[Federal Register Volume 59, Number 152 (Tuesday, August 9, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-19058]
[[Page Unknown]]
[Federal Register: August 9, 1994]
_______________________________________________________________________
Part II
Environmental Protection Agency
_______________________________________________________________________
40 CFR Part 125
Discharges Into Marine Waters; Modification of Secondary Treatment
Requirements; Final Rule
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 125
[FRL-5025-7]
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 final amendments to the regulations
contained in 40 CFR part 125, subpart G, which implement section 301(h)
of the Clean Water Act (``CWA'' or ``Act''), 33 U.S.C. section 1311(h).
Section 301(h) provides for modifications of secondary treatment
requirements for discharges into marine waters by publicly owned
treatment works (POTWs) that demonstrate their compliance with the
section 301(h) criteria. These regulatory revisions are being
promulgated to respond to the amendments to section 301(h) contained in
section 303 of the Water Quality Act of 1987 (``WQA'') and to reflect
program experience. These amendments revise portions of the existing
part 125, subpart G, regulations and simplify and revise the
application requirements contained in Appendices A and B of subpart G.
DATES: Effective Date: These regulations take effect on September 8,
1994.
Promulgation Date: In accordance with 40 CFR 23.2, the
Administrator's promulgation occurs at 1:00 p.m. EDT on August 23,
1994.
ADDRESSES: Copies of comments submitted and the docket for this
rulemaking are available for review at EPA's Water Docket; Room L-102,
401 M St., SW., Washington, DC 20460. For access to the Docket
materials, call (202) 260-3027 between 9 a.m. and 3:30 p.m. for an
appointment.
FOR FURTHER INFORMATION CONTACT: Virginia Fox-Norse, Oceans and Coastal
Protection Division (4504F), U.S. Environmental Protection Agency, 401
M Street, SW, Washington, DC 20460, (202) 260-8448. An amended
Technical Support Document (TSD) has been prepared to provide guidance
for preparing applications and complying with provisions of the
regulations. This amended TSD completely supersedes the 1982 revised
section 301(h) TSD, and will be available soon after these regulations
are published in the Federal Register. Requests for the amended TSD
should be made to Virginia Fox-Norse at the address given in this
section.
SUPPLEMENTARY INFORMATION:
Preamble Outline
I. Background
A. History of the section 301(h) Program
B. Water Quality Act Amendments of 1987
C. Overview of Public Comments
D. Summary of Changes Made from the 1991 Proposal
II. Section by Section Analysis
III. Supporting Documentation
A. Regulatory Flexibility Act Analysis
B. Executive Order 12291
C. Paperwork Reduction Act
I. Background
A. History of the Section 301(h) Program
Under section 301(b)(1)(B) of the Clean Water Act of 1972
(hereinafter CWA or Act) (33 U.S.C. Sec. 1311(b)(1)(B)), POTWs were
required to achieve secondary treatment by July 1, 1977. The secondary
treatment requirements establish technology-based effluent limitations
for biochemical oxygen demand (BOD), suspended solids (SS), and pH. See
40 CFR part 133. Some municipalities with POTWs that discharged into
marine waters argued that secondary treatment might not be necessary to
protect certain marine waters where deeper waters with large tides and
currents can allow for greater dilution and dispersion than discharges
into fresh waters. As a result, Congress amended the CWA in 1977 to add
section 301(h), 33 U.S.C. 1311(h), to allow the Administrator, upon
application by a POTW and with the concurrence of the State, to issue a
National Pollutant Discharge Elimination System (NPDES) permit that
modifies the secondary treatment requirements of section 301(b)(1)(B).
In order to obtain a section 301(h) waiver, the applicant must
demonstrate to the satisfaction of the Administrator that the proposed
discharge complies with a set of criteria intended to protect the
marine environment. In addition, section 301(j)(1)(A) of the Act
established a deadline for filing a section 301(h) application. EPA
regulations and an accompanying technical support document (TSD) to
implement the section 301(h) program were issued in 1979. (44 FR 34784,
June 15, 1979.)
Section 301(h) was later amended by the Municipal Wastewater
Treatment Construction Grants Amendments (MWTCGA) of 1981 (Pub. L. 97-
117, 95 Stat. 1623). The MWTCGA extended the deadline for filing
section 301(h) applications to December 29, 1982, and modified
applicant eligibility requirements. In response to the MWTCGA and
program experience, the section 301(h) regulations and the TSD were
revised in 1982. (See 47 FR 24918, June 8, 1982, and 47 FR 53666,
November 26, 1982.)
B. Water Quality Act Amendments of 1987
On February 4, 1987, Congress passed the Water Quality Act of 1987
(Pub. L. 100-4, hereinafter WQA), further amending section 301(h) of
the CWA. Section 303 of the WQA, which contains the amendments to
section 301(h), made the following changes to section 301(h) of the
CWA:
(1) The discharge of pollutants, in accordance with modified
requirements, cannot interfere, alone or in combination with pollutants
from other sources, with the attainment or maintenance of water quality
which assures the protection of the resources and uses listed in CWA
section 301(h)(2).
(2) The scope of required monitoring is limited to only those
scientific investigations necessary to study the effects of the
proposed discharge.
(3) For POTWs serving a population of 50,000 or more, with respect
to any toxic pollutant introduced by an industrial source for which
pollutant there is no applicable pretreatment requirement in effect,
the applicant must demonstrate that sources introducing waste into the
POTW are in compliance with all applicable pretreatment requirements,
the applicant will enforce those requirements, and the applicant has in
effect a pretreatment program which, in combination with the treatment
of discharges from the POTW, removes the same amount of such toxic
pollutant as would be removed if the POTW were to apply secondary
treatment and had no pretreatment program for such pollutant. (For
purposes of this preamble, this requirement will be referred to as the
``urban area pretreatment requirement'').
(4) At the time the section 301(h) modification becomes effective,
the applicant will be discharging effluent which has received at least
primary or equivalent treatment and which meets water quality criteria
established under CWA section 304(a)(1) after initial mixing in the
waters surrounding or adjacent to the point at which the effluent is
discharged. The statutory amendments define primary or equivalent
treatment as treatment by screening, sedimentation, and skimming
adequate to remove at least 30 percent each of BOD and of SS, and
disinfection, where appropriate.
(5) No modification may be issued for a discharge into marine
waters unless those waters exhibit characteristics assuring that water
providing dilution does not contain significant amounts of previously
discharged effluent from the POTW.
(6) No section 301(h) modified permit may be issued authorizing the
discharge of any pollutant into saline estuarine waters which at the
time of the application exhibit certain stressed conditions specified
in the statute, without regard to the presence or absence of a causal
relationship between those conditions and the applicant's current or
proposed discharge.
(7) No permits may be issued for section 301(h) modified discharges
into the New York Bight Apex.
(8) Any POTW that had a contractual agreement before December 31,
1982, to use an outfall operated by another POTW which has applied for
or received a section 301(h) modified permit may apply for a section
301(h) permit in its own right within 30 days of WQA enactment.
(9) Certain provisions of the WQA amendments do not apply to
applications which received final or tentative approval before
enactment of the WQA. These permits will, however, be subject to the
new section 301(h) requirements upon permit renewal.
C. Overview of Public Comments
EPA proposed regulations on January 24, 1991, responding to the
requirements of the WQA and program experience (56 FR 2814). The
preamble to the proposed regulations explains the proposed changes in
the regulations in response to the WQA. On March 7, 1991, EPA held a
public hearing in Washington, DC, to receive comment on the proposal.
The public comment period was open for 60 days and closed on March 25,
1991. Although some comments were not received until April 8, 1991, EPA
has elected to consider all comments received in developing this final
rule. EPA received both written comments and comments at the public
hearing on the proposed rule from a total of 17 commenters: eight
section 301(h) applicants, two State governments, four independent
consultants, and three environmental/public interest groups.
Although the comments received addressed many of the proposed
changes, the principal areas of concern to commenters focused on
primary or equivalent treatment requirements, urban area pretreatment,
and the water quality criteria requirements. A brief summary of the
comments on these areas is set out below, and a more detailed
discussion of all comments received is set out later in the section-by-
section analysis of this preamble.
Comments regarding primary treatment raised issues related to the
30 percent removal requirement for BOD, the cost to small communities
of complying, and the time limit to meet the primary treatment
requirement. Comments on urban area pretreatment raised issues about
use of the pilot plant approach to demonstrate secondary removal
equivalency for toxics, development of local pretreatment limits, which
pollutants are subject to this requirement, the time limit to meet this
requirement, and the cost of compliance. Comments regarding the section
304(a)(1) water quality criteria focused on setting risk levels for
carcinogens, determining mixing zones for evaluating compliance with
State water quality standards, and the role of the section 304(a)(1)
water quality criteria in cases where the State has adopted a different
water quality standard under CWA section 303.
D. Summary of Changes Made From the 1991 Proposal
For the convenience of the reader, the following discussion
provides a brief overview of the sections and subject areas in which
today's final rule makes changes from the January 24, 1991, proposal.
Table 1 of the preamble also provides a summary of those changes. A
full discussion of the changes made in the regulations and proposal is
set out later in the section-by-section analysis of today's preamble.
Today's final rule would make a clarifying change from the 1991
proposal in Sec. 125.58(n), which defines the term ``ocean waters.''
This change is intended to clarify the distinction between ``saline
estuarine waters'' and ``ocean waters,'' a distinction important to the
application of the WQA provisions prohibiting section 301(h) discharges
into stressed saline estuarine waters.
Today's final rule makes a change from the 1991 proposal in
Sec. 125.59, which addresses general application requirements. The
proposal allowed the granting of tentative approvals if the applicant
demonstrated good faith to come into compliance with all the
requirements of this subpart, based on a schedule in accordance with
Sec. 125.59(f)(3)(ii). EPA received a comment asking that this section
be clarified. The commenter stated that because Sec. 125.59(f)(3)(ii)
only applies to primary treatment and urban area pretreatment
requirements, the section could be interpreted as allowing compliance
schedules only for those requirements and not for all requirements.
Section 125.59(h) has been amended to allow compliance schedules for
all requirements.
This change merely clarifies EPA's original intent.
Today's final rule makes a change from the 1991 proposal in
Sec. 125.60, which addresses the WQA requirements for compliance with
primary or equivalent treatment. The proposal specified a monthly
averaging period for determining compliance with the 30 percent BOD
removal requirement for BOD and SS established by the WQA. In response
to comments on this issue, the final rule adds the opportunity under
certain special circumstances for applicants unable to meet the 30
percent removal requirement for BOD on the basis of a monthly average
to request a longer averaging period (up to annual) in order to provide
needed flexibility in calculating compliance. This averaging basis is
not available for those POTWs that have already shown a consistent
ability to meet the 30-percent removal requirement for BOD on a monthly
basis. Because no comments were received indicating a need for
flexibility in the monthly averaging period for determining compliance
with the 30 percent suspended solids removal requirement, this change
applies only to the BOD removal requirements.
The final rule makes a change to the proposed regulatory language
of Sec. 125.62 with regard to determining compliance with State water
quality standards. Comments were received on the issue of mixing zones,
and in evaluating these comments, EPA noted that the proposal had
inadvertently omitted language contained in the existing 1982 section
301(h) regulations on meeting applicable water quality standards at and
beyond the zone of initial dilution. The final rule promulgated today
would retain that language so that the original requirement of the 1982
regulations for meeting State water quality standards at the edge of
the zone of initial dilution remains in effect.
The final rule also makes a change from the 1991 proposal in
Sec. 125.63, which addresses section 301(h) monitoring programs. While
implied, the proposal did not include explicit regulatory language
requiring monitoring to determine compliance with the primary treatment
requirements. It also did not include, under general requirements, an
explicit requirement to have a monitoring program to demonstrate
compliance with water quality criteria as well as water quality
standards, as applicable. The final rule adds these requirements to
Sec. 125.63 (a)(1) and (d)(2) in order to ensure that applicants
provide data on their compliance with these requirements over the life
of the permit.
In addition, in response to comments, the final rule makes several
clarifying changes to Sec. 125.65, which addresses the urban area
pretreatment requirements. The changes are intended to provide
additional guidance on implementation of this section with regard to
the development of pretreatment requirements and secondary equivalency
for toxics removal.
Some conforming and organizational changes were made to the
application questionnaire contained in the Appendix to these
regulations. These changes address amendments made in the final rule
and simplify its use by applicants and the Agency to determine
compliance with the 301(h) requirements.
The remaining sections of the rule (Secs. 125.56, 125.57, 125.61,
125.64, 125.66-125.68) remain unchanged from the 1991 proposal.
Table 1
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Final subpart
G Contents Changes from 1991 Proposal
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125.56 Scope and Purpose............................. Unchanged.
125.57 Law governing issuance of a modified permit... Unchanged.
125.58 Definitions................................... Clarified ocean water definition.
125.59 General....................................... Clarified requirements for compliance schedules.
125.60 Primary or equivalent treatment requirements.. Change to BOD removal averaging period under
certain circumstances.
125.61 Existence of and compliance with applicable Unchanged.
water quality standards.
125.62 Attainment or maintenance of water quality Change to mixing zone provisions.
which assures protection of water supplies,
and the protection and propagation of a
balanced, indigenous population of shellfish,
fish and wildlife, and allows recreational
activities.
125.63 Establishment of a monitoring program......... Monitoring provisions regarding primary
treatment compliance added.
125.64 Effect of discharge on other point and Unchanged.
nonpoint sources.
125.65 Urban area pretreatment program............... Clarifying language added.
125.66 Toxics control program........................ Unchanged.
125.67 Increase in effluent volume or amount of Unchanged.
pollutants discharged.
125.68 Special conditions for section 301(h) modified Unchanged.
permits.
Appendix Applicant questionnaire for modification of Conforming and Organizational changes made.
secondary treatment requirements.
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II. Section-by-Section Analysis
This section provides a description of each section in the
regulation and discusses the public comments received. Citations to
sections of the part 125, subpart G, regulations in the discussion
below refer to the section numbers of the regulations as numbered under
today's rule.
Although portions of the section 301(h) regulations that were not
proposed for change are being reprinted with today's action, this has
been done for the convenience of the reader. EPA did not reconsider
those existing portions of the regulations and they are not subject to
challenge as part of this final rulemaking.
Section 125.56: This section establishes the general scope and
purpose of the regulations. EPA did not propose to revise this section,
and no comments were received. This section remains unchanged.
Section 125.57: This section sets forth the statutory language
applicable to section 301(h) modified permits. No comments were
received, and this section remains unchanged from the proposed rule.
Section 125.58: This section sets forth the definitions applicable
to the subpart G regulations. As a result of section 303 of the WQA,
the 1991 proposal added definitions of ``primary or equivalent
treatment,'' ``pretreatment,'' ``categorical pretreatment standard,''
``secondary removal equivalency,'' ``water quality criteria,''
``permittee,'' and ``New York Bight Apex.'' In addition, the proposal
made changes to existing definitions for ``industrial source,'' ``ocean
waters,'' and ``stressed waters.'' EPA received significant comments on
two aspects of the primary or equivalent treatment requirements and the
definition of saline estuarine waters.
Definition of Primary Treatment
Section 125.58(r) of the proposed rule defined ``primary or
equivalent treatment'' as treatment by screening, sedimentation, and
skimming adequate to remove at least 30 percent of the biochemical
oxygen demanding (BOD) material and of the suspended solids (SS) in the
treatment works influent, and disinfection, where appropriate. This
definition was taken directly from the language of section 303(d) of
the WQA. The preamble to the proposed rule further explained that the
terms ``sedimentation'' and ``skimming'' could include a range of
treatment techniques such as coagulation and precipitation (physical
adjuncts to sedimentation), and flotation and subsequent removal by
skimming, in order to achieve the required 30 percent removal of BOD
and SS. (56 FR 2818). Although certain types of treatment are specified
in the statutory definition (i.e., screening, sedimentation, and
skimming), EPA believes the principal intent of the statutory
definition is to ensure compliance with the 30 percent BOD and SS
removal requirements, rather than specifying the exact methods used to
achieve such removal rates. For example, chemical addition,
coagulation, and precipitation might be necessary in addition to the
specific treatment processes listed in the definition in order to
achieve the mandated 30 percent removal, and this would be allowable.
Several commenters sought a change to the definition due to
concerns with the requirement to achieve 30 percent BOD removal. As
discussed below in more detail, the commenters' concerns centered on
the practical difficulties in achieving 30 percent BOD removal by the
physical processes of primary treatment. Some noted that from an
engineering standpoint, technologies for primary treatment are aimed at
removing solids, rather than soluble BOD.
Some commenters stated that their review of the legislative history
of the WQA amendments to section 301(h) shows that Congress did not
articulate any rationale for defining primary treatment as 30 percent
removal of BOD. The commenters argued that Congress' intent was to stop
the discharge of untreated sewage from waiver recipients. They also
pointed out that Congress defined primary treatment as consisting only
of skimming, screening, and sedimentation, and did not include more
sophisticated technologies, such as coagulation and precipitation.
Therefore, they state, EPA must adopt that literal definition and
acknowledge that skimming, screening and sedimentation might not be
enough to achieve 30 percent removal of BOD. Commenters sought a change
to the definition of primary treatment to reflect only the physical
processes and not the 30-percent removal requirements.
Another commenter disagreed and argued that the advantages of using
clear, uniform 30-percent standards in the statute and regulations are
obvious, and that the fact that these advantages and other plausible
rationales were not stated explicitly in the legislative history is
insufficient grounds for ignoring the plain and unambiguous statutory
requirements.
Some commenters noted that primary treatment generally is intended
to remove settleable solids and floating materials rather than BOD and
therefore inclusion of 30 percent BOD removal as part of the definition
of primary treatment is technically inappropriate. In support, several
commenters cited the literature of wastewater engineering and stated
that BOD reductions achieved by primary treatment are the result of
insoluble (solid form) BOD being removed along with the settleable or
floatable materials. The commenters pointed out that soluble BOD would
not be removed by the physical processes of screening, skimming, and
sedimentation, and that the BOD removal rates achievable by primary
treatment would therefore vary depending upon the relative amounts of
soluble and insoluble BOD. Commenters also cited situations where
pretreatment of discharges by industrial dischargers that removes much
of the insoluble BOD (e.g., fish processors removing settleable fish
wastes) results in a high proportion of soluble to insoluble BOD. One
commenter noted that the key statutory term in section 303(d)(2) of the
WQA is ``material,'' implying that Congress intended that 30 percent
removal refers to insoluble BOD, not total BOD. Section 303(d)(2)
states that ``primary or equivalent treatment means the removal of at
least * * * 30 percent of the biological oxygen demanding material * *
*'' (emphasis added). The commenters therefore sought a change to the
regulations' definition of primary treatment to require 30 percent
removal of insoluble BOD, with soluble BOD being excluded from the 30
percent removal requirement.
Some commenters were concerned that they might have difficulty in
achieving 30 percent BOD removal by the physical processes of primary
treatment because their influent BOD levels were very dilute, that is,
relatively low concentrations of BOD in the raw wastewater would make
30 percent removal hard to achieve. These commenters pointed to a
number of factors leading to such dilute wastewater and difficulties in
achieving removal efficiencies such as (1) cold climates which result
in freeze/thaw problems including inflow and infiltration from snow
melt and cracked or broken pipes with attendant dilution of the
influent by the resulting influx of fresh water; (2) insufficient
industrial or commercial sources with high concentrations of BOD in the
wastewater discharges to the municipal sewage system to offset
otherwise dilute influents with low BOD concentrations; (3) cold
wastewater temperatures resulting in relatively less efficient
treatment; and (4) extremely high tides and high precipitation. These
commenters recommended that EPA not require 30 percent removal during
periods of extremely dilute and clean inflows.
After considering these comments, EPA made no changes to the
definition of primary or equivalent treatment in Sec. 125.58(r).
However, as discussed below in the section-by-section analysis for
Sec. 125.60, the Agency is making changes to how compliance with the 30
percent removal requirement is calculated for BOD. Specifically, EPA is
allowing the demonstration of compliance with the 30 percent BOD
removal requirement to be averaged over a longer time period than
proposed, in some circumstances. This added flexibility should provide
some of the relief sought by commenters.
Although EPA recognizes that from a technical or engineering
perspective, primary treatment is generally thought of as physical
processes to remove solids, the statutory definition of primary
treatment adopted by Congress for purposes of section 301(h) is
unambiguous in requiring 30 percent BOD removal. In addition, EPA
disagrees with the commenters who stated that the statutory definition
precludes the use of additional treatment processes such as chemical
addition to enhance primary treatment's physical processes (e.g.,
chemical addition, coagulation, and precipitation) in order to achieve
the required 30 percent removal of BOD.
