vvEPA
United States
Environmental Protection
Agency
Office of Water
(4504F)
Washington, DC 20560
EPA 842-R-
April 1994
Clean Water Act Section 403
Report to Congress:
Phase II — Point Source
Discharges Inside the
Baseline
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Recycled/Recyclable
Printed with Soy/Canola Ink on paper that
contains at least 50% recycled fiber
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Clean Water Act Section 403
Report to Congress:
Phase II—Point Source Discharges
Inside the Baseline
April 1994
United States Environmental Protection Agency
Office of Wetlands, Oceans and Watersheds
Oceans and Coastal Protection Division
Washington, DC
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Section 403 Report to Congress: Phase II
CONTENTS
Page
TABLES v
FIGURES v
EXECUTIVE SUMMARY vii
1. INTRODUCTION 1
Review of Section 403 Requirements 2
Findings and Conclusions of the Section 403 Report
to Congress: Phase I 4
2. PROGRAMS FOR CONTROLLING POINT SOURCE EFFLUENT
DISCHARGES 7
NPDES Permitting Program 7
Legislative and Regulatory History of Section 403 8
Where the Section 403 Program Has Been Most Useful in
Protecting the Marine Environment 9
3. IMPLICATIONS OF EXTENDING SECTION 403 INSIDE
THE BASELINE 13
Potential Applications 13
Protection of Sensitive Habitats 17
Alternative Assessments 17
Pollution Prevention 18
Burden of Proof 18
Potential Difficulties 18
Number of Discharges Potentially Affected 19
Scientific Limitations 19
Resource Requirements 22
Other Considerations 24
Recommended Applications 25
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Contents
CONTENTS (continued)
4. FINDINGS 27
REFERENCES CITED 29
ADDITIONAL REFERENCES 29
GLOSSARY 33
ACRONYMS 37
IV
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Section 403 Report to Congress: Phase II
TABLES
Table
1 Ocean Discharge Guidelines 3
2 Long List of Pollutants of Concern and Environmental
Media in Which They Were Measured . 10
3 Short List of Pollutants of Concern: Water and
Sediment Criteria 11
4 Comparison of the Water Quality Standards and
Permitting Process and Section 403 Ocean Discharge
Guidelines (§ 125.122) 14
5 Comparison of the Water Quality Standards and
Permitting Process and Information Required to
Be Submitted by the 403 Applicant Pursuant to § 125.124 16
6 Estimated Number of Point Source Discharges
to Estuarine Waters 20
7 Industrial Categories of Concern 20
8 Estimated Number of Major Discharges to Estuarine Waters
from Facilities in the Industrial Categories of Concern
and POTWs (by Region and State) 21
FIGURES
Figure Page
1 Estimated Annual Costs for EPA and NPDES-Authorized States
to Implement Requirements of Section 403 Inside the
Baseline 23
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Section 403 Report to Congress: Phase II
EXECUTIVE SUMMARY
Purpose
In response to a request from the U.S. House of Representatives, Committee on Merchant
Marine and Fisheries, the U.S. Environmental Protection Agency (EPA) has conducted an
inventory and assessment of effluent discharges to estuarine waters. The purpose of this
effort is to provide Congress with the information necessary to properly consider the
consequences of legislation that would extend the requirements of section 403 of the Clean
Water Act (CWA) to include effluent discharges to estuarine waters. This report responds to
Congress's request for information and presents the findings of EPA's assessment.
Background
Section 403 currently requires that discharges to the territorial seas, contiguous zone, and
oceans comply with regulatory requirements above and beyond those specifically required of
a typical National Pollutant Discharge Elimination System (NPDES) permit. Such
requirements are intended to ensure that no unreasonable degradation of the marine
environment will occur as a result of a discharge; these requirements can include ambient
monitoring programs designed to determine degradation of marine waters, alternative
assessments designed to evaluate the consequences of various disposal options, and process
modifications designed to reduce the quantities of pollutants requiring disposal and thus the
potential for environmental harm. In evaluating the potential effects of a marine1 discharge
during permit application review, the permitting authority must consider 10 factors or
guidelines that emphasize an assessment of the impact of a marine discharge both on the
biological community hi the area of the discharge and on surrounding biological communities.
Under the provisions of section 403, the permitting authority can require the permit applicant
to provide the information necessary to conduct such an assessment. An NPDES permit
cannot be issued for these discharges unless the requirements of section 403 are met.
Discharges to the surface waters of the United States are permitted under either individual or
general NPDES permits. An individual permit normally involves one or more stationary
outfalls (pipes) discharging from a single facility. A general NPDES permit (under 40 CFR
122.28) may be written to regulate multiple point sources that have the same or similar types
of operations, discharge the same or similar types of wastes, and require the same or similar
effluent limitations and monitoring conditions. For example, EPA issues general NPDES
permits that cover discharges from offshore oil and gas activities and discharges from seafood
processing.
1 For ease of reference, this report will use one term, "marine discharge."
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Executive Summary
There are currently 303 land-based marine discharges under individual permits known to be
subject to the provisions of section 403. Although the number varies each year, approxi-
mately 2,549 oil and gas exploration and production facilities are currently permitted to
discharge to marine waters under 5 general permits (USEPA, 1993). Also, approximately 300
seafood processing facilities discharge to Alaskan marine waters under a single general
permit. However, not all oil and gas and seafood discharges are covered under general
NPDES permits; some are covered under individual permits. Both general and individual
permit discharges are also subject to section 403 requirements.
Extension of Section 403 Inside the Baseline
EPA estimates that almost 20,000 industrial and municipal facilities (including more than
2,600 "major", facilities) discharge into estuarine waters of the United States. This is nearly
one-third of the total number of point source discharges currently regulated under the NPDES
program. For the purposes of this report, this number includes all discharges that occur
directly to estuarine waters or to waters in estuarine drainage areas and is based on an
evaluation of the National Oceanic and Atmospheric Administration's (NOAA) National
Coastal Pollutant Discharge Inventory (NCPDI) and EPA's Permit Compliance System (PCS)
permit inventory. All or some portion of these discharges could be subject to section 403
should the program be extended to include estuarine discharges.
In addition to section 403, several other pollution control programs with application to coastal
waters are required under the CWA, including the water quality standards (section 303(c))
program and the NPDES permit (section 402(a)) program, both of which apply to the
territorial seas as well as waters inside the baseline. The water quality-based permitting
program under NPDES regulates discharges to coastal waters by requiring them to comply
with all State water quality standards. EPA believes that the issuance of NPDES permits to
ensure compliance with water quality standards fulfills many of the objectives of section 403;
however, in certain circumstances the section 403 process can serve as a regulatory tool that
complements and goes beyond existing approaches to water pollution control in the estuarine
environment. The potential benefits of implementing section 403 for discharges to estuarine
waters include (1) protection of sensitive habitats (e.g., coral reefs, shellfish beds): the
additional environmental assessments required for discharges of greatest concern to sensitive
and ecologically important estuarine environments (i.e., Ocean Discharge Criteria Evaluations
and ambient monitoring requirements); (2) alternative assessments: the requirement to
demonstrate that there is no reasonable alternative to the on-site disposal of waste materials;
(3) pollution prevention: the requirement to evaluate potential pollution prevention options
prior to being allowed to discharge; and (4) burden of proof: the requirement that the permit
applicant submit sufficient information to support a determination to issue an NPDES permit
(i.e., demonstrate that no unreasonable degradation of the environment will occur as a result
of the discharge).
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Section 403 Report to Congress: Phase II
The potential problems associated with applying section 403 to waters inside the baseline are,
however, also significant. These problems are related to the large number of discharges
potentially affected and other factors, including the following:
• The limited scientific understanding of, and ability to establish a direct relationship
between, the sources, fate, and effects on biological communities and biological
systems of pollutants discharged to estuarine and marine waters.
• The additional time that would be required to evaluate the considerable amount of
environmental data that could be required under section 403, potentially resulting in
significant increases in backlogs and delays in permit reissuance.
• The resources that would be required by EPA and the States to implement the
program, potentially resulting in fewer available resources for other EPA and State
programs with important implications for marine and estuarine waters.
Findings
Based on EPA's evaluation of estuarine discharges and pollutants of concern for estuarine
waters and its assessment of the implications of requiring implementation of section 403 for
such discharges, the Agency has developed the following findings:
• Implementing section 403 for all estuarine discharges on a broad-scale basis is not
necessary or advisable.' In the majority of cases, the water quality-based approach to
permitting is sufficient to protect estuarine environments from unreasonable
degradation due to effluent discharges. The limits of scientific information to address
the Ocean Discharge Criteria restrict EPA's ability to fully implement section 403
inside the baseline. The costs to industry and municipalities associated with requiring
all estuarine dischargers to conduct section 403-type assessments and the costs to EPA
and NPDES -authorized States to review the information generated by these
assessments could be disproportionately large compared to the environmental benefits
that would be derived.
