[Federal Register Volume 59, Number 152 (Tuesday, August 9, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-19058]


[[Page Unknown]]

[Federal Register: August 9, 1994]


_______________________________________________________________________

Part II





Environmental Protection Agency





_______________________________________________________________________



40 CFR Part 125



Discharges Into Marine Waters; Modification of Secondary Treatment 
Requirements; Final Rule
ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 125

[FRL-5025-7]

 

Modification of Secondary Treatment Requirements for Discharges 
Into Marine Waters

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: EPA is promulgating final amendments to the regulations 
contained in 40 CFR part 125, subpart G, which implement section 301(h) 
of the Clean Water Act (``CWA'' or ``Act''), 33 U.S.C. section 1311(h). 
Section 301(h) provides for modifications of secondary treatment 
requirements for discharges into marine waters by publicly owned 
treatment works (POTWs) that demonstrate their compliance with the 
section 301(h) criteria. These regulatory revisions are being 
promulgated to respond to the amendments to section 301(h) contained in 
section 303 of the Water Quality Act of 1987 (``WQA'') and to reflect 
program experience. These amendments revise portions of the existing 
part 125, subpart G, regulations and simplify and revise the 
application requirements contained in Appendices A and B of subpart G.

DATES: Effective Date: These regulations take effect on September 8, 
1994.
    Promulgation Date: In accordance with 40 CFR 23.2, the 
Administrator's promulgation occurs at 1:00 p.m. EDT on August 23, 
1994.

ADDRESSES: Copies of comments submitted and the docket for this 
rulemaking are available for review at EPA's Water Docket; Room L-102, 
401 M St., SW., Washington, DC 20460. For access to the Docket 
materials, call (202) 260-3027 between 9 a.m. and 3:30 p.m. for an 
appointment.

FOR FURTHER INFORMATION CONTACT: Virginia Fox-Norse, Oceans and Coastal 
Protection Division (4504F), U.S. Environmental Protection Agency, 401 
M Street, SW, Washington, DC 20460, (202) 260-8448. An amended 
Technical Support Document (TSD) has been prepared to provide guidance 
for preparing applications and complying with provisions of the 
regulations. This amended TSD completely supersedes the 1982 revised 
section 301(h) TSD, and will be available soon after these regulations 
are published in the Federal Register. Requests for the amended TSD 
should be made to Virginia Fox-Norse at the address given in this 
section.

SUPPLEMENTARY INFORMATION:

Preamble Outline

I. Background
    A. History of the section 301(h) Program
    B. Water Quality Act Amendments of 1987
    C. Overview of Public Comments
    D. Summary of Changes Made from the 1991 Proposal
II. Section by Section Analysis
III. Supporting Documentation
    A. Regulatory Flexibility Act Analysis
    B. Executive Order 12291
    C. Paperwork Reduction Act

I. Background

A. History of the Section 301(h) Program

    Under section 301(b)(1)(B) of the Clean Water Act of 1972 
(hereinafter CWA or Act) (33 U.S.C. Sec. 1311(b)(1)(B)), POTWs were 
required to achieve secondary treatment by July 1, 1977. The secondary 
treatment requirements establish technology-based effluent limitations 
for biochemical oxygen demand (BOD), suspended solids (SS), and pH. See 
40 CFR part 133. Some municipalities with POTWs that discharged into 
marine waters argued that secondary treatment might not be necessary to 
protect certain marine waters where deeper waters with large tides and 
currents can allow for greater dilution and dispersion than discharges 
into fresh waters. As a result, Congress amended the CWA in 1977 to add 
section 301(h), 33 U.S.C. 1311(h), to allow the Administrator, upon 
application by a POTW and with the concurrence of the State, to issue a 
National Pollutant Discharge Elimination System (NPDES) permit that 
modifies the secondary treatment requirements of section 301(b)(1)(B). 
In order to obtain a section 301(h) waiver, the applicant must 
demonstrate to the satisfaction of the Administrator that the proposed 
discharge complies with a set of criteria intended to protect the 
marine environment. In addition, section 301(j)(1)(A) of the Act 
established a deadline for filing a section 301(h) application. EPA 
regulations and an accompanying technical support document (TSD) to 
implement the section 301(h) program were issued in 1979. (44 FR 34784, 
June 15, 1979.)
    Section 301(h) was later amended by the Municipal Wastewater 
Treatment Construction Grants Amendments (MWTCGA) of 1981 (Pub. L. 97-
117, 95 Stat. 1623). The MWTCGA extended the deadline for filing 
section 301(h) applications to December 29, 1982, and modified 
applicant eligibility requirements. In response to the MWTCGA and 
program experience, the section 301(h) regulations and the TSD were 
revised in 1982. (See 47 FR 24918, June 8, 1982, and 47 FR 53666, 
November 26, 1982.)

B. Water Quality Act Amendments of 1987

    On February 4, 1987, Congress passed the Water Quality Act of 1987 
(Pub. L. 100-4, hereinafter WQA), further amending section 301(h) of 
the CWA. Section 303 of the WQA, which contains the amendments to 
section 301(h), made the following changes to section 301(h) of the 
CWA:
    (1) The discharge of pollutants, in accordance with modified 
requirements, cannot interfere, alone or in combination with pollutants 
from other sources, with the attainment or maintenance of water quality 
which assures the protection of the resources and uses listed in CWA 
section 301(h)(2).
    (2) The scope of required monitoring is limited to only those 
scientific investigations necessary to study the effects of the 
proposed discharge.
    (3) For POTWs serving a population of 50,000 or more, with respect 
to any toxic pollutant introduced by an industrial source for which 
pollutant there is no applicable pretreatment requirement in effect, 
the applicant must demonstrate that sources introducing waste into the 
POTW are in compliance with all applicable pretreatment requirements, 
the applicant will enforce those requirements, and the applicant has in 
effect a pretreatment program which, in combination with the treatment 
of discharges from the POTW, removes the same amount of such toxic 
pollutant as would be removed if the POTW were to apply secondary 
treatment and had no pretreatment program for such pollutant. (For 
purposes of this preamble, this requirement will be referred to as the 
``urban area pretreatment requirement'').
    (4) At the time the section 301(h) modification becomes effective, 
the applicant will be discharging effluent which has received at least 
primary or equivalent treatment and which meets water quality criteria 
established under CWA section 304(a)(1) after initial mixing in the 
waters surrounding or adjacent to the point at which the effluent is 
discharged. The statutory amendments define primary or equivalent 
treatment as treatment by screening, sedimentation, and skimming 
adequate to remove at least 30 percent each of BOD and of SS, and 
disinfection, where appropriate.
    (5) No modification may be issued for a discharge into marine 
waters unless those waters exhibit characteristics assuring that water 
providing dilution does not contain significant amounts of previously 
discharged effluent from the POTW.
    (6) No section 301(h) modified permit may be issued authorizing the 
discharge of any pollutant into saline estuarine waters which at the 
time of the application exhibit certain stressed conditions specified 
in the statute, without regard to the presence or absence of a causal 
relationship between those conditions and the applicant's current or 
proposed discharge.
    (7) No permits may be issued for section 301(h) modified discharges 
into the New York Bight Apex.
    (8) Any POTW that had a contractual agreement before December 31, 
1982, to use an outfall operated by another POTW which has applied for 
or received a section 301(h) modified permit may apply for a section 
301(h) permit in its own right within 30 days of WQA enactment.
    (9) Certain provisions of the WQA amendments do not apply to 
applications which received final or tentative approval before 
enactment of the WQA. These permits will, however, be subject to the 
new section 301(h) requirements upon permit renewal.

C. Overview of Public Comments

    EPA proposed regulations on January 24, 1991, responding to the 
requirements of the WQA and program experience (56 FR 2814). The 
preamble to the proposed regulations explains the proposed changes in 
the regulations in response to the WQA. On March 7, 1991, EPA held a 
public hearing in Washington, DC, to receive comment on the proposal. 
The public comment period was open for 60 days and closed on March 25, 
1991. Although some comments were not received until April 8, 1991, EPA 
has elected to consider all comments received in developing this final 
rule. EPA received both written comments and comments at the public 
hearing on the proposed rule from a total of 17 commenters: eight 
section 301(h) applicants, two State governments, four independent 
consultants, and three environmental/public interest groups.
    Although the comments received addressed many of the proposed 
changes, the principal areas of concern to commenters focused on 
primary or equivalent treatment requirements, urban area pretreatment, 
and the water quality criteria requirements. A brief summary of the 
comments on these areas is set out below, and a more detailed 
discussion of all comments received is set out later in the section-by-
section analysis of this preamble.
    Comments regarding primary treatment raised issues related to the 
30 percent removal requirement for BOD, the cost to small communities 
of complying, and the time limit to meet the primary treatment 
requirement. Comments on urban area pretreatment raised issues about 
use of the pilot plant approach to demonstrate secondary removal 
equivalency for toxics, development of local pretreatment limits, which 
pollutants are subject to this requirement, the time limit to meet this 
requirement, and the cost of compliance. Comments regarding the section 
304(a)(1) water quality criteria focused on setting risk levels for 
carcinogens, determining mixing zones for evaluating compliance with 
State water quality standards, and the role of the section 304(a)(1) 
water quality criteria in cases where the State has adopted a different 
water quality standard under CWA section 303.

D. Summary of Changes Made From the 1991 Proposal

    For the convenience of the reader, the following discussion 
provides a brief overview of the sections and subject areas in which 
today's final rule makes changes from the January 24, 1991, proposal. 
Table 1 of the preamble also provides a summary of those changes. A 
full discussion of the changes made in the regulations and proposal is 
set out later in the section-by-section analysis of today's preamble.
    Today's final rule would make a clarifying change from the 1991 
proposal in Sec. 125.58(n), which defines the term ``ocean waters.'' 
This change is intended to clarify the distinction between ``saline 
estuarine waters'' and ``ocean waters,'' a distinction important to the 
application of the WQA provisions prohibiting section 301(h) discharges 
into stressed saline estuarine waters.
    Today's final rule makes a change from the 1991 proposal in 
Sec. 125.59, which addresses general application requirements. The 
proposal allowed the granting of tentative approvals if the applicant 
demonstrated good faith to come into compliance with all the 
requirements of this subpart, based on a schedule in accordance with 
Sec. 125.59(f)(3)(ii). EPA received a comment asking that this section 
be clarified. The commenter stated that because Sec. 125.59(f)(3)(ii) 
only applies to primary treatment and urban area pretreatment 
requirements, the section could be interpreted as allowing compliance 
schedules only for those requirements and not for all requirements. 
Section 125.59(h) has been amended to allow compliance schedules for 
all requirements.
    This change merely clarifies EPA's original intent.
    Today's final rule makes a change from the 1991 proposal in 
Sec. 125.60, which addresses the WQA requirements for compliance with 
primary or equivalent treatment. The proposal specified a monthly 
averaging period for determining compliance with the 30 percent BOD 
removal requirement for BOD and SS established by the WQA. In response 
to comments on this issue, the final rule adds the opportunity under 
certain special circumstances for applicants unable to meet the 30 
percent removal requirement for BOD on the basis of a monthly average 
to request a longer averaging period (up to annual) in order to provide 
needed flexibility in calculating compliance. This averaging basis is 
not available for those POTWs that have already shown a consistent 
ability to meet the 30-percent removal requirement for BOD on a monthly 
basis. Because no comments were received indicating a need for 
flexibility in the monthly averaging period for determining compliance 
with the 30 percent suspended solids removal requirement, this change 
applies only to the BOD removal requirements.
    The final rule makes a change to the proposed regulatory language 
of Sec. 125.62 with regard to determining compliance with State water 
quality standards. Comments were received on the issue of mixing zones, 
and in evaluating these comments, EPA noted that the proposal had 
inadvertently omitted language contained in the existing 1982 section 
301(h) regulations on meeting applicable water quality standards at and 
beyond the zone of initial dilution. The final rule promulgated today 
would retain that language so that the original requirement of the 1982 
regulations for meeting State water quality standards at the edge of 
the zone of initial dilution remains in effect.
    The final rule also makes a change from the 1991 proposal in 
Sec. 125.63, which addresses section 301(h) monitoring programs. While 
implied, the proposal did not include explicit regulatory language 
requiring monitoring to determine compliance with the primary treatment 
requirements. It also did not include, under general requirements, an 
explicit requirement to have a monitoring program to demonstrate 
compliance with water quality criteria as well as water quality 
standards, as applicable. The final rule adds these requirements to 
Sec. 125.63 (a)(1) and (d)(2) in order to ensure that applicants 
provide data on their compliance with these requirements over the life 
of the permit.
    In addition, in response to comments, the final rule makes several 
clarifying changes to Sec. 125.65, which addresses the urban area 
pretreatment requirements. The changes are intended to provide 
additional guidance on implementation of this section with regard to 
the development of pretreatment requirements and secondary equivalency 
for toxics removal.
    Some conforming and organizational changes were made to the 
application questionnaire contained in the Appendix to these 
regulations. These changes address amendments made in the final rule 
and simplify its use by applicants and the Agency to determine 
compliance with the 301(h) requirements.
    The remaining sections of the rule (Secs. 125.56, 125.57, 125.61, 
125.64, 125.66-125.68) remain unchanged from the 1991 proposal.

                                                     Table 1                                                    
----------------------------------------------------------------------------------------------------------------
 Final subpart                                                                                                  
      G                            Contents                                Changes from 1991 Proposal           
----------------------------------------------------------------------------------------------------------------
125.56          Scope and Purpose.............................  Unchanged.                                      
125.57          Law governing issuance of a modified permit...  Unchanged.                                      
125.58          Definitions...................................  Clarified ocean water definition.               
125.59          General.......................................  Clarified requirements for compliance schedules.
125.60          Primary or equivalent treatment requirements..  Change to BOD removal averaging period under    
                                                                 certain circumstances.                         
125.61          Existence of and compliance with applicable     Unchanged.                                      
                 water quality standards.                                                                       
125.62          Attainment or maintenance of water quality      Change to mixing zone provisions.               
                 which assures protection of water supplies,                                                    
                 and the protection and propagation of a                                                        
                 balanced, indigenous population of shellfish,                                                  
                 fish and wildlife, and allows recreational                                                     
                 activities.                                                                                    
125.63          Establishment of a monitoring program.........  Monitoring provisions regarding primary         
                                                                 treatment compliance added.                    
125.64          Effect of discharge on other point and          Unchanged.                                      
                 nonpoint sources.                                                                              
125.65          Urban area pretreatment program...............  Clarifying language added.                      
125.66          Toxics control program........................  Unchanged.                                      
125.67          Increase in effluent volume or amount of        Unchanged.                                      
                 pollutants discharged.                                                                         
125.68          Special conditions for section 301(h) modified  Unchanged.                                      
                 permits.                                                                                       
Appendix        Applicant questionnaire for modification of     Conforming and Organizational changes made.     
                 secondary treatment requirements.                                                              
----------------------------------------------------------------------------------------------------------------

II. Section-by-Section Analysis

    This section provides a description of each section in the 
regulation and discusses the public comments received. Citations to 
sections of the part 125, subpart G, regulations in the discussion 
below refer to the section numbers of the regulations as numbered under 
today's rule.
    Although portions of the section 301(h) regulations that were not 
proposed for change are being reprinted with today's action, this has 
been done for the convenience of the reader. EPA did not reconsider 
those existing portions of the regulations and they are not subject to 
challenge as part of this final rulemaking.
    Section 125.56: This section establishes the general scope and 
purpose of the regulations. EPA did not propose to revise this section, 
and no comments were received. This section remains unchanged.
    Section 125.57: This section sets forth the statutory language 
applicable to section 301(h) modified permits. No comments were 
received, and this section remains unchanged from the proposed rule.
    Section 125.58: This section sets forth the definitions applicable 
to the subpart G regulations. As a result of section 303 of the WQA, 
the 1991 proposal added definitions of ``primary or equivalent 
treatment,'' ``pretreatment,'' ``categorical pretreatment standard,'' 
``secondary removal equivalency,'' ``water quality criteria,'' 
``permittee,'' and ``New York Bight Apex.'' In addition, the proposal 
made changes to existing definitions for ``industrial source,'' ``ocean 
waters,'' and ``stressed waters.'' EPA received significant comments on 
two aspects of the primary or equivalent treatment requirements and the 
definition of saline estuarine waters.