With regard to the commenters' suggestions that the definition be
revised to define BOD as insoluble BOD only, EPA recognizes that
removal of BOD in primary treatment normally is associated with the
removal of settleable (i.e., insoluble) materials. While the literature
cited by the commenters indicates that BOD removals for traditional
primary treatment range from about 20 to 40 percent, the reported range
is a result of many factors including treatment plant design,
subsequent additional treatment and influent qualities such as the
presence of soluble versus non-soluble BOD. Furthermore, Congress set
the BOD removal standard without incorporating such a distinction. Both
soluble and insoluble BOD exert the similar effect of depressing
dissolved oxygen levels in the receiving waters. Limiting the required
removal to only insoluble BOD ignores this fact and also would be
inconsistent with the existing approach of the Agency's secondary
treatment regulations, which do not distinguish between removal of
soluble and insoluble BOD. EPA disagrees that the use of the term
``material'' in section 303(d)(2) indicates that Congress intended that
30 percent removal refer only to insoluble BOD. See, e.g., 40 CFR part
133.
The definition in today's regulations comports with the express
statutory language, and if an applicant does have difficulty meeting
the 30 percent BOD removal requirement with treatment by screening,
sedimentation, and skimming, for such reasons as dilute influent, cold
temperatures, or soluble-to-insoluble BOD ratios, applicants can
increase BOD removal efficiencies through the application of treatment
processes which may include physical processes enhanced by chemical
processes. Accordingly, given the unambiguous statutory language on
percent removal and the ability to use enhanced treatment processes
when necessary, EPA believes the definition should not be amended to
allow for less than 30 percent removal of BOD or to exclude soluble BOD
from the removal requirements established by Congress. Compliance with
the 30 percent removal requirement, which may require enhanced or
additional technologies, is more appropriate than limiting treatment
strictly to the three technologies listed in the statute and not
achieving 30 percent in some cases. The term material, EPA believes,
does not imply insoluble, and, as explained above, such an
interpretation makes little sense, given that soluble and insoluble BOD
exert similar effects in the receiving waters.
Other commenters requested that the definition be changed to
require that the combined average of both BOD and SS percent removal be
at least 30 percent. EPA considered this option but did not deem it
acceptable for two reasons. First, the statute states that primary
treatment requires the removal of at least 30 percent of the biological
oxygen demanding material and of the suspended solids. Combining the
BOD and SS removal requirements into an overall 30 percent average, in
EPA's view, would not satisfy the statutory language or intent. Second,
after considering both information submitted by commenters and EPA's
own assessment of primary treatment removal data from POTWs (See
Technical Review of the Influent/Effluent Characteristics of POTWs,
June 1994), EPA concludes that most POTWs are removing greater than 30
percent of SS, and some are removing greater than 60 percent of SS.
Adopting the suggested change thus would allow for an actual relaxing
of both BOD and SS removal even for applicants capable of meeting the
30 percent removal of BOD and 30 percent removal of SS. There is no
indication that Congress intended this result. Moreover, properly run
primary treatment plants should be able to meet 30 percent SS removal
and no comments or data were received that indicate otherwise. EPA
believes one objective of the primary treatment provision is to ensure
the proper design and operation of treatment plants, and this objective
would not be met under the commenters' suggested interpretation.
Similar to the above comments, some commenters requested the
definition be changed to require that the combined average of both BOD
and SS percent removal be greater than 60 percent. As stated above, EPA
does not believe that the statutory language and intent are consistent
with combining BOD and SS removals to meet the 30-percent removal
requirement. Using a standard of 60 percent would stray even further
from the plain meaning of the statute. Moreover, if Congress had
intended to provide a 60 percent removal requirement it could easily
have so specified in the statute, however, the statute makes no
reference to a 60 percent removal of BOD and SS. Finally, as with the
previous comment, this interpretation could allow for even greater
relaxing of treatment efficiencies for BOD removal (or SS), leading to
less efficient plant operations than applicants are currently
achieving.
Some commenters suggested that the requirement for 30 percent
removal should reflect a ``credit system,'' under which the removal
efficiency for BOD would be calculated based on a combination of the
BOD removal by industrial dischargers' pretreatment, plus the removal
achieved by treatment processes at the POTW. This approach is
inconsistent with the plain statutory language and thus cannot be
adopted. The statute unambiguously specifies that the 30 percent
removal rate is to be achieved with respect to the applicant's
influent. Such influent would already have been subject to industrial
dischargers' pretreatment, and because the statute requires that the 30
percent removal rate be achieved for the influent to the POTW, credit
cannot be given for upstream treatment by industrial dischargers.
In contrast to the above comments seeking a change in the
definition of primary treatment, other comments supported the
definition of primary treatment as 30 percent removal of BOD and of SS
as proposed. These commenters noted that this definition is consistent
with the plain, unambiguous definition specified by Congress in the WQA
as discussed above, and these commenters agree with EPA that the
suggested changes to the definition that EPA has rejected would be
inappropriate.
Definitions of Saline Estuarine Waters and Ocean Waters
Under section 303(e) of the WQA, section 301(h) modified discharges
are prohibited into saline estuarine waters exhibiting certain signs of
stress (i.e., degradation to water quality) specified in the statute.
In contrast, this flat prohibition does not apply to ``ocean waters.''
As a result, in the proposed rule, EPA amended the term ``ocean
waters'' in Sec. 125.58(n) to clarify that ocean waters are distinct
from saline estuarine waters because discharges to saline estuaries are
now subject to additional regulatory criteria not applicable to
discharges to oceans.
Although the existing definition of saline estuarine waters was not
proposed for amendment, some commenters expressed the view that it is
too broad and thus might give the prohibition on section 301(h)
discharges to stressed saline estuarine waters greater scope than
intended. These commenters sought a definition giving more precise
boundaries to saline estuarine waters.
The narrative definition of saline estuarine waters has remained
unchanged since its original 1979 promulgation in the section 301(h)
regulations, and the section 301(h) regulations have always placed
additional restrictions on discharges to saline estuarine waters
compared to ocean waters. Section 125.61(c)(4) (1982) places additional
limits on impacts within the zone of initial dilution for saline
estuarine discharges. EPA's experience with the use of a general
narrative definition of saline estuarine waters for purposes of making
regulatory distinctions is that this approach is workable. EPA believes
that it is not feasible for the purposes of the section 301(h)
regulations to develop a definition establishing fixed boundaries
between ocean and estuarine waters, but that all relevant local
circumstances should be considered and the distinction should be made
on the basis of the site-specific circumstances.
The commenters' concern appears to center on the meaning of the
term ``semi-enclosed waters'' in the definition of saline estuarine
waters. In this regard it is important to note that under
Sec. 125.58(v), not all semi-enclosed coastal waters are treated as
saline estuaries. Under the section 301(h) regulations, while some
embayments and other indentations along the coastline lie inside the
baseline from which the territorial sea begins, they are treated for
purposes of section 301(h) as being ocean waters. See preamble to 1979
section 301(h) regulations (44 FR 34784, 34795, June 15, 1979). As
noted in the preamble to the 1979 section 301(h) regulations (44 FR
34795), it is the presence of fresh water inflows that is the
distinguishing characteristic of estuaries. EPA notes today that saline
estuarine waters typically are waters lying inside the baseline in
which the salinity is diluted by fresh water inflows. In contrast,
embayments or indentations along the coastline that are not influenced
by such fresh water inflows are not estuaries. To further clarify that
ocean waters and saline estuarine waters are distinct and mutually
exclusive terms for purposes of section 301(h), the final rule, as in
the proposal, amends the definition of ``ocean waters'' to note that
this term specifically excludes saline estuarine waters.
Commenters also inquired about situations where an outfall crosses
through estuarine waters, but the actual discharge is into offshore
waters. Because both the statute and the implementing regulations make
clear that the prohibition applies to discharges of pollutants into
saline estuarine waters, the statute and implementing regulations
already adequately address this case.
Section 125.59: This section describes the general requirements for
section 301(h) applications, including filing procedures and deadlines,
procedures for revising applications, and procedures for State
determinations. EPA proposed to make several changes to this section.
In the proposed rule, EPA added procedures for permit renewal,
clarified language regarding State determinations, and added provisions
for the submission of additional information to demonstrate compliance
with the urban area pretreatment program and primary or equivalent
treatment requirements. EPA also proposed to amend the regulations in
accordance with section 303(g) of the WQA to exclude certain applicants
from the water quality criteria provisions of Sec. 125.62(a), primary
or equivalent treatment program requirements (Sec. 125.60) and urban
area pretreatment program requirements (Sec. 125.65) until permit
renewal. As provided by the WQA, and explained later on in this
preamble, these grandfathering provisions in today's final rule apply
only to those section 301(h) applications that received tentative or
final section 301(h) modified permit approvals prior to enactment of
the WQA.
The new requirements for submitting additional information are
found in Sec. 125.59(e) and (f). Under those provisions, permittees and
applicants to whom EPA has issued a final or tentative decision,
including those that have been grandfathered under WQA section 303(g),
must submit a letter of intent explaining how the permittee or
applicant will meet the primary treatment and urban area pretreatment
requirements. Under Sec. 125.59(f)(3), applicants that are not
grandfathered have two years from publication of the regulation to
comply with the primary treatment and urban area pretreatment
requirements; applicants that are grandfathered have until permit
renewal or two years from date of publication of these regulations,
whichever is later. Under Sec. 125.59(e), the letters of intent must
contain a project plan, including a schedule, to ensure that timely
implementation of the requirements is accomplished.
Some commenters expressed the view that two years from the date of
promulgation of the regulations is not sufficient time to enable
compliance with the primary treatment and urban area pretreatment
requirements. One of these commenters expressed concern over the impact
of such a deadline on a consent decree schedule it has entered into for
development of a pretreatment program. Further, this commenter was
concerned that the time would not be sufficient to develop pretreatment
limits for all 126 toxic priority pollutants. Another commenter
expressed concern that two years was not sufficient given their short
construction season and reliance on obtaining funds from a State
legislature whose timing is not in the commenter's control. Other
commenters expressed the view that two years is a reasonable timeframe.
Another commenter expressed the view that two years is an excessive
timeframe and in fact should not apply to requirements which were
either (1) in effect prior to the 1987 amendments or (2) clear on the
face of the 1987 amendments (e.g., 30 percent BOD/suspended solids
removal standards).
With regard to requirements in effect prior to the 1987 WQA, the
two-year time frame is not applicable. The two-year time frame applies
only to the urban area pretreatment program and primary or equivalent
treatment requirements, both of which were added by the WQA.
EPA recognizes that for some applicants, compliance with a two-year
deadline from the date of promulgation of the regulations may be more
difficult than for others, for example, those who may have to obtain
funding to design and build an upgraded facility to meet the primary
treatment requirements. However, none of the commenters opposing the
two-year deadline provided persuasive information demonstrating why
this deadline could not be met. One commenter subject to court-ordered
deadlines and consent decree time-lines asked how to reconcile these
deadlines with the consent decree time-lines. That commenter also noted
that there are a number of different activities that need to be
performed to establish a local limit, such as gathering data,
developing computer models, and obtaining government approvals. That
commenter, however, provided no information supporting why these
activities cannot be accomplished within the time established in the
regulation. EPA notes that several of these activities can be performed
simultaneously. In response, the commenter will have to comply with the
deadlines included in the consent decree. This comment is moot because
of the time that has elapsed between the proposed rule and today. The
deadlines in the rule should not affect the dates in consent decree. In
addition, the commenter has been on notice for several years. EPA
continues to believe that the two-year time frame for compliance
provides sufficient time to achieve compliance. It should also be noted
that the requirement to develop local pretreatment limits does not
necessarily apply to all 126 priority pollutants, but only those that
are known or suspected to be introduced to the plant by industry, as
discussed later in this preamble. The Agency notes that the statutory
provisions giving rise to these requirements were enacted in 1987, and
that the proposed regulations and draft technical support document were
issued in 1991. In addition, the Agency has had other final guidance on
the development of pretreatment programs in place for several years.
Even in cases where commenters claim they have large numbers of
dischargers and large numbers of pollutants will need to be addressed,
EPA continues to believe that sufficient time and notice has been given
to achieve compliance. EPA agrees with the commenter who noted that
applicants have been on notice of the need to comply with the primary
treatment and urban area pretreatment requirements for quite some time,
and could have already initiated work on the planning and development
of measures to achieve compliance. The Agency also recognizes that in
the absence of final regulations on these issues, applicants should not
be expected to have completely developed and implemented final plans.
Given this situation, and in the absence of supporting information to
show that the two-year time frame of the proposal is inappropriate, the
Agency is retaining the proposal's two-year time frame from the date of
publication of the final regulations in the Federal Register to achieve
compliance. This date, August 9, 1996, is inserted in the regulatory
text of this rule.
One commenter asked for additional time to comply with the urban
area pretreatment and primary treatment equivalency requirements for a
plant that has not yet been constructed. In response, these applicants
will have to demonstrate compliance with these requirements based on a
predictive analysis of their flows. The applicant must base their
prediction on potential industrial sources and pollutants, and, to the
best of their ability, support such predictions within the two-year
time frame.
In proposed Sec. 125.59(h), EPA added language to clarify that the
Agency may tentatively approve a section 301(h) permit modification
where an applicant has demonstrated a good faith effort to come into
compliance with all requirements of the section 301(h) regulations,
based upon a schedule approved by the Agency for meeting any
outstanding section 301(h) requirements. This provision is consistent
with the existing regulations and practice and was proposed for
addition only as a clarifying change. In addition, the proposal made no
changes to the existing requirement that in order to receive a final
section 301(h) modification, applicants must demonstrate actual
compliance with all of the part 125, subpart G, requirements before EPA
will issue a final section 301(h) modified permit. See 40 CFR
Sec. 125.59(g)(1) (1982).
One commenter supported the approach taken by EPA on tentatively
approving an application based on a schedule with respect to
outstanding requirements if an applicant has demonstrated a good faith
effort to come into compliance. However, the commenter is concerned
that Sec. 125.59(h) creates an ambiguity regarding the permissible
scope of the schedules for meeting 301(h) requirements. Section
Sec. 125.59(h) allows EPA to tentatively approve an application if the
applicant is making a good faith effort to comply with ``all
requirements of this subpart.'' (emphasis added) The section continues
on, however, to require that the schedule for meeting these
requirements must be ``approved by the Administrator in accordance with
Sec. 125.59(f)(3)(ii), which refers only to schedules of compliance
with Sec. 125.60 (primary or equivalent treatment) and Sec. 125.65
(urban area pretreatment).
EPA agrees with the commenter and is clarifying Sec. 125.59(h) to
allow schedules for satisfying the 301(h) requirements for all
requirements. It was not the Agency's intent to limit compliance
schedules to the requirements of Secs. 125.60 and 125.65. The Agency's
intent was that the limitations of Sec. 125.59(f)(3)(ii) apply only to
compliance schedules for meeting the Secs. 125.60 and 125.65
requirements. Therefore, we are adding a phrase to
Sec. 125.59(f)(3)(ii) that reflects the Agency's intent.
Some commenters expressed the view that EPA should not grant
tentative approvals before all the section 301(h) requirements are met.
Additionally, one of these commenters felt that if a tentative approval
is granted prior to such compliance, the applicant may be encouraged to
relax its effort to comply.
Based on its past experience with this approach, EPA believes that
the provisions of the proposed regulation are appropriate and contain
adequate safeguards to prevent abuse. The regulatory provision
specifically requires that applicants must be making a good faith
effort to achieve compliance and requires that EPA establish a schedule
for achieving compliance. In addition, this approach provides an
opportunity for EPA, through the tentative decision document, to put
the public and applicants on notice of specific deficiencies and the
steps and time frame required to correct such deficiencies. Rather than
creating a disincentive to timely compliance, the regulatory provision
requires that a schedule for compliance be established. In addition,
EPA believes that by advising applicants that they may receive a final
section 301(h) waiver if the identified deficiencies are corrected as
required, the provision provides an added incentive for applicants to
achieve timely compliance. Finally, by addressing such deficiencies
through the tentative approval, the more lengthy process of tentative
denial followed by application revision is avoided. For these reasons,
EPA believes that the regulatory provision is reasonable and is
promulgating that provision today as proposed with the clarification
noted above.
One commenter recommended that the EPA regional office issue a
letter to the applicant stating that its permit has been
administratively extended in accordance with Sec. 122.6. In response,
EPA notes that this is a procedural issue governed by the NPDES
regulations. It is not a subject of this rulemaking.
EPA notes in reviewing this section that Sec. 125.59(d)(5) might be
misinterpreted to mean there is no opportunity to present new
information on applications for permit renewal. Paragraph (d)(5) is
referring to the one-time revisions allowed in Sec. 125.59(d)(1) and
(d)(2). Applicants who are authorized or requested to submit additional
information under Sec. 125.59(g) may still do so.
Section 125.60: The proposal added Sec. 125.60 to the regulations
to implement the primary or equivalent treatment provision in section
303(d) of the WQA. Issues related to the definition of primary
treatment have been previously dealt with in the discussion of
Sec. 125.58.
Proposed Sec. 125.60 required an applicant's discharge, at the time
the waiver becomes effective, to have received at least primary or
equivalent treatment. Additionally, under the proposal, applicants were
to comply with this treatment requirement based on the monthly average
results of the monitoring for SS and BOD.
A number of commenters recommended that EPA consider lengthening
the period of time over which monitoring data are averaged to determine
compliance with the 30 percent BOD removal requirement. These
commenters presented information on the difficulties with achieving the
30 percent removal because of such factors as dilute wastewaters, cold
climates that impact treatment design parameters (e.g., settling
rates), and proportionately low amounts of insoluble BOD. One of the
options identified by these commenters was to change from monthly
averaging of monitoring data to annual averaging (or some period in
between). Commenters pointed out that this was a reasonable approach
which was necessary to account for variations in influent quality or
other factors affecting removal rates that might occur over a year's
time. Other commenters supported meeting the primary treatment removal
requirements on a monthly average basis.
The Agency believes that the proposed period for averaging
monitoring results (i.e., monthly) to determine compliance with the 30
percent BOD removal requirement will be appropriate for most
applicants. However, as noted in the discussion for the primary
treatment definition in Sec. 125.58, the Agency also recognizes that
the 30 percent removal rate for BOD may be difficult to achieve on a
monthly average basis in certain cases, e.g., dilute wastewater or
proportionately low concentrations of insoluble BOD. Because of this,
the final rule has been modified to provide flexibility in certain
instances by allowing compliance monitoring to be averaged for a period
longer than monthly, up to annually.
EPA anticipates that compliance monitoring requirements established
for longer than monthly average periods will be the exception, not the
general practice. An applicant who has demonstrated a consistent
ability to achieve 30 percent removal of BOD on a monthly average basis
over one year prior to the publication date of these regulations will
not be eligible for the longer than monthly averaging period. The
longer period will be available only to those applicants who have some
historical data on BOD removal, and not for newly constructed
facilities. Eligibility for the longer period is limited to those who,
based on circumstances listed below, and subject to the qualifications
listed below, truly cannot achieve 30 percent removal on a monthly
average.
It is the Regional Administrator's decision whether to allow the
longer averaging period. The Regional Administrator will judge each
eligible case on its individual circumstances, taking into account
climatic, seasonal, or other factors beyond the applicant's control
which cause significant fluctuations in influent characteristics that
could impact BOD removal efficiencies. Appropriate circumstances may
include:
Seasonally dilute influent BOD concentrations due to
relatively high (although nonexcessive) inflow and infiltration;
Relatively high soluble to insoluble BOD ratios on a
fluctuating basis; or
Cold climates resulting in cold influent.
The longer period must be requested by the applicant, and the
burden of justifying a longer averaging period will be on the
applicant. In addition to justifying the application on conditions
listed above, to qualify for the longer averaging period the applicant
will have to demonstrate to the satisfaction of the Regional
Administrator that the treatment facility is properly designed and
operated; that the applicant will be able to meet all section 301(h)
requirements with the longer averaging basis; and because of
circumstances beyond the applicant's control (examples listed above),
the applicant cannot achieve the 30 percent removal requirement for BOD
on a monthly averaging basis. The final rule also requires that inflow
and infiltration (I/I) is nonexcessive in order to ensure that
applicants have corrected, as feasible, deficiencies in their
collection system that result in extremely dilute wastewater. The
definition of excessive I/I in 40 CFR 35.2005(b)(16) will be used to
determine whether the I/I is excessive, plus the additional criterion
that inflow is nonexcessive if the total flow to the primary treatment
plant is less than 275 gallons per capita per day, consistent with 40
CFR 133.103(d) of the secondary treatment regulations.
