[Federal Register Volume 61, Number 39 (Tuesday, February 27, 1996)]
[Proposed Rules]
[Pages 7404-7406]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-4387]




[[Page 7403]]

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Part IV





Environmental Protection Agency





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40 CFR Part 125



Modification of Secondary Treatment Requirements for Discharges Into 
Marine Waters; Proposed Rule

  Federal Register / Vol. 61, No. 39 / Tuesday, February 27, 1996 / 
Proposed Rules   

[[Page 7404]]


ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 125

[FRL-5428-9]
RIN 2040-AC72


Modification of Secondary Treatment Requirements for Discharges 
Into Marine Waters

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing an amendment to the regulations contained at 
40 CFR Part 125, Subpart G, which implement section 301(h) of the Clean 
Water Act (``CWA'' or ``Act''), 33 U.S.C. 1311(h). Section 301(h) 
provides for modifications of secondary treatment requirements for 
discharges into marine waters by publicly owned treatment works (POTWs) 
that demonstrate their compliance with the 301(h) criteria. As required 
by statutory amendments, a provision was added to the 301(h) 
regulations in 1994 that requires 301(h) POTWs to show they are 
removing a minimum of 30 percent of the biological oxygen demanding 
material (BOD) from their influent. Under the rule, compliance with the 
30-percent removal requirement of BOD was generally to be achieved on a 
monthly-average basis. The rule did, however, allow some applicants, 
subject to an eligibility provision, to request that they be allowed to 
average their BOD removal percentages over a longer than monthly 
period. The eligibility provision excluded facilities that had 
demonstrated an ability to achieve 30-percent BOD removal on a monthly-
average basis over the calendar year prior to August 9, 1994. Today's 
proposal would amend 40 CFR 125.60(c)(1) to provide increased 
flexibility by removing the eligibility provision, thereby allowing any 
301(h) POTWs to apply for a longer than monthly BOD averaging period. 
The remaining provisions of the 301(h) regulations remain in full force 
and effect, and are not the subject of this proposed rule.

DATES: Comments on this proposed amendment must be submitted by March 
28, 1996.

ADDRESSES: Comments on this proposed amendment should be addressed to: 
Virginia Fox-Norse, Oceans and Coastal Protection Division (4504F), 
U.S. Environmental Protection Agency, 401 M Street, SW, Washington, DC 
20460; (202) 260-8448. The official record for this rulemaking is 
available for viewing at EPA's Water Docket; Room L-102, 401 M Street, 
SW, Washington, DC 20460. For access to the Docket materials, call 
(202) 260-3027 between 9 a.m. and 3:30 p.m., Monday through Friday, 
excluding legal holidays, for an appointment. The EPA public 
information regulation (40 CFR part 2) provides that a reasonable fee 
may be charged for copying.

FOR FURTHER INFORMATION CONTACT: Virginia Fox-Norse, Office of 
Wetlands, Oceans and Watersheds, Oceans and Coastal Protection Division 
(4504F), U.S. Environmental Protection Agency, 401 M St., SW, 
Washington, D.C. 20460; (202) 260-8448.

SUPPLEMENTARY INFORMATION:

Preamble Outline

I. Background
    A. Water Quality Act Amendments of 1987
    B. Final Rulemaking of 1994
    C. Legal Challenge to Regulations
II. Today's Proposal
III. Discussion of Alternatives
IV. Supporting Documentation

I. Background

A. Water Quality Act Amendments of 1987

    On February 4, 1987, Congress passed the Water Quality Act of 1987 
(WQA) (Pub. L. 100-4), which amended CWA section 301(h) in several 
important respects. Among other things, the WQA added a new section 
301(h)(9), the provision relevant to this rulemaking. Section 301(h)(9) 
requires that ``* * * at the time the 301(h) modification becomes 
effective, the applicant will be discharging effluent which has 
received at least primary or equivalent treatment * * *.'' Section 
301(h)(9) also defined primary or equivalent treatment as ``treatment 
by screening, sedimentation, and skimming adequate to remove at least 
30 percent of the biochemical oxygen demanding material (BOD) and of 
the suspended solids (SS) in the treatment works influent, and 
disinfection, where appropriate.''

