Modification of Secondary Treatment Requirements for Discharges Into Marine Waters

SUMMARY: EPA is promulgating final amendments to the regulations

contained in 40 CFR part 125, subpart G, which implement section 301(h)

of the Clean Water Act (``CWA'' or ``Act''), 33 U.S.C. section 1311(h).

Section 301(h) provides for modifications of secondary treatment

requirements for discharges into marine waters by publicly owned

treatment works (POTWs) that demonstrate their compliance with the

section 301(h) criteria. These regulatory revisions are being

promulgated to respond to the amendments to section 301(h) contained in

section 303 of the Water Quality Act of 1987 (``WQA'') and to reflect

program experience. These amendments revise portions of the existing

part 125, subpart G, regulations and simplify and revise the

application requirements contained in Appendices A and B of subpart G.

DATES: Effective Date: These regulations take effect on September 8,

1994.

Promulgation Date: In accordance with 40 CFR 23.2, the

Administrator's promulgation occurs at 1:00 p.m. EDT on August 23,

1994.

ADDRESSES: Copies of comments submitted and the docket for this

rulemaking are available for review at EPA's Water Docket; Room L-102,

401 M St., SW., Washington, DC 20460. For access to the Docket

materials, call (202) 260-3027 between 9 a.m. and 3:30 p.m. for an

appointment.

FOR FURTHER INFORMATION CONTACT: Virginia Fox-Norse, Oceans and Coastal

Protection Division (4504F), U.S. Environmental Protection Agency, 401

M Street, SW, Washington, DC 20460, (202) 260-8448. An amended

Technical Support Document (TSD) has been prepared to provide guidance

for preparing applications and complying with provisions of the

regulations. This amended TSD completely supersedes the 1982 revised

section 301(h) TSD, and will be available soon after these regulations

are published in the Federal Register. Requests for the amended TSD

should be made to Virginia Fox-Norse at the address given in this

section.

SUPPLEMENTARY INFORMATION:

Preamble Outline

I. Background

A. History of the section 301(h) Program

B. Water Quality Act Amendments of 1987

C. Overview of Public Comments

D. Summary of Changes Made from the 1991 Proposal

II. Section by Section Analysis

III. Supporting Documentation

A. Regulatory Flexibility Act Analysis

B. Executive Order 12291

C. Paperwork Reduction Act

I. Background

A. History of the Section 301(h) Program

Under section 301(b)(1)(B) of the Clean Water Act of 1972

(hereinafter CWA or Act) (33 U.S.C. Sec. 1311(b)(1)(B)), POTWs were

required to achieve secondary treatment by July 1, 1977. The secondary

treatment requirements establish technology-based effluent limitations

for biochemical oxygen demand (BOD), suspended solids (SS), and pH. See

40 CFR part 133. Some municipalities with POTWs that discharged into

marine waters argued that secondary treatment might not be necessary to

protect certain marine waters where deeper waters with large tides and

currents can allow for greater dilution and dispersion than discharges

into fresh waters. As a result, Congress amended the CWA in 1977 to add

section 301(h), 33 U.S.C. 1311(h), to allow the Administrator, upon

application by a POTW and with the concurrence of the State, to issue a

National Pollutant Discharge Elimination System (NPDES) permit that

modifies the secondary treatment requirements of section 301(b)(1)(B).

In order to obtain a section 301(h) waiver, the applicant must

demonstrate to the satisfaction of the Administrator that the proposed

discharge complies with a set of criteria intended to protect the

marine environment. In addition, section 301(j)(1)(A) of the Act

established a deadline for filing a section 301(h) application. EPA

regulations and an accompanying technical support document (TSD) to

implement the section 301(h) program were issued in 1979. (44 FR 34784,

June 15, 1979.)

Section 301(h) was later amended by the Municipal Wastewater

Treatment Construction Grants Amendments (MWTCGA) of 1981 (Pub. L. 97-

117, 95 Stat. 1623). The MWTCGA extended the deadline for filing

section 301(h) applications to December 29, 1982, and modified

applicant eligibility requirements. In response to the MWTCGA and

program experience, the section 301(h) regulations and the TSD were

revised in 1982. (See 47 FR 24918, June 8, 1982, and 47 FR 53666,

November 26, 1982.)

B. Water Quality Act Amendments of 1987

On February 4, 1987, Congress passed the Water Quality Act of 1987

(Pub. L. 100-4, hereinafter WQA), further amending section 301(h) of

the CWA. Section 303 of the WQA, which contains the amendments to

section 301(h), made the following changes to section 301(h) of the

CWA:

(1) The discharge of pollutants, in accordance with modified

requirements, cannot interfere, alone or in combination with pollutants

from other sources, with the attainment or maintenance of water quality

which assures the protection of the resources and uses listed in CWA

section 301(h)(2).

(2) The scope of required monitoring is limited to only those

scientific investigations necessary to study the effects of the

proposed discharge.

(3) For POTWs serving a population of 50,000 or more, with respect

to any toxic pollutant introduced by an industrial source for which

pollutant there is no applicable pretreatment requirement in effect,

the applicant must demonstrate that sources introducing waste into the

POTW are in compliance with all applicable pretreatment requirements,

the applicant will enforce those requirements, and the applicant has in

effect a pretreatment program which, in combination with the treatment

of discharges from the POTW, removes the same amount of such toxic

pollutant as would be removed if the POTW were to apply secondary

treatment and had no pretreatment program for such pollutant. (For

purposes of this preamble, this requirement will be referred to as the

``urban area pretreatment requirement'').

(4) At the time the section 301(h) modification becomes effective,

the applicant will be discharging effluent which has received at least

primary or equivalent treatment and which meets water quality criteria

established under CWA section 304(a)(1) after initial mixing in the

waters surrounding or adjacent to the point at which the effluent is

discharged. The statutory amendments define primary or equivalent

treatment as treatment by screening, sedimentation, and skimming

adequate to remove at least 30 percent each of BOD and of SS, and

disinfection, where appropriate.

(5) No modification may be issued for a discharge into marine

waters unless those waters exhibit characteristics assuring that water

providing dilution does not contain significant amounts of previously

discharged effluent from the POTW.

(6) No section 301(h) modified permit may be issued authorizing the

discharge of any pollutant into saline estuarine waters which at the

time of the application exhibit certain stressed conditions specified

in the statute, without regard to the presence or absence of a causal

relationship between those conditions and the applicant's current or

proposed discharge.

(7) No permits may be issued for section 301(h) modified discharges

into the New York Bight Apex.

(8) Any POTW that had a contractual agreement before December 31,

1982, to use an outfall operated by another POTW which has applied for

or received a section 301(h) modified permit may apply for a section

301(h) permit in its own right within 30 days of WQA enactment.

(9) Certain provisions of the WQA amendments do not apply to

applications which received final or tentative approval before

enactment of the WQA. These permits will, however, be subject to the

new section 301(h) requirements upon permit renewal.

C. Overview of Public Comments

EPA proposed regulations on January 24, 1991, responding to the

requirements of the WQA and program experience (56 FR 2814). The

preamble to the proposed regulations explains the proposed changes in

the regulations in response to the WQA. On March 7, 1991, EPA held a

public hearing in Washington, DC, to receive comment on the proposal.

The public comment period was open for 60 days and closed on March 25,

1991. Although some comments were not received until April 8, 1991, EPA

has elected to consider all comments received in developing this final

rule. EPA received both written comments and comments at the public

hearing on the proposed rule from a total of 17 commenters: eight

section 301(h) applicants, two State governments, four independent

consultants, and three environmental/public interest groups.

Although the comments received addressed many of the proposed

changes, the principal areas of concern to commenters focused on

primary or equivalent treatment requirements, urban area pretreatment,

and the water quality criteria requirements. A brief summary of the

comments on these areas is set out below, and a more detailed

discussion of all comments received is set out later in the section-by-

section analysis of this preamble.

Comments regarding primary treatment raised issues related to the

30 percent removal requirement for BOD, the cost to small communities

of complying, and the time limit to meet the primary treatment

requirement. Comments on urban area pretreatment raised issues about

use of the pilot plant approach to demonstrate secondary removal

equivalency for toxics, development of local pretreatment limits, which

pollutants are subject to this requirement, the time limit to meet this

requirement, and the cost of compliance. Comments regarding the section

304(a)(1) water quality criteria focused on setting risk levels for

carcinogens, determining mixing zones for evaluating compliance with

State water quality standards, and the role of the section 304(a)(1)

water quality criteria in cases where the State has adopted a different

water quality standard under CWA section 303.

D. Summary of Changes Made From the 1991 Proposal

For the convenience of the reader, the following discussion

provides a brief overview of the sections and subject areas in which

today's final rule makes changes from the January 24, 1991, proposal.

Table 1 of the preamble also provides a summary of those changes. A

full discussion of the changes made in the regulations and proposal is

set out later in the section-by-section analysis of today's preamble.

Today's final rule would make a clarifying change from the 1991

proposal in Sec. 125.58(n), which defines the term ``ocean waters.''

This change is intended to clarify the distinction between ``saline

estuarine waters'' and ``ocean waters,'' a distinction important to the

application of the WQA provisions prohibiting section 301(h) discharges

into stressed saline estuarine waters.

Today's final rule makes a change from the 1991 proposal in

Sec. 125.59, which addresses general application requirements. The

proposal allowed the granting of tentative approvals if the applicant

demonstrated good faith to come into compliance with all the

requirements of this subpart, based on a schedule in accordance with

Sec. 125.59(f)(3)(ii). EPA received a comment asking that this section

be clarified. The commenter stated that because Sec. 125.59(f)(3)(ii)

only applies to primary treatment and urban area pretreatment

requirements, the section could be interpreted as allowing compliance

schedules only for those requirements and not for all requirements.

Section 125.59(h) has been amended to allow compliance schedules for

all requirements.

This change merely clarifies EPA's original intent.

Today's final rule makes a change from the 1991 proposal in

Sec. 125.60, which addresses the WQA requirements for compliance with

primary or equivalent treatment. The proposal specified a monthly

averaging period for determining compliance with the 30 percent BOD

removal requirement for BOD and SS established by the WQA. In response

to comments on this issue, the final rule adds the opportunity under

certain special circumstances for applicants unable to meet the 30

percent removal requirement for BOD on the basis of a monthly average

to request a longer averaging period (up to annual) in order to provide

needed flexibility in calculating compliance. This averaging basis is

not available for those POTWs that have already shown a consistent

ability to meet the 30-percent removal requirement for BOD on a monthly

basis. Because no comments were received indicating a need for

flexibility in the monthly averaging period for determining compliance

with the 30 percent suspended solids removal requirement, this change

applies only to the BOD removal requirements.

The final rule makes a change to the proposed regulatory language

of Sec. 125.62 with regard to determining compliance with State water

quality standards. Comments were received on the issue of mixing zones,

and in evaluating these comments, EPA noted that the proposal had

inadvertently omitted language contained in the existing 1982 section

301(h) regulations on meeting applicable water quality standards at and

beyond the zone of initial dilution. The final rule promulgated today

would retain that language so that the original requirement of the 1982

regulations for meeting State water quality standards at the edge of

the zone of initial dilution remains in effect.

The final rule also makes a change from the 1991 proposal in

Sec. 125.63, which addresses section 301(h) monitoring programs. While

implied, the proposal did not include explicit regulatory language

requiring monitoring to determine compliance with the primary treatment

requirements. It also did not include, under general requirements, an

explicit requirement to have a monitoring program to demonstrate

compliance with water quality criteria as well as water quality

standards, as applicable. The final rule adds these requirements to

Sec. 125.63 (a)(1) and (d)(2) in order to ensure that applicants

provide data on their compliance with these requirements over the life

of the permit.

In addition, in response to comments, the final rule makes several

clarifying changes to Sec. 125.65, which addresses the urban area

pretreatment requirements. The changes are intended to provide

additional guidance on implementation of this section with regard to

the development of pretreatment requirements and secondary equivalency

for toxics removal.

Some conforming and organizational changes were made to the

application questionnaire contained in the Appendix to these

regulations. These changes address amendments made in the final rule

and simplify its use by applicants and the Agency to determine

compliance with the 301(h) requirements.

The remaining sections of the rule (Secs. 125.56, 125.57, 125.61,

125.64, 125.66-125.68) remain unchanged from the 1991 proposal.

Table 1

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Final subpart

G Contents Changes from 1991 Proposal

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125.56 Scope and Purpose............................. Unchanged.

125.57 Law governing issuance of a modified permit... Unchanged.

125.58 Definitions................................... Clarified ocean water definition.

125.59 General....................................... Clarified requirements for compliance schedules.

125.60 Primary or equivalent treatment requirements.. Change to BOD removal averaging period under

certain circumstances.

125.61 Existence of and compliance with applicable Unchanged.

water quality standards.

125.62 Attainment or maintenance of water quality Change to mixing zone provisions.

which assures protection of water supplies,

and the protection and propagation of a

balanced, indigenous population of shellfish,

fish and wildlife, and allows recreational

activities.

125.63 Establishment of a monitoring program......... Monitoring provisions regarding primary

treatment compliance added.

125.64 Effect of discharge on other point and Unchanged.

nonpoint sources.

125.65 Urban area pretreatment program............... Clarifying language added.

125.66 Toxics control program........................ Unchanged.

125.67 Increase in effluent volume or amount of Unchanged.

pollutants discharged.

125.68 Special conditions for section 301(h) modified Unchanged.

permits.

Appendix Applicant questionnaire for modification of Conforming and Organizational changes made.

secondary treatment requirements.

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II. Section-by-Section Analysis

This section provides a description of each section in the

regulation and discusses the public comments received. Citations to

sections of the part 125, subpart G, regulations in the discussion

below refer to the section numbers of the regulations as numbered under

today's rule.

Although portions of the section 301(h) regulations that were not

proposed for change are being reprinted with today's action, this has

been done for the convenience of the reader. EPA did not reconsider

those existing portions of the regulations and they are not subject to

challenge as part of this final rulemaking.

Section 125.56: This section establishes the general scope and

purpose of the regulations. EPA did not propose to revise this section,

and no comments were received. This section remains unchanged.

Section 125.57: This section sets forth the statutory language

applicable to section 301(h) modified permits. No comments were

received, and this section remains unchanged from the proposed rule.

Section 125.58: This section sets forth the definitions applicable

to the subpart G regulations. As a result of section 303 of the WQA,

the 1991 proposal added definitions of ``primary or equivalent

treatment,'' ``pretreatment,'' ``categorical pretreatment standard,''

``secondary removal equivalency,'' ``water quality criteria,''

``permittee,'' and ``New York Bight Apex.'' In addition, the proposal

made changes to existing definitions for ``industrial source,'' ``ocean

waters,'' and ``stressed waters.'' EPA received significant comments on

two aspects of the primary or equivalent treatment requirements and the

definition of saline estuarine waters.

Definition of Primary Treatment

Section 125.58(r) of the proposed rule defined ``primary or

equivalent treatment'' as treatment by screening, sedimentation, and

skimming adequate to remove at least 30 percent of the biochemical

oxygen demanding (BOD) material and of the suspended solids (SS) in the

treatment works influent, and disinfection, where appropriate. This

definition was taken directly from the language of section 303(d) of

the WQA. The preamble to the proposed rule further explained that the

terms ``sedimentation'' and ``skimming'' could include a range of

treatment techniques such as coagulation and precipitation (physical

adjuncts to sedimentation), and flotation and subsequent removal by

skimming, in order to achieve the required 30 percent removal of BOD

and SS. (56 FR 2818). Although certain types of treatment are specified

in the statutory definition (i.e., screening, sedimentation, and

skimming), EPA believes the principal intent of the statutory

definition is to ensure compliance with the 30 percent BOD and SS

removal requirements, rather than specifying the exact methods used to

achieve such removal rates. For example, chemical addition,

coagulation, and precipitation might be necessary in addition to the

specific treatment processes listed in the definition in order to

achieve the mandated 30 percent removal, and this would be allowable.

