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USCA Case #11-1168 Document #1341639 Filed: 11/14/2011 Page 1 of 140 IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 11-1 168 Consolidated with 11-1177 Oral Argument Unscheduled VERMONT DEPARTMENT OF PUBLIC SERVICE, Petitioner, V. UNITED STATES OF AMERICA and NUCLEAR REGULATORY COMMISSION, Respondents, and ENTERGY NUCLEAR OPERATIONS, INC. and ENTERGY NUCLEAR VERMONT YANKEE, LLC, Intervenors ON PETITION FOR REVIEW OF A DECISION OF THE U.S. NUCLEAR REGULATORY COMMISSION JOINT BRIEF OF VERMONT DEPARTMENT OF PUBLIC SERVICE AND NEW ENGLAND COALITION, INC. Christopher M Kilian, Esq. Anthony N.L. Iarrapino, Esq. Conservation Law Foundation 15 East State St. #4 Montpelier, VT 05602 802.223.5992 Pro Bono Counsel for New England Coalition Anthony Z. Roisman, Esq. National Legal Scholars Law Firm 241 Poverty Lane, Unit 1 Lebanon, NH 03766 603.443.4162 John Beling, Esq. 112 State Street Montpelier, Vermont 05620-2601 802.828.3167 Counsel for State of Vermont Department of Public Service

Transcript of USCA Case #11-1168 Document #1341639 Filed: 11/14/2011 ...USCA Case #11-1168 Document #1341639...

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IN THE UNITED STATES COURT OF APPEALSFOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 11-1 168Consolidated with 11-1177

Oral Argument Unscheduled

VERMONT DEPARTMENT OF PUBLIC SERVICE,Petitioner,

V.

UNITED STATES OF AMERICA andNUCLEAR REGULATORY COMMISSION,

Respondents,

and

ENTERGY NUCLEAR OPERATIONS, INC. andENTERGY NUCLEAR VERMONT YANKEE, LLC,

Intervenors

ON PETITION FOR REVIEW OF A DECISION OF THE U.S. NUCLEARREGULATORY COMMISSION

JOINT BRIEF OF VERMONT DEPARTMENT OF PUBLIC SERVICE ANDNEW ENGLAND COALITION, INC.

Christopher M Kilian, Esq.Anthony N.L. Iarrapino, Esq.Conservation Law Foundation15 East State St. #4Montpelier, VT 05602802.223.5992Pro Bono Counsel for New EnglandCoalition

Anthony Z. Roisman, Esq.National Legal Scholars Law Firm241 Poverty Lane, Unit 1Lebanon, NH 03766603.443.4162John Beling, Esq.112 State StreetMontpelier, Vermont 05620-2601802.828.3167Counsel for State of VermontDepartment of Public Service

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CERTIFICATE AS TO PARTIES, RULINGS, AND RELATEDCASES

A. Parties and AmiciPetitionersThe Petitioners in this matter are the Vermont Department of Public Serviceand the New England Coalition, Inc..RespondentsThe Respondents in this matter are the United States Nuclear RegulatoryCommission and the United States of America.IntervenorsEntergy Nuclear Operations, Inc. and Entergy Nuclear Vermont Yankee,LLC have filed petitions to intervene in the consolidated proceedings.AmiciRiverkeeper, Inc. and Scenic Hudson, Inc.

B. RulingThe ruling under review in this proceeding is the United States Nuclear RegulatoryCommission's ("NRC") Issuance of Renewed Facility Operating License No.DPR-28 for the Vermont Yankee Nuclear Power Station issued March 21, 2011.See 76 Fed. Reg. 17162 (March 28, 2011).C. Related Cases1. The consolidated case on review has not previously been beforethis Court or any other court.

CORPORATE DISCLOSURE STATEMENT

Pursuant to D.C. Circuit Rule 26.1 and Federal Rule of Appellate Procedure26.1, the appellant respectfully submits the following corporate disclosurestatement:

New England Coalition. New England Coalition is a non-profiteducational organization under Internal Revenue Code 501(c)(3) formed toinvestigate the safety, suitability, and environmental effects of nuclear powerplants, to participate in government hearings concerning nuclear safety and/orenvironmental impacts, and to inform the public and government agencies of thehazards and risks of nuclear power.. New England Coalition does not own ormaintain a controlling interest in any public company, nor is it owned or controlledby any public company.

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TABLE OF CONTENTS

PageCERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES ... i

CORPORATE DISCLOSURE STATEMENT .............................................. i

TA BLE O F A U TH O RITIES ........................................................................ iii

GLOSSARY OF ABBREVIATIONS ............................................................ vii

JURISDICTIONAL STATEM ENT ............................................................... 1

ISSUES PRESENTED FOR REVIEW ......................................................... 3

STATUTES AND REGULATIONS (In Addendum) .................................... 3STATEMENT OF THE CASE AND RELEVANT FACTS .......................... 3

SUMMARY OF THE ARGUMENT ........................................................... 10

S T A N D IN G ................................................................................................... 11

A R G U M E N T ............................................................................................... 15

I. NRC VIOLATED THE CLEAN WATER ACT BY GRANTING ANEW OPERATING LICENSE FOR VERMONT YANKEEWITHOUT OBTAINING A REQUIRED 401 CERTIFICATION ..... 17

A. CWA § 401 Applies to the License Challenged in this Case ........ 17

B. NRC Could Not Have and Still Cannot Obtain a Vermont-issued § 401 Certification because ENVY has failed to Applyfor Certification from Verm ont .................................................... 20

C. NRC Did Not Obtain the Requisite 401 Certification ................. 22

II. NRC'S FAILURE TO EXPLAIN ITS BASIS FOR IGNORING§ 401(a) AND TO ADDRESS CONCERNS ABOUT THAT FAIL-URE MAKES ITS DECISION ARBITRARY AND CAPRI-C IO U S ............................................................................................ . . 2 6

C O N C L U SIO N ............................................................................................. 28

CERTIFICATE OF COMPLIANCE WITH APPELLATE RULE 32 .......... 30

CERTIFICATE OF SERVICE ...................................................................... 31

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TABLE OF AUTHORITIES

Page

CASES

Ala. Rivers Alliance v. Fed. Energy Regulatory Comm 'n, 325 F.3d 290(D .C . C ir. 2 003) ..................................................................................... 11, 2 7

Alcoa Power Generating, Inc. v. Fed. Energy Regulatory Comm 'n, 643F .3d 963 (D .C . C ir. 20 11) ............................................................................ 11

American Rivers v. Fed. Energy Regulatory Comm'n, 129 F.3d 99 (2dC ir. 19 9 7) ............................................................................................... . . 17

Ass'n of Data Processing Serv. Org., Inc. v. Camp, 397 U.S. 150 (1970) ...... 14

Calvert Cliffs' Coordinating Comm. v. Atomic Energy Comm'n, 449F.2d 1109 (D .C . C ir. 1971) .................................................................... 23

City of Fredericksburg v. Fed. Energy Regulatory Comm 'n, 876 F.2d1109 (4th C ir. 1989) ............................................................................... 2 1

City of Tacoma v. Fed Energy Regulatory Comm'n, 460 F.3d 53(2 0 0 6) ........................................................................................... 2 , 15 ,2 3 ,24

Entergy Nuclear Vermont Yankee, LLC and Entergy Nuclear Opera-tions, Inc. (Vermont Yankee Nuclear Power Station) LBP-06-20, 64N .R.C. 131 (September 22, 2006)...................................................... 5, 27

Entergy Nuclear Vermont Yankee, CLI-07-16, 65 N.R.C. 371 (Apr. 11,20 07) ................................................................................................... . . . 2 3

Entergy Nuclear Vermont Yankee, LLC and Entergy Nuclear Oper-ations, Inc. (Vermont Yankee Nuclear Power Station) Memorandumand Order (Denying New England Coalition's Motion to AmendContention 1 and Motion For Reconsideration of Contention 1)unpublished Slip op. at 8 (Oct. 30, 2006) .................................................. 9

Honicker v. U.S. Nuclear Regulatory Comm 'n, 590 F.2d 1207 (D.C. Cir.19 7 8 ) .............................................................................................................. 1

In re Appeal of Clyde River Hydroelectric Project, 2006 VT 11 ¶ 3 ........... 18

Keating v. Fed Energy Regulatory Comm 'n, 927 F.2d 616 (D.C. Cir.19 9 1) ..................................................................................................... . . 17

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TABLE OF AUTHORITIES - Continued

Page

Kennecott Utah Copper Corp. v. U. S. Dep't. of Interior, 88 F.3d 1191(D .C . C ir. 1996) ..................................................................................... 2 6, 2 8

Philadelphia Electric Company (Limerick Generating Station, Units 1and 2), 15 N .R .C . 1423 ............................................................................ 9

Public Citizen, Inc. v. Fed. Aviation Administration, 988 F.2d 186 (D.C.C ir. 19 9 3) ............................................................................................... . . 2 6

S.D. Warren Co. v. Maine Bd of Envtl. Prot., 547 U.S. 370(2006) ........................................................................... 2,7, 12, 15, 18,24,27

Town of Barnstable, Mass. v. Fed Aviation Administration, No. 10-1276, Slip op., __ F.3d __ (D.C. Cir. Oct. 28, 2011) ......................... 20

Water Transport Ass 'n v. Interstate Commerce Comm 'n, 819 F.2d 1189(D .C . C ir. 1987) ...................................................................................... . . 2

Wisc. Elec. Power Co., et al. (Koshkonang Nuclear Plant, Units 1 and 2)8 A .E.C. 928, 1974 W L 18995 ................................................................. 9

STATUTORY PROVISIONS

10 V .S .A . § 1004 ........................................................................................ 2 1,24

10 V .S .A . § 1263 ......................................................................................... 24

28 U .S .C . § 2342(4) ........................................................................................ 1

28 U .S .C . § 2344 ........................................................................................... . . 2

33 U .S.C . §§ 1251 etseq .............................................................................. 4

33 U .S .C . § 125 1(a) ..................................................................................... 14

33 U .S.C . § 1251(a)(2) ................................................................................ 15

33 U .S .C . § 125 1(b) .................................................................................... . . 15

33 U .S .C . § 125 1(e) ..................................................................................... 15

33 U .S.C . § 134 1 ................................................................... 2,5,6,7, 12,24,26*Authorities upon which we chiefly rely are marked with asterisks.

*33 U .S.C . § 134 1(a) ............................................................ 3, 16, 17, 18,26,27

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33 U.S.C. § 1341(a)(1) ......................................... 4, 6, 11, 15, 17, 20, 21, 22, 25*33 U.S.C. § 1341(d) ................................................................ 11, 12, 15, 16, 17

33 U .S .C . § 1342 .......................................................................................... . . 5

33 U.S.C. § 1371(c)(2)(A) .......................................................................... 23

42 U .S .C . § 202 1(1) .................................................................................... . . 11

4 2 U .S .C . § 22 39(b )(1) ....................................................................................... I

Administrative Procedure Act § 706(2)(A) .................................................. 28

REGULATIONS

10 C .F .R . P art 5 1 ...................................................................................... 5,9 ,26

10 C.F.R. § 2.309(f)(3) ................................................................................... 6

10 C .F .R . § 50 .2 .......................................................................................... . . 18

10 C .F .R . § 50.54 ........................................................................................ . . 18

10 C.F.R. § 50.54(aa) .................................................................................... 18

10 C .F .R . § 54 .17 ........................................................................................ . . 18

10 C .F .R . § 54 .33(c) ..................................................................................... 18

37 Fed. Reg. 6345 (March 28, 1972) ............................................................. 5

61 Fed. Reg. 28467 ..................................................................................... 19

61 Fed. Reg. 28474 ..................................................................................... 19

71 Fed. Reg. 15220-02 (March 27, 2006) .................................................... 4

76 Fed. Reg. 17162 (March 2, 2011) ........................................................... 10

Environmental Review for Renewal of Nuclear Power Plant OperatingLicenses, 61 Fed. Reg. 28467 (June 5, 1996) ......................................... 18

V

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TABLE OF AUTHORITIES - Continued

Page

Vermont Water Pollution Control Permitting Regulations

R u le 13.3(c)(1) ...................................................................................... . . 2 1

R u le 13 .1 1 ............................................................................................ . . 2 1

R u le 13 .11 (b ) ........................................................................................ . . 2 1

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AEC

ASLB

CWA

DPS

ENVY

FAA

FSEIS

GEIS

NEC

NEPA

NPDES

NRC

VWPCPR

VWRB

GLOSSARY OF ABBREVIATIONS

Atomic Energy Commission

Atomic Safety and Licensing Board

Clean Water Act

Vermont Department of Public Service

Entergy Nuclear Vermont Yankee

Federal Aviation Administration

Final Supplemental Environmental Impact Statement

Generic Environmental Impact Statement

New England Coalition

National Environmental Policy Act

National Pollutant Discharge Elimination System

Nuclear Regulatory Commission

Vermont Water Pollution Control Permitting Regulations

Vermont Water Resources Board

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JURISDICTIONAL STATEMENT

The Hobbs Act, 28 U.S.C. § 2342(4), vests exclusive jurisdiction in the

Courts of Appeals to "enjoin, set aside, suspend (in whole or in part), or to

determine the validity of.. .all final orders of the Atomic Energy Commission [now

the Nuclear Regulatory Commission] made reviewable by section 2239 of title

42." The Atomic Energy Act, 42 U.S.C. § 2239(b)(1), in turn, authorizes judicial

review of the Nuclear Regulatory Commission's actions in proceedings for the

granting of licenses. For purposes of the Hobbs Act, this Court's precedent holds

that "[a] 'final order' is one that imposes an obligation, denies a right, or fixes

some legal relationship, usually at the consummation of an administrative

process." Honicker v. U.S. Nuclear Regulatory Comm 'n, 590 F.2d 1207, 1209

(D.C. Cir. 1978). It is beyond dispute that issuance of a final license by the Nuclear

Regulatory Commission ("NRC") is a final order for purposes of the Hobbs Act.

The violation of federal law that Vermont and New England Coalition

("NEC") seek to redress in this case occurred when NRC granted Renewed Federal

Operating License No. DPR-28 to Entergy Nuclear Vermont Yankee, LLC

("ENVY") on March 21, 2011, without first obtaining a Vermont-issued § 401

Certification for the licensed facility. Upon its issuance of a final license without a

§ 401 Certification, NRC directly violated the plain language of the Clean Water

Act ("CWA"), purported to fix the legal relationship between Vermont, NRC and

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ENVY, and denied Petitioners the right to ensure protection of Vermont's water

resources through the substantive and procedural safeguards Congress reserved to

the states and their citizens in CWA § 401, 33 U.S.C. § 1341. See S.D. Warren Co.

v. Maine Bd. of Envtl. Prot., 547 U.S. 370, 385 (2006) (recognizing the importance

of § 401 in preserving state authority under the CWA); see also City of Tacoma v.

Fed. Energy Regulatory Comm 'n, 460 F.3d 53, 68 (2006) (recognizing the

importance of public participation rights afforded by § 401). Upon final license

issuance, NRC irreversibly and unlawfully bypassed Vermont's § 401 certification

process, making Vermont and NEC, who participated in the NRC's licensing

docket, "aggrieved" parties for purposes of Hobbs Act review. See Water

Transport Ass 'n v. Interstate Commerce Comm 'n, 819 F.2d 1189, 1193-1194,

(D.C. Cir. 1987) (explaining that, under the Hobbs Act, "a party aggrieved" is one

who suffers an injury-in-fact within the zone of interests protected by statute and

traceable to the action of the federal agency).

Consistent with the requirements of 28 U.S.C. § 2344, Petitioners timely

filed their respective petitions for review on May 19, 2011, within sixty days of

NRC's March 21, 2011 issuance of the license to ENVY.

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ISSUES PRESENTED FOR REVIEW

I. Whether the Nuclear Regulatory Commission violated Clean Water

Act § 401(a), 33 U.S.C. § 1341(a), when it granted Renewed Federal Operating

License No. DPR-28 without first obtaining a § 401 water quality certification

issued by the State of Vermont to the operator of the nuclear power plant covered

by the license, thereby vitiating the State of Vermont's federally sanctioned

regulatory water quality primacy over activities that may result in a discharge to

Vermont waters?

II. Whether the Nuclear Regulatory Commission acted arbitrarily,

capriciously, and contrary to law in violation of Administrative Procedure Act §

706(2)(A) when it offered no basis in the record of its proceedings below for its

decision to grant a federal license for operation of a nuclear power plant that

discharges to Vermont waters without first obtaining a valid water quality

certification issued by the State of Vermont, for the licensed facility, pursuant to

Clean Water Act § 401(a), 33 U.S.C. § 1341(a)?

STATUTES AND REGULATIONS (In Addendum)

STATEMENT OF THE CASE AND RELEVANT FACTS

The background facts and procedural history demonstrating that NRC

violated Clean Water Act § 401(a), 33 U.S.C. § 1341(a), on March 21, 2011, by

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granting the federal license challenged in this appeal without first obtaining a

Vermont-issued § 401 Certification are set forth below.

In 2006, ENVY applied to NRC for a new license to operate the Vermont

Yankee Nuclear Power Station ("Vermont Yankee") for a twenty-year period

beyond March 21, 2012, the expiration date of its then-existing operating license.

71 Fed. Reg. 15220-02 (March 27, 2006). ENVY's application did not provide the

NRC with any Vermont-issued § 401 Certification of compliance with "applicable

provisions" of the Clean Water Act (33 U.S.C. § 1251 et seq.) and with "any other

appropriate requirement of State law" as required by 33 U.S.C. § 1341 (a)(1) and

(d). Vermont Yankee Nuclear Power Station, Applicant's Environmental Report,

CI:740 at 9-3 to 9-5, Table 9-1 ("ER")' (omitting mandatory § 401 Certification).

In its application, ENVY referenced having received a "water quality

certification on October 29, 1970, as amended on November 26, 1971, reflecting

its receipt of reasonable assurance [from the Vermont Water Resources Board] that

operation of Vermont Yankee will not violate applicable water quality standards."

Id. at 9-1.2 ENVY also noted that it then held a National Pollutant Discharge

'All citations to "CI" are documents contained in the Certified Index filed in thisCourt by NRC on July 8, 2011.2-On November 30, 1966, the Vermont Yankee Nuclear Power Corporation appliedto the Atomic Energy Commission ("AEC") for a permit to construct a nuclearpower plant in Vernon, Vermont. U.S. AEC, Final Environmental StatementRelated to the Operation of Vermont Yankee. CI:737, I-1. On December 11, 1967,the AEC issued a provisional construction permit. Id. On August 24, 1970, the

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Elimination System ("NPDES") permit, a permit issued pursuant to 33 U.S.C.

§ 1342 (§ 402), from Vermont. Id. ENVY did not file a copy of the 1970 "water

quality certification" applicable to the prior operating license with its application to

NRC for relicensing. ENVY did not assert that either the old certification or the

§ 402 permit met § 401 Certification requirements, and did not list a § 401

Certification as one of the permits it possessed when it filed its ER. CI:740 at 9-3

to 9-5, Table 9-1.3

NEC and Vermont filed Petitions for Leave to Intervene, a Request for

Hearing, and Contentions in the NRC license renewal proceeding on May 26,

2006. CI:2; CI:3. NRC recognized that Vermont and NEC have standing, and

accepted them as full parties in the proceeding. Entergy Nuclear Vermont Yankee,

Vermont Yankee Nuclear Power Cooperation filed an application with theVermont Water Resources Board ("VWRB") for certification that discharges intothe Connecticut River from the plant will not violate applicable water qualitystandards. Id. at A-4. On October 29, 1970, the VWRB issued certification thatdischarges into the Connecticut River from the plant will not violate applicablewater quality standards. Id. On November 26, 1971, the VWRB amended thecertification it issued on October 29, 1970, adding certain conditions to itscertification. Id. This is the last "Water Quality Certification" applied for orapproved for Vermont Yankee. On March 21, 1972, the AEC issued FacilityOperating License No. DPR-28 to Vermont Yankee for a term of 40 years. 37 Fed.Reg. 6345 (March 28, 1972).' As part of its non-Clean Water Act review in this matter, the NRC prepared anenvironmental impact statement pursuant to the National Environmental Policy Act("NEPA") and its own regulations (10 C.F.R. Part 51). Its Final SupplementalEnvironmental Impact Statement ("FSEIS") is almost 800 pages long and yet itnever mentions 33 U.S.C. § 1341 or water quality certification from Vermont. CI:758,759.

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LLC, and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power

Station) LBP-06-20, 64 N.R.C. 131, 144-46 (September 22, 2006) CI:62 at 7-9.

During the course of the relicensing process, Vermont and NEC diligently

and directly asserted that without a § 401 Certification, NRC could not issue the

new license.4 For example, filings before NRC included the following statements:

"It is also important to note that § 401 Water Quality Certificationis jurisdictional and imposes an independent obligation on Entergyand the NRC, regardless of whether the need for certification israised as a contention. 'Any applicant for a federal license orpermit to conduct any activity including, but not limited toconstruction or operation of facilities, which may result in anydischarge ... shall provide the licensing or permitting agency acertification from the state' that the discharge complies with statewater quality requirements. 33 U.S.C. § 1341(a)(1). 'No license orpermit shall be granted if certification has been denied by theState.' Id. In short, neither Entergy nor the NRC can escape § 40 I'sobligations by simply claiming that it was not part of this (or any)contention.'5

4 Although NRC and Entergy were given ample notice of NRC's duty to complywith all the requirements of 33 U.S.C. § 1341, NRC's duty to comply with thatCongressional mandate was in no way dependent upon such notice. Even if noparty had raised the issue of the absence of a § 401 Certification, NRC would stillhave acted illegally if it issued a new operating license without obtaining therequired certification from Vermont.5NEC's Opposition To Entergy's Motion to Strike Portions of NEC's Reply(7/20/2006) CI:45, 7-8. Vermont adopted NEC's Contention 1 (CLI:8) andunder 10 C.F.R. § 2.309(f)(3), if two or more petitioners seek to co-sponsora contention, the petitioners are required to jointly designate a representativewith authority to act for both petitioners with respect to that contention, andmust either agree or jointly designate the sponsoring petitioner as therepresentative with respect to that contention. Vermont and NEC agreed thatNEC was the representative as to Contention 1. Vermont did not move toadopt NEC's proposed Amended or New Contention. CLI:86 at 4, n. 1.

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" "Further basis demonstrating the inadequacy of Entergy's amendedenvironmental report is the absence of a CWA § 401 WaterQuality Certification. Entergy is on notice that its requested licenseextension cannot issue without a § 401 Certification. Yet, Entergy'samended environmental report makes no mention of any effort toseek and obtain § 401 Certification.' 6

" "Based on NEC's prior filings in this matter, Entergy is on noticethat its requested license extension cannot issue without a CleanWater Act § 401 certification. Astonishingly, Entergy'sAmendment 6 to its Environmental Report nonetheless makes nomention of this issue.... [n. I] Additionally, Entergy has anindependent obligation to obtain a § 401 certification, and the NRCis jurisdictionally limited to acting in conformity with § 401requirements. 33 U.S.C. § 1341; S.D. Warren v. State of Maine,547 U.S._, 126 S.Ct. 1843, 1846 (2006)."7

NRC did not issue any order or notice to Vermont referencing the 1970

operating license water quality certification in reference to the new license.

Similarly, NRC never issued any order or notice referencing its reliance on the

Vermont-issued § 402 permit to directly satisfy or imply § 401 Certification. NRC

did not list the 1970 WQC as one of the permits possessed by ENVY when it

issued its Final Supplemental Environmental Impact Statement ("FSEIS") (Vol. 2,

6 NECs Late Contention Or, Alternatively, Request for Leave to Amend or File a

New Contention (8/7/2006) CI:53, 4-5. In opposing NEC's proposed newcontention, again raising the absence of a § 401 Certification, neither NRC norENVY sought to defend the absence of such a Certification but merely asserted theissue was not within the proper scope of the hearings. Entergy's Answer to NEC'sLate Contention (8/17/2006) CI:56; NRC StaffAnswer Opposing NEC's LateContention, or Alternatively, Request for Leave to Amend or File a NewContention (8/17/2006) CI:55.7NEC Reply to Entergy And NRC StaffAnswers to NEC's Late Contention, orAlternatively, Request for Leave to Amend or File a New Contention (8/25/2006)CI: 57, 5-6.

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Appendix E at Table E-2) CI:759; nor did it mention any § 401 Certificate in its

nearly 800-page FSEIS.

On June 23, 2006, while NEC and Vermont were asserting before the

Atomic Safety Licensing Board ("ASLB") and NRC that ENVY and NRC had yet

to comply with CWA § 401, the Vermont Agency of Natural Resources ("ANR")

submitted scoping comments to NRC to assist in its review of the license renewal

application. CI:743. ANR's comments, which were addressed to "the generic

environmental impact analysis" included the following statement reserving

Vermont's CWA authority and the State's reliance on both CWA requirements and

the NPDES permitting process to protect the State's water quality interests:

Issues 18, 20, 23, 24, and 28 through 30 (Thermal plume barrier tomigrating fish, Premature emergence of aquatic insects, Losses amongorganisms exposed to sublethal stresses, Stimulation of nuisanceorganisms, Entrainment, Impingement, and Heat shock) As we understandit, these issues are associated with intake structures and thermal dischargeissues which require a NPDES permit. The requirements of the Clean WaterAct and the NPDES permit will provide assurance that the impacts ofpermitted intake structures and discharges meet the applicable federal andstate requirements.

Id.At no time during the relicensing proceeding did NRC or ENVY argue or

even suggest that these scoping comments were tantamount to an acknowledgment

that ENVY possessed a valid § 401 Certification, that the 1970 certification could

satisfy § 401 requirements with respect to a new 2011 license, or that a CWA §

402 permit was a substitute for a § 401 Certification. Id. Neither the scoping

8

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comments nor any other representation from the State of Vermont support or adopt

these rationales nor excuse noncompliance with § 401.

In addressing § 401 Certification in this matter, the ASLB adhered to its

long-established "general rule" that NRC may complete its hearing process prior to

receipt of a water quality certification because the § 401 obligation is an entirely

separate matter from NRC's independent environmental review obligations. 8

Entergy Nuclear Vermont Yankee, LLC, and Entergy Nuclear Operations, Inc.

(Vermont Yankee Nuclear Power Station) Memorandum and Order (Denying New

England Coalition's Motion to Amend Contention I and Motion For

Reconsideration of Contention 1) unpublished slip op. at 8 (Oct. 30, 2006) (holding

that "CWA § 401 certification is simply an independent statutory requirement, and

neither NEPA nor 10 C.F.R. Part 51 incorporates or requires it.") (available at the

8 Wisc. Elec. Power Co., et al. (Koshkonong Nuclear Plant, Units 1 and 2) 8 A.E.C.

928, 930, 1974 WL 18995 (holding that NRC licensing proceedings for theKoshkonong nuclear power plant were not premature despite the fact that theWisconsin Department of Natural Resources had not yet issued water qualitycertifications for the plants because "[s]uch a proposal is unreasonable and willresult in needless delay. As a general rule it is the practice of the Commission topursue its administrative procedures while other state and local proceedings areunder way"); Philadelphia Electric Company (Limerick Generating Station, Units1 and 2), 15 N.R.C. 1423, 1470 ("[I]t is true that the Applicant must have eithercertification from the state under section 401 of the Clean Water Act or a waiverby the state of the need for such certification before a license can issue....[nor isNRC] the proper forum to litigate whether other agencies should issue permits.Therefore, we may close our record without a showing that all permits have beenreceived").

9

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NRC electronic data base (ADAMS) as ADAMs Accession No. ML063030484.9

CI:62 at 8)

The NRC ruled on the final issue in the licensing hearing on March 1,2011.

CLI:73 1. Consistent with its long-standing "general rule," neither the opinion nor

the licensing hearing addressed the issue of whether ENVY possessed a valid

§ 401 Certification from Vermont. It was not until March 21, 2011, after closing its

hearing record, that NRC granted ENVY a new operating license for Vermont

Yankee that will expire on March 21, 2032. See 76 Fed. Reg. 17162 (March 2,

2011). NRC issued the license even though it had been made aware of the need for

a § 401 Certification but had not received from ENVY a valid § 401 Certification

issued by Vermont with regard to the new operating license.

SUMMARY OF THE ARGUMENT

The Nuclear Regulatory Commission violated Clean Water Act § 401 when

it granted ENVY a new federal license to operate Vermont Yankee without first

obtaining the requisite Vermont-issued "401 Certification" from applicant ENVY.

The Clean Water Act expressly prohibits NRC from granting ENVY a license

under these circumstances. To secure such certification, CWA § 401 and Vermont-

adopted implementing regulations first require ENVY to file an administratively

9 NRC identifies documents in its Agency Wide Documents and AccessManagement System, known as the "ADAMS," www.nrc.gov/reading-rm/adams/web-based.html, by "ML" numbers.

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complete certification application with Vermont and demonstrate to Vermont that

Vermont Yankee operations "will comply with the applicable provisions of

sections 301, 302, 303, 306, and 307 of' the Clean Water Act and "with any other

appropriate requirement of State law." 33 U.S.C. § 1341(a)(1) and (d). Unless and

until ENVY does so, NRC must heed the Clean Water Act's clear prohibition on

granting a license unsupported by a state-issued § 401 Certification, thereby

respecting the procedural and substantive primacy the Act assigns to state decision-

makers under § 401.

The Court should determine, de novo, whether NRC complied with the plain

legal requirements of CWA § 401. Alcoa Power Generating, Inc. v. Fed. Energy

Regulatory Comm 'n, 643 F.3d 963, 972 (D.C. Cir. 2011) (citing, Ala. Rivers

Alliance v. Fed. Energy Regulatory Comm 'n, 325 F.3d 290, 296-97 (D.C. Cir.

2003)). Petitioners seek an order reversing the NRC license issuance, and directing

NRC to refrain from issuing a license to ENVY until, and unless, the required §

401 Certification from the State of Vermont is obtained.

STANDING

Pursuant to 42 U.S.C. § 2021 (1), the State of Vermont was guaranteed a

"reasonable opportunity for State representatives to offer evidence, interrogate

witnesses, and advise the Commission as to the application" for "each application

for Commission license authorizing an activity" regulated by NRC. Vermont

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exercised that right by seeking to intervene in the proceedings regarding ENVY's

application for a new operating license for Vermont Yankee. The ASLB, created to

hold hearings on the limited issues within NRC's relicensing jurisdiction, ruled

that "DPS [Vermont Department of Public Service] satisfies the requirement for

standing to intervene under Section 2.309(d)(2) because the proceeding concerns

the Vermont Yankee Nuclear Power Station, which is located within the

boundaries of the State of Vermont." CI:62 at 7.

In addition, the basis for this Petition for Review is to enforce the rights

guaranteed to the State of Vermont under 33 U.S.C. § 1341. "State certifications

under § 401 [33 U.S.C. § 1341] are essential in the scheme to preserve state

authority to address the broad range of pollution .... These are the very reasons

that Congress provided the States with power to enforce 'any other appropriate

requirement of State law,' 33 U.S.C. § 1341(d), by imposing conditions on federal

licenses for activities that may result in a discharge." S.D. Warren Co. v. Maine

Bd of Envtl Prot., 547 U.S. 370, 386 (2006) (citations omitted).

New England Coalition, Inc. is a member-supported, Vermont non-profit

educational corporation headquartered in Brattleboro, Vermont with members

throughout Vermont and New England. Upon a showing of both organizational

and representational standing, NEC applied for, and the NRC's ASLB allowed,

intervention in the NRC proceedings that resulted in the granting of the ENVY

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license whose validity NEC challenges in this petition. CI:62 at 8-9. One of NEC's

central purposes is to investigate the environmental impacts of civilian nuclear

power production and to participate, on behalf of its members, in governmental

proceedings with the aim of preventing and mitigating such environmental impacts

as would negatively affect the well-being of its members and their use and

enjoyment of public resources.

NEC's representational standing is self-evident in the administrative record.

In its application for intervention in the NRC proceedings, NEC demonstrated

through member affidavits that its "[m]embers use and enjoy the segment of the

Connecticut River adjacent to Vermont Yankee on personal and professional

bases." CI:2 at 7. One affiant, Sally Shaw, averred that she has spent years

canoeing and kayaking the Connecticut River and is concerned that discharges

from Vermont Yankee will lead to the decline of the River's flora and fauna and

harm her enjoyment of the river. CI:2 at Exhibit 3. Affiant David Deen is a

licensed fly-fishing guide concerned that Vermont Yankee's impact on the

Connecticut River's American shad would negatively affect his business and his

personal enjoyment of the river for recreational fishing. CI:2 at Exhibit 4. In the

NRC proceedings, NEC raised a variety of water-related issues, including the need

for NRC to comply with CWA § 401. Supra at pp. 6-7 nn.5-7 (citing record

sources). The ASLB in this docket accepted these averments and NEC Contention

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I relating to a range of water quality issues, recognizing, inter a/ia, that the affiants

had authorized "the organization to represent their interests in any proceeding

regarding Entergy's license renewal application." CI:62 at 8-9.

NEC and its members seek to vindicate continuing concerns related to

Vermont Yankee's water quality impacts on the Connecticut River and its flora

and fauna. Through its precipitous granting of a federal twenty-year license for

Vermont Yankee operations unsupported by a Vermont-issued § 401 Certification,

NRC allowed ENVY to unlawfully circumvent Vermont's § 401 proceedings.

NRC's violation of CWA § 401 prevents NEC from seeking redress on behalf of

its affected members for the present and prospective injuries to their interests in

using and enjoying a Connecticut River whose water quality and fisheries are

undiminished by undue impacts associated with the discharges from, and operation

of, Vermont Yankee.

The respective interests Petitioners set forth above fall well within the zone

of interests protected by the CWA. See Ass 'n of Data Processing Serv. Org., Inc. v.

Camp, 397 U.S. 150, 153-54 (1970) (articulating the "zone of interest" component

of prudential standing in cases involving statutory violations). The purpose of the

Clean Water Act is to restore and maintain the chemical, physical, and biological

integrity of the Nation's waters. 33 U.S.C. § 1251 (a). Its express objectives include

"water quality which provides for the protection and propagation of fish, shellfish,

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and wildlife and provides for recreation in and on the water." Id. § 1251 (a)(2). The

CWA sets forth Congressional policy to "recognize, preserve, and protect the

primary responsibilities and rights of States to prevent, reduce and eliminate

pollution" and "to plan the development and use (including restoration,

preservation, and enhancement) of land and water resources." Id. § 1251 (b). The

CWA also sets forth Congressional policy that state and federal officials shall

provide for, encourage, and assist "public participation in the development,

revision, and enforcement, of any regulation, standard, effluent limitation, plan, or

program" required by the Act. Id. § 125 1(e); accord City of Tacoma, 460 F.3d at

68 (recognizing importance of public participation procedures required by CWA

§ 401(a)(1)).

ARGUMENT

"State certifications under § 401 are essential in the scheme to preserve state

authority to address the broad range of pollution." S.D. Warren Co., 547 U.S. at

386 (2006). The certification "shall become a condition on any Federal license or

permit," 33 U.S.C. § 1341(d), and is an essential element of cooperative federalism

under the CWA. Id. at 385. "No license or permit shall be granted until the

certification required by this section has been obtained or has been waived. .. ." 33

U.S.C. § 1341 (a)(1). NRC's issuance of a new operating license for Vermont

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Yankee without a § 401 Certification violates 33 U.S.C. § 1341(a) and (d). The

record in this case reveals, without question, that:

* ENVY did not request a § 401 Certification from Vermont with

regard to its application for a renewed operating license for Vermont

Yankee;

* ENVY did not provide NRC a § 401 Certification from Vermont in

conjunction with its application for a renewed operating license for

Vermont Yankee;

* NRC neither asked Vermont whether it had issued a § 401

Certification nor whether the requirement had been waived, nor did it

obtain a valid § 401 Certification with regard to the renewed operating

license for Vermont Yankee from ENVY;

- NRC issued a renewed operating license to ENVY for Vermont

Yankee without obtaining a § 401 Certification, without determining

whether a valid § 401 Certification had been issued and without

providing any statement of the reasons for its decision to issue the

license to ENVY without possessing the § 401 Certification.

This Court should reverse NRC's grant of a new operating license for Vermont

Yankee and remand this matter to NRC with instructions not to grant the requested

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operating license unless and until ENVY provides NRC with a valid § 401

Certification from Vermont specific to the new license.

I. NRC VIOLATED THE CLEAN WATER ACT BY GRANTING ANEW OPERATING LICENSE FOR VERMONT YANKEEWITHOUT OBTAINING A REQUIRED 401 CERTIFICATION

A. CWA § 401 Applies to the License Challenged in this Case

Section 401(a)(1) of the CWA, 33 U.S.C. § 1341(a)(1), provides that:

Any applicant for a Federal license or permit to conduct anyactivity... which may result in any discharge into the navigable waters,shall provide the licensing or permitting agency a certification fromthe State in which the discharge originates or will originate .... Nolicense or permit shall be granted until the certification required bythis section has been obtained or has been waived .... No license orpermit shall be granted if certification has been denied by the State.

Id. (Emphasis added). This Court has stated that "[t]here is no doubting that [the

federal licensing agency] is bound by federal law to refuse a ... license application

that is unsupported by a valid state certification under section 401 ." Keating v.

Fed. Energy Regulatory Comm 'n, 927 F.2d 616, 622 (D.C. Cir. 1991). The

language of 33 U.S.C. § 1341(a) and (d) is "unequivocal." American Rivers v. Fed.

Energy Regulatory Comm 'n, 129 F.3d 99, 107 (2d Cir. 1997). "State certifications'

under [33 U.S.C.] § 401 are essential in the scheme to preserve state authority to

address the broad range of pollution ... These are the very reasons that Congress

provided the States with power to enforce 'any other appropriate requirement of

State law,' 33 U.S.C. § 1341(d), by imposing conditions on federal licenses for

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activities that may result in a discharge." S.D. Warren Co, 547 U.S. at 386

(citations omitted).

The express terms of CWA § 401 govern the NRC license issuance that

Vermont and NEC challenge. ENVY is an "applicant" for a federal license. 10

C.F.R. § 54.17; FSEIS, CI:758 at 1-1 ("Entergy is a licensee for the purposes of its

current OL and an applicant for the renewal of the OL."); 33 U.S.C. § 1341(a)

(creating certification requirement for "any applicant for a Federal license"). The

Vermont Yankee renewed license falls squarely within the NRC's definition of

"license." 10 C.F.R. § 50.2 ("License means a ... renewed license issued by the

Commission under.., part 54 of this chapter."); cf In re Appeal of Clyde River

Hydroelectric Project, 2006 VT 11, ¶ 3 ("applicant for relicensure" of existing

hydroelectric facility "was required to obtain a § 401 certificate from the state" of

Vermont).

NRC's own regulations underscore the applicability of § 401. They

specifically require that "[t]he license shall be subject to all conditions deemed

imposed as a matter of law by sections 401 (a)(2) and 401 (d) of the Federal Water

Pollution Control Act, as amended (33 U.S.C.A. 1341(a)(2) and (d))" 10 C.F.R. §

50.54(aa). The provisions of 10 C.F.R. § 50.54 apply explicitly to all renewed

licenses. 10 C.F.R. § 54.33(c); see also Environmental Review for Renewal of

Nuclear Power Plant Operating Licenses, 61 Fed. Reg. 28467, 28474 (June 5,

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1996) ("In issuing individual license renewals, the Commission will comply, as has

been its practice, with the provisions of Section 401 of the Federal Water Pollution

Control Act (see 10 CFR 51.45(d) and 51.71(c))."

When NRC developed its rules and regulations for consideration of

applications for renewed operating licenses for nuclear power plants, it committed

to full compliance with the requirements of § 401. In 1996, NRC prepared a

"Generic Environmental Impact Statement for License Renewal of Nuclear Plants"

NUREG-1437 (May 1996) ("GEIS") (available from ADAMS under the ADAMS

Accession Nos. ML040690705 (Main Report) and ML 040690738 (Appendices)

that addresses those impacts that NRC determined are generic to license renewals

for all plants. See 61 Fed. Reg. 28467 (June 5, 1996). When it issued the GEIS,

NRC made the following commitment in response to concerns raised by public

comments that it was ignoring its obligations under the Clean Water Act: "In

issuing individual license renewals, the Commission will comply, as has been its

practice, with the provisions of Section 401 of the Federal Water Pollution Control

Act (see 10 CFR 51.45(d) and 51.71(c))." 61 Fed. Reg. at 28474. Nonetheless, in

this case the NRC issued a renewed license to ENVY for the Vermont Yankee

plant on March 11, 2011, without seeking or obtaining a § 401 Certification from

Vermont and without offering any explanation of justification for its actions.

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This Court has recently affirmed the principle that it will not sustain federal

agency actions where the agency fails to justify, on the record, deviations from the

agency's prior policy and regulatory commitments. In Town of Barnstable, Mass.

v. Fed. Aviation Administration, No. 10-1276, Slip op., --F.3d-- (D.C. Cir. Oct. 28,

2011), the Federal Aviation Administration (FAA) had concluded that a proposed

offshore wind project did not create a "substantial adverse effect" on airplanes in

the area but, in doing so, had ignored its own guidelines for deciding whether the

proposed project would not endanger air safety. The FAA offered no explanation

for this deviation from its own guidance and this Court found that its failure to

provide that explanation triggered "the standard requirement of reasoned decision-

making, i.e., to require the FAA to address the issues and explain its conclusion."

Id. Slip op. at 13-14 (citation omitted). The Court vacated the FAA decision and

remanded the case to the FAA.

B. NRC Could Not Have and Still Cannot Obtain a Vermont-issued § 401Certification because ENVY has failed to Apply for Certification fromVermont

The CWA places the threshold burden on a license applicant to request a

§ 401 Certification from the appropriate state. 33 U.S.C. § 1341(a)(1). States are

only obligated to act under Section 401 upon a "request" for a certification from a

prospective licensee. Id. ("If the state ... fails or refuses to act on a request for

certification, within a reasonable period of time (which shall not exceed one year)

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after receipt of such request, the certification requirements of this subsection shall

be waived with respect to such Federal application.") (Emphasis added). Without a

request that is in full conformance with state application requirements and action

by the state on that application, federal licensees cannot claim possession of full,

valid authorization to allow "discharge into the navigable waters" under the federal

license that is subject to state certification. See City of Fredericksburg v. Fed

Energy Regulatory Comm 'n, 876 F.2d 1109, 1111-12 (4th Cir. 1989).

Vermont law, 10 V.S.A. § 1004, provides that "the agency of natural

resources shall be the certifying agency of the state for purposes of Section 401 of

the Clean Water Act and the secretary's determination on these certifications shall

be final agency action by the secretary appealable to the environmental court."' 0 It

"Consistent with the federal mandates of CWA § 401, the Vermont Water

Pollution Control Permitting Regulations ("VWPCPR"), adopted by Vermont forthe express purpose of implementing delegated CWA programs, set forth specificapplication and procedural requirements governing certification. VWPCPR (Feb.26, 1974; amended Oct. 7, 1991) at Rule 13.11 (included in regulatory addendum);cf 33 U.S.C. § 1341(a)(1) ("Such State... shall establish procedures for publicnotice in the case of all applications for certification by it and, to the extent itdeems appropriate, procedures for public hearings in connection with specificapplications."). These Vermont regulations further underscore that the burden toobtain certification from the State is placed squarely on the applicant for thefederal license in question. Id. at 13.11 (b) ("Application for certification pursuantto section 401 of PL 02-500 or any amendments thereto shall be made to thecommissioner of the department of water resources, agency of environmentalconservation."). To be deemed administratively complete, the certificationapplication must include specific information. Id. Public notice is required forreview of certifications and is only issued once an application is found to becomplete. Id. at 13.11 (b), (referring to, id. § 13.3(c)(1) ("Public notice of every

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is impossible for the State to initiate a water quality certification review proceeding

in the absence of an application from ENVY, let alone act to grant or deny

certification.

The record is devoid of any evidence that ENVY has ever requested a water

quality certification from the State of Vermont with regard to its proposed new

operating license, much less any indication that ENVY has filed a complete

application for certification with the Vermont Agency of Natural Resources.

ENVY's failure to comply with its obligation to request a water quality

certification from Vermont underscores NRC's CWA § 401 violation.

C. NRC Did Not Obtain the Requisite 401 Certification

In derogation of the clear requirements of § 401 (a) ENVY did not submit

any § 401 Certification to NRC. See 33 U.S.C. 1341(a)(1) ("Any applicant for a

federal license... shall provide the licensing or permitting agency a certification

from the State in which the discharge originates."). ENVY's NRC application

materials contain no statement of compliance with § 401. At most, ENVY's

application implies, without affirmatively stating, that either its old certification,

issued with respect to the previous operating license, or its § 402 permit fulfilled its

§ 401 Certification obligations. See Entergy ER, CI:740 at 9-1; id. at 9-3 to 9-5,

Table 9-1 (omitting mandatory § 401 Certification). The record does not reflect

complete application for a [certification] shall be circulated .... ") (Emphasisadded).

