Clean Water Act Section 301(h) variances in Alaska

Summary

Section 301(h) of the Clean Water Act allows cities to request a variance (or "waiver") from secondary treatment standards for wastewater discharges into marine waters. Only facilities that applied for an original 301(h) waiver by December 29, 1982, and met the applicable statutory and regulatory criteria, were eligible for a 301(h)-modified permit. There are nine 301(h) facilities in Alaska.

What is a 301(h) waiver?

When cities discharge wastewater, they must treat it to a certain minimum level – at least secondary treatment – under the Clean Water Act. Cities that discharge to oceans or saline estuaries were able to apply for a waiver from the minimum secondary treatment. The deadline to apply was Dec. 29, 1982.

The 301(h) waiver means they don’t need to treat their wastewater as much because there can be a lot of mixing in oceans and estuaries.

Cities were only granted a waiver if they met a set of factors in the regulations that make sure that the biological community is not harmed by the wastewater discharge.

Does a 301(h) permit exempt a facility from the requirements of the Clean Water Act?

No. Section 301(h) only "waives" secondary treatment requirements, which pertain only to:

Total suspended solids (TSS)
Biological oxygen demand (BOD)
pH

TSS is a measure of the solids in the discharge. BOD is a measure of the organic material, which can impact oxygen levels in the receiving water, and pH is a measure of the acidity or alkalinity of the discharge. Secondary treatment requires 85% removal of TSS and BOD in effluent, and a pH from 6.0 to 9.0.

The "waiver" relaxes the secondary treatment requirement to 30% removal of TSS and BOD in the effluent. The pH range can be below 6.0 and above 9.0, if state water quality standards can be met.

A 301(h) "waiver" is not a waiver from any other pollutant.

301(h) facilities must still meet all applicable state water quality standards and Clean Water Act Section 304(a)(1) criteria for all parameters, including toxics, bacteria, and nutrients.

Why are 301(h) waivers allowed?

Federal law provides for it in Section 301(h) of the Clean Water Act if facilities can prove they meet a set of criteria designed to ensure the discharge will be protective of human health and the environment and meet state water quality standards.

How common are 301(h) waivers?

There are currently 24 301(h)-modified permits in the U.S. and territories, including nine for the following facilities in Alaska:

How do you get a waiver?

Is it becoming harder to keep a waiver? Have the number of waivers decreased? Is there a policy to eliminate 301(h) waivers?

Only facilities which applied for an original 301(h) waiver by Dec. 29, 1982, and met the statutory and regulatory criteria of Clean Water Act Section 301(h) were eligible for a 301(h)-modified permit. There are no new 301(h) facilities.

The number of waivers has declined over time from about 45 to 24 currently (including nine in Alaska). There are several reasons for the steady decline in the number of 301(h) permits, including:

New state water quality requirements.
Facilities not complying with their permits.
Facilities not meeting primary treatment.
Some communities deciding to upgrade to secondary treatment technology.

Clean Water Act Section 301(h) is a statutory provision and there is no EPA policy to eliminate 301(h) waivers. If facilities and their receiving waters continue to meet the 301(h) criteria, they can continue to operate under a 301(h) waiver in perpetuity.

Why is EPA issuing these permits? What is the role of the state of Alaska?

Only EPA can issue 301(h)-modified permits.

When EPA writes permits, we must request certification under Section 401 of the Clean Water Act from the jurisdiction where the permit discharges. Since these permits discharge to Alaska waters, EPA needs to request 401 certification from the Alaska Department of Environmental Conservation.

ADEC’s role is to review the permit to ensure it meets Alaska’s water quality standards and state law, and to provide a 401 certification of the 301(h)-modified permit. The 401 certification is the state’s concurrence that the permit meets state law, including water quality standards.

EPA cannot issue a 301(h) permit unless the state grants 401 certification or waives their right to certify. The 401 certification issued by ADEC can contain conditions to meet state water quality requirements, including the authorization of mixing zones and schedules of compliance to meet new permit requirements.

EPA works in close coordination with ADEC throughout the permit renewal process for each facility.

What are the 301(h) criteria?

The Clean Water Act has nine criteria and regulations that implement those criteria. In general, the criteria are designed to ensure the facility:

Is well-operated and monitored.
Does not cause harm to the receiving water, human health, or biota.
Meets all state requirements and water quality standards.
Is discharging to a healthy receiving water.

For additional questions about 301(h) facilities in Alaska, please contact our NPDES Permitting Section at epar10wd-npdes@epa.gov.