Definition of Primary Treatment

    Section 125.58(r) of the proposed rule defined ``primary or 
equivalent treatment'' as treatment by screening, sedimentation, and 
skimming adequate to remove at least 30 percent of the biochemical 
oxygen demanding (BOD) material and of the suspended solids (SS) in the 
treatment works influent, and disinfection, where appropriate. This 
definition was taken directly from the language of section 303(d) of 
the WQA. The preamble to the proposed rule further explained that the 
terms ``sedimentation'' and ``skimming'' could include a range of 
treatment techniques such as coagulation and precipitation (physical 
adjuncts to sedimentation), and flotation and subsequent removal by 
skimming, in order to achieve the required 30 percent removal of BOD 
and SS. (56 FR 2818). Although certain types of treatment are specified 
in the statutory definition (i.e., screening, sedimentation, and 
skimming), EPA believes the principal intent of the statutory 
definition is to ensure compliance with the 30 percent BOD and SS 
removal requirements, rather than specifying the exact methods used to 
achieve such removal rates. For example, chemical addition, 
coagulation, and precipitation might be necessary in addition to the 
specific treatment processes listed in the definition in order to 
achieve the mandated 30 percent removal, and this would be allowable.
    Several commenters sought a change to the definition due to 
concerns with the requirement to achieve 30 percent BOD removal. As 
discussed below in more detail, the commenters' concerns centered on 
the practical difficulties in achieving 30 percent BOD removal by the 
physical processes of primary treatment. Some noted that from an 
engineering standpoint, technologies for primary treatment are aimed at 
removing solids, rather than soluble BOD.
    Some commenters stated that their review of the legislative history 
of the WQA amendments to section 301(h) shows that Congress did not 
articulate any rationale for defining primary treatment as 30 percent 
removal of BOD. The commenters argued that Congress' intent was to stop 
the discharge of untreated sewage from waiver recipients. They also 
pointed out that Congress defined primary treatment as consisting only 
of skimming, screening, and sedimentation, and did not include more 
sophisticated technologies, such as coagulation and precipitation. 
Therefore, they state, EPA must adopt that literal definition and 
acknowledge that skimming, screening and sedimentation might not be 
enough to achieve 30 percent removal of BOD. Commenters sought a change 
to the definition of primary treatment to reflect only the physical 
processes and not the 30-percent removal requirements.
    Another commenter disagreed and argued that the advantages of using 
clear, uniform 30-percent standards in the statute and regulations are 
obvious, and that the fact that these advantages and other plausible 
rationales were not stated explicitly in the legislative history is 
insufficient grounds for ignoring the plain and unambiguous statutory 
requirements.
    Some commenters noted that primary treatment generally is intended 
to remove settleable solids and floating materials rather than BOD and 
therefore inclusion of 30 percent BOD removal as part of the definition 
of primary treatment is technically inappropriate. In support, several 
commenters cited the literature of wastewater engineering and stated 
that BOD reductions achieved by primary treatment are the result of 
insoluble (solid form) BOD being removed along with the settleable or 
floatable materials. The commenters pointed out that soluble BOD would 
not be removed by the physical processes of screening, skimming, and 
sedimentation, and that the BOD removal rates achievable by primary 
treatment would therefore vary depending upon the relative amounts of 
soluble and insoluble BOD. Commenters also cited situations where 
pretreatment of discharges by industrial dischargers that removes much 
of the insoluble BOD (e.g., fish processors removing settleable fish 
wastes) results in a high proportion of soluble to insoluble BOD. One 
commenter noted that the key statutory term in section 303(d)(2) of the 
WQA is ``material,'' implying that Congress intended that 30 percent 
removal refers to insoluble BOD, not total BOD. Section 303(d)(2) 
states that ``primary or equivalent treatment means the removal of at 
least * * * 30 percent of the biological oxygen demanding material * * 
*'' (emphasis added). The commenters therefore sought a change to the 
regulations' definition of primary treatment to require 30 percent 
removal of insoluble BOD, with soluble BOD being excluded from the 30 
percent removal requirement.
    Some commenters were concerned that they might have difficulty in 
achieving 30 percent BOD removal by the physical processes of primary 
treatment because their influent BOD levels were very dilute, that is, 
relatively low concentrations of BOD in the raw wastewater would make 
30 percent removal hard to achieve. These commenters pointed to a 
number of factors leading to such dilute wastewater and difficulties in 
achieving removal efficiencies such as (1) cold climates which result 
in freeze/thaw problems including inflow and infiltration from snow 
melt and cracked or broken pipes with attendant dilution of the 
influent by the resulting influx of fresh water; (2) insufficient 
industrial or commercial sources with high concentrations of BOD in the 
wastewater discharges to the municipal sewage system to offset 
otherwise dilute influents with low BOD concentrations; (3) cold 
wastewater temperatures resulting in relatively less efficient 
treatment; and (4) extremely high tides and high precipitation. These 
commenters recommended that EPA not require 30 percent removal during 
periods of extremely dilute and clean inflows.
    After considering these comments, EPA made no changes to the 
definition of primary or equivalent treatment in Sec. 125.58(r). 
However, as discussed below in the section-by-section analysis for 
Sec. 125.60, the Agency is making changes to how compliance with the 30 
percent removal requirement is calculated for BOD. Specifically, EPA is 
allowing the demonstration of compliance with the 30 percent BOD 
removal requirement to be averaged over a longer time period than 
proposed, in some circumstances. This added flexibility should provide 
some of the relief sought by commenters.
    Although EPA recognizes that from a technical or engineering 
perspective, primary treatment is generally thought of as physical 
processes to remove solids, the statutory definition of primary 
treatment adopted by Congress for purposes of section 301(h) is 
unambiguous in requiring 30 percent BOD removal. In addition, EPA 
disagrees with the commenters who stated that the statutory definition 
precludes the use of additional treatment processes such as chemical 
addition to enhance primary treatment's physical processes (e.g., 
chemical addition, coagulation, and precipitation) in order to achieve 
the required 30 percent removal of BOD.
    With regard to the commenters' suggestions that the definition be 
revised to define BOD as insoluble BOD only, EPA recognizes that 
removal of BOD in primary treatment normally is associated with the 
removal of settleable (i.e., insoluble) materials. While the literature 
cited by the commenters indicates that BOD removals for traditional 
primary treatment range from about 20 to 40 percent, the reported range 
is a result of many factors including treatment plant design, 
subsequent additional treatment and influent qualities such as the 
presence of soluble versus non-soluble BOD. Furthermore, Congress set 
the BOD removal standard without incorporating such a distinction. Both 
soluble and insoluble BOD exert the similar effect of depressing 
dissolved oxygen levels in the receiving waters. Limiting the required 
removal to only insoluble BOD ignores this fact and also would be 
inconsistent with the existing approach of the Agency's secondary 
treatment regulations, which do not distinguish between removal of 
soluble and insoluble BOD. EPA disagrees that the use of the term 
``material'' in section 303(d)(2) indicates that Congress intended that 
30 percent removal refer only to insoluble BOD. See, e.g., 40 CFR part 
133.
    The definition in today's regulations comports with the express 
statutory language, and if an applicant does have difficulty meeting 
the 30 percent BOD removal requirement with treatment by screening, 
sedimentation, and skimming, for such reasons as dilute influent, cold 
temperatures, or soluble-to-insoluble BOD ratios, applicants can 
increase BOD removal efficiencies through the application of treatment 
processes which may include physical processes enhanced by chemical 
processes. Accordingly, given the unambiguous statutory language on 
percent removal and the ability to use enhanced treatment processes 
when necessary, EPA believes the definition should not be amended to 
allow for less than 30 percent removal of BOD or to exclude soluble BOD 
from the removal requirements established by Congress. Compliance with 
the 30 percent removal requirement, which may require enhanced or 
additional technologies, is more appropriate than limiting treatment 
strictly to the three technologies listed in the statute and not 
achieving 30 percent in some cases. The term material, EPA believes, 
does not imply insoluble, and, as explained above, such an 
interpretation makes little sense, given that soluble and insoluble BOD 
exert similar effects in the receiving waters.
    Other commenters requested that the definition be changed to 
require that the combined average of both BOD and SS percent removal be 
at least 30 percent. EPA considered this option but did not deem it 
acceptable for two reasons. First, the statute states that primary 
treatment requires the removal of at least 30 percent of the biological 
oxygen demanding material and of the suspended solids. Combining the 
BOD and SS removal requirements into an overall 30 percent average, in 
EPA's view, would not satisfy the statutory language or intent. Second, 
after considering both information submitted by commenters and EPA's 
own assessment of primary treatment removal data from POTWs (See 
Technical Review of the Influent/Effluent Characteristics of POTWs, 
June 1994), EPA concludes that most POTWs are removing greater than 30 
percent of SS, and some are removing greater than 60 percent of SS. 
Adopting the suggested change thus would allow for an actual relaxing 
of both BOD and SS removal even for applicants capable of meeting the 
30 percent removal of BOD and 30 percent removal of SS. There is no 
indication that Congress intended this result. Moreover, properly run 
primary treatment plants should be able to meet 30 percent SS removal 
and no comments or data were received that indicate otherwise. EPA 
believes one objective of the primary treatment provision is to ensure 
the proper design and operation of treatment plants, and this objective 
would not be met under the commenters' suggested interpretation.
    Similar to the above comments, some commenters requested the 
definition be changed to require that the combined average of both BOD 
and SS percent removal be greater than 60 percent. As stated above, EPA 
does not believe that the statutory language and intent are consistent 
with combining BOD and SS removals to meet the 30-percent removal 
requirement. Using a standard of 60 percent would stray even further 
from the plain meaning of the statute. Moreover, if Congress had 
intended to provide a 60 percent removal requirement it could easily 
have so specified in the statute, however, the statute makes no 
reference to a 60 percent removal of BOD and SS. Finally, as with the 
previous comment, this interpretation could allow for even greater 
relaxing of treatment efficiencies for BOD removal (or SS), leading to 
less efficient plant operations than applicants are currently 
achieving.
    Some commenters suggested that the requirement for 30 percent 
removal should reflect a ``credit system,'' under which the removal 
efficiency for BOD would be calculated based on a combination of the 
BOD removal by industrial dischargers' pretreatment, plus the removal 
achieved by treatment processes at the POTW. This approach is 
inconsistent with the plain statutory language and thus cannot be 
adopted. The statute unambiguously specifies that the 30 percent 
removal rate is to be achieved with respect to the applicant's 
influent. Such influent would already have been subject to industrial 
dischargers' pretreatment, and because the statute requires that the 30 
percent removal rate be achieved for the influent to the POTW, credit 
cannot be given for upstream treatment by industrial dischargers.
    In contrast to the above comments seeking a change in the 
definition of primary treatment, other comments supported the 
definition of primary treatment as 30 percent removal of BOD and of SS 
as proposed. These commenters noted that this definition is consistent 
with the plain, unambiguous definition specified by Congress in the WQA 
as discussed above, and these commenters agree with EPA that the 
suggested changes to the definition that EPA has rejected would be 
inappropriate.
Definitions of Saline Estuarine Waters and Ocean Waters
    Under section 303(e) of the WQA, section 301(h) modified discharges 
are prohibited into saline estuarine waters exhibiting certain signs of 
stress (i.e., degradation to water quality) specified in the statute. 
In contrast, this flat prohibition does not apply to ``ocean waters.'' 
As a result, in the proposed rule, EPA amended the term ``ocean 
waters'' in Sec. 125.58(n) to clarify that ocean waters are distinct 
from saline estuarine waters because discharges to saline estuaries are 
now subject to additional regulatory criteria not applicable to 
discharges to oceans.
    Although the existing definition of saline estuarine waters was not 
proposed for amendment, some commenters expressed the view that it is 
too broad and thus might give the prohibition on section 301(h) 
discharges to stressed saline estuarine waters greater scope than 
intended. These commenters sought a definition giving more precise 
boundaries to saline estuarine waters.
    The narrative definition of saline estuarine waters has remained 
unchanged since its original 1979 promulgation in the section 301(h) 
regulations, and the section 301(h) regulations have always placed 
additional restrictions on discharges to saline estuarine waters 
compared to ocean waters. Section 125.61(c)(4) (1982) places additional 
limits on impacts within the zone of initial dilution for saline 
estuarine discharges. EPA's experience with the use of a general 
narrative definition of saline estuarine waters for purposes of making 
regulatory distinctions is that this approach is workable. EPA believes 
that it is not feasible for the purposes of the section 301(h) 
regulations to develop a definition establishing fixed boundaries 
between ocean and estuarine waters, but that all relevant local 
circumstances should be considered and the distinction should be made 
on the basis of the site-specific circumstances.
    The commenters' concern appears to center on the meaning of the 
term ``semi-enclosed waters'' in the definition of saline estuarine 
waters. In this regard it is important to note that under 
Sec. 125.58(v), not all semi-enclosed coastal waters are treated as 
saline estuaries. Under the section 301(h) regulations, while some 
embayments and other indentations along the coastline lie inside the 
baseline from which the territorial sea begins, they are treated for 
purposes of section 301(h) as being ocean waters. See preamble to 1979 
section 301(h) regulations (44 FR 34784, 34795, June 15, 1979). As 
noted in the preamble to the 1979 section 301(h) regulations (44 FR 
34795), it is the presence of fresh water inflows that is the 
distinguishing characteristic of estuaries. EPA notes today that saline 
estuarine waters typically are waters lying inside the baseline in 
which the salinity is diluted by fresh water inflows. In contrast, 
embayments or indentations along the coastline that are not influenced 
by such fresh water inflows are not estuaries. To further clarify that 
ocean waters and saline estuarine waters are distinct and mutually 
exclusive terms for purposes of section 301(h), the final rule, as in 
the proposal, amends the definition of ``ocean waters'' to note that 
this term specifically excludes saline estuarine waters.
    Commenters also inquired about situations where an outfall crosses 
through estuarine waters, but the actual discharge is into offshore 
waters. Because both the statute and the implementing regulations make 
clear that the prohibition applies to discharges of pollutants into 
saline estuarine waters, the statute and implementing regulations 
already adequately address this case.
    Section 125.59: This section describes the general requirements for 
section 301(h) applications, including filing procedures and deadlines, 
procedures for revising applications, and procedures for State 
determinations. EPA proposed to make several changes to this section. 
In the proposed rule, EPA added procedures for permit renewal, 
clarified language regarding State determinations, and added provisions 
for the submission of additional information to demonstrate compliance 
with the urban area pretreatment program and primary or equivalent 
treatment requirements. EPA also proposed to amend the regulations in 
accordance with section 303(g) of the WQA to exclude certain applicants 
from the water quality criteria provisions of Sec. 125.62(a), primary 
or equivalent treatment program requirements (Sec. 125.60) and urban 
area pretreatment program requirements (Sec. 125.65) until permit 
renewal. As provided by the WQA, and explained later on in this 
preamble, these grandfathering provisions in today's final rule apply 
only to those section 301(h) applications that received tentative or 
final section 301(h) modified permit approvals prior to enactment of 
the WQA.
    The new requirements for submitting additional information are 
found in Sec. 125.59(e) and (f). Under those provisions, permittees and 
applicants to whom EPA has issued a final or tentative decision, 
including those that have been grandfathered under WQA section 303(g), 
must submit a letter of intent explaining how the permittee or 
applicant will meet the primary treatment and urban area pretreatment 
requirements. Under Sec. 125.59(f)(3), applicants that are not 
grandfathered have two years from publication of the regulation to 
comply with the primary treatment and urban area pretreatment 
requirements; applicants that are grandfathered have until permit 
renewal or two years from date of publication of these regulations, 
whichever is later. Under Sec. 125.59(e), the letters of intent must 
contain a project plan, including a schedule, to ensure that timely 
implementation of the requirements is accomplished.
    Some commenters expressed the view that two years from the date of 
promulgation of the regulations is not sufficient time to enable 
compliance with the primary treatment and urban area pretreatment 
requirements. One of these commenters expressed concern over the impact 
of such a deadline on a consent decree schedule it has entered into for 
development of a pretreatment program. Further, this commenter was 
concerned that the time would not be sufficient to develop pretreatment 
limits for all 126 toxic priority pollutants. Another commenter 
expressed concern that two years was not sufficient given their short 
construction season and reliance on obtaining funds from a State 
legislature whose timing is not in the commenter's control. Other 
commenters expressed the view that two years is a reasonable timeframe. 
Another commenter expressed the view that two years is an excessive 
timeframe and in fact should not apply to requirements which were 
either (1) in effect prior to the 1987 amendments or (2) clear on the 
face of the 1987 amendments (e.g., 30 percent BOD/suspended solids 
removal standards).
    With regard to requirements in effect prior to the 1987 WQA, the 
two-year time frame is not applicable. The two-year time frame applies 
only to the urban area pretreatment program and primary or equivalent 
treatment requirements, both of which were added by the WQA.
    EPA recognizes that for some applicants, compliance with a two-year 
deadline from the date of promulgation of the regulations may be more 
difficult than for others, for example, those who may have to obtain 
funding to design and build an upgraded facility to meet the primary 
treatment requirements. However, none of the commenters opposing the 
two-year deadline provided persuasive information demonstrating why 
this deadline could not be met. One commenter subject to court-ordered 
deadlines and consent decree time-lines asked how to reconcile these 
deadlines with the consent decree time-lines. That commenter also noted 
that there are a number of different activities that need to be 
performed to establish a local limit, such as gathering data, 
developing computer models, and obtaining government approvals. That 
commenter, however, provided no information supporting why these 
activities cannot be accomplished within the time established in the 
regulation. EPA notes that several of these activities can be performed 
simultaneously. In response, the commenter will have to comply with the 
deadlines included in the consent decree. This comment is moot because 
of the time that has elapsed between the proposed rule and today. The 
deadlines in the rule should not affect the dates in consent decree. In 
addition, the commenter has been on notice for several years. EPA 
continues to believe that the two-year time frame for compliance 
provides sufficient time to achieve compliance. It should also be noted 
that the requirement to develop local pretreatment limits does not 
necessarily apply to all 126 priority pollutants, but only those that 
are known or suspected to be introduced to the plant by industry, as 
discussed later in this preamble. The Agency notes that the statutory 
provisions giving rise to these requirements were enacted in 1987, and 
that the proposed regulations and draft technical support document were 
issued in 1991. In addition, the Agency has had other final guidance on 
the development of pretreatment programs in place for several years. 
Even in cases where commenters claim they have large numbers of 
dischargers and large numbers of pollutants will need to be addressed, 
EPA continues to believe that sufficient time and notice has been given 
to achieve compliance. EPA agrees with the commenter who noted that 
applicants have been on notice of the need to comply with the primary 
treatment and urban area pretreatment requirements for quite some time, 
and could have already initiated work on the planning and development 
of measures to achieve compliance. The Agency also recognizes that in 
the absence of final regulations on these issues, applicants should not 
be expected to have completely developed and implemented final plans. 
Given this situation, and in the absence of supporting information to 
show that the two-year time frame of the proposal is inappropriate, the 
Agency is retaining the proposal's two-year time frame from the date of 
publication of the final regulations in the Federal Register to achieve 
compliance. This date, August 9, 1996, is inserted in the regulatory 
text of this rule.
    One commenter asked for additional time to comply with the urban 
area pretreatment and primary treatment equivalency requirements for a 
plant that has not yet been constructed. In response, these applicants 
will have to demonstrate compliance with these requirements based on a 
predictive analysis of their flows. The applicant must base their 
prediction on potential industrial sources and pollutants, and, to the 
best of their ability, support such predictions within the two-year 
time frame.
    In proposed Sec. 125.59(h), EPA added language to clarify that the 
Agency may tentatively approve a section 301(h) permit modification 
where an applicant has demonstrated a good faith effort to come into 
compliance with all requirements of the section 301(h) regulations, 
based upon a schedule approved by the Agency for meeting any 
outstanding section 301(h) requirements. This provision is consistent 
with the existing regulations and practice and was proposed for 
addition only as a clarifying change. In addition, the proposal made no 
changes to the existing requirement that in order to receive a final 
section 301(h) modification, applicants must demonstrate actual 
compliance with all of the part 125, subpart G, requirements before EPA 
will issue a final section 301(h) modified permit. See 40 CFR 
Sec. 125.59(g)(1) (1982).
    One commenter supported the approach taken by EPA on tentatively 
approving an application based on a schedule with respect to 
outstanding requirements if an applicant has demonstrated a good faith 
effort to come into compliance. However, the commenter is concerned 
that Sec. 125.59(h) creates an ambiguity regarding the permissible 
scope of the schedules for meeting 301(h) requirements. Section 
Sec. 125.59(h) allows EPA to tentatively approve an application if the 
applicant is making a good faith effort to comply with ``all 
requirements of this subpart.'' (emphasis added) The section continues 
on, however, to require that the schedule for meeting these 
requirements must be ``approved by the Administrator in accordance with 
Sec. 125.59(f)(3)(ii), which refers only to schedules of compliance 
with Sec. 125.60 (primary or equivalent treatment) and Sec. 125.65 
(urban area pretreatment).
    EPA agrees with the commenter and is clarifying Sec. 125.59(h) to 
allow schedules for satisfying the 301(h) requirements for all 
requirements. It was not the Agency's intent to limit compliance 
schedules to the requirements of Secs. 125.60 and 125.65. The Agency's 
intent was that the limitations of Sec. 125.59(f)(3)(ii) apply only to 
compliance schedules for meeting the Secs. 125.60 and 125.65 
requirements. Therefore, we are adding a phrase to 
Sec. 125.59(f)(3)(ii) that reflects the Agency's intent.
    Some commenters expressed the view that EPA should not grant 
tentative approvals before all the section 301(h) requirements are met. 
Additionally, one of these commenters felt that if a tentative approval 
is granted prior to such compliance, the applicant may be encouraged to 
relax its effort to comply.
    Based on its past experience with this approach, EPA believes that 
the provisions of the proposed regulation are appropriate and contain 
adequate safeguards to prevent abuse. The regulatory provision 
specifically requires that applicants must be making a good faith 
effort to achieve compliance and requires that EPA establish a schedule 
for achieving compliance. In addition, this approach provides an 
opportunity for EPA, through the tentative decision document, to put 
the public and applicants on notice of specific deficiencies and the 
steps and time frame required to correct such deficiencies. Rather than 
creating a disincentive to timely compliance, the regulatory provision 
requires that a schedule for compliance be established. In addition, 
EPA believes that by advising applicants that they may receive a final 
section 301(h) waiver if the identified deficiencies are corrected as 
required, the provision provides an added incentive for applicants to 
achieve timely compliance. Finally, by addressing such deficiencies 
through the tentative approval, the more lengthy process of tentative 
denial followed by application revision is avoided. For these reasons, 
EPA believes that the regulatory provision is reasonable and is 
promulgating that provision today as proposed with the clarification 
noted above.
    One commenter recommended that the EPA regional office issue a 
letter to the applicant stating that its permit has been 
administratively extended in accordance with Sec. 122.6. In response, 
EPA notes that this is a procedural issue governed by the NPDES 
regulations. It is not a subject of this rulemaking.
    EPA notes in reviewing this section that Sec. 125.59(d)(5) might be 
misinterpreted to mean there is no opportunity to present new 
information on applications for permit renewal. Paragraph (d)(5) is 
referring to the one-time revisions allowed in Sec. 125.59(d)(1) and 
(d)(2). Applicants who are authorized or requested to submit additional 
information under Sec. 125.59(g) may still do so.
    Section 125.60: The proposal added Sec. 125.60 to the regulations 
to implement the primary or equivalent treatment provision in section 
303(d) of the WQA. Issues related to the definition of primary 
treatment have been previously dealt with in the discussion of 
Sec. 125.58.
    Proposed Sec. 125.60 required an applicant's discharge, at the time 
the waiver becomes effective, to have received at least primary or 
equivalent treatment. Additionally, under the proposal, applicants were 
to comply with this treatment requirement based on the monthly average 
results of the monitoring for SS and BOD.
    A number of commenters recommended that EPA consider lengthening 
the period of time over which monitoring data are averaged to determine 
compliance with the 30 percent BOD removal requirement. These 
commenters presented information on the difficulties with achieving the 
30 percent removal because of such factors as dilute wastewaters, cold 
climates that impact treatment design parameters (e.g., settling 
rates), and proportionately low amounts of insoluble BOD. One of the 
options identified by these commenters was to change from monthly 
averaging of monitoring data to annual averaging (or some period in 
between). Commenters pointed out that this was a reasonable approach 
which was necessary to account for variations in influent quality or 
other factors affecting removal rates that might occur over a year's 
time. Other commenters supported meeting the primary treatment removal 
requirements on a monthly average basis.
    The Agency believes that the proposed period for averaging 
monitoring results (i.e., monthly) to determine compliance with the 30 
percent BOD removal requirement will be appropriate for most 
applicants. However, as noted in the discussion for the primary 
treatment definition in Sec. 125.58, the Agency also recognizes that 
the 30 percent removal rate for BOD may be difficult to achieve on a 
monthly average basis in certain cases, e.g., dilute wastewater or 
proportionately low concentrations of insoluble BOD. Because of this, 
the final rule has been modified to provide flexibility in certain 
instances by allowing compliance monitoring to be averaged for a period 
longer than monthly, up to annually.
    EPA anticipates that compliance monitoring requirements established 
for longer than monthly average periods will be the exception, not the 
general practice. An applicant who has demonstrated a consistent 
ability to achieve 30 percent removal of BOD on a monthly average basis 
over one year prior to the publication date of these regulations will 
not be eligible for the longer than monthly averaging period. The 
longer period will be available only to those applicants who have some 
historical data on BOD removal, and not for newly constructed 
facilities. Eligibility for the longer period is limited to those who, 
based on circumstances listed below, and subject to the qualifications 
listed below, truly cannot achieve 30 percent removal on a monthly 
average.
    It is the Regional Administrator's decision whether to allow the 
longer averaging period. The Regional Administrator will judge each 
eligible case on its individual circumstances, taking into account 
