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

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## Record

- **Collection:** Federal Register
- **Document type:** Proposed Rule
- **Published:** December 6, 1995
- **Citation:** 60 FR 62546

## Text

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 the

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A95-28213. Public record. Not legal advice.