Tuesday
August 9, 1994
f
Part II
Environmental
Protection Agency
40 CFR Part 125
Discharges Into Marine Waters;
Modification of Secondary Treatment
Requirements; Final Rule
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40642 Federal Register / Vol. 59, No. 152 / Tuesday, August 9, 1994 / Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 125
[FRL-5025-7J
Modification of Secondary Treatment
Requirements for Discharges Into
Marine Waters
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Final rule.
SUMMARY: EPA is promulgating final
amendments to the regulations
contained in 40 CFR part 125, subpart
G, which implement section 301th) 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)(l)(B) of the
Clean Water Act of 1972 (hereinafter
CWA or Act) (33 U.S.C. § 1311(b)(l)(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)(l)(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)(l)(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)(l) 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
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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 Us 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 tune 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)(l) 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)(l) 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 § 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 § 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
§ 125.59(f)(3)(ii). EPA received a
comment asking that this section be
clarified. The commenter stated that
because § 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 § 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
§ 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 § 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 § 125.63 (a)(l) and (d)(2) in order to
ensure that applicants provide data on
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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 § 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 hi the
Appendix to these regulations. These
changes address amendments made in
TABLE 1
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
(§§125.56,125.57,125.61,125.64,
125.66-125.68) remain unchanged from
the 1991 proposal.
Final sub-
part G
Contents
Changes from 1991 Proposal
125.56
125.57
125.58
125.59
125.60
125.61
125.62
125.63
125.64
125.65
125.66
125.67
125.68
Appendix
Scope and Purpose
Law governing issuance of a modified permit.
Definitions
General
Primary or equivalent treatment requirements
Existence of and compliance with applicable water quality standards
Attainment or maintenance of water quality 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.
Establishment of a monitoring program
Effect of discharge on other point and nonpoint sources
Urban area pretreatment program
Toxics control program
Increase in effluent volume or amount of pollutants discharged
Special conditions for section 301 (h) modified permits .-.
Applicant questionnaire for modification of secondary treatment requirements
Unchanged.
Unchanged.
Clarified ocean water definition.
Clarified requirements for compliance
schedules.
Change to BOD removal averaging pe-
riod under certain circumstances.
Unchanged.
Change to mixing zone provisions.
Monitoring provisions regarding primary
treatment compliance added.
Unchanged.
Clarifying language added.
Unchanged.
Unchanged.
Unchanged.
Conforming and Organizational changes
made.
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 30i(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)
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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 he 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
§ 125.58(r). However, as discussed
below in the section-by-section analysis
for § 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
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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 § 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 § 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.
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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
§ 125.62(a), primary or equivalent
treatment program requirements
(§ 125.60) and urban area pretreatment
program requirements (§ 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
§ 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 § 125.59(fJ(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 § 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 § 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
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40648 Federal Register / Vol. 59, No. 152 / Tuesday, August 9, 1994 / Rules and Regulations
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
§ 125.59(g)(l) (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 § 125.59(h)
creates an ambiguity regarding the
permissible scope of the schedules for
meeting 301(h) requirements. Section
§ 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 § 125.59(f)(3)(ii),
which refers only to schedules of
compliance with § 125.60 (primary or
equivalent treatment) and § 125.65
(urban area pretreatment).
EPA agrees with the commenter and
is clarifying § 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 §§ 125.60 and 125.65.
The Agency's intent was that the
limitations of § 125.59(f)(3)(ii) apply
only to compliance schedules for
meeting the §§ 125.60 and 125.65
requirements. Therefore, we are adding
a phrase to § 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 § 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 § 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 § 125.59(d)(l)
and (d)(2). Applicants who are
authorized or requested to submit
additional information under § 125.59(g)
may still do so.
Section 125.60: The proposal added
§ 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 § 125.58.
Proposed § 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
§ 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:
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• 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,
wiux 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)(l) water quality criteria, EPA
proposed language at § 125.62(a)(l)(i)-
(iii) and 125.62(a)(2) and (3) to
implement that additional requirement.
The proposal also amended § 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.
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Water Quality Criteria
Under the proposal to implement the
WQA requirement that discharges meet
EPA section 304(a)(l) 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)(l)
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)(l) 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)(l) 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)(l) 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)(l) 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)(l)
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)(l) 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)(l) water quality criteria,
the final rule requires compliance with
the section 304(a)(l) water quality
criteria.
For carcinogens, the EPA section
304(a)(l) 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
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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)(l) 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
§ 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 correspondin,
State standard for any section 304(a)(l
criterion later established.