• If Congress mandates the application of section 403 to estuarine discharges, EPA
should be given authority to implement the program on a discretionary basis. In
certain circumstances, the requirements of section 403 could be used to focus
environmental impact assessments on estuarine or other sensitive habitats that may not
be fully protected by the water quality standards regulations of section 402. The
section 403 requirements could make it easier to require certain types of information
(e.g., monitoring data) from dischargers and to require an alternative discharge
evaluation as stated in EPA's current regulations (40 CFR, Part 125, Subpart M).
IX
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Executive Summary
Such circumstances would include (1) when less environmentally damaging alterna-
tives to direct effluent discharge may be available; (2) when impacts may occur due to
pollutants for which no water quality standards exist; and (3) any other circumstance
where the permit writer does not believe sufficient information is available to make an
informed decision concerning a discharge's potential impact on ecologically sensitive
habitats or resources (e.g., coral reefs, shellfish beds).
As an alternative approach to extending section 403 authority, section 402 could be
amended to specifically require assessments similar to those required under section
403 for select estuarine discharges of concern. Either approach would achieve the
same end result, the requirement for additional environmental assessments for those
discharges of greatest concern in estuarine waters.
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Section 403 Report to Congress: Phase II
1. INTRODUCTION
Congress passed the Federal Water Pollution Control Act (FWPCA) of 1972 out of concern
that existing Federal and State efforts in water pollution control were not effective. The
framework of the FWPCA, now amended and commonly known as the Clean Water Act
(CWA), is generally based on a two-pronged approach. First, the Environmental Protection
Agency (EPA) is to develop national minimum technology-based treatment requirements
based on an assessment of the achievability of control technologies by individual categories of
dischargers. Second, States are to set water quality standards to be used in addition to
technology-based controls to achieve water quality objectives for a particular body of water.
In the case of marine discharges, section 403 of the CWA further requires that such
discharges comply with additional conditions that emphasize an assessment of the impact of a
marine discharge both on the biological community in the area of the discharge and on
surrounding biological communities. All discharges that occur hi waters beyond the baseline
from which the territorial seas are measured (i.e., the territorial seas, contiguous zone, and
oceans) are currently subject to the provisions of section 403.
In section 1007 of the Ocean Dumping Ban Act of 1988, Congress requested a report from
EPA on the current status of the implementation of section 403. The Report to Congress on
Implementation of Section 403(c) of the Clean Water Act, also known as the "Section 403
Report to Congress: Phase I," was submitted to Congress in June 1990 (USEPA, 1990b).
The focus of the Phase I report was the reported 323 land-based marine discharges under
individual permits known to be subject to section 403 in 1990. Information was also
presented on facilities under general permits that discharge to marine waters (10 offshore oil
and gas general permits and a single general permit for seafood processers).
Based on the information presented in the Phase I report, members of the U.S. House of
Representatives, Committee on Merchant Marine and Fisheries, sent a letter to the
Administrator of EPA requesting information on discharges to estuarine waters. The letter
requested that EPA provide Congress with the information necessary to properly consider the
consequences of legislation that would extend the requirements of section 403 to include
effluent discharges in estuarine waters. Specifically, Congress requested the identification of
estuarine discharges by State and, if possible, by waterbody; the identification of major and
minor discharges; and an evaluation of industry or pollutant categories and the potential
environmental effects of such "categorized discharges" in estuarine waters. The purpose of
this report, known as the "Section 403 Report to Congress: Phase II," is to address these
issues and to evaluate the implications of extending section 403 requirements into estuarine
waters. There is some degree of overlap hi the material presented in the Phase I and Phase II
reports. However, the focus of the Phase I report is on direct marine discharges, whereas the
focus of the Phase II report is on estuarine discharges.
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Introduction
The remainder of this chapter provides a brief summary of the jurisdiction of section 403 and
a review of the Phase I report. Chapter 2 of this document describes existing programs for
controlling point source effluent discharges. The implications of extending section 403 to
include estuarine waters are discussed in Chapter 3. The findings of this assessment are
presented in Chapter 4.
Review of Section 403 Requirements
Section 403 of the CWA is that part of the National Pollutant Discharge Elimination System
(NPDES) permitting process that currently applies only to effluent discharges seaward of the
baseline. In addition to the requirements specifically defined in section 403, all marine
discharges must also meet the requirements of CWA section 402, including both technology-
based and, for discharges to the territorial seas, water quality-based pollution controls.
Section 403 provides that no NPDES permit for discharges to the territorial sea, the waters of
the contiguous zone, or oceans may be issued unless it is hi compliance with the marine
discharge guidelines. Section 403 required EPA to promulgate such guidelines to be used for
determining the degradation of the marine environment. These guidelines include an
evaluation of the following:
• The effect of disposal of pollutants on human health or welfare, including but not
limited to plankton, fish, shellfish, wildlife, shorelines, and beaches.
• The effect of disposal of pollutants on marine life, including the transfer,
concentration, and dispersal of pollutants or their by-products through biological,
physical, and chemical processes; changes hi marine ecosystem diversity, productivity,
and stability; and species and community population changes.
• The effect of disposal of pollutants on aesthetic, recreation, and economic values.
• The persistence and permanence of the effects of disposal of pollutants.
• The effect of disposal, at varying rates, of particular volumes and concentrations of
pollutants.
• Other possible locations and methods of disposal or recycling of pollutants including
land-based alternatives.2
*It should be noted that consideration of available alternatives is part of the permitting process for New Sources (i.e.,
offshore oil and gas) under the National Environmental Policy Act.
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Section 403 Report to Congress: Phase II
• The effect on alternative uses of the oceans, such as mineral exploitation and scientific
study.
EPA's Ocean Discharge Criteria regulations (40 CFR Part 125, Subpart M [45 FR 65942,
October 3, 1980]) establish the guidelines required by section 403. The regulations prohibit
issuance of a permit if unreasonable degradation of the marine environment would result and
specify 10 factors to be considered when making this determination (Table 1). These factors
or guidelines are primarily aimed at assessing the ecological effects of discharges. Based on
Table 1. Ocean Discharge Guidelines
(1) Quantities, composition, and potential bioaccumulation or persistence of the
pollutants to be discharged.
(2) Potential transport of the pollutants by biological, physical, or chemical
processes.
(3) Composition and vulnerability of potentially exposed biological communities,
including
• unique species or communities,
• endangered or threatened species,
• species critical to the structure or function of the ecosystem.
(4) Importance of the receiving water area to the surrounding biological community,
e.g.,
• spawning sites,
• nursery/forage areas,
• migratory pathways,
• areas necessary for critical life stages/functions of an organism.
(5) The existence of special aquatic sites, including (but not limited to)
• marine sanctuaries/refuges,
• parks,
• monuments,
• national seashores,
• wilderness areas, and
• coral reefs/seagrass beds.
(6) Potential direct or indirect impacts on human health.
(7) Existing or potential recreational and commercial fishing.
(8) Any applicable requirements of an approved Coastal Zone Management Plan
(CZMP).
(9) Such other factors relating to the effects of the discharge as may be appropriate.
(10) Marine water quality criteria.
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Introduction
the results of such an assessment, section 403 provides an opportunity to develop permit
limits and conditions to ensure that unreasonable degradation does not result. Much, if not
all, of the information necessary to make these evaluations already will be available to the
permitting authority. If such information is not available to the permitting authority,
additional information may be requested from the applicant. In those cases where insufficient
information exists to support a finding of no unreasonable degradation, applicants must
demonstrate that the discharge will not cause irreparable harm, perform any necessary
monitoring, and conduct an alternative assessment as part of permit conditions. The permit
may also include any additional safeguards as specified in the regulations, including the
requirement for process modifications such as the substitution of less hazardous chemicals for
those which are potentially harmful. A more complete discussion of the Ocean Discharge
Criteria regulations and their implementation is presented hi the Phase I report.
Findings and Conclusions of the Section 403 Report to Congress: Phase I
In 1990, the Phase I report identified 323 "definite" discharges and 217 "potential" discharges
subject to section 403 compliance under individual NPDES permits (not including general
permits).3 Of the 323 discharges with individual permits known to be subject to section 403
hi 1990, 53 percent were sewage treatment facilities, 10 percent were industrial plants
discharging conventional pollutants (BOD, total suspended solids, pH, etc.), 27 percent were
industrial plants discharging toxic and nonconventional pollutants, and 10 percent were
electric facilities. The areas with the greatest number of direct marine discharges under
individual permits subject to section 403 were Puerto Rico and the Virgin Islands (74),
Hawaii and the Pacific Islands (67), and California (45).