It should be noted that permit writers can still incorporate
interim limits into the permit. When compliance determinations with
interim limits indicate that the ability to achieve 30 percent removal
of BOD for the designated period is compromised, action to determine
and, if possible, fix the problem should be taken. Monitoring
frequencies for BOD should remain the same as they would be if the
compliance determination for BOD removal was on a monthly average
basis. For enforcement purposes, there is the potential that allowing
longer averaging periods may prove more costly to the POTW in
violation. POTWs should note that if a longer period is granted, they
should be aware of the risk that a violation of an annual average limit
may result in 365 days of violation.
Other commenters requested that EPA set a baseline level of BOD in
the treatment works influent above which 30 percent removal would be
required, with 30 percent removal not required for influent cleaner
than that threshold level. This option relies on a level of BOD in the
influent that hypothetically represents a typical BOD influent
concentration. The statute specifies 30 percent removal and does not
tie this requirement to some specific concentration in the influent.
The Agency believes that making the statutory 30 percent removal
requirement dependent on a hypothetical influent baseline concentration
would not meet the statute's intent.
One commenter stated that the approach to section 301(h) waivers
should be based on water quality effects and not on any
``equivalencies,'' e.g., primary treatment and secondary removal
equivalency. In response to this general comment, EPA reiterates that
it is promulgating these regulations to implement the new provisions of
the WQA which mandate primary or equivalent treatment. Today's
regulatory scheme is fully consistent with the new WQA amendments.
Some commenters raised concerns about the financial impact on some
individual dischargers if additional capital improvements are needed to
meet the 30 percent BOD removal requirement. They see the costs of
meeting the new primary treatment requirements as having a
disproportionate impact on small communities. For example, one
commenter stated that this requirement would result in a 20 percent
rate increase; that polymers alone would cost $100,000. Others
commented that cost should not be a factor in justifying a lower
removal efficiency and that EPA should not guarantee a cap on sewage
treatment costs.
As part of this rulemaking EPA has prepared an economic analysis of
the impacts of the regulations. Although some communities may need to
make improvements to their plants to meet the primary treatment
requirements, the statute does not authorize any waiver of those
requirements on the basis of financial hardship. In addition, EPA
believes that as shown in the economic analysis, the final regulations'
requirements do not unduly impact small communities in terms of overall
cost of compliance. Specifically, none of the small communities,
including the community that indicated in its comments a 20 percent
increase in rates, will end up spending more than 1 percent of median
household income on wastewater treatment. Municipal financial impact
models used by EPA assume that ratios of wastewater treatment costs to
median household income of less than 1 are not expected to create
economic hardship for households. Moreover, although current treatment
costs may increase, small communities will still realize an overall
cost savings if less-than-secondary treatment is approved through the
section 301(h) process. Finally, as discussed above, the Agency in
today's rule has provided the opportunity for adjusting the averaging
period for calculating compliance with the primary treatment
requirement for BOD under certain circumstances. This added flexibility
should further serve to reduce any potential adverse financial impacts.
The new flexibility may allow POTWs with dilute influent, provided it
is not excessive I&I to qualify with less cost to achieve compliance.
The cost of improving collection systems to fix excessive I&I would
impact small communities, but is not a cost of this rule. In response
to a comment that the need for this flexibility results from future
increases in treatment capacity due to population growth, EPA agrees
that this is not an appropriate reason, and has not based its decision
to allow flexibility on costs of additional treatment due to future
growth. There are other more appropriate and legitimate reasons, as
spelled out earlier in this preamble, for some measure of flexibility.
Section 125.61: No changes to this section were proposed or are
promulgated today. This section addresses the existence of, and
compliance with, water quality standards for the pollutant for which
the modification is requested. No comments were received.
Section 125.62: This section contains requirements for the
attainment or maintenance of water quality which assures protection of
public water supplies, the protection and propagation of a balanced,
indigenous population of shellfish, fish, and wildlife, and allows
recreational activities. In response to the requirement of WQA section
303(d) for discharges to meet CWA section 304(a)(1) water quality
criteria, EPA proposed language at Sec. 125.62(a)(1)(i)-(iii) and
125.62(a)(2) and (3) to implement that additional requirement. The
proposal also amended Sec. 125.62(f) to implement requirements of WQA
section 303(a) regarding combined impacts of section 301(h) discharges
and made a conforming change in light of the WQA prohibition on section
301(h) discharges to stressed estuaries to clarify that the
regulations' stressed waters test applies only to ocean waters.
Comments on this section addressed issues related to water quality
criteria, including human health carcinogenic risk levels, mixing
zones, combined impacts, and stressed waters.
Water Quality Criteria
Under the proposal to implement the WQA requirement that discharges
meet EPA section 304(a)(1) water quality criteria, EPA would first
determine whether there is an EPA-approved State water quality standard
that directly corresponds to the EPA section 304(a)(1) water quality
criterion for the specific pollutant. If there is, EPA would apply this
directly corresponding State standard. In the absence of such a State
standard, the section 304(a)(1) water quality criterion would be
applied instead. Under the proposal, an EPA-approved State water
quality standard would be deemed to ``directly correspond'' if (a) the
State water quality standard addresses the same pollutant as EPA's
water quality criterion; and (b) the State water quality standard
specifies a numeric criterion for that pollutant, or an objective
methodology for deriving such a pollutant-specific criterion. The
preamble to the proposed rule discusses this subject in more detail (56
FR 2818-2819).
A commenter felt that the regulations should require compliance
with the CWA section 304(a)(1) criteria at a minimum, and that
compliance with a directly corresponding State standard that may be
less stringent instead was unacceptable. The commenter argued that
Congress was aware of State water quality standards, and had Congress
intended that an applicant's discharge meet State water quality
standards, then Congress would have provided language so mandating. The
commenter also asserted that 301(h) waiver requirements should be
strictly construed in favor of water quality because 301(h) waivers
represent an exception to the general requirement to meet secondary
treatment. Other commenters supported the proposal to defer to EPA-
approved State water quality standards. The commenters believed that
this approach appropriately recognizes the State's discretion to set
its own standards.
EPA continues to believe that compliance with the EPA-approved,
directly corresponding State water quality standard in lieu of the EPA
section 304(a)(1) water quality criterion is appropriate. EPA water
quality criteria are national criteria, primarily issued to serve as
guidance for the States to use in establishing their water quality
standards under CWA section 303.
Under the CWA, States may develop water quality standards based on
the section 304(a)(1) criteria, as modified to reflect site-specific
conditions, or they may use other scientifically defensible methods for
developing water quality standards. State standards are subject to EPA
review and approval. They are developed by the States to protect the
types of biota in, and beneficial uses of, their local waters, and thus
represent scientifically appropriate standards for each State's
specific situation. EPA does not believe that, in amending section
301(h), Congress intended to interfere with this statutory scheme, nor
require compliance with the national guidance contained in the section
304(a)(1) criteria when the CWA section 303 standard-setting process
results in adoption of different standards to reflect local conditions
and those standards have been subject to EPA review and approval.
Rather, EPA believes that the intent of this provision was to ensure
compliance with the national section 304(a)(1) criteria in those cases
where the States have not adopted a directly corresponding State
standard and EPA has not itself promulgated a standard in light of such
State inaction. Today's final rule therefore retains the proposal's
approach. In the absence of an EPA-approved State water quality
standard that directly corresponds to the section 304(a)(1) water
quality criteria, the final rule requires compliance with the section
304(a)(1) water quality criteria.
For carcinogens, the EPA section 304(a)(1) criteria provide a range
of risk levels and corresponding criterion for each specific risk
level. In the proposal, EPA did not establish a specific risk level for
use in the section 301(h) program. As explained in the preamble (56 FR
2819, 2820), EPA instead would consider all relevant information in
determining the pollutant concentration that represents an appropriate
risk level for a specific carcinogen. This information would include
evidence that the State has consistently used a particular risk level
when establishing its water quality standards for other carcinogens. In
the absence of such a consistent State policy, EPA would consider a
State recommendation of a particular risk level if the State
demonstrates to the satisfaction of EPA that the particular risk level
is justified. The State demonstration would need to account for the
relevant exposure and uncertainty factors, show adequate public
participation in the selection of the risk level, and show that use of
the selected risk level is adequately protective of human health. In
cases where there is no consistent State policy or satisfactory State
demonstration on which to base a risk level, under the proposal, EPA
would set a specific risk level (for example, 10-6) based on the
circumstances of each case. See preamble to the proposed rule, 56 FR
2818-2820, for a detailed explanation of a satisfactory State
demonstration of a recommended risk level and EPA's approach to setting
risk levels.
EPA received a number of comments addressing the issue of whether
to set a specific risk level by regulation as opposed to allowing it to
be set on a case-by-case basis. A commenter stated that rather than
assuming that a zero discharge level is unattainable for any known
carcinogen, EPA should require the discharger to prove that, in fact,
zero discharge in a particular situation either would create severe
economic hardship or is not technologically feasible. These commenters
also stated that under no circumstances involving carcinogenic
pollutants should the allowable discharge exceed a 10-6 risk level
or the applicable State standard, whichever is more stringent. Other
public comments received on the issue of water quality criteria for
carcinogens also said the regulations should specify a human health
risk level that is no less protective than the 10-6 incremental
cancer risk and asserted that EPA had done so in other national
programs. One commenter stated that there should not be a flexible,
case-by-case approach toward establishing risk levels for carcinogens.
Instead, the commenter suggested that EPA establish a minimum risk
level, the least protective risk level that is acceptable, (and
corresponding maximum permissible discharge concentration) but allow
for flexibility to choose a more stringent risk level based upon a
given State's past practice.
With regard to the zero-risk level, as mentioned in the preamble to
the proposed rule, EPA believes that a zero effluent concentration is
essentially unattainable. Therefore, EPA has approved numeric State
water quality standards for carcinogens under CWA section 303 that
correspond to risk levels above zero. The approach adopted in the
proposed rule provides consideration of the State's views on an
appropriate risk level, or in the absence of such State input, provides
for EPA to consider all relevant information in setting a risk level.
EPA believes that establishing a presumption in favor of a zero risk
level would be inappropriate because even apart from questions of
achievability, compliance could not be demonstrated due to limitations
in analytical methods. Further, the commenter provided no basis to
refute EPA's belief that zero risk levels are not achievable. EPA thus
is not amending the regulations to establish a presumptive zero risk
level.
With regard to whether the section 301(h) regulations should
establish a single uniform risk level for use in the section 301(h)
program, the establishment of risk levels is a national issue which is
not limited to the section 301(h) program. As noted in the preamble to
the proposed rule (56 FR 2819), EPA expected that many or most coastal
States already had established or soon would establish one or more EPA-
approved water quality standards for toxic carcinogenic pollutants,
pursuant to section 303(c)(2)(B) of the CWA.
Subsequent to the proposal of these revised section 301(h)
regulations, EPA applied risk levels in the National Toxics Rule, which
sets water quality standards for priority pollutants in States that did
not have approved standards, pursuant to Sections 303(c)(2)(B) and
303(c)(4) of the CWA (57 FR 60848, December 22, 1992). More
specifically, the National Toxics Rule establishes water quality
standards pollutant-by-pollutant for fourteen States that did not have
an EPA-approved standard for the toxic pollutant in question where
section 304(a)(1) water quality criteria have been developed. EPA set
legally enforceable water quality standards with incremental cancer
risk levels for carcinogens and corresponding numeric values based on
specific exposure and other modeling assumptions. It should be noted
that EPA did not adopt a uniform nationwide 10-6 risk level in
other contexts, e.g., the National Toxics Rule, as suggested by a
commenter, who advocated that as a minimum level of protection.
In each State covered by the National Toxics Rule, the carcinogenic
risk level used to set the State's standard(s) was based on the best
information available to the Agency regarding that State's policy or
practice for risk levels used or that should be used in regulating
carcinogens in surface waters. For most of the affected States, the
risk level is based on a State-adopted or formally proposed risk level.
For some, the risk level is based on an expressed State policy
preference. With the National Toxics Rule, all States are now in
compliance with section 303(c)(2)(B). Hence, for purposes of
implementing Sec. 125.62, EPA will now look to the guidance contained
in the preamble and regulations of the National Toxics Rule to
establish the appropriate human health risk level and numeric value in
the absence of a directly corresponding State standard for any section
304(a)(1) criterion later established.
EPA believes that the carcinogenic risk provisions of proposed
Sec. 125.62(a)(2)(ii) are consistent with the National Toxics Rule, 40
CFR Sec. 131.36, and the guidance provided in the preamble to the rule
(57 FR 60848). Accordingly, today's rule at Sec. 125.62(a)(ii) is
promulgated as proposed, with a minor editorial change. In the absence
of an EPA-approved State water quality standard for a carcinogenic
pollutant, the Administrator will consider a consistently used, or
State-adopted or formally proposed risk level recommendation with a
satisfactory demonstration that the level is adequately protective of
human health in light of exposure and uncertainty factors and
population exposed. Exposure factors would include, for example, local
patterns of fish consumption, cumulative effects of multiple
contaminants and local population sensitivities. Factors related to
uncertainty would include, for example, the weight of scientific
evidence concerning exposures and health effects and the reliability of
exposure data.
One commenter noted that determinations of compliance with water
quality criteria will be dependent on the frequency and types of
sampling methods used and the effects industrial users' pretreatment
programs have on effluent quality. The commenter urged a flexible
approach in determining compliance because of these variables. EPA
notes, in response, that the regulations do not specify rigid sampling
requirements and frequencies, and thus already allow for consideration
in designing sampling programs to adequately characterize effluent
quality for purposes of evaluating compliance with water quality
criteria.
New section 301(h)(9) of the CWA requires that the discharge meet
the section 304(a)(1) water quality criteria ``after initial mixing in
the waters surrounding or adjacent to the point at which [the] effluent
is discharged.'' The zone of initial dilution (ZID) is defined in
existing Sec. 125.58(w) as ``the region of initial mixing surrounding
or adjacent to the end of the outfall pipe or diffuser ports, provided
that the ZID may not be larger than allowed by mixing zone restrictions
in applicable water quality standards.'' The existing 1982 regulations
required that all applicable State water quality standards adopted
under section 303 of the CWA be met at and beyond the boundary of the
ZID.
New language was proposed in Sec. 125.62(a)(1)(i) to implement the
requirement of new section 301(h)(9) to comply with the section
304(a)(1) water quality criteria or the directly corresponding State
water quality standards, but inadvertently omitted those State water
quality standards that do not directly correspond to the section
304(a)(1) water quality criteria. In so doing, EPA inadvertently
omitted the existing requirement that all applicable State water
quality standards, including those that do not directly correspond,
must still be met at and beyond the ZID. This requirement has been
retained in the final regulation. For purposes of this discussion,
there are three categories of water quality requirements: State water
quality standards that directly correspond to water quality criteria,
State water quality standards that do not directly correspond to water
quality criteria, and water quality criteria. It is the second
category, those State water quality standards that do not directly
correspond to water quality criteria, that was inadvertently left out
of the proposed regulation.
Two commenters questioned whether the proposed rule, by referring
to the ZID for purposes of calculating compliance with section 303
State water quality standards, raised a potential conflict with State-
specified mixing zones adopted as part of the section 303 standard-
setting process. One of these commenters requested that the regulations
be clarified to specify that compliance with State water quality
standards is to be determined under the methods and conditions
specified by the State in its standards.
EPA agrees that the proposed language could create confusion.
Today's final rule includes the existing requirement of the 1982
regulations that all applicable State water quality standards adopted
under section 303 of the CWA be met at and beyond the boundary of the
ZID and promulgates as proposed the new section 301(h)(9) requirement.
The effect of today's rule is to retain the existing practice of the
section 301(h) program in determining compliance with State water
quality standards. As stated in the preamble to the proposed rule,
EPA's purpose in promulgating these revisions to the regulations on
this issue was to implement the new requirements of the WQA. EPA did
not intend to change existing regulatory requirements not affected by
the WQA. As promulgated today, Sec. 125.62(a)(1) reflects the existing
regulations with the additional requirements of section 301(h)(9) of
the CWA, and EPA intends no changes to how determinations of compliance
with State water quality standards are made.
One commenter pointed to inconsistencies between language in the
technical support document (TSD) on ZID size and the actual definition
of the ZID as contained in Sec. 125.58(dd) of the regulations and
requested that this be addressed by amending the ZID definition. The
ZID definition was not proposed for amendment in the 1991 proposal and
is not being changed today. EPA responded to the comment by adding a
clarification to the final TSD on the technical issues regarding
calculation of the ZID size.
Combined Impacts of Discharge
Section 303(a) of the WQA requires an applicant to demonstrate that
the section 301(h) modified discharge will not interfere, alone or in
combination with pollutants from other sources, with the attainment or
maintenance of water quality to protect the uses specified in section
301(h)(2). As noted in the preamble to the proposed rule (56 FR 2816),
although EPA believes this requirement is consistent with the existing
1982 regulations, EPA added language in proposed Sec. 125.62(f) to
clarify this point. Proposed Sec. 125.62(f) requires an applicant to
demonstrate that its modified discharge meets Sec. 125.62 (a) through
(e), both alone, and taking into account the discharge in combination
with pollutants from other sources.
One commenter noted that cumulative impact assessments would need
to be performed to demonstrate that the POTW is not causing impact
alone or in combination with other dischargers and that the information
needed to make the assessment may not be available. The commenter
recommends that EPA provide sufficient guidance on performing the
needed cumulative impact assessments, including information on regional
waste load allocations, nonpoint source information, beneficial use
quantification, and regional water quality monitoring data. EPA agrees
that such information would be useful in making the required
demonstration of compliance. The availability of such site-specific
information will vary depending on local circumstances. Applicants
should work closely with their EPA Region and State water agencies to
identify possible sources of such information. EPA considered this
comment and made changes to the final TSD for the regulations in order
to provide additional guidance on this issue.
Stressed Waters
EPA received comments on two related aspects of the statutory
requirements and regulatory provisions regarding stressed waters: (1)
Demonstrating that no causal relationship exists between stressed
conditions and the applicant's discharge, and (2) prohibitions on
301(h) modified discharges to stressed saline estuaries. One commenter
on Sec. 125.62(f) (1) through (3) (the ``stressed waters test'')
requested that EPA state that an applicant can still make the
demonstration required by Sec. 125.62(f) (1) through (3) by showing
that no causal relationship exists between the stressed conditions and
the applicant's discharge. Other commenters supported the continued
requirement to demonstrate that no causal relationship exists between
the stressed conditions and the proposed section 301(h) modified
discharge. As previously noted, paragraphs (f) (1) through (3) are the
same as provisions contained in the existing 1982 section 301(h)
regulations, and applicants must demonstrate an absence of a causal
relationship between their discharge and stressed conditions as
specified in those paragraphs. The three substantive requirements for
such a demonstration were not proposed for change. As in the past,
applicants invoking this provision may avoid the need to demonstrate
compliance with paragraphs (a) through (e) by demonstrating that the
modified discharge does not:
(1) Contribute to, increase or perpetuate stressed conditions;
(2) Contribute to further degradation; and
(3) Retard recovery if perturbations from other sources decrease.
To reiterate, despite the addition of the word ``entirely,'' an
applicant still can make the demonstration required by Sec. 125.62(f)
(1) through (3) by showing that no causal relationship exists between
the stressed conditions and its proposed discharge.
Prior to the 1987 WQA, section 301(h) and the 1982 implementing
regulations allowed section 301(h) modified discharges to stressed
waters only under certain limited conditions, with no distinction made
between stressed saline estuaries and stressed ocean waters. The 1987
WQA amendments tighten this restriction with respect to saline
estuaries by prohibiting section 301(h) modified discharges altogether
to saline estuaries that are stressed (i.e., that exhibit certain
characteristics specified in the statute). The amendments also specify
that this prohibition applies without regard to whether it is the
applicant's discharge that is causing or would cause the stressed water
quality conditions. To implement this new statutory prohibition, EPA
proposed a change to the existing regulations regarding stressed
waters. EPA proposed adding this new prohibition to Sec. 125.59(b)(4),
and making conforming changes to Sec. 125.62(f) to prohibit section
301(h) waivers where stressed saline estuaries are involved. Section
125.62(f) is the provision that allows discharges to stressed waters
under certain conditions. The proposal altered this provision so that
such discharges would be allowed only with respect to stressed ocean
waters and not saline estuarine waters.