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that NRC accepted ENVY's implication as a substitute for actual compliance and

certainly does not contain an affirmative statement from NRC that ENVY had

otherwise demonstrated actual compliance with § 401 on any basis. Furthermore, a

federal agency "has an obligation to determine that the specific certification

'required by [section 401] has been obtained,' and without that certification, [the

agency] lacks authority to issue a license." City of Tacoma, 460 F.3d at 68 (holding

further that CWA § 401 "sets forth constraints" upon a federal licensing agency's

authority to act). The NRC's ministerial obligation to assure that a § 401

Certification is in hand does not include the authority to adjudicate substantive

compliance issues under § 401 or state law, including the state law determinations

of whether water quality standards will be met. CWA § 511 (c)(2)(A) codified at 33

U.S.C. § 1371(c)(2)(A); Calvert Cliffs' Coordinating Comm. v. Atomic Energy

Comm 'n, 449 F.2d 1109, 1124-25 (D.C. Cir. 1971); Entergy Nuclear Vermont

Yankee, LLC, CLI-07-16, 65 N.R.C. 371, 377 (Apr. 11, 2007)("Section 511(c)(2)

of the Act precludes us from either second-guessing the conclusions in NPDES

permits or imposing our own effluent limitations - thermal or otherwise. Indeed,

the CWA's legislative history indicates that Congress, when enacting Section

511(c)(2), specifically intended to deprive the NRC's predecessor agency (the

Atomic Energy Commission) of such authority.") (Footnotes omitted; emphasis in

original).

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Thus, even if ENVY intended to assert contemporaneous compliance with

§ 401 through its vague statements regarding the existence of a prior certification

issued by Vermont officials decades ago or a § 402 NPDES permit, NRC could not

satisfy its § 401 obligation by simply accepting ENVY's naked assertion. City of

Tacoma, 460 F.3d at 68. Rather NRC had a duty to seek "an assertion of

compliance from the relevant state agency" that one or both of ENVY's purported

§ 401 Certification substitutes actually satisfied Vermont's § 401 program

requirements. Id. Moreover, in reviewing ENVY's application for a renewed

license, NRC never received nor sought a copy of the 1970 certification issued by

the now-abolished Vermont Water Resources Board. Nor did NRC ask Vermont

whether the prior certificate ENVY's predecessor obtained in 1970 was the

certification required by § 401 for relicensing. Nor did NRC attempt to ascertain

whether Vermont considered a § 402 permit to be the legal and functional

equivalent of a § 401 Certification, a result not contemplated by the express terms

of the CWA or Vermont law." Nor did NRC assert that it considered either the

1970 certification or the current § 402 permit to fulfill the obligations imposed

upon it by 33 U.S.C. § 1341. Nor did NRC provide a single word of explanation

"The United States Supreme Court has explained that "the two sections [401 and402] are not interchangeable, as they serve different purposes and use differentlanguage to reach them." S.D. Warren, 547 U.S. at 380. Vermont requires aseparate § 401 Certification. 10 V.S.A. § 1004 (related to § 401 Certifications forhydroelectric project). Section 402 permits are issued pursuant to a differentprovision of Vermont Statutes. 10 V.S.A. § 1263.

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for its inaction or disregard of its statutorily required actions. NRC simply ignored

the § 401 Certification requirement altogether, including NRC's ultimate

obligation to refrain from granting a license unless and until it "obtained" the

required § 401 Certification.

In the absence of a § 401 Certification specific to the new license, the CWA

obligated NRC to refrain from granting the new license. 33 U.S.C. § 1341(a)(1)

("No license or permit shall be granted until the certification required by this

section has been obtained or has been waived as provided in the preceding

sentence.").

Notwithstanding NRC's repeated acknowledgments of § 401 's applicability,

even the FSEIS NRC issued as part of this licensing docket does not list a § 401

Certification as one of the required federal permits that ENVY had submitted to

NRC. FSEIS, Vol. 2, Appendix E at Table E-2 (CI:759 at E-3 to E-5). Nor does the

FSEIS reflect any NRC evaluation of ENVY's assertion that it had complied with

all requirements for obtaining federal and state permits. There is no

correspondence identified in which NRC asked Vermont whether ENVY possessed

a valid § 401 Certification or whether the old certification obtained by ENVY's

predecessor or ENVY's § 402 permit qualified as a § 401 Certification under

Vermont law.

25

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On the record before the Court, it is evident that NRC violated its well-

known and self-acknowledged obligations under CWA § 401, thereby violating the

rights of Vermont and NEC to protect water quality in the Connecticut River

through the CWA § 401 process.

II. NRC'S FAILURE TO EXPLAIN ITS BASIS FOR IGNORING § 401(a)AND TO ADDRESS CONCERNS ABOUT THAT FAILURE MAKESITS DECISION ARBITRARY AND CAPRICIOUS

Despite repeated notice from NEC and Vermont, NRC ignored the CWA's

mandate that a new license for Vermont Yankee could not be issued prior to full

compliance with § 401, and acted without providing any rational basis for those

actions.12 "An agency's failure adequately to explain its action renders the action

arbitrary and capricious under § 706(2)(A) of the Administrative Procedure Act."

Public Citizen, Inc. v. Fed. Aviation Administration, 988 F.2d 186, 197 (D.C. Cir.

1993); Kennecott Utah Copper Corp. v. U. S. Dep 't. of Interior, 88 F.3d 1191,

1220 (D.C. Cir. 1996).

In a filing with the ASLB, NEC and Vermont stated as follows:

Any federal license for "any activity. .. which may result in any discharge"requires State water quality certification under the CWA. 33 U.S.C. §1341(a), CWA § 401. A federal agency is barred from issuing a license in

12 As part of its non-Clean Water Act review in this matter, NRC prepared anenvironmental impact statement pursuant to the National Environmental Policy Act("NEPA") and its own regulations (10 C.F.R. Part 51). Its Final SupplementalEnvironmental Impact Statement ("FSEIS") is almost 800 pages long and yet itnever mentions 33 U.S.C. § 1341 or a 401 certification from Vermont. CI:758 and759.

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the absence of a § 401 Certification. 33 U.S.C. § 1341(a). Entergy hasneither applied for, nor received a CWA § 401 Certification. Until andunless that happens, the NRC cannot renew Entergy's license. Id.; S.D.Warren v. State of Maine,...,126 S.Ct. 1843, 1846 (2006); Alabama Riversv. FERC, 325 F.3d 290, 293 (D.C. Cir. 2003). See also In the Matter ofSequoyah Fuels Corp., 38 N.R.C. 304, _, 1993 NRC LEXIS 55 at *40-*46.

NEC's Reply To Entergy And NRC Staff Answers To Petition For Leave To

Intervene, Request For Hearing, and Contentions (June 30, 2006) CI:35 at 3-4."3

Petitioners also raised the fact that ENVY did not have the required § 401

Certification in numerous other filings with NRC. See pp. 6-7 nn.5-7 supra.

Despite these clear articulations of the legal impediment presented by the

lack of the § 401 Certification, the record discloses that NRC has never articulated

any basis of compliance with § 401. Even in the hearing process, neither ENVY

nor NRC responded to the merits of these arguments. Thus, in addition to its own

historical acknowledgment of its § 401 obligations, NRC was alerted at an early

date and consistently in several separate filings that a § 401 Certification was

required before a new license could be issued. NRC did nothing in response. When

The ASLB ultimately ruled that this reference to Section 401 and non-compliance with its requirements was not appropriate for a reply to oppositionsfiled to NEC's Petition to Intervene. See Entergy Nuclear Vermont Yankee, LLCMemorandum And Order (Ruling on Standing, Contentions, Hearing Procedures,State Statutory Claim, and Contention Adoption) LBP-06-20, 64 N.R.C. 131, 182(2006), CI:62. However, the ASLB did not suggest that the concern was not validnor that NRC was in any way excused from responding to that concern as part ofits license renewal process. As noted, supra at p. 9 n.8, NRC has determined thatthe issue of compliance with the requirements of Section 401 is not an issue that isto be resolved in a license renewal hearing or by the ASLB.

27

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NRC issued the draft and FSEIS, and after all matters that were raised with the

ASLB had been resolved, it still had made no mention of § 401 requirements and

no statement of reasons why it was ignoring the provisions of § 401.

Ultimately, the record is entirely devoid of any NRC statement of

compliance with § 401. This "failure adequately to explain its action renders the

action arbitrary and capricious under § 706(2)(A) of the Administrative Procedure

Act," Kennecott Utah Copper Corp., 988 F.2d at 197, and requires reversal of

NRC's decision to grant a new operating license to Vermont Yankee.

CONCLUSION

On the record before this Court, the failure of ENVY and NRC to comply

with their respective, express obligations under § 401 is clear. NRC's final

issuance of the new license for Vermont Yankee without a § 401 Certification, or

any explanation of NRC's purported rationale for compliance with § 401, is

expressly prohibited by the Clean Water Act. NRC's violation has upset the

carefully crafted scheme of cooperative federalism Congress enacted in the CWA

by arrogating power to a federal agency at the expense of Vermont, its citizens,

and similarly-situated states. NRC's action deprives Vermont and its citizens

(including members of NEC) of their rights and ability to protect water quality in

the Connecticut River from the harmful environmental impacts that operation of

Vermont Yankee may cause over the twenty-year life of its new license. By

28

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reversing and remanding the license NRC unlawfully granted to ENVY and

ordering NRC to refrain from issuing the license until it complies with CWA

§ 401, the Court will uphold an important states' right that Congress intended to

preserve through CWA § 401.

Respectfully submitted this 14th day of November 2011 by the undersigned:

/s/ Christopher M. KilianChristopher M. Kilian, Esq./s/ Anthony larrapinoAnthony larrapino, Esq. (on the brief)Conservation Law Foundation15 East State St. #4Montpelier, VT 05602802.223.5992 ph, 802.223.0060 [email protected]@clf.orgPro Bono Counsel for New EnglandCoalition

/s/ Anthony Z. RoismanAnthony Z. Roisman, Esq.National Legal Scholars Law Firm241 Poverty Lane, Unit 1Lebanon, NH 03766603-443-4162 [email protected] for State of VermontDepartment of Public Service

/s/ John BelingJohn Beling, Esq.DirectorDepartment of Public ServicePublic Advocacy Division112 State StreetMontpelier, Vermont 05620-2601(802) [email protected] for State of VermontDepartment of Public Service

29

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CERTIFICATE OF COMPLIANCE WITH APPELLATE RULE 32

This principal brief complies with Federal Rule of Appellate Procedure32(a)(7)(A) because it does not exceed 30 pages, excluding the corporatedisclosure statement, tables, certificates of counsel, and the addendum.

This brief complies with the typeface requirements of Federal Rule of AppellateProcedure 32(a)(5) and 32(a)(6) because it has been prepared in a proportionallyspaced typeface using Microsoft Word 2007 Times Ne wv Roman 14-point font.

Dated this 14th day of November 2011

/s/ Christopher M. Kilian

Christopher M. Kilian, Esq.Conservation Law Foundation15 East State St. #4Montpelier, VT 05602802.223.5992 ph, 802.223.0060 [email protected] Bono Counsel for New England Coalition

30

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CERTIFICATE OF SERVICE

I hereby certify that on November 14, 2011, I electronically filed Petitioners'Brief with the Clerk of the Court using the CM/ECF filing system.

I understand that all participants in this case are registered CM/ECF usersand that service will be accomplished via the CM/ECF system which will sendnotification of such filing to the registered parties listed below in consolidatedCase No's. 11-1168 and 11-1177.

Counsel for Respondents:John Arbab: john.arbab(ausdoi.,govJohn F. Cordes: John. C ordcs(iz.nrc. i ( gvSean Croston: scan.croston(a) nrc.oov

Counsel for Intervenors:David R. Lewis: david.le wis(wpilisburylaw.com

Counsel for Amici Curiae:Christopher Wright: cwrighIit(ii.wwiltshiregrann is.conlTimothy Simeone: tsi meone(ivw i Itsh iregrann is. collMark Davis: mdavis(i;vwiltsliiregranlnis.com

Dated this 14 th day of November 2011

/s/ Christopher M. KilianChristopher M. Kilian, Esq.Conservation Law Foundation15 East State St. #4Montpelier, VT 05602802.223.5992 ph, 802.223.0060 fxckildia n2ttclf.ornPro Bono Counsel for New EnglandCoalition

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ADDENDUM OF STATUTES AND REGULATIONS

28 U .S.C. § 2021 .......................................................................................... A dd. I

28 U .S.C . §2239 ........................................................................................... A dd. 6

28 U .S.C . §2342 ........................................................................................... A dd. 9

33 U .S.C . §1251 ........................................................................................... A dd. 11

33 U .S.C . §1341 ............................................................................................ A dd. 16

33 U .S.C . §1342 ............................................................................................ A dd. 18

33 U .S.C . §1370 ............................................................................................ A dd. 25

10 V .S.A . § 1004 ............................................................................................ A dd. 27

10 V .S.A . §1263 ............................................................................................ A dd. 28

10 C .F.R . § 50.2 ............................................................................................. A dd. 30

10 C.F.R. § 50.54 ...................................... Add. 38

10 C .F.R . § 51.10 ........................................................................................... A dd. 49

10 C .F.R . § 51.45 ........................................................................................... A dd. 51

10 C .F.R . § 51.71 ........................................................................................... A dd. 53

10 C .F.R . § 54.33 ........................................................................................... A dd. 56

Vermont Water Pollution Control Permitting Regulations ............................ Add. 58

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Document #1341639 Filed: 11/14/2011 Page 42 of 140§2021

(Aug. 1, 1946, ch. 724, title I, §273, as added Aug.30, 1954, ch. 1073, §1, 68 Stat. 960; renumberedtitle I, Pub. L. 102-486, title IX, §902(a)(8), Oct.24, 1992, 106 Stat. 2944.)

92021. Cooperation with States

(a) PurposeIt is the purpose of this section-

(1) to recognize the interests of the States inthe peaceful uses of atomic energy, and toclarify the respective responsibilities underthis chapter of the States and the Commissionwith respect to the regulation of byproduct,source, and special nuclear materials;

(2) to recognize the need, and establish pro-grams for, cooperation between the States andthe Commission with respect to control of ra-diation hazards associated with use of suchmaterials;

(3) to promote an orderly regulatory patternbetween the Commission and State govern-ments with respect to nuclear developmentand use and regulation of byproduct, source,and special nuclear materials;

(4) to establish procedures and criteria fordiscontinuance of certain of the Commission'sregulatory responsibilities with respect to by-product, source, and special nuclear materials,and the assumption thereof by the States;

(5) to provide for coordination of the devel-opment of radiation standards for the guid-ance of Federal agencies and cooperation withthe States; and

(6) to recognize that, as the States improvetheir capabilities to regulate effectively suchmaterials, additional legislation may be desir-able.

(b) Agreements with States

Except as provided in subsection (c) of thissection, the Commission is authorized to enterinto agreements with the Governor of any Stateproviding for discontinuance of the regulatoryauthority of the Commission under subchaptersV, VI, and VII of this division, and section 2201of this title, with respect to any one or more ofthe following materials within the State:

(1) Byproduct materials (as defined in sec-tion 2014(e) of this title).

(2) Source materials.(3) Special nuclear materials in quantities

not sufficient to form a critical mass.

During the duration of such an agreement it isrecognized that the State shall have authorityto regulate the materials covered by the agree-ment for the protection of the public health andsafety from radiation hazards.(c) Commission regulation of certain activities

No agreement entered into pursuant to sub-section (b) of this section shall provide for dis-continuance of any authority and the Commis-sion shall retain authority and responsibilitywith respect to regulation of-

(1) the construction and operation of anyproduction or utilization facility or any ura-nium enrichment facility;

(2) the export from or import into the UnitedStates of byproduct, source, or special nuclearmaterial, or of any production or utilizationfacility;

(3) the disposal into the ocean or sea of by-product, source, or special nuclear waste ma-terials as defined in regulations or orders ofthe Commission;

(4) the disposal of such other byproduct,source, or special nuclear material as theCommission determines by regulation or ordershould, because of the hazards or potentialhazards thereof, not be so disposed of withouta license from the Commission.

The Commission shall also retain authorityunder any such agreement to make a determina-tion that all applicable standards and require-mente have been met prior to termination of alicense for byproduct material, as defined in sec-tion 2014(e)(2) of this title. Notwithstanding anyagreement between the Commission and anyState pursuant to subsection (b) of this section,the Commission is authorized by rule, regula-tion, or order to require that the manufacturer,processor, or producer of any equipment, device,commodity, or other product containing source,byproduct, or special nuclear material shall nottransfer possession or control of such productexcept pursuant to a license issued by the Com-mission.(d) Conditions

The Commission shall enter Into an agreementunder subsection (b) of this section with anyState if-

(1) The Governor of that State certifies thatthe State has a program for the control of ra-diation hazards adequate to protect the publichealth and safety with respect to the mate-rials within the State covered by the proposedagreement, and that the State desires to as-sume regulatory responsibility for such mate-rials; and

(2) the Commission finds that the State pro-gram is in accordance with the requirementsof subsection (o) of this section and in allother respects compatible with the Commis-sion's program for the regulation of such ma-terials, and that the State program is ade-quate to protect the public health and safetywith respect to the materials covered by theproposed agreement.

(e) Publication in Federal Register-, comment ofinterested persons

(1) Before any agreement under subsection (b)of this section is signed by the Commission, theterms of the proposed agreement and of pro-posed exemptions pursuant to subsection (f) ofthis section shall be published once each weekfor four consecutive weeks in the Federal Reg-ister; and such opportunity for comment by in-terested persons on the proposed agreement andexemptions shall be allowed as the Commissiondetermines by regulation or order to be appro-priate.

(2) Each proposed agreement shall include theproposed effective date of such proposed agree-ment or exemptions. The agreement and exemp-tions shall be published in the Federal Registerwithin thirty days after signature by the Com-mission and the Governor.(f) Exemptions

The Commission Is authorized and directed, byregulation or order, to grant such exemptions

Add. 1

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Page 14

from the licensing requirements contained Insubchapters V, VI, and VII of this division, andfrom Its regulations applicable to licensees asthe Commission finds necessary or appropriateto carry out any agreement entered into pursu-ant to subsection (b) of this section.

(g) Compatible radiation standards

The Commission is authorized and directed tocooperate with the States in the formulation ofstandards for protection against hazards of radi-ation to assure that State and Commission pro-grams for protection against hazards of radi-ation will be coordinated and compatible.(h) Consultative, advisory, and miscellaneous

functions of Administrator of EnvironmentalProtection Agency

The Administrator of the Environmental Pro-tection Agency shall consult qualified scientistsand experts In radiation matters, including thePresident of the National Academy of Sciences,the Chairman of the National Committee on Ra-diation Protection and Measurement, and quali-fied experts in the field of biology and medicineand In the field of health physics. The SpecialAssistant to the President for Science and Tech-nology, or his designee, is authorized to attendmeetings with, participate in the deliberationsof, and to advise the Administrator. The Admin-istrator shall advise the President with respectto radiation matters, directly or indirectly af-fecting health, including guidance for all Fed-eral agencies in the formulation of radiationstandards and in the establishment and execu-tion of programs of cooperation with States.The Administrator shall also perform such otherfunctions as the President may assign to him byExecutive order.(i) Inspections and other functions; training and

other assistance

The Commission in carrying out its licensingand regulatory responsibilities under this chap-ter is authorized to enter into agreements withany State, or group of States, to perform Inspec-tions or other functions on a cooperative basisas the Commission deems appropriate. The Com-mission is also authorized to provide training,with or without charge, to employees of, andsuch other assistance to, any State or politicalsubdivision thereof or group of States as theCommission deems appropriate. Any such provi-sion or assistance by the Commission shall takeInto account the additional expenses that maybe incurred by a State as a consequence of theState's entering Into an agreement with theCommission pursuant to subsection (b) of thissection.(j) Reserve power to terminate or suspend agree-

ments; emergency situations; State nonactionon causes of danger; authority exercisableonly during emergency and commensuratewith danger

(1) The Commission, upon its own initiativeafter reasonable notice and opportunity forhearing to the State with which an agreementunder subsection (b) of this section has becomeeffective, or upon request of the Governor ofsuch State, may terminate or suspend all or partof its agreement with the State and reassert the

licensing and regulatory authority vested in itunder this chapter, if the Commission finds that(1) such termination or suspension is required toprotect the public health and safety, or (2) theState has not complied with one or more of therequirements of this section. The Commissionshall periodically review such agreements andactions taken by the States under the agree-ments to ensure compliance with the provisionsof this section.

(2) The Commission, upon its own motion orupon request of the Governor of any State, may,after notifying the Governor, temporarily sus-pend all or part of its agreement with the Statewithout notice or hearing if, in the judgment ofthe Commission:

(A) an emergency situation exists with re-spect to any material covered by such anagreement creating danger which requires im-mediate action to protect the health or safetyof persons either within or outside the State,and

(B) the State has failed to take steps nec-essary to contain or eliminate the cause of thedanger within a reasonable time after the situ-ation arose.

A temporary suspension under this paragraphshall remain in effect only for such time as theemergency situation exists and shall authorizethe Commission to exercise its authority only tothe extent necessary to contain or eliminate thedanger.(k) State regulation of activities for certain pur-

posesNothing in this section shall be construed to

affect the authority of any State or local agencyto regulate activities for purposes other thanprotection against radiation hazards.(1) Commission regulated activities; notice of fil-

ing- hearingWith respect to each application for Commis-

sion license authorizing an activity as to whichthe Commission's authority is continued pursu-ant to subsection (c) of this section, the Com-mission shall give prompt notice to the State orStates in which the activity will be conducted ofthe filing of the license application; and shall af-ford reasonable opportunity for State represent-atives to offer evidence, interrogate witnesses,and advise the Commission as to the applicationwithout requiring such representatives to take aposition for or against the granting of the appli-cation.(m) Limitation of agreements and exemptions

No agreement entered into under subsection(b) of this section, and no exemption grantedpursuant to subsection (f) of this section, shallaffect the authority of the Commission undersection 2201(b) or (i) of this title to issue rules,regulations, or orders to protect the common de-fense and security, to protect restricted data orto guard against the loss or diversion of specialnuclear material. For purposes of section 2201(1)of this title, activities covered by exemptionsgranted pursuant to subsection (f) of this sec-tion shall be deemed to constitute activities au-thorized pursuant to this chapter; and specialnuclear material acquired by any person pursu-ant to such an exemption shall be deemed to

Add. 2

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have been acquired pursuant to section 2073 ofthis title.(n) "State" and "agreement" defined

As used in this section, the term "State"means any State, Territory, or possession of theUnited States, the Canal Zone, Puerto Rico, andthe District of Columbia. As used in this sec-tion, the term "agreement" includes anyamendment to any agreement.(o) State compliance requirements: compliance

with section 2113(b) of this title and healthand environmental protection standards;procedures for licenses, rulemaking, and li-cense impact analysis; amendment of agree-ments for transfer of State collected funds;proceedings duplication restriction; alter-native requirements

In the licensing and regulation of byproductmaterial, as defined in section 2014(e)(2) of thistitle, or of any activity which results in the pro-duction of byproduct material as so definedunder an agreement entered Into pursuant tosubsection (b) of this section, a State shall re-quire-

(1) compliance with the requirements of sub-section (b) of section 2113 of this title (respect-ing ownership of byproduct material andland), and

(2) compliance with standards which shall beadopted by the State for the protection of thepublic health, safety, and the environmentfrom hazards associated with such materialwhich are equivalent, to the extent prac-ticable, or more stringent than, standardsadopted and enforced by the Commission forthe same purpose, including requirements andstandards promulgated by the Commission andthe Administrator of the Environmental Pro-tection Agency pursuant to sections 2113, 2114,and 2022 of this title, and

(3) procedures which-(A) in the case of licenses, provide proce-

dures under State law which include-(i) an opportunity, after public notice,

for written comments and a public hear-ing, with a transcript,

(ii) an opportunity for cross examina-tion, and

(iII) a written determination which isbased upon findings included in such deter-mination and upon the evidence presentedduring the public comment period andwhich is subject to judicial review;

(B) in the case of rulemaking, provide anopportunity for public participation throughwritten comments or a public hearing andprovide for judicial review of the rule;

(C) require for each license which has asignificant impact on the human environ-ment a written analysis (which shall beavailable to the public before the commence-ment of any such proceedings) of the impactof such license, including any activities con-ducted pursuant thereto, on the environ-ment, which analysis shall include-

(i) an assessment of the radiological andnonradiological impacts to the publichealth of the activities to be conductedpursuant to such license;

(ii) an assessment of any impact on anywaterway and groundwater resulting fromsuch activities;

(iII) consideration of alternatives, in-cluding alternative sites and engineeringmethods, to the activities to be conductedpursuant to such license; and

(iv) consideration of the long-term im-pacts, including decommissioning, decon-tamination, and reclamation impacts, as-sociated with activities to be conductedpursuant to such license, including themanagement of any byproduct material, asdefined by section 2014(e)(2) of this title;and

(D) prohibit any major construction activ-ity with respect to such material prior tocomplying with the provisions of subpara-graph (C).

If any State under such agreement imposes uponany licensee any requirement for the payment offunds to such State for the reclamation or long-term maintenance and monitoring of such mate-rial, and if transfer to the United States of suchmaterial is required in accordance with section2113(b) of this title, such agreement shall beamended by the Commission to provide thatsuch State shall transfer to the United Statesupon termination of the license issued to suchlicensee the total amount collected by suchState from such licensee for such purpose. Ifsuch payments are required, they must be suffi-cient to ensure compliance with the standardsestablished by the Commission pursuant to sec-tion 2201(x) of this title. No State shall be re-quired under paragraph (3) to conduct proceed-ings concerning any license or regulation whichwould duplicate proceedings conducted by theCommission. In adopting requirements pursuantto paragraph (2) of this subsection with respectto sites at which ores are processed primarilyfor their source material content or which areused for the disposal of byproduct material asdefined in section 2014(e)(2) of this title, theState may adopt alternatives (including, whereappropriate, site-specific alternatives) to the re-quirements adopted and enforced by the Com-mission for the same purpose if, after notice andopportunity for public hearing, the Commissiondetermines that such alternatives will achieve alevel of stabilization and containment of thesites concerned, and a level of protection forpublic health, safety, and the environment fromradiological and nonradiological hazards associ-ated with such sites, which is equivalent to, tothe extent practicable, or more stringent thanthe level which would be achieved by standardsand requirements adopted and enforced by theCommission for the same purpose and any finalstandards promulgated by the Administrator ofthe Environmental Protection Agency in ac-cordance with section 2022 of this title. Such al-ternative State requirements may take into ac-count local or regional conditions, including ge-ology, topography, hydrology and meteorology.

(Aug. 1, 1946, ch. 724, title I, §274, as added Pub.L. 86-373, §1, Sept. 23, 1959, 73 Stat. 688; amended1970 Reorg. Plan No. 3, §§2(a)(7), 6(2), eff. Dec. 2,1970, 35 F.R. 15623, 84 Stat. 2086; Pub. L. 95-604,title II, §204(a)-(e)(l), (f), Nov. 8, 1978, 92 Stat.

Add. 3

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3036-3038; Pub. L. 96-295, title II, §205, June 30,1980, 94 Stat. 787; Pub. L. 97-415, §19(a), Jan. 4,1983, 96 Stat. 2078; renumbered title I and amend-ed Pub. L. 102-486, title IX, §902(a)(6), (8), Oct. 24,1992, 106 Stat. 2944ý Pub. L. 109-58, title VI,§651(e)(2), Aug. 8, 2005, 119 Stat. 807.)

REFERENCES IN TEXTFor definition of Canal Zone, referred to in subsec.

(n), see section 3602(b) of Title 22, Foreign Relationsand Intercourse.

CODIFICATION

In subsec. (h) of this section, provisions for the estab-liehment of a Federal Radiation Council and for thedesignation of Its Chairman and members have beenomitted and the Administrator of the EnvironmentalProtection Agency has been substituted for the Councilas the person charged with the responsibility of carry-ing out the functions of the Council pursuant to Reorg.Plan No. 3 of 1970, §§2(a)(7), 6(2), eff. Dec. 2, 1970, 35 P.R.15623, 84 Stat. 2086, set out in the Appendix to Title 5,Government Organization and Employees, which abol-ished the Federal Radiation Council and transferred itsfunctions to the Administrator of the EnvironmentalProtection Administration.

AMENDMENTS

2005-Subsec. (b). Pub. L. 109-58 substituted "State:"for "State-" in introductory provisions, added pars. (1)to (3), and struck out former pars. (1) to (4) which readas follows:

"(1) byproduct materials as defined in section2014(e)(1) of this title;

"(2) byproduct materials as defined in section2014(e)(2) of this title;

"(3) source materials;"(4) special nuclear materials in quantities not suffi-

cient to form a critical mass."1992-Subsec. (c)(1). Pub. L. 102-486, §902(a)(6), in-

serted before semicolon at end "or any uranium enrich-ment facility".

1983-Subsec. (o). Pub. L. 97-415 inserted provisionsrelating to the adoption of equivalent alternative re-quirements by the States.

1980-Subsec. (j). Pub. L. 98-295 designated existingprovisions as par. (1) and added par. (2).

1978---Subsec. (b). Pub. L. 95-604, 1204(a), inserted inpar. (1) "as defined in section 2014(e)(1) of this title"after "byproduct materials", added par. (2), and redes-ignated former pars. (2) and (3) as (3) and (4), respec-tively.

Subsec. (c). Pub. L. 95-W04, §204(f), required the Com-mission to retain authority under the agreement tomake a determination that all applicable standards andrequirements have been met prior to termination of alicense for byproduct material as defined in section2014(e)(2) of this title.

Subsec. (d)(2). Pub. L. 95-604, §204(b). inserted "in ac-cordance with the requirements of subsection (o) of thissection and in all other respects" before "compatible".

Subsec. (j). Pub. L. 95-604. §204(d), inserted "all orpart of' after "suspend", designated provision requir-ing termination or suspension be necessary to protectthe public health and safety as cl. (1), added cl. (2), andinserted provision requiring the Commission to periodi-cally review the agreements and actions taken by theStates under the agreements to ensure compliance withthe provisions of this section.

Subsec. (n). Pub. L. 95-604, §204(c), inserted definitionof "agreement".

Subsec. (o). Pub. L. 95-004, §204(e)(1), added subsec.(o).

EFFECTIVE DATE OF 1978 AMENDMENT

Section 204(e)(2) of Pub. L. 95-604, as added by Pub. L.96-106, §22(d), Nov. 9, 1979, 93 Stat. 800, provided that:"The provisions of the amendment made by paragraph

(1) of this subsection (which adds a new subsection o. tosection 274 of the Atomic Energy Act of 1954 (this sec-tion]) shall apply only to the maximum extent prac-ticable during the three-year period beginning on thedate of the enactment of this Act (Nov. 8, 1978]."

Amendment by Pub. L. 95-604 effective Nov. 8, 1978,see section 208 of Pub. L. 95-004, set out as a note undersection 2014 of this title.

STATE AUTHORITIES AND AGREEMENTS RESPECTING BY-PRODUCT MATERIAL; ENTRY AND EFFECTIVE DATES OFAGREEMENTS

Section 204(g), (h) of Pub. L. 95-604, as amended byPub. L. 96-106, §22(a), (b), Nov. 9, 1979, 93 Stat. 799; Pub.L. 97-415, §19(b), Jan. 4, 1983, 96 Stat. 2079, providedthat:

"(g) Nothing in any amendment made by this section[amending this section) shall preclude any State fromexercising any other authority as permitted under theAtomic Energy Act of 1954 [this chapter] respecting anybyproduct material, as defined in section 11 e. (2) of theAtomic Energy Act of 1954 (section 2014(e)(2) of thistitle].

"(hXl) During the three-year period beginning on thedate of the enactment of this Act [Nov. 8, 1978], not-withstanding any other provision of this title (See Ef-fective Date of 1978 Amendment note set out under sec-tion 2014 of this title), any State may exercise any au-thority under State law (including authority exercisedpursuant to an agreement entered into pursuant to sec-tion 274 of the Atomic Energy Act of 1954 (this section])respecting (A) byproduct material, as defined in section11 e. (2) of the Atomic Energy Act of 1954 (section2014(e)(2) of this title], or (B) any activity which resultsIn the production of byproduct material as so defined,in the same manner and to the same extent as per-mitted before the date of the enactment of this Act, ex-cept that such State authority shall be exercised in amanner which, to the extent practicable, is consistentwith the requirements of section 274 o. of the AtomicEnergy Act of 1954 (as added by section 204(e) of thisAct) [subsec. (o) of this section]. The Commission shallhave the authority to ensure that such section 274 o. isimplemented by any such State to the extent prac-ticable during the three-year period beginning on thedate of the enactment of this Act. Nothing in this sec-tion shall be construed to preclude the Commission orthe Administrator of the Environmental ProtectionAgency from taking such action under section 275 ofthe Atomic Energy Act of 1954 (section 2022 of thistitle] as may be necessary to implement title I of thisAct [section 7911 et seq. of this title].

"(2) An agreement entered into with any State aspermitted under section 274 of the Atomic Energy Actof 1954 (this section) with respect to byproduct materialas defined in section 11 e. (2) of such Act. (section2014(e)(2) of this title], may be entered into at any timeafter the date of the enactment of this Act (Nov. 8, 1978]but no such agreement may take effect before the datethree years after the date of the enactment of this Act.

"(3) Notwithstanding any other provision of this title(See Effective Date of 1978 Amendment note set outunder section 2014 of this title], where a State assumesor has assumed, pursuant to an agreement entered intounder section 274 b. of the Atomic Energy Act of 1954(subsec. (b) of this section], authority over any activitywhich results In the production of byproduct material,as defined in section 11 e. (2) of such Act [section2014(e)(2) of this title], the Commission shall not, untilthe end of the three-year period beginning on the dateof the enactment of this Act [Nov. 8, 1978], have licens-ing authority over such byproduct material produced Inany activity covered by such agreement, unless theagreement is terminated, suspended, or amended toprovide for such Federal licensing. If, at the end of suchthree-year period, a State has not entered into such anagreement with respect to byproduct material, as de-fined in section 11 e. (2) of the Atomic Energy Act of1954, the Commission shall have authority over suchbyproduct material: Provided, however, That, in the

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case of a State which has exercised any authorityunder State law pursuant to an agreement entered intounder section 274 of the Atomic Energy Act of 1954 [thissection], the State authority over such byproduct ma-terial may be terminated, and the Commission author-ity over such material may be exercised, only aftercompliance by the Commission with the same proce-dures as are applicable in the case of termination ofagreements under section 274j. of the Atomic EnergyAct of 1954 (subsec. (j) of this section]."

FEDERAL COMPLIANCE WITH POLLUTION CONTROLSTANDARDS

For provisions relating to the responsibility of thehead of each Executive agency for compliance with ap-plicable pollution control standards, see Ex. Ord. No.12088, Oct. 13, 1978, 43 F.R. 47707, set out as a note undersection 4321 of this title.

EXECUTIVE ORDER NO. 12192

Ex. Ord. No. 12192, Feb. 12, 1980, 45 F.R. 9727, which es-tablished the State Planning Council on RadioactiveWaste Management and provided for its membership,functions, etc., was revoked by Ex. Ord. No. 12379, §13,Aug. 17, 1982, 47 F.R. 38099, set out as a note under sec-tion 14 of the Federal Advisory Committee Act in theAppendix to Title 5, Government Organization and Em-ployees.

§ 2021a. Storage or disposal facility planning

(a) Any person, agency, or other entity propos-ing to develop a storage or disposal facility, in-cluding a test disposal facility, for high-levelradioactive wastes, non-high-level radioactivewastes including transuranium contaminatedwastes, or irradiated nuclear reactor fuel, shallnotify the Commission as early as possible afterthe commencement of planning for a particularproposed facility. The Commission shall in turnnotify the Governor and the State legislature ofthe State of proposed situs whenever the Com-mission has knowledge of such proposal.

(b) The Commission is authorized and directedto prepare a report on means for improving theopportunities for State participation in theprocess for siting, licensing, and developing nu-clear waste storage or disposal facilities. Suchreport shall include detailed consideration of aprogram to provide grants through the Commis-sion to any State, and the advisability of such aprogram, for the purpose of conducting an inde-pendent State review of any proposal to developa nuclear waste storage or disposal facility iden-tified in subsection (a) of this section withinsuch State. On or before March 1, 1979, the Com-mission shall submit the report to the Congressincluding recommendations for improving theopportunities for State participation togetherwith any necessary legislative proposals.

(Pub. L. 95-601, §14, Nov. 6, 1978, 92 Stat. 2953.)

REFERENCES IN TEXT

Commission, referred to in text, probably means theNuclear Regulatory Commission in view of the factthat this section was enacted as part of the act author-izing appropriations for the Nuclear Regulatory Com-mission for fiscal year 1979.

CODIFICATION

Section was enacted as part of an act authorizing ap-propriations to the Nuclear Regulatory Commission for

fiscal year 1979, and not as part of the Atomic EnergyAct of 1954 which comprises this chapter.

PLAN FOR PERMANENT DISPOSAL OF WASTE FROMATOMIC ENERGY DEFENSE ACrIvITIEs; SUBMISSION OFPLAN TO CONGRESS NOT LATER THAN JUNE 30, 1983

Pub. L. 97-90, title n, §213, Dec. 4, 1981, 95 Stat. 1171,directed President to submit to Committees on ArmedServices of Senate and of House of Representatives notlater than June 30, 1983, a report setting forth his plansfor permanent disposal of high-level and transuranicwastes resulting from atomic energy defense activities,such report to include, but not be limited to, for eachState in which such wastes are stored in interim stor-age facilities on Dec. 4, 1981, specific estimates ofamounts planned for expenditure in each of the nextfive fiscal years to achieve the permanent disposal ofsuch wastes and general estimates of amounts plannedfor expenditure in fiscal years thereafter to achievesuch purpose, and a thorough and detailed programmanagement plan for the disposal of such wastes.

WEST VALLEY DEMONSTRATION PROJECT; RADIOACTIVEWASTE MANAGEMENT; PROJECT ACTIVITIES; PUBLICHEARINGS; REVIEW OF PROJECT AND CONSULTATIONS;AUTHORIZATION OF APPROPRIATIONS; REPORT TO CON-GRESS

Pub. L. 107-M6, title III, Nov. 12, 2001, 115 Stat. 503,provided In part: "That funding for the West ValleyDemonstration Project shall be reduced in subsequentfiscal years to the minimum necessary to maintain theproject in a safe and stable condition, unless, not laterthan September 30, 2002, the Secretary: (1) provideswritten notification to the Committees on Appropria-tions of the House of Representatives and the Senatethat agreement has been reached with the State of NewYork on the final scope of Federal activities at theWest Valley site and on the respective Federal andState cost shares for those activities; (2) submits awritten copy of that agreement to the Committees onAppropriations of the House of Representatives and theSenate; and (3) provides a written certification that theFederal actions proposed in the agreement will be infull compliance with all relevant Federal statutes andare in the best interest of the Federal Government."

Pub. L. 96-3W8, Oct. 1, 1980, 94 Stat. 1347, as amendedby Pub. L. 102-154, title I, Nov. 13, 1991, 105 Stat. 1000,provided that:

"SECTION 1. This Act may be cited as the 'West ValleyDemonstration Project Act'.

"SEC. 2. (a) The Secretary shall carry out, in accord-ance with this Act, a high level radioactive waste man-agement demonstration project at the Western NewYork Service Center In West Valley, New York, for thepurpose of demonstrating solidification techniqueswhich can be used for preparing high level radioactivewaste for disposal. Under the project the Secretaryshall carry out thefollowing activities:

"(1) The Secretary shall solidify, in a form suitablefor transportation and disposal, the high level radio-active, waste at the Center by vitrification or by suchother technology which the Secretary determines tobe the most effective for solidification.

"(2) The Secretary shall develop containers suitablefor the permanent disposal of the high level radio-active waste solidified at the Center.

"(3) The Secretary shall, as soon as feasible, trans-port, in accordance with applicable provisions of law,the waste solidified at the Center to an appropriateFederal repository for permanent disposal.

"(4) The Secretary shall, In accordanoe with appli-cable licensing requirements, dispose of low levelradioactive waste and transuranic waste produced bythe solidification of the high level radioactive wasteunder the project.

"(5) The Secretary shall decontaminate and decom-mission-

"(A) the tanks and other facilities of the Centerin which the high level radioactive waste solidifiedunder the project was stored,

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EXECUTIVE ORDER No. 12129

Ex. Ord. No. 12129, Apr. 5, 1979, 44 F.R. 21001, which es-tablished a Critical Energy Facility Program, was re-voked by Ex. Ord. No. 12553, Feb. 25, 1986, 51 F.R. 7237.

§ 2236, Revocation of licenses

(a) False applications; failure of performance

Any license may be revoked for any materialfalse statement in the application or any state-ment of fact required under section 2232 of thistitle, or because of conditions revealed by suchapplication or statement of fact or any report,record, or inspection or other means whichwould warrant the Commission to refuse togrant a license on an original application, or forfailure to construct or operate a facility in ac-cordance with the terms of the construction per-mit or license or the technical specifications inthe application, or for violation of, or failure toobserve any of the terms and provisions of thischapter or of any regulation of the Commission.

(b) Procedure

The Commission shall follow the provisions ofsection 558(c) of title 5 in revoking any license.(c) Repossession of material

Upon revocation of the license, the Commis-sion may immediately retake possession of allspecial nuclear material held by the licensee. Incases found by the Commission to be of extremeimportance to the national defense and securityor to the health and safety of the public, theCommission may recapture any special nuclearmaterial held by the licensee or m~y enter uponand operate the facility prior to any of the pro-cedures provided under subchapter II of chapter5 and chapter 7 of title 5. Just compensationshall be paid for the use of the facility.

(Aug. 1, 1946, ch. 724, title I, § 186, as added Aug.30, 1954, ch. 1073, §1, 68 Stat. 955; renumberedtitle I, Pub. L. 102-486, title IX, §902(a)(8), Oct.24, 1992, 106 Stat. 2944.)

CODIFICATION

In subsecs. (b) and (c), "section 558(c) of title 5" and"subchapter II of chapter 5 and chapter 7 of title 5"substituted for "section 9(b) of the Administrative Pro-cedure Act [5 U.S.C. 1008(b)]" and "the AdministrationProcedure Act [5 U.S.C. 1001-1011]", respectively, on au-thority of Pub. L. 89-554, §7(b), Sept. 6, 1966, 80 Stat. 631,the first section of which enacted Title 5, GovernmentOrganization and Employees.

§ 2237. Modification of license

The terms and conditions of all licenses shallbe subject to amendment, revision, or modifica-tion, by reason of amendments of this chapter orby reason of rules and regulations issued in ac-cordance with the terms of this chapter.

(Aug. 1, 1946, ch. 724, title I, §187, as added Aug.30, 1954, ch. 1073, §1, 68 Stat. 955; renumberedtitle I, Pub. L. 102-486, title IX, §902(a)(8), Oct.24, 1992, 106 Stat. 2944.)

§ 2238. Continued operation of facilities

Whenever the Commission finds that the pub-lic convenience and necessity or the productionprogram of the Commission requires continuedoperation of a production facility or utilization

facility the license for which has been revokedpursuant to section 2236 of this title, the Com-mission may, after consultation with the appro-priate regulatory agency, State or Federal, hav-ing jurisdiction, order that possession be takenof and such facility be operated for such periodof time as the public convenience and necessityor the production program of the Commissionmay, in the judgment of the Commission, re-quire, or until a license for the operation of thefacility shall become effective. Just compensa-tion shall be paid for the use of the facility.

(Aug. 1, 1946, ch. 724, title I, §188, as added Aug.30, 1954, ch. 1073, §1, 68 Stat. 955; renumberedtitle I, Pub. L. 102-486, title IX, §902(a)(8), Oct.24, 1992, 106 Stat. 2944.)

§ 2239. Hearings and Judicial review

(a)(1)(A) In any proceeding under this chapter,for the granting, suspending, revoking, oramending of any license or construction permit,or application to transfer control, and in anyproceeding for the issuance or modification ofrules and regulations dealing with the activitiesof licensees, and in any proceeding for the pay-ment of compensation, an award or royaltiesunder sections' 2183, 2187, 2236(c) or 2238 of thistitle, the Commission shall grant a hearing uponthe request of any person whose interest may beaffected by the proceeding, and shall admit anysuch person as a party to such proceeding. TheCommission shall hold a hearing after thirtydays' notice and publication once in the FederalRegister, on each application under section 2133or 2134(b) of this title for a construction permitfor a facility, and on any application under sec-tion 2134(c) of this title for a construction per-mit for a testing facility. In cases where such aconstruction permit has been issued followingthe holding of such a hearing, the Commissionmay, in the absence of a request therefor by anyperson whose interest may be affected, issue anoperating license or an amendment to a con-struction permit or an amendment to an operat-ing license without a hearing, but upon thirtydays' notice and publication once in the FederalRegister of its intent to do so. The Commissionmay dispense with such thirty days' notice andpublication with respect to any application foran amendment to a construction permit or anamendment to an operating license upon a de-termination by the Commission that the amend-ment involves no significant hazards consider-ation.

(B)(i) Not less than 180 days before the datescheduled for initial loading of fuel into a plantby a licensee that has been issued a combinedconstruction permit and operating license undersection 2235(b) of this title, the Commissionshall publish in the Federal Register notice ofintended operation. That notice shall providethat any person whose interest may be affectedby operation of the plant, may within 60 days re-quest the Commission to hold a hearing onwhether the facility as constructed complies, oron completion will comply, with the acceptancecriteria of the license.

(ii) A request for hearing under clause (I) shallshow, prima facie, that one or more of the ac-

'So In original. Probably should be "section".

