National Pollutant Discharge Elimination System Permit Application Requirements for Publicly Owned Treatment Works and Other Treatment Works Treating Domestic Sewage

SUMMARY: The Environmental Protection Agency (EPA) today proposes to

amend permit application requirements and application forms for

publicly owned treatment works (POTWs) and other treatment works

treating domestic sewage (TWTDS). TWTDS include facilities that

generate sewage sludge, provide commercial treatment of sewage sludge,

manufacture a product derived from sewage sludge, or provide disposal

of sewage sludge. Today's notice solicits public comments on the

proposed regulations, proposed forms and instructions.

The proposed regulations and Form 2A would replace existing

Standard Form A and Short Form A to account for changes in the NPDES

program since the forms were issued in 1973. This proposal would

consolidate POTW application requirements, including information

regarding toxics monitoring, whole effluent toxicity (WET) testing,

pretreatment facility and hazardous waste contributions, and combined

sewer overflows (CSOs). The most significant proposed revisions would

require toxic and WET monitoring by major and pretreatment POTWs and

monitoring of 17 parameters by minor POTWs. EPA believes this

information is needed in order for permitting authorities to issue

permits that will adequately protect the Nation's water resources.

The proposed regulations and Form 2S would replace the existing

Interim Sewage Sludge form. The most significant proposed revision

would require POTWs and other TWTDS to analyze sludge and provide data

for ten metals, nitrogen, and phosphorus. Class I sludge management

facilities (pretreatment POTWs) would also have to analyze for most of

the priority pollutants. The Interim Form only requires the use of

existing data. EPA believes the additional information is needed in

order for permitting authorities to issue permits that meet the

requirements of the sewage sludge use or disposal regulations.

The costs associated with the new requirements are not significant

since many permitting authorities require essentially the same

information already through a variety of reporting mechanisms. The

proposed rule allows waivers where information is already available to

the permitting authority. The new forms would make it easier for permit

applicants to provide the necessary information with their applications

and would minimize the need for additional follow-up information

requests from permitting authorities. The proposal is estimated to

reduce the current annual reporting and record keeping burden by about

9,000 hours, or ten percent. EPA is interested in identifying

additional ways to further reduce the burden associated with the

applications and is seeking comment on the use of electronic data

transmission and other streamlining opportunities.

DATES: In order to be considered, comments must be received on or

before March 5, 1996.

ADDRESSES: Comments should be addressed to Municipal and Sludge

Application Rule Comment Clerk, Water Docket MC-4101; United States

Environmental Protection Agency, 401 M Street SW., Washington, DC,

20460. Commenters are also requested to submit an original and 3 copies

of their written comments as well as an original and 3 copies of any

attachments, enclosures, or other documents referenced in the comments.

Commenters who want receipt of their comments acknowledged should

include a self-addressed, stamped envelope. All comments must be

postmarked or delivered by hand by March 5, 1996. No facsimiles (faxes)

will be accepted.

EPA will also accept comments electronically. Comments should be

addressed to the following Internet address: [email protected].

Electronic comments must be submitted as an ASCII file avoiding the use

of special characters and any form of encryption. Electronic comments

will be transferred into a paper version for the official record. EPA

will attempt to clarify electronic comments if there is an apparent

error in transmission. Comments provided electronically will be

considered timely if they are submitted electronically by 11:59 p.m.

(Eastern time) March 5, 1996. EPA is experimenting with electronic

commenting, therefore commenters may want to submit both electronic

comments and duplicate paper comments. This document has also been

placed on the Internet for public review and downloading at the

following location: gopher.epa.gov.

FOR FURTHER INFORMATION CONTACT: For information on Form 2A and

municipal wastewater permitting issues in this notice, contact George

Utting, (202) 260-9530, Permits Division (4203), United States

Environmental Protection Agency, 401 M Street S.W., Washington, D.C.,

20460.

For information on Form 2S and sewage sludge permitting issues in

this notice, contact Wendy Bell, (202) 260-9534, Permits Division

(4203), United States Environmental Protection Agency, 401 M Street

S.W., Washington, D.C., 20460.

SUPPLEMENTARY INFORMATION:

I. Background

A. Purpose of Today's Proposal

B. History of the NPDES Permit Program

1. National Pollutant Discharge Elimination System

a. Federal Water Pollution Control Act Amendments of 1972

b. Changes Leading to the Clean Water Act of 1977

c. Permit Consolidation and Deconsolidation

d. The Water Quality Act of 1987 and Water Quality-Based

Permitting

2. Background of the Pretreatment Program

3. Program to Control Combined Sewer Overflows

C. Sewage Sludge Program Background

1. Statutory Requirements for Sewage Sludge

2. Sewage Sludge Permit Program Regulations

3. Part 503 Technical Standards

4. Implementation of Part 503 Technical Standards

5. Interim Sewage Sludge Application Form

D. NPDES Watershed Strategy

E. Permit Writer's Information Needs Related to Endangered

Species and Historic Properties

F. Permit as a Shield

G. Pollutant Data from POTWs

H. Public Consultation in the Development of Today's Proposal

II. Approach Taken in Today's Notice

A. Scope of Today's Rulemaking

B. The Agency Proposes to Revise the Definition of POTW and

Existing Permit Application Requirements for POTWs

C. EPA Proposes Form 2A for POTWs to Replace Standard Form A and

Short Form A

D. Applicability of Form 2A to Privately Owned and Federally

Owned Treatment Works

E. EPA Proposes Revised Application Requirements and Form 2S for

Sewage Sludge Permits

F. Reasons for Separate Form 2A and Form 2S

G. EPA Solicits Comment on the Use of Electronic Application

Forms

III. Description of Proposed Requirements

A. EPA Proposes to Revise Requirements in Sec. 122.21(c), (d),

and (f) Concerning the Use of Forms 1, 2A, and 2S

[[Page 62547]]

1. Requirement to Submit Form 2A

2. Requirement to Submit Form 2S

B. Application Requirements for POTWs (40 CFR 122.21(j))

1. Basic Application Information

2. Information on Effluent Discharges

3. Effluent Monitoring for Specific Parameters

a. Pollutant Data Requirements for all POTWs

b. Reporting of Additional Pollutants for Some POTWs

4. Effluent Monitoring for Whole Effluent Toxicity

5. Industrial Discharges, Pretreatment, and RCRA/CERCLA Waste

6. Discharges from Hazardous Waste Sources

7. Combined Sewer Overflows

8. Contractors

9. Certification

C. Application Requirements for TWTDS (40 CFR 122.21(q))

1. Facility Information

2. Applicant Information

3. Permit Information

4. Federal Indian Reservations

5. Topographic Map

6. Sewage Sludge Handling

7. Sewage Sludge Quality

a. Class I Sludge Management Facilities

b. All TWTDS

8. Requirements for a Person Who Prepares Sewage Sludge

9. Land Application of Bulk Sewage Sludge

10. Surface Disposal

11. Incineration

12. Disposal in a Municipal Solid Waste Landfill

13. Contractors

14. Other Information

15. Signature

IV. Paperwork Reduction Act

V. Executive Order 12866

VI. Executive Order 12875

VII. Unfunded Mandates Reform Act of 1995 and Consultation with

State, Local, and Tribal Governments

VIII. Regulatory Flexibility Act

I. Background

A. Purpose of Today's Proposal

Today's notice proposes to amend NPDES permit application

regulations for publicly owned treatment works (POTWs) and other

treatment works treating domestic sewage (TWTDS). Proposed Form 2A

would apply to POTWs and replace Standard Form A and Short Form A,

which were developed in 1973. Proposed Form 2S would be used to report

sewage sludge information consistent with applicable permit program

regulations and technical standards for sewage sludge use or disposal.

Proposed Form 2S would be used by POTWs and other TWTDS.

EPA proposes these application regulations and forms for several

reasons. First, this rulemaking addresses changes to the NPDES program

since 1973. The NPDES program applicable to POTWs has changed

significantly since that time, specifically in the areas of toxics

control, water quality-based permitting and pretreatment programs.

Second, the proposal would consolidate application requirements from

existing regulations into a ``modular'' permit application form,

thereby streamlining and clarifying the process for permit applicants.

Third, these revisions will provide permit writers with the information

necessary to develop appropriate NPDES permits consistent with

requirements of the Clean Water Act and thus also help to ensure for

permittees the effectiveness of the permit as a shield for purposes of

compliance with the CWA. Fourth, the Agency seeks to reduce redundant

reporting by allowing waivers where information is already available to

the permitting authority and, further, to provide a platform for

electronic data transmission.

The proposed revisions would result in a net reduction in overall

reporting burden hours nationwide. The burden reduction for the

combined municipal and sludge proposed application requirements is

calculated to be nearly 9,000 hours annually, from a total existing

annual burden of 80,000 hours. This is due in part to the reduced

number of WET tests calculated to be performed by POTWs. It is also due

to the reduced number of major respondents that would be required to

comply with the proposed regulations as compared to the number of major

respondents estimated to complete the existing municipal application

forms (i.e., different criteria apply). Finally, the respondent burden

for CWA sec. 308 application requests also would be expected to

decrease, because much of the information currently obtained through

routine and medium sec. 308 requests is reflected in the proposed rule.

This burden reduction accounts for nearly 9,000 of the 287,000

hours projected to be saved, for an overall reduction of twenty-five

percent for the NPDES program. The total savings will be achieved

through revisions to this form, revisions to stormwater application

forms, revisions to the industrial application form 2C, and reductions

in discharge monitoring reports (DMRs). It is anticipated, however,

that most of the NPDES burden reduction will involve reduced burden for

DMRs, which currently account for greater than eighteen million annual

burden hours.

At the same time, this proposed rule would result in increased net

costs to municipal and sludge applicants of more than four million

dollars per year on a nationwide basis. It is calculated that this

proposal would apply to more than 7,000 permit applications per year,

with a total universe per year of more than three thousand applicants

each for municipal and sludge permitting. Costs vary considerably from

application to application. Thus, the average five-year cost per

application would range from an average of about $450 (less than $100

per year) for small municipalities to an average of about $4,000 (less

than $1,000 per year) for larger municipalities. Most of the costs

associated with this proposal would be due to proposed pollutant data

requirements for municipal permittees.

The Agency believes that the proposed increased costs are

appropriate because certain data may be necessary to the permit writer

in order to allow the issuance of permits that provide a ``shield'' to

permittees (see discussion, ``Permit as a Shield,'' at I.F.), and to

ensure compliance with Clean Water Act requirements, especially water

quality standards.

B. History of the NPDES Permit Program

1. National Pollutant Discharge Elimination System

a. Federal Water Pollution Control Act Amendments of 1972

The Clean Water Act (CWA) was enacted in 1972 (Federal Water

Pollution Control Act Amendments of 1972) to restore and maintain the

chemical, physical, and biological integrity of the Nation's waters.

CWA sec. 101(a), 33 U.S.C. 1251(a). The immediate predecessor to the

CWA was the Water Quality Act of 1965 (Pub. L. 89-234). The 1965 Act

directed each State to develop water quality standards for all

interstate navigable waters. States had difficulty developing these

standards, however, and by 1971 barely half the States had developed

complete programs. States that did develop standards had difficulty

implementing them because the 1965 Act lacked a workable mechanism for

translating State water quality standards into limits enforceable

against individual dischargers.

In response to this dilemma, Congress passed the CWA. Section 402

directed EPA to assume a substantial role in directing and defining the

nation's water pollution control programs. The Act established the

National Pollutant Discharge Elimination System (NPDES) permit program

to be administered by EPA and the States with EPA approval. The NPDES

program prohibits the discharge of any pollutant into waters of the

United States except when

[[Page 62548]]

authorized by a permit (sec. 301(a) and 402).

Section 301 significantly changed the methods used to set and

enforce standards to abate and control water pollution. First, it

introduced the concept of minimum technology-based discharge

requirements. Initially, sec. 301(b)(1)(B) required POTWs to achieve

effluent limitations based on secondary treatment. The ``degree of

effluent reduction achievable through application of secondary

treatment'' was to be defined by the Administrator, pursuant to sec.

304(d)(1). Later, POTWs were to achieve a more stringent level of

technology-based discharge limits based on best practicable waste

treatment technology (BPWTT) under sec. 301(b)(2)(B). That section was

repealed in 1981. Finally, POTWs were required to comply with any more

stringent limitations necessary to implement any applicable State water

quality standards. Water quality-based discharge limitations were

imposed by sec. 301(b)(1)(C).

To achieve the effluent reductions called for in sec. 301, sec. 402

provides for the NPDES permit program to implement and enforce these

controls. NPDES permits may be issued on the condition that authorized

discharges meet the applicable requirements of the CWA, including:

technology-based limitations; water quality-based limitations; new

source performance standards; toxic and pretreatment effluent

standards; inspection and monitoring provisions; and ocean discharge

criteria. EPA was authorized to issue regulations to implement these

provisions throughout the CWA. NPDES permit requirements are based

either on regulations promulgated under these sections or, in the

absence of regulations, on the permit writer's best professional

judgment (BPJ), when necessary to carry out the provisions of the CWA.

CWA sec. 402(a)(1), 33 U.S.C. 1342(a)(1). The CWA also authorized

States to assume responsibility for issuing NPDES permits, provided

that State programs meet the requirements of sec. 402(b) and

regulations published under sec. 304(i)(2) (previously, sec.

304(h)(2)). EPA promulgated the original regulations outlining the

NPDES program on December 22, 1972 (37 FR 28390) and May 22, 1973 (38

FR 13528).

The CWA required the Administrator to promulgate guidelines for

``establishing uniform application forms and other minimum requirements

for the acquisition of information'' from point sources, within 60 days

after its enactment. CWA sec. 304(i)(1) (previously, sec. 304(h)(1)).

EPA promulgated short forms to enable dischargers to meet deadlines

imposed by the CWA, on February 27, 1973 (38 FR 5279). These included

Short Form A, which was to be completed by all POTWs. EPA promulgated

standard forms to gather additional information from certain

dischargers, on July 24, 1973 (38 FR 19894). This rule included

Standard Form A, for POTWs meeting certain criteria relating to size,

population, and industrial contributions. At the time, there were no

effluent standards for POTWs. Secondary treatment regulations, setting

limits for biochemical oxygen demand, suspended solids, fecal coliform,

and pH, were not promulgated until August 17, 1973 (38 FR 22298).

b. Changes leading to the Clean Water Act of 1977

The first major change in the NPDES program's focus was the shift

from conventional to toxic pollutants. Though sec. 307(a) required EPA

to identify and establish effluent standards for toxic pollutants, the

thrust of the ``first round'' of NPDES permits was to control

conventional pollutants, rather than to identify and establish

standards for toxic pollutants. As the NPDES program was implemented,

several interested parties criticized the Agency's lack of progress in

establishing sec. 307(a) standards. Among the terms in settlement of

litigation in 1976, EPA was to establish technology-based standards as

necessary to address 65 compounds or classes of compounds for certain

industries. See NRDC v. EPA, 8 E.R.C. 2120 (D.D.C. 1976). This list of

65 compounds is now contained in 40 CFR 401.15.

In 1977, amendments to the Clean Water Act refocused Agency

priorities on the control of toxic pollutants. As a result, the NPDES

program expanded beyond control of conventional pollutants to control

of nonconventional pollutants, such as ammonia, chlorine, and nitrogen,

as well as certain metals and organic chemicals. The list of the 65

compounds was incorporated into sec. 307 when the CWA was amended in

1977 (see Committee Print Number 95-32, Hearings before the

Subcommittee on Investigations and Review of the Committee on Public

Works and Transportation, U.S. House of Representatives, pages 399-405)

and subsequently was published on January 31, 1978 (43 FR 4109). The

compounds on the list were chosen according to various criteria,

including known occurrence in point source effluents and substantial

evidence of carcinogenicity in studies of humans or animal systems.