Commenters expressed the view that Congress did not intend to make
section 301(h) waivers available for any severely degraded waters,
whether in estuaries or oceans, and recommended limiting the reach of
the stressed waters exception to those locations where severe
environmental degradation has not occurred. The commenters noted that
if an exception must be available to POTWs discharging to stressed
waters, the commenters supported the approach taken in proposed
Sec. 125.62(f). In response to this comment, EPA notes that the 1987
WQA flatly prohibits section 301(h) modifications with respect to
stressed estuaries only. In contrast, applicants can satisfy 301(h)(2)
by showing that their discharges will not ``interfere, alone or in
combination,'' with certain water quality objectives. EPA continues to
believe that Sec. 125.62(f) fully meets this statutory directive. There
is no basis for the suggestion that Congress intended categorically to
prohibit waivers with respect to all stressed waters. Indeed, the
legislative history cited by the commenter does not lead to a contrary
opinion. EPA believes that the provisions adopted in today's final
regulations to implement the WQA prohibition on discharges to stressed
estuaries are fully consistent with the statute and that extending this
prohibition to ocean waters would be inconsistent with the plain
statutory language. Accordingly, the stressed waters provision in this
section is promulgated as proposed.
Section 125.63: This section outlines the general requirements for
monitoring programs required under section 301(h)(3) of the CWA. In the
proposal, EPA added language to this section to respond to section
303(b) of the WQA, which restricts the required scope of section 301(h)
biological monitoring programs to those scientific investigations
necessary to study the effects of the proposed discharge. EPA also
noted in the preamble to the proposed rule that the requirements of
such monitoring programs under the existing regulations are in fact
already focused on the effects of the discharge. The proposal also
added a requirement that applicants monitor their discharges to ensure
compliance with water quality criteria (if applicable under
Sec. 125.62(a)), in addition to water quality standards based on the
provision of section 301(h)(9).
EPA received one comment regarding monitoring. The commenter
requested that EPA add a provision for amending monitoring programs in
existing permits, including permits administratively extended beyond
their expiration dates, when the changes are technically justified. EPA
appreciates that changes to section 301(h) monitoring programs during
the life of the permit may be appropriate. EPA notes that this is a
procedural issue governed by the NPDES regulations and is not the
subject of this rulemaking. See 40 CFR 122.6.
Monitoring for Removal Efficiency Requirements
Some commenters suggested that the demonstration of removal
efficiency (defined as removal of 30 percent of BOD and TSS) should be
made throughout the year, and not simply at the time the modification
becomes effective. Other comments suggested that EPA require a
demonstration of removal efficiency of BOD as an initial threshold
determination only, that is, a one-time demonstration. In response, EPA
believes that demonstration of the removal efficiency should be an
ongoing requirement, and Sec. 125.60(b) requires that compliance be
demonstrated based on monthly averaging, as proposed (subject to the
exceptions discussed above). In addition, the statute does not state a
one-time requirement but instead envisions an ongoing requirement that
the applicant ``will be'' discharging effluent that has received
primary treatment. Given the statutory requirement for primary
treatment, it would make little sense to require a one-time
demonstration of removal efficiency, with the possible result that
less-than-primary treatment could occur during the course of the
section 301(h) modified permit and go undetected.
To ensure that data are available for purposes of section 301(h)
permit renewals, ongoing monitoring of compliance with the removal
efficiency requirement is necessary. EPA thus continues to believe that
section 301(h) permittees should monitor for compliance with the
primary treatment requirement over the life of the permit at the
frequency required in Sec. 125.60 (i.e., monthly, unless a less
frequent monitoring period is specified). Although already required in
Sec. 125.60(b), to clarify this point the final rule adds a new
paragraph, Sec. 125.63(d)(2), to ensure that the permit monitoring
requirements provide adequate data for demonstrating compliance with
the removal efficiency requirement over the life of the permit.
EPA is also making a conforming change to Sec. 125.63(a)(1)(i) to
clarify that monitoring programs must be designed to evaluate water
quality criteria, as well as water quality standards. This conforms to
the proposed change in Sec. 125.63(c), reflecting WQA language.
Changes to Monitoring Requirements
Some commenters requested that EPA identify the practical impact
the new limitation on the scope of monitoring will have on current
monitoring programs. As previously discussed, EPA does not believe that
WQA language limiting section 301(h) biological monitoring to
investigations necessary to evaluate the discharge effects represents a
substantial change in the program. The purpose of the required
monitoring programs has always been to evaluate discharge effects.
Since the monitoring program was already focused on evaluating
discharge effects, the new statutory and regulatory language should not
result in substantial changes to existing monitoring programs.
Other commenters expressed concern over potentially increased
monitoring costs. The additional monitoring requirements to ensure
compliance with the WQA's water quality criteria and primary or
equivalent treatment requirements are a necessary and reasonable
outgrowth of those new statutory requirements. Given those substantive
requirements and the need for data to evaluate continued compliance and
to support future requests for permit renewal, EPA believes it is
necessary to require monitoring in these areas. As with other section
301(h) monitoring requirements, the exact nature and frequency of such
monitoring by a particular applicant would be set on a permit-by-permit
basis in order to reflect individual circumstances. Burdens associated
with these monitoring requirements were addressed in the supporting
documentation for the information collection request accompanying the
regulations. Although some extra costs may be incurred, many of these
are one-time costs, and are not excessive, especially in light of the
economic benefits to the discharger receiving a section 301(h) waiver.
Section 125.64: This section contains criteria related to the
impacts of the modified discharge on other point and nonpoint sources
and implements section 301(h)(4) of the CWA. There were no proposed
changes to this section and no comments were received. This section
remains unchanged.
Section 125.65: This new section sets forth the urban area
pretreatment program requirements of section 303(c) of the WQA (CWA
section 301(h)(6)). These requirements apply to POTWs serving a
population of 50,000 or more, with respect to any toxic pollutant as
defined by Sec. 125.58(aa) introduced into the POTW by an industrial
source. Applicants subject to this provision must demonstrate that
industrial sources are in compliance with all applicable pretreatment
requirements, and that the applicant will enforce those requirements.
Also, for each toxic pollutant for which there is no applicable
pretreatment requirement in effect, the applicant must have in effect a
pretreatment program which, in combination with the treatment of
discharges from the POTW, removes the same amount of such pollutant as
would be removed if the POTW were to apply secondary treatment and had
no pretreatment program for such pollutant.
To implement these provisions, the proposed rule added Sec. 125.65
and added or revised certain definitions in Sec. 125.58. Proposed
Sec. 125.65(a)(2) clarified that the requirements of Sec. 125.65 are to
apply in addition to any applicable pretreatment requirements contained
in 40 CFR part 403 and that nothing in Sec. 125.65 is intended to waive
or relax the 40 CFR part 403 requirements.
Section 125.65 provides two methods for satisfying the urban area
pretreatment requirements. For each toxic pollutant introduced by an
industrial discharger, the applicant must demonstrate that it either
(1) has an ``applicable pretreatment requirement in effect'' or (2) has
in effect a program that achieves ``secondary removal equivalency.''
EPA received a number of comments requesting clarification of this
provision, as well as comments related to pretreatment requirements,
which toxic pollutants should be subject to urban area pretreatment
requirements, demonstration of secondary equivalency, and enforcement
of pretreatment requirements.
Scope of Pollutants to be Addressed
Some commenters believe that the urban area pretreatment program
requirements should apply only to ``pollutants of concern,'' rather
than applying to all priority pollutants introduced by industrial
dischargers. Commenters were concerned that the requirements might be
interpreted to apply to all 126 priority pollutants, whether or not
these are known or suspected to be discharged to the POTW by industry.
They believe the urban area pretreatment requirements should be limited
to those priority pollutants that are specifically known to pose a
threat or potential threat to human health, safety, or environmental
quality. These commenters stated that pollutants of concern should not
include pollutants that do not pose such a risk and provided several
options for identifying pollutants of concern, i.e., by excluding from
coverage pollutants (1) only discharged in small amounts by one
industry; (2) meeting water quality standards at the boundary of
initial mixing; (3) discharged in effluent at a threshold level percent
of an applicable water quality standard, criterion, or permit limit;
(4) discharged in low concentrations; (5) which do not interfere or
threaten to interfere with the attainment or maintenance of water
quality objectives as found in Sec. 125.62; or (6) not detected in the
effluent of the POTW. These commenters felt that developing local
limits for all toxic pollutants would be difficult and overly
burdensome. The commenters further stated that a distinction should be
made between significant and insignificant industrial dischargers.
EPA has not adopted these suggested changes in today's rule. The
statute clearly states that the urban area pretreatment requirement
applies to any toxic pollutant introduced into the POTW by an
industrial discharger. Therefore, EPA believes the regulations should
address all such toxic pollutants. However, this means only those toxic
pollutants known or suspected to be introduced to the POTW by an
industrial discharger. Thus, if all 126 priority pollutants are not
discharged to a given POTW, not all 126 priority pollutants will need
an applicable pretreatment requirement, e.g., categorical standard or
local limit. EPA notes, however, that the industrial user's survey must
be comprehensive, addressing all non-domestic sources, to assure that
the POTW takes all toxics from industrial sources into account.
Guidance is provided in the TSD to help identify toxics known or
suspected to be discharged from several industries not subject to
categorical pretreatment regulations.
One commenter asserted that receiving waters should be the focus of
this requirement; that is, it is inappropriate to have technology-based
requirements when receiving waters do not warrant them. The commenter
further stated that the requirement should focus on whole effluent
toxicity. In response, EPA notes that the statutory provision is
technology-based, and refers to each toxic pollutant introduced by
industrial sources. Other Clean Water Act provisions address whole
effluent toxicity and this has been taken into account.
Applicable Pretreatment Requirements
As specified in Sec. 125.65(c) of the proposed regulations,
applicable pretreatment requirements could take the form of federal
categorical pretreatment standards promulgated by EPA under section 307
of the CWA, local limits developed in accordance with 40 CFR part 403,
or a combination of both. As proposed, therefore, applicable
pretreatment requirements consist of the following as stated in
Sec. 125.65(c):
(i) for each industrial source discharging to the applicant's
treatment works for which there is no applicable categorical
pretreatment standard for the toxic pollutant, a local limit or limits
on the toxic pollutant satisfying the requirements of 40 CFR part 403
and Sec. 125.62;
(ii) for each industrial source discharging to the applicant's
treatment works that is subject to a categorical pretreatment standard
for the toxic pollutant, the categorical standard plus a local limit or
limits as necessary to satisfy the requirements of 40 CFR part 403 and
Sec. 125.62.
One commenter stated that ``applicable pretreatment requirements''
should be developed to ensure compliance with 40 CFR part 403 and not
also to ensure compliance with requirements in Sec. 125.62, which
addresses protection of a balanced indigenous population (BIP). This
commenter pointed out that the requirements to achieve a BIP already
must be satisfied under Sec. 125.62 if the section 301(h) permit
modification is to be granted. Further, it is unnecessarily restrictive
to specify that the BIP requirements be met by applying local limits
rather than through other means.
EPA agrees and has clarified this provision in the final rule by
deleting the reference to Sec. 125.62 from Sec. 125.65 (c)(1) (i), (ii)
and (2). Any section 301(h) discharge must comply with the BIP
requirements of the regulations, but how this is achieved, whether by
local pretreatment standards or other toxics control measures, is at
the discretion of the applicant. The Agency never intended to require
that local limits alone must be shown to independently protect a BIP.
The intent was that local limits would be developed to meet 40 CFR part
403 and Sec. 125.65 and would be at least one aspect of overall toxic
control efforts by the applicant that would contribute as a whole to
meeting the requirements of a BIP. It should be noted, however, that
conditions necessary to achieve and perpetuate a BIP may be used as a
basis for setting a local limit.
Because the regulations already require compliance with
Sec. 125.62, and in light of the concerns raised over linkage of local
limits to the Sec. 125.62 requirement, EPA is making this change to the
final regulations. This change does not alter the requirement to meet
all other section 301(h) provisions.
Some commenters believe that provisions should be included for
local limits to consider sludge quality and the potential for air toxic
emissions. Under the Agency's existing local limit program under 40 CFR
part 403, and sewage sludge regulations at 40 CFR parts 257, 403 and
503, local limits may be required where necessary to protect sludge
quality so as not to interfere with its management and ultimate
disposal or beneficial use, and where necessary to protect plant
workers. The pretreatment regulations address air toxic emissions
within the POTW to protect worker health and safety. The commenters'
concerns regarding sludge quality and incineration, and resultant air
emissions are addressed by the Agency's pretreatment regulations,
sewage sludge regulations and regulations under the Clean Air Act. The
Agency has begun to address standards for air toxic emissions from
POTWs.
The comments taken as a whole show some confusion about how EPA
expects the ``applicable pretreatment requirement in effect'' provision
of the urban area pretreatment program to be implemented. Commenters
were concerned that these requirements were overly burdensome and
sought flexibility. Commenters pointed out that requirements for every
industrial user are unnecessary for ensuring an adequate local limit
for the toxic pollutant. After considering these comments, EPA has
revised its approach as follows. First, the POTW need not apply a
specific local limit to each and every industrial source of each toxic
pollutant. Instead, after conducting a local limits analysis, the POTW
may apportion the allocation to industrial sources of the toxic in the
way that the POTW deems most appropriate, subject to the approval of
the Regional Administrator. This could include not imposing any limit
for the pollutant on certain industrial users. This modification should
achieve the same end result as the proposal, that is, to attain the
same level of toxic pollutant reduction, while providing flexibility to
the POTW to implement the provision. The Guidance Manual on the
Development and Implementation of Local Discharge Limitations under the
Pretreatment Program discusses how to allocate local limits among
industrial sources for all POTWs, not just 301(h) applicants. EPA
believes that the approach of POTWs under 301(h)(6) should be
consistent with that guidance. This approach is less burdensome to
implement while still achieving equivalent reductions in toxics.
Second, the applicant can show an ``applicable pretreatment
requirement in effect'' for those toxic pollutants for which there is
no applicable categorical pretreatment standard, and for which the
applicant determines, based on the 40 CFR part 403 analyses, that a
local limit is not necessary. The permit in these cases will require
the applicant to demonstrate on an annual basis over the permit term,
that a local limit is not necessary and, where appropriate, will
require the applicant to institute industrial management practices
plans.
The following steps are intended to clarify how EPA will implement
the ``applicable pretreatment requirement in effect'' provision for
toxic pollutants:
(1) The applicant must conduct an industrial user survey as
required by 40 CFR part 403 and Sec. 125.66;
(2) The applicant must conduct representative sampling and analysis
of the POTW's influent, effluent, and sludge for toxic pollutants;
(3) The applicant must implement the national categorical standards
for each industrial source subject to categorical standards;
(4) For those toxic pollutants known or suspected to be introduced
by an industrial source, the applicant must conduct an analysis under
40 CFR part 403 to assess the need for local limits;
(5) For those toxic pollutants for which the applicant determines,
based on the 40 CFR part 403 analysis, a need for local limits, the
applicant must set local limits;
(6) For those toxic pollutants for which the applicant determines,
based on the 40 CFR part 403 analysis, that local limits are not
necessary, the applicant must continue to monitor the POTW influent and
effluent during the term of the permit and/or conduct technical reviews
of data on discharges from industrial sources during the term of the
permit, and where appropriate require industrial users to institute
industrial management practices plans (IMPs) and other pollution
prevention activities, to reduce or control the levels of these toxic
pollutants from industrial sources. These plans and activities could
include Best Management Practices (BMPs). See TSD and EPA Guidance
Manual on the Development and Implementation of Local Discharge
Limitations under the Pretreatment Program (1987 and 1991). For these
toxic pollutants, applicants would be required to assure EPA on an
annual basis that these particular toxic pollutants do not result in
levels that warrant development of local limits. If such monitoring and
technical review of data indicate that a local limit is needed, the
POTW shall establish and implement a local limit.
The basic philosophy of instituting industrial management practice
plans (IMPs) is to minimize the discharge of toxic or hazardous
pollutants to the sewer, or reduce the impact of toxic/hazardous
pollutant discharges by avoiding short-term, high concentration
discharges. IMPs can be applied to all classes of industrial users,
e.g., major and minor industrial users. Examples of appropriate uses of
IMPs include control of chemical spills and sludge discharges to the
POTW through formal chemical or waste management plans (including
BMPs), solvent management plans, batch discharge policies, waste
recycling and waste minimization. It would also be appropriate to
consider IMPs in cases where the POTW does not include biological
treatment processes, or provides less treatment, e.g., primary
treatment.
In these cases, IMPs can be tailored for industrial sources of
toxic pollutants that might otherwise interfere with biological
treatment or would be degraded or removed through additional treatment.
EPA has added this information to the regulations in response to
comments. The intent of these steps is to set forth a process that is
not overly burdensome for applicants but that assures that applicable
pretreatment requirements are in effect for each toxic pollutant.
Secondary Removal Equivalency
Under section 301(h)(6) and Sec. 125.65, where there is no
applicable pretreatment requirement as described above for a toxic
pollutant known or suspected to be introduced by an industrial
discharger, the applicant must demonstrate that it has in effect a
pretreatment program which, in combination with the POTW's own
treatment of discharges, removes the same amount of the pollutant as
would be removed if the POTW were to apply secondary treatment to
discharges and if such works had no pretreatment program with respect
to the pollutant.
EPA has termed this the ``secondary removal equivalency''
requirement and the proposed rule added this term to the definitions in
Sec. 125.58(w). To meet the ``secondary removal equivalency''
requirement, the applicant must demonstrate that the combination of its
own treatment plus pretreatment by industrial dischargers achieves
``secondary removal equivalency.''
Under today's final rule, to demonstrate secondary removal
equivalency, an applicant would need to use a secondary treatment pilot
plant. By diverting part of its waste stream to the pilot plant after
primary treatment, the applicant would empirically determine the amount
of a toxic pollutant that would be removed from the waste stream if the
applicant were to apply full-scale secondary treatment. The applicant
would then need to demonstrate to EPA that it has a pretreatment
program in effect which, in combination with its own treatment
processes, removes at least that total amount of toxic pollutant from
the POTW's discharge, achieved through concentration- and mass
emissions-based effluent limits. If at least that amount is not
removed, then further reductions of the pollutant would be required.
The NPDES permit will include concentration and/or mass emissions
effluent limits based on the data from the secondary equivalency
demonstration when those values are more stringent than effluent limits
based on State water quality standards or water quality criteria, if
applicable, and to assure that all of the Sec. 301(h) criteria are met.
Once such effluent limits are established in an NPDES permit, the POTW
may either establish local limits or perform additional treatment at
the POTW, or combine the two to achieve the permit limit.
Some commenters thought that they would be penalized for having an
existing pretreatment program if they used pretreated waste to
determine secondary equivalency, because of the undetermined removals
by current industrial pretreatment. They urged the use of procedures
for determining pre-existing (prior to source control) conditions to
take into account existing toxic pollutant reductions and commented on
the difficulty of obtaining ``unpretreated'' industrial wastewaters.
Other commenters thought that the secondary removal equivalency
demonstration should be made with all other pretreatment requirements
required by section 301(h)(5) in place, because they reasoned that the
section 301(h) program does not provide waivers from the toxics
requirements.
EPA agrees that the section 301(h) program does not provide a
waiver from toxics control requirements, and the existing section
301(h) program already has toxics control requirements, including
industrial pretreatment, in effect. However, the secondary removal
equivalency provision of section 301(h)(6) addresses only those toxic
pollutants that do not have applicable pretreatment requirements in
effect, and that are being introduced by industrial sources to POTWs
serving urban areas.
POTWs will not be penalized for having an applicable pretreatment
requirement in effect for a particular toxic pollutant. If the POTW has
an applicable pretreatment requirement in effect for a specific toxic
pollutant, as described in Sec. 125.65, it will be in compliance with
Sec. 125.65 with respect to that pollutant, and the POTW will not need
to comply with the ``secondary removal equivalency'' requirement for
that pollutant.
There may, however, be reduced levels of other toxics that are
discharged to the POTW owing to incidental removals from applicable
pretreatment requirements targeted to remove specific toxic pollutants.
Likewise, there may be reduced levels of a specific toxic pollutant
discharged to the POTW from categorical pretreatment for that toxic
pollutant that may not satisfy the conditions of an applicable
pretreatment requirement in effect. Because neither of these two above
situations satisfy the requirements of ``applicable pretreatment
requirement in effect'' with respect to these toxic pollutants, the
applicant would need to demonstrate secondary removal equivalency for
them. It may be true that the cumulative removal will be lower if
pretreated influent is used. EPA does not expect this situation to
occur often because if an applicable pretreatment requirement exists
for a particular toxic pollutant, then a secondary removal equivalency
demonstration is not needed for that toxic pollutant. This situation is
only likely if some pretreatment occurs for other pollutants.
One commenter asserted that secondary treatment removal equivalency
is highly impractical and appears to resurrect EPA's discredited
``removal credit'' system. In response, the statute focuses on the
levels of toxic pollutants that are removed through a combination of
pretreatment and POTW treatment processes, regardless of where the
removal occurs.