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ceptance criteria in the combined license havenot been, or will not be met, and the specificoperational consequences of nonconformancethat would be contrary to providing reasonableassurance of adequate protection of the publichealth and safety.

(iii) After receiving a request for a hearingunder clause (i), the Commission expeditiouslyshall either deny or grant the request. If the re-quest is granted, the Commission shall deter-mine, after considering petitioners' prima facieshowing and any answers thereto, whether dur-ing a period of interim operation, there will bereasonable assurance of adequate protection ofthe public health and safety. If the Commissiondetermines that there is such reasonable assur-ance, it shall allow operation during an interimperiod under the combined license.

(iv) The Commission, in its discretion, shalldetermine appropriate hearing procedures,whether informal or formal adjudicatory, forany hearing under clause (1), and shall state itsreasons therefor.

(v) The Commission shall, to the maximumpossible extent, render a decision on issuesraised by the hearing request within 180 days ofthe publication of the notice provided by clause(I) or the anticipated date for initial loading offuel into the reactor, whichever is later. Com-mencement of operation under a combined li-cense is not subject to subparagraph (A).

(2)(A) The Commission may issue and makeimmediately effective any amendment to an op-erating license or any amendment to a combinedconstruction and operating license, upon a de-termination by the Commission that suchamendment involves no significant hazards con-sideration, notwithstanding the pendency beforethe Commission of a request for a hearing fromany person. Such amendment may be issued andmade immediately effective in advance of theholding and completion of any required hearing.In determining under this section whether suchamendment involves no significant hazards con-sideration, the Commission shall consult withthe State in which the facility involved is lo-cated. In all other respects such amendmentshall meet the requirements of this chapter.

(B) The Commission shall periodically (but notless frequently than once every thirty days)publish notice of any amendments issued, orproposed to be issued, as provided in subpara-graph (A). Each such notice shall include allamendments issued, or proposed to be issued,since the date of publication of the last suchperiodic notice. Such notice shall, with respectto each amendment or proposed amendment (i)identify the facility involved; and (ii) provide abrief description of such amendment. Nothing inthis subsection shall be construed to delay theeffective date of any amendment.

(C) The Commission shall, during the ninety-day period following the effective date of thisparagraph, promulgate regulations establishing(1) standards for determining whether anyamendment to an operating license or anyamendment to a combined construction and op-erating license involves no significant hazardsconsideration; (1i) criteria for providing or, inemergency situations, dispensing with prior no-tice and reasonable opportunity for public corn-

ment on any such determination, which criteriashall take into account the exigency of the needfor the amendment involved; and (III) proceduresfor consultation on any such determination withthe State in which the facility involved is lo-cated.

(b) The following Commission actions shall besubject to judicial review in the manner pre-scribed in chapter 158 of title 28 and chapter 7 oftitle 5:

(1) Any final order entered in any proceedingof the kind specified in subsection (a) of thissection.

(2) Any final order allowing or prohibiting afacility to begin operating under a combinedconstruction and operating license.

(3) Any final order establishing by regula-tion standards to govern the Department ofEnergy's gaseous diffusion uranium enrich-ment plants, including any such facilitiesleased to a corporation established under theUSEC Privatization Act [42 U.S.C. 2297h etseq.].

(4) Any final determination under section2297f(c) of this title relating to whether thegaseous diffusion plants, including any suchfacilities leased to a corporation establishedunder the USEC Privatization Act [42 U.S.C.229Th et seq.], are in compliance with the Com-mission's standards governing the gaseous dif-fusion plants and all applicable laws.

(Aug. 1, 1946, ch. 724, title I, § 189, as added Aug.30, 1954, ch. 1073, §1, 68 Stat. 955; amended Pub.L. 85-256, §7, Sept. 2, 1957, 71 Stat. 579; Pub. L.87-615, §2, Aug. 29, 1962, 76 Stat. 409; Pub. L.97-415, § 12(a), Jan. 4, 1983, 96 Stat. 2073; renum-bered title I and amended Pub. L. 102-486, titleIX, §902(a)(8), title XXVIII, §§2802, 2804, 2805, Oct.24, 1992, 106 Stat. 2944, 3120, 3121; Pub. L. 104-134,title MI, §3116(c), Apr. 26, 1996, 110 Stat. 1321-349.)

REFERENCES IN TEXT

The effective date of this paragraph, referred to insubsec. (a)(2)(C), probably means the date of enactmentof Pub. L. 97-415, which was approved Jan. 4, 1983.

The USEC Privatization Act, referred to in subsec.(b)(3), (4), is subchapter A (§§3101-3117) of chapter 1 oftitle MI of Pub. L. 104-134, Apr. 26, 1996, 110 Stat.1321-335, which is classified principally to subchapterVIII (§2297h et seq.) of this chapter. For complete clas-sification of this Act to the Code, see Short Title of1996 Amendment note set out under section 2011 of thistitle and Tables.

AMENDMENTS

1996--Subsec. (b). Pub. L. 104-134 amended subsec. (b)generally. Prior to amendment, subsec. (b) read as fol-lows: "Any final order entered in any proceeding of thekind specified in subsection (a) of this section or anyfinal order allowing or prohibiting a facility to beginoperating under a combined construction and operatinglicense shall be subject to judicial review in the man-ner prescribed in the Act of December 29, 1950, asamended (ch. 1189, 64 Stat. 1129). and to the provisionsof section 10 of the Administrative Procedure Act, asamended."

1992-Subsec. (a)(1). Pub. L. 102-486, §2802, designatedexisting provisions as subpar. (A) and added subpar. (B).

Subsec. (a)(2)(A), (C). Pub. L. 102-486, §2804, inserted"or any amendment to a combined construction andoperating license" after "any amendment to an operat-ing license".

Subsec. (b). Pub. L. 102-486, §2805, inserted "or anyfinal order allowing or prohibiting a facility to begin

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operating under a combined construction and operatinglicense" before "shall be subject to judicial review".

1983-Subsec. (a). Pub. L. 97-415 designated existingprovisions as par. (1) and added par. (2).

1962--Subsec. (a). Pub. L. 87-615 substituted "con-struction permit for a facility" and "construction per-mit for a testing facility" for "license for a facility"and "license for a testing facility" respectively, andauthorized the commission in cases where a permit hasbeen issued following a hearing, and in the absence ofa request therefor by anyone whose interest may be af-fected, to issue an operating license or an amendmentto a construction permit or an operating license with-out a hearing upon thirty days' notice and publicationonce in the Federal Register of its intent to do so, andto dispense with such notice and publication with re-spect to any application for an amendment to a con-struction permit or to an operating license upon its de-termination that the amendment Involves no signifi-cant hazards consideration.

1957-Subseo. (a). Pub. L. 85-256 required the Commis-sion to hold a hearing after 30 days notice and publica-tion once in the Federal Register on an application fora license for a facility or a testing facility.

EFFECTIVE DATE OF 1992 AMENDMENT

Subsec. (a)(1)(B) of this section, as added by section2802 of Pub. L. 102-486, applicable to all proceedings in-volving combined license for which application wasfiled after May 8, 1991, see section 2806 of Pub. L.102-486, set out as a note under section 2235 of this title.

AUTHORITY To EFFECTUATE AMENDMENTS TOOPERATINo LICENSES

Section 12(b) of Pub. L. 97-415 provided that: "The au-thority of the Nuclear Regulatory Commission, underthe provisions of the amendment made by subsection(a) [amending this section], to issue and to make imme-diately effective any amendment to an operating li-cense shall take effect upon the promulgation by theCommission of the regulations required in such provi-sions."

REVIEW OF NUCLEAR PROLIFERATION ASSESSMENTSTATEMENTS

No court or regulatory body to have jurisdiction tocompel performance of or to review adequacy of per-formance of any Nuclear Proliferation AssessmentStatement called for by the Atomic Energy Act of 1954[this chapter] or by the Nuclear Non-Proliferation Actof 1978, Pub. L. 95-242, Mar. 10, 1978, 92 Stat. 120, see sec-tion 2160a of this title.

ADMINISTRATIVE ORDERS REVIEW ACT

Court of appeals exclusive jurisdiction respectingfinal orders of Atomic Energy Commission, now theNuclear Regulatory Commission and the Secretary ofEnergy, made reviewable by this section, see section2342 of Title 28, Judiciary and Judicial Procedure.

§ 2240. Licensee incident reports as evidence

No report by any licensee of any incident aris-ing out of or in connection with a licensed activ-ity made pursuant to any requirement of theCommission shall be admitted as evidence inany suit or action for damages growing out ofany matter mentioned in such report.

(Aug. 1, 1946, ch. 724, title I, § 190, as added Pub.L. 87-206, §16, Sept. 6, 1961, 75 Stat. 479; renum-bered title I, Pub. L. 102-486, title IX, §902(a)(8),Oct. 24, 1992, 106 Stat. 2944.)

§2241. Atomic safety and licensing boards; estab-lishment; membership; functions; compensa-tion

(a) Notwithstanding the provisions of sections556(b) and 557(b) of title 5, the Commission is au-

thorized to establish one or more atomic safetyand licensing boards, each comprised of threemembers, one of whom shall be qualified in theconduct of administrative proceedings and twoof whom shall have such technical or otherqualifications as the Commission deems appro-priate to the issues to be decided, to conductsuch hearings as the Commission may direct andmake such intermediate or final decisions as theCommission may authorize with respect to thegranting, suspending, revoking or amending ofany license or authorization under the provi-sions of this chapter, any other provision of law,or any regulation of the Commission issuedthereunder. The Commission may delegate to aboard such other regulatory functions as theCommission deems appropriate. The Commis-sion may appoint a panel of qualified personsfrom which board members may be selected.

(b) Board members may be appointed by theCommission from private life, or designatedfrom the staff of the Commission or other Fed-eral agency. Board members appointed from pri-vate life shall receive a per diem compensationfor each day spent in meetings or conferences,and all members shall receive their necessarytraveling or other expenses while engaged in thework of a board. The provisions of section 2203 ofthis title shall be applicable to board membersappointed from private life.

(Aug. 1, 1946, ch. 724, title I, §191, as added Pub.L. 87-615, § 1, Aug. 29, 1962, 76 Stat. 409; amendedPub. L. 91-560, § 10, Dec. 19, 1970, 84 Stat. 1474; re-numbered title I, Pub. L. 102-486, title IX,§902(a)(8), Oct. 24, 1992, 106 Stat. 2944.)

CODIFICATION

In subsec. (a), "sections 556(b) and 557(b) of title 5"substituted for "sections 7(a) and 8(a) of the Adminis-trative Procedure Act [5 U.S.C. 1006(a), 1007(a)]" on au-thority of Pub. L. 89-554, §7(b), Sept. 6. 196, 80 Stat. 631,the first section of which enacted Title 5, GovernmentOrganization and Employees.

AMENDMENTS

1970-Subsec. (a). Pub. L. 91-580 required that twomembers of the board should have such technical orother qualifications the Commission deems appropriateto the issues to be decided.

§ 2242. Temporary operating license

(a) Fuel loading, testing, and operation at spe-cific power level; petition, affidavit, etc.

In any proceeding upon an application for anoperating license for a utilization facility re-quired to be licensed under section 2133 or2134(b) of this title, in which a hearing is other-wise required pursuant to section 2239(a) of thistitle, the applicant may petition the Commis-sion for a temporary operating license for suchfacility authorizing fuel loading, testing, andoperation at a specific power level to be deter-mined by the Commission, pending final actionby the Commission on the application. The ini-tial petition for a temporary operating licensefor each such facility, and any temporary oper-ating license issued for such facility based uponthe initial petition, shall be limited to powerlevels not to exceed 5 percent of rated full ther-mal power. Following issuance by the Commis-sion of the temporary operating license for each

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suspend orders of Interstate Commerce Commissionwhich are pending when this amendment becomes effec-tive shall not be affected thereby, but shall proceed tofinal disposition under the law existing on the datethey were commenced, see section 10 of Pub. L. 93-584,set out as a note under section 2321 of this title.

TRANSFER OF FUNCTIONS

Atomic Energy Commission abolished and functionstransferred by sections 5814 and 5841 of Title 42, ThePublic Health and Welfare. See, also, Transfer of Func-tions notes set out under those sections.

§2342. Jurisdiction of court of appeals

The court of appeals (other than the UnitedStates Court of Appeals for the Federal Circuit)has exclusive jurisdiction to enjoin, set aside,suspend (in whole or in part), or to determinethe validity of-

(1) all final orders of the Federal Commu-nication Commission made reviewable by sec-tion 402(a) of title 47;

(2) all final orders of the Secretary of Agri-culture made under chapters 9 and 20A of title7, except orders issued under sections 210(e),217a, and 499g(a) of title 7;

(3) all rules, regulations, or final orders of-(A) the Secretary of Transportation issued

pursuant to section 50501, 50502, 56101-56104,or 57109 of title 46 or pursuant to part B orC of subtitle IV, subchapter III of chapter311, chapter 313, or chapter 315 of title 49;and

(B) the Federal Maritime Commission is-sued pursuant to section 305, 41304, 41308, or41309 or chapter 421 or 441 of title 46;

(4) all final orders of the Atomic EnergyCommission made reviewable by section 2239of title 42;

(5) all rules, regulations, or final orders ofthe Surface Transportation Board made re-viewable by section 2321 of this title;

(6) all final orders under section 812 of theFair Housing Act; and

(7) all final agency actions described in sec-tion 20114(c) of title 49.

Jurisdiction is invoked by filing a petition asprovided by section 2344 of this title.

(Added Pub. L. 89-554, § 4(e), Sept. 6, 1966, 80 Stat.622; amended Pub. L. 93-584, §4, Jan. 2, 1975, 88Stat. 1917; Pub. L. 95-454, title II, §206, Oct. 13,1978, 92 Stat. 1144; Pub. L. 96-454, § 8(b)(2), Oct. 15,1980, 94 Stat. 2021; Pub. L. 97-164, title I, § 137,Apr. 2, 1982, 96 Stat. 41; Pub. L. 98-554, title II,§227(a)(4), Oct. 30, 1984, 98 Stat. 2852; Pub. L.99-336, §5(a), June 19, 1986, 100 Stat. 638; Pub. L.100-430, § 11(a), Sept. 13, 1988, 102 Stat. 1635; Pub.L. 102-365, §5(c)(2), Sept. 3, 1992, 106 Stat. 975;Pub. L. 103-272, §5(h), July 5, 1994, 108 Stat. 1375:Pub. L. 104-88, title III, §305(d)(5)-(8), Dec. 29,1995, 109 Stat. 945; Pub. L. 104-287, §6(f)(2), Oct.11, 1996, 110 Stat. 3399; Pub. L. 109-59, title IV,§4125(a), Aug. 10, 2005, 119 Stat. 1738; Pub. L.109-304, §17(f)(3), Oct. 6, 2006, 120 Stat. 1708.)

HISTORICAL AND REVISION NOTES

Revised Statutes andDerivation US$. Code Statutes at Large

..................... 5 U.S.C. 1032. Dec. 29, 1950, ch. 1189. §2, 64Stat. 1129.

Aug. 30. 1954, ch. 1073. §2(b), 58Stat. 961.

The words "have exclusive jurisdiction" are sub-stituted for "shall have exclusive Jurisdiction".

In paragraph (1), the word "by" is substituted for "inaccordance with".

In paragraph (3), the word "now" is omitted as unnec-essary. The word "under" is substituted for "pursuantto the provisions of'. Reference to "Federal MaritimeCommission" is substituted for "Federal MaritimeBoard" on authority of 1961 Reorg. Plan No. 7, eff. Aug.12, 1961, 75 Stat. 840. Reference to the United StatesMaritime Commission is omitted because that Commis-sion was abolished by 1950 Reorg. Plan No. 21, §306, eff.May 24, 1951, 64 Stat. 1277, and any existing rights arepreserved by technical sections 7 and 8.

REFERENCES IN TEXT

Section 812 of the Fair Housing Act, referred to inpar. (6), is classified to section 3612 of Title 42, The Pub-lic Health and Welfare.

AMENDMENTS

2006-Par. (3)(A). Pub. L. 109-304, §17(f)(3)(A), sub-stituted "section 50501, 50502, 56101-56104, or 57109 oftitle 46" for "section 2, 9, 37, or 41 of the Shipping Act,1916 (46 U.S.C. App. 802, 803, 808, 835, 839, and 841a)".

Par. (3)(B). Pub. L. 109-304, §17(f)(3)(B), added subpar.(B) and struck out former subpar. (B) which read as fol-lows:

"(B) the Federal Maritime Commission issued pursu-ant to-

"(i) section 19 of the Merchant Marine Act, 1920 (46U.S.C. App. 876);

"(i) section 14 or 17 of the Shipping Act of 1984 (46U.S.C. App. 1713 or 1716); or

"(iWi) section 2(d) or 3(d) of the Act of November 6,1966 (46 U.S.C. App. 817d(d) or 817e(d);".2005--Par. (3)(A). Pub. L. 109-59 inserted ", subchapter

III of chapter 311, chapter 313, or chapter 315" before"of title 49".

1996-Par. (3)(A). Pub. L. 104-287 amended Pub. L.104-88, §305(d)(6). See 1995 Amendment note below.

1995-Par. (3)(A). Pub. L. 104-88, §305(d)(6), as amendedby Pub. L. 104-287, inserted "or pursuant to part B orC of subtitle IV of title 49" before the semicolon.

Pub. L. 104-88, §305(d)(5), substituted "or 41" for "41,or 43".

Par. (3)(B). Pub. L. 104-88, §305(d)(7), redesignated cls.(i0), (iv), and (v) as (i), (0i), and (ii), respectively, andstruck out former cls. (I) and (iii) which read as follows:

"(I) section 23, 25, or 43 of the Shipping Act, 1916 (46U.S.C. App. 822, 824, or 841a);

"(Wi) section 2, 3, 4, or 5 of the Intercoastal ShippingAct, 1933 (46 U.S.C. App. 844, 845, 845a, or 845b);".

Par. (5). Pub. L. 104-88, §305(d)(8), added par. (5) andstruck out former par. (5) which read as follows: "allrules, regulations, or final orders of the InterstateCommerce Commission made reviewable by section 2321of this title and all final orders of such Commissionmade reviewable under section 119010)(2) of title 49,United States Code;".

1994-Par. (7). Pub. L. 103-272 substituted "section20114(c) of title 49" for "section 202(f) of the FederalRailroad Safety Act of 1970".

1992-Par. (7). Pub. L. 102-365, which directed the ad-dition of par. (7) at end, was executed by adding par. (7)after par. (6) and before concluding provisions, to re-flect the probable intent of Congress.

1988--Par. (6). Pub. L. 100-430 added par. (6).1986-Par. (3). Pub. L. 99-336 amended par. (3) gener-

ally. Prior to amendment, par. (3) read as follows:"such final orders of the Federal Maritime Commissionor the Maritime Administration entered under chapters23 and 23A of title 46 as are subject to Judicial reviewunder section 830 of title 46;".

1984--Par. (5). Pub. L. 98-554 substituted "11901(0)(2)"for "11901(i)(2)".

1982-Pub. L. 97-164 inserted "(other than the UnitedStates Court of Appeals for the Federal Circuit)" after"court of appeals" in provisions preceding par. (1), and

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struck out par. (6) which had given the court of appealsjurisdiction in cases involving all final orders of theMerit Systems Protection Board except as provided forin section 7703(b) of title 5. See section 1295(a)(9) of thistitle.

1980-Par. (5). Pub. L. 96-454 Inserted "and all final or-ders of such Commission made reviewable under sec-tion 11901(1)(2) of title 49, United States Code" after"section 2321 of this title".

1978-Par. (6). Pub. L. 95-454 added par. (6).1975--Par. (5). Pub. L. 93-584 added par. (5).

EFFECTIVE DATE OF 1996 AMENDMENT

Section 6(f) of Pub. L. 104-287 provided that theamendment made by that section is effective Dec. 29,1995.

EFFECTIVE DATE OF 1995 AMENDMENT

Amendment by Pub. L. 104-88 effective Jan. 1, 1996,see section 2 of Pub. L. 104-88, set out as an EffectiveDate note under section 701 of Title 49, Transportation.

EFFECTIVE DATE OF 1988 AMENDMENT

Amendment by Pub. L. 100-430 effective on 180th daybeginning after Sept. 13, 1988, see section 13(a) of Pub.L. 100-430, set out as a note under section 3601 of Title42, The Public Health and Welfare.

EFFECTIVE DATE OF 1986 AMENDMENT

Section 5(b) of Pub. L. 99-336 provided that: "Theamendment made by this section [amending this sec-tion] shall apply with respect to any rule, regulation,or final order described In such amendment which is is-sued on or after the date of the enactment of this Act[June 19, 1986)."

EFFECTIVE DATE OF 1982 AMENDMENT

Amendment by Pub. L. 97-164 effective Oct. 1, 1982,see section 402 of Pub. L. 97-164, set out as a note undersection 171 of this title.

EFFECTIVE DATE OF 1978 AMENDMENT

Amendment by Pub. L. 95-454 effective 90 days afterOct. 13, 1978, see section 907 of Pub. L. 95-454, set out asa note under section 1101 of Title 5, Government Orga-nization and Employees.

EFFECTIVE DATE OF 1975 AMENDMENT

Amendment by Pub. L. 93-584 not applicable to ac-tions commenced on or before last day of first monthbeginning after Jan. 2, 1975, and actions to enjoin orsuspend orders of Interstate Commerce Commissionwhich are pending when this amendment becomes effec-tive shall not be affected thereby, but shall proceed tofilal disposition under the law existing on the datethey were commenced, see section 10 of Pub. L. 93-584,set out as a note under section 2321 of this title.

TRANSFER OF FUNCTIONS

Atomic Energy Commission abolished and functionstransferred by sections 5814 and 5841 of Title 42, ThePublic Health and Welfare. See, also, Transfer of Func-tions notes set out under those sections.

92343. Venue

The venue of a proceeding under this chapteris in the judicial circuit in which the petitionerresides or has its principal office, or in theUnited States Court of Appeals for the Districtof Columbia Circuit.

(Added Pub. L. 89-554, §4(e), Sept. 6, 1966, 80 Stat.622.)

HISTORICAL AND REVISION NOTES

Derivation U.S. Code Revtsed Statutes andI .Statutes at Large

................. 5 U.S.C. 1033. Dec. 29. 1950, oh. 1189, §3, 64Stat. 1130.

The section is reorganized for clarity and concise-ness. The word "is" is substituted for "shall be". Theword "petitioner" is substituted for "party or any ofthe parties filing the petition for review" in view of thedefinition of "petitioner" in section 2341 of this title.

§ 2344. Review of orders; time; notice; contents ofpetition; service

On the entry of a final order reviewable underthis chapter, the agency shall promptly give no-tice thereof by service or publication in accord-ance with its rules. Any party aggrieved by thefinal order may, within 60 days after its entry,file a petition to review the order in the court ofappeals wherein venue lies. The action shall beagainst the United States. The petition shallcontain a concise statement of-

(1) the nature of the proceedings as to whichreview is sought;

(2) the facts on which venue is based;(3) the grounds on which relief is sought; and(4) the relief prayed.

The petitioner shall attach to the petition, asexhibits, copies of the order, report, or decisionof the agency. The clerk shall serve a true copyof the petition on the agency and on the Attor-ney General by registered mail, with request fora return receipt.

(Added Pub. L. 89-554, §4(e), Sept. 6, 1966, 80 Stat.622.)

HISTORICAL AND REVISION NOTES

Derivatlon U.S. Code Revised Statu tes andStatutes at Large

..................... 5 U.S.C. 1034. Dec. 29, 1950, oh. 1189, §4. 64Stat. 1130.

The section Is reorganized, with minor changes inphraseology. The words "as prescribed by section 1033of this title" are omitted as surplusage. The words "ofthe United States" following "Attorney General" areomitted as unnecessary.

§ 2345. Prehearing conference

The court of appeals may hold a prehearingconference or direct a judge of the court to holda prehearing conference.

(Added Pub. L. 89-554, § 4(e), Sept. 6, 1966, 80 Stat.622.)

HISTORICAL AND REVISION NOTES

Derivation Revised Statutes andU.S. Code Statutes at Large

..................... 5 U.S.C. 1035. Dec. 29, 1950, ch. 1189. §5, 64Stat. 1130.

§ 2346. Certification of record on review

Unless the proceeding has been terminated ona motion to dismiss the petition, the agencyshall file in the office of the clerk the record onreview as provided by section 2112 of this title.

(Added Pub. L. 89-554, § 4(e), Sept. 6, 1966, 80 Stat.623.)

HISTORICAL AND REVISION NOTES

Derivation U.S. Code Revised Statutes andS CStatutes at Large

................ 5 U.S.C. 1036. Dec. 29. 1950, ch. 1189, §6, 64Stat. 1130.

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Sec,SUBCHAPTER IV-PERMITS AND LICENSES

1341. Certification.1342. National pollutant discharge elimination sys-

tem.1343. Ocean discharge criteria.1344. Permits for dredged or fill material.1345, Disposal or use of sewage sludge.1346. Coastal recreation water quality monitoring

and notification.SUBCHAPTER V--GENERAL PROVISIONS

1361. Administration.1362. Definitions.1363. Water Pollution Control Advisory Board.1364, Emergency powers.1365. Citizen suits.1366. Appearance.1367. Employee protection.1368. Federal procurement.1369. Administrative procedure and judicial review.1370. State authority.1371. Authority under other laws and regulations.1372. Labor standards.1373. Public health agency coordination.1374. Effluent Standards and Water Quality Infor-

mation Advisory Committee.1375. Reports to Congress; detailed estimates and

comprehensive study on costs; State esti-mates.

1375a. Report on coastal recreation waters.1376. Authorization of appropriations.1377. Indian tribes.

SUBCHAPTER VI-STATE WATER POLLUTIONCONTROL REVOLVING FUNDS

1381. Grants to States for establishment of revolv-Ing funds.

1382. Capitalization grant agreements.1383. Water pollution control revolving loan funds.1384. Allotment of funds.1385. Corrective action.1386. Audits, reports, and fiscal controls; intended

use plan.1387. Authorization of appropriations.

CODIFICATION

The Federal Water Pollution Control Act, comprisingthis chapter, was originally enacted by act June 30,1948, ch. 758, 62 Stat. 1155, and amended by acts July 17,1952, oh. 927, 66 Stat. 755; July 9, 1956, oh. 518, §11, 2, 70Stat. 498-507; June 25, 1959, Pub. L. 86-70, 73 Stat. 141;July 12, 1960, Pub. L. 86-M24, 74 Stat. 411; July 20, 1961,Pub. L. 87-88, 75 Stat. 204; Oct. 2, 1965, Pub. L. 89-234, 79Stat. 903; Nov. 3, 1966. Pub. L. 89-753, 80 Stat. 1246; Apr.3, 1970, Pub. L. 91-224, 84 Stat. 91; Dec. 31, 1970, Pub. L.91-611, 84 Stat. 1818; July 9, 1971, Pub. L. 92-50, 85 Stat.124; Oct. 13, 1971, Pub. L. 92-137, 85 Stat. 379; Mar. 1,1972, Pub. L. 92-240, 86 Stat. 47, and was formerly classi-fied first to section 466 et seq. of this title and later tosection 1151 et seq. of this title. The act is shown here-In, however, as having been added by Pub. L. 92-600without reference to such intervening amendments be-cause of the extensive amendment, reorganization, andexpansion of the act's provisions by Pub. L. 92-500.

SUBCHAPTER I-RESEARCH AND RELATEDPROGRAMS

§1251. Congressional declaration of goals andpolicy

(a) Restoration and maintenance of chemical,physical and biological integrity of Nation'swaters; national goals for achievement of ob-jective

The objective of this chapter is to restore andmaintain the chemical, physical, and biological

integrity of the Nation's waters. In order toachieve this objective it is hereby declared that,consistent with the provisions of this chapter-

(1) it is the national goal that the dischargeof pollutants into the navigable waters beeliminated by 1985;

(2) it is the national goal that wherever at-tainable, an interim goal of water qualitywhich provides for the protection and propaga-tion of fish, shellfish, and wildlife and providesfor recreation in and on the water be achievedby July 1, 1983;

(3) it is the national policy that the dis-charge of toxic pollutants in toxic amounts beprohibited;

(4) it is the national policy that Federal fi-nancial assistance be provided to constructpublicly owned waste treatment works;

(5) it is the national policy that areawidewaste treatment management planning proc-esses be developed and implemented to assureadequate control of sources of pollutants ineach State;

(6) it is the national policy that a major re-search and demonstration effort be made todevelop technology necessary to eliminate thedischarge of pollutants into the navigable wa-ters, waters of the contiguous zone, and theoceans; and

(7) it is the national policy that programsfor the control of nonpoint sources of pollu-tion be developed and implemented in an expe-ditious manner so as to enable the goals ofthis chapter to be met through the control ofboth point and nonpoint sources of pollution.

(b) Congressional recognition, preservation, andprotection of primary responsibilities andrights of States

It is the policy of the Congress to recognize,preserve, and protect the primary responsibil-ities and rights of States to prevent, reduce, andeliminate pollution, to plan the developmentand use (including restoration, preservation, andenhancement) of land and water resources, andto consult with the Administrator in the exer-cise of his authority under this chapter. It is thepolicy of Congress that the States manage theconstruction grant program under this chapterand implement the permit programs under sec-tions 1342 and 1344 of this title. It is further thepolicy of the Congress to support and aid re-search relating to the prevention, reduction, andelimination of pollution and to provide Federaltechnical services and financial aid to State andinterstate agencies and municipalities in con-nection with the prevention, reduction, andelimination of pollution.(c) Congressional policy toward Presidential ac-

tivities with foreign countriesIt is further the policy of Congress that the

President, acting through the Secretary of Stateand such national and international organiza-tions as he determines appropriate, shall takesuch action as may be necessary to insure thatto the fullest extent possible all foreign coun-tries shall take meaningful action for the pre-vention, reduction, and elimination of pollutionin their waters and in international waters andfor the achievement of goals regarding theelimination of discharge of pollutants and the

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improvement of water quality to at least thesame extent as the United States does under itslaws.(d) Administrator of Environmental Protection

Agency to administer chapter

Except as otherwise expressly provided in thischapter, the Administrator of the Environ-mental Protection Agency (hereinafter in thischapter called "Administrator") shall admin-ister this chapter.(e) Public participation in development, revision,

and enforcement of any regulation, etc.

Public participation in the development, revi-sion, and enforcement of any regulation, stand-ard, effluent limitation, plan, or program estab-lished by the Administrator or any State underthis chapter shall be provided for, encouraged,and assisted by the Administrator and theStates. The Administrator, in cooperation withthe States, shall develop and publish regulationsspecifying minimum guidelines for public par-ticipation in such processes.(f) Procedures utilized for implementing chapter

It is the national policy that to the maximumextent possible the procedures utilized for im-plementing this chapter shall encourage thedrastic minimization of paperwork and inter-agency decision procedures, and the best use ofavailable manpower and funds, so as to preventneedless duplication and unnecessary delays atall levels of government.(g) Authority of States over water

It is the policy of Congress that the authorityof each State to allocate quantities of waterwithin its jurisdiction shall not be superseded,abrogated or otherwise impaired by this chap-ter. It is the further policy of Congress thatnothing in this chapter shall be construed to su-persede or abrogate rights to quantities of waterwhich have been established by any State. Fed-eral agencies shall co-operate with State andlocal agencies to develop comprehensive solu-tions to prevent, reduce and eliminate pollutionin concert with programs for managing waterresources.

(June 30, 1948, ch. 758, title I, § 101, as added Pub.L. 92-500, §2, Oct. 18, 1972, 86 Stat. 816; amendedPub. L. 95-217, §§ 5(a), 26(b), Dec. 27, 1977, 91 Stat.1567, 1575; Pub. L. 100-4, title III, §316(b), Feb. 4,1987, 101 Stat. 60.)

AMENDMENTS

1987-Subsec. (a)(7). Pub. L. 100-4 added par. (7),1977-Subsec. (b). Pub. L. 95-217, §26(b), inserted pro-

visions expressing Congressional policy that the Statesmanage the construction grant program under thischapter and implement the permit program under sec-tions 1342 and 1344 of this title,

Subsec. (g). Pub. L. 95-217, 15(a), added subsec. (g).

SHORT TITLE OF 2002 AMENDMENT

Pub. L. 107-303, § l(a), Nov. 27, 2002, 116 Stat. 2355, pro-vided that: "This Act [enacting section 1271a of thistitle, amending sections 1254, 1266, 1268, 1270, 1285, 1290,1324, 1329, 1330, and 1375 of this title, enacting provi-sions set out as notes under this section, section 1254 ofthis title, and section 1113 of Title 31, Money and Fi-nance, and repealing provisions set out as a note undersection 50 of Title 20, Education] may be cited as the'Great Lakes and Lake Champlain Act of 2002'."

* Pub. L. 107-303, title I, §101, Nov. 27, 2002, 116 Stat.2355, provided that: "This title (enacting section 1271aof this title and amending section 1288 of this title]may be cited as the 'Great Lakes Legacy Act of 2002'."

Pub. L. 107-303, title II, §201, Nov. 27, 2002, 116 Stat.2358, provided that: "This title [amending section 1270of this title] may be cited as the 'Daniel Patrick Moy-nihan Lake Champlain Basin Program Act of 2002'."

SHORT TITLE OF 2000 AMENDMENTS

Pub. L. 106-457, title II, §201, Nov. 7, 2000, 114 Stat.1967, provided that: "This title [amending section 126Iof this title and enacting provisions set out as a noteunder section 1267 of this title] may be cited as the'Chesapeake Bay Restoration Act of 2000'."

Pub. L. 106-457. title IV, §401, Nov. 7, 2000, 114 Stat.1973, provided that: "This title [amending section 1269of this title] may be cited as the 'Long Island SoundRestoration Act'."

Pub. L. 106-457, title V, §501, Nov. 7, 2000, 114 Stat.1973, provided that: "This title [enacting section 1273 ofthis title] may be cited as the 'Lake PontchartrainBasin Restoration Act of 2000'."

Pub. L. 106-457, title VI, §601, Nov. 7, 2000, 114 Stat.1975, provided that: "This title [enacting section 1300 ofthis title] may be cited as the 'Alternative WaterSources Act of 2000'."

Pub. L. 106-284, §1, Oct. 10, 2000, 114 Stat. 870, providedthat: "This Act [enacting sections 1346 and 1375a of thistitle and amending sections 1254, 1313, 1314, 1362, and1377 of this title] may be cited as the 'Beaches Environ-mental Assessment and Coastal Health Act of 2000'."

. SHORT TITLE OF 1994 AMENDMENT

Pub. L. 103-431, §1, Oct. 31, 1994, 108 Stat. 4396, pro-vided that: "This Act [amending section 1311 of thistitle] may be cited as the 'Ocean Pollution ReductionAct'."

SHORT TITLE OF 1990 AMENDMENT

Pub. L. 101-596, §1, Nov. 16, 1990, 104 Stat. 3000, pro-vided that: "This Act [enacting sections 1269 and 1270 ofthis title, amending sections 1288, 1324, and 1416 of thistitle, and enacting provisions set out as notes underthis section and section 1270 of this title] may be citedas the 'Great Lakes Critical Programs Act of 1990'."

Pub. L. 101-596, title II, §201, Nov. 16, 1990, 104 Stat.3004, provided that: "This part (probably means title,enacting section 1269 of this title and amending section1416 of this title] may be cited as the 'Long IslandSound Improvement Act of 1990'."

Pub. L. 101-596, title III, §301, Nov. 16, 1990, 104 Stat.3006, provided that: "This title [enacting section 1270 ofthis title, amending section 1324 of this title, and en-acting provisions set out as a note under section 1270 ofthis title] may be cited as the 'Lake Champlain SpecialDesignation Act of 1990'."

SHORT TITLE OF 1988 AMENDMENT

Pub. L. 100-653, title X, §1001, Nov. 14, 1988, 102 Stat.3835, provided that: "This title [amending section 1330of this title and enacting provisions set out as notesunder section 1330 of this title] may be cited as the'Massachusetts Bay Protection Act of 1988'."

SHORT TITLE OF 1987 AMENDMENT

Section l(a) of Pub. L. 100-4 provided that: "This Act[enacting sections 1254a, 1267, 1268, 1281b, 1329, 1330, 1377,1381 to 1387, and 1414a of this title, amending this sec-tion and sections 1254, 1256, 1262, 1281, 1282 to 1285, 1287,1288, 1291, 1311 to 1313, 1314, 1317 to 1322, 1324, 1342, 1344,1345, 1361, 1382, 1365, 1369, 1375, and 1376 of this title, andenacting provisions set out as notes under this section,sections 1284, 1311, 1317, 1319, 1330, 1342, 1345, 1362, 1375,and 1414a of this title, and section 1962d-20 of Title 42,The Public Health and Welfare] may be cited as the'Water Quality Act of 1987'."

SHORT TITLE OF 1981 AMENDMENT

Pub. L. 97-117, §1, Dec. 29, 1981, 95 Stat. 1623, providedthat: "This Act [enacting sections 1298, 1299, and 1313a

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of this title, amending sections 1281 to 1285, 1287, 1291,1292, 1296, 1311. and 1314 of this title, and enacting provi-sions set out as notes under sections 1311 and 1375 ofthis title] may be cited as the 'Municipal WastewaterTreatment Construction Grant Amendments of 1981'.'

SHORT TITLE OF 1977 AMENDMENT

Section 1 of Pub. L. 95-217 provided: "That this Act[enacting sections 1281a, 1294 to 1296, and 1297 of thistitle, amending this section and sections 1252, 1254 to1256, 1259, 1262, 1263, 1281, 1282 to 1288, 1291, 1292, 1311,1314, 1315, 1317 to 1319, 1321 to 1324, 1328, 1341, 1342, 1344,1345, 1362, 1364, 1375, and 1376 of this title, enacting pro-visions set out as notes under this section and sections1284, 1286, 1314, 1321, 1342, 1344, and 1376 of this title, andamending provisions set out as a note under this sec-tion] may be cited as the 'Clean Water Act of 1977'."

SHORT TITLE

Section 1 of Pub. L. 92-500 provided that: "That thisAct [enacting this chapter, amending section 24 of Title12, Banks and Banking, sections 633 and 636 of Title 15,Commerce and Trade, and section 711 of former Title 31,Money and Finance, and enacting provisions set out asnotes under this section and sections 1281 and 1361 ofthis title] may be cited as the 'Federal Water PollutionControl Act Amendments of 1972'."

Section 519, formerly section 518, of Act June 30, 1948,ch. 758, title V, as added Oct. 18, 1972, Pub. L. 92-500, §2,86 Stat. 896, and amended Dec. 27, 1977, Pub. L. 95-217,§2, 91 Stat. 1566, and renumbered §519, Feb. 4, 1987, Pub.L. 100-4, title V, §506, 101 Stat. 76, provided that: "ThisAct [this chapter] may be cited as the 'Federal WaterPollution Control Act' (commonly referred to as theClean Water Act)."

SAVINGS PROVISION

Section 4 of Pub. L. 92-500 provided that:"(a) No suit, action, or other proceeding lawfully

commenced by or against the Administrator or anyother officer or employee of the United States in his of-ficial capacity or in relation to the discharge of his of-ficial duties under the Federal Water Pollution ControlAct as in effect immediately prior to the date of enact-ment of this Act [Oct. 18, 1972] shall abate by reason ofthe taking effect of the amendment made by section 2of this Act [which enacted this chapter]. The courtmay, on its own motion or that of any party made atany time within twelve months after such taking ef-fect, allow the same to be maintained by or against theAdministrator or such officer or employee.

-(b) All rules, regulations, orders, determinations,contracts, certifications, authorizations, delegations,or other actions duly issued, made, or taken by or pur-suant to the Federal Water Pollution Control Act as ineffect immediately prior to the date of enactment ofthis Act [Oct. 18, 1972], and pertaining to any functions,powers, requirements, and duties under the FederalWater Pollution Control Act as in effect immediatelyprior to the date of enactment of this Act [Oct. 18, 1972]shall continue in full force and effect after the date ofenactment of this Act [Oct. 18, 1972] until modified orrescinded in accordance with the Federal Water Pollu-tion Control Act as amended by this Act [this chapter].

"(c) The Federal Water Pollution Control Act as Ineffect immediately prior to the date of enactment ofthis Act [Oct. 18, 1972] shall remain applicable to allgrants made from funds authorized for the fiscal yearending June 30, 1972, and prior fiscal years, includingany increases in the monetary amount of any suchgrant which may be paid from authorizations for fiscalyears beginning after June 30, 1972, except as specifi-cally otherwise provided in section 202 of the FederalWater Pollution Control Act as amended by this Act[section 1282 of this title] and in subsection (c) of sec-tion 3 of this Act."

SEPARABILITY

Section 512 of act June 30, 1948, ch. 758, title V, asadded Oct. 18, 1972, Pub. L. 92-500, §2, 86 Stat. 894, pro-

vided that: "If any provision of this Act [this chapter].or the application of any provision of this Act [thischapter] to any person or circumstance, is held invalid,the application of such provision to other persons orcircumstances, and the remainder of this Act [thischapter], shall not be affected thereby."

NATIONAL SHELLFISH INDICATOR PROGRAM

Pub. L. 102-5W7, title mI, §308, Oct. 29, 1992, 106 Stat.4286; as amended by Pub. L. 105-362, title II, §201(b),Nov. 10, 1998, 112 Stat. 3282, provided that:

"(a) ESTABLISHMENT OF A RESEARCH PROGRAM.-TheSecretary of Commerce, in cooperation with the Sec-retary of Health and Human Services and the Adminis-trator of the Environmental Protection Agency, shallestablish and administer a 5-year national shellfish re-search program (hereafter in this section referred to asthe 'Program') for the purpose of improving existingclassification systems for shellfish growing watersusing the latest technological advancements in micro-biology and epidemiological methods. Within 12 monthsafter the date of enactment of this Act [Oct. 29, 1992],the Secretary of Commerce, in cooperation with the ad-visory committee established under subsection (b) andthe Consortium, shall develop a comprehensive 5-yearplan for the Program which shall at a minimum pro-vide for-

"(1) an environmental assessment of commercialshellfish growing areas in the United States, includ-ing an evaluation of the relationships between indica-tors of fecal contamination and human enteric patho-gens;

"(2) the evaluation of such relationships with re-spect to potential health hazards associated withhuman consumption of shellfish;

"(3) a comparison of the current microbiologicalmethods used for evaluating indicator bacteria andhuman enteric pathogens in shellfish and shellfishgrowing waters with new technological methods de-signed for this purpose;

"(4) the evaluation of current and projected sys-tems for human sewage treatment in eliminating vi-ruses and other human enteric pathogens which accu-mulate in shellfish;

"(5) the design of epidemiological studies to relatemicrobiological data, sanitary survey data, andhuman shellfish consumption data to actual hazardsto health associated with such consumption; and

"(6) recommendations for revising Federal shellfishstandards and improving the capabilities of Federaland State agencies to effectively manage shellfishand ensure the safety of shellfish intended for humanconsumption."(b) ADVISORY CoMMrPrEE.-(-) For the purpose of

providing oversight of the Program on a continuingbasis, an advisory committee (hereafter in this sectionreferred to as the 'Committee') shall be establishedunder a memorandum of understanding between theInterstate Shellfish Sanitation Conference and the Na-tional Marine Fisheries Service.

"(2) The Committee shall-"(A) identify priorities for achieving the purpose of

the Program;"(B) review and recommend approval or disapproval

of Program work plans and plans of operation;"(C) review and comment on all subcontracts and

grants to be awarded under the Program;"(D) receive and review progress reports trom the

Consortium and program subcontractors and grant-ees; and

"(E) provide such other advice on the Program as isappropriate."(3) The Committee shall consist of at least ten mem-

bers and shall include-"(A) three members representing agencies having

authority under State law to regulate the shellfishindustry, of whom one shall represent each of the At-lantic, Pacific, and Gulf of Mexico shellfish growingregions;

"(B) three members representing persons engagedin the shellfish industry in the Atlantic, Pacific, and

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Gulf of Mexico shellfish growing regions (who shall beappointed from among at least six recommendationsby the industry members of the Interstate ShellfishSanitation Conference Executive Board), of whomone shall represent the shellfish industry in each re-gion;

"(C) three members, of whom one shall representeach of the following Federal agencies: the NationalOceanic and Atmospheric Administration, the Envi-ronmental Protection Agency, and the Food and DrugAdministration; and

"(D) one member representing the Shellfish Insti-tute of North America."(4) The Chairman of the Committee shall be selected

from among the Committee members described in para-graph (3)(A).

"(5) The Committee shall establish and maintain asubcommittee of scientific experts to provide advice,assistance, and information relevant to research fundedunder the Program, except that no individual who isawarded, or whose application is being considered for,a grant or subcontract under the Program may serve onsuch subcommittee. The membership of the sub-committee shall, to the extent practicable, be region-ally balanced with experts who have scientific knowl-edge concerning each of the Atlantic, Pacific, and Gulfof Mexico shellfish growing regions. Scientists from theNational Academy of Sciences and appropriate Federalagencies (including the National Oceanic and Atmos-pheric Administration, Food and Drug Administration,Centers for Disease Control, National Institutes ofHealth, Environmental Protection Agency, and Na-tional Science Foundation) shall be considered formembership on the subcommittee.

"(6) Members of the Committee and its scientific sub-committee established under this subsection shall notbe paid for serving on the Committee or subcommittee,but shall receive travel expenses as authorized by sec-tion 5703 of title 5, United States Code.