Because the list included broad categories or classes of chemicals

(e.g., chlorinated benzenes, DDT and metabolites, haloethers, etc.),

EPA restructured the list in order to evaluate and control the specific

pollutants of greatest concern. This produced a list of 129 individual

high priority toxic pollutants. As information became available

regarding the toxic effects of chemicals on the list, the Agency

amended the regulations to establish the current list of 126 ``priority

pollutants.'' See 40 CFR Part 423, Appendix A. The 1977 amendments also

amended sec. 402(b)(8)&(9) to require that approved State NPDES

programs provide for administration of the pretreatment program to

regulate industrial users of POTWs.

In 1979, EPA extensively revised the NPDES regulations to implement

changes in the CWA, to conform to recent court decisions, and to

clarify and improve existing procedures. The 1979 regulatory revisions

eliminated duplication of substantive and procedural requirements

between the existing State and Federal NPDES program regulations. Under

the final regulations, promulgated on June 7, 1979 (44 FR 32854), the

basic substantive and procedural requirements applicable to all NPDES

permits were set out in Parts 122 and 124. Part 123 established State

NPDES permit program requirements. EPA believed that this new

regulatory structure would simplify the regulations and avoid

inconsistencies between State and Federal programs. These regulations

were challenged judicially and, as discussed below, petitions for

review were merged with and resolved in litigation challenging the

consolidated permit regulations and subsequent rulemakings.

c. Permit Consolidation and Deconsolidation

To simplify permitting programs, EPA published regulations on May

19, 1980 (45 FR 33290), to consolidate the requirements and procedures

for five of the permit programs administered by the Agency: the NPDES

program, the Underground Injection Control (UIC) program under the Safe

Drinking Water Act (SDWA), State ``dredge or fill'' programs under sec.

404 of the CWA, the Hazardous Waste Management (HWM) program under the

Resource Conservation and Recovery Act (RCRA), and the Prevention of

Significant Deterioration (PSD) program under the Clean Air Act. The

Agency believed it would be efficient to consolidate environmental

permitting programs wherever feasible. This effort sought to

[[Page 62549]]

eliminate gaps and overlaps and ensure consistency among the programs.

At the same time, EPA revised certain of the permit application

regulations. The Agency created three new application forms: Form 1,

Form 2B, and Form 2C. Form 1 requires general information about permit

applicants and was required to be completed by applicants for each of

the five types of permits under the consolidated permit rule. Form 2B

is specific to part of the NPDES program, specifically, permit

applications for concentrated animal feeding operations and aquatic

animal production dischargers. Form 2C, also specific to the NPDES

program, applies to manufacturing, commercial, mining, and

silvicultural operations. All three forms incorporated EPA's emphasis

on toxic pollutants and other modifications to the CWA and NPDES

program regulations.

Following promulgation of the consolidated permit regulations,

interested parties complained that the consolidated format made the

regulations unnecessarily difficult to use. The division of

responsibilities among various entities at the State and Federal levels

resulted in additional problems. In practice, consolidated processing

of multiple permits was rare because the various permit programs

regulated different activities with different standards and thus

imposed different types of requirements on permittees. Subsequent

petitions for judicial review of various aspects of the consolidated

permit regulations were consolidated with pending petitions for review

of the June 7, 1979, final NPDES regulations in the United States Court

of Appeals for the District of Columbia Circuit.

As part of an agreement to resolve that litigation, and in response

to problems encountered by permit writers, EPA deconsolidated the five

permitting programs on April 1, 1983 (48 FR 14146). The NPDES

regulations remain in Part 122 (substantive permit requirements) and

Part 123 (State program requirements). Part 124 (common permitting

procedures) remains applicable to all of the programs. On September 1,

1983 (48 FR 39611), EPA promulgated additional revisions covering a

number of issues affecting the consolidated permit program.

After deconsolidation, the NPDES program continued to use Forms 1,

2B, and 2C. In 1984, EPA amended Form 2C to include toxic pollutant

sampling and, in 1986, promulgated two new NPDES forms: Form 2D, for

use by new manufacturing, commercial, mining and silvicultural

operations; and Form 2E, for use by facilities that do not discharge

process wastewater (51 FR 26982, July 28, 1986). The Agency did not,

however, revise either Standard Form A or Short Form A. Thus, these two

forms do not request information to reflect all of the CWA's current

requirements, including the emphasis on the control of toxic

pollutants.

d. The Water Quality Act of 1987 and Water Quality-Based Permitting

On February 4, 1987, the CWA was amended again by the Water Quality

Act (WQA) of 1987 (Pub. L. 100-4). The WQA included several provisions

that affect POTWs and other TWTDS. Statutory amendments included

requirements addressing sewage sludge, storm water, and water quality-

impaired streams. In response to the 1987 amendments, EPA published

technical revisions to amend the NPDES regulations on January 4, 1989

(54 FR 246). EPA promulgated final regulations for State sludge

management programs on May 2, 1989 (54 FR 18716). As part of the WQA

implementation effort, the Agency published rules implementing CWA sec.

304(l) and other changes to surface water toxics regulations on June 2,

1989 (54 FR 23868). This 1989 rulemaking recognized the Agency's

commitment to protect water quality through water quality-based

permitting.

The 1987 amendments provided that States were to adopt numeric

water quality criteria for the ``priority pollutants'' listed pursuant

to sec. 307(a)(1), if discharge of those pollutants could reasonably be

expected to interfere with a designated use under State water quality

standards. States were to adopt these criteria whenever they reviewed,

revised, or added new water quality standards. Subsequent review of all

States indicated that 43 States had adopted the criteria as required.

Fourteen States, however, were not fully in compliance with the 1987

amendments as of December 22, 1992. On that date, EPA promulgated

chemical-specific numeric criteria for those States, as necessary, to

comply with the CWA (57 FR 60848).

On July 22, 1994, EPA published its whole effluent toxicity (WET)

policy (59 FR 37494). The policy is intended (i) to promote uniform,

nationwide compliance with statutory and regulatory requirements for

the control of WET, and (ii) to assist permit writers in implementing

these requirements. The policy reflects EPA's experience in

implementing the 1989 water quality-based permitting regulations at 40

CFR 122.44(d). The WET policy provides for: evaluation of acute and

chronic WET water quality criteria attainment at the edge of the

respective mixing zones; review of all major dischargers for reasonable

potential to cause or contribute to exceedance of WET water quality

criteria; consideration of available WET testing data and other

information in evaluating whether a discharger has reasonable potential

to cause or contribute to exceedance of WET criteria; imposition of

effluent limitations to control WET upon finding reasonable potential

to cause or contribute to exceedance of WET criteria; imposition of WET

monitoring conditions where appropriate for dischargers that do not

have effluent limitations to control WET; schedules for compliance with

WET effluent limitations; application of water quality permitting

regulations to apply without regard to the pollutant(s) that may be

causing toxicity, including ammonia and chlorine; and application of

the water quality-based permitting regulations to all dischargers,

including POTWs.

2. Background of the Pretreatment Program

Congress recognized that regulating only those pollutant sources

discharging effluent directly into the nation's waters would not

achieve the CWA's goal to eliminate pollutant discharges. Consequently,

the CWA required EPA to promulgate nationally applicable pretreatment

standards that restrict the introduction of pollutants from industrial

users of POTWs, also called indirect dischargers.

EPA first issued pretreatment standards on November 8, 1973 (38 FR

30982). Following the 1977 CWA amendments, EPA revised those

regulations and issued the ``General Pretreatment Regulations for

Existing and New Sources of Pollution,'' on June 26, 1978 (43 FR

27736). The regulations were revised again on January 28, 1981 (46 FR

9439). As amended, the pretreatment regulations at 40 CFR Part 403

require that ``any POTW (or combination of POTWs operated by the same

authority) with design influent flow rates greater than five million

gallons per day (mgd) and receiving from industrial users pollutants

that pass through or interfere with the operation of the POTW''

establish pretreatment programs as part of its NPDES permit. In

addition, POTWs with design influent flow rates of less than five mgd

may be required to develop pretreatment programs if non-domestic wastes

cause upsets, sludge contamination, or violations of NPDES permit

conditions or if their industrial users are subject to national

pretreatment standards. EPA estimates

[[Page 62550]]

that 1,500 treatment facilities are required to administer such

pretreatment programs.

The National Pretreatment Program's primary goal is protection of

POTWs and the environment from the effects of discharges into municipal

sewerage systems. This protection is achieved principally through

regulating industrial users that discharge toxic pollutants or

unusually large amounts of conventional pollutants into municipal

systems. The General Pretreatment Regulations control pollutant

discharges into POTWs in several ways. First, prohibited discharge

standards apply to all industrial and commercial establishments

connected to POTWs. 40 CFR 403.5. These standards include general

prohibitions against the introduction of pollutants into POTW that may

pass through the POTW or interfere with the operations of the POTW, as

well as specific prohibitions relating to the introduction of

pollutants which have the potential to create hazards for the POTW,

such as heat, explosivity, and corrosivity. Second, categorical

pretreatment standards apply to discharges by industrial users in

specific industrial categories determined to be significant sources of

toxic pollutants. Categorical standards are designed to ensure that

wastewaters from direct and indirect industrial dischargers are subject

to similar levels of treatment.

Finally, 40 CFR 403.5(c) requires POTWs to develop and enforce

local limits designed to ensure that industrial users meet both the

general and specific prohibitions. Thus, local limits are intended to

ensure that POTWs are able to comply with NPDES limits, including

water-quality based standards. Local limits are Federally enforceable

pretreatment standards, as defined by sec. 307(d). In cases where local

limits are more stringent than categorical standards, the more

stringent limit applies and is enforceable as a Federal standard.

On July 24, 1990, EPA promulgated amendments to the NPDES and

General Pretreatment Regulations to reflect the findings of the

``Report to Congress on the Discharge of Hazardous Wastes to Publicly

Owned Treatment Works,'' also known as the Domestic Sewage Study (DSS)

(55 FR 18716). The rule contained a number of regulatory changes

intended to improve control of hazardous wastes discharged to POTWs,

including revisions to the application requirements for POTWs at 40 CFR

122.21(j). Paragraphs 122.21(j) (1)-(3) contain whole effluent toxicity

(WET) testing requirements, and paragraph 122.21(j)(4) requires POTWs

with approved pretreatment programs to submit a written technical

evaluation of the need to revise local limits. Today, EPA proposes to

revise the WET reporting requirements at Sec. 122.21(j) and to revise

the provision for the local limits technical evaluation by making this

a POTW pretreatment program requirement rather than an application

requirement based on concerns about the timing of such evaluations

relative to imposition of water quality-based effluent limitations in

POTW permits.

3. Program To Control Combined Sewer Overflows

Combined sewer systems (CSSs) are wastewater collection systems

that transport both sanitary wastewater and storm water to POTWs.

During dry weather, CSSs carry sanitary wastes, as well as industrial

and commercial discharges, to POTW treatment plants. In periods of

heavy wet weather flows, transported sewer waters can overflow the

regulator structures, which normally convey waste streams to the

treatment plant, and discharge into adjacent surface waters. These

discharges are called ``combined sewer overflows'' (CSOs). CSOs often

contain high levels of suspended solids, bacteria, pathogens, and, in

many instances, heavy metals and other toxic pollutants, floatables,

nutrients, oxygen-demanding materials, oil and grease, and other

contaminants.

CSOs are point source discharges subject to technology-based

treatment requirements and applicable water quality-based standards

through NPDES permits. Because they occur prior to the headworks of the

POTW treatment plant, these discharges are not considered discharges

from a POTW and, consequently, are not subject to secondary treatment

requirements.

In the United States, approximately 1,100 (mostly older)

municipalities have CSSs, with approximately 11,000 CSO outfalls that

periodically discharge untreated sewage, commercial and industrial

wastes, and storm water during wet weather events. Almost 85 percent of

these municipalities are located in the Northeast and Great Lakes

areas. Studies conducted in recent years reveal that CSO discharges are

a leading cause of reduced water quality, increased health risks,

degraded ecological conditions, and impaired beneficial uses within the

Nation's surface waters. Although pollutant concentrations in CSOs

frequently are lower than those in untreated average-flow municipal

wastewater (due to dilution occurring during high flows), CSOs often

result in large pollutant loadings within a short time, potentially

causing beach closures, shellfish bed closures, and fish kills.

In 1989, EPA published the National Combined Sewer Overflow Control

Strategy (54 FR 37370, Sept. 8, 1989). On April 19, 1994, EPA expanded

on the 1989 strategy by publishing the CSO Control Policy (59 FR

18688). The Policy was developed through negotiated dialogue with

State, environmental group, and municipal representatives. The Policy

explains EPA's expectations for control of CSOs under the CWA and

guides NPDES permitting authorities in issuing permits for CSO

discharges. The Policy outlines a phased approach to permitting

requirements. Under a Phase I permit, the permittee should document

implementation of the nine minimum control measures identified in the

Policy as minimum technology-based requirements established through

best professional judgment (BPJ) to minimize CSO discharges. The nine

minimum controls include review and modification of local pretreatment

programs to minimize CSO impacts on receiving waters; maximization of

flow to the POTW for treatment; control of solids and floatables; and

monitoring to characterize effectively CSO impacts and the efficacy of

CSO controls.

The nine minimum controls are measures that can generally be

implemented expeditiously to reduce CSOs and their effects on receiving

water quality. The Phase I permit should not only require

implementation of the nine minimum controls, but should also require

development of a long-term control plan. The long-term control plan

describes the long-term control strategy developed to ultimately result

in compliance with the requirements of the CWA (including attainment of

water quality standards). Under a Phase II permit, the permittee

implements the specific controls described in the long-term control

plan.

C. Sewage Sludge Program

1. Statutory Requirements for Sewage Sludge

In 1987, Congress amended sec. 405 to establish a comprehensive

sewage sludge control program. This program regulates the use and

disposal of sewage sludge by POTWs and by other treatment works

treating domestic sewage (TWTDS). Section 405 required EPA to develop

technical standards that would establish sewage sludge management

practices and acceptable levels of toxic pollutants in sludge.

Section 405 also provides that NPDES permits issued to TWTDS

contain requirements implementing the sewage

[[Page 62551]]

sludge standards, unless sewage sludge control requirements are

included in a permit issued under one of the following: Subtitle C of

the Solid Waste Disposal Act; Part C of the Safe Drinking Water Act;

the Marine Protection, Research, and Sanctuaries Act; the Clean Air

Act; or EPA-approved State programs that comply with sec. 405. EPA may

also issue ``sludge-only'' permits to TWTDS that are not otherwise

subject to the NPDES program or to the other permitting programs listed

above.

2. Sewage Sludge Permit Program Regulations

On May 2, 1989, EPA promulgated regulations establishing the legal

and programmatic framework for the National Sewage Sludge Program (54

FR 18716). Sewage sludge management provisions are to be incorporated

into EPA-issued permits or permits issued by a State under an EPA-

approved sewage sludge program. Sewage sludge information reporting

requirements were also added to the overall NPDES permit application

requirements of 40 CFR 122.21. The new regulations, however, neither

listed the specific sewage sludge information requirements nor provided

a form for reporting this information. Instead, the rulemaking cross-

referenced the existing State Sludge Management Program regulations in

Part 501 and required applicants to submit the information listed at

Sec. 501.15(a)(2). Paragraphs (i)-(v) of Sec. 501.15(a)(2) require

information on the location and permitting status of the TWTDS.

Paragraphs (vi)-(xii) require technical information on the applicant's

sewage sludge use or disposal practice(s).

On February 19, 1993, EPA amended the sewage sludge permit program

regulations (58 FR 9404). This amendment phased in requirements for

submitting sewage sludge permit application information. Any TWTDS that

is required to have, or that requests, site-specific pollutant limits

was required to submit permit application information by August 18,

1993, for the first round of Part 503 standards. Other TWTDS with NPDES

permits must submit application information with their next NPDES

permit applications. Finally, TWTDS without NPDES permits (``sludge-

only facilities'') were to submit identification and screening

information to the permitting authority by February 19, 1994, for the

first round of Part 503 standards.