Some commenters felt that the term ``removals'' should not include
removals obtained by air volatilization and through sludge because this
is simply a transfer of a pollution problem between media. EPA notes
that removals obtained by a secondary pilot plant are used simply to
determine the amount of additional pretreatment and/or POTW treatment
if any, that would be needed to meet secondary removal equivalency. For
purposes of achieving removals through a combination of a POTW's
treatment and pretreatment, EPA will not consider pollutants that
remain in sludge or are volatilized as removed, except those removals
that are consistent with sludge and pretreatment regulations. As noted
in the discussion on ``applicable pretreatment requirements,'' EPA's
pretreatment and sludge regulations do apply in any case to any POTW
treatment processes and sludge produced from the POTW.
Some commenters suggested that EPA identify technology-based limits
for demonstrating secondary removal equivalency, citing EPA's Fate of
Priority Pollutants in Publicly Owned Treatment Works, Vol. I (Sept.
1982) and Vol. II (Sept. 1982) as a basis for establishing such limits.
In response, in EPA's judgement, the above cited studies demonstrate
that each POTW's influent is unique based on a variety of factors.
Secondary treatment removes toxics incidental to the technology for
reducing BOD and SS, and results in great variability in the levels of
toxic and non-conventional pollutants in effluent and sludge. The Act
clearly puts the burden on the applicant to demonstrate and not on EPA
to develop uniform technology-based standards. In any event, developing
uniform technology-based standards would be very difficult because of
the variability of influents, pretreatment levels, and other site-
specific conditions. Therefore, EPA has not developed technology-based
limits representing characteristic removal of toxic pollutants from
secondary treatment.
Commenters also asked EPA to address the costs of the pilot plant
approach. These costs are addressed in the Economic Impact Analysis.
In summary, for those toxic pollutants for which there is no
applicable pretreatment requirement in effect, the POTW must either (1)
develop and implement an applicable pretreatment requirement or (2)
demonstrate, through a combination of pretreatment by industry and the
POTW's own treatment processes, that it removes at least as much of the
toxic pollutant as would be removed by a POTW that applies secondary
treatment and that has no pretreatment program for the pollutant.
Guidance is provided in the TSD.
Compliance Determination
Several commenters stated that EPA needs to address how a POTW will
demonstrate that all of its industrial dischargers are in compliance
with the pretreatment requirements and that EPA would allow less than
100 percent compliance. Some suggested that EPA should allow POTWs to
demonstrate compliance with all applicable pretreatment requirements by
taking all appropriate legal and administrative enforcement actions to
enforce pretreatment requirements. Others thought that accommodating
less than 100 percent compliance would introduce considerable
uncertainty concerning the level of compliance EPA will deem to be
adequate and the regulations should identify a definite standard by
which to gauge compliance with this new standard. In addition,
commenters have provided examples of when less than full compliance
will be considered acceptable, such as instances of trivial or isolated
violations.
For urban area POTWs with significant numbers of industrial users,
at any given time, it is reasonable to expect that at least one or more
of those users might be out of compliance. EPA intends to determine a
POTW's continuing eligibility for a 301(h) waiver under section
301(h)(6) by measuring industrial user compliance and POTW enforcement
activities against existing criteria in the Agency's National
Pretreatment Program. In the proposed rule, EPA explained that it would
consider the issue of compliance with the pretreatment requirements on
a case-by-case basis, taking into account the number and nature of non-
compliances. In 1989, EPA established criteria for determining POTW
compliance with pretreatment implementation obligations. One element of
these criteria is the level of significant noncompliance of the POTW's
industrial users. The General Pretreatment Regulations (part 403)
identify the circumstances when industrial user noncompliance is
significant. The industrial user significant noncompliance (SNC)
criteria are set out in 40 CFR 403.8(f)(2)(vii) and address both
effluent and reporting violations. This policy is consistent with the
approach in the proposed rule. The General Pretreatment Regulations,
however, are more explicit. In response to public comments, EPA has
changed the approach in today's final rule to be consistent with Agency
enforcement policy and to remove uncertainty.
For pretreatment purposes, a POTW's enforcement program is
considered adequate if no more than 15 percent of its industrial users
meet the SNC criteria in a single year. A similar level of industrial
user SNC rate will generally be applicable to POTWs with 301(h)
waivers, but will be subject to facility-specific conditions. In
addition, a POTW is also considered in SNC if it fails to take formal
appropriate and timely enforcement action against any industrial user,
the wastewater from which passes through the POTW or interferes with
the POTW operations.
In enforcing the pretreatment programs, POTWs are expected to
respond to industrial user noncompliance using local enforcement
authorities in accordance with an approved enforcement response plan
(ERP) which is required of all approved pretreatment programs (see 40
CFR 403.5). POTWs, including 301(h) POTWs, with greater than 15 percent
of their users in SNC, or which fail to enforce appropriately against
any single industrial user causing pass through or interference, are
deemed to be failing to enforce their pretreatment program.
EPA will base its determination on data collected during site
visits to the POTW and from the POTW's pretreatment program performance
report required by 40 CFR 403.12(i). These reports include compliance
information on industrial users gathered by the POTW as well as a
description of the enforcement activities of the POTW. EPA believes
that the combination of industrial user compliance and POTW enforcement
provides an appropriate measurement of the POTW's eligibility for the
301(h) waiver under section 301(h)(6).
This interpretation is consistent with the directives in a Senate
Report on an earlier version of the bill (see S. Rep. No. 1128, 99th
Cong., 1st Sess. 14 (1985)) as discussed in the proposal (56 FR 2817).
EPA notes that approval of the 301(h) waiver, which requires that the
POTW applicant demonstrate that its industrial users are in compliance
with their applicable pretreatment requirements, provides a substantial
incentive to the POTW to assure that its industrial users are in
compliance with all applicable pretreatment requirements. EPA believes
that an approach relying on a determination of SNC is preferable to
focusing on trivial or isolated violations, or other suggested methods,
because it gives clear guidelines and is consistent with the
enforcement approach in the pretreatment program.
Section 125.66: This section includes provisions for industrial
pretreatment and control of toxic pollutants from nonindustrial
sources. To update compliance deadlines, the proposal made a minor
change in Sec. 125.66 (c)(1)) regarding deadlines by which applicants
were required to develop approved pretreatment programs. No comments
were received on this section and it is being promulgated as proposed.
Section 125.67: This section discusses the criteria related to
increased discharges and implements section 301(h)(8) of the CWA. No
changes were proposed for this section, and no comments were received.
It remains unchanged.
Section 125.68: This section sets forth special permit conditions
to be included in section 301(h) modified NPDES permits. No changes
were proposed for this section, and no comments were received. It
remains unchanged.
Application questionnaires: Under the section 301(h) regulations
promulgated in 1982, there are two application questionnaires
(questionnaire is defined in Sec. 125.58), one for use by small
applicants and one for use by large applicants. The proposal merged
these into a single questionnaire and added questions as necessary to
respond to the new requirements of the WQA. No comments were received
on the proposed changes, and they are promulgated today as proposed.
Other Issues and Comments
EPA received several technical and minor comments on the draft
amended TSD guidance document and some comments that addressed the
regulations or 301(h) program in general. EPA responded to many
comments by making changes to the TSD as appropriate. The changes are
not discussed here. Below are responses to comments for which no change
was made in the TSD, and responses to the general comments.
One commenter suggested that it is important that significant
flexibility be provided in making determinations regarding the impacts
of other sources on water quality until more definitive information is
available for nonpoint and other source categories. The commenter also
states that this section appears to be in conflict with Sec. 125.63(b)
which limits the monitoring program to only those scientific
investigations necessary to study the effects of the proposed
discharge. In response, the regulations already address the cumulative
impacts of a discharge as an integral piece of information necessary to
analyze the balanced indigenous population requirements of 301(h). It
is not in conflict with Sec. 125.63(b). The effects of the proposed
discharge are evaluated in the context of the receiving water
environment, alone and in combination with other sources of pollutants.
Another comment recommended that the guidance document be changed
to require that a date and approval sequence between the State and EPA
Region be mutually agreed-upon, rather than requiring compliance with
Sec. 125.59(f)(4), which requires State determinations to be due to the
regions no later than 90 days after an application is submitted to EPA.
In response, the TSD simply reflects the regulatory language, which was
not proposed for change and is not a subject of this rulemaking.
Another commenter asked that the guidance better define what is
meant by ``significant ecological change.'' This comment is beyond the
scope of this rulemaking. The approach to defining a balanced
indigenous population (BIP) was not proposed for change and EPA is not
considering redefining the BIP.
A commenter suggested that the approach to 301(h) waivers should be
based on water quality effects and not on any ``equivalencies.''
Another commenter suggested that if high BOD levels are allowed for
industrial dischargers under effluent guidelines for certain
industries, why do we require the 30% removal of BOD and SS for
municipal effluents? In response to both these comments, the statute
does not provide us leeway on these issues. The statute is clear on its
face in requiring equivalency testing and the removal of 30% of BOD and
SS.
One commenter requested that strong consideration be given to
centralizing the evaluation of waiver requests. While this comment is
beyond the scope of this rulemaking, we recognize the consistency and
efficiency this might suggest. However, 301(h) waiver applications are
handled case by case, based on site-specific circumstances. Although
there is national oversight on the implementation of the program,
regional evaluation provides the ability to apply regional expertise on
regional and local circumstances surrounding 301(h) applications.
EPA also received requests from commenters for additional time to
comment. EPA accommodated these requests and considered all comments
received in developing this final rule. Others requested that EPA
notify industrial users of the proposal. In response, EPA gave a 60 day
public comment period, which EPA believes to be adequate notice for all
affected parties.
III. Supporting Documentation
A. Regulatory Flexibility Act
Under the Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et
seq.), federal agencies must, when developing regulations, consider the
impact of the regulations on small entities (small businesses, small
government jurisdictions, and small organizations). To evaluate whether
this rule will have a significant economic impact on a substantial
number of small entities, the Agency has prepared an Economic Impact
Analysis (EIA). The Agency has concluded, based on the EIA, that this
rule does not unduly impact on small communities in terms of overall
cost of compliance. Specifically, none of the small communities will
end up spending more than 1 percent of median household income on
wastewater treatment. Moreover, although current treatment costs may
increase, small communities will still realize an overall cost savings
if less than secondary treatment is approved through the section 301(h)
process.
There were 51 applicants or permittees in the section 301(h) permit
program at the time of the economic analysis. Out of these 51
applicants or permittees, only six are both expected to incur
additional costs due to the primary or equivalent treatment
requirements and meet the Small Business Administration (SBA)
definition of a small entity (a service area with a population of less
than 50,000). All those applicants or permittees subject to and
expected to incur additional costs due to the urban area pretreatment
requirements and one of the permittees expected to incur additional
costs due to the primary or equivalent treatment requirements have
service area populations of greater than 50,000, and thus are not small
entities. On a national level, the total estimated capital cost of
meeting the primary or equivalent treatment requirements for the six
small entities amounts to less than $7.2 million, with an associated
operations and maintenance cost of $465,000 per year. Assuming a 20-
year repayment schedule, the total annualized cost, for the six small
entities, equals approximately $675,000 a year. After compliance with
the primary or equivalent treatment requirements, the total annual
sewer fee charged by these ten small entities is less than 1 percent of
the community's median household income. Consequently, none of the
small entities affected by this rule are expected to incur significant
economic impacts, especially in light of the overall savings garnered
by these communities from not having to comply with secondary treatment
requirements.
In summary, I certify that this rule will not have a significant
economic impact on a substantial number of entities.
B. Executive Order 12866
Under Executive Order 12866, [58 Federal Register 51735 (October 4,
1993)] the Agency must determine whether the regulatory action is
``significant'' and therefore subject to OMB review and the
requirements of the Executive Order. The Order defines ``significant
regulatory action'' as one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive order.
It has been determined that this rule is not a ``significant
regulatory action'' under the terms of Executive Order 12866 and is
therefore not subject to OMB review.
C. Paperwork Reduction Act
The information collection requirements of this rule have been
approved by the Office of Management and Budget (OMB) under the
Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and have been assigned
control number 2040-0088.
The estimated average annual burden hours for the collection of
information is approximately 1,006 hours per POTW respondent, and 120
hours per State respondent. Of that, the incremental burden from these
regulatory changes is approximately 192 hours per small facility, 256
hours per large facility, and 40 hours per State respondent. These
estimates include the time for reviewing instructions, for POTWs to
collect information to comply with this final rule, including
conducting monitoring and toxics control activities, and completing and
submitting the applicant questionnaire, as well as time for States to
prepare the State determinations and certifications. No comments were
received on the information collection requirements.
Send comments regarding the burden estimate or any other aspect of
this collection of information, including suggestions for reducing this
burden to Chief, Information Policy Branch, EPA, 401 M Street, S.W.,
(Mail Code 2136), Washington, D.C. 20460; and to the Office of
Management and Budget, Washington, D.C. 20503, marked ``Attention: Desk
Officer for EPA.''
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: July 14, 1994.
Carol M. Browner,
Administrator.
For the reasons set out in the preamble, part 125 of Title 40 of
the Code of Federal Regulations is amended as set forth below. Note:
For clarity, EPA has set forth below part 125, subpart G in its
entirety. However, the Agency is amending only portions of these
regulations in today's notice. Although the existing portions of
subpart G that EPA is not amending are also set forth below, EPA did
not reconsider those portions and they are not subject to challenge as
part of this final rulemaking.
PART 125--CRITERIA AND STANDARDS FOR THE NATIONAL POLLUTANT
DISCHARGE ELIMINATION SYSTEM
1. The authority citation for 40 CFR part 125, subpart G is revised
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.
2. 40 CFR part 125, subpart G is revised to read as follows:
Subpart G--Criteria for Modifying the Secondary Treatment Requirements
Under Section 301(h) of the Clean Water Act
Sec.
125.56 Scope and purpose.
125.57 Law governing issuance of a section 301(h) modified permit.
125.58 Definitions.
125.59 General.
125.60 Primary or equivalent treatment requirements.
125.61 Existence of and compliance with applicable water quality
standards.
125.62 Attainment or maintenance of water quality which assures
protection of public water supplies; assures the protection and
propagation of a balanced, indigenous population of shellfish, fish,
and wildlife; and allows recreational activities.
125.63 Establishment of a monitoring program.
125.64 Effect of the discharge on other point and nonpoint sources.
125.65 Urban area pretreatment program.
125.66 Toxics control program.
125.67 Increase in effluent volume or amount of pollutants
discharged.
125.68 Special conditions for section 301(h) modified permits.
Appendix to Subpart G--Applicant Questionnaire for Modification of
Secondary Treatment Requirements
Subpart G--Criteria for Modifying the Secondary Treatment
Requirements Under Section 301(h) of the Clean Water Act
Sec. 125.56 Scope and purpose.
This subpart establishes the criteria to be applied by EPA in
acting on section 301(h) requests for modifications to the secondary
treatment requirements. It also establishes special permit conditions
which must be included in any permit incorporating a section 301(h)
modification of the secondary treatment requirements (``section 301(h)
modified permit'').
Sec. 125.57 Law governing issuance of a section 301(h) modified
permit.
(a) Section 301(h) of the Clean Water Act provides that:
Administrator, with the concurrence of the State, may issue a
permit under section 402 which modifies the requirements of
paragraph (b)(1)(B) of this section with respect to the discharge of
any pollutant from a publicly owned treatment works into marine
waters, if the applicant demonstrates to the satisfaction of the
Administrator that--
(1) There is an applicable water quality standard specific to
the pollutant for which the modification is requested, which has
been identified under section 304(a)(6) of this Act;
(2) The discharge of pollutants in accordance with such modified
requirements will not interfere, alone or in combination with
pollutants from other sources, with the attainment or maintenance of
that water quality which assures protection of public water supplies
and protection and propagation of a balanced indigenous population
of shellfish, fish, and wildlife, and allows recreational
activities, in and on the water;
(3) The applicant has established a system for monitoring the
impact of such discharge on a representative sample of aquatic
biota, to the extent practicable, and the scope of such monitoring
is limited to include only those scientific investigations which are
necessary to study the effects of the proposed discharge;
(4) Such modified requirements will not result in any additional
requirements on any other point or nonpoint source;
(5) All applicable pretreatment requirements for sources
introducing waste into such treatment works will be enforced;
(6) In the case of any treatment works serving a population of
50,000 or more, with respect to any toxic pollutant introduced into
such works by an industrial discharger for which pollutant there is
no applicable pretreatment requirement in effect, sources
introducing waste into such works are in compliance with all
applicable pretreatment requirements, the applicant will enforce
such requirements, and the applicant has in effect a pretreatment
program which, in combination with the treatment of discharges from
such works, removes the same amount of such pollutant as would be
removed if such works were to apply secondary treatment to
discharges and if such works had no pretreatment program with
respect to such pollutant;
(7) To the extent practicable, the applicant has established a
schedule of activities designed to eliminate the entrance of toxic
pollutants from nonindustrial sources into such treatment works;
(8) There will be no new or substantially increased discharges
from the point source of the pollutant to which the modification
applies above that volume of discharge specified in the permit;
(9) The applicant at the time such modification becomes
effective will be discharging effluent which has received at least
primary or equivalent treatment and which meets the criteria
established under section 304(a)(1) of this Act after initial mixing
in the waters surrounding or adjacent to the point at which such
effluent is discharged.
For the purposes of this section, the phrase ``the discharge of
any pollutant into marine waters'' refers to a discharge into deep
waters of the territorial sea or the waters of the contiguous zone,
or into saline estuarine waters where there is strong tidal movement
and other hydrological and geological characteristics which the
Administrator determines necessary to allow compliance with
paragraph (2) of this section, and section 101(a)(2) of this Act.
For the purposes of paragraph (9), ``primary or equivalent
treatment'' means treatment by screening, sedimentation, and
skimming adequate to remove at least 30 percent of the biological
oxygen demanding material and of the suspended solids in the
treatment works influent, and disinfection, where appropriate. A
municipality which applies secondary treatment shall be eligible to
receive a permit pursuant to this subsection which modifies the
requirements of paragraph (b)(1)(B) of this section with respect to
the discharge of any pollutant from any treatment works owned by
such municipality into marine waters. No permit issued under this
subsection shall authorize the discharge of sewage sludge into
marine waters. In order for a permit to be issued under this
subsection for the discharge of a pollutant into marine waters, such
marine waters must exhibit characteristics assuring that water
providing dilution does not contain significant amounts of
previously discharged effluent from such treatment works. No permit
issued under this subsection shall authorize the discharge of any
pollutant into saline estuarine waters which at the time of
application do not support a balanced indigenous population of
shellfish, fish, and wildlife, or allow recreation in and on the
waters or which exhibit ambient water quality below applicable water
quality standards adopted for the protection of public water
supplies, shellfish, fish, and wildlife or recreational activities
or such other standards necessary to assure support and protection
of such uses. The prohibition contained in the preceding sentence
shall apply without regard to the presence or absence of a causal
relationship between such characteristics and the applicant's
current or proposed discharge. Notwithstanding any other provisions
of this subsection, no permit may be issued under this subsection
for discharge of a pollutant into the New York Bight Apex consisting
of the ocean waters of the Atlantic Ocean westward of 73 degrees 30
minutes west longitude and northward of 40 degrees 10 minutes north
latitude.
(b) Section 301(j)(1) of the Clean Water Act provides that:
Any application filed under this section for a modification of
the provisions of--
(A) subsection (b)(1)(B) under subsection (h) of this section
shall be filed not later than the 365th day which begins after the
date of enactment of the Municipal Wastewater Treatment Construction
Grant Amendments of 1981, except that a publicly owned treatment
works which prior to December 31, 1982, had a contractual
arrangement to use a portion of the capacity of an ocean outfall
operated by another publicly owned treatment works which has applied
for or received modification under subsection (h) may apply for a
modification of subsection (h) in its own right not later than 30
days after the date of the enactment of the Water Quality Act of
1987.
(c) Section 22(e) of the Municipal Wastewater Treatment
Construction Grant Amendments of 1981, Public Law 97-117, provides
that:
The amendments made by this section shall take effect on the
date of enactment of this Act except that no applicant, other than
the city of Avalon, California, who applies after the date of
enactment of this Act for a permit pursuant to subsection (h) of
section 301 of the Federal Water Pollution Control Act which
modifies the requirements of subsection (b)(1)(B) of section 301 of
such Act shall receive such permit during the one-year period which
begins on the date of enactment of this Act.
(d) Section 303(b)(2) of the Water Quality Act, Public Law 100-4,
provides that:
Section 301(h)(3) shall only apply to modifications and renewals
of modifications which are tentatively or finally approved after the
date of the enactment of this Act.