General NPDES permits are also issued under section 403 in those cases where a number of
like discharges with similar effluent are operating under similar discharge conditions. As
explained in the Phase I report, all general permits subject to section 403 requirements, except
one that was issued for seafood processing, were written for offshore oil and gas activities.
At the time of the Phase I report, there were nine offshore oil and gas exploration and
production general permits covering activities located in the Gulf of Mexico and offshore
Alaska and California.4
EPA has found that although most discharges outside the baseline are in compliance with
section 403, the detail and extent of the review, the effectiveness of the monitoring programs,
3EPA estimates that in 1992 there were 303 ocean discharges under individual permits subject to the provisions of
section 403.
''Currently there are only five general permits for offshore oil and gas activities: two in the Gulf of Mexico, one in
California waters, and two in Alaskan waters.
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Section 403 Report to Congress: Phase II
and the level of review performed after the permits are issued have varied by Region, State,
and discharge. The Agency also identified potential barriers to the effective implementation
of section 403 outside the baseline, including limitations on available resources and technical
support and limitations of the scientific knowledge to adequately address the complex issues
of biological impacts and toxicity assessments in the marine environment.
The limited resources available for performing section 403 reviews at the State level and for
monitoring and providing guidance for State activities have been identified as a major
impediment to full implementation of the current section 403 authority. EPA estimates that
implementation of section 403 for all known "major"5 individual direct marine discharge
permits (for approximately 180 major discharges) currently costs a total of approximately $1.1
million annually, including EPA Headquarters, Regional, and contracting support. This level
of effort includes only the resources required to address those NPDES permitting elements
that result directly from section 403 requirements. These elements are primarily related to
program development, section 403 evaluations, and monitoring/modeling activities. EPA also
estimates that the States authorized to carry out the NPDES permit program require
approximately $250,000 annually for conducting section 403 reviews for individual permits of
major direct marine discharges.
The effective implementation of section 403 has also been limited by a lack of established
specific technical guidance for determining "unreasonable degradation," "no irreparable harm,"
and "no reasonable alternatives to on-site disposal." To address these and other section 403-
related technical issues, EPA is developing a strategy to ensure more consistent
implementation of section 403 requirements in marine environments. As part of this strategy,
the Agency is working to develop national technical and procedural guidance, incorporate new
technological advances and criteria, and integrate section 403 procedures into the water
quality-based approach for toxics control in marine waters.
The Phase I report suggested that no additional legislative authority (beyond the mandates of
section 403) is necessary to protect the marine environment from the impacts of direct marine
discharges since the section 403 authority is adequate for accomplishing that purpose.
However, the Agency is considering amending existing regulations to ensure more consistent
implementation of the section 403 marine discharge program.
The Phase I report concludes that the success of incorporating the section 403 guidelines into
the permitting processes depends on (1) the extent to which science can be developed to
5EPA classifies industrial discharges as "major" or "minor" based on an evaluation of the potential for toxic pollutant
discharge, traditional pollutants in the effluent, potential human health impacts, flow rate of effluent, and various water
quality factors. Municipal discharges are classified as "major" if ownership is public, the facility is active, the flow rate
is 1 million or more gallons per day or a population of 10,000 is served, or the discharge causes significant water quality
impacts.
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Introduction
establish a cause-and-effect relationship between discharges and adverse effects on the marine
environment; (2) the extent to which there is information to address the marine discharge
criteria; (3) the resources that the Agency and NPDES-authorized States are able to commit to
the reviews, permit writing, and analysis of data generated from monitoring requirements in
the permits; (4) the development of methods for establishing sediment and biological criteria
for marine receiving waters; and (5) national technical guidance for conducting section 403
evaluations.
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Section 403 Report to Congress: Phase II
2. PROGRAMS FOR CONTROLLING POINT SOURCE
EFFLUENT DISCHARGES
NPDES Permitting Program
Section 403 is one of many authorities under the comprehensive CWA to regulate discharges
of pollutants to the surface waters of the United States. In considering whether to apply
section 403 to dischargers inside the baseline, it is important to keep this in mind. Because
application of section 403 takes place within the overall framework of CWA point source
control requirements, a brief summary of those requirements is set out below.
Section 402 of the CWA and its implementing regulations established the National Pollutant
Discharge Elimination System (NPDES), under which permits are issued to point source
dischargers to waters of the United States. The NPDES regulations make it clear that all
discharges to waters of the United States must comply with State water quality standards.
The regulations, furthermore, require that all discharges be evaluated for their potential to
impair water quality and that water quality limits are mandatory wherever States and/or EPA
project water quality impairment.
NPDES permits are intended to set out the conditions under which facilities must operate in
order to meet all technology-based requirements and attain State water quality standards.
NPDES permits must specify national minimum treatment requirements based on an
assessment of the achievability of control technologies by individual categories of dischargers
(the technology-based approach). The permits must also contain limitations more stringent
than technology-based where necessary to attain and maintain State water quality standards.
Under water quality-based permitting, pollution control is achieved through the integration of
the chemical-specific, whole-effluent toxicity, and biological criteria approaches. The
chemical-specific approach limits specific pollutants (including conventional and toxic
pollutants) based on applicable water quality (numeric) criteria and standards. The whole-
effluent toxicity approach limits the overall toxicity of effluents as measured by biological
toxicity tests and is especially applicable when specific pollutants in complex wastes have not
been or cannot be identified, nor their interactions assessed. In this case the determination of
effluent limitations or controls is based on the toxicity of the whole effluent, in addition to
that of a specific chemical, in order to address numeric and narrative State water quality
standards. The narrative "no toxics in toxic amounts" standard is common to all State water
quality standards. EPA is placing increased emphasis on the whole-effluent toxicity approach
and has developed detailed technical guidance on its use (USEPA, 1991).
Biological criteria provide a measurement of the ecological integrity of waterbody uses. The
biological criteria approach involves the use of numeric or narrative values to describe the
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Programs _^^^__^^^^^__^^^__^^^^^__^^^^^___^^_
biological integrity of aquatic communities in a reference waterbody. Biosurveys are then
used to collect information on the overall health of aquatic communities in a waterbody of
interest. Results of the biosurveys are compared to data for the reference waterbody to
determine whether the criteria are met. This approach assesses the biological community as a
whole and measures trends and changes in condition over tune. The concept of biocriteria is
still developing, and thus most States are not using biocriteria as part of their water quality-
based permits. However, biocriteria are being used by some States to help define designated
uses of waterbodies and enforce water quality standards (primarily in freshwater conditions).
Biological criteria are also being used to target places for controls derived using the chemical-
specific and whole-effluent approaches. EPA is currently developing guidance for States to
develop biocriteria in marine and estuarine waters.
State water quality standards apply to all waters inside the baseline and to the territorial seas.
In addition, all NPDES discharges to the territorial seas and to the open ocean (Federal waters
beyond the territorial seas where State standards do not apply) are required to comply with
the provisions of section 403, as well as any other applicable CWA requirements, before a
permit can be issued.
Legislative and Regulatory History of Section 403
Water pollution control legislation prior to the passage of the Federal Water Pollution Control
Act (now the Clean Water Act, as amended) in 1972 had focused primarily on inland coastal
waters. However, increasing exploitation of the oceans and accidents such as the Torrey
Canyon and Santa Barbara oil spills heightened public awareness of the need to protect the
oceans from the impacts of pollution. Section 403 of the CWA was passed to address this
growing concern. Congress believed that the recreational and economic importance of marine
resources, as well as the limited understanding of marine systems at the time, demanded more
stringent protective measures than those provided by technology- or effluent-based standards
(Public Law 92-500, 1972).
On October 15, 1973, EPA promulgated combined regulations implementing section 102(a) of
the Marine Protection, Research, and Sanctuaries Act (regulating ocean dumping activities)
and section 403 of the CWA. EPA later found, however, that these regulations proved
unworkable hi many respects as section 403 marine discharge criteria, due in part to statutory
distinctions as well as differences in the manner of disposal and the types of pollutants
discharged. EPA therefore determined that both the ocean dumping regulations and the
marine discharge criteria should be revised and published as separate regulations. As a result,
all references to section 403 were deleted from the revised ocean dumping regulations
promulgated in 1977. EPA subsequently issued the section 403 Ocean Discharge Criteria,
which became effective on November 3, 1980 (40 CFR Part 125, Subpart M [45 FR 65942,
October 2, 1980]).