3. Part 503 Technical Standards

On November 25, 1992, EPA promulgated the sewage sludge use and

disposal standards required by section 405 of the CWA (58 FR 9248, et

seq., February 19, 1993). These standards regulate the use and disposal

of sewage sludge when it is applied to land, placed on a surface

disposal site (including sludge-only landfills), fired in a sewage

sludge incinerator, or sent to a municipal solid waste landfill

(MSWLF). The standards for each regulated sewage sludge use or disposal

method consist of general requirements, pollutant limits, management

practices, operational standards, and requirements for monitoring,

recordkeeping, and reporting. A number of parties petitioned for review

of the regulations and on November 15, 1994, the United States Court of

Appeals for the District of Columbia Circuit remanded several aspects

of the regulations for modification or additional justification.

Leather Industries of America, Inc. v. Environmental Protection Agency,

40 F.3d 392 (D.C. Cir. 1994).

4. Implementation of Part 503 Technical Standards

Section 405(f) of the CWA requires that permits issued to

facilities involved in sewage sludge generation, treatment, or disposal

include Part 503 requirements. Both POTWs and other TWTDS are engaged

in sewage sludge generation, treatment, or disposal. However, some of

these facilities are not required to obtain NPDES discharge permits

pursuant to sec. 402 of the CWA because they do not discharge

pollutants to surface waters. These are ``sludge-only'' facilities.

POTW permits must contain requirements implementing applicable Part

503 technical standards and other Part 122 permit conditions (such as

boilerplate conditions and compliance monitoring requirements). POTW

permits may also contain any other conditions the permitting authority

develops on a case-by-case basis to protect public health and the

environment. The permit also establishes a POTW's responsibilities for

sewage sludge it sends to other facilities for disposal.

In addition to POTWs, other TWTDS may also be issued permits. These

treatment works include facilities dedicated to sewage sludge disposal

(i.e., surface disposal sites and sewage sludge incinerators), as well

as certain facilities that provide treatment or otherwise change the

quality of the sewage sludge before ultimate use or disposal. Sewage

sludge has undergone a change in quality if its pollutant

concentrations, pathogen levels, or vector attraction properties have

been altered sufficiently to change the sludge's regulatory status

under Part 503. Therefore, processes such as stabilization, composting,

digestion, heat treatment, or blending with bulking agents or with

sewage sludge from another treatment works may all qualify as sewage

sludge treatment. (For a more detailed discussion of who must apply for

a permit, see the preamble to the May 2, 1989, regulations at 54 FR

18725.)

5. Interim Sewage Sludge Permit Application Form

On November 8, 1993, EPA published a notice about the interim

sewage sludge permit application form (58 FR 59260). This interim form

was developed to simplify the application process until Form 2S was

completed. Section 122.21(d)(3)(ii) requires sewage sludge permit

applications to include the information at Sec. 501.15(a)(2), which

includes both specific and general information. This interim form

ensures that permittees submit the necessary information; helps

permittees to understand exactly which requirements apply to them; and

makes the application requirements consistent for all permittees.

Proposed Form 2S is based on the interim application form. EPA

welcomes comments on the proposed Form 2S, especially from users of the

interim form.

D. NPDES Watershed Strategy

The Watershed Protection Approach is an Agency initiative which

promotes integrated solutions to address surface water, ground water,

and habitat concerns on a watershed basis. It represents EPA's renewed

emphasis on addressing all stressors within a hydrologically defined

drainage basin, instead of viewing individual pollutant sources in

isolation. It is not a new program competing with, or replacing,

existing programs; rather, it provides a management framework, within

which baseline CWA program requirements, related public health

concerns, and newer initiatives can be integrated to address

restoration and protection of aquatic ecosystems cost-effectively .

The Watershed Protection Approach has four components. First, it

focuses protection and restoration activities within a geographically

defined resource, the watershed. Second, it emphasizes the involvement

of all affected stakeholders within a watershed; these may include

Federal authorities, State governments, local governments, the

regulated community, environmental groups, and other interested

parties. Third, it stresses the need for appropriate stakeholders to

[[Page 62552]]

take comprehensive, integrated actions to address environmental

priorities. Finally, it promotes a regular effort to evaluate the

success of these actions in protecting and restoring the watershed.

The broad range of NPDES functions and activities gives the NPDES

program a key role in implementing the Watershed Protection Approach.

On March 21, 1994, the EPA Assistant Administrator for Water issued the

NPDES Watershed Strategy. The Strategy represents a first step toward

OW's goal of fully integrating the NPDES program into the broader

Watershed Protection Approach.

The Strategy outlines national objectives and implementation

activities: (1) to integrate NPDES program functions into the broader

Watershed Protection Approach; and (2) to support the development of

Statewide basin management approaches. To this end, the Strategy

identifies six areas that are considered essential for the Agency to

support these objectives:

Statewide Coordination--Support the development of Statewide basin

management frameworks, coordinate EPA Office of Water grants

application and reporting processes, and coordinate interstate basin

efforts to facilitate implementation of the Watershed Protection

Approach;

NPDES Permits--Implement a methodology for issuing NPDES permits on

a watershed basis and emphasize training on watershed protection.

Streamline the NPDES permit development, issuance, and review process.

Develop and implement innovative approaches to NPDES permitting on a

watershed basis, where feasible;

Monitoring and Assessment--Develop a Statewide monitoring strategy;

establish point source ambient monitoring requirements, where

appropriate, to facilitate the development of monitoring consortia and

individual monitoring efforts; and promote comparable data collection,

analysis, and utilization by all stakeholders;

Programmatic Measures and Environmental Indicators--Revise existing

national accountability measures to facilitate implementation of the

Watershed Protection Approach and establish new measures of success

that reflect assessment of progress toward short- and long-term

watershed protection goals;

Public Participation--Utilize existing NPDES public participation

process and development of basin-wide management plans to encourage

informed participation by watershed stakeholders, educate stakeholders

about watershed planning efforts, and seek broad public participation

in identifying local environmental goals; and

Enforcement--Include emphasis on minor facilities which are

discharging to priority basins, within the base national enforcement

program, and use 308 authorities, inspections and supplemental

environmental projects, where appropriate, to support watershed

protection activities.

The Agency views today's rulemaking as an opportunity to further

the objectives of the Watershed Protection Approach and the NPDES

Watershed Strategy. Both proposed Form 2A and proposed Form 2S request

information which support these objectives. These questions are

discussed in detail below. The Agency requests comment on what specific

additional changes might be made to proposed Form 2A and proposed Form

2S to support the Watershed Protection Approach.

E. Permit Writer's Information Needs Related to Endangered Species and

Historic Properties

EPA is considering whether the permit application regulations

should require permit applicants to provide available information

related to endangered species and historic properties. The Endangered

Species Act, 16 U.S.C. Sec. 1531 et seq., creates certain obligations

requiring the Agency to consult with other federal agencies (U.S. Fish

and Wildlife Service and National Marine Fisheries Services) when EPA

carries out, authorizes, or funds an action that may affect threatened

or endangered (``listed'') species. The National Historic Preservation

Act, 16 U.S.C. Sec. 470 et seq., creates certain obligations requiring

the Agency to consult with State officials (State Historic Preservation

Officers) and/or federal officials at the Advisory Council for Historic

Preservation in order for EPA to take into account the effect on

historic properties of an ``undertaking,'' as that term is defined by

the National Historic Preservation Act. EPA believes that the

collection of such information would be useful to regulatory officials

in considering permit applications for activities or undertakings that

may affect listed species or historic properties, respectively. Absent

information in the permit application, EPA may need to collect such

information on a case-by-case basis, which could delay the permit

issuance process in some instances.

EPA invites public comment on the information that could or should

be provided by the permit applicant. Specifically, if EPA established

permit application questions about listed species or historic

properties, what kind of information can or should the permit applicant

provide? Would it be appropriate to request that the permit applicant

identify whether there are known or suspected listed species, including

species proposed for listing and designated critical habitat, or

historic properties in the area of the POTW discharge (or sludge use or

disposal site by a TWTDS) that would be affected by that POTW discharge

(or sludge use or disposal by a TWTDS)? How could or should EPA provide

applicants with flexibility to assist regulatory officials in the

consideration of potential impacts of activities on listed species or

historic properties? Though EPA does not propose what type of

information related to endangered species or historic properties would

be sought in today's proposal, any such information collection requests

in the final regulation may affect the costs associated with complying

with the permit application regulations, both in terms of financial

cost and burden hours. EPA invites public comment on all aspects of

efficient federal permitting of POTWs (and TWTDS) consistent with

requirements of the Endangered Species Act and the National Historic

Preservation Act.

F. Permit as a Shield

Section 402(k) of the CWA, also known as the ``shield'' provision,

provides that compliance with an NPDES permit shall be deemed

compliance, for purposes of sec. 309 and 505 enforcement, with sec.

301, 302, 306, 307, and 403 of the CWA (except for any standard imposed

under sec. 307 for toxic pollutants injurious to human health). In

response to questions raised regarding EPA's interpretation of the

scope of the ``shield'' associated with NPDES permits under the CWA,

the Agency issued a policy statement on July 1, 1994, to describe the

Agency's current position on the scope of the authorization by EPA to

discharge under an NPDES permit and the shield thus associated with

permit authorization.

As part of an application for an individual NPDES permit, EPA

requires that an applicant provide certain information on its facility.

In the case of industrial permit application, this includes specific

information about the presence and quantity of a number of specific

pollutants in the facility's effluent, as well as general information

on all waste streams and operations contributing to the facility's

effluent and the treatment the wastewater receives. Present application

requirements for

[[Page 62553]]

municipal discharges focus primarily on the operation and treatment

processes at the municipal treatment works, although some quantitative

information is also required.

Historically, EPA has viewed the permit, together with material

submitted during the application process and information in the public

record accompanying the permit, as important bases for an authorization

to discharge under sec. 402 of the CWA. The availability of the sec.

402(k) shield is predicated upon the issuance of an NPDES permit and a

permittee's full compliance with all applicable application

requirements, any additional information requests made by the permit

authority and any applicable notification requirements under 40 CFR

Secs. 122.41(l) and 122.42, as well as any additional requirements

specified in the permit.

In the July 1, 1994, policy statement, the Agency explained that a

permit provides authorization and therefore a shield for the following

pollutants resulting from facility processes, waste streams and

operations that have been clearly identified in writing in the permit

application process when discharged from specified outfalls:

(1) Pollutants specifically limited in the permit or pollutants

which the permit, fact sheet, or administrative record explicitly

identify as controlled through indicator parameters (of course,

authorization is only provided to discharge such pollutants within the

limits and subject to the conditions set forth in the permit);

(2) Pollutants for which the permit authority has not established

limits or other permit conditions, but which are specifically

identified in writing as present in facility discharges during the

permit application process; and

(3) Pollutants not identified as present but which are constituents

of wastestreams, operations or processes that were clearly identified

during the permit application process (the permit, of course, may

explicitly prohibit or limit the scope of such discharges).

With respect to subparts 2 and 3 of the permit authorization

described above, the Agency recognizes that a discharger may make

changes to its permitted facility (which contribute pollutants to the

effluent at a permitted outfall) during the effective period of the

NPDES permit. Pollutants associated with these changes (provided they

are within the scope of the operations identified in the permit

application) are also authorized provided the discharger has complied

in a timely manner with all applicable notification requirements (see

40 CFR 122.41(l) and 122.42 (a) and (b)) and the permit does not

otherwise limit or prohibit such discharges. Section 122.42(b) requires

that POTWs must provide adequate notice, including information on the

quality and quantity of discharges to the POTW and anticipated impacts

on the quantity or quality of effluent discharged by the POTW, of new

introductions of pollutants by indirect dischargers into the POTW and

any substantial change in the volume or character of pollutants being

introduced by sources introducing pollutants into the POTW at the time

of permit issuance.

Notwithstanding any pollutants that may be authorized pursuant to

subparts 1 and 2 above, an NPDES permit does not authorize the

discharge of any pollutants associated with wastestreams, operations,

or processes which existed at the time of the permit application and

which were not clearly identified during the application process.

In the July 1994 policy statement, the Agency committed to revise

the NPDES permit application regulations for both municipal and

industrial discharges, so as to ensure that applicants would have the

responsibility to characterize more fully the nature of their effluents

and the contributions of their effluents to receiving waters. The

Agency stated that, in addressing this issue, it would review EPA's

position on the scope of the shield provided by sec. 402(k).

Generally, the discharger is in the best position to know the

nature of its discharge and potential sources of pollutants.

Consequently, requiring as full a disclosure as technically possible in

the permit application is one option EPA may want to consider in light

of the protection afforded the discharger by the permit shield.

However, in the case of POTWs, providing a permit shield only for

pollutant discharges fully and completely characterized in the permit

application could represent a significant burden on POTWs if they were

required to identify every pollutant discharged. This is so because of

the potential pollutant contribution into POTW sewer systems from

industrial users and residential dischargers. Narrowing the scope of

the shield and consequent expansion of potential liability would likely

raise the cost associated with the failure to anticipate, detect, and

provide information on these discharges.

The Agency has concerns that, using the current application form,

permitting authorities using the existing municipal application forms

may not always receive the information about an applicant's discharge

needed to develop permits consistent with the requirements of the CWA.

In today's proposed rule, the Agency is updating its POTW discharge

application requirements (proposed Form 2A and proposed Sec. 122.21(j))

to provide more information to permit writers and to streamline the

permitting process by ensuring that the information needed from most

applicants is consolidated onto a single application form. The Agency

solicits comment on whether the proposal adequately addresses these

concerns. Moreover, EPA is seeking the public's views on how to strike

the proper balance between the need for environmental protection,

incentives to ensure adequate disclosure, and the discharger's need for

certainty that its conduct meets legal requirements.

The Agency also specifically requests comment on adding additional

application requirements that would make applicants responsible for

providing more information than that specified on the form. For

example, the Agency is considering adding a question asking whether the

POTW has any other information on pollutants not otherwise requested on

the form. The Agency is also considering whether to ask whether the

POTW has any information on adverse impacts on water quality, such as

information concerning beach closings, citizen complaints, or fish

kills. In providing comments on such questions, commenters should state

whether they would have a chilling effect on--that is, might tend to

inhibit--the activities of POTWs already participating, for example, in

ambient monitoring. Comment is also requested on the extent to which

such information is already available to permitting authorities.

G. Pollutant Data from POTWs

In preparing options for pollutant data collection for today's

proposed rule, the Agency sought to identify relevant pollutant data

records for reference. In so doing, the Agency reviewed POTW effluent

``priority pollutant scan'' data from EPA Region VI and from North

Carolina. These data represented data from samples of the effluents of

several hundred POTWs with a design flow greater or equal to one (1.0)

mgd (i.e., ``major'' POTWs). Although the information requested by the

Region and State differed in some respects, each required major POTWs

to report on all ``priority pollutants'' (i.e., the pollutants listed

in 40 CFR Part 122, Appendix D, Tables II and III). The Agency compiled

this information in a database, and analyzed it to determine the

pollutants most frequently detected in these effluents.

The Agency concluded that, although this survey was not conducted

based on

[[Page 62554]]

statistical methodologies, it was possible to discern certain general

patterns in the incidence of pollutants reported. Our review of Region

VI and North Carolina data indicated that over 90% of 300 POTWs sampled

reported at least one of the chemicals listed in Appendix D, Table III.

Copper and zinc each appeared in two-thirds of all the POTWs surveyed;

lead and nickel each appeared in about thirty percent of the effluents

sampled; antimony, arsenic, cadmium, and silver each appeared in more

than fifteen percent of facilities; and mercury and cyanide each

appeared in slightly fewer than fifteen percent. Certain volatile

organics (i.e., THMs) each appeared in roughly a quarter or more of the

POTWs sampled; and certain base neutral compounds (i.e., pthalate

esters) each showed up in ten to twenty percent of POTWs. Finally, only

a few of the pesticides listed in Appendix D, Table II were reported in

a small number of these scans.