Several commenters sought a change to the definition due to

concerns with the requirement to achieve 30 percent BOD removal. As

discussed below in more detail, the commenters' concerns centered on

the practical difficulties in achieving 30 percent BOD removal by the

physical processes of primary treatment. Some noted that from an

engineering standpoint, technologies for primary treatment are aimed at

removing solids, rather than soluble BOD.

Some commenters stated that their review of the legislative history

of the WQA amendments to section 301(h) shows that Congress did not

articulate any rationale for defining primary treatment as 30 percent

removal of BOD. The commenters argued that Congress' intent was to stop

the discharge of untreated sewage from waiver recipients. They also

pointed out that Congress defined primary treatment as consisting only

of skimming, screening, and sedimentation, and did not include more

sophisticated technologies, such as coagulation and precipitation.

Therefore, they state, EPA must adopt that literal definition and

acknowledge that skimming, screening and sedimentation might not be

enough to achieve 30 percent removal of BOD. Commenters sought a change

to the definition of primary treatment to reflect only the physical

processes and not the 30-percent removal requirements.

Another commenter disagreed and argued that the advantages of using

clear, uniform 30-percent standards in the statute and regulations are

obvious, and that the fact that these advantages and other plausible

rationales were not stated explicitly in the legislative history is

insufficient grounds for ignoring the plain and unambiguous statutory

requirements.

Some commenters noted that primary treatment generally is intended

to remove settleable solids and floating materials rather than BOD and

therefore inclusion of 30 percent BOD removal as part of the definition

of primary treatment is technically inappropriate. In support, several

commenters cited the literature of wastewater engineering and stated

that BOD reductions achieved by primary treatment are the result of

insoluble (solid form) BOD being removed along with the settleable or

floatable materials. The commenters pointed out that soluble BOD would

not be removed by the physical processes of screening, skimming, and

sedimentation, and that the BOD removal rates achievable by primary

treatment would therefore vary depending upon the relative amounts of

soluble and insoluble BOD. Commenters also cited situations where

pretreatment of discharges by industrial dischargers that removes much

of the insoluble BOD (e.g., fish processors removing settleable fish

wastes) results in a high proportion of soluble to insoluble BOD. One

commenter noted that the key statutory term in section 303(d)(2) of the

WQA is ``material,'' implying that Congress intended that 30 percent

removal refers to insoluble BOD, not total BOD. Section 303(d)(2)

states that ``primary or equivalent treatment means the removal of at

least * * * 30 percent of the biological oxygen demanding material * *

*'' (emphasis added). The commenters therefore sought a change to the

regulations' definition of primary treatment to require 30 percent

removal of insoluble BOD, with soluble BOD being excluded from the 30

percent removal requirement.

Some commenters were concerned that they might have difficulty in

achieving 30 percent BOD removal by the physical processes of primary

treatment because their influent BOD levels were very dilute, that is,

relatively low concentrations of BOD in the raw wastewater would make

30 percent removal hard to achieve. These commenters pointed to a

number of factors leading to such dilute wastewater and difficulties in

achieving removal efficiencies such as (1) cold climates which result

in freeze/thaw problems including inflow and infiltration from snow

melt and cracked or broken pipes with attendant dilution of the

influent by the resulting influx of fresh water; (2) insufficient

industrial or commercial sources with high concentrations of BOD in the

wastewater discharges to the municipal sewage system to offset

otherwise dilute influents with low BOD concentrations; (3) cold

wastewater temperatures resulting in relatively less efficient

treatment; and (4) extremely high tides and high precipitation. These

commenters recommended that EPA not require 30 percent removal during

periods of extremely dilute and clean inflows.

After considering these comments, EPA made no changes to the

definition of primary or equivalent treatment in Sec. 125.58(r).

However, as discussed below in the section-by-section analysis for

Sec. 125.60, the Agency is making changes to how compliance with the 30

percent removal requirement is calculated for BOD. Specifically, EPA is

allowing the demonstration of compliance with the 30 percent BOD

removal requirement to be averaged over a longer time period than

proposed, in some circumstances. This added flexibility should provide

some of the relief sought by commenters.

Although EPA recognizes that from a technical or engineering

perspective, primary treatment is generally thought of as physical

processes to remove solids, the statutory definition of primary

treatment adopted by Congress for purposes of section 301(h) is

unambiguous in requiring 30 percent BOD removal. In addition, EPA

disagrees with the commenters who stated that the statutory definition

precludes the use of additional treatment processes such as chemical

addition to enhance primary treatment's physical processes (e.g.,

chemical addition, coagulation, and precipitation) in order to achieve

the required 30 percent removal of BOD.

With regard to the commenters' suggestions that the definition be

revised to define BOD as insoluble BOD only, EPA recognizes that

removal of BOD in primary treatment normally is associated with the

removal of settleable (i.e., insoluble) materials. While the literature

cited by the commenters indicates that BOD removals for traditional

primary treatment range from about 20 to 40 percent, the reported range

is a result of many factors including treatment plant design,

subsequent additional treatment and influent qualities such as the

presence of soluble versus non-soluble BOD. Furthermore, Congress set

the BOD removal standard without incorporating such a distinction. Both

soluble and insoluble BOD exert the similar effect of depressing

dissolved oxygen levels in the receiving waters. Limiting the required

removal to only insoluble BOD ignores this fact and also would be

inconsistent with the existing approach of the Agency's secondary

treatment regulations, which do not distinguish between removal of

soluble and insoluble BOD. EPA disagrees that the use of the term

``material'' in section 303(d)(2) indicates that Congress intended that

30 percent removal refer only to insoluble BOD. See, e.g., 40 CFR part

133.

The definition in today's regulations comports with the express

statutory language, and if an applicant does have difficulty meeting

the 30 percent BOD removal requirement with treatment by screening,

sedimentation, and skimming, for such reasons as dilute influent, cold

temperatures, or soluble-to-insoluble BOD ratios, applicants can

increase BOD removal efficiencies through the application of treatment

processes which may include physical processes enhanced by chemical

processes. Accordingly, given the unambiguous statutory language on

percent removal and the ability to use enhanced treatment processes

when necessary, EPA believes the definition should not be amended to

allow for less than 30 percent removal of BOD or to exclude soluble BOD

from the removal requirements established by Congress. Compliance with

the 30 percent removal requirement, which may require enhanced or

additional technologies, is more appropriate than limiting treatment

strictly to the three technologies listed in the statute and not

achieving 30 percent in some cases. The term material, EPA believes,

does not imply insoluble, and, as explained above, such an

interpretation makes little sense, given that soluble and insoluble BOD

exert similar effects in the receiving waters.

Other commenters requested that the definition be changed to

require that the combined average of both BOD and SS percent removal be

at least 30 percent. EPA considered this option but did not deem it

acceptable for two reasons. First, the statute states that primary

treatment requires the removal of at least 30 percent of the biological

oxygen demanding material and of the suspended solids. Combining the

BOD and SS removal requirements into an overall 30 percent average, in

EPA's view, would not satisfy the statutory language or intent. Second,

after considering both information submitted by commenters and EPA's

own assessment of primary treatment removal data from POTWs (See

Technical Review of the Influent/Effluent Characteristics of POTWs,

June 1994), EPA concludes that most POTWs are removing greater than 30

percent of SS, and some are removing greater than 60 percent of SS.

Adopting the suggested change thus would allow for an actual relaxing

of both BOD and SS removal even for applicants capable of meeting the

30 percent removal of BOD and 30 percent removal of SS. There is no

indication that Congress intended this result. Moreover, properly run

primary treatment plants should be able to meet 30 percent SS removal

and no comments or data were received that indicate otherwise. EPA

believes one objective of the primary treatment provision is to ensure

the proper design and operation of treatment plants, and this objective

would not be met under the commenters' suggested interpretation.

Similar to the above comments, some commenters requested the

definition be changed to require that the combined average of both BOD

and SS percent removal be greater than 60 percent. As stated above, EPA

does not believe that the statutory language and intent are consistent

with combining BOD and SS removals to meet the 30-percent removal

requirement. Using a standard of 60 percent would stray even further

from the plain meaning of the statute. Moreover, if Congress had

intended to provide a 60 percent removal requirement it could easily

have so specified in the statute, however, the statute makes no

reference to a 60 percent removal of BOD and SS. Finally, as with the

previous comment, this interpretation could allow for even greater

relaxing of treatment efficiencies for BOD removal (or SS), leading to

less efficient plant operations than applicants are currently

achieving.

Some commenters suggested that the requirement for 30 percent

removal should reflect a ``credit system,'' under which the removal

efficiency for BOD would be calculated based on a combination of the

BOD removal by industrial dischargers' pretreatment, plus the removal

achieved by treatment processes at the POTW. This approach is

inconsistent with the plain statutory language and thus cannot be

adopted. The statute unambiguously specifies that the 30 percent

removal rate is to be achieved with respect to the applicant's

influent. Such influent would already have been subject to industrial

dischargers' pretreatment, and because the statute requires that the 30

percent removal rate be achieved for the influent to the POTW, credit

cannot be given for upstream treatment by industrial dischargers.

In contrast to the above comments seeking a change in the

definition of primary treatment, other comments supported the

definition of primary treatment as 30 percent removal of BOD and of SS

as proposed. These commenters noted that this definition is consistent

with the plain, unambiguous definition specified by Congress in the WQA

as discussed above, and these commenters agree with EPA that the

suggested changes to the definition that EPA has rejected would be

inappropriate.

Definitions of Saline Estuarine Waters and Ocean Waters

Under section 303(e) of the WQA, section 301(h) modified discharges

are prohibited into saline estuarine waters exhibiting certain signs of

stress (i.e., degradation to water quality) specified in the statute.

In contrast, this flat prohibition does not apply to ``ocean waters.''

As a result, in the proposed rule, EPA amended the term ``ocean

waters'' in Sec. 125.58(n) to clarify that ocean waters are distinct

from saline estuarine waters because discharges to saline estuaries are

now subject to additional regulatory criteria not applicable to

discharges to oceans.

Although the existing definition of saline estuarine waters was not

proposed for amendment, some commenters expressed the view that it is

too broad and thus might give the prohibition on section 301(h)

discharges to stressed saline estuarine waters greater scope than

intended. These commenters sought a definition giving more precise

boundaries to saline estuarine waters.

The narrative definition of saline estuarine waters has remained

unchanged since its original 1979 promulgation in the section 301(h)

regulations, and the section 301(h) regulations have always placed

additional restrictions on discharges to saline estuarine waters

compared to ocean waters. Section 125.61(c)(4) (1982) places additional

limits on impacts within the zone of initial dilution for saline

estuarine discharges. EPA's experience with the use of a general

narrative definition of saline estuarine waters for purposes of making

regulatory distinctions is that this approach is workable. EPA believes

that it is not feasible for the purposes of the section 301(h)

regulations to develop a definition establishing fixed boundaries

between ocean and estuarine waters, but that all relevant local

circumstances should be considered and the distinction should be made

on the basis of the site-specific circumstances.

The commenters' concern appears to center on the meaning of the

term ``semi-enclosed waters'' in the definition of saline estuarine

waters. In this regard it is important to note that under

Sec. 125.58(v), not all semi-enclosed coastal waters are treated as

saline estuaries. Under the section 301(h) regulations, while some

embayments and other indentations along the coastline lie inside the

baseline from which the territorial sea begins, they are treated for

purposes of section 301(h) as being ocean waters. See preamble to 1979

section 301(h) regulations (44 FR 34784, 34795, June 15, 1979). As

noted in the preamble to the 1979 section 301(h) regulations (44 FR

34795), it is the presence of fresh water inflows that is the

distinguishing characteristic of estuaries. EPA notes today that saline

estuarine waters typically are waters lying inside the baseline in

which the salinity is diluted by fresh water inflows. In contrast,

embayments or indentations along the coastline that are not influenced

by such fresh water inflows are not estuaries. To further clarify that

ocean waters and saline estuarine waters are distinct and mutually

exclusive terms for purposes of section 301(h), the final rule, as in

the proposal, amends the definition of ``ocean waters'' to note that

this term specifically excludes saline estuarine waters.

Commenters also inquired about situations where an outfall crosses

through estuarine waters, but the actual discharge is into offshore

waters. Because both the statute and the implementing regulations make

clear that the prohibition applies to discharges of pollutants into

saline estuarine waters, the statute and implementing regulations

already adequately address this case.

Section 125.59: This section describes the general requirements for

section 301(h) applications, including filing procedures and deadlines,

procedures for revising applications, and procedures for State

determinations. EPA proposed to make several changes to this section.

In the proposed rule, EPA added procedures for permit renewal,

clarified language regarding State determinations, and added provisions

for the submission of additional information to demonstrate compliance

with the urban area pretreatment program and primary or equivalent

treatment requirements. EPA also proposed to amend the regulations in

accordance with section 303(g) of the WQA to exclude certain applicants

from the water quality criteria provisions of Sec. 125.62(a), primary

or equivalent treatment program requirements (Sec. 125.60) and urban

area pretreatment program requirements (Sec. 125.65) until permit

renewal. As provided by the WQA, and explained later on in this

preamble, these grandfathering provisions in today's final rule apply

only to those section 301(h) applications that received tentative or

final section 301(h) modified permit approvals prior to enactment of

the WQA.

The new requirements for submitting additional information are

found in Sec. 125.59(e) and (f). Under those provisions, permittees and

applicants to whom EPA has issued a final or tentative decision,

including those that have been grandfathered under WQA section 303(g),

must submit a letter of intent explaining how the permittee or

applicant will meet the primary treatment and urban area pretreatment

requirements. Under Sec. 125.59(f)(3), applicants that are not

grandfathered have two years from publication of the regulation to

comply with the primary treatment and urban area pretreatment

requirements; applicants that are grandfathered have until permit

renewal or two years from date of publication of these regulations,

whichever is later. Under Sec. 125.59(e), the letters of intent must

contain a project plan, including a schedule, to ensure that timely

implementation of the requirements is accomplished.

Some commenters expressed the view that two years from the date of

promulgation of the regulations is not sufficient time to enable

compliance with the primary treatment and urban area pretreatment

requirements. One of these commenters expressed concern over the impact

of such a deadline on a consent decree schedule it has entered into for

development of a pretreatment program. Further, this commenter was

concerned that the time would not be sufficient to develop pretreatment

limits for all 126 toxic priority pollutants. Another commenter

expressed concern that two years was not sufficient given their short

construction season and reliance on obtaining funds from a State

legislature whose timing is not in the commenter's control. Other

commenters expressed the view that two years is a reasonable timeframe.

Another commenter expressed the view that two years is an excessive

timeframe and in fact should not apply to requirements which were

either (1) in effect prior to the 1987 amendments or (2) clear on the

face of the 1987 amendments (e.g., 30 percent BOD/suspended solids

removal standards).

With regard to requirements in effect prior to the 1987 WQA, the

two-year time frame is not applicable. The two-year time frame applies

only to the urban area pretreatment program and primary or equivalent

treatment requirements, both of which were added by the WQA.