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Section 403 Report to Congress: Phase II
Until recently, the focus of the section 403 marine discharge program has been the regulation
of offshore oil and gas activities. This was due in part to the large number of offshore oil
and gas facilities as compared to the number of land-based marine discharges. In 1980, there
were an estimated 3,000 offshore oil and gas facilities in operation as compared to
approximately 232 land-based facilities discharging to ocean waters (45 FR 65944, October 3,
1980). In addition, land-based facilities discharging to the territorial seas were already
regulated by the coastal States' water quality-based permitting programs. Because State water
quality standards do not apply beyond the territorial seas, a similar program for marine
discharges beyond the territorial seas does not exist. Section 403 has been particularly useful
in such waters, providing a clear basis for addressing water quality-based concerns.
EPA recently began to emphasize the need for requiring discharges to the territorial seas to
meet the objectives of section 403. This was because,, although the State water quality
standards program is designed to be applicable to the waters of the territorial seas as well as
waters inside the baseline, many States do not have applicable water quality standards for
marine/estuarine waters. A recent EPA assessment of pollutants of concern discharged to
marine and estuarine waters illustrates this point (USEiPA, 1990a). Although the assessment
was not comprehensive in scope, its end result was the development of a list of pollutants
believed to pose a significant threat to marine and estuarine environments (Table 2). The
pollutants were those believed to be prevalent in marine/estuarine waters and/or toxic to
marine/estuarine organisms. This list of pollutants of concern was further refined and
shortened based on an assessment of the pervasiveness of the pollutants in these
environments, as determined by how often they were limited in NPDES permits and through a
comparison with EPA and other data sources. Only those pollutants originating primarily
from point source discharges were included on this shorter list. As illustrated in the
comparison of pollutants of concern to EPA criteria and State standards (Table 3), of the 16
pollutants of concern, 7 have no applicable State water quality standards for marine/estuarine
waters. It should be noted that as a result of the recently promulgated National Toxics Rule,
many more of the listed pollutants of concern will be addressed in State water quality
standards (57 FR 60848, December 22, 1992). If environmental Impacts resulting from the
discharge of these pollutants is suspected, section 403 can be used to require additional
environmental assessments of those industrial facilities which discharge these pollutants to
State waters (territorial seas).
Where the Section 403 Program Has Been Most Useful in Protecting the Marine
Environment
The section 403 program has been most successful and necessary in regulating offshore oil-
and gas-related discharges and other discharges to ocean waters beyond the territorial seas
where State water quality standards are not applicable., Other than technology-based
standards, section 403 is the only regulatory mechanism for controlling effluent discharges
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Programs
Table 2. Long List of Pollutants of Concern and Environmental
Media in Which They Were Measured
Chemical Name
PAHs
PAHs (total)
Acenaphthene
Acenaphthylene
Anthracene
Benzo(a)anthracene
Benzo(a)pyrene
Benzo(b)fluoranthene
Benzo(g,h,i)perylene
Benzofluoranthenes
Chtysene
Coronene
Dibenz[a,h]anthracene
Fluoranthene
Fluorene
Indeno[l,2,3-cd]pyrene
Napthalene
Perylene
Phenanthrene
Pyrene
METALS
Aluminum
Antimony
Arsenic
Beryllium
Cadmium
Chromium
Copper
Cyanide
Iron
Lead
Manganese
Mercury
Nickel
Selenium
Silver
Thallium
Tin
Zinc
PESTICIDES
Aldrin
Chlordane
DDD
DDE
DDT
Dieldrin
Environmental Media
in which Measured"
Benthic
Benthic
Benthic
Benthic
Water column/benthic
Water column/benthic
Benthic
Benthic
Water column/benthic
Benthic
Fish tissue
Benthic
Fish tissue
Benthic
Benthic
Benthic
Fish tissue
Benthic
Benthic
Fish tissue
Benthic
Water column/benthic
Benthic
Water column
Water column
Water columnc
Fish tissue/water column
Multiple areas
Multiple areas
Fish tissue
Multiple areas
Water column
Benthic
Benthic
Benthic
Fish tissue
Water column
Benthic
Fish tissue
Fish tissue
Fish tissue
Multiple areas
Fish tissue
Chemical Name
Endrin
Heptachlor
Hexachlorocyclohexane
Isophorone
Methoxychlor
Mirex
Toxaphene
Trans - Nonachlor
OTHER POLLUTANTS
2,4-Dimethylphenol
2-Methylnapthalene
2-Methylphenol
4-Methylphenol
Benzoic acid
Benzyl alcohol
Chlorinated benzenes
Cymene isomers
meta-
ortho-
para-
Dichlorobenzenes
1 ,2-Dichlorobenzene
1 ,3-Dichlorobenzene
1 ,4-Dichlorobenzene
Dioxin (2,3,7,8-TCDD)
Diphenyl ethers
Ethylbenzene
Hexachlorobenzene
Hexachlorobutadiene
Hexachloroethane
Nitrosodiphenyl amine
PCBs (total)
Aroclor 1242
Aroclor 1254
Pentachlorophenol
Phenol
Phthalate esters
BIS (2-ethylhexyl)
Butyl benzyl
di-n-butyl
Diethyl
Dimethyl
Trichloroethene
Trichlorophenol
Xylene (total)
Environmental Media
in which Measured3
Fish tissue
Fish tissue
Fish tissue/benthic
Benthic
Fish tissue
Fish tissue
Fish tissue
Fish tissue
Benthic
Benthic
Benthic
Benthic
Benthic
Benthic
Fish tissue
Benthic
Benthic
Benthic
Fish tissue
Benthic
Benthic
Fish tissue/water column
Benthic
Fish tissue
Fish tissue
Benthic
Benthic
Multiple areas
Fish tissue
Fish tissue
Benthic
Benthic
Benthic
Benthic
Benthic
Benthic
Benthic
Benthic
Benthic
Benthic
* Based on 10 monitoring projects conducted by EPA and NOAA: Puget Sound, Black Rock Harbor, Narragansett Bay, San Francisco Bay,
Baltimore Harbor, Quincy Bay, Lake Ontario, Lake Michigan, NOAA/National Status and Trends: 1987 Progress Report, and
NOAA/National Ocean Service Fish and Shellfish Historical Assessment.
10
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Section 403 Report to Congress: Phase II
Table 3. Short List of Pollutants of Concern:
Water and Sediment Criteria
Pollutants of Concern (Chemical Abstracts ^
Service (CAS) Registry Number in Parenthesis) sr
Pentachlorophenol (87-86-5) • x
Fnenantnrene (oj-ui-o) x
Fyrene (129-00-0) o
Chromium (7440-47-3) ....-,..,. x
Copper (7440-50-8) x
Cyanide (87-86-5) x
T *>!>H fJAIQ Q7 A"i Y
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xr r-M^n no n-\
^ ^ C/1 <^ ^ ,/
-------
Programs
that occur seaward of State waters (i.e., 3 miles from shore). The program has also been
effective for regulatingdischarges to the territorial seas where State standards are applicable
but in many cases have not yet been established (for example, for the control of the seven
pollutants of concern on Table 3 for which no State marine standards exist).
Section 403 has been particularly effective in protecting sensitive aquatic habitats or sites in
which technology-based or water quality-based controls may not be sufficient to ensure
protection of the particular marine environment, necessitating more stringent controls to
ensure that section 403 criteria are met. Such sensitive habitats and areas might include
coral reefs, spawning sites, nursery or forage areas, migratory pathways or areas necessary
for other functions or critical stages in the life cycle of the organism, areas of high
productivity, or areas under stress due to biological or climatic conditions or discharges from
other sources.
The individual NPDES permits issued to eight offshore oil companies to drill in the vicinity
of the Flower Garden Banks (a hermatypic coral community in the north central Gulf of
Mexico) serve as an example of where section 403 has been used to protect sensitive aquatic
resources in a situation where technology- and water quality-based controls may not have
been adequate to protect these resources. As a result of evidentiary hearings on the permits
proposed by EPA for these discharges, an analysis of permit compliance with section 403 was
conducted. An environmental hazard assessment was conducted as part of this analysis. The
results of this assessment served as the basis for a negotiated settlement between the industry
and environmental groups. The settlement included the establishment of an effects-based
criterion (a concentration of drilling fluids that, on the basis of laboratory and field data, was
determined to be adequately protective of coral) that was required to be met at the biological
resource (the coral reef). This approach differs from the water quality-based approach in
several ways, including the following:
• A specific biological resource in situ was the target for achieving a criterion
concentration for the effluent.
• The criterion was based on the characteristics of the resource, not the effluent.
• The criterion was specified as having to be attained at a distance relative to the
resource, not some regulatory distance from the discharge.
