,’’ the Department
days) on the proposed Baseline Compli-
shall provide written notification to
ance Decision, including any limita-
the Agency. Waste characterized using
tions and the tier designations for fu-
the new or revised processes, equip-
ture changes or expansions to the site’s
ment, or waste streams may be dis-
waste characterization program.
posed at WIPP without written EPA
(iv) Our written decision regarding approval.
compliance with the requirements for (iii) EPA may conduct inspections in
waste characterization programs and accordance with § 194.24(h) to evaluate
processes described in paragraph (b)(1) the implementation of Tier 1 and Tier
of this section will be conveyed in a 2 changes or expansions to the waste
letter from the Administrator’s au- characterization program at a site.
thorized representative to DOE. EPA (iv) Waste characterization program
will not issue a compliance decision changes or expansions that are not
until after the end of the public com- identified as either ‘‘Tier 1’’ or ‘‘Tier 2’’
ment period described in paragraph will not require written notification by
(b)(2)(iii) of this section. EPA’s compli- the Department to the Agency before
ance decision will respond to signifi- implementation or before shipping
cant and timely-received comments. A waste for disposal at WIPP.
copy of our compliance decision will be (5) Subsequent to any positive deter-
placed in the public docket described in mination of compliance as described in
§ 194.67. DOE will comply with any re- paragraph (b)(2)(iii) of this section,
quirements identified in the compli- EPA may revise the tier designations
ance decision and the accompanying for approving changes or expansions to
inspection report. the waste characterization program at
(3) Subsequent to any positive deter- a site using the following process:
mination of compliance as described in (i) The Agency shall announce the
paragraph (b)(2)(iv) of this section, the proposed tier changes in a letter to the
Agency intends to conduct inspections, Department. The letter will describe
in accordance with § 194.24(h), to con- the Agency’s reasons for the proposed
firm the continued compliance of ap- change in tier designation(s). The let-
proved waste characterization pro- ter and any supporting inspection re-
grams and processes at transuranic port(s) or other documentation will be

waste sites. EPA will make the results placed in the dockets described in
of these inspections available to the § 194.67.
42
(ii) If the revised designation entails in this paragraph (c). Approvals for a
more stringent notification and ap- site to characterize and dispose of
proval requirements (e.g., from Tier 2 transuranic waste at WIPP will pro-
to Tier 1, or from undesignated to Tier ceed according to this section only
2), the change shall become effective until EPA has conducted a baseline
immediately and the site shall operate compliance inspection and provided a
under the more stringent requirements Baseline Compliance Decision for a site
without delay. under paragraph (b)(2) of this section.
(iii) If the revised designated entails (1) For each waste stream or group of
less stringent notification and approval waste streams at a site, the Depart-
requirements, (e.g., from Tier 1 to Tier ment must:
2, or from Tier 2 to undesignated), EPA (i) Provide information on how proc-
will solicit comments from the public ess knowledge will be used for waste
for a minimum of 30 days. The site will characterization of the waste stream(s)
continue to operate under the more proposed for disposal at the WIPP; and
stringent approval requirements until (ii) Implement a system of controls
the public comment period is closed at the site, in accordance with
and EPA notifies DOE in writing of the § 194.24(c)(4), to confirm that the total
Agency’s final decision. amount of each waste component that
(6) A waste generator site that EPA will be emplaced in the disposal system
approved for characterizing and dis- will not exceed the upper limiting
posing transuranic waste at the WIPP value or fall below the lower limiting
under this section prior to October 14, value described in the introductory
2004, may continue characterizing and text of § 194.24(c). The implementation
disposing such waste at the WIPP of such a system of controls shall in-
under paragraph (c) of this section clude a demonstration that the site has
until EPA has conducted a baseline procedures in place for adding data to
compliance inspection and provided a the WIPP Waste Information System
Baseline Compliance Decision under (‘‘WWIS’’), and that such information
paragraph (b)(2) of this section. can be transmitted from that site to
(i) Until EPA provides a Baseline the WWIS database; and a demonstra-
Compliance Decision for such a site, tion that measurement techniques and
EPA may approve additional trans- control methods can be implemented in
uranic waste streams for disposal at accordance with § 194.24(c)(4) for the
WIPP under the provisions of para- waste stream(s) proposed for disposal
graph (c) of this section. Prior to the at the WIPP.
effective date of EPA’s Baseline Com- (2) The Agency will conduct an audit
pliance Decision for such a site, EPA or an inspection of a Department audit
will continue to conduct inspections of for the purpose of evaluating the use of
the site in accordance with § 194.24(c). process knowledge and the implemen-
(ii) EPA shall conduct a baseline tation of a system of controls for each
compliance inspection and issue a waste stream or group of waste
Baseline Compliance Decision for such streams at a waste generator site. The
previously approved sites in accord- Agency will announce a scheduled in-
ance with the provisions of paragraph spection or audit by the Agency with a
(b) of this section, except that the site notice in the FEDERAL REGISTER. In
shall not be required to provide written that or another notice, the Agency will
notification of readiness as described also solicit public comment on the rel-
in paragraph (b)(2)(i) of this section. evant waste characterization program
(c) Waste characterization programs at plans and Department documentation,
waste generator sites with prior approval. which will be placed in the dockets de-
For a waste generator site that EPA scribed in § 194.67. A public comment
approved for characterizing and dis- period of at least 30 days will be al-
posing transuranic waste at the WIPP lowed.
under this section prior to October 14, (3) The Agency’s written decision re-
2004, the Agency will determine com- garding compliance with the require-
pliance with the requirements for use ments for waste characterization pro-
of process knowledge and a system of grams described in paragraph (b)(1) of
controls at waste generator sites as set this section for one or more waste
43
§ 194.11 40 CFR Ch. I (7–1–21 Edition)
streams from a waste generator site printed form to the Administrator’s

will be conveyed in a letter from the authorized representative. These paper
Administrator’s authorized representa- copies are intended for the official
tive to the Department. No such com- docket in Washington, DC, as well as
pliance determination shall be granted the four informational dockets in Albu-
until after the end of the public com- querque and Santa Fe, New Mexico. In
ment period described in paragraph addition, DOE shall submit 10 copies of
(b)(2) of this section. A copy of the the complete application in alternative
Agency’s compliance determination format (e.g., compact disk) or other ap-
letter will be placed in the public dock- proved format, as specified by the Ad-
ets in accordance with § 194.67. The re- ministrator’s authorized representa-
sults of any inspections or audits con- tive.
ducted by the Agency to evaluate the
[69 FR 42582, July 16, 2004]
plans described in paragraph (b)(1) of
this section will also be placed in the § 194.13 Submission of reference mate-
dockets described in § 194.67. rials.
(4) Subsequent to any positive deter-
Information may be included by ref-
mination of compliance as described in
erence into compliance applications(s),
paragraph (b)(3) of this section, the
provided that the references are clear
Agency intends to conduct inspections,
specific and that unless, otherwise
in accordance with §§ 194.21 and
specified by the Administrator or the
194.24(h), to confirm the continued
Administrator’s authorized representa-
compliance of the programs approved
tive, 5 copies of reference information
under paragraphs (b)(2) and (b)(3) of
are submitted to the Administrator’s
this section. The results of such inspec-
authorized representative. These paper
tions will be made available to the pub-
copies are intended for the official
lic through the Agency’s public dock-
docket in Washington, DC, as well as
ets, as described in § 194.67.
the four informational dockets in Albu-
[63 FR 27404, May 18, 1998, as amended at 69 querque and Santa Fe, New Mexico.
FR 42581, July 16, 2004] Reference materials that are widely
available in standard text books or ref-
Subpart B—Compliance Certifi- erence books need not to be submitted.
cation and Re-certification Whenever possible, DOE shall submit 10
Applications copies of reference materials in alter-
native format (e.g., compact disk) or
§ 194.11 Completeness and accuracy of other approved format, as specified by
compliance applications. the Administrator’s authorized rep-
resentative.
Information provided to the Adminis-
trator in support of any compliance ap- [69 FR 42582, July 16, 2004]
plication shall be complete and accu-
rate. The Administrator’s evaluation § 194.14 Content of compliance certifi-
for certification pursuant to section cation application.
8(d)(1)(B) of the WIPP LWA and evalua- Any compliance application shall in-
tion for recertification pursuant to sec- clude:
tion 8(f)(2) of the WIPP LWA shall not (a) A current description of the nat-
begin until the Administrator has noti- ural and engineered features that may
fied the Secretary, in writing, that a affect the performance of the disposal
complete application in accordance system. The description of the disposal
with this part has been received. system shall include, at a minimum,
the following information:
§ 194.12 Submission of compliance ap- (1) The location of the disposal sys-
plications. tem and the controlled area;
Unless otherwise specified by the Ad- (2) A description of the geology, geo-
ministrator or the Administrator’s au- physics, hydrogeology, hydrology, and
thorized representative, 5 copies of any geochemistry of the disposal system
compliance application(s), any accom- and its vicinity and how these condi-
panying materials, and any amend- tions are expected to change and inter-
ments thereto shall be submitted in a act over the regulatory time frame.
44
Such description shall include, at a of the controlled area and the location
minimum: of any active, inactive, and abandoned
(i) Existing fluids and fluid hydraulic injection and withdrawal wells in the
potential, including brine pockets, in controlled area and in the vicinity of
and near the disposal system; and the disposal system.
(ii) Existing higher permeability an- (i) A description of past and current
hydrite interbeds located at or near the climatologic and meteorologic condi-
horizon of the waste. tions in the vicinity of the disposal
(3) The presence and characteristics system and how these conditions are
of potential pathways for transport of expected to change over the regulatory
waste from the disposal system to the time frame.
accessible environment including, but (j) The information required else-
not limited to: Existing boreholes, so- where in this part or any additional in-
lution features, breccia pipes, and formation, analyses, tests, or records
other potentially permeable features, determined by the Administrator or
such as interbeds. the Administrator’s authorized rep-
(4) The projected geophysical, resentative to be necessary for deter-
hydrogeologic and geochemical condi- mining compliance with this part.
tions of the disposal system due to the
presence of waste including, but not § 194.15 Content of compliance re-cer-
limited to, the effects of production of tification application(s).
heat or gases from the waste. (a) In submitting documentation of
(b) A description of the design of the continued compliance pursuant to sec-
disposal system including: tion 8(f) of the WIPP LWA, the pre-
(1) Information on materials of con- vious compliance application shall be
struction including, but not limited to: updated to provide sufficient informa-
Geologic media, structural materials, tion for the Administrator to deter-
engineered barriers, general arrange- mine whether or not the WIPP con-
ment, and approximate dimensions; tinues to be in compliance with the dis-
and posal regulations. Updated documenta-
(2) Computer codes and standards tion shall include:
that have been applied to the design (1) All additional geologic, geo-
and construction of the disposal sys- physical, geochemical, hydrologic, and
tem. meteorologic information;
(c) Results of assessments conducted (2) All additional monitoring data,
pursuant to this part. analyses and results;
(d) A description of input parameters (3) All additional analyses and re-
associated with assessments conducted sults of laboratory experiments con-
pursuant to this part and the basis for ducted by the Department or its con-
selecting those input parameters. tractors as part of the WIPP program;
(e) Documentation of measures taken (4) An identification of any activities
to meet the assurance requirements of or assumptions that deviate from the
this part. most recent compliance application;
(f) A description of waste acceptance (5) A description of all waste em-
criteria and actions taken to assure ad- placed in the disposal system since the
herence to such criteria. most recent compliance certification
(g) A description of background radi- or re-certification application. Such
ation in air, soil and water in the vicin- description shall consist of a descrip-
ity of the disposal system and the pro- tion of the waste characteristics and
cedures employed to determine such waste components identified in
radiation. §§ 194.24(b)(1) and 194.24(b)(2);
(h) One or more topographic map(s) (6) Any significant information not
of the vicinity of the disposal system. previously included in a compliance
The contour interval shall be sufficient certification or re-certification appli-
to show clearly the pattern of surface cation related to whether the disposal
water flow in the vicinity of the dis- system continues to be in compliance
posal system. The map(s) shall include with the disposal regulations; and
standard map notations and symbols, (7) Any additional information re-
and, in addition, shall show boundaries quested by the Administrator or the
45
§ 194.21 40 CFR Ch. I (7–1–21 Edition)
Administrator’s authorized representa- when conducting activities pursuant to

tive. this section.
(b) To the extent that information
required for a re-certification of com- § 194.22 Quality assurance.
pliance remains valid and has been sub- (a)(1) As soon as practicable after
mitted in previous certification or re- April 9, 1996, the Department shall ad-
certification application(s), such infor- here to a quality assurance program
mation need not be duplicated in subse- that implements the requirements of
quent applications; such information ASME NQA–1–1989 edition, ASME NQA–
may be summarized and referenced. 2a-1990 addenda, part 2.7, to ASME
NQA–2–1989 edition, and ASME NQA–3–
Subpart C—Compliance 1989 edition (excluding Section 2.1 (b)
Certification and Re-certification and (c), and Section 17.1). (Incorpora-
tion by reference as specified in § 194.5.)
GENERAL REQUIREMENTS (2) Any compliance application shall
include information which dem-
§ 194.21 Inspections. onstrates that the quality assurance
(a) The Administrator or the Admin- program required pursuant to para-
istrator’s authorized representative(s) graph (a)(1) of this section has been es-
shall, at any time: tablished and executed for:
(1) Be afforded unfettered and unan- (i) Waste characterization activities
nounced access to inspect any area of and assumptions;
the WIPP, and any locations per- (ii) Environmental monitoring, moni-
forming activities that provide infor- toring of the performance of the dis-
mation relevant to compliance applica- posal system, and sampling and anal-
tion(s), to which the Department has ysis activities;
rights of access. Such access shall be (iii) Field measurements of geologic
equivalent to access afforded Depart- factors, ground water, meteorologic,
ment employees upon presentation of and topographic characteristics;
credentials and other required docu- (iv) Computations, computer codes,
ments. models and methods used to dem-
(2) Be allowed to obtain samples, in- onstrate compliance with the disposal
cluding split samples, and to monitor regulations in accordance with the pro-
and measure aspects of the disposal visions of this part;
system and the waste proposed for dis- (v) Procedures for implementation of
posal in the disposal system. expert judgment elicitation used to
(b) Records (including data and other support applications for certification
information in any form) kept by the or re-certification of compliance;
Department pertaining to the WIPP (vi) Design of the disposal system and
shall be made available to the Admin- actions taken to ensure compliance
istrator or the Administrator’s author- with design specifications;
ized representative upon request. If re- (vii) The collection of data and infor-
quested records are not immediately mation used to support compliance ap-
available, they shall be delivered with- plication(s); and
in 30 calendar days of the request. (viii) Other systems, structures, com-
(c) The Department shall, upon re- ponents, and activities important to
quest by the Administrator or the Ad- the containment of waste in the dis-
ministrator’s authorized representa- posal system.
tive, provide permanent, private office (b) Any compliance application shall
space that is accessible to the disposal include information which dem-
system. The office space shall be for onstrates that data and information
the exclusive use of the Administrator collected prior to the implementation
or the Administrator’s authorized rep- of the quality assurance program re-
resentative(s). quired pursuant to paragraph (a)(1) of
(d) The Administrator or the Admin- this section have been qualified in ac-
istrator’s authorized representative(s) cordance with an alternate method-
shall comply with applicable access ology, approved by the Administrator

control measures for security, radio- or the Administrator’s authorized rep-
logical protection, and personal safety resentative, that employs one or more
46
of the following methods: Peer review, (1) A description of the conceptual

conducted in a manner that is compat- models and scenario construction used
ible with NUREG–1297, ‘‘Peer Review to support any compliance application.
for High-Level Nuclear Waste Reposi- (2) A description of plausible, alter-
tories,’’ published February 1988 (incor- native conceptual model(s) seriously
poration by reference as specified in considered but not used to support such
§ 194.5); corroborating data; confirm- application, and an explanation of the
atory testing; or a quality assurance reason(s) why such model(s) was not
program that is equivalent in effect to deemed to accurately portray perform-
ASME NQA–1–1989 edition, ASME NQA– ance of the disposal system.
2a–1990 addenda, part 2.7, to ASME (3) Documentation that:
NQA–2–1989 edition, and ASME NQA–3– (i) Conceptual models and scenarios
1989 edition (excluding Section 2.1 (b) reasonably represent possible future
and (c) and Section 17.1). (Incorpora- states of the disposal system;
tion by reference as specified in § 194.5.) (ii) Mathematical models incorporate
(c) Any compliance application shall equations and boundary conditions
provide, to the extent practicable, in- which reasonably represent the mathe-
formation which describes how all data matical formulation of the conceptual
used to support the compliance appli- models;
cation have been assessed for their (iii) Numerical models provide nu-
quality characteristics, including: merical schemes which enable the
(1) Data accuracy, i.e., the degree to mathematical models to obtain stable
which data agree with an accepted ref- solutions;
erence or true value; (iv) Computer models accurately im-
(2) Data precision, i.e., a measure of plement the numerical models; i.e.,
the mutual agreement between com- computer codes are free of coding er-
parable data gathered or developed rors and produce stable solutions;
under similar conditions expressed in (v) Conceptual models have under-
terms of a standard deviation; gone peer review according to § 194.27.
(3) Data representativeness, i.e., the (b) Computer codes used to support
degree to which data accurately and any compliance application shall be
precisely represent a characteristic of documented in a manner that complies
a population, a parameter, variations with the requirements of ASME NQA–
at a sampling point, or environmental 2a–1990 addenda, part 2.7, to ASME
conditions; NQA–2–1989 edition. (Incorporation by
(4) Data completeness, i.e., a measure reference as specified in § 194.5.)
of the amount of valid data obtained (c) Documentation of all models and
compared to the amount that was ex- computer codes included as part of any
pected; and compliance application performance
(5) Data comparability, i.e., a meas- assessment calculation shall be pro-
ure of the confidence with which one vided. Such documentation shall in-
data set can be compared to another. clude, but shall not be limited to:
(d) Any compliance application shall (1) Descriptions of the theoretical
provide information which dem- backgrounds of each model and the
onstrates how all data are qualified for method of analysis or assessment;
use in the demonstration of compli- (2) General descriptions of the mod-
ance. els; discussions of the limits of applica-
(e) The Administrator will verify ap- bility of each model; detailed instruc-
propriate execution of quality assur- tions for executing the computer codes,
ance programs through inspections, including hardware and software re-
record reviews and record keeping requirements, input and output formats
quirements, which may include, but with explanations of each input and
may not be limited to, surveillance, au- output variable and parameter (e.g.,
dits and management systems reviews. parameter name and units); listings of
input and output files from a sample
§ 194.23 Models and computer codes. computer run; and reports on code
(a) Any compliance application shall verification, benchmarking, validation,
include: and quality assurance procedures;
47
§ 194.24 40 CFR Ch. I (7–1–21 Edition)
(3) Detailed descriptions of the struc- formation of colloidal suspensions con-

ture of computer codes and complete taining radionuclides; production of
listings of the source codes; gas from the waste; shear strength;
(4) Detailed descriptions of data col- compactability; and other waste-re-
lection procedures, sources of data, lated inputs into the computer models
data reduction and analysis, and code that are used in the performance as-
input parameter development; sessment.
(5) Any necessary licenses; and (2) That all waste components influ-
(6) An explanation of the manner in encing the waste characteristics identi-
which models and computer codes in- fied in paragraph (b)(1) of this section
corporate the effects of parameter cor- have been identified and assessed for
relation. their impact on disposal system per-
(d) The Administrator or the Admin- formance. The components to be ana-
istrator’s authorized representative lyzed shall include, but shall not be
may verify the results of computer limited to: metals; cellulosics;
simulations used to support any com- chelating agents; water and other liq-
pliance application by performing inde- uids; and activity in curies of each iso-
pendent simulations. Data files, source tope of the radionuclides present.
codes, executable versions of computer (3) Any decision to exclude consider-
software for each model, other mate- ation of any waste characteristic or
rial or information needed to permit waste component because such char-
the Administrator or the Administra-
acteristic or component is not expected
tor’s authorized representative to per-
to significantly influence the contain-
form independent simulations, and ac-
ment of the waste in the disposal sys-
cess to necessary hardware to perform
tem.
such simulations, shall be provided
within 30 calendar days of a request by (c) For each waste component identi-
the Administrator or the Administra- fied and assessed pursuant to para-
tor’s authorized representative. graph (b) of this section, the Depart-
ment shall specify the limiting value
§ 194.24 Waste characterization. (expressed as an upper or lower limit of
mass, volume, curies, concentration,
(a) Any compliance application shall
etc.), and the associated uncertainty
describe the chemical, radiological and
physical composition of all existing (i.e., margin of error) for each limiting
waste proposed for disposal in the dis- value, of the total inventory of such
posal system. To the extent prac- waste proposed for disposal in the dis-
ticable, any compliance application posal system. Any compliance applica-
shall also describe the chemical, radio- tion shall:
logical and physical composition of to- (1) Demonstrate that, for the total
be-generated waste proposed for dis- inventory of waste proposed for dis-
posal in the disposal system. These de- posal in the disposal system, WIPP
scriptions shall include a list of waste complies with the numeric require-
components and their approximate ments of § 194.34 and § 194.55 for the
quantities in the waste. This list may upper or lower limits (including the as-
be derived from process knowledge, sociated uncertainties), as appropriate,
current non-destructive examination/ for each waste component identified in
assay, or other information and meth- paragraph (b)(2) of this section, and for
ods. the plausible combinations of upper
(b) The Department shall submit in and lower limits of such waste compo-
the compliance certification applica- nents that would result in the greatest
tion the results of an analysis which estimated release.
substantiates: (2) Identify and describe the meth-
(1) That all waste characteristics in- od(s) used to quantify the limits of
fluencing containment of waste in the waste components identified in para-
disposal system have been identified graph (b)(2) of this section.
and assessed for their impact on dis- (3) Provide information that dem-
posal system performance. The charac- onstrates that the use of acceptable
teristics to be analyzed shall include, knowledge to quantify components in
but shall not be limited to: Solubility; waste for disposal conforms with the
48
quality assurance requirements of waste disposal described in the WIPP

§ 194.22. LWA.
(4) Provide information which dem- (h) The Administrator will use in-
onstrates that a system of controls has spections and records reviews, such as
been and will continue to be imple- audits, to verify compliance with this
mented to confirm that the total section.
amount of each waste component that
[61 FR 5235, Feb. 9, 1996, as amended at 69 FR
will be emplaced in the disposal system
42583, July 16, 2004]
will not exceed the upper limiting
value or fall below the lower limiting § 194.25 Future state assumptions.
value described in the introductory
text of paragraph (c) of this section. (a) Unless otherwise specified in this
The system of controls shall include, part or in the disposal regulations, per-
but shall not be limited to: Measure- formance assessments and compliance
ment; sampling; chain of custody assessments conducted pursuant the
records; record keeping systems; waste provisions of this part to demonstrate
loading schemes used; and other docu- compliance with § 191.13, § 191.15 and
mentation. part 191, subpart C shall assume that
(5) Identify and describe such con- characteristics of the future remain
trols delineated in paragraph (c)(4) of what they are at the time the compli-
this section and confirm that they are ance application is prepared, provided
applied in accordance with the quality that such characteristics are not re-
assurance requirements found in lated to hydrogeologic, geologic or cli-
§ 194.22. matic conditions.
(d) The Department shall include a (b) In considering future states pur-
waste loading scheme in any compli- suant to this section, the Department
ance application, or else performance shall document in any compliance ap-
assessments conducted pursuant to plication, to the extent practicable, ef-
§ 194.32 and compliance assessments fects of potential future hydrogeologic,
conducted pursuant to § 194.54 shall as- geologic and climatic conditions on the
sume random placement of waste in disposal system over the regulatory
the disposal system. time frame. Such documentation shall
(e) Waste may be emplaced in the dis- be part of the activities undertaken
posal system only if the emplaced com- pursuant to § 194.14, Content of compli-
ponents of such waste will not cause: ance certification application; § 194.32,
(1) The total quantity of waste in the Scope of performance assessments; and
disposal system to exceed the upper § 194.54, Scope of compliance assess-
limiting value, including the associ- ments.
ated uncertainty, described in the in- (1) In considering the effects of
troductory text to paragraph (c) of this hydrogeologic conditions on the dis-
section; or posal system, the Department shall
(2) The total quantity of waste that document in any compliance applica-
will have been emplaced in the disposal tion, to the extent practicable, the ef-
system, prior to closure, to fall below fects of potential changes to
the lower limiting value, including the hydrogeologic conditions.
associated uncertainty, described in (2) In considering the effects of geo-
the introductory text to paragraph (c) logic conditions on the disposal sys-
of this section. tem, the Department shall document in
(f) Waste emplacement shall conform any compliance application, to the ex-
to the assumed waste loading condi- tent practicable, the effects of poten-
tions, if any, used in performance as- tial changes to geologic conditions, in-
sessments conducted pursuant to cluding, but not limited to: Dissolu-
§ 194.32 and compliance assessments tion; near surface geomorphic features
conducted pursuant to § 194.54. and processes; and related subsidence
(g) The Department shall dem- in the geologic units of the disposal
onstrate in any compliance application system.
that the total inventory of waste em- (3) In considering the effects of cli-
placed in the disposal system complies matic conditions on the disposal sys-
with the limitations on transuranic tem, the Department shall document in
49
§ 194.26 40 CFR Ch. I (7–1–21 Edition)
any compliance application, to the ex- (ii) The expertise of any expert panel,
tent practicable, the effects of poten- as a whole, involved in expert judg-
tial changes to future climate cycles of ment elicitation comports with the
increased precipitation (as compared to level and variety of knowledge required
present conditions). by the questions or issues presented to
that panel.
§ 194.26 Expert judgment. (5) Explain the relationship among
(a) Expert judgment, by an individual the information and issues presented to
expert or panel of experts, may be used experts prior to the elicitation process,
to support any compliance application, the elicited judgment of any expert
provided that expert judgment does not panel or individual, and the purpose for
substitute for information that could which the expert judgment is being
reasonably be obtained through data used in compliance applications(s).
collection or experimentation. (6) Provide documentation that the
(b) Any compliance application shall: initial purpose for which expert judg-
(1) Identify any expert judgments ment was intended, as presented to the
used to support the application and expert panel, is consistent with the
shall identify experts (by name and purpose for which this judgment was
employer) involved in any expert judg- used in compliance application(s).
ment elicitation processes used to sup- (7) Provide documentation that the
port the application. following restrictions and guidelines
(2) Describe the process of eliciting have been applied in eliciting expert
expert judgment, and document the re- judgment:
sults of expert judgment elicitation (i) At least five individuals shall be
processes and the reasoning behind used in any expert elicitation process,
those results. Documentation of inter- unless there is a lack or unavailability
views used to elicit judgments from ex- of experts and a documented rationale
perts, the questions or issues presented is provided that explains why fewer
for elicitation of expert judgment, than five individuals were selected.
background information provided to (ii) At least two-thirds of the experts
experts, and deliberations and formal involved in an elicitation shall consist
interactions among experts shall be of individuals who are not employed di-
provided. The opinions of all experts rectly by the Department or by the De-
involved in each elicitation process partment’s contractors, unless the De-
shall be provided whether the opinions partment can demonstrate and docu-
are used to support compliance appli- ment that there is a lack or unavail-
cations or not. ability of qualified independent ex-
(3) Provide documentation that the perts. If so demonstrated, at least one-
following restrictions and guidelines third of the experts involved in an
have been applied to any selection of elicitation shall consist of individuals
individuals used to elicit expert judg- who are not employed directly by the
ments: Department or by the Department’s
(i) Individuals who are members of contractors.
the team of investigators requesting
(c) The public shall be afforded a rea-
the judgment or the team of investiga-
sonable opportunity to present its sci-
tors who will use the judgment were
entific and technical views to expert
not selected; and
panels as input to any expert
(ii) Individuals who maintain, at any
elicitation process.
organizational level, a supervisory role
or who are supervised by those who § 194.27 Peer review.
will utilize the judgment were not se-
lected. (a) Any compliance application shall
(4) Provide information which dem- include documentation of peer review
onstrates that: that has been conducted, in a manner
(i) The expertise of any individual in- required by this section, for:
volved in expert judgment elicitation (1) Conceptual models selected and
comports with the level of knowledge developed by the Department;

required by the questions or issues pre- (2) Waste characterization analyses
sented to that individual; and as required in § 194.24(b); and
50
(3) Engineered barrier evaluation as latory time frame. Performance assess-

required in § 194.44. ments shall assume that mineral de-
(b) Peer review processes required in posits of those resources, similar in
paragraph (a) of this section, and con- quality and type to those resources
ducted subsequent to the promulgation currently extracted from the Delaware
of this part, shall be conducted in a Basin, will be completely removed
manner that is compatible with from the controlled area during the
NUREG–1297, ‘‘Peer Review for High- century in which such mining is ran-
Level Nuclear Waste Repositories,’’ domly calculated to occur. Complete
published February 1988. (Incorporation removal of such mineral resources
by reference as specified in § 194.5.) shall be assumed to occur only once
(c) Any compliance application shall: during the regulatory time frame.
(1) Include information that dem- (c) Performance assessments shall in-
onstrates that peer review processes re- clude an analysis of the effects on the
quired in paragraph (a) of this section, disposal system of any activities that
and conducted prior to the implemen- occur in the vicinity of the disposal
tation of the promulgation of this part, system prior to disposal and are ex-
were conducted in accordance with an pected to occur in the vicinity of the
alternate process substantially equiva- disposal system soon after disposal.
lent in effect to NUREG–1297 and ap- Such activities shall include, but shall
proved by the Administrator or the Ad- not be limited to, existing boreholes
ministrator’s authorized representa- and the development of any existing
tive; and leases that can be reasonably expected
(2) Document any peer review proc- to be developed in the near future, in-
esses conducted in addition to those re- cluding boreholes and leases that may
quired pursuant to paragraph (a) of be used for fluid injection activities.
this section. Such documentation shall (d) Performance assessments need
include formal requests, from the De- not consider processes and events that
partment to outside review groups or have less than one chance in 10,000 of
individuals, to review or comment on occurring over 10,000 years.
any information used to support com- (e) Any compliance application(s)
pliance applications, and the responses shall include information which:
from such groups or individuals. (1) Identifies all potential processes,
events or sequences and combinations
CONTAINMENT REQUIREMENTS of processes and events that may occur
during the regulatory time frame and
§ 194.31 Application of release limits. may affect the disposal system;
The release limits shall be calculated (2) Identifies the processes, events or
according to part 191, appendix A of sequences and combinations of proc-
this chapter, using the total activity, esses and events included in perform-
in curies, that will exist in the disposal ance assessments; and
system at the time of disposal. (3) Documents why any processes,
events or sequences and combinations
§ 194.32 Scope of performance assess- of processes and events identified pur-
ments. suant to paragraph (e)(1) of this section
(a) Performance assessments shall were not included in performance as-
consider natural processes and events, sessment results provided in any com-
mining, deep drilling, and shallow pliance application.
drilling that may affect the disposal
system during the regulatory time § 194.33 Consideration of drilling
frame. events in performance assessments.
(b) Assessments of mining effects (a) Performance assessments shall
may be limited to changes in the hy- examine deep drilling and shallow
draulic conductivity of the drilling that may potentially affect the
hydrogeologic units of the disposal sys- disposal system during the regulatory
tem from excavation mining for nat- time frame.
ural resources. Mining shall be as- (b) The following assumptions and
sumed to occur with a one in 100 prob- process shall be used in assessing the
ability in each century of the regu- likelihood and consequences of drilling
51
§ 194.34 40 CFR Ch. I (7–1–21 Edition)
events, and the results of such process (2) Natural processes will degrade or
shall be documented in any compliance otherwise affect the capability of
application: boreholes to transmit fluids over the
(1) Inadvertent and intermittent in- regulatory time frame.
trusion by drilling for resources (other (d) With respect to future drilling
than those resources provided by the events, performance assessments need
waste in the disposal system or engi- not analyze the effects of techniques
neered barriers designed to isolate such used for resource recovery subsequent
waste) is the most severe human intru- to the drilling of the borehole.
sion scenario.
(2) In performance assessments, drill- § 194.34 Results of performance assess-
ing events shall be assumed to occur in ments.
the Delaware Basin at random inter- (a) The results of performance assess-
vals in time and space during the regu- ments shall be assembled into ‘‘com-
latory time frame. plementary, cumulative distribution
(3) The frequency of deep drilling functions’’ (CCDFs) that represent the
shall be calculated in the following probability of exceeding various levels
manner: of cumulative release caused by all sig-
(i) Identify deep drilling that has oc- nificant processes and events.
curred for each resource in the Dela- (b) Probability distributions for un-
ware Basin over the past 100 years prior certain disposal system parameter val-
to the time at which a compliance ap- ues used in performance assessments
plication is prepared. shall be developed and documented in
(ii) The total rate of deep drilling any compliance application.
shall be the sum of the rates of deep (c) Computational techniques, which
drilling for each resource. draw random samples from across the
(4) The frequency of shallow drilling entire range of the probability dis-
shall be calculated in the following tributions developed pursuant to para-
manner: graph (b) of this section, shall be used
(i) Identify shallow drilling that has in generating CCDFs and shall be docu-
occurred for each resource in the Dela- mented in any compliance application.
ware Basin over the past 100 years prior (d) The number of CCDFs generated
to the time at which a compliance ap- shall be large enough such that, at cu-
plication is prepared. mulative releases of 1 and 10, the max-
(ii) The total rate of shallow drilling imum CCDF generated exceeds the 99th
shall be the sum of the rates of shallow percentile of the population of CCDFs
drilling for each resource. with at least a 0.95 probability. Values
(iii) In considering the historical rate of cumulative release shall be cal-
of all shallow drilling, the Department culated according to Note 6 of Table 1,
may, if justified, consider only the his- appendix A of part 191 of this chapter.
torical rate of shallow drilling for re- (e) Any compliance application shall
sources of similar type and quality to display the full range of CCDFs gen-
those in the controlled area. erated.
(c) Performance assessments shall (f) Any compliance application shall
document that in analyzing the con- provide information which dem-
sequences of drilling events, the De- onstrates that there is at least a 95 per-
partment assumed that: cent level of statistical confidence that
(1) Future drilling practices and tech- the mean of the population of CCDFs
nology will remain consistent with meets the containment requirements of
practices in the Delaware Basin at the § 191.13 of this chapter.
time a compliance application is pre-
pared. Such future drilling practices ASSURANCE REQUIREMENTS
shall include, but shall not be limited
to: The types and amounts of drilling § 194.41 Active institutional controls.
fluids; borehole depths, diameters, and (a) Any compliance application shall
seals; and the fraction of such include detailed descriptions of pro-

boreholes that are sealed by humans; posed active institutional controls, the
and controls’ location, and the period of
52
time the controls are proposed to re- disposal system parameter(s) as identi-
main active. Assumptions pertaining fied by the analysis conducted pursu-
to active institutional controls and ant to paragraph (a) of this section. A
their effectiveness in terms of pre- disposal system parameter shall be
venting or reducing radionuclide re- considered significant if it affects the
leases shall be supported by such de- system’s ability to contain waste or
scriptions. the ability to verify predictions about
(b) Performance assessments shall the future performance of the disposal
not consider any contributions from system. Such monitoring shall begin as
active institutional controls for more soon as practicable; however, in no
than 100 years after disposal. case shall waste be emplaced in the dis-
§ 194.42 Monitoring. posal system prior to the implementa-
tion of pre-closure monitoring. Pre-clo-
(a) The Department shall conduct an sure monitoring shall end at the time
analysis of the effects of disposal sys- at which the shafts of the disposal sys-
tem parameters on the containment of tem are backfilled and sealed.
waste in the disposal system and shall
(d) Post-closure monitoring. The dis-
include the results of such analysis in
posal system shall, to the extent prac-
any compliance application. The re-
sults of the analysis shall be used in ticable, be monitored as soon as prac-
developing plans for pre-closure and ticable after the shafts of the disposal
post-closure monitoring required pur- system are backfilled and sealed to de-
suant to paragraphs (c) and (d) of this tect substantial and detrimental devi-
section. The disposal system param- ations from expected performance and
eters analyzed shall include, at a min- shall end when the Department can
imum: demonstrate to the satisfaction of the
(1) Properties of backfilled material, Administrator that there are no sig-
including porosity, permeability, and nificant concerns to be addressed by
degree of compaction and reconsolida- further monitoring. Post-closure moni-
tion; toring shall be complementary to mon-
(2) Stresses and extent of deforma- itoring required pursuant to applicable
tion of the surrounding roof, walls, and federal hazardous waste regulations at
floor of the waste disposal room; parts 264, 265, 268, and 270 of this chap-
(3) Initiation or displacement of ter and shall be conducted with tech-
major brittle deformation features in niques that do not jeopardize the con-
the roof or surrounding rock; tainment of waste in the disposal sys-
(4) Ground water flow and other ef- tem.
fects of human intrusion in the vicin- (e) Any compliance application shall
ity of the disposal system; include detailed pre-closure and post-
(5) Brine quantity, flux, composition, closure monitoring plans for moni-
and spatial distribution; toring the performance of the disposal
(6) Gas quantity and composition; system. At a minimum, such plans
and shall:
(7) Temperature distribution. (1) Identify the parameters that will
(b) For all disposal system param- be monitored and how baseline values
eters analyzed pursuant to paragraph will be determined;
(a) of this section, any compliance ap-
(2) Indicate how each parameter will
plication shall document and substan-
be used to evaluate any deviations
tiate the decision not to monitor a par-
from the expected performance of the
ticular disposal system parameter be-
disposal system; and
cause that parameter is considered to
be insignificant to the containment of (3) Discuss the length of time over
waste in the disposal system or to the which each parameter will be mon-
verification of predictions about the itored to detect deviations from ex-
future performance of the disposal sys- pected performance.
tem.
§ 194.43 Passive institutional controls.

(c) Pre-closure monitoring. To the
extent practicable, pre-closure moni- (a) Any compliance application shall
toring shall be conducted of significant include detailed descriptions of the
53
§ 194.44 40 CFR Ch. I (7–1–21 Edition)
measures that will be employed to pre- § 194.44 Engineered barriers.

serve knowledge about the location, de-
(a) Disposal systems shall incor-
sign, and contents of the disposal sys-
tem. Such measures shall include: porate engineered barrier(s) designed
(1) Identification of the controlled to prevent or substantially delay the
area by markers that have been de- movement of water or radionuclides to-
signed and will be fabricated and em- ward the accessible environment.
placed to be as permanent as prac- (b) In selecting any engineered bar-
ticable; rier(s) for the disposal system, the De-
(2) Placement of records in the ar- partment shall evaluate the benefit
chives and land record systems of local, and detriment of engineered barrier al-
State, and Federal governments, and ternatives, including but not limited
international archives, that would to: Cementation, shredding, super-
likely be consulted by individuals in compaction, incineration, vitrification,
search of unexploited resources. Such improved waste canisters, grout and
records shall identify: bentonite backfill, melting of metals,
(i) The location of the controlled alternative configurations of waste
area and the disposal system; placements in the disposal system, and
(ii) The design of the disposal system; alternative disposal system dimen-
(iii) The nature and hazard of the sions. The results of this evaluation
waste; shall be included in any compliance ap-
(iv) Geologic, geochemical, hydro- plication and shall be used to justify
logic, and other site data pertinent to the selection and rejection of each en-
the containment of waste in the dis- gineered barrier evaluated.
posal system, or the location of such (c)(1) In conducting the evaluation of
information; and engineered barrier alternatives, the
(v) The results of tests, experiments,
following shall be considered, to the
and other analyses relating to backfill
extent practicable:
of excavated areas, shaft sealing, waste
interaction with the disposal system, (i) The ability of the engineered bar-
and other tests, experiments, or anal- rier to prevent or substantially delay
yses pertinent to the containment of the movement of water or waste to-
waste in the disposal system, or the lo- ward the accessible environment;
cation of such information. (ii) The impact on worker exposure
(3) Other passive institutional con- to radiation both during and after in-
trols practicable to indicate the dan- corporation of engineered barriers;
gers of the waste and its location. (iii) The increased ease or difficulty
(b) Any compliance application shall of removing the waste from the dis-
include the period of time passive in- posal system;
stitutional controls are expected to en- (iv) The increased or reduced risk of
dure and be understood. transporting the waste to the disposal
(c) The Administrator may allow the system;
Department to assume passive institu- (v) The increased or reduced uncer-
tional control credit, in the form of re- tainty in compliance assessment;
duced likelihood of human intrusion, if (vi) Public comments requesting spe-
the Department demonstrates in the cific engineered barriers;
compliance application that such cred-
(vii) The increased or reduced total
it is justified because the passive insti-
system costs;
tutional controls are expected to en-
dure and be understood by potential in- (viii) The impact, if any, on other
truders for the time period approved by waste disposal programs from the in-
the Administrator. Such credit, or a corporation of engineered barriers (e.g.,
smaller credit as determined by the the extent to which the incorporation
Administrator, cannot be used for more of engineered barriers affects the vol-
than several hundred years and may ume of waste);
decrease over time. In no case, how- (ix) The effects on mitigating the
ever, shall passive institutional con- consequences of human intrusion.

trols be assumed to eliminate the like- (2) If, after consideration of one or
lihood of human intrusion entirely. more of the factors in paragraph (c)(1)
54
of this section, the Department con- INDIVIDUAL AND GROUND-WATER

cludes that an engineered barrier con- PROTECTION REQUIREMENTS
sidered within the scope of the evalua-
tion should be rejected without evalu- § 194.51 Consideration of protected in-
ating the remaining factors in para- dividual.
graph (c)(1) of this section, then any Compliance assessments that analyze
compliance application shall provide a compliance with § 191.15 of this chapter
justification for this rejection explain- shall assume that an individual resides
ing why the evaluation of the remain- at the single geographic point on the
ing factors would not alter the conclu- surface of the accessible environment
sion. where that individual would be ex-
(d) In considering the ability of engi- pected to receive the highest dose from
neered barriers to prevent or substan- radionuclide releases from the disposal
tially delay the movement of water or system.
radionuclides toward the accessible en-
vironment, the benefit and detriment § 194.52 Consideration of exposure
of engineered barriers for existing pathways.
waste already packaged, existing waste In compliance assessments that ana-
not yet packaged, existing waste in lyze compliance with § 191.15 of this
need of re-packaging, and to-be-gen- chapter, all potential exposure path-
erated waste shall be considered sepa- ways from the disposal system to indi-
rately and described. viduals shall be considered. Compliance
(e) The evaluation described in para- assessments with part 191, subpart C
graphs (b), (c) and (d) of this section and § 191.15 of this chapter shall assume
shall consider engineered barriers that individuals consume 2 liters per
alone and in combination. day of drinking water from any under-
ground source of drinking water in the
§ 194.45 Consideration of the presence accessible environment.
of resources.
Any compliance application shall in- § 194.53 Consideration of underground
clude information that demonstrates sources of drinking water.
that the favorable characteristics of In compliance assessments that ana-
the disposal system compensate for the lyze compliance with part 191, subpart
presence of resources in the vicinity of C of this chapter, all underground
the disposal system and the likelihood sources of drinking water in the acces-
of the disposal system being disturbed sible environment that are expected to
as a result of the presence of those re- be affected by the disposal system over
sources. If performance assessments the regulatory time frame shall be con-
predict that the disposal system meets sidered. In determining whether under-
the containment requirements of ground sources of drinking water are
§ 191.13 of this chapter, then the Agency expected to be affected by the disposal
will assume that the requirements of system, underground interconnections
this section and § 191.14(e) of this chap- among bodies of surface water, ground
ter have been fulfilled. water, and underground sources of
drinking water shall be considered.
§ 194.46 Removal of waste.
Any compliance application shall in- § 194.54 Scope of compliance assess-
ments.
clude documentation which dem-
onstrates that removal of waste from (a) Any compliance application shall
the disposal system is feasible for a contain compliance assessments re-
reasonable period of time after dis- quired pursuant to this part. Compli-
posal. Such documentation shall in- ance assessments shall include infor-
clude an analysis of the technological mation which:
feasibility of mining the sealed dis- (1) Identifies potential processes,
posal system, given technology levels events, or sequences of processes and

at the time a compliance application is events that may occur over the regu-
prepared. latory time frame;
55
§ 194.55 40 CFR Ch. I (7–1–21 Edition)
(2) Identifies the processes, events, or section shall be large enough such that
sequences of processes and events in- the maximum estimates of doses and
cluded in compliance assessment re- concentrations generated exceed the
sults provided in any compliance appli- 99th percentile of the population of es-
cation; and timates with at least a 0.95 probability.
(3) Documents why any processes, (e) Any compliance application shall
events, or sequences of processes and display:
events identified pursuant to para- (1) The full range of estimated radi-
graph (a)(1) of this section were not in- ation doses; and
cluded in compliance assessment re- (2) The full range of estimated radio-
sults provided in any compliance appli- nuclide concentrations.
cation. (f) Any compliance application shall
(b) Compliance assessments of undis- document that there is at least a 95
turbed performance shall include the percent level of statistical confidence
effects on the disposal system of: that the mean and the median of the
(1) Existing boreholes in the vicinity range of estimated radiation doses and
of the disposal system, with attention the range of estimated radionuclide
to the pathways they provide for mi- concentrations meet the requirements
gration of radionuclides from the site; of § 191.15 and part 191, subpart C of this
and chapter, respectively.
(2) Any activities that occur in the
vicinity of the disposal system prior to Subpart D—Public Participation
or soon after disposal. Such activities
shall include, but shall not be limited § 194.61 Advance notice of proposed
to: Existing boreholes and the develop- rulemaking for certification.
ment of any existing leases that can be (a) Upon receipt of a compliance ap-
reasonably expected to be developed in plication submitted pursuant to sec-
the near future, including boreholes tion 8(d)(1) of the WIPP LWA and
and leases that may be used for fluid § 194.11, the Agency will publish in the
injection activities. FEDERAL REGISTER an Advance Notice
of Proposed Rulemaking announcing
§ 194.55 Results of compliance assess- that a compliance application has been
ments. received, soliciting comment on such
(a) Compliance assessments shall application, and announcing the Agen-
consider and document uncertainty in cy’s intent to conduct a rulemaking to
the performance of the disposal sys- certify whether the WIPP facility will
tem. comply with the disposal regulations.
(b) Probability distributions for un- (b) A copy of the compliance applica-
certain disposal system parameter val- tion will be made available for inspec-
ues used in compliance assessments tion in Agency dockets established pur-
shall be developed and documented in suant to § 194.67.
any compliance application. (c) The notice will provide a public
(c) Computational techniques which comment period of 120 days.
draw random samples from across the (d) A public hearing concerning the
entire range of values of each prob- notice will be held if a written request
ability distribution developed pursuant is received by the Administrator or the
to paragraph (b) of this section shall be Administrator’s authorized representa-
used to generate a range of: tive within 30 calendar days of the date
(1) Estimated committed effective of publication pursuant to paragraph
doses received from all pathways pur- (a) of this section.
suant to § 194.51 and § 194.52; (e) Any comments received on the no-
(2) Estimated radionuclide con- tice will be made available for inspec-
centrations in USDWs pursuant to tion in the dockets established pursu-
§ 194.53; and ant to § 194.67.
(3) Estimated dose equivalent re- (f) Any comments received on the no-
ceived from USDWs pursuant to § 194.52 tice will be provided to the Department
and § 194.53. and the Department may submit to the

(d) The number of estimates gen- Agency written responses to the com-
erated pursuant to paragraph (c) of this ments.
56
§ 194.62 Notice of proposed rule- (c) The notice will provide a public
making for certification. comment period of at least 30 days
(a) The Administrator will publish a after publication pursuant to para-
Notice of Proposed Rulemaking in the graph (a) of this section.
FEDERAL REGISTER announcing the Ad- (d) Any comments received on such
ministrator’s proposed decision, pursu- notice will be made available for public
ant to section 8(d)(1) of the WIPP LWA, inspection in the dockets established
whether to issue a certification that pursuant to § 194.67.
the WIPP facility will comply with the (e) Upon completion of review of the
disposal regulations and soliciting documentation of continued compli-
comment on the proposal. ance with the disposal regulations, the
(b) The notice will provide a public Administrator will publish a notice in
comment period of at least 120 days. the FEDERAL REGISTER announcing the
(c) The notice will announce public Administrator’s decision whether or
hearings in New Mexico. not to re-certify the WIPP facility.
(d) Any comments received on the
notice will be made available for in- § 194.65 Notice of proposed rule-
making for modification or revoca-
spection in the dockets established tion.
pursuant to § 194.67.
(a) If the Administrator determines
§ 194.63 Final rule for certification. that any changes in activities or condi-
(a) The Administrator will publish a tions pertaining to the disposal system
Final Rule in the FEDERAL REGISTER depart significantly from the most re-
announcing the Administrator’s deci- cent compliance application, the Agen-
sion, pursuant to section 8(d)(1) of the cy will publish a Notice of Proposed
WIPP LWA, whether to issue a certifi- Rulemaking in the FEDERAL REGISTER
cation that the WIPP facility will com- announcing the Administrator’s pro-
ply with the disposal regulations. posed decision on modification or rev-
ocation, and soliciting comment on the
(b) A document summarizing signifi-
proposal.
cant comments and issues arising from
comments received on the Notice of (b) Any comments received on the
Proposed Rulemaking, as well as the notice will be made available for in-
Administrator’s response to such sig- spection in the dockets established
nificant comments and issues, will be pursuant to § 194.67.
prepared and will be made available for
§ 194.66 Final rule for modification or
inspection in the dockets established revocation.
(a) The Administrator will publish a
§ 194.64 Documentation of continued Final Rule in the FEDERAL REGISTER
compliance. announcing the Administrator’s deci-
(a) Upon receipt of documentation of sion on modification or revocation.
continued compliance with the disposal (b) A document summarizing signifi-
regulations pursuant to section 8(f) of cant comments and issues arising from
the WIPP LWA and § 194.11, the Admin- comments received on the Notice of
istrator will publish a notice in the Proposed Rulemaking as well as the
FEDERAL REGISTER announcing that Administrator’s response to such sig-
such documentation has been received, nificant comments and issues will be
soliciting comment on such docu- prepared and will be made available for
mentation, and announcing the Admin- inspection in the dockets established
istrator’s intent to determine whether pursuant to § 194.67.
or not the WIPP facility continues to
be in compliance with the disposal reg- § 194.67 Dockets.
ulations. The Agency will establish and main-
(b) Copies of documentation of contain dockets in the State of New Mex-
tinued compliance received by the Ad- ico and Washington, DC. The dockets
ministrator will be made available for will consist of all relevant, significant
inspection in the dockets established information received from outside par-
pursuant to § 194.67. ties and all significant information
57
considered by the Administrator in cer- 194.24(c)(5) for waste characterization activi-

tifying whether the WIPP facility will ties and assumptions. The Agency will deter-
comply with the disposal regulations, mine compliance of site-specific quality as-
surance programs at waste generator sites
in certifying whether or not the WIPP using the process set forth in § 194.8.
facility continues to be in compliance Condition 3: § 194.24: Waste Characterization.
with the disposal regulations, and in The Secretary may allow shipment for dis-
determining whether compliance cer- posal at the WIPP of legacy debris waste at
tification should be modified, sus- the Los Alamos National Laboratory
pended or revoked. (‘‘LANL’’) that can be characterized using
the systems and processes inspected by the
Agency and documented in Docket A–93–02,
Item II–I–70. The Secretary shall not allow
shipment of any waste from any additional
APPENDIX A TO PART 194—CERTIFI- LANL waste stream(s) or from any waste
CATION OF THE WASTE ISOLATION generator site other than LANL for disposal
PILOT PLANT’S COMPLIANCE WITH at the WIPP until the Agency has approved
THE 40 CFR PART 191 DISPOSAL REG- the processes for characterizing those waste
ULATIONS AND THE 40 CFR PART 194 streams for shipment using the process set
COMPLIANCE CRITERIA forth in § 194.8.
Condition 4: § 194.43, Passive institutional
In accordance with the provisions of the controls.
WIPP Compliance Criteria of this part, the (a) Not later than the final recertification
Agency finds that the Waste Isolation Pilot application submitted prior to closure of the
Plant (‘‘WIPP’’) will comply with the radio- disposal system, the Department shall pro-
active waste disposal regulations at part 191, vide, to the Administrator or the Adminis-
subparts B and C, of this chapter. Therefore, trator’s authorized representative:
pursuant to Section 8(d)(2) of the WIPP Land (1) a schedule for implementing passive in-
Withdrawal Act (‘‘WIPP LWA’’), as amended, stitutional controls that has been revised to
the Administrator certifies that the WIPP show that markers will be fabricated and
facility will comply with the disposal regula- emplaced, and other measures will be imple-
tions. In accordance with the Agency’s au- mented, as soon as possible following closure
thority under § 194.4(a), the certification of of the WIPP. Such schedule should describe
compliance is subject to the following condi- how testing of any aspect of the conceptual
tions: design will be completed prior to or soon
Condition 1: § 194.14(b), Disposal system de- after closure, and what changes to the design
sign, panel closure system. The Department of passive institutional controls may be ex-
shall close filled waste panels in a manner pected to result from such testing.
that has been specifically approved by the (2) documentation showing that the gran-
Agency. DOE must inform EPA of any modi- ite pieces for the proposed monuments and
fication to the approved panel closure design information rooms described in Docket A–93–
pursuant to § 194.4(b)(3)(i), and provide any 02, Item II–G–1, and supplementary informa-
supporting information required by § 194.14, tion may be: quarried (cut and removed from
Content of compliance certification application. the ground) without cracking due to tensile
The Administrator or Administrator’s au- stresses from handling or isostatic rebound;
thorized representative will determine engraved on the scale required by the design;
whether the change differs significantly transported to the site, given the weight and
from the design included in the most recent dimensions of the granite pieces and the ca-
compliance certification, and whether the pacity of existing rail cars and rail lines;
planned change would require modification loaded, unloaded, and erected without crack-
of the compliance criteria. The EPA’s ap- ing based on the capacity of available equip-
proval of a panel closure change request re- ment; and successfully joined.
quires that performance assessment calcula- (3) documentation showing that archives
tions adequately represent the waste panel and record centers will accept the documents
closure design, and that those calculations identified and will maintain them in the
demonstrate the WIPP’s compliance with the manner identified in Docket A–93–02, Item
release standards set by 40 CFR part 191, II–G–1.
Subpart B in accordance with § 194.34, Results (4) documentation showing that proposed
of performance assessments. recipients of WIPP information other than
Condition 2: § 194.22: Quality Assurance. The archives and record centers will accept the
Secretary shall not allow any waste gener- information and make use of it in the man-
ator site other than the Los Alamos Na- ner indicated by the Department in Docket
tional Laboratory to ship waste for disposal A–93–02, Item II–G–1 and supplementary in-
at the WIPP until the Agency determines formation.
that the site has established and executed a (b) Upon receipt of the information re-
quality assurance program, in accordance quired under paragraph (a) of this condition,
with §§ 194.22(a)(2)(i), 194.24(c)(3) and the Agency will place such documentation in
58
the public dockets identified in § 194.67. The Accepted application refers to an ap-
Agency will determine if a modification to plication that has been entered into
the compliance certification in effect is nec- the data system.
essary. Any such modification will be con-
ducted in accordance with the requirements Applicant means an individual or or-
at §§ 194.65 and 194.66. ganization that submits an application
to the RMP program, including the in-
[63 FR 27405, May 18, 1998, as amended at 79 dividual proficiency component of the
FR 60756, Oct. 8, 2014]
RMP program, or the RCP program. An
applicant to the RMP program must
PART 195—RADON PROFICIENCY submit a separate application for each
PROGRAMS location from which it provides radon
measurement services. After the appli-
Subpart A—General Provisions cation is accepted by EPA, the appli-
cant becomes a ‘‘participant’’ in the
Sec.
proficiency programs.
195.1 Purpose and applicability.
Application means the documents
195.2 Definitions.
submitted to EPA by applicants to the
Subpart B—Fees RMP and RCP programs which request
participation in a program.
195.20 Fee payments. Device/measurement device means a
195.30 Failure to remit fee. unit, component, or system designed to
AUTHORITY: 15 U.S.C. 2665. measure radon gas or radon decay
products.
SOURCE: 59 FR 13175, Mar. 18, 1994, unless EPA means the U.S. Environmental
otherwise noted.
Protection Agency.
Individual proficiency/RMP exam
Subpart A—General Provisions means the exam which evaluates indi-
viduals who provide radon measure-
§ 195.1 Purpose and applicability. ment services in a residential environ-
(a) Purpose. The purpose of this part ment.
is to establish and collect the fees from Listed participant in an individual or
applicants and participants required by organization who has met all the re-
section 305 of the Toxic Substances quirements for listing in the RMP and
Control Act, U.S.C. 2665 to defray the RCP programs.
cost to EPA for operating the following Measurement method is a means of
programs: The National Radon Meas- measuring radon gas or radon decay
urement Proficiency (RMP) Program, products encompassing similar meas-
the individual proficiency component urement devices, sampling techniques,
of the RMP Program, and the National or analysis procedures.
Radon Contractor Proficiency (RCP) Organization is any individual, sole
Program. proprietorship, partnership, business,
(b) Applicability. This part applies to company, corporation, college or uni-
all applicants and participants in the versity, government agency (includes
following EPA programs: The National Federal, State and local government
Radon Measurement Proficiency Pro- entities), laboratory, or institution.
gram, the individual proficiency com- Participant is an individual or organi-
ponent of the RMP Program, and the zation engaged in radon measurement
National Radon Contractor Proficiency and/or mitigation activities or in offer-
Program. ing radon measurement and/or mitiga-
tion services to consumers and others,
§ 195.2 Definitions. whose proficiency program application
Definitions in 15 U.S.C. 2602 and 2662 EPA has accepted.
apply to this part unless otherwise Primary measurement services (primary)
specified in this section. In addition, refers to radon measurement services
the following definitions apply: using a specific device which services
Acceptance date means the date on include the capability to read and/or
which EPA enters the application into analyze the results generated from the
the data system. device.
59
§ 195.20 40 CFR Ch. I (7–1–21 Edition)
Radon Contractor Proficiency (RCP) remain a listed participant, each orga-

program refers to EPA’s program to nization that is listed for secondary
evaluate radon mitigation contractors measurement services in the RMP pro-
and the contractor’s ability to commu- gram on the effective date of this sec-
nicate information to the public. tion shall pay an annual fee of $50 for
Radon Measurement Proficiency (RMP) each business location listed.
program refers to EPA’s program to (ii) Each organization seeking listing
evaluate organizations and individuals for secondary measurement services
offering measurement services to con- that submits an initial application
sumers. It provides a means for organi- after the effective date of this section
zations to demonstrate their pro- shall pay an annual fee of $50 for each
ficiency in measuring radon and its business location listed. This fee will
decay products in indoor air. be prorated quarterly, based on the ac-
Radon mitigation contractor means a ceptance date of an organization’s ap-
contractor who provides radon mitiga- plication.
tion services to the public. (iii) Primary organizations that have
Secondary radon measurement services or are seeking secondary listings for
(secondary) refers to radon measure- methods other than those for which
ment services that do not include the they are listed as a primary, are sub-
reading or the ability to analyze the ject to the fees.
results of the measurement devices (3) Individual Proficiency Component of
used. These services may include place- the RMP Program. (i) In order to remain
ment and retrieval of devices, report- a listed participant, each individual
ing results, and/or consultation with listed in the RMP individual pro-
consumers. ficiency program on the effective date
of this section shall pay an annual fee
Subpart B—Fees of $105.
(ii) Each individual who submits an
§ 195.20 Fee payments. initial application after the effective
(a) Fee Amounts. Applicants to and date of this section shall pay an annual
participants in the RMP and RCP pro- fee of $105. This fee will be prorated
grams shall pay fees according to the quarterly, based on the acceptance
following fee schedule: date of an individual’s application.
(1) Organizations Listed for or Seeking (iii) Individuals who have or are
Listing for Primary Measurement Services seeking listing status as an RMP pri-
in the RMP Program. (i) In order to re- mary or secondary organization are
main a listed participant, each organi- subject to the applicable fees under
zation that is listed for primary meas- paragraphs (a)(1) and (2) of this section.
urement services in the RMP program (4) RCP Program. (i)(A) In order to re-
on the effective date of this section main a listed participant, each indi-
shall pay an annual fee of $390 for each vidual listed in the RCP program on
device. the effective date of this section shall
(ii) Each organization seeking listing pay an annual fee of $210.
for primary measurement services that (B) Each individual who is not a list-
submits an initial application after the ed participant in the RCP program on
effective date of this section shall pay the effective date of this section and
an annual fee of $390 per device. This submits an initial application after the
fee will be prorated quarterly, based on effective date of this section shall pay
the acceptance date of an organiza- an annual fee of $210. This fee will be
tion’s application. prorated quarterly, based on the ac-
(iii) Organizations that have or are ceptance date of an individual’s appli-
seeking a listing for secondary meas- cation.
urement services for their primary de- (ii) An organization or individual
vices will not be required to pay the who is not a listed participant in EPA’s
additional $50 fee applicable to sec- radon proficiency programs on the ef-
ondary organizations. fective date of this section and/or
(2) Organizations Listed for or Seeking whose proficiency program application

Listing for Secondary Measurement Serv- has not yet been accepted by EPA be-
ices in the RMP Program. (i) In order to comes subject to the fees described
60
above once its application has been ac- shall be removed from the proficiency
cepted by EPA. Fees for such organiza- program.
tions or individuals will be prorated (3) New or initial applicants to the
quarterly, based on the acceptance RMP or RCP programs will be assessed
date of the application. To remain list- a fee at the time of their initial appli-
ed, each participant in the RMP or cation. EPA will send a payment in-
RCP programs, whether individual or voice to the new applicant upon accept-
organization, shall submit the appro- ance of the initial application. The ap-
priate annual fee to EPA each year. plicant will be given at least 30 days
(b) Exemptions. State and local gov- from the date on the payment invoice
ernments are exempted from these fees to remit payment. The fee assessed will
under section 305(e)(2) of TSCA, 15 be prorated quarterly, based on the ac-
U.S.C. 2665. ceptance date of the application. If the
appropriate fee has not been received
(c) Determination of Fees. (1) Partici-
by EPA by the payment due date, the
pants listed in the RMP and RCP pro-
application will be placed in an inac-
grams on the effective date of this sec- tive file with no further action taken
tion will be sent, by EPA, a payment by EPA.
invoice with its fee calculation at least (d) Payment Procedures. Each remit-
30 days before the payment is due. Fees tance to EPA under this section shall
will be assessed based on the current be in United States currency and shall
information in EPA’s proficiency data be paid by certified check, personal or
bases. Participants who intend to pay business check, or money order made
the invoiced fee amount must send payable to the order of the ‘‘U.S. ENVI-
their payment to EPA following the RONMENTAL PROTECTION AGEN-
procedures in the invoice. Organiza- CY’’ and sent to: U.S. EPA, Washington
tions or individuals who wish to notify Financial Management Center, Radon
EPA of any errors or corrections they Proficiency Program User Fees (IRAA),
wish to make to their listing status P.O. Box 952491, St. Louis, Missouri,
must do so by following the instruc- 63195–2491. The fee payment shall in-
tions on the payment invoice. Cor- clude the original copy of the EPA pay-
rected payment invoices for both the ment invoice. Collection of fees will
RMP Program and the RCP Program begin in the calendar year beginning
shall be sent to: Radon Proficiency January 1, 1995. Specific guidance on
Programs User Fees, c/o Sanford Cohen how and when fees must be paid can be
and Associates, Inc. (SC&A), 1418 I–85 found in How to Pay Your Radon Pro-
Parkway, Montgomery, Alabama, ficiency Programs User Fees, U.S.
36106. EPA will review the corrections EPA/Office of Radiation and Indoor
noted on the payment invoice, adjust Air. Copies of this document can be ob-
the payment invoice amount (as appro- tained by contacting the RIS at (334)
priate) and issue a new invoice. Par- 272–2797 or by FAX at (334) 260–9051.
ticipants must pay the amount in the (e) Adjustment of Fees. (1) EPA shall
corrected payment invoice within 30 collect 100 percent of its operating
days of the date listed on the corrected costs associated with its radon pro-
invoice. ficiency programs by calendar year
(2) If the appropriate fee or a revised 1998. As necessary, EPA shall adjust
payment invoice for an individual or the fees established by this subpart
organization participating in the RMP each year over the next four years to
or RCP program has not been received collect the following percentages of
by EPA on or before the payment due program costs:
date, EPA will send, by certified mail,
Year 1 Year 2 Year 3 Year 4 Year 5
notice that the individual or organiza-
tion will be delisted from the pro- 30% 47.5% 65% 82.5% 100%
ficiency program unless he/she pays the
fee within 30 days of this second cer- Actual fees for each fiscal year will be
tified notification. If payment still has calculated based on program costs and
not been received by EPA after 30 days participation rates. New fee schedules
of the second certified notification, the will be published in the FEDERAL REG-
organization’s or individual’s listing ISTER as a technical amendment final
61
§ 195.30 40 CFR Ch. I (7–1–21 Edition)
rule to this part to become effective 30 PART 197—PUBLIC HEALTH AND

days or more after publication. ENVIRONMENTAL RADIATION
(2) EPA will use a three-step process PROTECTION STANDARDS FOR
to adjust the fees annually. First, EPA
will estimate the costs of providing
YUCCA MOUNTAIN, NEVADA
each of the proficiency programs for
Subpart A—Public Health and
the upcoming year. EPA will account
Environmental Standards for Storage
for future additional fixed costs (e.g.,
updating examinations) and increases/ Sec.
decreases in variable costs due to infla- 197.1 What does subpart A cover?
tion and other factors. In order to cal- 197.2 What definitions apply in subpart A?
culate increases/decreases in costs due 197.3 How is subpart A implemented?
to inflation, EPA may use one of the 197.4 What standard must DOE meet?
three following indices: the Federal 197.5 When will this part take effect?
General Schedule (GS) pay scale, the
Subpart B—Public Health and
Consumer Price Index (CPI), and/or a
Environmental Standards for Disposal
component of the CPI, such as services.
Second, EPA will estimate the number 197.11 What does subpart B cover?
of participants for each program. At a 197.12 What definitions apply in subpart B?
minimum, these participation rates 197.13 How is subpart B implemented?
will be based on past and current pro- 197.14 What is a reasonable expectation?
gram participation rates. Third, EPA 197.15 How must DOE take into account the
shall calculate the per capita costs changes that will occur during the period
of geologic stability?
that individuals and organizations
should pay to enable it to recover its INDIVIDUAL-PROTECTION STANDARD
fixed and variable costs each year for
197.20 What standard must DOE meet?
each program. EPA shall also consider 197.21 Who is the reasonably maximally ex-
potential industry impacts as it ad- posed individual?
justs to levels to ultimately achieve
full cost recovery over the period of HUMAN-INTRUSION STANDARD
five years. 197.25 What standard must DOE meet?
[60 FR 41816, Aug. 14, 1995] 197.26 What are the circumstances of the
human intrusion?
§ 195.30 Failure to remit fee. GROUND WATER PROTECTION STANDARDS
EPA will not process an application 197.30 What standards must DOE meet?
or continue a participant’s listing in 197.31 What is a representative volume?
the National Radon Measurement Pro-
ficiency program, individual pro- ADDITIONAL PROVISIONS
ficiency component of the RMP pro- 197.35 [Reserved]
gram, or the National Radon Con- 197.36 Are there limits on what DOE must
tractor Proficiency program until the consider in the performance assess-
appropriate remittance provided in ments?
§ 195.20(a) has been received by EPA. 197.37 Can EPA amend this rule?
Failure by a currently EPA-listed orga- 197.38 Are the Individual Protection and
nization or individual to remit the re- Ground Water Protection Standards Sev-
quired fees in a timely manner will re- erable?
sult in the loss of that organization’s APPENDIX A TO PART 197—CALCULATION OF
or individual’s listing status as speci- ANNUAL COMMITTED EFFECTIVE DOSE
EQUIVALENT
fied in § 195.20(c).
AUTHORITY: Sec. 801, Pub. L. 102–486, 106
Stat. 2921, 42 U.S.C. 10141 n.
SOURCE: 66 FR 32132, June 13, 2001, unless
otherwise noted.
62
Subpart A—Public Health and En- Member of the public means anyone
vironmental Standards for who is not a radiation worker for pur-
Storage poses of worker protection.
NRC means the Nuclear Regulatory
§ 197.1 What does subpart A cover? Commission.
This subpart covers the storage of ra- Radioactive material means matter
dioactive material by DOE in the composed of or containing radio-
Yucca Mountain repository and on the nuclides subject to the Atomic Energy
Yucca Mountain site. Act of 1954, as amended (42 U.S.C. 2014
et seq.). Radioactive material includes,
§ 197.2 What definitions apply in sub- but is not limited to, high-level radio-
part A? active waste and spent nuclear fuel.
Annual committed effective dose equiva- Spent nuclear fuel means fuel that has
lent means the effective dose equiva- been withdrawn from a nuclear reactor
lent received by an individual in one following irradiation, the constituent
year from radiation sources external to elements of which have not been sepa-
the individual plus the committed ef- rated by reprocessing.
fective dose equivalent. Storage means retention (and any as-
Committed effective dose equivalent sociated activity, operation, or process
means the effective dose equivalent re- necessary to carry out successful re-
ceived over a period of time (e.g., 30 tention) of radioactive material with
years,), as determined by NRC, by an the intent or capability to readily ac-
individual from radionuclides internal cess or retrieve such material.
to the individual following a one-year Yucca Mountain repository means the
intake of those radionuclides. excavated portion of the facility con-
DOE means the Department of En- structed underground within the Yucca
ergy. Mountain site.
Effective dose equivalent means the Yucca Mountain site means:
sum of the products of the dose equiva- (1) The site recommended by the Sec-
lent received by specified tissues fol- retary of DOE to the President under
lowing an exposure of, or an intake of section 112(b)(1)(B) of the Nuclear
radionuclides into, specified tissues of Waste Policy Act of 1982 (42 U.S.C.
the body, multiplied by appropriate 10132(b)(1)(B)) on May 27, 1986; or
weighting factors. Annual committed (2) The area under the control of DOE
effective dose equivalents shall be cal- for the use of Yucca Mountain activi-
culated using weighting factors in ap- ties at the time of licensing, if the site
pendix A of this part, unless otherwise designated under the Nuclear Waste
directed by NRC in accordance with Policy Act is amended by Congress
the introduction to appendix A of this prior to the time of licensing.
part.
EPA means the Environmental Pro- [66 FR 32132, June 13, 2001, as amended at 73
FR 61287, Oct. 15, 2008]
tection Agency.
General environment means every- § 197.3 How is subpart A implemented?
where outside the Yucca Mountain
site, the Nellis Air Force Range, and The NRC implements this subpart A.
the Nevada Test Site. The DOE must demonstrate to NRC
High-level radioactive waste means: that normal operations at the Yucca
(1) The highly radioactive material Mountain site will and do occur in
resulting from the reprocessing of compliance with this subpart before
spent nuclear fuel, including liquid NRC may grant or continue a license
waste produced directly in reprocessing for DOE to receive and possess radio-
and any solid material derived from active material within the Yucca
such liquid waste that contains fission Mountain site.
products in sufficient concentrations;
and § 197.4 What standard must DOE meet?
(2) Other highly radioactive material The DOE must ensure that no mem-
that the Commission, consistent with ber of the public in the general envi-
existing law, determines by rule re- ronment receives more than an annual
quires permanent isolation. committed effective dose equivalent of
63
§ 197.5 40 CFR Ch. I (7–1–21 Edition)
150 microsieverts (15 millirems) from that significantly decrease the mobil-
the combination of: ity of radionuclides, or a material
(a) Management and storage (as de- placed over and around the waste, pro-
fined in 40 CFR 191.2) of radioactive vided that the material substantially
material that: delays movement of water or radio-
(1) Is subject to 40 CFR 191.3(a); and nuclides.
(2) Occurs outside of the Yucca Controlled area means:
Mountain repository but within the (1) The surface area, identified by
Yucca Mountain site; and passive institutional controls, that en-
(b) Storage (as defined in § 197.2) of compasses no more than 300 square kil-
radioactive material inside the Yucca ometers. It must not extend farther:
Mountain repository. (a) South than 36°40′13.6661″ north
latitude, in the predominant direction
§ 197.5 When will this part take effect? of ground water flow; and
The standards in this part take effect (b) Than five kilometers from the re-
on July 13, 2001. pository footprint in any other direc-
tion; and
Subpart B—Public Health and En- (2) The subsurface underlying the
vironmental Standards for Dis- surface area.
posal Disposal means the emplacement of
radioactive material into the Yucca
§ 197.11 What does subpart B cover? Mountain disposal system with the in-
This subpart covers the disposal of tent of isolating it for as long as rea-
radioactive material in the Yucca sonably possible and with no intent of
Mountain repository by DOE. recovery, whether or not the design of
the disposal system permits the ready
§ 197.12 What definitions apply in sub- recovery of the material. Disposal of
part B? radioactive material in the Yucca
All definitions in subpart A of this Mountain disposal system begins when
part and the following: all of the ramps and other openings
Accessible environment means any into the Yucca Mountain repository
point outside of the controlled area, in- are sealed.
cluding: Ground water means water that is
(1) The atmosphere (including the at- below the land surface and in a satu-
mosphere above the surface area of the rated zone.
controlled area); Human intrusion means breaching of
(2) Land surfaces; any portion of the Yucca Mountain dis-
(3) Surface waters; posal system, within the repository
(4) Oceans; and footprint, by any human activity.
(5) The lithosphere. Passive institutional controls means:
Aquifer means a water-bearing under- (1) Markers, as permanent as prac-
ground geological formation, group of ticable, placed on the Earth’s surface;
formations, or part of a formation (ex- (2) Public records and archives;
cluding perched water bodies) that can (3) Government ownership and regu-
yield a significant amount of ground lations regarding land or resource use;
water to a well or spring. and
Barrier means any material, struc- (4) Other reasonable methods of pre-
ture, or feature that, for a period to be serving knowledge about the location,
determined by NRC, prevents or sub- design, and contents of the Yucca
stantially reduces the rate of move- Mountain disposal system.
ment of water or radionuclides from Peak dose means the highest annual
the Yucca Mountain repository to the committed effective dose equivalent
accessible environment, or prevents projected to be received by the reason-
the release or substantially reduces the ably maximally exposed individual.
release rate of radionuclides from the Performance assessment means an
waste. For example, a barrier may be a analysis that:
geologic feature, an engineered struc- (1) Identifies the features, events,

ture, a canister, a waste form with processes, (except human intrusion),
physical and chemical characteristics and sequences of events and processes
64
(except human intrusion) that might Waste means any radioactive mate-
affect the Yucca Mountain disposal rial emplaced for disposal into the
system and their probabilities of occur- Yucca Mountain repository.
ring; Well-capture zone means the volume
(2) Examines the effects of those fea- from which a well pumping at a defined
tures, events, processes, and sequences rate is withdrawing water from an aq-
of events and processes upon the per- uifer. The dimensions of the well-cap-
formance of the Yucca Mountain dis- ture zone are determined by the pump-
posal system; and ing rate in combination with aquifer
(3) Estimates the annual committed characteristics assumed for calcula-
effective dose equivalent incurred by tions, such as hydraulic conductivity,
the reasonably maximally exposed in- gradient, and the screened interval.
dividual, including the associated un- Yucca Mountain disposal system means
certainties, as a result of releases the combination of underground engi-
caused by all significant features, neered and natural barriers within the
events, processes, and sequences of controlled area that prevents or sub-
events and processes, weighted by their stantially reduces releases from the
probability of occurrence. waste.
Period of geologic stability means the
[66 FR 32132, June 13, 2001, as amended at 73
time during which the variability of FR 61287, Oct. 15, 2008]
geologic characteristics and their fu-
ture behavior in and around the Yucca § 197.13 How is Subpart B imple-
Mountain site can be bounded, that is, mented?
they can be projected within a reason- The NRC implements this subpart B.
able range of possibilities. This period The DOE must demonstrate to NRC
is defined to end at 1 million years that there is a reasonable expectation
after disposal. of compliance with this subpart before
Plume of contamination means that NRC may issue a license.
volume of ground water in the pre-
(a) The NRC will determine compli-
dominant direction of ground water
ance, based upon the arithmetic mean
flow that contains radioactive con-
of the projected doses from DOE’s per-
tamination from releases from the
formance assessments for the period
Yucca Mountain repository. It does not
within 1 million years after disposal,
include releases from any other poten-
with:
tial sources on or near the Nevada Test
(1) Sections 197.20(a)(1) and
Site.
197.20(a)(2) of this subpart; and
Repository footprint means the outline
(2) Sections 197.25(b)(1), 197.25(b)(2),
of the outermost locations of where the
and 197.30 of this subpart, if perform-
waste is emplaced in the Yucca Moun-
ance assessment is used to demonstrate
tain repository.
compliance with either or both of these
Slice of the plume means a cross-sec-
sections.
tion of the plume of contamination
(b) [Reserved]
with sufficient thickness parallel to
the prevalent direction of flow of the [73 FR 61287, Oct. 15, 2008]
plume that it contains the representa-
tive volume. § 197.14 What is a reasonable expecta-
Total dissolved solids means the total tion?
dissolved (filterable) solids in water as Reasonable expectation means that
determined by use of the method speci- NRC is satisfied that compliance will
fied in 40 CFR part 136. be achieved based upon the full record
Undisturbed performance means that before it. Characteristics of reasonable
human intrusion or the occurrence of expectation include that it:
unlikely natural features, events, and (a) Requires less than absolute proof
processes do not disturb the disposal because absolute proof is impossible to
system. attain for disposal due to the uncer-
Undisturbed Yucca Mountain disposal tainty of projecting long-term perform-
system means that the Yucca Mountain ance;

disposal system is not affected by (b) Accounts for the inherently great-
human intrusion. er uncertainties in making long-term
65
§ 197.15 40 CFR Ch. I (7–1–21 Edition)
projections of the performance of the ways of radionuclide transport and ex-

Yucca Mountain disposal system; posure.
(c) Does not exclude important pa-
[73 FR 61287, Oct. 15, 2008]
rameters from assessments and anal-
yses simply because they are difficult § 197.21 Who is the reasonably maxi-
to precisely quantify to a high degree mally exposed individual?
of confidence; and
(d) Focuses performance assessments The reasonably maximally exposed
and analyses upon the full range of de- individual is a hypothetical person who
fensible and reasonable parameter dis- meets the following criteria:
tributions rather than only upon ex- (a) Lives in the accessible environ-
treme physical situations and param- ment above the highest concentration
eter values. of radionuclides in the plume of con-
tamination;
§ 197.15 How must DOE take into ac- (b) Has a diet and living style rep-
count the changes that will occur
during the period of geologic sta- resentative of the people who now re-
bility? side in the Town of Amargosa Valley,
Nevada. The DOE must use projections
The DOE should not project changes
in society, the biosphere (other than based upon surveys of the people resid-
climate), human biology, or increases ing in the Town of Amargosa Valley,
or decreases of human knowledge or Nevada, to determine their current
technology. In all analyses done to diets and living styles and use the
demonstrate compliance with this part, mean values of these factors in the as-
DOE must assume that all of those fac- sessments conducted for §§ 197.20 and
tors remain constant as they are at the 197.25; and
time of license application submission (c) Drinks 2 liters of water per day
to NRC. However, DOE must vary fac- from wells drilled into the ground
tors related to the geology, hydrology, water at the location specified in para-
and climate based upon cautious, but graph (a) of this section.
reasonable assumptions of the changes
in these factors that could affect the HUMAN-INTRUSION STANDARD
Yucca Mountain disposal system dur-
ing the period of geologic stability, § 197.25 What standard must DOE
consistent with the requirements for meet?
performance assessments specified at (a) The DOE must determine the ear-
§ 197.36. liest time after disposal that the waste
[73 FR 61287, Oct. 15, 2008] package would degrade sufficiently
that a human intrusion (see § 197.26)
INDIVIDUAL-PROTECTION STANDARD could occur without recognition by the
drillers.
§ 197.20 What standard must DOE
meet? (b) The DOE must demonstrate that
there is a reasonable expectation that
(a) The DOE must demonstrate, using the reasonably maximally exposed in-
performance assessment, that there is dividual will receive an annual com-
a reasonable expectation that the rea- mitted effective dose equivalent, as a
sonably maximally exposed individual
result of the human intrusion, of no
receives no more than the following an-
more than:
nual committed effective dose equiva-
lent from releases from the undis- (1) 150 microsieverts (15 millirems)
turbed Yucca Mountain disposal sys- for 10,000 years following disposal; and
tem: (2) 1 millisievert (100 millirems) after
(1) 150 microsieverts (15 millirems) 10,000 years, but within the period of
for 10,000 years following disposal; and geologic stability.
(2) 1 millisievert (100 millirems) after (c) The analysis must include all po-
10,000 years, but within the period of tential environmental pathways of
geologic stability. radionuclide transport and exposure.

(b) The DOE’s performance assess-
[73 FR 61288, Oct. 15, 2008]
ment must include all potential path-
66
§ 197.26 What are the circumstances of (e) Only releases of radionuclides

the human intrusion? that occur as a result of the intrusion
and that are transported through the
For the purposes of the analysis of
resulting borehole to the saturated
human intrusion, DOE must make the
zone are projected; and
following assumptions: (f) No releases are included which are
(a) There is a single human intrusion caused by unlikely natural processes
as a result of exploratory drilling for and events.
ground water;
(b) The intruders drill a borehole di- GROUND WATER PROTECTION STANDARDS
rectly through a degraded waste pack-
age into the uppermost aquifer under- § 197.30 What standards must DOE
meet?
lying the Yucca Mountain repository;
(c) The drillers use the common tech- The DOE must demonstrate that
niques and practices that are currently there is a reasonable expectation that,
employed in exploratory drilling for for 10,000 years of undisturbed perform-
ground water in the region surrounding ance after disposal, releases of radio-
nuclides from waste in the Yucca
Yucca Mountain;
Mountain disposal system into the ac-
(d) Careful sealing of the borehole
cessible environment will not cause the
does not occur, instead natural deg- level of radioactivity in the representa-
radation processes gradually modify tive volume of ground water to exceed
the borehole; the limits in the following Table 1:
TABLE 1—LIMITS ON RADIONUCLIDES IN THE REPRESENTATIVE VOLUME
Is natural background
Radionuclide or type of radiation emitted Limit included?
Combined radium-226 and radium-228 ................... 5 picocuries per liter ............................................... Yes.
Gross alpha activity (including radium-226 but ex- 15 picocuries per liter ............................................. Yes.
cluding radon and uranium).
Combined beta and photon emitting radionuclides 40 microsieverts (4 millirem) per year to the whole No.
body or any organ, based on drinking 2 liters of
water per day from the representative volume.
§ 197.31 What is a representative vol- hydrologic characteristics which have

ume? cautious, but reasonable, values rep-
(a) It is the volume of ground water resentative of the aquifers along the
that would be withdrawn annually radionuclide migration path from the
from an aquifer containing less than Yucca Mountain repository to the ac-
10,000 milligrams of total dissolved sol- cessible environment as determined by
ids per liter of water to supply a given site characterization; and
water demand. The DOE must project (3) It contains 3,000 acre-feet of water
the concentration of radionuclides re- (about 3,714,450,000 liters or 977,486,000
leased from the Yucca Mountain dis- gallons).
posal system that will be in the rep- (b) The DOE must use one of two al-
resentative volume. The DOE must ternative methods for determining the
then use the projected concentrations dimensions of the representative vol-
to demonstrate a reasonable expecta- ume. The DOE must propose its chosen
tion to NRC that the Yucca Mountain method, and any underlying assump-
disposal system complies with § 197.30. tions, to NRC for approval.
The DOE must make the following as- (1) The DOE may calculate the di-
sumptions concerning the representa- mensions as a well-capture zone. If
tive volume: DOE uses this approach, it must as-
(1) It includes the highest concentra- sume that the:
tion level in the plume of contamina- (i) Water supply well(s) has (have)
tion in the accessible environment; characteristics consistent with public

(2) Its position and dimensions in the water supply wells in the Town of
aquifer are determined using average Amargosa Valley, Nevada, for example,
67
§ 197.35 40 CFR Ch. I (7–1–21 Edition)
well-bore size and length of the a higher chance of occurring if the re-
screened intervals; sults of the performance assessments
(ii) Screened interval(s) include(s) would not be changed significantly in
the highest concentration in the plume the initial 10,000-year period after dis-
of contamination in the accessible en- posal.
vironment; and (2) The same features, events, and
(iii) Pumping rates and the place- processes identified in paragraph (a)(1)
ment of the well(s) must be set to of this section shall be used in perform-
produce an annual withdrawal equal to ance assessments conducted to show
the representative volume and to tap compliance with §§ 197.20(a)(2) and
the highest concentration within the 197.25(b)(2), with additional consider-
plume of contamination. ations as stipulated in paragraph (c) of
(2) The DOE may calculate the di- this section.
mensions as a slice of the plume. If (b) For performance assessments con-
DOE uses this approach, it must: ducted to show compliance with
(i) Propose to NRC, for its approval, §§ 197.25(b) and 197.30, DOE’s perform-
where the location of the edge of the ance assessments shall exclude un-
plume of contamination occurs. For ex- likely features, events, or processes, or
ample, the place where the concentra- sequences of events and processes. The
tion of radionuclides reaches 0.1% of DOE should use the specific probability
the level of the highest concentration of the unlikely features, events, and
in the accessible environment; processes as specified by NRC.
(ii) Assume that the slice of the (c) For performance assessments con-
plume is perpendicular to the prevalent ducted to show compliance with
direction of flow of the aquifer; and §§ 197.20(a)(2) and 197.25(b)(2), DOE’s per-
(iii) Assume that the volume of formance assessments shall project the
ground water contained within the continued effects of the features,
slice of the plume equals the represent- events, and processes included in para-
ative volume. graph (a) of this section beyond the
ADDITIONAL PROVISIONS 10,000-year post-disposal period through
the period of geologic stability. The
§ 197.35 [Reserved] DOE must evaluate all of the features,
events, or processes included in para-
§ 197.36 Are there limits on what DOE graph (a) of this section, and also:
must consider in the performance (1) The DOE must assess the effects
assessments? of seismic and igneous scenarios, sub-
(a) Yes, there are limits on what DOE ject to the probability limits in para-
must consider in the performance as- graph (a) of this section for very un-
sessments. likely features, events, and processes.
(1) The DOE’s performance assess- Performance assessments conducted to
ments conducted to show compliance show compliance with § 197.25(b)(2) are
with §§ 197.20(a)(1), 197.25(b)(1), and also subject to the probability limits
197.30 shall not include consideration of for unlikely features, events, and proc-
very unlikely features, events, or processes as specified by NRC.
esses, i.e., those that are estimated to (i) The seismic analysis may be lim-
have less than one chance in 100,000,000 ited to the effects caused by damage to
per year of occurring. Features, events, the drifts in the repository, failure of
and processes with a higher chance of the waste packages, and changes in the
occurring shall be considered for use in elevation of the water table under
performance assessments conducted to Yucca Mountain. NRC may determine
show compliance with §§ 197.20(a)(1), the magnitude of the water table rise
197.25(b)(1), and 197.30, except as stipu- and its significance on the results of
lated in paragraph (b) of this section. the performance assessment, or NRC
In addition, unless otherwise specified may require DOE to demonstrate the
in these standards or NRC regulations, magnitude of the water table rise and
DOE’s performance assessments need its significance in the license applica-
not evaluate the impacts resulting tion. If NRC determines that the in-
from features, events, and processes or creased elevation of the water table
sequences of events and processes with does not significantly affect the results
68
of the performance assessment, NRC APPENDIX A TO PART 197—CALCULATION

may choose to not require its consider- OF ANNUAL COMMITTED EFFECTIVE
ation in the performance assessment. DOSE EQUIVALENT
(ii) The igneous analysis may be lim- Unless otherwise directed by NRC, DOE
ited to the effects of a volcanic event shall use the radiation weighting factors and
directly intersecting the repository. tissue weighting factors in this Appendix to
The igneous event may be limited to calculate the internal component of the an-
that causing damage to the waste nual committed effective dose equivalent for
packages directly, causing releases of compliance with §§ 197.20 and 197.25 of this
part. NRC may allow DOE to use updated
radionuclides to the biosphere, atmos- factors issued after the effective date of this
phere, or ground water. regulation. Any such factors shall have been
(2) The DOE must assess the effects issued by consensus scientific organizations
of climate change. The climate change and incorporated by EPA into Federal radi-
analysis may be limited to the effects ation guidance in order to be considered gen-
erally accepted and eligible for this use. Fur-
of increased water flow through the re- ther, they must be compatible with the effec-
pository as a result of climate change, tive dose equivalent dose calculation meth-
and the resulting transport and release odology established in ICRP 26 and 30, and
of radionuclides to the accessible envi- continued in ICRP 60 and 72, and incor-
ronment. The nature and degree of cli- porated in this appendix.
mate change may be represented by I. EQUIVALENT DOSE
constant climate conditions. The anal-
The calculation of the committed effective
ysis may commence at 10,000 years
dose equivalent (CEDE) begins with the de-
after disposal and shall extend through termination of the equivalent dose, HT, to a
the period of geologic stability. The tissue or organ, T, listed in Table A.2 below
NRC shall specify in regulation the val- by using the equation:
ues to be used to represent climate
change, such as temperature, precipita- H T = ∑ DT,R ⋅ w R
tion, or infiltration rate of water. R
(3) The DOE must assess the effects where DT,R is the absorbed dose in rads (one
of general corrosion on engineered bar- gray, an SI unit, equals 100 rads) averaged
riers. The DOE may use a constant rep- over the tissue or organ, T, due to radiation
resentative corrosion rate throughout type, R, and wR is the radiation weighting
factor which is given in Table A.1 below. The
the period of geologic stability or a dis- unit of equivalent dose is the rem (sievert, in
tribution of corrosion rates correlated SI units).
to other repository parameters.
TABLE A.1—RADIATION WEIGHTING FACTORS,
[73 FR 61288, Oct. 15, 2008]
WR1
§ 197.37 Can EPA amend this rule? Radiation type and energy range 2 wR value
Yes. We can amend this rule by con- Photons, all energies ......................................... 1
ducting another notice-and-comment Electrons and muons, all energies .................... 1
Neutrons, energy
rulemaking. Such a rulemaking must <10 keV ............................................... 5
include a public comment period. Also, 10 keV to 100 keV .............................. 10
we may hold one or more public hear- >100 keV to 2 MeV ............................. 20
>2 MeV to 20 MeV .............................. 10
ings, if we receive a written request to >20 MeV .............................................. 5
do so. Protons, other than recoil protons, >2 MeV ...... 5
Alpha particles, fission fragments, heavy nuclei 20
§ 197.38 Are the Individual Protection 1 All values relate to the radiation incident on the body or,
and Ground Water Protection for internal sources, emitted from the source.
2 See paragraph A14 in ICRP Publication 60 for the choice
Standards Severable? of values for other radiation types and energies not in the
table.
Yes. The individual protection and
ground water protection standards are II. EFFECTIVE DOSE EQUIVALENT
severable. The next step is the calculation of the ef-
fective dose equivalent, E. The probability of
occurrence of a stochastic effect in a tissue

or organ is assumed to be proportional to the
equivalent dose in the tissue or organ. The
69
ER15OC08.000</GPH>
constant of proportionality differs for the spread out in time, being gradually delivered
various tissues of the body, but in assessing as the radionuclide decays. The time dis-
health detriment the total risk is required. tribution of the absorbed dose rate will vary
This is taken into account using the tissue with the radionuclide, its form, the mode of
weighting factors, wT in Table A.2, which intake and the tissue within which it is in-
represent the proportion of the stochastic corporated. To take account of this distribu-
risk resulting from irradiation of the tissue tion the quantity committed equivalent dose,
or organ to the total risk when the whole HT(t) where t is the integration time in years
body is irradiated uniformly and HT is the
following an intake over any particular year,
equivalent dose in the tissue or organ, T, in
is used and is the integral over time of the
the equation:
equivalent dose rate in a particular tissue or
E = ∑ w T ⋅ HT .
organ that will be received by an individual
following an intake of radioactive material
into the body:
TABLE A.2—TISSUE WEIGHTING FACTORS, WT
t0 + τ
Tissue or organ
Gonads ..............................................................
wT value
0.20
H T (τ) = ∫
t0
H T ( t ) dt
Bone marrow (red) ............................................ 0.12
Colon ................................................................. 0.12 for a single intake of activity at time t0
Lung ................................................................... 0.12 where HT(t) is the relevant equivalent-dose
Stomach ............................................................. 0.12 rate in a tissue or organ at time t. For the
Bladder .............................................................. 0.05
Breast ................................................................ 0.05 purposes of this rule, the previously men-
Liver ................................................................... 0.05 tioned single intake may be considered to be
Esophagus ......................................................... 0.05 an annual intake.
Thyroid ............................................................... 0.05
Skin .................................................................... 0.01 IV. INTERNAL COMPONENT OF THE ANNUAL
Bone surface ..................................................... 0.01
a b 0.05
COMMITTED EFFECTIVE DOSE EQUIVALENT
Remainder .........................................................
a Remainder is composed of the following tissues: adrenals, If the annual committed equivalent doses
brain, extrathoracic airways, small intestine, kidneys, muscle, to the individual tissues or organs resulting
pancreas, spleen, thymus, and uterus.
b The value 0.05 is applied to the mass-weighted average from an annual intake are multiplied by the
dose to the Remainder tissues group, except when the fol- appropriate weighting factors, wT, from table
lowing ‘‘splitting rule’’ applies: If a tissue of Remainder re- A.2, and then summed, the result will be the
ceives a dose in excess of that received by any of the 12 tis-
sues for which weighting factors are specified, a weighting internal component of the annual committed
factor of 0.025 (half of Remainder) is applied to that tissue or effective dose equivalent E(t):
organ and 0.025 to the mass-averaged committed equivalent
E(τ) = ∑ w T ⋅ H T (τ).
dose equivalent in the rest of the Remainder tissues.
III. ANNUAL COMMITTED TISSUE OR ORGAN

T
EQUIVALENT DOSE
For internal irradiation from incorporated [73 FR 61288, Oct. 15, 2008]
radionuclides, the total absorbed dose will be
ER15OC08.002</GPH> ER15OC08.003</GPH>
70
ER15OC08.001</GPH>
SUBCHAPTER G—NOISE ABATEMENT PROGRAMS
PART 201—NOISE EMISSION SOURCE: 45 FR 1263, Jan. 4, 1980, unless oth-

erwise noted.
STANDARDS FOR TRANSPOR-
TATION EQUIPMENT; INTERSTATE Subpart A—General Provisions
RAIL CARRIERS
As used in this part, all terms not de-
Sec. fined herein shall have the meaning
201.1 Definitions. given them in the Act:
APPENDIX A TO SUBPART A OF PART 201— (a) Act means the Noise Control Act
SWITCHER LOCOMOTIVES of 1972 (Pub. L. 92–574, 86 Stat. 1234).
(b) Car Coupling Sound means a sound
Subpart B—Interstate Rail Carrier which is heard and identified by the ob-
Operations Standards server as that of car coupling impact,
and that causes a sound level meter in-
201.10 Applicability.
201.11 Standard for locomotive operation dicator (FAST) to register an increase
under stationary conditions. of at least ten decibels above the level
201.12 Standard for locomotive operation observed immediately before hearing
under moving conditions. the sound.
201.13 Standard for rail car operations. (c) Carrier means a common carrier
201.14 Standard for retarders. by railroad, or partly by railroad and
201.15 Standard for car coupling operations. partly by water, within the continental
201.16 Standard for locomotive load cell test United States, subject to the Interstate
stands. Commerce Act, as amended, excluding
Subpart C—Measurement Criteria street, suburban, and interurban elec-
tric railways unless operated as a part
201.20 Applicability and purpose. of a general railroad system of trans-
201.21 Quantities measured. portation.
201.22 Measurement instrumentation. (d) Classification of Railroads means
201.23 Test site, weather conditions and the division of railroad industry oper-
background noise criteria for measure- ating companies by the Interstate
ment at a 30 meter (100 feet) distance of
the noise from locomotive and rail car
Commerce Commission into three cat-
operations and locomotive load cell test egories. As of 1978, Class I railroads
stands. must have annual revenues of $50 mil-
201.24 Procedures for measurement at a 30 lion or greater, Class II railroads must
meter (100 feet) distance of the noise have annual revenues of between $10
from locomotive and rail car operations and $50 million, and Class III railroads
and locomotive load cell test stands. must have less than $10 million in an-
201.25 Measurement location and weather nual revenues.
conditions for measurement on receiving
(e) Commercial Property means any
property of the noise of retarders, car
coupling, locomotive load cell test property that is normally accessible to
stands, and stationary locomotives. the public and that is used for any of
201.26 Procedures for the measurement on the purposes described in the following
receiving property of retarder and car standard land use codes (reference
coupling noise. Standard Land Use Coding Manual. U.S.
201.27 Procedures for: (1) Determining appli- DOT/FHWA, reprinted March 1977): 53–
cability of the locomotive load cell test 59, Retail Trade; 61–64, Finance, Insur-
stand standard and switcher locomotive
ance, Real Estate, Personal, Business
standard by noise measurement on a re-
ceiving property; (2) measurement of lo- and Repair Services; 652–659, Legal and
comotive load cell test stands more than other professional services; 671, 672, and
120 meters (400 feet) on a receiving prop- 673 Governmental Services; 692 and 699,
erty. Welfare, Charitable and Other Mis-
201.28 Testing by railroad to determine cellaneous Services; 712 and 719, Nature
probable compliance with the standard. exhibitions and other Cultural Activi-
AUTHORITY: Noise Control Act of 1972, sec. ties; 721, 723, and 729, Entertainment,
17(a), 86 Stat. 1234 (42 U.S.C. 4916(a)). Public and other Public Assembly; and
71
§ 201.1 40 CFR Ch. I (7–1–21 Edition)
74–79, Recreational, Resort, Park and (n) Interstate Commerce means the
other Cultural Activities. commerce between any place in a State
(f) dB(A) is an abbreviation meaning and any place in another State, or be-
A-weighted sound level in decibels, ref- tween places in the same State through
erence: 20 micropascals. another State, whether such commerce
(g) Day-night Sound Level means the moves wholly by rail or partly by rail
24-hour time of day weighted equiva- and partly by motor vehicle, express,
lent sound level, in decibels, for any or water. This definition of ‘‘interstate
continuous 24-hour period, obtained commerce’’ for purposes of this regula-
after addition of ten decibels to sound tion is similar to the definition of
levels produced in the hours from 10 ‘‘interstate commerce’’ in section
p.m. to 7 a.m. (2200–0700). It is abbre- 203(a) of the Interstate Commerce Act
viated as Ldn. (49 U.S.C. 303(a)).
(h) Decibel means the unit measure of (o) Load Cell means a device external
sound level, abbreviated as dB. to the locomotive, of high electrical re-
(i) Energy Average Level means a sistance, used in locomotive testing to
quantity calculated by taking ten simulate engine loading while the loco-
times the common logarithm of the motive is stationary. (Electrical en-
arithmetic average of the antilogs of ergy produced by the diesel generator
one-tenth of each of the levels being is dissipated in the load cell resistors
averaged. The levels may be of any instead of the traction motors).
consistent type, e.g. maximum sound (p) Locomotive means for the purpose
levels, sound exposure levels, and day- of this regulation, a self-propelled vehi-
night sound levels. cle designed for and used on railroad
(j) Energy Summation of Levels means tracks in the transport or rail cars, in-
a quantity calculated by taking ten cluding self-propelled rail passenger ve-
times the common logarithm of the hicles.
sum of the antilogs of one-tenth of (q) Locomotive Load Cell Test Stand
each of the levels being summed. The means the load cell § 201.1(o) and asso-
levels may be of any consistent type, ciated structure, equipment, trackage
e.g., day-night sound level or equiva- and locomotive being tested.
lent sound level. (r) Maximum Sound Level means the
(k) Equivalent Sound Level means the greatest A-weighted sound level in
level, in decibels, of the mean-square decibels measured during the des-
A-weighted sound pressure during a ignated time interval or during the
stated time period, with reference to event, with either fast meter response
the square of the standard reference § 201.1(l) or slow meter response
sound pressure of 20 micropascals. It is § 201.1(ii) as specified. It is abbreviated
the level of the sound exposure divided as Lmax.
by the time period and is abbreviated (s) Measurement Period means a con-
as Leq. tinuous period of time during which
(l) Fast Meter Response means that noise of railroad yard operations is as-
the ‘‘fast’’ response of the sound level sessed, the beginning and finishing
meter shall be used. The fast dynamic times of which may be selected after
response shall comply with the meter completion of the measurements.
dynamic characteristics in paragraph (t) Rail Car means a non-self-pro-
5.3 of the American National Standard pelled vehicle designed for and used on
Specification for Sound Level Meters. railroad tracks.
ANSI S1.4–1971. This publication is (u) Railroad means all the roads in
available from the American National use by any common carrier operating a
Standards Institute, Inc., 1430 Broad- railroad, whether owned or operated
way, New York, New York 10018. under a contract, agreement, or lease.
(m) Idle means that condition where (v) Receiving Property Measurement
all engines capable of providing motive Location means a location on receiving
power to the locomotive are set at the property that is on or beyond the rail-
lowest operating throttle position; and road facility boundary and that meets
where all auxiliary non-motive power the receiving property measurement
engines are not operating. location criteria of subpart C.
72
(w) Receiving Property means any resi- (bb) Sound Exposure Level means the
dential or commercial property that level in decibels calculated as ten
receives the sound from railroad facil- times the common logarithm of time
ity operations, but that is not owned or integral of squared A-weighted sound
operated by a railroad; except that oc- pressure over a given time period or
cupied residences located on property event divided by the square of the
owned or controlled by the railroad are standard reference sound pressure of 20
included in the definition of ‘‘receiving micropascals and a reference duration
property.’’ For purposes of this defini- of one second.
tion railroad crew sleeping quarters lo- (cc) Sound Pressure Level (in stated
cated on property owned or controlled frequency band) means the level, in
by the railroad are not considered as decibels, calculated as 20 times the
residences. If, subsequent to the publi- common logarithm of the ratio of a
cation date of these regulations, the sound pressure to the reference sound
use of any property that is currently pressure of 20 micropascals.
not applicable to this regulation (dd) Special Purpose Equipment means
changes, and it is newly classified as maintenance-of-way equipment which
either residential or commercial, it is may be located on or operated from
not receiving property until four years rail cars including: Ballast cribbing
have elapsed from the date of the ac- machines, ballast regulators, condi-
tual change in use. tioners and scarifiers, bolt machines,
(x) Residential Property means any brush cutters, compactors, concrete
property that is used for any of the mixers, cranes and derricks, earth bor-
purposes described in the following ing machines, electric welding ma-
standard land use codes (ref. Standard chines, grinders, grouters, pile drivers,
Land Use Coding Manual. U.S. DOT/ rail heaters, rail layers, sandblasters,
FHWA Washington, DC, reprinted snow plows, spike drivers, sprayers and
March 1977): 1, Residential: 651, Medical other types of such maintenance-of-
and other Health Services; 68, Edu- way equipment.
cational Services; 691, Religious Activi- (ee) Special Track Work means track
ties; and 711, Cultural Activities. other than normal tie and ballast
(y) Retarder (Active) means a device bolted or welded rail or containing de-
or system for decelerating rolling rail vices such as retarders or switching
cars and controlling the degree of de- mechanisms.
celeration on a car by car basis. (ff) Statistical Sound Level means the
(z) Retarder Sound means a sound level in decibels that is exceeded in a
which is heard and identified by the ob- stated percentage (x) of the duration of
server as that of a retarder, and that the measurement period. It is abbre-
causes a sound level meter indicator at viated as Lx.
fast meter response § 201.1(l) to register (gg) Switcher Locomotive means any
an increase of at least ten decibels locomotive designated as a switcher by
above the level observed immediately the builder or reported to the ICC as a
before hearing the sound. switcher by the operator-owning-rail-
(aa) Sound Level means the level, in road and including, but not limited to,
decibels, measured by instrumentation all locomotives of the builder/model
which satisfies the requirements of designations listed in Appendix A to
American National Standard Specifica- this subpart.
tion for Sound Level Meters S1.4–1971 (hh) Warning Device means a sound
Type 1 (or S1A) or Type 2 if adjusted as emitting device used to alert and warn
shown in Table 1. This publication is people of the presence of railroad
available from the American National equipment.
Standards Institute, Inc., 1430 Broad- (ii) Slow Meter Response means that
way, New York, New York 10018. For the slow response of the sound level
the purpose of these procedures the meter shall be used. The slow dynamic
sound level is to be measured using the response shall comply with the meter
Aweighting of spectrum and either the dynamic characteristics in paragraph
FAST or SLOW dynamic averaging 5.4 of the American National Standard

characteristics, as designated. It is ab- Specification for Sound Level Meters.
breviated as LA. ANSI S1.4–1971. This publication is
73
Pt. 201, Subpt. A, App. A 40 CFR Ch. I (7–1–21 Edition)
available from the American National [The following locomotives are considered to be ‘‘switcher
locomotives’’ under the general definition of this regulation]
Standards Institute Inc., 1430 Broad-
way, New York, New York 10018. Type Engine
[45 FR 1263, Jan. 4, 1980, as amended at 47 FR Fairbanks Morse

14709, Apr. 6, 1982]
H–10–44 ................................................... 6–OP.
APPENDIX A TO SUBPART A OF PART H–12–44 ................................................... 6–OP.
H–12–44TS ............................................... 6–OP.
201—SWITCHER LOCOMOTIVES H–12–46 1 ................................................. 6–OP.
[The following locomotives are considered to be ‘‘switcher
locomotives’’ under the general definition of this regulation] Lima
Type Engine 750 hp. ...................................................... 6–Hamilton.

800 hp. ...................................................... 6–Hamilton.
General Electric Co. 1000 hp. .................................................... 8–Hamilton.
1200 hp. .................................................... 8–Hamilton.
44 ton ........................................................ 8–D17000(2). LRS 1 ......................................................... 8–Hamilton.
70 ton ........................................................ 6–CBFWL–6T. TL 1 ............................................................ 8–Hamilton (2).
95 ton ........................................................ 6–CBFWL–6T.
ALCO and MLW
Electromotive Division (GMC)
S1 .............................................................. 6–539NA.
SC ............................................................. 8–201A. S2 .............................................................. 6–539T.
NC ............................................................. 12–201A. S3 .............................................................. 6–539NA.
NC1 ........................................................... 12–201A.
S4 .............................................................. 6–539T.
NC2 ........................................................... 12–201A.
S5 .............................................................. 6–251.
NW ............................................................ 12–201A.
S6 .............................................................. 6–251A,B.
NW1 .......................................................... 12–201A.
S7 .............................................................. 6–539.
NW1A ........................................................ 12–201A.
NW2 .......................................................... 12–567. S10 ............................................................ 6–539.
NW2 .......................................................... 12–567A. S11 ............................................................ 6–539.
NW3 .......................................................... 12–567. S12 ............................................................ 6–539T.
NW4 .......................................................... 12–201A. S13 ............................................................ 6–251C.
NW5 .......................................................... 12–567B. RSD–1 ...................................................... 6–539.
SW ............................................................ 8–201A/6–567. RSC–13 .................................................... 6–539.
SW1 .......................................................... 6–567A/AC. RSC–24 .................................................... 12–244
SW2 .......................................................... 6–567. RS1 ........................................................... 6–539T.
SW3 .......................................................... 6–567. RS2 1 ......................................................... 12–244.
SW600 ...................................................... 6–567C. RS3 1 ......................................................... 12–244.
SW7 .......................................................... 12–567A. RS10 1 ....................................................... 12–244.
SW8 .......................................................... 8–567B/BC. RSC–2 1 .................................................... 12–244.
SW900 ...................................................... 8–567B. RS3 1 ......................................................... 12–244.
SW9 .......................................................... 12–567B/BC/C. RSD–4 1 .................................................... 12–244.
SW1200 .................................................... 12–567C. RSD–5 1 .................................................... 12–244.
SW1000 .................................................... 8–645E. T6 .............................................................. 6–251B.
SW1001 .................................................... 8–645E. C–415 1 ..................................................... 8–251F.
SW1500 .................................................... 12–645E. M–420TR .................................................. 12–251.
MP15 ......................................................... 12–645E. 1 These models may be found assigned to road service as
MP15AC .................................................... 12–645E.
well as switcher service, but are considered switcher loco-
GMD1 ........................................................ 12–567C. motives for the purpose of this regulation.
RS1325 ..................................................... 12–567C.
Transfer Switcher including ‘‘Cow and Calf’’ Subpart B—Interstate Rail Carrier
T ................................................................ 12–201A(2) Operations Standards
TR ............................................................. 12–567(2)
TR1 ........................................................... 16–567(2) § 201.10 Applicability.
TR2 ........................................................... 12–567A(2)
TR3 ........................................................... 12–567(3) The provisions of this subpart apply
TR4 ........................................................... 12–567A(2) to all rail cars and all locomotives, ex-
TR5 ........................................................... 12–567B(2)
TR6 ........................................................... 8–567B(2)
cept steam locomotives, operated or
controlled by carriers as defined in sub-
Baldwin part A of this part, except that § 201.11
VO–660 ..................................................... 6–VO.
(a), (b), and (c) do not apply to gas tur-
DS–446 ..................................................... 6–606NA. bine-powered locomotives and to any
DS4475 ..................................................... 6–750. locomotive type which cannot be con-
S–8 ............................................................ 6–606.
VO–1000 ................................................... 8–VO.
nected by any standard method to a
DS–4410 ................................................... 8–608NA. load cell. They apply to the total sound
DS–4410 ................................................... 6–606SC. level emitted by rail cars and loco-
S–12 .......................................................... 6–606A. motives operated under the conditions

DRS–4410 1 .............................................. 6–606SC.
DRS–12 1 .................................................. 6–606A. specified, including the sound produced
by refrigeration and air conditioning
74
units which are an integral element of metric center of the locomotive along
such equipment. The provisions of this a line that is both perpendicular to the
subpart apply to all active retarders, centerline of the track and originates
all car coupling operations, all switch- at the locomotive geometric center.
er locomotives, and all load cell test (c) Commencing January 15, 1984, no
stands. These provisions do not apply carrier subject to this regulation may
to the sound emitted by a warning de- operate any switcher locomotive to
vice, such as a horn, whistle or bell which this regulation is applicable, and
when operated for the purpose of safe- of which manufacture is completed on
ty. They do not apply to special pur- or before December 31, 1979, which pro-
pose equipment which may be located duces A-weighted sound levels in excess
on or operated from railcars; they do of 87 dB at any throttle setting except
not apply to street, suburban or inter- idle, when operated singly and when
urban electric railways unless operated connected to a load cell, or in excess of
as a part of a general railroad system 70 dB at idle, and when measured in ac-
of transportation. When land use cordance with the criteria specified in
changes after the publication date of Subpart C of this part with slow meter
this regulation from some other use to response at a point 30 meters (100 feet)
residential or commercial land use from the geometric center of the loco-
around a specific railyard facility, this motive along a line that is both per-
regulation will become effective four pendicular to the centerline of the
(4) years from the date of that land use track and originates at the locomotive
change. geometric center. All switcher loco-
motives that operate in a particular
§ 201.11 Standard for locomotive oper-
ation under stationary conditions. railroad facility are deemed to be in
compliance with this standard if the A-
(a) Commencing December 31, 1976, weighted sound level from stationary
no carrier subject to this regulation switcher locomotives, singly or in com-
shall operate any locomotive to which bination with other stationary loco-
this regulation is applicable, and of motives, does not exceed 65 dB when
which manufacture is completed on or measured with fast meter response at
before December 31, 1979, which pro- any receiving property measurement
duces A-weighted sound levels in excess location near that particular railyard
of 93 dB at any throttle setting except facility and when measured in accord-
idle, when operated singly and when ance wtih Subpart C of this regulation.
connected to a load cell, or in excess of
73 dB at idle when operated singly, and [45 FR 1263, Jan. 4, 1980; 47 FR 14709, Apr. 6,
when measured in accordance with the 1982]
criteria specified in Subpart C of this
part with slow meter response at a § 201.12 Standard for locomotive oper-
point 30 meters (100 feet) from the geo- ation under moving conditions.
metric center of the locomotive along (a) Commencing December 31, 1976,
a line that is both perpendicular to the no carrier subject to this regulation
centerline of the track and originates may operate any locomotive or com-
at the locomotive geometric center. bination of locomotives to which this
(b) No carrier subject to this regula- regulation is applicable, and of which
tion shall operate any locomotive to manufacture is completed on or before
which this regulation is applicable, and December 31, 1979, which produces A-
of which manufacture is completed weighted sound levels in excess of 96 dB
after December 31, 1979, which produces when moving at any time or under any
A-weighted sound levels in excess of 87 condition of grade, load, acceleration,
dB at any throttle setting except idle, or deceleration, when measured in ac-
when operated singly and when con- cordance with the criteria specified in
nected to a load cell, or in excess of 70 Subpart C of this regulation with fast
dB at idle when operated singly, and meter response at 30 meters (100 feet)
when measured in accordance with the from the centerline of any section of
criteria specified in Subpart C of this track having less than a two (2) degree
part with slow meter response at a curve (or a radius of curvature greater
point 30 meters (100 feet) from the geo- than 873 meters (2865 feet)).
75
§ 201.13 40 CFR Ch. I (7–1–21 Edition)
(b) No carrier subject to this regula- cluding 75 km/hr (45 mph); or (2) 93
tion may operate any locomotive or dB(A) at rail car speeds greater than 72
combination of locomotives to which km/hr (45 mph); when measured in ac-
this regulation is applicable, and of cordance with the criteria specified in
which manufacture is completed after Subpart C of this part with fast meter
December 31, 1979, which produce A- response at 30 meters (100) feet from
weighted sound levels in excess of 90 dB the centerline of any section of track
when moving at any time or under any which is free of special track work or
condition of grade, load, acceleration, bridges or trestles and which exhibits
or deceleration, when measured in ac- less than a two (2) degree curve (or a
cordance with the criteria specified in radius of curvature greater than 873
Subpart C of this part with fast meter meters (2,865 feet)).
response at 30 meters (100 feet) from
[45 FR 1263, Jan. 4, 1980; 47 FR 14709, Apr. 6,
the centerline of any section of track
1982]
having less than a two (2) degree curve
(or a radius of curvature greater than § 201.14 Standard for retarders.
873 meters (2,865 feet)).
(c) Commencing January 15, 1984, no Effective January 15, 1984, no carrier
carrier subject to this regulation may subject to this regulation shall operate
operate any switcher locomotive or a retarders that exceed an adjusted aver-
combination of switcher locomotives age maximum A-weighted sound level
to which this regulation is applicable, of 83 dB at any receiving property
and of which manufacture is completed measurement location, when measured
on or before December 31, 1979 which with fast meter response in accordance
produce A-weighted sound levels in ex- with Subpart C of this part.
cess of 90 dB when moving at any time [45 FR 1263, Jan. 4, 1980; 47 FR 14709, Apr. 6,
or under any condition of grade, load, 1982]
acceleration or deceleration, and when
measured in accordance with the cri- § 201.15 Standard for car coupling op-
teria in Subpart C of this part with fast erations.
meter response at 30 meters (100 feet) Effective January 15, 1984, no carrier
from the centerline of any section of subject to this regulation shall conduct
track having less than a two (2) degree car coupling operations that exceed an
curve (or a radius of curvature greater adjusted average maximum A-weighted
than 873 meters (2,865 feet)). All switch- sound level of 92 dB at any receiving
er locomotives that operate in a par- property measurement location, when
ticular railroad facility are deemed to measured with fast meter response in
be in compliance with this standard if accordance with Subpart C of this part,
the A-weighted sound level from sta- except, such coupling will be found in
tionary switcher locomotives, singly or compliance with this standard and the
in combination with other stationary carrier will be considered in compli-
locomotives, does not exceed 65 dB ance, if the railroad demonstrates that
when measured with fast meter re- the standard is exceeded at the receiv-
sponse at any receiving property meas- ing property measurement locations
urement location near that particular (where the standard was previously ex-
railyard facility and when measured in ceeded) when cars representative of
accordance with Subpart C of this reg- those found to exceed the standard are
ulation. coupled at similar locations at cou-
pling speeds of eight miles per hour or
[45 FR 1263, Jan. 4, 1980; 47 FR 14709, Apr. 6,
1982] less.
[45 FR 1263, Jan. 4, 1980; 47 FR 14709, Apr. 6,
§ 201.13 Standard for rail car oper- 1982]
ations.
Effective December 31, 1976, no car- § 201.16 Standard for locomotive load
rier subject to this regulation shall op- cell test stands.
erate any rail car or combination of (a) Effective January 15, 1984, no car-
rail cars which while in motion rier subject to this reguation shall op-
produce sound levels in excess of (1) 88 erate locomotive load cell test stands
dB(A) at rail car speeds up to and in- that exceed an A-weighted sound level
76
of 78 dB when measured with slow § 201.21 Quantities measured.

meter response in accordance with The quantities to be measured under
Subpart C of this part excluding § 201.23 the test conditions described below, are
(b) and (c), at a point 30 meters (100 the A-weighted sound levels for ‘‘fast’’
feet) from the geometric center of the or ‘‘slow’’ meter response as defined in
locomotive undergoing test, along a the American National Standard S1.4–
line that is both perpendicular to the 1971.
centerline of the track and originates
at the locomotive geometric center, § 201.22 Measurement instrumenta-
and in the direction most nearly to- tion.
wards the closest receiving property (a) A sound level meter or alternate
measurement location. All locomotive sound level measurement system that
load cell test stands in a particular meets, as a minimum, all the require-
railroad facility are in compliance with ments of American National Standard
this standard if the A-weighted sound S1.4–1971 1 for a Type 1 (or S1A) instru-
level from the load cell does not exceed ment must be used with the ‘‘fast’’ or
‘‘slow’’ meter response chacteristic as
65 dB at any receiving property meas-
specified in Subpart B. To insure Type
urement location near that particular
1 response, the manufacturer’s instruc-
railyard facility and when measured tions regarding mounting or orienting
with fast meter response in accordance of the microphone, and positioning of
with Subpart C of this regulation. the observer must be observed. In the
(b) If the conditions of any part of event that a Type 1 (or S1A) instru-
§ 201.23(a) cannot be met at a specific ment is not available for determining
load cell test stand site, then the A- non-compliance with this regulation,
weighted sound level from that specific the measurements may be made with a
load cell test stand must not exceed 65 Type 2 (or S2A), but with the measured
dB when measured with fast meter re- levels reduced by the following amount
sponse at a receiving property meas- to account for possible measurement
urement location more than 120 meters instrument errors pertaining to spe-
(400 feet) from the geometric center of cific measurements and sources:
the locomotive being tested and in ac-
TABLE 1—SOUND LEVEL CORRECTIONS WHEN
cordance with Subpart C of this regula- USING A TYPE 2 (OR S2A) INSTRUMENT
tion.
Measurement Deci-
[45 FR 1263, Jan. 4, 1980; 47 FR 14709, Apr. 6, Source
section bels 1
1982]
201.24 ............. Locomotives ................................... 0
Rail cars ......................................... 0
Subpart C—Measurement Criteria 201.26 .............
Locomotive load cell test stand .....
Retarder .........................................
0
4
Car coupling ................................... 2
§ 201.20 Applicability and purpose. 201.27 ............. Locomotive load cell test stand ..... 0
Stationary locomotive .................... 0
The following criteria are applicable
1 Amount of correction to be subtracted from measured
to and contain the necessary param- level (dB).
eters and procedures for the measure-
ment of the noise emission levels pre- (b) A microphone windscreen and an
scribed in the standards of Subpart B acoustic calibrator of the coupler type
of this part. These criteria are speci- must be used as recommended by: (1)
the manufacturer of the sound level
fied in order to further clarify and de-
meter or (2) the manufacturer of the
fine such standards. Equivalent meas- microphone. The choice of both devices
urement procedures may be used for es- must be based on ensuring that Type 1
tablishing compliance with these regu- or 2 performance, as appropriate, is
lations. Any equivalent measurement maintained for frequencies below 10,000
procedure, under any circumstance, Hz.
shall not result in a more stringent
noise control requirement than those 1 American National Standards are avail-
specified in this regulation using the able from the American National Standards
measurement procedures in Subpart C. Institute, Inc., 1430 Broadway, New York, NY
10018.
77
§ 201.23 40 CFR Ch. I (7–1–21 Edition)
§ 201.23 Test site, weather conditions level measured during the test. For the
and background noise criteria for locomotive and rail car pass-by tests
measurement at a 30 meter (100 this requirement applies before and
feet) distance of the noise from lo- after the train containing the rolling
comotive and rail car operations stock to be tested has passed. This
and locomotive load cell test stands. background sound level measurement
(a) The standard test site shall be shall include the contribution from the
such that the locomotive or train radi- operation of the load cell, if any, in-
ates sound into a free field over the cluding load cell contribution during
ground plane. This condition may be test.
considered fulfilled if the test site con- (h) Noise measurements may only be
sists of an open space free of large, made if the measured wind velocity is
sound reflecting objects, such as bar- 19.3 km/hr (12 mph) or less. Gust wind
riers, hills, signboards, parked vehicles, measurements of up to 33.2 km/hr (20
locomotives or rail cars on adjacent mph) are allowed.
tracks, bridges or buildings within the
boundaries described by Figure 1, as § 201.24 Procedures for measurement
well as conforms to the other require- at a 30 meter (100 feet) distance of
ments of this § 201.23. the noise from locomotive and rail
(b) Within the complete test site, the car operations and locomotive load
cell test stands.
top of at least one rail upon which the
locomotive or train is located shall be (a) Microphone positions. (1) The
visible (line of sight) from a position microphone shall be located within the
1.2 meters (4 feet) above the ground at test site according to the specifications
the microphone location, except as pro- given in the test procedures of para-
vided in paragraph (c) of this section. graphs (b), (c) and (d) of this section,
(c) Ground cover such as vegetation, and shall be positioned 1.2 meters (4
fenceposts, small trees, telephone feet) above the ground. It shall be ori-
poles, etc., shall be limited within the ented with respect to the source in ac-
area in the test site between the vehi- cordance with the manufacturer’s rec-
cle under test and the measuring ommendations.
microphone such that 80 percent of the (2) The observer shall not stand be-
top of at least one rail along the entire tween the microphone and the source
test section of track be visible from a whose sound level is being measured.
position 1.2 meters (4 feet) above the (b) Stationary locomotive and loco-
ground at the microphone location; ex- motive load cell test stand tests. (1) For
cept that no single obstruction shall stationary locomotive and locomotive
account for more than 5 percent of the load cell test stand tests, the micro-
total allowable obstruction. phone shall be positioned on a line per-
(d) The ground elevation at the pendicular to the track at a point 30
microphone location shall be within meters (100 feet) from the track center-
plus 1.5 meters (5 feet) or minus 3.0 me- line at the longitudinal midpoint of the
ters (10 feet) of the elevation of the top locomotive.
of the rail at the location in-line with (2) The sound level meter shall be ob-
the microphone. served for thirty seconds after the test
(e) Within the test site, the track throttle setting is established to assure
shall exhibit less than a 2 degree curve operating stability. The maximum
or a radius of curvature greater than sound level observed during that time
873 meters (2,865 feet). This paragraph shall be utilized for compliance pur-
shall not apply during a stationary poses.
test. The track shall be tie and ballast, (3) Measurement of stationary loco-
free of special track work and bridges motive and locomotive load cell test
or trestles. stand noise shall be made with all cool-
(f) Measurements shall not be made ing fans operating.
during precipitation. (c) Rail car pass-by test. (1) For rail
(g) The maximum A-weighted fast re- car pass-by tests, the microphone shall
sponse sound level observed at the test be positioned on a line perpendicular to

site immediately before and after the the track 30 meters (100 feet) from the
test shall be at least 10 dB(A) below the track centerline.
78
(2) Rail car noise measurements shall (4) Noise levels shall not be recorded
be made when the locomotives have if brake squeal is present during the
passed a distance 152.4 meters (500 feet) test measurement.
or 10 rail cars beyond the point at the (d) Locomotive pass-by test. (1) For lo-
intersection of the track and the line comotive pass-by tests, the microphone
which extends perpendicularly from shall be positioned on a line perpen-
the track to the microphone location, dicular to the track at a point 30 me-
providing any other locomotives are ters (100 feet) from the track center-
also at least 152.4 meters (500 feet) or 10 line.
rail car lengths away from the meas- (2) The noise level shall be measured
uring point. The maximum sound level as the locomotive approaches and
observed in this manner which exceeds passes by the microphone location. The
the noise levels specified in § 201.13 maximum noise level observed during
shall be utilized for compliance pur- this period shall be utilized for compli-
poses. ance purposes.
(3) Measurements shall be taken on (3) Measurements shall be taken on
reasonably well maintained tracks. reasonably well maintained tracks.
79
§ 201.24 40 CFR Ch. I (7–1–21 Edition)
RS
TE
ME
30
30 METERS
RS MICROPHONE
E TE
LOCATION
30M
Figure 1. Test Site Clearance Requirement for Stationary

Locomotive, Locomotive Pass-by, Rail Car
Pass-by, and Locomotive Load Cell Test Stand
Tests.
80
EN30SE99.055</GPH>
§ 201.25 Measurement location and ured. The measurement period must be

weather conditions for measure- at least 60 minutes and not more than
ment on receiving property of the 240 minutes.
noise of retarders, car coupling, lo- (3) Adjusted average maximum A-
comotive load cell test stands, and
stationary locomotives. weighted sound level. The energy aver-
age level for the measured retarder
(a) Measurements must be conducted sounds must be calculated to deter-
only at receiving property measure- mine the value of the average max-
ment locations.
imum A-weighted sound level (Lave max).
(b) Measurement locations on receiv-
This value is then adjusted by adding
ing property must be selected such
the adjustment (C) from Table 2 appro-
that no substantially vertical plane
surface, other than a residential or priate to the number of measurements
commercial unit wall or facility bound- divided by the duration of the measure-
ary noise barrier, that exceeds 1.2 me- ment period (n/T), to obtain the ad-
ters (4 feet) in height is located within justed average maximum A-weighted
10 meters (33.3 feet) of the microphone sound level (Ladj ave max) for retarders.
and that no exterior wall of a residen- (b) Car coupling impact—(1) Micro-
tial or commercial structure is located phone. The microphone must be located
within 2.0 meters (6.6 feet) of the on the receiving property and at a dis-
microphone. If the residential struc- tance of at least 30 meters (100 feet)
ture is a farm home, measurements from the centerline of the nearest
must be made 2.0 to 10.0 meters (6.6 to track on which car coupling occurs and
33.3 feet) from any exterior wall. its sound is measured (that is, either
(c) No measurement may be made the microphone is located 30 meters
when the average wind velocity during (100 feet) from the nearest track on
the period of measurement exceeds 19.3 which couplings occur, or all sounds re-
km/hr (12 mph) or when the maximum sulting from car coupling impacts that
wind gust velocity exceeds 32.2 km/hr occur on tracks with centerlines lo-
(20 mph). cated less than 30 meters (100 feet)
(d) No measurement may be taken from the microphone are disregarded).
when precipitation, e.g., rain, snow, The microphone shall be positioned at
sleet, or hail, is occurring.
a height between 1.2 and 1.5 meters (4
§ 201.26 Procedures for the measure- and 5 feet) above the ground, and it
ment on receiving property of re- must be positioned with respect to the
tarder and car coupling noise. equipment in accordance with the man-
(a) Retarders—(1) Microphone. The ufacturers’ recommendations for Type
microphone must be located on the re- 1 or 2 performance as appropriate. No
ceiving property and positioned at a person may stand between the micro-
height between 1.2 and 1.5 meters (4 to phone and the equipment being meas-
5 feet) above the ground. The micro- ured or be otherwise positioned rel-
phone must be positioned with respect ative to the microphone at variance
to the equipment in accordance with with the manufacturers’ recommenda-
the manufacturers’ recommendations tions for Type 1 or 2 performance as ap-
for Type 1 or 2 performance as appro- propriate.
priate. No person may stand between (2) Data. The maximum A-weighted
the microphone and the equipment sound levels (FAST) for every car cou-
being measured or be otherwise posi- pling impact sound observed during the
tioned relative to the microphone at measurement period must be read from
variance with the manufacturers’ rec- the indicator and recorded. At least 30
ommendations for Type 1 or 2 perform- consecutive car coupling impact sounds
ance as appropriate. must be measured. The measurement
(2) Data. The maximum A-weighted period must be at least 60 minutes and
sound levels (FAST) for every retarder not more than 240 minutes, and must
sound observed during the measure-
be reported.
ment period must be read from the in-
dicator and recorded. At least 30 con-
secutive retarder sounds must be meas-
81
§ 201.27 40 CFR Ch. I (7–1–21 Edition)
TABLE 2—ADJUSTMENT TO Lave max TO OBTAIN (b) Data. (1) When there is evidence
Ladj ave max FOR RETARDERS AND CAR COU- that at least one of these two types of
PLING IMPACTS 1 nearly steady state sound sources is af-
[n/T = number of measurements/measurement duration (min) fecting the noise environment, the fol-
C = Adjustment in dB] lowing measurements must be made.
0.111 to 0.141 .............................................................. ¥9
0.142 to 0.178 .............................................................. ¥8
The purpose of these measurements is
0.179 to 0.224 .............................................................. ¥7 to determine the A-weighted L90 statis-
0.225 to 0.282 .............................................................. ¥6 tical sound level, which is to be used as
0.283 to 0.355 .............................................................. ¥5
0.356 to 0.447 .............................................................. ¥4
described in subparagraph (c) below to
0.448 to 0.562 .............................................................. ¥3 determine the applicability of the
0.563 to 0.708 .............................................................. ¥2 source standards. Before this deter-
0.709 to 0.891 .............................................................. ¥1
0.892 to 1.122 .............................................................. 0
mination can be made, the measured
1.123 to 1.413 .............................................................. +1 L90 is to be ‘‘validated’’ by comparing
1.414 to 1.778 .............................................................. +2 the measured L10 and L99 statistical
1.779 to 2.239 .............................................................. +3 sound levels. If the difference between
2.240 to 2.818 .............................................................. +4
2.819 to 3.548 .............................................................. +5 these levels is sufficiently small (4 dB
3.549 to 4.467 .............................................................. +6 or less), the source(s) being measured is
1L
adj ave max = Lave max + C in dB. considered to be a nearly steady state
Values in Table 2 were calculated from [C = 10 log n/T]
with intervals selected to round off values to the nearest source.
whole decibel. The table may be extended or interpolated to (2) Data shall be collected by meas-
finer interval gradations by using this defining equation.
uring the instantaneous A-weighted
(3) Adjusted average maximum A- sound level (FAST) at a rate of at least
weighted sound level. The energy aver- once each 10 seconds for a measure-
age level for the measured car coupling ment period of at least 15 minutes and
sounds is calculated to determine the until 100 measurements are obtained.
average maximum sound level (Lave max). The data may be taken manually by di-
It is then adjusted by adding the ad- rect reading of the indicator at 10 sec-
justment (C) from Table 2 appropriate ond intervals (±1 second), or by attach-
to the number of measurements divided ing a statistical analyzer, graphic level
by the duration of the measurement recorder, or other equivalent device to
period (n/T), to obtain the adjusted av- the sound level meter for a more con-
erage maximum A-weighted sound tinuous recording of the instantaneous
level (Ladj ave max) for car coupling im- sound level.
pacts. (3) The data shall be analyzed to de-
termine the levels exceeded 99%, 90%,
§ 201.27 Procedures for: (1) Deter- and 10% of the time, i.e., L99, L90, and
mining applicability of the loco-
motive load cell test stand standard L10, respectively. The value of L90 is
and switcher locomotive standard considered a valid measure of the A-
by noise measurement on a receiv- weighted sound level for the standards
ing property; (2) measurement of lo- in § 201.16 only if the difference between
comotive load cell test stands more L10 and L99 has a value of 4 dB or less.
than 120 meters (400 feet) on a re- If a measured value of L90 is not valid
ceiving property. for this purpose, measurements may be
(a) Microphone. The microphone must taken over a longer period to attempt
be located at a receiving property to improve the certainty of the meas-
measurement location and must be po- urement and to validate L90. If L90 is
sitioned at a height between 1.2 and 1.5 valid and is less than the level in appli-
meters (4 and 5 feet) above the ground. cable standards for these source types,
Its position with respect to the equip- the sources are in compliance. If the
ment must be in accordance with the measured value of L90 is valid and ex-
manufacturers’ recommendations for ceeds the initial 65 dB requirement for
Type 1 or 2 performance as appropriate. any of the source types that appear to
No person may stand between the be affecting the noise environments,
microphone and the equipment being the evaluation according to the fol-
measured or be otherwise positioned lowing paragraph (c) is required.
relative to the microphone at variance (c) Determination of applicability of the
to the manufacturers’ recommenda- standard when L90 is validated and is in

tions for Type 1 or Type 2 performance excess of one or more of the source stand-
as appropriate. ards. The following procedures must be
82
used to determine the compliance of source types is found not to be in com-

the various source types when L90 is pliance with the applicable standard(s),
validated and in excess of one or more documentation of noise source infor-
of the applicable standards. mation shall be necessary. This will in-
(1) The principal direction of the clude, but not be limited to, the ap-
nearly steady-state sound at the meas- proximate location of all sources of
urement location must be determined, each source type present and the
if possible, by listening to the sound microphone position on a diagram of
and localizing its apparent source(s). If the particular railroad facility, and the
the observer is clearly convinced by distances between the microphone lo-
this localization process that the sound cation and each of the sources must be
emanates only from one or both of estimated and reported. Additionally,
these two sources, then: if other rail or non-rail noise sources
(i) If only stationary locomotive(s), are detected, they must be identified
including at least one switcher loco- and similarly reported.
motive, are present, the value of L90 is (3) If it can be demonstrated that the
the value of the A-weighted sound level validated L90 is less than 5 dB greater
to be used in determining if the 65 dB than any L90 measured at the same re-
requirement is exceeded and compli- ceiving property location when the
ance with the standards in §§ 201.11(c) source types that were operating dur-
and 201.12(c) is necessary. ing the initial measurement(s) are ei-
(ii) If only a locomotive load cell test ther turned off or moved, such that
stand and the locomotive being tested they can no longer be detected, the ini-
are present and operating, the value of tial value(s) of L90 must not be used for
L90 is the value of the A-weighted determining applicability to the stand-
sound level to be used in determining ards. This demonstration must be made
applicability of the standard in § 201.16. at a time of day comparable to that of
(iii) If a locomotive load cell test the initial measurements and when all
stand(s) and the locomotive being test- other conditions are acoustically simi-
ed are present and operating with sta- lar to those reported in paragraph (c)(2)
tionary locomotive(s), including at of this section.
least one switcher locomotive, the
value L90 minus 3 dB is the value of the [45 FR 1263, Jan. 4, 1980; 47 FR 14709, Apr. 6,
1982]
A-weighted sound level to be used in
determining applicability of the stand- § 201.28 Testing by railroad to deter-
ards in §§ 201.11(c), 201.12(c) and 201.16. mine probable compliance with the
(iv) If a locomotive load cell test standard.
stand(s) and the locomotive being test-
ed are present and operating, and a sta- (a) To determine whether it is prob-
tionary locomotive(s) is present, and if ably complying with the regulation,
the nearly steady-state sound level is and therefore whether it should insti-
observed to change by 10 dB, coincident tute noise abatement, a railroad may
with evidence of a change in operation take measurements on its own prop-
of the locomotive load cell test stand erty at locations that:
but without apparent change in the lo- (1) Are between the source and re-
cation of stationary locomotives, an- ceiving property
other measurement of L90 must be (2) Derive no greater benefit from
made in accordance with paragraph (b) shielding and other noise reduction fea-
of this section. If this additional meas- tures that does the receiving property;
ure of L90 is validated and differs from and
the initial measure of L90 by an abso- (3) Otherwise meet the requirements
lute value of 10 dB or more, then the of § 201.25.
higher value of L90 is the value of the (b) Measurements made for this pur-
A-weighted sound level to be used in pose should be in accordance with the
determining applicability of the stand- appropriate procedures in § 201.26 or
ard in § 201.16. § 201.27. If the resulting level is less
(2) In order to accomplish the com- than the level stated in the standard,
parison demonstration of paragraph then there is probably compliance with
(c)(3) of this section, when one or more the standard.
83
(c) This procedure is set forth to as- meet the distinct need of each indi-
sist the railroad in devising its compli- vidual customer.
ance plan, not as a substantive require- (d) Cutout or by-pass or similar devices
ment of the regulation. means devices which vary the exhaust
system gas flow so as to discharge the
PART 202—MOTOR CARRIERS EN- exhaust gas and acoustic energy to the
GAGED IN INTERSTATE COM- atmosphere without passing through
MERCE the entire length of the exhaust sys-
tem, including all exhaust system
Subpart A—General Provisions sound attenuation components.
(e) dB(A) means the standard abbre-
Sec. viation for A-weighted sound level in
202.10 Definitions. decibels.
202.11 Effective date. (f) Exhaust system means the system
202.12 Applicability. comprised of a combination of compo-
Subpart B—Interstate Motor Carrier nents which provides for enclosed flow
Operations Standards of exhaust gas from engine parts to the
atmosphere.
202.20 Standards for highway operations. (g) Fast meter response means that the
202.21 Standard for operation under sta- fast dynamic response of the sound
tionary test. level meter shall be used. The fast dy-
202.22 Visual exhaust system inspection. namic response shall comply with the
202.23 Visual tire inspection.
meter dynamic characteristics in para-
AUTHORITY: Sec. 18, 36 Stat. 1249, 42 U.S.C. graph 5.3 of the American National
4917(a). Standard Specification for Sound Level
Meters, ANSI S1. 4–1971. This publica-
Subpart A—General Provisions tion is available from the American
National Standards Institute, Inc., 1420
§ 202.10 Definitions. Broadway, New York, New York 10018.
As used in this part, all terms not de- (h) Gross Vehicle Weight Rating
fined herein shall have the meaning (GVWR) means the value specified by
given them in the Act: the manufacturer as the loaded weight
(a) Act means the Noise Control Act of a single vehicle.
of 1972 (Pub. L. 92–574, 86 Stat. 1234). (i) Gross Combination Weight Rating
(b) Common carrier by motor vehicle (GCWR) means the value specified by
means any person who holds himself the manufacturer as the loaded weight
out to the general public to engage in of a combination vehicle.
the transportation by motor vehicle in (j) Highway means the streets, roads,
interstate or foreign commerce of pas- and public ways in any State.
sengers or property or any class or (k) Interstate commerce means the
classes thereof for compensation, commerce between any place in a State
whether over regular or irregular and any place in another State or be-
routes. tween places in the same State through
(c) Contract carrier by motor vehicle another State, whether such commerce
means any person who engages in moves wholly by motor vehicle or part-
transportation by motor vehicle of pas- ly by motor vehicle and partly by rail,
sengers or property in interstate or for- express, water or air. This definition of
eign commerce for compensation ‘‘interstate commerce’’ for purposes of
(other than transportation referred to these regulations is the same as the
in paragraph (b) of this section) under definition of ‘‘interstate commerce’’ in
continuing contracts with one person section 203(a) of the Interstate Com-
or a limited number of persons either merce Act. [49 U.S.C. 303(a)]
(1) for the furnishing of transportation (l) Motor carrier means a common car-
services through the assignment of rier by motor vehicle, a contract car-
motor vehicles for a continuing period rier by motor vehicle, or a private car-
of time to the exclusive use of each rier of property by motor vehicle as

person served or (2) for the furnishing those terms are defined by paragraphs
of transportation services designed to (14), (15), and (17) of section 203(a) of
84
the Interstate Commerce Act [49 U.S.C. § 202.12 Applicability.

303(a)]. (a) The provisions of Subpart B apply
(m) Motor vehicle means any vehicle, to all motor carriers engaged in inter-
machine, tractor, trailer, or state commerce.
semitrailer propelled or drawn by me- (b) The provisions of Subpart B apply
chanical power and used upon the high- only to those motor vehicles of such
ways in the transportation of pas- motor carriers which have a gross vehi-
sengers or property, or any combina- cle weight rating or gross combination
tion thereof, but does not include any weight rating in excess of 10,000
vehicle, locomotive, or car operated ex- pounds, and only when such motor ve-
clusively on a rail or rails. hicles are operating under the condi-
(n) Muffler means a device for abat- tions specified in Subpart B.
ing the sound of escaping gases of an (c) Except as provided in paragraphs
internal combustion engine. (d) and (e) of this section, the provi-
(o) Open site means an area that is es- sions of Subpart B apply to the total
sentially free of large sound-reflecting sound produced by such motor vehicles
objects, such as barriers, walls, board when operating under such conditions,
including the sound produced by auxil-
fences, signboards, parked vehicles,
iary equipment mounted on such motor
bridges, or buildings.
vehicles.
(p) Private carrier of property by motor (d) The provisions of Subpart B do
vehicle means any person not included not apply to auxiliary equipment
in terms ‘‘common carrier by motor ve- which is normally operated only when
hicle’’ or ‘‘contract carrier by motor the transporting vehicle is stationary
vehicle’’, who or which transports in or is moving at a speed of 5 miles per
interstate or foreign commerce by hour or less. Examples of such equip-
motor vehicle property of which such ment include, but are not limited to,
person is the owner, lessee, or bailee, cranes, asphalt spreaders, ditch dig-
when such transportation is for sale, gers, liquid or slurry pumps, air com-
lease, rent or bailment, or in further- pressors, welders, and trash compac-
ance of any commercial enterprise. tors.
(q) Sound level means the quantity in (e) The provisions of Subpart B do
decibles measured by a sound level not apply to warning devices, such as
meter satisfying the requirements of horns and sirens; or to emergency
American National Standards Speci- equipment and vehicles such as fire en-
fication for Sound Level Meters S1.4– gines, ambulances, police vans, and res-
1971. This publication is available from cue vans, when responding to emer-
the American National Standards In- gency calls; or to snow plows when in
operation.
stitute, Inc., 1430 Broadway, New York,
(f) The provisions of § 202.20(a) and
New York 10018. Sound level is the fre-
§ 202.21(a) of Subpart B apply only to
quency-weighted sound pressure level applicable motor vehicles manufac-
obtained with the standardized dy- tured prior to the 1986 model year.
namic characteristic ‘‘fast’’ or ‘‘slow’’ (g) The provisions of § 202.20(b) and
and weighting A, B, or C; unless indi- § 202.21(b) apply to all applicable motor
cated otherwise, the A-weighting is un- vehicles manufactured during or after
derstood. the 1986 model year.
[39 FR 38215, Oct. 29, 1974] [39 FR 38215, Oct. 29, 1974, as amended at 51
FR 852, Jan. 8, 1986]
The provisions of Subpart B shall be- Subpart B—Interstate Motor
come effective October 15, 1975, except Carrier Operations Standards
that the provisions of § 202.20(b) and
§ 202.21(b) of Subpart B shall apply to § 202.20 Standards for highway oper-
ations.
motor vehicles manufactured during or
after the 1986 model year. (a) No motor carrier subject to these
regulations shall operate any motor ve-
[51 FR 852, Jan. 8, 1986] hicle of a type to which this regulation
85
§ 202.21 40 CFR Ch. I (7–1–21 Edition)
is applicable which at any time or hicle stationary, transmission in neu-

under any condition of highway grade, tral, and clutch engaged. This para-
load, acceleration or deceleration gen- graph shall not apply to any vehicle
erates a sound level in excess of which is not equipped with an engine
86dB(A) measured on an open site with speed governor.
fast meter response at 50 feet from the
[39 FR 38215, Oct. 29, 1974, as amended at 51
centerline of lane of travel on high-
FR 852, Jan. 8, 1986]
ways with speed limits of 35 MPH or
less; or 90 dB(A) measured on an open § 202.22 Visual exhaust system inspec-
site with fast meter response at 50 feet tion.
from the centerline of lane of travel on
highways with speed limits of more No motor carrier subject to these
than 35 MPH. regulations shall operate any motor ve-
(b) No motor carrier subject to these hicle of a type to which this regulation
regulations shall operate any motor ve- is applicable unless the exhaust system
hicle of a type to which this regulation of such vehicle is (a) free from defects
is applicable which at any time or which affect sound reduction; (b)
under any condition of highway grade, equipped with a muffler or other noise
load, acceleration or deceleration gen- dissipative device; and (c) not equipped
erates a sound level in excess of 83 with any cut-out, bypass, or similar de-
dB(A) measured on an open site with vice.
fast meter response at 50 feet from the
§ 202.23 Visual tire inspection.
centerline of lane of travel on high-
ways with speed limits of 35 MPH or No motor carrier subject to these
less; or 87 dB(A) measured on an open regulations shall at any time operate
site with fast meter response at 50 feet any motor vehicle of a type to which
from the centerline of lane of travel on this regulation is applicable on a tire
highways with speed limits of more or tires having a tread pattern which
than 35 MPH. as originally manufactured, or as
newly retreaded, is composed primarily
[39 FR 38215, Oct. 29, 1974, as amended at 51
or cavities in the tread (excluding sipes
FR 852, Jan. 8, 1986]
and local chunking) which are not
§ 202.21 Standard for operation under vented by grooves to the tire shoulder
stationary test. or circumferentially to each other
(a) No motor carrier subject to these around the tire. This § 202.23 shall not
regulations shall operate any motor ve- apply to any motor vehicle which is
hicle of a type to which this regulation demonstrated by the motor carrier
is applicable which generates a sound which operates it to be in compliance
level in excess of 88 dB(A) measured on with the noise emission standard speci-
an open site with fast meter response fied for operations on highways with
at 50 feet from the longitudinal center- speed limits of more than 35 MPH in
line of the vehicle, when its engine is § 202.20 of this Subpart B, if the dem-
accelerated from idle with wide open onstration is conducted at the highway
throttle to governed speed with the ve- speed limit in effect at the inspection
hicle stationary, transmission in neu- location, or, if speed is unlimited, the
tral, and clutch engaged. This section demonstration is conducted at a speed
shall not apply to any vehicle which is of 65 MPH.
not equipped with an engine speed gov- [39 FR 38215, Oct. 29, 1974]
ernor.
(b) No motor carrier subject to these PART 203—LOW-NOISE-EMISSION
regulations shall operate any motor ve-
hicle of a type to which this regulation
PRODUCTS
is applicable which generates a sound
Sec.
level in excess of 85 dB(A) measured on 203.1 Definitions.
an open site with fast meter response 203.2 Application for certification.
at 50 feet from the longitudinal center- 203.3 Test procedures.
line of the vehicle when its engine is 203.4 Low-noise-emission product deter-
accelerated from idle with wide open mination.
throttle to governed speed with the ve- 203.5 Suitable substitute decision.
86
203.6 Contracts for low-noise-emission prod- § 203.2 Application for certification.
ucts.
203.7 Post-certification testing. (a) Any person desiring certification
203.8 Recertification. of a class or model of product under
section 15 of the act shall submit to the
AUTHORITY: Sec. 15, Noise Control Act,
Administrator an application for cer-
1972, Pub. L. 92–574, 86 Stat. 1234.
tification. The application shall be
SOURCE: 39 FR 6670, Feb. 21, 1974, unless completed upon such forms as the Ad-
otherwise noted. ministrator may deem appropriate and
shall contain:
(1) A description of the product, in-
(a) As used in this part, any term not cluding its power source, if any;
defined herein shall have the meaning (2) Information pertaining to the test
given it in the Noise Control Act of facility for the product establishing
1972 (Pub. L. 92–574). that the test facility meets all require-
(1) Act means the Noise Control Act ments which EPA may prescribe;
of 1972 (Pub. L. 92–574). (3) All noise emission data from the
(2) Federal Government includes the test of the product;
legislative, executive, and judicial (4) Data required by the Adminis-
branches of the Government of the trator relative, but not limited to, the
United States, and the government of following characteristics;
the District of Columbia. (i) Safety;
(3) Administrator means the Adminis- (ii) Performance Characteristics;
trator of the Environmental Protection (iii) Reliability of product and reli-
Agency. ability of low-noise-emission features;
(4) Product means any manufactured (iv) Maintenance;
article or goods or component thereof;
(v) Operating Costs;
except that such term does not in-
(vi) Conformance with Federal Agen-
clude—
cy Purchase Specifications; and
(i) Any aircraft, aircraft engine, pro-
(5) Such other information as the Ad-
pellor or appliance, as such terms are
ministrator may request.
defined in section 101 of the Federal
Aviation Act of 1958; or (b) Specific data requirements rel-
ative to paragraph (a)(4) of this section
(ii)(a) Any military weapons or
will be published separately from the
equipment which are designed for com-
bat use; (b) any rockets or equipment low-noise-emission criterion for that
which are designed for research, experi- product or class of products.
mental or developmental work to be (c) The Administrator will, imme-
performed by the National Aeronautics diately upon receipt of the application
and Space Administration; or (c) to the for certification, publish in the FED-
extent provided by regulations of the ERAL REGISTER a notice of the receipt
Administrator, any other machinery or of the application. The notice will re-
equipment designed for use in experi- quest written comments and docu-
mental work done by or for the Federal ments from interested parties in sup-
Government. port of, or in opposition to, certifi-
(5) Low-Noise-Emission Product Deter- cation of the class or model of product
mination means the Administrator’s de- under consideration.
termination whether or not a product,
§ 203.3 Test procedures.
for which a properly filed application
has been received, meets the low-noise- (a) The applicant shall test or cause
emission product criterion. his product to be tested in accordance
(6) Suitable Substitute Decision means with procedures contained in the regu-
the Administrator’s decision whether a lations issued pursuant to section 6 of
product which the Administrator has the act unless otherwise specified.
determined to be a low-noise-emission (b) The Administrator may conduct
product is a suitable substitute for a whatever investigation is necessary,

product or products presently being including actual inspection of the prod-
purchased by the Federal Government. uct at a place designated by him.
87
§ 203.4 40 CFR Ch. I (7–1–21 Edition)
§ 203.4 Low-noise-emission product de- priate, an actual inspection or test of

termination. the product at such places and times as
(a) The Administrator will, within the Administrator may designate.
ninety (90) days after receipt of a prop- (b) In order to compare the data for
erly filed application for certification, any class or model of product with any
determine whether such product is a class or model of product presently
low-noise-emission product. In doing being purchased by the Federal Gov-
so, he will determine if the product: ernment for which the applicant seeks
(1) Is one for which a noise source to have its product substituted, the Ad-
emission standard has been promul- ministrator will enter into appropriate
gated under section 6 of the act; agreements with other Government
(2) Emits levels of noise in amounts agencies to gather the necessary data
significantly below the levels specified regarding such class or model.
in noise emission standard under regu- (c) Immediately upon making the de-
lations under section 6 of the act appli- cision as to whether a product deter-
cable to that product or class of prod- mined to be a low-noise-emission prod-
ucts; and uct is a suitable substitute for any
(3) Is labeled in accordance with reg- product or class of products being pur-
ulations issued pursuant to section 8 of chased by the Federal Government for
the act. its use, the Administrator shall publish
(b) The Administrator will, upon in the FEDERAL REGISTER notice of
making the determination whether a such decision and the reasons therefor.
product is a low-noise-emission prod- (d) If the Administrator decides that
uct, publish in the FEDERAL REGISTER the product is a suitable substitute for
notice of his determination, and the products being purchased by the Fed-
reasons therefor. eral Government, he will issue a cer-
(c) The notice of determination that tificate that the product is a suitable
a product is a low-noise-emission prod- substitute for a product or class of
uct shall be revocable whenever a products presently being purchased by
change in the low-noise-emission prod- the Federal Government and will speci-
uct criterion for what product occurs fy with particularity the product or
between determination and decision. class of products for which the certified
Notice of any revocation will be pub- product is a suitable substitute.
lished in the FEDERAL REGISTER, to- (e) Any certification made under this
gether with a statement of the reasons section shall be effective for a period of
therefor. one year from date of issuance.
(d) The notice of determination that
a product is a low-noise-emission prod- § 203.6 Contracts for low-noise-emis-
uct shall expire upon publication in the sion products.
FEDERAL REGISTER of the Administra- (a) Data relied upon by the Adminis-
tor’s notice of a decision that a product trator in determining that a product is
will not be certified. a certified low-noise-emission product
will be incorporated by reference in
§ 203.5 Suitable substitute decision. any contract for the procurement of
(a) If the Administrator determines such product.
that a product is a low-noise-emission (b) A determination of price to the
product, then within one hundred and Government of any certified low-noise-
eighty (180) days of such determina- emission product will be made by the
tion, in consultation with the appro- Administrator of General Services in
priate Federal agencies, the Adminis- coordination with the appropriate Fed-
trator will decide whether such product eral agencies in accordance with such
is a suitable substitute for any class or procedures as he may prescribe and
model or product being purchased by with subsection c(1) of section 15 of the
the Federal Government for use by its Act.
agencies. Such decision will be based
upon the data obtained under § 203.2, § 203.7 Post-certification testing.
the Administrator’s evaluation of the The Administrator will, from time to

data, comments of interested parties, time, as he deems appropriate, test the
and, as the Administrator deems appro- emissions of noise from certified low-
88
noise-emission products purchased by 204.54 Test procedures.

the Federal Government. If at any time 204.55 Requirements.
he finds that the noise emission levels 204.55–1 General standards.
204.55–2 Requirements.
exceed the levels on which certification 204.55–3 Configuration identification.
was based, the Administrator shall give 204.55–4 Labeling.
the suppliers of such product written 204.56 Testing by the Administrator.
notice of this finding, publish such 204.57 Selective enforcement auditing.
findings in the FEDERAL REGISTER and 204.57–1 Test request.
give the supplier an opportunity to 204.57–2 Test compressor sample selection.
make necessary repairs, adjustments 204.57–3 Test compressor preparation.
204.57–4 Testing.
or replacements. If no repairs, adjust- 204.57–5 Reporting of test results.
ments or replacements are made within 204.57–6 Acceptance and rejection of
a period to be set by the Adminis- batches.
trator, he may order the supplier to 204.57–7 Acceptance and rejection of batch
show cause why the product involved sequence.
should be eligible for recertification. 204.57–8 Continued testing.
204.57–9 Prohibition of distribution in com-
§ 203.8 Recertification. merce; manufacturer’s remedy.
204.58 In-use requirements.
(a) A product for which a certificate 204.58–1 Warranty.
has been issued may be recertified for 204.58–2 Tampering.
the following year upon reapplication 204.58–3 Instructions for maintenance, use,
to the Administrator for this purpose and repair.
upon such forms as the Administrator 204.59 Recall of non-complying compressors.
may deem appropriate. APPENDIX I TO PART 204
(b) If the applicant supplies informa- AUTHORITY: (42 U.S.C. 4905), 86 Stat. 1237.
tion establishing that:
(1) The data previously submitted
otherwise noted.
continues to describe his product for
purpose of certification;
(2) The low-noise-emission product Subpart A—General Provisions
criterion and ‘‘suitable substitute’’ cri-
§ 204.1 General applicability.
teria are to be the same during the pe-
riod recertification is desired; and The provisions of this subpart are ap-
(3) No notice has been issued under plicable to all products for which regu-
§ 203.7, then recertification will be lations have been published under this
made within 30 days after receipt of an part and which are manufactured after
appropriate recertification application the effective date of such regulations.
by the Administrator.
PART 204—NOISE EMISSION (a) As used in this subpart, all terms
STANDARDS FOR CONSTRUCTION not defined herein shall have the mean-
ing given them in the Act.
EQUIPMENT (1) Act means the Noise Control Act
of 1972 (Pub. L. 92–574, 86 Stat. 1234).
(2) Administrator means the Adminis-
Sec. trator of the Environmental Protection
204.1 General applicability. Agency or his authorized representa-
204.2 Definitions. tive.
204.3 Number and gender. (3) Agency means the United States
204.4 Inspection and monitoring.
204.5 Exemptions.
Environmental Protection Agency.
204.5–1 Testing exemption. (4) Export exemption means an exemp-
204.5–2 National security exemptions. tion from the prohibitions of section 10
204.5–3 Export exemptions. (a) (1), (2), (3), and (4) of the Act, grant-
ed by statute under section 10(b)(2) of
Subpart B—Portable Air Compressors the Act for the purpose of exporting
204.50 Applicability. regulated products.
204.51 Definitions. (5) National security exemption means

204.52 Portable air compressor noise emis- an exemption from the prohibitions of
sion standard. section 10(a) (1), (2), (3), and (5) of the
89
§ 204.3 40 CFR Ch. I (7–1–21 Edition)
Act, which may be granted under sec- modifier, the level is understood to be
tion 10(b)(1) of the Act for the purpose that of a root-mean-square pressure.
of national security. (17) Product means any construction
(6) [Reserved] equipment for which regulations have
(7) Testing exemption means an exemp- been promulgated under this part and
tion from the prohibitions of section includes ‘‘test product.’’
10(a) (1), (2), (3), and (5) of the Act, (18) Test product means any product
which may be granted under section that is required to be tested pursuant
10(b)(1) of the Act for the purpose of re- to this part.
search, investigations, studies, dem-
[41 FR 2172, Jan. 14, 1976, as amended at 47
onstrations, or training, but not in-
FR 57711, Dec. 28, 1982]
cluding national security where lease
or sale of the exempted product is in- § 204.3 Number and gender.
volved.
(8) Warranty means the warranty re- As used in this part, words in the sin-
quired by section 6(c)(1) of the Act. gular shall be deemed to import the
(9) Tampering means those acts pro- plural, and words in the masculine gen-
hibited by section 10(a)(2) of the Act. der shall be deemed to import the femi-
(10) Maintenance instructions means nine and vice versa, as the case may re-
those instructions for maintenance, quire.
use, and repair, which the Adminis- § 204.4 Inspection and monitoring.
trator is authorized to require pursu-
ant to section 6(c)(1) of the Act. (a) Any inspection or monitoring ac-
(11) Type I Sound Level Meter means a tivities conducted under this section
sound level meter which meets the shall be for the purpose of determining
Type I requirements of American Na- (1) whether test products are being se-
tional Standard Specification S1.4–1971 lected and prepared for testing in ac-
for sound level meters. This publica- cordance with the provisions of these
tion is available from the American regulations, (2) whether test product
National Standards Institute, Inc., 1430 testing is being conducted in accord-
Broadway, New York, New York 10018. ance with these regulations, and (3)
(12) dBA is the standard abbreviation whether products being produced for
for A-weighted sound level in decibels. distribution into commerce comply
(13) Reasonable assistance means pro- with these regulations.
viding timely and unobstructed access (b) The Director, Noise Enforcement
to test products or products and Division, may request that a manufac-
records required by this part and op- turer subject to this part admit an
portunity for copying such records or EPA Enforcement Officer during oper-
testing such test products. ating hours to any of the following:
(14) Slow meter response means the (1) Any facility or site where any
meter ballistics of meter dynamic product to be distributed into com-
characteristics as specified by Amer- merce is manufactured, assembled, or
ican National Standard S1.4–1971 or stored;
subsequent approved revisions. (2) Any facility or site where any
(15) Sound level means the weighted tests conducted pursuant to this part
sound pressure level measured by the or any procedures or activities con-
use of a metering characteristic and nected with such tests are or were per-
weighing A, B, or C as specified in formed; and
American National Standard Specifica- (3) Any facility or site where any test
tion for Sound Level Meters S1.4–1971 product is present.
or subsequent approved revision. The (c)(1) An EPA Enforcement Officer,
weighting employed must be specified, once admitted to a facility or site, will
otherwise A-weighting is understood. not be authorized to do more than:
(16) Sound pressure level means, in (i) To inspect and monitor test prod-
decibels, 20 times the logarithm to the uct manufacture and assembly, selec-
base ten of the ratio of a sound pres- tion, storage, preconditioning, noise
sure to the reference sound pressure of emission testing, and maintenance, and
20 micropascals (20 micronewtons per to verify correlation or calibration of
square meter). In the absence of any test equipment;
90
Environmental Protection Agency § 204.5–2
(ii) To inspect products prior to their (2) The Administrator or his designee
distribution in commerce; may proceed ex parte to obtain a war-
(iii) [Reserved] rant whether or not the manufacturer
(iv) To inspect and photograph any has refused entry.
part or aspect of any such product and (42 U.S.C. 4905, 4912, 86 Stat. 1237–1239, 1244)
any component used in the assembly
thereof that are reasonably related to [41 FR 2172, Jan. 14, 1976, as amended at 43
the purpose of his entry; FR 27989, June 28, 1978; 47 FR 57711, Dec. 28,
1982]
(v) To obtain from those in charge of
the facility or site such reasonable as- § 204.5 Exemptions.
sistance as he may request to enable
him to carry out any proper function § 204.5–1 Testing exemption.
listed in this section.
(2) [Reserved] (a) A new product intended to be used
solely for research, investigations,
(3) The provisions of this section
apply whether the facility or site is studies, demonstrations or training,
owned or controlled by the manufac- and so labeled or marked on the out-
turer or by one who acts for the manu- side of the container and on the prod-
facturer. uct itself, shall be exempt from the
(d) For purposes of this section: prohibitions of sections 10(a) (1), (2),
(3), and (5) of the Act.
(1) An ‘‘EPA Enforcement Officer’’ is
an employee of the EPA Office of En- (b) No request for a testing exemp-
forcement who displays upon arrival at tion is required.
a facility or site the credentials identi- (c) For purposes of section 11(d) of
fying him as such an employee and a the Act any testing exemption shall be
letter signed by the Director, Noise En- void ab initio with respect to each new
forcement Division designating him to product, originally intended for re-
make the inspection. search, investigations, studies, dem-
(2) Where test product storage areas onstrations, or training, but distrib-
or facilities are concerned, ‘‘operating uted in commerce for other uses.
hours’’ shall mean all times during [47 FR 57711, Dec. 28, 1982]
which personnel other than custodial
personnel are at work in the vicinity of § 204.5–2 National security exemptions.
the area or facility and have access to
it. (a) A new product which is produced
to conform with specifications devel-
(3) Where facilities or areas other
oped by a national security agency,
than those covered by paragraph (d)(2)
and so labeled or marked on the out-
of this section are concerned, ‘‘oper-
ating hours’’ shall mean all times dur- side of the container and on the prod-
ing which product manufacture or as- uct itself, shall be exempt from the
sembly is in operation or all times dur- prohibitions of sections 10(a) (1), (2),
ing which product testing or mainte- (3), and (4) of the Act.
nance, production, or compilation of (b) No request for a national security
records is taking place, or any other exemption is required.
procedure or activity related to selec- (c) For purposes of section 11(d) of
tive enforcement audit testing or to the Act, any national security exemp-
product manufacture or assembly is tion shall be void ab initio with respect
being carried out. to each new product, originally in-
(e) The manufacturer shall admit to tended to be produced to conform with
a facility or site an EPA Enforcement specifications developed by a national
Officer who presents a warrant author- security agency but distributed in com-
izing entry. In the absence of such war- merce for other uses.
rant, entry to any facility or site under (d) Any manufacturer or person sub-
this section will be only upon the con- ject to the liabilities of section 11(a)
sent of the manufacturer. with respect to any product originally
(1) It is not a violation of this regula- intended for a national security agen-
tion or the Act for any person to refuse cy, but distributed in commerce for use
entry without a warrant. in any State, may be excluded from the
91
§ 204.5–3 40 CFR Ch. I (7–1–21 Edition)
application of section 11(a) with re- merce of a product manufactured for

spect to such product based upon a export only.
showing that such manufacturer:
(1) Had no knowledge of such product FR 61454, Dec. 5, 1977. Redesignated at 47 FR
being distributed in commerce for use 57711, Dec. 28, 1982]
in any state; and
(2) Made reasonable efforts to ensure Subpart B—Portable Air
that such products would not be dis- Compressors
tributed in commerce for use in any
State. Such reasonable efforts would § 204.50 Applicability.
include investigation, prior dealings,
The provisions of this subpart shall
contract provisions, etc.
apply to portable air compressors
[47 FR 57711, Dec. 28, 1982] which are manufactured after the ef-
fective dates specified in § 204.52, and
§ 204.5–3 Export exemptions. which are ‘‘New Products’’ as defined
(a) A new product intended solely for in the Act. These provisions apply only
export, and so labeled or marked on the to portable air compressors with a
outside of the container and on the rated capacity equal to or above 75
product itself, shall be exempt from cubic feet per minute which deliver air
the prohibitions of section 10(a), (1), (2), at pressures greater than 50 psig. The
(3), and (4) of the Act. provisions do not apply to the pneu-
matic tools or equipment that the
(b) No request for an export exemp-
portable air compressor is designed to
tion is required.
power.
(c) For purposes of section 11(d) of
the Noise Control Act, any export ex- § 204.51 Definitions.
emption under section 10(b)(2) shall be
void ab initio with respect to each new (a) Portable air compressor or com-
product intended solely for export pressor means any wheel, skid, truck,
which is distributed in commerce for or railroad car mounted, but not self-
use in any state. propelled, equipment designed to acti-
vate pneumatic tools. This consists of
(d) The Administrator will not insti-
an air compressor (air end), and a re-
tute proceedings against any manufac-
ciprocating rotary or turbine engine
turer pursuant to section 11(d)(1) of the
rigidly connected in permanent align-
Noise Control Act with respect to any ment and mounted on a common
product, originally intended for export, frame. Also included are all cooling, lu-
but distributed in commerce for use in bricating, regulating, starting, and fuel
any state, if it is demonstrated to the systems, and all equipment necessary
Administrator’s satisfaction that: to constitute a complete, self-con-
(1) The manufacturer had no knowl- tained unit with a rated capacity of 75
edge that such product would be dis- cfm or greater which delivers air at
tributed in commerce for use in any pressures greater than 50 psig, but does
state; and not include any pneumatic tools them-
(2) The manufacturer made reason- selves.
able efforts to ensure that such product (b) Maximum Rated Capacity means
would not be distributed in commerce that the portable air compressor, oper-
for use in any state. Such reasonable ating at the design full speed with the
efforts would include consideration of compressor on load, delivers its rated
prior dealings with any person which cfm output and pressure, as defined by
resulted in introduction into commerce the manufacturer.
of a product manufactured for export (c) Model year means the manufactur-
only, investigation of prior instances er’s annual production period which in-
known to the manufacturer of intro- cludes January 1 of such calendar year;
duction into commerce of a product Provided, that if the manufacturer has
manufactured for export only, and con- no annual production period, the term
tract provisions which minimize the ‘‘model year’’ shall mean the calendar
probability of introduction into com- year.
92
(d) Compressor configuration means (q) Rejection of a batch means that the
the basic classification unit of a manu- number of non-complying compressors
facturer’s product line and is com- in the batch sample is greater than or
prised of compressor lines, models or equal to the rejection number as deter-
series which are identical in all mate- mined by the appropriate sampling
rial respects with regard to the param- plan.
eters listed in § 204.55–3. (r) Acceptance of a batch sequence
(e) Category means a group of com- means that the number of rejected
pressor configurations which are iden- batches in the sequence is less than or
tical in all aspects with respect to the equal to the sequence acceptable num-
parameters listed in paragraph (c)(1)(i) ber as determined by the appropriate
of § 204.55–2. sampling plan.
(f) [Reserved] (s) Rejection of a batch sequence means
(g) Noise emission test means a test that the number of rejected batches in
conducted pursuant to the measure- a sequence is greater than or equal to
ment methodology specified in § 204.54. the sequence rejection number as de-
(h) Inspection Criteria means the re- termined by the appropriate sampling
jection and acceptance numbers associ- plan.
ated with a particular sampling plan. (t) Shift means the regular produc-
(i) Acceptable Quality Level (AQL) tion work period for one group of work-
means the maximum percentage of ers.
failing compressors that, for purposes (u) Failing compressor means that the
of sampling inspection can be consid- measured noise emissions of the com-
ered satisfactory as a process average. pressor, when measured in accordance
(j) Batch means the collection of with the applicable procedure, exceeds
compressors of the same category or the applicable standard.
configuration, as designated by the Ad- (v) Acceptance of a compressor means
ministrator in a test request, from that the measured noise emissions of
which a batch sample is to be randomly the compressor, when measured in ac-
drawn and inspected to determine con- cordance with the applicable proce-
formance with the acceptability cri- dure, conforms to the applicable stand-
teria. ard.
(k) Batch sample means the collection (w) Test Compressor means a com-
of compressors that are drawn from a pressor used to demonstrate compli-
batch. ance with the applicable noise emis-
(l) Batch sample size means the num- sions standard.
ber of compressors of the same cat- (x) Tampering means those acts pro-
egory or configuration which is ran- hibited by section 10(a)(2) of the Act.
domly drawn from the batch sample
and which will receive emissions tests. (Secs. 6 and 13, Noise Control Act, Pub. L. 92–
(m) Test sample means the collection 574, 86 Stat. 1244; (42 U.S.C. 4912))
of compressors from the same category [41 FR 2172, Jan. 14, 1976, as amended at 42
or configuration which is randomly FR 41635, Aug. 18, 1977; 47 FR 57711, Dec. 28,
drawn from the batch sample and 1982]
which will receive emissions tests.
(n) Batch size means the number, as § 204.52 Portable air compressor noise
designated by the Administrator in the emission standard.
test request, of compressors of the (a) Effective January 1, 1978, portable
same category or configuration in a air compressors with maximum rated
batch. capacity of less than or equal to 250
(o) Test sample size means the number cubic feet per minute (cfm) shall not
of compressors of the same configura- produce an average sound level in ex-
tion in a test sample. cess of 76 dBA when measured and eval-
(p) Acceptable of a batch means that uated according to the methodology
the number of non-complying compres- provided by this regulation. Effective
sors in the batch sample is less than or July 1, 1978, portable air compressors
equal to the acceptance number as de- with maximum rated capacity greater
termined by the appropriate sampling than 250 cfm shall not produce an aver-
plan. age sound level in excess of 76 dBA
93
§ 204.54 40 CFR Ch. I (7–1–21 Edition)
when measured and evaluated accord- shall be performed at least annually

ing to the methodology provided by using the methodology of sufficient
this regulation. precision and accuracy to determine
(b) In-Use Standard. [Reserved] compliance with ANS S1.4–1971 and IEC
(c) Low Noise Emission Product. [Re- 179. This calibration shall consist, at a
served] minimum, of an overall frequency re-
sponse calibration and an attenuator
§ 204.54 Test procedures. (gain control) calibration plus a meas-
(a) General. This section prescribes urement of dynamic range and instru-
the conditions under which noise emis- ment noise floor.
sion standard compliance Selective En- (4) An anemometer or other device
forcement Auditing or Testing by the accurate to within ±10 percent shall be
Administrator must be conducted and used to measure wind velocity.
the measurement procedures that must (5) An indicator accurate to within ±2
be used to measure the sound level and percent shall be used to measure port-
to calculate the average sound level of able air compressor engine speed.
portable air compressors on which the (6) A gauge accurate to within ±5 per-
test is conducted. cent shall be used to measure portable
(b) Test site description. The location compressor air pressure.
for measuring noise employed during (7) A metering device accurate to
noise compliance testing must consist within ±10 percent shall be used to
of an open site above a hard reflecting measure the portable air compressor
plane. The reflecting plane must con- compressed air volumetric flow rate.
sist of a surface of sealed concrete or (8) A barometer for measuring atmos-
sealed asphalt and must extend one (1) pheric pressure accurate to within ±5
meter beyond each microphone loca- percent.
tion. No reflecting surface, such as a (9) A thermometer for measuring
building, signboard, hillside, etc., shall temperature accurate to within ±1 de-
be located within 10 meters of a micro- gree.
phone location. (d) Portable air compressor operation.
(c) Measurement equipment. The meas- The portable air compressor must be
urement equipment must be used dur- operated at the design full speed with
ing noise standard compliance testing the compressor on load, delivering its
and must consist of the following or its rated flow and output pressure, during
equivalent: noise emission standard compliance
(1) A sound level meter and micro- testing. The air discharge shall be pro-
phone system that conform to the Type vided with a resistive loading such that
I requirements of American National no significant pressure drop or throt-
Standard (ANS) S1.4–1971, ‘‘Specifica- tling occurs across the compressor dis-
tion for Sound Level Meters,’’ and to charge valve. The air discharge shall be
the requirements of the International piped clear of the test area or fed into
Electrotechnical Commission (IEC) an effective silencer. The sound pres-
Publication No. 179, ‘‘Precision Sound sure level due to the air discharge shall
Level Meters.’’ be at least 10 dB below the sound pres-
(2) A windscreen must be employed sure level generated by the portable air
with the microphone during all meas- compressor.
urements of portable air compressor (e) Test conditions. Noise standard
noise when the wind speed exceeds 11 compliance testing must be carried out
km/hr. The windscreen shall not affect under the following conditions:
the A-weighted sound levels from the (1) No rain or other precipitation,
portable air compressor in excess of (2) No wind above 19 km/hr,
±0.5 dB. (3) No observer located within 1
(3) The entire acoustical instrumen- meter, in any direction, of any micro-
tation system including the microphone location, nor between the test
phone and cable shall be calibrated be- unit and any microphone,
fore each test series and confirmed (4) Portable air compressor sound
afterward. A sound level calibrator ac- levels, at each microphone location, 10

curate to within ±0.5 dB shall be used. dB or greater than the background
A calibration of the instrumentation sound level,
94
(5) The machine shall have been L5 = The A-weighted sound level (in decibels)
warmed up and shall be operating in a at microphone position 5
stable condition as for continuous serv- (i) The Administrator may approve
ice and at its maximum rated capacity. applications from manufacturers of
All cooling air vents in the engine/com- portable air compressors for the ap-
pressor enclosure, normally open dur- proval of test procedures which differ
ing operation, shall be fully open dur- from those contained in this part so
ing all sound level measurements. long as the alternate procedures have
Service doors that should be closed been demonstrated to correlate with
during normal operation (at any and the prescribed procedure. To be accept-
all ambient temperatures) shall be able, alternate testing procedures shall
closed during all sound level measure- be such that the test results obtained
ments. will identify all those test units which
(f) Microphone locations. Five micro- would not comply with the noise emis-
phone locations must be employed to sion limit prescribed in § 204.52 when
acquire portable air compressor sound tested in accordance with the proce-
levels to test for noise standard com- dures contained in § 204.54 (a) through
pliance. A microphone must be located (h). Tests conducted by manufacturers
7 ±.1 meters from the right, left, front, under approved alternate procedures
and back sides and top of the test unit. may be accepted by the Administrator
The microphone position to the right, for all purposes.
left, front, and back sides of the test (j) Presentation of information. All in-
unit must be located 1.5 ±.1 meters formation required by this section may
above the reflecting plane. be recorded using the format rec-
(g) Data required. The following data ommended on the Noise Data Sheet
must be acquired during noise emission shown in Appendix I, Table IV.
standard compliance testing:
(1) A-weighted sound level at one [41 FR 2172, Jan. 14, 1976, as amended at 41
microphone location prior to operation FR 8347, Feb. 26, 1976; 47 FR 57711, Dec. 28,
1982]
of the test unit and at all microphone
locations during test unit operations, § 204.55 Requirements.
as defined in paragraph (d) of this sec-
tion. § 204.55–1 General standards.
(2) Portable air compressor engine
(a) Every new compressor manufac-
speed.
tured for distribution in commerce in
(3) Portable air compressor com-
the United States which is subject to
pressed gas pressure.
the standards prescribed in this sub-
(4) Portable air compressor flow rate.
part and not exempted in accordance
(5) All other data contained in Ap-
with § 204.5:
pendix I, Table IV.
(1) Shall be labeled in accordance
(h) Calculation of average sound level.
with the requirements of § 204.55–4.
The average A-weighted sound level
(2) Shall conform to the applicable
from measurements at the specified
noise emission standard established in
microphone locations must be cal-
§ 204.52
culated by the following method:
(b) [Reserved]
L = 10 log (1/5[Antilog L1/10 + Antilog
L2/10 + Antilog L3/10 + Antilog L4/10 FR 57711, Dec. 28, 1982]
+ Antilog L5/10])
Where: § 204.55–2 Requirements.
L = The average A-weighted sound level (in (a)(1) Prior to distribution in com-
decibels) merce, compressors of a specific con-
L1 = The A-weighted sound level (in decibels) figuration must verify such configura-
at microphone position 1 tions in accordance with this subpart.
L2 = The A-weighted sound level (in decibels)
(2) [Reserved]
at microphone position 2
L3 = The A-weighted sound level (in decibels) (3) At any time with respect to a con-
at microphone position 3 figuration under this subpart, the Ad-

L4 = The A-weighted sound level (in decibels) ministrator may require that the man-
at microphone position 4 ufacturer ship test compressors to an
95
§ 204.55–3 40 CFR Ch. I (7–1–21 Edition)
EPA test facility in order for the Ad- (3) Where the manufacturer tests a
ministrator to perform the tests re- compressor configuration which has
quired for production verification. not been determined as having the
(b) The requirements for purposes of highest sound level of a category, but
testing by the Administrator and Se- all other requirements of paragraph
lective Enforcement Auditing consist (c)(1) of this section are complied with,
of: all those configurations contained
(1) Testing in accordance with § 204.54 within that category which are deter-
of a compressor selected in accordance mined to have sound levels no greater
with § 204.57–2; and than the tested compressor are consid-
(2) Compliance of the test compressor ered to be represented by the tested
with the applicable standards when compressor: However, a manufacturer
tested in accordance with § 204.54. must for purposes of Testing by the Ad-
(c)(1) In lieu of testing compressors of ministrator and Selective Enforcement
every configuration, as described in Auditing verify according to the re-
paragraph (b) of this section, the man- quirements of paragraph (b)(1) and/or
ufacturer may elect to verify the con- (c)(1) of this section any configurations
figuration based on representative test- in the subject category which have a
ing, the requirements of which consist higher sound level than the compressor
of: configuration tested.
(i) Grouping configurations into a (d) A manufacturer may elect for
category where each category will be purposes of Testing by the Adminis-
determined by a separate combination trator and Selective Enforcement Au-
of at least the following parameters (a diting to use representative testing,
manufacturer may use more param- pursuant to paragraph (c) of this sec-
eters): tion, all or part of his product line.
(A) Engine type. (e) The manufacturer may, at his op-
tion, proceed with any of the following
(1) Gasoline—two stroke cycle
alternatives with respect to any com-
(2) Gasoline—four stroke cycle
pressor determined not in compliance
(3) Diesel—two stroke cycle with applicable standards:
(4) Diesel—four stroke cycle (1) In the case of representative test-
(5) Rotary—Wankel ing, a new test compressor from an-
(6) Turbine other configuration must be selected
(7) Other according to the requirements of para-
(B) Engine manufacturer graph (c) of this section in order to
(C) Compressor delivery rate (at verify the configurations represented
rated pressure) by the non-compliant compressor.
(ii) Identifying the configuration (2) Modify the test compressor and
within each category which emits the demonstrate by testing that it meets
highest sound level in dBA based on applicable standards. The manufac-
best technical judgment, emission test turer must modify all production com-
data, or both. pressors of the same configuration in
(iii) Testing in accordance with the same manner as the test com-
§ 204.54 selected in accordance with pressor before distribution into com-
§ 204.57–2 which must be a compressor merce.
of the configuration which is identified (Secs. 6 and 13, Noise Control Act, Pub. L. 92–
pursuant to paragraph (c)(1)(iii) of this 574, 86 Stat. 1244; (42 U.S.C. 4912); 42 U.S.C.
section as having the highest sound 4905; 86 Stat. 1237 and secs. 6, 10, 11, 13, Pub.
level (estimated or actual) within the L. 92–574, 86 Stat. 1234 (42 U.S.C. 4905, 4909,
category. 4910, 4912))
(iv) Compliance of the test com- [41 FR 2172, Jan. 14, 1976, as amended at 42
pressor with applicable standards when FR 61455, Dec. 5, 1977; 47 FR 57711, Dec. 28,
tested in accordance with § 204.54. 1982; 49 FR 26738, June 29, 1984]
(2) Where the requirements of para-
graph (c)(1) of this section are complied § 204.55–3 Configuration identification.
with, all those configurations con- (a) A separate compressor configura-

tained within a category are considered tion shall be determined by each com-
represented by the tested compressor. bination of the following parameters:
96
(1) The compressor type (screw, slid- that contrasts with the background of
ing vane, etc.). the label:
(2) Number of compressor stages. (i) The label heading: Compressor
(3) Maximum pressure (psi). Noise Emission Control Information;
(4) Air intake system of compressor: (ii) Full corporate name and trade-
(i) Number of filters; mark of manufacturer;
(ii) Type of filters. (iii) Date of manufacture, which may
(5) The engine system: consist of a serial number or code in
(i) Number of cylinders and configu- those instances where records are spec-
ration (L–6, V–8, V–12); ified and maintained.
(ii) Displacement; (iv) The statement:
(iii) Horsepower; This Compressor Conforms to U.S. E.P.A.
(iv) Full load rpm. Regulations for Noise Emissions Applicable
(6) Type cooling system, e.g., air to Portable Air Compressors. The following
cooled, water cooled. acts or the causing thereof by any person are
(7) Fan: prohibited by the Noise Control Act of 1972:
(i) Diameter; (A) The removal or rendering inoperative,
(ii) Maximum fan rpm. other than for the purpose of maintenance,
repair, or replacement, of any noise control
(8) The compressor enclosure: device or element of design (listed in the
(i) Height, length, and width; owner’s manual) incorporated into this com-
(ii) Acoustic material manufacturer, pressor in compliance with the Noise Control
type, part number. Act;
(9) The induction system (engine): (B) The use of this compressor after such
(i) Natural; device or element of design has been re-
(ii) Turbocharged. moved or rendered inoperative.
(10) The muffler: (b) Compressors manufactured solely
(i) Manufacturer; for use outside the United States shall
(ii) Manufacturer part number; be clearly labeled ‘‘For Export Only.’’
(iii) Quantity of mufflers used;
(Secs. 6, 13, Pub. L. 92–574, (42 U.S.C. 4912); 42
(11) Category parameters listed at U.S.C. 4905; 86 Stat. 1237 and secs. 6, 10, 11, 13,
§ 204.55–2. Pub. L. 92–574, 86 Stat. 1234 (42 U.S.C. 4905,
4909, 4910, 4912))
§ 204.55–4 Labeling.
(a)(1) The manufacturer of any com- FR 61455, Dec. 5, 1977. Redesignated at 47 FR
pressor subject to the standards pre- 57712, Dec. 28, 1982, and amended at 49 FR
scribed in § 204.52 shall, at the time of 26738, June 29, 1984]
manufacture, affix a permanent, leg-
ible label, of the type and in the man- § 204.56 Testing by the Administrator.
ner described below, containing the in- (a)(1) The Administrator may require
formation hereinafter provided, to all that any compressor tested or sched-
such compressors to be distributed in uled to be tested pursuant to these reg-
commerce. ulations or any other untested com-
(2) The label shall be permanently at- pressors be submitted to him, at such
tached, in a readily visible position, on place and time as he may designate, for
the compressor enclosure. the purpose of conducting tests in ac-
(3) The label shall be affixed by the cordance with the test procedures de-
compressor manufacturer, who has scribed in § 204.54 to determine whether
verified such compressor, in such a such compressors conform to applica-
manner that it cannot be removed ble regulations.
without destroying or defacing the (2) The Administrator may specify
label, and shall not be affixed to any that he will conduct such testing at
equipment that is easily detached from the manufacturer’s facility, in which
such compressor. case instrumentation and equipment of
(4) Labels for compressors not manu- the type required by these regulations
factured solely for use outside the shall be made available by the manu-
United States shall contain the fol- facturer for test operations. The Ad-
lowing information lettered in the ministrator may conduct such tests

English language in block letters and with his own equipment, which shall be
numerals, which shall be of a color equal to or exceed the performance
97
§ 204.57 40 CFR Ch. I (7–1–21 Edition)
specifications of the instrumentation (c) The test request will specify the
or equipment specified by the Adminis- compressor category or configuration
trator in these regulations. selected for testing, the batch from
(b)(1) If, based on tests conducted by which sampling is to begin, for testing
the Administrator or other relevant in- and the batch size, the manufacturer’s
formation, the Administrator deter- plant or storage facility from which
mines that the test facility does not the compressors must be selected, and
meet the requirements of § 204.54–1 (a) the time at which compressors must be
and (b) he will notify the manufacturer selected. The test request will also pro-
in writing of his determination and the vide for situations in which the se-
reasons therefor. lected configuration or category is un-
(2) The manufacturer may at any available for testing. The test request
time within 15 days after receipt of a may include an alternative category or
notice issued under paragraph (b)(1) of configuration selected for testing in
this section request a hearing con- the event that compressors of the first
ducted in accordance with 5 U.S.C. 554 specified category or configuration are
on the issue of whether his test facility not available for testing because the
was in conformance. Such notice will compressors are not being manufac-
not take effect until 15 days after re- tured at the specified plant and/or are
ceipt by the manufacturer, or if a hear- not being manufactured during the
ing is requested under this paragraph, specified time or not being stored at
until adjudication by the hearing ex- the specified plant or storage facility.
aminer. (d) Any manufacturer shall, upon re-
(3) After any notification issued ceipt of the test request, select and
under paragraph (b)(1) of this section test a batch sample of compressors
has taken effect, no data thereafter de- from two consecutively produced
rived from such test facility will be ac- batches of the compressor category or
ceptable for purposes of this part. configurations specified in the test re-
(4) The manufacturer may request in quest in accordance with these regula-
writing that the Administrator recon- tions and the conditions specified in
sider this determination under para- the test request.
graph (b)(1) of this section based on (e)(1) Any testing conducted by the
data or information which indicates manufacturer pursuant to a test re-
that changes have been made to the quest shall be initiated within such pe-
test facility and such changes have re- riod as is specified in the test request;
solved the reasons for disqualification. Except, that such initiation may be de-
(5) The Administrator will notify the layed for increments of 24 hours or one
manufacturer of his determination and business day where ambient test site
an explanation of the reasons under- weather conditions in any 24-hour pe-
lying it with regard to the requalifica- riod do not permit testing: Provided,
tion of the test facility within 10 work- That ambient test site weather condi-
ing days after receipt of the manufac- tions for that period are recorded.
turer’s request for reconsideration pur-
(2) The manufacturer shall complete
suant to paragraph (b)(4) of this sec-
noise emission testing on a minimum
tion.
of five compressors per day, unless oth-
(Secs. 6, 13, Pub. L. 92–574 (42 U.S.C. 4912)) erwise provided for by the Adminis-
[41 FR 2172, Jan. 14, 1976, as amended at 42 trator or unless ambient test site con-
FR 61455, Dec. 5, 1977] ditions only permit the testing of a
lesser number: Provided, That ambient
§ 204.57 Selective enforcement audit- test site weather conditions for that
ing. period are recorded.
(3) The manufacturer will be allowed
§ 204.57–1 Test request. 24 hours to ship compressors from a
(a) The Administrator will request batch sample from the assembly plant
all testing under this subpart by means to the testing facility if the facility is
of a test request addressed to the man- not located at the plant or in close
ufacturer. proximity to the plant; Except, that
(b) [Reserved] the Administrator may approve more
98
time based upon a request by the man- sequentially numbering all of the com-
ufacturer accompanied by a satisfac- pressors in the batch and then using a
tory justification. table of random numbers to select the
(f) The Administrator may issue an number of compressors, as specified in
order to the manufacturer to cease to paragraph (c) of this section, based on
distribute into commerce compressors the batch size designated by the Ad-
of a specified category or configuration ministrator in the test request. An al-
being manufactured at a particular fa- ternative selection plan may be used
cility if:
by a manufacturer: Provided, That such
(1) The manufacturer refuses to com-
a plan is approved by the Adminis-
ply with the provisions of a test re-
quest issued by the Administrator pur- trator.
suant to this section; or (b) The Acceptable Quality Level is
(2) The manufacturer refuses to com- 10 percent. The appropriate sampling
ply with any of the requirements of plans associated with the designated
this section. AQL are contained in Appendix I, Table
(g) A cease-to-distribute order shall II.
not be issued under paragraph (f) of (c) The appropriate batch sample size
this section if such refusal is caused by will be determined by reference to Ap-
conditions and circumstances outside pendix I, Tables I and II. A code letter
the control of the manufacturer which is obtained from Table I based on the
render it impossible to comply with the batch size designated by the Adminis-
provisions of a test request or any trator in a test request. The batch
other requirements of this section. sample size will be equal to the max-
Such conditions and circumstances imum cumulative sample size as listed
shall include, but are not limited to,
in Table II for the appropriate code let-
any uncontrollable factors which result
ter obtained from Table I plus an addi-
in the temporary unavailability of
equipment and personnel needed to tional ten percent rounded off to the
conduct the required tests, such as next highest number.
equipment breakdown or failure or ill- (d) Individual compressors com-
ness of personnel, but shall not include prising the test sample will be ran-
failure of the manufacturer to ade- domly selected from the batch sample
quately plan for and provide the equip- using the same random selection plan
ment and personnel needed to conduct as in paragraph (a) of this section. Test
the tests. The manufacturer will bear sample size will be determined by en-
the burden of establishing the presence tering Table II.
of the conditions and circumstances re- (e) The test compressor of the cat-
quired by this paragraph. egory or configuration selected for
(h) Any such order shall be issued testing shall have been assembled by
only after a notice and opportunity for the manufacturer for distribution in
a hearing in accordance with section commerce using the manufacturers
554 of Title 5 of the United States Code. normal production process.
(Secs. 6, 11 and 13, Noise Control Act, Pub. L. (f) Unless otherwise indicated in the
92–574, 86 Stat. 1244; (42 U.S.C. 4910 and 4912)) test request, the manufacturer will se-
[41 FR 2172, Jan. 14, 1976, as amended at 42 lect the batch sample from the produc-
FR 41635, Aug. 18, 1977; 42 FR 61455, Dec. 5, tion batch next scheduled after receipt
1977; 47 FR 57712, Dec. 28, 1982] of the test request of the category or
configuration specified in the test re-
§ 204.57–2 Test compressor sample se-
lection. quest.
(g) Unless otherwise indicated in the
(a) Compressors comprising the batch test request, the manufacturer shall se-
sample which are required to be tested
lect the compressors designated in the
pursuant to a test request in accord-
test request for testing.
ance with this subpart will be ran-
domly selected from a batch of com- (h) At their discretion, EPA Enforce-
pressors of the category or configura- ment Officers, rather than the manu-
tion specified in the test request. The facturer, may select the compressors
random selection will be achieved by designated in the test request.
99
§ 204.57–3 40 CFR Ch. I (7–1–21 Edition)
(i) The manufacturer will keep on under this subpart or are approved in
hand all compressors in the batch sam- advance by the Administrator.
ple until such time as the batch is ac- [47 FR 57712, Dec. 28, 1982]
cepted or rejected in accordance with
§ 204.57–6; Except, that compressors ac- § 204.57–4 Testing.
tually tested and found to be in con-
(a) The manufacturer shall conduct
formance with these regulations need
one valid test in accordance with the
not be kept.
test procedures specified in § 204.54 for
§ 204.57–3 Test compressor prepara- each compressor selected for testing
tion. pursuant to this subpart.
(b) No maintenance will be performed
(a) Prior to the official test, the test on test compressors, except as provided
compressor selected in accordance with for by § 204.57–3. In the event a com-
§ 204.57–2 shall not be prepared, tested, pressor is unable to complete the emis-
modified, adjusted, or maintained in sion test, the manufacturer may re-
any manner unless such adjustments, place the compressor. Any replacement
preparations, modifications and/or compressor will be a production com-
tests are part of the manufacturer’s pressor of the same configuration, and
prescribed manufacturing and inspec- the replacement compressor will be
tion procedures and are documented in randomly selected from the batch sam-
the manufacturer’s internal comple and will be subject to all the provi-
pressor assembly and inspection proce- sions of these regulations.
dures or unless such adjustments and/
or tests are required or permitted § 204.57–5 Reporting of test results.
under this subpart or are approved in (a)(1) The manufacturer shall submit
advance by the Administrator. The a copy of the test report for all testing
manufacturer may perform adjust- conducted pursuant to § 204.57 at the
ments, preparations, modifications conclusion of each twenty-four hour
and/or tests normally performed by a period during which testing is done.
dealer to prepare the compressor for (2) For each test conducted the man-
delivery to a customer or the adjust- ufacturer will provide the following in-
ments, preparations, modifications formation:
and/or tests normally performed at the (i) Configuration and category identi-
port-of-entry by the manufacturer to fication, where applicable.
prepare the compressor for delivery to (ii) Year, make, assembly date, and
a dealer or customer. model of compressor.
(b) Equipment of fixtures necessary (iii) Compressor serial number.
to conduct the test may be installed on (iv) Test results by serial numbers
the compressor: Provided, That such (3) The first test report for each
equipment of fixtures shall have no ef- batch sample will contain a listing of
fect on the noise emissions of the com- all serial numbers in that batch.
pressor, as determined by the appro- (b) In the case where an EPA En-
priate measurement methodology. forcement Officer is present during
(c) In the event of compressor testing required by this subpart, the
manfunction (i.e., failure to start, mis- written reports requested in paragraph
firing cylinder, etc.), the manufacturer (a) of this section may be given di-
may perform the maintenance nec- rectly to the Enforcement Officer.
essary to enable the compressor to op- (c) Within five days after completion
erate in a normal manner. of testing of all compressors in a batch
(d) No quality control, testing, as- sample, the manufacturer shall submit
sembly, or selection procedures shall to the Administrator a final report
be used on the completed test com- which will include the information re-
pressor or any portion thereof, includ- quired by the test request in the for-
ing parts and subassemblies, that will mat as stipulated, in addition to the
not normally be used during the pro- following:
duction and assembly of all other com- (1) The name, location, and descrip-
pressors of that category which will be tion of the manufacturer’s noise test
distributed in commerce, unless such facilities which meet the specifications
procedures are required or permitted of § 204.54 and were utilized to conduct
100
testing reported pursuant to this sec- § 204.57–6 Acceptance and rejection of

tion; except, that a test facility that batches.
has been described in a previous sub- (a) A failing compressor is one whose
mission under this subpart need not be measured sound level is in excess of the
described again but must be identified applicable noise emission standard.
as such. (b) The batch from which a batch
(2) A description of the random com- sample is selected will be accepted or
pressor selection method used, ref- rejected based upon the number of fail-
erencing any tables of random numbers ing compressors in the batch sample. A
that were used, and the name of the sufficient number of test samples will
person in charge of the random number be drawn from the batch sample until
selection. the cumulative number of failing com-
(3) The following information for pressors is less than or equal to the ac-
each test conducted: ceptance number or greater than or
equal to the rejection number appro-
(i) The completed data sheet required
priate for the cumulative number of
by § 204.54 for all noise emission tests
compressors tested. The acceptance
including, for each invalid test, the and rejection numbers listed in Appen-
reason for invalidation. dix I, Table II at the appropriate code
(ii) A complete description of any letter obtained according to § 204.57–2
modification, repair, preparation, will be used in determining whether
maintenance, and/or testing which was the acceptance or rejection of a batch
performed on the test compressor and has occurred.
will not be performed on all other pro- (c) Acceptance or rejection of a batch
duction compressors. takes place when a decision is made on
(iii) The reason for the replacement, the last compressor required to make a
where a replacement compressor was decision under paragraph (b) of this
authorized by the Administrator, and, section.
if any, the test results for replaced
compressors. § 204.57–7 Acceptance and rejection of
batch sequence.
(4) The following statement and en-
dorsement: (a) The manufacturer will continue
to inspect consecutive batches until
This report is submitted pursuant to sec- the batch sequence is accepted or re-
tion 6 and section 13 of the Noise Control Act jected. The batch sequence will be ac-
of 1972. All testing for which data is reported cepted or rejected based upon the num-
herein was conducted in strict conformance
ber of rejected batches. A sufficient
with applicable regulations under 40 CFR
Part 204 et seq. All the data reported herein number of consecutive batches will be
are a true and accurate representation of inspected until the cumulative number
such testing. All other information reported of rejected batches is less than or equal
herein is, to the best of (company) knowl- to the sequence acceptance number or
edge true and accurate. I am aware of the greater than or equal to the sequence
penalties associated with violations of the rejection number appropriate for the
Noise Control Act of 1972 and the regulations cumulative number of batches in-
thereunder. spected. The acceptance and rejection
numbers listed in Appendix I, Table III
(authorized representative) at the appropriate code letter obtained
(d) All information required to be for- according to § 204.57–2 will be used in
warded to the Administrator pursuant determining whether the acceptance or
to this section shall be addressed to Di- rejection of a batch sequence has oc-
rector, Noise Enforcement Division curred.
(EN–387), U.S. Environmental Protec- (b) Acceptance or rejection of a batch
tion Agency, Washington, DC 20460. sequence takes places when the deci-
sion is made on the last compressor re-
(Secs. 6 and 13, Noise Control Act, Pub. L. 92– quired to make a decision under para-
574, 86 Stat. 1244 (42 U.S.C. 4912)) graph (a) of this section.
[41 FR 2172, Jan. 14, 1976, as amended at 42 (c) If the batch sequence is accepted,
FR 41635, Aug. 18, 1977; 43 FR 38705, Aug. 30, the manufacturer will not be required
1978] to perform any additional testing on
101
§ 204.57–8 40 CFR Ch. I (7–1–21 Edition)
compressors from subsequent batches not comply with the applicable stand-
pursuant to the initiating test request. ards is a prohibited act.
(d) The Administrator may terminate (Sec. 6, 13, Pub. L. 92–574 (42 U.S.C. 4912))
testing earlier than required in para-
graph (b) of this section based on a re- FR 61455, Dec. 5, 1977; 44 FR 54295, Sept. 19,
quest by the manufacturer accom- 1979]
panied by voluntary cessation of dis-
tribution in commerce, from all plants, § 204.57–9 Prohibition of distribution
of compressors from the configuration in commerce; manufacturer’s
remedy.
in question: Provided, That once pro-
duction is reinitiated, the manufac- (a) The Administrator will permit
turer must take the action described in the cessation of continued testing
§ 204.57–9 (a)(1) and (a)(2) prior to dis- under § 204.57–8 once the manufacturer
tribution in commerce of any compres- has taken the following actions:
sors from any plant of the compressor (1) Submit a written report to the
Administrator which identifies the rea-
category or configuration in question.
son for the noncompliance of the com-
§ 204.57–8 Continued testing. pressors, describes the problem, and de-
scribes the proposed quality control
(a) If a batch sequence is rejected in and/or quality assurance remedies to be
accordance with paragraph (b) of taken by the manufacturer to correct
§ 204.57–7, the Administrator may re- the problem or follows the require-
quire that any or all compressors of ments for an engineering change. Such
that category, configuration or sub- requirements include the following:
group thereof produced at that plant be (i) Any change to a configuration
tested before distribution in commerce. with respect to any of the parameters
(b) The Administrator will notify the stated in § 204.55–3 shall constitute the
manufacturer in writing of his intent addition of a new and separate configu-
to require such continued testing of ration or category to the manufactur-
compressors pursuant to paragraph (a) er’s product line.
(ii) When a manufacturer introduces
of this section.
a new category or configuration to his
(c) The manufacturer may request a
product line, he shall proceed in ac-
hearing on the issues of whether the se- cordance with § 204.55–2.
lective enforcement audit was con- (iii) If the configuration to be added
ducted properly; whether the criteria can be grouped within a verified cat-
for batch sequence rejection in § 204.57– egory and the new configuration is es-
7 have been met; and, the appropriate- timated to have a lower sound level
ness or scope of a continued testing than a previously verified configura-
order. In the event that a hearing is re- tion with the same category, the con-
quested, the hearing shall begin no figuration shall be considered verified.
later than 15 days after the date on (2) Demonstrates that the specified
which the Administrator received the compressor category, configuration or
hearing request. Neither the request subgroup thereof has passed a retest
for a hearing nor the fact that a hear- conducted in accordance with § 204.57
ing is in progress shall affect the re- and the conditions specified in the ini-
sponsibility of the manufacturer to tial test request.
commence and continue testing re- (3) The manufacturer may begin test-
quired by the Administrator pursuant ing under paragraph (a)(2) of this sec-
to paragraph (a) of this section. tion, upon submitting such report, and
may cease continued testing upon
(d) Any tested compressor which
making the demonstration required by
demonstrates conformance with the ap-
paragraph (a)(2) of this section: Pro-
plicable standards may be distributed
vided, That the Administrator may re-
into commerce. quire resumption of contined testing if
(e) Any knowing distribution into he determines that the manufacturer
commerce of a compressor which does has not satisfied the requirements of

paragraphs (a) (1) and (2) of this sec-
tion.
102
(4) In lieu of paragraphs (a) (1) and (2) this warranty for the life of the air com-
of this section, the Administrator will pressor.
permit the cessation of continued test- (b) [Reserved]
ing under § 204.57–8 with respect to any
subgroup of a nonconforming category (Secs. 6 and 13, Noise Control Act, Pub. L. 92–
or configuration if the manufacturer 574, 86 Stat. 1244 (42 U.S.C. 4912))
demonstrates to the satisfaction of the [41 FR 2172, Jan. 14, 1976, as amended at 47
Administrator that such subgroup does FR 57712, Dec. 28, 1982]
not exhibit the cause of the noncon-
formity of such category or configura- § 204.58–2 Tampering.
tion. (a) For each configuration of air com-
(b) Any compressor failing the pre- pressors covered by this part, the man-
scribed noise emission tests conducted ufacturer shall develop a list of those
pursuant to this Subpart B may not be acts which, in his judgment, might be
distributed in commerce until nec- done to the air compressor in use and
essary adjustments or repairs have which would constitute the removal or
been made and the compressor passes a rendering inoperative of noise control
retest. devices or elements of design of the
(c) No compressors of a rejected compressor.
batch which are still in the hands of (b) The manufacturer shall include in
the manufacturer may be distributed the owner’s manual the following infor-
in commerce unless the manufacturer mation:
has demonstrated to the satisfaction of (1) The statement:
the Administrator that such compres-
sors do, in fact, conform to the regula- TAMPERING WITH NOISE CONTROL SYSTEM
tions; except, that any compressor that PROHIBITED
has been tested and does, in fact, con-
Federal law prohibits the following acts or
form with these regulations may be
the causing thereof:
distributed in commerce. (1) The removal or rendering inoperative
(Secs. 6, 10, 13, Pub. L. 92–574 (42 U.S.C. 4909 by any persons, other than for purposes of
and 4912)) maintenance, repair, or replacement, of any
devices or element of design incorporated
[41 FR 2172, Jan. 14, 1976, as amended at 42 into any new compressor for the purpose of
FR 61455, Dec. 5, 1977; 47 FR 57712, Dec. 28, noise control prior to its sale or delivery to
1982] the ultimate purchaser or while it is in use;
or (2) the use of the compressor after such
§ 204.58 In-use requirements. device or element of design has been re-
moved or rendered inoperative by any per-
§ 204.58–1 Warranty. son.
(a) The portable air compressor man- (2) The statement:
ufacturer shall include in the owner’s
Among those acts included in the prohibi-
manual or in other information sup-
tion against tampering are the acts listed
plied to the ultimate purchaser, the below.
following statement:
Immediately following this statement,
NOISE EMISSIONS WARRANTY the manufacturer shall include the list
The manufacturer warrants to the ulti-
developed under paragraph (a) of this
mate purchaser and each subsequent pur- section.
chaser that this air compressor was de- (c) Any act included in the list pre-
signed, built, and equipped to conform at the pared pursuant to paragraph (a) of this
time of sale to the first retail purchaser, section is presumed to constitute tam-
with all applicable U.S. E.P.A. noise control pering; however, in any case in which a
regulations. proscribed act has been committed and
This warranty is not limited to any par- it can be shown that such act resulted
ticular part, component, or system of the air
in no increase in the sound level of the
compressor. Defects in the design, assembly,
or in any part, component, or system of the compressor or that the compressor still
compressor which, at the time of sale to the meets the noise emission standard of
first retail purchaser, caused noise emissions § 204.52, such set will not constitute
to exceed Federal standards are covered by tampering.
103
§ 204.58–3 40 CFR Ch. I (7–1–21 Edition)
(d) The provisions of this section are § 204.59 Recall of non-complying com-
not intended to preclude any State or pressors.
local jurisdiction from adopting and (a) Pursuant to section 11(d)(1) of the
enforcing its own prohibitions against
Act, the Administrator may issue an
the removal or rendering inoperative of
order to the manufacturer to recall and
noise control systems on compressors
repair or modify any compressor dis-
subject to this part.
tributed in commerce not in compli-
(Secs. 6 and 13, Noise Control Act, Pub. L. 92– ance with this subpart.
574, 86 Stat. 1244 (42 U.S.C. 4912)) (b) A recall order issued pursuant to
[41 FR 2172, Jan. 14, 1976, as amended at 47 this section shall be based upon a de-
FR 57713, Dec. 28, 1982] termination by the Administrator that
compressors of a specified category or
§ 204.58–3 Instructions for mainte- configuration have been distributed in
nance, use, and repair.
commerce which do not conform to the
(a)(1) The manufacturer shall provide regulations. Such determination may
to the ultimate purchaser of each port- be based on:
able air compressor covered by this (1) A technical analysis of the noise
part written instructions for the proper emission characteristics of the cat-
maintenance, use, and repair of the egory or configuration in question; or
compressor in order to provide reason- (2) Any other relevant information,
able assurance of the elimination or including test data.
minimization of noise emission deg-
(c) For the purposes of this section,
radation throughout the life of the
noise emissions may be measured by
compressor.
any test prescribed in § 204.54 for test-
(2) The purpose of the instructions is
ing prior to sale or any other test
to inform purchasers and mechanics of
those acts necessary to reasonably as- which has been demonstrated to cor-
sure that degradation of noise emission relate with the prescribed test proce-
levels is eliminated or minimized dur- dure.
ing the life of the compressor. Manu- (d) Any such order shall be issued
facturers should prepare the instruc- only after notice and an opportunity
tions with this purpose in mind. The for a hearing in accordance with sec-
instructions should be clear and, to the tion 554 of Title 5 of the United States
extent practicable, written in non- Code.
technical language. (e) All costs, including labor and
(3) The instructions must not be used parts, associated with the recall and
to secure an unfair competitive advan- repair or modification of non-com-
tage. They should not restrict replace- plying compressors under this section
ment equipment to original equipment shall be borne by the manufacturer.
or service to dealer service. Manufac- (f) This section shall not limit the
turers who so restrict replacement discretion of the Administrator to take
equipment must make public any per- any other actions which are authorized
formance specifications on such equip- by the Act.
ment.
(Secs. 6, 11, Pub. L. 92–574 (42 U.S.C. 4910))
(b) For the purpose of encouraging
proper maintenance, the manufacturer [41 FR 2172, Jan. 14, 1976, as amended at 42
shall provide a record or log book FR 61456, Dec. 5, 1977]
which shall contain a performance
schedule for all required noise emission APPENDIX I TO PART 204
control maintenance. Space shall be
provided in this record book so that TABLE I—SAMPLE SIZE CODE LETTERS
the purchaser can note what mainte- Code
Batch size
nance was done, by whom, where and letter
when.
4 to 8 ....................................................................... A.
(Secs. 6, 13, Pub. L. 92–574 (42 U.S.C. 4912)) 9 to 15 ..................................................................... B.
16 to 25 ................................................................... C.
[41 FR 2172, Jan. 14, 1976, as amended at 47 26 and larger ........................................................... D.