(e) Section 303(g) of the Water Quality Act provides that:
The amendments made to sections 301(h) and (h)(2), as well as
provisions of (h)(6) and (h)(9), shall not apply to an application
for a permit under section 301(h) of the Federal Water Pollution
Control Act which has been tentatively or finally approved by the
Administrator before the date of the enactment of this Act; except
that such amendments shall apply to all renewals of such permits
after such date of enactment.
Sec. 125.58 Definitions.
For the purpose of this subpart:
(a) Administrator means the EPA Administrator or a person
designated by the EPA Administrator.
(b) Altered discharge means any discharge other than a current
discharge or improved discharge, as defined in this regulation.
(c) Applicant means an applicant for a new or renewed section
301(h) modified permit. Large applicants have populations contributing
to their POTWs equal to or more than 50,000 people or average dry
weather flows of 5.0 million gallons per day (mgd) or more; small
applicants have contributing populations of less than 50,000 people and
average dry weather flows of less than 5.0 mgd. For the purposes of
this definition the contributing population and flows shall be based on
projections for the end of the five-year permit term. Average dry
weather flows shall be the average daily total discharge flows for the
maximum month of the dry weather season.
(d) Application means a final application previously submitted in
accordance with the June 15, 1979, section 301(h) regulations (44 FR
34784); an application submitted between December 29, 1981, and
December 29, 1982; or a section 301(h) renewal application submitted in
accordance with these regulations. It does not include a preliminary
application submitted in accordance with the June 15, 1979, section
301(h) regulations.
(e) Application questionnaire means EPA's ``Applicant Questionnaire
for Modification of Secondary Treatment Requirements,'' published as an
appendix to this subpart.
(f) Balanced indigenous population means an ecological community
which:
(1) Exhibits characteristics similar to those of nearby, healthy
communities existing under comparable but unpolluted environmental
conditions; or
(2) May reasonably be expected to become re-established in the
polluted water body segment from adjacent waters if sources of
pollution were removed.
(g) Categorical pretreatment standard means a standard promulgated
by EPA under 40 CFR Chapter I, Subchapter N.
(h) Current discharge means the volume, composition, and location
of an applicant's discharge at the time of permit application.
(i) Improved discharge means the volume, composition, and location
of an applicant's discharge following:
(1) Construction of planned outfall improvements, including,
without limitation, outfall relocation, outfall repair, or diffuser
modification; or
(2) Construction of planned treatment system improvements to
treatment levels or discharge characteristics; or
(3) Implementation of a planned program to improve operation and
maintenance of an existing treatment system or to eliminate or control
the introduction of pollutants into the applicant's treatment works.
(j) Industrial discharger or industrial source means any source of
nondomestic pollutants regulated under section 307(b) or (c) of the
Clean Water Act which discharges into a POTW.
(k) Modified discharge means the volume, composition, and location
of the discharge proposed by the applicant for which a modification
under section 301(h) of the Act is requested. A modified discharge may
be a current discharge, improved discharge, or altered discharge.
(l) New York Bight Apex means the ocean waters of the Atlantic
Ocean westward of 73 degrees 30 minutes west longitude and northward of
40 degrees 10 minutes north latitude.
(m) Nonindustrial source means any source of pollutants which is
not an industrial source.
(n) Ocean waters means those coastal waters landward of the
baseline of the territorial seas, the deep waters of the territorial
seas, or the waters of the contiguous zone. The term ``ocean waters''
excludes saline estuarine waters.
(o) Permittee means an NPDES permittee with an effective section
301(h) modified permit.
(p) Pesticides means demeton, guthion, malathion, mirex,
methoxychlor, and parathion.
(q) Pretreatment means the reduction of the amount of pollutants,
the elimination of pollutants, or the alteration of the nature of
pollutant properties in wastewater prior to or in lieu of discharging
or otherwise introducing such pollutants into a POTW. The reduction or
alteration may be obtained by physical, chemical, or biological
processes, process changes, or by other means, except as prohibited by
40 CFR part 403.
(r) Primary or equivalent treatment for the purposes of this
subpart means treatment by screening, sedimentation, and skimming
adequate to remove at least 30 percent of the biochemical oxygen
demanding material and of the suspended solids in the treatment works
influent, and disinfection, where appropriate.
(s) Public water supplies means water distributed from a public
water system.
(t) Public water system means a system for the provision to the
public of piped water for human consumption, if such system has at
least fifteen (15) service connections or regularly serves at least
twenty-five (25) individuals. This term includes: (1) Any collection,
treatment, storage, and distribution facilities under the control of
the operator of the system and used primarily in connection with the
system, and (2) Any collection or pretreatment storage facilities not
under the control of the operator of the system which are used
primarily in connection with the system.
(u) Publicly owned treatment works or POTW means a treatment works,
as defined in section 212(2) of the Act, which is owned by a State,
municipality, or intermunicipal or interstate agency.
(v) Saline estuarine waters means those semi-enclosed coastal
waters which have a free connection to the territorial sea, undergo net
seaward exchange with ocean waters, and have salinities comparable to
those of the ocean. Generally, these waters are near the mouth of
estuaries and have cross-sectional annual mean salinities greater than
twenty-five (25) parts per thousand.
(w) Secondary removal equivalency means that the amount of a toxic
pollutant removed by the combination of the applicant's own treatment
of its influent and pretreatment by its industrial users is equal to or
greater than the amount of the toxic pollutant that would be removed if
the applicant were to apply secondary treatment to its discharge where
the discharge has not undergone pretreatment by the applicant's
industrial users.
(x) Secondary treatment means the term as defined in 40 CFR part
133.
(y) Shellfish, fish, and wildlife means any biological population
or community that might be adversely affected by the applicant's
modified discharge.
(z) Stressed waters means those ocean waters for which an applicant
can demonstrate to the satisfaction of the Administrator, that the
absence of a balanced indigenous population is caused solely by human
perturbations other than the applicant's modified discharge.
(aa) Toxic pollutants means those substances listed in 40 CFR
401.15.
(bb) Water quality criteria means scientific data and guidance
developed and periodically updated by EPA under section 304(a)(1) of
the Clean Water Act, which are applicable to marine waters.
(cc) Water quality standards means applicable water quality
standards which have been approved, left in effect, or promulgated
under section 303 of the Clean Water Act.
(dd) Zone of initial dilution (ZID) means the region of initial
mixing surrounding or adjacent to the end of the outfall pipe or
diffuser ports, provided that the ZID may not be larger than allowed by
mixing zone restrictions in applicable water quality standards.
Sec. 125.59 General.
(a) Basis for application. An application under this subpart shall
be based on a current, improved, or altered discharge into ocean waters
or saline estuarine waters.
(b) Prohibitions. No section 301(h) modified permit shall be
issued:
(1) Where such issuance would not assure compliance with all
applicable requirements of this subpart and part 122;
(2) For the discharge of sewage sludge;
(3) Where such issuance would conflict with applicable provisions
of State, local, or other Federal laws or Executive Orders. This
includes compliance with the Coastal Zone Management Act of 1972, as
amended, 16 U.S.C. 1451 et seq.; the Endangered Species Act of 1973, as
amended, 16 U.S.C. 1531 et seq.; and Title III of the Marine
Protection, Research and Sanctuaries Act, as amended, 16 U.S.C. 1431 et
seq.;
(4) Where the discharge of any pollutant enters into saline
estuarine waters which at the time of application do not support a
balanced indigenous population of shellfish, fish, and wildlife, or
allow recreation in and on the waters or which exhibit ambient water
quality below applicable water quality standards adopted for the
protection of public water supplies, shellfish, fish, and wildlife or
recreational activities or such other standards necessary to assure
support and protection of such uses. The prohibition contained in the
preceding sentence shall apply without regard to the presence or
absence of a causal relationship between such characteristics and the
applicant's current or proposed discharge; or
(5) Where the discharge of any pollutant is into the New York Bight
Apex.
(c) Applications. Each applicant for a modified permit under this
subpart shall submit an application to EPA signed in compliance with 40
CFR part 122, subpart B, which shall contain:
(1) A signed, completed NPDES Application Standard form A, parts I,
II, III;
(2) A completed Application Questionnaire;
(3) The certification in accordance with 40 CFR 122.22(d);
(4) In addition to the requirements of Sec. 125.59(c) (1) through
(3), applicants for permit renewal shall support continuation of the
modification by supplying to EPA the results of studies and monitoring
performed in accordance with Sec. 125.63 during the life of the permit.
Upon a demonstration meeting the statutory criteria and requirements of
this subpart, the permit may be renewed under the applicable procedures
of 40 CFR part 124.
(d) Revisions to applications. (1) POTWs which submitted
applications in accordance with the June 15, 1979, regulations (44 FR
34784) may revise their applications one time following a tentative
decision to propose changes to treatment levels and/or outfall and
diffuser location and design in accordance with Sec. 125.59(f)(2)(i);
and
(2) Other applicants may revise their applications one time
following a tentative decision to propose changes to treatment levels
and/or outfall and diffuser location and design in accordance with
Sec. 125.59(f)(2)(i). Revisions by such applicants which propose
downgrading treatment levels and/or outfall and diffuser location and
design must be justified on the basis of substantial changes in
circumstances beyond the applicant's control since the time of
application submission.
(3) Applicants authorized or requested to submit additional
information under Sec. 125.59(g) may submit a revised application in
accordance with Sec. 125.59(f)(2)(ii) where such additional information
supports changes in proposed treatment levels and/or outfall location
and diffuser design. The opportunity for such revision shall be in
addition to the one-time revision allowed under Sec. 125.59(d) (1) and
(2).
(4) POTWs which revise their applications must:
(i) Modify their NPDES form and Application Questionnaire as needed
to ensure that the information filed with their application is correct
and complete;
(ii) Provide additional analysis and data as needed to demonstrate
compliance with this subpart;
(iii) Obtain new State determinations under Secs. 125.61(b)(2) and
125.64(b); and
(iv) Provide the certification described in paragraph (c)(3) of
this section.
(5) Applications for permit renewal may not be revised.
(e) Submittal of additional information to demonstrate compliance
with Secs. 125.60 and 125.65. (1) On or before the deadline established
in paragraph (f)(3) of this section, applicants shall submit a letter
of intent to demonstrate compliance with Secs. 125.60 and 125.65. The
letter of intent is subject to approval by the Administrator based on
the requirements of this paragraph and paragraph (f)(3) of this
section. The letter of intent shall consist of the following:
(i) For compliance with Sec. 125.60: (A) A description of the
proposed treatment system which upgrades treatment to satisfy the
requirements of Sec. 125.60.
(B) A project plan, including a schedule for data collection and
for achieving compliance with Sec. 125.60. The project plan shall
include dates for design and construction of necessary facilities,
submittal of influent/effluent data, and submittal of any other
information necessary to demonstrate compliance with Sec. 125.60. The
Administrator will review the project plan and may require revisions
prior to authorizing submission of the additional information.
(ii) For compliance with Sec. 125.65: (A) A determination of what
approach will be used to achieve compliance with Sec. 125.65.
(B) A project plan for achieving compliance. The project plan shall
include any necessary data collection activities, submittal of
additional information, and/or development of appropriate pretreatment
limits to demonstrate compliance with Sec. 125.65. The Administrator
will review the project plan and may require revisions prior to
submission of the additional information.
(iii) POTWs which submit additional information must:
(A) Modify their NPDES form and Application Questionnaire as needed
to ensure that the information filed with their application is correct
and complete;
(B) Obtain new State determinations under Secs. 125.61(b)(2) and
125.64(b); and
(C) Provide the certification described in paragraph (c)(3) of this
section.
(2) The information required under this paragraph must be submitted
in accordance with the schedules in Sec. 125.59(f)(3)(ii). If the
applicant does not meet these schedules for compliance, EPA may deny
the application on that basis.
(f) Deadlines and distribution--(1) Applications.--(i) The
application for an original 301(h) permit for POTWs which directly
discharges effluent into saline waters shall be submitted to the
appropriate EPA Regional Administrator no later than December 29, 1982.
(ii) The application for renewal of a 301(h) modified permit shall
be submitted no less than 180 days prior to the expiration of the
existing permit, unless permission for a later date has been granted by
the Administrator. (The Administrator shall not grant permission for
applications to be submitted later than the expiration date of the
existing permit.)
(iii) A copy of the application shall be provided to the State and
interstate agency(s) authorized to provide certification/concurrence
under Secs. 124.53 through 124.55 on or before the date the application
is submitted to EPA.
(2) Revisions to Applications. (i) Applicants desiring to revise
their applications under Sec. 125.59 (d)(1) or (d)(2) must:
(A) Submit to the appropriate Regional Administrator a letter of
intent to revise their application either within 45 days of the date of
EPA's tentative decision on their original application or within 45
days of November 26, 1982, whichever is later. Following receipt by EPA
of a letter of intent, further EPA proceedings on the tentative
decision under 40 CFR part 124 will be stayed.
(B) Submit the revised application as described for new
applications in Sec. 125.59(f)(1) either within one year of the date of
EPA's tentative decision on their original application or within one
year of November 26, 1982, if a tentative decision has already been
made, whichever is later.
(ii) Applicants desiring to revise their applications under
Sec. 125.59(d)(3) must submit the revised application as described for
new applications in Sec. 125.59(f)(1) concurrent with submission of the
additional information under Sec. 125.59(g).
(3) Deadline for additional information to demonstrate compliance
with Secs. 125.60 and 125.65.
(i) A letter of intent required under Sec. 125.59(e)(1) must be
submitted by the following dates: for permittees with 301(h)
modifications or for applicants to which a tentative or final decision
has been issued, November 7, 1994; for all others, within 90 days after
the Administrator issues a tentative decision on an application.
Following receipt by EPA of a letter of intent containing the
information required in Sec. 125.59(e)(1), further EPA proceedings on
the tentative decision under 40 CFR part 124 will be stayed.
(ii) The project plan submitted under Sec. 125.59(e)(1) shall
ensure that the applicant meets all the requirements of Secs. 125.60
and 125.65 by the following deadlines:
(A) By August 9, 1996 for applicants that are not grandfathered
under Sec. 125.59(j).
(B) At the time of permit renewal or by August 9, 1996, whichever
is later, for applicants that are grandfathered under Sec. 125.59(j).
(4) State determination deadline. State determinations, as required
by Secs. 125.61(b)(2) and 125.64(b) shall be filed by the applicant
with the appropriate Regional Administrator no later than 90 days after
submission of the revision to the application or additional information
to EPA. Extensions to this deadline may be provided by EPA upon
request. However, EPA will not begin review of the revision to the
application or additional information until a favorable State
determination is received by EPA. Failure to provide the State
determination within the timeframe required by this paragraph (f)(4) is
a basis for denial of the application.
(g)(1) The Administrator may authorize or request an applicant to
submit additional information by a specified date not to exceed one
year from the date of authorization or request.
(2) Applicants seeking authorization to submit additional
information on current/modified discharge characteristics, water
quality, biological conditions or oceanographic characteristics must:
(i) Demonstrate that they made a diligent effort to provide such
information with their application and were unable to do so, and
(ii) Submit a plan of study, including a schedule, for data
collection and submittal of the additional information. EPA will review
the plan of study and may require revisions prior to authorizing
submission of the additional information.
(h) Tentative decisions on section 301(h) modifications. The
Administrator shall grant a tentative approval or a tentative denial of
a section 301(h) modified permit application. To qualify for a
tentative approval, the applicant shall demonstrate to the satisfaction
of the Administrator that it is using good faith means to come into
compliance with all the requirements of this subpart and that it will
meet all such requirements based on a schedule approved by the
Administrator. For compliance with Secs. 125.60 and 125.65, such
schedule shall be in accordance with Sec. 125.59(f)(3)(ii).
(i) Decisions on section 301(h) modifications. (1) The decision to
grant or deny a section 301(h) modification shall be made by the
Administrator and shall be based on the applicant's demonstration that
it has met all the requirements of Secs. 125.59 through 125.68.
(2) No section 301(h) modified permit shall be issued until the
appropriate State certification/concurrence is granted or waived
pursuant to Sec. 124.54 or if the State denies certification/
concurrence pursuant to Sec. 124.54.
(3) In the case of a modification issued to an applicant in a State
administering an approved permit program under 40 CFR part 123, the
State Director may:
(i) Revoke an existing permit as of the effective date of the EPA
issued section 301(h) modified permit; and
(ii) Cosign the section 301(h) modified permit if the Director has
indicated an intent to do so in the written concurrence.
(4) Any section 301(h) modified permit shall:
(i) Be issued in accordance with the procedures set forth in 40 CFR
part 124, except that, because section 301(h) permits may be issued
only by EPA, the terms ``Administrator or a person designated by the
Administrator'' shall be substituted for the term ``Director'' as
appropriate; and
(ii) Contain all applicable terms and conditions set forth in 40
CFR part 122 and Sec. 125.68.
(5) Appeals of section 301(h) determinations shall be governed by
the procedures in 40 CFR part 124.
(j) Grandfathering provision. Applicants that received tentative or
final approval for a section 301(h) modified permit prior to February
4, 1987, are not subject to Sec. 125.60, the water quality criteria
provisions of Sec. 125.62(a)(1), or Sec. 125.65 until the time of
permit renewal. In addition, if permit renewal will occur prior to
August 9, 1996, applicants may have additional time to come into
compliance with Secs. 125.60 and 125.65, as determined appropriate by
EPA on a case-by-case basis. Such additional time, however, shall not
extend beyond August 9, 1996. This paragraph does not apply to any
application that was initially tentatively approved, but as to which
EPA withdrew its tentative approval or issued a tentative denial prior
to February 4, 1987.
Sec. 125.60 Primary or equivalent treatment requirements.
(a) The applicant shall demonstrate that, at the time its
modification becomes effective, it will be discharging effluent that
has received at least primary or equivalent treatment.
(b) The applicant shall perform monitoring to ensure, based on the
monthly average results of the monitoring, that the effluent it
discharges has received primary or equivalent treatment.
(c)(1) An applicant may request that the demonstration of
compliance with the requirement under Sec. 125.60(b) 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
paragraph (c)(2) of this section. If, however, the applicant has
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 applicant shall not be eligible for an averaging basis longer than
monthly.
(2) If the Administrator is satisfied that the applicant has met
the eligibility requirement of paragraph (c)(1) of this section, the
Administrator may approve such requests if the applicant demonstrates
to the Administrator's satisfaction that:
(i) The applicant's POTW is adequately designed and well operated;
(ii) The applicant will be able to meet all requirements under
section 301(h) of the CWA and these subpart G regulations with the
averaging basis selected; and
(iii) The applicant cannot achieve 30 percent removal on a monthly
average basis because of circumstances beyond the applicant's control.
Circumstances beyond the applicant's control may include seasonally
dilute influent BOD concentrations due to relatively high (although
nonexcessive) inflow and infiltration; relatively high soluble to
insoluble BOD ratios on a fluctuating basis; or cold climates resulting
in cold influent. Circumstances beyond the applicant's control shall
not include less concentrated wastewater due to excessive inflow and
infiltration (I&I). The determination of whether the less concentrated
wastewater is the result of excessive I&I will be based on the
definition of excessive I&I in 40 CFR 35.2005(b)(16) plus the
additional criterion that inflow is nonexcessive if the total flow to
the POTW (i.e., wastewater plus inflow plus infiltration) is less than
275 gallons per capita per day.
(3) In no event shall averaging on a less frequent basis than
annually be allowed.
Sec. 125.61 Existence of and compliance with applicable water quality
standards.
(a) There must exist a water quality standard or standards
applicable to the pollutant(s) for which a section 301(h) modified
permit is requested, including:
(1) Water quality standards for biochemical oxygen demand or
dissolved oxygen;
(2) Water quality standards for suspended solids, turbidity, light
transmission, light scattering, or maintenance of the euphotic zone;
and
(3) Water quality standards for pH.
(b) The applicant must: (1) Demonstrate that the modified discharge
will comply with the above water quality standard(s); and
(2) Provide a determination signed by the State or interstate
agency(s) authorized to provide certification under Secs. 124.53 and
124.54 that the proposed modified discharge will comply with applicable
provisions of State law including water quality standards. This
determination shall include a discussion of the basis for the
conclusion reached.
Sec. 125.62 Attainment or maintenance of water quality which assures
protection of public water supplies; assures the protection and
propagation of a balanced indigenous population of shellfish, fish, and
wildlife; and allows recreational activities.
(a) Physical characteristics of discharge. (1) At the time the
301(h) modification becomes effective, the applicant's outfall and
diffuser must be located and designed to provide adequate initial
dilution, dispersion, and transport of wastewater such that the
discharge does not exceed at and beyond the zone of initial dilution:
(i) All applicable water quality standards; and
(ii) All applicable EPA water quality criteria for pollutants for
which there is no applicable EPA-approved water quality standard that
directly corresponds to the EPA water quality criterion for the
pollutant.
