The Clean Water Act Section 301 (h) Program

Amendments to Regulations Issued

Office of Water
Oceans and Coastal Protection Division
(4504F)
August 1994

History

In 1972, Congress passed the Federal Water Pollution Control Act Amendments, which required Publicly Owned Treatment Works (POTWs) to achieve secondary treatment capability by 1977. After passage, some municipalities with POTWs that discharged into marine waters argued that this requirement might be unnecessary on the grounds that marine POTWs usually discharge into deeper waters with large tides and substantial currents, which allow for greater dilutio n and dispersion than their freshwater counterparts. As a result, Congress added section 301(h) to the Clean Water Act in 1977, allowing for a case-by-case review of treatment requirements for marine dischargers that applied by September 13, 1979. Eligibl e POTW applicants that met the set of environmentally stringent criteria in section 301(h) would receive a modified National Pollutant Discharge Elimination System (NPDES) permit waiving the secondary treatment requirements for the conventional pollutants biochemical oxygen demand (BOD), suspended solids (SS), and pH. EPA issued regulations and a technical support document for the 301(h) program in 1979.

Since then, section 301(h) has been amended as follows:

• The 1981 Municipal Waste Water Treatment Construction Grants Amendments extended the deadline for applications to December 29, 1982, and removed the requirement that the applicant have a pre-existing discharge. In addition, they allowed the POTWs that had already achieved secondary treatment to apply and prohibited the granting of 301(h) modified permits for discharge of sewage sludge.

  The regulations were revised in 1982 to address these changes in legislation and to reflect program experience.

• Section 303 of the Water Quality Act of 1987 added a number of new requirements and prohibitions to the program. All POTWs applying for a 301(h) modified permit must achieve primary or equivalent treatment to remove at least 30 percent of conventional pollutants and must meet water quality criteria. Further, those POTWs serving a population of more than 50,000 with industrial sources of toxic pollutants must implement an urban area pretreatment program. Also, POTWs discharging to stressed estuaries are not eligible for a 301(h) waiver.

  EPA has revised the section 301(h) regulations in response to amendments in the Water Quality Act of 1987.(See EPA's Final Regulations).

Size of the Program

EPA received 208 301(h) waiver applications prior to the December 29, 1982 deadline for applications. The status of the 208 applications is as follows:

• 87 applicants have withdrawn or are no longer eligible.
• 76 applications have been denied by EPA.
• 45 applicants and permittees remain, including 36 waiver recipients and 9 applicants with decisions pending.

The 9 applications awaiting a decision include some that were tentatively denied and are being revised by the applicants.

The majority of 301(h) waiver recipients are small POTWs that discharge less than 5 million gallons per day (MGD), although the flows from these small POTWs represent only 4 percent of the 620 MGD of wastewater under the 301(h) program. Less than half of the 45 applicants/permittees are located within the continental United States in four states (California, Maine, Massachusetts, and New Hampshire). Beyond the continental United States, there are 9 applicants in Alaska 2 in Hawaii, 6 in Puerto Rico, and 8 in U.S. territorial islands in the Pacific and Atlantic Oceans.

Existing Regulatory and Environmental Requirements

A POTW applying for a 301(h) waiver must meet the criteria established in the Clean Water Act, including:

• Existence of and compliance with water quality standards.
• Protection and propagation of a balanced indigenous population of fish, shellfish, and wildlife.
• Allowance of recreational activities.
• Establishment of a monitoring program.
• Satisfactory toxics control programs, including an approved pretreatment program.
• No additional treatment requirements for other sources as a result of the waiver.
• No increase in effluent volume or amount of pollutants discharged above limits in 301(h) modified permit.
• Protection of public water supplies.

A POTW receiving a 301(h) modified permit is required to monitor the impact of its discharge on the water quality and marine biota. EPA uses the POTWs monitoring results to evaluate applications for permit renewal and compliance with NPDES permit terms and conditions.

EPA's Final Regulations

To fulfill the requirements of section 303 of the Water Quality Act, EPA has revised the 301(h) regulations, including the following:

• A POTW receiving a 301(h) modified permit must achieve primary or equivalent treatment to remove at least 30 percent of BOD and 30 percent of SS. At least 10 301(h) applicants or permittees that are not yet at primary treatment will need to upgrade th eir facilities.
• A POTW with a service population of 50,000 or more and industrial sources of toxic pollutants must meet the new requirements of an urban area pretreatment program. At least 13 applicants or permittees may be affected by this requirement. For each toxi c pollutant introduced by an industrial discharger, the applicant must demonstrate that it has in effect either (1)an applicable pretreatment requirement or (2)a program that achieves secondary removal equivalency. To fulfill the urban pretreatment requir ement, POTWs must also demonstrate that industrial sources are in compliance with all pretreatment requirements and that the requirements are enforced.
• Applicants are required to demonstrate compliance with water quality criteria established under section 304(a)(1) of the Clean Water Act. Where a corresponding state numerical water quality standard exists for a specific pollutant applicants would nee d to meet this standard instead of the section 304(a)(1) criterion.
• Applicants and permittees with tentative or final approval prior to the enactment of the Water Quality Act (statutorily grandfathered) must meet the above primary and urban area pretreatment requirements by August 9, 1996 or upon permit renewal whiche ver is later. All other applicants or permittees must meet these requirements by August 9, 1996.
• POTWs discharging into a stressed saline estuary or the New York Bight Apex are not eligible for a 301(h) waiver.
• The scope of the monitoring program is limited to those investigations necessary to study the effects of the discharge.

EPA published proposed revisions to 301(h) regulations in theFederal Registeron January 24, 1991, and held a hearing on the proposed regulations on March 7, 1991, in Washington, D.C. In promulgating the final revised regulations, EPA considered all written and verbal comments on the proposed regulations and on the amended technical support document that were submitted to the Agency during the public comment period. The final revisions were signed by the Administrator on July 14, 1994. The final regulations were published in theFederal Registeron August 9, 1994. An amended technical support document has been prepared to accompany the final rule.

Additional sources of information on the 301(h) program include:

• Amended 301(h) Technical Support Document (1994).
• EPA Federal Regulations at 40 CFR Part 125, Subpart G.
• Information Collection Request Supporting Statement (1993).
• Various technical guidance documents.

For more informationon the 301(h) program, contact Virginia Fox-Norse at (202)260-8448.

Highlights of the Water Quality Act Amendments and New Regulations

• Primary treatment to remove at least 30 percent each of BOD and SS
• Urban area pretreatment program
• Compliance with water quality criteria
• Restrictions on discharges into stressed estuaries
• Limited scope of monitoring

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