"(0) CONTRACT WrrH CONSORTIUM.--Within 30 daysafter the date of enactment of this Act [Oct. 29, 1992],the Secretary of Commerce shall seek to enter into acooperative agreement or contract with the Consor-tium under which the Consortium will-

"(1) be the academic administrative organizationand fiscal agent for the Program;

"(2) award and administer such grants and sub-contracts as are approved by the Committee undersubsection (b);

"(3) develop and implement a scientific peer reviewprocess for evaluating grant and subcontractor appli-cations prior to review by the Committee;

"(4) in cooperation with the Secretary of Commerceand the Committee, procure the services of a sci-entific project director;

"(5) develop and submit budgets, progress reports,work plans, and plans of operation for the Program tothe Secretary of Commerce and the Committee; and

"(6) make available to the Committee such staff,information, and assistance as the Committee mayreasonably require to carry out its activities.'(d) AUTHORIZATION OF APPROPRIATIONS.--() Of the

sums authorized under section 4(a) of the National Oce-anic and Atmospheric Administration Marine FisheriesProgram Authorization Act (Public Law 98-210; 97 Stat.1409), there are authorized to be appropriated to theSecretary of Commerce 35,200,000 for each of the fiscalyears 1993 through 1997 for carrying out the Program.Of the amounts appropriated pursuant to this author-ization, not more than 5 percent of such appropriationmay be used for administrative purposes by the Na-tional Oceanic and Atmospheric Administration. Theremaining 95 percent of such appropriation shall beused to meet the administrative and scientific objec-tives of the Program.

"(2) The Interstate Shellfish Sanitation Conferenceshall not administer appropriations authorized underthis section, but may be reimbursed from such appro-priations for its expenses in arranging for travel, meet-ings, workshops, or conferences necessary to carry outthe Program.

"(e) DEFINITIONS.-As used In this section, the term-"(1) 'Consortium' means the Louisiana Universities

Marine Consortium; and"(2) 'shellfish' means any species of oyster, clam, or

mussel that is harvested for human consumption."

LIMITATION ON PAYMENTS

Section 2 of Pub. L. 100-4 provided that: "No pay-ments may be made under this Act [see Short Title of1987 Amendment note above] except to the extent pro-vided in advance in appropriation Acts."

SEAFOOD PROCESSING STUDY; SUBMITTAL OF RESULTSTO CONGRESS NOT LATER THAN JANUARY 1, 1979

Pub. L. 95-217, §74, Dec. 27, 1977, 91 Stat. 1609, providedthat the Administrator of the Environmental Protec-tion Agency conduct a study to examine the geographi-cal, hydrological, and biological characteristics of ma-rine waters to determine the effects of seafood proc-esses which dispose of untreated natural wastes Intosuch waters and to include In this study an examina-tion of technologies which may be used in such proc-esses to facilitate the use of the nutrients in thesewastes or to reduce the discharge of such wastes intothe marine environment and to submit the result ofthis study to Congress not later than Jan. 1, 1979.

STANDARDSFor provisions relating to the responsibility of the

head of each Executive agency for compliance with ap-plicable pollution control standards, see 'Ex. Ord. No.12088, Oct. 13, 1978, 43 F.R. 47707, set out as a note undersection 4321 of Title 42, The Public Health and Welfare.

OVERSIGHT STUDY

Section 5 of Pub. L. 92-500 authorized the ComptrollerGeneral of the United States to conduct a study and re-view of the research, pilot, and demonstration pro-grams related to prevention and control of water pollu-tion conducted, supported, or assisted by any Federalagency pursuant to any Federal law or regulation andassess conflicts between these programs and their co-ordination and efficacy, and to report to Congressthereon by Oct. 1, 1973.

INTERNATIONAL TRADE STUDY

Section 6 of Pub. L. 92-00 provided that:"(a) The Secretary of Commerce, in cooperation with

other interested Federal agencies and with representa-tives of industry and the public, shall undertake imme-diately an investigation and study to determine-

"(1) the extent to which pollution abatement andcontrol programs will be imposed on, or voluntarilyundertaken by, United States manufacturers in thenear future and the probable short- and long-range ef-fects of the costs of such programs (computed to thegreatest extent practicable on an industry-by-indus-try basis) on (A) the production costs of such domes-tic manufacturers, and (B) the market prices of thegoods produced by them;

"(2) the probable extent to which pollution abate-ment and control programs will be implemented inforeign industrial nations in the near future and theextent to which the production costs (computed tothe greatest extent practicable on an industry-by-in-dustry basis) of foreign manufacturers will be af-fected by the costs of such programs;

"(3) the probable competitive advantage which anyarticle manufactured in a foreign nation will likelyhave in relation to a comparable article made in theUnited States if that foreign nation-

"(A) does not require its manufacturers to imple-ment pollution abatement and control programs.

"(B) requires a lesser degree of pollution abate-ment and control in its programs, or

"(C) in any way reimburses or otherwise sub-sidizes its manufacturers for the costs of such pro-gram;"(4) alternative means by which any competitive

advantage accruing to the products of any foreign na-

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tion as a result of any factor described in paragraph(3) may be (A) accurately and quickly determined,and (B) equalized, for example, by the Imposition ofa surcharge or duty, on a foreign product in anamount necessary to compensate for such advantage;and

"(5) the impact, if any, which the imposition of acompensating tariff of other equalizing measure mayhave in encouraging foreign nations to implementpollution and abatement control programs."(b) The Secretary shall make an initial report to the

President and Congress within six months after thedate of enactment of this section (Oct. 18, 1972] of theresults of the study and investigation carried out pur-suant to this section and shall make additional reportsthereafter at such times as he deems appropriate tak-ing into account the development of relevant data, butnot less than once every twelve months."

INTERNATIONAL AGREEMENTS

Section 7 of Pub. L. 92-500 provided that: "The Presi-dent shall undertake to enter into international agree-ment to apply uniform standards of performance forthe control of the discharge and emission of pollutantsfrom new sources, uniform controls over the dischargeand emission of toxic pollutants, and uniform controlsover the discharge of pollutants into the ocean. Forthis purpose the President shall negotiate multilateraltreaties, conventions, resolutions, or other agreements,and formulate, present, or support proposals at theUnited Nations and other appropriate international fo-rums."

NATIONAL POLICIES AND GOAL STUDY

Section 10 of Pub. L. 92-500 directed President tomake a full and complete investigation and study of allnational policies and goals established by law to deter-mine what the relationship should be between thesepolicies and goals, taking into account the resources ofthe Nation, and to report results of his investigationand study together with his recommendations to Con-gress not later than two years after Oct. 18, 1972.

EFFICIENCY STUDY

Section 11 of Pub. L. 92-500 directed President, by uti-lization of the General Accounting Office, to conduct afull and complete investigation and study of ways andmeans of most effectively using all of the various re-sources, facilities, and personnel of the Federal Govern-ment in order to most efficiently carry out the provi-sions of this chapter and to report results of his inves-tigation and study together with his recommendationsto Congress not later than two hundred and seventydays after Oct. 18, 1972.

SEx DISCRIMINATION

Section 13 of Pub. L. 92-500 provided that: "No personin the United States shall on the ground of sex be ex-cluded from participation in, be denied the benefits of,or be subjected to discrimination under any program oractivity receiving Federal assistance under this Act(see Short Title note above] the Federal Water Pollu-tion Control Act (this chapter], or the EnvironmentalFinancing Act (set out as a note under section 1281 ofthis title). This section shall be enforced through agen-cy provisions and rules similar to those already estab-lished, with respect to racial and other discrimination,under title VI of the Civil Rights Act of 1964 (section2000d et seq. of Title 42, The Public Health and Wel-fare]. However, this remedy is not exclusive and willnot prejudice or cut off any other legal remedies avail-able to a discriminatee."

CONTIGUOUS ZONE OF UNITED STATES

For extension of contiguous zone of United States,see Proc. No. 7219, set out as a note under section 1331of Title 43, Public Lands.

PREVENTION, CONTROL, AND ABATEMENT OFENVIRONMENTAL POLLUTION AT FEDERAL FACILITIES

Ex. Ord. No. 12088, Oct. 13, 1978, 43 F.R. 47707, set outas a note under section 4321 of Title 42, The PublicHealth and Welfare, provides for the prevention, con-trol, and abatement of environmental pollution at fed-eral facilities.

EXECUTIVE ORDER NO. 11548

Ex. Ord. No. 11548, July 20, 1970, 35 F.R. 11677, whichrelated to the delegation of Presidential functions, wassuperseded by Ex. Ord. No. 11735, Aug. 3, 1973, 38 F.R.21243, formerly set out as a note under section 1321 ofthis title.

Ex. ORD. NO. 11742. DELEGATION OF FUNCTIONS TO SEC-RETARY OF STATE RESPECTING THE NEGOTIATION OFINTERNATIONAL AGREEMENTS RELATING TO THE EN-HANCEMENT OF THE ENVIRONMENT

Ex. Ord. No. 11742, Oct. 23, 1973, 38 F.R. 29457, pro-vided:

Under and by virtue of the authority vested in me bysection 301 of title 3 of the United States Code and asPresident of the United States, I hereby authorize andempower the Secretary of State, in coordination withthe Council on Environmental Quality, the Environ-mental Protection Agency, and other appropriate Fed-eral agencies, to perform, without the approval, ratifi-cation, or other action of the President, the functionsvested In the President by Section 7 of the FederalWater Pollution Control Act Amendments of 1972 (Pub-lic Law 92-500; 86 Stat. 898) with respect to inter-national agreements relating to the enhancement ofthe environment.

RICHARD NIXON.

DEFINITION OF "ADMINISTRATOR"

Section 1(d) of Pub. L. 100-4 provided that: "For pur-poses of this Act (see Short Title of 1987 Amendmentnote above), the term 'Administrator' means the Ad-ministrator of the Environmental Protection Agency."

§ 1252. Comprehensive programs for water pollu-

tion control

(a) Preparation and development

The Administrator shall, after careful inves-tigation, and in cooperation with other Federalagencies, State water pollution control agen-cies, interstate agencies, and the municipalitiesand industries involved, prepare or develop com-prehensive programs for preventing, reducing, oreliminating the pollution of the navigable wa-ters and ground waters and improving the sani-tary condition of surface and underground wa-ters. In the development of such comprehensiveprograms due regard shall be given to the im-provements which are necessary to conservesuch waters for the protection and propagationof fish and aquatic life and wildlife, recreationalpurposes, and the withdrawal of such waters forpublic water supply, agricultural, industrial,and other purposes. For the purpose of this sec-tion, the Administrator is authorized to makejoint investigations with any such agencies ofthe condition of any waters in any State orStates, and of the discharges of any sewage, in-dustrial wastes, or substance which may ad-versely affect such waters.

(b) Planning for reservoirs; storage for regula-tion of streamflow

(1) In the survey or planning of any reservoirby the Corps of Engineers, Bureau of Reclama-tion, or other Federal agency, consideration

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"(7) while the cleanup of Boston Harbor will con-tribute significantly to improving the overall envi-ronmental quality of Massachusetts Bay, expandedefforts encompassing the entire ecosystem will benecessary to ensure its long-term health;

.(8) the concerted efforts of all levels of Govern-ment, the private sector, and the public at large willbe necessary to protect and enhance the environ-mental integrity of Massachusetts Bay; and

"(9) the designation of Massachusetts Bay as an Es-tuary of National Significance and the developmentof a comprehensive plan for protecting and restoringthe Bay may contribute significantly to its long-termhealth and environmental integrity."(b) PURPOSE.-The purpose of this title is to protect

and enhance the environmental quality of Massachu-setts Bay by providing for its designation as an Estuaryof National Significance and by providing for the prep-aration of a comprehensive restoration plan for theBay."SEC. 1005. FUNDING SOURCES.

• "Within one year of enactment [Nov. 14. 1988], the Ad-ministrator of the United States Environmental Pro-tection Agency and the Governor of Massachusettsshall undertake to identify and make available sourcesof funding to support activities pertaining to Massa-chusetts Bay undertaken pursuant to or authorized bysection 320 of the Clean Water Act [33 U.S.C. 1330], andshall make every effort to coordinate existing research,monitoring or control efforts with such activities."

PURPOSES AND POLICIES OF NATIONAL ESTUARYPROGRAM

Section 317(a) of Pub. L. 100-4 provided that:"(1) FINDINGS.-Congress finds and declares that-

"(A) the Nation's estuaries are of great importancefor fish and wildlife resources and recreation and eco-nomic opportunity;

"(B) maintaining the health and ecological integ-rity of these estuaries is In the national interest;

"(C) increasing coastal population, development,and other direct and indirect uses of these estuariesthreaten their health and ecological integrity;

"(D) long-term planning and management will con-tribute to the continued productivity of these areas,and will maximize their utility to the Nation; and

"(E) better coordination among Federal and Stateprograms affecting estuaries will increase the effec-tiveness and efficiency of the national effort to pro-tect, preserve, and restore these areas."(2) PURPOSES.-The purposes of this section [enact-

ing this section] are to-"(A) identify nationally significant estuaries that

are threatened by pollution, development, or overuse;"(B) promote comprehensive planning for, and con-

servation and management of, nationally significantestuaries;

"(C) encourage the preparation of managementplans for estuaries of national significance; and

"(D) enhance the coordination of estuarine re-search."

SUBCHAPTER IV-PERMITS AND LICENSES

11341. Certification

(a) Compliance with applicable requirements;application; procedures; license suspension

(1) Any applicant for a Federal license or per-mit to conduct any activity including, but notlimited to, the construction or operation of fa-cilities, which may result in any discharge intothe navigable waters, shall provide the licensingor permitting agency a certification from theState in which the discharge originates or willoriginate, or, if appropriate, from the interstatewater pollution control agency having jurisdic-tion over the navigable waters at the point

where the discharge originates or will originate,that any such discharge will comply with theapplicable provisions of sections 1311, 1312, 1313,1316, and 1317 of this title. In the case of anysuch activity for which there is not an applica-ble effluent limitation or other limitation undersections 1311(b) and 1312 of this title, and thereis not an applicable standard under sections 1316and 1317 of this title, the State shall so certify,except that any such certification shall not bedeemed to satisfy section 1371(c) of this title.Such State or interstate agency shall establishprocedures for public notice in the case of all ap-plications for certification by it and, to the ex-tent it deems appropriate, procedures for publichearings in connection with specific applica-tions. In any case where a State or interstateagency has no authority to give such a certifi-cation, such certification shall be from the Ad-ministrator. If the State, interstate agency, orAdministrator, as the case may be, fails or re-fuses to act on a request for certification, withina reasonable period of time (which shall not ex-ceed one year) after receipt of such request, thecertification requirements of this subsectionshall be waived with respect to such Federal ap-plication. No license or permit shall be granteduntil the certification required by this sectionhas been obtained or has been waived as pro-vided in the preceding sentence. No license orpermit shall be granted if certification has beendenied by the State, interstate agency, or theAdministrator, as the case may be.

(2) Upon receipt of such application and cer-tification the licensing or permitting agencyshall immediately notify the Administrator ofsuch application and certification. Wheneversuch a discharge may affect, as determined bythe Administrator, the quality of the waters ofany other State, the Administrator within thir-ty days of the date of notice of application forsuch Federal license or permit shall so notifysuch other State, the licensing or permittingagency, and the applicant. If, within sixty daysafter receipt of such notification, such otherState determines that such discharge will affectthe quality of its waters so as to violate anywater quality requirements in such State, andwithin such sixty-day period notifies the Admin-Istrator and the licensing or permitting agencyin writing of its objection to the issuance ofsuch license or permit and requests a publichearing on such objection, the licensing or per-mitting agency shall hold such a hearing. TheAdministrator shall at such hearing submit hisevaluation and recommendations with respectto any such objection to the licensing or permit-ting agency. Such agency, based upon the rec-ommendations of such State, the Administrator,and upon any additional evidence, if any, pre-sented to the agency at the hearing, shall condi-tion such license or permit in such manner asmay be necessary to insure compliance with ap-plicable water quality requirements. If the im-position of conditions cannot insure such com-pliance such agency shall not issue such licenseor permit.

(3) The certification obtained pursuant toparagraph (1) of this subsection with respect tothe construction of any facility shall fulfill therequirements of this subsection with respect to

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certification in connection with any other Fed-eral license or permit required for the operationof such facility unless, after notice to the cer-tifying State, agency, or Administrator, as thecase may be, which shall be given by the Federalagency to whom application is made for such op-erating license or permit, the State, or if appro-priate, the interstate agency or the Adminis-*trator, notifies such agency within sixty daysafter receipt of such notice that there is nolonger reasonable assurance that there will becompliance with the applicable provisions ofsections 1311, 1312, 1313, 1316, and 1317 of thistitle because of changes since the constructionlicense or permit certification was issued in (A)the construction or operation of the facility, (B)the characteristics of the waters into whichsuch discharge is made, (C) the water qualitycriteria applicable to such waters or (D) applica-ble effluent limitations or other requirements.This paragraph shall be inapplicable in any casewhere the applicant for such operating licenseor permit has failed to provide the certifyingState, or, if appropriate, the interstate agencyor the Administrator, with notice of any pro-posed changes in the construction or operationof the facility with respect to which a construc-tion license or permit has been granted, whichchanges may result in violation of section 1311,1312, 1313, 1316, or 1317 of this title.

(4) Prior to the initial operation of any feder-ally licensed or permitted facility or activitywhich may result in any discharge into the navi-gable waters and with respect to which a certifi-cation has been obtained pursuant to paragraph(1) of this subsection, which facility or activityis not subject to a Federal operating license orpermit, the licensee or permittee shall providean opportunity for such certifying State, or, ifappropriate, the interstate agency or the Ad-ministrator to review the manner in which thefacility or activity shall be operated or con-ducted for the purposes of assuring that applica-ble effluent limitations or other limitations orother applicable water quality requirements willnot be violated. Upon notification by the cer-tifying State, or if appropriate, the interstateagency or the Administrator that the operationof any such federally licensed or permitted facil-ity or activity will violate applicable effluentlimitations or other limitations or other waterquality requirements such Federal agency may,after public hearing, suspend such license or per-mit. If such license or permit is suspended, itshall remain suspended until notification is re-ceived from the certifying State, agency, or Ad-ministrator, as the case may be, that there isreasonable assurance that such facility or activ-ity will not violate the applicable provisions ofsection 1311, 1312, 1313, 1316, or 1317 of this title.

(5) Any Federal license or permit with respectto which a certification has been obtained underparagraph (1) of this subsection may be sus-pended or revoked by the Federal agency issuingsuch license or permit upon the entering of ajudgment under this chapter that such facilityor activity has been operated in violation of theapplicable provisions of section 1311, 1312, 1313,1316, or 1317 of this title.

(6) Except with respect to a permit issuedunder section 1342 of this title, in any case

where actual construction of a facility has beenlawfully commenced prior to April 3, 1970, nocertification shall be required under this sub-section for a license or permit issued after April3, 1970, to operate such facility, except that anysuch license or permit issued without certifi-cation shall terminate April 3, 1973, unless priorto such termination date the person having suchlicense or permit submits to the Federal agencywhich issued such license or permit a certifi-cation and otherwise meets the requirements ofthis section.(b) Compliance with other provisions of law set-

ting applicable water quality requirements

Nothing in this section shall be construed tolimit the authority of any department or agencypursuant to any other provision of law to re-quire compliance with any applicable waterquality requirements. The Administrator shall,upon the request of any Federal department oragency, or State or interstate agency, or appli-cant, provide, for the purpose of this section,any relevant Information on applicable effluentlimitations, or other limitations, standards, reg-ulations, or requirements, or water quality cri-teria, and shall, when requested by any such de-partment or agency or State or interstate agen-cy, or applicant, comment on any methods tocomply with such limitations, standards, regula-tions, requirements, or criteria.(c) Authority of Secretary of the Army to permit

use of spoil disposal areas by Federal 11-censees or permittees

In order to implement the provisions of thissection, the Secretary of the Army, actingthrough the Chief of Engineers, is authorized, ifhe deems it to be in the public interest, to per-mit the use of spoil disposal areas under his ju-risdiction by Federal licensees or permittees,and to make an appropriate charge for such use.Moneys received from such licensees or permit-tees shall be deposited In the Treasury as mis-cellaneous receipts.(d) Limitations and monitoring requirements of

certification

Any certification provided under this sectionshall set forth any effluent limitations andother limitations, and monitoring requirementsnecessary to assure that any applicant for aFederal license or permit will comply with anyapplicable effluent limitations and other limita-tions, under section 1311 or 1312 of this title,standard of performance under section 1316 ofthis title, or prohibition, effluent standard, orpretreatment standard under section 1317 of thistitle, and with any other appropriate require-ment of State law set forth in such certification,and shall become a condition on any Federal li-cense or permit subject to the provisions of thissection.

(June 30, 1948, ch. 758, title IV, §401, as addedPub. L. 92-500, §2, Oct. 18, 1972, 86 Stat. 877;amended Pub. L. 95-217, §§61(b), 64, Dec. 27, 1977,91 Stat. 1598, 1599.)

AMENDMENTS1977-Subsec. (a). Pub. L. 95-217 inserted reference to

section 1313 of this title In pars. (1), (3), (4), and (5),struck out par. (6) which provided that no Federal

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agency be deemed an applicant for purposes of this sub-section, and redesignated par. (7) as (6).

91342. National pollutant discharge eliminationsystem

(a) Permits for discharge of pollutants(1) Except as provided in sections 1328 and 1344

of this title, the Administrator may, after op-portunity for public hearing Issue a permit forthe discharge of any pollutant, or combinationof pollutants, notwithstanding section 1311(a) ofthis title, upon condition that such dischargewill meet either (A) all applicable requirementsunder sections 1311, 1312, 1316, 1317, 1318, and 1343of this title, or (B) prior to the taklng of nec-essary implementing actions relating to all suchrequirements, such conditions as the Adminis-trator determines are necessary to carry out theprovisions of this chapter.

(2) The Administrator shall prescribe condi-tions for such permits to assure compliance withthe requirements of paragraph (1) of this sub-section, including conditions on data and infor-mation collection, reporting, and such other re-quirements as he deems appropriate.

(3) The permit program of the Administratorunder paragraph (1) of this subsection, and per-mits issued thereunder, shall be subject to thesame terms, conditions, and requirements asapply to a State permit program and permits Is-sued thereunder under subsection (b) of this sec-tion.

(4) All permits for discharges into the navi-gable waters issued pursuant to section 407 ofthis title shall be deemed to be permits issuedunder this subchapter, and permits issued underthis subchapter shall be deemed to be permits is-sued under section 407 of this title, and shallcontinue in force and effect for their term unlessrevoked, modified, or suspended In accordancewith the provisions of this chapter.

(5) No permit for a discharge into the navi-gable waters shall be issued under section 407 ofthis title after October 18, 1972. Each applicationfor a permit under section 407 of this title, pend-ing on October 18, 1972, shall be deemed to be anapplication for a permit under this section. TheAdministrator shall authorize a State, which hedetermines has the capability of administering apermit program which will carry out the objec-tives of this chapter to issue permits for dis-charges into the navigable waters within the ju-risdiction of such State. The Administrator mayexercise the authority granted him by the pre-ceding sentence only during the period which be-gins on October 18, 1972, and ends either on theninetieth day after the date of the first promul-gation of guidelines required by section 1314(1)(2)of this title, or the date of approval by the Ad-ministrator of a permit program for such Stateunder subsection (b) of this section, whicheverdate first occurs, and no such authorization to aState shall extend beyond the last day of suchperiod. Each such permit shall be subject tosuch conditions as the Administrator deter-mines are necessary to carry out the provisionsof this chapter. No such permit shall issue if theAdministrator objects to such issuance.(b) State permit programs

At any time after the promulgation of theguidelines required by subsection (1)(2) of sec-

tion 1314 of this title, the Governor of each Statedesiring to administer Its own permit programfor discharges into navigable waters within itsjurisdiction may submit to the Administrator afull and complete description of the program itproposes to establish and administer underState law or under an interstate compact. In ad-dition, such State shall submit a statementfrom the attorney general (or the attorney forthose State water pollution control agencieswhich have Independent legal counsel), or fromthe chief legal officer in the case of an inter-state agency, that the laws of such State, or theinterstate compact, as the case may be, provideadequate authority to carry out the describedprogram. The Administrator shall approve eachsubmitted program unless he determines thatadequate authority does not exist:

(1) To issue permits which-(A) apply, and insure compliance with, any

applicable requirements of sections 1311, 1312,1316, 1317, and 1343 of this title;

(B) are for fixed terms not exceeding fiveyears; and

(C) can be terminated or modified for causeincluding, but not limited to, the following:

(I) violation of any condition of the per-mit;

(hi) obtaining a permit by misrepresenta-tion, or failure to disclose fully all relevantfacts;

(ill) change in any condition that requireseither a temporary or permanent reductionor elimination of the permitted discharge;

(D) control the disposal of pollutants intowells;

(2)(A) To issue permits which apply, and in-sure compliance with, all applicable require-ments of section 1318 of this title; or

(B) To inspect, monitor, enter, and require re-ports to at least the same extent as required insection 1318 of this title;

(3) To insure that the public, and any otherState the waters of which may be affected, re-ceive notice of each application for a permit andto provide an opportunity for public hearing be-fore a ruling on each such application;

(4) To insure that the Administrator receivesnotice of each application (including a copythereof) for a permit;

(5) To insure that any State (other than thepermitting State), whose waters may be affectedby the issuance of a permit may submit writtenrecommendations to the permitting State (andthe Administrator) with respect to any permitapplication and, if any part of such written rec-ommendations are not accepted by the permit-ting State, that the permitting State will notifysuch affected State (and the Administrator) inwriting of its failure to so accept such recom-mendations together with its reasons for sodoing;

(6) To insure that no permit will be Issued if,in the judgment of the Secretary of the Armyacting through the Chief of Engineers, after con-sultation with the Secretary of the departmentin which the Coast Guard is operating, anchor-age and navigation of any of the navigable wa-ters would be substantially impaired thereby;

(7) To abate violations of the permit or thepermit program, including civil and criminal

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penalties and other ways and means of enforce-ment;

(8) To insure that any permit for a dischargefrom a publicly owned treatment works includesconditions to require the identification in termsof character and volume of pollutants of any sig-nificant source introducing pollutants subject topretreatment standards under section 1317(b) ofthis title into such works and a program to as-sure compliance with such pretreatment stand-ards by each such source, in addition to ade-quate notice to the permitting agency of (A)new introductions into such works of pollutantsfrom any source which would be a new source asdefined in section 1316 of this title if such sourcewere discharging pollutants, (B) new introduc-tions of pollutants into such works from asource which would be subject to section 1311 ofthis title if it were discharging such pollutants,or (C) a substantial change in volume or char-acter of pollutants being introduced into suchworks by a source introducing pollutants intosuch works at the time of issuance of the per-mit. Such notice shall include information onthe quality and quantity of effluent to be intro-duced into such treatment works and any antici-pated impact of such change in the quantity orquality of effluent to be discharged from suchpublicly owned treatment works; and

(9) To insure that any industrial user of anypublicly owned treatment works will complywith sections 1284(b), 1317, and 1318 of this title.(c) Suspension of Federal program upon submis-

sion of State program; withdrawal of ap-proval of State program; return of State pro-gram to Administrator

(1) Not later than ninety days after the dateon which a State has submitted a program (orrevision thereof) pursuant to subsection (b) ofthis section, the Administrator shall suspendthe issuance of permits under subsection (a) ofthis section as to those discharges subject tosuch program unless he determines that theState permit program does not meet the re-quirements of subsection (b) of this section ordoes not conform to the guidelines issued undersection 1314(i)(2) of this title. If the Adminis-trator so determines, he shall notify the Stateof any revisions or modifications necessary toconform to such requirements or guidelines.

(2) Any State permit program under this sec-tion shall at all times be in accordance with thissection and guidelines promulgated pursuant tosection 1314(i)(2) of this title.

(3) Whenever the Administrator determinesafter public hearing that a State is not admin-istering a program approved under this sectionin accordance with requirements of this section,he shall so notify the State and, if appropriatecorrective action is not taken within a reason-able time, not to exceed ninety days, the Admin-istrator shall withdraw approval of such pro-gram. The Administrator shall not withdraw ap-proval of any such program unless he shall firsthave notified the State, and made public, inwriting, the reasons for such withdrawal.

(4) LIMITATIONS ON PARTIAL PERMIT PROGRAMRETURNS AND wITHDRAWALS.-A State may re-turn to the Administrator administration, andthe Administrator may withdraw under para-graph (3) of this subsection approval, of-

(A) a State partial permit program approvedunder subsection (n)(3) of this section only ifthe entire permit program being administeredby the State department or agency at the timeis returned or withdrawn; and

(B) a State partial permit program approvedunder subsection (n)(4) of this section only ifan entire phased component of the permit pro-gram being administered by the State at thetime is returned or withdrawn.

(d) Notification of Administrator

(1) Each State shall transmit to the Adminis-trator a copy of each permit application re-ceived by such State and provide notice to theAdministrator of every action related to theconsideration of such permit application, Includ-ing each permit proposed to be issued by suchState.

(2) No permit shall issue (A) if the Adminis-trator within ninety days of the date of his noti-fication under subsection (b)(5) of this sectionobjects in writing to the issuance of such per-mit, or (B) if the Administrator within ninetydays of the date of transmittal of the proposedpermit by the State objects in writing to the is-suance of such permit as being -outside theguidelines and requirements of this chapter.Whenever the Administrator objects to the issu-ance of a permit under this paragraph such writ-ten objection shall contain a statement of thereasons for such objection and the effluent limi-tations and conditions which such permit wouldinclude if it were issued by the Administrator.

(3) The Administrator may, as to any permitapplication, waive paragraph (2) of this sub-section.

(4) In any case where, after December 27, 1977,the Administrator, pursuant to paragraph (2) ofthis subsection, objects to the issuance of a per-mit, on request of the State, a public hearingshall be held by the Administrator on such ob-jection. If the State does not resubmit such per-mit revised to meet such objection within 30days after completion of the hearing, or, if nohearing is requested within 90 days after thedate of such objection, the Administrator mayissue the permit pursuant to subsection (a) ofthis section for such source in accordance withthe guidelines and requirements of this chapter.

(e) Waiver of notification requirement

In accordance with guidelines promulgatedpursuant to subsection (1)(2) of section 1314 ofthis title, the Administrator is authorized towaive the requirements of subsection (d) of thissection at the time he approves a program pur-suant to subsection (b) of this section for anycategory (including any class, type, or size with-in such category) of point sources within theState submitting such program.

(f) Point source categoriesThe Administrator shall promulgate regula-

tions establishing categories of point sourceswhich he determines shall not be subject to therequirements of subsection (d) of this section inany State with a program approved pursuant tosubsection (b) of this section. The Administratormay distinguish among classes, types, and sizeswithin any category of point sources.

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(g) Other regulations for safe transportation,handling, carriage; storage, and stowage ofpollutants

Any permit issued under this section for thedischarge of pollutants into the navigable wa-ters from a vessel or other floating craft shall besubject to any applicable regulations promul-gated by the Secretary of the department inwhich the Coast Guard is operating, establishingspecifications for safe transportation, handling,carriage, storage, and stowage of pollutants.(h) Violation of permit conditions; restriction or

prohibition upon introduction of pollutantby source not previously utilizing treatmentworks

In the event any condition of a permit for dis-charges from a treatment works (as defined insection 1292 of this title) which is publiclyowned is violated, a State with a program ap-proved under subsection (b) of this section orthe Administrator, where no State program isapproved or where the Administrator deter-mines pursuant to section 1319(a) of this titlethat a State with an approved program has notcommenced appropriate enforcement actionwith respect to such permit, may proceed in acourt of competent jurisdiction to restrict orprohibit the introduction of any pollutant intosuch treatment works by a source not utilizingsuch treatment works prior to the finding thatsuch condition was violated.Mi) Federal enforcement not limited

Nothing in this section shall be construed tolimit the authority of the Administrator to takeaction pursuant to section 1319 of this title.(j) Public information

A copy of each permit application and eachpermit issued under this section shall be avail-able to the public. Such permit application orpermit, or portion thereof, shall further beavailable on request for the purpose of reproduc-tion.(k) Compliance with permits

Compliance with a permit issued pursuant tothis section shall be deemed compliance, for pur-poses of sections 1319 and 1365 of this title, withsections 1311, 1312, 1316, 1317, and 1343 of thistitle, except any standard imposed under section1317 of this title for a toxic pollutant injuriousto human health. Until December 31, 1974, in anycase where a permit for discharge has been ap-plied for pursuant to this section, but final ad-ministrative disposition of such application hasnot been made, such discharge shall not be aviolation of (1) section 1311, 1316, or 1342 of thistitle, or (2) section 407 of this title, unless theAdministrator or other plaintiff proves thatfinal administrative disposition of such applica-tion has not been made because of the failure ofthe applicant to furnish information reasonablyrequired or requested in order to process the ap-plication. For the 180-day period beginning onOctober 18, 1972, in the case of any point sourcedischarging any pollutant or combination of pol-lutants immediately prior to such date whichsource Is not subject to section 407 of this title,the discharge by such source shall not be a vio-lation of this chapter if such a source applies for

a permit for discharge pursuant to this sectionwithin such 180-day period.(1) Limitation on permit requirement

(1) Agricultural return flowsThe Administrator shall not require a per-

mit under this section for discharges com-posed entirely of return flows from irrigatedagriculture, nor shall the Administrator di-rectly or indirectly, require any State to re-quire such a permit.(2) Stormwater runoff from oil, gas, and min.

ing operationsThe Administrator shall not require a per-

mit under this section, nor shall the Adminis-trator directly or indirectly require any Stateto require a permit, for discharges of storm-water runoff from mining operations or oil andgas exploration, production, processing, ortreatment operations or transmission facili-ties, composed entirely of flows which arefrom conveyances or systems of conveyances(including but not limited to pipes, conduits,ditches, and channels) used for collecting andconveying precipitation runoff and which arenot contaminated by contact with, or do notcome into contact with, any overburden, rawmaterial, intermediate products, finishedproduct, byproduct, or waste products locatedon the site of such operations.

(m) Additional pretreatment of conventional pol-lutants not required

To the extent a treatment works (as defined insection 1292 of this title) which is publiclyowned is not meeting the requirements of a per-mit issued under this section for such treatmentworks as a result of inadequate design or oper-ation of such treatment works, the Adminis-trator, in issuing a permit under this section,shall not require pretreatment by a person in-troducing conventional pollutants identifiedpursuant to section 1314(a)(4) of this title Intosuch treatment works other than pretreatmentrequired to assure compliance with pre-treatment standards under subsection (b)(8) ofthis section and section 1317(b)(1) of this title.Nothing in this subsection shall affect the Ad-ministrator's authority under sections 1317 and1319 of this title, affect State and local author-ity under sections 1317(b)(4) and 1370 of this title,relieve such treatment works of its obligationsto meet requirements established under thischapter, or otherwise preclude such works frompursuing whatever feasible options axe availableto meet its responsibility to comply with itspermit under this section.(n) Partial permit program

(1) State submissionThe Governor of a State may submit under

subsection (b) of this section a permit programfor a portion of the discharges into the navi-gable waters in such State.(2) Minimum coverage

A partial permit program under this sub-section shall cover, at a minimum, adminis-tration of a major category of the dischargesinto the navigable waters of the State or amajor component of the permit program re-quired by subsection (b) of this section.

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(3) Approval of major category partial permitprograms

The Administrator may approve a partialpermit program covering administration of amajor category of discharges under this sub-section if-

(A) such program represents a completepermit program and covers all of the dis-charges under the jurisdiction of a depart-ment or agency of the State; and

(B) the Administrator determines that thepartial program represents a significant andidentifiable part of the State program re-quired by subsection (b) of this section.

(4) Approval of major component partial per-mit programs

The Administrator may approve under thissubsection a partial and phased permit pro-gram covering administration of a major com-ponent (including discharge categories) of aState permit program required by subsection(b) of this section if-

(A) the Administrator determines that thepartial program represents a significant andidentifiable part of the State program re-quired by subsection (b) of this section; and

(B) the State submits, and the Adminis-trator approves, a plan for the State to as-sume administration by phases of the re-mainder of the State program required bysubsection (b) of this section by a specifieddate not more than 5 years after submissionof the partial program under this subsectionand agrees to make all reasonable efforts toassume such administration by such date.

(o) Anti-backsliding(1) General prohibition

In the case of effluent limitations estab-lished on the basis of subsection (a)(1)(B) ofthis section, a permit may not be renewed, re-issued, or modified on the basis of effluentguidelines promulgated under section 1314(b)of this title subsequent to the original issu-ance of such permit, to contain effluent limi-tations which are less stringent than the com-parable effluent limitations in the previouspermit. In the case of effluent limitations es-tablished on the basis of section 1311(b)(1)(C)or section 1313(d) or (e) of this title, a permitmay not be renewed, reissued, or modified tocontain effluent limitations which are lessstringent than the comparable effluent limita-tions in the previous permit except in compli-ance with section 1313(d)(4) of this title.(2) Exceptions

A permit with respect to which paragraph (1)applies may be renewed, reissued, or modifiedto contain a less stringent effluent limitationapplicable to a pollutant if-

(A) material and substantial alterations oradditions to the permitted facility occurredafter permit issuance which justify the ap-plication of a less stringent effluent limita-tion;

(B)(i) information is available which wasnot available at the time of permit issuance(other than revised regulations, guidance, ortest methods) and which would have justi-

fled the application of a less stringent efflu-ent limitation at the time of permit issu-ance; or

(ii) the Administrator determines thattechnical mistakes or mistaken interpreta-tions of law were made in issuing the permitunder subsection (a)(1)(B) of this section;

(C) a less stringent effluent limitation isnecessary because of events over which thepermittee has no control and for which thereis no reasonably available remedy;

(D) the permittee has received a permitmodification under section 1311(c), 1311(g),1311(h), 1311(i), 1311(k), 1311(n), or 1326(a) ofthis title; or

(E) the permittee has installed the treat-ment facilities required to meet the effluentlimitations in the previous permit and hasproperly operated and maintained the facili-ties but has nevertheless been unable toachieve the previous effluent limitations, inwhich case the limitations in the reviewed,reissued, or modified permit may reflect thelevel of pollutant control actually achieved(but shall not be less stringent than requiredby effluent guidelines in effect at the time ofpermit renewal, reissuance, or modification).

Subparagraph (B) shall not apply to any re-vised waste load allocations or any alternativegrounds for translating water quality stand-ards into effluent limitations, except wherethe cumulative effect of such revised alloca-tions results in a decrease in the amount ofpollutants discharged into the concerned wa-ters, and such revised allocations are not theresult of a discharger eliminating or substan-tially reducing its discharge of pollutants dueto complying with the requirements of thischapter or for reasons otherwise unrelated towater quality.

(3) LimitationsIn no event may a permit with respect to

which paragraph (1) applies be renewed, re-issued, or modified to contain an effluent limi-tation which is less stringent than required byeffluent guidelines in effect at the time thepermit is renewed, reissued, or modified. In noevent may such a permit to discharge into wa-ters be renewed, reissued, or modified to con-tain a less stringent effluent limitation if theimplementation of such limitation would re-sult in a violation of a water quality standardunder section 1313 of this title applicable tosuch waters.

(p) Municipal and industrial stormwater dis-charges

(1) General rulePrior to October 1, 1994, the Administrator

or the State (in the case of a permit programapproved under this section) shall not requirea permit under this section for dischargescomposed entirely of stormwater.

(2) ExceptionsParagraph (1) shall not apply with respect to

the following stormwater discharges:(A) A discharge with respect to which a

permit has been issued under this section be-fore February 4, 1987.

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(B) A discharge associated with industrialactivity.

(C) A discharge from a municipal separatestorm sewer system serving a population of250,000 or more.

(D) A discharge from a municipal separatestorm sewer system serving a population of100,000 or more but less than 250,000.

(E) A discharge for which the Adminis-trator or the State, as the case may be, de-termines that the stormwater discharge con-tributes to a violation of a water qualitystandard or is a significant contributor ofpollutants to waters of the United States.

(3) Permit requirements(A) Industrial discharges

Permits for discharges associated with in-dustrial activity shall meet all applicableprovisions of this section and section 1311 ofthis title.(B) Municipal discharge

Permits for discharges from municipalstorm sewers-

(I) may be issued on a system- or juris-diction-wide basis;

(ii) shall include a requirement to effec-tively prohibit non-stormwater dischargesinto the storm sewers; and

(Ili) shall require controls to reduce thedischarge of pollutants to the maximumextent practicable, including managementpractices, control techniques and system,design and engineering methods, and suchother provisions as the Administrator orthe State determines appropriate for thecontrol of such pollutants.

(4) Permit application requirements(A) Industrial and large municipal dis-

chargesNot later than 2 years after February 4,

1987, the Administrator shall establish regu-lations setting forth the permit applicationrequirements for stormwater discharges de-scribed in paragraphs (2)(B) and (2)(C). Appli-cations for permits for such discharges shallbe filed no later than 3 years after February4, 1987. Not later than 4 years after February4, 1987, the Administrator or the State, asthe case may be, shall issue or deny eachsuch permit. Any such permit shall providefor compliance as expeditiously as prac-ticable, but in no event later than 3 yearsafter the date of issuance of such permit.(B) Other municipal discharges

Not later than 4 years after February 4,1987, the Administrator shall establish regu-lations setting forth the permit applicationrequirements for stormwater discharges de-scribed in paragraph (2)(D). Applications forpermits for such discharges shall be filed nolater than 5 years after February 4, 1987. Notlater than 6 years after February 4, 1987, theAdministrator or the State, as the case maybe, shall issue or deny each such permit. Anysuch permit shall provide for compliance asexpeditiously as practicable, but in no eventlater than 3 years after the date of issuanceof such permit.

(5) StudiesThe Administrator, in consultation with the

States, shall conduct a study for the purposesof-

(A) identifying those stormwater dis-charges or classes of stormwater dischargesfor which permits are not required pursuantto paragraphs (1) and (2) of this subsection;

(B) determining, to the maximum extentpracticable, the nature and extent of pollut-ants in such discharges; and

(C) establishing procedures and methods tocontrol stormwater discharges to the extentnecessary to mitigate impacts on waterquality.

Not later than October 1, 1988, the Adminis-trator shall submit to Congress a report on theresults of the study described in subpara-graphs (A) and (B). Not later than October 1,1989, the Administrator shall submit to Con-gress a report on the results of the study de-scribed in subparagraph (C).(6) Regulations

Not later than October 1, 1993, the Adminis-trator, in consultation with State and local of-ficials, shall issue regulations (based on theresults of the studies conducted under para-graph (5)) which designate stormwater dis-charges, other than those discharges describedin paragraph (2), to be regulated to protectwater quality and shall establish a comprehen-sive program to regulate such designatedsources. The program shall, at a minimum, (A)establish priorities, (B) establish requirementsfor State stormwater management programs,and (C) establish expeditious deadlines. Theprogram may include performance standards,guidelines, guidance, and management prac-tices and treatment requirements, as appro-priate.

(q) Combined sewer overflows(1) Requirement for permits, orders, and de-

creesEach permit, order, or decree issued pursu-

ant to this chapter after December 21, 2000, fora discharge from a municipal combined stormand sanitary sewer shall conform to the Com-bined Sewer Overflow Control Policy signed bythe Administrator on April 11, 1994 (in thissubsection referred to as the "CSO control pol-icy").(2) Water quality and designated use review

guidanceNot later than July 31, 2001, and after pro-

viding notice and opportunity for public com-ment, the Administrator shall issue guidanceto facilitate the conduct of water quality anddesignated use reviews for municipal combinedsewer overflow receiving waters.(3) Report

Not later than September 1, 2001, the Admin-istrator shall transmit to Congress a report onthe progress made by the Environmental Pro-tection Agency, States, and municipalities inimplementing and enforcing the CSO controlpolicy.

(June 30, 1948, ch. 758, title IV, §402, as addedPub. L. 92-500, §2, Oct. 18, 1972, 86 Stat. 880;

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amended Pub. L. 95-217, §§33(c), 50, 54(c)(1), 65, 66,Dec. 27, 1977, 91 Stat. 1577, 1588, 1591, 1599, 1600;Pub. L. 100-4, title IV, §§401-404(a), 404(c), for-merly 404(d), 405, Feb. 4, 1987, 101 Stat. 65-67, 69,renumbered §404(c), Pub. L. 104-66, title II,§2021(e)(2), Dec. 21, 1995, 109 Stat. 727; Pub. L.102-580, title III,§ 364, Oct. 31, 1992, 106 Stat. 4862;Pub. L. 106-554, §l(a)(4) [div. B, title I, §112(a)),Dec. 21, 2000, 114 Stat. 2763, 2763A-224.)

AMENDMENTS

2000-Subsec. (q). Pub. L. 106-554 added subsec. (q).1992-Subsec. (p)(1), (6). Pub. L. 102-580 substituted

"October 1, 1994" for "October 1, 1992" in par. (1) and"October 1, 1993" for "October 1, 1992" in par. (6).

1987-Subsec. (a)(1). Pub. L. 100-4, §404(c), inserted cl.(A) and (B) designations.

Subsec. (c)(1). Pub. L. 100-4, §403(b)(2), substituted "asto those discharges" for "as to those navigable wa-ters".