EPA recognizes that for some applicants, compliance with a two-year

deadline from the date of promulgation of the regulations may be more

difficult than for others, for example, those who may have to obtain

funding to design and build an upgraded facility to meet the primary

treatment requirements. However, none of the commenters opposing the

two-year deadline provided persuasive information demonstrating why

this deadline could not be met. One commenter subject to court-ordered

deadlines and consent decree time-lines asked how to reconcile these

deadlines with the consent decree time-lines. That commenter also noted

that there are a number of different activities that need to be

performed to establish a local limit, such as gathering data,

developing computer models, and obtaining government approvals. That

commenter, however, provided no information supporting why these

activities cannot be accomplished within the time established in the

regulation. EPA notes that several of these activities can be performed

simultaneously. In response, the commenter will have to comply with the

deadlines included in the consent decree. This comment is moot because

of the time that has elapsed between the proposed rule and today. The

deadlines in the rule should not affect the dates in consent decree. In

addition, the commenter has been on notice for several years. EPA

continues to believe that the two-year time frame for compliance

provides sufficient time to achieve compliance. It should also be noted

that the requirement to develop local pretreatment limits does not

necessarily apply to all 126 priority pollutants, but only those that

are known or suspected to be introduced to the plant by industry, as

discussed later in this preamble. The Agency notes that the statutory

provisions giving rise to these requirements were enacted in 1987, and

that the proposed regulations and draft technical support document were

issued in 1991. In addition, the Agency has had other final guidance on

the development of pretreatment programs in place for several years.

Even in cases where commenters claim they have large numbers of

dischargers and large numbers of pollutants will need to be addressed,

EPA continues to believe that sufficient time and notice has been given

to achieve compliance. EPA agrees with the commenter who noted that

applicants have been on notice of the need to comply with the primary

treatment and urban area pretreatment requirements for quite some time,

and could have already initiated work on the planning and development

of measures to achieve compliance. The Agency also recognizes that in

the absence of final regulations on these issues, applicants should not

be expected to have completely developed and implemented final plans.

Given this situation, and in the absence of supporting information to

show that the two-year time frame of the proposal is inappropriate, the

Agency is retaining the proposal's two-year time frame from the date of

publication of the final regulations in the Federal Register to achieve

compliance. This date, August 9, 1996, is inserted in the regulatory

text of this rule.

One commenter asked for additional time to comply with the urban

area pretreatment and primary treatment equivalency requirements for a

plant that has not yet been constructed. In response, these applicants

will have to demonstrate compliance with these requirements based on a

predictive analysis of their flows. The applicant must base their

prediction on potential industrial sources and pollutants, and, to the

best of their ability, support such predictions within the two-year

time frame.

In proposed Sec. 125.59(h), EPA added language to clarify that the

Agency may tentatively approve a section 301(h) permit modification

where an applicant has demonstrated a good faith effort to come into

compliance with all requirements of the section 301(h) regulations,

based upon a schedule approved by the Agency for meeting any

outstanding section 301(h) requirements. This provision is consistent

with the existing regulations and practice and was proposed for

addition only as a clarifying change. In addition, the proposal made no

changes to the existing requirement that in order to receive a final

section 301(h) modification, applicants must demonstrate actual

compliance with all of the part 125, subpart G, requirements before EPA

will issue a final section 301(h) modified permit. See 40 CFR

Sec. 125.59(g)(1) (1982).

One commenter supported the approach taken by EPA on tentatively

approving an application based on a schedule with respect to

outstanding requirements if an applicant has demonstrated a good faith

effort to come into compliance. However, the commenter is concerned

that Sec. 125.59(h) creates an ambiguity regarding the permissible

scope of the schedules for meeting 301(h) requirements. Section

Sec. 125.59(h) allows EPA to tentatively approve an application if the

applicant is making a good faith effort to comply with ``all

requirements of this subpart.'' (emphasis added) The section continues

on, however, to require that the schedule for meeting these

requirements must be ``approved by the Administrator in accordance with

Sec. 125.59(f)(3)(ii), which refers only to schedules of compliance

with Sec. 125.60 (primary or equivalent treatment) and Sec. 125.65

(urban area pretreatment).

EPA agrees with the commenter and is clarifying Sec. 125.59(h) to

allow schedules for satisfying the 301(h) requirements for all

requirements. It was not the Agency's intent to limit compliance

schedules to the requirements of Secs. 125.60 and 125.65. The Agency's

intent was that the limitations of Sec. 125.59(f)(3)(ii) apply only to

compliance schedules for meeting the Secs. 125.60 and 125.65

requirements. Therefore, we are adding a phrase to

Sec. 125.59(f)(3)(ii) that reflects the Agency's intent.

Some commenters expressed the view that EPA should not grant

tentative approvals before all the section 301(h) requirements are met.

Additionally, one of these commenters felt that if a tentative approval

is granted prior to such compliance, the applicant may be encouraged to

relax its effort to comply.

Based on its past experience with this approach, EPA believes that

the provisions of the proposed regulation are appropriate and contain

adequate safeguards to prevent abuse. The regulatory provision

specifically requires that applicants must be making a good faith

effort to achieve compliance and requires that EPA establish a schedule

for achieving compliance. In addition, this approach provides an

opportunity for EPA, through the tentative decision document, to put

the public and applicants on notice of specific deficiencies and the

steps and time frame required to correct such deficiencies. Rather than

creating a disincentive to timely compliance, the regulatory provision

requires that a schedule for compliance be established. In addition,

EPA believes that by advising applicants that they may receive a final

section 301(h) waiver if the identified deficiencies are corrected as

required, the provision provides an added incentive for applicants to

achieve timely compliance. Finally, by addressing such deficiencies

through the tentative approval, the more lengthy process of tentative

denial followed by application revision is avoided. For these reasons,

EPA believes that the regulatory provision is reasonable and is

promulgating that provision today as proposed with the clarification

noted above.

One commenter recommended that the EPA regional office issue a

letter to the applicant stating that its permit has been

administratively extended in accordance with Sec. 122.6. In response,

EPA notes that this is a procedural issue governed by the NPDES

regulations. It is not a subject of this rulemaking.

EPA notes in reviewing this section that Sec. 125.59(d)(5) might be

misinterpreted to mean there is no opportunity to present new

information on applications for permit renewal. Paragraph (d)(5) is

referring to the one-time revisions allowed in Sec. 125.59(d)(1) and

(d)(2). Applicants who are authorized or requested to submit additional

information under Sec. 125.59(g) may still do so.

Section 125.60: The proposal added Sec. 125.60 to the regulations

to implement the primary or equivalent treatment provision in section

303(d) of the WQA. Issues related to the definition of primary

treatment have been previously dealt with in the discussion of

Sec. 125.58.

Proposed Sec. 125.60 required an applicant's discharge, at the time

the waiver becomes effective, to have received at least primary or

equivalent treatment. Additionally, under the proposal, applicants were

to comply with this treatment requirement based on the monthly average

results of the monitoring for SS and BOD.

A number of commenters recommended that EPA consider lengthening

the period of time over which monitoring data are averaged to determine

compliance with the 30 percent BOD removal requirement. These

commenters presented information on the difficulties with achieving the

30 percent removal because of such factors as dilute wastewaters, cold

climates that impact treatment design parameters (e.g., settling

rates), and proportionately low amounts of insoluble BOD. One of the

options identified by these commenters was to change from monthly

averaging of monitoring data to annual averaging (or some period in

between). Commenters pointed out that this was a reasonable approach

which was necessary to account for variations in influent quality or

other factors affecting removal rates that might occur over a year's

time. Other commenters supported meeting the primary treatment removal

requirements on a monthly average basis.

The Agency believes that the proposed period for averaging

monitoring results (i.e., monthly) to determine compliance with the 30

percent BOD removal requirement will be appropriate for most

applicants. However, as noted in the discussion for the primary

treatment definition in Sec. 125.58, the Agency also recognizes that

the 30 percent removal rate for BOD may be difficult to achieve on a

monthly average basis in certain cases, e.g., dilute wastewater or

proportionately low concentrations of insoluble BOD. Because of this,

the final rule has been modified to provide flexibility in certain

instances by allowing compliance monitoring to be averaged for a period

longer than monthly, up to annually.

EPA anticipates that compliance monitoring requirements established

for longer than monthly average periods will be the exception, not the

general practice. An applicant who has demonstrated a consistent

ability to achieve 30 percent removal of BOD on a monthly average basis

over one year prior to the publication date of these regulations will

not be eligible for the longer than monthly averaging period. The

longer period will be available only to those applicants who have some

historical data on BOD removal, and not for newly constructed

facilities. Eligibility for the longer period is limited to those who,

based on circumstances listed below, and subject to the qualifications

listed below, truly cannot achieve 30 percent removal on a monthly

average.

It is the Regional Administrator's decision whether to allow the

longer averaging period. The Regional Administrator will judge each

eligible case on its individual circumstances, taking into account

climatic, seasonal, or other factors beyond the applicant's control

which cause significant fluctuations in influent characteristics that

could impact BOD removal efficiencies. Appropriate circumstances may

include:

Seasonally dilute influent BOD concentrations due to

relatively high (although nonexcessive) inflow and infiltration;

Relatively high soluble to insoluble BOD ratios on a

fluctuating basis; or

Cold climates resulting in cold influent.

The longer period must be requested by the applicant, and the

burden of justifying a longer averaging period will be on the

applicant. In addition to justifying the application on conditions

listed above, to qualify for the longer averaging period the applicant

will have to demonstrate to the satisfaction of the Regional

Administrator that the treatment facility is properly designed and

operated; that the applicant will be able to meet all section 301(h)

requirements with the longer averaging basis; and because of

circumstances beyond the applicant's control (examples listed above),

the applicant cannot achieve the 30 percent removal requirement for BOD

on a monthly averaging basis. The final rule also requires that inflow

and infiltration (I/I) is nonexcessive in order to ensure that

applicants have corrected, as feasible, deficiencies in their

collection system that result in extremely dilute wastewater. The

definition of excessive I/I in 40 CFR 35.2005(b)(16) will be used to

determine whether the I/I is excessive, plus the additional criterion

that inflow is nonexcessive if the total flow to the primary treatment

plant is less than 275 gallons per capita per day, consistent with 40

CFR 133.103(d) of the secondary treatment regulations.

It should be noted that permit writers can still incorporate

interim limits into the permit. When compliance determinations with

interim limits indicate that the ability to achieve 30 percent removal

of BOD for the designated period is compromised, action to determine

and, if possible, fix the problem should be taken. Monitoring

frequencies for BOD should remain the same as they would be if the

compliance determination for BOD removal was on a monthly average

basis. For enforcement purposes, there is the potential that allowing

longer averaging periods may prove more costly to the POTW in

violation. POTWs should note that if a longer period is granted, they

should be aware of the risk that a violation of an annual average limit

may result in 365 days of violation.

Other commenters requested that EPA set a baseline level of BOD in

the treatment works influent above which 30 percent removal would be

required, with 30 percent removal not required for influent cleaner

than that threshold level. This option relies on a level of BOD in the

influent that hypothetically represents a typical BOD influent

concentration. The statute specifies 30 percent removal and does not

tie this requirement to some specific concentration in the influent.

The Agency believes that making the statutory 30 percent removal

requirement dependent on a hypothetical influent baseline concentration

would not meet the statute's intent.

One commenter stated that the approach to section 301(h) waivers

should be based on water quality effects and not on any

``equivalencies,'' e.g., primary treatment and secondary removal

equivalency. In response to this general comment, EPA reiterates that

it is promulgating these regulations to implement the new provisions of

the WQA which mandate primary or equivalent treatment. Today's

regulatory scheme is fully consistent with the new WQA amendments.

Some commenters raised concerns about the financial impact on some

individual dischargers if additional capital improvements are needed to

meet the 30 percent BOD removal requirement. They see the costs of

meeting the new primary treatment requirements as having a

disproportionate impact on small communities. For example, one

commenter stated that this requirement would result in a 20 percent

rate increase; that polymers alone would cost $100,000. Others

commented that cost should not be a factor in justifying a lower

removal efficiency and that EPA should not guarantee a cap on sewage

treatment costs.

As part of this rulemaking EPA has prepared an economic analysis of

the impacts of the regulations. Although some communities may need to

make improvements to their plants to meet the primary treatment

requirements, the statute does not authorize any waiver of those

requirements on the basis of financial hardship. In addition, EPA

believes that as shown in the economic analysis, the final regulations'

requirements do not unduly impact small communities in terms of overall

cost of compliance. Specifically, none of the small communities,

including the community that indicated in its comments a 20 percent

increase in rates, will end up spending more than 1 percent of median

household income on wastewater treatment. Municipal financial impact

models used by EPA assume that ratios of wastewater treatment costs to

median household income of less than 1 are not expected to create

economic hardship for households. Moreover, although current treatment

costs may increase, small communities will still realize an overall

cost savings if less-than-secondary treatment is approved through the

section 301(h) process. Finally, as discussed above, the Agency in

today's rule has provided the opportunity for adjusting the averaging

period for calculating compliance with the primary treatment

requirement for BOD under certain circumstances. This added flexibility

should further serve to reduce any potential adverse financial impacts.

The new flexibility may allow POTWs with dilute influent, provided it

is not excessive I&I to qualify with less cost to achieve compliance.

The cost of improving collection systems to fix excessive I&I would

impact small communities, but is not a cost of this rule. In response

to a comment that the need for this flexibility results from future

increases in treatment capacity due to population growth, EPA agrees

that this is not an appropriate reason, and has not based its decision

to allow flexibility on costs of additional treatment due to future

growth. There are other more appropriate and legitimate reasons, as

spelled out earlier in this preamble, for some measure of flexibility.

Section 125.61: No changes to this section were proposed or are

promulgated today. This section addresses the existence of, and

compliance with, water quality standards for the pollutant for which

the modification is requested. No comments were received.

Section 125.62: This section contains requirements for the

attainment or maintenance of water quality which assures protection of

public water supplies, the protection and propagation of a balanced,

indigenous population of shellfish, fish, and wildlife, and allows

recreational activities. In response to the requirement of WQA section

303(d) for discharges to meet CWA section 304(a)(1) water quality

criteria, EPA proposed language at Sec. 125.62(a)(1)(i)-(iii) and

125.62(a)(2) and (3) to implement that additional requirement. The

proposal also amended Sec. 125.62(f) to implement requirements of WQA

section 303(a) regarding combined impacts of section 301(h) discharges

and made a conforming change in light of the WQA prohibition on section

301(h) discharges to stressed estuaries to clarify that the

regulations' stressed waters test applies only to ocean waters.

Comments on this section addressed issues related to water quality

criteria, including human health carcinogenic risk levels, mixing

zones, combined impacts, and stressed waters.

Water Quality Criteria

Under the proposal to implement the WQA requirement that discharges

meet EPA section 304(a)(1) water quality criteria, EPA would first

determine whether there is an EPA-approved State water quality standard

that directly corresponds to the EPA section 304(a)(1) water quality

criterion for the specific pollutant. If there is, EPA would apply this

directly corresponding State standard. In the absence of such a State

standard, the section 304(a)(1) water quality criterion would be

applied instead. Under the proposal, an EPA-approved State water

quality standard would be deemed to ``directly correspond'' if (a) the

State water quality standard addresses the same pollutant as EPA's

water quality criterion; and (b) the State water quality standard

specifies a numeric criterion for that pollutant, or an objective

methodology for deriving such a pollutant-specific criterion. The

preamble to the proposed rule discusses this subject in more detail (56

FR 2818-2819).

A commenter felt that the regulations should require compliance

with the CWA section 304(a)(1) criteria at a minimum, and that

compliance with a directly corresponding State standard that may be

less stringent instead was unacceptable. The commenter argued that

Congress was aware of State water quality standards, and had Congress

intended that an applicant's discharge meet State water quality

standards, then Congress would have provided language so mandating. The

commenter also asserted that 301(h) waiver requirements should be

strictly construed in favor of water quality because 301(h) waivers

represent an exception to the general requirement to meet secondary

treatment. Other commenters supported the proposal to defer to EPA-

approved State water quality standards. The commenters believed that

this approach appropriately recognizes the State's discretion to set

its own standards.

