Modification of Secondary Treatment Requirements for Discharges Into Marine Waters

SUMMARY: EPA is proposing an amendment to the regulations contained at

40 CFR Part 125, Subpart G, which implement section 301(h) of the Clean

Water Act (``CWA'' or ``Act''), 33 U.S.C. 1311(h). Section 301(h)

provides for modifications of secondary treatment requirements for

discharges into marine waters by publicly owned treatment works (POTWs)

that demonstrate their compliance with the 301(h) criteria. As required

by statutory amendments, a provision was added to the 301(h)

regulations in 1994 that requires 301(h) POTWs to show they are

removing a minimum of 30 percent of the biological oxygen demanding

material (BOD) from their influent. Under the rule, compliance with the

30-percent removal requirement of BOD was generally to be achieved on a

monthly-average basis. The rule did, however, allow some applicants,

subject to an eligibility provision, to request that they be allowed to

average their BOD removal percentages over a longer than monthly

period. The eligibility provision excluded facilities that had

demonstrated an ability to achieve 30-percent BOD removal on a monthly-

average basis over the calendar year prior to August 9, 1994. Today's

proposal would amend 40 CFR 125.60(c)(1) to provide increased

flexibility by removing the eligibility provision, thereby allowing any

301(h) POTWs to apply for a longer than monthly BOD averaging period.

The remaining provisions of the 301(h) regulations remain in full force

and effect, and are not the subject of this proposed rule.

DATES: Comments on this proposed amendment must be submitted by March

28, 1996.

ADDRESSES: Comments on this proposed amendment should be addressed to:

Virginia Fox-Norse, Oceans and Coastal Protection Division (4504F),

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

20460; (202) 260-8448. The official record for this rulemaking is

available for viewing at EPA's Water Docket; Room L-102, 401 M Street,

SW, Washington, DC 20460. For access to the Docket materials, call

(202) 260-3027 between 9 a.m. and 3:30 p.m., Monday through Friday,

excluding legal holidays, for an appointment. The EPA public

information regulation (40 CFR part 2) provides that a reasonable fee

may be charged for copying.

FOR FURTHER INFORMATION CONTACT: Virginia Fox-Norse, Office of

Wetlands, Oceans and Watersheds, Oceans and Coastal Protection Division

(4504F), U.S. Environmental Protection Agency, 401 M St., SW,

Washington, D.C. 20460; (202) 260-8448.

SUPPLEMENTARY INFORMATION:

Preamble Outline

I. Background

A. Water Quality Act Amendments of 1987

B. Final Rulemaking of 1994

C. Legal Challenge to Regulations

II. Today's Proposal

III. Discussion of Alternatives

IV. Supporting Documentation

I. Background

A. Water Quality Act Amendments of 1987

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

(WQA) (Pub. L. 100-4), which amended CWA section 301(h) in several

important respects. Among other things, the WQA added a new section

301(h)(9), the provision relevant to this rulemaking. Section 301(h)(9)

requires that ``* * * at the time the 301(h) modification becomes

effective, the applicant will be discharging effluent which has

received at least primary or equivalent treatment * * *.'' Section

301(h)(9) also defined primary or equivalent treatment as ``treatment

by screening, sedimentation, and skimming adequate to remove at least

30 percent of the biochemical oxygen demanding material (BOD) and of

the suspended solids (SS) in the treatment works influent, and

disinfection, where appropriate.''

B. Final Rulemaking of 1994

EPA published the final regulations implementing the WQA amendments

to section 301(h) on August 9, 1994 (59 FR 40642). That rulemaking

added provisions in 40 CFR 125.60 regarding, among other things, the

statutory requirement for a minimum of primary or equivalent treatment.