EPA believes that the carcinogenic
risk provisions of proposed
§ 125.62(a)(2)(ii) are consistent with the
National Toxics Rule, 40 CFR § 131.36,
and the guidance provided in the
preamble to the rule (57 FR 60848).
Accordingly, today's rule at
§ 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)(l) 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 § 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
§ 125.62(a)(l)(i) to implement the
requirement of new section 301(h)(9) to
comply with the section 304(a)(l) 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)(l) 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, § 125.62(a)(l) 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
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ZID size and the actual definition of the
ZID as contained in § 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 § 125.62(f) to
clarify this point. Proposed § 125.62(f)
requires an applicant to demonstrate
that its modified discharge meets
§ 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 oh
301(h) modified discharges to stressed
saline estuaries. One commenter on
§ 125.62(f) (1) through (3) (the "stressed
waters test") requested that EPA state
that an applicant can still make the
demonstration required by § 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
§ 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 § 125.59(b)(4),
and making conforming changes to
§ 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 § 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 30i(h)(2)
by showing that their discharges will
not "interfere, alone or in combination,"
with certain water quality objectives.
EPA continues to believe that § 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
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to ensure compliance with water quality
criteria (if applicable under § 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 § 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 § 125.60
(i.e., monthly, unless a less frequent
monitoring period is specified).
Although already required in
§ 125.60(b), to clarify this point the final
rule adds a new paragraph,
§ 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 § 125.63(a)(l)(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
§ 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 § 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 § 125.65 and added
or revised certain definitions in
§ 125.58. Proposed § 125.65(a)(2)
clarified that the requirements of
§ 125.65 are to apply in addition to any
applicable pretreatment requirements
contained in 40 CFR part 403 and that
nothing in § 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,
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40654 Federal Register / Vol. 59, No. 152 / Tuesday, August 9, 1994 / Rules and Regulations
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 § 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 § 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
§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
§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 § 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 § 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 § 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 § 125.62 from § 125.65
(c)(l) (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
pr-etreatment 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 § 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
£>lir may be used, as a basis tor setting
a local limit.
Because the regulations already
require compliance with § 125.62, and
in light of the concerns raised over
linkage of local limits to the § 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.
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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 § 125.66;
(2) The applicant must conduct
representative sampling and analysis of
the POTW's influent, effluent, and
sludge for toxic pollutants;
(3jThe 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 n'ot
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(10(6) and § 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 § 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 § 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,
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40656 Federal Register / Vol. 59, No. 152 / Tuesday, August 9, 1994 / Rules and Regulations
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 § 125.65, it will be in
compliance with § 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
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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 § 125.66 (c)(l))
regarding deadlines by which applicants
were required to develop approved
prelreatment 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 § 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
§ 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 § 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
§ 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).
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40658 Federal Register / Vol. 59, No. 152 / Tuesday, August 9, 1994 / Rules and Regulations
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 \ 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.
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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
§ 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 30l(h)
modified permit").
§ 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)(l)(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)(l) 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)(l)(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)(l) of the Clean
Water Act provides that:
Any application filed under this section for
a modification of the provisions of—
(A) subsection (b)(l)(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)(l)(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.
§125.58 Definitions.
For the purpose of this subpart:
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(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 30i(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.
ff) 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:
(i) 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.
(1) 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)(l) 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.
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(dd) Zone of initial dilution (ZED)
means the region of initial mixing
surrounding or adjacent to the end of
the outfall pipe or diffuser ports,
provided that the ZDD may not be larger
than allowed by mixing zone
restrictions in applicable water quality
standards.
§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:
(l) 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,
m;
(2) A completed Application
Questionnaire;
(3) The certification in accordance
with 40 CFR 122.22(d);
(4) In addition to the requirements of
§ 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 § 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 § 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 § 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 § 125.59(g) may
submit a revised application in
accordance with § 125.59(fJ(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 § 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 §§ 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 §§ 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
§§ 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 § 125.60: (A)
A description of the proposed treatment
system which upgrades treatment to
satisfy the requirements of § 125.60.
(B) A project plan, including a
schedule for data collection and for
achieving compliance with § 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 § 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 § 125.65: (A)
A determination of what approach will
be used to achieve compliance with
§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 § 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 §§ 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
§ 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
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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
§§ 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 § 125.59 (d)(l) 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
§ 125.59(f)(l) 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 § 125.59(d)(3) must
submit the revised application as
described for new applications in
§ 125.59(f)(l) concurrent with
submission of the additional
information under § 125.59(g).
(3) Deadline for additional
information to demonstrate compliance
with §§ 125.60 and 125.65.
(i) A letter of intent required under
§ 125.59(e)(l) 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
§ 125.59(e)(l), further EPA proceedings
on the tentative decision under 40 CFR
part 124 will be stayed.