While this information was not determinative in the Agency's

decisions about what to include on the forms, it was consistent with

other information provided, and supported some of the Agency's

assumptions articulated elsewhere in this preamble concerning the

appropriate pollutant test data to require from major POTWs. Notably

lacking, however, were data on discharges from ``minor'' POTWs (those

with a design flow of less than one (1.0) mgd). The Agency is seeking

information concerning the discharges from minor POTWs and intends to

collect such information between this proposal and the final rule that

will provide a basis for determining the appropriate sampling

requirements for those POTWs.

H. Public Consultation in the Development of Today's Proposal

In the course of developing today's proposed rule, EPA made efforts

to consult with interested stakeholders in the application process. In

late 1993 and early 1994, the Agency sought feedback on draft forms and

other elements of the proposal from States with approved NPDES

programs, local governments, the Association of State and Interstate

Water Pollution Control Administrators (ASIWPCA), the Association of

Metropolitan Sewerage Agencies (AMSA), the California Association of

Sanitation Agencies (CASA), the Water Environment Federation (WEF), and

several environmental groups. In response to this outreach effort, the

Agency received written comments from a dozen States, several

municipalities, and from AMSA. Agency representatives also met with

State and municipal representatives and conducted a conference call

through WEF.

With respect to the POTW wastewater discharge application, the

Agency was particularly interested in issues relating to pollutant data

collection. The Agency indicated that it was considering a tiered

approach, based upon POTW size and the level of industrial contribution

(i.e., whether the POTW was required to implement a local pretreatment

program). Most commenters generally supported the idea of a tiered

approach (i.e., that the Agency not require the same information from

all POTWs). The Agency received an array of suggestions concerning what

pollutant data should be required. Among the concerns raised by

commenters were the following: ease of completion; flexible

implementation by States; reduced pollutant data requirements;

sensitivity to impacts on small municipalities; and elimination of

redundant reporting. In addition, the Agency received numerous

technical comments concerning various details of the information to be

reported.

In response, the Agency has made changes to the proposed rule to

provide a user-friendly modular design for the forms and has revised

its initial approach to municipal pollutant data collection for this

proposal. The Agency's proposed approach to pollutant data collection

would limit pollutant data requests to those pollutants of greatest

concern and would require less pollutant data from smaller

municipalities. However, the Agency is still considering several

options concerning the amount of pollutant data to be provided,

including options that would require minor POTWs to provide sampling

data on metals, some organic compounds, and whole effluent toxicity.

With respect to the sludge application, the Agency was interested

in the type and amount of pollutant data currently requested by States.

Responses showed variation among States. Comments were also received

that questioned the need for some of the information to be collected by

Form 2S. The Agency has removed some questions that it agrees are not

necessary for sludge permit applications. The Agency also requests

comment on several options for pollutant data collection.

Finally, the Agency proposes to allow the use of existing data and

to reduce redundant reporting by allowing permitting authorities to

waive reporting of information to which they have direct access. This

proposal is discussed in more detail in those portions of the preamble

which focus on the relevant provisions of the proposed rule. The Agency

also solicits comments on alternative considerations specifically

addressed to pollutant data submission and industrial user information.

II. Approach Taken in Today's Notice

A. Scope of Today's Rulemaking

Today's notice proposes two sets of NPDES application requirements

and a corresponding permit application form, together with

instructions, for each. Proposed Sec. 122.21(j) contains application

requirements pertaining to wastewater treatment and discharge at

publicly owned treatment works (POTWs), and would require that

applicants submitting this information to EPA use new Form 2A. Proposed

Sec. 122.21(q) contains application requirements pertaining to

generation, treatment, and disposal of sewage sludge at POTWs and other

treatment works treating domestic sewage, and would require that

applicants submitting applications to EPA use new Form 2S.

The proposed forms would be used both by EPA and by approved NPDES

States that choose to adopt these forms. Approved States could also

elect to use forms of their own design so long as the information

requested includes at least the information required by the final

NPDES/sludge regulations. EPA and State NPDES authorities may request

additional information from permit applicants whenever necessary to

establish appropriate permit limits and conditions. CWA sec. 308.

The proposed forms and instructions for each form are included with

today's proposed rule as an appendix to the rulemaking package. EPA is

not intending to publish the forms and instructions with the final

rule, so as to reduce the length of the Federal Register notice for the

final rulemaking, and solicits comment on this issue.

B. The Agency Proposes to Revise the Definition of POTW and Existing

Permit Application Requirements for POTWs

Today, EPA proposes to revise the definition of the term ``POTW,''

as defined in 40 CFR Part 122 to conform more exactly with the

definition of the term at 40 CFR Part 403. ``POTW'' is defined at 40

CFR 403.3 as ``a treatment works . . . which is owned by a State or

municipality.'' This definition includes devices and systems used in

the storage, treatment, recycling, and reclamation of municipal sewage

or industrial wastes of a liquid nature, as well as sewers, pipes, and

other conveyances that carry wastewater to a

[[Page 62555]]

POTW treatment plant. As defined, the term ``POTW'' also refers to the

municipality that has jurisdiction over the discharges to and from such

a treatment plant. In today's proposed rule, the Agency proposes to

revise the definition of POTW in Part 122 so as to be consistent with

the more commonly understood definition located in Part 403.

The Agency's intention is to simplify and clarify, though EPA

recognizes that any change may create unanticipated confusion. The

Agency solicits comments on effects on conforming the Part 122

definition with the Part 403 definition. Specifically, the Agency is

interested in the extent the change would affect: implementation of the

Combined Sewer Overflow policy; regulatory consideration of sanitary

sewer overflows; and implementation and applicability of the NPDES and

pretreatment programs to sewerage collection systems that are not

owned/operated by the owner/operator of the treatment plant to which

collected waste waters are transported.

The Agency proposes to revise whole effluent toxicity testing

requirements found in the existing POTW permit application regulations

at Sec. 122.21(j). Under existing Sec. 122.21(j) (1)-(3), a POTW must

provide the results of whole effluent biological toxicity testing as

part of its NPDES permit application, if the POTW has a design flow

equal to or greater than one million gallons per day; if it has (or is

required to have) an approved pretreatment program; or if it is

required to report by the Director (NPDES State Program Director or EPA

Regional Administrator). The Agency proposes to revise this requirement

to reflect Agency guidance and policy, as well as practical experience

in implementing existing requirements, as set forth at proposed

Sec. 122.21(j)(4).

The Agency proposes to change the pretreatment requirement for

local limit calculations from an application requirement to a permit

requirement. Under existing Sec. 122.21(j)(4), any POTW with an

approved pretreatment program must provide a written technical

evaluation of the need to revise local limits under 40 CFR 403.5(c)(1).

The existing provision requires that the local limits evaluation be

done prior to permit issuance. This has generated feedback from States

and municipalities that it would be better to require the evaluation

after permit issuance, so as to avoid the need for a second technical

evaluation if the POTW's permit limits are revised in the new permit.

In response to these concerns, the Agency proposes to change this from

an application requirement to a POTW pretreatment program requirement,

at proposed Sec. 403.8(f)(4)(B).

C. EPA Proposes Form 2A for POTWs to Replace Standard Form A and Short

Form A

Today EPA proposes a new NPDES application form, Form 2A, for

POTWs. Currently, POTWs may be required to submit one of two forms,

depending on the size of the POTW. While both of these forms are

approved Federal forms, the NPDES regulations do not require use of the

forms by POTWs when applying for a permit. Standard Form A is intended

to be used by all POTWs with a design flow equal to or exceeding one

million gallons per day. Standard Form A contains questions about the

facility and collection system, discharges to and from the facility

(including information on some specific pollutant parameters), and

scheduled improvements and schedules of implementation. Short Form A is

intended for use by all POTWs with a design flow of less than one

million gallons per day. Short Form A contains only fifteen questions

of a summary nature, and asks for virtually no information on specific

pollutants. Many States use one or both of the Federal forms, but a

number of States have developed State forms that request information

not included on the Federal forms.

EPA proposes to replace both Standard Form A and Short Form A with

a single Form 2A, subdivided into two parts, titled ``Basic Application

Information'' and ``Supplemental Application Information''. Basic

application information would include information about the collection

system and the treatment plant, general information concerning the

types of discharges from the treatment plant, identification of

outfalls, certain effluent characteristics, and scheduled improvements.

The Agency believes that a separate short form for all minor POTWs is

no longer appropriate, because in order to establish adequate permit

limits, information such as that mentioned above must be collected from

all POTWs, regardless of size.

On the other hand, the Agency recognizes the need to be selective

in requiring further additional information. For this reason, the

Agency has divided the proposed form into two parts. To limit the

reporting burden for smaller POTWs without significant industrial

contributions, EPA proposes to require effluent monitoring data for 17

parameters from POTWs with design flows less than one million gallons

per day (mgd) and without pretreatment programs. These 17 parameters

consist mostly of conventional and nonconventional pollutants. Larger

POTWs and pretreatment POTWs, by comparison, would be required to

report effluent monitoring data for metals and organic compounds as

well as the 17 parameters required for smaller POTWs. Thus, the Basic

Application Information part of Form 2A would require reporting on

those parameters required of all POTWs, while the Supplemental

Application Information part of the form would be used by applicants

providing data on toxic pollutants (i.e., larger POTWs and pretreatment

POTWs). Similarly, the Supplemental Application Information part of

Form 2A is intended to be used by applicants required to provide the

results of whole effluent toxicity tests, applicants with significant

industrial users, and applicants with CSOs.

The Agency also invites comment on requiring use of the form

itself. As explained previously, EPA conducted significant public

outreach to design an application form that is easy to use, including

outreach on the form itself. Use of the form would provide all of the

information requested in the proposed application regulations, whereas

modification of the form may result in failure to provide information

to be required in the proposed regulations. On the other hand, EPA

seeks to provide maximum flexibility by ``streamlining'' procedures for

permit development. The Agency seeks comment on whether requiring use

of the form would interfere with streamlining permitting procedures.

D. Applicability of Form 2A to Privately Owned and Federally Owned

Treatment Works

As in the case of existing Standard Form A and Short Form A, EPA

proposes that Form 2A and the application requirements at

Sec. 122.21(j) be required only for POTWs. However, the Agency proposes

that the Director have the discretion to use the proposed form for

treatment works that are not POTWs. As previously discussed, the NPDES

program has evolved considerably since Standard Form A and Short Form A

were promulgated in 1973, and now embraces facilities that operate

similarly to POTWs but which do not meet the regulatory definition of

POTW. Although not owned by a State or municipality, such facilities

nevertheless receive predominantly domestic wastewater, provide

physical and/or biological treatment, and discharge effluent to waters

of the United States. Such facilities include Federally owned treatment

works (FOTWs) and privately owned treatment

[[Page 62556]]

works that treat primarily domestic wastewater.

EPA is aware that Federal and State permitting authorities use a

number of mechanisms for obtaining NPDES permit application information

from non-POTW treatment works. These mechanisms include Standard Form

A, Short Form A, Form 2C (``Existing Manufacturing, Commercial, Mining,

and Silvicultural Operations''), and Form 2E (``Facilities Which Do Not

Discharge Process Wastewater''). The Agency believes that Form 2A would

in many cases be the more appropriate application form for non-POTW

treatment works, and solicits comments on its applicability to such

facilities.

Nevertheless, the Agency does not propose to require Form 2A for

non-POTW treatment works. Despite many functional similarities to

POTWs, such facilities do not share the same regulatory requirements

and thus might not be required to report the same information to

permitting authorities. In many instances, non-POTW treatment works are

not required under the NPDES regulations to develop pretreatment

programs, meet secondary treatment requirements, or report results of

whole effluent toxicity testing with their permit applications. For

those facilities, requiring such information through Form 2A might be

unnecessary.

The Agency solicits comments on whether the provisions of

Sec. 122.21(j) and the requirement to use Form 2A should be extended to

treatment works other than POTWs. EPA is particularly interested in

commenters' views on how to collect appropriate information in

appropriate circumstances. EPA also seeks to design permit application

requirements to account for privatization of treatment plants initially

constructed as publicly owned treatment works. The permit application

requirements in this proposed rule may be appropriate for partially

privatized portions of POTWs, particularly because the proposed

information regulations in today's rule would solicit information about

sewerage collection systems that might not otherwise be collected under

the industrial permit application regulations. Finally, EPA solicits

comment on the extent of the similarity between POTWs and FOTWs, for

example, whether FOTWs would have combined sewage collection systems.

In another part of today's proposal, EPA is soliciting comment about

the definition of POTW to which the permit application regulations

would apply.

E. EPA Proposes Revised Application Requirements and Form 2S for Sewage

Sludge Permits

Today, EPA also proposes a new form, Form 2S, to collect

information on sewage sludge from treatment works treating domestic

sewage (TWTDS). The term ``treatment works treating domestic sewage''

is a broad one, intended to reach facilities that generate sewage

sludge or effectively change its pollutant characteristics as well as

facilities that control its disposal. The term includes all POTWs and

other facilities that treat domestic wastewater. It also includes

facilities that do not treat domestic wastewater but that treat or

dispose of sewage sludge, such as sewage sludge incinerators,

composting facilities, commercial sewage sludge handlers that process

sludge for distribution, and sites used for sewage sludge disposal. In

addition, EPA may designate a facility a TWTDS when the facility's

sludge quality or sludge handling, use, or disposal practices have the

potential to adversely effect public health and the environment. Septic

tanks or similar devices are not considered TWTDS.

In addition to proposing sewage sludge application requirements in

new paragraph 122.21(q), EPA also proposes to delete the cross-

reference to Sec. 501.15(a)(2) in paragraph 122.21(d)(3)(ii). This

would consolidate all of the sewage sludge application requirements in

paragraph 122.21(q). The information included in Sec. 122.21(d)(3)(ii)

and Sec. 501.15(a)(2) was not intended to be a final, comprehensive

list of all of the application information required of a TWTDS. Such a

comprehensive list was not possible until after promulgation of the

technical sewage sludge standards. Rather, with these sections, EPA

provided a minimum set of information requirements to suffice until

more comprehensive sewage sludge permit application regulations could

be promulgated. In light of the promulgation of technical sewage sludge

use or disposal standards, at 40 CFR Part 503, EPA today proposes to

modify the sewage sludge permit application requirements to add new

Sec. 122.21(q) and to revise paragraph Sec. 122.21(d)(3)(ii)

accordingly.

EPA intends to maintain consistency between the NPDES permit

application requirements of Part 122 and the State sewage sludge

permitting requirements of Parts 123 and 501. This reflects EPA's

belief that a TWTDS should submit the same application information

regardless of whether the permitting authority regulates sludge

management under an approved NPDES or under a non-NPDES program.

Therefore, under today's rulemaking, EPA also proposes to revise the

language of Secs. 123.25(a)(4) and 501.15(a)(2) to modify the sludge

information requirements. EPA seeks comment on this revision.

F. Reasons for Separate Form 2A and Form 2S

EPA today proposes two separate forms for municipal wastewater

discharges and sludge for several reasons. First, the forms would

differ in their applicability. Form 2A would apply only to POTWs; Form

2S would require information from all TWTDS. Most facilities that

generate, treat, or dispose of sewage sludge are POTWs, and will be

required to submit both application forms. However, several thousand

TWTDS do not discharge to surface waters and therefore are not required

to have NPDES discharge permits. Thus, they would be required to submit

Form 2S but not Form 2A.

Second, separate application forms are also appropriate because

wastewater and sewage sludge are often regulated by different

permitting authorities. In 41 States and territories, the NPDES program

is administered at the State level through an EPA-approved NPDES

program. Therefore, POTWs in NPDES States would obtain NPDES permits

from the State permitting authority (by submitting Form 2A to the

State) and sewage sludge permits from EPA (by submitting Form 2S to the

EPA Regional Office). Separate application forms would facilitate this

bifurcated permitting process. In addition, even when a State sludge

permitting program is approved, the program will not necessarily be

administered by the State's NPDES permitting authority. For example, a

POTW in a State with both NPDES and sludge permitting authority could

receive its NPDES permit from the water management agency and its

sewage sludge permit from a solid waste agency. Separate Forms 2A and

2S would also facilitate permitting in this situation.