climatic, seasonal, or other factors beyond the applicant's control 
which cause significant fluctuations in influent characteristics that 
could impact BOD removal efficiencies. Appropriate circumstances may 
include:
     Seasonally dilute influent BOD concentrations due to 
relatively high (although nonexcessive) inflow and infiltration;
     Relatively high soluble to insoluble BOD ratios on a 
fluctuating basis; or
     Cold climates resulting in cold influent.
    The longer period must be requested by the applicant, and the 
burden of justifying a longer averaging period will be on the 
applicant. In addition to justifying the application on conditions 
listed above, to qualify for the longer averaging period the applicant 
will have to demonstrate to the satisfaction of the Regional 
Administrator that the treatment facility is properly designed and 
operated; that the applicant will be able to meet all section 301(h) 
requirements with the longer averaging basis; and because of 
circumstances beyond the applicant's control (examples listed above), 
the applicant cannot achieve the 30 percent removal requirement for BOD 
on a monthly averaging basis. The final rule also requires that inflow 
and infiltration (I/I) is nonexcessive in order to ensure that 
applicants have corrected, as feasible, deficiencies in their 
collection system that result in extremely dilute wastewater. The 
definition of excessive I/I in 40 CFR 35.2005(b)(16) will be used to 
determine whether the I/I is excessive, plus the additional criterion 
that inflow is nonexcessive if the total flow to the primary treatment 
plant is less than 275 gallons per capita per day, consistent with 40 
CFR 133.103(d) of the secondary treatment regulations.
    It should be noted that permit writers can still incorporate 
interim limits into the permit. When compliance determinations with 
interim limits indicate that the ability to achieve 30 percent removal 
of BOD for the designated period is compromised, action to determine 
and, if possible, fix the problem should be taken. Monitoring 
frequencies for BOD should remain the same as they would be if the 
compliance determination for BOD removal was on a monthly average 
basis. For enforcement purposes, there is the potential that allowing 
longer averaging periods may prove more costly to the POTW in 
violation. POTWs should note that if a longer period is granted, they 
should be aware of the risk that a violation of an annual average limit 
may result in 365 days of violation.
    Other commenters requested that EPA set a baseline level of BOD in 
the treatment works influent above which 30 percent removal would be 
required, with 30 percent removal not required for influent cleaner 
than that threshold level. This option relies on a level of BOD in the 
influent that hypothetically represents a typical BOD influent 
concentration. The statute specifies 30 percent removal and does not 
tie this requirement to some specific concentration in the influent. 
The Agency believes that making the statutory 30 percent removal 
requirement dependent on a hypothetical influent baseline concentration 
would not meet the statute's intent.
    One commenter stated that the approach to section 301(h) waivers 
should be based on water quality effects and not on any 
``equivalencies,'' e.g., primary treatment and secondary removal 
equivalency. In response to this general comment, EPA reiterates that 
it is promulgating these regulations to implement the new provisions of 
the WQA which mandate primary or equivalent treatment. Today's 
regulatory scheme is fully consistent with the new WQA amendments.
    Some commenters raised concerns about the financial impact on some 
individual dischargers if additional capital improvements are needed to 
meet the 30 percent BOD removal requirement. They see the costs of 
meeting the new primary treatment requirements as having a 
disproportionate impact on small communities. For example, one 
commenter stated that this requirement would result in a 20 percent 
rate increase; that polymers alone would cost $100,000. Others 
commented that cost should not be a factor in justifying a lower 
removal efficiency and that EPA should not guarantee a cap on sewage 
treatment costs.
    As part of this rulemaking EPA has prepared an economic analysis of 
the impacts of the regulations. Although some communities may need to 
make improvements to their plants to meet the primary treatment 
requirements, the statute does not authorize any waiver of those 
requirements on the basis of financial hardship. In addition, EPA 
believes that as shown in the economic analysis, the final regulations' 
requirements do not unduly impact small communities in terms of overall 
cost of compliance. Specifically, none of the small communities, 
including the community that indicated in its comments a 20 percent 
increase in rates, will end up spending more than 1 percent of median 
household income on wastewater treatment. Municipal financial impact 
models used by EPA assume that ratios of wastewater treatment costs to 
median household income of less than 1 are not expected to create 
economic hardship for households. Moreover, although current treatment 
costs may increase, small communities will still realize an overall 
cost savings if less-than-secondary treatment is approved through the 
section 301(h) process. Finally, as discussed above, the Agency in 
today's rule has provided the opportunity for adjusting the averaging 
period for calculating compliance with the primary treatment 
requirement for BOD under certain circumstances. This added flexibility 
should further serve to reduce any potential adverse financial impacts. 
The new flexibility may allow POTWs with dilute influent, provided it 
is not excessive I&I to qualify with less cost to achieve compliance. 
The cost of improving collection systems to fix excessive I&I would 
impact small communities, but is not a cost of this rule. In response 
to a comment that the need for this flexibility results from future 
increases in treatment capacity due to population growth, EPA agrees 
that this is not an appropriate reason, and has not based its decision 
to allow flexibility on costs of additional treatment due to future 
growth. There are other more appropriate and legitimate reasons, as 
spelled out earlier in this preamble, for some measure of flexibility.
    Section 125.61: No changes to this section were proposed or are 
promulgated today. This section addresses the existence of, and 
compliance with, water quality standards for the pollutant for which 
the modification is requested. No comments were received.
    Section 125.62: This section contains requirements for the 
attainment or maintenance of water quality which assures protection of 
public water supplies, the protection and propagation of a balanced, 
indigenous population of shellfish, fish, and wildlife, and allows 
recreational activities. In response to the requirement of WQA section 
303(d) for discharges to meet CWA section 304(a)(1) water quality 
criteria, EPA proposed language at Sec. 125.62(a)(1)(i)-(iii) and 
125.62(a)(2) and (3) to implement that additional requirement. The 
proposal also amended Sec. 125.62(f) to implement requirements of WQA 
section 303(a) regarding combined impacts of section 301(h) discharges 
and made a conforming change in light of the WQA prohibition on section 
301(h) discharges to stressed estuaries to clarify that the 
regulations' stressed waters test applies only to ocean waters. 
Comments on this section addressed issues related to water quality 
criteria, including human health carcinogenic risk levels, mixing 
zones, combined impacts, and stressed waters.
Water Quality Criteria
    Under the proposal to implement the WQA requirement that discharges 
meet EPA section 304(a)(1) water quality criteria, EPA would first 
determine whether there is an EPA-approved State water quality standard 
that directly corresponds to the EPA section 304(a)(1) water quality 
criterion for the specific pollutant. If there is, EPA would apply this 
directly corresponding State standard. In the absence of such a State 
standard, the section 304(a)(1) water quality criterion would be 
applied instead. Under the proposal, an EPA-approved State water 
quality standard would be deemed to ``directly correspond'' if (a) the 
State water quality standard addresses the same pollutant as EPA's 
water quality criterion; and (b) the State water quality standard 
specifies a numeric criterion for that pollutant, or an objective 
methodology for deriving such a pollutant-specific criterion. The 
preamble to the proposed rule discusses this subject in more detail (56 
FR 2818-2819).
    A commenter felt that the regulations should require compliance 
with the CWA section 304(a)(1) criteria at a minimum, and that 
compliance with a directly corresponding State standard that may be 
less stringent instead was unacceptable. The commenter argued that 
Congress was aware of State water quality standards, and had Congress 
intended that an applicant's discharge meet State water quality 
standards, then Congress would have provided language so mandating. The 
commenter also asserted that 301(h) waiver requirements should be 
strictly construed in favor of water quality because 301(h) waivers 
represent an exception to the general requirement to meet secondary 
treatment. Other commenters supported the proposal to defer to EPA-
approved State water quality standards. The commenters believed that 
this approach appropriately recognizes the State's discretion to set 
its own standards.
    EPA continues to believe that compliance with the EPA-approved, 
directly corresponding State water quality standard in lieu of the EPA 
section 304(a)(1) water quality criterion is appropriate. EPA water 
quality criteria are national criteria, primarily issued to serve as 
guidance for the States to use in establishing their water quality 
standards under CWA section 303.
    Under the CWA, States may develop water quality standards based on 
the section 304(a)(1) criteria, as modified to reflect site-specific 
conditions, or they may use other scientifically defensible methods for 
developing water quality standards. State standards are subject to EPA 
review and approval. They are developed by the States to protect the 
types of biota in, and beneficial uses of, their local waters, and thus 
represent scientifically appropriate standards for each State's 
specific situation. EPA does not believe that, in amending section 
301(h), Congress intended to interfere with this statutory scheme, nor 
require compliance with the national guidance contained in the section 
304(a)(1) criteria when the CWA section 303 standard-setting process 
results in adoption of different standards to reflect local conditions 
and those standards have been subject to EPA review and approval. 
Rather, EPA believes that the intent of this provision was to ensure 
compliance with the national section 304(a)(1) criteria in those cases 
where the States have not adopted a directly corresponding State 
standard and EPA has not itself promulgated a standard in light of such 
State inaction. Today's final rule therefore retains the proposal's 
approach. In the absence of an EPA-approved State water quality 
standard that directly corresponds to the section 304(a)(1) water 
quality criteria, the final rule requires compliance with the section 
304(a)(1) water quality criteria.
    For carcinogens, the EPA section 304(a)(1) criteria provide a range 
of risk levels and corresponding criterion for each specific risk 
level. In the proposal, EPA did not establish a specific risk level for 
use in the section 301(h) program. As explained in the preamble (56 FR 
2819, 2820), EPA instead would consider all relevant information in 
determining the pollutant concentration that represents an appropriate 
risk level for a specific carcinogen. This information would include 
evidence that the State has consistently used a particular risk level 
when establishing its water quality standards for other carcinogens. In 
the absence of such a consistent State policy, EPA would consider a 
State recommendation of a particular risk level if the State 
demonstrates to the satisfaction of EPA that the particular risk level 
is justified. The State demonstration would need to account for the 
relevant exposure and uncertainty factors, show adequate public 
participation in the selection of the risk level, and show that use of 
the selected risk level is adequately protective of human health. In 
cases where there is no consistent State policy or satisfactory State 
demonstration on which to base a risk level, under the proposal, EPA 
would set a specific risk level (for example, 10-6) based on the 
circumstances of each case. See preamble to the proposed rule, 56 FR 
2818-2820, for a detailed explanation of a satisfactory State 
demonstration of a recommended risk level and EPA's approach to setting 
risk levels.
    EPA received a number of comments addressing the issue of whether 
to set a specific risk level by regulation as opposed to allowing it to 
be set on a case-by-case basis. A commenter stated that rather than 
assuming that a zero discharge level is unattainable for any known 
carcinogen, EPA should require the discharger to prove that, in fact, 
zero discharge in a particular situation either would create severe 
economic hardship or is not technologically feasible. These commenters 
also stated that under no circumstances involving carcinogenic 
pollutants should the allowable discharge exceed a 10-6 risk level 
or the applicable State standard, whichever is more stringent. Other 
public comments received on the issue of water quality criteria for 
carcinogens also said the regulations should specify a human health 
risk level that is no less protective than the 10-6 incremental 
cancer risk and asserted that EPA had done so in other national 
programs. One commenter stated that there should not be a flexible, 
case-by-case approach toward establishing risk levels for carcinogens. 
Instead, the commenter suggested that EPA establish a minimum risk 
level, the least protective risk level that is acceptable, (and 
corresponding maximum permissible discharge concentration) but allow 
for flexibility to choose a more stringent risk level based upon a 
given State's past practice.
    With regard to the zero-risk level, as mentioned in the preamble to 
the proposed rule, EPA believes that a zero effluent concentration is 
essentially unattainable. Therefore, EPA has approved numeric State 
water quality standards for carcinogens under CWA section 303 that 
correspond to risk levels above zero. The approach adopted in the 
proposed rule provides consideration of the State's views on an 
appropriate risk level, or in the absence of such State input, provides 
for EPA to consider all relevant information in setting a risk level. 
EPA believes that establishing a presumption in favor of a zero risk 
level would be inappropriate because even apart from questions of 
achievability, compliance could not be demonstrated due to limitations 
in analytical methods. Further, the commenter provided no basis to 
refute EPA's belief that zero risk levels are not achievable. EPA thus 
is not amending the regulations to establish a presumptive zero risk 
level.
    With regard to whether the section 301(h) regulations should 
establish a single uniform risk level for use in the section 301(h) 
program, the establishment of risk levels is a national issue which is 
not limited to the section 301(h) program. As noted in the preamble to 
the proposed rule (56 FR 2819), EPA expected that many or most coastal 
States already had established or soon would establish one or more EPA-
approved water quality standards for toxic carcinogenic pollutants, 
pursuant to section 303(c)(2)(B) of the CWA.
    Subsequent to the proposal of these revised section 301(h) 
regulations, EPA applied risk levels in the National Toxics Rule, which 
sets water quality standards for priority pollutants in States that did 
not have approved standards, pursuant to Sections 303(c)(2)(B) and 
303(c)(4) of the CWA (57 FR 60848, December 22, 1992). More 
specifically, the National Toxics Rule establishes water quality 
standards pollutant-by-pollutant for fourteen States that did not have 
an EPA-approved standard for the toxic pollutant in question where 
section 304(a)(1) water quality criteria have been developed. EPA set 
legally enforceable water quality standards with incremental cancer 
risk levels for carcinogens and corresponding numeric values based on 
specific exposure and other modeling assumptions. It should be noted 
that EPA did not adopt a uniform nationwide 10-6 risk level in 
other contexts, e.g., the National Toxics Rule, as suggested by a 
commenter, who advocated that as a minimum level of protection.
    In each State covered by the National Toxics Rule, the carcinogenic 
risk level used to set the State's standard(s) was based on the best 
information available to the Agency regarding that State's policy or 
practice for risk levels used or that should be used in regulating 
carcinogens in surface waters. For most of the affected States, the 
risk level is based on a State-adopted or formally proposed risk level. 
For some, the risk level is based on an expressed State policy 
preference. With the National Toxics Rule, all States are now in 
compliance with section 303(c)(2)(B). Hence, for purposes of 
implementing Sec. 125.62, EPA will now look to the guidance contained 
in the preamble and regulations of the National Toxics Rule to 
establish the appropriate human health risk level and numeric value in 
the absence of a directly corresponding State standard for any section 
304(a)(1) criterion later established.
    EPA believes that the carcinogenic risk provisions of proposed 
Sec. 125.62(a)(2)(ii) are consistent with the National Toxics Rule, 40 
CFR Sec. 131.36, and the guidance provided in the preamble to the rule 
(57 FR 60848). Accordingly, today's rule at Sec. 125.62(a)(ii) is 
promulgated as proposed, with a minor editorial change. In the absence 
of an EPA-approved State water quality standard for a carcinogenic 
pollutant, the Administrator will consider a consistently used, or 
State-adopted or formally proposed risk level recommendation with a 
satisfactory demonstration that the level is adequately protective of 
human health in light of exposure and uncertainty factors and 
population exposed. Exposure factors would include, for example, local 
patterns of fish consumption, cumulative effects of multiple 
contaminants and local population sensitivities. Factors related to 
uncertainty would include, for example, the weight of scientific 
evidence concerning exposures and health effects and the reliability of 
exposure data.
    One commenter noted that determinations of compliance with water 
quality criteria will be dependent on the frequency and types of 
sampling methods used and the effects industrial users' pretreatment 
programs have on effluent quality. The commenter urged a flexible 
approach in determining compliance because of these variables. EPA 
notes, in response, that the regulations do not specify rigid sampling 
requirements and frequencies, and thus already allow for consideration 
in designing sampling programs to adequately characterize effluent 
quality for purposes of evaluating compliance with water quality 
criteria.
    New section 301(h)(9) of the CWA requires that the discharge meet 
the section 304(a)(1) water quality criteria ``after initial mixing in 
the waters surrounding or adjacent to the point at which [the] effluent 
is discharged.'' The zone of initial dilution (ZID) is defined in 
existing Sec. 125.58(w) as ``the region of initial mixing surrounding 
or adjacent to the end of the outfall pipe or diffuser ports, provided 
that the ZID may not be larger than allowed by mixing zone restrictions 
in applicable water quality standards.'' The existing 1982 regulations 
required that all applicable State water quality standards adopted 
under section 303 of the CWA be met at and beyond the boundary of the 
ZID.
    New language was proposed in Sec. 125.62(a)(1)(i) to implement the 
requirement of new section 301(h)(9) to comply with the section 
304(a)(1) water quality criteria or the directly corresponding State 
water quality standards, but inadvertently omitted those State water 
quality standards that do not directly correspond to the section 
304(a)(1) water quality criteria. In so doing, EPA inadvertently 
omitted the existing requirement that all applicable State water 
quality standards, including those that do not directly correspond, 
must still be met at and beyond the ZID. This requirement has been 
retained in the final regulation. For purposes of this discussion, 
there are three categories of water quality requirements: State water 
quality standards that directly correspond to water quality criteria, 
State water quality standards that do not directly correspond to water 
quality criteria, and water quality criteria. It is the second 
category, those State water quality standards that do not directly 
correspond to water quality criteria, that was inadvertently left out 
of the proposed regulation.
    Two commenters questioned whether the proposed rule, by referring 
to the ZID for purposes of calculating compliance with section 303 
State water quality standards, raised a potential conflict with State-
specified mixing zones adopted as part of the section 303 standard-
setting process. One of these commenters requested that the regulations 
be clarified to specify that compliance with State water quality 
standards is to be determined under the methods and conditions 
specified by the State in its standards.
    EPA agrees that the proposed language could create confusion. 
Today's final rule includes the existing requirement of the 1982 
regulations that all applicable State water quality standards adopted 
under section 303 of the CWA be met at and beyond the boundary of the 
ZID and promulgates as proposed the new section 301(h)(9) requirement. 
The effect of today's rule is to retain the existing practice of the 
section 301(h) program in determining compliance with State water 
quality standards. As stated in the preamble to the proposed rule, 
EPA's purpose in promulgating these revisions to the regulations on 
this issue was to implement the new requirements of the WQA. EPA did 
not intend to change existing regulatory requirements not affected by 
the WQA. As promulgated today, Sec. 125.62(a)(1) reflects the existing 
regulations with the additional requirements of section 301(h)(9) of 
the CWA, and EPA intends no changes to how determinations of compliance 
with State water quality standards are made.
    One commenter pointed to inconsistencies between language in the 
technical support document (TSD) on ZID size and the actual definition 
of the ZID as contained in Sec. 125.58(dd) of the regulations and 
requested that this be addressed by amending the ZID definition. The 
ZID definition was not proposed for amendment in the 1991 proposal and 
is not being changed today. EPA responded to the comment by adding a 
clarification to the final TSD on the technical issues regarding 
calculation of the ZID size.
Combined Impacts of Discharge
    Section 303(a) of the WQA requires an applicant to demonstrate that 
the section 301(h) modified discharge will not interfere, alone or in 
combination with pollutants from other sources, with the attainment or 
maintenance of water quality to protect the uses specified in section 
301(h)(2). As noted in the preamble to the proposed rule (56 FR 2816), 
although EPA believes this requirement is consistent with the existing 
1982 regulations, EPA added language in proposed Sec. 125.62(f) to 
clarify this point. Proposed Sec. 125.62(f) requires an applicant to 
demonstrate that its modified discharge meets Sec. 125.62 (a) through 
(e), both alone, and taking into account the discharge in combination 
with pollutants from other sources.
    One commenter noted that cumulative impact assessments would need 
to be performed to demonstrate that the POTW is not causing impact 
alone or in combination with other dischargers and that the information 
needed to make the assessment may not be available. The commenter 
recommends that EPA provide sufficient guidance on performing the 
needed cumulative impact assessments, including information on regional 
waste load allocations, nonpoint source information, beneficial use 
quantification, and regional water quality monitoring data. EPA agrees 
that such information would be useful in making the required 
demonstration of compliance. The availability of such site-specific 
information will vary depending on local circumstances. Applicants 
should work closely with their EPA Region and State water agencies to 
identify possible sources of such information. EPA considered this 
comment and made changes to the final TSD for the regulations in order 
to provide additional guidance on this issue.
Stressed Waters
    EPA received comments on two related aspects of the statutory 
requirements and regulatory provisions regarding stressed waters: (1) 
Demonstrating that no causal relationship exists between stressed 
conditions and the applicant's discharge, and (2) prohibitions on 
301(h) modified discharges to stressed saline estuaries. One commenter 
on Sec. 125.62(f) (1) through (3) (the ``stressed waters test'') 
requested that EPA state that an applicant can still make the 
demonstration required by Sec. 125.62(f) (1) through (3) by showing 
that no causal relationship exists between the stressed conditions and 
the applicant's discharge. Other commenters supported the continued 
requirement to demonstrate that no causal relationship exists between 
the stressed conditions and the proposed section 301(h) modified 
discharge. As previously noted, paragraphs (f) (1) through (3) are the 
same as provisions contained in the existing 1982 section 301(h) 
regulations, and applicants must demonstrate an absence of a causal 
relationship between their discharge and stressed conditions as 
specified in those paragraphs. The three substantive requirements for 
such a demonstration were not proposed for change. As in the past, 
applicants invoking this provision may avoid the need to demonstrate 
compliance with paragraphs (a) through (e) by demonstrating that the 
modified discharge does not:
    (1) Contribute to, increase or perpetuate stressed conditions;
    (2) Contribute to further degradation; and
    (3) Retard recovery if perturbations from other sources decrease.
    To reiterate, despite the addition of the word ``entirely,'' an 
applicant still can make the demonstration required by Sec. 125.62(f) 
(1) through (3) by showing that no causal relationship exists between 
the stressed conditions and its proposed discharge.
    Prior to the 1987 WQA, section 301(h) and the 1982 implementing 
regulations allowed section 301(h) modified discharges to stressed 
waters only under certain limited conditions, with no distinction made 
between stressed saline estuaries and stressed ocean waters. The 1987 
WQA amendments tighten this restriction with respect to saline 
estuaries by prohibiting section 301(h) modified discharges altogether 
to saline estuaries that are stressed (i.e., that exhibit certain 
characteristics specified in the statute). The amendments also specify 
that this prohibition applies without regard to whether it is the 
applicant's discharge that is causing or would cause the stressed water 
quality conditions. To implement this new statutory prohibition, EPA 
proposed a change to the existing regulations regarding stressed 
waters. EPA proposed adding this new prohibition to Sec. 125.59(b)(4), 
and making conforming changes to Sec. 125.62(f) to prohibit section 
301(h) waivers where stressed saline estuaries are involved. Section 
125.62(f) is the provision that allows discharges to stressed waters 
under certain conditions. The proposal altered this provision so that 
such discharges would be allowed only with respect to stressed ocean 
waters and not saline estuarine waters.
    Commenters expressed the view that Congress did not intend to make 
section 301(h) waivers available for any severely degraded waters, 
whether in estuaries or oceans, and recommended limiting the reach of 
the stressed waters exception to those locations where severe 
environmental degradation has not occurred. The commenters noted that 
if an exception must be available to POTWs discharging to stressed 
waters, the commenters supported the approach taken in proposed 
Sec. 125.62(f). In response to this comment, EPA notes that the 1987 
WQA flatly prohibits section 301(h) modifications with respect to 
stressed estuaries only. In contrast, applicants can satisfy 301(h)(2) 
by showing that their discharges will not ``interfere, alone or in 
combination,'' with certain water quality objectives. EPA continues to 
believe that Sec. 125.62(f) fully meets this statutory directive. There 
is no basis for the suggestion that Congress intended categorically to 
prohibit waivers with respect to all stressed waters. Indeed, the 
legislative history cited by the commenter does not lead to a contrary 
opinion. EPA believes that the provisions adopted in today's final 
regulations to implement the WQA prohibition on discharges to stressed 
estuaries are fully consistent with the statute and that extending this 
prohibition to ocean waters would be inconsistent with the plain 
statutory language. Accordingly, the stressed waters provision in this 
section is promulgated as proposed.
    Section 125.63: This section outlines the general requirements for 
monitoring programs required under section 301(h)(3) of the CWA. In the 
proposal, EPA added language to this section to respond to section 
303(b) of the WQA, which restricts the required scope of section 301(h) 
biological monitoring programs to those scientific investigations 
necessary to study the effects of the proposed discharge. EPA also 
noted in the preamble to the proposed rule that the requirements of 
such monitoring programs under the existing regulations are in fact 
already focused on the effects of the discharge. The proposal also 
added a requirement that applicants monitor their discharges to ensure 
compliance with water quality criteria (if applicable under 
Sec. 125.62(a)), in addition to water quality standards based on the 
provision of section 301(h)(9).
    EPA received one comment regarding monitoring. The commenter 
requested that EPA add a provision for amending monitoring programs in 
existing permits, including permits administratively extended beyond 
their expiration dates, when the changes are technically justified. EPA 
appreciates that changes to section 301(h) monitoring programs during 
the life of the permit may be appropriate. EPA notes that this is a 
procedural issue governed by the NPDES regulations and is not the 
subject of this rulemaking. See 40 CFR 122.6.
Monitoring for Removal Efficiency Requirements
    Some commenters suggested that the demonstration of removal 
efficiency (defined as removal of 30 percent of BOD and TSS) should be 
made throughout the year, and not simply at the time the modification 
becomes effective. Other comments suggested that EPA require a 
demonstration of removal efficiency of BOD as an initial threshold 
determination only, that is, a one-time demonstration. In response, EPA 
believes that demonstration of the removal efficiency should be an 
ongoing requirement, and Sec. 125.60(b) requires that compliance be 
demonstrated based on monthly averaging, as proposed (subject to the 
exceptions discussed above). In addition, the statute does not state a 
one-time requirement but instead envisions an ongoing requirement that 