(iii) For purposes of paragraph (a)(1)(ii) of this section, a State
water quality standard ``directly corresponds'' to an EPA water quality
criterion only if:
(A) The State water quality standard addresses the same pollutant
as the EPA water quality criterion and
(B) The State water quality standard specifies a numeric criterion
for that pollutant or State objective methodology for deriving such a
numeric criterion.
(iv) The evaluation of compliance with paragraphs (a)(1) (i) and
(ii) of this section shall be based upon conditions reflecting periods
of maximum stratification and during other periods when discharge
characteristics, water quality, biological seasons, or oceanographic
conditions indicate more critical situations may exist.
(2) The evaluation under paragraph (a)(1)(ii) of this section as to
compliance with applicable section 304(a)(1) water quality criteria
shall be based on the following:
(i) For aquatic life criteria: The pollutant concentrations that
must not be exceeded are the numeric ambient values, if any, specified
in the EPA section 304(a)(1) water quality criteria documents as the
concentrations at which acute and chronic toxicity to aquatic life
occurs or that are otherwise identified as the criteria to protect
aquatic life.
(ii) For human health criteria for carcinogens: (A) For a known or
suspected carcinogen, the Administrator shall determine the pollutant
concentration that shall not be exceeded. To make this determination,
the Administrator shall first determine a level of risk associated with
the pollutant that is acceptable for purposes of this section. The
Administrator shall then use the information in the section 304(a)(1)
water quality criterion document, supplemented by all other relevant
information, to determine the specific pollutant concentration that
corresponds to the identified risk level.
(B) For purposes of paragraph (a)(2)(ii)(A) of this section, an
acceptable risk level will be a single level that has been consistently
used, as determined by the Administrator, as the basis of the State's
EPA-approved water quality standards for carcinogenic pollutants.
Alternatively, the Administrator may consider a State's recommendation
to use a risk level that has been otherwise adopted or formally
proposed by the State. The State recommendation must demonstrate, to
the satisfaction of the Administrator, that the recommended level is
sufficiently protective of human health in light of the exposure and
uncertainty factors associated with the estimate of the actual risk
posed by the applicant's discharge. The State must include with its
demonstration a showing that the risk level selected is based on the
best information available and that the State has held a public hearing
to review the selection of the risk level, in accordance with
provisions of State law and public participation requirements of 40 CFR
part 25. If the Administrator neither determines that there is a
consistently used single risk level nor accepts a risk level
recommended by the State, then the Administrator shall otherwise
determine an acceptable risk level based on all relevant information.
(iii) For human health criteria for noncarcinogens: For
noncarcinogenic pollutants, the pollutant concentrations that must not
be exceeded are the numeric ambient values, if any, specified in the
EPA section 304(a)(1) water quality criteria documents as protective
against the potential toxicity of the contaminant through ingestion of
contaminated aquatic organisms.
(3) The requirements of paragraphs (a)(1) and (a)(2) of this
section apply in addition to, and do not waive or substitute for, the
requirements of Sec. 125.61.
(b) Impact of discharge on public water supplies. (1) The
applicant's modified discharge must allow for the attainment or
maintenance of water quality which assures protection of public water
supplies.
(2) The applicant's modified discharge must not:
(i) Prevent a planned or existing public water supply from being
used, or from continuing to be used, as a public water supply; or
(ii) Have the effect of requiring treatment over and above that
which would be necessary in the absence of such discharge in order to
comply with local and EPA drinking water standards.
(c) Biological impact of discharge. (1) The applicant's modified
discharge must allow for the attainment or maintenance of water quality
which assures protection and propagation of a balanced indigenous
population of shellfish, fish, and wildlife.
(2) A balanced indigenous population of shellfish, fish, and
wildlife must exist:
(i) Immediately beyond the zone of initial dilution of the
applicant's modified discharge; and
(ii) In all other areas beyond the zone of initial dilution where
marine life is actually or potentially affected by the applicant's
modified discharge.
(3) Conditions within the zone of initial dilution must not
contribute to extreme adverse biological impacts, including, but not
limited to, the destruction of distinctive habitats of limited
distribution, the presence of disease epicenter, or the stimulation of
phytoplankton blooms which have adverse effects beyond the zone of
initial dilution.
(4) In addition, for modified discharges into saline estuarine
water:
(i) Benthic populations within the zone of initial dilution must
not differ substantially from the balanced indigenous populations which
exist immediately beyond the boundary of the zone of initial dilution;
(ii) The discharge must not interfere with estuarine migratory
pathways within the zone of initial dilution; and
(iii) The discharge must not result in the accumulation of toxic
pollutants or pesticides at levels which exert adverse effects on the
biota within the zone of initial dilution.
(d) Impact of discharge on recreational activities. (1) The
applicant's modified discharge must allow for the attainment or
maintenance of water quality which allows for recreational activities
beyond the zone of initial dilution, including, without limitation,
swimming, diving, boating, fishing, and picnicking, and sports
activities along shorelines and beaches.
(2) There must be no Federal, State, or local restrictions on
recreational activities within the vicinity of the applicant's modified
outfall unless such restrictions are routinely imposed around sewage
outfalls. This exception shall not apply where the restriction would be
lifted or modified, in whole or in part, if the applicant were
discharging a secondary treatment effluent.
(e) Additional requirements for applications based on improved or
altered discharges. An application for a section 301(h) modified permit
on the basis of an improved or altered discharge must include:
(1) A demonstration that such improvements or alterations have been
thoroughly planned and studied and can be completed or implemented
expeditiously;
(2) Detailed analyses projecting changes in average and maximum
monthly flow rates and composition of the applicant's discharge which
are expected to result from proposed improvements or alterations;
(3) The assessments required by paragraphs (a) through (d) of this
section based on its current discharge; and
(4) A detailed analysis of how the applicant's planned improvements
or alterations will comply with the requirements of paragraphs (a)
through (d) of this section.
(f) Stressed waters. An applicant must demonstrate compliance with
paragraphs (a) through (e) of this section not only on the basis of the
applicant's own modified discharge, but also taking into account the
applicant's modified discharge in combination with pollutants from
other sources. However, if an applicant which discharges into ocean
waters believes that its failure to meet the requirements of paragraphs
(a) through (e) of this section is entirely attributable to conditions
resulting from human perturbations other than its modified discharge
(including, without limitation, other municipal or industrial
discharges, nonpoint source runoff, and the applicant's previous
discharges), the applicant need not demonstrate compliance with those
requirements if it demonstrates, to the satisfaction of the
Administrator, that its modified discharge does not or will not:
(1) Contribute to, increase, or perpetuate such stressed
conditions;
(2) Contribute to further degradation of the biota or water quality
if the level of human perturbation from other sources increases; and
(3) Retard the recovery of the biota or water quality if the level
of human perturbation from other sources decreases.
Sec. 125.63 Establishment of a monitoring program.
(a) General requirements. (1) The applicant must:
(i) Have a monitoring program that is:
(A) Designed to provide data to evaluate the impact of the modified
discharge on the marine biota, demonstrate compliance with applicable
water quality standards or water quality criteria, as applicable, and
measure toxic substances in the discharge, and
(B) Limited to include only those scientific investigations
necessary to study the effects of the proposed discharge;
(ii) Describe the sampling techniques, schedules and locations
(including appropriate control sites), analytical techniques, quality
control and verification procedures to be used in the monitoring
program;
(iii) Demonstrate that it has the resources necessary to implement
the program upon issuance of the modified permit and to carry it out
for the life of the modified permit; and
(iv) Determine the frequency and extent of the monitoring program
taking into consideration the applicant's rate of discharge, quantities
of toxic pollutants discharged, and potentially significant impacts on
receiving water quality, marine biota, and designated water uses.
(2) The Administrator may require revision of the proposed
monitoring program before issuing a modified permit and during the term
of any modified permit.
(b) Biological monitoring program. The biological monitoring
program for both small and large applicants shall provide data adequate
to evaluate the impact of the modified discharge on the marine biota.
(1) Biological monitoring shall include to the extent practicable:
(i) Periodic surveys of the biological communities and populations
which are most likely affected by the discharge to enable comparisons
with baseline conditions described in the application and verified by
sampling at the control stations/reference sites during the periodic
surveys;
(ii) Periodic determinations of the accumulation of toxic
pollutants and pesticides in organisms and examination of adverse
effects, such as disease, growth abnormalities, physiological stress,
or death;
(iii) Sampling of sediments in areas of solids deposition in the
vicinity of the ZID, in other areas of expected impact, and at
appropriate reference sites to support the water quality and biological
surveys and to measure the accumulation of toxic pollutants and
pesticides; and
(iv) Where the discharge would affect commercial or recreational
fisheries, periodic assessments of the conditions and productivity of
fisheries.
(2) Small applicants are not subject to the requirements of
paragraph (b)(1) (ii) through (iv) of this section if they discharge at
depths greater than 10 meters and can demonstrate through a suspended
solids deposition analysis that there will be negligible seabed
accumulation in the vicinity of the modified discharge.
(3) For applicants seeking a section 301(h) modified permit based
on:
(i) A current discharge, biological monitoring shall be designed to
demonstrate ongoing compliance with the requirements of Sec. 125.62(c);
(ii) An improved discharge or altered discharge other than outfall
relocation, biological monitoring shall provide baseline data on the
current impact of the discharge and data which demonstrate, upon
completion of improvements or alterations, that the requirements of
Sec. 125.62(c) are met; or
(iii) An improved or altered discharge involving outfall
relocation, the biological monitoring shall:
(A) Include the current discharge site until such discharge ceases;
and
(B) Provide baseline data at the relocation site to demonstrate the
impact of the discharge and to provide the basis for demonstrating that
requirements of Sec. 125.62(c) will be met.
(c) Water quality monitoring program. The water quality monitoring
program shall to the extent practicable:
(1) Provide adequate data for evaluating compliance with water
quality standards or water quality criteria, as applicable under
Sec. 125.62(a)(1);
(2) Measure the presence of toxic pollutants which have been
identified or reasonably may be expected to be present in the
discharge.
(d) Effluent monitoring program. (1) In addition to the
requirements of 40 CFR part 122, to the extent practicable, monitoring
of the POTW effluent shall provide quantitative and qualitative data
which measure toxic substances and pesticides in the effluent and the
effectiveness of the toxic control program.
(2) The permit shall require the collection of data on a frequency
specified in the permit to provide adequate data for evaluating
compliance with the percent removal efficiency requirements under
Sec. 125.60.
Sec. 125.64 Effect of the discharge on other point and nonpoint
sources.
(a) No modified discharge may result in any additional pollution
control requirements on any other point or nonpoint source.
(b) The applicant shall obtain a determination from the State or
interstate agency(s) having authority to establish wasteload
allocations indicating whether the applicant's discharge will result in
an additional treatment pollution control, or other requirement on any
other point or nonpoint sources. The State determination shall include
a discussion of the basis for its conclusion.
Sec. 125.65 Urban area pretreatment program.
(a) Scope and applicability. (1) The requirements of this section
apply to each POTW serving a population of 50,000 or more that has one
or more toxic pollutants introduced into the POTW by one or more
industrial dischargers and that seeks a section 301(h) modification.
(2) The requirements of this section apply in addition to any
applicable requirements of 40 CFR part 403, and do not waive or
substitute for the part 403 requirements in any way.
(b) Toxic pollutant control. (1) As to each toxic pollutant
introduced by an industrial discharger, each POTW subject to the
requirements of this section shall demonstrate that it either:
(i) Has an applicable pretreatment requirement in effect in
accordance with paragraph (c) of this section; or
(ii) Has in effect a program that achieves secondary removal
equivalency in accordance with paragraph (d) of this section.
(2) Each applicant shall demonstrate that industrial sources
introducing waste into the applicant's treatment works are in
compliance with all applicable pretreatment requirements, including
numerical standards set by local limits, and that it will enforce those
requirements.
(c) Applicable pretreatment requirement. (1) An applicable
pretreatment requirement under paragraph (b)(1)(i) of this section with
respect to a toxic pollutant shall consist of the following:
(i) As to a toxic pollutant introduced into the applicant's
treatment works by an industrial discharger for which there is no
applicable categorical pretreatment standard for the toxic pollutant, a
local limit or limits on the toxic pollutant as necessary to satisfy
the requirements of 40 CFR part 403; and
(ii) As to a toxic pollutant introduced into the applicant's
treatment works by an industrial discharger that is subject to a
categorical pretreatment standard for the toxic pollutant, the
categorical standard and a local limit or limits as necessary to
satisfy the requirements of 40 CFR part 403;
(iii) As to a toxic pollutant introduced into the applicant's
treatment works by an industrial discharger for which there is no
applicable categorical pretreatment standard for the toxic pollutant,
and the 40 CFR part 403 analysis on the toxic pollutant shows that no
local limit is necessary, the applicant shall demonstrate to EPA on an
annual basis during the term of the permit through continued monitoring
and appropriate technical review that a local limit is not necessary,
and, where appropriate, require industrial management practices plans
and other pollution prevention activities to reduce or control the
discharge of each such pollutant by industrial dischargers to the POTW.
If such monitoring and technical review of data indicate that a local
limit is needed, the POTW shall establish and implement a local limit.
(2) Any local limits developed to meet the requirements of
paragraphs (b)(1)(i) and (c)(1) of this section shall be:
(i) Consistent with all applicable requirements of 40 CFR part 403
and
(ii) Subject to approval by the Administrator as part of the 301(h)
application review. The Administrator may require such local limits to
be revised as necessary to meet the requirements of this section or 40
CFR part 403.
(d) Secondary removal equivalency. An applicant shall demonstrate
that it achieves secondary removal equivalency through the use of a
secondary treatment pilot (demonstration) plant at the applicant's
facility which provides an empirical determination of the amount of a
toxic pollutant removed by the application of secondary treatment to
the applicant's influent where the applicant's influent has not been
pretreated. Alternatively, an applicant may make this determination
using influent that has received industrial pretreatment,
notwithstanding the definition of secondary removal equivalency in
Sec. 125.58(w). The NPDES permit shall include effluent limits based on
the data from the secondary equivalency demonstration when those limits
are more stringent than effluent limits based on State water quality
standards or water quality criteria, if applicable, or are otherwise
required to assure that all applicable environmental protection
criteria are met. Once such effluent limits are established in the
NPDES permit, the POTW may either establish local limits or perform
additional treatment at the POTW or a combination of the two to achieve
the permit limit.
Sec. 125.66 Toxics control program.
(a) Chemical analysis. (1) The applicant shall submit at the time
of application a chemical analysis of its current discharge for all
toxic pollutants and pesticides as defined in Sec. 125.58(aa) and (p).
The analysis shall be performed on two 24-hour composite samples (one
dry weather and one wet weather). Applicants may supplement or
substitute chemical analyses if composition of the supplemental or
substitute samples typifies that which occurs during dry and wet
weather conditions.
(2) Unless required by the State, this requirement shall not apply
to any small section 301(h) applicant which certifies that there are no
known or suspected sources of toxic pollutants or pesticides and
documents the certification with an industrial user survey as described
by 40 CFR 403.8(f)(2).
(b) Identification of sources. The applicant shall submit at the
time of application an analysis of the known or suspected sources of
toxic pollutants or pesticides identified in Sec. 125.66(a). The
applicant shall to the extent practicable categorize the sources
according to industrial and nonindustrial types.
(c) Industrial pretreatment requirements. (1) An applicant that has
known or suspected industrial sources of toxic pollutants shall have an
approved pretreatment program in accordance with 40 CFR part 403.
(2) This requirement shall not apply to any applicant which has no
known or suspected industrial sources of toxic pollutants or pesticides
and so certifies to the Administrator.
(3) The pretreatment program submitted by the applicant under this
section shall be subject to revision as required by the Administrator
prior to issuing or renewing any section 301(h) modified permit and
during the term of any such permit.
(4) Implementation of all existing pretreatment requirements and
authorities must be maintained through the period of development of any
additional pretreatment requirements that may be necessary to comply
with the requirements of this subpart.
(d) Nonindustrial source control program. (1) The applicant shall
submit a proposed public education program designed to minimize the
entrance of nonindustrial toxic pollutants and pesticides into its
POTW(s) which shall be implemented no later than 18 months after
issuance of a 301(h) modified permit.
(2) The applicant shall also develop and implement additional
nonindustrial source control programs on the earliest possible
schedule. This requirement shall not apply to a small applicant which
certifies that there are no known or suspected water quality, sediment
accumulation, or biological problems related to toxic pollutants or
pesticides in its discharge.
(3) The applicant's nonindustrial source control programs under
paragraph (d)(2) of this section shall include the following schedules
which are to be implemented no later than 18 months after issuance of a
section 301(h) modified permit:
(i) A schedule of activities for identifying nonindustrial sources
of toxic pollutants and pesticides; and
(ii) A schedule for the development and implementation of control
programs, to the extent practicable, for nonindustrial sources of toxic
pollutants and pesticides.
(4) Each proposed nonindustrial source control program and/or
schedule submitted by the applicant under this section shall be subject
to revision as determined by the Administrator prior to issuing or
renewing any section 301(h) modified permit and during the term of any
such permit.
Sec. 125.67 Increase in effluent volume or amount of pollutants
discharged.
(a) No modified discharge may result in any new or substantially
increased discharges of the pollutant to which the modification applies
above the discharge specified in the section 301(h) modified permit.
(b) Where pollutant discharges are attributable in part to combined
sewer overflows, the applicant shall minimize existing overflows and
prevent increases in the amount of pollutants discharged.
(c) The applicant shall provide projections of effluent volume and
mass loadings for any pollutants to which the modification applies in
5-year increments for the design life of its facility.
Sec. 125.68 Special conditions for section 301(h) modified permits.
Each section 301(h) modified permit issued shall contain, in
addition to all applicable terms and conditions required by 40 CFR part
122, the following:
(a) Effluent limitations and mass loadings which will assure
compliance with the requirements of this subpart;
(b) A schedule or schedules of compliance for:
(1) Pretreatment program development required by Sec. 125.66(c);
(2) Nonindustrial toxics control program required by
Sec. 125.66(d); and
(3) Control of combined sewer overflows required by Sec. 125.67.
(c) Monitoring program requirements that include:
(1) Biomonitoring requirements of Sec. 125.63(b);
(2) Water quality requirements of Sec. 125.63(c);
(3) Effluent monitoring requirements of Secs. 125.60(b), 125.62(c)
and (d), and 125.63(d).
(d) Reporting requirements that include the results of the
monitoring programs required by paragraph (c) of this section at such
frequency as prescribed in the approved monitoring program.
Appendix to Subpart G--Applicant Questionnaire for Modification of
Secondary Treatment Requirements
OMB Control Number 2040-0088 Expires on 2/28/96 Public reporting
burden for this collection of information is estimated to average
1,295 - 19,552 hours per response, for small and large applicants,
respectively. The reporting burden includes time for reviewing
instructions, gathering data, including monitoring and toxics
control activities, and completing and reviewing the questionnaire.
Send comments regarding the burden estimate or any other aspect of
this collection, including suggestions for reducing the burden, to
Chief, Information Policy Branch, U.S. Environmental Protection
Agency, 401 M St., SW (2136), Washington, DC 20460 and Office of
Management and Budget, Office of Information and Regulatory Affairs,
Attn: Desk Officer for EPA, Washington, DC 20503.
I. Introduction
1. This questionnaire is to be submitted by both small and large
applicants for modification of secondary treatment requirements
under section 301(h) of the Clean Water Act (CWA). A small applicant
is defined as a POTW that has a contributing population to its
wastewater treatment facility of less than 50,000 and a projected
average dry weather flow of less than 5.0 million gallons per day
(mgd, 0.22 cubic meters/sec) [40 CFR 125.58(c)]. A large applicant
is defined as a POTW that has a population contributing to its
wastewater treatment facility of at least 50,000 or a projected
average dry weather flow of its discharge of at least 5.0 million
gallons per day (mgd, 0.22 cubic meters/sec) [40 CFR 125.58(c)]. The
questionnaire is in two sections, a general information and basic
requirements section (part II) and a technical evaluation section
(part III). Satisfactory completion by small and large dischargers
of the appropriate questions of this questionnaire is necessary to
enable EPA to determine whether the applicant's modified discharge
meets the criteria of section 301(h) and EPA regulations (40 CFR
part 125, subpart G).