FR 57713, Dec. 28, 1982]
104
TABLE II—SAMPLING PLANS FOR INSPECTING BATCHES

Batch inspection criteria
Cumulative
Test sam-
Sample size code letter Test sample test sam- Accept-
ple size Rejection
ple size ance num- number
ber
A ............................................................. 1st ............................................. 4 4 0 1

B ............................................................. 1st ............................................. 3 3 0 1
C ............................................................ 1st ............................................. 3 3 0 2
2d .............................................. 3 6 1 2
D ............................................................ 1st ............................................. 2 2 (1) 2
2d .............................................. 2 4 1
( ) 2
3d .............................................. 2 6 0 2
4th ............................................. 2 8 0 3
5th ............................................. 2 10 1 3
6th ............................................. 2 12 1 3
7th ............................................. 2 14 2 3
1 Batch acceptance not permitted at this sample size.
TABLE III—BATCH SEQUENCE PLANS

Sequence inspection
criteria
Cumulative
Number
Sample size code letter number
batches Accept-
batches Rejection
ance num- number
ber
A .................................................................................................................... 2 2 1 (1)
2 4 2 4
2 6 3 5
2 8 4 5
B .................................................................................................................... 2 2 0 (1)
2 4 1 4
2 6 2 5
2 8 3 5
2 10 4 6
2 12 5 6
C .................................................................................................................... 2 2 (2) 2
2 4 0 2
2 6 0 3
2 8 1 3
2 10 2 4
2 12 3 4
D .................................................................................................................... 2 2 0 2
2 4 1 3
2 6 2 4
2 8 3 4
1 Batch sequence rejection not permitted for this number of batches.
2 Batch sequence acceptance not permitted for this number of batches.
TABLE IV—RECOMMENDED FORMAT FOR PORTABLE AIR COMPRESSOR NOISE DATA SHEET
Test report number: ...................... .
Subject:
Manufacturer: .......................................................... Model: ............................................. Serial No.: .......
Rated speed: .......................... Rpm: ................... Rated capacity: ............................... ......................... cfm (m3/in).
Configuration identification: .................................... Category identification: ................... .........................
Portable air compressor identification No.: ............ Build date: ....................................... .........................
Test conditions:
Manufacturer’s test site identification and location: ..........................................................................................
Reflecting plane composition: ...........................................................................................................................
Operating speed as tested:
Beginning of test ............. rpm
End of test ...................... rpm
Air pressure supplied: ............ psi (kg/cm2) Ambient wind speedlllmph
(km/hr).
Actual flow rate: ..................... cfm (m3/min.) Atmospheric pressurelllpsi
(kg/cm2).
Temperature: .......................... °F (°C)
Instrumentation:
Microphone Manufacturer: ...................................... Model No.: ...................................... Serial No.: .......
Sound Level Meter Manufacturer: .......................... Model No.: ...................................... Serial No.: .......
Calibrator Manufacturer: ......................................... Model No.: ...................................... Serial No.: .......
105
TABLE IV—RECOMMENDED FORMAT FOR PORTABLE AIR COMPRESSOR NOISE DATA SHEET—
Continued
Other and Manufacturer: ........................................ Model No.: ...................................... Serial No.: .......
Data:
Location
Sound levels (deci- Background sound level at Average

bels) location 1 (decibels) sound
1 2 3 4 5 level (deci-
bels)
A-Weighted
Tested by: ............................................................................................................................................. Date: ............. ..................

Reported by: ......................................................................................................................................... Date: ............. ..................
Supervisory personnel: ............................................................................................. Title: .............. ....................... ..................
Title: .............. ....................... ..................
PART 205—TRANSPORTATION 205.58–2 Tampering.

205.58–3 Instructions for maintenance, use
EQUIPMENT NOISE EMISSION and repair.
CONTROLS 205.59 Recall of noncomplying vehicles.
APPENDIX I TO SUBPART B OF PART 205
Sec.
Subpart C [Reserved]
205.1 General applicability.
205.2 Definitions. Subpart D—Motorcycles
205.3 Number and gender. 205.150 Applicability.
205.4 Inspection and monitoring.
205.151 Definitions.
205.5 Exemptions.
205.152 Noise emission standards.
205.5–1 Testing exemption.
205.5–2 National security exemptions. 205.153 Engine displacement.
205.5–3 Export exemptions. 205.154 Consideration of alternative test
procedures.
Subpart B—Medium and Heavy Trucks 205.155 Motorcycle class and manufacturer
abbreviation.
205.50 Applicability. 205.156 [Reserved]
205.51 Definitions. 205.157 Requirements.
205.52 Vehicle noise emission standards. 205.157–1 General requirements.
205.54 Test procedures. 205.157–2 Compliance with standards.
205.54–1 Low speed sound emission test pro- 205.157–3 Configuration identification.
cedures. 205.158 Labeling requirements.
205.54–2 Sound data acquisition system. 205.159 Testing by the Administrator.
205.55 Requirements. 205.160 Selective enforcement auditing
205.55–1 General requirements. (SEA) requirements.
205.55–2 Compliance with standards. 205.160–1 Test request.
205.55–3 Configuration identification. 205.160–2 Test sample selection and prepara-
205.55–4 Labeling-compliance. tion.
205.55–5 Labeling-exterior. [Reserved] 205.160–3 [Reserved]
205.56 Testing by the Administrator.
205.160–4 Testing procedures.
205.57 Selective enforcement auditing re-
205.160–5 Reporting of the test results.
quirements.
205.160–6 Passing or failing under SEA.
205.57–1 Test request.
205.57–2 Test vehicle sample selection. 205.160–7 Continued testing.
205.57–3 Test vehicle preparation. 205.160–8 Prohibition of distribution in com-
205.57–4 Testing procedures. merce; manufacturer’s remedy.
205.57–5 Reporting of the test results. 205.162 In-use requirements.
205.57–6 Acceptance and rejection of 205.162–1 Warranty.
batches. 205.162–2 Tampering.
205.57–7 Acceptance and rejection of batch 205.162–3 Instructions for maintenance, use,
sequence. and repair.
205.57–8 Continued testing. 205.163 Recall of noncomplying motorcycles;
205.57–9 Prohibition on distribution in com- relabeling of mislabled motorcycles.
merce; manufacturer’s remedy. APPENDIX I TO SUBPARTS D AND E OF PART

205.58 In-use requirements. 205—MOTORCYCLE NOISE EMISSION TEST
205.58–1 Warranty. PROCEDURES [NOTE]
106
Subpart E—Motorcycle Exhaust Systems (3) Agency means the United States
Environmental Protection Agency.
205.165 Definitions. (4) Export exemption means an exemp-
205.166 Noise emission standards. tion from the prohibitions of section
205.167 Consideration of alternative test 10(a) (1), (2), (3), and (4) of the Act,
procedures. granted by statute under section
205.168 Requirements. 10(b)(2) of the Act for the purpose of ex-
205.168–1 General requirements. porting regulated products.
205.168–11 Order to cease distribution.
(5) National security exemption means
205.169 Labeling requirements.
205.170 Testing by the Administrator.
an exemption from the prohibitions of
205.171 Selective enforcement auditing section 10(a) (1), (2), (3), and (5) of the
(SEA) requirements. Act, which may be granted under sec-
205.171–1 Test request. tion 10(b)(1) of the Act for the purpose
205.171–2 Test exhaust system sample selec- of national security.
tion and preparation. (6) [Reserved]
205.171–3 Test motorcycle sample selection.
(7) Sound Level means 20 times the
205.171–6 Testing procedures.
205.171–7 Reporting of the test results. logarithm to base 10 of the ratio of
205.171–8 Passing or failing under SEA. pressure of a sound to the reference
205.171–9 Continued testing. pressure. The reference pressure is 20
205.171–10 Prohibition on distribution in micropascals (20 micronewtons per
commerce; manufacturer’s remedy. square meter). NOTE: Unless otherwise
205.172 Maintenance of records; submittal of explicitly stated, it is to be understood
information. that the sound pressure is the effective
205.173 In-use requirements.
(rms) sound pressure, per American Na-
205.173–1 Warranty.
205.173–2 Tampering. tional Standards Institute, Inc., 1430
205.173–3 Warning statement. Broadway, New York, New York 10018.
205.173–4 Information sheet. (8) Sound Pressure Level means in
205.174 Remedial orders. decibels, 20 times the logarithm to the
APPENDIX I TO SUBPARTS D AND E OF PART base 10 of the ratio of a sound pressure
205—MOTORCYCLE NOISE EMISSION TEST to the reference sound pressure of 20
PROCEDURES micropascals (20 micronewtons per
APPENDIX II TO SUBPART E OF PART 205—SAM- square meter). In the absence of any
PLING TABLES
modifier, the level is understood to be
AUTHORITY: Secs. 6, 10, 11, 13, Pub. L. 92– that of a root-mean-square pressure.
574, 86 Stat. 1234 (42 U.S.C. 4905, 4909, 4910, The unit of any sound level is the dec-
4912). ibel, having the unit symbol dB.
SOURCE: 41 FR 15544, Apr. 13, 1976, unless (9) dB(A) means the standard abbre-
otherwise noted. viation for A-weighted sound levels in
decibels.
Subpart A—General Provisions (10) Highway means the streets,
roads, and public ways in any State.
§ 205.1 General applicability. (11) Fast Meter Response means that
The provisions of this subpart are ap- the fast dynamic response of the sound
plicable to all products for which regu- level meter shall be used. The fast dy-
lations have been published under this namic response shall comply with the
part and which are manufactured after meter dynamic characteristics in para-
the effective date of such regulations. graph 5.3 of the American National
Standard Specification for Sound Level
§ 205.2 Definitions. Meters, ANSI SI.4–1971. This publica-
(a) As used in this subpart, all terms tion is available from the American
not defined herein shall have the mean- National Standards Institute, Inc., 1430
ing given them in the Act. Broadway, New York, New York 10018.
(1) Act means the Noise Control Act (12) Person means an individual, cor-
of 1972 (Pub. L. 92–574, 86 Stat. 1234). poration, partnership, or association,
(2) Administrator means the Ad- and except as provided in sections 11(e)
ministrator of the Environmental Pro- and 12(a) of the Act includes any offi-
tection Agency or his authorized repre- cer, employee, department, agency or
sentative. instrumentality of the United States, a
107
§ 205.3 40 CFR Ch. I (7–1–21 Edition)
State or any political subdivision of a the Administrator is authorized to re-

State. quire pursuant to section 6(c)(1) of the
(13) Reasonable assistance means pro- Act.
viding timely and unobstructed access (25) Type I Sound Level Meter means a
to test products or products and sound level meter which meets the
records required by this part, and op- Type I requirements of ANSI SI.4–1972
portunity for copying such records or specification for sound level meters.
testing such test products. This publication is available from the
(14) Ultimate purchaser means the first American National Standards Insti-
person who in good faith purchases a tute, Inc., 1430 Broadway, New York,
product for purposes other than resale. New York 10018.
(15) New product means (i) a product (26) Testing exemption means an ex-
the equitable or legal title of which has emption from the prohibitions of sec-
never been transferred to an ultimate tion 10(a) (1), (2), (3), and (5) of the Act,
purchaser, or (ii) a product which is which may be granted under section
imported or offered for importation 10(b)(1) of the Act for the purpose of re-
into the United States and which is search, investigations, studies, dem-
manufactured after the effective date onstrations, or training, but not in-
of a regulation under section 6 or 8 cluding national security.
which would have been applicable to (27) Product means any transpor-
such product had it been manufactured tation equipment for which regulations
in the United States. have been promulgated under this part
(16) Manufacturer means any person and includes ‘‘test product.’’
engaged in the manufacturing or as- (28) Test product means any product
sembling of new products, or the im- that is required to be tested pursuant
porting of new products for resale, or to this part.
who acts for and is controlled by any [41 FR 15544, Apr. 13, 1976, as amended at 42
such person in connection with the dis- FR 61457, Dec. 5, 1977]
tribution of such products.
(17) Commerce means trade, traffic, § 205.3 Number and gender.
commerce, or transportation: As used in this part, words in the
(i) Between a place in a State and singular shall be deemed to import the
any place outside thereof, or plural, and words in the masculine
(ii) Which affects trade, traffic, com- gender shall be deemed to import the
merce, or transportation described in feminine and vice versa, as the case
paragraph (a)(17)(i) of this section. may require.
(18) Distribute in commerce means sell
in, offer for sale in, or introduce or de- § 205.4 Inspection and monitoring.
liver for introduction into, commerce. (a) Any inspection or monitoring ac-
(19) State includes the District of Co- tivities conducted under this section
lumbia, the Commonwealth of Puerto shall be for the purpose of determining
Rico, the Virgin Islands, American (1) whether test products are being se-
Samoa, Guam, and the Trust Territory lected and prepared for testing in ac-
of the Pacific Islands. cordance with the provisions of these
(20) Federal Agency means an ex- regulations, (2) whether test product
ecutive agency (as defined in section testing is being conducted in accord-
105 of title 5, United States Code) and ance with these regulations, and (3)
includes the United States Postal whether products being produced for
Service. distribution into commerce comply
(21) Environmental noise means the in- with these regulations.
tensity, duration, and the character of (b) The Director, Noise Enforcement
sounds from all sources. Division, may request that a manufac-
(22) Warranty means the warranty re- turer subject to this part admit an
quired by section 6(c)(1) of the Act. EPA Enforcement Officer during oper-
(23) Tampering means those acts pro- ating hours to any of the following:
hibited by section 10(a)(2) of the Act. (1) Any facility or site where any
(24) Maintenance instructions or in- product to be distributed into com-

structions means those instructions for merce is manufactured, assembled, or
maintenance, use, and repair, which stored;
108
(2) Any facility or site where any or compilation of records is taking

tests conducted pursuant to this part place, or any other procedure or activ-
or any procedures or activities con- ity related to selective enforcement
nected with such tests are or were per- audit testing or product manufacture
formed; and or assembly being carried out in a fa-
(3) Any facility or site where any test cility.
product is present. (e) The manufacturer shall admit to
(c)(1) An EPA Enforcement Officer, a facility or site an EPA Enforcement
once admitted to a facility or site, will Officer who presents a warrant author-
not be authorized to do more than: izing entry. In the absence of such war-
(i) To inspect and monitor test prod- rant, entry to any facility or site under
uct manufacture and assembly, selec- this section will be only upon the con-
tion, storage, preconditioning, noise sent of the manufacturer.
emission testing, and maintenance, and (1) It is not a violation of this regula-
to verify correlation or calibration of tion or the Act for any person to refuse
test equipment; entry without a warrant.
(ii) To inspect products prior to their (2) The Administrator or his designee
distribution in commerce: may proceed ex parte to obtain a war-
(iii) To inspect and photograph any rant whether or not the manufacturer
part or aspect of any such product and has refused entry.
any component used in the assembly
thereof that are reasonably related to [41 FR 15544, Apr. 13, 1976, as amended at 43
the purpose of his entry. FR 27990, June 28, 1978; 47 FR 57713, Dec. 28,
(iv) [Reserved] 1982]
(v) To obtain from those in charge of
the facility or site such reasonable as- § 205.5 Exemptions.
sistance as he may request to enable
§ 205.5–1 Testing exemption.
him to carry out any proper function
listed in this section. (a) A new product intended to be used
(2) [Reserved] solely for research, investigations,
(3) The provisions of this section studies, demonstrations or training,
apply whether the facility or site is and so labeled or marked on the out-
owned or controlled by the manufac- side of the container and on the prod-
turer or by one who acts for the manu- uct itself, shall be exempt from the
facturer. prohibitions of section 10(a)(1), (2), (3),
(d) For purposes of this section: and (5) of the Act.
(1) An ‘‘EPA Enforcement Officer’’ is (b) No request for a testing exemp-
an employee of the EPA Office of En- tion is required.
forcement who displays upon arrival at (c) For purposes of section 11(d) of
a facility or site the credentials identi- the Act, any testing exemption shall be
fying him as such an employee and a void ab initio with respect to each new
letter signed by the Director, Noise En- product, originally intended for re-
forcement Division designating him to search, investigations, studies, dem-
make the inspection. onstrations, or training, but distrib-
(2) Where test product storage areas uted in commerce for other uses.
or facilities are concerned, ‘‘operating
hours’’ shall mean all times during [47 FR 57713, Dec. 28, 1982]
which personnel other than custodial
§ 205.5–2 National security exemptions.
personnel are at work in the vicinity of
the area or facility and have access to (a) A new product which is produced
it. to conform with specifications devel-
(3) Where facilities or areas other oped by a national security agency,
than those covered by paragraph (d)(2) and so labeled or marked on the out-
of this section are concerned, ‘‘oper- side of the container and on the prod-
ating hours’’ shall mean all times dur- uct itself, shall be exempt from the
ing which product manufacture or as- prohibitions of section 10(a)(1), (2), (3),
sembly is in operation or all times dur- and (5) of the Act.

ing which product testing and mainte- (b) No request for a national security
nance is taking place and/or production exemption is required.
109
§ 205.5–3 40 CFR Ch. I (7–1–21 Edition)
(c) For purposes of section 11(d) of commerce for use in any state. Such
the Act, any national security exemp- reasonable efforts would include con-
tion shall be void ab initio with respect sideration of prior dealings with any
to each new product, originally in- person which resulted in introduction
tended to be produced to conform with into commerce of a product manufac-
specifications developed by a national tured for export only, investigation of
security agency, but distributed in prior instances known to the manufac-
commerce for other uses. turer of introduction into commerce of
(d) Any manufacturer or person sub- a product manufactured for export
ject to the liabilities of section 11(a) only, and contract provisions which
with respect to any product originally minimize the probability of introduc-
intended for a national security agen- tion into commerce of a product manu-
cy, but distributed in commerce for use factured for export only.
in any State, may be excluded from the
application of section 11(a) with re- [41 FR 15544, Apr. 13, 1976, as amended at 42
spect to such product based upon a FR 61457, Dec. 5, 1977. Redesignated at 47 FR
showing that such manufacturer: 57714, Dec. 28, 1982]
(1) Had no knowledge of such product
being distributed in commerce for use Subpart B—Medium and Heavy
in any state; and Trucks
(2) Made reasonable effort to ensure
that such products would not be dis- § 205.50 Applicability.
tributed in commerce for use in any
(a) Except as otherwise provided for
State. Such reasonable efforts would
in these regulations the provisions of
include investigation, prior dealings,
this subpart apply to any vehicle which
contract provisions, etc.
has a gross vehicle weight rating
[47 FR 57714, Dec. 28, 1982] (GVWR) in excess of 10,000 pounds,
which is capable of transportation of
§ 205.5–3 Export exemptions. property on a highway or street and
(a) A new product intended solely for which meets the definition of the term
export, and so labeled or marked on the ‘‘new product’’ in the Act.
outside of the container and on the (b) The provisions of the subpart do
product itself, shall be exempt from not apply to highway, city, and school
the prohibitions of section 10(a), (1), (2), buses or to special purpose equipment
(3), and (4) of the Act. which may be located on or operated
(b) No request for an export exemp- from vehicles. Tests performed on vehi-
tion is required. cles containing such equipment may be
(c) For purposes of section 11(d) of carried out with the special purpose
the Noise Control Act, the Adminis- equipment in nonoperating condition.
trator may consider any export exemp- For purposes of this regulation special
tion under section 10(b)(2) as void ab purpose equipment includes, but is not
initio with respect to each new product limited to, construction equipment,
intended solely for export which is dis- snow plows, garbage compactors and
tributed in commerce for use in any refrigeration equipment.
State.
(d) In deciding whether to institute § 205.51 Definitions.
proceedings against a manufacturer
pursuant to section 11(d)(1) of the Act (a) As used in this subpart, all terms
with respect to any product originally not defined herein shall have the mean-
intended solely for export but distrib- ing given them in the Act or in other
uted in commerce for use in any state, subparts of this part.
the Administrator will consider: (1) Acceptable Quality Level means the
(1) Whether the manufacturer had maximum percentage of failing vehi-
knowledge that such product would be cles that for purposes of sampling in-
distributed in commerce for use in any spection, can be considered satisfac-
state; and tory as a process average.
(2) Whether the manufacturer made (2) Acceptance of a batch means that
reasonable efforts to ensure that such the number of noncomplying vehicles
product would not be distributed in in the batch sample is less than or
110
equal to the acceptance number as de- (ii) Is capable of maintaining a cruis-

termined by the appropriate sampling ing speed of at least 25 mph over level,
plan. paved surface;
(3) Batch means the collection of ve- (iii) Is equipped or can readily be
hicles of the same category, configura- equipped with features customarily as-
tion or subgroup thereof as designated sociated with practical street or high-
by the Administrator in a test request, way use, such features including but
from which a batch sample is to be not being limited to: A reverse gear
drawn, and inspected to determine and a differential, fifth wheel, cargo
conformance with the acceptability platform or cargo enclosure, and
criteria. (iv) Does not exhibit features which
(4) Batch size means the number as render its use on a street or highway
designated by the Administrator in the impractical, or highly unlikely, such
test request of vehicles of the same features including, but not being lim-
category or configuration in a batch. ited to, tracked road means, an inordi-
(5) Batch sample means the collection nate size or features ordinarily associ-
of vehicles of the same category, con- ated with combat or tactical vehicles.
figuration or subgroup thereof which (13) Exhaust System means the system
are drawn from a batch and from which comprised of a combination of compo-
test samples are drawn. nents which provides for enclosed flow
(6) Batch sample size means the num- of exhaust gas from engine exhaust
ber of vehicles of the same category or port to the atmosphere.
configuration in a batch sample. (14) Gross Combination Weight Rating
(7) Cab over axle or cab over engine (GCWR) means the value specified by
means the cab which contains the oper- the manufacturer as the loaded weight
ator/passenger compartment is directly of a combination vehicle.
above the engine and front axle and the (15) Gross Vehicle Weight Rating
entire cab can be tilted forward to per- (GVWR) means the value specified by
mit access to the engine compartment. the manufacturer as the loaded weight
(8) Category means a group of vehicle of a single vehicle.
configurations which are identical in (16) Inspection Criteria means the re-
all material aspects with respect to the jection and acceptance numbers associ-
parameters listed in § 205.55–2. ated with a particular sampling plan.
(9) Configuration means the basic (17) Model year means the manufac-
classification unit of a manufacturer’s turer’s annual production period which
product line and is comprised of all ve- includes January 1 of such calendar
hicle designs, models or series which year: Provided, that if the manufac-
are identical in material aspects with turer has no annual production period,
respect to the parameters listed in the term ‘‘model year’’ shall mean the
§ 205.55–3. calendar year.
(10) Acceptance of a Batch sequence (18) Noise Control System includes any
means that the number of rejected vehicle part, component or system the
batches in the sequence is less than or primary purpose of which is to control
equal to the acceptance number as de- or cause the reduction of noise emitted
termined by the appropriate sampling from a vehicle.
plan. (19) Noise emission test means a test
(11) Rejection of a Batch sequence conducted pursuant to the measure-
means that the number of rejected ment methodology specified in this
batches in a sequence is equal to or subpart.
greater than the rejection number as (20) [Reserved]
determined by the appropriate sam- (21) Rejection of a batch means the
pling plan. number of noncomplying vehicles in
(12) Capable of Transportation of Prop- the batch sample is greater than or
erty on a street or highway means that equal to the rejection number as deter-
the vehicle: mined by the appropriate sampling
(i) Is self propelled and is capable of plan.
transporting any material or fixed ap- (22) Shift means the regular pro-
paratus, or is capable of drawing a duction work period for one group of
trailer or semi-trailer; workers.
111
§ 205.52 40 CFR Ch. I (7–1–21 Edition)
(23) Test sample means the collection ified in section 10(a)(1) of the Act, com-
of vehicles from the same category, ply with the other provisions of this
configuration or subgroup thereof subpart or Subpart A, as applicable.
which is drawn from the batch sample (d) In-Use Standard. [Reserved]
and which will receive noise emissions (e) Low Noise Emission Product. [Re-
tests. served]
(24) Failing vehicle means that the (Sec. 6, Pub. L. 92–574, 86 Stat. 1237 (42 U.S.C.
measured emissions of the vehicle, 4905, 4906))
when measured in accordance with the
applicable procedure, exceeds the appli- [41 FR 15544, Apr. 13, 1976, as amended at 42
FR 61456, Dec. 5, 1977; 51 FR 852, Jan. 8, 1986]
cable standard.
(25) Acceptance of a vehicle means that § 205.54 Test procedures.
the measured emissions of the vehicle
when measured in accordance with the The procedures described in this and
applicable procedure, conforms to the subsequent sections will be the test
applicable standard. program to determine the conformity
(26) Tampering means those acts proof vehicles with the standards set forth
hibited by section 10(a)(2) of the Act. in § 205.52 for the purposes of Selective
(27) Test sample size means the num- Enforcement Auditing and Testing by
ber of vehicles of the same category or the Administrator.
configuration in a test sample. [47 FR 57714, Dec. 28, 1982]
(28) Test vehicle means a vehicle se-
lected and used to demonstrate compli- § 205.54–1 Low speed sound emission
ance with the applicable noise emission test procedures.
standards. (a) Instrumentation. The following in-
(29) Vehicle means any motor vehicle, strumentation shall be used, where ap-
machine or tractor, which is propelled plicable.
by mechanical power and capable of (1) A sound level meter which meets
transportation of property on a street the Type 1 requirements of ANSI S1.4–
or highway and which has a gross vehi- 1971, Specification for Sound Level Me-
cle weight rating in excess of 10,000 ters, or a sound level meter may be
pounds and a partially or fully enclosed used with a magnetic tape recorder
operator’s compartment. and/or a graphic level recorder or indi-
cating meter, providing the system
[41 FR 15544, Apr. 13, 1976, as amended at 42
FR 61456, 61458, Dec. 5, 1977; 47 FR 57714, Dec. meets the requirements of § 205.54–2.
28, 1982] (2) A sound level calibrator. The cali-
brator shall produce a sound pressure
§ 205.52 Vehicle noise emission stand- level, at the microphone diaphragm,
ards. that is known to within an accuracy of
(a) Low Speed Noise Emission Standard. ±0.5 dB. The calibrator shall be checked
Vehicles which are manufactured after annually to verify that its output has
the following effective dates shall be not changed.
designed, built and equipped so that (3) An engine-speed tachometer
they will not produce sound emissions which is accurate within ±2 percent of
in excess of the levels indicated. meter reading.
(4) An anemometer or other device
Effective date Level for measurement of ambient wind
(i) January 1, 1979 ............................................ 83 dBA. speed accurate within ±10 percent.
(ii) January 1, 1988 ........................................... 80 dBA. (5) A thermometer for measurement
of ambient temperature accurate with-
(b) The standards set forth in para- in ±1 C.
graph (a) of this section refer to the (6) A barometer for measurement of
sound emissions as measured in accord- ambient pressure accurate within ±1
ance with the procedures prescribed in percent.
§ 205.54–1,2. (b)(1) The test site shall be such that
(c) Every manufacturer of a new the truck radiates sound into a free
motor vehicle subject to the standards field over a reflecting plane. This con-
prescribed in this paragraph shall, dition may be considered fulfilled if the
prior to taking any of the actions spec- test site consists of an open space free
112
of large reflecting surfaces, such as let is more than 200 inches (5.1 meters),
parked vehicles, signboards, buildings tests shall be run using both the front
or hillsides, located within 100 feet (30.4 and rear of the vehicle as reference
meters) of either the vehicle path or points.
the microphone. (ii) If the engine is located rearward
(2) The microphone shall be located to the center of the chassis, the rear of
50 feet ±4 in. (15.2 ±0.1 meter) from the the vehicle shall be used as the ref-
centerline of truck travel and 4 feet ±4 erence point.
in. (1.2 ±0.1 meters) above the ground
(8) The plane containing the vehicle
plane. The microphone point is defined
path and the microphone location
as the point of intersection of the vehi-
cle path and the normal to the vehicle (plane ABCDE in Figure 1) shall be flat
path drawn from the microphone. The within ±2 inches (.05 meters).
microphone shall be oriented in a fixed (9) Measurements shall not be made
position to minimize the deviation when the road surface is wet, covered
from the flattest system response over with snow, or during precipitation.
the frequency range 100 Hz to 10 kHz (10) Bystanders have an appreciable
for a vehicle traversing from the accel- influence on sound level meter read-
eration point through the end zone. ings when they are in the vicinity of
The microphone shall be oriented with the vehicle or microphone; therefore
respect to the source so that the sound not more than one person, other than
strikes the diaphragm at the angle for the observer reading the meter, shall
which the microphone was calibrated be within 50 feet (15.2 meters) of the ve-
to have the flattest frequency response hicle path or instrument and the per-
characteristic over the frequency range son shall be directly behind the ob-
100 Hz to 10 kHz. server reading the meter, on a line
(3) An acceleration point shall be es- through the microphone and observer.
tablished on the vehicle path 50 feet (15 To minimize the effect of the observer
m) before the microphone point. and the container of the sound level
(4) An end point shall be established meter electronics on the measure-
on the vehicle path 100 feet (30 m) from ments, cable should be used between
the acceleration point and 50 feet (15 the microphone and the sound level
m) from the microphone point. meter. No observer shall be located
(5) The end zone is the last 40 feet (12 within 1 m in any direction of the
m) of vehicle path prior to the end
microphone location.
point.
(6) The measurement area shall be (11) The maximum A-weighted fast
the triangular paved (concrete or response sound level observed at the
sealed asphalt) area formed by the ac- test site immediately before and after
celeration point, the end point, and the the test shall be at least 10 dB below
microphone location. the regulated level.
(7) The reference point on the vehi- (12) The road surface within the test
cle, to indicate when the vehicle is at site upon which the vehicle travels,
any of the points on the vehicle path, and, at a minimum, the measurements
shall be the front of the vehicle except area (BCD in figure 205.1) shall be
as follows: smooth concrete or smooth sealed as-
(i) If the horizontal distance from the phalt, free of extraneous material such
front of the vehicle to the exhaust out- as gravel.
113
§ 205.54–1 40 CFR Ch. I (7–1–21 Edition)
(13) Vehicles with diesel engines shall at wide-open throttle the vehicle will
be tested using Number 1D or Number accelerate from the acceleration point.
2D diesel fuel possessing a cetane rat- (a) Starting at no more than two-
ing from 42 to 50 inclusive. thirds (66 percent) of maximum rated
(14) Vehicles with gasoline engines or of governed engine speed.
shall use the grade of gasoline rec- (b) Reaching maximum rated or gov-
ommended by the manufacturer for use erned engine speed within the end zone.
by the purchaser. (c) Without exceeding 35 mph (56 k/h)
(15) Vehicles equipped with thermo- before reaching the end point.
statically controlled radiator fans may (1) Should maximum rated or gov-
be tested with the fan not operating. erned rpm be attained before reaching
(c) Procedures—(1) Vehicle operation the end zone, decrease the approach
for vehicles with standard transmissions. rpm in 100 rpm increments until max-
Full throttle acceleration and closed imum rated or governed rpm is at-
throttle deceleration tests are to be tained within the end zone.
used. A beginning engine speed and (2) Should maximum rated or gov-
proper gear ratio must be determined erned rpm not be attained until beyond
for use during measurements. Closed the end zone, select the next lower gear
throttle deceleration tests are required until maximum rated or governed rpm
only for those vehicles equipped with is attained within the end zone.
an engine brake. (3) Should the lowest gear still result
(i) Select the highest rear axle and/or in reaching maximum rated or gov-
transmission gear (‘‘highest gear’’ is erned rpm beyond the permissible end
used in the usual sense; it is synony- zone, unload the vehicle and/or in-
mous to the lowest numerical ratio) crease the approach rpm in 100 rpm in-
and an initial vehicle speed such that crements until the maximum rated or
114
EC01FE92.052</MATH>
governed rpm is reached within the end thirds of maximum rated or of full load
zone. governed engine speed.
(ii) For the acceleration test, ap- (4) Should the maximum rated or
proach the acceleration point using the governed rpm still be attained before
engine speed and gear ratio selected in entering the end zone, and the engine
paragraph (c)(1) of this section and at rpm during approach cannot be further
the acceleration point rapidly establish lowered, begin acceleration at a point
wide-open throttle. The vehicle ref- 10 feet closer to the beginning of the
erence shall be as indicated in para- end zone. The approach rpm to be used
graph (b)(7) of this section. Accelera- is to be that rpm used prior to the
tion shall continue until maximum moving of the acceleration point 10
rated or governed engine speed is feet closer to the beginning of the end
reached. zone.
(iii) Wheel slip which affects max- (5) Should the maximum rated or
imum sound level must be avoided. governed rpm still be attained before
(2) Vehicle operation for vehicles with entering the end zone, repeat the in-
automatic transmissions. Full throttle structions in paragraph (c)(2)(i)(c)(4) of
acceleration and closed throttle decel- this section until maximum rated or
eration tests are to be used. Closed governed rpm is attained within the
throttle deceleration tests are required end zone.
only for those vehicles equipped with (ii) For the acceleration test, ap-
an engine brake. proach the acceleration point using the
(i) Select the highest gear axle and/or engine speed and gear ratio selected in
transmission gear (highest gear is used paragraph (c)(2)(i) of this section and
in the usual sense; it is synonymous to at the acceleration point rapidly estab-
the lowest numerical ratio) in which no lish wide-open throttle. The vehicle
up or down shifting will occur under reference shall be as indicated in para-
any operational conditions of the vehi- graph (b)(7) of this section. Accelera-
cle during the test run. Also, select an tion shall continue until maximum
initial vehicle speed such that at wide- rated or governed engine speed is
open throttle the vehicle will accel- reached.
erate from the acceleration point. (iii) Wheel slip which affects max-
(a) Starting at two-thirds (66 percent) imum sound level must be avoided.
of maximum rated or of governed en- (3) Measurements. (i) The meter shall
gine speed. be set for ‘‘fast response’’ and the A-
(b) Reaching maximum rated or gov- weighted network.
erned engine speed within the end zone. (ii) The meter shall be observed dur-
(c) Without exceeding 35 mph (56 k/h) ing the period while the vehicle is ac-
before reaching the end point. celerating or decelerating. The applica-
(1) Should maximum rated or gov- ble reading shall be the highest sound
erned rpm be attained before reaching level obtained for the run. The observer
the end zone, decrease the approach is cautioned to rerun the test if unre-
rpm in 100 rpm increments until max- lated peaks should occur due to extra-
imum rated or governed rpm is at- neous ambient noises. Readings shall
tained within the end zone. be taken on both sides of the vehicle.
(2) Should maximum rated or gov- (iii) The sound level associated with
erned rpm not be attained until beyond a side shall be the average of the first
the end zone, select the next lower gear two pass-by measurements for that
until maximum rated or governed rpm side, if they are within 2 dB(A) of each
is attained within the end zone. other. Average of measurements on
(3) Should the lowest gear still result each side shall be computed separately.
in reaching maximum rated or gov- If the first two measurements for a
erned rpm beyond the permissible end given side differ by more than 2 dB(A),
zone, unload the vehicle and/or in- two additional measurements shall be
crease the approach rpm in 100 rpm in- made on each side, and the average of
crements until the maximum rated or the two highest measurements on each
governed rpm is reached within the end side, within 2 dB(A) of each other, shall
zone, notwithstanding that approach be taken as the measured vehicle sound
engine speed may now exceed two- level for that side. The reported vehicle
115
§ 205.54–2 40 CFR Ch. I (7–1–21 Edition)
sound level shall be the higher of the maintain the engine temperatures
two averages. within such normal operating range.
(d) General requirements. (1) Measure- [41 FR 15544, Apr. 13, 1976, as amended at 42
ments shall be made only when wind FR 11836, Mar. 1, 1977; 42 FR 61456, Dec. 5,
velocity is below 12 mph (19 km/hr). 1977]
(2) Proper usage of all test instru-
mentation is essential to obtain valid § 205.54–2 Sound data acquisition sys-
tem.
measurements. Operating manuals or
other literature furnished by the in- (a) Systems employing tape recorders
strument manufacturer shall be re- and graphic level recorders may be es-
ferred to for both recommended oper- tablished as equivalent to a Type I—
ation of the instrument and pre- ANSI S1.4–1971 sound level meter for
cautions to be observed. Specific items use in determining compliance with
this regulation by meeting the require-
to be adequately considered are:
ments of this section (§ 205.54–2(b)).
(i) The effects of ambient weather This sound data acquisition system
conditions on the performance of the qualification procedure is based pri-
instruments (for example, tempera- marily on ANSI S6.1–1973.
ture, humidity, and barometric pres- (1) Performance requirements—(i) Sys-
sure). tem frequency response. It is required
(ii) Proper signal levels, terminating that the overall steady-state frequency
impedances, and cable lengths on response of the data acquisition system
multi-instrument measurement sys- shall be within the tolerances pre-
tems. scribed in Table 205.1 when measured in
(iii) Proper acoustical calibration accordance with section (2). The toler-
procedure to include the influence of ances in Table 205.1 are applicable to
extension cables, etc. Field calibration either flat or A-weighted response. (See
shall be made immediately before and paragraph (a)(3)(iii) of this section.)
after each test sequence. Internal cali- (ii) Detector response. To ensure that a
bration means is acceptable for field (true) rms indication is provided, the
use, provided that external calibration difference between the level indicated
is accomplished immediately before or for a 1000 Hz sinusoidal signal equiva-
after field use. lent to a sound level of 86 dB (rms) and
the level indicated for an octave band
(3)(i) A complete calibration of the
of random noise of equal energy as the
instrumentation and external acous- sinusoidal signal centered at 1000 Hz
tical calibrator over the entire fre- shall be no greater than 0.5 dB. A true
quency range of interest shall be per- rms voltmeter shall be used to deter-
formed at least annually and as fre- mine equivalence of two input signals.
quently as necessary during the yearly (iii) Indicating meter. If an indicating
period to insure compliance with the meter is used to obtain sound levels or
standards cited in American National band pressure levels, it must meet the
Standard S1.4–1971 ‘‘Specifications for requirements of paragraphs (a)(1)(ii)
Sound Level Meters’’ for a Type 1 in- and (vi)(B) of this section and the
strument over the frequency range 50 following.
Hz–10,000 Hz.
(ii) If calibration devices are utilized TABLE 205.1—SYSTEM RESPONSE DATA
which are not independent of ambient A-weighted Tolerance (decibels)
pressure (e.g., a piston-phone) correc- response
Freq. (hertz) (Re-1000 Hz,
tions must be made for barometric or Plus— Minus—
dB)
altimetric changes according to the
31.5 ¥39.4 1.5 1.5
recommendation of the instrument 40.0 ¥34.6 1.5 1.5
manufacturer. 50.0 ¥30.2 1.0 1.0
(4) The truck shall be brought to a 63.0 ¥26.2 1.0 1.0
80.0 ¥22.5 1.0 1.0
temperature within its normal oper- 100.0 ¥19.1 1.0 1.0
ating temperature range prior to com- 125.0 ¥16.1 1.0 1.0

160.0 ¥13.4 1.0 1.0
mencement of testing. During testing 200.0 ¥10.9 1.0 1.0
appropriate caution shall be taken to 250.0 ¥8.6 1.0 1.0
116
TABLE 205.1—SYSTEM RESPONSE DATA— ance required will also meet other min-
Continued imum requirements for distortion, sig-
nal-to-noise ratio, etc.
A-weighted Tolerance (decibels)
response (vi) Graphic level recorder dynamic re-
Freq. (hertz) (Re-1000 Hz, Plus— Minus— sponse. When using a graphic level re-
dB)
corder, it is necessary to select pen re-
315.0 ¥6.6 1.0 1.0 sponse settings such that the readings
400.0 ¥4.8 1.0 1.0 obtained are statistically equivalent to
500.0 ¥3.2 1.0 1.0
630.0 ¥1.9 1.0 1.0 those obtained by directly reading a
800.0 ¥.8 1.0 1.0 meter which meets the ‘‘fast’’ dynamic
1,000.0 0 1.0 1.0 requirement of a precision sound level
1,250.0 .6 1.0 1.0
1,600.0 1.0 1.0 1.0 meter indicating meter system for the
2,000.0 1.2 1.0 1.0 range of vehicles to be tested. To en-
2,500.0 1.3 1.0 1.0 sure statistical equivalence, at least 30
3,150.0 1.2 1.0 1.0
4,000.0 1.0 1.0 1.0
comparative observations of real test
5,000.0 .5 1.5 2.0 data shall be made and the average of
6,300.0 ¥.1 1.5 2.0 the absolute value of the differences
8,000.0 ¥1.1 1.5 3.0
10,000.0 ¥2.5 2.0 4.0
observed shall be less than 0.5 dB. The
12,500.0 ¥4.3 3.0 6.0 settings described in this paragraph
likely assure appropriate dynamic re-
(A) The scale shall be graduated in 1 sponse; however, different settings may
dB steps. be selected on the basis of the above re-
(B) No scale indication shall be more quirement.
than 0.2 dB different from the true (A) Use a pen writing speed of nomi-
value of the signal when an input sig- nally 60–100 dB/sec. If adjustable, low
nal equivalent to 86 dB sound level in- frequency response should be limited to
dicates correctly. about 20 Hz.
(C) Maximum indication for an input (B) Indicated overshoot for a sud-
signal of 1000 Hz tone burst of 0.2 sec denly applied 1000 Hz sinusoidal signal
duration shall be within the range of equivalent to 86 dB sound level shall be
¥2 to 0 dB with respect to the steady- no more than 1.1 dB and no less than
state indication for a 1000 Hz tone 0.1 dB.
equivalent to 86 dB sound level. (2) Frequency response qualification
(iv) Microphone. If microphone is used procedure. (i) Typical noise measure-
which has not been provided as a comment and analysis configurations are
ponent of a precision sound level shown in Figures 205.2 through 205.4.
meter, it must be determined to meet The qualification procedure described
the microphone characteristics de- herein duplicates these configurations,
scribed in IEC Publication 179, Preci- but with the microphone replaced by
sion Sound Level Meters. an electronic sinewave oscillator. Cau-
(v) Magnetic tape recorders. No re- tion should be exercised when con-
quirements are described in this docu- necting an oscillator to the input of a
ment pertaining to tape recorders, ex- sound level meter to ensure, perhaps by
cept for frequency response. Generally, using a resistive voltage divider net-
recorders of adequate quality to pro- work, that the input is not overloaded
vide the frequency response perform- (see § 205.54–2(a)(2)(ii)).
117
§ 205.54–2 40 CFR Ch. I (7–1–21 Edition)
(ii) Calibrate the oscillator to be used quencies listed in Table 205.1 using an
by measuring its output relative to the electronic voltmeter of known calibra-
voltage which is equivalent to 86 dB tion. Record the result in voltage level

sound level at each of the 27 fre- in dB re voltage corresponding to 86 dB
118
EC01FE92.053</MATH>
sound level at 1000 Hz. This will de- maximum deviation expected from
scribe the frequency response charac- ‘‘typical’’ including calibration toler-
teristics of the oscillator. ances. Use the microphone response
(iii) If a graphic level recorder is to curve which corresponds to the manner
be used, connect it to the oscillator in which it is used in the field. It may
output. If the oscillator and graphic be required to add a correction to the
level recorder can be synchronized, response curves provided to obtain field
slowly sweep the frequency over the response; refer to the manufacturer’s
range of 31.5 to 12,500 Hz, recording the manual.
oscillator output. If they cannot be (vii) Adjustment or repair of equip-
synchronized, record oscillator output ment may be required to obtain re-
for signals at the 27 frequencies given sponse within the requirements of
in Table 205.1. The differences between paragraph (a) of this section. After any
the combined response thus obtained adjustments, the system shall be re-
and the oscillator response obtained qualified according to paragraph (b) of
previously will describe the frequency this section.
response of the graphic level recorder. (3) General comments. (i) Calibrate
(iv) If visual observation of an indi- tape recorders using the brand and
cating meter is to be used for obtaining type of magnetic tape used for actual
data, the oscillator should be con- data acquisition. Differences in tape
nected to the indicating meter input can cause an appreciable variation in
(such as the microphone input of a the recorder/reproduce frequency re-
sound level meter) and the meter read- sponse characteristics of tape recorder.
ing observed for a fixed oscillator out- (ii) It shall be ensured that the in-
put voltage setting for signals at the 27 strumentation used will perform with-
frequencies given in Table 205.1. in specifications and applicable toler-
(v) To check a tape recorder, connect ances over the temperature, humidity,
the instruments as shown in Figure and other environmental variation
205.4. Using a 1000 Hz tone, adjust the ranges which may be encountered in
oscillator output level to obtain a read- vehicle noise measurement works.
ing 15 dB below maximum record level. (iii) Qualification tests shall be per-
If the synchronized oscillator/graphic formed using equipment (including ca-
level recorder system is to be used for bles) and recording and playback tech-
analysis, record an oscillator sweep niques identical with those used while
over the range of 31.5 to 12,500 Hz, using recording vehicle noise. For example, if
an appropriate tape recorder input at- weighted sound level data are normally
tenuator setting. Alternatively, tape- recorded use similar weighting and
record frequency tones at the 27 fre- apply the tolerances of Table 205.1 to
quencies given in Table 205.1. Replay the weighting curve for comparison
the tape recordings using the setup with record-playback curves. Pre-
shown in Figure 205.3. Record the data cautions should also be taken to ensure
on a graphic level recorder or through that source and load impedances are
visual observation of the indicating appropriate to the device being tested.
meter. Subtract the oscillator fre- Other data acquisition systems may
quency response in paragraph (b)(2) of use any combination of microphones,
this section from the response obtained sound level meters, amplifiers, tape re-
through the record-playback sequence corders, graphic level recorders, or in-
to obtain the record/reproduce fre- dicating meters. The same approach to
quency response of the system except qualifying such a system shall be taken
for the microphone. as described in this document for the
(vi) To obtain the overall system fre- systems depicted in Figures 205.2, 205.3
quency response, add the manufactur- and 205.4.
er’s microphone calibration data to the (b) Systems other than those speci-
response just obtained. This may be fied in §§ 205.54–1(a) and 205.54–2(a) may
the frequency response for the specific be used for establishing compliance
microphone to be used, including cali- with this regulation. In each case the
bration tolerances. Alternatively, use system must yield sound levels which
the manufacturer’s ‘‘typical’’ micro- are equivalent to those produced by a
phone response plus and minus the sound level meter Type 1 ANSI S1.4–
119
§ 205.55 40 CFR Ch. I (7–1–21 Edition)
1971. The manufacturer bears the bur- to each vehicle configuration consist
den of demonstrating such equivalence. of:
(1) Testing in accordance with § 205.54
FR 61456, Dec. 5, 1977; 47 FR 57714, Dec. 28, of a vehicle selected in accordance with
1982] § 205.57–2, and
(2) Compliance of the test vehicle
§ 205.55 Requirements. with the applicable standard when test-
ed in accordance with § 205.54.
§ 205.55–1 General requirements. (c)(1) In lieu of testing vehicles of
(a) Every new vehicle manufactured every configuration as described in
for distribution in commerce in the paragraph (b) of this section, the man-
United States which is subject to the ufacturer may elect to verify the con-
standards prescribed in this subpart figuration based on representative test-
and not exempted in accordance with ing, the requirements of which consist
§ 205.5: of:
(1) Shall be labeled in accordance (i) Grouping configurations into a
with the requirements of § 205.55–5 of category where each category will be
this subpart. determined by a separate combination
(2) Shall conform to the applicable of at least the following parameters (a
noise emission standard established in manufacturer may use more param-
§ 205.52 of this regulation. eters):
(b) The requirements of paragraph (a) (a) Engine type.
apply to new products which conform (1) Gasoline—two stroke cycle.
to the definition of vehicles in these (2) Gasoline—four stroke cycle.
regulations and at the time such new (3) Diesel—two stroke cycle.
products are assembled to that state of (4) Diesel—four stroke cycle.
completeness in which the manufac- (5) Rotary—wankel.
turer distributes them in commerce. (6) Turbine.
(c) Subsequent manufacturers of a (7) Other.
new product which conforms to the def- (b) Engine manufacturer.
inition of vehicle in these regulations (c) Engine displacement.
when received by them from a prior (d) Engine configuration (e.g., L–6, V–
manufacturer, need not fulfill the re- 8, etc.).
quirements of paragraph (a)(1) where (e) Series (i.e., cab design) including
such requirements have already been but not limited to conventional, cab
complied with by a prior manufacturer. over engine, and cab forward.
[41 FR 15544, Apr. 13, 1976, as amended at 42 (ii) Identifying the configuration
FR 61456, Dec. 5, 1977; 47 FR 57714, Dec. 28, within each category which emits the
1982] highest sound pressure level (dBA)
based on his best technical judgment
§ 205.55–2 Compliance with standards. and/or emission test data;
(a)(1) Prior to distribution in com- (iii) Testing in accordance with
merce of vehicles of a specific configu- § 205.54 of a vehicle selected in accord-
ration, the first manufactures of such ance with § 205.57–2 which must be a ve-
vehicles must verify such configura- hicle of the configuration which is
tions in accordance with the require- identified pursuant to paragraph
ments of this subpart. (c)(1)(ii) of this section as having the
(2) [Reserved] highest sound pressure level (estimated
(3) At any time following receipt of or actual) within the category; and
notice under this section with respect (iv) Compliance of the test vehicle
to a configuration, the Administrator with applicable standards when tested
may require that the manufacturer in accordance with § 205.54.
ship test vehicles to the EPA test facil- (2) Where the requirements of para-
ity in order for the Administrator to graph (c)(1) are complied with, all
perform the tests required for produc- those configurations contained within
tion verification. a category are considered represented
(b) The requirements for purposes of by the tested vehicle.

testing by the Administrator and selec- (3) Where the manufacturer tests a
tive enforcement auditing with regard vehicle configuration which has not
120
been determined as having the highest (4) Engine manufacturer’s horsepower

sound pressure level of a category, but rating.
all other requirements of paragraph (5) Cab characteristic. (i) Sleeper.
(c)(1) of this section are complied with (ii) Non sleeper.
all those configurations contained with (6) Category parameters listed in
that category which are determined to § 205.55–2.
have sound pressure levels no greater
than the tested vehicle are considered § 205.55–4 Labeling-compliance.
to be represented by the tested vehicle, (a)(1) The manufacturer of any vehi-
however, a manufacturer must for pur- cle subject to the provisions of § 205.52
poses of Testing by the Administrator shall, at the time of manufacture, affix
and Selective Enforcement Auditing a permanent, legible label, of the type
verify according to the requirements of and in the manner described below,
paragraphs (b)(1) and/or (c)(1) of this containing the information hereinafter
section any configurations in the sub- provided, to all such vehicles to be dis-
ject category which have a higher tributed in commerce. The labels shall
sound pressure level than the vehicle be affixed in such a manner that they
configuration tested. cannot be removed without destroying
(d) [Reserved] or defacing them, and shall not be af-
(e) The manufacturer may, at his op- fixed to any equipment which is easily
tion, proceed with any of the following detached from such vehicle.
alternatives with respect to any vehi- (2) A label shall be permanently at-
cle determined not in compliance with tached, in a readily visible position, in
applicable standards. the operator’s compartment.
(1) In the case of representative test- (3) Labels for vehicles not manufac-
ing a new test vehicle from another tured solely for use outside the United
configuration must be selected accord- States shall contain the following in-
ing to the requirements of paragraph formation lettered in the English lan-
(c) of this section, in order to verify guage in block letters and numerals,
the configurations represented by the which shall be of a color that contrasts
non-compliant vehicle. with the background of the label:
(2) Modify the test vehicle and dem- (i) The label heading: Vehicle Noise
onstrate by testing that it meets appli- Emission Control Information;
cable standards. The manufacturer (ii) Full corporate name and trade-
must modify all production vehicles of mark of manufacturer;
the same configuration in the same (iii) Month and year of manufacture;
manner as the test vehicle before dis- (iv) The statement:
tribution into commerce.
This Vehicle Conforms to U.S. EPA Regu-
[41 FR 15544, Apr. 13, 1976, as amended at 42 lations for Noise Emission Applicable to Me-
FR 61458, Dec. 5, 1977; 47 FR 57714, Dec. 28, dium and Heavy Trucks.
1982; 48 FR 27040, June 13, 1983]
The following acts or the causing thereof
by any person are prohibited by the Noise
§ 205.55–3 Configuration identification. Control Act of 1972:
(a) A separate vehicle configuration (A) The removal or rendering inoperative,
shall be determined by each combina- other than for purposes of maintenance, re-
tion of the following parameters: pair, or replacement, of any noise control de-
(1) Exhaust system configuration. (i) vice or element of design (listed in the own-
er’s manual) incorporated into this vehicle
Single vertical.
in compliance with the Noise Control Act;
(ii) Dual vertical. (B) The use of this vehicle after such de-
(iii) Single horizontal. vice or element of design has been removed
(iv) Dual horizontal. or rendered inoperative.
(2) Air induction system (engine). (i)
Natural. (b) Labels for vehicles manufactured
(ii) Turbocharged. solely for use outside the United States
(3) Fan. (i) Diameter. shall contain the words ‘‘For Export
(ii) Drive. Only.’’
(a) Direct. [41 FR 15544, Apr. 13, 1976, as amended at 42

(b) Thermostatic. FR 61456, 61458, Dec. 5, 1977. Redesignated at
(iii) Max fan rpm. 47 FR 57715, Dec. 28, 1982]
121
§ 205.55–5 40 CFR Ch. I (7–1–21 Edition)
§ 205.55–5 Labeling-exterior. [Re- was in conformance. Such notice will

served] not take effect until 15 days after re-
ceipt by the manufacturer, or if a hear-
§ 205.56 Testing by the Administrator. ing is requested under this paragraph,
(a)(1) The Administrator may require until adjudication by the hearing ex-
that any vehicles to be tested pursuant aminer.
to the Act be submitted to him, at such (3) After any notification issued
place and time as he may reasonably under paragraph (b)(1) of this section
designate and in such quantity and for has taken effect, no data thereafter de-
such time as he may reasonably re- rived from such test facility will be ac-
quire for the purpose of conducting ceptable for purposes of this part.
tests in accordance with test proce- (4) The manufacturer may request in
dures described in § 205.54 to determine writing that the Administrator recon-
whether such vehicles or a manufactur- sider his determination under para-
er’s test facility conform to applicable graph (b)(1) of this section based on
regulations. It is a condition of the re- data or information which indicates
quirements under this section that the that changes have been made to the
manner in which the Administrator test facility and such changes have re-
conducts such tests, the EPA test facil- solved the reasons for disqualification.
ity itself, and the test procedures he (5) The Administrator will notify the
employs shall be based upon good engi- manufacturer of his determination and
neering practice and meet or exceed an explanation of the reasons
the requirements of § 205.54 of the regu- underlying it with regard to the re-
lations. qualification of the test facility within
(2) The Administrator may specify
10 working days after receipt of the
that he will conduct such testing at
manufacturer’s request for reconsidera-
the manufacturer’s facility, in which
tion pursuant to paragraph (b)(4) of
case instrumentation and equipment of
this section.
the type required by these regulations
shall be made available by the manu- (c)(1) The Administrator will assume
facturer for test operations. The Ad- all reasonable costs associated with
ministrator may conduct such tests shipment of vehicles to the place des-
with his own equipment, which shall ignated pursuant to paragraph (a) of
equal or exceed the performance speci- this section except with respect to:
fications of the instrumentation or (i) [Reserved]
equipment specified by the Adminis- (ii) Testing of a reasonable number of
trator in these regulations. vehicles for purposes of selective en-
(3) The manufacturer may observe forcement auditing under § 205.57 or
tests conducted by the Administrator testing of smaller numbers of vehicles,
pursuant to this section on vehicles if the manufacturer has failed to estab-
produced by such manufacturer and lish that there is a correlation between
may copy the data accumulated from its test facility and the EPA test facil-
such tests. The manufacturer may in- ity or the Administrator has reason to
spect any such vehicles before and believe, and provides the manufacturer
after testing by the Administrator. a statement of such reasons, that the
(b)(1) If, based on tests conducted by vehicles to be tested would fail to meet
the Administrator or other relevant in- the standard prescribed in this subpart
formation, the Administrator deter- if tested at the EPA test facility, but
mines that the test facility does not would meet such standard if tested at
meet the requirements of § 205.54–1 (a) the manufacturer’s test facility;
and (b) he will notify the manufacturer (iii) Any testing performed during a
in writing of his determination and the period when a notice of nonconfor-
reasons therefor. mance of the manufacturer’s test facil-
(2) The manufacturer may at any ity issued pursuant to paragraph (b) of
time within 15 days after receipt of a this section is in effect;
notice issued under paragraph (b)(1) of (iv) Any testing performed at place
this section request a hearing con- other than the manufacturer’s facility
ducted in accordance with 5 U.S.C. 554 as a result of the manufacturer’s fail-
on the issue of whether his test facility ure to permit the Administrator to
122
conduct or monitor testing as required plant or storage facility from which

by this part. the vehicles must be selected, the time
at which a vehicle must be selected.
FR 61456, 61459, Dec. 5, 1977; 47 FR 57715, Dec. The test request will also provide for
28, 1982] situations in which the selected con-
figuration or category is unavailable
§ 205.57 Selective enforcement audit- for testing. The test request may in-
ing requirements. clude an alternative category or con-
figuration selected for testing in the
§ 205.57–1 Test request. event that vehicles of the first speci-
(a) The Administrator will request fied category or configuration are not
all testing under § 205.57 by means of a available for testing because the vehi-
test request addressed to the manufac- cles are not being manufactured at the
turer. specified plant and/or are not being
(1) Except as provided in paragraphs manufactured during the specified time
(a) (2) and (3) of this section, the Ad- or not being stored at the specified
ministrator will not issue to a manu- plant or storage facility.
facturer during any model year more (d) Any manufacturer shall, upon re-
test requests than a number deter- ceipt of the test request, select and
mined by dividing the total number of test a batch sample of vehicles from
vehicles subject to this regulation two consecutively produced batches of
which the manufacturer projects he the vehicle category or configurations
will produce during that model year by specified in the test request in accord-
25,000 and rounding to the next higher ance with these regulations and the
whole number: Except, that the Admin- conditions specified in the test request.
istrator may issue one additional test (e)(1) Any testing conducted by the
request beyond the annual limit to any manufacturer pursuant to a test re-
manufacturer for each time a batch se- quest shall be initiated within such pe-
quence for any category, configuration riod as is specified within the test re-
or subgroup thereof of such manufac- quest: Except, that such initiation may
turer’s production is rejected in ac- be delayed for increments of 24 hours
cordance with § 205.57–7. or one business day where ambient test
(2) Any test request issued against a site weather conditions, or other condi-
category, configuration or subgroup tions beyond the control of the manu-
thereof which the Administrator has facturer, in any 24-hour period do not
reason to believe does not meet the permit testing: Provided, That these
standards specified in § 205.52 will not conditions for that period are recorded.
be counted against the annual limit on (2) The manufacturer shall complete
test requests described in paragraph emission testing on a minimum of five
(a)(1) of this section. Any such request vehicles per day unless otherwise pro-
shall include a statement of the Ad- vided for by the Administrator or un-
ministrator’s reason for such belief. less ambient test site conditions only
(3) Any test request under which test- permit the testing of a lesser number:
ing is not completed will not be count- Provided, that ambient test site weath-
ed against the annual limit on test re- er conditions for that period are re-
quests described in paragraph (a)(1) of corded.
this section. (3) The manufacturer will be allowed
(b) The test request will be signed by 24 hours to ship vehicles from a batch
the Assistant Administrator for En- sample from the assembly plant to the
forcement or his designee. The test re- testing facility if the facility is not lo-
quest will be delivered by an EPA En- cated at the plant or in close proximity
forcement Officer to the plant manager to the plant: Except, that the Adminis-
or other responsible official as des- trator may approve more time based
ignated by the manufacturer. upon a request by the manufacturer
(c) The test request will specify the accompanied by a satisfactory justifi-
vehicle category, configuration or sub- cation.
group thereof selected for testing, the (f) The Administrator may issue an
batch from which sampling is to begin, order to the manufacturer to cease to
the batch size, the manufacturer’s distribute into commerce vehicles of a
123
§ 205.57–2 40 CFR Ch. I (7–1–21 Edition)
specified category or configuration ministrator in the test request. An al-

being manufactured at a particular fa- ternative random selection plan may
cility if: be used by a manufacturer: Provided,
(1) The manufacturer refuses to com- That such a plan is approved by the
ply with the provisions of a test re- Administrator. If the test request does
quest issued by the Administrator pur- not specify that test vehicles must be
suant to this section; or randomly selected, the manufacturer
(2) The manufacturer refuses to com- shall select test vehicles consecutively.
ply with any of the requirements of (1) Should a situation arise in which
this section. the configuration to be tested consists
(g) A cease-to-distribute order shall of only vehicles with automatic trans-
not be issued under paragraph (f) of missions, they shall be tested in ac-
this section if such refusal is caused by cordance with § 205.54–1(c)(2).
conditions and circumstances outside (2) If the configuration to be tested
the control of the manufacturer which consists of both automatic trans-
renders it impossible to comply with mission and standard transmission ve-
the provisions of a test request or any hicles, the test vehicle shall be a stand-
other requirements of this section. ard transmission vehicle unless the
Such conditions and circumstances manufacturer has reason to believe
shall include, but are not limited to, that the automatic transmission vehi-
any uncontrollable factors which result cle emits a greater sound level.
in the temporary unavailability of (b) The Acceptable Quality Level is
equipment and personnel needed to 10 percent. The appropriate sampling
conduct the required tests, such as plans associated with the designated
equipment break-down or failure or ill- AQL are contained in Appendix I, Table
ness of personnel, but shall not include II.
failure of the manufacturer to ade- (c) The appropriate batch sample size
quately plan for and provide the equip- will be determined by reference to Ap-
ment and personnel needed to conduct pendix I, Table I and II. A code letter is
the tests. The manufacturer will bear obtained from Table I based on the
the burden of establishing the presence batch size designated by the Adminis-
of the conditions and circumstances re- trator in a test request. The batch
quired by this paragraph. sample size will be obtained from Table
(h) Any such order shall be issued II. The batch sample size will be equal
only after a notice and opportunity for to the maximum cumulative sample
a hearing. size for the appropriate code letter ob-
[41 FR 15544, Apr. 13, 1976, as amended at 42 tained from Table I plus an additional
FR 61459, Dec. 5, 1977; 43 FR 12326, Mar. 24, 10 percent rounded off to the next high-
1978] est number.
(d) If the test request specifies that
§ 205.57–2 Test vehicle sample selec- vehicles comprising the batch sample
tion. must be selected randomly, individual
(a) Vehicles comprising the batch vehicles comprising the test sample
sample which are required to be tested will be randomly selected from the
pursuant to a test request in accord- batch sample using the same random
ance with this subpart will be selected selection plan as in paragraph (a) of
in the manner specified in the test re- this section. Test sample size will be
quest from a batch of vehicles of the determined by entering Table II.
category or configuration specified in (e) The test vehicle of the category,
the test request. If the test request configuration or subgroup thereof se-
specifies that the vehicles comprising lected for testing shall have been as-
the batch sample must be selected ran- sembled by the manufacturer for dis-
domly, the random selection will be tribution in commerce using the manu-
achieved by sequentially numbering all facturer’s normal production process in
of the vehicles in the batch and then accordance with § 205.55–5(a).
using a table of random numbers to se- (f) Unless otherwise indicated in the
lect the number of vehicles as specified test request, the manufacturer will se-
in paragraph (c) of this section based lect the batch sample from the produc-
on the batch size designated by the Ad- tion batch, next scheduled after receipt
124
of the test request, of the category or cle, as determined by measurement

configuration specified in the test re- methodology.
quest. (c) In the event of vehicle malfunc-
(g) Unless otherwise indicated in the tion (i.e., failure to start, misfiring cyl-
test request, the manufacturer shall se- inder, etc.) the manufacturer may per-
lect the vehicles designated in the test form the maintenance that is nec-
request for testing. essary to enable the vehicle to operate
(h) At their discretion, EPA Enforce- in a normal manner.
ment Officers, rather than the manu- (d) No quality control, testing, as-
facturer, may select the vehicles des- sembly or selection procedures shall be
ignated in the test request. used on the completed vehicle or any
(i) The manufacturer will keep on portion thereof, including parts and
hand all vehicles in the batch sample subassemblies, that will not normally
until such time as the batch is accept- be used during the production and as-
ed or rejected in accordance with sembly of all other vehicles of the cat-
§ 205.57–6: Except, that vehicles actu- egory which will be distributed in com-
ally tested and found to be in conform- merce, unless such procedures are re-
ance with these regulations need not be quired or permitted under this subpart.
kept. [47 FR 57715, Dec. 28, 1982; 48 FR 27039, June
[41 FR 15544, Apr. 13, 1976, as amended at 42 13, 1983]
FR 61459, Dec. 5, 1977; 47 FR 57715, Dec. 28,
1982; 48 FR 27039, June 13, 1983] § 205.57–4 Testing procedures.
(a) The manufacturer shall conduct
§ 205.57–3 Test vehicle preparation. one valid test in accordance with the
(a) Prior to the official test, the test test procedures specified in § 205.54 of
vehicle selected in accordance with this subpart for each vehicle selected
§ 205–57–2 shall not be prepared, tested, for testing pursuant to this subpart.
modified, adjusted, or maintained in (b) No maintenance will be performed
any manner unless such adjustments, on test vehicles except as provided for
preparation, modification and/or tests by § 205.57–3. In the event a vehicle is
are part of the manufacturer’s pre- unable to complete the emission test,
scribed manufacturing and inspection the manufacturer may replace the ve-
procedures, and are documented in the hicle. Any replacement vehicle will be
manufacturer’s internal vehicle assem- a production vehicle of the same con-
bly and inspection procedures or unless figuration as the replaced vehicle. It
such adjustments and/or tests are re- will be randomly selected from the
quired or permitted under this subpart batch sample and will be subject to all
or are approved in advance by the Ad- the provisions of these regulations.
ministrator. For purposes of this sec-
tion, prescribed manufacturing and in- § 205.57–5 Reporting of the test results.
spection procedures include quality (a) Within 5 working days after com-
control testing and assembly proce- pletion of testing of all vehicles in a
dures normally performed by the man- batch sample the manufacturer shall
ufacturer on like products during early submit to the Administrator a final re-
production so long as the resulting port which will include the information
testing is not biased by the procedure. required by the test request in the for-
In the case of imported products the mat stipulated in the test request in
manufacturer may perform adjust- addition to the following:
ments, preparations, modification and/ (1) The name, location, and descrip-
or tests normally performed at the port tion of the manufacturer’s emission
of entry by the manufacturer to pre- test facilities which meet the specifica-
pare the vehicle for delivery to a dealer tions of § 205.54 and were utilized to
or customer. conduct testing reported pursuant to
(b) Equipment or fixtures necessary this section: Except, that a test facil-
to conduct the test may be installed on ity that has been described in a pre-
the vehicle: Provided, That such vious submission under this subpart
equipment or fixtures shall have no ef- need not again be described but must
fect on the noise emissions of the vehi- be identified as such.
125
§ 205.57–6 40 CFR Ch. I (7–1–21 Edition)
(2) A description of the random vehi- § 205.57–6 Acceptance and rejection of

cle selection method used, referencing batches.
any tables of random numbers that (a) The batch from which a batch
were used, name of the person in sample is selected will be accepted or
charge of the random number selec- rejected based upon the number of fail-
tion, if the vehicle test request speci- ing vehicles in the batch sample. A suf-
fies a random vehicle selection. ficient number of test samples will be
(3) The following information for drawn from the batch sample until the
each noise emission test conducted, cumulative number of failing vehicles
(i) The completed data sheet required is less than or equal to the acceptance
by § 205.54 for all noise emission tests number or greater than or equal to the
including: For each invalid test, the rejection number appropriate for the
reason for invalidation. cumulative number of vehicles tested.
(ii) A complete description of any The acceptance and rejection numbers
modification, repair, preparation, listed in Appendix I, Table II at the ap-
maintenance, and/or testing which propriate code letter obtained accord-
could affect the noise emissions of the ing to § 205.57–2 will be used in deter-
vehicle and which was performed on mining whether the acceptance or re-
the test vehicle but will not be per- jection of a batch has occurred.
formed on all other production vehi- (b) Acceptance or rejection of a batch
cles. takes place when the decision that a
vehicle is a failing vehicle is made on
(iii) The reason for the replacement
the last vehicle required to make a de-
where a replacement vehicle was au-
cision under paragraph (a) of this sec-
thorized by the Administrator, and, if tion.
any, the test results for the replaced
vehicles. § 205.57–7 Acceptance and rejection of
(4) A complete description of the batch sequence.
sound data acquisition system if other (a) The manufacturer will continue
than those specified in §§ 205.54–1(a) and to inspect consecutive batches until
205.54–2(a). the batch sequence is accepted or re-
(5) The following statement and en- jected based upon the number of re-
dorsement: jected batches. A sufficient number of
This report is submitted pursuant to sec- consecutive batches will be inspected
tion 6 and section 13 of the Noise Control Act until the cumulative number of re-
of 1972. To the best of lll(company name) jected batches is less than or equal to
knowledge, all testing for which data are re- the sequence acceptance number of
ported herein was conducted in strict con- greater than or equal to the sequence
formance with applicable regulations under rejection number appropriate for the
40 CFR 205.1 et seq., all the data reported cumulative number of batches in-
herein are a true and accurate representa- spected. The acceptance and rejection
tion of such testing and all other informa- numbers listed in Appendix I, Table III
tion reported herein is true and accurate. I at the appropriate code letter obtained
am aware of the penalties associated with according to § 205.57–2 will be used in
violations of the Noise Control Act of 1972 determining whether the acceptance or
and the regulations thereunder.
rejection of a batch sequence has oc-
(authorized representative) curred.
(b) All information required to be for- (b) Acceptance or rejection of a batch
sequence takes place when the decision
warded to the Administrator pursuant
that a vehicle is a failiing vehicle is
to this section shall be addressed to Di-
made on the last vehicle required to
rector, Noise Enforcement Division make a decision under paragraph (a) of
(EN–387), U.S. Environmental Protec- this section.
tion Agency, Washington, DC 20460. (c) If the batch sequence is accepted,
[41 FR 15544, Apr. 13, 1976, as amended at 42 the manufactureer will not be required
FR 61459, Dec. 5, 1977; 43 FR 12326, Mar. 24, to perform any additional testing on
1978] vehicles from subsequent batches pur-
suant to the initiating test request.
126
(d) The Administrator may terminate comply with the applicable standards
testing earlier than required in para- is a prohibited act.
graph (b) of this section based on a re-
quest by the manufacturer accom- FR 61460, Dec. 5, 1977; 44 FR 54296, Sept. 19,
panied by voluntary cessation of dis- 1979]
tribution in commerce, of vehicles
from the category, configuration or § 205.57–9 Prohibition on distribution
subgroup in question manufactured at in commerce; manufacturer’s rem-
the plant which produced the vehicles edy.
under test: Provided, That before re- (a) The Administrator will permit
initiating distribution in commerce of the cessation of continued testing
vehicles from such plant of such vehi- under § 205.57–8 once the manufacturer
cle category, configuration or sub- has taken the following actions:
group, the manufacturer must take the (1) Submit a written report to the
action described in § 205.57–9(a)(1) and Administrator which identifies the rea-
(a)(2). son for the noncompliance of the vehi-
cles, describes the problem and de-
[41 FR 15544, Apr. 13, 1976, as amended at 42 scribes the proposed quality control
FR 61460, Dec. 5, 1977]
and/or quality assurance remedies to be
taken by the manufacturer to correct
§ 205.57–8 Continued testing.
the problem or follows the require-
(a) If a batch sequence is rejected in ments for an engineering change. Such
accordance with paragraph (b) of requirements include the following:
§ 205.57–7, the Administrator may re- (i) Any change to a configuration
quire that any or all vehicles of that with respect to any of the parameters
category, configuration of subgroup stated in § 205.55–3 shall constitute the
thereof produced at that plant be test- addition of a new and separate configu-
ed before distribution in commerce. ration or category to the manufactur-
(b) The Administrator will notify the er’s product line.
manufacturer in writing of his intent (ii) When a manufacturer introduces
to require such continued testing of ve- a new category or configuration to his
hicles pursuant to paragraph (a) of this product line, he shall proceed in ac-
section. cordance with § 205.55–2.
(c) The manufacturer may request a (iii) If the configuration to be added
hearing on the issues of whether the se- can be grouped within a verified cat-
lective enforcement audit was con- egory and the new configuration is es-
ducted properly; whether the criteria timated to have a lower sound pressure
for batch sequence rejection in § 204.57– level than a previously verified con-
figuration within the same category,
7 have been met; and, the appropriate-
the configuration shall be considered
ness or scope of a continued testing
verified.
order. In the event that a hearing is re-
(2) Demonstrates that the specified
quested, the hearing shall begin no
vehicle category, configuration or sub-
later than 15 days after the date on
group thereof has passed a retest con-
which the Administrator received the
ducted in accordance with § 205.57 and
hearing request. Neither the request the conditions specified in the initial
for a hearing nor the fact that a hear- test request.
ing is in progress shall affect the (3) The manufacturer may begin test-
reponsibility of the manufacturer to ing under paragraph (a)(2) of this sec-
commence and continue testing re- tion upon submitting such report, and
quired by the Administrator pursuant may cease continued testing upon
to paragraph (a) of this section. making the demonstration required by
(d) Any tested vehicle which dem- paragraph (a)(2) of this section, pro-
onstrated conformance with the appli- vided that the Administrator may re-
cable standards may be distributed quire resumption of continued testing
into commerce. if he determines that the manufacturer

(e) Any knowing distribution into has not satisfied the requirements of
commerce of a vehicle which does not paragraphs (a)(1) and (2) of this section.
127
§ 205.58 40 CFR Ch. I (7–1–21 Edition)
(b) Any vehicle failing the prescribed shall develop a list of those acts which,
noise emission tests conducted pursu- in his judgment, might be done to the
ant to this Subpart B may not be dis- vehicle in use and which would con-
tributed in commerce until necessary stitute the removal or rendering inop-
adjustments or repairs have been made erative of noise control devices or ele-
and the vehicle passes a retest. ments of design of the vehicle.
(c) No vehicles of a rejected batch (b) The manufacturer shall include in
which are still in the hands of the man- the owner’s manual the following infor-
ufacturer may be distributed in com- mation:
merce unless the manufacturer has (1) The statement:
demonstrated to the satisfaction of the
Administrator that such vehicles do in TAMPERING WITH NOISE CONTROL SYSTEM
fact conform to the regulations: Ex- PROHIBITED
cept, that any vehicle that has been Federal law prohibits the following acts or
tested and does, in fact, conform with the causing thereof:
these regulations may be distributed in (1) The removal or rendering inoperative
commerce. by any person, other than for purposes of
maintenance, repair, or replacement, of any
[41 FR 15544, Apr. 13, 1976, as amended at 42 device or element of design incorporated into
FR 61460, Dec. 5, 1977; 47 FR 57715, Dec. 28, any new vehicle for the purpose of noise con-
1982] trol prior to its sale or delivery to the ulti-
mate purchaser or while it is in use; or (2)
§ 205.58 In-use requirements. the use of the vehicle after such device or
element of design has been removed or ren-
§ 205.58–1 Warranty. dered inoperative by any person.
(a) The vehicle manufacturer shall (2) The statement:
include the owner’s manual or in other Among those acts presumed to constitute
information supplied to the ulitmate tampering are the acts listed below.
purchaser the following statement:
NOISE EMISSIONS WARRANTY the manufacturer shall include the list
developed under paragraph (a) of this
(Name of vehicle manufacturer) warrants
to the first person who purchases this vehi-
section.
cle for purposes other than resale and to (c) Any act included in the list pre-
each subsequent purchaser that this vehicle pared pursuant to paragraph (a) of this
as manufactured by (names of vehicle manu- section is presumed to constitute tam-
facturer), was designed, built and equipped pering; however, in any case in which a
to conform at the time it left (name of vehi- proscribed act has been committed and
cle manufacturer)’s control with all applica- it can be shown that such act resulted
ble U.S. EPA Noise Control Regulations. in no increase in the noise level of the
This warranty covers this vehicle as de- vehicle or that the vehicle still meets
signed, built and equipped by (Name of vehi-
cle manufacturer), and is not limited to any
the noise emission standard of § 205.52,
particular part, component or system of the such act will not constitute tampering.
vehicle manufactured by (name of vehicle (d) The provisions of this section are
manufacturer). Defects in design, assembly not intended to preclude any State or
or in any part, component or system of the local jurisdiction from adopting and
vehicle as manufactured by (name of vehicle enforcing its own prohibitions against
manufacturer), which, at the time it left the removal or rendering inoperative of
(name of vehicle manufacturer)’s control, noise control systems on vehicles sub-
caused noise emissions to exceed Federal
ject to this part.
standards, are covered by this warranty for
the life of the vehicle. [41 FR 15544, Apr. 13, 1976, as amended at 47
FR 57715, Dec. 28, 1982; 48 FR 27040, June 13,
(b) [Reserved] 1983]
FR 57715, Dec. 28, 1982; 48 FR 27040, June 13, § 205.58–3 Instructions for mainte-
1983] nance, use and repair.
(a)(1) The manufacturer shall provide
§ 205.58–2 Tampering. to the ultimate purchaser of each vehi-

(a) For each configuration of vehicles cle covered by this subpart written in-
covered by this part, the manufacturer structions for the proper maintenance,
128
Environmental Protection Agency Pt. 205, Subpt. B, App. I
use and repair of the vehicle in order to uted in commerce not in compliance
provide reasonable assurance of the with this subpart.
elimination or minimization of noise (b) A recall order issued pursuant to
emission degradation throughout the this section shall be based upon a de-
life of the vehicle. termination by the Administrator that
(2) The purpose of the instructions is vehicles of a specified category or con-
to inform purchasers and mechanics of figuration have been distributed in
those acts necessary to reasonably as- commerce which do not conform to the
sure that degradation of noise emission regulations. Such determination may
level is eliminated or minimized during be based on:
the life of the vehicle. Manufacturers (1) A technical analysis of the noise
should prepare the instructions with emission characteristics of the cat-
this purpose in mind. The instructions egory or configuration in question; or
should be clear and, to the extent prac- (2) Any other relevant information,
ticable, written in nontechnical lan- including test data.
guage. (c) For the purposes of this section,
(3) The instructions must not be used noise emissions may be measured by
to secure an unfair competitive advan- any test prescribed in § 205.54 for test-
tage. They should not restrict replace- ing prior to sale or any other test
ment equipment to original equipment which has been demonstrated to cor-
or service to dealer service. Manufac- relate with the prescribed test proce-
turers who so restrict replacement dure.
equipment should be prepared to make (d) Any such order shall be issued
public any performance specifications only after notice and an opportunity
on such equipment. for a hearing.
(b) For the purpose of encouraging (e) All costs, including labor and
proper maintenance, the manufacturer parts, associated with the recall and
shall provide a record or log book repair or modification of non-com-
which shall contain a schedule for the plying vehicles under this section shall
performance of all required noise emis- be borne by the manufacturer.
sion control maintenance. Space shall (f) This section shall not limit the
be provided in this record book so that discretion of the Administrator to take
the purchaser can note what mainte- any other actions which are authorized
nance was done, by whom, where and by the Act.
when.
APPENDIX I TO SUBPART B OF PART 205
FR 57716, Dec. 28, 1982]
TABLE I—SAMPLE SIZE CODE LETTERS
§ 205.59 Recall of noncomplying vehi- Code
Batch size
cles. letter
(a) Pursuant to section 11(d)(1) of the 4 to 8 ....................................................................... A.
Act, the Administrator may issue an 9 to 15 ..................................................................... B.
order to the manufacturer to recall and 16 to 25 ................................................................... C.
26 and larger ........................................................... D.
repair or modify any vehicle distrib-
TABLE II—SAMPLING PLANS FOR INSPECTING BATCHES
Cumulative
Test sam-
Sample size code letter Test sample test sam-
ple size Accept- Rejection
ple size ance No. No.
A ............................................................. 1st ............................................. 4 4 0 1

B ............................................................. 1st ............................................. 3 3 0 1
C ............................................................ 1st ............................................. 3 3 0 2
2d .............................................. 3 6 1 2
D ............................................................ 1st ............................................. 2 2 1
( ) 2
2d .............................................. 2 4 1
( ) 2
3d .............................................. 2 6 0 2
4th ............................................. 2 8 0 3
5th ............................................. 2 10 1 3
6th ............................................. 2 12 1 3
129
Pt. 205, Subpt. B, App. I 40 CFR Ch. I (7–1–21 Edition)
TABLE II—SAMPLING PLANS FOR INSPECTING BATCHES—Continued

Cumulative
Test sam-
Sample size code letter Test sample test sam-
ple size Accept- Rejection
ple size ance No. No.
7th ............................................. 2 14 2 3
1 Batch acceptance not permitted at this sample size.
TABLE III—BATCH SEQUENCE PLANS

Sequence inspection
Cumulative criteria
Number of
Sample size code letter number of
batches batches Accept- Rejection
ance No. No.
A .................................................................................................................... 2 2 1 (2)
2 4 2 4
2 6 3 5
2 8 4 5
B .................................................................................................................... 2 2 0 (2)
2 4 1 4
2 6 2 5
2 8 3 5
2 10 4 6
2 12 5 6
C .................................................................................................................... 2 2 (1) 2
2 4 0 2
2 6 0 3
2 8 1 3
2 10 2 4
2 12 3 4
D .................................................................................................................... 2 2 0 2
2 4 1 3
2 6 2 4
2 8 3 4
1 Batch sequence acceptance not permitted for this number of batches.
2 Batch sequence rejection not permitted for this number of batches.
TABLE IV—RECOMMENDED FORMAT FOR VEHICLE NOISE DATA SHEET

Test Report Number: ....................................................................... Manufacturer:.
VEHICLE:
Trade Name: .................................................................................... VIN:.
Model Year: ...................................................................................... Other Reference No:.
Configuration Identification: ............................................................. Category Identification:.
Test Site Identification and Location:.
INSTRUMENTATION:
Microphone Manufacturer: ............................................................... Model No: ............................. Serial No:.
Sound Level Manufacturer: .............................................................. Model No: ............................. Serial No:.
Calibrator Manufacturer: .................................................................. Model No: ............................. Serial No:.
Other and Manufacturer: .................................................................. Model No: ............................. Serial No:.
TEST DATA:
Approach Gear: ................................................................................ Date of Test:.
Approach RPM: ................................................................................ Temp: ................................... Wind:.
Acceleration Test:.
Deceleration Test:.
Acceleration Test
Run No.
1 2 3 4 5
dBA Left.
Right.
Highest RPM attained in End Zone
Calculated Sound Pressure ........................................ .................. dBA

Deceleration Test with Exhaust Brake Applied
dBA Left.
130
Acceleration Test
Run No.
1 2 3 4 5
Right.
Calculated Sound Pressure ........................................ .................. dBA

TEST Personnel:.
(Name)
Recorded By: ................................................................................................. Date:.........
(Signature)
Supervisor: ..................................................................................................... Title:.........
(Signature)
[41 FR 15544, Apr. 13, 1976, as amended at 42 of at least 40 km/h (25 mph) over a level
FR 61460, Dec. 5, 1977] paved surface; and
(B) Is equipped with features custom-
Subpart C [Reserved] arily associated with practical street
or highway use, such features including
Subpart D—Motorcycles but not limited to any of the following:
stoplight, horn, rear view mirror, turn
signals: or
SOURCE: 45 FR 86708, Dec. 31, 1980, unless
otherwise noted.
(ii) Any motorcycle that:
(A) Has an engine displacement less
§ 205.150 Applicability. than 50 cubic centimeters;
(B) Produces no more than two brake
(a) Except as otherwise provided in horse power;
these regulations, the provisions of (C) With a 80 kg (176 lb) driver, can-
this subpart apply to 1983 and subse- not exceed 48 km/h (30 mph) over a
quent model year motorcycles manu- level paved surface.
factured after December 31, 1982, which
(3) Competition motorcycle means any
meet the definition of ‘‘new product’’
motorcycle designed and marketed
in the Act.
solely for use in closed course competi-
(b) The provisions of this subpart do tion events.
not apply to electric or battery-pow- (4) Off-road motorcycle means any mo-
ered motorcycles. torcycle that is not a street motor-
(c) Except as provided in § 205.158, the cycle or competition motorcycle.
provisions of this subpart do not apply (5) Acceleration test procedure means
to competition motorcycles as defined the measurement methodologies speci-
in § 205.151(a)(3). fied in Appendix I.
§ 205.151 Definitions. (6) Acceptable quality level (AQL)
means the maximum allowable average
(a) As used in this subpart and in percentage of vehicles or exhaust sys-
Subpart E, all terms not defined herein tems that can fail sampling inspection
shall have the meaning given them in under a Selective Enforcement Audit.
the Act or in Subpart A of this part. (7) Acoustical Assurance Period (AAP)
(1) Motorcycle means any motor vehi- means a specified period of time or
cle, other than a tractor, that: miles driven after sale to the ultimate
(i) Has two or three wheels; purchaser during which a newly manu-
(ii) Has a curb mass less than or factured vehicle or exhaust system,
equal to 680 kg (1499 lb); and properly used and maintained, must
(iii) Is capable, with an 80 kg (176 lb) continue in compliance with the Fed-
driver, of achieving a maximum speed eral standard.
of at least 24 km/h (15 mph) over a level (8) Advertised Engine Displacement
paved surface. means the rounded off volumetric en-
(2) Street motorcycle means: gine capacity used for marketing pur-
(i) Any motorcycle that: poses by the motorcycle manufacturer.

(A) With an 80 kg (176 lb) driver, is (9) Category means a group of vehicle
capable of achieving a maximum speed configurations which are identical in
131
§ 205.152 40 CFR Ch. I (7–1–21 Edition)
all material aspects with respect to the which includes January 1 of any cal-
parameters listed in § 205.157–2 of this endar year, or if the manufacturer has
subpart. no annual production period, the term
(10) Class means a group of vehicles ‘‘model year’’ shall mean the calendar
which are identical in all material as- year.
pects with respect to the parameters (20) Motorcycle noise level means the
listed in § 205.155 of this subpart. A-weighted noise level of a motorcycle
(11) Closed course competition event as measured by the acceleration test
means any organized competition procedure.
event covering an enclosed, repeated or (21) Noise control system means any ve-
confined route intended for easy view- hicle part, component or system, the
ing of the entire route by all spec- purpose of which includes control or
tators. Such events include short the reduction of noise emitted from a
track, dirt track, drag race, speedway, vehicle, including all exhaust system
hillclimb, ice race, and the Bonneville components.
Speed Trials. (22) Noise emission standard means the
(12) Closing rpm means the engine noise levels in § 205.152 or § 205.166.
speed in Figure 2 of Appendix I. (23) Noise emission test means a test
(13) Configuration means the basic conducted pursuant to a measurement
classification unit of a manufacturer’s methodology specified in this subpart.
product line and is comprised of all ve- (24) [Reserved]
hicle designs, models or series which (25) Serial number means the identi-
are identical in all material aspects fication number assigned by the manu-
with respect to the parameters listed facturer to a specific production unit.
in § 205.157–3 of this subpart. (26) Tampering means the removal or
(14) Engine displacement means volu- rendering inoperative by any person,
metric engine capacity as defined in other than for purposes of mainte-
§ 205.153. nance, repair, or replacement, of any
(15) Exhaust system means the com- device or element of design incor-
bination of components which provides porated into any product in compliance
for the enclosed flow of exhaust gas with regulations under section 6, prior
from the engine exhaust port to the at- to its sale or delivery to the ultimate
mosphere. ‘‘Exhaust system’’ further purchaser or while it is in use; or the
means any constituent components of use of a product after such device or
the combination which conduct ex- element of design has been removed or
haust gases and which are sold as sepa- rendered inoperative by any person.
rate products. ‘‘Exhaust System’’ does (27) Test vehicle means a vehicle in a
not mean any of the constituent com- Selective Enforcement Audit test sam-
ponents of the combination, alone, ple.
which do not conduct exhaust gases, (28) Tractor means for the purposes of
such as brackets and other mounting this subpart, any two or three wheeled
hardware. vehicle used exclusively for agricul-
(16) Failing vehicle means a vehicle tural purposes, or for snow plowing, in-
whose noise level is in excess of the ap- cluding self-propelled machines used
plicable standard. exclusively in growing, harvesting or
(17) Maximum rated RPM means the handling farm produce.
engine speed measured in revolutions (29) Vehicle means any motorcycle
per minute (RPM) at which peak net regulated pursuant to this subpart.
brake power (SAE J–245) is developed (30) Warranty means the warranty re-
for motorcycles of a given configura- quired by section 6(d)(1) of the Act.
tion. [45 FR 86708, Dec. 31, 1980, as amended at 47
(18) Model specific code means the des- FR 57720, Dec. 28, 1982]
ignation used for labeling purposes in
§§ 205.158 and 205.169 for identifying the § 205.152 Noise emission standards.
motorcycle manufacturer, class, and (a) Noise emission standards. (1) Street
‘‘advertised engine displacement,’’ re- motorcycles of the following and subse-
spectively. quent model years must not produce

(19) Model year means the manufac- noise emissions in excess of the levels
turer’s annual production period, indicated:
132
(i) Street motorcycles other than comply with the standards set forth in
those that meet the definition of paragraphs (a)(1) and (2) of this section.
§ 205.151(a)(2)(ii): (b) Measurement procedure. (1) The
standards set forth in paragraph (a) of
A-weighted
Model year noise level this section refer to noise emissions as
(dB) measured in accordance with the meas-
(A) 1983 ............................................................... 83
urement methodology specified in Ap-
(B) 1986 ............................................................... 80 pendix I–1 for all motorcycles except
those street motorcycles that meet the
(ii) Street motorcycles that meet the definition of § 205.151(a)(2)(ii).
definition of § 205.151(a)(2)(ii)(moped- (2) The standards set forth in para-
type street motorcycles): graph (a) of this section for street mo-
torcycles that meet the definition of
A-weighted
Model year noise level § 205.151(a)(2)(ii) (moped-type street mo-
(dB) torcycles) refer to noise emissions
measured in accordance with the meas-
(A) 1983 ............................................................... 70
urement methodology specified in Ap-
(2) Off-road motorcycles of the fol- pendix I–2.
lowing and subsequent model years (c) Low noise emission product stand-
must not produce noise emissions in ard. For the purpose of Low-Noise-
excess of the levels indicated: Emission Product certification pursu-
(i) Off-road motorcycles with engine ant to 40 CFR part 203, motorcycles
displacements of 170 cc and lower: procured by the Federal government
after the following dates must not
A-weighted produce noise emissions in excess of
Model year noise level
(dB) the noise levels indicated:
(1) For street motorcycles with en-
(A) 1983 ............................................................... 83 gine displacement greater than 170 cc:
(B) 1986 ............................................................... 80
A-weighted
(ii) Off-road motorcycles with engine Date noise level
(dB)
displacements greater than 170 cc:
(i) January 1, 1982 .............................................. 73
A-weighted (ii) January 1, 1989 ............................................. 71
Model year noise level
(dB)
(2) For off-road motorcycles with en-
(A) 1983 ............................................................... 86 gine displacements greater than 170 cc:
(B) 1986 ............................................................... 82
A-weighted
(3) Street motorcycles must be de- Date noise level
(dB)
signed, built and equipped so that,
when properly maintained and used, (i) January 1, 1982 .............................................. 75
they will not produce noise emissions
in excess of the levels specified in para- (3) For off-road motorcycles with en-
graph (a)(1) of this section, for an gine displacement 170 cc and lower and
Acoustical Assurance Period of one street motorcycles with engine dis-
year or a distance of 6000 km (3730 mi) placement 170 cc and lower that do not
after the time of sale to the ultimate meet the definition of § 205.151(a)(2)(ii):
purchaser, whichever occurs first. A-weighted
(4) Off-road motorcycles must be de- Date noise level
signed, built and equipped so that, (dB)
when properly maintained and used, (i) January 1, 1982 .............................................. 71
they will not produce noise emissions
in excess of the levels specified in para- (4) For street motorcycles that meet
graph (a)(2) of this section, for an the definition of § 205.151(a)(2)(ii)
Acoustical Assurance Period of one (moped-type street motorcycles):
year or a distance of 3000 km (1865 mi)
after the time of sale to the ultimate A-weighted
Date noise level
purchaser, whichever occurs first. (dB)

(5) At the time of sale to the ulti-
(i) January 1, 1982 .............................................. 60
mate purchaser, all products must
133
§ 205.153 40 CFR Ch. I (7–1–21 Edition)
These levels refer to noise emissions as § 205.155 Motorcycle class and manu-
measured in accordance with the meas- facturer abbreviation.
urement methodologies specified in ap- (a) Motorcycles must be grouped into
pendix I. LNEP’s must also meet all re- classes determined by separate com-
quirements contained in paragraphs binations of the following parameters:
(a)(3), (4), and (5), of this section. (1) Engine type:
(Secs. 10 and 15 of the Noise Control Act, (42 (i) Gasoline—two stroke.
U.S.C. 4909, 4914)) (ii) Gasoline—four stroke.
(iii) Gasoline—rotary.
§ 205.153 Engine displacement. (iv) Other.
(a) Engine displacement must be cal- (2) Engine displacement.
culated using nominal engine values (3) Engine configuration:
and rounded to the nearest whole cubic (i) Number of cylinders.
centimeter, in accordance with Amer- (ii) Cylinder arrangement (i.e., in
ican Society for Testing Materials line, opposed, etc.).
(ASTM) E 29–67. (4) Exhaust system:
(b) For rotary engines, displacement (i) Muffler: (A) Type, (B) Location,
means the maximum volume of a com- (C) Number.
bustion chamber between two rotor tip (ii) Expansion chambers: (A) Loca-
seals minus the minimum volume of tion, (B) Size.
that combustion chamber between (iii) Spark arrestors.
those two rotor seals times three times (iv) Other exhaust system compo-
the number of rotors. nents.
cc = (Maximum chamber vol- § 205.156 [Reserved]

ume¥minimum chamber volume) ×
3 × number of rotors. § 205.157 Requirements.
§ 205.157–1 General requirements.

§ 205.154 Consideration of alternative
test procedures. (a) Each manufacturer of vehicles
manufactured for distribution in com-
The Administrator may approve ap-
merce in the United States which are
plications from manufacturers of mo-
subject to the standards prescribed in
torcycles for the approval of test proce-
this subpart and not exempted in ac-
dures which differ from those con- cordance with Subpart A, § 205.5:
tained in this subpart so long as the al- (1) Shall be labeled in accordance
ternative procedures have been dem- with the requirements of § 205.158 of
onstrated to correlate with the pre- this subpart.
scribed procedure. To be acceptable, al- (2) Must ensure that each vehicle
ternative test procedures must be such conforms to the applicable noise emis-
that the test results obtained will iden- sion standard establishd in § 205.152 of
tify all those test motorcycles which this subpart.
would not comply with the noise emis- (b) The requirements of paragraph (a)
sion standards prescribed in § 205.152 of this section apply to new products
when tested in accordance with the which conform to the definition of ve-
measurement methodology specified in hicles in these regulations and at the
Appendix I. After approval by the Ad- time such new products are assembled
ministrator, testing conducted by man- to that state of completeness in which
ufacturers using alternative test proce- the manufacturer sends them to a sub-
dures will be accepted by the Adminis- sequent manufacturer or otherwise dis-
trator for all purposes including, but tributes them in commerce.
not limited to, selective enforcement (c) Subsequent manufacturers of a
audit testing. new product which conforms to the def-
inition of vehicle in these regulations
[45 FR 86708, Dec. 31, 1980, as amended at 47 when received by them from a prior
FR 57720, Dec. 28, 1982] manufacturer, need not fulfill the re-
quirements of paragraph (a)(1) of this
section where such requirements have
134
already been complied with by a prior (ii) Identifying the configuration

manufacturer. within each category which emits the
(d) The manufacturer who is required highest A-weighted sound level (in dB).
to conduct product verification testing (iii) Testing in accordance with
to demonstrate compliance with a par- § 205.160–4 of a vehicle selected in ac-
ticular standard, must satisfy all other cordance with § 205.160–2 which much be
provisions of this subpart applicable to a vehicle of the configuration which is
that standard, including but not lim- identified pursuant to paragraph
ited to, record keeping, reporting and (c)(1)(ii) of this section as having the
in-use requirements. highest sound pressure level (estimated
[45 FR 86708, Dec. 31, 1980, as amended at 47 or actual) within the category.
FR 57720, Dec. 28, 1982] (iv) Demonstrating compliance of
that vehicle with the applicable stand-
§ 205.157–2 Compliance with stand-
ards. ard when tested in accordance with the
test procedure specified in Appendix I.
(a)(1) Prior to distribution in com-
(2) Where the requirements of para-
merce of vehicles of a specific configu-
graph (c)(1) of this section are complied
ration, the first manufacturer of such
with, all those configurations con-
vehicle must verify such configurations
tained within a category are considered
in accordance with the requirements of
this subpart. represented by the tested vehicle.
(2) [Reserved] (3) Where the manufacturer tests a
(3) At any time following receipt of vehicle configuration which has not
notice under paragraph (a)(2)(iii) of been determined as having the highest
this section with respect to a configu- sound pressure level of a category, but
ration, the Administrator may require all other requirements of paragraph
that the manufacturer ship test vehi- (c)(1) of this section are complied with,
cles to an EPA test facility for the re- all those configurations contained
quired production verification testing. within that category which are deter-
(b) The requirements for purposes of mined to have sound pressure levels
testing by the Administrator and selec- not greater than the tested vehicle are
tive enforcement auditing with regard considered to be represented by the
to each vehicle configuration consist tested vehicle; however, a manufac-
of: turer must for purposes of Testing by
(1) Testing in accordance with the Administrator and Selective En-
§ 205.160–4 of a vehicle selected in ac- forcement Auditing verify according to
cordance with § 205.160–2. the requirements of (b)(1) and/or (c)(1)
(2) Compliance of the test vehicle of this section any configurations in
with the applicable standard when test- the subject category which have a
ed in accordance with § 205.160–4. higher sound pressure level than the
(c)(1) In lieu of testing vehicles of vehicle configuration tested.
every configuration as described in (d) A manufacturer may elect for
paragraph (b) of this section, the man- purposes of Testing by the Adminis-
ufacturer may elect to verify the con-
trator and Selective Enforcement Au-
figuration based on representative test-
diting to use representative testing
ing. The requirements of representa-
pursuant to paragraph (c) of this sec-
tive testing are:
tion for all or part of his product line.
(i) Grouping configurations into cat-
egories where each category is deter- (e) The manufacturer has the fol-
mined by a separate combination of at lowing alternatives if any test vehicle
least the following parameters (a man- is determined to not be in compliance
ufacturer may use more parameters): with applicable standards:
(A) Engine type: (1) Gasoline-two (1) In the case of representative test-
stroke; (2) gasoline-four stroke; (3) gas- ing, a new test vehicle from another
oline-rotary; and (4) other. configuration must be selected accord-
(B) Engine displacement. ing to the requirements of paragraph
(C) Engine configuration: (1) Number (c) of this section, in order to verify
of cylinders; and (2) cylinder arrange- the configurations represented by the
ment (i.e., in line, opposed, etc.) non-compliant vehicle.
135
§ 205.157–3 40 CFR Ch. I (7–1–21 Edition)
(2) Modify the test vehicle and dem- (i) The label heading: Motorcycle
onstrate by testing that it meets appli- Noise Emission Control Information;
cable standards. The manufacturer (ii) The statement:
must modify all production vehicles of
This lll (model year) lll (model spe-
the same configuration in the same cific code) motorcycle, lll (serial num-
manner as the test vehicle before dis- ber), meets EPA noise emission require-
tribution into commerce. ments of lll (noise emission standard)
[45 FR 86708, Dec. 31, 1980, as amended at 47 dBA at lll (closing rpm) rpm by the Fed-
FR 57720, Dec. 28, 1982] eral test procedure. Modifications which
cause this motorcycle to exceed Federal
§ 205.157–3 Configuration identifica- noise standards are prohibited by Federal
tion. law. See owner’s manual.
(a) A separate vehicle configuration (6) The model specific code is limited
shall be determined by each combina- to ten spaces which includes three
tion of the following parameters: spaces for the manufacturer’s abbrevia-
(1) Exhaust system (engine): (i) Muf- tion (see paragraph (a)(7) of this sec-
flers; (ii) expansion chambers; (iii) tion), three spaces for the class identi-
spark arrestors; and (iv) other exhaust fication, and four spaces for the adver-
system components. tised engine displacement respectively.
(2) Air induction system (engine): (i) (7) All motorcycle manufacturers
Intake muffler; (ii) intake ducting; and shall use the following abbreviations in
(iii) air cleaner element. their model specific code.
(3) Vehicle drive train: (i) Chain; and BMW ........................................................................ BMW
Bultaco ..................................................................... BUL
(ii) shaft. Can-Am Bombardier ................................................ CAB
(4) Transmission gear ratio: (i) Chaparral ................................................................. CHA
Standard transmission; and (ii) auto- Cheeta ..................................................................... CHE
matic transmission. Ducati ...................................................................... DUC
Fox ........................................................................... FOX
(5) Cooling system configuration: (i) Harley Davidson ...................................................... HAR
Natural air cooled; (ii) liquid cooled; Heald ....................................................................... HEA
and (iii) forced air cooled. Hercules .................................................................. HER
Hodaka .................................................................... HOD
(6) Category parameters listed in Honda ...................................................................... HON
§ 205.157–2. Husqvarna ............................................................... HUS
(b) [Reserved] JAWA/CZ ................................................................. JAW
Kawasaki ................................................................. KAW
KTM ......................................................................... KTM
§ 205.158 Labeling requirements. Laverda .................................................................... LAV
(a)(1) The manufacturer of any vehi- Moto Benilli .............................................................. BEN
Moto Guzzi .............................................................. GUZ
cle subject to this subpart must, at the Moto Morini .............................................................. MOR
time of manufacture, affix a label, of MV Agusta ............................................................... MVA
the type specified in paragraphs (a)(2), Norton Triumph ....................................................... TRI
(3), and (4) of this section, to all such Rokon ...................................................................... ROK
Suzuki ...................................................................... SUZ
vehicles to be distributed in commerce. Yamaha ................................................................... YAM
(2) The label must be plastic or metal
and be welded, riveted, or otherwise (8) Moped manufacturers only shall
permanently attached in a readily visi- use the following abbreviations in their
ble position. model specific code.
(3) The label must be affixed by the AMF ......................................................................... AMF
Benelli ...................................................................... BEL
vehicle manufacturer to the vehicle in Califfo ...................................................................... CAL
such a manner that the label cannot be Carabela .................................................................. CAR
removed without destroying or defac- Cimatti ..................................................................... CIM
Columbia ................................................................. COL
ing it, and must not be affixed to any E-Z Rider ................................................................. EZR
piece of equipment that is easily de- Flying Dutchman ..................................................... FLY
tached from such vehicle. Foxi .......................................................................... FOI
(4) The label must be lettered in the Gadabout ................................................................. GAD
Garelli ...................................................................... GAR
English language in legible block let- Gitane ...................................................................... GIT
ters and numerals, which must be of a Honda ...................................................................... HON
color that contrasts with the back- Indian ....................................................................... IND
Intramotor ................................................................ INT

ground of the label. Italvelo ..................................................................... ITA
(5) The label must contain the fol- Kreidler .................................................................... KRE
lowing information: Lazer ........................................................................ LAZ
136
Malagati ................................................................... MAL tested pursuant to the Act be sub-
Morini ....................................................................... MOI
Motobecane/Solex ................................................... MBE
mitted to him, at such place and time
Moto Guzzi .............................................................. GUZ as he reasonably designates. He may
Negrini ..................................................................... NEG designate the quantity of vehicles and
Odyssey ................................................................... ODY the duration of time he reasonably re-
Pacer ....................................................................... PAC
Pack-A-Way ............................................................. PAK quires for the purpose of conducting
Peugeot ................................................................... PEU tests in accordance with test proce-
Puch ........................................................................ PUC dures described in appendix I. The man-
Riviera ..................................................................... RIV
Sachs ....................................................................... SAC ner in which the Administrator con-
Safari ....................................................................... SAF ducts such tests, the EPA test facility,
Scorpion .................................................................. SCO and the test procedures employed will
Smily ........................................................................ SMI
Snark ....................................................................... SNA
be based upon good engineering prac-
Sori II ....................................................................... SON tice and meet or exceed the require-
Speed Bird ............................................................... SPE ments of appendix I of the regulations.
Sprinter .................................................................... SPR (2) If the Administrator specifies that
SuVega .................................................................... SUV
Tomas ...................................................................... TOM he will conduct such testing at the
Vaespa .................................................................... VES manufacturer’s facility, the manufac-
Yankee Peddler ....................................................... YAN turer shall make available instrumen-
(9) If a new motorcycle manufacturer tation and equipment of the type re-
begins production of vehicles subject to quired for test operations by these reg-
this regulation, the Administrator will ulations. The Administrator may con-
assign him a 3-letter manufacturer ab- duct such tests with his own equip-
breviation as soon as reasonably prac- ment, having specifications equal to or
tical after his existence is known to exceeding the performance specifica-
the Agency. tions of the instrumentation and equip-
(b) Any vehicle manufactured in the ment required in these regulations.
United States solely for use outside the (3) The manufacturer may observe
United States must be clearly labeled tests conducted by the Administrator
in accordance with the provisions of pursuant to this section on vehicles
paragraphs (a) (2), (3), and (4) of this produced by the manufacturer and may
section with the statement; ‘‘For Ex- copy the data accumulated from such
port Only’’. tests. The manufacturer may inspect
(c) Any competition motorcycle as any of the vehicles before and after
defined in § 205.151(a)(3), shall be la- testing by the Administrator.
beled in accordance with the provisions (b)(1) If, based on tests conducted by
of paragraphs (a)(1), (2), (3) and (4) of the Administrator, or on other rel-
this section with the statement: evant information, the Administrator
determines that the test facility does
This motorcycle is designed for closed
not meet the requirements of appendix
course competition use only. It does not con-
form to U.S. EPA motorcycle noise stand- I (or the requirements for an alter-
ards. native test procedure approved under
§ 205.154), the Administrator will give
(d) It will be permissible for manu- notice to the manufacturer in writing
facturers to meet the requirements of of his determination and the reasons
this section by consolidating these la- underlying it.
beling requirements with other govern- (2) The manufacturer may, at any
ment labeling requirements in one or time within 15 days after receipt of a
more labels, provided the provisions of notice issued under paragraph (b)(1) of
paragraphs (a) (2), (3) and (4) of this this section, request a hearing con-
section are met. ducted in accordance with 5 U.S.C. 554
[45 FR 86708, Dec. 31, 1980, as amended at 47 on the issue of whether his test facility
FR 57721, Dec. 28, 1982] met the requirements as specified in
appendix I (or the alternative proce-
§ 205.159 Testing by the Administrator. dure). Such notice will not take effect
(a)(1) In order for the Administrator until 15 days after its receipt by the
to determine whether such vehicles or manufacturer or, if a hearing is re-
a manufacturer’s test facility conform quested under this paragraph, until ad-
to applicable regulations, the Adminis- judication by the Administrative law
trator may require that vehicles to be judge.
137
§ 205.160 40 CFR Ch. I (7–1–21 Edition)
(3) After any notice issued under (5) Testing of up to 10 percent of the
paragraph (b)(1) of this section has manufacturer’s test vehicles for a
taken effect, no data thereafter derived model year if the Administrator deter-
from that test facility will be accept- mines testing these vehicles at the
able for purposes of this subpart. EPA test site is necessary to assure
(4) The manufacturer may request in that a manufacturer has acted or is
writing that the Administrator recon- acting in compliance with the Act.
sider his determination under para- [45 FR 86708, Dec. 31, 1980, as amended at 47
graph (b)(1) of this section based on FR 57721, Dec. 28, 1982]
data or information which indicates
that changes have been made to the § 205.160 Selective enforcement audit-
test facility and that those changes ing (SEA) requirements.
have resolved the reasons for disquali-
§ 205.160–1 Test request.
fication.
(5) Within 10 working days after re- (a) The Administrator will request
ceipt of the manufacturer’s request for all testing under § 205.160 by means of a
reconsideration pursuant to paragraph test request addressed to the manufac-
(b)(4) of this section, the Administrator turer.
will notify the manufacturer of his (b) The test request will be signed by
determination and of the reasons the Assistant Administrator for En-
underlyng it with regard to the re- forcement or his designee. The test re-
qualification of the test facility. quest will be delivered to the plant
manager or other responsible official
(c) The Administrator will assume all
as designated by the manufacturer.
reasonable costs associated with ship-
(c) The test request will specify the
ment of vehicles to the place des-
vehicle category, configuration or con-
ignated pursuant to paragraph (a) of
figuration subgroup selected for test-
this section except with respect to:
ing, the manufacturer’s plant or stor-
(1) Any production verification test- age facility from which the vehicles
ing performed at a place other than the must be selected, and the time at
manufacturer’s facility as provided in which the vehicles must be selected.
§ 205.157–2(a), or as a result of the man- The test request will also provide for
ufacturer’s not owning or having ac- situations in which the selected cat-
cess to a test facility; egory, configuration, or configuration
(2) Testing of a reasonable number of subgroup is unavailable for testing.
vehicles (i) for purposes of selective en- The test request may include an alter-
forcement auditing under § 205.160, (ii) native category, configuration, or con-
or if the manufacturer has failed to es- figuration subgroup designated for
tablish that there is a correlation be- testing in the event that vehicles of
tween its test facility and the EPA test the first specified category, configura-
facility, (iii) or the Administrator has tion, or configuration subgroup are not
reason to believe, and provides the available for testing because the vehi-
manufacturer with a statement of such cles are not being manufactured at the
reason, that the vehicles to be tested specified plant, are not being manufac-
would fail to meet the standard pre- tured during the specified time, or are
scribed in this subpart if tested at the not being stored at the specified plant
EPA test facility even though they or storage facility.
would meet such standard if tested at (d)(1) If the manufacturer projects a
the manufacturer’s test facility; yearly production of fewer than 50 ve-
(3) Any testing performed during a hicles of the specified category, con-
period when a notice issued pursuant figuration or configuration subgroup to
to paragraph (b) of this section is in ef- be tested, then within five (5) days of
fect; receipt of the request, the manufac-
(4) Any testing performed at a place turer must notify the Administrator of
other than the manufacturer’s facility such low volume production. The Ad-
as a result of the manufacturer’s fail- ministrator will then provide a revised
ure to permit the Administrator to test request specifying a testing plan

conduct or monitor testing as required which imposes no greater risk of fail-
by this subpart; and ure (5%) at the acceptable quality level
138
(10%) than the plan in Appendix II. quest issued by the Administrator
Upon receipt of the revised test re- under this section; or
quest, the manufacturer must select (2) The manufacturer refuses to com-
and test a sample of vehicles from the ply with any of the requirements of
category, configuration or configura- this section.
tion subgroup specified in the test re- (g) A cease distribution order will not
quest in accordance with this subpart be issued under paragraph (f) of this
and the conditions specified in the test section if the manufacturer’s refusal is
request. caused by conditions and cir-
(2) If the manufacturer produces 50 or cumstances outside his control which
more vehicles of the specified category, render compliance with the provisions
configuration or configuration sub- of a test request or with any other re-
group per year, then upon receipt of quirements of this section impossible.
the test request, the manufacturer Conditions and circumstances outside
must select and test a sample of vehi- the control of the manufacturer in-
cles from the category, configuration clude, but are not limited to, the tem-
or configuration subgroup specified in porary unavailability of equipment and
the test request in accordance with personnel needed to conduct the re-
this subpart and the conditions speci- quired tests caused by uncontrollable
fied in the test request. factors, such as equipment breakdown
(e)(1) Any testing conducted by the or failure or illness of personnel. Fail-
manufacturer under a test request ure of the manufacturer to adequately
must be initiated within the time pe- plan for and provide the equipment and
riod specified in the test request; ex- personnel needed to conduct the tests
cept that initiation may be delayed for do not constitute uncontrollable fac-
increments of 24 hours or one business tors. The manufacturer must bear the
day where ambient test site weather burden of establishing the presence of
conditions, or other conditions beyond the conditions and circumstances re-
the control of the manufacturer, in quired by this paragraph.
that 24-hour period, do not permit test- (h) Any order to cease distribution
ing. The manufacturer must record the will be issued only after a notice and
conditions for this period. opportunity for a hearing in accord-
(2) The manufacturer must complete ance with 5 U.S.C. 554.
noise emission testing on a minimum
of ten vehicles per day unless otherwise § 205.160–2 Test sample selection and
provided by the Administrator or un- preparation.
less ambient test site conditions per- (a) Vehicles comprising the sample
mit only the testing of a lesser number which are required to be tested under a
in which case the ambient test site test request in accordance with this
weather conditions for that period subpart must be selected consecutively
must be recorded. as they are produced. Before the offi-
(3) The manufacturer is allowed 24 cial test, the test vehicle must not be
hours to ship vehicles from a sample prepared, tested, modified, adjusted, or
from the assembly plant to the testing maintained in any manner unless such
facility if the facility is not located at preparation, tests, modifications, ad-
the plant or in close proximity to the justments or maintenance are part of
plant. The Administrator may approve the manufacturer’s prescribed manu-
more time based upon a request by the facturing and inspection procedures,
manufacturer accompanied by a satis- and are documented in the manufactur-
factory justification. er’s internal vehicle assembly and in-
(f) The Administrator may issue an spection procedures, are required or
order to the manufacturer to cease dis- permitted under this subpart, or are
tribution in commerce of vehicles of a approved in advance by the Adminis-
specified category, configuration, or trator. For purposes of this section,
configuration subgroup being manufac- prescribed manufacturing and inspec-
tured at a particular facility, if: tion procedures include quality control

(1) The manufacturer refuses to com- testing and assembly procedures nor-
ply with the provisions of a test re- mally performed by the manufacturer
139
§ 205.160–3 40 CFR Ch. I (7–1–21 Edition)
on like products during early produc- category, configuration or configura-

tion if the resulting testing is not bition subgroup specified in the test re-
ased by this procedure. In the case of quest which are next scheduled for pro-
imported products, the manufacturer duction after receipt of the test re-
may perform adjustments, prepara- quest.
tions, modification or tests normally (e) The manufacturer must keep on
performed at the port of entry by the hand all products in the test sample
manufacturer to prepare the vehicle for until the sample is accepted or rejected
delivery to a dealer or customer. in accordance with § 205.160–6; except
(1) Equipment or fixtures necessary that vehicles actually tested and found
to conduct the test may be installed on to be in conformance with this regula-
the vehicle if such equipment or fix- tion need not be kept.
tures have no effect on the noise emis-
[45 FR 86708, Dec. 31, 1980, as amended at 47
sions of the vehicle, as determined by FR 57721, Dec. 28, 1982]
the measurement methodology.
(2) In the event of a vehicle malfunc- § 205.160–3 [Reserved]
tion (i.e., failure to start, etc.) the
manufacturer may perform the mainte- § 205.160–4 Testing procedures.
nance that is necessary to enable the (a) The manufacturer must conduct
vehicle to operate in a normal manner. one valid test in accordance with the
This maintenance must be documented appropriate test procedures specified in
and reported in the SEA report. Appendix I, on each vehicle selected for
(3) No quality control, quality assur- testing under this subpart.
ance testing, assembly or selection pro- (b) In the event a vehicle is unable to
cedures may be used on the test vehicle complete the noise emission test, the
or any portion of the test vehicle in- manufacturer may replace the vehicle.
cluding parts and subassemblies, unless Any replacement vehicle must be a
such quality control, quality assurance production vehicle of the same cat-
testing, assembly or selection proce- egory, configuration or subgroup as the
dures are used normally during the vehicle which it replaced, and it is sub-
production and assembly of all other ject to all the provisions of this sub-
vehicles of this configuration which part.
will be distributed in commerce, are re-
quired or permitted under this subpart [45 FR 86708, Dec. 31, 1980, as amended at 47
or are approved in advance by the Ad- FR 57721, Dec. 28, 1982]
ministrator.
(4) If a vehicle is unable to complete § 205.160–5 Reporting of the test re-
sults.
the noise tests, the manufacturer may
replace the vehicle. Any replacement (a)(1) The manufacturer must submit
vehicle must be a production vehicle of a copy of the test report for all testing
the same configuration as the replaced conducted pursuant to § 205.160 at the
vehicle or a noisier configuration and conclusion of each 24-hour period dur-
will be subject to all the provisions of ing which testing is done.
these regulations. Any replacement (2) For each test conducted the man-
must be reported in the SEA report. ufacturer must provide the following
(b) The Acceptable Quality Level information:
(AQL) is 10 percent. The appropriate (i) Category, configuration or con-
sampling plans associated with the des- figuration subgroup identification
ignated AQL are contained in Appendix where applicable;
II or the test request. (ii) Year, make, assembly date, and
(c) The vehicles of the category, con- model of vehicle;
figuration or configuration subgroup (iii) Vehicle serial number; and
selected for testing must be assembled (iv) Test results by serial numbers.
by the manufacturer for distribution in (b) In the case where an EPA En-
commerce using the manufacturer’s forcement Officer is present during
normal production process. testing required by this subpart, the
(d) Unless otherwise indicated in the written reports requested in paragraph

test request, the manufacturer must (a) of this section may be given di-
initiate testing with the vehicles of the rectly to the Enforcement Officer.
140
(c) Within 5 days after completion of § 205.160–6 Passing or failing under

testing of an SEA, the manufacturer SEA.
must submit to the Administrator a (a) A failing vehicle is one whose
final report which will include the measured noise level is in excess of the
following: applicable noise emission standard in
(1) The name, location, and descrip-
§ 205.152.
tion of the manufacturer’s noise emis-
(b) The number of failing vehicles in
sion test facilities which meet the
specifications of Appendix I, and were a sample determines whether the sam-
utilized to conduct testing reported ple passes or fails (See applicable ta-
under this section, except, that a test bles in Appendix II). If the number of
facility that has been described in a failing vehicles is greater than or equal
previous submission under this subpart to the number of Column B, the sample
need not again be described, but must fails. If the number of failing vehicles
be identified as that facility. is less than or equal to the number in
(2) The following information for Column A, the sample passes.
each noise emission test conducted: (c) Pass or failure of an SEA takes
(i) The individual records for the test place when a decision that a vehicle is
vehicles required by § 205.161(a)(2) for a passing or failing unit is made on the
all noise emission tests including for last vehicle required to make a deci-
each invalid test, the reason for invali- sion under paragraph (b) of this sec-
dation. tion.
(ii) A complete description of any (d) If the manufacturer passes the
modification, repair, preparation, SEA, he will not be required to perform
maintenance, or testing which could any additional testing on subsequent
affect the noise emissions of the prod- vehicles to satisfy the test request.
uct and which was performed on the (e) The Administrator may terminate
test vehicle but not performed on all testing earlier than required in para-
other production vehicles; and, graph (b) of this section, based on a re-
(iii) The test results for any replaced quest by the manufacturer, accom-
vehicle and the reason for its replace- panied by voluntarily ceasing distribu-
ment. tion in commerce of vehicles from the
(3) A complete description of the category, configuration or configura-
sound data acquisition system if other tion subgroup in question, manufac-
than those specified in Appendix I. tured at the plant which produced the
(4) The following statement and en- products being tested. Before reiniti-
dorsement: ating distribution in commerce of that
This report is submitted pursuant to sec- vehicle category, configuration or con-
tion 6 and section 13 of the Noise Control Act figuration subgroup from that plant,
of 1972. To the best of lll (company name) the manufacturer must take the action
knowledge, all testing for which data are re- described in § 205.160–8(a)(1) and (2).
ported here was conducted in strict conform-
ance with applicable regulations under 40 § 205.160–7 Continued testing.
CFR part 205 et seq., all the data reported
here are a true and accurate representation (a) If an SEA failure occurs according
of such testing, and all other information to paragraph (b) of § 205.160–6, the Ad-
reported here is true and accurate. I am ministrator may require that any or
aware of the penalties associated with viola- all vehicles of that category, configu-
tions of the Noise Control Act of 1972 and the ration or configuration subgroup pro-
regulations thereunder. lll (authorized duced at that plant be tested before
representative). distribution in commerce.
(5) Additional information required (b) The Administrator will notify the
by the test request. manufacturer in writing of his intent
(d) Information required to be sub- to require continued testing of vehicles
mitted to the Administrator under this under paragraph (a) of this section.
section must be sent to the following (c) The manufacturer may request a
address: Director, Noise and Radiation hearing on the issues of whether the
Enforcement Division, (EN–387), U.S. SEA was conducted properly; whether

Environmental Protection Agency, the criteria for SEA failure have been
Washington, DC 20460. met; and the appropriateness or scope
141
§ 205.160–8 40 CFR Ch. I (7–1–21 Edition)
of a continued testing order. If a hear- justments or repairs have been made

ing is requested, the hearing will begin and the vehicle passes a retest.
no later than 15 days after the date on [45 FR 86708, Dec. 31, 1980, as amended at 47
which the Administrator received the FR 57721, Dec. 28, 1982]
hearing request. Neither the request
for a hearing nor the fact that a hear- § 205.162 In-use requirements.
ing is in progress will affect the respon-
sibility of the manufacturer to com- § 205.162–1 Warranty.
mence and continue testing required by (a) The vehicle manufacturer who is
the Administrator pursuant to para- required to production verify under
graph (a) of this section. this subpart must include in the own-
(d) Any tested vehicle which dem- er’s manual or in other information
onstrates conformance with the appli- supplied to the ultimate purchaser the
cable standard may be distributed into following statement:
commerce. NOISE EMISSIONS WARRANTY [RE-
(e) Any distribution into commerce SERVED]
of a vehicle which does not comply
(b) [Reserved]
with the applicable standard is a pro-
hibited act. [45 FR 86708, Dec. 31, 1980, as amended at 48
FR 27040, June 13, 1983]
§ 205.160–8 Prohibition of distribution
in commerce; manufacturer’s rem- § 205.162–2 Tampering.
edy. (a) For each configuration of vehicles
(a) The Administrator will permit covered by this part, the manufacturer
the manufacturer to cease testing shall develop a list of acts which, in his
under § 205.160–7 after the manufacturer judgment, constitute the removal or
has taken the following actions: rendering totally or partially inoper-
(1) Submission of a written report to ative, other than for purposes of main-
the Administrator which identifies the tenance, repair, or replacement of
reason for the noncompliance of the ve- noise control devices or elements of de-
hicles, describes the problem and/or sign of the vehicle.
quality control or quality assurance (b) The manufacturer shall include in
remedies to be taken by the manufac- the owner’s manual the following infor-
turer to correct the problem. mation:
(1) The statement:
(2) Demonstration that the specified
vehicle category, configuration or con-
TAMPERING WITH NOISE CONTROL SYSTEM
figuration subgroup has passed a retest PROHIBITED
conducted in accordance with § 205.160,
and the conditions specified in the test Federal law prohibits the following acts or
causing thereof:
request.
(1) The removal or rendering inoperative
(b) The manufacturer may begin test- by any person other than for purposes of
ing under paragraph (a)(2) of this sec- maintenance, repair, or replacement, of any
tion upon submitting the report re- device or element of design incorporated into
quired by paragraph (a)(1) of this sec- any new vehicle for the purpose of noise con-
tion, and may cease continued testing trol prior to its sale or delivery to the ulti-
mate purchaser or while it is in use, or (2)
upon making the demonstration re-
the use of the vehicle after such device or
quired by paragraph (a)(2) of this sec- element of design has been removed or ren-
tion. The Administrator may require dered inoperative by any person.
resumption of continued testing if he
(2) The statement:
determines that the manufacturer has
not satisfied the requirements of para- Among those acts presumed to constitute
graphs (a)(1) and (2) of this section. tampering are the acts listed below.
(c) Any vehicle failing the prescribed
noise emission tests conducted pursu-

the manufacturer must include the list
ant to appendix I may not be distrib- developed under paragraph (a) of this
uted in commerce until necessary ad- section.
142
Environmental Protection Agency Pt. 205, Subpts. D–E, App. I, Nt.
(c) Any act included in the list pre- nance was done, by whom, where, and
pared pursuant to paragraph (a) of this when.
section is presumed to constitute tam-
pering; however, in any case in which a
FR 57722, Dec. 28, 1982]
presumed act of tampering has been
committed and it can be shown that § 205.163 Recall of noncomplying mo-
such act resulted in no increase in the torcycles; relabeling of mislabeled
noise level of the vehicle or that the motorcycles.
vehicle still meets the noise emission
standard of § 205.152, the act will not (a) Pursuant to section 11(d)(1) of the
constitute tampering. Act, the Administrator may issue an
(d) The provisions of this section are order to the manufacturer to recall, re-
not intended to preclude any State or pair, modify, or relabel any vehicles
local jurisdiction from adopting and distributed in commerce which are not
enforcing its own prohibitions against in compliance with this subpart.
the removal or rendering inoperative of (b) A recall order issued under this
noise control systems on vehicles subsection shall be based upon a deter-
ject to this part. mination by the Administrator that
vehicles of a specified category, con-
FR 57721, Dec. 28, 1982]
figuration, or class which do not con-
form to the regulations or are improp-
§ 205.162–3 Instructions for mainte- erly labeled have been distributed in
nance, use, and repair. commerce. This determination may be
(a)(1) The manufacturer must provide based on: (1) A technical analysis of the
to the purchaser of each vehicle cov- noise emission characteristics of the
ered by this subpart written instruc- category, configuration, or class in
tions for the proper maintenance, use, question; or (2) any other relevant in-
and repair of the vehicle in order to formation, including test data.
provide reasonable assurance of the (c) For the purpose of this section,
elimination or minimization of noise noise emissions are to be measured by
emission degradation throughout the the appropriate test procedure pre-
life of the vehicle. scribed in appendix I prior to sale or
(2) The purpose of the instructions is any other test which has been dem-
to inform purchasers and mechanics of onstrated to correlate with the pre-
the acts necessary to reasonably assure scribed test procedure in accordance
that degradation of noise emission with § 205.154.
level is eliminated or minimized during (d) Any order to recall shall be issued
the life of the vehicle. Manufacturers only after notice and an opportunity
shall prepare the instructions with this for a hearing.
purpose in mind. The instructions shall (e) All cost, including labor and
be clear and, to the extent practicable, parts, associated with the recall and
written in non-technical language. repair or modification of noncomplying
(3) The instructions must not be used vehicles and relabeling of mislabeled
to secure an unfair competitive advan- vehicles under this section shall be
tage. They shall not restrict replace-
borne by the manufacturer.
ment equipment to original equipment
or restrict service to dealer service un- (f) This section shall not limit the
less such manufacturer makes public discretion of the Administrator to take
the performance specifications on such any other actions which are authorized
equipment. by the Act.
(b) For the purpose of encouraging
APPENDIX I TO SUBPARTS D–E OF PART
proper maintenance, the manufacturer
2—MOTORCYCLE NOISE EMISSION
must provide a record or log book
which shall contain a schedule for the TEST PROCEDURES [NOTE]
performance of all required noise emis-
sion control maintenance. Space must EDITORIAL NOTE: The text of appendix I fol-
lows subpart E.
be provided in this record book so that
the purchaser can note what mainte-
143
§ 205.164 40 CFR Ch. I (7–1–21 Edition)
Subpart E—Motorcycle Exhaust tions or internal baffling are not con-

Systems sidered to be ‘‘exhaust header pipes.’’
(3) Failing exhaust system means that,
when installed on any Federally regu-
AUTHORITY: Sec. 6 of the Noise Control Act
(42 U.S.C. 4905).
lated motorcycle for which it is de-
signed and marketed, that motorcycle
SOURCE: 45 FR 86718, Dec. 31, 1980, unless and exhaust system exceed the applica-
otherwise noted. ble standards.
(4) Federally regulated motorcycle
§ 205.164 Applicability.
means, for the purpose of this subpart,
(a) Except as otherwise provided in any motorcyle subject to the noise
these regulations, the provisions of standards of subpart D of this part.
this subpart apply to any motorcycle (5) Federal standards means, for the
replacement exhaust system or motor- purpose of this subpart, the standards
cycle replacement exhaust system specified in § 205.152(a)(1), (2) and (3).
component which: (6) [Reserved]
(1) Meets the definition of the term (7) Stock configuration means that no
‘‘new product’’ in the Act; and modifications have been made to the
(2) Is designed and marketed for use orginal equipment motorcycle that
on any motorcycle subject to the provi- would affect the noise emissions of the
sions of subpart D of this part. vehicle when measured according to
(b) The provisions of § 205.169 addi- the acceleration test procedure.
tionally apply to the motorcycle ex- (8) Test exhaust system means an ex-
haust systems originally installed on haust system in Selective Enforcement
vehicles subject to the requirements of Audit test sample.
subpart D of this part. (b) [Reserved]
(c) The provisions of § 205.169(d)(3) ad-
ditionally apply to motorcycle replace- [45 FR 86718, Dec. 31, 1980, as amended at 47
ment exhaust systems manufactured FR 57722, Dec. 28, 1982]
after January 1, 1983 that are designed
and marketed for use on motorcycles § 205.166 Noise emission standards.
manufactured before January 1, 1983. (a) Noise emission standards. (1) Ex-
(d) Except as provided for in § 205.169, haust systems and exhaust system
the provisions of this subpart do not components that are designed and mar-
apply to exhaust systems which are de- keted for use on any Federally regu-
signed and marketed solely for use on lated street motorcycle of the fol-
competition motorcycles as defined in lowing and subsequent model years
§ 205.151(a)(3). must be designed and built so that
(e) The provisions of the subpart do when installed on any such motorcycle
not apply to exhaust header pipes sold which is in compliance with the re-
as separate products. quirements of subpart D of this part,
they will not cause that motorcycle to
§ 205.165 Definitions. produce noise emissions in excess of
(a) As used in this subpart, all terms the levels indicated:
not defined herein have the meaning (i) Systems designed and marketed
given them in subpart D of this part or for use on street motorcycles other
in the Act. than those that meet the definition of
(1) Category means a group of exhaust § 205.151(a)(2)(ii):
systems which are identical in all ma- A-weighted
terial aspects with respect to the pa- Motorcycle model year noise level
(dB)
rameters listed in § 205.168 of this sub-
part. (A) 1983 ............................................................... 83
(2) Exhaust header pipe means any (B) 1986 ............................................................... 80
tube of constant diameter which con-
ducts exhaust gas from an engine ex- (ii) Systems designed and marketed
haust port to other exhaust system for street motorcycles that meet the
components which provide noise at- definition of § 205.151(a)(2)(ii) (moped-
tenuation. Tubes with cross connec- type street motorcycles):
144
A-weighted signed and built so that, when installed

Motorcycle model year noise level
(dB) on any such motorcycle which is in
compliance with the requirements of
(A) 1983 ............................................................... 70 subpart D of this part, and when both
the motorcycle and the exhaust system
(2) Exhaust systems and exhaust sys-
are properly maintained and used, they
tem components that are designed and
will not cause that motorcycle to
marketed for use on any Federally reg-
ulated off-road motorcycle of the fol- produce noise emissions in excess of
lowing and subsequent model years the levels specified in paragraph (a)(2)
must be designed and built so that, at of this section, for an Acoustical As-
the time of sale, when installed on any surance Period of one year or a dis-
such motorcycle which is in compli- tance of 3000 km (1865 mi) after the
ance with the requirements of subpart time of sale to the ultimate purchaser,
D of this part, they will not cause that whichever occurs first.
motorcycle to produce noise emissions (5) At the time of sale to the ulti-
in excess of the levels indicated: mate purchaser all products must com-
(i) Systems designed and marketed ply with the standards set forth in
for use on off-road motorcycles with paragraphs (a) (1) and (2) of this sec-
engine displacements of 170 cc and tion.
lower: (b) Measurement procedure. (1)(i) The
A-weighted
standards set forth in paragraph (a) of
Motorcycle model year noise level this section refer to the noise emis-
(dB)
sions as measured in accordance with
(A) 1983 ............................................................... 83 the measurement methodology speci-
(B) 1986 ............................................................... 80 fied in appendix I–1 for all motorcycles
except those street motorcycles meet-
(ii) Systems designed and marketed ing the definition of § 205.151(a)(2)(ii).
for use on off-road motorcycles with
Exhaust systems which alter a motor-
engine displacements greater than
cycle’s maximum rated RPM shall be
170 cc:
tested using the unmodified motor-
A-weighted cycle’s maximum rated RPM to deter-
Motorcycle model year noise level
(dB) mine closing RPM or test RPM.
(ii) The standards set forth in para-
(A) 1983 ............................................................... 86
(B) 1986 ............................................................... 82
graph (a) of this section for street mo-
torcycles meeting the definition of
(3) Exhaust systems and exhaust sys- § 205.151(a)(2)(ii) (moped-type street mo-
tem components that are designed and torcycles) refer to noise emissions
marketed for use on any Federally reg- measured in accordance with the meas-
ulated street motorcycle shall be de- urement methodology specified in ap-
signed and built so that, when installed pendix I–2.
on any such motorcycle which is in (2) Exhaust system components sold
compliance with the requirements of as separate products shall be tested as
subpart D of this part, and when both part of a system made up of that part
the motorcycle and the exhaust system and original equipment components to
are properly maintained and used, they complete the system.
will not cause that motorcycle to (3) Exhaust system components sold
produce noise emissions in excess of as separate products which are incom-
the levels specified in paragraph (a)(1) patible with original equipment com-
of this section, for an Acoustical As-
ponents necessary to make a complete
surance Period of one year or a dis-
exhaust system, or which would not
tance of 6000 km (3729 mi) after the
meet standards as prescribed in this
time of sale to the ultimate purchaser,
whichever occurs first. subpart in such configuration, may be
(4) Exhaust systems and exhaust sys- tested with non-original equipment
tem components that are designed and components provided that the provi-
marketed for use on any Federally reg- sions of § 205.169(e)(1)(ii)(B) are carried
ulated off-road motorcycle must be de- out.
145
§ 205.167 40 CFR Ch. I (7–1–21 Edition)
§ 205.167 Consideration of alternative (1) Not withstanding paragraph (a)(1)

test procedures. of this section, the manufacturer may
The Administrator may approve ap- distribute in commerce exhaust sys-
tems of that category for up to 90 days
plications from manufacturers of origi-
if weather or other conditions beyond
nal equipment and replacement ex-
the control of the manufacturer make
haust systems for the approval of test
testing of a category impossible and if
procedures which differ from those con-
the following conditions are met:
tained in this subpart so long as the al-
(i) The manufacturer performs the
ternative procedures have been dem-
tests required under paragraph (d) or
onstrated to correlate with the pre-
(e) of this section on such category as
scribed procedure. To be acceptable, al-
soon as conditions permit;
ternative test procedures must be such
(ii) [Reserved]
that the test results obtained will iden-
(d) The requirements for each ex-
tify all those test exhaust systems
haust system category consist of:
which would not comply with the noise
(1) Testing in accordance with
emission standards prescribed in
§ 205.171–1 of an exhaust system se-
§ 205.166 when tested in accordance with
lected in accordance with § 205.171–2.
the measurement methodology speci-
(2) Compliance of the test exhaust
fied in appendix I. After approval by
system on a motorcycle for which it is
the Administrator, testing conducted
marketed with the applicable standard
by manufacturers using alternative
when tested in accordance with appen-
test procedures may be accepted by the
dix I; and
Administrator for all purposes includ-
(e) A manufacturer is required to
ing, but not limited to, production
verify all categories of exhaust systems
verification testing and selective en-
within his product line for each class of
forcement audit testing.
Federally regulated motorcycle for
§ 205.168 Requirements. which it is designed and marketed. A
category of a replacement exhaust sys-
§ 205.168–1 General requirements. tem is defined by a separate combina-
tion of at least the following param-
(a) Each manufacturer of motorcycle eters:
exhaust systems manufactured for Fed- (1) Muffler/Silencer: (i) Volume; (ii)
erally regulated motorcycles and dis- type of absorption material; (iii)
tributed in commerce in the United amount of absorption material; (iv)
States which are subject to the noise length; (v) diameter; (vi) directional
emission standards prescribed in this flow of exhaust gas; (vii) interior con-
subpart and not exempted in accord- struction; (viii) shell and inner con-
ance with subpart A, § 205.5: struction material; (ix) number of
(1) Must label each exhaust system in header pipes entering muffler; and (x)
accordance with the requirements of specific motorcycle application.
§ 205.169 of this subpart; and (2) Expansion Chamber: (i) Volume;
(2) Must only manufacture exhaust (ii) diameter; (iii) construction mate-
systems which conform to the applica- rial; (iv) directional flow of exhaust
ble noise emission standard established gas; (v) length; and (vi) specific motor-
in § 205.166 of this regulation when in- cycle application.
stalled on any Federally regulated mo- (3) Spark Arrestors: (i) Volume; (ii)
torcycle for which it has been designed construction material; (iii) directional
and marketed. flow of exhaust gas; (iv) length; (v) di-
(b) The manufacturer who is required ameter, and (vi) specific motorcycle
to conduct testing to demonstrate application.
compliance with a particular standard (4) Other Exhaust System Components:
must satisfy all other provisions of this (i) Volume; (ii) shape; (iii) length; (iv)
subpart applicable to that standard. diameter; (v) material; (vi) directional
(c) Prior to distribution into com- flow of exhaust gas; and (vii) specific
merce of exhaust systems of a specific motorcycle application.
category, the manufacturer of the ex- (f) Exhaust system components sold
haust system shall verify the category as separate products shall be tested
in accordance with this subpart. pursuant to § 205.166(b).
146
(g) Original equipment exhaust sys- to any part which is easily detached
tems that are also sold as replacement from such product.
systems for the same motorcycle con- (c) The label or mark shall be in a
figuration need not be tested under readily visible position when the ex-
this subpart if they have been tested or haust system or exhaust system com-
represented in a test report under sub- ponent is installed on all motorcycles
part D of this part. for which it is designed and marketed.
(h) A manufacturer has the following (d) All required language shall be let-
alternatives if any test exhaust system tered in the English language in block
is determined not to be in compliance letters and numerals in a color that
with applicable standards: contrasts with its background.
(i) Modify the test exhaust system (e) The label or mark must contain
and demonstrate by testing that it the following information:
meets applicable standards. The manu- (1) For exhaust systems subject to
facturer must modify all production the noise emission standards of
exhaust systems of the same category § 205.166:
in the same manner as the test exhaust (i) The label heading: Motorcycle Ex-
system before distribution in com- haust System Noise Emission Control
merce. Information;
(ii)(A) For original equipment and re-
[47 FR 57722, Dec. 28, 1982; 48 FR 27040, June placement exhaust system, the fol-
13, 1983]
lowing statement:
§ 205.168–11 Order to cease distribu- This (manufacturer’s name) exhaust sys-
tion. tem (serial number) meets EPA noise emis-
sion requirements of (noise emission stand-
(a) If a category of exhaust systems
ard) dBA for the following motorcycles: (list
is found not to comply with this sub- of model specific codes). Installation of this
part because it has not been verified or exhaust system on motorcycle models not
labeled as required by § 205.169, the Ad- specified may violate Federal law.
ministrator may issue an order to the
(B) For exhaust system components
manufacturer to cease distribution in
designed and marketed for motor-
commerce exhaust systems of that cat-
cycles, and tested in accordance with
egory. This order will not be issued if
§ 205.168 as a constituent of a complete
the manufacturer has made a good
exhaust system comprising non-origi-
faith attempt to properly production
nal equipment components (other than
verify the category and can establish
itself), as provided for in § 205.166(b)(3),
such good faith.
the following statement:
(b) Any such order shall be issued
after notice and opportunity for a hear- This (manufacturer’s name) (type of com-
ing which will be held in accordance ponent) (serial number), when installed with
with title 5 U.S.C. 554. a legal (type of component), meets EPA
noise emission requirements of (noise emis-
[45 FR 86718, Dec. 31, 1980, as amended at 48 sion standard) dBA for the following motor-
FR 27040, June 13, 1983] cycles: (list of model specific codes). Instal-
lation of this exhaust system components on
§ 205.169 Labeling requirements. motorcycle models not specified may violate
Federal law.
(a) The manufacturer of any product
(including the manufacturer of newly (iii) The model specific code must be
produced motorcycles) subject to this the same as used by the motorcycle
subpart must, at the time of manufac- manufacturer and described in
ture, affix a permanent, legible label, § 205.158(a)(6).
or mark of the type and in the manner (2) For exhaust systems designed
described below, containing the infor- solely for use on competition motor-
mation provided below, to all such ex- cycles (as defined by § 205.151(a)(3) and
haust systems or exhaust system com- so designated and labeled by the manu-
ponents to be distributed in commerce. facturer), the statement:
(b) The labels or marks shall be af- This product is designed for use on closed
fixed in such a manner that they can- course competition motorcycles only and
not be removed without destroying or does not conform to U.S. EPA noise emission
defacing them, and must not be applied standards. Used on motorcycles subject to
147
§ 205.170 40 CFR Ch. I (7–1–21 Edition)
EPA noise regulations constitutes tampering (3) The manufacturer may observe
and is a violation of Federal law unless it tests conducted by the Administrator
can be shown that such use does not cause pursuant to this section on exhaust
the motorcycle to exceed applicable Federal
standards.
systems produced by the manufacturer
and may copy the data accumulated
(3) For exhaust systems designed from such tests. The manufacturer
solely for use on motorcyles manufac- may inspect any of the exhaust sys-
tured before January 1, 1982, the state- tems before and after testing by the
ment: Administrator.
This product is designed for use on pre-1982 (b)(1) If, based on tests conducted by
model year motorcycles only and does not the Administrator or on other relevant
conform to U.S. EPA noise emission stand- information, the Administrator deter-
ards. Use on motorcycles subject to EPA mines that the test facility does not
noise regulations constitutes tampering and meet the requirements of appendix I or
is a violation of Federal law unless it can be
the requirements for an alternative
shown that such use does not cause the mo-
torcycle to exceed applicable Federal stand- test procedure approved under § 205.154,
ards. the Administrator will give notice to
the manufacturer in writing of his de-
(4) For replacement exhaust systems termination and the reasons under-
manufactured in the United States lying it.
solely for use outside the U.S. and not (2) The manufacturer may, at any
conforming to the noise emissions time within 15 days after receipt of a
standards of this regulation, the state- notice issued under paragraph (b)(1) of
ment: ‘‘For Export Only.’’ this section, request a hearing con-
[45 FR 86718, Dec. 31, 1980, as amended at 47 ducted in accordance with 5 U.S.C. 554
FR 57722, Dec. 28, 1982] on the issue of whether his test facility
met the requirements. Such notice will
§ 205.170 Testing by the Administrator. not take effect until 15 days after its
(a)(1) In order for the Administrator receipt by the manufacturer, or, if a
to determine whether such exhaust hearing is requested under this para-
systems or a manufacturer’s test facil- graph, until adjudication by the admin-
ity conform to applicable regulations, istrative law judge.
the Administrator may require that ex- (3) After any notice issued under
haust systems to be tested pursuant to paragraph (b)(1) of this section has
the Act be submitted to him, at such taken effect, no data thereafter derived
place and time as he reasonably des- from that test facility will be accept-
ignates. He may designate the quantity able for purposes of this subpart.
of exhaust systems and the duration of (4) The manufacturer may request in
time he reasonably requires for the writing that the Administrator recon-
purpose of conducting tests in accord- sider his determination under para-
ance with test procedures described in graph (b)(1) of this section based on
appendix I. The manner in which the data or information which indicates
Administrator conducts such tests, the that changes have been made to the
EPA test facility, and the test proce- test facility and that such changes
dures employed will be based upon good have resolved the reasons for disquali-
engineering practice and meet or ex- fication.
ceed the requirements of appendix I. (5) Within 10 working days after re-
(2) If the Administrator specifies that ceipt of the manufacturer’s request for
he will conduct such testing at the reconsideration pursuant to paragraph
manufacturer’s facility, the manufac- (b)(4) of this section, the Administrator
turer shall make available instrumen- will notify the manufacturer of his de-
tation and equipment of the type re- termination and the reasons under-
quired for test operators by these regu- lying it with regard to the requalifica-
lations. The Administrator may con- tion of the test facility.
duct such tests with his own equip- (c) The Administrator will assume all
ment, having specifications equal to or reasonable costs associated with ship-
exceeding the performance specifica- ment of exhaust systems to the place

tions of the instrumentation and equip- designated pursuant to paragraph (a) of
ment required in these regulations. this section except with respect to:
148
(1) [Reserved] manager or other responsible official

(2) Testing of a reasonable number of as designated by the manufacturer.
exhaust systems (i) for purposes of se- (c) The test request will specify the
lective enforcement auditing under exhaust system category, model and
§ 205.171, or (ii) if the manufacturer has model year of motorcycle selected for
failed to establish that there is a cor- testing, the manufacturer’s plant or
relation between its test facility and storage facility from which the exhaust
the EPA test facility, or (iii) the Ad- systems must be selected, the method
ministrator has reason to believe, and of selection and the time at which the
provides the manufacturer with a exhaust systems must be selected. The
statement of such reason, that the ex- test request will also provide for situa-
haust systems to be tested would fail tions in which the selected exhaust
to meet the standard prescribed in this system is unavailable for testing. The
subpart if tested at the EPA test facil- test request may include an alternative
ity, even though they would meet such exhaust system category designated for
standard if tested at the manufactur- testing in the event that exhaust sys-
er’s test facility; tems of the first specified category are
(3) Any testing performed during a not available for testing because the
period when a notice of non- conform- exhaust systems are not being manu-
ance of the manufacturer’s test facility factured at the specified plant or are
issued pursuant to paragraph (b) of this not being manufactured during the
section is in effect; specified time or are not being stored
(4) Any testing performed at a place at the specified plant or storage facil-
other than the manufacturer’s facility ity.
as a result of the manufacturer’s fail- (d)(1) If the manufacturer projects a
ure to permit the Administrator to yearly production of fewer than 50 ex-
conduct or monitor testing as required haust systems of the specified category
by this subpart; and to be tested, then, within five (5) days
of receipt of the request, the manufac-
(5) In addition to any exhaust sys-
turer must notify the Administrator of
tems included in paragraphs (c) (2), (3),
such low volume production. The Ad-
or (4) of this section, testing of up to 10
ministrator will then provide a revised
percent of the manufacturer’s exhaust
test request specifying a testing plan
systems for a model year if the Admin-
which imposes no greater risk of fail-
istrator determines testing these ex-
ure (5%) at the acceptable quality level
haust systems at the EPA test site is
(10%) than the plan in appendix II.
necessary to assure that a manufac-
Upon receipt of the revised test re-
turer has acted or is acting in compli-
quest, the manufacturer must select
ance with the Act.
and test a sample of exhaust systems
(Secs. 11 and 13 of the Noise Control Act (42 from the category specified in the test
U.S.C. 4910, 4912); 42 U.S.C. 4905; 86 Stat. 1237 request in accordance with this subpart
and secs. 6, 10, 11, 13, Pub. L. 92–574, 86 Stat. and the conditions specified in the test
1234 (42 U.S.C. 4905, 4909, 4910, 4912)) request.
[45 FR 86718, Dec. 31, 1980; 46 FR 4918, Jan. 19, (2) If the manufacturer produces 50 or
1981, as amended at 47 FR 57722, Dec. 28, 1982; more of the specified category, then,
49 FR 26738, June 29, 1984] upon receipt of the test request, the
manufacturer must select and test a
§ 205.171 Selective enforcement audit- sample of exhaust systems for the cat-
ing (SEA) requirements. egory specified in the test request in
accordance with this subpart and the
conditions specified in the test request.
(a) The Administrator will request (e)(1) Any testing conducted by the
all testing under § 205.171 by means of a manufacturer under a test request
test request addressed to the manufac- must be initiated within the time pe-
turer. riod specified in the test request; ex-
(b) The test request will be signed by cept that initiation may be delayed for
the Assistant Administrator for En- increments of 24 hours or one business

forcement or his designee. The test re- day where ambient test site weather
quest will be delivered to the plant conditions, or other conditions beyond
149
§ 205.171–2 40 CFR Ch. I (7–1–21 Edition)
the control of the manufacturer, in (h) Any order to cease distribution

that 24-hour period do not permit test- will be issued only after notice and op-
ing. The manufacturer must record the portunity for a hearing in accordance
conditions for this period. with 5 U.S.C. 554.
(2) The manufacturer must complete
noise emission testing on a minimum § 205.171–2 Test exhaust system sample
selection and preparation.
of ten exhaust systems per day unless
otherwise provided by the Adminis- (a)(1) Exhaust systems comprising
trator or unless ambient test site con- the sample which are required to be
ditions permit only the testing of a tested under a test request in accord-
lesser number, in which event the am- ance with this subpart must be selected
bient test site weather conditions for consecutively as they are produced.
that period must be recorded. (2) Test motorcycles and test exhaust
(3) The manufacturer is allowed 24 systems to be used for testing of ex-
hours to ship exhaust systems from a haust systems must be of the subject
sample from the assembly plant to the class which has been assembled using
testing facility if the facility is not lo- the manufacturer’s normal production
cated at the plant or in close proximity processes, in stock configuration in-
to the plant. The Administrator may cluding exhaust system, as sold or of-
approve more time based upon a re- fered for sale in commerce.
quest by the manufacturer accom- (3) Before the official test, the test
panied by a satisfactory justification. motorcycle and test exhaust system
must not be prepared, tested, modified,
(f) The Administrator may issue an
adjusted, or maintained in any manner
order to the manufacturer to cease dis-
unless such preparation, tests, modi-
tribution in commerce of exhaust sys-
fications, adjustments or maintenance
tems of a specified category being man-
are part of the original equipment
ufactured at a particular facility if:
manufacturer’s prescribed manufac-
(1) The manufacturer refuses to com- turing and inspection procedures, and
ply with the provisions of a test re- are documented in the manufacturer’s
quest issued by the Administrator internal motorcycle assembly and in-
under this section; or spection procedures, or are required or
(2) The manufacturer refuses to com- permitted under this subpart, or are
ply with any of the requirements of approved in advance by the Adminis-
this section. trator.
(g) A cease distribution order will not (4) Equipment or fixtures necessary
be issued under paragraph (f) of this to conduct the test may be installed on
section if the manufacturer’s refusal is the motorcycle, if such equipment or
caused by conditions and cir- fixtures shall have no effect on the
cumstances outside his control which noise emissions of the motorcycle as
render compliance with the provisions determined by the measurement meth-
of a test request or with any other re- odology.
quirements of this section impossible. (5) In the event of a motorcycle mal-
Conditions and circumstances outside function (i.e., failure to start, etc.)
the control of the manufacturer in- maintenance that is necessary may be
clude, but are not limited to, the tem- performed to enable the vehicle to
porary unavailability of equipment and operate in a normal manner. This
personnel needed to conduct the re- maintenance must be documented and
quired tests, caused by uncontrollable reported in the final report prepared
factors such as equipment breakdown and submitted in accordance with this
or failure or illness of personnel. Fail- subpart.
ure of the manufacturer to adequately (6) No quality control, quality assur-
plan for and provide the equipment and ance testing, assembly or selection pro-
personnel needed to conduct the tests cedures may be used on the test vehicle
does not constitute uncontrollable fac- or any portion thereof, including parts
tors. The manufacturer must bear the and subassemblies, that will not nor-
burden of establishing the presence of mally be used during the production

the conditions and circumstances re- and assembly of all other motorcycles
quired by this paragraph. of that class which will be distributed
150
in commerce, unless such procedures is subject to all the provisions of this

are required or permitted under this subpart.
subpart or are approved in advance by [45 FR 86718, Dec. 31, 1980, as amended at 47
the Administrator. FR 57723, Dec. 28, 1982]
(b) The Acceptable Quality Level
(AQL) is 10 percent. The appropriate § 205.171–7 Reporting of the test re-
sampling plans associated with the des- sults.
ignated AQL are contained in appendix (a)(1) The manufacturer must submit
II or the test request. a copy of the test report for all testing
(c) The exhaust systems of the cat- conducted pursuant to § 205.171 at the
egory selected for testing must be as- conclusion of each 24-hour period dur-
sembled by the manufacturer for dis- ing which testing is done.
tribution in commerce using the manu- (2) For each test conducted, the man-
facturer’s normal production process. ufacturer must provide the following
(d) Unless otherwise indicated in the information:
test request, the manufacturer must (i) Category identification where ap-
initiate testing with the exhaust sys- plicable;
tems of the category specified in the (ii) Year, manufacturing date, serial
test request which are next scheduled number and model of exhaust system;
for production after receipt of the test (iii) Year, make serial number, and
request. model of test motorcycle; and
(e) The manufacturer must keep on (iv) Test results by serial numbers.
hand all products in the test sample (b) In the case where an EPA En-
until the sample is accepted or rejected forcement Officer is present during
in accordance with § 205.171–8; except testing required by this subpart, the
that exhaust systems actually tested written reports requested in paragraph
and found to be in conformance with (a) of this section may be given di-
this regulation need not be kept. rectly to the Enforcement Officer.
[45 FR 86718, Dec. 31, 1980, as amended at 47 (c) Within 5 days after completion of
FR 57723, Dec. 28, 1982] an SEA, the manufacturer must submit
to the Administrator a final report
§ 205.171–3 Test motorcycle sample se- which will include the following:
lection.
(1) The name, location, and descrip-
A test motorcycle to be used for se- tion of the manufacturer’s noise emis-
lective enforcement audit testing of ex- sion test facilities which meet the
haust systems must be a motorcycle of specifications of appendix I and where
the subject class which has been assem- utilized to conduct testing reported
bled using the manufacturer’s normal under this section, except, that a test
production process, in stock configura- facility that has been described in a
tion including exhaust system, and previous submission under this subpart
sold or offered for sale in commerce. need not again be described, but must
be identified as that facility.
§ 205.171–6 Testing procedures. (2) The following information for
(a) The manufacturer of the exhaust each noise emission test conducted:
system must conduct one valid test in (i) The individual records required by
accordance with the appropriate test § 205.172 (a)(2) for all noise emission
procedure specified in appendix I for tests including for each invalid test,
each exhaust system selected for test- the reason for invalidation;
ing under this subpart. (ii) A complete description of any
(b) No maintenance may be per- modification, repair, preparation,
formed on the test exhaust system ex- maintenance, or testing, which could
cept as provided by § 205.171–2. In the affect the noise emissions of the prod-
event an exhaust system is unable to uct and which was performed on the
complete the noise emission test, the test exhaust system but not performed
manufacturer may replace the exhaust on all other production exhaust sys-
system. Any replacement exhaust systems;
tem must be a production exhaust sys- (iii) The test results for any replace-
tem of the same category as the ex- ment exhaust system and the reason
haust system which it replaced, and it for its replacement.
151
§ 205.171–8 40 CFR Ch. I (7–1–21 Edition)
(3) A complete description of the (e) The Administrator may terminate

sound data acquisition system if other testing earlier than required in para-
than that specified in appendix I. graph (b) of this section, based on a re-
(4) The following statement and en- quest by the manufacturer, accom-
dorsement: panied by voluntarily ceasing distribu-
This report is submitted pursuant to section in commerce of exhaust systems
tion 6 and section 13 of the Noise Control Act from the category in question, manu-
of 1972. To the best of (company name) factured at the plant which produced
knowledge, all testing for which data is re- the exhaust systems being tested. Be-
ported here was conducted in strict conform- fore reinitiating distribution in com-
ance with applicable regulations under 40 merce of that exhaust system category
CFR Part 205 et seq., all the data reported from that plant, the manufacturer
here are a true and accurate representation
of such testing, and all other information
must take the action described in
reported here is true and accurate. I am § 205.171–10(a)(1) and (2).
aware of the penalties associated with viola-
tions of the Noise Control Act of 1972 and the § 205.171–9 Continued testing.
regulations thereunder. (authorized repre- (a) If an SEA failure occurs according
sentative). to paragraph (b) of § 205.171–8, the Ad-
(5) Additional information required ministrator may require that any or
by the test request. all exhaust systems of that category
(d) Information required to be sub- produced at that plant be tested before
mitted to the Administrator under this distribution in commerce.
section must be sent to the following (b) The Administrator will notify the
address: Director, Noise and Radiation manufacturer in writing of his intent
Enforcement Division, (EN–387), U.S. to require continued testing of exhaust
Environmental Protection Agency, systems under paragraph (a) of this
Washington, DC 20460. section.
(c) The manufacturer may request a
§ 205.171–8 Passing or failing under hearing on the issues of whether the
SEA. SEA was conducted properly; whether
(a) A failing exhaust system is one the criteria for SEA failure have been
which, when installed on any motor- met; and the appropriateness or scope
cycle which is in compliance with the of a continued testing order. If a hear-
requirements of subpart D and for ing is requested, the hearing will begin
which it is designed and marketed, to- no later than 15 days after the date on
gether with such motorcycle produces which the Administrator received the
a measured noise level in excess of the hearing request. Neither the request
applicable noise emission standard in for a hearing nor the fact that a hear-
§ 205.166. ing is in progress will affect the respon-
(b) The number of failing vehicles in sibility of the manufacturer to com-
a sample determines whether the sam- mence and continue testing required by
ple passes or fails (See applicable ta- the Administrator pursuant to para-
bles in appendix II). If the number of graph (a) of this section.
failing vehicles is greater than or equal (d) Any tested exhaust system which
to the number in Column B, the sample demonstrates conformance with the ap-
fails. If the number of failing vehicles plicable standard may be distributed
is less than or equal to the number in into commerce.
Column A, the sample passes. (e) Any distribution into commerce
(c) Pass or failure of a SEA takes of an exhaust system which does not
place when a decision that an exhaust comply with the applicable standard is
system is a passing or failing unit is a prohibited act.
made on the last exhaust system re-
quired to make a decision under para- § 205.171–10 Prohibition on distribu-
graph (b) of this section. tion in commerce; manufacturer’s
(d) If the manufacturer passes the remedy.
SEA, he will not be required to perform (a) The Administrator will permit
any additional testing on subsequent the manufacturer to cease testing

exhaust systems to satisfy the test re- under § 205.171–9 after the manufacturer
quest. has taken the following actions:
152
(1) Submission of a written report to (2) Individual records for test exhaust
the Administrator which identifies the systems:
reason for the noncompliance of the ex- (i) A complete record of all noise
haust systems, describes the problem emission tests performed for Produc-
and describes the proposed quality con- tion Verification and Selective En-
trol or quality assurance remedies to forcement Audit (except tests per-
be taken by the manufacturer to cor- formed by EPA directly), including all
rect the problem. individual worksheets and other docu-
(2) Demonstration that the specified mentation or exact copies relating to
exhaust system category has passed a each test;
retest conducted in accordance with (ii) A record of the information re-
§ 205.171 and the conditions specified in corded as described in Appendix I; and
the test request. (iii) A record and description of all
(b) The manufacturer may begin test- repairs, maintenance and other serv-
ing under paragraph (a)(2) of this sec- icing which were performed before suc-
tion upon submitting the report, re- cessful testing of the exhaust system
quired by paragraph (a)(1) of this sec- pursuant to these regulations and
tion any may cease continued testing which could affect the noise emission
upon making the demonstration re- of the exhaust system, giving the date
quired by paragraph (a)(2) of this sec- and time of the maintenance or serv-
tion. The Administrator may require ice, the reason for it, the person au-
resumption of continued testing if he thorizing it, and the names of super-
determines that the manufacturer has visory personnel responsible for the
not satisfied the requirements of para- conduct of the maintenance or service.
graphs (a)(1) and (2) of this section. (3) A properly filed production
(c) Any exhaust system failing the verification report following the for-
noise emission tests conducted pursu- mat prescribed by the Administrator in
ant to Appendix I may not be distrib- § 205.168–3 fulfills the requirements of
uted into commerce until necessary ad- paragraphs (a)(1)(i) and (ii) of this
justment or repairs have been made section.
and the exhaust system passes a retest. (4) All records required to be main-
[45 FR 86718, Dec. 31, 1980, as amended at 47 tained under this subpart must be re-
FR 57723, Dec. 28, 1982] tained by the manufacturer for a pe-
riod of three (3) years from the produc-
§ 205.172 Maintenance of records; sub- tion verification date. Records may be
mittal of information. retained as hard copy or alternatively
(a) Except as otherwise provided in reduced to microfilm, punch cards,
regulation, the manufacturer of any etc., depending on the record retention
new exhaust system subject to any of procedures of the manufacturer; how-
the standards or procedures prescribed ever, when an alternative method is
in this subpart must establish, main- used, all information contained in the
tain and retain the following ade- hard copy must be contained in the
quately organized and indexed records: copy made by the alternative method.
(1) General records: (b) The manufacturer must, upon re-
(i) Identification and description by quest, submit to the Administrator the
category parameters of all exhaust sys- following information with regard to
tems in the manufacturer’s product new exhaust system production:
line; (1) Number of exhaust systems, by
(ii) A description of any procedures category, scheduled for production for
other than those contained in this sub- the time period designated in the
part used to perform noise emission request.
tests on any test exhaust system; (2) Number of exhaust systems, by
(iii) A record of the calibration of the category, produced during the time
acoustical instrumentation as is de- period designated in the request.
scribed in appendix I; (c) The reporting requirements of
(iv) A record of the date of manufac- this regulation will no longer be effec-
ture of each exhaust system subject to tive after five (5) years from the last
this subpart, keyed to the serial effective date of this regulation. How-
number. ever, the requirements will remain in
153
§ 205.173 40 CFR Ch. I (7–1–21 Edition)
effect if the Administrator is taking Warning: This product should be checked

appropriate steps to repromulgate or for repair or replacement if the motorcycle
modify the reporting requirements at noise has increased significantly through
use. Otherwise, the owner may become sub-
that time.
ject to penalties under state and local ordi-
nances.
§ 205.173 In-use requirements.
§ 205.173–1 Warranty. FR 57723, Dec. 28, 1982]
(a) The exhaust system manufacturer § 205.173–4 Information sheet.
must include in the information sup-
plied to the ultimate purchaser pursu- The manufacturer must include the
ant to § 205.173–4, the following state- Noise Emissions Warranty statement,
ment: Tampering Prohibition statement and
the Warning statement with each prod-
NOISE EMISSION WARRANTY uct. All three statements must be
[The manufacturer] warrants that this ex- printed on a white sheet or card at
haust system, at time of sale, meets all ap- least 81⁄2″ × 11″. Each statement must
plicable U.S. E.P.A. Federal noise standards. cover no more than 1⁄3 of the sheet or
This warranty extends to the first person card. No other printing must be on the
who buys this exhaust system for purposes sheet. The statements must be printed
other than resale, and to all subsequent buy- in black ink; the statement headings
ers. Warranty claims should be direct to
must be in capital letters in a min-
lll. (Manufacturer shall fill in this blank
with his name, address and telephone num- imum size type of 12 point (pica type)
ber.) or its equal; and the text of the state-
ment must be a minimum size type of
(b) [Reserved] 10 point (elite type) or its equal. The
(c) All information must be sent to: sheet or card must be placed with the
Director, Noise and Radiation Enforcement exhaust system inside any packaging.
Division (EN–387), Environmental Protec- If there is no packaging, the sheet or
tion Agency, Washington, DC 20460. card must be affixed to the exhaust
system so that it will not be acciden-
FR 57723, Dec. 28, 1982] tally detached in shipping.
§ 205.173–2 Tampering. § 205.174 Remedial orders.