Subsec. (c)(4). Pub. L. 100-4, §403(b)(1), added par. (4).Subsec. (1). Pub. L. 100-4, §401, inserted "Limitation

on permit requirement" as subsec. heading designatedexisting provisions as par. (1) and inserted par. heading,added par. (2), and aligned pars. (1) and (2).

Subsecs. (m) to (p). Pub. L. 100-4, §§402, 403(a), 404(a),405, added subsecs. (m) to (p).

1977-Subsec. (a)(5). Pub. L. 95-217, §50, substituted"section 1314(i)(2)" for "section 1314(h)(2)".

Subsec. (b). Pub. L. 95-217, §50, substituted in provi-sions preceding par. (1) "subsection (i)(2) of section1314" for "subsection (h)(2) of section 1314".

Subsec. (b)(8). Pub. L. 95-217, §54(c)(1), inserted ref-erence to identification in terms of character and vol-ume of pollutants of any significant source introducingpollutants subject to pretreatment standards undersection 1317(b) of this title into treatment works andprograms to assure compliance with pretreatmentstandards by each source.

Subsec. (c)(1). (2). Pub. L. 95-217, §50, substituted"section 1314(i)(2)" for "section 1314(h)(2)".

Subsec. (d)(2). Pub. L. 95-217, §65(b), Inserted provi-sion requiring that, whenever the Administrator ob-jects to the issuance of a permit under subsec. (d)(2) ofthis section, the written objection contain a statementof the reasons for the objection and the effluent limita-tions and conditions which the permit would include ifit were Issued by the Administrator.

Subsec. (d)(4). Pub. L. 95-217, §65(a), added par. (4).Subsec. (e). Pub. L. 95-217, §50, substituted "sub-

section (1)(2) of section 1314" for "subsection (h)(2) ofsection 1314".

Subsec. (h). Pub. L. 95-217, §66, substituted "where noState program is approved or where the Administratordetermines pursuant to section 1319(a) of this title thata State with an approved program has not commencedappropriate enforcement action with respect to suchpermit," for "where no State program Is approved,".

Subsec. (1). Pub. L. 95-217, §33(c), added subsec. (1).

TRANSFER OF FUNCTIONS

For transfer of authorities, functions, personnel, andassets of the Coast Guard, including the authoritiesand functions of the Secretary of Transportation relat-ing thereto, to the Department of Homeland Security,and for treatment of related references, see sections468(b), 551(d), 552(d), and 557 of Title 6, Domestic Secu-rity, and the Department of Homeland Security Reor-ganization Plan of November 25, 2002, as modified, setout as a note under section 542 of Title 6.

Enforcement functions of Administrator or other offi-cial of the Environmental Protection Agency underthis section relating to compliance with national pol-lutant discharge elimination system permits with re-spect to pre-construction, construction, and Initial op-eration of transportation system for Canadian andAlaskan natural gas were transferred to the Federal In-spector, Office of Federal Inspector for the Alaska Nat-

ural Gas Transportation System, until the first anni-versary of the date of initial operation of the AlaskaNatural Gas Transportation System, see Reorg. PlanNo. 1 of 1979, § 102(a), 203(a), 44 F.R. 33663, 33666, 93 Stat.1373, 1376, effective July 1, 1979, set out in the Appendixto Title 5, Government Organization and Employees.Office of Federal Inspector for the Alaska Natural GasTransportation System abolished and functions and au-thority vested in Inspector transferred to Secretary ofEnergy by section 3012(b) of Pub. L. 102-486, set out asan Abolition of Office of Federal Inspector note undersection 719e of Title 15, Commerce and Trade. Func-tions and authority vested in Secretary of Energy sub-sequently transferred to Federal Coordinator for Alas-ka Natural Gas Transportation Projects by section720d(f) of Title 15.

STORMWATER PERMIT REQUIREMENTS

Pub. L. 102-240, title I, §1068, Dec. 18, 1991, 105 Stat.2007, provided that:

"(a) GENERAL RULE.-Notwithstanding the require-ments of sections 402(p)(2)(B), (C), and (D) of the Fed-eral Water Pollution Control Act [33 U.S.C.1342(p)(2)(B), (C), (D)], permit application deadlines forstormwater discharges associated with Industrial ac-tivities from facilities that are owned or operated by amunicipality shall be established by the Administratorof the Environmental Protection Agency (hereinafterin this section referred to as the 'Administrator') pur-suant to the requirements of this section.

"(b) PERMIT APPLICATIONS.-"(1) INDrVIDUAL APPLICATIONS.-The Administrator

shall require Individual permit applications for dis-charges described in subsection (a) on or before Octo-ber 1, 1992; except that any municipality that has par-ticipated in a timely part I group application for anindustrial activity discharging stormwater that is de-nied such participation in a group application or forwhich a group application is denied shall not be re-quired to submit an individual application until the180th day following the date on which the denial ismade.

"(2) GROUP APPLICATIONS.-WIth respect to groupapplications for permits for discharges described insubsection (a), the Administrator shall require-

"(A) part I applications on or before September30, 1991, except that any municipality with a popu-lation of less than 250,000 shall not be required tosubmit a part I application before May 18, 1992; and

"(B) part II applications on or before October 1,1992, except that any municipality with a popu-lation of less than 250,000 shall not be required tosubmit a part II application before May 17, 1993.

"(C) MUNICIPALITIES WITH LESS THAN 100,000 POPU-LATION.-The Administrator shall not require any mu-nicipality with a population of less than 100,000 toapply for or obtain a permit for any stormwater dis-charge associated with an industrial activity otherthan an airport, powerplant, or uncontrolled sanitarylandfill owned or operated by such municipality beforeOctober 1, 1992, unless such permit is required by sec-tion 402(p)(2)(A) or (E) of the Federal Water PollutionControl Act [33 U.S.C. 1342(p)(2)(A), (E)J.

"(d) UNCONTROLLED SANITARY LANDFILL DEFINED.-For the purposes of this section, the term 'uncontrolledsanitary landfill' means a landfill or open dump,whether in operation or closed, that does not meet therequirements for run-on and run-off controls estab-lished pursuant to subtitle D of the Solid Waste Dis-posal Act (42 U.S.C. 6941 et seq.).

"(e) LIMITATION ON STATUTORY CONSTRUCTION.-Noth-ing in this section shall be construed to affect any ap-plication or permit requirement, including any dead-line, to apply for or obtain a permit for stormwater dis-charges subject to section 402(pX2)(A) or (E) of the Fed-eral Water Pollution Control Act (33 U.S.C.1342(p)(2)(A), (E)M.

"(f) REGULATIONS.-The Administrator shall issuefinal regulations with respect to general permits forstormwater discharges associated with industrial activ-ity on or before February 1, 1992."

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PHOSPHATE FERTILIZER EFFLUENT LIMITATION

Section 306(c) of Pub. L. 100-4 provided that:"(1) ISSUANCE OF PERMIT.-As soon as possible after

the date of the enactment of this Act [Feb. 4, 1987], butnot later than 180 days after such date of enactment,the Administrator shall issue permits under section402(a)(1)(B) of the Federal Water Pollution Control Act[33 U.S.C. 1342(a)(1)(B)J with respect to facilities-

"(A) which were under construction on or beforeApril 8, 1974, and

"(B) for which the Administrator is proposing to re-vise the applicability of the effluent limitation estab-lished under section 301(b) of such Act [33 U.S.C.1311(b)] for phosphate subcategory of the fertilizermanufacturing point source category to exclude suchfacilities.'(2) LIMITATIONS ON STATUTORY CONSTRUcTION.-Noth-

ing in this section [amending section 1311 of this titleand enacting this note] shall be construed-

"(A) to require the Administrator to permit the dis-charge of gypsum or gypsum waste into the navigablewaters,

"(B) to affect the procedures and standards applica-ble to the Administrator in issuing permits undersection 402(a)(1)(B) of the Federal Water PollutionControl Act [33 U.S.C. 1342(a)(1)(B)], and

"(C) to affect the authority of any State to deny orcondition certification under section 401 of such Act[33 U.S.C. 1341] with respect to the Issuance of per-mits under section 402(a)(1)(B) of such Act."

LOG TRANSFER FACILITIES

Section 407 of Pub. L. 100-4 provided that:"(a) AGREEMENT,-The Administrator and Secretary

of the Army shall enter into an agreement regardingcoordination of permitting for log transfer facilities todesignate a lead agency and to process permits requiredunder sections 402 and 404 of the Federal Water Pollu-tion Control Act [33 U.S.C. 1342, 1344], where both suchsections apply, for discharges associated with the con-struction and operation of log transfer facilities. TheAdministrator and Secretary are authorized to act inaccordance with the terms of such agreement to assurethat, to the maximum extent practicable, duplication,needless paperwork and delay In the issuance of per-mits, and inequitable enforcement between and amongfacilities in different States, shall be eliminated.

"(b) APPLICATIONS AND PERMITS BEFORE OCTOBER 22,1985.-Where both of sections 402 and 404 of the FederalWater Pollution Control Act [33 U.S.C. 1342, 1344] apply,log transfer facilities which have received a permitunder section 404 of such Act before October 22, 1985,shall not be required to submit a new application for apermit under section 402 of such Act. If the Adminis-trator determines that the terms of a permit issued onor before October 22, 1985, under section 404 of such Actsatisfies the applicable requirements of sections 301,302, 306, 307, 308, and 403 of such Act (33 U.S.C. 1311, 1312,1316, 1317, 1318, and 1343], a separate application for apermit under section 402 of such Act shall not there-after be required. In any case where the Administratordemonstrates, after an opportunity for a hearing, thatthe terms of a permit issued on or before October 22,1985, under section 404 of such Act do not satisfy the ap-plicable requirements of sections 301, 302, 306, 307, 308,and 403 of such Act, modifications to the existing per-mit under section 404 of such Act to incorporate suchapplicable requirements shall be Issued by the Adminis-trator as an alternative to issuance of a separate newpermit under section 402 of such Act.

"(c) LOa TRANSFER FACILITY DEFINED.-For the pur-poses of this section, the term 'log transfer facility'means a facility which Is constructed In whole or Inpart in waters of the United States and which Is uti-lized for the purpose of transferring commercially har-

vested logs to or from a vessel or log raft, including theformation of a log raft."

ALLOWABLE DELAY IN MODIFYING EXISTING APPROVEDSTATE PERMIT PROGRAMS TO CONFORM TO 1977AMENDMENT

Section 54(c)(2) of Pub. L. 95-217 provided that anyState permit program approved under this section be-fore Dec. 27, 1977, which required modification to con-form to the amendment made by section 54(c)(1) of Pub.L. 95-217, which amended subsec. (b)(8) of this section,not be required to be modified before the end of the oneyear period which began on Dec. 27, 1977, unless in orderto make the required modification a State must amendor enact a law in which case such modification not berequired for such State before the end of the two yearperiod which began on Dec. 27, 1977.

§ 1343. Ocean discharge criteria

(a) Issuance of permits

No permit under section 1342 of this title for adischarge into the territorial sea, the waters ofthe contiguous zone, or the oceans shall be is-sued, after promulgation of guidelines estab-lished under subsection (c) of this section, ex-cept in compliance with such guidelines. Priorto the promulgation of such guidelines, a permitmay be issued under such section 1342 of thistitle if the Administrator determines it to be inthe public interest.(b) Waiver

The requirements of subsection (d) of section1342 of this title may not be waived in the caseof permits for discharges into the territorial sea.(c) Guidelines for determining degradation of

waters(1) The Administrator shall, within one hun-

dred and eighty days after October 18, 1972 (andfrom time to time thereafter), promulgateguidelines for determining the degradation ofthe waters of the territorial seas, the contiguouszone, and the oceans, which shall include:

(A) the effect of disposal of pollutants onhuman health or welfare, including but notlimited to plankton, fish, shellfish, wildlife,shorelines, and beaches;

(B) the effect of disposal of pollutants onmarine life including the transfer, concentra-tion, and dispersal of pollutants or their by-products through biological, physical, andchemical processes; changes in marine eco-system diversity, productivity, and stability;and species and community populationchanges;

(C) the effect of disposal, of pollutants on es-thetic, recreation, and economic values;

(D) the persistence and permanence of theeffects of disposal of pollutants;

(E) the effect of the disposal of varyingrates, of particular volumes and concentra-tions of pollutants;

(F) other possible locations and methods ofdisposal or recycling of pollutants includingland-based alternatives; and

(G) the effect on alternate uses of theoceans, such as mineral exploitation and sci-entific study.

(2) In any event where insufficient informationexists on any proposed discharge to make a rea-sonable judgment on any of the guidelines estab-

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par. (A), administrative provisions in subpar. (B), andtransfers in subpar. (C).

1987-Subsec. (b)(1). Pub. L. 100-4, §§308(b), 406(d)(3),505(a), substituted "transacts business which is directlyaffected by such action" for "transacts such business","120" for "ninety", and "120th" for "ninetieth", sub-stituted "1316, or 1345 of this title" for "or 1316 of thistitle" in cl. (E), and added cl. (G).

Subsec. (b)(3), (4). Pub. L. 100-4, §505(b), added pars.(3) and (4).

1973-Subsec. (b)(1)(C). Pub. L. 93-207 substituted"pretreatment" for "treatment".

EFFECTIVE DATE OF 1988 AMENDMENT

Amendment by Pub. L. 100-236 effective 180 days afterJan. 8, 1988, see section 3 of Pub. L. 100-236. set out asa note under section 2112 of Title 28, Judiciary and Ju-dicial Procedure.

§ 1370. State authority

Except as expressly provided in this chapter,nothing in this chapter shall (1) preclude ordeny the right of any State or political subdivi-sion thereof or interstate agency to adopt or en-force (A) any standard or limitation respectingdischarges of pollutants, or (B) any requirementrespecting control or abatement of pollution; ex-cept that if an effluent limitation, or other limi-tation, effluent standard, prohibition, pre-treatment standard, or standard of performanceis in effect under this chapter, such State or po-litical subdivision or interstate agency may notadopt or enforce any effluent limitation, orother limitation, effluent standard, prohibition,pretreatment standard, or standard of perform-ance which is less stringent than the effluentlimitation, or other limitation, effluent stand-ard, prohibition, pretreatment standard, orstandard of performance under this chapter; or(2) be construed as impairing or in any manneraffecting any right or jurisdiction of the Stateswith respect to the waters (including boundarywaters) of such States.

(June 30, 1948, ch. 758, title V, §510, as added Pub.L. 92-500, §2, Oct. 18, 1972, 86 Stat. 893.)

11371. Authority under other laws and regula-tions

(a) Impairment of authority or functions of offi-cials and agencies; treaty provisions

This chapter shall not be construed as (1) lim-iting the authority or functions of any officer oragency of the United States under any other lawor regulation not inconsistent with this chapter;(2) affecting or impairing the authority of theSecretary of the Army (A) to maintain naviga-tion or (B) under the Act of March 3, 1899, (30Stat. 1112); except that any permit issued undersection 1344 of this title shall be conclusive as tothe effect on water quality of any discharge re-sulting from any activity subject to section 403of this title, or (3) affecting or impairing theprovisions of any treaty of the United States.(b) Discharges of pollutants into navigable wa-

ters

Discharges of pollutants into the navigablewaters subject to the Rivers and Harbors Act of1910 (36 Stat. 593; 33 U.S.C. 421) and the Super-visory Harbors Act of 1888 (25 Stat. 209; 33 U.S.C.441-451b) shall be regulated pursuant to thischapter, and not subject to such Act of 1910 and

the Act of 1888 except as to effect on navigationand anchorage.(c) Action of the Administrator deemed major

Federal action; construction of the NationalEnvironmental Policy Act of 1969

(1) Except for the provision of Federal finan-cial assistance for the purpose of assisting theconstruction of publicly owned treatment worksas authorized by section 1281 of this title, andthe issuance of a permit under section 1342 ofthis title for the discharge of any pollutant by anew source as defined In section 1316 of thistitle, no action of the Administrator taken pur-suant to this chapter shall be deemed a majorFederal action significantly affecting the qual-ity of the human environment within the mean-ing of the National Environmental Policy Act of1969 (83 Stat. 852) [42 U.S.C. 4321 et seq.]; and

(2) Nothing in the National EnvironmentalPolicy Act of 1969 (83 Stat. 852) shall be deemedto-

(A) authorize any Federal agency authorizedto license or permit the conduct of any activ-ity which may result in the discharge of a pol-lutant Into the navigable waters to review anyeffluent limitation or other requirement es-tablished pursuant to this chapter or the ade-quacy of any certification under section 1341of this title; or

(B) authorize any such agency to impose, asa condition precedent to the issuance of anylicense or permit, any effluent limitationother than any such limitation establishedpursuant to this chapter.

(d) Consideration of international water pollu-tion control agreements

Notwithstanding this chapter or any otherprovision of law, the Administrator (1) shall notrequire any State to consider in the develop-ment of the ranking in order of priority of needsfor the construction of treatment works (as de-fined in subchapter II of this chapter), any waterpollution control agreement which may havebeen entered into between the United States andany other nation, and (2) shall not consider anysuch agreement in the approval of any such pri-ority ranking.

(June 30, 1948, ch. 758, title V, § 511, as added Pub.L. 92-500, §2, Oct. 18, 1972, 86 Stat. 893; amendedPub. L. 93-243, §3, Jan. 2, 1974, 87 Stat. 1069.)

REFERENCES IN TEXT

Act of March 3, 1899, referred to in subsec. (a), is actMar. 3, 1899, ch. 425, 30 Stat. 1121, as amended, which en-acted sections 401, 403, 404, 406, 407, 408, 409, 411 to 416,418, 502, 549, and 687 of this title and amended section886 of this title. For complete classification of this Act

to the Code, see Tables.The Rivers and Harbors Act of 1910, referred to in sub-

sec. (b), probably means act June 23, 1910, ch. 359, 36Stat. 593.

The Supervisory Harbors Act of 1888, referred to insubsec. (b), probably means act June 29, 1888, ch. 496, 25Stat. 209, as amended, which is classified generally tosubchapter M (1441 et seq.) of chapter 9 of this title.For complete classification of this Act to the Code, seeTables.

The National Environmental Policy Act of 1969, re-ferred to in subsec. (c), Is Pub. L. 91-190, Jan. 1, 1970, 83Stat. 852, as amended, which is classified generally tochapter 55 (§4321 et seq.) of Title 42, The Public Health

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and Welfare. For complete classification of this Act tothe Code, see Short Title note set out under section4321 of Title 42 and Tables.

AMENDMENTS

1974-Subsec. (d). Pub. L. 93-243 added subsec. (d).

01372. Labor standards

The Administrator shall take such action asmay be necessary to insure that all laborers andmechanics employed by contractors or sub-contractors on treatment works for whichgrants are made under this chapter shall be paidwages at rates not less than those prevailing forthe same type of work on similar constructionin the immediate locality, as determined by theSecretary of Labor, in accordance with sections3141-3144, 3146, and 3147 of title 40. The Secretaryof Labor shall have, with respect to the laborstandards specified in this subsection,2 the au-thority and functions set forth in Reorganiza-tion Plan Numbered 14 of 1950 (15 F.R. 3176) andsectioii 3145 of title 40.

(June 30, 1948, ch. 758, title V, §513, as added Pub.L. 92-500, §2, Oct. 18, 1972, 88 Stat. 894.)

REFERENCES IN TEXT

Reorganization Plan Numbered 14 of 1950, referred toin text, is Reorg. Plan No. 14 of 1950, eff. May 24, 1950,15 F.R. 3176, 64 Stat. 1267, which is set out in the Appen-dix to Title 5, Government Organization and Employ-ees.

CODIFICATION

In text, "sections 3141-3144, 3146, and 3147 of title 40"substituted for "the Act of March 3. 1931, as amended,known as the Davis-Bacon Act (46 Stat. 1494; 40 U.S.C.,sec. 276a through 276a-5)" and "section 3145 of title 40"substituted for "section 2 of the Act of June 13, 1934, asamended (48 Stat. 948; 40 U.S.C. 276c)" on authority ofPub. L. 107-217, §5(c), Aug. 21, 2002, 116 Stat. 1303, thefirst section of which enacted Title 40, Public Build-ings, Property, and Works.

§ 1373. Public health agency coordination

The permitting agency under section 1342 ofthis title shall assist the applicant for a permitunder such section in coordinating the require-ments of this chapter with those of the appro-priate public health agencies.

(June 30, 1948, ch. 758, title V, § 514, as added Pub.L. 92-500, §2, Oct. 18, 1972, 86 Stat. 894.)

§ 1374. Effluent Standards and Water Quality In-formation Advisory Committee

(a) Establishment; membership; term

(1) There is established an Effluent Standardsand Water Quality Information Advisory Com-mittee, which shall be composed of a Chairmanand eight members who shall be appointed bythe Administrator within sixty days after Octo-ber 18, 1972.

(2) All members of the Committee shall be se-lected from the scientific community, qualifiedby education, training, and experience to pro-vide, assess, and evaluate scientific and tech-nical information on effluent standards and lim-itations.

(3) Members of the Committee shall serve fora term of four years, and may be reappointed.

so in original. Probably should be "section,".

(b) Action on proposed regulations(1) No later than one hundred and eighty days

prior to the- date on which the Administrator isrequired to publish any proposed regulations re-quired by section 1314(b) of this title, any pro-posed standard of performance for new sourcesrequired by section 1316 of this title, or any pro-posed toxic effluent standard required by section1317 of this title, he shall transmit to the Com-mittee a notice of intent to propose such regula-tions. The Chairman of the Committee withinten days after receipt of such notice may pub-lish a notice of a public hearing by the Commit-tee, to be held within thirty days.

(2) No later than one hundred and twenty daysafter receipt of such notice, the Committee shalltransmit to the Administrator such scientificand technical information as is in its possession,including that presented at any public hearing,related to the subject matter contained in suchnotice.

(3) Information so transmitted to the Adminis-trator shall constitute a part of the administra-tive record and comments on any proposed regu-lations or standards as Information to be consid-ered with other comments and information inmaking any final determinations.

(4) In preparing information for transmittal,the Committee shall avail itself of the technicaland scientific services of any Federal agency, in-cluding the United States Geological Survey andany national environmental laboratories whichmay be established.(c) Secretary; legal counsel; compensation

(1) The Committee shall appoint and prescribethe duties of a Secretary, and such legal counselas it deems necessary. The Committee shall ap-point such other employees as it deems nec-essary to exercise and fulfill its powers and re-sponsibilities. The compensation of all employ-ees appointed by the Committee shall be fixed inaccordance with chapter 51 and subchapter III ofchapter 53 of title 5.

(2) Members of the Committee shall be enti-tled to receive compensation at a rate to befixed by the President but not in excess of themaximum rate of pay for grade GS-18, as pro-vided in the General Schedule under section 5332of title 5.(d) Quorum; special panel

Five members of the Committee shall con-stitute a quorum, and official actions of theCommittee shall be taken only on the affirma-tive vote of at least five members. A specialpanel composed of one or more members uponorder of the Committee shall conduct any hear-ing authorized by this section and submit thetranscript of such hearing to the entire Commit-tee for its action thereon.(e) Rules

The Committee is authorized to make suchrules as are necessary for the orderly trans-action of its business.

(June 30, 1948, ch. 758, title V, § 515, as added Pub.L. 92-500, §2, Oct. 18, 1972, 86 Stat. 894.)

TERMINATION OF ADVISORY COMMFITEES

Advisory committees In existence on Jan. 5, 1973, toterminate not later than the expiration of the 2-year

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§ 1004. State's agent.

The secretary shall be the agent to coordinate the state interest before the Federal Energy RegulatoryCommission in all matters involving water quality and regulation or control of natural stream flowthrough the use of dams situated on streams within the boundaries of the state, and it shall advise theFederal Energy Regulatory Commission of the amount of flow considered necessary in each streamunder consideration. The agency of natural resources shall be the certifying agency of the state forpurposes of Section 401 of the federal Clean Water Act and the secretary's determinations on thesecertifications shall be final action by the secretary appealable to the environmental court. The secretaryshall be the agent of the state and shall represent the state's interest under the provisions of the FederalPower Act, including those that protect state-designated outstanding resource waters. However, thesecretary's authority shall not infringe upon the powers and duties of the public service board or therelations of that board to the Federal Energy Regulatory Commission as set forth in the Federal PowerAct respecting water used for the development of hydro-electric power or projects incident to thegeneration of electric energy for public use as part of a public utility system.

1965, No. 37, § 4; amended 1981, No. 222 (Adj. Sess.), § 24; 1983, No. 193 (Adj. Sess.), § 3, eff. April27, 1984; 1987, No. 67, § 12; No. 76, § 18; 1991, No. 81, § 1; 2003, No. 115 (Adj. Sess.), § 19, eff. Jan.31, 2005.

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§ 1263. Discharge permits.

(a) Any person who intends to discharge waste into the waters of the state or who intends to dischargeinto an injection well or who intends to discharge into any publicly owned treatment works any wastewhich interferes with, passes through without treatment, or is otherwise incompatible with that works orwould have a substantial adverse effect on that works or on water quality shall make application to thesecretary for a discharge permit. Application shall be made on a form prescribed by the secretary. Anapplicant shall pay an application fee in accordance with 3 V.S.A. § 2822.

(b) Except for applications for permission to discharge under the terms of a previously issued generalpermit, the secretary shall provide for notice of each application to the public and any appropriateofficials of another state and the federal government including the administrator of the United StatesEnvironmental Protection Agency, and shall provide an opportunity for written comments or a publichearing or both on the application before making a final ruling on the application. Prior to issuing ageneral permit, the secretary shall give notice as provided in this subsection and provide for writtencomments or a public hearing or both as provided in this subsection. For applications for permission todischarge under the terms of a previously issued general permit, the applicant shall provide notice, on aform provided by the secretary, to the municipal clerk of the municipality in which the discharge islocated at the time the application is filed with the secretary, and the secretary shall provide anopportunity for written comment, regarding whether the application complies with the terms andconditions of the general permit, for ten days following receipt of the application. The secretary mayrequire any applicant to submit any additional information, which the secretary considers necessary andmay refuse to grant a permit, or permission to discharge under the terms of a general permit, until theinformation is furnished and evaluated.

(c) If the secretary determines that the proposed discharge will not reduce the quality of the receivingwaters below the classification established for them and will not violate any applicable provisions ofstate or federal laws or regulations, he shall issue a permit containing terms and conditions as may benecessary to carry out the purposes of this chapter and of applicable federal law. Those terms andconditions may. include, but shall not be limited to, providing for specific effluent limitations and levelsof treatment technology; monitoring, recording, reporting standards; entry and inspection authority forstate and federal officials; reporting of new pollutants and substantial changes in volume or character ofdischarges to waste treatment systems or waters of the state; pretreatment standards before discharge towaste treatment facilities or waters of the state; and toxic effluent standards or prohibitions.

(d) A discharge permit shall:

(1) specify the manner, nature, volume, and frequency of the discharge permitted and contain terms andconditions consistent with subsection (c) of this section;

(2) require proper operation and maintenance of any pollution abatement facility necessary in thetreatment or processing of the waste by qualified personnel in accordance with standards established bythe secretary. The secretary may require operators to be certified under a program established by thesecretary. The secretary may require a laboratory quality assurance sample program to insurequalifications of laboratory analysts;

(3) contain an operation, management, and emergency response plan when required under section 1278of this title and additional conditions, requirements, and restrictions as the secretary deems necessary to

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preserve and protect the quality of the receiving waters, including but not limited to requirementsconcerning recording, reporting, monitoring, and inspection of the operation and maintenance of wastetreatment facilities and waste collection systems; and

(4) be valid for the period of time specified therein, not to exceed five years.

(e) A discharge permit may be renewed from time to time upon application to the secretary. A renewalpermit filing requirement for reissuance shall be determined by the secretary and may range from asimple written request for reissuance to the submission of all information required by the initialapplication. A renewal permit shall be issued following all determinations and procedures required forinitial permit application.

(f) Existing indirect discharges to the waters of the state from on-site disposal of sewage shall complywith and be subject to the provisions of this chapter, and shall obtain the required permit, no later thanJuly 1, 1991. Notwithstanding the requirements of subsections 1259(d) and (e) of this title, the secretaryshall grant a permit for an existing indirect discharge to the waters of the state for on-site disposal ofsewage unless he or she finds that the discharge violates the water quality standards. Existing indirectdischarges from on-site sewage disposal systems of less than 6,500 gpd capacity shall not require apermit.

(g) Notwithstanding any other provision of law, any person who owns or operates a concentratedanimal feeding operation that requires a permit under the federal National Pollutant DischargeElimination System permit regulations shall submit an application to the secretary for a discharge permitand pay the required fees specified in 3 V.S.A. § 2822. On or before July 1, 2007, the secretary ofnatural resources shall adopt rules implementing the federal National Pollutant Discharge EliminationSystem permit regulations for discharges from concentrated animal feeding operations. Until suchregulations are adopted, the substantive permitting standards and criteria used by the secretary toevaluate applications and issue or deny discharge permits for concentrated animal feeding operationsshall be those specified by federal regulations. The secretary may issue an individual or general permitfor these types of discharges in accordance with the procedural requirements of subsection (b) of thissection and other state law. For the purposes of this subsection, "concentrated animal feeding operation"means a farm that meets the definition contained in the federal regulations.

Added 1969, No. 252 (Adj. Sess.), § 11, eff. April 4, 1970; amended 1973, No. 103, § 6, eff. April 24,1973; 1981, No. 222 (Adj. Sess.), § 25; 1985, No. 199 (Adj. Sess.), § 7, eff. May 17, 1986; 1987, No.76, § 4; 1987, No. 173 (Adj. Sess.), eff. May 6, 1988; No. 282 (Adj. Sess.), § 13; 1989, No. 116, § 2;1993, No. 48, §§ 5, 6, eff. June 1, 1993; 2003, No. 115 (Adj. Sess.), § 27, eff. Jan. 31, 2005; 2005, No.78, § 13, eff. June 24, 2005; 2005, No. 154 (Adj. Sess.), § 5b, eff. July 1, 2007.

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§50.1 10 CFR Ch. 1 (1-1-10 Edition)

CONDITIONS FOR OPERATION To MEET THECRITERION "As LOW AS IS REASONABLYACHIEVABLE" FOR RADIOACTIVE MATERIALIN LIGHT-WATER-COOLED NUCLEAR POWER

REACTOR EFFLUENTSAPPENDIX J TO PART 50-PRIMARY REACTOR

CONTAINMENT LEAKAGE TESTING FORWATER-COOLED POWER REACTORS

APPENDIX K TO PART 50-ECCS EVALUATIONMODELS

APPENDIX L TO PART 50 (RESERVED]APPENDIX M TO PART 50 [RESERVED]APPENDIX N TO PART 50-STANDARDIZATION OF

NUCLEAR POWER PLANT DESIGNS: PERMITSTo CONSTRUCT AND LICENSES To OPERATENUCLEAR POWER REACTORS OF IDENTICALDESIGN AT MULTIPLE SITES

APPENDIX 0 TO PART 50 [RESERVED]APPENDIX P TO PART 50 [RESERVED]

APPENDIX Q TO PART 50-PRE-APPLICATIONEARLY REVIEW OF SITE SUITABILITYISSUES

APPENDIX R TO PART 50--FIRE PROTECTIONPROGRAM FOR NUCLEAR POWER FACILITIESOPERATING PRIOR TO JANUARY 1, 1979

APPENDIX S TO PART 50--EARTHQUAKE ENGI-NEERING CRITERIA FOR NUCLEAR POWERPLANTS

AUTHORITY: Sees. 102, 103, 104, 105, 161, 182,183, 186, 189, 68 Stat. 936, 937, 938, 948, 953, 954,955, 956, as amended, sec. 234, 83 Stat. 444, asamended (42 U.S.C. 2132, 2133, 2134, 2135, 2201,2232, 2233, 2236, 2239, 2282); sees. 201, as amend-ed, 202, 206, 88 Stat. 1242, as amended, 1244,1246 (42 U.S.C. 5841, 5842, 5846); sec. 1704, 112Stat. 2750 (44 U.S.C. 3504 note); Energy PolicyAct of 2005, Pub. L. No. 109-58, 119 Stat. 594(2005). Section 50.7 also issued under Pub. L.95-601. sec. 10. 92 Stat. 2951 (42 U.S.C. 5841).Section 50.10 also issued under secs. 101, 185,68 Stat. 955, as amended (42 U.S.C. 2131, 2235);sec. 102, Pub. L. 91-190, 83 Stat. 853 (42 U.S.C.4332). Sections 50.13, 50.54(dd), and 50.103 alsoissued under sec. 108, 68 Stat. 939, as amended(42 U.S.C. 2138).

Sections 50.23, 50.35, 50.55, and 50.56 alsoissued under sec. 185, 68 Stat. 955 (42 U.S.C.2235). Sections 50.33a, 50.55a and Appendix Qalso issued under sec. 102, Pub. L. 91-190, 83Stat. 853 (42 U.S.C. 4332). Sections 50.34 and50.54 also issued under sec. 204, 88 Stat. 1245(42 U.S.C. 5844). Sections 50.58, 50.91, and 50.92also issued under Pub. L. 97415, 96 Stat. 2073(42 U.S.C. 2239). Section 50.78 also issuedunder sec. 122, 68 Stat. 939 (42 U.S.C. 2152).Sections 50.80-50.81 also issued under sec. 184,68 Stat. 954, as amended (42 U.S.C. 2234). Ap-pendix F also issued under sec. 187, 68 Stat.955 (42 U.S.C. 2237).

SOURCE: 21 FR 355, Jan. 19, 1956, unless oth-erwise noted.

GENERAL PROVISIONS

§50.1 Basis, purpose, and proceduresapplicable.

The regulations In this part are pro-mulgated by the Nuclear RegulatoryCommission pursuant to the AtomicEnergy Act of 1954, as amended (68Stat. 919), and Title II of the EnergyReorganization Act of 1974 (88 Stat.1242), to provide for the licensing ofproduction and utilization facilities.This part also gives notice to all per-sons who knowingly provide to any li-censee, applicant, contractor, or sub-contractor, components, equipment,materials, or other goods or services,that relate to a licensee's or appli-cant's activities subject to this part,that they may be individually subjectto NRC enforcement action for viola-tion of § 50.5.

(63 FR 1897, Jan. 13, 1998]

§ 50.2 Definitions..As used in this part,Act means the Atomic Energy Act of

1954 (68 Stat. 919) including any amend-ments thereto.

Alternate ac source means an alter-nating current (ac) power source thatis available to and located at or nearbya nuclear power plant and meets thefollowing requirements:

(1) Is connectable to but not nor-mally connected to the offsite or onsiteemergency ac power systems;

(2) Has minimum potential for com-mon mode failure with offsite power orthe onsite emergency ac power sources;

(3) Is available in a timely mannerafter the onset of station blackout; and

(4) Has sufficient capacity and reli-ability for operation of all systems re-quired for coping with station blackoutand for the time required to bring andmaintain the plant in safe shutdown(non-design basis accident).

Applicant means a person or an entityapplying for a license, permit, or otherform of Commission permission or ap-proval under this part or part 52 of thischapter.

Atomic energy means all forms of en-ergy released in the course of nuclearfission or nuclear transformation.

Atomic weapon means any device uti-lizing atomic energy, exclusive of themeans for transporting or propelling

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Nuclear Regulatory Commission

the device (where such means is a sepa-rable and divisible part of the device),the prinicipal purpose of which is foruse as, or for development of, a weap-on, a weapon prototype, or a weapontest device.

Basic component means, for the pur-poses of § 50.55(e) of this chapter:

(1) When applied to nuclear power re-actors, any plant structure, system,component, or part thereof necessaryto assure

(I) The integrity of the reactor cool-ant pressure boundary,

(ii) The capability to shut down thereactor and maintain it in a safe shut-down condition, or

(iii) The capability to prevent ormitigate the consequences of accidentswhich could result in potential offsiteexposures comparable to those referredto in §50.34(a)(1), §50.67(b)(2), or §100.11of this chapter, as applicable.

(2) When applied to other types of fa-cilities or portions of such facilities forwhich construction permits are Issuedunder §50.23, a component, structure,system or part thereof that is directlyprocured by the construction permitholder for the facility subject to theregulations of this part and in which adefect or failure to comply with anyapplicable regulation in this chapter,order, or license issued by the Commis-sion could create a substantial safetyhazard.

(3) In all cases, basic component in-cludes safety related design, analysis,inspection, testing, fabrication, re-placement parts, or consulting servicesthat are associated with the compo-nent hardware, whether these servicesare performed by the component sup-plier or other supplier.

Byproduct material means-(1) Any radioactive material (except

special nuclear material) yielded in, ormade radioactive by, exposure to theradiation incident to the process ofproducing or using special nuclear ma-terial;

(2)(1) Any discrete source of radium-226 that is produced, extracted, or con-verted after extraction, before, on, orafter August 8, 2005, for use for a com-mercial, medical, or research activity;or

(ii) Any material that-

§50.2

(A) Has been made radioactive by useof a particle accelerator; and

(B) Is produced, extracted, or con-verted after extraction, before, on, orafter August 8, 2005, for use for a com-mercial, medical, or research activity;and

(3) Any discrete source of naturallyoccurring radioactive material, otherthan source material, that-

(I) The Commission, in consultationwith the Administrator of the Environ-mental Protection Agency, the Sec-retary of Energy, the Secretary ofHomeland Security, and the head ofany other appropriate Federal agency,determines would pose a threat similarto the threat posed by a discrete sourceof radium-226 to the public health andsafety or the common defense and secu-rity; and

(11) Before, on, or after August 8, 2005,is extracted or converted after extrac-tion for use in a commercial, medical,or research activity.

Certified fuel handler means, for a nu-clear power reactor facility, a non-li-censed operator who has qualified inaccordance with a fuel handler trainingprogram approved by the Commission.

Commission means the Nuclear Regu-latory Commission or its duly author-ized representatives.

Committed dose equivalent means thedose equivalent to organs or tissues ofreference that will be received from anintake of radioactive material by anindividual during the 50-year periodfollowing the intake.

Committed effective dose equivalent isthe sum of the products of theweighting factors applicable to each ofthe body organs or tissues that are Ir-radiated and the committed doseequivalent to these organs or tissues.

Common defense and security meansthe common defense and security ofthe United States.

Construction or constructing means,for the purposes of §50.55(e), the anal-ysis, design, manufacture, fabrication,quality assurance, placement, erection,installation, modification, inspection,or testing of a facility or activitywhich is subject to the regulations inthis part and consulting services re-lated to the facility or activity thatare safety related.

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§50.2

Controls when used with respect tonuclear reactors means apparatus andmechanisms, the manipulation ofwhich directly affects the reactivity orpower level of the reactor.

Controls when used with respect toany other facility means apparatus andmechanisms, the manipulation ofwhich could affect the chemical, phys-ical, metallurgical, or nuclear processof the facility in such a manner as toaffect the protection of health andsafety against radiation.

Cost of service regulation means thetraditional system of rate regulation,or similar regulation, including "pricecap" or "incentive" regulation, inwhich a rate regulatory authority gen-erally allows an electric utility tocharge its customers the reasonableand prudent costs of providing elec-tricity services, including capital, op-erations, maintenance, fuel, decommis-sioning, and other costs required toprovide such services.

Decommission means to remove a fa-cility or site safely from service andreduce residual radioactivity to a levelthat permits-

(1) Release of the property for unre-stricted use and termination of the li-cense; or

(2) Release of the property under re-stricted conditions and termination ofthe license.

Deep-dose equivalent, which applies toexternal whole-body exposure, is thedose equivalent at a tissue depth of 1cm (1000mg/cm 2 ).

Defect means, for the purposes of§ 50.55(e) of this chapter:

(1) A deviation in a basic componentdelivered to a purchaser for use in a fa-cility or activity subject to a construc-tion permit under this part, if on thebasis of an evaluation, the deviationcould create a substantial safety haz-ard; or

(2) The installation, use, or operationof a basic component containing, a de-fect as defined in paragraph (1) of thisdefinition; or

(3) A deviation in a portion of a facil-ity subject to the construction permitof this part provided the deviationcould, on the basis of an evaluation,create a substantial safety hazard.

Department and Department of Energymeans the Department of Energy es-

10 CFR Ch. 1 (1-1-10 Edition)

tablished by the Department of EnergyOrganization Act (Pub. L. 95-91, 91Stat. 565, 42 U.S.C. 7101 et seq.), to theextent that the department, or its dulyauthorized representatives, exercisesfunctions formerly vested in the Atom-ic Energy Commission, its Chairman,members, officers and components andtransferred to the U.S. Energy Re-search and Development Administra-tion and to the Administrator thereofpursuant to sections 104 (b), (c) and (d)of the Energy Reorganization Act of1974 (Pub. L. 93-438, 88 Stat. 1233 at 1237,42 U.S.C. 5814) and retransferred to theSecretary of Energy pursuant to sec-tion 301(a) of the Department of EnergyOrganization Act (Pub. L. 95-91, 91Stat. 565 at 577-578, 42 U.S.C. 7151).

Design bases means that informationwhich identifies the specific functionsto be performed by a structure, system,or component of a facility, and the spe-cific values or ranges of values chosenfor controlling parameters as referencebounds for design. These values may be(1) restraints derived from generallyaccepted "state of the art" practicesfor achieving functional goals, or (2) re-quirements derived from analysis(based on calculation and/or experi-ments) of the effects of a postulated ac-cident for which a structure, system,or component must meet its functionalgoals.

Devmation means, for the purposes of§50.55(e) of this chapter, a departurefrom the technical or quality assurancerequirements defined in procurementdocuments, safety analysis report, con-struction permit, or other documentsprovided for basic components In-stalled in a facility subject to the regu-lations of this part.

Director means, for the purposes of§50.55(e) of this chapter, an individual,appointed or elected according to law,who is authorized to manage and directthe affairs of a corporation, partner-ship or other entity.

Discovery means, for the purposes of§50.55(e) of this chapter, the comple-tion of the documentation first identi-fying the existence of a deviation orfailure to comply potentially associ-ated with a substantial safety hazardwithin the evaluation procedures dis-cussed in § 50.55(e)(1).

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Nuclear Regulatory Commission

Electric utility means any entity thatgenerates or distributes electricity andwhich recovers the cost of this elec-tricity, either directly or indirectly,through rates established by the entityitself or by a separate regulatory au-thority. Investor-owned utilities, in-cluding generation or distribution sub-sidiaries, public utility districts, mu-nicipalities, rural electric coopera-tives, and State and Federal agencies,including associations of any of theforegoing, are included within themeaning of "electric utility."

Evaluation means, for the purposes of§50.55(e) of this chapter, the process ofdetermining whether a particular devi-ation could create a substantial safetyhazard or determining whether a fail-ure to comply is associated with a sub-stantial safety hazard.

Exclusion area means that area sur-rounding the reactor, in which the re-actor licensee has the authority to de-termine all activities including exclu-sion or removal of personnel and prop-erty from the area. This area may betraversed by a highway, railroad, orwaterway, provided these are not socloseto the facility as to interfere withnormal operations of the facility andprovided appropriate and effective ar-rangements are made to control trafficon the highway, railroad, or waterway,in case of emergency, to protect thepublic health and safety. Residencewithin the exclusion area shall nor-mally be prohibited. In any event, resi-dents shall be subject to ready removalin case of necessity. Activities unre-lated to operation of the reactor maybe permitted in an exclusion areaunder appropriate limitations, pro-vided that no significant hazards to thepublic health and safety will result.

Federal Government funding for conver-sion means funds appropriated to theDepartment of Energy or to any otherFederal Agency to pay directly to or toreimburse non-power reactor licenseesfor costs attendant to conversion.

Federal licensee means any NRC li-censee, the obligations of which areguaranteed by and supported by thefull faith and credit of the UnitedStates Government.

Fuel acceptable to the Commissionmeans that the fuel replacing the exist-ing HEU fuel in a specific non-power

§50.2

reactor (1) meets the operating require-ments of the existing license or,through appropriate NRC safety reviewand approval, can be used in a mannerwhich protects public health and safetyand promotes the common defense andsecurity; and (2) meets the Commis-sion's policy of limiting, to the max-imum extent possible, the use of HEUfuel in that reactor.

Government agency means any execu-tive department, commission, Inde-pendent establishment, corporation,wholly or partly owned by the UnitedStates of America which is an instru-mentality of the United States, or anyboard, bureau, division, service, office,officer, authority, administration, orother establishment in the executivebranch of the Government.

Highly enriched uranium (HEU) fuelmeans fuel in which the weight percentof U-235 in the uranium is 20% or great-er. Target material, special instrumen-tation, or experimental devices usingHEU are not included.

Historical site assessment means theidentification of potential, likely, orknown sources of radioactive materialand radioactive contamination basedon existing or derived information forthe purpose of classifying a facility orsite, or parts thereof, as impacted ornon-impacted.

Impacted areas mean the areas withsome reasonable potential for residualradioactivity in excess of natural back-ground or fallout levels.

Incentive regulation means the systemof rate regulation in which a rate regu-latory authority establishes rates thatan electric generator may charge itscustomers that are based on specifiedperformance factors, in addition tocost-of-service factors.

License means a license, including aconstruction permit or operating li-cense under this part, an early site per-mit, combined license or manufac-turing license under part 52 of thischapter, or a renewed license issued bythe Commission under this part, part52, or part 54 of this chapter.

Licensee means a person who is au-thorized to conduct activities under alicense issued by the Commission.

Low enriched uranium (LEU) fuelmeans fuel in which the weight percent

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§ 50.2

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10 CFR Ch. 1 (1-1-10 Edition)

of U-235 in the uranium is less than20%.

