Code of Massachusetts Regulations
314 CMR - DIVISION OF WATER POLLUTION CONTROL
Title 314 CMR 3.00 - Surface Water Discharge Permit Program
Section 3.12 - Variances for Thermal Discharges
Universal Citation: 314 MA Code of Regs 314.3
Current through Register 1531, September 27, 2024
(1) Definitions. For the purpose of 314 CMR 3.12:
(a)
Alternative Effluent
Limitations means all effluent limitations or standards of
performance for the control of the thermal component of any discharge which are
established under
33 U.S.C.
1251
§ 316(a) and 314 CMR
3.12.
(b)
Representative Important Species means species which
are representative, in terms of their biological needs, of a balanced,
indigenous community of shellfish, fish and wildlife in the body of water into
which a discharge of heat is made.
(c) The term Balanced, Indigenous
Community is synonymous with the term Balanced
Indigenous Population in
33 U.S.C.
1251 and means a biotic community typically
characterized by diversity, the capacity to sustain itself through cyclic
seasonal changes, presence of necessary food chain species and by a lack of
domination by pollution tolerant species. Such a community may include
historically non-native species introduced in connection with a program of
wildlife management and species whose presence or abundance results from
substantial, irreversible environmental modifications. Normally, however, such
a community will not include species whose presence or abundance is
attributable to the introduction of pollutants that will be eliminated by
compliance by all sources with
33 U.S.C.
1251
§ 301(b)(2), and may not include
species whose presence or abundance is attributable to alternative effluent
limitations imposed pursuant to
33 U.S.C.
1251
§ 316(a).
(2) Application Procedures.
(a) Any initial
application for a variance under 314 CMR 3.12 shall include the following early
screening information:
1. A description of the
alternative effluent limitation requested;
2. A general description of the method by
which the discharger proposes to demonstrate that the otherwise applicable
thermal discharge effluent limitations are more stringent than
necessary;
3. A general description
of the type of data, studies, experiments and other information which the
discharger intends to submit for the demonstration; and
4. Such data and information as may be
available to assist the Department in selecting the appropriate representative
important species.
(b)
After submitting the early screening information under 314 CMR 3.12(2)(a), the
discharger shall consult with the Department at the earliest practicable time
(but not later than 30 days after the application is filed) to discuss the
discharger's early screening information. Within 60 days after the application
is filed, the discharger shall submit for the Department's approval a detailed
plan of study which the discharger will undertake to support its
33 U.S.C.
1251
§ 316(a) demonstration. The
discharger shall specify the nature and extent of the following type of
information to be included in the plan of study: biological, hydrographical and
meteorological data; physical monitoring data; engineering or diffusion models;
laboratory studies; representative important species; and other relevant
information. After the discharger submits its detailed plan of study, the
Department shall either approve the plan or specify any necessary revisions to
the plan. The discharger shall provide any additional information or studies
which the Department subsequently determines necessary to support the
demonstration, including such studies or inspections as may be necessary to
select representative important species. The discharger may provide any
additional information or studies which the discharger feels are appropriate to
support the demonstration.
(c) Any
application for the renewal of a
33 U.S.C.
1251
§ 316(a) variance shall include
only such information described in 314 CMR 3.12(2)(a) and (b) as the Department
requests after receipt of the permit application.
(d) The Department shall promptly notify the
Secretary of Commerce and the Secretary of the Interior, and any affected State
of the filing of the request and shall consider any timely recommendations they
submit.
(e) In making the
demonstration the discharger shall consider any information or guidance
published by EPA to assist in making such demonstrations.
(f) If an applicant desires a ruling on a
33 U.S.C.
1251
§ 316(a) application before the
ruling on any other necessary permit terms and conditions, it shall so request
upon filing its application under 314 CMR 3.12(2)(a). This request shall be
granted or denied at the discretion of the Department.
(g) At the expiration of the permit, any
discharger holding a
33 U.S.C.
1251
§ 316(a) variance should be
prepared to support the continuation of the variance with studies based on the
discharger's actual operation experience.
(3) Criteria for Determination of Alternative Effluent Limitations for Thermal Discharges.
(a) The discharger must demonstrate to the
satisfaction of the Department that applicable standards and limitations for
thermal discharges are more stringent than necessary to assure the protection
and propagation of a balanced, indigenous community of shellfish, fish, and
wildlife in and on the body of water into which the discharge is made. This
demonstration must show that the alternative effluent limitation desired by the
discharger, considering the cumulative impact of its thermal discharge together
with all other significant impacts on the species affected, will assure the
protection and propagation of a balanced indigenous community of shellfish,
fish and wildlife in and on the body of water into which the discharge is to be
made.
(b) In determining whether or
not the protection and propagation of the affected species will be assured, the
Department may consider any information contained or referenced in any
applicable thermal water quality criteria and thermal water quality information
published by the Administrator under
33 U.S.C.
1251
§ 304(a), or any other information
the Department deems relevant.
(c)
1. Existing dischargers may base their
demonstration upon the absence of prior appreciable harm in lieu of predictive
studies. Any such demonstrations shall show:
a. That no appreciable harm has resulted from
the thermal component of the discharge (taking into account the interaction of
such thermal component with other pollutants and the additive effect of other
thermal sources on a balanced, indigenous community of shellfish, fish and
wildlife in and on the body of water into which the discharge has been made);
or
b. That despite the occurrence
of such previous harm, the desired alternative effluent limitations (or
appropriate modifications thereof) will nevertheless assure the protection and
propagation of a balanced, indigenous community of shellfish, fish and wildlife
in and on the body of water into which the discharge is made.
2. In determining whether or not
prior appreciable harm has occurred, the Department shall consider the length
of time the applicant has been discharging and the nature of the
discharge.
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