Under the proposed regulations (January 24, 1991, 56 FR 2814)

applicants would have had to demonstrate compliance with the 30 percent

BOD removal requirement using a monthly averaging period for

calculating compliance. However, a number of commenters indicated that

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

monthly average basis in certain cases. In response, in the August 1994

final rule, EPA added Sec. 125.60(c) to provide flexibility to POTWs,

in certain specified circumstances, to use up to a yearly averaging

period to calculate compliance with the 30-percent removal requirements

for BOD. The flexibility is only for the averaging period used to

calculate compliance. The rule still requires all applicants to meet

the statutory 30-percent removal requirement for BOD. As discussed in

the preamble to the final regulations (59 FR 40648-40649), EPA believed

that the monthly averaging period would still be appropriate for most

applicants.

Under the second sentence of Sec. 125.60(c)(1), facilities that had

demonstrated an ability to achieve 30 percent removal of BOD on a

monthly average basis over the calendar year prior to August 9, 1994,

(the date the rule was published) were excluded from eligibility to

apply for this longer than monthly averaging period. Specifically, this

sentence (the ``eligibility provision'') states:

If, however, the applicant has demonstrated an ability to

achieve 30 percent removal of BOD on a monthly average basis over

the calendar year prior to August 9, 1994, the applicant shall not

be eligible for an averaging basis other than monthly.

This provision was based on the assumption that facilities that had

consistently achieved 30 percent removal of BOD on a monthly average

basis would continue to be capable of achieving the 30 percent

performance standard on a monthly basis.

C. Legal Challenge to Regulations

In December 1994, four Alaskan municipalities filed a petition for

review in the U.S. Court of Appeals for the Ninth Circuit challenging,

in particular, the above-described limitation on eligibility for

applying for a longer than monthly averaging period to calculate

compliance with the 30-percent removal requirement for BOD. [Anchorage

Water & Wastewater Utility, et al, v. U.S. EPA, No. 94-70913 (9th

Cir.)] Petitioners claim that all POTWs should be eligible at least to

apply for alternative averaging periods for removal of BOD. Because the

issues raised by these parties concern the eligibility provision--which

EPA added at the time of the final rule in response to public comments

on the proposal--they are arising now for the first time.

The petitioners believe the eligibility provision is unwarranted

and inappropriate because there may be

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cases in which a POTW may have met the 30-percent removal requirement

for the preceding year, but may not be able to meet it on a monthly

basis in the future for reasons beyond their control.

II. Today's Proposal

EPA has considered the issues raised by the Alaskan municipalities.

In response, EPA agrees that the absolute bar represented by the

eligibility provision is unnecessary and could be too inflexible.

Therefore, EPA today proposes to delete the eligibility provision

(i.e., the second sentence of 125.60(c)(1)). This proposal would not

change the showing that POTWs must make to have the longer than monthly

averaging period approved, and EPA continues to expect that situations

where the longer averaging period is shown to be justified will be the

exception rather than the rule.

The Agency emphasizes that removing the eligibility provision would

not automatically provide any POTW with a longer averaging period for

determining compliance with the 30-percent removal requirement for BOD.

Instead, it simply allows all POTWs to request a longer averaging

period. Under the regulations, POTWs who make such a request will

continue to be required to demonstrate to the satisfaction of the

Regional Administrator that a longer period is warranted in order to be

granted relief from the requirement to meet BOD removal on a monthly

basis. In determining whether to grant a POTW's request for longer than

monthly averaging under Sec. 125.60(c)(2)(iii), the Regional

Administrator will still consider the POTW's historical removal data as

a relevant factor. EPA also notes that if it grants a longer averaging

period, the required frequency of monitoring for BOD will remain the

same as if the period for calculating compliance for BOD removal was

the monthly average basis.

As noted above, all POTWs remain subject to the statutorily

required 30 percent BOD removal condition, and all POTWs that want a

longer than monthly averaging period will need to make a showing to the

Regional Administrator that a longer period is warranted, and actual

monitoring frequencies for BOD will not change. These safeguards,

coupled with the continued requirement that the discharge must meet all

the other 301(h) environmental criteria, lead EPA to believe that the

level of environmental protection would not be changed by this proposal

in any material way, and the flexibility provided is appropriate.