12
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Section 403 Report to Congress: Phase II
3. IMPLICATIONS OF EXTENDING SECTION 403 INSIDE
THE BASELINE
Potential Applications
With recent improvements in water quality mixing zone models for estuarine and marine
environments and the development and adoption of whole-effluent toxicity testing
requirements, EPA questions the need for and utility of implementing section 403 for all
estuarine discharges. With the development of these improved methods, together with
existing water quality-based permitting tools, the water quality-based permitting approach
accomplishes many of the objectives of section 403. Under most circumstances, when water
quality evaluations are appropriately applied/conducted, the section 402 program provides a
level of environmental protection to the estuarine environment similar to that which would be
achieved with the implementation of section 403 requirements. The steps and information
required in writing a water quality-based NPDES permit for an estuarine discharger to a
major degree address the environmental concerns of the section 403 criteria. Tables 4 and 5
provide a point-by-point comparison illustrating this point.
Because of the similar degree of protection already afforded by other existing CWA
requirements, EPA does not believe a wholesale extension of section 403 inside the baseline
is necessary. Rather, EPA believes that if Congress were to decide to extend the section 403
requirements to estuarine waters, the requirements would best be applied on a case-by-case
basis to complement existing approaches to water pollution control in estuarine environments
in certain areas:
• Additional protection of particularly sensitive estuarine resources that are shown to be
experiencing stress from point source discharges.
• Assessment of alternative discharge locations where relocation of the discharge may
reduce potential impacts on sensitive resources.
• Assessment of the potential impact on ecological resources in State waters that do not
have State water quality standards for the pollutant of concern.
• Requiring an evaluation and installation of pollution prevention controls (as opposed to
end-of-pipe controls) as a permit condition if necessary to protect the environment.
• Requiring that the discharger (rather than the permitting authority) provide sufficient
information to demonstrate that no unreasonable degradation or irreparable harm is
occurring or will occur as a result of the discharge.
13
-------
Implications
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Section 403 Report to Congress: Phase II
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16
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Section 403 Report to Congress: Phase II
Protection of Sensitive Habitats. Estuaries are economically and environmentally important
biological areas that are known to be sensitive to human activities. They are also the ultimate
sinks of many pollutants discharged from numerous sources within the estuary itself, as well
as those from upstream sources. As discussed previously, discharges to estuarine waters are
already subject to many CWA pollution control requirements, and EPA believes that, when
appropriately and effectively applied, the water quality standards and permit provisions of
CWA sections 303 and 402 can provide a level of protection to most estuarine environments
similar to that provided by the provisions of section 403. However, under certain
circumstances, section 403 can be used to require additional assessments of the potential
impacts of effluent discharges on particularly sensitive and ecologically important estuarine
environments in the vicinity of the discharge and in surrounding waters. Such assessments
could include ambient monitoring and the equivalent of an Ocean Discharge Criteria
Evaluation (ODCE).
The existing NPDES water quality-based approach is designed to protect aquatic life from the
effects of pollutant discharges. For the protection of aquatic life, the water quality-based
approach involves an integrated strategy comprising three approaches: the chemical-specific
approach, the whole-effluent toxicity approach, and the biocriteria/bioassessment approach. In
addition, under the water quality-based approach, sediment contamination monitoring is also
recommended to determine whether contaminants are accumulating in sediments to the. extent
that unacceptable levels are being approached or exceeded. These same approaches are most
often the basis for making section 403 determinations. Therefore, the benefits of extending
section 403 inland would be limited to those cases where, for example, State standards are
still in development or where unique species or sensitive resources may be threatened by a
particular discharge.
Alternative Assessments. One section 403 provision not specifically addressed by the existing
water quality standards and water quality-based permitting process is consideration of
available alternatives to the discharge of pollutants. The section 403 regulations specify that,
if insufficient information is available prior to permit issuance to determine that there will be
no unreasonable degradation of the marine environment, a permit can be issued only if
additional criteria are met. One of these criteria is that: an alternative assessment be conducted
to demonstrate that "there is no reasonable alternative to the on-site disposal of these
materials." Under such an assessment, the applicant for the discharge permit must provide an
evaluation of available alternatives to the current discharge. Such alternatives could include
either disposal to facilities located on land or discharge to an alternative site. Thus, where the
precise impacts of a discharge are uncertain, one benefit of section 403 is to require an
assessment of alternatives to on-site direct discharges. By requiring an alternative assessment,
section 403 can be used on a permit-by-permit basis to ensure that options other than on-site
disposal to estuarine waters have been investigated and that the relative impacts (social,
economic, and environmental) of each disposal option have been evaluated.
17
-------
Implications
Pollution Prevention. Both section 403 and the water quality-based approach can promote
pollution prevention provisions as part of a discharge permit. For example, toxicity reduction
evaluations (TREs) are the principal mechanism for bringing a discharger into compliance
with water quality-based whole-effluent toxicity requirements. In some cases, TREs allow the
discharger the opportunity to investigate the causes of toxicity and to identify corrective
action. The requirement to conduct a TRE may be written into the special conditions section
of an NPDES permit that contains whole-effluent toxicity limits; however, the TRE is
conducted only upon identifying noncompliance with those limits. In some cases, TREs can
also be required through a separate notice, such as a section 308 letter, Administrative Order,
or Consent Decree. Corrective actions to reduce toxicity may involve simple housekeeping
activities or treatment or source reduction options. Under section 403, the permitting
authority can request of an applicant information on available process modifications that will
reduce the quantities of pollutants to be discharged prior to permit issuance. In addition, if
during permit review the permitting authority determines that there is insufficient information
to determine whether unreasonable degradation of the environment will occur as a result of a
discharge, the authority can require process modifications as part of a permit. Because
section 403 can be used to require an applicant to evaluate process modifications in cases
where the discharge has not been shown to satisfy the "no unreasonable degradation"
requirements of section 403, it can be used to place greater emphasis on pollution prevention.
Burden of Proof. Section 403 requires the discharger to provide sufficient information to
demonstrate that the discharge will not cause unreasonable degradation of the environment. If the
permitting authority determines that there is insufficient information to make such a determination,
ambient monitoring can be required of the discharger as part of the section 403 permit. Although
other CWA provisions can be used to require evaluations related to compliance with permit
requirements, by allowing EPA to require such information when necessary to determine whether
"unreasonable degradation" will result, section 403 provides an added ability to require
environmental monitoring of the impacts of the discharge.
Potential Difficulties
The problems associated with implementing section 403 inside the baseline are primarily related to
the (1) number of discharges potentially affected; (2) limited knowledge about all sources of
pollutants (point and nonpoint discharges, drainages, and watersheds) and their fate in estuarine
environments and effects on estuarine communities; and (3) resources necessary to implement the
program for all affected dischargers. While the problems of implementing 403 inside the baseline
are essentially similar to those currently posed by 403 implementation, the application of section
403 to estuarine waters will be less straightforward because of the inherent complexity of estuaries
(physical, chemical, and biological) and the complex pollutant loadings involved (point and nonpoint
sources; municipal, industrial, urban, and agricultural sources). The extent of these implementation
issues will depend on the extent to which section 403 may be applied. Application may range from
18
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Section 403 Report to Congress: Phase II
full implementation for all estuarine discharges to partial implementation for specific facilities,
industries, pollutants, waterbodies, and receiving environments. Alternatively, the decision may be
made not to apply section 403 within the baseline.
Number of Discharges Potentially Affected. EPA recently conducted an assessment of effluent
discharges to estuarine waters (direct discharges to estuarine waters and discharges to waters in
estuarine drainage areas) of the United States (USEPA, 1990a). This assessment was designed to
provide an estimate of the number and types of industrial and municipal discharges occurring in
estuarine waters. The assessment was based on an evaluation of the National Oceanic and
Atmospheric Administration's National Coastal Pollutant Discharge Inventory (NCPDI) and EPA's
Permit Compliance System (PCS) permit inventory. The discussion that follows presents a
summary of the results from this assessment. The purpose of the discussion is to provide an
estimate of the number and types of discharges that might be affected if compliance with section
403 were to include discharges to estuarine Waters.
EPA estimates that there are almost 20,000 industrial and municipal discharges occurring in
estuarine waters of the United States (Table 6). These include major and minor discharges. Of
these, nearly 5,000 are discharges from publicly owned treatment works (POTWs). Approximately
one-fourth of these POTWs receive indirect discharges from industrial facilities requiring
pretreatment. It is also estimated that one-third of all estuarine discharges occur in the following six
major estuarine drainage basins:
• Chesapeake Bay (1,805);
• Galveston Bay (1,414);
• Delaware River and Bay (1,058);
• Atehafalaya/Veirnillion Bays (989);
• Connecticut River and Long Island Sound (894); and
• Lake Pontchartrain (704).