EPA continues to believe that compliance with the EPA-approved,

directly corresponding State water quality standard in lieu of the EPA

section 304(a)(1) water quality criterion is appropriate. EPA water

quality criteria are national criteria, primarily issued to serve as

guidance for the States to use in establishing their water quality

standards under CWA section 303.

Under the CWA, States may develop water quality standards based on

the section 304(a)(1) criteria, as modified to reflect site-specific

conditions, or they may use other scientifically defensible methods for

developing water quality standards. State standards are subject to EPA

review and approval. They are developed by the States to protect the

types of biota in, and beneficial uses of, their local waters, and thus

represent scientifically appropriate standards for each State's

specific situation. EPA does not believe that, in amending section

301(h), Congress intended to interfere with this statutory scheme, nor

require compliance with the national guidance contained in the section

304(a)(1) criteria when the CWA section 303 standard-setting process

results in adoption of different standards to reflect local conditions

and those standards have been subject to EPA review and approval.

Rather, EPA believes that the intent of this provision was to ensure

compliance with the national section 304(a)(1) criteria in those cases

where the States have not adopted a directly corresponding State

standard and EPA has not itself promulgated a standard in light of such

State inaction. Today's final rule therefore retains the proposal's

approach. In the absence of an EPA-approved State water quality

standard that directly corresponds to the section 304(a)(1) water

quality criteria, the final rule requires compliance with the section

304(a)(1) water quality criteria.

For carcinogens, the EPA section 304(a)(1) criteria provide a range

of risk levels and corresponding criterion for each specific risk

level. In the proposal, EPA did not establish a specific risk level for

use in the section 301(h) program. As explained in the preamble (56 FR

2819, 2820), EPA instead would consider all relevant information in

determining the pollutant concentration that represents an appropriate

risk level for a specific carcinogen. This information would include

evidence that the State has consistently used a particular risk level

when establishing its water quality standards for other carcinogens. In

the absence of such a consistent State policy, EPA would consider a

State recommendation of a particular risk level if the State

demonstrates to the satisfaction of EPA that the particular risk level

is justified. The State demonstration would need to account for the

relevant exposure and uncertainty factors, show adequate public

participation in the selection of the risk level, and show that use of

the selected risk level is adequately protective of human health. In

cases where there is no consistent State policy or satisfactory State

demonstration on which to base a risk level, under the proposal, EPA

would set a specific risk level (for example, 10-6) based on the

circumstances of each case. See preamble to the proposed rule, 56 FR

2818-2820, for a detailed explanation of a satisfactory State

demonstration of a recommended risk level and EPA's approach to setting

risk levels.

EPA received a number of comments addressing the issue of whether

to set a specific risk level by regulation as opposed to allowing it to

be set on a case-by-case basis. A commenter stated that rather than

assuming that a zero discharge level is unattainable for any known

carcinogen, EPA should require the discharger to prove that, in fact,

zero discharge in a particular situation either would create severe

economic hardship or is not technologically feasible. These commenters

also stated that under no circumstances involving carcinogenic

pollutants should the allowable discharge exceed a 10-6 risk level

or the applicable State standard, whichever is more stringent. Other

public comments received on the issue of water quality criteria for

carcinogens also said the regulations should specify a human health

risk level that is no less protective than the 10-6 incremental

cancer risk and asserted that EPA had done so in other national

programs. One commenter stated that there should not be a flexible,

case-by-case approach toward establishing risk levels for carcinogens.

Instead, the commenter suggested that EPA establish a minimum risk

level, the least protective risk level that is acceptable, (and

corresponding maximum permissible discharge concentration) but allow

for flexibility to choose a more stringent risk level based upon a

given State's past practice.

With regard to the zero-risk level, as mentioned in the preamble to

the proposed rule, EPA believes that a zero effluent concentration is

essentially unattainable. Therefore, EPA has approved numeric State

water quality standards for carcinogens under CWA section 303 that

correspond to risk levels above zero. The approach adopted in the

proposed rule provides consideration of the State's views on an

appropriate risk level, or in the absence of such State input, provides

for EPA to consider all relevant information in setting a risk level.

EPA believes that establishing a presumption in favor of a zero risk

level would be inappropriate because even apart from questions of

achievability, compliance could not be demonstrated due to limitations

in analytical methods. Further, the commenter provided no basis to

refute EPA's belief that zero risk levels are not achievable. EPA thus

is not amending the regulations to establish a presumptive zero risk

level.

With regard to whether the section 301(h) regulations should

establish a single uniform risk level for use in the section 301(h)

program, the establishment of risk levels is a national issue which is

not limited to the section 301(h) program. As noted in the preamble to

the proposed rule (56 FR 2819), EPA expected that many or most coastal

States already had established or soon would establish one or more EPA-

approved water quality standards for toxic carcinogenic pollutants,

pursuant to section 303(c)(2)(B) of the CWA.

Subsequent to the proposal of these revised section 301(h)

regulations, EPA applied risk levels in the National Toxics Rule, which

sets water quality standards for priority pollutants in States that did

not have approved standards, pursuant to Sections 303(c)(2)(B) and

303(c)(4) of the CWA (57 FR 60848, December 22, 1992). More

specifically, the National Toxics Rule establishes water quality

standards pollutant-by-pollutant for fourteen States that did not have

an EPA-approved standard for the toxic pollutant in question where

section 304(a)(1) water quality criteria have been developed. EPA set

legally enforceable water quality standards with incremental cancer

risk levels for carcinogens and corresponding numeric values based on

specific exposure and other modeling assumptions. It should be noted

that EPA did not adopt a uniform nationwide 10-6 risk level in

other contexts, e.g., the National Toxics Rule, as suggested by a

commenter, who advocated that as a minimum level of protection.

In each State covered by the National Toxics Rule, the carcinogenic

risk level used to set the State's standard(s) was based on the best

information available to the Agency regarding that State's policy or

practice for risk levels used or that should be used in regulating

carcinogens in surface waters. For most of the affected States, the

risk level is based on a State-adopted or formally proposed risk level.

For some, the risk level is based on an expressed State policy

preference. With the National Toxics Rule, all States are now in

compliance with section 303(c)(2)(B). Hence, for purposes of

implementing Sec. 125.62, EPA will now look to the guidance contained

in the preamble and regulations of the National Toxics Rule to

establish the appropriate human health risk level and numeric value in

the absence of a directly corresponding State standard for any section

304(a)(1) criterion later established.

EPA believes that the carcinogenic risk provisions of proposed

Sec. 125.62(a)(2)(ii) are consistent with the National Toxics Rule, 40

CFR Sec. 131.36, and the guidance provided in the preamble to the rule

(57 FR 60848). Accordingly, today's rule at Sec. 125.62(a)(ii) is

promulgated as proposed, with a minor editorial change. In the absence

of an EPA-approved State water quality standard for a carcinogenic

pollutant, the Administrator will consider a consistently used, or

State-adopted or formally proposed risk level recommendation with a

satisfactory demonstration that the level is adequately protective of

human health in light of exposure and uncertainty factors and

population exposed. Exposure factors would include, for example, local

patterns of fish consumption, cumulative effects of multiple

contaminants and local population sensitivities. Factors related to

uncertainty would include, for example, the weight of scientific

evidence concerning exposures and health effects and the reliability of

exposure data.

One commenter noted that determinations of compliance with water

quality criteria will be dependent on the frequency and types of

sampling methods used and the effects industrial users' pretreatment

programs have on effluent quality. The commenter urged a flexible

approach in determining compliance because of these variables. EPA

notes, in response, that the regulations do not specify rigid sampling

requirements and frequencies, and thus already allow for consideration

in designing sampling programs to adequately characterize effluent

quality for purposes of evaluating compliance with water quality

criteria.

New section 301(h)(9) of the CWA requires that the discharge meet

the section 304(a)(1) water quality criteria ``after initial mixing in

the waters surrounding or adjacent to the point at which [the] effluent

is discharged.'' The zone of initial dilution (ZID) is defined in

existing Sec. 125.58(w) as ``the region of initial mixing surrounding

or adjacent to the end of the outfall pipe or diffuser ports, provided

that the ZID may not be larger than allowed by mixing zone restrictions

in applicable water quality standards.'' The existing 1982 regulations

required that all applicable State water quality standards adopted

under section 303 of the CWA be met at and beyond the boundary of the

ZID.

New language was proposed in Sec. 125.62(a)(1)(i) to implement the

requirement of new section 301(h)(9) to comply with the section

304(a)(1) water quality criteria or the directly corresponding State

water quality standards, but inadvertently omitted those State water

quality standards that do not directly correspond to the section

304(a)(1) water quality criteria. In so doing, EPA inadvertently

omitted the existing requirement that all applicable State water

quality standards, including those that do not directly correspond,

must still be met at and beyond the ZID. This requirement has been

retained in the final regulation. For purposes of this discussion,

there are three categories of water quality requirements: State water

quality standards that directly correspond to water quality criteria,

State water quality standards that do not directly correspond to water

quality criteria, and water quality criteria. It is the second

category, those State water quality standards that do not directly

correspond to water quality criteria, that was inadvertently left out

of the proposed regulation.

Two commenters questioned whether the proposed rule, by referring

to the ZID for purposes of calculating compliance with section 303

State water quality standards, raised a potential conflict with State-

specified mixing zones adopted as part of the section 303 standard-

setting process. One of these commenters requested that the regulations

be clarified to specify that compliance with State water quality

standards is to be determined under the methods and conditions

specified by the State in its standards.

EPA agrees that the proposed language could create confusion.

Today's final rule includes the existing requirement of the 1982

regulations that all applicable State water quality standards adopted

under section 303 of the CWA be met at and beyond the boundary of the

ZID and promulgates as proposed the new section 301(h)(9) requirement.

The effect of today's rule is to retain the existing practice of the

section 301(h) program in determining compliance with State water

quality standards. As stated in the preamble to the proposed rule,

EPA's purpose in promulgating these revisions to the regulations on

this issue was to implement the new requirements of the WQA. EPA did

not intend to change existing regulatory requirements not affected by

the WQA. As promulgated today, Sec. 125.62(a)(1) reflects the existing

regulations with the additional requirements of section 301(h)(9) of

the CWA, and EPA intends no changes to how determinations of compliance

with State water quality standards are made.

One commenter pointed to inconsistencies between language in the

technical support document (TSD) on ZID size and the actual definition

of the ZID as contained in Sec. 125.58(dd) of the regulations and

requested that this be addressed by amending the ZID definition. The

ZID definition was not proposed for amendment in the 1991 proposal and

is not being changed today. EPA responded to the comment by adding a

clarification to the final TSD on the technical issues regarding

calculation of the ZID size.

Combined Impacts of Discharge

Section 303(a) of the WQA requires an applicant to demonstrate that

the section 301(h) modified discharge will not interfere, alone or in

combination with pollutants from other sources, with the attainment or

maintenance of water quality to protect the uses specified in section

301(h)(2). As noted in the preamble to the proposed rule (56 FR 2816),

although EPA believes this requirement is consistent with the existing

1982 regulations, EPA added language in proposed Sec. 125.62(f) to

clarify this point. Proposed Sec. 125.62(f) requires an applicant to

demonstrate that its modified discharge meets Sec. 125.62 (a) through

(e), both alone, and taking into account the discharge in combination

with pollutants from other sources.

One commenter noted that cumulative impact assessments would need

to be performed to demonstrate that the POTW is not causing impact

alone or in combination with other dischargers and that the information

needed to make the assessment may not be available. The commenter

recommends that EPA provide sufficient guidance on performing the

needed cumulative impact assessments, including information on regional

waste load allocations, nonpoint source information, beneficial use

quantification, and regional water quality monitoring data. EPA agrees

that such information would be useful in making the required

demonstration of compliance. The availability of such site-specific

information will vary depending on local circumstances. Applicants

should work closely with their EPA Region and State water agencies to

identify possible sources of such information. EPA considered this

comment and made changes to the final TSD for the regulations in order

to provide additional guidance on this issue.

Stressed Waters

EPA received comments on two related aspects of the statutory

requirements and regulatory provisions regarding stressed waters: (1)

Demonstrating that no causal relationship exists between stressed

conditions and the applicant's discharge, and (2) prohibitions on

301(h) modified discharges to stressed saline estuaries. One commenter

on Sec. 125.62(f) (1) through (3) (the ``stressed waters test'')

requested that EPA state that an applicant can still make the

demonstration required by Sec. 125.62(f) (1) through (3) by showing

that no causal relationship exists between the stressed conditions and

the applicant's discharge. Other commenters supported the continued

requirement to demonstrate that no causal relationship exists between

the stressed conditions and the proposed section 301(h) modified

discharge. As previously noted, paragraphs (f) (1) through (3) are the

same as provisions contained in the existing 1982 section 301(h)

regulations, and applicants must demonstrate an absence of a causal

relationship between their discharge and stressed conditions as

specified in those paragraphs. The three substantive requirements for

such a demonstration were not proposed for change. As in the past,

applicants invoking this provision may avoid the need to demonstrate

compliance with paragraphs (a) through (e) by demonstrating that the

modified discharge does not:

(1) Contribute to, increase or perpetuate stressed conditions;

(2) Contribute to further degradation; and

(3) Retard recovery if perturbations from other sources decrease.

To reiterate, despite the addition of the word ``entirely,'' an

applicant still can make the demonstration required by Sec. 125.62(f)

(1) through (3) by showing that no causal relationship exists between

the stressed conditions and its proposed discharge.

Prior to the 1987 WQA, section 301(h) and the 1982 implementing

regulations allowed section 301(h) modified discharges to stressed

waters only under certain limited conditions, with no distinction made

between stressed saline estuaries and stressed ocean waters. The 1987

WQA amendments tighten this restriction with respect to saline

estuaries by prohibiting section 301(h) modified discharges altogether

to saline estuaries that are stressed (i.e., that exhibit certain

characteristics specified in the statute). The amendments also specify

that this prohibition applies without regard to whether it is the

applicant's discharge that is causing or would cause the stressed water

quality conditions. To implement this new statutory prohibition, EPA

proposed a change to the existing regulations regarding stressed

waters. EPA proposed adding this new prohibition to Sec. 125.59(b)(4),

and making conforming changes to Sec. 125.62(f) to prohibit section

301(h) waivers where stressed saline estuaries are involved. Section

125.62(f) is the provision that allows discharges to stressed waters

under certain conditions. The proposal altered this provision so that

such discharges would be allowed only with respect to stressed ocean

waters and not saline estuarine waters.

Commenters expressed the view that Congress did not intend to make

section 301(h) waivers available for any severely degraded waters,

whether in estuaries or oceans, and recommended limiting the reach of

the stressed waters exception to those locations where severe

environmental degradation has not occurred. The commenters noted that

if an exception must be available to POTWs discharging to stressed

waters, the commenters supported the approach taken in proposed

Sec. 125.62(f). In response to this comment, EPA notes that the 1987

WQA flatly prohibits section 301(h) modifications with respect to

stressed estuaries only. In contrast, applicants can satisfy 301(h)(2)

by showing that their discharges will not ``interfere, alone or in

combination,'' with certain water quality objectives. EPA continues to

believe that Sec. 125.62(f) fully meets this statutory directive. There

is no basis for the suggestion that Congress intended categorically to

prohibit waivers with respect to all stressed waters. Indeed, the

legislative history cited by the commenter does not lead to a contrary

opinion. EPA believes that the provisions adopted in today's final

regulations to implement the WQA prohibition on discharges to stressed

estuaries are fully consistent with the statute and that extending this

prohibition to ocean waters would be inconsistent with the plain

statutory language. Accordingly, the stressed waters provision in this

section is promulgated as proposed.