The manufacturer must include the The Administrator may issue appro-
following statement pursuant to priate remedial orders to a manufac-
§ 205.173–4 with each product of that turer if products are distributed into
category the manufacturer distributes commerce not in compliance with the
into commerce: regulations of this subpart. Potential
orders are stop sale orders, orders to
TAMPERING PROHIBITION cease distribution, relabel, replace or
Federal law prohibits any modification to recall, or any other orders appropriate
this exhaust system which causes the motor- in the specific circumstances. A reme-
cycle to exceed the Federal noise standard. dial order will be issued only after no-
Use of the motorcycle with such a modified tice and opportunity for a hearing in
exhaust system is also prohibited. accordance with 5 U.S.C. 554.
Acts likely to constitute tampering in-
clude removal or puncturing the muffler, APPENDIX I TO SUBPARTS D–E OF PART
baffles, header pipes, or any other compo- 205—MOTORCYCLE NOISE EMISSION
nent which conducts exhaust gases. TEST PROCEDURES
APPENDIX I–1 TO SUBPARTS D AND E—TEST
FR 57723, Dec. 28, 1982]
PROCEDURE FOR STREET AND OFF-ROAD MO-
TORCYCLES
§ 205.173–3 Warning statement.
(a) Instrumentation. Proper usage of all test
The manufacturer must include the
instrumentation is essential to obtain valid
following statement pursuant to measurements. Operating manuals or other
§ 205.173–4 with each product of that literature furnished by the instrument man-
category the manufacturer distributes ufacturer must be referred to for both rec-
into commerce: ommended operation of the instrument and
154
Environmental Protection Agency Pt. 205, Subpts. D–E, App. I
precautions to be observed. The following in- get point on a normal to the vehicle path
strumentation must be used, where applica- through the microphone target point.
ble: (ii) The microphone must be:
(1) A sound level measurement system (A) Positioned at the microphone location
which meets the type S1A requirements of point 1.2 ±0.1 m (3.9 ±0.3 ft) above the ground
American National Standard Specification plane; and
for Sound Level Meters, ANSI S1.4–1971. As (B) Oriented in a plane perpendicular to
an alternative to making direct measure- the vehicle path, and at an angle for which
ments using a sound level meter, a micro- the microphone was calibrated to have the
phone or sound level meter may be used with flatest response characteristics over the fre-
a magnetic tape recorder and/or a graphic quency range of 100 Hz to 10,000 Hz when
level recorder or indicating instrument pro- measured with respect to the motorcycle
vided that the system meets the performance source.
requirements of ANSI S1.4–1971. The sound (iii) The surface of the ground within at
level measurement system must be cali- least the triangular area formed by the
brated at least annually to insure that the microphone location and the points 15 ±0.3m
system meets the performance requirements (49.2 ±1.0 ft.) prior to and 15 ±0.3 m (49.2 ±1.0
of ANSI S1.4–1971. ft.) beyond the microphone target point
(2) An acoustic calibrator with an accuracy must be flat (+5 cm (2.0 in)) and level (grade
of within ±0.5 dB. The calibrator must be not more than 0.5% along vehicle path), have
checked annually to verify that its output is a concrete or sealed asphalt surface, and be
within the specified accuracy. free from snow, soil or other extraneous
(3)(i) An engine speed measurement system material.
having the following characteristics: (iv) The vehicle path must be relatively
smooth and of sufficient length for safe ac-
(A) Steady-state accuracy of within ±3% of
celeration, deceleration and stopping of the
actual engine speed in the range of 45% to
motorcycle.
100% of the engine speed (RPM) where peak
(2) The test site must be flat, open space
net brake power (maximum rated RPM) is
free of large sound-reflecting surfaces (other
developed; and
than the ground), such as parked vehicles,
(B) Response characteristics such that, sign-boards, buildings or hillsides located
when closing RPM is indicated under an ac- within a 30 ±0.3 m (98.4 ±1.0 ft) radius of the
celeration as described below, actual engine microphone location and the following
speed is no more than 3 percent (of closing points on the vehicle path (see Figure 1):
RPM) greater than the specified closing (i) The microphone location point;
RPM. (ii) A point 15 ±0.3 m (49.2 ±1.0 ft.) before
(ii) The vehicle tachometer may be used to the microphone target point; and
ascertain: (iii) A point 15 ±0.3 m (49.2 ±1.0 ft) beyond
(A) The approach RPM provided it meets the microphone target point.
the specifications in paragraph (a)(3)(i)(A). (c) Measurement procedure. (1) To establish
(B) The closing RPM provided it meets the the acceleration point, the end point must be
specifications in paragraphs (a)(3)(i)(A) and approached in second gear from the reverse
(B). of the intended test direction at a constant
(iii) Indirect engine speed measurement engine speed of 50% of maximum rated RPM
systems, such as systems which determine or closing RPM less ten percent (of max-
engine speed from vehicle speed measure- imum rated RPM), whichever is lower, (±2.5%
ment, may be used provided the specifica- of observed reading). When the front of the
tions of paragraph (a)(1)(i) are met. motorcycle reaches the end point (ap-
(4) An anemometer with steady-state accu- proached from the reverse direction), the
racy of within ±10% at 20 km/h (12.4 mph). throttle must be smoothly and fully opened
(5) A microphone wind screen which does to accelerate the motorcycle past the micro-
not affect microphone response more than phone target point under wide open throttle.
±0.5 dB for frequencies of 20–4000 Hz or ±1.0 dB When the motorcycle reaches closing RPM
for frequencies of 4000–10,000 Hz, taking into the throttle must be smoothly and fully
account the orientation of the microphone. closed. An ignition disable device may be
(b) Test site. (1) The measurement area used to turn off the engine at closing RPM in
within the test site must meet the following lieu of closing the throttle manually. The lo-
requirements and be laid out as described: cation of the front of the motorcycle at the
(i) The following points must be estab- time of throttle closure is the acceleration
lished: point for the test runs. The test runs must be
(A) Microphone target point—a reference made in the opposite direction. A sufficient
point on the vehicle path; number of trial runs must be made to assure
(B) End point—a point on the vehicle path accurate establishment of the acceleration
7.5 ±0.3m (24.6 ±1.0 ft) beyond the microphone point.
target point, and (2) Closing RPM must be determined ac-

(C) Microphone location point—a point 15 cording to the motorcycle engine displace-
±0.3m (49.2 ±1.0 ft) from the microphone tar- ment, as follows (see Figure 2):
155
Pt. 205, Subpts. D–E, App. I 40 CFR Ch. I (7–1–21 Edition)
Closing RPM (Frac- testing to maintain the accuracy of the

Displacement (cc) tion of maximum rated measurement system.
RPM—percent) (2) The sound level meter must be observed
0 to 175 ............................................. 95 throughout the acceleration period. The
176 to 675 ......................................... 109 to 0.08 × (engine highest sound level obtained for the run
displacement in cc) must be recorded.
676 and above ................................... 55 (3) Measurements must be made until at
least four readings from each side are within
(3) The distance from the acceleration 2 dB of each other. The noise level for each
point to the end point must be at least 10 m side is the average of the four which are
(32.8 ft). If this distance is less than 10 m (32.8 within 2 dB of each other. The noise level re-
ft) by the procedure specified in paragraph ported must be for that side of the motor-
(c)(1), above, third gear, if the motorcycle is cycle having the highest noise level.
so equipped, must be used. If the distance is (4) While making sound level measure-
still less than 10 m (32.8 ft), fourth gear, if ments, not more than one person other than
the motorcycle is so equipped, must be used, the rider and the observer reading the meter
and so on. If closing RPM is reached before may be within 15 m (49.2 ft) of the vehicle or
the vehicle travels 10 m (32.8 ft), with the ve- microphone, and that person must be di-
hicle in its highest gear, the throttle must rectly behind the observer reading the
be opened less rapidly, but in such a manner meter, on a line through the microphone and
that full throttle and closing RPM are at- the observer.
tained at the end point. (5) The ambient noise level (including wind
(4) If the motorcycle is equipped with an effects) at the test site due to sources other
automatic transmission, the procedure speci- than the motorcycle being measured must be
fied in paragraph (c)(1), must be followed ex- at least 10 dB lower than the noise level at
cept that the lowest selectable range must the microphone location produced by the
be employed, and the procedure specified in motorcycle under test.
paragraph (c)(3) must be followed using the (6) Wind speed at the test site during tests
next selectable higher range, if necessary, must be less than 20 km/h (12.4 mph).
and if the vehicle is so equipped. If closing (e) Required data. For each valid test, the
RPM is reached before the vehicle travels 10 following data must be recorded:
m (32.8 ft.), the throttle must be opened less (1) Motorcycle type, serial number, model
rapidly, but in such a manner that full throt- year, and date of manufacture.
tle and closing RPM are attained at the end (2) Names of persons conducting test.
point. (3) Test location.
(5) Throttle opening must be controlled to (4) Wind speed and ambient noise level
avoid excessive wheel slip or lift-off. measured on the same day as the test and
(6) To conduct a sound measurement, the representative of conditions during the test.
motorcycle must proceed along the vehicle (5) Motorcycle engine displacement, max-
path in the forward direction in second gear imum rated RPM, and closing RPM.
(or higher gear as applicable under para- (6) The gear used for testing if other than
graph (c)(3)) at a constant engine speed of second gear; or type of transmission and de-
50% of maximum rated RPM or at closing scription of testing if motorcycle is equipped
RPM less ten percent (of maximum rated with automatic transmission.
RPM), whichever is lower (±2.5 percent of ob- (7) Description of the sound level meter in-
served reading). When the front of the vehi- cluding type, serial number, and calibration
cle reaches the acceleration point, the throt- date.
tle must be smoothly and fully opened. Full (8) Description of the external acoustic cal-
acceleration must continue until closing ibrator including type, serial number, and
RPM is reached, which must occur within calibration date.
±1.0 m (3.3 ft.) of the end point, and at which (9) Description of the tachometer or engine
time the throttle must be smoothly and fully speed measurement system used for con-
closed. An ignition disable device may be ducting the test.
used to turn off the engine at closing RPM in (10) Maximum noise level for each pass on
lieu of closing the throttle manually. each side of the motorcycle including invalid
(7) A sufficient number of preliminary runs readings and reasons for invalidation.
must be conducted before the testing to fa- (11) Reported noise level.
miliarize the rider with the test procedure (12) Other information as appropriate to
and operating conditions of the vehicle. The completely describe testing conditions and
engine temperature must be within the nor- procedure.
mal operating range prior to each run.
(d) Measurements. (1) The sound level meter APPENDIX I–2 TO SUBPARTS D AND E—TEST
PROCEDURE FOR STREET MOTORCYCLES THAT
must be set for fast response and for the A-
MEET THE DEFINITION OF § 205.151(a)(2)(ii)
weighting network. The microphone wind
(MOPED-TYPE STREET MOTORCYCLES)

screen must be used. The sound level meter
must be calibrated with the acoustic cali- (a) Instrumentation. Proper usage of all test
brator as often as is necessary throughout instrumentation is essential to obtain valid
156
measurements. Operating manuals or other microphone target point must be flat (±5 cm
literature furnished by the instrument man- (2.0 in)) and level (grade not more than 0.5%
ufacturer must be referred to for both rec- along vehicle path), have a concrete or
ommended operation of the instrument and sealed asphalt surface, and be free from
precautions to be observed. The following in- snow, soil or other extraneous material.
strumentation must be used, where applica- (iv) The vehicle path must be relatively
ble: smooth and of sufficient length for safe ac-
(1) A sound level measurement system celeration, deceleration and stopping of the
which meets the type SIA requirements of motorcycle.
American National Standard Specification (2) The test site must be a flat, open space
for Sound Level Meters, ANSI S1.4–1971. As free of large sound-reflecting surfaces (other
an alternative to making direct measure- than the ground), such as parked vehicles,
ments using a sound level meter, a micro- signboards, buildings or hillsides located
phone or sound level meter may be used with within a 30 ±0.3 m (98.4 ±1.0 ft) radius of the
a magnetic tape recorder and/or a graphic microphone location and the following
level recorder or indicating instrument pro- points on the vehicle path (see Figure 1):
vided that the system meets the performance (i) The microphone location point;
requirements of ANSI S1.4–1971. The sound (ii) A point 15 ±0.3 m (49.2 ±1 ft) before the
level measurement system must be cali- microphone target point; and
brated at least annually to insure that the (iii) A point 15 ±0.3 m (49.2 ±1 ft) beyond the
system meets the performance requirements microphone target point.
of ANSI S1.4–1971. (c) Measurement procedure. (1) The com-
(2) An acoustic calibrator with an accuracy bined weight of the test rider and test equip-
of within ±0.5 dB. The calibrator must be ment used on the motorcycle must not be
checked annually to verify that its output is more than 80 kg (176 lb) nor less than 75 kg
within the specified accuracy. (165 lb). Weights shall be placed on the mo-
(3) An anemometer with steady-state accu- torcycle saddle behind the rider to com-
racy of within ±10% at 20 km/h (12.4 mph). pensate for any difference between the ac-
(4) A microphone wind screen which does tual driver/equipment load and the required
not affect microphone response more than 75 kg (165 lb) minimum.
±0.5 dB for frequencies of 20–4000 Hz or ±1.0 dB (2) The motorcycle must approach the
for frequencies of 4000–10,000 Hz, taking into microphone target point with the throttle
account the orientation of the microphone. fully open and in the highest gear. The mo-
(b) Test site. (1) The measurement area torcycle must start such that maximum
within the test site must meet the following speed is reached before the vehicle is within
requirements and be laid out as described: 7.5 m of the microphone target point. The
(i) The following points must be estab- motorcycle must continue along the vehicle
lished: path with fully open throttle and at max-
(A) Microphone target point—a reference imum speed past the end point, at which
point on the vehicle path; time the throttle must be closed.
(B) End point—a point on the vehicle path (3) If the motorcycle is equipped with an
7.5 ±0.3 m (24.6 ±1.0 ft) beyond the microphone automatic transmission, the procedure of
target point; and paragraph (1), above, must be followed except
(C) Microphone location point—a point 15 that the highest selectable range shall be
±0.3 m (49.2 ±1.0 ft) from the microphone tar- employed.
get point on a normal to the vehicle path (d) Measurements. (1) The sound level meter
through the microphone target point. Alter- must be set for fast response and for the A-
nately, the microphone location point may weighting network. The microphone wind
be a point 7.5 ±0.3 m (24.6 ±1.0 ft) from the screen must be used. The sound level meter
microphone target point provided that the must be calibrated with the acoustic cali-
sound level reported is adjusted as provided brator as often as is necessary throughout
in this appendix under paragraph (d)(3). testing to maintain the accuracy of the
(ii) The microphone must be: measurement system.
(A) Positioned at the microphone location (2) The sound level meter must be observed
point 1.2 ±0.1 m (3.9 ±0.3 ft) above the ground throughout the passby period. The highest
plane; and noise level obtained for the run must be re-
(B) Oriented in a plane perpendicular to corded.
the vehicle path, and at an angle for which (3) At least three measurements shall be
the microphone was calibrated to have the made for each side of the motorcycle. Meas-
flattest response characteristics over the fre- urements must be made until at least three
quency range of 100 Hz to 10,000 Hz when readings from each side are within 2 dB of
measured with respect to the motorcycle each other. The noise level for each side
source. must be the average of the three. The noise
(iii) The surface of the ground within at level reported must be for that side of the
least the triangular area formed by the motorcycle having the highest noise level. If
microphone location and the points 15 ±0.3 m the microphone location point is 7.5 m from
(49.2 ±1 ft) prior to and 15 ±0.3 m beyond the the vehicle path as allowed in this appendix
157
Pt. 205, Subpts. D–E, App. I 40 CFR Ch. I (7–1–21 Edition)
under paragraph (b)(1)(i)(c), the noise level (e) Required data. For each valid test, the
must be adjusted by subtracting 6 dB prior to following data must be recorded:
being reported. (1) Motorcycle type, serial number, model
(4) While making noise level measure- year, and date of manufacture.
ments, not more than one person other than (2) Names of persons conducting test.
the rider and the observer reading the meter (3) Test location.
may be within 15 m (49.2 ft) of the vehicle or (4) Wind speed and ambient noise level
microphone, and that person must be di- measured on the same day as the test and
rectly behind the observer reading the representative of conditions during the test.
(5) Description of the sound level meter in-
meter, on a line through the microphone and
cluding type, serial number, and calibration
the observer.
date.
(5) The ambient sound level (including (6) Description of the external acoustic cal-
wind effects) at the test site due to sources ibrator including type, serial number, and
other than the motorcycle being measured calibration date.
must be no greater than 60 dB if the micro- (7) Maximum noise level for each pass on
phone is located 15 m from the vehicle path each side of the motorcycle including invalid
or 66 dB if the microphone is located 7.5 m readings and reasons for invalidation.
from the vehicle path as allowed in this ap- (8) Reported noise level.
pendix under paragraph (b)(1)(i)(c). (9) Other information as appropriate to
(6) Wind speed at the test site during tests completely describe testing conditions and
must be less than 20 km/h (12.4 mph). procedure.
158
159
EC01FE92.054</MATH>
Pt. 205, Subpt. E, App. II 40 CFR Ch. I (7–1–21 Edition)
APPENDIX II TO SUBPART E OF PART TABLE 3—MODEL YEAR PRODUCTION VOLUME

205—SAMPLING TABLES OF 200–399 VEHICLES—Continued
TABLE 1—MODEL YEAR PRODUCTION VOLUME Number of failing vehicles

Cumulative number of tests
OF 50–99 VEHICLES Column A Column B
Number of failing vehicles 9 ................................................. 0 4

Cumulative number of tests 10 ............................................... 0 4
Column A Column B 11 ............................................... 0 5
12 ............................................... 1 5
1 ................................................. .................... .................... 13 ............................................... 1 5
2 ................................................. .................... .................... 14 ............................................... 1 5
3 ................................................. .................... 3 15 ............................................... 1 5
4 ................................................. .................... 3 16 ............................................... 2 5
5 ................................................. .................... 3 17 ............................................... 2 5
6 ................................................. .................... 3 18 ............................................... 2 5
7 ................................................. 0 3 19 ............................................... 2 5
8 ................................................. 0 4 20 ............................................... 4 5
9 ................................................. 0 4
10 ............................................... 0 4
11 ............................................... 1 4 TABLE 4—MODEL YEAR PRODUCTION VOLUME
12 ............................................... 1 4
OF 400 OR MORE VEHICLES
13 ............................................... 1 5
14 ............................................... 1 5
Number of failing vehicles
15 ............................................... 2 5 Cumulative number of tests
16 ............................................... 2 5 Column A Column B
17 ............................................... 2 5
18 ............................................... 2 5 1 ................................................. .................... ....................
19 ............................................... 2 5 2 ................................................. .................... ....................
20 ............................................... 4 5 3 ................................................. .................... 3
4 ................................................. .................... 3
5 ................................................. .................... 3
TABLE 2—MODEL YEAR PRODUCTION VOLUME 6 ................................................. .................... 4
OF 100–199 VEHICLES 7 ................................................. 0 4
8 ................................................. 0 4
Number of failing vehicles 9 ................................................. 0 4
Cumulative number of tests 10 ............................................... 0 4
Column A Column B 11 ............................................... 0 5
12 ............................................... 1 5
1 ................................................. .................... .................... 13 ............................................... 1 5
2 ................................................. .................... .................... 14 ............................................... 1 5
3 ................................................. .................... 3 15 ............................................... 1 5
4 ................................................. .................... 3 16 ............................................... 2 5
5 ................................................. .................... 3 17 ............................................... 2 5
6 ................................................. .................... 3 18 ............................................... 2 5
7 ................................................. 0 4 19 ............................................... 2 5
8 ................................................. 0 4 20 ............................................... 4 5
9 ................................................. 0 4
10 ............................................... 0 4
11 ............................................... 1 4
12 ............................................... 1 5 PART 209—RULES OF PRACTICE
13 ............................................... 1 5 GOVERNING PROCEEDINGS
14 ............................................... 1 5
15 ............................................... 1 5 UNDER THE NOISE CONTROL ACT
16 ............................................... 2 5 OF 1972
17 ............................................... 2 5
18 ............................................... 2 5
19 ............................................... 2 5 Subpart A—Rules of Practice Governing
20 ............................................... 4 5 Hearings for Orders Issued Under Sec-
tion 11(d) of the Noise Control Act
TABLE 3—MODEL YEAR PRODUCTION VOLUME Sec.
OF 200–399 VEHICLES 209.1 Scope.
209.2 Use of number and gender.
Number of failing vehicles
Cumulative number of tests 209.3 Definitions.
Column A Column B 209.4 Issuance of complaint.
209.5 Complaint.
1 ................................................. .................... .................... 209.6 Answer.
2 ................................................. .................... .................... 209.7 Effective date of order in complaint.
3 ................................................. .................... 3
4 ................................................. .................... 3
209.8 Submission of a remedial plan.
209.9 Contents of a remedial plan.
5 ................................................. .................... 3
6 ................................................. .................... 3 209.10 Approval of plan, implementation.
7 ................................................. 0 4 209.11 Filing and service.
8 ................................................. 0 4 209.12 Time.
160
209.13 Consolidation. under 5 U.S.C. 3105 (see also 5 CFR part
209.14 Motions. 930, as amended by 37 FR 16787). ‘‘Ad-
209.15 Intervention.
209.16 Late intervention.
ministrative law judge’’ is synonymous
209.17 Amicus curiae. with ‘‘hearing examiner’’ as used in
209.18 Administrative law judge. Title 5 of the United States Code.
209.19 Informal settlement and consent (c) Administrator means the Adminis-
agreement. trator of the Environmental Protection
209.20 Conferences.
209.21 Primary discovery (exchange of wit-
Agency or his or her delegate.
ness lists and documents). (d) Agency means the U.S. Environ-
209.22 Other discovery. mental Protection Agency.
209.23 Trade secrets and privileged informa- (e) Complainant means the Agency
tion. acting through any person authorized
209.24 Default order.
209.25 Accelerated decision; dismissal. by the Administrator to issue a com-
209.26 Evidence. plaint to alleged violators of the Act.
209.27 Interlocutory appeal. The complainant shall not be the judi-
209.28 Record. cial officer or the Administrator.
209.29 Proposed findings, conclusions. (f) Hearing clerk means the hearing
209.30 Decision of the administrative law
judge. clerk of the Environmental Protection
209.31 Appeal from the decision of the ad- Agency.
ministrative law judge. (g) Intervener means a person who
209.32 Review of the administrative law files a motion to be made a party under
judge’s decision in absence of appeal. § 209.15 or § 209.16, and whose motion is
209.33 Decision on appeal or review.
209.34 Reconsideration. approved.
209.35 Conclusion of hearing. (h) Party means the Environmental
209.36 Judicial review. Protection Agency, the respondent(s)
AUTHORITY: Sec. 11, Noise Control Act of and any interveners.
1972 (42 U.S.C. 4910) and additional authority (i) Person means any individual, cor-
as specified. poration, partnership, or association,
SOURCE: 43 FR 34132, Aug. 3, 1978, unless and includes any officer, employee, de-
otherwise noted. partment, agency or instrumentality of
the United States, a State, or any po-
Subpart A—Rules of Practice Gov- litical subdivision of a State.
erning Hearings for Orders (j) Respondent means any person
Issued Under Section 11(d) of against whom a complaint has been
the Noise Control Act issued under this subpart.
(k) Environmental Appeals Board
§ 209.1 Scope. means the Board within the Agency de-
These rules of practice govern all scribed in § 1.25 of this title. The Ad-
proceedings conducted in the issuance ministrator delegates authority to the
of an order under section 11(d) of the Environmental Appeals Board to issue
Noise Control Act of 1972, 42 U.S.C. final decisions in appeals filed under
4910. this part. An appeal directed to the Ad-
ministrator, rather than to the Envi-
§ 209.2 Use of number and gender. ronmental Appeals Board, will not be
In these rules of practice, words in considered. This delegation of author-
the singular number apply to the plu- ity to the Environmental Appeals
ral and words in the masculine gender Board does not preclude the Environ-
apply to the feminine and vice versa. mental Appeals Board from referring
an appeal or a motion filed under this
§ 209.3 Definitions. part to the Administrator for decision
All terms not defined in this section when the Environmental Appeals
shall have the meaning given them in Board, in its discretion, deems it ap-
the Act. propriate to do so. When an appeal or
(a) Act means the Noise Control Act motion is referred to the Adminis-
of 1972 (42 U.S.C. 4901 et seq.). trator, all parties shall be so notified
(b) Administrative law judge means an and the rules in this part referring to
administrative law judge appointed the Environmental Appeals Board shall
161
§ 209.4 40 CFR Ch. I (7–1–21 Edition)
be interpreted as referring to the representative), or by certified mail,

Administrator. return receipt requested.
[43 FR 34132, Aug. 3, 1978, as amended at 57
(2) Service upon a domestic or foreign
FR 5344, Feb. 13, 1992] corporation or upon a partnership or
another unincorporated association
§ 209.4 Issuance of complaint. which is subject to suit under a com-
mon name shall be made by personal
If the complainant has reason to be-
service or certified mail, return receipt
lieve that a person has violated any
requested, directed to an officer or
provision of the Act or the regulations,
he or she may institute a proceeding partner, a managing or general agent,
for the issuance of a remedial order by or any other agent authorized by ap-
issuing a complaint. pointment or by Federal or State law
to receive service of process.
§ 209.5 Complaint. (3) Proof of service of the complaint
shall be made by affidavit of the person
(a) Contents. The complaint shall in-
making personal service, or by prop-
clude (1) specific reference to each pro-
erly executed return receipt.
vision of the Act or regulations which
respondent is alleged to have violated; § 209.6 Answer.
(2) a brief statement of the factual
basis for alleging each violation; (3) the (a) General. Where respondent (1) con-
proposed order issued under section tests any material fact alleged in the
11(d) of the Act to remedy the viola- complaint to constitute a violation of
tion, signed by the Assistant Adminis- the Act or regulations; or (2) contends
trator for Enforcement, with notice that the remedial order proposed in the
that the order shall be effective 20 days complaint is inappropriate to the vio-
after service of the complaint unless lation; or (3) contends that he or she is
respondent requests a hearing under entitled to judgment as a matter of
§ 209.6; (4) notice of respondent’s right law, he or she shall file a written an-
to request a hearing on any material swer with the complainant. Any an-
fact or issue of law contained in the swer must be filed with the complain-
complaint, or on the appropriateness of ant within twenty (20) days after serv-
the proposed order; and (5) a statement ice of the complaint. Initiation of in-
of whether the respondent must submit formal conferences with the Agency
a remedial plan pursuant to § 209.8. under § 209.19 does not add to the
(b) Amendment of the complaint. At twenty (20) day period. The time period
any time prior to the filing of an an- in which to file an answer may be ex-
swer, the complainant may amend the tended by the Administrator upon mo-
complaint as a matter of right. Re- tion.
spondent shall have twenty (20) addi- (b) Contents of the answer. The answer
tional days from the date of service of shall clearly and directly admit, deny
the amended complaint to file an an- or explain each of the factual allega-
swer. At any time after the filing of an tions contained in the complaint with
answer, the complaint may be amended regard to which respondent has any
upon motion granted by the adminis- knowledge. Whenever an allegation is
trative law judge. denied, the answer shall state briefly
(c) Withdrawal of the complaint. the facts upon which the denial is
Where, on the basis of new information based. The answer shall also state (1)
or evidence, the complainant concludes whether a hearing is requested, (2) the
that no violation of the Act or the reg- facts respondent intends to place at
ulations has been committed by the re- issue, and (3) the circumstances or ar-
spondent or that the issuance of the guments which are alleged to con-
complaint was otherwise inappropriate, stitute the grounds of defense.
the complainant may withdraw the (c) Hearing upon the issues. A hearing
complaint without prejudice at any upon the issues raised by the complaint
stage in the proceeding. and answer shall be held upon written
(d) Service of complaint. (1) Service of demand of respondent.

the complaint shall be made on the re- (d) Failure to plead specifically. A re-
spondent personally (or on his or her spondent’s failure to plead specifically
162
to any material factual allegation con- cluding a list of those in possession of

tained in the complaint shall con- the products and, if necessary, how the
stitute an admission of such allegation. respondent intends to contact the per-
(e) Amendment of the answer. The re- sons in possession and retrieve the
spondent may amend the answer upon products.
motion granted by the administrative (3) Any appropriate remedies the re-
law judge. spondent would propose as an alter-
native to the specific remedies pro-
§ 209.7 Effective date of order in composed by the Administrator.
plaint. (4) A detailed plan for implementing
(a) The order in the complaint is ef- the remedies, both those proposed by
fective and binding on respondent 20 the Administrator and those proposed
days after service of the complaint, un- by the respondent.
less respondent requests a hearing pur- (5) A detailed account of the costs of
suant to § 209.6. If the respondent does implementing each of the proposed
not request a hearing, the order is then plans.
a final order of the Agency. (b) Remedial plans shall be submitted
(b) Respondent may file a motion to Director, Noise Enforcement Divi-
with the complainant to vacate the sion (EN–387), Environmental Protec-
final order, reopen the proceedings and tion Agency, 1200 Pennsylvania Ave.,
request a hearing after the order is ef- NW., Washington, DC 20460.
fective. This motion must be filed
within twenty (20) days after the effec- (Sec. 13, Noise Control Act (42 U.S.C. 4912))
tive date of the order. The motion shall
§ 209.10 Approval of plan, implementa-
state the reasons respondent failed to tion.
file a timely answer, and provide the
information required by § 209.6(b). The (a) If the Administrator finds that
Administrator may, in his or her dis- the remedial plan is designed to rem-
cretion and for good cause shown, edy the noncompliance effectively, he
grant the motion. or she will so notify the respondent in
writing. If the remedial plan is not ap-
§ 209.8 Submission of a remedial plan. proved, the Administrator will provide
(a) The Administrator may require the respondent with written notice of
the respondent to submit a remedial the disapproval and the reasons for the
plan. Notice of this requirement and disapproval. The Administrator may
the due date will be given in the com- give the respondent an opportunity to
plaint. If the respondent requests a revise the plan, or the Administrator
hearing, the remedial plan required by may revise the plan.
the complaint need not be submitted. (b) The respondent shall commence
The final order may include a require- implementation of the approved plan
ment that the respondent submit a re- upon receipt of notice from the Admin-
medial plan. istrator that the remedial plan has
(b) A respondent may always submit been approved, or revised by the Ad-
a remedial plan voluntarily in pursuit ministrator and then approved.
of informal settlement. (Sec. 13, Noise Control Act (42 U.S.C. 4912))
(Sec. 13, Noise Control Act (42 U.S.C. 4912))
§ 209.11 Filing and service.
§ 209.9 Contents of a remedial plan. (a) After an answer containing a
(a) The Administrator will specify written demand for a hearing has been
the requirements of the remedial plan. filed, an original and two copies of all
This may include, but is not limited to, documents or papers required or per-
the following information: mitted to be filed under these rules of
(1) A detailed description of the prod- practice shall be filed with the hearing
ucts covered by the remedial order, in- clerk.
cluding the category and/or configura- (b) When a party files with the hear-
tion if applicable, and the make, model ing clerk any pleadings, any additional
year and model number, if applicable. issues for consideration at the hearing,
(2) A detailed description of the or any written testimony, documents,
present location of the products, in- papers, exhibits, or materials, proposed
163
§ 209.12 40 CFR Ch. I (7–1–21 Edition)
to be introduced into evidence or pa- grounds with particularity, and shall

pers filed in connection with any ap- set forth the relief or order sought.
peal, it shall serve copies upon all (b) Within 10 days after service of any
other parties. A certificate of service motion filed under this section or with-
shall be provided on or accompany each in such other time as may be fixed by
document or paper filed with the hear- the Environmental Appeals Board or
ing clerk. Documents to be served upon the administrative law judge, as appro-
the Director of the Noise Enforcement priate, any party may serve and file an
Division shall be mailed to: Director, answer to the motion. The movant
Noise Enforcement Division, U.S. Envi- shall, by leave of the Environmental
ronmental Protection Agency (EN–387), Appeals Board or the administrative
1200 Pennsylvania Ave., NW., Wash- law judge, as appropriate, serve and file
ington, DC 20460. reply papers within the time set by the
(c) Service by mail is complete upon request.
mailing. Filing is completed when the (c) The administrative law judge
document reaches the hearing clerk. It shall rule upon all motions filed or
shall be timely if mailed within the made subsequent to his or her appoint-
time allowed for filing as determined ment and prior to the filing of his or
by the postmark. her decision or accelerated decision, as
appropriate. The Environmental Ap-
§ 209.12 Time. peals Board shall rule upon all motions
filed before the appointment of the ad-
(a) In computing any period of time ministrative law judge and all motions
prescribed or allowed by these rules of filed after the filing of the decision of
practice, the day of the act or event the administrative law judge or accel-
from which the designated period of erated decision. Oral argument of mo-
time begins to run shall not be in- tions will be permitted only if the ad-
cluded, except as otherwise provided. ministrative law judge or the Environ-
Saturdays, Sundays, and Federal legal mental Appeals Board, as appropriate,
holidays shall be included in com- deems it necessary.
puting any period allowed for the filing
of any document or paper, except that [43 FR 34132, Aug. 3, 1978, as amended at 57
when a period expires on a Saturday, FR 5344, Feb. 13, 1992]
Sunday, or Federal legal holiday, the § 209.15 Intervention.
period shall be extended to include the
next following business day. (a) Persons desiring to intervene in a
(b) A prescribed period of time within hearing to be held under section 11(d)
which a party is required or permitted of the act shall file a motion setting
to do an act shall be computed from forth the facts and reasons why they
the time of service, except that when should be permitted to intervene.
service is accomplished by mail, 3 days (b) In passing on a motion to inter-
shall be added. vene, the following factors, among
other things, shall be considered by the
§ 209.13 Consolidation. administrative law judge:
(1) The nature of the movant’s inter-
The Administrator or the adminis- est including the nature and the extent
trative law judge may consolidate two of the property, financial, environ-
or more proceedings to be held under mental protection, or other interest of
this section for resolving one or more the movant;
issues whenever it appears that such (2) The effect the order which may be
consolidation will expedite or simplify entered in the proceeding may have on
consideration of such issues. Consolida- the movant’s interest;
tion shall not affect the right of any (3) The extent to which the movant’s
party to raise any issues that could interest will be represented by existing
otherwise have been raised. parties or may be protected by other
means;
§ 209.14 Motions. (4) The extent to which the movant’s
(a) All motions, except those made participation may reasonably be ex-
orally during the course of the hearing, pected to assist materially in the de-
shall be in writing, shall state the velopment of a complete record;
164
(5) The extent to which one movant’s that there is good cause for granting
participation may reasonably be ex- the motion and must contain a state-
pected to delay the proceedings. ment that the movant shall be bound
(c) A motion to intervene should be by agreements, arrangements, and
filed before the first prehearing con- other determinations which may have
ference, the initiation of correspond- been made in the proceeding.
ence under § 209.20, or the setting of the
time and place for the hearing, which- § 209.17 Amicus curiae.
ever occurs earliest. Motions shall be Persons not parties to the pro-
served on all parties. Any opposition to ceedings who wish to file briefs may do
such motion must be filed within 10 so by leave of the Environmental Ap-
days of service. peals Board or the administrative law
(d) All motions to be made an inter- judge, as appropriate, granted on mo-
vener shall be reviewed by the adminis- tion. This motion shall identify the in-
trative law judge using the criteria set terest of the applicant and shall state
forth in paragraph (b) of this section the reasons why the proposed amicus
and considering any opposition to such brief is desirable. An amicus curiae
motion. The administrative law judge shall be eligible to participate in any
may, in granting such motion, limit a briefing following the granting of his
movant’s participation to certain or her motion, and shall be served with
issues only. all briefs, reply briefs, motions and or-
(e) If the administrative law judge ders relating to issues to be briefed.
grants the motion with respect to any [43 FR 34132, Aug. 3, 1978, as amended at 57
or all issues, he or she shall notify, or FR 5344, Feb. 13, 1992]
direct the hearing clerk to notify, the
petitioner and all parties. If the admin- § 209.18 Administrative law judge.
istrative law judge denies the motion (a) General. The administrative law
he or she shall notify, or direct the judge shall conduct a fair and impar-
hearing clerk to notify, the petitioner tial hearing in accordance with 5
and all parties and shall briefly state U.S.C. 554, and shall take all necessary
the reasons why the motion was action to avoid delay and maintain
denied. order. He or she shall have all power
(f) All motions to be made an inter- consistent with Agency rule and with
vener shall include the movant’s agree- the Administrative Procedure Act, 5
ment that the movant and any person U.S.C. 551 et seq., necessary to this end,
he or she represents will be subject to including the following:
examination and cross-examination, (1) To administer oaths and affirma-
and will also include an agreement to tions;
make any supporting and relevant (2) To rule upon offers of proof and
records available at the movant’s own receive relevant evidence;
expense upon the request of the admin- (3) To regulate the course of the
istrative law judge, on his or her own hearings and the conduct of the parties
motion or the motion of any party or and their counsel;
other intervener. If the intervener fails (4) To hold conferences for simplifica-
to comply with any of these requests, tion of the issues or any other proper
the administrative law judge may, in purpose;
his or her discretion, terminate his or (5) To consider and rule upon all ap-
her status as an intervener. propriate procedural and other mo-
tions, and to issue all necessary orders;
§ 209.16 Late intervention. (6) To require the submission of testi-
Following the expiration of the time mony in written form whenever in the
prescribed in § 209.15 for the submission opinion of the administrative law judge
of motions to intervene in a hearing, oral testimony is not necessary for full
any person may file a motion with the and true disclosure of the facts.
administrative law judge to intervene (7) To require the filing of briefs on
in a hearing. Such a motion must con- any matter on which he or she is re-
tain the information and commitments quired to rule;

required by paragraph (b) and (f) of (8) To require any party or any wit-
§ 209.15, and, in addition, must show ness, during the course of the hearing,
165
§ 209.19 40 CFR Ch. I (7–1–21 Edition)
to state his or her position on any rel- The consent agreement shall include (i)
evant issue; the terms of the agreement; (ii) any ap-
(9) To take depositions or cause depo- propriate conclusions regarding mate-
sitions to be taken in accordance with rial issues of law, fact and/or discretion
§ 209.22. as well as reasons therefor; and (iii) the
(10) To render judgments upon issues Environmental Appeals Board’s pro-
of law during the course of the hearing. posed final order. The administrative
(11) To issue subpenas authorized by law judge does not have jurisdiction
law. over a consent agreement.
(b) Assignment of administrative law (c) Final order. No settlement or con-
judge. When an answer which contains sent agreement shall be dispositive of
a written demand for a hearing is filed, any action pending under section 11(d)
the administrator shall refer the proof the act without a final order of the
ceeding to the chief administrative law Environmental Appeals Board. In pre-
judge, who shall conduct the pro- paring a final order, the Environmental
ceeding, or assign another administra- Appeals Board may require that any or
tive law judge to conduct the pro- all of the parties to the settlement or
ceeding. other parties appear before it to answer
(Sec. 16, Noise Control Act (42 U.S.C. 4915))
inquiries relating to the proposed con-
sent agreement. The hearing is termi-
§ 209.19 Informal settlement and con- nated without further proceedings
sent agreement. upon the filing of the final order with
(a) Settlement policy. The Agency en- the hearing clerk.
courages settlement of the proceeding [43 FR 34132, Aug. 3, 1978, as amended at 57
at any time after the issuance of a FR 5344, Feb. 13, 1992]
complaint if settlement is consistent
with the provisions and the objectives § 209.20 Conferences.
of the act and the regulations. Whether (a) At the discretion of the adminis-
or not respondent requests a hearing, trative law judge, conferences may be
he or she may confer with complainant held prior to or during any hearing.
concerning the facts stated in the com- The administrative law judge shall di-
plaint or concerning the appropriate- rect the hearing clerk to notify all par-
ness of the proposed remedial order. ties of the time and location of any
The terms of any settlement agree- such conferences. At the discretion of
ment shall be expressed in a written the administrative law judge, persons
consent agreement. Conferences with other than parties may attend. At a
complainant concerning possible set- conference the administrative law
tlement shall not affect the 20 day time judge may:
limit for filing an answer under § 209.6. (1) Obtain stipulations and admis-
(b) Consent agreement. A written con- sions, receive requests and order depo-
sent agreement signed by the com- sitions to be taken, identify disputed
plainant and respondent shall be pre- issues of fact and law, and require or
pared by the complainant and for- allow the submission of written testi-
warded to the Environmental Appeals mony from any witness or party.
Board whenever settlement or com- (2) Set a hearing schedule for as
promise is proposed. A copy shall be many of the following as are deemed
served on all other parties to the pro- necessary by the administrative law
ceeding, no later than the date the con- judge:
sent agreement is forwarded to the En- (i) Oral and written statements;
vironmental Appeals Board. The con- (ii) Submission of written testimony
sent agreement shall state that, for the as required or authorized by the admin-
purpose of this proceeding, respondent istrative law judge;
(1) admits the jurisdictional allega- (iii) Oral direct and cross-examina-
tions of the complaint; (2) admits the tion of a witness;
facts as stipulated in the consent (iv) Oral argument, if appropriate;
agreement or neither admits nor denies (3) Identify matters of which official
specific factual allegations contained notice may be taken;

in the complaint; and (3) consents to (4) Consider limitation of the number
the issuance of a given remedial order. of expert and other witnesses;
166
(5) Consider the procedure to be fol- § 209.22 Other discovery.

lowed at the hearing; and
(a) Further discovery under this sec-
(6) Consider any other matter that tion shall be undertaken only upon
may expedite the hearing or aid in the order of the administrative law judge
disposition of the issue. or upon agreement of the parties, ex-
(b) The results of any conference in- cept as provided in § 209.21. The admin-
cluding all stipulations shall, if not istrative law judge shall order further
transcribed, be summarized in writing discovery only after determining:
by the administrative law judge and (1) That such discovery will not delay
made part of the record. the proceeding unreasonably;
(c) The administrative law judge, on (2) That the information to be ob-
motion or sua sponte, may request cor- tained is not obtainable voluntarily;
respondence from the parties for any of and
the objectives set forth in this section. (3) That such information is relevant
Copies of the administrative law to the subject matter of the hearing.
judge’s request and the parties’ cor- (b) The administrative law judge
respondence shall be served upon all shall order depositions upon oral ques-
parties. The administrative law judge tions only upon a showing of good
shall include such correspondence in cause and a finding that:
the record and a written summary of (1) The information sought cannot be
any stipulation or agreement reached obtained by alternative methods; or
by means of such correspondence as (2) There is a substantial reason to
provided in paragraph (b) of this believe that relevant and probative evi-
section. dence may otherwise not be preserved
for presentation by a witness at the
§ 209.21 Primary discovery (exchange hearing.
of witness lists and documents). (c) Any party to the proceeding may
(a) At a prehearing conference or make a motion or motions for an order
within some reasonable time set by the of discovery. The motion shall set
administrative law judge prior to the forth:
hearing, each party shall make avail- (1) The circumstances which require
able to the other parties the names of the discovery;
the expert and other witnesses the (2) The nature of the information ex-
pected to be discovered; and
party expects to call, together with a
(3) The proposed time and place
brief summary of their expected testi-
where it will be taken. If the adminis-
mony and copies of all documents and
trative law judge determines the mo-
exhibits which the party expects to in-
tion should be granted, he or she shall
troduce into evidence. Thereafter, wit- issue an order for the taking of such
nesses, documents, or exhibits may be discovery together with the conditions
added and summaries of expected testi- and terms thereof.
mony amended upon motion by a (d) A person’s or party’s failure to
party. comply with a discovery order may
(b) The administrative law judge, lead to the inference that the infor-
may, upon motion by a party or other mation to be discovered is adverse to
person, and for good cause shown, by the person or party who failed to
order (1) restrict or defer disclosure by provide it.
a party of the name of a witness or a
narrative summary of the expected tes- § 209.23 Trade secrets and privileged
timony of a witness, and (2) prescribe information.
other appropriate measures to protect In the presentation, admission, dis-
a witness. Any party affected by any position, and use of evidence, the ad-
such action shall have an adequate op- ministrative law judge shall preserve
portunity, once he or she learns the the confidentiality of trade secrets and
name of a witness and obtains the nar- other privileged commercial and finan-
rative summary of the witness’ ex- cial information. The confidential or

pected testimony, to prepare for the trade secret status of any information
presentation of his or her case. shall not, however, preclude its being
167
§ 209.24 40 CFR Ch. I (7–1–21 Edition)
introduced into evidence. The adminis- tional evidence such as affidavits as he

trative law judge may make such or- or she may require, or dismiss any
ders as may be necessary to consider party with prejudice, under any of the
such evidence in camera. This may in- following conditions:
clude a supplemental initial decision to (1) Failure to state a claim upon
consider questions of fact and conclu- which relief can be granted, or direct
sions regarding material issues of law, or collateral estoppel;
fact or discretion which arise out of (2) No genuine issue of material fact
that portion of the evidence which is exists and a party is entitled to judg-
confidential or which includes trade ment as a matter of law, as to all or
secrets. any part of a proceeding; or
§ 209.24 Default order. (3) Such other reasons as are just, in-
cluding failure to obey a procedural
(a) Default. Respondent may be found order of the administrative law judge.
to be in default upon failure to comply
(b) If under this section an acceler-
with a prehearing or hearing ruling of
ated decision is issued as to all the
the Administrator or the administra-
tive law judge. A respondent’s default issues and claims joined in the pro-
shall constitute an admission of all ceedings, the decision shall be treated
facts alleged in the complaint and a as the decision of the administrative
waiver of respondent’s right to a hear- law judge as provided in § 209.30.
ing on such factual allegations. The re- (c) If under this section, judgment is
medial order proposed is binding on re- rendered on less than all issues or
spondent without further proceedings claims in the proceeding, the adminis-
upon the issuance by the Environ- trative law judge shall determine what
mental Appeals Board of a final order material facts exist without substan-
issued upon default. tial controversy and what material
(b) Proposed default order. Where the facts are actually and in good faith
administrative law judge finds a de- controverted. The administrative law
fault has occurred after a request for a judge shall thereupon issue an order
hearing has been filed, the administra- specifying the facts which appear with-
tive law judge may render a proposed out substantial controversy, and the
default order to be issued against the issues and claims upon which the hear-
defaulting party. For the purpose of ap- ing will proceed.
peal pursuant to § 209.31 this order shall
be deemed to be the initial decision of § 209.26 Evidence.
the administrative law judge. (a) The official transcripts and exhib-
(c) Contents of a final order issued its, together with all papers and re-
upon default. A final order issued upon quests filed in the proceeding, shall
default shall include findings of fact, constitute the record. Evidence may be
conclusions regarding all material received at the hearing even though in-
issues of law, fact, or discretion, and admissible under the rules of evidence
the remedial order which is issued. An applicable to judicial proceedings, pro-
order issued by the Environmental Ap- vided it is relevant, competent and ma-
peals Board upon default of respondent terial and not unduly repetitious. Im-
shall constitute a final order in accord- material or irrelevant parts of an ad-
ance with the terms of § 209.33. missible document shall be segregated
[43 FR 34132, Aug. 3, 1978, as amended at 57 and excluded so far as practicable. The
FR 5345, Feb. 13, 1992] weight to be given evidence shall be de-
termined by its reliability and pro-
§ 209.25 Accelerated decision; dis- bative value.
missal. (b) Witnesses shall be examined oral-
(a) The administrative law judge, ly, under oath or affirmation, except as
upon motion of any party or sua otherwise provided in these rules of
sponte, may at any time render an ac- practice or by the administrative law
celerated decision in favor of the Agen- judge. Parties shall have the right to
cy or the respondent as to all or any cross-examine a witness who appears at

part of the proceeding, without further the hearing provided that such cross-
hearing or upon such limited addi- examination is not unduly repetitious.
168
(c) Rulings of the administrative law ing clerk and made available during
judge on the admissibility of evidence, Agency business hours for public in-
the propriety of examination and cross- spection. Any person who desires a
examination and other procedural mat- copy of the record of the hearing or
ters shall appear in the record. any part of it shall be entitled to it
(d) Parties shall automatically be upon payment of the cost.
presumed to have taken exception to (b) The official transcripts and exhib-
an adverse ruling. its, together with all papers and re-
quests filed in the proceeding, shall
§ 209.27 Interlocutory appeal.
constitute the record.
(a) An interlocutory appeal may be
taken to the Environmental Appeals § 209.29 Proposed findings, conclu-
Board either (1) with the consent of the sions.
administrative law judge where he or (a) Within 20 days of the filing of the
she certifies on the record or in writing record with the hearing clerk as pro-
that the allowance of an interlocutory
vided in § 209.28, or within such longer
appeal is clearly necessary to prevent
time as may be fixed by the adminis-
exceptional delay, expense or prejudice
trative law judge, any party may sub-
to any party or substantial detriment
mit for the consideration of the admin-
to the public interest, or (2) absent the
consent of the administrative law istrative law judge proposed findings of
judge, by permission of the Environ- fact, conclusions of law, and a proposed
mental Appeals Board. rule or order, together with briefs in
(b) Applications for interlocutory ap- support of it. Such proposals shall be in
peal of any ruling or order of the ad- writing, shall be served upon all par-
ministrative law judge may be filed ties, and shall contain adequate ref-
with the administrative law judge erences to the record and authorities
within 5 days of the issuance of the rul- relied on.
ing or order being appealed. Answers (b) The record shall show the admin-
by other parties may be filed within 5 istrative law judge’s ruling on the pro-
days of the service of such applica- posed findings and conclusions except
tions. when the administrative law judge’s
(c) Applications to file such appeals order disposing of the proceedings oth-
absent consent of the administrative erwise informs the parties of the action
law judge shall be filed with the Envi- taken by him or her thereon.
ronmental Appeals Board within 5 days
of the denial of any appeal by the ad- § 209.30 Decision of the administrative
ministrative law judge. law judge.
(d) The Environmental Appeals Board (a) The administrative law judge
will consider the merits of the appeal shall issue and file with the hearing
on the application and answers. No oral clerk his or her decision as soon as
argument will be heard nor other briefs practicable after the period for filing
filed unless the Environmental Appeals proposed findings as provided for in
Board directs otherwise. § 209.29 has expired.
(e) Except under extraordinary cir- (b) The administrative law judge’s
cumstances as determined by the ad- decision shall become the decision of
ministrative law judge, the taking of the Environmental Appeals Board (1)
an interlocutory appeal will not stay when no notice of intention to appeal
the hearing. as described in § 209.31 is filed, 30 days
[43 FR 34132, Aug. 3, 1978, as amended at 57 after its issuance, unless in the interim
FR 5345, Feb. 13, 1992] the Environmental Appeals Board shall
have taken action to review or stay the
§ 209.28 Record. effective date of the decision; or (2)
(a) Hearings shall be reported and when a notice of intention to appeal is
transcribed verbatim, stenographically filed but the appeal is not perfected as
or otherwise, and the original tran- required by § 209.31, 5 days after the pe-
script shall be part of the record and riod allowed for perfection of an appeal
the sole official transcript. Copies of has expired unless within that 5 day pe-
the record shall be filed with the hear- riod, the Environmental Appeals Board
169
§ 209.31 40 CFR Ch. I (7–1–21 Edition)
has taken action to review or stay the (d) Briefs shall not exceed 40 pages
effective date of the decision. without leave of the Environmental
(c) The administrative law judge’s Appeals Board.
decision shall include a statement of (e) The Environmental Appeals Board
findings and conclusions, as well as the may allow oral argument in its discre-
reasons or basis therefore, upon all the tion.
material issues of fact or law presented
[43 FR 34132, Aug. 3, 1978, as amended at 57
on the record and an appropriate rule
FR 5345, Feb. 13, 1992]
or order. The decision shall be sup-
ported by a preponderance of the evi- § 209.32 Review of the administrative
dence and based upon a consideration law judge’s decision in absence of
of the whole record. appeal.
(d) At any time prior to issuing his or (a) If, after the expiration of the pe-
her decision, the administrative law riod for taking an appeal under § 209.31,
judge may reopen the proceeding for no notice of intention to appeal the de-
the reception of further evidence. cision of the administrative law judge
[43 FR 34132, Aug. 3, 1978, as amended at 57 has been filed, or if filed, not perfected,
FR 5345, Feb. 13, 1992] the hearing clerk shall so notify the
Environmental Appeals Board.
§ 209.31 Appeal from the decision of (b) The Environmental Appeals
the administrative law judge.
Board, upon receipt of notice from the
(a) Any party to a proceeding may hearing clerk that no notice of inten-
appeal the administrative law judge’s tion to appeal has been filed, or if filed,
decision to the Environmental Appeals not perfected pursuant to § 209.31, may,
Board: Provided, That within 10 days on its own motion, within the time
after the administrative law judge’s de- limits specified in § 209.30(b), review the
cision is issued, the party files a notice decision of the administrative law
of intention to appeal, and within 30 judge. Notice of the Environmental Ap-
days of the decision the party files an peals Board’s intention to review the
appeal brief. decision of the administrative law
(b) When an appeal is taken from the judge shall be given to all parties and
decision of the administrative law shall set forth the scope of such review
judge, any party may file a brief with and the issues which shall be consid-
respect to such appeal. The brief shall ered and shall make provision for filing
be filed within 20 days of the date of of briefs.
the filing of the appellant’s brief.
(c) Any brief filed under this section [57 FR 5345, Feb. 13, 1992]
shall contain, in the order indicated:
§ 209.33 Decision on appeal or review.
(1) A subject index of the matter in
the brief, with page references, and a (a) Upon appeal from or review of the
table of cases (alphabetically ar- administrative law judge’s decision,
ranged), textbooks, statutes, and other the Environmental Appeals Board shall
material cited, with page references consider such parts of the record as are
thereto; cited or as may be necessary to resolve
(2) A specification of the issues which the issues presented and, in addition
will be argued; shall to the extent necessary or desir-
(3) The argument presenting clearly able exercise all the powers which the
the points of fact and law relied upon Environmental Appeals Board could
in support of the position taken on have exercised if it had presided at the
each issue, with specific page ref- hearing.
erences to the record and the legal or (b) The Environmental Appeals Board
other material relied upon; and shall render a decision as expeditiously
(4) A proposed form of rule or order as possible. The Environmental Ap-
for the Environmental Appeals Board’s peals Board shall adopt, modify, or set
consideration if different from the rule aside the findings, conclusions, and
or order contained in the administra- rule or order contained in the decision
tive law judge’s decision. of the administrative law judge and
170
shall set forth in its decision a state- § 209.30 has expired, and the Environ-
ment of the reasons or bases for its ac- mental Appeals Board does not move to
tion. The Environmental Appeals review such decision, the hearing will
Board’s decision shall be the final order be deemed to have ended at the expira-
in the proceeding. tion of all periods allowed for such ap-
(c) In those cases where the Environ- peal and review.
mental Appeals Board determines that (b) If an appeal of the administrative
it should have further information or law judge’s decision is taken under
additional views of the parties as to § 209.31, or if, in the absence of such ap-
the form and content of the rule or peal, the Environmental Appeals Board
order to be issued, the Environmental moves to review the decision of the ad-
Appeals Board, in its discretion, may ministrative law judge under § 209.32,
withhold final action pending the re- the hearing will be deemed to have
ceipt of such additional information or ended upon the rendering of a final de-
views, or may remand the case to the cision by the Environmental Appeals
administrative law judge. Board.
[57 FR 5345, Feb. 13, 1992] [57 FR 5346, Feb. 13, 1992]
§ 209.34 Reconsideration. § 209.36 Judicial review.

Within five (5) days after service of (a) The Administrator hereby des-
the Environmental Appeals Board’s de- ignates the general counsel, Environ-
cision, any party may file a petition mental Protection Agency as the offi-
for reconsideration of such decision, cer upon whom copy of any petition for
setting forth the relief desired and the judicial review shall be served. That of-
grounds in support thereof. Petitions ficer shall be responsible for filing in
for reconsideration under this provi- the court the record on which the order
sion shall be directed to, and decided of the Environmental Appeals Board is
by, the Environmental Appeals Board. based.
Petitions for reconsideration directed (b) Before forwarding the record to
to the Administrator, rather than to the court, the Agency shall advise the
the Environmental Appeals Board, will petitioner of the costs of preparing it
not be considered, except in cases that and as soon as payment to cover fees is
the Environmental Appeals Board has made shall forward the record to the
referred to the Administrator’s pursu- court.
ant to § 209.3(k) and in which the Ad- [43 FR 34132, Aug. 3, 1978, as amended at 57
ministrator has issued the final order. FR 5346, Feb. 13, 1992]
Any petition filed under this sub-
section must be confined to new ques- PART 210—PRIOR NOTICE OF
tions raised by the decision or final
order and upon which the petitioner
CITIZEN SUITS
had no opportunity to argue before the
Sec.
administrative law judge or the Envi- 210.1 Purpose.
ronmental Appeals Board. Any party 210.2 Service of notice.
desiring to oppose a petition shall file 210.3 Contents of notice.
an answer thereto within five (5) days AUTHORITY: Sec. 12, Noise Control Act,
after service of the petition. The filing (Pub. L. 92–574, 86 Stat. 1234).
of a petition for reconsideration shall
SOURCE: 39 FR 36011, Oct. 7, 1974, unless
not operate to stay the effective date
otherwise noted.
of the decision or order.
[57 FR 5345, Feb. 13, 1992] § 210.1 Purpose.
Section 12 of the Noise Control Act
§ 209.35 Conclusion of hearing. authorizes any person to commence a
(a) If no appeal has been taken from civil action on his own behalf to en-
the administrative law judge’s decision force the Act or to enforce certain re-
before the period for taking an appeal quirements promulgated pursuant to
under § 209.31 has expired, and the pe- the Act. The purpose of this part is to
riod for review by the Environmental prescribe procedures governing the
Appeals Board on its own motion under manner of giving notices as required by
171
§ 210.2 40 CFR Ch. I (7–1–21 Edition)
subsection 12(b) of the Act (Pub. L. 92– (3) If the alleged violator is a Federal
574, 86 Stat. 1234) as a prerequisite to agency, service of notice shall be ac-
the commencement of such actions. complished by registered mail, return
receipt requested, addressed to, or by
§ 210.2 Service of notice. personal service upon, the head of such
(a) Notice of intent to file suit pursu- agency. A copy of such notice shall be
ant to section 12(a)(1) of the Act shall mailed to the Administrator of the En-
be served upon an alleged violator of a vironmental Protection Agency, the
noise control requirement issued under Regional Administrator of the Envi-
the Act in the following manner: ronmental Protection Agency for the
(1) If the alleged violator is a private region in which such violation is al-
individual or a corporation, service of leged to have occurred, the Attorney
notice shall be accomplished by reg- General of the United States; and in
istered mail, return receipt requested, the case of a violation of a noise con-
addressed to, or by personal service trol requirement under section 611 of
upon, the owner or managing agent of the Federal Aviation Act, to the Ad-
the equipment, plant, facility, vehicle, ministrator of the Federal Aviation
or activity alleged to be in violation. A Administration, and the Regional Ad-
copy of the notice shall be mailed to ministrator of the Federal Aviation
the Administrator of the Environ- Administration for the region in which
mental Protection Agency, the Re- such violation is alleged to have
gional Administrator of the Environ- occurred.
mental Protection Agency for the re- (b) Service of notice of intent to file
gion in which such violation is alleged suit pursuant to section 12(a)(2)(A) of
to have occurred; and in the case of a the Act shall be accomplished by reg-
violation of a noise control require- istered mail, return receipt requested,
ment under section 611 of the Federal addressed to, or by personal service
Aviation Act, to the Administrator of upon, the Administrator, Environ-
the Federal Aviation Administration, mental Protection Agency, Wash-
and the Regional Administrator of the ington, DC 20460. A copy of such notice
Federal Aviation Administration for shall be mailed to the Attorney Gen-
the region in which such violation is eral of the United States.
alleged to have occurred. If the alleged
(c) Service of notice of intent to file
violator is a corporation, a copy of
suit pursuant to section 12(a)(2)(B) of
such notice also shall be mailed to the
the Act shall be accomplished by reg-
registered agent, if any, of such cor-
istered mail, return receipt requested,
poration in the State in which such
addressed to, or by personal service
violation is alleged to have occurred.
(2) If the alleged violator is a State upon, the Administrator, Federal Avia-
or local government entity, service of tion Administration, Washington, DC.
notice shall be accomplished by reg- A copy of such notice shall be mailed
istered mail, return receipt requested, to the Attorney General of the United
addressed to, or by personal service States, and to the Administrator of the
upon, the head of such agency. A copy Environmental Protection Agency.
of such notice shall be mailed to the (d) Notice given in accordance with
Administrator of the Environmental the provisions of this part shall be
Protection Agency, the Regional Ad- deemed to have been served on the date
ministrator of the Environmental Pro- of receipt. If service was accomplished
tection Agency for the region in which by mail, the date of receipt will be
such violation is alleged to have oc- deemed to be the date noted on the re-
curred; and in the case of a violation of turn receipt card.
a noise control requirement under sec-
tion 611 of the Federal Aviation Act, to § 210.3 Contents of notice.
the Administrator of the Federal Avia- (a) Violation of noise control require-
tion Administration, and the Regional ment. Notice regarding an alleged vio-
Administrator of the Federal Aviation lation of a noise control requirement
Administration for the region in which shall include sufficient information to

such violation is alleged to have permit the recipient to identify the
occurred. specific standard or regulation alleged
172
to have been violated, the activity al- 211.204 Hearing protector labeling require-
leged to constitute a violation, the per- ments.
son or persons responsible for the al- 211.204–1 Information content of primary
label.
leged violation, the location of the al- 211.204–2 Primary label size, print and color.
leged violation, the date or dates of 211.204–3 Label location and type.
such violation and the full name, ad- 211.204–4 Supporting information.
dress, and telephone number of the per- 211.205 Special claims.
son giving notice. 211.206 Methods for measurement of sound
(b) Failure to act. Notice regarding an attenuation.
211.206–1 Real ear method.
alleged failure of the Administrator of
211.206–2 Alternative test data.
the Environmental Protection Agency 211.206–3—211.206–10 Alternative test meth-
to perform any act or duty under the ods. [Reserved]
Noise Control Act which is not discre- 211.207 Computation of the noise reduction
tionary with such Administrator or no- rating (NRR).
tice regarding an alleged failure of the 211.208 Export provisions.
Administrator of the Federal Aviation 211.210 Requirements.
211.210–1 General requirements.
Administration to perform any act or 211.210–2 Labeling requirements.
duty under section 611 of the Federal 211.211 Compliance with labeling require-
Aviation Act which is not discre- ment.
tionary with such Administrator shall 211.212 Compliance audit testing.
identify the statutory provision which 211.212–1 Test request.
requires such act or creates such duty, 211.212–2 Test hearing protector selection.
shall describe with reasonable speci- 211.212–3 Test hearing protector prepara-
tion.
ficity the action taken or not taken by 211.212–4 Testing procedures.
such Administrator which is alleged to 211.212–5 Reporting of test results.
constitute a failure to perform such act 211.212–6 Determination of compliance.
or duty, and shall state the full name, 211.212–7 Continued compliance testing.
address, and telephone number of the 211.212–8 Relabeling requirements.
person giving the notice. 211.213 Remedial orders for violations of
these regulations.
(c) Identification of Counsel. The no-
211.214 Removal of label.
tice shall state the name, address, and
APPENDIX A TO PART 211—COMPLIANCE AUDIT
telephone number of the legal counsel,
TESTING REPORT
if any, representing the person giving
the notice. SOURCE: 44 FR 56127, Sept. 28, 1979, unless
otherwise noted.
PART 211—PRODUCT NOISE

LABELING Subpart A—General Provisions
Subpart A—General Provisions AUTHORITY: Sec. 8, Noise Control Act of

1972, (42 U.S.C. 4907), and other authority as
Sec. specified.
211.102 Definitions. § 211.101 Applicability.
211.103 Number and gender. The provisions of subpart A apply to
211.104 Label content. all products for which regulations are
211.105 Label format. published under part 211 and manufac-
211.106 Graphical requirements.
tured after the effective date of this
211.107 Label type and location.
211.108 Sample label. regulation, unless they are made inap-
211.109 Inspection and monitoring. plicable by product-specific regula-
211.110 Exemptions. tions.
211.110–1 Testing exemption.
211.110–2 National security exemptions. § 211.102 Definitions.
211.110–3 Export exemptions. (a) All terms that are not defined in
211.111 Testing by the Administrator. this subpart will have the meaning
given them in the Act.
Subpart B—Hearing Protective Devices (b) Act means the Noise Control Act
211.201 Applicability. of 1972 (Pub. L. 92–574, 86 Stat. 1234).

211.202 Effective date. (c) Administrator means the Adminis-
211.203 Definitions. trator of the Environmental Protection
173
§ 211.103 40 CFR Ch. I (7–1–21 Edition)
Agency or his authorized representa- § 211.104 Label content.

tive. The following data and information
(d) Agency means the United States must be on the label of all products for
Environmental Protection Agency. which regulations have been published
(e) Acoustic descriptor means the nu- under this part:
meric, symbolic, or narrative informa- (a) The term ‘‘Noise Rating’’ if the
tion describing a product’s acoustic product produces noise, or the term
properties as they are determined ac- ‘‘Noise Reduction Rating’’ if the prod-
cording to the test methodology that uct reduces noise;
the Agency prescribes. (b) The acoustic rating descriptor
(f) Export exemption means an exemp- that is determined according to proce-
tion from the prohibitions of section dures specified in the regulations that
10(a) (3) and (4) of the Act; this type of will be published under this part;
exemption is granted by statute under (c) Comparative acoustic rating in-
section 10(b)(2) of the Act for the pur- formation, which EPA will specify in
pose of exporting regulated products. the regulations published under this
(g) National security exemption means part;
an exemption from the prohibitions of (d) A product manufacturer identi-
section 10(a) (3) and (5) of the Act, fication consisting of: (1) The Company
which may be granted under section name, and (2) The City and State of the
10(b)(1) of the Act in cases involving principal office;
national security. (e) A product model number or type
(h) Product means any noise-pro- identification;
ducing or noise-reducing product for (f) The phrase ‘‘Federal law prohibits
which regulations have been promul- removal of this label prior to pur-
gated under part 211; the term includes chase’’;
‘‘test product’’. (g) The U.S. Environmental Protec-
(i) Regulations published under this tion Agency logo, as shown in Figure 1;
part means all subparts to part 211. (h) The phrase ‘‘Label Required by
U.S. EPA regulation 40 CFR part 211,
(j) Testing exemption means an exemp-
subpart lll.’’
tion from the prohibitions of section
10(a) (1), (2), (3), and (5) of the Act,
which may be granted under section
10(b)(1) of the Act for research, inves-
tigations, studies, demonstrations, or
training, but not for national security.
(k) Test product means any product
that must be tested according to regu-
lations published under part 211.
§ 211.103 Number and gender. § 211.105 Label format.

In this part, words in the singular (a) Unless specified otherwise in
will be understood to include the plu- other regulations published under this
ral, and words in the masculine gender part, the format of the label must be as
will be understood to include the femi- shown in Figure 2. The label must in-
nine, and vice versa, as the case may clude all data and information required
require. under § 211.104.
174
EC01FE92.055</MATH>
(b) Unless EPA specifies otherwise in terial surrounding the label so that the
regulations published under this part, label and the information within it are
the required data and information clearly visible and legible.
specified in § 211.104 (a) through (h) (b) Label Size. The prescribed label
must be located in the following areas must be sized as specified in regula-
of the prescribed label (see Figure 2 of tions published under this part.
this section): (c) Character Style. Except when spec-
(1) Section 211.104 (a)—Area A. ified otherwise in this part, all letters
(2) Section 211.104 (b)—Area B. and numerals that appear on the pre-
(3) Section 211.104 (c)—Area C. scribed label must be Helvetica Me-
(4) Section 211.104 (d)—Area D. dium.
(5) Section 211.104 (e)—Area E. (d) Character Size. All letters and nu-
(6) Section 211.104 (f)—Area F. merals that appear on the prescribed
(7) Section 211.104 (g)—Area G. label must be sized as specified in regu-
(8) Section 211.104 (h)—Area H. lations published under this part.
§ 211.106 Graphical requirements. § 211.107 Label type and location.

(a) Color. Unless EPA requires other- The prescribed label must be of the
wise, the product manufacturer or sup- type and in the location specified in
plier must determine the colors used regulations published under this part.
for the label background, borders, and
all included letters, numerals, and fig- § 211.108 Sample label.
ures. However, the colors on the label Examples of labels conforming to the
must contrast sufficiently with each requirements of §§ 211.104, 211.105, and
other and with any information or ma- 211.106 are presented in Figure 3.
175
EC01FE92.056</MATH>
§ 211.109 40 CFR Ch. I (7–1–21 Edition)
§ 211.109 Inspection and monitoring. (i) Inspect and monitor the manufac-
ture and assembly, selection, storage,
(a) Any inspecting or monitoring ac-
preconditioning, noise testing, and
tivities that EPA conducts under this
maintenance of test products, and to
part with respect to the requirements
set out in regulations published under verify the correlation or calibration of
this part, will be for the purpose of de- test equipment;
termining: (ii) Inspect products before they are
(1) Whether test products are being distributed in commerce;
selected and prepared for testing in ac- (iii) Inspect and make copies of any
cordance with the provisions of the records, reports, documents, or infor-
regulations; mation that the manufacturer must
(2) Whether test product testing is maintain or provide to the Adminis-
being conducted according to the provi- trator under the Act or under any pro-
sions of those regulations; and vision of this part;
(3) Whether products that are being (iv) Inspect and photograph any part
produced and distributed into com- or aspect of any product and any com-
merce comply with the provisions of ponents used in manufacturing the
those regulations. product that is reasonably related to
(b) The Director of the Noise Enforce- the purpose of this entry; and
ment Division may request that a man- (v) Obtain from those in charge of the
ufacturer who is subject to this part facility or site any reasonable assist-
admit an EPA Enforcement Officer ance that he may request to enable
during operating hours to any of the him to carry out any function listed in
following: this section.
(1) Any facility or site where any (2) The provisions of this section
product to be distributed into com- apply whether the facility or site is
merce is manufactured, assembled, or owned or controlled by the manufac-
stored; turer, or by someone who acts for the
(2) Any facility or site where the manufacturer.
manufacturer performed or performs (d) For the purposes of this section:
any tests conducted under this part or (1) An ‘‘EPA Enforcement Officer’’ is
any procedures or activities connected an employee of the EPA Office of En-
with those tests; forcement. When he arrives at a facil-
(3) Any facility or site where any test ity or site, he must display the creden-
product is located. tials that identify him as an employee
(c)(1) Once an EPA Enforcement Offi- of the EPA and a letter signed by the
cer has been admitted to a facility or Director of the Noise Enforcement Di-
site, that officer will not be authorized vision designating him to make the in-
to do more than the following: spection.
176
EC01FE92.057</MATH>
(2) Where test product storage areas (b) No request for a testing exemp-
or facilities are concerned, ‘‘operating tion is required.
hours’’ means all times during which (c) For purposes of section 11(d) of
personnel, other than custodial per- the Act, any testing exemption shall be
sonnel, are at work in the vicinity of void ab initio with respect to each new
the area or facility and have access to product, originally intended for re-
it. search, investigations, studies, dem-
(3) Where other facilities or areas are onstrations, or training, but distrib-
concerned, ‘‘operating hours’’ means uted in commerce for other uses.
all times during which products are [47 FR 57716, Dec. 28, 1982]
being manufactured or assembled; or
all times during which products are § 211.110–2 National security exemp-
being tested or maintained; or records tions.
are being compiled; or when any other (a) A new product which is produced
procedure or activity related to label- to conform with specifications devel-
ing, selective enforcement auditing, or oped by national security agency, and
product manufacture or assembly being so labeled or marked on the outside of
carried out. the container and on the product itself,
(4) ‘‘Reasonable assistance’’ means shall be exempt from the prohibitions
providing timely and unobstructed ac- of sections 10(a), (1), (2), (3), and (5) of
cess to test products or to products and the Act.
records that are required by this part, (b) No request for a national security
and the means for copying those exemption is required.
records or the opportunity to test the (c) For purposes of section 11(d) of
test products. the Act, any national security exemp-
(e) The manufacturer must admit an tion shall be void ab initio with respect
EPA Enforcement Officer who presents to each new product, originally in-
a warrant authorizing entry to a facil- tended for a national security agency,
ity or site. If the EPA officer does not but distributed in commerce for other
have the warrant, he may enter a facil- uses.
ity or site only if the manufacturer [47 FR 57716, Dec. 28, 1982]
consents.
(1) It is not a violation of this regula- § 211.110–3 Export exemptions.
tion or the Act if anyone refuses to (a) A new product intended solely for
allow an officer without a warrant to export, and which has satisfied the re-
enter the site. quirements of other applicable regula-
(2) The Administrator or his designee tions of this part, will be exempt from
may proceed ex parte (without the the prohibitions of section 10(a) (3) and
other party’s knowledge) to obtain a (4) of the Act.
warrant whether or not the manufac- (b) Requests for an export exemption
turer has refused entry to an EPA En- are not required.
forcement Officer. (c) For purposes of section 11(d) of
(Secs. 11 and 13, Pub. L. 92–574, 86 Stat. 1242, the Noise Control Act, the Adminis-
1244 (42 U.S.C. 4910, 4912)) trator may consider any export exemp-
tion under section 10(b)(2) void from
[44 FR 56127, Sept. 28, 1979, as amended at 47 the beginning if a new product, in-
FR 57716, Dec. 28, 1982]
tended only for export, is distributed in
§ 211.110 Exemptions. commerce in the United States.
(Sec. 10(b)(2), Pub. L. 92–574, 86 Stat. 1242 (42
§ 211.110–1 Testing exemption. U.S.C. 4909(b)(2)))
(a) A new product intended to be used [44 FR 56127, Sept. 28, 1979, as amended at 47
solely for research, investigations, FR 57716, Dec. 28, 1982]
studies, demonstrations or training,
and so labeled or marked on the out- § 211.111 Testing by the Administrator.
side of the container and on the (a)(1) To determine whether products
produce itself, shall be exempt from conform to applicable regulations

the prohibitions of sections 10(a), (1), under this part, the Administrator may
(2), (3), and (5) of the Act. require that any product that is to be
177
§ 211.201 40 CFR Ch. I (7–1–21 Edition)
tested under applicable regulations in (c)(1) The Administrator will assume

this part, or any other products that all reasonable costs associated with
are regulated under this part, be sub- shipment of products to the place des-
mitted to him, at a place and time that ignated pursuant to paragraph (a) of
he designates, to conduct tests on them this section, except with respect to:
in accordance with the test procedures (i) [Reserved]
described in the regulations. (ii) Testing of a reasonable number of
(2) The Administrator may specify products for purposes of compliance
that he will conduct the testing at the audit testing under the Section titled
facility where the manufacturer con- Compliance Audit Testing of the prod-
ducted required testing. The Adminis- uct-specific Subpart, or if the manufac-
trator will conduct the tests with his turer has failed to establish that there
own equipment. is a correlation between his test facil-
(b)(1) If, from the tests conducted by ity and the EPA test facility or the Ad-
the Administrator, or other relevant ministrator has reason to believe, and
information, the Administrator deter- provides the manufacturer with a
mines that the test facility used by the statement or reasons, that the prod-
manufacturer(s) does not meet the re- ucts to be tested would fail to meet
quirements of this part for conducting their verification level if tested at the
the test required by this part, he will EPA test facility, but would meet the
notify the manufacturer(s) in writing level if tested at the manufacturer’s
of his determination and the reasons test facility;
for it. (iii) Any testing performed during a
(2) After the Administrator has noti- period when a notice issued under para-
fied the manufacturer, EPA will not graph (b) of this section, is in effect;
accept any data from the subject test and
facility for the purposes of this part, (iv) Any testing performed at place
and the Administrator may issue an other than the manufacturer’s facility
order to the manufacturer(s) to cease as a result of the manufacturer’s fail-
to distribute in commerce products ure to permit the Administrator to
that come from the product categories conduct or monitor testing as required
in question. However, any such order by this part.
shall be issued only after an oppor- (Secs. 11 and 13, Pub. L. 92–574, 86 Stat. 1243
tunity for a hearing. Notification of (42 U.S.C. 4910, 4912))
this opportunity may be included in a
notification under paragraph (b)(1) of FR 57716, Dec. 28, 1982]
this section. A manufacturer may re-
quest that the Administrator grant a
hearing. He must make this request no Subpart B—Hearing Protective
later than fifteen (15) days (or any Devices
other period the Administrator allows)
after the Administrator has notified AUTHORITY: Sec. 8, Pub. L. 92–574, 86 Stat.
the manufacturer that he intends to 1241 (42 U.S.C. 4907), and additional authority
issue an order to cease to distribute. as specified.
(3) A manufacturer may request in SOURCE: 44 FR 56139, Sept. 28, 1979, unless
writing that the Administrator recon- otherwise noted.
sider his determination in paragraph
(b)(1) of this section, if he can provide § 211.201 Applicability.
data or information which indicates Unless this regulation states other-
that changes have been made to the wise, the provisions of this subpart
test facility, and that those changes apply to all hearing protective devices
have remedied the reason for disquali- manufactured after the effective date
fication. of this regulation. (See § 211.203(m) for
(4) The Administrator will notify a definition of ‘‘hearing protective
manufacturer of his decision con- device.’’)
cerning requalifying the test facility
within 10 days of the time the manu- § 211.202 Effective date.

facturer requested reconsideration Manufacturers of hearing protectors
under paragraph (b)(3) of this section. must comply with the requirements set
178
forth in this part for all hearing pro- like headband to which the enclosures
tective devices manufactured on or are attached.
after September 27, 1980. (l) Headband. The component of hear-
ing protective device which applies
§ 211.203 Definitions. force to, and holds in place on the
(a) As used in subpart B, all terms head, the component which is intended
not defined here have the meaning to acoustically seal the ear canal.
given them in the Act or in subpart A (m) Hearing Protective Device. Any de-
of Part 211. vice or material, capable of being worn
(b) ANSI Z24.22–1957. A measurement on the head or in the ear canal, that is
procedure published by the American sold wholly or in part on the basis of
National Standards Institute (ANSI) its ability to reduce the level of sound
for obtaining hearing protector attenu- entering the ear. This includes devices
ation values at nine of the one-third of which hearing protection may not be
octave band center frequencies by the primary function, but which are
using pure tone stimuli presented to nonetheless sold partially as providing
ten different test subjects under an- hearing protection to the user. This
echoic conditions. term is used interchangeably with the
(c) ANSI S3.19–1974. A revision of the terms, ‘‘hearing protector’’ and
ANSI Z24.22–1957 measurement proce- ‘‘device.’’
dure using one-third octave band stim- (n) Impulsive Noise. An acoustic event
uli presented under diffuse (rever- characterized by very short rise time
berant) acoustic field conditions. and duration.
(d) Carrying Case. The container used
(o) Label. That item, as described in
to store reusable hearing protectors.
this regulation, which is inscribed on,
(e) Category. A group of hearing pro-
affixed to or appended to a product, its
tectors which are identical in all as-
packaging, or both for the purpose of
pects to the parameters listed in
§ 211.210–2(c). giving noise reduction effectiveness in-
(f) Claim. An assertion made by a formation appropriate to the product.
manufacturer regarding the effective- (p) Manufacturer. As stated in the Act
ness of his product. ‘‘means any person engaged in the
(g) Custom-molded device. A hearing manufacturing or assembling of new
protective device that is made to con- products, or the importing of new prod-
form to a specific ear canal. This is ucts for resale, or who acts for, and is
usually accomplished by using a controlled by, any such person in con-
moldable compound to obtain an im- nection with the distribution of such
pression of the ear and ear canal. The products.’’
compound is subsequently permanently (q) Noise Reduction Rating (NRR). A
hardened to retain this shape. single number noise reduction factor in
(h) Dispenser. The permanent (in- decibels, determined by an empirically
tended to be refilled) or disposable (dis- derived technique which takes into ac-
carded when empty) container designed count performance variation of protec-
to hold more than one complete set of tors in noise reducing effectiveness due
hearing protector(s) for the express to differing noise spectra, fit varia-
purpose of display to promote sale or bility and the mean attenuation of test
display to promote use or both. stimuli at the one-third octave band
(i) Disposable Device. A hearing pro- test frequencies.
tective device that is intended to be (r) Octave Band Attenuation. The
discarded after one period of use. amount of sound reduction determined
(j) Ear Insert Device. A hearing pro- according to the measurement proce-
tective device that is designed to be in- dure of § 211.206 for one-third octave
serted into the ear canal, and to be bands of noise.
held in place principally by virtue of (s) Over-the-Head Position. The mode
its fit inside the ear canal. of use of a device with a headband, in
(k) Ear Muff Device. A hearing protec- which the headband is worn such that
tive device that consists of two acous- it passes over the user’s head. This is
tic enclosures which fit over the ears contrast to the behind-the-head and
and which are held in place by a spring- under-the-chin positions.
179
§ 211.204 40 CFR Ch. I (7–1–21 Edition)
(t) Package. The container in which a § 211.204 Hearing protector labeling

hearing protective device is presented requirements.
for purchase or use. The package in All provisions of subpart A apply to
some cases may be the same as the this subpart except as otherwise noted.
carrying case.
(u) Primary Panel. The surface that is § 211.204–1 Information content of
considered to be the front surface or primary label.
that surface which is intended for ini- The information to appear on the
tial viewing at the point of ultimate primary label must be according to
sale or the point of distribution for use. § 211.104 of subpart A except as stated
(v) Spectral uncertainty. Possible vari- here and shown in Figure 1 of § 211.204–
ation in exposure to the noise spectra 2:
in the workplace. (To avoid the under- (a) Area A must state ‘‘Noise Reduc-
protection that would result from tion Rating.’’
these variations relative to the as- (b)(1) Area B must state the value of
sumed ‘‘Pink Noise’’ used to determine the Noise Reduction Rating (NRR) in
the NRR, an extra three decibel re- decibels for that model hearing pro-
duction is included when computing tector. The value stated on the label
the NRR.) must be no greater than the NRR value
(w) Tag. Stiff paper, metal or other determined by using the computation
hard material that is tied or otherwise method of § 211.207 of this subpart.
affixed to the packaging of a protector. (2) For devices with headbands that
are intended for use with the headband
(x) Test Facility. For this subpart, a
in different positions, the worst case
laboratory that has been set up and
NRR must be specified. The top of Area
calibrated to conduct ANSI Std S3.19–
B must state the position(s) associated
1974 tests on hearing protective de- with that NRR. The other positions
vices. It must meet the applicable re- and the respective NRRs must be in-
quirements of these regulations. cluded with the supporting information
(y) Test Hearing Protector. A hearing specified in § 211.204–4.
protector that has been selected for (c) Area C must contain the state-
testing to verify the value to be put on ment ‘‘The range of Noise Reduction
the label, or which has been designated Ratings for existing hearing protectors
for testing to determine compliance of is approximately 0 to 30 (higher num-
the protector with the labeled value. bers denote greater effectiveness).’’
(z) Test Request. A request submitted (d) At the bottom of Area A-B, there
to the manufacturer by the Adminis- must be the phrase ‘‘(When used as
trator that will specify the hearing directed).’’
protector category, and test sample
size to be tested according to § 211.212– FR 8275, Feb. 6, 1980]
1, and other information regarding the
audit. § 211.204–2 Primary label size, print
(aa) Random Incident Field. A sound and color.
field in which the angle of arrival of The primary label characteristics are
sound at a given point in space is ran- the same as those specified in §§ 211.105
dom in time. and 211.106 of subpart A except as
(bb) Real-Ear Protection at Threshold. stated here.
The mean value in decibels of the oc- (a) The label must be no smaller than
cluded threshold of audibility (hearing 3.8 centimeters by 5.0 centimeters (cm)
protector in place) minus the open (approximately 1.5 inches by 2.0
threshold of audibility (ears open and inches).
uncovered) for all listeners on all trials (b) The minimum type face size for
under otherwise identical test condi- each area shall be as follows, based
tions. upon a scale of 72 points = 1 inch:
(cc) Reverberation Time. The time that (1) Area A—2.8 millimeters (mm) or 8
would be required for the mean-square point.
sound pressure level, originally in a (2) Area B—7.6 mm or 22 point for the
steady state, to fall 60 dB after the Rating;—1.7 mm or 5 point for
source is stopped. ‘‘Decibels’’.
180
(3) Area A-B—1.5 mm or 4 point. (i) If the primary panel of the pack-
(4) Area C—1.5 mm or 4 point. age has dimensions greater than 3.8 ×
(5) Area D—0.7 mm or 2 point. 5.0 cm (approximately 11⁄2 × 2 in) the
(6) Area E—0.7 mm or 2 point. label must be presented on the primary
(7) Area F—0.7 mm or 2 point. panel.
(8) Area H—0.7 mm or 2 point. (ii) If the primary panel of the pack-
age is equal to or smaller than 3.8 × 5.0
These type face sizes apply to the 3.8 centimeters, a label at least 3.8 × 5.0
cm × 5.0 cm label; type face sizes for centimeters must be affixed to the
larger labels must be in the same ap- package by means of a tag.
proximate proportion to the label as
(2) If the protector is displayed at the
those specified for the 3.8 cm × 5.0 cm
point of ultimate purchase or distribu-
label.
tion to prospective users in a perma-
(c) The use of upper and lower case nent or disposable bulk container or
letters and the general appearance of dispenser, even if the protector is indi-
the label must be similar to the exam- vidually packaged within the dispenser
ple in Figure (1). and labeled as above, the container or
dispenser itself must be labeled. The
label must be readily visible to the ul-
timate purchaser or prospective user.
§ 211.204–4 Supporting information.

The following minimum supporting
information must accompany the de-
vice in a manner that insures its avail-
ability to the prospective user. In the
case of bulk packaging and dispensing,
such supporting information must be
affixed to the bulk container or dis-
penser in the same manner as the label,
and in a readily visible location.
(a) The mean attenuation and stand-
ard deviation values obtained for each
test frequency according to § 211.206,
(d) The color of the label must be as and the NRR calculated from those val-
specified in subpart A. ues. For ‘‘muff’’ type protectors with
[44 FR 56127, Sept. 28, 1979, as amended at 45 various use positions, the positions
FR 8275, Feb. 6, 1980] providing higher NRR values shall be
identified, and their associated NRR
§ 211.204–3 Label location and type. values listed in bold type.
(b) The following statement, example
(a) The manufacturer labeling the
and cautionary note: ‘‘The level of
product for ultimate sale or use selects
noise entering a person’s ear, when
the type of label and must locate it as
hearing protector is worn as directed,
follows:
is closely approximated by the dif-
(1) Affixed to the device or its car-
ference between the A-weighted envi-
rying case; and
ronmental noise level and the NRR.
(2) Affixed to primary panel of the
product packaging if the label com-
Example
plying with § 211.204–3(a)(1) is not visi-
ble at the point of ultimate purchase or 1. The environmental noise level as meas-
the point of distribution to users. ured at the ear is 92 dBA.
2. The NRR is (value on label) decibels
(b) Labeling with a minimum sized
(dB).
label will occur as follows: 3. The level of noise entering the ear is ap-
(1) If the protector is individually proximately equal to [92 dB(A)—NRR] dB(A).
packaged and so displayed at the point CAUTION: For noise environments domi-
of ultimate purchase or distribution to nated by frequencies below 500 Hz the C-

the prospective user, the package must weighted environmental noise level should
be labeled as follows: be used.’’
181
EC01FE92.058</MATH>
§ 211.205 40 CFR Ch. I (7–1–21 Edition)
(c) The month and year of produc- be applicable. These sections describe
tion, which may be in the form of a se- the ‘‘Real Ear Method.’’ Other portions
rial number or a code in those in- of the standard are not applicable in
stances where the records specified in this section.
§ 211.209(a)(1)(iv) are maintained; (1) The sound field characteristics
(d) The following statement: ‘‘Im- described in paragraph 3.1.1.3 are
proper fit of this device will reduce its ‘‘required.’’
effectiveness in attenuating noise. Con- (2) Sections 3.3.2 and 3.3.3 shall be ac-
sult the enclosed instructions for complished in this order during the
proper fit’’; same testing session. Any breaks in
(e) Instructions as to the proper in- testing should not allow the subject to
sertion or placement of the device; and engage in any activity that may cause
(f) The following statement: ‘‘Al- a Temporary Threshold Shift.
though hearing protectors can be rec- (3) Section 3.3.3.1(1) shall not apply.
ommended for protection against the Only ‘‘Experimenter fit’’ described in
harmful effects of impulsive noise, the Section 3.3.3.1(2) is permitted.
Noise Reduction Rating (NRR) is based (4) Section 3.3.3.3 applies to all de-
on the attenuation of continuous noise vices except custom-molded devices.
and may not be an accurate indicator
When testing custom-molded devices,
of the protection attainable against
each test subject must receive his own
impulsive noise such as gunfire.’’
device molded to fit his ear canal.
FR 8275, Feb. 6, 1980] [44 FR 56139, Sept. 28, 1979, as amended at 45
FR 8275, Feb. 6, 1980]
§ 211.205 Special claims.
§ 211.206–2 Alternative test data.
(a) Any manufacturer wishing to
make claims regarding the acoustic ef- (a) In lieu of testing according to
fectiveness of a device, other than the § 211.206–1, manufacturers may use the
Noise Reduction Rating, must be pre- latest available test data obtained ac-
pared to demonstrate the validity of cording to ANSI STD Z24.22–1957 or
such claims. ANSI STD S3.19–1974 to determine the
(b) [Reserved] mean attenuation and standard devi-
ation for each test frequency and the
[44 FR 56139, Sept. 28, 1979, as amended at 47 NRR calculated from those values.
FR 57716, Dec. 28, 1982]
Manufacturers whose data is based on
§ 211.206 Methods for measurement of the ANSI STD Z24.22–1957 measurement
sound attenuation. procedure must state in the supporting
information required by § 211.204–4 that
§ 211.206–1 Real ear method. the mean attenuation and standard
(a) The value of sound attenuation to deviation values used to calculate the
be used in the calculation of the Noise NRR are based on ANSI STD Z24.22–
Reduction Rating must be determined 1957.
according to the ‘‘Method for the Meas- (b) Manufacturers who initially use
urement of Real-Ear Protection of available data based on ANSI STD
Hearing Protectors and Physical At- Z24.22–1957 must retest within one year
tenuation of Earmuffs.’’ This standard of the effective date of this regulation
is approved as the American National (by September 27, 1981) the affected
Standards Institute Standard (ANSI categories of hearing protectors in ac-
STD) S3.19–1974. The provisions of this cordance with § 211.206–1 of the regula-
standard, with the modifications indi- tion, and must relabel those categories
cated below, are included by reference as necessary.
in this section. Copies of this standard (c) Manufacturers who use available
may be obtained from: American Na- data based on ANSI STD S3.19–1974 are
tional Standards Institute, Sales De- not required to retest the affected cat-
partment, 1430 Broadway, New York, egories of hearing protectors.
New York 10018. (d) If a manufacturer has both ANSI
(b) For the purpose of this subpart STD S3.19–1974 test data and ANSI STD
only, sections 1, 2, 3 and appendix A of Z24.22–1957 test data on a hearing pro-
the standard, as modified below, shall tector category, that manufacturer
182
must use the data obtained according steps #6 and #7 in Figure 2. The values
to ANSI STD S3.19–1974. of ¥.2, 0, 0, 0, ¥.2, ¥.8, ¥3.0 in Step 2
[45 FR 8275, Feb. 6, 1980]
and ¥16.1, ¥8.6, ¥3.2, 0, + 1.2, + 1.0,
¥1.1 in Step 4 of Figure 2 represent the
§§ 211.206–3—211.206–10 Alternative standard ‘‘C’’- and ‘‘A’’-weighting rel-
test methods. [Reserved] ative response corrections applied to
any sound levels at the indicated oc-
§ 211.207 Computation of the noise tave band center frequencies. (NOTE:
reduction rating (NRR). The manufacturer may label the pro-
Calculate the NRR for hearing protector at values lower than indicated
tective devices by substituting the av- by the test results and this computa-
erage attenuation values and standard tion procedure, e.g. lower NRR from
deviations for the pertinent protector lower attenuation values. (Ref.
category for the sample data used in § 211.211(b).)
FIGURE 2—COMPUTATION OF THE NOISE REDUCTION RATING
Octave band center frequency (Hz) 125 250 500 1000 2000 3000 4000 6000 8000
1 Assumed Pink noise (dB) ............. 100 100 100 100 100 ........ 100 ........ 100
2 ‘‘C’’ weighting corrections (dB) ..... ¥.2 0 0 0 ¥.2 ........ ¥.8 ........ ¥3.0
3 Unprotected ear ‘‘C’’-weighted
level (dB) ....................................... 99.8 100 100 100 99.8 ........ 99.2 ........ 97.0
(The seven logarithmically added
‘‘C’’-weighted sound pressure lev-
els of Step #3 = 107.9 dS)
4 ‘‘A’’-weighting corrections (dB) ..... ¥16.1 ¥8.6 ¥3.2 0 + 1.2 ........ + 1.0 ........ ¥1.1
5 Unprotected ear ‘‘A’’-weighted
level (step #1-step #4) (dB) .......... 83.9 91.4 96.8 100 101.2 ........ 101 ........ 98.9
6 Average attenuation in dB at fre-
quency ........................................... 21 22 23 29 41 ........ (43 + 47)/2 = ........ (41 + 36)/2 =
45 38.5
7 Standard deviation in dB at fre-
quency ........................................... 3.7 3.3 3.8 4.7 3.3 ........ (3.3 + 3.4) = ........ (6.1 + 6.5) =
6.7 12.6
×2 ×2 ×2 ×2 ×2 ........ ...................... ........ ..........................
7.4 6.6 7.6 9.4 6.6 ........ ...................... ........ ..........................

8 Step #5-(step #6-step #7) devel-
ops the protected ear ‘‘A’’ weight-
ed levels (dB) ................................ 70.3 76.0 81.4 80.4 66.8 ........ 62.7 ........ 73.0
(The seven logarithmically added
‘‘A’’-weighted sound pressure lev-
els of Step #8 using this sample
data = 85.1 dB)
9 NRR = Step #3—Step #8—3 dB*; = 107.9 dB—85.1 dB—3 dB*; = 19.8 dB (or 20) (Round values ending in .5 to next lower
whole number).
*Spectral uncertainty (as defined in § 211.203).
The value for #3 is constant. Use Loga- Add this

level to the
rithmic mathematics to determine the Difference between any two sound pressure higher of
levels being combined (dB)
combined value of protected ear levels the two lev-
els (dB)
(Step #8) which is used in Step #9 to
exactly derive the NRR; or use the fol- Greater than 9 ................................................... 0
lowing table as a substitute for loga-
rithmic mathematics to determine the § 211.208 Export provisions.
value of Step #8 and thus very closely
approximate the NRR. (a) The outside of each package or
container containing a hearing protec-
Add this tive device intended solely for export
level to the must be so labeled or marked. This will
Difference between any two sound pressure higher of
levels being combined (dB) the two lev- include all packages or containers that
els (dB)
are used for shipping, transporting, or
0 to less than 1.5 ............................................... 3 dispersing the hearing protective de-

1.5 to less than 4.5 ............................................ 2 vice along with any individual pack-
4.5 to 9 .............................................................. 1 aging.
183
§ 211.210 40 CFR Ch. I (7–1–21 Edition)
(b) In addition, the manufacturer of a tors equal or exceed their mean attenu-
hearing protective device intended ation values, and that labeling require-
solely for export is subject to the ments will be satisfied before the ex-
export exemption requirements of tension expires. Requests for extension
§ 211.110–3 of subpart A. should go to the Administrator, U.S.
(Sec. 10(b)(2), Pub. L. 92–574, 86 Stat. 1242 (42 Environment Protection Agency,
U.S.C. 4909(b)(2))) Washington, DC 20460. The Adminis-
trator must respond to a request with-
§ 211.210 Requirements. in 2 business days. Responses may be
either written or oral.
§ 211.210–1 General requirements.
(3) A manufacturer, receiving hearing
(a) Every hearing protector manufac- protectors through the chain of dis-
tured for distribution in commerce in tribution that were labeled by a pre-
the United States, and which is subject vious manufacturer, may use that pre-
to this regulation: vious manufacturer’s data when label-
(1) Must be labeled at the point of ul- ing the protectors for ultimate sale or
timate purchase or distribution to the use, but is responsible for the accuracy
prospective user according to the re- of the information on the label. The
quirements of § 211.204 of this subpart; manufacturer may elect to retest the
and protectors.
(2) Must meet or exceed the mean at-
(b) Labeling requirements regarding
tenuation values determined by the
each hearing protector category in a
procedure in § 211.206 and explained in
manufacturer’s product line consist of:
§ 211.211(b).
(b) Manufacturers who distribute pro- (1) Testing hearing protectors accord-
tectors in commerce to another manu- ing to § 211.206 and the hearing protec-
facturer for packaging for ultimate tors must have been assembled by the
purchase or use must provide to that manufacturer’s normal production
manufacturer the mean attenuation process; and it must have been in-
values and standard deviations at each tended for distribution in commerce.
of the one-third octave band center fre- (c) Each category of hearing protec-
quencies as determined by the test pro- tors is determined by the combination
cedure in § 211.206. He must also provide of at least the following parameters.
the Noise Reduction Rating calculated Manufacturers may use additional pa-
according to § 211.207. rameters as needed to create and iden-
(Sec. 13, Pub. L. 92–574, 86 Stat. 1244 (42
tify additional categories of protectors.
U.S.C. 4912)) (1) Ear muffs. (i) Head band tension
(spring constant);
FR 8275, Feb. 6, 1980; 47 FR 57716, Dec. 28, (ii) Ear cup volume or shape;
1982] (iii) Mounting of ear cup on head
band;
§ 211.210–2 Labeling requirements. (iv) Ear cushion;
(a)(1) A manufacturer responsible for (v) Material composition.
labeling must satisfy the requirements (2) Ear inserts. (i) Shape;
of this subpart for a category of hear- (ii) Material composition.
ing protectors before distributing that (3) Ear caps. (i) Head band tension
category of hearing protectors in com- (spring constant);
merce. (ii) Mounting of plug on head band;
(2) A manufacturer may apply to the (iii) Shape of plug;
Administrator for an extension of time
(iv) Material composition.
to comply with the labeling require-
ments for a category of protectors be- If an ear insert or ear cap is manufac-
fore he distributes any protectors in tured in more than one size (small, me-
commerce. The Administrator may dium, large, etc.) each size does not
grant the manufacturer an extension of constitute a separate category and is
up to 20 days from the date of distribu- not required to be separately label

tion. The manufacturer must provide verified. However, each size must be
reasonable assurance that the protec- used when conducting the required test
184
to determine the labeled values for the (3) The selection procedure the
specified category. manufacturer will use to select test
[44 FR 56139, Sept. 28, 1979, as amended at 47 protectors;
FR 57717, Dec. 28, 1982] (4) The test facility where the
manufacturer is required to have the
§ 211.211 Compliance with labeling re- protectors tested;
quirement. (5) The number of protectors to be
(a) All hearing protective devices forwarded to the designated test facil-
manufactured after the effective date ity and the number of those protectors
of this regulation, and meeting the ap- which must be tested by the facility.
plicability requirements of § 211.201, (6) The time period allowed for the
must be labeled according to this sub- manufacturer to initiate testing; and
part, and must comply with the La- (7) Any other information that will
beled Values of mean attenuation. be necessary to conduct testing under
(b) A manufacturer must take into this section.
account both product variability and
(d) The test request may provide for
test-to-test variability when labeling
situations in which the selected cat-
his devices in order to meet the re-
quirements of paragraph (a) of this sec- egory is unavailable for testing. It may
tion. A specific category is considered include an alternative category to be
when the attenuation value at the test- selected for testing in the event that
ed one-third octave band is equal to or protectors of the first specified cat-
greater than the Labeled Value, or egory are not available because the
mean attenuation value, stated in the protectors are not being manufactured
supporting information required by at the specified plant, at the specified
§ 211.204–4, for that tested frequency. time, and are not being stored at the
The attenuation value must be deter- specified plant or storage facility.
mined according to the test procedures (e)(1) Any testing conducted by the
of § 211.206. The Noise Reduction Rating manufacturer under a test request
for the label must be calculated using must commence within the period
the Labeled Values of mean attenu- specified within the test request. The
ation that will be included in the Administrator may extend the time pe-
supporting information required by riod on request by the manufacturer, if
§ 211.204–4. a test facility is not available to con-
[47 FR 57717, Dec. 28, 1982] duct the testing.
(2) The manufacturer must complete
§ 211.212 Compliance audit testing. the required testing within one week
following commencement of the
testing.
(a) The Administrator will request (3) The manufacturer will be allowed
all testing under this section by means 1 calendar week to send test hearing
of a test request addressed to the protectors from the assembly plant to
manufacturer. the testing facility. The Administrator
(b) The test request will be signed by may approve more time based upon a
the Assistant Administrator for En- request by the manufacturer. The re-
forcement or his designee. The test request must be accompanied by a satis-
quest will be delivered by an EPA En-
factory justification.
forcement Officer or sent by certified
(f) Failure to comply with any of the
mail to the plant manager or other re-
sponsible official as designated by the requirements of this section will not be
manufacturer. considered a violation of these regula-
(c) In the test request, the Adminis- tions if conditions and circumstances
trator must specify the following: outside the control of the manufac-
(1) The hearing protector category turer render it impossible for him to
selected for testing; comply. These conditions and cir-
(2) The manufacturer’s plant or stor- cumstances include, but are not lim-
age facility from which the protectors ited to, the temporary unavailability
must be selected; of equipment and personnel needed to
185
§ 211.212–2 40 CFR Ch. I (7–1–21 Edition)
conduct the required tests. The manu- § 211.212–2 before the official test, and
facturer bears the burden of estab- must comply with the test protector
lishing the presence of the conditions preparation requirements described in
and circumstances. this subpart:
(Sec. 13. Pub. L. 92–574, 86 Stat. 1244 (42
(a) A test hearing protector selected
U.S.C. 4912)) according to § 211.212–2 must not be
tested, modified, or adjusted in any
[44 FR 56139, Sept. 28, 1979, as amended at 45 manner before the official test unless
FR 8275, Feb. 6, 1980; 47 FR 57717, Dec. 28,
the adjustments, modifications and/or
1982]
tests are part of the manufacturer’s
§ 211.212–2 Test hearing protector se- prescribed manufacturing and inspec-
lection. tion procedures.
(a) The test request will specify the (b) Quality controls, testing, assem-
number of test protectors which will be bly or selection procedures must not
selected for testing from the number of be, used on the completed protector or
protectors delivered to the test facility any portion of the protector, including
in accordance with § 211.212–1(c)(5). The parts, that will not normally be used
remainder may be used as replacement during the production and assembly of
protectors if replacement is necessary. all other protectors of that category to
The test request will also specify that be distributed in commerce.
the protectors be selected from the [47 FR 57717, Dec. 28, 1982]
next batch scheduled for production
after receipt of the test request. § 211.212–4 Testing procedures.
(b) If random selection is specified, it (a) The manufacturer must conduct
must be achieved by sequentially num- one valid test according to the test
bering all the protectors in the group procedures specified in § 211.206 for each
and then using a table of random num- hearing protector selected for testing
bers to select the test hearing protec- under § 211.212–2.
tors. The manufacturer may use an al- (b) The manufacturer must not repair
ternative random selection plan when or adjust the test hearing protectors
it is approved by the Administrator. once compliance testing has been initi-
(c) Each test protector of the cat- ated. In the event a hearing protector
egory selected for testing must have is unable to complete the test, the
been assembled, by the manufacturer, manufacturer may replace the pro-
for distribution in commerce using the tector. Any replacement protector will
manufacturer’s normal production be of the same category as the pro-
process. tector being replaced. It will be se-
(d) At their discretion, EPA Enforce- lected from the remaining designated
ment Officers, rather than the manu- test protectors and will be subject to
facturer, may select the protectors des- all the provisions of these regulations.
ignated in the test request. Any replacement and the reason for re-
(e) The manufacturer must keep on placement must be reported in the
hand the test protectors designated for compliance audit test report.
testing until such time as the category
(Sec. 13, Pub. L. 92–574, 86 Stat. 1244 (42
is determined to be in compliance.
U.S.C. 4912))
Hearing protectors actually tested and
found to be in compliance with these § 211.212–5 Reporting of test results.
regulations may be distributed in
(a)(1) The manufacturer must submit
commerce.
to the Administrator a copy of the
(Sec. 13, Pub. L. 92–574, 86 Stat. 1244 (42 Compliance Audit Test report for all
U.S.C. 4912)) testing conducted under § 211.212. It
[44 FR 56139, Sept. 28, 1979, as amended at 45 must be submitted within 5 days after
FR 8275, Feb. 6, 1980] completion of testing. A suggested
compliance audit test report form is
§ 211.212–3 Test hearing protector included as appendix B.
preparation. (2) The manufacturer must provide

The manufacturer must select the the following test information:
test hearing protector according to (i) Category identification;
186
(ii) Production date, and model of ance Audit Test values plus 3 dB(A), is
hearing protector; equal to or greater than the mean at-
(iii) The name and location of the tenuation value at the same one-third
test facility used; octave band as stated in the Sup-
(iv) The completed data sheet in the porting Information required by
form specified for all tests including, § 211.204–4; and
for each invalid test, the reason for in- (2) The Noise Reduction Rating, when
validation; and calculated from the mean attenuation
(v) The reason for the replacement values determined by Compliance
where a replacement protector was Audit Testing, equals or exceeds the
necessary. Noise Reduction Rating as stated on
(3) The manufacturer must provide the label required by § 211.204.
the following statement and en- (b) If a category is not in compliance,
dorsement: as determined in paragraph (a) of this
section, the manufacturer must satisfy
This report is submitted under section 8 the continued testing requirements of
and section 13 of the Noise Control Act of
1972. All testing, for which data are reported
§ 211.212–7, and the relabeling require-
here, was conducted in strict conformance ments of § 211.212–8 before further dis-
with applicable regulations under 40 CFR tributing hearing protectors of that
Part 211 et seq. All the data reported are true category in commerce.
and accurate representations of this testing.
(Sec. 13, Pub. L. 92–574, 86 Stat. 1244 (42
All other information reported here is, to the
U.S.C. 4912))
best of (company name) and (test laboratory
name) knowledge, true and accurate. I am [44 FR 56139, Sept. 28, 1979, as amended at 47
aware of the penalties associated with viola- FR 57717, Dec. 28, 1982]
tion of the Noise Control Act of 1972 and the
regulations published under it. (authorized § 211.212–7 Continued compliance test-
representative) ing.
If a category is not in compliance as
If the testing is conducted by an out-
determined under § 211.212–6, the manu-
side laboratory the manufacturer must
facturer must satisfy the requirements
require an authorized representative of
of paragraph (a) or (b) of this section.
the laboratory to cosign both the
(a) The manufacturer must continue
statement and the endorsement.
to conduct additional tests until the
(b) In the case where an EPA En-
mean attenuation values from the last
forcement Officer is present during
test at each octave band equal or ex-
testing required by this subpart, the ceed the lowest attenuation values ob-
written reports required in paragraph tained from all previous compliance
(a) of this section may be given di- tests.
rectly to the Enforcement Officer. (b) Upon approval by the Adminis-
(c) The reporting requirements of trator, the manufacturer may relabel
this regulation will no longer be effec- at a lower level in compliance with
tive after five (5) years from the date of § 211.212–8 in lieu of testing under para-
publication; however, the requirements graph (a) of this section. The manufac-
will remain in effect if the Adminis- turer must obtain approval by showing
trator is taking appropriate steps to that the relabeled values adequately
repromulgate or modify the reporting take into account results achieved
requirements at that time. from the Compliance Audit Testing and
(Sec. 13, Pub. L. 92–574, 86 Stat. 1244 (42 product variability. The Administrator
U.S.C. 4912)) is to exercise his discretion in light of
factors including the prior compliance
§ 211.212–6 Determination of compli- record of the manufacturer, the ade-
ance. quacy of the proposed new labeling
(a) A category will be in compliance value, the amount of deviation of test
with these requirements if the results results from the labeled values, and
of the test conducted under the test re- any other relevant information.
quest show that: (c) When the manufacturer can show
(1) The mean attenuation value, at that the non-compliance under

each one-third octave band center fre- § 211.212–6 was caused by a quality con-
quency as determined from the Compli- trol failure and that the failure has
187
§ 211.212–8 40 CFR Ch. I (7–1–21 Edition)
been remedied, he may, with the Ad- when any person is in violation of
ministrator’s approval, conduct an ad- these regulations.
ditional test and relabel using the (b) A remedial order will be issued
mean attenuation values no higher only after the violator has been noti-
than those obtained in that test. fied of the violation and given an op-
(d) The manufacturer may request a portunity for a hearing according to
hearing on the issue of whether the section 554 of title 5 of the United
compliance audit testing was con- States Code.
ducted properly and whether the cri- (c) All costs associated with a reme-
teria for non-compliance in § 211.212–6 dial order shall be borne by the viola-
have been met; and the appropriateness tor.
or scope of a continued testing order. (Sec. 11(d) Pub. L. 92–574, 86 Stat. 1243 (42
In the event that a hearing is re- U.S.C. 4910(d)))
quested, the hearing shall begin no
later than 15 days after the date on § 211.214 Removal of label.
which the Administrator received the Section 10(a)(4) of the Act prohibits
hearing request. Neither the request any person from removing, prior to
for a hearing, nor the fact that a hear- sale, any label required by this sub-
ing is in progress, shall affect the re- part, by either physical removal or de-
sponsibility of the manufacturer to facing or any other physical act mak-
commence and continue testing re- ing the label and its contents not ac-
quired by the Administrator pursuant cessible to the ultimate purchaser
to paragraph (a) of this section. prior to sale.
(Sec. 13, Pub. L. 92–574, 86 Stat. 1244 (42 (Sec. 10(a)(4), Pub. L. 92–574, 86 Stat. 1242 (42
U.S.C. 4912)) U.S.C. 4909(a)(4)))
FR 8275, Feb. 6, 1980]
§ 211.212–8 Relabeling requirements. APPENDIX A TO PART 211—COMPLIANCE

AUDIT TESTING REPORT
(a) Any manufacturer who is found to
not conform with § 211.212–6, and who Data Sheet
has met the requirement of § 211.212–7, Company name: lllllllllllllll
must relabel all protectors of the speci- Address: lllllllllllllllllll
fied category already in his possession Test laboratory: lllllllllllllll
according to § 211.211 before distrib- Address: lllllllllllllllllll
uting them in commerce. The manufac- Model number of hearing protector: llll
turer shall relabel at values no greater Category designation: llllllllllll
Production date: llllllllllllll
than any mean attenuation values re-
ceived from Compliance Audit Testing. Test Results—Frequency, Mean Attenuation,
Any manufacturer who proceeds with and Standard Deviation
§ 211.212–7(a) or (b) must relabel his 125 llllllllllllllllllllll
product line with the lowest mean at- 250 llllllllllllllllllllll
tenuation value at each octave band re- 500 llllllllllllllllllllll
ceived from testing; or he may take 1000 lllllllllllllllllllll
into account product variability under 2000 lllllllllllllllllllll
§ 211.211(b) and label with a lower mean 3150 lllllllllllllllllllll
4000 lllllllllllllllllllll
attenuation value than the worst case
6300 lllllllllllllllllllll
values obtained from Compliance Audit 8000 lllllllllllllllllllll
Testing. Noise Reduction Rating: llllllllll
(b) [Reserved]
If replacement hearing protector was nec-
(Sec. 10(a)(3), Pub. L. 92–574, 86 Stat. 1242 (42 essary to conduct test, reason for replace-
U.S.C. 4909(a)(3))) ment:
This report is submitted under sections 8
§ 211.213 Remedial orders for viola- and 13 of the Noise Control Act of 1972. All
testing, for which data are reported here,
tions of these regulations.

was conducted in strict conformance with
(a) The Administrator may issue an applicable regulations under 40 CFR Part 211,
order under section 11(d)(1) of the Act et seq. All the data reported here are true and
188
accurate representations of this testing. All (Authorized representative of company)
other information reported here is, to the
llllllllllllllllllllllll
best of (company name) and (test laboratory
name) knowledge, true and accurate. I am (Authorized representative of test
aware of the penalties associated with viola- laboratory)
tion of the Noise Control Act of 1972 and the
regulations published under it. [44 FR 56139, Sept. 28, 1979. Redesignated at
llllllllllllllllllllllll 47 FR 57717, Dec. 28, 1982]
189
SUBCHAPTER H—OCEAN DUMPING
PART 220—GENERAL of the Act, the regulations and criteria

included in this subchapter H apply the
Sec. standards and criteria binding upon the
220.1 Purpose and scope. United States under the Convention on
220.2 Definitions. the Prevention of Marine Pollution by
220.3 Categories of permits. Dumping of Wastes and Other Matter
220.4 Authorities to issue permits. to the extent that application of such
AUTHORITY: 33 U.S.C. 1412 and 1418. standards and criteria do not relax the
requirements of the Act.
SOURCE: 42 FR 2468, Jan. 11, 1977, unless (c) Exclusions—(1) Fish wastes. This
otherwise noted.
subchapter H does not apply to, and no
§ 220.1 Purpose and scope. permit hereunder shall be required for,
the transportation for the purpose of
(a) General. This subchapter H estab- dumping or the dumping in ocean
lishes procedures and criteria for the waters of fish wastes unless such dump-
issuance of permits by EPA pursuant ing occurs in:
to section 102 of the Act. This sub- (i) Harbors or other protected or en-
chapter H also establishes the criteria closed coastal waters; or
to be applied by the Corps of Engineers (ii) Any other location where the Ad-
in its review of activities involving the ministrator finds that such dumping
transportation of dredged material for may reasonably be anticipated to en-
the purpose of dumping it in ocean danger health, the environment or eco-
waters pursuant to section 103 of the logical systems.
Act. Except as may be authorized by a (2) Fisheries resources. This sub-
permit issued pursuant to this subchapter H does not apply to, and no
chapter H, or pursuant to section 103 of permit hereunder shall be required for,
the Act, and subject to other applicable the placement or deposit of oyster
regulations promulgated pursuant to shells or other materials for the pur-
section 108 of the Act: pose of developing, maintaining or har-
(1) No person shall transport from vesting fisheries resources; provided,
the United States any material for the such placement or deposit is regulated
purpose of dumping it into ocean under or is a part of an authorized
waters; State or Federal program certified to
(2) In the case of a vessel or aircraft EPA by the agency authorized to en-
registered in the United States or fly- force the regulation, or to administer
ing the United States flag or in the the program, as the case may be; and
case of a United States department, provided further, that the National
agency, or instrumentality, no person Oceanic and Atmospheric Administra-
shall transport from any location any tion, the U.S. Coast Guard, and the
material for the purpose of dumping it U.S. Army Corps of Engineers concur
into ocean waters; and in such placement or deposit as it may
(3) No person shall dump any mate- affect their responsibilities and such
rial transported from a location out- concurrence is evidenced by letters of
side the United States: concurrence from these agencies.
(i) Into the territorial sea of the (3) Vessel propulsion and fixed struc-
United States; or tures. This subchapter H does not apply
(ii) Into a zone contiguous to the ter- to, and no permit hereunder shall be
ritorial sea of the United States, ex- required for:
tending to a line twelve nautical miles (i) Routine discharges of effluent in-
seaward from the base line from which cidental to the propulsion of vessels or
the breadth of the territorial sea is the operation of motor-driven equip-
measured, to the extent that it may af- ment on vessels; or
fect the territorial sea or the territory (ii) Construction of any fixed struc-
of the United States. ture or artificial island, or the inten-

(b) Relationship to international agree- tional placement of any device in
ments. In accordance with section 102(a) ocean waters or on or in the submerged
190
land beneath such waters, for a purpose (e) Dumping means a disposition of
other than disposal when such con- material: Provided, That it does not
struction or such placement is other- mean a disposition of any effluent from
wise regulated by Federal or State law any outfall structure to the extent
or made pursuant to an authorized that such disposition is regulated
Federal or State program certified to under the provisions of the FWPCA,
EPA by the agency authorized to en- under the provisions of section 13 of
force the regulations or to administer the River and Harbor Act of 1899, as
the program, as the case may be. amended (33 U.S.C. 407), or under the
(4) Emergency to safeguard life at sea. provisions of the Atomic Energy Act of
This subchapter H does not apply to, 1954, as amended (42 U.S.C. 2011), nor
and no permit hereunder shall be re- does it mean a routine discharge of ef-
quired for, the dumping of material fluent incidental to the propulsion of,
into ocean waters from a vessel or air- or operation of motor-driven equip-
craft in an emergency to safeguard life ment on, vessels: Provided further, That
at sea to the extent that the person it does not mean the construction of
owning or operating such vessel or air- any fixed structure or artificial island
craft files timely reports required by nor the intentional placement of any
§ 224.2(b). device in ocean waters or on or in the
submerged land beneath such waters,
§ 220.2 Definitions. for a purpose other than disposal, when
such construction or such placement is
As used in this subchapter H: otherwise regulated by Federal or
(a) Act means the Marine Protection, State law or occurs pursuant to an au-
Research, and Sanctuaries Act of 1972, thorized Federal or State program; And
as amended (33 U.S.C. 1401); provided further, That it does not in-
(b) FWPCA means the Federal Water clude the deposit of oyster shells, or
Pollution Control Act, as amended (33 other materials when such deposit is
U.S.C. 1251); made for the purpose of developing,
(c) Ocean or ocean waters means those maintaining, or harvesting fisheries re-
waters of the open seas lying seaward sources and is otherwise regulated by
of the baseline from which the terri- Federal or State law or occurs pursu-
torial sea is measured, as provided for ant to an authorized Federal or State
in the Convention on the Territorial program.
Sea and the Contiguous Zone (15 UST (f) Sewage Treatment Works means
1606; TIAS 5639); this definition in- municipal or domestic waste treatment
cludes the waters of the territorial sea, facilities of any type which are pub-
the contiguous zone and the oceans as licly owned or regulated to the extent
defined in section 502 of the FWPCA. that feasible compliance schedules are
(d) Material means matter of any determined by the availability of fund-
kind or description, including, but not ing provided by Federal, State, or local
limited to, dredged material, solid governments.
waste, incinerator residue, garbage, (g) Criteria means the criteria set
sewage, sewage sludge, munitions, radi- forth in part 227 of this subchapter H.
ological, chemical, and biological war- (h) Dredged Material Permit means a
fare agents, radioactive materials, permit issued by the Corps of Engi-
chemicals, biological and laboratory neers under section 103 of the Act (see
waste, wreck or discarded equipment, 33 CFR 209.120) and any Federal
rock, sand, excavation debris, indus- projects reviewed under section 103(e)
trial, municipal, agricultural, and of the Act (see 33 CFR 209.145).
other waste, but such term does not (i) Unless the context otherwise re-
mean sewage from vessels within the quires, all other terms shall have the
meaning of section 312 of the FWPCA. meanings assigned to them by the Act.
Oil within the meaning of section 311 of
the FWPCA shall constitute ‘‘mate- § 220.3 Categories of permits.
rial’’ for purposes of this subchapter H This § 220.3 provides for the issuance
only to the extent that it is taken on of general, special, emergency, and re-
board a vessel or aircraft for the pri- search permits for ocean dumping
mary purpose of dumping. under section 102 of the Act.
191
§ 220.4 40 CFR Ch. I (7–1–21 Edition)
(a) General permits. General permits part of a research project when it is de-
may be issued for the dumping of cer- termined that the scientific merit of
tain materials which will have a mini- the proposed project outweighs the po-
mal adverse environmental impact and tential environmental or other damage
are generally disposed of in small quan- that may result from the dumping. Re-
tities, or for specific classes of mate- search permits shall specify an expira-
rials that must be disposed of in emer- tion date no later than 18 months from
gency situations. General permits may the date of issue.
be issued on application of an inter- (f) Permits for incineration at sea. Per-
ested person in accordance with the mits for incineration of wastes at sea
procedures of part 221 or may be issued will be issued only as research permits
without such application whenever the until specific criteria to regulate this
Administrator determines that type of disposal are promulgated, ex-
issuance of a general permit is nec- cept in those cases where studies on
essary or appropriate. the waste, the incineration method and
(b) Special permits. Special permits vessel, and the site have been con-
may be issued for the dumping of mate- ducted and the site has been designated
rials which satisfy the Criteria and for incineration at sea in accordance
shall specify an expiration date no with the procedures of § 228.4(b) of this
later than three years from the date of chapter. In all other respects the re-
issue. quirements of parts 220 through 228
(c) Emergency permits. For any of the apply.
materials listed in § 227.6, except as
trace contaminants, after consultation [42 FR 2468, Jan. 11, 1977; 43 FR 1071, Jan. 6,
1978; 73 FR 74986, Dec. 10, 2008]
with the Department of State with re-
spect to the need to consult with par- § 220.4 Authorities to issue permits.
ties to the Convention on the Preven-
tion of Marine Pollution by Dumping (a) Determination by Administrator.
of Wastes and Other Matter that are The Administrator, or such other EPA
likely to be affected by the dumping, employee as he may from time to time
emergency permits may be issued to designate in writing, shall issue, deny,
dump such materials where there is modify, revoke, suspend, impose condi-
demonstrated to exist an emergency tions on, initiate and carry out en-
requiring the dumping of such mate- forcement activities and take any and
rials, which poses an unacceptable risk all other actions necessary or proper
relating to human health and admits of and permitted by law with respect to
no other feasible solution. As used general, special, emergency, or re-
herein, ‘‘emergency’’ refers to situa- search permits.
tions requiring action with a marked (b) Authority delegated to Regional Ad-
degree of urgency, but is not limited in ministrators. Regional Administrators,
its application to circumstances re- or such other EPA employees as they
quiring immediate action. Emergency may from time to time designate in
permits may be issued for other mate- writing, are delegated the authority to
rials, except those prohibited by § 227.5, issue, deny, modify, revoke, suspend,
without consultation with the Depart- impose conditions on, initiate and
ment of State when the Administrator carry out enforcement activities, and
determines that there exists an emer- take any and all other actions nec-
gency requiring the dumping of such essary or proper and permitted by law
materials which poses an unacceptable with respect to special permits for:
risk to human health and admits of no (1) The dumping of material in those
other feasible solution. portions of the territorial sea which
(d) [Reserved] are subject to the jurisdiction of any
(e) Research permits. Research permits State within their respective Regions,
may be issued for the dumping of any and in those portions of the contiguous
materials, other than materials speci- zone immediately adjacent to such
fied in § 227.5 or for any of the mate- parts of the territorial sea; and in the
rials listed in § 227.6 except as trace oceans with respect to approved waste
contaminants, unless subject to the ex- disposal sites designated pursuant to
clusion of § 227.6(g), into the ocean as part 228 of this subchapter H, and
192
(2) Where transportation for dumping § 221.1 Applications for permits.

is to originate in one Region and dump- Applications for general, special,
ing is to occur at a location within an- emergency, and research permits under
other Region’s jurisdiction conferred section 102 of the Act may be filed with
by order of the Administrator, the Re- the Administrator or the appropriate
gion in which transportation is to Regional Administrator, as the case
originate shall be responsible for re- may be, authorized by § 220.4 of this
view of the application and shall pre- chapter to act on the application. Ap-
pare the technical evaluation of the plications shall be made in writing and
need for dumping and alternatives to shall contain, in addition to any other
ocean dumping. The Region having ju- material which may be required, the
risdiction over the proposed dump site following:
shall take all other actions required by (a) Name and address of applicant;
this subchapter H with respect to the (b) Name of the person or firm trans-
permit application, including without porting the material for dumping, the
limitation, determining to issue or name of the person(s) or firm(s) pro-
deny the permit, specifying the condi- ducing or processing all materials to be
tions to be imposed, and giving public transported for dumping, and the name
notice. If both Regions do not concur or other identification, and usual loca-
in the disposition of the permit appli- tion, of the conveyance to be used in
the transportation and dumping of the
cation, the Administrator will make
material to be dumped, including infor-
the final decision on all issues with re-
mation on the transporting vessel’s
spect to the permit application, includ- communications and navigation equip-
ing without limitation, issuance or de- ment;
nial of the permit and the conditions to (c) Adequate physical and chemical
be imposed. description of material to be dumped,
(c) Review of Corps of Engineers including results of tests necessary to
Dredged Material Permits. Regional Ad- apply the Criteria, and the number,
ministrators have the authority to re- size, and physical configuration of any
view, to approve or to disapprove or to containers to be dumped;
propose conditions upon Dredged Mate- (d) Quantity of material to be
rial Permits for ocean dumping of dumped;
dredged material at locations within (e) Proposed dates and times of dis-
the respective Regional jurisdictions. posal;
Regional jurisdiction to act under this (f) Proposed dump site, and in the
paragraph (c) of § 220.4 is determined by event such proposed dump site is not a
the Administrator in accordance with dump site designated in this sub-
§ 228.4(e). chapter H, detailed physical, chemical
and biological information relating to
[42 FR 2468, Jan. 11, 1977, as amended at 73 the proposed dump site and sufficient
FR 74986, Dec. 10, 2008]
to support its designation as a site ac-
cording to the procedures of part 228 of
PART 221—APPLICATIONS FOR this subchapter H;
OCEAN DUMPING PERMITS (g) Proposed method of releasing the
UNDER SECTION 102 OF THE material at the dump site and means
ACT by which the disposal rate can be con-
trolled and modified as required;
Sec.
(h) Identification of the specific proc-
221.1 Applications for permits. ess or activity giving rise to the pro-
221.2 Other information. duction of the material;
221.3 Applicant. (i) Description of the manner in
221.4 Adequacy of information in applica- which the type of material proposed to
tion. be dumped has been previously dis-
221.5 Processing fees. posed of by or on behalf of the person(s)
or firm(s) producing such material;
AUTHORITY: 33 U.S.C. 1412 and 1418. (j) A statement of the need for the
SOURCE: 42 FR 2470, Jan. 11, 1977, unless proposed dumping and an evaluation of
otherwise noted. short and long term alternative means
193
§ 221.2 40 CFR Ch. I (7–1–21 Edition)
of disposal, treatment or recycle of the § 221.4 Adequacy of information in ap-

material. Means of disposal shall in- plication.
clude without limitation, landfill, well No permit issued under this sub-
injection, incineration, spread of mate- chapter H will be valid for the trans-
rial over open ground; biological, portation or dumping of any material
chemical or physical treatment; recov- which is not accurately and adequately
ery and recycle of material within the described in the application. No per-
plant or at other plants which may use mittee shall be relieved of any liability
the material, and storage. The state- which may arise as a result of the
ment shall also include an analysis of transportation or dumping of material
the availability and environmental im- which does not conform to information
pact of such alternatives; and
provided in the application solely by
(k) An assessment of the anticipated
virtue of the fact that such informa-
environmental impact of the proposed
tion was furnished by an applicant
dumping, including without limitation,
other than the permittee.
the relative duration of the effect of
the proposed dumping on the marine § 221.5 Processing fees.
environment, navigation, living and
non-living marine resource exploi- (a) A processing fee of $1,000 will be
tation, scientific study, recreation and charged in connection with each appli-
other uses of the ocean. cation for a permit for dumping in an
existing dump site designated in this
[42 FR 2470, Jan. 11, 1977, as amended at 73 subchapter H.
FR 74986, Dec. 10, 2008] (b) A processing fee of an additional
§ 221.2 Other information. $3,000 will be charged in connection
with each application for a permit for
In the event the Administrator, Re- dumping in a dump site other than a
gional Administrator, or a person des- dump site designated in this sub-
ignated by either to review permit ap- chapter H.
plications, determines that additional (c) Notwithstanding any other provi-
information is needed in order to apply sion of this § 221.5, no agency or instru-
the Criteria, he shall so advise the ap- mentality of the United States or of a
plicant in writing. All additional infor- State or local government will be re-
mation requested pursuant to this quired to pay the processing fees speci-
§ 221.2 shall be deemed part of the appli- fied in paragraphs (a) and (b) of this
cation and for purposes of applying the section.
time limitation of § 222.1, the applica-
tion will not be considered complete
until such information has been filed. PART 222—ACTION ON OCEAN
DUMPING PERMIT APPLICATIONS
§ 221.3 Applicant. UNDER SECTION 102 OF THE
Any person may apply for a permit ACT
under this subchapter H even though
the proposed dumping may be carried Sec.
on by a permittee who is not the appli- 222.1 General.
cant; provided however, that the Ad- 222.2 Tentative determinations.
ministrator or the Regional Adminis- 222.3 Notice of applications.
222.4 Initiation of hearings.
trator, as the case may be, may, in his
222.5 Time and place of hearings.
discretion, require that an application 222.6 Presiding Officer.
be filed by the person or firm producing 222.7 Conduct of public hearing.
or processing the material proposed to 222.8 Recommendations of Presiding Offi-
be dumped. Issuance of a permit will cer.
not excuse the permittee from any 222.9 Issuance of permits.
civil or criminal liability which may 222.10 Appeal to adjudicatory hearing.
attach by virtue of his having trans- 222.11 Conduct of adjudicatory hearings.
222.12 Appeal to Administrator.
ported or dumped materials in viola-
222.13 Computation of time.
tion of the terms or conditions of a per-
mit, notwithstanding that the per- AUTHORITY: 33 U.S.C. 1412 and 1418.
mittee may not have been the appli- SOURCE: 42 FR 2471, Jan. 11, 1977, unless
cant. otherwise noted.
194
§ 222.1 General. (3) A brief description of the proce-

dures set forth in § 222.5 for requesting
Decisions as to the issuance, denial,
a public hearing on the application in-
or imposition of conditions on general,
cluding specification of the date by
special, emergency, and research per-
which requests for a public hearing
mits under section 102 of the Act will
must be filed;
be made by application of the criteria
of parts 227 and 228 of this chapter. (4) A brief statement of the factors
Final action on any application for a considered in reaching the tentative
permit will, to the extent practicable, determination with respect to the per-
be taken within 180 days from the date mit and, in the case of a tentative de-
a complete application is filed. termination to issue the permit, the
reasons for the choice of the particular
[73 FR 74986, Dec. 10, 2008] permit conditions selected; and
(5) The location at which interested
§ 222.2 Tentative determinations. persons may obtain further informa-
(a) Within 30 days of the receipt of tion on the proposed dumping, includ-
his initial application, an applicant ing copies of any relevant documents.
shall be issued notification of whether (b) Publication—(1)(1) Special and re-
his application is complete and what, if search permits. Notice of every complete
any, additional information is reapplication for special and research
quired. No such notification shall be permits shall be given by:
deemed to foreclose the Administrator (i) Publication in a daily newspaper
or the Regional Administrator, as the of general circulation in the State in
case may be, from requiring additional closest proximity to the proposed dump
information at any time pursuant to site; and
§ 221.2. (ii) Publication in a daily newspaper
(b) Within 30 days after receipt of a of general circulation in the city in
completed permit application, the Ad- which is located the office of the Ad-
ministrator or the Regional Adminis- ministrator or the Regional Adminis-
trator, as the case may be, shall pub- trator, as the case may be, giving no-
lish notice of such application includ- tice of the permit application.
ing a tentative determination with re- (2) General permits. Notice of every
spect to issuance or denial of the per- complete application for a general per-
mit. If such tentative determination is mit or notice of action proposed to be
to issue the permit, the following addi- taken by the Administrator to issue a
tional tentative determinations will be general permit, without an application,
made: shall be given by publication in the
(1) Proposed time limitations, if any; FEDERAL REGISTER.
(2) Proposed rate of discharge from (3) Emergency permits. Notice of every
the barge or vessel transporting the complete application for an emergency
waste; permit shall be given by publication in
(3) Proposed dumping site; and accordance with paragraphs (b)(1)(i)
(4) A brief description of any other and (ii) of this section; Provided, how-
proposed conditions determined to be ever, That no such notice and no ten-
appropriate for inclusion in the permit tative determination in accordance
in question. with § 222.2 shall be required in any
case in which the Administrator deter-
§ 222.3 Notice of applications. mines:
(a) Contents. Notice of every complete (i) That an emergency, as defined in
application for a general, special, paragraph (c) of § 220.3 exists;
emergency and research permit shall, (ii) That the emergency poses an un-
in addition to any other material, in- acceptable risk relating to human
clude the following: health;
(1) A summary of the information in- (iii) That the emergency admits of no
cluded in the permit application; other feasible solution; and
(2) Any tentative determinations (iv) That the public interest requires
made pursuant to paragraph (b) of the issuance of an emergency permit as
§ 222.2; soon as possible.
195
§ 222.4 40 CFR Ch. I (7–1–21 Edition)
Notice of any determination made by trator or the Regional Administrator,

the Administrator pursuant to this as the case may be, consult with appro-
paragraph (b)(3) shall be given as soon priate regional officials of the Depart-
as practicable after the issuance of the ments of Commerce and Interior, the
emergency permit by publication in ac- Regional Director of the NMFS-NOAA,
cordance with paragraphs (b)(1)(i) and and the agency exercising administra-
(ii) and with paragraphs (a), (c) tive jurisdiction over the fish and wild-
through (i) of this section. life resources of the States subject to
(c) Copies of notice sent to specific per- any dumping prior to the issuance of a
sons. In addition to the publication of permit under this subchapter H. Copies
notice required by paragraph (b) of this of the notice shall be sent to the per-
section, copies of such notice will be sons noted in paragraph (g) of this sec-
mailed by the Administrator or the Re- tion.
gional Administrator, as the case may (h) Copies of notice sent to Food and
be, to any person, group or Federal, Drug Administration. In addition to the
State or local agency upon request. publication of notice required by para-
Any such request may be a standing re- graph (b) of this section, copies of such
quest for copies of such notices and notice will be mailed to Food and Drug
shall be submitted in writing to the Administration, Shellfish Sanitation
Administrator or to any Regional Ad- Branch, 5001 Campus Dr., College Park,
ministrator and shall relate to all or MD 20740.
any class of permit applications which (i) Failure to give certain notices. Fail-
may be acted upon by the Adminis- ure to send copies of any public notice
trator or such Regional Administrator, in accordance with paragraphs (c)
as the case may be. through (h) of this section shall not in-
(d) Copies of notice sent to States. In validate any notice given pursuant to
addition to the publication of notice this section nor shall such failure in-
required by paragraph (b) of this sec- validate any subsequent administrative
tion, copies of such notice will be proceeding.
mailed to the State water pollution (j) Failure of consulted agency to re-
control agency and to the State agency spond. Unless advice to the contrary is
responsible for carrying out the Coast- received from the appropriate Federal
al Zone Management Act, if such agen- or State agency within 30 days of the
cy exists, for each coastal State within date copies of any public notice were
500 miles of the proposed dumping site. dispatched to such agency, such agency
(e) Copies of notice sent to Corps of En- will be deemed to have no objection to
gineers. In addition to the publication the issuance of the permit identified in
of notice required by paragraph (b) of the public notice.
this section, copies of such notice will [42 FR 2471, Jan. 11, 1977, as amended at 73
be mailed to the office of the appro- FR 74986, Dec. 10, 2008; 84 FR 31514, July 2,
priate District Engineer of the U.S. 2019]
Army Corps of Engineers for purposes
of section 106(c) of the Act, (pertaining § 222.4 Initiation of hearings.
to navigation, harbor approaches, and (a) In the case of any permit applica-
artificial islands on the outer conti- tion for which public notice in advance
nental shelf). of permit issuance is required in ac-
(f) Copies of notice sent to Coast Guard. cordance with paragraph (b) of § 222.3,
In addition to the publication of notice any person may, within 30 days of the
required by paragraph (b) of this sec- date on which all provisions of para-
tion, copies of such notice will be sent graph (b) of § 222.3 have been complied
to the appropriate district office of the with, request a public hearing to con-
U.S. Coast Guard for review and pos- sider the issuance or denial of, or the
sible suggestion of additional condi- conditions to be imposed upon, such
tions to be included in the permit to fa- permit. Any such request for a public
cilitate surveillance and enforcement. hearing shall be in writing, shall iden-
(g) Fish and Wildlife Coordination Act. tify the person requesting the hearing,
The Fish and Wildlife Coordination shall state with particularity any ob-
Act, Reorganization Plan No. 4 of 1970, jections to the issuance or denial of, or
and the Act require that the Adminis- to the conditions to be imposed upon,
196
the proposed permit, and shall state with respect to the proposed ocean
the issues which are proposed to be dumping.
raised by such person for consideration
[84 FR 31514, July 2, 2019]
at a hearing.
(b) Whenever (1) a written request § 222.7 Conduct of public hearing.
satisfying the requirements of para-
graph (a) of this section has been re- The Presiding Officer shall be respon-
ceived and the Administrator or Re- sible for the expeditious conduct of the
gional Administrator, as the case may hearing. The hearing shall be an infor-
be, determines that such request pre- mal public hearing, not an adversary
sents genuine issues, or (2) the Admin- proceeding, and shall be conducted so
istrator or Regional Administrator, as as to allow the presentation of public
the case may be, determines in his dis- comments. When the Presiding Officer
cretion that a public hearing is nec- determines that it is necessary or ap-
essary or appropriate, the Adminis- propriate, he shall cause a suitable
trator or the Regional Administrator, record, which may include a verbatim
as the case may be, will set a time and transcript, of the proceedings to be
place for a public hearing in accord- made. Any person may appear at a pub-
ance with § 222.5, and will give notice of lic hearing convened pursuant to § 222.5
such hearing by publication in accord- whether or not he requested the hear-
ance with § 222.3. ing, and may be represented by counsel
(c) In the event the Administrator or or any other authorized representative.
the Regional Administrator, as the The Presiding Officer is authorized to
case may be, determines that a request set forth reasonable restrictions on the
filed pursuant to paragraph (a) of this nature or amount of documentary ma-
section does not comply with the re- terial or testimony presented at a pub-
quirements of such paragraph (a) of lic hearing, giving due regard to the
this section or that such request does relevancy of any such information, and
not present substantial issues of public to the avoidance of undue repetitive-
interest, he shall advise, in writing, the
ness of information presented.
person requesting the hearing of his de-
termination. § 222.8 Recommendations of Presiding
Officer.
§ 222.5 Time and place of hearings.
Within 30 days following the adjourn-
Hearings shall be held in the State in
ment of a public hearing convened pur-
closest proximity to the proposed dump
suant to § 222.5, or within such addi-
site, whenever practicable, and shall be
tional period as the Administrator or
set for the earliest practicable date no
less than 30 days after the receipt of an the Regional Administrator, as the
appropriate request for a hearing or a case may be, may grant to the Pre-
determination by the Administrator or siding Officer for good cause shown,
the Regional Administrator, as the and after full consideration of the com-
case may be, to hold such a hearing ments received at the hearing, the Pre-
without such a request. siding Officer will prepare and forward
to the Administrator or to the Re-
§ 222.6 Presiding Officer. gional Administrator, as the case may
A hearing convened pursuant to this be, written recommendations relating
subchapter shall be conducted by a to the issuance or denial of, or condi-
Presiding Officer. The Administrator tions to be imposed upon, the proposed
or Regional Administrator, as the case permit and the record of the hearing, if
may be, may designate a Presiding Of- any. Such recommendations shall con-
ficer. For adjudicatory hearings held tain a brief statement of the basis for
pursuant to § 222.11, the Presiding Offi- the recommendations including a de-
cer shall be an EPA employee who has scription of evidence relied upon. Cop-
had no prior connection with the per- ies of the Presiding Officer’s rec-
mit application in question, including ommendations shall be provided to any

without limitation, the performance of interested person on request, without
investigative or prosecuting functions charge. Copies of the record will be
197
§ 222.9 40 CFR Ch. I (7–1–21 Edition)
provided in accordance with 40 CFR of any permit pursuant to § 222.9 after a

Part 2. hearing held pursuant to § 222.7, any in-
[42 FR 2471, Jan. 11, 1977; 42 FR 6583, Feb. 3,
terested person who participated in
1977] such hearing may request that an adju-
dicatory hearing be held pursuant to
§ 222.9 Issuance of permits. § 222.11 for the purpose of reviewing
(a) Within 30 days following receipt such determination, or any part there-
of the Presiding Officer’s recommenda- of. Any such request for an adjudica-
tions or, where no hearing has been tory hearing shall be filed with the Ad-
held, following the close of the 30-day ministrator or the Regional Adminis-
period for requesting a hearing as pro- trator, as the case may be, and shall be
vided in § 222.4, the Administrator or in writing, shall identify the person re-
the Regional Administrator, as the questing the adjudicatory hearing and
case may be, shall make a determina- shall state with particularity the
tion with respect to the issuance, de- objections to the determination, the
nial, or imposition of conditions on, basis therefor and the modification
any permit applied for under this Sub- requested.
chapter H and shall give notice to the (b) Whenever a written request satis-
applicant and to all persons who reg- fying the requirements of paragraph (a)
istered their attendance at the hearing of this section has been received and
by providing their name and mailing the Administrator or Regional Admin-
address, if any, by mailing a letter istrator, as the case may be, deter-
stating the determination and stating mines that an adjudicatory hearing is
the basis therefor in terms of the Cri- warranted, the Administrator or the
teria. Regional Administrator, as the case
(b) Any determination to issue or may be, will set a time and place for an
deny any permit after a hearing held adjudicatory hearing in accordance
pursuant to § 222.7 shall take effect no with § 222.5, and will give notice of such
sooner than: hearing by publication in accordance
(1) 10 days after notice of such deter- with § 222.3.
mination is given if no request for an (c) Prior to the conclusion of the ad-
adjudicatory hearing is filed in accord- judicatory hearing and appeal process,
ance with § 222.10(a); or the Administrator or the Regional Ad-
(2) 20 days after notice of such deter- ministrator, as the case may be, in his
mination is given if a request for an ad- discretion may extend the duration of
judicatory hearing is filed in accord- a previously issued permit until a final
ance with paragraph (a) of § 222.10 and determination has been made pursuant
the Administrator or the Regional Ad- to § 222.11 or § 222.12.
ministrator, as the case may be, denies (d) In the event the Administrator or
such request in accordance with para- the Regional Administrator, as the
graph (c) of § 222.10; or case may be, determines that a request
(3) The date on which a final deter- filed pursuant to paragraph (a) of this
mination has been made following an section does not comply with the re-
adjudicatory hearing held pursuant to quirements of such paragraph (a) of
§ 222.11. this section or that such request does
(c) The Administrator or Regional not present substantial issues of public
Administrator, as the case may be, interest, he shall advise, in writing, the
may extend the term of a previously person requesting the adjudicatory
issued permit pending the conclusion of hearing of his determination.
the proceedings held pursuant to (e) Any person requesting an adju-
§§ 222.7 through 222.9. dicatory hearing or requesting admis-
(d) A copy of each permit issued shall sion as a party to an adjudicatory
be sent to the appropriate District Of- hearing shall state in his written re-
fice of the U.S. Coast Guard. quest, and shall by filing such request
consent, that he and his employees and
§ 222.10 Appeal to adjudicatory hear- agents shall submit themselves to di-
ing. rect and cross-examination at any such

(a) Within 10 days following the re- hearing and to the taking of an oath
ceipt of notice of the issuance or denial administered by the Presiding Officer.
198
§ 222.11 Conduct of adjudicatory hear- (3) Disputed issues of law;

ings. (4) Admissibility of any evidence;
(a) Parties. Any interested person (5) Hearing procedures including sub-
may at a reasonable time prior to the mission of oral or written direct testi-
commencement of the hearing submit mony, conduct of cross-examination,
to the Presiding Officer a request to be and the opportunity for oral argu-
admitted as a party. Such request shall ments;
be in writing and shall set forth the in- (6) Any other matter which may ex-
formation which would be required to pedite the hearing or aid in disposition
be submitted by such person if he were of any issues raised therein.
requesting an adjudicatory hearing. (e) Adjudicatory hearing procedures. (1)
Any such request to be admitted as a The burden of going forward with the
party which satisfies the requirements evidence shall:
of this paragraph (a) shall be granted (i) In the case of any adjudicatory
and all parties shall be informed at the hearing held pursuant to § 222.10(b)(1),
commencement of the adjudicatory be on the person filing a request under
hearing of the parties involved. Any § 222.10(a) as to each issue raised by the
party may be represented by counsel or request; and
other authorized representative. EPA (ii) In the case of any adjudicatory
staff representing the Administrator or hearing held pursuant to § 223.2 or pur-
Regional Administrator who took ac- suant to part 226, be on the Environ-
tion with respect to the permit applica- mental Protection Agency.
tion shall be deemed a party. (2) The Presiding Officer shall have
(b) Filing and service. (1) An original the duty to conduct a fair and impar-
and two (2) copies of all documents or tial hearing, to take action to avoid
papers required or permitted to be filed unnecessary delay in the disposition of
shall be filed with the Presiding Offi- proceedings, and to maintain order. He
cer. shall have all powers necessary or ap-
(2) Copies of all documents and pa- propriate to that end, including with-
pers filed with the Presiding Officer out limitation, the following:
shall be served upon all other parties (i) To administer oaths and affirma-
to the adjudicatory hearing. tions;
(c) Consolidation. The Administrator, (ii) To rule upon offers of proof and
or the Regional Administrator in the receive relevant evidence;
case of a hearing arising within his Re- (iii) To regulate the course of the
gion and for which he has been dele- hearing and the conduct of the parties
gated authority hereunder, may, in his and their counsel;
discretion, order consolidation of any (iv) To consider and rule upon all
adjudicatory hearings held pursuant to procedural and other motions appro-
this section whenever he determines priate to the proceedings; and
that consolidation will expedite or sim- (v) To take any action authorized by
plify the consideration of the issues these regulations and in conformance
presented. The Administrator may, in with law.
his discretion, order consolidation and (3) Parties shall have the right to
designate one Region to be responsible cross-examine a witness who appears at
for the conduct of any hearings held an adjudicatory hearing to the extent
pursuant to this section which arise in that such cross-examination is nec-
different Regions whenever he deter- essary or appropriate for a full disclo-
mines that consolidation will expedite sure of the facts. In multi-party pro-
or simplify the consideration of the ceedings the Presiding Officer may
issues presented. limit cross-examination to one party
(d) Pre-hearing conference. The Pre- on each side if he is satisfied that the
siding Officer may hold one or more cross-examination by one party will
prehearing conferences and may issue a adequately protect the interests of
prehearing order which may include other parties.
without limitation, requirements with (4) When a party will not be unfairly
respect to any or all of the following: prejudiced thereby, the Presiding Offi-
(1) Stipulations and admissions; cer may order all or part of the evi-
(2) Disputed issues of fact; dence to be submitted in written form.
199
§ 222.12 40 CFR Ch. I (7–1–21 Edition)
(5) Rulings of the Presiding Officer on ommendations, the Administrator or

the admissibility of evidence, the pro- the Regional Administrator, as the
priety of cross-examination, and other case may be, shall make a determina-
procedural matters, shall be final and tion with respect to all issues raised at
shall appear in the record. such hearing and shall affirm, reverse
(6) Interlocutory appeals may not be or modify the previous or proposed de-
taken. termination, as the case may be. No-
(7) Parties shall be presumed to have tice of such determination shall set
taken exception to an adverse ruling. forth the determination for each such
(8) The proceedings of all hearings issue, shall briefly state the basis
shall be recorded by such means as the therefor and shall be given by mail to
Presiding Officer may determine. The all parties to the adjudicatory hearing.
original transcript of the hearing shall
be a part of the record and the sole offi- § 222.12 Appeal to Administrator.
cial transcript. Copies of the transcript (a)(1) The Administrator delegates to
shall be available from the Environ- the Environmental Appeals Board au-
mental Protection Agency in accord- thority to issue final decisions in ap-
ance with 40 CFR part 2. peals filed under this part. An appeal
(9) The rules of evidence shall not directed to the Administrator, rather
apply. than to the Environmental Appeals
(f) Decision after adjudicatory hearing. Board, will not be considered. This del-
(1) Within 30 days after the conclusion egation of authority to the Environ-
of the adjudicatory hearing, or within mental Appeals Board does not pre-
such additional period as the Adminis- clude the Environmental Appeals
trator or the Regional Administrator, Board from referring an appeal or a
as the case may be, may grant to the motion filed under this part to the Ad-
Presiding Officer for good cause shown, ministrator for decision when the Envi-
the Presiding Officer shall submit to ronmental Appeals Board, in its discre-
the Administrator or the Regional Ad- tion, deems it appropriate to do so.
ministrator, as the case may be, pro- When an appeal or motion is referred
posed findings of fact and conclusions to the Administrator, all parties shall
of law, his recommendation with re- be so notified and the rules in this sec-
spect to any and all issues raised at the tion referring to the Environmental
hearing, and the record of the hearing. Appeals Board shall be interpreted as
Such findings, conclusions and rec- referring to the Administrator.
ommendations shall contain a brief (2) Within 10 days following receipt of
statement of the basis for the rec- the determination of the Regional Ad-
ommendations. Copies of the Presiding ministrator pursuant to paragraph
Officer’s proposed findings of fact, con- (f)(2) of § 222.11, any party to an adju-
clusions of law and recommendations dicatory hearing held in accordance
shall be provided to all parties to the with § 222.11 may appeal such deter-
adjudicatory hearing on request, with- mination to the Environmental Ap-
out charge. peals Board by filing a written notice
(2) Within 20 days following submis- of appeal, or the Environmental Ap-
sion of the Presiding Officer’s proposed peals Board may, on its own initiative,
findings of fact, conclusions of law and review any prior determination.
recommendations, any party may sub- (b) The notice of appeal shall be no
mit written exceptions, no more than more than 40 pages in length and shall
30 pages in length, to such proposed contain:
findings, conclusions and recommenda- (1) The name and address of the per-
tions and within 30 days following the son filing the notice of appeal;
submission of the Presiding Officer’s (2) A concise statement of the facts
proposed findings, conclusions and recon which the person relies and appro-
ommendations any party may file writ- priate citations to the record of the ad-
ten comments, no more than 30 pages judicatory hearing;
in length, on another party’s excep- (3) A concise statement of the legal
tions. Within 45 days following the sub- basis on which the person relies;
mission of the Presiding Officer’s pro- (4) A concise statement setting forth
posed findings, conclusions and rec- the action which the person proposes
200
that the Environmental Appeals Board next day which is not a Saturday, Sun-
take; and day, or legal holiday. Intermediate
(5) A certificate of service of the no- Saturdays, Sundays and legal holidays
tice of appeal on all other parties to shall be excluded from the computa-
the adjudicatory hearing. tion when the period of time prescribed
(c) The effective date of any deter- or allowed is seven days or less.
mination made pursuant to paragraph
(f)(2) of § 222.11 may be stayed by the PART 223—CONTENTS OF PERMITS;
Environmental Appeals Board pending REVISION, REVOCATION OR LIM-
final determination by it pursuant to
this section upon the filing of a notice ITATION OF OCEAN DUMPING
of appeal which satisfies the require- PERMITS UNDER SECTION 104(d)
ments of paragraph (b) of this section OF THE ACT
or upon initiation by the Environ-
mental Appeals Board of review of any Subpart A—Contents of Ocean Dumping
determination in the absence of such Permits Issued Under Section 102 of
notice of appeal. the Act
(d) Within 20 days following the filing Sec.
of a notice of appeal in accordance with 223.1 Contents of special, emergency, gen-
this section, any party to the adjudica- eral, and research permits; posting re-
tory hearing may file a written memo- quirements.
randum, no more than 40 pages in
length, in response thereto. Subpart B—Procedures for Revision, Rev-
(e) Within 45 days following the filing ocation or Limitation of Ocean Dump-
of a notice of appeal in accordance with ing Permits Under Section 104(d) of the
this section, the Environmental Ap- Act
peals Board shall render its final deter- 223.2 Scope of these rules.
mination with respect to all issues 223.3 Preliminary determination; notice.
raised in the appeal to the Environ- 223.4 Request for, scheduling and conduct of
mental Appeals Board and shall affirm, public hearing; determination.
reverse, or modify the previous deter- 223.5 Request for, scheduling and conduct of
mination and briefly state the basis for adjudicatory hearing; determination.
its determination. AUTHORITY: Secs. 102, 104, 107, 108, Marine
(f) In accordance with 5 U.S.C. sec- Protection Research, and Sanctuaries Act of
tion 704, the filing of an appeal to the 1972, as amended (33 U.S.C. 1412, 1414, 1417,
Environmental Appeals Board pursuant 1418)
to this section shall be a prerequisite SOURCE: 42 FR 60702, Nov. 28, 1977, unless
to judicial review of any determination otherwise noted.
to issue or impose conditions upon any
permit, or to modify, revoke or suspend Subpart A—Contents of Ocean
any permit, or to take any other Dumping Permits Issued Under
enforcement action, under this sub- Section 102 of the Act
chapter H.
[42 FR 2471, Jan. 11, 1977, as amended at 57 § 223.1 Contents of special, emergency,
FR 5346, Feb. 13, 1992; 84 FR 31514, July 2, general, and research permits; post-
2019] ing requirements.
(a) All special, emergency and re-
§ 222.13 Computation of time. search permits shall be displayed on
In computing any period of time pre- the vessel engaged in dumping and
scribed or allowed in this part, except shall include the following:
unless otherwise provided, the day on (1) Name of permittee;
which the designated period of time be- (2) Means of conveyance and methods
gins to run shall not be included. The and procedures for release of the mate-
last day of the period so computed is to rials to be dumped;
be included unless it is a Saturday, (3) The port through or from which
Sunday, or a legal holiday in which the such material will be transported for
Environmental Protection Agency is dumping;

not open for business, in which event (4) A description of relevant physical
the period runs until the end of the and chemical properties of the mate-
rials to be dumped;
201
§ 223.2 40 CFR Ch. I (7–1–21 Edition)
(5) The quantity of the material to be ently with the criteria and other fac-
dumped expressed in tons; tors required to be applied in evalu-
(6) The disposal site; ating the permit application.’’
(7) The times at which the permitted (b) In the absence of specific provi-
dumping may occur and the effective sions in these rules, and where appro-
date and expiration date of the permit; priate, questions arising at any stage
(8) Special provisions which, after of the proceedings shall be resolved at
consultation with the Coast Guard, are the discretion of the Presiding Officer,
deemed necessary for monitoring or the Regional Administrator, or the Ad-
surveillance of the transportation or ministrator, as appropriate.
dumping;
(9) Such monitoring relevant to the § 223.3 Preliminary determination; no-
assessment of the impact of permitted tice.
dumping activities on the marine envi- (a) General. Any general, special,
ronment at the disposal site as the Ad- emergency, or research permit issued
ministrator or Regional Administrator, pursuant to section 102 of the Act shall
as the case may be, determine to be
be subject to revision, revocation or
necessary or appropriate; and
limitation, in whole or in part, as the
(10) Any other terms and conditions
result of a determination by the Ad-
determined by the Administrator, or
ministrator or Regional Administrator
Regional Administrator, as the case
that:
may be, to be necessary or appropriate,
including, without limitation, release (1) The cumulative impact of the per-
procedures and requirements for the mittee’s dumping activities or the ag-
continued investigation or develop- gregate impact of all dumping activi-
ment of alternatives to ocean dumping. ties at the dump site designated in the
(b) General permits shall contain permit should be categorized as Impact
such terms and conditions as the Ad- Category I, as defined in § 228.10(c)(1) of
ministrator deems necessary or appro- this subchapter; or
priate. (2) There has been a change in cir-
(c) [Reserved] cumstances relating to the manage-
ment of the disposal site designated in
[42 FR 60702, Nov. 28, 1977, as amended at 73 the permit; or
FR 74986, Dec. 10, 2008]
(3) The dumping authorized by the
permit would violate applicable water
Subpart B—Procedures for Revi- quality standards; or
sion, Revocation or Limitation (4) The dumping authorized by the
of Ocean Dumping Permits permit can no longer be carried out
Under Section 104(d) of the consistent with the criteria set forth in
Act parts 227 and 228.
(b) Preliminary determination. When-
§ 223.2 Scope of these rules. ever any person authorized by the Ad-
(a) These rules of practice shall gov- ministrator or Regional Administrator
ern all proceedings under section 104(d) to (1) periodically review permits pur-
of the Marine Protection, Research, suant to section 104(d) of the Act or (2)
and Sanctuaries Act of 1972, as amend- otherwise assess the need for revision,
ed (33 U.S.C. 1414(d)), to revise, revoke revocation or limitation of a permit
or limit the terms and conditions of makes any of the determinations listed
any permit issued pursuant to section in paragraph (a) of this section with re-
102 of the Act. Section 104(d) provides spect to a permit issued pursuant to
that ‘‘the Administrator * * * may section 102 of the Act, and additionally
limit or deny the issuance of permits, determines that revision, revocation or
or he may alter or revoke partially or limitation of such permit is warranted,
entirely the terms of permits issued by the Administrator or Regional Admin-
him under this title, for the transpor- istrator, as the case may be, shall pro-
tation for dumping, or for the dumping, vide notification of such proposed revi-
or both of specified materials or classes sion, revocation or limitation to the

of materials, where he finds that such permittee named in the permit, if any,
materials cannot be dumped consist- the public, and any cognizant Federal/
202
State agencies pursuant to paragraph gional Administrator, as appropriate,

(c) of this section. determines that such request presents
(c) Form of notification. Notice of any genuine issues, or (2) the Adminis-
proposed revision, revocation or trator or Regional Administrator, as
limitation of a permit shall be sent to the case may be, determines in his dis-
the permittee by certified mail, return cretion that a public hearing is nec-
receipt requested, and shall be pub- essary or appropriate, the Adminis-
lished and otherwise disseminated in trator or Regional Administrator, as
the manner described in § 222.3 (b) the case may be, will set a time and
through (h). place for a public hearing in accord-
(d) Contents of notice. The notice of ance with paragraph (c) of this section
any proposed revision, revocation or and will give notice of such hearing by
limitation of a permit issued pursuant publication in accordance with
to paragraph (b) of this section shall § 223.3(c). In the event the Adminis-
include, in addition to any other mate- trator or the Regional Administrator,
rials, the following: as the case may be, determines that a
(1) A brief description of the contents request filed pursuant to paragraph (a)
of the permit, as set forth in § 223.1; of this section does not comply with
(2) A description of the proposed revi- the requirements of paragraph (a) or
sion, revocation, or limitation; that such request does not present gen-
(3) A statement of the reason for such uine issues, he shall advise, in writing,
proposed revision, revocation, or limi- the person requesting the hearing of
tation; and his determination.
(4) A statement that within thirty (c) Time and place of hearing. Any
(30) days of the date of dissemination of hearing authorized pursuant to this
the notice, any person may request a Section by the Administrator or Re-
public hearing on the proposed revi- gional Administrator, as the case may
sion, revocation or limitation. be, shall be held in the city in which
[42 FR 60702, Nov. 28, 1977, as amended at 73 the Environmental Protection Agency
FR 74986, Dec. 10, 2008] Regional Office which issued the per-
mit is located, whenever practicable,
§ 223.4 Request for, scheduling and and shall be set for the earliest prac-
conduct of public hearing; deter- ticable date, but in no event less than
mination. thirty (30) days after the receipt of an
(a) Request for hearing. Within thirty appropriate request for a hearing or a
(30) days of the date of the dissemina- determination by the Administrator or
tion of any notice required by § 223.2(b), the Regional Administrator, as the
any person may request the Adminis- case may be, to hold such a hearing
trator or Regional Administrator, as without such a request.
appropriate, to hold a public hearing (d) Presiding Officer. Any hearing con-
on the proposed revision, revocation or vened pursuant to this part shall be
limitation by submitting a written re- conducted by a Presiding Officer, who
quest containing the following: shall be either a Regional Judicial Offi-
(1) Identification of the person re- cer or a person having the qualifica-
questing the hearing and his interest in tions of the members of the Environ-
the proceeding; mental Appeals Board (described in 40
(2) A statement of any objections to CFR 1.25(e)) if assigned by the Adminis-
the proposed revision, revocation or trator or the qualifications of a Re-
limitation or to any facts or reasons gional Judicial Officer if assigned by
identified as supporting such revision, the Regional Administrator, as appro-
revocation or limitation; and priate. Such person shall be an attor-
(3) A statement of the issues which ney who is a permanent or temporary
such person proposes to raise for con- employee of the Agency, who is not
sideration at such hearing. employed by the Region’s or Head-
(b) Grant or denial of hearing; notifica- quarters’ enforcement offices, and who
tion. Whenever (1) a written request has had no connection with the prepa-
satisfying the requirements of para- ration or presentation of evidence for

graph (a) of this section has been re- any hearing in which he participates as
ceived, and the Administrator or Re- Judicial Officer.
203
§ 223.5 40 CFR Ch. I (7–1–21 Edition)
(e) Conduct of the public hearing. The (g) Determination of the Administrator
Presiding Officer shall be responsible or Regional Administrator. Upon receipt
for the expeditious conduct of the hear- of the Presiding Officer’s recommenda-
ing. The hearing shall be an informal tions or, where no hearing has been
public hearing, not an adversary pro- held, upon termination of the thirty
ceeding, and shall be conducted so as to (30)-day period for requesting a hearing
allow the presentation of public com- provided in paragraph (a) of this sec-
ments. When the Presiding Officer de- tion, the Administrator or the Re-
termines that it is necessary or appro- gional Administrator, as the case may
priate, he shall cause a suitable record, be, shall make a determination with
which may include a verbatim tran- respect to the modification, revocation
script, of the proceedings to be made. or suspension of the permit. Such de-
Any person may appear at a public termination shall include a description
hearing convened pursuant to this sec- of the permit revision, revocation or
tion whether or not he requested the limitation, the basis therefor, and the
hearing, and may be represented by effective date. A copy of such deter-
counsel or any other authorized rep- mination shall be mailed to the per-
resentative. The Presiding Officer is mittee and each person who registered
authorized to set forth reasonable re- his attendance at the hearing by pro-
strictions on the nature or amount of viding his name and mailing address.
documentary material or testimony
presented at a public hearing, giving [42 FR 60702, Nov. 28, 1977, as amended at 57
FR 5346, Feb. 13, 1992; 84 FR 31514, July 2,
due regard to the relevancy of any such
2019]
information, and to the avoidance of
undue repetitiveness of information § 223.5 Request for, scheduling and
presented. conduct of adjudicatory hearing;
(f) Recommendations of Presiding Offi- determination.
cer. Within 30 days following the ad-
Within ten (10) days following the re-
journment of a public hearing convened
ceipt of the Administrator’s or Re-
pursuant to this section or within such
gional Administrator’s determination
additional period as the Administrator
issued pursuant to § 223.4(g), any person
or the Regional Administrator, as the
who participated in the public hearing
case may be, may grant to the Pre-
siding Officer for good cause shown, held pursuant to § 223.4 may request
and after full consideration of the com- that an adjudicatory hearing be held
ments received at the hearing, the Pre- for the purpose of reviewing such deter-
siding Officer will prepare and forward mination or any part thereof. Such re-
to the Administrator or to the Re- quest shall be submitted and disposed
gional Administrator, as the case may of, and any adjudicatory hearing con-
be, written recommendations relating vened shall be conducted in accordance
to the revision, revocation or limita- with the procedures set forth in
tion of the permit and the record of the §§ 222.10 (a), (b), (d), and (e) and 222.11.
hearing, if any. Such recommendations
shall contain a brief statement of the PART 224—RECORDS AND REPORTS
basis therefor, including a description REQUIRED OF OCEAN DUMPING
of evidence relied upon (1) to support PERMITTEES UNDER SECTION 102
any finding made pursuant to § 223.3(a); OF THE ACT
(2) to justify any proposed revision,
revocation or limitation of the permit; Sec.
and (3) to justify any proposed revision, 224.1 Records of permittees.
revocation or limitation which differs 224.2 Reports.
from that set forth in the notice issued
pursuant to § 223.3(b). Copies of the Pre- AUTHORITY: 33 U.S.C. 1412 and 1418.
siding Officer’s recommendations shall
be provided to any interested person on § 224.1 Records of permittees.
request, without charge. Copies of the Each permittee named in a special,

record will be provided in accordance emergency or research permit under
with 40 CFR part 2. section 102 of the Act and each person
204
availing himself of the privilege con- Mariners the dumping location, the
ferred by a general permit, shall main- type of containers, and whether the
tain complete records of the following contents are toxic or explosive. Notifi-
information, which will be available cation shall also be given to the Food
for inspection by the Administrator, and Drug Administration, Shellfish
Regional Administrator, the Com- Sanitation Branch, 5001 Campus Dr.,
mandant of the U.S. Coast Guard, or College Park, MD 20740, as soon as pos-
their respective designees: sible.
(a) The physical and chemical char- [42 FR 2474, Jan. 11, 1977, as amended at 84
acteristics of the material dumped pur- FR 31514, July 2, 2019]
suant to the permit;
(b) The precise times and locations of
dumping; PART 225—CORPS OF ENGINEERS
(c) Any other information required as DREDGED MATERIAL PERMITS
a condition of a permit by the Adminis-
trator or the Regional Administrator, Sec.
225.1 General.
as the case may be.
225.2 Review of Dredged Material Permits.
[42 FR 2474, Jan. 11, 1977, as amended at 73 225.3 Procedure for invoking economic im-
FR 74986, Dec. 10, 2008] pact.
225.4 Waiver by Administrator.
§ 224.2 Reports. AUTHORITY: 33 U.S.C. 1412 and 1418.
(a) Periodic reports. Information re- SOURCE: 42 FR 2475, Jan. 11, 1977, unless
quired to be recorded pursuant to § 224.1 otherwise noted.
shall be reported to the Administrator
or the Regional Administrator, as the § 225.1 General.
case may be, for the periods indicated Applications and authorizations for
within 30 days of the expiration of such Dredged Material Permits under sec-
periods: tion 103 of the Act for the transpor-
(1) For each six-month period, if any, tation of dredged material for the pur-
following the effective date of the per- pose of dumping it in ocean waters will
mit; be evaluated by the U.S. Army Corps of
(2) For any other period of less than Engineers in accordance with the cri-
six months ending on the expiration teria set forth in part 227 and processed
date of the permit; and in accordance with 33 CFR 209.120 with
(3) As otherwise required in the con- special attention to § 209.120(g)(17) and
ditions of the permit. 33 CFR 209.145.
(b) Reports of emergency dumping. If
material is dumped without a permit § 225.2 Review of Dredged Material
pursuant to 40 CFR 220.1(c)(4), the Permits.
owner or operator of the vessel or air- (a) The District Engineer shall send a
craft from which such dumping occurs copy of the public notice to the appro-
shall as soon as feasible inform the Ad- priate Regional Administrator, and set
ministrator, Regional Administrator, forth in writing all of the following in-
or the nearest Coast Guard district of formation:
the incident by radio, telephone, tele- (1) The location of the proposed dis-
graph, or email and shall within 10 posal site and its physical boundaries;
days file a written report with the Ad- (2) A statement as to whether the
ministrator or Regional Administrator site has been designated for use by the
containing the information required Administrator pursuant to section
under § 224.1 and a complete description 102(c) of the Act;
of the circumstances under which the (3) If the proposed disposal site has
dumping occurred. Such description not been designated by the Adminis-
shall explain how human life at sea was trator, a statement of the basis for the
in danger and how the emergency proposed determination why no pre-
dumping reduced that danger. If the viously designated site is feasible and a
material dumped included containers, description of the characteristics of the
the vessel owner or operator shall im- proposed disposal site necessary for its
mediately request the U.S. Coast designation pursuant to part 228 of this
Guard to publish in the local Notice to subchapter H;
205
§ 225.3 40 CFR Ch. I (7–1–21 Edition)
(4) The known historical uses of the Permit for the dumping of dredged ma-
proposed disposal site; terial into ocean waters has been re-
(5) Existence and documented effects jected by a Regional Administrator
of other authorized dumpings that have upon application of the Criteria, the
been made in the dumping area (e.g., District Engineer may determine
heavy metal background reading and whether, under section 103(d) of the
organic carbon content); Act, there is an economically feasible
(6) An estimate of the length of time alternative method or site available
during which disposal will continue at other than the proposed dumping in
the proposed site; ocean waters. If the District Engineer
(7) Characteristics and composition makes any such preliminary deter-
of the dredged material; and mination that there is no economically
(8) A statement concerning a prelimi- feasible alternative method or site
nary determination of the need for and/ available, he shall so advise the Re-
or availability of an environmental im- gional Administrator setting forth his
pact statement. reasons for such determination and
(b) The Regional Administrator will shall submit a report of such deter-
within 15 days of the date the public mination to the Chief of Engineers in
notice and other information required accordance with 33 CFR 209.120 and
to be submitted by paragraph (a) of 209.145.
§ 225.2 are received by him, review the (b) If the decision of the Chief of En-
information submitted and request gineers is that ocean dumping at the
from the District Engineer any addi- designated site is required because of
tional information he deems necessary the unavailability of feasible alter-
or appropriate to evaluate the proposed natives, he shall so certify and request
dumping. that the Secretary of the Army seek a
(c) Using the information submitted waiver from the Administrator of the
by the District Engineer, and any other Criteria or of the critical site designa-
information available to him, the Re- tion in accordance with § 225.4.
gional Administrator will within 15
days after receipt of all requested in- § 225.4 Waiver by Administrator.
formation, make an independent eval-
uation of the proposed dumping in ac- The Administrator shall grant the re-
cordance with the criteria and respond quested waiver unless within 30 days of
to the District Engineer pursuant to his receipt of the notice, certificate
paragraph (d) or (e) of this section. The and request in accordance with para-
Regional Administrator may request graph (b) of § 225.3 he determines in ac-
an extension of this 15 day period to 30 cordance with this section that the
days from the District Engineer. proposed dumping will have an unac-
(d) When the Regional Administrator ceptable adverse effect on municipal
determines that the proposed dumping water supplies, shellfish beds and fish-
will comply with the criteria, he will ery areas (including spawning and
so inform the District Engineer in breeding areas), wildlife, or rec-
writing. reational areas. Notice of the Adminis-
(e) When the Regional Administrator trator’s final determination under this
determines that the proposed dumping section shall be given to the Secretary
will not comply with the criteria he of the Army.
shall so inform the District Engineer in
writing. In such cases, no Dredged Ma- PART 227—CRITERIA FOR THE
terial Permit for such dumping shall be EVALUATION OF PERMIT APPLI-
issued unless and until the provisions CATIONS FOR OCEAN DUMPING
of § 225.3 are followed and the Adminis- OF MATERIALS
trator grants a waiver of the criteria
Subpart A—General
§ 225.3 Procedure for invoking eco- Sec.
nomic impact.
(a) When a District Engineer’s deter- 227.2 Materials which satisfy the environ-
mination to issue a Dredged Material mental impact criteria of subpart B.
206
227.3 Materials which do not satisfy the en- Subpart A—General
vironmental impact criteria set forth in
subpart B. § 227.1 Applicability.
Subpart B—Environmental Impact (a) Section 102 of the Act requires
that criteria for the issuance of ocean
227.4 Criteria for evaluating environmental disposal permits be promulgated after
impact. consideration of the environmental ef-
227.5 Prohibited materials. fect of the proposed dumping oper-
227.6 Constituents prohibited as other than ation, the need for ocean dumping, al-
trace contaminants. ternatives to ocean dumping, and the
227.7 Limits established for specific wastes effect of the proposed action on es-
or waste constituents.
thetic, recreational and economic val-
227.8 Limitations on the disposal rates of
ues and on other uses of the ocean.
toxic wastes.
227.9 Limitations on quantities of waste
These parts 227 and 228 of this sub-
materials. chapter H together constitute the cri-
227.10 Hazards to fishing, navigation, shore- teria established pursuant to section
lines or beaches. 102 of the Act. The decision of the Ad-
227.11 Containerized wastes. ministrator, Regional Administrator or
227.12 Insoluble wastes. the District Engineer, as the case may
227.13 Dredged materials. be, to issue or deny a permit and to im-
pose specific conditions on any permit
Subpart C—Need for Ocean Dumping issued will be based on an evaluation of
the permit application pursuant to the
227.14 Criteria for evaluating the need for criteria set forth in this part 227 and
ocean dumping and alternatives to ocean upon the requirements for disposal site
dumping.
management pursuant to the criteria
227.15 Factors considered.
set forth in part 228 of this subchapter
227.16 Basis for determination of need for
ocean dumping.
H.
(b) With respect to the criteria to be
Subpart D—Impact of the Proposed Dump- used in evaluating disposal of dredged
ing on Esthetic, Recreational and Eco- materials, this section and subparts C,
nomic Values D, E, and G apply in their entirety. To
determine whether the proposed dump-
227.17 Basis for determination. ing of dredged material complies with
227.18 Factors considered. subpart B, only §§ 227.4, 227.5, 227.6,
227.19 Assessment of impact. 227.9, 227.10 and 227.13 apply. An appli-
cant for a permit to dump dredged ma-
Subpart E—Impact of the Proposed terial must comply with all of subparts
Dumping on Other Uses of the Ocean C, D, E, G and applicable sections of B,
227.20 Basis for determination.
to be deemed to have met the EPA cri-
227.21 Uses considered. teria for dredged material dumping
227.22 Assessment of impact. promulgated pursuant to section 102(a)
of the Act. If, in any case, the Chief of
Subpart F [Reserved] Engineers finds that, in the disposition
of dredged material, there is no eco-
Subpart G—Definitions nomically feasible method or site
available other than a dumping site,
227.27 Limiting permissible concentration the utilization of which would result in
(LPC). noncompliance with the criteria estab-
227.28 Release zone.
lished pursuant to subpart B relating
227.29 Initial mixing.
to the effects of dumping or with the
227.30 High-level radioactive waste.
restrictions established pursuant to
227.31 Applicable marine water quality cri-
teria.
section 102(c) of the Act relating to
227.32 Liquid, suspended particulate, and critical areas, he shall so certify and
solid phases of a material. request that the Secretary of the Army
seek a waiver from the Administrator
AUTHORITY: 33 U.S.C. 1412 and 1418. pursuant to part 225.

SOURCE: 42 FR 2476, Jan. 11, 1977, unless (c) The Criteria of this part 227 are
otherwise noted. established pursuant to section 102 of
207
§ 227.2 40 CFR Ch. I (7–1–21 Edition)
the Act and apply to the evaluation of this part, the Administrator or the Re-
proposed dumping of materials under gional Administrator, as the case may
title I of the Act. The Criteria of this be, will deny the permit application.
part 227 deal with the evaluation of
[73 FR 74987, Dec. 10, 2008]
proposed dumping of materials on a
case-by-case basis from information
supplied by the applicant or otherwise Subpart B—Environmental Impact
available to EPA or the Corps of Engi-
neers concerning the characteristics of § 227.4 Criteria for evaluating environ-
the waste and other considerations re- mental impact.
lating to the proposed dumping. This subpart B sets specific environ-
(d) After consideration of the provi- mental impact prohibitions, limits,
sions of §§ 227.28 and 227.29, no permit and conditions for the dumping of ma-
will be issued when the dumping would terials into ocean waters. If the appli-
result in a violation of applicable cable prohibitions, limits, and condi-
water quality standards. tions are satisfied, it is the determina-
§ 227.2 Materials which satisfy the en- tion of EPA that the proposed disposal
vironmental impact criteria of sub- will not unduly degrade or endanger
part B. the marine environment and that the
(a) If the applicant satisfactorily disposal will present:
demonstrates that the material pro- (a) No unacceptable adverse effects
posed for ocean dumping satisfies the on human health and no significant
environmental impact criteria set damage to the resources of the marine
forth in subpart B, a permit for ocean environment;
dumping will be issued unless: (b) No unacceptable adverse effect on
(1) There is no need for the dumping, the marine ecosystem;
and alternative means of disposal are (c) No unacceptable adverse per-
available, as determined in accordance sistent or permanent effects due to the
with the criteria set forth in subpart C; dumping of the particular volumes or
or concentrations of these materials; and
(2) There are unacceptable adverse ef- (d) No unacceptable adverse effect on
fects on esthetic, recreational or eco- the ocean for other uses as a result of
nomic values as determined in accord- direct environmental impact.
ance with the criteria set forth in sub-
part D; or § 227.5 Prohibited materials.
(3) There are unacceptable adverse ef- The ocean dumping of the following
fects on other uses of the ocean as de-
materials will not be approved by EPA
termined in accordance with the cri-
or the Corps of Engineers under any
teria set forth in subpart E.
circumstances:
(b) If the material proposed for ocean
dumping satisfies the environmental (a) High-level radioactive wastes as
impact criteria set forth in subpart B, defined in § 227.30;
but the Administrator or the Regional (b) Materials in whatever form (in-
Administrator, as the case may be, de- cluding without limitation, solids, liq-
termines that any one of the consider- uids, semi-liquids, gases or organisms)
ations set forth in paragraph (a)(1), (2) produced or used for radiological,
or (3) of this section applies, he or she, chemical or biological warfare;
as the case may be, will deny the per- (c) Materials insufficiently described
mit application. by the applicant in terms of their com-
positions and properties to permit ap-
FR 74986, Dec. 10, 2008] plication of the environmental impact
criteria of this subpart B;
§ 227.3 Materials which do not satisfy (d) Persistent inert synthetic or nat-
the environmental impact criteria ural materials which may float or re-
set forth in subpart B. main in suspension in the ocean in
If the material proposed for ocean such a manner that they may interfere
dumping does not satisfy the environ- materially with fishing, navigation, or
mental impact criteria of subpart B of other legitimate uses of the ocean.
208
§ 227.6 Constituents prohibited as waters at or near the dumping site

other than trace contaminants. which would be present in the absence
(a) Subject to the exclusions of para- of dumping, by not more than 50 per-
graphs (f), (g) and (h) of this section, cent; and
the ocean dumping, or transportation (2) Bioassay results on the suspended
for dumping, of materials containing particulate phase of the waste do not
the following constituents as other indicate occurrence of significant mor-
than trace contaminants will not be tality or significant adverse sublethal
approved on other than an emergency effects due to the dumping of wastes
basis: containing the constituents listed in
(1) Organohalogen compounds; paragraph (a) of this section. These
(2) Mercury and mercury compounds; bioassays shall be conducted with ap-
(3) Cadmium and cadmium com- propriate sensitive marine organisms
pounds; as defined in § 227.27(c) using procedures
(4) Oil of any kind or in any form, infor suspended particulate phase bio-
cluding but not limited to petroleum, assays approved by EPA, or, for
oil sludge, oil refuse, crude oil, fuel oil, dredged material, approved by EPA and
heavy diesel oil, lubricating oils, hy- the Corps of Engineers. Procedures ap-
draulic fluids, and any mixtures con- proved for bioassays under this section
taining these, transported for the pur- will require exposure of organisms for a
pose of dumping insofar as these are sufficient period of time and under ap-
not regulated under the FWPCA; propriate conditions to provide reason-
(5) Known carcinogens, mutagens, or able assurance, based on consideration
teratogens or materials suspected to be of the statistical significance of effects
carcinogens, mutagens, or teratogens at the 95 percent confidence level, that,
by responsible scientific opinion. when the materials are dumped, no sig-
(b) These constituents will be consid- nificant undesirable effects will occur
ered to be present as trace contami- due to chronic toxicity of the constitu-
nants only when they are present in ents listed in paragraph (a) of this sec-
materials otherwise acceptable for tion; and
ocean dumping in such forms and (3) Bioassay results on the solid
amounts in liquid, suspended particu- phase of the wastes do not indicate oc-
late, and solid phases that the dumping currence of significant mortality or
of the materials will not cause sig- significant adverse sublethal effects
nificant undesirable effects, including due to the dumping of wastes con-
the possibility of danger associated taining the constituents listed in para-
with their bioaccumulation in marine graph (a) of this section. These bio-
organisms. assays shall be conducted with appro-
(c) The potential for significant un- priate sensitive benthic marine orga-
desirable effects due to the presence of nisms using benthic bioassay proce-
these constituents shall be determined dures approved by EPA, or, for dredged
by application of results of bioassays material, approved by EPA and the
on liquid, suspended particulate, and Corps of Engineers. Procedures ap-
solid phases of wastes according to pro- proved for bioassays under this section
cedures acceptable to EPA, and for will require exposure of organisms for a
dredged material, acceptable to EPA sufficient period of time to provide rea-
and the Corps of Engineers. Materials sonable assurance, based on consider-
shall be deemed environmentally ac- ations of statistical significance of ef-
ceptable for ocean dumping only when fects at the 95 percent confidence level,
the following conditions are met: that, when the materials are dumped,
(1) The liquid phase does not contain no significant undesirable effects will
any of these constituents in concentra- occur due either to chronic toxicity or
tions which will exceed applicable ma- to bioaccumulation of the constituents
rine water quality criteria after allow- listed in paragraph (a) of this section;
ance for initial mixing; provided that and
mercury concentrations in the disposal (4) For persistent organohalogens not
site, after allowance for initial mixing, included in the applicable marine
may exceed the average normal ambi- water quality criteria, bioassay results
ent concentrations of mercury in ocean on the liquid phase of the waste show
209
§ 227.7 40 CFR Ch. I (7–1–21 Edition)
that such compounds are not present in not endanger human health or that of
concentrations large enough to cause domestic animals.
significant undesirable effects due (h) The prohibitions and limitations
either to chronic toxicity or to bioac- of this section do not apply to the con-
cumulation in marine organisms after stituents identified in paragraph (a) of
allowance for initial mixing. this section for the granting of permits
(d) When the Administrator, Re- for the transport of these substances
gional Administrator or District Engi- for the purpose of incineration at sea if
neer, as the case may be, has reason- the applicant can demonstrate that the
able cause to believe that a material stack emissions consist of substances
proposed for ocean dumping contains which are rapidly rendered harmless by
compounds identified as carcinogens, physical, chemical or biological proc-
mutagens, or teratogens for which cri- esses in the sea. Incinerator operations
teria have not been included in the ap- shall comply with requirements which
plicable marine water quality criteria, will be established on a case-by-case
he may require special studies to be basis.
done prior to issuance of a permit to
determine the impact of disposal on [42 FR 2476, Jan. 11, 1977; 43 FR 1071, Jan. 6,
human health and/or marine eco- 1978, as amended at 59 FR 26572, May 20, 1994;
systems. Such studies must provide in- 59 FR 52652, Oct. 18, 1994; 73 FR 74987, Dec. 10,
formation comparable to that required 2008]
under paragraph (c)(3) of this section.
§ 227.7 Limits established for specific
(e) The criteria stated in paragraphs wastes or waste constituents.
(c)(2) and (3) of this section are manda-
tory. The availability of acceptable Materials containing the following
procedures was announced in the FED- constituents must meet the additional
ERAL REGISTER in 1991 and 1996. limitations specified in this section to
(f) The prohibitions and limitations be deemed acceptable for ocean dump-
of this section do not apply to the con- ing:
stituents identified in paragraph (a) of (a) Liquid waste constituents immis-
this section when the applicant can cible with or slightly soluble in sea-
demonstrate that such constituents are water, such as benzene, xylene, carbon
(1) present in the material only as disulfide and toluene, may be dumped
chemical compounds or forms (e.g., only when they are present in the
inert insoluble solid materials) non- waste in concentrations below their
toxic to marine life and non-bio- solubility limits in seawater. This pro-
accumulative in the marine environ- vision does not apply to materials
ment upon disposal and thereafter, or which may interact with ocean water
(2) present in the material only as to form insoluble materials;
chemical compounds or forms which, at (b) Radioactive materials, other than
the time of dumping and thereafter, those prohibited by § 227.5, must be con-
will be rapidly rendered non-toxic to tained in accordance with the provi-
marine life and non-bioaccumulative in sions of § 227.11 to prevent their direct
the marine environment by chemical dispersion or dilution in ocean waters;
or biological degradation in the sea;
(c) Wastes containing living orga-
provided they will not make edible ma-
nisms may not be dumped if the orga-
rine organisms unpalatable; or will not
nisms present would endanger human
endanger human health or that of do-
mestic animals, fish, shellfish, or wild- health or that of domestic animals,
life. fish, shellfish and wildlife by:
(g) The prohibitions and limitations (1) Extending the range of biological
of this section do not apply to the con- pests, viruses, pathogenic microorga-
stituents identified in paragraph (a) of nisms or other agents capable of infest-
this section for the granting of re- ing, infecting or extensively and per-
search permits if the substances are manently altering the normal popu-
rapidly rendered harmless by physical, lations of organisms;
chemical or biological processes in the (2) Degrading uninfected areas; or

sea; provided they will not make edible (3) Introducing viable species not in-
marine organisms unpalatable and will digenous to an area.
210
(d) In the dumping of wastes of high- § 227.10 Hazards to fishing, navigation,

ly acidic or alkaline nature into the shorelines or beaches.
ocean, consideration shall be given to: (a) Wastes which may present a seri-
(1) The effects of any change in acid- ous obstacle to fishing or navigation
ity or alkalinity of the water at the may be dumped only at disposal sites
disposal site; and and under conditions which will insure
(2) The potential for synergistic ef- no unacceptable interference with fish-
fects or for the formation of toxic coming or navigation.
pounds at or near the disposal site. Al- (b) Wastes which may present a haz-
lowance may be made in the permit ard to shorelines or beaches may be
conditions for the capability of ocean dumped only at sites and under condi-
waters to neutralize acid or alkaline tions which will insure no unacceptable
wastes; provided, however, that dump- danger to shorelines or beaches.
ing conditions must be such that the
average total alkalinity or total acid- § 227.11 Containerized wastes.
ity of the ocean water after allowance (a) Wastes containerized solely for
for initial mixing, as defined in § 227.29, transport to the dumping site and ex-
may be changed, based on stoichio- pected to rupture or leak on impact or
metric calculations, by no more than shortly thereafter must meet the ap-
10 percent during all dumping oper- propriate requirements of §§ 227.6, 227.7,
ations at a site to neutralize acid or al- 227.8, 227.9, and 227.10.
kaline wastes. (b) Other containerized wastes will be
(e) Wastes containing biodegradable approved for dumping only under the
constituents, or constituents which following conditions:
consume oxygen in any fashion, may be (1) The materials to be disposed of
dumped in the ocean only under condi- decay, decompose or radiodecay to en-
tions in which the dissolved oxygen vironmentally innocuous materials
after allowance for initial mixing, as within the life expectancy of the con-
tainers and/or their inert matrix; and
defined in § 227.29, will not be depressed
(2) Materials to be dumped are
by more than 25 percent below the nor-
present in such quantities and are of
mally anticipated ambient conditions
such nature that only short-term local-
in the disposal area at the time of
ized adverse effects will occur should
dumping. the containers rupture at any time;
and
§ 227.8 Limitations on the disposal
rates of toxic wastes. (3) Containers are dumped at depths
and locations where they will cause no
No wastes will be deemed acceptable threat to navigation, fishing, shore-
for ocean dumping unless such wastes lines, or beaches.
can be dumped so as not to exceed the
limiting permissible concentration as § 227.12 Insoluble wastes.
defined in § 227.27; Provided, That this (a) Solid wastes consisting of inert
§ 227.8 does not apply to those wastes natural minerals or materials compat-
for which specific criteria are estab- ible with the ocean environment may
lished in § 227.11 or § 227.12. Total quan- be generally approved for ocean dump-
tities of wastes dumped at a site may ing provided they are insoluble above
be limited as described in § 228.8. the applicable trace or limiting permis-
sible concentrations and are rapidly
§ 227.9 Limitations on quantities of and completely settleable, and they are
waste materials.
of a particle size and density that they
Substances which may damage the would be deposited or rapidly dispersed
ocean environment due to the quan- without damage to benthic, demersal,
tities in which they are dumped, or or pelagic biota.
which may seriously reduce amenities, (b) Persistent inert synthetic or nat-
may be dumped only when the quan- ural materials which may float or re-
tities to be dumped at a single time main in suspension in the ocean as pro-
and place are controlled to prevent hibited in paragraph (d) of § 227.5 may
long-term damage to the environment be dumped in the ocean only when they
or to amenities. have been processed in such a fashion
211
§ 227.13 40 CFR Ch. I (7–1–21 Edition)
that they will sink to the bottom and mentally acceptable for ocean dumping
remain in place. only under the following conditions:
(1) The material is in compliance
§ 227.13 Dredged materials. with the requirements of § 227.6; and
(a) Dredged materials are bottom (2)(i) All major constituents of the
sediments or materials that have been liquid phase are in compliance with the
dredged or excavated from the navi- applicable marine water quality cri-
gable waters of the United States, and teria after allowance for initial mixing;
or
their disposal into ocean waters is reg-
(ii) When the liquid phase contains
ulated by the U.S. Army Corps of Engi-
major constituents not included in the
neers using the criteria of applicable
applicable marine water quality cri-
sections of parts 227 and 228. Dredged
teria, or there is reason to suspect syn-
material consists primarily of natural
ergistic effects of certain contami-
sediments or materials which may be
nants, bioassays on the liquid phase of
contaminated by municipal or indus- the dredged material show that it can
trial wastes or by runoff from terres- be discharged so as not to exceed the
trial sources such as agricultural limiting permissible concentration as
lands. defined in paragraph (a) of § 227.27; and
(b) Dredged material which meets the (3) Bioassays on the suspended par-
criteria set forth in the following para- ticulate and solid phases show that it
graphs (b)(1), (2), or (3) of this section is can be discharged so as not to exceed
environmentally acceptable for ocean the limiting permissible concentration
dumping without further testing under as defined in paragraph (b) of § 227.27.
this section: (d) For the purposes of paragraph
(1) Dredged material is composed pre- (c)(2) of this section, major constitu-
dominantly of sand, gravel, rock, or ents to be analyzed in the liquid phase
any other naturally occurring bottom are those deemed critical by the Dis-
material with particle sizes larger than trict Engineer, after evaluating and
silt, and the material is found in areas considering any comments received
of high current or wave energy such as from the Regional Administrator, and
streams with large bed loads or coastal considering known sources of dis-
areas with shifting bars and channels; charges in the area.
or
(2) Dredged material is for beach Subpart C—Need for Ocean
nourishment or restoration and is com- Dumping
posed predominantly of sand, gravel or
shell with particle sizes compatible § 227.14 Criteria for evaluating the
with material on the receiving beaches; need for ocean dumping and alter-
or natives to ocean dumping.
(3) When: (i) The material proposed This subpart C states the basis on
for dumping is substantially the same which an evaluation will be made of
as the substrate at the proposed dis- the need for ocean dumping, and alter-
posal site; and natives to ocean dumping. The nature
(ii) The site from which the material of these factors does not permit the
proposed for dumping is to be taken is promulgation of specific quantitative
far removed from known existing and criteria of each permit application.
historical sources of pollution so as to These factors will therefore be evalu-
provide reasonable assurance that such ated if applicable for each proposed
material has not been contaminated by dumping on an individual basis using
such pollution. the guidelines specified in this subpart
(c) When dredged material proposed C.
for ocean dumping does not meet the
criteria of paragraph (b) of this section, § 227.15 Factors considered.
further testing of the liquid, suspended The need for dumping will be deter-
particulate, and solid phases, as de- mined by evaluation of the following
fined in § 227.32, is required. Based on factors:

the results of such testing, dredged ma- (a) Degree of treatment useful and
terial can be considered to be environ- feasible for the waste to be dumped,
212
and whether or not the waste material petitive with the costs of ocean dump-
has been or will be treated to this de- ing, taking into account the environ-
gree before dumping; mental benefits derived from such ac-
(b) Raw materials and manufacturing tivity, including the relative adverse
or other processes resulting in the environmental impacts associated with
waste, and whether or not these mate- the use of alternatives to ocean dump-
rials or processes are essential to the ing.
provision of the applicant’s goods or (c) The duration of permits issued
services, or if other less polluting ma- under subchapter H and other terms
terials or processes could be used; and conditions imposed in those per-
(c) The relative environmental risks,
mits shall be determined after taking
impact and cost for ocean dumping as
into account the factors set forth in
opposed to other feasible alternatives
including but not limited to: this section. Notwithstanding compli-
(1) Land fill; ance with subparts B, D, and E of this
(2) Well injection; part 227 permittees may, on the basis
(3) Incineration; of the need for and alternatives to
(4) Spread of material over open ocean dumping, be required to termi-
ground; nate all ocean dumping by a specified
(5) Recycling of material for reuse; date, to phase out all ocean dumping
(6) Additional biological, chemical, over a specified period or periods, to
or physical treatment of intermediate continue research and development of
or final waste streams; alternative methods of disposal and
(7) Storage. make periodic reports of such research
(d) Irreversible or irretrievable con- and development in order to provide
sequences of the use of alternatives to additional information for periodic re-
ocean dumping. view of the need for and alternatives to
ocean dumping, or to take such other
§ 227.16 Basis for determination of action as the Administrator, the Re-
need for ocean dumping.
gional Administrator, or District Engi-
(a) A need for ocean dumping will be neer, as the case may be, determines to
considered to have been demonstrated be necessary or appropriate.
when a thorough evaluation of the fac-
tors listed in § 227.15 has been made,
and the Administrator, Regional Ad-
Subpart D—Impact of the Pro-
ministrator or District Engineer, as posed Dumping on Esthetic,
the case may be, has determined that Recreational and Economic
the following conditions exist where Values
applicable:
(1) There are no practicable improve- § 227.17 Basis for determination.
ments which can be made in process (a) The impact of dumping on es-
technology or in overall waste treat- thetic, recreational and economic val-
ment to reduce the adverse impacts of ues will be evaluated on an individual
the waste on the total environment; basis using the following consider-
(2) There are no practicable alterations:
native locations and methods of dis- (1) Potential for affecting rec-
posal or recycling available, including
reational use and values of ocean
without limitation, storage until treat-
waters, inshore waters, beaches, or
ment facilities are completed, which
shorelines;
have less adverse environmental im-
pact or potential risk to other parts of (2) Potential for affecting the rec-
the environment than ocean dumping. reational and commercial values of liv-
(b) For purposes of paragraph (a) of ing marine resources.
this section, waste treatment or im- (b) For all proposed dumping, full
provements in processes and alter- consideration will be given to such
native methods of disposal are prac- nonquantifiable aspects of esthetic,
ticable when they are available at rea- recreational and economic impact as:
sonable incremental cost and energy (1) Responsible public concern for the
expenditures, which need not be com- consequences of the proposed dumping;
213
§ 227.18 40 CFR Ch. I (7–1–21 Edition)
(2) Consequences of not authorizing made based on the effect on esthetic,

the dumping including without limita- recreational and economic values based
tion, the impact on esthetic, recon the factors set forth in this subpart
reational and economic values with re- D, including where applicable, en-
spect to the municipalities and indus- hancement of these values, and the re-
tries involved. sults of the assessment will be ex-
pressed, where possible, on a quan-
§ 227.18 Factors considered. titative basis, such as percentage of a
The assessment of the potential for resource lost, reduction in use days of
impacts on esthetic, recreational and recreational areas, or dollars lost in
economic values will be based on an commercial fishery profits or the prof-
evaluation of the appropriate charac- itability of other commercial enter-
teristics of the material to be dumped, prises.
allowing for conservative rates of dilu-
tion, dispersion, and biochemical deg- Subpart E—Impact of the Pro-
radation during movement of the mate- posed Dumping on Other
rials from a disposal site to an area of Uses of the Ocean
significant recreational or commercial
value. The following specific factors § 227.20 Basis for determination.
will be considered in making such an (a) Based on current state of the art,
assessment: consideration must be given to any
(a) Nature and extent of present and possible long-range effects of even the
potential recreational and commercial most innocuous substances when
use of areas which might be affected by dumped in the ocean on a continuing
the proposed dumping; basis. Such a consideration is made in
(b) Existing water quality, and na- evaluating the relationship of each pro-
ture and extent of disposal activities, posed disposal activity in relationship
in the areas which might be affected by to its potential for long-range impact
the proposed dumping; on other uses of the ocean.
(c) Applicable water quality stand- (b) An evaluation will be made on an
ards; individual basis for each proposed
(d) Visible characteristics of the ma- dumping of material of the potential
terials (e.g., color, suspended particu- for effects on uses of the ocean for pur-
lates) which result in an unacceptable poses other than material disposal. The
estetic nuisance in recreational areas; factors to be considered in this evalua-
(e) Presence in the material of patho- tion include those stated in subpart D,
genic organisms which may cause a but the evaluation of this subpart E
public health hazard either directly or will be based on the impact of the pro-
through contamination of fisheries or posed dumping on specific uses of the
shellfisheries; ocean rather than on overall esthetic,
(f) Presence in the material of toxic recreational and economic values.
chemical constituents released in vol-
umes which may affect humans di- § 227.21 Uses considered.
rectly; An appraisal will be made of the na-
(g) Presence in the material of chem- ture and extent of existing and poten-
ical constituents which may be bio- tial uses of the disposal site itself and
accumulated or persistent and may of any areas which might reasonably be
have an adverse effect on humans di- expected to be affected by the proposed
rectly or through food chain inter- dumping, and a quantitative and quali-
actions; tative evaluation made, where feasible,
(h) Presence in the material of any of the impact of the proposed dumping
constituents which might significantly on each use. The uses considered shall
affect living marine resources of rec- include, but not be limited to:
reational or commercial value. (a) Commercial fishing in open ocean
areas;
§ 227.19 Assessment of impact. (b) Commercial fishing in coastal
An overall assessment of the pro- areas;

posed dumping and possible alternative (c) Commercial fishing in estuarine
methods of disposal or recycling will be areas;
214
(d) Recreational fishing in open terial to justify the use of an applica-

ocean areas; tion factor other than 0.01 as specified
(e) Recreational fishing in coastal in paragraph (a)(2) of this section, such
areas; alternative application factor shall be
(f) Recreational fishing in estuarine used in calculating the LPC.
areas; (b) The limiting permissible con-
(g) Recreational use of shorelines and centration of the suspended particulate
beaches; and solid phases of a material means
(h) Commercial navigation;
that concentration which will not
(i) Recreational navigation;
cause unreasonable acute or chronic
(j) Actual or anticipated exploitation
of living marine resources; toxicity or other sublethal adverse ef-
(k) Actual or anticipated exploi- fects based on bioassay results using
tation of non-living resources, includ- appropriate sensitive marine orga-
ing without limitation, sand and gravel nisms in the case of the suspended par-
places and other mineral deposits, oil ticulate phase, or appropriate sensitive
and gas exploration and development benthic marine organisms in the case
and offshore marine terminal or other of the solid phase; and which will not
structure development; and cause accumulation of toxic materials
(l) Scientific research and study. in the human food chain. Suspended
particulate phase bioaccumulation
§ 227.22 Assessment of impact. testing is not required. These bioassays
The assessment of impact on other are to be conducted in accordance with
uses of the ocean will consider both procedures approved by EPA, or, in the
temporary and long-range effects with- case of dredged material, approved by
in the state of the art, but particular EPA and the Corps of Engineers.
emphasis will be placed on any irre- (c) Appropriate sensitive marine orga-
versible or irretrievable commitment nisms means at least one species each
of resources that would result from the representative of phytoplankton or
proposed dumping. zooplankton, crustacean or mollusk,
and fish species chosen from among the
Subpart F [Reserved] most sensitive species documented in
the scientific literature or accepted by
Subpart G—Definitions EPA as being reliable test organisms to
determine the anticipated impact of
§ 227.27 Limiting permissible concen- the wastes on the ecosystem at the dis-
tration (LPC).
posal site. Bioassays, except on
(a) The limiting permissible con- phytoplankton or zooplankton, shall be
centration of the liquid phase of a ma- run for a minimum of 96 hours under
terial is: temperature, salinity, and dissolved
(1) That concentration of a con- oxygen conditions representing the ex-
stituent which, after allowance for ini- tremes of environmental stress at the
tial mixing as provided in § 227.29, does disposal site. Bioassays on
not exceed applicable marine water
phytoplankton or zooplankton may be
quality criteria; or, when there are no
run for shorter periods of time as ap-
applicable marine water quality cri-
propriate for the organisms tested at
teria,
(2) That concentration of waste or the discretion of EPA, or EPA and the
dredged material in the receiving Corps of Engineers, as the case may be.
water which, after allowance for initial (d) Appropriate sensitive benthic marine
mixing, as specified in § 227.29, will not organisms means two or more species
exceed a toxicity threshold defined as that together represent filter-feeding,
0.01 of a concentration shown to be deposit-feeding, and burrowing charac-
acutely toxic to appropriate sensitive teristics. These organisms shall be cho-
marine organisms in a bioassay carried sen from among the species that are
out in accordance with approved EPA most sensitive for each type they rep-
procedures. resent, and that are documented in the

(3) When there is reasonable sci- scientific literature and accepted by
entific evidence on a specific waste ma- EPA as being reliable test organisms to
215
§ 227.28 40 CFR Ch. I (7–1–21 Edition)
determine the anticipated impact on (1) The liquid and suspended particu-
the site. late phases of the dumped waste may
[42 FR 2476, Jan. 11, 1977; 43 FR 1071, Jan. 6, be assumed to be evenly distributed
1978, as amended at 59 FR 26572, May 20, 1994; after four hours over a column of water
59 FR 52652, Oct. 18, 1994; 61 FR 51203, Sept. bounded on the surface by the release
30, 1996; 65 FR 47325, Aug. 2, 2000; 73 FR 74987, zone and extending to the ocean floor,
Dec. 10, 2008] thermocline, or halocline if one exists,
or to a depth of 20 meters, whichever is
§ 227.28 Release zone. shallower, and
The release zone is the area swept (2) The solid phase of a dumped waste
out by the locus of points constantly may be assumed to settle rapidly to
100 meters from the perimeter of the the ocean bottom and to be distributed
conveyance engaged in dumping activi- evenly over the ocean bottom in an
ties, beginning at the first moment in area equal to that of the release zone
which dumping is scheduled to occur as defined in § 227.28.
and ending at the last moment in (c) When there is reasonable sci-
which dumping is scheduled to occur. entific evidence to demonstrate that
No release zone shall exceed the total other methods of estimating a reason-
surface area of the dumpsite. able allowance for initial mixing are
§ 227.29 Initial mixing. appropriate for a specific material,
such methods may be used with the
(a) Initial mixing is defined to be concurrence of EPA after appropriate
that dispersion or diffusion of liquid, scientific review.
suspended particulate, and solid phases
of a waste which occurs within four § 227.30 High-level radioactive waste.
hours after dumping. The limiting per-
missible concentration shall not be ex- High-level radioactive waste means
ceeded beyond the boundaries of the the aqueous waste resulting from the
disposal site during initial mixing, and operation of the first cycle solvent ex-
shall not be exceeded at any point in traction system, or equivalent, and the
the marine environment after initial concentrated waste from subsequent
mixing. The maximum concentration extraction cycles, or equivalent, in a
of the liquid, suspended particulate, facility for reprocessing irradiated re-
and solid phases of a dumped material actor fuels or irradiated fuel from nu-
after initial mixing shall be estimated clear power reactors.
by one of these methods, in order of § 227.31 Applicable marine water qual-
preference: ity criteria.
(1) When field data on the proposed
dumping are adequate to predict initial Applicable marine water quality cri-
dispersion and diffusion of the waste, teria means the criteria given for ma-
these shall be used, if necessary, in rine waters in the EPA publication
conjunction with an appropriate math- ‘‘Quality Criteria for Water’’ as pub-
ematical model acceptable to EPA or lished in 1976 and amended by subse-
the District Engineer, as appropriate. quent supplements or additions.
(2) When field data on the dispersion
and diffusion of a waste of characteris- § 227.32 Liquid, suspended particulate,
and solid phases of a material.
tics similar to that proposed for dis-
charge are available, these shall be (a) For the purposes of these regula-
used in conjunction with an appro- tions, the liquid phase of a material,
priate mathematical model acceptable subject to the exclusions of paragraph
to EPA or the District Engineer, as ap- (b) of this section, is the supernatant
propriate. remaining after one hour undisturbed
(3) When no field data are available, settling, after centrifugation and fil-
theoretical oceanic turbulent diffusion tration through a 0.45 micron filter.
relationships may be applied to known The suspended particulate phase is the
characteristics of the waste and the supernatant as obtained above prior to
disposal site. centrifugation and filtration. The solid

(b) When no other means of esti- phase includes all material settling to
mation are feasible. the bottom in one hour. Settling shall
216
be conducted according to procedures PART 228—CRITERIA FOR THE MAN-

approved by EPA. AGEMENT OF DISPOSAL SITES
(b) For dredged material, other mate- FOR OCEAN DUMPING
rial containing large proportions of in-
soluble matter, materials which may Sec.
interact with ocean water to form in- 228.1 Applicability.
soluble matter or new toxic com- 228.2 Definitions.
pounds, or materials which may release 228.3 Disposal site management responsibil-
toxic compounds upon deposition, the ities.
Administrator, Regional Adminis- 228.4 Procedures for designation of sites.
trator, or the District Engineer, as the 228.5 General criteria for the selection of
sites.
case may be, may require that the sep- 228.6 Specific criteria for site selection.
aration of liquid, suspended particu- 228.7 Regulation of disposal site use.
late, and solid phases of the material 228.8 Limitations on times and rates of dis-
be performed upon a mixture of the posal.
waste with ocean water rather than on 228.9 Disposal site monitoring.
the material itself. In such cases the 228.10 Evaluating disposal impact.
following procedures shall be used: 228.11 Modification in disposal site use.
228.12 [Reserved]
(1) For dredged material, the liquid
228.13 Guidelines for ocean disposal site
phase is considered to be the baseline or trend assessment surveys
centrifuged and 0.45 micron filtered su- under section 102 of the Act.
pernatant remaining after one hour un- 228.14 [Reserved]
disturbed settling of the mixture re- 228.15 Dumping sites designated on a final
sulting from a vigorous 30-minute agi- basis.
tation of one part bottom sediment AUTHORITY: 33 U.S.C. 1412 and 1418.
from the dredging site with four parts
water (vol/vol) collected from the otherwise noted.
dredging site or from the disposal site,
as appropriate for the type of dredging § 228.1 Applicability.
operation. The suspended particulate The criteria of this part 228 are es-
phase is the supernatant as obtained tablished pursuant to section 102 of the
above prior to centrifugation and fil- Act and apply to the evaluation of pro-
tration. The solid phase is considered posed ocean dumping under title I of
to be all material settling to the bot- the Act. The criteria of this part 228
tom within one hour. Settling shall be deal with the evaluation of the pro-
conducted by procedures approved by posed dumping of material in ocean
EPA and the Corps of Engineers. waters in relation to continuing re-
(2) For other materials, the propor- quirements for effective management
tion of ocean water used shall be the of ocean disposal sites to prevent un-
minimum amount necessary to produce reasonable degradation of the marine
the anticipated effect (e.g., complete environment from all wastes being
neutralization of an acid or alkaline dumped in the ocean. This part 228 is
waste) based on guidance provided by applicable to dredged material disposal
EPA on particular cases, or in accord- sites only as specified in §§ 228.4(e),
ance with approved EPA procedures. 228.9, and 228.12.
For such materials the liquid phase is
the filtered and centrifuged super-
natant resulting from the mixture (a) The term disposal site means a fi-
after 30 minutes of vigorous shaking nally approved and precise geo-
followed by undisturbed settling for graphical area within which ocean
one hour. The suspended particulate dumping of wastes is permitted under
phase is the supernatant as obtained conditions specified in permits issued
above prior to centrifugation and fil- under sections 102 and 103 of the Act.
Such sites are identified by boundaries
tration. The solid phase is the insol-

established by coordinates of latitude
uble material settling to the bottom in
and longitude for each corner, or by co-
that period. ordinates of latitude and longitude for
217
§ 228.3 40 CFR Ch. I (7–1–21 Edition)
the center point and a radius in nau- piled on a routine basis by the Federal
tical miles from that point. Boundary or State agency responsible for com-
coordinates shall be identified as pre- piling such statistics for the general
cisely as is warranted by the accuracy geographical area impacted, or which
with which the site can be located with are under current study by such Fed-
existing navigational aids or by the im- eral or State agencies for potential de-
plantation of transponders, buoys or velopment for commercial or rec-
other means of marking the site. reational use.
(b) The term baseline or trend assess- (h) Normal ambient value means that
ment survey means the planned sam- concentration of a chemical species
pling or measurement of parameters at reasonably anticipated to be present in
set stations or in set areas in and near the water column, sediments, or biota
disposal sites for a period of time suffi- in the absence of disposal activities at
cient to provide synoptic data for de- the disposal site in question.
termining water quality, benthic, or bi- [42 FR 2482, Jan. 11, 1977, as amended at 73
ological conditions as a result of ocean FR 74987, Dec. 10, 2008]
disposal operations. The minimum re-
quirements for such surveys are given § 228.3 Disposal site management re-
in § 228.13. sponsibilities.
(c) The term disposal site evaluation (a) Management of a site consists of
study means the collection, analysis, regulating times, rates, and methods of
and interpretation of all pertinent in- disposal and quantities and types of
formation available concerning an ex- materials disposed of; developing and
isting disposal site, including but not maintaining effective ambient moni-
limited to, data and information from toring programs for the site; con-
trend assessment surveys, monitoring ducting disposal site evaluation and
surveys, special purpose surveys of designation studies; and recommending
other Federal agencies, public data ar- modifications in site use and/or des-
chives, and social and economic studies ignation (e.g., termination of use of the
and records of affected areas. site for general use or for disposal of
(d) The term disposal site designation specific wastes).
study means the collection, analysis (b) Each site, upon final designation,
and interpretation of all available per- will be assigned to either an EPA Re-
tinent data and information on a pro- gional office or to EPA Headquarters
posed disposal site prior to use, includ- for management. These designations
ing but not limited to, that from base- will be consistent with the delegation
line surveys, special purpose surveys of of authority in § 220.4 of this chapter.
other Federal agencies, public data ar- The designated management authority
chives, and social and economic studies is fully responsible for all aspects of
and records of areas which would be af- the management of sites within the
fected by use of the proposed site. general requirements specified in § 220.4
(e) The term management authority and this chapter. Specific requirements
means the EPA organizational entity for meeting the management respon-
assigned responsibility for imple- sibilities assigned to the designated
menting the management functions management authority for each site
identified in § 228.3. are outlined in §§ 228.5 and 228.6.
(f) Statistical significance shall mean [42 FR 2482, Jan. 11, 1977, as amended at 59
the statistical significance determined FR 61129, Nov. 29, 1994; 73 FR 74987, Dec. 10,
by using appropriate standard tech- 2008]
niques of multivariate analysis with
results interpreted at the 95 percent § 228.4 Procedures for designation of
confidence level and based on data re- sites.
lating species which are present in suf- (a) General Permits. Geographical
ficient numbers at control areas to per- areas or regions within which mate-
mit a valid statistical comparison with rials may be dumped under a general
the areas being tested. permit will be published as part of the
(g) Valuable commercial and rec- promulgation of each general permit.