EPA estimates that the total number of major discharges to estuarine waters is more than 2,600. Of
these major discharges, almost 2,000 are discharges from POTWs and industrial facilities in 12
specific industrial categories identified as posing a significant threat to estuarine environments
(Table 7). Table 8 presents the estimated number of major discharges from facilities in these
industrial categories of concern and POTWs by Region and State. More than half of these
discharges (1,126) are from POTWs, less than one-third of which receive indirect discharges from
industrial faculties requiring pretreatment.
Scientific Limitations. The limits of scientific information to address the Ocean Discharge Criteria
restrict EPA's ability to fully implement section 403 inside (as well as outside) the baseline. Many
of the technical/scientific problems posed in implementing; section 403 inside the baseline are not
unique to this program. However, the section 403 program complicates these limitations further, as
discussed below.
19
-------
Implications
Table 6. Estimated Number of Point Source Discharges to Estuarine Waters
Region
1
2a
3
4
6b
9
10
Total
Major
486
406
271
532
545
166
203
2,609
Minor
1,833
2,030
2,459
2,337
5,945
1,102
.1.599
17,305
Total
2,319
2,436
2,730
2,869
6,490
1,268
1,802
19,914
•NCPDI does not report discharges for the U.S. Virgin Islands or Puerto Rico.
bNCPDI does not report discharges for Guam, American Samoa, the Commonwealth of the Northern Marianas, or Palau.
Table 7. Industrial Categories of Concern8
Inorganic chemical products
Machinery
Metal finishing
Organic chemical products
Pesticide products
Petroleum refining
Pharmaceuticals
Phosphatic fertilizers
Primary nonferrous metals
Pulp and paper
Shipbuilding/machinery
Steam electric/recycled cooling
1 This list of industrial categories of concern was developed based on an assessment of the National Oceanic and
Atmospheric Administration's National Coastal Pollutant Discharge Inventory (NCPDI). The industrial categories of
concern are those which were identified in the NCPDI as having relatively high concentrations of priority pollutants
and which have the largest number of facilities discharging greater than 1.0 MOD of effluent to near coastal waters.
20
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Section 403 Report to Congress: Phase II
1
s
s
8
21
-------
Implications
Section 403 stresses the assessment of the impact of a marine (estuarine) discharge both on the
biological community in the area of the discharge and on surrounding biological communities.
There are currently significant scientific limitations to addressing the complex issues of biological
impacts and toxicity assessments in the marine environment. This problem is further complicated in
tidal areas inside the baseline where environmental conditions can range from marine to estuarine to
tidal freshwater. In each of these environments the physical/chemical/biological characteristics are
different, and thus the assessment of biological impacts required under section 403 may require
different sampling and analytical procedures, even within the same waterbody. Protocols will need
to be developed to measure complex effluent toxicity, ambient toxicity, and biological community
response for marine/estuarine and tidal freshwater environments and to predict the consequence of
specific pollutant mixtures on the more biologically complex marine/estuarine population and
community levels. Procedural and technical guidance will need to be developed to assist the EPA
Regional offices and States in developing effects-based monitoring programs and discharge criteria
evaluations that can reasonably assess environmental conditions and predict environmental impacts
in such complex and diverse systems.
There are other complicating factors in assessing the direct impacts of discharges to estuarine
waters. Coastal areas are generally the most populous areas in the country and as a result are
subject to stress from numerous pollutant sources. Several point source discharges occurring in the
same area make it difficult to determine a direct cause-and-effect relationship for a specific point
source. Significant nonpoint source and atmospheric contributions of pollutants to a waterbody also
make it difficult to establish a cause-and-effect relationship. In addition, estuaries are often the
repository for contaminant-laden suspended solids from upstream sources, which tend to accumulate
(along with historic, in-place contaminants) in the benthic sediment, further complicating an
evaluation of any single discharge.
Resource Requirements. The resource-intensive nature of the section 403 program is one of the
major constraints to implementing the program inside the baseline. EPA akeady identified the costs
associated with implementing section 403 in marine waters as a concern in the Phase I Report to
Congress. Because of the number of discharges that could potentially be affected, the costs
associated with implementing section 403 inside the baseline would be substantially higher than
those required to implement section 403 in marine waters alone. Figure 1 illustrates the current
annual costs for implementing the 403 program for major direct marine discharges and the potential
additional annual costs that could be incurred by EPA and NPDES-authorized States should
compliance with section 403 be required of all major estuarine dischargers in the industrial
categories of concern and POTWs.
The costs presented in Figure 1 have been broken down into those costs associated with issuing a
typical water quality-based permit and those additional costs that would be associated with the
added requirements of section 403. It should be noted that the water quality-based costs illustrated
in Figure 1 represent only the costs required to write a water quality-based permit. All other costs,
including those required for performing section 403-type reviews (i.e., the equivalent of an ODCE),
22
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Section 403 Report to Congress: Phase II
1403 costs only
IWQ-based costs only
EPA States
Current
EPA States
1993-1996*
Note: Current program costs are based on 21 permits in delegated States per year
and 15 permits in nondelegated States per year. 1993-1996 costs are based on
225 permits in delegated States per year and 173 permits in nondelegated
States per year.
* Includes costs for estuarine discharges only.
Figure 1. Estimated annual costs for EPA and NPDES-authorized States to implement requirements of
section 403 inside the baseline.
for litigation, for analyzing monitoring data at the Regional or State level, and for EPA to monitor
and provide guidance for State activities where States are the approved NPDES permitting authority,
have been assigned as costs associated with section 403. The section 403-related costs presented in
Figure 1 also include considerable program development and implementation costs that would be
required should the section 403 program be implemented for discharges in estuarine waters. It
should also be noted that in estimating the section 403 cosits associated with implementing the
program inside the baseline, it was assumed that all major dischargers would be required to conduct
some form of ambient monitoring. In all likelihood, ambient monitoring would be required of only
a portion of all major dischargers. The actual number of major dischargers that would be required
to conduct ambient monitoring would be dependent on site-specific considerations such as effluent
23
-------
Implications
characteristics, the water quality of the receiving stream, the presence of sensitive aquatic habitats,
and other factors. For these reasons, the section 403-related costs illustrated in Figure 1 represent a
conservative estimate.
Section 403 annual costs of implementation are estimated .to be considerably greater than costs
associated with implementation of the water quality-based permitting program alone, due primarily
to the costs to the permitting authority associated with conducting Ocean Discharge Criteria
Evaluations and reviewing ambient monitoring data. Both of these activities are labor-intensive and
are normally not required under a typical NPDES permit. They are also two of the requirements of
section 403 that generate the considerable amount of environmental data that allow permit writers to
make more informed decisions concerning the impacts of marine/estuarine discharges. It should be
emphasized that the costs associated with reviewing section 403 monitoring data for estuarine
discharges would be significant, not only because of the potentially large number of discharges that
would be affected, but also because of the need to be able to distinguish between the overlapping
effects of multiple discharges to estuarine waters. Based on the review of such monitoring data, the
permitting authority would have to be able to establish a cause-and-effect relationship for observed
impacts in order to properly establish permit limitations for the responsible dischargers). Such an
assessment would require considerable time and resources.
Other Considerations. In addition to EPA and the NPDES-authorized States, considerable costs
could be incurred by industries and municipalities should the provisions of section 403 be required
of estuarine discharges. These costs would be associated with the resources that would be needed
by some individual dischargers to design and implement ambient monitoring programs that normally
are not included as conditions of NPDES permits. The costs incurred by estuarine dischargers as a
result of the implementation of section 403 inside the baseline would depend on the number of
dischargers required to conduct ambient monitoring and the site-specific monitoring requirements
made in individual permits.
Also, although an existing data management system, such as the Ocean Discharge Evaluation
System (ODES), could be used to store the enormous amount of environmental data that could
potentially be generated should section 403 be implemented inside the baseline, considerable time
and effort would still be required to maintain and evaluate such a large data base. In addition,
committing the considerable resources that would be required to implement section 403 inside the
baseline could potentially result in fewer available resources for other EPA and State programs.
The length of time that would be required to evaluate the considerable amount of environmental
data required under section 403 may also result in significant increases in backlogs and delays in
permit reissuance. However, potentially significant delays also result from the need to review other
data and issues for permit issuance, such as effluent, whole effluent toxicity, ambient water quality
monitoring data, endangered species impacts, and conflicts with State water quality standards.
These are not always issues unique to a section 403 review and are needed to make a
comprehensive evaluation of the permit application. Such delays could have significant adverse
24
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Section 403 Report to Congress: Phase II
environmental consequences resulting from inadequately regulated estuarine discharges that are
awaiting permit renewal decisions.