Section 125.63: This section outlines the general requirements for

monitoring programs required under section 301(h)(3) of the CWA. In the

proposal, EPA added language to this section to respond to section

303(b) of the WQA, which restricts the required scope of section 301(h)

biological monitoring programs to those scientific investigations

necessary to study the effects of the proposed discharge. EPA also

noted in the preamble to the proposed rule that the requirements of

such monitoring programs under the existing regulations are in fact

already focused on the effects of the discharge. The proposal also

added a requirement that applicants monitor their discharges to ensure

compliance with water quality criteria (if applicable under

Sec. 125.62(a)), in addition to water quality standards based on the

provision of section 301(h)(9).

EPA received one comment regarding monitoring. The commenter

requested that EPA add a provision for amending monitoring programs in

existing permits, including permits administratively extended beyond

their expiration dates, when the changes are technically justified. EPA

appreciates that changes to section 301(h) monitoring programs during

the life of the permit may be appropriate. EPA notes that this is a

procedural issue governed by the NPDES regulations and is not the

subject of this rulemaking. See 40 CFR 122.6.

Monitoring for Removal Efficiency Requirements

Some commenters suggested that the demonstration of removal

efficiency (defined as removal of 30 percent of BOD and TSS) should be

made throughout the year, and not simply at the time the modification

becomes effective. Other comments suggested that EPA require a

demonstration of removal efficiency of BOD as an initial threshold

determination only, that is, a one-time demonstration. In response, EPA

believes that demonstration of the removal efficiency should be an

ongoing requirement, and Sec. 125.60(b) requires that compliance be

demonstrated based on monthly averaging, as proposed (subject to the

exceptions discussed above). In addition, the statute does not state a

one-time requirement but instead envisions an ongoing requirement that

the applicant ``will be'' discharging effluent that has received

primary treatment. Given the statutory requirement for primary

treatment, it would make little sense to require a one-time

demonstration of removal efficiency, with the possible result that

less-than-primary treatment could occur during the course of the

section 301(h) modified permit and go undetected.

To ensure that data are available for purposes of section 301(h)

permit renewals, ongoing monitoring of compliance with the removal

efficiency requirement is necessary. EPA thus continues to believe that

section 301(h) permittees should monitor for compliance with the

primary treatment requirement over the life of the permit at the

frequency required in Sec. 125.60 (i.e., monthly, unless a less

frequent monitoring period is specified). Although already required in

Sec. 125.60(b), to clarify this point the final rule adds a new

paragraph, Sec. 125.63(d)(2), to ensure that the permit monitoring

requirements provide adequate data for demonstrating compliance with

the removal efficiency requirement over the life of the permit.

EPA is also making a conforming change to Sec. 125.63(a)(1)(i) to

clarify that monitoring programs must be designed to evaluate water

quality criteria, as well as water quality standards. This conforms to

the proposed change in Sec. 125.63(c), reflecting WQA language.

Changes to Monitoring Requirements

Some commenters requested that EPA identify the practical impact

the new limitation on the scope of monitoring will have on current

monitoring programs. As previously discussed, EPA does not believe that

WQA language limiting section 301(h) biological monitoring to

investigations necessary to evaluate the discharge effects represents a

substantial change in the program. The purpose of the required

monitoring programs has always been to evaluate discharge effects.

Since the monitoring program was already focused on evaluating

discharge effects, the new statutory and regulatory language should not

result in substantial changes to existing monitoring programs.

Other commenters expressed concern over potentially increased

monitoring costs. The additional monitoring requirements to ensure

compliance with the WQA's water quality criteria and primary or

equivalent treatment requirements are a necessary and reasonable

outgrowth of those new statutory requirements. Given those substantive

requirements and the need for data to evaluate continued compliance and

to support future requests for permit renewal, EPA believes it is

necessary to require monitoring in these areas. As with other section

301(h) monitoring requirements, the exact nature and frequency of such

monitoring by a particular applicant would be set on a permit-by-permit

basis in order to reflect individual circumstances. Burdens associated

with these monitoring requirements were addressed in the supporting

documentation for the information collection request accompanying the

regulations. Although some extra costs may be incurred, many of these

are one-time costs, and are not excessive, especially in light of the

economic benefits to the discharger receiving a section 301(h) waiver.

Section 125.64: This section contains criteria related to the

impacts of the modified discharge on other point and nonpoint sources

and implements section 301(h)(4) of the CWA. There were no proposed

changes to this section and no comments were received. This section

remains unchanged.

Section 125.65: This new section sets forth the urban area

pretreatment program requirements of section 303(c) of the WQA (CWA

section 301(h)(6)). These requirements apply to POTWs serving a

population of 50,000 or more, with respect to any toxic pollutant as

defined by Sec. 125.58(aa) introduced into the POTW by an industrial

source. Applicants subject to this provision must demonstrate that

industrial sources are in compliance with all applicable pretreatment

requirements, and that the applicant will enforce those requirements.

Also, for each toxic pollutant for which there is no applicable

pretreatment requirement in effect, the applicant must have in effect a

pretreatment program which, in combination with the treatment of

discharges from the POTW, removes the same amount of such pollutant as

would be removed if the POTW were to apply secondary treatment and had

no pretreatment program for such pollutant.

To implement these provisions, the proposed rule added Sec. 125.65

and added or revised certain definitions in Sec. 125.58. Proposed

Sec. 125.65(a)(2) clarified that the requirements of Sec. 125.65 are to

apply in addition to any applicable pretreatment requirements contained

in 40 CFR part 403 and that nothing in Sec. 125.65 is intended to waive

or relax the 40 CFR part 403 requirements.

Section 125.65 provides two methods for satisfying the urban area

pretreatment requirements. For each toxic pollutant introduced by an

industrial discharger, the applicant must demonstrate that it either

(1) has an ``applicable pretreatment requirement in effect'' or (2) has

in effect a program that achieves ``secondary removal equivalency.''

EPA received a number of comments requesting clarification of this

provision, as well as comments related to pretreatment requirements,

which toxic pollutants should be subject to urban area pretreatment

requirements, demonstration of secondary equivalency, and enforcement

of pretreatment requirements.

Scope of Pollutants to be Addressed

Some commenters believe that the urban area pretreatment program

requirements should apply only to ``pollutants of concern,'' rather

than applying to all priority pollutants introduced by industrial

dischargers. Commenters were concerned that the requirements might be

interpreted to apply to all 126 priority pollutants, whether or not

these are known or suspected to be discharged to the POTW by industry.

They believe the urban area pretreatment requirements should be limited

to those priority pollutants that are specifically known to pose a

threat or potential threat to human health, safety, or environmental

quality. These commenters stated that pollutants of concern should not

include pollutants that do not pose such a risk and provided several

options for identifying pollutants of concern, i.e., by excluding from

coverage pollutants (1) only discharged in small amounts by one

industry; (2) meeting water quality standards at the boundary of

initial mixing; (3) discharged in effluent at a threshold level percent

of an applicable water quality standard, criterion, or permit limit;

(4) discharged in low concentrations; (5) which do not interfere or

threaten to interfere with the attainment or maintenance of water

quality objectives as found in Sec. 125.62; or (6) not detected in the

effluent of the POTW. These commenters felt that developing local

limits for all toxic pollutants would be difficult and overly

burdensome. The commenters further stated that a distinction should be

made between significant and insignificant industrial dischargers.

EPA has not adopted these suggested changes in today's rule. The

statute clearly states that the urban area pretreatment requirement

applies to any toxic pollutant introduced into the POTW by an

industrial discharger. Therefore, EPA believes the regulations should

address all such toxic pollutants. However, this means only those toxic

pollutants known or suspected to be introduced to the POTW by an

industrial discharger. Thus, if all 126 priority pollutants are not

discharged to a given POTW, not all 126 priority pollutants will need

an applicable pretreatment requirement, e.g., categorical standard or

local limit. EPA notes, however, that the industrial user's survey must

be comprehensive, addressing all non-domestic sources, to assure that

the POTW takes all toxics from industrial sources into account.

Guidance is provided in the TSD to help identify toxics known or

suspected to be discharged from several industries not subject to

categorical pretreatment regulations.

One commenter asserted that receiving waters should be the focus of

this requirement; that is, it is inappropriate to have technology-based

requirements when receiving waters do not warrant them. The commenter

further stated that the requirement should focus on whole effluent

toxicity. In response, EPA notes that the statutory provision is

technology-based, and refers to each toxic pollutant introduced by

industrial sources. Other Clean Water Act provisions address whole

effluent toxicity and this has been taken into account.

Applicable Pretreatment Requirements

As specified in Sec. 125.65(c) of the proposed regulations,

applicable pretreatment requirements could take the form of federal

categorical pretreatment standards promulgated by EPA under section 307

of the CWA, local limits developed in accordance with 40 CFR part 403,

or a combination of both. As proposed, therefore, applicable

pretreatment requirements consist of the following as stated in

Sec. 125.65(c):

(i) for each industrial source discharging to the applicant's

treatment works for which there is no applicable categorical

pretreatment standard for the toxic pollutant, a local limit or limits

on the toxic pollutant satisfying the requirements of 40 CFR part 403

and Sec. 125.62;

(ii) for each industrial source discharging to the applicant's

treatment works that is subject to a categorical pretreatment standard

for the toxic pollutant, the categorical standard plus a local limit or

limits as necessary to satisfy the requirements of 40 CFR part 403 and

Sec. 125.62.

One commenter stated that ``applicable pretreatment requirements''

should be developed to ensure compliance with 40 CFR part 403 and not

also to ensure compliance with requirements in Sec. 125.62, which

addresses protection of a balanced indigenous population (BIP). This

commenter pointed out that the requirements to achieve a BIP already

must be satisfied under Sec. 125.62 if the section 301(h) permit

modification is to be granted. Further, it is unnecessarily restrictive

to specify that the BIP requirements be met by applying local limits

rather than through other means.

EPA agrees and has clarified this provision in the final rule by

deleting the reference to Sec. 125.62 from Sec. 125.65 (c)(1) (i), (ii)

and (2). Any section 301(h) discharge must comply with the BIP

requirements of the regulations, but how this is achieved, whether by

local pretreatment standards or other toxics control measures, is at

the discretion of the applicant. The Agency never intended to require

that local limits alone must be shown to independently protect a BIP.

The intent was that local limits would be developed to meet 40 CFR part

403 and Sec. 125.65 and would be at least one aspect of overall toxic

control efforts by the applicant that would contribute as a whole to

meeting the requirements of a BIP. It should be noted, however, that

conditions necessary to achieve and perpetuate a BIP may be used as a

basis for setting a local limit.

Because the regulations already require compliance with

Sec. 125.62, and in light of the concerns raised over linkage of local

limits to the Sec. 125.62 requirement, EPA is making this change to the

final regulations. This change does not alter the requirement to meet

all other section 301(h) provisions.

Some commenters believe that provisions should be included for

local limits to consider sludge quality and the potential for air toxic

emissions. Under the Agency's existing local limit program under 40 CFR

part 403, and sewage sludge regulations at 40 CFR parts 257, 403 and

503, local limits may be required where necessary to protect sludge

quality so as not to interfere with its management and ultimate

disposal or beneficial use, and where necessary to protect plant

workers. The pretreatment regulations address air toxic emissions

within the POTW to protect worker health and safety. The commenters'

concerns regarding sludge quality and incineration, and resultant air

emissions are addressed by the Agency's pretreatment regulations,

sewage sludge regulations and regulations under the Clean Air Act. The

Agency has begun to address standards for air toxic emissions from

POTWs.

The comments taken as a whole show some confusion about how EPA

expects the ``applicable pretreatment requirement in effect'' provision

of the urban area pretreatment program to be implemented. Commenters

were concerned that these requirements were overly burdensome and

sought flexibility. Commenters pointed out that requirements for every

industrial user are unnecessary for ensuring an adequate local limit

for the toxic pollutant. After considering these comments, EPA has

revised its approach as follows. First, the POTW need not apply a

specific local limit to each and every industrial source of each toxic

pollutant. Instead, after conducting a local limits analysis, the POTW

may apportion the allocation to industrial sources of the toxic in the

way that the POTW deems most appropriate, subject to the approval of

the Regional Administrator. This could include not imposing any limit

for the pollutant on certain industrial users. This modification should

achieve the same end result as the proposal, that is, to attain the

same level of toxic pollutant reduction, while providing flexibility to

the POTW to implement the provision. The Guidance Manual on the

Development and Implementation of Local Discharge Limitations under the

Pretreatment Program discusses how to allocate local limits among

industrial sources for all POTWs, not just 301(h) applicants. EPA

believes that the approach of POTWs under 301(h)(6) should be

consistent with that guidance. This approach is less burdensome to

implement while still achieving equivalent reductions in toxics.

Second, the applicant can show an ``applicable pretreatment

requirement in effect'' for those toxic pollutants for which there is

no applicable categorical pretreatment standard, and for which the

applicant determines, based on the 40 CFR part 403 analyses, that a

local limit is not necessary. The permit in these cases will require

the applicant to demonstrate on an annual basis over the permit term,

that a local limit is not necessary and, where appropriate, will

require the applicant to institute industrial management practices

plans.

The following steps are intended to clarify how EPA will implement

the ``applicable pretreatment requirement in effect'' provision for

toxic pollutants:

(1) The applicant must conduct an industrial user survey as

required by 40 CFR part 403 and Sec. 125.66;

(2) The applicant must conduct representative sampling and analysis

of the POTW's influent, effluent, and sludge for toxic pollutants;

(3) The applicant must implement the national categorical standards

for each industrial source subject to categorical standards;

(4) For those toxic pollutants known or suspected to be introduced

by an industrial source, the applicant must conduct an analysis under

40 CFR part 403 to assess the need for local limits;

(5) For those toxic pollutants for which the applicant determines,

based on the 40 CFR part 403 analysis, a need for local limits, the

applicant must set local limits;

(6) For those toxic pollutants for which the applicant determines,

based on the 40 CFR part 403 analysis, that local limits are not

necessary, the applicant must continue to monitor the POTW influent and

effluent during the term of the permit and/or conduct technical reviews

of data on discharges from industrial sources during the term of the

permit, and where appropriate require industrial users to institute

industrial management practices plans (IMPs) and other pollution

prevention activities, to reduce or control the levels of these toxic

pollutants from industrial sources. These plans and activities could

include Best Management Practices (BMPs). See TSD and EPA Guidance

Manual on the Development and Implementation of Local Discharge

Limitations under the Pretreatment Program (1987 and 1991). For these

toxic pollutants, applicants would be required to assure EPA on an

annual basis that these particular toxic pollutants do not result in

levels that warrant development of local limits. If such monitoring and

technical review of data indicate that a local limit is needed, the

POTW shall establish and implement a local limit.

The basic philosophy of instituting industrial management practice

plans (IMPs) is to minimize the discharge of toxic or hazardous

pollutants to the sewer, or reduce the impact of toxic/hazardous

pollutant discharges by avoiding short-term, high concentration

discharges. IMPs can be applied to all classes of industrial users,

e.g., major and minor industrial users. Examples of appropriate uses of

IMPs include control of chemical spills and sludge discharges to the

POTW through formal chemical or waste management plans (including

BMPs), solvent management plans, batch discharge policies, waste

recycling and waste minimization. It would also be appropriate to

consider IMPs in cases where the POTW does not include biological

treatment processes, or provides less treatment, e.g., primary

treatment.

In these cases, IMPs can be tailored for industrial sources of

toxic pollutants that might otherwise interfere with biological

treatment or would be degraded or removed through additional treatment.

EPA has added this information to the regulations in response to

comments. The intent of these steps is to set forth a process that is

not overly burdensome for applicants but that assures that applicable

pretreatment requirements are in effect for each toxic pollutant.