reational species shall mean those spe- (b) Special permits. Areas where ocean
cies for which catch statistics are com- dumping is permitted subject to the
218
specific conditions of individual special the appropriate requirements of §§ 228.5

permits, will be designated by promul- and 228.6, except that:
gation in this part 228, and such des- (i) Baseline or trend assessment re-
ignation will be made based on envi- quirements may be developed on a
ronmental studies of each site, regions case-by-case basis from the results of
adjacent to the site, and on historical research, including that now in
knowledge of the impact of waste dis- progress by the Corps of Engineers.
posal on areas similar to such sites in (ii) An environmental impact assess-
physical, chemical, and biological ment for all sites within a particular
characteristics. All studies for the geographic area may be prepared based
evaluation and potential selection of on complete disposal site designation
dumping sites will be conducted in ac- or evaluation studies on a typical site
cordance with the requirements of or sites in that area. In such cases, suf-
§§ 228.5 and 228.6. The Administrator ficient studies to demonstrate the ge-
may, from time to time, designate spe- neric similarity of all sites within such
cific locations for temporary use for a geographic area will be conducted.
disposal of small amounts of materials (2) In those cases where a rec-
under a special permit only without ommended disposal site has not been
disposal site designation studies when designated by the Administrator, or
such materials satisfy the Criteria and where it is not feasible to utilize a rec-
the Administrator determines that the ommended disposal site that has been
quantities to be disposed of at such designated by the Administrator, the
sites will not result in significant im- District Engineer shall, in consultation
pact on the environment. Such des- with EPA, select a site in accordance
ignations will be done by promulgation with the requirements of §§ 228.5 and
in this part 228, and will be for a speci- 228.6(a). Concurrence by EPA in per-
fied period of time and for specified mits issued for the use of such site for
quantities of materials. the dumping of dredged material at the
(c) Emergency Permits. Dumping sites site will constitute EPA approval of
for materials disposed of under an the use of the site for dredged material
emergency permit will be specified by disposal only.
the Administrator as a permit condi- (3) Sites designated for the ocean
tion and will be based on an individual dumping of dredged material in accord-
appraisal of the characteristics of the ance with the procedures of paragraph
waste and the safest means for its (e) (1) or (2) of this section shall be used
disposal. only for the ocean dumping of dredged
(d) Research Permits. Dumping sites material under permits issued by the
for research permits will be determined U.S. Army Corps of Engineers.
by the nature of the proposed study. [42 FR 2482, Jan. 11, 1977, as amended at 73
Dumping sites will be specified by the FR 74987, Dec. 10, 2008]
Administrator as a permit condition.
(e) Dredged Material Permits. (1) Areas § 228.5 General criteria for the selec-
where ocean dumping of dredged mate- tion of sites.
rial is permitted subject to the specific (a) The dumping of materials into the
conditions of Dredged Material permits ocean will be permitted only at sites or
issued by the U.S. Army Corps of Engi- in areas selected to minimize the inter-
neers will be designated by EPA pro- ference of disposal activities with
mulgation in this part 228, and such other activities in the marine environ-
designation will be made based on envi- ment, particularly avoiding areas of
ronmental studies of each site, regions existing fisheries or shellfisheries, and
adjacent to the site, and on historical regions of heavy commercial or rec-
knowledge of the impact of dredged reational navigation.
material disposal on areas similar to (b) Locations and boundaries of dis-
such sites in physical, chemical, and posal sites will be so chosen that tem-
biological characteristics. All studies porary perturbations in water quality
for the evaluation and potential selec- or other environmental conditions dur-
tion of dredged material disposal sites ing initial mixing caused by disposal
will be conducted in accordance with operations anywhere within the site
219
§ 228.6 40 CFR Ch. I (7–1–21 Edition)
can be expected to be reduced to nor- salination, fish and shellfish culture,

mal ambient seawater levels or to areas of special scientific importance
undetectable contaminant concentra- and other legitimate uses of the ocean;
tions or effects before reaching any (9) The existing water quality and
beach, shoreline, marine sanctuary, or ecology of the site as determined by
known geographically limited fishery available data or by trend assessment
or shellfishery. or baseline surveys;
(c) [Reserved] (10) Potentiality for the development
(d) The sizes of ocean disposal sites or recruitment of nuisance species in
will be limited in order to localize for the disposal site;
identification and control any imme- (11) Existence at or in close prox-
diate adverse impacts and permit the imity to the site of any significant nat-
implementation of effective moni- ural or cultural features of historical
toring and surveilance programs to importance.
prevent adverse long-range impacts. (b) The results of a disposal site eval-
The size, configuration, and location of uation and/or designation study based
any disposal site will be determined as on the criteria stated in paragraphs
a part of the disposal site evaluation or (a)(1) through (11) of this section will
designation study. be presented in support of the site des-
(e) EPA will, wherever feasible, designation promulgation as an environ-
ignate ocean dumping sites beyond the mental assessment of the impact of the
edge of the continental shelf and other use of the site for disposal, and will be
such sites that have been historically used in preparation of environmental
used. impact statement for each site where
such a statement is required by EPA
[42 FR 2482, Jan. 11, 1977, as amended at 73 policy. By publication of a notice in ac-
FR 74987, Dec. 10, 2008]
cordance with this part 228, an environ-
§ 228.6 Specific criteria for site selec- mental impact statement, in draft
tion. form, will be made available for public
comment not later than the time of
(a) In the selection of disposal sites,
publication of the site designation as
in addition to other necessary or ap-
proposed rulemaking, and a final EIS
propriate factors determined by the
will be made available at the time of
Administrator, the following factors
final rulemaking.
will be considered:
(1) Geographical position, depth of [42 FR 2482, Jan. 11, 1977, as amended at 84
water, bottom topography and distance FR 31515, July 2, 2019]
from coast;
(2) Location in relation to breeding, § 228.7 Regulation of disposal site use.
spawning, nursery, feeding, or passage Where necessary, disposal site use
areas of living resources in adult or will be regulated by setting limitations
juvenile phases; on times of dumping and rates of dis-
(3) Location in relation to beaches charge, and establishing a disposal site
and other amenity areas; monitoring program.
(4) Types and quantities of wastes
proposed to be disposed of, and pro- § 228.8 Limitations on times and rates
posed methods of release, including of disposal.
methods of packing the waste, if any; Limitations as to time for and rates
(5) Feasibility of surveillance and of dumping may be stated as part of
monitoring; the promulgation of site designation.
(6) Dispersal, horizontal transport The times and the quantities of per-
and vertical mixing characteristics of mitted material disposal will be regu-
the area, including prevailing current lated by the EPA management author-
direction and velocity, if any; ity so that the limits for the site as
(7) Existence and effects of current specified in the site designation are not
and previous discharges and dumping exceeded. This will be accomplished by
in the area (including cumulative the denial of permits for the disposal of
effects); some materials, by the imposition of

(8) Interference with shipping, fish- appropriate conditions on other per-
ing, recreation, mineral extraction, de- mits and, if necessary, the designation
220
of new disposal sites under the proce- presently supported by permittees may
dures of § 228.4. In no case may the be incorporated into the overall moni-
total volume of material disposed of at toring program insofar as feasible.
any site under special permits cause
the concentration of the total mate- § 228.10 Evaluating disposal impact.
rials or any constituent of any of the (a) Impact of the disposal at each site
materials being disposed of at the site designated under section 102 of the Act
to exceed limits specified in the site
will be evaluated periodically and a re-
designation.
port will be submitted as appropriate
[73 FR 74987, Dec. 10, 2008] as part of the Annual Report to Con-
gress. Such reports will be prepared by
§ 228.9 Disposal site monitoring. or under the direction of the EPA man-
(a) The monitoring program, if agement authority for a specific site
deemed necessary by the Regional Ad- and will be based on an evaluation of
ministrator or the District Engineer, all data available from baseline and
as appropriate, may include baseline or trend assessment surveys, monitoring
trend assessment surveys by EPA, surveys, and other data pertinent to
NOAA, other Federal agencies, or con- conditions at and near a site.
tractors, special studies by permittees, (b) The following types of effects, in
and the analysis and interpretation of addition to other necessary or appro-
data from remote or automatic sam- priate considerations, will be consid-
pling and/or sensing devices. The pri-
ered in determining to what extent the
mary purpose of the monitoring pro-
marine environment has been impacted
gram is to evaluate the impact of dis-
by materials disposed of at an ocean
posal on the marine environment by
referencing the monitoring results to a disposal site:
set of baseline conditions. When dis- (1) Movement of materials into estu-
posal sites are being used on a con- aries or marine sanctuaries, or onto
tinuing basis, such programs may con- oceanfront beaches, or shorelines;
sist of the following components: (2) Movement of materials toward
(1) Trend assessment surveys con- productive fishery or shellfishery
ducted at intervals frequent enough to areas;
assess the extent and trends of environ- (3) Absence from the disposal site of
mental impact. Until survey data or pollution-sensitive biota characteristic
other information are adequate to of the general area;
show that changes in frequency or (4) Progressive, non-seasonal,
scope are necessary or desirable, trend changes in water quality or sediment
assessment and baseline surveys should composition at the disposal site, when
generally conform to the applicable these changes are attributable to mate-
requirements of § 228.13. These surveys rials disposed of at the site;
shall be the responsibility of the (5) Progressive, non-seasonal,
Federal government. changes in composition or numbers of
(2) Special studies conducted by the
pelagic, demersal, or benthic biota at
permittee to identify immediate and
or near the disposal site, when these
short-term impacts of disposal oper-
changes can be attributed to the effects
ations.
(b) These surveys may be supple- of materials disposed of at the site;
mented, where feasible and useful, by (6) Accumulation of material con-
data collected from the use of auto- stituents (including without limita-
matic sampling buoys, satellites or in tion, human pathogens) in marine
situ platforms, and from experimental biota at or near the site.
programs. (c) The determination of the overall
(c) EPA will require the full partici- severity of disposal at the site on the
pation of permittees, and encourage marine environment, including without
the full participation of other Federal limitation, the disposal site and adja-
and State and local agencies in the de- cent areas, will be based on the evalua-
velopment and implementation of dis- tion of the entire body of pertinent

posal site monitoring programs. The data using appropriate methods of data
monitoring and research programs analysis for the quantity and type of
221
§ 228.11 40 CFR Ch. I (7–1–21 Edition)
data available. Impacts will be cat- recreational species as a result of dis-

egorized according to the overall condi- posal activities; or
tion of the environment of the disposal (v) When any toxic waste, toxic waste
site and adjacent areas based on the de- constituent, or toxic byproduct of
termination by the EPA management waste interaction, is consistently iden-
authority assessing the nature and ex- tified in toxic concentrations above
tent of the effects identified in para- normal ambient values outside the dis-
graph (b) of this section in addition to posal site more than 4 hours after dis-
other necessary or appropriate consid- posal.
erations. The following categories shall (2) Impact Category II: The effects of
be used: activities at the disposal site which are
(1) Impact Category I: The effects of not categorized in Impact Category I
activities at the disposal site shall be shall be categorized in Impact Cat-
categorized in Impact Category I when egory II.
one or more of the following conditions
is present and can reasonably be attrib- § 228.11 Modification in disposal site
uted to ocean dumping activities; use.
(i) There is identifiable progressive (a) Modifications in disposal site use
movement or accumulation, in detect- which involve the withdrawal of des-
able concentrations above normal am- ignated disposal sites from use or per-
bient values, of any waste or waste manent changes in the total specified
constituent from the disposal site quantities or types of wastes permitted
within 12 nautical miles of any shore- to be discharged to a specific disposal
line, marine sanctuary designated site will be made through promulga-
under title III of the Act, or critical tion of an amendment to the disposal
area designated under section 102(c) of site designation set forth in this part
the Act; or 228 and will be based on the results of
(ii) The biota, sediments, or water the analyses of impact described in
column of the disposal site, or of any § 228.10 or upon changed circumstances
area outside the disposal site where concerning use of the site.
any waste or waste constituent from (b) Modifications in disposal site use
the disposal site is present in detect- promulgated pursuant to paragraph (a)
able concentrations above normal am- of this section shall not automatically
bient values, are adversely affected by modify conditions of any outstanding
the toxicity of such waste or waste permit issued pursuant to this sub-
constituent to the extent that there chapter H, and provided further that
are statistically significant decreases unless the EPA management authority
in the populations of valuable commer- for such site modifies, revokes or sus-
cial or recreational species, or of spe- pends such permit or any of the terms
cific species of biota essential to the or conditions of such permit in accord-
propagation of such species, within the ance with the provisions of § 232.2 based
disposal site and such other area as on the results of impact analyses as de-
compared to populations of the same scribed in § 228.10 or upon changed cir-
organisms in comparable locations out- cumstances concerning use of the site,
side such site and area; or such permit will remain in force until
(iii) Solid waste material disposed of its expiration date.
at the site has accumulated at the site (c) When the EPA management au-
or in areas adjacent to it, to such an thority determines that activities at a
extent that major uses of the site or of disposal site have placed the site in Im-
adjacent areas are significantly impact Category I, the Administrator or
paired and the Federal or State agency the Regional Administrator, as the
responsible for regulating such uses case may be, shall place such limita-
certifies that such significant impair- tions on the use of the site as are nec-
ment has occurred and states in its cer- essary to reduce the impacts to accept-
tificate the basis for its determination able levels.
of such impairment; or (d) The determination of the Admin-

(iv) There are adverse effects on the istrator as to whether to terminate or
taste or odor of valuable commercial or limit use of a disposal site will be
222
based on the impact of disposal at the data obtained are to be based on the in-
site itself and on the Criteria. formation necessary to evaluate the
site for ocean dumping. The param-
[42 FR 2482, Jan. 11, 1977; 43 FR 1071, Jan. 6,
1978] eters measured will be those indic-
ative, either directly or indirectly, of
§ 228.12 [Reserved] the immediate and long-term impact of
pollutants on the environment at the
§ 228.13 Guidelines for ocean disposal disposal site and adjacent land or
site baseline or trend assessment water areas. An initial disposal site
surveys under section 102 of the evaluation or designation study should
Act. provide an immediate baseline ap-
The purpose of a baseline or trend as- praisal of a particular site, but it
sessment survey is to determine the should also be regarded as the first of a
physical, chemical, geological, and bio- series of studies to be continued as
logical structure of a proposed or exist- long as the site is used for waste
ing disposal site at the time of the sur- disposal.
vey. A baseline or trend assessment (a) Timing. Baseline or trend assess-
survey is to be regarded as a comment surveys will be conducted with
prehensive synoptic and representative due regard for climatic and seasonal
picture of existing conditions; each impact on stratification and other con-
such survey is to be planned as part of ditions in the upper layers of the water
a continual monitoring program column. Where a choice of season is
through which changes in conditions at feasible, trend assessment surveys
a disposal site can be documented and should be made during those months
assessed. Surveys will be planned in co- when pollutant accumulation within
ordination with the ongoing programs disposal sites is likely to be most se-
of NOAA and other Federal, State, vere, or when pollutant impact within
local, or private agencies with missions disposal sites is likely to be most
in the marine environment. The field noticeable.
survey data collection phase of a dis- (1) Where disposal sites are near large
posal site evaluation or designation riverine inflows to the ocean, surveys
study shall be planned and conducted will be done with due regard for the
to obtain a body of information both seasonal variation in river flow. In
representative of the site at the time of some cases several surveys at various
study and obtained by techniques re- river flows may be necessary before a
producible in precision and accuracy in site can be approved.
future studies. A full plan of study (2) When initial surveys show that
which will provide a record of sam- seasonal variation is not significant
pling, analytical, and data reduction and surveys at greater than seasonable
procedures must be developed, docu- intervals are adequate for character-
mented and approved by the EPA man- izing a site, resurveys shall be carried
agement authority. Plans for all sur- out in climatic conditions as similar to
veys which will produce information to those of the original surveys as pos-
be used in the preparation of environ- sible, particularly in depths less than
mental impact statements will be ap- 200 meters.
proved by the Administrator or his des- (b) Duration. The actual duration of a
ignee. This plan of study also shall be field survey will depend upon the size
incorporated as an appendix into a and depth of the site, weather condi-
technical report on the study, together tions during the survey, and the types
with notations describing deviations of data to be collected. For example,
from the plan required in actual oper- for a survey of an area of 100 square
ations. Relative emphasis on individual miles on the continental shelf, includ-
aspects of the environment at each site ing an average dump site and the re-
will depend on the type of wastes dis- gion contiguous to it, an on-site oper-
posed of at the site and the manner in ation would be scheduled for comple-
which such wastes are likely to affect tion within one week of weather suit-
the local environment, but no major able for on-site operations. More on-
feature of the disposal site may be ne- site operating time may be scheduled
glected. The observations made and the for larger or highly complex sites.
223
§ 228.13 40 CFR Ch. I (7–1–21 Edition)
(c) Numbers and locations of sampling laboratories in accordance with the ap-
stations. The numbers and locations of proved plan of study.
sampling stations will depend in part (ii) These parameters are the basic
on the local bathymetry with min- requirements for all sites. For the eval-
imum numbers of stations per site uation of any specific disposal site ad-
fixed as specified in the following sec- ditional measurements may be re-
tions. Where the bottom is smooth or quired, depending on the present or in-
evenly sloping, stations for water col- tended use of the site. Additional pa-
umn measurements and benthic sam- rameters may be selected based on the
pling and collections, other than materials likely to be in wastes
trawls, shall be spaced throughout the dumped at the site, and on parameters
survey area in a manner planned to likely to be affected by constituents of
provide maximum coverage of both the such wastes. Analysis for other con-
disposal site and contiguous control stituents characteristic of wastes dis-
areas, considering known water move- charged to a particular disposal site, or
ment characteristics. Where there are of the impact of such wastes on water
major irregularities in the bottom to- quality, will be included in accordance
pography, such as canyons or gullies, with the approved plan of study.
or in the nature of the bottom, sam- (2) Water quality sampling require-
pling stations for sediments and ments. The number of samples collected
benthic communities shall be spaced to from the water column should be suf-
provide representative sampling of the ficient to identify representative
major different features. changes throughout the water column
such as to avoid short-term impact due
Sampling shall be done within the to disposal activities. The following
dump site itself and in the contiguous key locations should be considered in
area. Sufficient control stations out- selecting water column depths for sam-
side a disposal site shall be occupied to pling:
characterize the control area environ- (i) Surface, below interference from
ment at least as well as the disposal surface waves;
site itself. Where there are known per- (ii) Middle of the surface layer;
sistent currents, sampling in contig- (iii) Bottom of the surface layer;
uous areas shall include at least two (iv) Middle of the thermocline or
stations downcurrent of the dump site, halocline, or both if present;
and at least two stations upcurrent of (v) Near the top of the stable layer
the site. beneath a thermocline or halocline;
(d) Measurements in the water column (vi) Near the middle of a stable layer;
at and near the dump site—(1) Water (vii) As near the bottom as feasible;
quality parameters measured. These shall (viii) Near the center of any zone
include the major indicators of water showing pronounced biological activity
quality, particularly those likely to be or lack thereof.
affected by the waste proposed to be In very shallow waters where only a
dumped. Specifically included at all few of these would be pertinent, as a
stations are measurements of tempera- minimum, surface, mid-depth and bot-
ture, dissolved oxygen, salinity, sus- tom samples shall be taken, with sam-
pended solids, turbidity, total organic ples at additional depths being added
carbon, pH, inorganic nutrients, and as indicated by local conditions. At dis-
chlorophyll a. posal sites far enough away from the
(i) At one station near the center of influence of major river inflows, ocean
the disposal site, samples of the water or coastal currents, or other features
column shall be taken for the analysis which might cause local perturbations
of the following parameters: Mercury, in water chemistry, a minimum of 5
cadmium, copper, chromium, zinc, water chemistry stations should be oc-
lead, arsenic, selenium, vanadium, be- cupied within the boundaries of a site.
ryllium, nickel, pesticides, petroleum Additional stations should be added
hydrocarbons, and persistent organoha- when the area to be covered in the sur-
logens. These samples shall be pre- vey is more than 20 square miles or
served for subsequent analysis by or when local perturbations in water
under the direct supervision of EPA chemistry may be expected because of
224
the presence of one of the features station for each type of device men-
mentioned above. In zones where such tioned above are as follows:
impacts are likely, stations shall be Cores ............................................................ 3.
distributed so that at least 3 stations Grabs ............................................................ 5.
are occupied in the transition from one Dredge .......................................................... 3.
Trawl ............................................................. 20-min. tow.
stable regime to another. Each water
column chemistry station shall be rep- Lesser numbers of replicates may be al-
licated a minimum of 2 times during a lowed in water deeper than 200 meters,
survey except in waters over 200 meters at those sites where pollution impacts
deep. on the bottom are unlikely in the judg-
(3) Water column biota. Sampling sta- ment of the EPA management author-
tions for the biota in the water column ity.
shall be as near as feasible to stations (ii) Selection of bottom stations will
used for water quality; in addition at be based to a large extent on the bot-
least two night-time stations in the tom topography and hydrography as
disposal site and contiguous area are determined by the bathymetric survey.
required. At each station vertical or On the continental shelf, where the
oblique tows with appropriately- bottom has no significant discontinu-
meshed nets shall be used to assess the ities, a bottom station density of at
microzooplankton, the nekton, and the least three times the water column sta-
macrozooplankton, Towing times and tions is recommended, depending on
distances shall be sufficient to obtain the type of site being evaluated. Where
representative samples of organisms there are significant differences in bot-
near water quality stations. Organisms tom topography, additional stations
shall be sorted and identified to taxo- shall be occupied near the disconti-
nomic levels necessary to identify nuity and on each side of it. Beyond
dominant organisms, sensitive or indi- the continental shelf, lesser densities
cator organisms, and organism diver- may be used.
sity. Tissue samples of representative (2) Bathymetric survey. Sufficient
species shall be analyzed for pesticides, tracklines shall be run to develop com-
persistent organohalogens, and heavy plete bottom coverage of bathymetry
metals. Discrete water samples shall with reasonable assurance of accurate
also be used to quantitatively assess coverage of bottom topography, with
the phytoplankton at each station. trackline direction and spacing as
These requirements are the minimum close as available control allows. The
necessary in all cases. Where there are site itself is to be developed at the
discontinuities present, such as greatest density possible, with data to
thermoclines, haloclines, convergences, be collected to a suitable distance
or upwelling, additional tows shall be about the site as is required to identify
made in each water mass as appro- major changes in bathymetry which
priate. might affect the site. Specifications for
(e) Measurements of the benthic re- each bathymetric survey will vary, de-
gion—(1) Bottom sampling. Samples of pending on control, bottom com-
the bottom shall be taken for both plexity, depths, equipment, and map
sediment composition and structure, scale required. In most cases, a bathy-
and to determine the nature and num- metric map at a scale of 1:25,000 to
bers of benthic biota. 1:10,000 will be required, with a min-
(i) At each station sampling may imum of 1–5 meter contour interval ex-
consist of core samples, grab samples, cept in very flat areas. When the fore-
dredge samples, trawls, and bottom going bathymetric detail is available
photography or television, where avail- from recent surveys of the disposal
able and feasible, depending on the na- site, bathymetry during a baseline or
ture of the bottom and the type of dis- trend assessment survey may be lim-
posal site. Each type of sampling shall ited to sonar profiles of bathymetry on
be replicated sufficiently to obtain a transects between sampling stations.
representative set of samples. The min- (3) Nature of bottom. The size distribu-
imum numbers of replicates of success- tion of sediments, mineral character
ful samples at each continental shelf and chemical quality of the bottom
225
§ 228.13 40 CFR Ch. I (7–1–21 Edition)
will be determined to a depth appro- acterized at levels appropriate for the

priate for the type of bottom. The fol- site and type of waste to be dumped.
lowing parameters will be measured at Where depths and climatic conditions
all stations: Particle size distribution, are great enough for a thermocline or
major mineral constituents, texture, halocline to exist, the relationship of
settling rate, and organic carbon. water movement to such a feature
(i) At several stations near the center shall be characterized.
of the disposal site, samples of sedi- (i) Current measurements. When cur-
ments shall be taken for the analysis of rent meters are used as the primary
the following parameters: Mercury, source of hydrodynamic data, at least 4
cadmium, copper, chromium, zinc, current meter stations with at least 3
lead, arsenic, selenium, vanadium, be- meters at depths appropriate for the
ryllium, nickel, pesticides, persistent
observed or expected discontinuities in
organohalogens, and petroleum hydro-
the water column should be operated
carbons. These samples shall be pre-
for as long as possible during the sur-
served for subsequent analysis by or
vey. Where feasible, current meters
under the direct supervision of EPA
laboratories in accordance with the ap- should be deployed at the initiation of
proved plan of study. the survey and recovered after its com-
(ii) These parameters are the basic pletion. Stations should be at least a
requirements for all sites. For the eval- mile apart, and should be placed along
uation of any specific disposal site ad- the long axis of the dumping site. For
ditional measurements may be re- dumping sites more than 10 miles along
quired, depending on the present or in- the long axis, one current meter sta-
tended use of the site. Additional pation every 5 miles should be operated.
rameters may be selected based on the Where there are discontinuities in sur-
materials likely to be in wastes face layers, e.g., due to land runoff,
dumped at the site, and on parameters stations should be operated in each
likely to be affected by constituents of water mass.
such wastes. Such additional param- (ii) Water mass movement. Acceptable
eters will be selected by the EPA man- methods include: dye, drogues, surface
agement authority. drifters, side scan sonar, bottom drift-
(4) Benthic biota. This shall consist of ers, and bottom photography or tele-
a quantitative and qualitative evalua- vision. When such techniques are the
tion of benthic communities including primary source of hydrodynamic data,
macroinfauna and macroepifauna, coverage should be such that all sig-
meiobenthos, and microbenthos, and nificant hydrodynamic features likely
should include an appraisal, based on to affect waste movement are meas-
existing information, of the sensitivity ured.
of indigenous species to the waste pro- (2) Sea state. Observations of sea state
posed to be discharged. Organisms, and of standard meteorological param-
shall be sorted, and identified to taxo-
eters shall be made at 8-hour intervals.
nomic levels necessary to identify
(3) Surface phenomena. Observations
dominant organisms, sensitive or indi-
cator organisms, and organism diver- shall be made of oil slicks, floating ma-
sity. Tissue samples of the following terials, and other visible evidence of
types of organisms shall be analyzed pollution; and, where possible, collec-
for persistent organohalogens, pes- tions of floating materials shall be
ticides, and heavy metals: made.
(i) A predominant species of demersal (g) Survey procedures and techniques.
fish; Techniques and procedures used for
(ii) The most abundant macroin- sampling and analysis shall represent
faunal species; and the state-of-the-art in oceanographic
(iii) A dominant epifaunal species, survey and analytical practice. Survey
with particular preference for a species plans shall specify the methods to be
of economic importance. used and will be subject to approval by
(f) Other measurements—(1) Hydro- EPA.

dynamic features. The direction and (h) Quality assurance. The EPA man-
speed of water movement shall be char- agement authority may require that
226
certain samples be submitted on a rou- the requirements of the MPRSA and its
tine basis to EPA laboratories for anal- accompanying regulations. Disposal-
ysis as well as being analyzed by the and-capping is prohibited at the MBDS
surveyor, and that EPA personnel par- until its efficacy can be effectively
ticipate in some field surveys. demonstrated. The temporary expan-
sion of the MBDS shall be used solely
§ 228.14 [Reserved] for the disposal of suitable dredged ma-
terial generated during the Boston
§ 228.15 Dumping sites designated on a
final basis. Harbor Deep Draft Navigation Project
using the berm-building method de-
(a)(1) The sites identified in this sec- vised and tested by the U.S. Army
tion are approved for dumping the indi- Corps of Engineers. The temporary ex-
cated materials. Designation of these pansion will automatically close upon
sites was based on environmental stud- completion of the Boston Harbor Deep
ies conducted in accordance with the Draft Navigation Project.
provisions of this part 228, and the sites (3) Rhode Island Sound Disposal Site
listed in this section have been found (RISDS).
to meet the site designation criteria of (i) Location: Corner Coordinates (NAD
§§ 228.5 and 228.6. 1983): 41°14′21″ N, 71°23′29″ W; 41°14′21″ N,
(2) Unless otherwise specifically
71°22′09″ W; 41°13′21″ N, 71°23′29″ W;
noted, site management authority for
41°13′21″ N, 71°22′09″ W.
each site set forth in this section is
(ii) Size: One square nautical mile.
delegated to the EPA Regional office
(iii) Depth: Ranges from 115 to 128
under which the site entry is listed.
feet (35 to 39 meters).
(3) Unless otherwise specifically
(iv) Primary use: Dredged material
noted, all ocean dumping site coordi-
disposal.
nates are based upon the North Amer-
(v) Period of use: Continuing use.
ican Datum of 1983 (NAD83). Further,
note that the coordinates for each (vi) Restriction: Disposal shall be lim-
ocean disposal site may include either ited to dredged material. Disposal shall
sexagesimal units (degrees, minutes, comply with conditions set forth in the
seconds) or decimal units (degrees, dec- most recent approved Site Manage-
imal minutes). ment and Monitoring Plan.
(b) Region I Final Dredged Material (4) Central Long Island Sound
Sites. Dredged Material Disposal Site
(1) Portland, Maine, Dredged Mate- (CLDS).
rial Disposal Site. (i) Location: Corner Coordinates (NAD
(i) Location: 43°33′36″ N., 70°02′42″ W.; 1983) 41°9.5′ N., 72°54.4′ W.; 41°9.5′ N.,
43°33′36″ N., 70°01′18″ W.; 43°34′36″ N., 72°51.5′ W.; 41°08.4′ N., 72°54.4′ W.; 41°08.4′
70°02′42″ W.; 43°34′36″ N., 70°01′18″ W. N., 72°51.5′ W.
(ii) Size: One square nautical mile. (ii) Size: A 1.1 by 2.2 nautical mile
(iii) Depth: 50 meters. rectangular area, about 2.42 square
(iv) Primary use: Dredged material. nautical miles in size.
(v) Period of use: Continuing use. (iii) Depth: Ranges from 56 to 77 feet
(vi) Restriction: Disposal shall be lim- (17 to 23.5 meters).
ited to dredged material. (iv) Primary use: Dredged material
(2) Massachusetts Bay Disposal Site. disposal.
(i) Location: Two overlapping circles: (v) Period of use: Continuing use.
Center of existing MBDS: 42°25.1′ N, (vi) Restrictions: The designation in
70°35.0′ W, 1 nautical mile radius; Cen- this paragraph (b)(4) sets forth condi-
ter of temporary expansion: 42°26.417′ tions for the use of the Central Long
N, 70°35.373′ W, 0.75 nautical mile radius Island Sound (CLDS), Western Long Is-
(NAD 1983). land Sound (WLDS) and Eastern Long
(ii) Size: 4.60 sq. nautical miles. Island Sound (ELDS) Dredged Material
(iii) Depth: Range from 70 to 91 me- Disposal Sites. These conditions apply
ters. to all disposal subject to the MPRSA,
(iv) Exclusive Use: Dredged material. namely, all federal projects and non-
(v) Period of Use: Continuing. federal projects greater than 25,000

(vi) Restriction: Disposal shall be lim- cubic yards. All references to ‘‘permit-
ited to dredged material which meets tees’’ shall be deemed to include the
227
§ 228.15 40 CFR Ch. I (7–1–21 Edition)
U.S. Army Corps of Engineers (USACE) no other alternative is determined to

when it is authorizing its own dredged be practicable, suitable course-grained
material disposal from a USACE dredg- material may be placed at the des-
ing project. The conditions for this designated sites.
ignation are as follows: (iii) Suitable fine-grained material. This
(A) Disposal shall be limited to material has typically greater than 20
dredged material from Long Island to 40 percent fine content and, there-
Sound and vicinity. fore, is not typically considered appro-
(B) Disposal shall comply with condi- priate for beach or nearshore place-
tions set forth in the most recent ap- ment, but has been determined to be
proved Site Management and Moni- suitable for open-water placement by
toring Plan. testing and analysis. Materials dredged
(C) Disposal of dredged material at from upper river channels in the Con-
the designated sites pursuant to the necticut, Housatonic and Thames Riv-
designation in this paragraph (b)(4) ers should, whenever possible, be dis-
shall be allowed if, after full consider- posed of at existing Confined Open
ation of recommendations provided by Water sites, on-shore, or through in-
the Long Island Sound Regional Dredg- river placement. Other beneficial uses
ing Team (LIS RDT) if the members of such as marsh creation, should be ex-
the LIS RDT reach consensus, or pro- amined and used whenever practicable.
vided by the LIS RDT’s member agen- If no other alternative is determined to
cies if no consensus is achieved, the be practicable, suitable fine-grained
USACE finds (and EPA does not object material may be placed at the des-
to such finding), based on a fully docu- ignated sites.
mented analysis, that for a given (D) Source reduction. Efforts to con-
dredging project: trol sediment entering waterways can
(1) There are no practicable alter- reduce the need for maintenance dredg-
natives (as defined in 40 CFR 227.16(b)) ing of harbor features and facilities by
to open-water disposal in Long Island reducing shoaling rates. Federal, state
Sound. Any available practicable alter- and local agencies tasked with regu-
native to open-water disposal will be lating discharges into the watershed
fully utilized for the maximum volume should continue to exercise their au-
of dredged material practicable; thorities under various statues and
(2) Determinations relating to para- regulations in a continuing effort to re-
graph (b)(4)(vi)(C)(1) of this section will duce the flow of sediments into state
recognize that, consistent with 40 CFR waterways and harbors.
227.16(b), a practicable alternative to (E) There is established a Long Island
open-water disposal may add reason- Sound Dredging Steering Committee
able incremental costs. Disposal of (Steering Committee), consisting of
dredged material at the designated high-level representatives from the
sites pursuant to this paragraph (b)(4) states of Connecticut and New York,
shall not be allowed to the extent that EPA, USACE, and, as appropriate,
a practicable alternative is available. other federal and state agencies. The
(3) The following standards for dif- Steering Committee will provide pol-
ferent dredged material types have icy-level direction to the Long Island
been appropriately considered: Sound Regional Dredging Team (LIS
(i) Unsuitable material. Disposal shall RDT) and facilitate high-level collabo-
be limited to dredged sediments that ration among the agencies critical to
comply with the Ocean Dumping Regu- promoting the development and use of
lations. beneficial alternatives for dredged ma-
(ii) Suitable sandy material. Suitable terial. State participation on the LIS
coarse-grained material, which gen- RDT and Steering Committee is vol-
erally may include up to 20 percent untary. The Steering Committee is
fines when used for direct beach place- charged with: Establishing a baseline
ment, or up to 40 percent fines when for the volume and percentage of
used for nearshore bar/berm nourish- dredged material being beneficially
ment, should be used for beach or near- used and placed at the open-water
shore bar/berm nourishment or other sites; establishing a reasonable and
beneficial use whenever practicable. If practicable series of stepped objectives,
228
including timeframes, to increase the open-water placement are fully consid-

percentage of beneficially used mate- ered.
rial while reducing the percentage and (ii) Assist the Steering Committee in:
amount being disposed in open water, Establishing a baseline for the volume
and while recognizing that the and percentage of dredged material
amounts of dredged material generated being beneficially used and placed at
by the dredging program will naturally the open water sites; establishing a
fluctuate from year to year; and devel- reasonable and practicable series of
oping accurate methods to track the stepped objectives, including time-
placement of dredged material, with frames, to increase the percentage of
due consideration for annual fluctua- beneficially used material while reduc-
tions. The stepped objectives should in- ing the percentage and amount being
corporate an adaptive management ap- disposed in open water, recognizing
proach while aiming for continuous im- that the volume of dredged material
provement. When tracking progress the generated by the dredging program will
Steering Committee should recognize naturally fluctuate from year to year;
that exceptional circumstances may and developing accurate methods to
result in delays in meeting an objec- track and report on the placement of
tive. Exceptional circumstances should dredged material, with due consider-
be infrequent, irregular, and unpredict- ation for annual fluctuations.
able. It is expected that each of the (iii) In coordination with the Steering
member agencies will commit the nec- Committee, serve as a forum for: Con-
essary resources to support the LIS tinuing exploration of new beneficial
RDT and Steering Committee’s work, use alternatives to open-water dis-
including the collection of data nec- posal; matching the availability of ben-
essary to support establishing the base- eficial use alternatives with dredging
line and tracking and reporting on the projects; exploring cost-sharing oppor-
future disposition of dredged material. tunities; and promoting opportunities
The Steering Committee may utilize for beneficial use of clean, parent ma-
rine sediments often generated in the
the LIS RDT, as appropriate, to carry
development of CAD cells.
out the tasks assigned to it. The Steer-
(iv) Assist the USACE and EPA in
ing Committee, with the support of the
continuing long-term efforts to mon-
LIS RDT, will guide a concerted effort
itor dredging impacts in Long Island
to encourage greater use of beneficial
Sound, including supporting the
use alternatives, including piloting al-
USACE’s DAMOS (Disposal Area Moni-
ternatives, identifying possible re-
toring System) program and related ef-
sources, and eliminating regulatory
forts to study the long-term effects of
barriers, as appropriate.
open-water placement of dredged mate-
(F) The goal of the Long Island rial.
Sound Regional Dredging Team (LIS (2) Geographic scope. The geographic
RDT), working in cooperation with, scope of the LIS RDT includes all of
and support of, the Steering Com- Long Island Sound and adjacent waters
mittee, is to reduce or eliminate wher- landward of the seaward boundary of
ever practicable the open-water dis- the territorial sea (three-mile limit)
posal of dredged material. The LIS or, in other words, from Throgs Neck
RDT’s purpose, geographic scope, mem- to a line three miles seaward of the
bership, organization, and procedures baseline across western Block Island
are provided as follows: Sound.
(1) Purpose. The LIS RDT will: (3) Membership. The LIS RDT shall be
(i) Review dredging projects and comprised of representatives from the
make recommendations as described in states of Connecticut and New York,
paragraph (vi)(C) above. The LIS RDT EPA, USACE, and, as appropriate,
will report to the USACE on its review other federal and state agencies. As
of dredging projects within 30 days of previously noted, state participation
receipt of project information. Project on the LIS RDT is voluntary.
proponents should consult with the LIS (4) Organization and procedures. Spe-
RDT early in the development of those cific details regarding structure (e.g.,
projects to ensure that alternatives to chair, committees, working groups)
229
§ 228.15 40 CFR Ch. I (7–1–21 Edition)
and process shall be determined by the (5) Western Long Island Sound
LIS RDT and may be revised as nec- Dredged Material Disposal Site
essary to best accomplish the team’s (WLDS).
purpose. (i) Location: Corner Coordinates (NAD
(G) If the volume of open-water dis- 1983) 41°00.1′ N., 73°29.8′ W.; 41°00.1′ N.,
posal of dredged material, as measured 73°28.1′ W.; 40°58.9′ N., 73°29.8′ W.; 40°58.9′
in 2026, has not declined or been main- N., 73°28.1′ W.
tained over the prior ten years, then (ii) Size: A 1.2 by 1.3 nautical mile
any party may petition EPA to con- rectangular area, about 1.56 square
duct a rulemaking to amend the re- nautical miles in size.
strictions on the use of the sites. (iii) Depth: Ranges from 79 to 118 feet
(H) Disposal shall be limited to (24 to 36 meters).
dredged sediments that comply with (iv) Primary use: Dredged material
the Ocean Dumping Regulations. disposal.
(I) Disposal of dredged material at (v) Period of use: Continuing use.
the designated sites pursuant to the (vi) Restrictions: See 40 CFR
designation in this paragraph (b)(4) 228.15(b)(4)(vi).
shall not be allowed for any materials (6) Eastern Long Island Sound
subject to a waiver under 33 U.S.C. Dredged Material Disposal Site
1413(d) unless, for any project where a (ELDS).
waiver is sought, the New England or (i) Location: Corner Coordinates
New York District of the USACE pro- (NAD83) 41°15.81′ N., 72°05.23′ W.;
vides notification, by certified mail at 41°16.81′ N., 72°05.23′ W.; 41°16.81′ N.,
least thirty (30) days before making the 72°07.22′ W.; 41°15.97′ N., 72°07.22′ W.;
waiver request, to the Governors of the 41°15.81′ N., 72°06.58′ W.
states of Connecticut and New York (ii) Size: A 1 x 1.5 nautical mile irreg-
and the North Atlantic Division of the ularly-shaped polygon, with an area of
USACE that it will be requesting a 1.3 square nautical miles (nmi2) due to
waiver. the exclusion of bedrock areas. North-
(J) Transportation of dredged mate- central bedrock area corner coordi-
rial to the sites shall only be allowed nates (NAD83) are: 41°16.34′ N., 72°05.89′
when weather and sea conditions will W.; 41°16.81′ N., 72°05.89′ W.; 41°16.81′ N.,
not interfere with safe transportation 72°06.44′ W.; 41°16.22′ N., 72°06.11′ W.
and will not create risk of spillage, (iii) Depth: Ranges from 59 to 100 feet
leak or other loss of dredged material (18 m to 30 m).
in transit. No disposal trips shall be (iv) Primary use: Dredged material
initiated when the National Weather disposal.
Service has issued a gale warning for (v) Period of use: Continuing use.
local waters during the time period (vi) Restrictions: See paragraphs
necessary to complete dumping oper- (b)(4)(vi)(A) through (N) of this section.
ations. (7) Isles of Shoals North Dredged Ma-
(K) Nothing in the designation in this terial Disposal Site (IOSN).
paragraph (b)(4) or elsewhere precludes (i) Location: A 8,530-foot (2,600-meter)
the EPA from exercising its statutory diameter circle on the seafloor with its
authority to designate other ocean dis- center located at 70° 26.995′ W and 43°
posal sites, not subject to the restric- 1.142′ N.
tions in paragraph (b)(4)(vi), or taking (ii) Size: 1,312 acres (57,150,000 square
any subsequent action to modify the feet).
site designation in paragraph (b)(4), (iii) Depth: Ranges from 295 to 328
provided that the EPA makes any such feet (90 to 100 m).
designation or takes such subsequent (iv) Primary use: Dredged material
action through a separate rulemaking disposal.
in accordance with all applicable legal (v) Period of use: Continuing use.
requirements. Nothing in this designa- (vi) Restrictions: Disposal shall be
tion shall be interpreted to restrict the limited to dredged material that meets
EPA’s authorities under the MPRSA or the requirements of the MPRSA and its
the implementing regulations or to implementing regulations at 40 CFR
amend the implementing regulations. parts 220 through 228.
230
(c) Region I Final Other Wastes Rockaway Inlet, Long Island, New
Sites. York.
(1) No final sites. (4) Rockaway Inlet, Long Island, New
(2) [Reserved] York Dredged Material Disposal Site.
(d) Region II Final Dredged Material (i) Location: 40°32′30″ N, 73°55′00″ W;
Sites. 40°32′30″ N, 73°54′00W″; 40°32′00″ N,
(1) Fire Island Inlet, Long Island, 73°54′00″ W; 40°32′00″ N, 73°55′00″ W
New York Dredged Material Disposal (NAD27).
Site. (ii) Size: Approximately 0.38 square
(i) Location: 40°36′49″ N, 73°23′50″ W; nautical miles.
40°37′12″ N, 73°21′30″ W; 40°36′41″ N,
(iii) Depth: Ranges from 8 to 11 me-
73°21′20″ W; 40°36′10″ N, 3°23′40″ W
ters.
(NAD27).
(ii) Size: Approximately 1.09 square (iv) Primary use: Dredged material
nautical miles. disposal.
(iii) Depth: Ranges from 7 to 10 me- (v) Period of use: Continuing use.
ters. (vi) Restrictions: Disposal shall be
(iv) Primary Use: Dredged material limited to dredged material from Rock-
disposal. away Inlet, Long Island, New York.
(v) Period of Use: Continuing use. (5) Shark River, New Jersey Dredged
(vi) Restrictions: Disposal shall be Material Disposal Site.
limited to dredged material from Fire (i) Location: 40°12′48″ N, 73°59′45″ W;
Island Inlet, Long Island, New York. 40°12′44″ N, 73°59′06″ W; 40°11′36″ N,
(2) Jones Inlet, Long Island, New 73°59′28″ W; 40°11′42″ N, 74°00′12″ W
York Dredged Material Disposal Site. (NAD27).
(i) Location: 40°34′32″ N, 73°39′14″ W; (ii) Size: Approximately 0.6 square
40°34′32″ N, 73°37′06″ W; 40°33′48″ N, nautical miles.
73°37′06″ W; 40°33′48″ N, 73°39′14″ W (iii) Depth: Approximately 12 meters.
(NAD27). (iv) Primary use: Dredged material
(ii) Size: Approximately 1.19 square disposal.
nautical miles. (v) Period of use: Continuing use.
(iii) Depth: Ranges from 7 to 10 me-
(vi) Restrictions: Disposal shall be
ters.
(iv) Primary use: Dredged material limited to dredged material from
disposal. Shark River Inlet, New Jersey.
(v) Period of use: Continuing use. (6) Historical Area Remediation Site
(vi) Restrictions: Disposal shall be (HARS) Designation/Mud Dump Site
limited to dredged material from Jones Termination.
Island Inlet, Long Island, New York. (i) Status of Former Mud Dump Site:
(3) East Rockaway Inlet, Long Island The Mud Dump Site, designated as an
NY Dredged Material Disposal Site. Impact Category I site on May 4, 1984,
(i) Location: 40°34′36″ N, 73°49′00″ W; is terminated.
40°35′06″ N, 73°47′06″ W; 40°34′10″ N, (ii) Location: (A) The HARS (which
73°48′06″ W; 40°34′12″ N, 73°47′17″ W includes the 2.2 square nautical mile
(NAD27). area of the former Mud Dump Site) is a
(ii) Size: Approximately 0.81 square 15.7 square nautical mile area located
nautical miles. approximately 3.5 nautical miles east
(iii) Depth: Ranges from 6 to 9 me- of Highlands, New Jersey and 7.7 nau-
ters. tical miles south of Rockaway, Long
(iv) Primary use: Dredged material Island. The HARS consists of a Pri-
disposal. mary Remediation Area (PRA), a Buff-
(v) Period of use: Continuing use. er Zone, and a No Discharge Zone. The
(vi) Restrictions: Disposal shall be HARS is bounded by the following co-
limited to dredged material from East ordinates:
Latitude Longitude Latitude Longitude
Point DMS DMS DDM DDM
A ............................................ 40°25′39″ N ............... 73°53′55″ W .............. 40°25.65′ N ............... 73°53.92′ W.

M ............................................ 40°25′39″ N ............... 73°48′58″ W .............. 40°25.65′ N ............... 73°48.97″ W.
P ............................................ 40°21′19″ N ............... 73°48′57″ W .............. 40°21.32′ N ............... 73°48.95′ W.
231
§ 228.15 40 CFR Ch. I (7–1–21 Edition)

R ............................................ 40°21′19″ N ............... 73°52′30″ W .............. 40°21.32′ N ............... 73°52.50′ W.

S ............................................ 40°21′52″ N ............... 73°53′55″ W .............. 40°21.87′ N ............... 73°53.92′ W.
V ............................................ 40°21′52″ N ............... 73°52′30″ W .............. 40°21.87′ N ............... 73°52.50′ W.
DMS = Degrees, Minutes, Seconds.
DDM = Degrees, Decimal Minutes.
(B) The PRA, is a 9.0 square nautical Remediation. The PRA is bounded by
mile area to be remediated with at the following coordinates:
least a 1 meter cap of the Material for
B ............................................ 40°25′23″ N ............... 73°53′34″ W .............. 40°25.38′ N ............... 73°53.57′ W.

D ............................................ 40°25′22″ N ............... 73°52′08″ W .............. 40°25.37′ N ............... 73°52.13′ W.
F ............................................ 40°23′13″ N ............... 73°52′09″ W .............. 40°23.22′ N ............... 73°52.15″ W.
G ............................................ 40°23′13″ N ............... 73°51′28″ W .............. 40°23.22′ N ............... 73°51.47′ W.
H ............................................ 40°22′41″ N ............... 73°51′28″ W .............. 40°22.68′ N ............... 73°51.47′ W.
I .............................................. 40°22′41″ N ............... 73°50′43″ W .............. 40°22.68′ N ............... 73°50.72′ W.
L ............................................. 40°25′22″ N ............... 73°50′44″ W .............. 40°25.37′ N ............... 73°50.73′ W.
N ............................................ 40°25′22″ N ............... 73°49′19″ W .............. 40°25.37′ N ............... 73°49.32′ W.
O ............................................ 40°21′35″ N ............... 73°49′19″ W .............. 40°21.58′ N ............... 73°49.32′ W.
Q ............................................ 40°21′36″ N ............... 73°52′08″ W .............. 40°21.60′ N ............... 73°52.13′ W.
T ............................................ 40°22′08″ N ............... 73°52′08″ W .............. 40°22.13′ N ............... 73°52.13′ W.
U ............................................ 40°22′08″ N ............... 73°53′34″ W .............. 40°22.13′ N ............... 73°53.57′ W.
(iii) Size: 15.7 square nautical miles. Placement of Material for Remediation
(iv) Depth: Ranges from 12 to 42 me- within the PRA is not allowed in a 0.27
ters. nautical mile radius around the fol-
(v) Restrictions on Use: lowing coordinates due to the presence
(A) The site will be managed so as to of shipwrecks: 40°25.30′ W, 73°52.80′ N;
reduce impacts within the PRA to ac- 40°25.27′ W, 73°52.13′ N; 40°25.07′ W,
ceptable levels in accordance with 40 73°50.05′ N; 40°22.46′ W, 73°53.27′ N.
CFR 228.11(c). Use of the site will be re-
(C) No placement of material may
stricted to dredged material suitable
take place within the Buffer Zone, al-
for use as the Material for Remedi-
ation. This material shall be selected though this zone may receive material
so as to ensure it will not cause signifi- that incidentally spreads out of the
cant undesirable effects including PRA. The Buffer Zone is an approxi-
through bioaccumulation or unaccept- mately 5.7 square nautical mile area
able toxicity, in accordance with 40 (0.27 nautical mile wide band around
CFR 227.6. the PRA), which is bounded by the fol-
(B) Placement of Material for Reme- lowing coordinates:
diation will be limited to the PRA.
Point Latitude DMS Longitude DMS Latitude DDM Longitude DDM
A ............................................ 40°25′39″ N ............... 73°53′55″ W .............. 40°25.65′ N ............... 73°53.92′ W.

B ............................................ 40°25′23″ N ............... 73°53′34″ W .............. 40°25.38′ N ............... 73°53.57′ W.
C ............................................ 40°25′39″ N ............... 73°51′48″ W .............. 40°25.65′ N ............... 73°51.80′ W.
D ............................................ 40°25′22″ N ............... 73°52′08″ W .............. 40°25.37′ N ............... 73°52.13′ W.
E ............................................ 40°23′48″ N ............... 73°51′48″ W .............. 40°23.80′ N ............... 73°51.80′ W.
F ............................................ 40°23′13″ N ............... 73°52′09″ W .............. 40°23.22′ N ............... 73°52.15′ W.
G ............................................ 40°23′13″ N ............... 73°51′28″ W .............. 40°23.22′ N ............... 73°51.47′ W.
H ............................................ 40°22′41″ N ............... 73°51′28″ W .............. 40°22.68′ N ............... 73°51.47′ W.
I .............................................. 40°22′41″ N ............... 73°50′43″ W .............. 40°22.68′ N ............... 73°50.72′ W.
J ............................................. 40°23′48″ N ............... 73°51′06″ W .............. 40°23.80′ N ............... 73°51.10′ W.
K ............................................ 40°25′39″ N ............... 73°51′06″ W .............. 40°25.65′ N ............... 73°51.10′ W.

L ............................................. 40°25′22″ N ............... 73°50′44″ W .............. 40°25.37′ N ............... 73°50.73′ W.
M ............................................ 40°25′39″ N ............... 73°48′58″ W .............. 40°25.65′ N ............... 73°48.97′ W.
N ............................................ 40°25′22″ N ............... 73°49′19″ W .............. 40°25.37′ N ............... 73°49.32′ W.
232
O ............................................ 40°21′35″ N ............... 73°49′19″ W .............. 40°21.58′ N ............... 73°49.32′ W.

P ............................................ 40°21′19″ N ............... 73°48′57″ W .............. 40°21.32′ N ............... 73°48.95′ W.
Q ............................................ 40°21′36″ N ............... 73°52′08″ W .............. 40°21.60′ N ............... 73°52.13′ W.
R ............................................ 40°21′19″ N ............... 73°52′30″ W .............. 40°21.32′ N ............... 73°52.50′ W.
S ............................................ 40°21′52″ N ............... 73°53′55″ W .............. 40°21.87′ N ............... 73°53.92′ W.
T ............................................ 40°22′08″ N ............... 73°52′08″ W .............. 40°22.13′ N ............... 73°52.13′ W.
U ............................................ 40°22′08″ N ............... 73°53′34″ W .............. 40°22.13′ N ............... 73°53.57′ W.
V ............................................ 40°21′52″ N ............... 73°52′30″ W .............. 40°21.87′ N ............... 73°52.50′ W.
(D) No placement or incidental mately 1.0 square nautical mile area,

spread of the material is allowed with- bounded by the following coordinates:
in the No Discharge Zone, an approxi-
C ............................................ 40°25′39″ N ............... 73°51′48″ W .............. 40°25.65′ N ............... 73°51.80′ W.

E ............................................ 40°23′48″ N ............... 73°51′48″ W .............. 40°23.80′ N ............... 73°51.80′ W.
J ............................................. 40°23′48″ N ............... 73°51′06″ W .............. 40°23.80′ N ............... 73°51.10′ W.
K ............................................ 40°25′39″ N ............... 73°51′06″ W .............. 40°25.65′ N ............... 73°51.10′ W.
(E) HARS-specific Polychlorinated (vi) Restrictions: Disposal shall be

Biphenyl (PCB) Tissue Criterion: Total limited to dredged material from
PCB bioaccumulation worm test re- Manasquan Inlet, New Jersey.
sults for dredged material approved for (8) Absecon Inlet, NJ Dredged Mate-
placement at the HARS as Material for rial Disposal Site.
Remediation shall not exceed the (i) Location: 39°20′39″ N, 74°18′43″ W;
HARS-specific PCB tissue criterion of 39°20′30″ N, 74°18′25″ W; 39°20′03″ N,
113 ppb. This HARS-specific PCB tissue 74°18′43″ W; 39°20′12″ N, 74°19′01″ W
criterion will be applied to the arith- (NAD27).
metic mean concentration reported for (ii) Size: Approximately 0.28 square
the analyses of the worm tissue rep- nautical miles.
(iii) Depth: Approximately 17 meters.
licates exposed to the tested sediments,
(iv) Primary Use: Dredged material
without the use of statistical con-
disposal.
fidence limits.
(v) Period of Use: Continuing use.
(vi) Period of Use: Continuing use (vi) Restrictions: Disposal shall be
until EPA determines that the PRA limited to dredged material from Abse-
has been sufficiently capped with at con Inlet, New Jersey.
least 1 meter of the Material for Reme- (9) Cold Spring Inlet, NJ Dredged Ma-
diation. At that time, EPA will under- terial Disposal Site.
take any necessary rulemaking to de- (i) Location: 38°55′52″ N, 74°53′04″ W;
designate the HARS. 38°55′37″ N, 74°52′55″ W; 38°55′23″ N,
(7) Manasquan, New Jersey Dredged 74°53′27″ W; 38°55′36″ N, 74°53′36″ W
Material Disposal Site. (NAD27).
(i) Location: 40°06′36″ N, 74°01′34″ W; (ii) Size: Approximately 0.13 square
40°06′19″ N, 74°01′39″ W; 40°06′18″ N, nautical miles.
74°01′53″ W; 40°06′41″ N, 74°01′51″ W (iii) Depth: Approximately 9 meters.
(NAD27). (iv) Primary Use: Dredged material
(ii) Size: Approximately 0.11 square disposal.
nautical miles. (v) Period of Use: Continuing use.
(iii) Depth: Approximately 18 meters.
limited to dredged material from Cold
(iv) Primary Use: Dredged material Spring Inlet, New Jersey.

disposal. (10) San Juan Harbor, PR, Dredged
(v) Period of Use: Continuing use. Material Site.
233
§ 228.15 40 CFR Ch. I (7–1–21 Edition)
(i) Location: 18°30′10″ N, 66°09′31″ W; (i) Location: 18°03′42″ N, 65°42′49″ W;

18°30′10″ N, 66°08′29″ W; 18°31′10″ N, 18°03′42″ N, 65°41′47″ W; 18°02′42″ N,
66°08′29″ W; 18°31′10″ N, 66°09′31″ W 65°41′47″ W; 18°02′42″ N, 65°42′49″ W
(NAD27). (NAD27).
(ii) Size: 0.98 square nautical mile. (ii) Size: Approximately 1 square nau-
(iii) Depth: Ranges from 200 to 400 tical mile.
meters. (iii) Depth: Ranges from 549 to 914
(iv) Primary Use: Dredged material. meters.
(v) Period of Use: Continuing use. (iv) Primary Use: Dredged material
(vi) Restriction: Disposal shall be lim- disposal.
ited to dredged material. (v) Period of Use: Continuing use.
(11) Arecibo Harbor, PR Dredged Ma- (vi) Restriction: Disposal shall be lim-
terial Disposal Site. ited to dredged material.
(i) Location: 18°31′00″ N, 66°43′47″ W; (e) Region II Final Other Wastes
18°31′00″ N, 66°42′45″ W; 18°30′00″ N, Sites.
66°42′45″ W; 18°30′00″ N, 66°43′47″ W (1) No final sites.
(NAD27). (2) [Reserved]
(ii) Size: Approximately 1 square nau- (f) Region III Final Dredged Material
tical mile. Sites.
(iii) Depth: Ranges from 101 to 417 (1) Dam Neck, Virginia, Dredged Ma-
meters. terial Disposal Site.
(iv) Primary Use: Dredged material (i) Location: 36°51′24.1″ N., 75°54′41.4″
disposal. W.; 36°51′24.1″ N., 75°53′02.9″ W.;
36°50′52.0″ N., 75°52′49.0″ W.; 36°46′27.4″ N.,
75°51′39.2″ W.; 36°46′27.5″ N., 75°54′19.0″
(vi) Restriction: Disposal shall be lim-
W.; 36°50′05.0″ N., 75°54′19.0″ W.
ited to dredged material.
(ii) Size: 8 square nautical miles.
(12) Mayaguez Harbor, PR Dredged
(iii) Depth: Averages 11 meters.
Material Disposal Site.
(iv) Primary Use: Dredged Material.
(i) Location: 18°15′30″ N, 67°16′13″ W; (v) Period of Use: Continuing use.
18°15′30″ N, 67°15′11″ W; 18°14′30″ N, (vi) Restriction: Disposal shall be lim-
67°15′11″ W; 18°14′30″ N, 67°16′13″ W ited to dredged material from the
(NAD27). mouth of Chesapeake Bay.
(ii) Size: Approximately 1 square nau- (2) Norfolk, VA, Dredged Material
tical mile. Disposal Site.
(iii) Depth: Ranges from 351 to 384 (i) Location: Center point: Latitude—
meters. 36°59′00″ N., Longitude—75°39′00″ W.
(iv) Primary Use: Dredged material (ii) Size: Circular with a radius of 7.4
disposal. kilometers (4 nautical miles).
(v) Period of Use: Continuing use. (iii) Depth: Ranges from 13.1 to 26 me-
(vi) Restriction: Disposal shall be lim- ters.
ited to dredged material. (iv) Primary Use: Dredged material.
(13) Ponce Harbor, PR Dredged Mate- (v) Period of Use: Continuing use.
rial Disposal Site. (vi) Restrictions: Site shall be limited
(i) Location: 17°54′00″ N, 66°37′43″ W; to suitable dredged material which
17°54′00″ N, 66°36′41″ W; 17°53′00″ N, passed the criteria for ocean dumping.
66°36′41″ W; 17°53′00″ N, 66°37′43″ W (g) Region III Final Other Wastes
(NAD27). Sites.
(ii) Size: Approximately 1 square nau- (1) No final sites.
tical mile. (2) [Reserved]
(iii) Depth: Ranges from 329 to 457 (h) Region IV Final Dredged Material
meters. Sites.
(iv) Primary Use: Dredged material (1) Morehead City, NC Dredged Mate-
disposal. rial Disposal Site.
(v) Period of Use: Continuing use. (i) Location: 34°38′30″ N, 76°45′00″ W;
(vi) Restriction: Disposal shall be lim- 34°38′30″ N, 76°41′42″ W; 34°38′09″ N,
ited to dredged material. 76°41′00″ W; 34°36′00″ N, 76°41′00″ W;

(14) Yabucoa Harbor, PR Dredged Ma- 34°36′00″ N, 76°45′00″ W (NAD27).
terial Disposal Site. (ii) Size: 8 square nautical miles.
234
(iii) Depth: Average 12.0 meters. (ii) Size: 4.26 square nautical miles.
(iv) Primary Use: Dredged material. (iii) Depth: Averages 11.4 meters.
(v) Period of Use: Continuing use. (iv) Primary use: Dredged material.
(vi) Restriction: Disposal shall be lim- (v) Period of use: Continuing use.
ited to dredged material from the (vi) Restriction: Disposal shall be lim-
Morehead City Harbor, North Carolina ited to dredged material from the Sa-
area. All material disposed must sat- vannah Harbor area.
isfy the requirements of the ocean (7) Brunswick Harbor, Brunswick,
dumping regulations. Georgia Ocean Dredged Material Dis-
(2) [Reserved] posal Site.
(3) Georgetown Harbor; Georgetown, (i) Location: 31°02′35″ N, 81°17′40″ W;
South Carolina: Ocean Dredged Mate- 31°02′35″ N, 81°16′30″ W; 31°00′30″ N,
rial Disposal Site. 81°16′30″ W; 31°00′30″ N, 81°17′42″ W
(i) Location: 33°11′18″ N, 79°07′20″ W; (NAD27).
33°11′18″ N, 79°05′23″ W; 33°10′38″ N, (ii) Size: Approximately 2 square nau-
79°05′24″ W; 33°10′38″ N, 79°07′21″ W tical miles.
(NAD27). (iii) Depth: Average 9 meters.
(ii) Size: 1 square nautical mile. (iv) Primary use: Dredged material.
(iii) Depth: 6 to 11 meter range. (v) Period of use: Continuing use.
(iv) Primary use: Dredged material. (vi) Restrictions: Disposal shall be
(v) Period of use: Continuing use. limited to suitable dredged material
(vi) Restriction: Disposal shall be lim- from the greater Brunswick, Georgia,
ited to suitable dredged material from vicinity.
the greater Georgetown, South Caro- (8) Fernandina Beach, FL Dredged
lina, area. Material Disposal Site.
(4) [Reserved] (i) Location: 30°33′00″ N, 81°16′52″ W;
(5) Charleston, SC, Ocean Dredged 30°31′00″ N, 81°16′52″ W; 30°31′00″ N,
Material Disposal Site. 81°19′08″ W; 30°33′00″ N, 81°19′08″ W
(i) Location: 32°36.280′ N., 79°43.662′ W.; (NAD27).
32°37.646′ N., 79°46.576′ W.; 32°39.943′ N., (ii) Size: Four square nautical miles.
79°45.068′ W.; 32°38.579′ N., 79°42.152′ W. (iii) Depth: Average 16 meters.
(ii) Size: Approximately 7.4 square (iv) Primary use: Dredged material.
nautical miles in size. (v) Period of use: Continuing Use.
(iii) Depth: Ranges from approxi- (vi) Restriction: Disposal shall be lim-
mately 30 to 45 feet (9 to 13.5 meters). ited to dredged material which meets
(iv) Primary use: Dredged material the criteria given in the Ocean Dump-
from the Charleston Harbor deepening ing Regulations in 40 CFR part 227.
project. (9) Jacksonville, FL Dredged Mate-
(v) Period of Use: Continued use. rial Site.
(vi) Restrictions: (A) Disposal shall be (i) Location: 30° 21.514′ N., 81° 18.555′
limited to dredged material from the W.; 30° 21.514′ N, 81° 17.422′ W.; 30° 20.515′
Charleston, South Carolina, area; N., 81° 17.422′ W.; 30° 20.515′ N, 81° 17.012′
(B) Disposal shall be limited to W.; 30° 17.829′ N., 81° 17.012′ W.; 30° 17.829′
dredged material determined to be N, 81° 18.555′ W.
suitable for ocean disposal according to (ii) Size: Approximately 3.68 nautical
40 CFR 227.13; miles long and 1.34 nautical miles wide
(C) Disposal shall be managed by the (4.56 square nautical miles); 3,861 acres
restrictions and requirements con- (1,562 hectares).
tained in the currently-approved Site (iii) Depth: Ranges from approxi-
Management and Monitoring Plan mately 28 to 61 feet (9 to 19 meters).
(SMMP); (iv) Primary use: Dredged material.
(D) Monitoring, as specified in the (v) Period of use: Continuing use.
SMMP, is required. (vi) Restrictions: (A) Disposal shall be
(6) Savannah, GA Dredged Material limited to dredged material from the
Disposal Site. Jacksonville, Florida, area;
(i) Location: 31°55′53″ N, 80°44′20″ W; (B) Disposal shall be limited to
31°57′55″ N, 80°46′48″ W; 31°57′55″ N, dredged material determined to be

80°44′20″ W; 31°55′53″ N, 80°46′48″ W suitable for ocean disposal according to
(NAD27). 40 CFR 227.13;
235
§ 228.15 40 CFR Ch. I (7–1–21 Edition)
(C) Disposal shall be managed by the less than 10% fines) and meet the
restrictions and requirements con- Ocean Dumping Criteria.
tained in the currently-approved Site (13) Pensacola, Florida Ocean
Management and Monitoring Plan Dredged Material Disposal Site, i.e. the
(SMMP); Pensacola (Offshore) Ocean Dredged
(D) Monitoring, as specified in the Material Disposal Site.
SMMP, is required. (i) Location: 30°08′50″ N., 87°19′30″ W.;
(10) Canaveral Harbor, FL, Dredged 30°08′50″ N., 87°16′30″ W.; 30°07′05″″ N.,
Material Dumpsite. 87°16′30″ W.; 30°07′05″ N., 87°19′30″ W.
(i) Location: 28°20′15″ N., 80°31′11″ W.; (ii) Size: Approximately 6 square stat-
28°18′51″ N., 80°29′15″ W.; 28°17′13″ N., ute miles.
80°30′53″ W.; 28°18′36″ N., 80°32′45″ W. (iii) Depth: Ranges from 65 to 80 feet.
Center coordinates: 28°18′44″ N., (iv) Primary Use: Dredged material.
80°31′00″ W. (NAD 27). (v) Period of Use: Continuing use.
(ii) Size: 4 square nautical miles. (vi) Restrictions: Disposal is restricted
(iii) Depth: Range 47 to 55 feet. to predominantly fine-grained dredged
(iv) Primary Use: Dredged material. material from the greater Pensacola,
(v) Period of Use: Continuing use. Florida area that meets the Ocean
(vi) Restriction: Disposal shall be lim- Dumping Criteria but is not suitable
ited to suitable dredged material from for beach nourishment or disposal at
the greater Canaveral, Florida, vicin- the existing EPA designated Pensacola
ity. (Nearshore) ODMDS (§ 228.15(h)(11)).
(11) Fort Pierce Harbor, FL, Fort The Pensacola (Nearshore) ODMDS is
Pierce, FL, Ocean Dredged material restricted to suitable dredged material
Disposal Site. with a median grain size of >0.125 mm
(i) Location: 27°28′00″ N, 80°12′33″ W; and a composition of <10% fines.
27°28′00″ N, 80°11′27″ W; 27°27′00″ N, (14) Mobile, Alabama Dredged Mate-
80°11′27″ W; and 27°27′00″ N, 80°12′33″ W rial Disposal Site.
(NAD27). (i) Location: Corner Coordinates (NAD
(ii) Size: 1 square nautical mile. 1983) 30° 13.0′ N, 88° 08.8′ W; 30° 09.6′ N,
(iii) Depth: Average range 40 to 54 88° 04.8′ W; 30° 08.5′ N, 88° 05.8′ W; 30°
feet. 08.5′ N, 88° 12.8′ W; 30° 12.4′ N, 88° 12.8′ W.
(iv) Primary Use: Dredged material. (ii) Size: Approximately 23.8 square
(v) Period of Use: Continuing use. nautical miles in size.
(vi) Restrictions: Disposal shall be (iii) Depth: Ranges from 34 to 57 feet
limited to suitable dredged material (10.4 to 17.4 meters).
from the greater Fort Pierce Harbor vi- (iv) Primary use: Dredged material.
cinity. All dredged material consisting (v) Period of use: Continuing use.
of greater than 10% fine grained mate- (vi) Restrictions: (A) Disposal shall be
rial (grain size of less than 0.047mm) by limited to dredged material from the
weight shall be limited to that part of Mobile, Alabama area;
the site east of 80°12′00″ W and south of (B) Disposal shall be limited to
27°27′20″ N (NAD27). dredged material determined to be
(12) Pensacola Nearshore, FL Dredged suitable for ocean disposal according to
Material Disposal Site. 40 CFR 220–228;
(i) Location: 30°17′24″ N, 87°18′30″ W; (C) Transportation and Disposal shall
30°17′00″ N, 87°19′50″ W; 30°15′36″ N, be managed by the restrictions and re-
87°17′48″ W; 30°15′15″ N, 87°19′18″ W quirements contained in the Site Man-
(NAD27). agement and Monitoring Plan
(ii) Size: 2.48 square nautical miles. (SMMP).;
(iii) Depth: Averages 11 meters. (D) Monitoring of the site also shall
(iv) Primary use: Dredged material. be governed by the currently approved
(v) Period of use: Continuing use. SMMP.
(vi) Restriction: Disposal shall be lim- (15) Pascagoula, MS, Ocean Dredged
ited to dredged materials which are Material Dumpsite.
shown to be predominantly sand (de- (i) Location: 30°12′06″ N, 88°44′30″ W;

fined by a median grain size greater 30°11′42″ N, 88°33′24″ W; 30°08′30″ N,
than 0.125 mm and a composition of 88°37′00″ W; and 30°08′18″ N, 88°41′54″ W
236
Center coordinates: 30°10′09″ N, 88°39′12″ 80°03′54″ W; 25°44′30″ N; 80°02′50″ W

W (NAD27). (NAD27). Center coordinates are
(ii) Size: 18.5 square nautical miles. 25°45′00″ N and 80°03′22″ W (NAD27).
(iii) Depth: Average 46 feet, range 38– (ii) Size: Approximately 1 square nau-
52 feet. tical mile.
(iv) Primary Use: Dredged material. (iii) Depth: Ranges from 130 to 240
(v) Period of Use: Continuing use. meters.
(vi) Restriction: Disposal shall be lim- (iv) Primary use: Dredged material.
ited to suitable material from the Mis- (v) Period of use: Continuing use.
sissippi Sound and vicinity. (vi) Restriction: Disposal shall be
(16) Gulfport, Mississippi Dredged limited to suitable dredged material
Material Disposal Site—Eastern Site from the greater Miami, Florida vicin-
(i) Location: 30°11′10″ N, 88°58′24″ W; ity. Disposal shall comply with condi-
30°11′12″ N, 88°57′30″ W; 30°07′36″ N, tions set forth in the most recent ap-
88°54′24″ W; 30°07′24″ N, 88°54′48″ W proved Site Management and Moni-
(NAD27). toring Plan.
(ii) Size: 2.47 square nautical miles. (20) Wilmington, North Carolina;
(iii) Depth: 9.1 meters. Ocean Dredged Material Disposal Site.
(iv) Primary use: Dredged material. (i) Location: 33°46′ N, 78°02.5′ W; 33°46′
(v) Period of use: Continuing use. N, 78°01′ W; 33°41′ N, 78°01′ W; 33°41′ N,
(vi) Restriction: Disposal shall be lim- 78°04′ W (NAD27).
ited to materials which meet the Ocean (ii) Size: Approximately 9.4 square
Dumping Criteria. nautical miles.
(17) Gulfport, MS Dredged Material
(iii) Depth: Ranges from 35–52 feet.
Disposal Site—Western Site.
(iv) Primary use: Dredged material.
(i) Location: 30°12′00″ N, 89°00′30″ W;
(v) Period of use: Continuing use.
30°12′00″ N, 88°59′30″ W; 30°11′00″ N,
89°00′00″ W; 30°07′00″ N, 88°56′30″ W; (vi) Restriction: Disposal shall be
30°06′36″ N, 88°57′00″ W; 30°10′30″ N, limited to suitable dredged material
89°00′36″ W (NAD27). from the greater Wilmington, North
(ii) Size: 5.2 square nautical miles. Carolina vicinity. Disposal shall com-
(iii) Depth: 8.2 meters. ply with conditions set forth in the
(iv) Primary use: Dredged material. most recent approved Site Manage-
(v) Period of use: Continuing use. ment and Monitoring Plan.
(vi) Disposal shall be limited to (21) Palm Beach Harbor, FL Ocean
dredged material which meets the Dredged Material Disposal Site.
Ocean Dumping Criteria. (i) Location (NAD83): 26°47′30″ N.,
(18) Tampa, Florida; Ocean Dredged 79°57′09″ W.; 26°47′30″ N., 79°56′02″ W.;
Material Disposal Site llll Region 26°46′30″ N., 79°57′09″ W.; 26°46′30″ N.,
IV. 79°56′02″ W. Center coordinates are
(i) Location: 27°32′27″ N.; 83°06′02″ W; 26°47′00″ N and 79°56′35″ W.
27°32′27″ N.; 83°03′46″ W.; 27°30′27″ N.; (ii) Size: Approximately 1 square nau-
83°06′02″ W.; 27°30′27″ N.; 83°03′46″ W. tical mile.
(ii) Size: Approximately 4 square nau- (iii) Depth: Ranges from 525 to 625
tical miles. feet.
(iii) Depth: Approximately 22 meters. (iv) Primary use: Dredged material.
(iv) Primary use: Dredged material. (v) Period of use: Continuing use.
(v) Period of use: Continuing use. (vi) Restriction: Disposal shall be
(vi) Restriction: Disposal shall be limited to suitable dredged material.
limited to suitable dredged material Disposal shall comply with conditions
from the greater Tampa, Florida vicin- set forth in the most recent approved
ity. Disposal shall comply with condi- Site Management and Monitoring Plan.
tions set forth in the most recent ap- (22) Port Everglades Harbor, FL
proved Site Management and Moni- Ocean Dredged Material Disposal Site.
toring Plan. (i) Location (NAD83): 26°07′30″ N.,
(19) Miami, Florida; Ocean Dredged 80°02′00″ W.; 26°07′30″ N., 80°01′00″ W.;
Material Disposal Site. 26°06′30″ N., 80°02′00″ W.; 26°06′30″ N.,

(i) Location: 25°45′30″ N; 80°03′54″ W; 80°01′00″ W. Center coordinates are
25°45′30″ N; 80°02′50″ W; 25°44′30″ N; 26°07′00″ N and 80°01′30″ W.
237
§ 228.15 40 CFR Ch. I (7–1–21 Edition)
(ii) Size: Approximately 1 square nau- (vi) Restriction: Disposal shall be lim-
tical mile. ited to dredged material from the vi-
(iii) Depth: Ranges from 640 to 705 cinity of Barataria Bay Waterway.
feet. (4) [Reserved]
(iv) Primary use: Dredged material. (5) Calcasieu, LA Dredged Material
(v) Period of use: Continuing use. Site 1.
(vi) Restriction: Disposal shall be (i) Location: 29°45′39″ N, 93°19′36″ W;
limited to suitable dredged material. 29°42′42″ N, 93°19′06″ W; 29°42′36″ N,
Disposal shall comply with conditions 93°19′48″ W; 29°44′42″ N, 93°20′12″ W;
set forth in the most recent approved 29°44′42″ N, 93°20′24″ W; 29°45′27″ N,
Site Management and Monitoring Plan. 93°20′33″ W (NAD27).
(23) Port Royal, SC; Ocean Dredged (ii) Size: 1.76 square nautical miles.
Material Disposal Site. (iii) Depth: Ranges from 2 to 8 me-
(i) Location (NAD83): 32°05.00′ N., ters.
80°36.47′ W.; 32°05.00′ N., 80°35.30′ W.; (iv) Primary Use: Dredged material.
32°04.00′ N., 80°35.30′ W.; 32°04.00′ N., (v) Period of Use: Continuing use.
80°36.47′ W. (vi) Restriction: Disposal shall be lim-
(ii) Size: Approximately 1.0 square ited to dredged material from the vi-
nautical miles. cinity of the Calcasieu River and Pass
(iii) Depth: Averages 36 feet. Project.
(iv) Primary use: Dredged material. (6) Calcasieu, LA Dredged Material
(v) Period of use: Continuing use. Site 2.
(vi) Restriction: Disposal shall be (i) Location: 29°44′31″ N, 93°20′43″ W;
limited to suitable dredged material 29°39′45″ N, 93°19′56″ W; 29°39′34″ N,
from the greater Port Royal, South 93°20′46″ W; 29°44′25″ N, 93°21′33″ W
Carolina, vicinity. Disposal shall com- (NAD27).
ply with conditions set forth in the (ii) Size: 3.53 square nautical miles.
most recent approved Site Manage- (iii) Depth: Ranges from 2 to 11 me-
ment and Monitoring Plan. ters.
(i) Region IV Final Other Wastes (iv) Primary Use: Dredged material.
Sites. (v) Period of Use: Continuing use.
(1) No final sites. (vi) Restriction: Disposal shall be lim-
(2) [Reserved] ited to dredged material from the vi-
(j) Region VI Final Dredged Material cinity of the Calcasieu River and Pass
Sites. Project.
(1) [Reserved] (7) Calcasieu, LA Dredged Material
(2) Southwest Pass—Mississippi Site 3.
River, LA. (i) Location: 29°37′50″ N, 93°19′37″ W;
(i) Location: 28°54′12″ N., 89°27′15″ W.; 29°37′25″ N, 93°19′33″ W; 29°33′55″ N,
28°54′12″ N., 89°26′00″ W.; 28°51′00″ N., 93°16′23″ W; 29°33′49″ N, 93°16′25″ W;
89°27′15″ W.; 28°51′00″ N., 89°26′00″ W. 29°30′59″ N, 93°13′51″ W; 29°29′10″ N,
(ii) Size: 3.44 square nautical miles. 93°13′49″ W; 29°29′05″ N, 93°14′23″ W;
(iii) Depth: Ranges from 2.7 to 32.2 29°30′49″ N, 93°14′25″ W; 29°37′26″ N,
meters. 93°20′24″ W; 29°37′44″ N, 93°20′27″ W
(iv) Primary use: Dredged material. (NAD27).
(v) Period of Use: Continuing use. (ii) Size: 5.88 square nautical miles.
(vi) Restrictions: Disposal shall be (iii) Depth: Ranges from 11 to 14 me-
limited to dredged material from the ters.
vicinity of the Southwest Pass Chan- (iv) Primary Use: Dredged material.
nel. (v) Period of Use: Continuing use.
(3) Barataria Bay Waterway, LA. (vi) Restriction: Disposal shall be lim-
(i) Location: 29°16′10″ N, 89°56′20″ W; ited to dredged material from the vi-
29°14′19″ N, 89°53′16″ W; 29°14′00″ N, cinity of the Calcasieu River and Pass
89°53′36″ W; 29°16′29″ N, 89°55′59″ W Project.
(NAD27). (8) Sabine-Neches, TX Dredged Mate-
(ii) Size: 1.4 square nautical miles. rial Site 1.
(iii) Depth: Ranges from 8–20 feet. (i) Location: 29°28′03″ N, 93°41′14″ W;
(iv) Primary Use: Dredged material. 29°26′11″ N, 93°41′14″ W; 29°26′11″ N,
(v) Period of Use: Continuing use. 93°44′11″ W (NAD27).
238
(ii) Size: 2.4 square nautical miles. from the greater Houston-Galveston,
(iii) Depth: Ranges from 11–13 meters. Texas vicinity. Disposal shall comply
(iv) Primary Use: Dredged material. with conditions set forth in the most
(v) Period of Use: Continuing use. recent approved Site Management and
(vi) Restriction: Disposal shall be lim- Monitoring Plan.
ited to dredged material from the (13) Freeport Harbor, TX, New Work
Sabine-Neches area. (45 Foot Project).
(9) Sabine-Neches, TX Dredged Mate-
(i) Location: 28°50″51″ N, 95°13′54″ W;
rial Site 2.
(i) Location: 29°30′41″ N, 93°43′49″ W; 28°51′44″ N, 95°14′49″ W; 28°50′15″ N,
29°28′42″ N, 93°41′33″ W; 29°28′42″ N, 95°16′40″ W; 28°49′22″ N, 95°15′45″ W
93°44′49″ W; 29°30′08″ N, 93°46′27″ W (NAD27).
(NAD27). (ii) Size: 2.64 square nautical miles.
(ii) Size: 4.2 square nautical miles. (iii) Depth: 54 to 61 feet.
(iii) Depth: Ranges from 9–13 meters. (iv) Primary Use: Construction (new
(iv) Primary Use: Dredged material. work) dredged material.
(v) Period of Use: Continuing use. (v) Period of Use: Indefinite period of
(vi) Restriction: Disposal shall be lim- time.
ited to dredged material from the (vi) Restrictions: Disposal shall be
Sabine-Neches area. limited to suitable dredged material
(10) Sabine-Neches, TX Dredged Ma-
from the greater Freeport, Texas vicin-
terial Site 3.
(i) Location: 29°34′24″ N, 93°48′13″ W; ity. Disposal shall comply with condi-
29°32′47″ N, 93°46′16″ W; 29°32′06″ N, tions set forth in the most recent ap-
93°46′29″ W; 29°31′42″ N, 93°48′16″ W; proved Site Management and Moni-
29°32′59″ N, 93°49′48″ W (NAD27). toring Plan.
(ii) Size: 4.7 square nautical miles. (14) Freeport Harbor, TX, Mainte-
(iii) Depth: 10 meters. nance (45 Foot Project).
(iv) Primary Use: Dredged material. (i) Location: 28°54′00″ N, 95°15′49″ W;
(v) Period of Use: Continuing use. 28°53′28″ N, 95°15′16″ W; 28°52′00″ N,
(vi) Restriction: Disposal shall be lim- 95°16′59″ W; 28°52′32″ N, 95°17′32″ W
ited to dredged material from the (NAD27).
Sabine-Neches area. (ii) Size: 1.53 square nautical miles.
(11) Sabine-Neches, TX, Dredged Ma-
(iii) Depth: 31 to 38 feet.
terial Site 4.
(i) Location: 29°38′09″ N, 93°49′23″ W; (iv) Primary use: Maintenance dredged
29°35′53″ N, 93°48′18″ W; 29°35′06″ N, material.
93°50′24″ W; 29°36′37″ N, 93°51′09″ W; (v) Period of Use: Indefinite period of
29°37′00″ N, 93°50′06″ W; 29°37′46″ N, time.
93°50′26″ W (NAD27). (vi) Restrictions: Disposal shall be
(ii) Size: 4.2 square nautical miles. limited to suitable dredged material
(iii) Depth: Ranges from 5–9 meters. from the greater Freeport, Texas vicin-
(iv) Primary Use: Dredged material. ity. Disposal shall comply with condi-
(v) Period of Use: Continuing use. tions set forth in the most recent ap-
(vi) Restriction: Disposal shall be lim- proved Site Management and Moni-
ited to dredged material from the toring Plan.
Sabine-Neches area. (15) Matagorda Ship Channel, TX.
(12) Galveston, TX Dredged Material
(i) Location: 28°23′48″ N, 96°18′00″ W;
Site.
28°23′21″ N, 96°18′31″ W; 28°22′43″ N,
(i) Location: 29°18′00″ N, 94°39′30″ W;
29°15′54″ N, 94°37′06″ W; 29°14′24″ N, 96°17′52″ W; 28°23′11″ N, 96°17′22″ W
94°38′42″ W; 29°16′54″ N, 94°41′30″ W (NAD27).
(NAD27). (ii) Size: 0.56 square nautical mile.
(ii) Size: 6.6 square nautical miles. (iii) Depth: Ranges from 25–40 feet.
(iii) Depth: Ranges from 10 to 15.5 me- (iv) Primary Use: Dredged Material.
ters. (v) Period of Use: Indefinite period of
(iv) Primary Use: Dredged material. time.
(v) Period of Use: Continuing use. (vi) Restrictions: Disposal shall be

(vi) Restrictions: Disposal shall be limited to suitable dredged material
limited to suitable dredged material
239
§ 228.15 40 CFR Ch. I (7–1–21 Edition)
from the greater Matagorda, Texas vi- 97°06′30″ W; 26°04′02″ N, 97°07′26″ W

cinity. Disposal shall comply with con- (NAD27).
ditions set forth in the most recent ap- (ii) Size: 0.42 square nautical miles.
proved Site Management and Moni- (iii) Depth: Ranges from 55 to 65 feet.
toring Plan. (iv) Primary Use: Dredged material.
(16) Corpus Christi New Work (v) Period of Use: Indefinite period of
ODMDS, Corpus Christi, Texas. time.
(i) Location: 27°47′42″ N, 97°00′12″ W; (vi) Restrictions: Disposal shall be
27°47′15″ N, 96°59′25″ W; 27°46′17″ N, limited to suitable dredged material
97°01′12″ W; 27°45′49″ N, 97°00′25″ W from the greater Brownsville, Texas vi-
(NAD27). cinity. Disposal shall comply with con-
(ii) Size: 1.4 square miles. ditions set forth in the most recent ap-
(iii) Depth: Ranges from 45–55 feet. proved Site Management and Moni-
(iv) Primary Use: Dredged material. toring Plan.
(v) Period of Use: Continuing use. (20) Brazos Island Harbor (42-Foot
(vi) Restrictions: Disposal shall be Project), TX.
limited to suitable dredged material (i) Location: 26°04′47″ N, 97°05′07″ W;
from the greater Corpus Christi, Texas 26°05′16″ N, 97°05′04″ W; 26°05′10″ N,
vicinity. Disposal shall comply with 97°04′06″ W; 26°04′42″ N, 97°04′09″ W
conditions set forth in the most recent (NAD27).
approved Site Management and Moni- (ii) Size: 0.42 square nautical miles.
toring Plan. (iii) Depth: Ranges from 60–67 feet.
(17) Corpus Christi Ship Channel, TX. (iv) Primary Use: Dredged material.
(i) Location: 27°49′10″ N, 97°01′09″ W; (v) Period of Use: Indefinite period of
27°48′42″ N, 97°00′21″ W; 27°48′06″ N, time.
97°00′48″ W; 27°48′33″ N, 97°01′36″ W (vi) Restrictions: Disposal shall be
(NAD27). limited to suitable dredged material
(ii) Size: 0.63 square nautical mile. from the greater Brownsville, Texas vi-
(iii) Depth: Ranges from 35 to 50 feet. cinity. Disposal shall comply with con-
(iv) Primary use: Dredged material. ditions set forth in the most recent ap-
(v) Period of use: Indefinite period of proved Site Management and Moni-
time. toring Plan.
(vi) Restrictions: Disposal shall be (21) Atchafalaya River and Bayous
limited to suitable dredged material Chene, Boeuf, and Black, LA
from the greater Corpus Christi, Texas (ODMDS—East).
vicinity. Disposal shall comply with (i) Location: 29°20′59.92″ N, 91°23′33.23″
conditions set forth in the most recent W; 29°20′43.94″ N, 91°23′09.73″ W;
approved Site Management and Moni- 29°08′15.46″ N, 91°34′51.02″ W, and
toring Plan. 29°07′59.43″ N, 91°34′27.51″ W
(18) Port Mansfield, TX. (ii) Size: 9.14 square miles.
(i) Location: 26°34′24″ N, 97°15′15″ W; (iii) Depth: Average water depth of 16
26°34′26″ N, 97°14′17″ W; 26°33′57″ N, feet.
97°14′17″ W; 26°33′55″ N, 97°15′15″ W (iv) Primary Use: Dredge material.
(NAD27). (v) Period of Use: Indefinite period of
(ii) Size: 0.42 Square nautical miles. time.
(iii) Depth: Ranges from 35–50 feet. (vi) Restriction: Disposal shall be lim-
(iv) Primary Use: Dredged material. ited to dredged material from the bar
(v) Period of Use: Indefinite period of channel of the Atchafalaya River and
time. Bayous Chene, Boeuf, and Black, Lou-
(vi) Restrictions: Disposal shall be isiana.
limited to suitable dredged material (22) Sabine-Neches, TX Dredged Ma-
from the greater Port Mansfield, Texas terial Site A.
vicinity. Disposal shall comply with (i) Location (NAD83): 29°24′47″ N.,
conditions set forth in the most recent 93°43′29″ W.; 29°24′47″ N., 93°41′08″ W.;
approved Site Management and Moni- 29°22′48″ N., 93°41′09″ W.; 29°22′49″ N.,
toring Plan. 93°43′29″ W.; thence to point of begin-
(19) Brazos Island Harbor, TX. ning.

(i) Location: 26°04′32″ N, 97°07′26″ W; (ii) Size: approximately 5.3 square
26°04′32″ N, 97°06′30″ W; 26°04′02″ N, miles.
240
(iii) Depth: Ranges from 44 to 46 feet. Ocean Dumping Regulations. Dredged

(iv) Primary Use: Dredged material. material that does not meet the cri-
(v) Period of Use: Continuing use. teria set forth in 40 CFR part 227 shall
(vi) Restrictions: Disposal shall be not be placed at the site. Disposal oper-
limited to dredged material from the ations shall be conducted in accordance
Sabine-Neches 13.2 mile Extension with requirements specified in a Site
Channel that complies with EPA’s Management and Monitoring Plan de-
Ocean Dumping Regulations. Dredged veloped by EPA and USACE, to be re-
material that does not meet the cri- viewed periodically, at least every 10
teria set forth in 40 CFR part 227 shall years.
not be placed at the site. Disposal oper- (25) Sabine-Neches, TX Dredged Ma-
ations shall be conducted in accordance terial Site D.
with requirements specified in a Site (i) Location (NAD83): 29°16′22″ N.,
Management and Monitoring Plan de- 93°43′29″ W.; 29°16′22″ N., 93°41′10″ W.;
veloped by EPA and USACE, to be re- 29°14′24″ N., 93°41′10″ W.; 29°14′24″ N.,
viewed periodically, at least every 10 93°43′29″ W.; thence to point of begin-
years. ning.
(23) Sabine-Neches, TX Dredged Ma- (ii) Size: approximately 5.3 square
terial Site B. miles.
(i) Location (NAD83): 29°21′59″ N., (iii) Depth: Ranges from 44 to 46 feet.
93°43′29″ W.; 29°21′59″ N., 93°41′08″ W.; (iv) Primary Use: Dredged material.
29°20′00″ N., 93°41′09″ W.; 29°20′00″ N., (v) Period of Use: Continuing use.
93°43′29″ W.; thence to point of begin- (vi) Restrictions: Disposal shall be
ning. limited to dredged material from the
(ii) Size: approximately 5.3 square Sabine-Neches 13.2 mile Extension
miles. Channel that complies with EPA’s
(iii) Depth: Ranges from 44 to 46 feet. Ocean Dumping Regulations. Dredged
(iv) Primary Use: Dredged material. material that does not meet the cri-
(v) Period of Use: Continuing use. teria set forth in 40 CFR part 227 shall
(vi) Restrictions: Disposal shall be not be placed at the site. Disposal oper-
limited to dredged material from the ations shall be conducted in accordance
Sabine-Neches 13.2 mile Extension with requirements specified in a Site
Channel that complies with EPA’s Management and Monitoring Plan de-
Ocean Dumping Regulations. Dredged veloped by EPA and USACE, to be re-
material that does not meet the cri- viewed periodically, at least every 10
teria set forth in 40 CFR part 227 shall years.
not be placed at the site. Disposal oper- (26) Atchafalaya River and Bayous
ations shall be conducted in accordance Chene, Boeuf, and Black, LA (ODMDS-
with requirements specified in a Site West)
Management and Monitoring Plan de- (i) Location (NAD83): 29°22′06″ N,
veloped by EPA and USACE, to be re- 91°27′38″ W; 29°20′30″ N, 91°25′13″ W;
viewed periodically, at least every 10 29°09′16″ N, 91°35′12″ W; 29°10′52″ N,
years. 91°37′33″ W; thence to point of begin-
(24) Sabine-Neches, TX Dredged Ma- ning.
terial Site C. (ii) Size: 48 square miles.
(i) Location (NAD83): 29°19′11″ N., (iii) Depth: Ranges from 4 to 23 feet.
93°43′29″ W.; 29°19′11″ N, 93°41′09″ W.; (iv) Primary Use: Dredged material.
29°17′12″ N., 93°41′09″ W.; 29°17′12″ N., (v) Period of Use: Continuing use.
93°43′29″ W.; thence to point of begin- (vi) Restrictions: Disposal shall be
ning. limited to dredged material from the
(ii) Size: approximately 5.3 square Atchafalaya River Bar channel that
miles. complies with EPA’s Ocean Dumping
(iii) Depth: Ranges from 44 to 46 feet. Regulations. Dredged material that
(iv) Primary Use: Dredged material. does not meet the criteria set forth in
(v) Period of Use: Continuing use. 40 CFR part 227 shall not be placed at
(vi) Restrictions: Disposal shall be the site. Disposal operations shall be
limited to dredged material from the conducted in accordance with require-

Sabine-Neches 13.2 mile Extension ments specified in a Site Management
Channel that complies with EPA’s and Monitoring Plan developed by EPA
241
§ 228.15 40 CFR Ch. I (7–1–21 Edition)
and USACE, to be reviewed periodi- (iii) Depth: 8,200 to 9,840 feet (2,500 to
cally, at least every 10 years. 3,000 meters).
(k) Region VI Final Other Wastes (iv) Use Restricted to Disposal of:
Sites. Dredged materials.
(1) No final sites. (v) Period of Use: Continuing use over
(2) [Reserved] 50 years from date of site designation,
(l) Region IX Final Dredged Material subject to restrictions and provisions
Sites. set forth below.
(1) San Diego, CA (LA–5). (vi) Restrictions/provisions: The re-
(i) Location: Center coordinates of the mainder of this § 228.15(l)(3) (herein-
site are: 32°36.83′ North Latitude and after referred to as ‘‘this section’’) con-
117°20.67′ West Latitude (North Amer- stitutes the required Site Management
ican Datum from 1927), with a radius of and Monitoring Plan (SMMP) for the
3,000 feet (910 meters). SF-DODS. This SMMP shall be supple-
(ii) Size: 0.77 square nautical miles. mented by a Site Management and
(iii) Depth: 460 to 660 feet (145 to 200 Monitoring Plan Implementation Man-
meters). ual (SMMP Implementation Manual)
(iv) Primary Use: Ocean dredged mate- containing more detailed operational
rial disposal. guidance. The SMMP Implementation
(v) Period of Use: Continuing use. Manual may be periodically revised as
(vi) Restrictions: Disposal shall be necessary; proposed revisions to the
limited to dredged materials that com- SMMP Implementation Manual shall
ply with EPA’s Ocean Dumping Regu- be made following opportunity for pub-
lations and Corps Permitting Regula- lic review and comment. Adherence to
tions. the provisions of the most current
(2) Los Angeles/Long Beach, CA (LA– SMMP Implementation Manual, in-
2). cluding mandatory permit conditions,
(i) Location: 33°37.10′ North Latitude site monitoring activities, and any
by 118°17.40′ West Longitude (North other condition(s) EPA or the Corps
American Datum from 1983), with a ra- have required as part of the project au-
dius of 3,000 feet (910 meters). thorization or permit, is a requirement
(ii) Size: 0.77 square nautical miles. for use of the SF-DODS. SF-DODS use
(iii) Depth: 380 to 1060 feet (110 to 320 shall be subject to the following re-
meters). strictions and provisions:
(iv) Primary use: Ocean dredged mate- (vii) Type and capacity of disposed ma-
rial disposal. terials. Site disposal capacity is 4.8 mil-
(v) Period of use: Continuing use, sub- lion cubic yards of suitable dredged
ject to submission of a revised Consist- material per year for the remaining pe-
ency Determination to the California riod of site designation. This limit is
Coastal Commission after 5 years of based on considerations in the regional
site management and monitoring. Long Term Management Strategy for
(vi) Restrictions: Disposal shall be the placement of dredged material
limited to dredged sediments that com- within the San Francisco Bay region,
ply with EPA’s Ocean Dumping Regu- and on monitoring of site use since the
lations. SF-DODS was designated in 1994.
(3) San Francisco Deepwater Ocean (viii) Permit/project conditions. Para-
Site (SF-DODS) Ocean Dredged Mate- graph (l)(3)(viii)(A) of this section sets
rial Disposal Site—Region IX. forth requirements for inclusion in per-
(i) Location: Center coordinates of the mits to use the SF-DODS, and in all
oval-shaped site are: 37°39.0′ North lati- Army Corps of Engineers federal
tude by 123°29.0′ West longitude (North project authorizations. Paragraph
American Datum from 1983), with (l)(3)(viii)(B) of this section describes
length (north-south axis) and width additional project-specific conditions
(west-east axis) dimensions of approxi- that will be required of disposal per-
mately 4 nautical miles (7.5 kilo- mits and operations as appropriate.
meters) and 2.5 nautical miles (4.5 kilo- Paragraph (l)(3)(viii)(C) of this section
meters), respectively. describes how alternative permit con-

(ii) Size: 7.85 square nautical miles (27 ditions may be authorized by EPA and
square kilometers). the Corps of Engineers. All references
242
to ‘‘permittees’’ shall be deemed to in- Closer approaches should occur only in

clude the Army Corps of Engineers situations where the designated vessel
when implementing a federal dredging traffic lane enters the area encom-
project. passed by the 3-mile limit, and where
(A) Mandatory conditions. All permits safety may be compromised by staying
or federal project authorizations au- outside of the 3-mile limit. In no case
thorizing use of the SF-DODS shall in- may disposal vessels leave the des-
clude the following conditions, unless ignated vessel traffic lane.
approval for an alternative permit con- (5) When dredged material is dis-
dition is sought and granted pursuant charged within the SF-DODS, no por-
to paragraph (l)(3)(viii)(C) of this section of the vessel from which the mate-
tion: rials are to be released (e.g., hopper
(1) Transportation of dredged mate- dredge or towed barge) can be further
rial to the SF-DODS shall only be al- than 1,900 feet (600 meters) from the
lowed when weather and sea state con- center of the target area at 37°39′ N,
ditions will not interfere with safe 123°29′ W.
transportation and will not create risk (6) No more than one disposal vessel
of spillage, leak or other loss of may be present within the permissible
dredged material in transit to the SF- dumping target area referred to in
DODS. No disposal trips shall be initi- paragraph (l)(3)(viii)(A)(5) of this sec-
ated when the National Weather Serv- tion at any time.
ice has issued a gale warning for local
(7) Disposal vessels shall use an ap-
waters during the time period nec-
propriate navigation system capable of
essary to complete dumping oper-
indicating the position of the vessel
ations, or when wave heights are 16
carrying dredged material (for exam-
feet or greater. The permittee must
ple, a hopper dredged vessel or towed
consult the most current version of the
barge) with a minimum accuracy and
SMMP Implementation Manual for ad-
precision of 100 feet during all disposal
ditional restrictions and/or clarifica-
operations. The system must also indi-
tions regarding other sea state param-
cate the opening and closing of the
eters, including, but not limited to
wave period. doors of the vessel carrying the
(2) All vessels used for dredged mate- dredged material. If the positioning
rial transportation and disposal must system fails, all disposal operations
be loaded to no more than 80 percent must cease until the navigational capa-
by volume of the vessel. Before any dis- bilities are restored. The back-up navi-
posal vessel departs for the SF-DODS, gation system, with all the capabilities
an independent quality control inspec- listed in this condition, must be in
tor must certify in writing that the place on the vessel carrying the
vessel meets the conditions and re- dredged material.
quirements of a certification checklist (8) The permittee shall maintain
that contains all of the substantive ele- daily records of the amount of material
ments found in the example contained dredged and loaded into barges for dis-
in the most current SMMP Implemen- posal, the times that disposal vessel de-
tation Manual. For the purposes of part for, arrive at and return from the
paragraph (l)(3)(viii) of this section, SF-DODS, the exact locations and
‘‘independent’’ means not an employee times of disposal, and the volumes of
of the permittee or dredging con- material disposed at the SF-DODS dur-
tractor; however, the Corps of Engi- ing each vessel trip. The permittee
neers may provide inspectors for Corps shall further record wind and sea state
of Engineers dredged material disposal observations at intervals to be estab-
projects. lished in the permit.
(3) Dredged material shall not be (9) For each disposal vessel trip, the
leaked or spilled from disposal vessels permittee shall maintain a computer
during transit to the SF-DODS. printout from a Global Positioning
(4) Disposal vessels in transit to and System or other acceptable navigation
from the SF-DODS should remain at system showing transit routes and dis-
least three nautical miles from the posal coordinates, including the time
Farallon Islands whenever possible. and position of the disposal vessel
243
§ 228.15 40 CFR Ch. I (7–1–21 Edition)
when dumping was commenced and (13) At the completion of short-term

completed. dredging projects, at least annually for
(10) An independent quality control ongoing projects, and at any other
inspector (as defined in paragraph time or interval requested by the Dis-
(l)(3)(viii)(A)(2)) of this section shall trict Engineer or Regional Adminis-
observe all dredging and disposal oper- trator, permittees shall prepare and
ations. The inspector shall verify the submit to the District Engineer and
information required in paragraphs Regional Administrator a report that
(l)(3)(viii)(A)(8) and (9) of this section. includes complete records of all dredg-
The inspector shall promptly inform ing, transport and disposal activities,
permittees of any inaccuracies or dis- such as navigation logs, disposal co-
crepancies concerning this information ordinates, scow certification check-
and shall prepare summary reports, lists, and other information required
which summarize all such inaccuracies by permit conditions. Electronic data
and discrepancies, from time to time as submittals may be required to conform
shall be specified in permits. Such to a format specified by the agencies.
summary reports shall be sent by the Permittees shall include a report indi-
permittee to the District Engineer and cating whether any dredged material
the Regional Administrator within a was dredged outside the areas author-
time interval that shall be specified in ized for dredging or was dredged deeper
the permit. than authorized for dredging by their
permits.
(11) The permittee shall report any
(B) Project-specific conditions. Permits
anticipated or actual permit violations
or federal project authorizations au-
to the District Engineer and the Re-
thorizing use of the SF-DODS may in-
gional Administrator within 24 hours
clude the following conditions, if EPA
of discovering such violation. If any determines these conditions are nec-
anticipated or actual permit violations essary to facilitate safe use of the SF-
occur within the Gulf of the Farallones DODS, the prevention of potential
or the Monterey Bay National Marine harm to the environment or accurate
Sanctuaries, the permittee must also monitoring of site use:
report any such violation to the respec- (1) Permittees may be required to
tive Sanctuary Manager within 24 limit the speed of disposal vessels in
hours. In addition, the permittee shall transit to the SF-DODS to a rate that
prepare and submit reports, certified is safe under the circumstances and
accurate by the independent quality will prevent the spillage of dredged ma-
control inspector, on a frequency that terials.
shall be specified in permits, to the (2) Permittees may be required to use
District Engineer and the Regional Ad- automated data logging systems for re-
ministrator setting forth the informa- cording navigation and disposal coordi-
tion required by Mandatory Conditions nates and/or load levels throughout dis-
in paragraphs (l)(3)(viii)(A)(8) and (9) of posal trips when such systems are fea-
this section. sible and represent an improvement
(12) Permittees, and the Corps in its over manual recording methodologies.
Civil Works projects, must make ar- (3) Any other conditions that EPA or
rangements for independent observers the Corps of Engineers determine to be
to be present on disposal vessels for the necessary or appropriate to facilitate
purpose of conducting shipboard sur- compliance with the requirements of
veys of seabirds and marine mammals. the MPRSA and this section may be in-
Observers shall employ standardized cluded in site use permits.
monitoring protocols, as referenced in (C) Alternative permit/project condi-
the most current SMMP Implementa- tions. Alternatives to the permit condi-
tion Manual. At a minimum, permit- tions specified in paragraph (l)(3)(viii)
tees shall ensure that independent ob- of this section in a permit or federal
servers are present on at least one dis- project authorization may be author-
posal trip during each calendar month ized if the permittee demonstrates to
that disposal occurs, AND on average the District Engineer and the Regional
at least once every 25 vessel trips to Administrator that the alternative
the SF-DODS. conditions are sufficient to accomplish
244
the specific intended purpose of the tivity. Samples from outside of the
permit condition in issue and further footprint and outside of the disposal
demonstrates that the waiver will not site boundaries shall be archived and
increase the risk of harm to the envi- analyzed only when the criteria requir-
ronment, the health or safety of pering Tier 2 as specified in paragraph
sons, nor will impede monitoring of (l)(3)(x) of this section are met. A suffi-
compliance with the MPRSA, regula- cient number of samples shall be col-
tions promulgated under the MPRSA, lected so that the potential for adverse
or any permit issued under the impacts due to elevated chemistry can
MPRSA. be assessed with an appropriate time-
(ix) Site monitoring. Data shall be col- series or ordinal technique.
lected in accordance with a three- (3) Biological monitoring. Tier 1 Bio-
tiered site monitoring program which logical Monitoring shall have two com-
consists of three interdependent types ponents: Monitoring of pelagic commu-
of monitoring for each tier: Physical, nities and monitoring of benthic com-
chemical and biological. In addition, munities.
periodic confirmatory monitoring con- (i) Pelagic communities. Tier 1 Biologi-
cerning potential site contamination cal Monitoring shall include regional
shall be performed. Specific guidance surveys of seabirds, marine mammals
for site monitoring tasks required by and mid-water column fish populations
this paragraph shall be described in a appropriate for evaluating how these
Site Management and Monitoring Im- populations might be affected by dis-
plementation Manual (SMMP Imple- posal site use. A combination of annual
mentation Manual) developed by EPA. regional and periodic (random) ship-
The SMMP Implementation Manual board surveys of seabirds and marine
shall be reviewed periodically and any mammals will be used. The regional
necessary revisions to the Manual will survey designs for each category of
be issued for public review under an biota shall be similar to that used for
EPA Public Notice. the regional characterization studies
(A) Tier 1 monitoring activities. Tier 1 referenced in the Final Environmental
monitoring activities shall consist of Impact Statement for Designation of a
the following: Deep Water Ocean Dredged Material
(1) Physical monitoring. Tier 1 Phys- Disposal Site off San Francisco, Cali-
ical Monitoring shall consist of a phys- fornia (August 1993) with appropriate
ical survey to map the area on the realignments to accommodate
seafloor within and in the vicinity of transects within and in the vicinity of
the disposal site where dredged mate- the SF-DODS. The periodic shipboard
rial has been deposited (the footprint). surveys shall be performed from vessels
Such a survey shall use appropriate involved in dredged material disposal
technology (for example, sediment pro- operations at the SF-DODS as specified
file photography) to determine the in permit conditions imposed pursuant
areal extent and thickness of the dis- to paragraph (l)(3)(viii)(A)(12) of this
posed dredged material, and to deter- section. The minimum number of sur-
mine if any dredged material has de- veys must be sufficient to characterize
posited outside of the disposal site the disposal operations for each
boundary. project, and, as practicable, provide
(2) Chemical monitoring. Tier 1 Chem- seasonal data for an assessment of the
ical Monitoring shall consist of col- potential for adverse impacts for the
lecting, processing, and preserving one-year period. An appropriate time-
boxcore samples of sediments so that series (ordinal), and community anal-
such sediments could be subjected to ysis shall be performed using data col-
sediment chemistry analysis in the ap- lected during the current year and pre-
propriate tier. Samples shall be col- vious years.
lected within the dredged material (ii) Benthic communities. Tier 1 Bio-
footprint, outside of the dredged mate- logical Monitoring shall include collec-
rial footprint, and outside of the dis- tion and preservation of boxcore sam-
posal site boundaries. Samples within ples of benthic communities so that

the footprint shall be subjected to such samples could be analyzed as a
chemical analysis in annual Tier 1 ac- Tier 2 activity.
245
§ 228.15 40 CFR Ch. I (7–1–21 Edition)
(4) Annual reporting. The results of the dispersion of dredged material in

the annual Tier 1 studies shall be com- the water column and the deposition of
piled in an annual report which will be dredged material on the seafloor in the
available for public review. vicinity of the SF-DODS. Such phys-
(B) Tier 2 monitoring activities. Tier 2 ical monitoring may include addi-
monitoring activities shall consist of tional, intensified studies involving the
the following: collection of additional current meter
(1) Physical monitoring. Tier 2 Phys- data, deployment of sediment traps,
ical Monitoring shall consist of oceano- and deployment of surface and sub-
graphic studies conducted to validate surface drifters. Such studies may in-
and/or improve the models used to preclude additional sampling stations,
dict the dispersion in the water column greater frequency of sampling, more
and deposition of dredged material on advanced sampling methodologies or
the seafloor at the SF-DODS. The ap- equipment, or other additional in-
propriate physical oceanographic stud- creased study measures compared to
ies may include: The collection of addi- similar studies conducted in Tier 1 or 2.
tional current meter data, deployment (2) Chemical monitoring. Tier 3 Chem-
of sediment traps, and deployment of ical Monitoring shall consist of anal-
surface and subsurface drifters. ysis of tissues of appropriate field-col-
(2) Chemical monitoring. Tier 2 Chem- lected benthic and/or epifaunal orga-
ical Monitoring shall consist of per- nisms to determine bioaccumulation of
forming sediment chemistry analysis contaminants that may be associated
on samples collected and preserved in
with dredged materials deposited at
Tier 1 from outside of the footprint and
the SF-DODS. Sampling and analysis
outside of the disposal site boundaries.
shall be designed and implemented to
(3) Biological monitoring. Tier 2 Bio-
determine whether the SF-DODS is a
logical Monitoring shall involve moni-
source of adverse bioaccumulation in
toring of pelagic communities and
the tissues of benthic species collected
monitoring of benthic communities.
at or outside the SF-DODS, compared
(i) Pelagic communities. Tier 2 Biologi-
to adjacent unimpacted areas, which
cal Monitoring for pelagic commu-
may endanger the marine environment.
nities shall include supplemental sur-
veys of similar type to those in Tier 1, Appropriate sampling methodologies
or other surveys as appropriate. for these tests will be determined and
(ii) Benthic communities. Tier 2 Bio- the appropriate analyses will involve
logical Monitoring for benthic commu- the assessment of benthic body burdens
nities shall include a comparison of the of contaminants and correlation with
benthic community within the dredged comparison of the benthic commu-
material footprint to benthic communities inside and outside of the sedi-
nities in adjacent areas outside of the ment footprint.
dredged material footprint. An appro- (3) Biological monitoring. Tier 3 bio-
priate time-series (ordinal) and com- logical monitoring shall have two com-
munity analysis shall be performed ponents: monitoring of pelagic commu-
using data collected during the current nities and monitoring of benthic com-
year and previous years to determine munities.
whether there are adverse changes in (i) Pelagic communities. Tier 3 Biologi-
the benthic populations outside of the cal Monitoring shall include advanced
disposal site which may endanger the studies of seabirds, marine mammals
marine environment. and mid-water column fish to evaluate
(4) Annual reporting. The results of how these populations might be af-
any required Tier 2 studies shall be fected by disposal site use. Such stud-
compiled in an annual report which ies may include additional sampling
will be available for public review. stations, greater frequency of sam-
(C) Tier 3 monitoring activities. Tier 3 pling, more advanced sampling meth-
monitoring activities shall consist of odologies or equipment, or other addi-
the following: tional increased study measures com-
(1) Physical monitoring. Tier 3 phys- pared to similar studies conducted in

ical monitoring shall consist of ad- Tier 1 or 2. Studies may include evalua-
vanced oceanographic studies to study tion of sub-lethal changes in the health
246
of pelagic organisms, such as the devel- scribed in paragraphs (l)(3)(ix) (A)

opment of lesions, tumors, develop- through (C) of this section shall be im-
mental abnormality, decreased fecun- plemented on an annual basis, through
dity or other adverse sub-lethal effect. December 31, 1998, independent of the
(ii) Benthic communities. Tier 3 Bio- actual volumes disposed at the site.
logical Monitoring shall include ad- Thereafter, the Regional Adminis-
vanced studies of benthic communities trator may establish a minimum an-
to evaluate how these populations nual disposal volume (not to exceed 10
might be affected by disposal site use. percent of the designated site capacity
Such studies may include additional at any time) below which this moni-
sampling stations, greater frequency of toring program need not be fully im-
sampling, more advanced sampling plemented. The Regional Adminis-
methodologies or equipment, or other trator shall promptly review moni-
additional increased study measures toring reports for the SF-DODS along
compared to similar studies conducted with any other information available
in Tier 2. Studies may include evalua- to the Regional Administrator con-
tion of sub-lethal changes in the health cerning site monitoring activities. If
of benthic organisms, such as the de- the information gathered from moni-
velopment of lesions, tumors, develop- toring at a given monitoring tier is not
mental abnormality, decreased fecun- sufficient for the Regional Adminis-
dity or other adverse sub-lethal effect. trator to base reasonable conclusions
(4) Reporting. The results of any reas to whether disposal at the SF-DODS
quired Tier 3 studies shall be compiled might be endangering the marine eco-
in a report which will be available for system, then the Regional Adminis-
public review. trator shall require intensified moni-
(D) Periodic confirmatory monitoring. toring at a higher tier. If monitoring at
At least once every three years, the a given tier establishes that disposal at
following confirmatory monitoring ac- the SF-DODS is endangering the ma-
tivities will be conducted and results rine ecosystem, then the Regional Ad-
compiled in a report which will be ministrator shall require modification,
available for public review: Samples of suspension or termination of site use.
sediments taken from the dredged ma- (A) Selection of site monitoring tiers—
terial footprint shall be subjected to (1) Physical monitoring. Physical moni-
bioassay testing using one or more ap- toring shall remain limited to Tier 1
propriate sensitive marine species con- monitoring when Tier 1 monitoring es-
sistent with applicable ocean disposal tablishes that no significant amount of
testing guidance (‘‘Green Book’’ or re- dredged material has been deposited or
lated Regional Implementation Agree- transported outside of the site bound-
ments), as determined by the Regional aries. Tier 2 monitoring shall be em-
Administrator, to confirm whether ployed when Tier 1 monitoring is insuf-
contaminated sediments are being de- ficient to conclude that a significant
posited at the SF-DODS despite exten- amount of dredged material as defined
sive pre-disposal testing. In addition, in paragraph (l)(3)(x)(A)(4) of this sec-
near-surface arrays of appropriate fil- tion has not been deposited or trans-
ter-feeding organisms (such as mussels) ported outside of the site boundaries.
shall be deployed in at least three loca- (2) Chemical monitoring. (i) Chemical
tions in and around the disposal site monitoring shall remain limited to
for at least one month during active Tier 1 Chemical Monitoring when the
site use, to confirm whether substan- results of Physical Monitoring indicate
tial bioaccumulation of contaminants that a significant amount of dredged
may be associated with exposure to material as defined in paragraph
suspended sediment plumes from mul- (l)(3)(x)(A)(4) of this section has not
tiple disposal events. One array must been deposited or transported off-site,
be deployed outside the influence of and Tier 1 Chemical Monitoring estab-
any expected plumes to serve as a base- lishes that dredged sediments deposited
line reference. at the disposal site do not contain lev-
(x) Site management actions. Once dis- els of chemical contaminants that are
posal operations at the site begin, the significantly elevated above the range
three-tier monitoring program de- of chemical contaminant levels in
247
§ 228.15 40 CFR Ch. I (7–1–21 Edition)
dredged sediments that the Regional itored pelagic communities, then Tier 3
Administrator and the District Engi- monitoring of pelagic communities
neer found to be suitable for disposal at shall be employed.
the SF-DODS pursuant to 40 CFR part (ii) Benthic communities. Biological
227. monitoring for benthic communities
(ii) Tier 2 monitoring shall be em- shall remain limited to Tier 1 moni-
ployed when the results of Physical toring when physical monitoring estab-
Monitoring indicate that a significant lishes that a significant amount of
amount of dredged material as defined dredged material has not been depos-
in paragraph (l)(3)(x)(A)(4) of this sec- ited outside of the site boundaries. If
tion has been deposited off-site, and physical monitoring indicates that a
Tier 1 Chemical Monitoring is insuffi- significant amount of dredged material
cient to establish that dredged sedi-
has been deposited or transported out-
ments deposited at the disposal site do
side of the site boundaries, then Tier 2
not contain levels of chemical con-
analysis of benthic communities shall
taminants that are significantly ele-
be performed. If Chemical Monitoring
vated above the range of chemical con-
taminant levels in dredged sediments establishes that there is significant
that the Regional Administrator and bioaccumulation of contaminants in
the District Engineer found to be suit- organisms sampled from within or out-
able for disposal at the SF-DODS pur- side the dredged material footprint,
suant to 40 CFR part 227. then Tier 3 Biological Monitoring of
The Regional Administrator may em- the disposal site shall be employed.
ploy Tier 2 monitoring when available Tier 3 Biological Monitoring may re-
evidence indicates that a significant place Tier 3 Chemical Monitoring if ob-
amount of dredged material as defined served biological effects are established
in paragraph (l)(3)(x)(A)(4) of this sec- as surrogate indicators for bioaccumu-
tion has been deposited near the SF- lation of chemical contaminants in
DODS site boundary. sampled organisms.
(iii) Tier 3 monitoring shall be em- (4) Definition of significant dredged ma-
ployed within and outside the dredged terial accumulation. For purposes of this
material footprint when Tier 2 Chem- paragraph (l)(3)(x)(A) of this section,
ical Monitoring is insufficient to estab- dredged material accumulation on the
lish that dredged sediments deposited ocean bottom to a thickness of five
at the disposal site do not contain lev- centimeters shall be considered to be a
els of chemical contaminants that are significant amount of dredged mate-
significantly elevated above the range rial. The Regional Administrator may
of chemical contaminant levels in determine that a lesser amount of ac-
dredged sediments that the Regional cumulation is significant if available
Administrator and the District Engi- evidence indicates that a lesser amount
neer found to be suitable for disposal at of off-site accumulation could endan-
the SF-DODS pursuant to 40 CFR part
ger marine resources.
227.
(B) Modification, suspension or termi-
(3) Biological monitoring. (i) Pelagic
communities. Biological monitoring for nation of site use. (1) If the results of
pelagic communities shall remain lim- site monitoring or other information
ited to Tier 1 monitoring when Tier 1 indicate that any of the following are
monitoring establishes that disposal at occurring as a result of disposal at the
the SF-DODS has not endangered the SF-DODS, then the Regional Adminis-
monitored pelagic communities. When trator shall modify, suspend, or termi-
Tier 1 monitoring is insufficient to nate site use overall, or for individual
make reasonable conclusions whether projects as appropriate:
disposal at the site has endangered the (i) Exceedance of Federal marine
monitored pelagic communities, then water quality criteria within the SF-
Tier 2 monitoring of pelagic commu- DODS following initial mixing as de-
nities shall be employed. When Tier 2 fined in 40 CFR 227.29(a) or beyond the
monitoring is insufficient to make rea- site boundary at any time;

sonable conclusions whether disposal (ii) Placement or movement of sig-
at the site has endangered the mon- nificant quantities of disposed material
248
outside of site boundaries near or to- ical, bioassay toxicity, or bioaccumula-

ward significant biological resource tion characteristics.
areas or marine sanctuaries; (3) The Regional Administrator shall
(iii) Endangerment of the marine en- suspend site use when site use suspen-
vironment related to potentially sig- sion is both necessary and sufficient to
nificant adverse changes in the struc- eliminate any adverse environmental
ture of the benthic community outside effect or endangerment to human
the disposal site boundary; health, welfare, or livelihood or to the
(iv) Endangerment to the health, wel- environment referred to in paragraph
fare, or livelihood of persons or to the (l)(3)(x)(B)(1) of this section. Notwith-
environment related to potentially sig- standing the provisions of any permit
nificant adverse bioaccumulation in or- or federal project authorization au-
ganisms collected from the disposal thorizing site use, the Regional Admin-
site or areas adjacent to the site istrator shall order, following oppor-
boundary compared to the reference tunity for public comment, site use
site; suspension until an appropriate man-
(v) Endangerment to the health, wel- agement action is identified or for a
fare, or livelihood of persons related to time period that will eliminate the ad-
potentially significant adverse impacts verse environmental effect or
upon commercial or recreational fish- endangerment to human health, wel-
eries resources near the site; or fare, or livelihood or to the environ-
(vi) Endangerment to the health, wel- ment.
fare, or livelihood of persons or to the (4) Notwithstanding the provisions of
environment related to any other po- any permit or federal project author-
tentially significant adverse environ- ization authorizing site use, the Re-
mental impacts. gional Administrator shall order, fol-
(2) The Regional Administrator shall lowing opportunity for public com-
modify site use, rather than suspend or ment, site use permanently terminated
terminate site use, when site use modi- if this is the only means for elimi-
fication will be sufficient to eliminate nating the adverse environmental im-
the adverse environmental impacts re- pacts referred to in paragraphs
ferred to in paragraphs (l)(3)(x)(B)(1) (i) (l)(3)(x)(B)(1) (i) or (ii) of this section or
or (ii) of this section or the the endangerment to human health,
endangerment to human health, wel- welfare or livelihood to the environ-
fare or livelihood to the environment ment referred to in paragraphs
referred to in paragraphs (l)(3)(x)(B)(1) (l)(3)(x)(B)(1) (iii) through (vi) of this
(iii) through (vi) of this section. Not- section.
withstanding the provisions of any per- (4) Channel Bar Site, San Francisco,
mit or federal project authorization au- CA (SF–8).
thorizing site use, the Regional Admin- (i) Location: 37°44′55″ N, 122°37′18″ W;
istrator shall order, following oppor- 37°45′45″ N, 122°34′24″ W; 37°44′24″ N,
tunity for public comment, any of the 122°37′06″ W; 37°45′15″ N, 122°34′12″ W
following modifications to site use that (NAD27).
he or she deems necessary to eliminate (ii) Size: 4,572 × 914 meters.
the adverse environmental effect or (iii) Depth: Ranges from 11 to 14.3 me-
endangerment to human health, wel- ters.
fare, or livelihood or to the environ- (iv) Primary Use: Dredged material.
ment: (v) Period of Use: Continuing use.
(i) Change or additional restrictions (vi) Restriction: Disposal shall be lim-
upon the permissible times, rates and ited to material from required dredging
total volume of disposal of dredged ma- operations at the entrance of the San
terial at the SF-DODS; Francisco main ship channel which is
(ii) Change or additional restrictions composed primarily of sand having
upon the method of disposal or trans- grain sizes compatible with naturally
portation of dredged materials for dis- occurring sediments at the disposal
posal; or site and containing approximately 5
(iii) Change or additional limitations percent of particles having grain sizes

upon the type or quality of dredged finer than that normally attributed to
materials according to chemical, phys- very fine sand (.075 millimeters). Other
249
§ 228.15 40 CFR Ch. I (7–1–21 Edition)
dredged materials meeting the require- (iii) Depth: Ranges from 1,460 to 1,610
ments of 40 CFR 227.13 but having meters.
smaller grain sizes may be dumped at (iv) Primary Use: Dredged material.
this site only upon completion of an (v) Period of Use: Continuing use.
appropriate case-by-case evaluation of (vi) Restriction: Disposal shall be lim-
the impact of such material on the site ited to dredged material.
which demonstrates that such impact (10) Humboldt Open Ocean Disposal
will be acceptable. Site (HOODS) Ocean Dredged Material
(5) Hilo, HI. Disposal Site—Region IX.
(i) Location: (center point): Lati-
(i) Location: The coordinates of the
tude—19°48′30″ N.; Longitude—154°58′30″
four corners of the square site are:
W.
40°50.300′ North latitude (N) by
(ii) Size: Circular with a radius of 920
meters. 124°018.017′ West longitude (W);
(iii) Depth: Ranges from 330 to 340 40°49.267′ N by 124°15.767′ W; 40°47.550′ N
meters. by 124°17.083′ W; and 40°48.567′ N by
(iv) Primary Use: Dredged material. 124°19.300′ W (North American Datum
(v) Period of Use: Continuing use. from 1983). The expanded disposal site
(vi) Restriction: Disposal shall be lim- boundary defined by these coordinates
ited to dredged material. replaces and supersedes the previous
(6) Kahului, HI. boundary.
(i) Location: (center point): Lati- (ii) Size: 4 square nautical miles (13.4
tude—21°04′42″ N.; Longitude—156°29′00″ square kilometers).
W. (iii) Depth: Water depths within the
(ii) Size: Circular with a radius of 920 area range between approximately 150
meters. to 210 feet (45 to 64 meters).
(iii) Depth: Ranges from 345 to 365 (iv) Use Restricted to Disposal of: Dis-
meters. posal shall be limited to dredged mate-
(iv) Primary Use: Dredged material. rial determined to be suitable for ocean
(v) Period of Use: Continuing use. disposal according to 40 CFR 220–228.
(vi) Restriction: Disposal shall be lim- (v) Period of Use: Continuing use for
ited to dredged material. 50 years from the effective date of this
(7) South Oahu, HI. updated site designation, subject to re-
(i) Location: (center point): Lati- strictions and provisions set forth in
tude—21°15′10″ N.; Longitude—157°56′50″ paragraph (l)(10)(vi) of this section.
W. (vi) Restrictions/Provisions: Disposal at
(ii) Size: 2 kilometers wide and 2.6 kil- HOODS shall be in accordance with the
ometers long. permit or Federal project approval that
(iii) Depth: Ranges from 400 to 475 incorporates all conditions set forth in
meters. the most recent Site Management and
(iv) Primary Use: Dredged material. Monitoring Plan (SMMP) for the
HOODS published by EPA in consulta-
tion with USACE, and as may be modi-
ited to dredged material.
fied in EPA concurrences for individual
(8) Nawiliwili, HI.
projects disposing at HOODS. The
(i) Location: (centerpoint): Latitude—
SMMP may be periodically revised as
21°55′00″ N. Longitude—159°17′00″ W.
(ii) Size: Circular with a radius of 920 necessary; proposed substantive revi-
meters. sions to the SMMP shall be made fol-
(iii) Depth: Ranges from 840 to 1,120 lowing opportunity for public review
meters. and comment.
(iv) Primary Use: Dredged material. (11) Newport Beach, CA, (LA–3) Ocean
(v) Period of Use: Continuing use. Dredged Material Disposal Site—Re-
(vi) Restriction: Disposal shall be lim- gion IX.
ited to dredged material. (i) Location: Center coordinates of the
(9) Port Allen, HI. circle-shaped site are: 33°31′00″ North
(i) Location: (center point) Latitude— Latitude by 117°53′30″ West Longitude
21°50′00″ N. Longitude—159°35′00″ W. (North American Datum from 1983),

(ii) Size: Circular with a radius of 920 with a radius of 3,000 feet (915 meters).
meters. (ii) Size: 0.77 square nautical miles.
250
(iii) Depth: 1,500 to 1,675 feet (460 to (i) Location: 42°01′55″ N., 124°16′37″ W.;
510 meters). 42°01′55″ N., 124°16′13″ W.; 42°01′37″ N.,
(iv) Use Restricted to Disposal of: 124°16′13″ W.; and 42°01′37″ N., 124°16′37″
Dredged materials. W. (NAD83)
(v) Period of Use: Continuing use. (ii) Size: 0.09 square nautical mile.
(vi) Restrictions: Disposal shall be (iii) Depth: 21 meters (average).
limited to dredged materials that com- (iv) Primary Use: Dredged material.
ply with EPA’s Ocean Dumping Regu- (v) Period of Use: Continuing use.
lations. (vi) Restrictions: Disposal shall be
(12) Guam Deep Ocean Disposal Site limited to dredged material determined
(G–DODS)—Region IX. to be suitable for unconfined disposal
(i) Location: Center coordinates of the from the Chetco Estuary and River and
circle-shaped site are: 13°35.500′ North adjacent areas.
Latitude by 144°28.733′ East Longitude (2) Coos Bay, OR Dredged Material
(North American Datum from 1983), Site E.
with an overall diameter of 3 nautical (i) Location: 43°21′59″ N, 124°22′45″
miles (5.6 kilometers). W;43°21′48″ N, 124°21′59″ W; 43°21′35″ N,
(ii) Size: 7.1 square nautical miles 124°22′05″ W; 43°21′46″ N, 124°22′51″ W
(24.3 square kilometers) overall site. (NAD27).
(iii) Depth: 8,790 feet (2,680 meters). (ii) Size: 0.13 square nautical mile.
(iv) Use Restricted to Disposal of: Suit- (iii) Depth: Averages 17 meters.
able dredged materials. (iv) Primary Use: Dredged material.
ited to dredged material in the Coos
limited to a maximum of 1 million
Bay area of type 1, as defined in the
cubic yards (764,555 cubic meters) per
site designation final EIS.
calendar year of dredged materials that
(3) Coos Bay, OR Dredged Material
comply with EPA’s Ocean Dumping
Site F
Regulations; disposal operations shall
(i) Location: 43°22′54.8887″ N.,
be conducted in accordance with re-
124°19′28.9905″ W.; 43°21′32.8735″ N.,
quirements specified in a Site Manage-
124°20′37.7373″ W.; 43°22′51.4004″ N.,
ment and Monitoring Plan developed
124°23′32.4318″ W.; 43°23′58.4014″ N.,
by EPA and USACE, to be reviewed at
124°22′35.4308″ W. (NAD 83).
least every 10 years.
(ii) Size: 4.45 kilometers long and 2.45
(m) Region IX Final Other Wastes kilometers wide.
Sites. (iii) Depth: Ranges from 6 to 51 me-
(1) Fish Processing Waste Disposal ters.
Site, American Samoa. (iv) Primary Use: Dredged material
(i) Location: 14°24.00′ S., 170°38.30′ W determined to be suitable for ocean dis-
(NAD27) with a 1.5 nautical mile ra- posal.
dius. (v) Period of Use: Continuing Use.
(ii) Size: 7.07 square nautical miles. (vi) Restriction: Disposal shall be lim-
(iii) Depth: 1,502 fathoms (2,746 meters ited to dredged material determined to
or 9,012 feet). be suitable for unconfined disposal;
(iv) Primary Use: Disposal of fish Disposal shall be managed by the re-
processing wastes. strictions and requirements contained
(v) Period of Use: Continued use. in the currently-approved Site Manage-
(vi) Restriction: Disposal shall be lim- ment and Monitoring Plan (SMMP);
ited to dissolved air flotation (DAF) Monitoring, as specified in the SMMP,
sludge, presswater, and precooker is required.
water produced as a result of fish proc- (4) Coos Bay, OR Dredged Material
essing operations at fish canneries gen- Site H
erated in American Samoa. (i) Location: 43°23′53″ N, 124°22′48″ W;
(2) [Reserved] 43°23′42″ N, 124°23′01″ W; 43°24′16″ N,
(n) Region X Final Dredged Material 124°23′26″ W; 43°24′05″ N, 124°23′38″ W
Sites. (NAD27).
(1) Chetco, OR, Dredged Material (ii) Size: 0.13 square nautical mile.
Site. (iii) Depth: Averages 55 meters.
251
§ 228.15 40 CFR Ch. I (7–1–21 Edition)
(iv) Primary Use: Dredged material. (C) Depth: Ranges from approxi-
(v) Period of Use: Continuing use. mately 9 to 37 meters.
(vi) Restriction: Disposal shall be lim- (D) Primary Use: Dredged material.
ited to dredged material in the Coos (E) Period of Use: Continuing Use.
Bay area of type 2 and 3, as defined in (F) Restrictions: (1) Disposal shall be
the site designation final EIS. limited to dredged material determined
(5) Coquille River Entrance, OR. to be suitable for ocean disposal ac-
(i) Location: 43°08′26″ N, 124°26′44″ W; cording to 40 CFR 227.13, from the
43°08′03″ N, 124°26′08″ W; 43°08′13″ N, Umpqua River navigation channel and
124°27′00″ W; 43°07′50″ N, 124°26′23″ W adjacent areas;
Centroid: 43°08′08″ N, 124°26′34″ W (2) Disposal shall be managed by the
(NAD27). restrictions and requirements con-
(ii) Size: 0.17 square nautical miles. tained in the currently-approved Site
(iii) Depth: 18.3 meters. Management and Monitoring Plan
(iv) Period of Use: Continuing use. (SMMP);
(v) Restrictions: Disposal shall be lim- (3) Monitoring, as specified in the
ited to dredged material from the SMMP, is required.
Coquille Estuary and River and adja- (ii) South Umpqua River Site.
cent areas. (A) Location: 43°39′32.31″ N,
(6) Rogue River, OR—Dredged Mate- 124°14′35.60″ W; 43°39′35.23″ N, 124°13′11.01″
rial Site W; 43°38′53.08″ N, 124°14′32.94″ W;
(i) Location: 42°24′15.40″ N, 124°26′52.39″ 43°38′55.82″ N, 124°13′08.36″ W.
W; 42°24′03.40″ N, 124°26′39.39″ W;
(B) Size: Approximately 1.92 kilo-
42°23′39.40″ N, 124°27′17.40″ W; 42°23′51.40″
meters long and 1.22 kilometers wide,
N, 124°27′30.40″ W (NAD 83)
with a drop zone which is defined as a
(ii) Size: Approximately 1.1 kilo-
500-foot setback inscribed within all
meters long and 0.4 kilometers wide
sides of the site boundary, reducing the
(iii) Depth: Ranges from approxi-
permissible disposal area to a zone 5,300
mately 15 to 27 meters
feet long by 3,000 feet wide.
(iv) Primary Use: Dredged material
(C) Depth: Ranges from approxi-
(v) Period of Use: Continuing Use
mately 9 to 37 meters.
(vi) Restrictions: (A) Disposal shall be
(D) Primary Use: Dredged material.
limited to dredged material determined
to be suitable for ocean disposal ac- (E) Period of Use: Continuing Use.
cording to 40 CFR 227.13, from the (F) Restrictions: (1) Disposal shall be
Rogue River navigation channel and limited to dredged material determined
adjacent areas; to be suitable for ocean disposal ac-
(B) Disposal shall be managed by the cording to 40 CFR 227.13, from the
restrictions and requirements con- Umpqua River navigation channel and
tained in the currently-approved Site adjacent areas;
Management and Monitoring Plan (2) Disposal shall be managed by the
(SMMP); restrictions and requirements con-
(C) Monitoring, as specified in the tained in the currently-approved Site
SMMP, is required. Management and Monitoring Plan
(7) Umpqua River, OR—North and (SMMP);
South Dredged Material Disposal Sites. (3) Monitoring, as specified in the
(i) North Umpqua River Site. SMMP, is required.
(A) Location: 43°41′23.09″ N, (8) Mouth of the Columbia River, OR/
124°14′20.28″ W; 43°41′25.86″ N, 124°12′54.61″ WA Dredged Material Shallow Water
W; 43°40′43.62″ N, 124°14′17.85″ W; site.
43°40′46.37″ N, 124°12′52.74″ W. (i) Location: Overall Site Coordinates:
(B) Size: Approximately 1.92 kilo- 46°15′31.64″ N, 124°05′09.72″ W; 46°14′17.66″
meters long and 1.22 kilometers wide, N, 124°07′14.54″ W; 46°15′02.87″ N,
with a drop zone which is defined as a 124°08′11.47″ W; 46°15′52.77″ N, 124°05′42.92″
500-foot setback inscribed within all W. Drop Zone: 46°15′35.36″ N, 124°05′15.55″
sides of the site boundary, reducing the W; 46°14′31.07″ N, 124°07′03.25″ W;

permissible disposal area to a zone 5,300 46°14′58.83″ N, 124°07′36.89″ W; 46°15′42.38″
feet long by 3,000 feet wide. N, 124°05′26.65″ W (All NAD 83)
252
(ii) Size: 3.05 kilometers long and 0.32 (11) Grays Harbor Southwest Naviga-
to 1.10 kilometers wide or 1.4 square tion Site.
nautical mile. (i) Location: 46°52.94′ N, 124°13.81′ W;
(iii) Depth: Ranges from 14 to 23 me- 46°52.17′ N, 124°12.96′ W; 46°51.15′ N,
ters. 124°14.19′ W; 46°51.92′ N, 124°14.95′ W
(iv) Primary Use: Dredged Material (NAD27).
determined to be suitable for ocean dis- (ii) Size: 1.25 square nautical miles.
posal. (iii) Depth: 30–37 meters (average).
(v) Period of Use: Continuing Use. (iv) Primary use: Dredged material.
(vi) Restriction: Disposal shall be lim- (v) Period of use: Continuing use.
ited to dredged material determined to (vi) Restrictions: Disposal shall be
be suitable for unconfined disposal; limited to dredged material determined
Site use shall be consistent with the to be suitable for unconfined disposal
ability of the site to disperse disposed from Grays Harbor estuary and adja-
material into the littoral zone. cent areas. Additional discharge re-
(9) Mouth of the Columbia River, OR/ strictions will be contained in the EPA/
WA Dredged Material Deep Water site. Corps management plan for the site.
(i) Location: Overall Site Coordinates: (12) Nome, AK—East Site.
46°11′03.03″ N, 124°10′01.30″ W; 46°13′09.78″ (i) Location: 64°29′54″ N, 165°24′41″ W;
N, 124°12′39.67″ W; 46°10′40.88″ N, 64°29′45″ N, 165°23′27″ W; 64°28′57″ N,
124°16′46.48″ W; 46°08′34.22″ N, 124°14′08.07″ 165°23′29″ W; 64°29′07″ N, 165°24′25″.
W (which includes a 3,000-foot buffer); (NAD27).
Site Placement Area: 46°11′06.00″ N, (ii) Size: 0.37 square nautical mile.
124°11′05.99″ W; 46°12′28.01″ N, 124°12′48.48″ (iii) Depth: Ranges from 1 to 12 me-
W; 46°10′37.96″ N, 124°15′50.91″ W; ters.
46°09′15.99″ N, 124°14′08.40″ W (All NAD, (iv) Primary use: Dredged material.
83). (v) Period of use: Continuing use.
(ii) Size: 7.01 kilometers long by 5.18 (vi) Restrictions: Disposal shall be
kilometers wide or 10.5 square nautical limited to dredged material from
mile. Nome, Alaska, and adjacent areas. Use
(iii) Depth: Ranges from 58 to 91 me- will be coordinated with the City of
ters. Nome prior to dredging.
(iv) Primary Use: Dredged material (13) Nome, AK—West Site.
determined to be suitable for ocean dis- (i) Location: 64°30′04″ N, 165°25′52″ W;
posal. 64°29′18″ N, 165°26′04″ W; 64°29′13″ N,
(v) Period of Use: Continuing Use or 165°25′22″ W; 64°29′54″ N, 165°24′45″ W
until placed material has mounded to (NAD27).
an average height of 40 feet within the (ii) Size: 0.30 nautical miles.
placement area (see restriction 4 (iii) Depth: Ranges from 1 to 11 me-
below). ters.
(vi) Restrictions: Disposal shall be (iv) Primary use: Dredged material.
limited to dredged material determined (v) Period of use: Continuing use.
to be suitable for unconfined disposal; (vi) Restrictions: Disposal shall be
Site use shall be consistent with the limited to dredged material from
ability of the site to retain disposed Nome, Alaska, and adjacent areas. Use
material on-site; Direct disposal of will be coordinated with the City of
dredged material into the identified Nome prior to dredging. Preference
buffer zone is prohibited; and The will be given to placing any material in
Corps and/or EPA shall undertake spe- the inner third of the site to supple-
cific re-evaluation of site capacity once ment littoral drift, as needed.
the site is used and an average mound (14) Siuslaw River, OR—North and
height of 30 feet has accumulated South Dredged Material Disposal Sites.
throughout the placement area. This (i) North Siuslaw River Site.
evaluation will either confirm the (A) Location:
original 40-foot height restriction, or 44°01′31.03″ N, 124°10′12.92″ W,
recommend a more technically appro- 44°01′49.39″ N, 124°10′02.85″ W,

priate one. 44°01′31.97″ N, 124°09′01.86″ W,
(10) [Reserved] 44°01′13.45″ N, 124°09′11.41″ W.
253
(B) Size: Approximately 1.5 kilo- (E) Period of Use: Continuing use
meters long and 0.6 kilometers wide. (F) Restrictions: (1) Disposal shall be
(C) Depth: Ranges from approxi- limited to dredged material determined
mately 9 to 35 meters. to be suitable for ocean disposal ac-
(D) Primary Use: Dredged material. cording to 40 CFR 227.13 from the
(E) Period of Use: Continuing Use. Yaquina Bay and River navigation
(F) Restrictions: (1) Disposal shall be channel and adjacent areas;
limited to dredged material determined (2) Disposal shall be managed by the
to be suitable for ocean disposal ac- restrictions and requirements con-
cording to 40 CFR 227.13 from the tained in the currently-approved Site
Siuslaw River navigation channel and Management and Monitoring Plan
adjacent areas; (SMMP);
(2) Disposal shall be managed by the (3) Monitoring, as specified in the
restrictions and requirements con- SMMP, is required.
tained in the currently-approved Site (ii) South Site.
Management and Monitoring Plan (A) Location (NAD 83): 44°36′04.50″ N,
(SMMP); 124°07′52.66″ W; 44°35′59.39″ N, 124°06′57.84″
(3) Monitoring, as specified in the W; 44°35′00.85″ N, 124°08′04.27″ W;
SMMP, is required. 44°34′55.75″ N, 124°07′09.47″ W.
(ii) South Siuslaw River Site. (B) Size: Approximately 1.07 nautical
(A) Location: miles long and 0.66 nautical miles wide
44°00′46.72″ N, 124°10′26.55″ W, (0.71 square nautical miles); 597 acres
44°01′06.41″ N, 124°10′24.45″ W, (242 hectares)
44°01′04.12″ N, 124°09′43.52″ W, (C) Depth: Ranges from approxi-
44°00′44.45″ N, 124°09′45.63″ W. mately 112 to 152 feet (34 to 46 meters)
(B) Size: Approximately 0.9 kilo- (D) Primary Use: Dredged material
meters long and 0.6 kilometers wide. (E) Period of Use: Continuing use
(C) Depth: Ranges from approxi- (F) Restrictions: (1) Disposal shall be
mately 24 to 38 meters. limited to dredged material determined
(D) Primary Use: Dredged material. to be suitable for ocean disposal ac-
(E) Period of Use: Continuing Use. cording to 40 CFR 227.13, from the
(F) Restrictions: (1) Disposal shall be Yaquina Bay and River navigation
limited to dredged material determined channel and adjacent areas;
to be suitable for ocean disposal ac- (2) Disposal shall be managed by the
cording to 40 CFR 227.13, from the restrictions and requirements con-
Siuslaw River navigation channel and tained in the currently-approved Site
adjacent areas; Management and Monitoring Plan
(2) Disposal shall be managed by the (SMMP);
restrictions and requirements con- (3) Monitoring, as specified in the
tained in the currently-approved Site SMMP, is required.
Management and Monitoring Plan (o) Region X Final Other Wastes
(SMMP); Sites.
(3) Monitoring, as specified in the (1) No final sites.
SMMP, is required. (2) [Reserved]
(15) Yaquina Bay, OR—North and
South Ocean Dredged Material Dis- [59 FR 61130, Nov. 29, 1994]
posal Sites EDITORIAL NOTE: For FEDERAL REGISTER ci-
(i) North Site. tations affecting § 228.15, see the List of CFR
(A) Location (NAD 83): 44°38′17.98″ N, Sections Affected, which appears in the
124°07′25.95″ W; 44°38′12.86″ N, 124°06′31.10″ Finding Aids section of the printed volume
W; 44°37′14.33″ N, 124°07′37.57″ W; and at www.govinfo.gov.
44°37′09.22″ N, 124°06′42.73″ W.
(B) Size: Approximately 1.07 nautical PART 229—GENERAL PERMITS
miles long and 0.66 nautical miles wide
(0.71 square nautical miles); 597 acres Sec.
(242 hectares) 229.1 Burial at sea.
(C) Depth: Ranges from approxi- 229.2 Transport of target vessels.

mately 112 to 152 feet (34 to 46 meters) 229.3 Transportation and disposal of vessels.
(D) Primary Use: Dredged material AUTHORITY: 33 U.S.C. 1412 and 1418.
254
SOURCE: 42 FR 2489, Jan. 11, 1977, unless (c) Flowers and wreaths consisting of
otherwise noted. materials which are readily decompos-
able in the marine environment may be
§ 229.1 Burial at sea. disposed of under the general permit
(a) All persons subject to title I of set forth in this section at the site at
the Act are hereby granted a general which disposal of human remains is au-
permit to transport human remains thorized.
from the United States and all persons (d) All burials conducted under this
owning or operating a vessel or aircraft general permit shall be reported within
registered in the United States or fly- 30 days to the Regional Administrator
ing the United States flag and all de- of the Region from which the vessel
partments, agencies, or instrumental- carrying the remains departed.
ities of the United States are hereby
granted a general permit to transport § 229.2 Transport of target vessels.
human remains from any location for (a) The U.S. Navy is hereby granted a
the purpose of burial at sea and to bury general permit to transport vessels
such remains at sea subject to the from the United States or from any
following conditions: other location for the purpose of sink-
(1) Except as herein otherwise pro- ing such vessels in ocean waters in
vided, human remains shall be prepared testing ordnance and providing related
for burial at sea and shall be buried in data subject to the following condi-
accordance with accepted practices and tions:
requirements as may be deemed appro- (1) Such vessels may be sunk at times
priate and desirable by the United determined by the appropriate Navy
States Navy, United States Coast official;
Guard, or civil authority charged with (2) Necessary measures shall be taken
the responsibility for making such ar- to insure that the vessel sinks to the
rangements; bottom rapidly and permanently, and
(2) Burial at sea of human remains that marine navigation is not other-
which are not cremated shall take wise impaired by the sunk vessel;
place no closer than 3 nautical miles (3) All such vessel sinkings shall be
from land and in water no less than one conducted in water at least 1,000 fath-
hundred fathoms (six hundred feet) oms (6,000 feet) deep and at least 50
deep and in no less than three hundred nautical miles from land, as defined in
fathoms (eighteen hundred feet) from § 229.1(b); and
(i) 27°30′00″ to 31°00′00″ North Latitude (4) Before sinking, appropriate meas-
off St. Augustine and Cape Canaveral, ures shall be taken by qualified per-
Florida; (ii) 82°20′00″ to 84°00′00″ West sonnel at a Navy or other certified fa-
Longitude off Dry Tortugas, Florida; cility to remove to the maximum ex-
and (iii) 87°15′00″ to 89°50′00″ West Lon- tent practicable all materials which
gitude off the Mississippi River Delta, may degrade the marine environment,
Louisiana, to Pensacola, Florida. All including without limitation (i)
necessary measures shall be taken to emptying of all fuel tanks and fuel
ensure that the remains sink to the lines to the lowest point practicable,
bottom rapidly and permanently; and flushing of such tanks and lines with
(3) Cremated remains shall be buried water, and again emptying such tanks
in or on ocean waters without regard to and lines to the lowest point prac-
the depth limitations specified in para- ticable so that such tanks and lines are
graph (a)(2) of this section provided essentially free of petroleum, and (ii)
that such burial shall take place no removing from the hulls other pollut-
closer than 3 nautical miles from land. ants and all readily detachable mate-
(b) For purposes of this section and rial capable of creating debris or con-
§§ 229.2 and 229.3, land means that por- tributing to chemical pollution.
tion of the baseline from which the ter- (b) An annual report will be made to
ritorial sea is measured, as provided for the Administrator of the Environ-
in the Convention on the Territorial mental Protection Agency setting
Sea and the Contiguous Zone, which is forth the name of each vessel used as a
in closest proximity to the proposed target vessel, its approximate tonnage,
disposal site. and the location and date of sinking.
255
§ 229.3 40 CFR Ch. I (7–1–21 Edition)
§ 229.3 Transportation and disposal of hulls other pollutants and all readily
vessels. detachable material capable of cre-
(a) All persons subject to title I of ating debris or contributing to chem-
the Act are hereby granted a general ical pollution.
permit to transport vessels from the (4) Except in emergency situations,
United States, and all departments, as determined by the U.S. Army Corps
agencies, or instrumentalities of the of Engineers and/or the U.S. Coast
United States are hereby granted a Guard, the dumper shall, no later than
general permit to transport vessels 10 days prior to the proposed disposal
from any location for the purpose of date, notify the EPA Regional Admin-
disposal in the ocean subject to the fol- istrator and the District Commander of
lowing conditions: the U.S. Coast Guard that the vessel
(1) Except in emergency situations, has been cleaned and is available for
as determined by the U.S. Army Corps inspection; the vessel may be trans-
of Engineers and/or the U.S. Coast ported for dumping only after EPA and
Guard, the person desiring to dispose of the Coast Guard agree that the require-
a vessel under this general permit ments of paragraph (a)(3) of this sec-
shall, no later than 1 month prior to tion have been met.
the proposed disposal date, provide the (5) Disposal of these vessels shall
following information in writing to the take place in a site designated on cur-
EPA Regional Administrator for the rent nautical charts for the disposal of
Region in which the proposed disposal wrecks or no closer than 22 kilometers
will take place: (12 miles) from the nearest land and in
(i) A statement detailing the need for water no less than 50 fathoms (300 feet)
the disposal of the vessel; deep, and all necessary measures shall
(ii) Type and description of vessel to be taken to insure that the vessels sink
be disposed of and type of cargo nor- to the bottom rapidly and that marine
mally carried; navigation is not otherwise impaired.
(iii) Detailed description of the pro-
(6) Disposal shall not take place in
posed disposal procedures;
established shipping lanes unless at a
(iv) Information on the potential ef-
designated wreck site, nor in a des-
fect of the vessel disposal on the ma-
ignated marine sanctuary, nor in a lo-
rine environment; and
cation where the hulk may present a
(v) Documentation of an adequate
evaluation of alternatives to ocean dis- hazard to commercial trawling or na-
posal (i.e., scrap, salvage, and reclama- tional defense (see 33 CFR part 205).
tion). (7) Except in emergency situations,
(2) Transportation for the purpose of as determined by the U.S. Army Corps
ocean disposal may be accomplished of Engineers and/or the U.S. Coast
under the supervision of the District Guard, disposal of these vessels shall be
Commander of the U.S. Coast Guard or performed during daylight hours only.
his designee. (8) Except in emergency situations,
(3) Except in emergency situations, as determined by the U.S. Army Corps
as determined by the U.S. Army Corps of Engineers and/or the District Com-
of Engineers and/or the District Com- mander of the U.S. Coast Guard, the
mander of the U.S. Coast Guard, appro- Captain-of-the-Port (COTP), U.S. Coast
priate measures shall be taken, prior to Guard, and the EPA Regional Adminis-
disposal, by qualified personnel to re- trator shall be notified forty-eight (48)
move to the maximum extent prac- hours in advance of the proposed dis-
ticable all materials which may de- posal. In addition, the COTP and the
grade the marine environment, includ- EPA Regional Administrator shall be
ing without limitation (i) emptying of notified by telephone at least twelve
all fuel lines and fuel tanks to the low- (12) hours in advance of the vessel’s de-
est point practicable, flushing of such parture from port with such details as
lines and tanks with water, and again the proposed departure time and place,
emptying such lines and tanks to the disposal site location, estimated time
lowest point practicable so that such of arrival on site, and the name and
lines and tanks are essentially free of communication capability of the tow-
petroleum, and (ii) removing from the ing vessel. Schedule changes are to be
256
reported to the COTP as rapidly as pos- 230.42 Mud flats.

sible. 230.43 Vegetated shallows.
(9) The National Ocean Service, 230.44 Coral reefs.
NOAA, Nautical Data Branch, N/CS26, 230.45 Riffle and pool complexes.
Station 7308, 1315 East-West Highway,
Silver Spring, MD 20910, shall be noti- Subpart F—Potential Effects on Human Use
fied in writing, within one week, of the Characteristics
exact coordinates of the disposal site 230.50 Municipal and private water supplies.
so that it may be marked on appro- 230.51 Recreational and commercial fish-
priate charts. eries.
(b) [Reserved] 230.52 Water-related recreation.
230.53 Aesthetics.
230.54 Parks, national and historical monu-
FR 31517, July 2, 2019]
ments, national seashores, wilderness
areas, research sites, and similar
PART 230—SECTION 404(b)(1) preserves.
GUIDELINES FOR SPECIFICATION
OF DISPOSAL SITES FOR Subpart G—Evaluation and Testing
DREDGED OR FILL MATERIAL 230.60 General evaluation of dredged or fill
material.
Subpart A—General 230.61 Chemical, biological, and physical
evaluation and testing.
Sec.
230.1 Purpose and policy. Subpart H—Actions To Minimize Adverse
230.3 Definitions.
Effects
230.4 Organization. 230.70 Actions concerning the location of
230.5 General procedures to be followed. the discharge.
230.6 Adaptability.
230.71 Actions concerning the material to be
230.7 General permits.
discharged.
230.72 Actions controlling the material
Subpart B—Compliance With the
after discharge.
Guidelines 230.73 Actions affecting the method of dis-
230.10 Restrictions on discharge. persion.
230.11 Factual determinations. 230.74 Actions related to technology.
230.12 Findings of compliance or non-com- 230.75 Actions affecting plant and animal
pliance with the restrictions on dis- populations.
charge. 230.76 Actions affecting human use.
230.77 Other actions.
Subpart C—Potential Impacts on Physical
and Chemical Characteristics of the Subpart I—Planning To Shorten Permit
Aquatic Ecosystem Processing Time
230.20 Substrate. 230.80 Advanced identification of disposal
230.21 Suspended particulates/turbidity. areas.
230.22 Water.
230.23 Current patterns and water circula- Subpart J—Compensatory Mitigation for
tion. Losses of Aquatic Resources
230.24 Normal water fluctuations.
230.25 Salinity gradients. 230.91 Purpose and general considerations.
230.92 Definitions.
Subpart D—Potential Impacts on Biological 230.93 General compensatory mitigation re-
Characteristics of the Aquatic Ecosystem quirements.
230.94 Planning and documentation.
230.30 Threatened and endangered species.
230.95 Ecological performance standards.
230.31 Fish, crustaceans, mollusks, and
other aquatic organisms in the food web. 230.96 Monitoring.
230.32 Other wildlife. 230.97 Management.
230.98 Mitigation banks and in-lieu fee pro-
Subpart E—Potential Impacts on Special grams.
Aquatic Sites AUTHORITY: 33 U.S.C. 1251 et seq.

230.40 Sanctuaries and refuges. SOURCE: 45 FR 85344, Dec. 24, 1980, unless
230.41 Wetlands. otherwise noted.
257
§ 230.1 40 CFR Ch. I (7–1–21 Edition)
Subpart A—General vironmental Protection Agency in

accordance with section 404(g) and (h)
§ 230.1 Purpose and policy. of the Act (see 40 CFR parts 122, 123 and
(a) The purpose of these Guidelines is 124);
to restore and maintain the chemical, (4) Statewide dredged or fill material
physical, and biological integrity of regulatory programs with best manage-
waters of the United States through ment practices approved under section
the control of discharges of dredged or 208(b)(4)(B) and (C) of the Act (see 40
fill material. CFR 35.1560);
(b) Congress has expressed a number (5) Federal construction projects
of policies in the Clean Water Act. which meet criteria specified in section
These Guidelines are intended to be 404(r) of the Act.
consistent with and to implement (b) These Guidelines will be applied
those policies. in the review of proposed discharges of
(c) Fundamental to these Guidelines dredged or fill material into navigable
is the precept that dredged or fill mate- waters which lie inside the baseline
rial should not be discharged into the from which the territorial sea is meas-
aquatic ecosystem, unless it can be ured, and the discharge of fill material
demonstrated that such a discharge into the territorial sea, pursuant to the
will not have an unacceptable adverse procedures referred to in paragraphs
impact either individually or in com- (a)(1) and (2) of this section. The dis-
bination with known and/or probable charge of dredged material into the
impacts of other activities affecting territorial sea is governed by the Ma-
the ecosystems of concern. rine Protection, Research, and Sanc-
(d) From a national perspective, the tuaries Act of 1972, Pub. L. 92–532, and
degradation or destruction of special regulations and criteria issued pursu-
aquatic sites, such as filling operations ant thereto (40 CFR parts 220 through
in wetlands, is considered to be among 228).
the most severe environmental impacts (c) Guidance on interpreting and im-
covered by these Guidelines. The guid- plementing these Guidelines may be
ing principle should be that degrada- prepared jointly by EPA and the Corps
tion or destruction of special sites may at the national or regional level from
represent an irreversible loss of valu- time to time. No modifications to the
able aquatic resources. basic application, meaning, or intent of
these Guidelines will be made without
§ 230.2 Applicability. rulemaking by the Administrator
(a) These Guidelines have been devel- under the Administrative Procedure
oped by the Administrator of the Envi- Act (5 U.S.C. 551 et seq.).
ronmental Protection Agency in con-
junction with the Secretary of the § 230.3 Definitions.
Army acting through the Chief of Engi- For purposes of this part, the fol-
neers under section 404(b)(1) of the lowing terms shall have the meanings
Clean Water Act (33 U.S.C. 1344). The indicated:
Guidelines are applicable to the speci- (a) The term Act means the Clean
fication of disposal sites for discharges Water Act (also known as the Federal
of dredged or fill material into waters Water Pollution Control Act or
of the United States. Sites may be FWPCA) Pub. L. 92–500, as amended by
specified through: Pub. L. 95–217, 33 U.S.C. 1251, et seq.
(1) The regulatory program of the (b) The terms aquatic environment and
U.S. Army Corps of Engineers under aquatic ecosystem mean waters of the
sections 404(a) and (e) of the Act (see 33 United States, including wetlands, that
CFR Parts 320, 323 and 325); serve as habitat for interrelated and
(2) The civil works program of the interacting communities and popu-
U.S. Army Corps of Engineers (see 33 lations of plants and animals.
CFR 209.145 and section 150 of Pub. L. (c) The term carrier of contaminant
94–587, Water Resources Development means dredged or fill material that
Act of 1976); contains contaminants.

(3) Permit programs of States ap- (d) The term contaminant means a
proved by the Administrator of the En- chemical or biological substance in a
258
form that can be incorporated into, tion of ‘‘pollutant’’ in section 502 of the
onto or be ingested by and that harms Act means only radioactive materials
aquatic organisms, consumers of which are not encompassed in the defi-
aquatic organisms, or users of the nition of source, byproduct, or special
aquatic environment, and includes but nuclear materials as defined by the
is not limited to the substances on the Atomic Energy Act of 1954, as amend-
307(a)(1) list of toxic pollutants ed, and regulated under the Atomic En-
promulgated on January 31, 1978 (43 FR ergy Act. Examples of radioactive ma-
4109). terials not covered by the Atomic En-
(e) The term discharge point means ergy Act and, therefore, included with-
the point within the disposal site at in the term ‘‘pollutant’’, are radium
which the dredged or fill material is re- and accelerator produced isotopes. See
leased. Train v. Colorado Public Interest Re-
(f) The term disposal site means that search Group, Inc., 426 U.S. 1 (1976).
portion of the ‘‘waters of the United (k) The term pollution means the
States’’ where specific disposal activi- man-made or man-induced alteration
ties are permitted and consist of a bot- of the chemical, physical, biological or
tom surface area and any overlying radiological integrity of an aquatic
volume of water. In the case of wet- ecosystem.
lands on which surface water is not (l) The term practicable means avail-
present, the disposal site consists of able and capable of being done after
the wetland surface area. taking into consideration cost, existing
(g) The term extraction site means the technology, and logistics in light of
place from which the dredged or fill overall project purposes.
material proposed for discharge is to be (m) Special aquatic sites means those
removed. sites identified in subpart E. They are
(h) The term mixing zone means a geographic areas, large or small, pos-
limited volume of water serving as a sessing special ecological characteris-
zone of initial dilution in the imme- tics of productivity, habitat, wildlife
diate vicinity of a discharge point protection, or other important and eas-
where receiving water quality may not ily disrupted ecological values. These
meet quality standards or other re- areas are generally recognized as sig-
quirements otherwise applicable to the nificantly influencing or positively
receiving water. The mixing zone contributing to the general overall en-
should be considered as a place where vironmental health or vitality of the
wastes and water mix and not as a entire ecosystem of a region. (See
place where effluents are treated. § 230.10(a)(3))
(i) The term permitting authority (n) The term territorial sea means the
means the District Engineer of the U.S. belt of the sea measured from the base-
Army Corps of Engineers or such other line as determined in accordance with
individual as may be designated by the the Convention on the Territorial Sea
Secretary of the Army to issue or deny and the Contiguous Zone and extending
permits under section 404 of the Act; or seaward a distance of three miles.
the State Director of a permit program (o) Waters of the United States means
approved by EPA under section 404(g) the term as it is defined in § 120.2 of
and section 404(h) or his delegated rep- this chapter.
resentative. [45 FR 85344, Dec. 24, 1980, as amended at 58
(j) The term pollutant means dredged FR 45037, Aug. 25, 1993; 80 FR 37115, June 29,
spoil, solid waste, incinerator residue, 2015; 83 FR 5208, Feb. 6, 2018; 84 FR 56669, Oct.
sewage, garbage, sewage sludge, muni- 22, 2019; 85 FR 22341, Apr. 21, 2020]
tions, chemical wastes, biological ma-
terials, radioactive materials not cov- § 230.4 Organization.
ered by the Atomic Energy Act, heat, The Guidelines are divided into eight
wrecked or discarded equipment, rock, subparts. Subpart A presents those pro-
sand, cellar dirt, and industrial, munic- visions of general applicability, such as
ipal, and agricultural waste discharged purpose and definitions. Subpart B es-
into water. The legislative history of tablishes the four conditions which
the Act reflects that ‘‘radioactive ma- must be satisfied in order to make a
terials’’ as included within the defini- finding that a proposed discharge of
259
§ 230.5 40 CFR Ch. I (7–1–21 Edition)
dredged or fill material complies with terize the non-living environment of

the Guidelines. Section 230.11 of sub- the candidate site, the substrate and
part B, sets forth factual determina- the water including its dynamic char-
tions which are to be considered in de- acteristics (subpart C).
termining whether or not a proposed (f) Identify and evaluate any special
discharge satisfies the subpart B condi- or critical characteristics of the can-
tions of compliance. Subpart C de- didate disposal site, and surrounding
scribes the physical and chemical com- areas which might be affected by use of
ponents of a site and provides guidance such site, related to their living com-
as to how proposed discharges of munities or human uses (subparts D, E,
dredged or fill material may affect and F).
these components. Subparts D through (g) Review Factual Determinations
F detail the special characteristics of in § 230.11 to determine whether the in-
particular aquatic ecosystems in terms formation in the project file is suffi-
of their values, and the possible loss of cient to provide the documentation re-
these values due to discharges of quired by § 230.11 or to perform the pre-
dredged or fill material. Subpart G pre- testing evaluation described in § 230.60,
scribes a number of physical, chemical, or other information is necessary.
and biological evaluations and testing (h) Evaluate the material to be dis-
procedures to be used in reaching the charged to determine the possibility of
required factual determinations. Sub- chemical contamination or physical in-
part H details the means to prevent or compatibility of the material to be dis-
mimimize adverse effects. Subpart I charged (§ 230.60).
concerns advanced identification of (i) If there is a reasonable probability
disposal areas. of chemical contamination, conduct
the appropriate tests according to the
§ 230.5 General procedures to be fol- section on Evaluation and Testing
lowed. (§ 230.61).
In evaluating whether a particular (j) Identify appropriate and prac-
discharge site may be specified, the ticable changes to the project plan to
permitting authority should use these minimize the environmental impact of
Guidelines in the following sequence: the discharge, based upon the special-
(a) In order to obtain an overview of ized methods of minimization of im-
the principal regulatory provisions of pacts in subpart H.
the Guidelines, review the restrictions (k) Make and document Factual De-
on discharge in § 230.10(a) through (d), terminations in § 230.11.
the measures to mimimize adverse im- (l) Make and document Findings of
pact of subpart H, and the required fac- Compliance (§ 230.12) by comparing Fac-
tual determinations of § 230.11. tual Determinations with the require-
(b) Determine if a General permit ments for discharge of § 230.10.
(§ 230.7) is applicable; if so, the appli- This outline of the steps to follow in
cant needs merely to comply with its using the Guidelines is simplified for
terms, and no further action by the purposes of illustration. The actual
permitting authority is necessary. Spe- process followed may be iterative, with
cial conditions for evaluation of pro- the results of one step leading to a re-
posed General permits are contained in examination of previous steps. The per-
§ 230.7. If the discharge is not covered mitting authority must address all of
by a General permit: the relevant provisions of the Guide-
(c) Examine practicable alternatives lines in reaching a Finding of Compli-
to the proposed discharge, that is, not ance in an individual case.
discharging into the waters of the U.S.
or discharging into an alternative § 230.6 Adaptability.
aquatic site with potentially less dam- (a) The manner in which these Guide-
aging consequences (§ 230.10(a)). lines are used depends on the physical,
(d) Delineate the candidate disposal biological, and chemical nature of the
site consistent with the criteria and proposed extraction site, the material
evaluations of § 230.11(f). to be discharged, and the candidate dis-

(e) Evaluate the various physical and posal site, including any other impor-
chemical components which charac- tant components of the ecosystem
260
being evaluated. Documentation to 208(b)(4)(B) and (C) Best Management

demonstrate knowledge about the ex- Practices, the analysis and documenta-
traction site, materials to be ex- tion required by the Guidelines will be
tracted, and the candidate disposal site performed at the time of General per-
is an essential component of guideline mit issuance or section 208(b)(4)(B) and
application. These Guidelines allow (C) Best Management Practices pro-
evaluation and documentation for a va- mulgation and will not be repeated
riety of activities, ranging from those when activities are conducted under a
with large, complex impacts on the General permit or section 208(b)(4)(B)
aquatic environment to those for which and (C) Best Management Practices
the impact is likely to be innocuous. It control. These Guidelines do not re-
is unlikely that the Guidelines will quire reporting or formal written com-
apply in their entirety to any one ac- munication at the time individual ac-
tivity, no matter how complex. It is tivities are initiated under a General
anticipated that substantial numbers
permit or section 208(b)(4)(B) and (C)
of permit applications will be for
Best Management Practices. However,
minor, routine activities that have lit-
a particular General permit may re-
tle, if any, potential for significant
degradation of the aquatic environ- quire appropriate reporting.
ment. It generally is not intended or § 230.7 General permits.
expected that extensive testing, eval-
uation or analysis will be needed to (a) Conditions for the issuance of Gen-
make findings of compliance in such eral permits. A General permit for a cat-
routine cases. Where the conditions for egory of activities involving the dis-
General permits are met, and where charge of dredged or fill material com-
numerous applications for similar ac- plies with the Guidelines if it meets
tivities are likely, the use of General the applicable restrictions on the dis-
permits will eliminate repetitive eval- charge in § 230.10 and if the permitting
uation and documentation for indi- authority determines that:
vidual discharges. (1) The activities in such category
(b) The Guidelines user, including the are similar in nature and similar in
agency or agencies responsible for im- their impact upon water quality and
plementing the Guidelines, must recog- the aquatic environment;
nize the different levels of effort that (2) The activities in such category
should be associated with varying de- will have only minimal adverse effects
grees of impact and require or prepare when performed separately; and
commensurate documentation. The (3) The activities in such category
level of documentation should reflect will have only minimal cumulative ad-
the significance and complexity of the verse effects on water quality and the
discharge activity.
aquatic environment.
(c) An essential part of the evalua-
(b) Evaluation process. To reach the
tion process involves making deter-
minations as to the relevance of any determinations required in paragraph
portion(s) of the Guidelines and con- (a) of this section, the permitting au-
ducting further evaluation only as thority shall set forth in writing an
needed. However, where portions of the evaluation of the potential individual
Guidelines review procedure are ‘‘short and cumulative impacts of the cat-
form’’ evaluations, there still must be egory of activities to be regulated
sufficient information (including con- under the General permit. While some
sideration of both individual and cumu- of the information necessary for this
lative impacts) to support the decision evaluation can be obtained from poten-
of whether to specify the site for dis- tial permittees and others through the
posal of dredged or fill material and to proposal of General permits for public
support the decision to curtail or ab- review, the evaluation must be com-
breviate the evaluation process. The pleted before any General permit is
presumption against the discharge in issued, and the results must be pub-
§ 230.1 applies to this decision-making. lished with the final permit.