B. Final Rulemaking of 1994

    EPA published the final regulations implementing the WQA amendments 
to section 301(h) on August 9, 1994 (59 FR 40642). That rulemaking 
added provisions in 40 CFR 125.60 regarding, among other things, the 
statutory requirement for a minimum of primary or equivalent treatment. 
Under the proposed regulations (January 24, 1991, 56 FR 2814) 
applicants would have had to demonstrate compliance with the 30 percent 
BOD removal requirement using a monthly averaging period for 
calculating compliance. However, a number of commenters indicated that 
the 30 percent removal rate for BOD may be difficult to achieve on a 
monthly average basis in certain cases. In response, in the August 1994 
final rule, EPA added Sec. 125.60(c) to provide flexibility to POTWs, 
in certain specified circumstances, to use up to a yearly averaging 
period to calculate compliance with the 30-percent removal requirements 
for BOD. The flexibility is only for the averaging period used to 
calculate compliance. The rule still requires all applicants to meet 
the statutory 30-percent removal requirement for BOD. As discussed in 
the preamble to the final regulations (59 FR 40648-40649), EPA believed 
that the monthly averaging period would still be appropriate for most 
applicants.
    Under the second sentence of Sec. 125.60(c)(1), facilities that had 
demonstrated an ability to achieve 30 percent removal of BOD on a 
monthly average basis over the calendar year prior to August 9, 1994, 
(the date the rule was published) were excluded from eligibility to 
apply for this longer than monthly averaging period. Specifically, this 
sentence (the ``eligibility provision'') states:

    If, however, the applicant has demonstrated an ability to 
achieve 30 percent removal of BOD on a monthly average basis over 
the calendar year prior to August 9, 1994, the applicant shall not 
be eligible for an averaging basis other than monthly.

This provision was based on the assumption that facilities that had 
consistently achieved 30 percent removal of BOD on a monthly average 
basis would continue to be capable of achieving the 30 percent 
performance standard on a monthly basis.

C. Legal Challenge to Regulations

    In December 1994, four Alaskan municipalities filed a petition for 
review in the U.S. Court of Appeals for the Ninth Circuit challenging, 
in particular, the above-described limitation on eligibility for 
applying for a longer than monthly averaging period to calculate 
compliance with the 30-percent removal requirement for BOD. [Anchorage 
Water & Wastewater Utility, et al, v. U.S. EPA, No. 94-70913 (9th 
Cir.)] Petitioners claim that all POTWs should be eligible at least to 
apply for alternative averaging periods for removal of BOD. Because the 
issues raised by these parties concern the eligibility provision--which 
EPA added at the time of the final rule in response to public comments 
on the proposal--they are arising now for the first time.
    The petitioners believe the eligibility provision is unwarranted 
and inappropriate because there may be 

[[Page 7405]]
cases in which a POTW may have met the 30-percent removal requirement 
for the preceding year, but may not be able to meet it on a monthly 
basis in the future for reasons beyond their control.

II. Today's Proposal

    EPA has considered the issues raised by the Alaskan municipalities. 
In response, EPA agrees that the absolute bar represented by the 
eligibility provision is unnecessary and could be too inflexible. 
Therefore, EPA today proposes to delete the eligibility provision 
(i.e., the second sentence of 125.60(c)(1)). This proposal would not 
change the showing that POTWs must make to have the longer than monthly 
averaging period approved, and EPA continues to expect that situations 
where the longer averaging period is shown to be justified will be the 
exception rather than the rule.
    The Agency emphasizes that removing the eligibility provision would 
not automatically provide any POTW with a longer averaging period for 
determining compliance with the 30-percent removal requirement for BOD. 
Instead, it simply allows all POTWs to request a longer averaging 
period. Under the regulations, POTWs who make such a request will 
continue to be required to demonstrate to the satisfaction of the 
Regional Administrator that a longer period is warranted in order to be 
granted relief from the requirement to meet BOD removal on a monthly 
basis. In determining whether to grant a POTW's request for longer than 
monthly averaging under Sec. 125.60(c)(2)(iii), the Regional 
Administrator will still consider the POTW's historical removal data as 
a relevant factor. EPA also notes that if it grants a longer averaging 
period, the required frequency of monitoring for BOD will remain the 
same as if the period for calculating compliance for BOD removal was 
the monthly average basis.
    As noted above, all POTWs remain subject to the statutorily 
required 30 percent BOD removal condition, and all POTWs that want a 
longer than monthly averaging period will need to make a showing to the 
Regional Administrator that a longer period is warranted, and actual 
monitoring frequencies for BOD will not change. These safeguards, 
coupled with the continued requirement that the discharge must meet all 
the other 301(h) environmental criteria, lead EPA to believe that the 
level of environmental protection would not be changed by this proposal 
in any material way, and the flexibility provided is appropriate.

