[Federal Register Volume 61, Number 169 (Thursday, August 29, 1996)]
[Rules and Regulations]
[Pages 45832-45833]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-21952]
[[Page 45831]]
_______________________________________________________________________
Part XII
Environmental Protection Agency
_______________________________________________________________________
40 CFR Part 125
Modification of Secondary Treatment Requirements for Discharges Into
Marine Waters; Final Rule
Federal Register / Vol. 69, No. 169 / Thursday, August 29, 1996 Rules
and Regulations
[[Page 45832]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 125
[FRL-5601-2]
Modification of Secondary Treatment Requirements for Discharges
Into Marine Waters
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final Rule.
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SUMMARY: EPA is promulgating a final amendment to the regulations which
implement section 301(h) of the Clean Water Act (CWA'' or ``Act'').
Section 301(h) provides for waivers of secondary treatment requirements
for discharges into marine waters by publicly owned treatment works
(POTWs) that demonstrate their compliance with the 301(h) criteria.
This final amendment promulgates without change a previously proposed
rule to amend the 301(h) regulations to remove a certain restriction on
the eligibility of 301(h) POTWs to request a longer-than-monthly
averaging period to calculate compliance with the Act's requirement to
remove a minimum of 30 percent of the biochemical oxygen demanding
material (BOD) in the influent. EPA determined that this restriction
should be eliminated to provide additional flexibility to POTWs in
demonstrating compliance with the requirements for a waiver. As a
result of this amendment, all 45 applicants for a 301(h) waiver will be
able to request a longer than monthly averaging period for calculating
compliance with the BOD removal requirement.
EFFECTIVE DATE: These regulations take effect on September 30, 1996. In
accordance with 40 CFR 23.2, the Administrator's promulgation occurs at
1:00 p.m. EDT on September 12, 1996.
ADDRESSES: Copies of comments submitted and the docket for this
rulemaking are available for review at EPA's Water Docket; Room 2616
Mall, 401 M Street, SW, Washington, DC 20460. For access to the Docket
materials, call (202) 260-3027 between 9 a.m. and 3:30 p.m., Monday
through Friday, excluding legal holidays, for an appointment. The EPA
public information regulation (40 CFR part 2) provides that a
reasonable fee may be charged for copying.
FOR FURTHER INFORMATION CONTACT: Virginia Fox-Norse, Office of
Wetlands, Oceans and Watersheds, Oceans and Coastal Protection Division
(4504F), U.S. Environmental Protection Agency, 401 M Street, SW,
Washington, DC 20460; (202) 260-8448.
SUPPLEMENTARY INFORMATION:
I. Regulated entities
The entities potentially affected by today's action are those
publicly owned treatment works that discharge into marine waters and
that have applied under section 301(h) of the Clean Water Act, 33
U.S.C. Sec. 1311(h), for a waiver of secondary treatment requirements.
Regulated categories and entities include:
------------------------------------------------------------------------
Examples of regulated
Category entities
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Local governments......................... Publicly owned treatment
works SIC Code 4952.
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(Although EPA is using the term ``regulated'' entities, the effect of
today's action is generally to relax the regulatory restrictions on
these entities.) This table, however, is only a guide and is not
intended to be exhaustive. You should consult today's final regulations
themselves to determine their full impact and applicability. If you
have further questions about whether today's action affects your
regulatory obligations, contact the person or persons listed above (see
FOR FURTHER INFORMATION CONTACT section).
II. Today's Final Action
On February 4, 1987, Congress passed the Water Quality Act of 1987
(WQA) (Pub. L. 100-4), which amended CWA section 301(h) in several
important respects. Among other things, the WQA added a new section
301(h)(9), which requires that:
At the time the 301(h) modification becomes effective, the
applicant will be discharging effluent which has received at least
primary or equivalent treatment.
Section 301(h)(9) of the CWA defines primary or equivalent
treatment as:
Treatment by screening, sedimentation, and skimming adequate to
remove at least 30 percent of the biochemical oxygen demanding
material (BOD) and of the suspended solids (SS) in the treatment
works influent, and disinfection, where appropriate.
EPA published final regulations implementing the WQA amendments to
section 301(h) on August 9, 1994 (59 FR 40642). Among other things, the
regulations added 40 CFR 125.60(c), which provided flexibility to
POTWs, in certain specified circumstances, to use a longer-than-monthly
(not to exceed yearly) averaging period to calculate compliance with
the 30-percent removal requirements for BOD. However, under the second
sentence of Sec. 125.60(c)(1) (the ``eligibility provision''),
facilities that had demonstrated an ability to achieve 30 percent
removal of BOD on a monthly average basis over the calendar year prior
to August 9, 1994, (the date the rule was published) were excluded from
eligibility to apply for this longer-than-monthly averaging period. In
December, 1994, four Alaskan municipalities filed a petition for review
of the final regulations in the U.S. Court of Appeals for the Ninth
Circuit. (Anchorage Water & Wastewater Utility, et al, v. U.S. EPA, No.