(d) In the case of activities covered (1) This evaluation shall be based
by General permits or section upon consideration of the prohibitions
261
§ 230.10 40 CFR Ch. I (7–1–21 Edition)
listed in § 230.10(b) and the factors list- additional procedural and substantive re-
ed in § 230.10(c), and shall include docu- quirements, a discharge complying with the
mented information supporting each requirement of these Guidelines will not
automatically receive a permit.
factual determination in § 230.11 of the
Guidelines (consideration of alter- Although all requirements in § 230.10
natives in § 230.10(a) are not directly must be met, the compliance evalua-
applicable to General permits); tion procedures will vary to reflect the
(2) The evaluation shall include a seriousness of the potential for adverse
precise description of the activities to impacts on the aquatic ecosystems
be permitted under the General permit, posed by specific dredged or fill mate-
explaining why they are sufficiently rial discharge activities.
similar in nature and in environmental (a) Except as provided under section
impact to warrant regulation under a 404(b)(2), no discharge of dredged or fill
single General permit based on sub- material shall be permitted if there is
parts C through F of the Guidelines. a practicable alternative to the pro-
Allowable differences between activi- posed discharge which would have less
ties which will be regulated under the adverse impact on the aquatic eco-
same General permit shall be specified. system, so long as the alternative does
Activities otherwise similar in nature not have other significant adverse en-
may differ in environmental impact vironmental consequences.
due to their location in or near eco- (1) For the purpose of this require-
logically sensitive areas, areas with ment, practicable alternatives include,
unique chemical or physical character- but are not limited to:
istics, areas containing concentrations (i) Activities which do not involve a
of toxic substances, or areas regulated discharge of dredged or fill material
for specific human uses or by specific into the waters of the United States or
land or water management plans (e.g., ocean waters;
areas regulated under an approved (ii) Discharges of dredged or fill ma-
Coastal Zone Management Plan). If terial at other locations in waters of
there are specific geographic areas the United States or ocean waters;
within the purview of a proposed Gen- (2) An alternative is practicable if it
eral permit (called a draft General per- is available and capable of being done
mit under a State 404 program), which after taking into consideration cost,
are more appropriately regulated by in- existing technology, and logistics in
dividual permit due to the consider- light of overall project purposes. If it is
ations cited in this paragraph, they otherwise a practicable alternative, an
shall be clearly delineated in the eval- area not presently owned by the appli-
uation and excluded from the permit. cant which could reasonably be ob-
In addition, the permitting authority tained, utilized, expanded or managed
may require an individual permit for in order to fulfill the basic purpose of
any proposed activity under a General the proposed activity may be con-
permit where the nature or location of sidered.
the activity makes an individual per- (3) Where the activity associated
mit more appropriate. with a discharge which is proposed for
(3) To predict cumulative effects, the a special aquatic site (as defined in
evaluation shall include the number of subpart E) does not require access or
individual discharge activities likely proximity to or siting within the spe-
to be regulated under a General permit cial aquatic site in question to fulfill
until its expiration, including repeti- its basic purpose (i.e., is not ‘‘water de-
tions of individual discharge activities pendent’’), practicable alternatives
at a single location. that do not involve special aquatic
sites are presumed to be available, un-
Subpart B—Compliance With the less clearly demonstrated otherwise. In
Guidelines addition, where a discharge is proposed
for a special aquatic site, all prac-
§ 230.10 Restrictions on discharge. ticable alternatives to the proposed
NOTE: Because other laws may apply to discharge which do not involve a dis-
particular discharges and because the Corps charge into a special aquatic site are
of Engineers or State 404 agency may have presumed to have less adverse impact
262
on the aquatic ecosystem, unless clear- under title III of the Marine Protec-
ly demonstrated otherwise. tion, Research, and Sanctuaries Act of
(4) For actions subject to NEPA, 1972.
where the Corps of Engineers is the (c) Except as provided under section
permitting agency, the analysis of al- 404(b)(2), no discharge of dredged or fill
ternatives required for NEPA environ- material shall be permitted which will
mental documents, including supple- cause or contribute to significant deg-
mental Corps NEPA documents, will in radation of the waters of the United
most cases provide the information for States. Findings of significant degrada-
the evaluation of alternatives under tion related to the proposed discharge
these Guidelines. On occasion, these shall be based upon appropriate factual
NEPA documents may address a broad- determinations, evaluations, and tests
er range of alternatives than required required by subparts B and G, after
to be considered under this paragraph consideration of subparts C through F,
or may not have considered the alter- with special emphasis on the persist-
natives in sufficient detail to respond ence and permanence of the effects out-
to the requirements of these Guide- lined in those subparts. Under these
lines. In the latter case, it may be nec- Guidelines, effects contributing to sig-
essary to supplement these NEPA doc- nificant degradation considered indi-
uments with this additional informa- vidually or collectively, include:
tion. (1) Significantly adverse effects of
(5) To the extent that practicable al- the discharge of pollutants on human
ternatives have been identified and health or welfare, including but not
evaluated under a Coastal Zone Man- limited to effects on municipal water
agement program, a section 208 pro- supplies, plankton, fish, shellfish, wild-
gram, or other planning process, such life, and special aquatic sites.
evaluation shall be considered by the (2) Significantly adverse effects of
permitting authority as part of the the discharge of pollutants on life
consideration of alternatives under the stages of aquatic life and other wildlife
Guidelines. Where such evaluation is dependent on aquatic ecosystems, in-
less complete than that contemplated cluding the transfer, concentration,
under this subsection, it must be sup- and spread of pollutants or their by-
plemented accordingly. products outside of the disposal site
(b) No discharge of dredged or fill through biological, physical, and chem-
material shall be permitted if it: ical processes;
(1) Causes or contributes, after con- (3) Significantly adverse effects of
sideration of disposal site dilution and the discharge of pollutants on aquatic
dispersion, to violations of any applica- ecosystem diversity, productivity, and
ble State water quality standard; stability. Such effects may include, but
(2) Violates any applicable toxic ef- are not limited to, loss of fish and wild-
fluent standard or prohibition under life habitat or loss of the capacity of a
section 307 of the Act; wetland to assimilate nutrients, purify
(3) Jeopardizes the continued exist- water, or reduce wave energy; or
ence of species listed as endangered or (4) Significantly adverse effects of
threatened under the Endangered Spe- discharge of pollutants on recreational,
cies Act of 1973, as amended, or results aesthetic, and economic values.
in likelihood of the destruction or ad- (d) Except as provided under section
verse modification of a habitat which 404(b)(2), no discharge of dredged or fill
is determined by the Secretary of Inte- material shall be permitted unless ap-
rior or Commerce, as appropriate, to be propriate and practicable steps have
a critical habitat under the Endan- been taken which will minimize poten-
gered Species Act of 1973, as amended. tial adverse impacts of the discharge
If an exemption has been granted by on the aquatic ecosystem. Subpart H
the Endangered Species Committee, identifies such possible steps.
the terms of such exemption shall
apply in lieu of this subparagraph; § 230.11 Factual determinations.
(4) Violates any requirement imposed The permitting authority shall deter-
by the Secretary of Commerce to pro- mine in writing the potential short-
tect any marine sanctuary designated term or long-term effects of a proposed
263
§ 230.11 40 CFR Ch. I (7–1–21 Edition)
discharge of dredged or fill material on trophication plus other appropriate

the physical, chemical, and biological characteristics. Consideration shall
components of the aquatic environ- also be given to the potential diversion
ment in light of subparts C through F. or obstruction of flow, alterations of
Such factual determinations shall be bottom contours, or other significant
used in § 230.12 in making findings of changes in the hydrologic regime. Ad-
compliance or non-compliance with the ditional consideration of the possible
restrictions on discharge in § 230.10. loss of environmental values (§§ 230.23
The evaluation and testing procedures through 230.25) and actions to minimize
described in § 230.60 and § 230.61 of sub- impacts (subpart H), shall be used in
part G shall be used as necessary to making these determinations. Poten-
make, and shall be described in, such tial significant effects on the current
determination. The determinations of patterns, water circulation, normal
effects of each proposed discharge shall water fluctuation and salinity shall be
include the following: evaluated on the basis of the proposed
(a) Physical substrate determinations. method, volume, location, and rate of
Determine the nature and degree of ef- discharge.
fect that the proposed discharge will (c) Suspended particulate/turbidity de-
have, individually and cumulatively, terminations. Determine the nature and
on the characteristics of the substrate degree of effect that the proposed dis-
at the proposed disposal site. Consider- charge will have, individually and cu-
ation shall be given to the similarity in mulatively, in terms of potential
particle size, shape, and degree of com- changes in the kinds and concentra-
paction of the material proposed for tions of suspended particulate/tur-
discharge and the material consti- bidity in the vicinity of the disposal
tuting the substrate at the disposal site. Consideration shall be given to
site, and any potential changes in sub- the grain size of the material proposed
strate elevation and bottom contours, for discharge, the shape and size of the
including changes outside of the dis- plume of suspended particulates, the
posal site which may occur as a result duration of the discharge and resulting
of erosion, slumpage, or other move- plume and whether or not the potential
ment of the discharged material. The changes will cause violations of appli-
duration and physical extent of sub- cable water quality standards. Consid-
strate changes shall also be considered. eration should also be given to the pos-
The possible loss of environmental val- sible loss of environmental values
ues (§ 230.20) and actions to minimize (§ 230.21) and to actions for minimizing
impact (subpart H) shall also be consid- impacts (subpart H). Consideration
ered in making these determinations. shall include the proposed method, vol-
Potential changes in substrate ele- ume, location, and rate of discharge, as
vation and bottom contours shall be well as the individual and combined ef-
predicted on the basis of the proposed fects of current patterns, water cir-
method, volume, location, and rate of culation and fluctuations, wind and
discharge, as well as on the individual wave action, and other physical factors
and combined effects of current pat- on the movement of suspended
terns, water circulation, wind and wave particulates.
action, and other physical factors that (d) Contaminant determinations. Deter-
may affect the movement of the dis- mine the degree to which the material
charged material. proposed for discharge will introduce,
(b) Water circulation, fluctuation, and relocate, or increase contaminants.
salinity determinations. Determine the This determination shall consider the
nature and degree of effect that the material to be discharged, the aquatic
proposed discharge will have individ- environment at the proposed disposal
ually and cumulatively on water, cur- site, and the availability of contami-
rent patterns, circulation including nants.
downstream flows, and normal water (e) Aquatic ecosystem and organism de-
fluctuation. Consideration shall be terminations. Determine the nature and
given to water chemistry, salinity, degree of effect that the proposed dis-
clarity, color, odor, taste, dissolved gas charge will have, both individually and
levels, temperature, nutrients, and eu- cumulatively, on the structure and
264
function of the aquatic ecosystem and of material (sand, silt, clay, etc.) and
organisms. Consideration shall be settling velocities;
given to the effect at the proposed dis- (ix) Number of discharge actions per
posal site of potential changes in sub- unit of time;
strate characteristics and elevation, (x) Other factors of the disposal site
water or substrate chemistry, nutri- that affect the rates and patterns of
ents, currents, circulation, fluctuation, mixing.
and salinity, on the recolonization and (g) Determination of cumulative effects
existence of indigenous aquatic orga- on the aquatic ecosystem. (1) Cumulative
nisms or communities. Possible loss of impacts are the changes in an aquatic
environmental values (§ 230.31), and ac- ecosystem that are attributable to the
tions to minimize impacts (subpart H) collective effect of a number of indi-
shall be examined. Tests as described vidual discharges of dredged or fill ma-
in § 230.61 (Evaluation and Testing), terial. Although the impact of a par-
may be required to provide information ticular discharge may constitute a
on the effect of the discharge material minor change in itself, the cumulative
on communities or populations of orga- effect of numerous such piecemeal
nisms expected to be exposed to it. changes can result in a major impair-
(f) Proposed disposal site determina- ment of the water resources and inter-
tions. (1) Each disposal site shall be fere with the productivity and water
specified through the application of quality of existing aquatic ecosystems.
these Guidelines. The mixing zone shall (2) Cumulative effects attributable to
be confined to the smallest practicable the discharge of dredged or fill mate-
zone within each specified disposal site rial in waters of the United States
that is consistent with the type of dis- should be predicted to the extent rea-
persion determined to be appropriate sonable and practical. The permitting
by the application of these Guidelines. authority shall collect information and
In a few special cases under unique en- solicit information from other sources
vironmental conditions, where there is about the cumulative impacts on the
adequate justification to show that aquatic ecosystem. This information
widespread dispersion by natural shall be documented and considered
means will result in no significantly during the decision-making process
adverse environmental effects, the dis- concerning the evaluation of individual
charged material may be intended to permit applications, the issuance of a
be spread naturally in a very thin layer General permit, and monitoring and
over a large area of the substrate rath- enforcement of existing permits.
er than be contained within the dis- (h) Determination of secondary effects
posal site. on the aquatic ecosystem. (1) Secondary
(2) The permitting authority and the effects are effects on an aquatic eco-
Regional Administrator shall consider system that are associated with a dis-
the following factors in determining charge of dredged or fill materials, but
the acceptability of a proposed mixing do not result from the actual place-
zone: ment of the dredged or fill material.
(i) Depth of water at the disposal Information about secondary effects on
site; aquatic ecosystems shall be considered
(ii) Current velocity, direction, and prior to the time final section 404 ac-
variability at the disposal site; tion is taken by permitting authori-
(iii) Degree of turbulence; ties.
(iv) Stratification attributable to (2) Some examples of secondary ef-
causes such as obstructions, salinity or fects on an aquatic ecosystem are fluc-
density profiles at the disposal site; tuating water levels in an impound-
(v) Discharge vessel speed and direc- ment and downstream associated with
tion, if appropriate; the operation of a dam, septic tank
(vi) Rate of discharge; leaching and surface runoff from resi-
(vii) Ambient concentration of con- dential or commercial developments on
stituents of interest; fill, and leachate and runoff from a
(viii) Dredged material characteris- sanitary landfill located in waters of

tics, particularly concentrations of the U.S. Activities to be conducted on
constituents, amount of material, type fast land created by the discharge of
265
§ 230.12 40 CFR Ch. I (7–1–21 Edition)
dredged or fill material in waters of the Subpart C—Potential Impacts on

United States may have secondary im- Physical and Chemical Char-
pacts within those waters which should acteristics of the Aquatic Eco-
be considered in evaluating the impact
of creating those fast lands.
system
NOTE: The effects described in this subpart
§ 230.12 Findings of compliance or should be considered in making the factual
non-compliance with the restric- determinations and the findings of compli-
tions on discharge. ance or non-compliance in subpart B.
(a) On the basis of these Guidelines [45 FR 85344, Dec. 24, 1980, as amended at 73
(subparts C through G) the proposed FR 19687, Apr. 10, 2008]
disposal sites for the discharge of
dredged or fill material must be: § 230.20 Substrate.
(1) Specified as complying with the (a) The substrate of the aquatic eco-
requirements of these Guidelines; or system underlies open waters of the
(2) Specified as complying with the United States and constitutes the sur-
requirements of these Guidelines with face of wetlands. It consists of organic
the inclusion of appropriate and prac- and inorganic solid materials and in-
ticable discharge conditions (see sub- cludes water and other liquids or gases
parts H and J) to minimize pollution or that fill the spaces between solid
adverse effects to the affected aquatic particles.
ecosystems; or (b) Possible loss of environmental
(3) Specified as failing to comply characteristics and values: The dis-
with the requirements of these Guide- charge of dredged or fill material can
lines where: result in varying degrees of change in
(i) There is a practicable alternative the complex physical, chemical, and bi-
to the proposed discharge that would ological characteristics of the sub-
have less adverse effect on the aquatic strate. Discharges which alter sub-
ecosystem, so long as such alternative strate elevation or contours can result
does not have other significant adverse in changes in water circulation, depth,
environmental consequences; or current pattern, water fluctuation and
(ii) The proposed discharge will re- water temperature. Discharges may ad-
sult in significant degradation of the versely affect bottom-dwelling orga-
aquatic ecosystem under § 230.10(b) or nisms at the site by smothering immo-
(c); or bile forms or forcing mobile forms to
(iii) The proposed discharge does not migrate. Benthic forms present prior to
include all appropriate and practicable a discharge are unlikely to recolonize
measures to minimize potential harm on the discharged material if it is very
to the aquatic ecosystem; or dissimilar from that of the discharge
(iv) There does not exist sufficient in- site. Erosion, slumping, or lateral dis-
formation to make a reasonable judg- placement of surrounding bottom of
ment as to whether the proposed dis- such deposits can adversely affect
charge will comply with these Guide- areas of the substrate outside the pe-
lines. rimeters of the disposal site by chang-
(b) Findings under this section shall ing or destroying habitat. The bulk and
be set forth in writing by the permit- composition of the discharged material
ting authority for each proposed dis- and the location, method, and timing
charge and made available to the per- of discharges may all influence the de-
mit applicant. These findings shall in- gree of impact on the substrate.
clude the factual determinations re-
quired by § 230.11, and a brief expla- § 230.21 Suspended particulates/tur-
nation of any adaptation of these bidity.
Guidelines to the activity under con- (a) Suspended particulates in the
sideration. In the case of a General per- aquatic ecosystem consist of fine-
mit, such findings shall be prepared at grained mineral particles, usually
the time of issuance of that permit smaller than silt, and organic par-
rather than for each subsequent dis- ticles. Suspended particulates may
charge under the authority of that per- enter water bodies as a result of land
mit. runoff, flooding, vegetative and
266
planktonic breakdown, resuspension of content, physical and biological con-

bottom sediments, and man’s activities tent, dissolved gas levels, pH, and tem-
including dredging and filling. Particu- perature contribute to its life-sus-
lates may remain suspended in the taining capabilities.
water column for variable periods of (b) Possible loss of environmental
time as a result of such factors as agi- characteristics and values: The dis-
tation of the water mass, particulate charge of dredged or fill material can
specific gravity, particle shape, and change the chemistry and the physical
physical and chemical properties of characteristics of the receiving water
particle surfaces. at a disposal site through the introduc-
(b) Possible loss of environmental tion of chemical constituents in sus-
characteristics and values: The dis- pended or dissolved form. Changes in
charge of dredged or fill material can the clarity, color, odor, and taste of
result in greatly elevated levels of sus- water and the addition of contami-
pended particulates in the water col- nants can reduce or eliminate the suit-
umn for varying lengths of time. These ability of water bodies for populations
new levels may reduce light penetra- of aquatic organisms, and for human
tion and lower the rate of photosyn- consumption, recreation, and aes-
thesis and the primary productivity of thetics. The introduction of nutrients
an aquatic area if they last long or organic material to the water col-
enough. Sight-dependent species may umn as a result of the discharge can
suffer reduced feeding ability leading lead to a high biochemical oxygen de-
to limited growth and lowered resist- mand (BOD), which in turn can lead to
ance to disease if high levels of sus- reduced dissolved oxygen, thereby po-
pended particulates persist. The bio- tentially affecting the survival of
logical and the chemical content of the many aquatic organisms. Increases in
suspended material may react with the nutrients can favor one group of orga-
dissolved oxygen in the water, which nisms such as algae to the detriment of
can result in oxygen depletion. Toxic other more desirable types such as sub-
metals and organics, pathogens, and vi- merged aquatic vegetation, potentially
ruses absorbed or adsorbed to fine- causing adverse health effects, objec-
grained particulates in the material tionable tastes and odors, and other
may become biologically available to problems.
organisms either in the water column
or on the substrate. Significant in- § 230.23 Current patterns and water
creases in suspended particulate levels circulation.
create turbid plumes which are highly (a) Current patterns and water cir-
visible and aesthetically displeasing. culation are the physical movements of
The extent and persistence of these ad- water in the aquatic ecosystem. Cur-
verse impacts caused by discharges de- rents and circulation respond to nat-
pend upon the relative increase in sus- ural forces as modified by basin shape
pended particulates above the amount and cover, physical and chemical char-
occurring naturally, the duration of acteristics of water strata and masses,
the higher levels, the current patterns, and energy dissipating factors.
water level, and fluctuations present (b) Possible loss of environmental
when such discharges occur, the vol- characteristics and values: The dis-
ume, rate, and duration of the discharge of dredged or fill material can
charge, particulate deposition, and the modify current patterns and water cir-
seasonal timing of the discharge. culation by obstructing flow, changing
the direction or velocity of water flow,
§ 230.22 Water. changing the direction or velocity of
(a) Water is the part of the aquatic water flow and circulation, or other-
ecosystem in which organic and inor- wise changing the dimensions of a
ganic constituents are dissolved and water body. As a result, adverse
suspended. It constitutes part of the changes can occur in: Location, struc-
liquid phase and is contained by the ture, and dynamics of aquatic commu-
substrate. Water forms part of a dy- nities; shoreline and substrate erosion
namic aquatic life-supporting system. and depositIon rates; the deposition of
Water clarity, nutrients and chemical suspended particulates; the rate and
267
§ 230.24 40 CFR Ch. I (7–1–21 Edition)
extent of mixing of dissolved and sus- discharge operations in the upstream

pended components of the water body; regions can have equally adverse im-
and water stratification. pacts. A significant reduction in the
volume of fresh water moving into an
§ 230.24 Normal water fluctuations. estuary below that which is considered
(a) Normal water fluctuations in a normal can affect the location and type
natural aquatic system consist of of mixing thereby changing the char-
daily, seasonal, and annual tidal and acteristic salinity patterns. The result-
flood fluctuations in water level. Bio- ing changed circulation pattern can
logical and physical components of cause the upstream migration of the
such a system are either attuned to or salinity gradient displacing the
characterized by these periodic water maximim sedimentation zone. This mi-
fluctuations. gration may affect those organisms
(b) Possible loss of environmental that are adapted to freshwater environ-
characteristics and values: The dis- ments. It may also affect municipal
charge of dredged or fill material can water supplies.
alter the normal water-level fluctua- NOTE: Possible actions to minimize adverse
tion pattern of an area, resulting in impacts regarding site characteristics can be
prolonged periods of inundation, exag- found in subpart H.
gerated extremes of high and low
water, or a static, nonfluctuating Subpart D—Potential Impacts on
water level. Such water level modifica- Biological Characteristics of
tions may change salinity patterns, the Aquatic Ecosystem
alter erosion or sedimentation rates,
aggravate water temperature extremes, NOTE: The impacts described in this sub-
and upset the nutrient and dissolved part should be considered in making the fac-
tual determinations and the findings of com-
oxygen balance of the aquatic eco- pliance or non-compliance in subpart B.
system. In addition, these modifica-
tions can alter or destroy communities § 230.30 Threatened and endangered
and populations of aquatic animals and species.
vegetation, induce populations of nui- (a) An endangered species is a plant
sance organisms, modify habitat, re- or animal in danger of extinction
duce food supplies, restrict movement throughout all or a significant portion
of aquatic fauna, destroy spawning of its range. A threatened species is
areas, and change adjacent, upstream, one in danger of becoming an endan-
and downstream areas. gered species in the foreseeable future
throughout all or a significant portion
§ 230.25 Salinity gradients.
of its range. Listings of threatened and
(a) Salinity gradients form where endangered species as well as critical
salt water from the ocean meets and habitats are maintained by some indi-
mixes with fresh water from land. vidual States and by the U.S. Fish and
(b) Possible loss of environmental Wildlife Service of the Department of
characteristics and values: Obstruc- the Interior (codified annually at 50
tions which divert or restrict flow of CFR 17.11). The Department of Com-
either fresh or salt water may change merce has authority over some threat-
existing salinity gradients. For exam- ened and endangered marine mammals,
ple, partial blocking of the entrance to fish and reptiles.
an estuary or river mouth that signifi- (b) Possible loss of values: The major
cantly restricts the movement of the potential impacts on threatened or en-
salt water into and out of that area can dangered species from the discharge of
effectively lower the volume of salt dredged or fill material include:
water available for mixing within that (1) Covering or otherwise directly
estuary. The downstream migration of killing species;
the salinity gradient can occur, dis- (2) The impairment or destruction of
placing the maximum sedimentation habitat to which these species are lim-
zone and requiring salinity-dependent ited. Elements of the aquatic habitat
aquatic biota to adjust to the new con- which are particularly crucial to the
ditions, move to new locations if pos- continued survival of some threatened
sible, or perish. In the freshwater zone, or endangered species include adequate
268
good quality water, spawning and mat- sensitive to the discharge of material
uration areas, nesting areas, protective during periods of reproduction and
cover, adequate and reliable food sup- growth and development due primarily
ply, and resting areas for migratory to their limited mobility. They can be
species. Each of these elements can be rendered unfit for human consumption
adversely affected by changes in either by tainting, by production and accu-
the normal water conditions for clar- mulation of toxins, or by ingestion and
ity, chemical content, nutrient bal- retention of pathogenic organisms, vi-
ance, dissolved oxygen, pH, tempera- ruses, heavy metals or persistent syn-
ture, salinity, current patterns, cir- thetic organic chemicals. The dis-
culation and fluctuation, or the phys- charge of dredged or fill material can
ical removal of habitat; and
redirect, delay, or stop the reproduc-
(3) Facilitating incompatible activi-
tive and feeding movements of some
ties.
species of fish and crustacea, thus pre-
(c) Where consultation with the Sec-
retary of the Interior occurs under sec- venting their aggregation in accus-
tion 7 of the Endangered Species Act, tomed places such as spawning or nurs-
the conclusions of the Secretary con- ery grounds and potentially leading to
cerning the impact(s) of the discharge reduced populations. Reduction of de-
on threatened and endangered species trital feeding species or other rep-
and their habitat shall be considered resentatives of lower trophic levels can
final. impair the flow of energy from primary
consumers to higher trophic levels. The
§ 230.31 Fish, crustaceans, mollusks, reduction or potential elimination of
and other aquatic organisms in the food chain organism populations de-
food web.
creases the overall productivity and
(a) Aquatic organisms in the food nutrient export capability of the eco-
web include, but are not limited to, system.
finfish, crustaceans, mollusks, insects,
annelids, planktonic organisms, and § 230.32 Other wildlife.
the plants and animals on which they
(a) Wildlife associated with aquatic
feed and depend upon for their needs.
ecosystems are resident and transient
All forms and life stages of an orga-
nism, throughout its geographic range, mammals, birds, reptiles, and amphib-
are included in this category. ians.
(b) Possible loss of values: The dis- (b) Possible loss of values: The dis-
charge of dredged or fill material can charge of dredged or fill material can
variously affect populations of fish, result in the loss or change of breeding
crustaceans, mollusks and other food and nesting areas, escape cover, travel
web organisms through the release of corridors, and preferred food sources
contaminants which adversely affect for resident and transient wildlife spe-
adults, juveniles, larvae, or eggs, or re- cies associated with the aquatic eco-
sult in the establishment or prolifera- system. These adverse impacts upon
tion of an undesirable competitive spe- wildlife habitat may result from
cies of plant or animal at the expense changes in water levels, water flow and
of the desired resident species. Sus- circulation, salinity, chemical content,
pended particulates settling on at- and substrate characteristics and ele-
tached or buried eggs can smother the vation. Increased water turbidity can
eggs by limiting or sealing off their ex- adversely affect wildlife species which
posure to oxygenated water. Discharge rely upon sight to feed, and disrupt the
of dredged and fill material may result respiration and feeding of certain
in the debilitation or death of sed- aquatic wildlife and food chain orga-
entary organisms by smothering, expo- nisms. The availability of contami-
sure to chemical contaminants in dis-
nants from the discharge of dredged or
solved or suspended form, exposure to
fill material may lead to the bio-
high levels of suspended particulates,
accumulation of such contaminants in

reduction in food supply, or alteration
of the substrate upon which they are wildlife. Changes in such physical and
dependent. Mollusks are particularly chemical factors of the environment
269
§ 230.40 40 CFR Ch. I (7–1–21 Edition)
may favor the introduction of undesir- § 230.41 Wetlands.

able plant and animal species at the ex-
(a)(1) Wetlands consist of areas that
pense of resident species and commu-
are inundated or saturated by surface
nities. In some aquatic environments
or ground water at a frequency and du-
lowering plant and animal species di- ration sufficient to support, and that
versity may disrupt the normal func- under normal circumstances do sup-
tions of the ecosystem and lead to report, a prevalence of vegetation typi-
ductions in overall biological produc- cally adapted for life in saturated soil
tivity. conditions.
NOTE: Possible actions to minimize adverse (2) Where wetlands are adjacent to
impacts regarding characteristics of biologi- open water, they generally constitute
cal components of the aquatic ecosystem can the transition to upland. The margin
be found in subpart H. between wetland and open water can
best be established by specialists famil-
Subpart E—Potential Impacts on iar with the local environment, par-
Special Aquatic Sites ticularly where emergent vegetation
merges with submerged vegetation
NOTE: The impacts described in this sub- over a broad area in such places as the
part should be considered in making the fac- lateral margins of open water, head-
tual determinations and the findings of com- waters, rainwater catch basins, and
pliance or non-compliance in subpart B. The groundwater seeps. The landward mar-
definition of special aquatic sites is found in gin of wetlands also can best be identi-
§ 230.3(q–1). fied by specialists familiar with the
local environment when vegetation
§ 230.40 Sanctuaries and refuges.
from the two regions merges over a
(a) Sanctuaries and refuges consist of broad area.
areas designated under State and Fed- (3) Wetland vegetation consists of
eral laws or local ordinances to be plants that require saturated soils to
managed principally for the preserva- survive (obligate wetland plants) as
tion and use of fish and wildlife re- well as plants, including certain trees,
sources. that gain a competitive advantage over
(b) Possible loss of values: Sanc- others because they can tolerate pro-
tuaries and refuges may be affected by longed wet soil conditions and their
discharges of dredged or fill material competitors cannot. In addition to
which will: plant populations and communities,
(1) Disrupt the breeding, spawning, wetlands are delimited by hydrological
migratory movements or other critical and physical characteristics of the en-
life requirements of resident or tran- vironment. These characteristics
sient fish and wildlife resources; should be considered when information
about them is needed to supplement in-
(2) Create unplanned, easy and in-
formation available about vegetation,
compatible human access to remote
or where wetland vegetation has been
aquatic areas;
removed or is dormant.
(3) Create the need for frequent main-
(b) Possible loss of values: The dis-
tenance activity;
charge of dredged or fill material in
(4) Result in the establishment of un- wetlands is likely to damage or destroy
desirable competitive species of plants habitat and adversely affect the bio-
and animals; logical productivity of wetlands eco-
(5) Change the balance of water and systems by smothering, by dewatering,
land areas needed to provide cover, by permanently flooding, or by altering
food, and other fish and wildlife habi- substrate elevation or periodicity of
tat requirements in a way that modi- water movement. The addition of
fies sanctuary or refuge management dredged or fill material may destroy
practices; wetland vegetation or result in ad-
(6) Result in any of the other adverse vancement of succession to dry land
impacts discussed in subparts C and D species. It may reduce or eliminate nu-

as they relate to a particular sanc- trient exchange by a reduction of the
tuary or refuge. system’s productivity, or by altering
270
current patterns and velocities. Disrup- § 230.43 Vegetated shallows.

tion or elimination of the wetland sys-
(a) Vegetated shallows are perma-
tem can degrade water quality by ob-
nently inundated areas that under nor-
structing circulation patterns that
mal circumstances support commu-
flush large expanses of wetland sys-
tems, by interfering with the filtration nities of rooted aquatic vegetation,
function of wetlands, or by changing such as turtle grass and eelgrass in es-
the aquifer recharge capability of a tuarine or marine systems as well as a
wetland. Discharges can also change number of freshwater species in rivers
the wetland habitat value for fish and and lakes.
wildlife as discussed in subpart D. (b) Possible loss of values: The dis-
When disruptions in flow and circula- charge of dredged or fill material can
tion patterns occur, apparently minor smother vegetation and benthic orga-
loss of wetland acreage may result in nisms. It may also create unsuitable
major losses through secondary im- conditions for their continued vigor by:
pacts. Discharging fill material in wet- (1) Changing water circulation pat-
lands as part of municipal, industrial terns; (2) releasing nutrients that in-
or recreational development may mod- crease undesirable algal populations;
ify the capacity of wetlands to retain (3) releasing chemicals that adversely
and store floodwaters and to serve as a affect plants and animals; (4) increas-
buffer zone shielding upland areas from ing turbidity levels, thereby reducing
wave actions, storm damage and ero- light penetration and hence photosyn-
sion. thesis; and (5) changing the capacity of
a vegetated shallow to stabilize bottom
§ 230.42 Mud flats. materials and decrease channel
(a) Mud flats are broad flat areas shoaling. The discharge of dredged or
along the sea coast and in coastal riv- fill material may reduce the value of
ers to the head of tidal influence and in vegetated shallows as nesting, spawn-
inland lakes, ponds, and riverine sys- ing, nursery, cover, and forage areas,
tems. When mud flats are inundated, as well as their value in protecting
wind and wave action may resuspend shorelines from erosion and wave ac-
bottom sediments. Coastal mud flats tions. It may also encourage the
are exposed at extremely low tides and growth of nuisance vegetation.
inundated at high tides with the water
table at or near the surface of the sub- § 230.44 Coral reefs.
strate. The substrate of mud flats con-
(a) Coral reefs consist of the skeletal
tains organic material and particles
deposit, usually of calcareous or
smaller in size than sand. They are ei-
ther unvegetated or vegetated only by silicaceous materials, produced by the
algal mats. vital activities of anthozoan polyps or
(b) Possible loss of values: The dis- other invertebrate organisms present
charge of dredged or fill material can in growing portions of the reef.
cause changes in water circulation pat- (b) Possible loss of values: The dis-
terns which may permanently flood or charge of dredged or fill material can
dewater the mud flat or disrupt peri- adversely affect colonies of reef build-
odic inundation, resulting in an in- ing organisms by burying them, by re-
crease in the rate of erosion or accre- leasing contaminants such as hydro-
tion. Such changes can deplete or carbons into the water column, by re-
eliminate mud flat biota, foraging ducing light penetration through the
areas, and nursery areas. Changes in water, and by increasing the level of
inundation patterns can affect the suspended particulates. Coral orga-
chemical and biological exchange and nisms are extremely sensitive to even
decomposition process occurring on the slight reductions in light penetration
mud flat and change the deposition of or increases in suspended particulates.
suspended material affecting the pro- These adverse effects will cause a loss
ductivity of the area. Changes may re- of productive colonies which in turn
duce the mud flat’s capacity to dis- provide habitat for many species of
sipate storm surge runoff. highly specialized aquatic organisms.
271
§ 230.45 40 CFR Ch. I (7–1–21 Edition)
§ 230.45 Riffle and pool complexes. determinations and the findings of compli-
ance or non-compliance in subpart B.
(a) Steep gradient sections of streams
are sometimes characterized by riffle § 230.50 Municipal and private water
and pool complexes. Such stream sec- supplies.
tions are recognizable by their hydrau- (a) Municipal and private water sup-
lic characteristics. The rapid move- plies consist of surface water or ground
ment of water over a coarse substrate water which is directed to the intake of
in riffles results in a rough flow, a tur- a municipal or private water supply
bulent surface, and high dissolved oxy- system.
gen levels in the water. Pools are deep- (b) Possible loss of values: Discharges
er areas associated with riffles. Pools can affect the quality of water supplies
are characterized by a slower stream with respect to color, taste, odor,
velocity, a steaming flow, a smooth chemical content and suspended partic-
surface, and a finer substrate. Riffle ulate concentration, in such a way as
and pool complexes are particularly to reduce the fitness of the water for
valuable habitat for fish and wildlife. consumption. Water can be rendered
(b) Possible loss of values: Discharge unpalatable or unhealthy by the addi-
of dredged or fill material can elimi- tion of suspended particulates, viruses
nate riffle and pool areas by displace- and pathogenic organisms, and dis-
ment, hydrologic modification, or sedi- solved materials. The expense of re-
mentation. Activities which affect rif- moving such substances before the
fle and pool areas and especially riffle/ water is delivered for consumption can
pool ratios, may reduce the aeration be high. Discharges may also affect the
and filtration capabilities at the dis- quantity of water available for munic-
charge site and downstream, may re- ipal and private water supplies. In ad-
duce stream habitat diversity, and may dition, certain commonly used water
retard repopulation of the disposal site treatment chemicals have the poten-
and downstream waters through sedi- tial for combining with some suspended
mentation and the creation of unsuit- or dissolved substances from dredged or
able habitat. The discharge of dredged fill material to form other products
or fill material which alters stream hy- that can have a toxic effect on
drology may cause scouring or sedi- consumers.
mentation of riffles and pools. Sedi-
mentation induced through § 230.51 Recreational and commercial
hydrological modification or as a di- fisheries.
rect result of the deposition of uncon- (a) Recreational and commercial
solidated dredged or fill material may fisheries consist of harvestable fish,
clog riffle and pool areas, destroy habi- crustaceans, shellfish, and other aquat-
tats, and create anaerobic conditions. ic organisms used by man.
Eliminating pools and meanders by the (b) Possible loss of values: The dis-
discharge of dredged or fill material charge of dredged or fill materials can
can reduce water holding capacity of affect the suitability of recreational
streams and cause rapid runoff from a and commercial fishing grounds as
watershed. Rapid runoff can deliver habitat for populations of consumable
large quantities of flood water in a aquatic organisms. Discharges can re-
short time to downstream areas result- sult in the chemical contamination of
ing in the destruction of natural habi- recreational or commercial fisheries.
tat, high property loss, and the need They may also interfere with the re-
for further hydraulic modification. productive success of recreational and
NOTE: Possible actions to minimize adverse commercially important aquatic spe-
impacts on site or material characteristics cies through disruption of migration
can be found in subpart H. and spawning areas. The introduction
of pollutants at critical times in their
Subpart F—Potential Effects on life cycle may directly reduce popu-
Human Use Characteristics lations of commercially important
aquatic organisms or indirectly reduce

NOTE: The effects described in this subpart them by reducing organisms upon
should be considered in making the factual which they depend for food. Any of
272
these impacts can be of short duration levels may reduce the value of an
or prolonged, depending upon the phys- aquatic area to private property own-
ical and chemical impacts of the dis- ers.
charge and the biological availability
of contaminants to aquatic organisms. § 230.54 Parks, national and historical
monuments, national seashores,
§ 230.52 Water-related recreation. wilderness areas, research sites,
(a) Water-related recreation encom- and similar preserves.
passes activities undertaken for amuse- (a) These preserves consist of areas
ment and relaxation. Activities encom- designated under Federal and State
pass two broad categories of use: con- laws or local ordinances to be managed
sumptive, e.g., harvesting resources by for their aesthetic, educational, histor-
hunting and fishing; and non- ical, recreational, or scientific value.
comsumptive, e.g. canoeing and sight- (b) Possible loss of values: The dis-
seeing. charge of dredged or fill material into
(b) Possible loss of values: One of the such areas may modify the aesthetic,
more important direct impacts of educational, historical, recreational
dredged or fill disposal is to impair or and/or scientific qualities thereby re-
destroy the resources which support ducing or eliminating the uses for
recreation activities. The disposal of which such sites are set aside and
dredged or fill material may adversely managed.
modify or destroy water use for recre-
ation by changing turbidity, suspended NOTE: Possible actions to minimize adverse
impacts regarding site or material charac-
particulates, temperature, dissolved
teristics can be found in subpart H.
oxygen, dissolved materials, toxic ma-
terials, pathogenic organisms, quality
of habitat, and the aesthetic qualities Subpart G—Evaluation and Testing
of sight, taste, odor, and color.
§ 230.60 General evaluation of dredged
§ 230.53 Aesthetics. or fill material.
(a) Aesthetics associated with the The purpose of these evaluation pro-
aquatic ecosystem consist of the per- cedures and the chemical and biologi-
ception of beauty by one or a combina- cal testing sequence outlined in § 230.61
tion of the senses of sight, hearing, is to provide information to reach the
touch, and smell. Aesthetics of aquatic determinations required by § 230.11.
ecosystems apply to the quality of life Where the results of prior evaluations,
enjoyed by the general public and prop- chemical and biological tests, sci-
erty owners. entific research, and experience can
(b) Possible loss of values: The dis- provide information helpful in making
charge of dredged or fill material can a determination, these should be used.
mar the beauty of natural aquatic eco- Such prior results may make new test-
systems by degrading water quality, ing unnecessary. The information used
creating distracting disposal sites, in- shall be documented. Where the same
ducing inappropriate development, en- information applies to more than one
couraging unplanned and incompatible determination, it may be documented
human access, and by destroying vital once and referenced in later deter-
elements that contribute to the minations.
compositional harmony or unity, vis- (a) If the evaluation under paragraph
ual distinctiveness, or diversity of an (b) indicates the dredged or fill mate-
area. The discharge of dredged or fill rial is not a carrier of contaminants,
material can adversely affect the par- then the required determinations per-
ticular features, traits, or characteris- taining to the presence and effects of
tics of an aquatic area which make it contaminants can be made without
valuable to property owners. Activities testing. Dredged or fill material is
which degrade water quality, disrupt most likely to be free from chemical,
natural substrate and vegetational biological, or other pollutants where it
characteristics, deny access to or visi- is composed primarily of sand, gravel,

bility of the resource, or result in or other naturally occurring inert ma-
changes in odor, air quality, or noise terial. Dredged material so composed is
273
§ 230.61 40 CFR Ch. I (7–1–21 Edition)
generally found in areas of high cur- (6) Any possibility of the presence of
rent or wave energy such as streams substantial natural deposits of min-
with large bed loads or coastal areas erals or other substances which could
with shifting bars and channels. How- be released to the aquatic environment
ever, when such material is discolored in harmful quantities by man-induced
or contains other indications that con- discharge activities.
taminants may be present, further in- (c) To reach the determinations in
quiry should be made. § 230.11 involving potential effects of
(b) The extraction site shall be exam- the discharge on the characteristics of
ined in order to assess whether it is the disposal site, the narrative guid-
sufficiently removed from sources of ance in subparts C through F shall be
pollution to provide reasonable assur- used along with the general evaluation
ance that the proposed discharge mate- procedure in § 230.60 and, if necessary,
rial is not a carrier of contaminants. the chemical and biological testing se-
Factors to be considered include but quence in § 230.61. Where the discharge
are not limited to: site is adjacent to the extraction site
(1) Potential routes of contaminants and subject to the same sources of con-
or contaminated sediments to the ex- taminants, and materials at the two
traction site, based on hydrographic or sites are substantially similar, the fact
other maps, aerial photography, or that the material to be discharged may
other materials that show water- be a carrier of contaminants is not
courses, surface relief, proximity to likely to result in degradation of the
tidal movement, private and public disposal site. In such circumstances,
roads, location of buildings, municipal when dissolved material and suspended
and industrial areas, and agricultural particulates can be controlled to pre-
or forest lands. vent carrying pollutants to less con-
taminated areas, testing will not be re-
(2) Pertinent results from tests pre-
quired.
viously carried out on the material at
(d) Even if the § 230.60(b) evaluation
the extraction site, or carried out on
(previous tests, the presence of pol-
similar material for other permitted
luting industries and information
projects in the vicinity. Materials shall
about their discharge or runoff into
be considered similar if the sources of
waters of the U.S., bioinventories, etc.)
contamination, the physical configura-
leads to the conclusion that there is a
tion of the sites and the sediment com-
high probability that the material pro-
position of the materials are com-
posed for discharge is a carrier of con-
parable, in light of water circulation
taminants, testing may not be nec-
and stratification, sediment accumula- essary if constraints are available to
tion and general sediment characteris- reduce contamination to acceptable
tics. Tests from other sites may be re- levels within the disposal site and to
lied on only if no changes have oc- prevent contaminants from being
curred at the extraction sites to render transported beyond the boundaries of
the results irrelevant. the disposal site, if such constraints
(3) Any potential for significant in- are acceptable to the permitting au-
troduction of persistent pesticides from thority and the Regional Adminis-
land runoff or percolation; trator, and if the potential discharger
(4) Any records of spills or disposal of is willing and able to implement such
petroleum products or substances des- constraints. However, even if tests are
ignated as hazardous under section 311 not performed, the permitting author-
of the Clean Water Act (See 40 CFR ity must still determine the probable
part 116); impact of the operation on the receiv-
(5) Information in Federal, State and ing aquatic ecosystem. Any decision
local records indicating significant in- not to test must be explained in the de-
troduction of pollutants from indus- terminations made under § 230.11.
tries, municipalities, or other sources,
including types and amounts of waste § 230.61 Chemical, biological, and
materials discharged along the poten- physical evaluation and testing.

tial routes of contaminants to the ex- NOTE: The Agency is today proposing re-
traction site; and vised testing guidelines. The evaluation and
274
testing procedures in this section are based may be a carrier of contaminants, a
on the 1975 section 404(b)(1) interim final water leachate test is appropriate.
Guidelines and shall remain in effect until (ii) Major constituents to be analyzed
the revised testing guidelines are published
as final regulations.
in the elutriate are those deemed crit-
(a) No single test or approach can be ical by the permitting authority, after
applied in all cases to evaluate the ef- evaluating and considering any com-
fects of proposed discharges of dredged ments received from the Regional Ad-
or fill materials. This section provides ministrator, and considering results of
some guidance in determining which the evaluation in § 230.60. Elutriate
test and/or evaluation procedures are concentrations should be compared to
appropriate in a given case. Interim concentrations of the same constitu-
guidance to applicants concerning the ents in water from the disposal site.
applicability of specific approaches or Results should be evaluated in light of
procedures will be furnished by the per- the volume and rate of the intended
mitting authority. discharge, the type of discharge, the
(b) Chemical-biological interactive ef- hydrodynamic regime at the disposal
fects. The principal concerns of dis- site, and other information relevant to
charge of dredged or fill material that the impact on water quality. The per-
contain contaminants are the potential mitting authority should consider the
effects on the water column and on mixing zone in evaluating water col-
communities of aquatic organisms. umn effects. The permitting authority
(1) Evaluation of chemical-biological may specify bioassays when such pro-
interactive effects. Dredged or fill mate- cedures will be of value.
rial may be excluded from the evalua- (3) Effects on benthos. The permitting
tion procedures specified in paragraphs authority may use an appropriate
(b) (2) and (3) of this section if it is de- benthic bioassay (including bioaccumu-
termined, on the basis of the evalua- lation tests) when such procedures will
tion in § 230.60, that the likelihood of be of value in assessing ecological ef-
contamination by contaminants is ac- fects and in establishing discharge con-
ceptably low, unless the permitting au- ditions.
thority, after evaluating and consid- (c) Procedure for comparison of sites.
ering any comments received from the (1) When an inventory of the total
Regional Administrator, determines concentration of contaminants would
that these procedures are necessary. be of value in comparing sediment at
The Regional Administrator may re- the dredging site with sediment at the
quire, on a case-by-case basis, testing disposal site, the permitting authority
approaches and procedures by stating may require a sediment chemical anal-
what additional information is needed ysis. Markedly different concentra-
through further analyses and how the tions of contaminants between the ex-
results of the analyses will be of value cavation and disposal sites may aid in
in evaluating potential environmental making an environmental assessment
effects. of the proposed disposal operation.
If the General Evaluation indicates the Such differences should be interpreted
presence of a sufficiently large number in terms of the potential for harm as
of chemicals to render impractical the supported by any pertinent scientific
identification of all contaminants by literature.
chemical testing, information may be (2) When an analysis of biological
obtained from bioassays in lieu of community structure will be of value
chemical tests. to assess the potential for adverse envi-
(2) Water column effects. (i) Sediments ronmental impact at the proposed dis-
normally contain constituents that posal site, a comparison of the biologi-
exist in various chemical forms and in cal characteristics between the exca-
various concentrations in several loca- vation and disposal sites may be re-
tions within the sediment. An elutriate quired by the permitting authority. Bi-
test may be used to predict the effect ological indicator species may be use-
on water quality due to release of con- ful in evaluating the existing degree of
taminants from the sediment to the stress at both sites. Sensitive species
water column. However, in the case of representing community components
fill material originating on land which colonizing various substrate types
275
§ 230.70 40 CFR Ch. I (7–1–21 Edition)
within the sites should be identified as (b) Designing the discharge to avoid a
possible bioassay organisms if tests for disruption of periodic water inundation
toxicity are required. Community patterns;
structure studies should be performed (c) Selecting a disposal site that has
only when they will be of value in de- been used previously for dredged ma-
termining discharge conditions. This is terial discharge;
particularly applicable to large quan- (d) Selecting a disposal site at which
tities of dredged material known to the substrate is composed of material
contain adverse quantities of toxic ma- similar to that being discharged, such
terials. Community studies should in- as discharging sand on sand or mud on
clude benthic organisms such as mud;
microbiota and harvestable shellfish (e) Selecting the disposal site, the
and finfish. Abundance, diversity, and discharge point, and the method of
distribution should be documented and discharge to minimize the extent of
correlated with substrate type and any plume;
other appropriate physical and chem- (f) Designing the discharge of dredged
ical environmental characteristics. or fill material to minimize or prevent
(d) Physical tests and evaluation. the creation of standing bodies of
The effect of a discharge of dredged or water in areas of normally fluctuating
fill material on physical substrate water levels, and minimize or prevent
characteristics at the disposal site, as the drainage of areas subject to such
well as on the water circulation, fluc- fluctuations.
tuation, salinity, and suspended partic-
§ 230.71 Actions concerning the mate-
ulates content there, is important in rial to be discharged.
making factual determinations in
§ 230.11. Where information on such ef- The effects of a discharge can be
fects is not otherwise available to minimized by treatment of, or limita-
make these factual determinations, the tions on the material itself, such as:
permitting authority shall require ap- (a) Disposal of dredged material in
propriate physical tests and evalua- such a manner that physiochemical
tions as are justified and deemed nec- conditions are maintained and the po-
essary. Such tests may include sieve tency and availability of pollutants are
tests, settleability tests, compaction reduced.
tests, mixing zone and suspended par- (b) Limiting the solid, liquid, and
ticulate plume determinations, and gaseous components of material to be
site assessments of water flow, circula- discharged at a particular site;
tion, and salinity characteristics. (c) Adding treatment substances to
the discharge material;
(d) Utilizing chemical flocculants to
Subpart H—Actions To Minimize enhance the deposition of suspended
Adverse Effects particulates in diked disposal areas.
NOTE: There are many actions which can § 230.72 Actions controlling the mate-
be undertaken in response to § 203.10(d) to rial after discharge.
minimize the adverse effects of discharges of
dredged or fill material. Some of these, The effects of the dredged or fill ma-
grouped by type of activity, are listed in this terial after discharge may be con-
subpart. Additional criteria for compensa- trolled by:
tion measures are provided in subpart J of (a) Selecting discharge methods and
this part. disposal sites where the potential for
erosion, slumping or leaching of mate-
§ 230.70 Actions concerning the loca- rials into the surrounding aquatic eco-
tion of the discharge.
system will be reduced. These sites or
The effects of the discharge can be methods include, but are not limited
minimized by the choice of the disposal to:
site. Some of the ways to accomplish (1) Using containment levees, sedi-
this are by: ment basins, and cover crops to reduce
(a) Locating and confining the dis- erosion;

charge to minimize smothering of (2) Using lined containment areas to
organisms; reduce leaching where leaching of
276
chemical constituents from the dis- § 230.74 Actions related to technology.

charged material is expected to be a
Discharge technology should be
problem;
adapted to the needs of each site. In de-
(b) Capping in-place contaminated termining whether the discharge oper-
material with clean material or selec- ation sufficiently minimizes adverse
tively discharging the most contami- environmental impacts, the applicant
nated material first to be capped with should consider:
the remaining material; (a) Using appropriate equipment or
(c) Maintaining and containing dis- machinery, including protective de-
charged material properly to prevent vices, and the use of such equipment or
point and nonpoint sources of pollu- machinery in activities related to the
tion; discharge of dredged or fill material;
(d) Timing the discharge to minimize (b) Employing appropriate mainte-
impact, for instance during periods of nance and operation on equipment or
unusual high water flows, wind, wave, machinery, including adequate train-
and tidal actions. ing, staffing, and working procedures;
(c) Using machinery and techniques
§ 230.73 Actions affecting the method that are especially designed to reduce
of dispersion. damage to wetlands. This may include
The effects of a discharge can be machines equipped with devices that
minimized by the manner in which it is scatter rather than mound excavated
dispersed, such as: materials, machines with specially de-
(a) Where environmentally desirable, signed wheels or tracks, and the use of
distributing the dredged material wide- mats under heavy machines to reduce
ly in a thin layer at the disposal site to wetland surface compaction and
maintain natural substrate contours rutting;
and elevation; (d) Designing access roads and chan-
(b) Orienting a dredged or fill mate- nel spanning structures using culverts,
rial mound to minimize undesirable ob- open channels, and diversions that will
struction to the water current or cir- pass both low and high water flows, ac-
culation pattern, and utilizing natural commodate fluctuating water levels,
bottom contours to minimize the size and maintain circulation and faunal
of the mound; movement;
(c) Using silt screens or other appro- (e) Employing appropriate machinery
and methods of transport of the mate-
priate methods to confine suspended
rial for discharge.
particulate/turbidity to a small area
where settling or removal can occur; § 230.75 Actions affecting plant and
(d) Making use of currents and cir- animal populations.
culation patterns to mix, disperse and
Minimization of adverse effects on
dilute the discharge;
populations of plants and animals can
(e) Minimizing water column tur- be achieved by:
bidity by using a submerged diffuser
(a) Avoiding changes in water cur-
system. A similar effect can be accom- rent and circulation patterns which
plished by submerging pipeline dis- would interfere with the movement of
charges or otherwise releasing mate- animals;
rials near the bottom; (b) Selecting sites or managing dis-
(f) Selecting sites or managing discharges to prevent or avoid creating
charges to confine and minimize the habitat conducive to the development
release of suspended particulates to of undesirable predators or species
give decreased turbidity levels and to which have a competitive edge eco-
maintain light penetration for orga- logically over indigenous plants or
nisms; animals;
(g) Setting limitations on the (c) Avoiding sites having unique
amount of material to be discharged habitat or other value, including habi-

per unit of time or volume of receiving tat of threatened or endangered
water. species;
277
§ 230.76 40 CFR Ch. I (7–1–21 Edition)
(d) Using planning and construction § 230.77 Other actions.

practices to institute habitat develop-
(a) In the case of fills, controlling
ment and restoration to produce a new
or modified environmental state of runoff and other discharges from ac-
higher ecological value by displace- tivities to be conducted on the fill;
ment of some or all of the existing en- (b) In the case of dams, designing
vironmental characteristics. Habitat water releases to accommodate the
development and restoration tech- needs of fish and wildlife;
niques can be used to minimize adverse (c) In dredging projects funded by
impacts and to compensate for de- Federal agencies other than the Corps
stroyed habitat. Additional criteria for of Engineers, maintain desired water
compensation measures are provided in quality of the return discharge through
subpart J of this part. Use techniques agreement with the Federal funding
that have been demonstrated to be ef- authority on scientifically defensible
fective in circumstances similar to pollutant concentration levels in addi-
those under consideration wherever tion to any applicable water quality
possible. Where proposed development standards;
and restoration techniques have not (d) When a significant ecological
yet advanced to the pilot demonstra- change in the aquatic environment is
tion stage, initiate their use on a small
proposed by the discharge of dredged or
scale to allow corrective action if un-
fill material, the permitting authority
anticipated adverse impacts occur;
should consider the ecosystem that
(e) Timing discharge to avoid spawn-
ing or migration seasons and other bio- will be lost as well as the environ-
logically critical time periods; mental benefits of the new system.
(f) Avoiding the destruction of rem-
nant natural sites within areas already Subpart I—Planning To Shorten
affected by development. Permit Processing Time
FR 19687, Apr. 10, 2008] § 230.80 Advanced identification of dis-
posal areas.
§ 230.76 Actions affecting human use. (a) Consistent with these Guidelines,
Minimization of adverse effects on EPA and the permitting authority, on
human use potential may be achieved their own initiative or at the request of
by: any other party and after consultation
(a) Selecting discharge sites and fol- with any affected State that is not the
lowing discharge procedures to prevent permitting authority, may identify
or minimize any potential damage to sites which will be considered as:
the aesthetically pleasing features of (1) Possible future disposal sites, in-
the aquatic site (e.g. viewscapes), par- cluding existing disposal sites and non-
ticularly with respect to water quality; sensitive areas; or
(b) Selecting disposal sites which are (2) Areas generally unsuitable for dis-
not valuable as natural aquatic areas;
posal site specification;
(c) Timing the discharge to avoid the
seasons or periods when human rec- (b) The identification of any area as
reational activity associated with the a possible future disposal site should
aquatic site is most important; not be deemed to constitute a permit
(d) Following discharge procedures for the discharge of dredged or fill ma-
which avoid or minimize the disturb- terial within such area or a specifica-
ance of aesthetic features of an aquatic tion of a disposal site. The identifica-
site or ecosystem; tion of areas that generally will not be
(e) Selecting sites that will not be available for disposal site specification
detrimental or increase incompatible should not be deemed as prohibiting
human activity, or require the need for applications for permits to discharge
frequent dredge or fill maintenance ac- dredged or fill material in such areas.
tivity in remote fish and wildlife areas; Either type of identification con-
(f) Locating the disposal site outside stitutes information to facilitate indi-
of the vicinity of a public water supply vidual or General permit application
intake. and processing.
278
(c) An appropriate public notice of tions at 33 CFR part 320 and this part,
the proposed identification of such respectively.
areas shall be issued; (2) This subpart has been jointly de-
(d) To provide the basis for advanced veloped by the Secretary of the Army,
identification of disposal areas, and acting through the Chief of Engineers,
areas unsuitable for disposal, EPA and and the Administrator of the Environ-
the permitting authority shall consider mental Protection Agency. From time
the likelihood that use of the area in to time guidance on interpreting and
question for dredged or fill material implementing this subpart may be pre-
disposal will comply with these Guide- pared jointly by EPA and the Corps at
lines. To facilitate this analysis, EPA the national or regional level. No
and the permitting authority should modifications to the basic application,
review available water resources man- meaning, or intent of this subpart will
agement data including data available be made without further joint rule-
from the public, other Federal and
making by the Secretary of the Army,
State agencies, and information from
acting through the Chief of Engineers
approved Coastal Zone Management
and the Administrator of the Environ-
programs and River Basin Plans;
mental Protection Agency, pursuant to
(e) The permitting authority should
the Administrative Procedure Act (5
maintain a public record of the identi-
U.S.C. 551 et seq.).
fied areas and a written statement of
the basis for identification. (b) Applicability. This subpart does
not alter the circumstances under
which compensatory mitigation is re-
Subpart J—Compensatory Mitiga- quired or the definition of ‘‘waters of
tion for Losses of Aquatic Re- the United States,’’ which is provided
sources at § 230.3(s). Use of resources as com-
pensatory mitigation that are not oth-
SOURCE: 73 FR 19687, Apr. 10, 2008, unless erwise subject to regulation under sec-
otherwise noted. tion 404 of the Clean Water Act does
not in and of itself make them subject
§ 230.91 Purpose and general consider- to such regulation.
ations.
(c) Sequencing. (1) Nothing in this sec-
(a) Purpose. (1) The purpose of this tion affects the requirement that all
subpart is to establish standards and DA permits subject to section 404 of
criteria for the use of all types of com- the Clean Water Act comply with ap-
pensatory mitigation, including on-site plicable provisions of this part.
and off-site permittee-responsible miti- (2) Pursuant to these requirements,
gation, mitigation banks, and in-lieu
the district engineer will issue an indi-
fee mitigation to offset unavoidable
vidual section 404 permit only upon a
impacts to waters of the United States
determination that the proposed dis-
authorized through the issuance of per-
mits by the U.S. Army Corps of Engi- charge complies with applicable provi-
neers (Corps) pursuant to section 404 of sions of 40 CFR part 230, including
the Clean Water Act (33 U.S.C. 1344). those which require the permit appli-
This subpart implements section 314(b) cant to take all appropriate and prac-
of the 2004 National Defense Authoriza- ticable steps to avoid and minimize ad-
tion Act (Pub. L. 108–136), which directs verse impacts to waters of the United
that the standards and criteria shall, States. Practicable means available
to the maximum extent practicable, and capable of being done after taking
maximize available credits and oppor- into consideration cost, existing tech-
tunities for mitigation, provide for re- nology, and logistics in light of overall
gional variations in wetland condi- project purposes. Compensatory miti-
tions, functions, and values, and apply gation for unavoidable impacts may be
equivalent standards and criteria to required to ensure that an activity re-
each type of compensatory mitigation. quiring a section 404 permit complies
This subpart is intended to further with the Section 404(b)(1) Guidelines.

clarify mitigation requirements estab- (3) Compensatory mitigation for un-
lished under the Corps and EPA regula- avoidable impacts may be required to
279
§ 230.92 40 CFR Ch. I (7–1–21 Edition)
ensure that an activity requiring a sec- that anticipates likely challenges asso-
tion 404 permit complies with the Sec- ciated with compensatory mitigation
tion 404(b)(1) Guidelines. During the projects and provides for the imple-
404(b)(1) Guidelines compliance anal- mentation of actions to address those
ysis, the district engineer may deter- challenges, as well as unforeseen
mine that a DA permit for the proposed changes to those projects. It requires
activity cannot be issued because of consideration of the risk, uncertainty,
the lack of appropriate and practicable and dynamic nature of compensatory
compensatory mitigation options. mitigation projects and guides modi-
(d) Accounting for regional variations. fication of those projects to optimize
Where appropriate, district engineers performance. It includes the selection
shall account for regional characteris- of appropriate measures that will en-
tics of aquatic resource types, func- sure that the aquatic resource func-
tions and services when determining
tions are provided and involves anal-
performance standards and monitoring
ysis of monitoring results to identify
requirements for compensatory mitiga-
potential problems of a compensatory
tion projects.
(e) Relationship to other guidance docu- mitigation project and the identifica-
ments. (1) This subpart applies instead tion and implementation of measures
of the ‘‘Federal Guidance for the Estab- to rectify those problems.
lishment, Use, and Operation of Mitiga- Advance credits means any credits of
tion Banks,’’ which was issued on No- an approved in-lieu fee program that
vember 28, 1995, the ‘‘Federal Guidance are available for sale prior to being ful-
on the Use of In-Lieu Fee Arrange- filled in accordance with an approved
ments for Compensatory Mitigation mitigation project plan. Advance cred-
Under Section 404 of the Clean Water it sales require an approved in-lieu fee
Act and Section 10 of the Rivers and program instrument that meets all ap-
Harbors Act,’’ which was issued on No- plicable requirements including a spe-
vember 7, 2000, and Regulatory Guid- cific allocation of advance credits, by
ance Letter 02–02, ‘‘Guidance on Com- service area where applicable. The in-
pensatory Mitigation Projects for strument must also contain a schedule
Aquatic Resource Impacts Under the for fulfillment of advance credit sales.
Corps Regulatory Program Pursuant to Buffer means an upland, wetland,
Section 404 of the Clean Water Act and and/or riparian area that protects and/
Section 10 of the Rivers and Harbors or enhances aquatic resource functions
Act of 1899’’ which was issued on De- associated with wetlands, rivers,
cember 24, 2002. These guidance docu- streams, lakes, marine, and estuarine
ments are no longer to be used as com- systems from disturbances associated
pensatory mitigation policy in the with adjacent land uses.
Corps Regulatory Program.
Compensatory mitigation means the
(2) In addition, this subpart also ap-
restoration (re-establishment or reha-
plies instead of the provisions relating
to the amount, type, and location of bilitation), establishment (creation),
compensatory mitigation projects, in- enhancement, and/or in certain cir-
cluding the use of preservation, in the cumstances preservation of aquatic re-
February 6, 1990, Memorandum of sources for the purposes of offsetting
Agreement (MOA) between the Depart- unavoidable adverse impacts which re-
ment of the Army and the Environ- main after all appropriate and prac-
mental Protection Agency on the De- ticable avoidance and minimization
termination of Mitigation Under the has been achieved.
Clean Water Act Section 404(b)(1) Compensatory mitigation project means
Guidelines. All other provisions of this compensatory mitigation implemented
MOA remain in effect. by the permittee as a requirement of a
DA permit (i.e., permittee-responsible
§ 230.92 Definitions. mitigation), or by a mitigation bank or
For the purposes of this subpart, the an in-lieu fee program.
following terms are defined: Condition means the relative ability

Adaptive management means the de- of an aquatic resource to support and
velopment of a management strategy maintain a community of organisms
280
having a species composition, diver- sor for sale or transfer to permit appli-
sity, and functional organization com- cants.
parable to reference aquatic resources Functional capacity means the degree
in the region. to which an area of aquatic resource
Credit means a unit of measure (e.g., performs a specific function.
a functional or areal measure or other Functions means the physical, chem-
suitable metric) representing the ac- ical, and biological processes that
crual or attainment of aquatic func- occur in ecosystems.
tions at a compensatory mitigation Impact means adverse effect.
site. The measure of aquatic functions In-kind means a resource of a similar
is based on the resources restored, es- structural and functional type to the
tablished, enhanced, or preserved. impacted resource.
DA means Department of the Army. In-lieu fee program means a program
Days means calendar days. involving the restoration, establish-
ment, enhancement, and/or preserva-
Debit means a unit of measure (e.g., a
tion of aquatic resources through funds
functional or areal measure or other
paid to a governmental or non-profit
suitable metric) representing the loss
natural resources management entity
of aquatic functions at an impact or
to satisfy compensatory mitigation re-
project site. The measure of aquatic
quirements for DA permits. Similar to
functions is based on the resources im-
a mitigation bank, an in-lieu fee pro-
pacted by the authorized activity.
gram sells compensatory mitigation
Enhancement means the manipulation credits to permittees whose obligation
of the physical, chemical, or biological to provide compensatory mitigation is
characteristics of an aquatic resource then transferred to the in-lieu program
to heighten, intensify, or improve a sponsor. However, the rules governing
specific aquatic resource function(s). the operation and use of in-lieu fee pro-
Enhancement results in the gain of se- grams are somewhat different from the
lected aquatic resource function(s), but rules governing operation and use of
may also lead to a decline in other mitigation banks. The operation and
aquatic resource function(s). Enhance- use of an in-lieu fee program are gov-
ment does not result in a gain in erned by an in-lieu fee program instru-
aquatic resource area. ment.
Establishment (creation) means the In-lieu fee program instrument means
manipulation of the physical, chem- the legal document for the establish-
ical, or biological characteristics ment, operation, and use of an in-lieu
present to develop an aquatic resource fee program.
that did not previously exist at an up- Instrument means mitigation banking
land site. Establishment results in a instrument or in-lieu fee program in-
gain in aquatic resource area and func- strument.
tions. Interagency Review Team (IRT) means
Fulfillment of advance credit sales of an an interagency group of federal, tribal,
in-lieu fee program means application of state, and/or local regulatory and re-
credits released in accordance with a source agency representatives that re-
credit release schedule in an approved views documentation for, and advises
mitigation project plan to satisfy the the district engineer on, the establish-
mitigation requirements represented ment and management of a mitigation
by the advance credits. Only after any bank or an in-lieu fee program.
advance credit sales within a service Mitigation bank means a site, or suite
area have been fulfilled through the ap- of sites, where resources (e.g., wet-
plication of released credits from an in- lands, streams, riparian areas) are re-
lieu fee project (in accordance with the stored, established, enhanced, and/or
credit release schedule for an approved preserved for the purpose of providing
mitigation project plan), may addi- compensatory mitigation for impacts
tional released credits from that authorized by DA permits. In general, a
project be sold or transferred to per- mitigation bank sells compensatory
mittees. When advance credits are ful- mitigation credits to permittees whose
filled, an equal number of new advance obligation to provide compensatory
credits is restored to the program spon- mitigation is then transferred to the
281
§ 230.92 40 CFR Ch. I (7–1–21 Edition)
mitigation bank sponsor. The oper- result of natural processes and anthro-
ation and use of a mitigation bank are pogenic disturbances.
governed by a mitigation banking in- Rehabilitation means the manipula-
strument. tion of the physical, chemical, or bio-
Mitigation banking instrument means logical characteristics of a site with
the legal document for the establish- the goal of repairing natural/historic
ment, operation, and use of a mitiga- functions to a degraded aquatic re-
tion bank. source. Rehabilitation results in a gain
Off-site means an area that is neither in aquatic resource function, but does
located on the same parcel of land as not result in a gain in aquatic resource
the impact site, nor on a parcel of land area.
contiguous to the parcel containing the Release of credits means a determina-
impact site. tion by the district engineer, in con-
On-site means an area located on the sultation with the IRT, that credits as-
same parcel of land as the impact site, sociated with an approved mitigation
or on a parcel of land contiguous to the plan are available for sale or transfer,
impact site. or in the case of an in-lieu fee program,
for fulfillment of advance credit sales.
Out-of-kind means a resource of a dif-
A proportion of projected credits for a
ferent structural and functional type
specific mitigation bank or in-lieu fee
from the impacted resource.
project may be released upon approval
Performance standards are observable of the mitigation plan, with additional
or measurable physical (including credits released as milestones specified
hydrological), chemical and/or biologi- in the credit release schedule are
cal attributes that are used to deter- achieved.
mine if a compensatory mitigation Restoration means the manipulation
project meets its objectives. of the physical, chemical, or biological
Permittee-responsible mitigation means characteristics of a site with the goal
an aquatic resource restoration, estab- of returning natural/historic functions
lishment, enhancement, and/or preser- to a former or degraded aquatic re-
vation activity undertaken by the per- source. For the purpose of tracking net
mittee (or an authorized agent or con- gains in aquatic resource area, restora-
tractor) to provide compensatory miti- tion is divided into two categories: re-
gation for which the permittee retains establishment and rehabilitation.
full responsibility. Riparian areas are lands adjacent to
Preservation means the removal of a streams, rivers, lakes, and estuarine-
threat to, or preventing the decline of, marine shorelines. Riparian areas pro-
aquatic resources by an action in or vide a variety of ecological functions
near those aquatic resources. This and services and help improve or main-
term includes activities commonly as- tain local water quality.
sociated with the protection and main- Service area means the geographic
tenance of aquatic resources through area within which impacts can be miti-
the implementation of appropriate gated at a specific mitigation bank or
legal and physical mechanisms. Preser- an in-lieu fee program, as designated in
vation does not result in a gain of its instrument.
aquatic resource area or functions. Services mean the benefits that
Re-establishment means the manipula- human populations receive from func-
tion of the physical, chemical, or bio- tions that occur in ecosystems.
logical characteristics of a site with Sponsor means any public or private
the goal of returning natural/historic entity responsible for establishing, and
functions to a former aquatic resource. in most circumstances, operating a
Re-establishment results in rebuilding mitigation bank or in-lieu fee program.
a former aquatic resource and results Standard permit means a standard, in-
in a gain in aquatic resource area and dividual permit issued under the au-
functions. thority of section 404 of the Clean
Reference aquatic resources are a set of Water Act.
aquatic resources that represent the Temporal loss is the time lag between
full range of variability exhibited by a the loss of aquatic resource functions
regional class of aquatic resources as a caused by the permitted impacts and
282
the replacement of aquatic resource § 230.93 General compensatory mitiga-

functions at the compensatory mitigation requirements.
tion site. Higher compensation ratios (a) General considerations. (1) The fun-
may be required to compensate for damental objective of compensatory
temporal loss. When the compensatory mitigation is to offset environmental
mitigation project is initiated prior to, losses resulting from unavoidable im-
or concurrent with, the permitted impacts to waters of the United States
pacts, the district engineer may deter- authorized by DA permits. The district
mine that compensation for temporal engineer must determine the compen-
loss is not necessary, unless the re- satory mitigation to be required in a
source has a long development time. DA permit, based on what is prac-
Watershed means a land area that ticable and capable of compensating
drains to a common waterway, such as for the aquatic resource functions that
a stream, lake, estuary, wetland, or ul- will be lost as a result of the permitted
timately the ocean. activity. When evaluating compen-
Watershed approach means an analyt- satory mitigation options, the district
ical process for making compensatory engineer will consider what would be
mitigation decisions that support the environmentally preferable. In making
sustainability or improvement of this determination, the district engi-
aquatic resources in a watershed. It in- neer must assess the likelihood for eco-
volves consideration of watershed logical success and sustainability, the
needs, and how locations and types of location of the compensation site rel-
compensatory mitigation projects ad- ative to the impact site and their sig-
nificance within the watershed, and the
dress those needs. A landscape perspec-
costs of the compensatory mitigation
tive is used to identify the types and
project. In many cases, the environ-
locations of compensatory mitigation
mentally preferable compensatory
projects that will benefit the watershed
mitigation may be provided through
and offset losses of aquatic resource mitigation banks or in-lieu fee pro-
functions and services caused by activi- grams because they usually involve
ties authorized by DA permits. The wa- consolidating compensatory mitigation
tershed approach may involve consider- projects where ecologically appro-
ation of landscape scale, historic and priate, consolidating resources, pro-
potential aquatic resource conditions, viding financial planning and scientific
past and projected aquatic resource im- expertise (which often is not practical
pacts in the watershed, and terrestrial for permittee-responsible compen-
connections between aquatic resources satory mitigation projects), reducing
when determining compensatory miti- temporal losses of functions, and re-
gation requirements for DA permits. ducing uncertainty over project suc-
Watershed plan means a plan devel- cess. Compensatory mitigation require-
oped by federal, tribal, state, and/or ments must be commensurate with the
local government agencies or appro- amount and type of impact that is as-
priate non-governmental organiza- sociated with a particular DA permit.
tions, in consultation with relevant Permit applicants are responsible for
stakeholders, for the specific goal of proposing an appropriate compensatory
aquatic resource restoration, establish- mitigation option to offset unavoidable
ment, enhancement, and preservation. impacts.
A watershed plan addresses aquatic re- (2) Compensatory mitigation may be
source conditions in the watershed, performed using the methods of res-
multiple stakeholder interests, and toration, enhancement, establishment,
land uses. Watershed plans may also and in certain circumstances preserva-
identify priority sites for aquatic re- tion. Restoration should generally be
source restoration and protection. Ex- the first option considered because the
amples of watershed plans include spe- likelihood of success is greater and the
impacts to potentially ecologically im-
cial area management plans, advance

portant uplands are reduced compared
identification programs, and wetland
to establishment, and the potential
management plans. gains in terms of aquatic resource
283
§ 230.93 40 CFR Ch. I (7–1–21 Edition)
functions are greater, compared to en- number and resource type of credits
hancement and preservation. available, the permittee’s compen-
(3) Compensatory mitigation projects satory mitigation requirements may be
may be sited on public or private lands. met by securing those credits from the
Credits for compensatory mitigation sponsor. Since an approved instrument
projects on public land must be based (including an approved mitigation plan
solely on aquatic resource functions and appropriate real estate and finan-
provided by the compensatory mitiga- cial assurances) for a mitigation bank
tion project, over and above those pro- is required to be in place before its
vided by public programs already credits can begin to be used to com-
planned or in place. All compensatory pensate for authorized impacts, use of
mitigation projects must comply with a mitigation bank can help reduce risk
the standards in this part, if they are and uncertainty, as well as temporal
to be used to provide compensatory loss of resource functions and services.
mitigation for activities authorized by Mitigation bank credits are not re-
DA permits, regardless of whether they leased for debiting until specific mile-
are sited on public or private lands and stones associated with the mitigation
whether the sponsor is a governmental bank site’s protection and development
or private entity. are achieved, thus use of mitigation
(b) Type and location of compensatory bank credits can also help reduce risk
mitigation. (1) When considering options that mitigation will not be fully suc-
for successfully providing the required cessful. Mitigation banks typically in-
compensatory mitigation, the district volve larger, more ecologically valu-
engineer shall consider the type and lo- able parcels, and more rigorous sci-
cation options in the order presented in entific and technical analysis, planning
paragraphs (b)(2) through (b)(6) of this and implementation than permittee-re-
section. In general, the required com- sponsible mitigation. Also, develop-
pensatory mitigation should be located ment of a mitigation bank requires site
within the same watershed as the im- identification in advance, project-spe-
pact site, and should be located where cific planning, and significant invest-
it is most likely to successfully replace ment of financial resources that is
lost functions and services, taking into often not practicable for many in-lieu
account such watershed scale features fee programs. For these reasons, the
as aquatic habitat diversity, habitat district engineer should give preference
connectivity, relationships to hydro- to the use of mitigation bank credits
logic sources (including the avail- when these considerations are applica-
ability of water rights), trends in land ble. However, these same consider-
use, ecological benefits, and compat- ations may also be used to override
ibility with adjacent land uses. When this preference, where appropriate, as,
compensating for impacts to marine for example, where an in-lieu fee pro-
resources, the location of the compen- gram has released credits available
satory mitigation site should be chosen from a specific approved in-lieu fee
to replace lost functions and services project, or a permittee-responsible
within the same marine ecological sys- project will restore an outstanding re-
tem (e.g., reef complex, littoral drift source based on rigorous scientific and
cell). Compensation for impacts to technical analysis.
aquatic resources in coastal watersheds (3) In-lieu fee program credits. Where
(watersheds that include a tidal water permitted impacts are located within
body) should also be located in a coast- the service area of an approved in-lieu
al watershed where practicable. Com- fee program, and the sponsor has the
pensatory mitigation projects should appropriate number and resource type
not be located where they will increase of credits available, the permittee’s
risks to aviation by attracting wildlife compensatory mitigation requirements
to areas where aircraft-wildlife strikes may be met by securing those credits
may occur (e.g., near airports). from the sponsor. Where permitted im-
(2) Mitigation bank credits. When per- pacts are not located in the service
mitted impacts are located within the area of an approved mitigation bank,
service area of an approved mitigation or the approved mitigation bank does
bank, and the bank has the appropriate not have the appropriate number and
284
resource type of credits available to (6) Permittee-responsible mitigation

offset those impacts, in-lieu fee mitiga- through off-site and/or out-of-kind mitiga-
tion, if available, is generally pref- tion. If, after considering opportunities
erable to permittee-responsible mitiga- for on-site, in-kind compensatory miti-
tion. In-lieu fee projects typically in- gation as provided in paragraph (b)(5)
volve larger, more ecologically valu- of this section, the district engineer de-
able parcels, and more rigorous sci- termines that these compensatory
entific and technical analysis, planning mitigation opportunities are not prac-
and implementation than permittee-re- ticable, are unlikely to compensate for
sponsible mitigation. They also devote the permitted impacts, or will be in-
significant resources to identifying and compatible with the proposed project,
addressing high-priority resource needs and an alternative, practicable off-site
on a watershed scale, as reflected in and/or out-of-kind mitigation oppor-
their compensation planning frame- tunity is identified that has a greater
work. For these reasons, the district likelihood of offsetting the permitted
engineer should give preference to in- impacts or is environmentally pref-
lieu fee program credits over per- erable to on-site or in-kind mitigation,
mittee-responsible mitigation, where the district engineer should require
these considerations are applicable. that this alternative compensatory
However, as with the preference for mitigation be provided.
mitigation bank credits, these same (c) Watershed approach to compen-
considerations may be used to override satory mitigation. (1) The district engi-
this preference where appropriate. Ad- neer must use a watershed approach to
ditionally, in cases where permittee-re- establish compensatory mitigation re-
sponsible mitigation is likely to suc- quirements in DA permits to the ex-
cessfully meet performance standards tent appropriate and practicable.
before advance credits secured from an Where a watershed plan is available,
in-lieu fee program are fulfilled, the the district engineer will determine
district engineer should also give con- whether the plan is appropriate for use
sideration to this factor in deciding be- in the watershed approach for compen-
tween in-lieu fee mitigation and per- satory mitigation. In cases where the
mittee-responsible mitigation. district engineer determines that an
(4) Permittee-responsible mitigation appropriate watershed plan is avail-
under a watershed approach. Where per- able, the watershed approach should be
mitted impacts are not in the service based on that plan. Where no such plan
area of an approved mitigation bank or is available, the watershed approach
in-lieu fee program that has the appro- should be based on information pro-
priate number and resource type of vided by the project sponsor or avail-
credits available, permittee-responsible able from other sources. The ultimate
mitigation is the only option. Where goal of a watershed approach is to
practicable and likely to be successful maintain and improve the quality and
and sustainable, the resource type and quantity of aquatic resources within
location for the required permittee-re- watersheds through strategic selection
sponsible compensatory mitigation of compensatory mitigation sites.
should be determined using the prin- (2) Considerations. (i) A watershed ap-
ciples of a watershed approach as out- proach to compensatory mitigation
lined in paragraph (c) of this section. considers the importance of landscape
(5) Permittee-responsible mitigation position and resource type of compen-
through on-site and in-kind mitigation. In satory mitigation projects for the sus-
cases where a watershed approach is tainability of aquatic resource func-
not practicable, the district engineer tions within the watershed. Such an
should consider opportunities to offset approach considers how the types and
anticipated aquatic resource impacts locations of compensatory mitigation
by requiring on-site and in-kind com- projects will provide the desired aquat-
pensatory mitigation. The district en- ic resource functions, and will continue
gineer must also consider the practica- to function over time in a changing
bility of on-site compensatory mitiga- landscape. It also considers the habitat

tion and its compatibility with the pro- requirements of important species,
posed project. habitat loss or conversion trends,
285
§ 230.93 40 CFR Ch. I (7–1–21 Edition)
sources of watershed impairment, and possible, to enhance the usefulness of

current development trends, as well as the approach in determining compen-
the requirements of other regulatory satory mitigation requirements.
and non-regulatory programs that af- (v) A watershed approach is not ap-
fect the watershed, such as storm propriate in areas where watershed
water management or habitat con- boundaries do not exist, such as marine
servation programs. It includes the areas. In such cases, an appropriate
protection and maintenance of terres- spatial scale should be used to replace
trial resources, such as non-wetland ri- lost functions and services within the
parian areas and uplands, when those same ecological system (e.g., reef com-
resources contribute to or improve the plex, littoral drift cell).
overall ecological functioning of aquat- (3) Information Needs. (i) In the ab-
ic resources in the watershed. Compen- sence of a watershed plan determined
satory mitigation requirements deter- by the district engineer under para-
mined through the watershed approach graph (c)(1) of this section to be appro-
should not focus exclusively on specific priate for use in the watershed ap-
functions (e.g., water quality or habi- proach, the district engineer will use a
tat for certain species), but should pro- watershed approach based on analysis
vide, where practicable, the suite of of information regarding watershed
functions typically provided by the af- conditions and needs, including poten-
fected aquatic resource. tial sites for aquatic resource restora-
(ii) Locational factors (e.g., hydrol- tion activities and priorities for aquat-
ogy, surrounding land use) are impor- ic resource restoration and preserva-
tant to the success of compensatory tion. Such information includes: Cur-
mitigation for impacted habitat func- rent trends in habitat loss or conver-
tions and may lead to siting of such sion; cumulative impacts of past devel-
mitigation away from the project area. opment activities, current develop-
However, consideration should also be
ment trends, the presence and needs of
given to functions and services (e.g.,
sensitive species; site conditions that
water quality, flood control, shoreline
favor or hinder the success of compen-
protection) that will likely need to be
satory mitigation projects; and chronic
addressed at or near the areas im-
environmental problems such as flood-
pacted by the permitted impacts.
ing or poor water quality.
(iii) A watershed approach may in-
clude on-site compensatory mitigation, (ii) This information may be avail-
off-site compensatory mitigation (in- able from sources such as wetland
cluding mitigation banks or in-lieu fee maps; soil surveys; U.S. Geological
programs), or a combination of on-site Survey topographic and hydrologic
and off-site compensatory mitigation. maps; aerial photographs; information
(iv) A watershed approach to compen- on rare, endangered and threatened
satory mitigation should include, to species and critical habitat; local eco-
the extent practicable, inventories of logical reports or studies; and other in-
historic and existing aquatic resources, formation sources that could be used to
including identification of degraded identify locations for suitable compen-
aquatic resources, and identification of satory mitigation projects in the wa-
immediate and long-term aquatic re- tershed.
source needs within watersheds that (iii) The level of information and
can be met through permittee-respon- analysis needed to support a watershed
sible mitigation projects, mitigation approach must be commensurate with
banks, or in-lieu fee programs. Plan- the scope and scale of the proposed im-
ning efforts should identify and pacts requiring a DA permit, as well as
prioritize aquatic resource restoration, the functions lost as a result of those
establishment, and enhancement ac- impacts.
tivities, and preservation of existing (4) Watershed Scale. The size of water-
aquatic resources that are important shed addressed using a watershed ap-
for maintaining or improving ecologi- proach should not be larger than is ap-
cal functions of the watershed. The propriate to ensure that the aquatic re-
identification and prioritization of resources provided through compensation
source needs should be as specific as activities will effectively compensate
286
for adverse environmental impacts re- aquatic resource functions and serv-
sulting from activities authorized by ices.
DA permits. The district engineer (3) Applicants should propose com-
should consider relevant environ- pensation sites adjacent to existing
mental factors and appropriate locally- aquatic resources or where aquatic re-
developed standards and criteria when sources previously existed.
determining the appropriate watershed (e) Mitigation type. (1) In general, in-
scale in guiding compensation activi- kind mitigation is preferable to out-of-
ties. kind mitigation because it is most
(d) Site selection. (1) The compen- likely to compensate for the functions
satory mitigation project site must be and services lost at the impact site.
ecologically suitable for providing the For example, tidal wetland compen-
desired aquatic resource functions. In satory mitigation projects are most
determining the ecological suitability likely to compensate for unavoidable
of the compensatory mitigation project impacts to tidal wetlands, while peren-
site, the district engineer must con- nial stream compensatory mitigation
sider, to the extent practicable, the fol- projects are most likely to compensate
lowing factors: for unavoidable impacts to perennial
(i) Hydrological conditions, soil char- streams. Thus, except as provided in
acteristics, and other physical and paragraph (e)(2) of this section, the re-
chemical characteristics; quired compensatory mitigation shall
be of a similar type to the affected
(ii) Watershed-scale features, such as
aquatic resource.
aquatic habitat diversity, habitat
(2) If the district engineer deter-
connectivity, and other landscape scale
mines, using the watershed approach in
functions;
accordance with paragraph (c) of this
(iii) The size and location of the com- section that out-of-kind compensatory
pensatory mitigation site relative to mitigation will serve the aquatic re-
hydrologic sources (including the source needs of the watershed, the dis-
availability of water rights) and other trict engineer may authorize the use of
ecological features; such out-of-kind compensatory mitiga-
(iv) Compatibility with adjacent land tion. The basis for authorization of
uses and watershed management plans; out-of-kind compensatory mitigation
(v) Reasonably foreseeable effects the must be documented in the administra-
compensatory mitigation project will tive record for the permit action.
have on ecologically important aquatic (3) For difficult-to-replace resources
or terrestrial resources (e.g., shallow (e.g., bogs, fens, springs, streams, At-
sub-tidal habitat, mature forests), cul- lantic white cedar swamps) if further
tural sites, or habitat for federally- or avoidance and minimization is not
state-listed threatened and endangered practicable, the required compensation
species; and should be provided, if practicable,
(vi) Other relevant factors including, through in-kind rehabilitation, en-
but not limited to, development trends, hancement, or preservation since there
anticipated land use changes, habitat is greater certainty that these methods
status and trends, the relative loca- of compensation will successfully off-
tions of the impact and mitigation set permitted impacts.
sites in the stream network, local or (f) Amount of compensatory mitigation.
regional goals for the restoration or (1) If the district engineer determines
protection of particular habitat types that compensatory mitigation is nec-
or functions (e.g., re-establishment of essary to offset unavoidable impacts to
habitat corridors or habitat for species aquatic resources, the amount of re-
of concern), water quality goals, flood- quired compensatory mitigation must
plain management goals, and the rel- be, to the extent practicable, sufficient
ative potential for chemical contami- to replace lost aquatic resource func-
nation of the aquatic resources. tions. In cases where appropriate func-
(2) District engineers may require on- tional or condition assessment meth-
site, off-site, or a combination of on- ods or other suitable metrics are avail-
site and off-site compensatory mitiga- able, these methods should be used
tion to replace permitted losses of where practicable to determine how
287
§ 230.93 40 CFR Ch. I (7–1–21 Edition)
much compensatory mitigation is re- cal sustainability of the watershed. In

quired. If a functional or condition as- determining the contribution of those
sessment or other suitable metric is resources to the ecological sustain-
not used, a minimum one-to-one acre- ability of the watershed, the district
age or linear foot compensation ratio engineer must use appropriate quan-
must be used. titative assessment tools, where avail-
(2) The district engineer must require able;
a mitigation ratio greater than one-to- (iii) Preservation is determined by
one where necessary to account for the the district engineer to be appropriate
method of compensatory mitigation and practicable;
(e.g., preservation), the likelihood of (iv) The resources are under threat of
success, differences between the func- destruction or adverse modifications;
tions lost at the impact site and the and
functions expected to be produced by (v) The preserved site will be perma-
the compensatory mitigation project, nently protected through an appro-
temporal losses of aquatic resource priate real estate or other legal instru-
functions, the difficulty of restoring or ment (e.g., easement, title transfer to
establishing the desired aquatic re- state resource agency or land trust).
source type and functions, and/or the
(2) Where preservation is used to pro-
distance between the affected aquatic
vide compensatory mitigation, to the
resource and the compensation site.
extent appropriate and practicable the
The rationale for the required replace-
preservation shall be done in conjunc-
ment ratio must be documented in the
tion with aquatic resource restoration,
administrative record for the permit
action. establishment, and/or enhancement ac-
(3) If an in-lieu fee program will be tivities. This requirement may be
used to provide the required compen- waived by the district engineer where
satory mitigation, and the appropriate preservation has been identified as a
number and resource type of released high priority using a watershed ap-
credits are not available, the district proach described in paragraph (c) of
engineer must require sufficient com- this section, but compensation ratios
pensation to account for the risk and shall be higher.
uncertainty associated with in-lieu fee (i) Buffers. District engineers may re-
projects that have not been imple- quire the restoration, establishment,
mented before the permitted impacts enhancement, and preservation, as well
have occurred. as the maintenance, of riparian areas
(g) Use of mitigation banks and in-lieu and/or buffers around aquatic resources
fee programs. Mitigation banks and in- where necessary to ensure the long-
lieu fee programs may be used to com- term viability of those resources. Buff-
pensate for impacts to aquatic re- ers may also provide habitat or cor-
sources authorized by general permits ridors necessary for the ecological
and individual permits, including after- functioning of aquatic resources. If
the-fact permits, in accordance with buffers are required by the district en-
the preference hierarchy in paragraph gineer as part of the compensatory
(b) of this section. Mitigation banks mitigation project, compensatory miti-
and in-lieu fee programs may also be gation credit will be provided for those
used to satisfy requirements arising buffers.
out of an enforcement action, such as (j) Relationship to other federal, tribal,
supplemental environmental projects. state, and local programs. (1) Compen-
(h) Preservation. (1) Preservation may satory mitigation projects for DA per-
be used to provide compensatory miti- mits may also be used to satisfy the
gation for activities authorized by DA environmental requirements of other
permits when all the following criteria programs, such as tribal, state, or local
are met: wetlands regulatory programs, other
(i) The resources to be preserved pro- federal programs such as the Surface
vide important physical, chemical, or Mining Control and Reclamation Act,
biological functions for the watershed; Corps civil works projects, and Depart-
(ii) The resources to be preserved ment of Defense military construction
contribute significantly to the ecologi- projects, consistent with the terms and
288
requirements of these programs and (ii) Incorporate, by reference, the

subject to the following considerations: final mitigation plan approved by the
(i) The compensatory mitigation district engineer;
project must include appropriate com- (iii) State the objectives, perform-
pensation required by the DA permit ance standards, and monitoring re-
for unavoidable impacts to aquatic required for the compensatory mitiga-
sources authorized by that permit. tion project, unless they are provided
(ii) Under no circumstances may the in the approved final mitigation plan;
same credits be used to provide mitiga- and
tion for more than one permitted activ- (iv) Describe any required financial
ity. However, where appropriate, com- assurances or long-term management
pensatory mitigation projects, includ-
provisions for the compensatory miti-
ing mitigation banks and in-lieu fee
gation project, unless they are speci-
projects, may be designed to holis-
fied in the approved final mitigation
tically address requirements under
multiple programs and authorities for plan.
the same activity. (3) For a general permit activity that
(2) Except for projects undertaken by requires permittee-responsible compen-
federal agencies, or where federal fund- satory mitigation, the special condi-
ing is specifically authorized to provide tions must describe the compensatory
compensatory mitigation, federally- mitigation proposal, which may be ei-
funded aquatic resource restoration or ther conceptual or detailed. The gen-
conservation projects undertaken for eral permit verification must also in-
purposes other than compensatory clude a special condition that states
mitigation, such as the Wetlands Re- that the permittee cannot commence
serve Program, Conservation Reserve work in waters of the United States
Program, and Partners for Wildlife until the district engineer approves the
Program activities, cannot be used for final mitigation plan, unless the dis-
the purpose of generating compen- trict engineer determines that such a
satory mitigation credits for activities special condition is not practicable and
authorized by DA permits. However, not necessary to ensure timely comple-
compensatory mitigation credits may tion of the required compensatory
be generated by activities undertaken mitigation. To the extent appropriate
in conjunction with, but supplemental and practicable, special conditions of
to, such programs in order to maximize the general permit verification should
the overall ecological benefits of the also address the requirements of para-
restoration or conservation project. graph (k)(2) of this section.
(3) Compensatory mitigation projects (4) If a mitigation bank or in-lieu fee
may also be used to provide compen-
program is used to provide the required
satory mitigation under the Endan-
compensatory mitigation, the special
gered Species Act or for Habitat Con-
conditions must indicate whether a
servation Plans, as long as they com-
ply with the requirements of paragraph mitigation bank or in-lieu fee program
(j)(1) of this section. will be used, and specify the number
(k) Permit conditions. (1) The compen- and resource type of credits the per-
satory mitigation requirements for a mittee is required to secure. In the
DA permit, including the amount and case of an individual permit, the spe-
type of compensatory mitigation, must cial condition must also identify the
be clearly stated in the special condi- specific mitigation bank or in-lieu fee
tions of the individual permit or gen- program that will be used. For general
eral permit verification (see 33 CFR permit verifications, the special condi-
325.4 and 330.6(a)). The special conditions may either identify the specific
tions must be enforceable. mitigation bank or in-lieu fee program,
(2) For an individual permit that re- or state that the specific mitigation
quires permittee-responsible mitiga- bank or in-lieu fee program used to
tion, the special conditions must: provide the required compensatory
(i) Identify the party responsible for mitigation must be approved by the
providing the compensatory mitiga- district engineer before the credits are
tion; secured.
289
§ 230.93 40 CFR Ch. I (7–1–21 Edition)
(l) Party responsible for compensatory and practicable, additional compen-

mitigation. (1) For permittee-respon- satory mitigation to offset temporal
sible mitigation, the special conditions losses of aquatic functions that will re-
of the DA permit must clearly indicate sult from the permitted activity.
the party or parties responsible for the (n) Financial assurances. (1) The dis-
implementation, performance, and trict engineer shall require sufficient
long-term management of the compen- financial assurances to ensure a high
satory mitigation project. level of confidence that the compen-
(2) For mitigation banks and in-lieu satory mitigation project will be suc-
fee programs, the instrument must cessfully completed, in accordance
clearly indicate the party or parties re- with applicable performance standards.
sponsible for the implementation, per- In cases where an alternate mechanism
formance, and long-term management is available to ensure a high level of
of the compensatory mitigation confidence that the compensatory
project(s). The instrument must also mitigation will be provided and main-
contain a provision expressing the tained (e.g., a formal, documented
sponsor’s agreement to assume respon- commitment from a government agen-
sibility for a permittee’s compensatory cy or public authority) the district en-
mitigation requirements, once that gineer may determine that financial
permittee has secured the appropriate assurances are not necessary for that
number and resource type of credits compensatory mitigation project.
from the sponsor and the district engi- (2) The amount of the required finan-
neer has received the documentation cial assurances must be determined by
described in paragraph (l)(3) of this sec- the district engineer, in consultation
tion. with the project sponsor, and must be
(3) If use of a mitigation bank or in- based on the size and complexity of the
lieu fee program is approved by the dis- compensatory mitigation project, the
trict engineer to provide part or all of degree of completion of the project at
the required compensatory mitigation the time of project approval, the likeli-
for a DA permit, the permittee retains hood of success, the past performance
responsibility for providing the com- of the project sponsor, and any other
pensatory mitigation until the appro- factors the district engineer deems ap-
priate number and resource type of propriate. Financial assurances may be
credits have been secured from a spon- in the form of performance bonds, es-
sor and the district engineer has re- crow accounts, casualty insurance, let-
ceived documentation that confirms ters of credit, legislative appropria-
that the sponsor has accepted the re- tions for government sponsored
sponsibility for providing the required projects, or other appropriate instru-
compensatory mitigation. This documents, subject to the approval of the
mentation may consist of a letter or district engineer. The rationale for de-
form signed by the sponsor, with the termining the amount of the required
permit number and a statement indi- financial assurances must be docu-
cating the number and resource type of mented in the administrative record
credits that have been secured from the for either the DA permit or the instru-
sponsor. Copies of this documentation ment. In determining the assurance
will be retained in the administrative amount, the district engineer shall
records for both the permit and the in- consider the cost of providing replace-
strument. If the sponsor fails to pro- ment mitigation, including costs for
vide the required compensatory miti- land acquisition, planning and engi-
gation, the district engineer may pur- neering, legal fees, mobilization, con-
sue measures against the sponsor to struction, and monitoring.
ensure compliance. (3) If financial assurances are re-
(m) Timing. Implementation of the quired, the DA permit must include a
compensatory mitigation project shall special condition requiring the finan-
be, to the maximum extent prac- cial assurances to be in place prior to
ticable, in advance of or concurrent commencing the permitted activity.
with the activity causing the author- (4) Financial assurances shall be
ized impacts. The district engineer phased out once the compensatory
shall require, to the extent appropriate mitigation project has been determined
290
by the district engineer to be success- (b) Public review and comment. (1) For
ful in accordance with its performance an activity that requires a standard DA
standards. The DA permit or instru- permit pursuant to section 404 of the
ment must clearly specify the condi- Clean Water Act, the public notice for
tions under which the financial assur- the proposed activity must contain a
ances are to be released to the per- statement explaining how impacts as-
mittee, sponsor, and/or other financial sociated with the proposed activity are
assurance provider, including, as ap- to be avoided, minimized, and com-
propriate, linkage to achievement of pensated for. This explanation shall ad-
performance standards, adaptive man- dress, to the extent that such informa-
agement, or compliance with special tion is provided in the mitigation
conditions. statement required by 33 CFR
(5) A financial assurance must be in a 325.1(d)(7), the proposed avoidance and
form that ensures that the district en- minimization and the amount, type,
gineer will receive notification at least and location of any proposed compen-
120 days in advance of any termination satory mitigation, including any out-
or revocation. For third-party assur- of-kind compensation, or indicate an
ance providers, this may take the form intention to use an approved mitiga-
of a contractual requirement for the tion bank or in-lieu fee program. The
assurance provider to notify the dis- level of detail provided in the public
trict engineer at least 120 days before notice must be commensurate with the
the assurance is revoked or termi- scope and scale of the impacts. The no-
nated. tice shall not include information that
(6) Financial assurances shall be pay- the district engineer and the permittee
able at the direction of the district en- believe should be kept confidential for
gineer to his designee or to a standby business purposes, such as the exact lo-
trust agreement. When a standby trust cation of a proposed mitigation site
is used (e.g., with performance bonds or
that has not yet been secured. The per-
letters of credit) all amounts paid by
mittee must clearly identify any infor-
the financial assurance provider shall
mation being claimed as confidential
be deposited directly into the standby
in the mitigation statement when sub-
trust fund for distribution by the trust-
mitted. In such cases, the notice must
ee in accordance with the district engi-
still provide enough information to en-
neer’s instructions.
able the public to provide meaningful
(o) Compliance with applicable law.
comment on the proposed mitigation.
The compensatory mitigation project
must comply with all applicable fed- (2) For individual permits, district
eral, state, and local laws. The DA per- engineers must consider any timely
mit, mitigation banking instrument, or comments and recommendations from
in-lieu fee program instrument must other federal agencies; tribal, state, or
not require participation by the Corps local governments; and the public.
or any other federal agency in project (3) For activities authorized by let-
management, including receipt or man- ters of permission or general permits,
agement of financial assurances or the review and approval process for
long-term financing mechanisms, ex- compensatory mitigation proposals and
cept as determined by the Corps or plans must be conducted in accordance
other agency to be consistent with its with the terms and conditions of those
statutory authority, mission, and pri- permits and applicable regulations in-
orities. cluding the applicable provisions of
this part.
§ 230.94 Planning and documentation. (c) Mitigation plan. (1) Preparation and
(a) Pre-application consultations. Po- Approval. (i) For individual permits,
tential applicants for standard permits the permittee must prepare a draft
are encouraged to participate in pre- mitigation plan and submit it to the
application meetings with the Corps district engineer for review. After ad-
and appropriate agencies to discuss po- dressing any comments provided by the
tential mitigation requirements and district engineer, the permittee must
information needs. prepare a final mitigation plan, which
291
§ 230.94 40 CFR Ch. I (7–1–21 Edition)
must be approved by the district engi- gent upon approval by the district en-
neer prior to issuing the individual per- gineer).
mit. The approved final mitigation (iii) Mitigation banks and in-lieu fee
plan must be incorporated into the in- programs must prepare a mitigation
dividual permit by reference. The final plan including the items in paragraphs
mitigation plan must include the items (c)(2) through (c)(14) of this section for
described in paragraphs (c)(2) through each separate compensatory mitiga-
(c)(14) of this section, but the level of tion project site. For mitigation banks
detail of the mitigation plan should be and in-lieu fee programs, the prepara-
commensurate with the scale and scope tion and approval process for mitiga-
of the impacts. As an alternative, the tion plans is described in § 230.98.
district engineer may determine that it (2) Objectives. A description of the re-
would be more appropriate to address source type(s) and amount(s) that will
any of the items described in para- be provided, the method of compensa-
graphs (c)(2) through (c)(14) of this section (i.e., restoration, establishment,
tion as permit conditions, instead of enhancement, and/or preservation), and
components of a compensatory mitiga- the manner in which the resource func-
tion plan. For permittees who intend tions of the compensatory mitigation
to fulfill their compensatory mitiga- project will address the needs of the
tion obligations by securing credits watershed, ecoregion, physiographic
from approved mitigation banks or in- province, or other geographic area of
lieu fee programs, their mitigation interest.
plans need include only the items de- (3) Site selection. A description of the
scribed in paragraphs (c)(5) and (c)(6) of factors considered during the site se-
this section, and the name of the spe- lection process. This should include
cific mitigation bank or in-lieu fee pro- consideration of watershed needs, on-
gram to be used. site alternatives where applicable, and
(ii) For general permits, if compen- the practicability of accomplishing
satory mitigation is required, the dis- ecologically self-sustaining aquatic re-
trict engineer may approve a concep- source restoration, establishment, en-
tual or detailed compensatory mitiga- hancement, and/or preservation at the
tion plan to meet required time frames compensatory mitigation project site.
for general permit verifications, but a (See § 230.93(d).)
final mitigation plan incorporating the (4) Site protection instrument. A de-
elements in paragraphs (c)(2) through scription of the legal arrangements and
(c)(14) of this section, at a level of de- instrument, including site ownership,
tail commensurate with the scale and that will be used to ensure the long-
scope of the impacts, must be approved term protection of the compensatory
by the district engineer before the per- mitigation project site (see § 230.97(a)).
mittee commences work in waters of (5) Baseline information. A description
the United States. As an alternative, of the ecological characteristics of the
the district engineer may determine proposed compensatory mitigation
that it would be more appropriate to project site and, in the case of an appli-
address any of the items described in cation for a DA permit, the impact
paragraphs (c)(2) through (c)(14) of this site. This may include descriptions of
section as permit conditions, instead of historic and existing plant commu-
components of a compensatory mitiga- nities, historic and existing hydrology,
tion plan. For permittees who intend soil conditions, a map showing the lo-
to fulfill their compensatory mitiga- cations of the impact and mitigation
tion obligations by securing credits site(s) or the geographic coordinates
from approved mitigation banks or infor those site(s), and other site charac-
lieu fee programs, their mitigation teristics appropriate to the type of re-
plans need include only the items de- source proposed as compensation. The
scribed in paragraphs (c)(5) and (c)(6) of baseline information should also in-
this section, and either the name of the clude a delineation of waters of the
specific mitigation bank or in-lieu fee United States on the proposed compen-
program to be used or a statement in- satory mitigation project site. A pro-

dicating that a mitigation bank or in- spective permittee planning to secure
lieu fee program will be used (contin- credits from an approved mitigation
292
bank or in-lieu fee program only needs and if adaptive management is needed.
to provide baseline information about A schedule for monitoring and report-
the impact site, not the mitigation ing on monitoring results to the dis-
bank or in-lieu fee project site. trict engineer must be included. (See
(6) Determination of credits. A descrip- § 230.96.)
tion of the number of credits to be pro- (11) Long-term management plan. A de-
vided, including a brief explanation of scription of how the compensatory
the rationale for this determination. mitigation project will be managed
(See § 230.93(f).) after performance standards have been
(i) For permittee-responsible mitiga- achieved to ensure the long-term sus-
tion, this should include an expla- tainability of the resource, including
nation of how the compensatory miti- long-term financing mechanisms and
gation project will provide the required the party responsible for long-term
compensation for unavoidable impacts management. (See § 230.97(d).)
to aquatic resources resulting from the (12) Adaptive management plan. A
permitted activity. management strategy to address un-
(ii) For permittees intending to se- foreseen changes in site conditions or
cure credits from an approved mitiga- other components of the compensatory
tion bank or in-lieu fee program, it mitigation project, including the party
should include the number and re- or parties responsible for implementing
source type of credits to be secured and adaptive management measures. The
how these were determined. adaptive management plan will guide
(7) Mitigation work plan. Detailed decisions for revising compensatory
written specifications and work de- mitigation plans and implementing
scriptions for the compensatory miti- measures to address both foreseeable
gation project, including, but not lim- and unforeseen circumstances that ad-
ited to, the geographic boundaries of versely affect compensatory mitigation
the project; construction methods, tim- success. (See § 230.97(c).)
ing, and sequence; source(s) of water, (13) Financial assurances. A descrip-
including connections to existing tion of financial assurances that will
waters and uplands; methods for estab- be provided and how they are sufficient
lishing the desired plant community; to ensure a high level of confidence
plans to control invasive plant species; that the compensatory mitigation
the proposed grading plan, including project will be successfully completed,
elevations and slopes of the substrate; in accordance with its performance
soil management; and erosion control standards (see § 230.93(n)).
measures. For stream compensatory (14) Other information. The district
mitigation projects, the mitigation engineer may require additional infor-
work plan may also include other rel- mation as necessary to determine the
evant information, such as planform appropriateness, feasibility, and prac-
geometry, channel form (e.g., typical ticability of the compensatory mitiga-
channel cross-sections), watershed size, tion project.
design discharge, and riparian area
plantings. § 230.95 Ecological performance stand-
(8) Maintenance plan. A description ards.
and schedule of maintenance require- (a) The approved mitigation plan
ments to ensure the continued viabil- must contain performance standards
ity of the resource once initial con- that will be used to assess whether the
struction is completed. project is achieving its objectives. Per-
(9) Performance standards. Eco- formance standards should relate to
logically-based standards that will be the objectives of the compensatory
used to determine whether the compen- mitigation project, so that the project
satory mitigation project is achieving can be objectively evaluated to deter-
its objectives. (See § 230.95.) mine if it is developing into the desired
(10) Monitoring requirements. A de- resource type, providing the expected
scription of parameters to be mon- functions, and attaining any other ap-
itored in order to determine if the com- plicable metrics (e.g., acres).

pensatory mitigation project is on (b) Performance standards must be
track to meet performance standards based on attributes that are objective
293
§ 230.96 40 CFR Ch. I (7–1–21 Edition)
and verifiable. Ecological performance sponsible for submitting those moni-

standards must be based on the best toring reports to the district engineer.
available science that can be measured (2) The district engineer may conduct
or assessed in a practicable manner. site inspections on a regular basis (e.g.,
Performance standards may be based annually) during the monitoring period
on variables or measures of functional to evaluate mitigation site perform-
capacity described in functional assess- ance.
ment methodologies, measurements of (b) Monitoring period. The mitigation
hydrology or other aquatic resource plan must provide for a monitoring pe-
characteristics, and/or comparisons to riod that is sufficient to demonstrate
reference aquatic resources of similar that the compensatory mitigation
type and landscape position. The use of project has met performance standards,
reference aquatic resources to estab- but not less than five years. A longer
lish performance standards will help monitoring period must be required for
ensure that those performance stand- aquatic resources with slow develop-
ards are reasonably achievable, by re- ment rates (e.g., forested wetlands,
flecting the range of variability exhib- bogs). Following project implementa-
ited by the regional class of aquatic re- tion, the district engineer may reduce
sources as a result of natural processes or waive the remaining monitoring re-
and anthropogenic disturbances. Per- quirements upon a determination that
formance standards based on measure-
the compensatory mitigation project
ments of hydrology should take into
has achieved its performance stand-
consideration the hydrologic varia-
ards. Conversely the district engineer
bility exhibited by reference aquatic
may extend the original monitoring pe-
resources, especially wetlands. Where
riod upon a determination that per-
practicable, performance standards
formance standards have not been met
should take into account the expected
stages of the aquatic resource develop- or the compensatory mitigation
ment process, in order to allow early project is not on track to meet them.
identification of potential problems The district engineer may also revise
and appropriate adaptive management. monitoring requirements when remedi-
ation and/or adaptive management is
§ 230.96 Monitoring. required.
(c) Monitoring reports. (1) The district
(a) General. (1) Monitoring the com-
engineer must determine the informa-
pensatory mitigation project site is
tion to be included in monitoring re-
necessary to determine if the project is
meeting its performance standards, and ports. This information must be suffi-
to determine if measures are necessary cient for the district engineer to deter-
to ensure that the compensatory miti- mine how the compensatory mitigation
gation project is accomplishing its ob- project is progressing towards meeting
jectives. The submission of monitoring its performance standards, and may in-
reports to assess the development and clude plans (such as as-built plans),
condition of the compensatory mitiga- maps, and photographs to illustrate
tion project is required, but the con- site conditions. Monitoring reports
tent and level of detail for those moni- may also include the results of func-
toring reports must be commensurate tional, condition, or other assessments
with the scale and scope of the compen- used to provide quantitative or quali-
satory mitigation project, as well as tative measures of the functions pro-
the compensatory mitigation project vided by the compensatory mitigation
type. The mitigation plan must address project site.
the monitoring requirements for the (2) The permittee or sponsor is re-
compensatory mitigation project, in- sponsible for submitting monitoring re-
cluding the parameters to be mon- ports in accordance with the special
itored, the length of the monitoring pe- conditions of the DA permit or the
riod, the party responsible for con- terms of the instrument. Failure to
ducting the monitoring, the frequency submit monitoring reports in a timely

for submitting monitoring reports to manner may result in compliance ac-
the district engineer, and the party re- tion by the district engineer.
294
(3) Monitoring reports must be pro- (3) The real estate instrument, man-
vided by the district engineer to inter- agement plan, or other long-term pro-
ested federal, tribal, state, and local tection mechanism must contain a pro-
resource agencies, and the public, upon vision requiring 60-day advance notifi-
request. cation to the district engineer before
any action is taken to void or modify
§ 230.97 Management. the instrument, management plan, or
(a) Site protection. (1) The aquatic long-term protection mechanism, in-
habitats, riparian areas, buffers, and cluding transfer of title to, or estab-
uplands that comprise the overall com- lishment of any other legal claims
pensatory mitigation project must be over, the compensatory mitigation
provided long-term protection through site.
real estate instruments or other avail- (4) For compensatory mitigation
able mechanisms, as appropriate. Long- projects on public lands, where Federal
term protection may be provided facility management plans or inte-
through real estate instruments such grated natural resources management
as conservation easements held by en- plans are used to provide long-term
tities such as federal, tribal, state, or protection, and changes in statute, reg-
local resource agencies, non-profit con- ulation, or agency needs or mission re-
servation organizations, or private sults in an incompatible use on public
land managers; the transfer of title to lands originally set aside for compen-
such entities; or by restrictive cov- satory mitigation, the public agency
enants. For government property, long- authorizing the incompatible use is re-
term protection may be provided sponsible for providing alternative
through federal facility management compensatory mitigation that is ac-
plans or integrated natural resources ceptable to the district engineer for
management plans. When approving a any loss in functions resulting from
method for long-term protection of the incompatible use.
non-government property other than (5) A real estate instrument, manage-
transfer of title, the district engineer ment plan, or other long-term protec-
shall consider relevant legal con- tion mechanism used for site protec-
straints on the use of conservation tion of permittee-responsible mitiga-
easements and/or restrictive covenants tion must be approved by the district
in determining whether such mecha- engineer in advance of, or concurrent
nisms provide sufficient site protec- with, the activity causing the author-
tion. To provide sufficient site protec- ized impacts.
tion, a conservation easement or re- (b) Sustainability. Compensatory miti-
strictive covenant should, where prac- gation projects shall be designed, to
ticable, establish in an appropriate the maximum extent practicable, to be
third party (e.g., governmental or non- self-sustaining once performance
profit resource management agency) standards have been achieved. This in-
the right to enforce site protections cludes minimization of active engineer-
and provide the third party the re- ing features (e.g., pumps) and appro-
sources necessary to monitor and en- priate siting to ensure that natural hy-
force these site protections. drology and landscape context will sup-
(2) The real estate instrument, man- port long-term sustainability. Where
agement plan, or other mechanism pro- active long-term management and
viding long-term protection of the maintenance are necessary to ensure
compensatory mitigation site must, to long-term sustainability (e.g., pre-
the extent appropriate and practicable, scribed burning, invasive species con-
prohibit incompatible uses (e.g., clear trol, maintenance of water control
cutting or mineral extraction) that structures, easement enforcement), the
might otherwise jeopardize the objec- responsible party must provide for such
tives of the compensatory mitigation management and maintenance. This in-
project. Where appropriate, multiple cludes the provision of long-term fi-
instruments recognizing compatible nancing mechanisms where necessary.

uses (e.g., fishing or grazing rights) Where needed, the acquisition and pro-
may be used. tection of water rights must be secured
295
§ 230.98 40 CFR Ch. I (7–1–21 Edition)
and documented in the permit condi- project. The permit conditions or in-
tions or instrument. strument may contain provisions al-
(c) Adaptive management. (1) If the lowing the permittee or sponsor to
compensatory mitigation project can- transfer the long-term management re-
not be constructed in accordance with sponsibilities of the compensatory
the approved mitigation plans, the per- mitigation project site to a land stew-
mittee or sponsor must notify the dis- ardship entity, such as a public agency,
trict engineer. A significant modifica- non-governmental organization, or pri-
tion of the compensatory mitigation vate land manager, after review and
project requires approval from the disapproval by the district engineer. The
trict engineer. land stewardship entity need not be
(2) If monitoring or other informa- identified in the original permit or in-
tion indicates that the compensatory strument, as long as the future trans-
mitigation project is not progressing fer of long-term management responsi-
towards meeting its performance bility is approved by the district engi-
standards as anticipated, the respon- neer.
sible party must notify the district en- (2) A long-term management plan
gineer as soon as possible. The district should include a description of long-
engineer will evaluate and pursue term management needs, annual cost
measures to address deficiencies in the estimates for these needs, and identify
compensatory mitigation project. The the funding mechanism that will be
district engineer will consider whether used to meet those needs.
the compensatory mitigation project is (3) Any provisions necessary for long-
providing ecological benefits com- term financing must be addressed in
parable to the original objectives of the original permit or instrument. The
the compensatory mitigation project. district engineer may require provi-
(3) The district engineer, in consulta- sions to address inflationary adjust-
tion with the responsible party (and ments and other contingencies, as ap-
other federal, tribal, state, and local propriate. Appropriate long-term fi-
agencies, as appropriate), will deter- nancing mechanisms include non-wast-
mine the appropriate measures. The ing endowments, trusts, contractual
measures may include site modifica- arrangements with future responsible
tions, design changes, revisions to parties, and other appropriate financial
maintenance requirements, and revised instruments. In cases where the long-
monitoring requirements. The meas- term management entity is a public
ures must be designed to ensure that authority or government agency, that
the modified compensatory mitigation entity must provide a plan for the
project provides aquatic resource func- long-term financing of the site.
tions comparable to those described in (4) For permittee-responsible mitiga-
the mitigation plan objectives. tion, any long-term financing mecha-
(4) Performance standards may be re- nisms must be approved in advance of
vised in accordance with adaptive man- the activity causing the authorized im-
agement to account for measures taken pacts.
to address deficiencies in the compen-
satory mitigation project. Performance § 230.98 Mitigation banks and in-lieu
standards may also be revised to re- fee programs.
flect changes in management strate- (a) General considerations. (1) All miti-
gies and objectives if the new standards gation banks and in-lieu fee programs
provide for ecological benefits that are must have an approved instrument
comparable or superior to the approved signed by the sponsor and the district
compensatory mitigation project. No engineer prior to being used to provide
other revisions to performance stand- compensatory mitigation for DA per-
ards will be allowed except in the case mits.
of natural disasters. (2) To the maximum extent prac-
(d) Long-term management. (1) The ticable, mitigation banks and in-lieu
permit conditions or instrument must fee project sites must be planned and
identify the party responsible for own- designed to be self-sustaining over

ership and all long-term management time, but some active management and
of the compensatory mitigation maintenance may be required to ensure
296
their long-term viability and sustain- priate documents and provide com-
ability. Examples of acceptable man- ments to the district engineer. The dis-
agement activities include maintaining trict engineer and the IRT should use a
fire dependent habitat communities in watershed approach to the extent prac-
the absence of natural fire and control- ticable in reviewing proposed mitiga-
ling invasive exotic plant species. tion banks and in-lieu fee programs.
(3) All mitigation banks and in-lieu Members of the IRT may also sign the
fee programs must comply with the instrument, if they so choose. By sign-
standards in this part, if they are to be ing the instrument, the IRT members
used to provide compensatory mitiga- indicate their agreement with the
tion for activities authorized by DA terms of the instrument. As an alter-
permits, regardless of whether they are native, a member of the IRT may sub-
sited on public or private lands and mit a letter expressing concurrence
whether the sponsor is a governmental with the instrument. The IRT will also
or private entity.
advise the district engineer in assess-
(b) Interagency Review Team. (1) The
ing monitoring reports, recommending
district engineer will establish an
remedial or adaptive management
Interagency Review Team (IRT) to re-
view documentation for the establish- measures, approving credit releases,
ment and management of mitigation and approving modifications to an in-
banks and in-lieu fee programs. The strument. In order to ensure timely
district engineer or his designated rep- processing of instruments and other
resentative serves as Chair of the IRT. documentation, comments from IRT
In cases where a mitigation bank or in- members must be received by the dis-
lieu fee program is proposed to satisfy trict engineer within the time limits
the requirements of another federal, specified in this section. Comments re-
tribal, state, or local program, in addi- ceived after these deadlines will only
tion to compensatory mitigation re- be considered at the discretion of the
quirements of DA permits, it may be district engineer to the extent that
appropriate for the administering doing so does not jeopardize the dead-
agency to serve as co-Chair of the IRT. lines for district engineer action.
(2) In addition to the Corps, rep- (4) The district engineer will give full
resentatives from the U.S. Environ- consideration to any timely comments
mental Protection Agency, U.S. Fish and advice of the IRT. The district en-
and Wildlife Service, NOAA Fisheries, gineer alone retains final authority for
the Natural Resources Conservation approval of the instrument in cases
Service, and other federal agencies, as where the mitigation bank or in-lieu
appropriate, may participate in the fee program is used to satisfy compen-
IRT. The IRT may also include rep- satory mitigation requirements of DA
resentatives from tribal, state, and permits.
local regulatory and resource agencies, (5) MOAs with other agencies. The dis-
where such agencies have authorities
trict engineer and members of the IRT
and/or mandates directly affecting, or
may enter into a memorandum of
affected by, the establishment, oper-
agreement (MOA) with any other fed-
ation, or use of the mitigation bank or
eral, state or local government agency
in-lieu fee program. The district engi-
neer will seek to include all public to perform all or some of the IRT re-
agencies with a substantive interest in view functions described in this sec-
the establishment of the mitigation tion. Such MOAs must include provi-
bank or in-lieu fee program on the IRT, sions for appropriate federal oversight
but retains final authority over its of the review process. The district engi-
composition. neer retains sole authority for final ap-
(3) The primary role of the IRT is to proval of instruments and other docu-
facilitate the establishment of mitiga- mentation required under this section.
tion banks or in-lieu fee programs (c) Compensation planning framework
through the development of mitigation for in-lieu fee programs. (1) The approved
banking or in-lieu fee program instru- instrument for an in-lieu fee program
ments. The IRT will review the pro- must include a compensation planning
spectus, instrument, and other appro- framework that will be used to select,
297
§ 230.98 40 CFR Ch. I (7–1–21 Edition)
secure, and implement aquatic re- (x) A strategy for periodic evaluation
source restoration, establishment, en- and reporting on the progress of the
hancement, and/or preservation activi- program in achieving the goals and ob-
ties. The compensation planning jectives in paragraph (c)(2)(v) of this
framework must support a watershed section, including a process for revising
approach to compensatory mitigation. the planning framework as necessary;
All specific projects used to provide and
compensation for DA permits must be (xi) Any other information deemed
consistent with the approved com- necessary for effective compensation
pensation planning framework. Modi- planning by the district engineer.
fications to the framework must be ap- (3) The level of detail necessary for
proved as a significant modification to the compensation planning framework
the instrument by the district engi- is at the discretion of the district engi-
neer, after consultation with the IRT. neer, and will take into account the
(2) The compensation planning characteristics of the service area(s)
framework must contain the following and the scope of the program. As part
elements: of the in-lieu fee program instrument,
(i) The geographic service area(s), in- the compensation planning framework
cluding a watershed-based rationale for will be reviewed by the IRT, and will be
the delineation of each service area; a major factor in the district engi-
(ii) A description of the threats to neer’s decision on whether to approve
aquatic resources in the service area(s), the instrument.
including how the in-lieu fee program (d) Review process. (1) The sponsor is
will help offset impacts resulting from responsible for preparing all docu-
those threats; mentation associated with establish-
(iii) An analysis of historic aquatic ment of the mitigation bank or in-lieu
resource loss in the service area(s); fee program, including the prospectus,
(iv) An analysis of current aquatic instrument, and other appropriate doc-
resource conditions in the service uments, such as mitigation plans for a
area(s), supported by an appropriate mitigation bank. The prospectus pro-
level of field documentation; vides an overview of the proposed miti-
(v) A statement of aquatic resource gation bank or in-lieu fee program and
goals and objectives for each service serves as the basis for public and ini-
area, including a description of the tial IRT comment. For a mitigation
general amounts, types and locations bank, the mitigation plan, as described
of aquatic resources the program will in § 230.94(c), provides detailed plans
seek to provide; and specifications for the mitigation
(vi) A prioritization strategy for se- bank site. For in-lieu fee programs,
lecting and implementing compen- mitigation plans will be prepared as in-
satory mitigation activities; lieu fee project sites are identified
(vii) An explanation of how any pres- after the instrument has been approved
ervation objectives identified in para- and the in-lieu fee program becomes
graph (c)(2)(v) of this section and ad- operational. The instrument provides
dressed in the prioritization strategy the authorization for the mitigation
in paragraph (c)(2)(vi) satisfy the cri- bank or in-lieu fee program to provide
teria for use of preservation in credits to be used as compensatory
§ 230.93(h); mitigation for DA permits.
(viii) A description of any public and (2) Prospectus. The prospectus must
private stakeholder involvement in provide a summary of the information
plan development and implementation, regarding the proposed mitigation
including, where appropriate, coordina- bank or in-lieu fee program, at a suffi-
tion with federal, state, tribal and cient level of detail to support in-
local aquatic resource management formed public and IRT comment. The
and regulatory authorities; review process begins when the sponsor
(ix) A description of the long-term submits a complete prospectus to the
protection and management strategies district engineer. For modifications of

for activities conducted by the in-lieu approved instruments, submittal of a
fee program sponsor; new prospectus is not required; instead,
298
the sponsor must submit a written re- optional but is strongly recommended.
quest for an instrument modification It is intended to identify potential
accompanied by appropriate docu- issues early so that the sponsor may
mentation. The district engineer must attempt to address those issues prior
notify the sponsor within 30 days to the start of the formal review proc-
whether or not a submitted prospectus ess.
is complete. A complete prospectus in- (4) Public review and comment. Within
cludes the following information: 30 days of receipt of a complete pro-
(i) The objectives of the proposed spectus or an instrument modification
mitigation bank or in-lieu fee program. request that will be processed in ac-
(ii) How the mitigation bank or in- cordance with paragraph (g)(1) of this
lieu fee program will be established section, the district engineer will pro-
and operated. vide public notice of the proposed miti-
(iii) The proposed service area. gation bank or in-lieu fee program, in
(iv) The general need for and tech- accordance with the public notice pro-
nical feasibility of the proposed miti- cedures at 33 CFR 325.3. The public no-
gation bank or in-lieu fee program. tice must, at a minimum, include a
(v) The proposed ownership arrange- summary of the prospectus and indi-
ments and long-term management cate that the full prospectus is avail-
strategy for the mitigation bank or in- able to the public for review upon re-
lieu fee project sites. quest. For modifications of approved
(vi) The qualifications of the sponsor instruments, the public notice must in-
to successfully complete the type(s) of stead summarize, and make available
mitigation project(s) proposed, includ- to the public upon request, whatever
ing information describing any past documentation is appropriate for the
such activities by the sponsor. modification (e.g., a new or revised
(vii) For a proposed mitigation bank, mitigation plan). The comment period
the prospectus must also address: for public notice will be 30 days, unless
(A) The ecological suitability of the the district engineer determines that a
site to achieve the objectives of the longer comment period is appropriate.
proposed mitigation bank, including The district engineer will notify the
the physical, chemical, and biological sponsor if the comment period is ex-
characteristics of the bank site and tended beyond 30 days, including an ex-
how that site will support the planned planation of why the longer comment
types of aquatic resources and func- period is necessary. Copies of all com-
tions; and ments received in response to the pub-
(B) Assurance of sufficient water lic notice must be distributed to the
rights to support the long-term sus- other IRT members and to the sponsor
tainability of the mitigation bank. within 15 days of the close of the public
(viii) For a proposed in-lieu fee pro- comment period. The district engineer
gram, the prospectus must also in- and IRT members may also provide
clude: comments to the sponsor at this time,
(A) The compensation planning and copies of any such comments will
framework (see paragraph (c) of this also be distributed to all IRT members.
section); and If the construction of a mitigation
(B) A description of the in-lieu fee bank or an in-lieu fee program project
program account required by para- requires a DA permit, the public notice
graph (i) of this section. requirement may be satisfied through
(3) Preliminary review of prospectus. the public notice provisions of the per-
Prior to submitting a prospectus, the mit processing procedures, provided all
sponsor may elect to submit a draft of the relevant information is provided.
prospectus to the district engineer for (5) Initial evaluation. (i) After the end
comment and consultation. The dis- of the comment period, the district en-
trict engineer will provide copies of the gineer will review the comments re-
draft prospectus to the IRT and will ceived in response to the public notice,
provide comments back to the sponsor and make a written initial evaluation
within 30 days. Any comments from as to the potential of the proposed

IRT members will also be forwarded to mitigation bank or in-lieu fee program
the sponsor. This preliminary review is to provide compensatory mitigation
299
§ 230.98 40 CFR Ch. I (7–1–21 Edition)
for activities authorized by DA per- instrument must be based on the pro-

mits. This initial evaluation letter spectus and must describe in detail the
must be provided to the sponsor within physical and legal characteristics of
30 days of the end of the public notice the mitigation bank or in-lieu fee pro-
comment period. gram and how it will be established and
(ii) If the district engineer deter- operated.
mines that the proposed mitigation (ii) For mitigation banks and in-lieu
bank or in-lieu fee program has poten- fee programs, the draft instrument
tial for providing appropriate compen- must include the following informa-
satory mitigation for activities author- tion:
ized by DA permits, the initial evalua- (A) A description of the proposed geo-
tion letter will inform the sponsor that graphic service area of the mitigation
he/she may proceed with preparation of bank or in-lieu fee program. The serv-
the draft instrument (see paragraph ice area is the watershed, ecoregion,
(d)(6) of this section). physiographic province, and/or other
(iii) If the district engineer deter- geographic area within which the miti-
mines that the proposed mitigation gation bank or in-lieu fee program is
bank or in-lieu fee program does not authorized to provide compensatory
have potential for providing appro- mitigation required by DA permits.
priate compensatory mitigation for DA The service area must be appropriately
permits, the initial evaluation letter sized to ensure that the aquatic re-
must discuss the reasons for that de- sources provided will effectively com-
termination. The sponsor may revise pensate for adverse environmental im-
the prospectus to address the district pacts across the entire service area.
engineer’s concerns, and submit the re- For example, in urban areas, a U.S. Ge-
vised prospectus to the district engi- ological Survey 8-digit hydrologic unit
neer. If the sponsor submits a revised code (HUC) watershed or a smaller wa-
prospectus, a revised public notice will tershed may be an appropriate service
be issued in accordance with paragraph area. In rural areas, several contiguous
(d)(4) of this section. 8-digit HUCs or a 6-digit HUC water-
(iv) This initial evaluation procedure shed may be an appropriate service
does not apply to proposed modifica- area. Delineation of the service area
tions of approved instruments. must also consider any locally-devel-
(6) Draft instrument. (i) After consid- oped standards and criteria that may
ering comments from the district engi- be applicable. The economic viability
neer, the IRT, and the public, if the of the mitigation bank or in-lieu fee
sponsor chooses to proceed with estab- program may also be considered in de-
lishment of the mitigation bank or in- termining the size of the service area.
lieu fee program, he must prepare a The basis for the proposed service area
draft instrument and submit it to the must be documented in the instrument.
district engineer. In the case of an in- An in-lieu fee program or umbrella
strument modification, the sponsor mitigation banking instrument may
must prepare a draft amendment (e.g., have multiple service areas governed
a specific instrument provision, a new by its instrument (e.g., each watershed
or modified mitigation plan), and sub- within a State or Corps district may be
mit it to the district engineer. The dis- a separate service area under the in-
trict engineer must notify the sponsor strument); however, all impacts and
within 30 days of receipt, whether the compensatory mitigation must be ac-
draft instrument or amendment is counted for by service area;
complete. If the draft instrument or (B) Accounting procedures;
amendment is incomplete, the district (C) A provision stating that legal re-
engineer will request from the sponsor sponsibility for providing the compen-
the information necessary to make the satory mitigation lies with the sponsor
draft instrument or amendment com- once a permittee secures credits from
plete. Once any additional information the sponsor;
is submitted, the district engineer (D) Default and closure provisions;
must notify the sponsor as soon as he (E) Reporting protocols; and

determines that the draft instrument (F) Any other information deemed
or amendment is complete. The draft necessary by the district engineer.
300
(iii) For a mitigation bank, a com- neer will discuss any comments with
plete draft instrument must include the appropriate agencies and with the
the following additional information: sponsor. The district engineer will seek
(A) Mitigation plans that include all to resolve issues using a consensus
applicable items listed in § 230.94(c)(2) based approach, to the extent prac-
through (14); and ticable, while still meeting the deci-
(B) A credit release schedule, which sion-making time frames specified in
is tied to achievement of specific mile- this section. Within 90 days of receipt
stones. All credit releases must be ap- of the complete draft instrument or
proved by the district engineer, in con- amendment by the IRT members, the
sultation with the IRT, based on a de- district engineer must notify the spon-
termination that required milestones sor of the status of the IRT review.
have been achieved. The district engi- Specifically, the district engineer must
neer, in consultation with the IRT, indicate to the sponsor if the draft in-
may modify the credit release sched- strument or amendment is generally
ule, including reducing the number of acceptable and what changes, if any,
available credits or suspending credit are needed. If there are significant un-
sales or transfers altogether, where resolved concerns that may lead to a
necessary to ensure that all credits formal objection from one or more IRT
sales or transfers remain tied to com- members to the final instrument or
pensatory mitigation projects with a amendment, the district engineer will
high likelihood of meeting performance
indicate the nature of those concerns.
standards;
(8) Final instrument. The sponsor must
(iv) For an in-lieu fee program, a
complete draft instrument must in- submit a final instrument to the dis-
clude the following additional informa- trict engineer for approval, with sup-
tion: porting documentation that explains
(A) The compensation planning how the final instrument addresses the
framework (see paragraph (c) of this comments provided by the IRT. For
section); modifications of approved instruments,
(B) Specification of the initial alloca- the sponsor must submit a final
tion of advance credits (see paragraph amendment to the district engineer for
(n) of this section) and a draft fee approval, with supporting documenta-
schedule for these credits, by service tion that explains how the final amend-
area, including an explanation of the ment addresses the comments provided
basis for the allocation and draft fee by the IRT. The final instrument or
schedule; amendment must be provided directly
(C) A methodology for determining by the sponsor to all members of the
future project-specific credits and fees; IRT. Within 30 days of receipt of the
and final instrument or amendment, the
(D) A description of the in-lieu fee district engineer will notify the IRT
program account required by para- members whether or not he intends to
graph (i) of this section. approve the instrument or amendment.
(7) IRT review. Upon receipt of notifi- If no IRT member objects, by initiating
cation by the district engineer that the the dispute resolution process in para-
draft instrument or amendment is graph (e) of this section within 45 days
complete, the sponsor must provide the of receipt of the final instrument or
district engineer with a sufficient num- amendment, the district engineer will
ber of copies of the draft instrument or notify the sponsor of his final decision
amendment to distribute to the IRT and, if the instrument or amendment is
members. The district engineer will approved, arrange for it to be signed by
promptly distribute copies of the draft the appropriate parties. If any IRT
instrument or amendment to the IRT member initiates the dispute resolu-
members for a 30 day comment period. tion process, the district engineer will
The 30-day comment period begins 5 notify the sponsor. Following conclu-
days after the district engineer distrib- sion of the dispute resolution process,
utes the copies of the draft instrument the district engineer will notify the
or amendment to the IRT. Following sponsor of his final decision, and if the
the comment period, the district engi- instrument or amendment is approved,
301
§ 230.98 40 CFR Ch. I (7–1–21 Edition)
arrange for it to be signed by the ap- Oceans and Atmosphere of NOAA, as

propriate parties. For mitigation appropriate, for review and must notify
banks, the final instrument must con- the district engineer by letter via elec-
tain the information items listed in tronic mail or facsimile machine (with
paragraphs (d)(6)(ii), and (iii) of this copies to all IRT members) that the
section. For in-lieu fee programs, the issue has been forwarded for Head-
final instrument must contain the in- quarters review. This step is available
formation items listed in paragraphs only to the IRT members representing
(d)(6)(ii) and (iv) of this section. For these three federal agencies, however,
the modification of an approved instru- other IRT members who do not agree
ment, the amendment must contain ap- with the district engineer’s final deci-
propriate information, as determined sion do not have to sign the instrument
by the district engineer. The final in- or amendment or recognize the mitiga-
strument or amendment must be made tion bank or in-lieu fee program for
available to the public upon request. purposes of their own programs and au-
(e) Dispute resolution process. (1) With- thorities. If an IRT member other than
in 15 days of receipt of the district en- the one filing the original objection
gineer’s notification of intent to ap- has a new objection based on the dis-
prove an instrument or amendment, trict engineer’s response, he may use
the Regional Administrator of the U.S. the first step in this procedure (para-
EPA, the Regional Director of the U.S. graph (e)(1) of this section) to provide
Fish and Wildlife Service, the Regional that objection to the district engineer.
Director of the National Marine Fish-
(4) If the issue has not been for-
eries Service, and/or other senior offi-
warded to the objecting agency’s Head-
cials of agencies represented on the
quarters, then the district engineer
IRT may notify the district engineer
may proceed with final action on the
and other IRT members by letter if
instrument or amendment. If the issue
they object to the approval of the pro-
has been forwarded to the objecting
posed final instrument or amendment.
agency’s Headquarters, the district en-
This letter must include an expla-
gineer must hold in abeyance the final
nation of the basis for the objection
action on the instrument or amend-
and, where feasible, offer recommenda-
tions for resolving the objections. If ment, pending Headquarters level re-
the district engineer does not receive view described below.
any objections within this time period, (5) Within 20 days from the date of
he may proceed to final action on the the letter requesting Headquarters
instrument or amendment. level review, the Assistant Adminis-
(2) The district engineer must re- trator for Water, the Assistant Sec-
spond to the objection within 30 days of retary for Fish and Wildlife and Parks,
receipt of the letter. The district engi- or the Undersecretary for Oceans and
neer’s response may indicate an intent Atmosphere must either notify the As-
to disapprove the instrument or sistant Secretary of the Army (Civil
amendment as a result of the objec- Works) (ASA(CW)) that further review
tion, an intent to approve the instru- will not be requested, or request that
ment or amendment despite the objec- the ASA(CW) review the final instru-
tion, or may provide a modified instrument or amendment.
ment or amendment that attempts to (6) Within 30 days of receipt of the
address the objection. The district en- letter from the objecting agency’s
gineer’s response must be provided to Headquarters request for ASA(CW)’s
all IRT members. review of the final instrument, the
(3) Within 15 days of receipt of the ASA(CW), through the Director of Civil
district engineer’s response, if the Re- Works, must review the draft instru-
gional Administrator or Regional Di- ment or amendment and advise the dis-
rector is not satisfied with the re- trict engineer on how to proceed with
sponse he may forward the issue to the final action on that instrument or
Assistant Administrator for Water of amendment. The ASA(CW) must imme-
the U.S. EPA, the Assistant Secretary diately notify the Assistant Adminis-
for Fish and Wildlife and Parks of the trator for Water, the Assistant Sec-
U.S. FWS, or the Undersecretary for retary for Fish and Wildlife and Parks,
302
and/or the Undersecretary for Oceans changes that the district engineer de-
and Atmosphere of the final decision. termines are not significant. If the dis-
(7) In cases where the dispute resolu- trict engineer determines that the
tion procedure is used, the district en- streamlined review process is war-
gineer must notify the sponsor of his ranted, he must notify the IRT mem-
final decision within 150 days of receipt bers and the sponsor of this determina-
of the final instrument or amendment. tion and provide them with copies of
(f) Extension of deadlines. (1) The the proposed modification. IRT mem-
deadlines in paragraphs (d) and (e) of bers and the sponsor have 30 days to
this section may be extended by the notify the district engineer if they
district engineer at his sole discretion have concerns with the proposed modi-
in cases where: fication. If IRT members or the sponsor
(i) Compliance with other applicable notify the district engineer of such
laws, such as consultation under sec- concerns, the district engineer shall at-
tion 7 of the Endangered Species Act or tempt to resolve those concerns. With-
section 106 of the National Historic in 60 days of providing the proposed
Preservation Act, is required; modification to the IRT, the district
(ii) It is necessary to conduct govern- engineer must notify the IRT members
ment-to-government consultation with of his intent to approve or disapprove
Indian tribes; the proposed modification. If no IRT
(iii) Timely submittal of information member objects, by initiating the dis-
necessary for the review of the pro- pute resolution process in paragraph
posed mitigation bank or in-lieu fee
(e) of this section, within 15 days of re-
program or the proposed modification
ceipt of this notification, the district
of an approved instrument is not ac-
engineer will notify the sponsor of his
complished by the sponsor; or
final decision and, if the modification
(iv) Information that is essential to
is approved, arrange for it to be signed
the district engineer’s decision cannot
by the appropriate parties. If any IRT
be reasonably obtained within the spec-
member initiates the dispute resolu-
ified time frame.
tion process, the district engineer will
(2) In such cases, the district engi-
so notify the sponsor. Following con-
neer must promptly notify the sponsor
clusion of the dispute resolution proc-
in writing of the extension and the rea-
son for it. Such extensions shall be for ess, the district engineer will notify
the minimum time necessary to re- the sponsor of his final decision, and if
solve the issue necessitating the exten- the modification is approved, arrange
sion. for it to be signed by the appropriate
(g) Modification of instruments. (1) Ap- parties.
proval of an amendment to an approved (h) Umbrella mitigation banking instru-
instrument. Modification of an approved ments. A single mitigation banking in-
instrument, including the addition and strument may provide for future au-
approval of umbrella mitigation bank thorization of additional mitigation
sites or in-lieu fee project sites or ex- bank sites. As additional sites are se-
pansions of previously approved miti- lected, they must be included in the
gation bank or in-lieu fee project sites, mitigation banking instrument as
must follow the appropriate procedures modifications, using the procedures in
in paragraph (d) of this section, unless paragraph (g)(1) of this section. Credit
the district engineer determines that withdrawal from the additional bank
the streamlined review process de- sites shall be consistent with para-
scribed in paragraph (g)(2) of this sec- graph (m) of this section.
tion is warranted. (i) In-lieu fee program account. (1) The
(2) Streamlined review process. The in-lieu fee program sponsor must estab-
streamlined modification review proc- lish a program account after the in-
ess may be used for the following modi- strument is approved by the district
fications of instruments: changes re- engineer, prior to accepting any fees
flecting adaptive management of the from permittees. If the sponsor accepts
mitigation bank or in-lieu fee program, funds from entities other than permit-
credit releases, changes in credit re- tees, those funds must be kept in sepa-
leases and credit release schedules, and rate accounts. The program account
303
§ 230.98 40 CFR Ch. I (7–1–21 Edition)
must be established at a financial in- maintenance, contingencies, adaptive

stitution that is a member of the Fed- management, and administration;
eral Deposit Insurance Corporation. All (iv) The balance of advance credits
interests and earnings accruing to the and released credits at the end of the
program account must remain in that report period for each service area; and
account for use by the in-lieu fee pro- (v) Any other information required
gram for the purposes of providing by the district engineer.
compensatory mitigation for DA per- (4) The district engineer may audit
mits. The program account may only the records pertaining to the program
be used for the selection, design, acqui- account. All books, accounts, reports,
sition, implementation, and manage- files, and other records relating to the
ment of in-lieu fee compensatory miti- in-lieu fee program account shall be
gation projects, except for a small per- available at reasonable times for in-
centage (as determined by the district spection and audit by the district engi-
engineer in consultation with the IRT neer.
and specified in the instrument) that
(j) In-lieu fee project approval. (1) As
can be used for administrative costs.
in-lieu fee project sites are identified
(2) The sponsor must submit proposed
and secured, the sponsor must submit
in-lieu fee projects to the district engi-
mitigation plans to the district engi-
neer for funding approval. Disburse-
neer that include all applicable items
ments from the program account may
listed in § 230.94(c)(2) through (14). The
only be made upon receipt of written
mitigation plan must also include a
authorization from the district engi-
credit release schedule consistent with
neer, after the district engineer has
consulted with the IRT. The terms of paragraph (o)(8) of this section that is
the program account must specify that tied to achievement of specific per-
the district engineer has the authority formance standards. The review and
to direct those funds to alternative approval of in-lieu fee projects will be
compensatory mitigation projects in conducted in accordance with the pro-
cases where the sponsor does not procedures in paragraph (g)(1) of this sec-
vide compensatory mitigation in action, as modifications of the in-lieu fee
cordance with the time frame specified program instrument. This includes
in paragraph (n)(4) of this section. compensatory mitigation projects con-
(3) The sponsor must provide annual ducted by another party on behalf of
reports to the district engineer and the the sponsor through requests for pro-
IRT. The annual reports must include posals and awarding of contracts.
the following information: (2) If a DA permit is required for an
(i) All income received, disburse- in-lieu fee project, the permit should
ments, and interest earned by the pro- not be issued until all relevant provi-
gram account; sions of the mitigation plan have been
(ii) A list of all permits for which in- substantively determined, to ensure
lieu fee program funds were accepted. that the DA permit accurately reflects
This list shall include: the Corps per- all relevant provisions of the approved
mit number (or the state permit num- mitigation plan, such as performance
ber if there is no corresponding Corps standards.
permit number, in cases of state pro- (k) Coordination of mitigation banking
grammatic general permits or other re- instruments and DA permit issuance. In
gional general permits), the service cases where initial establishment of
area in which the authorized impacts the mitigation bank, or the develop-
are located, the amount of authorized ment of a new project site under an
impacts, the amount of required com- umbrella banking instrument, involves
pensatory mitigation, the amount paid activities requiring DA authorization,
to the in-lieu fee program, and the date the permit should not be issued until
the funds were received from the per- all relevant provisions of the mitiga-
mittee; tion plan have been substantively de-
(iii) A description of in-lieu fee pro- termined. This is to ensure that the DA
gram expenditures from the account, permit accurately reflects all relevant
such as the costs of land acquisition, provisions of the final instrument, such
planning, construction, monitoring, as performance standards.
304
(l) Project implementation. (1) The ing season after the date of the first
sponsor must have an approved instru- credit transaction.
ment prior to collecting funds from (n) Advance credits for in-lieu fee pro-
permittees to satisfy compensatory grams. (1) The in-lieu fee program in-
mitigation requirements for DA per- strument may make a limited number
mits. of advance credits available to permit-
(2) Authorization to sell credits to tees when the instrument is approved.
satisfy compensatory mitigation re- The number of advance credits will be
quirements in DA permits is contin- determined by the district engineer, in
gent on compliance with all of the consultation with the IRT, and will be
terms of the instrument. This includes specified for each service area in the
constructing a mitigation bank or in- instrument. The number of advance
lieu fee project in accordance with the credits will be based on the following
mitigation plan approved by the dis- considerations:
trict engineer and incorporated by ref- (i) The compensation planning frame-
erence in the instrument. If the aquat- work;
ic resource restoration, establishment, (ii) The sponsor’s past performance
enhancement, and/or preservation ac- for implementing aquatic resource res-
tivities cannot be implemented in ac- toration, establishment, enhancement,
cordance with the approved mitigation and/or preservation activities in the
plan, the district engineer must con- proposed service area or other areas;
sult with the sponsor and the IRT to and
consider modifications to the instru- (iii) The projected financing nec-
ment, including adaptive management, essary to begin planning and imple-
revisions to the credit release schedule, mentation of in-lieu fee projects.
and alternatives for providing compen- (2) To determine the appropriate
satory mitigation to satisfy any cred- number of advance credits for a par-
its that have already been sold. ticular service area, the district engi-
(3) An in-lieu fee program sponsor is neer may require the sponsor to pro-
responsible for the implementation, vide confidential supporting informa-
long-term management, and any re- tion that will not be made available to
quired remediation of the restoration, the general public. Examples of con-
establishment, enhancement, and/or fidential supporting information may
preservation activities, even though include prospective in-lieu fee project
those activities may be conducted by sites.
other parties through requests for pro- (3) As released credits are produced
posals or other contracting mecha- by in-lieu fee projects, they must be
nisms. used to fulfill any advance credits that
(m) Credit withdrawal from mitigation have already been provided within the
banks. The mitigation banking instru- project service area before any remain-
ment may allow for an initial debiting ing released credits can be sold or
of a percentage of the total credits pro- transferred to permittees. Once pre-
jected at mitigation bank maturity, viously provided advance credits have
provided the following conditions are been fulfilled, an equal number of ad-
satisfied: the mitigation banking in- vance credits is re-allocated to the
strument and mitigation plan have sponsor for sale or transfer to fulfill
been approved, the mitigation bank new mitigation requirements, con-
site has been secured, appropriate fi- sistent with the terms of the instru-
nancial assurances have been estab- ment. The number of advance credits
lished, and any other requirements de- available to the sponsor at any given
termined to be necessary by the dis- time to sell or transfer to permittees in
trict engineer have been fulfilled. The a given service area is equal to the
mitigation banking instrument must number of advance credits specified in
provide a schedule for additional credit the instrument, minus any that have
releases as appropriate milestones are already been provided but not yet ful-
achieved (see paragraph (o)(8) of this filled.
section). Implementation of the ap- (4) Land acquisition and initial phys-
proved mitigation plan shall be initi- ical and biological improvements must
ated no later than the first full grow- be completed by the third full growing
305
§ 230.98 40 CFR Ch. I (7–1–21 Edition)
season after the first advance credit in determined by a functional or condi-

that service area is secured by a per- tion assessment or other suitable met-
mittee, unless the district engineer de- ric.
termines that more or less time is (4) Credit value. Once a credit is deb-
needed to plan and implement an in- ited (sold or transferred to a per-
lieu fee project. If the district engineer mittee), its value cannot change.
determines that there is a compen- (5) Credit costs. (i) The cost of com-
satory mitigation deficit in a specific pensatory mitigation credits provided
service area by the third growing sea- by a mitigation bank or in-lieu fee pro-
son after the first advance credit in gram is determined by the sponsor.
that service area is sold, and deter- (ii) For in-lieu fee programs, the cost
mines that it would not be in the pub- per unit of credit must include the ex-
lic interest to allow the sponsor addi- pected costs associated with the res-
tional time to plan and implement an toration, establishment, enhancement,
in-lieu fee project, the district engineer and/or preservation of aquatic re-
must direct the sponsor to disburse sources in that service area. These
funds from the in-lieu fee program ac- costs must be based on full cost ac-
count to provide alternative compen- counting, and include, as appropriate,
satory mitigation to fulfill those com- expenses such as land acquisition,
pensation obligations. project planning and design, construc-
(5) The sponsor is responsible for tion, plant materials, labor, legal fees,
complying with the terms of the in-lieu monitoring, and remediation or adapt-
fee program instrument. If the district ive management activities, as well as
engineer determines, as a result of re- administration of the in-lieu fee pro-
view of annual reports on the operation gram. The cost per unit credit must
of the in-lieu fee program (see para- also take into account contingency
graphs (p)(2) and (q)(1) of this section), costs appropriate to the stage of
that it is not performing in compliance project planning, including uncertain-
with its instrument, the district engi- ties in construction and real estate ex-
neer will take appropriate action, penses. The cost per unit of credit must
which may include suspension of credit also take into account the resources
sales, to ensure compliance with the necessary for the long-term manage-
in-lieu fee program instrument (see ment and protection of the in-lieu fee
paragraph (o)(10) of this section). Per- project. In addition, the cost per unit
mittees that secured credits from the credit must include financial assur-
in-lieu fee program are not responsible ances that are necessary to ensure suc-
for in-lieu fee program compliance. cessful completion of in-lieu fee
(o) Determining credits. (1) Units of projects.
measure. The principal units for credits (6) Credits provided by preservation.
and debits are acres, linear feet, func- These credits should be specified as
tional assessment units, or other suit- acres, linear feet, or other suitable
able metrics of particular resource metrics of preservation of a particular
types. Functional assessment units or resource type. In determining the com-
other suitable metrics may be linked pensatory mitigation requirements for
to acres or linear feet. DA permits using mitigation banks or
(2) Assessment. Where practicable, an in-lieu fee programs, the district engi-
appropriate assessment method (e.g., neer should apply a higher mitigation
hydrogeomorphic approach to wetlands ratio if the requirements are to be met
functional assessment, index of biologi- through the use of preservation credits.
cal integrity) or other suitable metric In determining this higher ratio, the
must be used to assess and describe the district engineer must consider the rel-
aquatic resource types that will be re- ative importance of both the impacted
stored, established, enhanced and/or and the preserved aquatic resources in
preserved by the mitigation bank or in- sustaining watershed functions.
lieu fee project. (7) Credits provided by riparian areas,
(3) Credit production. The number of buffers, and uplands. These credits
credits must reflect the difference be- should be specified as acres, linear feet,
tween pre- and post-compensatory or other suitable metrics of riparian
mitigation project site conditions, as area, buffer, and uplands respectively.
306
Non-aquatic resources can only be used of the credit release schedule must be
as compensatory mitigation for im- specified in the approved mitigation
pacts to aquatic resources authorized plan. When an in-lieu fee project or
by DA permits when those resources umbrella mitigation bank site is imple-
are essential to maintaining the eco- mented and is achieving the perform-
logical viability of adjoining aquatic ance-based milestones specified in the
resources. In determining the compen- credit release schedule, credits are gen-
satory mitigation requirements for DA erated in accordance with the credit re-
permits using mitigation banks and in- lease schedule for the approved mitiga-
lieu fee programs, the district engineer tion plan. If the in-lieu fee project or
may authorize the use of riparian area, umbrella mitigation bank site does not
buffer, and/or upland credits if he de- achieve those performance-based mile-
termines that these areas are essential stones, the district engineer may mod-
to sustaining aquatic resource func- ify the credit release schedule, includ-
tions in the watershed and are the ing reducing the number of credits.
most appropriate compensation for the (9) Credit release approval. Credit re-
authorized impacts. leases for mitigation banks and in-lieu
(8) Credit release schedule. (i) General fee projects must be approved by the
considerations. Release of credits must
district engineer. In order for credits to
be tied to performance based mile-
be released, the sponsor must submit
stones (e.g., construction, planting, es-
documentation to the district engineer
tablishment of specified plant and ani-
demonstrating that the appropriate
mal communities). The credit release
milestones for credit release have been
schedule should reserve a significant
achieved and requesting the release.
share of the total credits for release
The district engineer will provide cop-
only after full achievement of ecologi-
cal performance standards. When deter- ies of this documentation to the IRT
mining the credit release schedule, fac- members for review. IRT members
tors to be considered may include, but must provide any comments to the dis-
are not limited to: The method of pro- trict engineer within 15 days of receiv-
viding compensatory mitigation cred- ing this documentation. However, if
its (e.g., restoration), the likelihood of the district engineer determines that a
success, the nature and amount of site visit is necessary, IRT members
work needed to generate the credits, must provide any comments to the dis-
and the aquatic resource type(s) and trict engineer within 15 days of the site
function(s) to be provided by the miti- visit. The district engineer must sched-
gation bank or in-lieu fee project. The ule the site visit so that it occurs as
district engineer will determine the soon as it is practicable, but the site
credit release schedule, including the visit may be delayed by seasonal con-
share to be released only after full siderations that affect the ability of
achievement of performance standards, the district engineer and the IRT to as-
after consulting with the IRT. Once re- sess whether the applicable credit re-
leased, credits may only be used to sat- lease milestones have been achieved.
isfy compensatory mitigation require- After full consideration of any com-
ments of a DA permit if the use of cred- ments received, the district engineer
its for a specific permit has been ap- will determine whether the milestones
proved by the district engineer. have been achieved and the credits can
(ii) For single-site mitigation banks, be released. The district engineer shall
the terms of the credit release schedule make a decision within 30 days of the
must be specified in the mitigation end of that comment period, and notify
banking instrument. The credit release the sponsor and the IRT.
schedule may provide for an initial (10) Suspension and termination. If the
debiting of a limited number of credits district engineer determines that the
once the instrument is approved and mitigation bank or in-lieu fee program
other appropriate milestones are is not meeting performance standards
achieved (see paragraph (m) of this sec- or complying with the terms of the in-
tion). strument, appropriate action will be

(iii) For in-lieu fee projects and um- taken. Such actions may include, but
brella mitigation bank sites, the terms are not limited to, suspending credit
307
§ 230.98 40 CFR Ch. I (7–1–21 Edition)
sales, adaptive management, decreas- engineer may require the sponsor to

ing available credits, utilizing finan- provide an annual report showing be-
cial assurances, and terminating the ginning and ending balances, including
instrument. deposits into and any withdrawals
(p) Accounting procedures. (1) For from, the accounts providing funds for
mitigation banks, the instrument must financial assurances and long-term
contain a provision requiring the spon- management activities. The report
sor to establish and maintain a ledger should also include information on the
to account for all credit transactions. amount of required financial assur-
Each time an approved credit trans- ances and the status of those assur-
action occurs, the sponsor must notify ances, including their potential expira-
the district engineer. tion.
(2) For in-lieu fee programs, the in- (r) Use of credits. Except as provided
strument must contain a provision re- below, all activities authorized by DA
quiring the sponsor to establish and permits are eligible, at the discretion
maintain an annual report ledger in ac- of the district engineer, to use mitiga-
cordance with paragraph (i)(3) of this tion banks or in-lieu fee programs to
section, as well as individual ledgers fulfill compensatory mitigation re-
that track the production of released
quirements for DA permits. The dis-
credits for each in-lieu fee project.
trict engineer will determine the num-
(q) Reporting. (1) Ledger account. The
ber and type(s) of credits required to
sponsor must compile an annual ledger
compensate for the authorized impacts.
report showing the beginning and end-
Permit applicants may propose to use a
ing balance of available credits and
particular mitigation bank or in-lieu
permitted impacts for each resource
fee program to provide the required
type, all additions and subtractions of
credits, and any other changes in cred- compensatory mitigation. In such
it availability (e.g., additional credits cases, the sponsor must provide the
released, credit sales suspended). The permit applicant with a statement of
ledger report must be submitted to the credit availability. The district engi-
district engineer, who will distribute neer must review the permit appli-
copies to the IRT members. The ledger cant’s compensatory mitigation pro-
report is part of the administrative posal, and notify the applicant of his
record for the mitigation bank or in- determination regarding the accept-
lieu fee program. The district engineer ability of using that mitigation bank
will make the ledger report available or in-lieu fee program.
to the public upon request. (s) IRT concerns with use of credits. If,
(2) Monitoring reports. The sponsor is in the view of a member of the IRT, an
responsible for monitoring the mitiga- issued permit or series of issued per-
tion bank site or the in-lieu fee project mits raises concerns about how credits
site in accordance with the approved from a particular mitigation bank or
monitoring requirements to determine in-lieu fee program are being used to
the level of success and identify prob- satisfy compensatory mitigation re-
lems requiring remedial action or quirements (including concerns about
adaptive management measures. Moni- whether credit use is consistent with
toring must be conducted in accord- the terms of the instrument), the IRT
ance with the requirements in § 230.96, member may notify the district engi-
and at time intervals appropriate for neer in writing of the concern. The dis-
the particular project type and until trict engineer shall promptly consult
such time that the district engineer, in with the IRT to address the concern.
consultation with the IRT, has deter- Resolution of the concern is at the dis-
mined that the performance standards cretion of the district engineer, con-
have been attained. The instrument sistent with applicable statutes, regu-
must include requirements for periodic lations, and policies regarding compen-
monitoring reports to be submitted to satory mitigation requirements for DA
the district engineer, who will provide permits. Nothing in this section limits
copies to other IRT members. the authorities designated to IRT agen-

(3) Financial assurance and long-term cies under existing statutes or regula-
management funding report. The district tions.
308
(t) Site protection. (1) For mitigation authorization of additional sites under
bank sites, real estate instruments, an umbrella mitigation banking instru-
management plans, or other long-term ment, expansion of an existing site, or
mechanisms used for site protection addition of a different type of resource
must be finalized before any credits credits (e.g., stream credits to a wet-
can be released. land bank) must be consistent with the
(2) For in-lieu fee project sites, real terms of this part.
estate instruments, management plans, (2) In-lieu fee program instruments. All
or other long-term protection mecha- in-lieu fee program instruments ap-
nisms used for site protection must be proved on or after July 9, 2008 must
finalized before advance credits can be- meet the requirements of this part. In-
come released credits. lieu fee programs operating under in-
(u) Long-term management. (1) The struments approved prior to July 9,
legal mechanisms and the party re- 2008 may continue to operate under
sponsible for the long-term manage- those instruments for two years after
ment and the protection of the mitiga- the effective date of this rule, after
tion bank site must be documented in which time they must meet the re-
the instrument or, in the case of um- quirements of this part, unless the dis-
brella mitigation banking instruments trict engineer determines that cir-
and in-lieu fee programs, the approved cumstances warrant an extension of up
mitigation plans. The responsible party to three additional years. The district
should make adequate provisions for engineer must consult with the IRT be-
the operation, maintenance, and long- fore approving such extensions. Any re-
term management of the compensatory visions made to the in-lieu-fee program
mitigation project site. The long-term instrument on or after July 9, 2008
management plan should include a de- must be consistent with the terms of
scription of long-term management this part. Any approved project for
needs and identify the funding mecha- which construction was completed
nism that will be used to meet those under the terms of a previously ap-
needs. proved instrument may continue to op-
(2) The instrument may contain pro- erate indefinitely under those terms if
visions for the sponsor to transfer long- the district engineer determines that
term management responsibilities to a the project is providing appropriate
land stewardship entity, such as a pub- mitigation substantially consistent
lic agency, non-governmental organiza- with the terms of this part.
tion, or private land manager.
(3) The instrument or approved miti- PART 231—SECTION 404(c)
gation plan must address the financial PROCEDURES
arrangements and timing of any nec-
essary transfer of long-term manage- Sec.
ment funds to the steward. 231.1 Purpose and scope.
(4) Where needed, the acquisition and 231.2 Definitions.
protection of water rights should be se- 231.3 Procedures for proposed determina-
cured and documented in the instru- tions.
ment or, in the case of umbrella miti- 231.4 Public comments and hearings.
gation banking instruments and in-lieu 231.5 Recommended determination.
231.6 Administrator’s final determinations.
fee programs, the approved mitigation
231.7 Emergency procedure.
site plan. 231.8 Extension of time.
(v) Grandfathering of existing instru-
ments. (1) Mitigation banking instru- AUTHORITY: 33 U.S.C. 1344(c).
ments. All mitigation banking instru- SOURCE: 44 FR 58082, Oct. 9, 1979, unless
ments approved on or after July 9, 2008 otherwise noted.
must meet the requirements of this
part. Mitigation banks approved prior § 231.1 Purpose and scope.
to July 9, 2008 may continue to operate (a) The Regulations of this part in-
under the terms of their existing include the procedures to be followed by
struments. However, any modification the Environmental Protection agency

to such a mitigation banking instru- in prohibiting or withdrawing the spec-
ment on or after July 9, 2008, including ification, or denying, restricting, or
309
§ 231.2 40 CFR Ch. I (7–1–21 Edition)
withdrawing the use for specification, (3) The Administrator’s final deter-
of any defined area as a disposal site mination to affirm, modify or rescind
for dredged or fill material pursuant to the recommended determination after
section 404(c) of the Clean Water Act consultation with the Chief of Engi-
(‘‘CWA’’), 33 U.S.C. 1344(c). The U.S. neers or with the state.
Army Corps of Engineers or a state (c) Applicability: The regulations set
with a 404 program which has been ap- forth in this part are applicable when-
proved under section 404(h) may grant ever the Administrator is considering
permits specifying disposal sites for whether the specification of any de-
dredged or fill material by determining fined area as a disposal site should be
that the section 404(b)(1) Guidelines (40 prohibited, denied, restricted, or with-
CFR Part 230) allow specification of a drawn. These regulations apply to all
particular site to receive dredged or fill existing, proposed or potential disposal
material. The Corps may also grant sites for discharges of dredged or fill
permits by determining that the dis- material into waters of the United
charge of dredged or fill material is States, as defined in 40 CFR 230.2.
necessary under the economic impact
provision of section 404(b)(2). Under § 231.2 Definitions.
section 404(c), the Administrator may
exercise a veto over the specification For the purposes of this part, the
by the U.S. Army Corps of Engineers or definitions of terms in 40 CFR 230.2
by a state of a site for the discharge of shall apply. In addition, the term:
dredged or fill material. The Adminis- (a) Withdraw specification means to
trator may also prohibit the specifica- remove from designation any area al-
tion of a site under section 404(c) with ready specified as a disposal site by the
regard to any existing or potential dis- U.S. Army Corps of Engineers or by a
posal site before a permit application state which has assumed the section
has been submitted to or approved by 404 program, or any portion of such
the Corps or a state. The Adminis- area.
trator is authorized to prohibit or oth- (b) Prohibit specification means to pre-
erwise restrict a site whenever he de- vent the designation of an area as a
termines that the discharge of dredged present or future disposal site.
or fill material is having or will have (c) Deny or restrict the use of any de-
an ‘‘unacceptable adverse effect’’ on fined area for specification is to deny or
municipal water supplies, shellfish restrict the use of any area for the
beds and fishery areas (including present or future discharge of any
spawning and breeding areas), wildlife, dredged or fill material.
or recreational areas. In making this (d) Person means an individual, cor-
determination, the Administrator will
poration, partnership, association, Fed-
take into account all information
eral agency, state, municipality, or
available to him, including any written
commission, or political subdivision of
determination of compliance with the
section 404(b)(1) Guidelines made in 40 a state, or any interstate body.
CFR part 230, and will consult with the (e) Unacceptable adverse effect means
Chief of Engineers or with the state. impact on an aquatic or wetland eco-
(b) These regulations establish proce- system which is likely to result in sig-
dures for the following steps: nificant degradation of municipal
(1) The Regional Administrator’s pro- water supplies (including surface or
posed determinations to prohibit or ground water) or significant loss of or
withdraw the specification of a defined damage to fisheries, shellfishing, or
area as a disposal site, or to deny, re- wildlife habitat or recreation areas. In
strict or withdraw the use of any de- evaluating the unacceptability of such
fined area for the discharge of any par- impacts, consideration should be given
ticular dredged or fill material; to the relevant portions of the section
(2) The Regional Administrator’s rec- 404(b)(1) guidelines (40 CFR part 230).
ommendation to the Administrator for (f) State means any state agency ad-
determination as to the specification ministering a 404 program which has
of a defined area as a disposal site. been approved under section 404(h).
310
§ 231.3 Procedures for proposed deter- (b) Public notice of every proposed
minations. determination and notice of all public
(a) If the Regional Administrator has hearings shall be given by the Regional
reason to believe after evaluating the Administrator. Every public notice
information available to him, includ- shall contain, at a minimum:
ing any record developed under the sec- (1) An announcement that the Re-
tion 404 referral process specified in 33 gional Administrator has proposed a
CFR 323.5(b), that an ‘‘unacceptable ad- determination to prohibit or withdraw
verse effect’’ could result from the specification, or to deny, restrict, or
specification or use for specification of withdraw the use for specification, of
a defined area for the disposal of an area as a disposal site, including a
dredged or fill material, he may ini- summary of the facts on which the pro-
tiate the following actions: posed determination is based;
(1) The Regional Administrator will (2) The location of the existing, pro-
notify the District Engineer or the posed or potential disposal site, and a
state, if the site is covered by an ap- summary of its characteristics;
proved state program, the owner of (3) A summary of information con-
record of the site, and the applicant, if cerning the nature of the proposed dis-
any, in writing that the Regional Ad- charge, where applicable;
ministrator intends to issue a public (4) The identity of the permit appli-
notice of a proposed determination to cant, if any;
prohibit or withdraw the specification, (5) A brief description of the right to,
or to deny, restrict or withdraw the use and procedures for requesting, a public
for specification, whichever the case hearing; and
may be, of any defined area as a (6) The address and telephone number
disposal site. of the office where interested persons
(2) If within 15 days of receipt of the may obtain additional information, in-
Regional Administrator’s notice under cluding copies of the proposed deter-
paragraph (a)(1) of this section, it has mination; and
not been demonstrated to the satisfac- (7) Such additional statements, rep-
tion of the Regional Administrator resentations, or information as the
that no unacceptable adverse effect(s) Regional Administrator considers
will occur or the District Engineer or necessary or proper.
state does not notify the Regional Ad- (c) In addition to the information re-
ministrator of his intent to take cor- quired under paragraph (b) of this sec-
rective action to prevent an unaccept- tion, public notice of a public hearing
able adverse effect satisfactory to the held under § 231.4 shall contain the
Regional Administrator, the Regional following information:
Administrator shall publish notice of a (1) Reference to the date of public no-
proposed determination in accordance tice of the proposed determination;
with the procedures of this section. (2) Date, time and place of the hear-
Where the Regional Administrator has ing; and
notified the District Engineer under (3) A brief description of the nature
paragraph (a)(1) of this section that he and purpose of the hearing including
is considering exercising section 404(c) the applicable rules and procedures.
authority with respect to a particular (d) The following procedures for giv-
disposal site for which a permit appli- ing public notice of the proposed deter-
cation is pending but for which no per- mination or of a public hearing shall be
mit has been issued, the District Engi- followed:
neer, in accordance with 33 CFR 325.8, (1) Publication at least once in a
shall not issue the permit until final daily or weekly newspaper of general
action is taken under this part. circulation in the area in which the de-
fined area is located. In addition the
COMMENT: In cases involving a proposed Regional Administrator may (i) post a
disposal site for which a permit application
copy of the notice at the principal of-
is pending, it is anticipated that the proce-
dures of the section 404 referral process will fice of the municipality in which the
normally be exhausted prior to any final defined area is located, or if the defined
decision of whether to initiate a 404(c) area is not located near a sizeable com-
proceeding. munity, at the principal office of the
311
§ 231.4 40 CFR Ch. I (7–1–21 Edition)
political subdivision (State, county or vided for in paragraph (a) of this sec-
local, whichever is appropriate) with tion. If no public hearing is held the
general jurisdiction over the area in Regional Administrator shall notify
which the disposal site is located, and any persons who requested a hearing of
(ii) post a copy of the notice at the the reasons for that decision. Where
United States Post Office serving that practicable, hearings shall be con-
area. ducted in the vicinity of the affected
(2) A copy of the notice shall be site.
mailed to the owner of record of the (c) Hearings held under this section
site, to the permit applicant or permit shall be conducted by the Regional Ad-
holder, if any, to the U.S. Fish and ministrator, or his designee, in an or-
Wildlife Service, National Marine Fish- derly and expeditious manner. A record
eries Service and any other interested of the proceeding shall be made by
Federal and State water pollution con- either tape recording or verbatim
trol and resource agencies, and to any transcript.
person who has filed a written request (d) Any person may appear at the
with the Regional Administrator to re- hearing and submit oral or written
ceive copies of notices relating to sec- statements and data and may be rep-
tion 404(c) determinations; resented by counsel or other authorized
(3) A copy of the notice shall be representative. Any person may
mailed to the appropriate District and present written statements for the
Division Engineer(s) and state; hearing file prior to the time the hear-
(4) The notice will also be published
ing file is closed to public submissions,
in the FEDERAL REGISTER.
and may present proposed findings and
§ 231.4 Public comments and hearings. recommendations. The Regional Ad-
ministrator or his designee shall afford
(a) The Regional Administrator shall the participants an opportunity for
provide a comment period of not less rebuttal.
than 30 or more than 60 days following
(e) The Regional Administrator, or
the date of public notice of the pro-
his designee, shall have discretion to
posed determination. During this pe-
establish reasonable limits on the na-
riod any interested persons may sub-
mit written comments on the proposed ture, amount or form of presentation of
determination. Comments should be di- documentary material and oral presen-
rected to whether the proposed deter- tations. No cross examination of any
mination should become the final de- hearing participant shall be permitted,
termination and corrective action that although the Regional Administrator,
could be taken to reduce the adverse or his designee, may make appropriate
impact of the discharge. All such com- inquiries of any such participant.
ments shall be considered by the Re- (f) The Regional Administrator or his
gional Administrator or his designee in designee shall allow a reasonable time
preparing his recommended determina- not to exceed 15 days after the close of
tion in § 231.5. the public hearing for submission of
(b) Where the Regional Adminis- written comments. After such time has
trator finds a significant degree of pub- expired, unless such period is extended
lic interest in a proposed determina- by the Regional Administrator or his
tion or that it would be otherwise in designee for good cause, the hearing
the public interest to hold a hearing, or file shall be closed to additional public
if an affected landowner or permit ap- written comments.
plicant or holder requests a hearing, he (g) No later than the time a public
or his designee shall hold a public hear- notice of proposed determination is
ing. Public notice of that hearing shall issued, a Record Clerk shall be des-
be given as specified in § 231.3(c). No ignated with responsibility for main-
hearing may be held prior to 21 days taining the administrative record iden-
after the date of the public notice. The tified in § 231.5(e). Copying of any docu-
hearing may be scheduled either by the ments in the record shall be permitted
Regional Administrator at his own ini- under appropriate arrangements to pre-

tiative, or in response to a request re- vent their loss. The charge for such
ceived during the comment period pro- copies shall be in accordance with the
312
written schedule contained in part 2 of review of a recommended determina-

this chapter. tion under § 231.6, final agency action
does not occur until the Administrator
§ 231.5 Recommended determination. makes a final determination.
(a) The Regional Administrator or (d) Any recommended determination
his designee shall, within 30 days after under paragraph (b) of this section
the conclusion of the public hearing shall include the following:
(but not before the end of the comment (1) A summary of the unacceptable
period), or, if no hearing is held, within adverse effects that could occur from
15 days after the expiration of the com- use of the disposal site for the proposed
ment period on the public notice of the discharge;
proposed determination, either with- (2) Recommendations regarding a
draw the proposed determination or final determination to prohibit, deny,
prepare a recommended determination restrict, or withdraw, which shall con-
to prohibit or withdraw specification, firm or modify the proposed determina-
or to deny, restrict, or withdraw the tion, with a statement of reasons.
use for specification, of the disposal (e) The administrative record shall
site because the discharge of dredged or consist of the following:
fill material at such site would be (1) A copy of the proposed deter-
likely to have an unacceptable adverse mination, public notice, written com-
effect. ments on the public notice and written
(b) Where a recommended determina- submissions in the hearing file;
tion is prepared, the Regional Adminis- (2) A transcript or recording of the
trator or his designee shall promptly public hearing, where a hearing was
forward the recommended determina- held;
tion and administrative record to the (3) The recommended determination;
Administrator for review, with a copy (4) Where possible a copy of the
of the recommended determination to record of the Corps or the state
the Assistant Administrator for Water pertaining to the site in question;
and Waste Management. (5) Any other information considered
(c) Where the Regional Adminis- by the Regional Administrator or his
trator, or his designee, decides to with- designee.
draw the proposed determination, he
shall promptly notify the Adminis- § 231.6 Administrator’s final deter-
trator by mail, with a copy to the As- minations.
sistant Administrator for Water and After reviewing the recommenda-
Waste Management, who shall have 10 tions of the Regional Administrator or
days from receipt of such notice to no- his designee, the Administrator shall
tify the Regional Administrator of his within 30 days of receipt of the
intent to review such withdrawal. Cop- recommendations and administrative
ies of the notification shall be sent to record initiate consultation with the
all persons who commented on the pro- Chief of Engineers, the owner of record,
posed determination or participated at and, where applicable, the State and
the hearing. Such persons may submit the applicant, if any. They shall have
timely written recommendations con- 15 days to notify the Administrator of
cerning review. their intent to take corrective action
(1) If the Administrator does not no- to prevent an unacceptable adverse ef-
tify him, the Regional Administrator fect(s), satisfactory to the Adminis-
shall give notice at the withdrawal of trator. Within 60 days of receipt of the
the proposed determination as provided recommendations and record, the Ad-
in § 231.3(d). Such notice shall con- ministrator shall make a final deter-
stitute final agency action. mination affirming, modifying, or re-
(2) If the Administrator does decide scinding the recommended determina-
to review, the Regional Administrator tion. The final determination shall de-
or his designee shall forward the ad- scribe the satisfactory corrective ac-
ministrative record to the Adminis- tion, if any, make findings, and state
trator for a final determination under the reasons for the final determination.
§ 231.6. Where there is review of a with- Notice of such final determination
drawal of proposed determination or shall be published as provided in § 231.3,
313
§ 231.7 40 CFR Ch. I (7–1–21 Edition)
and shall be given to all persons who charges of dredged or fill material.
participated in the public hearing. No- These definitions apply to both the fed-
tice of the Administrator’s final deter- erally operated program and State ad-
mination shall also be published in the ministered programs after program ap-
FEDERAL REGISTER. For purposes of ju- proval. This part also describes those
dicial review, a final determination activities which are exempted from
constitutes final agency action under regulation. Regulations prescribing the
section 404(c) of the Act. substantive environmental criteria for
issuance of section 404 permits appear
§ 231.7 Emergency procedure. at 40 CFR part 230. Regulations estab-
Where a permit has already been lishing procedures to be followed by
issued, and the Administrator has rea- the EPA in denying or restricting a
son to believe that a discharge under disposal site appear at 40 CFR part 231.
the permit presents an imminent dan- Regulations containing the procedures
ger of irreparable harm to municipal and policies used by the Corps in ad-
water supplies, shellfish beds and fish- ministering the 404 program appear at
ery areas (including spawning and 33 CFR parts 320–330. Regulations speci-
breeding areas) wildlife, or recreational fying the procedures EPA will follow,
areas, and that the public health, in- and the criteria EPA will apply in ap-
terest, or safety requires, the Adminis- proving, monitoring, and withdrawing
trator may ask the Chief of Engineers approval of section 404 State programs
to suspend the permit under 33 CFR appear at 40 CFR part 233.
325.7, or the state, pending completion
of proceedings under Part 231. The Ad- § 232.2 Definitions.
ministrator may also take appropriate Administrator means the Adminis-
action as authorized under section 504 trator of the Environmental Protection
of the Clean Water Act. If a permit is Agency or an authorized representa-
suspended, the Administrator and Re- tive.
gional Administrator (or his designee) Application means a form for applying
may, where appropriate, shorten the for a permit to discharge dredged or fill
times allowed by these regulations to material into waters of the United
take particular actions. States.
Approved program means a State pro-
§ 231.8 Extension of time. gram which has been approved by the
The Administrator or the Regional Regional Administrator under part 233
Administrator may, upon a showing of of this chapter or which is deemed ap-
good cause, extend the time require- proved under section 404(h)(3), 33 U.S.C.
ments in these regulations. Notice of 1344(h)(3).
any such extension shall be published Best management practices (BMPs)
in the FEDERAL REGISTER and, as ap- means schedules of activities, prohibi-
propriate, through other forms of tions of practices, maintenance proce-
notice. dures, and other management practices
to prevent or reduce the pollution of
PART 232—404 PROGRAM DEFINI- waters of the United States from dis-
charges of dredged or fill material.
TIONS; EXEMPT ACTIVITIES NOT BMPs include methods, measures, prac-
REQUIRING 404 PERMITS tices, or design and performance stand-
ards which facilitate compliance with
Sec. the section 404(b)(1) Guidelines (40 CFR
232.1 Purpose and scope of this part.
232.2 Definitions.
part 230), effluent limitations or prohi-
232.3 Activities not requiring permits. bitions under section 307(a), and appli-
cable water quality standards.
AUTHORITY: 33 U.S.C. 1251 et seq. Discharge of dredged material. (1) Ex-
SOURCE: 53 FR 20773, June 6, 1988, unless cept as provided below in paragraph (2),
otherwise noted. the term discharge of dredged material
means any addition of dredged mate-
§ 232.1 Purpose and scope of this part. rial into, including redeposit of
Part 232 contains definitions applica- dredged material other than incidental
ble to the section 404 program for dis- fallback within, the waters of the
314
United States. The term includes, but ing any area of waters of the United
is not limited to, the following: States, as defined in paragraphs (4) and
(i) The addition of dredged material (5) of this definition. The person pro-
to a specified discharge site located in posing to undertake mechanized
waters of the United States; landclearing, ditching, channelization
(ii) The runoff or overflow, associated or other excavation activity bears the
with a dredging operation, from a con- burden of demonstrating that such ac-
tained land or water disposal area; and tivity would not destroy or degrade
(iii) Any addition, including rede- any area of waters of the United
posit other than incidental fallback, of States.
dredged material, including excavated (ii) Incidental movement of dredged
material, into waters of the United material occurring during normal
States which is incidental to any activ- dredging operations, defined as dredg-
ity, including mechanized landclearing, ing for navigation in navigable waters of
ditching, channelization, or other exca- the United States, as that term is de-
vation. fined in 33 CFR part 329, with proper
(2) The term discharge of dredged ma- authorization from the Congress or the
terial does not include the following: Corps pursuant to 33 CFR part 322;
(i) Discharges of pollutants into however, this exception is not applica-
waters of the United States resulting ble to dredging activities in wetlands,
from the onshore subsequent proc- as that term is defined at § 232.2(r) of
essing of dredged material that is ex- this chapter.
tracted for any commercial use (other (iii) Certain discharges, such as those
than fill). These discharges are subject associated with normal farming,
to section 402 of the Clean Water Act silviculture, and ranching activities,
even though the extraction and deposit are not prohibited by or otherwise sub-
of such material may require a permit ject to regulation under Section 404.
from the Corps or applicable state. See 40 CFR 232.3 for discharges that do
(ii) Activities that involve only the not require permits.
cutting or removing of vegetation (4) For purposes of this section, an
above the ground (e.g., mowing, rotary activity associated with a discharge of
cutting, and chainsawing) where the dredged material destroys an area of
activity neither substantially disturbs waters of the United States if it alters
the root system nor involves mecha- the area in such a way that it would no
nized pushing, dragging, or other simi- longer be a water of the United States.
lar activities that redeposit excavated NOTE: Unauthorized discharges into waters
soil material. of the United States do not eliminate Clean
(iii) Incidental fallback. Water Act jurisdiction, even where such un-
(3) Section 404 authorization is not authorized discharges have the effect of de-
stroying waters of the United States.
required for the following:
(i) Any incidental addition, including (5) For purposes of this section, an
redeposit, of dredged material associ- activity associated with a discharge of
ated with any activity that does not dredged material degrades an area of
have or would not have the effect of de- waters of the United States if it has
stroying or degrading an area of waters more than a de minimis (i.e., incon-
of the U.S. as defined in paragraphs (4) sequential) effect on the area by caus-
and (5) of this definition; however, this ing an identifiable individual or cumu-
exception does not apply to any person lative adverse effect on any aquatic
preparing to undertake mechanized function.
landclearing, ditching, channelization Discharge of fill material. (1) The term
and other excavation activity in a discharge of fill material means the addi-
water of the United States, which tion of fill material into waters of the
would result in a redeposit of dredged United States. The term generally in-
material, unless the person dem- cludes, without limitation, the fol-
onstrates to the satisfaction of the lowing activities: Placement of fill
Corps, or EPA as appropriate, prior to that is necessary for the construction
commencing the activity involving the of any structure or infrastructure in a

discharge, that the activity would not water of the United States; the build-
have the effect of destroying or degrading of any structure, infrastructure, or
315
§ 232.2 40 CFR Ch. I (7–1–21 Edition)
impoundment requiring rock, sand, that term is defined in 33 CFR part 329,
dirt, or other material for its construc- require authorization under section 10
tion; site-development fills for rec- of the Rivers and Harbors Act of 1899
reational, industrial, commercial, resi- (see 33 CFR part 322).
dential, or other uses; causeways or (ii) [Reserved]
road fills; dams and dikes; artificial is- Dredged material means material that
lands; property protection and/or rec- is excavated or dredged from waters of
lamation devices such as riprap, groins, the United States.
seawalls, breakwaters, and revetments; Effluent means dredged material or
beach nourishment; levees; fill for fill material, including return flow
structures such as sewage treatment from confined sites.
facilities, intake and outfall pipes asso- Federal Indian reservation means all
ciated with power plants and sub- land within the limits of any Indian
aqueous utility lines; placement of fill reservation under the jurisdiction of
material for construction or mainte- the United States Government, not-
nance of any liner, berm, or other in- withstanding the issuance of any pat-
frastructure associated with solid ent, and including rights-of-way run-
waste landfills; placement of overbur- ning through the reservation.
den, slurry, or tailings or similar min- Fill material. (1) Except as specified in
ing-related materials;’’ after the words paragraph (3) of this definition, the
‘‘utility lines; and artificial reefs. term fill material means material
(2) In addition, placement of pilings placed in waters of the United States
in waters of the United States con- where the material has the effect of:
stitutes a discharge of fill material and (i) Replacing any portion of a water
requires a Section 404 permit when of the United States with dry land; or
such placement has or would have the (ii) Changing the bottom elevation of
effect of a discharge of fill material. any portion of a water of the United
Examples of such activities that have States.
the effect of a discharge of fill material (2) Examples of such fill material in-
include, but are not limited to, the fol- clude, but are not limited to: rock,
lowing: Projects where the pilings are sand, soil, clay, plastics, construction
so closely spaced that sedimentation debris, wood chips, overburden from
rates would be increased; projects in mining or other excavation activities,
which the pilings themselves effec- and materials used to create any struc-
tively would replace the bottom of a ture or infrastructure in the waters of
waterbody; projects involving the the United States.
placement of pilings that would reduce (3) The term fill material does not in-
the reach or impair the flow or circula- clude trash or garbage.
tion of waters of the United States; and General permit means a permit au-
projects involving the placement of pil- thorizing a category of discharges of
ings which would result in the adverse dredged or fill material under the Act.
alteration or elimination of aquatic General permits are permits for cat-
functions. egories of discharge which are similar
(i) Placement of pilings in waters of in nature, will cause only minimal ad-
the United States that does not have or verse environmental effects when per-
would not have the effect of a dis- formed separately, and will have only
charge of fill material shall not require minimal cumulative adverse effect on
a Section 404 permit. Placement of pil- the environment.
ings for linear projects, such as Indian Tribe means any Indian Tribe,
bridges, elevated walkways, and band, group, or community recognized
powerline structures, generally does by the Secretary of the Interior and ex-
not have the effect of a discharge of fill ercising governmental authority over a
material. Furthermore, placement of Federal Indian reservation.
pilings in waters of the United States Owner or operator means the owner or
for piers, wharves, and an individual operator of any activity subject to reg-
house on stilts generally does not have ulation under the 404 program.
the effect of a discharge of fill mate- Permit means a written authorization

rial. All pilings, however, placed in the issued by an approved State to imple-
navigable waters of the United States, as ment the requirements of part 233, or
316
by the Corps under 33 CFR parts 320– § 232.3 Activities not requiring per-
330. When used in these regulations, mits.
‘‘permit’’ includes ‘‘general permit’’ as Except as specified in paragraphs (a)
well as individual permit. and (b) of this section, any discharge of
Person means an individual, associa- dredged or fill material that may re-
tion, partnership, corporation, munici- sult from any of the activities de-
pality, State or Federal agency, or an scribed in paragraph (c) of this section
agent or employee thereof. is not prohibited by or otherwise sub-
Regional Administrator means the Re- ject to regulation under this part.
gional Administrator of the appro- (a) If any discharge of dredged or fill
priate Regional Office of the Environ- material resulting from the activities
mental Protection Agency or the au- listed in paragraph (c) of this section
thorized representative of the Regional contains any toxic pollutant listed
Administrator. under section 307 of the Act, such dis-
Secretary means the Secretary of the charge shall be subject to any applica-
Army acting through the Chief of ble toxic effluent standard or prohibi-
Engineers. tion, and shall require a section 404
State means any of the 50 States, the permit.
District of Columbia, Guam, the Com- (b) Any discharge of dredged or fill
monwealth of Puerto Rico, the Virgin material into waters of the United
Islands, American Samoa, the Com- States incidental to any of the activi-
monwealth of the Northern Mariana Is- ties identified in paragraph (c) of this
lands, the Trust Territory of the Pa- section must have a permit if it is part
cific Islands, or an Indian Tribe as de- of an activity whose purpose is to con-
fined in this part, which meet the re- vert an area of the waters of the United
quirements of § 233.60. States into a use to which it was not
State regulated waters means those previously subject, where the flow or
waters of the United States in which circulation of waters of the United
the Corps suspends the issuance of sec- States may be impaired or the reach of
tion 404 permits upon approval of a such waters reduced. Where the pro-
State’s section 404 permit program by posed discharge will result in signifi-
the Administrator under section 404(h). cant discernable alterations to flow or
The program cannot be transferred for circulation, the presumption is that
those waters which are presently used, flow or circulation may be impaired by
or are susceptible to use in their nat- such alteration.
ural condition or by reasonable im- NOTE: For example, a permit will be re-
provement as a means to transport quired for the conversion of a cypress swamp
interstate or foreign commerce shore- to some other use or the conversion of a wet-
ward to their ordinary high water land from silvicultural to agricultural use
mark, including all waters which are when there is a discharge of dredged or fill
material into waters of the United States in
subject to the ebb and flow of the tide
conjunction with constuction of dikes, drain-
shoreward to the high tide line, includ- age ditches or other works or structures used
ing wetlands adjacent thereto. All to effect such conversion. A conversion of
other waters of the United States in a section 404 wetland to a non-wetland is a
State with an approved program shall change in use of an area of waters of the U.S.
be under jurisdiction of the State pro- A discharge which elevates the bottom of
gram, and shall be identified in the waters of the United States without con-
program description as required by verting it to dry land does not thereby re-
duce the reach of, but may alter the flow or
part 233. circulation of, waters of the United States.
Waters of the United States means the
term as it is defined in § 120.2 of this (c) The following activities are ex-
chapter. empt from section 404 permit require-
ments, except as specified in para-
[53 FR 20773, June 6, 1988, as amended at 58 graphs (a) and (b) of this section:
FR 8182, Feb. 11, 1993; 58 FR 45037, Aug. 25,
(1)(i) Normal farming, silviculture
1993; 64 FR 25123, May 10, 1999; 66 FR 4575,
Jan. 17, 2001; 67 FR 31142, May 9, 2002; 73 FR and ranching activities such as plow-
79645, Dec. 30, 2008; 80 FR 37117, June 29, 2015; ing, seeding, cultivating, minor drain-
83 FR 5209, Feb. 6, 2018; 84 FR 56670, Oct. 22, age, and harvesting for the production
2019; 85 FR 22341, Apr. 21, 2020] of food, fiber, and forest products, or
317
§ 232.3 40 CFR Ch. I (7–1–21 Edition)
upland soil and water conservation erection of buildings, roads, and other
practices, as defined in paragraph (d) of discrete structures and the installation
this section. of support facilities necessary for con-
(ii)(A) To fall under this exemption, struction and utilization of such struc-
the activities specified in paragraph tures. The term also includes any other
(c)(1) of this section must be part of an land areas which involve land-dis-
established (i.e., ongong) farming, turbing excavation activities, includ-
silviculture, or ranching operation, and ing quarrying or other mining activi-
must be in accordance with definitions ties, where an increase in the runoff of
in paragraph (d) of this section. Activi- sediment is controlled through the use
ties on areas lying fallow as part of a of temporary sedimentation basins.
conventional rotational cycle are part (5) Any activity with respect to
of an established operation. which a State has an approved program
(B) Activities which bring an area under section 208(b)(4) of the Act which
into farming, silviculture or ranching meets the requirements of section
use are not part of an established oper- 208(b)(4)(B) and (C).
ation. An operation ceases to be estab- (6) Construction or maintenance of
lished when the area in which it was farm roads, forest roads, or temporary
conducted has been converted to an- roads for moving mining equipment,
other use or has lain idle so long that where such roads are constructed and
modifications to the hydrological re- maintained in accordance with best
gime are necessary to resume oper- management practices (BMPs) to as-
ation. If an activity takes place outside sure that flow and circulation patterns
the waters of the United States, or if it and chemical and biological character-
does not involve a discharge, it does istics of waters of the United States
not need a section 404 permit whether are not impaired, that the reach of the
or not it was part of an established waters of the United States is not re-
farming, silviculture or ranching duced, and that any adverse effect on
operation. the aquatic environment will be other-
(2) Maintenance, including emer- wise minimized. The BMPs which must
gency reconstruction of recently dam- be applied to satisfy this provision in-
aged parts, of currently serviceable clude the following baseline provisions:
structures such as dikes, dams, levees, (i) Permanent roads (for farming or
groins, riprap, breakwaters, causeways, forestry activities), temporary access
bridge abutments or approaches, and roads (for mining, forestry, or farm
transportation structures. Mainte- purposes) and skid trails (for logging)
nance does not include any modifica- in waters of the United States shall be
tion that changes the character, scope, held to the minimum feasible number,
or size of the original fill design. Emer- width, and total length consistent with
gency reconstruction must occur with- the purpose of specific farming,
in a reasonable period of time after silvicultural or mining operations, and
damage occurs in order to qualify for local topographic and climatic
this exemption. conditions;
(3) Construction or maintenance of (ii) All roads, temporary or perma-
farm or stock ponds or irrigation nent, shall be located sufficiently far
ditches or the maintenance (but not from streams or other water bodies (ex-
construction) of drainage ditches. Dis- cept for portions of such roads which
charge associated with siphons, pumps, must cross water bodies) to minimize
headgates, wingwalls, wiers, diversion discharges of dredged or fill material
structures, and such other facilities as into waters of the United States;
are appurtenant and functionally re- (iii) The road fill shall be bridged,
lated to irrigation ditches are included culverted, or otherwise designed to pre-
in this exemption. vent the restriction of expected flood
(4) Construction of temporary sedi- flows;
mentation basins on a construction (iv) The fill shall be properly sta-
site which does not include placement bilized and maintained to prevent ero-
of fill material into waters of the sion during and following construction;
United States. The term ‘‘construction (v) Discharges of dredged or fill ma-
site’’ refers to any site involving the terial into waters of the United States
318
to construct a road fill shall be made in clude the construction of farm, forest,
a manner that minimizes the encroach- or ranch roads.
ment of trucks, tractors, bulldozers, or (3)(i) Minor drainage means:
other heavy equipment within the (A) The discharge of dredged or fill
waters of the United States (including material incidental to connecting up-
adjacent wetlands) that lie outside the land drainage facilities to waters of the
lateral boundaries of the fill itself; United States, adequate to effect the
(vi) In designing, constructing, and removal of excess soil moisture from
maintaining roads, vegetative disturb- upland croplands. Construction and
ance in the waters of the United States maintenance of upland (dryland) facili-
shall be kept to a minimum; ties, such as ditching and tiling, inci-
(vii) The design, construction and dental to the planting, cultivating,
maintenance of the road crossing shall protecting, or harvesting of crops, in-
not disrupt the migration or other volve no discharge of dredged or fill
movement of those species of aquatic material into waters of the United
life inhabiting the water body; States, and as such never require a sec-
(viii) Borrow material shall be taken tion 404 permit;
from upland sources whenever feasible; (B) The discharge of dredged or fill
(ix) The discharge shall not take, or material for the purpose of installing
jeopardize the continued existence of, a ditching or other water control facili-
threatened or endangered species as de- ties incidental to planting, cultivating,
fined under the Endangered Species protecting, or harvesting of rice, cran-
Act, or adversely modify or destroy the berries or other wetland crop species,
critical habitat of such species; where these activities and the dis-
(x) Discharges into breeding and charge occur in waters of the United
nesting areas for migratory waterfowl, States which are in established use for
spawning areas, and wetlands shall be such agricultural and silvicultural wet-
avoided if practical alternatives exist; land crop production;
(xi) The discharge shall not be lo- (C) The discharge of dredged or fill
cated in the proximity of a public material for the purpose of manipu-
water supply intake; lating the water levels of, or regulating
(xii) The discharge shall not occur in the flow or distribution of water with-
areas of concentrated shellfish in, existing impoundments which have
production; been constructed in accordance with
(xiii) The discharge shall not occur in applicable requirements of the Act, and
a component of the National Wild and which are in established use for the
Scenic River System; production or rice, cranberries, or
(xiv) The discharge of material shall other wetland crop species.
consist of suitable material free from NOTE: The provisions of paragraphs (d)(3)(i)
toxic pollutants in toxic amounts; and (B) and (C) of this section apply to areas that
(xv) All temporary fills shall be re- are in established use exclusively for wet-
moved in their entirety and the area land crop production as well as areas in es-
restored to its original elevation. tablished use for conventional wetland/non-
(d) For purpose of paragraph (c)(1) of wetland crop rotation (e.g., the rotations of
this section, cultivating, harvesting, rice and soybeans) where such rotation re-
minor drainage, plowing, and seeding sults in the cyclical or intermittent tem-
porary dewatering of such areas.
are defined as follows:
(1) Cultivating means physical meth- (D) The discharge of dredged or fill
ods of soil treatment employed within material incidental to the emergency
established farming, ranching and removal of sandbars, gravel bars, or
silviculture lands on farm, ranch, or other similar blockages which are
forest crops to aid and improve their formed during flood flows or other
growth, quality, or yield. events, where such blockages close or
(2) Harvesting means physical meas- constrict previously existing drainage-
ures employed directly upon farm, for- ways and, if not promptly removed,
est, or ranch crops within established would result in damage to or loss of ex-
agricultural and silvicultural lands to isting crops or would impair or prevent

bring about their removal from farm, the plowing, seeding, harvesting or cul-
forest, or ranch land, but does not in- tivating of crops on land in established
319
use for crop production. Such removal farm, ranch, or forest crops and in-
does not include enlarging or extending cludes the placement of soil beds for
the dimensions of, or changing the bot- seeds or seedlings on established farm
tom elevations of, the affected and forest lands.
drainageway as it existed prior to the (e) Federal projects which qualify
formation of the blockage. Removal under the criteria contained in section
must be accomplished within one year 404(r) of the Act are exempt from sec-
after such blockages are discovered in tion 404 permit requirements, but may
order to be eligible for exemption. be subject to other State or Federal re-
(ii) Minor drainage in waters of the quirements.
United States is limited to drainage
within areas that are part of an estab- PART 233—404 STATE PROGRAM
lished farming or silviculture oper- REGULATIONS
ation. It does not include drainage as-
sociated with the immediate or gradual Subpart A—General
conversion of a wetland to a non-wet-
land (e.g., wetland species to upland Sec.
species not typically adequate to life in 233.1 Purpose and scope.
saturated soil conditions), or conver- 233.2 Definitions.
233.3 Confidentiality of information.
sion from one wetland use to another 233.4 Conflict of interest.
(for example, silviculture to farming).
In addition, minor drainage does not Subpart B—Program Approval
include the construction of any canal,
233.10 Elements of a program submission.
ditch, dike or other waterway or struc- 233.11 Program description.
ture which drains or otherwise signifi- 233.12 Attorney General’s statement.
cantly modifies a stream, lake, swamp, 233.13 Memorandum of Agreement with Re-
bog or any other wetland or aquatic gional Administrator.
area constituting waters of the United 233.14 Memorandum of Agreement with the
States. Any discharge of dredged or fill Secretary.
material into the waters of the United 233.15 Procedures for approving State pro-
grams.
States incidental to the construction 233.16 Procedures for revision of State pro-
of any such structure or waterway grams.
requires a permit.
(4) Plowing means all forms of pri- Subpart C—Permit Requirements
mary tillage, including moldboard,
233.20 Prohibitions.
chisel, or wide-blade plowing, discing,
233.21 General permits.
harrowing, and similar physical means 233.22 Emergency permits.
used on farm, forest or ranch land for 233.23 Permit conditions.
the breaking up, cutting, turning over,
or stirring of soil to prepare it for the Subpart D—Program Operation
planting of crops. Plowing does not in-
233.30 Application for a permit.
clude the redistribution of soil, rock, 233.31 Coordination requirements.
sand, or other surficial materials in a 233.32 Public notice.
manner which changes any area of the 233.33 Public hearing.
waters of the United States to dryland. 233.34 Making a decision on the permit ap-
For example, the redistribution of sur- plication.
face materials by blading, grading, or 233.35 Issuance and effective date of permit.
233.36 Modification, suspension or revoca-
other means to fill in wetland areas is
tion of permits.
not plowing. Rock crushing activities 233.37 Signatures on permit applications
which result in the loss of natural and reports.
drainage characteristics, the reduction 233.38 Continuation of expiring permits.
of water storage and recharge capabili- 233.39 Electronic reporting.
ties, or the overburden of natural
water filtration capacities do not con- Subpart E—Compliance Evaluation and
stitute plowing. Plowing, as described Enforcement
above, will never involve a discharge of 233.40 Requirements for compliance evalua-
dredged or fill material. tion programs.

(5) Seeding means the sowing of seed 233.41 Requirements for enforcement au-
and placement of seedlings to produce thority.
320
Subpart F—Federal Oversight quirements which are more stringent

or from operating a program with
233.50 Review of and objection to State per-
mits.
greater scope, than required under this
233.51 Waiver of review. part. Where an approved State program
233.52 Program reporting. has a greater scope than required by
233.53 Withdrawal of program approval. Federal law, the additional coverage is
not part of the Federally approved pro-
Subpart G—Eligible Indian Tribes gram and is not subject to Federal
233.60 Requirements for eligibility. oversight or enforcement.
233.61 Determination of Tribal eligibility. NOTE: State assumption of the section 404
233.62 Procedures for processing an Indian program is limited to certain waters, as pro-
Tribe’s application. vided in section 404(g)(1). The Federal pro-
gram operated by the Corps of Engineers
Subpart H—Approved State Programs continues to apply to the remaining waters
233.70 Michigan. in the State even after program approval.
233.71 New Jersey. However, this does not restrict States from
regulating discharges of dredged or fill mate-
AUTHORITY: 33 U.S.C. 1251 et seq. rial into those waters over which the Sec-
SOURCE: 53 FR 20776, June 1, 1988, unless retary retains section 404 jurisdiction.
otherwise noted. (d) Any approved State Program
shall, at all times, be conducted in ac-
Subpart A—General cordance with the requirements of the
Act and of this part. While States may
§ 233.1 Purpose and scope. impose more stringent requirements,
(a) This part specifies the procedures they may not impose any less stringent
EPA will follow, and the criteria EPA requirements for any purpose.
will apply, in approving, reviewing, and
withdrawing approval of State pro- FR 8183, Feb. 11, 1993]
grams under section 404 of the Act.
(b) Except as provided in § 232.3, a § 233.2 Definitions.
State program must regulate all dis-
charges of dredged or fill material into The definitions in parts 230 and 232 as
waters regulated by the State under well as the following definitions apply
section 404(g)–(1). Partial State pro- to this part.
grams are not approvable under section Act means the Clean Water Act (33
404. A State’s decision not to assume U.S.C. 1251 et seq.).
existing Corps’ general permits does Corps means the U.S. Army Corps of
not constitute a partial program. The Engineers.
discharges previously authorized by Federal Indian reservation means all
general permit will be regulated by land within the limits of any Indian
State individual permits. However, in reservation under the jurisdiction of
many cases, States other than Indian the United States Government, not-
Tribes will lack authority to regulate withstanding the issuance of any pat-
activities on Indian lands. This lack of ent, and including rights-of-way run-
authority does not impair that State’s ning through the reservation.
ability to obtain full program approval FWS means the U.S. Fish and Wild-
in accordance with this part, i.e., in- life Service.
ability of a State which is not an In- Indian Tribe means any Indian Tribe,
dian Tribe to regulate activities on In- band, group, or community recognized
dian lands does not constitute a partial by the Secretary of the Interior and ex-
program. The Secretary of the Army ercising governmental authority over a
acting through the Corps of Engineers Federal Indian reservation.
will continue to administer the pro- Interstate agency means an agency of
gram on Indian lands if a State which two or more States established by or
is not an Indian Tribe does not seek under an agreement or compact ap-
and have authority to regulate activi- proved by the Congress, or any other
ties on Indian lands. agency of two or more States having

(c) Nothing in this part precludes a substantial powers or duties pertaining
State from adopting or enforcing re- to the control of pollution.
321
§ 233.3 40 CFR Ch. I (7–1–21 Edition)
NMFS means the National Marine § 233.4 Conflict of interest.

