[Federal Register Volume 61, Number 169 (Thursday, August 29, 1996)]
[Rules and Regulations]
[Pages 45832-45833]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-21952]



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Part XII





Environmental Protection Agency





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40 CFR Part 125



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

  Federal Register / Vol. 69, No. 169 / Thursday, August 29, 1996 Rules 
and Regulations  

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 125

[FRL-5601-2]


Modification of Secondary Treatment Requirements for Discharges 
Into Marine Waters

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final Rule.

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SUMMARY: EPA is promulgating a final amendment to the regulations which 
implement section 301(h) of the Clean Water Act (CWA'' or ``Act''). 
Section 301(h) provides for waivers of secondary treatment requirements 
for discharges into marine waters by publicly owned treatment works 
(POTWs) that demonstrate their compliance with the 301(h) criteria. 
This final amendment promulgates without change a previously proposed 
rule to amend the 301(h) regulations to remove a certain restriction on 
the eligibility of 301(h) POTWs to request a longer-than-monthly 
averaging period to calculate compliance with the Act's requirement to 
remove a minimum of 30 percent of the biochemical oxygen demanding 
material (BOD) in the influent. EPA determined that this restriction 
should be eliminated to provide additional flexibility to POTWs in 
demonstrating compliance with the requirements for a waiver. As a 
result of this amendment, all 45 applicants for a 301(h) waiver will be 
able to request a longer than monthly averaging period for calculating 
compliance with the BOD removal requirement.

EFFECTIVE DATE: These regulations take effect on September 30, 1996. In 
accordance with 40 CFR 23.2, the Administrator's promulgation occurs at 
1:00 p.m. EDT on September 12, 1996.

ADDRESSES: Copies of comments submitted and the docket for this 
rulemaking are available for review at EPA's Water Docket; Room 2616 
Mall, 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 Street, SW, 
Washington, DC 20460; (202) 260-8448.

SUPPLEMENTARY INFORMATION:

I. Regulated entities

    The entities potentially affected by today's action are those 
publicly owned treatment works that discharge into marine waters and 
that have applied under section 301(h) of the Clean Water Act, 33 
U.S.C. Sec. 1311(h), for a waiver of secondary treatment requirements. 
Regulated categories and entities include:

------------------------------------------------------------------------
                                                Examples of regulated   
                 Category                             entities          
------------------------------------------------------------------------
Local governments.........................  Publicly owned treatment    
                                             works SIC Code 4952.       
------------------------------------------------------------------------

(Although EPA is using the term ``regulated'' entities, the effect of 
today's action is generally to relax the regulatory restrictions on 
these entities.) This table, however, is only a guide and is not 
intended to be exhaustive. You should consult today's final regulations 
themselves to determine their full impact and applicability. If you 
have further questions about whether today's action affects your 
regulatory obligations, contact the person or persons listed above (see 
FOR FURTHER INFORMATION CONTACT section).

II. Today's Final Action

    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), which 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) of the CWA defines 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.

    EPA published final regulations implementing the WQA amendments to 
section 301(h) on August 9, 1994 (59 FR 40642). Among other things, the 
regulations added 40 CFR 125.60(c), which provided flexibility to 
POTWs, in certain specified circumstances, to use a longer-than-monthly 
(not to exceed yearly) averaging period to calculate compliance with 
the 30-percent removal requirements for BOD. However, under the second 
sentence of Sec. 125.60(c)(1) (the ``eligibility provision''), 
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. In 
December, 1994, four Alaskan municipalities filed a petition for review 
of the final regulations in the U.S. Court of Appeals for the Ninth 
Circuit. (Anchorage Water & Wastewater Utility, et al, v. U.S. EPA, No. 
94-70913 (9th Cir.)) The petitioners claim that the eligibility 
provision should be eliminated from the regulations.
    After reexamining the need for the eligibility provision, EPA 
published a proposed rule to delete it. [61 FR 7404, February 27, 
1996.] The Agency received only six comments on this proposal, from 
five POTWs, including the four petitioners in the lawsuit, and one 
State wastewater control association. All commenters firmly supported 
the proposed rule's deletion of the eligibility provision. Accordingly, 
EPA is today promulgating a final rule that, as proposed, deletes the 
eligibility provision.
    Several of the commenters also offered some technical information 
to explain why they feel they cannot or will not be able in the future 
to meet the BOD removal requirement on a monthly basis. These latter 
remarks are not comments on the eligibility provision, and are thus 
outside the scope of this particular rulemaking action. We have 
forwarded this information to the appropriate EPA Regional offices for 
their information.
    As a result of today's final rule, a POTW's historical data cannot 
cause the POTW to be automatically ineligible for longer-than-monthly 
averaging. However, the Agency emphasizes that removing the eligibility 
provision does 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 in its permit application. Under the amended 
regulations, POTWs who apply 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. The Regional 
Administrator will still consider the historical data and could base a 
decision to grant or deny the longer averaging period in whole or in 
part on these data. EPA also notes that even if it grants a longer 
averaging

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period, the required frequency of monitoring for BOD will remain the 
same as if the period for calculating compliance for BOD removal were 
the monthly average basis.
    The remaining provisions of the 301(h) regulations remain in full 
force and effect, and are not the subject of this final rule.

III. Supporting Documentation

    Analyses under E.O. 12866, the Unfunded Mandates Reform Act of 
1995, the Regulatory Flexibility Act, and the Paperwork Reduction Act.
    Today's action simply removes 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. Therefore, 
this action has no regulatory impact and is not a ``significant'' 
regulatory action within the meaning of E.O. 12866, and no regulatory 
impact analysis is required.
    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 
will 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.

Submission to Congress and the General Accounting Office

    Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business 
Regulatory Enforcement Fairness Act of 1996, EPA submitted a report 
containing this rule and other required information to the U.S. Senate, 
the U.S. House of Representatives and the Comptroller General of the 
General Accounting Office prior to publication of the rule in today's 
Federal Register. This rule is not a ``major rule'' as defined by 5 
U.S.C. 804(2).

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: August 21, 1996.
Carol M. Browner,
Administrator.

    For the reasons set forth in the preamble, part 125 of title 40, 
chapter I of the Code of Federal Regulations is amended as set forth 
below:

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 amended by removing paragraph (c)(1); by 
redesignating paragraphs (c)(2) and (c)(3) as (c)(1) and (c)(2); and by 
revising the introductory text of newly redesignated 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 requests if the applicant demonstrates 
to the Administrator's satisfaction that:
* * * * *
[FR Doc. 96-21952 Filed 8-28-96; 8:45 am]
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