Secondary Removal Equivalency

Under section 301(h)(6) and Sec. 125.65, where there is no

applicable pretreatment requirement as described above for a toxic

pollutant known or suspected to be introduced by an industrial

discharger, the applicant must demonstrate that it has in effect a

pretreatment program which, in combination with the POTW's own

treatment of discharges, removes the same amount of the pollutant as

would be removed if the POTW were to apply secondary treatment to

discharges and if such works had no pretreatment program with respect

to the pollutant.

EPA has termed this the ``secondary removal equivalency''

requirement and the proposed rule added this term to the definitions in

Sec. 125.58(w). To meet the ``secondary removal equivalency''

requirement, the applicant must demonstrate that the combination of its

own treatment plus pretreatment by industrial dischargers achieves

``secondary removal equivalency.''

Under today's final rule, to demonstrate secondary removal

equivalency, an applicant would need to use a secondary treatment pilot

plant. By diverting part of its waste stream to the pilot plant after

primary treatment, the applicant would empirically determine the amount

of a toxic pollutant that would be removed from the waste stream if the

applicant were to apply full-scale secondary treatment. The applicant

would then need to demonstrate to EPA that it has a pretreatment

program in effect which, in combination with its own treatment

processes, removes at least that total amount of toxic pollutant from

the POTW's discharge, achieved through concentration- and mass

emissions-based effluent limits. If at least that amount is not

removed, then further reductions of the pollutant would be required.

The NPDES permit will include concentration and/or mass emissions

effluent limits based on the data from the secondary equivalency

demonstration when those values are more stringent than effluent limits

based on State water quality standards or water quality criteria, if

applicable, and to assure that all of the Sec. 301(h) criteria are met.

Once such effluent limits are established in an NPDES permit, the POTW

may either establish local limits or perform additional treatment at

the POTW, or combine the two to achieve the permit limit.

Some commenters thought that they would be penalized for having an

existing pretreatment program if they used pretreated waste to

determine secondary equivalency, because of the undetermined removals

by current industrial pretreatment. They urged the use of procedures

for determining pre-existing (prior to source control) conditions to

take into account existing toxic pollutant reductions and commented on

the difficulty of obtaining ``unpretreated'' industrial wastewaters.

Other commenters thought that the secondary removal equivalency

demonstration should be made with all other pretreatment requirements

required by section 301(h)(5) in place, because they reasoned that the

section 301(h) program does not provide waivers from the toxics

requirements.

EPA agrees that the section 301(h) program does not provide a

waiver from toxics control requirements, and the existing section

301(h) program already has toxics control requirements, including

industrial pretreatment, in effect. However, the secondary removal

equivalency provision of section 301(h)(6) addresses only those toxic

pollutants that do not have applicable pretreatment requirements in

effect, and that are being introduced by industrial sources to POTWs

serving urban areas.

POTWs will not be penalized for having an applicable pretreatment

requirement in effect for a particular toxic pollutant. If the POTW has

an applicable pretreatment requirement in effect for a specific toxic

pollutant, as described in Sec. 125.65, it will be in compliance with

Sec. 125.65 with respect to that pollutant, and the POTW will not need

to comply with the ``secondary removal equivalency'' requirement for

that pollutant.

There may, however, be reduced levels of other toxics that are

discharged to the POTW owing to incidental removals from applicable

pretreatment requirements targeted to remove specific toxic pollutants.

Likewise, there may be reduced levels of a specific toxic pollutant

discharged to the POTW from categorical pretreatment for that toxic

pollutant that may not satisfy the conditions of an applicable

pretreatment requirement in effect. Because neither of these two above

situations satisfy the requirements of ``applicable pretreatment

requirement in effect'' with respect to these toxic pollutants, the

applicant would need to demonstrate secondary removal equivalency for

them. It may be true that the cumulative removal will be lower if

pretreated influent is used. EPA does not expect this situation to

occur often because if an applicable pretreatment requirement exists

for a particular toxic pollutant, then a secondary removal equivalency

demonstration is not needed for that toxic pollutant. This situation is

only likely if some pretreatment occurs for other pollutants.

One commenter asserted that secondary treatment removal equivalency

is highly impractical and appears to resurrect EPA's discredited

``removal credit'' system. In response, the statute focuses on the

levels of toxic pollutants that are removed through a combination of

pretreatment and POTW treatment processes, regardless of where the

removal occurs.

Some commenters felt that the term ``removals'' should not include

removals obtained by air volatilization and through sludge because this

is simply a transfer of a pollution problem between media. EPA notes

that removals obtained by a secondary pilot plant are used simply to

determine the amount of additional pretreatment and/or POTW treatment

if any, that would be needed to meet secondary removal equivalency. For

purposes of achieving removals through a combination of a POTW's

treatment and pretreatment, EPA will not consider pollutants that

remain in sludge or are volatilized as removed, except those removals

that are consistent with sludge and pretreatment regulations. As noted

in the discussion on ``applicable pretreatment requirements,'' EPA's

pretreatment and sludge regulations do apply in any case to any POTW

treatment processes and sludge produced from the POTW.

Some commenters suggested that EPA identify technology-based limits

for demonstrating secondary removal equivalency, citing EPA's Fate of

Priority Pollutants in Publicly Owned Treatment Works, Vol. I (Sept.

1982) and Vol. II (Sept. 1982) as a basis for establishing such limits.

In response, in EPA's judgement, the above cited studies demonstrate

that each POTW's influent is unique based on a variety of factors.

Secondary treatment removes toxics incidental to the technology for

reducing BOD and SS, and results in great variability in the levels of

toxic and non-conventional pollutants in effluent and sludge. The Act

clearly puts the burden on the applicant to demonstrate and not on EPA

to develop uniform technology-based standards. In any event, developing

uniform technology-based standards would be very difficult because of

the variability of influents, pretreatment levels, and other site-

specific conditions. Therefore, EPA has not developed technology-based

limits representing characteristic removal of toxic pollutants from

secondary treatment.

Commenters also asked EPA to address the costs of the pilot plant

approach. These costs are addressed in the Economic Impact Analysis.

In summary, for those toxic pollutants for which there is no

applicable pretreatment requirement in effect, the POTW must either (1)

develop and implement an applicable pretreatment requirement or (2)

demonstrate, through a combination of pretreatment by industry and the

POTW's own treatment processes, that it removes at least as much of the

toxic pollutant as would be removed by a POTW that applies secondary

treatment and that has no pretreatment program for the pollutant.

Guidance is provided in the TSD.

Compliance Determination

Several commenters stated that EPA needs to address how a POTW will

demonstrate that all of its industrial dischargers are in compliance

with the pretreatment requirements and that EPA would allow less than

100 percent compliance. Some suggested that EPA should allow POTWs to

demonstrate compliance with all applicable pretreatment requirements by

taking all appropriate legal and administrative enforcement actions to

enforce pretreatment requirements. Others thought that accommodating

less than 100 percent compliance would introduce considerable

uncertainty concerning the level of compliance EPA will deem to be

adequate and the regulations should identify a definite standard by

which to gauge compliance with this new standard. In addition,

commenters have provided examples of when less than full compliance

will be considered acceptable, such as instances of trivial or isolated

violations.

For urban area POTWs with significant numbers of industrial users,

at any given time, it is reasonable to expect that at least one or more

of those users might be out of compliance. EPA intends to determine a

POTW's continuing eligibility for a 301(h) waiver under section

301(h)(6) by measuring industrial user compliance and POTW enforcement

activities against existing criteria in the Agency's National

Pretreatment Program. In the proposed rule, EPA explained that it would

consider the issue of compliance with the pretreatment requirements on

a case-by-case basis, taking into account the number and nature of non-

compliances. In 1989, EPA established criteria for determining POTW

compliance with pretreatment implementation obligations. One element of

these criteria is the level of significant noncompliance of the POTW's

industrial users. The General Pretreatment Regulations (part 403)

identify the circumstances when industrial user noncompliance is

significant. The industrial user significant noncompliance (SNC)

criteria are set out in 40 CFR 403.8(f)(2)(vii) and address both

effluent and reporting violations. This policy is consistent with the

approach in the proposed rule. The General Pretreatment Regulations,

however, are more explicit. In response to public comments, EPA has

changed the approach in today's final rule to be consistent with Agency

enforcement policy and to remove uncertainty.

For pretreatment purposes, a POTW's enforcement program is

considered adequate if no more than 15 percent of its industrial users

meet the SNC criteria in a single year. A similar level of industrial

user SNC rate will generally be applicable to POTWs with 301(h)

waivers, but will be subject to facility-specific conditions. In

addition, a POTW is also considered in SNC if it fails to take formal

appropriate and timely enforcement action against any industrial user,

the wastewater from which passes through the POTW or interferes with

the POTW operations.

In enforcing the pretreatment programs, POTWs are expected to

respond to industrial user noncompliance using local enforcement

authorities in accordance with an approved enforcement response plan

(ERP) which is required of all approved pretreatment programs (see 40

CFR 403.5). POTWs, including 301(h) POTWs, with greater than 15 percent

of their users in SNC, or which fail to enforce appropriately against

any single industrial user causing pass through or interference, are

deemed to be failing to enforce their pretreatment program.

EPA will base its determination on data collected during site

visits to the POTW and from the POTW's pretreatment program performance

report required by 40 CFR 403.12(i). These reports include compliance

information on industrial users gathered by the POTW as well as a

description of the enforcement activities of the POTW. EPA believes

that the combination of industrial user compliance and POTW enforcement

provides an appropriate measurement of the POTW's eligibility for the

301(h) waiver under section 301(h)(6).

This interpretation is consistent with the directives in a Senate

Report on an earlier version of the bill (see S. Rep. No. 1128, 99th

Cong., 1st Sess. 14 (1985)) as discussed in the proposal (56 FR 2817).

EPA notes that approval of the 301(h) waiver, which requires that the

POTW applicant demonstrate that its industrial users are in compliance

with their applicable pretreatment requirements, provides a substantial

incentive to the POTW to assure that its industrial users are in

compliance with all applicable pretreatment requirements. EPA believes

that an approach relying on a determination of SNC is preferable to

focusing on trivial or isolated violations, or other suggested methods,

because it gives clear guidelines and is consistent with the

enforcement approach in the pretreatment program.

Section 125.66: This section includes provisions for industrial

pretreatment and control of toxic pollutants from nonindustrial

sources. To update compliance deadlines, the proposal made a minor

change in Sec. 125.66 (c)(1)) regarding deadlines by which applicants

were required to develop approved pretreatment programs. No comments

were received on this section and it is being promulgated as proposed.

Section 125.67: This section discusses the criteria related to

increased discharges and implements section 301(h)(8) of the CWA. No

changes were proposed for this section, and no comments were received.

It remains unchanged.

Section 125.68: This section sets forth special permit conditions

to be included in section 301(h) modified NPDES permits. No changes

were proposed for this section, and no comments were received. It

remains unchanged.

Application questionnaires: Under the section 301(h) regulations

promulgated in 1982, there are two application questionnaires

(questionnaire is defined in Sec. 125.58), one for use by small

applicants and one for use by large applicants. The proposal merged

these into a single questionnaire and added questions as necessary to

respond to the new requirements of the WQA. No comments were received

on the proposed changes, and they are promulgated today as proposed.

Other Issues and Comments

EPA received several technical and minor comments on the draft

amended TSD guidance document and some comments that addressed the

regulations or 301(h) program in general. EPA responded to many

comments by making changes to the TSD as appropriate. The changes are

not discussed here. Below are responses to comments for which no change

was made in the TSD, and responses to the general comments.

One commenter suggested that it is important that significant

flexibility be provided in making determinations regarding the impacts

of other sources on water quality until more definitive information is

available for nonpoint and other source categories. The commenter also

states that this section appears to be in conflict with Sec. 125.63(b)

which limits the monitoring program to only those scientific

investigations necessary to study the effects of the proposed

discharge. In response, the regulations already address the cumulative

impacts of a discharge as an integral piece of information necessary to

analyze the balanced indigenous population requirements of 301(h). It

is not in conflict with Sec. 125.63(b). The effects of the proposed

discharge are evaluated in the context of the receiving water

environment, alone and in combination with other sources of pollutants.

Another comment recommended that the guidance document be changed

to require that a date and approval sequence between the State and EPA

Region be mutually agreed-upon, rather than requiring compliance with

Sec. 125.59(f)(4), which requires State determinations to be due to the

regions no later than 90 days after an application is submitted to EPA.

In response, the TSD simply reflects the regulatory language, which was

not proposed for change and is not a subject of this rulemaking.

Another commenter asked that the guidance better define what is

meant by ``significant ecological change.'' This comment is beyond the

scope of this rulemaking. The approach to defining a balanced

indigenous population (BIP) was not proposed for change and EPA is not

considering redefining the BIP.

A commenter suggested that the approach to 301(h) waivers should be

based on water quality effects and not on any ``equivalencies.''

Another commenter suggested that if high BOD levels are allowed for

industrial dischargers under effluent guidelines for certain

industries, why do we require the 30% removal of BOD and SS for

municipal effluents? In response to both these comments, the statute

does not provide us leeway on these issues. The statute is clear on its

face in requiring equivalency testing and the removal of 30% of BOD and

SS.

One commenter requested that strong consideration be given to

centralizing the evaluation of waiver requests. While this comment is

beyond the scope of this rulemaking, we recognize the consistency and

efficiency this might suggest. However, 301(h) waiver applications are

handled case by case, based on site-specific circumstances. Although

there is national oversight on the implementation of the program,

regional evaluation provides the ability to apply regional expertise on

regional and local circumstances surrounding 301(h) applications.

EPA also received requests from commenters for additional time to

comment. EPA accommodated these requests and considered all comments

received in developing this final rule. Others requested that EPA

notify industrial users of the proposal. In response, EPA gave a 60 day

public comment period, which EPA believes to be adequate notice for all

affected parties.

III. Supporting Documentation

A. Regulatory Flexibility Act

Under the Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et

seq.), federal agencies must, when developing regulations, consider the

impact of the regulations on small entities (small businesses, small

government jurisdictions, and small organizations). To evaluate whether

this rule will have a significant economic impact on a substantial

number of small entities, the Agency has prepared an Economic Impact

Analysis (EIA). The Agency has concluded, based on the EIA, that this

rule does not unduly impact on small communities in terms of overall

cost of compliance. Specifically, none of the small communities will

end up spending more than 1 percent of median household income on

wastewater treatment. Moreover, although current treatment costs may

increase, small communities will still realize an overall cost savings

if less than secondary treatment is approved through the section 301(h)

process.

There were 51 applicants or permittees in the section 301(h) permit

program at the time of the economic analysis. Out of these 51

applicants or permittees, only six are both expected to incur

additional costs due to the primary or equivalent treatment

requirements and meet the Small Business Administration (SBA)

definition of a small entity (a service area with a population of less

than 50,000). All those applicants or permittees subject to and

expected to incur additional costs due to the urban area pretreatment

requirements and one of the permittees expected to incur additional

costs due to the primary or equivalent treatment requirements have

service area populations of greater than 50,000, and thus are not small

entities. On a national level, the total estimated capital cost of

meeting the primary or equivalent treatment requirements for the six

small entities amounts to less than $7.2 million, with an associated

operations and maintenance cost of $465,000 per year. Assuming a 20-

year repayment schedule, the total annualized cost, for the six small

entities, equals approximately $675,000 a year. After compliance with

the primary or equivalent treatment requirements, the total annual

sewer fee charged by these ten small entities is less than 1 percent of

the community's median household income. Consequently, none of the

small entities affected by this rule are expected to incur significant

economic impacts, especially in light of the overall savings garnered

by these communities from not having to comply with secondary treatment

requirements.

In summary, I certify that this rule will not have a significant

economic impact on a substantial number of entities.