Fisheries Service. Any public officer or employee who
State means any of the 50 States, the has a direct personal or pecuniary in-
District of Columbia, Guam, the Com- terest in any matter that is subject to
monwealth of Puerto Rico, the Virgin decision by the agency shall make
Islands, American Samoa, the Com- known such interest in the official
monwealth of the Northern Mariana Is- records of the agency and shall refrain
lands, the Trust Territory of the Pa- from participating in any manner in
cific Islands, or an Indian Tribe, as de- such decision.
fined in this part, which meet the re-
quirements of § 233.60. For purposes of Subpart B—Program Approval
this part, the word State also includes
any interstate agency requesting pro- § 233.10 Elements of a program sub-
gram approval or administering an ap- mission.
proved program. Any State that seeks to administer a
State Director (Director) means the 404 program under this part shall sub-
chief administrative officer of any mit to the Regional Administrator at
State or interstate agency operating least three copies of the following:
an approved program, or the delegated (a) A letter from the Governor of the
representative of the Director. If re- State requesting program approval.
sponsibility is divided among two or (b) A complete program description,
more State or interstate agencies, Di- as set forth in § 233.11.
rector means the chief administrative (c) An Attorney General’s statement,
officer of the State or interstate agen- as set forth in § 233.12.
cy authorized to perform the particular (d) A Memorandum of Agreement
procedure or function to which ref- with the Regional Administrator, as
erence is made. set forth in § 233.13.
State 404 program or State program (e) A Memorandum of Agreement
means a State program which has been with the Secretary, as set forth in
approved by EPA under section 404 of § 233.14.
the Act to regulate the discharge of (f) Copies of all applicable State stat-
dredged or fill material into certain utes and regulations, including those
waters as defined in § 232.2(p). governing applicable State administra-
tive procedures.
FR 8183, Feb. 11, 1993] § 233.11 Program description.
The program description as required
§ 233.3 Confidentiality of information. under § 233.10 shall include:
(a) Any information submitted to (a) A description of the scope and
EPA pursuant to these regulations structure of the State’s program. The
may be claimed as confidential by the description should include extent of
submitter at the time of submittal and State’s jurisdiction, scope of activities
a final determination as to that claim regulated, anticipated coordination,
will be made in accordance with the scope of permit exemptions if any, and
procedures of 40 CFR part 2 and para- permit review criteria;
graph (c) of this section. (b) A description of the State’s per-
(b) Any information submitted to the mitting, administrative, judicial re-
Director may be claimed as confiden- view, and other applicable procedures;
tial in accordance with State law, sub- (c) A description of the basic organi-
ject to paragraphs (a) and (c) of this zation and structure of the State agen-
section. cy (agencies) which will have responsi-
bility for administering the program. If
(c) Claims of confidentiality for the
more than one State agency is respon-
following information will be denied: sible for the administration of the pro-
(1) The name and address of any per- gram, the description shall address the
mit applicant or permittee, responsibilities of each agency and how
(2) Effluent data, the agencies intend to coordinate ad-

(3) Permit application, and ministration and evaluation of the pro-
(4) Issued permit. gram;
322
(d) A description of the funding and the State agency in court on all mat-
manpower which will be available for ters pertaining to the State program.
program administration; (b) If a State seeks approval of a pro-
(e) An estimate of the anticipated gram covering activities on Indian
workload, e.g., number of discharges. lands, the statement shall contain an
(f) Copies of permit application analysis of the State’s authority over
forms, permit forms, and reporting such activities.
forms; (c) The State Attorney General’s
(g) A description of the State’s com- statement shall contain a legal anal-
pliance evaluation and enforcement ysis of the effect of State law regarding
programs, including a description of the prohibition on taking private prop-
how the State will coordinate its en- erty without just compensation on the
forcement strategy with that of the
successful implementation of the
Corps and EPA;
State’s program.
(h) A description of the waters of the
United States within a State over (d) In those States where more than
which the State assumes jurisdiction one agency has responsibility for ad-
under the approved program; a descrip- ministering the State program, the
tion of the waters of the United States statement must include certification
within a State over which the Sec- that each agency has full authority to
retary retains jurisdiction subsequent administer the program within its cat-
to program approval; and a comparison egory of jurisdiction and that the
of the State and Federal definitions of State, as a whole, has full authority to
wetlands. administer a complete State section
404 program.
NOTE: States should obtain from the Sec-
retary an identification of those waters of § 233.13 Memorandum of Agreement
the U.S. within the State over which the with Regional Administrator.
Corps retains authority under section 404(g)
of the Act. (a) Any State that seeks to admin-
(i) A description of the specific best ister a program under this part shall
management practices proposed to be submit a Memorandum of Agreement
used to satisfy the exemption provi- executed by the Director and the Re-
sions of section 404(f)(1)(E) of the Act gional Administrator. The Memo-
for construction or maintenance of randum of Agreement shall become ef-
farm roads, forest roads, or temporary fective upon approval of the State pro-
roads for moving mining equipment. gram. When more than one agency
within a State has responsibility for
§ 233.12 Attorney General’s statement. administering the State program, Di-
(a) Any State that seeks to admin- rectors of each of the responsible State
ister a program under this part shall agencies shall be parties to the Memo-
submit a statement from the State At- randum of Agreement.
torney General (or the attorney for (b) The Memorandum of Agreement
those State or interstate agencies shall set out the State and Federal re-
which have independence legal coun- sponsibilities for program administra-
sel), that the laws and regulations of tion and enforcement. These shall in-
the State, or an interstate compact, clude, but not be limited to:
provide adequate authority to carry (1) Provisions specifying classes and
out the program and meet the applica- categories of permit applications for
ble requirements of this part. This which EPA will waive Federal review
statement shall cite specific statutes (as specified in § 233.51).
and administrative regulations which (2) Provisions specifying the fre-
are lawfully adopted at the time the quency and content of reports, docu-
statement is signed and which shall be ments and other information which the
fully effective by the time the program State may be required to submit to
is approved, and, where appropriate, ju- EPA in addition to the annual report,
dicial decisions which demonstrate as well as a provision establishing the
adequate authority. The attorney sign- submission date for the annual report.
ing the statement required by this sec- The State shall also allow EPA rou-
tion must have authority to represent tinely to review State records, reports
323
§ 233.14 40 CFR Ch. I (7–1–21 Edition)
and files relevant to the administra- § 233.15 Procedures for approving

tion and enforcement of the approved State programs.
program. (a) The 120 day statutory review pe-
(3) Provisions addressing EPA and riod shall commence on the date of re-
State roles and coordination with receipt of a complete State program sub-
spect to compliance monitoring and mission as set out in § 233.10 of this
enforcement activities. part. EPA shall determine whether the
(4) Provisions addressing modifica- submission is complete within 30 days
tion of the Memorandum of Agreement. of receipt of the submission and shall
notify the State of its determination.
§ 233.14 Memorandum of Agreement If EPA finds that a State’s submission
with the Secretary.
is incomplete, the statutory review pe-
(a) Before a State program is ap- riod shall not begin until all the nec-
proved under this part, the Director essary information is received by EPA.
shall enter into a Memorandum of (b) If EPA determines the State sig-
Agreement with the Secretary. When nificantly changes its submission dur-
more than one agency within a State ing the review period, the statutory re-
has responsibility for administering view period shall begin again upon the
the State program, Directors of each of receipt of a revised submission.
the responsible agencies shall be par- (c) The State and EPA may extend
ties of the Memorandum of Agreement. the statutory review period by agree-
(b) The Memorandum of Agreement ment.
shall include: (d) Within 10 days of receipt of a com-
(1) A description of waters of the plete State section 404 program sub-
United States within the State over mission, the Regional Administrator
which the Secretary retains jurisdic- shall provide copies of the State’s sub-
tion, as identified by the Secretary. mission to the Corps, FWS, and NMFS
(2) Procedures whereby the Secretary (both Headquarters and appropriate
will, upon program approval, transfer Regional organizations.)
to the State pending 404 permit appli- (e) After determining that a State
cations for discharges in State regu- program submission is complete, the
lated waters and other relevant infor- Regional Administrator shall publish
mation not already in the possession of notice of the State’s application in the
the Director. FEDERAL REGISTER and in enough of
NOTE: Where a State permit program in- the largest newspapers in the State to
cludes coverage of those traditionally navi- attract statewide attention. The Re-
gable waters in which only the Secretary gional Administrator shall also mail
may issue section 404 permits, the State is notice to persons known to be inter-
encouraged to establish in this MOA proce- ested in such matters. Existing State,
dures for joint processing of Federal and EPA, Corps, FWS, and NMFS mailing
State permits, including joint public notices lists shall be used as a basis for this
and public hearings.
mailing. However, failure to mail all
(3) An identification of all general such notices shall not be grounds for
permits issued by the Secretary the invalidating approval (or disapproval)
terms and conditions of which the of an otherwise acceptable (or unac-
State intends to administer and en- ceptable) program. This notice shall:
force upon receiving approval of its (1) Provide for a comment period of
program, and a plan for transferring re- not less than 45 days during which in-
sponsibility for these general permits terested members of the public may ex-
to the State, including procedures for press their views on the State program.
the prompt transmission from the Sec- (2) Provide for a public hearing with-
retary to the Director of relevant in- in the State to be held not less than 30
formation not already in the possession days after notice of hearing is pub-
of the Director, including support files lished in the FEDERAL REGISTER;
for permit issuance, compliance re- (3) Indicate where and when the
ports and records of enforcement ac- State’s submission may be reviewed by
tions. the public;
324
(4) Indicate whom an interested proposed or actual changes to the

member of the public with questions State’s statutory or regulatory author-
should contact; and ity or any other modifications which
(5) Briefly outline the fundamental are significant to administration of the
aspects of the State’s proposed pro- program.
gram and the process for EPA review (b) Any approved program which re-
and decision. quires revision because of a modifica-
(f) Within 90 days of EPA’s receipt of tion to this part or to any other appli-
a complete program submission, the cable Federal statute or regulation
Corps, FWS, and NMFS shall submit to shall be revised within one year of the
EPA any comments on the State’s pro- date of promulgation of such regula-
gram. tion, except that if a State must amend
(g) Within 120 days of receipt of a or enact a statute in order to make the
complete program submission (unless required revision, the revision shall
an extension is agreed to by the State), take place within two years.
the Regional Administrator shall ap- (c) States with approved programs
prove or disapprove the program based shall notify the Regional Adminis-
on whether the State’s program fulfills trator whenever they propose to trans-
the requirements of this part and the fer all or part of any program from the
Act, taking into consideration all com- approved State agency to any other
ments received. The Regional Adminis- State agency. The new agency is not
trator shall prepare a responsiveness authorized to administer the program
summary of significant comments re- until approved by the Regional Admin-
ceived and his response to these com- istrator under paragraph (d) of this sec-
ments. The Regional Administrator tion.
shall respond individually to comments
(d) Approval of revision of a State
received from the Corps, FWS, and
program shall be accomplished as fol-
NMFS.
lows:
(h) If the Regional Administrator ap-
proves the State’s section 404 program, (1) The Director shall submit a modi-
he shall notify the State and the Sec- fied program description or other docu-
retary of the decision and publish no- ments which the Regional Adminis-
tice in the FEDERAL REGISTER. Transfer trator determines to be necessary to
of the program to the State shall not evaluate whether the program com-
be considered effective until such no- plies with the requirements of the Act
tice appears in the FEDERAL REGISTER. and this part.
The Secretary shall suspend the (2) Notice of approval of program
issuance by the Corps of section 404 changes which are not substantial revi-
permits in State regulated waters on sions may be given by letter from the
such effective date. Regional Administrator to the Gov-
(i) If the Regional Administrator dis- ernor or his designee.
approves the State’s program based on (3) Whenever the Regional Adminis-
the State not meeting the require- trator determines that the proposed re-
ments of the Act and this part, the Re- vision is substantial, he shall publish
gional Administrator shall notify the and circulate notice to those persons
State of the reasons for the disapproval known to be interested in such mat-
and of any revisions or modifications ters, provide opportunity for a public
to the State’s program which are nec- hearing, and consult with the Corps,
essary to obtain approval. If the State FWS, and NMFS. The Regional Admin-
resubmits a program submission rem- istrator shall approve or disapprove
edying the identified problem areas, program revisions based on whether
the approval procedure and statutory the program fulfills the requirements
review period shall begin upon receipt of the Act and this part, and shall pub-
of the revised submission. lish notice of his decision in the FED-
ERAL REGISTER. For purposes of this
§ 233.16 Procedures for revision of paragraph, substantial revisions in-
State programs. clude, but are not limited to, revisions

(a) The State shall keep the Regional that affect the area of jurisdiction,
Administrator fully informed of any scope of activities regulated, criteria
325
§ 233.20 40 CFR Ch. I (7–1–21 Edition)
for review of permits, public participa- (b) The Director may issue a general
tion, or enforcement capability. permit for categories of similar activi-
(4) Substantial program changes ties if he determines that the regulated
shall become effective upon approval activities will cause only minimal ad-
by the Regional Administrator and verse environmental effects when per-
publication of notice in the FEDERAL formed separately and will have only
REGISTER. minimal cumulative adverse effects on
(e) Whenever the Regional Adminis- the environment. Any general permit
trator has reason to believe that cir- issued shall be in compliance with the
cumstances have changed with respect section 404(b)(1) Guidelines.
to a State’s program, he may request (c) In addition to the conditions spec-
and the State shall provide a supple- ified in § 233.23, each general permit
mental Attorney General’s statement,
shall contain:
program description, or such other doc-
(1) A specific description of the
uments or information as are necessary
to evaluate the program’s compliance type(s) of activities which are author-
with the requirements of the Act and ized, including limitations for any sin-
this part. gle operation. The description shall be
detailed enough to ensure that the re-
quirements of paragraph (b) of this
Subpart C—Permit Requirements
section are met. (This paragraph super-
§ 233.20 Prohibitions. cedes § 233.23(c)(1) for general permits.)
(2) A precise description of the geo-
No permit shall be issued by the Di-
graphic area to which the general per-
rector in the following circumstances:
mit applies, including limitations on
(a) When permit does not comply
with the requirements of the Act or the type(s) of water where operations
regulations thereunder, including the may be conducted sufficient to ensure
section 404(b)(1) Guidelines (part 230 of that the requirements of paragraph (b)
this chapter). of this section are met.
(b) When the Regional Administrator (d) Predischarge notification or other
has objected to issuance of the permit reporting requirements may be re-
under § 233.50 and the objection has not quired by the Director on a permit-by-
been resolved. permit basis as appropriate to ensure
(c) When the proposed discharges that the general permit will comply
would be in an area which has been with the requirement (section 404(e) of
prohibited, withdrawn, or denied as a the Act) that the regulated activities
disposal site by the Administrator will cause only minimal adverse envi-
under section 404(c) of the Act, or when ronmental effects when performed sep-
the discharge would fail to comply arately and will have only minimal cu-
with a restriction imposed thereunder. mulative adverse effects on the envi-
(d) If the Secretary determines, after ronment.
consultation with the Secretary of the (e) The Director may, without revok-
Department in which the Coast Guard ing the general permit, require any
is operating, that anchorage and navi- person authorized under a general per-
gation of any of the navigable waters mit to apply for an individual permit.
would be substantially impaired. This discretionary authority will be
§ 233.21 General permits. based on concerns for the aquatic envi-
ronment including compliance with
(a) Under section 404(h)(5) of the Act, paragraph (b) of this section and the
States may, after program approval, 404(b)(1) Guidelines (40 CFR part 230.)
administer and enforce general permits
(1) This provision in no way affects
previously issued by the Secretary in
the legality of activities undertaken
State regulated waters.
pursuant to the general permit prior to
NOTE: If States intend to assume existing notification by the Director of such re-
general permits, they must be able to ensure
quirement.
compliance with existing permit conditions
an any reporting monitoring, or
prenotification requirements.
326
(2) Once the Director notifies the dis- cable section 303 water quality stand-
charger of his decision to exercise dis- ards, and applicable section 307 effluent
cretionary authority to require an in- standards and prohibitions.
dividual permit, the discharger’s activ- (b) Section 404 permits shall be effec-
ity is no longer authorized by the gen- tive for a fixed term not to exceed 5
eral permit. years.
(c) Each 404 permit shall include con-
§ 233.22 Emergency permits. ditions meeting or implementing the
(a) Notwithstanding any other provi- following requirements:
sion of this part, the Director may (1) A specific identification and com-
issue a temporary emergency permit plete description of the authorized ac-
for a discharge of dredged or fill mate- tivity including name and address of
rial if unacceptable harm to life or se- permittee, location and purpose of dis-
vere loss of physical property is likely charge, type and quantity of material
to occur before a permit could be to be discharged. (This subsection is
issued or modified under procedures not applicable to general permits).
normally required. (2) Only the activities specifically de-
(b) Emergency permits shall incor- scribed in the permit are authorized.
porate, to the extent possible and not (3) The permittee shall comply with
inconsistent with the emergency situa- all conditions of the permit even if
tion, all applicable requirements of that requires halting or reducing the
§ 233.23. permitted activity to maintain compli-
(1) Any emergency permit shall be ance. Any permit violation constitutes
limited to the duration of time (typi- a violation of the Act as well as of
cally no more than 90 days) required to State statute and/or regulation.
complete the authorized emergency ac- (4) The permittee shall take all rea-
tion. sonable steps to minimize or prevent
(2) The emergency permit shall have any discharge in violation of this per-
a condition requiring appropriate res- mit.
toration of the site. (5) The permittee shall inform the Di-
(c) The emergency permit may be rector of any expected or known actual
terminated at any time without proc- noncompliance.
ess (§ 233.36) if the Director determines (6) The permittee shall provide such
that termination is necessary to pro- information to the Director, as the Di-
tect human health or the environment. rector requests, to determine compli-
(d) The Director shall consult in an ance status, or whether cause exists for
expeditious manner, such as by tele- permit modification, revocation or
phone, with the Regional Adminis- termination.
trator, the Corps, FWS, and NMFS (7) Monitoring, reporting and record-
about issuance of an emergency per- keeping requirements as needed to
mit. safeguard the aquatic environment.
(e) The emergency permit may be (Such requirements will be determined
oral or written. If oral, it must be fol- on a case-by-case basis, but at a min-
lowed within 5 days by a written emer- imum shall include monitoring and re-
gency permit. A copy of the written porting of any expected leachates, re-
permit shall be sent to the Regional porting of noncompliance, planned
Administrator. changes or transfer of the permit.)
(f) Notice of the emergency permit (8) Inspection and entry. The per-
shall be published and public committee shall allow the Director, or his
ments solicited in accordance with authorized representative, upon presen-
§ 233.32 as soon as possible but no later tation of proper identification, at rea-
than 10 days after the issuance date. sonable times to:
(i) Enter upon the permittee’s prem-
§ 233.23 Permit conditions. ises where a regulated activity is lo-
(a) For each permit the Director cated or where records must be kept
shall establish conditions which assure under the conditions of the permit,
compliance with all applicable statu- (ii) Have access to and copy any
tory and regulatory requirements, in- records that must be kept under the
cluding the 404(b)(1) Guidelines, appli- conditions of the permit,
327
§ 233.30 40 CFR Ch. I (7–1–21 Edition)
(iii) Inspect operations regulated or (4) A certification that all informa-

required under the permit, and tion contained in the application is
(iv) Sample or monitor, for the pur- true and accurate and acknowledging
poses of assuring permit compliance or awareness of penalties for submitting
as otherwise authorized by the Act, false information.
any substances or parameters at any (5) All activities which the applicant
location. plans to undertake which are reason-
(9) Conditions assuring that the dis- ably related to the same project should
charge will be conducted in a manner be included in the same permit applica-
which minimizes adverse impacts upon tion.
the physical, chemical and biological (c) In addition to the information in-
integrity of the waters of the United dicated in § 233.30(b), the applicant will
States, such as requirements for res- be required to furnish such additional
toration or mitigation. information as the Director deems ap-
propriate to assist in the evaluation of
Subpart D—Program Operation the application. Such additional infor-
mation may include environmental
§ 233.30 Application for a permit. data and information on alternate
(a) Except when an activity is au- methods and sites as may be necessary
thorized by a general permit issued for the preparation of the required en-
pursuant to § 233.21 or is exempt from vironmental documentation.
the requirements to obtain a permit (d) The level of detail shall be reason-
under § 232.3, any person who proposes ably commensurate with the type and
to discharge dredged or fill material size of discharge, proximity to critical
into State regulated waters shall com- areas, likelihood of long-lived toxic
plete, sign and submit a permit appli- chemical substances, and potential
cation to the Director. Persons pro- level of environmental degradation.
posing to discharge dredged or fill ma- NOTE: EPA encourages States to provide
terial under the authorization of a gen- permit applicants guidance regarding the
eral permit must comply with any re- level of detail of information and docu-
porting requirements of the general mentation required under this subsection.
permit. This guidance can be provided either through
the application form or on an individual
(b) A complete application shall in-
basis. EPA also encourages the State to
clude: maintain a program to inform potential ap-
(1) Name, address, telephone number plicants for permits of the requirements of
of the applicant and name(s) and ad- the State program and of the steps required
dress(es) of adjoining property owners. to obtain permits for activities in State reg-
(2) A complete description of the pro- ulated waters.
posed activity including necessary
drawings, sketches or plans sufficient § 233.31 Coordination requirements.
for public notice (the applicant is not (a) If a proposed discharge may affect
generally expected to submit detailed the biological, chemical, or physical
engineering plans and specifications); integrity of the waters of any State(s)
the location, purpose and intended use other than the State in which the dis-
of the proposed activity; scheduling of charge occurs, the Director shall pro-
the activity; the location and dimen- vide an opportunity for such State(s)
sions of adjacent structures; and a list to submit written comments within
of authorizations required by other the public comment period and to sug-
Federal, interstate, State or local gest permit conditions. If these rec-
agencies for the work, including all ap- ommendations are not accepted by the
provals received or denials already Director, he shall notify the affected
made. State and the Regional Administrator
(3) The application must include a prior to permit issuance in writing of
description of the type, composition, his failure to accept these rec-
source and quantity of the material to ommendations, together with his rea-
be discharged, the method of discharge, sons for so doing. The Regional Admin-
and the site and plans for disposal of istrator shall then have the time pro-
the dredged or fill material. vided for in § 233.50(d) to comment
328
upon, object to, or make recommenda- (v) Any State whose waters may be
tions. affected by the proposed discharge.
(b) State section 404 permits shall be (2) In addition, by providing notice in
coordinated with Federal and Federal- at least one other way (such as adver-
State water related planning and re- tisement in a newspaper of sufficient
view processes. circulation) reasonably calculated to
cover the area affected by the activity.
§ 233.32 Public notice. (d) All public notices shall contain at
(a) Applicability. least the following information:
(1) The Director shall give public no- (1) The name and address of the ap-
tice of the following actions: plicant and, if different, the address or
(i) Receipt of a permit application. location of the activity(ies) regulated
(ii) Preparation of a draft general by the permit.
permit. (2) The name, address, and telephone
number of a person to contact for fur-
(iii) Consideration of a major modi-
ther information.
fication to an issued permit.
(3) A brief description of the com-
(iv) Scheduling of a public hearing.
ment procedures and procedures to re-
(v) Issuance of an emergency permit. quest a public hearing, including dead-
(2) Public notices may describe more lines.
than one permit or action. (4) A brief description of the proposed
(b) Timing. activity, its purpose and intended use,
(1) The public notice shall provide a so as to provide sufficient information
reasonable period of time, normally at concerning the nature of the activity
least 30 days, within which interested to generate meaningful comments, in-
parties may express their views con- cluding a description of the type of
cerning the permit application. structures, if any, to be erected on
(2) Public notice of a public hearing fills, and a description of the type,
shall be given at least 30 days before composition and quantity of materials
the hearing. to be discharged.
(3) The Regional Administrator may (5) A plan and elevation drawing
approve a program with shorter public showing the general and specific site
notice timing if the Regional Adminis- location and character of all proposed
trator determines that sufficient public activities, including the size relation-
notice is provided for. ship of the proposed structures to the
(c) The Director shall give public no- size of the impacted waterway and
tice by each of the following methods: depth of water in the area.
(1) By mailing a copy of the notice to (6) A paragraph describing the var-
the following persons (any person oth- ious evaluation factors, including the
erwise entitled to receive notice under 404(b)(1) Guidelines or State-equivalent
this paragraph may waive his rights to criteria, on which decisions are based.
receive notice for any classes or cat- (7) Any other information which
egories of permits): would significantly assist interested
(i) The applicant. parties in evaluating the likely impact
(ii) Any agency with jurisdiction over of the proposed activity.
the activity or the disposal site, wheth- (e) Notice of public hearing shall also
er or not the agency issues a permit. contain the following information:
(iii) Owners of property adjoining the (1) Time, date, and place of hearing.
property where the regulated activity (2) Reference to the date of any pre-
will occur. vious public notices relating to the per-
(iv) All persons who have specifically mit.
requested copies of public notices. (The (3) Brief description of the nature and
Director may update the mailing list purpose of the hearing.
from time to time by requesting writ-
ten indication of continued interest § 233.33 Public hearing.
from those listed. The Director may de- (a) Any interested person may re-
lete from the list the name of any per- quest a public hearing during the pub-
son who fails to respond to such a re- lic comment period as specified in
quest.) § 233.32. Requests shall be in writing
329
§ 233.34 40 CFR Ch. I (7–1–21 Edition)
and shall state the nature of the issues ficial record shall be open to the
proposed to be raised at the hearing. public.
(b) The Director shall hold a public
hearing whenever he determines there § 233.35 Issuance and effective date of
is a significant degree of public inter- permit.
est in a permit application or a draft (a) If the Regional Administrator
general permit. He may also hold a comments on a permit application or
hearing, at his discretion, whenever he draft general permit under § 233.50, the
determines a hearing may be useful to Director shall follow the procedures
a decision on the permit application. specified in that section in issuing the
(c) At a hearing, any person may sub- permit.
mit oral or written statements or data (b) If the Regional Administrator
concerning the permit application or does not comment on a permit applica-
draft general permit. The public com- tion or draft general permit, the Direc-
ment period shall automatically be ex- tor shall make a final permit decision
tended to the close of any public hear- after the close of the public comment
ing under this section. The presiding period and shall notify the applicant.
officer may also extend the comment (1) If the decision is to issue a permit,
period at the hearing. the permit becomes effective when it is
(d) All public hearings shall be re- signed by the Director and the appli-
ported verbatim. Copies of the record cant.
of proceedings may be purchased by
(2) If the decision is to deny the
any person from the Director or the re-
permit, the Director will notify the
porter of such hearing. A copy of the
applicant in writing of the reason(s) for
transcript (or if none is prepared, a
denial.
tape of the proceedings) shall be made
available for public inspection at an § 233.36 Modification, suspension or
appropriate State office. revocation of permits.
§ 233.34 Making a decision on the per- (a) General. The Director may re-
mit application. evaluate the circumstances and condi-
(a) The Director will review all ap- tions of a permit either on his own mo-
plications for compliance with the tion or at the request of the permittee
404(b)(1) Guidelines and/or equivalent or of a third party and initiate action
State environmental criteria as well as to modify, suspend, or revoke a permit
any other applicable State laws or reg- if he determines that sufficient cause
ulations. exists. Among the factors to be consid-
(b) The Director shall consider all ered are:
comments received in response to the (1) Permittee’s noncompliance with
public notice, and public hearing if a any of the terms or conditions of the
hearing is held. All comments, as well permit;
as the record of any public hearing, (2) Permittee’s failure in the applica-
shall be made part of the official record tion or during the permit issuance
on the application. process to disclose fully all relevant
(c) After the Director has completed facts or the permittee’s misrepresenta-
his review of the application and con- tion of any relevant facts at the time;
sideration of comments, the Director (3) Information that activities au-
will determine, in accordance with the thorized by a general permit are having
record and all applicable regulations, more than minimal individual or cu-
whether or not the permit should be mulative adverse effect on the environ-
issued. No permit shall be issued by the ment, or that the permitted activities
Director under the circumstances de- are more appropriately regulated by in-
scribed in § 233.20. The Director shall dividual permits;
prepare a written determination on (4) Circumstances relating to the au-
each application outlining his decision thorized activity have changed since
and rationale for his decision. The de- the permit was issued and justify
termination shall be dated, signed and changed permit conditions or tem-

included in the official record prior to porary or permanent cessation of any
final action on the application. The of- discharge controlled by the permit;
330
(5) Any significant information relat- § 233.37 Signatures on permit applica-

ing to the activity authorized by the tions and reports.
permit if such information was not The application and any required re-
available at the time the permit was ports must be signed by the person who
issued and would have justified the im- desires to undertake the proposed ac-
position of different permit conditions tivity or by that person’s duly author-
or denial at the time of issuance; ized agent if accompanied by a state-
(6) Revisions to applicable statutory ment by that person designating the
or regulatory authority, including agent. In either case, the signature of
toxic effluent standards or prohibitions the applicant or the agent will be un-
or water quality standards. derstood to be an affirmation that he
(b) Limitations. Permit modifications possesses or represents the person who
shall be in compliance with § 233.20. possesses the requisite property inter-
(c) Procedures. (1) The Director shall est to undertake the activity proposed
develop procedures to modify, suspend in the application.
or revoke permits if he determines
cause exists for such action (§ 233.36(a)). § 233.38 Continuation of expiring per-
mits.
Such procedures shall provide oppor-
tunity for public comment (§ 233.32), co- A Corps 404 permit does not continue
ordination with the Federal review in force beyond its expiration date
agencies (§ 233.50), and opportunity for under Federal law if, at that time, a
public hearing (§ 233.33) following noti- State is the permitting authority.
fication of the permittee. When permit States authorized to administer the 404
modification is proposed, only the con- Program may continue Corps or State-
ditions subject to modification need be issued permits until the effective date
reopened. of the new permits, if State law allows.
(2) Minor modification of permits. Otherwise, the discharge is being con-
The Director may, upon the consent of ducted without a permit from the time
the permittee, use abbreviated proce- of expiration of the old permit to the
dures to modify a permit to make the effective date of a new State-issued
following corrections or allowance for permit, if any.
changes in the permitted activity:
§ 233.39 Electronic reporting.
(i) Correct typographical errors;
(ii) Require more frequent moni- States that choose to receive elec-
toring or reporting by permittee; tronic documents must satisfy the re-
quirements of 40 CFR Part 3—(Elec-
(iii) Allow for a change in ownership
tronic reporting) in their state pro-
or operational control of a project or
gram.
activity where the Director determines
that no other change in the permit is [70 FR 59888, Oct. 13, 2005]
necessary, provided that a written
agreement containing a specific date Subpart E—Compliance
for transfer of permit responsibility, Evaluation and Enforcement
coverage, and liability between the
current and new permittees has been § 233.40 Requirements for compliance
submitted to the Director; evaluation programs.
(iv) Provide for minor modification (a) In order to abate violations of the
of project plans that do not signifi- permit program, the State shall main-
cantly change the character, scope, tain a program designed to identify
and/or purpose of the project or result persons subject to regulation who have
in significant change in environmental failed to obtain a permit or to comply
impact; with permit conditions.
(v) Extend the term of a permit, so (b) The Director and State officers
long as the modification does not ex- engaged in compliance evaluation,
tend the term of the permit beyond 5 upon presentation of proper identifica-
years from its original effective date tion, shall have authority to enter any
and does not result in any increase in site or premises subject to regulation
the amount of dredged or fill material or in which records relevant to pro-
allowed to be discharged. gram operation are kept in order to
331
§ 233.41 40 CFR Ch. I (7–1–21 Edition)
copy any records, inspect, monitor or sessable for each violation and, if the
otherwise investigate compliance with violation is continuous, shall be assess-
the State program. able in that maximum amount for each
(c) The State program shall provide day of violation.
for inspections to be conducted, sam- (2) The burden of proof and degree of
ples to be taken and other information knowledge or intent required under
to be gathered in a manner that will State law for establishing violations
produce evidence admissible in an en- under paragraph (a)(3) of this section,
forcement proceeding. shall be no greater than the burden of
(d) The State shall maintain a pro- proof or degree of knowledge or intent
gram for receiving and ensuring proper EPA must bear when it brings an ac-
consideration of information submitted tion under the Act.
by the public about violations. (c) The civil penalty assessed, sought,
or agreed upon by the Director under
§ 233.41 Requirements for enforcement
authority. paragraph (a)(3) of this section shall be
appropriate to the violation.
(a) Any State agency administering a
program shall have authority: NOTE: To the extent that State judgments
(1) To restrain immediately and ef- or settlements provide penalties in amounts
which EPA believes to be substantially inad-
fectively any person from engaging in
equate in comparison to the amounts which
any unauthorized activity; EPA would require under similar facts, EPA
(2) To sue to enjoin any threatened or may, when authorized by section 309 of the
continuing violation of any program Act, commence separate action for penalties.
requirement;
(3) To assess or sue to recover civil (d)(1) The Regional Administrator
penalties and to seek criminal rem- may approve a State program where
edies, as follows: the State lacks authority to recover
(i) The agency shall have the author- penalties of the levels required under
ity to assess or recover civil penalties paragraphs (a)(3)(i)–(iii) of this section
for discharges of dredged or fill mate- only if the Regional Administrator de-
rial without a required permit or in termines, after evaluating a record of
violation of any section 404 permit con- at least one year for an alternative en-
dition in an amount of at least $5,000 forcement program, that the State has
per day of such violation. an alternate, demonstrably effective
(ii) The agency shall have the author- method of ensuring compliance which
ity to seek criminal fines against any has both punitive and deterrence ef-
person who willfully or with criminal fects.
negligence discharges dredged or fill (2) States whose programs were ap-
material without a required permit or proved via waiver of monetary pen-
violates any permit condition issued alties shall keep the Regional Adminis-
under section 404 in the amount of at trator informed of all enforcement ac-
least $10,000 per day of such violation. tions taken under any alternative
(iii) The agency shall have the au- method approved pursuant to para-
thority to seek criminal fines against graph (d)(1) of this section. The manner
any person who knowingly makes false of reporting will be established in the
statements, representation, or certifi- Memorandum of Agreement with the
cation in any application, record, re- Regional Administrator (§ 233.13).
port, plan, or other document filed or (e) Any State administering a pro-
required to be maintained under the gram shall provide for public participa-
Act, these regulations or the approved tion in the State enforcement process
State program, or who falsifies, by providing either:
tampers with, or knowingly renders in- (1) Authority which allows interven-
accurate any monitoring device or tion of right in any civil or administra-
method required to be maintained tive action to obtain remedies specified
under the permit, in an amount of at in paragraph (a)(3) of this section by
least $5,000 for each instance of viola- any citizen having an interest which is
tion. or may be adversely affected, or

(b)(1) The approved maximum civil (2) Assurance that the State agency
penalty or criminal fine shall be as- or enforcement authority will:
332
(i) Investigate and provide written (5) A copy of the Director’s response
responses to all citizen complaints sub- to another State’s comments/
mitted pursuant to State procedures; recommendations, if the Director does
(ii) Not oppose intervention by any not accept these recommendations
citizen when permissive intervention (§ 233.32(a)).
may be authorized by statute, rule, or (b) Unless review has been waived
regulation; and under § 233.51, the Regional Adminis-
(iii) Publish notice of and provide at trator shall provide a copy of each pub-
least 30 days for public comment on lic notice, each draft general permit,
any proposed settlement of a State en- and other information needed for re-
forcement action. view of the application to the Corps,
(f) Provision for Tribal criminal enforce- FWS, and NMFS, within 10 days of re-
ment authority. To the extent that an ceipt. These agencies shall notify the
Indian Tribe does not assert or is pre- Regional Administrator within 15 days
cluded from asserting criminal enforce- of their receipt if they wish to com-
ment authority (§ 233.41(a)(3) (ii) and ment on the public notice or draft gen-
(iii)), the Federal government will con- eral permit. Such agencies should sub-
tinue to exercise primary criminal en- mit their evaluation and comments to
forcement responsibility. The Tribe, the Regional Administrator within 50
with the EPA Region and Corps Dis- days of such receipt. The final decision
trict(s) with jurisdiction, shall develop to comment, object or to require per-
a system where the Tribal agency will mit conditions shall be made by the
refer such a violation to the Regional Regional Administrator. (These times
Administrator or the District Engi- may be shortened by mutual agree-
neer(s), as agreed to by the parties, in ment of the affected Federal agencies
an appropriate and timely manner. and the State.)
This agreement shall be incorporated (c) If the information provided is in-
into joint or separate Memorandum of adequate to determine whether the per-
Agreement with the EPA Region and mit application or draft general permit
the Corps District(s), as appropriate. meets the requirements of the Act,
[53 FR 20776, June 1, 1988, as amended at 58 these regulations, and the 404(b)(1)
FR 8183, Feb. 11, 1993] Guidelines, the Regional Administrator
may, within 30 days of receipt, request
Subpart F—Federal Oversight the Director to transmit to the Re-
gional Administrator the complete
§ 233.50 Review of and objection to record of the permit proceedings before
State permits. the State, or any portions of the
(a) The Director shall promptly record, or other information, including
transmit to the Regional Adminis- a supplemental application, that the
trator: Regional Administrator determines
(1) A copy of the public notice for any necessary for review.
complete permit applications received (d) If the Regional Administrator in-
by the Director, except those for which tends to comment upon, object to, or
permit review has been waived under make recommendations with respect to
§ 233.51. The State shall supply the Re- a permit application, draft general per-
gional Administrator with copies of mit, or the Director’s failure to accept
public notices for permit applications the recommendations of an affected
for which permit review has been State submitted pursuant to § 233.31(a),
waived whenever requested by EPA. he shall notify the Director of his in-
(2) A copy of a draft general permit tent within 30 days of receipt. If the Di-
whenever the State intends to issue a rector has been so notified, the permit
general permit. shall not be issued until after the re-
(3) Notice of every significant action ceipt of such comments or 90 days of
taken by the State agency related to the Regional Administrator’s receipt of
the consideration of any permit appli- the public notice, draft general permit
cation except those for which Federal or Director’s response (§ 233.31(a)),
review has been waived or draft general whichever comes first. The Regional
permit. Administrator may notify the Director
(4) A copy of every issued permit. within 30 days of receipt that there is
333
§ 233.51 40 CFR Ch. I (7–1–21 Edition)
no comment but that he reserves the (1) If the Regional Administrator

right to object within 90 days of re- withdraws his objection or requirement
ceipt, based on any new information for a permit condition, the Director
brought out by the public during the may issue the permit.
comment period or at a hearing. (2) If the Regional Administrator
(e) If the Regional Administrator has does not withdraw the objection or re-
given notice to the Director under quirement for a permit condition, the
paragraph (d) of this section, he shall Director must issue a permit revised to
submit to the Director, within 90 days satisfy the Regional Administrator’s
of receipt of the public notice, draft objection or requirement for a permit
general permit, or Director’s response condition or notify EPA of its intent to
(§ 233.31(a)), a written statement of his deny the permit within 30 days of re-
comments, objections, or recommenda- ceipt of the Regional Administrator’s
tions; the reasons for the comments, notification.
objections, or recommendations; and (i) If no public hearing is held under
the actions that must be taken by the paragraph (g) of this section, the Direc-
Director in order to eliminate any ob- tor within 90 days of receipt of the ob-
jections. Any such objection shall be jection or requirement for a permit
based on the Regional Administrator’s condition shall either issue the permit
determination that the proposed per- revised to satisfy EPA’s objections or
mit is (1) the subject of an interstate notify EPA of its intent to deny the
dispute under § 233.31(a) and/or (2) out- permit.
side requirements of the Act, these reg- (j) In the event that the Director nei-
ulations, or the 404(b)(1) Guidelines. ther satisfies EPA’s objections or re-
The Regional Administrator shall quirement for a permit condition nor
make available upon request a copy of denies the permit, the Secretary shall
any comment, objection, or recom- process the permit application.
mendation on a permit application or [53 FR 20776, June 1, 1988; 53 FR 41649, Oct. 24,
draft general permit to the permit ap- 1988]
plicant or to the public.
(f) When the Director has received an § 233.51 Waiver of review.
EPA objection or requirement for a (a) The MOA with the Regional Ad-
permit condition to a permit applica- ministrator shall specify the categories
tion or draft general permit under this of discharge for which EPA will waive
section, he shall not issue the permit Federal review of State permit applica-
unless he has taken the steps required tions. After program approval, the
by the Regional Administrator to MOA may be modified to reflect any
eliminate the objection. additions or deletions of categories of
(g) Within 90 days of receipt by the discharge for which EPA will waive re-
Director of an objection or requirement view. The Regional Administrator shall
for a permit condition by the Regional consult with the Corps, FWS, and
Administrator, the State or any inter- NMFS prior to specifying or modifying
ested person may request that the Re- such categories.
gional Administrator hold a public (b) With the following exceptions,
hearing on the objection or require- any category of discharge is eligible for
ment. The Regional Administrator consideration for waiver:
shall conduct a public hearing when- (1) Draft general permits;
ever requested by the State proposing (2) Discharges with reasonable poten-
to issue the permit, or if warranted by tial for affecting endangered or threat-
significant public interest based on re- ened species as determined by FWS;
quests received. (3) Discharges with reasonable poten-
(h) If a public hearing is held under tial for adverse impacts on waters of
paragraph (g) of this section, the Re- another State;
gional Administrator shall, following (4) Discharges known or suspected to
that hearing, reaffirm, modify or with- contain toxic pollutants in toxic
draw the objection or requirement for a amounts (section 101(a)(3) of the Act)
permit condition, and notify the Direc- or hazardous substances in reportable
tor of this decision. quantities (section 311 of the Act);
334
(5) Discharges located in proximity of tional evaluation and/or information to

a public water supply intake; the Director.
(6) Discharges within critical areas (e) Within 30 days of receipt of the
established under State or Federal law, Regional Administrator’s comments,
including but not limited to National the Director will finalize the annual re-
and State parks, fish and wildlife sanc- port, incorporating and/or responding
tuaries and refuges, National and his- to the Regional Administrator’s com-
torical monuments, wilderness areas ments, and transmit the final report to
and preserves, sites identified or pro- the Regional Administrator.
posed under the National Historic Pres- (f) Upon acceptance of the annual re-
ervation Act, and components of the
port, the Regional Administrator shall
National Wild and Scenic Rivers Sys-
publish notice of availability of the
tem.
final annual report.
(c) The Regional Administrator re-
tains the right to terminate a waiver § 233.53 Withdrawal of program ap-
as to future permit actions at any time proval.
by sending the Director written notice
of termination. (a) A State with a program approved
under this part may voluntarily trans-
§ 233.52 Program reporting. fer program responsibilities required
(a) The starting date for the annual by Federal law to the Secretary by
period to be covered by reports shall be taking the following actions, or in such
established in the Memorandum of other manner as may be agreed upon
Agreement with the Regional Adminis- with the Administrator.
trator (§ 233.13.) (1) The State shall give the Adminis-
(b) The Director shall submit to the trator and the Secretary 180 days no-
Regional Administrator within 90 days tice of the proposed transfer. The State
after completion of the annual period, shall also submit a plan for the orderly
a draft annual report evaluating the transfer of all relevant program infor-
State’s administration of its program mation not in the possession of the
identifying problems the State has en- Secretary (such as permits, permit
countered in the administration of its files, reports, permit applications)
program and recommendations for re- which are necessary for the Secretary
solving these problems. Items that to administer the program.
shall be addressed in the annual report (2) Within 60 days of receiving the no-
include an assessment of the cumu- tice and transfer plan, the Adminis-
lative impacts of the State’s permit trator and the Secretary shall evaluate
program on the integrity of the State the State’s transfer plan and shall
regulated waters; identification of identify for the State any additional
areas of particular concern and/or in- information needed by the Federal gov-
terest within the State; the number
ernment for program administration.
and nature of individual and general
(3) At least 30 days before the trans-
permits issued, modified, and denied;
number of violations identified and fer is to occur the Administrator shall
number and nature of enforcement ac- publish notice of transfer in the FED-
ERAL REGISTER and in a sufficient num-
tions taken; number of suspected unau-
thorized activities reported and nature ber of the largest newspapers in the
of action taken; an estimate of extent State to provide statewide coverage,
of activities regulated by general per- and shall mail notice to all permit
mits; and the number of permit appli- holders, permit applicants, other regu-
cations received but not yet processed. lated persons and other interested per-
(c) The State shall make the draft sons on appropriate EPA, Corps and
annual report available for public in- State mailing lists.
spection. (b) The Administrator may withdraw
(d) Within 60 days of receipt of the program approval when a State pro-
draft annual report, the Regional Ad- gram no longer complies with the re-
ministrator will complete review of the quirements of this part, and the State
draft report and transmit comments, fails to take corrective action. Such
questions, and/or requests for addi- circumstances include the following:
335
§ 233.53 40 CFR Ch. I (7–1–21 Edition)
(1) When the State’s legal authority under this paragraph shall fix a time
no longer meets the requirements of and place for the commencement of the
this part, including: hearing, shall specify the allegations
(i) Failure of the State to promulgate against the State which are to be con-
or enact new authorities when nec- sidered at the hearing, and shall be
essary; or published in the FEDERAL REGISTER.
(ii) Action by a State legislature or Within 30 days after publication of the
court striking down or limiting State Administrator’s order in the FEDERAL
authorities. REGISTER, the State shall admit or
(2) When the operation of the State deny these allegations in a written an-
program fails to comply with the re- swer. The party seeking withdrawal of
quirements of this part, including: the State’s program shall have the bur-
(i) Failure to exercise control over den of coming forward with the
activities required to be regulated evidence in a hearing under this
under this part, including failure to paragraph.
issue permits; (2) Definitions. For purposes of this
(ii) Issuance of permits which do not paragraph the definition of Administra-
conform to the requirements of this tive Law Judge, Hearing Clerk, and Pre-
part; or siding Officer in 40 CFR 22.03 apply in
(iii) Failure to comply with the pub- addition to the following:
lic participation requirements of this (i) Party means the petitioner, the
part. State, the Agency, and any other per-
(3) When the State’s enforcement son whose request to participate as a
program fails to comply with the re- party is granted.
quirements of this part, including: (ii) Person means the Agency, the
(i) Failure to act on violations of per- State and any individual or organiza-
mits or other program requirements; tion having an interest in the subject
(ii) Failure to seek adequate enforce- matter of the proceedings.
ment penalties or to collect adminis- (iii) Petitioner means any person
trative fines when imposed, or to im- whose petition for commencement of
plement alternative enforcement meth- withdrawal proceedings has been grant-
ods approved by the Administrator; or ed by the Administrator.
(iii) Failure to inspect and monitor (3) Procedures. (i) The following provi-
activities subject to regulation. sions of 40 CFR Part 22 [Consolidated
(4) When the State program fails to Rules of Practice] are applicable to
comply with the terms of the Memo- proceedings under this paragraph:
randum of Agreement required under (A) Section 22.02—(use of number/gen-
§ 233.13. der);
(c) The following procedures apply (B) Section 22.04—(authorities of Pre-
when the Administrator orders the siding Officer);
commencement of proceedings to de- (C) Section 22.06—(filing/service of
termine whether to withdraw approval rulings and orders);
of a State program: (D) Section 22.09—(examination of
(1) Order. The Administrator may filed documents);
order the commencement of with- (E) Section 22.19 (a), (b) and (c)—(pre-
drawal proceedings on the Administra- hearing conference);
tor’s initiative or in response to a peti- (F) Section 22.22—(evidence);
tion from an interested person alleging (G) Section 22.23—(objections/offers
failure of the State to comply with the of proof);
requirements of this part as set forth (H) Section 22.25—(filing the tran-
in subsection (b) of this section. The script; and
Administrator shall respond in writing (I) Section 22.26—(findings/conclu-
to any petition to commence with- sions).
drawal proceedings. He may conduct an (ii) The following provisions are also
informal review of the allegations in applicable:
the petition to determine whether (A) Computation and extension of
cause exists to commence proceedings time.

under this paragraph. The Administra- (1) Computation. In computing any pe-
tor’s order commencing proceedings riod of time prescribed or allowed in
336
these rules of practice, except as other- ceeding and shall be served upon all
wise provided, the day of the event other parties. The other parties shall
from which the designated period be- be given an opportunity to reply to
gins to run shall not be included. Sat- such memorandum or communication.
urdays, Sundays, and Federal legal (C) Intervention—(1) Motion. A mo-
holidays shall be included. When a tion for leave to intervene in any pro-
stated time expires on a Saturday, ceeding conducted under these rules of
Sunday or Federal legal holiday, the practice must set forth the grounds for
stated time period shall be extended to the proposed intervention, the position
include the next business day. and interest of the movant and the
(2) Extensions of time. The Adminis- likely impact that intervention will
trator, Regional Administrator, or Pre- have on the expeditious progress of the
siding Officer, as appropriate, may proceeding. Any person already a party
grant an extension of time for the fil- to the proceeding may file an answer to
ing of any pleading, document, or mo- a motion to intervene, making specific
tion (i) upon timely motion of a party reference to the factors set forth in the
to the proceeding, for good cause foregoing sentence and paragraph
shown and after consideration of preju- (b)(3)(ii)(C)(3) of this section, within
dice to other parties, or (ii) upon his ten (10) days after service of the mo-
own motion. Such a motion by a party tion for leave to intervene.
may only be made after notice to all (2) However, motions to intervene
other parties, unless the movant can must be filed within 15 days from the
show good cause why serving notice is date the notice of the Administrator’s
impracticable. The motion shall be order is published in the FEDERAL REG-
filed in advance of the date on which ISTER.
the pleading, document or motion is (3) Disposition. Leave to intervene
due to be filed, unless the failure of a may be granted only if the movant
party to make timely motion for ex- demonstrates that (i) his presence in
tension of time was the result of excus- the proceeding would not unduly pro-
able neglect. long or otherwise prejudice the adju-
(3) The time for commencement of dication of the rights of the original
the hearing shall not be extended be- parties; (ii) the movant will be ad-
yond the date set in the Administra- versely affected by a final order; and
tor’s order without approval of the Ad- (iii) the interests of the movant are not
ministrator. being adequately represented by the
(B) Ex parte discussion of proceeding. original parties. The intervenor shall
At no time after the issuance of the become a full party to the proceeding
order commencing proceedings shall upon the granting of leave to inter-
the Administrator, the Regional Ad- vene.
ministrator, the Regional Judicial Offi- (4) Amicus curiae. Persons not parties
cer, the Presiding Officer, or any other to the proceeding who wish to file
person who is likely to advise these of- briefs may so move. The motion shall
ficials in the decisions on the case, dis- identify the interest of the applicant
cuss ex parte the merits of the pro- and shall state the reasons why the
ceeding with any interested person out- proposed amicus brief is desirable. If
side the Agency, with any Agency staff the motion is granted, the Presiding
member who performs a prosecutorial Officer or Administrator shall issue an
or investigative function in such pro- order setting the time for filing such
ceeding or a factually related pro- brief. An amicus curiae is eligible to
ceeding, or with any representative of participate in any briefing after his
such person. Any ex parte memo- motion is granted, and shall be served
randum or other communication ad- with all briefs, reply briefs, motions,
dressed to the Administrator, the Re- and orders relating to issues to be
gional Administrator, the Regional Ju- briefed.
dicial Officer, or the Presiding Officer (D) Motions—(1) General. All motions,
during the pendency of the proceeding except those made orally on the record
and relating to the merits thereof, by during a hearing, shall (i) be in writing;
or on behalf of any party shall be re- (ii) state the grounds therefore with
garded as argument made in the pro- particularity; (iii) set forth the relief or
337
§ 233.53 40 CFR Ch. I (7–1–21 Edition)
order sought; and (iv) be accompanied (v) A copy of each such submission
by any affidavit, certificate, other evi- shall be served by the person making
dence, or legal memorandum relied the submission upon the Presiding Offi-
upon. Such motions shall be served as cer and each party of record. Service
provided by paragraph (b)(4) of this sec- under this paragraph shall take place
tion. by mail or personal delivery;
(2) Response to motions. A party’s re- (vi) Every submission shall be accom-
sponse to any written motion must be panied by acknowledgement of service
filed within ten (10) days after service by the person served or proof of service
of such motion, unless additional time in the form of a statement of the date,
is allowed for such response. The re- time, and manner of service and the
sponse shall be accompanied by any af- names of the persons served, certified
fidavit, certificate, other evidence, or by the person who made service; and
legal memorandum relied upon. If no (vii) The Hearing Clerk shall main-
response is filed within the designated tain and furnish to any person upon re-
period, the parties may be deemed to quest, a list containing the name, serv-
have waived any objection to the ice address, and telephone number of
granting of the motion. The Presiding all parties and their attorneys or duly
Officer, Regional Administrator, or Ad- authorized representatives.
ministrator, as appropriate, may set a (5) Participation by a person not a
shorter time for response, or make party. A person who is not a party may,
such other orders concerning the dis- in the discretion of the Presiding Offi-
position of motions as they deem ap- cer, be permitted to make a limited ap-
propriate. pearance by making an oral or written
(3) Decision. The Administrator shall statement of his/her position on the
rule on all motions filed or made after issues within such limits and on such
service of the recommended decision conditions as may be fixed by the Pre-
upon the parties. The Presiding Officer siding Officer, but he/she may not oth-
shall rule on all other motions. Oral ar- erwise participate in the proceeding.
gument on motions will be permitted
(6) Rights of parties. (i) All parties to
where the Presiding Officer, Regional
the proceeding may:
Administrator, or the Administrator
(A) Appear by counsel or other rep-
considers it necessary or desirable.
resentative in all hearing and pre-
(4) Record of proceedings. (i) The hear-
hearing proceedings;
ing shall be either stenographically re-
ported verbatim or tape recorded, and (B) Agree to stipulations of facts
thereupon transcribed by an official re- which shall be made a part of the
porter designated by the Presiding Offi- record.
cer; (7) Recommended decision. (i) Within 30
(ii) All orders issued by the Presiding days after the filing of proposed find-
Officer, transcripts of testimony, writ- ings and conclusions and reply briefs,
ten statements of position, stipula- the Presiding Officer shall evaluate the
tions, exhibits, motions, briefs, and record before him/her, the proposed
other written material of any kind sub- findings and conclusions and any briefs
mitted in the hearing shall be a part of filed by the parties, and shall prepare a
the record and shall be available for in- recommended decision, and shall cer-
spection or copying in the Office of the tify the entire record, including the
Hearing Clerk, upon payment of costs. recommended decision, to the Adminis-
Inquiries may be made at the Office of trator.
the Administrative Law Judges, Hear- (ii) Copies of the recommended deci-
ing Clerk, 1200 Pennsylvania Ave., NW., sion shall be served upon all parties.
Washington, DC 20460; (iii) Within 20 days after the certifi-
(iii) Upon notice to all parties the cation and filing of the record and rec-
Presiding Officer may authorize correc- ommended decision, all parties may
tions to the transcript which involve file with the Administrator exceptions
matters of substance; to the recommended decision and a
(iv) An original and two (2) copies of supporting brief.

all written submissions to the hearing (8) Decision by Administrator. (i) With-
shall be filed with the Hearing Clerk; in 60 days after certification of the
338
record and filing of the Presiding Offi- Subpart G—Eligible Indian Tribes
cer’s recommended decision, the Ad-
ministrator shall review the record be- SOURCE: 58 FR 8183, Feb. 11, 1993, unless
fore him and issue his own decision. otherwise noted.
(ii) If the Administrator concludes
that the State has administered the § 233.60 Requirements for eligibility.
program in conformity with the Act Section 518(e) of the CWA, 33 U.S.C.
and this part, his decision shall con- 1378(e), authorizes the Administrator
stitute ‘‘final agency action’’ within to treat an Indian Tribe as eligible to
the meaning of 5 U.S.C. 704. apply for the 404 permit program under
(iii) If the Administrator concludes section 404(g)(1) if it meets the fol-
that the State has not administered lowing criteria:
the program in conformity with the (a) The Indian Tribe is recognized by
Act and regulations, he shall list the the Secretary of the Interior.
deficiencies in the program and provide (b) The Indian Tribe has a governing
the State a reasonable time, not to ex- body carrying out substantial govern-
ceed 90 days, to take such appropriate mental duties and powers.
corrective action as the Administrator (c) The functions to be exercised by
determines necessary. the Indian Tribe pertain to the man-
(iv) Within the time prescribed by agement and protection of water re-
the Administrator the State shall take sources which are held by an Indian
such appropriate corrective action as Tribe, held by the Untied States in
required by the Administrator and trust for the Indians, held by a member
shall file with the Administrator and of an Indian Tribe if such property in-
all parties a statement certified by the terest is subject to a trust restriction
State Director that appropriate correc- an alienation, or otherwise within the
tive action has been taken. borders of the Indian reservation.
(v) The Administrator may require a (d) The Indian Tribe is reasonably ex-
further showing in addition to the cer- pected to be capable, in the Adminis-
tified statement that corrective action trator’s judgment, of carrying out the
has been taken. functions to be exercised, in a manner
(vi) If the state fails to take appro- consistent with the terms and purposes
priate corrective action and file a cer- of the Act and applicable regulations,
of an effective section 404 dredge and
tified statement thereof within the
fill permit program.
time prescribed by the Administrator,
the Administrator shall issue a supple- [58 FR 8183, Feb. 11, 1993, as amended at 59
mentary order withdrawing approval of FR 64345, Dec. 14, 1994]
the State program. If the State takes
appropriate corrective action, the § 233.61 Determination of Tribal eligi-
bility.
Administrator shall issue a supple-
mentary order stating that approval of An Indian Tribe may apply to the Re-
authority is not withdrawn. gional Administrator for a determina-
(vii) The Administrator’s supple- tion that it meets the statutory cri-
mentary order shall constitute final teria which authorize EPA to treat the
Agency action within the meaning of 5 Tribe in a manner similar to that in
which it treats a State, for purposes of
U.S. 704.
the section 404 program. The applica-
(d) Withdrawal of authorization
tion shall be concise and describe how
under this section and the Act does not the Indian Tribe will meet each of the
relieve any person from complying requirements of § 233.60. The applica-
with the requirements of State law, tion should include the following infor-
nor does it affect the validity of ac- mation:
tions taken by the State prior to with- (a) A statement that the Tribe is rec-
drawal. ognized by the Secretary of the Inte-
[53 FR 20776, June 1, 1988, as amended at 57 rior.

FR 5346, Feb. 13, 1992] (b) A descriptive statement dem-
onstrating that the Tribal governing
339
§ 233.62 40 CFR Ch. I (7–1–21 Edition)
body is currently carrying out substan- (4) A description of the existing, or

tial governmental duties and powers proposed, agency of the Indian Tribe
over a defined area. This Statement which will assume primary responsi-
should: bility for establishing and admin-
(1) Describe the form of the Tribal istering a section 404 dredge and fill
government. permit program or plan which proposes
(2) Describe the types of govern- how the Tribe will acquire additional
mental functions currently performed administrative and technical expertise.
by the Tribal governing body, such as, The plan must address how the Tribe
but not limited to, the exercise of po- will obtain the funds to acquire the ad-
lice powers affecting (or relating to) ministrative and technical expertise.
the health, safety, and welfare of the
(5) A description of the technical and
affected population; taxation; and the
exercise of the power of eminent do- administrative abilities of the staff to
main; and administer and manage an effective,
(3) Identify the source of the Tribal environmentally sound 404 dredge and
government’s authority to carry out fill permit program.
the governmental functions currently (e) The Administrator may, at his
being performed. discretion, request further documenta-
(c)(1) A map or legal description of tion necessary to support a Tribal ap-
the area over which the Indian Tribe plication.
asserts regulatory authority pursuant (f) If the Administrator has pre-
to section 518(e)(2) of the CWA and viously determined that a Tribe has
§ 233.60(c); met the requirements for eligibility or
(2) A statement by the Tribal Attor- for ‘‘treatment as a State’’ for pro-
ney General (or equivalent official) grams authorized under the Safe
which describes the basis for the Drinking Water Act or the Clean Water
Tribe’s assertion under section 518(e)(2) Act, then that Tribe need only provide
(including the nature or subject matter additional information unique to the
of the asserted regulatory authority) particular statute or program for
which may include a copy of docu- which the Tribe is seeking additional
ments such as Tribal constitutions, by-
authorization.
laws, charters, executive orders, codes,
ordinances, and/or resolutions which (Approved by the Office of Management and
support the Tribe’s assertion of author- Budget under control number 2040–0140)
ity; [58 FR 8183, Feb. 11, 1993, as amended at 59
(d) A narrative statement describing FR 64345, Dec. 14, 1994]
the capability of the Indian Tribe to
administer an effective 404 permit pro- § 233.62 Procedures for processing an
gram. The Statement may include: Indian Tribe’s application.
(1) A description of the Indian Tribe’s
(a) The Regional Administrator shall
previous management experience
process an application of an Indian
which may include the administration
of programs and services authorized by Tribe submitted pursuant to § 233.61 in
the Indian Self Determination & Edu- a timely manner. He shall promptly
cation Act (25 U.S.C. 450 et seq.), The notify the Indian Tribe of receipt of the
Indian Mineral Development Act (25 application.
U.S.C. 2101 et seq.), or the Indian Sani- (b) The Regional Administrator shall
tation Facility Construction Activity follow the procedures described in
Act (42 U.S.C. 2004a). § 233.15 in processing a Tribe’s request
(2) A list of existing environmental to assume the 404 dredge and fill per-
or public health programs adminis- mit program.
tered by the Tribal governing body,
[58 FR 8183, Feb. 11, 1993, as amended at 59
and a copy of related Tribal laws, regu-
FR 64346, Dec. 14, 1994]
lations, and policies;
(3) A description of the entity (or en-
tities) which exercise the executive,

legislative, and judicial functions of
the Tribal government.
340
Subpart H—Approved State the Michigan Administrative Code (1979

Programs ed., 1982 supp.).
(b) Other Laws. The following stat-
§ 233.70 Michigan. utes and regulations, although not in-
corporated by reference, also are part
The applicable regulatory program of the approved State-administered
for discharges of dredged or fill mate- program:
rial into waters of the United States in (1) Administrative Procedures Act,
Michigan that are not presently used, MCLA 24.201 et seq.
or susceptible for use in their natural (2) Freedom of Information Act,
condition or by reasonable improve- MCLA 15.231 et seq.
ment as a means to transport inter- (3) Open Meetings Act, MCLA 15.261
state or foreign commerce shoreward et seq.
to the ordinary high water mark, in- (4) Michigan Environmental Protec-
cluding wetlands adjacent thereto, ex- tion Act, MCLA 691.1201 et seq.
cept those on Indian lands, is the pro- (c) Memoranda of Agreement. (1) The
gram administered by the Michigan Memorandum of Agreement between
Department of Natural Resources, ap- EPA Region V and the Michigan De-
proved by EPA, pursuant to section 404 partment of Natural resources, signed
of the CWA. Notice of this approval by the EPA Region V Administrator on
was published in the FEDERAL REG- December 9, 1983.
ISTER on October 2, 1984; the effective (2) The Memorandum of Agreement
date of this program is October 16, 1984. between the U.S. Army Corps of Engi-
This program consists of the following neers and the Michigan Department of
elements, as submitted to EPA in the Natural Resources, signed by the Com-
State’s program application. mander, North Central Division, on
(a) Incorporation by reference. The re- March 27, 1984.
quirements set forth in the State stat- (d) Statement of Legal Authority. (1)
utes and regulations cited in this para- ‘‘Attorney General Certification sec-
graph are hereby incorporated by ref- tion 404/State of Michigan’’, signed by
erence and made a part of the applica- Attorney General of Michigan, as sub-
ble 404 Program under the CWA for the mitted with the request for approval of
State of Michigan. This incorporation ‘‘The State of Michigan 404 Program’’,
by reference was approved by the Di- October 26, 1983.
rector of the Federal Register on Octo- (e) The Program description and any
ber 16, 1984. other materials submitted as part of
(1) The Great Lakes Submerged the original application or supplements
Lands Act, MCL 322.701 et seq., re- thereto.
printed in Michigan 1983 Natural Re- (33 U.S.C. 13344, CWA 404)
sources Law.
[49 FR 38948, Oct. 2, 1984. Redesignated at 53
(2) The Water Resources Commission FR 20776, June 6, 1988. Redesignated at 58 FR
Act, MCL 323.1 et seq., reprinted in 8183, Feb. 11, 1993]
Michigan 1983 Natural Resources Law.
(3) The Goemaere-Anderson Wetland § 233.71 New Jersey.
Protection Act, MCL 281.701 et seq., re- The applicable regulatory program
printed in Michigan 1983 Natural Re- for discharges of dredged or fill mate-
sources Law. rial into waters of the United States in
(4) The Inland Lakes and Stream Act, New Jersey that are not presently
MCL 281.951 et seq., reprinted in Michi- used, or susceptible for use in their
gan 1983 Natural Resources Law. natural condition or by reasonable im-
(5) The Michigan Administrative Pro- provement as a means to transport
cedures Act of 1969, MCL 24–201 et seq. interstate or foreign commerce shore-
(6) An act concerning the Erection of ward to the ordinary high water mark,
Dams, MCL 281.131 et seq., reprinted in including wetlands adjacent thereto,
Michigan 1983 Natural Resources Law. except those on Indian lands, is the
(7) R 281.811 through R 281.819 inclu- program administered by the New Jer-
sive, R 281.821, R 281.823, R 281.824, R sey Department of Environmental Pro-

281.832 through R 281.839 inclusive, and tection and Energy, approved by EPA,
R 281.841 through R 281.845 inclusive of pursuant to section 404 of the CWA.
341
The program becomes effective March (5) Environmental Rights Act,

2, 1994. This program consists of the N.J.S.A. 2A:35A–1 et seq.
following elements, as submitted to (6) Department of Environmental
EPA in the State’s program applica- Protection (and Energy), N.J.S.A.
tion: 13:1D–1 et seq.
(a) Incorporation by reference. The re- (7) Water Pollution Control Act,
quirements set forth in the State stat- N.J.S.A. 58:10A–1 et seq.
utes and regulations cited in paragraph (d) Memoranda of agreement. The fol-
(b) of this section are hereby incor- lowing memoranda of agreement, al-
porated by reference and made a part though not incorporated by reference
of the applicable 404 Program under the also are part of the approved State ad-
CWA for the State of New Jersey, for ministered program:
incorporation by reference by the Di- (1) The Memorandum of Agreement
rector of the Federal Register in ac- between EPA Region II and the New
cordance with 552(a) and 1 CFR part 51. Jersey Department of Environmental
Material is incorporated as it exists at Protection and Energy, signed by the
1 p.m. on March 2, 1994 and notice of EPA Region II Acting Regional Admin-
any change in the material will be pub- istrator on June 15, 1993.
lished in the FEDERAL REGISTER. (2) The Memorandum of Agreement
(b) Copies of materials incorporated between the U.S. Army Corps of Engi-
by reference may be inspected at the neers and the New Jersey Department
National Archives and Records Admin- of Environmental Protection and En-
istration (NARA). For information on ergy, signed by the Division Engineer
the availability of this material at on March 4, 1993.
NARA, call 202–741–6030, or go to: http:// (3) The Memorandum of Agreement
www.archives.gov/federallregister/ between EPA Region II, the New Jer-
codeloflfederallregulations/ sey Department of Environmental Pro-
ibrllocations.html. Copies of materials tection and Energy, and the U.S. Fish
incorporated by reference may be ob- and Wildlife Service, signed by all par-
tained or inspected at the EPA UST ties on December 22, 1993.
Docket, located at 1235 Jefferson Davis (e) Statement of legal authority. The
Highway, First Floor , Arlington, VA following documents, although not in-
22202 (telephone number: 703–603–9231), corporated by reference, also are part
or send mail to Mail Code 5305G, 1200 of the approved State administered
Pennsylvania Ave., NW., Washington, program:
DC 20460, and at the Library of the Re- (1) Attorney General’s Statement,
gion 2 Regional Office, Federal Office signed by the Attorney General of New
Jersey, as submitted with the request
Building, 26 Federal Plaza, New York,
for approval of The State of New Jer-
NY 10278.
sey’s 404 Program.
(1) New Jersey Statutory Require-
(2) The program description and any
ments Applicable to the Freshwater
other materials submitted as part of
Wetlands Program, 1994.
the original application or supplements
(2) New Jersey Regulatory Require-
thereto.
ments Applicable to the Freshwater
Wetlands Program, 1994. [59 FR 9933, Mar. 2, 1994, as amended at 65 FR
(c) Other laws. The following statutes 47325, Aug. 2, 2000; 69 FR 18801, Apr. 9, 2004]
and regulations, although not incor-
porated by reference, also are part of PART 238—DEGRADABLE PLASTIC
the approved State-administered pro- RING CARRIERS
gram:
(1) Administrative Procedure Act, Subpart A—General Provisions
N.J.S.A. 52:14B–1 et seq.
(2) New Jersey Uniform Administra- Sec.
238.10 Purpose and applicability.
tive Procedure Rules, N.J.A.C. 1:1–1.1 et 238.20 Definitions.
seq.
(3) Open Public Meetings Act, Subpart B—Requirement
N.J.S.A. 10:4–6 et seq.

(4) Examination and Copies of Public 238.30 Requirement.
Records, N.J.S.A. 47:1A–1 et seq. AUTHORITY: 42 U.S.C. 6914b–1.
342
SOURCE: 59 FR 9870, Mar. 1, 1994, unless oth- End Point in Degradable Polyolefins
erwise noted. Using a Tensile Test’’, after the ring
carrier is exposed to, either:
Subpart A—General Provisions (1) 250 light-hours of UV in accord-
ance with ASTM D–5208–91,’’ Standard
§ 238.10 Purpose and applicability. Practice for Operating Fluorescent Ul-
The purpose of this part is to require traviolet (UV) and Condensation Appa-
that plastic ring carriers be made of ratus for Exposure of Photodegradable
degradable materials as described in Plastics’’, using cycle A; or
§§ 238.20 and 238.30. The requirements of (2) 35 days, during June and July, to
this part apply to all processors and marine conditions in a location below
importers of plastic ring carriers in the the latitude 26 degrees North, in conti-
United States as defined in § 238.20. nental United States waters.
(b) The incorporation by reference of
§ 238.20 Definitions. ASTM D–3826–91, ‘‘Standard Practice
For the purpose of this part: for Determining Degradation End
Percent elongation at break means the Point in Degradable Polyolefins Using
percent increase in length of the plas- a Tensile Test’’, and ASTM D–5208–91,
tic material caused by a tensile load. ‘‘Standard Practice for Operating Fluo-
Percent elongation at break shall be rescent Ultraviolet (UV) and Condensa-
calculated by dividing the extension at tion Apparatus for Exposure of
the moment of rupture of the specimen Photodegradable Plastics,’’ was ap-
by the initial gage length of the speci- proved by the director of the Federal
men and multiplying by 100. Register in accordance with 5 U.S.C.
Processor means the persons or enti- 552(a) and 1 CFR part 51. Copies are
ties that produce ring carriers ready available from the American Society of
for use as beverage carriers. Testing and Materials, 1916 Race
Ring carrier means any plastic ring Street, Philadelphia, PA 19103. Copies
carrier device that contains at least may be inspected at the Resource Con-
one hole greater than 13⁄4 inches in di- servation and Recovery Act (RCRA)
ameter which is made, used, or de- Docket Information Center, (5305), U.S.
signed for the purpose of packaging, Environmental Protection Agency
transporting, or carrying multipack- Headquarters, 1200 Pennsylvania Ave.,
aged cans or bottles. NW., Washington, DC 20460 or at the
National Archives and Records Admin-
Subpart B—Requirement istration (NARA). For information on
the availability of this material at
§ 238.30 Requirement. NARA, call 202–741–6030, or go to: http://
(a) No processor or person shall man- www.archives.gov/federallregister/
ufacture or import, in bulk, ring car- codeloflfederallregulations/
riers intended for use in the United ibrllocations.html. These materials are
States unless they are designed and incorporated as they exist on the date
manufactured so that the ring carriers of the approval and notice of any
degrade to the point of 5 percent elon- change in these materials will be pub-
gation at break, when tested in accord- lished in the FEDERAL REGISTER.
ance with ASTM D–3826–91, ‘‘Standard [59 FR 9870, Mar. 1, 1994, as amended at 65 FR
Practice for Determining Degradation 47325, Aug. 2, 2000; 69 FR 18803, Apr. 9, 2004]
343
SUBCHAPTER I—SOLID WASTES
PART 239—REQUIREMENTS FOR § 239.2 Scope and definitions.

STATE PERMIT PROGRAM DETER- (a) Scope. (1) Nothing in this part pre-
MINATION OF ADEQUACY cludes a state from adopting or enforc-
ing requirements that are more strin-
Subpart A—General gent or more extensive than those re-
quired under this part or from oper-
Sec.
ating a permit program or other sys-
239.1 Purpose.
239.2 Scope and definitions.
tem of prior approval and conditions
with more stringent requirements or a
Subpart B—State Program Application broader scope of coverage than that re-
quired under this part.
239.3 Components of program application. (2) All states which develop and im-
239.4 Narrative description of state permit plement a Subtitle D permit program
program.
must submit an application for an ade-
239.5 State legal certification.
quacy determination for purposes of
Subpart C—Requirements for Adequate this part. Except as provided in § 239.12,
Permit Programs state Subtitle D permit programs
which received full approval prior to
239.6 Permitting requirements. November 23, 1998 need not submit new
239.7 Requirements for compliance moni- applications for approval under this
toring authority. part. Similarly, except as provided in
239.8 Requirements for enforcement author- § 239.12, states that received partial ap-
ity. proval of their Subtitle D permit pro-
239.9 Intervention in civil enforcement programs prior to November 23, 1998 need
ceedings.
not reapply under this part for ap-
Subpart D—Adequacy Determination proval for those program elements EPA
Procedures has already determined to be adequate.
(3) If EPA determines that a state
239.10 Criteria and procedures for making Subtitle D permit program is inad-
adequacy determinations. equate, EPA will have the authority to
239.11 Approval procedures for partial ap- enforce the Subtitle D federal revised
proval.
criteria on the RCRA section 4010(c)
239.12 Modifications of state programs.
239.13 Criteria and procedures for with-
regulated facilities under the state’s
drawal of determination of adequacy. jurisdiction.
(b) Definitions. (1) For purposes of
AUTHORITY: 42 U.S.C. 6912, 6945. this part:
SOURCE: 63 FR 57040, Oct. 23, 1998, unless Administrator means the Adminis-
otherwise noted. trator of the U.S. Environmental Pro-
tection Agency or any authorized rep-
Subpart A—General resentative.
Approved permit program or approved
§ 239.1 Purpose. program means a state Subtitle D per-
This part specifies the requirements mit program or other system of prior
that state permit programs must meet approval and conditions required under
to be determined adequate by the EPA section 4005(c)(1)(B) of RCRA that has
under section 4005(c)(1)(C) of the Re- been determined to be adequate by
source Conservation and Recovery Act EPA under this part.
(RCRA or the Act) and the procedures Approved state means a state whose
EPA will follow in determining the Subtitle D permit program or other
adequacy of state Subtitle D permit system of prior approval and condi-
programs or other systems of prior ap- tions required under section
proval and conditions required to be 4005(c)(1)(B) of RCRA has been deter-

adopted and implemented by states mined to be adequate by EPA under
under RCRA section 4005(c)(1)(B). this part.
344
Guidance means policy memorandum, sure, post-closure care, corrective ac-

an application for approval under this tion, and financial assurance of Sub-
Part, or other technical or policy docu- title D regulated facilities.
ments that supplement state laws and Subtitle D regulated facilities means all
regulations. These documents provide solid waste disposal facilities subject
direction with regard to how state to the revised criteria promulgated by
agencies should interpret their permit EPA under the authority of RCRA Sec-
program requirements and must be tion 4010(c).
consistent with state laws and regula- (c) The definitions in 40 CFR part 257,
tions. subpart B and 40 CFR part 258 apply to
Implementing agency means the state all subparts of this part.
and/or local agency(ies) responsible for
carrying out an approved state permit Subpart B—State Program
program. Application
Lead state agency means the state
agency which has the legal authority § 239.3 Components of program appli-
and oversight responsibilities to imple- cation.
ment the permit program or other sys- Any state that seeks a determination
tem of prior approval and conditions to of adequacy under this part must sub-
ensure that facilities regulated under mit an application to the Regional Ad-
section 4010(c) of Subtitle D of RCRA ministrator in the appropriate EPA Re-
comply with the requirements of the gion. The application must identify the
approved state permit program and/or scope of the program for which the
has been designated as lead agency. state is seeking approval (i.e., which
Permit or prior approval and conditions class of Subtitle D regulated facilities
means any authorization, license, or are covered by the application). The
equivalent control document issued application also must demonstrate
under the authority of the state regu- that the state’s authorities and proce-
lating the location, design, operation, dures are adequate to ensure compli-
ground-water monitoring, closure, ance with the relevant Subtitle D fed-
post-closure care, corrective action, eral revised criteria and that its permit
and financial assurance of Subtitle D program is uniformly applicable to all
regulated facilities. the relevant Subtitle D regulated fa-
Permit documents means permit appli- cilities within the state’s jurisdiction.
cations, draft and final permits, or The application must contain the fol-
other documents that include applica- lowing parts:
ble design and management conditions (a) A transmittal letter, signed by
in accordance with the Subtitle D fed- the State Director, requesting program
eral revised criteria, found at 40 CFR approval. If more than one state agen-
part 257, subpart B and 40 CFR part 258, cy has implementation responsibilities,
and the technical and administrative the transmittal letter must designate a
information used to explain the basis lead agency and be jointly signed by all
of permit conditions. state agencies with implementation re-
Regional Administrator means any one sponsibilities or by the State Governor;
of the ten Regional Administrators of (b) A narrative description of the
the U.S. Environmental Protection state permit program in accordance
Agency or any authorized representa- with § 239.4;
tive. (c) A legal certification in accord-
State Director means the chief admin- ance with § 239.5;
istrative officer of the lead state agen- (d) Copies of all applicable state stat-
cy responsible for implementing the utes, regulations, and guidance.
state permit program for Subtitle D
regulated facilities. § 239.4 Narrative description of state
State program or permit program means permit program.
all the authorities, activities, and pro- The description of a state’s program
cedures that comprise the state’s sys- must include:
tem of prior approval and conditions (a) An explanation of the jurisdiction

for regulating the location, design, op- and responsibilities of all state agen-
eration, ground-water monitoring, clo- cies and local agencies implementing
345
§ 239.5 40 CFR Ch. I (7–1–21 Edition)
the permit program and description of (c) If any laws, regulations, or guid-
the coordination and communication ance are not enacted or fully effective
responsibilities of the lead state agen- when the legal certification is signed,
cy to facilitate communications be- the certification should specify what
tween EPA and the state if more than portion(s) of laws, regulations, or guid-
one state agency has implementation ance are not yet enacted or fully effec-
responsibilities; tive and when they are expected to be
(b) An explanation of how the state enacted or fully effective.
will ensure that existing and new fa- The Agency may make a tentative
cilities are permitted or otherwise ap- determination of adequacy using this
proved and in compliance with the rel- legal certification. The state must sub-
evant Subtitle D federal revised cri- mit a revised legal certification meet-
teria; ing the requirements of paragraph (a)
(c) A demonstration that the state of this section and, if appropriate,
meets the requirements in §§ 239.6, paragraph (b) of this section along with
239.7, 239.8, and 239.9; all the applicable fully enacted and ef-
(d) The number of facilities within fective statutes, regulations, or guid-
the state’s jurisdiction that received ance, prior to the Agency making a
waste on or after the following dates: final determination of adequacy. If the
(1) For municipal solid waste landfill statutes, regulations or guidance origi-
units, October 9, 1991. nally submitted under § 239.3(d) and
(2) For non-municipal, non-hazardous certified to under this section are
waste disposal units that receive modified in a significant way, the Re-
CESQG hazardous waste, January 1, gional Administrator will publish a
1998. new tentative determination to ensure
adequate public participation.
(e) A discussion of staff resources
available to carry out and enforce the
relevant state permit program. Subpart C—Requirements for
(f) A description of the state’s public Adequate Permit Programs
participation procedures as specified in
§ 239.6(a) through (c). § 239.6 Permitting requirements.
(a) State law must require that:
§ 239.5 State legal certification. (1) Documents for permit determina-
(a) A state must submit a written tions are made available for public re-
certification from the state Attorney view and comment; and
General that the laws, regulations, and (2) Final determinations on permit
any applicable guidance cited in the applications are made known to the
application are enacted at the time the public.
certification is signed and are fully ef- (b) The state shall have procedures
fective when the state permit program that ensure that public comments on
is approved. This certification may be permit determinations are considered.
signed by the independent legal counsel (c) The state must fully describe its
for the state rather than the Attorney public participation procedures for per-
General, provided that such counsel mit issuance and post-permit actions
has full authority to independently in the narrative description required
represent the lead state agency in under § 239.4 and include a copy of these
court on all matters pertaining to the procedures in its permit program appli-
state program. cation.
(b) If guidance is to be used to supple- (d) The state shall have the authority
ment statutes and regulations, the to collect all information necessary to
state legal certification must discuss issue permits that are adequate to en-
that the state has the authority to use sure compliance with the relevant 40
guidance to develop enforceable per- CFR part 257, subpart B or 40 CFR part
mits which will ensure compliance 258 federal revised criteria.
with relevant standards issued pursu- (e) For municipal solid waste landfill
ant to RCRA section 4010(c) and that units, state law must require that:
the guidance was duly issued in accord- (1) Prior to construction and oper-
ance with state law. ation, all new municipal solid waste
346
landfill units shall have a permit incor- this section by the deadlines identified
porating the conditions identified in in 40 CFR 257.5;
paragraph (e)(3) of this section; (3) The state shall have the authority
(2) All existing municipal solid waste to impose requirements for non-munic-
landfill units shall have a permit incor- ipal, non-hazardous waste disposal
porating the conditions identified in units that receive CESQG hazardous
paragraph (e)(3) of this section by the waste adequate to ensure compliance
deadlines identified in 40 CFR 258.1; with 40 CFR part 257, subpart B. These
(3) The state shall have the authority requirements shall include:
to impose requirements for municipal (i) General standards which achieve
solid waste landfill units adequate to compliance with 40 CFR part 257, sub-
ensure compliance with 40 CFR part part B (§ 257.5);
258. These requirements shall include: (ii) Location restrictions for non-mu-
(i) General standards which achieve nicipal, non-hazardous waste disposal
compliance with 40 CFR part 258, sub- units which achieve compliance with 40
part A; CFR 257.7 through 257.13;
(ii) Location restrictions for munic- (iii) Ground-water monitoring and
ipal solid waste landfill units which corrective action standards for non-
achieve compliance with 40 CFR part municipal, non-hazardous waste dis-
258, subpart B; posal units which achieve compliance
with 40 CFR 257.21 through 257.28; and,
(iii) Operating criteria for municipal
(iv) Recordkeeping for non-munic-
solid waste landfill units which achieve
ipal, non-hazardous waste disposal
compliance with 40 CFR part 258, sub-
units which achieves compliance with
part C;
40 CFR 257.30.
(iv) Design criteria for municipal
solid waste landfill units which achieve § 239.7 Requirements for compliance
compliance with 40 CFR part 258, sub- monitoring authority.
part D;
(a) The state must have the author-
(v) Ground-water monitoring and cor- ity to:
rective action standards for municipal (1) Obtain any and all information
solid waste landfill units which achieve necessary, including records and re-
compliance with 40 CFR part 258, sub- ports, from an owner or operator of a
part E; Subtitle D regulated facility, to deter-
(vi) Closure and post-closure care mine whether the owner or operator is
standards for municipal solid waste in compliance with the state require-
landfill units which achieve compli- ments;
ance with 40 CFR part 258, subpart F; (2) Conduct monitoring or testing to
and ensure that owners and operators are
(vii) Financial assurance standards in compliance with the state require-
for municipal solid waste landfill units ments; and
which achieve compliance with 40 CFR (3) Enter any site or premise subject
part 258, subpart G. to the permit program or in which
(f) For non-municipal, non-hazardous records relevant to the operation of
waste disposal units that receive Subtitle D regulated facilities or ac-
CESQG waste, state law must require tivities are kept.
that: (b) A state must demonstrate that its
(1) Prior to construction and oper- compliance monitoring program pro-
ation, all new non-municipal, non-haz- vides for inspections adequate to deter-
ardous waste disposal units that re- mine compliance with the approved
ceive CESQG hazardous waste shall state permit program.
have a permit incorporating the condi- (c) A state must demonstrate that its
tions identified in paragraph (f)(3) of compliance monitoring program pro-
this section; vides mechanisms or processes to:
(2) All existing non-municipal, non- (1) Verify the accuracy of informa-
hazardous waste disposal units that re- tion submitted by owners or operators
ceive CESQG hazardous waste shall of Subtitle D regulated facilities;

have a permit incorporating the condi- (2) Verify the adequacy of methods
tions identified in paragraph (f)(3) of (including sampling) used by owners or
347
§ 239.8 40 CFR Ch. I (7–1–21 Edition)
operators in developing that informa- (3) It will not oppose citizen interven-
tion; tion when permissive intervention is
(3) Produce evidence admissible in an allowed by statute, rule, or regulation.
enforcement proceeding; and
(4) Receive and ensure proper consid- Subpart D—Adequacy
eration of information submitted by Determination Procedures
the public.
§ 239.10 Criteria and procedures for
§ 239.8 Requirements for enforcement making adequacy determinations.
authority.
(a) The State Director seeking an
Any state seeking approval must adequacy determination must submit
have the authority to impose the fol- to the appropriate Regional Adminis-
lowing remedies for violation of state trator an application in accordance
program requirements: with § 239.3.
(a) To restrain immediately and ef- (b) Within 30 days of receipt of a
fectively any person by administrative state program application, the Re-
or court order or by suit in a court of gional Administrator will review the
competent jurisdiction from engaging application and notify the state wheth-
in any activity which may endanger or er its application is administratively
cause damage to human health or the complete in accordance with the appli-
environment. cation components required in § 239.3.
(b) To sue in a court of competent ju- The 180-day review period for final de-
risdiction to enjoin any threatened or termination of adequacy, described in
continuing activity which violates any paragraph (d) of this section, begins
statute, regulation, order, or permit when the Regional Administrator
which is part of or issued pursuant to deems a state application to be admin-
the state program. istratively complete.
(c) To sue in a court of competent ju- (c) After receipt and review of a com-
risdiction to recover civil penalties for plete application, the Regional Admin-
violations of a statute or regulation istrator will make a tentative deter-
which is part of the state program or of mination on the adequacy of the state
program. The Regional Administrator
an order or permit which is issued pur-
shall publish the tentative determina-
suant to the state program.
tion on the adequacy of the state pro-
§ 239.9 Intervention in civil enforce- gram in the FEDERAL REGISTER. Notice
ment proceedings. of the tentative determination must:
(1) Specify the Regional Administra-
Any state seeking approval must pro- tor’s tentative determination;
vide for intervention in the state civil (2) Afford the public at least 30 days
enforcement process by providing ei- after the notice to comment on the
ther: state application and the Regional Ad-
(a) Authority that allows interven- ministrator’s tentative determination;
tion, as a right, in any civil action to (3) Include a specific statement of the
obtain remedies specified in § 239.8 by areas of concern, if the Regional Ad-
any citizen having an interest that is ministrator indicates the state pro-
or may be adversely affected; or, gram may not be adequate;
(b) Assurance by the appropriate (4) Note the availability for inspec-
state agency that: tion by the public of the state permit
(1) It will provide notice and oppor- program application; and
tunity for public involvement in all (5) Indicate that a public hearing will
proposed settlements of civil enforce- be held by EPA if sufficient public in-
ment actions (except where immediate terest is expressed during the comment
action is necessary to adequately pro- period. The Regional Administrator
tect human health and the environ- may determine when such a hearing is
ment); and, necessary to clarify issues involved in
(2) It will investigate and provide re- the tentative adequacy determination.
sponses to citizen complaints about If held, the public hearing will be
violations; and, scheduled at least 45 days from public
348
notice of such hearing. The public com- full approval within two years of final
ment period may be continued after approval of the partial permit program.
the hearing at the discretion of the Re- The Regional Administrator and the
gional Administrator. State Director must agree to the
(d) Within 180 days of determining schedule.
that a state program application is ad- (c) The application for partial ap-
ministratively complete, the Regional proval must fully meet the require-
Administrator will make a final deter- ments of subparts B and C of this part.
mination of adequacy after review and (d) States with partially approved
consideration of all public comments, permit programs are only approved for
unless the Regional Administrator, those relevant provisions of the Sub-
after consultation with the State Di- title D criteria included in the partial
rector, agrees to extend the review pe- approval.
riod. The Regional Administrator will (e) Any partial approval adequacy de-
give notice of the final determination termination made by the Regional Ad-
in the FEDERAL REGISTER. The docu- ministrator pursuant to this section
ment must include a statement of the and § 239.10 shall expire two years from
reasons for the determination and a re- the effective date of the final partial
sponse to significant comments re- program adequacy determination un-
ceived. less the Regional Administrator grants
(e) For all states that do not submit an extension. States seeking an exten-
an application, the Administrator or sion must submit a request to the ap-
Regional Administrator may issue a propriate Regional Administrator,
final determination of inadequacy in must provide good cause for missing
the FEDERAL REGISTER declaring those the deadline, and must supply a new
state permit programs inadequate to schedule to revise necessary laws, regu-
ensure compliance with the relevant lations, and/or guidance to obtain full
Subtitle D federal revised criteria. approval. The appropriate Regional Ad-
Such states may apply later for a de- ministrator will decide if there is good
termination of adequacy. cause and if the new schedule is real-
istic. If the Regional Administrator ex-
§ 239.11 Approval procedures for par- tends the expiration date, the Region
tial approval. will publish a document in the FED-
(a) EPA may partially approve state ERAL REGISTER along with the new ex-
permit programs that do not meet all piration date. A state with partial ap-
of the requirements in § 239.6(e)(3) (i.e., proval shall submit an amended appli-
do not incorporate all of the relevant cation meeting all of the requirements
Subtitle D federal revised criteria). of this part and have that application
Such permit programs may be partially approved by the two-year deadline or
approved if: the amended date set by the Regional
(1) The appropriate Regional Admin- Administrator.
istrator determines that the state’s (f) The Regional Administrator will
permit program largely meets the follow the adequacy determination pro-
technical requirements of § 239.6 and cedures in § 239.10 for all initial applica-
meets all other requirements of this tions for partial program approval and
part; follow the adequacy determination pro-
(2) Changes to a specific part(s) of the cedures in § 239.12(f) for any amend-
state permit program are required in ments for approval for unapproved sec-
order for the state program to fully tions of the relevant Subtitle D federal
meet the requirements of § 239.6; and revised criteria.
(3) Provisions not included in the
partially approved portions of the state § 239.12 Modifications of state pro-
permit program are clearly identifiable grams.
and separable subsets of the relevant (a) Approved state permit programs
Subtitle D federal revised criteria. may be modified for various reasons,
(b) A state applying for partial ap- such as changes in federal or state
proval must include in its application a statutory or regulatory authority.

schedule to revise the necessary laws, (b) If the federal statutory or regu-
regulations, and/or guidance to obtain latory authorities that have significant
349
§ 239.13 40 CFR Ch. I (7–1–21 Edition)
implications for state permit programs changed or are being amended. For
change, approved states may be re- such revised programs, as well as for
quired to revise their permit programs. those from states seeking EPA ap-
These changes may necessitate submis- proval of permit programs for state
sion of a revised application. Such a regulation of non-municipal, non-haz-
change at the federal level and result- ardous waste disposal units which re-
ant state requirements would be made ceive conditionally exempt small quan-
known to the states either in a FED- tity generator hazardous waste, the
ERAL REGISTER document containing Regional Administrator will make an
the change or through the appropriate adequacy determination using the cri-
EPA Regional Office. teria found in § 239.10.
(c) States that modify their programs (g) For revised applications that do
must notify the Regional Adminis- not incorporate permit programs for
trator of the modifications. Program additional classifications of Subtitle D
modifications include changes in state regulated facilities and for all amended
statutory or regulatory authority or applications in the case of partially ap-
relevant guidance or shifting of respon- proved programs, the appropriate Re-
sibility for the state program within gional Administrator shall provide for
the lead agency or to a new or different public participation using the proce-
state agency or agencies. Changes to dures outlined in § 239.10 or, at the Re-
the state’s permit program, as de- gional Administrator’s discretion,
scribed in its application which may using the following procedures.
result in the program becoming inad- (1) The Regional Administrator will
equate, must be reported to the Re- publish an adequacy determination in
gional Administrator. In addition, the FEDERAL REGISTER summarizing
changes to a state’s basic statutory or the Agency’s decision and the por-
regulatory authority or guidance tion(s) of the state permit program af-
which were not part of the state’s ini-
fected and providing an opportunity to
tial application, but may have a sig-
comment for a period of at least 60
nificant impact on the adequacy of the
days.
state’s permit program, also must be
reported to the Regional Adminis- (2) The adequacy determination will
trator. become effective 60 days following pub-
(d) States must notify the appro- lication, if no adverse comments are
priate Regional Administrator of all received. If EPA receives comments op-
permit program modifications required posing its adequacy determination, the
in paragraphs (b) and (c) of this section Regional Administrator will review
within a time-frame agreed to by the these comments and publish another
State Director and the Regional Ad- FEDERAL REGISTER document respond-
ministrator. ing to public comments and either af-
(e) The Regional Administrator will firming or revising the initial decision.
review the modifications and deter-
§ 239.13 Criteria and procedures for
mine whether the State Director must withdrawal of determination of
submit a revised application. If a re- adequacy.
vised application is necessary, the Re-
gional Administrator will inform the (a) The Regional Administrator may
State Director in writing that a revised initiate withdrawal of a determination
application is necessary, specifying the of adequacy when the Regional Admin-
required revisions and establishing a istrator has reason to believe that:
schedule for submission of the revised (1) A state no longer has an adequate
application. permit program; or
(f) For all revised municipal solid (2) The state no longer has adequate
waste landfill permit program applica- authority to administer and enforce an
tions, and for all amended applications approved program in accordance with
in the case of partially approved pro- this part.
grams, the state must submit to the (b) Upon receipt of substantive infor-
appropriate Regional Administrator an mation sufficient to indicate that a

amended application that addresses state program may no longer be ade-
those portions of its program that have quate, the Regional Administrator
350
shall inform the state in writing of the adequacy by publishing the tentative
information. withdrawal of determination of ade-
(c) If, within 45 days of the state’s re- quacy of the state program in the FED-
ceipt of the information in paragraph ERAL REGISTER. Notice of the tentative
(b) of this section, the state dem- determination must:
onstrates to the satisfaction of the Re- (1) Afford the public at least 60 days
gional Administrator that the state after the notice to comment on the Re-
program is adequate (i.e., in compli- gional Administrator’s tentative deter-
ance with this part), the Regional Ad- mination;
ministrator shall take no further ac-
(2) Include a specific statement of the
tion toward withdrawal of the deter-
Regional Administrator’s areas of con-
mination of adequacy and shall so no-
tify the state and any person(s) who cern and reason to believe the state
submitted information regarding the program may no longer be adequate;
adequacy of the state’s program and and
authorities. (3) Indicate that a public hearing will
(d) If the State Director does not be held by EPA if sufficient public in-
demonstrate the state’s compliance terest is expressed during the comment
with this part to the satisfaction of the period or when the Regional Adminis-
Regional Administrator, the Regional trator determines that such a hearing
Administrator shall list the defi- might clarify issues involved in the
ciencies in the program and negotiate tentative withdrawal determination.
with the state a reasonable time for (h) If the Regional Administrator
the state to complete such action to finds, after the public hearing (if any)
correct deficiencies as the Regional and review and consideration of all
Administrator determines necessary. If public comments, that the state is in
these negotiations reach an impasse, compliance with this part, the with-
the Regional Administrator shall es- drawal proceedings shall be terminated
tablish a time period within which the and the decision shall be published in
state must correct any program defi- the FEDERAL REGISTER. The document
ciencies and inform the State Director
must include a statement of the rea-
of the time period in writing.
sons for this determination and a re-
(e) Within the schedule negotiated by
sponse to significant comments re-
the Regional Administrator and the
State Director, or set by the Regional ceived. If the Regional Administrator
Administrator, the state shall take ap- finds that the state program is not in
propriate action to correct deficiencies compliance with this Part by the date
and shall file with the Regional Admin- prescribed by the Regional Adminis-
istrator a statement certified by the trator or any extension approved by
State Director describing the steps the Regional Administrator, a final no-
taken to correct the deficiencies. tice of inadequacy shall be published in
(f) If the state takes appropriate ac- the FEDERAL REGISTER declaring the
tion to correct deficiencies, the Re- state permit program inadequate to en-
gional Administrator shall take no fur- sure compliance with the relevant Sub-
ther action toward withdrawal of de- title D federal revised criteria. The
termination of adequacy and shall so document will include a statement of
notify the state and any person(s) who the reasons for this determination and
submitted information regarding the response to significant comments re-
adequacy of the state’s permit pro- ceived.
gram. If the state has not dem- (i) States may seek a determination
onstrated its compliance with this part of adequacy at any time after a deter-
to the satisfaction of the Regional Ad- mination of inadequacy.
ministrator, the Regional Adminis-
trator shall inform the State Director [63 FR 57040, Oct. 23, 1999, as amended at 64
and may initiate withdrawal of all or FR 4315, Jan. 28, 1999]
part of the determination of state pro-
gram adequacy.
(g) The Regional Administrator shall
initiate withdrawal of determination of
351
PART 240—GUIDELINES FOR THE 240.210–3 Recommended procedures: Oper-

ations.
THERMAL PROCESSING OF SOLID 240.211 Records.
WASTES 240.211–1 Requirement.
240.211–2 Recommended procedures: Design.
Subpart A—General Provisions 240.211–3 Recommended procedures: Oper-
ations.
Sec.
APPENDIX TO PART 240—RECOMMENDED BIBLI-
240.100 Scope.
OGRAPHY
240.101 Definitions.
AUTHORITY: Sec. 209(a), Solid Waste Dis-
Subpart B—Requirements and posal Act of 1965 (Pub. L. 89–272); as amended
Recommended Procedures by the Resource Recovery Act of 1970 (Pub.
L. 91–512).
240.200 Solid wastes accepted.
240.200–1 Requirement. SOURCE: 39 FR 29329, Aug. 14, 1974, unless
240.200–2 Recommended procedures: Design. otherwise noted.
240.200–3 Recommended procedures: Oper-
ations. Subpart A—General Provisions
240.201 Solid wastes excluded.
240.201–1 Requirement. § 240.100 Scope.
240.201–3 Recommended procedures: Oper- (a) The prescribed guidelines are ap-
ations. plicable to thermal processing facili-
240.202 Site selection. ties designed to process or which are
240.202–1 Requirement. processing 50 tons or more per day of
240.202–2 Recommended procedures: Design. municipal-type solid wastes. The appli-
ations.
cation of this capacity criterion will be
240.203 General design. interpreted to mean any facility de-
240.203–1 Requirement. signed to process or actually proc-
240.203–2 Recommended procedures: Design. essing 50/24 tons or more per hour.
240.203–3 Recommended procedures: Oper- However, the guidelines do not apply to
ations. hazardous, agricultural, and mining
240.204 Water quality. wastes because of the lack of sufficient
240.204–1 Requirement.
information upon which to base rec-
240.204–3 Recommended procedures: Oper- ommended procedures.
ations. (b) The requirement sections con-
240.205 Air quality. tained herein delineate minimum lev-
240.205–1 Requirement. els of performance required of any solid
240.205–2 Recommended procedures: Design. waste thermal processing operation.
240.205–3 Recommended procedures: Oper- The recommended procedures sections
ations.
are presented to suggest preferred
240.206 Vectors.
240.206–1 Requirement. methods by which the objectives of the
240.206–2 Recommended procedures: Design. requirements can be realized. The rec-
240.206–3 Recommended procedures: Oper- ommended procedures are based on the
ations. practice of incineration at large facili-
240.207 Aesthetics. ties (50 tons per day or more) proc-
240.207–1 Requirement. essing municipal solid waste. If tech-
240.207–2 Recommended procedures: Design. niques other than the recommended
procedures are used or wastes other
ations.
240.208 Residue. than municipal wastes are processed, it
240.208–1 Requirement. is the obligation of the facility’s owner
240.208–2 Recommended procedures: Design. and operator to demonstrate to the re-
240.208–3 Recommended procedures: Oper- sponsible agency in advance by means
ations. of engineering calculations, pilot plant
240.209 Safety. data, etc., that the techniques em-
240.209–1 Requirement. ployed will satisfy the requirements.
(c) Thermal processing residue must
ations. be disposed of in an environmentally
240.210 General operations. acceptable manner. Where a land dis-

240.210–1 Requirement. posal facility is employed, it must be
240.210–2 Recommended procedures: Design. in accordance with the Environmental
352
Protection Agency’s Guidelines for the which passes through the solid wastes
Land Disposal of Solid Wastes for both fuel bed.
residues from the thermal processing (b) Bottom ash means the solid mate-
operation and those non-hazardous rial that remains on a hearth or falls
wastes which cannot be thermally off the grate after thermal processing
processed for reasons of health, safety, is complete.
or technological limitation. (c) Combustibles means materials that
(d) Pursuant to section 211 of the can be ignited at a specific tempera-
Solid Waste Disposal Act, as amended, ture in the presence of air to release
these guidelines are mandatory for heat energy.
Federal agencies. In addition, they are (d) Design capacity means the weight
recommended to State, interstate, re- of solid waste of a specified gross calo-
gional, and local government agencies rific value that a thermal processing
for use in their activities. facility is designed to process in 24
(e) The guidelines are intended to hours of continuous operation; usually
apply equally to all solid waste gen- expressed in tons per day.
erated by Federal agencies, regardless (e) Discharge means water-borne pol-
of whether processed or disposed of on lutants released to a receiving stream
or off Federal property; and solid waste directly or indirectly or to a sewerage
generated by non-Federal entities, but system.
processed or disposed of on Federal (f) Emission means gas-borne pollut-
property. However, in the case of many ants released to the atmosphere.
Federal facilities such as Post Offices, (g) Facility means all thermal proc-
military recruiting stations, and other essing equipment, buildings, and
offices, local community solid waste grounds at a specific site.
processing and disposal facilities are (h) Fly ash means suspended par-
utilized, and processing and disposal is ticles, charred paper, dust, soot, and
not within the management control of other partially oxidized matter carried
the Federal agency. Thus, implementa- in the products of combustion.
tion of the guidelines can be expected (i) Free moisture means liquid that
only in those situations where the Fed- will drain freely by gravity from solid
eral agency is able to exercise direct materials.
management control over the proc- (j) Furnace means the chambers of
essing and disposal operations. How- the combustion train where drying, ig-
ever, every effort must be made by the nition, and combustion of waste mate-
responsible agency, where offsite facili- rial and evolved gases occur.
ties are utilized, to attain processing (k) Grate siftings means the materials
and disposal facilities that are in com- that fall from the solid waste fuel bed
pliance with the guidelines. Where non- through the grate openings.
Federal generated solid waste is proc- (l) Gross calorific value means heat
essed and disposed of on Federal land liberated when waste is burned com-
and/or facilities, those facilities and/or pletely and the products of combustion
sites must be in compliance with these are cooled to the initial temperature of
guidelines. Determination of compli- the waste. Usually expressed in British
ance to meet the requirements of the thermal units per pound.
guidelines rests with the responsible (m) Hazardous waste means any waste
agency, and they have the authority to or combination of wastes which pose a
determine how such compliance may substantial present or potential hazard
occur. to human health or living organisms
because such wastes are nondegradable
§ 240.101 Definitions. or persistent in nature or because they
As used in these guidelines: can be biologically magnified, or be-
(a) Air: Overfire air means air, under cause they can be lethal, or because
control as to quantity and direction, they may otherwise cause or tend to
introduced above or beyond a fuel bed cause detrimental cumulative effects.
by induced or forced draft. ‘‘Underfire (n) Incineration means the controlled
air’’ means any forced or induced air, process which combustible solid, liq-
under control as to quantity and direc- uid, or gaseous wastes are burned and
tion, that is supplied from beneath and changed into noncombustible gases.
353
§ 240.200 40 CFR Ch. I (7–1–21 Edition)
(o) Incinerator means a facility con- (x) Sludge means the accumulated
sisting of one or more furnaces in semiliquid suspension of settled solids
which wastes are burned. deposited from wastewaters or other
(p) Infectious waste means: (1) Equip- fluids in tanks or basins. It does not in-
ment, instruments, utensils, and clude solids or dissolved material in
fomites of a disposable nature from the domestic sewage or other significant
rooms of patients who are suspected to pollutants in water resources, such as
have or have been diagnosed as having silt, dissolved or suspended solids in in-
a communicable disease and must, dustrial wastewater effluents, dissolved
therefore, be isolated as required by materials in irrigation return flows or
public health agencies; (2) laboratory other common water pollutants.
wastes such as pathological specimens (y) Solid wastes means garbage,
(e.g., all tissues, specimens of blood refuse, sludges, and other discarded
elements, excreta, and secretions ob- solid materials resulting from indus-
tained from patients or laboratory ani- trial and commercial operations and
mals) and disposable fomites (any sub- from community activities. It does not
stance that may harbor or transmit include solids or dissolved material in
pathogenic organisms) attendant domestic sewage or other significant
thereto; (3) surgical operating room pollutants in water resources, such as
pathologic specimens and disposable silt, dissolved or suspended solids in in-
fomites attendant thereto and similar dustrial wastewater effluents, dissolved
disposable materials from outpatient materials in irrigation return flows or
areas and emergency rooms. other common water pollutants.
(q) Municipal solid wastes means nor- (z) Special wastes means nonhazardous
mally, residential and commercial solid wastes requiring handling other
solid wastes generated within a com- than that normally used for municipal
munity. solid waste.
(r) Open burning means burning of (aa) Thermal processing means proc-
solid wastes in the open, such as in an essing of waste material by means of
open dump. heat.
(s) Open dump means a land disposal (bb) Vector means a carrier, usually
site at which solid wastes are disposed an arthropod, that is capable of trans-
of in a manner that does not protect mitting a pathogen from one organism
the environment, are susceptible to to another.
open burning, and are exposed to the
elements, vectors, and scavengers. Subpart B—Requirements and
(t) Plans means reports and drawings, Recommended Procedures
including a narrative operating de-
scription, prepared to describe the fa- § 240.200 Solid wastes accepted.
cility and its proposed operation.
(u) Residue means all the solids that § 240.200–1 Requirement.
remain after completion of thermal In consultation with the responsible
processing, including bottom ash, fly agencies, the owner/operator shall de-
ash, and grate siftings. termine what wastes shall be accepted
(v) Responsible agency means the or- and shall identify any special handling
ganizational element that has the legal required. In general, only wastes for
duty to ensure that owners, operators, which the facility has been specifically
or users of facilities comply with these designed shall be accepted; however,
guidelines. other wastes may be accepted if it has
(w) Sanitary landfill means a land dis- been demonstrated to the responsible
posal site employing an engineered agency that they can be satisfactorily
method of disposing of solid wastes on processed within the design capability
land in a manner that minimizes envi- of the facility or after appropriate fa-
ronmental hazards by spreading the cility modifications.
solid wastes in thin layers, compacting
the solid wastes to the smallest prac- § 240.200–2 Recommended procedures:
tical volume, and applying and com- Design.

pacting cover material at the end of (a) In addition to the residential and
each operating day. commercial wastes normally processed
354
at municipal-scale incinerators, cer- large carcasses, automobile bodies,

tain special wastes might be considered dewatered sludges from water treat-
for processing. These include: Certain ment plants, and industrial process
bulky wastes (e.g., combustible demoli- wastes.
tion and construction debris, tree
stumps, large timbers, furniture, and § 240.201–3 Recommended procedures:
major appliances), digested and Operations.
dewatered sludges from waste water (a) Regular users of the facility
treatment facilities, raw sewage should be given a list of excluded mate-
sludges, and septic tank pumpings. rials. The list should also be displayed
(b) If the facility is designed to han- prominently at the facility entrance. If
dle special wastes, special areas should a regular user persists in making unac-
be provided where appropriate for stor- ceptable deliveries, he should be barred
age while they await processing. from the installation and reported to
the responsible agency.
§ 240.200–3 Recommended procedures: (b) The operating plan should specify
Operations. the procedures and precautions to be
(a) Storage areas for special wastes taken if unacceptable wastes are deliv-
should be clearly marked. ered to the facility or are improperly
(b) Facility personnel should be thor- left there. Operating personnel should
oughly trained in any unusual handling be thoroughly trained in such pro-
required by acceptance of Special cedures.
Wastes.
§ 240.202 Site selection.
§ 240.201 Solid wastes excluded.
§ 240.202–1 Requirement.
§ 240.201–1 Requirement. Site selection and utilization shall be
Using information provided to them consistent with public health and wel-
by the waste generator/owner, the re- fare, and air and water quality stand-
sponsible agency and the facility ards and adaptable to appropriate land-
owner/operator shall jointly determine use plans.
specific wastes to be excluded and shall
identify them in the plans. The gener- § 240.202–2 Recommended procedures:
ator/owner of excluded wastes shall Design.
consult with the responsible agency in (a) Whenever possible, thermal proc-
determining an alternative method of essing facilities should be located in
disposal for excluded wastes. The cri- areas zoned for industrial use and hav-
teria used in considering whether a ing adequate utilities to serve the fa-
waste is unacceptable shall include the cility.
facility’s capabilities, alternative (b) The site should be accessible by
methods available, the chemical and permanent roads leading from the pub-
biological characteristics of the waste, lic road system.
environmental and health effects, and (c) Environmental factors, climato-
the safety of personnel. Disposal of pes- logical conditions, and socioeconomic
ticides and pesticide containers shall factors should be given full consider-
be consistent with the Federal Envi- ation as selection criteria.
ronmental Pesticides Control Act of
1972 (Pub. L. 92–516) and recommended § 240.202–3 Recommended procedures:
procedures promulgated thereunder. Operations.
Not applicable.
§ 240.201–2 Recommended procedures:
Design. § 240.203 General design.
(a) Provision for storing, handling,
and removing hazardous or excluded § 240.203–1 Requirement.
wastes inadvertently left at the facil- A plan for the design of new facilities
ity should be considered in design. or modifications to existing facilities
(b) Examples of wastes which should shall be prepared or approved by a pro-

be considered for exclusion from the fa- fessional engineer. A list of major con-
cility include: Hazardous wastes, very siderations and the rationale for the
355
§ 240.203–2 40 CFR Ch. I (7–1–21 Edition)
decision on each consideration shall be density, the concentration of carbon

approved by the responsible agency monoxide, or the concentration of hy-
prior to authorization for construction. drocarbons in the stack gases should be
This information shall remain avail- monitored. Measurement of the pH
able for review. should be considered for effluent
waters. Continuously recording instru-
§ 240.203–2 Recommended procedures: mentation should be used as much as
Design.
possible.
(a) The types, amounts (by weight (i) Audible signals should be provided
and volume), and characteristics of all to alert operating personnel of critical
solid wastes expected to be processed operating unit malfunctions.
should be determined by survey and
(j) Sampling capability should be de-
analysis. The gross calorific value of
signed into the facility so that each
the solid wastes to be processed should
process stream can be sampled, and the
be determined to serve as a basis for
utilities required to do so should be
design.
(b) Resource recovery in the form of close at hand. The sampling sites
heat utilization or direct recovery of should be so designed that personnel
materials should be considered in the can sample safely without interfering
design. with normal plant operations.
(c) The facility should be designed to (k) A laboratory should be included
be compatible with the surrounding in the design, or provision should be
area, easy to maintain, and consistent made for laboratory analyses to be per-
with the land use of the area. formed by an outside source acceptable
(d) Employee convenience facilities to the responsible agency.
and plant maintenance facilities
should be provided. Adequate lighting § 240.203–3 Recommended procedures:
should be provided throughout the fa- Operations.
cility. Not applicable.
(e) The corrosive and erosive action
of once-through and recirculated proc- § 240.204 Water quality.
ess waters should be controlled either
by treating them or by using materials § 240.204–1 Requirement.
capable of withstanding the adverse ef- All waters discharged from the facil-
fects of the waters. ity shall be sufficiently treated to
(f) Facility design capacity should meet the most stringent of applicable
consider such items as waste quantity water quality standards, established in
and characteristics, variations in waste accordance with or effective under the
generation, equipment downtime, and provisions of the Federal Water Pollu-
availability of alternate storage, proc- tion Control Act, as amended.
essing, or disposal capability.
(g) Facility systems and subsystems § 240.204–2 Recommended procedures:
should be designed to assure standby Design.
capability in the event of breakdown.
(a) Effluent waters should not be dis-
Provision for standby water and power
charged indiscriminately. Consider-
should also be considered.
ation should be given to onsite treat-
(h) Instrumentation should be pro-
vided to determine such factors as: The ment of process and waste waters be-
weight of incoming and outgoing mate- fore discharge.
rials (the same scale system may be (b) Recirculation of process waters
used for both); total combustion air- should be considered.
flow rates; underfire and overfire air-
flows and the quantitative distribution § 240.204–3 Recommended procedures:
Operations.
of each; selected temperatures and
pressures in the furnace, along gas pas- (a) When monitoring instrumenta-
sages, in the particulate collection de- tion indicates excessive discharge con-
vice, and in the stack; electrical power tamination, appropriate adjustments

and water consumption of critical should be made to lower the concentra-
units; and rate of operation. The smoke tions to acceptable levels.
356
(b) In the event of an accidental spill, (b) Solid waste and residue should
the local regulatory agency should be not be allowed to accumulate at the fa-
notified immediately. cility for more than one week.
§ 240.205 Air quality. § 240.207 Aesthetics.
§ 240.205–1 Requirement. § 240.207–1 Requirement.

Emissions shall not exceed applicable The incinerator facility shall be de-
existing emission standards established signed and operated at all times in an
by the U.S. Environmental Protection aesthetically acceptable manner.
Agency (as published in parts 52, 60, 61 § 240.207–2 Recommended procedures:
and 76 of this chapter) under the au- Design.
thority of the Clean Air Act, as amend-
ed, or State or local emission standards The facility should be designed so
that it is physically attractive. The
effective under that Act, if the latter
tipping, residue discharge, and waste
are more stringent.
salvage areas should be screened from
§ 240.205–2 Recommended procedures: public view, and the grounds should be
Design. landscaped.
(a) These requirements should be met § 240.207–3 Recommended procedures:
by using appropriate air pollution con- Operations.
trol technology. (a) A routine housekeeping and litter
(b) All emissions, including dust from removal schedule should be established
vents, should be controlled. and implemented so that the facility
regularly presents a neat and clean ap-
§ 240.205–3 Recommended procedures: pearance.
Operations. (b) Solid wastes that cannot be proc-
When monitoring instrumentation essed by the facility should be removed
indicates excessive emissions, appro- from the facility at least weekly. Open
priate adjustments should be made to burning or open dumping of this mate-
lower the emission to acceptable lev- rial should be prohibited.
els.
§ 240.208 Residue.
§ 240.206 Vectors.
§ 240.208–1 Requirement.
§ 240.206–1 Requirement. Residue and other solid waste prod-
Conditions shall be maintained that ucts resulting from a thermal process
are unfavorable for the harboring, feed- shall be disposed of in an environ-
ing, and breeding of vectors. mentally acceptable manner. Where
land disposal is employed, practices
§ 240.206–2 Recommended procedures: must be in conformance with the U.S.
Design. Environmental Protection Agency’s
Guidelines for the Land Disposal of
Thermal processing facilities should Solid Wastes. Unwanted residue mate-
be designed for ease of cleaning. Areas rials remaining after the recovery op-
favorable for breeding of vectors should eration shall be disposed of in a man-
be avoided. ner which protects the environment.
Where land disposal is employed, prac-
Operations. tices must be in conformance with the
U.S. Environmental Protection Agen-
(a) A housekeeping schedule should cy’s Guidelines for the Land Disposal
be established and maintained. As a of Solid Wastes.
minimum the schedule should provide
for cleaning the tipping and residue § 240.208–2 Recommended procedures:
areas as spillages occur, emptying the Design.
solid waste storage area at least week- Thermal processing facilities should
ly, and routinely cleaning the remain- be so designed as to allow for removal
der of the facility. from the site of residue or other solids
357
§ 240.208–3 40 CFR Ch. I (7–1–21 Edition)
in a manner that protects the environ- tory for Occupational Respiratory Dis-
ment. ease, National Institute for Occupa-
tional Safety and Health, Morgantown,
§ 240.208–3 Recommended procedures: W. Va.
Operations. (c) Training in first aid practices and
(a) The furnace operator should vis- emergency procedures should be given
ually observe the quality of the bottom all personnel.
ash at least twice per shift and record (d) Personal safety devices such as
in the operating log the estimated per- hard hats, gloves, safety glasses, and
centage of unburned combustibles. footwear should be provided for facility
(b) If residue or fly ash is collected in employees.
a wet condition, it should be drained of (e) If a regular user or employee per-
free moisture. Transportation of res- sistently poses a safety hazard he
idue and fly ash should be by means should be barred from the facility and
that prevent the loads from shifting, reported to the responsible agency.
falling, leaking, or blowing from the
container. § 240.210 General operations.
§ 240.209 Safety. § 240.210–1 Requirement.
§ 240.209–1 Requirement. The thermal processing facility shall
be operated and maintained in a man-
Incinerators shall be designed, oper- ner that assures it will meet the design
ated, and maintained in a manner to requirements. An operations manual
protect the health and safety of per- describing the various tasks to be per-
sonnel associated with the operation of formed, operating procedures, and safe-
the facility. Pertinent provisions of the ty precautions for various areas of the
Occupational Safety and Health Act of facility shall be developed and shall be
1970 (Pub. L. 91–596) and regulations readily available for reference by plant
promulgated thereunder shall apply. personnel.
Design. § 240.210–2 Recommended procedures:
Design.
(a) Attention should be given to the
Not applicable.
safety of operators and vehicles
through the provision of safety devices. § 240.210–3 Recommended procedures:
(b) Fire control equipment should be Operations.
provided.
(c) Methods and/or equipment for re- (a) The facility supervisor should be
moval of an injured person from the experienced in the operation of the
storage pit should be available. type of facility designed or, in the case
of an innovated design, be adequately
§ 240.209–3 Recommended procedures: trained by responsible personnel in the
Operations. operation of the facility.
(a) Detailed procedures should be de- (b) Alternate and standby disposal
veloped for operation during such and operating procedures should be es-
emergency situations as power failure, tablished for implementation during
air or water supply failure, equipment emergencies, air pollution episodes,
breakdowns, and fire. These procedures and shutdown periods.
should be posted in prominent loca- (c) Upon completion of facility con-
tions, implemented by the staff as re- struction, provision should be made for
quired, and upgraded and revised peri- instruction of the staff in proper oper-
odically. ation and maintenance procedures.
(b) Approved respirators or self-con- (d) A routine maintenance schedule
tained breathing apparatus should be should be established and followed.
available at convenient locations. (e) As-built engineering drawings of
Their use should be reviewed periodi- the facility should be provided at the
cally with facility personnel. Informa- conclusion of construction of the facil-

tion on this type equipment can be ob- ity. These should be updated to show
tained from the Appalachian Labora- modifications by the owner as changes
358
are made and should be readily avail- (4) Overfire and underfire air volumes
able. A schematic showing the rela- and pressure and distribution recorded
tionships of the various subsystems at least every 60 minutes and as
should also be available. changes are made.
(f) Key operational procedures should (5) Weights of bottom ash, grate
be prominently posted. siftings, and fly ash, individually or
(g) Equipment manuals, catalogs, combined, recorded at intervals appro-
spare parts lists, and spare parts priate to normal facility operation.
should be readily available at the facil- (6) Estimated percentages of un-
ity. burned material in the bottom ash.
(h) Training opportunities for facility (7) Water used on each shift for bot-
operating personnel should be provided. tom ash quenching and scrubber oper-
ation. Representative samples of proc-
§ 240.211 Records. ess waters should be collected and ana-
lyzed as recommended by the respon-
§ 240.211–1 Requirement. sible agency.
The owner/operator of the thermal (8) Power produced and utilized each
processing facility shall provide shift. If steam is produced, quality,
records and monitoring data as reproduction totals and consumption
quired by the responsible agency. rates should be recorded.
(9) Auxiliary fuel used each shift.
§ 240.211–2 Recommended procedures: (10) Gross calorific value of daily rep-
Design. resentative samples of bottom ash,
Continuously recording instrumenta- grate siftings, and fly ash. (Sampling
tion should be used as much as pos- time should be varied so that all shifts
sible. are monitored on a weekly basis.)
(11) Emission measurements and lab-
§ 240.211–3 Recommended procedures: oratory analyses required by the re-
Operations. sponsible agency.
(a) Extensive monitoring and record- (12) Complete records of monitoring
keeping should be practiced during the instruments.
first 12 to 18 months of operation of a (13) Problems encountered and meth-
new or renovated facility, during periods of solution.
ods of high air pollution, and during (d) An annual report should be pre-
periods of upset conditions at the facil- pared which includes at least the fol-
ity. lowing information:
(b) During other periods of more nor- (1) Minimum, average, and maximum
mal operation of the facility, less ex- daily volume and weight of waste re-
tensive monitoring and record keeping ceived and processed, summarized on a
may be practiced if approved by the re- monthly basis.
sponsible agency. (2) A summary of the laboratory
(c) Operating records should be kept analyses including at least monthly
in a daily log and should include as a averages.
minimum: (3) Number and qualifications of per-
(1) The total weight and volume sonnel in each job category; total
(truck capacities may be used for vol- manhours per week; number of State
ume determination) of solid waste recertified or licensed personnel; staffing
ceived during each shift, including the deficiencies; and serious injuries, their
number of loads received, the owner- cause and preventive measures insti-
ship or specific identity of delivery ve- tuted.
hicles, the source and nature of the (4) An identification and brief discus-
solid wastes accepted. sion of major operational problems and
(2) Furnace and combustion chamber solutions.
temperatures recorded at least every 60 (5) Adequacy of operation and per-
minutes and as changes are made, in- formance with regard to environmental
cluding explanations for prolonged, ab- requirements, the general level of
normally high and low temperatures. housekeeping and maintenance, testing

(3) Rate of operation, such as grate and reporting proficiency, and rec-
speed. ommendations for corrective actions.
359
Pt. 240, App. 40 CFR Ch. I (7–1–21 Edition)
(6) A copy of all significant cor- 241.2 Definitions.

respondence, reports, inspection re-
ports, and any other communications Subpart B—Identification of Non-Haz-
from enforcement agencies. ardous Secondary Materials That Are
Solid Wastes When Used as Fuels or In-
(e) Methodology for evaluating the
gredients in Combustion Units
facility’s performance should be devel-
oped. Evaluation procedures rec- 241.3 Standards and procedures for identi-
ommended by the U.S. Environmental fication of non-hazardous secondary ma-
Protection Agency should be used terials that are solid wastes when used as
fuels or ingredients in combustion units.
whenever possible (see bibliography). 241.4 Non-Waste Determinations for Spe-
cific Non-Hazardous Secondary Materials
APPENDIX TO PART 240—RECOMMENDED When Used as a Fuel.
BIBLIOGRAPHY
AUTHORITY: 42 U.S.C. 6903, 6912, 7429.
1. The Solid Waste Disposal Act as amend- SOURCE: 76 FR 15549, Mar. 21, 2011, unless
ed; Title II of Pub. L. 89–272, 89th Cong., S. otherwise noted.
306, Oct. 20, 1965; Pub. L. 91–512, 91st Cong.,
H.R. 11833, Oct. 26, 1970. Washington, U.S.
Government Printing Office, 1971. 14 p. Re- Subpart A—General
printed 1972.
2. Seven incinerators; evaluation, discus-
§ 241.1 Purpose.
sions, and authors’ closure. [Washington, This part identifies the requirements
U.S. Environmental Protection Agency, 1971. and procedures for the identification of
40 p.] (Includes discussions and authors’ clo- solid wastes used as fuels or ingredi-
sure for ‘‘An evaluation of seven inciner- ents in combustion units under section
ators’’ by W. C. Achinger and L. E. Daniels.) 1004 of the Resource Conservation and
3. DeMarco, J., D. J. Keller, J. Leckman, Recovery Act and section 129 of the
and J. L. Newton. Municipal-scale inciner- Clean Air Act.
ator design and operation. Public Health
Service Publication No. 2012. Washington, § 241.2 Definitions.
U.S. Government Printing Office, 1973. 98 p.
4. Occupational Safety and Health Act of For the purposes of this subpart:
1970; Pub. L. 91–596, 91st Cong., S. 2193, Dec. Clean cellulosic biomass means those
29, 1970. Washington, U.S. Government Print- residuals that are akin to traditional
ing Office, 1972. cellulosic biomass, including, but not
5. Control techniques for particulate air limited to: Agricultural and forest-de-
pollutants. Publication AP–51. U.S. Depart- rived biomass (e.g., green wood, forest
ment of Health, Education, and Welfare, Na- thinnings, clean and unadulterated
tional Air Pollution Control Administration, bark, sawdust, trim, tree harvesting re-
1969. siduals from logging and sawmill mate-
6. Zausner, E. R. An accounting system for rials, hogged fuel, wood pellets, un-
incinerator operations. Public Health Serv-
treated wood pallets); urban wood (e.g.,
ice Publication No. 2032. Washington, U.S.
Government Printing Office, 1970. 17 p.
tree trimmings, stumps, and related
7. Achinger, W. C., and J. J. Giar, Testing
forest-derived biomass from urban set-
manual for solid waste incinerators. [Cin- tings); corn stover and other biomass
cinnati], U.S. Environmental Protection crops used specifically for the produc-
Agency, 1973. [372 p., loose-leaf.] [Open-file tion of cellulosic biofuels (e.g., energy
report, restricted distribution.] cane, other fast growing grasses, by-
8. Nader, J. S., W. Carter, and F. Jaye. Per- products of ethanol natural fermenta-
formance Specifications for Stationary tion processes); bagasse and other crop
Source Monitoring Systems. NTIS PB. 230 residues (e.g., peanut shells, vines, or-
934/AS (1974). chard trees, hulls, seeds, spent grains,
cotton byproducts, corn and peanut
PART 241—SOLID WASTES USED AS production residues, rice milling and
FUELS OR INGREDIENTS IN COM- grain elevator operation residues);
BUSTION UNITS wood collected from forest fire clear-
ance activities, trees and clean wood
Subpart A—General found in disaster debris, clean biomass
from land clearing operations, and

Sec. clean construction and demolition
241.1 Purpose. wood. These fuels are not secondary
360
materials or solid wastes unless dis- the environment considering the na-
carded. Clean biomass is biomass that ture and toxicity of the non-hazardous
does not contain contaminants at con- secondary material.
centrations not normally associated Control means the power to direct the
with virgin biomass materials. policies of the facility, whether by the
Construction and demolition (C&D) ownership of stock, voting rights, or
wood means wood that is generated otherwise, except that contractors who
from the processing of debris from con- operate facilities on behalf of a dif-
struction and demolition activities for ferent person as defined in this section
the purposes of recovering wood. C&D shall not be deemed to ‘‘control’’ such
wood from construction activities re- facilities.
sults from wood generated during any Copper naphthenate treated railroad
installation activity or from pur- ties means railroad ties treated with
chasing more wood than a project ulti- copper naphthenate made from naph-
mately requires. C&D wood from demo- thenic acid and copper salt.
lition activities results from disman- Copper naphthenate-borate treated rail-
tling buildings and other structures, road ties means railroad ties treated
removing materials during renovation, with copper naphthenate and borate,
or from natural disasters. including borate made from disodium
Contaminants means all pollutants octaborate tetrahydrate.
listed in Clean Air Act sections 112(b) Creosote treated railroad ties means
or 129(a)(4), with the following three railway support ties treated with a
modifications: wood preservative containing creosols
(1) The definition includes the ele- and phenols and made from coal tar oil.
ments chlorine, fluorine, nitrogen, and Creosote-borate treated railroad ties
sulfur in cases where non-hazardous means railroad ties treated with a
secondary materials are burned as a wood preservative containing creosols
fuel and combustion will result in the and phenols and made from coal tar oil
formation of hydrogen chloride (HCl), and borate, including borate made from
hydrogen fluoride (HF), nitrogen oxides disodium octaborate tetrahydrate.
(NOX), or sulfur dioxide (SO2). Chlorine, Established tire collection program
fluorine, nitrogen, and sulfur are not means a comprehensive collection sys-
included in the definition in cases tem or contractual arrangement that
where non-hazardous secondary mate- ensures scrap tires are not discarded
rials are used as an ingredient and not and are handled as valuable commod-
as a fuel. ities through arrival at the combustion
(2) The definition does not include facility. This can include tires that
the following pollutants that are either were not abandoned and were received
unlikely to be found in non-hazardous from the general public at collection
secondary materials and products made program events.
from such materials or are adequately Generating facility means all contig-
measured by other parts of this defini- uous property owned, leased, or other-
tion: hydrogen chloride (HCl), chlorine wise controlled by the non-hazardous
gas (Cl2), hydrogen fluoride (HF), nitro- secondary material generator.
gen oxides (NOX), sulfur dioxide (SO2), Ingredient means a non-hazardous
fine mineral fibers, particulate matter, secondary material that is a compo-
coke oven emissions, opacity, diazo- nent in a compound, process or prod-
methane, white phosphorus, and tita- uct.
nium tetrachloride. Non-hazardous secondary material
(3) The definition does not include m- means a secondary material that, when
cresol, o-cresol, p-cresol, m-xylene, o- discarded, would not be identified as a
xylene, and p-xylene as individual con- hazardous waste under Part 261 of this
taminants distinct from the grouped chapter.
pollutants total cresols and total Paper recycling residuals means the
xylenes. secondary material generated from the
Contained means the non-hazardous recycling of paper, paperboard and cor-
secondary material is stored in a man- rugated containers composed primarily

ner that adequately prevents releases of wet strength and short wood fibers
or other hazards to human health and that cannot be used to make new paper
361
§ 241.3 40 CFR Ch. I (7–1–21 Edition)
and paperboard products. Paper recy- Traditional fuels means materials

cling residuals that contain more than that are produced as fuels and are un-
small amounts of non-fiber materials used products that have not been dis-
including polystyrene foam, poly- carded and therefore, are not solid
ethylene film, other plastics, waxes wastes, including: (1) Fuels that have
and adhesives, dyes and inks, clays, been historically managed as valuable
starches and other coating and filler fuel products rather than being man-
material are not paper recycling re- aged as waste materials, including fos-
siduals for purposes of this definition. sil fuels (e.g., coal, oil and natural gas),
Person is defined as an individual, their derivatives (e.g., petroleum coke,
trust, firm, joint stock company, Fed- bituminous coke, coal tar oil, refinery
eral agency, corporation (including gas, synthetic fuel, heavy recycle, as-
government corporation), partnership, phalts, blast furnace gas, recovered
association, State, municipality, com- gaseous butane, and coke oven gas) and
mission, political subdivision of a cellulosic biomass (virgin wood); and
state, or any interstate body. (2) alternative fuels developed from vir-
Power producer means a boiler unit gin materials that can now be used as
producing electricity for sale to the fuel products, including used oil which
grid. The term does not include units meets the specifications outlined in 40
meeting the definition of electricity CFR 279.11, currently mined coal refuse
generating unit under 40 CFR 63.10042. that previously had not been usable as
Processing means any operations that coal, and clean cellulosic biomass.
transform discarded non-hazardous sec- These fuels are not secondary mate-
ondary material into a non-waste fuel rials or solid wastes unless discarded.
or non-waste ingredient product. Proc- Within control of the generator means
essing includes, but is not limited to, that the non-hazardous secondary ma-
operations necessary to: Remove or de- terial is generated and burned in com-
stroy contaminants; significantly im- bustion units at the generating facil-
prove the fuel characteristics of the ity; or that such material is generated
material, e.g., sizing or drying the ma- and burned in combustion units at dif-
terial in combination with other oper- ferent facilities, provided the facility
ations; chemically improve the as-fired combusting the non-hazardous sec-
energy content; or improve the ingre- ondary material is controlled by the
dient characteristics. Minimal oper- generator; or both the generating facil-
ations that result only in modifying ity and the facility combusting the
the size of the material by shredding do non-hazardous secondary material are
not constitute processing for purposes under the control of the same person as
of this definition. defined in this section.
Resinated wood means wood products [76 FR 15549, Mar. 21, 2011, as amended at 78
(containing binders and adhesives) pro- FR 9211, Feb. 7, 2013; 81 FR 6742, Feb. 8, 2016;
duced by primary and secondary wood 83 FR 5340, Feb. 7, 2018]
products manufacturing. Resinated
wood includes residues from the manu- Subpart B—Identification of Non-
facture and use of resinated wood, in- Hazardous Secondary Mate-
cluding materials such as board trim, rials That Are Solid Wastes
sander dust, panel trim, and off-speci- When Used as Fuels or Ingre-
fication resinated wood products that dients in Combustion Units
do not meet a manufacturing quality
or standard. § 241.3 Standards and procedures for
Secondary material means any mate- identification of non-hazardous sec-
rial that is not the primary product of ondary materials that are solid
a manufacturing or commercial proc- wastes when used as fuels or ingre-
ess, and can include post-consumer ma- dients in combustion units.
terial, off-specification commercial (a) Except as provided in paragraph
chemical products or manufacturing (b) of this section or in § 241.4(a) of this
chemical intermediates, post-indus- subpart, non-hazardous secondary ma-
trial material, and scrap. terials that are combusted are solid
Solid waste means the term solid wastes, unless a petition is submitted
waste as defined in 40 CFR 258.2. to, and a determination granted by, the
362
EPA pursuant to paragraph (c) of this EPA Regions and the petitioner re-
section. The criteria to be addressed in quests that the Assistant Adminis-
the petition, as well as the process for trator process the non-waste deter-
making the non-waste determination, mination petition. If multiple combus-
are specified in paragraph (c) of this tion units are located in one EPA Re-
section. gion, the application must be sub-
(b) The following non-hazardous sec- mitted to the Regional Administrator
ondary materials are not solid wastes for that Region. The criteria and proc-
when combusted: ess for making such non-waste deter-
(1) Non-hazardous secondary mate- minations includes the following:
rials used as a fuel in a combustion (1) Submittal of an application to the
unit that remain within the control of Regional Administrator for the EPA
the generator and that meet the legit- Region where the facility or facilities
imacy criteria specified in paragraph are located or the Assistant Adminis-
(d)(1) of this section. trator for the Office of Land and Emer-
(2) The following non-hazardous sec- gency Management for a determination
ondary materials that have not been that the non-hazardous secondary ma-
discarded and meet the legitimacy cri- terial, even though it has been trans-
teria specified in paragraph (d)(1) of ferred to a third party, has not been
this section when used in a combustion discarded and is indistinguishable in
unit (by the generator or outside the all relevant aspects from a fuel prod-
control of the generator): uct. The determination will be based
(i) [Reserved] on whether the non-hazardous sec-
(ii) [Reserved] ondary material that has not been dis-
(3) Non-hazardous secondary mate- carded is a legitimate fuel as specified
rials used as an ingredient in a combus- in paragraph (d)(1) of this section and
tion unit that meet the legitimacy cri- on the following criteria:
teria specified in paragraph (d)(2) of (i) Whether market participants
this section. treat the non-hazardous secondary ma-
(4) Fuel or ingredient products that terial as a product rather than as a
are used in a combustion unit, and are solid waste;
produced from the processing of dis- (ii) Whether the chemical and phys-
carded non-hazardous secondary mate- ical identity of the non-hazardous sec-
rials and that meet the legitimacy cri- ondary material is comparable to com-
teria specified in paragraph (d)(1) of mercial fuels;
this section, with respect to fuels, and (iii) Whether the non-hazardous sec-
paragraph (d)(2) of this section, with ondary material will be used in a rea-
respect to ingredients. The legitimacy sonable time frame given the state of
criteria apply after the non-hazardous the market;
secondary material is processed to (iv) Whether the constituents in the
produce a fuel or ingredient product. non-hazardous secondary material are
Until the discarded non-hazardous sec- released to the air, water or land from
ondary material is processed to the point of generation to the point
produce a non-waste fuel or ingredient, just prior to combustion of the sec-
the discarded non-hazardous secondary ondary material at levels comparable
material is considered a solid waste to what would otherwise be released
and would be subject to all appropriate from traditional fuels; and
federal, state, and local requirements. (v) Other relevant factors.
(c) The Regional Administrator may (2) The Regional Administrator or
grant a non-waste determination that Assistant Administrator for the Office
a non-hazardous secondary material of Land and Emergency Management
that is used as a fuel, which is not will evaluate the application pursuant
managed within the control of the gen- to the following procedures:
erator, is not discarded and is not a (i) The applicant must submit an ap-
solid waste when combusted. This re- plication for the non-waste determina-
sponsibility may be retained by the As- tion addressing the legitimacy criteria
sistant Administrator for the Office of in paragraph (d)(1) of this section and
Land and Emergency Management if the relevant criteria in paragraphs
combustors are located in multiple (c)(1)(i) through (v) of this section. In
363
§ 241.3 40 CFR Ch. I (7–1–21 Edition)
addition, the applicant must also show (A) The storage of the non-hazardous
that the non-hazardous secondary ma- secondary material prior to use must
terial has not been discarded in the not exceed reasonable time frames;
first instance. (B) Where there is an analogous fuel,
(ii) The Regional Administrator or the non-hazardous secondary material
Assistant Administrator for the Office must be managed in a manner con-
of Land and Emergency Management sistent with the analogous fuel or oth-
will evaluate the application and issue erwise be adequately contained to pre-
a draft notice tentatively granting or vent releases to the environment;
denying the application. Notification (C) If there is no analogous fuel, the
of this tentative decision will be pub- non-hazardous secondary material
lished in a newspaper advertisement or must be adequately contained so as to
prevent releases to the environment;
radio broadcast in the locality where
(ii) The non-hazardous secondary ma-
the facility combusting the non-haz-
terial must have a meaningful heating
ardous secondary material is located,
value and be used as a fuel in a com-
and be made available on the EPA’s
bustion unit that recovers energy.
Web site. (iii) The non-hazardous secondary
(iii) The Regional Administrator or material must contain contaminants
the Assistant Administrator for the Of- or groups of contaminants at levels
fice of Land and Emergency Manage- comparable in concentration to or
ment will accept public comments on lower than those in traditional fuel(s)
the tentative decision for 30 days, and that the combustion unit is designed to
may also hold a public hearing upon re- burn. In determining which traditional
quest or at his/her discretion. The Re- fuel(s) a unit is designed to burn, per-
gional Administrator or the Assistant sons may choose a traditional fuel that
Administrator for the Office of Land can be or is burned in the particular
and Emergency Management will issue type of combustion unit, whether or
a final decision after receipt of com- not the unit is permitted to burn that
ments and after a hearing (if any). If a traditional fuel. In comparing contami-
determination is made that the non- nants between traditional fuel(s) and a
hazardous secondary material is a non- non-hazardous secondary material, per-
waste fuel, it will be retroactive and sons can use data for traditional fuel
apply on the date the petition was sub- contaminant levels compiled from na-
mitted. tional surveys, as well as contaminant
(iv) If a change occurs that affects level data from the specific traditional
how a non-hazardous secondary mate- fuel being replaced. To account for nat-
rial meets the relevant criteria con- ural variability in contaminant levels,
tained in this paragraph (c) after a for- persons can use the full range of tradi-
mal non-waste determination has been tional fuel contaminant levels, pro-
granted, the applicant must re-apply to vided such comparisons also consider
variability in non-hazardous secondary
the Regional Administrator or the As-
material contaminant levels. Such
sistant Administrator for the Office of
comparisons are to be based on a direct
Land and Emergency Management for
comparison of the contaminant levels
a formal determination that the non-
in both the non-hazardous secondary
hazardous secondary material con-
material and traditional fuel(s) prior
tinues to meet the relevant criteria to combustion.
and, thus, is not a solid waste. (2) Legitimacy criteria for non-haz-
(d) Legitimacy criteria for non-hazardous secondary materials used as an
ardous secondary materials. ingredient in combustion units include
(1) Legitimacy criteria for non-haz- the following:
ardous secondary materials used as a (i) The non-hazardous secondary ma-
fuel in combustion units include the terial must be managed as a valuable
following: commodity based on the following fac-
(i) The non-hazardous secondary ma- tors:
terial must be managed as a valuable (A) The storage of the non-hazardous

commodity based on the following fac- secondary material prior to use must
tors: not exceed reasonable time frames;
364
(B) Where there is an analogous in- the same manner as currently-gen-

gredient, the non-hazardous secondary erated coal refuse.
material must be managed in a manner (4) Dewatered pulp and paper sludges
consistent with the analogous ingre- that are not discarded and are gen-
dient or otherwise be adequately con- erated and burned on-site by pulp and
tained to prevent releases to the envi- paper mills that burn a significant por-
ronment; tion of such materials where such
(C) If there is no analogous ingre- dewatered residuals are managed in a
dient, the non-hazardous secondary manner that preserves the meaningful
material must be adequately contained heating value of the materials.
to prevent releases to the environment; (5) Construction and demolition
(ii) The non-hazardous secondary ma- (C&D) wood processed from C&D debris
terial must provide a useful contribu- according to best management prac-
tion to the production or manufac- tices. Combustors of C&D wood must
turing process. The non-hazardous sec- obtain a written certification from
ondary material provides a useful con- C&D processing facilities that the C&D
tribution if it contributes a valuable wood has been processed by trained op-
ingredient to the product or inter- erators in accordance with best man-
mediate or is an effective substitute agement practices. Best management
for a commercial product. practices for purposes of this categor-
(iii) The non-hazardous secondary ical listing must include sorting by
material must be used to produce a val- trained operators that excludes or re-
uable product or intermediate. The moves the following materials from the
product or intermediate is valuable if: final product fuel: non-wood materials
(A) The non-hazardous secondary ma- (e.g., polyvinyl chloride and other plas-
terial is sold to a third party, or tics, drywall, concrete, aggregates,
(B) The non-hazardous secondary ma- dirt, and asbestos), and wood treated
terial is used as an effective substitute with creosote, pentachlorophenol,
for a commercial product or as an in- chromated copper arsenate, or other
gredient or intermediate in an indus- copper, chromium, or arsenical pre-
trial process. servatives. In addition:
(i) Positive sorting. C&D processing fa-
(iv) The non-hazardous secondary
cilities that use positive sorting—
material must result in products that
where operators pick out desirable
contain contaminants at levels that
wood from co-mingled debris—or that
are comparable in concentration to or
receive and process positive sorted
lower than those found in traditional
C&D wood must either:
products that are manufactured with-
(A) Exclude all painted wood (to the
out the non-hazardous secondary mate-
extent that only de minimis quantities
rial.
inherent to processing limitations may
[76 FR 15549, Mar. 21, 2011, as amended at 78 remain) from the final product fuel,
FR 9212, Feb. 7, 2013; 80 FR 77578, Dec. 15, (B) Use X-ray Fluorescence to ensure
2015; 81 FR 6742, Feb. 8, 2016] that painted wood included in the final
product fuel does not contain lead-
§ 241.4 Non-Waste Determinations for based paint, or
Specific Non-Hazardous Secondary
Materials When Used as a Fuel. (C) Require documentation that a
building has been tested for and does
(a) The following non-hazardous sec- not include lead-based paint before ac-
ondary materials are not solid wastes cepting demolition debris from that
when used as a fuel in a combustion building.
unit: (ii) Negative sorting. C&D processing
(1) Scrap tires that are not discarded facilities that use negative sorting—
and are managed under the oversight of where operators remove contaminated
established tire collection programs, or otherwise undesirable materials
including tires removed from vehicles from co-mingled debris—must remove
and off-specification tires. fines (i.e., small-sized particles that
(2) Resinated wood. may contain relatively high concentra-

(3) Coal refuse that has been recov- tions of lead and other contaminants)
ered from legacy piles and processed in and either:
365
§ 241.4 40 CFR Ch. I (7–1–21 Edition)
(A) Remove all painted wood (to the ensure that the CTRTs are not being
extent that only de minimis quantities discarded:
inherent to processing limitations may (A) CTRTs must be burned in exist-
remain), ing (i.e. commenced construction prior
(B) Use X-ray Fluorescence to detect to April 14, 2014) stoker, bubbling bed,
and remove lead-painted wood, or fluidized bed, or hybrid suspension
(C) Require documentation that a grate boilers; and
building has been tested for and does (B) CTRTs can comprise no more
not include lead-based paint before ac- than 40 percent of the fuel that is used
cepting demolition debris from that on an annual heat input basis.
building. (8) Creosote-borate treated railroad
(iii) Training. Processors must train ties, and mixtures of creosote, borate
operators to exclude or remove the ma- and/or copper naphthenate treated rail-
terials as listed in paragraph (a)(5) of road ties that are processed and then
this section from the final product fuel. combusted in the following types of
Records of training must include date units. Processing must include, at a
of training held and must be main- minimum, metal removal and shred-
tained on-site for a period of three ding or grinding.
years. (i) Units designed to burn both bio-
mass and fuel oil as part of normal op-
(iv) Written certification. A written
erations and not solely as part of start-
certification must be obtained by the
up or shut-down operations; and
combustor for every new or modified
(ii) Units at major source pulp and
contract, purchase agreement, or other
paper mills or power producers subject
legally binding document, from each to 40 CFR part 63, subpart DDDDD, de-
final processor of C&D wood and must signed to burn biomass and fuel oil as
include the statement: the processed part of normal operations and not sole-
C&D wood has been sorted by trained op- ly as part of start-up or shut-down op-
erators in accordance with best manage- erations, but are modified (e.g., oil de-
ment practices. livery mechanisms are removed) in
(6) Paper recycling residuals gen- order to use natural gas instead of fuel
erated from the recycling of recovered oil, The creosote-borate and mixed cre-
paper, paperboard and corrugated con- osote, borate and copper naphthenate
tainers and combusted by paper recy- treated railroad ties may continue to
cling mills whose boilers are designed be combusted as product fuel under
to burn solid fuel. this subparagraph only if the following
(7) Creosote-treated railroad ties that conditions are met, which are intended
are processed and then combusted in to ensure that such railroad ties are
the following types of units. Processing not being discarded:
must include, at a minimum, metal re- (A) Creosote-borate and mixed creo-
moval and shredding or grinding. sote, borate and copper naphthenate
(i) Units designed to burn both bio- treated railroad ties must be burned in
mass and fuel oil as part of normal op- existing (i.e., commenced construction
erations and not solely as part of start- prior to April 14, 2014) stoker, bubbling
up or shut-down operations, and bed, fluidized bed, or hybrid suspension
(ii) Units at major source pulp and grate boilers; and
paper mills or power producers subject (B) Creosote-borate and mixed creo-
to 40 CFR part 63, subpart DDDDD, sote, borate and copper naphthenate
that combust CTRTs and had been de- treated railroad ties can comprise no
signed to burn biomass and fuel oil, but more than 40 percent of the fuel that is
are modified (e.g., oil delivery mecha- used on an annual heat input basis.
nisms are removed) in order to use nat- (iii) Units meeting requirements in
ural gas instead of fuel oil, as part of paragraph (a)(8)(i) or (ii) of this section
normal operations and not solely as that are also designed to burn coal.
part of start-up or shut-down oper- (9) Copper naphthenate treated rail-
ations. The CTRTs may continue to be road ties that are processed and then
combusted as product fuel under this combusted in units designed to burn

subparagraph only if the following con- biomass, biomass and fuel oil, or bio-
ditions are met, which are intended to mass and coal. Processing must include
366
at a minimum, metal removal, and final decision by publishing in the FED-

shredding or grinding. ERAL REGISTER a regulatory amend-
(10) Copper naphthenate-borate treatment or a denial of the petition.
ed railroad ties that are processed and (5) The Administrator will grant or
then combusted in units designed to deny a petition based on the weight of
burn biomass, biomass and fuel oil, or evidence showing the following:
biomass and coal. Processing must in- (i) The non-hazardous secondary ma-
clude at a minimum, metal removal, terial has not been discarded in the
and shredding or grinding. first instance and is legitimately used
(b) Any person may submit a rule- as a fuel in a combustion unit, or if dis-
making petition to the Administrator carded, has been sufficiently processed
to identify additional non-hazardous into a material that is legitimately
secondary materials to be listed in used as a fuel.
paragraph (a) of this section. Contents (ii) Where any one of the legitimacy
and procedures for the submittal of the criteria in § 241.3(d)(1) is not met, that
petitions include the following: the use of the non-hazardous secondary
(1) Each petition must be submitted material is integrally tied to the indus-
to the Administrator by certified mail trial production process, that the non-
and must include: hazardous secondary material is func-
(i) The petitioner’s name and address; tionally the same as the comparable
(ii) A statement of the petitioner’s traditional fuel, or other relevant fac-
interest in the proposed action; tors as appropriate.
(iii) A description of the proposed ac- [78 FR 9213, Feb. 7, 2013, as amended by 81 FR
tion, including (where appropriate) 6743, Feb. 8, 2016; 83 FR 5340, Feb. 7, 2018]
suggested regulatory language; and
(iv) A statement of the need and jus- PART 243—GUIDELINES FOR THE
tification for the proposed action, in-
cluding any supporting tests, studies, STORAGE AND COLLECTION OF
or other information. Where the non- RESIDENTIAL, COMMERCIAL,
hazardous secondary material does not AND INSTITUTIONAL SOLID
meet the legitimacy criteria, the appli- WASTE
cant must explain why such non-haz-
ardous secondary material should be Subpart A—General Provisions
considered a non-waste fuel, balancing Sec.
the legitimacy criteria with other rel- 243.100 Scope.
evant factors. 243.101 Definitions.
(2) The Administrator will make a
tentative decision to grant or deny a Subpart B—Requirements and
petition and will publish notice of such Recommended Procedures
tentative decision, either in the form 243.200 Storage.
of an advanced notice of proposed rule- 243.200–1 Requirement.
making, a proposed rule, or a tentative 243.200–2 Recommended procedures: Design.
determination to deny the petition, in 243.201 Safety.
the FEDERAL REGISTER for written pub- 243.201–1 Requirement.
lic comment. 243.201–2 Recommended procedures: Oper-
(3) Upon the written request of any ations.
243.202 Collection equipment.
interested person, the Administrator 243.202–1 Requirement.
may, at its discretion, hold an informal 243.202–2 Recommended procedures: Design.
public hearing to consider oral com- 243.202–3 Recommended procedures: Oper-
ments on the tentative decision. A per- ations.
son requesting a hearing must state 243.203 Collection frequency.
the issues to be raised and explain why 243.203–1 Requirement.
written comments would not suffice to
ations.
communicate the person’s views. The 243.204 Collection management.
Administrator may in any case decide 243.204–1 Requirement.
on its own motion to hold an informal 243.204–2 Recommended procedures: Oper-
public hearing. ations.

(4) After evaluating all public com- APPENDIX TO PART 243—RECOMMENDED BIBLI-
ments the Administrator will make a OGRAPHY
367
§ 243.100 40 CFR Ch. I (7–1–21 Edition)
AUTHORITY: 42 U.S.C. 6907(a)(3), 6912(a)(1), contracts should require conformance
and 6944(a). with the guidelines requirements un-
SOURCE: 41 FR 6769, Feb. 13, 1976, unless less service meeting such requirements
otherwise noted. is not reasonably available. It is left to
the head of the responsible agency to
Subpart A—General Provisions decide how the requirements of the
guidelines will be met.
§ 243.100 Scope. (g) The Environmental Protection
(a) These guidelines are promulgated Agency will give technical assistance
in partial fulfillment of section 209(a) and other guidance to Federal agencies
of the Solid Waste Disposal Act, as when requested to do so under section
amended (Pub. L. 89–272). 3(D)1 of Executive Order 12088.
(b) The guidelines apply to the col- (h) Within 1 year after the final pro-
lection of residential, commercial, and mulgation of these guidelines, Federal
institutional solid wastes and street agencies shall decide what actions
wastes. Explicitly excluded are mining, shall be taken to adopt the require-
agricultural, and industrial solid ments of these guidelines and shall,
wastes; hazardous wastes; sludges; con- within 60 days of this decision, submit
struction and demolition wastes; and to the Administrator a schedule of
infectious wastes. such actions.
(c) The ‘‘Requirement’’ sections con- (i) Federal agencies that decide not
tained herein delineate minimum lev- to adopt the requirements contained
els of performance required of solid herein, for whatever reason, shall make
waste collection operations. Under sec- available to the Administrator a report
tion 211 of the Solid Waste Disposal of the analysis and rationale used in
Act, as amended, and Executive Order making that decision. The Adminis-
12088, the ‘‘Requirement’’ sections of trator shall publish notice of avail-
these guidelines are mandatory for ability of this report in the FEDERAL
Federal agencies. In addition, they are REGISTER. EPA considers the following
recommended to State, interstate, re- reasons to be valid for purposes of non-
gional, and local governments for use compliance: costs so high as to render
in their activities. compliance economically impracti-
(d) The ‘‘Recommended procedures’’ cable, and the technical inhibitions to
sections are presented to suggest addi- compliance specifically described in
tional actions or preferred methods by the guidelines.
which the objectives of the require- (1) The following points are to be cov-
ments can be realized. The ‘‘Rec- ered in the report.
ommended procedures’’ are not manda- (i) A description of the proposed or
tory for Federal agencies. on-going practices which will not be in
(e) The guidelines apply equally to compliance with these guidelines. This
Federal agencies generating solid statement should identify all agency
waste whether the solid waste is actu- facilities which will be affected by non-
ally collected by a Federally operated compliance including a brief descrip-
or non-Federally operated collection tion of how such facilities will be af-
system, except in the case of isolated fected.
Federal facilities such as post offices, (ii) A description of the alternative
military recruiting stations, and other actions considered with emphasis on
offices where local community solid those alternatives which, if taken,
waste collection systems are utilized, would be in compliance with these
which are not within the managerial guidelines.
control of the Federal agency. (iii) The rationale for the action cho-
(f) The guidelines shall be imple- sen by the agency including technical
mented in those situations where the data and policy considerations used in
Federal agency is able to exercise di- arriving at this decision.
rect managerial control over the col- In covering these points, agencies
lection system through operation of should make every effort to present the
the system or by contracting for col- information succinctly in a form easily

lection service. Where non-Federal col- understood, but in sufficient detail so
lection systems are utilized, service that the Administrator and the public
368
may understand the factors influencing (f) Collection frequency means the
the decision not to adopt the require- number of times collection is provided
ments of these guidelines. in a given period of time.
(2) The report shall be submitted to (g) Commercial solid waste means all
the Administrator as soon as possible types of solid wastes generated by
after a final agency decision has been stores, offices, restaurants, ware-
made not to adopt the requirements of houses, and other non-manufacturing
these guidelines, but in no case later activities, excluding residential and in-
than 60 days after the final decision. dustrial wastes.
The Administrator will indicate to the (h) Compactor collection vehicle means
agency his concurrence/nonconcurrence a vehicle with an enclosed body con-
with the agency’s decision, including taining mechanical devices that con-
his reasons. vey solid waste into the main compart-
(3) Implementation of actions not in ment of the body and compress it into
compliance with these guidelines shall a smaller volume of greater density.
be deferred, where feasible, in order to (i) Construction and demolition waste
give the Administrator time to receive, means the waste building materials,
analyze, and seek clarification of the packaging, and rubble resulting from
required report. construction, remodeling, repair, and
(4) It is recommended that where the demolition operations on pavements,
report on non-compliance concerns an houses, commercial buildings, and
action for which an Environmental Im- other structures.
pact Statement (EIS) is required by the (j) Curb collection means collection of
National Environmental Policy Act, solid waste placed adjacent to a street.
that the report be circulated simulta- (k) Federal facility means any build-
neously with the EIS, since much of ing, installation, structure, land, or
the information to satisfy the require- public work owned by or leased to the
ments of the report will be useful in Federal Government. Ships at sea, air-
the preparation of the EIS. craft in the air, land forces on maneu-
vers, and other mobile facilities are
FR 70606, Dec. 17, 1999] not considered ‘‘Federal facilities’’ for
the purpose of these guidelines. United
§ 243.101 Definitions. States Government installations lo-
cated on foreign soil or on land outside
As used in these guidelines: the jurisdiction of the United States
(a) Alley collection means the collec- Government are not considered ‘‘Fed-
tion of solid waste from containers eral facilities’’ for the purpose of these
placed adjacent to or in an alley. guidelines.
(b) Agricultural solid waste means the (l) Food waste means the organic resi-
solid waste that is generated by the dues generated by the handling, stor-
rearing of animals, and the producing age, sale, preparation, cooking, and
and harvesting of crops or trees. serving of foods, commonly called gar-
(c) Bulky waste means large items of bage.
solid waste such as household appli- (m) Generation means the act or proc-
ances, furniture, large auto parts, ess of producing solid waste.
trees, branches, stumps, and other (n) Hazardous waste means a waste or
oversize wastes whose large size pre- combination of wastes of a solid, liq-
cludes or complicates their handling by uid, contained gaseous, or semisolid
normal solid wastes collection, proc- form which may cause, or contribute
essing, or disposal methods. to, an increase in mortality or an in-
(d) Carryout collection means collec- crease in serious irreversible, or inca-
tion of solid waste from a storage area pacitating reversible illness, taking
proximate to the dwelling unit(s) or es- into account the toxicity of such
tablishment. waste, its persistence and degradability
(e) Collection means the act of remov- in nature, its potential for accumula-
ing solid waste (or materials which tion or concentration in tissue, and
have been separated for the purpose of other factors that may otherwise cause
recycling) from a central storage point. or contribute to adverse acute or
369
§ 243.101 40 CFR Ch. I (7–1–21 Edition)
chronic effects on the health of persons pollutants in water resources, such as

or other organisms. silt, dissolved materials in irrigation
(o) Industrial solid waste means the return flows or other common water
solid waste generated by industrial pollutants.
processes and manufacturing. (y) Solid waste means garbage, refuse,
(p) Infectious waste means: (1) Equip- sludges, and other discarded solid ma-
ment, instruments, utensils, and terials, including solid waste materials
formites of a disposable nature from resulting from industrial, commercial,
the rooms of patients who are sus- and agricultural operations, and from
pected to have or have been diagnosed community activities, but does not in-
as having a communicable disease and
clude solid or dissolved materials in
must, therefore, be isolated as required
domestic sewage or other significant
by public health agencies; (2) labora-
tory wastes, such as pathological speci- pollutants in water resources, such as
mens (e.g., all tissues, specimens of silt, dissolved or suspended solids in in-
blood elements, excreta, and secretions dustrial wastewater effluents, dissolved
obtained from patients or laboratory materials in irrigation return flows or
animals) and disposable fomites (any other common water pollutants. Unless
substance that may harbor or transmit specifically noted otherwise, the term
pathogenic organisms) attendant ‘‘solid waste’’ as used in these guide-
thereto; (3) surgical operating room lines shall not include mining, agricul-
pathologic specimens and disposable tural, and industrial solid wastes; haz-
fomites attendant thereto, and similar ardous wastes; sludges; construction
disposable materials from outpatient and demolition wastes; and infectious
areas and emergency rooms. wastes.
(q) Institutional solid waste means (z) Stationary compactor means a pow-
solid wastes generated by educational, ered machine which is designed to com-
health care, correctional, and other in- pact solid waste or recyclable mate-
stitutional facilities. rials, and which remains stationary
(r) Mining wastes means residues when in operation.
which result from the extraction of raw (aa) Storage means the interim con-
materials from the earth.
tainment of solid waste after genera-
(s) Residential solid waste means the
tion and prior to collection for ulti-
wastes generated by the normal activi-
ties of households, including, but not mate recovery or disposal.
limited to, food wastes, rubbish, ashes, (bb) Solid waste storage container
and bulky wastes. means a receptacle used for the tem-
(t) Responsible agency means the orga- porary storage of solid waste while
nizational element that has the legal awaiting collection.
duty to ensure compliance with these (cc) Street wastes means materials
guidelines. picked up by manual or mechanical
(u) Rubbish means a general term for sweepings of alleys, streets, and side-
solid waste, excluding food wastes and walks; wastes from public waste recep-
ashes, taken from residences, commer- tacles; and material removed from
cial establishments, and institutions. catch basins.
(v) Satellite vehicle means a small col- (dd) Transfer station means a site at
lection vehicle that transfers its load which solid wastes are concentrated for
into a larger vehicle operating in con- transport to a processing facility or
junction with it. land disposal site. A transfer station
(w) Scavenging means the uncon- may be fixed or mobile.
trolled and unauthorized removal of (ee) Vector means a carrier that is ca-
materials at any point in the solid
pable of transmitting a pathogen from
waste management system.
one organism to another.
(x) Sludge means the accumulated
semiliquid suspension of settled solids
deposited from wastewaters or other
fluids in tanks or basins. It does not in-

clude solids or dissolved material in
domestic sewage or other significant
370
Subpart B—Requirements and lished by the American National

Recommended Procedures Standards Institute (ANSI) for waste
containers as follows: Waste Con-
§ 243.200 Storage. tainers—Safety Requirements, 1994,
American National Standards Insti-
§ 243.200–1 Requirement. tute, ANSI Z245.30–1994; and Waste Con-
(a) All solid wastes (or materials tainers—Compatibility Dimensions,
which have been separated for the pur- 1996, American National Standards In-
pose of recycling) shall be stored in stitute, ANSI Z245.60–1996.
such a manner that they do not con- (1) The Director of the Federal Reg-
stitute a fire, health, or safety hazard ister approves this incorporation by
or provide food or harborage for vec- reference in accordance with 5 U.S.C.
tors, and shall be contained or bundled 552(a) and 1 CFR part 51.
so as not to result in spillage. All solid (2) You may obtain a copy from
waste containing food wastes shall be American National Standards Insti-
securely stored in covered or closed tute, 11 W. 42nd Street, New York, NY
containers which are nonabsorbent, 10036. You may inspect a copy at the
leakproof, durable, easily cleanable (if Environmental Protection Agency’s
reusable), and designed for safe han- RCRA Information Center, 1235 Jeffer-
dling. Containers shall be of an ade- son Davis Highway, Arlington, VA or
quate size and in sufficient numbers to at the National Archives and Records
contain all food wastes, rubbish, and Administration (NARA). For informa-
ashes that a residence or other estab- tion on the availability of this mate-
lishment generates in the period of rial at NARA, call 202–741–6030, or go
time between collections. Containers to: http://www.archives.gov/fed-
shall be maintained in a clean condi- erallregister/
tion so that they do not constitute a codeloflfederallregulations/
nuisance, and to retard the harborage, ibrllocations.html.
feeding, and breeding of vectors. When [41 FR 6769, Feb. 13, 1976, as amended at 64
serviced, storage containers should be FR 70606, Dec. 17, 1999; 69 FR 18803, Apr. 9,
emptied completely of all solid waste. 2004]
(b) Storage of bulky wastes shall in-
clude, but is not limited to, removing § 243.200–2 Recommended procedures:
all doors from large household appli- Design.
ances and covering the item(s) to re- (a) Reusable waste containers should
duce the problems of an attractive nui- be constructed of corrosion resistant
sance, and the accumulation of solid metal or other material which will not
waste and water in and around the absorb water, grease, or oil. The con-
bulky items. tainers should be leakproof, including
(c) Reusable waste containers which sides, seams, and bottoms, and be dura-
are emptied manually shall not exceed ble enough to withstand anticipated
75 pounds (34.05 kg) when filled, and usage without rusting, cracking, or de-
shall be capable of being serviced with- forming in a manner that would impair
out the collector coming into physical serviceability. The interior of the con-
contact with the solid waste. tainer should be smooth without inte-
(d) In the design of all buildings or rior projections or rough seams which
other facilities which are constructed, would make it difficult to clean or
modified, or leased after the effective interfere with its emptying. The exte-
date of these guidelines, there shall be rior of the container should be safe for
provisions for storage in accordance handling with no cracks, holes, or jag-
with these guidelines which will ac- ged edges. Containers should be stored
commodate the volume of solid waste on a firm, level, well-drained surface
anticipated, which may be easily which is large enough to accommodate
cleaned and maintained, and which will all of the containers and which is
allow for efficient, safe collection. maintained in a clean, spillage-free
(e) Waste containers used for the condition.
storage of solid waste (or materials (1) Reusable waste containers which
which have been separated for recy- are emptied manually should have a
cling) must meet the standards estab- capacity of no more than 35 gallons
371
§ 243.201 40 CFR Ch. I (7–1–21 Edition)
(132.51) in volume, unless they are such as those presented in Operation

mounted on casters and can be serviced Responsible: Safe Refuse Collection.
by being rolled to the collection vehi- (b) Personal protective equipment
cle and tilted for emptying. The con- such as gloves, safety glasses, res-
tainers should be constructed with pirators, and footwear should be used
rounded edges and tapered sides with by collection employees, as appro-
the larger diameter at the top of the priate. This equipment should meet the
container to facilitate discharge of the applicable provisions of the Occupa-
solid waste by gravity. Containers tional Safety and Health Administra-
should have two handles or bails lo- tion Standards for Subpart I—Personal
cated directly opposite one another on Protective Equipment (29 CFR 1910.132
the sides of the container. Containers through 1910.137).
should have covers which are tight-fit- (c) Scavenging should be prohibited
ting to resist the intrusion of water at all times to avoid injury and to pre-
and vectors, and should be equipped vent interference with collection oper-
with a suitable handle. Containers ations.
should be designed so that they cannot (d) When conducting carryout collec-
be tipped over easily. tion, a leakproof and puncture-proof
(2) Reusable waste containers which carrying container should be used to
are emptied mechanically should be de- minimize the potential for physical
signed or equipped to prevent spillage contact between the collector and the
or leakage during on-site storage, col- solid waste or the liquids which may
lection, or transport. The container derive from it.
should be easily cleanable and designed
§ 243.202 Collection equipment.
to allow easy access for depositing the
waste and removing it by gravity or by § 243.202–1 Requirement.
mechanical means. The containers
should be easily accessible to the col- (a) All vehicles used for the collec-
lection vehicle in an area which can tion and transportation of solid waste
safely accommodate the dimensions (or materials which have been sepa-
and weight of the vehicle. rated for the purpose of recycling)
which are considered to be operating in
(b) Single-use plastic and paper bags
interstate or foreign commerce shall
should meet the National Sanitation
meet all applicable standards estab-
Foundation Standard No. 31 for poly-
lished by the Federal Government, in-
ethylene refuse bags and Standard No.
cluding, but not limited to, Motor Car-
32 for paper refuse bags, respectively. rier Safety Standards (49 CFR parts 390
However, such bags do not need to have through 396) and Noise Emission Stand-
been certified by the National Sanita- ards for Motor Carriers Engaged in
tion Foundation. Single-use bags con- Interstate Commerce (40 CFR part 202).
taining food wastes should be stored Federally owned collection vehicles
within the confines of a building or shall be operated in compliance with
container between collection periods. Federal Motor Vehicle Safety Stand-
ards (49 CFR parts 500 through 580).
§ 243.201 Safety.
(b) All vehicles used for the collec-
§ 243.201–1 Requirement. tion and transportation of solid waste
(or materials which have been sepa-
Collection systems shall be operated rated for the purpose of recycling) shall
in such a manner as to protect the be enclosed or adequate provisions
health and safety of personnel associ- shall be made for suitable cover, so
ated with the operation. that while in transit there can be no
spillage.
§ 243.201–2 Recommended procedures: (c) The equipment used in the com-
Operations. paction, collection, and transportation
(a) All solid waste collection per- of solid waste (or materials which have
sonnel should receive instructions and been separated for the purpose of recy-
training in safe container and waste cling) shall be constructed, operated,

handling techniques, and in the proper and maintained in such a manner as to
operation of collection equipment, minimize health and safety hazards to
372
solid waste management personnel and (4) Easily accessible first aid equip-
the public. This equipment shall be ment.
maintained in good condition and kept (5) Easily accessible fire extin-
clean to prevent the propagation or at- guisher.
traction of vectors and the creation of (6) Audible reverse warning device.
nuisances. (c) If crew members ride outside the
(d) Collection equipment used for the cab of the collection vehicle for short
collection, storage, and transportation trips the vehicle should be equipped
of solid waste (or materials which have with handholds and platforms big
been separated for recycling) must enough to safeguard against slipping.
meet the standards established by the
(d) Vehicle size should take into con-
American National Standards Institute
sideration: Local weight and height
as follows: Mobile Refuse Collection
limits for all roads over which the ve-
and Compaction Equipment—Safety
Requirements, 1992, American National hicle will travel; turning radius; and
Standards Institute, ANSI Z245.1–1992; loading height in the unloading posi-
and Stationary Compactors—Safety tion to insure overhead clearance in
Requirements, 1997, American National transfer stations, service buildings, in-
Standards Institute, ANSI Z245.2–1997. cinerators, or other facilities.
(1) The Director of the Federal Reg- (e) Engines which conserve fuel and
ister approves this incorporation by minimize pollution should be used in
reference in accordance with 5 U.S.C. collection vehicles to reduce fuel con-
552(a) and 1 CFR part 51. sumption and air pollution.
(2) You may obtain a copy from
American National Standards Insti- § 243.202–3 Recommended procedures:
Operations.
tute, 11 W. 42nd Street, New York, NY
10036. You may inspect a copy at the (a) Collection vehicles should be
Environmental Protection Agency’s maintained and serviced according to
RCRA Information Center, 1235 Jeffer- manufacturers’ recommendations, and
son Davis Highway, Arlington, VA or receive periodic vehicle safety checks,
at the National Archives and Records including, but not limited to, inspec-
Administration (NARA). For information of brakes, windshield wipers, tail-
tion on the availability of this mate- lights, backup lights, audible reverse
rial at NARA, call 202–741–6030, or go warning devices, tires, and hydraulic
to: http://www.archives.gov/fed- systems. Any irregularities should be
erallregister/ repaired before the vehicle is used. Ve-
codeloflfederallregulations/ hicles should also be cleaned thor-
ibrllocations.html. oughly at least once a week.
In the procurement of new collection (b) Solid waste should not be allowed
equipment before the effective dates of to remain in collection vehicles over 24
ANSI Z245.1, equipment which meets hours and should only be left in a vehi-
the standards shall be obtained if avail- cle overnight when this practice does
able. not constitute a fire, health, or safety
hazard.
FR 70606, Dec. 17, 1999; 69 FR 18803, Apr. 9,
2004]
§ 243.203 Collection frequency.
§ 243.202–2 Recommended procedures: § 243.203–1 Requirement.

Design. Solid wastes (or materials which
(a) Whenever possible, enclosed, have been separated for the purpose of
metal, leak-resistant compactor vehi- recycling) shall be collected with fre-
cles should be used for the collection of quency sufficient to inhibit the propa-
solid wastes. gation or attraction of vectors and the
(b) Safety devices, including, but not creation of nuisances. Solid wastes
limited to, the following should be pro- which contain food wastes shall be col-
vided on all collection vehicles: lected at a minimum of once during
(1) Exterior rear-view mirrors. each week. Bulky wastes shall be col-
(2) Back-up lights. lected at a minimum of once every 3
(3) Four-way emergency flashers. months.
373
§ 243.203–2 40 CFR Ch. I (7–1–21 Edition)
§ 243.203–2 Recommended procedures: tained at recommended pressures, and

Operations. compaction equipment should be serv-
(a) The minimum collection fre- iced regularly to achieve the most effi-
quency consistent with public health cient compaction.
and safety should be adopted to mini- (3) Compactor trucks should be used
mize collection costs and fuel con- to reduce the number of trips to the
sumption. In establishing collection disposal site.
frequencies, generation rates, waste (4) When the distance or travel time
composition, and storage capacity from collection routes to disposal sites
should be taken into consideration. is great, transfer stations should be
(b) When solid wastes are separated used when cost effective.
at the point of storage into various (5) Residential solid waste containers
categories for the purpose of resource which are serviced manually should be
recovery, a collection frequency should placed at the curb or alley for collec-
be designated for each waste category. tion.
(6) For commercial wastes which do
§ 243.204 Collection management. not contain food wastes, storage capac-
ity should be increased in lieu of more
§ 243.204–1 Requirement. frequent collection.
The collection of solid wastes (or ma-
terials which have been separated for APPENDIX TO PART 243—RECOMMENDED
the purpose of recycling) shall be con- BIBLIOGRAPHY
ducted in a safe, efficient manner, 1. American National Standard Z245.1.
strictly obeying all applicable traffic Safety standard for refuse collection equip-
and other laws. The collection vehicle ment. New York. The American National
operator shall be responsible for imme- Standards Institute.
diately cleaning up all spillage caused 2. Decision-Makers guide in solid waste
by his operations, for protecting pri- management. Environmental Protection
vate and public property from damage Publication SW-127. Washington, U.S. Gov-
ernment Printing Office, 1974.
resulting from his operations, and for 3. Grupenhoff, B. L., and K. A. Shuster.
creating no undue disturbance of the Paper and plastic solid waste sacks; a sum-
peace and quiet in residential areas in mary of available information; a Division of
and through which he operates. Technical Operations open-file report (TO
18.1.03.1). [Cincinnati], U.S. Environmental
§ 243.204–2 Recommended procedures: Protection Agency, 1971. 17 p. [Restricted
Operations. distribution].
(a) Records should be maintained de- 4. Hegdahl, T. A., Solid waste transfer sta-
tions; a state-of-the-art report on systems
tailing all costs (capital, operating,
incorporating highway transportation, U.S.
and maintenance) associated with the Environmental Protection Agency, 1972, 160
collection system. These records p. (Distributed by National Technical Infor-
should be used for scheduling mainte- mation Service, Springfield, Virginia, as PB
nance and replacement, for budgeting, 213 511).
and for system evaluation and com- 5. National Sanitation Foundation stand-
parison. ard no. 31 for polyethylene refuse bags. Ann
(b) The collection system should be Arbor, The National Sanitation Foundation,
reviewed on a regular schedule to as- May 22, 1970. 6 p.
6. National Sanitation Foundation stand-
sure that environmentally adequate, ard no. 32 for paper refuse sacks. Ann Arbor,
economical, and efficient service is The National Sanitation Foundation, Nov.
maintained. 13, 1970. 6 p.
(c) Solid waste collection systems 7. National Sanitation Foundation stand-
should be operated in a manner de- ard no. 13 for refuse compactors and com-
signed to minimize fuel consumption, pactor systems. Ann Arbor, The National
including, but not limited to, the fol- Sanitation Foundation, March 1973. 12 p.
lowing procedures. 8. Operation responsible (a safety training
manual for S.W. Collection): Safe refuse col-
(1) Collection vehicle routes should lection: instructor’s manual with slides,
be designed to minimize driving dis- training manual with slides, and 16 mm film.
tances and delays. Available from the National Audiovisual

(2) Collection vehicles should receive Center, General Services Administration,
regular tuneups, tires should be main- Washington, DC 20409.
374
9. Ralph Stone and Company, Inc. The use 246.201–2 Recommended procedures: News-
of bags for solid waste storage and collec- print recovery from smaller residential
tion. Environmental Protection Publication facilities.
SW–42d. U.S. Environmental Protection 246.201–3 Recommended procedures: Glass,
Agency, 1972. 264 p. (Distributed by National can, and mixed paper separation.
Technical Information Service, Springfield, 246.201–4 Recommended procedures: Market
Virginia, as PB 212 590). study.
10. Shuster, K. A., and D. A. Schur. Heu- 246.201–5 Recommended procedures: Meth-
ristic routing for solid waste collection vehi- ods of separation and collection.
cles. Environmental Protection Publication 246.201–6 Recommended procedures: Trans-
SW-113. Washington, U.S. Government Print- portation to market.
ing Office, 1974. 45 p. 246.201–7 Recommended procedures: Cost
11. Shuster, K. (Office of Solid Waste Man- analysis.
agement Programs.) Analysis of fuel con- 246.201–8 Recommended procedures: Con-
sumption for solid waste management. Un- tracts.
published data, January 1974. 246.201–9 Recommended procedures: Public
12. U.S. Environmental Protection Agency. information and education.
Pesticides and pesticides containers; regula- 246.202 Corrugated container recovery.
tions for acceptance and recommended pro- 246.202–1 Requirement.
cedures for disposal and storage. FEDERAL 246.202–2 Recommended procedures: Cor-
REGISTER, 39 (85): 15235–15241, May 1, 1974. rugated container recovery from smaller
13. U.S. Environmental Protection Agency. commercial facilities.
Pesticides and pesticides containers; pro- 246.202–3 Recommended procedures: Market
posed regulations for prohibition of certain study.
acts regarding disposal and storage. FEDERAL 246.202–4 Recommended procedures: Meth-
REGISTER, 39 (200): 36847–36950, October 15, ods of separation and storage.
1974.
246.202–5 Recommended procedures: Trans-
portation.
PART 246—SOURCE SEPARATION 246.202–6 Recommended procedures: Cost
FOR MATERIALS RECOVERY analysis.
246.202–7 Recommended procedures: Estab-
GUIDELINES lishment of purchase contract.
246.203 Reevaluation.
APPENDIX TO PART 246—RECOMMENDED BIBLI-
Sec. OGRAPHY
246.100 Scope. AUTHORITY: Secs. 1008 and 6004 of the Solid
246.101 Definitions. Waste Disposal Act, as amended by the Re-
source Conservation and Recovery Act of
Subpart B—Requirements and 1976, as amended (42 U.S.C. 6907, 6964).
Recommended Procedures SOURCE: 41 FR 16952, Apr. 23, 1976, unless
246.200 High-grade paper recovery. otherwise noted.
246.200–1 Requirements.
246.200–2 Recommended procedures: High- Subpart A—General Provisions
grade paper recovery from smaller of-
fices. § 246.100 Scope.
246.200–3 Recommended procedures: Market
study. (a) These guidelines are applicable to
246.200–4 Recommended procedures: Levels the source separation of residential,
of separation. commercial, and institutional solid
246.200–5 Recommended procedures: Meth- wastes. Explicitly excluded are mining,
ods of separation and collection. agricultural, and industrial solid
246.200–6 Recommended procedures: Stor- wastes; hazardous wastes; sludges; con-
age. struction and demolition wastes; infec-
246.200–7 Recommended procedures: Trans- tious wastes; classified waste.
portation. (b) The ‘‘Requirement’’ sections con-
246.200–8 Recommended procedures: Cost
tained herein delineate minimum ac-
analysis.
246.200–9 Recommended procedures: Con-
tions for Federal agencies for the re-
tracts. covery of resources from solid waste
246.200–10 Recommended procedures: Public through source separation. Pursuant to
information and education. section 211 of the Solid Waste Disposal

246.201 Residential materials recovery. Act, as amended, and Executive Order
246.201–1 Requirement. 11752 section 4(a), the ‘‘Requirement’’
375
§ 246.101 40 CFR Ch. I (7–1–21 Edition)
sections of these guidelines are manda- tions including a brief description of

tory for all Federal agencies that gen- how such facilities will be affected.
erate solid waste. In addition, they are (iii) An analysis in support of the ac-
recommended to State, interstate, re- tion chosen by the agency including
gional, and local governments for use technical data, market studies, and
in their activities. policy considerations used in arriving
(c) The ‘‘Recommended Procedures’’ at such a determination.
sections are presented to suggest ac- In covering the points above, agencies
tions or preferred methods by which should make every effort to present in-
the objectives of the requirements can formation succinctly in a form easily
be realized. The ‘‘Recommended Proce- understood, but in sufficient detail so
dures’’ are not mandatory for Federal that the factors influencing the deci-
agencies. sion not to source separate for mate-
(d) The Environmental Protection rials recovery are clear.
Agency will render technical assist- (2) The above report shall be sub-
ance in the form of sample cost anal- mitted to the Administrator as soon as
ysis formats, sample bid specifications, possible after a final agency deter-
implementation guidance documents mination has been made not to adopt
and other guidance to Federal agencies the requirements of these guidelines,
when requested to do so, pursuant to but in no case later than sixty days
section 3(d)1 of Executive Order 11752. after such final determination. The Ad-
(e) Within one year after the effec- ministrator will indicate to the agency
tive date of these guidelines, agencies his concurrence/nonconcurrence with
shall make a final determination as to the agency’s decision, including his
what actions shall be taken to adopt reason therefor.
the requirements of these guidelines (3) Implementation of actions that
and shall, within two months of such would preclude source separation for
determination, submit to the Adminis- materials recovery shall be deferred,
trator a schedule of such actions. for sixty days where feasible, in order
(f) Federal agencies that make the to give the Administrator an oppor-
determination not to source separate tunity to receive, analyze and seek
as described in §§ 246.200–1, 246.201–1, clarification of the above required re-
and 246.202–1, for whatever reason, shall port.
make available to the Administrator (4) It is recommended that where the
the analysis and rationale used in mak- report required by § 246.100(f) concerns
ing that determination. The Adminis- an action for which an Environmental
trator shall publish notice of the avail- Impact Statement (EIS) is required by
ability of this report to the general the National Environmental Policy
public in the FEDERAL REGISTER. The Act, that the report be circulated to-
following are considered to be valid gether with the EIS.
reasons for not source separating under (g) The report required under
individual facts and circumstances: in- § 246.100(e) and (f) shall be made on
ability to sell the recovered materials forms to be prescribed by the Adminis-
due to lack of market, and costs so un- trator by notice in the FEDERAL REG-
reasonably high as to render source ISTER.
separation for materials recovery eco- [41 FR 16952, Apr. 23, 1976, as amended at 47
nomically impracticable. FR 36603, Aug. 20, 1982]
(1) The following points are to be cov-
ered in the report: § 246.101 Definitions.
(i) A description of alternative ac- As used in these guidelines:
tions considered with emphasis on (a) Agricultural solid waste means the
those alternatives which involve source solid waste that is generated by the
separation for materials recovery. rearing of animals, and the producing
(ii) A description of ongoing actions and harvesting of crops or trees.
which will be continued and new ac- (b) Baler means a machine used to
tions taken or proposed. This state- compress solid wastes, primary mate-
ment should identify all agency facili- rials, or recoverable materials, with or
ties which will be affected by these ac- without binding, to a density or from
376
which will support handling and trans- vers, and other mobile facilities are
portation as a material unit rather not considered Federal facilities for
than requiring a disposable or reuse- the purpose of these guidelines. United
able container. This specifically ex- States Government installations lo-
cludes briquetters and stationary com- cated on foreign soil or on land outside
paction equipment which is used to the jurisdiction of the United States
compact materials into disposable or Government are not considered Federal
reuseable containers. facilities for the purpose of these
(c) Bulk container means a large con- guidelines.
tainer that can either be pulled or lift- (m) Food waste means the organic
ed mechanically onto a service vehicle residues generated by the handling,
or emptied mechanically into a service storage, sale, preparation, cooking, and
vehicle. serving of foods; commonly called gar-
(d) Classified Waste means waste ma- bage.
terial that has been given security (n) Generation means the act or proc-
classification in accordance with 50 ess of producing solid waste.
U.S.C. 401 and Executive Order 11652. (o) High-grade paper means letter-
(e) Collection means the act of remov- head, dry copy papers, miscellaneous
ing solid waste (or materials which business forms, stationery, typing
have been separated for the purpose of paper, tablet sheets, and computer
recycling) from a central storage point. printout paper and cards, commonly
(f) Commercial establishment means sold as ‘‘white ledger,’’ ‘‘computer
stores, offices, restaurants, warehouses printout’’ and ‘‘tab card’’ grade by the
and other non-manufacturing activi- wastepaper industry.
ties. (p) Industrial solid waste means the
(g) Commercial solid waste means all solid waste generated by industrial
types of solid wastes generated by processes and manufacturing.
stores, offices, restaurants, warehouses (q) Infectious waste means: (1) Equip-
and other non-manufacturing activi- ment, instruments, utensils, and
ties, and non-processing wastes such as fomites (any substance that may har-
office and packing wastes generated at bor or transmit pathogenic organisms)
industrial facilities. of a disposable nature from the rooms
(h) Construction and demolition waste of patients who are suspected to have
means the waste building materials, or have been diagnosed as having a
packaging, and rubble resulting from communicable disease and must, there-
construction, remodeling, repair, and fore, be isolated as required by public
demolition operations on pavements, health agencies; (2) laboratory wastes,
houses, commercial buildings and other such as pathological specimens (e.g. all
structures. tissues, specimens of blood elements,
(i) Compartmentalized vehicle means a excreta, and secretions obtained from
collection vehicle which has two or patients or laboratory animals) and
more compartments for placement of disposable fomites attendant thereto;
solid wastes or recyclable materials. (3) surgical operating room pathologic
The compartments may be within the specimens and disposable fomites at-
main truck body or on the outside of tendant thereto and similar disposable
that body as in the form of metal materials from outpatient areas and
racks. emergency rooms.
(j) Corrugated container waste means (r) Institutional solid waste means
discarded corrugated boxes. solid wastes generated by educational,
(k) Corrugated box means a container health care, correctional and other in-
for goods which is composed of an inner stitutional facilities.
fluting of material (corrugating me- (s) Mining wastes means residues
dium) and one or two outer liners of which result from the extraction of raw
material (linerboard). materials from the earth.
(l) Federal facility means any build- (t) Post-consumer waste (PCW) means
ing, installation, structure, land, or a material or product that has served
public work owned by or leased to the its intended use and has been discarded
Federal Government. Ships at sea, air- for disposal or recovery after passing
craft in the air, land forces on maneu- through the hands of a final consumer.
377
§ 246.200 40 CFR Ch. I (7–1–21 Edition)
(u) Recoverable resources means mate- wastes; sludges; construction and dem-
rials that still have useful physical, olition wastes; and infectious wastes.
chemical, or biological properties after (cc) Source separation means the set-
serving their original purpose and can, ting aside of recyclable materials at
therefore, be reused or recycled for the their point of generation by the gener-
same or other purposes. ator.
(v) Recovery means the process of ob- (dd) Specification means a clear and
taining materials or energy resources accurate description of the technical
from solid waste. requirements for materials, products or
(w) Recycled material means a mate- services, identifying the minimum re-
rial that is used in place of a primary, quirements for quality and construc-
raw or virgin material in manufac- tion of materials and equipment nec-
turing a product. essary for an acceptable product. In
(x) Recycling means the process by general, specifications are in the form
which recovered materials are trans- of written descriptions, drawings,
formed into new products. prints, commercial designations, indus-
(y) Residential solid waste means the try standards, and other descriptive
wastes generated by the normal activi- references.
ties of households, including but not (ee) Stationary compactor means a
limited to, food wastes, rubbish, ashes,
powered machine which is designed to
and bulky wastes.
compact solid waste or recyclable ma-
(z) Separate collection means col-
terials, and which remains stationary
lecting recyclable materials which
when in operation.
have been separated at the point of
(ff) Storage means the interim con-
generation and keeping those mate-
rials separate from other collected tainment of solid waste after genera-
solid waste in separate compartments tion and prior to collection for ulti-
of a single collection vehicle or mate recovery or disposal.
through the use of separate collection (gg) Virgin material means a raw ma-
vehicles. terial used in manufacturing that has
(aa) Sludge means the accumulated been mined or harvested and has not as
semiliquid suspension of settled solids yet become a product.
deposited from wastewaters or other
fluids in tanks or basins. It does not in- Subpart B—Requirements and
clude solid or dissolved material in do- Recommended Procedures
mestic sewage or other significant pol-
lutants in water resources, such as silt, § 246.200 High-grade paper recovery.
dissolved material in irrigation return
flows or other common water pollut- § 246.200–1 Requirements.
ants. High-grade paper generated by office
(bb) Solid waste means garbage, facilities of over 100 office workers
refuse, sludge, and other discarded shall be separated at the source of gen-
solid materials, including solid waste eration, separately collected, and sold
materials resulting from industrial, for the purpose of recycling.
commercial, and agricultural oper-
ations, and from community activities, § 246.200–2 Recommended procedures:
but does not include solids or dissolved High-grade paper recovery from
materials in domestic sewage or other smaller offices.
significant pollutants in water re-
The recovery of high-grade paper
sources, such as silt, dissolved or sus-
generated by office facilities of less
pended solids in industrial wastewater
effluents, dissolved materials in irriga- than 100 office workers should be inves-
tion return flows or other common tigated in conformance with the fol-
water pollutants. Unless specifically lowing recommended procedures and
noted otherwise, the term ‘‘solid implemented where feasible.
waste’’ as used in these guidelines shall

not include mining, agricultural, and
industrial solid wastes; hazardous
378
§ 246.200–3 Recommended procedures: building. Nonrecyclable waste is placed

Market study. in desk-side wastebaskets.
An investigation of markets should (c) The recommended system is the
be made by the organization respon- desk-top system because it is designed
sible for the sale of recyclable mate- to maximize recovery of high value
rials in each Federal agency and should material in an economically feasible
include at a minimum: manner. While the two-wastebasket
(a) Identifying potential purchasers system and centralized container sys-
of the recovered paper through stand- tem have been implemented with suc-
ard market research techniques; cess in isolated instances, data indicate
that, on the whole, these systems have
(b) Directly contacting buyers, and
experienced high levels of contamina-
determining the buyers’ quality speci-
tion, low levels of participation, and
fications, the exact types of paper to be
low revenues. The desk-top system has
recycled, potential transportation
been designed to minimize these prob-
agreements and any minimum quan-
lems.
tity criteria; and
(c) Determining the price that the (d) The precise method of separation
buyer will pay for the recovered paper and collection used to implement the
and the willingness of the buyer to sign desk-top system will depend upon such
a contract for purchase of the paper at things as the physical layout of the in-
a guaranteed minimum price. dividual facility, the ease of collection,
and the projected cost effectiveness of
§ 246.200–4 Recommended procedures: using various methods. The rec-
Levels of separation. ommended desk-top system is carried
out in the following manner:
A two-level separation is rec-
(1) Workers are to deposit high-grade
ommended for most facilities. This sep-
paper into a desk-top tray or other
aration should consist of (a) high-grade
small desk-top holder to be supplied by
wastepaper and (b) all other waste. Fa-
the agency. This holder should be de-
cilities that produce large enough
signed in such a way as to prevent it
quantities of waste computer paper and
holding contaminants, such as food or
cards to make their separation into a
beverage containers.
separate category cost effective may
(2) At the office worker’s convenience
choose to implement three levels of
or when the tray is filled, the worker
separation: (1) Computer papers, (2)
carries the paper to a conveniently lo-
other high-grade papers, (3) all other
cated bulk container within the office
wastes.
area. This large container should be lo-
§ 246.200–5 Recommended procedures: cated in an area the worker frequents
Methods of separation and collec- in the normal course of business.
tion. (3) In locations where computer cards
(a) Systems designed to recover high and printouts are to be collected sepa-
grades of office paper at the source of rately, the receptacle for these wastes
generation, i.e., the desk, are the desk- should be near the computer terminal
top system, the two-wastebasket sys- or in some other logical, centrally lo-
tem, and the office centralized con- cated place.
tainer system. (4) Collection of the high-grade paper
(b) With the desk-top system, recy- from the bulk containers in the office
clable paper is placed by the generator area should be performed by the jani-
in a container on his desk, while other torial or general maintenance service.
waste is placed in a wastebasket. With The number of locations and the fre-
the two-wastebasket system, recycla- quency of collection of these con-
ble paper is placed by the generator in tainers will be determined by office
one desk-side wastebasket, and all size and maintenance staff capacity.
other waste is placed in another. In the (e) Mixed paper and some high-grade
centralized container system, large office papers have also been recovered
containers for the collection of for recycling by hand-picking in an in-

recyclables are placed in centralized lo- dividual building’s trash room or at a
cations within the office areas of the centralized facility serving several
379
§ 246.200–6 40 CFR Ch. I (7–1–21 Edition)
buildings. With these hand-picking system and evaluating its costs, every ef-
tems, recyclable waste is not separated fort should be made to use janitorial
at the source of generation, but is and waste collection resources effi-
mixed with other waste in the usual ciently. This cost analysis should en-
manner and removed to a centralized able the facility to determine the most
location where recyclable paper is cost effective method of implementing
picked out of the mixed waste by hand. the requirement of this part.
Facilities may choose to use this meth-
od of high-grade paper recovery if it is § 246.200–9 Recommended procedures:
shown by analysis to be economically Contracts.
preferable to source separation. Formal bids should be requested for
§ 246.200–6 Recommended procedures: purchase of the recovered materials,
Storage. such bids being solicited in conform-
ance with bidding procedures estab-
Among the alternatives for paper lished for the responsible agency. Con-
storage are on-site bailing, the use of tracts should include the buyer’s qual-
stationary compactors, or storage in
ity specifications, quantity and trans-
corrugated boxes or normal waste con-
portation agreements, a guarantee that
tainers. Stored paper should be pro-
the material will be accepted for one
tected from fire, inclement weather,
year or more, and a guaranteed min-
theft, and vandalism.
imum purchase price.
Transportation. § 246.200–10 Recommended proce-
dures: Public information and edu-
Transportation to market may be cation.
supplied by the facility, by a private
hauler, or by the purchaser. Collection A well-organized and well-executed
of the recyclable paper should be on a public information and education pro-
regular, established schedule. gram explaining the justification,
goals, methods and level of separation
§ 246.200–8 Recommended procedures: should be conducted to inform and mo-
Cost analysis. tivate office personnel and secure their
After potential markets have been lo- cooperation in separating their waste.
cated (but prior to initiation of formal This public information and education
bidding procedures), preliminary deter- program should precede the program
minations of various separation meth- and continue on a regular basis for its
ods, storage, and transportation costs duration.
have been made, and estimated ton-
nages of both recoverable high-grade § 246.201 Residential materials recov-
ery.
paper and residual solid waste have
been established, an analysis should be § 246.201–1 Requirement.
conducted which compares the costs of
the present waste collection and dis- Separation of used newspapers at the
posal system with the proposed seg- source of residential generation in con-
regated systems. At a minimum, the junction with separate collection shall
study should include all capital, oper- be carried out at all facilities in which
ating and overhead costs and take into more than 500 families reside, and the
account credits for revenue from paper newspapers shall be sold for the pur-
sales and savings from diverting recy- pose of recycling.
cled materials from disposal. Potential
costs to upgrade collection and dis- § 246.201–2 Recommended procedures:
posal practices to comply with EPA’s Newsprint recovery from smaller
residential facilities.
Guidelines for the Storage and Collec-
tion of Residential, Commercial and The recovery of newsprint generated
Institutional Solid Wastes (40 CFR part by residential facilities of less than 500
243) and Thermal Processing and Land families should be investigated in
Disposal Guidelines (40 CFR parts 240 conformance with the following recom-
and 241) should be included in the anal- mended procedures and implemented
ysis. In formulating a separation sys- where feasible.
380
§ 246.201–3 Recommended procedures: § 246.201–6 Recommended procedures:

Glass, can, and mixed paper separa- Transportation to market.
tion.
Transportation to market may be
In areas where markets are available, supplied by the facility or the commu-
it is recommended that glass, cans, and nity generating the waste, by a private
mixed paper be separated at the source hauler, or by the purchaser.
of generation and separately collected
for the purpose of recycling. § 246.201–7 Recommended procedures:
Cost analysis.
Market study. After potential markets have been lo-
cated (but prior to initiation of formal
An investigation of markets should bidding procedures), preliminary deter-
be made for each material by the orga- minations of various separation meth-
nization responsible for sale of recycla- ods, storage and transportation costs
ble materials in each agency and have been made, and estimated ton-
should include at a minimum: nages of both recoverable materials
(a) Identifying potential purchasers and residual solid waste have been es-
of the recovered material through tablished, an analysis should be con-
standard market research techniques. ducted which compares the costs of the
(b) Directly contacting buyers and present waste collection and disposal
determining the buyers’ quality speci- system with the proposed segregated
fications, potential transportation systems. At a minimum this study
agreements and any minimum quan- should include all capital, operating
tity criteria. and overhead costs and take into ac-
(c) Determining the prices that the count credits for revenue from paper
buyer will pay for the recovered mate- sales and savings from diverting recy-
rial and the willingness of the buyer to cled materials from disposal. Potential
sign a contract for the purchase of the costs to upgrade collection and dis-
material at guaranteed minimum posal practices to comply with EPA’s
prices. Guidelines for the Storage and Collec-
tion of Residential, Commercial and
§ 246.201–5 Recommended procedures: Institutional Solid Wastes (40 CFR part
Methods of separation and collec- 243) and Thermal Processing and Land
tion.
Disposal Guidelines (40 CFR parts 240
Following separation within the and 241) should be included in the anal-
home, any of the following methods of ysis. In formulating a separate collec-
collection may be used: tion system and evaluating its costs,
(a) Materials may be placed at the every effort should be made to use idle
curbside by the resident and may be equipment and underutilized collection
collected from each household using manpower to reduce separate collec-
separate trucks or compartmentalized tion costs. This cost analysis should
vehicles. enable the facility to determine the
(b) For multi-family dwellings, sepa- most cost effective method if imple-
rated materials may be placed in bulk menting the requirements of this part.
containers located outside of the build-
ing and collected by trucks dispatched § 246.201–8 Recommended procedures:
to collect recyclables. Contracts.
(c) Collection stations may be set up Formal bids should be requested for
at convenient locations to which resi- purchase of the recovered materials,
dents bring recyclables. These stations such bids being solicited in conform-
should provide separate bulk con- ance with bidding procedures estab-
tainers for each item to be recycled. lished for the responsible jurisdiction.
The size and type of container will de- Contracts should include the buyer’s
pend on the volume and type of mate- quality specifications, quantity and
rial collected, the method of transpor- transportation agreements, a guar-
tation to be used in hauling the mate- antee that the material will be accept-
rials to market and the frequency of ed for one year or more and a guaran-
removal. teed minimum purchase price.
381
§ 246.201–9 40 CFR Ch. I (7–1–21 Edition)
§ 246.201–9 Recommended procedures: § 246.202–4 Recommended procedures:

Public information and education. Methods of separation and storage.
A well organized and well executed The method selected will depend
public information and education pro- upon such variables as the physical
gram explaining the justification, layout of the individual generating fa-
goals, methods and level of separation cility, the rate at which the corrugated
should be conducted to inform and mo- accumulates, the storage capacity of
tivate householders and to secure their the facility, and the projected cost-ef-
cooperation in separating their waste. fectiveness of using the various meth-
This public information and education ods. All of the following suggested
program should precede the program modes of separation and storage pre-
and continue on a regular basis for its suppose that the corrugated boxes will
be accumulated at a central location in
duration.
the facility after their contents are re-
§ 246.202 Corrugated container recov- moved and that the boxes are flat-
ery. tened.
(a) Balers of various sizes: Cor-
§ 246.202–1 Requirement. rugated boxes are placed in balers and
compacted into bales. These bales may
Any commercial establishment gen-
be stored inside or outside of the facil-
erating 10 or more tons of waste cor-
ity. The bales should be protected from
rugated containers per month shall
fire, inclement weather, theft, and van-
separately collect and sell this mate- dalism.
rial for the purpose of recycling.
(b) Stationary compactors or bulk
§ 246.202–2 Recommended procedures: containers: Corrugated boxes are
Corrugated container recovery placed in a stationary compactor or
from smaller commercial facilities. bulk containers outside of the facility.
The containers should be protected
The recovery of corrugated con- from fire, inclement weather, theft and
tainers from commercial facilities gen- vandalism.
erating less than 10 tons per month
should be investigated in conformance § 246.202–5 Recommended procedures:
with the following recommended proce- Transportation.
dures and implemented where feasible. Transportation to market may be
supplied by either the facility, a pri-
§ 246.202–3 Recommended procedures: vate hauler or the purchaser. In facili-
Market study.
ties to which goods are delivered from
An investigation of markets should a central warehouse, corrugated may
be made by the organization respon- be backhauled by delivery trucks to
sible for sale of recyclable material in the central facility and baled there for
each Federal agency and should include delivery to a user.
at a minimum:
(a) Identifying potential purchasers § 246.202–6 Recommended procedures:
Cost analysis.
of the recovered corrugated through
standard market research techniques. After potential markets have been
(b) Directly contacting buyers and identified (but prior to initiation of
determining the buyers’ quality speci- formal bidding), preliminary deter-
fications, potential transportation minations of various separation meth-
agreements and any minimum quan- ods, storage and transportation costs
tity criteria. have been made, and estimated ton-
nages of both recoverable material and
(c) Determining the price that the
residual solid waste have been estab-
buyer will pay for the recovered cor-
lished, an analysis should be conducted
rugated and the willingness of the which compares the costs of the
buyer to sign a contract for purchase of present waste collection and disposal
the paper at a guaranteed minimum system with the proposed segregated

price. systems. At a minimum, the study
should include all capital, operating
382
and overhead costs and take into ac- Office of Solid Waste Management Programs.
count credits for revenue from paper Third report to Congress; resource recov-
sales and savings from diverting recy- ery and waste reduction. Environmental
Protection Publication SW–161. Wash-
cled materials from disposal. Potential
ington, U.S. Government Printing Office,
costs to upgrade collection and dis- 1975. 96 p.
posal practices to comply with EPA’s Paper Stock Conservation Committee.
Guidelines for the Storage and Collec- Wastepaper recycling. American Paper In-
tion of Residential, Commercial and stitute, Inc. Publication. New York, New
Institutional Solid Wastes (40 CFR part York. 12 p.
243) and Thermal Processing and Land SCS Engineers, Inc. Analysis of source sepa-
Disposal Guidelines (40 CFR parts 240 rate collection of recyclable solid waste
and 241) should be included in the anal- collection center studies. Environmental
Protection Publication SW–95c.2. U.S. En-
ysis. This cost analysis should enable vironmental Protection Agency, 1974. 70 p.
the facility to determine the most cost (Distributed by National Technical Infor-
effective method of implementing mation Service, Springfield, Virginia, as
these guidelines. PB–239 776.)
SCS Engineers, Inc. Analysis of source sepa-
§ 246.202–7 Recommended procedures: rate collection of recyclable solid waste;
Establishment of purchase contract. office buildings. U.S. Environmental Pro-
Formal bids should be requested for tection Agency, 1976. (To be distributed by
National Technical Information Service,
purchase of the recovered materials,
Springfield, Virginia.)
such bids being solicited in con- SCS Engineers, Inc. Analysis of source sepa-
formance with bidding procedures es- rate collection of recyclable solid waste;
tablished for the responsible agency. separate collection studies. Environmental
Contracts should include the buyer’s Protection Publication SW–95c.i. U.S. En-
quality specifications, transportation vironmental Protection Agency, 1974. 157 p.
agreements, a guarantee that the ma- (Distributed by National Technical Infor-
terial will be accepted for one year or mation Service, Springfield, Virginia, as
more and a guaranteed minimum pur- PB–239 775.)
Smith, F. L. An analysis of wastepaper ex-
chase price. ports. Washington, U.S. Environmental
Protection Publication SW–132, 1974. 17 p.
§ 246.203 Reevaluation.
APPENDIX TO PART 246—RECOMMENDED PART 247—COMPREHENSIVE PRO-
BIBLIOGRAPHY CUREMENT GUIDELINE FOR
Belknap, M. Paper recycling: a business per- PRODUCTS CONTAINING RE-
spective. Subcommittee on Solid Waste, COVERED MATERIALS
New York Chamber of Commerce Publica-
tion, September 1972. Subpart A—General
Dane, S. The national buyer’s guide to recy-
cled paper. Environmental Educators, Inc. Sec.
Publication. Washington, 1973. 208 p. 247.1 Purpose and scope.
Davis, R. H., and P. Hansen. A new look at 247.2 Applicability.
the economics of separate refuse collec- 247.3 Definitions.
tion. SCS Engineers, Inc. report. Long 247.4 Contracting officer requirements.
Beach, California, April 1974. 22 p. 247.5 Specifications.
Hansen, P. Residential paper recovery—a 247.6 Affirmative procurement programs.
municipal implementation guide. Environ- 247.7 Effective date.
mental Protection Publication SW–155.
Washington, U.S. Government Printing Of- Subpart B—Item Designations
fice, 1975. 26 p.
Hansen, P. Solid waste recycling projects—a 247.10 Paper and paper products.
national directory. Environmental Protec- 247.11 Vehicular products.
tion Publication SW–45. Washington, U.S. 247.12 Construction products.
Government Printing Office, 1973. 284 p. 247.13 Transportation products.
Lingle, S. A. Paper recycling in the United 247.14 Park and recreation products.
States. Washington, U.S. Environmental 247.15 Landscaping products.
Protection Publication, August 1974. 22 p. 247.16 Non-paper office products.
Lingle, S. A. Separating paper at the waste
247.17 Miscellaneous products.