Low population zone means the areaimmediately surrounding the exclusionarea which contains residents, thetotal number and density of which aresuch that there is a reasonable prob-ability that appropriate protectivemeasures could be taken in their behalfin the event of a serious accident.These guides do not specify a permis-sible population density or total popu-lation within this zone because the sit-uation may vary from case to case.Whether a specific number of peoplecan, for example, be evacuated from aspecific area, or instructed to takeshelter, on a timely basis will dependon many factors such as location, num-ber and size of highways, scope and ex-tent of advance planning, and actualdistribution of residents within thearea.

Major decommissioning activity means,for a nuclear power reactor facility,any activity that results in permanentremoval of major radioactive compo-nents, permanently modifies the struc-ture of the containment, or results indismantling components for shipmentcontaining greater than class C wastein accordance with §61.55 of this chap-ter.

Major radioactive components means,for a nuclear power reactor facility,the reactor vessel and internals, steamgenerators, pressurizers, large bore re-actor coolant system piping, and otherlarge components that are radioactiveto a comparable degree.

Non-bypassable charges mean thosecharges imposed over an establishedtime period by a Government authoritythat affected persons or entities are re-quired to pay to cover costs associatedwith the decommissioning of a nuclearpower plant. Such charges include, butare not limited to, wire charges,stranded cost charges, transitioncharges, exit fees, other similarcharges, or the securitized proceeds ofa revenue stream.

Non-impacted areas mean the areaswith no reasonable potential for resid-ual radioactivity in excess of naturalbackground or fallout levels.

Non-power reactor means a researchor test reactor licensed under §§ 50.21(c)

or 50.22 of this part for research and de-velopment.

Notification means the telephoniccommunication to the NRC OperationsCenter or written transmittal of infor-mation to the NRC Document ControlDesk.

Nuclear reactor means an apparatus,other than an atomic weapon, designedor used to sustain nuclear fission in aself-supporting chain reaction.

Permanent cessation of operation(s)means, for a nuclear power reactor fa-cility, a certification by a licensee tothe NRC that it has permanentlyceased or will permanently cease reac-tor operation(s), or a final legally ef-fective order to permanently cease op-eration(s) has come into effect.

Permanent fuel removal means, for anuclear power reactor facility, a cer-tification by the licensee to the NRCthat it has permanently removed allfuel assemblies from the reactor vessel.

Person means (1) any individual, cor-poration, partnership, firm, associa-tion, trust, estate, public or private In-stitution, group, government agencyother than the Commission or the De-partment, except that the Departmentshall be considered a person to the ex-tent that its facilities are subject tothe licensing and related regulatoryauthority of the Commission pursuantto section 202 of the Energy Reorga-nization Act of 1974, any State or anypolitical subdivision of, or any polit-ical entity within a State, any foreigngovernment or nation or any politicalsubdivision of any such government ornation, or other entity; and (2) anylegal successor, representative, agent,or agency of the foregoing.

Price-cap regulation means the systemof rate regulation in which a rate regu-latory authority establishes rates thatan electric generator may charge Itscustomers that are based on a specifiedmaximum price of electricity.

Procurement document means, for thepurposes of §50.55(e) of this chapter, acontract that defines the requirementswhich facilities or basic componentsmust meet in order to be considered ac-ceptable by the purchaser.

Produce, when used in relation to spe-cial nuclear material, means (1) tomanufacture, make, produce, or refine

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Nuclear Regulatory Commlsslon

special nuclear material; (2) to sepa-rate special nuclear material fromother substances in which such mate-rial may be contained; or (3) to makeor to produce new special nuclear ma-terial.

Production facility means:(1) Any nuclear reactor designed or

used primarily for the formation ofplutonium or uranium-233; or

(2) Any facility designed or used forthe separation of the isotopes of pluto-nium, except laboratory scale facilitiesdesigned or used for experimental oranalytical purposes only; or

(3) Any facility designed or used forthe processing of irradiated materialscontaining special nuclear material,except (i) laboratory scale facilities de-signed or used for experimental or ana-lytical purposes, (ii) facilities in whichthe only special nuclear materials con-tained in the irradiated material to beprocessed are uranium enriched in theisotope U-235 and plutonium producedby the irradiation, if the material proc-essed contains not more than 10-6grams of plutonium per gram of U-235and has fission product activity not inexcess of 0.25 millicuries of fissionproducts per gram of U-235, and (iii) fa-cilities in which processing is con-ducted pursuant to a license issuedunder parts 30 and 70 of this chapter, orequivalent regulations of an Agree-ment State, for the receipt, possession,use, and transfer of irradiated specialnuclear material, which authorizes theprocessing of the irradiated materialon a batch basis for the separation ofselected fission products and limits theprocess batch to not more than 100grams of uranium enriched in the iso-tope 235 and not more than 15 grams ofany other special nuclear material.

Prototype plant means a nuclear reac-tor that is used to test design features,such as the testing required under§50.43(e). The prototype plant is similarto a first-of-a-kind or standard plantdesign in all features and size, but mayinclude additional safety features toprotect the public and the plant stafffrom the possible consequences of acci-dents during the testing period.

Reactor coolant pressure boundarymeans all those pressure-containingcomponents of boiling and pressurizedwater-cooled nuclear power reactors,

§ 50.2

such as pressure vessels, piping, pumps,and valves, which are:

(1) Part of the reactor coolant sys-tem, or

(2) Connected to the reactor coolantsystem, up to and including any and allof the following:

(I) The outermost containment isola-tion valve in system piping which pene-trates primary reactor containment,

(ii) The second of two valves nor-mally closed during normal reactor op-eration in system piping which doesnot penetrate primary reactor contain-ment,

(iii) The reactor coolant system safe-ty and relief valves.For nuclear power reactors of the di-rect cycle boiling water type, the reac-tor coolant system extends to and in-cludes the outermost containment iso-lation valve in the main steam andfeedwater piping.

Research and development means (1)theoretical analysis, exploration, orexperimentation; or (2) the extension ofinvestigative findings and theories of ascientific or technical nature intopractical application for experimentaland demonstration purposes, includingthe experimental production and test-ing of models, devices, equipment, ma-terials, and processes.

Responsible officer means, for the pur-poses of §50.55(e) of this chapter, thepresident, vice-president, or other indi-vidual in the organization of a corpora-tion, partnership, or other entity whoIs vested with executive authority overactivities subject to this part.

Restricted Data means all data con-cerning (1) design, manufacture, or uti-lization of atomic weapons; (2) the pro-duction of special nuclear material; or(3) the use of special nuclear materialin the production of energy, but shallnot include data declassified or re-moved from the Restricted Data cat-egory pursuant to section 142 of theAct.

Safe shutdown (non-design basis acci-dent (non-DBA)) for station blackoutmeans bringing the plant to thoseshutdown conditions specified in planttechnical specifications as Hot Stand-by or Hot Shutdown, as appropriate(plants have the option of maintainingthe RCS at normal operating tempera-tures or at reduced temperatures).

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§50.2 10 CFR Ch. I (1-1-10 Edition)

Safety-related structures, systems andcomponents means those structures,systems and components that are re-lied upon to remain functional duringand following design basis events to as-sure:

(1) The integrity of the reactor cool-ant pressure boundary

(2) The capability to shut down thereactor and maintain it in a safe shut-down condition; or

(3) The capability to prevent or miti-gate the consequences of accidentswhich could result in potential offsiteexposures comparable to the applicableguideline exposures set forth in§50.34(a)(1) or §100.11 of this chapter, asapplicable.

Source material means source mate-rial as defined in subsection lIz. of theAct and in the regulations contained inpart 40 of this chapter.

Source term refers to the magnitudeand mix of the radlonuclides releasedfrom the fuel, expressed as fractions ofthe fission product inventory in thefuel, as well as their physical andchemical form, and the timing of theirrelease.

Special nuclear material means (1) plu-tonium, uranium-233, uranium enrichedin the isotope-233 or in the isotope-235,and any other material which the Com-mission, pursuant to the provisions ofsection 51 of the act, determines to bespecial nuclear material, but does notinclude source material; or (2) any ma-terial artificially enriched by any ofthe foregoing, but does not Includesource material.

Station blackout means the completeloss of alternating current (ac) electricpower to the essential and nonessentialswitchgear buses in a nuclear powerplant (i.e., loss of offaite electric powersystem concurrent with turbine tripand unavailability of the onsite emer-gency ac power system). Station black-out does not include the loss of avail-able ac power to buses fed by stationbatteries through inverters or by alter-nate ac sources as defined in this sec-tion, nor does it assume a concurrentsingle failure or design basis accident.At single unit sites, any emergency acpower source(s) in excess of the numberrequired to meet minimum redundancyrequirements (i.e., single failure) forsafe shutdown (non-DBA) is assumed to

be available and may be designated asan alternate power source(s) providedthe applicable requirements are met.At multi-unit sites, where the com-bination of emergency ac powersources exceeds the minimum redun-dancy requirements for safe shutdown(non-DBA) of all units, the remainingemergency ac power sources may beused as alternate ac power sources pro-vided they meet the applicable require-ments. If these criteria are not met,station blackout must be assumed onall the units.

Substantial safety hazard means, forthe purposes of §50.55(e) of this chap-ter, a loss of safety function to the ex-tent that there is a major reduction inthe degree of protection provided topublic health and safety for any facil-ity or activity authorized by the con-struction permit issued under thispart.

Testing facility means a nuclear reac-tor which is of a type described In§50.21(c) of this part and for which anapplication has been filed for a licenseauthorizing opgration at:

(1) A thermal power level In excess of10 megawatts; or

(2) A thermal power level in excess of1 megawatt, if the reactor is to con-tain:

(1) A circulating loop through thecore in which the applicant proposes toconduct fuel experiments; or

(ii) A liquid fuel loading; or(II1) An experimental facility in the

core In excess of 16 square inches incross-section.

Total Effective Dose Equivalent (TEDE)means the sum of the effective doseequivalent (for external exposures) andthe committed effective dose equiva-lent (for internal exposures).

Unique purpose means a project, pro-gram, or commercial activity whichcannot reasonably be accomplishedwithout the use of HEU fuel, and mayinclude: (1) A specific experiment, pro-gram, or commercial activity (typi-cally long-term) that significantlyserves the U.S. national interest- andcannot be accomplished without theuse of HEU fuel; (2) Reactor physics orreactor development based explicitlyon the use of HEU fuel; (3) Researchprojects based on neutron flux levels orspectra attainable only with HEU fuel;

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Nuclear Regulatory Commission

or (4) A reactor core of special designthat could not perform its intendedfunction without using HEU fuel.

United States, when used in a geo-graphical sense, Includes Puerto Ricoand all territories and possessions ofthe United States.

Utiliation facility means any nuclearreactor other than one designed or usedprimarily for the formation of pluto-nium or U-233.

NOTE: Pursuant to subsections lv. andllcc., respectively, of the Act, the Commis-sion may from time to time add to, or other-wise alter, the foregoing definitions of pro-duction and utilization facility. It may alsoinclude as a facility an important compo-nent part especially designed for a facility,but has not at this time included any compo-nent parts in the definitions.[21 FR 355, Jan. 19, 19561

EDITORIAL NOTE: For FEDERAL REGISTER ci-tations affecting §50.2, see the List of CFRSections Affected, which appears in theFinding Aids section of the printed volumeand on GPO Access.

§ 50.3 Interpretations.Except as specifically authorized by

the Commission in writing, no inter-pretation of the meaning of the regula-tions in this part by any officer or em-ployee of the Commission other than awritten interpretation by the GeneralCounsel will be recognized to be bind-ing upon the Commission.

§ 50.4 Written communications.

(a) General requirements. All cor-respondence, reports, applications, andother written communications fromthe applicant or licensee to the NuclearRegulatory Commission concerning theregulations in this part or individuallicense conditions must be sent eitherby mall addressed: ATTN: DocumentControl Desk, U.S. Nuclear RegulatoryCommission, Washington, DC 20555-0001; by hand delivery to the NRC's of-fices at 11555 Rockville Pike, Rock-ville, Maryland, between the hours of8:15 a.m. and 4 p.m. eastern time; or,where practicable, by electronic sub-mission, for example, via Electronic In-formation Exchange, e-mail, or CD-ROM. Electronic submissions must bemade in a manner that enables theNRC to receive, read, authenticate, dis-tribute, and archive the submission,and process and retrieve it a single

§ 50.4

page at a time. Detailed guidance onmaking electronic submissions can beobtained by visiting the NRC's Website at http://www.nrc.gov/site-help/e-sub-mittals.html; by e-mail [email protected]; or by writingthe Office of Information Services, U.S.Nuclear Regulatory Commission,Washington, DC 20555-0001. The guid-ance discusses, among other topics, theformats the NRC can accept, the use ofelectronic signatures, and the treat-ment of nonpublic information. If thecommunication is on paper, the signedoriginal must be sent. If a submissiondue date falls on a Saturday, Sunday,or Federal holiday, the next Federalworking day becomes the official duedate.

(b) Distribution requirements. Copies ofall correspondence, reports, and otherwritten communications concerningthe regulations In this part or indi-vidual license conditions must be sub-mitted to the persons listed below (ad-dresses for the NRC Regional Officesare listed in appendix D to part 20 ofthis chapter).

(1) Applications for amendment of per-mits and licenses; reports; and other com-munications. All written communica-tions (including responses to: genericletters, bulletins, information notices,regulatory information summaries, In-spection reports, and miscellaneous re-quests for additional information) thatare required of holders of operating li-censes or construction permits issuedpursuant to this part, must be sub-mitted as follows, except as otherwisespecified in paragraphs (b)(2) through(b)(7) of this section: to the NRC's Doc-ument Control Desk (if on paper, thesigned original), with a copy to the ap-propriate Regional Office, and a copyto the appropriate NRC Resident In-spector, if one has been assigned to thesite of the facility.

(2) Applications for permits and li-censes, and amendments to applications.Applications for construction permits,applications for operating licenses andamendments to either type of applica-tion must be submitted as follows, ex-cept as otherwise specified in para-graphs (b)(3) through (b)(7) in this sec-tion.

(i) Applications for licenses for facili-ties described in §50.21 (a) and (c) and

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Commission may specify in the con-struction permit the period for whichthe license will be issued if approvedpursuant to § 50.56. Licenses may be re-newed by the Commission upon the ex-piration of the period. Renewal of oper-ating licenses for nuclear power plantsis governed by 10 CFR part 54. Applica-tion for termination of license is to bemade pursuant to §50.82.

(b) Each license for a facility thathas permanently ceased operations,continues in effect beyond the expira-tion date to authorize ownership andpossession of the production or utiliza-tion facility, until the Commission no-tifies the licensee in writing that thelicense is terminated. During such pe-riod of continued effectiveness the li-censee shall-

(1) Take actions necessary to decom-mission and decontaminate the facilityand continue to maintain the facility,Including, where applicable, the stor-age, control and maintenance of thespent fuel, in a safe condition, and

(2) Conduct activities in accordancewith all other restrictions applicable tothe facility in accordance with theNRC regulations and the provisions ofthe specific 10 CFR part 50 license forthe facility.

[56 FR 64976, Dec. 13, 1991, as amended at 61FR 39300, July 29, 1996]

§50.52 Combining licenses.

The Commission may combine in asingle license the activities of an appli-cant which would otherwise be licensedseverally.

§50.53 Jurisdictional limitations.

No license under this part shall bedeemed to have been issued for activi-ties which are not under or within thejurisdiction of the United States.

[21 FR 355, Jan. 19, 1956, as amended at 43 FR6924, Feb. 17, 1978]

§ 50.54 Conditions of licenses.The following paragraphs with the

exception of paragraphs (r) and (gg) ofthis section are conditions in every nu-clear power reactor operating licenseissued under this part. The followingparagraphs with the exception of para-graph (r), (s), and (u) of this section areconditions in every combined license

§50.54

issued under part 52 of this chapter,provided, however, that paragraphs (i),(i-1), (j), (k), (1), (m), (n), (w), (x), (y),

and (z) of this section are only applica-ble after the Commission makes thefinding under §52.103(g) of this chapter.

(a)(1) Each nuclear power plant orfuel reprocessing plant licensee subjectto the quality assurance criteria in ap-pendix B of this part shall implement,under §50.34(b)(6)(ii) or §52.79 of thischapter, the quality assurance programdescribed or referenced in the safetyanalysis report, including changes tothat report. However, a holder of acombined license under part 52 of thischapter shall implement the qualityassurance program described or ref-erenced in the safety analysis reportapplicable to operation 30 days prior tothe scheduled date for the initial load-ing of fuel.

(2) Each licensee described in para-graph (a)(1) of this section shall, byJune 10, 1983, submit to the appropriateNRC Regional Office shown in appendixD of part 20 of this chapter the currentdescription of the quality assuranceprogram it is implementing for inclu-sion in the Safety Analysis Report, un-less there are no changes to the de-scription previously accepted by NRC.This submittal must identify changesmade to the quality assurance programdescription since the description wassubmitted to NRC. (Should a licenseeneed additional time beyond June 10,1983 to submit its current quality as-surance program description to NRC, itshall notify the appropriate NRC Re-gional Office in writing, explain whyadditional time is needed, and providea schedule for NRC approval showingwhen its current quality assurance pro-gram description will be submitted.)

(3) Each licensee described in para-graph (a)(1) of this section may make achange to a previously accepted qual-ity assurance program description in-cluded or referenced in the SafetyAnalysis Report without prior NRC ap-proval, provided the change does notreduce the commitments in the pro-gram description as accepted by theNRC. Changes to the quality assuranceprogram description that do not reducethe commitments must be submittedto the NRC in accordance with the re-quirements of §50.71(e). In addition to

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§ 50.54 10 CFR Ch. 1 (1-1-10 Editlon)

quality assurance program changes in-volving administrative improvementsand clarifications, spelling corrections,punctuation, or editorial items, the fol-lowing changes are not considered tobe reductions in commitment:

(i) The use of a QA standard approvedby the NRC which is more recent thanthe QA standard in the licensee's cur-rent QA program at the time of thechange;

(ii) The use of a quality assurance al-ternative or exception approved by anNRC safety evaluation, provided thatthe bases of the NRC approval are ap-plicable to the licensee's facility;

(iii) The use of generic organizationalposition titles that clearly denote theposition function, supplemented as nec-essary by descriptive text, rather thanspecific titles;

(iv) The use of generic organizationalcharts to Indicate functional relation-ships, authorities, and responsibilities,or, alternately, the use of descriptivetext;

(v) The elimination of quality assur-ance program information that dupli-cates language in quality assuranceregulatory guides and quality assur-ance standards to which the licensee iscommitted; and

(vi) Organizational revisions that en-sure that persons and organizationsperforming quality assurance functionscontinue to have the requisite author-ity and organizational freedom, includ-ing sufficient independence from costand schedule when opposed to safetyconsiderations.

(4) Changes to the quality assuranceprogram description that do reduce thecommitments must be submitted tothe NRC and receive NRC approvalprior to implementation, as follows:

(I) Changes made to the quality as-surance program description as pre-sented in the Safety Analysis Report orin a topical report must be submittedas specified in § 50.4.

(ii) The submittal of a change to theSafety Analysis Report quality assur-ance program description must includeall pages affected by that change andmust be accompanied by a forwardingletter identifying the change, the rea-son for the change, and the basis forconcluding that the revised programincorporating the change continues to

satisfy the criteria of appendix B ofthis part and the Safety Analysis Re-port quality assurance program de-scription commitments previously ac-cepted by the NRC (the letter need notprovide the basis for changes that cor-rect spelling, punctuation, or editorialitems).

(III) A copy of the forwarding letterIdentifying the change must be main-tained as a facility record for threeyears.

(iv) Changes to the quality assuranceprogram description Included or ref-erenced In the Safety Analysis Reportshall be regarded as accepted by theCommission upon receipt of a letter tothis effect from the appropriate review-ing office of the Commission or 60 daysafter submittal to the Commission,whichever occurs first.

(b) No rights to the special nuclearmaterial shall be conferred by the li-cense except as may be defined by thelicense.

(c) Neither the license, nor any rightthereunder, nor any right to utilize orproduce special nuclear material shallbe transferred, assigned, or disposed ofin any manner, either voluntarily orinvoluntarily, directly or indirectly,through transfer of control of the li-cense to any person, unless the Com-mission shall, after securing full infor-mation, find that the transfer is in ac-cordance with the provisions of the actand give its consent in writing.

(d) The license shall be subject tosuspension and to the rights of recap-ture of the material or control of thefacility reserved to the Commissionunder section 108 of the act in a stateof war or national emergency declaredby Congress.

(e) The license shall be subject torevocation, suspension, modification,or amendment for cause as provided inthe act and regulations, in accordancewith the procedures provided by theact and regulations.

(f) The licensee shall at any time be-fore expiration of the license, upon re-quest of the Commission, submit, asspecified in §50.4, written statements,signed under oath or affirmation, toenable the Commission to determinewhether or not the license should bemodified, suspended, or revoked. Ex-cept for information sought to verify

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licensee compliance with the currentlicensing basis for that facility, theNRC must prepare the reason or rea-sons for each information request priorto issuance to ensure that the burdento be imposed on respondents is justi-fied in view of the potential safety sig-nificance of the issue to be addressed inthe requested information. Each suchjustification provided for an evaluationperformed by the NRC staff must be ap-proved by the Executive Director forOperations or his or her designee priorto issuance of the request.

(g) The issuance or existence of thelicense shall not be deemed to waive, orrelieve the licensee from compliancewith, the antitrust laws, as specified insubsection 105a of the Act. In the eventthat the licensee should be found by acourt of competent jurisdiction to haveviolated any provision of such anti-trust laws in the conduct of the li-censed activity, the Commission maysuspend or revoke the license or takesuch other action with respect to it asshall be deemed necessary.

(h) The license shall be subject to theprovisions of the Act now or hereafterIn effect and to all rules, regulations,and orders of the Commission. Theterms and conditions of the licenseshall be subject to amendment, revi-sion, or modification, by reason ofamendments of the Act or by reason ofrules, regulations, and orders issued inaccordance with the terms of the act.

(I) Except as provided in §55.13 of thischapter, the licensee may not permitthe manipulation of the controls of anyfacility by anyone who is not a licensedoperator or senior operator as providedin part 55 of this chapter.

(i-1) Within 3 months after either theissuance of an operating license or thedate that the Commission makes thefinding under §52.103(g) of this chapterfor a combined license, as applicable,

§ 50.54

the licensee shall have in effect an op-erator requalification program. The op-erator requalification program must,as a minimum, meet the requirementsof §55.59(c) of this chapter. Notwith-standing the provisions of §50.59, the li-censee may not, except as specificallyauthorized by the Commission decreasethe scope of an approved operator re-qualification program.

(j) Apparatus and mechanisms otherthan controls, the operation of whichmay affect the reactivity or powerlevel of a reactor shall be manipulatedonly with the knowledge and consentof an operator or senior operator li-censed pursuant to part 55 of this chap-ter present at the controls.

(k) An operator or senior operator li-censed pursuant to part 55 of this chap-ter shall be present at the controls atall times during the operation of thefacility.

(1) The licensee shall designate indi-viduals to be responsible for directingthe licensed activities of licensed oper-ators. These individuals shall be li-censed as senior operators pursuant topart 55 of this chapter.

(m)(1) A senior operator licensed pur-suant to part 55 of this chapter shall bepresent at the facility or readily avail-able on call at all times during its op-eration, and shall be present at the fa-cility during initial start-up and ap-proach to power, recovery from an un-planned or unscheduled shut-down orsignificant reduction In power, and re-fueling, or as otherwise prescribed inthe facility license.

(2) Notwithstanding any other provi-sions of this section, by January 1,1984, licensees of nuclear power unitsshall meet the following requirements:

(i) Each licensee shall meet the min-imum licensed operator staffing re-quirements in the following table:

MINIMUM REQUIREMENTS 1 PER SHIFT FOR ON-SITE STAFFING OF NUCLEAR POWER UNITS BYOPERATORS AND SENIOR OPERATORS LICENSED UNDER 10 CFR PART 55

One unit Two units Three unitsNumber of nuclear Psto n n

power units operatIng P.osition One One Two Two Threecontrol control control control controlroom room rooms rooms rooms

N one ............................

One...........................

TWO......................

Senior Operator ................................................Operator ............................................................Senior Operator ................................................Operator ............................................................Senior Operator ................................................

22

2232

2233

3I24

33

3I243

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§50.54 10 CFR Ch. 1 (1-1-10 Edition)

MINIMUM REQUIREMENTS 1 PER SHIFT FOR ON-SITE STAFFING OF NUCLEAR POWER UNITS BYOPERATORS AND SENIOR OPERATORS LICENSED UNDER 10 CFR PART 55-Continued

One unit Two units Three unitsNumber of nuclear

power unite operating 2 Position One One Two Two Threecontrol control control control control

room morn rooms rooms rooms

O pera tor ............................................................ .............. 3 4 35 5Three ............. Senior Operator ............................................ 3 4

O p erato r ............................................................. .............. .............. .............. 5 a

I Temporary deviations from the numbers required by this table shall be in accordance with criteria established In the unit'stectnical specifications.

2For the purpose of this table, a nuclear power unit is considered to be operating when it Is In a mode other than cold shut-down or refueling as defined by the unit's technical specifications.

3The number of required licensed personnel when the operating nuclear power units are controled from a common controlroom are two senior operators and four operators.

(ii) Each licensee shall have at itssite a person holding a senior operatorlicense for all fueled units at the sitewho is assigned responsibility for over-all plant operation at all times there isfuel in any unit. If a single senior oper-ator does not hold a senior operator li-cense on all fueled units at the site,then the licensee must have at the sitetwo or more senior operators, who incombination are licensed as senior op-erators on all fueled units.

(iII) When a nuclear power unit is Inan operational mode other than coldshutdown or refueling, as defined bythe unit's technical specifications,each licensee shall have a person hold-ing a senior operator license for the nu-clear power unit in the control room atall times. In addition to this senior op-erator, for each fueled nuclear powerunit, a licensed operator or senior oper-ator shall be present at the controls atall times.

(iv) Each licensee shall have present,during alteration of the core of a nu-clear power unit (Including fuel loadingor transfer), a person holding a senioroperator license or a senior operator li-cense limited to fuel handling to di-rectly supervise the activity and, dur-ing this time, the licensee shall not as-sign other duties to this person.

(3) Licensees who cannot meet theJanuary 1, 1984 deadline must submitby October 1, 1983 a request for an ex-tension to the Director of the Office ofNuclear Regulation and demonstrategood cause for the request.

(n) The licensee shall not, except asauthorized pursuant to a constructionpermit, make any alteration in the fa-cility constituting a change from the

technical specifications previously in-corporated in a license or constructionpermit pursuant to §50.36 of this part.

(o) Primary reactor containments forwater cooled power reactors, otherthan facilities for which the certifi-cations required under §§50.82(a)(1) or52.110(a)(1) of this chapter have beensubmitted, shall be subject to the re-quirements set forth in appendix J tothis part.

(p)(1) The licensee shall prepare andmaintain safeguards contingency planprocedures in accordance with appen-dix C of part 73 of this chapter for af-fecting the actions and decisions con-tained in the Responsibility Matrix ofthe safeguards contingency plan. Thelicensee may not make a change whichwould decrease the effectiveness of aphysical security plan, or guard train-ing and qualification plan, or cyber se-curity plan prepared under §50.34(c) or§52.79(a), or part 73 of this chapter, orof the first four categories of informa-tion (Background, Generic PlanningBase, Licensee Planning Base, Respon-sibility Matrix) contained in a licenseesafeguards contingency plan preparedunder §50.34(d) or §52.79(a), or part 73 ofthis chapter, as applicable, withoutprior approval of the Commission. A li-censee desiring to make such a changeshall submit an application for amend-ment to the licensee's license under§ 50.90.

(2) The licensee may make changes tothe plans referenced In paragraph (p)(1)of this section, without prior Commis-sion approval if the changes do not de-crease the safeguards effectiveness ofthe plan. The licensee shall maintainrecords of changes to the plans made

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without prior Commission approval fora period of 3 years from the date of thechange, and shall submit, as specifiedin §50.4 or §52.3 of this chapter, a re-port containing a description of eachchange within 2 months after thechange is made. Prior to the safeguardscontingency plan being put into effect,the licensee shall have:

(I) All safeguards capabilities speci-fied in the safeguards contingency planavailable and functional;

(1i) Detailed procedures developed ac-cording to appendix C to part 73 of thischapter available at the licensee's site;and

(Iii) All appropriate personneltrained to respond to safeguards inci-dents as outlined in the plan and speci-fied in the detailed procedures.

(3) The licensee shall provide for thedevelopment, revision, implementa-tion, and maintenance of its safeguardscontingency plan. The licensee shallensure that all program elements arereviewed by individuals independent ofboth security program managementand personnel who have direct respon-sibility for implementation of the secu-rity program either:

(1) At intervals not to exceed 12months; or

(11) As necessary, based on an assess-ment by the licensee against perform-ance indicators, and as soon as reason-ably practicable after a change occursin personnel, procedures, equipment, orfacilities that potentially could ad-versely affect security, but no longerthan 12 months after the change. Inany case, all elements of the safeguardscontingency plan must be reviewed atleast once every 24 months.

(4) The review must include a reviewand audit of safeguards contingencyprocedures and practices, an audit ofthe security system testing and main-tenance program, and a test of thesafeguards systems along with commit-ments established for response by locallaw enforcement authorities. The re-suits of the review and audit, alongwith recommendations for improve-ments, must be documented, reportedto the licensee's corporate and plantmanagement, and kept available at theplant for inspection for a period of 3years.

§ 50.54

(q) A holder of a nuclear power reac-tor operating license under this part,or a combined license under part 52 ofthis chapter after the Commissionmakes the finding under §52.103(g) ofthis chapter, shall follow and maintainin effect emergency plans which meetthe standards in §50.47(b) and the re-quirements in appendix E of this part.A licensee authorized to possess and/oroperate a research reactor or a fuel fa-cility shall follow and maintain in ef-fect emergency plans which meet therequirements in appendix E to thispart. The licensee shall retain theemergency plan and each change thatdecreases the effectiveness of the planas a record until the Commission ter-minates the license for the nuclearpower reactor. The nuclear power reac-tor licensee may make changes tothese plans without Commission ap-proval only if the changes do not de-crease the effectiveness of the plansand the plans, as changed, continue tomeet the standards of §50.47(b) and therequirements of appendix E to thispart. The research reactor and/or thefuel facility licensee may makechanges to these plans without Com-mission approval only if these changesdo not decrease the effectiveness of theplans and the plans, as changed, con-tinue to meet the requirements of ap-pendix E to this part. This nuclearpower reactor, research reactor, or fuelfacility licensee shall retain a record ofeach change to the emergency planmade without prior Commission ap-proval for a period of 3 years from thedate of the change. Proposed changesthat decrease the effectiveness of theapproved emergency plans may not beimplemented without application toand approval by the Commission. Thelicensee shall submit, as specified in§ 50.4, a report of each proposed changefor approval. If a change is made with-out approval, the licensee shall submit,as specified in §50.4, a report of eachchange within 30 days after the changeis made.

(r) Each licensee who is authorized topossess and/or operate a research ortest reactor facility with an authorizedpower level greater than or equal to 2MW thermal, under a licensee of thetype specified in § 50.21(c), shall submitemergency plans complying with 10

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950.54

CFR part 50, appendix E, to the Direc-tor of the Office of Nuclear ReactorRegulation for approval by September7, 1982. Each licensee who is authorizedto possess and/or operate a research ortest reactor facility with an authorizedpower level less than 2 MW thermal,under a license of the type specified in§50.21(c), shall submit emergency planscomplying with 10 CFR part 50, appen-dix E, to the Director of the Office ofNuclear Reactor Regulation for ap-proval by November 3, 1982.

(s)(1) Each licensee who is authorizedto possess and/or operate a nuclearpower reactor shall submit to NRCwithin 60 days of the effective date ofthis amendment the radiological emer-gency response plans of State and localgovernmental entities in the UnitedStates that are wholly or partiallywithin a plume exposure pathway EPZ,as well as the plans of State govern-ments wholly or partially within an in-gestion pathway EPZ.1.2 These plansmust be forwarded to the Director ofNuclear Reactor Regulation, by appro-priate method listed in §50.4, with acopy to the Administrator of the ap-propriate NRC regional office. Gen-erally, the plume exposure pathwayEPZ for nuclear power reactors shallconsist of an area about 10 miles (16km) in radius and the ingestion path-way EPZ shall consist of an area about50 miles (80 km) in radius. The exactsize and configuration of the EPZs fora particular nuclear power reactorshall be determined in relation to localemergency response needs and capabili-ties as they are affected by such condi-tions as demography, topography, landcharacteristics, access routes, and ju-risdictional boundaries. The size of theEPZs also may be determined on acase-by-case basis for gas-cooled nu-clear reactors and for reactors with an

'Emergency Planning Zones (EPZs) arediscussed in NUREG-0396; EPA 520/1-78-016,"Planning Basis for the Development ofState and Local Government RadiologicalEmergency Response Plans in Support ofLight Water Nuclear Power Plants," Decem-ber 1978.

3If the State and local emergency responseplans have been previously provided to theNRC for inclusion in the facility docket, theapplicant need only provide the appropriatereference to meet this requirement.

10 CFR Ch. 1 (1-1-10 Edltion)

authorized power level less than 250MW thermal. The plans for the inges-tion pathway EPZ shall focus on suchactions as are appropriate to protectthe food ingestion pathway.

(2)(1) For operating power reactors,the licensee, State, and local emer-gency response plans shall be imple-mented by April 1, 1981, except as pro-vided in section IV.D.3 of appendix E tothis part.

(ii) If after April 1, 1981, the NRCfinds that the state of emergency pre-paredness does not provide reasonableassurance that adequate protectivemeasures can and will be taken in theevent of a radiological emergency(including findings based on requirementsof appendix E, section IV.D.3) and if thedeficiencies (including deficiencies basedon requirements of appendix E, sectionIV.D.3) are not corrected within fourmonths of that finding, the Commis-sion will determine whether the reac-tor shall be shut down until such defi-ciencies are remedied or whether otherenforcement action is appropriate. Indetermining whether a shutdown orother enforcement action is appro-priate, the Commission shall take intoaccount, among other factors, whetherthe licensee can demonstrate to theCommission's satisfaction that the de-ficiencies in the plan are not signifi-cant for the plant in question, or thatadequate interim compensating actionshave been or will be taken promptly, orthat there are other compelling rea-sons for continued operation.

(3) The NRC will base its finding on areview of the FEMA findings and deter-minations as to whether State andlocal emergency plans are adequateand capable of being implemented, andon the NRC assessment as to whetherthe licensee's emergency plans are ade-quate and capable of being imple-mented. Nothing in this paragraphshall be construed as limiting the au-thority of the Commission to take ac-tion under any other regulation or au-thority of the Commission or at anytime other than that specified in thisparagraph.

(t)(1) The licensee shall provide forthe development, revision, implemen-tation, and maintenance of its emer-gency preparedness program. The li-censee shall ensure that all program

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elements are reviewed by persons whohave no direct responsibility for theimplementation of the emergency pre-paredness program either:

(I) At intervals not to exceed 12months or,

(ii) As necessary, based on an assess-ment by the licensee against perform-ance indicators, and as soon as reason-ably practicable after a change occursin personnel, procedures, equipment, orfacilities that potentially could ad-versely affect emergency preparedness,but no longer than 12 months after thechange. In any case, all elements of theemergency preparedness program mustbe reviewed at least once every 24months.

(2) The review must include an eval-uation for adequacy of interfaces withState and local governments and of li-censee drills, exercises, capabilities,and procedures. The results of the re-view, along with recommendations forimprovements, must be documented,reported to the licensee's corporate andplant management, and retained for aperiod of 5 years. The part of the re-view involving the evaluation for ade-quacy of interface with State and localgovernments must be available to theappropriate State and local govern-ments.

(u) Within 60 days after the effectivedate of this amendment, each nuclearpower reactor licensee shall submit tothe NRC plans for coping with emer-gencies that meet standards in §50.47(b)and the requirements of appendix E tothis part.

(v) Each licensee subject to the re-quirements of Part 73 of this chaptershall ensure that Safeguards Informa-tion is protected against unauthorizeddisclosure in accordance with the re-quirements in §73.21 and the require-ments in § 73.22 or § 73.23 of this chap-ter, as applicable.

(w) Each power reactor licenseeunder this part for a production or uti-lization facility of the type describedin §50.21(b) or §50.22 shall take reason-able steps to obtain insurance availableat reasonable costs and on reasonableterms from private sources or to dem-onstrate to the satisfaction of the NRCthat it possesses an equivalent amountof protection covering the licensee'sobligation, in the event of an accident

§50.54

at the licensee's reactor, to stabilizeand decontaminate the reactor and thereactor station site at which the reac-tor experiencing the accident is lo-cated, provided that:

(1) The insurance required by para-graph (w) of this section must have aminimum coverage limit for each reac-tor station site of either $1.06 billion orwhatever amount of insurance is gen-erally available from private sources,whichever is less. The required insur-ance mubt clearly state that, as and tothe extent provided in paragraph (w)(4)of this section, any proceeds must bepayable first for stabilization of the re-actor and next for decontamination ofthe reactor and the reactor stationsite. If a licensee's coverage falls belowthe required minimum, the licenseeshall within 60 days take all reasonablesteps to restore its coverage to the re-quired minimum. The required insur-ance may, at the option of the licensee,be included within policies that alsoprovide coverage for other risks, in-cluding, but not limited to, the risk ofdirect physical damage.

(2)(i) With respect to policies issuedor annually renewed on or after April 2,1991, the proceeds of such required in-surance must be dedicated, as and tothe extent provided in this paragraph,to reimbursement or payment on be-half of the insured of reasonable ex-penses incurred or estimated to be in-curred by the licensee in taking actionto fulfill the licensee's obligation, inthe event of an accident at the licens-ee's reactor, to ensure that the reactoris in, or is returned to, and maintainedin, a safe and stable condition and thatradioactive contamination is removedor controlled such that personnel expo-sures are consistent with the occupa-tional exposure limits in 10 CFR part20. These actions must be consistentwith any other obligation the licenseemay have under this chapter and mustbe subject to paragraph (w)(4) of thissection. As used in this section, an"accident" means an event that in-volves the release of radioactive mate-rial from its intended place of confine-ment within the reactor or on the reac-tor station site such that there is apresent danger of release off site inamounts that would pose a threat tothe public health and safety.

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§50.54

(1i) The stabilization and decon-tamination requirements set forth inparagraph (w)(4) of this section mustapply uniformly to all insurance poli-cies required under paragraph (w) ofthis section.

(3) The licensee shall report to theNRC on April 1 of each year the cur-rent levels of this insurance or finan-cial security it maintains and thesources of this insurance or financialsecurity.

(4)(i) In the event of an accident atthe licensee's reactor, whenever the es-timated costs of stabilizing the li-censed reactor and of decontaminatingthe reactor and the reactor station siteexceed $100 million, the proceeds of theinsurance required by paragraph (w) ofthis section must be dedicated to andused, first, to ensure that the licensedreactor is in, or is returned to, and canbe maintained in, a safe and stable con-dition so as to prevent any significantrisk to the public health and safetyand, second, to decontaminate the re-actor and the reactor station site in ac-cordance with the licensee's cleanupplan as approved by order of the Direc-tor of the Office of Nuclear ReactorRegulation. This priority on insuranceproceeds must remain in effect for 60days or, upon order of the Director, forsuch longer periods, in Increments notto exceed 60 days except as provided foractivities under the cleanup plan re-quired in paragraphs (w)(4)(iii) and(w)(4)(iv) of this section, as the Direc-tor may find necessary to protect thepublic health and safety. Actions need-ed to bring the reactor to and maintainthe reactor in a safe and stable condi-tion may include one or more of thefollowing, as appropriate:

(A) Shutdown of the reactor;(B) Establishment and maintenance

of long-term cooling with stable decayheat removal;

(C) Maintenance of sub-criticality;(D) Control of radioactive releases;

and(E) Securing of structures, systems,

or components to minimize radiationexposure to onsite personnel or to theoffsite public or to facilitate later de-contamination or both.

(1i) The licensee shall inform the Di-rector of the Office of Nuclear ReactorRegulation in writing when the reactor

10 CFR Ch. 1 (1-1-10 EdMtion)

is and can be maintained in a safe andstable condition so as to prevent anysignificant risk to the public healthand safety. Within 30 days after the li-censee informs the Director that thereactor is in this condition, or at suchearlier time as the licensee may elector the Director may for good cause di-rect, the licensee shall prepare and sub-mit a cleanup plan for the Director'sapproval. The cleanup plan must iden-tify and contain an estimate of thecost of each cleanup operation thatwill be required to decontaminate thereactor sufficiently to permit the li-censee either to resume operation ofthe reactor or to apply to the Commis-sion under §50.82 for authority to de-commission the reactor and to sur-render the license voluntarily. Cleanupoperations may include one or more ofthe following, as appropriate:

(A) Processing any contaminatedwater generated by the accident and bydecontamination operations to removeradioactive materials;

(B) Decontamination of surfaces in-side the auxiliary and fuel-handlingbuildings and the reactor building tolevels consistent with the Commis-sion's occupational exposure limits in10 CFR part 20, and decontamination ordisposal of equipment;

(C) Decontamination or removal anddisposal of internal parts and damagedfuel from the reactor vessel; and

(D) Cleanup of the reactor coolantsystem.

(iii) Following review of the licens-ee's cleanup plan, the Director willorder the licensee to complete all oper-ations that the Director finds are nec-essary to decontaminate the reactorsufficiently to permit the licensee ei-ther to resume operation of the reactoror to apply to the Commission under§50.82 for authority to decommissionthe reactor and to surrender the li-cense voluntarily. The Director shallapprove or disapprove, in whole or inpart for stated reasons, the licensee'sestimate of cleanup costs for such oper-ations. Such order may not be effectivefor more than 1 year, at which time itmay be renewed. Each subsequent re-newal order, if imposed, may be effec-tive for not more than 6 months.

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(iv) Of the balance of the proceeds ofthe required insurance not already ex-pended to place the reactor in a safeand stable condition pursuant to para-graph (w)(2)(i) of this section, anamount sufficient to cover the ex-penses of completion of those decon-tamination operations that are thesubject of the Director's order shall bededicated to such use, provided that,upon certification to the Director ofthe amounts expended previously andfrom time to time for stabilization anddecontamination and upon further cer-tification to the Director as to the suf-ficiency of the dedicated amount re-maining, policies of insurance may pro-vide for payment to the licensee orother loss payees of amounts not sodedicated, and the licensee may pro-ceed to use in parallel (and not in pref-erence thereto) any insurance proceedsnot so dedicated for other purposes.

(x) A licensee may take reasonableaction that departs from a license con-dition or a technical specification (con-tained in a license issued under thispart) in an emergency when this actionis immediately needed to protect thepublic health and safety and no actionconsistent with license conditions andtechnical specifications that can pro-vide adequate or equivalent protectionis immediately apparent.

(y) Licensee action permitted byparagraph (x) of this section shall beapproved, as a minimum, by a licensedsenior operator, or, at a nuclear powerreactor facility for which the certifi-cations required under §50.82(a)(1) havebeen submitted, by either a licensedsenior operator or a certified fuel han-dler, prior to taking the action.

(z) Each licensee with a utilizationfacility licensed pursuant to sections103 or 104b. of the Act shall imme-diately notify the NRC Operations Cen-ter of the occurrence of any event spec-ified in §50.72 of this part.

(aa) The license shall be subject toall conditions deemed imposed as amatter of law by sections 401(a)(2) and401(d) of the Federal Water PollutionControl Act, as amended (33 U.S.C.A.1341 (a)(2) and (d).)

(bb) For nuclear power reactors li-censed by the NRC, the licensee shall,within .2 years following permanentcessation of operation of the reactor or

§ 50.54

5 years before expiration of the reactoroperating license, whichever occursfirst, submit written notification tothe Commission for its review and pre-liminary approval of the program bywhich the licensee intends to manageand provide funding for the manage-ment of all irradiated fuel at the reac-tor following permanent cessation ofoperation of the reactor until title tothe irradiated fuel and possession ofthe fuel is transferred to the Secretaryof Energy for its ultimate disposal in arepository. Licensees of nuclear powerreactors that have permanently ceasedoperation by April 4, 1994 are requiredto submit such written notification byApril 4, 1996. Final Commission reviewwill be undertaken as part of any pro-ceeding for continued licensing underpart 50 or part 72 of this chapter. Thelicensee must demonstrate to NRC thatthe elected actions will be consistentwith NRC requirements for licensedpossession of irradiated nuclear fueland that the actions will be imple-mented on a timely basis. Where imple-mentation of such actions requiresNRC authorizations, the licensee shallverify in the notification that submit-tals for such actions have been or willbe made to NRC and shall identifythem. A copy of the notification shallbe retained by the licensee as a recorduntil expiration of the reactor oper-ating license. The licensee shall notifythe NRC of any significant changes inthe proposed waste management pro-gram as described in the initial notifi-cation.

(cc)(1) Each licensee shall notify theappropriate NRC Regional Adminis-trator, in writing, immediately fol-lowing the filing of a voluntary or in-voluntary petition for bankruptcyunder any chapter of title 11 (Bank-ruptcy) of the United States Code by oragainst:

(I) The licensee;(ii) An entity (as that term is defined

in 11 U.S.C. 101(14)) controlling the li-censee or listing the license or licenseeas property of the estate; or

(iii) An affiliate (as that term is de-fined in 11 U.S.C. 101(2)) of the licensee.