B. Executive Order 12866

Under Executive Order 12866, [58 Federal Register 51735 (October 4,

1993)] the Agency must determine whether the regulatory action is

``significant'' and therefore subject to OMB review and the

requirements of the Executive Order. The Order defines ``significant

regulatory action'' as one that is likely to result in a rule that may:

(1) Have an annual effect on the economy of $100 million or more or

adversely affect in a material way the economy, a sector of the

economy, productivity, competition, jobs, the environment, public

health or safety, or State, local, or tribal governments or

communities;

(2) Create a serious inconsistency or otherwise interfere with an

action taken or planned by another agency;

(3) Materially alter the budgetary impact of entitlements, grants,

user fees, or loan programs or the rights and obligations of recipients

thereof; or

(4) Raise novel legal or policy issues arising out of legal

mandates, the President's priorities, or the principles set forth in

the Executive order.

It has been determined that this rule is not a ``significant

regulatory action'' under the terms of Executive Order 12866 and is

therefore not subject to OMB review.

C. Paperwork Reduction Act

The information collection requirements of this rule have been

approved by the Office of Management and Budget (OMB) under the

Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and have been assigned

control number 2040-0088.

The estimated average annual burden hours for the collection of

information is approximately 1,006 hours per POTW respondent, and 120

hours per State respondent. Of that, the incremental burden from these

regulatory changes is approximately 192 hours per small facility, 256

hours per large facility, and 40 hours per State respondent. These

estimates include the time for reviewing instructions, for POTWs to

collect information to comply with this final rule, including

conducting monitoring and toxics control activities, and completing and

submitting the applicant questionnaire, as well as time for States to

prepare the State determinations and certifications. No comments were

received on the information collection requirements.

Send comments regarding the burden estimate or any other aspect of

this collection of information, including suggestions for reducing this

burden to Chief, Information Policy Branch, EPA, 401 M Street, S.W.,

(Mail Code 2136), Washington, D.C. 20460; and to the Office of

Management and Budget, Washington, D.C. 20503, marked ``Attention: Desk

Officer for EPA.''

List of Subjects in 40 CFR Part 125

Environmental protection, Marine point source discharges, Reporting

and recordkeeping, Waste treatment and disposal, Water pollution

control.

Dated: July 14, 1994.

Carol M. Browner,

Administrator.

For the reasons set out in the preamble, part 125 of Title 40 of

the Code of Federal Regulations is amended as set forth below. Note:

For clarity, EPA has set forth below part 125, subpart G in its

entirety. However, the Agency is amending only portions of these

regulations in today's notice. Although the existing portions of

subpart G that EPA is not amending are also set forth below, EPA did

not reconsider those portions and they are not subject to challenge as

part of this final rulemaking.

PART 125--CRITERIA AND STANDARDS FOR THE NATIONAL POLLUTANT

DISCHARGE ELIMINATION SYSTEM

1. The authority citation for 40 CFR part 125, subpart G is revised

to read as follows:

Authority: Clean Water Act, as amended by the Clean Water Act of

1977, 33 U.S.C. 1251 et seq., unless otherwise noted.

2. 40 CFR part 125, subpart G is revised to read as follows:

Subpart G--Criteria for Modifying the Secondary Treatment Requirements

Under Section 301(h) of the Clean Water Act

Sec.

125.56 Scope and purpose.

125.57 Law governing issuance of a section 301(h) modified permit.

125.58 Definitions.

125.59 General.

125.60 Primary or equivalent treatment requirements.

125.61 Existence of and compliance with applicable water quality

standards.

125.62 Attainment or maintenance of water quality which assures

protection of public water supplies; assures the protection and

propagation of a balanced, indigenous population of shellfish, fish,

and wildlife; and allows recreational activities.

125.63 Establishment of a monitoring program.

125.64 Effect of the discharge on other point and nonpoint sources.

125.65 Urban area pretreatment program.

125.66 Toxics control program.

125.67 Increase in effluent volume or amount of pollutants

discharged.

125.68 Special conditions for section 301(h) modified permits.

Appendix to Subpart G--Applicant Questionnaire for Modification of

Secondary Treatment Requirements

Subpart G--Criteria for Modifying the Secondary Treatment

Requirements Under Section 301(h) of the Clean Water Act

Sec. 125.56 Scope and purpose.

This subpart establishes the criteria to be applied by EPA in

acting on section 301(h) requests for modifications to the secondary

treatment requirements. It also establishes special permit conditions

which must be included in any permit incorporating a section 301(h)

modification of the secondary treatment requirements (``section 301(h)

modified permit'').

Sec. 125.57 Law governing issuance of a section 301(h) modified

permit.

(a) Section 301(h) of the Clean Water Act provides that:

Administrator, with the concurrence of the State, may issue a

permit under section 402 which modifies the requirements of

paragraph (b)(1)(B) of this section with respect to the discharge of

any pollutant from a publicly owned treatment works into marine

waters, if the applicant demonstrates to the satisfaction of the

Administrator that--

(1) There is an applicable water quality standard specific to

the pollutant for which the modification is requested, which has

been identified under section 304(a)(6) of this Act;

(2) The discharge of pollutants in accordance with such modified

requirements will not interfere, alone or in combination with

pollutants from other sources, with the attainment or maintenance of

that water quality which assures protection of public water supplies

and protection and propagation of a balanced indigenous population

of shellfish, fish, and wildlife, and allows recreational

activities, in and on the water;

(3) The applicant has established a system for monitoring the

impact of such discharge on a representative sample of aquatic

biota, to the extent practicable, and the scope of such monitoring

is limited to include only those scientific investigations which are

necessary to study the effects of the proposed discharge;

(4) Such modified requirements will not result in any additional

requirements on any other point or nonpoint source;

(5) All applicable pretreatment requirements for sources

introducing waste into such treatment works will be enforced;

(6) In the case of any treatment works serving a population of

50,000 or more, with respect to any toxic pollutant introduced into

such works by an industrial discharger for which pollutant there is

no applicable pretreatment requirement in effect, sources

introducing waste into such works are in compliance with all

applicable pretreatment requirements, the applicant will enforce

such requirements, and the applicant has in effect a pretreatment

program which, in combination with the treatment of discharges from

such works, removes the same amount of such pollutant as would be

removed if such works were to apply secondary treatment to

discharges and if such works had no pretreatment program with

respect to such pollutant;

(7) To the extent practicable, the applicant has established a

schedule of activities designed to eliminate the entrance of toxic

pollutants from nonindustrial sources into such treatment works;

(8) There will be no new or substantially increased discharges

from the point source of the pollutant to which the modification

applies above that volume of discharge specified in the permit;

(9) The applicant at the time such modification becomes

effective will be discharging effluent which has received at least

primary or equivalent treatment and which meets the criteria

established under section 304(a)(1) of this Act after initial mixing

in the waters surrounding or adjacent to the point at which such

effluent is discharged.

For the purposes of this section, the phrase ``the discharge of

any pollutant into marine waters'' refers to a discharge into deep

waters of the territorial sea or the waters of the contiguous zone,

or into saline estuarine waters where there is strong tidal movement

and other hydrological and geological characteristics which the

Administrator determines necessary to allow compliance with

paragraph (2) of this section, and section 101(a)(2) of this Act.

For the purposes of paragraph (9), ``primary or equivalent

treatment'' means treatment by screening, sedimentation, and

skimming adequate to remove at least 30 percent of the biological

oxygen demanding material and of the suspended solids in the

treatment works influent, and disinfection, where appropriate. A

municipality which applies secondary treatment shall be eligible to

receive a permit pursuant to this subsection which modifies the

requirements of paragraph (b)(1)(B) of this section with respect to

the discharge of any pollutant from any treatment works owned by

such municipality into marine waters. No permit issued under this

subsection shall authorize the discharge of sewage sludge into

marine waters. In order for a permit to be issued under this

subsection for the discharge of a pollutant into marine waters, such

marine waters must exhibit characteristics assuring that water

providing dilution does not contain significant amounts of

previously discharged effluent from such treatment works. No permit

issued under this subsection shall authorize the discharge of any

pollutant into saline estuarine waters which at the time of

application do not support a balanced indigenous population of

shellfish, fish, and wildlife, or allow recreation in and on the

waters or which exhibit ambient water quality below applicable water

quality standards adopted for the protection of public water

supplies, shellfish, fish, and wildlife or recreational activities

or such other standards necessary to assure support and protection

of such uses. The prohibition contained in the preceding sentence

shall apply without regard to the presence or absence of a causal

relationship between such characteristics and the applicant's

current or proposed discharge. Notwithstanding any other provisions

of this subsection, no permit may be issued under this subsection

for discharge of a pollutant into the New York Bight Apex consisting

of the ocean waters of the Atlantic Ocean westward of 73 degrees 30

minutes west longitude and northward of 40 degrees 10 minutes north

latitude.

(b) Section 301(j)(1) of the Clean Water Act provides that:

Any application filed under this section for a modification of

the provisions of--

(A) subsection (b)(1)(B) under subsection (h) of this section

shall be filed not later than the 365th day which begins after the

date of enactment of the Municipal Wastewater Treatment Construction

Grant Amendments of 1981, except that a publicly owned treatment

works which prior to December 31, 1982, had a contractual

arrangement to use a portion of the capacity of an ocean outfall

operated by another publicly owned treatment works which has applied

for or received modification under subsection (h) may apply for a

modification of subsection (h) in its own right not later than 30

days after the date of the enactment of the Water Quality Act of

1987.

(c) Section 22(e) of the Municipal Wastewater Treatment

Construction Grant Amendments of 1981, Public Law 97-117, provides

that:

The amendments made by this section shall take effect on the

date of enactment of this Act except that no applicant, other than

the city of Avalon, California, who applies after the date of

enactment of this Act for a permit pursuant to subsection (h) of

section 301 of the Federal Water Pollution Control Act which

modifies the requirements of subsection (b)(1)(B) of section 301 of

such Act shall receive such permit during the one-year period which

begins on the date of enactment of this Act.

(d) Section 303(b)(2) of the Water Quality Act, Public Law 100-4,

provides that:

Section 301(h)(3) shall only apply to modifications and renewals

of modifications which are tentatively or finally approved after the

date of the enactment of this Act.

(e) Section 303(g) of the Water Quality Act provides that:

The amendments made to sections 301(h) and (h)(2), as well as

provisions of (h)(6) and (h)(9), shall not apply to an application

for a permit under section 301(h) of the Federal Water Pollution

Control Act which has been tentatively or finally approved by the

Administrator before the date of the enactment of this Act; except

that such amendments shall apply to all renewals of such permits

after such date of enactment.

Sec. 125.58 Definitions.

For the purpose of this subpart:

(a) Administrator means the EPA Administrator or a person

designated by the EPA Administrator.

(b) Altered discharge means any discharge other than a current

discharge or improved discharge, as defined in this regulation.

(c) Applicant means an applicant for a new or renewed section

301(h) modified permit. Large applicants have populations contributing

to their POTWs equal to or more than 50,000 people or average dry

weather flows of 5.0 million gallons per day (mgd) or more; small

applicants have contributing populations of less than 50,000 people and

average dry weather flows of less than 5.0 mgd. For the purposes of

this definition the contributing population and flows shall be based on

projections for the end of the five-year permit term. Average dry

weather flows shall be the average daily total discharge flows for the

maximum month of the dry weather season.

(d) Application means a final application previously submitted in

accordance with the June 15, 1979, section 301(h) regulations (44 FR

34784); an application submitted between December 29, 1981, and

December 29, 1982; or a section 301(h) renewal application submitted in

accordance with these regulations. It does not include a preliminary

application submitted in accordance with the June 15, 1979, section

301(h) regulations.

(e) Application questionnaire means EPA's ``Applicant Questionnaire

for Modification of Secondary Treatment Requirements,'' published as an

appendix to this subpart.

(f) Balanced indigenous population means an ecological community

which:

(1) Exhibits characteristics similar to those of nearby, healthy

communities existing under comparable but unpolluted environmental

conditions; or

(2) May reasonably be expected to become re-established in the

polluted water body segment from adjacent waters if sources of

pollution were removed.

(g) Categorical pretreatment standard means a standard promulgated

by EPA under 40 CFR Chapter I, Subchapter N.

(h) Current discharge means the volume, composition, and location

of an applicant's discharge at the time of permit application.

(i) Improved discharge means the volume, composition, and location

of an applicant's discharge following:

(1) Construction of planned outfall improvements, including,

without limitation, outfall relocation, outfall repair, or diffuser

modification; or

(2) Construction of planned treatment system improvements to

treatment levels or discharge characteristics; or

(3) Implementation of a planned program to improve operation and

maintenance of an existing treatment system or to eliminate or control

the introduction of pollutants into the applicant's treatment works.

(j) Industrial discharger or industrial source means any source of

nondomestic pollutants regulated under section 307(b) or (c) of the

Clean Water Act which discharges into a POTW.

(k) Modified discharge means the volume, composition, and location

of the discharge proposed by the applicant for which a modification

under section 301(h) of the Act is requested. A modified discharge may

be a current discharge, improved discharge, or altered discharge.

(l) New York Bight Apex means the ocean waters of the Atlantic

Ocean westward of 73 degrees 30 minutes west longitude and northward of

40 degrees 10 minutes north latitude.

(m) Nonindustrial source means any source of pollutants which is

not an industrial source.

(n) Ocean waters means those coastal waters landward of the

baseline of the territorial seas, the deep waters of the territorial

seas, or the waters of the contiguous zone. The term ``ocean waters''

excludes saline estuarine waters.

(o) Permittee means an NPDES permittee with an effective section

301(h) modified permit.

(p) Pesticides means demeton, guthion, malathion, mirex,

methoxychlor, and parathion.

(q) Pretreatment means the reduction of the amount of pollutants,

the elimination of pollutants, or the alteration of the nature of

pollutant properties in wastewater prior to or in lieu of discharging

or otherwise introducing such pollutants into a POTW. The reduction or

alteration may be obtained by physical, chemical, or biological

processes, process changes, or by other means, except as prohibited by

40 CFR part 403.

(r) Primary or equivalent treatment for the purposes of this

subpart means treatment by screening, sedimentation, and skimming

adequate to remove at least 30 percent of the biochemical oxygen

demanding material and of the suspended solids in the treatment works

influent, and disinfection, where appropriate.

(s) Public water supplies means water distributed from a public

water system.

(t) Public water system means a system for the provision to the

public of piped water for human consumption, if such system has at

least fifteen (15) service connections or regularly serves at least

twenty-five (25) individuals. This term includes: (1) Any collection,

treatment, storage, and distribution facilities under the control of

the operator of the system and used primarily in connection with the

system, and (2) Any collection or pretreatment storage facilities not

under the control of the operator of the system which are used

primarily in connection with the system.

(u) Publicly owned treatment works or POTW means a treatment works,

as defined in section 212(2) of the Act, which is owned by a State,

municipality, or intermunicipal or interstate agency.

(v) Saline estuarine waters means those semi-enclosed coastal

waters which have a free connection to the territorial sea, undergo net

seaward exchange with ocean waters, and have salinities comparable to

those of the ocean. Generally, these waters are near the mouth of

estuaries and have cross-sectional annual mean salinities greater than

twenty-five (25) parts per thousand.

(w) Secondary removal equivalency means that the amount of a toxic

pollutant removed by the combination of the applicant's own treatment

of its influent and pretreatment by its industrial users is equal to or

greater than the amount of the toxic pollutant that would be removed if

the applicant were to apply secondary treatment to its discharge where

the discharge has not undergone pretreatment by the applicant's

industrial users.

(x) Secondary treatment means the term as defined in 40 CFR part

133.

(y) Shellfish, fish, and wildlife means any biological population

or community that might be adversely affected by the applicant's

modified discharge.

(z) Stressed waters means those ocean waters for which an applicant

can demonstrate to the satisfaction of the Administrator, that the

absence of a balanced indigenous population is caused solely by human

perturbations other than the applicant's modified discharge.