the applicant ``will be'' discharging effluent that has received 
primary treatment. Given the statutory requirement for primary 
treatment, it would make little sense to require a one-time 
demonstration of removal efficiency, with the possible result that 
less-than-primary treatment could occur during the course of the 
section 301(h) modified permit and go undetected.
    To ensure that data are available for purposes of section 301(h) 
permit renewals, ongoing monitoring of compliance with the removal 
efficiency requirement is necessary. EPA thus continues to believe that 
section 301(h) permittees should monitor for compliance with the 
primary treatment requirement over the life of the permit at the 
frequency required in Sec. 125.60 (i.e., monthly, unless a less 
frequent monitoring period is specified). Although already required in 
Sec. 125.60(b), to clarify this point the final rule adds a new 
paragraph, Sec. 125.63(d)(2), to ensure that the permit monitoring 
requirements provide adequate data for demonstrating compliance with 
the removal efficiency requirement over the life of the permit.
    EPA is also making a conforming change to Sec. 125.63(a)(1)(i) to 
clarify that monitoring programs must be designed to evaluate water 
quality criteria, as well as water quality standards. This conforms to 
the proposed change in Sec. 125.63(c), reflecting WQA language.
Changes to Monitoring Requirements
    Some commenters requested that EPA identify the practical impact 
the new limitation on the scope of monitoring will have on current 
monitoring programs. As previously discussed, EPA does not believe that 
WQA language limiting section 301(h) biological monitoring to 
investigations necessary to evaluate the discharge effects represents a 
substantial change in the program. The purpose of the required 
monitoring programs has always been to evaluate discharge effects. 
Since the monitoring program was already focused on evaluating 
discharge effects, the new statutory and regulatory language should not 
result in substantial changes to existing monitoring programs.
    Other commenters expressed concern over potentially increased 
monitoring costs. The additional monitoring requirements to ensure 
compliance with the WQA's water quality criteria and primary or 
equivalent treatment requirements are a necessary and reasonable 
outgrowth of those new statutory requirements. Given those substantive 
requirements and the need for data to evaluate continued compliance and 
to support future requests for permit renewal, EPA believes it is 
necessary to require monitoring in these areas. As with other section 
301(h) monitoring requirements, the exact nature and frequency of such 
monitoring by a particular applicant would be set on a permit-by-permit 
basis in order to reflect individual circumstances. Burdens associated 
with these monitoring requirements were addressed in the supporting 
documentation for the information collection request accompanying the 
regulations. Although some extra costs may be incurred, many of these 
are one-time costs, and are not excessive, especially in light of the 
economic benefits to the discharger receiving a section 301(h) waiver.
    Section 125.64: This section contains criteria related to the 
impacts of the modified discharge on other point and nonpoint sources 
and implements section 301(h)(4) of the CWA. There were no proposed 
changes to this section and no comments were received. This section 
remains unchanged.
    Section 125.65: This new section sets forth the urban area 
pretreatment program requirements of section 303(c) of the WQA (CWA 
section 301(h)(6)). These requirements apply to POTWs serving a 
population of 50,000 or more, with respect to any toxic pollutant as 
defined by Sec. 125.58(aa) introduced into the POTW by an industrial 
source. Applicants subject to this provision must demonstrate that 
industrial sources are in compliance with all applicable pretreatment 
requirements, and that the applicant will enforce those requirements. 
Also, for each toxic pollutant for which there is no applicable 
pretreatment requirement in effect, the applicant must have in effect a 
pretreatment program which, in combination with the treatment of 
discharges from the POTW, removes the same amount of such pollutant as 
would be removed if the POTW were to apply secondary treatment and had 
no pretreatment program for such pollutant.
    To implement these provisions, the proposed rule added Sec. 125.65 
and added or revised certain definitions in Sec. 125.58. Proposed 
Sec. 125.65(a)(2) clarified that the requirements of Sec. 125.65 are to 
apply in addition to any applicable pretreatment requirements contained 
in 40 CFR part 403 and that nothing in Sec. 125.65 is intended to waive 
or relax the 40 CFR part 403 requirements.
    Section 125.65 provides two methods for satisfying the urban area 
pretreatment requirements. For each toxic pollutant introduced by an 
industrial discharger, the applicant must demonstrate that it either 
(1) has an ``applicable pretreatment requirement in effect'' or (2) has 
in effect a program that achieves ``secondary removal equivalency.'' 
EPA received a number of comments requesting clarification of this 
provision, as well as comments related to pretreatment requirements, 
which toxic pollutants should be subject to urban area pretreatment 
requirements, demonstration of secondary equivalency, and enforcement 
of pretreatment requirements.
Scope of Pollutants to be Addressed
    Some commenters believe that the urban area pretreatment program 
requirements should apply only to ``pollutants of concern,'' rather 
than applying to all priority pollutants introduced by industrial 
dischargers. Commenters were concerned that the requirements might be 
interpreted to apply to all 126 priority pollutants, whether or not 
these are known or suspected to be discharged to the POTW by industry. 
They believe the urban area pretreatment requirements should be limited 
to those priority pollutants that are specifically known to pose a 
threat or potential threat to human health, safety, or environmental 
quality. These commenters stated that pollutants of concern should not 
include pollutants that do not pose such a risk and provided several 
options for identifying pollutants of concern, i.e., by excluding from 
coverage pollutants (1) only discharged in small amounts by one 
industry; (2) meeting water quality standards at the boundary of 
initial mixing; (3) discharged in effluent at a threshold level percent 
of an applicable water quality standard, criterion, or permit limit; 
(4) discharged in low concentrations; (5) which do not interfere or 
threaten to interfere with the attainment or maintenance of water 
quality objectives as found in Sec. 125.62; or (6) not detected in the 
effluent of the POTW. These commenters felt that developing local 
limits for all toxic pollutants would be difficult and overly 
burdensome. The commenters further stated that a distinction should be 
made between significant and insignificant industrial dischargers.
    EPA has not adopted these suggested changes in today's rule. The 
statute clearly states that the urban area pretreatment requirement 
applies to any toxic pollutant introduced into the POTW by an 
industrial discharger. Therefore, EPA believes the regulations should 
address all such toxic pollutants. However, this means only those toxic 
pollutants known or suspected to be introduced to the POTW by an 
industrial discharger. Thus, if all 126 priority pollutants are not 
discharged to a given POTW, not all 126 priority pollutants will need 
an applicable pretreatment requirement, e.g., categorical standard or 
local limit. EPA notes, however, that the industrial user's survey must 
be comprehensive, addressing all non-domestic sources, to assure that 
the POTW takes all toxics from industrial sources into account. 
Guidance is provided in the TSD to help identify toxics known or 
suspected to be discharged from several industries not subject to 
categorical pretreatment regulations.
    One commenter asserted that receiving waters should be the focus of 
this requirement; that is, it is inappropriate to have technology-based 
requirements when receiving waters do not warrant them. The commenter 
further stated that the requirement should focus on whole effluent 
toxicity. In response, EPA notes that the statutory provision is 
technology-based, and refers to each toxic pollutant introduced by 
industrial sources. Other Clean Water Act provisions address whole 
effluent toxicity and this has been taken into account.
Applicable Pretreatment Requirements
    As specified in Sec. 125.65(c) of the proposed regulations, 
applicable pretreatment requirements could take the form of federal 
categorical pretreatment standards promulgated by EPA under section 307 
of the CWA, local limits developed in accordance with 40 CFR part 403, 
or a combination of both. As proposed, therefore, applicable 
pretreatment requirements consist of the following as stated in 
Sec. 125.65(c):
    (i) for each industrial source discharging to the applicant's 
treatment works for which there is no applicable categorical 
pretreatment standard for the toxic pollutant, a local limit or limits 
on the toxic pollutant satisfying the requirements of 40 CFR part 403 
and Sec. 125.62;
    (ii) for each industrial source discharging to the applicant's 
treatment works that is subject to a categorical pretreatment standard 
for the toxic pollutant, the categorical standard plus a local limit or 
limits as necessary to satisfy the requirements of 40 CFR part 403 and 
Sec. 125.62.
    One commenter stated that ``applicable pretreatment requirements'' 
should be developed to ensure compliance with 40 CFR part 403 and not 
also to ensure compliance with requirements in Sec. 125.62, which 
addresses protection of a balanced indigenous population (BIP). This 
commenter pointed out that the requirements to achieve a BIP already 
must be satisfied under Sec. 125.62 if the section 301(h) permit 
modification is to be granted. Further, it is unnecessarily restrictive 
to specify that the BIP requirements be met by applying local limits 
rather than through other means.
    EPA agrees and has clarified this provision in the final rule by 
deleting the reference to Sec. 125.62 from Sec. 125.65 (c)(1) (i), (ii) 
and (2). Any section 301(h) discharge must comply with the BIP 
requirements of the regulations, but how this is achieved, whether by 
local pretreatment standards or other toxics control measures, is at 
the discretion of the applicant. The Agency never intended to require 
that local limits alone must be shown to independently protect a BIP. 
The intent was that local limits would be developed to meet 40 CFR part 
403 and Sec. 125.65 and would be at least one aspect of overall toxic 
control efforts by the applicant that would contribute as a whole to 
meeting the requirements of a BIP. It should be noted, however, that 
conditions necessary to achieve and perpetuate a BIP may be used as a 
basis for setting a local limit.
    Because the regulations already require compliance with 
Sec. 125.62, and in light of the concerns raised over linkage of local 
limits to the Sec. 125.62 requirement, EPA is making this change to the 
final regulations. This change does not alter the requirement to meet 
all other section 301(h) provisions.
    Some commenters believe that provisions should be included for 
local limits to consider sludge quality and the potential for air toxic 
emissions. Under the Agency's existing local limit program under 40 CFR 
part 403, and sewage sludge regulations at 40 CFR parts 257, 403 and 
503, local limits may be required where necessary to protect sludge 
quality so as not to interfere with its management and ultimate 
disposal or beneficial use, and where necessary to protect plant 
workers. The pretreatment regulations address air toxic emissions 
within the POTW to protect worker health and safety. The commenters' 
concerns regarding sludge quality and incineration, and resultant air 
emissions are addressed by the Agency's pretreatment regulations, 
sewage sludge regulations and regulations under the Clean Air Act. The 
Agency has begun to address standards for air toxic emissions from 
POTWs.
    The comments taken as a whole show some confusion about how EPA 
expects the ``applicable pretreatment requirement in effect'' provision 
of the urban area pretreatment program to be implemented. Commenters 
were concerned that these requirements were overly burdensome and 
sought flexibility. Commenters pointed out that requirements for every 
industrial user are unnecessary for ensuring an adequate local limit 
for the toxic pollutant. After considering these comments, EPA has 
revised its approach as follows. First, the POTW need not apply a 
specific local limit to each and every industrial source of each toxic 
pollutant. Instead, after conducting a local limits analysis, the POTW 
may apportion the allocation to industrial sources of the toxic in the 
way that the POTW deems most appropriate, subject to the approval of 
the Regional Administrator. This could include not imposing any limit 
for the pollutant on certain industrial users. This modification should 
achieve the same end result as the proposal, that is, to attain the 
same level of toxic pollutant reduction, while providing flexibility to 
the POTW to implement the provision. The Guidance Manual on the 
Development and Implementation of Local Discharge Limitations under the 
Pretreatment Program discusses how to allocate local limits among 
industrial sources for all POTWs, not just 301(h) applicants. EPA 
believes that the approach of POTWs under 301(h)(6) should be 
consistent with that guidance. This approach is less burdensome to 
implement while still achieving equivalent reductions in toxics.
    Second, the applicant can show an ``applicable pretreatment 
requirement in effect'' for those toxic pollutants for which there is 
no applicable categorical pretreatment standard, and for which the 
applicant determines, based on the 40 CFR part 403 analyses, that a 
local limit is not necessary. The permit in these cases will require 
the applicant to demonstrate on an annual basis over the permit term, 
that a local limit is not necessary and, where appropriate, will 
require the applicant to institute industrial management practices 
plans.
    The following steps are intended to clarify how EPA will implement 
the ``applicable pretreatment requirement in effect'' provision for 
toxic pollutants:
    (1) The applicant must conduct an industrial user survey as 
required by 40 CFR part 403 and Sec. 125.66;
    (2) The applicant must conduct representative sampling and analysis 
of the POTW's influent, effluent, and sludge for toxic pollutants;
    (3) The applicant must implement the national categorical standards 
for each industrial source subject to categorical standards;
    (4) For those toxic pollutants known or suspected to be introduced 
by an industrial source, the applicant must conduct an analysis under 
40 CFR part 403 to assess the need for local limits;
    (5) For those toxic pollutants for which the applicant determines, 
based on the 40 CFR part 403 analysis, a need for local limits, the 
applicant must set local limits;
    (6) For those toxic pollutants for which the applicant determines, 
based on the 40 CFR part 403 analysis, that local limits are not 
necessary, the applicant must continue to monitor the POTW influent and 
effluent during the term of the permit and/or conduct technical reviews 
of data on discharges from industrial sources during the term of the 
permit, and where appropriate require industrial users to institute 
industrial management practices plans (IMPs) and other pollution 
prevention activities, to reduce or control the levels of these toxic 
pollutants from industrial sources. These plans and activities could 
include Best Management Practices (BMPs). See TSD and EPA Guidance 
Manual on the Development and Implementation of Local Discharge 
Limitations under the Pretreatment Program (1987 and 1991). For these 
toxic pollutants, applicants would be required to assure EPA on an 
annual basis that these particular toxic pollutants do not result in 
levels that warrant development of local limits. If such monitoring and 
technical review of data indicate that a local limit is needed, the 
POTW shall establish and implement a local limit.
    The basic philosophy of instituting industrial management practice 
plans (IMPs) is to minimize the discharge of toxic or hazardous 
pollutants to the sewer, or reduce the impact of toxic/hazardous 
pollutant discharges by avoiding short-term, high concentration 
discharges. IMPs can be applied to all classes of industrial users, 
e.g., major and minor industrial users. Examples of appropriate uses of 
IMPs include control of chemical spills and sludge discharges to the 
POTW through formal chemical or waste management plans (including 
BMPs), solvent management plans, batch discharge policies, waste 
recycling and waste minimization. It would also be appropriate to 
consider IMPs in cases where the POTW does not include biological 
treatment processes, or provides less treatment, e.g., primary 
treatment.
    In these cases, IMPs can be tailored for industrial sources of 
toxic pollutants that might otherwise interfere with biological 
treatment or would be degraded or removed through additional treatment.
    EPA has added this information to the regulations in response to 
comments. The intent of these steps is to set forth a process that is 
not overly burdensome for applicants but that assures that applicable 
pretreatment requirements are in effect for each toxic pollutant.
Secondary Removal Equivalency
    Under section 301(h)(6) and Sec. 125.65, where there is no 
applicable pretreatment requirement as described above for a toxic 
pollutant known or suspected to be introduced by an industrial 
discharger, the applicant must demonstrate that it has in effect a 
pretreatment program which, in combination with the POTW's own 
treatment of discharges, removes the same amount of the pollutant as 
would be removed if the POTW were to apply secondary treatment to 
discharges and if such works had no pretreatment program with respect 
to the pollutant.
    EPA has termed this the ``secondary removal equivalency'' 
requirement and the proposed rule added this term to the definitions in 
Sec. 125.58(w). To meet the ``secondary removal equivalency'' 
requirement, the applicant must demonstrate that the combination of its 
own treatment plus pretreatment by industrial dischargers achieves 
``secondary removal equivalency.''
    Under today's final rule, to demonstrate secondary removal 
equivalency, an applicant would need to use a secondary treatment pilot 
plant. By diverting part of its waste stream to the pilot plant after 
primary treatment, the applicant would empirically determine the amount 
of a toxic pollutant that would be removed from the waste stream if the 
applicant were to apply full-scale secondary treatment. The applicant 
would then need to demonstrate to EPA that it has a pretreatment 
program in effect which, in combination with its own treatment 
processes, removes at least that total amount of toxic pollutant from 
the POTW's discharge, achieved through concentration- and mass 
emissions-based effluent limits. If at least that amount is not 
removed, then further reductions of the pollutant would be required. 
The NPDES permit will include concentration and/or mass emissions 
effluent limits based on the data from the secondary equivalency 
demonstration when those values are more stringent than effluent limits 
based on State water quality standards or water quality criteria, if 
applicable, and to assure that all of the Sec. 301(h) criteria are met. 
Once such effluent limits are established in an NPDES permit, the POTW 
may either establish local limits or perform additional treatment at 
the POTW, or combine the two to achieve the permit limit.
    Some commenters thought that they would be penalized for having an 
existing pretreatment program if they used pretreated waste to 
determine secondary equivalency, because of the undetermined removals 
by current industrial pretreatment. They urged the use of procedures 
for determining pre-existing (prior to source control) conditions to 
take into account existing toxic pollutant reductions and commented on 
the difficulty of obtaining ``unpretreated'' industrial wastewaters. 
Other commenters thought that the secondary removal equivalency 
demonstration should be made with all other pretreatment requirements 
required by section 301(h)(5) in place, because they reasoned that the 
section 301(h) program does not provide waivers from the toxics 
requirements.
    EPA agrees that the section 301(h) program does not provide a 
waiver from toxics control requirements, and the existing section 
301(h) program already has toxics control requirements, including 
industrial pretreatment, in effect. However, the secondary removal 
equivalency provision of section 301(h)(6) addresses only those toxic 
pollutants that do not have applicable pretreatment requirements in 
effect, and that are being introduced by industrial sources to POTWs 
serving urban areas.
    POTWs will not be penalized for having an applicable pretreatment 
requirement in effect for a particular toxic pollutant. If the POTW has 
an applicable pretreatment requirement in effect for a specific toxic 
pollutant, as described in Sec. 125.65, it will be in compliance with 
Sec. 125.65 with respect to that pollutant, and the POTW will not need 
to comply with the ``secondary removal equivalency'' requirement for 
that pollutant.
    There may, however, be reduced levels of other toxics that are 
discharged to the POTW owing to incidental removals from applicable 
pretreatment requirements targeted to remove specific toxic pollutants. 
Likewise, there may be reduced levels of a specific toxic pollutant 
discharged to the POTW from categorical pretreatment for that toxic 
pollutant that may not satisfy the conditions of an applicable 
pretreatment requirement in effect. Because neither of these two above 
situations satisfy the requirements of ``applicable pretreatment 
requirement in effect'' with respect to these toxic pollutants, the 
applicant would need to demonstrate secondary removal equivalency for 
them. It may be true that the cumulative removal will be lower if 
pretreated influent is used. EPA does not expect this situation to 
occur often because if an applicable pretreatment requirement exists 
for a particular toxic pollutant, then a secondary removal equivalency 
demonstration is not needed for that toxic pollutant. This situation is 
only likely if some pretreatment occurs for other pollutants.
    One commenter asserted that secondary treatment removal equivalency 
is highly impractical and appears to resurrect EPA's discredited 
``removal credit'' system. In response, the statute focuses on the 
levels of toxic pollutants that are removed through a combination of 
pretreatment and POTW treatment processes, regardless of where the 
removal occurs.
    Some commenters felt that the term ``removals'' should not include 
removals obtained by air volatilization and through sludge because this 
is simply a transfer of a pollution problem between media. EPA notes 
that removals obtained by a secondary pilot plant are used simply to 
determine the amount of additional pretreatment and/or POTW treatment 
if any, that would be needed to meet secondary removal equivalency. For 
purposes of achieving removals through a combination of a POTW's 
treatment and pretreatment, EPA will not consider pollutants that 
remain in sludge or are volatilized as removed, except those removals 
that are consistent with sludge and pretreatment regulations. As noted 
in the discussion on ``applicable pretreatment requirements,'' EPA's 
pretreatment and sludge regulations do apply in any case to any POTW 
treatment processes and sludge produced from the POTW.
    Some commenters suggested that EPA identify technology-based limits 
for demonstrating secondary removal equivalency, citing EPA's Fate of 
Priority Pollutants in Publicly Owned Treatment Works, Vol. I (Sept. 
1982) and Vol. II (Sept. 1982) as a basis for establishing such limits. 
In response, in EPA's judgement, the above cited studies demonstrate 
that each POTW's influent is unique based on a variety of factors. 
Secondary treatment removes toxics incidental to the technology for 
reducing BOD and SS, and results in great variability in the levels of 
toxic and non-conventional pollutants in effluent and sludge. The Act 
clearly puts the burden on the applicant to demonstrate and not on EPA 
to develop uniform technology-based standards. In any event, developing 
uniform technology-based standards would be very difficult because of 
the variability of influents, pretreatment levels, and other site-
specific conditions. Therefore, EPA has not developed technology-based 
limits representing characteristic removal of toxic pollutants from 
secondary treatment.
    Commenters also asked EPA to address the costs of the pilot plant 
approach. These costs are addressed in the Economic Impact Analysis.
    In summary, for those toxic pollutants for which there is no 
applicable pretreatment requirement in effect, the POTW must either (1) 
develop and implement an applicable pretreatment requirement or (2) 
demonstrate, through a combination of pretreatment by industry and the 
POTW's own treatment processes, that it removes at least as much of the 
toxic pollutant as would be removed by a POTW that applies secondary 
treatment and that has no pretreatment program for the pollutant. 
Guidance is provided in the TSD.
Compliance Determination
    Several commenters stated that EPA needs to address how a POTW will 
demonstrate that all of its industrial dischargers are in compliance 
with the pretreatment requirements and that EPA would allow less than 
100 percent compliance. Some suggested that EPA should allow POTWs to 
demonstrate compliance with all applicable pretreatment requirements by 
taking all appropriate legal and administrative enforcement actions to 
enforce pretreatment requirements. Others thought that accommodating 
less than 100 percent compliance would introduce considerable 
uncertainty concerning the level of compliance EPA will deem to be 
adequate and the regulations should identify a definite standard by 
which to gauge compliance with this new standard. In addition, 
commenters have provided examples of when less than full compliance 
will be considered acceptable, such as instances of trivial or isolated 
violations.
    For urban area POTWs with significant numbers of industrial users, 
at any given time, it is reasonable to expect that at least one or more 
of those users might be out of compliance. EPA intends to determine a 
POTW's continuing eligibility for a 301(h) waiver under section 
301(h)(6) by measuring industrial user compliance and POTW enforcement 
activities against existing criteria in the Agency's National 
Pretreatment Program. In the proposed rule, EPA explained that it would 
consider the issue of compliance with the pretreatment requirements on 
a case-by-case basis, taking into account the number and nature of non-
compliances. In 1989, EPA established criteria for determining POTW 
compliance with pretreatment implementation obligations. One element of 
these criteria is the level of significant noncompliance of the POTW's 
industrial users. The General Pretreatment Regulations (part 403) 
identify the circumstances when industrial user noncompliance is 
significant. The industrial user significant noncompliance (SNC) 
criteria are set out in 40 CFR 403.8(f)(2)(vii) and address both 
effluent and reporting violations. This policy is consistent with the 
approach in the proposed rule. The General Pretreatment Regulations, 
however, are more explicit. In response to public comments, EPA has 
changed the approach in today's final rule to be consistent with Agency 
enforcement policy and to remove uncertainty.
    For pretreatment purposes, a POTW's enforcement program is 
considered adequate if no more than 15 percent of its industrial users 
meet the SNC criteria in a single year. A similar level of industrial 
user SNC rate will generally be applicable to POTWs with 301(h) 
waivers, but will be subject to facility-specific conditions. In 
addition, a POTW is also considered in SNC if it fails to take formal 
appropriate and timely enforcement action against any industrial user, 
the wastewater from which passes through the POTW or interferes with 
the POTW operations.
    In enforcing the pretreatment programs, POTWs are expected to 
respond to industrial user noncompliance using local enforcement 
authorities in accordance with an approved enforcement response plan 
(ERP) which is required of all approved pretreatment programs (see 40 
CFR 403.5). POTWs, including 301(h) POTWs, with greater than 15 percent 
of their users in SNC, or which fail to enforce appropriately against 
any single industrial user causing pass through or interference, are 
deemed to be failing to enforce their pretreatment program.
    EPA will base its determination on data collected during site 
visits to the POTW and from the POTW's pretreatment program performance 
report required by 40 CFR 403.12(i). These reports include compliance 
information on industrial users gathered by the POTW as well as a 
description of the enforcement activities of the POTW. EPA believes 
that the combination of industrial user compliance and POTW enforcement 
provides an appropriate measurement of the POTW's eligibility for the 
301(h) waiver under section 301(h)(6).
    This interpretation is consistent with the directives in a Senate 
Report on an earlier version of the bill (see S. Rep. No. 1128, 99th 
Cong., 1st Sess. 14 (1985)) as discussed in the proposal (56 FR 2817). 
EPA notes that approval of the 301(h) waiver, which requires that the 
POTW applicant demonstrate that its industrial users are in compliance 
with their applicable pretreatment requirements, provides a substantial 
incentive to the POTW to assure that its industrial users are in 
compliance with all applicable pretreatment requirements. EPA believes 
that an approach relying on a determination of SNC is preferable to 
focusing on trivial or isolated violations, or other suggested methods, 
because it gives clear guidelines and is consistent with the 
enforcement approach in the pretreatment program.
    Section 125.66: This section includes provisions for industrial 
pretreatment and control of toxic pollutants from nonindustrial 
sources. To update compliance deadlines, the proposal made a minor 
change in Sec. 125.66 (c)(1)) regarding deadlines by which applicants 
were required to develop approved pretreatment programs. No comments 
were received on this section and it is being promulgated as proposed.
    Section 125.67: This section discusses the criteria related to 
increased discharges and implements section 301(h)(8) of the CWA. No 
changes were proposed for this section, and no comments were received. 
It remains unchanged.
    Section 125.68: This section sets forth special permit conditions 
to be included in section 301(h) modified NPDES permits. No changes 
were proposed for this section, and no comments were received. It 
remains unchanged.
    Application questionnaires: Under the section 301(h) regulations 
promulgated in 1982, there are two application questionnaires 
(questionnaire is defined in Sec. 125.58), one for use by small 
applicants and one for use by large applicants. The proposal merged 
these into a single questionnaire and added questions as necessary to 
respond to the new requirements of the WQA. No comments were received 
on the proposed changes, and they are promulgated today as proposed.