G. EPA Solicits Comment on the Use of Electronic Application Forms

Consistent with recent amendments to the Paperwork Reduction Act,

the Agency intends to develop electronic data submission as an

alternative form of application. The use of electronic media should

help to streamline the application process and to reduce the amount of

repetition associated with completing application forms that are only

available on hard copy. As previously noted, the elimination of

redundant reporting is one of the goals of this rulemaking.

[[Page 62557]]

It is not clear, however, how this would best be accomplished,

especially because permit application forms must be ``signed'' to

ensure reliability of permit application information (and

enforceability of the permit application regulations). Options range

from transmitting data electronically, submitting disk copies, or

submitting a hard copy. It might be most feasible to have electronic

forms that could be distributed and completed electronically, and then

printed, signed, and submitted. Although the Agency is considering how

``signatures'' for electronic submissions could be obtained, there are

other issues concerning the use of application forms, such as how to

attach accompanying documents. The Agency solicits comments regarding

the interest that applicants and permitting authorities may have in

this area, and suggestions as to how it could most feasibly be

accomplished.

III. Description of Proposed Requirements

A. EPA Proposes to Revise Requirements in Sec. 122.21 (c), (d) and (f)

Concerning the Use of Forms 1, 2A, and 2S

EPA proposes revisions to the existing general application

requirements for all NPDES permittees, which would require the use of

Forms 2A and 2S by applicants for EPA-issued permits. The proposed rule

would not require applicants using these forms to use Form 1, as is

currently required. Today's proposed rule substantially incorporates

the requirements of Sec. 122.21(f) into the requirements of proposed

Sec. 122.21 paragraphs (j) and (q).

1. Requirement to Submit Form 2A

EPA proposes in Sec. 122.21(d) to require POTWs to submit the

information at Sec. 122.21(j) using Form 2A or an equivalent form

approved by the Director. The Agency proposes to require applicants for

EPA-issued permits to complete Form 2A, but is considering not

requiring the use of the form so long as the proposed regulatory

requirements are met. The Agency intends to allow the use of any method

of electronic data submission the Agency may approve as part of the

final rule in lieu of the form itself.

2. Requirement to Submit Form 2S

EPA also proposes in Sec. 122.21 paragraphs (c)(2)(iii) and (d) to

require TWTDS to submit the information at Sec. 122.21(q) using Form 2S

or an equivalent form approved by the Director. As with Form 2A, the

Agency proposes to require applicants for EPA-issued permits to

complete Form 2S, but is considering not requiring the use of the form

so long as the proposed regulatory requirements are met. Also as with

Form 2A, the Agency intends to allow the use of any method of

electronic data submission the Agency may approve as part of the final

rule.

B. Application Requirements for POTWs (40 CFR 122.21(j))

Today's proposed rule includes application requirements for all

POTWs. These requirements are proposed at 40 CFR 122.21(j). Form 2A

tracks the information required by the regulation in parallel fashion.

Applicants for State-issued permits are not required to use Form 2A, so

long as the other application form provided by the Director requests

the information required by proposed Sec. 122.21(j).

EPA acknowledges concerns relating to redundant reporting which

were raised by State and municipal commenters during the consultation

process. The Agency does not wish to require applicants to report

information already provided or available to the permitting authority.

Today's proposal would allow permitting authorities to waive reporting

requirements, as appropriate. The introductory paragraph of proposed

Sec. 122.21(j) would allow the Director to waive any requirement in

proposed paragraph (j) if the Director has access to substantially

identical information. The Agency solicits comment on this approach

and, specifically, on the conditions for allowing such a waiver. In

today's proposed rule, the Agency also solicits comments on more

narrowly defined waivers for specific requirements (see discussion

below concerning pollutant data requirements and industrial user

information requirements).

The Agency also solicits comment on ways to allow the permit writer

or permitting authority discretion in waiving particular information

where the permitting authority determines that such information is not

necessary for the application. In other words, there may be flexible

ways to look at each applicant in light of the overall ``matrix of

characteristics'' regarding a particular facility. Where, for example,

historical data indicate that additional sampling is not warranted

unless other conditions have changed, the Agency is allowing the

permitting authority to waive such sampling. Such flexibility would

involve a holistic approach to implementing these proposed

requirements. The Agency solicits comment as to ways in which it could

be accomplished without making these provisions entirely discretionary,

and thus making it difficult for the applicant to predict how

discretion would be exercised. This might be particularly relevant on

the second and subsequent rounds of permitting under these proposed

provisions. The Agency also seeks comment on what information might be

appropriate and what information might be inappropriate for such

waivers.

1. Basic Application Information

Today's proposal would require all POTW applicants to provide the

information in proposed Sec. 122.21(j)(1). All of this information is

also requested in Questions 1-16 of the Basic Application Information

part of proposed Form 2A.

Proposed Sec. 122.21(j)(1) of today's rule would require

information on the POTW's service area and physical plant. The proposed

rule would require all applicants to provide information regarding the

community served and physical characteristics of the treatment works.

Proposed Sec. 122.21(j)(1)(i) requests facility identification

information. Proposed Sec. 122.21(j)(1)(ii) requests information about

the applicant, which may or may not be the facility itself. Proposed

Sec. 122.21(j)(1)(iii) asks the applicant to provide permit numbers of

any existing environmental permits that have been issued to the

facility.

Proposed Sec. 122.21(j)(1)(iv) would require the applicant to list

the municipalities and populations served by the POTW. The POTW may

serve several areas (including unincorporated connector districts) in

addition to the one in which it is located. The permit writer needs to

know what areas are served and the actual population served in order to

calculate the potential domestic sewage loading to the facility. The

information on the community is also useful for providing notice and

public comment for permit reissuance, and for public education.

Proposed Sec. 122.21(j)(1)(v) would require the applicant to report

the facility's design flow rate and the annual average daily flow rate

for each of the past three years. This information enables the

permitting authority to calculate limits appropriate to the POTW, to

alert the permitting authority to the need for flow restrictions or

facility expansion, and to compare design and actual flows.

Proposed Sec. 122.21(j)(1)(vi) would require information on the

type of collection system used by the facility. The applicant would

also identify whether the collection system is a separate sanitary

system or a combined storm and sanitary system. The

[[Page 62558]]

applicant would also estimate the percent of sewer line that each type

comprises. Familiarity with the type of collection system enables the

permit writer to anticipate combined collection system overloading in

wet weather. The current application form, Standard Form A, requests

that the applicant also provide the length of the collection system (in

miles). The proposed rule does not include this requirement because the

Agency does not believe that such information is useful to the permit

writer.

Proposed Sec. 122.21(j)(1)(vii) would also require information on

inflow and infiltration. Inflow is the uncontrolled entrance of water

into the collection system from surface sources such as unsealed

manholes. Infiltration is water that enters the collection system

through deteriorated or defective pipes, joints, and connections. Both

conditions may indicate the need for special permit conditions (such as

best management practices) to reduce the inadvertent flow of water to

the POTW. EPA requests comment on the availability of inflow and

infiltration information at POTWs. This provision would also request

information on steps the facility is taking to minimize inflow and

infiltration.

Proposed Sec. 122.21(j)(1)(viii) would require the applicant to

provide a topographic map that includes information on the layout of

the treatment plant, including all unit processes; intake and discharge

structures; wells, springs, and other surface water bodies; sewage

sludge management facilities; and the location(s) at which hazardous

waste enters the treatment plant by truck, rail, or dedicated pipe.

This provision reflects the topographic map requirements of

Sec. 122.21(f)(7), and is more specifically designed to include

features most likely to be found at a POTW.

Proposed Sec. 122.21(j)(1)(ix) would require the applicant to

submit a process flow diagram or schematic, together with a narrative

description. The permit writer uses this information to develop

secondary treatment and water quality-based permit requirements, as

well as other applicable permit conditions.

Proposed Sec. 122.21(j)(1)(x) would require information about

bypasses, which are intentional diversions of wastestreams from any

part of a treatment plant. Regulations governing bypasses are set forth

at 40 CFR 122.41(m). Facilities experiencing bypasses are required to

estimate the frequency, duration, and volume of bypass incidents, and

the reasons why bypasses have occurred. Information on bypasses is used

by the permit writer to develop appropriate permit limits and

conditions for these discharges.

Proposed Sec. 122.21(j)(1)(xi) would require general information

regarding discharges to waters of the United States as well as

discharges to destinations other than surface waters. This information

enables the permit writer to account for all wastewater that enters the

POTW, regardless of whether or not it is discharged directly to

receiving waters. From a watershed permitting standpoint, permitting

authorities may use this information to identify flows that

individually or collectively may have an impact on the watershed,

whether or not they are discharged directly into waters of the U.S.

If any effluent is discharged to surface impoundments with no

discharges to waters of the U.S., the applicant would report the

location of each surface impoundment, the annual average daily volume

discharged to each surface impoundment, and whether the discharge is

continuous or intermittent. If effluent is applied to the land, the

applicant must provide the site location, the site size, and the annual

average daily volume of effluent applied. The applicant must also state

whether land application is continuous or intermittent. This

information alerts the permit writer to the potential for point source

discharges to arise from land application sites under certain

circumstances, such as cold weather or high volume discharges, or from

surface impoundments.

Proposed Sec. 122.21(j)(1)(xi) would also require the applicant to

report whether wastewater is discharged to another treatment works, the

means by which the wastewater is transported, the average daily flow

rate to that facility, and information identifying the receiving

facility. The applicant must also identify the organization

transporting the discharge, if other than the applicant. The permit

writer needs this information in order to track the wastewater and

verify the transfer.

Finally, proposed Sec. 122.21(j)(1)(xi) would require information

on other types of disposal, such as underground percolation or

injection. These types of disposal may result in the transfer of

pollutants to waters of the U.S. through underground flows, and thus

are of interest both to the permit writer in writing the permit and to

the permitting authority in designing watershed protection strategies.

Proposed Sec. 122.21(j)(1)(xii) would require the applicant to

report whether the POTW is located on a Federal Indian Reservation,

discharges to a receiving water that is on a Federal Indian Reservation

or upstream of and eventually flows through a Federal Indian

Reservation. This information enables the permit writer to identify the

proper permitting authority and applicable requirements, including

applicable water quality standards.

Proposed Sec. 122.21(j)(1)(xiii) would require the applicant to

provide information about any scheduled facility improvements.

Improvements to the facility may change its flow or removal efficiency,

necessitating a permit modification. The permit writer may modify the

permit when the improvement is complete, or may include alternate

limits in the permit that would take effect upon completion of the

improvement.

The current application form, Standard Form A, requests certain

information about required improvements including information on dates

for completion of the preliminary plan, completion of the final plan,

awarding of contract, and site acquisition. EPA is proposing to delete

these requirements but solicits comment on their usefulness. Standard

Form A also requires the applicant to identify the authority imposing

the improvement and the general and specific action codes. The Agency

proposes to delete this requirement because permit writers have

indicated that this information is unnecessary to writing the permit.

2. Information on Effluent Discharges

Proposed Sec. 122.21(j)(2) of today's rule would require all POTWs

that discharge effluent to waters of the U.S. to provide specific

information for each outfall through which effluent is discharged to

surface waters, excluding CSO outfalls. This information would be

reported in Questions 17, 18, and 19 of the Basic Application

Information part of proposed Form 2A. The applicant would be required

to submit the information required for each outfall.

Proposed Sec. 122.21(j)(2)(i) would require general information

about each outfall. The applicant must specify the outfall number,

location, latitude and longitude, distance from shore (if applicable),

distance below surface (if applicable), and average daily flow (in

million gallons per day). EPA enters the latitude and longitude points

into the water quality data base STORET. Maps of the location of water

discharges are developed to examine the relationship between NPDES

outfalls and other areas of concern, such as drinking water intake

points or sensitive ecosystems. This information is also used to

establish water quality-based effluent limits appropriate for the

particular

[[Page 62559]]

receiving water. The locational data requested by this question also

supports the Watershed Protection Approach, because it provides Federal

and State environmental managers with information they need to

geographically locate discharge points.

Latitude and longitude would be required to be reported to the

nearest second. This is consistent with EPA's Locational Data Policy

(LDP) (See ``Locational Data Policy Implementation Guidance, Guide to

the Policy (March 1992)''). In accordance with this policy, all

latitude/longitude measurements in Agency data collection should have

accuracies of better than 25 meters (i.e., roughly, one second).

Proposed Sec. 122.21(j)(2)(i) would require information about the

interval and duration of effluent discharges that are seasonal or

periodic. Such discharges arise from certain conditions, usually

related to the process at an industrial user, whereby the industrial

user discharges intentionally at specified times following treatment.

For each outfall with an intermittent discharge, the applicant must

report the annual frequency, duration, flow, and the months in which

the discharge occurs. The permit writer uses this information to

develop permit limits that reflect the intermittent nature of such

discharges.

Proposed Sec. 122.21(j)(2)(i) would also require the applicant to

specify whether the outfall is equipped with a diffuser and the type of

diffuser (e.g., high-rate) used. The permit writer uses this

information to make mixing zone calculations. (See ``Technical Support

Document for Water Quality-based Toxics Control,'' EPA/505/2-90-001,

March 1991.)

Most POTWs discharge treated effluent to surface waters such as

streams or rivers. Proposed Sec. 122.21(j)(2)(ii) solicits information

that describes and identifies the receiving waters into which each

outfall discharges. Information about the type of receiving water is

useful to the permit writer because mixing zones and wasteload

allocations may be calculated differently for different types of

receiving waters.

This provision would also require the name of the watershed, the

Soil Conservation Service watershed code, the name of the State

management basin, and the United States Geological Survey hydrologic

code. This locational information supports the Watershed Protection

Approach, by providing Federal and State environmental managers with a

means of locating dischargers within the U.S. Soil Conservation Service

watershed categorization system, a State's river basin categorization

system, and the U.S. Geological Survey cataloging scheme. Some States,

as well as EPA Regions, are implementing a basin management approach to

watershed protection and will require the information requested by this

question.

Proposed Sec. 122.21(j)(2)(iii) would require information on the

level of treatment for discharges from each outfall. The CWA requires

POTWs, with some exceptions, to treat influent to the level of

secondary treatment prior to discharge. Secondary treatment is defined

at 40 CFR 133.102 in terms of five-day biochemical oxygen demand

(BOD5), total suspended solids (SS or TSS), and pH. Part 133

allows adjustments to the secondary treatment requirements for POTWs

that meet certain criteria. In addition, some POTWs are subject to

requirements for ``treatment equivalent to secondary treatment,'' as

described in Sec. 133.105. Finally, some POTWs may have more advanced

levels of treatment necessary, for example, to meet water-quality based

standards for certain pollutants, such as nitrogen and phosphorous.

This provision would require data on design removal efficiencies

for BOD5 and SS. Information on these parameters is necessary in

order for the permit writer to set pollutant limits that accurately

reflect the pollutant removal that the POTW can achieve. It may also

alert the permitting authority to the need for improvements to the

treatment facility.

Proposed Sec. 122.21(j)(2)(iii) would also require information on

disinfection, which usually follows secondary or advanced treatment and

which destroys bacteria, viruses, and other pathogens in the

wastewater. Disinfection most commonly occurs through chlorination.

Many POTWs also dechlorinate their effluent prior to discharge because

excessive free chlorine in a wastewater discharge can cause aquatic

toxicity in the receiving water.

3. Effluent Monitoring for Specific Parameters

The purpose of proposed Sec. 122.21(j) and proposed Form 2A is to

provide the permit writer with the minimum information necessary to

issue to a POTW an NPDES permit that contains effluent limitations

consistent with the goals of the CWA. EPA recognizes that the quality

of a POTW's effluent depends on several factors, such as the number and

type of industrial users of the POTW, and that not all POTWs need to

report the same information to ensure developing NPDES permits to

achieve designated uses of the Nation's waters. Hence, EPA proposes a

tiered approach to collect needed effluent monitoring information.

