Appendix M - Criteria for Determining Alternative Effluent Limitations
(a) With respect to any point source otherwise subject to the provisions of Section 301 or Section 306 of the CWA, whenever the owner or operator of any such source, after opportunity for public hearing can demonstrate to the satisfaction of the administrator that any effluent limitation proposed for the control of the thermal component of any discharge from such source will require effluent limitations more stringent than necessary to assure the protection and propagation of shellfish, fish and wildlife in and on the body of water into which the discharge is to be made, the administrator may impose an effluent limitation on such plant, with respect to the thermal component of such discharge (taking into account the interaction of such thermal component with other pollutants), that will assure the protection and propagation of a balanced indigenous population of shellfish, fish and wildlife in and on that body of water. This appendix describes the factors, criteria and standards for the establishment of alternative thermal effluent limitations.
(b) Definitions.
(i) "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 this appendix.
(ii) "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.
(iii) The term "balanced, indigenous community" is synonymous with the term "balanced, indigenous population" in the CWA 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 section 301(b) (2) of the CWA; and may not include species whose presence or abundance is attributable to alternative effluent limitations imposed pursuant to this appendix.
(c) Early screening of applications.
(i) Any initial application for an alternative effluent limitation under this appendix shall include the following early screening information:
(A) A description of the alternative effluent limitation requested;
(B) A general description of the method by which the applicant proposes to demonstrate that the otherwise applicable thermal discharge effluent limitations are more stringent than necessary;
(C) A general description of the type of data, studies, experiments and other information which the applicant intends to submit for the demonstration; and
(D) Such data and information as may be available to assist the administrator in selecting the appropriate representative important species.
(ii) After submitting the early screening information under Appendix M (c), the applicant shall consult with the administrator at the earliest practicable time (but not later than 30 days after the application is filed) to discuss the applicant's early screening information. Within 60 days after the application is filed, the applicant shall submit for the administrator's approval a detailed plan of study which the applicant will undertake to support its demonstration under this appendix. The applicant 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. In selecting representative important species, special consideration shall be given to species mentioned in applicable water quality standards. After the applicant submits its detailed plan of study, the administrator shall either approve the plan or specify any necessary revisions to the plan. The applicant shall provide any additional information or studies which the administrator subsequently determines necessary to support the demonstration, including such studies or inspections as may be necessary to select representative important species. The applicant may provide any additional information or studies which the applicant feels are appropriate to support the demonstration.
(iii) Any application for the renewal of an alternative effluent limitation under this appendix shall include only such information described in Appendix M (c) (i) and (ii) as the administrator requests within 60 days after receipt of the permit application.
(iv) The administrator shall promptly notify the Regional Administrator of the EPA and any affected state of the filing of the request and shall consider any timely recommendations they submit.
(v) In making the demonstration, the applicant shall consider any information or guidance published by EPA to assist in making such demonstrations.
(vi) If an applicant desires a ruling on an application under this appendix, before the ruling on any other necessary permit terms and conditions, the applicant shall so request upon filing its application under Appendix M (c) (i). This request shall be granted or denied at the discretion of the administrator.
(d) Criteria and standards for the determination of alternative effluent limitations under this appendix.
(i) Thermal discharge effluent limitations or standards established in permits may be less stringent than those required by applicable standards and limitations if the applicant demonstrates to the satisfaction of the administrator that such effluent limitations 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 applicant, 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.
(ii) In determining whether or not the protection and propagation of the affected species will be assured, the administrator may consider any information contained or referenced in any applicable thermal water quality criteria and thermal water quality information published by the Administrator of the EPA under Section 304(a) of the CWA, or any other information the administrator deems relevant.
(iii) Demonstration upon the absence of prior appreciable harm.
(A) Existing permittees may base their demonstration upon the absence of prior appreciable harm in lieu of predictive studies. Any such demonstrations shall show:
(I) That no appreciable harm has resulted from the normal component of the discharge, taking into account the interaction of such thermal component with other pollutants and the additive effect of other thermal sources to a balanced, indigenous community of shellfish, fish and wildlife in and on the body of water into which the discharge has been made; or
(II) That despite the occurrence of such previous harm, the desired alternative effluent 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.
(iv) In determining whether or not prior appreciable harm has occurred, the administrator shall consider the length of time in which the applicant has been discharging and the nature of the discharge.