source for recycling. Environmental Pro-
tection Publication SW–128. Washington, AUTHORITY: 42 U.S.C. 6912(a) and 6962; E.O.
U.S. Government Printing Office, 1974. 16 p. 13423, 72 FR 3919, 3 CFR, 1998 Comp., p. 210.
383
§ 247.1 40 CFR Ch. I (7–1–21 Edition)
SOURCE: 60 FR 21381, May 1, 1995, unless (3) The $10,000 threshold applies to
otherwise noted. procuring agencies as a whole rather
than to agency subgroups such as re-
Subpart A—General gional offices or subagencies of a larger
department or agency.
§ 247.1 Purpose and scope. (b) The term procurement actions in-
(a) The purpose of this guideline is to cludes:
assist procuring agencies in complying (1) Purchases made directly by a pro-
with the requirements of section 6002 of curing agency and purchases made di-
the Solid Waste Disposal Act, as rectly by any person (e.g., a con-
amended by the Resource Conservation tractor) in support of work being per-
and Recovery Act of 1976 (RCRA), as formed for a procuring agency, and
amended, 42 U.S.C. 6962, and Executive (2) Any purchases of designated items
Order 12873, as they apply to the pro- made ‘‘indirectly’’ by a procuring agen-
curement of the items designated in cy, as in the case of procurements re-
subpart B of this part. sulting from grants, loans, funds, and
(b) This guideline designates items similar forms of disbursements of mon-
that are or can be made with recovered ies.
materials and whose procurement by (c)(1) This guideline does not apply to
procuring agencies will carry out the purchases of designated items which
objectives of section 6002 of RCRA. are unrelated to or incidental to Fed-
EPA’s recommended practices with re- eral funding, i.e., not the direct result
spect to the procurement of specific of a contract or agreement with, or a
designated items are found in the com- grant, loan, or funds disbursement to, a
panion Recovered Materials Advisory procuring agency.
Notice(s). (2) This guideline also does not apply
(c) EPA believes that adherence to to purchases made by private party re-
the recommendations in the Recovered cipients (e.g., individuals, non-profit
Materials Advisory Notice(s) con- organizations) of Federal funds pursu-
stitutes compliance with RCRA section ant to grants, loans, cooperative agree-
6002. However, procuring agencies may ments, and other funds disbursements.
adopt other types of procurement pro- (d) RCRA section 6002(c)(1) requires
grams consistent with RCRA section procuring agencies to procure des-
6002. ignated items composed of the highest
§ 247.2 Applicability. percentage of recovered materials prac-
ticable, consistent with maintaining a
(a)(1) This guideline applies to all satisfactory level of competition, con-
procuring agencies and to all procure- sidering such guidelines. Procuring
ment actions involving items des- agencies may decide not to procure
ignated by EPA in this part, where the such items if they are not reasonably
procuring agency purchases $10,000 or available in a reasonable period of
more worth of one of these items dur- time; fail to meet reasonable perform-
ing the course of a fiscal year, or where ance standards; or are only available at
the cost of such items or of function- an unreasonable price.
ally equivalent items purchased during
the preceding fiscal year was $10,000 or [60 FR 21381, May 1, 1995, as amended at 62
more. FR 60973, Nov. 13, 1997]
(2) This guideline applies to Federal
agencies, to State and local agencies
using appropriated Federal funds to As used in this procurement guide-
procure designated items, and to per- line and the related Recovered Mate-
sons contracting with any such agen- rials Advisory Notice(s):
cies with respect to work performed Act or RCRA means the Solid Waste
under such contracts. Federal pro- Disposal Act, as amended by the Re-
curing agencies should note that the source Conservation and Recovery Act,
requirements of RCRA section 6002 as amended, 42 U.S.C 6901 et seq;
apply to them whether or not appro- Awards and plaques refers to free-
priated Federal funds are used for pro- standing statues and boardlike prod-
curement of designated items. ucts generally used as wall-hangings.
384
Bike racks are free-standing or an- or remediate pollutants in soil, air, and
chored units that provide a method for storm water run-off.
cyclists to secure their bicycles safely. Delineator means a highly visible
Blanket insulation means relatively pavement marker that can be posi-
flat and flexible insulation in coherent tioned to direct traffic or define bound-
sheet form, furnished in units of sub- aries;
stantial area. Batt insulation is in- Engine lubricating oils means petro-
cluded in this term; leum-based oils used for reducing fric-
Blasting grit is a type of industrial ab- tion in engine parts;
rasive used to shape, cut, sharpen, pol- Federal agency means any depart-
ish, or finish surfaces and materials. ment, agency, or other instrumentality
Board insulation means semi-rigid in- of the Federal government; any inde-
sulation preformed into rectangular pendent agency or establishment of the
units having a degree of suppleness, Federal government including any gov-
particularly related to their geometri- ernment corporation; and the Govern-
cal dimensions; ment Printing Office;
Building insulation means a material, Fertilizer made from recovered organic
primarily designed to resist heat flow, materials is a single or blended sub-
which is installed between the condi- stance, made from organic matter such
tioned volume of a building and adja- as plant and animal by-products, ma-
cent unconditioned volumes or the out- nure-based or biosolid products, and
side. This term includes but is not lim- rock and mineral powders, that con-
ited to insulation products such as tains one or more recognized plant nu-
blanket, board, spray-in-place, and trient(s) and is used primarily for its
loose-fill that are used as ceiling, floor, plant nutrient content and is designed
foundation, and wall insulation; for use or claimed to have value in pro-
Carpet cushion, also known as carpet moting plant growth.
underlay, is padding placed beneath Fiberglass insulation means insulation
carpet to reduce carpet wear caused by which is composed principally of glass
foot traffic or furniture indentation, fibers, with or without binders;
enhance comfort, and prolong appear- Flexible delineator means a highly
ance. visible marker that can be positioned
Cellulose fiber loose-fill means a basic to direct traffic or define boundaries
material of recycled wood-based cellu- and that will flex if struck by a vehicle
losic fiber made from selected paper, to prevent damage to the vehicle or the
paperboard stock, or ground wood delineator;
stock, excluding contaminated mate- Flowable fill is a low strength mate-
rials which may reasonably be expected rial that is mixed to a wet, flowable
to be retained in the finished product, slurry and used as an economical fill or
with suitable chemicals introduced to backfill material in place of concrete,
provide properties such as flame resist- compacted soils, or sand.
ance, processing and handling charac- Foam-in-place insulation is rigid cel-
teristics. The basic cellulosic material lular foam produced by catalyzed
may be processed into a form suitable chemical reactions that hardens at the
for installation by pneumatic or pour- site of the work. The term includes
ing methods; spray-applied and injected applications
Cenospheres, a naturally-occurring such as spray-in-place foam and pour-
waste component of coal fly ash, are in-place;
very small, inert, lightweight, hollow, Garden hose means a flexible tubing
‘‘glass’’ spheres composed of silica and that conducts water to a specific loca-
alumina and filled with air or other tion;
gases. Gear oils means petroleum-based oils
Channelizers means highly visible used for lubricating machinery gears;
barrels or drums that can be positioned Hydraulic fluids means petroleum-
to direct traffic through detours; based hydraulic fluids;
Compost is a thermophilic converted Hydraulic mulch means a mulch that
product with high humus content. is a cellulose-based (paper or wood)

Compost can be used as a soil amend- protective covering that is mixed with
ment and can also be used to prevent water and applied through mechanical
385
§ 247.3 40 CFR Ch. I (7–1–21 Edition)
spraying in order to aid the germina- and to channel cable and conduit in
tion of seeds and to prevent soil ero- various applications.
sion; Office furniture is furniture typically
Hydroseeding means the process of used in offices, including seating,
spraying seeds mixed with water desks, storage units, file cabinets, ta-
through a mechanical sprayer bles, and systems furniture (or ‘‘cubi-
(hydroseeder). Hydraulic mulch, fer- cles’’).
tilizer, a tacking agent, or a wetting Pallet means a portable platform for
agent can also be added to the water/ storing or moving cargo or freight;
seed mix for enhanced performance; Paper means one of two broad sub-
Industrial drums are cylindrical con- divisions of paper products, the other
tainers used for shipping and storing being paperboard. Paper is generally
liquid or solid materials. lighter in basis weight, thinner, and
Laminated paperboard means board more flexible than paperboard. Sheets
made from one or more plies of kraft 0.012 inch or less in thickness are gen-
paper bonded together, with or without erally classified as paper. Its primary
facers, that is used for decorative, uses are for printing, writing, wrap-
structural, or insulating purposes; ping, and sanitary purposes. However,
Latex paint means a water-based dec- in this guideline, the term paper is also
orative or protective covering having a used as a generic term that includes
latex binder; both paper and paperboard.
Lawn edging means a barrier used be- Paper product means any item manu-
tween lawns and landscaped areas or factured from paper or paperboard. The
garden beds to prevent grass roots or term paper product is used in this
weeds from spreading to the landscaped guideline to distinguish such items as
areas; boxes, doilies, and paper towels from
Loose-fill insulation means insulation printing and writing papers.
in granular, nodular, fibrous, powdery, Park benches and picnic tables are rec-
or similar form, designed to be in- reational furniture found in parks, out-
stalled by pouring, blowing or hand door recreational facilities, and the
placement; grounds of office buildings and other
Manual-grade strapping refers to facilities.
straps of material used with transport Parking stop means a barrier used to
packaging to hold products in place on mark parking spaces and keep parked
pallets or in other methods of commer- vehicles from rolling beyond a des-
cial, bulk shipment. Strapping can also ignated parking area;
prevent tampering and pilferage during Perlite composite board means insula-
shipping. tion board composed of expanded per-
Mats are temporary or lite and fibers formed into rigid, flat,
semipermanent protective floor cov- rectangular units with a suitable sizing
erings used for numerous applications, material incorporated in the product.
including home and office carpet pro- It may have on one or both surfaces a
tection, car and truck floor board pro- facing or coating to prevent excessive
tection, traction on slippery surfaces, hot bitumen strike-in during roofing
cushion from floor hardness, and reduc- installation;
tion of injury risk during athletic Person means an individual, trust,
events. firm, joint stock company, corporation
Mineral fiber insulation means insula- (including a government corporation),
tion (rock wool or fiberglass) which is partnership, association, Federal agen-
composed principally of fibers manu- cy, State, municipality, commission,
factured from rock, slag or glass, with political subdivision of a State, or any
or without binders; interstate body;
Modular threshold ramps are ramps Phenolic insulation means insulation
used to modify existing door thresholds made with phenolic plastics which are
and other small rises to remove access plastics based on resins made by the
barriers created by differentials in condensation of phenols, such as phe-
landing levels. nol or cresol, with aldehydes;

Nonpressure pipe is pipe used to drain Plastic fencing means a barrier with
waste and wastewater, to vent gases, an open-weave pattern that can be used
386
to control drifting snow or sand by re- Practicable means capable of being

stricting the force of wind and to pro- used consistent with: Performance in
vide a warning or barrier in construc- accordance with applicable specifica-
tion and other areas; tions, availability at a reasonable
Plastic lumber landscaping timbers and price, availability within a reasonable
posts are used to enhance the appear- period of time, and maintenance of a
ance of and control erosion in parks, satisfactory level of competition;
highways, housing developments, Printer ribbon means a nylon fabric
urban plazas, zoos, and the exteriors of designed to hold ink and used in dot
office buildings, military facilities, matrix and other types of impact print-
schools, and other public use areas. ers;
Playground equipment includes many Procurement item means any device,
components, like slides, merry-go- good, substance, material, product, or
rounds, hand rails, etc., and is found in other item, whether real or personal
parks, schools, child care facilities, in- property, which is the subject of any
stitutions, multiple family dwellings, purchase, barter, or other exchange
restaurants, resort and recreational de- made to procure such item;
velopments, and other public use areas. Procuring agency means any Federal
Polyisocyanurate insulation means in- agency, or any State agency or agency
sulation produced principally by the of a political subdivision of a State,
which is using appropriated Federal
polymerization of polymeric
funds for such procurement, or any per-
polyisocyanates, usually in the pres-
son contracting with any such agency
ence of polyhydroxyl compounds with
with respect to work performed under
the addition of cell stabilizers, blowing
such contract;
agents, and appropriate catalyst to
Purchasing means the act of and the
produce a polyisocyanurate chemical
function of responsibility for the acqui-
structure;
sition of equipment, materials, sup-
Polystyrene insulation means an or-
plies, and services, including: Buying,
ganic foam composed principally of po-
determining the need, selecting the
lymerized styrene resin processed to
supplier, arriving at a fair and reason-
form a homogenous rigid mass of cells;
able price and terms and conditions,
Polyurethane insulation means insula- preparing the contract or purchase
tion composed principally of the cata- order, and follow-up;
lyzed reaction product of Railroad grade crossing surfaces are
polyisocyanates and polyhydroxyl com- materials placed between railroad
pounds, processed usually with a blow- tracks, and between the track and the
ing agent to form a rigid foam having road at highway and street railroad
a predominantly closed cell structure; crossings, to enhance automobile and
Postconsumer material means a mate- pedestrian safety.
rial or finished product that has served Rebuilt vehicular parts are vehicular
its intended use and has been diverted parts that have been remanufactured,
or recovered from waste destined for reusing parts in their original form.
disposal, having completed its life as a Recovered materials means waste ma-
consumer item. Postconsumer material is terials and byproducts which have been
a part of the broader category of recov- recovered or diverted from solid waste,
ered materials. but such term does not include those
Postconsumer recovered paper means: materials and byproducts generated
(1) Paper, paperboard and fibrous from, and commonly reused within, an
wastes from retail stores, office build- original manufacturing process;
ings, homes and so forth, after they Recovered materials, for purposes of
have passed through their end-usage as purchasing paper and paper products,
a consumer item including: Used cor- means waste material and byproducts
rugated boxes; old newspapers; old that have been recovered or diverted
magazines; mixed waste paper; tab- from solid waste, but such term does
ulating cards and used cordage; and not include those materials and by-
(2) All paper, paperboard and fibrous products generated from, and com-
wastes that enter and are collected monly reused within, an original man-
from municipal solid waste; ufacturing process. In the case of paper
387
§ 247.3 40 CFR Ch. I (7–1–21 Edition)
and paper products, the term recovered Rock wool insulation means insulation
materials includes: which is composed principally from fi-
(1) Postconsumer materials such as— bers manufactured from slag or natural
(i) Paper, paperboard, and fibrous rock, with or without binders;
wastes from retail stores, office build- Roofing materials are materials used
ings, homes, and so forth, after they to construct a protective cover over a
have passed through their end-usage as structure to shield its interior from the
a consumer item, including: Used cor- natural elements.
rugated boxes; old newspapers; old Shower divider/partition means a
magazines; mixed waste paper; tab- water-proof barrier used to provide pri-
ulating cards; and used cordage; and vacy in public shower facilities;
(ii) All paper, paperboard, and fibrous Signage (including sign posts and sup-
wastes that enter and are collected ports) is used for identification and di-
from municipal solid waste, and rectional purposes for public roads and
(2) Manufacturing, forest residues, highways, and inside and outside office
and other wastes such as— buildings, museums, parks, and other
(i) Dry paper and paperboard waste public places.
generated after completion of the pa- Silica fume is a waste byproduct of
permaking process (that is, those man- alloyed metal production.
ufacturing operations up to and includ- Soaker hose means a perforated flexi-
ing the cutting and trimming of the ble tubing that is used to deliver gentle
paper machine reel in smaller rolls of irrigation to plants;
rough sheets) including: Envelope Sorbents (i.e., absorbents and adsorb-
cuttings, bindery trimmings, and other ents) are materials used to retain liq-
paper and paperboard waste, resulting uids and gases in a diverse number of
from printing, cutting, forming, and environmental, industrial, agricul-
other converting operations; bag, box, tural, medical, and scientific applica-
and carton manufacturing wastes; and tions. Absorbents incorporate a sub-
butt rolls, mill wrappers, and rejected stance while adsorbents gather sub-
unused stock; and stances on their surfaces.
(ii) Finished paper and paperboard Specification means a description of
from obsolete inventories of paper and the technical requirements for a mate-
paperboard manufacturers, merchants, rial, product, or service that includes
wholesalers, dealers, printers, con- the criteria for determining whether
verters, or others; these requirements are met. In general,
(iii) Fibrous byproducts of har- specifications are in the form of writ-
vesting, manufacturing, extractive, or ten commercial designations, industry
wood-cutting processes, flax, straw, standards, and other descriptive ref-
linters, bagasse, slash, and other forest erences;
residues; Spray-in-place insulation means insu-
(iv) Wastes generated by the conver- lation material that is sprayed onto a
sion of goods made from fibrous mate- surface or into cavities and includes
rial (that is, waste rope from cordage cellulose fiber spray-on as well as plas-
manufacture, textile mill waste, and tic rigid foam products;
cuttings); and Spray-in-place foam is rigid cellular
(v) Fibers recovered from waste polyurethane or polyisocyanurate foam
water which otherwise would enter the produced by catalyzed chemical reac-
waste stream. tions that hardens at the site of the
Re-refined oils means used oils from work. The term includes spray-applied
which the physical and chemical con- and injected applications;
taminants acquired through previous State means any of the several states,
use have been removed through a refin- the District of Columbia, the Common-
ing process; wealth of Puerto Rico, the Virgin Is-
Restroom divider/partition means a bar- lands, Guam, American Samoa, and the
rier used to provide privacy in public Commonwealth of the Northern Mar-
restroom facilities; iana Islands;
Retread tire means a worn auto- Structural fiberboard means a fibrous-

mobile, truck, or other motor vehicle felted, homogenous panel made from
tire whose tread has been replaced; lignocellulosic fibers (usually wood,
388
cane, or paper) and having a density of § 247.6 Affirmative procurement pro-

less than 31 lbs/ft3 but more than 10 lbs/ grams.
ft3. It is characterized by an integral RCRA section 6002(i) provides that
bond which is produced by interfelting each procuring agency which purchases
of the fibers, but which has not been items designated by EPA must estab-
consolidated under heat or pressure as lish an affirmative procurement pro-
a separate stage of manufacture; gram, containing the four elements
Tire means the following types of listed below, for procuring such items
tires: Passenger car tires, light- and containing recovered materials to the
heavy-duty truck tires, high-speed in- maximum extent practicable:
dustrial tires, bus tires, and special (a) Preference program for pur-
service tires (including military, agri- chasing the designated items;
cultural, off-the-road, and slow-speed (b) Promotion program;
industrial); (c) Procedures for obtaining esti-
mates and certifications of recovered
[60 FR 21381, May 1, 1995, as amended at 62 materials content and for verifying the
FR 60973, Nov. 13, 1997; 65 FR 3080, Jan. 19,
estimates and certifications; and
2000; 69 FR 24038, Apr. 30, 2004; 72 FR 52488,
Sept. 14, 2007]
(d) Annual review and monitoring of
the effectiveness of the program.
§ 247.4 Contracting officer require-
ments. § 247.7 Effective date.
Within one year after the effective Within one year after the date of
publication of any item designation,
date of each item designation, con-
procuring agencies which purchase
tracting officers shall require that ven-
that designated item must comply with
dors: the following requirements of RCRA:
(a) Certify that the percentage of re- affirmative procurement of the des-
covered materials to be used in the per- ignated item (6002(c)(1) and (i)), speci-
formance of the contract will be at fications revision (6002(d)(2)), vendor
least the amount required by applica- certification and estimation of recov-
ble specifications or other contractual ered materials content of the item
requirements, and (6002(c)(3) and (i)(2)(C)), and
(b) Estimate the percentage of total verification of vendor estimates and
material utilized for the performance certifications (6002(i)(2)C)).
of the contract which is recovered ma-
terials. Subpart B—Item Designations
§ 247.5 Specifications. § 247.10 Paper and paper products.
(a) RCRA section 6002(d)(1) required Paper and paper products, excluding
Federal agencies that have the respon- building and construction paper grades.
sibility for drafting or reviewing speci-
fications for procurement items pro- § 247.11 Vehicular products.
cured by Federal agencies to revise (a) Lubricating oils containing re-re-
their specifications by May 8, 1986, to fined oil, including engine lubricating
eliminate any exclusion of recovered oils, hydraulic fluids, and gear oils, ex-
materials and any requirement that cluding marine and aviation oils.
items be manufactured from virgin ma- (b) Tires, excluding airplane tires.
terials. (c) Reclaimed engine coolants, ex-
(b) RCRA section 6002(d)(2) requires cluding coolants used in non-vehicular
that within one year after the publica- applications.
tion date of each item designation by (d) Rebuilt vehicular parts.
the EPA, each procuring agency must [60 FR 21381, May 1, 1995, as amended at 69
assure that its specifications for these FR 24038, Apr. 30, 2004]
items require the use of recovered ma-
terials to the maximum extent possible § 247.12 Construction products.

without jeopardizing the intended end (a) Building insulation products, in-
use of these items. cluding the following items:
389
§ 247.13 40 CFR Ch. I (7–1–21 Edition)
(1) Loose-fill insulation, including (i) Flowable fill containing coal fly
but not limited to cellulose fiber, min- ash and/or ferrous foundry sands.
eral fibers (fiberglass and rock wool), (j) Railroad grade crossing surfaces
vermiculite, and perlite; made from cement and concrete con-
(2) Blanket and batt insulation, in- taining fly ash, recovered rubber, re-
cluding but not limited to mineral fi- covered steel, recovered wood, or re-
bers (fiberglass and rock wool); covered plastic.
(3) Board (sheathing, roof decking, (k) Modular threshold ramps con-
wall panel) insulation, including but taining recovered steel, rubber, or alu-
not limited to structural fiberboard minum.
and laminated paperboard products, (l) Nonpressure pipe containing re-
perlite composite board, polyurethane, covered steel, plastic, or cement.
polyisocyanurate, polystyrene, (m) Roofing materials containing re-
phenolics, and composites; and covered steel, aluminum, fiber, rubber,
(4) Spray-in-place insulation, includ- plastic or plastic composites, or ce-
ing but not limited to foam-in-place ment.
polyurethane and polyisocyanurate, [60 FR 21381, May 1, 1995, as amended at 62
and spray-on cellulose. FR 60974, Nov. 13, 1997; 65 FR 3081, Jan. 19,
(b) Structural fiberboard and lami- 2000; 69 FR 24038, Apr. 30, 2004]
nated paperboard products for applica-
tions other than building insulation, § 247.13 Transportation products.
including building board, sheathing, (a) Traffic barricades and traffic
shingle backer, sound deadening board, cones used in controlling or restricting
roof insulating board, insulating wall- vehicular traffic.
board, acoustical and non-acoustical (b) Parking stops made from concrete
ceiling tile, acoustical and non-acous- or containing recovered plastic or rub-
tical lay-in panels, floor ber.
underlayments, and roof overlay (c) Channelizers containing recovered
(coverboard). plastic or rubber.
(c) Cement and concrete, including (d) Delineators containing recovered
concrete products such as pipe and plastic, rubber, or steel.
block containing: (e) Flexible delineators containing
(1) Coal fly ash; recovered plastic.
(2) Ground granulated blast furnace
slag (GGBF); [60 FR 21381, May 1, 1995, as amended at 62
FR 60974, Nov. 13, 1997]
(3) Cenospheres; or
(4) Silica fume from silicon and § 247.14 Park and recreation products.
ferrosilicon metal production.
(d) Carpet made from polyester fiber (a) Playground surfaces and running
made from recovered materials for use tracks containing recovered rubber or
in moderate-wear applications such as plastic.
single-family housing and similar wear (b) Plastic fencing containing recov-
applications. ered plastic for use in controlling snow
(e) Floor tiles and patio blocks con- or sand drifting and as a warning/safe-
taining recovered rubber or plastic. ty barrier in construction or other ap-
(f) Shower and restroom dividers/par- plications.
titions containing recovered plastic or (c) Park benches and picnic tables
steel. containing recovered steel, aluminum,
(g)(1) Consolidated latex paint used plastic, or concrete.
for covering graffiti; and (d) Playground equipment containing
(2) Reprocessed latex paint used for recovered plastic, steel, or aluminum.
interior and exterior architectural ap- [60 FR 21381, May 1, 1995, as amended at 62
plications such as wallboard, ceilings, FR 60974, Nov. 13, 1997; 65 FR 3081, Jan. 19,
and trim; gutter boards; and concrete, 2000]
stucco, masonry, wood, and metal sur-
faces. § 247.15 Landscaping products.
(h) Carpet cushion made from bonded (a) Hydraulic mulch products con-
polyurethane, jute, synthetic fibers, or taining recovered paper or recovered
rubber containing recovered materials. wood used for hydroseeding and as an
390
over-spray for straw mulch in land- (f)(1) Non-road signs containing re-
scaping, erosion control, and soil rec- covered plastic or aluminum and road
lamation. signs containing recovered aluminum.
(b) Compost made from recovered or- (2) Sign supports and posts con-
ganic materials. taining recovered plastic or steel.
(c) Garden and soaker hoses con- (g) Manual-grade strapping con-
taining recovered plastic or rubber. taining recovered steel or plastic.
(d) Lawn and garden edging con- (h) Bike racks containing recovered
taining recovered plastic or rubber. steel or plastic.
(e) Plastic lumber landscaping tim- (i) Blasting grit containing recovered
bers and posts containing recovered
steel, coal and metal slag, bottom ash,
materials.
glass, plastic, fused alumina oxide, or
(f) Fertilizer made from recovered or-
walnut shells.
ganic materials.
[62 FR 60974, Nov. 13, 1997, as amended at 65
[60 FR 21381, May 1, 1995, as amended at 62
FR 60974, Nov. 13, 1997; 65 FR 3081, Jan. 19, FR 3081, Jan. 19, 2000; 69 FR 24038, Apr. 30,
2000; 72 FR 52488, Sept. 14, 2007] 2004]
§ 247.16 Non-paper office products. PART 254—PRIOR NOTICE OF

(a) Office recycling containers and of- CITIZEN SUITS
fice waste receptacles.
(b) Plastic desktop accessories. Sec.
(c) Toner cartridges. 254.1 Purpose.
(d) Plastic-covered binders con- 254.2 Service of notice.
taining recovered plastic; chipboard 254.3 Contents of notice.
and pressboard binders containing re- AUTHORITY: Sec. 7002, Pub. L. 94–580, 90
covered paper; and solid plastic binders Stat. 2825 (42 U.S.C. 6972).
containing recovered plastic.
(e) Plastic trash bags. SOURCE: 42 FR 56114, Oct. 21, 1977, unless
(f) Printer ribbons. otherwise noted.
(g) Plastic envelopes.
§ 254.1 Purpose.
(h) Plastic clipboards containing re-
covered plastic. Section 7002 of the Solid Waste Dis-
(i) Plastic file folders containing re- posal Act, as amended by the Resource
covered plastic. Conservation and Recovery Act of 1976,
(j) Plastic clip portfolios containing authorizes suit by any person to en-
recovered plastic. force the Act. These suits may be
(k) Plastic presentation folders con- brought where there is alleged to be a
taining recovered plastic. violation by any person (including (a)
(1) Office furniture containing recov- the United States, and (b) any other
ered steel, aluminum, wood, agricul- governmental instrumentality or agen-
tural fiber, or plastic. cy, to the extent permitted by the elev-
[60 FR 21381, May 1, 1995, as amended at 62 enth amendment to the Constitution)
FR 60974, Nov. 13, 1997; 65 FR 3081, Jan. 19, of any permit, standard, regulation,
2000; 69 FR 24038, Apr. 30, 2004] condition, requirement, or order which
has become effective under the Act, or
§ 247.17 Miscellaneous products. a failure of the Administrator to per-
(a) Pallets containing recovered form any act or duty under the Act,
wood, plastic, or paperboard. which is not discretionary with the Ad-
(b) Sorbents containing recovered ministrator. These actions are to be
materials for use in oil and solvent filed in accordance with the rules of
clean-ups and as animal bedding. the district court in which the action
(c) Industrial drums containing re- is instituted. The purpose of this part
covered steel, plastic, or paper. is to prescribe procedures governing
(d) Awards and plaques containing re- the notice requirements of subsections
covered glass, wood, paper, or plastic. (b) and (c) of section 7002 as a pre-
(e) Mats containing recovered rubber requisite to the commencement of such
and/or plastic. actions.
391
§ 254.2 40 CFR Ch. I (7–1–21 Edition)
§ 254.2 Service of notice. ministrative officer of the solid waste

(a) Notice of intent to file suit under management agency for the State in
subsection 7002(a)(1) of the Act shall be which the violation is alleged to have
served upon an alleged violator of any occurred.
permit, standard, regulation, condi- (b) Service of notice of intent to file
tion, requirement, or order which has suit under subsection 7002(a)(2) of the
become effective under this Act in the Act shall be accomplished by reg-
following manner: istered mail, return receipt requested,
(1) If the alleged violator is a private addressed to, or by personal service
individual or corporation, service of upon, the Administrator, Environ-
notice shall be accomplished by reg- mental Protection Agency, Wash-
istered mail, return receipt requested, ington, DC 20460. A copy of the notice
addressed to, or by personal service shall be mailed to the Attorney Gen-
upon, the owner or site manager of the eral of the United States.
building, plant, installation, or facility (c) Notice given in accordance with
alleged to be in violation. A copy of the the provisions of this part shall be con-
notice shall be mailed to the Adminis- sidered to have been served on the date
trator of the Environmental Protection of receipt. If service was acomplished
Agency, the Regional Administrator of by mail, the date of receipt will be con-
the Environmental Protection Agency sidered to be the date noted on the re-
for the region in which the violation is turn receipt card.
alleged to have occurred, and the chief
administrative officer of the solid § 254.3 Contents of notice.
waste management agency for the
(a) Violation of permit, standard, regu-
State in which the violation is alleged
lation, condition, requirement, or order.
to have occurred. If the alleged viola-
Notice regarding an alleged violation
tor is a corporation, a copy of the no-
tice shall also be mailed to the reg- of a permit, standard, regulation, con-
istered agent, if any, of that corpora- dition, requirement, or order which has
tion in the State in which such viola- become effective under this Act shall
tion is alleged to have occurred. include sufficient information to per-
(2) If the alleged violator is a State mit the recipient to identify the spe-
or local agency, service of notice shall cific permit, standard, regulation, con-
be accomplished by registered mail, re- dition, requirement, or order which has
turn receipt requested, addressed to, or allegedly been violated, the activity al-
by personal service upon, the head of leged to constitute a violation, the per-
that agency. A copy of the notice shall son or persons responsible for the al-
be mailed to the chief administrator of leged violation, the date or dates of the
the solid waste management agency for violation, and the full name, address,
the State in which the violation is al- and telephone number of the person
leged to have occurred, the Adminis- giving notice.
trator of the Environmental Protection (b) Failure to act. Notice regarding an
Agency, and the Regional Adminis- alleged failure of the Administrator to
trator of the Environmental Protection perform an act or duty which is not
Agency for the region in which the vio- discretionary under the Act shall iden-
lation is alleged to have occurred. tify the provisions of the Act which re-
(3) If the alleged violator is a Federal quire such act or create such duty,
agency, service of notice shall be ac- shall describe with reasonable speci-
complished by registered mail, return ficity the action taken or not taken by
receipt requested, addressed to, or by the Administrator which is claimed to
personal service upon, the head of the constitute a failure to perform the act
agency. A copy of the notice shall be or duty, and shall state the full name,
mailed to the Administrator of the En- address, and telephone number of the
vironmental Protection Agency, the person giving the notice.
Regional Administrator of the Envi- (c) Identification of counsel. The no-
ronmental Protection Agency for the tice shall state the name, address, and
region in which the violation is alleged telephone number of the legal counsel,
to have occurred, the Attorney General if any, representing the person giving
of the United States, and the chief ad- the notice.
392
PART 255—IDENTIFICATION OF RE- guide the identification of which func-

GIONS AND AGENCIES FOR tions will be carried out by which agen-
SOLID WASTE MANAGEMENT cies pursuant to section 4006 of the Act.
(b) The purposes of these guidelines
Subpart A—General Provisions are to (1) provide useful criteria for se-
lecting the regions and agencies to be
Sec. identified pursuant to section 4006 of
255.1 Scope and purpose.
255.2 Definitions. the Act and (2) provide guidance for
conducting the process which will re-
Subpart B—Criteria for Identifying Regions sult in formal identification of those
and Agencies regions and agencies.
255.10 Criteria for identifying regions.
(c) Identifications made pursuant to
255.11 Criteria for identifying agencies. these guidelines should be consistent
with State solid waste management
Subpart C—Procedures for Identifying plans and strategies. A State strategy
Regions and Agencies establishes: Goals for prevention of ad-
255.20 Preliminary identification of regions.
verse effects on the environment re-
255.21 Local consultation on boundaries. sulting from improper solid waste dis-
255.22 Establishing regional boundaries. posal including protection of surface
255.23 Joint identification of agencies. and ground water quality, air quality
255.24 Procedure for identifying interstate and the land; priorities among waste
regions.
types; priorities among disposal prac-
255.25 Public participation.
tices; and the roles of existing agencies
Subpart D—Responsibilities of Identified with responsibilities in solid waste
Agencies and Relationship to Other management. The identification proc-
Programs ess should cover all waste types (resi-
dential and commercial solid waste,
255.30 Responsibilities established.
255.31 Integration with other acts. hazardous wastes, industrial sludges
255.32 Coordination with other programs. and pretreatment residues, municipal
255.33 Inclusion of Federal facilities and Na- sewage sludge, air pollution control
tive American Reservations. residue, septage, mining and agricul-
tural waste, other industrial waste,
Subpart E—Submission and Revision of and solid waste from community ac-
Identifications
tivities), all disposal practices (im-
255.40 Notification of status. poundments, pits, ponds, lagoons, land-
255.41 Procedure for revision. fills, dumps, land-spreading, and indus-
AUTHORITY: Sec. 2002(a)(1), Pub. L. 94–580, trial leaching fields) and all techno-
90 Stat. 2795 (42 U.S.C. 6912(a)(1)). Also issued logical approaches (conservation, re-
under sec. 4006(b), Pub. L. 94–580, 90 Stat. 2795 covery, incineration, disposal).
(42 U.S.C. 6946(b)).
(Also sec. 4002(a), Pub. L. 94–580, 90 Stat. 2795
SOURCE: 42 FR 24927, May 16, 1977, unless
(42 U.S.C. 6942))
otherwise noted.
The Act contains an extensive list of
§ 255.1 Scope and purpose. definitions in section 1004 which are ap-
(a) These guidelines are applicable to plicable here. There are further defini-
policies, procedures, and criteria for tions of terms in 40 CFR part 29 of this
the identification of those areas which chapter which apply unless the context
have common solid waste management herein requires otherwise.
problems and which are appropriate [42 FR 24927, May 16, 1977, as amended at 48
units for planning regional solid waste FR 29302, June 24, 1983]
management services pursuant to sec-
tion 4002(a) of the Solid Waste Disposal
Act, as amended by the Resource Con-

servation and Recovery Act of 1976 (the
Act). The guidelines also define and
393
§ 255.10 40 CFR Ch. I (7–1–21 Edition)
Subpart B—Criteria for Identifying ability, land availability, natural bar-

Regions and Agencies riers (rivers and mountains), the quan-
tity and availability of water re-
§ 255.10 Criteria for identifying resources, and the susceptibility of
gions. ground water to contamination should
The following criteria are to assist in be considered. Aquifer protection in ac-
identifying regions pursuant to section cordance with State water quality
4006(a) of the Act. management plans and policies could
(a) Geographic areas which have a influence boundary selection.
history of cooperating to solve prob- (f) Coordination with ongoing plan-
lems in environmental or other related ning for other purposes may be an in-
matters should be considered. fluence in selecting boundaries.
(1) Regions encompassing existing re- (1) The local and regional planning
gional, including countywide, systems process should be integrated into the
or institutions, including those of the State planning process.
private sector, should be evaluated. (2) Use of a common data base should
Changes in their boundaries may be be encouraged among transportation,
needed for economic viability or other land use, and other planning areas.
reasons in keeping with the State plan. (3) To the extent practicable, coter-
(2) Boundary selection which would minous planning regions should be en-
require the creation of new agencies couraged, and larger regions should be
should be considered only where nec- multiples of whole smaller regions.
essary. The relationship among estab- (4) Coordination should be provided
lished agencies should be considered. with those agencies designated for
Where institutional gaps or inadequa- water quality management planning
cies are found, regions should be identi- under section 208 of the Federal Water
fied keeping in mind which agencies Pollution Control Act, with under-
would be able to fill those needs. ground injection control agencies des-
(b) The size and location of regions ignated in accordance with the Safe
should permit resource recovery and Drinking Water Act, and with air qual-
conservation in accordance with the ity planning agencies designated under
objectives in section 4001 of the Act. the Clean Air Act.
(1) A region’s size and configuration (Sec. 4002(a), Pub. L. 94–580, 90 Stat. 2795 (42
should be considered, weighing trans- U.S.C. 6942))
portation costs against economies of
scale. § 255.11 Criteria for identifying agen-
(2) Left-over regions having inad- cies.
equate resources or volumes of waste The following criteria are intended to
should be avoided. assist in the process of agency selec-
(3) Location should be considered rel- tion pursuant to section 4006(b) of the
ative to available transportation and Act. They may also be useful in point-
to markets for recovered resources. ing out needed improvements in the
(c) The volume of wastes within a re- qualifications of the selected agencies.
gion will influence the technology (a) Existing agencies with dem-
choices for recovery and disposal, de- onstrated satisfactory ability to plan,
termine economies of scale, and affect manage, or operate solid waste man-
marketability of resources recovered. agement services should be considered
A region should include sufficient vol- for planning and implementation re-
ume of waste to support the goals and sponsibilities. Agencies which have
objectives of the State plan, including completed planning that resulted in
materials or energy recovery as appro- successful implementation of solid
priate. waste management facilities or serv-
(d) Waste type should be considered ices should be given priority consider-
since it also affects management op- ation for future planning responsibil-
tions. Industrial or hazardous waste ities when they otherwise meet these
streams may warrant special consider- criteria.
ation or special boundaries. (b) An agency to be identified as re-

(e) The effect of geologic and hydro- sponsible for conducting regional solid
logic conditions, such as soil suit- waste management planning should:
394
(1) Be a representative organization agencies are selected, there should be

composed of, or whose membership is some means to ensure implementation,
composed of, individuals at least a ma- such as State legislation or an inter-
jority of whom are elected officials of agency agreement that all constituent
local governments or their designees jurisdictions will abide by the plan.
having jurisdiction in the planning re- Furthermore, strong coordination
gion. should be established between the plan-
(2) Have planning jurisdiction in the ning agency and the implementing
entire planning region. agency. During the planning period,
(3) Be capable of having the planning the implementation agency should
process fully underway within 1 year have continual access to plan develop-
after identification. ment processes. There should be an ad-
(4) Have established procedures for ministrative procedure to resolve con-
adoption, review, and revision of plans flicts between planners and implemen-
and resolution of major issues, includ- ters.
ing procedures for public participation (f) The agency responsible for car-
in the planning process. rying out the regional plan should be
(5) Have appropriate experience and constituted with authority to imple-
skills to perform all of its assigned re- ment the plan in its constituent juris-
sponsibilities, including expertise for dictions.
the particular waste type, processing (g) The need for a reliable volume of
or disposal technology, and functional waste to supply disposal or recovery fa-
area. (Attention is directed to OMB cilities should be addressed. The Agen-
Circular No. A–95, paragraph 1.e., part cy providing such facilities whose
IV of Attachment A which encourages member jurisdictions could choose
the designation of established substate whether or not to utilize the facility
district comprehensive planning agen- should analyze that need and consider
cies as the agencies to carry out methods such as franchising or public
areawide planning assisted or required utility controls to assure an adequate
under any Federal program). supply.
(c) In identifying agencies for solid
waste management planning and im- Subpart C—Procedures for
plementation under section 4006 of the Identifying Regions and Agencies
Act, the State should review the solid
waste activities being conducted by NOTE: The following procedures are pro-
water quality management planning vided to assist in establishing consultation
agencies designated under section 208 and joint identification processes to be used
of the Federal Water Pollution Control for identifying regions and agencies pursuant
Act. Where feasible, identification of to section 4006. Any process which meets the
substantive intent of these guidelines may
such agencies should be considered in
be submitted to the EPA Regional Adminis-
the joint identification processes of trator for purposes of determining grant eli-
subpart C of this part. There should be gibility under section 4007, especially if such
a formal means of coordination estab- process has been mandated or funded by
lished with the State water quality State legislation.
management agencies.
(d) Planning objectives will influence § 255.20 Preliminary identification of
agency selection. Distinctions may be regions.
made between policy planning and fa- Preliminary identification of regions
cility planning and between planning a should be made by the Governor or his
single solid waste management system representative after consultation with
and comprehensive planning which regional and areawide planning agen-
addresses trade-offs among various cies, water quality and solid waste
media. management planning agencies, cities,
(e) For coordinating planning and im- and counties and other appropriate
plementation under the State plan, as units of general purpose local govern-
required in section 4003(1)(c), consider- ment. The Governor should notify the
ation should be given to identifying concerned agencies of his recommenda-

one agency for both functions. Where tions concerning boundaries. Where the
separate planning and implementation regional identification has already
395
§ 255.21 40 CFR Ch. I (7–1–21 Edition)
been established by State legislation or dures to determine that at least all

other method in keeping with these general purpose local governments
guidelines, this notification need only within the State, all units of regional
request comments on the existing ar- governance, all existing solid waste
rangement. and water quality management plan-
[42 FR 24927, May 16, 1977, as amended at 48 ning agencies, and all areawide agen-
FR 29303, June 24, 1983] cies and the state process under Execu-
tive Order 12372 will be notified. If nec-
§ 255.21 Local consultation on bound- essary, a supplemental distribution list
aries. should be prepared. Consideration
Any chief executive of a general pur- should be given to addressing indi-
pose government within the State may vidual offices within those agencies.
comment on the Governor’s rec- (b) The Governor should, by cor-
ommendation concerning the bound- respondence or State notification pro-
aries. cedures, notify the agencies on the dis-
(a) The purposes of these comments tribution list (paragraph (a) of this sec-
are to assure that the experience of tion) of the purpose and schedule of the
local agencies is used to fullest advan- joint identification process. This may
tage in boundary decisions, that in- be coincident with the notification in
compatible institutional arrangements § 255.20.
are not forced, and that significant (c) The Governor, an appropriate leg-
local considerations are not over- islative committee, and appropriate
looked. local elected officials may submit
(b) When the objectives of the Act nominations of agencies and functions
concerning local consultation can be to the lead agency appointed by the
met by an equivalent or existing proc- Governor. This lead agency should
ess established under State administra- make such nominations public.
tive procedures acts or other State pro- (d) Chief executives of agencies on
cedural guidance, the Governor may re- the distribution list may comment by
quest that the EPA accept that process letter on the nominations.
in fulfillment of the grant eligibility (e) If a disagreement exists which
criteria under section 4007 of the Act. cannot be settled by correspondence or
a meeting with the Governor’s rep-
§ 255.22 Establishing regional bound- resentative, a public hearing should be
aries. held and all elected officials of local
Under section 4006(a) of the Act the general purpose governments within
formal means for identifying regional the region should be invited. The pur-
boundaries are to be regulations propose of this meeting will be for the
mulgated by the Governor. Where the local officials to reach a consensus re-
identification of areas has already been garding the agency(ies) to be formally
made by State legislation or other identified.
means which have legal stature equiva- (f) When a consensus is reached
lent to the required regulations, and among local elected officials a formal
where notification and consultation agreement should be made in conform-
have occurred pursuant to §§ 255.20 and ance with State administrative proce-
255.21 of this part, such legislation may dures. It should be binding until re-
be used in lieu of those regulations. vised in accordance with this subpart.
Where substantial disagreement per- (g) When the local consensus is in
sists between the Governor and local agreement with the State opinion, the
officials, normal State administrative State should confirm that agreed ar-
and judicial appeals procedures are rangement, formally establishing the
available to resolve such conflict. duties and responsibilities of the iden-
tified agencies by legislative resolution
§ 255.23 Joint identification of agen- or executive order.
cies. (h) In the event that a consensus can-
(a) The Governor should designate a not be reached before 270 days after
lead agency to manage the identifica- promulgation of regulations pursuant

tion process. That agency should re- to § 255.22 the Governor should des-
view established notification proce- ignate a State agency to develop and
396
implement the plan for the concerned (b) Where the State plan identifies
region. municipal sewage sludge disposal, haz-
ardous waste disposal or other func-
[42 FR 24927, May 16, 1977, as amended at 48
FR 29303, June 24, 1983]
tions needing attention in a region, an
agency should be identified as being re-
§ 255.24 Procedure for identifying sponsible for that function in that re-
interstate regions. gion.
If the Governor’s recommendation, (c) These responsibilities may be as-
the local consensus, or a neighboring signed with the intent that private in-
Governor’s recommendation is that an dustry be the actual purveyor of serv-
interstate region be identified, the pro- ice.
cedures described in this subpart § 255.31 Integration with other acts.
should be extended to include notifica-
tion and comment of all concerned offi- The Governor shall integrate the pro-
cials in the entire recommended revisions of these guidelines for purposes
gion. of administration and enforcement,
(a) Section 4006(c) of the Act estab- and should avoid duplication to the
lishes specific procedures for the con- maximum extent practicable, with the
duct of interstate identification proc- appropriate regional identification pro-
esses. visions of the Clean Air Act (42 U.S.C.
(b) Recommendations, nominations, 1857 et seq.), the Federal Water Pollu-
and comments resulting from processes tion Control Act (33 U.S.C. 1251 et seq.),
described in §§ 255.20 and 255.21 that the Safe Drinking Water Act (42 U.S.C.
concern interstate regions should be 300f et seq.), the Toxic Substances Con-
brought to the attention of the appro- trol Act (15 U.S.C. 2601 et seq.), the Ma-
priate EPA Regional Administrator. rine Protection, Research and Sanc-
(c) The Governor should evaluate the tuaries Act of 1972 (33 U.S.C. 1401 et
use of interstate metropolitan area seq.) and other appropriate Acts of Con-
(Standard Metropolitan Statistical gress.
Area) boundaries for planning and (Sec. 1006(b), Pub. L. 94–580, 90 Stat. 2795 (42
management purposes, and consider U.S.C. 6905(b)))
nominating such areas where appro-
priate. § 255.32 Coordination with other pro-
grams.
(Also sec. 4006(c), Pub. L. 94–580, 90 Stat. 2795
(42 U.S.C. 6946(c))) The region and agency identification
criteria (§ 255.11) specify review of solid
§ 255.25 Public participation. waste activities being conducted by
Public participation in the process of water quality management planning
identifying regions and agencies should agencies, underground injection con-
be provided for, encouraged, and as- trol agencies, and air quality manage-
sisted by the State and local officials. ment agencies. There should be a for-
mal means of coordination established
between any agencies established under
Subpart D—Responsibilities of section 4006 which are not identical
Identified Agencies and Rela- with these agencies. Coordination
tionship to Other Programs should be established so that permit-
tees under the National Pollutant Dis-
§ 255.30 Responsibilities established. charge Elimination System of the Fed-
The following duties and responsibil- eral Water Pollution Control Act will
ities should be assigned for all appro- be consulted concerning disposal of re-
priate areas pursuant to section 4006. sidual sludges.
(a) Disposal of municipal solid waste
should be an identified responsibility § 255.33 Inclusion of Federal facilities
throughout the State. In the event that and Native American Reservations.
no local or regional agency is held re- Major Federal facilities and Native
sponsible for disposal for a region, a American Reservations should be

State agency should be identified and treated for the purposes of these guide-
held accountable. lines as though they are incorporated
397
§ 255.40 40 CFR Ch. I (7–1–21 Edition)
municipalities, and the facility direc- (d) The notification should provide a
tor or administrator should be consid- schedule for phasing of plan develop-
ered the same as a locally elected offi- ment with the identification of agen-
cial. cies to carry out those plans, showing
(Sec. 6001, Pub. L. 94–580, 90 Stat. 2795 (42 the projected maturation of manage-
U.S.C. 6961)) ment agencies and the milestones for
those agencies in taking over the plan
Subpart E—Submission and implementation process.
Revision of Identifications (e) This notification should include
establishment of State agencies where
§ 255.40 Notification of status. regional planning and implementation
This subpart describes procedures agencies have not been identified with-
which may ultimately be required by in 270 days of the Governor’s promulga-
EPA when it publishes regulations gov- tion of regulations identifying regional
erning application and eligibility for boundaries.
grants under section 4007. Under these (See sec. 4006(b)(2))
regulations the appropriate EPA Re-
gional Administrator will consider the § 255.41 Procedure for revision.
identifications made under section 4006
as one of the conditions of grant eligi- The procedure for revising regional
bility. identifications or agency responsibil-
The Regional Administrator may ac- ities should be specified by the notifi-
cept, in State grant applications, noti- cation.
fication of the status of these identi- (a) The State should review and, if
fications to ensure that premature de- appropriate, revise or modify the iden-
cisions on State plan development will tification of regions and the respon-
not be forced by the timing of the iden- sibilities of local and regional agencies
tifications specified in the Act. Proce- at intervals of less than 3 years. Re-
dures are outlined here to advise the view and modification should include,
States of what EPA expects to require but not be limited to, the following
in such notification. areas:
(a) The notification should specify (1) Whether new regions should be
those regional boundaries and agencies identified, or whether present bound-
which are uncontested at the time of aries should be modified.
submission, and specify a schedule of (2) Whether responsibilities of an
hearings and determinations of subse- agency should be expanded or reduced
quent identification of regions and due to changes in the needs for solid
agencies as consensus is reached.
waste functions in the region.
(b) The appropriate level of detail
(b) Revisions or adjustments to the
and the timing of the identifications to
be made should be established for each State plan may require minor bound-
planning region after agreement be- ary or agency changes from time to
tween the State and the appropriate time. The appropriate EPA Regional
EPA Regional Administrator. The tim- Administrator should be notified of
ing should depend upon how well the such revisions by the State solid waste
State plan is developed, the environ- agency.
mental and economic decisions to be (c) Major revisions or adjustments in
made, and the existing management agencies or boundaries should be made
approaches to their resolution. in consultation with local officials and
(c) The notification should list the be subject to the same procedures used
major known interested agencies and in the original identification process.
private operators within each planning Notification of such revisions should be
region and describe how they will be submitted with State plan updates.
included in the process. Where appro-
priate, it should include an expression
of their interest and a definition of the

extent and limits of their role in solid
waste management planning.
398
PART 256—GUIDELINES FOR DEVEL- Subpart F—Coordination With Other

OPMENT AND IMPLEMENTATION Programs
OF STATE SOLID WASTE MAN- 256.50 Requirements.
AGEMENT PLANS
Subpart G—Public Participation
Subpart A—Purpose, General 256.60 Requirements for public participation
Requirements, Definitions in State and substate plans.
256.61 Requirements for public participation
Sec. in the annual State work program.
256.01 Purpose and scope of the guidelines. 256.62 Requirements for public participation
256.02 Scope of the State solid waste man- in State regulatory development.
agement plan. 256.63 Requirements for public participation
256.03 State plan submission, adoption, and in the permitting of facilities.
revision. 256.64 Requirements for public participation
256.04 State plan approval, financial assist- in the open dump inventory.
ance. 256.65 Recommendations for public partici-
256.05 Annual work program. pation.
256.06 Definitions. AUTHORITY: Sec. 4002(b), Pub. L. 94–580, 90
Stat. 2813(b) (42 U.S.C. 6942(b)).
Subpart B—Identification of
Responsibilities; Distribution of Funding SOURCE: 44 FR 45079, July 31, 1979, unless
otherwise noted.
256.10 Requirements. EDITORIAL NOTE: For approval of State
256.11 Recommendations. solid waste management plans see the List of
CFR Sections Affected in the Finding Aids
Subpart C—Solid Waste Disposal Programs section of this volume.
256.20 Requirements for State legal author-

ity. Subpart A—Purpose, General
256.21 Requirements for State regulatory Requirements, Definitions
powers.
256.22 Recommendations for State regu- § 256.01 Purpose and scope of the
latory powers. guidelines.
256.23 Requirements for closing or upgrad- (a) The purpose of these guidelines is
ing open dumps. to assist in the development and imple-
256.24 Recommendations for closing or up- mentation of State solid waste man-
grading open dumps. agement plans, in accordance with sec-
256.25 Recommendation for inactive facili- tion 4002(b) of the Solid Waste Disposal
ties. Act, as amended by the Resource Con-
256.26 Requirement for schedules leading to servation and Recovery Act of 1976 (42
compliance with the prohibition of open
U.S.C. 6942(b)) (the ‘‘Act’’). These
dumping.
guidelines contain methods for achiev-
256.27 Recommendation for schedules lead-
ing to compliance with the prohibition of
ing the objectives of environmentally
open dumping. sound management and disposal of
solid and hazardous waste, resource
Subpart D—Resource Conservation and conservation, and maximum utiliza-
Resource Recovery Programs tion of valuable resources.
(b) These guidelines address the min-
256.30 Requirements. imum requirements for approval of
256.31 Recommendations for developing and State plans as set forth in section 4003
implementing resource conservation and of the Act. These are:
recovery programs. (1) The plan shall identify, in accord-
ance with section 4006(b), (i) the re-
Subpart E—Facility Planning and
sponsibilities of State, local, and re-
Implementation
gional authorities in the implementa-
256.40 Requirements. tion of the State plan, (ii) the distribu-
256.41 Recommendations for assessing the tion of Federal funds to the authorities
need for facilities. responsible for development and imple-

256.42 Recommendations for assuring facil- mentation of the State plan, and (iii)
ity development. the means for coordinating regional
399
§ 256.02 40 CFR Ch. I (7–1–21 Edition)
planning and implementation under for resource conservation or resource

the State plan. recovery. The plan shall consider:
(2) The plan shall, in accordance with (i) Hazardous wastes;
section 4005(c), prohibit the establish- (ii) Residential, commercial and in-
ment of new open dumps within the stitutional solid waste;
State, and contain requirements that (iii) Wastewater treatment sludge;
all solid waste (including solid waste (iv) Pollution control residuals;
originating in other States, but not in- (v) Industrial wastes;
cluding hazardous waste) shall be (i) (vi) Mining wastes;
utilized for resource recovery or (ii) (vii) Agricultural wastes;
disposed of in sanitary landfills (within (viii) Water treatment sludge; and
the meaning of section 4004(a)) or oth- (ix) Septic tank pumpings.
erwise disposed of in an environ- (2) The State plan shall consider the
mentally sound manner. following aspects of solid waste man-
(3) The plan shall provide for the agement:
closing or upgrading of all existing (i) Resource conservation;
open dumps within the State pursuant (ii) Source separation;
to the requirements of section 4005. (iii) Collection;
(4) The plan shall provide for the es- (iv) Transportation;
(v) Storage;
tablishment of such State regulatory
(vi) Transfer;
powers as may be necessary to imple-
(vii) Processing (including resource
ment the plan.
recovery);
(5) The plan shall provide that no (viii) Treatment; and
local government within the State (ix) Disposal.
shall be prohibited under State or local (b) The State Plan shall establish and
law from entering into long-term con- justify priorities and timing for ac-
tracts for the supply of solid waste to tions. These priorities shall be based on
resource recovery facilities. the current level of solid waste man-
(6) The plan shall provide for re- agement planning and implementation
source conservation or recovery and for within the State, the extent of the
the disposal of solid waste in sanitary solid waste management problem, the
landfills or for any combination of health, environmental and economic
practices so as may be necessary to use impacts of the problem, and the re-
or dispose of such waste in a manner sources and management approaches
that is environmentally sound. available.
(c) These guidelines address the re- (c) The State plan shall set forth an
quirement of section 4005(c) that a orderly and manageable process for
State plan: achieving the objectives of the Act and
Shall establish, for any entity which dem- meeting the requirements of these
onstrates that it has considered other public quidelines. This process shall describe
or private alternatives for solid waste man- as specifically as possible the activities
agement to comply with the prohibition on to be undertaken, including detailed
open dumping and is unable to utilize such schedules and milestones.
alternatives to so comply, a timetable or (d) The State plan shall cover a min-
schedule of compliance for such practice or
imum of a five year time period from
disposal of solid waste which specifies a
schedule of remedial measures, including an the date submitted to EPA for ap-
enforceable sequence of actions or operations proval.
leading to compliance with the prohibition (e) The State plan shall identify ex-
on open dumping of solid waste within a rea- isting State legal authority for solid
sonable time (not to exceed five years from waste management and shall identify
the date of publication of the inventory). modifications to regulations necessary
to meet the requirements of these
§ 256.02 Scope of the State solid waste guidelines.
management plan.
(a)(1) The State plan shall address all § 256.03 State plan submission, adop-
solid waste in the State that poses po- tion, and revision.
tential adverse effects on health or the (a) To be considered for approval, the
environment or provides opportunity State plan shall be submitted to EPA
400
within a reasonable time after final the State and provide an opportunity
promulgation of these guidelines. for such revisions and corrections and
(b) Prior to submission to EPA, the for an appeal and public hearing. If the
plan shall be adopted by the State pur- plan continues to remain out of com-
suant to State administrative proce- pliance, he shall withdraw his approval
dures. of such plan.
(c) The plan shall be developed in ac- (c) Such withdrawal of approval shall
cord with public participation proce- cease to be effective upon the Adminis-
dures required by Subpart G of this trator’s determination that the State
part. plan complies with the requirements of
(d) The plan shall contain procedures these guidelines.
for revision. The State plan shall be re- (d) The Administrator shall approve
vised by the State, after notice and a State application for financial assist-
public hearings, when the Adminis- ance under subtitle D of the Act, and
trator, by regulation, or the State de- make grants to such State, if the Ad-
termines, that: ministrator determines that the State
(1) The State plan is not in compli- plan continues to be eligible for ap-
ance with the requirements of these proval and is being implemented by the
guidelines; State.
(2) Information has become available (e) Upon withdrawal of approval of a
which demonstrates the inadequacy of State plan, the Administrator shall
the plan; or withhold Federal financial and tech-
(3) Such revision is otherwise nec- nical assistance under subtitle D (other
essary. than such technical assistance as may
(e) The State plan shall be reviewed be necessary to assist in obtaining re-
by the State and, where necessary, re- instatement of approval) until such
vised and readopted not less frequently time as approval is reinstated. (Proce-
than every three years. dures for termination of financial as-
(f) States which are developing a sistance and for settlement of disputes
complete State plan may submit the are contained in 40 CFR part 30, appen-
portion of the plan designed to satisfy dix A, articles 7 and 8.)
the requirements of § 256.26 prior to (f) If a State submits to EPA the por-
submission of the complete plan. tion of the plan by which entities may,
pursuant to § 256.26, obtain timetables
[44 FR 45079, July 31, 1979, as amended at 46 or schedules of compliance for com-
FR 47051, Sept. 23, 1981]
plying with the open dumping prohibi-
§ 256.04 State plan approval, financial tion, the Administrator shall approve
assistance. such portion of the plan if he deter-
mines that:
(a) The Administrator shall, within
(1) The portion submitted satisfies
six months after a State plan has been
the requirements of § 256.26;
submitted for approval, approve or dis-
(2) The State has the general legal
approve the plan. The Administrator
authority to issue and enforce compli-
shall approve a plan if he determines
ance schedules; and
that:
(3) The remainder of the plan is being
(1) It meets the requirements of these
developed in conformity with these
guidelines which address sections
guidelines and will be completed with-
4003(1), (2), (3), and (5), and
in a reasonable period of time.
(2) It contains provisions for revision
pursuant to § 256.03. In giving partial plan approval, the Ad-
(b) The Administrator shall review ministrator shall specify in writing the
approved plans from time to time, and timetable for completion of the final
if he determines that revisions or cor- plan as required in paragraph (f)(3) of
rections are necessary to bring such this section.
plan into compliance with all of the re- [44 FR 45079, July 31, 1979, as amended at 46
quirements of these guidelines, includ- FR 47051, Sept. 23, 1981]
ing the requirements which address
sections 4003(4) and (6) and any new or § 256.05 Annual work program.
revised requirement established by (a) The annual work program sub-
amendment to this part, he shall notify mitted for financial assistance under
401
§ 256.06 40 CFR Ch. I (7–1–21 Edition)
section 4008(a)(1) and described in the essing, treatment or disposal of solid

grant regulations (40 CFR part 35) shall waste, including hazardous waste,
be reviewed by the Administrator in whether such facility is associated
order to determine whether the State with facilities generating such wastes
plan is being implemented by the or not.
State. Implementation means putting the
(b) The Administrator and the State plan into practice by carrying out
shall agree on the contents of the an- planned activities, including compli-
nual work program. The Administrator ance and enforcement activities, or en-
will consider State initiatives and pri- suring such activities are carried out.
orities, in light of the goals of the Act, Inactive facility means a facility
in determining annual work programs which no longer receives solid waste.
for each State. The annual work pro- Inventory of open dumps means the in-
gram represents a State’s obligation ventory required under section 4005(b)
incurred by acceptance of financial as- and is defined as the list published by
sistance. EPA of those disposal facilities which
(c) Annual guidance for the develop- do not meet the criteria.
ment of State work programs will be Operator includes facility owners and
issued by EPA. While this guidance operators.
will establish annual national prior- A permit is an entitlement to com-
ities, flexibility will be provided in mence and continue operation of a fa-
order to accommodate differing State cility as long as both procedural and
priorities. performance standards are met. The
(d) The following documents devel- term ‘‘permit’’ includes any functional
oped under the State plan shall be in- equivalent such as a registration or li-
cluded by reference in the annual work cense.
program: Planning includes identifying prob-
(1) Substate solid waste management lems, defining objectives, collecting in-
plans, formation, analyzing alternatives and
(2) Plans for the development of fa- determining necessary activities and
cilities and services, including haz- courses of action.
ardous waste management facilities Provide for in the phrase ‘‘the plan
and services, and shall (should) provide for’’ means ex-
(3) Evidence of actions or steps taken plain, establish or set forth steps or
to close or upgrade open dumps. courses of action.
(e) The annual work program shall The term shall denotes requirements
allocate the distribution of Federal for the development and implementa-
funds to agencies responsible for the tion of the State plan.
development and implementation of The term should denotes rec-
the State plan. ommendations for the development and
§ 256.06 Definitions. implementation of the State plan.
Substate refers to any public regional,
Terms not defined below have the local, county, municipal, or inter-
meanings assigned them by section 1004 municipal agency, or regional or local
of the Act. public (including interstate) solid or
The Act means the Solid Waste Dis- hazardous waste management author-
posal Act, as amended by the Resource ity, or other public agency below the
Conservation and Recovery Act of 1976 State level.
(42 U.S.C. 6901 et seq.).
Criteria means the ‘‘Criteria for Clas-
sification of Solid Waste Disposal Fa- Subpart B—Identification of Re-
cilities’’, 40 CFR Part 257, promulgated sponsibilities; Distribution of
under section 4004(a) of the Act. Funding
Facility refers to any resource recov-
ery system or component thereof, any § 256.10 Requirements.
system, program or facility for re- (a) In accordance with sections
source conservation, and any facility 4003(1) and 4006 and the interim guide-
for collection, source separation, stor- lines for identification of regions and
age, transportation, transfer, proc- agencies for solid waste management
402
(40 CFR part 255), the State plan shall ardous waste management program
provide for: under subtitle C of the Act.
(1) The identification of the respon- (e) The State plan should include a
sibilities of State and substate (re- schedule and procedure for the con-
gional, local and interstate) authori- tinuing review, reassessment and reas-
ties in the development and implemen- signment of responsibilities.
tation of the State plan;
(2) The means of distribution of Fed- Subpart C—Solid Waste Disposal
eral funds to the authorities respon-
sible for development and implementa- Programs
tion of the State plan; and § 256.20 Requirements for State legal
(3) The means for coordinating sub- authority.
state planning and implementation.
(b) Responsibilities shall be identi- In order to comply with sections 4003
fied for the classification of disposal fa- (2) and (3), the State plan shall assure
cilities for the inventory of open that the State has adequate legal au-
dumps. thority to prohibit the establishment
(c) Responsibilities shall be identified of new open dumps and to close or up-
for development and implementation of grade existing open dumps. The prohi-
the State regulatory program described bition of the establishment of new open
in subpart C of this part. dumps shall take effect no later than
(d) Responsibilities shall be identi- six months after the date of promulga-
fied for the development and imple- tion of the criteria or on the date of ap-
mentation of the State resource con- proval of the State plan, whichever is
servation and resource recovery pro- later.
gram described in subpart D of this
part. § 256.21 Requirements for State regu-
(e) State, substate and private sector latory powers.
responsibilities shall be identified for In order to comply with section
the planning and implementation of 4003(4), the State plan shall provide for
solid and hazardous waste management the establishment of State regulatory
facilities and services. powers. These powers:
(f) Financial assistance under sec- (a) Shall be adequate to enforce solid
tions 4008(a) (1) and (2) shall be allo- waste disposal standards which are
cated by the State to State and sub- equivalent to or more stringent than
state authorities carrying out develop-
the criteria for classification of solid
ment and implementation of the State
waste disposal facilities (40 CFR part
plan. Such allocation shall be based on
the responsibilities of the respective 257). Such authority shall be as defini-
parties as determined under section tive as possible and clearly establish
4006(b). the means for compliance.
(b) Shall include surveillance capa-
§ 256.11 Recommendations. bilities necessary to detect adverse en-
(a) Responsibilities should be identi- vironmental effects from solid waste
fied for each of the solid waste types disposal facilities. Such capabilities
listed in § 256.02(a)(1). shall include access for inspection and
(b) Responsibilities should be identi- monitoring by regulatory officials and
fied for each of the aspects of solid the authority to establish operator
waste management listed in monitoring and reporting require-
§ 256.02(a)(2). ments.
(c) Responsibilities should be identi- (c) Shall make use of a permit pro-
fied for planning and designating gram which ensures that the establish-
ground water use with respect to de- ment of new open dumps is prohibited.
sign and operation of solid waste dis- (d) Shall have administrative and ju-
posal facilities. dicial enforcement capabilities, includ-
(d) Responsibilities should be identi- ing enforceable orders, fines or other

fied for the development and imple- administrative procedures, as nec-
mentation of the authorized State haz- essary to ensure compliance.
403
§ 256.22 40 CFR Ch. I (7–1–21 Edition)
§ 256.22 Recommendations for State itoring, reporting, completion and

regulatory powers. maintenance requirements.
In order to assist compliance with (3) Permit procedures should include
section 4003(4), the following are rec- provisions to ensure that future use of
ommendations for State regulatory the property on which the facility is lo-
powers as may be necessary to prohibit cated is compatible with that prop-
new open dumps and close or upgrade erty’s use as a solid waste disposal fa-
all existing open dumps. cility. These procedures should include
identification of future land use or the
(a) Solid waste disposal standards:
inclusion of a stipulation in the prop-
(1) Should be based on the health and
erty deed which notifies future pur-
environmental impacts of disposal
chasers of precautions necessitated by
facilities.
the use of the property as a solid waste
(2) Should specify design and oper- disposal facility.
ational standards. (4) Permits should only be issued to
(3) Should take into account the cli- facilities that are consistent with the
matic, geologic, and other relevant State plan, or with substate plans de-
characteristics of the State. veloped under the State plan.
(b) Surveillance systems should es- (e) The enforcement system should be
tablish monitoring requirements for designed to include both administra-
facilities. tive procedures and judicial remedies
(1) Every facility should be evaluated to enforce the compliance schedules
for potential adverse health and envi- and closure procedures for open dumps.
ronmental effects. Based on this eval- (1) Permits, surveillance, and en-
uation, instrumentation, sampling, forcement system capabilities should
monitoring, and inspection require- be designed for supporting court ac-
ments should be established. tion.
(2) Every facility which produces (2) Detection capabilities and pen-
leachate in quantities and concentra- alties for false reporting should be pro-
tions that could contaminate ground vided for.
water in an aquifer should be required
to monitor to detect and predict con- § 256.23 Requirements for closing or
tamination. upgrading open dumps.
(3) Inspectors should be trained and In meeting the requirement of sec-
provided detailed instructions for tion 4003(3) for closing or upgrading
checking on the procedures and condi- open dumps:
tions that are specified in the engineer- (a) The State plan shall provide for
ing plan and site permit. Provisions the classification of existing solid
should be made to ensure chain of cus- waste disposal facilities according to
tody for evidence. the criteria. This classification shall be
(c) Facility assessment and prescrip- submitted to EPA, and facilities classi-
tion of remedial measures should be fied as open dumps shall be published
carried out by adequately trained or in the inventory of open dumps.
experienced professional staff, includ- (b) The State plan shall provide for
ing engineers and geologists. an orderly time-phasing of the disposal
(d) The State permit system should facility classifications described in
provide the administrative control to paragraph (a) of this section. The de-
prohibit the establishment of new open termination of priorities for the classi-
dumps and to assist in meeting the re- fication of disposal facilities shall be
quirement that all wastes be used or based upon:
disposed in an environmentally sound (1) The potential health and environ-
manner. mental impact of the solid waste dis-
(1) Permitting procedures for new fa- posal facility;
cilities should require applicants to (2) The availability of State regu-
demonstrate that the facility will com- latory and enforcement powers; and
ply with the criteria. (3) The availability of Federal and
(2) The permit system should specify, State resources for this purpose.
for the facility operator, the location, (c) For each facility classified as an
design, construction, operational, mon- open dump the State shall take steps
404
to close or upgrade the facility. Evi- tion of the general public, adjacent
dence of that action shall be incor- residents and other affected parties and
porated by reference into the annual notification of agencies responsible for
work program and be made publicly public health and safety.
available. When the State’s actions
concerning open dumps are modified, § 256.26 Requirement for schedules
the changes shall be referenced in sub- leading to compliance with the pro-
hibition of open dumping.
sequent annual work programs.
(d) In providing for the closure of In implementing the section 4005(c)
open dumps the State shall take steps prohibition on open dumping, the State
necessary to eliminate health hazards plan shall provide that any entity
and minimize potential health hazards. which demonstrates that it has consid-
These steps shall include requirements ered other public or private alter-
for long-term monitoring or contin- natives to comply with the prohibition
gency plans where necessary. on open dumping and is unable to uti-
lize such alternatives to so comply,
§ 256.24 Recommendations for closing may obtain a timetable or schedule for
or upgrading open dumps. compliance which specifies a schedule
(a) All sources of information avail- of remedial measures, and an enforce-
able to the State should be used to aid able sequence of actions, leading to
in the classification of facilities. compliance within a reasonable time
Records of previous inspections and (not to exceed 5 years from the date of
monitoring, as well as new inspections publication of the inventory).
and new monitoring, should be consid-
ered. § 256.27 Recommendation for sched-
ules leading to compliance with the
(b) The steps to close or upgrade open prohibition of open dumping.
dumps established under § 256.23(c)
should be coordinated with the facility In reviewing applications for compli-
needs assessment described in § 256.41. ance schedules under § 256.26, the State
(c) A determination should be made should consider the availability of
of the feasibility of resource recovery processing and disposal facilities, the
or resource conservation to reduce the likelihood of environmental damage
solid waste volume entering a facility from disposal at available facilities,
classified as an open dump; and feasible the existence of State or substate re-
measures to achieve that reduction quirements (including other compli-
should be implemented. ance schedules) applicable to available
(d) At the time of classification of ex- facilities, cost constraints, existing
isting solid waste disposal facilities contractual agreements and other per-
pursuant to § 256.23, the State should tinent factors.
consider developing appropriate time-
tables or schedules by which any re- Subpart D—Resource Conserva-
sponsible party can be brought into tion and Resource Recovery
compliance with the open dumping pro- Programs
hibition pursuant to §§ 256.26 and 256.27.
§ 256.30 Requirements.
[44 FR 45079, July 31, 1979, as amended at 46
FR 47051, Sept. 23, 1981] (a) In order to comply with sections
4003(2) and (6) as they pertain to re-
§ 256.25 Recommendation for inactive source conservation and recovery, the
facilities. State plan shall provide for a policy
Inactive facilities that continue to and strategy for encouragement of re-
produce adverse health or environ- source recovery and conservation ac-
mental effects should be evaluated activities.
cording to the criteria. The State plan (b) In order to comply with section
should provide for measures to ensure 4003(5), the State plan shall provide
that adverse health or environmental that no local government within the
effects from inactive facilities are State is prohibited under State or local
minimized or eliminated. Such meas- law from entering into long-term con-
ures may include actions by disposal tracts for the supply of solid waste to
facility owners and operators, notifica- resource recovery facilities.
405
§ 256.31 40 CFR Ch. I (7–1–21 Edition)
§ 256.31 Recommendations for devel- ments, for resource recovery facilities.

oping and implementing resource This should include:
conservation and recovery pro- (1) Review of existing State and local
grams. laws pertinent to the procurement of
(a) In order to encourage resource re- equipment and services for the design,
covery and conservation, the State construction and operation of resource
plan should provide for technical as- recovery facilities;
sistance, training, information devel- (2) Listing of all laws that limit the
opment and dissemination, financial ability of localities to negotiate for the
support programs, market studies and procurement of the design, construc-
market development programs. tion, or operation of resource recovery
(b) In order to comply with the re- facilities;
quirement of § 256.30(b) regarding long- (3) Development of administrative or-
term contract prohibitions, the State ders or legislation or other action that
plan should provide for: would eliminate these restrictions; and
(1) Review of existing State and local (4) Development of a strategy and
laws and regulations pertinent to con- plan of action for the consideration of
tracting for resource recovery services the legislature for execution of admin-
or facilities.
istrative orders or other action that
(2) Reporting of all laws and regula- would eliminate these restrictions.
tions found to be in violation of this re-
(e) The State plan should encourage
quirement to the executive officer of
the development of resource recovery
the administrative agency responsible
for the statute. and resource conservation facilities
and practices as the preferred means of
(3) Development of an administrative
solid waste management whenever
order or a revised law or regulation or
any other preliminary step for the re- technically and economically feasible.
moval or amending of a law or regula- The State plan should provide for the
tion in violation of this requirement. following activities:
(4) Development of a strategy for the (1) The composition of wastes should
consideration of the legislature to pro- be analyzed with particular emphasis
hibit and/or remove from State or local on recovery potential for material and
law provisions in violation of this re- energy, including fuel value, percent-
quirement. ages of recoverable industrial wastes,
(c) The State plan should aid and en- grades of wastepaper, glass, and non-
courage State procurement of products ferrous and ferrous metals.
containing recovered materials in ac- (2) Available and potential markets
cord with section 6002 of the Act. To as- for recovered materials and energy
sist this effort, the State plan should should be identified, including markets
provide for: for recoverable industrial wastes;
(1) The development of a policy state- wastepapers; ferrous and non-ferrous
ment encouraging the procurement of metals; glass; solid, liquid, or gaseous
recovered materials, wherever feasible; fuels; sludges; and tires. The following
(2) The identification of the key pur- should be evaluated: location and
chasing agencies of the State, along transportation requirements, materials
with potential uses of recovered mate- and energy specifications of user indus-
rials by these agencies; and, tries, minimum quantity requirements,
(3) The development of a plan of ac- pricing mechanisms and long-term con-
tion to promote the use of recovered tract availability.
materials through executive order, leg- (3) Resource recovery feasibility
islative initiative, or other action that studies should be conducted in regions
the State deems necessary. of the State in which uses or markets
(d) In order to encourage resource re- for recovered materials or energy are
covery and conservation, the State identified. These studies should review
plan should provide for the elimi- various technological approaches, envi-
nation, to the extent possible, of re- ronmental considerations, institu-

strictions on the purchase of goods or tional and financial constraints, and
services, especially negotiated procure- economic feasibility.
406
(4) Source separation, recycling and (7) Diversion of wastes due to closure
resource conservation should be uti- of open dumps should be anticipated.
lized whenever technically and eco- (8) Facilities and practices planned
nomically feasible. or provided for by the private sector
(5) Mixed waste processing facilities should be assessed.
for the recovery of energy and mate- (b) The State plan should provide for
rials should be utilized whenever tech- the identification of areas which re-
nically and economically feasible. quire new capacity development, based
(6) Source separation, resource con- on the needs assessment.
servation and mixed waste processing
capacity should be combined to achieve § 256.42 Recommendations for assur-
the most effective resource conserva- ing facility development.
tion and economic balance.
(a) The State plan should address fa-
cility planning and acquisition for all
Subpart E—Facility Planning and areas which are determined to have in-
Implementation sufficient recovery, storage, treatment
and disposal capacity in the assess-
§ 256.40 Requirements. ment of facility needs.
In order to comply with section (b) Where facilities and practices are
4003(6), the State plan shall provide for found to be inadequate, the State plan
adequate resource conservation, recov- should provide for the necessary facili-
ery, storage, treatment and disposal fa- ties and practices to be developed by
cilities and practices necessary to use responsible State and substate agencies
or dispose of solid and hazardous waste or by the private sector.
in an environmentally sound manner. (c) For all areas found to have five or
fewer years of capacity remaining, the
§ 256.41 Recommendations for assess-
ing the need for facilities. State plan should provide for:
(1) The development of estimates of
(a) In meeting the requirement for waste generation by type and char-
adequate resource conservation, recov- acteristic,
ery, storage, treatment and disposal fa-
(2) The evaluation and selection of
cilities and practices, the State plan
resource recovery, conservation or dis-
should provide for an assessment of the
posal methods,
adequacy of existing facilities and
(3) Selection of sites for facilities,
practices and the need for new or ex-
and
panded facilities and practices.
(1) The needs assessment should be (4) Development of schedules of im-
based on current and projected waste plementation.
generation rates and on the capacities (d) The State plan should encourage
of presently operating and planned fa- private sector initiatives in order to
cilities. meet the identified facility needs.
(2) Existing and planned resource (e) In any area having fewer than 2
conservation and recovery practices years of projected capacity, the State
and their impact on facility needs plan should provide for the State to
should be assessed. take action such as acquiring facilities
(3) Current and projected movement or causing facilities to be acquired.
of solid and hazardous waste across (f) The State plan should provide for
State and local boundaries should be the initiation and development of envi-
assessed. ronmentally sound facilities as soon as
(4) Special handling needs should be practicable to replace all open dumps.
determined for all solid waste cat- (g) The State plan should provide for
egories. the State, in cooperation with substate
(5) Impact on facility capacities due agencies, to establish procedures for
to predictable changes in waste quan- choosing which facilities will get pri-
tities and characteristics should be es- ority for technical or financial assist-
timated. ance or other emphasis. Highest pri-
(6) Environmental, economic, and ority should be given to facilities de-

other constraints on continued oper- veloped to replace or upgrade open
ation of facilities should be assessed. dumps.
407
§ 256.50 40 CFR Ch. I (7–1–21 Edition)
(h) The State plan should provide for closely with the issuance of a new or
substate cooperation and policies for revised NPDES permit for such facil-
free and unrestricted movement of ity.
solid and hazardous waste across State (d) The State plan shall provide for
and local boundaries. coordination with activities for munic-
ipal sewage sludge disposal and utiliza-
Subpart F—Coordination With tion conducted under the authority of
Other Programs section 405 of the Clean Water Act, as
amended (33 U.S.C. 1345), and with the
§ 256.50 Requirements. program for construction grants for
Section 4003(1) requires the State publicly owned treatment works under
solid waste management plan to section 201 of the Clean Water Act, as
idenifty means for coordinating re- amended (33 U.S.C. 1281).
gional planning and implementation (e) The State plan shall provide for
under the State plan. Section 1006 re- coordination with State pretreatment
quires the Administrator to integrate activities under section 307 of the
all provisions of this Act (including ap- Clean Water Act, as amended (33 U.S.C.
proval of State plans) with other Acts 1317).
that grant regulatory authority to the (f) The State plan shall provide for
Administrator in order to prevent du- coordination with agencies conducting
plication of administrative and en- assessments of the impact of surface
forcement efforts. In order to meet impoundments on underground sources
these requirements: of drinking water under the authority
(a) The State solid waste manage- of section 1442(a)(8)(C) of the Safe
ment plan shall be developed in coordi- Drinking Water Act (42 U.S.C. 300j–1).
nation with Federal, State, and sub-
(g) The State plan shall provide for
state programs for air quality, water
coordination with State underground
quality, water supply, waste water
injection control programs (40 CFR
treatment, pesticides, ocean protec-
Parts 122, 123, 124, and 146) carried out
tion, toxic substances control, noise
under the authority of the Safe Drink-
control, and radiation control.
(b) The State plan shall provide for ing Water Act (42 U.S.C. 300f et seq.)
coordination with programs under sec- and with the designation of sole source
tion 208 of the Clean Water Act, as aquifers under section 1424 of that Act.
amended (33 U.S.C. 1288). In identifying (h) The State plan shall provide for
agencies for solid waste management coordination with State implementa-
planning and implementation, the tion plans developed under the Clean
State shall review the solid waste man- Air Act (42 U.S.C. 7401 et seq.; inciner-
agement activities being conducted by ation and open burning limitations;
water quality planning and manage- and, State implementation plan re-
ment agencies designated under section quirements impacting resource recov-
208 of the Clean Water Act. Where fea- ery systems).
sible, identification of such agencies (i) The State plan shall provide for
should be considered during the identi- coordination with the Army Corps of
fication of responsibilities under sub- Engineers permit program (or author-
part B of this part. Where solid waste ized State program) under section 404
management and water quality agen- of the Clean Water Act, as amended (33
cies are separate entities, necessary co- U.S.C. 1344) for dredge and fill activi-
ordination procedures shall be estab- ties in waters of the United States.
lished. (j) The State plan shall provide for
(c) The State plan shall provide for coordination with the Office of Endan-
coordination with the National Pollut- gered Species, Department of the Inte-
ant Discharge Elimination System rior, to ensure that solid waste man-
(NPDES) established under section 402 agement activities, especially the
of the Clean Water Act, as amended (33 siting of disposal facilities, do not jeop-
U.S.C. 1342). The issuance of State fa- ardize the continued existence of an en-
cility permits and actions taken to dangered or threated species nor result
close or upgrade open dumps shall be in the destruction or adverse modifica-
timed, where practicable, to coordinate tion of a critical habitat.
408
(k) The State plan shall provide for Subpart G—Public Participation
coordination, where practicable, with
programs under: § 256.60 Requirements for public par-
(1) The Toxic Substances Control Act ticipation in State and substate
plans.
(15 U.S.C. 2601 et seq.; disposal of chem-
ical substances and mixtures). (a) State and substate planning agen-
(2) The Federal Insecticide, Fun- cies shall:
gicide and Rodenticide Act (7 U.S.C. (1) Maintain a current list of agen-
1362 et seq.; disposal and storage of pes- cies, organizations, and individuals af-
ticides and pesticide containers). fected by or interested in the plan,
which shall include any parties that re-
(3) The Marine Protection, Research
quest to be on the list, the owner or op-
and Sanctuaries Act (33 U.S.C. 1420 et
erator of each facility classified as an
seq.; disposal in ocean waters). open dump and any other parties which
(l) The State plan shall provide for the State determines to be affected by
coordination, where practicable, with or interested in the plan;
programs of other Federal agencies, in- (2) Provide depositories of relevant
cluding: information in one or more convenient
(1) Department of the Interior. locations; and
(i) Fish and Wildlife Service (wet- (3) Prepare a responsiveness sum-
lands), mary, in accord with 40 CFR 25.8, where
(ii) Bureau of Mines and Office of required by this subpart or by an ap-
Surface Mining (mining waste disposal proved public participation work plan,
and use of sludge in reclamation), which describes matters on which the
(iii) U.S. Geological Survey (wet- public was consulted, summarizes the
lands, floodplains, ground water); public’s views, and sets forth the agen-
cy’s response to the public input.
(2) Department of Commerce, Na-
(b) State and substate planning agen-
tional Oceanic and Atmospheric Ad-
cies shall provide information and con-
ministration (coastal zone manage- sult with the public on plan develop-
ment plans); ment and implementation. Provision of
(3) Water Resources Council (flood- information and consultation shall
plains, surface and ground waters); occur both early in the planning proc-
(4) Department of Agriculture, in- ess (including the preparation and dis-
cluding Soil Conservation Service (land tribution of a summary of the proposed
spreading solid waste on food chain plan) and on major policy decisions
croplands); made during the course of plan devel-
(5) Federal Aviation Administration opment, revision and implementation.
(locating disposal facilities on or near To meet this requirement, planning
airport property); agencies shall:
(6) Department of Housing and Urban (1) Publicize information in news
Development (701 comprehensive plan- media having broad audiences in the
ning program, flood plains mapping); geographic area;
(7) Department of Defense (develop- (2) Place information in depositories
ment and implementation of State and maintained under paragraph (a)(2) of
substate plans with regard to resource this section;
(3) Send information directly to
recovery and solid waste disposal pro-
agencies, organizations and individuals
grams at various installations);
on the list maintained under paragraph
(8) Department of Energy (State en- (a)(1) of this section; and
ergy conservation plans under the En- (4) Prepare and make available to the
ergy Policy and Conservation Act (42 public a responsiveness summary in ac-
U.S.C. 6321)); and cord with 40 CFR 25.8.
(9) Other programs. (c) State and substate planning agen-
(m) The State plan shall provide for cies shall conduct public hearings (and
coordination, where practicable, with public meetings, where the agency de-
solid waste management plans in termines there is sufficient interest) in

neighboring States and with plans for accord with 40 CFR 25.5 and 25.6. The
Indian reservations in the State. purpose of the hearings and meetings is
409
§ 256.61 40 CFR Ch. I (7–1–21 Edition)
to solicit reactions and recommenda- the list maintained under § 256.60(a)(1)

tions from interested or affected par- and place the fact sheet in the State
ties and to explain major issues within information depositories maintained
the proposed plan. Following the public under § 256.60(a)(2).
hearings, a responsiveness summary
shall be prepared and made available to § 256.63 Requirements for public par-
the public in accord with 40 CFR 25.8. ticipation in the permitting of fa-
cilities.
[44 FR 45079, July 31, 1979, as amended at 46
FR 47051, Sept. 23, 1981] (a) Before approving a permit appli-
cation (or renewal of a permit) for a re-
§ 256.61 Requirements for public par- source recovery or solid waste disposal
ticipation in the annual State work facility the State shall hold a public
program. hearing to solicit public reaction and
(a) A public participation work plan recommendations on the proposed per-
in accord with 40 CFR 25.11 shall be in- mit application if the State determines
cluded in the annual State work pro- there is a significant degree of public
gram. interest in the proposed permit.
(b) The State shall consult with the (b) This hearing shall be held in ac-
public in the development of the an- cord with 40 CFR 25.5.
nual work program. One month prior
to submission of the draft work pro- § 256.64 Requirements for public par-
gram to the Regional Administrator, ticipation in the open dump inven-
as required by 40 CFR part 35, the draft tory.
work program shall be made available (a) The State shall provide an oppor-
to the public at the State information tunity for public participation prior to
depositories maintained under submission of any classification of a fa-
§ 256.60(a)(2). The public shall be noti- cility as an open dump to the Federal
fied of the availability of the draft Government. The State shall accom-
work program, and a public meeting plish this by providing notice as speci-
shall be held if the planning agency de- fied in § 256.64(b) or by using other
termines there is sufficient interest. State administrative procedures which
(c) The State shall comply with the provide equivalent public participa-
requirements of Office of Management tion.
and Budget Circular No. A–95. (b) The State may satisfy the re-
(d) Copies of the final work program quirement of § 256.64(a) by providing
shall be placed in the State informa- written notice of the availability of the
tion depositories maintained under results of its classifications to all
§ 256.60(a)(2). parties on the list required under
§ 256.60(a)(1) at least 30 days before ini-
§ 256.62 Requirements for public partial submission of these classifications
ticipation in State regulatory devel-
opment. to the Federal Government. For those
parties on the list required under
(a) The State shall conduct public § 256.60(a)(1) who are owners or opera-
hearings (and public meetings where tors of facilities classified as open
the State determines there is sufficient dumps, such notice shall indicate that
interest) on State legislation and regu- the facility has been so classified.
lations, in accord with the State ad-
ministrative procedures act, to solicit [46 FR 47052, Sept. 23, 1981]
reactions and recommendations. Fol-
lowing the public hearings, a respon- § 256.65 Recommendations for public
siveness summary shall be prepared participation.
and made available to the public in ac- (a) State and substate planning agen-
cord with 40 CFR 25.8. cies should establish an advisory
(b) In advance of the hearings and group, or utilize an existing group, to
meetings required by paragraph (a) of provide recommendations on major
this section, the State shall prepare a policy and program decisions. The ad-
fact sheet on proposed regulations or visory group’s membership should re-

legislation, mail the fact sheet to agen- flect a balanced viewpoint in accord
cies, organizations and individuals on with 40 CFR 25.7(c).
410
(b) State and substate planning agen- 257.29 [Reserved]

cies should develop public education
RECORDKEEPING REQUIREMENTS
programs designed to encourage in-
formed public participation in the de- 257.30 Recordkeeping requirements.
velopment and implementation of solid
waste management plans. Subpart C [Reserved]
[44 FR 45079, July 31, 1979. Redesignated and Subpart D—Standards for the Disposal of
amended at 46 FR 47052, Sept. 23, 1981] Coal Combustion Residuals in Landfills
and Surface Impoundments
PART 257—CRITERIA FOR CLASSI- GENERAL PROVISIONS
FICATION OF SOLID WASTE DIS-
POSAL FACILITIES AND PRAC- 257.51 Effective date of this subpart.
TICES 257.52 Applicability of other regulations.
257.53 Definitions.
Subpart A—Classification of Solid Waste
Disposal Facilities and Practices LOCATION RESTRICTIONS
257.60 Placement above the uppermost aqui-
Sec.
fer.
257.61 Wetlands.
257.2 Definitions.
257.3 Criteria for classification of solid 257.62 Fault areas.
waste disposal facilities and practices. 257.63 Seismic impact zones.
257.3–1 Floodplains. 257.64 Unstable areas.
257.3–2 Endangered species. DESIGN CRITERIA
257.3–3 Surface water.
257.3–4 Ground water. 257.70 Design criteria for new CCR landfills
257.3–5 Application to land used for the pro- and any lateral expansion of a CCR land-
duction of food-chain crops (interim fill.
final). 257.71 Liner design criteria for existing CCR
257.3–6 Disease. surface impoundments.
257.3–7 Air. 257.72 Design criteria for new CCR surface
257.3–8 Safety. impoundments and any lateral expansion
257.4 Effective date. of a CCR surface impoundment.
257.73 Structural integrity criteria for ex-
Subpart B—Disposal Standards for the Re- isting CCR surface impoundments.
ceipt of Very Small Quantity Generator 257.74 Structural integrity criteria for new
(VSQG) Wastes at Non-Municipal Non- CCR surface impoundments and any lat-
Hazardous Waste Disposal Units eral expansion of a CCR surface impound-
ment.
257.5 Disposal standards for owners/opera-
tors of non-municipal non-hazardous OPERATING CRITERIA
waste disposal units that receive Very 257.80 Air criteria.
Small Quantity Generator (VSQG) waste. 257.81 Run-on and run-off controls for CCR
landfills.
LOCATION RESTRICTIONS 257.82 Hydrologic and hydraulic capacity re-
257.7 [Reserved] quirements for CCR surface impound-
257.8 Floodplains. ments.
257.9 Wetlands. 257.83 Inspection requirements for CCR sur-
257.10–257.12 [Reserved] face impoundments.
257.13 Deadline for making demonstrations. 257.84 Inspection requirements for CCR
landfills.
GROUND-WATER MONITORING AND CORRECTIVE
ACTION GROUNDWATER MONITORING AND CORRECTIVE
ACTION
257.22 Ground-water monitoring systems. 257.90 Applicability.
257.23 Ground-water sampling and analysis 257.91 Groundwater monitoring systems.
requirements. 257.92 [Reserved]
257.24 Detection monitoring program. 257.93 Groundwater sampling and analysis
257.25 Assessment monitoring program. requirements.
257.26 Assessment of corrective measures. 257.94 Detection monitoring program.
257.27 Selection of remedy. 257.95 Assessment monitoring program.

257.28 Implementation of the corrective ac- 257.96 Assessment of corrective measures.
tion program. 257.97 Selection of remedy.
411
§ 257.1 40 CFR Ch. I (7–1–21 Edition)
257.98 Implementation of the corrective ac- sections 1008(a)(3) and 4004(a) of the
tion program. Act.
CLOSURE AND POST-CLOSURE CARE (1) Facilities failing to satisfy any of
the criteria in §§ 257.1 through 257.4 or
257.100 Inactive CCR surface impoundments. §§ 257.5 through 257.30 or §§ 257.50
257.101 Closure or retrofit of CCR units. through 257.107 are considered open
257.102 Criteria for conducting the closure
dumps, which are prohibited under sec-
or retrofit of CCR units.
257.103 Alternative closure requirements.
tion 4005 of the Act.
257.104 Post-closure care requirements. (2) Practices failing to satisfy any of
the criteria in §§ 257.1 through 257.4 or
RECORDKEEPING, NOTIFICATION, AND POSTING §§ 257.5 through 257.30 or §§ 257.50
OF INFORMATION TO THE INTERNET through 257.107 constitute open dump-
257.105 Recordkeeping requirements. ing, which is prohibited under section
257.106 Notification requirements. 4005 of the Act.
257.107 Publicly accessible internet site re- (b) These criteria also provide guide-
quirements. lines for the disposal of sewage sludge
APPENDIX I TO PART 257—MAXIMUM CONTAMI- on the land when the sewage sludge is
NANT LEVELS (MCLS) not used or disposed through a practice
APPENDIX II TO PART 257 regulated in 40 CFR part 503.
APPENDIX III TO PART 257—CONSTITUENTS FOR (c) These criteria apply to all solid
DETECTION MONITORING waste disposal facilities and practices
APPENDIX IV TO PART 257—CONSTITUENTS FOR
with the following exceptions:
ASSESSMENT MONITORING
(1) The criteria do not apply to agri-
AUTHORITY: 42 U.S.C. 6907(a)(3), 6912(a)(1), cultural wastes, including manures and
6944, 6945(a) and (d); 33 U.S.C. 1345(d) and (e). crop residues, returned to the soil as
SOURCE: 44 FR 53460, Sept. 13, 1979, unless fertilizers or soil conditioners.
otherwise noted. (2) The criteria do not apply to over-
burden resulting from mining oper-
Subpart A—Classification of Solid ations intended for return to the mine
Waste Disposal Facilities and site.
Practices (3) The criteria do not apply to the
land application of domestic sewage or
§ 257.1 Scope and purpose. treated domestic sewage.
(a) Unless otherwise provided, the (4) The criteria do not apply to the
criteria in §§ 257.1 through 257.4 are location and operation of septic tanks.
adopted for determining which solid The criteria do, however, apply to the
waste disposal facilities and practices disposal of septic tank pumpings.
pose a reasonable probability of ad- (5) The criteria do not apply to solid
verse effects on health or the environ- or dissolved materials in irrigation re-
ment under sections 1008(a)(3) and turn flows.
4004(a) of the Resource Conservation (6) The criteria do not apply to indus-
and Recovery Act (The Act). Unless trial discharges which are point
otherwise provided, the criteria in sources subject to permits under sec-
§§ 257.5 through 257.30 are adopted for tion 402 of the Clean Water Act, as
purposes of ensuring that non-munic- amended.
ipal non-hazardous waste disposal units (7) The criteria do not apply to
that receive very small quantity gener- source, special nuclear or byproduct
ator (VSQG) waste do not present risks material as defined by the Atomic En-
to human health and the environment ergy Act, as amended (68 Stat. 923).
taking into account the practicable ca- (8) The criteria do not apply to haz-
pability of such units in accordance ardous waste disposal facilities which
with section 4010(c) of the Act. Unless are subject to regulation under subtitle
otherwise provided, the criteria in C of the Act.
§§ 257.50 through 257.107 are adopted for (9) The criteria do not apply to dis-
determining which CCR landfills and posal of solid waste by underground
CCR surface impoundments pose a rea- well injection subject to the regula-
sonable probability of adverse effects tions (40 CFR part 146) for the Under-
on health or the environment under ground Injection Control Program
412
(UICP) under the Safe Drinking Water waste (defined in § 261.3 of this chapter)
Act, as amended, 42 U.S.C. 3007 et seq. or industrial solid waste (defined in
(10) The criteria of this part do not § 258.2 of this chapter). Only a C&D
apply to municipal solid waste landfill landfill that meets the requirements of
units, which are subject to the revised subpart B of this part may receive very
criteria contained in part 258 of this small quantity generator waste (de-
chapter. fined in § 260.10 of this chapter). A C&D
(11) The criteria do not apply to the landfill typically receives any one or
use or disposal sewage sludge on the more of the following types of solid
land when the sewage sludge is used or wastes: Roadwork material, excavated
disposed in accordance with 40 CFR material, demolition waste, construc-
part 503. tion/renovation waste, and site clear-
(12) Except as otherwise specifically ance waste.
provided in subpart D of this part, the Disposal means the discharge, de-
criteria in subpart A of this part do not posit, injection, dumping, spilling,
apply to CCR landfills, CCR surface im- leaking, or placing of any solid waste
poundments, and lateral expansions of or hazardous waste into or on any land
CCR units, as those terms are defined or water so that such solid waste or
in subpart D of this part. Such units hazardous waste or any constituent
are instead subject to subpart D of this thereof may enter the environment or
part. be emitted into the air or discharged
[44 FR 53460, Sept. 13, 1979, as amended at 46 into any waters, including ground
FR 47052, Sept. 23, 1981; 56 FR 51016, Oct. 9, waters.
1991; 58 FR 9385, Feb. 19, 1993; 61 FR 34269, Domestic septage is either liquid or
July 1, 1996; 80 FR 21467, Apr. 17, 2015; 81 FR solid material removed from a septic
85804, Nov. 28, 2016] tank, cesspool, portable toilet, Type III
marine sanitation device, or similar
§ 257.2 Definitions. treatment works that receives only do-
The definitions set forth in section mestic sewage. Domestic septage does
1004 of the Act apply to this part. Spe- not include liquid or solid material re-
cial definitions of general concern to moved from a septic tank, cesspool, or
this part are provided below, and defi- similar treatment works that receives
nitions especially pertinent to par- either commercial wastewater or in-
ticular sections of this part are pro- dustrial wastewater and does not in-
vided in those sections. clude grease removed from a grease
CCR landfill means an area of land or trap at a restaurant.
an excavation that receives CCR and Facility means all contiguous land
which is not a surface impoundment, and structures, other appurtenances,
an underground injection well, a salt and improvements on the land used for
dome formation, a salt bed formation, the disposal of solid waste.
an underground or surface coal mine, Land application unit means an area
or a cave. For purposes of this subpart, where wastes are applied onto or incor-
a CCR landfill also includes sand and porated into the soil surface (excluding
gravel pits and quarries that receive manure spreading operations) for agri-
CCR, CCR piles, and any practice that cultural purposes or for treatment and
does not meet the definition of a bene- disposal.
ficial use of CCR. Landfill means an area of land or an
CCR surface impoundment means a excavation in which wastes are placed
natural topographic depression, man- for permanent disposal, and that is not
made excavation, or diked area, which a land application unit, surface im-
is designed to hold an accumulation of poundment, injection well, or waste
CCR and liquids, and the unit treats, pile.
stores, or disposes of CCR. Leachate means liquid that has
Construction and demolition (C&D) passed through or emerged from solid
landfill means a solid waste disposal fa- waste and contains soluble, suspended
cility subject to the requirements of or miscible materials removed from
subparts A or B of this part that re- such wastes.

ceives construction and demolition Municipal solid waste landfill (MSWLF)
waste and does not receive hazardous unit means a discrete area of land or an
413
§ 257.3 40 CFR Ch. I (7–1–21 Edition)
excavation that receives household plant, water supply treatment plant, or

waste, and that is not a land applica- air pollution control facility and other
tion unit, surface impoundment, injec- discarded material, including solid, liq-
tion well, or waste pile, as those terms uid, semisolid, or contained gaseous
are defined in this section. A MSWLF material resulting from industrial,
unit also may receive other types of commercial, mining, and agricultural
RCRA Subtitle D wastes, such as com- operations, and from community ac-
mercial solid waste, nonhazardous tivities, but does not include solid or
sludge, and industrial solid waste. Such dissolved materials in domestic sew-
a landfill may be publicly or privately age, or solid or dissolved material in ir-
owned. A MSWLF unit may be a new rigation return flows or industrial dis-
MSWLF unit, an existing MSWLF unit charges which are point sources subject
or a lateral expansion. A construction to permits under section 402 of the Fed-
and demolition landfill that receives eral Water Pollution Control Act, as
residential lead-based paint waste and amended (86 Stat. 880), or source, spe-
does not receive any other household cial nuclear, or byproduct material as
waste is not a MSWLF unit. defined by the Atomic Energy Act of
Open dump means a facility for the 1954, as amended (68 Stat. 923).
disposal of solid waste which does not State means any of the several
comply with this part. States, the District of Columbia, the
Practice means the act of disposal of Commonwealth of Puerto Rico, the
solid waste. Virgin Islands, Guam, American
Residential lead-based paint waste Samoa, and the Commonwealth of the
means waste containing lead-based Northern Mariana Islands.
paint, which is generated as a result of Surface impoundment or impoundment
activities such as abatement, rehabili- means a facility or part of a facility
tation, renovation and remodeling in that is a natural topographic depres-
homes and other residences. The term sion, human-made excavation, or diked
residential lead-based paint waste in- area formed primarily of earthen mate-
cludes, but is not limited to, lead-based rials (although it may be lined with
paint debris, chips, dust, and sludges. human-made materials), that is de-
Sanitary landfill means a facility for signed to hold an accumulation of liq-
the disposal of solid waste which com- uid wastes or wastes containing free
plies with this part. liquids and that is not an injection
Sewage sludge means solid, semi-solid, well. Examples of surface impound-
or liquid residue generated during the ments are holding storage, settling,
treatment of domestic sewage in a and aeration pits, ponds, and lagoons.
treatment works. Sewage sludge in- Waste pile or pile means any non-
cludes, but is not limited to, domestic containerized accumulation of solid,
septage; scum or solids removed in pri- nonflowing waste that is used for treat-
mary, secondary, or advanced waste- ment or storage.
water treatment processes; and a mate- [44 FR 53460, Sept. 13, 1979; 44 FR 58910, Oct.
rial derived from sewage sludge. Sew- 12, 1979; 56 FR 51016, Oct. 9, 1991; 58 FR 9385,
age sludge does not include ash gen- Feb. 19, 1993; 68 FR 36495, June 18, 2003; 81 FR
erated during the firing of sewage 85804, Nov. 28, 2016]
sludge in a sewage sludge incinerator
or grit and screenings generated during § 257.3 Criteria for classification of
preliminary treatment of domestic solid waste disposal facilities and
sewage in a treatment works. practices.
Sludge means any solid, semisolid, or Solid waste disposal facilities or
liquid waste generated from a munic- practices which violate any of the fol-
ipal, commercial, or industrial waste- lowing criteria pose a reasonable prob-
water treatment plant, water supply ability of adverse effects on health or
treatment plant, or air pollution con- the environment:
trol facility or any other such waste
having similar characteristics and ef- § 257.3–1 Floodplains.
fect. (a) Facilities or practices in

Solid waste means any garbage, floodplains shall not restrict the flow
refuse, sludge from a waste treatment of the base flood, reduce the temporary
414
water storage capacity of the flood- (b) For purposes of section 4004(a) of
plain, or result in washout of solid the Act, a facility shall not cause a dis-
waste, so as to pose a hazard to human charge of dredged material or fill mate-
life, wildlife, or land or water re- rial to waters of the United States that
sources. is in violation of the requirements
(b) As used in this section: under section 404 of the Clean Water
(1) Based flood means a flood that has Act, as amended.
a 1 percent or greater chance of recur- (c) A facility or practice shall not
ring in any year or a flood of a mag- cause non-point source pollution of
nitude equalled or exceeded once in 100 waters of the United States that vio-
years on the average over a signifi- lates applicable legal requirements im-
cantly long period. plementing an areawide or Statewide
(2) Floodplain means the lowland and water quality management plan that
relatively flat areas adjoining inland has been approved by the Adminis-
and coastal waters, including flood- trator under section 208 of the Clean
prone areas of offshore islands, which Water Act, as amended.
are inundated by the base flood. (d) Definitions of the terms Discharge
(3) Washout means the carrying away of dredged material, Point source, Pollut-
of solid waste by waters of the base ant, Waters of the United States, and
flood. Wetlands can be found in the Clean
[44 FR 53460, Sept. 13, 1979; 44 FR 54708, Sept. Water Act, as amended, 33 U.S.C. 1251
21, 1979] et seq., and implementing regulations,
specifically 33 CFR part 323 (42 FR
§ 257.3–2 Endangered species. 37122, July 19, 1977).
(a) Facilities or practices shall not
cause or contribute to the taking of FR 47052, Sept. 23, 1981]
any endangered or threatened species
of plants, fish, or wildlife. § 257.3–4 Ground water.
(b) The facility or practice shall not
result in the destruction or adverse (a) A facility or practice shall not
modification of the critical habitat of contaminate an underground drinking
endangered or threatened species as water source beyond the solid waste
identified in 50 CFR part 17. boundary or beyond an alternative
(c) As used in this section: boundary specified in accordance with
(1) Endangered or threatened species paragraph (b) of this section.
means any species listed as such pursu- (b)(1) For purposes of section
ant to section 4 of the Endangered Spe- 1008(a)(3) of the Act or section 405(d) of
cies Act. the CWA, a party charged with open
(2) Destruction or adverse modification dumping or a violation of section 405(e)
means a direct or indirect alteration of with respect to sewage sludge that is
critical habitat which appreciably di- not used or disposed through a practice
minishes the likelihood of the survival regulated in 40 CFR part 503 may dem-
and recovery of threatened or endan- onstrate that compliance should be de-
gered species using that habitat. termined at an alternative boundary in
(3) Taking means harassing, harming, lieu of the solid waste boundary. The
pursuing, hunting, wounding, killing, court shall establish an alternative
trapping, capturing, or collecting or at- boundary only if it finds that such a
tempting to engage in such conduct. change would not result in contamina-
tion of ground water which may be
§ 257.3–3 Surface water. needed or used for human consumption.
(a) For purposes of section 4004(a) of This finding shall be based on analysis
the Act, a facility shall not cause a dis- and consideration of all of the fol-
charge of pollutants into waters of the lowing factors that are relevant:
United States that is in violation of (i) The hydrogeological characteris-
the requirements of the National Pol- tics of the facility and surrounding
lutant Discharge Elimination System land, including any natural attenu-

(NPDES) under section 402 of the Clean ation and dilution characteristics of
Water Act, as amended. the aquifer;
415
§ 257.3–5 40 CFR Ch. I (7–1–21 Edition)
(ii) The volume and physical and would exist at completion of the dis-
chemical characteristics of the leach- posal activity.
ate; [44 FR 53460, Sept. 13, 1979, as amended at 46
(iii) The quantity, quality, and direc- FR 47052, Sept. 23, 1981; 58 FR 9386, Feb. 19,
tion of flow of ground water underlying 1993]
the facility;
(iv) The proximity and withdrawal § 257.3–5 Application to land used for
rates of ground-water users; the production of food-chain crops
(v) The availability of alternative (interim final).
drinking water supplies; (a) Cadmium. A facility or practice
(vi) The existing quality of the concerning application of solid waste
ground water, including other sources to within one meter (three feet) of the
of contamination and their cumulative surface of land used for the production
impacts on the ground water; of food-chain crops shall not exist or
(vii) Public health, safety, and wel- occur, unless in compliance with all re-
fare effects. quirements of paragraphs (a)(1) (i)
(2) For purposes of sections 4004(a) through (iii) of this section or all re-
and 1008(a)(3), the State may establish quirements of paragraphs (a)(2) (i)
an alternative boundary for a facility through (iv) of this section.
to be used in lieu of the solid waste (1)(i) The pH of the solid waste and
boundary only if it finds that such a soil mixture is 6.5 or greater at the
change would not result in the con- time of each solid waste application,
tamination of ground water which may except for solid waste containing cad-
be needed or used for human consump- mium at concentrations of 2 mg/kg
tion. Such a finding shall be based on (dry weight) or less.
an analysis and consideration of all of (ii) The annual application of cad-
the factors identified in paragraph mium from solid waste does not exceed
(b)(1) of this section that are relevant. 0.5 kilograms per hectare (kg/ha) on
(c) As used in this section: land used for production of tobacco,
(1) Aquifer means a geologic forma- leafy vegetables or root crops grown
tion, group of formations, or portion of for human consumption. For other
a formation capable of yielding usable food-chain crops, the annual cadmium
quantities of ground water to wells or application rate does not exceed:
springs.
Annual Cd
(2) Contaminate means introduce a application
Time period
substance that would cause: rate (kg/
ha)
(i) The concentration of that sub-
stance in the ground water to exceed Present to June 30, 1984 .................................... 2.0
the maximum contaminant level speci- July 1, 1984 to December 31, 1986 .................... 1.25
Beginning January 1, 1987 ................................. 0.5
fied in appendix I, or
(ii) An increase in the concentration
(iii) The cumulative application of
of that substance in the ground water
cadmium from solid waste does not ex-
where the existing concentration of
ceed the levels in either paragraph
that substance exceeds the maximum
(a)(1)(iii)(A) or (B) of this section.
contaminant level specified in appen-
(A)
dix I.
(3) Ground water means water below Maximum cumulative
the land surface in the zone of satura- application (kg/ha)
tion. Soil cation exchange capacity Back- Back-
(meq/100g)
(4) Underground drinking water source ground soil ground soil
pH less pH more
means: than 6.5 than 6.5
(i) An aquifer supplying drinking
Less than 5 .................................... 5 5
water for human consumption, or 5 to 15 ........................................... 5 10
(ii) An aquifer in which the ground More than 15 ................................. 5 20
water contains less than 10,000 mg/1
total dissolved solids. (B) For soils with a background pH of
(5) Solid waste boundary means the less than 6.5, the cumulative cadmium
outermost perimeter of the solid waste application rate does not exceed the
(projected in the horizontal plane) as it levels below: Provided, That the pH of
416
the solid waste and soil mixture is ad- mined by sampling the soil to the
justed to and maintained at 6.5 or depth of cultivation or solid waste
greater whenever food-chain crops are placement, whichever is greater, and
grown. analyzing by the summation method
for distinctly acid soils or the sodium
Maximum
cumulative acetate method for neutral, calcareous
Soil cation exchange capacity (meq/100g) application or saline soils (‘‘Methods of Soil Anal-
(kg/ha)
ysis, Agronomy Monograph No. 9.’’ C.
Less than 5 .......................................................... 5 A. Black, ed., American Society of
5 to 15 ................................................................. 10 Agronomy, Madison, Wisconsin. pp 891–
More than 15 ....................................................... 20
901, 1965).
(4) Food-chain crops means tobacco,
(2)(i) The only food-chain crop pro-
crops grown for human consumption,
duced is animal feed.
and animal feed for animals whose
(ii) The pH of the solid waste and soil
products are consumed by humans.
mixture is 6.5 or greater at the time of
(5) Incorporated into the soil means the
solid waste application or at the time
injection of solid waste beneath the
the crop is planted, whichever occurs
surface of the soil or the mixing of
later, and this pH level is maintained
solid waste with the surface soil.
whenever food-chain crops are grown.
(6) Pasture crops means crops such as
(iii) There is a facility operating plan
legumes, grasses, grain stubble and sto-
which demonstrates how the animal
ver which are consumed by animals
feed will be distributed to preclude in-
while grazing.
gestion by humans. The facility oper-
(7) pH means the logarithm of the re-
ating plan describes the measures to be
ciprocal of hydrogen ion concentration.
taken to safeguard against possible
(8) Root crops means plants whose edi-
health hazards from cadmium entering
ble parts are grown below the surface
the food chain, which may result from
of the soil.
alternative land uses.
(9) Soil pH is the value obtained by
(iv) Future property owners are noti-
sampling the soil to the depth of cul-
fied by a stipulation in the land record
tivation or solid waste placement,
or property deed which states that the
whichever is greater, and analyzing by
property has received solid waste at
high cadmium application rates and the electrometric method. (‘‘Methods
that food-chain crops should not be of Soil Analysis, Agronomy Monograph
grown, due to a possible health hazard. No. 9,’’ C.A. Black, ed., American Soci-
(b) Polychlorinated Biphenyls (PCBs). ety of Agronomy, Madison, Wisconsin,
Solid waste containing concentrations pp. 914–926, 1965.)
of PCBs equal to or greater than 10 mg/ [44 FR 53460, Sept. 13, 1979; 44 FR 54708, Sept.
kg (dry weight) is incorporated into 21, 1979]
the soil when applied to land used for
producing animal feed, including pas- § 257.3–6 Disease.
ture crops for animals raised for milk. (a) Disease Vectors. The facility or
Incorporation of the solid waste into practice shall not exist or occur unless
the soil is not required if it is assured the on-site population of disease vec-
that the PCB content is less than 0.2 tors is minimized through the periodic
mg/kg (actual weight) in animal feed or application of cover material or other
less than 1.5 mg/kg (fat basis) in milk. techniques as appropriate so as to pro-
(c) As used in this section: tect public health.
(1) Animal feed means any crop grown (b) Sewage sludge and septic tank
for consumption by animals, such as pumpings (Interim Final). A facility or
pasture crops, forage, and grain. practice involving disposal of sewage
(2) Background soil pH means the pH sludge or septic tank pumpings shall
of the soil prior to the addition of sub- not exist or occur unless in compliance
stances that alter the hydrogen ion with paragraphs (b) (1), (2) or (3) of this
concentration. section.
(3) Cation exchange capacity means (1) Sewage sludge that is applied to
the sum of exchangeable cations a soil the land surface or is incorporated into
can absorb expressed in milli-equiva- the soil is treated by a Process to Sig-
lents per 100 grams of soil as deter- nificantly Reduce Pathogens prior to
417
§ 257.3–7 40 CFR Ch. I (7–1–21 Edition)
application or incorporation. Public (3) Incorporated into the soil means the
access to the facility is controlled for injection of solid waste beneath the
at least 12 months, and grazing by ani- surface of the soil or the mixing of
mals whose products are consumed by solid waste with the surface soil.
humans is prevented for at least one (4) Periodic application of cover mate-
month. Processes to Significantly Re- rial means the application and compac-
duce Pathogens are listed in appendix tion of soil or other suitable material
II, section A. (These provisions do not over disposed solid waste at the end of
apply to sewage sludge disposed of by a each operating day or at such fre-
trenching or burial operation.) quencies and in such a manner as to re-
(2) Septic tank pumpings that are ap-
duce the risk of fire and to impede vec-
plied to the land surface or incor-
tors access to the waste.
porated into the soil are treated by a
Process to Significantly Reduce Patho- (5) Trenching or burial operation
gens (as listed in appendix II, section means the placement of sewage sludge
A), prior to application or incorpora- or septic tank pumpings in a trench or
tion, unless public access to the facil- other natural or man-made depression
ity is controlled for at least 12 months and the covering with soil or other
and unless grazing by animals whose suitable material at the end of each op-
products are consumed by humans is erating day such that the wastes do not
prevented for at least one month. migrate to the surface.
(These provisions do not apply to sep-
[44 FR 53460, Sept. 13, 1979; 44 FR 54708, Sept.
tic tank pumpings disposed of by a 21, 1979]
trenching or burial operation.)
(3) Sewage sludge or septic tank § 257.3–7 Air.
pumpings that are applied to the land
surface or are incorporated into the (a) The facility or practice shall not
soil are treated by a Process to Further engage in open burning of residential,
Reduce Pathogens, prior to application commercial, institutional or industrial
or incorporation, if crops for direct solid waste. This requirement does not
human consumption are grown within apply to infrequent burning of agricul-
18 months subsequent to application or tural wastes in the field, silvicultural
incorporation. Such treatment is not wastes for forest management pur-
required if there is no contact between poses, land-clearing debris, diseased
the solid waste and the edible portion trees, debris from emergency clean-up
of the crop; however, in this case the operations, and ordnance.
solid waste is treated by a Process to (b) For purposes of section 4004(a) of
Significantly Reduce Pathogens, prior the Act, the facility shall not violate
to application; public access to the fa- applicable requirements developed
cility is controlled for at least 12 under a State Implementation Plan
months; and grazing by animals whose (SIP) approved or promulgated by the
products are consumed by humans is Administrator pursuant to section 110
prevented for at least one month. If of the Clean Air Act, as amended.
crops for direct human consumption
(c) As used in this section ‘‘open
are not grown within 18 months of ap-
plication or incorporation, the require- burning’’ means the combustion of
ments of paragraphs (b) (1) and (2) of solid waste without (1) control of com-
this section apply. Processes to Fur- bustion air to maintain adequate tem-
ther Reduce Pathogens are listed in ap- perature for efficient combustion, (2)
pendix II, section B. containment of the combustion reac-
(c) As used in this section: tion in an enclosed device to provide
(1) Crops for direct human consumption sufficient residence time and mixing
means crops that are consumed by hu- for complete combustion, and (3) con-
mans without processing to minimize trol of the emission of the combustion
pathogens prior to distribution to the products.
consumer.
[44 FR 53460, Sept. 13, 1979; 44 FR 54708, Sept.

(2) Disease vector means rodents, flies, 21, 1979, as amended at 46 FR 47052, Sept. 23,
and mosquitoes capable of transmit- 1981]
ting disease to humans.
418
§ 257.3–8 Safety. duce the risk of fire and to impede dis-

ease vectors’ access to the waste.
(a) Explosive gases. The concentration
(7) Putrescible wastes means solid
of explosive gases generated by the fa-
waste which contains organic matter
cility or practice shall not exceed:
capable of being decomposed by micro-
(1) Twenty-five percent (25%) of the organisms and of such a character and
lower explosive limit for the gases in proportion as to be capable of attract-
facility structures (excluding gas con- ing or providing food for birds.
trol or recovery system components);
and § 257.4 Effective date.
(2) The lower explosive limit for the These criteria become effective Octo-
gases at the property boundary. ber 15, 1979.
(b) Fires. A facility or practice shall
not pose a hazard to the safety of per-
sons or property from fires. This may
Subpart B—Disposal Standards for
be accomplished through compliance the Receipt of Very Small
with § 257.3–7 and through the periodic Quantity Generator (VSQG)
application of cover material or other Wastes at Non-Municipal
techniques as appropriate. Non-Hazardous Waste Dis-
(c) Bird hazards to aircraft. A facility posal Units
or practice disposing of putrescible
wastes that may attract birds and SOURCE: 61 FR 34269, July 1, 1996, unless
which occurs within 10,000 feet (3,048 otherwise noted.
meters) of any airport runway used by
turbojet aircraft or within 5,000 feet § 257.5 Disposal standards for owners/
(1,524 meters) of any airport runway operators of non-municipal non-
used by only piston-type aircraft shall hazardous waste disposal units that
receive Very Small Quantity Gener-
not pose a bird hazard to aircraft. ator (VSQG) waste.
(d) Access. A facility or practice shall
not allow uncontrolled public access so (a) Applicability. (1) The requirements
as to expose the public to potential in this section apply to owners/opera-
health and safety hazards at the dis- tors of any non-municipal non-haz-
posal site. ardous waste disposal unit that re-
ceives VSQG hazardous waste, as de-
(e) As used in this section:
fined in 40 CFR 260.10. Non-municipal
(1) Airport means public-use airport
non-hazardous waste disposal units
open to the public without prior per- that meet the requirements of this sec-
mission and without restrictions with- tion may receive VSQG wastes. Any
in the physical capacities of available owner/operator of a non-municipal non-
facilities. hazardous waste disposal unit that re-
(2) Bird hazard means an increase in ceives VSQG hazardous waste con-
the likelihood of bird/aircraft collisions tinues to be subject to the require-
that may cause damage to the aircraft ments in §§ 257.3–2, 257.3–3, 257.3–5, 257.3–
or injury to its occupants. 6, 257.3–7, and 257.3–8(a), (b), and (d).
(3) Explosive gas means methane (2) Any non-municipal non-hazardous
(CH4). waste disposal unit that is receiving
(4) Facility structures means any VSQG hazardous waste as of January 1,
buildings and sheds or utility or drain- 1998, must be in compliance with the
age lines on the facility. requirements in §§ 257.7 through 257.13
(5) Lower explosive limit means the and § 257.30 by January 1, 1998, and the
lowest percent by volume of a mixture requirements in §§ 257.21 through 257.28
of explosive gases which will propagate by July 1, 1998.
a flame in air at 25 °C and atmospheric (3) Any non-municipal non-hazardous
pressure. waste disposal unit that does not meet
(6) Periodic application of cover mate- the requirements in this section may
rial means the application and compac- not receive VSQG wastes.
tion of soil or other suitable material (4) Any non-municipal non-hazardous
over disposed solid waste at the end of waste disposal unit that is not receiv-
each operating day or at such fre- ing VSQG Hazardous waste as of Janu-
quencies and in such a manner as to re- ary 1, 1998, continues to be subject to
419
§ 257.7 40 CFR Ch. I (7–1–21 Edition)
the requirements in §§ 257.1 through LOCATION RESTRICTIONS

257.4.
(5) Any non-municipal non-hazardous § 257.7 [Reserved]
waste disposal unit that first receives
§ 257.8 Floodplains.
VSQG hazardous waste after January 1,
1998, must be in compliance with (a) Owners or operators of new units,
§§ 257.7 through 257.30 prior to the re- existing units, and lateral expansions
ceipt of VSQG hazardous waste. located in 100-year floodplains must
(b) Definitions. demonstrate that the unit will not re-
Active life means the period of oper- strict the flow of the 100-year flood, re-
ation beginning with the initial receipt duce the temporary water storage ca-
of solid waste and ending at the final pacity of the floodplain, or result in
receipt of solid waste. washout of solid waste so as to pose a
Existing unit means any non-munic- hazard to human health and the envi-
ronment. The owner or operator must
ipal non-hazardous waste disposal unit
place the demonstration in the oper-
that is receiving VSQG hazardous
ating record and notify the State Di-
waste as of January 1, 1998.
rector that it has been placed in the
Facility means all contiguous land
operating record.
and structures, other appurtenances,
(b) For purposes of this section:
and improvements on the land used for
(1) Floodplain means the lowland and
the disposal of non-municipal non-haz-
relatively flat areas adjoining inland
ardous waste.
and coastal waters, including flood-
Lateral expansion means a horizontal prone areas of offshore islands, that are
expansion of the waste boundaries of inundated by the 100-year flood.
an existing non-municipal non-haz-
(2) 100-year flood means a flood that
ardous waste disposal unit. has a 1-percent or greater chance of re-
New unit means any non-municipal curring in any given year or a flood of
non-hazardous waste disposal unit that a magnitude equalled or exceeded once
has not received VSQG hazardous in 100 years on the average over a sig-
waste prior to January 1, 1998. nificantly long period.
State means any of the several (3) Washout means the carrying away
States, the District of Columbia, the of solid waste by waters of the base
Commonwealth of Puerto Rico, the flood.
Virgin Islands, Guam, American
Samoa, and the Commonwealth of the § 257.9 Wetlands.
Northern Mariana Islands. (a) Owners or operators of new units
State Director means the chief admin- and lateral expansions shall not locate
istrative officer of the lead state agen- such units in wetlands, unless the
cy responsible for implementing the owner or operator can make the fol-
state permit program for 40 CFR part lowing demonstrations to the Director
257, subpart B and 40 CFR part 258 regu- of an approved State:
lated facilities. (1) Where applicable under section 404
Uppermost aquifer means the geologic of the Clean Water Act or applicable
formation nearest the natural ground State wetlands laws, the presumption
surface that is an aquifer, as well as, that a practicable alternative to the
lower aquifers that are hydraulically proposed landfill is available which
interconnected with this aquifer within does not involved wetlands is clearly
the facility’s property boundary. rebutted:
Waste management unit boundary (2) The construction and operation of
means a vertical surface located at the the unit will not:
hydraulically downgradient limit of (i) Cause or contribute to violations
the unit. This vertical surface extends of any applicable State water quality
down into the uppermost aquifer. standard;
[61 FR 34269, July 1, 1996, as amended at 63 (ii) Violate any applicable toxic efflu-
FR 57044, Oct. 23, 1998; 81 FR 85804, Nov. 28, ent standard or prohibition under Sec-
2016] tion 307 of the Clean Water Act;
420
(iii) Jeopardize the continued exist- §§ 257.10–257.12 [Reserved]

ence of endangered or threatened spe-
cies or result in the destruction or ad- § 257.13 Deadline for making dem-
verse modification of a critical habitat, onstrations.
protected under the Endangered Spe- Existing units that cannot make the
cies Act of 1973; and demonstration specified in § 257.8(a)
(iv) Violate any requirement under pertaining to floodplains by January 1,
the Marine Protection, Research, and 1998, must not accept VSQG hazardous
Sanctuaries Act of 1972 for the protec- waste for disposal.
tion of a marine sanctuary;
(3) The unit will not cause or con- [61 FR 34269, July 1, 1996, as amended at 81
tribute to significant degradation of FR 85805, Nov. 28, 2016]
wetlands. The owner/operator must GROUND-WATER MONITORING AND
demonstrate the integrity of the unit CORRECTIVE ACTION
and its ability to protect ecological re-
sources by addressing the following § 257.21 Applicability.
factors:
(i) Erosion, stability, and migration (a) The requirements in this section
potential of native wetland soils, muds apply to units identified in § 257.5(a),
and deposits used to support the unit; except as provided in paragraph (b) of
(ii) Erosion, stability, and migration this section.
potential of dredged and fill materials (b) Ground-water monitoring require-
used to support the unit; ments under §§ 257.22 through 257.25
(iii) The volume and chemical nature may be suspended by the Director of an
of the waste managed in the unit; approved State for a unit identified in
(iv) Impacts on fish, wildlife, and § 257.5(a) if the owner or operator can
other aquatic resources and their habi- demonstrate that there is no potential
tat from release of the waste; for migration of hazardous constitu-
(v) The potential effects of cata- ents from that unit to the uppermost
strophic release of waste to the wet- aquifer during the active life of the
land and the resulting impacts on the unit plus 30 years. This demonstration
environment; and must be certified by a qualified ground-
(vi) Any additional factors, as nec- water scientist and approved by the Di-
essary, to demonstrate that ecological rector of an approved State, and must
resources in the wetland are suffi- be based upon:
ciently protected. (1) Site-specific field collected meas-
(4) To the extent required under sec- urements, sampling, and analysis of
tion 404 of the Clean Water Act or ap- physical, chemical, and biological proc-
plicable State wetlands laws, steps esses affecting contaminant fate and
have been taken to attempt to achieve transport; and
no net loss of wetlands (as defined by (2) Contaminant fate and transport
acreage and function) by first avoiding predictions that maximize contami-
impacts to wetlands to the maximum nant migration and consider impacts
extent practicable as required by para- on human health and environment.
graph (a)(1) of this section, then mini- (c) Owners and operators of facilities
mizing unavoidable impacts to the identified in § 257.5(a) must comply
maximum extent practicable, and fi- with the ground-water monitoring re-
nally offsetting remaining unavoidable quirements of this section according to
wetland impacts through all appro- the following schedule unless an alter-
priate and practicable compensatory native schedule is specified under para-
mitigation actions (e.g., restoration of graph (d) of this section:
existing degraded wetlands or creation (1) Existing units and lateral expan-
of man-made wetlands); and sions must be in compliance with the
(5) Sufficient information is available ground-water monitoring requirements
to make a reasonable determination specified in §§ 257.22 through 257.25 by
with respect to these demonstrations. July 1, 1998.
(b) For purposes of this section, wet- (2) New units identified in § 257.5(a)
lands means those areas that are de- must be in compliance with the
fined in 40 CFR 232.2(r). ground-water monitoring requirements
421
§ 257.21 40 CFR Ch. I (7–1–21 Edition)
specified in §§ 257.22 through 257.25 be- demonstrating compliance with

fore waste can be placed in the unit. § 257.22(d)(2), pertaining to notification
(d) The Director of an approved State of placement of certification in oper-
may specify an alternative schedule for ating record; § 257.24(c)(1), pertaining to
the owners or operators of existing notification that statistically signifi-
units and lateral expansions to comply cant increase (SSI) notice is in oper-
with the ground-water monitoring re- ating record; § 257.24(c) (2) and (3), per-
quirements specified in §§ 257.22 taining to an assessment monitoring
through 257.25. This schedule must en- program; § 257.25(b), pertaining to sam-
sure that 50 percent of all existing pling and analyzing appendix II of part
units are in compliance by July 1, 1998, 258 constituents; § 257.25(d)(1), per-
and all existing units are in compli- taining to placement of notice (appen-
ance by July 1, 1999. In setting the dix II of 40 CFR part 258 constituents
compliance schedule, the Director of detected) in record and notification of
an approved State must consider po- notice in record; § 257.25(d)(2), per-
tential risks posed by the unit to taining to sampling for appendix I and
human health and the environment. II of 40 CFR part 258; § 257.25(g), per-
The following factors should be consid- taining to notification (and placement
ered in determining potential risk: of notice in record) of SSI above
(1) Proximity of human and environ- ground-water protection standard;
mental receptors; §§ 257.25(g)(1)(iv) and 257.26(a), per-
(2) Design of the unit; taining to assessment of corrective
(3) Age of the unit; measures; § 257.27(a), pertaining to se-
(4) The size of the unit; and lection of remedy and notification of
(5) Resource value of the underlying placement in record; § 257.28(c)(4), per-
aquifer, including: taining to notification of placement in
(i) Current and future uses; record (alternative corrective action
(ii) Proximity and withdrawal rate of measures); and § 257.28(f), pertaining to
users; and notification of placement in record
(iii) Ground-water quality and quan- (certification of remedy completed).
tity. (h) Directors of approved States can
(e) Once established at a unit, use the flexibility in paragraph (i) of
ground-water monitoring shall be con- this section for any non-municipal non-
ducted throughout the active life plus hazardous waste disposal unit that re-
30 years. The Director of an approved ceives VSQG waste, if the non-munic-
State may decrease the 30 year period ipal non-hazardous waste disposal unit:
if the owner/operator demonstrates (1) Disposes of less than 20 tons of
that a shorter period of time is ade- non-municipal waste daily, based on an
quate to protect human health and the annual average; and
environment and the Director approves (2) Has no evidence of ground-water
the demonstration. contamination; and either
(f) For the purposes of this section, a (3) Serves a community that experi-
qualified ground-water scientist is a ences an annual interruption of at
scientist or engineer who has received least three consecutive months of sur-
a baccalaureate or post-graduate de- face transportation that prevents ac-
gree in the natural sciences or engi- cess to a regional waste management
neering and has sufficient training and facility; or
experience in ground-water hydrology (4) Serves a community that has no
and related fields as may be dem- practicable waste management alter-
onstrated by State registration, profes- native and the non-municipal solid
sional Certifications, or completion of waste disposal facility is located in an
accredited university programs that area that annually receives less than
enable that individual to make sound or equal to 25 inches of precipitation.
professional judgments regarding (5) Owners/operators of any non-mu-
ground-water monitoring, contaminant nicipal non-hazardous waste disposal
fate and transport, and corrective-ac- unit that meets the criteria in para-
tion. graph (h) of this section must place in

(g) The Director of an approved State the operating record information dem-
may establish alternative schedules for onstrating this.
422
(i) Directors of approved States may sure corrective measures, where nec-
allow any non-municipal non-haz- essary, are undertaken in a timely
ardous waste disposal unit meeting the manner that protects human health
criteria in paragraph (h) of this section and the environment. The proposed
to: corrective measures are subject to re-
(1) Use alternatives to the ground- vision and approval by the Director of
water monitoring system prescribed in the approved State. The owner or oper-
§§ 257.22 through 257.25 so long as the al- ator must implement the corrective
ternatives will detect and, if necessary, measures according to a schedule es-
assess the nature or extent of contami- tablished by the Director of the ap-
nation from the non-municipal non- proved State.
hazardous waste disposal unit on a (3) When considering whether to
site-specific basis; or establish and use, allow alternatives to a ground-water
on a site-specific basis, an alternative monitoring system prescribed in
list of indicator parameters for some or §§ 257.22 through 257.25, including alter-
all of the constituents listed in appen- native indicator parameters, the Direc-
dix I (Appendix I of 40 CFR part 258. Al- tor of an approved State shall consider
ternative indicator parameters ap- at least the following factors:
proved by the Director of an approved (i) The geological and
State under this section must ensure hydrogeological characteristics of the
detection of contamination from the site;
non-municipal non-hazardous waste (ii) The impact of manmade and nat-
disposal unit. ural features on the effectiveness of an
(2) If contamination is detected alternative technology;
through the use of any alternative to (iii) Climatic factors that may influ-
the ground-water monitoring system ence the selection, use, and reliability
prescribed in §§ 257.22 through 257.25, of alternative ground-water monitoring
the non-municipal non-hazardous procedures; and
waste disposal unit owner or operator (iv) The effectiveness of indicator pa-
must perform expanded monitoring to rameters in detecting a release.
determine whether the detected con- (4) The Director of an approved State
tamination is an actual release from can require an owner or operator to
the non-municipal solid waste disposal comply with the requirements of
unit and, if so, to determine the nature §§ 257.22 through 257.25, where it is de-
and extent of the contamination. The termined by the Director that using al-
Director of the approved State shall es- ternatives to ground-water monitoring
tablish a schedule for the non-munic- approved under this paragraph are in-
ipal non-hazardous waste disposal unit adequate to detect contamination and,
owner or operator to submit results if necessary, to assess the nature and
from expanded monitoring in a manner extent of contamination.
that ensures protection of human [61 FR 34269, July 1, 1996, as amended at 81
health and the environment. FR 85805, Nov. 28, 2016]
(i) If expanded monitoring indicates
that contamination from the non-mu- § 257.22 Ground-water monitoring sys-
nicipal non-hazardous waste disposal tems.
unit has reached the saturated zone, (a) A ground-water monitoring sys-
the owner or operator must install tem must be installed that consists of
ground-water monitoring wells and a sufficient number of wells, installed
sample these wells in accordance with at appropriate locations and depths, to
§§ 257.22 through 257.25. yield ground-water samples from the
(ii) If expanded monitoring indicates uppermost aquifer (as defined in
that contamination from the non-mu- § 257.5(b)) that:
nicipal non-hazardous waste disposal (1) Represent the quality of back-
unit is present in the unsaturated zone ground ground water that has not been
or on the surface, the Director of an affected by leakage from a unit. A de-
approved State shall establish a sched- termination of background quality
ule for the owner or operator to submit may include sampling of wells that are
a description of any necessary correc- not hydraulically upgradient of the
tive measures. The schedule shall en- waste management area where:
423
§ 257.22 40 CFR Ch. I (7–1–21 Edition)
(i) Hydrogeologic conditions do not groundwater contamination in the up-

allow the owner or operator to deter- permost aquifer.
mine what wells are hydraulically (b) The Director of an approved State
upgradient; or may approve a multi-unit ground-
(ii) Sampling at other wells will pro- water monitoring system instead of
vide an indication of background separate ground-water monitoring sys-
ground-water quality that is as rep- tems for each unit when the facility
resentative or more representative has several units, provided the multi-
than that provided by the upgradient unit ground-water monitoring system
wells; and meets the requirement of § 257.22(a) and
(2) Represent the quality of ground will be as protective of human health
water passing the relevant point of and the environment as individual
compliance specified by the Director of monitoring systems for each unit,
an approved State or at the waste man- based on the following factors:
agement unit boundary in an unap- (1) Number, spacing, and orientation
proved State. The downgradient moni- of the units;
toring system must be installed at the (2) Hydrogeologic setting;
relevant point of compliance specified (3) Site history;
by the Director of an approved State or (4) Engineering design of the units;
at the waste management unit bound- and
ary in an unapproved State that en-
(5) Type of waste accepted at the
sures detection of ground-water con-
units.
tamination in the uppermost aquifer.
The relevant point of compliance speci- (c) Monitoring wells must be cased in
fied by the Director of an approved a manner that maintains the integrity
State shall be no more than 150 meters of the monitoring well bore hole. This
from the waste management unit casing must be screened or perforated
boundary and shall be located on land and packed with gravel or sand, where
owned by the owner of the facility. In necessary, to enable collection of
determining the relevant point of com- ground-water samples. The annular
pliance the State Director shall con- space (i.e., the space between the bore
sider at least the following factors: the hole and well casing) above the sam-
hydrogeologic characteristics of the pling depth must be sealed to prevent
unit and surrounding land, the volume contamination of samples and the
and physical and chemical characteris- ground water.
tics of the leachate, the quantity, qual- (1) The owner or operator must no-
ity and direction of flow of ground tify the State Director that the design,
water, the proximity and withdrawal installation, development, and decom-
rate of the ground-water users, the mission of any monitoring wells,
availability of alternative drinking piezometers and other measurement,
water supplies, the existing quality of sampling, and analytical devices docu-
the ground water, including other mentation has been placed in the oper-
sources of contamination and their cu- ating record; and
mulative impacts on the ground water, (2) The monitoring wells,
and whether the ground water is cur- piezometers, and other measurement,
rently used or reasonably expected to sampling, and analytical devices must
be used for drinking water, public be operated and maintained so that
health, safety, and welfare effects, and they perform to design specifications
practicable capability of the owner or throughout the life of the monitoring
operator. When physical obstacles pre- program.
clude installation of ground-water (d) The number, spacing, and depths
monitoring wells at the relevant point of monitoring systems shall be:
of compliance at existing units, the (1) Determined based upon site-spe-
down-gradient monitoring system may cific technical information that must
be installed at the closest practicable include thorough characterization of:
distance hydraulically down-gradient (i) Aquifer thickness, ground-water
from the relevant point of compliance flow rate, ground-water flow direction
specified by the Director of an ap- including seasonal and temporal fluc-
proved State that ensures detection of tuations in ground-water flow; and
424
(ii) Saturated and unsaturated geo- ground water is sampled. Ground-water

logic units and fill materials overlying elevations in wells which monitor the
the uppermost aquifer, materials com- same waste management area must be
prising the uppermost aquifer, and ma- measured within a period of time short
terials comprising the confining unit enough to avoid temporal variations in
defining the lower boundary of the up- ground-water flow which could pre-
permost aquifer; including, but not clude accurate determination of
limited to: thicknesses, stratigraphy, ground-water flow rate and direction.
lithology, hydraulic conductivities, (e) The owner or operator must es-
porosities and effective porosities. tablish background ground-water qual-
(2) Certified by a qualified ground- ity in a hydraulically upgradient or
water scientist or approved by the Di- background well(s) for each of the
rector of an approved State. Within 14 monitoring parameters or constituents
days of this certification, the owner or required in the particular ground-water
operator must notify the State Direc- monitoring program that applies to the
tor that the certification has been unit, as determined under § 257.24(a), or
placed in the operating record. § 257.25(a). Background ground-water
quality may be established at wells
§ 257.23 Ground-water sampling and that are not located hydraulically
analysis requirements. upgradient from the unit if it meets
(a) The ground-water monitoring pro- the requirements of § 257.22(a)(1).
gram must include consistent sampling (f) The number of samples collected
and analysis procedures that are de- to establish ground-water quality data
signed to ensure monitoring results must be consistent with the appro-
that provide an accurate representa- priate statistical procedures deter-
tion of ground-water quality at the mined pursuant to paragraph (g) of this
background and downgradient wells in- section. The sampling procedures shall
stalled in compliance with § 257.22(a). be those specified under § 257.24(b) for
The owner or operator must notify the detection monitoring, § 257.25 (b) and
State Director that the sampling and (d) for assessment monitoring, and
analysis program documentation has § 257.26(b) for corrective action.
been placed in the operating record and (g) The owner or operator must speci-
the program must include procedures fy in the operating record one of the
and techniques for: following statistical methods to be
(1) Sample collection; used in evaluating ground-water moni-
(2) Sample preservation and ship- toring data for each hazardous con-
ment; stituent. The statistical test chosen
(3) Analytical procedures; shall be conducted separately for each
(4) Chain of custody control; and hazardous constituent in each well.
(5) Quality assurance and quality (1) A parametric analysis of variance
control. (ANOVA) followed by multiple com-
(b) The ground-water monitoring pro- parisons procedures to identify statis-
gram must include sampling and ana- tically significant evidence of contami-
lytical methods that are appropriate nation. The method must include esti-
for ground-water sampling and that ac- mation and testing of the contrasts be-
curately measure hazardous constitu- tween each compliance well’s mean and
ents and other monitoring parameters the background mean levels for each
in ground-water samples. Ground-water constituent.
samples shall not be field-filtered prior (2) An analysis of variance (ANOVA)
to laboratory analysis. based on ranks followed by multiple
(c) The sampling procedures and fre- comparisons procedures to identify sta-
quency must be protective of human tistically significant evidence of con-
health and the environment. tamination. The method must include
(d) Ground-water elevations must be estimation and testing of the contrasts
measured in each well immediately between each compliance well’s median
prior to purging, each time ground and the background median levels for
water is sampled. The owner or oper- each constituent.

ator must determine the rate and di- (3) A tolerance or prediction interval
rection of ground-water flow each time procedure in which an interval for each
425
§ 257.23 40 CFR Ch. I (7–1–21 Edition)
constituent is established from the dis- and the environment. The parameters
tribution of the background data, and shall be determined after considering
the level of each constituent in each the number of samples in the back-
compliance well is compared to the ground data base, the data distribu-
upper tolerance or prediction limit. tion, and the range of the concentra-
(4) A control chart approach that tion values for each constituent of con-
gives control limits for each concern.
stituent. (4) If a tolerance interval or a
(5) Another statistical test method predictional interval is used to evalu-
that meets the performance standards ate ground-water monitoring data, the
of paragraph (h) of this section. The levels of confidence and, for tolerance
owner or operator must place a jus- intervals, the percentage of the popu-
tification for this alternative in the op-
lation that the interval must contain,
erating record and notify the State Di-
shall be protective of human health
rector of the use of this alternative
and the environment. These param-
test. The justification must dem-
eters shall be determined after consid-
onstrate that the alternative method
meets the performance standards of ering the number of samples in the
paragraph (h) of this section. background data base, the data dis-
(h) Any statistical method chosen tribution, and the range of the con-
under paragraph (g) of this section centration values for each constituent
shall comply with the following per- of concern.
formance standards, as appropriate: (5) The statistical method shall ac-
(1) The statistical method used to count for data below the limit of detec-
evaluate ground-water monitoring data tion with one or more statistical proce-
shall be appropriate for the distribu- dures that are protective of human
tion of chemical parameters or haz- health and the environment. Any prac-
ardous constituents. If the distribution tical quantitation limit (pql) that is
of the chemical parameters or haz- used in the statistical method shall be
ardous constituents is shown by the the lowest concentration level that can
owner or operator to be inappropriate be reliably achieved within specified
for a normal theory test, then the data limits of precision and accuracy during
should be transformed or a distribu- routine laboratory operating condi-
tion-free theory test should be used. If tions that are available to the facility.
the distributions for the constituents (6) If necessary, the statistical meth-
differ, more than one statistical method shall include procedures to control
od may be needed. or correct for seasonal and spatial vari-
(2) If an individual well comparison ability as well as temporal correlation
procedure is used to compare an indi- in the data.
vidual compliance well constituent
(i) The owner or operator must deter-
concentration with background con-
mine whether or not there is a statis-
stituent concentrations or a ground-
water protection standard, the test tically significant increase over back-
shall be done at a Type I error level no ground values for each parameter or
less than 0.01 for each testing period. If constituent required in the particular
a multiple comparisons procedure is ground-water monitoring program that
used, the Type I experiment wise error applies to the unit, as determined
rate for each testing period shall be no under §§ 257.24(a) or 257.25(a).
less than 0.05; however, the Type I (1) In determining whether a statis-
error of no less than 0.01 for individual tically significant increase has oc-
well comparisons must be maintained. curred, the owner or operator must
This performance standard does not compare the ground-water quality of
apply to tolerance intervals, prediction each parameter or constituent at each
intervals, or control charts. monitoring well designated pursuant to
(3) If a control chart approach is used § 257.22(a)(2) to the background value of
to evaluate ground-water monitoring that constituent, according to the sta-
data, the specific type of control chart tistical procedures and performance
and its associated parameter values standards specified under paragraphs
shall be protective of human health (g) and (h) of this section.
426
(2) Within a reasonable period of time must be collected and analyzed for the
after completing sampling and anal- appendix I (Appendix I of 40 CFR part
ysis, the owner or operator must deter- 258) constituents, or the alternative
mine whether there has been a statis- list approved in accordance with para-
tically significant increase over back- graph (a)(2) of this section, during the
ground at each monitoring well. first semiannual sampling event. At
least one sample from each well (back-
§ 257.24 Detection monitoring pro- ground and downgradient) must be col-
gram. lected and analyzed during subsequent
(a) Detection monitoring is required semiannual sampling events. The Di-
at facilities identified in § 257.5(a) at all rector of an approved State may speci-
ground-water monitoring wells defined fy an appropriate alternative frequency
under §§ 257.22 (a)(1) and (a)(2). At a for repeated sampling and analysis for
minimum, a detection monitoring pro- appendix I (Appendix I of 40 CFR part
gram must include the monitoring for 258) constituents, or the alternative
the constituents listed in appendix I of list approved in accordance with para-
40 CFR part 258. graph (a)(2) of this section, during the
(1) The Director of an approved State active life plus 30 years. The alter-
may delete any of the appendix I (Ap- native frequency during the active life
pendix I of 40 CFR part 258) monitoring shall be no less than annual. The alter-
parameters for a unit if it can be shown native frequency shall be based on con-
that the removed constituents are not sideration of the following factors:
reasonably expected to be contained in (1) Lithology of the aquifer and un-
or derived from the waste contained in saturated zone;
the unit. (2) Hydraulic conductivity of the aq-
(2) The Director of an approved State uifer and unsaturated zone;
may establish an alternative list of in- (3) Ground-water flow rates;
dicator parameters for a unit, in lieu of (4) Minimum distance between
some or all of the constituents in ap- upgradient edge of the unit and
pendix I to 40 CFR part 258, if the alter- downgradient monitoring well screen
native parameters provide a reliable (minimum distance of travel); and
indication of releases from the unit to (5) Resource value of the aquifer.
the ground water. In determining alter- (c) If the owner or operator deter-
native parameters, the Director shall mines, pursuant to § 257.23(g), that
consider the following factors: there is a statistically significant in-
(i) The types, quantities, and con- crease over background for one or more
centrations of constituents in waste of the constituents listed in appendix I
managed at the unit; to 40 CFR part 258, or in the alternative
(ii) The mobility, stability, and per- list approved in accordance with para-
sistence of waste constituents or their graph (a)(2) of this section, at any mon-
reaction products in the unsaturated itoring well at the boundary specified
zone beneath the unit; under § 257.22(a)(2), the owner or oper-
(iii) The detectability of indicator ator:
parameters, waste constituents, and re- (1) Must, within 14 days of this find-
action products in the ground water; ing, place a notice in the operating
and record indicating which constituents
(iv) The concentration or values and have shown statistically significant
coefficients of variation of monitoring changes from background levels, and
parameters or constituents in the notify the State Director that this no-
groundwater background. tice was placed in the operating record;
(b) The monitoring frequency for all and
constituents listed in appendix I to 40 (2) Must establish an assessment
CFR part 258, or in the alternative list monitoring program meeting the re-
approved in accordance with paragraph quirements of § 257.25 within 90 days ex-
(a)(2) of this section, shall be at least cept as provided for in paragraph (c)(3)
semiannual during the active life of of this section.
the unit plus 30 years. A minimum of (3) The owner/operator may dem-
four independent samples from each onstrate that a source other than the
well (background and downgradient) unit caused the contamination or that
427
§ 257.25 40 CFR Ch. I (7–1–21 Edition)
the statistically significant increase (c) The Director of an approved State

resulted from error in sampling, anal- may specify an appropriate alternate
ysis, statistical evaluation, or natural frequency for repeated sampling and
variation in ground-water quality. A analysis for the full set of appendix II
report documenting this demonstration (Appendix II of 40 CFR part 258) con-
must be certified by a qualified ground- stituents, or the alternative list ap-
water scientist or approved by the Di- proved in accordance with paragraph
rector of an approved State and be (b) of this section, during the active
placed in the operating record. If a suc- life plus 30 years considering the fol-
cessful demonstration is made and doc- lowing factors:
umented, the owner or operator may (1) Lithology of the aquifer and un-
continue detection monitoring as spec- saturated zone;
ified in this section. If, after 90 days, a (2) Hydraulic conductivity of the aq-
successful demonstration is not made, uifer and unsaturated zone;
the owner or operator must initiate an (3) Ground-water flow rates;
assessment monitoring program as re- (4) Minimum distance between
quired in § 257.25. upgradient edge of the unit and
downgradient monitoring well screen
§ 257.25 Assessment monitoring pro- (minimum distance of travel);
gram. (5) Resource value of the aquifer; and
(6) Nature (fate and transport) of any
(a) Assessment monitoring is re-
constituents detected in response to
quired whenever a statistically signifi-
this section.
cant increase over background has
(d) After obtaining the results from
been detected for one or more of the
the initial or subsequent sampling
constituents listed in appendix I of 40
events required in paragraph (b) of this
CFR part 258 or in the alternative list section, the owner or operator must:
approved in accordance with (1) Within 14 days, place a notice in
§ 257.24(a)(2). the operating record identifying the
(b) Within 90 days of triggering an as- appendix II (appendix II of 40 CFR part
sessment monitoring program, and an- 258) constituents that have been de-
nually thereafter, the owner or oper- tected and notify the State Director
ator must sample and analyze the that this notice has been placed in the
ground water for all constituents iden- operating record;
tified in appendix II of 40 CFR part 258. (2) Within 90 days, and on at least a
A minimum of one sample from each semiannual basis thereafter, resample
downgradient well must be collected all wells specified by § 257.22(a) to this
and analyzed during each sampling section, conduct analyses for all con-
event. For any constituent detected in stituents in appendix I (Appendix I of
the downgradient wells as the result of 40 CFR part 258) to this part or in the
the complete appendix II (Appendix II alternative list approved in accordance
of 40 CFR part 258) analysis, a min- with § 257.24(a)(2), and for those con-
imum of four independent samples stituents in appendix II to 40 CFR part
from each well (background and 258 that are detected in response to
downgradient) must be collected and paragraph (b) of this section, and
analyzed to establish background for record their concentrations in the fa-
the new constituents. The Director of cility operating record. At least one
an approved State may specify an ap- sample from each well (background and
propriate subset of wells to be sampled downgradient) must be collected and
and analyzed for appendix II (Appendix analyzed during these sampling events.
II of 40 CFR part 258) constituents dur- The Director of an approved State may
ing assessment monitoring. The Direc- specify an alternative monitoring fre-
tor of an approved State may delete quency during the active life plus 30
any of the appendix II (Appendix II of years for the constituents referred to
40 CFR part 258) monitoring param- in this paragraph. The alternative fre-
eters for a unit if it can be shown that quency for appendix I (appendix I of 40
the removed constituents are not rea- CFR part 258) constituents, or the al-
sonably expected to be in or derived ternative list approved in accordance
from the waste contained in the unit. with § 257.24(a)(2), during the active life
428
shall be no less than annual. The alter- accordance with paragraph (d)(2) of
native frequency shall be based on con- this section;
sideration of the factors specified in (iii) Must notify all persons who own
paragraph (c) of this section; the land or reside on the land that di-
(3) Establish background concentra- rectly overlies any part of the plume of
tions for any constituents detected contamination if contaminants have
pursuant to paragraphs (b) or (d)(2) of migrated off-site if indicated by sam-
this section; and pling of wells in accordance paragraph
(4) Establish ground-water protection (g)(1) of this section; and
standards for all constituents detected (iv) Must initiate an assessment of
pursuant to paragraph (b) or (d) of this corrective measures as required by
section. The ground-water protection § 257.26 within 90 days; or
standards shall be established in ac- (2) May demonstrate that a source
cordance with paragraphs (h) or (i) of other than the non-municipal non-haz-
this section. ardous waste disposal unit caused the
(e) If the concentrations of all appen- contamination, or that the statis-
dix II (appendix II of 40 CFR part 258) tically significant increase resulted
constituents are shown to be at or from error in sampling, analysis, sta-
below background values, using the tistical evaluation, or natural vari-
statistical procedures in § 257.23(g), for ation in ground-water quality. A report
two consecutive sampling events, the documenting this demonstration must
owner or operator must notify the be certified by a qualified ground-water
State Director of this finding and may scientist or approved by the Director of
return to detection monitoring. an approved State and placed in the op-
(f) If the concentrations of any ap- erating record. If a successful dem-
pendix II (appendix II of part 258) con- onstration is made the owner or oper-
stituents are above background values, ator must continue monitoring in ac-
but all concentrations are below the cordance with the assessment moni-
ground-water protection standard es- toring program pursuant to this
tablished under paragraphs (h) or (i) of § 257.25, and may return to detection
this section, using the statistical pro- monitoring if the appendix II (appendix
cedures in § 257.23(g), the owner or oper- II of 40 CFR part 258) constituents are
ator must continue assessment moni- at or below background as specified in
toring in accordance with this section. paragraph (e) of this section. Until a
(g) If one or more appendix II (appen- successful demonstration is made, the
dix II of CFR part 258) constituents are owner or operator must comply with
detected at statistically significant § 257.25(g) including initiating an as-
levels above the ground-water protec- sessment of corrective measures.
tion standard established under para- (h) The owner or operator must es-
graphs (h) or (i) of this section in any tablish a ground-water protection
sampling event, the owner or operator standard for each appendix II (appendix
must, within 14 days of this finding, II of 40 CFR part 258) constituent de-
place a notice in the operating record tected in the ground-water. The
identifying the appendix II (appendix II ground-water protection standard shall
of 40 CFR part 258) constituents that be:
have exceeded the ground-water pro- (1) For constituents for which a max-
tection standard and notify the State imum contaminant level (MCL) has
Director and all appropriate local gov- been promulgated under section 1412 of
ernment officials that the notice has the Safe Drinking Water Act (codified)
been placed in the operating record. under 40 CFR part 141, the MCL for
The owner or operator also: that constituent;
(1)(i) Must characterize the nature (2) For constituents for which MCLs
and extent of the release by installing have not been promulgated, the back-
additional monitoring wells as nec- ground concentration for the con-
essary; stituent established from wells in ac-
(ii) Must install at least one addi- cordance with § 257.22(a)(1); or
tional monitoring well at the facility (3) For constituents for which the
boundary in the direction of contami- background level is higher than the
nant migration and sample this well in MCL identified under subparagraph
429
§ 257.26 40 CFR Ch. I (7–1–21 Edition)
(h)(1) of this section or health based must initiate an assessment of correc-

levels identified under paragraph (i)(1) tive measures. Such an assessment
of this section, the background con- must be completed within a reasonable
centration. period of time.
(i) The Director of an approved State (b) The owner or operator must con-
may establish an alternative ground- tinue to monitor in accordance with
water protection standard for constitu- the assessment monitoring program as
ents for which MCLs have not been es- specified in § 257.25.
tablished. These ground-water protec- (c) The assessment shall include an
tion standards shall be appropriate analysis of the effectiveness of poten-
health based levels that satisfy the fol- tial corrective measures in meeting all
lowing criteria: of the requirements and objectives of
(1) The level is derived in a manner the remedy as described under § 257.27,
consistent with Agency guidelines for addressing at least the following:
assessing the health risks of environ- (1) The performance, reliability, ease
mental pollutants (51 FR 33992, 34006, of implementation, and potential im-
34014, 34028, September 24, 1986); pacts of appropriate potential rem-
(2) The level is based on scientifically edies, including safety impacts, cross-
valid studies conducted in accordance media impacts, and control of exposure
with the Toxic Substances Control Act to any residual contamination;
Good Laboratory Practice Standards (2) The time required to begin and
(40 CFR part 792) or equivalent; complete the remedy;
(3) For carcinogens, the level rep- (3) The costs of remedy implementa-
resents a concentration associated tion; and
with an excess lifetime cancer risk (4) The institutional requirements
level (due to continuous lifetime expo- such as State or local permit require-
sure) within the 1 × 10¥4 to 1 × 10¥6 ments or other environmental or public
range; and health requirements that may substan-
(4) For systemic toxicants, the level tially affect implementation of the
represents a concentration to which remedy(s).
the human population (including sen- (d) The owner or operator must dis-
sitive subgroups) could be exposed to cuss the results of the corrective meas-
on a daily basis that is likely to be ures assessment, prior to the selection
without appreciable risk of deleterious of remedy, in a public meeting with in-
effects during a lifetime. For purposes terested and affected parties.
of this subpart, systemic toxicants in-
clude toxic chemicals that cause ef- § 257.27 Selection of remedy.
fects other than cancer or mutation. (a) Based on the results of the correc-
(j) In establishing ground-water pro- tive measures assessment conducted
tection standards under paragraph (i) under § 257.26, the owner or operator
of this section, the Director of an ap- must select a remedy that, at a min-
proved State may consider the fol- imum, meets the standards listed in
lowing: paragraph (b) of this section. The
(1) Multiple contaminants in the owner or operator must notify the
ground water; State Director, within 14 days of se-
(2) Exposure threats to sensitive en- lecting a remedy, that a report describ-
vironmental receptors; and ing the selected remedy has been
(3) Other site-specific exposure or po- placed in the operating record and how
tential exposure to ground water. it meets the standards in paragraph (b)
of this section.
§ 257.26 Assessment of corrective (b) Remedies must:
measures. (1) Be protective of human health and
(a) Within 90 days of finding that any the environment;
of the constituents listed in appendix II (2) Attain the ground-water protec-
(appendix II of 40 CFR Part 258) have tion standard as specified pursuant to
been detected at a statistically signifi- §§ 257.25 (h) or (i);
cant level exceeding the ground-water (3) Control the source(s) of releases
protection standards defined under so as to reduce or eliminate, to the
§ 257.25 (h) or (i), the owner or operator maximum extent practicable, further
430
releases of appendix II (appendix II of consideration of the following types of

40 CFR part 258) constituents into the factors:
environment that may pose a threat to (i) Degree of difficulty associated
human health or the environment; and with constructing the technology;
(4) Comply with standards for man- (ii) Expected operational reliability
agement of wastes as specified in of the technologies;
§ 257.28(d). (iii) Need to coordinate with and ob-
(c) In selecting a remedy that meets tain necessary approvals and permits
the standards of § 257.27(b), the owner from other agencies;
or operator shall consider the following (iv) Availability of necessary equip-
evaluation factors: ment and specialists; and
(1) The long- and short-term effec- (v) Available capacity and location of
tiveness and protectiveness of the po- needed treatment, storage, and dis-
tential remedy(s), along with the de- posal services.
gree of certainty that the remedy will (4) Practicable capability of the
prove successful based on consideration owner or operator, including a consid-
of the following: eration of the technical and economic
(i) Magnitude of reduction of existing capability.
risks; (5) The degree to which community
(ii) Magnitude of residual risks in concerns are addressed by a potential
terms of likelihood of further releases remedy(s).
due to waste remaining following im- (d) The owner or operator shall speci-
plementation of a remedy; fy as part of the selected remedy a
(iii) The type and degree of long-term schedule(s) for initiating and com-
management required, including moni- pleting remedial activities. Such a
toring, operation, and maintenance; schedule must require the initiation of
(iv) Short-term risks that might be remedial activities within a reasonable
posed to the community, workers, or period of time taking into consider-
the environment during implementa- ation the factors set forth in para-
tion of such a remedy, including poten- graphs (d)(1) through (d)(8) of this sec-
tial threats to human health and the tion. The owner or operator must con-
environment associated with exca- sider the following factors in deter-
vation, transportation, and re-disposal mining the schedule of remedial activi-
or containment; ties:
(v) Time until full protection is (1) Extent and nature of contamina-
achieved; tion;
(vi) Potential for exposure of humans (2) Practical capabilities of remedial
and environmental receptors to re- technologies in achieving compliance
maining wastes, considering the poten- with ground-water protection stand-
tial threat to human health and the en- ards established under §§ 257.25 (g) or
vironment associated with excavation, (h) and other objectives of the remedy;
transportation, re-disposal, or contain- (3) Availability of treatment or dis-
ment; posal capacity for wastes managed dur-
(vii) Long-term reliability of the en- ing implementation of the remedy;
gineering and institutional controls; (4) Desirability of utilizing tech-
and nologies that are not currently avail-
(viii) Potential need for replacement able, but which may offer significant
of the remedy. advantages over already available
(2) The effectiveness of the remedy in technologies in terms of effectiveness,
controlling the source to reduce fur- reliability, safety, or ability to achieve
ther releases based on consideration of remedial objectives;
the following factors: (5) Potential risks to human health
(i) The extent to which containment and the environment from exposure to
practices will reduce further releases; contamination prior to completion of
(ii) The extent to which treatment the remedy;
technologies may be used. (6) Resource value of the aquifer in-

(3) The ease or difficulty of imple- cluding:
menting a potential remedy(s) based on (i) Current and future uses;
431
§ 257.28 40 CFR Ch. I (7–1–21 Edition)
(ii) Proximity and withdrawal rate of the ground-water to concentrations

users; that are technically practicable and
(iii) Ground-water quantity and qual- significantly reduce threats to human
ity; health or the environment.
(iv) The potential damage to wildlife,
crops, vegetation, and physical struc- § 257.28 Implementation of the correc-
tures caused by exposure to waste con- tive action program.
stituent; (a) Based on the schedule established
(v) The hydrogeologic characteristic under § 257.27(d) for initiation and com-
of the unit and surrounding land; pletion of remedial activities the
(vi) Ground-water removal and treat- owner/operator must:
ment costs; and (1) Establish and implement a correc-
(vii) The cost and availability of al- tive action ground-water monitoring
ternative water supplies. program that:
(7) Practicable capability of the (i) At a minimum, meets the require-
owner or operator. ments of an assessment monitoring
(8) Other relevant factors. program under § 257.25;
(e) The Director of an approved State (ii) Indicates the effectiveness of the
may determine that remediation of a corrective action remedy; and
release of an appendix II (appendix II of (iii) Demonstrates compliance with
40 CFR part 258) constituent from the ground-water protection standard pur-
unit is not necessary if the owner or suant to paragraph (e) of this section.
operator demonstrates to the Director (2) Implement the corrective action
of the approved state that: remedy selected under § 257.27; and
(1) The ground-water is additionally (3) Take any interim measures nec-
contaminated by substances that have essary to ensure the protection of
originated from a source other than human health and the environment. In-
the unit and those substances are terim measures should, to the greatest
present in concentrations such that extent practicable, be consistent with
cleanup of the release from the unit the objectives of and contribute to the
would provide no significant reduction performance of any remedy that may
in risk to actual or potential receptors; be required pursuant to § 257.27. The
or following factors must be considered by
(2) The constituent(s) is present in an owner or operator in determining
ground water that: whether interim measures are nec-
(i) Is not currently or reasonably ex- essary:
pected to be a source of drinking water; (i) Time required to develop and im-
and plement a final remedy;
(ii) Is not hydraulically connected (ii) Actual or potential exposure of
with waters to which the hazardous nearby populations or environmental
constituents are migrating or are like- receptors to hazardous constituents;
ly to migrate in a concentration(s) (iii) Actual or potential contamina-
that would exceed the ground-water tion of drinking water supplies or sen-
protection standards established under sitive ecosystems;
§ 257.25 (h) or (i); or (iv) Further degradation of the
(3) Remediation of the release(s) is ground-water that may occur if reme-
technically impracticable; or dial action is not initiated expedi-
(4) Remediation results in unaccept- tiously;
able cross-media impacts. (v) Weather conditions that may
(f) A determination by the Director cause hazardous constituents to mi-
of an approved State pursuant to para- grate or be released;
graph (e) of this section shall not affect (vi) Risks of fire or explosion, or po-
the authority of the State to require tential for exposure to hazardous con-
the owner or operator to undertake stituents as a result of an accident or
source control measures or other meas- failure of a container or handling sys-
ures that may be necessary to elimi- tem; and
nate or minimize further releases to (vii) Other situations that may pose
the ground-water, to prevent exposure threats to human health and the envi-
to the ground-water, or to remediate ronment.
432
(b) An owner or operator may deter- or (i) at all points within the plume of
mine, based on information developed contamination that lie beyond the
after implementation of the remedy ground-water monitoring well system
has begun or other information, that established under § 257.22(a).
compliance with requirements of (2) Compliance with the ground-water
§ 257.27(b) are not being achieved protection standards established under
through the remedy selected. In such §§ 257.25 (h) or (i) has been achieved by
cases, the owner or operator must im- demonstrating that concentrations of
plement other methods or techniques appendix II (appendix II of Part 258)
that could practicably achieve compli- constituents have not exceeded the
ance with the requirements, unless the ground-water protection standard(s)
owner or operator makes the deter- for a period of three consecutive years
mination under § 257.28(c). using the statistical procedures and
(c) If the owner or operator deter- performance standards in § 257.23 (g)
mines that compliance with require- and (h). The Director of an approved
ments under § 257.27(b) cannot be prac- State may specify an alternative
tically achieved with any currently length of time during which the owner
available methods, the owner or oper- or operator must demonstrate that
ator must: concentrations of appendix II (appendix
(1) Obtain certification of a qualified II of 40 CFR part 258) constituents have
ground-water scientist or approval by not exceeded the ground-water protec-
the Director of an approved State that tion standard(s) taking into consider-
compliance with requirements under ation:
§ 257.27(b) cannot be practically (i) Extent and concentration of the
achieved with any currently available release(s);
methods; (ii) Behavior characteristics of the
(2) Implement alternate measures to hazardous constituents in the ground-
control exposure of humans or the en- water;
vironment to residual contamination, (iii) Accuracy of monitoring or mod-
as necessary to protect human health eling techniques, including any sea-
and the environment; and sonal, meteorological, or other envi-
(3) Implement alternate measures for ronmental variabilities that may affect
control of the sources of contamina- the accuracy; and
tion, or for removal or decontamina- (iv) Characteristics of the ground-
tion of equipment, units, devices, or water.
structures that are: (3) All actions required to complete
(i) Technically practicable; and the remedy have been satisfied.
(ii) Consistent with the overall objec- (f) Upon completion of the remedy,
tive of the remedy. the owner or operator must notify the
(4) Notify the State Director within State Director within 14 days that a
14 days that a report justifying the al- certification that the remedy has been
ternative measures prior to imple- completed in compliance with the re-
menting the alternative measures has quirements of § 257.28(e) has been placed
been placed in the operating record. in the operating record. The certifi-
(d) All solid wastes that are managed cation must be signed by the owner or
pursuant to a remedy required under operator and by a qualified ground-
§ 257.27, or an interim measure required water scientist or approved by the Di-
under § 257.28(a)(3), shall be managed in rector of an approved State.
a manner:
(1) That is protective of human § 257.29 [Reserved]
health and the environment; and
(2) That complies with applicable RECORDKEEPING REQUIREMENTS
RCRA requirements.
(e) Remedies selected pursuant to § 257.30 Recordkeeping requirements.
§ 257.27 shall be considered complete (a) The owner/operator of a non-mu-
when: nicipal non-hazardous waste disposal
(1) The owner or operator complies unit must record and retain near the
with the ground-water protection facility in an operating record or in an
standards established under §§ 257.25 (h) alternative location approved by the
433
§ 257.50 40 CFR Ch. I (7–1–21 Edition)
Director of an approved State the fol- ing any lateral expansions of such
lowing information as it becomes units that dispose or otherwise engage
available: in solid waste management of CCR gen-
(1) Any location restriction dem- erated from the combustion of coal at
onstration required under §§ 257.7 electric utilities and independent
through 257.12; and power producers. Unless otherwise pro-
(2) Any demonstration, certification, vided in this subpart, these require-
finding, monitoring, testing, or analyt- ments also apply to disposal units lo-
ical data required in §§ 257.21 through cated off-site of the electric utility or
257.28. independent power producer. This sub-
(b) The owner/operator must notify part also applies to any practice that
the State Director when the documents does not meet the definition of a bene-
from paragraph (a) of this section have ficial use of CCR.
been placed or added to the operating (c) This subpart also applies to inac-
record, and all information contained tive CCR surface impoundments at ac-
in the operating record must be fur- tive electric utilities or independent
nished upon request to the State Direc- power producers, regardless of the fuel
tor or be made available at all reason- currently used at the facility to
able times for inspection by the State produce electricity.
Director. (d) This subpart does not apply to
(c) The Director of an approved State CCR landfills that have ceased receiv-
can set alternative schedules for rec- ing CCR prior to October 19, 2015.
ordkeeping and notification require-
(e) This subpart does not apply to
ments as specified in paragraphs (a)
electric utilities or independent power
and (b) of this section, except for the
producers that have ceased producing
notification requirements in
electricity prior to October 19, 2015.
§ 257.25(g)(1)(iii).
(d) The Director of an approved state (f) This subpart does not apply to
program may receive electronic docu- wastes, including fly ash, bottom ash,
ments only if the state program in- boiler slag, and flue gas desulfurization
cludes the requirements of 40 CFR Part materials generated at facilities that
3—(Electronic reporting). are not part of an electric utility or
independent power producer, such as
[44 FR 53460, Sept. 13, 1979, as amended at 70 manufacturing facilities, universities,
FR 59888, Oct. 13, 2005] and hospitals. This subpart also does
not apply to fly ash, bottom ash, boiler
Subpart C [Reserved] slag, and flue gas desulfurization mate-
rials, generated primarily from the
Subpart D—Standards for the Dis- combustion of fuels (including other
posal of Coal Combustion Re- fossil fuels) other than coal, for the
siduals in Landfills and Sur- purpose of generating electricity un-
face Impoundments less the fuel burned consists of more
than fifty percent (50%) coal on a total
heat input or mass input basis, which-
SOURCE: 80 FR 21468, Apr. 17, 2015, unless ever results in the greater mass feed
otherwise noted.
rate of coal.
§ 257.50 Scope and purpose. (g) This subpart does not apply to
practices that meet the definition of a
(a) This subpart establishes min-
beneficial use of CCR.
imum national criteria for purposes of
determining which solid waste disposal (h) This subpart does not apply to
facilities and solid waste management CCR placement at active or abandoned
practices do not pose a reasonable underground or surface coal mines.
probability of adverse effects on health (i) This subpart does not apply to
or the environment under sections municipal solid waste landfills that re-
1008(a)(3) and 4004(a) of the Resource ceive CCR.
Conservation and Recovery Act.
(b) This subpart applies to owners § 257.51 Effective date of this subpart.
and operators of new and existing land- The requirements of this subpart
fills and surface impoundments, includ- take effect on October 19, 2015.
434
§ 257.52 Applicability of other regula- surface, and the capacity or volume, in

tions. acre-feet, of the water contained in the
(a) Compliance with the require- reservoir at various elevations.
ments of this subpart does not affect Areas susceptible to mass movement
the need for the owner or operator of a means those areas of influence (i.e.,
CCR landfill, CCR surface impound- areas characterized as having an active
ment, or lateral expansion of a CCR or substantial possibility of mass
unit to comply with all other applica- movement) where, because of natural
ble federal, state, tribal, or local laws or human-induced events, the move-
or other requirements. ment of earthen material at, beneath,
(b) Any CCR landfill, CCR surface im- or adjacent to the CCR unit results in
poundment, or lateral expansion of a the downslope transport of soil and
CCR unit continues to be subject to the rock material by means of gravita-
requirements in §§ 257.3–1, 257.3–2, and tional influence. Areas of mass move-
257.3–3. ment include, but are not limited to,
§ 257.53 Definitions. landslides, avalanches, debris slides
and flows, soil fluctuation, block slid-
The following definitions apply to ing, and rock fall.
this subpart. Terms not defined in this
Beneficial use of CCR means the CCR
section have the meaning given by
RCRA. meet all of the following conditions:
Acre foot means the volume of one (1) The CCR must provide a func-
acre of surface area to a depth of one tional benefit;
foot. (2) The CCR must substitute for the
Active facility or active electric utilities use of a virgin material, conserving
or independent power producers means natural resources that would otherwise
any facility subject to the require- need to be obtained through practices,
ments of this subpart that is in oper- such as extraction;
ation on October 19, 2015. An electric (3) The use of the CCR must meet rel-
utility or independent power producer evant product specifications, regu-
is in operation if it is generating elec- latory standards or design standards
tricity that is provided to electric when available, and when such stand-
power transmission systems or to elec- ards are not available, the CCR is not
tric power distribution systems on or used in excess quantities; and
after October 19, 2015. An off-site dis- (4) When unencapsulated use of CCR
posal facility is in operation if it is ac- involving placement on the land of
cepting or managing CCR on or after 12,400 tons or more in non-roadway ap-
October 19, 2015. plications, the user must demonstrate
Active life or in operation means the and keep records, and provide such doc-
period of operation beginning with the umentation upon request, that envi-
initial placement of CCR in the CCR ronmental releases to groundwater,
unit and ending at completion of clo- surface water, soil and air are com-
sure activities in accordance with
parable to or lower than those from
§ 257.102.
analogous products made without CCR,
Active portion means that part of the
or that environmental releases to
CCR unit that has received or is receiv-
groundwater, surface water, soil and
ing CCR or non-CCR waste and that has
not completed closure in accordance air will be at or below relevant regu-
with § 257.102. latory and health-based benchmarks
Aquifer means a geologic formation, for human and ecological receptors
group of formations, or portion of a during use.
formation capable of yielding usable Closed means placement of CCR in a
quantities of groundwater to wells or CCR unit has ceased, and the owner or
springs. operator has completed closure of the
Area-capacity curves means graphic CCR unit in accordance with § 257.102
curves which readily show the res- and has initiated post-closure care in
ervoir water surface area, in acres, at accordance with § 257.104.

different elevations from the bottom of Coal combustion residuals (CCR) means
the reservoir to the maximum water fly ash, bottom ash, boiler slag, and
435
§ 257.53 40 CFR Ch. I (7–1–21 Edition)
flue gas desulfurization materials gen- any waters, including groundwaters.

erated from burning coal for the pur- For purposes of this subpart, disposal
pose of generating electricity by elec- does not include the storage or the ben-
tric utilities and independent power eficial use of CCR.
producers. Downstream toe means the junction of
CCR fugitive dust means solid air- the downstream slope or face of the
borne particulate matter that contains CCR surface impoundment with the
or is derived from CCR, emitted from ground surface.
any source other than a stack or chim- Eligible unlined CCR surface impound-
ney. ment means an existing CCR surface
CCR landfill or landfill means an area impoundment that meets all of the fol-
of land or an excavation that receives lowing conditions:
CCR and which is not a surface im- (1) The owner or operator has docu-
poundment, an underground injection mented that the CCR unit is in compli-
well, a salt dome formation, a salt bed ance with the location restrictions
formation, an underground or surface specified under §§ 257.60 through 257.64;
coal mine, or a cave. For purposes of
(2) The owner or operator has docu-
this subpart, a CCR landfill also in-
mented that the CCR unit is in compli-
cludes sand and gravel pits and quar-
ance with the periodic safety factor as-
ries that receive CCR, CCR piles, and
sessment requirements under § 257.73(e)
any practice that does not meet the
and (f); and
definition of a beneficial use of CCR.
CCR pile or pile means any non-con- (3) No constituent listed in Appendix
tainerized accumulation of solid, non- IV to this part has been detected at a
flowing CCR that is placed on the land. statistically significant level exceeding
CCR that is beneficially used off-site is a groundwater protection standard de-
not a CCR pile. fined under § 257.95(h).
CCR surface impoundment or impound- Encapsulated beneficial use means a
ment means a natural topographic de- beneficial use of CCR that binds the
pression, man-made excavation, or CCR into a solid matrix that minimizes
diked area, which is designed to hold its mobilization into the surrounding
an accumulation of CCR and liquids, environment.
and the unit treats, stores, or disposes Existing CCR landfill means a CCR
of CCR. landfill that receives CCR both before
CCR unit means any CCR landfill, and after October 19, 2015, or for which
CCR surface impoundment, or lateral construction commenced prior to Octo-
expansion of a CCR unit, or a combina- ber 19, 2015 and receives CCR on or
tion of more than one of these units, after October 19, 2015. A CCR landfill
based on the context of the para- has commenced construction if the
graph(s) in which it is used. This term owner or operator has obtained the fed-
includes both new and existing units, eral, state, and local approvals or per-
unless otherwise specified. mits necessary to begin physical con-
Dike means an embankment, berm, or struction and a continuous on-site,
ridge of either natural or man-made physical construction program had
materials used to prevent the move- begun prior to October 19, 2015.
ment of liquids, sludges, solids, or Existing CCR surface impoundment
other materials. means a CCR surface impoundment
Displacement means the relative that receives CCR both before and after
movement of any two sides of a fault October 19, 2015, or for which construc-
measured in any direction. tion commenced prior to October 19,
Disposal means the discharge, de- 2015 and receives CCR on or after Octo-
posit, injection, dumping, spilling, ber 19, 2015. A CCR surface impound-
leaking, or placing of any solid waste ment has commenced construction if
as defined in section 1004(27) of the Re- the owner or operator has obtained the
source Conservation and Recovery Act federal, state, and local approvals or
into or on any land or water so that permits necessary to begin physical
such solid waste, or constituent there- construction and a continuous on-site,

of, may enter the environment or be physical construction program had
emitted into the air or discharged into begun prior to October 19, 2015.
436
Facility means all contiguous land, vironmental losses. Losses are prin-
and structures, other appurtenances, cipally limited to the surface impound-
and improvements on the land, used for ment owner’s property.
treating, storing, disposing, or other- (3) Significant hazard potential CCR
wise conducting solid waste manage- surface impoundment means a diked sur-
ment of CCR. A facility may consist of face impoundment where failure or
several treatment, storage, or disposal mis-operation results in no probable
operational units (e.g., one or more loss of human life, but can cause eco-
landfills, surface impoundments, or nomic loss, environmental damage, dis-
combinations of them). ruption of lifeline facilities, or impact
Factor of safety (Safety factor) means other concerns.
the ratio of the forces tending to resist Height means the vertical measure-
the failure of a structure to the forces ment from the downstream toe of the
tending to cause such failure as deter- CCR surface impoundment at its lowest
mined by accepted engineering prac- point to the lowest elevation of the
tice. crest of the CCR surface impoundment.
Fault means a fracture or a zone of Holocene means the most recent
fractures in any material along which epoch of the Quaternary period, ex-
strata on one side have been displaced tending from the end of the Pleistocene
with respect to that on the other side. Epoch, at 11,700 years before present, to
Flood hydrograph means a graph present.
showing, for a given point on a stream, Hydraulic conductivity means the rate
the discharge, height, or other char- at which water can move through a
acteristic of a flood as a function of permeable medium (i.e., the coefficient
time. of permeability).
Freeboard means the vertical distance
Inactive CCR surface impoundment
between the lowest point on the crest
means a CCR surface impoundment
of the impoundment dike and the sur-
that no longer receives CCR on or after
face of the waste contained therein.
October 19, 2015 and still contains both
Free liquids means liquids that read-
CCR and liquids on or after October 19,
ily separate from the solid portion of a
2015.
waste under ambient temperature and
pressure. Incised CCR surface impoundment
Groundwater means water below the means a CCR surface impoundment
land surface in a zone of saturation. which is constructed by excavating en-
Hazard potential classification means tirely below the natural ground sur-
the possible adverse incremental con- face, holds an accumulation of CCR en-
tirely below the adjacent natural
sequences that result from the release
ground surface, and does not consist of
of water or stored contents due to fail-
any constructed diked portion.
ure of the diked CCR surface impound-
ment or mis-operation of the diked Indian country or Indian lands means:
CCR surface impoundment or its appur- (1) All land within the limits of any
tenances. The hazardous potential clas- Indian reservation under the jurisdic-
sifications include high hazard poten- tion of the United States Government,
tial CCR surface impoundment, signifi- notwithstanding the issuance of any
cant hazard potential CCR surface im- patent, and including rights-of-way
poundment, and low hazard potential running throughout the reservation;
CCR surface impoundment, which (2) All dependent Indian communities
terms mean: within the borders of the United States
(1) High hazard potential CCR surface whether within the original or subse-
impoundment means a diked surface im- quently acquired territory thereof, and
poundment where failure or mis-oper- whether within or without the limits of
ation will probably cause loss of human the State; and
life. (3) All Indian allotments, the Indian
(2) Low hazard potential CCR surface titles to which have not been extin-
impoundment means a diked surface im- guished, including rights of way run-
poundment where failure or mis-oper- ning through the same.

ation results in no probable loss of Indian Tribe or Tribe means any In-
human life and low economic and/or en- dian tribe, band, nation, or community
437
§ 257.53 40 CFR Ch. I (7–1–21 Edition)
recognized by the Secretary of the In- menced construction if the owner or

terior and exercising substantial gov- operator has obtained the federal,
ernmental duties and powers on Indian state, and local approvals or permits
lands. necessary to begin physical construc-
Inflow design flood means the flood tion and a continuous on-site, physical
hydrograph that is used in the design construction program had begun after
or modification of the CCR surface im- October 19, 2015. Overfills are also con-
poundments and its appurtenant sidered new CCR landfills.
works. New CCR surface impoundment means
In operation means the same as active a CCR surface impoundment or lateral
life. expansion of an existing or new CCR
Karst terrain means an area where surface impoundment that first re-
karst topography, with its char- ceives CCR or commences construction
acteristic erosional surface and sub- after October 19, 2015. A new CCR sur-
terranean features, is developed as the face impoundment has commenced con-
result of dissolution of limestone, dolo- struction if the owner or operator has
mite, or other soluble rock. Char- obtained the federal, state, and local
acteristic physiographic features approvals or permits necessary to
present in karst terranes include, but begin physical construction and a con-
are not limited to, dolines, collapse tinuous on-site, physical construction
shafts (sinkholes), sinking streams, program had begun after October 19,
caves, seeps, large springs, and blind 2015.
valleys. Nonparticipating State means a
Lateral expansion means a horizontal State—
expansion of the waste boundaries of (1) For which the Administrator has
an existing CCR landfill or existing not approved a State permit program
CCR surface impoundment made after or other system of prior approval and
October 19, 2015. conditions under RCRA section
Liquefaction factor of safety means the 4005(d)(1)(B);
factor of safety (safety factor) deter- (2) The Governor of which has not
mined using analysis under lique- submitted to the Administrator for ap-
faction conditions. proval evidence to operate a State per-
Lithified earth material means all mit program or other system of prior
rock, including all naturally occurring approval and conditions under RCRA
and naturally formed aggregates or section 4005(d)(1)(A);
masses of minerals or small particles (3) The Governor of which provides
of older rock that formed by crys- notice to the Administrator that, not
tallization of magma or by induration fewer than 90 days after the date on
of loose sediments. This term does not which the Governor provides the notice
include man-made materials, such as to the Administrator, the State will re-
fill, concrete, and asphalt, or uncon- linquish an approval under RCRA sec-
solidated earth materials, soil, or tion 4005(d)(1)(B) to operate a permit
regolith lying at or near the earth sur- program or other system of prior ap-
face. proval and conditions; or
Maximum horizontal acceleration in (4) For which the Administrator has
lithified earth material means the max- withdrawn approval for a permit pro-
imum expected horizontal acceleration gram or other system of prior approval
at the ground surface as depicted on a and conditions under RCRA section
seismic hazard map, with a 98% or 4005(d)(1)(E).
greater probability that the accelera- Operator means the person(s) respon-
tion will not be exceeded in 50 years, or sible for the overall operation of a CCR
the maximum expected horizontal ac- unit.
celeration based on a site-specific seis- Overfill means a new CCR landfill
mic risk assessment. constructed over a closed CCR surface
New CCR landfill means a CCR land- impoundment.
fill or lateral expansion of a CCR land- Owner means the person(s) who owns
fill that first receives CCR or com- a CCR unit or part of a CCR unit.
mences construction after October 19, Participating State means a state with
2015. A new CCR landfill has com- a state program for control of CCR
438
that has been approved pursuant to neering, inspection, or mechanical in-

RCRA section 4005(d). tegrity activities.
Participating State Director means the Retrofit means to remove all CCR and
chief administrative officer of any contaminated soils and sediments from
state agency operating the CCR permit the CCR surface impoundment, and to
program in a participating state or the ensure the unit complies with the re-
delegated representative of the Partici- quirements in § 257.72
pating State Director. If responsibility Representative sample means a sample
is divided among two or more state of a universe or whole (e.g., waste pile,
agencies, Participating State Director lagoon, and groundwater) which can be
means the chief administrative officer expected to exhibit the average prop-
of the state agency authorized to per- erties of the universe or whole. See
form the particular function or proce- EPA publication SW–846, Test Methods
dure to which reference is made. for Evaluating Solid Waste, Physical/
Poor foundation conditions mean those Chemical Methods, Chapter 9 (available
areas where features exist which indi- at http://www.epa.gov/epawaste/hazard/
cate that a natural or human-induced testmethods/sw846/online/index.htm) for a
event may result in inadequate founda- discussion and examples of representa-
tion support for the structural compo- tive samples.
nents of an existing or new CCR unit. Run-off means any rainwater, leach-
For example, failure to maintain static ate, or other liquid that drains over
and seismic factors of safety as re- land from any part of a CCR landfill or
quired in §§ 257.73(e) and 257.74(e) would lateral expansion of a CCR landfill.
cause a poor foundation condition. Run-on means any rainwater, leach-
Probable maximum flood means the ate, or other liquid that drains over
flood that may be expected from the land onto any part of a CCR landfill or
most severe combination of critical lateral expansion of a CCR landfill.
meteorologic and hydrologic condi- Sand and gravel pit or quarry means
tions that are reasonably possible in an excavation for the extraction of ag-
the drainage basin. gregate, minerals or metals. The term
Qualified person means a person or sand and gravel pit and/or quarry does
persons trained to recognize specific not include subsurface or surface coal
appearances of structural weakness mines.
and other conditions which are dis- Seismic factor of safety means the fac-
rupting or have the potential to dis- tor of safety (safety factor) determined
rupt the operation or safety of the CCR using analysis under earthquake condi-
unit by visual observation and, if appli- tions using the peak ground accelera-
cable, to monitor instrumentation. tion for a seismic event with a 2%
Qualified professional engineer means probability of exceedance in 50 years,
an individual who is licensed by a state equivalent to a return period of ap-
as a Professional Engineer to practice proximately 2,500 years, based on the
one or more disciplines of engineering U.S. Geological Survey (USGS) seismic
and who is qualified by education, hazard maps for seismic events with
technical knowledge and experience to this return period for the region where
make the specific technical certifi- the CCR surface impoundment is lo-
cations required under this subpart. cated.
Professional engineers making these Seismic impact zone means an area
certifications must be currently li- having a 2% or greater probability that
censed in the state where the CCR the maximum expected horizontal ac-
unit(s) is located. celeration, expressed as a percentage of
Recognized and generally accepted good the earth’s gravitational pull (g), will
engineering practices means engineering exceed 0.10 g in 50 years.
maintenance or operation activities Slope protection means engineered or
based on established codes, widely ac- non-engineered measures installed on
cepted standards, published technical the upstream or downstream slope of
reports, or a practice widely rec- the CCR surface impoundment to pro-
ommended throughout the industry. tect the slope against wave action or
Such practices generally detail ap- erosion, including but not limited to
proved ways to perform specific engi- rock riprap, wooden pile, or concrete
439
§ 257.60 40 CFR Ch. I (7–1–21 Edition)
revetments, vegetated wave berms, interconnected with this aquifer within

concrete facing, gabions, geotextiles, the facility’s property boundary. Upper
or fascines. limit is measured at a point nearest to
Solid waste management or management the natural ground surface to which
means the systematic administration the aquifer rises during the wet season.
of the activities which provide for the Waste boundary means a vertical sur-
collection, source separation, storage, face located at the hydraulically
transportation, processing, treatment, downgradient limit of the CCR unit.
or disposal of solid waste. The vertical surface extends down into
State means any of the fifty States in the uppermost aquifer.
addition to the District of Columbia, [80 FR 21468, Apr. 17, 2015, as amended at 80
the Commonwealth of Puerto Rico, the FR 37991, July 2, 2015; 83 FR 36451, July 30,
Virgin Islands, Guam, American 2018; 85 FR 53561, Aug. 28, 2020]
Samoa, and the Commonwealth of the
Northern Mariana Islands. LOCATION RESTRICTIONS
State Director means the chief admin-
istrative officer of the lead state agen- § 257.60 Placement above the upper-
cy responsible for implementing the most aquifer.
state program regulating disposal in (a) New CCR landfills, existing and
CCR landfills, CCR surface impound- new CCR surface impoundments, and
ments, and all lateral expansions of a all lateral expansions of CCR units
CCR unit. must be constructed with a base that is
Static factor of safety means the factor located no less than 1.52 meters (five
of safety (safety factor) determined feet) above the upper limit of the up-
using analysis under the long-term, permost aquifer, or must demonstrate
maximum storage pool loading condi- that there will not be an intermittent,
tion, the maximum surcharge pool recurring, or sustained hydraulic con-
loading condition, and under the end- nection between any portion of the
of-construction loading condition. base of the CCR unit and the upper-
Structural components mean liners, most aquifer due to normal fluctua-
leachate collection and removal sys- tions in groundwater elevations (in-
tems, final covers, run-on and run-off cluding the seasonal high water table).
systems, inflow design flood control The owner or operator must dem-
systems, and any other component onstrate by the dates specified in para-
used in the construction and operation graph (c) of this section that the CCR
of the CCR unit that is necessary to en- unit meets the minimum requirements
sure the integrity of the unit and that for placement above the uppermost aq-
the contents of the unit are not re- uifer.
leased into the environment. (b) The owner or operator of the CCR
Technically feasible means possible to unit must obtain a certification from a
do in a way that would likely be suc- qualified professional engineer or ap-
cessful. proval from the Participating State Di-
Technically infeasible means not pos- rector or approval from EPA where
sible to do in a way that would likely EPA is the permitting authority stat-
be successful. ing that the demonstration meets the
Unstable area means a location that requirements of paragraph (a) of this
is susceptible to natural or human-in- section.
duced events or forces capable of im- (c) The owner or operator of the CCR
pairing the integrity, including struc- unit must complete the demonstration
tural components of some or all of the required by paragraph (a) of this sec-
CCR unit that are responsible for pre- tion by the date specified in either
venting releases from such unit. Unsta- paragraph (c)(1) or (2) of this section.
ble areas can include poor foundation (1) For an existing CCR surface im-
conditions, areas susceptible to mass poundment, the owner or operator
movements, and karst terrains. must complete the demonstration no
Uppermost aquifer means the geologic later than October 17, 2018.
formation nearest the natural ground (2) For a new CCR landfill, new CCR
surface that is an aquifer, as well as surface impoundment, or any lateral
lower aquifers that are hydraulically expansion of a CCR unit, the owner or
440
operator must complete the dem- (ii) A violation of any applicable

onstration no later than the date of toxic effluent standard or prohibition
initial receipt of CCR in the CCR unit. under section 307 of the Clean Water
(3) The owner or operator has com- Act;
pleted the demonstration required by (iii) Jeopardize the continued exist-
paragraph (a) of this section when the ence of endangered or threatened spe-
demonstration is placed in the facili- cies or result in the destruction or ad-
ty’s operating record as required by verse modification of a critical habitat,
§ 257.105(e). protected under the Endangered Spe-
(4) An owner or operator of an exist- cies Act of 1973; and
ing CCR surface impoundment who (iv) A violation of any requirement
fails to demonstrate compliance with under the Marine Protection, Research,
the requirements of paragraph (a) of and Sanctuaries Act of 1972 for the pro-
this section by the date specified in tection of a marine sanctuary.
paragraph (c)(1) of this section is sub- (3) The CCR unit will not cause or
ject to the requirements of contribute to significant degradation
§ 257.101(b)(1). of wetlands by addressing all of the fol-
(5) An owner or operator of a new lowing factors:
CCR landfill, new CCR surface im- (i) Erosion, stability, and migration
poundment, or any lateral expansion of potential of native wetland soils, muds
a CCR unit who fails to make the dem- and deposits used to support the CCR
onstration showing compliance with unit;
the requirements of paragraph (a) of (ii) Erosion, stability, and migration
this section is prohibited from placing potential of dredged and fill materials
CCR in the CCR unit. used to support the CCR unit;
(d) The owner or operator of the CCR (iii) The volume and chemical nature
unit must comply with the record- of the CCR;
keeping requirements specified in (iv) Impacts on fish, wildlife, and
§ 257.105(e), the notification require- other aquatic resources and their habi-
ments specified in § 257.106(e), and the tat from release of CCR;
internet requirements specified in (v) The potential effects of cata-
§ 257.107(e). strophic release of CCR to the wetland
and the resulting impacts on the envi-
[80 FR 21468, Apr. 17, 2015, as amended at 83 ronment; and
FR 36451, July 30, 2018] (vi) Any additional factors, as nec-
essary, to demonstrate that ecological
§ 257.61 Wetlands.
resources in the wetland are suffi-
(a) New CCR landfills, existing and ciently protected.
new CCR surface impoundments, and (4) To the extent required under sec-
all lateral expansions of CCR units tion 404 of the Clean Water Act or ap-
must not be located in wetlands, as de- plicable state wetlands laws, steps have
fined in § 232.2 of this chapter, unless been taken to attempt to achieve no
the owner or operator demonstrates by net loss of wetlands (as defined by acre-
the dates specified in paragraph (c) of age and function) by first avoiding im-
this section that the CCR unit meets pacts to wetlands to the maximum ex-
the requirements of paragraphs (a)(1) tent reasonable as required by para-
through (5) of this section. graphs (a)(1) through (3) of this section,
(1) Where applicable under section 404 then minimizing unavoidable impacts
of the Clean Water Act or applicable to the maximum extent reasonable,
state wetlands laws, a clear and objec- and finally offsetting remaining un-
tive rebuttal of the presumption that avoidable wetland impacts through all
an alternative to the CCR unit is rea- appropriate and reasonable compen-
sonably available that does not involve satory mitigation actions (e.g., res-
wetlands. toration of existing degraded wetlands
(2) The construction and operation of or creation of man-made wetlands); and
the CCR unit will not cause or con- (5) Sufficient information is available
tribute to any of the following: to make a reasoned determination with