The Agency proposes to require all POTWs to report effluent

monitoring information for the 17 parameters listed at proposed 40 CFR

Part 122, Appendix J, Table 1 (``Effluent Parameters For All POTWs'')

(see also proposed Form 2A, Basic Application Information, question

19). These parameters have a high likelihood of being present in most

POTW effluents.

EPA is proposing to require additional reporting of pollutant-

specific data for POTWs with a design flow greater than or equal to 1.0

mgd; POTWs that have or are required to have a pretreatment program;

and other POTWs required to provide this information to the permitting

authority. In general, the pollutants for which additional data would

be required are those for which there are State water quality

standards, other than dioxin, asbestos, and ``priority pollutant''

pesticides. Thus, the Agency would require, at a minimum, data on those

pollutants listed at proposed 40 CFR Part 122, Appendix J, Table 2

(``Effluent Parameters For Selected POTWs and Treatment Works Treating

Domestic Sewage'') (see also proposed Form 2A, Part A, Supplemental

Application Information: Expanded Effluent Testing). The Agency would

not require data, unless otherwise specified by the permitting

authority, on those pollutants listed at proposed 40 CFR Part 122,

Appendix J, Table 3 (``Other Parameters for Treatment Works Treating

Domestic Sewage And Selected POTWs'').

Proposed Sec. 122.21(j)(3) would require that data be separately

provided for each outfall through which treated sanitary effluent is

discharged to waters of the United States. Further, EPA recognizes that

a POTW's effluent may have similar qualities at more than one of its

outfalls. EPA thus proposes to allow applicants to provide the effluent

data from only one outfall as representative of all such outfalls,

where two or more outfalls with substantially identical effluents, and

with the approval of the permitting authority on a case-by-case basis.

For outfalls to be considered substantially identical, they should, at

a minimum, be located at the same plant, be subject to the same level

of treatment, and have passed through the same types of treatment

processes. The Agency solicits comment on this approach and,

particularly, on whether data should be separately collected from all

such outfalls. Alternatively, should applicants generally be encouraged

to follow this approach rather than

[[Page 62560]]

selectively approved on a case-by-case basis?

EPA proposes that effluent and monitoring data submitted to the

permitting authority meet the following conditions:

1. Maximum Period of Sample Collection: All data summarized in

response to these questions is proposed to be collected within a 3-year

period preceding the permit application date.

2. Minimum Number of Daily Sample Analyses: Results from a minimum

of three separate daily sample analyses (pollutant scans) are proposed

to accommodate data needs for each analyte on which information is

requested. Additional samples might be required on a case-by-case

basis.

3. Seasonal Considerations: For most POTWs, EPA expects that the

three, or more, sets of results for daily sample analyses summarized in

response to these information needs would represent typical daily

discharges occurring during at least three different calendar seasons.

For most applicants, EPA proposes to require that a minimum of 4 months

and a maximum of 8 months separate at least one pair of the daily

sample analysis results included in the summary. Applicants unable to

meet this time requirement due to, for example, periodic,

discontinuous, or seasonal discharges could obtain alternative guidance

on this requirement from their permitting authority. Permitting

authorities might alter this requirement to address considerations of

specific POTWs.

4. Testing Methods: Sampling and analysis is proposed to be

conducted in accordance with methods approved under 40 CFR Part 136.

Applicants would be expected to use methods that enable pollutants to

be detected at levels adequate to meet water quality-based standards.

Where no approved method can detect a pollutant at the water quality-

based standards level, applicants would be expected to use the most

sensitive approved method. If the applicant believed that an

alternative method should be used (e.g., due to matrix interference),

the applicant would need to obtain prior approval from the permitting

authority. If an alternative method approved in accordance with 40 CFR

Part 136 is specified in the existing permit, the applicant would be

expected to use that method unless otherwise directed by the permitting

authority. When no approved analytical method exists, an applicant

could use a suitable method and provide a description of the method.

``Suitable method'' means a method that is sufficiently sensitive to

measure as close to the water quality-based standard as possible. The

permit writer needs to know which testing methods are used in order to

assess the technical validity of the results.

5. Daily Samples: For most POTWs, sampling is proposed to be

conducted using composite samples mixed on a flow-proportional basis

over a 24-hour period from at least eight sample aliquots (100 ml

minimum) collected using an automated sample collection device. The

flow-proportional basis would involve either varying the intervals

between the collection of equal volume samples or varying the sample

volumes collected over equal interval collection periods. The reason

for using automated samplers is that they are designed to make the

necessary adjustments according to the rate of flow.

For POTWs where automated sample collection devices are not

available, it is proposed that appropriate daily composite samples for

analysis would be produced by mixing at least four sample aliquots (100

ml minimum), each collected to represent typical segments of the

operating day effluent flows.

Because pH, temperature, cyanide, total phenols, residual chlorine,

oil and grease, and bacterial indicators cannot be properly sampled by

continuous sampling devices, summarized results for each daily analysis

are proposed to be based on individual analysis of a minimum of four

grab samples collected to represent typical effluent flows over the

operating day. A grab sample has 100 ml minimum volume, collected over

15 minutes or less.

For effluents from treatment ponds or other impoundments that have

retention times of greater than 24 hours, single grab samples (100 ml

minimum collected over 15 minutes or less) would be considered adequate

to represent daily conditions for all analytes reported.

6. Maximum Data Summarization Requirements: EPA recognizes that not

all analytes are sampled and analyzed at the same frequency for

effluents from a single POTW or across all POTWs. EPA thus proposes

that summarized results for analytes should include all data collected

over the preceding three-year period, ending the calendar quarter

preceding the permit application date (providing, for example, a total

of 3 annual samples or 12 quarterly samples summarized per analyte, as

well as any other samples taken by the applicant).

For those analytes sampled and analyzed at monthly or more frequent

intervals, EPA proposes that applicants only summarize and report data

collected over a single one-year period (e.g., providing a summary of

12 monthly samples, together with any other samples taken during that

period, per analyte). The one-year period included in this data

summarization interval would end the calendar quarter preceding the

permit application date.

Applicants would be required to indicate for each analyte the

number of samples summarized and whether each summary represents a one

or three year summarization period.

7. All Data Must Be Reported: For each analyte, EPA proposes that

all samples conducted and analyzed in accordance with 40 CFR Part 136

during the reporting period be reported (i.e., included with all other

data for the period reported), regardless of whether or not they were

required by the permitting authority or these proposed regulations.

8. Data Must Be Summarized: For each analyte, EPA proposes that

applicants report the maximum daily discharge, expressed either as

concentration or mass, of all of the samples reported. Applicants would

also report the average daily discharge, expressed either as

concentration or mass, of all the samples reported.

The Agency is considering requiring applicants to report only

concentration numbers on the application or, alternatively, requiring

that applicants who wish to report mass also provide flow information

used in calculating the mass figures reported. Thus, applicants would

be required to report the flow rate used in calculating the maximum

daily discharge and the average of all of the flow rates used in

calculating the average daily discharge.

Some States may wish to have individual pollutant data reports,

rather than summary data, from applicants, either from all applicants

or on a case-by-case basis, in addition to or instead of the summary

data required by proposed Sec. 122.21(j)(3). States would be encouraged

to obtain this information in the manner considered most suitable to

their needs.

9. Existing Data May Be Reported: Where the applicant has existing

data for a given pollutant, and where such data meet the conditions

described above, EPA proposes to allow the use of such data in lieu of

data collected solely for the purpose of the permit application. If,

for example, the applicant were to have pollutant data from two

samples, only one more sample would be needed to meet the minimum

requirement of three samples, assuming that other conditions were met.

Also, where such data have previously been reported to the permitting

authority, the permitting

[[Page 62561]]

authority could waive such requirements as having been satisfied.

The Agency proposes the above conditions in an effort to be clear

about the nature of what needs to be reported. Accordingly, the Agency

solicits comment on whether these conditions are sufficiently clear, on

the one hand, or whether they are overly restrictive, on the other.

The Agency also solicits comment on each of the particular

conditions described above. The Agency is particularly interested in

comment on two of these conditions: whether three pollutant scans is

the appropriate number to require; and whether the three-year

requirement for reporting test data should be waived, as proposed,

where sampling for pollutants is done on a monthly basis.

The analytical data proposed to be reported would result from a

variety of analytical methods, with detection limits ranging from less

than 1 ppb to more than 10 ppb. The toxic analytes that are of most

concern at low concentrations are primarily analyzed by gas

chromatography (GC), gas chromatography/mass spectrometry (GC/MS),

inductively coupled plasma emission spectrometry (ICP), and atomic

absorption spectrometry (AA), and high resolution capillary column gas

chromatography/high resolution mass spectrometry (HRGC/HRMS). These

methods have different numeric analytical endpoints, based upon

detection (e.g., method detection limit) or quantification (e.g.,

minimum level) levels. In addition, the wide latitude of data reporting

definitions and conventions in use in various regulatory programs

complicates the generation and interpretation of analytical data

reported with this proposal.

In order for permit writers to develop appropriate permit

requirements, they must be able to establish whether a pollutant is

present and whether a reasonable potential for environmental impairment

exists, as defined by water quality standards and criteria. To properly

make such determinations, permit writers require more complete data and

documentation than has been previously supplied with the application

form, because any ambiguity increases the likelihood that the permit

writer will need to include in the permit limits that are near or below

10 ppb or, alternatively, additional monitoring requirements for those

pollutants for which the data are ambiguous.

Thus, it is in the best interests of both the applicant and the

permitting authority that the proposed rule would require that the

method detection limit (MDL), minimum level (ML), or other designated

method endpoint, together with identification of the corresponding

analytical methods used be stated in the permit application. Along with

this information, the proposal would require applicants to submit

pollutant data based upon actual sample values. In other words, even

where test values are below the detection or quantification level of

the method used, the actual data value should be reported, rather than

reporting ``non-detect'' (``ND'') or ``zero'' (``0'') in such

instances. If the endpoint of the method used is reported along with

the actual sample results, the permitting authority will be able to

determine if the data is in the ``non-detect'' range or ``below

quantification'' range.

The Agency has provided guidance to the applicant in the proposed

Form 2A instructions in order to minimize the conditions that lead to

inaccurate sampling data. The Agency proposes that the permit

applicant: (1) alert its laboratory to the analytical and detection

limit requirements and the expectations for documentation; and (2)

report the necessary documentation to ensure that the permit writer is

fully informed as to the methods used and the results obtained. For

more detailed information concerning analytical issues (acceptable

methods, effluent-specific detection limits, and documentation of data

and analytical problems), applicants should refer to the ``Guidance on

Evaluation, Resolution, and Documentation of Analytical Problems

Associated with Compliance Monitoring'', EPA 821-B-93-001, June 1993.

a. Pollutant Data Reporting Requirements for All POTWs

EPA has identified certain pollutants that are commonly found in

POTW effluents, regardless of size, and for which permit limits may be

necessary to prevent adverse effects on receiving waters. Proposed

Sec. 122.21(j)(3) would require each applicant, regardless of size, to

provide monitoring information for the pollutants listed in proposed

Appendix J, Table 1. These include the conventional pollutants

(defined, at 40 CFR 401.16, as biochemical oxygen demand, total

suspended solids, pH, fecal coliform, and oil and grease), as well as

other parameters that are common to domestic wastestreams, such as

ammonia (and other nitrogen compounds), and compounds of other origin,

such as chlorine (which is used for disinfection during the treatment

process).

The complete list is, as follows:

Flow

Temperature

Bacterial indicators (E. coli, Enterococci, Fecal coliform)

5-day biochemical oxygen demand (BOD5 or CBOD5)

Chlorine (total residual, TRC)

Kjeldahl nitrogen (total organic as N)

Oil and Grease

Total dissolved solids

Total suspended solids

pH

Phosphorus (PO4-P)

Dissolved oxygen

Hardness (as CaCO3)

Ammonia (as N)

Nitrate + Nitrite (as N)

The secondary treatment regulations at 40 CFR Part 133 describe the

minimum level of effluent quality that must be attained in terms of

BOD5 (or CBOD5), TSS, and pH, and specify technology-based

criteria for each parameter. Control of BOD5 (or CBOD5) is

necessary to ensure sufficient dissolved oxygen in the receiving water

to protect aquatic life; BOD5 (or CBOD5) is also a key

parameter in biological treatment systems. Extremely high levels of

suspended solids in the POTW's influent can interfere with POTW

operations. High TSS levels in the effluent also block light in the

receiving water and inhibit photosynthesis. Permit writers use

information for these, as well as all other parameters listed above, to

set appropriate water quality-based limits for permit applicants. In

instances where POTWs have been allowed to substitute chemical oxygen

demand (COD) or total organic carbon (TOC) for BOD5, in accordance

with 40 CFR 133.104, applicants would report the substituted parameter.

EPA has determined that enterococci and E. coli are better

biological indicator organisms than fecal coliform. From 1973 through

1982, the Agency studied marine and freshwater bathing beaches. These

studies reveal strong correlations between instances of

gastrointestinal illness and concentrations of certain indicator

organisms at these beaches. That is, in both fresh and marine waters,

enterococci and E. coli were strongly correlated with gastroenteritis.

(For more information on this study, see ``Ambient Water Quality

Criteria for Bacteria--1986,'' EPA440/5-84-002, January 1986.)

Because high numbers of these organisms in receiving water indicate

an increased potential for human gastrointestinal illness following

swimming or ingestion, and because both enterococci and E. coli are

contained in all domestic sewage, indicating the potential for

gastrointestinal illness, EPA is

[[Page 62562]]

proposing to require all POTWs to test for these biological indicator

organisms in their discharged effluents. The Agency is also proposing,

however, to allow the use of fecal coliform as the biological indicator

for those applicants where the applicable permitting authorities have

not yet switched to monitoring requirements for enterococci and E.

coli. EPA solicits comments on allowing the use of fecal coliform in

cases where permitting authorities have not switched from using fecal

coliform as the pathogen indicator. The Agency also solicits comment as

to whether testing for enterococci and E. coli should be required at

all before the Agency has developed approved test methods for these

parameters.

The Agency proposes that all POTWs report chlorine and ammonia

levels. EPA's experience with toxicity identification evaluations

(TIEs) at many POTWs indicate that chlorine and ammonia frequently

cause effluent toxicity. Additional studies also reveal frequent

adverse effects by these compounds within receiving waters. Therefore,

at POTWs that chlorinate their wastewaters without subsequent

dechlorination prior to discharge, chlorine may be present in

concentrations sufficient to cause toxicity in receiving waters.

Ammonia, which is common in nearly all sanitary sewage, is highly toxic

to aquatic life in its un-ionized form. The ratio of the relatively

toxic un-ionized ammonia form (NH3) compared with the considerably

less toxic ionized ammonium form (NH4+) is dependent on pH

and temperature.

Chlorine and ammonia are listed in many State water quality

standards, and ``The Quality Criteria for Water 1986'' (EPA 440/5-86-

001, also known as the ``Gold Book'') lists criteria for both

pollutants. Chlorine and ammonia can react to form chloramines, which

can be toxic, and are more persistent in the aquatic environment than

elemental chlorine. In estuaries or ocean water, bromamines can also

form. Analytical methods recommended for the quantification of total

residual chlorine (TRC) also indicate the presence of chloramines and

bromamines. If a disinfectant other than chlorine is used, the

permitting authority has the discretion to require additional data for

that disinfectant. If alternative disinfection technologies are used,

the applicant must submit a description of the alternate process.

Depending on the type of treatment provided, different sampling

regimes may be appropriately required. For example, POTWs that do not

use chlorination for disinfection, and do not otherwise use chlorine in

their treatment processes, perhaps should not be required to sample for

chlorine. The Agency solicits comment on whether to waive chlorine data

from such POTWs.