III. Discussion of Alternatives

    The Agency considered other alternatives for providing relief from 
the strict bar on requesting a longer averaging period represented by 
the eligibility provision, such as: (1) deleting the eligibility 
provision of Sec. 125.60(c)(1) and restricting the factors in the 
Regional Administrator's determination to grant or deny the longer 
averaging period; (2) retaining the eligibility provision, but adding a 
provision that allows an applicant that achieved 30-percent removal of 
BOD on a monthly average basis over the year preceding August 9, 1994, 
to satisfy the Regional Administrator that the data did not reflect 
representative conditions; and (3) retaining a modified eligibility 
provision that would be based on the BOD removal rates achieved over 
longer than one year preceding August 9, 1994, e.g., 2 years, to 
account for a range of conditions.
    EPA rejected these alternatives because simply eliminating the 
eligibility provision in Sec. 125.60(c)(1) best provided the necessary 
flexibility while still providing adequate environmental safeguards. 
EPA believes that removing the eligibility provision while still making 
past monitoring performance a relevant factor in determining a longer 
than monthly averaging period, will not result in any decrease in 
environmental protection. Deleting this provision will form the basis 
for a settlement of the legal challenge brought by the Alaskan 
municipalities. EPA also proposes to delete a parallel clause in 
Sec. 125.60(c)(2), as a conforming change.
    Nevertheless, the Agency requests comments on all aspects of 
today's proposal, including whether any of these alternatives or other 
alternatives not discussed here, including not changing the eligibility 
provision, would be a more appropriate course of action on this issue. 
EPA will consider adopting any of the above alternatives or others that 
are advocated in any public comments.

IV. Supporting Documentation

    Analyses under E.O. 12866, the Unfunded Mandates Reform Act of 
1995, the Regulatory Flexibility Act, and the Paperwork Reduction Act.
    Because today's action simply proposes to remove provisions of an 
existing rule from the CFR that limit the ability of affected POTWs to 
request flexibility in calculating compliance with removal requirements 
for BOD, this action has no regulatory impact and is not a 
``significant'' regulatory action within the meaning of E.O. 12866, and 
is therefore not subject to OMB review.
    This action also does not impose any Federal mandate on State, 
local or tribal governments or the private sector within the meaning of 
the Unfunded Mandates Reform Act of 1995. For the same reasons, 
pursuant to the Regulatory Flexibility Act, I certify that this action 
would not have a significant economic impact on a substantial number of 
small entities. Finally, deletion of these provisions from the CFR does 
not affect requirements under the Paperwork Reduction Act.

List of Subjects in 40 CFR Part 125

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

    Dated: February 15, 1996.
Carol M. Browner,
Administrator.

    For the reasons set forth in the preamble, EPA proposes to amend 40 
CFR part 125, subpart G as follows:

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

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

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

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

    2. Section 125.60 is proposed to be amended by removing paragraph 
(c)(1); by redesignating paragraphs (c)(2) as (c)(1) and (c)(3) as 
(c)(2); and by revising the introductory text of newly designated 
paragraph (c)(1) to read as follows:


Sec. 125.60  Primary or equivalent treatment requirements.

* * * * *
    (c)(1) An applicant may request that the demonstration of 
compliance with the requirement under paragraph (b) of this section to 
provide 30 percent removal of BOD be allowed on an averaging basis 
different from monthly (e.g., quarterly), subject to the demonstrations 
provided in paragraphs (c)(1)(i), (ii) and (iii) of this section. The 
Administrator may approve such 

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requests if the applicant demonstrates to the Administrator's 
satisfaction that:
* * * * *
[FR Doc. 96-4387 Filed 2-26-96; 8:45 am]
BILLING CODE 6560-50-P