Other Issues and Comments

    EPA received several technical and minor comments on the draft 
amended TSD guidance document and some comments that addressed the 
regulations or 301(h) program in general. EPA responded to many 
comments by making changes to the TSD as appropriate. The changes are 
not discussed here. Below are responses to comments for which no change 
was made in the TSD, and responses to the general comments.
    One commenter suggested that it is important that significant 
flexibility be provided in making determinations regarding the impacts 
of other sources on water quality until more definitive information is 
available for nonpoint and other source categories. The commenter also 
states that this section appears to be in conflict with Sec. 125.63(b) 
which limits the monitoring program to only those scientific 
investigations necessary to study the effects of the proposed 
discharge. In response, the regulations already address the cumulative 
impacts of a discharge as an integral piece of information necessary to 
analyze the balanced indigenous population requirements of 301(h). It 
is not in conflict with Sec. 125.63(b). The effects of the proposed 
discharge are evaluated in the context of the receiving water 
environment, alone and in combination with other sources of pollutants.
    Another comment recommended that the guidance document be changed 
to require that a date and approval sequence between the State and EPA 
Region be mutually agreed-upon, rather than requiring compliance with 
Sec. 125.59(f)(4), which requires State determinations to be due to the 
regions no later than 90 days after an application is submitted to EPA. 
In response, the TSD simply reflects the regulatory language, which was 
not proposed for change and is not a subject of this rulemaking.
    Another commenter asked that the guidance better define what is 
meant by ``significant ecological change.'' This comment is beyond the 
scope of this rulemaking. The approach to defining a balanced 
indigenous population (BIP) was not proposed for change and EPA is not 
considering redefining the BIP.
    A commenter suggested that the approach to 301(h) waivers should be 
based on water quality effects and not on any ``equivalencies.'' 
Another commenter suggested that if high BOD levels are allowed for 
industrial dischargers under effluent guidelines for certain 
industries, why do we require the 30% removal of BOD and SS for 
municipal effluents? In response to both these comments, the statute 
does not provide us leeway on these issues. The statute is clear on its 
face in requiring equivalency testing and the removal of 30% of BOD and 
SS.
    One commenter requested that strong consideration be given to 
centralizing the evaluation of waiver requests. While this comment is 
beyond the scope of this rulemaking, we recognize the consistency and 
efficiency this might suggest. However, 301(h) waiver applications are 
handled case by case, based on site-specific circumstances. Although 
there is national oversight on the implementation of the program, 
regional evaluation provides the ability to apply regional expertise on 
regional and local circumstances surrounding 301(h) applications.
    EPA also received requests from commenters for additional time to 
comment. EPA accommodated these requests and considered all comments 
received in developing this final rule. Others requested that EPA 
notify industrial users of the proposal. In response, EPA gave a 60 day 
public comment period, which EPA believes to be adequate notice for all 
affected parties.

III. Supporting Documentation

A. Regulatory Flexibility Act

    Under the Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et 
seq.), federal agencies must, when developing regulations, consider the 
impact of the regulations on small entities (small businesses, small 
government jurisdictions, and small organizations). To evaluate whether 
this rule will have a significant economic impact on a substantial 
number of small entities, the Agency has prepared an Economic Impact 
Analysis (EIA). The Agency has concluded, based on the EIA, that this 
rule does not unduly impact on small communities in terms of overall 
cost of compliance. Specifically, none of the small communities will 
end up spending more than 1 percent of median household income on 
wastewater treatment. Moreover, although current treatment costs may 
increase, small communities will still realize an overall cost savings 
if less than secondary treatment is approved through the section 301(h) 
process.
    There were 51 applicants or permittees in the section 301(h) permit 
program at the time of the economic analysis. Out of these 51 
applicants or permittees, only six are both expected to incur 
additional costs due to the primary or equivalent treatment 
requirements and meet the Small Business Administration (SBA) 
definition of a small entity (a service area with a population of less 
than 50,000). All those applicants or permittees subject to and 
expected to incur additional costs due to the urban area pretreatment 
requirements and one of the permittees expected to incur additional 
costs due to the primary or equivalent treatment requirements have 
service area populations of greater than 50,000, and thus are not small 
entities. On a national level, the total estimated capital cost of 
meeting the primary or equivalent treatment requirements for the six 
small entities amounts to less than $7.2 million, with an associated 
operations and maintenance cost of $465,000 per year. Assuming a 20-
year repayment schedule, the total annualized cost, for the six small 
entities, equals approximately $675,000 a year. After compliance with 
the primary or equivalent treatment requirements, the total annual 
sewer fee charged by these ten small entities is less than 1 percent of 
the community's median household income. Consequently, none of the 
small entities affected by this rule are expected to incur significant 
economic impacts, especially in light of the overall savings garnered 
by these communities from not having to comply with secondary treatment 
requirements.
    In summary, I certify that this rule will not have a significant 
economic impact on a substantial number of entities.

B. Executive Order 12866

    Under Executive Order 12866, [58 Federal Register 51735 (October 4, 
1993)] the Agency must determine whether the regulatory action is 
``significant'' and therefore subject to OMB review and the 
requirements of the Executive Order. The Order defines ``significant 
regulatory action'' as one that is likely to result in a rule that may:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive order.
    It has been determined that this rule is not a ``significant 
regulatory action'' under the terms of Executive Order 12866 and is 
therefore not subject to OMB review.

C. Paperwork Reduction Act

    The information collection requirements of this rule have been 
approved by the Office of Management and Budget (OMB) under the 
Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and have been assigned 
control number 2040-0088.
    The estimated average annual burden hours for the collection of 
information is approximately 1,006 hours per POTW respondent, and 120 
hours per State respondent. Of that, the incremental burden from these 
regulatory changes is approximately 192 hours per small facility, 256 
hours per large facility, and 40 hours per State respondent. These 
estimates include the time for reviewing instructions, for POTWs to 
collect information to comply with this final rule, including 
conducting monitoring and toxics control activities, and completing and 
submitting the applicant questionnaire, as well as time for States to 
prepare the State determinations and certifications. No comments were 
received on the information collection requirements.
    Send comments regarding the burden estimate or any other aspect of 
this collection of information, including suggestions for reducing this 
burden to Chief, Information Policy Branch, EPA, 401 M Street, S.W., 
(Mail Code 2136), Washington, D.C. 20460; and to the Office of 
Management and Budget, Washington, D.C. 20503, marked ``Attention: Desk 
Officer for EPA.''

List of Subjects in 40 CFR Part 125

    Environmental protection, Marine point source discharges, Reporting 
and recordkeeping, Waste treatment and disposal, Water pollution 
control.

    Dated: July 14, 1994.
Carol M. Browner,
Administrator.

    For the reasons set out in the preamble, part 125 of Title 40 of 
the Code of Federal Regulations is amended as set forth below. Note: 
For clarity, EPA has set forth below part 125, subpart G in its 
entirety. However, the Agency is amending only portions of these 
regulations in today's notice. Although the existing portions of 
subpart G that EPA is not amending are also set forth below, EPA did 
not reconsider those portions and they are not subject to challenge as 
part of this final rulemaking.

PART 125--CRITERIA AND STANDARDS FOR THE NATIONAL POLLUTANT 
DISCHARGE ELIMINATION SYSTEM

    1. The authority citation for 40 CFR part 125, subpart G is revised 
to read as follows:

    Authority: Clean Water Act, as amended by the Clean Water Act of 
1977, 33 U.S.C. 1251 et seq., unless otherwise noted.

    2. 40 CFR part 125, subpart G is revised to read as follows:

Subpart G--Criteria for Modifying the Secondary Treatment Requirements 
Under Section 301(h) of the Clean Water Act

Sec.
125.56  Scope and purpose.
125.57  Law governing issuance of a section 301(h) modified permit.
125.58  Definitions.
125.59  General.
125.60  Primary or equivalent treatment requirements.
125.61  Existence of and compliance with applicable water quality 
standards.
125.62  Attainment or maintenance of water quality which assures 
protection of public water supplies; assures the protection and 
propagation of a balanced, indigenous population of shellfish, fish, 
and wildlife; and allows recreational activities.
125.63  Establishment of a monitoring program.
125.64  Effect of the discharge on other point and nonpoint sources.
125.65  Urban area pretreatment program.
125.66  Toxics control program.
125.67  Increase in effluent volume or amount of pollutants 
discharged.
125.68  Special conditions for section 301(h) modified permits.

Appendix to Subpart G--Applicant Questionnaire for Modification of 
Secondary Treatment Requirements

Subpart G--Criteria for Modifying the Secondary Treatment 
Requirements Under Section 301(h) of the Clean Water Act


Sec. 125.56  Scope and purpose.

    This subpart establishes the criteria to be applied by EPA in 
acting on section 301(h) requests for modifications to the secondary 
treatment requirements. It also establishes special permit conditions 
which must be included in any permit incorporating a section 301(h) 
modification of the secondary treatment requirements (``section 301(h) 
modified permit'').


Sec. 125.57  Law governing issuance of a section 301(h) modified 
permit.

    (a) Section 301(h) of the Clean Water Act provides that:

    Administrator, with the concurrence of the State, may issue a 
permit under section 402 which modifies the requirements of 
paragraph (b)(1)(B) of this section with respect to the discharge of 
any pollutant from a publicly owned treatment works into marine 
waters, if the applicant demonstrates to the satisfaction of the 
Administrator that--
    (1) There is an applicable water quality standard specific to 
the pollutant for which the modification is requested, which has 
been identified under section 304(a)(6) of this Act;
    (2) The discharge of pollutants in accordance with such modified 
requirements will not interfere, alone or in combination with 
pollutants from other sources, with the attainment or maintenance of 
that water quality which assures protection of public water supplies 
and protection and propagation of a balanced indigenous population 
of shellfish, fish, and wildlife, and allows recreational 
activities, in and on the water;
    (3) The applicant has established a system for monitoring the 
impact of such discharge on a representative sample of aquatic 
biota, to the extent practicable, and the scope of such monitoring 
is limited to include only those scientific investigations which are 
necessary to study the effects of the proposed discharge;
    (4) Such modified requirements will not result in any additional 
requirements on any other point or nonpoint source;
    (5) All applicable pretreatment requirements for sources 
introducing waste into such treatment works will be enforced;
    (6) In the case of any treatment works serving a population of 
50,000 or more, with respect to any toxic pollutant introduced into 
such works by an industrial discharger for which pollutant there is 
no applicable pretreatment requirement in effect, sources 
introducing waste into such works are in compliance with all 
applicable pretreatment requirements, the applicant will enforce 
such requirements, and the applicant has in effect a pretreatment 
program which, in combination with the treatment of discharges from 
such works, removes the same amount of such pollutant as would be 
removed if such works were to apply secondary treatment to 
discharges and if such works had no pretreatment program with 
respect to such pollutant;
    (7) To the extent practicable, the applicant has established a 
schedule of activities designed to eliminate the entrance of toxic 
pollutants from nonindustrial sources into such treatment works;
    (8) There will be no new or substantially increased discharges 
from the point source of the pollutant to which the modification 
applies above that volume of discharge specified in the permit;
    (9) The applicant at the time such modification becomes 
effective will be discharging effluent which has received at least 
primary or equivalent treatment and which meets the criteria 
established under section 304(a)(1) of this Act after initial mixing 
in the waters surrounding or adjacent to the point at which such 
effluent is discharged.
    For the purposes of this section, the phrase ``the discharge of 
any pollutant into marine waters'' refers to a discharge into deep 
waters of the territorial sea or the waters of the contiguous zone, 
or into saline estuarine waters where there is strong tidal movement 
and other hydrological and geological characteristics which the 
Administrator determines necessary to allow compliance with 
paragraph (2) of this section, and section 101(a)(2) of this Act. 
For the purposes of paragraph (9), ``primary or equivalent 
treatment'' means treatment by screening, sedimentation, and 
skimming adequate to remove at least 30 percent of the biological 
oxygen demanding material and of the suspended solids in the 
treatment works influent, and disinfection, where appropriate. A 
municipality which applies secondary treatment shall be eligible to 
receive a permit pursuant to this subsection which modifies the 
requirements of paragraph (b)(1)(B) of this section with respect to 
the discharge of any pollutant from any treatment works owned by 
such municipality into marine waters. No permit issued under this 
subsection shall authorize the discharge of sewage sludge into 
marine waters. In order for a permit to be issued under this 
subsection for the discharge of a pollutant into marine waters, such 
marine waters must exhibit characteristics assuring that water 
providing dilution does not contain significant amounts of 
previously discharged effluent from such treatment works. No permit 
issued under this subsection shall authorize the discharge of any 
pollutant into saline estuarine waters which at the time of 
application do not support a balanced indigenous population of 
shellfish, fish, and wildlife, or allow recreation in and on the 
waters or which exhibit ambient water quality below applicable water 
quality standards adopted for the protection of public water 
supplies, shellfish, fish, and wildlife or recreational activities 
or such other standards necessary to assure support and protection 
of such uses. The prohibition contained in the preceding sentence 
shall apply without regard to the presence or absence of a causal 
relationship between such characteristics and the applicant's 
current or proposed discharge. Notwithstanding any other provisions 
of this subsection, no permit may be issued under this subsection 
for discharge of a pollutant into the New York Bight Apex consisting 
of the ocean waters of the Atlantic Ocean westward of 73 degrees 30 
minutes west longitude and northward of 40 degrees 10 minutes north 
latitude.

    (b) Section 301(j)(1) of the Clean Water Act provides that:

    Any application filed under this section for a modification of 
the provisions of--
    (A) subsection (b)(1)(B) under subsection (h) of this section 
shall be filed not later than the 365th day which begins after the 
date of enactment of the Municipal Wastewater Treatment Construction 
Grant Amendments of 1981, except that a publicly owned treatment 
works which prior to December 31, 1982, had a contractual 
arrangement to use a portion of the capacity of an ocean outfall 
operated by another publicly owned treatment works which has applied 
for or received modification under subsection (h) may apply for a 
modification of subsection (h) in its own right not later than 30 
days after the date of the enactment of the Water Quality Act of 
1987.

    (c) Section 22(e) of the Municipal Wastewater Treatment 
Construction Grant Amendments of 1981, Public Law 97-117, provides 
that:

    The amendments made by this section shall take effect on the 
date of enactment of this Act except that no applicant, other than 
the city of Avalon, California, who applies after the date of 
enactment of this Act for a permit pursuant to subsection (h) of 
section 301 of the Federal Water Pollution Control Act which 
modifies the requirements of subsection (b)(1)(B) of section 301 of 
such Act shall receive such permit during the one-year period which 
begins on the date of enactment of this Act.