94-70913 (9th Cir.)) The petitioners claim that the eligibility
provision should be eliminated from the regulations.
After reexamining the need for the eligibility provision, EPA
published a proposed rule to delete it. [61 FR 7404, February 27,
1996.] The Agency received only six comments on this proposal, from
five POTWs, including the four petitioners in the lawsuit, and one
State wastewater control association. All commenters firmly supported
the proposed rule's deletion of the eligibility provision. Accordingly,
EPA is today promulgating a final rule that, as proposed, deletes the
eligibility provision.
Several of the commenters also offered some technical information
to explain why they feel they cannot or will not be able in the future
to meet the BOD removal requirement on a monthly basis. These latter
remarks are not comments on the eligibility provision, and are thus
outside the scope of this particular rulemaking action. We have
forwarded this information to the appropriate EPA Regional offices for
their information.
As a result of today's final rule, a POTW's historical data cannot
cause the POTW to be automatically ineligible for longer-than-monthly
averaging. However, the Agency emphasizes that removing the eligibility
provision does not automatically provide any POTW with a longer
averaging period for determining compliance with the 30-percent removal
requirement for BOD. Instead, it simply allows all POTWs to request a
longer averaging period in its permit application. Under the amended
regulations, POTWs who apply will continue to be required to
demonstrate to the satisfaction of the Regional Administrator that a
longer period is warranted in order to be granted relief from the
requirement to meet BOD removal on a monthly basis. The Regional
Administrator will still consider the historical data and could base a
decision to grant or deny the longer averaging period in whole or in
part on these data. EPA also notes that even if it grants a longer
averaging
[[Page 45833]]
period, the required frequency of monitoring for BOD will remain the
same as if the period for calculating compliance for BOD removal were
the monthly average basis.
The remaining provisions of the 301(h) regulations remain in full
force and effect, and are not the subject of this final rule.
III. Supporting Documentation
Analyses under E.O. 12866, the Unfunded Mandates Reform Act of
1995, the Regulatory Flexibility Act, and the Paperwork Reduction Act.
Today's action simply removes provisions of an existing rule from
the CFR that limit the ability of affected POTWs to request flexibility
in calculating compliance with removal requirements for BOD. Therefore,
this action has no regulatory impact and is not a ``significant''
regulatory action within the meaning of E.O. 12866, and no regulatory
impact analysis is required.
This action also does not impose any Federal mandate on State,
local or tribal governments or the private sector within the meaning of
the Unfunded Mandates Reform Act of 1995. For the same reasons,
pursuant to the Regulatory Flexibility Act, I certify that this action
will not have a significant economic impact on a substantial number of
small entities. Finally, deletion of these provisions from the CFR does
not affect requirements under the Paperwork Reduction Act.
Submission to Congress and the General Accounting Office
Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business
Regulatory Enforcement Fairness Act of 1996, EPA submitted a report
containing this rule and other required information to the U.S. Senate,
the U.S. House of Representatives and the Comptroller General of the
General Accounting Office prior to publication of the rule in today's
Federal Register. This rule is not a ``major rule'' as defined by 5
U.S.C. 804(2).
List of Subjects in 40 CFR Part 125
Environmental protection, Marine point source discharges, Reporting
and recordkeeping, Waste treatment and disposal, Water pollution
control.
Dated: August 21, 1996.
Carol M. Browner,
Administrator.
For the reasons set forth in the preamble, part 125 of title 40,
chapter I of the Code of Federal Regulations is amended as set forth
below:
PART 125--CRITERIA AND STANDARDS FOR THE NATIONAL POLLUTANT
DISCHARGE ELIMINATION SYSTEM
1. The authority citation for part 125 continues to read as
follows:
Authority: Clean Water Act, as amended by the Clean Water Act of
1977, 33 U.S.C. 1251 et seq., unless otherwise noted.
Subpart G--Criteria for Modifying the Secondary Treatment
Requirements Under Section 301(h) of the Clean Water Act
2. Section 125.60 is amended by removing paragraph (c)(1); by
redesignating paragraphs (c)(2) and (c)(3) as (c)(1) and (c)(2); and by
revising the introductory text of newly redesignated paragraph (c)(1)
to read as follows:
Sec. 125.60 Primary or equivalent treatment requirements.
* * * * *
(c)(1) An applicant may request that the demonstration of
compliance with the requirement under paragraph (b) of this section to
provide 30 percent removal of BOD be allowed on an averaging basis
different from monthly (e.g., quarterly), subject to the demonstrations
provided in paragraphs (c)(1)(i), (ii) and (iii) of this section. The
Administrator may approve such requests if the applicant demonstrates
to the Administrator's satisfaction that:
* * * * *
[FR Doc. 96-21952 Filed 8-28-96; 8:45 am]
BILLING CODE 6560-50-P