(aa) Toxic pollutants means those substances listed in 40 CFR

401.15.

(bb) Water quality criteria means scientific data and guidance

developed and periodically updated by EPA under section 304(a)(1) of

the Clean Water Act, which are applicable to marine waters.

(cc) Water quality standards means applicable water quality

standards which have been approved, left in effect, or promulgated

under section 303 of the Clean Water Act.

(dd) Zone of initial dilution (ZID) means the region of initial

mixing surrounding or adjacent to the end of the outfall pipe or

diffuser ports, provided that the ZID may not be larger than allowed by

mixing zone restrictions in applicable water quality standards.

Sec. 125.59 General.

(a) Basis for application. An application under this subpart shall

be based on a current, improved, or altered discharge into ocean waters

or saline estuarine waters.

(b) Prohibitions. No section 301(h) modified permit shall be

issued:

(1) Where such issuance would not assure compliance with all

applicable requirements of this subpart and part 122;

(2) For the discharge of sewage sludge;

(3) Where such issuance would conflict with applicable provisions

of State, local, or other Federal laws or Executive Orders. This

includes compliance with the Coastal Zone Management Act of 1972, as

amended, 16 U.S.C. 1451 et seq.; the Endangered Species Act of 1973, as

amended, 16 U.S.C. 1531 et seq.; and Title III of the Marine

Protection, Research and Sanctuaries Act, as amended, 16 U.S.C. 1431 et

seq.;

(4) Where the discharge of any pollutant enters into saline

estuarine waters which at the time of application do not support a

balanced indigenous population of shellfish, fish, and wildlife, or

allow recreation in and on the waters or which exhibit ambient water

quality below applicable water quality standards adopted for the

protection of public water supplies, shellfish, fish, and wildlife or

recreational activities or such other standards necessary to assure

support and protection of such uses. The prohibition contained in the

preceding sentence shall apply without regard to the presence or

absence of a causal relationship between such characteristics and the

applicant's current or proposed discharge; or

(5) Where the discharge of any pollutant is into the New York Bight

Apex.

(c) Applications. Each applicant for a modified permit under this

subpart shall submit an application to EPA signed in compliance with 40

CFR part 122, subpart B, which shall contain:

(1) A signed, completed NPDES Application Standard form A, parts I,

II, III;

(2) A completed Application Questionnaire;

(3) The certification in accordance with 40 CFR 122.22(d);

(4) In addition to the requirements of Sec. 125.59(c) (1) through

(3), applicants for permit renewal shall support continuation of the

modification by supplying to EPA the results of studies and monitoring

performed in accordance with Sec. 125.63 during the life of the permit.

Upon a demonstration meeting the statutory criteria and requirements of

this subpart, the permit may be renewed under the applicable procedures

of 40 CFR part 124.

(d) Revisions to applications. (1) POTWs which submitted

applications in accordance with the June 15, 1979, regulations (44 FR

34784) may revise their applications one time following a tentative

decision to propose changes to treatment levels and/or outfall and

diffuser location and design in accordance with Sec. 125.59(f)(2)(i);

and

(2) Other applicants may revise their applications one time

following a tentative decision to propose changes to treatment levels

and/or outfall and diffuser location and design in accordance with

Sec. 125.59(f)(2)(i). Revisions by such applicants which propose

downgrading treatment levels and/or outfall and diffuser location and

design must be justified on the basis of substantial changes in

circumstances beyond the applicant's control since the time of

application submission.

(3) Applicants authorized or requested to submit additional

information under Sec. 125.59(g) may submit a revised application in

accordance with Sec. 125.59(f)(2)(ii) where such additional information

supports changes in proposed treatment levels and/or outfall location

and diffuser design. The opportunity for such revision shall be in

addition to the one-time revision allowed under Sec. 125.59(d) (1) and

(2).

(4) POTWs which revise their applications must:

(i) Modify their NPDES form and Application Questionnaire as needed

to ensure that the information filed with their application is correct

and complete;

(ii) Provide additional analysis and data as needed to demonstrate

compliance with this subpart;

(iii) Obtain new State determinations under Secs. 125.61(b)(2) and

125.64(b); and

(iv) Provide the certification described in paragraph (c)(3) of

this section.

(5) Applications for permit renewal may not be revised.

(e) Submittal of additional information to demonstrate compliance

with Secs. 125.60 and 125.65. (1) On or before the deadline established

in paragraph (f)(3) of this section, applicants shall submit a letter

of intent to demonstrate compliance with Secs. 125.60 and 125.65. The

letter of intent is subject to approval by the Administrator based on

the requirements of this paragraph and paragraph (f)(3) of this

section. The letter of intent shall consist of the following:

(i) For compliance with Sec. 125.60: (A) A description of the

proposed treatment system which upgrades treatment to satisfy the

requirements of Sec. 125.60.

(B) A project plan, including a schedule for data collection and

for achieving compliance with Sec. 125.60. The project plan shall

include dates for design and construction of necessary facilities,

submittal of influent/effluent data, and submittal of any other

information necessary to demonstrate compliance with Sec. 125.60. The

Administrator will review the project plan and may require revisions

prior to authorizing submission of the additional information.

(ii) For compliance with Sec. 125.65: (A) A determination of what

approach will be used to achieve compliance with Sec. 125.65.

(B) A project plan for achieving compliance. The project plan shall

include any necessary data collection activities, submittal of

additional information, and/or development of appropriate pretreatment

limits to demonstrate compliance with Sec. 125.65. The Administrator

will review the project plan and may require revisions prior to

submission of the additional information.

(iii) POTWs which submit additional information must:

(A) Modify their NPDES form and Application Questionnaire as needed

to ensure that the information filed with their application is correct

and complete;

(B) Obtain new State determinations under Secs. 125.61(b)(2) and

125.64(b); and

(C) Provide the certification described in paragraph (c)(3) of this

section.

(2) The information required under this paragraph must be submitted

in accordance with the schedules in Sec. 125.59(f)(3)(ii). If the

applicant does not meet these schedules for compliance, EPA may deny

the application on that basis.

(f) Deadlines and distribution--(1) Applications.--(i) The

application for an original 301(h) permit for POTWs which directly

discharges effluent into saline waters shall be submitted to the

appropriate EPA Regional Administrator no later than December 29, 1982.

(ii) The application for renewal of a 301(h) modified permit shall

be submitted no less than 180 days prior to the expiration of the

existing permit, unless permission for a later date has been granted by

the Administrator. (The Administrator shall not grant permission for

applications to be submitted later than the expiration date of the

existing permit.)

(iii) A copy of the application shall be provided to the State and

interstate agency(s) authorized to provide certification/concurrence

under Secs. 124.53 through 124.55 on or before the date the application

is submitted to EPA.

(2) Revisions to Applications. (i) Applicants desiring to revise

their applications under Sec. 125.59 (d)(1) or (d)(2) must:

(A) Submit to the appropriate Regional Administrator a letter of

intent to revise their application either within 45 days of the date of

EPA's tentative decision on their original application or within 45

days of November 26, 1982, whichever is later. Following receipt by EPA

of a letter of intent, further EPA proceedings on the tentative

decision under 40 CFR part 124 will be stayed.

(B) Submit the revised application as described for new

applications in Sec. 125.59(f)(1) either within one year of the date of

EPA's tentative decision on their original application or within one

year of November 26, 1982, if a tentative decision has already been

made, whichever is later.

(ii) Applicants desiring to revise their applications under

Sec. 125.59(d)(3) must submit the revised application as described for

new applications in Sec. 125.59(f)(1) concurrent with submission of the

additional information under Sec. 125.59(g).

(3) Deadline for additional information to demonstrate compliance

with Secs. 125.60 and 125.65.

(i) A letter of intent required under Sec. 125.59(e)(1) must be

submitted by the following dates: for permittees with 301(h)

modifications or for applicants to which a tentative or final decision

has been issued, November 7, 1994; for all others, within 90 days after

the Administrator issues a tentative decision on an application.

Following receipt by EPA of a letter of intent containing the

information required in Sec. 125.59(e)(1), further EPA proceedings on

the tentative decision under 40 CFR part 124 will be stayed.

(ii) The project plan submitted under Sec. 125.59(e)(1) shall

ensure that the applicant meets all the requirements of Secs. 125.60

and 125.65 by the following deadlines:

(A) By August 9, 1996 for applicants that are not grandfathered

under Sec. 125.59(j).

(B) At the time of permit renewal or by August 9, 1996, whichever

is later, for applicants that are grandfathered under Sec. 125.59(j).

(4) State determination deadline. State determinations, as required

by Secs. 125.61(b)(2) and 125.64(b) shall be filed by the applicant

with the appropriate Regional Administrator no later than 90 days after

submission of the revision to the application or additional information

to EPA. Extensions to this deadline may be provided by EPA upon

request. However, EPA will not begin review of the revision to the

application or additional information until a favorable State

determination is received by EPA. Failure to provide the State

determination within the timeframe required by this paragraph (f)(4) is

a basis for denial of the application.

(g)(1) The Administrator may authorize or request an applicant to

submit additional information by a specified date not to exceed one

year from the date of authorization or request.

(2) Applicants seeking authorization to submit additional

information on current/modified discharge characteristics, water

quality, biological conditions or oceanographic characteristics must:

(i) Demonstrate that they made a diligent effort to provide such

information with their application and were unable to do so, and

(ii) Submit a plan of study, including a schedule, for data

collection and submittal of the additional information. EPA will review

the plan of study and may require revisions prior to authorizing

submission of the additional information.

(h) Tentative decisions on section 301(h) modifications. The

Administrator shall grant a tentative approval or a tentative denial of

a section 301(h) modified permit application. To qualify for a

tentative approval, the applicant shall demonstrate to the satisfaction

of the Administrator that it is using good faith means to come into

compliance with all the requirements of this subpart and that it will

meet all such requirements based on a schedule approved by the

Administrator. For compliance with Secs. 125.60 and 125.65, such

schedule shall be in accordance with Sec. 125.59(f)(3)(ii).

(i) Decisions on section 301(h) modifications. (1) The decision to

grant or deny a section 301(h) modification shall be made by the

Administrator and shall be based on the applicant's demonstration that

it has met all the requirements of Secs. 125.59 through 125.68.

(2) No section 301(h) modified permit shall be issued until the

appropriate State certification/concurrence is granted or waived

pursuant to Sec. 124.54 or if the State denies certification/

concurrence pursuant to Sec. 124.54.

(3) In the case of a modification issued to an applicant in a State

administering an approved permit program under 40 CFR part 123, the

State Director may:

(i) Revoke an existing permit as of the effective date of the EPA

issued section 301(h) modified permit; and

(ii) Cosign the section 301(h) modified permit if the Director has

indicated an intent to do so in the written concurrence.

(4) Any section 301(h) modified permit shall:

(i) Be issued in accordance with the procedures set forth in 40 CFR

part 124, except that, because section 301(h) permits may be issued

only by EPA, the terms ``Administrator or a person designated by the

Administrator'' shall be substituted for the term ``Director'' as

appropriate; and

(ii) Contain all applicable terms and conditions set forth in 40

CFR part 122 and Sec. 125.68.

(5) Appeals of section 301(h) determinations shall be governed by

the procedures in 40 CFR part 124.

(j) Grandfathering provision. Applicants that received tentative or

final approval for a section 301(h) modified permit prior to February

4, 1987, are not subject to Sec. 125.60, the water quality criteria

provisions of Sec. 125.62(a)(1), or Sec. 125.65 until the time of

permit renewal. In addition, if permit renewal will occur prior to

August 9, 1996, applicants may have additional time to come into

compliance with Secs. 125.60 and 125.65, as determined appropriate by

EPA on a case-by-case basis. Such additional time, however, shall not

extend beyond August 9, 1996. This paragraph does not apply to any

application that was initially tentatively approved, but as to which

EPA withdrew its tentative approval or issued a tentative denial prior

to February 4, 1987.

Sec. 125.60 Primary or equivalent treatment requirements.

(a) The applicant shall demonstrate that, at the time its

modification becomes effective, it will be discharging effluent that

has received at least primary or equivalent treatment.

(b) The applicant shall perform monitoring to ensure, based on the

monthly average results of the monitoring, that the effluent it

discharges has received primary or equivalent treatment.

(c)(1) An applicant may request that the demonstration of

compliance with the requirement under Sec. 125.60(b) to provide 30

percent removal of BOD be allowed on an averaging basis different from

monthly (e.g., quarterly), subject to the demonstrations provided in

paragraph (c)(2) of this section. If, however, the applicant has

demonstrated an ability to achieve 30 percent removal of BOD on a

monthly average basis over the calendar year prior to August 9, 1994,

the applicant shall not be eligible for an averaging basis longer than

monthly.

(2) If the Administrator is satisfied that the applicant has met

the eligibility requirement of paragraph (c)(1) of this section, the

Administrator may approve such requests if the applicant demonstrates

to the Administrator's satisfaction that:

(i) The applicant's POTW is adequately designed and well operated;

(ii) The applicant will be able to meet all requirements under

section 301(h) of the CWA and these subpart G regulations with the

averaging basis selected; and

(iii) The applicant cannot achieve 30 percent removal on a monthly

average basis because of circumstances beyond the applicant's control.

Circumstances beyond the applicant's control may include seasonally

dilute influent BOD concentrations due to relatively high (although

nonexcessive) inflow and infiltration; relatively high soluble to

insoluble BOD ratios on a fluctuating basis; or cold climates resulting

in cold influent. Circumstances beyond the applicant's control shall

not include less concentrated wastewater due to excessive inflow and

infiltration (I&I). The determination of whether the less concentrated

wastewater is the result of excessive I&I will be based on the

definition of excessive I&I in 40 CFR 35.2005(b)(16) plus the

additional criterion that inflow is nonexcessive if the total flow to

the POTW (i.e., wastewater plus inflow plus infiltration) is less than

275 gallons per capita per day.

(3) In no event shall averaging on a less frequent basis than

annually be allowed.

Sec. 125.61 Existence of and compliance with applicable water quality

standards.

(a) There must exist a water quality standard or standards

applicable to the pollutant(s) for which a section 301(h) modified

permit is requested, including:

(1) Water quality standards for biochemical oxygen demand or

dissolved oxygen;

(2) Water quality standards for suspended solids, turbidity, light

transmission, light scattering, or maintenance of the euphotic zone;

and

(3) Water quality standards for pH.

(b) The applicant must: (1) Demonstrate that the modified discharge

will comply with the above water quality standard(s); and

(2) Provide a determination signed by the State or interstate

agency(s) authorized to provide certification under Secs. 124.53 and

124.54 that the proposed modified discharge will comply with applicable

provisions of State law including water quality standards. This

determination shall include a discussion of the basis for the

conclusion reached.

Sec. 125.62 Attainment or maintenance of water quality which assures

protection of public water supplies; assures the protection and

propagation of a balanced indigenous population of shellfish, fish, and

wildlife; and allows recreational activities.

(a) Physical characteristics of discharge. (1) At the time the

301(h) modification becomes effective, the applicant's outfall and

diffuser must be located and designed to provide adequate initial

dilution, dispersion, and transport of wastewater such that the

discharge does not exceed at and beyond the zone of initial dilution:

(i) All applicable water quality standards; and

(ii) All applicable EPA water quality criteria for pollutants for

which there is no applicable EPA-approved water quality standard that

directly corresponds to the EPA water quality criterion for the

pollutant.

(iii) For purposes of paragraph (a)(1)(ii) of this section, a State

water quality standard ``directly corresponds'' to an EPA water quality

criterion only if:

(A) The State water quality standard addresses the same pollutant

as the EPA water quality criterion and

(B) The State water quality standard specifies a numeric criterion

for that pollutant or State objective methodology for deriving such a

numeric criterion.

(iv) The evaluation of comp

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