    (d) Section 303(b)(2) of the Water Quality Act, Public Law 100-4, 
provides that:

    Section 301(h)(3) shall only apply to modifications and renewals 
of modifications which are tentatively or finally approved after the 
date of the enactment of this Act.

    (e) Section 303(g) of the Water Quality Act provides that:

    The amendments made to sections 301(h) and (h)(2), as well as 
provisions of (h)(6) and (h)(9), shall not apply to an application 
for a permit under section 301(h) of the Federal Water Pollution 
Control Act which has been tentatively or finally approved by the 
Administrator before the date of the enactment of this Act; except 
that such amendments shall apply to all renewals of such permits 
after such date of enactment.


Sec. 125.58  Definitions.

    For the purpose of this subpart:
    (a) Administrator means the EPA Administrator or a person 
designated by the EPA Administrator.
    (b) Altered discharge means any discharge other than a current 
discharge or improved discharge, as defined in this regulation.
    (c) Applicant means an applicant for a new or renewed section 
301(h) modified permit. Large applicants have populations contributing 
to their POTWs equal to or more than 50,000 people or average dry 
weather flows of 5.0 million gallons per day (mgd) or more; small 
applicants have contributing populations of less than 50,000 people and 
average dry weather flows of less than 5.0 mgd. For the purposes of 
this definition the contributing population and flows shall be based on 
projections for the end of the five-year permit term. Average dry 
weather flows shall be the average daily total discharge flows for the 
maximum month of the dry weather season.
    (d) Application means a final application previously submitted in 
accordance with the June 15, 1979, section 301(h) regulations (44 FR 
34784); an application submitted between December 29, 1981, and 
December 29, 1982; or a section 301(h) renewal application submitted in 
accordance with these regulations. It does not include a preliminary 
application submitted in accordance with the June 15, 1979, section 
301(h) regulations.
    (e) Application questionnaire means EPA's ``Applicant Questionnaire 
for Modification of Secondary Treatment Requirements,'' published as an 
appendix to this subpart.
    (f) Balanced indigenous population means an ecological community 
which:
    (1) Exhibits characteristics similar to those of nearby, healthy 
communities existing under comparable but unpolluted environmental 
conditions; or
    (2) May reasonably be expected to become re-established in the 
polluted water body segment from adjacent waters if sources of 
pollution were removed.
    (g) Categorical pretreatment standard means a standard promulgated 
by EPA under 40 CFR Chapter I, Subchapter N.
    (h) Current discharge means the volume, composition, and location 
of an applicant's discharge at the time of permit application.
    (i) Improved discharge means the volume, composition, and location 
of an applicant's discharge following:
    (1) Construction of planned outfall improvements, including, 
without limitation, outfall relocation, outfall repair, or diffuser 
modification; or
    (2) Construction of planned treatment system improvements to 
treatment levels or discharge characteristics; or
    (3) Implementation of a planned program to improve operation and 
maintenance of an existing treatment system or to eliminate or control 
the introduction of pollutants into the applicant's treatment works.
    (j) Industrial discharger or industrial source means any source of 
nondomestic pollutants regulated under section 307(b) or (c) of the 
Clean Water Act which discharges into a POTW.
    (k) Modified discharge means the volume, composition, and location 
of the discharge proposed by the applicant for which a modification 
under section 301(h) of the Act is requested. A modified discharge may 
be a current discharge, improved discharge, or altered discharge.
    (l) New York Bight Apex means the ocean waters of the Atlantic 
Ocean westward of 73 degrees 30 minutes west longitude and northward of 
40 degrees 10 minutes north latitude.
    (m) Nonindustrial source means any source of pollutants which is 
not an industrial source.
    (n) Ocean waters means those coastal waters landward of the 
baseline of the territorial seas, the deep waters of the territorial 
seas, or the waters of the contiguous zone. The term ``ocean waters'' 
excludes saline estuarine waters.
    (o) Permittee means an NPDES permittee with an effective section 
301(h) modified permit.
    (p) Pesticides means demeton, guthion, malathion, mirex, 
methoxychlor, and parathion.
    (q) Pretreatment means the reduction of the amount of pollutants, 
the elimination of pollutants, or the alteration of the nature of 
pollutant properties in wastewater prior to or in lieu of discharging 
or otherwise introducing such pollutants into a POTW. The reduction or 
alteration may be obtained by physical, chemical, or biological 
processes, process changes, or by other means, except as prohibited by 
40 CFR part 403.
    (r) Primary or equivalent treatment for the purposes of this 
subpart means treatment by screening, sedimentation, and skimming 
adequate to remove at least 30 percent of the biochemical oxygen 
demanding material and of the suspended solids in the treatment works 
influent, and disinfection, where appropriate.
    (s) Public water supplies means water distributed from a public 
water system.
    (t) Public water system means a system for the provision to the 
public of piped water for human consumption, if such system has at 
least fifteen (15) service connections or regularly serves at least 
twenty-five (25) individuals. This term includes: (1) Any collection, 
treatment, storage, and distribution facilities under the control of 
the operator of the system and used primarily in connection with the 
system, and (2) Any collection or pretreatment storage facilities not 
under the control of the operator of the system which are used 
primarily in connection with the system.
    (u) Publicly owned treatment works or POTW means a treatment works, 
as defined in section 212(2) of the Act, which is owned by a State, 
municipality, or intermunicipal or interstate agency.
    (v) Saline estuarine waters means those semi-enclosed coastal 
waters which have a free connection to the territorial sea, undergo net 
seaward exchange with ocean waters, and have salinities comparable to 
those of the ocean. Generally, these waters are near the mouth of 
estuaries and have cross-sectional annual mean salinities greater than 
twenty-five (25) parts per thousand.
    (w) Secondary removal equivalency means that the amount of a toxic 
pollutant removed by the combination of the applicant's own treatment 
of its influent and pretreatment by its industrial users is equal to or 
greater than the amount of the toxic pollutant that would be removed if 
the applicant were to apply secondary treatment to its discharge where 
the discharge has not undergone pretreatment by the applicant's 
industrial users.
    (x) Secondary treatment means the term as defined in 40 CFR part 
133.
    (y) Shellfish, fish, and wildlife means any biological population 
or community that might be adversely affected by the applicant's 
modified discharge.
    (z) Stressed waters means those ocean waters for which an applicant 
can demonstrate to the satisfaction of the Administrator, that the 
absence of a balanced indigenous population is caused solely by human 
perturbations other than the applicant's modified discharge.
    (aa) Toxic pollutants means those substances listed in 40 CFR 
401.15.
    (bb) Water quality criteria means scientific data and guidance 
developed and periodically updated by EPA under section 304(a)(1) of 
the Clean Water Act, which are applicable to marine waters.
    (cc) Water quality standards means applicable water quality 
standards which have been approved, left in effect, or promulgated 
under section 303 of the Clean Water Act.
    (dd) Zone of initial dilution (ZID) means the region of initial 
mixing surrounding or adjacent to the end of the outfall pipe or 
diffuser ports, provided that the ZID may not be larger than allowed by 
mixing zone restrictions in applicable water quality standards.


Sec. 125.59  General.

    (a) Basis for application. An application under this subpart shall 
be based on a current, improved, or altered discharge into ocean waters 
or saline estuarine waters.
    (b) Prohibitions. No section 301(h) modified permit shall be 
issued:
    (1) Where such issuance would not assure compliance with all 
applicable requirements of this subpart and part 122;
    (2) For the discharge of sewage sludge;
    (3) Where such issuance would conflict with applicable provisions 
of State, local, or other Federal laws or Executive Orders. This 
includes compliance with the Coastal Zone Management Act of 1972, as 
amended, 16 U.S.C. 1451 et seq.; the Endangered Species Act of 1973, as 
amended, 16 U.S.C. 1531 et seq.; and Title III of the Marine 
Protection, Research and Sanctuaries Act, as amended, 16 U.S.C. 1431 et 
seq.;
    (4) Where the discharge of any pollutant enters into saline 
estuarine waters which at the time of application do not support a 
balanced indigenous population of shellfish, fish, and wildlife, or 
allow recreation in and on the waters or which exhibit ambient water 
quality below applicable water quality standards adopted for the 
protection of public water supplies, shellfish, fish, and wildlife or 
recreational activities or such other standards necessary to assure 
support and protection of such uses. The prohibition contained in the 
preceding sentence shall apply without regard to the presence or 
absence of a causal relationship between such characteristics and the 
applicant's current or proposed discharge; or
    (5) Where the discharge of any pollutant is into the New York Bight 
Apex.
    (c) Applications. Each applicant for a modified permit under this 
subpart shall submit an application to EPA signed in compliance with 40 
CFR part 122, subpart B, which shall contain:
    (1) A signed, completed NPDES Application Standard form A, parts I, 
II, III;
    (2) A completed Application Questionnaire;
    (3) The certification in accordance with 40 CFR 122.22(d);
    (4) In addition to the requirements of Sec. 125.59(c) (1) through 
(3), applicants for permit renewal shall support continuation of the 
modification by supplying to EPA the results of studies and monitoring 
performed in accordance with Sec. 125.63 during the life of the permit. 
Upon a demonstration meeting the statutory criteria and requirements of 
this subpart, the permit may be renewed under the applicable procedures 
of 40 CFR part 124.
    (d) Revisions to applications. (1) POTWs which submitted 
applications in accordance with the June 15, 1979, regulations (44 FR 
34784) may revise their applications one time following a tentative 
decision to propose changes to treatment levels and/or outfall and 
diffuser location and design in accordance with Sec. 125.59(f)(2)(i); 
and
    (2) Other applicants may revise their applications one time 
following a tentative decision to propose changes to treatment levels 
and/or outfall and diffuser location and design in accordance with 
Sec. 125.59(f)(2)(i). Revisions by such applicants which propose 
downgrading treatment levels and/or outfall and diffuser location and 
design must be justified on the basis of substantial changes in 
circumstances beyond the applicant's control since the time of 
application submission.
    (3) Applicants authorized or requested to submit additional 
information under Sec. 125.59(g) may submit a revised application in 
accordance with Sec. 125.59(f)(2)(ii) where such additional information 
supports changes in proposed treatment levels and/or outfall location 
and diffuser design. The opportunity for such revision shall be in 
addition to the one-time revision allowed under Sec. 125.59(d) (1) and 
(2).
    (4) POTWs which revise their applications must:
    (i) Modify their NPDES form and Application Questionnaire as needed 
to ensure that the information filed with their application is correct 
and complete;
    (ii) Provide additional analysis and data as needed to demonstrate 
compliance with this subpart;
    (iii) Obtain new State determinations under Secs. 125.61(b)(2) and 
125.64(b); and
    (iv) Provide the certification described in paragraph (c)(3) of 
this section.
    (5) Applications for permit renewal may not be revised.
    (e) Submittal of additional information to demonstrate compliance 
with Secs. 125.60 and 125.65. (1) On or before the deadline established 
in paragraph (f)(3) of this section, applicants shall submit a letter 
of intent to demonstrate compliance with Secs. 125.60 and 125.65. The 
letter of intent is subject to approval by the Administrator based on 
the requirements of this paragraph and paragraph (f)(3) of this 
section. The letter of intent shall consist of the following:
    (i) For compliance with Sec. 125.60: (A) A description of the 
proposed treatment system which upgrades treatment to satisfy the 
requirements of Sec. 125.60.
    (B) A project plan, including a schedule for data collection and 
for achieving compliance with Sec. 125.60. The project plan shall 
include dates for design and construction of necessary facilities, 
submittal of influent/effluent data, and submittal of any other 
information necessary to demonstrate compliance with Sec. 125.60. The 
Administrator will review the project plan and may require revisions 
prior to authorizing submission of the additional information.
    (ii) For compliance with Sec. 125.65: (A) A determination of what 
approach will be used to achieve compliance with Sec. 125.65.
    (B) A project plan for achieving compliance. The project plan shall 
include any necessary data collection activities, submittal of 
additional information, and/or development of appropriate pretreatment 
limits to demonstrate compliance with Sec. 125.65. The Administrator 
will review the project plan and may require revisions prior to 
submission of the additional information.
    (iii) POTWs which submit additional information must:
    (A) Modify their NPDES form and Application Questionnaire as needed 
to ensure that the information filed with their application is correct 
and complete;
    (B) Obtain new State determinations under Secs. 125.61(b)(2) and 
125.64(b); and
    (C) Provide the certification described in paragraph (c)(3) of this 
section.
    (2) The information required under this paragraph must be submitted 
in accordance with the schedules in Sec. 125.59(f)(3)(ii). If the 
applicant does not meet these schedules for compliance, EPA may deny 
the application on that basis.
    (f) Deadlines and distribution--(1) Applications.--(i) The 
application for an original 301(h) permit for POTWs which directly 
discharges effluent into saline waters shall be submitted to the 
appropriate EPA Regional Administrator no later than December 29, 1982.
    (ii) The application for renewal of a 301(h) modified permit shall 
be submitted no less than 180 days prior to the expiration of the 
existing permit, unless permission for a later date has been granted by 
the Administrator. (The Administrator shall not grant permission for 
applications to be submitted later than the expiration date of the 
existing permit.)
    (iii) A copy of the application shall be provided to the State and 
interstate agency(s) authorized to provide certification/concurrence 
under Secs. 124.53 through 124.55 on or before the date the application 
is submitted to EPA.
    (2) Revisions to Applications. (i) Applicants desiring to revise 
their applications under Sec. 125.59 (d)(1) or (d)(2) must:
    (A) Submit to the appropriate Regional Administrator a letter of 
intent to revise their application either within 45 days of the date of 
EPA's tentative decision on their original application or within 45 
days of November 26, 1982, whichever is later. Following receipt by EPA 
of a letter of intent, further EPA proceedings on the tentative 
decision under 40 CFR part 124 will be stayed.
    (B) Submit the revised application as described for new 
applications in Sec. 125.59(f)(1) either within one year of the date of 
EPA's tentative decision on their original application or within one 
year of November 26, 1982, if a tentative decision has already been 
made, whichever is later.
    (ii) Applicants desiring to revise their applications under 
Sec. 125.59(d)(3) must submit the revised application as described for 
new applications in Sec. 125.59(f)(1) concurrent with submission of the 
additional information under Sec. 125.59(g).
    (3) Deadline for additional information to demonstrate compliance 
with Secs. 125.60 and 125.65.
    (i) A letter of intent required under Sec. 125.59(e)(1) must be 
submitted by the following dates: for permittees with 301(h) 
modifications or for applicants to which a tentative or final decision 
has been issued, November 7, 1994; for all others, within 90 days after 
the Administrator issues a tentative decision on an application. 
Following receipt by EPA of a letter of intent containing the 
information required in Sec. 125.59(e)(1), further EPA proceedings on 
the tentative decision under 40 CFR part 124 will be stayed.
    (ii) The project plan submitted under Sec. 125.59(e)(1) shall 
ensure that the applicant meets all the requirements of Secs. 125.60 
and 125.65 by the following deadlines:
    (A) By August 9, 1996 for applicants that are not grandfathered 
under Sec. 125.59(j).
    (B) At the time of permit renewal or by August 9, 1996, whichever 
is later, for applicants that are grandfathered under Sec. 125.59(j).
    (4) State determination deadline. State determinations, as required 
by Secs. 125.61(b)(2) and 125.64(b) shall be filed by the applicant 
with the appropriate Regional Administrator no later than 90 days after 
submission of the revision to the application or additional information 
to EPA. Extensions to this deadline may be provided by EPA upon 
request. However, EPA will not begin review of the revision to the 
application or additional information until a favorable State 
determination is received by EPA. Failure to provide the State 
determination within the timeframe required by this paragraph (f)(4) is 
a basis for denial of the application.
    (g)(1) The Administrator may authorize or request an applicant to 
submit additional information by a specified date not to exceed one 
year from the date of authorization or request.
    (2) Applicants seeking authorization to submit additional 
information on current/modified discharge characteristics, water 
quality, biological conditions or oceanographic characteristics must:
    (i) Demonstrate that they made a diligent effort to provide such 
information with their application and were unable to do so, and
    (ii) Submit a plan of study, including a schedule, for data 
collection and submittal of the additional information. EPA will review 
the plan of study and may require revisions prior to authorizing 
submission of the additional information.
    (h) Tentative decisions on section 301(h) modifications. The 
Administrator shall grant a tentative approval or a tentative denial of 
a section 301(h) modified permit application. To qualify for a 
tentative approval, the applicant shall demonstrate to the satisfaction 
of the Administrator that it is using good faith means to come into 
compliance with all the requirements of this subpart and that it will 
meet all such requirements based on a schedule approved by the 
Administrator. For compliance with Secs. 125.60 and 125.65, such 
schedule shall be in accordance with Sec. 125.59(f)(3)(ii).
    (i) Decisions on section 301(h) modifications. (1) The decision to 
grant or deny a section 301(h) modification shall be made by the 
Administrator and shall be based on the applicant's demonstration that 
it has met all the requirements of Secs. 125.59 through 125.68.
    (2) No section 301(h) modified permit shall be issued until the 
appropriate State certification/concurrence is granted or waived 
pursuant to Sec. 124.54 or if the State denies certification/ 
concurrence pursuant to Sec. 124.54.
    (3) In the case of a modification issued to an applicant in a State 
administering an approved permit program under 40 CFR part 123, the 
State Director may:
    (i) Revoke an existing permit as of the effective date of the EPA 
issued section 301(h) modified permit; and
    (ii) Cosign the section 301(h) modified permit if the Director has 
indicated an intent to do so in the written concurrence.
    (4) Any section 301(h) modified permit shall:
    (i) Be issued in accordance with the procedures set forth in 40 CFR 
part 124, except that, because section 301(h) permits may be issued 
only by EPA, the terms ``Administrator or a person designated by the 
Administrator'' shall be substituted for the term ``Director'' as 
appropriate; and
    (ii) Contain all applicable terms and conditions set forth in 40 
CFR part 122 and Sec. 125.68.
    (5) Appeals of section 301(h) determinations shall be governed by 
the procedures in 40 CFR part 124.
    (j) Grandfathering provision. Applicants that received tentative or 
final approval for a section 301(h) modified permit prior to February 
4, 1987, are not subject to Sec. 125.60, the water quality criteria 
provisions of Sec. 125.62(a)(1), or Sec. 125.65 until the time of 
permit renewal. In addition, if permit renewal will occur prior to 
August 9, 1996, applicants may have additional time to come into 
compliance with Secs. 125.60 and 125.65, as determined appropriate by 
EPA on a case-by-case basis. Such additional time, however, shall not 
extend beyond August 9, 1996. This paragraph does not apply to any 
application that was initially tentatively approved, but as to which 
EPA withdrew its tentative approval or issued a tentative denial prior 
to February 4, 1987.


Sec. 125.60  Primary or equivalent treatment requirements.

    (a) The applicant shall demonstrate that, at the time its 
modification becomes effective, it will be discharging effluent that 
has received at least primary or equivalent treatment.
    (b) The applicant shall perform monitoring to ensure, based on the 
monthly average results of the monitoring, that the effluent it 
discharges has received primary or equivalent treatment.
    (c)(1) An applicant may request that the demonstration of 
compliance with the requirement under Sec. 125.60(b) to provide 30 
percent removal of BOD be allowed on an averaging basis different from 
monthly (e.g., quarterly), subject to the demonstrations provided in 
paragraph (c)(2) of this section. If, however, the applicant has 
demonstrated an ability to achieve 30 percent removal of BOD on a 
monthly average basis over the calendar year prior to August 9, 1994, 
the applicant shall not be eligible for an averaging basis longer than 
monthly.
    (2) If the Administrator is satisfied that the applicant has met 
the eligibility requirement of paragraph (c)(1) of this section, the 
Administrator may approve such requests if the applicant demonstrates 
to the Administrator's satisfaction that:
    (i) The applicant's POTW is adequately designed and well operated;
    (ii) The applicant will be able to meet all requirements under 
section 301(h) of the CWA and these subpart G regulations with the 
averaging basis selected; and
    (iii) The applicant cannot achieve 30 percent removal on a monthly 
average basis because of circumstances beyond the applicant's control. 
Circumstances beyond the applicant's control may include seasonally 
dilute influent BOD concentrations due to relatively high (although 
nonexcessive) inflow and infiltration; relatively high soluble to 
insoluble BOD ratios on a fluctuating basis; or cold climates resulting 
in cold influent. Circumstances beyond the applicant's control shall 
not include less concentrated wastewater due to excessive inflow and 
infiltration (I&I). The determination of whether the less concentrated 
wastewater is the result of excessive I&I will be based on the 
definition of excessive I&I in 40 CFR 35.2005(b)(16) plus the 
additional criterion that inflow is nonexcessive if the total flow to 
the POTW (i.e., wastewater plus inflow plus infiltration) is less than 
275 gallons per capita per day.
    (3) In no event shall averaging on a less frequent basis than 
annually be allowed.


Sec. 125.61  Existence of and compliance with applicable water quality 
standards.

    (a) There must exist a water quality standard or standards 
applicable to the pollutant(s) for which a section 301(h) modified 
permit is requested, including:
    (1) Water quality standards for biochemical oxygen demand or 
dissolved oxygen;
    (2) Water quality standards for suspended solids, turbidity, light 
transmission, light scattering, or maintenance of the euphotic zone; 
and
    (3) Water quality standards for pH.
    (b) The applicant must: (1) Demonstrate that the modified discharge 
will comply with the above water quality standard(s); and
    (2) Provide a determination signed by the State or interstate 
agency(s) authorized to provide certification under Secs. 124.53 and 
124.54 that the proposed modified discharge will comply with applicable 
provisions of State law including water quality standards. This 
determination shall include a discussion of the basis for the 
conclusion reached.


Sec. 125.62  Attainment or maintenance of water quality which assures 
protection of public water supplies; assures the protection and 
propagation of a balanced indigenous population of shellfish, fish, and 
wildlife; and allows recreational activities.