Congress did not specifically mention stormwater discharges in its request for information on
estuarine point source discharges; however, in addition to industrial and municipal point source
discharges, stormwater discharges are now regulated under the NPDES permitting program. It is
therefore not clear whether Congress is considering the requirement that stormwater discharges to
estuarine waters also comply with the provisions of section 403. Many thousands of stormwater
sewers discharge to coastal areas. These point sources contribute significant pollutant loads to
estuarine systems and can be a major contributor to environmental degradation. If full
implementation of section 403 in estuarine waters is adopted by Congress, and if stormwater
discharges are included under this section 403 program, the difficulties of managing the program
and associated costs will increase significantly. Stormwater discharges were not considered in
developing the cost estimates presented above. How to dsal with stormwater discharges may be a
significant problem if and when the section 403 program is implemented in estuaries.
Recommended Applications
Based on an evaluation of the potential benefits and problems associated with implementing the
requirements of section 403 inside the baseline, it is apparent that it is neither necessary nor
reasonable to require all estuarine discharges to fulfill the requirements of section 403. It is also
apparent, however, that under certain circumstances the application of section 403 could generate
additional valuable information about discharge impacts on receiving environments that would
typically not be generated using other NPDES permitting approaches (e.g., technology-based, water
quality-based). Section 403 could be used as an effective supplement to the water quality-based
program for estuarine discharges in the following situations:
• When water quality standards that are applied to large segments of waterbodies may not be
adequately protective of particularly sensitive habitats (e.g., coral reefs, shellfish beds) that
may be present.
• When it is believed that an alternative discharge assessment could identify a less
environmentally damaging discharge alternative.
• When State water quality standards do not exist for pollutants of concern.
• In other special circumstances where the permit writer does not feel sufficient information
exists to make the appropriate permitting decision as stated in EPA's current regulations (40
CFR Part 125, Subpart M).
25
-------
Implications
In. such situations, the information generated under section 403 could improve the permitting
authority's ability to make informed decisions during the permit review process concerning the
potential environmental impacts of an estuarine discharge.
26
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Section 403 Report to Congress: Phase II
4. FINDINGS
Based on EPA's evaluation of estuarine discharges and pollutants of concern for estuarine waters
and its assessment of the implications of requiring implementation of section 403 for such
discharges, the Agency has developed the following findings:
• Implementing section 403 for all estuarine discharges on a broad-scale basis is not
necessary or advisable. In the majority of cases, the water quality-based approach to
permitting is sufficient to protect estuarine environments from unreasonable degradation due
to effluent discharges. The limits of scientific information to address the Ocean Discharge
Criteria restrict EPA's ability to fully implement section 403 inside the baseline. The costs
to industry and municipalities associated with requiring all estuarine dischargers to conduct
section 403-type assessments and the costs to EPA and ^DBS-authorized States to review
the information generated by these assessments could be disproportionately large compared
to the environmental benefits that would be derived.
• If Congress mandates the implementation of section 403 for estuarine discharges, EPA
should be given authority to implement the program on a discretionary basis. In certain
circumstances, the requirements of section 403 could be used to focus environmental impact
assessments on estuarine and other sensitive habitats that may not be fully protected by the,
water quality standards regulations of section 402 by making it easier to require certain
types of information (e.g., monitoring data) from dischargers and by requiring an alternative
discharge evaluation as stated in EPA's current regulation (40 CFR, Part 125, subpart M).
Such circumstances would include (1) when less environmentally damaging alternatives to
direct effluent discharge may be available; (2) when impacts may occur due to pollutants for
which no water quality standards exist; and (3) any other circumstance where the permit
writer does not believe sufficient information is available to make an informed decision
concerning a discharge's potential impact on ecologically sensitive habitats or resources
(e.g., coral reefs, shellfish beds).
• As an alternative approach to extending section 403 authority, section 402 could be
amended to specifically require assessments similar to those required under section 403 for
select estuarine discharges of concern. Either approach would achieve the same end result,
the requirement for additional environmental assessments for those discharges of greatest
concern in estuarine waters.
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Section 403 Report to Congress: Phase II
REFERENCES CITED
USEPA. 1990a. Draft report on near coastal waters dischargers. U.S. Environmental Protection
Agency, Office of Marine and Estuarine Protection, Washington, DC.
USEPA. 1990b. Report to Congress on implementation of section 403(c) of the Federal Water
Pollution Control Act. U.S. Environmental Protection Agency, Office of Marine and Estuarine
Protection, Washington, DC.
USEPA. 1991. Technical support document for water quality-based toxics control EPA/505/2-
90-001. U.S. Environmental Protection Agency, Washington, DC.
USEPA. 1993. Regulatory impact analysis of effluent limitation guidelines for offshore oil and
gas facilities. U.S. Environmental Protection Agency, Office of Science and Technology,
Washington, DC
ADDITIONAL REFERENCES
API. 1988. Basic petroleum data book. American Petroleum Institute, Washington, DC.
Burns and Roe. 1980. Assessment of existing data for the offshore oil and gas extraction industry.
Prepared for U.S. Environmental Protection Agency, Washington, DC.
ERG. 1988. Economic impact analysis of effluent limitations guidelines and standards for the
notice of data availability for drilling fluids and drill cuttings for the offshore oil and gas
industry. Prepared for U.S. Environmental Protection Agency, Office of Water. Eastern
Research Group, Inc., Arlington, VA.
JRB Associates. 1984. Preliminary ocean discharge criteria evaluation—South and Central
California, for NPDES Permit No. CA0110516. Prepared for U.S. Environmental Protection
Agency, Office of Water Enforcement and Permits, Washington, DC. JRB Associates,
Bellevue, WA.
NAS. 1983. Drilling discharges in the marine environment. National Academy of Science.
National Academy Press, Washington, DC.
NOAA. 1987. The national coastal pollutant discharge inventory—Pollutant discharge
concentrations for industrial point sources. National Oceanic and Atmospheric Administration,
Rockville, MD.
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References
Tetra Tech. 1989. Amended section 301(h) technical support document. Draft report prepared by
Tetra Tech, Inc., under EPA Contract No. 68-C8-0001. April 1989.
USEPA. 1982. Bioaccumulation monitoring guidance: 1. Estimating the potential for
bioaccumulation of priority pollutants and 301(h) pesticides discharged into marine and
estuarine -waters. EPA-430/9-86-005. U.S. Environmental Protection Agency, Washington, DC.
USEPA. 1982. Data from verification study of produced water discharges from thirty offshore
platforms in the Gulf of Mexico. U.S. Environmental Protection Agency, Effluent Guidelines
Division, Washington, DC.
USEPA. 1982. Design of301(h) monitoring programs for municipal wastewater discharges to
marine waters. EPA-430/9-82-010. U.S. Environmental Protection Agency, Washington, DC.
USEPA. 1982. Revised section 301(h) technical support document. EPA-430/9-82-011. U.S.
Environmental Protection Agency, Washington, DC.
USEPA. 1985. Methods for measuring the acute toxicity of effluents to freshwater and marine
organisms. EPA 600/4-85-013. U.S. Environmental Protection Agency, Washington, DC!.
March.
USEPA. 1985. Short-term methods for estimating the chronic toxicity of effluents and receiving
•waters to freshwater organisms. EPA 600/4-85-014. U.S. Environmental Protection Agency,
Washington, DC. December.
USEPA. 1985. Technical support document for water quality-based toxics control. EPA 440/4-
85-032. U.S. Environmental Protection Agency, Washington, DC. September.
USEPA. 1987. Framework for 301(h) monitoring programs. EPA-430/09-88-002 .U.S.
Environmental Protection Agency, Washington, DC.
USEPA. 1987. Permit writer's guide to water quality-based permitting for toxic pollutants. EPA
440/4-87-005. U.S. Environmental Protection Agency, Washington, DC. July.
USEPA. 1987. Quality assurance and quality control (QA/QC) procedures for 301(h) monitoring
programs: Guidance on field and laboratory methods. EPA-430/9-86-004.U.S.
Environmental Protection Agency, Washington, DC.
USEPA. 1988. Short-term methods for estimating the chronic toxicity of effluents and receiving
waters to marine and estuarine organisms. EPA 600/4-87-028. U.S. Environmental Protection
Agency, Washington, DC. 600/4-87-028. May 1988.
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Section 403 Report to Congress: Phase II
USEPA. 1988. Spreadsheets for offshore oil and gas extraction recosted proposal option, drill
cuttings BAT/NSPS least cost determination. U.S. Environmental Protection Agency, Industrial
Technology Division, Washington, DC.
USEPA. 1988. Spreadsheets for offshore oil and gas extraction recosted proposal option, drilling
fluids BAT/NSPS least cost determination. U.S. Environmental Protection Agency, Industrial
Technology Division, Washington, DC.