(i) A violation of any applicable state respect to the demonstrations in para-
or federal water quality standard; graphs (a)(1) through (4) of this section.
441
§ 257.62 40 CFR Ch. I (7–1–21 Edition)
(b) The owner or operator of the CCR must not be located within 60 meters
unit must obtain a certification from a (200 feet) of the outermost damage zone
qualified professional engineer or ap- of a fault that has had displacement in
proval from the Participating State Di- Holocene time unless the owner or op-
rector or approval from EPA where erator demonstrates by the dates speci-
EPA is the permitting authority stat- fied in paragraph (c) of this section
ing that the demonstration meets the that an alternative setback distance of
requirements of paragraph (a) of this less than 60 meters (200 feet) will pre-
section. vent damage to the structural integ-
(c) The owner or operator of the CCR rity of the CCR unit.
unit must complete the demonstra- (b) The owner or operator of the CCR
tions required by paragraph (a) of this unit must obtain a certification from a
section by the date specified in either qualified professional engineer or ap-
paragraph (c)(1) or (2) of this section. proval from the Participating State Di-
(1) For an existing CCR surface im- rector or approval from EPA where
poundment, the owner or operator EPA is the permitting authority stat-
must complete the demonstration no ing that the demonstration meets the
later than October 17, 2018. requirements of paragraph (a) of this
(2) For a new CCR landfill, new CCR section.
surface impoundment, or any lateral (c) The owner or operator of the CCR
expansion of a CCR unit, the owner or unit must complete the demonstration
operator must complete the dem- required by paragraph (a) of this sec-
onstration no later than the date of tion by the date specified in either
initial receipt of CCR in the CCR unit. paragraph (c)(1) or (2) of this section.
(3) The owner or operator has com- (1) For an existing CCR surface im-
pleted the demonstration required by poundment, the owner or operator
paragraph (a) of this section when the must complete the demonstration no
demonstration is placed in the facili- later than October 17, 2018.
ty’s operating record as required by (2) For a new CCR landfill, new CCR
§ 257.105(e). surface impoundment, or any lateral
(4) An owner or operator of an exist- expansion of a CCR unit, the owner or
ing CCR surface impoundment who operator must complete the dem-
fails to demonstrate compliance with onstration no later than the date of
the requirements of paragraph (a) of initial receipt of CCR in the CCR unit.
this section by the date specified in (3) The owner or operator has com-
paragraph (c)(1) of this section is sub- pleted the demonstration required by
ject to the requirements of paragraph (a) of this section when the
§ 257.101(b)(1). demonstration is placed in the facili-
(5) An owner or operator of a new ty’s operating record as required by
CCR landfill, new CCR surface im- § 257.105(e).
poundment, or any lateral expansion of (4) An owner or operator of an exist-
a CCR unit who fails to make the dem- ing CCR surface impoundment who
onstrations showing compliance with fails to demonstrate compliance with
the requirements of paragraph (a) of the requirements of paragraph (a) of
this section is prohibited from placing this section by the date specified in
CCR in the CCR unit. paragraph (c)(1) of this section is sub-
(d) The owner or operator must com- ject to the requirements of
ply with the recordkeeping require- § 257.101(b)(1).
ments specified in § 257.105(e), the noti- (5) An owner or operator of a new
fication requirements specified in CCR landfill, new CCR surface im-
§ 257.106(e), and the Internet require- poundment, or any lateral expansion of
ments specified in § 257.107(e). a CCR unit who fails to make the dem-
[80 FR 21468, Apr. 17, 2015, as amended at 83 onstration showing compliance with
FR 36451, July 30, 2018] the requirements of paragraph (a) of
this section is prohibited from placing
§ 257.62 Fault areas. CCR in the CCR unit.
(a) New CCR landfills, existing and (d) The owner or operator of the CCR
new CCR surface impoundments, and unit must comply with the record-
all lateral expansions of CCR units keeping requirements specified in
442
§ 257.105(e), the notification require- (5) An owner or operator of a new

ments specified in § 257.106(e), and the CCR landfill, new CCR surface im-
Internet requirements specified in poundment, or any lateral expansion of
§ 257.107(e). a CCR unit who fails to make the dem-
[80 FR 21468, Apr. 17, 2015, as amended at 83 onstration showing compliance with
FR 36451, July 30, 2018] the requirements of paragraph (a) of
this section is prohibited from placing
§ 257.63 Seismic impact zones. CCR in the CCR unit.
(a) New CCR landfills, existing and (d) The owner or operator of the CCR
new CCR surface impoundments, and unit must comply with the record-
all lateral expansions of CCR units keeping requirements specified in
must not be located in seismic impact § 257.105(e), the notification require-
zones unless the owner or operator ments specified in § 257.106(e), and the
demonstrates by the dates specified in Internet requirements specified in
paragraph (c) of this section that all § 257.107(e).
structural components including lin- [80 FR 21468, Apr. 17, 2015, as amended at 83
ers, leachate collection and removal FR 36451, July 30, 2018]
systems, and surface water control sys-
tems, are designed to resist the max- § 257.64 Unstable areas.
imum horizontal acceleration in
(a) An existing or new CCR landfill,
lithified earth material for the site.
existing or new CCR surface impound-
(b) The owner or operator of the CCR
ment, or any lateral expansion of a
unit must obtain a certification from a
CCR unit must not be located in an un-
qualified professional engineer or ap-
stable area unless the owner or oper-
proval from the Participating State Di-
ator demonstrates by the dates speci-
rector or approval from EPA where
fied in paragraph (d) of this section
EPA is the permitting authority stat-
that recognized and generally accepted
ing that the demonstration meets the
good engineering practices have been
requirements of paragraph (a) of this
incorporated into the design of the
section.
(c) The owner or operator of the CCR CCR unit to ensure that the integrity
unit must complete the demonstration of the structural components of the
required by paragraph (a) of this sec- CCR unit will not be disrupted.
tion by the date specified in either (b) The owner or operator must con-
paragraph (c)(1) or (2) of this section. sider all of the following factors, at a
(1) For an existing CCR surface im- minimum, when determining whether
poundment, the owner or operator an area is unstable:
must complete the demonstration no (1) On-site or local soil conditions
later than October 17, 2018. that may result in significant differen-
(2) For a new CCR landfill, new CCR tial settling;
surface impoundment, or any lateral (2) On-site or local geologic or
expansion of a CCR unit, the owner or geomorphologic features; and
operator must complete the dem- (3) On-site or local human-made fea-
onstration no later than the date of tures or events (both surface and sub-
initial receipt of CCR in the CCR unit. surface).
(3) The owner or operator has com- (c) The owner or operator of the CCR
pleted the demonstration required by unit must obtain a certification from a
paragraph (a) of this section when the qualified professional engineer or ap-
demonstration is placed in the facili- proval from the Participating State Di-
ty’s operating record as required by rector or approval from EPA where
§ 257.105(e). EPA is the permitting authority stat-
(4) An owner or operator of an existing that the demonstration meets the
ing CCR surface impoundment who requirements of paragraph (a) of this
fails to demonstrate compliance with section.
the requirements of paragraph (a) of (d) The owner or operator of the CCR
this section by the date specified in unit must complete the demonstration
paragraph (c)(1) of this section is sub- required by paragraph (a) of this sec-
ject to the requirements of tion by the date specified in either
§ 257.101(b)(1). paragraph (d)(1) or (2) of this section.
443
§ 257.70 40 CFR Ch. I (7–1–21 Edition)
(1) For an existing CCR landfill or ex- quirements of paragraph (d) of this sec-
isting CCR surface impoundment, the tion.
owner or operator must complete the (2) Prior to construction of an over-
demonstration no later than October fill the underlying surface impound-
17, 2018. ment must meet the requirements of
(2) For a new CCR landfill, new CCR § 257.102(d).
surface impoundment, or any lateral (b) A composite liner must consist of
expansion of a CCR unit, the owner or two components; the upper component
operator must complete the dem- consisting of, at a minimum, a 30-mil
onstration no later than the date of geomembrane liner (GM), and the
initial receipt of CCR in the CCR unit. lower component consisting of at least
(3) The owner or operator has com- a two-foot layer of compacted soil with
pleted the demonstration required by a hydraulic conductivity of no more
paragraph (a) of this section when the than 1 × 10¥7 centimeters per second
demonstration is placed in the facili- (cm/sec). GM components consisting of
ty’s operating record as required by high density polyethylene (HDPE)
§ 257.105(e). must be at least 60-mil thick. The GM
(4) An owner or operator of an exist- or upper liner component must be in-
ing CCR surface impoundment or exist- stalled in direct and uniform contact
ing CCR landfill who fails to dem- with the compacted soil or lower liner
onstrate compliance with the require- component. The composite liner must
ments of paragraph (a) of this section be:
by the date specified in paragraph (1) Constructed of materials that
(d)(1) of this section is subject to the have appropriate chemical properties
requirements of § 257.101(b)(1) or (d)(1), and sufficient strength and thickness
respectively. to prevent failure due to pressure gra-
(5) An owner or operator of a new dients (including static head and exter-
CCR landfill, new CCR surface im- nal hydrogeologic forces), physical con-
poundment, or any lateral expansion of tact with the CCR or leachate to which
a CCR unit who fails to make the dem- they are exposed, climatic conditions,
onstration showing compliance with the stress of installation, and the
the requirements of paragraph (a) of stress of daily operation;
this section is prohibited from placing (2) Constructed of materials that pro-
CCR in the CCR unit. vide appropriate shear resistance of the
(e) The owner or operator of the CCR upper and lower component interface
unit must comply with the record- to prevent sliding of the upper compo-
keeping requirements specified in nent including on slopes;
§ 257.105(e), the notification require- (3) Placed upon a foundation or base
ments specified in § 257.106(e), and the capable of providing support to the
Internet requirements specified in liner and resistance to pressure gra-
§ 257.107(e). dients above and below the liner to pre-
vent failure of the liner due to settle-
FR 36451, July 30, 2018] ment, compression, or uplift; and
(4) Installed to cover all surrounding
DESIGN CRITERIA earth likely to be in contact with the
CCR or leachate.
§ 257.70 Design criteria for new CCR (c) If the owner or operator elects to
landfills and any lateral expansion install an alternative composite liner,
of a CCR landfill. all of the following requirements must
(a)(1) New CCR landfills and any lat- be met:
eral expansion of a CCR landfill must (1) An alternative composite liner must
be designed, constructed, operated, and consist of two components; the upper
maintained with either a composite component consisting of, at a min-
liner that meets the requirements of imum, a 30-mil GM, and a lower compo-
paragraph (b) of this section or an al- nent, that is not a geomembrane, with
ternative composite liner that meets a liquid flow rate no greater than the
the requirements in paragraph (c) of liquid flow rate of two feet of com-
this section, and a leachate collection pacted soil with a hydraulic conduc-
and removal system that meets the re- tivity of no more than 1 × 10¥7 cm/sec.
444
GM components consisting of high den- greater than the liquid flow rate
sity polyethylene (HDPE) must be at through two feet of compacted soil
least 60-mil thick. If the lower compo- with a hydraulic conductivity of 1x10¥7
nent of the alternative liner is com- cm/sec. The hydraulic conductivity for
pacted soil, the GM must be installed the two feet of compacted soil used in
in direct and uniform contact with the the comparison shall be no greater
compacted soil. than 1x10¥7 cm/sec. The hydraulic con-
(2) The owner or operator must ob- ductivity of any alternative to the two
tain certification from a qualified pro- feet of compacted soil must be deter-
fessional engineer or approval from the mined using recognized and generally
Participating State Director or ap- accepted methods. The liquid flow rate
proval from EPA where EPA is the per- comparison must be made using Equa-
mitting authority that the liquid flow tion 1 of this section, which is derived
rate through the lower component of from Darcy’s Law for gravity flow
the alternative composite liner is no through porous media.
Where: (3) Designed and operated to mini-

Q = flow rate (cubic centimeters/second); mize clogging during the active life
A = surface area of the liner (squared centi- and post-closure care period.
meters); (e) Prior to construction of the CCR
q = flow rate per unit area (cubic centi- landfill or any lateral expansion of a
meters/second/squared centimeter); CCR landfill, the owner or operator
k = hydraulic conductivity of the liner (cen- must obtain a certification from a
timeters/second); qualified professional engineer or ap-
h = hydraulic head above the liner (centi-
meters); and
proval from the Participating State Di-
t = thickness of the liner (centimeters). rector or approval from EPA where
EPA is the permitting authority that
(3) The alternative composite liner the design of the composite liner (or, if
must meet the requirements specified applicable, alternative composite liner)
in paragraphs (b)(1) through (4) of this and the leachate collection and re-
section. moval system meets the requirements
(d) The leachate collection and removal of this section.
system must be designed, constructed, (f) Upon completion of construction
operated, and maintained to collect of the CCR landfill or any lateral ex-
and remove leachate from the landfill pansion of a CCR landfill, the owner or
during the active life and post-closure operator must obtain a certification
care period. The leachate collection from a qualified professional engineer
and removal system must be: or approval from the Participating
(1) Designed and operated to main- State Director or approval from EPA
tain less than a 30-centimeter depth of where EPA is the permitting authority
leachate over the composite liner or al- that the design of the composite liner
ternative composite liner; (or, if applicable, alternative composite
(2) Constructed of materials that are liner) and the leachate collection and
chemically resistant to the CCR and removal system have been constructed
any non-CCR waste managed in the in accordance with the requirements of
CCR unit and the leachate expected to this section.
be generated, and of sufficient strength (g) The owner or operator of the CCR
and thickness to prevent collapse unit must comply with the record-
under the pressures exerted by over- keeping requirements specified in

lying waste, waste cover materials, and § 257.105(f), the notification require-
equipment used at the CCR unit; and ments specified in § 257.106(f), and the
445
ER30JY18.002</GPH>
§ 257.71 40 CFR Ch. I (7–1–21 Edition)
Internet requirements specified in poundment constructed without a com-

§ 257.107(f). posite liner or alternate composite
[80 FR 21468, Apr. 17, 2015, as amended at 83 liner, as defined in § 257.70(b) or (c),
FR 36451, July 30, 2018] may submit an Alternate Liner Dem-
onstration to the Administrator or the
§ 257.71 Liner design criteria for exist- Participating State Director to dem-
ing CCR surface impoundments. onstrate that based on the construc-
(a)(1) No later than October 17, 2016, tion of the unit and surrounding site
the owner or operator of an existing conditions, that there is no reasonable
CCR surface impoundment must docu- probability that continued operation of
ment whether or not such unit was the surface impoundment will result in
constructed with any one of the fol- adverse effects to human health or the
lowing: environment. The application and dem-
(i) [Reserved] onstration must be submitted to the
(ii) A composite liner that meets the Administrator or the Participating
requirements of § 257.70(b); or
State Director no later than the rel-
(iii) An alternative composite liner
evant deadline in paragraph (d)(2) of
that meets the requirements of
§ 257.70(c). this section. The Administrator or the
(2) The hydraulic conductivity of the Participating State Director will act
compacted soil must be determined on the submissions in accordance with
using recognized and generally accept- the procedures in paragraph (d)(2) of
ed methods. this section.
(3) An existing CCR surface impound- (1) Application and alternative liner
ment is considered to be an existing demonstration submission requirements.
unlined CCR surface impoundment if To obtain approval under this para-
either: graph (d), the owner or operator of the
(i) The owner or operator of the CCR CCR surface impoundment must sub-
unit determines that the CCR unit is mit all of the following:
not constructed with a liner that meets (i) Application. The owner or operator
the requirements of paragraph (a)(1)(ii) of the CCR surface impoundment must
or (iii) of this section; or submit a letter to the Administrator or
(ii) The owner or operator of the CCR the Participating State Director, an-
unit fails to document whether the nouncing their intention to submit a
CCR unit was constructed with a liner
demonstration under paragraph
that meets the requirements of para-
(d)(1)(ii) of this section. The applica-
graph (a)(1)(ii) or (iii) of this section.
(4) All existing unlined CCR surface tion must include the location of the
impoundments are subject to the re- facility and identify the specific CCR
quirements of § 257.101(a). surface impoundment for which the
(b) The owner or operator of the CCR demonstration will be made. The letter
unit must obtain a certification from a must include all of the following:
qualified professional engineer or ap- (A) A certification signed by the
proval from the Participating State Di- owner or operator that the CCR unit is
rector or approval from EPA where in full compliance with this subpart ex-
EPA is the permitting authority at- cept for § 257.71(a)(1);
testing that the documentation as to (B) Documentation supporting the
whether a CCR unit meets the require- certification required under paragraph
ments of paragraph (a) of this section (d)(1)(i)(A) of this section that includes
is accurate. all the following:
(c) The owner or operator of the CCR (1) Documentation that the ground-
unit must comply with the record- water monitoring network meets all
keeping requirements specified in the requirements of § 257.91. This must
§ 257.105(f), the notification require-
include documentation that the exist-
ments specified in § 257.106(f), and the
ing network of groundwater moni-
Internet requirements specified in
toring wells is sufficient to ensure de-

§ 257.107(f).
(d) Alternate Liner Demonstration. An tection of any groundwater contamina-
owner or operator of a CCR surface im- tion resulting from the impoundment,
446
based on direction of flow, well loca- and in-line with proven and accepted
tion, screening depth and other rel- engineering practices.
evant factors. At a minimum, the docu- (D) Facilities with CCR surface im-
mentation must include all of the fol- poundments located on properties adja-
lowing: cent to a water body must demonstrate
(i) Map(s) of groundwater monitoring that there is no reasonable probability
well locations in relation to the CCR that a complete and direct transport
unit(s) that depict the elevation of the pathway (i.e., not mediated by ground-
potentiometric surface and the direc- water) can exist between the impound-
tion(s) of groundwater flow across the ment and any nearby water body. If the
site; potential for such a pathway is identi-
(ii) Well construction diagrams and fied, then the unit would not be eligible
drilling logs for all groundwater moni- to submit a demonstration. If ongoing
toring wells; releases are identified, the owner or op-
(iii) Maps that characterize the direc- erator of the CCR unit must address
tion of groundwater flow accounting these releases in accordance with
for temporal variations; and § 257.96(a); and
(iv) Any other data and analyses the (E) Upon submission of the applica-
owner or operator of the CCR surface tion and any supplemental materials
impoundment relied upon when deter- submitted in support of the application
mining the design and location of the to the Administrator or the Partici-
groundwater monitoring network. pating State Director, the owner or op-
(2) Documentation that the CCR sur- erator must place the complete appli-
face impoundment remains in detec- cation in the facility’s operating record
tion monitoring pursuant to § 257.94 as as required by § 257.105(f)(14).
a precondition for submitting an appli- (ii) Alternate Liner Demonstration
cation. This includes documentation Package. The completed alternate liner
that the groundwater monitoring pro- demonstration package must be cer-
gram meets the requirements of tified by a qualified professional engi-
§§ 257.93 and 257.94. Such documentation neer. The package must present evi-
includes data of constituent concentra- dence to demonstrate that, based on
tions, summarized in table format, at the construction of the unit and sur-
each groundwater monitoring well rounding site conditions, there is no
monitored during each sampling event, reasonable probability that operation
and documentation of the most recent of the surface impoundment will result
statistical tests conducted, analyses of in concentrations of constituents listed
the tests, and the rationale for the in appendix IV to this part in the up-
methods used in these comparisons. As permost aquifer at levels above a
part of this rationale, the owner or op- groundwater protection standard. For
erator of the CCR surface impound- each line of evidence, as well as any
ment must provide all data and anal- other data and assumptions incor-
yses relied upon to comply with each of porated into the demonstration, the
the requirements of this part; owner or operator of the CCR surface
(3) Documentation that the unit impoundment must include docu-
meets all the location restrictions mentation on how the data were col-
under §§ 257.60 through 257.64; lected and why these data and assump-
(4) The most recent structural stations adequately reflect potential con-
bility assessment required at § 257.73(d); taminant transport from that specific
and impoundment. The alternate liner
(5) The most recent safety factor as- demonstration at a minimum must
sessment required at § 257.73(e). contain all of the following lines of evi-
(C) Documentation of the design dence:
specifications for any engineered liner (A) Characterization of site
components, as well as all data and hydrogeology. A characterization of the
analyses the owner or operator of the variability of site-specific soil and
CCR surface impoundment relied on hydrogeology surrounding the surface
when determining that the materials impoundment that will control the
are suitable for use and that the con- rate and direction of contaminant
struction of the liner is of good quality transport from the impoundment. The
447
§ 257.71 40 CFR Ch. I (7–1–21 Edition)
owner or operator must provide all of ence groundwater depth and flow meas-
the following as part of this line of evi- ured around the unit.
dence: (B) Potential for infiltration. A charac-
(1) Measurements of the hydraulic terization of the potential for infiltra-
conductivity in the uppermost aquifer tion through any soil-based liner com-
from all monitoring wells associated ponents and/or naturally occurring soil
with the impoundment(s) and discus- that control release and transport of
sion of the methods used to obtain leachate. All samples collected in the
these measurements; field for measurement of saturated hy-
(2) Measurements of the variability draulic conductivity must be sent to a
in subsurface soil characteristics col- certified laboratory for analysis under
lected from around the perimeter of controlled conditions and analyzed
the CCR surface impoundment to iden- using recognized and generally accept-
tify regions of substantially higher ed methodology. Facilities must docu-
conductivity; ment how the selected method is de-
(3) Documentation that all sampling signed to simulate on-site conditions.
methods used are in line with recog- The owner or operator must also pro-
nized and generally accepted practices vide documentation of the following as
that can provide data at a spatial reso- part of this line of evidence:
lution necessary to adequately charac- (1) The location, number, depth, and
terize the variability of subsurface con- spacing of samples relied upon is sup-
ditions that will control contaminant ported by the data collected in para-
transport; graph (d)(1)(ii)(A) of this section and is
(4) Explanation of how the specific sufficient to capture the variability of
number and location of samples col- saturated hydraulic conductivity for
lected are sufficient to capture sub- the soil-based liner components and/or
surface variability if: naturally occurring soil;
(i) Samples are advanced to a depth (2) The liquid used to pre-hydrate the
less than the top of the groundwater samples and measure long-term hy-
table or 20 feet beneath the bottom of draulic conductivity reflects the pH
the nearest water body, whichever is and major ion composition of the CCR
greater, and/or surface impoundment porewater;
(ii) Samples are spaced further apart (3) That samples intended to rep-
than 200 feet around the impoundment resent the hydraulic conductivity of
perimeter; naturally occurring soils (i.e., not me-
(5) A narrative description of site ge- chanically compacted) are handled in a
ological history; and manner that will ensure the
(6) Conceptual site models with cross- macrostructure of the soil is not dis-
sectional depictions of the site envi- turbed during collection, transport, or
ronmental sequence stratigraphy that analysis; and
include, at a minimum: (4) Any test for hydraulic conduc-
(i) The relative location of the im- tivity relied upon includes, in addition
poundment with depth of ponded water to other relevant termination criteria
noted; specified by the method, criteria that
(ii) Monitoring wells with screening equilibrium has been achieved between
depth noted; the inflow and outflow, within accept-
(iii) Depiction of the location of other able tolerance limits, for both elec-
samples used in the development of the trical conductivity and pH.
model; (C) Mathematical model to estimate the
(iv) The upper and lower limits of the potential for releases. Owners or opera-
uppermost aquifer across the site; tors must incorporate the data col-
(v) The upper and lower limits of the lected for paragraphs (d)(1)(ii)(A) and
depth to groundwater measured from (d)(1)(ii)(B) of this section into a math-
monitoring wells if the uppermost aq- ematical model to calculate the poten-
uifer is confined; and tial groundwater concentrations that
(vi) Both the location and geometry may result in downgradient wells as a
of any nearby points of groundwater result of the impoundment. Facilities

discharge or recharge (e.g., surface must also, where available, incorporate
water bodies) with potential to influ- the national-scale data on constituent
448
concentrations and behavior provided tivity, the owner or operator must sub-
by the existing risk record. Application mit a request for an extension no later
of the model must account for the full than September 1, 2021 that includes a
range of site current and potential fu- summary of the data that have been
ture conditions at and around the site analyzed to date for the samples re-
to ensure that high-end groundwater sponsible for the delay and an alter-
concentrations have been effectively nate timeline for completion that has
characterized. All of the data and as- been certified by the laboratory. The
sumptions incorporated into the model extension request must include all of
must be documented and justified. the following:
(1) The models relied upon in this (1) A timeline of fieldwork to confirm
paragraph (d)(1)(ii)(C) must be well-es- that samples were collected expedi-
tablished and validated, with docu- tiously;
mentation that can be made available (2) A chain of custody documenting
for public review. when samples were sent to the labora-
(2) The owner or operator must use tory;
the models to demonstrate that, for (3) Written certification from the lab
each constituent in appendix IV of this identifying how long it is projected for
part, there is no reasonable probability the tests to reach the relevant termi-
that the peak groundwater concentra- nation criteria related to solution
tion that may result from releases to
chemistry, and
groundwater from the CCR surface im-
(4) Documentation of the progression
poundment throughout its active life
towards all test termination metrics to
will exceed the groundwater protection
standard at the waste boundary. date.
(3) The demonstration must include (B) Length of extension. If the exten-
the peak groundwater concentrations sion is granted, the owner or operator
modeled for all constituents in appen- will have 45 days beyond the timeframe
dix IV of this part attributed both to certified by the laboratory to submit
the impoundment in isolation and in the completed demonstration.
addition to background. (C) Extension due to analytical limita-
(D) Upon submission of the alter- tions for chemical equilibrium. If the
native liner demonstration to the Ad- measured hydraulic conductivity has
ministrator or the Participating State not stabilized to within acceptable tol-
Director, the owner or operator must erance limits by the time the termi-
place the complete demonstration in nation criteria for solution chemistry
the facility’s operating record as re- are met, the owner or operator must
quired by § 257.105(f)(15). submit a preliminary demonstration no
(2) Procedures for adjudicating re- later than September 1, 2021 (with or
quests—(i) Deadline for application sub- without the one-time extension for an-
mission. The owner or operator must alytical limitations).
submit the application under para- (1) In this preliminary demonstra-
graph (d)(1)(i) of this section to EPA or tion, the owner or operator must sub-
the Participating State Director for mit a justification of how the bounds of
approval no later than November 30, uncertainty applied to the available
2020. measurements of hydraulic conduc-
(ii) Deadline for demonstration submis- tivity ensure that the final value is not
sion. If the application is approved the underestimated.
owner or operator must submit the (2) EPA will review the preliminary
demonstration required under para- demonstration to determine if it is
graph (d)(1)(ii) of this section to EPA complete and, if so, will propose to
or the Participating State Director for deny or to tentatively approve the
approval no later than November 30, demonstration. The proposed deter-
2021. mination will be posted in the docket
(A) Extension due to analytical limita- on www.regulations.gov and will be
tions. If the owner or operator cannot available for public comment for 30
meet the demonstration deadline due days. After consideration of the com-
to analytical limitations related to the ments, EPA will issue its decision on
measurement of hydraulic conduc- the application within four months of
449
§ 257.71 40 CFR Ch. I (7–1–21 Edition)
receiving a complete preliminary dem- application in the facility’s operating

onstration. record as required by § 257.105(f)(18).
(3) Once the final laboratory results (C) EPA will publish a proposed deci-
are available, the owner or operator sion on complete applications in a
must submit a final demonstration docket on www.regulations.gov for a 20-
that updates only the finalized hydrau- day comment period. After consider-
lic conductivity data to confirm that ation of the comments, EPA will issue
the model results in the preliminary its decision on the application within
demonstration are accurate. sixty days of receiving a complete ap-
(4) Until the time that EPA approves plication.
this final demonstration, the surface (D) If the application is approved, the
impoundment must remain in detec- deadline to cease receipt of waste will
tion monitoring or the demonstration be tolled until an alternate liner dem-
will be denied. onstration is determined to be incom-
(5) If EPA tentatively approved the plete or a final decision under para-
preliminary demonstration, EPA will graph (d)(2)(vi) of this section is issued.
then take action on the newly sub- (E) If the surface impoundment is de-
mitted final demonstration using the termined by EPA to be ineligible to
procedures in paragraphs (d)(2)(iv) apply for an alternate liner demonstra-
through (vi) of this section. tion, and the facility lacks alternative
(6) The public will have 30 days to
capacity to manage its CCR and/or
comment but may comment only on
non-CCR wastestreams, the owner or
the new information presented in the
operator may apply for an alternative
complete final demonstration or in
closure deadline in accordance with the
EPA’s tentative decision on the newly
procedures in § 257.103(f). The owner or
submitted demonstration.
operator will be given four months
(D) Upon submission of a request for
from the date of the ineligibility deter-
an extension to the deadline for the
mination to apply for the alternative
demonstration due to analytical limi-
closure provisions in either
tations pursuant to paragraph
§ 257.103(f)(1) or (f)(2), during which
(d)(2)(ii)(A) of this section, the owner
or operator must place the alternative time the facility’s deadline to cease re-
liner demonstration extension request ceipt of waste will be tolled.
in the facility’s operating record as re- (F) Upon receipt of a decision on the
quired by § 257.105(f)(16). application pursuant to paragraph
(E) Upon submission of a preliminary (d)(2)(iii)(C) of this section, the owner
demonstration pursuant to paragraph or operator must place the decision on
(d)(2)(ii)(C) of this section, the owner the application in the facility’s oper-
or operator must place the preliminary ating record as required by
demonstration in the facility’s oper- § 257.105(f)(19).
ating record as required by (iv) Demonstration review. EPA will
§ 257.105(f)(17). evaluate the demonstration package
(iii) Application review—(A) EPA will and may request additional informa-
evaluate the application and may re- tion not required as part of the dem-
quest additional information not re- onstration as necessary to complete its
quired as part of the application as review. Submission of a complete dem-
necessary to complete its review. Sub- onstration package will continue to
mission of a complete application will toll the facility’s deadline to cease re-
toll the facility’s deadline to cease receipt of waste into that CCR surface
ceipt of waste until issuance of a final impoundment until issuance of a final
decision under paragraph (d)(2)(iii)(C) decision under paragraph (d)(2)(vi) of
of this section. Incomplete submissions this section. Upon a determination
will not toll the facility’s deadline and that a demonstration is incomplete the
will be rejected without further proc- tolling of the facility’s deadline will
ess. cease and the submission will be re-
(B) If the application is determined jected without further process.
to be incomplete, EPA will notify the (v) Proposed decision on demonstration.

facility. The owner or operator must EPA will publish a proposed decision
place the notification of an incomplete on a complete demonstration package
450
in a docket on www.regulations.gov for ty’s operating record as required by

a 30-day comment period. § 257.105(h)(5);
(vi) Final decision on demonstration. (3) Conduct intra-well analysis on
After consideration of the comments, each downgradient well to identify any
EPA will issue its decision on the al- trends of increasing concentrations as
ternate liner demonstration package required by paragraph (d)(2)(ix)(B) of
within four months of receiving a com- this section. The owner and operator
plete demonstration package. Upon ap- must conduct the initial groundwater
proval the facility may continue to op- sampling and analysis for all constitu-
erate the impoundment as long as the ents listed in appendix IV to this part
impoundment remains in detection according to the timeframes specified
monitoring. Upon detection of a statis- in § 257.95(b);
tically significant increase over back- (4) The owner or operator may elect
ground of a constituent listed on ap- to pursue an alternative source dem-
pendix III to this part, the facility onstration pursuant to § 257.94(e)(2)
must proceed in accordance with the
that a source other than the CCR unit
requirements of paragraph (ix) of this
caused the contamination, or that the
section.
statistically significant increase re-
(vii) Facility operating record require-
sulted from error in sampling, analysis,
ments. Upon receipt of the final deci-
statistical evaluation, or natural vari-
sion on the alternate liner demonstra-
ation in groundwater quality, provided
tion pursuant to paragraph (vi) of this
that such alternative source dem-
section, the owner or operator must
onstration must be conducted simulta-
place the final decision in the facility’s
neously with the sampling and analysis
operating record as required by
required by paragraph (d)(2)(ix)(A)(3) of
§ 257.105(f)(20).
(viii) Effect of Demonstration Denial. If this section. If the owner or operator
EPA determines that the CCR surface believes that a successful demonstra-
impoundment’s alternate liner does not tion has been made, the demonstration
meet the standard for approval in this must be submitted to EPA for review
paragraph (d), the owner or operator and approval. The owner or operator
must cease receipt of waste and ini- must place the demonstration in the
tiate closure as determined in EPA’s facility’s operating record within the
decision. If the owner or operator needs deadlines specified in § 257.94(e)(2) and
to obtain alternate capacity, they may submit the demonstration to EPA
do so in accordance with the proce- within 14 days of placing the dem-
dures in § 257.103. The owner or operator onstration in the facility’s operating
will have four months from the date of record.
EPA’s decision to apply for an alter- (5) The alternative source demonstra-
native closure deadline under either tion must be posted to the facility’s
§ 257.103(f)(1) or (f)(2), during which publicly accessible CCR internet site
time the facility’s deadline to cease re- and submitted to EPA within 14 days of
ceipt of waste will be tolled. completion. EPA will publish a pro-
(ix) Loss of authorization–(A) The posed decision on the alternative
owner or operator of the CCR unit source determination on
must comply with all of the following www.regulations.gov for a 20-day com-
upon determining that there is a sta- ment period. After consideration of the
tistically significant increase over comments, EPA will issue its decision.
background levels for one or more con- If the alternative source demonstration
stituents listed in appendix III to this is approved, the owner or operator may
part pursuant to § 257.94(e): cease conducting the trend analysis
(1) In addition to the requirements and return to detection monitoring. If
specified in this paragraph (d), comply the alternative source demonstration
with the groundwater monitoring and is denied, the owner or operator must
corrective action procedures specified either complete the trend analysis or
in §§ 257.90 through 257.98; cease receipt of waste. Upon receipt of
(2) Submit the notification required the final decision on the alternative
by § 257.94(e)(3) to EPA within 14 days source demonstration, the owner or op-
of placing the notification in the facili- erator must place the final decision in
451
§ 257.72 40 CFR Ch. I (7–1–21 Edition)
the facility’s operating record as re- groundwater protection standard, be-

quired by § 257.105(f)(22). fore the closure deadlines established
(B) Trend analysis. (1) Except as pro- in § 257.102, the CCR surface impound-
vided for in § 257.95(c), the owner or opment must cease receipt of waste by
erator must collect a minimum of four the date provided in the notice.
independent samples from each well (C) If the trend analysis dem-
(background and downgradient) on a onstrates the presence of a statis-
quarterly basis within the first year of tically significant trend of increasing
triggering assessment monitoring and concentration for one or more con-
analyze each sample for all constitu- stituents listed in appendix IV of this
ents listed in appendix IV to this part. part with potential to result in an ex-
Consistent with 257.95(b), the first sam- ceedance of any groundwater protec-
ples must be collected within 90 days of
tion standard before closure is com-
triggering assessment monitoring.
plete, or if at any time one or more
After the initial year of sampling, the
constituents listed in appendix IV of
owner or operator must then conduct
this part are detected at a statistically
sampling as prescribed in § 257.95(d)(1).
After each sampling event, the owner significant level above a groundwater
or operator must update the trend protection standard, the authorization
analysis with the new sampling infor- will be withdrawn. The provisions at
mation. § 257.96(g)(3) do not apply to CCR sur-
(2) The owner or operator of the CCR face impoundments operating under an
surface impoundment must apply an alternate liner demonstration. Upon
appropriate statistical test to identify receipt of a decision that the alternate
any trends of increasing concentra- liner demonstration has been with-
tions within the monitoring data. For drawn, the owner or operator must
normally distributed datasets, linear place the decision in the facility’s op-
regression will be used to identify erating record as required by
trends and determine the associated § 257.105(f)(24).
magnitude. For non-normally distrib- (D) The onus remains on the owner or
uted datasets, the Mann-Kendall test operator of the CCR surface impound-
will be used to identify trends and the ment at all times to demonstrate that
Theil-Sen trend line will be used to de- the CCR surface impoundment meets
termine the associated magnitude. If a the conditions for authorization under
trend is identified, the owner or oper- this section. If at any point, any condi-
ator of the CCR surface impoundment tion for qualification under this sec-
will use the upper 95th percentile con- tion has not been met, EPA or the Par-
fidence limit on the trend line to esti- ticipating State Director can without
mate future concentrations. The owner further notice or process deny or re-
or operator will project this trendline voke the owner or operator’s author-
into the future for a duration set to the ization under paragraph (d)(2)(ix) of
maximum number of years established
this section.
in § 257.102 for closure of the surface im-
poundment. [80 FR 21468, Apr. 17, 2015, as amended at 83
(3) A report of the results of each FR 36452, July 30, 2018; 85 FR 53561, Aug. 28,
sampling event, as well as the final 2020; 85 FR 72539, Nov. 12, 2020]
trend analysis, must be posted to the
facility’s publicly accessible CCR inter- § 257.72 Liner design criteria for new
net site and submitted to EPA within CCR surface impoundments and
any lateral expansion of a CCR sur-
14 days of completion. The trend anal- face impoundment.
ysis submitted to EPA must include all
data relied upon by the facility to sup- (a) New CCR surface impoundments
port the analysis. EPA will publish a and lateral expansions of existing and
proposed decision on the trend analysis new CCR surface impoundments must
on www.regulations.gov for a 30-day be designed, constructed, operated, and
comment period. After consideration of maintained with either a composite
the comments, EPA will issue its deci- liner or an alternative composite liner
sion. If the trend analysis shows the that meets the requirements of
potential for a future exceedance of a § 257.70(b) or (c).
452
(b) Any liner specified in this section showing the identification number of
must be installed to cover all sur- the CCR unit, if one has been assigned
rounding earth likely to be in contact by the state, the name associated with
with CCR. Dikes shall not be con- the CCR unit and the name of the
structed on top of the composite liner. owner or operator of the CCR unit.
(c) Prior to construction of the CCR (2) Periodic hazard potential classifica-
surface impoundment or any lateral ex- tion assessments. (i) The owner or oper-
pansion of a CCR surface impound- ator of the CCR unit must conduct ini-
ment, the owner or operator must ob- tial and periodic hazard potential clas-
tain certification from a qualified pro- sification assessments of the CCR unit
fessional engineer or approval from the according to the timeframes specified
Participating State Director or ap- in paragraph (f) of this section. The
proval from EPA where EPA is the per- owner or operator must document the
mitting authority that the design of hazard potential classification of each
the composite liner or, if applicable, CCR unit as either a high hazard poten-
the design of an alternative composite tial CCR surface impoundment, a sig-
liner complies with the requirements nificant hazard potential CCR surface
of this section. impoundment, or a low hazard poten-
(d) Upon completion, the owner or tial CCR surface impoundment. The
operator must obtain certification owner or operator must also document
from a qualified professional engineer the basis for each hazard potential
or approval from the Participating classification.
State Director or approval from EPA (ii) The owner or operator of the CCR
where EPA is the permitting authority unit must obtain a certification from a
that the composite liner or if applica- qualified professional engineer stating
ble, the alternative composite liner has that the initial hazard potential classi-
been constructed in accordance with fication and each subsequent periodic
the requirements of this section. classification specified in paragraph
(e) The owner or operator of the CCR (a)(2)(i) of this section was conducted
unit must comply with the record- in accordance with the requirements of
keeping requirements specified in this section.
§ 257.105(f), the notification require- (3) Emergency Action Plan (EAP)—(i)
ments specified in § 257.106(f), and the Development of the plan. No later than
Internet requirements specified in April 17, 2017, the owner or operator of
§ 257.107(f). a CCR unit determined to be either a
[80 FR 21468, Apr. 17, 2015, as amended at 83 high hazard potential CCR surface im-
FR 36452, July 30, 2018] poundment or a significant hazard po-
tential CCR surface impoundment
§ 257.73 Structural integrity criteria under paragraph (a)(2) of this section
for existing CCR surface impound- must prepare and maintain a written
ments. EAP. At a minimum, the EAP must:
(a) The requirements of paragraphs (A) Define the events or cir-
(a)(1) through (4) of this section apply cumstances involving the CCR unit
to all existing CCR surface impound- that represent a safety emergency,
ments, except for those existing CCR along with a description of the proce-
surface impoundments that are incised dures that will be followed to detect a
CCR units. If an incised CCR surface safety emergency in a timely manner;
impoundment is subsequently modified (B) Define responsible persons, their
(e.g., a dike is constructed) such that respective responsibilities, and notifi-
the CCR unit no longer meets the defi- cation procedures in the event of a
nition of an incised CCR unit, the CCR safety emergency involving the CCR
unit is subject to the requirements of unit;
paragraphs (a)(1) through (4) of this (C) Provide contact information of
section. emergency responders;
(1) No later than, December 17, 2015, (D) Include a map which delineates
the owner or operator of the CCR unit the downstream area which would be
must place on or immediately adjacent affected in the event of a CCR unit fail-
to the CCR unit a permanent identi- ure and a physical description of the
fication marker, at least six feet high CCR unit; and
453
§ 257.73 40 CFR Ch. I (7–1–21 Edition)
(E) Include provisions for an annual quent amendment of the EAP, meets
face-to-face meeting or exercise be- the requirements of paragraph (a)(3) of
tween representatives of the owner or this section.
operator of the CCR unit and the local (v) Activation of the EAP. The EAP
emergency responders. must be implemented once events or
(ii) Amendment of the plan. (A) The circumstances involving the CCR unit
owner or operator of a CCR unit sub- that represent a safety emergency are
ject to the requirements of paragraph detected, including conditions identi-
(a)(3)(i) of this section may amend the fied during periodic structural sta-
written EAP at any time provided the bility assessments, annual inspections,
revised plan is placed in the facility’s and inspections by a qualified person.
operating record as required by (4) The CCR unit and surrounding
§ 257.105(f)(6). The owner or operator areas must be designed, constructed,
must amend the written EAP whenever operated, and maintained with vege-
there is a change in conditions that tated slopes of dikes not to exceed a
would substantially affect the EAP in height of 6 inches above the slope of
effect. the dike, except for slopes which are
(B) The written EAP must be evalu- protected with an alternate form(s) of
ated, at a minimum, every five years to slope protection.
ensure the information required in (b) The requirements of paragraphs
paragraph (a)(3)(i) of this section is ac- (c) through (e) of this section apply to
curate. As necessary, the EAP must be an owner or operator of an existing
updated and a revised EAP placed in CCR surface impoundment that either:
the facility’s operating record as re- (1) Has a height of five feet or more
quired by § 257.105(f)(6). and a storage volume of 20 acre-feet or
(iii) Changes in hazard potential classi- more; or
fication. (A) If the owner or operator of (2) Has a height of 20 feet or more.
a CCR unit determines during a peri- (c)(1) No later than October 17, 2016,
odic hazard potential assessment that the owner or operator of the CCR unit
the CCR unit is no longer classified as must compile a history of construc-
either a high hazard potential CCR sur- tion, which shall contain, to the extent
face impoundment or a significant haz- feasible, the information specified in
ard potential CCR surface impound- paragraphs (c)(1)(i) through (xi) of this
ment, then the owner or operator of section.
the CCR unit is no longer subject to (i) The name and address of the per-
the requirement to prepare and main- son(s) owning or operating the CCR
tain a written EAP beginning on the unit; the name associated with the
date the periodic hazard potential as- CCR unit; and the identification num-
sessment documentation is placed in ber of the CCR unit if one has been as-
the facility’s operating record as re- signed by the state.
quired by § 257.105(f)(5). (ii) The location of the CCR unit
(B) If the owner or operator of a CCR identified on the most recent U.S. Geo-
unit classified as a low hazard poten- logical Survey (USGS) 71⁄2 minute or 15
tial CCR surface impoundment subse- minute topographic quadrangle map, or
quently determines that the CCR unit a topographic map of equivalent scale
is properly re-classified as either a if a USGS map is not available.
high hazard potential CCR surface im- (iii) A statement of the purpose for
poundment or a significant hazard po- which the CCR unit is being used.
tential CCR surface impoundment, (iv) The name and size in acres of the
then the owner or operator of the CCR watershed within which the CCR unit
unit must prepare a written EAP for is located.
the CCR unit as required by paragraph (v) A description of the physical and
(a)(3)(i) of this section within six engineering properties of the founda-
months of completing such periodic tion and abutment materials on which
hazard potential assessment. the CCR unit is constructed.
(iv) The owner or operator of the CCR (vi) A statement of the type, size,
unit must obtain a certification from a range, and physical and engineering
qualified professional engineer stating properties of the materials used in con-
that the written EAP, and any subse- structing each zone or stage of the CCR
454
unit; the method of site preparation wastewater which can be impounded

and construction of each zone of the therein. The assessment must, at a
CCR unit; and the approximate dates of minimum, document whether the CCR
construction of each successive stage unit has been designed, constructed,
of construction of the CCR unit. operated, and maintained with:
(vii) At a scale that details engineer- (i) Stable foundations and abut-
ing structures and appurtenances rel- ments;
evant to the design, construction, oper- (ii) Adequate slope protection to pro-
ation, and maintenance of the CCR tect against surface erosion, wave ac-
unit, detailed dimensional drawings of tion, and adverse effects of sudden
the CCR unit, including a plan view drawdown;
and cross sections of the length and (iii) Dikes mechanically compacted
width of the CCR unit, showing all to a density sufficient to withstand the
zones, foundation improvements, drain- range of loading conditions in the CCR
age provisions, spillways, diversion unit;
ditches, outlets, instrument locations, (iv) Vegetated slopes of dikes and
and slope protection, in addition to the surrounding areas not to exceed a
normal operating pool surface ele- height of six inches above the slope of
vation and the maximum pool surface the dike, except for slopes which have
elevation following peak discharge an alternate form or forms of slope pro-
from the inflow design flood, the ex- tection;
pected maximum depth of CCR within (v) A single spillway or a combina-
the CCR surface impoundment, and any tion of spillways configured as speci-
identifiable natural or manmade fea- fied in paragraph (d)(1)(v)(A) of this
tures that could adversely affect oper- section. The combined capacity of all
ation of the CCR unit due to malfunc- spillways must be designed, con-
tion or mis-operation. structed, operated, and maintained to
(viii) A description of the type, pur- adequately manage flow during and fol-
pose, and location of existing instru- lowing the peak discharge from the
mentation. event specified in paragraph (d)(1)(v)(B)
(ix) Area-capacity curves for the CCR of this section.
unit. (A) All spillways must be either:
(x) A description of each spillway and (1) Of non-erodible construction and
diversion design features and capac- designed to carry sustained flows; or
ities and calculations used in their de- (2) Earth- or grass-lined and designed
termination. to carry short-term, infrequent flows
(xi) The construction specifications at non-erosive velocities where sus-
and provisions for surveillance, maintained flows are not expected.
tenance, and repair of the CCR unit. (B) The combined capacity of all
(xii) Any record or knowledge of spillways must adequately manage
structural instability of the CCR unit. flow during and following the peak dis-
(2) Changes to the history of construc- charge from a:
tion. If there is a significant change to (1) Probable maximum flood (PMF)
any information compiled under para- for a high hazard potential CCR surface
graph (c)(1) of this section, the owner impoundment; or
or operator of the CCR unit must up- (2) 1000-year flood for a significant
date the relevant information and hazard potential CCR surface impound-
place it in the facility’s operating ment; or
record as required by § 257.105(f)(9). (3) 100-year flood for a low hazard po-
(d) Periodic structural stability assess- tential CCR surface impoundment.
ments. (1) The owner or operator of the (vi) Hydraulic structures underlying
CCR unit must conduct initial and the base of the CCR unit or passing
periodic structural stability assess- through the dike of the CCR unit that
ments and document whether the de- maintain structural integrity and are
sign, construction, operation, and free of significant deterioration, defor-
maintenance of the CCR unit is con- mation, distortion, bedding defi-
sistent with recognized and generally ciencies, sedimentation, and debris

accepted good engineering practices for which may negatively affect the oper-
the maximum volume of CCR and CCR ation of the hydraulic structure; and
455
§ 257.73 40 CFR Ch. I (7–1–21 Edition)
(vii) For CCR units with downstream (2) The owner or operator of the CCR
slopes which can be inundated by the unit must obtain a certification from a
pool of an adjacent water body, such as qualified professional engineer stating
a river, stream or lake, downstream that the initial assessment and each
slopes that maintain structural sta- subsequent periodic assessment speci-
bility during low pool of the adjacent fied in paragraph (e)(1) of this section
water body or sudden drawdown of the meets the requirements of this section.
adjacent water body. (f) Timeframes for periodic assess-
(2) The periodic assessment described ments—(1) Initial assessments. Except as
in paragraph (d)(1) of this section must provided by paragraph (f)(2) of this sec-
identify any structural stability defi- tion, the owner or operator of the CCR
ciencies associated with the CCR unit unit must complete the initial assess-
in addition to recommending correc- ments required by paragraphs (a)(2),
tive measures. If a deficiency or a re- (d), and (e) of this section no later than
lease is identified during the periodic October 17, 2016. The owner or operator
assessment, the owner or operator unit has completed an initial assessment
must remedy the deficiency or release when the owner or operator has placed
as soon as feasible and prepare docu- the assessment required by paragraphs
mentation detailing the corrective (a)(2), (d), and (e) of this section in the
measures taken. facility’s operating record as required
(3) The owner or operator of the CCR by § 257.105(f)(5), (10), and (12).
unit must obtain a certification from a (2) Use of a previously completed assess-
qualified professional engineer stating ment(s) in lieu of the initial assessment(s).
that the initial assessment and each The owner or operator of the CCR unit
subsequent periodic assessment was may elect to use a previously com-
conducted in accordance with the re- pleted assessment to serve as the ini-
quirements of this section. tial assessment required by paragraphs
(e) Periodic safety factor assessments.
(a)(2), (d), and (e) of this section pro-
(1) The owner or operator must conduct
vided that the previously completed as-
an initial and periodic safety factor as-
sessment(s):
sessments for each CCR unit and docu-
ment whether the calculated factors of (i) Was completed no earlier than 42
safety for each CCR unit achieve the months prior to October 17, 2016; and
minimum safety factors specified in (ii) Meets the applicable require-
paragraphs (e)(1)(i) through (iv) of this ments of paragraphs (a)(2), (d), and (e)
section for the critical cross section of of this section.
the embankment. The critical cross (3) Frequency for conducting periodic
section is the cross section anticipated assessments. The owner or operator of
to be the most susceptible of all cross the CCR unit must conduct and com-
sections to structural failure based on plete the assessments required by para-
appropriate engineering consider- graphs (a)(2), (d), and (e) of this section
ations, including loading conditions. every five years. The date of com-
The safety factor assessments must be pleting the initial assessment is the
supported by appropriate engineering basis for establishing the deadline to
calculations. complete the first subsequent assess-
(i) The calculated static factor of ment. If the owner or operator elects to
safety under the long-term, maximum use a previously completed assess-
storage pool loading condition must ment(s) in lieu of the initial assess-
equal or exceed 1.50. ment as provided by paragraph (f)(2) of
(ii) The calculated static factor of this section, the date of the report for
safety under the maximum surcharge the previously completed assessment is
pool loading condition must equal or the basis for establishing the deadline
exceed 1.40. to complete the first subsequent as-
(iii) The calculated seismic factor of sessment. The owner or operator may
safety must equal or exceed 1.00. complete any required assessment
(iv) For dikes constructed of soils prior to the required deadline provided
that have susceptibility to lique- the owner or operator places the com-
faction, the calculated liquefaction fac- pleted assessment(s) into the facility’s
tor of safety must equal or exceed 1.20. operating record within a reasonable
456
amount of time. In all cases, the dead- tial and periodic hazard potential clas-
line for completing subsequent assess- sification assessments of the CCR unit
ments is based on the date of com- according to the timeframes specified
pleting the previous assessment. For in paragraph (f) of this section. The
purposes of this paragraph (f)(3), the owner or operator must document the
owner or operator has completed an as- hazard potential classification of each
sessment when the relevant assess- CCR unit as either a high hazard poten-
ment(s) required by paragraphs (a)(2), tial CCR surface impoundment, a sig-
(d), and (e) of this section has been nificant hazard potential CCR surface
placed in the facility’s operating impoundment, or a low hazard poten-
record as required by § 257.105(f)(5), (10), tial CCR surface impoundment. The
and (12). owner or operator must also document
(4) Closure of the CCR unit. An owner the basis for each hazard potential
or operator of a CCR unit who either classification.
fails to complete a timely safety factor
(ii) The owner or operator of the CCR
assessment or fails to demonstrate
unit must obtain a certification from a
minimum safety factors as required by
qualified professional engineer stating
paragraph (e) of this section is subject
to the requirements of § 257.101(b)(2). that the initial hazard potential classi-
(g) The owner or operator of the CCR fication and each subsequent periodic
unit must comply with the record- classification specified in paragraph
keeping requirements specified in (a)(2)(i) of this section was conducted
§ 257.105(f), the notification require- in accordance with the requirements of
ments specified in § 257.106(f), and the this section.
internet requirements specified in (3) Emergency Action Plan (EAP)—(i)
§ 257.107(f). Development of the plan. Prior to the
initial receipt of CCR in the CCR unit,
§ 257.74 Structural integrity criteria the owner or operator of a CCR unit de-
for new CCR surface impoundments termined to be either a high hazard po-
and any lateral expansion of a CCR tential CCR surface impoundment or a
surface impoundment.
significant hazard potential CCR sur-
(a) The requirements of paragraphs face impoundment under paragraph
(a)(1) through (4) of this section apply (a)(2) of this section must prepare and
to all new CCR surface impoundments maintain a written EAP. At a min-
and any lateral expansion of a CCR sur- imum, the EAP must:
face impoundment, except for those (A) Define the events or cir-
new CCR surface impoundments that cumstances involving the CCR unit
are incised CCR units. If an incised that represent a safety emergency,
CCR surface impoundment is subse- along with a description of the proce-
quently modified (e.g., a dike is con- dures that will be followed to detect a
structed) such that the CCR unit no safety emergency in a timely manner;
longer meets the definition of an in-
(B) Define responsible persons, their
cised CCR unit, the CCR unit is subject
respective responsibilities, and notifi-
to the requirements of paragraphs
cation procedures in the event of a
(a)(1) through (4) of this section.
safety emergency involving the CCR
(1) No later than the initial receipt of
CCR, the owner or operator of the CCR unit;
unit must place on or immediately ad- (C) Provide contact information of
jacent to the CCR unit a permanent emergency responders;
identification marker, at least six feet (D) Include a map which delineates
high showing the identification number the downstream area which would be
of the CCR unit, if one has been as- affected in the event of a CCR unit fail-
signed by the state, the name associ- ure and a physical description of the
ated with the CCR unit and the name CCR unit; and
of the owner or operator of the CCR (E) Include provisions for an annual
unit. face-to-face meeting or exercise be-
(2) Periodic hazard potential classifica- tween representatives of the owner or

tion assessments. (i) The owner or oper- operator of the CCR unit and the local
ator of the CCR unit must conduct ini- emergency responders.
457
§ 257.74 40 CFR Ch. I (7–1–21 Edition)
(ii) Amendment of the plan. (A) The circumstances involving the CCR unit
owner or operator of a CCR unit sub- that represent a safety emergency are
ject to the requirements of paragraph detected, including conditions identi-
(a)(3)(i) of this section may amend the fied during periodic structural sta-
written EAP at any time provided the bility assessments, annual inspections,
revised plan is placed in the facility’s and inspections by a qualified person.
operating record as required by (4) The CCR unit and surrounding
§ 257.105(f)(6). The owner or operator areas must be designed, constructed,
must amend the written EAP whenever operated, and maintained with vege-
there is a change in conditions that tated slopes of dikes not to exceed a
would substantially affect the EAP in height of six inches above the slope of
effect. the dike, except for slopes which are
(B) The written EAP must be evalu- protected with an alternate form(s) of
ated, at a minimum, every five years to slope protection.
ensure the information required in (b) The requirements of paragraphs
paragraph (a)(3)(i) of this section is ac- (c) through (e) of this section apply to
curate. As necessary, the EAP must be an owner or operator of a new CCR sur-
updated and a revised EAP placed in face impoundment and any lateral ex-
the facility’s operating record as re- pansion of a CCR surface impoundment
quired by § 257.105(f)(6). that either:
(iii) Changes in hazard potential classi- (1) Has a height of five feet or more
fication. (A) If the owner or operator of and a storage volume of 20 acre-feet or
a CCR unit determines during a peri- more; or
odic hazard potential assessment that (2) Has a height of 20 feet or more.
the CCR unit is no longer classified as (c)(1) No later than the initial receipt
either a high hazard potential CCR sur- of CCR in the CCR unit, the owner or
face impoundment or a significant haz- operator unit must compile the design
ard potential CCR surface impound- and construction plans for the CCR
ment, then the owner or operator of unit, which must include, to the extent
the CCR unit is no longer subject to feasible, the information specified in
the requirement to prepare and main- paragraphs (c)(1)(i) through (xi) of this
tain a written EAP beginning on the section.
date the periodic hazard potential as- (i) The name and address of the per-
sessment documentation is placed in son(s) owning or operating the CCR
the facility’s operating record as re- unit; the name associated with the
quired by § 257.105(f)(5). CCR unit; and the identification num-
(B) If the owner or operator of a CCR ber of the CCR unit if one has been as-
unit classified as a low hazard poten- signed by the state.
tial CCR surface impoundment subse- (ii) The location of the CCR unit
quently determines that the CCR unit identified on the most recent U.S. Geo-
is properly re-classified as either a logical Survey (USGS) 71⁄2 minute or 15
high hazard potential CCR surface im- minute topographic quadrangle map, or
poundment or a significant hazard po- a topographic map of equivalent scale
tential CCR surface impoundment, if a USGS map is not available.
then the owner or operator of the CCR (iii) A statement of the purpose for
unit must prepare a written EAP for which the CCR unit is being used.
the CCR unit as required by paragraph (iv) The name and size in acres of the
(a)(3)(i) of this section within six watershed within which the CCR unit
months of completing such periodic is located.
hazard potential assessment. (v) A description of the physical and
(iv) The owner or operator of the CCR engineering properties of the founda-
unit must obtain a certification from a tion and abutment materials on which
qualified professional engineer stating the CCR unit is constructed.
that the written EAP, and any subse- (vi) A statement of the type, size,
quent amendment of the EAP, meets range, and physical and engineering
the requirements of paragraph (a)(3) of properties of the materials used in con-
this section. structing each zone or stage of the CCR

(v) Activation of the EAP. The EAP unit; the method of site preparation
must be implemented once events or and construction of each zone of the
458
CCR unit; and the dates of construc- minimum, document whether the CCR
tion of each successive stage of con- unit has been designed, constructed,
struction of the CCR unit. operated, and maintained with:
(vii) At a scale that details engineer- (i) Stable foundations and abut-
ing structures and appurtenances rel- ments;
evant to the design, construction, oper- (ii) Adequate slope protection to pro-
ation, and maintenance of the CCR tect against surface erosion, wave ac-
unit, detailed dimensional drawings of tion, and adverse effects of sudden
the CCR unit, including a plan view drawdown;
and cross sections of the length and (iii) Dikes mechanically compacted
width of the CCR unit, showing all to a density sufficient to withstand the
zones, foundation improvements, drain- range of loading conditions in the CCR
age provisions, spillways, diversion unit;
ditches, outlets, instrument locations, (iv) Vegetated slopes of dikes and
and slope protection, in addition to the surrounding areas not to exceed a
normal operating pool surface ele- height of six inches above the slope of
vation and the maximum pool surface the dike, except for slopes which have
elevation following peak discharge an alternate form or forms of slope pro-
from the inflow design flood, the ex- tection;
pected maximum depth of CCR within (v) A single spillway or a combina-
the CCR surface impoundment, and any tion of spillways configured as speci-
identifiable natural or manmade fea- fied in paragraph (d)(1)(v)(A) of this
tures that could adversely affect oper- section. The combined capacity of all
ation of the CCR unit due to malfunc- spillways must be designed, con-
tion or mis-operation. structed, operated, and maintained to
(viii) A description of the type, pur- adequately manage flow during and fol-
pose, and location of existing instru- lowing the peak discharge from the
mentation. event specified in paragraph (d)(1)(v)(B)
(ix) Area-capacity curves for the CCR of this section.
unit. (A) All spillways must be either:
(x) A description of each spillway and (1) Of non-erodible construction and
diversion design features and capac- designed to carry sustained flows; or
ities and calculations used in their de- (2) Earth- or grass-lined and designed
termination. to carry short-term, infrequent flows
(xi) The construction specifications at non-erosive velocities where sus-
and provisions for surveillance, maintained flows are not expected.
tenance, and repair of the CCR unit. (B) The combined capacity of all
(xii) Any record or knowledge of spillways must adequately manage
structural instability of the CCR unit. flow during and following the peak dis-
(2) Changes in the design and construc- charge from a:
tion. If there is a significant change to (1) Probable maximum flood (PMF)
any information compiled under para- for a high hazard potential CCR surface
graph (c)(1) of this section, the owner impoundment; or
or operator of the CCR unit must up- (2) 1000-year flood for a significant
date the relevant information and hazard potential CCR surface impound-
place it in the facility’s operating ment; or
record as required by § 257.105(f)(13). (3) 100-year flood for a low hazard po-
(d) Periodic structural stability assess- tential CCR surface impoundment.
ments. (1) The owner or operator of the (vi) Hydraulic structures underlying
CCR unit must conduct initial and the base of the CCR unit or passing
periodic structural stability assess- through the dike of the CCR unit that
ments and document whether the de- maintain structural integrity and are
sign, construction, operation, and free of significant deterioration, defor-
maintenance of the CCR unit is con- mation, distortion, bedding defi-
sistent with recognized and generally ciencies, sedimentation, and debris
accepted good engineering practices for which may negatively affect the oper-
the maximum volume of CCR and CCR ation of the hydraulic structure; and
wastewater which can be impounded (vii) For CCR units with downstream
therein. The assessment must, at a slopes which can be inundated by the
459
§ 257.74 40 CFR Ch. I (7–1–21 Edition)
pool of an adjacent water body, such as (iv) The calculated seismic factor of
a river, stream or lake, downstream safety must equal or exceed 1.00.
slopes that maintain structural sta- (v) For dikes constructed of soils
bility during low pool of the adjacent that have susceptibility to lique-
water body or sudden drawdown of the faction, the calculated liquefaction fac-
adjacent water body. tor of safety must equal or exceed 1.20.
(2) The periodic assessment described (2) The owner or operator of the CCR
in paragraph (d)(1) of this section must unit must obtain a certification from a
identify any structural stability defi- qualified professional engineer stating
ciencies associated with the CCR unit that the initial assessment and each
in addition to recommending correc- subsequent periodic assessment speci-
tive measures. If a deficiency or a re- fied in paragraph (e)(1) of this section
lease is identified during the periodic meets the requirements of this section.
assessment, the owner or operator unit (f) Timeframes for periodic assess-
must remedy the deficiency or release ments—(1) Initial assessments. Except as
as soon as feasible and prepare docu- provided by paragraph (f)(2) of this sec-
mentation detailing the corrective tion, the owner or operator of the CCR
measures taken. unit must complete the initial assess-
(3) The owner or operator of the CCR ments required by paragraphs (a)(2),
unit must obtain a certification from a (d), and (e) of this section prior to the
qualified professional engineer stating initial receipt of CCR in the unit. The
that the initial assessment and each owner or operator has completed an
subsequent periodic assessment was initial assessment when the owner or
conducted in accordance with the re- operator has placed the assessment re-
quirements of this section. quired by paragraphs (a)(2), (d), and (e)
(e) Periodic safety factor assessments. of this section in the facility’s oper-
(1) The owner or operator must conduct ating record as required by
an initial and periodic safety factor as- § 257.105(f)(5), (10), and (12).
sessments for each CCR unit and docu- (2) Frequency for conducting periodic
ment whether the calculated factors of assessments. The owner or operator of
safety for each CCR unit achieve the the CCR unit must conduct and com-
minimum safety factors specified in plete the assessments required by para-
paragraphs (e)(1)(i) through (v) of this graphs (a)(2), (d), and (e) of this section
section for the critical cross section of every five years. The date of com-
the embankment. The critical cross pleting the initial assessment is the
section is the cross section anticipated basis for establishing the deadline to
to be the most susceptible of all cross complete the first subsequent assess-
sections to structural failure based on ment. The owner or operator may com-
appropriate engineering consider- plete any required assessment prior to
ations, including loading conditions. the required deadline provided the
The safety factor assessments must be owner or operator places the completed
supported by appropriate engineering assessment(s) into the facility’s oper-
calculations. ating record within a reasonable
(i) The calculated static factor of amount of time. In all cases, the dead-
safety under the end-of-construction line for completing subsequent assess-
loading condition must equal or exceed ments is based on the date of com-
1.30. The assessment of this loading pleting the previous assessment. For
condition is only required for the ini- purposes of this paragraph (f)(2), the
tial safety factor assessment and is not owner or operator has completed an as-
required for subsequent assessments. sessment when the relevant assess-
(ii) The calculated static factor of ment(s) required by paragraphs (a)(2),
safety under the long-term, maximum (d), and (e) of this section has been
storage pool loading condition must placed in the facility’s operating
equal or exceed 1.50. record as required by § 257.105(f)(5), (10),
(iii) The calculated static factor of and (12).
safety under the maximum surcharge (3) Failure to document minimum safety
pool loading condition must equal or factors during the initial assessment.
exceed 1.40. Until the date an owner or operator of
460
a CCR unit documents that the cal- enclosure or partial enclosure; oper-
culated factors of safety achieve the ating a water spray or fogging system;
minimum safety factors specified in reducing fall distances at material
paragraphs (e)(1)(i) through (v) of this drop points; using wind barriers, com-
section, the owner or operator is pro- paction, or vegetative covers; estab-
hibited from placing CCR in such unit. lishing and enforcing reduced vehicle
(4) Closure of the CCR unit. An owner speed limits; paving and sweeping
or operator of a CCR unit who either roads; covering trucks transporting
fails to complete a timely periodic CCR; reducing or halting operations
safety factor assessment or fails to during high wind events; or applying a
demonstrate minimum safety factors daily cover.
as required by paragraph (e) of this sec- (2) If the owner or operator operates
tion is subject to the requirements of a CCR landfill or any lateral expansion
§ 257.101(c). of a CCR landfill, the CCR fugitive dust
(g) The owner or operator of the CCR control plan must include procedures
unit must comply with the record- to emplace CCR as conditioned CCR.
keeping requirements specified in Conditioned CCR means wetting CCR
§ 257.105(f), the notification require- with water to a moisture content that
ments specified in § 257.106(f), and the will prevent wind dispersal, but will
internet requirements specified in not result in free liquids. In lieu of
§ 257.107(f). water, CCR conditioning may be ac-
complished with an appropriate chem-
OPERATING CRITERIA
ical dust suppression agent.
§ 257.80 Air criteria. (3) The CCR fugitive dust control
plan must include procedures to log
(a) The owner or operator of a CCR
citizen complaints received by the
landfill, CCR surface impoundment, or
owner or operator involving CCR fugi-
any lateral expansion of a CCR unit
tive dust events at the facility.
must adopt measures that will effec-
tively minimize CCR from becoming (4) The CCR fugitive dust control
airborne at the facility, including CCR plan must include a description of the
fugitive dust originating from CCR procedures the owner or operator will
units, roads, and other CCR manage- follow to periodically assess the effec-
ment and material handling activities. tiveness of the control plan.
(b) CCR fugitive dust control plan. The (5) The owner or operator of a CCR
owner or operator of the CCR unit unit must prepare an initial CCR fugi-
must prepare and operate in accord- tive dust control plan for the facility
ance with a CCR fugitive dust control no later than October 19, 2015, or by ini-
plan as specified in paragraphs (b)(1) tial receipt of CCR in any CCR unit at
through (7) of this section. This re- the facility if the owner or operator be-
quirement applies in addition to, not in comes subject to this subpart after Oc-
place of, any applicable standards tober 19, 2015. The owner or operator
under the Occupational Safety and has completed the initial CCR fugitive
Health Act. dust control plan when the plan has
(1) The CCR fugitive dust control been placed in the facility’s operating
plan must identify and describe the record as required by § 257.105(g)(1).
CCR fugitive dust control measures the (6) Amendment of the plan. The owner
owner or operator will use to minimize or operator of a CCR unit subject to
CCR from becoming airborne at the fa- the requirements of this section may
cility. The owner or operator must se- amend the written CCR fugitive dust
lect, and include in the CCR fugitive control plan at any time provided the
dust control plan, the CCR fugitive revised plan is placed in the facility’s
dust control measures that are most operating record as required by
appropriate for site conditions, along § 257.105(g)(1). The owner or operator
with an explanation of how the meas- must amend the written plan whenever
ures selected are applicable and appro- there is a change in conditions that
priate for site conditions. Examples of would substantially affect the written
control measures that may be appro- plan in effect, such as the construction
priate include: Locating CCR inside an and operation of a new CCR unit.
461
§ 257.81 40 CFR Ch. I (7–1–21 Edition)
(7) The owner or operator must ob- cordance with the surface water re-
tain a certification from a qualified quirements under § 257.3–3.
professional engineer or approval from (c) Run-on and run-off control system
the Participating State Director or ap- plan—(1) Content of the plan. The owner
proval from EPA where EPA is the per- or operator must prepare initial and
mitting authority that the initial CCR periodic run-on and run-off control sys-
fugitive dust control plan, or any sub- tem plans for the CCR unit according
sequent amendment of it, meets the re- to the timeframes specified in para-
quirements of this section. graphs (c)(3) and (4) of this section.
(c) Annual CCR fugitive dust control re- These plans must document how the
port. The owner or operator of a CCR run-on and run-off control systems
unit must prepare an annual CCR fugi- have been designed and constructed to
tive dust control report that includes a meet the applicable requirements of
description of the actions taken by the this section. Each plan must be sup-
owner or operator to control CCR fugi- ported by appropriate engineering cal-
tive dust, a record of all citizen com- culations. The owner or operator has
plaints, and a summary of any correc- completed the initial run-on and run-
tive measures taken. The initial an- off control system plan when the plan
nual report must be completed no later has been placed in the facility’s oper-
than 14 months after placing the initial ating record as required by
CCR fugitive dust control plan in the § 257.105(g)(3).
facility’s operating record. The dead- (2) Amendment of the plan. The owner
line for completing a subsequent report or operator may amend the written
is one year after the date of completing run-on and run-off control system plan
the previous report. For purposes of at any time provided the revised plan
this paragraph (c), the owner or oper- is placed in the facility’s operating
ator has completed the annual CCR fu- record as required by § 257.105(g)(3). The
gitive dust control report when the owner or operator must amend the
plan has been placed in the facility’s written run-on and run-off control sys-
operating record as required by tem plan whenever there is a change in
§ 257.105(g)(2). conditions that would substantially af-
(d) The owner or operator of the CCR fect the written plan in effect.
unit must comply with the record- (3) Timeframes for preparing the initial
keeping requirements specified in plan—(i) Existing CCR landfills. The
§ 257.105(g), the notification require- owner or operator of the CCR unit
ments specified in § 257.106(g), and the
must prepare the initial run-on and
internet requirements specified in
run-off control system plan no later
§ 257.107(g).
than October 17, 2016.
[80 FR 21468, Apr. 17, 2015, as amended at 83 (ii) New CCR landfills and any lateral
FR 36452, July 30, 2018] expansion of a CCR landfill. The owner
or operator must prepare the initial
§ 257.81 Run-on and run-off controls run-on and run-off control system plan
for CCR landfills. no later than the date of initial receipt
(a) The owner or operator of an exist- of CCR in the CCR unit.
ing or new CCR landfill or any lateral (4) Frequency for revising the plan. The
expansion of a CCR landfill must de- owner or operator of the CCR unit
sign, construct, operate, and maintain: must prepare periodic run-on and run-
(1) A run-on control system to pre- off control system plans required by
vent flow onto the active portion of the paragraph (c)(1) of this section every
CCR unit during the peak discharge five years. The date of completing the
from a 24-hour, 25-year storm; and initial plan is the basis for establishing
(2) A run-off control system from the the deadline to complete the first sub-
active portion of the CCR unit to col- sequent plan. The owner or operator
lect and control at least the water vol- may complete any required plan prior
ume resulting from a 24-hour, 25-year to the required deadline provided the
storm. owner or operator places the completed

(b) Run-off from the active portion of plan into the facility’s operating
the CCR unit must be handled in ac- record within a reasonable amount of
462
time. In all cases, the deadline for com- mined under § 257.73(a)(2) or
pleting a subsequent plan is based on § 257.74(a)(2), the 1,000-year flood;
the date of completing the previous (iii) For a low hazard potential CCR
plan. For purposes of this paragraph surface impoundment, as determined
(c)(4), the owner or operator has com- under § 257.73(a)(2) or § 257.74(a)(2), the
pleted a periodic run-on and run-off 100-year flood; or
control system plan when the plan has (iv) For an incised CCR surface im-
been placed in the facility’s operating poundment, the 25-year flood.
record as required by § 257.105(g)(3). (b) Discharge from the CCR unit
(5) The owner or operator must ob- must be handled in accordance with
tain a certification from a qualified the surface water requirements under
professional engineer or approval from § 257.3–3.
the Participating State Director or ap- (c) Inflow design flood control system
proval from EPA where EPA is the per- plan—(1) Content of the plan. The owner
mitting authority stating that the ini- or operator must prepare initial and
tial and periodic run-on and run-off periodic inflow design flood control
control system plans meet the require- system plans for the CCR unit accord-
ments of this section. ing to the timeframes specified in para-
(d) The owner or operator of the CCR graphs (c)(3) and (4) of this section.
unit must comply with the record- These plans must document how the
keeping requirements specified in inflow design flood control system has
§ 257.105(g), the notification require- been designed and constructed to meet
ments specified in § 257.106(g), and the the requirements of this section. Each
internet requirements specified in plan must be supported by appropriate
§ 257.107(g). engineering calculations. The owner or
operator of the CCR unit has completed
[80 FR 21468, Apr. 17, 2015, as amended at 83 the inflow design flood control system
FR 36452, July 30, 2018]
plan when the plan has been placed in
§ 257.82 Hydrologic and hydraulic ca- the facility’s operating record as re-
pacity requirements for CCR sur- quired by § 257.105(g)(4).
face impoundments. (2) Amendment of the plan. The owner
or operator of the CCR unit may amend
(a) The owner or operator of an exist- the written inflow design flood control
ing or new CCR surface impoundment system plan at any time provided the
or any lateral expansion of a CCR sur- revised plan is placed in the facility’s
face impoundment must design, con- operating record as required by
struct, operate, and maintain an inflow § 257.105(g)(4). The owner or operator
design flood control system as specified must amend the written inflow design
in paragraphs (a)(1) and (2) of this sec- flood control system plan whenever
tion. there is a change in conditions that
(1) The inflow design flood control would substantially affect the written
system must adequately manage flow plan in effect.
into the CCR unit during and following (3) Timeframes for preparing the initial
the peak discharge of the inflow design plan—(i) Existing CCR surface impound-
flood specified in paragraph (a)(3) of ments. The owner or operator of the
this section. CCR unit must prepare the initial in-
(2) The inflow design flood control flow design flood control system plan
system must adequately manage flow no later than October 17, 2016.
from the CCR unit to collect and con- (ii) New CCR surface impoundments
trol the peak discharge resulting from and any lateral expansion of a CCR sur-
the inflow design flood specified in face impoundment. The owner or oper-
paragraph (a)(3) of this section. ator must prepare the initial inflow de-
(3) The inflow design flood is: sign flood control system plan no later
(i) For a high hazard potential CCR than the date of initial receipt of CCR
surface impoundment, as determined in the CCR unit.
under § 257.73(a)(2) or § 257.74(a)(2), the (4) Frequency for revising the plan. The
probable maximum flood; owner or operator must prepare peri-

(ii) For a significant hazard potential odic inflow design flood control system
CCR surface impoundment, as deter- plans required by paragraph (c)(1) of
463
§ 257.83 40 CFR Ch. I (7–1–21 Edition)
this section every five years. The date flow or discharge of debris or sediment;
of completing the initial plan is the and
basis for establishing the deadline to (iii) At intervals not exceeding 30
complete the first periodic plan. The days, monitor all CCR unit instrumen-
owner or operator may complete any tation.
required plan prior to the required (iv) The results of the inspection by a
deadline provided the owner or oper- qualified person must be recorded in
ator places the completed plan into the the facility’s operating record as re-
facility’s operating record within a rea- quired by § 257.105(g)(5).
sonable amount of time. In all cases, (2) Timeframes for inspections by a
the deadline for completing a subse- qualified person—(i) Existing CCR surface
quent plan is based on the date of com- impoundments. The owner or operator of
pleting the previous plan. For purposes the CCR unit must initiate the inspec-
of this paragraph (c)(4), the owner or tions required under paragraph (a) of
operator has completed an inflow de- this section no later than October 19,
sign flood control system plan when 2015.
the plan has been placed in the facili-
(ii) New CCR surface impoundments
ty’s operating record as required by
and any lateral expansion of a CCR sur-
§ 257.105(g)(4).
face impoundment. The owner or oper-
(5) The owner or operator must ob- ator of the CCR unit must initiate the
tain a certification from a qualified inspections required under paragraph
professional engineer or approval from (a) of this section upon initial receipt
the Participating State Director or ap- of CCR by the CCR unit.
proval from EPA where EPA is the per-
(b) Annual inspections by a qualified
mitting authority stating that the ini-
professional engineer. (1) If the existing
tial and periodic inflow design flood
or new CCR surface impoundment or
control system plans meet the require-
any lateral expansion of the CCR sur-
ments of this section.
face impoundment is subject to the
(d) The owner or operator of the CCR
periodic structural stability assess-
unit must comply with the record-
ment requirements under § 257.73(d) or
keeping requirements specified in
§ 257.74(d), the CCR unit must addition-
§ 257.105(g), the notification require-
ally be inspected on a periodic basis by
ments specified in § 257.106(g), and the
a qualified professional engineer to en-
internet requirements specified in
sure that the design, construction, op-
§ 257.107(g).
eration, and maintenance of the CCR
[80 FR 21468, Apr. 17, 2015, as amended at 83 unit is consistent with recognized and
FR 36451, July 30, 2018] generally accepted good engineering
standards. The inspection must, at a
§ 257.83 Inspection requirements for minimum, include:
CCR surface impoundments. (i) A review of available information
(a) Inspections by a qualified person. (1) regarding the status and condition of
All CCR surface impoundments and the CCR unit, including, but not lim-
any lateral expansion of a CCR surface ited to, files available in the operating
impoundment must be examined by a record (e.g., CCR unit design and con-
qualified person as follows: struction information required by
(i) At intervals not exceeding seven §§ 257.73(c)(1) and 257.74(c)(1), previous
days, inspect for any appearances of ac- periodic structural stability assess-
tual or potential structural weakness ments required under §§ 257.73(d) and
and other conditions which are dis- 257.74(d), the results of inspections by a
rupting or have the potential to dis- qualified person, and results of pre-
rupt the operation or safety of the CCR vious annual inspections);
unit; (ii) A visual inspection of the CCR
(ii) At intervals not exceeding seven unit to identify signs of distress or
days, inspect the discharge of all out- malfunction of the CCR unit and ap-
lets of hydraulic structures which pass purtenant structures; and
underneath the base of the surface im- (iii) A visual inspection of any hy-
poundment or through the dike of the draulic structures underlying the base
CCR unit for abnormal discoloration, of the CCR unit or passing through the
464
dike of the CCR unit for structural inspection report is the basis for estab-
tegrity and continued safe and reliable lishing the deadline to complete the
operation. first subsequent inspection. Any re-
(2) Inspection report. The qualified quired inspection may be conducted
professional engineer must prepare a prior to the required deadline provided
report following each inspection that the owner or operator places the com-
addresses the following: pleted inspection report into the facili-
(i) Any changes in geometry of the ty’s operating record within a reason-
impounding structure since the pre- able amount of time. In all cases, the
vious annual inspection; deadline for completing subsequent in-
(ii) The location and type of existing spection reports is based on the date of
instrumentation and the maximum re- completing the previous inspection re-
corded readings of each instrument port. For purposes of this section, the
since the previous annual inspection; owner or operator has completed an in-
(iii) The approximate minimum, spection when the inspection report
maximum, and present depth and ele- has been placed in the facility’s oper-
vation of the impounded water and ating record as required by
CCR since the previous annual inspec- § 257.105(g)(6).
tion; (ii) In any calendar year in which
(iv) The storage capacity of the im- both the periodic inspection by a quali-
pounding structure at the time of the fied professional engineer and the quin-
inspection; quennial (occurring every five years)
(v) The approximate volume of the structural stability assessment by a
impounded water and CCR at the time qualified professional engineer required
of the inspection; by §§ 257.73(d) and 257.74(d) are required
(vi) Any appearances of an actual or to be completed, the annual inspection
potential structural weakness of the is not required, provided the structural
CCR unit, in addition to any existing stability assessment is completed dur-
conditions that are disrupting or have ing the calendar year. If the annual in-
the potential to disrupt the operation spection is not conducted in a year as
and safety of the CCR unit and appur- provided by this paragraph (b)(4)(ii),
tenant structures; and the deadline for completing the next
(vii) Any other change(s) which may annual inspection is one year from the
have affected the stability or operation date of completing the quinquennial
of the impounding structure since the structural stability assessment.
previous annual inspection. (5) If a deficiency or release is identi-
(3) Timeframes for conducting the ini- fied during an inspection, the owner or
tial inspection—(i) Existing CCR surface operator must remedy the deficiency or
impoundments. The owner or operator of release as soon as feasible and prepare
the CCR unit must complete the initial documentation detailing the corrective
inspection required by paragraphs measures taken.
(b)(1) and (2) of this section no later (c) The owner or operator of the CCR
than January 19, 2016. unit must comply with the record-
(ii) New CCR surface impoundments keeping requirements specified in
and any lateral expansion of a CCR sur- § 257.105(g), the notification require-
face impoundment. The owner or oper- ments specified in § 257.106(g), and the
ator of the CCR unit must complete internet requirements specified in
the initial annual inspection required § 257.107(g).
by paragraphs (b)(1) and (2) of this sec-
tion is completed no later than 14 [80 FR 21468, Apr. 17, 2015, as amended at 80
months following the date of initial re- FR 37992, July 2, 2015]
ceipt of CCR in the CCR unit.
(4) Frequency of inspections. (i) Except § 257.84 Inspection requirements for
as provided for in paragraph (b)(4)(ii) of CCR landfills.
this section, the owner or operator of (a) Inspections by a qualified person. (1)
the CCR unit must conduct the inspec- All CCR landfills and any lateral ex-
tion required by paragraphs (b)(1) and pansion of a CCR landfill must be ex-
(2) of this section on an annual basis. amined by a qualified person as fol-
The date of completing the initial in- lows:
465
§ 257.84 40 CFR Ch. I (7–1–21 Edition)
(i) At intervals not exceeding seven the potential to disrupt the operation
days, inspect for any appearances of ac- and safety of the CCR unit; and
tual or potential structural weakness (iv) Any other change(s) which may
and other conditions which are dis- have affected the stability or operation
rupting or have the potential to dis- of the CCR unit since the previous an-
rupt the operation or safety of the CCR nual inspection.
unit; and (3) Timeframes for conducting the ini-
(ii) The results of the inspection by a tial inspection—(i) Existing CCR landfills.
qualified person must be recorded in The owner or operator of the CCR unit
the facility’s operating record as re- must complete the initial inspection
quired by § 257.105(g)(8). required by paragraphs (b)(1) and (2) of
(2) Timeframes for inspections by a this section no later than January 19,
qualified person—(i) Existing CCR land- 2016.
fills. The owner or operator of the CCR (ii) New CCR landfills and any lateral
unit must initiate the inspections re- expansion of a CCR landfill. The owner
quired under paragraph (a) of this sec- or operator of the CCR unit must com-
tion no later than October 19, 2015. plete the initial annual inspection re-
(ii) New CCR landfills and any lateral quired by paragraphs (b)(1) and (2) of
expansion of a CCR landfill. The owner this section no later than 14 months
or operator of the CCR unit must ini- following the date of initial receipt of
tiate the inspections required under CCR in the CCR unit.
paragraph (a) of this section upon ini- (4) Frequency of inspections. The
tial receipt of CCR by the CCR unit. owner or operator of the CCR unit
(b) Annual inspections by a qualified must conduct the inspection required
professional engineer. (1) Existing and by paragraphs (b)(1) and (2) of this sec-
new CCR landfills and any lateral ex- tion on an annual basis. The date of
pansion of a CCR landfill must be in- completing the initial inspection re-
spected on a periodic basis by a quali- port is the basis for establishing the
fied professional engineer to ensure deadline to complete the first subse-
that the design, construction, oper- quent inspection. Any required inspec-
ation, and maintenance of the CCR tion may be conducted prior to the re-
unit is consistent with recognized and quired deadline provided the owner or
generally accepted good engineering operator places the completed inspec-
standards. The inspection must, at a tion report into the facility’s operating
minimum, include: record within a reasonable amount of
(i) A review of available information time. In all cases, the deadline for com-
regarding the status and condition of pleting subsequent inspection reports
the CCR unit, including, but not lim- is based on the date of completing the
ited to, files available in the operating previous inspection report. For pur-
record (e.g., the results of inspections poses of this section, the owner or op-
by a qualified person, and results of erator has completed an inspection
previous annual inspections); and when the inspection report has been
(ii) A visual inspection of the CCR placed in the facility’s operating
unit to identify signs of distress or record as required by § 257.105(g)(9).
malfunction of the CCR unit. (5) If a deficiency or release is identi-
(2) Inspection report. The qualified fied during an inspection, the owner or
professional engineer must prepare a operator must remedy the deficiency or
report following each inspection that release as soon as feasible and prepare
addresses the following: documentation detailing the corrective
(i) Any changes in geometry of the measures taken.
structure since the previous annual in- (c) The owner or operator of the CCR
spection; unit must comply with the record-
(ii) The approximate volume of CCR keeping requirements specified in
contained in the unit at the time of the § 257.105(g), the notification require-
inspection; ments specified in § 257.106(g), and the
(iii) Any appearances of an actual or internet requirements specified in
potential structural weakness of the § 257.107(g).

CCR unit, in addition to any existing [80 FR 21468, Apr. 17, 2015, as amended at 80
conditions that are disrupting or have FR 37992, July 2, 2015]
466
GROUNDWATER MONITORING AND (d) In the event of a release from a

CORRECTIVE ACTION CCR unit, the owner or operator must
immediately take all necessary meas-
§ 257.90 Applicability. ures to control the source(s) of releases
(a) All CCR landfills, CCR surface im- so as to reduce or eliminate, to the
poundments, and lateral expansions of maximum extent feasible, further re-
CCR units are subject to the ground- leases of contaminants into the envi-
water monitoring and corrective action ronment. The owner or operator of the
requirements under §§ 257.90 through CCR unit must comply with all appli-
257.99, except as provided in paragraph cable requirements in §§ 257.96, 257.97,
(g) of this section. and 257.98.
(b) Initial timeframes—(1) Existing CCR (e) Annual groundwater monitoring and
landfills and existing CCR surface im- corrective action report. For existing
poundments. No later than October 17, CCR landfills and existing CCR surface
2017, the owner or operator of the CCR impoundments, no later than January
unit must be in compliance with the 31, 2018, and annually thereafter, the
following groundwater monitoring re- owner or operator must prepare an an-
quirements: nual groundwater monitoring and cor-
(i) Install the groundwater moni- rective action report. For new CCR
toring system as required by § 257.91; landfills, new CCR surface impound-
(ii) Develop the groundwater sam- ments, and all lateral expansions of
pling and analysis program to include CCR units, the owner or operator must
selection of the statistical procedures prepare the initial annual groundwater
to be used for evaluating groundwater monitoring and corrective action re-
monitoring data as required by § 257.93; port no later than January 31 of the
(iii) Initiate the detection moni- year following the calendar year a
toring program to include obtaining a groundwater monitoring system has
minimum of eight independent samples been established for such CCR unit as
for each background and downgradient required by this subpart, and annually
well as required by § 257.94(b); and thereafter. For the preceding calendar
(iv) Begin evaluating the ground- year, the annual report must document
water monitoring data for statistically the status of the groundwater moni-
significant increases over background toring and corrective action program
levels for the constituents listed in ap- for the CCR unit, summarize key ac-
pendix III of this part as required by tions completed, describe any problems
§ 257.94. encountered, discuss actions to resolve
(2) New CCR landfills, new CCR surface the problems, and project key activi-
impoundments, and all lateral expansions ties for the upcoming year. For pur-
of CCR units. Prior to initial receipt of poses of this section, the owner or op-
CCR by the CCR unit, the owner or operator has prepared the annual report
erator must be in compliance with the when the report is placed in the facili-
groundwater monitoring requirements ty’s operating record as required by
specified in paragraph (b)(1)(i) and (ii) § 257.105(h)(1). At a minimum, the an-
of this section. In addition, the owner nual groundwater monitoring and cor-
or operator of the CCR unit must ini- rective action report must contain the
tiate the detection monitoring pro- following information, to the extent
gram to include obtaining a minimum available:
of eight independent samples for each (1) A map, aerial image, or diagram
background well as required by showing the CCR unit and all back-
§ 257.94(b). ground (or upgradient) and
(c) Once a groundwater monitoring downgradient monitoring wells, to in-
system and groundwater monitoring clude the well identification numbers,
program has been established at the that are part of the groundwater moni-
CCR unit as required by this subpart, toring program for the CCR unit;
the owner or operator must conduct (2) Identification of any monitoring
groundwater monitoring and, if nec- wells that were installed or decommis-
essary, corrective action throughout sioned during the preceding year, along
the active life and post-closure care pe- with a narrative description of why
riod of the CCR unit. those actions were taken;
467
§ 257.90 40 CFR Ch. I (7–1–21 Edition)
(3) In addition to all the monitoring (A) Identify those constituents listed
data obtained under §§ 257.90 through in appendix IV to this part and the
257.98, a summary including the num- names of the monitoring wells associ-
ber of groundwater samples that were ated with such an increase;
collected for analysis for each back- (B) Provide the date when the assess-
ground and downgradient well, the ment of corrective measures was initi-
dates the samples were collected, and ated for the CCR unit;
whether the sample was required by (C) Provide the date when the public
the detection monitoring or assess- meeting was held for the assessment of
ment monitoring programs; corrective measures for the CCR unit;
(4) A narrative discussion of any and
transition between monitoring pro- (D) Provide the date when the assess-
grams (e.g., the date and circumstances ment of corrective measures was com-
for transitioning from detection moni- pleted for the CCR unit.
toring to assessment monitoring in ad-
(v) Whether a remedy was selected
dition to identifying the constituent(s)
pursuant to § 257.97 during the current
detected at a statistically significant
annual reporting period, and if so, the
increase over background levels); and
date of remedy selection; and
(5) Other information required to be
included in the annual report as speci- (vi) Whether remedial activities were
fied in §§ 257.90 through 257.98. initiated or are ongoing pursuant to
(6) A section at the beginning of the § 257.98 during the current annual re-
annual report that provides an over- porting period.
view of the current status of ground- (f) The owner or operator of the CCR
water monitoring and corrective action unit must comply with the record-
programs for the CCR unit. At a min- keeping requirements specified in
imum, the summary must specify all of § 257.105(h), the notification require-
the following: ments specified in § 257.106(h), and the
(i) At the start of the current annual internet requirements specified in
reporting period, whether the CCR unit § 257.107(h).
was operating under the detection (g) Suspension of groundwater moni-
monitoring program in § 257.94 or the toring requirements. (1) The Partici-
assessment monitoring program in pating State Director or EPA where
§ 257.95; EPA is the permitting authority may
(ii) At the end of the current annual suspend the groundwater monitoring
reporting period, whether the CCR unit requirements under §§ 257.90 through
was operating under the detection 257.95 for a CCR unit for a period of up
monitoring program in § 257.94 or the to ten years, if the owner or operator
assessment monitoring program in provides written documentation that,
§ 257.95; based on the characteristics of the site
(iii) If it was determined that there in which the CCR unit is located, there
was a statistically significant increase is no potential for migration of any of
over background for one or more con- the constituents listed in appendices
stituents listed in appendix III to this III and IV to this part from that CCR
part pursuant to § 257.94(e): unit to the uppermost aquifer during
(A) Identify those constituents listed the active life of the CCR unit and the
in appendix III to this part and the post-closure care period. This dem-
names of the monitoring wells associ- onstration must be certified by a quali-
ated with such an increase; and fied professional engineer and approved
(B) Provide the date when the assess- by the Participating State Director or
ment monitoring program was initi- EPA where EPA is the permitting au-
ated for the CCR unit. thority, and must be based upon:
(iv) If it was determined that there (i) Site-specific field collected meas-
was a statistically significant level urements, sampling, and analysis of
above the groundwater protection physical, chemical, and biological proc-
standard for one or more constituents esses affecting contaminant fate and
listed in appendix IV to this part pur- transport, including at a minimum, the

suant to § 257.95(g) include all of the information necessary to evaluate or
following: interpret the effects of the following
468
properties or processes on contaminant year periods, provided the owner or op-

fate and transport: erator demonstrate that the standard
(A) Aquifer Characteristics, includ- in paragraph (g)(1) of this section con-
ing hydraulic conductivity, hydraulic tinues to be met for the unit. The
gradient, effective porosity, aquifer owner or operator must place each
thickness, degree of saturation, stra- completed demonstration in the facili-
tigraphy, degree of fracturing and sec- ty’s operating record.
ondary porosity of soils and bedrock, (3) The owner or operator of the CCR
aquifer heterogeneity, groundwater unit must include in the annual
discharge, and groundwater recharge groundwater monitoring and corrective
areas; action report required by § 257.90(e) or
(B) Waste Characteristics, including § 257.100(e)(5)(ii) any approved no mi-
quantity, type, and origin; gration demonstration.
(C) Climatic Conditions, including
annual precipitation, leachate genera- [80 FR 21468, Apr. 17, 2015, as amended at 81
FR 51807, Aug. 5, 2016; 83 FR 36452, July 30,
tion estimates, and effects on leachate 2018; 85 FR 53561, Aug. 28, 2020]
quality;
(D) Leachate Characteristics, includ- § 257.91 Groundwater monitoring sys-
ing leachate composition, solubility, tems.
density, the presence of immiscible
constituents, Eh, and pH; and (a) Performance standard. The owner
(E) Engineered Controls, including or operator of a CCR unit must install
liners, cover systems, and aquifer con- a groundwater monitoring system that
trols (e.g., lowering the water table). consists of a sufficient number of wells,
These must be evaluated under design installed at appropriate locations and
and failure conditions to estimate their depths, to yield groundwater samples
long-term residual performance. from the uppermost aquifer that:
(ii) Contaminant fate and transport (1) Accurately represent the quality
predictions that maximize contami- of background groundwater that has
nant migration and consider impacts not been affected by leakage from a
on human health and the environment. CCR unit. A determination of back-
(2) The owner or operator of the CCR ground quality may include sampling
unit may renew this suspension for ad- of wells that are not hydraulically
ditional ten year periods by submitting upgradient of the CCR management
written documentation that the site area where:
characteristics continue to ensure (i) Hydrogeologic conditions do not
there will be no potential for migration allow the owner or operator of the CCR
of any of the constituents listed in Ap- unit to determine what wells are hy-
pendices III and IV of this part. The draulically upgradient; or
documentation must include, at a min- (ii) Sampling at other wells will pro-
imum, the information specified in vide an indication of background
paragraphs (g)(1)(i) and (g)(1)(ii) of this groundwater quality that is as rep-
section and a certification by a quali- resentative or more representative
fied professional engineer and approved than that provided by the upgradient
by the State Director or EPA where wells; and
EPA is the permitting authority. The (2) Accurately represent the quality
owner or operator must submit the of groundwater passing the waste
documentation supporting their re- boundary of the CCR unit. The
newal request for the state’s or EPA’s downgradient monitoring system must
review and approval of their extension be installed at the waste boundary that
one year before the groundwater moni- ensures detection of groundwater con-
toring suspension is due to expire. If tamination in the uppermost aquifer.
the existing groundwater monitoring All potential contaminant pathways
extension expires or is not approved, must be monitored.
the owner or operator must begin (b) The number, spacing, and depths
groundwater monitoring according to of monitoring systems shall be deter-
paragraph (a) of this section within 90 mined based upon site-specific tech-
days. The owner or operator may con- nical information that must include
tinue to renew the suspension for ten- thorough characterization of:
469
§ 257.92 40 CFR Ch. I (7–1–21 Edition)
(1) Aquifer thickness, groundwater necessary, to enable collection of

flow rate, groundwater flow direction groundwater samples. The annular
including seasonal and temporal fluc- space (i.e., the space between the bore-
tuations in groundwater flow; and hole and well casing) above the sam-
(2) Saturated and unsaturated geo- pling depth must be sealed to prevent
logic units and fill materials overlying contamination of samples and the
the uppermost aquifer, materials com- groundwater.
prising the uppermost aquifer, and ma- (1) The owner or operator of the CCR
terials comprising the confining unit unit must document and include in the
defining the lower boundary of the up- operating record the design, installa-
permost aquifer, including, but not tion, development, and decommis-
limited to, thicknesses, stratigraphy, sioning of any monitoring wells,
lithology, hydraulic conductivities, piezometers and other measurement,
porosities and effective porosities. sampling, and analytical devices. The
(c) The groundwater monitoring sys- qualified professional engineer must be
tem must include the minimum num- given access to this documentation
ber of monitoring wells necessary to when completing the groundwater
meet the performance standards speci- monitoring system certification re-
fied in paragraph (a) of this section, quired under paragraph (f) of this sec-
based on the site-specific information tion.
specified in paragraph (b) of this sec- (2) The monitoring wells,
tion. The groundwater monitoring sys- piezometers, and other measurement,
tem must contain: sampling, and analytical devices must
(1) A minimum of one upgradient and be operated and maintained so that
three downgradient monitoring wells; they perform to the design specifica-
and tions throughout the life of the moni-
(2) Additional monitoring wells as toring program.
necessary to accurately represent the (f) The owner or operator must ob-
quality of background groundwater tain a certification from a qualified
that has not been affected by leakage professional engineer or approval from
from the CCR unit and the quality of the Participating State Director or ap-
groundwater passing the waste bound- proval from EPA where EPA is the per-
ary of the CCR unit. mitting authority stating that the
(d) The owner or operator of multiple groundwater monitoring system has
CCR units may install a multiunit been designed and constructed to meet
groundwater monitoring system in- the requirements of this section. If the
stead of separate groundwater moni- groundwater monitoring system in-
toring systems for each CCR unit. cludes the minimum number of moni-
(1) The multiunit groundwater monitoring wells specified in paragraph
toring system must be equally as capa- (c)(1) of this section, the certification
ble of detecting monitored constituents must document the basis supporting
at the waste boundary of the CCR unit this determination.
as the individual groundwater moni- (g) The owner or operator of the CCR
toring system specified in paragraphs unit must comply with the record-
(a) through (c) of this section for each keeping requirements specified in
CCR unit based on the following fac- § 257.105(h), the notification require-
tors: ments specified in § 257.106(h), and the
(i) Number, spacing, and orientation internet requirements specified in
of each CCR unit; § 257.107(h).
(ii) Hydrogeologic setting; [80 FR 21468, Apr. 17, 2015, as amended at 83
(iii) Site history; and FR 36453, July 30, 2018; 85 FR 53561, Aug. 28,
(iv) Engineering design of the CCR 2020]
unit.
(2) [Reserved] § 257.92 [Reserved]
(e) Monitoring wells must be cased in
a manner that maintains the integrity § 257.93 Groundwater sampling and
of the monitoring well borehole. This analysis requirements.

casing must be screened or perforated (a) The groundwater monitoring pro-
and packed with gravel or sand, where gram must include consistent sampling
470
and analysis procedures that are de- must be consistent with the statistical
signed to ensure monitoring results procedures chosen under paragraph (f)
that provide an accurate representa- of this section and the performance
tion of groundwater quality at the standards under paragraph (g) of this
background and downgradient wells re- section. The sampling procedures shall
quired by § 257.91. The owner or oper- be those specified under § 257.94(b)
ator of the CCR unit must develop a through (d) for detection monitoring,
sampling and analysis program that in- § 257.95(b) through (d) for assessment
cludes procedures and techniques for: monitoring, and § 257.96(b) for correc-
(1) Sample collection; tive action.
(2) Sample preservation and ship- (f) The owner or operator of the CCR
ment; unit must select one of the statistical
(3) Analytical procedures; methods specified in paragraphs (f)(1)
(4) Chain of custody control; and through (5) of this section to be used in
(5) Quality assurance and quality evaluating groundwater monitoring
control. data for each specified constituent. The
(b) The groundwater monitoring pro- statistical test chosen shall be con-
gram must include sampling and ana- ducted separately for each constituent
lytical methods that are appropriate in each monitoring well.
for groundwater sampling and that ac- (1) A parametric analysis of variance
curately measure hazardous constitu- followed by multiple comparison proce-
ents and other monitoring parameters dures to identify statistically signifi-
in groundwater samples. For purposes cant evidence of contamination. The
of §§ 257.90 through 257.98, the term con- method must include estimation and
stituent refers to both hazardous con- testing of the contrasts between each
stituents and other monitoring param- compliance well’s mean and the back-
eters listed in either appendix III or IV ground mean levels for each con-
of this part. stituent.
(c) Groundwater elevations must be (2) An analysis of variance based on
measured in each well immediately ranks followed by multiple comparison
prior to purging, each time ground- procedures to identify statistically sig-
water is sampled. The owner or oper- nificant evidence of contamination.
ator of the CCR unit must determine The method must include estimation
the rate and direction of groundwater and testing of the contrasts between
flow each time groundwater is sampled. each compliance well’s median and the
Groundwater elevations in wells which background median levels for each con-
monitor the same CCR management stituent.
area must be measured within a period (3) A tolerance or prediction interval
of time short enough to avoid temporal procedure, in which an interval for
variations in groundwater flow which each constituent is established from
could preclude accurate determination the distribution of the background
of groundwater flow rate and direction. data and the level of each constituent
(d) The owner or operator of the CCR in each compliance well is compared to
unit must establish background the upper tolerance or prediction limit.
groundwater quality in a hydraulically (4) A control chart approach that
upgradient or background well(s) for gives control limits for each con-
each of the constituents required in the stituent.
particular groundwater monitoring (5) Another statistical test method
program that applies to the CCR unit that meets the performance standards
as determined under § 257.94(a) or of paragraph (g) of this section.
§ 257.95(a). Background groundwater (6) The owner or operator of the CCR
quality may be established at wells unit must obtain a certification from a
that are not located hydraulically qualified professional engineer or ap-
upgradient from the CCR unit if it proval from the Participating State Di-
meets the requirements of § 257.91(a)(1). rector or approval from EPA where
(e) The number of samples collected EPA is the permitting authority stat-
when conducting detection monitoring ing that the selected statistical meth-
and assessment monitoring (for both od is appropriate for evaluating the
downgradient and background wells) groundwater monitoring data for the
471
§ 257.93 40 CFR Ch. I (7–1–21 Edition)
CCR management area. The certifi- levels of confidence and, for tolerance
cation must include a narrative de- intervals, the percentage of the popu-
scription of the statistical method se- lation that the interval must contain,
lected to evaluate the groundwater shall be such that this approach is at
monitoring data. least as effective as any other approach
(g) Any statistical method chosen in this section for evaluating ground-
under paragraph (f) of this section shall water data. These parameters shall be
comply with the following performance determined after considering the num-
standards, as appropriate, based on the ber of samples in the background data
statistical test method used: base, the data distribution, and the
(1) The statistical method used to range of the concentration values for
evaluate groundwater monitoring data each constituent of concern.
shall be appropriate for the distribu- (5) The statistical method must ac-
tion of constituents. Normal distribu- count for data below the limit of detec-
tions of data values shall use para- tion with one or more statistical proce-
metric methods. Non-normal distribu- dures that shall at least as effective as
tions shall use non-parametric meth- any other approach in this section for
ods. If the distribution of the constitu- evaluating groundwater data. Any
ents is shown by the owner or operator practical quantitation limit that is
of the CCR unit to be inappropriate for used in the statistical method shall be
a normal theory test, then the data the lowest concentration level that can
must be transformed or a distribution- be reliably achieved within specified
free (non-parametric) theory test must limits of precision and accuracy during
be used. If the distributions for the routine laboratory operating condi-
constituents differ, more than one stations that are available to the facility.
tistical method may be needed. (6) If necessary, the statistical meth-
(2) If an individual well comparison od must include procedures to control
procedure is used to compare an indi-
or correct for seasonal and spatial vari-
vidual compliance well constituent
ability as well as temporal correlation
concentration with background con-
in the data.
stituent concentrations or a ground-
water protection standard, the test (h) The owner or operator of the CCR
shall be done at a Type I error level no unit must determine whether or not
less than 0.01 for each testing period. If there is a statistically significant in-
a multiple comparison procedure is crease over background values for each
used, the Type I experiment wise error constituent required in the particular
rate for each testing period shall be no groundwater monitoring program that
less than 0.05; however, the Type I applies to the CCR unit, as determined
error of no less than 0.01 for individual under § 257.94(a) or § 257.95(a).
well comparisons must be maintained. (1) In determining whether a statis-
This performance standard does not tically significant increase has oc-
apply to tolerance intervals, prediction curred, the owner or operator must
intervals, or control charts. compare the groundwater quality of
(3) If a control chart approach is used each constituent at each monitoring
to evaluate groundwater monitoring well designated pursuant to
data, the specific type of control chart § 257.91(a)(2) or (d)(1) to the background
and its associated parameter values value of that constituent, according to
shall be such that this approach is at the statistical procedures and perform-
least as effective as any other approach ance standards specified under para-
in this section for evaluating ground- graphs (f) and (g) of this section.
water data. The parameter values shall (2) Within 90 days after completing
be determined after considering the sampling and analysis, the owner or
number of samples in the background operator must determine whether there
data base, the data distribution, and has been a statistically significant in-
the range of the concentration values crease over background for any con-
for each constituent of concern. stituent at each monitoring well.
(4) If a tolerance interval or a (i) The owner or operator must meas-

predictional interval is used to evalu- ure ‘‘total recoverable metals’’ con-
ate groundwater monitoring data, the centrations in measuring groundwater
472
quality. Measurement of total recover- alternative monitoring frequency for

able metals captures both the particu- repeated sampling and analysis for con-
late fraction and dissolved fraction of stituents listed in appendix III to this
metals in natural waters. Groundwater part during the active life and the post-
samples shall not be field-filtered prior closure care period based on the avail-
to analysis. ability of groundwater. If there is not
(j) The owner or operator of the CCR adequate groundwater flow to sample
unit must comply with the record- wells semiannually, the alternative
keeping requirements specified in frequency shall be no less than annual.
§ 257.105(h), the notification require- The need to vary monitoring frequency
ments specified in § 257.106(h), and the must be evaluated on a site-specific
Internet requirements specified in basis. The demonstration must be sup-
§ 257.107(h). ported by, at a minimum, the informa-
[80 FR 21468, Apr. 17, 2015, as amended at 83 tion specified in paragraphs (d)(1) and
FR 36453, July 30, 2018] (2) of this section.
(1) Information documenting that the
§ 257.94 Detection monitoring pro- need for less frequent sampling. The al-
gram.
ternative frequency must be based on
(a) The owner or operator of a CCR consideration of the following factors:
unit must conduct detection moni- (i) Lithology of the aquifer and un-
toring at all groundwater monitoring saturated zone;
wells consistent with this section. At a (ii) Hydraulic conductivity of the aq-
minimum, a detection monitoring pro- uifer and unsaturated zone; and
gram must include groundwater moni-
(iii) Groundwater flow rates.
toring for all constituents listed in ap-
pendix III to this part. (2) Information documenting that the
(b) Except as provided in paragraph alternative frequency will be no less ef-
(d) of this section, the monitoring fre- fective in ensuring that any leakage
quency for the constituents listed in from the CCR unit will be discovered
appendix III to this part shall be at within a timeframe that will not mate-
least semiannual during the active life rially delay establishment of an assess-
of the CCR unit and the post-closure ment monitoring program.
period. For existing CCR landfills and (3) The owner or operator must ob-
existing CCR surface impoundments, a tain a certification from a qualified
minimum of eight independent samples professional engineer or approval from
from each background and the Participating State Director or ap-
downgradient well must be collected proval from EPA where EPA is the per-
and analyzed for the constituents list- mitting authority stating that the
ed in appendix III and IV to this part demonstration for an alternative
no later than October 17, 2017. For new groundwater sampling and analysis fre-
CCR landfills, new CCR surface im- quency meets the requirements of this
poundments, and all lateral expansions section. The owner or operator must
of CCR units, a minimum of eight inde- include the demonstration providing
pendent samples for each background the basis for the alternative moni-
well must be collected and analyzed for toring frequency and the certification
the constituents listed in appendices by a qualified professional engineer or
III and IV to this part during the first the approval from the Participating
six months of sampling. State Director or approval from EPA
(c) The number of samples collected where EPA is the permitting authority
and analyzed for each background well in the annual groundwater monitoring
and downgradient well during subse- and corrective action report required
quent semiannual sampling events by § 257.90(e).
must be consistent with § 257.93(e), and (e) If the owner or operator of the
must account for any unique charac- CCR unit determines, pursuant to
teristics of the site, but must be at § 257.93(h) that there is a statistically
least one sample from each background significant increase over background
and downgradient well. levels for one or more of the constitu-

(d) The owner or operator of a CCR ents listed in appendix III to this part
unit may demonstrate the need for an at any monitoring well at the waste
473
§ 257.95 40 CFR Ch. I (7–1–21 Edition)
boundary specified under § 257.91(a)(2), § 257.105(h), the notification require-

the owner or operator must: ments specified in § 257.106(h), and the
(1) Except as provided for in para- Internet requirements specified in
graph (e)(2) of this section, within 90 § 257.107(h).
days of detecting a statistically signifi-
cant increase over background levels FR 36453, July 30, 2018]
for any constituent, establish an as-
sessment monitoring program meeting § 257.95 Assessment monitoring pro-
the requirements of § 257.95. gram.
(2) The owner or operator may dem-
(a) Assessment monitoring is re-
onstrate that a source other than the
quired whenever a statistically signifi-
CCR unit caused the statistically sig-
cant increase over background levels
nificant increase over background lev-
has been detected for one or more of
els for a constituent or that the statis-
the constituents listed in appendix III
tically significant increase resulted
to this part.
from error in sampling, analysis, sta-
tistical evaluation, or natural vari- (b) Within 90 days of triggering an as-
ation in groundwater quality. The sessment monitoring program, and an-
owner or operator must complete the nually thereafter, the owner or oper-
written demonstration within 90 days ator of the CCR unit must sample and
of detecting a statistically significant analyze the groundwater for all con-
increase over background levels to in- stituents listed in appendix IV to this
clude obtaining a certification from a part. The number of samples collected
qualified professional engineer or ap- and analyzed for each well during each
proval from the Participating State Di- sampling event must be consistent
rector or approval from EPA where with § 257.93(e), and must account for
EPA is the permitting authority any unique characteristics of the site,
verifying the accuracy of the informa- but must be at least one sample from
tion in the report. If a successful dem- each well.
onstration is completed within the 90- (c) The owner or operator of a CCR
day period, the owner or operator of unit may demonstrate the need for an
the CCR unit may continue with a de- alternative monitoring frequency for
tection monitoring program under this repeated sampling and analysis for con-
section. If a successful demonstration stituents listed in appendix IV to this
is not completed within the 90-day pe- part during the active life and the post-
riod, the owner or operator of the CCR closure care period based on the avail-
unit must initiate an assessment moni- ability of groundwater. If there is not
toring program as required under adequate groundwater flow to sample
§ 257.95. The owner or operator must wells semiannually, the alternative
also include the demonstration in the frequency shall be no less than annual.
annual groundwater monitoring and The need to vary monitoring frequency
corrective action report required by must be evaluated on a site-specific
§ 257.90(e), in addition to the certifi- basis. The demonstration must be sup-
cation by a qualified professional engi- ported by, at a minimum, the informa-
neer or approval from the Partici- tion specified in paragraphs (c)(1) and
pating State Director or approval from (2) of this section.
EPA where EPA is the permitting au- (1) Information documenting that the
thority. need for less frequent sampling. The al-
(3) The owner or operator of a CCR ternative frequency must be based on
unit must prepare a notification stat- consideration of the following factors:
ing that an assessment monitoring pro- (i) Lithology of the aquifer and un-
gram has been established. The owner saturated zone;
or operator has completed the notifica- (ii) Hydraulic conductivity of the aq-
tion when the notification is placed in uifer and unsaturated zone; and
the facility’s operating record as re- (iii) Groundwater flow rates.
quired by § 257.105(h)(5). (2) Information documenting that the
(f) The owner or operator of the CCR alternative frequency will be no less ef-
unit must comply with the record- fective in ensuring that any leakage
keeping requirements specified in from the CCR unit will be discovered
474
within a timeframe that will not mate- water protection standards established
rially delay the initiation of any nec- under paragraph (d)(2) of this section in
essary remediation measures. the annual groundwater monitoring
(3) The owner or operator must ob- and corrective action report required
tain a certification from a qualified by § 257.90(e).
professional engineer or approval from (e) If the concentrations of all con-
the Participating State Director or ap- stituents listed in appendices III and
proval from EPA where EPA is the per- IV to this part are shown to be at or
mitting authority stating that the below background values, using the
demonstration for an alternative statistical procedures in § 257.93(g), for
groundwater sampling and analysis fre- two consecutive sampling events, the
quency meets the requirements of this owner or operator may return to detec-
section. The owner or operator must tion monitoring of the CCR unit. The
include the demonstration providing owner or operator must prepare a noti-
the basis for the alternative moni- fication stating that detection moni-
toring frequency and the certification toring is resuming for the CCR unit.
by a qualified professional engineer or The owner or operator has completed
the approval from the Participating the notification when the notification
State Director or the approval from is placed in the facility’s operating
EPA where EPA is the permitting au- record as required by § 257.105(h)(7).
thority in the annual groundwater (f) If the concentrations of any con-
monitoring and corrective action re- stituent in appendices III and IV to
port required by § 257.90(e).
this part are above background values,
(d) After obtaining the results from
but all concentrations are below the
the initial and subsequent sampling
groundwater protection standard es-
events required in paragraph (b) of this
tablished under paragraph (h) of this
section, the owner or operator must:
section, using the statistical proce-
(1) Within 90 days of obtaining the re-
dures in § 257.93(g), the owner or oper-
sults, and on at least a semiannual
ator must continue assessment moni-
basis thereafter, resample all wells
toring in accordance with this section.
that were installed pursuant to the re-
quirements of § 257.91, conduct analyses (g) If one or more constituents in ap-
for all parameters in appendix III to pendix IV to this part are detected at
this part and for those constituents in statistically significant levels above
appendix IV to this part that are de- the groundwater protection standard
tected in response to paragraph (b) of established under paragraph (h) of this
this section, and record their con- section in any sampling event, the
centrations in the facility operating owner or operator must prepare a noti-
record. The number of samples col- fication identifying the constituents in
lected and analyzed for each back- appendix IV to this part that have ex-
ground well and downgradient well dur- ceeded the groundwater protection
ing subsequent semiannual sampling standard. The owner or operator has
events must be consistent with completed the notification when the
§ 257.93(e), and must account for any notification is placed in the facility’s
unique characteristics of the site, but operating record as required by
must be at least one sample from each § 257.105(h)(8). The owner or operator of
background and downgradient well; the CCR unit also must:
(2) Establish groundwater protection (1) Characterize the nature and ex-
standards for all constituents detected tent of the release and any relevant
pursuant to paragraph (b) or (d) of this site conditions that may affect the
section. The groundwater protection remedy ultimately selected. The char-
standards must be established in ac- acterization must be sufficient to sup-
cordance with paragraph (h) of this sec- port a complete and accurate assess-
tion; and ment of the corrective measures nec-
(3) Include the recorded concentra- essary to effectively clean up all re-
tions required by paragraph (d)(1) of leases from the CCR unit pursuant to
this section, identify the background § 257.96. Characterization of the release

concentrations established under includes the following minimum meas-
§ 257.94(b), and identify the ground- ures:
475
§ 257.95 40 CFR Ch. I (7–1–21 Edition)
(i) Install additional monitoring III and Appendix IV of this part are at
wells necessary to define the contami- or below background as specified in
nant plume(s); paragraph (e) of this section. The
(ii) Collect data on the nature and es- owner or operator must also include
timated quantity of material released the demonstration in the annual
including specific information on the groundwater monitoring and corrective
constituents listed in appendix IV of action report required by § 257.90(e), in
this part and the levels at which they addition to the certification by a quali-
are present in the material released; fied professional engineer or the ap-
(iii) Install at least one additional proval from the Participating State Di-
monitoring well at the facility bound- rector or the approval from EPA where
ary in the direction of contaminant mi-
EPA is the permitting authority.
gration and sample this well in accord-
ance with paragraph (d)(1) of this sec- (4) If a successful demonstration has
tion; and not been made at the end of the 90 day
(iv) Sample all wells in accordance period provided by paragraph (g)(3)(ii)
with paragraph (d)(1) of this section to of this section, the owner or operator
characterize the nature and extent of of the CCR unit must initiate the as-
the release. sessment of corrective measures re-
(2) Notify all persons who own the quirements under § 257.96.
land or reside on the land that directly (5) The owner or operator must pre-
overlies any part of the plume of con- pare a notification stating that an as-
tamination if contaminants have mi- sessment of corrective measures has
grated off-site if indicated by sampling been initiated.
of wells in accordance with paragraph (h) The owner or operator of the CCR
(g)(1) of this section. The owner or op- unit must establish a groundwater pro-
erator has completed the notifications tection standard for each constituent
when they are placed in the facility’s in appendix IV to this part detected in
operating record as required by the groundwater. The groundwater pro-
§ 257.105(h)(8). tection standard shall be:
(3) Within 90 days of finding that any
(1) For constituents for which a max-
of the constituents listed in appendix
imum contaminant level (MCL) has
IV to this part have been detected at a
statistically significant level exceeding been established under §§ 141.62 and
the groundwater protection standards 141.66 of this title, the MCL for that
the owner or operator must either: constituent;
(i) Initiate an assessment of correc- (2) For the following constituents:
tive measures as required by § 257.96; or (i) Cobalt 6 micrograms per liter (μg/
(ii) Demonstrate that a source other l);
than the CCR unit caused the contami- (ii) Lead 15 μg/l;
nation, or that the statistically signifi- (iii) Lithium 40 μg/l; and
cant increase resulted from error in (iv) Molybdenum 100 μg/l.
sampling, analysis, statistical evalua- (3) For constituents for which the
tion, or natural variation in ground- background level is higher than the
water quality. Any such demonstration levels identified under paragraphs
must be supported by a report that in- (h)(1) and (h)(2) of this section, the
cludes the factual or evidentiary basis background concentration.
for any conclusions and must be cer-
(i) The owner or operator of the CCR
tified to be accurate by a qualified pro-
unit must comply with the record-
fessional engineer or approval from the
Participating State Director or ap- keeping requirements specified in
proval from EPA where EPA is the per- § 257.105(h), the notification require-
mitting authority. If a successful dem- ments specified in § 257.106(h), and the
onstration is made, the owner or oper- Internet requirements specified in
ator must continue monitoring in ac- § 257.107(h).
cordance with the assessment moni- [80 FR 21468, Apr. 17, 2015, as amended at 83
toring program pursuant to this sec- FR 36453, July 30, 2018; 85 FR 53561, Aug. 28,
tion, and may return to detection mon- 2020]
itoring if the constituents in Appendix
476
§ 257.96 Assessment of corrective (2) The time required to begin and

measures. complete the remedy;
(a) Within 90 days of finding that any (3) The institutional requirements,
constituent listed in Appendix IV to such as state or local permit require-
this part has been detected at a statis- ments or other environmental or public
tically significant level exceeding the health requirements that may substan-
groundwater protection standard de- tially affect implementation of the
fined under § 257.95(h), or immediately remedy(s).
upon detection of a release from a CCR (d) The owner or operator must place
unit, the owner or operator must ini- the completed assessment of corrective
tiate an assessment of corrective meas- measures in the facility’s operating
ures to prevent further releases, to re- record. The assessment has been com-
mediate any releases and to restore af- pleted when it is placed in the facility’s
fected area to original conditions. The operating record as required by
assessment of corrective measures § 257.105(h)(10).
must be completed within 90 days, un- (e) The owner or operator must dis-
less the owner or operator dem- cuss the results of the corrective meas-
onstrates the need for additional time ures assessment at least 30 days prior
to complete the assessment of correc- to the selection of remedy, in a public
tive measures due to site-specific con- meeting with interested and affected
ditions or circumstances. The owner or parties.
operator must obtain a certification (f) The owner or operator of the CCR
from a qualified professional engineer unit must comply with the record-
or approval from the Participating keeping requirements specified in
State Director or approval from EPA § 257.105(h), the notification require-
where EPA is the permitting authority ments specified in § 257.106(h), and the
attesting that the demonstration is ac- Internet requirements specified in
curate. The 90-day deadline to com- § 257.107(h).
plete the assessment of corrective [80 FR 21468, Apr. 17, 2015, as amended at 83
measures may be extended for no FR 36454, July 30, 2018]
longer than 60 days. The owner or oper-
ator must also include the demonstra- § 257.97 Selection of remedy.
tion in the annual groundwater moni- (a) Based on the results of the correc-
toring and corrective action report re- tive measures assessment conducted
quired by § 257.90(e), in addition to the under § 257.96, the owner or operator
certification by a qualified professional must, as soon as feasible, select a rem-
engineer or the approval from the Par- edy that, at a minimum, meets the
ticipating State Director or the ap- standards listed in paragraph (b) of this
proval from EPA where EPA is the per- section. This requirement applies in
mitting authority. addition to, not in place of, any appli-
(b) The owner or operator of the CCR cable standards under the Occupational
unit must continue to monitor ground- Safety and Health Act. The owner or
water in accordance with the assess- operator must prepare a semiannual re-
ment monitoring program as specified port describing the progress in select-
in § 257.95. ing and designing the remedy. Upon se-
(c) The assessment under paragraph lection of a remedy, the owner or oper-
(a) of this section must include an ator must prepare a final report de-
analysis of the effectiveness of poten- scribing the selected remedy and how
tial corrective measures in meeting all it meets the standards specified in
of the requirements and objectives of paragraph (b) of this section. The
the remedy as described under § 257.97 owner or operator must obtain a cer-
addressing at least the following: tification from a qualified professional
(1) The performance, reliability, ease engineer or approval from the Partici-
of implementation, and potential im- pating State Director or approval from
pacts of appropriate potential rem- EPA where EPA is the permitting au-
edies, including safety impacts, cross- thority that the remedy selected meets
media impacts, and control of exposure the requirements of this section. The
to any residual contamination; report has been completed when it is
477
§ 257.97 40 CFR Ch. I (7–1–21 Edition)
placed in the operating record as re- (vii) Long-term reliability of the en-
quired by § 257.105(h)(12). gineering and institutional controls;
(b) Remedies must: and
(1) Be protective of human health and (viii) Potential need for replacement
the environment; of the remedy.
(2) Attain the groundwater protec- (2) The effectiveness of the remedy in
tion standard as specified pursuant to controlling the source to reduce fur-
§ 257.95(h); ther releases based on consideration of
(3) Control the source(s) of releases the following factors:
so as to reduce or eliminate, to the (i) The extent to which containment
maximum extent feasible, further re- practices will reduce further releases;
leases of constituents in appendix IV to and
this part into the environment; (ii) The extent to which treatment
(4) Remove from the environment as technologies may be used.
much of the contaminated material (3) The ease or difficulty of imple-
that was released from the CCR unit as menting a potential remedy(s) based on
is feasible, taking into account factors consideration of the following types of
such as avoiding inappropriate disturb- factors:
ance of sensitive ecosystems; (i) Degree of difficulty associated
(5) Comply with standards for man- with constructing the technology;
agement of wastes as specified in (ii) Expected operational reliability
§ 257.98(d). of the technologies;
(c) In selecting a remedy that meets (iii) Need to coordinate with and ob-
the standards of paragraph (b) of this tain necessary approvals and permits
section, the owner or operator of the from other agencies;
CCR unit shall consider the following (iv) Availability of necessary equip-
evaluation factors: ment and specialists; and
(1) The long- and short-term effec- (v) Available capacity and location of
tiveness and protectiveness of the po- needed treatment, storage, and dis-
tential remedy(s), along with the de- posal services.
gree of certainty that the remedy will (4) The degree to which community
prove successful based on consideration concerns are addressed by a potential
of the following: remedy(s).
(i) Magnitude of reduction of existing (d) The owner or operator must speci-
risks; fy as part of the selected remedy a
(ii) Magnitude of residual risks in schedule(s) for implementing and com-
terms of likelihood of further releases pleting remedial activities. Such a
due to CCR remaining following imple- schedule must require the completion
mentation of a remedy; of remedial activities within a reason-
(iii) The type and degree of long-term able period of time taking into consid-
management required, including moni- eration the factors set forth in para-
toring, operation, and maintenance; graphs (d)(1) through (6) of this section.
(iv) Short-term risks that might be The owner or operator of the CCR unit
posed to the community or the envi- must consider the following factors in
ronment during implementation of determining the schedule of remedial
such a remedy, including potential activities:
threats to human health and the envi- (1) Extent and nature of contamina-
ronment associated with excavation, tion, as determined by the character-
transportation, and re-disposal of con- ization required under § 257.95(g);
taminant; (2) Reasonable probabilities of reme-
(v) Time until full protection is dial technologies in achieving compli-
achieved; ance with the groundwater protection
(vi) Potential for exposure of humans standards established under § 257.95(h)
and environmental receptors to re- and other objectives of the remedy;
maining wastes, considering the poten- (3) Availability of treatment or dis-
tial threat to human health and the en- posal capacity for CCR managed during
vironment associated with excavation, implementation of the remedy;

transportation, re-disposal, or contain- (4) Potential risks to human health
ment; and the environment from exposure to
478
contamination prior to completion of tribute to the performance of any rem-

the remedy; edy that may be required pursuant to
(5) Resource value of the aquifer in- § 257.97. The following factors must be
cluding: considered by an owner or operator in
(i) Current and future uses; determining whether interim measures
(ii) Proximity and withdrawal rate of are necessary:
users; (i) Time required to develop and im-
(iii) Groundwater quantity and qual- plement a final remedy;
ity; (ii) Actual or potential exposure of
(iv) The potential damage to wildlife, nearby populations or environmental
crops, vegetation, and physical struc- receptors to any of the constituents
tures caused by exposure to CCR con- listed in appendix IV of this part;
stituents; (iii) Actual or potential contamina-
(v) The hydrogeologic characteristic tion of drinking water supplies or sen-
of the facility and surrounding land; sitive ecosystems;
and (iv) Further degradation of the
(vi) The availability of alternative groundwater that may occur if reme-
water supplies; and dial action is not initiated expedi-
(6) Other relevant factors. tiously;
(e) The owner or operator of the CCR (v) Weather conditions that may
unit must comply with the record- cause any of the constituents listed in
keeping requirements specified in appendix IV to this part to migrate or
§ 257.105(h), the notification require- be released;
ments specified in § 257.106(h), and the (vi) Potential for exposure to any of
Internet requirements specified in the constituents listed in appendix IV
§ 257.107(h). to this part as a result of an accident
[80 FR 21468, Apr. 17, 2015, as amended at 83 or failure of a container or handling
FR 36454, July 30, 2018] system; and
(vii) Other situations that may pose
§ 257.98 Implementation of the correc- threats to human health and the envi-
tive action program. ronment.
(a) Within 90 days of selecting a rem- (b) If an owner or operator of the
edy under § 257.97, the owner or oper- CCR unit, determines, at any time,
ator must initiate remedial activities. that compliance with the requirements
Based on the schedule established of § 257.97(b) is not being achieved
under § 257.97(d) for implementation through the remedy selected, the
and completion of remedial activities owner or operator must implement
the owner or operator must: other methods or techniques that could
(1) Establish and implement a correc- feasibly achieve compliance with the
tive action groundwater monitoring requirements.
program that: (c) Remedies selected pursuant to
(i) At a minimum, meets the require- § 257.97 shall be considered complete
ments of an assessment monitoring when:
program under § 257.95; (1) The owner or operator of the CCR
(ii) Documents the effectiveness of unit demonstrates compliance with the
the corrective action remedy; and groundwater protection standards es-
(iii) Demonstrates compliance with tablished under § 257.95(h) has been
the groundwater protection standard achieved at all points within the plume
pursuant to paragraph (c) of this sec- of contamination that lie beyond the
tion. groundwater monitoring well system
(2) Implement the corrective action established under § 257.91.
remedy selected under § 257.97; and (2) Compliance with the groundwater
(3) Take any interim measures nec- protection standards established under
essary to reduce the contaminants § 257.95(h) has been achieved by dem-
leaching from the CCR unit, and/or po- onstrating that concentrations of con-
tential exposures to human or ecologi- stituents listed in appendix IV to this
cal receptors. Interim measures must, part have not exceeded the ground-
to the greatest extent feasible, be con- water protection standard(s) for a pe-
sistent with the objectives of and con- riod of three consecutive years using
479
§ 257.100 40 CFR Ch. I (7–1–21 Edition)
the statistical procedures and perform- provisions. For the inactive CCR sur-
ance standards in § 257.93(f) and (g). face impoundment:
(3) All actions required to complete (i) The owner or operator must have
the remedy have been satisfied. prepared and placed in the facility’s
(d) All CCR that are managed pursu- operating record by December 17, 2015,
ant to a remedy required under § 257.97, a notification of intent to initiate clo-
or an interim measure required under sure of the inactive CCR surface im-
paragraph (a)(3) of this section, shall be poundment pursuant to § 257.105(i)(1);
managed in a manner that complies (ii) The owner or operator must have
with all applicable RCRA require- provided notification to the State Di-
ments. rector and/or appropriate Tribal au-
(e) Upon completion of the remedy, thority by January 19, 2016, of the in-
the owner or operator must prepare a tent to initiate closure of the inactive
notification stating that the remedy CCR surface impoundment pursuant to
has been completed. The owner or oper- § 257.106(i)(1); and
ator must obtain a certification from a (iii) The owner or operator must have
qualified professional engineer or ap- placed on its CCR Web site by January
proval from the Participating State Di- 19, 2016, the notification of intent to
rector or approval from EPA where initiate closure of the inactive CCR
EPA is the permitting authority at- surface impoundment pursuant to
testing that the remedy has been com- § 257.107(i)(1).
pleted in compliance with the require- (2) Location restrictions. (i) No later
ments of paragraph (c) of this section. than April 16, 2020, the owner or oper-
The report has been completed when it ator of the inactive CCR surface im-
is placed in the operating record as re- poundment must:
quired by § 257.105(h)(13). (A) Complete the demonstration for
(f) The owner or operator of the CCR placement above the uppermost aquifer
unit must comply with the record- as set forth by § 257.60(a), (b), and (c)(3);
keeping requirements specified in (B) Complete the demonstration for
§ 257.105(h), the notification require- wetlands as set forth by § 257.61(a), (b),
ments specified in § 257.106(h), and the and (c)(3);
internet requirements specified in (C) Complete the demonstration for
§ 257.107(h). fault areas as set forth by § 257.62(a),
[80 FR 21468, Apr. 17, 2015, as amended at 83 (b), and (c)(3);
FR 36454, July 30, 2018] (D) Complete the demonstration for
seismic impact zones as set forth by
CLOSURE AND POST-CLOSURE CARE § 257.63(a), (b), and (c)(3); and
(E) Complete the demonstration for
§ 257.100 Inactive CCR surface im- unstable areas as set forth by
poundments. § 257.64(a), (b), (c), and (d)(3).
(a) Inactive CCR surface impound- (ii) An owner or operator of an inac-
ments are subject to all of the require- tive CCR surface impoundment who
ments of this subpart applicable to ex- fails to demonstrate compliance with
isting CCR surface impoundments. the requirements of paragraph (e)(2)(i)
(b)–(d) [Reserved] of this section is subject to the closure
(e) Timeframes for certain inactive CCR requirements of § 257.101(b)(1).
surface impoundments. (1) An inactive (3) Design criteria. The owner or oper-
CCR surface impoundment for which ator of the inactive CCR surface im-
the owner or operator has completed poundment must:
the actions by the deadlines specified (i) No later than April 17, 2018, com-
in paragraphs (e)(1)(i) through (iii) of plete the documentation of liner type
this section is eligible for the alter- as set forth by § 257.71(a) and (b).
native timeframes specified in para- (ii) No later than June 16, 2017, place
graphs (e)(2) through (6) of this section. on or immediately adjacent to the CCR
The owner or operator of the CCR unit unit the permanent identification
must comply with the applicable rec- marker as set forth by § 257.73(a)(1).
ordkeeping, notification, and internet (iii) No later than October 16, 2018,
requirements associated with these prepare and maintain an Emergency
480
Action Plan as set forth by (1) Except as provided by paragraph

§ 257.73(a)(3). (a)(3) of this section, as soon as tech-
(iv) No later than April 17, 2018, com- nically feasible, but not later than
pile a history of construction as set April 11, 2021, an owner or operator of
forth by § 257.73(b) and (c). an existing unlined CCR surface im-
(v) No later than April 17, 2018, com- poundment must cease placing CCR
plete the initial hazard potential clas- and non-CCR wastestreams into such
sification, structural stability, and CCR surface impoundment and either
safety factor assessments as set forth retrofit or close the CCR unit in ac-
by § 257.73(a)(2), (b), (d), (e), and (f). cordance with the requirements of
(4) Operating criteria. The owner or § 257.102.
operator of the inactive CCR surface (2) An owner or operator of an exist-
impoundment must: ing unlined CCR surface impoundment
(i) No later than April 18, 2017, pre- that closes in accordance with para-
pare the initial CCR fugitive dust con- graph (a)(1) of this section must in-
trol plan as set forth in § 257.80(b). clude a statement in the notification
(ii) No later than April 17, 2018, pre- required under § 257.102(g) or (k)(5) that
pare the initial inflow design flood con- the CCR surface impoundment is clos-
trol system plan as set forth in ing or retrofitting under the require-
§ 257.82(c). ments of paragraph (a)(1) of this sec-
(iii) No later than April 18, 2017, inition.
tiate the inspections by a qualified per- (3) The timeframe specified in para-
son as set forth by § 257.83(a). graph (a)(1) of this section does not
(iv) No later than July 19, 2017, com- apply if the owner or operator complies
plete the initial annual inspection by a with the alternate liner demonstration
qualified professional engineer as set provisions specified in § 257.71(d) or the
forth by § 257.83(b). alternative closure procedures speci-
(5) Groundwater monitoring and correc- fied in § 257.103.
tive action. The owner or operator of (4) At any time after the initiation of
the inactive CCR surface impoundment closure under paragraph (a)(1) of this
must: section, the owner or operator may
(i) No later than April 17, 2019, com- cease closure activities and initiate a
ply with groundwater monitoring re- retrofit of the CCR unit in accordance
quirements set forth in §§ 257.90(b) and with the requirements of § 257.102(k).
257.94(b); and (b) The owner or operator of an exist-
ing CCR surface impoundment is sub-
(ii) No later than August 1, 2019, pre-
ject to the requirements of paragraph
pare the initial groundwater moni-
(b)(1) of this section.
toring and corrective action report as
(1)(i) Location standard under § 257.60.
set forth in § 257.90(e).
Except as provided by paragraph (b)(4)
(6) Closure and post-closure care. The
of this section, the owner or operator
owner or operator of the inactive CCR
of an existing CCR surface impound-
surface impoundment must:
ment that has not demonstrated com-
(i) No later than April 17, 2018, pre-
pliance with the location standard
pare an initial written closure plan as
specified in § 257.60(a) must cease plac-
set forth in § 257.102(b); and
ing CCR and non-CCR wastestreams
(ii) No later than April 17, 2018, pre- into such CCR unit as soon as tech-
pare an initial written post-closure nically feasible, but no later than April
care plan as set forth in § 257.104(d). 11, 2021, and close the CCR unit in ac-
[80 FR 21468, Apr. 17, 2015, as amended at 81 cordance with the requirements of
FR 51807, Aug. 5, 2016] § 257.102.
(ii) Location standards under §§ 257.61
§ 257.101 Closure or retrofit of CCR through 257.64. Except as provided by
units. paragraph (b)(4) of this section, within
(a) The owner or operator of an exist- six months of determining that an ex-
ing unlined CCR surface impoundment, isting CCR surface impoundment has
as determined under § 257.71(a), is sub- not demonstrated compliance with any

ject to the requirements of paragraph location standard specified in
(a)(1) of this section. §§ 257.61(a), 257.62(a), 257.63(a), and
481
§ 257.102 40 CFR Ch. I (7–1–21 Edition)
257.64(a), the owner or operator of the this section must include a statement
CCR surface impoundment must cease in the notification required under
placing CCR and non-CCR § 257.102(g) that the CCR surface im-
wastestreams into such CCR unit and poundment is closing under the re-
close the CCR unit in accordance with quirements of paragraph (c)(1) of this
the requirements of § 257.102. section.
(2) Within six months of either fail- (d) The owner or operator of an exist-
ing to complete the initial or any sub- ing CCR landfill is subject to the re-
sequent periodic safety factor assess- quirements of paragraph (d)(1) of this
ment required by § 257.73(e) by the section.
deadlines specified in § 257.73(f)(1) (1) Except as provided by paragraph
through (3) or failing to document that (d)(3) of this section, within six months
the calculated factors of safety for the of determining that an existing CCR
existing CCR surface impoundment landfill has not demonstrated compli-
achieve the minimum safety factors ance with the location restriction for
specified in § 257.73(e)(1)(i) through (iv), unstable areas specified in § 257.64(a),
the owner or operator of the CCR sur- the owner or operator of the CCR unit
face impoundment must cease placing must cease placing CCR and non-CCR
CCR and non-CCR wastestreams into waste streams into such CCR landfill
such CCR unit and close the CCR unit and close the CCR unit in accordance
in accordance with the requirements of with the requirements of § 257.102.
§ 257.102. (2) An owner or operator of an exist-
(3) An owner or operator of an existing CCR landfill that closes in accord-
ing CCR surface impoundment that ance with paragraph (d)(1) of this sec-
closes in accordance with paragraphs tion must include a statement in the
(b)(1) or (2) of this section must include notification required under § 257.102(g)
a statement in the notification re- that the CCR landfill is closing under
quired under § 257.102(g) that the CCR the requirements of paragraph (d)(1) of
surface impoundment is closing under this section.
the requirements of paragraphs (b)(1) (3) The timeframe specified in para-
or (2) of this section. graph (d)(1) of this section does not
(4) The timeframe specified in para- apply if the owner or operator complies
graph (b)(1) of this section does not with the alternative closure procedures
apply if the owner or operator complies specified in § 257.103.
with the alternative closure procedures [80 FR 21468, Apr. 17, 2015, as amended at 83
specified in § 257.103. FR 36454, July 30, 2018; 85 FR 53561, Aug. 28,
(c) The owner or operator of a new 2020; 85 FR 72542, Nov. 12, 2020]
CCR surface impoundment is subject to
the requirements of paragraph (c)(1) of § 257.102 Criteria for conducting the
this section. closure or retrofit of CCR units.
(1) Within six months of either fail- (a) Closure of a CCR landfill, CCR
ing to complete the initial or any subsurface impoundment, or any lateral
sequent periodic safety factor assess- expansion of a CCR unit must be com-
ment required by § 257.74(e) by the pleted either by leaving the CCR in
deadlines specified in § 257.74(f)(1) place and installing a final cover sys-
through (3) or failing to document that tem or through removal of the CCR and
the calculated factors of safety for the decontamination of the CCR unit, as
new CCR surface impoundment achieve described in paragraphs (b) through (j)
the minimum safety factors specified of this section. Retrofit of a CCR sur-
in § 257.74(e)(1)(i) through (v), the owner face impoundment must be completed
or operator of the CCR surface im- in accordance with the requirements in
poundment must cease placing CCR paragraph (k) of this section.
and non-CCR wastestreams into such (b) Written closure plan—(1) Content of
CCR unit and close the CCR unit in ac- the plan. The owner or operator of a
cordance with the requirements of CCR unit must prepare a written clo-
§ 257.102. sure plan that describes the steps nec-
(2) An owner or operator of an new essary to close the CCR unit at any
CCR surface impoundment that closes point during the active life of the CCR
in accordance with paragraph (c)(1) of unit consistent with recognized and
482
generally accepted good engineering would support any time extension

practices. The written closure plan sought under paragraph (f)(2) of this
must include, at a minimum, the infor- section.
mation specified in paragraphs (b)(1)(i) (2) Timeframes for preparing the initial
through (vi) of this section. written closure plan—(i) Existing CCR
(i) A narrative description of how the landfills and existing CCR surface im-
CCR unit will be closed in accordance poundments. No later than October 17,
with this section. 2016, the owner or operator of the CCR
(ii) If closure of the CCR unit will be unit must prepare an initial written
accomplished through removal of CCR closure plan consistent with the re-
from the CCR unit, a description of the quirements specified in paragraph
procedures to remove the CCR and de- (b)(1) of this section.
contaminate the CCR unit in accord- (ii) New CCR landfills and new CCR
ance with paragraph (c) of this section. surface impoundments, and any lateral
(iii) If closure of the CCR unit will be expansion of a CCR unit. No later than
accomplished by leaving CCR in place, the date of the initial receipt of CCR in
a description of the final cover system, the CCR unit, the owner or operator
designed in accordance with paragraph must prepare an initial written closure
(d) of this section, and the methods and plan consistent with the requirements
procedures to be used to install the specified in paragraph (b)(1) of this sec-
final cover. The closure plan must also tion.
discuss how the final cover system will
(iii) The owner or operator has com-
achieve the performance standards
pleted the written closure plan when
specified in paragraph (d) of this sec-
the plan, including the certification re-
tion.
quired by paragraph (b)(4) of this sec-
(iv) An estimate of the maximum in-
tion, has been placed in the facility’s
ventory of CCR ever on-site over the
operating record as required by
active life of the CCR unit.
§ 257.105(i)(4).
(v) An estimate of the largest area of
the CCR unit ever requiring a final (3) Amendment of a written closure
cover as required by paragraph (d) of plan. (i) The owner or operator may
this section at any time during the amend the initial or any subsequent
CCR unit’s active life. written closure plan developed pursu-
(vi) A schedule for completing all ac- ant to paragraph (b)(1) of this section
tivities necessary to satisfy the closure at any time.
criteria in this section, including an es- (ii) The owner or operator must
timate of the year in which all closure amend the written closure plan when-
activities for the CCR unit will be com- ever:
pleted. The schedule should provide (A) There is a change in the oper-
sufficient information to describe the ation of the CCR unit that would sub-
sequential steps that will be taken to stantially affect the written closure
close the CCR unit, including identi- plan in effect; or
fication of major milestones such as (B) Before or after closure activities
coordinating with and obtaining nec- have commenced, unanticipated events
essary approvals and permits from necessitate a revision of the written
other agencies, the dewatering and sta- closure plan.
bilization phases of CCR surface im- (iii) The owner or operator must
poundment closure, or installation of amend the closure plan at least 60 days
the final cover system, and the esti- prior to a planned change in the oper-
mated timeframes to complete each ation of the facility or CCR unit, or no
step or phase of CCR unit closure. later than 60 days after an unantici-
When preparing the written closure pated event requires the need to revise
plan, if the owner or operator of a CCR an existing written closure plan. If a
unit estimates that the time required written closure plan is revised after
to complete closure will exceed the closure activities have commenced for
timeframes specified in paragraph (f)(1) a CCR unit, the owner or operator must
of this section, the written closure plan amend the current closure plan no
must include the site-specific informa- later than 30 days following the trig-
tion, factors and considerations that gering event.
483
§ 257.102 40 CFR Ch. I (7–1–21 Edition)
(4) The owner or operator of the CCR (i) Free liquids must be eliminated
unit must obtain a written certifi- by removing liquid wastes or solidi-
cation from a qualified professional en- fying the remaining wastes and waste
gineer or approval from the Partici- residues.
pating State Director or approval from (ii) Remaining wastes must be sta-
EPA where EPA is the permitting au- bilized sufficient to support the final
thority that the initial and any amend- cover system.
ment of the written closure plan meets (3) Final cover system. If a CCR unit is
the requirements of this section. closed by leaving CCR in place, the
(c) Closure by removal of CCR. An owner or operator must install a final
owner or operator may elect to close a cover system that is designed to mini-
CCR unit by removing and decontami- mize infiltration and erosion, and at a
nating all areas affected by releases minimum, meets the requirements of
from the CCR unit. CCR removal and paragraph (d)(3)(i) of this section, or
decontamination of the CCR unit are the requirements of the alternative
complete when constituent concentra- final cover system specified in para-
tions throughout the CCR unit and any graph (d)(3)(ii) of this section.
areas affected by releases from the (i) The final cover system must be de-
CCR unit have been removed and signed and constructed to meet the cri-
groundwater monitoring concentra- teria in paragraphs (d)(3)(i)(A) through
tions do not exceed the groundwater (D) of this section. The design of the
protection standard established pursu- final cover system must be included in
ant to § 257.95(h) for constituents listed the written closure plan required by
in appendix IV to this part. paragraph (b) of this section.
(d) Closure performance standard when (A) The permeability of the final
leaving CCR in place—(1) The owner or cover system must be less than or
operator of a CCR unit must ensure equal to the permeability of any bot-
tom liner system or natural subsoils
that, at a minimum, the CCR unit is
present, or a permeability no greater
closed in a manner that will:
than 1 × 10¥5 cm/sec, whichever is less.
(i) Control, minimize or eliminate, to
(B) The infiltration of liquids
the maximum extent feasible, post-clo-
through the closed CCR unit must be
sure infiltration of liquids into the
minimized by the use of an infiltration
waste and releases of CCR, leachate, or
layer that contains a minimum of 18
contaminated run-off to the ground or
inches of earthen material.
surface waters or to the atmosphere;
(C) The erosion of the final cover sys-
(ii) Preclude the probability of future tem must be minimized by the use of
impoundment of water, sediment, or an erosion layer that contains a min-
slurry; imum of six inches of earthen material
(iii) Include measures that provide that is capable of sustaining native
for major slope stability to prevent the plant growth.
sloughing or movement of the final (D) The disruption of the integrity of
cover system during the closure and the final cover system must be mini-
post-closure care period; mized through a design that accommo-
(iv) Minimize the need for further dates settling and subsidence.
maintenance of the CCR unit; and (ii) The owner or operator may select
(v) Be completed in the shortest an alternative final cover system de-
amount of time consistent with recog- sign, provided the alternative final
nized and generally accepted good engi- cover system is designed and con-
neering practices. structed to meet the criteria in para-
(2) Drainage and stabilization of CCR graphs (d)(3)(ii)(A) through (C) of this
surface impoundments. The owner or op- section. The design of the final cover
erator of a CCR surface impoundment system must be included in the written
or any lateral expansion of a CCR sur- closure plan required by paragraph (b)
face impoundment must meet the re- of this section.
quirements of paragraphs (d)(2)(i) and (A) The design of the final cover sys-
(ii) of this section prior to installing tem must include an infiltration layer
the final cover system required under that achieves an equivalent reduction
paragraph (d)(3) of this section. in infiltration as the infiltration layer
484
specified in paragraphs (d)(3)(i)(A) and The documentation must be supported

(B) of this section. by, at a minimum, the information
(B) The design of the final cover sys- specified in paragraphs (e)(2)(ii)(A) and
tem must include an erosion layer that (B) of this section. The owner or oper-
provides equivalent protection from ator may obtain two-year extensions
wind or water erosion as the erosion provided the owner or operator con-
layer specified in paragraph (d)(3)(i)(C) tinues to be able to demonstrate that
of this section. there is reasonable likelihood that the
(C) The disruption of the integrity of CCR unit will accept wastes in the
the final cover system must be mini- foreseeable future or will remove CCR
mized through a design that accommo- from the unit for the purpose of bene-
dates settling and subsidence. ficial use. The owner or operator must
(iii) The owner or operator of the place each completed demonstration, if
CCR unit must obtain a written certifi- more than one time extension is
cation from a qualified professional en-
sought, in the facility’s operating
gineer or approval from the Partici-
record as required by § 257.105(i)(5) prior
pating State Director or approval from
to the end of any two-year period.
EPA where EPA is the permitting au-
thority that the design of the final (A) Information documenting that
cover system meets the requirements the CCR unit has remaining storage or
of this section. disposal capacity or that the CCR unit
(e) Initiation of closure activities. Ex- can have CCR removed for the purpose
cept as provided for in paragraph (e)(4) of beneficial use; and
of this section and § 257.103, the owner (B) Information demonstrating that
or operator of a CCR unit must com- that there is a reasonable likelihood
mence closure of the CCR unit no later that the CCR unit will resume receiv-
than the applicable timeframes speci- ing CCR or non-CCR waste streams in
fied in either paragraph (e)(1) or (2) of the foreseeable future or that CCR can
this section. be removed for the purpose of bene-
(1) The owner or operator must com- ficial use. The narrative must include a
mence closure of the CCR unit no later best estimate as to when the CCR unit
than 30 days after the date on which will resume receiving CCR or non-CCR
the CCR unit either: waste streams. The situations listed in
(i) Receives the known final receipt paragraphs (e)(2)(ii)(B)(1) through (4) of
of waste, either CCR or any non-CCR this section are examples of situations
waste stream; or that would support a determination
(ii) Removes the known final volume that the CCR unit will resume receiv-
of CCR from the CCR unit for the pur- ing CCR or non-CCR waste streams in
pose of beneficial use of CCR. the foreseeable future.
(2)(i) Except as provided by para- (1) Normal plant operations include
graph (e)(2)(ii) of this section, the
periods during which the CCR unit does
owner or operator must commence clo-
not receive CCR or non-CCR waste
sure of a CCR unit that has not re-
streams, such as the alternating use of
ceived CCR or any non-CCR waste
stream or is no longer removing CCR two or more CCR units whereby at any
for the purpose of beneficial use within point in time one CCR unit is receiving
two years of the last receipt of waste CCR while CCR is being removed from
or within two years of the last removal a second CCR unit after its dewatering.
of CCR material for the purpose of ben- (2) The CCR unit is dedicated to a
eficial use. coal-fired boiler unit that is tempo-
(ii) Notwithstanding paragraph rarily idled (e.g., CCR is not being gen-
(e)(2)(i) of this section, the owner or operated) and there is a reasonable likeli-
erator of the CCR unit may secure an hood that the coal-fired boiler will re-
additional two years to initiate closure sume operations in the future.
of the idle unit provided the owner or (3) The CCR unit is dedicated to an
operator provides written documenta- operating coal-fired boiler (i.e., CCR is
tion that the CCR unit will continue to being generated); however, no CCR are
accept wastes or will start removing being placed in the CCR unit because
CCR for the purpose of beneficial use. the CCR are being entirely diverted to
485
§ 257.102 40 CFR Ch. I (7–1–21 Edition)
beneficial uses, but there is a reason- (iii) An owner or operator of an exist-

able likelihood that the CCR unit will ing CCR surface impoundment closing
again be used in the foreseeable future. the CCR unit as required by § 257.101(b);
(4) The CCR unit currently receives (iv) An owner or operator of a new
only non-CCR waste streams and those CCR surface impoundment closing the
non-CCR waste streams are not gen- CCR unit as required by § 257.101(c); or
erated for an extended period of time, (v) An owner or operator of an exist-
but there is a reasonable likelihood ing CCR landfill closing the CCR unit
that the CCR unit will again receive as required by § 257.101(d).
non-CCR waste streams in the future. (f) Completion of closure activities. (1)
(iii) In order to obtain additional Except as provided for in paragraph
time extension(s) to initiate closure of (f)(2) of this section, the owner or oper-
a CCR unit beyond the two years pro- ator must complete closure of the CCR
vided by paragraph (e)(2)(i) of this sec- unit:
tion, the owner or operator of the CCR (i) For existing and new CCR landfills
unit must include with the demonstra- and any lateral expansion of a CCR
tion required by paragraph (e)(2)(ii) of landfill, within six months of com-
this section the following statement mencing closure activities.
signed by the owner or operator or an (ii) For existing and new CCR surface
authorized representative: impoundments and any lateral expan-
sion of a CCR surface impoundment,
I certify under penalty of law that I have within five years of commencing clo-
personally examined and am familiar with sure activities.
the information submitted in this dem- (2)(i) Extensions of closure timeframes.
onstration and all attached documents, and
The timeframes for completing closure
that, based on my inquiry of those individ-
uals immediately responsible for obtaining
of a CCR unit specified under para-
the information, I believe that the submitted graphs (f)(1) of this section may be ex-
information is true, accurate, and complete. tended if the owner or operator can
I am aware that there are significant pen- demonstrate that it was not feasible to
alties for submitting false information, incomplete closure of the CCR unit with-
cluding the possibility of fine and imprison- in the required timeframes due to fac-
ment. tors beyond the facility’s control. If
(3) For purposes of this subpart, clo- the owner or operator is seeking a time
sure of the CCR unit has commenced if extension beyond the time specified in
the owner or operator has ceased plac- the written closure plan as required by
ing waste and completes any of the fol- paragraph (b)(1) of this section, the
lowing actions or activities: demonstration must include a nar-
rative discussion providing the basis
(i) Taken any steps necessary to im-
for additional time beyond that speci-
plement the written closure plan re-
fied in the closure plan. The owner or
quired by paragraph (b) of this section;
operator must place each completed
(ii) Submitted a completed applica- demonstration, if more than one time
tion for any required state or agency extension is sought, in the facility’s
permit or permit modification; or operating record as required by
(iii) Taken any steps necessary to § 257.105(i)(6) prior to the end of any
comply with any state or other agency two-year period. Factors that may sup-
standards that are a prerequisite, or port such a demonstration include:
are otherwise applicable, to initiating (A) Complications stemming from
or completing the closure of a CCR the climate and weather, such as un-
unit. usual amounts of precipitation or a sig-
(4) The timeframes specified in para- nificantly shortened construction sea-
graphs (e)(1) and (2) of this section do son;
not apply to any of the following own- (B) Time required to dewater a sur-
ers or operators: face impoundment due to the volume
(i) [Reserved] of CCR contained in the CCR unit or
(ii) An owner or operator of an exist- the characteristics of the CCR in the
ing unlined CCR surface impoundment unit;

closing the CCR unit as required by (C) The geology and terrain sur-
§ 257.101(a); rounding the CCR unit will affect the
486
amount of material needed to close the mitting authority verifying that clo-
CCR unit; or sure has been completed in accordance
(D) Time required or delays caused with the closure plan specified in para-
by the need to coordinate with and ob- graph (b) of this section and the re-
tain necessary approvals and permits quirements of this section.
from a state or other agency. (g) No later than the date the owner
(ii) Maximum time extensions. (A) CCR or operator initiates closure of a CCR
surface impoundments of 40 acres or unit, the owner or operator must pre-
smaller may extend the time to compare a notification of intent to close a
plete closure by no longer than two CCR unit. The notification must in-
years. clude the certification by a qualified
(B) CCR surface impoundments larger professional engineer or the approval
than 40 acres may extend the time- from the Participating State Director
frame to complete closure of the CCR or the approval from EPA where EPA
unit multiple times, in two-year incre- is the permitting authority for the de-
ments. For each two-year extension sign of the final cover system as re-
sought, the owner or operator must quired by § 257.102(d)(3)(iii), if applica-
substantiate the factual circumstances ble. The owner or operator has com-
demonstrating the need for the exten- pleted the notification when it has
sion. No more than a total of five two- been placed in the facility’s operating
year extensions may be obtained for record as required by § 257.105(i)(7).
any CCR surface impoundment. (h) Within 30 days of completion of
(C) CCR landfills may extend the closure of the CCR unit, the owner or
timeframe to complete closure of the operator must prepare a notification of
CCR unit multiple times, in one-year closure of a CCR unit. The notification
increments. For each one-year exten- must include the certification by a
sion sought, the owner or operator qualified professional engineer or the
must substantiate the factual cir- approval from the Participating State
cumstances demonstrating the need for Director or the approval from EPA
the extension. No more than a total of where EPA is the permitting authority
two one-year extensions may be ob- as required by § 257.102(f)(3). The owner
tained for any CCR landfill. or operator has completed the notifica-
(iii) In order to obtain additional tion when it has been placed in the fa-
time extension(s) to complete closure cility’s operating record as required by
of a CCR unit beyond the times pro- § 257.105(i)(8).
vided by paragraph (f)(1) of this sec- (i) Deed notations. (1) Except as pro-
tion, the owner or operator of the CCR
vided by paragraph (i)(4) of this sec-
unit must include with the demonstra-
tion, following closure of a CCR unit,
tion required by paragraph (f)(2)(i) of
the owner or operator must record a
this section the following statement
notation on the deed to the property,
signed by the owner or operator or an
or some other instrument that is nor-
authorized representative:
mally examined during title search.
I certify under penalty of law that I have (2) The notation on the deed must in
personally examined and am familiar with perpetuity notify any potential pur-
the information submitted in this dem- chaser of the property that:
onstration and all attached documents, and
that, based on my inquiry of those individ-
(i) The land has been used as a CCR
uals immediately responsible for obtaining unit; and
the information, I believe that the submitted (ii) Its use is restricted under the
information is true, accurate, and complete. post-closure care requirements as pro-
I am aware that there are significant pen- vided by § 257.104(d)(1)(iii).
alties for submitting false information, in- (3) Within 30 days of recording a no-
cluding the possibility of fine and imprison- tation on the deed to the property, the
ment.
owner or operator must prepare a noti-
(3) Upon completion, the owner or op- fication stating that the notation has
erator of the CCR unit must obtain a been recorded. The owner or operator
certification from a qualified profes- has completed the notification when it
sional engineer or approval from the has been placed in the facility’s oper-
Participating State Director or ap- ating record as required by
proval from EPA where EPA is the per- § 257.105(i)(9).
487
§ 257.102 40 CFR Ch. I (7–1–21 Edition)
(4) An owner or operator that closes a plan consistent with the requirements
CCR unit in accordance with paragraph specified in paragraph (k)(2) of this sec-
(c) of this section is not subject to the tion. For purposes of this subpart, ini-
requirements of paragraphs (i)(1) tiation of retrofit activities has com-
through (3) of this section. menced if the owner or operator has
(j) The owner or operator of the CCR ceased placing waste in the unit and
unit must comply with the closure rec- completes any of the following actions
ordkeeping requirements specified in or activities:
§ 257.105(i), the closure notification re- (1) Taken any steps necessary to im-
quirements specified in § 257.106(i), and plement the written retrofit plan;
the closure Internet requirements spec- (2) Submitted a completed applica-
ified in § 257.107(i). tion for any required state or agency
(k) Criteria to retrofit an existing CCR permit or permit modification; or
surface impoundment. (1) To retrofit an (3) Taken any steps necessary to
existing CCR surface impoundment, comply with any state or other agency
the owner or operator must: standards that are a prerequisite, or
(i) First remove all CCR, including are otherwise applicable, to initiating
any contaminated soils and sediments or completing the retrofit of a CCR
from the CCR unit; and unit.
(ii) Comply with the requirements in (B) The owner or operator has com-
§ 257.72. pleted the written retrofit plan when
(iii) A CCR surface impoundment un- the plan, including the certification re-
dergoing a retrofit remains subject to quired by paragraph (k)(2)(iv) of this
all other requirements of this subpart, section, has been placed in the facili-
including the requirement to conduct ty’s operating record as required by
any necessary corrective action. § 257.105(j)(1).
(2) Written retrofit plan—(i) Content of (iii) Amendment of a written retrofit
the plan. The owner or operator must plan. (A) The owner or operator may
prepare a written retrofit plan that de- amend the initial or any subsequent
scribes the steps necessary to retrofit written retrofit plan at any time.
the CCR unit consistent with recog- (B) The owner or operator must
nized and generally accepted good engi- amend the written retrofit plan when-
neering practices. The written retrofit ever:
plan must include, at a minimum, all (1) There is a change in the operation
of the following information: of the CCR unit that would substan-
(A) A narrative description of the tially affect the written retrofit plan in
specific measures that will be taken to effect; or
retrofit the CCR unit in accordance (2) Before or after retrofit activities
with this section. have commenced, unanticipated events
(B) A description of the procedures to necessitate a revision of the written
remove all CCR and contaminated soils retrofit plan.
and sediments from the CCR unit. (C) The owner or operator must
(C) An estimate of the maximum amend the retrofit plan at least 60 days
amount of CCR that will be removed as prior to a planned change in the oper-
part of the retrofit operation. ation of the facility or CCR unit, or no
(D) An estimate of the largest area of later than 60 days after an unantici-
the CCR unit that will be affected by pated event requires the revision of an
the retrofit operation. existing written retrofit plan. If a writ-
(E) A schedule for completing all ac- ten retrofit plan is revised after ret-
tivities necessary to satisfy the retrofit activities have commenced for a
rofit criteria in this section, including CCR unit, the owner or operator must
an estimate of the year in which ret- amend the current retrofit plan no
rofit activities of the CCR unit will be later than 30 days following the trig-
completed. gering event.
(ii) Timeframes for preparing the initial (iv) The owner or operator of the CCR
written retrofit plan. (A) No later than unit must obtain a written certifi-
60 days prior to date of initiating ret- cation from a qualified professional en-
rofit activities, the owner or operator gineer or an approval from the Partici-
must prepare an initial written retrofit pating State Director or an approval
488
from EPA where EPA is the permitting quirements specified in § 257.106(j), and
authority that the activities outlined the retrofit Internet requirements
in the written retrofit plan, including specified in § 257.107(j).
any amendment of the plan, meet the
requirements of this section. [80 FR 21468, Apr. 17, 2015, as amended at 81
FR 51808, Aug. 5, 2016; 83 FR 36455, July 30,
(3) Deadline for completion of activities
2018; 85 FR 72542, Nov. 12, 2020]
related to the retrofit of a CCR unit. Any
CCR surface impoundment that is § 257.103 Alternative closure require-
being retrofitted must complete all ments.
retrofit activities within the same
time frames and procedures specified The owner or operator of a CCR land-
for the closure of a CCR surface im- fill, CCR surface impoundment, or any
poundment in § 257.102(f) or, where ap- lateral expansion of a CCR unit that is
plicable, § 257.103. subject to closure pursuant to
(4) Upon completion, the owner or op- § 257.101(a), (b)(1), or (d) may neverthe-
erator must obtain a written certifi- less continue to receive the wastes
cation from a qualified professional en- specified in either paragraph (a), (b),
gineer or an approval from the Partici- (f)(1), or (f)(2) of this section in the unit
pating State Director or an approval provided the owner or operator meets
from EPA where EPA is the permitting all of the requirements contained in
authority verifying that the retrofit the respective paragraph.
activities have been completed in ac- (a) CCR landfills—(1) No alternative
cordance with the retrofit plan speci- CCR disposal capacity. Notwithstanding
fied in paragraph (k)(2) of this section the provisions of § 257.101(d), a CCR
and the requirements of this section. landfill may continue to recieve CCR if
(5) No later than the date the owner the owner or operator of the CCR land-
or operator initiates the retrofit of a
fill certifies that the CCR must con-
CCR unit, the owner or operator must
tinue to be managed in that CCR land-
prepare a notification of intent to ret-
rofit a CCR unit. The owner or oper- fill due to the absence of alternative
ator has completed the notification disposal capacity both on and off-site
when it has been placed in the facili- of the facility. To qualify under this
ty’s operating record as required by paragraph, the owner or operator of the
§ 257.105(j)(5). CCR landfill must document that all of
(6) Within 30 days of completing the the following conditions have been
retrofit activities specified in para- met:
graph (k)(1) of this section, the owner (i) No alternative disposal capacity is
or operator must prepare a notification available on or off-site. An increase in
of completion of retrofit activities. The costs or the inconvenience of existing
notification must include the certifi- capacity is not sufficient to support
cation from a qualified professional en- qualification under this section;
gineer or an approval from the Partici- (ii) The owner or operator has made,
pating State Director or an approval and continues to make, efforts to ob-
from EPA where EPA is the permitting tain additional capacity. Qualification
authority has is required by paragraph under this paragraph (a) lasts only as
(k)(4) of this section. The owner or op- long as no alternative capacity is
erator has completed the notification available. Once alternative capacity is
when it has been placed in the facili- identified, the owner or operator must
ty’s operating record as required by
arrange to use such capacity as soon as
§ 257.105(j)(6).
feasible;
(7) At any time after the initiation of
a CCR unit retrofit, the owner or oper- (iii) The owner or operator must re-
ator may cease the retrofit and initiate main in compliance with all other re-
closure of the CCR unit in accordance quirements of this subpart, including
with the requirements of § 257.102. the requirement to conduct any nec-
(8) The owner or operator of the CCR essary corrective action; and
unit must comply with the retrofit rec- (iv) The owner or operator must pre-
ordkeeping requirements specified in pare the annual progress report speci-
§ 257.105(j), the retrofit notification re- fied in paragraph (c) of this section
489
§ 257.103 40 CFR Ch. I (7–1–21 Edition)
documenting the continued lack of al- and progress reports specified in para-
ternative capacity and the progress to- graphs (c)(1) through (3) of this section.
wards the development of alternative (1) Within six months of becoming
CCR disposal capacity. subject to closure pursuant to
(2) Once alternative capacity is avail- § 257.101(d), the owner or operator must
able, the CCR landfill must cease re- prepare and place in the facility’s oper-
ceiving CCR and initiate closure fol- ating record a notification of intent to
lowing the timeframes in § 257.102(e). comply with the alternative closure re-
(3) If no alternative capacity is iden- quirements of this section. The notifi-
tified within five years after the initial cation must describe why the CCR
certification, the CCR landfill must landfill qualifies for the alternative
cease receiving CCR and close in ac- closure provisions under either para-
cordance with the timeframes in graph (a) or (b) of this section, in addi-
§ 257.102(e) and (f). tion to providing the documentation
(b) CCR landfills—(1) Permanent ces- and certifications required by para-
sation of a coal-fired boiler(s) by a date graph (a) or (b) of this section.
certain. Notwithstanding the provisions (2) The owner or operator must pre-
of § 257.101(d), a CCR landfill may con- pare the periodic progress reports re-
tinue to receive CCR if the owner or quired by paragraph (a)(1)(iv) or
operator certifies that the facility will (b)(1)(iii) of this section, in addition to
cease operation of the coal-fired boilers describing any problems encountered
within the timeframe specified in para- and a description of the actions taken
graph (b)(4) of this section, but in the to resolve the problems. The annual
interim period (prior to closure of the progress reports must be completed ac-
coal-fired boiler), the facility must cording to the following schedule:
continue to use the CCR landfill due to (i) The first annual progress report
the absence of alternative disposal ca- must be prepared no later than 13
pacity both on and off-site of the facil- months after completing the notifica-
ity. To qualify under this paragraph, tion of intent to comply with the alter-
the owner or operator of the CCR land- native closure requirements required
fill must document that all of the fol- by paragraph (c)(1) of this section.
lowing conditions have been met: (ii) The second annual progress re-
(i) No alternative disposal capacity is port must be prepared no later than 12
available on or off-site. An increase in months after completing the first an-
costs or the inconvenience of existing nual progress report. Subsequent an-
capacity is not sufficient to support nual progress reports must be prepared
qualification under this section. within 12 months of completing the
(ii) The owner or operator must re- previous annual progress report.
main in compliance with all other re- (iii) The owner or operator has com-
quirements of this subpart, including pleted the progress reports specified in
the requirement to conduct any nec- this paragraph (c)(2) when the reports
essary corrective action; and are placed in the facility’s operating
(iii) The owner or operator must pre- record as required by § 257.105(i)(11).
pare the annual progress report speci- (3) An owner or operator of a CCR
fied in paragraph (c) of this section landfill must also prepare the notifica-
documenting the continued lack of al- tion of intent to close a CCR landfill as
ternative capacity and the progress to- required by § 257.102(g).
wards the closure of the coal-fired boil- (d) CCR landfill recordkeeping. The
er. owner or operator of the CCR landfill
(2)–(3) [Reserved] must comply with the recordkeeping
(4) For a CCR landfill, the coal-fired requirements specified in § 257.105(i),
boiler must cease operation, and the the notification requirements specified
CCR landfill must complete closure no in § 257.106(i), and the internet require-
later than April 19, 2021. ments specified in § 257.107(i).
(c) Required notices and progress re- (e) [Reserved]
ports for CCR landfills. An owner or op- (f) Site-specific alternative deadlines to
erator of a CCR landfill that closes in initiate closure of CCR surface impound-
accordance with paragraph (a) or (b) of ments. Notwithstanding the provisions
this section must complete the notices of § 257.101(a) and (b)(1), a CCR surface
490
impoundment may continue to receive umentation that the criteria in para-

the waste specified in paragraph (f)(1) graphs (f)(1)(i) through (iii) of this sec-
or (2) of this section, provided the tion have been met by submitting to
owner or operator submits a dem- the Administrator or the Participating
onstration that the criteria in either State Director all of the following:
paragraph (f)(1) or (2) of this section (A) To demonstrate that the criteria
have been met. The demonstration in paragraphs (f)(1)(i) and (ii) of this
must be submitted to the Adminis- section have been met the owner or op-
trator or the Participating State Di- erator must submit a workplan that
rector no later than the relevant dead- contains all of the following elements:
line in paragraph (f)(3) of this section.
(1) A written narrative discussing the
The Administrator or the Participating
State Director will act on the submis- options considered both on and off-site
sion in accordance with the procedures to obtain alternative capacity for each
in paragraph (f)(3) of this section. CCR and/or non-CCR wastestreams, the
(1) Development of alternative capacity technical infeasibility of obtaining al-
is technically infeasible. Notwith- ternative capacity prior to April 11,
standing the provisions of § 257.101(a) 2021, and the option selected and jus-
and (b)(1), a CCR surface impoundment tification for the alternative capacity
may continue to receive the waste selected. The narrative must also in-
specified in paragraph (f)(1)(ii)(A) or clude all of the following:
(B) of this section, provided the owner (i) An in-depth analysis of the site
or operator demonstrates the and any site-specific conditions that
wastestream(s) must continue to be led to the decision to select the alter-
managed in that CCR surface impound- native capacity being developed;
ment because it was technically infea- (ii) An analysis of the adverse impact
sible to complete the measures nec- to plant operations if the CCR surface
essary to provide alternative disposal impoundment in question were to no
capacity on or off-site of the facility by longer be available for use; and
April 11, 2021. To obtain approval under
(iii) A detailed explanation and jus-
this paragraph all of the following cri-
tification for the amount of time being
teria must be met:
(i) No alternative disposal capacity is requested and how it is the fastest
available on or off-site. An increase in technically feasible time to complete
costs or the inconvenience of existing the development of the alternative ca-
capacity is not sufficient to support pacity;
qualification under this section; (2) A detailed schedule of the fastest
(ii)(A) For units closing pursuant to technically feasible time to complete
§ 257.101(a) and (b)(1)(i), CCR and/or the measures necessary for alternative
non-CCR wastestreams must continue capacity to be available including a
to be managed in that CCR surface im- visual timeline representation. The
poundment because it was technically visual timeline must clearly show all
infeasible to complete the measures of the following:
necessary to obtain alternative dis- (i) How each phase and the steps
posal capacity either on or off-site of within that phase interact with or are
the facility by April 11, 2021. dependent on each other and the other
(B) For units closing pursuant to phases;
§ 257.101(b)(1)(ii), CCR must continue to (ii) All of the steps and phases that
be managed in that CCR surface im- can be completed concurrently;
poundment because it was technically
(iii) The total time needed to obtain
infeasible to complete the measures
the alternative capacity and how long
necessary to obtain alternative dis-
posal capacity either on or off-site of each phase and step within each phase
the facility by April 11, 2021. will take; and
(iii) The facility is in compliance (iv) At a minimum, the following
with all of the requirements of this phases: Engineering and design, con-
subpart. tractor selection, equipment fabrica-

(iv) The owner or operator of the CCR tion and delivery, construction, and
surface impoundment must submit doc- start up and implementation.;
491
§ 257.103 40 CFR Ch. I (7–1–21 Edition)
(3) A narrative discussion of the (5) Any corrective measures assess-

schedule and visual timeline represen- ment conducted as required at § 257.96;
tation, which must discuss all of the (6) Any progress reports on corrective
following: action remedy selection and design and
(i) Why the length of time for each the report of final remedy selection re-
phase and step is needed and a discus- quired at § 257.97(a);
sion of the tasks that occur during the (7) The most recent structural sta-
specific step; bility assessment required at § 257.73(d);
(ii) Why each phase and step shown and
on the chart must happen in the order (8) The most recent safety factor as-
it is occurring; sessment required at § 257.73(e).
(iii) The tasks that occur during each (v) As soon as alternative capacity
of the steps within the phase; and for any CCR or non-CCR wastestream
(iv) Anticipated worker schedules; is available, the CCR surface impound-
and ment must cease receiving that CCR or
(4) A narrative discussion of the non-CCR wastestream. Once the CCR
progress the owner or operator has surface impoundment ceases receipt of
made to obtain alternative capacity for all CCR and/or non-CCR wastestreams,
the CCR and/or non-CCR wastestreams. the CCR surface impoundment must
The narrative must discuss all the initiate closure following the time-
steps taken, starting from when the frames in § 257.102(e) and (f).
owner or operator initiated the design (vi) Maximum time frames. All CCR
phase up to the steps occurring when surface impoundments covered by para-
the demonstration is being compiled. It graph (f)(1) must cease receiving waste
must discuss where the facility cur- by the deadlines specified in para-
rently is on the timeline and the ef- graphs (f)(1)(vi)(A) and (B) of this sec-
forts that are currently being under- tion and close in accordance with the
taken to develop alternative capacity. timeframes in § 257.102(e) and (f).
(B) To demonstrate that the criteria (A) Except as provided by paragraph
in paragraph (f)(1)(iii) of this section (f)(1)(vi)(B) of this section, no later
have been met, the owner or operator than October 15, 2023.
must submit all of the following: (B) An eligible unlined CCR surface
(1) A certification signed by the impoundment must cease receiving
owner or operator that the facility is CCR and/or non-CCR wastestreams no
in compliance with all of the require- later than October 15, 2024. In order to
ments of this subpart; continue to operate until October 15,
(2) Visual representation of 2024, the owner or operator must dem-
hydrogeologic information at and onstrate that the unit meets the defini-
around the CCR unit(s) that supports tion of an eligible unlined CCR surface
the design, construction and installa- impoundment.
tion of the groundwater monitoring (vii) An owner or operator may seek
system. This includes all of the fol- additional time beyond the time grant-
lowing: ed in the initial approval by making
(i) Map(s) of groundwater monitoring the showing in paragraphs (f)(1)(i)
well locations in relation to the CCR through (iv) of this section, provided
unit(s); that no facility may be granted time to
(ii) Well construction diagrams and operate the impoundment beyond the
drilling logs for all groundwater moni- maximum allowable time frames pro-
toring wells; and vided in § 257.103(f)(1)(vi).
(iii) Maps that characterize the direc- (viii) The owner or operator at all
tion of groundwater flow accounting times bears responsibility for dem-
for seasonal variations; onstrating qualification under this sec-
(3) Constituent concentrations, sum- tion. Failure to remain in compliance
marized in table form, at each ground- with any of the requirements of this
water monitoring well monitored dur- subpart will result in the automatic
ing each sampling event; loss of authorization under this sec-

(4) A description of site hydrogeology tion.
including stratigraphic cross-sections; (ix) The owner or operator must:
492
(A) Upon submission of the dem- ration of the alternative cease receipt
onstration to the Administrator or the of waste deadline.
Participating State Director, prepare (B) The first semi-annual progress re-
and place in the facility’s operating port must be prepared by whichever
record a notification that it has sub- date, April 30 or October 31, is soonest
mitted the demonstration, along with a after receiving approval from the Ad-
copy of the demonstration. An owner ministrator or the Participating State
or operator that claims CBI in the Director; and
demonstration may post a redacted (C) The owner or operator has com-
version of the demonstration to its pleted the progress reports specified in
publicly accessible CCR internet site paragraph (f)(1)(x) of this section when
provided that it contains sufficient de-
the reports have been placed in the fa-
tail so that the public can meaning-
cility’s operating record as required by
fully comment on the demonstration.
§ 257.105(i)(17).
(B) Upon receipt of a decision pursu-
ant to paragraph (f)(3) of this section, (xii) The owner or operator must pre-
must prepare and place in the facility’s pare the notification of intent to close
operating record a copy of the decision. a CCR surface impoundment as re-
(C) If an extension of an approved quired by § 257.102(g).
deadline pursuant to paragraph (xiii) The owner or operator must
(f)(1)(vii) of this section has been re- comply with the recordkeeping re-
quested, place a copy of the request quirements specified in § 257.105(i), the
submitted to the Administrator or the notification requirements specified in
Participating State Director in the fa- § 257.106(i), and the internet posting re-
cility’s operating record. quirements in § 257.107(i).
(x) The owner or operator must pre- (2) Permanent cessation of a coal-fired
pare semi-annual progress reports. The boiler(s) by a date certain. Notwith-
semi-annual progress reports must con- standing the provisions of § 257.101(a),
tain all of the following elements: and (b)(1), a CCR surface impoundment
(A) Discussion of the progress made may continue to receive CCR and/or
to date in obtaining alternative capac- non-CCR wastestreams if the facility
ity, including: will cease operation of the coal-fired
(1) Discussion of the current stage of boiler(s) and complete closure of the
obtaining the capacity in reference to impoundment within the timeframes
the timeline required under paragraph specified in paragraph (f)(2)(iv) of this
(f)(1)(iv)(A) of this section; section, but in the interim period
(2) Discussion of whether the owner (prior to closure of the coal-fired boil-
or operator is on schedule for obtaining er), the facility must continue to use
alternative capacity; the CCR surface impoundment due to
(3) If the owner or operator is not on the absence of alternative disposal ca-
or ahead of schedule for obtaining al- pacity both on and off-site of the facil-
ternative capacity, the following must ity. To qualify under this paragraph all
be included:
of the following criteria must be met:
(i) Discussion of any problems en-
(i) No alternative disposal capacity is
countered, and a description of the ac-
tions taken or planned to resolve the available on or off-site. An increase in
problems and get back on schedule; and costs or the inconvenience of existing
(ii) Discussion of the goals for the capacity is not sufficient to support
next six months and major milestones qualification under this section.
to be achieved for obtaining alter- (ii) Potential risks to human health
native capacity; and and the environment from the contin-
(B) Discussion of any planned oper- ued operation of the CCR surface im-
ational changes at the facility. poundment have been adequately miti-
(xi) The progress reports must be gated;
completed according to the following (iii) The facility is in compliance
schedule: with all other requirements of this sub-
(A) The semi-annual progress reports part, including the requirement to con-
must be prepared no later than April 30 duct any necessary corrective action;
and October 31 of each year for the du- and
493
§ 257.103 40 CFR Ch. I (7–1–21 Edition)
(iv) The coal-fired boilers must cease have been met, the owner or operator
operation and closure of the impound- must submit all of the following:
ment must be completed within the (1) A certification signed by the
following timeframes: owner or operator that the facility is
(A) For a CCR surface impoundment in compliance with all of the require-
that is 40 acres or smaller, the coal- ments of this subpart;
fired boiler(s) must cease operation and (2) Visual representation of
the CCR surface impoundment must hydrogeologic information at and
complete closure no later than October around the CCR unit(s) that supports
17, 2023. the design, construction and installa-
(B) For a CCR surface impoundment tion of the groundwater monitoring
that is larger than 40 acres, the coal- system. This includes all of the fol-
fired boiler(s) must cease operation, lowing:
and the CCR surface impoundment (i) Map(s) of groundwater monitoring
must complete closure no later than well locations in relation to the CCR
October 17, 2028. unit;
(v) The owner or operator of the CCR (ii) Well construction diagrams and
surface impoundment must submit the drilling logs for all groundwater moni-
following documentation that the cri- toring wells; and
teria in paragraphs (f)(2)(i) through (iv) (iii) Maps that characterize the direc-
of this section have been met as speci- tion of groundwater flow accounting
fied in paragraphs (f)(2)(v)(A) through for seasonal variations;
(D) of this section. (3) Constituent concentrations, sum-
(A) To demonstrate that the criteria marized in table form, at each ground-
in paragraph (f)(2)(i) of this section water monitoring well monitored dur-
have been met the owner or operator ing each sampling event;
must submit a narrative that explains (4) Description of site hydrogeology
the options considered to obtain alter- including stratigraphic cross-sections;
native capacity for CCR and/or non- (5) Any corrective measures assess-
CCR wastestreams both on and off-site. ment required at § 257.96;
(B) To demonstrate that the criteria (6) Any progress reports on remedy
in paragraph (f)(2)(ii) of this section selection and design and the report of
have been met the owner or operator final remedy selection required at
must submit a risk mitigation plan de- § 257.97(a);
scribing the measures that will be (7) The most recent structural sta-
taken to expedite any required correc- bility assessment required at § 257.73(d);
tive action, and that contains all of the and
following elements: (8) The most recent safety factor as-
(1) A discussion of any physical or sessment required at § 257.73(e).
chemical measures a facility can take (D) To demonstrate that the criteria
to limit any future releases to ground- in paragraph (f)(2)(iv) of this section
water during operation. have been met, the owner or operator
(2) A discussion of the surface im- must submit the closure plan required
poundment’s groundwater monitoring by § 257.102(b) and a narrative that
data and any found exceedances; the specifies and justifies the date by
delineation of the plume (if necessary which they intend to cease receipt of
based on the groundwater monitoring waste into the unit in order to meet
data); identification of any nearby re- the closure deadlines.
ceptors that might be exposed to cur- (vi) The owner or operator at all
rent or future groundwater contamina- times bears responsibility for dem-
tion; and how such exposures could be onstrating qualification for authoriza-
promptly mitigated. tion under this section. Failure to re-
(3) A plan to expedite and maintain main in compliance with any of the re-
the containment of any contaminant quirements of this subpart will result
plume that is either present or identi- in the automatic loss of authorization
fied during continued operation of the under this section.
unit. (vii) The owner or operator must

(C) To demonstrate that the criteria comply with the recordkeeping re-
in paragraph (f)(2)(iii) of this section quirements specified in § 257.105(i), the
494
notification requirements specified in (ii) EPA will evaluate the demonstra-

§ 257.106(i), and the internet posting re- tion and may request additional infor-
quirements in § 257.107(i). mation to complete its review. Submis-
(viii) Upon submission of the dem- sion of a complete demonstration will
onstration to the Administrator or the toll the facility’s deadline to cease re-
Participating State Director the owner ceipt of waste until issuance of a deci-
or operator must prepare and place in sion under paragraph (f)(3)(iv) of this
the facility’s operating record and on section. Incomplete submissions will
its publicly accessible CCR internet not toll the facility’s deadline and will
site a notification that is has sub- be rejected without further process. All
mitted a demonstration along with a decisions issued under this paragraph
copy of the demonstration. or paragraph (f)(3)(iv) of this section
(ix) Upon receipt of a decision pursu- will contain the facility’s deadline to
ant to paragraph (f)(3) of this section, cease receipt of waste.
the owner or operator must place a
(iii) EPA will publish its proposed de-
copy of the decision in the facility’s
cision on a complete demonstration in
operating record and on the facility’s
publicly accessible CCR internet site. a docket on www.regulations.gov for a
(x) The owner or operator must pre- 15-day comment period. If the dem-
pare an annual progress report docu- onstration is particularly complex,
menting the continued lack of alter- EPA will provide a comment period of
native capacity and the progress to- 20 to 30 days.
wards the closure of the CCR surface (iv) After consideration of the com-
impoundment. The owner or operator ments, EPA will issue its decision on
has completed the progress report the alternative compliance deadline
when the report has been placed in the within four months of receiving a com-
facility’s operating record as required plete demonstration.
by § 257.105(i)(20). (4) Transferring between site-specific al-
(3) Process to Obtain Authorization. (i) ternatives. An owner or operator au-
Deadlines for Submission. (A) Except as thorized to continue operating a CCR
provided by § 257.71(d)(2)(iii)(E) and surface impoundment under this sec-
(viii), the owner or operator must sub- tion may at any time request author-
mit the demonstration required under ization to continue operating the im-
paragraph (f)(1)(iv) of this section, for poundment pursuant to another para-
an alternative deadline to cease receipt graph of subsection (f), by submitting
of waste pursuant to paragraph (f)(1) of the information in paragraph (f)(4)(i) or
this section, to the Administrator or (ii) of this section.
the Participating State Director for (i) Transfer from § 257.103(f)(1) to
approval no later than November 30,
§ 257.103(f)(2). The owner or operator of
2020.
a surface impoundment authorized to
(B) An owner or operator may seek
operate pursuant to paragraph (f)(1) of
additional time beyond the time grant-
ed in the initial approval, in accord- this section may request authorization
ance with paragraph (f)(1)(vii) of this to instead operate the surface im-
section, by submitting a new dem- poundment in accordance with the re-
onstration, as required under para- quirements of paragraph (f)(2) of this
graph (f)(1)(iv) of this section, to the section, by submitting a new dem-
Administrator or the Participating onstration that meets the require-
State Director for approval, no later ments of paragraph (f)(2)(v) of this sec-
than fourteen days from determining tion to the Administrator or the Par-
that the cease receipt of waste deadline ticipating State Director. EPA will ap-
will not be met. prove the request only upon deter-
(C) Except as provided by mining that the criteria at paragraphs
§ 257.71(d)(2)(iii)(E) and (viii), the owner (f)(2)(i) through (iv) have been met.
or operator must submit the dem- (ii) Transfer from § 257.103(f)(2) to
onstration required under paragraph § 257.103(f)(1). The owner or operator of
(f)(2)(v) of this section to the Adminis- a surface impoundment authorized to

trator for approval no later than No- operate pursuant to paragraph (f)(2) of
vember 30, 2020. this section may request authorization
495
§ 257.104 40 CFR Ch. I (7–1–21 Edition)
to instead operate the surface im- (c) Post-closure care period. (1) Except
poundment in accordance with the reas provided by paragraph (c)(2) of this
quirements of paragraph (f)(1) of this section, the owner or operator of the
section, by submitting a new dem- CCR unit must conduct post-closure
onstration that meets the require- care for 30 years.
ments of paragraph (f)(1)(iv) of this sec- (2) If at the end of the post-closure
tion to the Administrator or the Par- care period the owner or operator of
ticipating State Director. EPA will ap- the CCR unit is operating under assess-
prove the request only upon deter- ment monitoring in accordance with
mining that the criteria at paragraphs § 257.95, the owner or operator must
(f)(1)(i) through (iii) and (vi) of this sec- continue to conduct post-closure care
tion have been met. until the owner or operator returns to
(iii) The procedures in paragraph detection monitoring in accordance
(f)(3) of this section will apply to all re- with § 257.95.
quests for transfer under this para-
(d) Written post-closure plan—(1) Con-
graph.
tent of the plan. The owner or operator
[85 FR 53561, Aug. 28, 2020, as amended at 85 of a CCR unit must prepare a written
FR 72542, Nov. 12, 2020] post-closure plan that includes, at a
minimum, the information specified in
§ 257.104 Post-closure care require-
ments. paragraphs (d)(1)(i) through (iii) of this
section.
(a) Applicability. (1) Except as pro- (i) A description of the monitoring
vided by paragraph (a)(2) of this sec- and maintenance activities required in
tion, § 257.104 applies to the owners or paragraph (b) of this section for the
operators of CCR landfills, CCR surface CCR unit, and the frequency at which
impoundments, and all lateral expan- these activities will be performed;
sions of CCR units that are subject to
(ii) The name, address, telephone
the closure criteria under § 257.102.
number, and email address of the per-
(2) An owner or operator of a CCR
son or office to contact about the facil-
unit that elects to close a CCR unit by
ity during the post-closure care period;
removing CCR as provided by
and
§ 257.102(c) is not subject to the post-
closure care criteria under this section. (iii) A description of the planned uses
(b) Post-closure care maintenance re- of the property during the post-closure
quirements. Following closure of the period. Post-closure use of the property
CCR unit, the owner or operator must shall not disturb the integrity of the
conduct post-closure care for the CCR final cover, liner(s), or any other com-
unit, which must consist of at least the ponent of the containment system, or
following: the function of the monitoring systems
(1) Maintaining the integrity and ef- unless necessary to comply with the re-
fectiveness of the final cover system, quirements in this subpart. Any other
including making repairs to the final disturbance is allowed if the owner or
cover as necessary to correct the ef- operator of the CCR unit demonstrates
fects of settlement, subsidence, ero- that disturbance of the final cover,
sion, or other events, and preventing liner, or other component of the con-
run-on and run-off from eroding or oth- tainment system, including any re-
erwise damaging the final cover; moval of CCR, will not increase the po-
(2) If the CCR unit is subject to the tential threat to human health or the
design criteria under § 257.70, maintain- environment. The demonstration must
ing the integrity and effectiveness of be certified by a qualified professional
the leachate collection and removal engineer or approved by the Partici-
system and operating the leachate col- pating State Director or approved from
lection and removal system in accord- EPA where EPA is the permitting au-
ance with the requirements of § 257.70; thority, and notification shall be pro-
and vided to the State Director that the
(3) Maintaining the groundwater demonstration has been placed in the
monitoring system and monitoring the operating record and on the owners or
groundwater in accordance with the re- operator’s publicly accessible internet
quirements of §§ 257.90 through 257.98. site.
496
(2) Deadline to prepare the initial writ- pating State Director or an approval
ten post-closure plan—(i) Existing CCR from EPA where EPA is the permitting
landfills and existing CCR surface im- authority that the initial and any
poundments. No later than October 17, amendment of the written post-closure
2016, the owner or operator of the CCR plan meets the requirements of this
unit must prepare an initial written section.
post-closure plan consistent with the (e) Notification of completion of post-
requirements specified in paragraph closure care period. No later than 60
(d)(1) of this section. days following the completion of the
(ii) New CCR landfills, new CCR sur- post-closure care period, the owner or
face impoundments, and any lateral ex- operator of the CCR unit must prepare
pansion of a CCR unit. No later than the a notification verifying that post-clo-
date of the initial receipt of CCR in the sure care has been completed. The noti-
CCR unit, the owner or operator must fication must include the certification
prepare an initial written post-closure by a qualified professional engineer or
plan consistent with the requirements the approval from the Participating
specified in paragraph (d)(1) of this sec- State Director or the approval from
tion. EPA where EPA is the permitting au-
(iii) The owner or operator has com- thority verifying that post-closure care
pleted the written post-closure plan has been completed in accordance with
when the plan, including the certifi- the closure plan specified in paragraph
cation required by paragraph (d)(4) of (d) of this section and the requirements
this section, has been placed in the fa- of this section. The owner or operator
cility’s operating record as required by has completed the notification when it
§ 257.105(i)(4). has been placed in the facility’s oper-
(3) Amendment of a written post-closure ating record as required by
plan. (i) The owner or operator may § 257.105(i)(13).
amend the initial or any subsequent (f) The owner or operator of the CCR
written post-closure plan developed unit must comply with the record-
pursuant to paragraph (d)(1) of this sec- keeping requirements specified in
tion at any time. § 257.105(i), the notification require-
(ii) The owner or operator must ments specified in § 257.106(i), and the
amend the written closure plan when- Internet requirements specified in
ever: § 257.107(i).
(A) There is a change in the oper-
ation of the CCR unit that would sub- [80 FR 21468, Apr. 17, 2015, as amended at 81
stantially affect the written post-clo- FR 51808, Aug. 5, 2016; 83 FR 36455, July 30,
sure plan in effect; or 2018]
(B) After post-closure activities have
RECORDKEEPING, NOTIFICATION, AND

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Title 40

Revised as of July 1, 2021

Containing a codification of documents

Published by Office of the Federal Register

Legal Status and Use of Seals and Logos

Use of ISBN Prefix

U.S. GOVERNMENT PUBLISHING OFFICE

U.S. Superintendent of Documents • Washington, DC 20402–0001

Chapter I—Environmental Protection Agency (Continued) ............ 3

Table of CFR Titles and Chapters ....................................................... 565

Alphabetical List of Agencies Appearing in the CFR ......................... 585

List of CFR Sections Affected ............................................................. 595

To cite the regulations in

Title 40—PROTECTION OF ENVIRONMENT is composed of thirty-seven volumes.

Chapter I—Environmental Protection Agency appears in all thirty-seven vol-

Chapters IV–IX—Regulations issued by the Environmental Protection Agency

CHAPTER I—Environmental Protection Agency (Continued) 190

EDITORIAL NOTE: Nomenclature changes to chapter I appear at 65 FR 47324, 47325, Aug. 2,

SUBCHAPTER F—RADIATION PROTECTION PROGRAMS

201 Noise emission standards for transportation equip-

220 General .................................................................... 190

221 Applications for ocean dumping permits under sec-

239 Requirements for State permit program deter-

PART 190—ENVIRONMENTAL RADI- and by-product materials from the

any radioactive material in support of sociated with a nuclear fuel cycle.

§ 190.11 Variances for unusual oper- Subpart C—Environmental Standards for

the degree to which this operation is ANNUAL COMMITTED EFFECTIVE DOSE

Controlled area means: (1) A surface parts B and C of this part;

composed of or containing radio- frames. Instead, what is required is a

mations, and ground waters that are

§ 191.16 Alternative provisions for dis- any site required to be characterized

fective date of this subpart; and years of undisturbed performance after

source of drinking water, in the acces- § 191.27 Effective date.

(30,000) to determine compliance with the require-

[50 FR 38084, Sept. 19, 1985, as amended at 58 Tissue or organ wT value

purposes of this part, the previously men-

organ is assumed to be proportional to the

pumping would be required to raise water to of 1954, as Amended

termination of the monitoring period (1) The Secretary shall, on a site-spe-

tion plan for each site. The standard, how- concurred.

environment of alternate concentra- (viii) The potential for health risks

or (2) widespread, ambient contamina- (1) A monitoring program shall be

§ 192.02(c)(3) or any supplemental stand- monitoring program established under

with the standard. Computational mod- curred in by the Commission, will

attributable to a disposal operation is reasonable assurance that residual

monitoring program sufficient to a location where site-specific factors

is reasonably achievable. ment of uranium byproduct materials

Act’’), as amended, during and fol- of uranium ore processing operations

not exceeding 20 pCi/m2¥s as required ance of control of radiological hazards

pCi/liter provisions of § 192.41 of this subpart al-

§ 192.42 Substitute provisions.

Copper cyanide (CuCN) 2,6-Dichlorophenol (Phenol, 2,6-dichloro-)

dinitro-) Hexachlorobenzene (Benzene, hexachloro-)

Methylene bromide (Methane, dibromo-) methylnitroso-, ethyl ester)

Selenourea o-Toluidine hydrochloride (Benzenamine, 2-

194.8 Approval process for waste shipment 194.67 Dockets.

Compliance application(s) means the sible estimates of radiation doses and

Applications of Nuclear Energy Au- partment shall submit such informa-

High-Level Nuclear Waste Reposi- § 194.6 Alternative provisions.