    (a) Physical characteristics of discharge. (1) At the time the 
301(h) modification becomes effective, the applicant's outfall and 
diffuser must be located and designed to provide adequate initial 
dilution, dispersion, and transport of wastewater such that the 
discharge does not exceed at and beyond the zone of initial dilution:
    (i) All applicable water quality standards; and
    (ii) All applicable EPA water quality criteria for pollutants for 
which there is no applicable EPA-approved water quality standard that 
directly corresponds to the EPA water quality criterion for the 
pollutant.
    (iii) For purposes of paragraph (a)(1)(ii) of this section, a State 
water quality standard ``directly corresponds'' to an EPA water quality 
criterion only if:
    (A) The State water quality standard addresses the same pollutant 
as the EPA water quality criterion and
    (B) The State water quality standard specifies a numeric criterion 
for that pollutant or State objective methodology for deriving such a 
numeric criterion.
    (iv) The evaluation of compliance with paragraphs (a)(1) (i) and 
(ii) of this section shall be based upon conditions reflecting periods 
of maximum stratification and during other periods when discharge 
characteristics, water quality, biological seasons, or oceanographic 
conditions indicate more critical situations may exist.
    (2) The evaluation under paragraph (a)(1)(ii) of this section as to 
compliance with applicable section 304(a)(1) water quality criteria 
shall be based on the following:
    (i) For aquatic life criteria: The pollutant concentrations that 
must not be exceeded are the numeric ambient values, if any, specified 
in the EPA section 304(a)(1) water quality criteria documents as the 
concentrations at which acute and chronic toxicity to aquatic life 
occurs or that are otherwise identified as the criteria to protect 
aquatic life.
    (ii) For human health criteria for carcinogens: (A) For a known or 
suspected carcinogen, the Administrator shall determine the pollutant 
concentration that shall not be exceeded. To make this determination, 
the Administrator shall first determine a level of risk associated with 
the pollutant that is acceptable for purposes of this section. The 
Administrator shall then use the information in the section 304(a)(1) 
water quality criterion document, supplemented by all other relevant 
information, to determine the specific pollutant concentration that 
corresponds to the identified risk level.
    (B) For purposes of paragraph (a)(2)(ii)(A) of this section, an 
acceptable risk level will be a single level that has been consistently 
used, as determined by the Administrator, as the basis of the State's 
EPA-approved water quality standards for carcinogenic pollutants. 
Alternatively, the Administrator may consider a State's recommendation 
to use a risk level that has been otherwise adopted or formally 
proposed by the State. The State recommendation must demonstrate, to 
the satisfaction of the Administrator, that the recommended level is 
sufficiently protective of human health in light of the exposure and 
uncertainty factors associated with the estimate of the actual risk 
posed by the applicant's discharge. The State must include with its 
demonstration a showing that the risk level selected is based on the 
best information available and that the State has held a public hearing 
to review the selection of the risk level, in accordance with 
provisions of State law and public participation requirements of 40 CFR 
part 25. If the Administrator neither determines that there is a 
consistently used single risk level nor accepts a risk level 
recommended by the State, then the Administrator shall otherwise 
determine an acceptable risk level based on all relevant information.
    (iii) For human health criteria for noncarcinogens: For 
noncarcinogenic pollutants, the pollutant concentrations that must not 
be exceeded are the numeric ambient values, if any, specified in the 
EPA section 304(a)(1) water quality criteria documents as protective 
against the potential toxicity of the contaminant through ingestion of 
contaminated aquatic organisms.
    (3) The requirements of paragraphs (a)(1) and (a)(2) of this 
section apply in addition to, and do not waive or substitute for, the 
requirements of Sec. 125.61.
    (b) Impact of discharge on public water supplies. (1) The 
applicant's modified discharge must allow for the attainment or 
maintenance of water quality which assures protection of public water 
supplies.
    (2) The applicant's modified discharge must not:
    (i) Prevent a planned or existing public water supply from being 
used, or from continuing to be used, as a public water supply; or
    (ii) Have the effect of requiring treatment over and above that 
which would be necessary in the absence of such discharge in order to 
comply with local and EPA drinking water standards.
    (c) Biological impact of discharge. (1) The applicant's modified 
discharge must allow for the attainment or maintenance of water quality 
which assures protection and propagation of a balanced indigenous 
population of shellfish, fish, and wildlife.
    (2) A balanced indigenous population of shellfish, fish, and 
wildlife must exist:
    (i) Immediately beyond the zone of initial dilution of the 
applicant's modified discharge; and
    (ii) In all other areas beyond the zone of initial dilution where 
marine life is actually or potentially affected by the applicant's 
modified discharge.
    (3) Conditions within the zone of initial dilution must not 
contribute to extreme adverse biological impacts, including, but not 
limited to, the destruction of distinctive habitats of limited 
distribution, the presence of disease epicenter, or the stimulation of 
phytoplankton blooms which have adverse effects beyond the zone of 
initial dilution.
    (4) In addition, for modified discharges into saline estuarine 
water:
    (i) Benthic populations within the zone of initial dilution must 
not differ substantially from the balanced indigenous populations which 
exist immediately beyond the boundary of the zone of initial dilution;
    (ii) The discharge must not interfere with estuarine migratory 
pathways within the zone of initial dilution; and
    (iii) The discharge must not result in the accumulation of toxic 
pollutants or pesticides at levels which exert adverse effects on the 
biota within the zone of initial dilution.
    (d) Impact of discharge on recreational activities. (1) The 
applicant's modified discharge must allow for the attainment or 
maintenance of water quality which allows for recreational activities 
beyond the zone of initial dilution, including, without limitation, 
swimming, diving, boating, fishing, and picnicking, and sports 
activities along shorelines and beaches.
    (2) There must be no Federal, State, or local restrictions on 
recreational activities within the vicinity of the applicant's modified 
outfall unless such restrictions are routinely imposed around sewage 
outfalls. This exception shall not apply where the restriction would be 
lifted or modified, in whole or in part, if the applicant were 
discharging a secondary treatment effluent.
    (e) Additional requirements for applications based on improved or 
altered discharges. An application for a section 301(h) modified permit 
on the basis of an improved or altered discharge must include:
    (1) A demonstration that such improvements or alterations have been 
thoroughly planned and studied and can be completed or implemented 
expeditiously;
    (2) Detailed analyses projecting changes in average and maximum 
monthly flow rates and composition of the applicant's discharge which 
are expected to result from proposed improvements or alterations;
    (3) The assessments required by paragraphs (a) through (d) of this 
section based on its current discharge; and
    (4) A detailed analysis of how the applicant's planned improvements 
or alterations will comply with the requirements of paragraphs (a) 
through (d) of this section.
    (f) Stressed waters. An applicant must demonstrate compliance with 
paragraphs (a) through (e) of this section not only on the basis of the 
applicant's own modified discharge, but also taking into account the 
applicant's modified discharge in combination with pollutants from 
other sources. However, if an applicant which discharges into ocean 
waters believes that its failure to meet the requirements of paragraphs 
(a) through (e) of this section is entirely attributable to conditions 
resulting from human perturbations other than its modified discharge 
(including, without limitation, other municipal or industrial 
discharges, nonpoint source runoff, and the applicant's previous 
discharges), the applicant need not demonstrate compliance with those 
requirements if it demonstrates, to the satisfaction of the 
Administrator, that its modified discharge does not or will not:
    (1) Contribute to, increase, or perpetuate such stressed 
conditions;
    (2) Contribute to further degradation of the biota or water quality 
if the level of human perturbation from other sources increases; and
    (3) Retard the recovery of the biota or water quality if the level 
of human perturbation from other sources decreases.


Sec. 125.63  Establishment of a monitoring program.

    (a) General requirements. (1) The applicant must:
    (i) Have a monitoring program that is:
    (A) Designed to provide data to evaluate the impact of the modified 
discharge on the marine biota, demonstrate compliance with applicable 
water quality standards or water quality criteria, as applicable, and 
measure toxic substances in the discharge, and
    (B) Limited to include only those scientific investigations 
necessary to study the effects of the proposed discharge;
    (ii) Describe the sampling techniques, schedules and locations 
(including appropriate control sites), analytical techniques, quality 
control and verification procedures to be used in the monitoring 
program;
    (iii) Demonstrate that it has the resources necessary to implement 
the program upon issuance of the modified permit and to carry it out 
for the life of the modified permit; and
    (iv) Determine the frequency and extent of the monitoring program 
taking into consideration the applicant's rate of discharge, quantities 
of toxic pollutants discharged, and potentially significant impacts on 
receiving water quality, marine biota, and designated water uses.
    (2) The Administrator may require revision of the proposed 
monitoring program before issuing a modified permit and during the term 
of any modified permit.
    (b) Biological monitoring program. The biological monitoring 
program for both small and large applicants shall provide data adequate 
to evaluate the impact of the modified discharge on the marine biota.
    (1) Biological monitoring shall include to the extent practicable:
    (i) Periodic surveys of the biological communities and populations 
which are most likely affected by the discharge to enable comparisons 
with baseline conditions described in the application and verified by 
sampling at the control stations/reference sites during the periodic 
surveys;
    (ii) Periodic determinations of the accumulation of toxic 
pollutants and pesticides in organisms and examination of adverse 
effects, such as disease, growth abnormalities, physiological stress, 
or death;
    (iii) Sampling of sediments in areas of solids deposition in the 
vicinity of the ZID, in other areas of expected impact, and at 
appropriate reference sites to support the water quality and biological 
surveys and to measure the accumulation of toxic pollutants and 
pesticides; and
    (iv) Where the discharge would affect commercial or recreational 
fisheries, periodic assessments of the conditions and productivity of 
fisheries.
    (2) Small applicants are not subject to the requirements of 
paragraph (b)(1) (ii) through (iv) of this section if they discharge at 
depths greater than 10 meters and can demonstrate through a suspended 
solids deposition analysis that there will be negligible seabed 
accumulation in the vicinity of the modified discharge.
    (3) For applicants seeking a section 301(h) modified permit based 
on:
    (i) A current discharge, biological monitoring shall be designed to 
demonstrate ongoing compliance with the requirements of Sec. 125.62(c);
    (ii) An improved discharge or altered discharge other than outfall 
relocation, biological monitoring shall provide baseline data on the 
current impact of the discharge and data which demonstrate, upon 
completion of improvements or alterations, that the requirements of 
Sec. 125.62(c) are met; or
    (iii) An improved or altered discharge involving outfall 
relocation, the biological monitoring shall:
    (A) Include the current discharge site until such discharge ceases; 
and
    (B) Provide baseline data at the relocation site to demonstrate the 
impact of the discharge and to provide the basis for demonstrating that 
requirements of Sec. 125.62(c) will be met.
    (c) Water quality monitoring program. The water quality monitoring 
program shall to the extent practicable:
    (1) Provide adequate data for evaluating compliance with water 
quality standards or water quality criteria, as applicable under 
Sec. 125.62(a)(1);
    (2) Measure the presence of toxic pollutants which have been 
identified or reasonably may be expected to be present in the 
discharge.
    (d) Effluent monitoring program. (1) In addition to the 
requirements of 40 CFR part 122, to the extent practicable, monitoring 
of the POTW effluent shall provide quantitative and qualitative data 
which measure toxic substances and pesticides in the effluent and the 
effectiveness of the toxic control program.
    (2) The permit shall require the collection of data on a frequency 
specified in the permit to provide adequate data for evaluating 
compliance with the percent removal efficiency requirements under 
Sec. 125.60.


Sec. 125.64  Effect of the discharge on other point and nonpoint 
sources.

    (a) No modified discharge may result in any additional pollution 
control requirements on any other point or nonpoint source.
    (b) The applicant shall obtain a determination from the State or 
interstate agency(s) having authority to establish wasteload 
allocations indicating whether the applicant's discharge will result in 
an additional treatment pollution control, or other requirement on any 
other point or nonpoint sources. The State determination shall include 
a discussion of the basis for its conclusion.


Sec. 125.65  Urban area pretreatment program.

    (a) Scope and applicability. (1) The requirements of this section 
apply to each POTW serving a population of 50,000 or more that has one 
or more toxic pollutants introduced into the POTW by one or more 
industrial dischargers and that seeks a section 301(h) modification.
    (2) The requirements of this section apply in addition to any 
applicable requirements of 40 CFR part 403, and do not waive or 
substitute for the part 403 requirements in any way.
    (b) Toxic pollutant control. (1) As to each toxic pollutant 
introduced by an industrial discharger, each POTW subject to the 
requirements of this section shall demonstrate that it either:
    (i) Has an applicable pretreatment requirement in effect in 
accordance with paragraph (c) of this section; or
    (ii) Has in effect a program that achieves secondary removal 
equivalency in accordance with paragraph (d) of this section.
    (2) Each applicant shall demonstrate that industrial sources 
introducing waste into the applicant's treatment works are in 
compliance with all applicable pretreatment requirements, including 
numerical standards set by local limits, and that it will enforce those 
requirements.
    (c) Applicable pretreatment requirement. (1) An applicable 
pretreatment requirement under paragraph (b)(1)(i) of this section with 
respect to a toxic pollutant shall consist of the following:
    (i) As to a toxic pollutant introduced into the applicant's 
treatment works by an industrial discharger for which there is no 
applicable categorical pretreatment standard for the toxic pollutant, a 
local limit or limits on the toxic pollutant as necessary to satisfy 
the requirements of 40 CFR part 403; and
    (ii) As to a toxic pollutant introduced into the applicant's 
treatment works by an industrial discharger that is subject to a 
categorical pretreatment standard for the toxic pollutant, the 
categorical standard and a local limit or limits as necessary to 
satisfy the requirements of 40 CFR part 403;
    (iii) As to a toxic pollutant introduced into the applicant's 
treatment works by an industrial discharger for which there is no 
applicable categorical pretreatment standard for the toxic pollutant, 
and the 40 CFR part 403 analysis on the toxic pollutant shows that no 
local limit is necessary, the applicant shall demonstrate to EPA on an 
annual basis during the term of the permit through continued monitoring 
and appropriate technical review that a local limit is not necessary, 
and, where appropriate, require industrial management practices plans 
and other pollution prevention activities to reduce or control the 
discharge of each such pollutant by industrial dischargers to the POTW. 
If such monitoring and technical review of data indicate that a local 
limit is needed, the POTW shall establish and implement a local limit.
    (2) Any local limits developed to meet the requirements of 
paragraphs (b)(1)(i) and (c)(1) of this section shall be:
    (i) Consistent with all applicable requirements of 40 CFR part 403 
and
    (ii) Subject to approval by the Administrator as part of the 301(h) 
application review. The Administrator may require such local limits to 
be revised as necessary to meet the requirements of this section or 40 
CFR part 403.
    (d) Secondary removal equivalency. An applicant shall demonstrate 
that it achieves secondary removal equivalency through the use of a 
secondary treatment pilot (demonstration) plant at the applicant's 
facility which provides an empirical determination of the amount of a 
toxic pollutant removed by the application of secondary treatment to 
the applicant's influent where the applicant's influent has not been 
pretreated. Alternatively, an applicant may make this determination 
using influent that has received industrial pretreatment, 
notwithstanding the definition of secondary removal equivalency in 
Sec. 125.58(w). The NPDES permit shall include effluent limits based on 
the data from the secondary equivalency demonstration when those limits 
are more stringent than effluent limits based on State water quality 
standards or water quality criteria, if applicable, or are otherwise 
required to assure that all applicable environmental protection 
criteria are met. Once such effluent limits are established in the 
NPDES permit, the POTW may either establish local limits or perform 
additional treatment at the POTW or a combination of the two to achieve 
the permit limit.


Sec. 125.66  Toxics control program.

    (a) Chemical analysis. (1) The applicant shall submit at the time 
of application a chemical analysis of its current discharge for all 
toxic pollutants and pesticides as defined in Sec. 125.58(aa) and (p). 
The analysis shall be performed on two 24-hour composite samples (one 
dry weather and one wet weather). Applicants may supplement or 
substitute chemical analyses if composition of the supplemental or 
substitute samples typifies that which occurs during dry and wet 
weather conditions.
    (2) Unless required by the State, this requirement shall not apply 
to any small section 301(h) applicant which certifies that there are no 
known or suspected sources of toxic pollutants or pesticides and 
documents the certification with an industrial user survey as described 
by 40 CFR 403.8(f)(2).
    (b) Identification of sources. The applicant shall submit at the 
time of application an analysis of the known or suspected sources of 
toxic pollutants or pesticides identified in Sec. 125.66(a). The 
applicant shall to the extent practicable categorize the sources 
according to industrial and nonindustrial types.
    (c) Industrial pretreatment requirements. (1) An applicant that has 
known or suspected industrial sources of toxic pollutants shall have an 
approved pretreatment program in accordance with 40 CFR part 403.
    (2) This requirement shall not apply to any applicant which has no 
known or suspected industrial sources of toxic pollutants or pesticides 
and so certifies to the Administrator.
    (3) The pretreatment program submitted by the applicant under this 
section shall be subject to revision as required by the Administrator 
prior to issuing or renewing any section 301(h) modified permit and 
during the term of any such permit.
    (4) Implementation of all existing pretreatment requirements and 
authorities must be maintained through the period of development of any 
additional pretreatment requirements that may be necessary to comply 
with the requirements of this subpart.
    (d) Nonindustrial source control program. (1) The applicant shall 
submit a proposed public education program designed to minimize the 
entrance of nonindustrial toxic pollutants and pesticides into its 
POTW(s) which shall be implemented no later than 18 months after 
issuance of a 301(h) modified permit.
    (2) The applicant shall also develop and implement additional 
nonindustrial source control programs on the earliest possible 
schedule. This requirement shall not apply to a small applicant which 
certifies that there are no known or suspected water quality, sediment 
accumulation, or biological problems related to toxic pollutants or 
pesticides in its discharge.
    (3) The applicant's nonindustrial source control programs under 
paragraph (d)(2) of this section shall include the following schedules 
which are to be implemented no later than 18 months after issuance of a 
section 301(h) modified permit:
    (i) A schedule of activities for identifying nonindustrial sources 
of toxic pollutants and pesticides; and
    (ii) A schedule for the development and implementation of control 
programs, to the extent practicable, for nonindustrial sources of toxic 
pollutants and pesticides.
    (4) Each proposed nonindustrial source control program and/or 
schedule submitted by the applicant under this section shall be subject 
to revision as determined by the Administrator prior to issuing or 
renewing any section 301(h) modified permit and during the term of any 
such permit.


Sec. 125.67  Increase in effluent volume or amount of pollutants 
discharged.

    (a) No modified discharge may result in any new or substantially 
increased discharges of the pollutant to which the modification applies 
above the discharge specified in the section 301(h) modified permit.
    (b) Where pollutant discharges are attributable in part to combined 
sewer overflows, the applicant shall minimize existing overflows and 
prevent increases in the amount of pollutants discharged.
    (c) The applicant shall provide projections of effluent volume and 
mass loadings for any pollutants to which the modification applies in 
5-year increments for the design life of its facility.


Sec. 125.68  Special conditions for section 301(h) modified permits.

    Each section 301(h) modified permit issued shall contain, in 
addition to all applicable terms and conditions required by 40 CFR part 
122, the following:
    (a) Effluent limitations and mass loadings which will assure 
compliance with the requirements of this subpart;
    (b) A schedule or schedules of compliance for:
    (1) Pretreatment program development required by Sec. 125.66(c);
    (2) Nonindustrial toxics control program required by 
Sec. 125.66(d); and
    (3) Control of combined sewer overflows required by Sec. 125.67.
    (c) Monitoring program requirements that include:
    (1) Biomonitoring requirements of Sec. 125.63(b);
    (2) Water quality requirements of Sec. 125.63(c);
    (3) Effluent monitoring requirements of Secs. 125.60(b), 125.62(c) 
and (d), and 125.63(d).
    (d) Reporting requirements that include the results of the 
monitoring programs required by paragraph (c) of this section at such 
frequency as prescribed in the approved monitoring program.

Appendix to Subpart G--Applicant Questionnaire for Modification of 
Secondary Treatment Requirements

    OMB Control Number 2040-0088 Expires on 2/28/96 Public reporting 
burden for this collection of information is estimated to average 
1,295 - 19,552 hours per response, for small and large applicants, 
respectively. The reporting burden includes time for reviewing 
instructions, gathering data, including monitoring and toxics 
control activities, and completing and reviewing the questionnaire. 
Send comments regarding the burden estimate or any other aspect of 
this collection, including suggestions for reducing the burden, to 
Chief, Information Policy Branch, U.S. Environmental Protection 
Agency, 401 M St., SW (2136), Washington, DC 20460 and Office of 
Management and Budget, Office of Information and Regulatory Affairs, 
Attn: Desk Officer for EPA, Washington, DC 20503.