III. Discussion of Alternatives

The Agency considered other alternatives for providing relief from

the strict bar on requesting a longer averaging period represented by

the eligibility provision, such as: (1) deleting the eligibility

provision of Sec. 125.60(c)(1) and restricting the factors in the

Regional Administrator's determination to grant or deny the longer

averaging period; (2) retaining the eligibility provision, but adding a

provision that allows an applicant that achieved 30-percent removal of

BOD on a monthly average basis over the year preceding August 9, 1994,

to satisfy the Regional Administrator that the data did not reflect

representative conditions; and (3) retaining a modified eligibility

provision that would be based on the BOD removal rates achieved over

longer than one year preceding August 9, 1994, e.g., 2 years, to

account for a range of conditions.

EPA rejected these alternatives because simply eliminating the

eligibility provision in Sec. 125.60(c)(1) best provided the necessary

flexibility while still providing adequate environmental safeguards.

EPA believes that removing the eligibility provision while still making

past monitoring performance a relevant factor in determining a longer

than monthly averaging period, will not result in any decrease in

environmental protection. Deleting this provision will form the basis

for a settlement of the legal challenge brought by the Alaskan

municipalities. EPA also proposes to delete a parallel clause in

Sec. 125.60(c)(2), as a conforming change.

Nevertheless, the Agency requests comments on all aspects of

today's proposal, including whether any of these alternatives or other

alternatives not discussed here, including not changing the eligibility

provision, would be a more appropriate course of action on this issue.

EPA will consider adopting any of the above alternatives or others that

are advocated in any public comments.

IV. Supporting Documentation

Analyses under E.O. 12866, the Unfunded Mandates Reform Act of

1995, the Regulatory Flexibility Act, and the Paperwork Reduction Act.

Because today's action simply proposes to remove provisions of an

existing rule from the CFR that limit the ability of affected POTWs to

request flexibility in calculating compliance with removal requirements

for BOD, this action has no regulatory impact and is not a

``significant'' regulatory action within the meaning of E.O. 12866, and

is therefore not subject to OMB review.

This action also does not impose any Federal mandate on State,

local or tribal governments or the private sector within the meaning of

the Unfunded Mandates Reform Act of 1995. For the same reasons,

pursuant to the Regulatory Flexibility Act, I certify that this action

would not have a significant economic impact on a substantial number of

small entities. Finally, deletion of these provisions from the CFR does

not affect requirements under the Paperwork Reduction Act.

List of Subjects in 40 CFR Part 125

Environmental protection, Marine point source discharges, Reporting

and recordkeeping, Waste treatment and disposal, Water pollution

control.

Dated: February 15, 1996.

Carol M. Browner,

Administrator.

For the reasons set forth in the preamble, EPA proposes to amend 40

CFR part 125, subpart G as follows:

PART 125--CRITERIA AND STANDARDS FOR THE NATIONAL POLLUTANT

DISCHARGE ELIMINATION SYSTEM

1. The authority citation for part 125 continues to read as

follows:

Authority: Clean Water Act, as amended by the Clean Water Act of

1977, 33 U.S.C. 1251 et seq., unless otherwise noted.

Subpart G--Criteria for Modifying the Secondary Treatment

Requirements Under Section 301(h) of the Clean Water Act

2. Section 125.60 is proposed to be amended by removing paragraph

(c)(1); by redesignating paragraphs (c)(2) as (c)(1) and (c)(3) as

(c)(2); and by revising the introductory text of newly designated

paragraph (c)(1) to read as follows:

Sec. 125.60 Primary or equivalent treatment requirements.

* * * * *

(c)(1) An applicant may request that the demonstration of

compliance with the requirement under paragraph (b) of this section to

provide 30 percent removal of BOD be allowed on an averaging basis

different from monthly (e.g., quarterly), subject to the demonstrations

provided in paragraphs (c)(1)(i), (ii) and (iii) of this section. The

Administrator may approve such

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requests if the applicant demonstrates to the Administrator's

satisfaction that:

* * * * *

[FR Doc. 96-4387 Filed 2-26-96; 8:45 am]

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