2. Most small applicants should be able to complete the
questionnaire using available information. However, small POTWs with
low initial dilution discharging into shallow waters or waters with
poor dispersion and transport characteristics, discharging near
distinctive and susceptible biological habitats, or discharging
substantial quantities of toxics should anticipate the need to
collect additional information and/or conduct additional analyses to
demonstrate compliance with section 301(h) criteria. If there are
questions in this regard, applicants should contact the appropriate
EPA Regional Office for guidance.
3. Guidance for responding to this questionnaire is provided by
the newly amended section 301(h) technical support document. Where
available information is incomplete and the applicant needs to
collect additional data during the period it is preparing the
application or a letter of intent, EPA encourages the applicant to
consult with EPA prior to data collection and submission. Such
consultation, particularly if the applicant provides a project plan,
will help ensure that the proper data are gathered in the most
efficient matter.
4. The notation (L) means large applicants must respond to the
question, and (S) means small applicants must respond.
II. General Information and Basic Data Requirements
A. Treatment System Description
1. (L,S) On which of the following are you basing your
application: a current discharge, improved discharge, or altered
discharge, as defined in 40 CFR 125.58? [40 CFR 125.59(a)]
2. (L,S) Description of the Treatment/Outfall System [40 CFR
125.62(a) and 125.62(e)]
a. Provide detailed descriptions and diagrams of the treatment
system and outfall configuration which you propose to satisfy the
requirements of section 301(h) and 40 CFR part 125, subpart G. What
is the total discharge design flow upon which this application is
based?
b. Provide a map showing the geographic location of proposed
outfall(s) (i.e., discharge). What is the latitude and longitude of
the proposed outfall(s)?
c. For a modification based on an improved or altered discharge,
provide a description and diagram of your current treatment system
and outfall configuration. Include the current outfall's latitude
and longitude, if different from the proposed outfall.
3. (L,S) Primary or equivalent treatment requirements [40 CFR
125.60]
a. Provide data to demonstrate that your effluent meets at least
primary or equivalent treatment requirements as defined in 40 CFR
125.58(r) [40 CFR 125.60]
b. If your effluent does not meet the primary or equivalent
treatment requirements, when do you plan to meet them? Provide a
detailed schedule, including design, construction, start-up and full
operation, with your application. This requirement must be met by
the effective date of the new section 301(h) modified permit.
4. (L,S) Effluent Limitations and Characteristics [40 CFR
125.61(b) and 125.62(e)(2)]
a. Identify the final effluent limitations for five-day
biochemical oxygen demand (BOD5), suspended solids, and pH upon
which your application for a modification is based:
--BOD5 ______ mg/L
--Suspended solids ______ mg/L
--pH ______ (range)
b. Provide data on the following effluent characteristics for
your current discharge as well as for the modified discharge if
different from the current discharge:
Flow (m3/sec):
--minimum
--average dry weather
--average wet weather
--maximum
--annual average
BOD5 (mg/L) for the following plant flows:
--minimum
--average dry weather
--average wet weather
--maximum
--annual average
Suspended solids (mg/L) for the following plant flows:
--minimum
--average dry weather
--average wet weather
--maximum
--annual average
Toxic pollutants and pesticides (ug/L):
--list each toxic pollutant and pesticide
--list each 304(a)(1) criteria and toxic pollutant and pesticide
pH:
--minimum
--maximum
Dissolved oxygen (mg/L, prior to chlorination) for the following
plant flows:
--minimum
--average dry weather
--average wet weather
--maximum
--annual average
Immediate dissolved oxygen demand (mg/L).
5. (L,S) Effluent Volume and Mass Emissions [40 CFR 125.62(e)(2)
and 125.67]
a. Provide detailed analyses showing projections of effluent
volume (annual average, m3/sec) and mass loadings (mt/yr) of
BOD5 and suspended solids for the design life of your treatment
facility in five-year increments. If the application is based upon
an improved or altered discharge, the projections must be provided
with and without the proposed improvements or alterations.
b. Provide projections for the end of your five-year permit term
for 1) the treatment facility contributing population and 2) the
average daily total discharge flow for the maximum month of the dry
weather season.
6. (L,S) Average Daily Industrial Flow (m3/sec). Provide or
estimate the average daily industrial inflow to your treatment
facility for the same time increments as in question II.A.5 above.
[40 CFR 125.66]
7. (L,S) Combined Sewer Overflows [40 CFR 125.67(b)]
a. Does (will) your treatment and collection system include
combined sewer overflows?
b. If yes, provide a description of your plan for minimizing
combined sewer overflows to the receiving water.
8. (L,S) Outfall/Diffuser Design. Provide the following data for
your current discharge as well as for the modified discharge, if
different from the current discharge: [40 CFR 125.62(a)(1)]
--Diameter and length of the outfall(s) (meters)
--Diameter and length of the diffuser(s) (meters)
--Angle(s) of port orientation(s) from horizontal (degrees)
--Port diameter(s) (meters)
--Orifice contraction coefficient(s), if known
--Vertical distance from mean lower low water (or mean low water)
surface and outfall port(s) centerline (meters)
--Number of ports
--Port spacing (meters)
--Design flow rate for each port, if multiple ports are used
(m3/sec)
B. Receiving Water Description
1. (L,S) Are you applying for a modification based on a
discharge to the ocean [40 CFR 125.58(n)] or to a saline estuary [40
CFR 125.58(v)]? [40 CFR 125.59(a)].
2. (L,S) Is your current discharge or modified discharge to
stressed waters as defined in 40 CFR 125.58(z)? If yes, what are the
pollution sources contributing to the stress? [40 CFR 125.59(b)(4)
and 125.62(f)].
3. (L,S) Provide a description and data on the seasonal
circulation patterns in the vicinity of your current and modified
discharge(s). [40 CFR 125.62(a)].
4. (L) Oceanographic conditions in the vicinity of the current
and proposed modified discharge(s). Provide data on the following:
[40 CFR 125.62(a)].
--Lowest ten percentile current speed (m/sec)
--Predominant current speed (m/sec) and direction (true) during the
four seasons
--Period(s) of maximum stratification (months)
--Period(s) of natural upwelling events (duration and frequency,
months)
--Density profiles during period(s) of maximum stratification
5. (L,S) Do the receiving waters for your discharge contain
significant amounts of effluent previously discharged from the
treatment works for which you are applying for a section 301(h)
modified permit? [40 CFR 125.57(a)(9)]
6. Ambient water quality conditions during the period(s) of
maximum stratification: at the zone of initial dilution (ZID)
boundary, at other areas of potential impact, and at control
stations. [40 CFR 125.62(a)]
a. (L) Provide profiles (with depth) on the following for the
current discharge location and for the modified discharge location,
if different from the current discharge:
--BOD5 (mg/L)
--Dissolved oxygen (mg/L)
--Suspended solids (mg/L)
--pH
--Temperature ( deg.C)
--Salinity (ppt)
--Transparency (turbidity, percent light transmittance)
--Other significant variables (e.g., nutrients, 304(a)(1) criteria
and toxic pollutants and pesticides, fecal coliform bacteria)
b. (S) Provide available data on the following in the vicinity
of the current discharge location and for the modified discharge
location, if different from the current discharge: [40 CFR
125.61(b)(1)]
--Dissolved oxygen (mg/L)
--Suspended solids (mg/L)
--pH
--Temperature ( deg.C)
--Salinity (ppt)
--Transparency (turbidity, percent light transmittance)
--Other significant variables (e.g., nutrients, 304(a)(1) criteria
and toxic pollutants and pesticides, fecal coliform bacteria)
c. (L,S)Are there other periods when receiving water quality
conditions may be more critical than the period(s) of maximum
stratification? If so, describe these and other critical periods and
data requested in 6.a. for the other critical period(s). [40 CFR
125.62(a)(1)].
7. (L) Provide data on steady state sediment dissolved oxygen
demand and dissolved oxygen demand due to resuspension of sediments
in the vicinity of your current and modified discharge(s) (mg/L/
day).
C. Biological Conditions
1. (L) Provide a detailed description of representative
biological communities (e.g., plankton, macrobenthos, demersal fish,
etc.) in the vicinity of your current and modified discharge(s):
within the ZID, at the ZID boundary, at other areas of potential
discharge-related impact, and at reference (control) sites.
Community characteristics to be described shall include (but not be
limited to) species composition; abundance; dominance and diversity;
spatial/temporal distribution; growth and reproduction; disease
frequency; trophic structure and productivity patterns; presence of
opportunistic species; bioaccumulation of toxic materials; and the
occurrence of mass mortalities.
2. (L,S)a. Are distinctive habitats of limited distribution
(such as kelp beds or coral reefs) located in areas potentially
affected by the modified discharge? [40 CFR 125.62(c)]
b. If yes, provide information on type, extent, and location of
habitats.
3. (L,S)a. Are commercial or recreational fisheries located in
areas potentially affected by the discharge? [40 CFR 125.62 (c) and
(d)]
b. If yes, provide information on types, location, and value of
fisheries.
D. State and Federal Laws [40 CFR 125.61 and 125.62(a)(1)]
1. (L,S) Are there water quality standards applicable to the
following pollutants for which a modification is requested:
--Biochemical oxygen demand or dissolved oxygen?
--Suspended solids, turbidity, light transmission, light scattering,
or maintenance of the euphotic zone?
--pH of the receiving water?
2. (L,S) If yes, what is the water use classification for your
discharge area? What are the applicable standards for your discharge
area for each of the parameters for which a modification is
requested? Provide a copy of all applicable water quality standards
or a citation to where they can be found.
3. (L,S) Will the modified discharge: [40 CFR 125.59(b)(3)].
--Be consistent with applicable State coastal zone management
program(s) approved under the Coastal Zone Management Act as
amended, 16 U.S.C. 1451 et seq.? [See 16 U.S.C. 1456(c)(3)(A)]
--Be located in a marine sanctuary designated under Title III of the
Marine Protection, Research, and Sanctuaries Act (MPRSA) as amended,
16 U.S.C. 1431 et seq., or in an estuarine sanctuary designated
under the Coastal Zone Management Act as amended, 16 U.S.C. 1461? If
located in a marine sanctuary designated under Title III of the
MPRSA, attach a copy of any certification or permit required under
regulations governing such marine sanctuary. [See 16 U.S.C.
1432(f)(2)]
--Be consistent with the Endangered Species Act as amended, 16
U.S.C. 1531 et seq.? Provide the names of any threatened or
endangered species that inhabit or obtain nutrients from waters that
may be affected by the modified discharge. Identify any critical
habitat that may be affected by the modified discharge and evaluate
whether the modified discharge will affect threatened or endangered
species or modify a critical habitat. [See 16 U.S.C. 1536(a)(2)].
4. (L,S) Are you aware of any State or Federal laws or
regulations (other than the Clean Water Act or the three statutes
identified in item 3 above) or an Executive Order which is
applicable to your discharge? If yes, provide sufficient information
to demonstrate that your modified discharge will comply with such
law(s), regulation(s), or order(s). [40 CFR 125.59 (b)(3)].
III. Technical Evaluation
A. Physical Characteristics of Discharge [40 CFR 125.62(a)]
1. (L,S) What is the critical initial dilution for your current
and modified discharge(s) during (1) the period(s) of maximum
stratification? and (2) any other critical period(s) of discharge
volume/composition, water quality, biological seasons, or
oceanographic conditions?
2. (L,S) What are the dimensions of the zone of initial dilution
for your modified discharge(s)?
3. (L) What are the effects of ambient currents and
stratification on dispersion and transport of the discharge plume/
wastefield?
4. (S) Will there be significant sedimentation of suspended
solids in the vicinity of the modified discharge?
5. (L) Sedimentation of suspended solids
a. What fraction of the modified discharge's suspended solids
will accumulate within the vicinity of the modified discharge?
b. What are the calculated area(s) and rate(s) of sediment
accumulation within the vicinity of the modified discharge(s) (g/
m2/yr)?
c. What is the fate of settleable solids transported beyond the
calculated sediment accumulation area?
B. Compliance with Applicable Water Quality Standards and CWA
Sec. 304(a)(1) water quality criteria [40 CFR 125.61(b) and
125.62(a)]
1. (L,S) What is the concentration of dissolved oxygen
immediately following initial dilution for the period(s) of maximum
stratification and any other critical period(s) of discharge volume/
composition, water quality, biological seasons, or oceanographic
conditions?
2. (L,S) What is the farfield dissolved oxygen depression and
resulting concentration due to BOD exertion of the wastefield during
the period(s) of maximum stratification and any other critical
period(s)?
3. (L) What are the dissolved oxygen depressions and resulting
concentrations near the bottom due to steady sediment demand and
resuspension of sediments?
4. (L,S) What is the increase in receiving water suspended
solids concentration immediately following initial dilution of the
modified discharge(s)?
5. (L) What is the change in receiving water pH immediately
following initial dilution of the modified discharge(s)?
6. (L,S) Does (will) the modified discharge comply with
applicable water quality standards for:
--Dissolved oxygen?
--Suspended solids or surrogate standards?
--pH?
7. (L,S) Provide data to demonstrate that all applicable State
water quality standards, and all applicable water quality criteria
established under Section 304(a)(1) of the Clean Water Act for which
there are no directly corresponding numerical applicable water
quality standards approved by EPA, are met at and beyond the
boundary of the ZID under critical environmental and treatment plant
conditions in the waters surrounding or adjacent to the point at
which your effluent is discharged. [40 CFR 125.62(a)(1)]
8. (L,S) Provide the determination required by 40 CFR
125.61(b)(2) for compliance with all applicable provisions of State
law, including water quality standards or, if the determination has
not yet been received, a copy of a letter to the appropriate
agency(s) requesting the required determination.
C. Impact on Public Water Supplies [40 CFR 125.62(b)]
1. (L,S) Is there a planned or existing public water supply
(desalinization facility) intake in the vicinity of the current or
modified discharge?
2. (L,S) If yes:
a. What is the location of the intake(s) (latitude and
longitude)?
b. Will the modified discharge(s) prevent the use of intake(s)
for public water supply?
c. Will the modified discharge(s) cause increased treatment
requirements for public water supply(s) to meet local, State, and
EPA drinking water standards?
D. Biological Impact of Discharge [40 CFR 125.62(c)]
1. (L,S) Does (will) a balanced indigenous population of
shellfish, fish, and wildlife exist:
--Immediately beyond the ZID of the current and modified
discharge(s)?
--In all other areas beyond the ZID where marine life is actually or
potentially affected by the current and modified discharge(s)?
2. (L,S) Have distinctive habitats of limited distribution been
impacted adversely by the current discharge and will such habitats
be impacted adversely by the modified discharge?
3. (L,S) Have commercial or recreational fisheries been impacted
adversely by the current discharge (e.g., warnings, restrictions,
closures, or mass mortalities) or will they be impacted adversely by
the modified discharge?
4. (L,S*) Does the current or modified discharge cause the
following within or beyond the ZID: [40 CFR 125.62(c)(3)]
--Mass mortality of fishes or invertebrates due to oxygen depletion,
high concentrations of toxics, or other conditions?
--An increased incidence of disease in marine organisms?
--An abnormal body burden of any toxic material in marine organisms?
--Any other extreme, adverse biological impacts?
5. (L,S) For discharges into saline estuarine waters: [40 CFR
125.62 (c)(4)]
--Does or will the current or modified discharge cause substantial
differences in the benthic population within the ZID and beyond the
ZID?
--Does or will the current or modified discharge interfere with
migratory pathways within the ZID?
--Does or will the current or modified discharge result in
bioaccumulation of toxic pollutants or pesticides at levels which
exert adverse effects on the biota within the ZID?
No section (h) modified permit shall be issued where the
discharge enters into stressed saline estuarine waters as stated in
40 CFR 125.59(b)(4).
6. (L,S) For improved discharges, will the proposed improved
discharge(s) comply with the requirements of 40 CFR 125.62(a)
through 125.62(d)? [40 CFR 125.62(e)]
7. (L,S) For altered discharge(s), will the altered discharge(s)
comply with the requirements of 40 CFR 125.62(a) through 125.62(d)?
[40 CFR 125.62(e)]
8. (L,S) If your current discharge is to stressed ocean waters,
does or will your current or modified discharge: [40 CFR 125.62(f)]
--Contribute to, increase, or perpetuate such stressed condition?
--Contribute to further degradation of the biota or water quality if
the level of human perturbation from other sources increases?
--Retard the recovery of the biota or water quality if human
perturbation from other sources decreases?
E. Impacts of Discharge on Recreational Activities [40 CFR
125.62(d)]
1. (L,S) Describe the existing or potential recreational
activities likely to be affected by the modified discharge(s) beyond
the zone of initial dilution.
2. (L,S) What are the existing and potential impacts of the
modified discharge(s) on recreational activities? Your answer should
include, but not be limited to, a discussion of fecal coliform
bacteria.
3. (L,S) Are there any Federal, State, or local restrictions on
recreational activities in the vicinity of the modified
discharge(s)? If yes, describe the restrictions and provide
citations to available references.
4. (L,S) If recreational restrictions exist, would such
restrictions be lifted or modified if you were discharging a
secondary treatment effluent?
F. Establishment of a Monitoring Program [40 CFR 125.63]
1. (L,S) Describe the biological, water quality, and effluent
monitoring programs which you propose to meet the criteria of 40 CFR
125.63. Only those scientific investigations that are necessary to
study the effects of the proposed discharge should be included in
the scope of the 301(h) monitoring program [40 CFR
125.63(a)(1)(i)(B)].
2. (L,S) Describe the sampling techniques, schedules, and
locations, analytical techniques, quality control and verification
procedures to be used.
3. (L,S) Describe the personnel and financial resources
available to implement the monitoring programs upon issuance of a
modified permit and to carry it out for the life of the modified
permit.
G. Effect of Discharge on Other Point and Nonpoint Sources [40 CFR
125.64]
1. (L,S) Does (will) your modified discharge(s) cause additional
treatment or control requirements for any other point or nonpoint
pollution source(s)?
2. (L,S) Provide the determination required by 40 CFR 125.64(b)
or, if the determination has not yet been received, a copy of a
letter to the appropriate agency(s) requesting the required
determination.
H. Toxics Control Program and Urban Area Pretreatment Program [40
CFR 125.65 and 125.66]
1. a. (L,S) Do you have any known or suspected industrial
sources of toxic pollutants or pesticides?
b. (L,S) If no, provide the certification required by 40 CFR
125.66(a)(2) for small dischargers, and required by 40 CFR
125.66(c)(2) for large dischargers.
c. (L,S*) Provide the results of wet and dry weather effluent
analyses for toxic pollutants and pesticides as required by 40 CFR
125.66(a)(1). (* to the extent practicable)
d. (L,S*) Provide an analysis of known or suspected industrial
sources of toxic pollutants and pesticides identified in (1)(c)
above as required by 40 CFR 125.66(b). (* to the extent practicable)
2. (S)a. Are there any known or suspected water quality,
sediment accumulation, or biological problems related to toxic
pollutants or pesticides from your modified discharge(s)?
(S)b. If no, provide the certification required by 40 CFR
125.66(d)(2) together with available supporting data.
(S)c. If yes, provide a schedule for development and
implementation of nonindustrial toxics control programs to meet the
requirements of 40 CFR 126.66(d)(3).
(L)d. Provide a schedule for development and implementation of a
nonindustrial toxics control program to meet the requirements of 40
CFR 125.66(d)(3).
3. (L,S) Describe the public education program you propose to
minimize the entrance of nonindustrial toxic pollutants and
pesticides into your treatment system. [40 CFR 125.66(d)(1)]
4. (L,S) Do you have an approved industrial pretreatment
program?
a. If yes, provide the date of EPA approval.
b. If no, and if required by 40 CFR part 403 to have an
industrial pretreatment program, provide a proposed schedule for
development and implementation of your industrial pretreatment
program to meet the requirements of 40 CFR part 403.
5. Urban area pretreatment requirement [40 CFR 125.65]
Dischargers serving a population of 50,000 or more must respond.
a. Provide data on all toxic pollutants introduced into the
treatment works from industrial sources (categorical and
noncategorical).
b. Note whether applicable pretreatment requirements are in
effect for each toxic pollutant. Are the industrial sources
introducing such toxic pollutants in compliance with all of their
pretreatment requirements? Are these pretreatment requirements being
enforced? [40 CFR 125.65(b)(2)]
c. If applicable pretreatment requirements do not exist for each
toxic pollutant in the POTW effluent introduced by industrial
sources,
--provide a description and a schedule for your development and
implementation of applicable pretreatment requirements [40 CFR
125.65(c)], or
--describe how you propose to demonstrate secondary removal
equivalency for each of those toxic pollutants, including a schedule
for compliance, by using a secondary treatment pilot plant. [40 CFR
125.65(d)]
[FR Doc. 94-19058 Filed 8-8-94; 8:45 am]
BILLING CODE 6560-50-P