Walk, Haydel and Associates. 1984. Potential impact of proposed EPA BAT/NSPS standards for
produced water discharges from offshore oil and gas extraction industry. Prepared for the
Offshore Operators Committee. Walk, Haydel and Associates, Inc., New Orleans, LA.
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Section 403 Report to Congress: Phase II
GLOSSARY
Acute - involving a stimulus severe enough to rapidly induce a response; in marine and aquatic
toxicity tests, a response observed in 96 hours or less typically is considered acute. An acute
effect is not always a measure of lethality; it can measure a variety of effects. Note that acute
means "short," not fatal.
Alternative assessment - an assessment of the relative impacts (economic, social, and
environmental) of on-site effluent discharge versus discharge to an alternative site, land disposal,
or another waste disposal alternative.
Baseline - the landward boundary of the territorial seas.
Bioaccumulation - uptake and retention of substances by an organism from its surrounding medium
and from food.
Bioassay - a test used to evaluate the relative potency of a substance by comparing its effect on a
living organism with the effect of a standard preparation on the same type of organism.
Biochemical oxygen demand (BOD) - a laboratory measurement of the "strength" or potency of an
organic or inorganic waste. BOD values reflect the effect the waste may have on fish or other
aquatic organisms that require oxygen to live.
Bioconcentration - uptake of substances from the surrounding medium through gill membranes or
other external body surfaces.
Chronic - involving a stimulus that lingers or continues for a relatively long period of time, often
one-tenth of the life span or more. Chronic should be considered a relative term depending on
the life span of an organism. A chronic effect can be lethality, growth, reduced reproduction,
etc. Chronic means "long-term."
Contiguous zone - defined in section 502(9) of the Clean Water Act to be the entire zone
established or to be established by the United States under Article 24 of the Convention of the
Territorial Sea and the Contiguous Zone.
Effluent biomonitoring - the measurement of the biological effects of effluents (such as toxicity,
biostimulation, and bioaccumulation).
Effluent discharge (or discharge) - wastewater as it leaves some type of treatment system or
facility, such as septic tank effluent or municipal or industrial wastewater treatment plant
effluent.
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Glossary
Effluent limitation - any restriction on quantities, rates, or concentrations of chemical, physical,
biological, and other constituents that are discharged from point sources into waters of the
United States, including navigable waters of the contiguous zone or the ocean.
Estuarine waters - deepwater tidal habitats and tidal wetlands that are usually enclosed by land but
have access to the ocean and are at least occasionally diluted by freshwater runoff from the land
(bays, mouths of rivers, salt marshes, lagoons).
Estuary - area where fresh water meets salt water (bay, mouth of a river, salt marsh, lagoon).
In situ - in the natural or original position.
Irreparable harm - significant undesirable effects occurring after the date of permit issuance that
will not be reversed after cessation or modification of the discharge. (40 CFR 125.121(a))
Marine environment - the territorial seas, the contiguous zone, and the oceans.
Mixing zone - an allocated impact zone where acute and chronic water quality criteria can be
exceeded as long as a number of provisions are maintained. A mixing zone can be thought of
as a limited area or volume where the initial dilution of a discharge occurs.
National Pollutant Discharge Elimination System (NPDES) - the national program for issuing,
modifying, revoking and reissuing, terminating, monitoring, and enforcing permits, and imposing
and enforcing pretreatment requirements, under sections 301, 303, 307, 318, 402, 403, and 405
of the Clean Water Act.
Nonpoint source pollution - any source of water pollution that does not meet the legal definition
of "point source" in section 502(14) of the Clean Water Act.
Ocean Discharge Criteria Evaluation - procedure required as part of section 403 permitting
decision process; includes consideration of 10 established ocean discharge criteria during permit
review; provides a tool for determining unreasonable degradation and irreparable harm.
Ocean Discharge Guidelines - ten narrative guidelines listed at 40 CFR Part 125.122 of the Ocean
Discharge Criteria Regulations for determination of unreasonable degradation of the marine
environment.
Ocean Discharge Requirements - seven narrative requirements listed at section 403(c)(l)(A)-(G)
of the Clean Water Act for determination of the degradation of the marine environment.
pH - a measure to indicate an acid or alkaline condition.
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Section 403 Report to Congress: Phase II
Point source pollution - generally defined as pollution of ground water or surface water supplies
from a discrete conveyance such as a pipe or facility. Discharges of treated wastewater from
municipal and industrial treatment plants or oil and gas platforms are examples of point sources
of pollution.
Pollution prevention - a form of pollution control designed to reduce the quantities of pollutants
requiring disposal through process modification and recycling as opposed to end-of-pipe
controls.
Pretreatment - 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 other means, except
as prohibited by 40 CFR Part 403.
Publicly-owned treatment works (POTW) - a treatment works, as defined in section 212(2) of the
Clean Water Act, that is owned by a State, municipality, or intermunicipal or interstate agency.
Secondary treatment - the level of effluent quality defined in 40 CFR Part 133. Such biological
(e.g., activated sludge) and/or physical-chemical treatment is designed to reduce the
concentrations of dissolved and colloidal organic matter in wastewater that were not removed to
any significant degree during primary treatment.
State waters - waters included within the boundary of a State and the territorial sea
Stormwater discharge - precipitation that does not infiltrate the ground or evaporate due to
impervious land surfaces but instead flows onto adjacent land or water areas and is routed into
drain/sewer systems.
Technology-based treatment requirements - NPDES permit requirements based on the application
of pollution treatment or control technologies including (under 40 CFR Part 125) BPT (best
practicable technology), BCT (best conventional technology and secondary treatment for
POTWs), BAT (best available technology economically achievable), and BADCT (best available
demonstrated control technology) applicable to NSPS (new source performance standards).
Territorial seas - defined hi section 502(a) of the Clean Water Act to be the belt of the seas
measured from the line of ordinary low water along that point of the coast which is in direct
contact with the open sea line marking the seaward limit of inland waters, or extending seaward
a distance of 3 miles.
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Glossary
Total suspended solids - a measure of the small particles of solid pollutants that float on the
surface of, or are suspended in, wastewater or waterbodies, determined by using tests for "total
suspended nonfilterable solids."
Toxicity reduction evaluation (TRE) - a study conducted to determine the source(s) of toxicity in
a discharge effluent so that these sources can be controlled sufficiently to allow a discharger to
comply with their permit limits.
Toxicity test - the means to determine the toxicity of a chemical or an effluent using living
organisms. A toxicity test measures the degree of response of an exposed test organism to a
specific chemical or effluent.
Unreasonable degradation - significant adverse changes in ecosystem diversity, productivity, and
stability of the biological community within the area of discharge and surrounding biological
communities; threat to human health through direct exposure to pollutants or through
consumption of exposed aquatic organisms; loss of aesthetic, recreational, scientific, or economic
value that is unreasonable in relation to the benefit derived from the discharge. (40 CFR
125.121(0))
Water quality-based toxics control - an integrated strategy used in NPDES permitting to assess
and control the discharge of toxic pollutants to surface waters: the whole-effluent approach
involving the use of toxicity tests to measure discharge toxicity and the chemical-specific
approach involving the use of water quality criteria or State standards to limit specific toxic
pollutants directly.
Water quality criteria - scientifically derived ambient limits developed and updated by EPA, under
section 304(a)(l) of the dean Water Act, for specific pollutants of concern. Criteria are
recommended concentrations, levels, or narrative statements that should not be exceeded ki a
waterbody in order to protect aquatic life or human health.
Water quality standards - laws or regulations, promulgated under section 303 of the Clean Water
Act, that consist of the designated use or uses of a waterbody or a segment of a waterbody and
the water quality criteria that are necessary to protect the use or uses of that particular
waterbody. Water quality standards also contain an antidegradation statement. Every State is
required to develop water quality standards applicable to the various waterbodies within the
State and revise them every 3 years.
Whole-effluent toxicity - the aggregate toxic effect of an effluent measured directly by a toxicity
test
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Section 403 Report to Congress: Phase II
ACRONYMS
BOD Biochemical oxygen demand
EPA United States Environmental Protection Agency (also referred to as the Agency)
CWA dean Water Act
CZMP Coastal Zone Management Plan
FWPCA Federal Water Pollution Control Act (now amended and commonly known as the
CWA)
NCPDI National Coastal Pollutant Discharge Inventory
NOAA National Oceanic and Atmospheric Administration
NPDES National Pollutant Discharge Elimination Sjrstem
ODCE Ocean Discharge Criteria Evaluation
ODES Ocean Discharge Evaluation System
PCS Permit Compaiance System
POTW Publicly Owned Treatment Works
TRE Toxiciry Reduction Evaluation
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