(2) This notification must indicate:(I) The bankruptcy court in which

the petition for bankruptcy was filed;and

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§50.54

(ii) The date of the filing of the peti-tion.

(dd) A licensee may take reasonableaction that departs from a license con-dition or a technical specification (con-tained in a license issued under thispart) in a national security emergency:

(1) When this action is immediatelyneeded to implement national securityobjectives as designated by the na-tional command authority through theCommission, and

(2) No action consistent with licenseconditions and technical specificationsthat can meet national security objec-tives is immediately apparent.A national security emergency is es-tablished by a law enacted by the Con-gress or by an order or directive Issuedby the President pursuant to statutesor the Constitution of the UnitedStates. The authority under this para-graph must be exercised in accordancewith law, including section 57e of theAct, and is in addition to the authoritygranted under paragraph (x) of this sec-tion, which remains in effect unlessotherwise directed by the Commissionduring a national security emergency.

(ee)(1) Each license issued under thispart authorizing the possession of by-product and special nuclear materialproduced in the operation of the li-censed reactor includes, whether statedin the license or not, the authorizationto receive back that same material, inthe same or altered form or combinedwith byproduct or special nuclear ma-terial produced in the operation of an-other reactor of the same licensee lo-cated at that site, from a licensee ofthe Commission or an AgreementState, or from a non-licensed entityauthorized to possess the material.

(2) The authorizations in this sub-section are subject to the same limita-tions and requirements applicable tothe original possession of the material.

(3) This paragraph does not authorizethe receipt of any material recoveredfrom the reprocessing of Irradiatedfuel.

(ff) For licensees of nuclear powerplants that have implemented theearthquake engineering criteria in ap-pendix S to this part, plant shutdown Isrequired as provided in paragraphIV(a)(3) of appendix S to this part.Prior to resuming operations, the li-

10 CFR Ch. 1 (1-1-10 EdIflon)

censee shall demonstrate to the Com-mission that no functional damage hasoccurred to those features necessaryfor continued operation without unduerisk to the health and safety of thepublic and the licensing basis is main-tained.

(gg)(1) Notwithstanding 10 CFR52.103, if following the conduct of theexercise required by paragraph rV.f.2.aof appendix E to part 50 of this chapter,DHS identifies one or more deficienciesin the state of offsite emergency pre-paredness, the holder of a combined li-cense under 10 CFR part 52 may oper-ate at up to 5 percent of rated thermalpower only if the Commission findsthat the state of onsite emergency pre-paredness provides reasonable assur-ance that adequate protective meas-ures can and will be taken in the eventof a radiological emergency. The NRCwill base this finding on its assessmentof the applicant's onsite emergencyplans against the pertinent standardsin §50.47 and appendix E to this part.Review of the applicant's emergencyplans will include the following stand-ards with offsite aspects:

(I) Arrangements for requesting andeffectively using offsite assistance on-site have been made, arrangements toaccommodate State and local staff atthe licensee's near-site Emergency Op-erations Facility have been made, andother organizations capable of aug-menting the planned onsite responsehave been identified.

(Gi) Procedures have been establishedfor licensee communications withState and local response organizations,including initial notification of thedeclaration of emergency and periodicprovision of plant and response statusreports.

(iii) Provisions exist for prompt com-munications among principal responseorganizations to offsite emergency per-sonnel who would be responding onsite.

(iv) Adequate emergency facilitiesand equipment to support the emer-gency response onsite are provided andmaintained.

(v) Adequate methods, systems, andequipment for assessing and moni-toring actual or potential offsite con-sequences of a radiological emergencycondition are in use onsite.

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(vi) Arrangements are made for med-ical services for contaminated and in-jured onsite individuals.

(vii) Radiological emergency re-sponse training has been made avail-able to those offsite who may be calledto assist in an emergency onsite.

(2) The condition in this paragraph,regarding operation at up to 5 percentpower, ceases to apply 30 days afterDHS informs the NRC that the offsitedeficiencies have been corrected, unlessthe NRC notifies the combined licenseholder before the expiration of the 30-day period that the Commission findsunder paragraphs (s)(2) and (3) of thissection that the state of emergencypreparedness does not provide reason-able assurance that adequate protec-tive measures can and will be taken inthe event of a radiological emergency.

(hh) (1) Each licensee shall develop,implement and maintain proceduresthat describe how the licensee will ad-dress the following areas if the licenseeis notified of a potential aircraftthreat:

(i) Verification of the authenticity ofthreat notifications;

(ii) Maintenance of continuous com-munication with threat notificationsources;

(iii) Contacting all onsite personneland applicable offsite response organi-zations;

(iv) Onsite actions necessary to en-hance the capability of the facility tomitigate the consequences of an air-craft impact;

(v) Measures to reduce visual dis-crimination of the site relative to Itssurroundings or individual buildingswithin the protected area;

(vi) Dispersal of equipment and per-sonnel, as well as rapid entry into siteprotected areas for essential onsite per-sonnel and offsite responders who arenecessary to mitigate the event; and

(vii) Recall of site personnel.(2) Each licensee shall develop and

implement guidance and strategies in-tended to maintain or restore corecooling, containment, and spent fuelpool cooling capabilities under the cir-cumstances associated with loss oflarge areas of the plant due to explo-sions or fire, to include strategies inthe following areas:

(1) Fire fighting;

§50.55

(0i) Operations to mitigate fuel dam-age; and

(iii) Actions to minimize radiologicalrelease.

(3) This section does not apply to anuclear power plant for which the cer-tifications required under §50.82(a) or§52.110(a)(1) of this chapter have beensubmitted.

[21 FR 355. Jan. 19, 1956]

EDrrORIAL NOTE: For FEDERAL REGISTER ci-tations affecting §50.54, see the List of CFRSections Affected, which appears In theFinding Aids section of the printed volumeand on GPO Access.

§ 50.55 Conditions of construction per-mits, early site permits, combinedlicenses, and manufacturing li-censes.

Each construction permit is subjectto the following terms and conditions;each early site permit is subject to theterms and conditions in paragraph (f)of this section; each manufacturing li-cense is subject to the terms and condi-tions in paragraphs (e) and (f) of thissection; and each combined license issubject to the terms and conditions inparagraphs (e) and (f) of this sectionuntil the date that the Commissionmakes the finding under §52.103(g) ofthis chapter:

(a) The construction permit shallstate the earliest and latest dates forcompletion of the construction ormodification.

(b) If the proposed construction ormodification of the facility is not com-pleted by the latest completion date,the construction permit shall expireand all rights are forfeited. However,upon good cause shown, the Commis-sion will extend the completion datefor a reasonable period of time. TheCommission will recognize, amongother things, developmental problemsattributable to the experimental na-ture of the facility or fire, flood, explo-sion, strike, sabotage, domestic vio-lence, enemy action, an act of the ele-ments, and other acts beyond the con-trol of the permit holder, as a basis forextending the completion date.

(c) Except as modified by this sectionand §50.55a, the construction permitshall be subject to the same conditionsto which a license Is subject.

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Subpart A-National Environ-mental Policy Act-Regula-tions Implementing Section102(2)

§51.10 Purpose and scope of subpart;application of regulations of Coun-oil on Environmental Quality.

(a) The National Environmental Pol-icy Act of 1969, as amended (NEPA) di-rects that, to the fullest extent pos-sible: (1) The policies, regulations, andpublic laws of the United States shallbe interpreted and administered In ac-cordance with the policies set forth inNEPA, and (2) all agencies of the Fed-eral Government shall comply with theprocedures in section 102(2) of NEPAexcept where compliance would be in-consistent with other statutory re-quirements. The regulations in thissubpart implement section 102(2) ofNEPA in a manner which is consistentwith the NRC's domestic licensing andrelated regulatory authority under theAtomic Energy Act of 1954, as amend-ed, the Energy Reorganization Act of1974, as amended, and the Uranium MillTailings Radiation Control Act of 1978,and which reflects the Commission'sannounced policy to take account ofthe regulations of the Council on Envi-ronmental Quality published November29, 1978 (43 FR 55978-56007) voluntarily,subject to certain conditions. This sub-part does not apply to export licensingmatters within the scope of part 110 ofthis chapter nor does it apply to anyenvironmental effects which NRC's do-mestic licensing and related regulatoryfunctions may have upon the environ-ment of foreign nations.

(b) The Commission recognizes a con-tinuing obligation to conduct its do-mestic licensing and related regulatoryfunctions in a manner which is both re-ceptive to environmental concerns andconsistent with the Commission's re-sponsibility as an independent regu-latory agency for protecting the radio-logical health and safety of the public.Accordingly, the Commission will:

(1) Examine any future interpreta-tion or change to the Council's NEPAregulations;

(2) Follow the provisions of 40 CFR1501.5 and 1501.6 relating to lead agen-cies and cooperating agencies, exceptthat the Commission reserves the right

§51.10

to prepare an independent environ-mental impact statement whenever theNRC has regulatory jurisdiction overan acitivity even though the NRC hasnot been designated as lead agency forpreparation of the statement; and

(3) Reserve the right to make a finaldecision on any matter within theNRC's regulatory authority eventhough another agency has made apredecisional referral of an NRC actionto the Council under the procedures of40 CFR part 1504.

(c) The regulations in this subpart'also address the limitations imposed onNRC's authority and responsibilityunder the National Environmental Pol-icy Act of 1969, as amended, by the Fed-eral Water Pollution Control ActAmendments of 1972, Pub. L. 92-600, 86Stat. 816 et seq. (33 U.S.C. 1251 et seq.) Inaccordance with section 511(c)(2) of theFederal Water Pollution Control Act(86 Stat. 893, 33 U.S.C 1371(c)(2)) theNRC recognizes that responsibility forFederal regulation of nonradiologicalpollutant discharges 2 into receivingwaters rests by statute with the Envi-ronmental Protection Agency.

(d) Commission actions initiating orrelating to administrative or judicialcivil or criminal enforcement actionsor proceedings are not subject to Sec-tion 102(2) of NEPA. These actions in-clude issuance of notices of violation,orders, and denials of requests for ac-tion pursuant to subpart B of part 2 ofthis chapter; matters covered by part15 and part 160 of this chapter; andissuance of confirmatory action let-ters, bulletins, generic letters, notices

1 See also Second Memorandum of Under-standing Regarding Implementation of Cer-tain NRC and EPA Responsibilities and Pol-Icy Statement on Implementation of Section511 of the Federal water Pollution ControlAct (FWPCA) attached as Appendix A there-to, which were published in the FEDERALREGISTER on December 31, 1975 (40 FR 60115)and became effective January 30, 1976.

2 0n June 1, 1976, the U.S. Supreme Courtheld that "'pollutants' subject to regulationunder the FWPCA [Federal Water PollutionControl Act] do not include source, byprod-uct, and special nuclear materials,...'Train v. Colorado PIRG, 426 U.S. 1 at 25.

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§51.11

of deviation, and notices of non-conformance.

[49 FR 9381, Mar. 12, 1984, as amended at 54FR 43578, Oct. 26, 1989; 61 FR 43408, Aug. 22,1996)

§51.11 Relationship to other subparts.[Reserved]

§ 51.12 Application of subpart to ongo-ing environmental work.

(a) Except as otherwise provided inthis section, the regulations in thissubpart shall apply to the fullest ex-tent practicable to NRC's ongoing envi-ronmental work.

(b) No environmental report or anysupplement to an environmental reportfiled with the NRC and no environ-mental assessment, environmental Im-pact statement or finding of no signifi-cant impact or any supplement to anyof the foregoing issued by the NRC be-fore June 7, 1984, need be redone and nonotice of intent to prepare an environ-mental impact statement or notice ofavailability of these environmentaldocuments need be republished solelyby reason of the promulgation onMarch 12, 1984, of this revision of part51.

[49 FR 9381, Mar. 12, 1984, as amended at 49FR 24513, June 14, 1984]

§51.13 Emergencies.

Whenever emergency circumstancesmake it necessary and whenever, inother situations, the health and safetyof the public may be adversely affectedif mitigative or remedial actions aredelayed, the Commission may take anaction with significant environmentalimpact without observing the provi-sions of these regulations. In taking anaction covered by this section, theCommission will consult with theCouncil as soon as.feasible concerningappropriate alternative NEPA arrange-ments.

§ 51.14 Definitions.(a) As used in this subpart:Categorical Exclusion means a cat-

egory of actions which do not individ-ually or cumulatively have a signifi-cant effect on the human environmentand which the Commission has foundto have no such effect in accordancewith procedures set out in §51.22, and

10 CFR Ch. 1 (1-1-10 Edition)

for which, therefore, neither an envi-ronmental assessment nor an environ-mental impact statement is required.

Cooperating Agency means any Fed-eral agency other than the NRC whichhas jurisdiction by law or special ex-pertise with respect to any environ-mental impact involved in a proposal(or a reasonable alternative) for legis-lation or other major Federal actionsignificantly affecting the quality ofthe human environment. By agreementwith the Commission, a State or localagency of similar qualifications or,when the effects are on a reservation,an Indian Tribe, may become a cooper-ating agency.

Council means the Council on Envi-ronmental Quality (CEQ) establishedby Title II of NEPA.

DOE means the U.S. Department ofEnergy or its duly authorized rep-resentatives.

Environmental Assessment means aconcise public document for which theCommission is responsible that servesto:

(1) Briefly provide sufficient evidenceand analysis for determining whetherto prepare an environmental impactstatement or a finding of no significantimpact.

(2) Aid the Commission's compliancewith NEPA when no environmental im-pact statement is necessary.

(3) Facilitate preparation of an envi-ronmental impact statement when oneis necessary.

Environmental document includes anenvironmental assessment, an environ-mental impact statement, a finding ofno significant impact, an environ-mental report and any supplements toor comments upon those documents,and a notice of intent.

Environmental Impact Statement meansa detailed written statement as re-quired by section 102(2)(C) of NEPA.

Environmental report means a docu-ment submitted to the Commission byan applicant for a permit, license, orother form of permission, or an amend-ment to or renewal of a permit, licenseor other form of permission, or by a pe-titioner for rulemaking, in order to aidthe Commission in complying with sec-tion 102(2) of NEPA.

Finding of No Significant Impactmeans a concise public document for

10

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§ 51.41

telephone (301) 415-7800, [email protected].

(3) Materials licenses: ATTN: Docu-ment Control Desk, Director, Office ofNuclear Material Safety and Safe-guards, U.S. Nuclear Regulatory Com-mission, Washington, DC 20555-0001,telephone (301) 415-7800, [email protected].

(4) Rulemaking: ATTN: Chief, Rulesand Directives Branch, Office of Ad-ministration, U.S. Nuclear RegulatoryCommission, Washington, DC 20555-0001, telephone (800) 368-5642, [email protected].

(5) General Environmental Matters: Ex-ecutive Director for Operations, U.S.Nuclear Regulatory Commission,Washington, DC 20555, Telephone: (301)415-1700.

[49 FR 9381, Mar. 12, 1984, as amended at 53FR 13399, Apr. 25, 1988; 60 FR 24552, May 9,1995; 68 FR 58810, Oct. 10, 2003; 73 FR 5724,Jan. 31, 2008]

§51.41 Requirement to submit envi-ronmental information.

The Commission may require an ap-plicant for a permit, license, or otherform of permission, or amendment toor renewal of a permit, license or otherform of permission, or a petitioner forrulemaking to submit such informa-tion to the Commission as may be use-ful in aiding the Commission in com-plying with section 102(2) of NEPA. TheCommission will independently evalu-ate and be responsible for the reli-ability of any information which ituses.

ENVIRONMENTAL REPORTS--GENERALREQUIREMENTS

§51.45 Environmental report.

(a) General. As required by §§51.50,51.53, 51.54, 51.55, 51.60, 51.61, 51.62, or51.68, as appropriate, each applicant orpetitioner for rulemaking shall submitwith its application or petition forrulemaking one signed original of aseparate document entitled "Appli-cant's" or "Petitioner's EnvironmentalReport," as appropriate. An applicantor petitioner for rulemaking may sub-mit a supplement to an environmentalreport at any time.

(b) Environmental considerations. Theenvironmental report shall contain a

10 CFR Ch. 1 (1-1-10 Edition)

description of the proposed action, astatement of its purposes, a descriptionof the environment affected, and dis-cuss the following considerations:

(1) The impact of the proposed actionon the environment. Impacts shall bediscussed in proportion to their signifi-cance;

(2) Any adverse environmental effectswhich cannot be avoided should theproposal be implemented;

(3) Alternatives to the proposed ac-tion. The discussion of alternativesshall be sufficiently complete to aidthe Commission in developing and ex-ploring, pursuant to section 102(2)(E) ofNEPA, "appropriate alternatives torecommended courses of action in anyproposal which involves unresolvedconflicts concerning alternative uses ofavailable resources." To the extentpracticable, the environmental impactsof the proposal and the alternativesshould be presented in comparativeform;

(4) The relationship between localshort-term uses of man's environmentand the maintenance and enhancementof long-term productivity; and

(5) Any irreversible and irretrievablecommitments of resources which wouldbe involved in the proposed actionshould it be implemented.

(c) Analysis. The environmental re-port must include an analysis that con-siders and balances the environmentaleffects of the proposed action, the envi-ronmental impacts of alternatives tothe proposed action, and alternativesavailable for reducing or avoiding ad-verse environmental effects. An envi-ronmental report prepared at the earlysite permit stage under §51.50(b), lim-ited work authorization stage under§51.49, construction permit stage under§51.50(a), or combined license stageunder §51.50(c) must include a descrip-tion of impacts of the preconstructionactivities performed by the applicantat the proposed site (i.e., those activi-ties listed in paragraphs (2)(1) through(2)(x) in the definition of "construc-tion" contained in §51.4), necessary tosupport the construction and operationof the facility which is the subject ofthe early site permit, limited work au-thorization, construction permit, orcombined license application. The envi-ronmental report must also contain an

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analysis of the cumulative impacts ofthe activities to be authorized by thelimited work authorization, construc-tion permit, or combined license inlight of the preconstruotion impactsdescribed in the environmental report.Except for an environmental reportprepared at the early site permit stage,or an environmental report prepared atthe license renewal stage under§51.53(o), the analysis in the environ-mental report should also include con-sideration of the economic, technical,and other benefits and costs of the pro-posed action and its alternatives. Envi-ronmental reports prepared at the li-cense renewal stage under §51.53(c)need not discuss the economic or tech-nical benefits and costs of either theproposed action or alternatives exceptif these benefits and costs are either es-sential for a determination regardingthe inclusion of an alternative in therange of alternatives considered or rel-evant to mitigation. In addition, envi-ronmental reports prepared under§51.53(c) need not discuss issues not re-lated to the environmental effects ofthe proposed action and its alter-natives. The analyses for environ-mental reports shall, to the fullest ex-tent practicable, quantify the variousfactors considered. To the extent thatthere are important qualitative consid-erations or factors that cannot bequantified, those considerations or fac-tors shall be discussed in Qualitativeterms. The environmental reportshould contain sufficient data to aidthe Commission In its development ofan independent analysis.

(d) Status of compliance. The environ-mental report shall list all Federal per-mits, licenses, approvals and other en-titlements which must be obtained inconnection with the proposed actionand shall describe the status of compli-ance with these requirements. The en-vironmental report shall also include adiscussion of the status of compliancewith applicable environmental qualitystandards and requirements including,but not limited to, applicable zoningand land-use regulations, and thermaland other water pollution limitationsor requirements which have been im-posed by Federal, State, regional, andlocal agencies having responsibility forenvironmental protection. The discus-

§ 51.49

sion of alternatives in the report shallinclude a discussion of whether the al-ternatives will comply with such appli-cable environmental quality standardsand requirements.

(e) Adverse information. The informa-tion submitted pursuant to paragraphs(b) through (d) of this section shouldnot be confined to information sup-porting the proposed action but shouldalso include adverse information.[49 FR 9381, Mar. 12, 1984, as amended at 61FR 28486, June 5, 1996; 61 FR 66542, Dec. 18,1996; 68 FR 58810, Oct. 10, 2003; 72 FR 49511,Aug. 28, 2007; 72 FR 57443, Oct. 9, 2007; 73 FR22787. Apr. 28, 2008]

ENVIRONMENTAL REPORTS--PRODUCTIONAND UTILIZATION FACILITIES

§ 51.49 Environmental report-limitedwork authorization.

(a) Limited work authorization sub-mitted as part of complete constructionpermit or combined license application.Each applicant for a construction per-mit or combined license applying for alimited work authorization under§50.10(d) of this chapter in a completeapplication under 10 CFR 2.101(a)(1)through (a)(4), shall submit with Its ap-plication a separate document, enti-tled, "Applicant's Environmental Re-port--Limited Work AuthorizationStage," which is in addition to the en-vironmental report required by §51.50of this part. Each environmental reportmust also contain the following infor-mation:

(1) A description of the activities pro-posed to be conducted under the lim-ited work authorization;

(2) A statement of the need for theactivities; and

(3) A description of the environ-mental impacts that may reasonablybe expected to result from the activi-ties, the mitigation measures that theapplicant proposes to implement toachieve the level of environmental Im-pacts described, and a discussion of thereasons for rejecting mitigation meas-ures that could be employed by the ap-plicant to further reduce environ-mental impacts.

(b) Phased application for limited workauthorization and construction permit orcombined license. If the constructionpermit or combined license application

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§51.68 10 CFR Ch. I (1-1-10 EdMtion)

manner of submission.) The statementshall include, among the alternativesunder consideration, denial of a licenseor construction authorization by theCommission.

(b) Under applicable provisions oflaw, the Department of Energy may berequired to supplement its final envi-ronmental impact statement if itmakes a substantial change in its pro-posed action that is relevant to envi-ronmental concerns or determines thatthere are significant new cir-cumstances or information relevant toenvironmental concerns and bearing onthe proposed action or its impacts. TheDepartment shall submit any supple-ment to its final environmental impactstatement to the Commission. (See§60.22 or §63.22 of this chapter as to therequired time and manner of submis-sion.)

(c) Whenever the Department of En-ergy submits a final environmental im-pact statement, or a final supplementto an environmental impact statement,to the Commission pursuant to thissection, it shall also inform the Com-mission of the status of any civil ac-tion for judicial review initiated pursu-ant to section 119 of the Nuclear WastePolicy Act of 1982. This status report,which the Department shall updatefrom time to time to reflect changes instatus, shall:

(1) State whether the environmentalimpact statement has been found bythe courts of the United States to beadequate or inadequate; and

(2) Identify any issues relating to theadequacy of the environmental impactstatement that may remain subject tojudicial review.

(54 FR 27870, July 3, 1989, as amended at 66FR 55791, Nov. 2, 2001]

ENVIRONMENTAL REPORTS-RULEMAKING

§ 51.68 Environmental report-rule-making.

Petitioners for rulemaking request-ing amendments of parts 30, 31, 32, 33,34, 35, 36, 39, 40 or part 70 of this chap-ter concerning the exemption from li-censing and regulatory requirements ofor authorizing general licenses for anyequipment, device, commodity or otherproduct containing byproduct mate-rial, source material or special nuclear

material shall submit with the petitiona separate document entitled "Peti-tioner's Environmental Report," whichshall contain the information specifiedin § 51.45.

[68 FR 58811, Oct. 10, 2003]

ENVIRONMENTAL IMPACT STATEMENTS

DRAFT ENVIRONMENTAL IMPACTSTATEMENTS---GENERAL REQUIREMENTS

§ 51.70 Draft environmental impactstatement--general.

(a) The NRC staff will prepare a draftenvironmental impact statement assoon as practicable after publication ofthe notice of intent to prepare an envi-ronmental impact statement and com-pletion of the scoping process. To thefullest extent practicable, environ-mental impact statements will be pre-pared concurrently or integrated withenvironmental impact analyses and re-lated surveys and studies required byother Federal law.

(b) The draft environmental impactstatement will be concise, clear andanalytic, will be written in plain lan-guage with appropriate graphics, willstate how alternatives considered in itand decisions based on it will or willnot achieve the requirements of sec-tions 101 and 102(1) of NEPA and of anyother relevant and applicable environ-mental laws and policies, will identifyany methodologies used and sources re-lied upon, and will be supported by evi-dence that the necessary environ-mental analyses have been made. Theformat provided in section 1(a) of ap-pendix A of this subpart should beused. The NRC staff will independentlyevaluate and be responsible for the re-liability of all information used in thedraft environmental impact statement.

(c) The Commission will cooperatewith State and local agencies to thefullest extent possible to reduce dupli-cation between NEPA and State andlocal requirements, in accordance with40 CFR 1506.2 (b) and (c).

§51.71 Draft environmental impact

statement--contents.

(a) Scope. The draft environmentalimpact statement will be prepared inaccordance with the scope decided uponin the scoping process required by

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§§51.26 and 61.29. As appropriate and tothe extent required by the scope, thedraft statement will address the topicsin paragraphs (b), (c), (d) and (e) of thissection and the matters specified in§§51.45, 51.50, 51.51, 51.52, 51.53, 51.54,51.61 and 51.62.

(b) Analysis of major points of view. Tothe extent sufficient information isavailable, the draft environmental im-pact statement will include consider-ation of major points of view con-cerning the environmental impacts ofthe proposed action and the alter-natives, and contain an analysis of sig-nilficant problems and objections raisedby other Federal, State, and localagencies, by any affected Indian tribes,and by other interested persons.

(c) Status of compliance. The draft en-vironmental Impact statement will listall Federal permits, licenses, approv-als, and other entitlements which mustbe obtained in implementing the pro-posed action and will describe the sta-tus of compliance with those require-ments. If it is uncertain whether a Fed-eral permit, license, approval, or otherentitlement is necessary, the draft en-vironmental impact statement will soindicate.

(d) Analysis. Unless excepted in thisparagraph or §51.75, the draft environ-mental impact statement will includea preliminary analysis that considersand weighs the environmental effectsof the proposed action; the environ-mental impacts of alternatives to theproposed action; and alternativesavailable for reducing or avoiding ad-verse environmental effects and consid-eration of the economic, technical, andother benefits and costs of the proposedaction and alternatives and indicatewhat other interests and consider-ations of Federal policy, Including fac-tors not related to environmental qual-ity If applicable, are relevant to theconsideration of environmental effectsof the proposed action identified underparagraph (a) of this section. The draftsupplemental environmental impactstatement prepared at the license re-newal stage under §51.95(c) need notdiscuss the economic or technical bene-fits and costs of either the proposed ac-tion or alternatives except if benefitsand costs are either essential for a de-termination regarding the inclusion of

§51.71

an alternative in the range of alter-natives considered or relevant to miti-gation. In addition, the supplementalenvironmental impact statement pre-pared at the license renewal stage neednot discuss other issues not related tothe environmental effects of the pro-posed action and associated alter-natives. The draft supplemental envi-ronmental impact statement for li-cense renewal prepared under §51.95(c)will rely on conclusions as amplified bythe supporting information in theGEIS for issues designated as Category1 in appendix B to subpart A of thispart. The draft supplemental environ-mental impact statement must containan analysis of those issues identified asCategory 2 in appendix B to subpart Aof this part that are open for the pro-posed action. The analysis for all draftenvironmental impact statements will,to the fullest extent practicable, quan-tify the various factors considered. Tothe extent that there are importantqualitative considerations or factorsthat cannot be quantified, these con-siderations or factors will be discussedin qualitative terms. Considerationwill be given to compliance with envi-ronmental quality standards and re-quirements that have been imposed byFederal, State, regional, and localagencies having responsibility for envi-ronmental protection, including appli-cable zoning and land-use regulationsand water pollution limitations or re-quirements issued or imposed underthe Federal Water Pollution ControlAct. The environmental impact of theproposed action will be considered inthe analysis with respect to matterscovered by environmental qualitystandards and requirements irrespec-tive of whether a certification or li-cense from the appropriate authorityhas been obtained. 3 While satisfaction

3 Complisnce with the environmental qual-ity standards and requirements of the Fed-eral Water Pollution Control Act (imposedby EPA or designated permitting states) Isnot a substitute for, and does not negate therequirement for NRC to weigh all environ-mental effects of the proposed action, includ-ing the degradation, if any, of water quality,and to consider alternatives to the proposed

Continued

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§51.72 10 CFR Ch. I (1-1-10 Edltlon)

of Commission standards and criteriapertaining to radiological effects willbe necessary to meet the licensing re-quirements of the Atomic Energy Act,the analysis will, for the purposes ofNEPA, consider the radiological effectsof the proposed action and alter-natives.

(e) Effect of limited work authorization.If a limited work authorization wasissued either in connection with or sub-sequent to an early site permit, or inconnection with a construction permitor combined license application, thenthe environmental impact statementfor the construction permit or com-bined license application will not ad-dress or consider the sunk costs associ-ated with the limited work authoriza-tion.

(f) Preliminary recommendation. Thedraft environmental impact statementnormally will include a preliminaryrecommendation by the NRC staff re-specting the proposed action. This pre-liminary recommendation will be basedon the information and analysis de-scribed in paragraphs (a) through (d) ofthis section and §§51.75, 51.76, 51.80,51.85, and 51.95, as appropriate, and will

action that are available for reducing ad-verse effects. Where an environmental as-sessment of aquatic impact from plant dis-charges is available from the permitting au-thority, the NRC will consider the assess-ment In its determination of the magnitudeof environmental impacts for striking anoverall cost-benefit balance at the construc-tion permit and operating license and earlysite permit and combined license stages, andin Its determination of whether the adverseenvironmental impacts of license renewalare so great that preserving the option of li-cense renewal for energy planning decision-makers would be unreasonable at the licenserenewal stage. When no such assessment ofaquatic impacts is available from the per-mitting authority, NRC will establish on itsown, or in conjunction with the permittingauthority and other agencies having relevantexpertise, the magnitude of potential Im-pacts for striking an overall cost-benefit bal-ance for the facility at the construction per-mit and operating license and early site per-mit and combined license stages, and In itsdetermination of whether the adverse envi-ronmental impacts of license renewal are sogreat that preserving the option of licenserenewal for energy planning decision-makerswould be unreasonable at the license renewalstage.

be reached after considering the envi-ronmental effects of the proposed ac-tion and reasonable alternatives, 4 and,except for supplemental environmentalimpact statements for the operating li-cense renewal stage prepared pursuantto §51.95(c), after weighing the costsand benefits of the proposed action. Inlieu of a recommendation, the NRCstaff may indicate in the draft state-ment that two or more alternatives re-main under consideration.

[49 FR 9381, Mar. 12, 1984, as amended at 61FR 28488, June 5, 1996; 61 FR 66544, Dec. 18,1996; 72 FR 49514, Aug. 28, 2007; 72 FR 57445,Oct. 9, 2007)§51.72 Supplement to draft environ-

mental impact statement.

(a) The NRC staff will prepare a sup-plement to a draft environmental im-pact statement for which a notice ofavailability has been published in theFEDERAL REGISTER as provided In§ 51.117, if:

(1) There are substantial changes inthe proposed action that are relevantto environmental concerns; or

(2) There are significant new cir-cumstances or information relevant toenvironmental concerns and bearing onthe proposed action or its impacts.

(b) The NRC staff may prepare a sup-plement to a draft environmental im-pact statement when, In its opinion,preparation of a supplement will fur-ther the purposes of NEPA.

(c) The supplement to a draft envi-ronmental impact statement will beprepared and noticed in the same man-ner as the draft environmental impactstatement except that a scoping proc-ess need not be used.

§51.73 Request for comments on draftenvironmental impact statement.

Each draft environmental impactstatement and each supplement to a

4The consideration of reasonable alter-natives to a proposed action Involving nu-clear power reactors (e.g., alternative energysources) is Intended to assist the NRC inmeeting its NEPA obligations and does notpreclude any State authority from makingseparate determinations with respect tothese alternatives and in no way preempts,displaces, or affects the authority of Statesor other Federal agencies to address theseIssues.

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(1) managing the effects of aging dur-ing the period of extended operation onthe functionality of structures andcomponents that have been identifiedto require review under §54.21(a)(1); and

(2) time-limited aging analyses thathave been Identified to require reviewunder § 54.21(c).

(b) Any applicable requirements ofsubpart A of 10 CFR part 51 have beensatisfied.

(c) Any matters raised under §2.335have been addressed.

[60 FR 22491, May 8, 1995, as amended at 69FR 2279, Jan. 14, 2004]

§ 54.0 Matters not subject to a re-newal review.

(a) If the reviews required by §54.21(a) or (c) show that there is not reason-able assurance during the current li-cense term that licensed activities willbe conducted In accordance with theCLB, then the licensee shall take meas-ures under its current license, as ap-propriate, to ensure that the intendedfunction of those systems, structuresor components will be maintained inaccordance with the CLB throughoutthe term of its current license.

(b) The licensee's compliance withthe obligation under Paragraph (a) ofthis section to take measures under itscurrent license is not within the scopeof the license renewal review.

§ 54.31 Issuance of a renewed license.

(a) A renewed license will be of theclass for which the operating license orcombined license currently in effectwas issued.

(b) A renewed license will be issuedfor a fixed period of time, which is thesum of the additional amount of timebeyond the expiration of the operatinglicense or combined license (not to ex-ceed 20 years) that is requested in a re-newal application plus the remainingnumber of years on the operating li-cense or combined license currently ineffect. The term of any renewed licensemay not exceed 40 years.

(c) A renewed license will become ef-fective immediately upon its issuance,thereby superseding the operating li-cense or combined license previously ineffect. If a renewed license is subse-quently set aside upon further adminis-trative or judicial appeal, the oper-

§54.33

ating license or combined license pre-viously in effect will be reinstated un-less Its term has expired and the re-newal application was not filed in atimely manner.

(d) A renewed license may be subse-quently renewed in accordance with allapplicable requirements.[60 FR 22491, May 8, 1995, as amended at 72FR 49560, Aug. 28, 2007]

§ 54.33 Continuation of CLB and condi-tions of renewed license.

(a) Whether stated therein or not,each renewed license will contain andotherwise be subject to the conditionsset forth in 10 CFR 50.54.

(b) Each renewed license will beissued in such form and contain suchconditions and limitations, includingtechnical specifications, as the Com-mission deems appropriate and nec-essary to help ensure that systems,structures, and components subject toreview in accordance with §54.21 willcontinue to perform their intendedfunctions for the period of extended op-eration. In addition, the renewed li-cense will be issued in such form andcontain such conditions and limita-tions as the Commission deems appro-priate and necessary to help ensurethat systems, structures, and compo-nents associated with any time-limitedaging analyses will continue to per-form their intended functions for theperiod of extended operation.

(c) Each renewed license will includethose conditions to protect the envi-ronment that were imposed pursuantto 10 CFR 50.36b and that are part ofthe CLB for the facility at the time ofIssuance of the renewed license. Theseconditions may be supplemented oramended as necessary to protect theenvironment during the term of the re-newed license and will be derived frominformation contained In the supple-ment to the environmental report sub-mitted pursuant to 10 CFR part 51, asanalyzed and evaluated in the NRCrecord of decision. The conditions willidentify the obligations of the licenseein the environmental area, including,as appropriate, requirements for re-porting and recordkeeping of environ-mental data and any conditions andmonitoring requirements for the pro-tection of the nonaquatic environment.

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954.35

(d) The licensing basis for the re-newed license includes the CLB, as de-fined in §54.3(a); the inclusion in the li-censing basis of matters such as li-censee commitments does not changethe legal status of those matters unlessspecifically so ordered pursuant toparagraphs (b) or (c) of this section.

§54.35 Requirements during term of

renewed license.

During the term of a renewed license,licensees shall be subject to and shallcontinue to comply with all Commis-sion regulations contained In. 10 CFRparts 2, 19, 20, 21, 26, 30, 40, 50, 51, 52, 54,55, 70, 72, 73, and 100, and the appen-dices to these parts that are applicableto holders of operating licenses or com-bined licenses, respectively.

['72 FR 49560, Aug. 28, 2007]

§ 54.37 Additional records and record.keeping requirements.

(a) The licensee shall retain in anauditable and retrievable form for theterm of the renewed operating licenseor renewed combined license all infor-mation and documentation requiredby, or otherwise necessary to documentcompliance with, the provisions of thispart.

(b) After the renewed license isissued, the FSAR update required by 10CFR 50.71(e) must include any systems,structures, and components newlyidentified that would have been subjectto an aging management review orevaluation of time-limited aging anal-yses in accordance with §54.21. ThisFSAR update must describe how the ef-fects of aging will be managed suchthat the intended function(s) in §54.4(b)will be effectively maintained duringthe period of extended operation.

(60 FR 22491, May 8, 1995, as amended at 72FR 495W0, Aug. 28, 2007)

§ 54.41 Violations.

(a) The. Commission may obtain aninjunction or other court order to pre-vent a violation of the provisions of thefollowing acts-

(1) The Atomic Energy Act of 1954, asamended.

(2) Title II of the Energy Reorganiza-tion Act of 1974, as amended or

10 CFR Ch. 1 (1-1-10 Edition)

(3) A regulation or order issued pur-suant to those acts.

(b) The Commission may obtain acourt order for the payment of a civilpenalty imposed under Section 234 ofthe Atomic Energy Act-

(1) For violations of the following-(i) Sections 53, 57, 62, 63, 81, 82, 101,

103, 104, 107, or 109 of the Atomic En-ergy Act of 1954, as amended;

(11) Section 206 of the Energy Reorga-nization Act;

(iII) Any rule, regulation, or orderissued pursuant to the sections speci-fied in paragraph (b)(1)(i) of this sec-tion;

(iv) Any term, condition, or limita-tion of any license issued under thesections specified in paragraph (b)(1)(i)of this section.

(2) For any violation for which a li-cense may be revoked under Section186 of the Atomic Energy Act of 1954, asamended.

§54.43 Criminal penalties.

(a) Section 223 of the Atomic EnergyAct of 1954, as amended, provides forcriminal sanctions for willful viola-tions of, attempted violation of, or con-spiracy to violate, any regulationissued under sections 161b, 161i, or 161oof the Act. For purposes of section 223,all the regulations in part 54 are issuedunder one or more of sections 161b, 1611,or 161o, except for the sections listed inparagraph (b) of this section.

(b) The regulations in part 54 thatare not issued under Sections 161b, 1611,or 161o for the purposes of Section 223are as follows: §§54.1, 54.3, 54.4, 54.5,54.7, 54.9, 54.11, 54.15, 54.17, 54.19, 54.21,54.22, 54.23, 54.25, 54.27, 54.29, 54.31, 54.41,and 54.43.

PART 55-OPERATORS' LICENSES

Subpart A--General Provisions

Sec.55.1 Purpose.55.2 Scope.55.3 License requirements.55.4 Definitions.55.5 Communications.55.6 Interpretations.55.7 Additional requirements.55.8 Information collection requirements:

OMB approval.55.9 Completeness and accuracy of informa-

tion.

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EFFECTIVE OCTOBER 7, 1991ADOPTED RULE

AMENDMENT TO THE VERMONT WATER POLLUTION CONTROL REGULATIONS,CHAPTER 13

The following section is added to read:

Rule 13.12 GENERAL PERMIT RULES

A. Definitions

As used in these regulations the following terms shall have the meanings indicated belowunless a different meaning clearly appears from the context.

1. The term "Department" means the Department of Environmental Conservation 10V.S.A. §905 (a).

2. The term "general permit" means a permit issued under 10 V.S.A., § 1263authorizing a class of discharges with in a common geographic area, includingstate-wide, that share the same or substantially similar qualities such thatdischarges can be regulated by the same or similar permit conditions.

3. The term "individual permit" means a discharge permit issued under 10 V.S.A.,§1263 that authorizes a specific discharge and contains terms and conditions thatare specific to the discharge.

4. The term "non-contact cooling water" means water used to reduce temperaturethat does not come into direct contact with any raw material, intermediate product,waste product (other than heat) or finished product. Ground water that containstoxic or hazardous pollutants shall be excluded from use under this definition.Steam electric generating plants, as a category, are excluded from use under thisdefinition.

5. The term "non-polluting wastes" means those wastes that prior to treatment do nothave the potential to result in an undue adverse effect on any existing use,beneficial value or use, or the quality of the receiving water.

6. The term "Secretary" means the Secretary of the Agency of Natural Resources orhis authorized representative, 10 V.S.A. §1251(11).

7. The term "stormwater runoff' means natural precipitation that does not infiltrateinto the soil, including any material dissolved or suspended in such water.Stormwater runoff does not include wastes from combined sewer overflows.

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B. Applicability of General Permits

The Secretary may issue a general permit in accordance with the following:

1. Area - The general permit shall be written to cover a category of dischargesdescribed in 13.12 B(2) of these rules within any existing geographic area,including the entire state, for the purpose of carrying out these rules and toachieve the goals and purpose of Title 10 V.S.A.

2. Sources - General permits may be written to regulate within an existing

geographic area the following discharges:

(a) stormwater runoff or

(b) any category of discharges other than stormwater runoff, including noncontact cooling water, non polluting waster, or any category of dischargeswhich are adequately regulated by another permit, license or certificateissued under the authority of state or federal statute or regulation, providedthe discharges all:

i. involve the same or substantially similar types of operations;

ii. discharge the same types of wastes;

iii. require the same effluent limitations or operating conditions;

iv. require the same or similar monitoring, and;

v. in the opinion of the Secretary are more appropriately controlledunder a general permit than under individual permits.

C. Administration

1. Draft General Permits - The Secretary shall prepare a draft general permit inaccordance with the provisions of 13.12 B., F. and G. of these rules. TheSecretary shall provide notice of the draft general permit and the opportunity for apublic hearing in accord with section 13.3c.-i. of these rules.

2. Requirements for filing - Any person wishing to discharge wastes subject to ageneral permit shall file a notice on forms provided by the Secretary. Upon therequest of the Secretary any person who files a notice shall submit such additionalinformation that may be necessary to enable the Secretary to authorize thedischarge under the terms of a general permit. Each notice shall be accompaniedby a fee as specified by the Secretary and established by law.

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3. Authorization to Discharge - Upon issuance of the general permit, any personwishing to discharge wastes subject to the general permit shall be authorized to doso upon a determination by the Secretary that;

(a) the filings as required in section 13.C.2. of these rules are complete, and;

(b) the discharge is eligible for coverage under the terms and conditions of thegeneral permit.

4. Transfer of Authorization to Discharge - Any permittee may transfer theauthorization to discharge by submitting a notice of transfer to the Secretaiy. Thenotice shall be submitted 30 days prior to the proposed date of transfer and shallinclude the following:

(a) the name and address of the present permittee

(b) the name and address of the prospective permittee

(c) the proposed date of transfer

(d) a statement signed by the prospective permittee, stating that:

i. The conditions of the facility operation that contribute to, or affect,the discharge will not be materially different under the newownership;

ii. he/she has read and is familiar with the terms of the permit andagrees to comply with all the terms and conditions of the permit,and;

iii. he/she has adequate funding or other means to effect compliancewith all the terms of the permit.

5. Changes to a Permitted facility - The permittee shall notify the Secretary of anyplanned facility expansions or changes that result in new or increased dischargesof pollutants. The Secretary may require the permittee to submit additionalinformation on the proposed changes. The Secretary shall determine theappropriateness of continued inclusion under the general permit by the modifiedfacility.

6. Revocation of Authorization to Discharge - The Secretary may, after notice andopportunity for public hearing under 3 V.S.A. §814 revoke or suspend, in whole

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or in part, authorization to discharge under a general permit for cause, includingbut not limited to:

(a) Violation of any terms or conditions of the general permit;

(b) Obtaining a general permit by misrepresentation or failure to disclose fullyall relevant facts;

(c) A change in any condition that requires either a temporary or permanentreduction or elimination of the permitted discharge; and,

(d) Correction of violations of Vermont Water Quality Standards.

7. Modification of General Permits - After notice and opportunity for a publichearing pursuant to Section 13.3(c)-(i) of these rules the Secretary may modify ageneral permit for cause including but not limited to the following:

(a) The statutes or rules on which the general permit are based have beenchanged or,

(b) There is a change in any condition that requires redrafting or alteration ofthe boundaries of a designated geographic area or,

(c) The Secretary has received new information, not available at the time ofthe permit issuance, which indicates that the cumulative effects violate theVermont Quality Standards or,

(d) When required by the "reopener" conditions in a general permit or,

(e) To correct technical mistakes, such as errors in calculations or mistakeninterpretations of law made in determining permit conditions.

D. Requiring an Individual Permit

1. The Secretary may require any permittee authorized by a general permit to applyfor an individual discharge permit. Any interested person may petition theSecretary to take action under this paragraph. Cases where an individual permitmay be required include the following:

(a) The discharge(s) is a significant contributor of pollution as determined bythe following factors:

i. The location of the discharge with respect to waters of the State ofVermont;

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ii. the size of the discharge;

iii. the quantity and nature of the pollutants reaching waters of theState of Vermont and the impacts of the pollutants on the receivingwater and;

iv. other relevant factors

(b) The discharger is not in compliance with the terms and conditions of thegeneral permit or does not qualify for a general permit.

(c) A change has occurred in the availability of demonstrated technology orpractices for the control or abatement of wastes applicable to thedischarge.

(d) Federal effluent limitation guidelines are promulgated for dischargescovered by the general permit.

(e) If necessary to implement a waste management strategy contained inany applicable basin plan.