EPA criteria for nitrate, nitrite, and phosphorus are published in

The Gold Book. Because these parameters are prevalent in most POTW

effluents and because of their impacts on receiving waters, EPA is

proposing to require all applicants to test for them. Nitrogen and

phosphorus are often limiting nutrients in marine and fresh water

systems, respectively. Excessive loadings of nitrogen (discharged as

ammonia (including ammonium), nitrate, nitrite, and organic nitrogen)

and phosphorus (discharged as phosphate) can stimulate algae growth,

interfering with shoreline aesthetics and recreational uses. In

addition, decaying algae can reduce dissolved oxygen concentrations,

thus impairing the aquatic environment. At concentrations not typically

encountered in surface waters, nitrate is toxic to fish.

Today, EPA proposes monitoring and reporting requirements for total

nitrate plus nitrite, Kjeldahl nitrogen, and total phosphate. EPA is

proposing to request the reporting of nitrate plus nitrite, combined

rather than separately, because the chemical equilibrium between the

two forms can change rapidly when chemical conditions in effluents and

receiving waters differ. Such differences can cause concentration

ratios between these two nitrogen oxide forms to change rapidly shortly

after effluents enter receiving waters. Thus, separately knowing the

effluent concentrations of nitrate and nitrite often bears little

significance to their likely concentrations shortly after discharge

into receiving waters. Kjeldahl nitrogen concentrations (a measure of

organic nitrogen concentrations) are requested to allow permit writers

to evaluate the total concentration and total mass of nitrogen

discharged, determined by summing concentrations of discharged ammonia,

nitrate plus nitrite, and Kjeldahl nitrogen, when all are reported in

equivalent nitrogen concentrations (NH3-N and

NO2+NO3-N). Phosphate is to be reported in equivalent

phosphorus concentrations (PO4-P). Concentrations of elemental

phosphorus in most effluents occur at less than potentially toxic

levels; consequently, no reporting requirements are proposed for

elemental phosphorus.

The Gold Book also provides criteria values on concentrations of

oil and grease. Concentrations of oil and grease sufficient to create a

sheen on the receiving water not only affect aesthetic qualities of

these waters, but may also reduce the re-aeration rate of the receiving

waters, potentially contributing to dissolved oxygen sag problems. Oil

and grease may also indicate the presence of other high-molecular-

weight organic pollutants of concern, because they are often discharged

with or act as a sink for such pollutants. Finally, oil and grease

interfere with POTW operations. Therefore, today's proposal includes

monitoring and reporting requirements regarding concentrations of oil

and grease.

Standard Form A currently requires applicants to test for most of

the parameters discussed above. Today EPA is proposing to delete

reporting requirements for the following parameters, which are

currently included on the list for which sampling is required on

Standard Form A:

Chemical Oxygen Demand

Fecal Streptococci

Settleable matter

Total Coliform Bacteria

Total Organic Carbon

Total Solids

EPA is proposing to delete chemical oxygen demand (COD) and total

organic carbon (TOC) because biochemical oxygen demand (BOD5 or

CBOD5) is generally more relevant to municipal treatment systems.

EPA is proposing to delete settleable matter and total solids because

there is considerable overlap between these parameters and total

suspended solids and total dissolved solids. The Agency believes that

the two selected parameters provide sufficient information to permit

writers. Finally, the Agency proposes to drop reporting requirements

for fecal streptococci and total coliform bacteria because the Agency

believes that the selected pathogens (E. coli, enterococci, and fecal

coliform) are better indicators for risk. The Agency requests comments

on its proposal to delete the above Standard Form A parameters from the

proposed application requirements.

In addition to the parameters discussed above, Standard Form A

requires that POTWs indicate the presence of (but not provide

quantitative data for) certain pollutants, if known. Such pollutants

include metals, as well as other toxic and non-conventional pollutants.

The Agency is proposing to require that some POTWs sample and report on

certain toxic (priority) pollutants, as described in the discussion,

``Reporting of Additional Pollutants for Some POTWs'' (at III.B.3.b).

The Agency is proposing, however, not to include POTW reporting

requirements for the following pollutants listed on Standard Form A:

[[Page 62563]]

Bromide

Chloride

Fluoride

Sulfide

Aluminum

Barium

Boron

Cobalt

Iron

Manganese

Titanium

Tin

Algicides

Chlorinated Organic Compounds

Pesticides

Surfactants

Radioactivity

A number of these parameters (including bromide, chloride, boron,

cobalt, iron, manganese, titanium, and tin) are proposed for deletion

because they are relatively less toxic than priority pollutants for

which the Agency is proposing to require testing (see, ``Reporting of

Additional Pollutants for Some POTWs'' (at III.B.3.b)); and the levels

of these pollutants in most municipal discharges are low. EPA is

proposing to delete algicides, pesticides, and chlorinated organic

compounds because the Agency does not believe it is relevant to ask for

information about these contaminants at this level of generality.

EPA considered, but does not include as part of today's proposal,

requirements that all applicants test and report on sulfide and sulfate

concentrations in effluents. Sulfide is of concern because the

anaerobic decomposition of sewage and other naturally deposited organic

material is a major source of hydrogen sulfide. EPA considered

proposing monitoring requirements for sulfate because high sulfate

concentrations, which are caused by sewer corrosion, are converted

anaerobically to hydrogen sulfide. Hydrogen sulfide is toxic to aquatic

life; it also biologically reoxidizes on sewer walls that are exposed

to air, forming sulfuric acid that corrodes the concrete of the sewer

channels. It was considered that, based on this monitoring information,

the permit writer could set permit limits for sulfide and sulfate or to

require appropriate best management practices. These monitoring

requirements, however, were not included as part of today's proposed

requirements because of the view that sulfide is rapidly converted to

sulfate in aerobic waters, which rapidly dissipates its toxic risk. In

most instances, maintaining monitoring requirements and permit limits

for dissolved oxygen to maintain attainable uses of receiving waters

will adequately safeguard receiving waters from toxic risks due to

sulfide or sulfate potentially contained in effluents. Regarding

corrosivity within the sewer system, the Agency believes that, in

general, the POTW is in a better position than the permit writer to

address such concerns. Special considerations may lead to the

requirement that some applicants submit analytical results for these

chemicals, as determined on case-by-case basis. EPA invites comment on

these conclusions.

The Agency also considered testing for surfactants, but is not

proposing to require such testing as part of this rule because: most

POTWs do not discharge surfactants at toxic levels; the Agency has not

developed water quality criteria for surfactants; and sources are

difficult to control. In cases where surfactants in municipal

wastestreams occur at toxic levels, the Agency believes that whole

effluent toxicity (WET) testing should reveal any toxicity arising from

surfactants. EPA invites comment on this approach.

The Agency also considered including monitoring requirements for

three additional nonconventional pollutants: aluminum, barium, and

fluoride; because of their regular appearance in analytical results

from the numerous pollutant scans reviewed during preparation of the

proposed rule and because published criteria exist for these three

conventional pollutants. But such requirements have not been included

on the proposed rule for the following reasons:

(1) Toxicity problems related to excess aluminum concentrations,

especially for aquatic organisms, occur primarily in acidic receiving

waters (most often in waters with pH less than 6.0) having low hardness

levels (i.e., concentrations of calcium less than 2.0 mg/l). The

majority of effluent water analyses reviewed did not contain sufficient

aluminum concentrations to likely impair beneficial uses of receiving

waters;

(2) Although barium regularly appeared in the pollutant scans of

effluents reviewed by EPA, the concentrations reported in all samples

remained below the 1.0 mg/l Gold Book criterion value for barium in

domestic water supplies; and

(3) According to the 1972 ``Blue Book'', potentially adverse

physiological effects due to excess fluoride concentrations increase

with increasing environmental temperatures. Consequently, recommended

criteria for fluoride range from 1.4 to 2.4 mg/l for average annual air

temperatures of 50 to 91 deg.F. Concentrations for the majority of

reported results from the many pollutant analyses reviewed by EPA

revealed that although fluoride was a regular constituent of effluents,

in the majority of the instances it occurred at concentrations less

than suggested Blue Book criteria.

At this time, based on information currently available to EPA,

concentrations of aluminum, barium, and fluoride in the majority of

effluents are generally less than those necessary to produce

significant risk for beneficial uses of receiving water. As such, EPA

concludes at this time that it is unwarranted to require all

dischargers to monitor for these chemicals as part of the municipal

application process. Individual permit writers can, nevertheless,

require analysis of any or all of these chemicals, wherever treatment

works or environmental considerations suggest that such requirements

are warranted. Further, EPA intends to continually review this

conclusion as more effluent monitoring results become available, and

continues to seek informed input from outside EPA on this decision.

b. Reporting of Additional Pollutants for Some POTWs

As discussed above, the Agency proposes to require all POTWs to

report information on pollutant parameters commonly associated with

POTW effluents. Proposed Sec. 122.21(j)(3) (see also, proposed Part A

in the Supplemental Application Information part of Form 2A) requires

the reporting of additional parameters listed in proposed Appendix J,

Table 2, by those POTWs that the Agency believes are most likely to

discharge toxic pollutants to receiving waters. Toxic pollutants may

interfere with POTW performance or pass through the POTW to receiving

waters, thus potentially causing adverse water quality impacts.

Certain POTWs discharge toxic organic and inorganic pollutants

primarily as a result of contributions from non-domestic sources.

Section 122.21(j)(3)(iii) of today's proposal requires the applicant to

submit monitoring data for the pollutants listed in proposed Appendix

J, Table 2, if the POTW meets any one of the following criteria: (1)

The POTW has a design flow rate equal to or greater than 1.0 mgd; (2)

the POTW has a pretreatment program or is required to have one under 40

CFR Part 403; or (3) the POTW is otherwise required to submit this data

by the permitting authority.

POTWs with a design flow equal to or greater than 1.0 mgd are

designated as ``major'' POTWs by the Agency. EPA estimates that roughly

25 percent of the approximately 16,000 POTWs nationwide have design

flows of at least

[[Page 62564]]

1.0 mgd. The Agency has found that major POTWs have a high potential to

discharge toxic pollutants because of the strong likelihood that they

receive industrial wastewaters and because of the large number of

substances entering the treatment works from various sources.

Therefore, the Agency believes that it is necessary to collect toxic

pollutant data from these POTWs.

EPA also proposes to require data on toxic pollutants from POTWs

that are required to develop pretreatment programs under 40 CFR Part

403. A POTW is required to develop a pretreatment program if it

receives discharges from significant industrial users that may

interfere with the POTW or pass through the treatment works.

Approximately ten percent (approximately 1,500) of all POTWs have or

are required to develop pretreatment programs. Most POTWs with

pretreatment programs are also major POTWs, and so this criterion only

slightly expands the requirements of this provision.

In addition to POTWs with design flows greater than or equal to 1.0

mgd and POTWs with pretreatment programs, EPA is proposing to allow the

permitting authority to require any other POTW to submit monitoring

data for some or all of the pollutants listed in proposed Appendix J,

Table 2. The Agency would recommend that the permitting authority

require an applicant to perform a complete or partial pollutant scan if

toxicity is known or suspected in a POTW's effluent. Alternatively, if

the facility's effluent causes adverse water quality effects, or if the

POTW discharges to an impaired receiving water, the permit writer could

require the applicant to provide analytical results from a complete

pollutant scan.

The permit writer could also require the applicant to test for

these parameters depending on the number or kinds of industrial users.

EPA is proposing to grant the permit writer such discretion because

smaller POTWs that receive industrial contributions also have the

potential to discharge toxic pollutants. Although a POTW with a design

flow less than 1.0 mgd may not have as great a volume of toxic

pollutants entering its treatment system as a larger POTW, the impact

of its industrial users could easily be more pronounced due to other

considerations, such as smaller treatment capacity or an effluent-

dominated receiving stream. Testing for toxic pollutants would provide

the information needed to write a protective permit for such a POTW.

The Agency solicits comments on the above criteria for determining

which POTWs must test effluent for the pollutants in proposed Appendix

J, Table 2. The Agency also solicits comment on whether other POTWs

should be required to sample for some or all of these pollutants.

Alternatively, the Agency solicits comment as to whether other POTWs

should be required to provide any existing data on these pollutants.

Such data would be important information in conducting watershed

assessments.

The proposed approach for determining which POTWs must submit data

on toxic pollutants is not the only approach being considered by the

Agency. Among the alternatives being considered is one that would

expand upon the approach described above, and require toxics data from

two groups of non-pretreatment minors, each of which includes about

half of all minor POTWs. In this approach, POTWs with a population

between 1,000 and 10,000 (and not otherwise required to report as

described above) would be required to provide a single pollutant scan

for the Metals, Cyanide, and Total Phenols and the Volatile Organics

groups in proposed Appendix J, Table 2. POTWs with a population of less

than 1,000 (and not otherwise required to report as described above)

would be required to provide a single scan for certain metals (i.e.,

cadmium, chromium, copper, lead, nickel, zinc, silver, and mercury).

The Agency specifically solicits comment on this alternative approach.

Commenters are requested to address the suggested cutoff points for

different levels of reporting, the pollutants for which reporting is

suggested, and the number of samples that should be required.

EPA proposes that POTWs meeting the three criteria enumerated above

monitor for the pollutants in proposed Appendix J, Table 2, and any

other pollutants for which there are established State water quality

standards. Proposed Table 2 is a subset of the priority pollutants list

previously described. As discussed in the background discussion of this

preamble, these pollutants are regulated under the CWA and have been

identified by Congress and/or EPA as potential threats to human health

or aquatic life. Proposed Table 2 also includes total phenols, a

parameter commonly used as an indicator pollutant for certain priority

pollutants. Also as discussed, EPA and most States have developed

numeric criteria and standards for most of these pollutants.

Proposed Appendix J, Table 2 represents pollutants that have been

identified in priority pollutant scans of effluent from POTWs. Permit

writers will be able to use data on these pollutants as a basis to

derive appropriate permit limits.

The Agency is proposing to not require pollutant data for certain

priority pollutants (i.e., dioxin, asbestos, and priority pollutant

pesticides). Available information on the occurrence of asbestos,

dioxin, and priority pollutant pesticides reveals that these pollutants

rarely occur at detectable levels in POTW effluents. Absent information

to the contrary, the Agency does not consider asbestos to be a

pollutant of concern in municipal wastewater effluents. Dioxin, while

nearly ubiquitous, is present in such minute amounts in those

industrial outfalls where it is known to be present in relatively high

concentrations, that the Agency does not believe that, in general, it

is appropriate to require POTWs to monitor for the pollutant at the

POTW outfall, due to the high level of dilution in municipal

wastestreams. Permitting authorities may wish to require such

monitoring on a case-by-case basis if there is reason to believe that

dioxin may be present in measurable amounts. To the extent that

priority pollutant pesticides, including, for example, DDT and PCBs,

appear in municipal wastestreams, the Agency believes that their

presence is due, for the most part, to background concentrations,

rather than to new introductions by discharges to the POTW. Where these

pesticides result in toxicity problems or where other conditions merit,

the Agency believes that permitting authorities should require sampling

for them on a case-by-case basis. In the alternative, the Agency is

considering adding pesticides to the list of required pollutants in

proposed Appendix J, Table 2. The Agency solicits comment on whether

routine monitoring and screening should be required for pesticides from

all POTWs meeting the criteria of proposed Sec. 122.21(j)(3)(iii) or

whether the proposed approach is the appropriate one.

EPA also solicits comment on alternative ways to collect

information in permit application about pollutants that occur in low

levels, such as dioxin, or that otherwise present water quality

concerns even in highly dilute effluent. As discussed previously, the

proposal would require information about significant industrial users

from certain POTWs so the permit writer should have sufficient

knowledge about the potential for pass through of such pollutants. The

Agency is interested in commenters' views on the adequacy of SIU

identification for the purposes of developing adequate POTW permit

limitations. Proposed Sec. 122.21(j)(3)

[[Page 62565]]

would also require that POTWs meeting the above criteria monitor for

pollutants not listed in proposed Appendix J, Table 2, for which the

State or EPA have established State water quality standards (see

discussion in Background section of this preamble). A number of States

have established water quality standards for pollutants not listed as

CWA sec. 307(a) priority pollutants. For the reasons stated in the

above paragraph, the Agency believes that it is appropriate to require

sampling for these pollutants, as well.