(ii) The project plan submitted under
§ 125.59(e)(l) shall ensure that the
applicant meets all the requirements of
§§ 125.60 and 125.65 by the following
deadlines:
(A) By August 9,1996 for applicants
that are not grandfathered under
§ 125.59(j).
(B) At the time of permit renewal or
by August 9,1996, whichever is later,
for applicants that are grandfathered
under § 125.59(j).
(4) State determination deadline.
State determinations, as required by
§§ 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)(l) 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 §§ 125.60 and 125.65,
such schedule shall be in accordance
with § 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 §§ 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 § 124.54
or if the State denies certification/
concurrence pursuant to § 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 §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 § 125.60, the
water quality criteria provisions of
§ 125.62(a)(l), or § 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
§§ 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.
§ 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.
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(c)(l) An applicant may request that
the demonstration of compliance with
the requirement under § 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)(l) 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.
§ 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 staiidard(s); and
(2) Provide a determination signed by
the State or interstate agency(s)
authorized to provide certification
under §§ 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.
§ 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)(l)(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)(l) (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)(l)(ii) of this section as to compliance
with applicable section 304(a)(l) 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)(l) 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)(l) 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 riskjevel
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 3~04(a)(l)
water quality criteria documents as
protective against the potential toxicity
of the contaminant through ingestion of
contaminated aquatic organisms.
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40664 Federal Register / Vol. 59, No. 152 / Tuesday, August 9, 1994 / Rules and Regulations
(3) The requirements of paragraphs
(a)(l) and (a)(2) of this section apply in
addition to, and do not waive or
substitute for, the requirements of
§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 migrator}' 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 flo%v 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.
§ 125.63 Establishment of a monitoring
program.
(a) General requirements. (I) 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;
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Federal Register / Vol. 59. No. 152 / Tuesday. August 9. 1994 / Rules and Regulations 40665
(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)(l) (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 § 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 § 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 § 125.62(c) will be met.
(c) Wafer 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
§ 125.62(a)(l);
(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 § 125.60.
§ 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.
§ 125.65 Urban area pretreatment program.
(a) Scope and applicability. (I) 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)(l)(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)(l)(i)
and (c)(l) 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
§ 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
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40666 Federal Register / Vol. 59, No. 152 / Tuesday, August 9, 1994 / Rules and Regulations
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.
§ 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 § 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 § 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.
§ 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.
§ 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 § 125.66(c);
(2) Nonindustrial toxics control
program required by § 125.66(d); and
(3) Control of combined sewer
overflows required by § 125.67.
(c) Monitoring program requirements
that include:
(1) Biomonitoring requirements of
§125.63(b);
(2) Water quality requirements of
§125.63(c);
(3) Effluent monitoring requirements
of §§ 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)
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Federal Register / Vol. 59, No. 152 / Tuesday. August 9, 1994 / Rules and Regulations 40667
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 hi 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 hi
the most efficient matter.
4. The notation (L) means large applicants
must respond to the question, and (S) means
small applicants must respond.
n. 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)J
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 (BODs),
suspended solids, and pH upon which your
application for a modification is based:
—BODs 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 (mVsec):
«minimum
—average dry weather
—average wet weather
—maximum
—annual average
BODs (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)(l) 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
BOD* 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)(l)]
—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 (mVsec)
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 of
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) modifie'd 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 (°C)
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Federal Register / Vol. 59, No. 152 / Tuesday, August 9, 1994 / Rules and Regulations
—Salinity (ppt)
—Transparency (turbidity, percent light
transmittance)
—Other significant variables (e.g., nutrients,
304(a)(l) criteria and toxic pollutants and
pesticides, fecal coliforra 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)(l)]
—Dissolved oxygen (mg/L)
—Suspended solids (mg/L)
-pH
—Temperature (°C)
—Salinity (ppt)
—Transparency (turbidity, percent light
transmittance)
—Other significant variables (e.g., nutrients,
304(a)(l) 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)(l)].
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)(l)]
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)].
m. 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 §304(a)(l)
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)(l) 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)(l)]
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)]
\. (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)Ifyes:
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?
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Federal Register / Vol. 59, No. 152 / Tuesday, August 9, 1994 / Rules and Regulations 40669
D. Biological Impact of Discharge [40 CFR
12S.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
dlschargefs)?
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
12S.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)l
—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
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 cany 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 ctipy 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)(l). (* to the extent practicable)
d. (L,S*) Provide an analysis of known or
suspected industrial sources of toxic
pollutants and pesticides identified in (l)(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)(l)]
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
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