I. Introduction

    1. This questionnaire is to be submitted by both small and large 
applicants for modification of secondary treatment requirements 
under section 301(h) of the Clean Water Act (CWA). A small applicant 
is defined as a POTW that has a contributing population to its 
wastewater treatment facility of less than 50,000 and a projected 
average dry weather flow of less than 5.0 million gallons per day 
(mgd, 0.22 cubic meters/sec) [40 CFR 125.58(c)]. A large applicant 
is defined as a POTW that has a population contributing to its 
wastewater treatment facility of at least 50,000 or a projected 
average dry weather flow of its discharge of at least 5.0 million 
gallons per day (mgd, 0.22 cubic meters/sec) [40 CFR 125.58(c)]. The 
questionnaire is in two sections, a general information and basic 
requirements section (part II) and a technical evaluation section 
(part III). Satisfactory completion by small and large dischargers 
of the appropriate questions of this questionnaire is necessary to 
enable EPA to determine whether the applicant's modified discharge 
meets the criteria of section 301(h) and EPA regulations (40 CFR 
part 125, subpart G).
    2. Most small applicants should be able to complete the 
questionnaire using available information. However, small POTWs with 
low initial dilution discharging into shallow waters or waters with 
poor dispersion and transport characteristics, discharging near 
distinctive and susceptible biological habitats, or discharging 
substantial quantities of toxics should anticipate the need to 
collect additional information and/or conduct additional analyses to 
demonstrate compliance with section 301(h) criteria. If there are 
questions in this regard, applicants should contact the appropriate 
EPA Regional Office for guidance.
    3. Guidance for responding to this questionnaire is provided by 
the newly amended section 301(h) technical support document. Where 
available information is incomplete and the applicant needs to 
collect additional data during the period it is preparing the 
application or a letter of intent, EPA encourages the applicant to 
consult with EPA prior to data collection and submission. Such 
consultation, particularly if the applicant provides a project plan, 
will help ensure that the proper data are gathered in the most 
efficient matter.
    4. The notation (L) means large applicants must respond to the 
question, and (S) means small applicants must respond.

II. General Information and Basic Data Requirements

A. Treatment System Description

    1. (L,S) On which of the following are you basing your 
application: a current discharge, improved discharge, or altered 
discharge, as defined in 40 CFR 125.58? [40 CFR 125.59(a)]
    2. (L,S) Description of the Treatment/Outfall System [40 CFR 
125.62(a) and 125.62(e)]
    a. Provide detailed descriptions and diagrams of the treatment 
system and outfall configuration which you propose to satisfy the 
requirements of section 301(h) and 40 CFR part 125, subpart G. What 
is the total discharge design flow upon which this application is 
based?
    b. Provide a map showing the geographic location of proposed 
outfall(s) (i.e., discharge). What is the latitude and longitude of 
the proposed outfall(s)?
    c. For a modification based on an improved or altered discharge, 
provide a description and diagram of your current treatment system 
and outfall configuration. Include the current outfall's latitude 
and longitude, if different from the proposed outfall.
    3. (L,S) Primary or equivalent treatment requirements [40 CFR 
125.60]
    a. Provide data to demonstrate that your effluent meets at least 
primary or equivalent treatment requirements as defined in 40 CFR 
125.58(r) [40 CFR 125.60]
    b. If your effluent does not meet the primary or equivalent 
treatment requirements, when do you plan to meet them? Provide a 
detailed schedule, including design, construction, start-up and full 
operation, with your application. This requirement must be met by 
the effective date of the new section 301(h) modified permit.
    4. (L,S) Effluent Limitations and Characteristics [40 CFR 
125.61(b) and 125.62(e)(2)]
    a. Identify the final effluent limitations for five-day 
biochemical oxygen demand (BOD5), suspended solids, and pH upon 
which your application for a modification is based:

--BOD5 ______ mg/L
--Suspended solids ______ mg/L
--pH ______ (range)

    b. Provide data on the following effluent characteristics for 
your current discharge as well as for the modified discharge if 
different from the current discharge:

Flow (m3/sec):
--minimum
--average dry weather
--average wet weather
--maximum
--annual average

    BOD5 (mg/L) for the following plant flows:

--minimum
--average dry weather
--average wet weather
--maximum
--annual average

    Suspended solids (mg/L) for the following plant flows:

--minimum
--average dry weather
--average wet weather
--maximum
--annual average

    Toxic pollutants and pesticides (ug/L):

--list each toxic pollutant and pesticide
--list each 304(a)(1) criteria and toxic pollutant and pesticide

    pH:
--minimum
--maximum

    Dissolved oxygen (mg/L, prior to chlorination) for the following 
plant flows:

--minimum
--average dry weather
--average wet weather
--maximum
--annual average

    Immediate dissolved oxygen demand (mg/L).
    5. (L,S) Effluent Volume and Mass Emissions [40 CFR 125.62(e)(2) 
and 125.67]
    a. Provide detailed analyses showing projections of effluent 
volume (annual average, m3/sec) and mass loadings (mt/yr) of 
BOD5 and suspended solids for the design life of your treatment 
facility in five-year increments. If the application is based upon 
an improved or altered discharge, the projections must be provided 
with and without the proposed improvements or alterations.
    b. Provide projections for the end of your five-year permit term 
for 1) the treatment facility contributing population and 2) the 
average daily total discharge flow for the maximum month of the dry 
weather season.
    6. (L,S) Average Daily Industrial Flow (m3/sec). Provide or 
estimate the average daily industrial inflow to your treatment 
facility for the same time increments as in question II.A.5 above. 
[40 CFR 125.66]
    7. (L,S) Combined Sewer Overflows [40 CFR 125.67(b)]
    a. Does (will) your treatment and collection system include 
combined sewer overflows?
    b. If yes, provide a description of your plan for minimizing 
combined sewer overflows to the receiving water.
    8. (L,S) Outfall/Diffuser Design. Provide the following data for 
your current discharge as well as for the modified discharge, if 
different from the current discharge: [40 CFR 125.62(a)(1)]

--Diameter and length of the outfall(s) (meters)
--Diameter and length of the diffuser(s) (meters)
--Angle(s) of port orientation(s) from horizontal (degrees)
--Port diameter(s) (meters)
--Orifice contraction coefficient(s), if known
--Vertical distance from mean lower low water (or mean low water) 
surface and outfall port(s) centerline (meters)
--Number of ports
--Port spacing (meters)
--Design flow rate for each port, if multiple ports are used 
(m3/sec)

B. Receiving Water Description

    1. (L,S) Are you applying for a modification based on a 
discharge to the ocean [40 CFR 125.58(n)] or to a saline estuary [40 
CFR 125.58(v)]? [40 CFR 125.59(a)].
    2. (L,S) Is your current discharge or modified discharge to 
stressed waters as defined in 40 CFR 125.58(z)? If yes, what are the 
pollution sources contributing to the stress? [40 CFR 125.59(b)(4) 
and 125.62(f)].
    3. (L,S) Provide a description and data on the seasonal 
circulation patterns in the vicinity of your current and modified 
discharge(s). [40 CFR 125.62(a)].
    4. (L) Oceanographic conditions in the vicinity of the current 
and proposed modified discharge(s). Provide data on the following: 
[40 CFR 125.62(a)].

--Lowest ten percentile current speed (m/sec)
--Predominant current speed (m/sec) and direction (true) during the 
four seasons
--Period(s) of maximum stratification (months)
--Period(s) of natural upwelling events (duration and frequency, 
months)
--Density profiles during period(s) of maximum stratification

    5. (L,S) Do the receiving waters for your discharge contain 
significant amounts of effluent previously discharged from the 
treatment works for which you are applying for a section 301(h) 
modified permit? [40 CFR 125.57(a)(9)]
    6. Ambient water quality conditions during the period(s) of 
maximum stratification: at the zone of initial dilution (ZID) 
boundary, at other areas of potential impact, and at control 
stations. [40 CFR 125.62(a)]
    a. (L) Provide profiles (with depth) on the following for the 
current discharge location and for the modified discharge location, 
if different from the current discharge:

--BOD5 (mg/L)
--Dissolved oxygen (mg/L)
--Suspended solids (mg/L)
--pH
--Temperature ( deg.C)
--Salinity (ppt)
--Transparency (turbidity, percent light transmittance)
--Other significant variables (e.g., nutrients, 304(a)(1) criteria 
and toxic pollutants and pesticides, fecal coliform bacteria)

    b. (S) Provide available data on the following in the vicinity 
of the current discharge location and for the modified discharge 
location, if different from the current discharge: [40 CFR 
125.61(b)(1)]

--Dissolved oxygen (mg/L)
--Suspended solids (mg/L)
--pH
--Temperature ( deg.C)
--Salinity (ppt)
--Transparency (turbidity, percent light transmittance)
--Other significant variables (e.g., nutrients, 304(a)(1) criteria 
and toxic pollutants and pesticides, fecal coliform bacteria)
    c. (L,S)Are there other periods when receiving water quality 
conditions may be more critical than the period(s) of maximum 
stratification? If so, describe these and other critical periods and 
data requested in 6.a. for the other critical period(s). [40 CFR 
125.62(a)(1)].
    7. (L) Provide data on steady state sediment dissolved oxygen 
demand and dissolved oxygen demand due to resuspension of sediments 
in the vicinity of your current and modified discharge(s) (mg/L/
day).

C. Biological Conditions

    1. (L) Provide a detailed description of representative 
biological communities (e.g., plankton, macrobenthos, demersal fish, 
etc.) in the vicinity of your current and modified discharge(s): 
within the ZID, at the ZID boundary, at other areas of potential 
discharge-related impact, and at reference (control) sites. 
Community characteristics to be described shall include (but not be 
limited to) species composition; abundance; dominance and diversity; 
spatial/temporal distribution; growth and reproduction; disease 
frequency; trophic structure and productivity patterns; presence of 
opportunistic species; bioaccumulation of toxic materials; and the 
occurrence of mass mortalities.
    2. (L,S)a. Are distinctive habitats of limited distribution 
(such as kelp beds or coral reefs) located in areas potentially 
affected by the modified discharge? [40 CFR 125.62(c)]
    b. If yes, provide information on type, extent, and location of 
habitats.
    3. (L,S)a. Are commercial or recreational fisheries located in 
areas potentially affected by the discharge? [40 CFR 125.62 (c) and 
(d)]
    b. If yes, provide information on types, location, and value of 
fisheries.

D. State and Federal Laws [40 CFR 125.61 and 125.62(a)(1)]

    1. (L,S) Are there water quality standards applicable to the 
following pollutants for which a modification is requested:

--Biochemical oxygen demand or dissolved oxygen?
--Suspended solids, turbidity, light transmission, light scattering, 
or maintenance of the euphotic zone?
--pH of the receiving water?

    2. (L,S) If yes, what is the water use classification for your 
discharge area? What are the applicable standards for your discharge 
area for each of the parameters for which a modification is 
requested? Provide a copy of all applicable water quality standards 
or a citation to where they can be found.
    3. (L,S) Will the modified discharge: [40 CFR 125.59(b)(3)].

--Be consistent with applicable State coastal zone management 
program(s) approved under the Coastal Zone Management Act as 
amended, 16 U.S.C. 1451 et seq.? [See 16 U.S.C. 1456(c)(3)(A)]
--Be located in a marine sanctuary designated under Title III of the 
Marine Protection, Research, and Sanctuaries Act (MPRSA) as amended, 
16 U.S.C. 1431 et seq., or in an estuarine sanctuary designated 
under the Coastal Zone Management Act as amended, 16 U.S.C. 1461? If 
located in a marine sanctuary designated under Title III of the 
MPRSA, attach a copy of any certification or permit required under 
regulations governing such marine sanctuary. [See 16 U.S.C. 
1432(f)(2)]
--Be consistent with the Endangered Species Act as amended, 16 
U.S.C. 1531 et seq.? Provide the names of any threatened or 
endangered species that inhabit or obtain nutrients from waters that 
may be affected by the modified discharge. Identify any critical 
habitat that may be affected by the modified discharge and evaluate 
whether the modified discharge will affect threatened or endangered 
species or modify a critical habitat. [See 16 U.S.C. 1536(a)(2)].

    4. (L,S) Are you aware of any State or Federal laws or 
regulations (other than the Clean Water Act or the three statutes 
identified in item 3 above) or an Executive Order which is 
applicable to your discharge? If yes, provide sufficient information 
to demonstrate that your modified discharge will comply with such 
law(s), regulation(s), or order(s). [40 CFR 125.59 (b)(3)].

III. Technical Evaluation

A. Physical Characteristics of Discharge [40 CFR 125.62(a)]

    1. (L,S) What is the critical initial dilution for your current 
and modified discharge(s) during (1) the period(s) of maximum 
stratification? and (2) any other critical period(s) of discharge 
volume/composition, water quality, biological seasons, or 
oceanographic conditions?
    2. (L,S) What are the dimensions of the zone of initial dilution 
for your modified discharge(s)?
    3. (L) What are the effects of ambient currents and 
stratification on dispersion and transport of the discharge plume/
wastefield?
    4. (S) Will there be significant sedimentation of suspended 
solids in the vicinity of the modified discharge?
    5. (L) Sedimentation of suspended solids
    a. What fraction of the modified discharge's suspended solids 
will accumulate within the vicinity of the modified discharge?
    b. What are the calculated area(s) and rate(s) of sediment 
accumulation within the vicinity of the modified discharge(s) (g/
m2/yr)?
    c. What is the fate of settleable solids transported beyond the 
calculated sediment accumulation area?

B. Compliance with Applicable Water Quality Standards and CWA 
Sec. 304(a)(1) water quality criteria [40 CFR 125.61(b) and 
125.62(a)]

    1. (L,S) What is the concentration of dissolved oxygen 
immediately following initial dilution for the period(s) of maximum 
stratification and any other critical period(s) of discharge volume/
composition, water quality, biological seasons, or oceanographic 
conditions?
    2. (L,S) What is the farfield dissolved oxygen depression and 
resulting concentration due to BOD exertion of the wastefield during 
the period(s) of maximum stratification and any other critical 
period(s)?
    3. (L) What are the dissolved oxygen depressions and resulting 
concentrations near the bottom due to steady sediment demand and 
resuspension of sediments?
    4. (L,S) What is the increase in receiving water suspended 
solids concentration immediately following initial dilution of the 
modified discharge(s)?
    5. (L) What is the change in receiving water pH immediately 
following initial dilution of the modified discharge(s)?
    6. (L,S) Does (will) the modified discharge comply with 
applicable water quality standards for:

--Dissolved oxygen?
--Suspended solids or surrogate standards?
--pH?

    7. (L,S) Provide data to demonstrate that all applicable State 
water quality standards, and all applicable water quality criteria 
established under Section 304(a)(1) of the Clean Water Act for which 
there are no directly corresponding numerical applicable water 
quality standards approved by EPA, are met at and beyond the 
boundary of the ZID under critical environmental and treatment plant 
conditions in the waters surrounding or adjacent to the point at 
which your effluent is discharged. [40 CFR 125.62(a)(1)]
    8. (L,S) Provide the determination required by 40 CFR 
125.61(b)(2) for compliance with all applicable provisions of State 
law, including water quality standards or, if the determination has 
not yet been received, a copy of a letter to the appropriate 
agency(s) requesting the required determination.

C. Impact on Public Water Supplies [40 CFR 125.62(b)]

    1. (L,S) Is there a planned or existing public water supply 
(desalinization facility) intake in the vicinity of the current or 
modified discharge?
    2. (L,S) If yes:
    a. What is the location of the intake(s) (latitude and 
longitude)?
    b. Will the modified discharge(s) prevent the use of intake(s) 
for public water supply?
    c. Will the modified discharge(s) cause increased treatment 
requirements for public water supply(s) to meet local, State, and 
EPA drinking water standards?

D. Biological Impact of Discharge [40 CFR 125.62(c)]

    1. (L,S) Does (will) a balanced indigenous population of 
shellfish, fish, and wildlife exist:

--Immediately beyond the ZID of the current and modified 
discharge(s)?
--In all other areas beyond the ZID where marine life is actually or 
potentially affected by the current and modified discharge(s)?

    2. (L,S) Have distinctive habitats of limited distribution been 
impacted adversely by the current discharge and will such habitats 
be impacted adversely by the modified discharge?
    3. (L,S) Have commercial or recreational fisheries been impacted 
adversely by the current discharge (e.g., warnings, restrictions, 
closures, or mass mortalities) or will they be impacted adversely by 
the modified discharge?
    4. (L,S*) Does the current or modified discharge cause the 
following within or beyond the ZID: [40 CFR 125.62(c)(3)]

--Mass mortality of fishes or invertebrates due to oxygen depletion, 
high concentrations of toxics, or other conditions?
--An increased incidence of disease in marine organisms?
--An abnormal body burden of any toxic material in marine organisms?
--Any other extreme, adverse biological impacts?

    5. (L,S) For discharges into saline estuarine waters: [40 CFR 
125.62 (c)(4)]

--Does or will the current or modified discharge cause substantial 
differences in the benthic population within the ZID and beyond the 
ZID?
--Does or will the current or modified discharge interfere with 
migratory pathways within the ZID?
--Does or will the current or modified discharge result in 
bioaccumulation of toxic pollutants or pesticides at levels which 
exert adverse effects on the biota within the ZID?

    No section (h) modified permit shall be issued where the 
discharge enters into stressed saline estuarine waters as stated in 
40 CFR 125.59(b)(4).
    6. (L,S) For improved discharges, will the proposed improved 
discharge(s) comply with the requirements of 40 CFR 125.62(a) 
through 125.62(d)? [40 CFR 125.62(e)]
    7. (L,S) For altered discharge(s), will the altered discharge(s) 
comply with the requirements of 40 CFR 125.62(a) through 125.62(d)? 
[40 CFR 125.62(e)]
    8. (L,S) If your current discharge is to stressed ocean waters, 
does or will your current or modified discharge: [40 CFR 125.62(f)]

--Contribute to, increase, or perpetuate such stressed condition?
--Contribute to further degradation of the biota or water quality if 
the level of human perturbation from other sources increases?
--Retard the recovery of the biota or water quality if human 
perturbation from other sources decreases?

E. Impacts of Discharge on Recreational Activities [40 CFR 
125.62(d)]

    1. (L,S) Describe the existing or potential recreational 
activities likely to be affected by the modified discharge(s) beyond 
the zone of initial dilution.
    2. (L,S) What are the existing and potential impacts of the 
modified discharge(s) on recreational activities? Your answer should 
include, but not be limited to, a discussion of fecal coliform 
bacteria.
    3. (L,S) Are there any Federal, State, or local restrictions on 
recreational activities in the vicinity of the modified 
discharge(s)? If yes, describe the restrictions and provide 
citations to available references.
    4. (L,S) If recreational restrictions exist, would such 
restrictions be lifted or modified if you were discharging a 
secondary treatment effluent?

F. Establishment of a Monitoring Program [40 CFR 125.63]

    1. (L,S) Describe the biological, water quality, and effluent 
monitoring programs which you propose to meet the criteria of 40 CFR 
125.63. Only those scientific investigations that are necessary to 
study the effects of the proposed discharge should be included in 
the scope of the 301(h) monitoring program [40 CFR 
125.63(a)(1)(i)(B)].
    2. (L,S) Describe the sampling techniques, schedules, and 
locations, analytical techniques, quality control and verification 
procedures to be used.
    3. (L,S) Describe the personnel and financial resources 
available to implement the monitoring programs upon issuance of a 
modified permit and to carry it out for the life of the modified 
permit.

G. Effect of Discharge on Other Point and Nonpoint Sources [40 CFR 
125.64]

    1. (L,S) Does (will) your modified discharge(s) cause additional 
treatment or control requirements for any other point or nonpoint 
pollution source(s)?
    2. (L,S) Provide the determination required by 40 CFR 125.64(b) 
or, if the determination has not yet been received, a copy of a 
letter to the appropriate agency(s) requesting the required 
determination.

H. Toxics Control Program and Urban Area Pretreatment Program [40 
CFR 125.65 and 125.66]

    1. a. (L,S) Do you have any known or suspected industrial 
sources of toxic pollutants or pesticides?
    b. (L,S) If no, provide the certification required by 40 CFR 
125.66(a)(2) for small dischargers, and required by 40 CFR 
125.66(c)(2) for large dischargers.
    c. (L,S*) Provide the results of wet and dry weather effluent 
analyses for toxic pollutants and pesticides as required by 40 CFR 
125.66(a)(1). (* to the extent practicable)
    d. (L,S*) Provide an analysis of known or suspected industrial 
sources of toxic pollutants and pesticides identified in (1)(c) 
above as required by 40 CFR 125.66(b). (* to the extent practicable)
    2. (S)a. Are there any known or suspected water quality, 
sediment accumulation, or biological problems related to toxic 
pollutants or pesticides from your modified discharge(s)?
    (S)b. If no, provide the certification required by 40 CFR 
125.66(d)(2) together with available supporting data.
    (S)c. If yes, provide a schedule for development and 
implementation of nonindustrial toxics control programs to meet the 
requirements of 40 CFR 126.66(d)(3).
    (L)d. Provide a schedule for development and implementation of a 
nonindustrial toxics control program to meet the requirements of 40 
CFR 125.66(d)(3).
    3. (L,S) Describe the public education program you propose to 
minimize the entrance of nonindustrial toxic pollutants and 
pesticides into your treatment system. [40 CFR 125.66(d)(1)]
    4. (L,S) Do you have an approved industrial pretreatment 
program?
    a. If yes, provide the date of EPA approval.
    b. If no, and if required by 40 CFR part 403 to have an 
industrial pretreatment program, provide a proposed schedule for 
development and implementation of your industrial pretreatment 
program to meet the requirements of 40 CFR part 403.
    5. Urban area pretreatment requirement [40 CFR 125.65] 
Dischargers serving a population of 50,000 or more must respond.
    a. Provide data on all toxic pollutants introduced into the 
treatment works from industrial sources (categorical and 
noncategorical).
    b. Note whether applicable pretreatment requirements are in 
effect for each toxic pollutant. Are the industrial sources 
introducing such toxic pollutants in compliance with all of their 
pretreatment requirements? Are these pretreatment requirements being 
enforced? [40 CFR 125.65(b)(2)]
    c. If applicable pretreatment requirements do not exist for each 
toxic pollutant in the POTW effluent introduced by industrial 
sources,

--provide a description and a schedule for your development and 
implementation of applicable pretreatment requirements [40 CFR 
125.65(c)], or
--describe how you propose to demonstrate secondary removal 
equivalency for each of those toxic pollutants, including a schedule 
for compliance, by using a secondary treatment pilot plant. [40 CFR 
125.65(d)]

[FR Doc. 94-19058 Filed 8-8-94; 8:45 am]
BILLING CODE 6560-50-P