In addition, EPA considered, but is not proposing, requiring

applicants to monitor for other pollutants, such as those on the ``Gold

Book'' list of Federal Water Quality criteria, those regulated under

the Safe Drinking Water Act, or those on data bases such as the Toxics

Release Inventory System (TRIS), the Aquatic Toxicity Information

Retrieval data base (AQUIRE), and the Integrated Risk Information

System (IRIS). The Agency determined that adding these other pollutants

to the list of pollutants proposed would impose additional monitoring

and reporting requirements on the applicant, at substantial additional

cost, but without significant benefit. Additionally, not all pollutants

on these lists have been assigned numeric criteria. Moreover, available

information reviewed by EPA does not indicate that these chemicals

occur with either sufficient frequency or at high enough concentrations

in typical POTW effluents to support their inclusion among pollutants

for which monitoring is proposed to be uniformly required.

Under today's proposal, in proposed 122.21(j)(3)(v), permit writers

would have the option to require monitoring and reporting for any other

potentially toxic chemicals for which the authority has a reasonable

basis to suspect that such materials may be contained in POTW

effluents. Such basis could include the presence of industrial users

known to release chemicals not included among the pollutants for which

routine analyses are otherwise required. EPA invites comments on all

aspects of this proposal that would allow for case-by-case information

requests that might otherwise extend the time involved in streamlined

permit issuance procedures.

In addition, EPA solicits comment on whether to require applicants

to summarize and report, as part of the application process, analytical

results for any toxic pollutant determined during the three-year period

preceding the application to be a known or likely constituent of the

facility's discharge. That is, when an applicant has reason to know or

suspect the presence of other toxic constituents in their effluents,

its reporting requirements would not necessarily be limited either to

the general list of toxic pollutants provided by proposed Appendix J,

Tables 1 and 2, or to specific monitoring requirements placed on the

applicant by the permitting authority. EPA considers results from toxic

release inventory (TRI) as providing one likely basis for information

that could cause applicants to initiate additional effluent monitoring

analyses during the application process.

Finally, the Agency is interested in providing flexibility where

POTWs can demonstrate that the risk of occurrence of pollutants in the

discharge is sufficiently small. The Agency seeks comment on whether

POTWs could be exempted from providing information on specific

pollutants where there are statistically valid data to allow the

permitting authority to predict the absence of particular pollutants.

In addition, EPA solicits comments on the appropriateness of exempting

POTWs from providing information about certain contaminants which are

detectable in only a small fraction of POTWs (e.g., less commonly

occurring metals such as antimony) and which would not be expected to

occur based on other data about the POTW or the indirect discharge.

Other approaches to collecting pollutant data were considered for

proposal. EPA solicits comment on each of these, as follows:

A. Types of Industrial Contributors

This approach would have required monitoring for specific

pollutants, depending on the identity of industrial users discharging

to the POTW. Although this approach was supported by a number of

commenters in the course of our outreach efforts, it appeared to be too

difficult to implement for non-pretreatment POTWs. Non-pretreatment

POTWs are not required to do user inventories of, for example, all

categorical industries, and thus would probably be unaware of what

monitoring data to provide. On the other hand, pretreatment POTWs would

be required to provide entire priority pollutant scans if they had only

2-3 different types of industries. The Agency solicits comment on how,

specifically, such an approach would work and how it would benefit

applicants and provide permit writers with appropriate information.

B. TRI as a Basis for Determining Additional Pollutants for Sampling

It was suggested that we use TRI data to determine what additional

pollutants for which to require sampling. Although industrial user TRI

reports are not currently provided to POTWs by TRI-reporting

industries, such reporting could be required, for example, through the

pretreatment program. Of course, permit writers may always request TRI

data from EPA. At issue is whether the applicant should be required to

provide additional monitoring data for pollutants reported through TRI.

The Agency solicits comment as to whether this approach might be

feasible and whether it would provide useful information to the permit

writer that is not otherwise available.

C. Existing Pollutant Data from SIUs

In order to obtain information on pollutants that occur in POTW

discharges in low concentrations, permit writers could make use of

information provided to POTWs by SIUs during the term of the existing

permit. The Agency solicits comment on this approach, and is

particularly interested in whether such information could be provided

in lieu of requiring end-of-pipe effluent data for certain pollutants

(e.g., dioxin, pesticides, or other organic chemicals received

principally from industrial sources).

D. Ambient Data

Another issue considered was whether or not to require POTWs to

provide the results of ambient monitoring as part of the permit

application. Although some have suggested that this information would

be helpful for implementation of the watershed approach, States were

generally opposed to requiring POTWs to collect ambient data. The view

was expressed that it is the permitting authority's responsibility to

collect this information, and not the POTW's responsibility to provide

it. Nevertheless, the Agency is interested in soliciting comment as to

whether such data should be required.

E. Bioaccumulation Data

Although analytical methods to assess bioaccumulation in the

aquatic biota are available, they are costly compared to approved test

methods for pollutants in effluent. Since WET tests are an indirect

indicator for human health risks, the Agency is not proposing to

require bioaccumulation data from POTWs. However, such data are

directly relevant to human health risk considerations. Therefore, the

Agency solicits comment on whether to require bioaccumulation data.

Because of cost considerations, the Agency also solicits comment as to

what tradeoffs, in terms of other types of reporting, might make such

an approach acceptable.

[[Page 62566]]

4. Effluent Monitoring For Whole Effluent Toxicity

As discussed in the background section, the July 24, 1990,

amendments to the General Pretreatment Regulations require that certain

POTWs provide the results of whole effluent biological toxicity testing

as part of their NPDES permit application (40 CFR 122.21(j) (1)-(3)).

Such testing was required to have been conducted since the last NPDES

permit reissuance or permit modification, under 40 CFR 122.62(a),

whichever occurred later.

In today's proposed rule, EPA proposes to revise this provision.

Proposed Sec. 122.21(j)(4) sets forth these revised requirements.

First, all POTWs are required to identify any biological tests the

applicant believes to have been conducted within three years of the

date of application.

Second, as in the existing regulation, the following POTWs would be

required to conduct and provide the results of whole effluent

biological toxicity (WET) tests:

(A) All POTWs with design influent equal to or greater than one

million gallons per day;

(B) All POTWs with approved pretreatment programs or POTWs required

to develop a pretreatment program;

(C) Other POTWs, as required by the Director, based upon

consideration of the following factors:

(1) The variability of the pollutants or pollutant parameters in

the POTW effluent (based on chemical-specific information, the type of

treatment facility, and types of industrial contributors);

(2) The dilution of the effluent in the receiving water (ratio of

effluent flow to receiving stream flow);

(3) Existing controls on point or non-point sources, including

total maximum daily load calculations for the water body segment and

the relative contribution of the POTW;

(4) Receiving stream characteristics, including possible or known

water quality impairment, and whether the POTW discharges to a coastal

water, one of the Great Lakes, or a water designated as an outstanding

natural resource; or

(5) Other considerations (including but not limited to the history

of toxic impact and compliance problems at the POTW), which the

Director determines could cause or contribute to adverse water quality

impacts.

The Agency specifically solicits comment on whether the requirement

to conduct WET testing should be extended to other POTWs. The Agency is

considering several options, including:

(1) requiring all minor POTWs not covered under the above criteria

to submit the results of a minimum of one WET test, so as to allow the

permitting authority to scan for minor POTWs that may have toxicity

problems; and

(2) where a State has identified a watershed as a priority

watershed, requiring one or more WET tests for all POTWs discharging to

the watershed.

Third, the Agency proposes to require WET tests for each outfall

from the treatment works (not including CSOs), with exceptions for

identical outfalls similar to those proposed for pollutant specific

data, as discussed above. Proposed Sec. 122.21(j)(4) would require that

data be separately provided for each outfall through which treated

sanitary effluent is discharged to waters of the United States. EPA

proposes to allow the applicant, where the POTW has two or more

outfalls with substantially identical effluents discharging to the same

receiving stream, and with the approval of the permitting authority on

a case-by-case basis, to provide the results of WET testing from only

one outfall as representative of all such outfalls. For outfalls to be

considered substantially identical, they should at a minimum be located

at the same treatment plant, be subject to the same level of treatment

and have passed through the same types of treatment processes. The

Agency solicits comment on this approach and, particularly, on whether

WET test data should be separately collected from all such outfalls.

The existing WET testing requirements do not specify the number or

frequency of tests required, the number of species to be used, or

whether to provide the results of acute or chronic toxicity tests.

Proposed Sec. 122.21(j)(4) sets minimum reporting requirements of four

quarterly tests for a year, using multiple species (no less than two

species, e.g., fish, invertebrate, plant), and testing for acute or

chronic toxicity, depending on the range of receiving water dilution.

This proposal is based in part on Agency guidance, and in part on

Agency experience in the implementation of that guidance.

In March 1991, EPA issued guidance establishing Agency policy for

WET testing protocols (see ``Technical Support Document for Water

Quality-Based Toxics Control (1991),'' or ``TSD''). In that document,

the Agency recommended ``as a minimum that three species (for example,

a vertebrate, an invertebrate, and a plant) be tested quarterly for a

minimum of a year'' (see, TSD p. 58). In making this recommendation,

the Agency explained that the use of three species is more protective

than two species since a wider range of species sensitivity can be

measured. In practice, however, a number of permitting authorities are

only requiring the use of two species. Since existing requirements for

using three species are less common, the Agency proposes to require the

use of ``multiple species.'' The Agency proposes this as a minimum

requirement, and does not intend it as a change in the policy

recommendations outlined in the TSD.

In setting a minimum frequency of quarterly testing for a year, the

Agency indicated that this was recommended to adequately assess the

variability of toxicity observed in effluents, as follows:

Below this minimum, the chances of missing toxic events

increase. The toxicity test result for the most sensitive of the

tested species is considered to be the measured toxicity for a

particular effluent sample.

The data generation recommendations * * * represent minimum

testing requirements. Since uncertainty regarding whether or not an

effluent causes toxic impact is reduced with more data, EPA

recommends that this test frequency be increased where necessary to

adequately assess effluent variability. If less frequent testing is

required in the permit, it is preferable to use three species tested

less frequently than to test the effluent more frequently with only

a single species whose sensitivity to the effluent is not well

characterized. (TSD, p. 59)

It is the Agency's understanding that many permitting authorities

currently require quarterly testing. While other permitting authorities

require less frequent monitoring, at least from some facilities, in

many instances such information is being collected on a yearly basis.

This proposal would only require one cycle of quarterly testing within

three years of the date of the permit application (i.e., only once in

five years). The Agency solicits comment on whether this is an

appropriate frequency, and specifically whether permitting authorities

should be allowed to waive quarterly testing on a case-by-case basis.

Commenters should indicate what specific criteria would have to be met

for such a waiver.

The current whole effluent toxicity testing requirements, at

Sec. 122.21(j), do not specify whether applicants should test for acute

or chronic toxicity. An acute toxicity test is defined as a test of 96-

hours or less in duration in which lethality (of the test organism) is

the measured endpoint. A chronic toxicity test is defined as a long-

term test in which sublethal effects, such as fertilization, growth,

and reproduction, are usually measured, in addition to lethality. (TSD,

p.4.)

[[Page 62567]]

The Agency proposes that testing for acute or chronic toxicity be

based upon the ratio of receiving water to effluent at the edge of the

mixing zone. The term ``mixing zone'' refers to an area around an

outfall within which a State may allow ambient concentrations above

water quality criteria levels. States may have two or more mixing zones

(e.g., an acute mixing zone, beyond which acute criteria must be met,

and a chronic mixing zone, beyond which chronic criteria must be met).

Not all States allow calculation of effluent limitations using mixing

zones, and mixing zones are not universally allowed by States that do

allow use of mixing zones. For purposes of determining whether acute or

chronic toxicity testing is appropriate, the ratio of receiving water

to effluent should be considered at the point nearest to the outfall

where water quality criteria are required to be met. This proposal

incorporates the recommendations of the 1991 TSD, which stated that

applicants should conduct acute or chronic testing based upon the

following dilutions:

(A) Acute toxicity testing if the dilution of the effluent is

greater than 1000:1 at the edge of the mixing zone;

(B) Acute or chronic toxicity testing if the dilution of the

effluent is between 100:1 and 1000:1 at the edge of the mixing zone.

Acute testing may be more appropriate at the higher end of this range

(1000:1), and chronic testing may be more appropriate at the lower end

of this range (100:1); and

(C) Chronic testing if the dilution of the effluent is less than

100:1 at the edge of the mixing zone. (See TSD, pp. 58-59.) In order to

determine the proper dilution ratio, measurement should be made at the

point where chronic criteria apply. Thus, where there is a chronic

mixing zone, the dilution ratio should be measured at the edge of the

chronic mixing zone. It may be inappropriate to use an acute test if

there is too little dilution.

Although the Agency is not proposing to require that applicants

follow these recommendations, the Agency believes that they are

reasonable, based on the discussion in the TSD. For example, with

regard to the use of chronic toxicity testing where the dilution ratio

falls below 100:1, the Agency stated, ``[t]he rationale for this

recommendation is that chronic toxicity has been observed in some

effluents down to the 1.0 percent effect concentration. Therefore,

chronic toxicity tests, although somewhat more expensive to conduct,

should be used directly in order to make decisions about toxic

impact.'' (TSD, p. 59.) The Agency solicits comment as to whether these

recommendations should instead be added as requirements in the final

rule.

The whole effluent toxicity testing requirements that currently

exist, at Sec. 122.21(j), do not specify which information must be

reported as a result of such testing. To clarify reporting requirements

for the applicant and the permit writer, EPA today proposes specific

reporting requirements in Sec. 122.21(j)(4). First, applicants required

to perform WET tests under the proposed rule are required to indicate

the number of tests performed since permit reissuance and since any

modification of the permit pursuant to 40 CFR 122.62(a). It is up to

the permitting authority to determine whether previously submitted

results provide the equivalent of the information proposed to be

required. Proposed Sec. 122.21(j)(4)(v) sets forth in detail the

information that the Agency believes will provide the permit writer

with adequate information to determine whether the test was conducted

in accordance with EPA methods and protocols and whether the reported

results are otherwise valid. The Agency solicits comment on whether the

information requested is the proper information to require or whether

other information should be required, including for purposes of quality

assurance. As in the current regulatory requirements, in conducting the

testing, applicants must use EPA-approved methods. The Agency solicits

comment on this approach.

Where biomonitoring data have been submitted to the permitting

authority within three years of the permit application, applicants

would be required to provide the dates on which such data were

submitted and a summary of the results of each such test. Where any WET

test conducted within three years prior to the permit application

reveals toxicity, proposed Sec. 122.21(j)(4)(vi) would require that

applicants, at a minimum, provide any information they may have on the

cause of toxicity. Further, applicants would be required to provide

written details of any toxicity reduction evaluation conducted.

Toxicity reduction evaluations (TREs) are used to investigate the

causes and sources of toxicity and identify the effectiveness of

corrective actions to reduce it. The purpose of a TRE is to help bring

dischargers into compliance with water quality-based whole effluent

toxicity requirements where monitoring indicates unacceptable effluent

toxicity. The permitting authority may require a permittee to conduct a

TRE in those cases where the discharger is unable to adequately explain

and immediately correct non-compliance with a whole effluent toxicity

permit limit or requirement. TREs may be required of permittees under

existing permits or through a variety of other legally binding

mechanisms. Since the results from TREs may have considerable impact in

the evaluation of municipal permit applications, this kind of

information would need to be available to the permit writer. It is

recommended that applicants conducting a TRE at the time of permit

application would provide a brief summary of the status and results

from the ongoing TRE.

The Agency solicits comment on all of the above proposed revisions

to the existing WET test requirements.

5. Industrial Discharges, Pretreatment, and RCRA/CERCLA Waste

Today's proposed rule would require applicants to provide

information on industrial (non-domestic) discharges to the POTW,

particularly discharges from significant industrial users (SIUs). This

information is to be required by proposed Sec. 122.21(j)(5).

Proposed Sec. 122.21(j)(5)(i) would require the a

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