2. If the secretary finds that a permittee authorized by a general permit is required toapply for and individual permit the Secretary shall so notify the permittee. Thisnotice shall include a brief statement of the reasons for this decision, anapplication form, a statement setting a time for the permittee to file theapplication, and a statement that on the effective date of the individual permit thegeneral permit as it applied to the individual permittee shall automaticallyterminate. The Secretary may grant additional time upon request of the applicant.

3. When an individual permit is issued to a person otherwise subject to a generalpermit, the applicability of the general permit to the individual permittee isautomatically terminated on the effective date of the individual permit.

4. Any permittee authorized by a general permit may request to be excluded fromthe coverage of the general permit provided the permittee submits informationsupporting the request. If the Secretary finds that the terms and conditions of thegeneral permit do not apply to the discharge, or that the discharge is moreappropriately covered by an individual permit the Secretary shall grant the requestand shall so notify the permittee in writing of his/her decision. Upon receipt ofsuch notification, the permittee shall submit to the Secretary an application for anindividual permit. The application shall be processed under 13.1 - 13.10 of theseregulations. The applicability of the general permit is not terminated until theeffective date of the individual permit.

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E. Requiring a General Permit

1. The secretary may require any person applying for reissuance of an individualpermit to be subject to a general permit provided the Secretary finds the dischargecomplies with all conditions of the general permit and the discharge is moreappropriately covered under the general permit.

2. Any permittee subject to an individual permit and wishing to discharge wastessubject to a general permit may file a notice on forms provided by the Secretary.Upon the request of the Secretary, any person who files a notice shall submit suchadditional information that may be necessary to enable the Secretary to authorizethe discharge under the terms of a general permit. Each notice shall beaccompanied by a fee as specified by the Secretary and established by law.

3. Any permittee subject to an individual permit shall be authorized to dischargeunder the terms of a general permit upon:

(a) issuance of a notice by the Secretary authorizing the discharge under theterms of a general permit and;

(b) expiration of the individual permit under which the permittee waspreviously authorized to discharge.

F. General Conditions Applicable to All General Permits

1 . The following terms, conditions, requirements, limitations and restrictions setforth in this part are binding upon the permittee. All conditions for generalpermits are enforceable under Title 10 V.S.A. Chapter 47.

2. The Secretary shall issue a general permit containing terms and conditionsnecessary to carry out the purposes of the Vermont Water Pollution Control Act,10 V.S.A., Chapter 47, and the Clean Water Act as amended, including these setforth in the Sections 13.4, 13.5a and 13.6 of these rules. Those terms andconditions may include but shall not be limited to providing for specific effluentlimitations and levels of treatment technology, monitoring, recording, reportingstandards and may contain additional conditions and requirements as the Secretarydeems necessary to preserve and protect the quality of the receiving waters.

3. Violation - A general permit is valid only for the time and specific activityindicated. Any deviation from the specified activity and conditions forundertaking that activity or submission of false, incomplete or inaccurateinformation shall constitute a violation of the permit. A violation of the permitmay result in modification, suspension or revocation of the permittee'sauthorization to discharge under the general permit and may result in the

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institution of legal proceedings pursuant to Title 10 V.S.A. Chapter 47 § 1275 andtitle 10 V.S.A. Chapter 201 and 21.

4. Rights and Privileges - The general permit conveys no vested rights or exclusiveprivileges. The general permit conveys no title to land nor authorizes any injury topublic or private property. The general permit does not authorize infringement ofany applicable federal, state or local laws or regulations nor obviate the necessityof obtaining such additional permits as may be required.

5. Right of Entry - The permittee shall allow an authorized representative of theDepartment access to the permitted facility at reasonable times for the purpose ofinspection and testing to determine compliance with the general permit pursuantto Title 10 V.S.A. Chapter 37 §911.

6. Duty to Operate and Maintain - The permittee shall properly operate and maintainany permitted facility in good condition. The condition of the permitted facilityshall at no time contribute to a violation of the terms, conditions, requirements,limitations and restrictions specified by the general permit.

G. Conditions Applicable to General Permits for Stormwater Discharges NotwithstandingSection 13.5a of these rules, in the case of general permits for discharges of stormwaterthat are not regulated under the Federal Clean Water Act, as amended, the Secretary mayspecify the period of time for which the general permit is valid other than five yearswhere such time is consistent with the goals and purposes of Title 10 V.S.A. § 1264.

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ADOPTED C. JANUARY 17, 1974 PURSUANT TO 10 V.S.A. 9 1258(6)FILED WITH SECRETARY OF STATE FEBRUARY 26. 1974

VERMONT WATER POLLUTION CONTROL PERMIT REGULATIONS

13. PERMITS

13.1 Definitions.

As used in these regulations the following terms shall have the meanings

indicated below unless a different meaning clearly appears from the context:

(a) The term "Act" means Title 10, Chapter 47 of the Vermont

Statutes Annotated, as amended.

(b) The term "Agency" means the Vermont Agency of Environmental

Conservation.

(c) The term "Federal Act" means the Federal Water Pollution Control

Act, as amended, 33 U.S.C. 1251 et seq.

(d) The term "Refuse Act" means section 13 of the River and Harbor

Act of March 3, 1899.

(e) The term "EPA" means the U.S. Environmental Protection Agency.

(f) The term "Administrator" means the Administrator of EPA.

(g) The term "Regional Administrator" means the Regional

Administrator of EPA, Region I.

(h) The term "National Pollutant Discharge Elimination System

(NPDES)" means the national system for the issuance of permits under

section 402 of the Federal Act and includes the Vermont program after it

has been approved by the Administrator pursuant to section 402 of the

Federal Act.

(i) The term "incompatible substance" means any waste being

discharged into a publicly owned treatment works which interferes with,

passes through without treatment, or is otherwise incompatible with such

works or would have a substantial adverse affect on such works or on water

quality.

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(j) The term "well" shall include any openings in the ground used as

a means of discharging pollutants into the ground except for a dry hole

not exceeding seven feet in depth which is constructed as, and used solely

for, the gravity disposal of domestic sanitary waste.

(k) The term "application" means either (i)the uniform national

forms (including subsequent additions, revisions, or modifications duly

promulgated by the Administrator pursuant to the Federal Act) for

application for a permit, including a Refuse Act application, or (ii) the

forms prescribed by the Secretary for used in applying for issuance or

renewal of a permit.

(1) The term "reporting form" means the uniform national forms

(including subsequent additions, revisions, or modifications duly

promulgated by the Administrator pursuant to the Federal Act) for

reporting data and information pursuant to monitoring and other conditions

of permits.

Wm) The term "permit" means any permit or equivalent document or

requirements issued by the Administrator, or, where appropriate, by the

Secretary after enactment of the Federal Act to regulate the discharge of

pollutants pursuant to section 402 of the Federal Act, including a

discharge permit and a temporary pollution permit.

(n) The term "NPDES form" means any issued NPDES and any uniform

national form developed for use in the NPDES and prescribed in regulations

promulgated by the Administrator, including the Refuse Act application,

the NPDES application and the NPDES reporting forms or equivalent forms

prescribed by the Secretary.

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(o) The term "Refuse Act application" means the application for a

permit under the Refuse Act.

(p) The term "Refuse Act permit" means any permit issued under the

Refuse Act.

(q) The definitions of the following terms contained in section 502

of the Federal Act shall be applicable to such terms as used in this part:

(unless the context otherwise required) "interstate agency," "State,"

"municipality," "pollutant," "point source," "biological monitoring," and

"industrial use" and "pollution."

(r) The definitions of the following terms contained in section 1251

of the Act shall be applicable to such terms as used in these regulations:

(unless the context otherwise required: "discharge," "person," "waste,"

"waters," "effluent limitation," "schedule of compliance" and "Secretary."

(s) The term "treatment works" means any facility, method or system

for the storage, treatment recycling, or reclamation of municipal sewage

or industrial waste of a liquid nature, including waste in combined storm

water and sanitary sewer systems.

(t) The term "national data bank" means a facility or system

established or to be established by the Administrator for the purposes of

assembling, organizing, and analyzing data pertaining to water quality and

the discharge of pollutants.

(u) The term "applicable water quality standards" means all water

quality standards to which a discharge is subject under the Federal Act

or the Act and which have been (1) approved or permitted to remain in

effect by the Administrator pursuant to section 303(a)or 303(e) of

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the Federal Act, or (2).promulgated by the Administrator pursuant to

section 303(b) or 303(c) of the Federal Act.

(v) The term "applicable effluent standards and limitations" means

all Vermont and Federal effluent standards and limitation to which a

discharge is subject under the Act and the Federal Act including, but not

limited to, effluent limitations, standards of performance, toxic

effluent standards and prohibitions, and pretreatment standards.

(w) The term "minor discharge" means any discharge which (C) has a

total volume of less than 50,000 gallons on every day of the year,

(2)does not effect the waters of any other state, and (3) is not

identified by the Secretary, the Regional Administrator or by the

Administrator in regulations issued pursuant to section 307 (a) of the

Federal Act as a discharge which is not a minor discharge. If there is a

more than one discharge from a facility and the sum of the volumes of all

discharges from the facility exceeds 50,000 gallons on any day of the

year, then no discharge from the facility is a "minor discharge" as

defined herein.

(x) The term "discharge permit" means a permit issued pursuant to

section 1263 of the Act for a discharge which will not reduce the quality

of the receiving waters below the classification established for them and

which will not violate any state of federal laws or regulations.

(y) The term "temporary pollution permit" means a permit issued

pursuant to section 1265 of the Act for a discharge which is not eligible

for a discharge permit.

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13.2 Permit Application and Forms.

a. Requirements for FilinQ. Any person who is presently discharging any

waste, substance or material into the waters of the state or a well or who is

presently discharging any incompatible substance into a publicly owned

treatment works who has not previously filed with EPA or the Agency a

complete application with respect to such discharge shall file a complete

application with the Agency. A permit previously issued by the Agency or its

predecessor shall be revoked upon the happening of (i) the failure or

refusal of the holder of such permit to apply for a permit hereunder within

60 days of being requested to do so by the Secretary or (ii) the issuance of

a permit to such holder by the Agency.

b. Prorosed Discharges. Any person who wishes to discharge any waste,

substance or material into any waters of the state or who wishes to discharge

any incompatible substance into any publicly owned treatment works shall file

a complete application on the earlier of:

(1) at leat 180 days in advance of the date on which it is desired to

commence such discharge, or (2) sufficient time prior to the commencement of

the discharge of pollutants to insure compliance with the requirements of

section 306 of the Federal Act, or with any applicable zoning or siting

requirements established pursuant to section 208 (b) (2) (C) of'the Federal

Act, and any other applicable water quality standards and applicable effluent

standards and limitations.

c. Reauirement as to Completeness of Application. Any application submitted

to the Secretary shall be promptly forwarded by the Secretary to the Regional

Administrator. The Secretary shall not issue any permit on the basis of any

application which the Regional Administrator has

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identified as incomplete or otherwise deficient until the Secretary receives

additional information to correct any deficiency to the satisfaction of the

Secretary or of the Regional Administrator. The rights of the Regional

Administrator under this regulation and the procedures for implementing such

rights (including any waiver or partial waiver of such rights) may be set forth

in a written agreement between the Secretary and the Regional Administrator.

d. Furnishing of Additional Information. Within sixty days following a

request of the Secretary, a person who has filed an application shall furnish

the Secretary with such additional information as may be necessary to insure

that such application is complete or which may otherwise be necessary to enable

the Secretary to issue a permit for such discharge.

e. Signatures. Any form submitted to the Secretary shall be signed as

follows:

(1) In the case of corporations, by a principal executive officer of

at least the level of vice president, or his duly authorized representative,

if such representative is responsible for the overall operation of the

facility from which the discharge described in the form originates.

(2) In the case of a partnership, by a general partner.

(3) In the case of a sole proprietorship, by the proprietor.

(4) In the case of a municipal, State, or other public facility, by

either a principal executive officer, ranking elected official or other duly

authorized employee.

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13.3 Agency Processing of Completed Applications.

a. Determination as to Type of Permit. When an application for an

existing discharge is found to be complete, the Secretary shall make

determinations as to the type of permit to be issued. If the discharge will

neither (i) reduce the quality of the receiving waters below the

classification established for such waters nor (ii) violate any state or

federal laws or regulation, then the application shall be determined to be

an application for a discharge permit under section 1263 of the Act.

Otherwise, the application shall be determined to be an application for a

temporary pollution permit under section 1265 of the Act. Any such

temporary pollution permit shall contain the additional conditions set forth

in section 13.4(b) (3) of these regulations.

b. Formulation of Tentative Determination and Draft Permit.

(1) The Secretary shall formulate and prepare

tentative determinations with respect to an application in advance of

public notice of the proposed issuance or denial of a permit. Such

tentative determinations shall state whether the permit is a discharge

permit or a temporary pollution permit and shall include at least the

following:

(a) A proposed determination to issue or deny a permit for the

discharge described in the application; and,

(b) If the determination proposed in paragraph 1 of this section

is to issue the permit, the following additional tentative

determinations:

(i) Proposed effluent limitations, identified

pursuant to sections 13.4(b) and (c) for those pollutants proposed to

be limited;

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(ii) A proposed schedule of compliance, including

interim dates and requirements, for meeting the proposed effluent

limitations, identified pursuant to section 13.4(d);

(iii) A proposed set of periodic pollution

charges to be applied in the case of any temporary pollution

permit; and

(iv) A brief description of any other proposed

special conditions (other than those required in section 13.4 (e)

which will have a significant impact upon the discharge described

in the application.

(2) The Secretary shall organize the tentative

determinations prepared pursuant to paragraph (1) of this section into a

draft permit for the application.

c. Public Notice

(1) Public notice of every complete application for a

permit shall be circulated in a manner designed to inform interested and

potentially interested persons of the proposed discharge and of the

proposed determination to issue or deny a permit for the proposed

discharge. Procedures for a circulation of public notice shall include

at least the following:

(a) Notice shall be circulated within the geographical

areas of the proposed discharge; such circulation may include any or

all of the following:

(i) Posting in the post office and public

places of the municipality nearest the premises of the applicant

in which the effluent source is located;

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(ii) Posting near the entrance to the

applicant's premises and in nearby places; and

(iii) Publishing in local newspapers and

periodicals, or, if appropriate, in a daily newspaper of general

circulation;

(b) Notice shall be mailed to any person or group upon

request; and

(c) The Secretary shall add the name of any person or

group upon request to a mailing list to receive copies of notices for

all applications within Vermont or within a certain geographical area.

(2) The Secretary shall provide a period of not less

than thirty (30) days following the date of the public notice during

which time interested persons may submit their written views on the

tentative determinations with respect to the application. All written

comments submitted during the 30-day comment period shall be retained by

the Secretary and considered in the formulation of this final

determinations with respect to the application. The period for comment

may be extended at the discretion of the Secretary.

(3) The contents of public notice of applications for

permits shall include at least the following:

(a) Name, address, phone number of the Agency;

(b) Name and address of each applicant;

(c) Brief description of each applicant's activities

or operations which result in the discharge described in the

application (e.g., municipal waste treatment plant, steel

manufacturing, drainage from mining activities);

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(d) Name of waterway to which each discharge is made

and a short description of the location of each discharge on the

waterway indicating whether such discharge is a new or an existing

discharge;

(e) A statement of the tentative determination to

issue or deny a permit for the discharge described in the application;

(f) A brief description of the procedures for the

formulation of final determinations, including the 30-day comment

period required by paragraph (c) (2) of this section and any other

means by which interested persons may influence or comment upon those

determinations; and

(g) Address and phone number of Agency premises at

which interested persons may obtain further information, request a

copy of the draft permit prepared pursuant to section 13.3(b), request

a copy of the fact sheet described in section 13.3(d) and inspect any

copy forms and related documents.

d. Fact Sheets

(i) For every discharge which has a total volume of

more than 500,000 gallons on any day of the year, the Secretary shall

prepare and, following public notice, shall send, upon request to any

person a fact sheet with respect to the application described in the

public notice. The contents of such fact sheets shall include at least

the following information:

(a) A sketch or detailed description of the location

of the discharge described in the application;

(b) A quantitative description of the discharge

described in the application which includes at least the following:

(i) The rate of frequency of the proposed

discharge;

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if the discharge is continuous, the average daily flow in gallons

per day or million gallons per day;

(ii) For thermal discharges subject to limitation

under the Act or the Federal Act, the average summer and winter

temperatures in degrees Fahrenheit; and

(iii) The average daily discharge in pounds per

day of any pollutants which are present in significant quantities

or which are subject to limitations or prohibition under sections

301, 302, 306, 307 of the Federal Act and regulations published

thereunder;

(2) The tentative determinations required under section 13.3(b);

(3) A brief citation, including a brief identification of the uses for

which the receiving waters have been classified, of the water quality

standards and effluent standards and limitations applied to proposed

discharge; and

(4) A fuller description of the procedures for the

formulation of final determinations than that given in the public notice

including:

(i) The 30-day comment period required by 13.3 (b) (2);

(ii) Procedures for requesting a public hearing and the nature

thereof; and

(iii) Any other procedures by which the public may participate in

the formulation of the final determinations.

(5) The Secretary shall add the name of any person or group upon

request to a mailing list to receive copies of fact sheets. The Secretary

may charge a reasonable fee for copies of fact sheets, draft permits and

other documents.

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e. Notice of Other Government Agencies.

The Secretary shall notify other appropriate Government agencies of

each complete application for a permit and shall provide such agencies an

opportunity to submit their written views and recommendations. Procedures

for such notification shall include the following:

(1) At the time of issuance of public notice pursuant

to section 13.3(c) transmission of such notice and, in cases where a fact

sheet is required to be prepared, a fact sheet to any other States whose

waters may be affected by the issuance of a permit and, upon request,

providing such States with a copy of the application and a copy of the

proposed permit prepared pursuant to section 13.3 (b). Each affected

State shall be afforded an opportunity to submit written recommendations

to the Secretary and to the Regional Administrator which the Secretary may

incorporate into the permit if issued. Should the Secretary fail to

incorporate any written recommendations thus received, he shall provide to

the affected State or States (and to the Regional Administrator) a written

explanation of his reasons for failing to accept any of the written

recommendations.

(2) A procedure, similar to paragraph (1) of this

section, for notifying any interstate agency having water quality control

authority over waters which may be affected by the issuance of a permit.

(3) At the time of issuance of public notice pursuant to

section 13.3(c), transmission of such notice and, where a fact sheet is

required to be prepared, a fact sheet to the appropriate District Engineer

of the Army Corps of Engineers of applications for discharges

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(other than minor discharges) into navigable waters:

(a) The Secretary and the Corps of Engineers may enter into

written agreements providing for (i) notice to the District Engineer of

minor discharges, (ii) waiver by the Corps of Engineers of its right to

receive fact sheets with respect to classes, types, and sizes within

any category of point sources and with respect to discharges to

particular navigable waters or parts thereof and (iii) any procedures

for the transmission of forms, period for comment by the Corps of

Engineers and for objections of the Corps of Engineers.

(b) A written copy of any agreements between the Agency and the

Corps of Engineers shall be made available to the public for inspection

and copying.

(4) A procedure for mailing copies of the public notice (or upon

specific request, copies of fact sheets) for application for permits to

any other Federal, Vermont or local agency, or any affected country, upon

request, and providing such agencies an opportunity to respond, comment,

or request a public hearing pursuant to section 13.3(c). Such agencies

shall include at least the agency responsible for the preparation of an

approved plan pursuant to section 208(b) of the Federal Act.

(5) Procedures for notice to and coordination with

appropriate public health agencies for the purpose of assisting the

applicant in coordinating the applicable requirements of the Act or the

Federal Act with any applicable requirements of such public health

agencies.

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f. Public Access to Information.

(1) The Secretary shall insure that any forms

(including the draft permit prepared pursuant to section 13.3(b) (2) of

any public comment upon those forms pursuant to section 13.3(c) (2) shall

be available to the public for inspection and copying. The Secretary, in

his discretion may also make available to the public any other records,

reports, plans, or information obtained by the Agency.

(2) The Secretary shall protect any information (other

than effluent data) contained in such form, or other records, reports, or

plans as confidential upon showing by any person that such information if

made public would divulge methods or processes entitled to protection as

trade secrets of such person. If, however, the information being

considered for confidential treatment is contained in a form, the

Secretary shall forward such information to the Regional Administrator for

his concurrence in any determination of confidentiality pursuant to the

agreement between EPA and the Agency described in section 13.2(c).

(3) Any information accorded confidential status,

whether or not contained in a form, shall be disclosed, upon request, to

the Regional Administrator, or his authorized representative.

(4) The Secretary shall provide facilities for the

inspection of information relating to forms and shall insure that Agency

employees honor requests for such inspection promptly without undue

requirements or restrictions. The Secretary shall either (a) insure that

a machine or device for the copying of papers and documents is available

for a reasonable fee, or (b) otherwise provide for or

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coordinate with copying facilities or services such that requests for copies

of nonconfidential documents may be honored promptly.

g. Public Hearings

The Secretary shall provide an opportunity for the applicant, any

affected Vermont Agency, any affected interstate agency, any affected

country, the Regional Administrator, or any interested agency, person, or

group of persons to request or petition for a public hearing with respect

to applications. Any such request or petition for public hearing shall be

filed within the 30-day period prescribed in section 13.3(c) (2) and shall

indicate the interest of the party filing such request and the reasons why

a hearing is warranted. The Secretary shall hold a hearing if there is a

significant public interest (including the filing of requests or petitions

for such hearing) in holding such a hearing. Instances of doubt should be

resolved in favor of holding the hearing. Any hearing brought pursuant to

this subsection shall be held in the geographical area of the proposed

discharge or other appropriate area, in the discretion of the Secretary,

and may, as appropriate, consider related groups of permit applications.

h. Public Notice of Public Hearings.

(1) Public notice of any hearing held pursuant to

section 13.3(g) above shall be circulated at least as widely as was the

notice of the application. Procedures for the circulation of public

notice for hearings held under section 13.3(g) shall include at least the

following:

(a) Notice shall be published in at least one newspaper of

general circulation within the geographical area of the discharge;

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(b) Notice shall be sent to all persons and Government agencies

which received a copy of the notice or the fact sheet for the

application;

(c) Notice shall be mailed to any person or group upon request;

and

(d) Notice shall be effected pursuant to subparagraphs (a) and

(c) of this paragraph at least thirty (30) days in advance of the

hearing.

(2) The contents of public notice of any hearing held pursuant to

section 13.3(g) shall include at least the following:

(a) Name, address, and phone number of the Agency;

(b) Name, address of each applicant whose application will be

considered at the hearing;

(c) Name of waterway to which each discharge is made and a short

description of the location of each discharge on the waterway;

.(d) A brief reference to the public notice issued for each

application, including identification number and date of issuance;

(e) Information regarding the time and location for the hearing;

(f) The purpose of the hearing;

(g) A concise statement of the issues raised by the persons

requesting the hearing;

(h) Address and phone number of Agency premises at which

interested persons may obtain further information, request a copy of

each draft permit prepared pursuant to section 13.3(b)

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(2) above, request a copy of each fact sheet prepared pursuant to

section 13.3(d) and inspect and copy forms and related documents; and

(i) A brief description of the nature of the hearing,

including the rules and procedures to be followed.

13.3i PROCEDURE FOR PUBLIC HEARINGS

(1) Except as provided in paragraph (4) of this section, where the

Secretary finds a significant degree of public interest in a proposed permit

or group of permits, he shall hold a public hearing to consider such permit

or permits. Public notice of such hearing shall be given in a manner

specified in subsection (h) of this rule.

(2) Hearings held pursuant to this section shall be conducted by the

Secretary of his designee.

(3) Any person shall be permitted to submit oral or written statements

and data concerning the proposed permit. The Secretary shall have discretion

to fix reasonable limits on the time allowed for oral statements and may

require the submission of statements in writing.

(4) If the Secretary determines the useful information and data may be

obtained thereby, the Secretary may hold a public hearing anytime prior to

the issuance of the permit. Notice of a'public hearing pursuant to this

section shall be circulated 30 days prior to the hearing. The hearings shall

be conducted in a manner set forth in paragraphs (2) and (3) of this section.

All statements, comments and data presented at the hearing shall be retained

by the Secretary and considered in the formulation of his determination.

Where a public hearing is held pursuant to this paragraph, no public hearing

is required pursuant to paragraph (1) above.

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13.4 Terms and Conditions of Permits.

a. Prohibited Discharges. The Secretary shall not issue a permit

authorizing any of the following discharges:

(1) The discharge of any radiological, chemical, or biological warfare

agent or high-level radioactive waste into navigable waters;

(2) Any discharge which the Secretary of the Army acting through the

chief of engineers finds would substantially impair anchorage and navigation;

(3) Any discharge to which the Regional Administrator has objected in

writing pursuant to any right to object provided the Administrator in section

403(d) of the Federal Act; and

(4) Any discharge from a point source which is in conflict with a plan

or amendment thereto approved pursuant to section 208(b) of the Federal Act.

b. Application of State and Federal Requirements.

(1) The terms and conditions of each permit shall apply and insure

compliance with all of the following, whenever applicable:

(a) Effluent limitations under section 301 and 302 of

the Federal Act;

(b) Standards of performance for new sources under

section 306 of the Federal Act;

(c) Effluent standards, effluent prohibitions, and

pretreatment standards under section 307 of the Federal Act;

(d) Any more stringent limitation, including those

(i) necessary to meet water quality standards, treatment standards,

or schedules of compliance, established pursuant to Vermont

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law or regulations (under authority preserved by section 510 of the

Federal Act), or (ii) necessary to meet any other Federal law or

regulation, or (iii) required to implement any applicable water

quality standards, such limitations to include any legally applicable

requirements necessary to implement total maximum daily loads

established pursuant to section 303(d) and incorporated in the

continuing planning process approved under section 303(e) of the

Federal Act and any regulations and guidelines issued pursuant

thereto:

(e) Any more stringent legally applicable

requirements necessary to comply with a plan approved pursuant to

section 208(b) of the Federal Act; and

(f) Prior to promulgation by the Administrator of

applicable effluent standards and limitations pursuant to sections

301, 302, 306, and 307, such conditions as the Secretary determines

are necessary to carry out the provisions of the Federal Act;

(g) If the permit is for the discharge of

pollutants into the navigable waters from a vessel or other floating

craft, any applicable regulations promulgated by the Secretary of the

department in which the Coast Guard is operating, establishing

specifications for safe transportation, handling, carriage, storage,

and stowage of pollutants.

(2) In any case where a permit applies the effluent standards and

limitations described in subparagraphs (a), (b), (c) and (f) of paragraph

(1) of this section, the Secretary must state that the discharge

authorized by the permit will not violate applicable water

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quality standards and, if the Secretary deems it necessary, shall prepare

some explicit verification of that statement. In any case where

applicable water quality standards require a permit to contain effluent

limitations more stringent than those described in subparagraphs (a), (b),

(c) or (f) of paragraph 1 of this section, a waste load allocation must be

prepared where the Secretary deems necessary in order to ensure that the

discharge authorized by the permit is consistent with applicable water

quality standards.

(3) In addition to the terms and conditions of permits required

elsewhere by these regulations, a temporary pollution permit shall also:

(a) be for a fixed term, not to exceed five years, which is determined by

the Secretary to be the shortest period of time necessary for the

permittee to construct and place in operation the treatment facility,

system or method necessary to qualify the permittee for a discharge

permit, and (b) require the payment of the periodic pollution charges as

provided in section 1265(d) (5) of the Act.

c. Effluent Limitations in Issued Permits.

In the application of effluent standards and limitations, water

quality standards, and other legally applicable requirements, pursuant to

section 13.4(b) the Secretary shall, for each issued permit, specify

average and maximum daily quantitative limitations for the level of

pollutants in the authorized discharge in terms of weight (except pH,

temperature, radiation, and any other pollutants not appropriately

expressed by weight). The Secretary may, in his discretion, in

additional to the specification of daily quantitative limitations by

weight, specify other limitations, such as average or maximum

concentrated limits, for the level of

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pollutants in the authorized discharge. Effluent limitations for

multiproduct operations shall provide appropriate waste variations from

such plants. Where a schedule of compliance is included as a condition

in a permit, effluent limitations shall be included for the interim

period as well as for the period following the final compliance date.

d. Schedules of Compliance in Issued Permits.

In addition to the application of the effluent standards and

limitations, water quality standards, and other legally applicable

requirements, pursuant to section 13.4(b) the Secretary shall follow the

following procedures in setting schedules in permit conditions to achieve

compliance with applicable effluent standards and limitations, water

quality standards, and other legally applicable requirements.

(1) With respect to any discharge which is not in compliance with

applicable effluent standards and limitations, applicable water

quality standards, or other legally applicable requirements listed in

sections 13.4(b) (1) the permittee shall be required to take specific

steps to achieve compliance with the following:

(a) In accordance with any legally applicable schedule of

compliance contained in:

(i) Applicable effluent standards and limitations;

(ii) If more stringent, water quality standards; or,

(iii) If more stringent, legally applicable require-ments

listed in sections 13.4(b) (1).

(b) In the absence of any legally applicable schedule of

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compliance, in the shortest, reasonable period of time, such period to

be consistent with the guidelines and requirements of the Act and the

Federal Act.

(2) In any case where the period of time for compliance specified

in paragraph (1) of this section exceeds 9 months, a schedule of

compliance shall be specified in the permit which will set forth interim

requirements and the dates for their achievement; in no event shall more

than 9 months elapse between interim dates. If the time necessary for

completion of the interim requirement (such as the construction of a

treatment facility) is more than 9 months and is not readily divided into

stages for completion, interim dates shall be specified for the

submission of reports of progress towards completion of the interim

requirements. For each permit schedule of compliance, interim dates and

final date for compliance shall, to the extent practicable, fall on the

last day of the months of March, June, September, and December.

(3) Either before or up to fourteen (14) days following each

interim date and the final date of the compliance the permittee shall

provide the Secretary with written notice.of the permittee's compliance

or noncompliance with the interim or final requirement.

(4) On the last day of the months of February, May, August, and

November the Secretary shall transmit to the Regional Administrator a list

of all instances, as of 30 days prior to the date of such report, of

failure or refusal of a permittee to comply with an interim or final

requirement (as required pursuant to paragraph (2) of this section.) Such

list shall be available to the public for

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inspection and copying and shall contain at least the following information

with respect to each instance of noncompliance:

(a) Name and address of each noncomplying permittee;

(b) A short description of each instance of non-

compliance (e.g., failure to submit preliminary plans, 2 week delay in

commencement of construction of treatment facility; failure to notify

the Secretary of compliance with interim requirement to complete

construction by June 30th, etc.);

(c) A short description of any actions or proposed

actions by the permittee or the Secretary to comply or enforce

compliance with the interim or final requirement; and

(d) Any details which tend to explain or mitigate an

instance of noncompliance with an interim or final requirement (e.g.,

construction delayed due to materials shortage, plan approval delayed by

objections from a Vermont agency).

(5) If a permittee fails or refuses to comply with an interim or

final requirement in a permit such noncompliance shall constitute a

violation of the permit for which the Secretary may modify. suspend or

revoke the permit or take direct enforcement action.

e. Other Terms and Conditions of Issued Permits.In addition to the other requirements of these regulations the Secretary

shall insure that the terms and conditions of each issued permit provide for

and insure the following:

(1) That all discharges authorized by the permit shall be consistent

with the terms and conditions of the permit; that facility expansions,

production increases, or process modifications

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which result in new or increased discharges of pollutants must be reported

by submission of a new application or, if such discharge does not violate

effluent limitations specified in the permit, by submission to the

Secretary of notice of such new or increased discharges of pollutants; that

the discharge of any pollutant more frequently than or at a level in excess

of that identified and authorized by the permit shall constitute a

violation of the terms and conditions of the permit.

(2) That the permit may be modified, suspended, or revoked in whole

or in part during its term for cause including, but not limited to, the

following:

(a) Violation of any terms or conditions of the permit;

(b) Obtaining a permit by misrepresentation or failure to disclose

fully all relevant facts; and,

(c) A change in any condition that requires either a temporary or

permanent reduction or elimination of the permitted discharge.

(3) That the permittee shall permit the Secretary or his authorized

representative or the Regional Administrator or his authorized

representative upon the presentation of his credentials:

(a) To enter upon permittee's premises in which an effluent source

is located or in which any records are required to be kept under terms

and conditions of the permit;

(b) To have access to and copy any records required to be kept

under terms and conditions of the permit;

(c) To inspect any monitoring equipment or method required in the

permit; or

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(d) To sample any discharge of pollutants.

(4) That, if the permit is for a discharge from a publicly owned

treatment works, the permittee shall provide notice to the Secretary of the

following:

(a) Any new introduction of pollutants into such treatment works

from a source which would be a new source as defined in section 306 of

the Federal Act if such source were discharging pollutants;

(b) Except as to such categories and classes of point sources or

discharges specified by the Secretary, any new introducing of pollutants

into such treatment works from a source which would be subject to

section 301 of the Federal Act if such source were discharging

pollutants; and,

(c) Any substantial change in volume or character of pollutants

being introduced into such treatment works by a source introducing

pollutants into such works at the time of issuance of the permit. Such

notice shall include information on (i) the quality and quantity of

effluent to be introduced into such treatment works and (ii) any

anticipated impact of such change in the quantity or quality of effluent

to be discharged from such publicly owned treatment works.

(5) That, if the permit is for a discharge from a publicly owned

treatment works, the permittee shall require any industrial user of such

treatment works to comply with the requirements of section 204(b), 307 and

308 of the Federal Act. As a means of

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insuring such compliance, the permittee shall require of each industrial

user subject to the requirements of section 307 of the Federal Act, and

shall forward a copy to the Secretary, periodic notice (over intervals not

to exceed 9 months) of progress towards full compliance with section 307

requirements.

(6) That the permittee at all times shall maintain in good working

order and operate as efficiently as possible any facilities or systems of

control installed by the permittee to achieve compliance with the terms and

conditions of the permit.

(7) That if a toxic effluent standard or prohibition (including any

schedule of compliance specified in such effluent standard or prohibition)

is established under section 307(a) of the Federal Act for a toxic

pollutant which is present in the permittee's discharge and such standard

or prohibition is more stringent than any limitation upon such pollutant in

the permit, the Secretary shall revise or modify the permit in accordance

with the toxic effluent standard or prohibition and so notify the

premittee.

f. Transmittal of Proposed and Final Permits to Regional Administrator.

The Secretary shall transmit proposed and final permits to the

Regional Administrator according to such procedures as the Secretary and the

Regional Administrator shall agree upon in writing. Any such agreement may

provide for the manner in which the Regional Administrator may exercise his

rights to object to proposed permits pursuant to section 402(d) (2) of the

Federal Act.

g. The Secretary shall transmit to the Regional Administrator a copy of

every issued permit, immediately following issuance, along with

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any and all term, conditions, requirements, or documents which are a part of

such permit or which affect the authorization by the permit of the discharge

of pollutants.

13.5 Duration and Review of Permits.

a. Duration of Issued Permits.

Any issued permit shall have a fixed term not to exceed five years.

b. Reissuance of Permits.

(1) Any permittee who wishes to continue to discharge after the

expiration date of his permit must file an application for reissuance of

his permit at least 180 days prior to its expiration.

(2) The scope and manner of any review of an application for

reissuance of a permit shall insure at least the following:

(a) That the permittee is in compliance with or has

substantially complied with all the terms, conditions, requirements,

and schedules of compliance of the expired permit;

(b) That the Secretary has up-to-date information

on the permittee's production levels, permittee's waste treatment

practices, nature, contents and frequency of permittee's discharge

either pursuant to the submission of new forms and applications or

pursuant to monitoring records and reports submitted to the Secretary

by the permittee; and,

(c) That the discharge is consistent with applicable

effluent standards and limitations, water quality standards,

and other legally applicable requirements listed in section

13.4(b) including any additions to, or revisions or modifications of such

effluent standards and limitations, water quality standards,

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or other legally applicable requirements during the term of the permit.

(3) The Secretary shall follow the notice and public participation

procedures specified in section 13.3 in connection with each request for

reissuance of a permit.

(4) Notwithstanding any other provision in these regulations, any point

source the construction of which is commenced after October 18, 1972 which is

so constructed as to meet all applicable standards of performance pursuant to

section 306 of the Federal Act shall not be subject to any more stringent

standard of performance during a 10-year period beginning on the date of

completion of such construction or during the period of depreciation or

amortization of such facility for the purposes of section 167 or 169 (or

both) of the Internal Revenue Code of 1954 whichever period ends first.

13.6 Monitoring, Recording, and Reporting.

a. Monitoring.

(1) Any discharge authorized by a permit may be subject to such

monitoring requirements as may be reasonably required by the Secretary,

including the installation, use, and maintenance of monitoring equipment or

methods (including, where appropriate, biological monitoring methods).

(2) Any discharge authorized by a permit which (1) is not a minor

discharge, (2) the Regional Administrator requests, in writing, be

monitored, or (3) contains toxic pollutants for which an effluent

standard has been established by the Administrator pursuant to section

307 (a) of the Federal Act, shall be monitored

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by the permittee for at least the following:

(i) Flow (in gallons per day); and,

(ii) All of the following pollutants:

(a) Pollutants (either directly or indirectly

through the use of accepted correlation coefficients or equivalent

measurements) which are subject to reduction or elimination under

the terms and conditions of the permit;

(b) Pollutants which the Secretary finds, on the

basis of information available to him, could have a significant

impact on the quality of navigable waters;

(c) Pollutants specified by the Administrator, in

regulations issued pursuant to the Federal Act, as subject to

monitoring; and,

(d) Any pollutants in addition to the above which

the Regional Administrator requests, in writing, be monitored.

(3) Each effluent flow or pollutant required to be monitored

pursuant to paragraph (b) of this section shall be monitored at intervals

sufficiently frequent to yield data which reasonably characterizes the

nature of the discharge of the monitored effluent flow or pollutant.

Variable effluent flows and pollutant levels may be monitored at more

frequent intervals than relatively constant effluent- flows and pollutant

levels which may be monitored at less frequent intervals.

b. Recording of Monitoring Activities and Results.

.(I) The permittee shall maintain records of all information

resulting from any monitoring activities required of him in his permit;

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(2) Any records of monitoring activities and results shall include

for all samples: (a) the date, exact place, and time of sampling; (b) the

dates analyses were performed; (c) who performed the analyses; (d) the

analytical techniques/methods used; and (e) the results of such analyses;

and,

(3) The permittee shall be required to retain for a minimum of 3

years any records of monitoring activities and results including all

original strip chart recording for continuous monitoring instrumentation

and calibration and maintenance records. This period of retention shall

be extended during the course of any unresolved litigation regarding the

discharge of pollutants by the permittee or when requested by the

Secretary or Regional Administrator.

c. Reporting of Monitoring Results.

The Secretary shall require periodic reporting (at a frequency of not

less than once per year) on the proper reporting form of monitoring

results obtained by a permittee pursuant to monitoring requirements in

permit. In addition to the reporting form, the Secretary in his

discretion may require submission of such other information regarding

monitoring results as he determines to be necessary.

d. Monitoring, Recording, and Renorting Requirements.

The Secretary shall adopt procedures consistent with any national

monitoring, recording, and reporting requirements specified by the

Administrator in regulations issued pursuant to the Federal Act.

13.7 Emergency Pollution Permits.

a. Reciuirements for Application. In the event that a person to

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whom a discharge permit has been issued finds that pollution abatement

facilities require repairs, replacement or other corrective action in

order for them to meet standards specified in such discharge permit, such

person may make application in the manner specified by the Secretary for

an emergency modification of such discharge permit.

b. Secretary's Authority to Revise or Modify DischarQe Permits;

Imposition of Additional Reciuirements.

The Secretary may temporarily revise or modify any requirement of such

permit that the pollution abatement facilities be operational in order to

provide a sufficient period of time for the permittee to effect the

repairs, replacements or other corrective action described in (a) above.

The Secretary shall impose such additional requirements, terms and

conditions in a discharge permit in connection with such modification or

revision as are necessary to minimize the discharge of wastes to the

waters of the state or to otherwise protect the waters of the state.

c. EmerQency Pollution Permits. Action by the Secretary under this

section shall be deemed to be equivalent to the issuance of an emergency

pollution permit under section 1265(f) of the Act.

d. Public Notice; Notice to ReQional Administrator. If the nature of the

emergency cited as grounds for a revision or modification will not provide

sufficient time to give public notice of an intent to revise or modify a permit

and to provide opportunity for public hearing on such proposed action, the

Secretary may revise or modify the permit without such public notice and

opportunity for public hearing, provided that such public notice is distributed

as soon as possible after the effective date of the revision or modification

(but in no event later than 5 days thereafter) and opportunity for a public

hearing is provided in the.

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manner set forth in sections 13.4(g) and (h). Any such revision or

modification shall be subject to cancellation if the Regional Administrator

objects to such revision or modification within 30 days following receipt of

such public notice. All revisions or modifications pursuant to this section

during the period ending 30 days prior to the transmission of such list shall

be included in the list prepared by the Secretary pursuant to section

13.4(d) (4).

e. Other Conditions to Modifications or Revisions of Discharge Permits.

No revision or modification under this section shall be made unless the

permittee certifies that the Secretary finds that:

(1) There is no present, reasonable alternative means of disposing of the

waste other than by discharging it into the waters of the state during the

limited period of time of the emergency;

(2) The denial of an emergency pollution permit would work an extreme

hardship upon the applicant;

(3) The granting of an emergency pollution permit will result in some

public benefit;

(4) The discharge will not be unreasonably destructive to the quality of

the receiving waters; and

(5) The cause or reason for the emergency is not due to willful or

intended acts or omissions of the applicant or any event or condition over

which the permittee has control.

13.8 Modification, Revocation and Suspension of Permits.

After notice and opportunity for a public hearing, any permit issued hereunder

can be modified, suspended, or revoked in whole or in part during its term for

cause including, but not limited to, the causes listed in section 13.4(e) (2) or for

failure or refusal of the permittee to carry out

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requirements of Section 13.4(c) (3).

13.9 Control of Disposal of Pollutants into Wells.

(a) If an applicant for a permit proposes to dispose of pollutants into wells

as part of a program to meet the proposed terms and conditions of a permit, the

Secretary shall specify additional terms and conditions in the final permit which

shall (1) prohibit the proposed disposal, or (2) control the proposed disposal in

order to prevent pollution of ground and surface water resources and to protect the

public health and welfare.

(b) Any permit issued for the disposal of pollutants into wells shall be

issued in accordance with the procedures and requirements specified in these

regulations.

(c) The Secretary shall utilize in his preparation of any permits proposed to

be issued by him for the disposal of pollutants into wells, any policies, technical

information, or requirements specified by the Administrator in regulations issued

pursuant to the Federal Act or in directives issued to EPA regional offices.

13.10 Municipal Responsibility for Private DischarQes of Domestic Wastes.

In addition to its other responsibilities under the Act, the Federal Act and

the regulations, a municipality shall be responsible for the compliance with all

requirements established under Vermont and Federal law by all new or increased

discharges of domestic waste originating within its

jurisdiction from community type waste treatment and disposal facilities after the

date of adoption of these regulations. Prior to issuing a permit for

any such discharge of such waste originating within a particular municipality, the

Secretary may require the discharger to have made appropriate arrange-ments, by

contract or otherwise, for the proper operation and maintenance

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of any facilities to treat such discharge, which may include arrangements for the

municipality to operate and maintain such facilities. In such cases, the Secretary

may issue each permit to the municipality or to both the municipality and the owner

of the facilities.

RULE 13.11 CERTIFICATION OF ACTIVITIES REQUIRING FEDERAL LICENSE OR PERMIT.

(a) Certifying Agent:

The certifying agent shall be the commissioner of the department of water

resources.

(b) Application for Certification

Application for certification pursuant to section 401 of PL 92-500 or any

amendments thereto shall be made to the commissioner of the department of water

resources, agency of environmental conservation. The application shall contain

information sufficient to determine that any discharge will comply with the

applicable provisions of section 301, 302, 306, and 307 of PL 92-500, and, as

minimum requirements, shall include a description of the location, manner,

volume, nature, frequency and duration of the discharge and such additional

information deemed necessary by the commissioner.

(c) Public Notice:

The commissioner shall give notice of an application for certification in the

manner as provided in Rule 13.3 c.

(d) Public Hearings:

Public hearings with respect to applications for certification shall be

governed by Rule 13.3 g.

(e) Notice of Public Hearings:

Public notice of any hearing to be held with respect to any application for

certification shall be governed by the provisions of Rule 13.3 h.

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(f) Procedure for Public Hearings:

Procedure for public hearings with respect to an application for

certification shall be conducted according to the provisions of Rule 13.3i (2)

and (3).

(g) Content of Certification:

(1) Name and address of applicant.

(2) A statement that the certifying agency has either (i) examined the

application made by the applicant to the licensing or permitting agency

(specifically identifying the number or code affixed to each application) and

bases of its certification upon an evaluation of the information contained in

such application which is relevant to water quality considerations, or (ii)

examined other information furnished by the applicant sufficient to permit the

certifying agency to make the statement described in subparagraph (3) of this

paragraph;

(3) A statement that there is a reasonable assurance that the activity

will be conducted in a manner which will not violate applicable water quality

standards;

(4) A statement of any conditions which the certifying agency deems

necessary or desirable with respect to the discharge or the activity; and,

(5) Such other information as the certifying agency may determine to be

appropriate.

(6) The certifying agency may modify the certification in such manner as

may be agreed upon by the certifying agency and the regional administration

(EPA).

Re-typed to create clean copy.

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